• ' ;i Og Cornell University Library The original of this book 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/cu31924017160833 Cornell University Library KFM2447.1.T52 Digest of the decisions of the Supreme j 3 1924 017 160 833 DIGEST DECISIONS SUPREME JUDICIAL COURT Commonwealth of Massachusetts FROM 1804 TO 1886 AS CONTAINED IN THE SERIES OF REPORTS BEGINNING WITH THE FIRST AND ENDING WITH THE ONE HUNDRED AND FORTY-FIRST VOLUME OF MASSACHUSETTS REPORTS BY MONTGOMERY H. THROOP. VOLUME I A to M 1887 BANKS & BROTHERS 473 and 475 Broadway 144 Nassau Street Albany, N. Y. New York. ~7& /§t* ( Entered according to act of Congress in the year one thousand eight hundred and eighty- seven, by BANKS & BROTHERS, in the office of Librarian of Congress, at Washington. PREFACE. In the preparation of this work, the author, in order to render the substance of the decisions clearly and easily accessible and intelligible, has endeavored to avoid too much diffuseness on the one hand, and too much condensation on the other; each of which tends, in a dif- ferent mode, to confusion, difficulty, and obscurity. To that end, he has not contented himself with transcribing the head notes of the cases; but each case, with the exceptions presently mentioned, has been subjected to a careful original condensation by him, so as to present clearly and concisely the points decided, unless the head note of a case has already made a condensation, which he was unable to improve. Where a decision lays down general principles, applicable to a variety of cases, presenting differences of detail, he has permitted himself to use greater fulness of statement of such principles, than where a case is of more limited application. With respect to those cases, unfortunately too numerous, where the head notes give long statements of facts, such statements have been so condensed as to present only an outline of the facts, upon which the decision neces- sarily turned; but where that could not be done, so as to present the result compactly, the case is merely referred to, with a state- ment of the general nature of the controversy, sufficient to enable the inquirer to determine whether it bears upon the subject of his inquiry, so that he may, if necessary, examine it in the volume of reports. The pruning knife has been freely applied to obsolete cases. Where the author has thought that such a case might shed light upon a living question, it has been stated with sufficient fulness to indicate the particu- lar points presented; but cases, which appear to have entirely survived their practical utility, have been (not omitted, but) grouped together, under a general statement of the subject to which they relate. Great care has been bestowed upon the cross references, so that those, whose minds grasp a subject of investigation from a point of view differ- iv PREFACE. ent from the author's, may be readily directed to the place where the subject is treated. In giving decisions, depending upon statutes, the author has added a reference to the corresponding provisions of the Public Statutes, where it was practicable so to do. For the sake of condensation, and homogeneity and uniformity of citation, each volume of the different reports, between the seventeenth and the ninety-seventh Massachusetts, has been cited by the appropriate number in the series of Massachusetts reports, preceded by an abbrevia- tion of the reporter's name, and the number of the volume in his series. A table, showing the appropriate number in the Massachusetts reports, of each volume of the intermediate reports, is appended hereto. MONTGOMERY H. THROOP. 302 State Street, Albany, N. Y., July 1, 1887. JUSTICES OP THE SUPERIOR COURT OF JUDICATURE OF THE PROVINCE OF MASSACHUSETTS BAY. 1692-1701. William Stoughton. 1701-1703. Wait Winthrop. 1703-1707. Isaac Addington. 1707-1717. Wait Winthrop. 1718-1728. Samuel Sewali CHIEF JUSTICES 1728-1745. Benjamin Lynde. 1745-1751. Paul Dudley. 1752-1760. Stephen Sewali. 1761-1769. Thomas Hutchinson. 1769-1771 . Benjamin Lynde. 1772-1775. Peter Oliver. JUSTICES. 1692-1699. Thomas Danf orth. 1729-1733. John Cushing. 1692-1701. Wait Winthrop. 1733-1745. Jonathan Remington. 1693-1694. John Richards. 1736-1756. Richard SaltonstalL 1692-1718. Samuel SewalL 1737-1738. Thomas Greaves. 1694-1702. Elisha Cooke. 1739-1752. Stephen Sewali.] 1700-1712. John Walley. 1745-1747. Nathaniel Hubbard. 1701-1702. John Saffin. 1745-1769. Benjamin Lynde. 1702-1712. John Hathorne. 1747-1771. John Cushing, 1702-1708. John Leverett. 1752-1766. Chambers Russell 1708-1715. Jonathan Corwin 1756-1773. Peter Oliver. 1713-1729. Benjamin Lynde. 1767-1775. Edmund Trowbridge. 1712-1718. Nathaniel Thomas 1771-1775. Foster Hutchinson. 1715-1736. Addington Davenport 1772-1774. Nathaniel Ropes. 1718-1745. Paul Dudley. 1772-1775. William Cushing. 1718-1737. Edward Quincy. 1774-1775. William Browne. JUSTICES OF THE SUPERIOR COURT OF JUDICATURE AND THE SUPREME JUDICIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS. CHIEF JUSTICES. 1775-1777. John Adams* 1777-1789. "William Cushing. 1790-1791. Nathanial Peasley Sargeant.| 1791-1806. Francis Dana. 1806-1813. Theophilus Parsons. 1814. Samuel Sewall. 1814-1830. Isaac Parker. 1830-1860. Lemuel Shaw. 1860-1867. George Tyler Bigelow. 1868-1873. Keuben Atwater Chapman. 1873-1882. Horace Gray. 1882. Marcus Morton. * Did not take his seat. JUSTICES. 1775-1777. William Cushing. 1848-1853. Richard Fletcher. 1776-1779 Jedediah Foster. 1850-1860 George Tyler Bigelow. 1776-1782 James Sullivan. 1852-1853. Caleb Cushing. 1776-1790 Nathaniel Peasley Sargeant. 1853-1859. Benjamin Franklin Thomas. 1777-1789. David Sewall. 1853-1864. Pliny Merrick. 1782-1797 Increase Sumner. 1859-1869. Ebenezer Rockwood Hoar. 1785-1791 Francis Dana. 1860-1868 Reuben Atwater Chapman. 1790-1804. Robert Treat Paine. 1864-1873. Horace Gray. 1790-1800. Nathan Cushing. 1865-1866. James Denison Colt. 1792-1802. Thomas Dawes. 1866-1869. D wight Foster. 1797-1803. Theophilus Bradbury. 1866-1875. John Wells. 1800-1814. Samuel Sewall. 1868-1881. James Denison Colt. 1801-1805. Simeon Strong. 1869-1881. Seth Ames. 1801-1824. George Thacher. 1869-1882 Marcus Morton. 1802-1813. Theodore Sedgwick. 1873-1882. William Crowninshield Endicott 1806-1814. Isaac Parker. 1873-1877. Charles Devens. 1813-1823. Charles Jackson. ' 1875-1882. Otis Phillips Lord. 1814-1815. Daniel Dewey. 1877-1881. Augustus Lord Soule. 1814-1843. Samuel Putnam. 1881. Walbridge Abner Field. 1815-1850. Samuel Sumner Wade. 1881. Charles Devens. 1824-1825. Levi Lincoln. 1881. William Allen. 1825-1840. Marcus Morton. 1882. Charles Allen. 1837-1866. Charles Augustus Dewey. 1882-1885 Waldo Colburn. 1842-1847. Samuel Hubbard. 1882. Oliver Wendell Holmes, Jr. 1848. Charles Edward Forbes. 1885. William Sewall Gardner. 1848-1865 Theron Metcalf . TABLE SHOWING THE APPROPRIATE NUMBER IN THE MASSACHUSETTS REPORTS, OF EACH VOLUME OP THE DIFFERENT SERIES OF REPORTS, BETWEEN 17 MASS. AND 97 MASS. 1 Pickering 18 Massachusetts. 4 Cushing fl l (3.) Under the statutes 52 II. Reference by rule of court 52 III. Revocation and modification of submission 53 IV. The arbitrators; their authority, and proceedings before them 54 V. Theaward 55 (1.) When and by whom made and returned 55 (2.) What may be awarded; rejecting an erroneous separable award 56 (3.) Requisites of an award 57 (4.) Interpretation of an award 58 (5.) Effect; oral evidence to qualify or explain 4 58 VI. Proceedings in court to vacate or enforce the award 59 VII. Action upon the award 59 Architect. [See Arbitration, arts. 21 to 23.] Army. [See United States Forces.] Arraignment. [See Practice, II, (2).] ARREST AND FALSE IMPRISONMENT : 60 I. Arrest in a civil cause. 60 (1.) When, how, and by whom made 60 (2.) Privilege and exemption from arrest 61 II. Arrest in a criminal cause 61 (1.) Process to authorize; officer's powers 61 (2.) Arrest without process ' 61 III. Action for false imprisonment 62 Arrest of judgment. [See Judgment, III.] ARSON, AND OTHER CRIMINAL BURNING 63 ASSAULT AND BATTERY 64 I. Criminal proceedings 64 II. Action for damages 66 Assembly, disturbance of. [See Disturbance of Meeting.] Assessment. [See Corporation, II; III; Highway, IV; Insurance Company, II, (3)« • Taxation, III; IV; VI; Town and City, VI.] Assessor of damages. [See Auditor.] Assessor of taxes. [See Taxation, VI.] ASSIGNMENT 67 I. What operates as an assignment 67 II. What is or is not assignable 68 III. Validity and effect 69 IV. Actions and defences founded upon assigned demands 70 V. Assignment for benefit of creditors 71 Association. [Joint stock, see Joint Stock Association. Benevolent, beneficiary, etc., see Charity; Benevolent Association. Loan and fund,, see Loan and Fund Associa- ' tion. Religious, see Religious Association.] ASSUMPSIT [AND ACTION OF CONTRACT HERETOFORE KNOWN AS ASSUMPSIT] 73 I. The action in general 73 (1.) Where it lies generally 73 (2.) Where it does not lie 74 (3.) Waiving a tort and bringing assumpsit 74 II. Where a special count is or is not necessary 75 II T The general counts 76 (1.) For money lent \ 76 (2.) For money had and received 76 , (3.) For money paid, laid out, and expended 80 (4.) For work, labor, and services 81 (5 ) For goods bargained and sold, and goods sold and delivered . ., 83 (6.) Upon an account stated, or an account annexed. [See Account.]. TV. Practice; Pleadings; Evidence 83 Asylum for insane. [See Charity, VI; Poor, II, (5).] Atheist. [See Witness, II, (1).] TABLE OF CONTENTS. xiii ATTACHMENT 85 I. How an attachment is made 85 (1.) The writ and the adtion 85 (2.) Attachable real property 85 (3.) How real property is attached 87 (4.) Attachable personal property 87 (5.) How personal property is attached 89 (6.) Fraudulent attachments 90 II. Bights, duties, and liabilities after the attachment , 90 (1.) Officer 90 (2.) Debtor 92 (8.) Receiptor 92 HI. Rights and liabilities under simultaneous or successive attachments 94 TV. Dissolution 94 (1.) By bond 94 (2.) In other modes 95 ATTEMPT TO COMMIT A CRIME 97 Attempt to escape. [See Escape.] ' Attestation. [As to the limitation of an action upon an attested note, etc . , and what is such an instrument within the statute, see Limitation of Action, IV, (1). As to the attest- ation of a will, see Will, I, (2). As to the attestation of other instruments, see the titles of those instruments respectively. As to proof of an instrument by an attesting witness, see Evidence, V, (2).] ATTORNEY AT LAW 98 I. Authority 98 II. Rights, duties, and liabilities 99 1 III. Compensation, and remedies therefor 100 (1.) Action for compensation 100 (2.) Attorney's lien 100 ATTORNEY-GENERAL 100 Attorney in fact. [See Agency; Contract, I; Deed, I, (1); I, (2).] AUCTION AND AUCTIONEER 101 AUDITA QUERELA 103 AUDITOR; ASSESSOR OF DAMAGES 103 AUDITOR OF ACCOUNTS 105 Auditor of the Commonwealth. [See Opinion of the Justices, (13 A.) 95 593.] Autrefois acquit; autrefois convict. [See Former Adjudication, I.] Average. [See Insurance, V, (12); Y, (13); Shipping, HI, (4).] Award. [See Arbitration; International Award.] B. Baggage. [See Boarding House; Carrier, II, (4); Inn and Inn-keeper.] BAIL IN AN ACTION 106 I. Giving bail; liability of bail 106 II. Rights and remedies of bail , 106 (1.) General rules 106 (2.) Surrender of principal 107 (3.) Discharge in other modes; failure to charge 107 BAIL IN CRIMINAL PROCEEDINGS 108 BAILMENT l g I. General rules; gratuitous bailee 108 II. Bailee for hire; hirer 108 (1.) Warehouseman \\\\ iq& (2.) Other bailees for hire; hirer !.'."."."."." 10ft BANK AND BANKING 110 I. Banks organized under the laws of this Commonwealth 110 (1.) General rights and liabilities under charter, and other statutes 110 (2.) Stockholders' rights and liabilities HO (3.) Insolvency; sequestration; winding up "]. m xiv TABLE OF CONTENTS. Bane, etc., continued. II. National banks 113 III. Banking business 112 (1.) Deposits and discounts 112 (2.) Collections 113 (3.) Circulating notes 113 (4.) Usages, customs, and by-laws; clearing house 114 IV. Officers and servants 114 (1.) Directors 114 12.) President 115 (3.) Cashier 115 (4) Other officers and servants: general rules 115 (5.) Security for official conduct 115 BANKRUPTCY 116 I. Under the acts of 1800 and 1841 116 (1.) Under U. S. St. 1800, Ch. 19 116 (2.) Under U. S. St. 1841, Ch. 9 117 II. Under the act of 1867, and subsequent provisions 117 (1.) Effect and operation of the act 117 (2.) The adjudication 117 (3.) The assignment; assignee's powers and duties 118 (4.) Proof of debts 119 (5.) Composition ' 120 (6.) The discharge .' 120 (7.) New promise to pay debt discharged 121 Bar. [See Former Adjudication; Pleading.] Bargain and sale. [See Deed.] BARRATRY. (OriminaZ Law) 121 BARRATRY. (Maritime Law) 122 BASTARD AND BASTARDY PROCESS 122 I. Who is a bastard; evidence thereupon 122 II. Maintenance of a bastard child 123 (1.) The statute and proceedings generally 123 (2.) Complaint; accusation; examination 123 (3.) Warrant; commitment; bond for appeorance 124 (4.) Proceedings in the superior court before trial 124 (5.) Trial; evidence 125 (6.) Final order; enforcement thereof 126 BAWDY-HOUSE AND PROSTITUTION 127 Beach. [See Boundary Line, EC, (2); Flats; Sea Shore.] Beggar. [See Idle and disorderly Person.] BENEVOLENT ASSOCIATION ; BENEFICIARY ASSOCIATION 127 BeneTolent trust. [See Charity; Devise and Bequest; Trust.] Bequest. [See Devise and Bequest; Will.] BETTERMENTS 127 BETTING; WAGERING; GAMING 128 Bigamy. [See Polygamy.] BILL OP EXCHANGE AND PROMISSORY NOTE 129 I. Nature, requisites, and general validity 129 (1.) Form; execution; interpretation 129 (2.) Contingent notes or drafts, and notes payable in chattels 130 (3.) Other non-negotiable notes and drafts ." 130 (4.) Guarantor and surety 131 (5.) Filling blanks '. 132 (6.) Consideration .....'....'. 133 (9.) Acceptance of bill; authority to draw; promise to accept !.'...'.'. 133 II. Indorsement 134 (1.) What instruments are negotiable 134 (2.) Mode and sufficiency of indorsement 135 (3.) Indorser's rights and liabilities \ ...'."..". 135 HI. Presentation, demand, and notice 137 (1.) Sufficiency of presentation and demand.. !'.!!!."!!'..'!'.".!!!'.!!!! 137 '2.) Time of presentation and demand; grace ..,', 138 (3.) Time and sufficiency of notice !',,.!'. 138 TABLE OF CONTENTS. xr Bill op Exchange, etc., amtinued. (4.) Necessity and effect of presentation, demand, and notice; waiver thereof 140 (5.) Protest ™ IV. Check J" V. Action • rJS (1.) Time when it may be brought ™ (2.) Pleadings \\* (3 ) Parties (4.) When defence not admissible in action by holder 144 (5.) Defences in other cases j™ (6.) Evidence; damages **° (7.) Lost, stolen, or destroyed bill or note low Bill of exceptions. [See Exception.] BILL OP LADING 150 BILL OF PARTICULARS 153 Bill of peace. [See Quieting Title, II.] Bill of sale. [See Chattel Mortgage, I; Sale, I; II; Shipping, I, (1).] Billiards. [See Amusement, II, (3).] Bird. [See Animal and Bird.] BISHOP 153 Blackmail. [See Extortion, II.] BLASPHEMY 153 Blood. [See Alien and Citizen; Bastard, I; Descent and Distribution, I; II.] BOARD OF HEALTH 153 BOARDING-HOUSE 154 Boat. [See Carrier; Sea Shore; Shipping.] Body-stealing. [See Burial, III.] BOND 155 I. Nature and general requisites 155 (1.) Execution 155 (2.) Validity 155 II. Bond of a public officer 156 (1.) General rules 156 (2.) Sheriff or constable 156 (3.) Tax collector 157 (4.) Other public officers 157 III. Other special bonds 158 (1.) Bond to indemnify 158 (2.) Bond for faithful performance by agent or corporate officer 159 (3.) Bottomry bond 159 (4.) Negotiable coupon bond - 160 IV. Action 160 Books. [As evidence, see Evidence, I, (8); VIII, (4).] BOSTON 161 BOSTON AND MAINE RAILROAD 162 Boston and Roxbury Mill Corporation. [See Mill; also Tremont Imp. Co. v. Boston Water Power Co., (10 A.) 92 261.] Bottomry bond. [See Bond, III, (3).] BOUNDARY LINE 162 I. General rules 162 (1.) Description; general principles of interpretation 162 (2.) Parties' or privies' acts, admissions, or acquiescence 163 (3.) Other evidence 164 II. Particular boundaries, and location of boundaries 164 (1.) Ways 164 (2.) Monuments 165 (3) Seashore and flats 166 (4.) Fresh water streams and ponds 167 Bounty. [See United States Forces, II.] Bowling. [See Amusement, II, (4).] XVI TABLE OF CONTENTS. Brawler. [See Idle, etc., Person.] Breach of promise. [See Promise to marry.] Breaking and entering a building. [See Burglary.] BRIBERY 167 BRIDGE AND BRIDGE COMPANY 167 I. General rules as to bridges 168 II. Bridges as highways 168 (1.) How built or established 168 (2.) Liability of city or town to repair 169 III. Bridge companies, and bridges built by railroad corporations 170 IV. Draw tender or superintendent , 171 Broker. [See Agency, V, (2).] Brothel. [See Bawdy-House; Disorderly House.] Burden of proof. [See Evidence, III.] BURGLARY ; CRIMINAL BREAKING AND ENTERING ; BURGLARIOUS IN- STRUMENTS 171 BURIAL; CEMETERY; VIOLATING GRAVE 173 I. General rules 173 II. Town cemeteries, and other public burying grounds 173 III. Violating grave 174 Burning a building [See Arson.] By-laws and ordinances. [Of private corporations, etc., see Bridge, etc.; Corporation; Insurance; Insurance Company; Joint Stock Association; Turnpike. Of towns and cities, see Town and City, II, (5). See, also, the titles of various subjects, viz.: Animal, etc.: Board of Health; Bridge; Burial, etc.; Inspection; Intoxicating Liquors; Weights and Measures. Effect of revision upon official bond, see Bond, art. 59.] c. Calendar. [See Time.] Calf. [See Indictment, VIII, (69); Provisions.] Cambridge. [Revision of ordinances, effect upon water registrar's bond, see Bond, art. 59. Filling lands to abate nuisance, see Board of Health; Nuisance, III, (3). For various other rulings upon statutes relating to Cambridge, see Town and City.] CAMP MEETING 175 Canal. [See Boundary Line, H, (4); Corporation, X; Nuisance, arts. 28, 29. See, also, Briggs t>. Cape Cod Ship Canal Co., 137 71, cited in Corporation, arts. 20 to 22.] Cancellation of instrument. [See Equity Jurisdiction, II, (12); II, (13); Fraud, V, (2); Injunction, I, (1); II, (4).] Capital and income. [See Income.] Capital trial. [See Supreme Judicial Court; Trial.] CARRIER 175 I. Carrier of property 175 (1.) Who is a carrier ".,.", 175 (2.) General rules as to liability 176 (3.) Connecting lines; and loss, etc., beyond route '..'.'.'.'.'. 177 (4.) Delivery to carrier [\] 178 (5.) Delivery by carrier " ' 178 (6.) Delay ..'.'.'.'.'.'.'.'.'.'. 179 (7.) Liability as warehouseman 179 (8.) Freight and other charges, and lien therefor .'.'..'.'. 180 (9.) Other matters . . . , 181 II. Carrier of persons 181 (1.) General rules !...!!!."!!!.'" .'. ','.'.'. I 181 (2.) Tickets and fare ..!.'.'.'..'.'!!.'..'.'.'!'.!!!! 182 (3.) Acts of officers and servants 182 (4.) Baggage .."...'.',.'..'. '..I'.'.' '.'.'.'. 183 ITI. Special contract relating to liability 184 TV. Homicide by negligence 185 (1.) Action for homicide !!!!!!!!!!!!".! !!!!!.'!!'.!! ! 185 (2.) Indictment '..,"*.*."*. "."".". 185 TABLE OF CONTENTS. xvii CASE, ACTION ON THE 186 CASE STATED 186 Cattle. [See Animal, etc.; Carrier, I; Estray; Fence; Negligence; Railroad, IV, (4); Town and City, II, (5).] Cause of action [See Action.] Caveat emptor. [See Sale, III; Vendor and Vendee, II.] Cemetery. [See Burial, etc.] CERTIORARI 187 I. "Where it lies 187 II. What questions may he raised 188 III. Answer or return 188 IV. Other proceedings; judgment 189 Challenge. [To juror, see Jury, II.] CHAMPERTY AND MAINTENANCE 189 Chancery. [See Equity Jurisdiction; Equity Pleading and Practice.] Charge. [See Exception, I; II; New Trial, II, (2); Trial, III, (1).] Charitable association. [See Benevolent Association.] CHARITY AND CHARITABLE TRUST 190 I. Definitions and general rules 190 II. Validity and effect: trustee 191 III. Administration; cy-pres; visitor 192 IV. Interpretation; proceedings to procure interpretation 193 V. Legal and equitahle proceedings relating to charities 193 VI. Liability of a charitable institution to inmates and others 193 Charlestown'. [See Burial, art. 13; Town and City.] Charter-party. [See Bill of Lading; Insurance, V, (1); V, (7),; V, (9); Shipping, III, (1).] Chattel. [See Personal Property.] CHATTEL MORTGAGE 194 I. Nature and general requisites 194 II. Validity 194 (1.) General rules; interpretation 194 (2.) Delivery of chattel 195 (3.) Recording mortgage 195 III. Rights of parties before foreclosure 196 (1.) General rules 196 (2.) Where the chattel is taken under legal process 198 IV. Foreclosure; discharge; extinguishment 199 V. Wrongful sale, removal, etc. , by mortgagor 200 CHEAT 200 Check. [See Bill of Exchange and Promissory Note, IV; Payment, I, (2).] Child. [Abuse of female child, see Rape. Child omitted from will, see Descent and Dis- tribution, III. Generally, see Bastard; Infant; Negligence; Parent and Child; Seduction.] Church. [See Parish; Religious Association.] Cider. [See Intoxicating Liquors, II, (1).] Cipher, communication in. [See Evidence, IX, (2).] Circuity of action. [See Contract, IV, (4); VI, (2); Covenant, I; Damages, V; Release.] Citizen. [See Alien and Citizen; Domicil.] City. [See Town and City.] Clams. [See Fish, III.] Clearing house. [See Bank and Banking, III, (4); Bill of Exchange, etc., arts. 267, 323.] CLERK , 201 Cloud upon title. [See Quieting Title.] Coal. [See Inspection; Weights and Measures.] Vol. I— c xviii TABLE OF CONTENTS. Coal oil. [See Illuminating Fluid.] Cock-fighting. [See Amusement, II, (2).] COHABITATION, LEWI) AND LASCIVIOUS 30 3 Coining. [See Forgery and Counterfeiting.] COLLATERAL SECURITY 202 Collector. [Of United States customs, see Bond, II, (3); Customs and Collector of Customs. Of United States internal revenue, see Internal Revenue (United States). Of taxes, see Bond, II, (3); Taxation, VII, (1).] COLLEGE 203 COMMISSIONERS 304 Common barrator. [See Barratry (Criminal Law).] Common carrier. [See Carrier. ] Common council. [See Town and City, II, (3).] Common drunkard. [See Drunkenneti ] Common and notorious thief. [See Larceny, n, (3).] COMMON LANDS: GENERAL FIELDS 204 COMMON LAW 205 Common nuisance. [See Nuisance, I; II. Also Bawdy-House; Betting, etc.- Bridge; Disorderly House; Highway, V, (4); Intoxicating Liquors.] Common Pleas. [See Court of Common Pleas.] Common prostitute. [See Bawdy-House, etc.] Common road. [See Highway, I, (1).] Common school. [See School.] Common scold. [See Idle and disorderly Person.] Common, tenant in. [See Joint Tenants, etc.] Common victualler. [See Intoxicating Liquors.] COMMONWEALTH 206 Compensation. [See Assumpsit; Attorney; Constitutional Law, III, (5); Eminent Domain; Executor, etc., VIII, (2); Guardian, etc., IV, (2); Highway, IV; Master and Servant; Railroad, II, (7); Trustee, II, (5).] Complaint. [See Indictment and Complaint.] COMPOSITION WITH CREDITORS 207 COMPOUNDING A CRIME 208 Compromise. [See Accord and Satisfaction; Composition; Discontinuance.] Computation of time. [See Time.] Concealing incumbrance on mortgaged property. [See Mortgage, I, (10); Indict- ment? VIII, (58).] Concealing mortgaged property. [See Chattel Mortgage, V; Indictment, VIII, (58).] Concert. [See Amusement, I.] CONDITION 208 I. General rules 209 (1.) Definition; whether a restriction constitutes or does not constitute a condition; interpretation; effect 209 (2.) Validity 209 II. Performance and breach 210 (1.) What amounts to performance or breach 210 (2.) Waiver 211 (3.) Forfeiture and re-entry 211 III. Condition precedent 212 Condonation. [See Divorce, II, (1).] Confession. [As evidence, see Evidence, VI.] CONFLICT OF LAWS 212 I. General rules; what law governs 212 II. Proof of, and presumption as to foreign laws 213 TABLE OF CONTENTS. xix Conflict op Laws, continued. III. Particular cases 214 (1.) Tenure and transfer of property 214 (2.) Estate of decedent 215 (3.) Domestic relations 215 (4.) Contracts 215 (5.) Judicial proceedings 217 (6.) Corporations and joint-stock associations 218 CONFUSION AND ACCESSION OF CHATTELS 219 Consanguinity. [See Alien; Bastard, I; Descent and Distribution, I; II; Judge; Jury I, (1); If, (3)^ Consideration. [See Bill of Exchange, etc., I, (6); Contract, II; Deed, I, (2).] Consignment. [See Agency, V, (1); Attachment; Bill of Lading; Shipping, 111,(3).] CONSPIRACY 220 I. Criminal proceedings 220 II. Action for damages 221 CONSTABLE 222 CONSTITUTIONAL LAW 222 I. General rules 222 II. The constitution of the United States 223 (1.) Impairing the obligation of contracts 223 (2.) Ex post facto statutes 224 (3.) Inter-state commerce 224 (4.) The militia 224 (5.) Fugitives 225 (6.) Records, etc., of another state 225 (7.) Other matters 226 III. The constitution of Massachusetts 227 (1.) The governor and the governor's council 227 (2.) The legislature 227 (3.) Courts; judges; legislative exercise of judicial power 228 (4.) Statutes impairing vested rights 229 (5.) Statutes taking or otherwise affecting private property 230 (6.) Taxation and other burdens 232 (7.) Rules of evidence i 233 (8.) Trial by jury 234 (9.) Holding to answer for an offence , 235 (10.) Unreasonable searches and seizures 236 (11.) Othermatters 236 Consul. [See Arrest, I, (2); Bail, art. 18; Jurisdiction, art. 38; Scire Facias, art. 26.] CONTEMPT 237 Conterminous land owners. [See Land Owner.] Contingent remainder. [See Deed, III, (3); Devise, III, (6); Perpetuity; Trust, III, (3.)] CONTINUANCE; STAY OF PROCEEDINGS 238 CONTRABAND OF WAR 238 CONTRACT 239 I. General rules 239 (1.) Implied contract 239 (2.) Requisites of, and parties to, an express contract 240 (3.) Enforcement by a person not a party 242 II. Consideration 243 (1.) General requisites and sufficiency 243 (2.) Illegal consideration 247 (3 ) Failure of consideration , 248 III. Validity 249 (1.) Illegality 249 (2) Othermatters 251 IV. Interpretation 251 (1.) General principles 251 (2.) Liquidated damages and penalty 252 (3.) Entirety or divisibility 252 (4.) Dependent and independent stipulations , 253 (5.) Executory contract of sale, etc. ; when title passes 254 (6.) Peculiar expressions 255 (7.) Particular kinds of contracts '."!'.!..!.!'. 258 xx TABLE OF CONTENTS. Contract, continued. V. Performance 260 (1.) Substantial performance; waiver thereof; partial performance 260 (2.) Excuses for nonperformance 26i (3.) Time and place 262 (4.) Other cases of performance and breach 263 VI. Modification; extinguishment 263 (1.) Rescission or avoidance 263 (2.) Discharge; modification 265 (3.) Other matters 266 Contribution. [See Assumpsit, III, (3); Corporation, V; Devise and Bequest, IV; Equity Jurisdiction, II, (5); Heirs, etc., II; Joint Liability, II, (2); Joint Tenants, etc., I, (3); II;. Mortgage, IV, (4); Partnership, -I, (4); III; IV, (1); Surety, III, (3).] Controversy, submission of. [See Case stated.] Conversion. (Action for.) [See Trover.] Conversion. (Equitable.) [See Equitable Conversion.] Conveyance. [See Deed; Fraud, III; Grant; Mortgage; Seal] Convict. [See State Prison.] CONVICTION AND SENTENCE 267 I. General rules as to conviction 267 II. Conviction of part of an offence charged, or of a less offence 267 III. General rules as to sentence 568 I V. Second conviction and additional sentence 270 Co-operative saving fund and loan association. [See Benevolent Association; Loan and Fund Association.] Coparcenery. [See Joint Tenants, etc. ; Partition; Tenant for Life.] COPYRIGHT AND LITERARY PROPERTY 270 CORONER 270 CORPORATION 271 I. Incorporation and organization; proof thereof 271 (1.) Mode, sufficiency, and effect 271 (2.) Proof of; estoppel 273 (3.) Proof as affected by the pleadings 273 II. Creation of the capital stock 274 (1.) Subscription; action thereupon 274 (2.) Rights of subscribers 276 (3.) Sale for nonpayment of assessment 276 III. Stock; stockholders; members 276 (1.) General rules as to stock: lien of corporation thereupon 276 (2. ) Transfer of stock ; liability of coporation thereupon 277 (3.) Dividends; new stock; special stock 278 (4.) Miscellaneous rulings relating to stockholders and members i 279 IV. Directors and officers; election; powers; general liabilities and disqualifications. . . . 280 (1.) Directors 280 (2) President 281 (3.) Treasurer 281 (4.) Other officers, and miscellaneous rulings 282 V. Liability of officers and members for corporation debts 283 (1.) General rules 283 (2.) Liability under statutes 283 VI. Powers and liabilities of corporations 286 (1.) Powers; ultra vires , 286 (2.) How and by whom objection taken 288 (3.) General rules as to liability 288 (4.) Indictment ."...['...,... 290 VII, Foreign corporations 290 VIII. Actions and suits in equity by and against corporations 291 IX. Insolvency; forfeiture; dissolution 292 X. Miscellaneous rulings relating to particular corporations 293 Corpse, removing from grave. [See Burial, III.] COSTS. (At law) 294 I. When, to whom, and against whom generally awarded 294 (1.) General rules !!.!!'!.'!".!!... 294 TABLE OF CONTENTS. xxi Costs (at law), continued. (2.) Two or more actions, counts, or parties 296 (3.) How affected by damages recovered 297 (4.) Who is liable for costs; costs against an executor or administrator 298 II. Costs in particular proceedings 299 (1.) Exceptions; double costs 299 (2.) Review 299 (3.) Error; double costs; increased interest 300 (4.) Probate; insolvency 300 (5.) Real actions 300 (6.) Flowing lands, and other water causes 301 (7.) Partition 301 (8.) Trustee process 301 (9.) Damages for taking lands 302 (10.) Other proceedings 303 III. Security for costs 303 IV. Taxation; review thereof; taxable items 303 Costs. (In equity.) [See Equity Pleading and Practice, II, (10).] Counsellor. [See Attorney at Law.] Counterfeiting. [See Forgery and Counterfeiting.] COUNTY 306 COUNTY COMMISSIONERS 306 County road. [See Highway.] COURT MARTIAL 397 COURT OF COMMON PLEAS 308 COURT OF SESSIONS 308 COURTS. (In general) 308 COVENANT (AND ACTION OF CONTRACT HERETOFORE KNOWN AS COVE NANT) 309 I. General rules , 309 II. Covenants relating to real property 310 (1.) Interpretation and effect 310 (2 ) Running of covenant with land 311 (3.) Warranty; quiet enjoyment 312 (4.) Against incumbrances 313 (5.) Seisin; right to convey 315 (6.) To stand seized 316 III. Implied covenants 316 CRANBERRY MEADOW ^ 317 Creditor and debtor. [See Accord and Satisfaction; Application of Payments; Assign- ment; Attachment; Bankruptcy; Chattel Mortgage; Composition; Equity JuiTsdic- tion; Fraud, III; Insolvent; Mortgage; Payment; Pledge; Subrogation.] Creditor's bill. [See Equity Jurisdiction, II; III.] Crime against nature. [See Sodomy.] CRIMINAL CONVERSATION 318 Criminal law. [See the titles of the different crimes and offences, and of the subjects of criminal acts; also Abatement; Accessory and Accomplice; Agent; Agricultural Society; Appeal; Arrest; Attempt to commit Crime; Attorney-General; Bail; Bridge; Carrier; Certiorari; Constitutional Law; Conviction and Sentence; Corporation; Costs; Deodand; District-Attorney; Error, III; Escape; Evidence; Exception; Fish; Former Adjudication, I; Grand Jury; Gunpowder; Habeas Corpus; Hawker and Peddler; Highway; House of Correction; Idle, etc., Person; Indictment; Infant; Information; Judgment; Jurisdiction; Jury; Justice of the Peace; Lord's Day; Lunatic; Master and Servant; Mortgage; New Trial; Nolle Prosequi; Practice, II; Recognizance; Record; Report; Search Warrant; Street Railway; Trial; United States Forces; Variance; Witness.] Criminal pleading. [See Indictment.] Criminal procedure. [See Conviction and Sentence; Practice, II; Trial.] Crop. [As between landlord and tenant, see Landlord, etc., IV, (4). As between vendor and vendee, see that title. Upon partition, see Partition, III, (3). As between real and personal representatives, see Executor and Administrator, III, (1); Heirs, I.] Cross action; cross Mil. [See Damages, V; Equity Pleading and Practice, I, (2).] xxii TABLE OF CONTENTS. Cruelty. [ To animals, see Animal, IV; Indictment, VIII, (23). Between husband and wife, see Criminal Conversation; Divorce, II, (4).] Currency. [See Money.] CURTESY, TENANCY BY 318 Custom and usage. [See Usage.] CUSTOMS AND COLLECTOR OF CUSTOMS. ( United States.) 319 Cy-pres. [See Charity, III.] D. Dam. [See Cranberry Meadow; Deed, III, (4); Mill and Mill Dam; Water Course.] DAMAGES 319 I. General rules 320 II. Nominal damages; double damages 322 III. Rules applicable to particular contracts 323 (1.) Continuing contract; entire damages 323 (2.) Purchase and sale 323 (3.) Warranty; including deceit 324 (4.) Miscellaneous rulings 324 IV. Rules applicable to particular actions of tort 325 (1.) Vindictive or punitive damages; mental suffering 325 (2.) Two or more defendants 326 (3.) Injury to the person ., 326 (4.) Conversion or loss of, or injury to, personal property 327 (5.) Trespass upon, or injury to, real property 328 (6.) Officer 329 (7.) Carrier 330 (8.) Stock of a corporation 330 (9.) Miscellaneous rulings 330 V. Recoupment of damages 331 Dangerous substance. [Action for injury by, see Action, arts. 3 to 6. See, also, Illuminating Fluid.] DANGEROUS WEAPON 332 DEAF AND DUMB PERSON 332 Death. [Action for causing death under St. 1881, Ch. 199, §§1,2, and 3; P. S., Ch. 73, § 6; Ch. 112, §§ 212, 213; see Carrier, IV, (1). Under §§ 4 and 5 of the same statute; P. S., Ch, 52, § 171; see Highway, VI, (8). See, also, St. 1883, Ch. 243, rendering a railroad company liable for its employee's death through its negligence. Action for an injury resulting in death, before the statute of 1881, and in cases not within that statute, see Action, I; Abatement and Survivor, I, (1); Damages, II; Negli- gence. Questions of evidence arising in such an action, see Evidence, art. 304. Indictment for negligently causing death, see Carrier, IV, (2); Homicide. Presump- tion of death, see Evidence, IV, (5); also Adultery; Polygamy.] DEBT 332 Debtor and creditor. [See Accord and Satisfaction; Application of Payments; Assignment; Attachment; Bankruptcy; Chattel Mortgage; Composition; Equity Jurisdiction; Fraud; Insolvent; Mortgage; Payment; Pledge; SuDrogation.] Deceit. [See Cheat; Conspiracy; Damages, III, (3); Fraud; Sale, I, (3).] Declaration. [See Pleading, III.] Declarations, admissions, etc. [See Evidence, VI.] Decree. [See Equity Jurisdiction; Equity Pleading and Practice, II, (7); Former Adjudi- cation; Judgment; Probate Court.] Dedication 332 Deed 332 I. General rules 333 ( 1 .) Parties ' 333 (2.) Validity in general; form; execution; effect 334 (3.) Delivery 335 (4.) Conditional delivery; escrew 336 II. Recording _ 336 (1.) Acknowledgment and proof '.'.'.....'..'.!'.!!'..'.'.'....'.'.'.'.'.!..'.'. 336 (2.) Recording; failure to record; effect thereof 337 (3.) Notice of unrecorded deed 338 TABLE OF CONTENTS. xxiii Deed, continued, III. Interpretation 338 (1.) General principles of interpretation ,. . . 338 (2.) Reference to a plan or other instrument 339 (3.) The title or interest conveyed . .'. 340 (4.) Rulings relating to grants and reservations of water rights 341 (A.) Aqueduct 341 (B.) Water power 342 '(C) Dam 343 (D.) Flowage 343 (E.) Miscellaneous 344 (5.) Description of the property 344 (6.) Appurtenances and incidents 345 (7.) Exceptions, restrictions, and reservations 346 Defamation. [See Libel and Slander.] Default. [See Judgment, II, (1).] Defeasance. [See Mortgage, I, (2).] Defence. [See Pleading, IV; Trial.] Defrauding. [See Cheat; Conspiracy; False Pretences; Fraud.] Delivery. [See Contract, I, (2); Deed, I, (3); Gift: Sale, II, (3); Savings Bank, II; Statute of Frauds, III, (2).] Demand. [See Notice and Demand.] Demurrage. [See Shipping, III.] Demurrer. (Pleading.) [See Equity Pleading, etc., I, (3); Indictment, VI, (1); Pleading, VI.] DEMURRER TO EVIDENCE 347 DEODAND 347 Dependent and independent stipulations. [See Contract, IV, (4) ] Deposit. [See Bailment; Savings Bank, II.] DEPOSITION 347 I. General rules; depositions taken here 347 (1.) When admissible; notice; interrogatories .'..'.'. 347 (2.) Taking; certifying; returning 349 II. Depositions taken elsewhere by an officer 350 III. Depositions taken upon a commission 350 IV. Depositions in perpetual remembrance 352 Derelict. [See Lost Property; Salvage.] DESCENT AND DISTRIBUTION 352 I. General rules 353 II. Half blood and illegitimates 353 III Child omitted in a will 354 Desertion. [See Divorce, II, (3); Husband and Wife, II, (4); Parent and Child I (2)- Poor, I, (2); United States Forces, I.] Detainer, forcible. [See Forcible Entry and Detainer.] Deviation. [See Insurance, V, (9).] DEVISE AND BEQUEST 354 I. Sufficiency in general 355 (1.) What may be devised or bequeathed; after acquired property.' ............... 355 (2.) Who may take 355 (3.) What words pass realty and personalty , ............'...'.'..'. 356 II. Interpretation and effect in general 357 (1.) Description of the property ......... .\ ...['.'.'.['.'. .........[... .\. .. 357 (2.) When specific, general, or demonstrative; incumbranaes;' failure of gift! ..... 358 (3.) Designation of the devisee or legatee 359 (4.) Residue, and residuary clauses 360 (5.) Per stirpes or per capita ,' 351 (6.) Void bequests, devises, and provisions : 361 (7.) Devise or bequest as payment or forgiveness of a debt " . " 362 III. Interpretation and effect, as to the estate or interest given 362 (1.) Life estate; legacy for life; income """ 362 (2.) Annuity 36g xxiv TABLE OF CONTENTS. Devise and Bequest, continued. (3.) Estate tail 365 (4.) Estate in fee simple; absolute legacy 366 (5.) Shares; tenancy, joint, in common, or several 367 (6.) Vested and contingent remainders, and like equitable interests, and interests in personalty 369 (7.) Executory devise 370 (8.) Conditions; charges; gifts for support 371 IV. Abatement and contribution 373 V. Revocation; ademption; renunciation; lapse 374 VI. Satisfaction; interest; remedies 375 Devisees and legatees. [Liabilities for debts, see Devise and Bequest, IV; Heirs, etc., II.] Digging. [See Land Owner.] Dighton Bridge. [See Bridge, art. 14.] Discharge. [See Bankruptcy, II, (6); Insolvent, VIII; Poor Debtor, III, (4); Release.] DISCONTINUANCE; DISMISSAL; NONSUIT 377 Discovery. [See Equity Jurisdiction, II, (14); Equity Pleading and Practice, I, (1); II, (3); Interrogatories.] DISORDERLY HOUSE 378 Disorderly person. [See Idle, etc., Person.] Dispossession, statutory proceedings for. [See Forcible Entry, etc., I; Landlord and Tenant, VII, (4); Mortgage, V, (6).] Disseisin. [See Adverse Possession; Forcible Entry and Detainer; Prescription; Seisin.] Distress. [See Taxation, VII, (2).] Distribution. [See Descent and Distribution; Executor, etc., VII, (2).] DISTRICT-ATTORNEY 378 District court. [See Courts; Police Court.] DISTRICT COURT OF THE UNITED STATES 379 DISTURBANCE OF MEETING 379 Ditch. [See Easement; Meadow; "Water Course, III.] Dividend. [See Bankruptcy, II, (3); Corporation, III, (3); Income; Insolvent, VI, (4).] DIVORCE 379 I. Jurisdiction 379 II. Causes for divorce 380 (1.) General rules; recrimination; condonation; insanity 380 (2.) Adultery 381 (3.) Desertion 381 (4.) Cruelty; cruel and abusive treatment, etc ,. 382 (5.) Intoxication; impotency 382 III. Proceedings and practice generally , 382 IV. Alimony, and other allowances to the wife 383 V. Decree, and effect theieof 384 (1 .) General rules 384 (2.) Vacating the decree • 385 (3.) Decree nisi 385 (4.) Remarriage 385 Dock. TSee Wharf.] Dog. [See Animal, II; III.] Domestic animals and fowls. [See Animal, etc., I; II.] DOMICIL 386 Donatio mortis causa. [See Gift, II.] Doves. [See Animal, etc., arts. 2, 3.] DOWER 387 I. Dower right 387 (1.) General rules 387 (2.) Improvements 888 (3.) Mortgaged land 389 (4.) Dowress's right in the laud 389 TABLE OF CONTENTS. xxv Dower, continued. II. How barred 390 III. Remedies 390 Drain and drainage. [See Cranberry Meadow; Easement; Land Owner; Meadow and low Land; Town, VI, (3); Water Course, III.] DRUNKENNESS 392 Duelling. [See Comm. „. McNeill, (19 P.) 36 127.] DURESS 392 Duties. {United States.) [See Customs and Collector of Customs; Internal Revenue.] DWELLING HOUSE 394 Dying declarations. [See Evidence, I, (6).] E. EASEMENT; SERVITUDE 394 I. General rules 394 II. How created; interpretation; effect ; 395 (1.) By implication 395 (2.) By prescription 396 (3.) By express grant or devise 398 (4.) By reservation or restriction 400, III. How lost 401 (1.) By abandonment 401 (2.) By operation of law 402 (3.) By release or other agreement 402 IV. Rights and liabilities 403 V. Remedies 404 Eastern Railroad. [See Appeal, art. 85; Corporation, X; Mortgage, art. 151.] Eaves. [See Adverse Possession, art. 31; Boundary Line, arts. 73, 74; Deed, art. 253; Easement, art. 69; Landlord, etc., arts. 172, 252; Trespass, art. 64.] Ecclesiastical law. [See Bishop; Parish; Religious Association.] Ejectment. [See Landlord and Tenant, VII, (3); Real Action, V.] Election. [Of remedies, see Waiver. Of a widow to take a provision under a will, in lieu of dower or a distributive share, see Widow, III. For a case, where a mort- gagee was bound by his election to take a new mortgage, instead of reforming the old, see Equity Jurisdiction, art. 150. For rules relating to an estoppel by an elec- tion, to take a benefit under a will, etc., see Estoppel, III, (2).] ELECTIONS AND ELECTORS 405 I. Elections 405 (1.) Holding an election; return of votes 405 (2.) Illegal voting 406 II. Electors 406 (1.) Qualifications 406 (2.) Remedies for refusing a vote 407 EMBEZZLEMENT 407 Embracery- [See New Trial, III.] Emblements. [See Landlord and Tenant, IV, (4).] EMINENT DOMAIN 409 Engineer. [Decision of, when made conclusive by building contract, etc. ; Arbitration art. 22; Contract, art. 347.] Engine-men; engine company. [See Fire.] Enlistment. [See Militia, III, (2); United States Forces, I.] Entail. [See Deed, III, (3); Devise and Bequest, III, (3); Estate tail.] Enticing. [Woman for prostitution, see Bawdy-House. Servant, see Conspiracy, art. 39; Master and Servant, IV.] Entry. [See Adverse Possession, n; Condition, 11,(3); Forcible Entry and Detainer; Mortgage, V, (3); Real Action.] equitable conversion 410 Vol. I-d xxvi TABLE OF CONTENTS. EQUITY JURISDICTION 410 I. General rules 410 ' (1.) Equity jurisdiction generally 410 (2.) As affected by a remedy at law 411 (3.) Damages 413 II. Particular heads 413 (1.) Redemption; foreclosure 413 (2.) Trusts; bill for instructions 413 (3.) Specific performance. [See that title.] (4.) Redelivery of chattels detained, etc 414 (5.) Contribution 415 (6.) Multiplicity of parties, with distinct rights, etc 415 (7.) Copartners; joint tenants; tenants in common 416 (8.) Joint trustees; co-executors; co-administrators 416 (9.) Waste and nuisance. [See those titles.] (10.) Account; including agency 416 (11.) Equitable attachment; creditor's bill 417 (12.) Fraud; fraudulent conveyance; conveyance in the nature of a mortgage 418 (13.) Accident and mistake; reformation of instrument - 418 (14.) Discovery '. 419 (15.) Property fraudulently conveyed by debtor 420 (16.) Injunction. [See that title.] (17.) Interpleader. [See that title.] (18.) Quieting title. [See that title.] (19.) Partnership. [See that title.] (20.) Corporations. [See Bank; Bridge; Corporation; Insnrance Company; Railroad; Turnpike.] EQUITY PLEADING AND PRACTICE 420 I. Pleading 420 (1.) Bill or petition 420 (2.) Cross bill; supplemental bill; bill of revivor 422 (3.) Demurrer 423 (4.) Plea; answer; replication 424 (5.) Amending pleadings 425 II. Practice 426 (1.) Parties 426 (2.) Trial of issues by a jury 427 (3,) Reference; report; exceptions thereto 428 (4.) Evidence; answer as evidence , 429 (5.) Miscellaneous interlocutory proceedings 430 (6.) Hearing; rehearing 430 (7.) Decree 431 (8.) Appeal. [See Appeal, I, (3).] (9.) Review 43a (10.) Costs 432 ERROR, WRIT OF 433 I. General rules 433 II. In a civil cause 434 (1.) Parties 434 (2.) Upon what judgments 434 (3.) For what causes 435 (4.) Proceedings; judgment 436 III. In a criminal cause 437 ESCAPE 438 I. In a civil cause 438 II. In a criminal cause 439 ESCHEAT 439 Escrow. [See Deed, I, (4).] Estate [See Adverse Possession, III, (1); Deed, III, (3); Devise and Bequest, III; Heirs, etc., I; Mortgage, I, (4); Real Property; Trust, I, (1).] Estate for life. [See Tenant for Life.] ESTATE TAIL 440 ESTOPPEL !...!!!................ 440 I. General rules 440 II. Technical estoppel 441 (1.) By adjudication ill!!!!!!!!!! '.'.'.".'.', '.'.'.'.'.'.','. '.'.',"".".'. 441 (2.) By specialty, or other written instrument '..,,'.. ....'.'.'.' 1'.'.'.'.'.'.'.'..'... 444 TABLE OF CONTENTS. xxvii Estoppel, continued. III. Estoppel in pais; equitable estoppel, and other estoppels by election 448 (1.) Ordinary estoppel in pais -. 446 (2.) Equitable estoppel, and other estoppels by election 448 ESTRAY 450 Eviction. [See Covenant, II, (3); Landlord and Tenant, V, (5).] EVIDENCE 450 I. General rules as to competency 451 (1.) Hearsay 451 (2.) Certainty; relevancy 452 (3.) Other like acts; similar circumstances as to other things or persons 454 (4.) Opinions; experts 456 (5.) Res inter alios acta 460 (6.) Declarations, entries, and former testimony, of a deceased person 461 (7.) Ocular evidence 462 (8.) Scientific and other printed books 463 (9.) As affected by public policy 463 (10.) Rebuttal of adverse testimony; fortifying party's testimony 464 II. Judicial notice 465 III. Burden of proof; prima facie evidence 465 (1.) General principles as to both 465 (2.) Burden of proof upon particular questions 467 (3.) Prima facie evidence upon particular questions 469 IV. Presumptions 470 (1.) Real or personal property 470 (2.) Negotiable paper 471 (3.) Records, and other written instruments 471 (4.) Contract, express or implied 471 (5.) Death; survivorship 472 (6.) Continuance of fact 472 (7.) Intent 472 (8.) Lawfulness; honesty 472 (9.) Receipt of letters, etc., sent 473 (10.) Miscellaneous questions , 473 V. Best and secondary evidence 474 (1.) General principles 474 (2.) Attesting witness 475 (3.) Miscellaneous rulings as to sufficiency of primary evidence 476 (4.) Secondary evidence 477 (5.) Notice to produce, and effect thereof 478 VI. Admissions; declarations; confessions ; , 479 (1.) General principles 479 (2.) Admissions from acts, omissions, silence, or failure to produce evidence 482 (3.) Former owner of property 484 (4.) Persons jointly interested; coplaintiff or codefendant 486 (5.) Attorney; counsel; agent. 487 (6.) Confession in a criminal cause 489 VII. Oral testimony to affect a writing 491 (1.) General principles . 491 (2.) Instruments and issues within or without the rule 492 (3.) Patent and latent ambiguities; surrounding circumstances; parties' acts 495 (4.) Date; consideration; invalidity; subsequent modification ; collateral matter 496 VIII. Documentary evidence 498 (1.) Ancient deeds and other documents 498 (2.) Records and other proceedings of courts and magistrates 499 ^ (3.) Other public records 500 (4.. Book accounts and entries; memoranda 501 (5.) Miscellaneous rulings 503 IX. Evidence as to particular subjects 504 (1.) Character; reputation 504 (2.) Handwriting 504 (3.) Identity . . . '. 506 (4.) Intent; motive 507 (5.) Time 508 (6.) Value 509 Examiners, board of. [See County Commissioners.] Excavation. [See Land Owner.] EXCEPTION ... 513 XXV1U TABLE OF CONTENTS. Exception, continued. ■ I. "Where and how maintainable 5l» (1.) What courts and proceedings >"» (2.) Where it lies ^* (3.) When and how taken ° ™ (4.) When and how filed, allowed, and entered jjio (5.) Petition to establish its truth 5Y! IL Where it does not lie jjl|» (1.) Matterof discretion jj"> (A.) General rule °\° (B.) Amendments; continuances jj"> (C.) General conduct of the trial 518 (D.) Order of proof.. °J» (S.) Election of counts «£}' (jP.) Sufficiency of evidence * ™u (0.) Other matters relating to evidence 520 {S.) Instructions to the jury. . 520 (/.) Application for a new trial or a review 52* (J.) Auditor's report • 522 (K.) Other matters of discretion 523 (L.) Rule where the discretion has not been exercised 523 (2.) Immaterial rulings and incompetent evidence 523 (3.) Matter of fact; including rulings on preliminary questions 524 (4.) Insufficient or improper objection or request 525 (5.) Consent; waiver 527 (6.) Other matters 527 III. Bill of exceptions 528 IV. Practice; proceedings; judgment 531 Exchange. [See Bill of Exchange, etc., V, (6); Damages, arts. 110, 111; Money.] Excise. [See Constitutional Law, arts. 193, 194; Intoxicating Liquors; Taxation, IX, (1).] Excusable homicide. [See Homicide, I.] EXECUTION 532 I. General rules 532 (1.) Requisites; issuing; effect '. 532 (2.) Discharge J 533 II. Levy on personal property 534 (1.) What may be taken; statutory exemptions 534 (2.) Seizure and sale 535 III. Levy on real property by set off 536 (1.) Real property subject to levy 536 (2.) Mode; sufficiency; effect , 537 (3.) Appraisement; seisin 539 (4.) The officer's return 541 (5.) Recording the execution and return 542 IV. Levy on real property by sale 543 (1.) In what cases; effect '. 543 (2.) Notice of sale; sale; proceeds, officer's deed 544 (3. J The officer's return 545 V. Redemption after set off or sale 545 VI. Service by arrest 546 VII. Writ of possession 547 EXECUTOR AND ADMINISTRATOR 547 I. General rules; different kinds of executors and administrators 548 (1.) Domestic executor or administrator; executor and trustee; executor of executor. 548 (2.) Administrator with the will annexed; administrator de bonis non 549 (3.) Executor of his own wrong 549 (4.) Foreign executor or administrator; ancillary administration 550 II. Appointment; bond; removal 551 (1.) Jurisdiction; effect; notice of appointment 551 (2.) Persons entitled to administration 552 (3.) Bond; effect, and breach thereof 553 (4.) Action on the bond 555 (5.) Removal 557 III. Inventory; assets, and summary proceedings to discover them 557 (1.) Inventory; what are assets 557 (2.) Allowances to a widow 559 (3.) Summary proceedings to discover assets 560 TABLE OF CONTENTS. xxix Executor and Administrator, continued. IV. Real property . 560 (1.) General principles 560 (2.) Devise of power of sale ««jl (3.) Sale by license to pay debts, legacies, or expenses 561 V. Rights, liabilities, and remedies in administering the estate 564 (1.) Rights and powers 564 (2.) Duties and liabilities 566 (3.) Actions by and against 567 VI. Insolvent estate 568 VII. Disposition of the estate 571 (1.) Payment of debts and legacies 571 (2.) Distribution 572 VIII. Accounting; compensation 572 (1.) Mode of accounting; effect of decree; re-opening 572 (2.) Items chargeable against, and allowable to, the accounting party 573 IX. Public administrator 575 Executory devise. [See Devise and Bequest, III, (7).] Exemption. [See Arrest, I, (2); Attachment, I, (2); I, (4); Execution, II, (1); Homestead; Jury, I, (1); Militia, II, (1); Taxation, II, (4); Trustee Process, III, (2), (C).] Expert. [See Evidence, I, (4); IX, (2).] Exposure of the person. [See Indictment, VIII, (49); Lewdness.] Expressman and express company. [See Carrier; Joint Stock Company.] EXTORTION 575 I. By taking illegal fees 575 II. By a threat to accuse of a crime 576 Extradition. [See Constitutional Law, II, (5).] F. Factor. [See Agency, V, (1).] FALL RIVER 577 False imprisonment. [See Arrest, III.] FALSE PERSONATION OF OFFICER 577 FALSE PRETENCES 577 False representations. [See False Pretences; Fraud, II.] False return. [See Office and Officer, I, (4); II.] False weights and measures. [See Inspection; Weights and Measures.] FANEUIL HALL MARKET.... 580 Fast day. [See Bill of Exchange, etc., IDI, (2); Poor Debtor, III, (1); Time.] Federal courts. [See District Court of the United States; Jurisdiction, II; Removal of Cause, II; Supreme Court of the United States.] Federal customs and duties. [See Customs; Internal Revenue.] Federal military and naval forces. [See United States Forces.] Federal officers. See Customs; Internal Revenue; Post Office,] Fee tail. [See Estate tail,] Fees. [See Attorney, etc., Ill; Constable; Costs, IV; Executor, etc., VIII, (2); Extor- tion, I; Intoxicating Liquors, VII; Office and Officer, I, (3); Sheriff; Taxation, VI, (8); VIII; Witness, I, (2.) FELONY 580 Female child, abuse of. [See Rape.] FENCE; FENCE YIEWERS 580 FERRY 582 Field driver. [See Impounnding ] Filing. [See Clerk; Indictment, I; Pleading, VII; Practice, II, (4).J Finding and finder. [See Lost Property.] xxx TABLE OF CONTENTS. Fine. [See Conviction and Sentence; Penal Action.] FIRE; FIRE DISTRICT; FIRE DEPARTMENT; FIRE ENGINE COMPANY.. 583 FIRE CRACKERS 584 Fire insurauce. [See Insurance, III.] FISH; FISHING; FISHERY 584 I. General rules 584 II. Interpretation and effect of statutes; proceedings thereunder 585 III. Shell fish 587 Fitcliburg Railroad. [See Corporation, X; Railroad.] FIXTURE 587 I. General rules; rules between vendor and vendee, and between beir and executor 587 II. Between landlord and tenant 589 III. Between mortgagor and mortgagee 590 FLATS 591 Flowage. [See Covenant, II, (4)- Cranberry Meadow Deed, III, (4), (D); Mill and Mill Dam; Water Course.] Food. [See Provisions.] Foot way. [See Highway, I, (1); VI, and art. 75; Railroad, III, (3).] FORCIBLE ENTRY AND DETAINER 593 I. Civil proceedings 593 II. Indictment 594 Foreclosure. [See Chattel Mortgage, IV; Mortgage, V; Pledge, II.] Foreign attachment. [See Trustee Process.] Foreign consul ; foreign minister. [See Arrest, I, (2); Bail, art. 18; Jurisdiction, art. 38; Scire Facias, art. 26.] Foreign corporation. [See Corporation, VII.] Foreign law. [See Conflict of Laws, II; Evidence, II; Executor and Administrator, I, (4); Jurisdiction.] Forfeiture. [See Condition, II, (3); Corporation, IX; Equity Jurisdiction, I; Injunc- tion, arts. 55, 56; Tenant for Life; Waste.] FORGERY AND COUNTERFEITING 595 I. Instruments , 595 II. Counterfeiting coin 597 FORMER ADJUDICATION 598 I. In a criminal cause 598 II. In a civil cause 600 (1.) General rules 600 (2.) Whether the former judgment was on the merits 601 (3.) Validity of the former judgment 602 (4.) Identity of the causes of action 603 (5.) Questions as to parties , 603 Fornication. [See Adultery; Cohabitation; Lewdness; Rape, art. 8.] Forwarder. [See Agency, V, (1); Carrier.] FRANCHISE 604 FRAUD; FRAUDULENT CONVEYANCE 604 I. General rules 605 II. Fraudulent representations 606 III. Conveyance or transfer to defraud 609 x (1.) Transfer of personal property 609 (2.) Conveyance of real property 610 (3.) Transfer or conveyance as collateral security, or to pay debts 611 (4.) Voluntary transfer or conveyance 613 IV. Evidence in cases of fraud 614 (1.) In general 614 (2.) Fraudulent conveyance or transfer 616 V. Remedies , , 617 (1.) At law i .".'...I'.!'..'... 617 (2J Inequity 618 TABLE OF CONTENTS. xxa Frauds, statute of. [See Statute of Frauds.] Fraudulent conveyance. [See Fraud, III; IV; V.] Fraudulent representations. [See False Pretences; Fraud, II; V.] Freight. [See Carrier, I, (8); Insurance, V; Lien, I; Shipping, III, (2).] Friend. [See Quaker.] Fugitive. [From justice or from slavery, see Constitutional Law, II, (5).] G. Game, unlawful. [See Amusement, II.] Game cock. [See Amusement. II, (2); Betting and Gaming.] Gaming. [See Betting and Gaming.] Garnishment. [See Trustee Process.] Gas, injury from. [See Negligence, III, (3).] General average. [See Insurance, art. 207, and V, (12); Shipping, III, (4).] GENERAL COURT 620 GIFT 620 I. General rules 620 II. Donatio mortis causa 621 Goods bargained and sold; goods sold and delivered. [See Assumpsit, III, (5); Dam ages, III, (2). Fraud, III, (1); Sale; Statute of Frauds, III.] GOOD WILL 622 Governor. [See Constitutional Law, II, (5); III, (1); III, (11); Conviction and Sentence; Trial, IV, (1).] GRAND JURY 623 GRANT 624 GRANVILLE 624 Grave, violating. [See Burial, III.] Great pond. [See Fish, etc. ; Pond.] GUARANTY; INDEMNITY 625 I. General rules; construction of particular guaranties 625 II. Charging and discharging the guarantor 627 GUARDIAN AD LITEM 629 GUARDIAN AND WARD 629 I. Appointment; vacating letters; removal 629 II. General rules affecting the relation 630 (1. ) General powers and liabilities of the guardian 630 (2.) General rights, liabilities, and disabilities of the ward 631 III. Management and disposition of the estate 632 (1.) Personal property 632 (2.) Heal property 632 IV. Accounting; compensation 633 (1.) Mode of accounting; effect of decree; re-opening 633 (2.) Items chargeable against and allowable to the guardian 634 V. Guardian's bond; breach thereof 635 GUNPOWDER '....' 636 H. HABEAS CORPUS; PERSONAL REPLEVIN 636 Habitual drunkenness. [See Drunkenness.] Hackney carriage. [See Lien, I; Town and City, II, (5)).] HADLEY FALLS COMPANY 637 Hamilton and Ipswich boundary. [See Ex pai-te, Ipswich, (13 P.) 30 481.] xxxii TABLE OF CONTENTS. Hancock free bridge. [See Corporation, X.] Handwriting. [See Evidence, IX, (2); Initials.] Harbor commissioners. [See Flats.] Harvard college. [See College.] HAWKER AND PEDDLER 637 Hay. [See Inspection.] Health. [See Board of Health; Nuisance.] HEIRS; DEVISEES; LEGATEES; NEXT OF KIN 638 I. Heirs and devisees; their rights and general liabilities 638 II. Liability of heirs, devisees, legatees, and next of kin, for the decedent's debts and contracts 63!> High school. [See School, I, (1).] HIGHWAY 640 I. General rules 641 (1.) What is a highway 641 (2.) Limits and boundaries 643 (3.) Rights of the public and the land owner in the soil 642 (4.) Law of the road 643 II. Highway by dedication or prescription '. . . . 644 III. Statutory proceedings to lay out, alter, or discontinue a way 645 (1.) Jurisdiction; correction of errors .. 645 (2.) Petition; notice; adjudication 646 (3.) Laying out the way 648 (4.) Altering or relocating 650 (5.) Acceptance 651 (6.) Discontinuing 652 (7.) Revision of the proceedings by a jury 653 IV. Damages; expenses; benefits; betterments. 653 (1.) Award and assessment upon laying out, altering, or discontinuing 653 (2.) Application for a jury to revise the assessment; warrant thereupon 655 (3.) Summoning the jury; trial; verdict, and return thereof 657 (4.) Computation of damages 658 (5.) Offset for benefits 660 (6.) Assessment for betterments 661 V. Construction; repairs; obstructions 662 (1.) Construction generally 662 (2.) Sidewalks 663 (3.) Repairs .,.........".".',""" 664 (4.) Obstructions 665 VI. Action against a city or town for an injury from defect 666 (1.) The place where the injury occurred 666 ■ (2.) Nature and cause of the defect '...'.'.'.'.".'.',',','. 669 (3.) Defendant's fault , !..!!.',!!.".!!.'*.! 670 (4.) Plaintiff's conduct ,..'. ] ....'/. ", '.'.'.'.".'.'.'..[", ". 671 (5.) Proximate, remote, or contributing cause '.".!!".!.'.'!".".!! °. ! ". 673 (6.) Notice of the injury, required by statute .'.!!"."!!! 675 (7.) Pleadings and proceedings in the action; evidence; damages ... 676 (8.) Action where death has occurred 678 VII. Powers, duties, and liabilities of a surveyor of highways 678 Hiring. [See Bailment, II.] Holiday. [See Bill of Exchange and Promissory Note, III, (2); Lord's Day.] HOLTOKE 679 HOMESTEAD 676 I. General rules g7g II. Acquisition; loss, or other termination 680 III. Rights of creditors ggl HOMICIDE . 6S2 I. General rules ggg , H. Murder and manslaughter ggg (1.) Definitions, and illustrations '.'.'.'.'. '. '. '.'.'. ', ','.'.,'. * ' .,'". '. '. \ 682 (2.) Statutory degrees of murder ........ ^ (3.) Trial; verdict roa (4.) Evidence .'.-I"."..*.!!'.'.!!".""!".".'.!". '.'.'.'.'.'.'. 684 TABLE OF CONTENTS. xxxiii Hoinine replegiaudo, writ of. [See Habeas Corpus.] Hoosac tunnel. [See Corporation, X.] Hopkins fund. [See Hadley v. Hopkins Academy, (14 P.) 31 240.] HOPKINTON LANDS 686 HOUSE 686 Horse race. [See Betting and Gaming.] Horse railroad. [See Street Railroad.] Hotel. [See Inn and Innkeeper.] House. [See Arson; Boundary Line; Burglary; Covenant; Easement. As to -where a house is personal property, see Fixture; Personal Property.] House breaking. [See Burglary.] HOUSE OF CORRECTION 686 House of ill fame. [See Bawdy-House; Indictment, VIII, (10).] House of representatives. [See Constitutional Law, III, (2); General Court.] HUSBAND AND WIFE 687 I. Marriage 687 (1.) Sufficiency; evidence 688 (2.) Void and voidable marriages 688 II. Husband's rights and liabilities 689 (1.) His personal rights 689 (2.) His common law rights in the wife's property, or their joint property 689 (3.) His rights under, or as affected by, the statutes 691 (4.) His liabilities 691 III. "Wife's rights, disabilities, and liabilities 693 (1.) At common law and in equity 693 (2.) Doing "business " under the statute 694 (3.) Other statutory property rights and liabilities 696 IV. Conveyances, contracts, and other transactions, between husband and wife 697 (1.) Conveyances and other transfers 697 (2.) Contracts generally 698 (3.) Contracts for, or in consideration of, separation 699 (4.) Actions and other proceedings between them; other matters 699 V Antenuptial agreements; marriage settlements 700 VI. Civil proceedings by or against husband or wife 701 VII. Criminal proceedings against husband and wife 702 I. ICE 703 Identity ; identification. [See Evidence, IX, (3).] Idiot. [See Lunatic] IDLE AND DISORDERLY PERSON 704 Illegal voting. [See Elections and Electors, I, (2).] Illegitimate child or relative. [See Bastard ; Descent and Distribution, II.] Ill fame, house of. [See Bawdy-House.] ILLUMINATING FLUID 705 Iinpoteney. [See Divorce, II, (5).] IMPOUNDING; FIELD DRIVER 705 Imprisonment. [See Arrest; Conviction and Sentence; Habeas Corpus; House of Cor- rection; Jail.] Imprisonment, false. [Action for. See Arrest, HI.] Improvements. [See Dower, I, (2); Execution, V; Highway, IV, (6); Income, III; Town and City, VI; Partition, III, (2); Real Action, IV, (2); Mortgage, IV, (3).] INCEST 707 INCOMEAND CAPITAL 707 I. Who takes income, and from what time 707 II. What is income and what capital 708 III. Sums chargeable to income and capital respectively 708 Vol. I— e xxxiv TABLE OF CONTENTS. Incumbrances, covenant against. [See Covenant, II, (4).] Indecent exposure. [See Indictment, art. 200, and VIII, (49); Lewdness.] Indemnity. [See Bond, III, (1); Collateral Security; Contract, IV, (7); Guaranty; Joint Liability, II, (2); Mortgage, II, (2); Office and Officer, I, (3).] INDENTURE 709 Independent and dependent stipulations. [See Contract, IV, (4).] INDIAN 709 INDICTMENT ; SUBSEQUENT PLEADINGS ; COMPLAINT 710 I. In what cases an indictment lies; how found ." 711 II. Formal requisites - 712 (1.) Caption; venue; commencement 712 (2.) Mutilation; erasures; interlineations 713 (3.) Conclusion 713 (4.) Signatures 713 III Statement of the crime 713 (1.) Timeand place 713 (2.) Person injured; property owner; other person mentioned 715 (3.) Property taken, injured, destroyed, or unlawfully used; value thereof 716 (4.) The criminal act 718 (5.) Knowledge; intent 720 (6.) Technical characterization of the crime 720 IV. Other rules of pleading ' 721 (1.) Joinder of offences; two or more counts; duplicity 721 (2.) Joinder of defendants 723 (3.) Describing written instruments 723 (4.) Indictment upon a statute . 724 (5.) Surplusage; repugnancy 725 (6.) Misnomer 726 (7.) Amendment 726 V. Modes of objecting to defects , 727 (1.) Arrest of judgment 727 (2.) Motion to quash; formal defects 727 (3.) Objections taken at the trial. [See Exception; New Trial; Trial.] VI. Pleadings subsequent to the indictment 728 (1.) Demurrer 728 (2.) Plea ,. 728 (3.) Subsequent pleadings 729 VII. Complaint 729 VIII. Indictments and complaints in particular cases 731 (1.) Abortion 731 (2.) Abuse of female child. [See post, VIII, (72.] (3.) Accessory 731 (4.) Adultery 732 (5.) Amusement 732 (6.) Animal. [See post, VIII, (23); VIII, (26).] (7.) Arson, and other criminal burning 732 (8.) Assault and battery 733 (9.) Barratry 733 (10.) Bawdy-house; house of ill fame; disorderly house 734 (11.) Betting and gaming. [See post, VIII, (37).] (12.) Billiards. (See ante, VIII, (5).] (13.) Blasphemy. [See Blasphemy.] (14.) Breaking and entering a building. [See ante, VIII, (7); and post, VIII, (17).] (15.) Bribery 734 (16.) Bridge; draw bridge 734 (17.) Burglary; other criminal breaking and entering; burglarious tools 734 (18.) Burning, criminal. [See ante, VIII, (7).] (19.) Carrier. [See Carrier, IV, (2).] (20.) Conspiracy 735 (21.) Corporation. [See Carrier, IV, (2); and post, VIII, (55); VIII, (60). 1 (22.) Counterfeiting." [Bee post VIII, (35).] (23.) Cruelty to animals 736 (24.) Dangerous weapon 736 (25.) Disturbance of meeting 736 (26.) Dog, unl.censed 736 (27.) Drunkenness [ .' 737 (28.) Elections and electors. [See Elections, etc., I, (2).] (29.) Embezzlement 737 (30.) Escape '.'.'.'.'.'.'.'.'..'...'.'.'.'.'.'.'.'.'.'.'. 737 (31.) Extortion !!!!!!!!!!!!!'.!!!!! 737 TABLE OF CONTENTS. xxxv Indictment, etc., continued. (32.) False personation J738 (33.) False pretences ■ • • ' ds (34.) Forcible entry and detainer. [See Forcible Entry, etc., II.] (35.) Forgery; counterfeiting "°° (36.) Game, unlawful. [See ante, VIII, (5).] (37.) Gaming 74 ° (38.) Highway. [See Highway, V, (3); V, (4).] (39.) Homicide 74U (40.) Horse railroad, obstructing. [See post. VIII, (63).] (41.) House of ill fame; house of prostitution. [See ante, VIII, (10).] (42.) Illegal voting. [See Elections, etc., I, (2).] (43.) Indecent exposure. [See Lewdness; and post, Vni, (49).] (44.) Innkeeper. [See Inn; also rost, VIII, (47); VIII, (61).] (45.) Insurance company; defrauding. [See ante, VIII, (7); VIII, (20).] (46.) Intimidation 741 (47.) Intoxicating liquors 741 {A.) Indictment 741 (B.) Complaint 742 (48.) Larceny 743 (49.) Lewdness 744 (50.) Libel 744 (51.) Lord's day 744 (52.) Lottery 744 (53.) Malicious mischief 745 (54.) Manslaughter. [See ante, VIII, (39).] (55.) Master and servant 745 (56.) Militia law 745 (57.) Milk 746 (58.) Mortgage 746 (59.) Murder. [See ante, VIII, (39).] (60.) Negligence 746 {61.) Nuisance 747 (A.) In general 747 (B.) Under the nuisance acts, St. 1855, Ch. 405; G. S., Ch. 87, §§ 6 to 9; St. 1866, Ch. 280, § 3; P. S., Ch. 101, §§ 6 to 9 .' 747 <62.) Obscene publication 748 (63.) Obstruction of horse and steam railroads 748 (64.) Obstruction of justice. [See post, VIII, (84.)] (65.) Officer, assault upon. [See ante, VIII, (8).] ■(66.) Perjury, and subornation of perjury 748 (67.) Poisoning 749 (68.) Polygamy 749 (69.) Provisions, unwholesome 749 (70. ) Prize fighting 750 (71.) Railroad. [See ante, VIII, (60); VIII, (63); Carrier, IV, (2); and Obstruction, etc.] (72.) Rape; abuse of female child; attempt at 750 (73.) Receiving stolen goods 750 (74.) Rescue 750 (75.) Riot 751 (76.) Robbery 751 (77.) Street railroad. [See ante, VIII, (63); and Obstruction, etc.] (78.) Theatrical exhibition. [See ante, VIII, (5)J (79.) Threat to accuse of crime. [See ante, VIII, (31).] (80.) Unlawful game [See ante, VIII, (5).] (81.) Vagrant. [See ante, VIII, (49); Idle, etc., Person.] (82.) Violating grave. [See Burial, III. (83.) "Way. [See Highway, V, (3); V, (4).] (84.) Witness 752 Indorsement. [See Bill of Exchange and Promissory Note, II; Writ, II, (2).] INFANT 752 I. Contract by or with, and transfer to or from, an infant 752 (1.) Generalrules 752 (2.) What contracts and transfers bind an infant 752 (3.) Voidable contracts and transfers 753 (4.) Affirmance and disaffirmance 754 II. Infant's earnings 755 III. Torts and crimes by or against an infant 756 IV. Suit or other legal proceeding by or against an infant ; 757 V. Other matters 758 INFORMATION 759 xxxvi TABLE OF CONTENTS. Inhabitant. [See Domicil.] INITIALS 759 INJUNCTION 759 I. General -rules 759 (1.) Where granted or refused 759 (2.) Bond; punishing violation of injunction 760 II. Particular cases 761 (1.) Staying proceedings 761 (2.) Water power and water course '. 761 (3.) Trade mark; firm name; trade secret; restraint of trade 762 (4.) Other matters 763 INN AND INNKEEPER i 763 Inquest. [See Coroner; Medical Examiner.] Insanity; insane person. [See Guardian; Lunatic; Will, I, (1).] INSOLVENT; INSOLVENCY 764 I. General rules , 765 (1.) To whom the insolvency statutes apply 765 (2.) Their constitutionality, and effect upon each other 765 (3.) Effect of the United States bankrupt laws 766 II. The court of insolvency; review of its proceedings 766 (1.) The court, and proceedings therein 766 (2.) Appeal to the superior court 767 (3.) Supervisory jurisdiction of the supreme judicial court 767 III. Application; warrant; schedule 768 (1.) Application by the debtor or a creditor 768 (2.) Warrant; proceedings thereupon 769 (3.) Schedule; creditors' first meeting 770 IV. Debts, and proof thereof 770 (1.) What claims are, or are not, provable, and to what amount 770 (2.) When and how proved; expunging 771 (3.) Creditor having security 771 (4.) Effect of proof 772 V. Assignment and assignee 773 (1.) Appointment and removal of assignee; his bond 773 (2.) What passes by the assignment 773 (3.) Effect of assignment on attachment or other process 774 VI. General powers, duties, and liabilities of the assignee 775 (1.) Sale of property; purchaser's rights 775 (2.) Actions and suits by and against him 775 (3.) Intervening in an action and continuing an attachment 777 (4.) Administration; accounting; dividends; surplus 777 VII. Proceedings intermediate the assignment and the discharge 778 (1.) Examination of the debtor 778 (2.) Examination of a third person 778 (3.) Creditors' second and third meeting 779 VIII. Discharge 779 (1.) When and how granted; form 779 (2.) When refused; when void if granted 779 (A.) Defects in the proceedings '. 779 (JS.) Creditors' dissent or assent 779 (C.) Unlawful preferences 780 (Z>.) Tradesman not keeping proper books 781 (3.) Effect 781 (4.) New promise 782 (5.) Pleading; proving; attacking 782 (6.) Special judgment to hold sureties 783 IX. Unlawful preferences, and other frauds on the insolvent law 783 (1.) When the assignee may or may not sue or defend 783 (2.) Evidence ; 785 (A.) Generally 785 (B.) Insolvency 785 (C.) Intent 785 (D.) Reasonable cause to believe , 785 (E.) Ordinary course of business 786 (3.) Indictment of the debtor 786 X. Insolvent partnership 787 XL Insolvent corporation. [S ee Bank, I, (3) ; Corporation, IX ; Insurance, art. 67; Insurance Company, HC] TABLE OF CONTENTS. xxxvn Insolvent estate of decedent. [See Executor and Administrator, VI.] INSPECTION; SURVEY 789 INSURANCE l Q0 I. Rules common to the different kinds of insurance 790 (1.) The contract; how made; howcancelled 79Q (2.) Insurable interest 79? (3.) Application for insurance "93 (4.) Payment of the premium; waiver 793 (5.) Miscellaneous rulings respecting insurance agents 794 (6.) Notice and proofs of loss; acceptance and waiver 795 II. Accident insurance 797 DI. Fire insurance 797 (1.) Policy; statutory form; when affected by conditions or warranties 797 (2.) Representation; warranty; concealment; fraud; effect thereof 798 (3.) Property and interest covered 801 (4.) Risks assumed 803 (5.) Alienation of the property insured 804 (6.) Assignment of the policy 804 (7.) Other insurance 80S (8.) Increase of risk 807 (9.) Overvaluation; illegality; prohibited use 808 (A.) Overvaluation 808 (B.) Illegality 808 (C.) Prohibited use 808 (10.) Mortgagee 809 (11.) Remedies and defences; when and how suit brought; parties; pleadings; pro- ceedings 811 (12.) Evidence 812 (13.) Damages 812 (14.) Insurer's remedy upon payment 814 IV. Life insurance 814 (1.) Policy; effect thereof; application therefor 8 14 (2.) When the policy is or is not forfeited < 815 (3.) "When and to whom the insurance is payable; action upon the policy 816 V. Marine insurance 818 (1.) The policy; validity; interest and property covered 818 (2.) Other insurance 820 (3.) Premium; return thereof; offset of premium and loss 820 (4.) Assignment of the policy or property insured 821 (5.) Seaworthiness; evidence thereupon 822 (6.) Other warranties; representation; concealment; fraud 823 (7.) Perils insured against or excepted 824 (A.) In general , 824 (B.) Seizure; capture; detention 825 (C.) Loss of freight... .'. 826 (D.) Barratry 826 (B.) Collision 827 (8.) Beginning and end of risk 827 (9.) Voyage; deviation; transshipment 829 (10.) Totalloss 830 (11.) Abandonment 833 (A.) The right to abandon 833 (B.) When necessary; waiver thereof 834 (C.) Computation of a constructive total loss 834 (D.) When and how made; acceptance, and effect thereof 834 (12.) General average 835 (13.) Partial loss or particular average 837 (14.) Adjustment 838 (15.) Action upon the policy; damages; evidence 838 INSURANCE COMPANY 841 I. Miscellaneous statutory provisions 841 II. Mutual insurance company 841 (1.) Officers; members; policy, and cancelment thereof '. 841 (2.) Classification of risks; deposit notes 843 (3.) Assessment 843 (4.) Ratification of assessment; action therefor 845 HI. Insolvent insurance company 845 IV. Foreign insurance company 846 INTEREST 847 I. General rules 847 xxxviii TABLE OF CONTENTS. Interest, continued. II Rules in particular cases 849 (1.) Restraint by judicial proceedings 849 (2.) Land taken for public use 849 (3.) Trust ■ 849 (4.) Certain contracts 850 III. Rate and time of computation 851 IV. Rulings since the repeal of the usury law 853 INTERNAL REVENUE (United States) 853 International award. [As to the conclusiveness of an award by commissioners, appointed under a treaty between the U. S. and a foreign power, see Estoppel, art. 73. For other rulings, arising under such an award, see Assumpsit, art. 138; Bank- ruptcy, art. 43; Executor and Administrator, art. 206; Insolvent, art. 253; Insurance, art. 778.] INTERPLEADER 853 INTERROGATORIES TO PARTY 854 Intestate's estate. [See Descent and Distribution; Executor and Administrator; Heirs, etc.; Widow, II.] INTOXICATING LIQUORS 856 I. The statutes 856 (1.) General principles 856 (2.) Constitutionality; and effect upon each other 857 (3.) Effect upon contracts relating to liquor; evidence thereupon 858 II. Statutory prohibitions 858 (1.) To what liquors and sales the prohibition applies 858 (2.) Sale without license; generally 860 (3.) Sale without license; agent or servant . 860 (4.) Sale to infant; infant loitering; sale on Sunday 861 (5.) Keeping, etc., with intent unlawfully to sell 861 III. License 862 (1.) General principles 862 (2.) Sufficiency; validity; school house within 400 feet 862 (3.) Effect; conditions, and violation thereof; forfeiture; revocation 863 IV. Civilaction 864 (1.) For damages caused by another's intoxication 864 (2.) For furnishing to a drunkard, after notice 864 V. Criminal prosecution 864 (1.) General principles 864 (2.) Indictment; complaint. [See Indictment. Ill; IV; VII; VIII, (47).] (3.) Burden of proof 865 (4.) Evidence 865 {A.) Time and place 865 (B.) Act of selling 866 (C.) Keeping with intent to sell; keeping tenement for unlawful sales 867 (.D.) Character of the liquor 869 (5.) Conviction; sentence; former conviction or acquittal 869 VI. Search; seizure; forfeiture 870 (1. ) General principles 870 (2.) Complaint; warrant 871 (3.) Execution and return of the warrant; notics to claimant 872 (4.) Trial; verdict; judgment; review of the proceedings 873 VII. Miscellaneous rulings under obsolete statutes 873 Intoxication. [See Drunkenness; Intoxicating Liquors, IV.] Inventory (of decedent's estate). [See Executor and Administrator, III, (1).] IPSWICH 875 ISLAND 875 J. JAIL; JAILOR 876 Joinder of counts. [See Indictment, IV, (1); Pleading, III, (2).] Joinder of parties. [See Abatement, II, (2); Equity Pleading and Practice, II (IV Indictment, IV, (2); Joint Liability, I; II; Parties, II.] JOINT LIABILITY; SEVERAL LIABILITY 877 I. On contract 877 TABLE OF CONTENTS. xxxix Joint Liability, etc., continued. II. For a tort jjZ? (1.) When tort feasors are jointly liable ■ °'° (3.) Contribution or indemnity between tort feasors °' B III. Release or discharge of one joint debtor or tort feasor 879 JOINT STOCK COMPANY; VOLUNTARY ASSOCIATION 879 JOINT TENANTS; TENANTS IN COMMON 880 I. Of real properly 881 (1.) What estates are held in joint tenancy or in common ., 881 (2.) Conveyance, or other alienation 881 (3.) Rights and remedies 882 II. Of personal property 884 Jointnre. [See Dower; Widow.] JUDGE 885 JUDGMENT 886 I. General rules 887 (1.) Domestic judgment 887 (2.) Foreign judgment 888 II. Judgments in particular cases 889 (1 .) Judgment by default 889 (2.) Judgment nunc pro tunc 889 (3.) Two or more defendants = 890 III. Arrest of judgment; judgment non obstante veredicto 890 IV. Action upon a domestic judgment . . . 891 (1.) When the action does or does not lie; pleadings 891 (2.) Defences; evidence; statutory presumption of payment J 892 Judicial sale. [See Execution, II, (2); IV, (2); Taxation, VII, (5).] JUNK DEALER 892 JURISDICTION 893 I Courts and other tribunals of the Commonwealth 893 (1.) In a civil cause..... 893 (2.) In a criminal cause 894 II. Courts of the United States, exclusive and concurrent 895 JURY; JURORS 895 I. General rules ...:.......... 896 (1.) Qualifications; exemptions; selecting; summoning 896 (2.) Talesmen 896 II. Objections to jurors; when and how taken; challenges, and disposition thereof 897 (1.) Challenge generally; when requisite to render objection available 897 (2.) Challenge to the array 897 (3.) Challenge to the poll: when sustained, and when not; questions as to juror's com- petency 897 (4.) Peremptory challenge 899 III. Province of the jury upon questions of law in a criminal cause 899 JUSTICE OF THE PEACE; TRIAL JUSTICE, AND HIS COURT 899 I. The justice and his office 900 (1.) Nature of the office; incidental powers; disqualification 900 (2 ) Personal liabihty; what acts are judicial, what ministerial 900 II. Trial justice, and his court 901 (1.) The office of trial justice; general attributes of his court 901 (2.) Civil jurisdiction 902 (3.) Removal of cause concerning real property 902 (4.) Practice, pleadings, and proceedings 902 III. Criminal cause , 903 IV. Justice's record in a civil or criminal cause 904 Justifiable homicide. [See Homicide, I.] JUVENILE OFFENDERS , „ 905 K. Keeper of attached property. [See Attachment, II, (3).] Kerosene. [See Illuminating Fluid,] xl TABLE OF CONTENTS. KIDNAPPING 905 Kin, next of, kindred. [See Descent and Distribution; Devise and Bequest, II, (3); II, (4), Executor, and Administrator, VII, (2); Heirs, etc.; Poor, I, (2). J L. LACHES.... 905 Lading, bill of. [See Bill of Lading.] Lake. [See Boundary Line, II, (4); Fish, etc , I; Ice; Pond; Water Course ] LAND...... 906 Land damages. [See Eminent Domain; Highway, IV, (4); Railroad, II, (7); Town and City, VI.] LANDLORD AMD TENANT, LEASE 906 I. The relation; how created 907 II. Different kinds of tenancy 908 (1.) Tenant at will.... 908 (2.) Tenant at sufferance 910 (3.) Tenant under a lease. [See post, V; VI.] III. Notice to quit 911 (1.) When necessary, and when not 911 (2 ) Sufficiency 912 (3.) How rendered nugatory 912 IV. Rights, duties, and liabilities, proceeding from the relation 913 (1.) Defects in, or improper use of, the property 913 (2.) Repairs; injury; destruction 914 (3.) Tenant estopped to deny landlord's title 914 (4 ) Crops; emblements; fixtures; appurtenances , 915 (5.) Other rights, duties, and liabilities 915 V. Lease; validity; effect; duration 916 (1.) Nature; validity; what passes 916 (2.) Assignment by lessee; sublease; covenants running with land 917 (3.) Assignment by lessor; attornment 918 (4.) Surrender; forfeiture 919 (5.) Eviction 920 (6.) Other modes of termination 920 VI. Lease, certain special stipulations 921 (1.) Election to renew. 921 (2.) Payment of taxes and assessments 922 (3.) Repairs; rebuilding; redelivery in good condition 922 (4.) Quiet enjoyment 923 (5.) Alterations and additions. 923 (6.) Underletting; assignment 924 (7 ) Abatement of rent 924 (8.) Other stipulations 924 VII. Landlord's remedies 925 (1 ) Action for rent • •• 925 (2.) Action for use and occupaiion 926 (3.) Ejectment; re-entry; writ of entry. [See Condition, II, (3); Real Action.] ' (4.) Statutory action to recover possession 927 LANDOWNER 929 Lapse. [Of devise or bequest, see Devise and Bequest, V. Of time, see Accord and Sat- isfaction; Adverse Possession; Contract, V, (3); Evidence, IV; Judgment, IV; Laches; Limitation; Payment; Reasonable Time; Vendor and Vendee, II.] LARCENY 930 I. Larceny in general, or simple larceny ' 930 (1.) The crime "...'!!!!!! 930 (2.) Seizure and restoration of stolen property 932 (3 ) Punishment '.'..,'.",".'.".'..'. 932 II. Particular kinds of larceny; common thief 932 (1.) In a building or vessel ..!...! 932 (2.) Prom the person '... !!!".! 933. (3.) Common and notorious thief .*.'.!!..".'...'.'.'. 933 III. Evidence and rulings at the trial 933 Lascivious cohabitation. [See Cohabitation.] Lascivious person. [See Lewdness.] Lasciviousness. [See Lewdness.] TABLE OF CONTENTS. xk Lateral support. [See Land Owner.] Law and fact, questions of. [See Questions of Law, etc.] Law of nations. [See Conflict of Laws.] Law of the road. [See Highway, I, (4).] Lease. [See Landlord and Tenant, V; VI.] Leather. [See Inspection] t Legacy. [See Devise and Bequest.] Legal tender. [See Money.] Legatee. [See Devise and Bequest; Heirs, etc.] Legislature. [See Constitutional Law, III, (2); General Court.] Legitimacy. [See Bastard, I, Descent, etc., II; Husband and Wife, I ] Letter of credit. [See Bill of Exchange, etc., I, (7).] Letters and answers. [When evidence, and effect thereof, in general, see Evidence, IV, (9); V, (4); VI, (2); and art. 835. As to anonymous letters, see Evidence, art. 1019. As to expert evidence of handwriting, cipher, etc. , see Evidence, IX, (2.). Generally, see Post Office.] Levy. [See Execution, II; III; IV.] Lewd and lascivious cohabitation. [See Cohabitation] LEWDNESS 936 LIBEL AND SLANDER 936 I. In what cases an action lies or does not lie 936 (1.) Slanderous words. 936 (2.) Libellous words or pictures 937 (3.) Words, etc., of doubtful meaning or application 938 (4.) Publication; repetition 939 II. In what cases an indictment for libel lies 939 III. Malice 940 IV. Privileged communication 941 (1.) General principles 941 (2 ) Confidential communication; members of churches and other societies 941 (3 ) Detection, etc., of crime; public officer; candidate for office 942 (4.) Judicial, quasi judicial, or legislative proceedings, and reports thereof 942 V. Justification 943 "VI. Parties and pleadings in a civil action 944 (1.) Parties 944 (2.) Declaration 944 (3.) Plea; answer 945 VII. Damages 945 (I.) General principles 945 (2 ) Evidence in mitigation or aggravation of damages 946 VIII. Evidence 947 (1.) In a civil action 947 (2.) In a criminal prosecution 948 IX. Trial ; verdict 948 Libel. (Process.) [For divorce, see Divorce, III. For forfeiture, see Betting, etc.; Fish, etc., II; Gunpowder.] LICENSE 948 LIEN... 950 I. General rules; common law lien 950 (1.) When and how a lien is created 950 (2.) Waiver; extinguishment; enforcement 951 II. Mechanic's and materialman's statutory lien on real property 952 (1.) How created; effect thereof 952 (A.) General principles 95i (B.) General requisites of the contract; priority of the lieu 952 (O.) Owner's authority 953 (Z>.) One contract for different jobs , . . , 954 (20 Filing the statement; subsequent proceedings to enforce the lien 955 (3.) Miscellaneous rulings under former statutes 956 HI. Mechanic's and materialman's statutory lien on a vessel 957 life estate. [See Curtesy; Devise and Bequest; Dower; Tenant for Life; Trust.] Vol. I— f xlii TABLE OF CONTENTS. Life insurance. [See Insurance, V.] life, tenant for. [See Tenant for Life.] Light and air. [See Condition, art. 22; Easement, arts. 27, 70, 71, 89, 91, 115, 148, 170; Highway, art. 379; Injunction, art. 8; Landlord, etc., art. 313.] LIMITATION OF ACTION 959- I. General rules 959 (1.) Effect and application of the statute 959 (2.) Limitation in equity; cases of trust, in equity and at law 960 (3.) Statutes of other jurisdictions 960 II. Pleading the statute 961 III. Decedent's estate 961 (1.) Special statutory bar in favor of an executor or administrator 961 (2.) Statutory exceptions 963. (3.) Equitable relief, after two years 963 (4.) Land sold by an executor or administrator 964 (5.) Action by creditor against heir, etc 964 IV. What times are limited in other cases 964 (1.) Attested note; bank bill 964 (2.) Real action; specialty; judgment 965 (3.) Simple contract; tort; penal statute 96fr V. Running of the limitation 966 (1.) General rules as to beginning 966 (2.) General rules as to ending; mode of computation 967 (3.) Mutual and open account current 968 (4.) Fraudulent concealment 969' (5.) Acknowledgment and new promise 969 (6.) Part payment 970 VI. Suspension of limitation 971 (I.) Absence 971 (2.) Disability 972 (3.) Death 972; Limitation of estate. [See Deed, III; Devise and Bequest, III; Trust, III.] Limited partnership. [See Partnership, VI, (1).] Limits of the prison. [See House of Correction; Jail.] Liquidated damages. [See Contract, IV, (2); Injunction, II, (3).] Liquor. [See Intoxicating Liquors.] LIS PENDENS 873 Literary property. [See Copyright.] LIVERY STABLE ' 973 LOAN AND FUND ASSOCIATION y 973 LORD'S DAT 974 I. What is a violation of the statute 974 (1.) When an act is deemed to be done on the Lord's day 974 (2.) What acts are or are not forbidden 975 (3.) Work of necessity or charity 975 II. Effect of violation 976 (1 ) Upon a contract 976 (2.) Upon an action for a tort 976 III. Criminal prosecution 977 LOST PROPERTY 978 LOTTERY 978 Lowland. [See Meadow. 1 LOWELL , 979 Lumber. [See Inspection.] LUNATIC; IDIOT; PERSON OF UNSOUND MIND 979 I. Civil rights and liabilities 979 II. Criminal responsibility. 980 III. Evidence as to insanity, and other mental incapacity 981 Lunenburg. [Boundary of, see Putnam v. Bond, IOO 58.] TABLE OF CONTENTS. ^diii M. Machinery. [See Fixture.] Mackerel. [See Inspection.] Magistrate. [See Judge; Justice of the Peace; Police Court.] Mail. [May be driven on the Lord's day, see Lord's Day, I, (2). As to the presumption of the receipt of letters, see Evidence, IV, (9). As to other matters, see Post Office.] MAINE, STATE OF 983 Maintenance. [See Champerty and Maintenance.] Malice. [See Homicide, II, (1); Indictment, III, (4); III, (5); III, (6); Libel and Slander, III; Malicious Mischief; Malicious Prosecution, I, (2).] MALICIOUS MISCHIEF 982 MALICIOUS PROSECUTION; ABUSE OF PROCESS 983 I. In what cases the action lies, or does not lie 983 (1.) General principles 983 (2.) Probable cause; malice 984 II. Damages 986 Malpractice. [See Abortion; Attorney; Physician-.] MALUM IN SE; MALUM PROHIBITUM 986 MANCHESTER 986 MANDAMUS 986 I. General rules; when the writ is granted or refused 987 ' II. Application for the writ; practice and proceedings. 988 Manslaughter. [See Carrier, IV, (2); Homicide] Manufacturing company. [See Corporation; Joint Stock Association.] Manure. [See Executor, etc., art. 515; Fixture, arts. 14, 16, 38, 39; Landlord, etc., art 133; Mill, art. 147.] Marine insurance. [See Insurance, V.] Market. [See Town and City, II, (5); IV, (1).] Market overt. [See Sale, art. 11.] Marriage. [See Husband and "Wife, I.] Marriage, breach of promise of. [See Promise to marry.] Marriage settlement. [See Husband and Wife, V; Statute of Frauds, II, (3).] Married woman. [See Husband and wife.] Marsh. [See Meadow.] Marshalling of assets and legacies. [See Devise and Bequest, II, (2); IV; Executor and Administrator, VI; VII, (1).] Massachusetts Medical Society. [See Injunction, arts. 10, 11; Libel and Slander, art. 101; Mandamus, art. 17.] MASTER AND SERVANT • 989 I. The relation , ; 990 (1.) When it exists, and when it does not exist 990 (2.) Termination; when notice is required 991 II. Master's liability for an injury to person or property. 992 (1.) To the servant, for a personal injury from the work 992 (2.) To the servant,. for a personal injury from a fellow servant's fault 993 (3.) To a third person, for the servant's fault 994 III. Servant's liability ; joint liability of master and servant 995 IV. Third person's liability to the master 995 Master in chancery. [See Equity Pleading and Practice, II, (3); Report.] Master of a vessel. [See Shipping, II, (1).] Mate of a vessel. [See Shipping, II, (2).] Materialman's lien. [See Lien, II; III.] MEADOW; LOW LAND; SWAMP 996 Meal. [See Inspection.] X liv TABLE OF CONTENTS. Measures and weights. [See "Weights and Measures.] Meat. [See Inspection; Provisions.] Mechanic's lien. [See Lien, II; III.] MEDICAL EXAMINER 996 Medical works. [As evidence, see Evidence, I, (8).] Meeting, disturbance of. [See Disturbance of Meeting.] Meeting-house. [See Deed, art. 142; Evidence, art. 323; Parish, II; Religious Associa- tion, II, (1).] Merger [See Contract* VI. (3); Conviction and Sentence; Felony; Former Adjudication, II; Judgment; Landlord and Tenant, V, (4); Mortgage, III, (3); III, (4); Trust, IV, (2); Waste, art. 15.] MESNE PROFITS 997 Middlesex Canal. [See Corporation, X; Mill, etc., art. 182.] Midwife. [See Physician.] MILITIA 998 I. General rules 998 II. The enrolled militia 998 (1.) Persons subject to and exempt from enrollment 998 (2.) The enrollment 999 III. The volunteer militia 999 (I .) Organization; arms; uniforms; equipments; pay 999 (2.) Enlistment; muster in; suspension; discharge 1000 (3.) Officers and noncommissioned officers 1000 (4.) Parades; encampments 1000 (5.) Invasion; insurrection; riot; tumult 1001 (6.) Excuses for nonperformance of duty 1002 (7.) Penalties for nonperformance of duty 1002 MILK 1003 MILL; MILL DAM 1004 I. Rights, liabilities, and remedies, at common law, by contract, or by prescription 1004 (1.) Dam; use of water 1004 (2.) Height of dam; flowing another's land 1005 (3.) Other rights and liabilities 1007 II. Rights, liabilities, and remedies under the mill acts 1007 (1.) General principles; application of the statute 1007 (2.) Mill owner's right to erect dam <. 1008 (3 ) Land owner's right to maintain proceedings; respondents 1009 (4.) Pleadings; proceedings; warrant for sheriff's jury 1010 (5.) Trial; evidence 1011 (6.) Damages;' offset for benefits 1012 (7.) Verdict; judgment; effect thereof; remedy thereupon 1012 (8.) Re-assessment of annual damages 1013 HI. Rights, liabilities, and remedies under certain special statutes 1013 Mine and mining 1014 Minister, foreign. [See Arrest, I, (2); Bail, art. 18; Jurisdiction, art. 38; Scire Facias, art. 26.] Minister of the gospel; priest. [See Assault, art. 51; Bishop; Charity; Husband and Wife, I, (1); Libel, I, (1); IV, (2); Parish, II, (2); Poor, III, (8); Religious Associa- tion; Taxation, II, (4).] Minor. [See Apprentice; Guardian; Infant; Parent and Child.] Misdemeanor. [See the titles of the different criminal offences; also Accessory and Ac- » complice; Attempt to commit a Crime; Conviction and Sentence; Felony; Highway, V, (4); VII; Indictment; Intoxicating Liquors, I, (1).] Misjoinder. [S^e Equity Pleading and Practice, II, (1); Indictment, IV, (1); IV, (2); Par ties, II; Pleading, III, (2); IV, (2); VI.] Misnomer. [See Indictment, IH, (2); IV, (6); Name.] Mistake. [See Equity Jurisdiction, II, (13). As to money paid by mistake, see Assump sit, IH, (2).] Mixed goods. [See Confusion and Accession.] Mixed property. [See Personal Property.] MONEY ,. 1015 TABLE OF CONTENTS. xlv Month. [See Time.] Mortgage (of personal property). [See Chattel Mortgage.] MORTGAGE {of real property) 1016 I. General rules ■ JJ}}' (1.) Validity and general requisites 1«10 (2.) Deed with a defeasance 1017 (3.) Priority ]^]° (4.) Title and estate of mortgagor and mortgagee lOlo (5.) Possession; right of and incidents to possession 1018 (6.) Assignment of the mortgage ,•.-•••■ 1019 (7.) Alienation of the equity of redemption, by grant or legal process; equities of successive grantees 1021 (8.) Taxes and assessments 1022 (9.) Injury to the mortgaged property 1023 (10.) Fraudulent concealment of incumbrance 1023 IL Particular kinds of mortgages 1024 (1.) By a corporation to trustees for bondholders 1024 (2.) For future advances; for indemnity or security , 1025 (3.) For support 1026 (4.) By tenant in common; or of undivided portion of land 1026 (5.) Other particular kinds of mortgages 1027 III. Discharge; extinguishment 1027 (1.) General principles; equitable discharge; constructive payment 1027 (2.) Release of mortgaged property, or part thereof 1030 (3.) Merger 1030 IV. Redemption 1031 (1.) General principles; who may redeem 1031 (2.) Time and mode; tender 1033 (3.) Allowances to and charges against the mortgagee 1033 (A.) General principles 1034 (.B.) Questions of interest 1034 (C.) Allowances for repairs and improvements 1035 (D.) Other disbursements; commissions to mortgagee 1035 (E.) Evidence upon allowances 1036 (F.) Charges against the mortgagee for rents and profits 1036 ((?.) Other charges 1036 (4.) Contribution 1036 (5.) Practice and proceedings upon a bill to redeem 1037 V. Mortgagee's or purchaser's remedies upon condition broken 1039 (1.) General principles 1039 (2.) Foreclosure by sale under a power 1039 (A.) Nature and effect of the power; when and how executed 1039 (B.) Notice of sale; adjournment 1040 (G.) Sale; who may purchase; affidavit 1041 (Z>.) Disposition of the proceeds 1042 (3.) Foreclosure by entry, and three years' possession 1043 (4.) Foreclosure by real action 1044 (A.) Nature of the action; when it lies; defences 1044 (B.) Parties; pleadings; practice; evidence 1045 (C) Judgment 1046 (5.) Action for the mortgage debt; opening or keeping open the foreclosure 1047 (6.) Statutory process to recover possession 1048 MULATTO 1048a Municipality. [See Town and City.] Municipal court of Boston. [See Police Court, II.] Murder. [See Homicide, II.] Mute. [See Larceny, art. 25; Practice, II, (2).] Mutual insurance. [See Insurance Company, II.] Mystic river. [See Fish, etc., II.] TABLE OF CONTENTS. VOLUME II. N. PAGE NAHANT.. 1049 NAME; MISNOMER 1049 NANTUCKET 1051 Naptlia. [See Illuminating Fluid ] National bank. [See Bank, II.] Naturalization. [See Alien and Citizen.] Navigable waters. [See Bridge: Fish, I; Mill and Mill Dam; Railroad, II, (2); Water Course, II, (2).] Necessaries. [See Husband and Wife, II, (4); Infant, I, (2), Insolvent, VIII, (3V, Parent and Child, I, (2); Trustee Process, III, (2), (C).] Ne exeat. [See Arrest, art. 7; Equity Jurisdiction, art. 14; Poor Debtor, art. 7.] NEGLIGENCE 1051 I. What is or is not actionable negligence 1051 (1.) General principles 1051 (2.) Proximate cause; third person's contributory act 1053 II. Plaintiffs conduct, as affecting his right to recover 1 054 (1.) Due care; freedom from contributory negligence 1054 (2.) Trespass, or other unlawful act 1057 m. Particular cases 1057 (1.) Railway and street railway cases 1057 (2.) Careless driving or riding; runaway horse 1060 (3.) Gas 1061 (4.) Other cases 1062 IV. Pleading and evidence 1063 (1.) Pleading ; 1 063 (2.) Evidence 1063 Negotiable instrument. [As to negotiable coupon bonds, see Bond, III, (4). As to other negotiable instruments, see Bank and Banking, III, (3), Bill of Exchange and Promissory Note, II, (1).] Negro. [See Conflict of Laws, III, (3); Constitutional Law, II, (5); III, (11); Mulatto- School, art. 23.] Neutral [See Contraband of War; Insurance, V.] NEW ENGLAND MISSISSIPPI LAND COMPANY 1065 New promise. [See Bankruptcy, II, (7); Insolvent, VIII, (4); Limitation of Action, V, (5); Statute of Frauds, IV. J NEW TRIAL 1065 I General rules , 1065 (1.) When a new trial may be granted; when it is discretionary 1065 (2.) New trial as to particular issues or particular parties 1067 II. For errors of law at the trial 1067 (1.) Admission or exclusion of evidence !!! °. .!'.'."'.'.!.'.'.'. ! 1067 (2.) Misdirection of the jury; erroneous ruling. .'."!!.'.. 1068 HI. For matters relating to the jury 1069 (1.) Interference; irregularity; mistake; misconduct; incompetent i'uror' .'"'.!'..'.! ! 1069 (2.) Verdict .against law or evidence , . . , 1071 TABLE OF CONTENTS. xivii Hew Trial, continued. (3.) Excessive or inadequate damages 1072 (4.) Testimony of jurors upon the application . 1073 VI. For matters resting in favor 1073 (1.) Surprise; accident 1073 (2.) Newly discovered evidence , 1074 V. Practice and proceedings upon the application 1074 Hew York aud New England Railroad, [See Corporation, X.] Next friend [See Guardian ad Litem; Infant, IV.] Next of kin. [See Descent and Distribution, I; Devise aud Bequest, II, (3); II, (4); Executor and Administrator, II, (2), VII, (2), Heirs, etc., I.] Night. [See Arson, Burglary; Indictment, III.] Nine-pins. [See Amusement, II, (4) ] Nolle prosequi [See Former Adjudication, I, Practice, n, (5).] Nolo contendere [See Indictment, V, (1); VI, (2).] Nou compos mentis. [See Guardian; Lunatic. Will, I, (1) ] Nonjoinder. [See Equity Pleading and Practice, II, (1); Indictment, IV, (1); IV, (2); Joint Liability, Parties, II; Pleading, IV; VI] Nonresident [See Aden, etc.; Domicil; Writ.] Nonsuit. [See Discontinuance, Trial, II, (4).] JNonuser. [See Corporation, IX; Easement, III, (1); Franchise.] Notary public. [See Bill of Exchange, etc., in, (1); III, (5).] Note, promissory. [See Bill of Exchange, etc ] NOTICE DEMAND 1075 I. When necessary; when unnecessary 1075 II. Sufficiency; effect . 1076 NUISANCE 1078 T Common law nuisances, common law remedies 1078 (1.) General principles 1078 (2.) Abatement; action 1079 (3.) Indictment 1080 II. Equitable remedy..... „ 1081 III. Statutory nuisances; statutory remedies 1082 (1.) General principles „ 1082 (2.) Tenement kept for liquor, prostitution, gaming, etc 1083 (3.) Noxious occupations and lands; abatement thereof, and assessment for expenses. 1083 JJullity of marriage. [See Husband and Wife, I, (2).] Nuncupative will. [See Conflict of Laws, art. 53; Will, art. 110.] 0. 'Oath. [Generally, see Deposition; Jury; Trial; Witness. In particular actions, for par- ticular proceedings, of particular officers, or persons, see the titles of those subjects respectively.] Oats. [See Inspection.] OBSCENE PUBLICATION 1085 OBSTRUCTION OP RAILROAD, OR STREET RAILWAY 1085 Offer of reward. [See Reward, Offer of.] OFFICE AND OFFICER 1085 I. General rules 1086 (1.) Tenure; removal; powers after expiration of term 1086 (2.) Officer dejure and officer de facto 1086 (3.) General rights, duties, and liabilities „ \\[ 1086 (4.) Return \"\ jogs (5.) Deputies „ . . . 1089 II. Liability in the execution of process 1090 (1.) Protection by the process ...!..! 1090 (2.) Liability to the creditor , \\' n \ jqqj (3.) Liability to the debtor "]][ 1094 (4.) Liability to a stranger to the process IO94 xlviii TABLE OF CONTENTS. Oil, illuminating. [See Illuminating Fluid.] Open and close, right to. [See Trial, II, (3).] Operative [Preference in case of insolvency, see Insolvent, VI, (4).] ORDER 1098 Ordinance. [See Town and City, II, (5).] OUSTER 1097 Overseer of the poor. [See Poor, I, (3); Town and City, III.] Oysters. [See Fish, III.] P. Pardon. [See Constitutional Law, III, (1). As to the effect of a recommendation to mercy by the jury, see Opin. of the Justices, 120 600, cited Trial, art. 172. J PARENT AND CHILD 1097 I. Bynature J°jJ£ (1.) Custody of child ™j« (2.) Maintenance and support ™j|| (3.) Child's services; action therefor, or for loss thereof 10jjj* (4.) Other matters 10 " II. By adoption 109ft III. Stepparent and step-child . I 100 PARISH (territorial) H0O I. General rules 1100 II. Rights, duties, powers, and liabilities of a parish and its members 1101 (1.) In general 1101 (2.) As to the minister » 1103 Park. [See Town and City, VI, (2).] Parsonage. [See Religious Association, II.] Particular average. [See Insurance, V, (13).] Particulars, bill of. [See Bill of Particulars.] PARTIES 1103 I. General rules 1103 II. Joinder of parties 1104 (1.) Plaintiffs 1104 (2.) Defendants 1105 (3.) Objection, when and how taken; effect of failure to take it 1106 PARTITION..... 1107 I. By act of the parties 1107 II. Remedy in equity 1107 III. Remedy at law 1108 (1.) When a partition will or will not be made. . . 1108 (2.) Practice; pleadings; proceedings; judgment .' 1109 (3.) Effect of the judgment 1110 IV. Partition by the probate court 1111 PARTNERSHIP 1112 I. General rules 1112 (1.) Nature and requisites; when a partnership does or does not exist 1112 (2.) Liability as partners to a third person , 1113 (3.) Evidence of partnership 1114 (4.) Death of a partner 1115 (5.) Assignment of a partner's interest 1116 (6.) What property is joint, and what is separate 1116 II. Power of each partner; liability of the firm for his acts 1117 (1.) Generally 1117 (2 ) Partner's act in fraud of the firm 1118 (3.) Firm's liability for partner's tort 1119 III. Dissolution '. 1119 (1.) How and when made; effect thereof generally 1119 (2.) Effect of notice, or want of notice, to a third person 1121 (3.) Equitable remedy for an accounting and settlement 1121 (4.) Items allowable and chargeable 1122 TV. Rights and remedies of partners inter sese 1123 TABLE OF CONTENTS. xlix Partnership, continued. (1.) Generally.: H2S (2.) Under particular stipulations in the articles 1124 V. Action by or against partners 1125 (1.) Generally 1125 (2.) Action by a joint or separate creditor 1126 VI. Particular kinds of partnerships 1127 (1.) Limited partnership 112T (2.) Partnership with a dormant member 1 127 (3.) Two partnerships, hpving a member in common 1128 (4.) Partnership with transferable shares 1128 PARTY WALL 1129 Passenger. [See Carrier, II; Negligence, I; II, (1); III, (1); Railroad, IV, (2).] PATENT 1129 Pauper. [See Poor.] Pawn. [See Pledge.] PAYMENT 1131 I. What is or is not payment 1131 (1.) General principles 1131 (2.) Check 1133 (3.) Note, or other new security 1133 (4.) Collateral security 1135 (5.) Part payment 1135 (6.) Fraud; illegality 1136 II. Pleadings; evidence; presumptions 1136 Peddler. [See Hawker and Peddler.] PENAL ACTION; (JUI TAM ACTION 1137 Penalty. [See Bond; Conviction and Sentence; Injunction, I, (1); II; Penal Action. As to whether a sum fixed in a contract is liquidated damages or a penalty, see Contract, IV, (2) ] Pension. [As to who is entitled to arrears upon a widow's death, see Executor and Administrator, III, (1). As to liability to attachment, etc., see Trustee Process, HI, (1).] Percolation. [Of water, damages by. See Land Owner; Negligence, art. 120; Town etc., VI, (4).] Performance of contract. [See Contract, V. As to specific performance in equity, see Specific Performance.] PEKJURV; SUBORNATION OF PERJURY 1138 I. General rules , 1139 II. Perjury 1139 (1.) The crime 1139 (2.) Evidence 1139 III. Subornation of perjury 1140 Perpetuating testimony. [See Deposition, IV.] PERPETUITY ; REMOTENESS 1140 PERSON 1141 PERSONAL PROPERTY 1141 I. General rules 1142 II. Rules in special cases; effect of an agreement 1142 (1.) As to a building 1143 (2.) Other things affixed to, or otherwise forming a part of, the realty 1143 III. Title to chattels 1143 Personal replevin. [See Habeas Corpus.] Petroleum. [See Illuminating Fluid.] Pew. [See Parish; Personal Property, art. 7; Religious Association, II.] PHYSICIAN AND SURGEON 1144 Pickpocket. [See Larceny, II, (2).] PILOT; PILOTAGE 1144 I. The office; pilot's general powers, rights, duties and liabilities 1145 II. Compulsory pilotage 1145 :_ Vol. I— g _^ — 1 TABLE OF CONTENTS. Place of trial. [See Practice, I, (2).] Play. [See Amusement, I, Copyright.] PLEADING 1146 I. General rules 1146 (1.) What must or need not be pleaded 1147 (2.) Surplusage 1147 (A.) Conclusions of law 1147 (B.) Immaterial averments or descriptions 1148 (C.) Inducement and aggravation 1148 (3.) The mode of statement 1149 (A.) Certainty; directness 1149 (2?.) Repugnancy 1149 (0.) Departure 1149 (4.) Defects cured by verdict, or by pleading over, or other waiver 1150 (5.) General effect of the practice act 1151 II. Rules respecting particular allegations 1151 (1.) Condition 1151 (2.) Written instrument 1151 (3.) Statute 1153 III. The declaration 1154 (1.) Statement of the cause of action 1154 (2.) Joinder of counts 1154 IV. The answer 1156 (1.) Defences admissible or inadmissible under a denial 1156 (2.) Pleading a substantive defence 1158 (3.) Admissions 1159 (4.) Hypothetical allegations; inconsistent defences 1161 (5.) Second or supplemental answer 1162 V. The replication 1162 VI. Thedemurrer 1163 VII. Filing pleadings; striking out and electing between counts or defences 1164 VIII. Obsolete rulings under the former system 1165 (1.) Duplicity 1165 (2.) Conclusion; similiter 1165 (3.) Repleader 1166 (4.) Profert ; oyer 1166 (5.) Videlicet; quod cum 1166 PLEDGE 1166 I. What is a pledge; general rights and liabilities thereunder. 1166 II. Redemption; sale by pledgee 1168 POISONING 1169 Police commissioner [See Town and City, III, (3), (E).] POLICE COURT ; DISTRICT COURT ; MUNICIPAL COURT 1169 I. Rulings generally applicable. 1169 II. Statutes relating to courts in Boston 1170 III. Statutes relating to courts elsewhere in the Commonwealth 1170 POLICE OFFICER 1171 Police regulations. [As to the constitutionality of various statutes, establishing regula- tions respecting persons and property, of the character of police regulations, see Constitutional Law, III, (5).] Poll parish. LSee Religious Association.] POLYGAMY 1171 POND 1172 POOR; POOR LAWS; PAUPER 1172 I. General rules 1172 (1.) Constitutionality and effect of statutes 1172 (2.) Liability of kindred and of husband , . 1173 (3.) General powers and duties of the overseers 1174 II. Rights and liabilities of the town 1174 (1.) Liability to an individual !!!!!!!!!!!!!! 1174 (2.) Liability to another town !!!.'!'.'.!!".".".! 1175 (3.) Evidence in actons between towns; estoppel 1176 (4.) Pauper's liability to the town 1177 (5.) Lunatic pauper *, ' 1173 (6.) State pauper ' \ ' U79 TABLE OF CONTENTS. li Poor, etc., continued. (7.) Prisoner pauper 1179 (8.) Bringing a pauper into the town 1180 (9.) Removal of apauper 1180 HI. Settlement 1181 (1.) Who is oris not entitled 1181 (2.) When lost or not lost 1182 (3.) Woman 1182 (4.) Child of a settled parent 1183 (5.) Resident on his freehold estate 1183 (6.) Resident taxpayer 1184 (7.) Public officer 1185 (8.) Minister of the gospel 1185 (9.) United States soldier or sailor 1186 (10.) •Incorporadon or division of a town 1187 (11.) Obsolete modes of settlement 1188 (A.) Slave 1188 (B.) Person assessed for five years 1188 (C.) Dweller not warned away; dweller approved 1188 POOR DEBTOR 1188 I. Application for the oath; recognizance 1189 (1.) Appearance before the magistrate: application 1189 (2.) Sufficiency of the recognizance 1189 (3.) Breach; discharge; surety's rights and liabilities 1190 (4.) Action upon the recognizance 1190 II. Notice to the creditor 1192 (1.) Issuing; sufficiency 1192 (2.) Service; officer's return : 1193 (3.) Waiver of defects 1194 (4.) New notice 1195 III. Proceedings subsequent to the notice; discharge 1195 (1.) Jurisdiction; how lost; adjournment 1195 (2.) Charges of fraud 1196 (3.) Granting or refusing the oath 1197 (4.) The discharge; effect thereof 1198 (5.) The magistrate's fees 1198 POST OFFICE AND OFFICER; MAIL 1198 Pound ; pound breaeh. [See Impounding ] Pound sterling. [See Money.] POWER 1199 I. Creation; validity 1200 II. Effect; interpretation 1200 III. Execution 1201 (1.) By whom 1201 (2.) Mode 1201 PRACTICE : 1202 I. In a civil cause 1202 (1.) The rules of court 1202 (2.) Venue 1203 (3.) Entry of action; entry "neither party ;" bringing cause forward 1204 (4.) Payment into court 1204 (5.) Other matters , 1205 ' II. In a criminal cause 1205 (1.) Warrant 1205 (■J.) Arraignment; pleading; standing mute 1206 (3.) List of witnesses 1207 (4.) Laying the indictment on file 1207 (5.) Nolle prosequi 1207 PRESCRIPTION 1208 Presumption. [See Evidence, IV; Payment, II.] Principal and accessory. [See Accessory and Accomplice.] Principal and agent. [See Agency.] Principal and surety. [See Guaranty; Statute of Frauds, II, (2) ; Surety ] PRINTER 1208 Prison. [See House of Correction; Jail; State Prison.] lii TABLE OF CONTENTS. Prison limits. [See Jail.] Private way. [See Easement; Highway, I, (1) ] Privilege. [See Arrest. I, (2); Attorney, II; Constitutional Law, III, (7); General Court; Libel, IV; Witness; I, (1); III, (4); V, (6).] PRIZE FIGHTING 1209 Probable cause. [See Arrest, II, (2); Libel, V; VII, (2), Malicious Prosecution, I. (2).] PROBATE COURT 1209 I. Jurisdiction and general powers 1209 II Decree; effect and conclusiveness thereof • • 1210 III. Opening or revoking a decree 1211 Procliein ami. [See Infant, IV.] Process. [See Writ.] Profits. [How computed. See Partnership, arts. 184 to 186.] PROHIBITION 1212 PROMISE TO MARRY 1212 Promissory note. [See Bill of Exchange and Promissory Note.] Property. [See Land Owner; Personal Property; Real Property; Taxation.] Proprietary. [See Common Lands and General Fields ] Proprietors of locks and canals, on Merrimack river. [See Bridge, III; Corpora- tion, X.] Prostitution. [See Bawdy-House and Prostitution; Cohabitation- Indictment, VIII, (10), VIII. (49); Lewdness.] Protest. [See Bill of Exchange, etc., Ill, (5); Taxation, Vin, (1).] Protestant Episcopal Church. [See Religious Association ] Provident institution for savings. [See Corporation, X ] PROVISIONS 1214 Proximate cause. [See Action, I; Insurance, III, (4); III, (11); Negligence, I, (2).] Public improvements. [See Highway; Town, VL] Public officer. [See Constitutional Law; Office and Officer' Town, III; and the titles of the different officers. ] Public school [See School J Public way. [See Highway.] Punishment. [See Conviction and Sentence; and the titles of the different crimes, etc.] Q- QUAKER 1214 Quantum meruit. [See Assumpsit, II. III.] Quarantine. [See Widow, I ] Quashing an indictment. [See Indictment, V, (2).] QUESTIONS OF LAW; QUESTIONS OF FACT; MIXED QUESTIONS 1213 I. General rules , 1215 II. Particular issues or other questions 1216 Quiet enjoyment. [See Covenant, II, (3); Landlord and Tenant, VI, (4).] QUIETING TITLE 1219 I. The statutory remedy 1219 II. Bill in equity 1220 Qui tarn action. [See Penal Action. ] QUO WARRANTO; INFORMATION IN THE NATURE OF A QUO WARRANTO. 1221 E. Racing. [See Betting.] Railer and brawler. [See Idle, etc., Person.] Railings. [Liability of town or city, for failure to erect railings in the highway, see Highway, VI. See, also, Railroad, III, (5).] ' TABLE OF CONTENTS. liii RAILROAD; RAILROAD COMPANY 1222 I. Railroad company 1223 (1.) Organization. [See Corporation, I; II; III; VLJ (2.) The franchise; protection and forfeiture thereof 1223 (3 ) General powers duties, and liabilities 1223 II. Locating the railroad ; acquiring the land; damages. 1224 (1 ) Location generally 1224 (2 ) Location over navigable water, a way, or another railroad 1225 (3.) Application to commissioners for assessment of damages 1225 (4 ) Correction of errors in the commissioners' proceedings 1227 (5.) Application for a jury; warrant thereupon; procuring the jury 1227 (6.) Trial; evidence; verdict, and proceedings thereupon; appeal 1228 (7.) Damages; benefits. 1230 (8 ) Rights and liabilities with respect to land taken or conveyed 1232 III. Constructing and maintaing the railroad 1233 (1 ) Certain statutes and contracts 1233 (2 ) Statutory remedy for laborers' wages 1233 (3.) Road crossing 1234 (4.) Bridge..... 1235 (5.) Fence, barriers; embankments 1236 (6.) Relocating a station .. , 1237 IV. Operating the railroad 1237 (1.) Liability as a carrier, or warehouseman. [See Bailment, II, (1); Carrier, I; Negligence, passim.] (2) Liability for a personal injury 1237 (3.) Liability for property fired....... 1237 (4) Liability for animal killed 1238 (5.) Signals and signs at crossings 1238 (6.) Obstructing ways 1239 (7.) Stations; tickets „ 1239 (8 ) Leased and purchased railrads 1240 (9. ) Connecting railroads; railroad commissioners. 1240 RAPE; ABUSE OF FEMALE CHILD; ATTEMPT TO COMMIT EITHER OFFENCE. 1241 Ratification. [See Agency, II; Infant, I, (4); Insurance, I, (5), and art. 470; Insurance Company, II, (4); Lunatic, I; Partnership, II.] REAL ACTION EJECTMENT 1242 I. General rules 1242 (1.) The different writs; when a real action is or is not maintainable 1242 (2.) Rulings in obsolete real actions 1244 II. Parties and pleadings 1244 (1.) Parties 1244 (2.) Pleadings , 1245 III. Evidence 1246 IV. Verdict; judgment , 1248 (1 .) In general .. 1248 (2.) Compensation for improvements; mesne profits 1248 V. Ejectment 1249 REAL PROPERTY 1250 REASONABLE TIME 1250 Receipt. [See Accord and Satisfaction; Evidence, VII, (2); Payment; Release.] RECEIVER 1251 RECEIVER OF GOODS STOLEN 1252 RECOGNIZANCE 1253 I. Validity; amendment; discharge 1253 II. Forfeiture; remission; action. 1254 RECORD 1255 Recording a conveyance. [See Chattel Mortgage, II, (3); Deed. II.] Recoupment of damages. [See Damages, V.] Recruiting. [See Militia, III, (2); United States Forces, I.] Redemption. [See Chattel Mortgage, IV; Execution, V; Mortgage, IV; Pledge, II.] Reference; referees. [See Arbitration.] Reform school. [See Conviction and Sentence, arts. 60 to 62.] Reformation of an instrument. [See Equity Jurisdiction, II, (13).] liv TABLE OF CONTENTS. REGISTER OF PROBATE 1258 Rehearing. [See Equity Pleading and Practice, II, (6).] Relation back. [See Agency. II, (1); Covenant, II; Deed, II, (1); III, (3); Execution, III; IV; Executor and Administrator, arts, 5, 29, 94; Infant, I, (4); Lunatic, I; Surety, art, 84.] RELEASE; DISCHARGE 1258 RELIGIOUS ASSOCIATION, POLL PARISH; CHURCH 1260 I. The corporation or society; its members and officers 1260 (1. ) Unincorporated society church 1260 (2.) Corporation 1261 (3.) General rights, powers, and liabilities 1262 (4.) Members 1262 (5.) Officers, and their election . 1263 (6.) Dissolution 1263 II. Property 1264 (1.) Church edifice; including pewholders' rights and liabilities. . . ., 1264 (2.) Other property 1265 Remainder. [See Deed, in, (3); Devise, etc., Ill, (6); Trust, III.] Remoteness. See Perpetuity.] REMOVAL OF CAUSE 1266 I. Removal from the superior court to the supreme judicial court 1266 II. Removal from a state court to a United States court = 1267 Rent. [See Landlord and Tenant, VI, (7); VII, (1).] Repleader. [See Pleading, VIII, (3).] Replegiando, de Iiomine. [Writ of, see Habeas Corpus.] REPLEVIN..... 1268 I. Bringing and maintaining the action 1268 (1.) Jurisdiction 1268 (2.) When the action lies, generally 1269 (3.) Demand, or other prerequisite 1269 (4.) By whom brought •. 1270 (5.) Against whom brought 1270 IL Writ; bond; pleadings; evidence 1271 (1.) The writ; execution thereof 1271 (2.) The bond; breach thereof; action thereupon 1271 (3.) Pleadings and evidence in replevin 1273 III. Judgment 1274 (1.) Form and effect; judgment for a return; appeal 1274 (2.) Damages; costs 1275 REPORT 1275 Requisition. [See Constitutional Law, II, (5); Habeas Corpus.] Rescission. [See Contract, VI, (1); Fraud, II; V, (1); Sale, I, (3); III, (1); School, passim; Town and City, II, (4).] RESCUE 1277 Res gestae. [See Evidence, VI, (1).] Res judicata. [See Former Adjudication.] Residence. [See Domicil.] Respondeat superior. [See Agency, IV, (1); Master and Servant, II; Negligence.] Restitution. [See Forcible Entry, etc., I; Larceny, I, (2); Real Action, IV; V; Replevin, III, (1).] Restraint of trade. [See Contract, III, (1); Good Will.] Restriction. [Upon the use of land. See Condition, I, (1); Easement; Land Owner; Real Property.] Resulting trust. [See Trust, II, (3).] Return. [See Office and Officer, I, (4); Replevin, II, (1); Writ, III; and the titles of the different actions, writs, etc.] Revenue stamp. ( U. S.). [See Internal Revenue.] Reversion. [See Deed, III, (3!; Devise and Bequest, II, (4); III, (1); III, (6); III, (8); Tenant for Life; Trust, III.] TABLE OP CONTENTS. lv REVIEW, WRIT OF 1278 I. When granted or refused 1278 II. Proceedings; judgment 1279 (1.) Petition;' writ 1279 (2.) Bond 1280 (3.) Trial; hearing; judgment 1281 Revival. [See Abatement; Equity Pleading, etc., I, (2); Will, I, (3).] Revocation. See Agency, I, (4)-, Will, I, (3).] REWARD, OFFER OF 1282 RHODE ISLAND .... 1283 RIOT • .••••. 1283 Riparian owner. [See Alluvion; Boundary Line, II, (4); Bridge; Deed, III, (4); Fish; Island; Mill; Pond; Sea Shore; Town, VI, (3); VI, (4); Water Conrse.] River. [See Boundary Line, II, (4); Bridge; Water Course.] Road. [See Highway.] Road, law of the. [See Highway, I, (4).] ROBBERY 1283 Rule in Shelley's case. [See Deed, III, (3); Devise and Bequest, art 177.] Rules of court. [See Practice, I, (1).] S. SALE (of personal property) 1283 I. Sufficiency; validity; effect 1284 (1 .) General principles 1284 (2.) Conditional sale, waiver of condition 1285 (3.) Fraudulent sale; sale procured by fraud 1286 II. When title passes 1287 (1.) General principles 1287 (2.) As against a creditor or subsequent purchaser 1288 (3.) Sufficiency of delivery 1289 (4.) Acceptance 1290 III. Warranty 1290 (1.) Sufficiency; interpretation; remedy for breach .... 1290 (2.) Sale by sample; other implied warranties 1292 IV. Seller's remedies 1293 (1.) Action for the price or value 1293 (2.) Seller's lien; stoppage in transitu ; 1294 Sale (of real property). [See Vendor and Vendee.] Salem and Danvers aqueduct. [See Corporation, X.] SALVAGE 1295 Samana Bay company. [See Conflict of Laws, art. 132.] Saturday. [Keeping, as the Sabbath, no excuse for violation of the Lord's day statutes. See Lord's day, art. 68.] SAVINGS BANK 1296 I. General powers, rights, duties, and liabilities 1296 II. Deposit; bank book 1296 SCHOOL 1297 I. Public schools; teachers and scholars 1298 (1.) What schools are, and what are not, public schools 1298 (2.) Teachers; scholars 1298 (3.) Regulations; discipline 1298 II. The general school committee; the prudential committee 1299 III. School houses; school land 1300 (1.) Location; acquisition of the land 1300 (2.) Building the school house 1301 (3 ) Land conveyed or devised for school purposes 1301 IV. School districts 1302 (1.) Establishment; alteration; abolition 1302 (2.) General powers and liabilities 1303 (3.) Clerk •. 1303 (4.) Meetings 1303 Ivi TABLE OF CONTENTS. School, continued. V. School taxes 1304 SCIRE FACIAS 1305 SEA SHOEE; SEA WEED 1306 SEAL - ■•- *307 Seaman. [See Shipping, II, (3); United States Forces.] SEARCH WARRANT • 1307 Seaworthiness. [See Insurance, V, (5).] Security for costs. [See Appeal, 7 T I; Error; Writ, II, (2).] ' SEDUCTION '. 1308 SEISIN; DISSEISIN ; 1308 Selectmen. [See Town, III, (3), (B).] Senate. [See Constitutional Law, III, (2); General Court.] Sentence. [See Conviction and Sentence.] Sepultui-e. [See Burial.] Servant. [See Apprentice; Master and Servant.] Service. [See Writ, III; and the titles of the different write,] Services. [See Assumpsit, III, (4); Master and Servant, I.] Servitude. [See Easement and Servitude.] SET OFF , 1310 I. General rules 1310 II. Statutory set off 1310 (1.) By or against what demands 1310 (2.) Parties generally 1311 (3.) By or against an executor or administrator 1312 (4.) By or against an assignee in insolvency 1313 (5,) Filing declaration in set off; subsequent proceedings 1313 (6.) Set off of executions 1314 III. Set offs not within the statute 1314 (1.) By agreement 1314 (2.) By bill inequity 1314 (3.) Set off of judgments on motion 1315 Settlement. [See Accord and Satisfaction; Payment, I; Poor, III; Release and Dis- charge.] Several liability. [See Joint and several Liability.] Sewer. [See Town and City, VI, (3).] Shade tree. [See Tree.] Shaker. [See Habeas Corpus; Parent and Child; Religious Association; Quaker.] Shelley's case, rule in. [See Deed, III, (3); Devise and Bequest, art. 177.] Shell flsh. [See Fish, HI.] SHERIFF '.. 1315 SHIPPING 1316 I. Owners and ownership 1316 (1.) Title, and evidence thereof 1316 (2.) Mortgage 1317 (3.) Rights and liabilities of owners 1317 (A.) Part owners 1317 (B.) Collision, negligence, and other torts; effect of the U. S. statute 1318 (C) Loss of goods, etc., generally 1318 (Z>.) Repairs; supplies; expenses; services 1319 (E.) Miscellaneous rights and liabilities 1319 II. The ship's company 1320 (1.) Master 1320 (A.) General authority to bind owners 1320 (B.) Sale of the vessel or cargo 1320 (C.) Liability to owners; accounts with them; liability to seamen 1321 (.D.) General rights and duties, as to cargo and freight 1321 (E.) Discipline; navigation; miscellaneous s 1322 (F.) His wages 1323 TABLE OF CONTENTS. Mi Shipping, continued. (2 ) Mate; supercargo; ship's husband; cook; their wages. . . 1323 (3.) Seamen; their wages, lays, etc 1324 III. Employment of the vesssel 1325 (1.) Charter or other hiring 1325 (2.) Affreightment contract; freight „ 1327 (3.) Consignment 1328 (4.) Average 1328 Shirley. [Boundary between, and Lunenburg. See Putnam ». Bond, 100 58. J Show. [See Amusement.] Sidewalk. [See Highway, V, (2); Town and City. II, (5).] Signature. [See Evidence, IX, (2); Initials; Statute of Frauds, IV, (1); IV, (2).] Slander. [See Libel and Slander.] SLAVERY...'..... 1329 SMOKING 1329 Snow. [See Highway, VI; Ice; Landowner; Landlord and Tenant, IV, (1); Negligence] SODOMY 1329 Soldier. [As to a residence or a settlement, acquired by military service, see Poor, III, (9). For other rulings, see Militia; United States Forces.] Specification. [See Bill of Particulars; Pleading ] SPECIFIC PERFORMANCE 1329 I. General rules 1330 (1 ) Jurisdiction generally 1330 (2.) Requisites of the contract 1331 (3.) Conduct of the plaintiff 1332 II. Rules specially relating to land contracts 1332 (1.) Enforcing a written contract 1332 (2.) Oral contract; part performance. 1333 (3.) Title to the land 1333 III. Pleadings; decree, including relief in damages 1334 Spendthrift. [See Guardian.] Spirituous liquors. [See Intoxicating Liquors ] Spring. [See Water Course.] Springfield. [See Railroad; School, art. 70; Town and City.] Stable. [See Livery Stable.] Stale demands. [See Equity Jurisdiction, I, (1); Laches; Limitation of Action.] Stamp. ( U. S.). [See Internal Revenue.] Stare decisis. [See Former Adjudication.] State. [See Commonwealth; Constitutional Law, II; III.] STATE PRISON ; 1335 STATUTE 1335 I. Different kinds of statutes 1335 (1.) Public and private statutes 1335 (2.) Statute taking effect upon a condition 1336 (3.) Penal and remedial statutes 1336 II. Interpretation ; 1337 (•1.) General principles 1337 (2.) Particular expressions 1339 (3.) Whether retrospective; effect upon past and pending transactions 1339 III. Repeal; revision; re-enactment 1341 (1.) Effect of repeal; revision 1341 (2.) Repeal by implication; re-enactment 1341 Statute of descent and distribution. [See Descent and Distribution.] STATUTE OF FRAUDS AND PERJURIES 1342 I. Operation and effect of the statute 1343 (1.) General principles 1343 (2.) Contract partly within the statute , 1344 (3.) Pleading ; 1344 II. Contracts other than for goods 1344 Vol. I— h lviii TABLE OF CONTENTS. Statute op Frauds and Perjuries, continued. (1 ) By an executor, administrator, or assignee in insolvency 1344- (2.) Special promise to answer for the debt, etc., of another 1345 (3.) Agreement made upon consideration of marriage 1346- (4.) Agreement for the sale of real property 1346 (5 ) Agreement not to be performed within a year 1347 (6 ) New promise by discharged insolvent or bankrupt 1348 III. Contract for goods 1348 (1.) When within or without the statute 1348 (2.) Part payment of the price; part receipt of the goods 1348 IV. The memorandum 1349 (1 ) Execution by the party to be charged 1349 '2 ) Execution by a broker, auctioneer, or other agent 1350 (3.) Contents; sufficiency; oral testimony 1350 V. Representation concerning the character, credit, etc., of another 1352 VI. Stock jobbing contract 1352. Statute of limitations. [See Limitation of Action.] Statute of uses. [See Trust, I.] Steamboat ; steamship. [See Carrier; Negligence; Shipping.] STEAM ENGINE 1353 Stipulation. [See Practice, I, (5).] STOCK JOBBING 1353 Stoppage in transitu. [See Sale, IV, (2).] STORE;" "SHOP." 1353 Stray. [See Estray.] Street. [See Easement; Highway; Town and City, II, (5.] STREET RAILWAY ; HORSE RAILROAD COMPANY 1353 Submission of controversy. [See Arbitration; Case stated.] Subornation of perjury. [See Perjury, III.] Subpoena; subpoena duces tecum. [See Witness, I, (2).] SUBROGATION 1355 Subscription. [As to the signature to a deed, contract, etc., see Deed; Initials; Statute of Frauds, IV, (1); IV, (2). As to the validity of a subscription for charitable or literary purposes, or other object in which the promisor was not directly interested, see Contract, II, (1). As to a subscription for corporation stock, etc., premium notes, etc., see Corporation, II, (1); Insurance Company, II. For other rulings relating to subscriptions, see Assumpsit, arts. 87, 106, 107, 113; Condiiion, art. 25; Contract, arts. 59, 72, 118 to 123, 337, 339, 489, 490; Insurance, art. 336.] Suffolk county auditor. [See Auditor of Accounts.] SUFFOLK COUNTY, SUPERIOR COURT OF 1356 SUICIDE 1356 Sunday. [See Lord's Day.] Supercargo. [See Shipping, II, (2).] SUPERIOR COURT 1356 Suppletory oath. [By a plaintiff, to prove ids account book. See Evidence, VIII, (4).] SUPPLICAVIT 1357 Support. [Gifts, mortgages, contracts, etc., for support, see Devise and Bequest, III, (1); III, (8); Mortgage, II, (3); Specific Performance, art. 13; Statute of Frauds, arts. 55, 83. Right to lateral support of the soil, see Land Owner.] SUPREME COURT OF THE UNITED STATES 1357 SUPREME JUDICIAL COURT 1357 SURETY 1358 I The contract of suretyship; enforcement thereof 1359 (1. General rules 1359 (2.) Rules, where the surety was indemnified 1359 1 (3. ) Action against a surety 1360 II. Discharge of a surety 1360 (1 .) Payment or tender; discharge of principal '.'. ". '. '. '. ', ',', ,'. . '. \ \ \ \ \ \\ ', \ '. '. '. '. 1360 TABLE OF CONTENTS. lix Surety, continued. (2.) Alteration of the contract 1361 (3.) Extension of time; forbearance J«°J (4) Other acts to the surety's prejudice I**" III. Surety's rights and remedies over 1363 (1.) Subrogation: and oilier equitable remedies against the creditor Ipoo (2.) Against the principal 1363 (3.) Against a cosurety ldb4 Surface water. [See Land Owner; Water Course, I.] Surgeon. [See Physician and Surgeon.] Surplus revenue. [See United States surplus Revenue.] Surveyor of highways. [See Highway, VII ] Surveyor of lumber. [See Inspection.] Survival of action. [See Abatement, I, (1).] Survivorship. [See Devise and Bequest, III; Evidence, IV, (3); Joint Liability; Joint Tenants.] Suspension of the power of alienation. [See Perpetuity.] Swamp. [See Meadow.] T. Tare. TSee Inspection ] TAUNTON 13 fi 6 Tavern. [See Inn and Innkeeper.] TAXATION 1366 I. General constitutional requirements 1366 II Persons and property subject to or exempt from taxation 1367 (1) Poll tax 1367 (2.) Real property taxable . . 1367 (3.) Personal property taxable 1367 (4.) Persons and property exempt from taxation 1368 III To whom and where real property is assessable 1369 IV. To whom and where polls and personal property are assessable 1369 (1.) Taxpayer's residence; polls and property there assessable 1369 (2.) Special rules, relating to particular personal property 1370 (A.) Goods in a hired shop, etc. ; machinery in a factory 1370 (B.) Decedent's property, and other property held in trust 1371 (ft) Partnership property; vessel 1372 V. Taxpayer's duties and liabilities upon assessment 1373 (1.) List 1373 (2.) Penalties for evading taxation 1373 VL Assessors; their rights, duties and liabilities 1373 (1.) Who are authorized to act 1373 (2.) Making the assessment 1374 (A.) Poll tax 1374 {B.) What sums are assessable 1374 (ft) Assessment of property 1374 (D.) Miscellaneous rulings as to the validity of the assessment 1375 (3.) Deposit of the list for inspection 1375 (4.) Abatement 1376 (5.) Omitted assessment; re-assessment 1377 (6.) Committing tax list and warrant to collector 1377 (7.) Liabilities of assessors 1377 (8.) Compensation of assessors 1378 VII. Collection of taxes 1378 (1 .) Selection, qualification, and general rights, duties, and liabilities of the collector. 1378 (2.) Collection by distress and sale 1379 (3.) Collection by imprisonment 1380 (4.) Collection by action 1380 (5.) Collection by sale of real property taxed 1381 (A .) Lien of tax upon real property; when sale allowed 1381 (B.) Notice of sale 1381 (ft) Sale; collector's fees; effect of invalidity 1382 (D.) Collector's deed 1382 (E.) Effect of sale; redemption 1382 lx TABLE OF CONTENTS. Taxation, continued VIII. Actions and suits by persons taxed 1383 (1.) Action to recover back an unlawful tax 1383 (2.) Relief in equity 1384 (3.) Remedy over . 1384 IX. Taxation of corporations by the tax commissioner 1384 (1.) General principles 1384 (2.) Particular corporations 1385 TELEGRAPH 1386 Tenant. [See Landlord and Tenant; Real Action.] TENANT FOR LIFE ■ 1386 Tenants in common. [See Joint Tenants and Tenants in Common.] Tenant in tail. [See Estate Tail.] TENDER 1887 Ten pins. [See Amusement, II, (4).] Theatre. [See Amusement, I ] Threat to accuse of crime. [See Extortion, 11.] Timber [See Inspection; Tree.] TIME 1388 Title to property. [See Chattel Mortgage, III; Contract, rV, (5); Deed, III, (3); Devise and Bequest, III; Mortgage, I, (4); Personal Property, III; Sale, II; Shipping, I, (1).] TOLL 1389 Tomb. [See Burial.] Tort. See Action: Agency, Assault; Attorney; Case, Action on the; Conspiracy, II; Criminal Conversation; Damages, IV; Easement; Escape; Fraud; Highway, VI; Husband and Wife, II, (1); II, (4); Libel and Slander, Malicious Prosecution; Master and Servant; Negligence; Nuisance; Office, etc. ; Parent and Child ; Physi- cian; Penal Action; Seduction: Trespass; Town, V; Trover. As to waiving a tort and bringing assumpsit, see Assumpsit, I, (3). As to joining tort and assumpsit in a declaration, see Pleading, III, (2).] TOWN AND CITY 1390 I Creation; annexation; division; general powers and attributes 1391 (1.) Origin and creation; nature and general object 1391 (2.) Division; annexation 1391 (3.) General rights and powers ...... .- . 1392 II. Municipal legislation 1393 (1 ) Warrant for a town meeting. . . : 1393 (2 ) Proceedings of the meeting ; ._ , « 1394 (3.) Board of aldermen; city council '. ._„. ' 1395' (4.) Rescinding or reconsidering former action '. '. "...;. 1395 (5.) By-laws and ordinances ~.^. ^_;_ ■ 1396 (A.) Enactment; validity; effect. ..-.--. ^. • 1396 (B.) Violation; prosecntion therefor.?. ; ■« 1398 III. Officers, committees, and other municipal agents ._ 1399 (1.) Election; qualification; tenure; removal .. r", .„.,... t 1399 (2.) Powers, duties, and liabilities generally. 1400 (3.) Powers, duties, and liabilities of particular officers, virtule officiorum. -. 1401' (A.) Mayor 1401 (B.) Selectmen _ 1401 (ft) Town or city treasurer . - 1401 (B.) Clerk; city physician 1402 (E.) Police 1402 (4.) Compensation . . . : 1403 IV. Finances '. 1403 (1. ) Raising money; lawful or unlawful expenditures 1403 (2.) Taxpayers' equitable relief. 1404 (3.) Contracting debts 1405 V. Liabilities 1405 (1 ) General rules as to liability in tort 1405 (2.) Liability for officer's tortious act 1406 (3.) Liability upon a contract ... 1407 "VI. Public improvements .. „ 1407 (1.) Street; road. [See Highway.] TABLE OF CONTENTS. Ixi Town and City, continued. (2.) Park , 1407 (3.) Sewer 1407 (A,) General rights and liabilities of the city or town , 1407 (B.) Location; taking land or water; damages 1409 (C.) Assessment for benefits 1410 (4.) Water works; water rates 1411 (5.) Filling, etc., land; miscellaneous 1414 Town road. [See Highway.] Trade, restraint of. [See Contract, III, (1), Good Will; Injunction, II, (3) ] TRADE MARK 1414 Trades union. [See Conspiracy.] Transportation company. [See Carrier, Joint Stock Company.] Traveller. [See Carrier; Highway; Lord's Day.] TREATY 1415 TREE 1415 TRESPASS [AND ACTION OF TORT HERETOFORE KNOWN AS TRESPASS]. 1415 I. For an injury to the person. [See Arrest, III; Assault; Justice of the Peace, I, (2)- Negligence, I; Office and Officer; Taxation.] II. For an injury to real property 1416 (1.) The plaintiff's title 1416 (2.) What is or is not an actionable trespass 1418 (.4. ) In general 1418 (B. ) Implied license to enter; easement 1419 III. For an injury to personal property 1420 IV. Trespasser ab initio 1420 "V. Pleading...., ; 1421 VI. Evidence 1422 TRIAL 1423 I. Advancing, suspending, or postponing a trial 1423 II. General course of a trial 1424 (1.) Separate trials; simultaneous trials of different causes 1424 (2.) Mode, order, and extent of proofs; rulings upon evidence 1425 (3.) Right to open and close 1426 (4.) Nonsuit; withdrawing the cause from the jury 1427 (5.) Admissions and agreements; arguments to the jury; miscellaneous matters 1428 HI. Committal of the cause to the jury .■ 1428 (1.) Charge; instructions and directions 1428 (2.) Papers taken by the jury 1429 (3.) View 1429 (4.) Deliberations; jurors' general duties 1430 (5.) Discharge of the jury without a verdict 1430 IV. The verdict 1430 (1.) General principles 1430 (2.) Special findings; special verdict 1432 (3.) Separation of the jury; sealed verdict 1433 (4.) Amending a verdict; directing a new or additional verdict 1434 V. Trial by a judge without a jury 1434 Trial justice. [See Justice of the Peace.] TROVER [AND ACTION OF TORT HERETOFORE KNOWN AS TROVER] 1435 I. When the action will or will not lie 1435 (1.) General principles 1435 (2.) The plaintiff's title 1437 (3.) Conversion generally 1438 (4.) When a demand is or is not necessary 1439 II. Pleadings; proceedings; evidence 1440 Truant officer. [See School, art. 30,] TRUST; USE 1441 I. General rules 1441 (1.) Statute of uses; estate of trustee and cestui aue trust 1441 (2.) Validity.: 1442 (3.) Notice; effect thereof as to a third person 1443 II. Creation and evidence 1445 Ixii TABLE OF CONTENTS. Trust, etc., continued. (1.) Declaration or admission, written or oral 1445 (2.) Precatory words 144° (3.) Trust resulting by implication of law 144° (4.) Trust in invilum 1447 III. Interpretation 1448 (1.) Geneial principles 1*4° (2.) Trust for accumulation 1448 (3.) Certain other express trusts 1448 TV. Extinguishment; modification 1450 (1.) Expiration; fulfilment; lapse 1450 (2.) Merger; revocation; modification 1451 TRUSTEE AND CESTUI QUE TRUST 1452 I. Appointment of trustee; tenure; security 1452 (1.) Appointment; qualification 1452 (2.) Resignation; removal 145o (3.) Bond 1454 II. Trustee's powers, rights, duties, and liabilities ■ 1455 (1.) General principles • 1455 (2.) Sale or other disposition of trust property 1456 (3.) Management of the trust estate 1457 (4.) Dealings for his own benefit with the estate, or the cestui que trust 1458 (5.) Compensation 1458 (6.) Accounting 1459 III. Rights and remedies of the cestui que trust 1460 TRUSTEE PROCESS 1462 I. Beginning and maintaining the proceedings 1463 (1.) Who may and who may not be charged 1463 (2.) Return and service 1464 (3.) Failure to summon trustee; effect of his discharge 1464 H. Trustee's appearance and answer 1465 (1.) Form and contents of answer; additional answer; interrogatories 1465 (2.) Effect of answer; additional evidence 1466 (3.) Penalty for a false answer 1466 HI. What may and what may not be attached 1467 (1.) General rules 1467 (2.) Wages or other earnings 1469 (A.) Generally 1469 (5.) Rulings under St. 1865, Ch. 43, §§ 2, 3; P. S., Ch. 183, § 39 1471 (C.) Statutory exemption; exception as to necessaries 1471 (3.) Where the trustee is an executor or administrator 1471 (4.) Where there are mutual demands between defendant and trustee 1472 (5.) Where the trustee has paid over 1473 (6.) Where the trustee has given a negotiable security 1473 (7.) Money, etc., received as an officer 1474 (8.) Money, etc., contingently due 1474 (9.) Where judgment taken or action pending against trustee 1475 (10.) Property assigned to trustee unlawfully, fraudulently, or in trust for creditors. 1475 TV. Adverse claims to goods or credits in trustee's hands 1477 (1.) Rights of the defendant's assignee 1477 (2.) Admission of an adverse claimant; proceedings; evidence 1478 (3.) Dissolution of the attachment by adverse claimant's bond 1478 V. Judgment; effect thereof; remedies thereupon 1479 (1.) Judgment for or against trustee 1479 (2.) Effect of judgment 1479 (3.) Scire facias 1480 TURNPIKE 1481 Tything-man. [Duties of. Peace v. Atwood, 13 324. Indictment for refusing to answer. Comm. v. Caldwell, 14 330.] u. Ultra vires. [See Corporation, VI, (1).] Undue influence. [See Will, I, (5).] United States. [See Bank, II; Constitutional Law, H] United States courts. [See District Court of the United States; Jurisdiction, II; Removal of Cause, II; Supreme Court of the United States ] TABLE OF CONTENTS. bdii United States customs. See Customs, etc.] United States internal revenue. [See Internal Revenue.] UNITED STATES FORCES {military and naval) 1482 I. Enlistment; discharge; desertion 1482 II. Town bounties; contracts to fill quotas 1482 United States officers. [See Customs, etc.; Post Office.] UNITED STATES SURPLUS REVENUE 1483 Unlawful amusement. [See Amusement, II; Betting, etc.] Unsound mind, person of. [See Lunatic; Will, I, (1) ] Urinal. [See Town and City, arts. 424, 425.] USAGE; CUSTOM 1484 I. When invalid 1484 II. When valid 1485 III. Evidence to establish or destroy it I486 Use. [See Trust and Use.l Use and occupation. [See Landlord and Teaant, VII. (3) ] User. [See Adverse Possession, II; Easement, II, (1); II, (2); Prescription ] USURY 1487 I. What constitutes or does not constitute usury 1487 II. Effect of usury 1488 (1 ) Upon the security; by or against whom it may or may not be alleged 1488 (2 ) Upon subsequent securities for the same debt 1489 (3 ) Statutory forfeiture and penalty 1489 III. Form of remedy; parties; pleadings, proceedings; trial 1489 (1 ) Action to recover back unlawful interest 1489 (2.) Defence of usury 1490 Uttering counterfeit money or forged instrument. [See Forgery and Counterfeiting.] Vagrant ; vagabond. [See Idle and disorderly Person.] VARIANCE 1490 I. General rules; when the objection is or is not maintainable . 1490 II. Taking and obviating the objection „ , 1493 III. Rulings specially relating to criminal causes 1494 Veal, unwholesome. [See Indictment, VIII, (69); Provisions.] VELOCIPEDE 1494 VENDOR AND YENDEE [OF REAL PROPERTY] 1494 I. The contract 1494 (1 ) Sufficiency; validity, effect 1494 (2.) Interpretation 1495 II. Performance; breach > 1495 (1.) As respects the vendor's title . 1495 (2.) In other particulars 1496 (3. ) Waiver of performance ; excuse for nonperformance « 1497 III. Remedies 1498 Venue. [See Indictment, II, (l);Practice, I, (2).] Verdict. [See Trial, IV.] VERMONT 149t Vermont and Massachusetts railroad. [See Corporation, X,] Vessel. [See Lien, III; Shipping.] Vested and contingent interests. [See Devise and Bequest, III, (6); Trust, III, (3).] Vested rights. [See Constitutional Law, III, (4); Statute, II, (3); III, (2).] Victualler, common. [See Intoxicating Liquors.] View. [See Trial, III, (3).] Violating grave. [See Burial, III.] lxiv TABLE OF CONTENTS. Voice. [Identification by. See Evidence, arts. 1035 to 1037 ] VOID AND VOIDABLE 1499 Voir dire. LSec Jur y u < 3 )' Perjury, art. 8: Witness, arts 19, 97] Voluntary association [See Benevolent Association, Joint Stock Company; Loan and Fund Association Religious Association.] Voluntary conveyance. | See Fraud III (4)] Volunteer [See Militia III- United States Forces.] Voter, voting:. [See Elections and Electors.] w. Wager [See Betting and Gaming ] Wages. [See Assignment, IT; Assumpsit, III. (4); Insolvent, arts. 246 to 248; Master and Servant I; Railroad. Ill, (2); Shipping, II; Trustee Process, IIL (2).] WAIVER 1499 Wall [See Fence; Party Wall.] Wantonness. [See Lewdness.] War. [See Alien; Bill of Lading, art 31; Contraband of War; Contract, arts. 166, 206, 404, Jurisdiction, II Insurance, V (1); V (6); V. (7)- V, (9); V, (10); V, (15); Militia, III, (5); United States Forces.] Warehouseman. [See Bailment, II, (1). Carrier, I, (7) Lien I.] Warrant. [See Indictment, VII; Practice, II, (1).] Warranty [See Covenant, II, (3)- Estoppel, II, (2); Sale, III.] WASTE 1501 Water, percolation of. [See Land Owner; Negligence, art. 120; Town, etc., VI, (4); Water Course, art. 47.] WATER COURSE; SURFACE WATER 1502 I. Surface water 1502 II. Natural water course 1502 (1) Rights and liabilities of landowners c^,.. 1502 (2), Navigable stream; tide water. ............ 1504 III Artificial water course 1504 Water works: water rates. [See Town, VI, (4).] Way. [As to public ways of all descriptions, including " private ways," so called, laid out by the public authorities, see Highway. As- to a private right of way over anoth- er's property, see Easement.] Weigher of vessels. [See Shipping, arts. 65, 66.] WEIGHTS AND MEASURES 1505 Well. [See Deed, arts. 198, 252; Easement, art. 195; Joint Tenants, art. 58; Land Owner art. 26.] Western Railroad corporation. [See Corporation, X.] Whaling voyage. [See Shipping, passim; Trustee Process, arts. 155, 156.] WHARF; DOCK 1505 WIDOW 1506 I. General rules as to a widow's rights 1505 II. Rights of an intestate's widow 1507 III. Widow's election between a provision, and her dower or distributive share 1507 (1. ) When she is, or is not, required to elect " [ 1507 (2.) Time, mode, and effect of election '....'. 1508 Wife. [See Husband and Wife.] WILL 1509 I. Execution; revocation; validity 1509 (1.) Validity generally; testamentary capacity !!!!"!!! 1509 (2 ) Mode of execution; attestation; gift to witness !!!'.,.". .', 1510 (3.) Revocation; revival ,..'.'. '.'.",'. 1511 (4.) Codicil ; separate paper !!!'.!!. .'."."'" 1513 (5.) Undue influence^ fraud; mistake !."!."!!!."."!.".'.'.".".!!! 1513 II- General rules of interpretation 1513 TABLE OP CONTENTS. l*v Will, continued. III. Probate; effect thereof 1515 ll.) Effect and necessity of probate 1515 (3.) Proceedings upon application for probate; evidence, appeal 1515 Window. [See references under Light and Air. J WISCONSIN 1516 WITNESS 1516 I. Witness's general rights and liabilities, procuring his attendance 1517 (1.) General rights and liabilities 1517 (2.) Subpoena, subpoena duces tecum 1517 II. General rules as to a witness's competency and credibility 15l8 (1.) Age; understanding; religious belief 151^ (2.) Conviction of crime 15lS (3) Husband or wife 15lt> (4 ) Interested witness 1520 (5.) Other questions of competency and credibility 152 2 (6.) Taking the objection; determination thereof 1522 III. Party to the record 1523 (1.) Rulings before St. 1856. Ch. 138 1523 (2.) Exceptions in the statutes between St. 1856, Ch. 188, and St 1870, Ch. 393, P. S.. Ch. 169, § 18 1523 (3 ) Party to a civil cause, under the existing statute 1524 (4.) The defendant in a criminal cause 1525 IV. Discrediting and sustaining a witness 1526 (1 .) General principles, cross examination 1526 (2.) Discrediting a witness by the party calling him 1526 (3.) Attacking a witness's reputation or character 1527 (4.) Proof of a witness's inconsistent acts or statements 1528 (5.) Disproving a witness's testimony 1529 (6.) Sustaining or corroborating a witness 1529 V. Other matters relating to a witness's testimony 1530 (1 . ) Swearing a witness; interpreter 1530 (2.) Direct examination ' _ _ 1530 (3.) Cross examination ] _ \ , 1531 (^4.) General principles , ' , ' 1531 (B.) Miscellaneous rulings, as to questions and answers 1531 (ft) When the cross examining party is concluded by the witness's answer. . . 1532 (4.) Re-examination 1533 (5.) Refreshing a witness's memory '.!.!!!!!!' 1533 (6.) Attorney; counsel; physician; surgeon; clergyman. ....[......'.. 1534 WOMAN ./" 1534 Worcester. [See Highway, art. 470; Mandamus, art. 14; Railroad, arts 21 22- Town and City.] Work and labor [See Assumpsit, III, (4); Insolvent, arts. 246 to 248; Master and Ser vant, I, Railroad, III, (2); Trustee Process, III, (2).] WRECK .- 1534 WRIT 1535 I. General rules 1535 II. Sufficiency; indorsement 1535 (1.) Seal; teste: direction; contents !.!.'!!!.'!."!!."'!! 1535 (2.) Indorsement; indnrser's liability .........".'.....'...'. 1536 (3. Proceedings to enforce the indnrser's liability 1537 III. Service; return of service j I537 IV. Particular writs iggg Y. Year. [See Time,] Vol. I-i DIGEST. A. Abandonment. [As to abandonment to the insurer of a vessel, or the cargo or freight of a vessel, see Insurance, VI, (11). As to the abandonment of a levy or seizure, see At- tachment, II, IV ; Execution, I, (2). As to the ex- tinguishment of an easement by abandonment, etc., see Easement, III, (1); Highway, III, (6); Mill and Mill Dam, I. As to the abandonment of its fran- chises by a corporation, see Corporation, VIII, IX. As to abandonment of a husband, wife or child, see Divorce, II, (3); Husband and Wiee, II, VI: Pa- rent and Child, I, (2); I, (3); Poor, I, (2); I, (3).] Abatement and survivor of an ac- tion or cause of action. I. Matter affecting a Party's Eight or Liability. (1.) Abatement by death ; what actions or causes of action do or do not survive. (2.) Abatement by other extinguishment, or by change of a party's right or liability. (3. ) Abatement by disability at the commence- ment of the action. (4.) Abatement by pendency of another ac- tion. II. Error or Defect nsr the Commence- ment of the Action. (1.) Defective writ or defective service. (2.) Defect or excess of parties. (3.) Other errors and defects. III. Interposing an Objection in Abate- ment. (1.) "When and by whom interposed; waiver. (2.) Answer or plea in abatement, and judg- ment thereon. (3.) Other modes of interposing matter in abatement. [As to abatement of a nuisance, see Nuisance, I, (2); of a legacy, see Advancement; Devise and Bequest, IV; of an indictment, see Indictment, IV, (6); o* a tax, see Taxation, VI, (4).] I. Matter affecting a Party's Eight or Liability. (1.) Abatement by death; what actions or causes of action do or do not survive. 1. By statute, trespass guare cltmsum survives to a surviving plaintiff, or, if there is but one plaintiff, or the injured person dies before suit brought, to his executor. Boyntont). Eees, (9 P.) 26 528; Wilbur v. Gilmore, (21 P.) 38 250; Goodridge v. Eogers, (22 P.) 39 495. 2. An action for breach of promise to marry does not survive, at common law or under the statute. Qu. , whether it survives if special damage has been incurred. Stebbinsa. Palmer, (IP.) 18 71; Smith v. Sherman, (4 C.)- 58 408; Norton v. Be- wail, 106 143; Chase v. Fitz, 132 359. 3. An action for a libel or for malicious prose- cution does not survive, even where special damage has been incurred. Nettleton v. Dinehart, (5 C.) 59 543. Walters ». Nettleton, (5 C.) 59 544; Cum- mings i). Bird, 115 346; Norton v. Se- wall, 106 143; Conly v. Conly, 121 550. 4. Debt for a penalty for cutting, etc. , trees, under St. 1817, Ch. 173, does not survive. Little b. Conant, (2 P.) 19 527. 5. An action of trover survives by statute; alitor at common law. Barnard v. Harrington, 3 228. But trover for converting title deeds, survived at common law. Towle e. Lovet, 6 394. 6. An action of replevin survives by statute : at common law it abated by the defendant's, but not by the plaintiff's death. Pitts v. Hale, 3 321; Mellen v. Bald- win, 4 480. 7. An action against a sheriff for not returning an execution, survives to the plaintiff's executor. Paine t>. Ulmer, 7 317. And, by statute, an action against a sheriff for malfeasance or nonfeasance of himself or his deputy, survives against his executor; but such an action does not survive against the executor of the deputy. Cravath i\ Plympton, 13 453. See, also, Mellen v. Baldwin, 4 480. 8. An action by a judge of probate upon an official bond does not abate by his death or re- signation, if continued by his successor. Cutts v. Parsons, 2 440; Holtenw. Cook, 12 575. See, also, Stevens «. Hay, (6 C.) 60 239. 9. An action against an assignee of a bankrupt does not survive against his executor. Hall v. Cushing, 8 521. 10. At common law an action does not survive against the executor of a joint contractor; but by statute it survives, and, therefore, the creditor cannot go into equity to enforce the demand. Foster v. Hooper, 2 572; Curtis*. Mans- 2 ABATEMENT, I, (2); I, (3). field, (11 C.) 65 152; Sampson s. Shaw, 101 145; New Haven, etc., Co. s. Hay- den, 119 361. 11. A right of action against a deceased part- ner in favor of the survivor to an accounting survives against his executor. Wilby s. Phinney, 15 116;" Sparhawk s. Russell, (10 Met.) 51 305. 12. An action for injury to the person through an obstruction of, or defect in, a highway sur- vives by statute, but not at common law. Thayer s. Dudley, 3 296; Demond s. Boston, (7 G) 73 544; Osgood s. Lynn, 130 335 13. By statute an action of tort against a mill owner, obstructing the flow of water by main- taining his dam at too great a height, survives the death of either party. Browns. Dean, 123 254. See, also, Sumner s. Tileston, (4 P.) 21 308. 14. The same rule applies to a complaint un- der the mill act for flowing land. Tyler s. Mather, (9 G.) 75 177; Dar- ling s. Blackstone Man. Co., (16 G.) 82 187. 15. But at common law an action for divert- ing a water course died with the plaintiff. Holmes ». Moore, (5 P.) 22 257. 16. By statute, but not at common law, an ac- tion for assault and battery survives. Brown «. Kendall, (6 C.) 60 292. 17. An action for fraudulent representations as to a person's credit or property, whereby one was induced to sell him real or personal prop- erty, does not survive the death of either parly, at common law or by statute. Qu., as to an action for fraudulent acts, which induced a court to set aside a verdict. Read s. Hatch, (19 P.) 36 47; Leggate «. Moulton, 115 552. 18. An action for falsely answering in a trus- tee process does not survive. Stillman s. Hollenbeck, (4 A.) 86 391. 19. An action for deceit in selling poisoned grain, whereby the purchaser's horses were killed, does not survive to his executor at com- mon law or by statute. Cutting «. Tower, (14 G.) 80 183. 20. A stockholder's statutory liability for cor- poration debts does not survive against his g x p mi tor Child s. Coffin, 17 64; Ripley s. Samp- son, (10 P.) 27 371; Dane s. Dane Man. Co., (14 G.) 80 448; Bacon v. Pomeroy, 104 577. 21. A scire facias against bail survives, and the executor may surrender the principal. Wheeler s. "Wheeler, 7 169. 22. A right of action under St. 1846, Ch. 167, for supplying Boston with water, survives, if the land owner dies before filing his petition. Moore v. Boston, (8 C.) 62 274. 23. By the existing statute, a real action does not abate by the death of either party. As to the rule at common law, and under the statute in force before the enactment of the existing sta- tute, see Thomas v. Smith, 2 479; Mitchells. Starbuck, lO 5; Cuttss. Haskins, 11 56; Holmes v. Holmes, (2 P.) 19 23- Alleys. Hubbard, (19 P.) 36 243; Brown s. Wells, (12 Met.) 53 501; Drake s. Curtis, (1 C.) 55 395. 24. As to abatement of a writ of review, see Thayer ». Dudley, 3 296; Woodward v. Skolfield, 4 375; Otis s. Bixby, 9 520. 25. A proceeding under the statute by a land- lord against his tenant, does not abate by the landlord's death; but his heir or devisee, or a purchaser, may come in and prosecute. , Sacket s. Wheaton, (17 P.) 34 103. 26. Forcible entry and detainer, in favor of one having a life estate only, abates by the com- plainant's death. Brown v. Kendall, (13 G.) 79 272. So where brought in favor of a tenant at will. Ferrin s. Kenney, (10 Met.) 51 294. 27. Under G. S., Ch. 127, § 1; P. S„ Ch. 165, § 1, an action lies in favor of the executor against a person causing the decedent's death by negligence, if the decedent survived the injury for any appreciable time, however short, but not if he was instantly killed. And the burden of proof is upon the plaintiff, to show that death was not instantaneous. Hollenbeck s. Berkshire R. R. , (9 C.) 63 478; Kearneys. Boston and W. R. R., (9 C.) 63 108; Bancrofts. Boston and W. R. R., (11 A.) 93 34; Norton v. Sewall, 106 143; Kennedy s. Standard Sugar Refinery, 125 90; Moran s. Hollings, 125 93; Corcoran s. Boston and A. R. R., 133 507; Nourse s. Packard, 138 307. 28. See, as to the statute of another state, Richardson s. New York Central R. R., 98 85. [As to the statutes giving a right of action in case of such death, see references under Death.] C2.5 Abatement by other extinguish- ment, or by change of a party's right or liability. 29. At common law the marriage of a female plaintiff, or co-plaintiff, abated an action, although she sue J as executrix; aliter now by statute. Haines s. Corliss, 4 659; Oxnard s. Kennebeck Purchase, 10 179; Swan s. Wilkinson, 14 295; Newell s. Marcy, 17 341. 30. At common law the resignation, pendente lite, of a trustee, plaintiff or co-plaintiff, abated an action; aliter now by statute. Adams s. Leland, (7 P.) 24 62. 31. A complaint by two landlords against a tenant, under St. 1825, Ch. 89, does not abate by a transfer of the interest of one to the other. Coburn v. Palmer, (8 C.) 62 124. 32. A proceeding to recover land against a tenant by sufferance, under P. S., Ch. 175, does not abate in consequence of the extinguish- ment of the plaintiff's title, by foreclosure of a mortgage, and the bringing of an action by the purchaser against the tenant. Hooton s. Holt, 139 54. C3.) Abatement by disability at the com- mencement of the action. 33. An action by an infant in his own name is abatable; but not when brought by a next friend, although he has a guardian by nature. Trask v. Stone, 7 241; Blood v. Har- rington, (8 P.) 25 552. ABATEMENT, I, (4); II, (1), (2). 34. The objection of the plaintiff's disability by infancy or coverture can be taken only by plea in abatement. Hayden 0. Attleborough, (7 G.) 73 338; Smith v. Carney, 127 179. 35. An action brought by an alien enemy is abatable; but if the plaintiff becomes such after action brought, the action is only suspended. Sewall Lee, 9 31:3 Martin v. Woods, 9 377; Ainslie v. Martin; 9 454; Hutch- inson v. Brock, 11 119, Levine v. Taylor, 12 8. 36. Mere alienage of both parties is not ground of abatement, ■ although the action is upon a contract made abroad. Rea v. Hayden, 3 24; Barrell v. Benja- min, 15 344; Roberts 0. Knights, (7 A.) 89 449. 37. As to an Indian's disability to sue in his own name before St. 1869, Ch. 463, see Jaha o. Belleg, 105 208. (4.) Abatement by pendency of another action. 38. Pendency of another action in this state between the same parties for the same cause is pleadable in abatement, although other causes are joined in the second action. Buffum «. Tilton, (17 P.) 34 510; Mor- ton v. Sweetser, (12 A.) 94 134. 39. But not where the parties are not the same, although the defendant is summoned as trustee of the plaintiff in the second action Winthrop ®. Carlton, 8 456. 40. Or where the actions are different, as a libel for divorce and a libel for separation. Stevens v. Stevens, (1 Met.) 42 279. 41 . Pendency of an action, against a surviving joint and several debtor, is not pleadable in abatement of a subsequent action against the executor of the decedent. State Bank v. Welles, (3 P.) 20 15. 42. Pendency of an action in another state is not pleadable in abatement here. Newell 0. Newton, (10 P.) 27 470; Colt 0. Partridge, (7 Met.) 48 570. 43. Nor will it stay proceedings, until the court in the other state has determined the ac- tion there. Scott 0. Rand, 118 215 II. Eekoe or Defect in the Commence- ment op the Action. (1.) Defective writ or defective service. 44. A writ with a wrong seal is abatable. Hall 0. Jones, (9 P.) 26 446; Stevens v. Ewer, (2 Met.) 43 74; Poote v. Knowles, (4 Met.) 45 386; Brewer 0. Sibley, (13 Met.) 54 175. 45. So is a writ returnable in the wrong county. Day 0. Jackson, 5 237. 46. A writ not indorsed as required by statute is abatable. Gould 0. Barnard, 3 199; Robbins v. Hill, (12 P.) 29 569. 47. A writ will not abate because it is not directed to the officer who served it. Hearsey 0. Bradbury, 9 95. 48. For other defects, now cured by statute, for which writs were formerly abatable, see Grosvenors. Danforth, 16 74; Brown 0. Seymour, (1 P.) 18 32; Brigham v. Este, (2 P.) 19 420; Rathbone v. Rath- bone, (5 P.) 22 221; Boston Overseers «. Otis, (20 P.) 37 38. 49. A writ will not abate because served by one who is not an officer de jure, if he is officer de facto. Fowler v. Bebee, 9 231; Bucknam v. Ruggles, 15 180. 50. Nor for an alleged defect of service, if the return is sufficient. Slayton v. Chester, 4 478. 51. Nor because served upon a deputy sheriff by one who is also deputy of the same sheriff. Colby 0. Dillingham, 7 475; Brown- ing 0. Bancroft (5 Met. ) 46 88. 52. For other objections to the service of writ, as grounds of abatement, now cured by statute, see Woods. Ross, 11 271; Gages. Graf- fam, 11 181; Brewers. New Gloucester, 14 316; Thayer®. Ray, (17P.) 34 166. 53. Service only upon a defendant not liable to arrest is pleadable in abatement; but where a defendant is duly served here, he cannot object that other non-resident defendants were not served. Tappan 0. Bruen, 5 193; Call 0. Hag- ger, 8 423; Willington v. Stearns, (1 P.) 18 497. [For grounds of abatement where a trustee pro- cess is insufficiently served, see Trustee Process, I.] C2.) Defect or excess of parties. 54. Nonjoinder of plaintiffs in tort is plead- able in abatement, but nonjoinder of defendants is not. Hart 0. Fitzgerald, 2 509; Converse v. Symmes, 10 377; Thompson 0. Hoskins, 11 419; Buddington v. Shearer, (22 P. ) 39 4'27; Morley v French, (2 C.) 56 130; Call s. Buttrick, (4 C.) 58 345; Put- ney ®. Lapham, (10 C.) 64 232; Phillips 0. Cummings, (11 C.) 65 469; Sherman 0. F. R. Iron Works, (2 A.) 84 524; Sherman 0. F. R. Iron Works, (5 A.) 87 213; May 0. W. U. Tel. Co., 112 90. 55. But an objection of misjoinder of plain- tiffs may be first raised at the trial. Gerry 0. Gerry, (11 G.) 77 381. 56. As to nonjoinder of parties in a writ of right, see Dewey v. Brown, (2 P.) 19 387; Web- ster 0. Vandeventer, (6 G.) 72 428. 57. Nonjoinder of proper parties in an action on contract, or of trustees in a foreign attach- ment, is a ground of abatement only. Holmes v. Marden, (12 P.) 29 169; Scott 0. Shears, (9 C.) 63 504; Sheltou r. Banks, (10 G.) 76 401; Edleru Thomp- son (13 G.) 79 91; Canfield 0. Miller, (13 G.) 79 274; Sabin 0. Cooper, (15 G.) 81 532; Kendall 0. Weaver, (1 A.) 83 277; Simondss. Turner, 120 328. 58. And the objection is available, although the plaintiff has amended by striking out those whose absence is objected to. Wilson Nevers, (20 P.) 37 20; Bliss 0. Bliss, (12 Met.) 53 266. 59. Semble, that nonjoinder of plaintiffs in ABATEMENT, II, (3); III, (1). replevin is pleadable either in abatement or in bar. Hart ». Fitzgerald, 2 509; Fay v. Duggan, 135 242. (3.) Other errors and defects. 60. A writ in replevin will abate if the bond has only one surety, or a fixed sum is not named as the penalty; but not because the penalty is too great. Clap s. Guild, 8 153; Simonds b. Par- ker, a Met.) 42 508; Wolcott b. Mead, (12 Met.) 53 516; Case s. Pettee, (5 G.) 71 27;Clark». Conn. R. R.R.,(6G.) 72 363. 61. An action by a county, brought in that county, against a resident of another county is abatable. Lincoln ». Prince, 2 544. 62. The rule was formerly the same where the action was brought by an inhabitant. Hawkes v. Kennebeck, 7 461. 63. An action for a nuisance is not abated by the abatement of the nuisance. Call s. Buttrick, (4 C.) 58 345. 64. Ouster of the tenant in a writ of entry by one having a better title abates the writ, but the levy upon the property of an execution in favor of his creditor does not. Walcutt «. Spencer, 14 409; Eldridge v. Acocks, (2 P.) 19 319. 65. An action by a lessee against a tenant by sufferance does not abate by the expiration, pen- dente lite, of the plaintiff's estate, or his entering and taking possession. Blish s. Harlow, (15 G.) 81 316; King 1). Lawson, 98 309; Casey b. King, 98 503; Hebron Church B.Adams, 121 257. 66. An assignment, pendente lite, of a part- ner's estate under the insolvent laws does not abate an action by all the partners. Cunninghams. Munroe, (15 G.) 81 471. 67. An action commenced without authority will abate; but the plaintiff may prevent the abatement by ratification. This rule applies to an action by a public or private corporation, commenced by direction of an officer who had no power so to do. Commonwealth v. Hatch, 5 191; Rob- bins v. Hayward, 16 524; White v. Stan- wood, (4 P.) 21 380; Cleverly «. Whitney, (7 P.) 24 36; Adams Bk. b. Jones, (16 P.) 33 574; Stoneham School Dist. s. Rich- ardson, (23 P.) 40 62; Ashuelot M. Co. s. March, (1 C.) 55 507; Blackstone s. Taft, (4 G.) 70 250; Craig v. Twomey, (14 G.) 80 486. 68. But the court will not inquire further, if the action was directed by a competent officer de facto, to determine if he is such dejure. Granville Ch. Ass'n s. Baldwin, (1 Met.) 42 359. 69. For other formal defects, now cured by statute, for which actions were formerly abat- able, see Smith i). Bowker, 1 76; Hunt b. Whit- ney, 4 620; Moore s. Eames, 15 312. [For authorities relating to the abatement of an action, because it was brought in the wrong county, see Practice, I, (3).] III. Interposing an Objection in Aiute-- MENT. (1.) When and by whom Interposed; waiver. [See, also, ante, II, (2).l 70. Matter pleadable in abatement only fe waived in a case submitted upon agreed facts. Smith b. Carney, 127 179 ; Fay «. Dug- gan, 135 242. 71. A formal objection to the writ, including- the want of a seal or of an indorser, or to any of the papers accompanying the writ, must b& raised at the first term, and is waived by plead- ing to the merits. Whiting s. Hollister, 2 102; Livermora b. Boswell, 4 437; Gilbert v. Nantucket. Bank, 5 97; Chandler*. Smith, 14 313; Ripley D.Warren, (2 P.) 19 592; Simonds. v. Parker, (1 Met.) 42 508; Carpenter v. Aldrich, (3 Met.) 44 58; Foot «. Know- les,(4Met.) 45 386; Wolcott v. Mead, (12 Met.) 53 516; Brewer c.Sibley, (13 Met.) 54 175; Joyner v. Egremont Sch. Dist., (3 C.) 57 567; Jacques b. Sanderson, (8 C.) 62 27; Bacon b. Weston, (11 C.) 65 164; Lane B.Roberta, (3 G.) 69 514; Lathrop «. Bowen, 121 107; Boston & A. Railroad s. Pearson, 128 445. 72. The same rule applies to an objection to the service of the writ, or the failure to serve the same on other parties. Eaton B.Whitaker, (6 P.) 23 465; Brig- ham v. Clark, (20 P.) 37 43; Carlisle b. Weston, (21 P.) 38 535; Kittridge B.Ban- croft, (1 Met.) 42 508; Bartlett v. Rob- bins, (5 Met.) 46 184; Smiths. Robinson, (13 Met.) 54 165; Jacques v. Sanderson, (8C.) 62 271;LoomisB.Wadhams, (8G.) 74 557; Briggs b. Humphrey, (1 A.) 83 371 ; Lawrence s. Bassett, (5 A. ) 87 140. 73. But the objection is saved, if the defend- ant appears specially for the purpose of raising it. AmesB.Winsor, (19 P.) 36 247; Nye s. Liscombe, (21 P.) 38 263; Ricker b. Ger- rish, 124 367. 74. The same rule as to waiver applies to the objection that the action was brought without authority. Boynton b. Willard, (10 P.) 27 166. 75. Or that there is a nonjoinder of defend- ants jointly liable on contract. Leonard b. Speidel, 104 356. 76. The same rule applies to every defect of jurisdiction of the person; but want of jurisdie- tion of the subject matter is not thus waived. Seagrave s. Erickson, (11 C.) 65 89; Loomis b. Wadhams, (8 G.) 74 557. 77. Filing an affidavit of merits has the same effect. Cole b. Ackerman, (7 G.) 73 38; Whip- ple b. Rogerson, (12 G.) 78 347; Walpole b. Gray, (11 A.) 93 149. 78. A plea in abatement cannot be interposed after a plea in bar; but if seasonably pleaded, it. is not waived by a subsequent or simultaneous plea in bar, or an affidavit of merits. ClarkB.Conn.R.R.R.,(6G.) 72 363; Claflin b. Thayer, (13 G.) 79 459; Fisher b. Fraprie, 125 472; O'Loughlin s. Bird, 128 600. See, also, Pratt B.Sanger, (4 G.) 70 84; Hastings b. Bolton, (1 A.) 83 ABATEMENT, III, (2). 529; Morton v. Sweetser, (12 A.) 94 134; Machinists Bank d. Dean, 124 81. 79. The rule was formerly different. Burnham v. Webster, 5 266; PatteeD. Harrington, (11 P.) 28 231; Dana d. Staples, (21 P.) 38 208. 80. In general, a plea in abatement must be filed before a general imparlance, unless the mat- ter thereof has arisen since. Martin d. Commonwealth, 1 347; Wal- cutt v. Spencer, 14 409; Rathbone ». Rath- bone, (4 P.) 21 89; Coffin d. Jones, (5 P.) 22 61; Robbins o. Hill, (12 P.) 29 569: Bliss D. Bliss, (12 Met.) 53 266; GarrishD. Gary, (1 A.) 83 213. 81. As to the effect of the former rules and statutes, see Cleveland v. Welsh, 4 591; Camp- bell d. Stiles, 9 217; Thompson v. Hatch, (3 P.) 20 512; Dana v. Staples, (21 P.) 38 208; Colt d. Partridge, (7 Met.) 48 570; Pratt d. Sanger, (4 G.) 70 84. <2.) Answer or plea In abatement, and judgment thereon. 82. The following objections are available only by answer or plea in abatement, viz: Misnomer of any kind: Gilberts. Nantucket Bk., 5 97; Am. Bk. v. Doolittle, (14 P. ) 31 123; Coram. d. Lewis, (1 Met.) 42 151 ; Trull d. How- land, (IOC.) 64 109; Sears v. Columbian Ins. Co., (12 A.) 94 367; Coram. D. Fre- dericks, 119 199; Day d. Floyd, 130 488. Another action pending: Crease d. Babcock, (10 Met.) 51 525; Morton v. Sweetser, (12 A.) 94 134. Alienage: Sewall v. Lee, 9 363; Martin d. Woods, 9 377. Infancy of plaintiff: Smith v. Carney, 127 179. Coverture of plaintiff: Hayden».Attleborough,(7G.) 73 338. Non-coverture of plaintiffs, suing as husband and wife: Coombs d. Williams, 15 243. Objections to the form or service of the writ: Cooke v. Gibbs, 3 193; Brigham v. Clark, (20 P.) 37 43; Smith d. Dexter, 121 597. Discharge of the action, as distinguished from a release of the cause of action: Nelson d. Thompson, (7 C.) 61 502. 83. The following objections may be taken either in abatement or in bar: In replevin, joint ownership of the chattel in the plaintiff and another: Hart v. Fitzgerald, 2 509; FayD. Dug- gan, 135 242. In a real action, non-tenure or a disclaimer: Otis d. Warren, 14 239; Dewey d. Brown (5 P.) 22 238. Contra (over- ruled) : Keith d. Swan, 1 1 216. Nul tiel corporation: Plymouth Chr. Soc. u. Macomber, (3 Met.l 44 235; Greenwood d. Lake S. R. R, (10 G.) 76 373. That the action is premature: Benthall ». Hildreth, (2 G.) 68 288; Franklin Sav. Inst. «. Reed, 125 365. That a plaintiff suing as administrator is not legally such: Langdon v. Potter, 1 1 313; Plymouth Chr. Soc. v. Macomber, (3 Met.) 44 235. 84. In assumpsit a plea of non-joinder must name the other parties. Wilson v. Nevers, (20 P.) 37 20. 85. A plea in abatement to the jurisdiction must allege that another court has jurisdiction. Rea ii. Hayden, 3 24; Lawrence v. Smith, 5 332. , 86. A plea in abatement ought to conclude to the writ, but a conclusion to the writ and dec- laration is not fatal. Usley v. Stubbs, 5 280. 87. As to the form of pleas in abatement in particular cases, see: Non-residence in the county: Cleveland D.Welsh, 4 591; Hooper v. Jellison, (22 P.) 39 250. Another action pending: Clifford d. Cony, 1 495; Comm. D. Churchill, 5 174; Newell d. Newton, (10 P.) 27 470. Alien enemy: Parkinson d. Wentworth, 11 26; Hut- chinson d. Brock, 1 1 119. Ni n-tenure in a real action: Olis v. Warren, 14 239. Objection to service: Rathbone d. Rathbone (5 P.) 22 221. Disclaimer and non-residence in attachment: Guild v. Richardson, (6 P.) 23 364. 88. A general demurrer to a plea in abatement reaches defects of form therein, and the defend- ant cannot attack the declaration. Clifford v. Cony. 1 495. 89. Judgment for the plaintiff on a plea in abatement is final, if it tenders an issue of fact, triable by jury: if triable by the record only, or the issue is one of law, the judgment is to answer over. But by sta: ute, the court may, in any case, allow the defendant to answer over. Gage ». Graff am, 11 181; Boston Glass Man. d. Langdon, (24 P.) 41 49: Ocean Ins. Co. v. Portsmouth Railway, (3 Met.) 44 420; GoodD.Lehan, (8C.) 62 302; Fisher d. Fraprie, 125 472. 90. A defendant having leave to answer over, may file a demurrer. Young v. Gilles, 113 34. 91. By statute, decisions upon matters of abatement, either upon plea or upon motion, in- cluding rulings at the trial, are now conclusive. Browning «. Bancroft, (5 Met.) 46 88; Sawyer®. Pratt, (9 Met.) 50 170; Bartol d. Stanwood, (7 C.) 61 115; Morey v. Whittenton Mills, (8C.) 62 374; Willard aStone, (13 G.) 79 475; Blackmer D.Davis, (16 G.) 82 120; Richmond D.Whittlesey, (2 A.) 84 230; Stackpole v. Hunt, (9 A.) 91 539; Hamlini). Jacobs, 99 500; Bas- settD. Ho worth, 104 224; Parker v. Ken- yon, 112 264; Houghton ».Ware, 113 49; Wildes d. Marshall, 117 311; Ken- nedy d. Langdon, 123 193. 92. This rule extends to a case where a de- 6 ABATEMENT, III, (3)— ABORTION. fence pleadable In abatement was, by consent, taken by demurrer. Smith 11. Dexter, 121 597. 93. But a ruling improperly allowing a de- fendant to plead in abatement may be reviewed. Jaha v. Belleg, 105 208. See, also, Hastings «. Bolton, (1 A.) 83 529. y4. At the trial, the judge may permit a de- fendant, who has pleaded in abatement, and also upon the merits, to withdraw the former answer, and go to the jury upon the latter. Machinists Bank v. Dean, 124 81. 95. Judgment by consent for the defendant upon an answer in abatement is not a bar. Jordan v. Siefert, 126 25. 96. In assumpsit the executor of a deceased defendant may maintain a plea in abatement. Guild «. Richardson, (6 P.) 23 364. (3.) Other modes of interposing matter in abatement. 97. A motion to dismiss, for matter pleadable in abatement, lies where the defect is apparent upon the face of the record. Haywood s. Main, (18 P.) 35 226; Ames r.Winsor, (19 P.) 36 247; Nye v. Lis- combe,(21P.) 38 263; Simonds a. Parker, (1 Met.) 42 508; Amidown v. Peck, (11 Met.) 52 467; Richmond v. Whittlesey, (2 A.) 84 230; Houghton v. Ware, 113 49 ; Crosby ». Harrison, 116 114. 98. A coincidence of name between the plain- tiff, and the judge by whom the writ is tested, is not such an apparent defect. Prescott ». Tufts, 7 209. 99. Nor is a similar coincidence between the name of the plaintiff, and that of the trustee in a trustee process. Belknap v. Gibbens, (13 Met.) 54 471. 100. Nor is the interest of a county thus ap- parent in an action by its treasurer upon an official bond of the clerk of the court of sessions. Gage v. Gannet, 10 176. 101. Where want of jurisdiction or a substan- tial defect in the writ appears upon the record, the court ought to dismiss the proceedings ex proprio molu. Hart v. Fitzgerald, 2 509: Tingley v. Bateman, lO 343; Osgood «. Thurston, (23 P.) 40 110. 102. Whenever it is necessary to resort to any extrinsic evidence, to establish any part of the objection, a motion will not lie, and the defend- ant must plead; although the proof must estab- lish a negative, and relates to matters appearing upon the record. Davis ■». Marston, 5 199; Mitchell v. Starbuck, 10 5; Rathbone v. Rathbone, (4 P.) 21 89; Kittridge v. Bancroft, (1 Met.) 42 508; Stevens v. Ewer, (2 Met.) 43 74; Nash v. Brophy, (13 Met.) 54 476; Lincoln v. Taunton Copper Co., (11 C.) 65 440; Haynes ». Saunders, (11 C.) 65 537; Richmond ». Whittlesey, (2 A.) 84 230; Hobbs v. Dane M. Co., (5 A.) 87 581; Obsorne. Osborn, 114 515; Crosby v. Harrison, 116 114; Smith v. Dexter, 121 597. AMuction. ISee Bawdy-House and Prostitution: Kid- sapping.] Abortion. 1. Under the present statute, an indictment for an attempt to procure a miscarriage, will lie, although the woman was not pregnant. Comm. v. Taylor, 132 261. 2. And an indictment for procuring a mis- carriage will lie, if the woman was pregnant, although not quick with child. Aliter at com- mon law. Comm. v. Bangs, 9 387; Comm. v. Parker,(9Met.) 50 263; Comm. e. Wood, (11 G.) *77 85. 3. But semble, not if the fcetus was dead. Comm. ». Wood, (11 G.) 77 85. 4. Semble, that pregnancy ceases when the child comes forth, although the umbilical cord is intact, and the afterbirth not removed. Comm. «. Brown, (14 G.) 80 419. 5. Violence upon a woman without her con- sent, with intent to procure miscarriage, is an aggravated assault, indictable at common law. Comm. v. Parker, (9 Met.) 50 263; per Shaw, Ch. J., p. 265. 6. The woman's consent, or a desire to shield her from disgrace, is not a justification. Comm. «. Wood, (11 G.) 77 85; Comm. r>. Snow, 116 47. 7. The woman is not deemed an accomplice; but the jury may property be instructed that her connection with the crime affects her credi- bility. Comm. v. Wood, (11 G.) 77 85; Comm. v. Boynton, 116 343; Comm. v. Brown, 121 69. 8. As to the sufficiency of the foundation for affecting the defendant with the acts of others, Comm. v. Brown, (14 G.) 80 419. 9. Declarations of the woman, before or after the time of the alleged commission of the offence, unaccompanied by any act, are not ad- missible in evidence, although she has died of the operation. Comm. v. Felch, 132 22. 10. But her expressions of pain and weakness, immediately after leaving the place where it is alleged that the operation was performed, are admissible in connection with other evidence. Comm. v. Fenno, 134 217. 11. Evidence that the defendant, five months previous to the commission of the offence, had an instrument adapted to the purpose, is com- petent. Comm. v. Blair, 126 40. 12. Evidence that the woman, before going to the defendant, knew that her mother and the defendant had arranged to have the operation performed, is admissible. Comm. v. Holmes, 103 440. 13. Evidence as to the woman's health and spirits, and stains upon her bedclothes a month afterwards, is competent. Comm. D.Wood, (11 G.) 77 85. 14. For the sufficiency of the proofs to sus- tain a verdict of guilty in particular cases, see Comm. v. Thompson, 108 461; Comm. v. Snow, 116 47; Comm. v. Brown, 121 69; Comm. v. Drake, 124 21; Comm. v. Adams, 127 15; Comm. v. Corkin, 136 429. ABSCONDING DEBTOR— ACCESSOEY. [As to an action by the administrator of a prema- turely delivered child, tor causing the miscarriage by negligence, see Person.] Absconding debtor. [See Trustee Process.] Absence. [Presumption of death from, see Evidence, IV,(5); effect of .upon the statute of limitations, see Limita- tion, VI, (1).] Absentee. 1. For various rulings under the act of April 13, 1799, entitled "An act confiscai ing the estates of certain persons commonly called absentees," see Martin v. Comm.. 1 347; Kilham v. Ward, 2 236; McNeil v. Bright, 4 282; Sewall ».Lee, 9 363; Gilberts. Bell, 15 44; Greenougha Welles, (10 C.) 64 571. [See, also, Conspiracy.] Abnse of female child. [See Bape.] Abuse of process. ISee Attachm ent, I, (6) ; Ma t-icious Prosecution.] Acceptance. [See Bill of Exchange and Promissory Note, I, (7).] Accession. [See Alluvion ; Confusion and Accession of Chattels; Watercourse.] Accessory and accomplice. 1. All participators in a misdemeanor are principals; there can be an accessory in a felony only. Comm. v. Macomber, 3 254; Comm. v. Barlow, 4 439; Comm. v. Drew, (3 C.) 57 279; Comm. v. Ray, (3 G.) 69 441; Comm. v. Gannett, (1 A.) 83 7. 2. In a felony the immediate perpetrators are principals in the first degree; those who were actually or constructively present, but only aid- ing and abetting, are principals in the second detrree. Comm. v. Knapp, (9 P.) 26 496. 3. A conspiracy to commit the crime is not per se a constructive presence of a conspirator actually absent. Comm. v. Knapp, (9 P.) 26 496; Comm. r. York, (9 Met.) 50 93. 4. In murder, all present aiding and abetting are principals in the first degree. Comm. v. Chapman, (11 C.) 65 422. See, also, Comm.«. Knapp, (9 P.) 26 496. [As to aiding, etc., a suicide, see Suicide.] 5. By statute, an accessory may be tried and convicted, although the principal has not been convicted, and is not amenable to justice; but the contrary rule held at common law, so that if the principal died before conviction, the acces- sory could not be tried. Comm. v. Andrews, 3 126; Comm. v. Phillips, 16 423; Comm. v. Knapp, (10 P.) 27 477; Comm. v. York, (9 Met.) 50 93. 6. Since the principal is punishable only in the United States courts, an indictment will not lie in a state court, against an accessory to an embezzlement by an officer of a national bank. Comm. v. Felton, lOl 204. [As to the form and sufficiency of the Indictment, see Indictment, VIIE , (3).] 7. By statute, one who procures a felony to be committed here, by letters written elsewhere, is indictable as an accessory in the county where it was committed. Comm. v. Pettes, 114 307. 8. Circumstances from which aiding and abet- ting may be inferred in a particular case. Comm. v. Goodwin, 122 19. 9. Whether a witness is an accomplice is gen- erally a question for the jury. An admission at the trial that he is such, will conclude the party making it; but an argument based upon that assumption will not. Comm. v. Desmond, (5 G.) 71 80; Comm. d. Elliot, HO 104; Comm. v. Ford, 111 394; Comm. v. Glover, 111 395. 10. A purchaser of intoxicating liquor, un- lawfully sold, who purchased for the purpose of prosecuting the seller, is not an accomplice, within the rule relating to corroboration. Comm. v. Willard, (22 P.) 39 476; Comm. v. Kimball, (24 P.) 41 366; Comm. i!. Downing, (4 G.) 70 29; Comm. v. Whitcomb, (12 G.) 78 126; Comm. v. Graves, 97 114. [That a woman upon whom an abortion is com- mitted is not an accomplice, see Abortion, Art. 7.] 11. A jury may convict upon the uncorrob- orated testimony of an accomplice. But it is the duty of the court to advise an acquittal, if there is no corroboration. Comm. v. Bosworth, (22 P.) 39 397; Comm. v. Brooks, (9 G.) 75 299; Comm. v. Price, (10 G> 76 472; Comm. v. Scott, 123 222. 1 2. If goods are stolen in one county, and brought into the county where the indictment is found, the testimony of an accomplice as to the original taking, and also as to acts in the latter county, is corroborated by the testimony of others as to the original taking. Comm. v. Hayes, 140 366. 13. The corroborating testimony must be ma- terial to the issue, and must tend to connect the accused with the crime; otherwise its admission is the subject of an exception. ACCIDENT— ACCORD AND SATISFACTION. Comm. e. Bosworth, (22 P.) 39 397; Comm. v. Holmes, 127 424. 14. Whether the accomplice confessed his guilt voluntarily, or upon inducements by an officer, is material upon the question of corrob- oration. Comm. ■». Bosworth, (22 P.) 39 397; Comm. v. Ackert, 133 402. 15. It is not essential that the accomplice should have testified to the matter, respecting which the corroborating testimony is given. Comm. ti. Savory, (10 C.) 64 535; Comm. v. O'Brien, (12 A.) 94 183. 16. As to the sufficiency of corroborating tes- timony in particular cases, see Comm. v. Bosworth, (22 P.) 39 397; Comm. ■». Larrabee, 99 413; Comm. v. Elliot, 110 104; Comm. ■». Snow, 111 411; Comm. v. Holmes, 127 424; Comm. v. Hayes, 140 366. Accident. [See Equity Jurisdiction, II, (13).] Accident insurance. [See Insurance, II J Accord and satisfaction. [See, also, Composition; Payment, I.] 1. Payment by a debtor and receipt by the creditor of part of a sum due and payable, in satisfaction of the whole, and giving by the creditor a receipt in full for the debt, is not a bar to an action for the balance. Hart v. "Waterhouse, 1 433; Brooks v. White, (2 Met.) 43 283; Twitchell e. Shaw, (10 C.) 64 46; Harriman v. Harri- man, (12 G.) 78 341; Grinnell v. Spink, 128 25; Lathrop «. Page, 129 19. 2. But such a payment and receipt, before the maturity of the whole or a part of the debt, is a good accord and satisfaction, and so a bar. Goodnow v. Smith, (18 P.) 35 414; Brooks u White, (2 Met.) 43 283; Bo w- ker v. Childs, (3 A.) 85 434. 3. So if made in settlement of a disputed, un- certain, or unliquidated claim. Medway v. Milford, (21 P.) 38 349; Barlow v. Ocean Ins. Co., (4 Met.) 45 270; Tuttle v. Tuttle, (12 Met.) 53 551; Small v. Sumner, (6 G.) 72 239; Leach v. Pobes, (11 G.) 77 506; Flint v. Hub- bard, il A.) 83 252; Ken- v. Lucas, (1 A.) 83 279; Hamilton Woollen Co. v. Good- rich, (6 A. ) 88 191 ; Barry v. Goodrich, 98 335; Simmons v. Almy, 103 33; Kiggs v. Hawley, 116 596. 4. Receipt by a creditor of a third person's note, check or other security, for a less amount, in full satisfaction, is a good accord and satis- faction, and so, in the absence of fraud, is a third person's deed, although he had no interest in the property. Heed v. Bartlett, (19 P.) 36 273; Brooks v. White, (2 Met.) 43 283; Caswell v. Fellows, HO 52; Guild v. Butler, 127 386. 5. An agreement to receive a deed or other thing in satisfaction is a defence if fulfilled, but such an agreement, if not fully executed, is not a defence. Tuckermana. Newhall, 17 581; Howe i). Mackay, (5 P.) 22 44; Makepeace v. Harvard College, (10 P.) 27 298; Spring uLovett, (IIP.) 28 417; Peck v. Davis, (19 P.) 36 490; Costello v. Cady, 102 140. 6. An executory agreement to discharge a disputed unliquidated demand by the debtor's note, is not a bar, although the note was ten- dered. Clifton v. Litchfield, 106 34. 7. An executory agreement, even if under seal, to receive from the debtor certain payments in full of a larger debt, is not a defence to an action for the unpaid balance. Dehon v. Stetson, (9 Met.) SO 321; Blake v. Blake, 110 202; Curran v. Rummell, 118 482; Lord v. Bigelow, 124 185. 8. A settlement of mutual demands under a policy of marine insurance is a bar to an action on the policy, although the vessel had then been lost, and both parties were ignorant of the fact. Soper v. Atlantic Ins. Co., 120 267. 9. A settlement in full satisfaction of a per- sonal injury, received through the negligence or misconduct of one, is a bar to an action against, another, who would otherwise have been liable for the same injury. Goss v. Ellison, 136 503. See, also, Joint Liability, III; and Brown v. Cam- bridge, (3 A.) 85 474; Stone v. Dickin- son, (5 A.) 87 29; Stone v. Dickinson, (7 A.) 89 26; Curley B.Harris, (11 A.) 93 112. 10. So is a release, though without consider- ation; but an unsealed receipt in full, without consideration, is not such a bar. Stevens ». Hathorne, (12 A.) 94 402 11. Where, in an action before a justice of the peace the defendant interposed a set-off, and the claims were litigated and passed upon, and judgment rendered and paid, this is a good ac- cord and satisfaction, although the justice had no jurisdiction. Hunt v. Taft, 100 91. 12. An executed agreement, although origin- ally oral, between a debtor and his creditors, that the latter will assign all his property to a trustee for their benefit, and that they will dis- charge him, is a good accord and satisfaction, although all the creditors did not become parties: Eaton v. Lincoln, 13 424. See, also, Composition; and Bigelow v. Baldwin, (1 G.) 67 245. 13. The lapse of twenty years after breach of a sealed contract is sufficient evidence of accord and satisfaction; but the lapse of eleven years, without calling for payment, will not warrant a jury in finding either payment, or accord and satisfaction. Jenkins v. Hopkins, (9 P.) 26 542; Austin v. Moore, (7 Met.) 48 116. 14. Semble, that where the parties interested ia ACCOUNT— ACTION, I. the estate of an intestate, agreed that adminis- tration should be waived or suspended, and the whole property delivered to the widow, the ad- ministrator may rely upon his execution thereof as an accord and satisfaction, in an action upon his bond. Coffin v. Jones, (11 P.) 28 45. 15. A defence of accord and satisfaction is not available under an answer alleging payment. Grinnell v. Spink, 128 25. 16. An agreement, void for not being in writ- ing, will not support a defence of accord and satisfaction. Stults v. Newhall, 118 98. 17. For a peculiar case, depending upon a question of fact, see Batchelder v. Sturgis, (3 C.) 57 201. Account ; account stated ; account annexed. [For ruling relating to the. action of account, which was abolished by E. S., Ch. 118, S 43, see Sarg- ent v. Parsons, 12 119; Fowle v. Kirkland, (18 P.) 35 299. For a suit in equity for an accounting, see Equity Jurisdiction, II, (10).] 1. An action will lie upon an account stated, where the maker and payee of a promissory note, upon which paymenis have been made, adjust the amount due by deducting a portion of the interest. Buxton v. Edwards, 134 567. 2. Assumpsit on an account stated lies for money awarded under an oral submission. Bates ». Curtis, (21 P.) ' 38 247. 3. It lies although a non-negotiable note has been given for the balance settled. Greenwood v. Curtis, 4 93. Or where an illegal note has been given there- for. Greenwood v. Curtis, 6 358. 4. It is a defence to an action on an account stated, that the entire claim was founded upon an illegal transaction. Dunbar v. Johnson, 108 519. 5. Where the parties, having settled their ac- counts, acknowledge the settlement by a sealed instrument, the latter does not merge the simple contract, and insimul computassent will lie. Hoyt B.Wilkinson, (10 P.) 27 81. 6. The omission of a third person's outstand- ing debt in a settlement between partners, and its subsequent payment to one, do not prevent an action on an account stated for the'ba ance. Vinal v. Burrill, (16 P.) 33 401. 7. In an action upon an account annexed, items proved cannot be stricken out because they do not appear in the plaintiff's account books. Boston, etc., Iron Works v. Montague, 135 319. 8. The dissolution of a partnership does not prevent an action by the partners jointly against a debtor of the firm on an account annexed. Fish v. Gates, 133 441. 9. As to the sufficiency, under the practice act, of a declaration or an answer ba ed upon an insimul computassent, see Chace v. Trafford, 116 529; Rand v. Wright, 129 50. Vol. 1—2 10. For rulings applying the provision of the practice act, G. S., Ch. 129, § 2; P. S., Ch. 107, I 2, that the count on an account annexed may be used, whenever the cause of action would be correctly described by any of the common counts, see Morses. Potter, (4 G.) 70 292; Stearns v. Washburn, (7 G.) 73 187; Hall e. Wood, (9 G.) 75 60; Warden v. Mar- shall, 99 305; Mullettii. Bemis, lOO 92; Moore v. Sherman, 106 430; Ray- mond D. Eldridge, 111 390; Turner v. Langdon, 112 265; Lowes. Pimental, 115 44; Brown v. Abington Sav. Bk., 119 69; Lovell is. Earle, 127 546; Bowen v. South Building, 137 274, Accretion of land. [See Alluvion ; Water Course.] Accumulation. [See Devise, II, (6) ; III, (1) ; Trust, III, (2) ; Per- petuity.] Acknowledgment of conveyance. LSee Deed, II, (1).] Acquittal. [See Indictment; Trial, IV.] Action. I. General Principles as to the Right to maintain an Action. II. Action founded upon or affected by a Statute. III. When an Action is deemed to have BEEN COMMENCED. [For rulings applicable to particular kinds of ac- tions, or actions in favor rf or agaiust particular persons or bodies, see those titles respectively. As to the abatement or survival of actions, see Abate- ment. For rulings as to what actions are local and what actions are transitory, see Practice, I, (2). As to an acti6n by or against a public officer, see Con- stable : Election, II, (2); Judge; Justiceofthe Peace, I, (2): Office an Officer, I, (3); II ; Sher- iff ; Taxation, VI, (7); VII, (1); VIII.l I. General Principles as to the Right to MAINTAIN AN ACTION. 1. One who commits a tortious act is liable for any injury, which is the natural and probable consequence thereof, including such consequen- tial injuries, as, according to common experience, are likely to result therefrom, although natural causes, or the lawful or wrongful acts of others, contributed to inflict or increase the injury. Dickinson v. Boyle, (17 P.) 34 78; Barnard i). Poor, (21 P.) 38 378; Powell v. Deveney, (3 C.) 57 300; McDonald v. 10 ACTION, I. Snelling, (14 A.) 96 290; Tutein v. Hurley, 98 211; Carters Towne, 98 567; Wellington v. Downer, etc., Co., 104 64; Salisbury v. Herchenroder, 106 458; Metallic, etc., Co. v. Fitchburg Railroad, 109 277; Hoadleyfl. North Trans. Co., 115 304; Deny v. Flitner, 118 131. |See, also. Gas; Illuminating Fluid; Negli- gence.] 2. Where a horse, frightened by a dog, shies upou the highway, if the shying was not a vicious habit of the horse, the owner of the dog is liable. Denison v. Lincoln, 131 236. 3. "Where a person delivers a dangerous ar- ticle to another, who is unfit to have charge of it, or who is ignorant of its dangerous qualities, he is liable for an injury caused thereby. Carter v. Towne, 98 567; Wellington v. Downer, etc., Co., 104 64; Norton v. Sewall, 106 143. 4. Where an article is harmless in itself, but dangerous in combination with another, the seller is not liable for an injury proceeding from such combination, if he did not know that it was to be so used, although the article sold is not that which was intended to be sold. Davidson v. Nichols, (11 A.) 93 514. 5. Semite, however, that he is liable, if the two substances are habitually used together, and he failed to disclose the danger on delivering to a carrier. Boston & A. R. R. Co. v. Shanly, 107 568. 6. And where gunpowder, sold improperly to a child of tender years, is placed by him in his parents' custody, from which he takes it, and is injured by an explosion, the seller is not liable. Carter v. Towne, 103 507. 7. The owner of a dwelling-house, infected with the small- pox, who leases it for a habita- tion, without disclosing the facts, is liable to the lessee, who is attacked by the disease. Minor v. Sharon, 112 477. [For other cases relating to the liability of the owner of real property for a wrongful use, etc., thereof, see Land-owner; Landlord and Tenant, IV, (1) ; Negligence, I, (1) ; Nuisance.] 8. One who sells diseased meat for wholesome food is liable, although there is no averment of payment or special damage. Peckham v. Holman, (11 P.) 28 484. 9. An action lies against a stranger to the title for an injury to real property, where the plaintiff is in possession, claiming title, without showing a sufficient title to maintain ejectment. Howes v. Grush, 131 207. 10. Before St. 1881, Ch. 199, an action would not lie in favor of husband, wife, child, or ex- ecutor, to recover for causing a human being's death. Carey v. Berkshire R. R.,(1C.) 55 475; Kearney v. Boston & W. R. R. , (9 C.) 63 108; Hollenbeck v. Berkshire R. R., (9 C.) 63 478; Palfrey v. Portland, etc., R. R., (4 A.) 86 55;Moran«.Hollings, 125 93. [As to an action to recover damages for the de- cedent's sufferings before death, see Abatement, I, (1).] 11. An action will not lie against the master of a vessel for carrying to sea an officer, who boarded her to arrest a person, and who had notice and opportunity to go ashore. Spoor v. Spooner, (12 Met.) 53 281. 12. An action lies for suborning a witness to testify falsely, to the damage of the plaintiff's character, in an action between others. Rice «. Coolidge, 121 393. 13. An action will not lie in favor of the owner of part of a building, against an owner of another part, for failure to repair his part. Pierce v. Dyer, 109 374. 14. An action lies against one having a right of way for using it for an unauthorized purpose. Davenport v. Lamson, (21 P.) 38 72; Appleton v. Fullerton, (1 G.) 67 186. 15. An action will not lie against a land- owner for cutting down, after notice to remove the same, the plaintiff's seine reel on the land, although the reel floated off and was lost. Almy v. Grinnell, (12 Met.) 53 53. 16. An action will not lie against a mortgagee, upon a voluntary promise not to act under a power of sale, without notice to the mortgagor. Randall v. Hazelton, (12 A.) 94 412. 17. An action lies for fraudulently inducing the plaintiff to form a copartnership with an in- solvent. Bean v. Bean, TL2 19. 18. But an action will not lie against the plain- tiff's copartner and another, for inducing him to sell his interest, by procuring attachments, etc. O'Callaghan v. Cronan, 121 114. 19. Nor in any other case, unless the act com- plained of, or the means by which it is accomp- lished, are shown to be unlawful. Groustra *. Bourges, 141 7. 20. An action lies by a creditor against a fraudulent mortgagee of goo s, for inducing the plaintiff to relinquish the levy of an attach- ment against the mortgagor, by a pretence that the mortgage was valid. Brown >•. Castles, (11 C.) 65 348. 21. But not by a creditor against one, who fraudu ently purchases or conceals the debtor's property, and aids him to abscond. Lamb v. Stone, (11 P.) 28 527; Wel- lington v. Small, (3 C.) 57 145. 22. An inlen'.ion in the plaintiff's mind to do an act is not property, the abandonment of which lays the foundation of an action. Dudley v. Briggs, 141 582. 23. Thus an action will not lie for preventing the plaintiff from publishing a directory, by false representations to his patrons that he did not in- tend to publish it, whereby their patronage was diverted to the defendant's directory. Dudley v. Briggs, 141 582. 24. Qu., whether an action lies for inducing one to break an executory contract with the plaintiff, other than a contract of service. Walker v. Cronin, 107 555. [As to enticing away the plaintiff's servant, etc., see Master and Servant, IV.] 25. One who has contracted with a town to support its paupers cannot recover for beating one of them, thereby increasing his expense. Anthony v. Slaid, (11 Met.) 52 290. 26. An action lies for wrongfully using the badge of the plaintiff's coaches to entice passen- gers. Marsh v. Billings, (7 C.) 61 322. ACTION, I, II. 11 2". An action lies for erecting a building pro- jecting into the street next to the plaintiff's. Stetson v. Faxon, (19 P.) 36 147. 28. An action lies for a felonious injury to personal property. Boardmanfl. Gore, 15 331; Boston & W. B. R. v. Dana, (1 G.) 67 83. 29. Or for destruction or carrying away of title deeds or securities. Towle 1>. Lovet, 6 394; Daniels v. Daniels, 7 135; Kingman v. Pierce, 17 247; Day v. Whitney, (IP.) 18 503; North Bridgewater C. Soc. ». Howard, (16 P.) 33 206 30. An action will not lie against an adminis- trator for hoard of the decedent, furnished by a relative from affection merely. Shepherd v. Young, (8 G.) 74 152. 31. An action lies by one partner or joint con- tractor against another, for unjustly refusing to allow his name to be used in an action, or releas- ing the cause of action. Wilson v. Mower, 5 407; Eastman e. Wright, (6 P.) 23 316. But see Talbot v. Cains, (5 Met.) 46 520. 32. An action lies for suing the plaintiff in another's name without authority. Pierce v. Thompson, (6 P.) 23 193; Bond o. Chapin, (8 Met.) 49 81. [See Malicious Prosecution, I, (1).] 33. An allegation of conspiracy, tort, etc., will not sustain an action, unless the purpose is unlawful, or to be accomplished by unlawful means. Bowen v. Matheson, (14 A.) 96 499; O'Callaghan v. Cronan, 121 114; Grous- v. Bourges, 141 7. 34. Nor will an unlawful intent sustain an ac- tion, unless damage has resulted to the plaintiff. Morgan v. Bliss, 2 111; Wellington®. Small, (8C.) 57 145. 35. A person cannot maintain an action upon a contract with another, unless he has a legal interest in the subject thereof. Driscoll v. Nichols, (5 G.) 71 488. [As to the general right of a person to maintatnan action upon a contract between others, see Con- tract, I, (3) , Assumpsit, I, (3).] 36. An action will not lie against an unquali- fied person for neglecting to serve civil process, although he represented himself to be qualified. Whitney v. Blanchard, (2 G.) 68 208. 37. A party engaged in an illegal act cannot recover, where the illegal act must be shown to make out his claim; otherwise he can recover. Wheeler v. Russell, 17 258; D wight v. Brewster, (1 P.) 18 50; Babcock o. Thompson, (3 P.) 20 446; Ball D.Gilbert, (12 Met.) 53 397; White v. Buss, (3 C.) 57 448; Gregg o. Wyman, (4 0.) 58 322; Duffy v. Gorman, (IOC.) 64 45- Fosters. Thurston, (11C.) 65 322;Welch v. Wesson, (6 G.) 72 505; Hall ti. Cor- coran, 107 251; Snow v. Wheeler, 113 179. 38. One injured, in consequence of the defend- ant's illegal act, may maintain an action without proof of negligence. Salisbury v. Herchenroder, 106 458; Hyde Park v. Gay, 120 589. [See, also, Negligence.] 39. Where the defendant's act, completed with the consent of the plaintiff's vendor, before he procured title to land, afterwards results in an injury to a building erected by the plaintiff, an action will not lie. Willoughby v. Middlesex Co., (8 Met.) 49 296. 40. A right of action for injury to p-operty is not affected by payment by an insurer. Clark i). Wilson, 103 219; Hay ward v. Cain, 105 213. 41. An action for the full amount lies upon the defendant's promise to pay the plaintiff's debt, although the latter has not paid it. Smith v. Pond, (11 G.) 77 234; Fur- nas v. Durgin, 119 500; Valentine v. Wheeler, 122 566. 42. And where a chattel is negligently injured by a third person, while in the possession of a bailee for hire, the latter may maintain an action, although it has been repaired by the bailor, and the plaintiff has not paid him. Brewster v. Warner, 1 36 57. 43. An action will not lie by a corporation to recover an assessment on shares, where there is no promise, and the charter authorizes the sale of the shares for nonpayment. Andover Turnpike v. Gould, 6 40; Andover Turnpike v. Hay, 7 102; New Bedford T. v. Adams, 8 138; Middlesex T. v. Swan, lO 384; Franklin Glass Co. v. White, 14 286; Chester G. Co. v. Dewey, 16 94; Cutler v. Middlesex Factory, (14 P.) 31 483; Mechanics', etc., Co. v. Hall, 121 272; Katama Land Co. v. Jernegan, 126 155. [See, also, Corporation, II, (1).] 44. A collector of taxes cannot sue to recover them, unless specially authorized by statute. Crapo ii. Stetson, (8 Met.) 49 393. 45. An action will not lie, unless the plaintiff has a complete cause of action when it is com- menced. Hoyt v. Wilkinson, (10 P.) 27 31; Vail v. Durant, (7 A.) 89 408; Cram ». Holt, 135 46. See, also, III, post. 46. Where land was conveyed upon a promise to support the grantor, an action lies for the breach of the promise, not the value of the land. Lyman v. Lyman, 133 414. 47. An action will not lie for an intentional non-entry of an action in which property has been attached, and bringing a new action and attaching therein the same property. Johnson -o. Reed, 136 421. 48. An action lies for compensation for the use of a boiler in another's building, whether it is a fixture or not. Raddin v. Kidder, 111 44. II. Action pounded upon or affected by a Statute. 49. In general, where a statute creates a right, and prescribes a mode of enforcement thereof, or a remedy for the violation thereof, the party is confined to the statute remedy. Gedney v. Tewksbury, 3 307; Smith v. Drew, 5 514; Little v. Greenleaf, 7 236; Stowell v. Flagg, 11 364; Stevens v. M. Canal. 12 466; Leland v. Marsh, 16 389; Wolcott W. M. Co. v. TJpham, 12 ACTION, II, III— ACTION ON THE CASE. (5 P.) 22 292; Osborn ». Danvers, (6 P.) 23 98; Preston t>. Boston, (12 P.) 29 7; Comm. v. Howes, (15 P.) 32 231; Sud- bury Meadows v. M. Canal, (23 P.) 40 36; Boston v. Shaw, (1 Met.) 42 130; Wiley D.Yale, (1 Met.) 42 553; Keltonu Phillips, (3 Met.) 44 61; Dodge D.Essex Com'rs, (3 Met.) 44 380; Leland v. Woodbury, (4 C.) 58 245; Bates v. Boston, (5. C.) 59 {'3; Raymond o. Andrews, (6 C.) 60 265; „Iowe o. Boston, (7 C.) 61 273; Lincoln v. Worcester, (8 C.) 62 55; Knowlton v. Ackley, (8 C.) 62 93; Tower v. Boston, (IOC.) 64 235; Bourne-u. Boston, (2 G.) 68 494; Perry d. Worcester, (6 6.) 72 544; Learock v. Putnam, 111 499; Rox- bury i!. Nickerson, 114 544; Roxbury v. Minot, 114 546. 50. So if the statute gives a right of action only in certain cases, that takes away the com- mon law right of action in all cases. Williams v. Hingham Turnpike, (4 P.) 21 341. 51. But where the statute confers upon one power over another's property, giving him a remedy for the injury caused thereby, and in- jury is produced by negligent or excessive exer- cise of the power, he may maintain a common law action against the former. Estabrooks v. P. & S. Railroad, (12 C.) 66 224; Mellen v. Western R. R., (4 G.) 70 301; Perry v. Worcester, (6 G.) 72 544; Hand v. Brookline, 126 324; Hull u.Westfield, 133 433; Perkins v. Law- rence, 136 305. 52. Where, however, the act is within the power conferred, the party is confined to the statute remedy, although the injury was caused by an erroneous or even malicious exercise of discretion. Elder v. Bemis, (2 Met.) 43 599; Ben- jamin n. Wheeler, (8 G.) 74 409; Ben- jamin v. Wheeler, (15 G.) 81 486. 53. And if the statute merely authorizes the injury, without providing a specific remedy, not only for the assessment of the damages, but also for the collection thereof, a common law action lies. Bigelow v. Cambridge Turnpike, 7 202 Jeffrey v. Blue Hill Turnpike, lO 368 Rice v. Barre Turnpike, (4 P.) 21 130 Cogswell v. Essex Mill Co., (6 P.) 23 94 Russell Mills v. Plymouth Com'rs, (16 G.j 82 347. 54. And if the statute affixes a penalty to an act, that does not take away the common law right of action. Heridia v. Ayres, (12 P.) 29 334; Par- ker v. Barnard, 135 116. 55. Nor is a party confined to a remedy upon a bond which the statute requires to be given, although it is for the benefit of all injured. .-torer v. Storer, 6 390; Homer ■». Whitman, 15 132; Miller v. Pendleton, (8G.) 74 547. 56. And where a remedy existed at common law, and a new statute remedy is created, with- out negative words, it will be deemed merely cumulative, and will not take away the common law action. Thus a town may recover against a husband for necessaries furnished to his wife as a pauper. ' Hanover v. Turner, 14 227; New . Chadwick, (3 P.) 20 420; Adams *. Paige, (7 P.) 24 542; Barden v. Crocker, (10 P.) 27 383; Sheridan v. Bean, (8 Met.) 49 284; Brown v. Castles, (11 C.) 65 348. III. When an Action is deemed to have BEEN COMMENCED. [For the rule with respect to the Statute of Limi- tations, see Limitation of action, V, (1).] 58. An action is commenced when the writ is sued out; and the teste of the writ is prima facie evidence of that time, but the actual time may be shown by oral testimony. Parkman v. Crosby, (16 P.) 33 297; Gardner v. Webber, (17 P.) 34 407. 59. But if made provisionally and delivered to an officer with instructions to delay service, the action is not commenced till the expiration of the time for delay. Badger v. Phinney, 15 359; Seaver v. Lincoln, (21 P.) 38 267. See, also, Wheatland v. Lovering, (10 G.) 76 16. 60. Where the defendant promises the officer holding the writ to pay a debt, contracted while he was an infant, the promise is unavailable, having been made after suit brought. Ford v. Phillips, (1 P.) 18 202. 61. If the cause of action had not accrued at : the date of a writ of replevin, but accrues he- fore service thereof, and there is no evidence when it was delivered, the action is not prema- turely brought. Federhen v. Smith, (3 A.) 85 119. 62. But if the writ is filled up with intent that it should be executed, the action is prema- ture, although the cause of action accrued be- fore the service. Swift v. Crocker, (21 P.) 38 241; Field v. Jacobs, (12 Met.) 53 118. 63. Where a demand is necessary, and a writ is filled up and delivered, with intent that it should be served only in case of a refusal, upon a demand to be made, and it is served after such demand and refusal, the action is not premature. Grimes v. Briggs, HO 446. 64. Where, in an action against the maker of a note, the writ is made after sunset on the last day of grace, and delivered to an officer the next day, the action is not premature. Butler v. Kimball, (5 Met.) 46 94. 65. But in a like action, if, without demand and refusal, the writ is made and executed after sunset of the last day of grace, the action is pre- mature. Estes v. Tower, 102 65. Action on the case. [See Case, Action on the.] ADEMPTION— ADVANCEMENT. 13 Ademption. [See Devise and Bequest, V.] Adjudication. [See Former Adjudication, Judgment.] Administering poison. [See Poisoning.] Administrator. [See Executor and Administrator.] Admiralty court. [See District Court of the United States; Jurisdiction, II.] Adoption. [See Conflict op Laws, in, (3); Parent and Child, II.] Adulteration of milk. -* [See Milk.] Adultery. {Criminal Law.) [For adultery as a ground of divorce, see Divorce, II, (2). For the civil action, see Criminal Conver- sation.] 1. Under the existing statute, adultery is com- mitted by a married man or woman, who has sexual intercourse with a person other than his wife or her husband; or by an unmarried man who has sexual intercourse with a married woman ; or by an unmarried woman who has sex- ual intercourse with a married man. Comm. v. Call, (21 P.) 38 509; Comm. v. Elwell, (2 Mist.) 43 190; Comm. v. Tompson, (2 C.) 56 551. 2. But a man who in good faith marries a woman, whose husband has left her, and has not been heard of for seven years, is not guilty of adultery, although her husband is living. Comm. ». Thompson, (6 A.) 88 591. 3. "Where a guilty divorced party marries again, contrary to the statute, he is guilty of polygamy, but not of adultery. But if the sec- ond marriage takes place in another state, where it is not prohibited, the cohabitation of the par- ties here is not a crime Comm. v. Putnam, (1 P.) 18 136; West Cambridge v. Lexington, (1 P.) 18 506; Putnam fl. Putnam, (8 P) 25 433; Comm. v. Hunt, (4 C ) 58 49. 4. "Where the indictment comprises three counts, each charging a distinct offence, the de- fendant may be convicted upon one and acquit- ted upon the others. Comm. v Kuisseau, 140 363. 5. The parties may be jointly indicted. Comm. v. Elwell, (2 Met.) 43 190. 6. And upon a joint indictment the man alone- may be convicted, it appearing that the transac- tion was a rape. Comm. v. Bakeman, 131 577. See also Comm. v. Squires, 97 59. 7. It is not essential to allege in the indict- ment of an unmarried man, or to prove, that lie- knew that the woman was married. Comm. v. Elwell, (2 Met.) 43 190. 8. The admission of the defendant, with proof of an opportunity, etc., is sufficient to convict; but upon a joint indictment, the admission of each defendant of a different act is not sufficient for a joint conviction. Comm. v. Tarr, (4 A.) 80 315; Comm. v. Cobb, (14 G.) 80 57; Comm. v. Holt,. 121 61. 9. The admission of the defendant is sufficient proof of marriage, and that the husband or wife- was living. Comm. b. Holt, 121 61. 10. But not the admission of the defendant's husband or wife. Comm. v. Franklin, (6 G.) 72 346. 11. Evidence of the woman's reputation for chastity is admissible in behalf of a man indicted. Comm. v. Gray, 129 474. 12. The husband of the woman, with whom, the defendant is charged with committing adul- tery, is not a competent witness. Comm. v. Sparks, (7 A.) 89 534. 13. After evidence tending to prove the com- mission of the crime, the Commonwealth may show previous acts of improper familiarity. Comm. v. Merriam, (14 P.) 3,1 518;. Comm. v. Morris, (1 C.) 55 391; Comm. ». Pierce, (11 G.) 77 447; Comm. v. Lahey,(14G.) SO 91; Comm.«. Durfee r lOO 146. 14. Or other acts of adultery, at about the- same time in another county. Comm. v. Nichols, 114 285. 15. Evidence of acts of adultery, out of the- Commonwealth, with the person named in the indictment, is admissible to show the nature of an intercourse with the same person within the- Commonwealth, respecting which the testimony- is doubtful. Thayer v Thayer, 101 111; overrul- ing Comm. ii. Horton, (2 G.) 68 354; and Comm. e. Thrasher, (11 G.) 77 450. For other rulings upon questions of evidence- upon the trial of indictments for adultery, see Comm. v. Belgard, (5 G.) 71 95; Comm. v. Curtis, 97 574; Comm. v. O'Connor, 107 219; Comm. v. Bowers,. 121 45; Comm. v. Nefus, 135 533. [See, also, Divorce, II, (2) ; Polygamy.] Advancement. 1. Under the statute, an advancement cannot be proved by oral delarations; nor can oral declarations control the effect of a written 14 ADVANCEMENT— ADVEESE POSSESSION, I. charge of an advancement, made by the dece- dent. Bulkeley v. Noble, (2 P.) 19 337; Barton v. Rice, (22 P.) 39 508; Hart- well v. Rice, (1 G.) 67 587. 2. No particular words are requisite to create a written charge of advancement by the dece- dent. As to the sufficiency of such charges in particular cases, see Bulkeley v. Noble, (2 P.) 19 337; In re Ashley, (4 P.) 31 21; Paine v. Parsons, (14 P.) 31 318; Bigelow t>. Poole, (10 G.) 76 104. 3. As to the sufficiency of written acknowl- edgments of advancements by descendants in particular cases, see Paine v. Parsons, (14 P.) 31 318; Jones v. Richardson, (5 Met.) 46 247; Hartwell v. Rice, (1 G.) 67 587; Nich- ols ». Coffin, (4 A.) 86 27. 4. A written agreement, executed by children among themselves, and not communicated to their father, is not a sufficient acknowledgment. Fitts v. Morse, 103 164. 5. A deed expressed to be partly for love and affection, and partly for a pecuniary considera- tion, is neither a charge nor an acknowledg- ment. Bullard v. Bullard, (5 P.) 22 526. [See, under the former statute, Scott v. Sontt, 1 526; Quarles». Quarles, 4 680; Kunney v. Tucker, 8 142; Whitmans. Hapgood, 10 4.7.J 6. An advancement cannot be deducted from a legacy given in a will subsequently made; but if the will is revoked the advancement stands. Jones «. Richardson, (5 Met.) 46 247; Hartwell v. Rice, (1 G.) 67 587. 7. The word," advances," used in a will, is not necessarily synonymous with advancements. A legacy to children of a deceased son of such an amount, as, "with the advances made by me" to the son, will give them an equal share with the other children of the testator, calls for an allowance of all benefits which may reasonably be considered an appropriation of the testator's estate. Barker v. Comins, HO 477. 8. Interest is not chargeable upon an advance- ment, unless the charge, the acknowledgment, or the will otherwise provides. Osgood v. Breed, 17 356; Hall v. Davis, (3 P.) 20 450, Treadwell t>. Cor- dis, (5 G.) 71 341. 9. Where a will divides the estate equally among children, deducting advancements to each, and some advancements were in the form of book charges, a child, who has given his note upon interest, cannot, by paying the note with- out interest, entitle himself to a full share. Hall v. Davis, (3 P.) 20 450. 10. As to the construction, effect, and mode of adjustment, in particular cases, of provisions of wills relating to advancements, see Smith v. Chandler, (1 G.) 67 524; Treadwell v. Cordis, (5 G) 71 341; Nich- ols v. Coffin, (4 A.) 86 27; Monks v Monks, (7 A.) 89 401; Rogers v. Dan- iell, (8 A.) 90 343 ; Bacon v. Gassett, (13 A) 95 ,334; Loring v. Blake, 106 592; Cummings t\ Bramhall, 120 552. 11. Under St. 1805, Ch 90, §3, an ad- vancement of personal property is to be first deducted from the distributive share of the per- son advanced. Bemis v. Stevens, 16 200. Adverse possession ; disseisin. I. Parties to, and Subjects of. II. Sufficiency. (1.) General rules. (2.) Unoccupied and wild land. (3.) Land under water. (4.) Effect of a grant or an agreement for a grant. (5.) Occupation of a part only. III. Effect. (1.) Title acquired. (2.) Conveyance by disseisee. (3.) Other matters. [See, also, Easement, II, (2) ; Joint tenants, 1 ; Limitation of Action, IV, (2); Prescription; Seisin.1 I. Parties to, and Subjects of. 1. A grant of land by the Commonwealth passes title, notwithstanding an adverse posses- sion, for the Commonwealth cannot be disseised. Ward «. Bartholomew, (6 P.) 23 409. 2. A married woman may be ousted, or may gain title, by adverse possession. Melvinu. Locks, etc., (16 P.) 33 161; Steel v. Johnson, (4 A.) 85 425. 3. A municipal, or a religious or other private corporation, may acquire title by adverse posses- sion. Manning v. Gloucester, (6 P.) 23 6; Tyler v. Hammond, (11 P.) 28 193; Rehoboth Precinct ». Carpenter, (23 P.) 40 131; Atty.-Genl. v. Federal St. Meet- ing House, (3 G.) 69 1; Boston v. Rich- ardson, 105 351. 4. The lessee of an easement may disseise the lessor during the term. Tyler v. Hammond, (11 P.) 28 193. 5. A mortgagee cannot be disseised by the mortgagor until after foreclosure. Colton v. Smith, (11 P.) 28 311; Hunt v. Hunt, (14 P.) 31 374; Sheridan v. Welch, (8 A.) 90 166-; Lincoln v. Emer- son, 108 87; Johnson «. Bean, 119 271. 6. A grantee may be disseised by a grantor. Stearns i>. Hendersass, (9 C.) 63 497; Barry t>. Adams, (3 A.) 85 493. 7 Where there is a privity of title between successive disseisors, they are all regarded as one party, for the purpose of establishing a title by adverse possession; but where there is no privity of title, the possession of one does not aid another. Ward v. Bartholomew, (6 P.) 23 409; Allen v. Holton, (20 P.) 37 458, Melvin ». Locks, etc., (5 Met.) 46 15; Wade v. Lindsey, (6 Met.) 47 407; Plumer v. Brown, (8 Met.) 49 578; Sawyer v. Ken- dall, (10 C.) 64 241; Peele e. Cheever, (8 A.) 90 89; Haynes v. Boardman, 119 414. ADVERSE POSSESSION, I; II, (1). 15 8. And occupation under a disseisor is pre- sumed to continue under his heirs. Currier v. Gale, (9 A.) 91 522. 9. But a wife has no such privity of estate ■with her husband, that her adverse possession can be tacked to his after his death. Sawyer •». Kendall, (10 C.) 64 241. 10. The use of land on the seashore for a land- ing place, by the inhabitants of a town, does not inure to the town. Green «. Chelsea, (24 P.) 41 71. 11. A disseisin of the mortgagor of land is also a disseisin of the mortgagee, so that the mortgagee's deed will not pass his interest. Poignand v. Smith, (8 P.) 25 272; Dadmun v. Lamson, (9 A.) 91 85. 12. A disseisin of the tenant for life does not affect the title of the remainderman, whose right of entry accrues upon the death of the former, without regard to the time elapsed since the disseisin Wells v. Prince, 9 508; "Wallingford «. Hearl, 15 471; Tilson v. Thompson, (10 P.) 27 359; Marcy s. Marcy, (6 Met.) 47 360; Miller v. Ewing, (6 C.) 60 34; Edson ». Munsell, (12 A.) 94 600. 13. One tenant in common may disseise another; but the acts of disseisin must be noto- rious, and must affirmatively show an intent to occupy the property, to the exclusion of and in denial of the right of the other. Whether they do so is a question of fact; but the presumption is in favor of the legal title. Gordon v. Pearson, 1 323; Higbee v. Kice, 5 352; Leonard v. Leonard, lO 281; Cummingss. Wyraan, lO 464; Flagg v. Thurston, (13 P.) 30 145; Whitings. Dewey, (15 P.) 32 428; Parker v. Locks, etc., (3 Met.) 44 91; Marcy ». Marcy, (6 Met.) 47 360; Sullivan v. Hclmes, (8 C.) 62 252; Ewers. Lovell, (9G.i 75 276; Lefavour «. Homan, (3 A.) 85 354; Ben- nett d. Clemence, (6 A.). 88 10; Bellis v. Bellis, 122 414; Ingalls v. Newhall, 139 268. 14. Where one tenant in common of land, bordering upon the sea, inclosed part with a bank wall, and placed thereupon a movable fish- house and a pump, and afterwards leased the same, received rent and paid taxes, and the other tenants in common used the fish-house, and they and the whole neighborhood the pump; it was held that there was no ouster, even after twenty years. Ingalls v. Newhall, 139 268. 15. Where a tenant in common conveys the entire land, his grantee's entry and exclusive occupation is a disseisin of the co-tenant. Bigelow v. Jones, ( 10 P.) 27 161; Marcy «. Marcy, (6 Met.) 47 360. 16. The same rule holds as to a joint tenant's conveyance; but if he conveys a part only by metes and bounds, an entry thereunder is not a disseisin of either. Porter v. Hill, 9 34; Kittredge v. Locks, etc., (17 P.) 34 246. 17. Possession of a cestui que trust is pre- sumed to be under the trust; but it may be made adverse- to the trustee by acts inconsistent with the presumption. Atty.-Genl. v. Federal St. Meeting House, !3 G.) 69 1; Whiting v. Whiting, (4 G.) 70 236; Elwell «. Hiockley, 138 225 18. Where the trustee sells the trust estate, the vendee's entry and occupation are adverse, if there is nothing to show that the trust was recognized. Merriam «. Hassam, (14 A.) 96 516. 19. A right to an incorporeal, as well as a cor- poreal hereditament, may be acquired by unin- terrupted enjoyment. Arnold v. Stevens, (24 P.) 41 106. 20. A right to a private way across a railroad track may be acquired by user for twenty years. Fisher v. N. Y. & N. E. R. R., 135 107. [See, also, Easemeht; Highway; Phescriftion.1 II. Sufficiency. (1.)) General rales. 21. To render possession adverse, it must be continued, open, visible, actual, and exclusive of every other title. Kennebeck Purchase ». Call, 1 483; Norcross v. Widgery, 2 508. 22. To constitute a disseisin, the disseisor must have actual occupation, exclusive of the disseisee, under claim of right; or he must ac- tually turn out the disseisee. Kennebeck Purchase «. Springer, 4 416; Boston Mill Corp. . Potter, 3 215; Gore e. Brazier, 3 523; Wyman «. Brigden, 4 150; Bigelow v. Jones, 4 512; Bott v. Burnell, 9 96; Allen v. Thayer, 17 299; Larcoms. Chcsver, (16 P.) 33 260; Blood v. Wood, (1 Met.) 42 528; Brown v. King, (5 Met.) 46 173; Peabody i\ Tarbell, (2 C.) 56 226; Cushman®. Car- penter, (8 C.) 62 388; Allen v. Taft, (6G.) 72 552. 26. Where the first entry was by the owner's permission, the subsequent occupation is pre- sumed to be permissive, unless some act is shown which amounts to a disseisin. Oakes v. Marcy, (10 P.) 27 195; Hall «. Stevens, (9 Met.) 50 418. 27. Writings, and acts, relations, or declara- tions of the parties, are competent evidence to show the character of the possession. Sumner v. Tileston, (7 P.) 24 198; Church v. Burehardt, (8 P.) 25 327; Hale v. Silloway, (1 A.) 83 21. 28. But a tenant's payment of rent to another, or his admissions, if without his land. 16 ADVEKSE POSSESSION, II, (2), (3), (4), (5). lord's assent, will not affect his possession as the landlord's possession. Haynes v. Boardman, 119 414. 29. "Where the assignee of a mortgage, under an invalid assignment, has attempted to fore- close it, entry by his administrator is deemed to assert only a mortgage interest, and so is not a disseisin of the mortgagor. Austins. Shaw, (10 A.) 92 552. 30. If a party's seisin at one time is proved or admitted, the presumption is that it con- tinues; and the burden of proof is upon him who alleges a disseisin. Brown s. King, (5 Met.) 46 173. 31. The erection of a building, with eaves projecting over the owner's land, is not a dis- seisin as to the land under the eaves. And al- though prescription will give him the right to maintain the eaves, the owner of the land under the eaves may still use it, for any purpose not inconsistent with that right. Thackers. Guardenier, (7 Met.) 48 484; Randall v. Sanderson, 111 114; Eaton s. Evans, 115 204. 82. There can be no adverse possession of land between the travelled part of a turnpike, and a building abutting upon it; for the owner «f the soil has no right to the possession, and the turnpike company and the public have only an easement. Parker®. Framingham, (8 Met.) 49 260. 33. As to the sufficiency of particular acts show disseisin, see Allen s. Holton, (20 P.) 37 458; Howland s. Crocker, (7 A.) 89 153; Barry s. Adams, (14 A.) 96 208; Mor- rison s. Chapin, 97 72; Hastings s. Merriam, 117 245; Eield s. Hawley, 126 327; Snow v. Orleans, 126 453. 34. But the owner may elect to consider him- self disseised by a hostile use of his land, and bring his action to recover, although the occu- pation falls short of that necessary to lay the foundation of a title. Allen s. Holton, (20 P.) 37 458. C'i.> Unoccupied and wild land. 35. Where the land is vacant, a tortious entry, and open exclusive possession under claim of title, are equivalent to an ouster. Small ®. Procter, 15 495; Simmons s. Nahant, (3 A.) 85 316. 36. A disseisin of the owner of uncultivated land can be effected only by cultivation, build- ing, permanent fencing, or similar acts of per- manent occupation, and claim of ownership. Kennebeck Purchase ». Springer, 4 416; Bates s. Norcross, (14 P.) 31 224; Coburn s. Hollis, (3 Met.) 44 125; Sla- ter s. Jepherson, (6 C. > 60 129; Stevens s. Taft, (11 G.) 77 33; Parkers. Parker, (1A.) 83 245; Morrisons. Chapin, 97 72; Morris s. Callanan, 105 129; Cran- dell ». Taunton, HO 419. 37. The mere execution and recording of a warranty deed of wild land, without other evi- dence of the grantor's title, will not enable the grantee to recover against one, who has been in possession for more than twenty years, exercis- ing acts of ownership. Perry v. Weeks, 137 584. C3.) Land under water. 38. The mere flowing of land by a mill-owner is not a disseisin of the owner. Charles s. Monson, etc., Co., (17 P.) 34 70. 39. Semble, that the rule is otherwise as to tide mills. As to adverse possession by per- manently flowing lands, which were originally flowed by tide water, see Tufts s. Charlestown, 117 401; East- ern R. R. s. Allen, 135 13. 40. Entering upon uninclosed flats, when cov- ered by the tide, and using them for navigation purposes, are not a disseisin. Drake s. Curtis, (1 C.) 55 395. 41. Nor is cutting grass, removing sea weed, or the like, when the tide is out. Comm. s. Roxbury, (9 Q.) 75 451; Tappan«. Burnham, (8 A.) 90 65. 42. But erecting and maintaining a wharf, filling up the flats, and the like, constitute an adverse possession of the land so occupied, but not of a portion used for access to and egress from a wharf by vessels. Tyler s. Hammond, (11 P.) 28 193; Wheeler s. Stone, (1 C.) 55 313; Nichols s.Boston, 98 39; Boston s. Richardson, 105 351. 43. The erection of a building on piles is a disseisin of the owner, as to the land actually covered, but no more. Boston Mill Corp. s. Bulfinch, 6 229. (4.) Effect of a grant or an agreement for a grant. 44. Entry and possession under a grant, al- though the grantor had no title, or the grant is void, constitute a disseisin; and the grant is evi- dence of the nature and extent of the claim of the disseisor. Marston s. Hobbs, 2 433; Higbee s. Rice, 5 344;. Warren s. Childs, 11 222; Milton s. Milton Parish, (10 P.) 27 447; Melvin s. Locks, etc., (5 Met.) 46 15; Bellis s. Bellis, 122 414. 45. So if the grant is by parol only. Sumner s. Stevens, 6 337. 46. And a conveyance of all his right and title by a tenant for life, with a covenant that he is seised in fee, passes only the life estate, and an entry thereunder is no disseisin. Hurd s. Cushing, (7 P.) 24 169. 47. Entry under an agreement for a deed, the consideration being paid', or under an undelivered deed, is a disseisin as against the vendor. Barker s. Salmon, (2 Met.) 43 32; Brown s. King, (5 Met.) 46 173; Motte s. Alger, (15 G.i 81 322; Winters. Ste- vens, (9 A.) 91 526; Ripley s. Bates, HO 161. 48. But where a deed is obtained by_ fraud, and possession is not taken, there is no disseisin. Smithwick s. Jordan, 15 113. _ 49. A parol agreement establishing a division line between adjoining owners, and possession thereunder, are a disseisin. Boston & W. R. R. s. Sparhawk, (5 Met.) 46 469. (5.) Occupation of a part only. 50. Where the disseisor built two shops, and the occupants occasionally used the adjoining ADVERSE POSSESSION, III, (1), (2), (3). 17 land for the purposes of their trade, this was a disseisin of only the part covered by the shops. Poignand v. Smith, (8 P.) 25 272. 51. Where the land is inclosed by a river, fence, or road, and it is occupied as nearlyto the inclosure as convenient, this is, if so in- tended, an occupation of the whole, although part is left uncultivated. Allen?). Holton, (20 P.) 37 458. See, also, ante, arts. 42, 43. III. Effect. (1.) Title acquired. 52. Uninterrupted adverse possession, for twenty years or more, raises a conclusive pre- sumption that the possessor had a deed, convey- ing title in fee simple. Comm. v. Dudley, 10 403; Melvin v.- Locks, etc., (17 P.) 34 255; Barker v. Salmon, (2 Met.) 43 32; Brattle Sq. Ch. it. Bullard, (2 Met.) 43 363; Boston & W. R. R. v. Sparhawk, 1 5 Met. ) 46 469; Sumner ». Stevens, (6 Met.) 47 337; Locks and Canals -o. Nashua, etc., R. R., 104 1; Johnson v. Bean, 119 271; Rawson i>. Putnam, 128 552. 53. An entry by the disseisee, merely to ascer- tain if there is any evidence of adverse occu- pation, does not interrupt the disseisor's adverse possession. Bowen v. Guild, 130 121; qualifying Brickett v. Spofford, (14 G.) 80 514. 54. If, when the owner was disseised, he was subject to no disability, a subsequent disability, occurring after a reasonable time within which to assert his right, does not affect the running of the adverse possession. Allis v. Moore, (2 A.) 84 306; Currier ». Gale, (3 A.) 85 328. [As to disability, see 1 E. S., Ch. 119, § 5; G. S., Ch. 155, §6; P. S., Ch. 197, § 9.] 55. A disseisin is purged by abandonment of possession, or a consent to hold under the dis- seisee. Small v. Procter, 15 495. 56. But an abandonment by one of two dis- seisors, tenants in common, does not enure to the benefit of the disseisee, but to the benefit of his co-tenant. Allen v. Holton, (20 P.) 37 458. [As to the effect under the act, 32 H. VIII, Ch. 33, now superseded by statute, of the death of a dissei- sor, or of one of two joint tenants, in possession as disseisors, see Putney ». Dresser, (2 Met.) 48 583; Tolman v. Sparhawk, (5 Met.) 46 469.1 57. Where the circumstances raise a doubt as to character of the supposed interruption, the question, whether the adverse possession has been continuous or has been interrupted, is for the jury. » Stevens*. Taft, (11 G.) 77 33; Bowen v. Guild, 130 121. <2.) Conveyance by disseisee. 58. A conveyance by a disseisee to a third person, is so far unlawful and void, as against the disseisor, that it gives- the grantee no right of action or of entry, nor does it enable him to justify in an action of trespass. Porter v. Perkins, 5 233; Everenden Vol 1—3 v. Beaumont, 7 76; Small r. Procter, 15 495; Brinley v. Whiting, (5 P.) 22 348; Boston and W. R. R. v. Sparhawk, (5 Met.) 46 469; Foster ». Abbot, (8 Met.) 49 596; Allen ». Taft, (6 G.) 72 552; Barry j). Adams, (3 A.) 85 493; Loud «. Darling, (7 A.) 89 205; Dadmun v. Lamson, (9 A.) 91 85; Sohier v. Coffin, 101 179. 59. By statute, the disseisee may devise the land; but formerly he could not. Poor n. Robinson, 10 131; Ward v. Fuller, (15 P.) 32 185. 60. But the disseisee's deed is good between the parties; and if the grantee therein obtains possession within twenty years after disseisin, he can defeat an action by the disseisor, although it is a mere quit claim. Wade c. Lindsey, (6 Met.) 47 407; Cleaveland e. Flagg, (4 C.) 58 76; Far- num i). Peterson, 111 148; McMaho'n ». Bowe, 114 140; Snow v. Orleans, 126 453; Rawson v. Putnam, 128 552. 61. And the grantee may maintain an action to recover the land, in the name of the grantor, even against the disseisor. Wade v. Lindsey, (6 Met.) 47 407; Farnum v. Peterson, 111 148. 62. So, also, the grantee's deed to the dissei- sor is a release of all the disseisee's rights; but his executors cannot thus release. Poor v. Robinson, lO 131 ; Farnum v. Peterson, 111 148. 63. If a disseisee re-enters before his right of entry_ is lost, his deed is good, even against the disseisor. Knox«. Jenks, 7 488; Oakess. Marcy, (10 P.) 27 195; Warner v. Bull, (13 Met.) 54 1. 64. But the entry must be effectual, not merely to examine or show the property. Brickett ». Spofford, (14 G.) SO 514. [See, however, Bowen v. Guild, 130 121.] (3.) Oilier matters. 65. A disseisee cannot maintain an action for use or occupation, or trespass, or to recover for trees cut upon the land. Codman v. Jenkins, 14 93; Allen v. Thayer, 17 299; Bigelow «. Jones, (10 P.) 27 161. 66. But after re-entry he may sue for inter- mediate trespasses. Taylor v. Townsend, 8 411; per Pab- keh, J., p. 415. [See, also, Trespass, II, (1).] 67. If a disseisee, whose right of entry, but not his action, is barred by the statute of limit- ations, enters and holds possession, he may set up his ancient title as a defence in a writ of entry by the disseisor. Wade ». Lindsey, (6 Met.) 47 407; Cleaveland v. Flagg, (4 C.) 58 76. 68. So if a disseisee enters and gets posses- sion peaceably, he may maintain trespass against the disseisor for a subsequent entry. Putney v. Dresser, (2 Met.) 43 583: Tyler v. Smith, (8 Met.) 49 599. 18 AFFIDAVIT— AGENCY, I, (1). Affidavit. 1. Of merits; statute requiring it repealed, St. 1870, Ch. 68. See Hunt v. Lucas, 99 404. [Of no defence, to advance c rase for trial, see Trial, I. Fir other matters relating to affidavits, see Deposition ; Evidence ; Exception.] Affinity. [See Judge ; Jury ; New Trial, III, (1).] Affray. [See Eiot.] Affreightment. [See Bill of Lading; Carrier,I;III; Shipping, III, (2)..] Agency. I. Agent's Power and Authority. (1.) How conferred; evidence thereof. (2.) Extent, general and special agency. (3.) Delegation. (4.) Revocation. (5.) Joint agents. II. Ratification. (1.) Effect. (2.) Sufficiency. III. Principal and Agent's mutual Rights and Liabilities. IV. Rights and Liabilities as respects others. (1.) Principal s rights and liabilities. (2.) Agent's .rights and liabilities. V. Particular Kinds of Agency. (1.) Factor; consignee, commission merchant. (2.) Broker. [For other cases relating generally to the law of agency, see Assumpsit ; Contract. For other par- ticular kinds of agency, »ee as follows : A partner as agent for che firm, Partnership, II ; an auctioneer as agent for purchaser and seller, Auction and Auc- tioneer ; an insurance agent in matters relating to policies, losses, etc., Insura-nce, I, (5) ; a master or sup -re - rgo in matters relating to a vessel, Shipping, II, (I) ; II (2) ; an officer of a corporation, Bank, IV Corporation, IV; Insurance Company, II, (1) Town, III, (3).] I. Agent's Power and Authority. CD How conferred: evidence thereof. 1. Unless a statute requires a writing, an oral authority to an agent is sufficient for any act, except the execution of an instrument required to be sealed. Pratt v. Putnam, 13 361; Skinner v. Brewer, (4 P.) 21 468; Gomm. v. Griffith, (2 P.) 19 11; Shaw v. Nudd, (8 P.) 25 9. 2. If an agent, having only oral authority, affixes the principal's se^al to an instrument, not required to be sealed, the principal is bound. Stockbridge v. W. Stockbridge, 14 257; Tapley v. Butterfleld, il Met.) 42 515; Cook v. Gray, 133 106. See, however, Banorgee v. Hovey, 5 11; Kimball v. Tucker, lO 192^»Warring v. Williams, (8 P.) 25 322. 3. Where a seal is required, either the agent's authority must be under seal, or he must exe- cute the instrument in the presence of his principal. Banorgee v. Hovey, 5 11; Gardners. Gardner, (5 C.) 59 483. 4. Semble, that this rule does not apply to the execution of an instrument by an officer of a corporation. Hutchins ». Byrnes, (9 G.) 75 367 5. An agency cannot be proved by the decla- rations of the agent. Hart ■». Waterhouse, 1 433; Haney v. Donnelly (12 G.) 78 361; Baker v. Gerrish, (14 A.) 96 201. 6. Nor can the extent of the agent's powers be so proved. Mussey v. Beecher, (3 C.) 57 511; Stollenwerck v. Thacher, 115 224. 7. Upon the issue, whether a third person had authority to order goods for the defendant from the plaintiff, evidence is admissible that the cases were marked with the defendant's name and address, and that the plaintiff sent him bills of parcels, and wrote him letters demand- ing payment, to which no answers were made. Sturtevant v. W allack, 141 119. 8. An agent's authority may be shown, pre- sumptively or conclusively, as justice requires, by the assent of the principal to previous acts of the same nature, purporting to be done by him as the latter's agent. Kelley v. Lindsey, (7 G.) 73 287; Roche v. Ladd, (1 A.) 83 436; Bragg v. Boston&W.R.R.,(9A.) 91 54; Lynde- borough Glass Co. v. Mass. Glass Co., Ill 315; Reed v. Ashburnham R. R., 120 43; Lovell v. Williams, 125 439. 9. For cases where previous acts were held to be insufficient to prove agency, see Paige v. Stone, (10 Met.) 51 160; Gould v. Norfolk L. Co., (9 C.) 63 338; Temple v. Pomroy, (4 G.) 70 128; Wil- liams v. Robbins, (16 G.) 82 77; Green- field Bk. v. Crafts, (2 A.) 84 269. 10. An agent's authority may in like manner be shown, by the knowledge of the principal that he was assuming to act as the latter's agent, and the latter's tacit acqueisance in his so doing. Erick v. Johnson, 6 193 ; Tozier v. Crafts, 123 480; Arnold v. Spurr, 130 347; Shaw v. Hall, 134 103. 11. For other cases, as to the sufficiency of particular acts to show an agency, see Hatch v. Smith, 5 42; Humphrey ». Kingman, (5 Met.) 46 162; Eldridge v. Benson, (7 C.) 61 483; Merrick «. Plum- ley, 99 566, Newman v. British, etc., S. S. Co , 113 362; Newhall ». Hamil- ton, 128 463, Worden». New Bedford, 131 23; Richmond Iron Works «. Hay- AGENCY, I, (2). 19 den, 132 190; Atkins v. Equitable Ass. Soc, 132 895; Frost v. Domestic S. M. Co., 133 563; Thomas*. Wells, 140 517. 13. Where, upon a sale of bank stock, the agent for the seller gives the purchaser his own agreement, to be accountable for the dividends until the transfer of the stock, the writing makes him the agent of the purchaser to receive the dividends. Cropper v. Adams, (8 P.) 25 40. 13. An agreement between the seller and pur- chaser of chattels, and a person to whom the purchaser has transferred the same, that the seller shall have a lien for the unpaid purchase money, does not make the purchaser the agent of the transferee to execute a mortgage on the chattels. Hyde v. Boston & B. Co., (21 P.) 38 90. 14. The fact that A and B intended that B should do all the work and receive all the profits, under A's contract with C, and that B did so, does not make A the agent of B, or render B liable upon the contract. Pratt v. Tuttle, 136 233. 15. Delivery by a wife to her husband of a check payable to a third person's order, does not necessarily make him the agent to receive the money. Hunt v. Poole, 139 224. ! (2.) Extent; general and special agency. 16. A lessee of chattels, who agrees to replace lost or damaged articles, by purchasing in the lessor's name, is not the hitter's agent to pur- chase on credit. Stiles v. Emerson, (17 P.) 34 326. 17. One who hires a chattel, with authority to sell it, has no power to mortgage it. Stevens v. Cunningham, (3 A.) 85 491. 18. Possession and apparent ownership, with the true owner's assent, gives no authority to sell or mortgage a chattel. Nichcrson v. Darrow, (5 A.) 87 419. 19. An agent to sell a chattel has no authority to warrant its condition or quality. Upton v. Suffolk Co. Mills, (11 C.) 65 686; Blood «.' French, (9 G.) 75 197. 20. When a limited authority is made known to third persons, they are bound to know its extent Snow v. Perry, (9 P.) 26 539; Mur- dock v. Mills, (11 Met.) 52 5; Butman v. Bacon, (8 A.) 90 25; Stollenwerck i>. ' Thacher, 115 224. 21. But where the principal has, by his con- duct, held out the agent to the plaintiff, as hav- ing authority to do the particular act, or by acts or silence has given the plaintiff reasonable cause to believe that he had such authority, he is bound, although in fact the authority did not extend so far. Odiorne v. Maxcy, 13 178; Green v. Clay, (10 A.) 92 90; Bird v. Daggett, 97 494; Taft v. Baker, 100 68; Law- rence v. Jewis, 133 561, Byrne «i. Massasoit P. Co., 137 313. 22 But the agent's own representations as to the extent of his authority do not alone bind the principal Mussey v Beecher, (3 C.) 57 511. 23. One authorized to solicit orders, who is allowed a commission upon sales effected through him, is not empowered to make sales or receive pay for sales made. Clough v. Whitcomb, 105 482. 24. One authorized to assist an absconding , debtor, "in the settlement of his affairs," cannot pledge articles as security to a creditor. Swett v. Brown, (5 P.) 22 178. 25. A general power to sell goods authorizes a sale upon the usual terms of credit. Etheridge v. Binney, (9 P.) 26 272. 26. And a general power to buy goods authorizes a purchase on the principal's credit, if he does not furnish the agent with funds. Sprague e. Gillett, (9 Met.) 50 91. 27. But an agent to purchase, or to manufac- ture, or to advance money, has no authority to give a negotiable note or bill of exchange. Emerson v. Providence, etc., Co., 12 237; Webber v. Williams College, (23 P.) 40 302; Taber «. Cannon, (8 Met.) 49 456; Paige e. Stone, (10 Met.) 51 160; Gould i>. Norfolk L. Co., (9 C.) 63 338; Torrey v. Dustin, etc., Ass'n, (5 A.)- 87 327. 28. Unless it is indispensable to enable him to carry on the business. . Tappan v. Bailey, (4 Met.) 45 529; Temple v. Pomroy, (4 G.) 70 128. 29. A power of attorney to sell real property authorizes the agent to execute a deed, convey- ing title in fee, with a eouenant against the grantor's acts. Ward v. Bartholomew, (6 P.) 23 409; Alger «. Fay, (12 P.) 29 322; Valentine v. Riper, (22 P.) 39 85; Burrill v. Na- hant Bank, (2 Met.) 43 163. 30. And such a power of attorney, with a general clause, authorizes the insertion of a cov- enant of warranty in the deed; but it does not authorize the execution of a mortgage. Wood ii. Goodridge, (6 C.) 60 117; Bronson v. Coffin, 118 156. 31. For a ruling that a Roman Catholic bishop, in whose name the title to church prop- erty stands, is not liable for money borrowed by the pastor of a particular church, for the use of the church and in its name, see Leahey v. Williams, 141 345. 32. For other rulings as to the extent of an agent's power, under particular circumstances, or under particular words used in conferring the power, see Brown ». Bull, 3 211; Hyde v. Cross, 4 404; White B.WestportC. M. Co., (IP.) 18 215; Tripp v. Swanzey Paper Co., (13 P.) 30 291; Drown v. Pawtucket Bank, (15 P.) 32 88; Cummings «. Sargent, (9 Met.) 50 172; Murdock v. Mills, (11 Met.) 52 5; Shaw®. Stone, (1 C.) 55 228; Nash v. Drew, (5 C.) 59 422; Munroen. Holmes, (5 A.) 87 201; Nickerson v. Darrow, (5 A.) 87 419; Kent ». Bornstein, (12 A. ) 94 342; An- derson v. Bruner, 112 14; Amory. ». Kannoffsky, 117 351; Kinsman v. Kershaw, 119 140; Caswell ». Cross, 120 545; Boynton v. Lynn Gas L. Co., 124 197; Hood v. Adams, 128 207; Wright v. Herrick, 128 240; Lovejoy «. Middlesex R. R. 128 480; Smith v. Moore, 134 405. 20 AGENCY, I, (3), (4), (5); II, (1). (3.) Delegation. 33. An agent's partner has no power to receive money for the principal. Brown v. Bull, 3 211. 34. In general an agent's authority cannot be delegated to another. Emerson n. Prov. HatM. Co., 12 237. Brewster v. Hobart, (15 P.) 32 302. 35. The rule extends to boards, committees, etc., who authorize one of their number to exercise their power. Stoughton v. Baker, 4 522; Boylston M. Ass. v. Boston, 113 528. 36. But where, from the nature of the agency, or from unforeseen circumstances, it is necessary to employ a sub-agent, the principal's assent thereto will be implied. Day n. Noble, (2 P ) 19 615; Dor- chester & M. Bk. v. N. E. Bk. (1 C.) 55 177. 37. And where the custom of the place or of the trade is to employ a broker, an agent has power so to do. Darling v. Stanwood, (14 A.) 96 504. 38. A subsequent ratification by the principal validates a delegation of the agent's power. Brewster v. Hobart, (15 P.) 32 302; Hamilton v. Phoenix Ins. Co., 106 395. (4.) Revocation. 39. The death of the principal revokes an agent's power. Lincoln n. Emerson, 108 87. 40. But a change in the direction of a corpora- tion does not revoke the corporation's power of attorney. Northampton Bk. ■». Pepoon, 1 1 288. 41. Where the agent takes a power coupled with an interest, the power cannot be revoked by the principal. Wheeler n. Slocumb, (16 P.) 33 52. 42. Later instructions are a revocation of prior instructions, so far as they conflict. Richardson?). Churchill, (5 C.) 59 425. 43. An agent's authority is not revoked by the mere appointment of another agent with like authority; but senible, that the appointment of the same agent and another person, prevents the first from acting alone. Copeland v. Merc. Ins. Co., (6 P.) 23 198; Davol v. Quimby, (11 A.) 93 208. 44. A revocation does not affect a third per- son, who had previously dealt with the agent, unless he has express or constructive notice thereof. Packer v. Hinckley L. Works, 122 484. 45. A person in whose hands a deed is placed by the grantor, to be delivered to the grantee after the grantor's death, holds it as agent for the grantor, who may revoke it at any time. Hale v. Joslin, 134 310. 46. Where an agent, authorized by parol, has entered into a sealed contract in his own name, the principal, who subsequently revokes and refuses to fulfil, is not liable. Fullam v. West Brookfield (9 A.) 91 1. Overruling, on this point, Damon v. Granhy, P) 19 345. (2P) 19 345 (See oat, IV.] (5.) Joint agents. [See, also, ante, arts. 33, 43, and pott, art. 199.] 47. Where a partnership is appointed agent, either member may act alone. Kennebec Co. n. Augusta Ins. and B. Co., (6 G.j 72 204. 48. But where two or more persons, not partners, are appointed agents, all must act; even a majority will not suffice, unless it is otherwise provided, expressly or by implication. Kupfer v. Augusta Parish, 12 185; Damon n. Granby , (2 P. ) 19 345 ; Parish ii. Cole, (3 P.J 20 232; Copeland v. Merc. Ins. Co., (6 P.) 23 198; Heard n. March, (12 C.) 66 580. 49. The rule does not extend to a body or board, created by or pursuant to a statute, to perform a duty or to execute a power, in which case a majority may act; and semble, that if a. majority meet to constitute a quorum, a major- ity of the quorum may act. Damon n. Granby, (2 P.) 19 345; Sprague v. Bailey, (19 P.) 36 436; Wil- liams v. Lunenburg School Dist., (21 P.) 38 75; Reynolds v. New Salem, (6 Met.) 47 340; Weymouth, etc., F. District v. Norfolk Com'rs, 108 142; Worcester ii. R. R. Com'rs, 113 161. II. Ratification. (1.) Efl'ect. 50. The act of one assuming to be an agent, but done without authority, may be ratified by the principal; and in that case the principal's- liability arises from the ratification. Clement v. Jones, 12 60 ; Pratt ». Put- nam, 13 361; Fisher v. Willard, 13 379; Shaw v. Nudd, (8 P.) 25 9; Emer- son n. Newbury, (13 P.) 30 377; Hewes- v. Parkman, (20 P.) 37 90; Conrad v. Abbott, 132 330; Todd v. Bishop, 136 386. 51. The principal cannot both affirm and deny the validity of the agent's act. If a savings bank officer transfers shares of stock belonging to it to another bank, as security for a loan, and, the loan being unpaid, the latter bank sells the shares, the receivers of the savings bank cannot maintain an action of contract against the other bank, to recover the proceeds. Holden v. Metropolitan Nat. Bk., 138 48. See, also, Pratt n. Taunton Copper Co., 123 110; Machinists' Nat. Bk. n. Field, 126 345; Boston & A. R. R. «. Richard- son, 135 473. 52. And the principal cannot ratify in port, and repudiate the remainder. Churchill v. Palmer, 115 310; Cool- idge v. Smith, 129 554. 53. The ratification will not, by relating back, prejudice a third person, who has meanwhile acquired a right. Sturtevantfl. Robinson, (18 P.) 35 175; Baird e. Williams, (19 P.) 36 381. 54. Nor will it purge the agent's wrongful sale of his principal's property as his own. Peters u. Ballistier, (3 P.) 20 495; Berkshire Glass Co. ».Wolcott,-(2 A.) 84 227; Lewis v. Buttrick, 102 412. 55. But where the agent of a corporation has. given a note in his own name, the corporation, AGENCY, II, (2); III. 21 by ratification, adopts the name as its own, and is liable thereupon. Milledge v. Boston Iron Co., (5 C.) 59 158. 56. One who certifies a forged signature is liable, although the facts will not raise an es- toppel in pais. Greenfield Bank v. Crafts, (4 A.) 86 447; Charles River Bank v. Davis, 100 413; Wellington v. Jackson, 121 157. 57. A ratification by one partner binds the firm. Odiorne v. Maxcy, 15 39. 58. "Where a chattel was hired without au- thority in another's name, and, after he has ratified the transaction, is injured by another's negligence, he may maintain an action therefor. Boynton v. Turner, 13 391. [See, also, ante, art. 38.] (2.) Sufficiency. [See, also, Corporation, VI, (3).] 59. In general, a ratification will not bind the principal, unless made with knowledge, express or constructive, of all the facts. Adams v. Bourne, (9 G.) 75 100; Mc- Intyre v. Park, (11 G.) 77 102; Dickin- son v. Conway, (12 A.) 94 487; Combs *. Scott, (12 A.) 94 493; Thacher v. Pray, 113 291. 60. But a person is presumed to know the ■contents of a written instrument, executed in liis behalf by his agent, if he has notice of the instrument. Coolidge v. Smith, 129 554. 61 . Where the testimony is conflicting,respect- ing an alleged oral ratification of a written in- strument, the question is for the jury. Greenfield Bank v. Crafts, (4 A.) 86 447; Remick«. Sandford, 118 102; St. James Parish v. Newburyport, etc., H. Railroad, 141 500. 62. Silence on the part of the principal, and his failure to disaffirm as soon as he has notice, "will, in general, be sufficient evidence of ratifi- cation. But if the notice is too late to affect his or the third person's rights, it is merely a circumstance to go to the jury. Frothingham v. Haley, 3 68; Amory ^.Hamilton, 17 103; Shaw «. Nudd, (8 P.) 25 9; Thayer «. White, (12 Met.) 53 343; Brigham v. Peters, il G.) 67 139; Greenfield Bk. v. Crafts, (4 A.) 86 447; Durante. Burt, 98 161; Poster o. Rockwell, 104 167; Monitor Ins. Co. ». Buffum, 115 343; Matthews*. Puller, 123 446; Harrod v. McDaniels, 126 413. 63. Bringing an action, founded upon the transaction, is a ratification thereof. Herring v. Polley, 8 113; Pratt n. Putnam, 13 361; Fisher v. Willard, 13 379; Sutton Parish ». Cole, (3 P.) 20 232; West Boylston Man. Co. v. Searle, (15 P.) 32 225; Fiedlers. Smith, (6C.j 60 336. 64. Proceeding in continuation of the trans- action, or accepting any other benefit under the same, is a sufficient ratification, or evidence of ratification, as the case may be. Cushman v. Loker. 2' 106; Clements. Jones, 12 60; Kupfer®. Augusta Parish, 12 185; N. E. Ins, Co. ». Do Wolf. (8 P.) 25 56; French v. Price, (24 P.) 41 13; Haven v. Lowell, (5 Met.) 46 :«: Fisher v. Attleboro' Sch. Dist., (4 C.) 58 494; Merrifield s. Parritt, (11 C.) 65 590; Knight ii. Nelson, 117 458; Sari well i>. Frost, 122 184; Harrod v. McDaniels, 126 413. 65. But proceeding in disaffirmance of the transaction is not a ratification. Peters «. Ballistier, (3 P.) 20 495. 66. Acknowledgment of a conveyance, by (he principal, is a ratification of the agent's execu- tion thereof in the former's name. Bartlett v. Drake, 100 174. III. Principal and Agent's mutual Riqiits and Liabilities. 67. An agent is bound to use reasonable dili- gence and skill, to transact the business for his principal's best advantage ; and if he fails so to do, or deals with himself, or for his own benefit, the principal may recover for any loss that he sustains thereby. Sikes ». Hatfield, (13 G.) 79 347; Greenfield Sav. Bk. v. Simons, 133 415. 68. He is liable in damages for all losses oc- casioned by his breach of duty. Ashley v. Root, (4 A.) 86 504. 69. But not for an honest mistake or error of judgment, if reasonable care is exercised. Barnard v. Coffin, 138 37. 70. If the agent employs a sub-agent to assist him, he is answerable to the principal for the sub-agent's wrong doing, although the principal had knowledge of the employment. Barnard v. Coffin, 141 37. 71. But where one employs an agent to pur- chase land, and the latter buys it for himself, no money being paid by the principal, the latter is without remedy, as the case is within the statute of frauds. Kendall®. Mann, (11 A.) 93 15; Davis Wetherell, (11 A.) 93 19, note; Bar- nard 1). Jewett, 97 87; Fiekett v. Dur- ham, 109 419; Parsons*. Phelan, 134 109; Collins v. Sullivan, 135 461. 72. The act of the agent in dealing for his own benefit may be ratified by the principal, but only with full knowledge of the facts; and ac- cepting the benefit of the transaction, without such knowledge, is not a ratification. Greenfield Sav. Bk. *. Simons, 133 415. 73. The fact that, on another occasion, the principal ratified the agent's act, in violation of his orders, is no defence to an action for such violation. Loehnberg v. Atherton, 141 578. 74. An agent is not a guarantor, and is not liable for a loss incurred through his own mistake in a doubtful matter of law, or a matter of fact, if he acted in good faith, and used due skill and dili- gence. Mechs. Bk. v. Merchants' Bk. (6 Met.) 47 13; Richardson ». Taylor, 136 143. 75. An agent is bound to use due diligence in the execution of his principal's orders, and, if explicit and intelligible, and he is supplied 22 AGENCY, IV, (1). with the necessary means, he has no discretion as to complying therewith. Porter t>. Blood, (5 P.) 22 54; Coker v. Ropes, 125 577. 76. But where he is unable to obey orders literally, he may deviate therefrom; and where unforeseen circumstances render his obedience useless, he may omit altogether to obey. Sanches 1>. Davenport, 6 258;Alsop«. Coit, 12 40; Day «. Noble, (2 P.) 19 615. 77. An agent is bound to account to his principal at all reasonable times. Clark «. Moody, 17 145; Langley v. Sturtevant, (7 P.) 24 2i4; Torrey v. Bryant, (16 P.) 33 528. 78. He is bound to notify his principal of the receipt of money, and to pay over the same on demand; and for failure so to do he is charge- able with interest. Floyd «. Day, 3 403; Hemenway v. Hemenway, (5 P.) 22 389; Dodge i>. Perkins, 9 P.) 26 368; Ashley v. Root, (4 A.) 86 504. [See post, V, (2).] 79. An agent who, having received money to invest, converts it to his own use, is liable for interest from the time of its receipt, without demand. Hill «. Hunt, (9&.) 75 66. 80. An agent, employed to collect an indorsed note, is liable for neglecting to make demand on the maker, so as to charge the indorser. Mech's Bk. v. Merch'ts Bk., (6 Met.) 47 13; Lynn Bk. v. Smith, 132 227. 81. Aliter, if the indorser has paid it with knowledge. Warren Bk. «. Parker, (8 G.) 74 2£1. 82. Or if there is a doubtful question of law, or of usage, as to the time. Mech's Bk. v. Merch'ts Bk. (6 Met.) 4 r . 13. 83. He is liable for unreasonable delay to present a draft, when the drawee failed mean- while. "Whitney v. Merchants U. 'Express Co., 104 152. 84. Where an agent paid a sum to settle a suit against him by his principal, it is for the jury to decide whether the agent's commissions were included or not. Walton v. jildridge, (1 A.) 83 203. 85. Where the agent has necessarily made himself personally liable in pursuing his in- structions, the principal is liable to him for any loss. Greene v. Goddard, (9 Met.) 50 212. 86. But the principal is not liable for the agent's loss, occasioned by unnecessarily ex- ceeding his instructions. Keyes v. Westford, (17 P.) 34 273. 87. As to the presumptions in an action by a principal against his agent, see Boston & W. R. R. v. Dana, (1 G.) 67 83. 88. Where A, having an insurable interest in B's house, takes out a policy in B's name, and, a loss occurring, receives the money, he is liable to B therefor, without a previous de- mand, and cannot show that he intended that the insurance should apply to his own interest. Looney v. Looney, 116 283." IV. Rights and Liabilities as bespects others. (1.) Principal's rights and liabilities. 89. If an agent, intrusted with the custody of a promissory note, receives payment before- maturity, and surrenders the note to the maker, against his principal's instructions, which were known to the maker, the principal may main- tain trover for the note. Kingman v. Pierce, 1 7 247. 90. A person, intrusting a messenger with a package of bank bills, for delivery to another, may recover from one to whom the messenger paid the money for a gambling debt. Mason v. Waite, 1 7 560. 91. But where an agent, having collected his principal's money, paid it to his own lawful creditor, the principal cannot recover, because the money had no ear-mark. Lime Rock Bank v. Plimpton, (17 P.) 34 159. 92. Nor can he recover, where a bill has been thus remitted by the agent, if the creditor has received it and discharged his debt, in good faith without notice. Le Breton v. Peirce, (2 A.) 84 8. 93. Where, however, an agent, intrusted with a promissory note to be discounted for his prin- cipal, has the proceeds passed to his credit, and the money is attached as his property on a trustee process, the bank is liable to the princi- pal, after a Cemand. Merrill v. Bk. of Norfolk, (19 P.) 36 32. 94. As to goods thus attached, see Selkirk v. Cobb, (13 G.) 79 313. 95. Where a person dealing with an 'agent, intrusted with goods for sale, and having no knowledge of the agency, purchases upon an agreement to pay in a particular way, he is not liable to the principal for the value of the goods. Dean v. Plunkett, 136 195. 96. The principal cannot recover the price of intoxicating liquors, where the agent knew, al- though the principal did not know, that the pur- chaser intended to use them to violate the law. Suits. Woodhall,' 113 391. 97. Where in a written contract, or by the signature thereto, it appears clearly that one party is merely an agent, the principal may sue thereupon, whether his name is or is not dis- closed. Buffum v. Chadwick, 8 103; Fail-field u Adams, (16 P.) 33 381; Com'l Bk. «.. French, (21 P.) 38 486; Barney e. Newcomb, (9 C.) 63 46; Eastern R. R. e. Benedict, (5 G.) 71 561. 98. An instrument under seal does not bind the principal, unless it is executed in his name. A signature "A by B " or " B for A," is suffi- cient, if it purports to be A's deed. Fowler v. Shearer. 7 14; Kimball v. Tucker, 10 192; Elwell v. Shaw, 16 42; Damon t>. Granby, (2 P.) 19 345: Copelandc. Merc. Ins. Co., (6 P.) 23 198; Cobb v, Arnold, (8 Met.) 49 398: Brin- ley w.Mann, (2 C.) 56 337; Gardners. Gardner, (5 C.) 59 483; Abbey v. Chase, (6 C.) 60 54; Mussey ». Scott, (7 C> 61 215; Fullam v. West Brookfeld, (9 A.) 91 1; Blanchard v. Blackstone, AGENCY, IV, (1). 23 102 343; Haley v. Boston B. Co., 140 73. [See, however, Wood v. Goodridge, (6 C.) 60 117: commented on in Merrifield v. Farritt, (11 C.) 65 590; and Huntein. Giddings, 97 41.] 9S. The Commonwealth forms an exception, its deed may be in the agent's name; Ward ®. Bartholomew, (6 P.) 23 409. 100. But the principal may sue and be sued upon a simple contract, either oral or in writ- ing, made by the agent in his own name, although the other party was then ignorant of the agency. N. E. Ins. Co. «- De "Wolf, (8 P.) 25 56; Ilsley ®. Merriam, (7 C.) 61 242; Eastern Railroad ®. Benedict, (5 G.) 71 561; Barry v. Page, (10 G.) 76 398; Lerned ®. Johns, (9 A.) 91 419; Hunter v. Giddings, 97 41; Exchange Bk. ®. Rice, 107 37; Cutter ®. Demmon, 111 474; National Ins. Co. ®. Allen, 116 398; Byington e. Simpson, 134 169. 101. And when the contract is signed " B by C," parol evidence is admissible to show that B was only A's agent, and to charge A accord- ingly. Lerned ®. Johns, (9 A.) 91 ,419. 102. But where the agent, at the time of making a written contract, discloses his princi- pal's name, but the contract is made in the agent's name, the agent, and not the principal, is liable upon it. Steamship Bulgarian Co. v. Merchants' Trans. Co., 13S 421 ; Silver ®. Jordan, 136 319. See, also, Pratt ®. Tuttle, 136 233. 103. And although the contract is under seal, if a seal is unnecessary, it may for this purpose be rejected as surplusage. Cook ®. Gray, 133 106. 104. A recovery of judgment against the agent, by one knowing that he acted as agent, bars an action against the .principal upon such a contract. Kingsley v. Davis, 104 178. 105. The agent may also sue upon a contract made in his name; and tenable, that a set off ■against the principal should be allowed in such an action. Van Staphorst «. Pearce, 4 258; Royce ®. Barnes, (HMet.) 52 276; Ilsley v. Merriam, (7 C.) 61 242; Colburn ®. Phillips, (13 G.) 79 64. 106. But where a contract of sale was nade in the principal's name, the agent cannot sue the purchaser upon it; although the goods were forwarded through him, and he sent the pur- chaser a bill for the price in his own name, and the agent was in truth a factor eld credere.' Borrowscale ®. Bosworth 99 378. 107. And where the stipulations in the body of the contract refer to the principal's acts, naming him, the principal only can sue there- upon, although it is signed by the agent as such. Gilmore ®. Pope, 5 491; Taunton, etc., Turnpike v. Whiting, lO 327; Lamson, etc , Co. v. Russell, 112 387; Cutler ®. Ashland, 121 588; Good- enough ®. Thayer, 132 152; Terry ®. Brightman, 132 318. 108. Under the act of congress, a seaman's shipping contract, although made with the agent, can be enforced only by the master. Fogg ®. Sinclair, (5 C.) 59 478. 109. Negotiable promissory notes and bills of exchange form an exception to the rule, that a principal may sue or be sued, where the con- tract is executed by the agent in his own name. Stackpole ®. Arnold, 11 27; Bradlee «. Boston Glass Man., (16 P.) 33 347; Bedford Com'l Ins. Co. v. Covell, (8 Met.) 49 442; Taber ®. Cannon, (8 Met.) 49 456; Shaw ®. Stone, (1 C.) 55 228; British A. Bk. ® Hooper, (5 G.) 7 1 567; Bass®. O'Brien, (12 G.) 78 477; Brown ®. Parker, (7 A.) 89 337. 110. But where the principal is named in the body of the instrument, or where the signature names or designates the principal, although signed "A for B," "A, agent," "A, treasurer," or the like, the instrument binds the principal, and not the agent. The same rule applies to an indorsement. Long ®. Colburn, 11 97; Emerson®. Prov. Hat Man. Co , 12 237; Ballou ®. Talbot, 16 461; Hartford Bk. v. Barry, 17 94; N. E. Ins. Co. ®.De Wolf, (8 P.) 25 56;Folger® Chase, (18 P.) 35 63; Rice ®. Gove, (22 P.) 39 158; Fuller ®. Hooper, (3 G.) 69 334; Draper i>. Mass. Steam H. Co., (5 A.) 87 338; Barlow v. Cong. Soc, (8 A.) 90 460; Carpenter ®. Farnsworth, 106 561 ; Whitney ®. Stow, 111 368; Chipman v. Foster, 119 189. 111. E converse/, the agent, and he only, is liable upon a note or bill of exchange, made, accepted, or indorsed, by the agent in his own name, with or without the addition " agent," but without naming or designating the princi- pal. Mann ®. Chandler, 9 335; Packard ®. Nye, (2 Met.) 43 47; Fiske ®. Eldridge, (12 G.) 78 474; Williams ®. Robbins, (16 G.), 82 77; Haverhill Ins. Co. v. Newhall, (1 A.) 83 130; Morell s. Cod- ding, (4 A.) 86 403; Slawson ». Loring, (5 A.) 87 340; Tucker Man. Co. ®. Fair- banks, 98 101; Bartlett ®. Hawley, 120 92; Towne ®. Rice, 122 67; Davis ®. England, 141 587. [See, further, post, IV, (2).] 112. A principal is liable for false representa- tions, deceit, and other toits of his agent, com- mitted in the due course of his employment, although contrary to the former's express instruc- tions, of which the injured party had no notice. Lobdell i). Baker, (1 Met.) 42 193; Locke®. Stearns, (1 Met.) 42 560; Kibbe ®. Hamilton Ins. Co., (11 G.) . 77 163; White «. Sawyer, (16 G.) 82 586. 113. And the principal is bound by the agent's false representation of facts, made as of his knowledge, although the agent did not know that they were false. Jewett v. Carter, 132 335. 114. A corporation is, and the agent is not, liable for its agent's acts and omissions in the dischage of his authorized functions; but not where he is acting in a matter to which they do not extend. Thayer ®. Boston, (19 P.) 36 511; Lowell v. Boston & L. R. R., (23 P.) 40 24; .Moore ®. Fitchburg R. R., (4 G.) 70 M AGENCY, IV, (2). 465. See, also, Stockbridge Iron Co. v. Cone Iron works, 102 80; Nickerson v. Dyer, 105 320. 115. And where the agent acts by authority of an officer of the corporation, and the evidence leaves it doubtful whether he was the officer's or the corporation's agent, that question is for the "jury. Delano ». Curtis, (7 A.) 89 470. 116. A principal is also liable, criminally, for his agent's act, if he authorized or assented to it; but his knowledge merely is not sufficient. Coram, v. Nichols, (10 Met ) 51 259; Comm. e. Park, (1 G.) 67 553; Comm. v. Putnam; (4 G.) 70 16; Comm. v. Holmes, 119 195. 117. A principal is liable for goods or services, although the other party took the agent's nego- tiable note therefor, if it is affirmatively proved that he did not take the note in payment; aliter, if not so proved. Maneely t>. McGee, 6 143; Chapman v. Durant, 10 47; Tudor v. "Whiting, 12 212; French v. Price, (24 P.) 41 13; Paige v. Stone, (10 Met.) 51 160; Melledge v. Boston Iron Co., (5 C.) 59 158; Alcock v. Hopkins, (6 C.) 60 484. 118. Where the vendor, after the sale, dis- covers that the vendee was an agent, he may charge either, although he relied upon the agent's credit only, or had the means of ascer- taining that he was only an agent. French v. Price, (24 P.) 41 13; Ray- mond v. Crown & E. Mills, (2 Met.) 43 319; Sartwell ». Frost, 122 184; Lov- ell v. Williams, 125 439. 119. An agent's acts, within his authority, bind the principal, although the agent wrong- fully acted for his own benefit exclusively. Williams v. Mitchell, 17 98. 120. The knowledge of an agent is ordinarily to be imputed to the principal; but an excep- tion arises where the conduct of the agent is such, as to raise a presumption that he would not communicate the fact in controversy; as where it would prevent the consummation of a fraudulent scheme of the agent. Innerarity v. Merchants' Nat. Bk. , 1 39 332. See, also, Atlantic Nat. Bk. v. Harris, 118 147;Loring». Brodie, 134 453; Dillaway v. Butler, 135 479. (2.) Agent's rights and liabilities. 121. One who executes a contract as agent for another, so as to bind the latter only, does not thereby affect his own interest in the sub- ject-matter. Page®. Wight, (14 A.) 96 182. 122 Where an agent, intending to contract for himself, has inadvertently bound his prin- cipal, if he subsequently frees him from liabil- ity, the contract becomes his own. Sloan v. Merrill, 135 17. 123. An agent who contracts in his own name, either" with or without the addition " agent," is liable thereupon, whether his prin- cipal is or is not also liable. Tippets v. Walker, 4 595; Tucker ». Bass, 5 164; May hew ■». Prince, 11 54; Arfvidson v. Ladd, 12 173; Si- rnonds ». Heard, (23 P.) 40 120; Winsor ». Griggs. (5 C.) 59 210; Scaver v. Co- burn, (10 C.) 64 324; Hutchinson «. Wheeler, (3 A.) 85 577; Fullam v. West Brookfield, (9 A.J 91 1; Shattuck «. Eastman, (12 A.) 94 369; Welch v. Goodwin, 123 71. 124. But where a contract, thus executed, contains, in the body thereof, stipulations by the principal, the agent is not liable, even al- though the principal is only designated, not named. Lyon v. Williams, (5 G.) 71 557. 125. So where the contract is oral. Randall v. Doane, (9 G.) 75 408. 126. So where the party knowingly dealt with the agent, as agent for another. Boston & M. R. R. v. Whitcher, (1 A.) 83 497; Southard ®. Sturtevant, 109 390. 127. For a peculiar case, where it was ruled » that an officer of a corporation was personally liable upon a contract, executed by him in his name of office, see Guernsey «. Cook, 117 548. [As to the rights and liabilities of the principal and agent respectively, upon instruments exeauted in the agent's name, see ante, IV, (1).] 128. An agent who executes, in his principal's name, an instrument, under seal or not under seal, is not liable thereupon; but he is liable if it contains his personal covenant. Abbey v. Chase, (6 C). 60 54; Bray v. Kettell, (1 A.) 83 80; Ellis v. Pulsifer, (4 A.) 86 165; Snow D.Orleans, 126 453. 129. So where the agreement is oral. Coggins «. Murphy, 121 166. 130. If a person contracts, as agent for another, without authority so to do, he is per- sonally liable, but not upon the contract; the remedy is by a special action on the case. Long t>. Colburn, 11 97; Ballou v. . Talbot, 16 461; Donahoe v. Emery, (9 Met.) 50 63; Jefts v. York, (4 C.) 58 371; Abbey «. Chase, (6 C.) 60 54; Jefts v. York, (10 C.) 64 ,392. 131. Where an agent for an insurance com- pany delivers a policy to a broker, and receives therefor tlie latter's check, engaging not to send it to the company, until the broker can ascer- tain whether the policy is satisfactory to his principal, he is liable for a breach of the agree- ment. Dobson v. Jordan, 124 542. 132. Where money is paid to an agent under a mistake, which entitles the person paying it to a return thereof, the agent is liable therefor, if it is demanded before he pays it to his principal. Garland v. Salem Bk. 9 408; Jefts o. York, (10 C.) 64 392; Jefts «. York, (12 C.) 66 196. 133. An agent who has settled with his prin- cipal by crediting himself with the principal's debt to a third person, is liable to the latter. Putnam v. Field, 103 556. 134. An agent having the management of a house, who negligently flows a tenant's apart- ments, is liable to the latter. Bell v. Josselyn, (3 G.) 69 309. 135. An agent is liable for money received by him on a forged note, although he has paid it to his principal, if his agency was not disclosed; aliter, if the other party understood, or ought to have understood, that he was dealing with AGENCY, V, (1). 25 the principal, unless the agent personally war- ranted the signature as genuine. Cabot Bank «. Morton, (4 G.) 70 156; Merriam v. "Wolcott, (3 A.) 85 258; Wilder v. Cowles, lOO 487; Worthing- ton v. Cowles, 112 30. 136. An agent for a mill is not liable for maintenance of the dam at too great a height. Brown Paper Co. v. Dean, 123 267. 137. A person who has been induced, by the fraudulent representations of an agent of an in- surance company, to take out a policy and pay the premium, may rescind the contract, and re- cover the premium in an action against the agent. Hedden a. Griffin, 136 229. 138. Where the defendant was a clerk in a shop, but his name appeared on the sign, and the plaintiff sold him goods, supposing him to be the principal, it was held that he was liable. Bartlett v. Raymond, 139 275. T. Particular kinds of agency. [See, also. Insurance, I, (5).] (1.) Factor; consignee; commission merchant, 139. As to whether a person is a factor in a particular case, see Whitney v. Beckford, 105 267; Stol- lenwerck i>. Thacher, 115 224; Thaeher v. Moore, 134 156. 140. Before the statute (G. S., Ch. 54, § 4; P. S., Ch. 71, § 4), a factor or consignee had no authority to pledge, for his own debt, the goods intrusted to him to sell; and if he did so, his subsequent sale to another would pass a good title. Kinder v. Shaw, 2 398; Nowell v. Pratt, (5 C.) 59 111; Mich. St. Bk. v. Gardner, (15 G.) 81 362. 141. "Unless otherwise instructed, a factor may sell upon the usual credit, and take the pur- chaser's note, payable to the order of the factor, ■without becoming responsible for payment thereof. Goodenow v. Tyler, 7 36; D wight v. Whitney, (15 P.) 32 179; West Boyls- ton M. Co. v. Searle, (15 P.) 32 225; Hapgood ». Batcheller, (4 Met.) 45 573; Gorman i>. Wheeler, (10 G.) 76 362. 142. By custom, he may sell together for sev- eral principals, and take one note for the whole; and, seinble, that the note may include sales on Iris own account. In such a case, each con- signor may recover his proportion, notwithstand- ing a usage to the contrary. Dens'ton v, Perkins, (2 P.) 19 86; West Boylston M. Co. v. Searle, (15 P.) 32 225; Hapgood ». Batcheller, (4 Met.) 45 573. See, also, Chesterfield M. Co. v. Dehon, (5 P.) 22 7. 143. If he is instructed to sell for cash only, and delivers the goods to a person in good credit, and next day calls on him for the money, he is exonerated, although the money is not paid, Clark®. Van Northwick, (IP.) 18 343. 144. He has a discretion as to prices, unless •otherwise instructed; and an invoice accompany- ing the goods, with prices, is not per se such an instruction. Mann®. Laws, 117 293. 145. In the absence of specific instructions, a Vol. 1—4 factor or commission merchant is not liable for any loss, incurred by following the usual course of dealing. Potter «. Morland, (3 C.) 57 384; Goldsmith v. Manheim, 109 187; Do- lan a Thompson, 126 183. 146. In unforeseen circumstances, he has a discretion to act; and if he acts in good faith, and with sound discretion, he is not liable. Savage «. Birckhead, (20 P.) 37 167; Greenleaf v. Moody, (13 A.) 95 363. 147. He has no power, in the absence of a custom, to warrant the soundness of goods sold; but where there is such a custom, he has the power. Upton d. Suffolk Co. Mills, (11 C.) 65 586. 148. He may employ a broker to sell, if such is the custom. Darling v. Stanwood, (14 A.) 96 504. 149. Where he sells to himself, the principal may ratify or repudiate the sale. Wadsworth i>. Gay, 118 44. 150. A factor is not obliged to keep the funds of different principals separate; and lie may mingle them with his. Vail «. Durant, (7 A.) 89 408. 151. In the absence of usage, he is not liable for interest, until he is in default for not remit- ting. Ellery®. Cunningham, (1 Met.) 42 112. 152. Where his account shows a balance due from him, it is payable immediately, without demand. Clark v. Moody, 17 145. 153. He is required to account in a reason- able time, without a demand. Langley v. Sturtevant, (7 P.) 24 214. 154. Semble, that he has the right to pay a balance due from him at his own home, but he may waive it. Jellison v. Lafonta, (19 P.) 36 244. See, also, Carter v. Cunningham, (7 Met.) 48 491. „ 155. As to his duty to effect insurance, see Johnson b. Campbell, 120 449. 156. An agency to sell terminates by the in- solvency of the agent; and thereupon debts, arising from sales made in the agent's name, belong to the principal, although the agent has rendered an account, and given his notes for the cost of the goods. Audenried «. Betteley, (8 A.) 90 302. 157„ A factor is bound to surrender the prop- erty in his hands at the termination of his agency, although he has guarantied debts not yet paid. Nickerson v. Soesman, 98 364. 158. A factor is liable to his principal for the seizure of goods, by reason of his breach of the revenue laws. Wellman v. Nutting, 3 434. 159. He is liable, also, for the amount of a note taken by him from a broker, who had ren- dered himself liable by misconduct. Amory *. Hamilton, 17 103. 160. A factor has a lien upon the goods in his hands for a general balance, as well as a particular advance upon them; but not for prior debts, or for torts. Sturgis v. Slacum, (18 P.) 35 36; Baker v. Puller, (21 P.) 38 318. 26 AGENCY, V, (2). 161. He may sell the goods to pay his lien at a fair market price, although below the con- consignor's limit. Parker v. Brancker, (22 P.) 39 40; Shaw v. Stone, (1 C.) 55 228. 162. The factor's lien is a personal privilege, and cannot be set up by his attaching creditor. Holly v. Huggeford, (8 P.) 25 73. 163. If the goods are destroyed by Are, the lien attaches to the insurance money. Johnson v. Campbell, 120 449. 164. He does not release the consignor from liability by waiving his lien. Barrow v. West, (23 P.) 40 270. 165. He has both a lien on the goods, and a right of action against the principal for ad- vances; and he may sue for advances before the goods are sold, after waiting a reasonable time, although he has guarantied the sale. Beckwith v. Sibley, (11 P.) 28 482: Upham v. Lefavour, (11 Met.) 52 174; Dolan ». Thompson, 126 183. 166. If he takes a note, and then releases it, without authority, and the maker fails, he can- not recover against the principal. Deland v. Amesbury Man. Co., (7 P.) 24 244. 167. A factor to purchase has a lien upon the goods purchased; and if he has been paid all that is due for the goods delivered, he has yet a lien upon them for other goods coatracted for. Stevens v. Robins, 12 180. 168. But a factor to sell has no lien, until he has actually received the goods; and an attach- ment by a creditor of the principal, while they are in transitu, will hold. Hall s. Jackson, (20 P.) 37 194; Baker v. Fuller, (21 P.) 38 318. 169. So the factor has no lien, if the princi- pal dies before the goods are actually shipped. Farnum ». Boutelle, (13 Met.) 54 159. 170. So if, after they have come into his pos- session, the possession is constructively trans- ferred to that of the consignor. Robinson «. Talbot, 121 513. 171. If the factor has no lien, the owner may order payment to be made to himself, and main- tain an action for the price, and subsequent payment to the factor is no defence. Kinder v. Shaw. 2 398; Kelley v. Munson, 7 319: Ilsley v. Merriam, (7 C.) 61 242; Huntington «. Knox, (7 C.) 61 371; Barry v. Page, (10 G.) 76 398. 172. But if the factor sells by a gross sale, his own goods and the principal's, the principal cannot sever the contract and recover his share. Roosevelt v. Doherty, 129 301. 173. The owner may follow the price of the goods into the hands of a person, other than the purchaser, if they can be distinctly identified. Kelley v. Munson, 7 319; Chicker ng v. Hosmer, 1 2 183; Merrill v. Norfolk Bk.,(19P.) 36 32. 174. If the factor has exceeded his authority, the principal may recover from the purchaser in trover; or, if the goods have been converted into money by the purchaser, in assumpsit. Kinder v. Shaw, 2 398; Chickering®. Hosmer, 12 183; Peters ®. Ballistier, (3 P.) 20 495; Mich. State Bk. ®. Gar- dner, (15 G.) 81 362. 175. "Where the sale has been rescinded by the principal, although without notice to tha factor, he cannot sue for the price. Robinson ®. Talbot, 121 513. 176. If a loss occurs by a sale on credit, the- factor's right to his commissions depends upon usage; but if he was forbidden so to sell, the loss will offset the commissions. Clark ®. Moody, 17 145; Dodge ®. Tileston, (12 P.) 29 328. - 177. So if he sells for less than the price guar- antied by him. Dalton ®. Goddard, 104 497. (2.) Broker. [See, also. Statute of Frauds, IV, (2).] 178. If a broker employed to purchase or sell upon time, does not in fact purchase or sell, but assumes the contract himself, he cannot re- cover the difference, or his commissions; and if the principal has paid them in ignorance of the fact, he may recover the money back. Pickering v. Dernerritt, 100 416;. Day v. Holmes, 103 306; Lonergan®. Peck, 136 361; Todd ®. Bishop, 136 386. 179. The employment of a broker to buy and hold stock or other property, upon an agreement to furnish a "margin," if it depreciates, does not create the relation of pledgor and pledgee, al- though the customer advances part of the pur- chase money; and if, after the customer's fail- ure to furnish the "margin" on demand, the- broker sells the stock without notice to the cus- tomer, he is not liable for a conversion. Wood®. Hayes, (15 G.) 81 375; Covell ®. Loud, 135 41. See, also, as to th& rights of broker and principal under a "margin" contract, Stone ®. Lothrop, 109 63. 180. But if a broker agrees that, in case a mar- gin is required, he will not sell without draw- ing on his customer, he cannot sell without draw- ing, although his customer is out of the State, and has made no provision to meet the draft. Foote v. Smith, 136 92. 181. Where one employs a broker to nego- tiate a loan of money upon a note payabla to- A's order, and the broker is requested, by one to whom he applies, to inquire and report upon the- security, he does not thereby become the agent of the latter; and his acts, upon subsequently procuring A's indorsement, do not affect the lender. Burlingame v. Foster, 1 28 125. 182. If a broker employed to sell shares of stock, standing in his customer's name, causes, the same to be transferred to his own name or another's, the customer may treat the transfer as a sale; and evidence of a custom so to do i& inadmissible. Parsons v. Martin, (11 G.) 77 111. 183. An order to a broker to buy stock, to be-' delivered to the customer in sixty days from, the purchase, does not authorize a purchase on " buyer's option, sixty days." Pickering «. Demerritt, lOO 416. 184. A broker, who buys stock for another broker, knowing that the latter acts for an un- disclosed principal, cannot hold the stock as against the principal, upon a pledge of the latter's broker for his own debt. Fisher «. Brown, 104 259. AGISTMENT— ALIEN AND CITIZEN. 2T 185. Usage will not confer upon a merchan- dise broker authority to warrant the quality of the goods. Dodd v. Parlow, (11 A.) 93 426. 186. As to the authority of a broker, under particular instructions, see Foster v. Rockwell, 104 167; Wilkin- son v. Churchill, 1 14 .184; Matthews v. Fuller, 123 446. 187. A broker who acts for both parties can- not recover commissions from either, unless his double employment was, at the time, known to both. And usage will not control this rnle. Farnsworth i>. Hemmer, (1 A.) 83 494; Walker v. Osgood, 98 348; Smith v. Townsend, 109 500; Rice i>. Wood, 113 133. 188. But a mere middleman, who brings the parties together, without taking part in the con- tract, may recover commissions from each, if each has agreed to pay him. Rupp v. Sampson. (16 G.) 82 398. 189. A broker employed to sell becomes en- titled to his commission, when he has found and introduced a person, who becomes a purchaser; but not unless a sale is made. A written eon- tract for a sale entitles the broker to his com- mission . Drury v. Newman, 99 256; Tombs i). Alexander, lOl 255; Walker v. Tirrell, 101 257; Loud v. Hall, 106 404; Rice ». Mayo, 107 550; Pearson v. Mason, 120 53; Viaux ». Old South Soc, 133 1; Desmond v. Stebbins, 140 339. 190. But semble, that the broker may recover upon a quantum meruit, if the negotiations fail through the fault of the seller. Cook v. Fiske, (12 G.) 78 491; Walker v. Tirrell, lOl 257. 191. The fact that the negotiations were con- ducted through another, employed by the broker, or that, while the negotiations were pending, the defendant refused to sell, but subse- quently sold, will not prevent the recovery of the broker's commission ; nor will a sale by the principal, for less than the sum originally fixed by him, prevent' the recovery of a commission on the amount of the actual sale. Dexter v. Campbell, 137 198. 192. And where A was introduced by the broker, but refused to purchase; and afterwards a subscription was raised to purchase the prop- erty, and, the sum being insufficient. A was in- duced by the seller to take the title as trustee for the seller, giving a mortgage for the bal- ance, the broker is not entitled to a commission. Viaux s>. Old South Soc, 133 1. 193. Where, after a bargain for land had been concluded between A and B, for a fixed price, it was discovered that the title was defec- tive; and A and B agreed that A should sell at auction, under a power of sale, which would make the title good, and that B should buy thereat; but at the sale C bid a higher price and purchased, A's broker, who had introduced B, is not entitled to a commission. Tombs v. Alexander, 101 255. For other illustrations of the rule, see Newhall v. Pierce, 115 457; Chapin v. Bridges, 116 105; Ward v. Fletcher, 124 224. 194. In general, the seller pays the broker's commission; but the purchaser must pay it, if he employs the broker, and agrees to pay him. Pope «. Beals, 108 561. 195. And the broker can have only one com- mission, although there is a double sale. Follansbee v. O'Reilly, 135 86. 196. A ship broker is not entitled to a com- mission on a sale, because he introduced a pur- chaser, unless he had been employed by the seller; but custom will establish another rule. Winsor «. Dillaway, (4 Met.) 45 221; Cook«. Welch, (9 A.) 91 350; Loud v. Hall, 106 404. 197. Assumpsit will lie by a broker for his. commissions in procuring a charter party, al- though it is under seal, and provides for pay- ment thereof. Bruce v. Parsons, (12 C.) 66 591. 198. Such a broker may recover the full amount, although others have aided, and he has agreed to pay them a part. Bruce «. Parsons, (12 C.) 60 591. 199. Where a broker agrees with another broker, that the latter will aid him, and that the commissions shall be divided, they are partners. pro hoc via; and a fraud, by the broker so brought in, bars the first broker's right to his commissions. Thwing v. Clifford, 136 482. 200. As to a broker's liability for negligence in making a sale, see Barnard v. Coffin, 138 37; Barnard b. Coffin, 141 37. Agistment. [Seo Bailment.] Agreement. [See Contract ; Statute of Frauds.] Agricultural society. 1 . The officers of an agricultural society have no power to fix bounds, within which no' one may enter or pass, unit ss in conformity to their regulations, for any purpose, except as provided in G. S., Ch. 66, g 11; P. 8., Ch 114. § 12. And if they do so unlawfully, they may be convicted of assault and battery, for arresting, without process, a person within such bounds; although he disobeyed their regulations, forcibly resisted their officers, and \v;is there maliciously to interfere with their exhibition. Comm. v. Ruggles, (6 A.) 88 588. Alien and citizen. 1. A person born here before the Declaration of Independence, and not expatriated, is not an alien. Martin v. Woods, 9 377 ; Aiuslie v. Martin, 9 454. 9. A native, who left the country after the commencement of the revolutionary war, and remained with the British till its close, is an 28 ALIENATION— ALTEEATION. alien; but one who returned before the peace of 1783, and continued here, is not. Palmer v. Downer, 2 179; Kilham v. Ward, 2 236. 3 "Where a citizen left the country, before the Declaration of Independence, taking his infant son, and remained without the country, the son, who did not return till after the peace, is an alien. Manchester n. Boston, 16 230. 4. And the U. S. St. of 1802 does not apply to such a case. Manchester B.Boston, 16 230; Charles n. Monson, etc., M. Co., (17 P.) 34 70. 5. A native of Qreat Britain, taken prisoner during the war, or deserting from the British forces, and remaining here after the peace, is a ■citizen. Cummington n. Springfield, (2 P.) 19 394; m re Phipps, (2 P.) 19 394, note. 6 An infant alien cannot be naturalized upon his own petition. Ex parte Le Forestiere, 2 419. 7. The act, St. 1855, Ch. 28, restricting cer- tain courts of the Commonwealth from enter- taining naturalization proceedings, was consti- tutional. In re Stephens, (4 G.) 70 559. 8. By St. 1852, Ch. 29, 86; G. S., Ch. 90, § 38; P. S., Ch. 126, § 1, an alien may take, €tc, real property, and title shall not be invalid on account of the alienage of a former owner. The privilege extends to a nonresident alien. Lumb n. Jenkins, lOO 527. 9 For rulings before the enactment of this ■statute, see Sheaffe n. O'Neil, 1 257; Palmer v. Downer, 2 179, note; Sewall v. Lee, 9 363; Fox «. Southack, 12 143; Comm. n. Andre, (3 P.) 20 224; Scanlan ® Wright, (13 P.) 30 523; Slater e. Nason, (15 P.) 32 345; Wilbur n. Tobey, (16 P.) 33 177; Foss n. Crisp, (20 P.) 37 121; Waugh v Riley, (8 Met.) 49 290; Piper v. Richardson, (9 Met.. 50 155 10. As to the effect of Jay's treaty of 1794, and the subsequent war, see Comm. v. Sheaf e, 6 441; Hutchinson ii. Brock, 11 119; Fox «. Southack, 12 143. 11 An alien may take the benefit of our in- solvent laws. Judd v. Lawrence, (1 C.) 55 531. 12. An alien is liable to taxation, but] he ac- quires no political rights thereby. Op'n of the Justices, 7 523. 13. An alien cannot be a representative to the General Court. Op'n of the Justices, 122 594. [As to the light of an alien fri Sears, (4 G.) 70 95; Doane n. Eld- ridge, (16 G.) 82 254; Fay v. Smith, (1 A.) 83 477; Stoddard v. Penniman, 108 366; Draper v. Wood, 112 315; Stoddard ■». Penniman, 113 386; Cape Ann Nat. Bk. v. Burns, 129 596. 2. As to the sufficiency of the evidence of the authority of a third person to consent, in behalf of the signer of an instrument, to a material al- teration thereof, see Bowker v. Delong, 141 315. 3. But where the alteration was made, with- out the authority of the party holding the same, he may recover upon the instrument in its ori- ginal form. Wade v. Withington, (1 A.) 83 561; Greenfield Sav. Bk.-u. Stowell, 123 196; Cape Ann ]S T at. Bk. n. Burns, 129 596; Drum n. Drum, 133 566. 4. Where a note, with a surety, given to an insurance company, was altered while in its hands by the secretary, without authority, in good faith, and under a mistake of fact, by in- creasing the rate of interest; the company, upon a bill in equity filed by it against the surety, after the maker's failure, was allowed to restore the note to its original condition. Nickerson v. Swett, 135 514. 5. Where the penalty of bond, signed by two sureties, is increased with the consent of the obligor, and it is subsequently executed, in ignorance of the alteration, by two other sure- ties, they are not bound, as they intended to join, with the other two, who were discharged. Howe ». Peabody, (2 G.) 68 556. ALTERATION OF INSTRUMENT. 29 6. A corporation is not bound by a fraudu- lent interpolation in its records, as to third per- sons who have not acted upon the faith thereof. Holden v. Hoyt, 134 181. 7. "Where the alteration does not change the legal effect of the instrument,, it does not affect the latter's validity; as if an appurtenance is added to the description in a deed, which would pass without the alteration. Brown «. Pinkliam, (18 P.) 35 172. 8. Or where blanks are filled up, without changing the purport of the paper. Vose v. Dolan, 108 155. 9. Or an error in the given name of a person is corrected. Hatch v. Hatch, 9 307. 10. Or the obligor's name is inserted in the body of a bond. Smith v. Crooker, 5 538. 11. Or the number of a negotiable bond of the Commonwealth is altered, where they arc not required to be numbered. t'omm. 'i> Emigrant Sav. Bk. , 98 12 12. Or the word " year," added to the year. Hunt v. Adams, 6 519. 13. Or an error in the date corrected. Ames «). Colburn, (11 G.) 77 390. 14. Procuring a person to sign a note as surety, for a new consideration, does not affect the maker. Stone v. White, (8 G.) 74 589. 15. And a memorandum on the back of a note, reducing the rate of interest, does not dis- charge the surety. Cambridge Sav. Bk. v. Hyde, 131 77. 16 An alteration or destruction of a mort- gage or of a deed of land does not affect the interest or title of the mortgagee or grantee, although fraudulently made. Hatch v. Hatch, 9 307; Chessman v. Whittemore, (23 P.) 40 231; Kendall v. Kendall, (12 A.) 94 92. 17. If, however, a deed is executed in blank, or even a party's name left blank, it cannot be filled up after execution, so as to render it valid. Burns «. Lynde, (6 A.) 88 305; Bas- ford v. Pearson, (9 A.) 91 387. 18 But where an assignment of a mortgage was executed in blank, and delivered to an agent, with authority to find a purchaser, in- sert the latter's name, and deliver it, which was done, it was held that the assignment was valid. Phelps v. Sullivan, 140 36. 19. One who executes, as surety, a probate bond in blank, and intrusts it to the principal, to be filled in and delivered, is bound thereby, although the principal inserts therein a larger penal sum, than that agreed upon between him and the surety, and delivers it accordingly, the obligee having no notice, express or implied, of the unauthorized act. Thomas v. Bleakie, 136 568; White v. Duggan, 140 18. 20. Where an assignment of shares of stock in a corporation is fraudulently altered, so as to increase the number of shares assigned, if the corporation negligently suffers the larger amount to be assigned on its book, and issues a new certificate therefor, it is liable to the owner. Bewail v. Boston Water Power Co. , (4 A.) 86 277. 21. Where the name of an attesting witness is added to an unattested scaled instrument, with- out authority, the obligor is discharged, if fraud- ulently done, otherwise not. Adams v. Frye, (3 Met.) 44 .103. 22. But the subsequent attestation of a prom- issory note or bill of exchange, without consent, destroys it, because of the different limitation; aliter, if by consent. Homer v. Wallis, 11 309; Smith v. Dunham, (8 P.) 25 246; Willard v. Clarke, (7 Met ) 48 435. 23. Adding an additional witness's name, though forged, does not affect an attested note. Ford ». Ford, (17 P.) 34 418. 24. For additional rulings as to the effect of particular alterations, see Bachellor r>. Priest, (12 P.) 29 399; Granite R'way v. Bacon. (15 P.) 32 239, Ward t). Allen, (2 Met.) 43 53; Ives v. Farmers' Bk (2 A.) 84 236; Rhoadess. Castner, (12 A.) 94 130. 25 If a promissory note or bill of exchange is altered, so as to discharge a party, a subse- quent bona l de holder is not protected. Greenfield Sav. Bk. v. Stowell, 123 196. 26. Where a party is discharged by alteration, a subsequent restoration of the instrument to its. original form, does not renew his liability . Citizens' Bk. «. Richmond, 121 110. [See, however, Nickerson v. Swett, 135 514; ai> te y art. 4.] 27. But a special indorsement may be restored after erasure. Nevins «. Do Grand, 15 436. 28 Where a writ is altered in a material matter, it cannot be served; and if altered after service by consent of parties, a surety is dis- charged. Browns. Keale,(3 A.) 85 74; Simeon v. Cramm, 121 492. 29. But the fact that part of the date of the writ was written over an erasure, is not pre- sumptive evidence that it was altered after it was issued. Comm. « Martin, 98 4. [See, also, Amendment, II ; Writ, arts. 6, 7.] 30. If the evidence renders it doubtful whether a party assented to an alteration, or whether it was made before or after execu- tion, the question is for the jury. Newman K.Wallace, 1U1 323, Prouty s.Wilson, 123 297. 81. There is no presumption of law, as to the time when an alteration, patent on the face- of the instrument, was made. Agawam Bk. v Sears, (4 G.) 70 95; Ely «. Ely, (6 G.) 72 439; Newman v. Wallace, 121 323. [See, however, Wilbur v. Wilbur, (13 Met.) 54r 405.] 32. And where the interlined words are in <*. different ink and a different handwriting; mnble, that the burden is upon the plaintiff. Wilde v. Armsby, (6 C.) 60 314. Ambiguity. [See Contract, IV; Deed, III; Evidence, VII. (3) ; Statute, II ; Will, II.] 30 AMENDMENT, I; II. Amendment. I. General Rules. II. Amendment of a Whit or other Pro- cess, or of a Return. III. Amendment of a Verdict or Record. IV. Amendment of a Pleading. V. Amendment of other Proceedings. VI Effect. [See, also, Variance, II ; and the titles of tho dif- ferent actions, process, and proceedings.] I. General Rules. 1. Except in matters resting purely in discre- tion, the supreme judicial court has power to review the decisions of the court below, upon the allowance or refusal of amendments. Kincaid v. Howe, 10 203; Dodge v. Tileston, (12 P.) 29 328, Bell «. Austin, (13 P.) 30 90; Slater v. Nason, (15 P.) 32 345; Guilford D.Adams, (19 P.) 36 376; Magount). Lapham, (19 P.) 36 419; Brickett v. Davis, (21 P.) 38 404. 2. Where an action upon a contract was brought against A and B, and the plaintiff dis- continued as to A, and, upon the trial, B had judgment, it was held that an amendment, upon the plaintiff's motion, to substitute A as plain- tiff, was not within the power of the court. Silver v. Jordan, 139 280. 3. Amendments in mere matters of form are not discretionary, but of right, where the court has jurisdiction. Bell v. Austin, (13 P.) 30 90; Boston Overseers v. Otis, (20 P.) 37 38. 4. But a material amendment, during the trial is within the judge's discretion; and his allow- ance or denial thereof cannot be reviewed on exception. Richmond I. Works v. Woodruff, (8 G.) 74 447; Gwynns. Globe L. Works, (5 A.) 87 317; Lang v. Bunker, (6 A.) 88 61; Smith v. Whiting, 100 122; Loo- ney v. Looney, lib 283; Augur S. A. Co. v. Whittier, 117 451. 5. So is the allowance of an amendment to the declaration, on sustaining a demurrer. Webber®. Davis, (5 A.) 87 393. 6. See, further, as to the disoretionary charac- ter of amendments in particular cases, Emery«. Osgood, (1 A.) 83 244; Payson v. Macomber, (3 A.) 85 69; Wolcott ». Buck, 97 36; McCormick v. Carroll, 103 151; Ford *. Ford, 104 198; Harrington v. Harrington, 107 329; Wood v. Bridge Com'rs, 122 394; Winch v. Hosmer, 122 438; Riley v. Williams, 123 506; Buckland v. Green, 133 421; Costelo «. Crowell, 134 280. 7. So the refusal to expunge an amended re- turn is discretionary. In re Sawyer, 136 339. 8. A rule of court, allowing amendments as of course before a joinder in demurrer, does not affect the power of the court to allow them in other cases. Hamilton v. Boiden, 1 50; Walker v. Maxwell, 1 104; Perkins v. Burbank, 2 81; Haynes v. Morgan, 3 2o8; Bullard v. JSantucket Bank, 5 99. 9. A failure to comply with the terms im- . posed upon allowing an amendment, if not ob- jected to at the trial, cannot be raised upon the hearing of a bill of exceptions. Washington Co. Ins. Co. v. Dawes, (6 G.) 72 376; Cannon v. Leonard, (10 A.) 92 247. 10. Under the statute, an amendment may be allowed at any time before final judgment. Home «. Meakin, 1 15 326. 11. After the death of the defendant is sug- gested on the record, a material amendment cannot be allowed, until the appearance of his representative. Smith «. Sherman, (4 C.) 58 408 12. An amendment of the record, to enable error to be taken to the United States supreme court, will not be allowed upon a petition, filed six months after the judgment.- Snell ». D wight, 121 348. 13. If, by consent, an amendment allowed during the trial is not actually filed till after verdict, the point cannot be taken. Horne v. Meakin, 115 326. 14. A rule of court prohibiting an amend- ment, after appearance, except upon terms, does not apply to an amendment, rendered necessary by matters occurring after the commencement of the action. Goodrich v. Bodurtha, (6 G.) 72 323. 15. Semble, that rule 15 of the superior court, prohibiting an amendment, except upon terms, does not apply to a plea puis darrein coniin- uanc?. Burton «. Frye, 139 131. 16 As to the power of a justice of the peace, or a police court, to allow amendments, see Johnson v Stewart, (11 G.) 77 181; Welch v. Damon, (11 G ) 77 383; Hart v. Waitt, (3 A.) 85 532; Keenan v. Knight, (9 A.) 91 257. II. Amendment of a Writ or other Pro- cess, or of a Return. [For parallel cases, see Abatement, II, (l)-l 17. A writ of entry is amendable by striking out some of the co-demandants. Rehoboth «. Hunt, (1 P.) 18 224; Thayer v. Hollis, (3 Met ) 44 369; Kel- ley ». Meins, 135 231, 18. Or, where a demandant has died, by en- larging the claim of the other. Hancock v. Wentworth, (5 Met.) 46 446. 10. Or by correcting the name of the person on whose seisin the demandant counts, or the character of the seisin. Slaters. Nason, (15 P.) 32 345: Means ». Welles, (12 Met.) 53 356; Blanchard «. Kimball, (13 Met.) 54 300. 20. Or so as to change it into an action of ejectment. Fay v. Taft, (12 C.) 66 448. 21. A writ is now amendable, by correcting the time or place at which It is returnable; by inserting a direction to the officer; or by insert- ing, increasing, or reducing the ad damnum. Hearsey «. Bradbury, 9 95; Campbell AMENDMENT, II. 31 v. Stiles, 9 217; Danielson v. Andrews, (IP.) 18 156; Cragin v. Warfield, (13 Met.) 54 215; Kimball u.Wilklns, (2 C.) 56 555; Mclniffe v. Wheelock, (1 G.) 67 600; Ellis. «. Ridgway (1 A.) 83 501; Hamilton v. Ingrahani, 121 562. 22. A writ is also amendable, by correcting a misnomer; inserting a party's name; correcting -the date or the teste; changing the plaintiff or defendant; or supplying the signature of the clerk. Bullard v. Nant. Bk , 5 99; Colcord v Swan, 7 291; Kincaidc. Howe, lO 203; Sherman v. Conn. R. Bridge, 11 338; Parsons v. Plaisted, 13 189; Park- man «. Crosby, (16 P.) 33 297; Goddard *. Pratt. (16 P.) 33 412; Winsor v. Lombard, (18 P.) 35 57; Fitch * Ste- vens, (2 Met.) 43 505; Dodge v. Wil- kinson, (3 Met.) 44 292; Finney v. Bed- ford Ins. Co., (8 Met.) 49 348; Nash v. Brophy, (13 Met.) 54 476; Wight v. Hale, (2 C.) 56 486; Lowell Bap. Ch. v Bancroft, (4 C) 58 281; Fifty Asso- ciates v. Howland, (5 C.) 59 214; Mc- Guire «. Davis, (8 C.) 62 356; Crafts v. Sikes, (4 G.) 70 194; Fay «. Ilaydcn, (7G.) 73 41 ;LangmaicU. Puffer, (7G.) 73 378; Austin D.Lamar Ins. Co., lOS 338; Fenton «. Lord, 128 466; Buck- land «. Green, 133 421 23. Or so as to charge, individually, persons sued in a representative capacity, or as partners. Lester v. Lester, (8 G.) 74 437; John- son v Somerville, etc., Co., (15 G.) 81 216; Hutchinson «. Tucker, 124 240. 24. But on a writ of error, founded on a mis- joinder, the defendants in error cannot strike out the names of those improperly joined. Whiting e. Cook, (8 A.) 96 63. 25. And in an action on an administration bond, for the benefit of one, whose name is in- dorsed on the writ, the indorsement cannot be changed, so as to make the action for all con- cerned. Leland t>. Loud, (16 P.) 33 233. 26. Nor can the ad damnum be increased in a real action, after verdict. Curtis . Thurston, (.23 P.) 40 110. 34. A writ of replevin may be amended, by changing the name of the county, where the taking is alleged to have occurred; by requiring two sureties, instead of one; or by inserting or changing the allegation of value. Poyen v. McNeill, (10 Met.) 51 291; Jaques v. Sanderson, (8 C. ) 62 271 ; Jud- son v. Adams, (8 C.) 62 556; Litchman «. Potter, 116 371. 35. So a return to a writ of replevin may be amended, by correcting the sum named in the appraisers' certificate. , Hammond v. Eaton, (15 G.) 81 186. 36. The supreme judicial court may amend an execution, issued upon a judgment of the common pleas, so as to conform it to the judg- ment. Bishop v. Hall, cited in Wells v. Dench, 1 232; Thatcher «. Miller, 13 270. 37. A writ of entry, or an action of forcible entry, may be amended into an action of eject- ment. Fay v. Taft, (12 C.) 66 448; Merrill v. Bullock, 105 486 38. But a refusal to change the form of an action is not the subject of an exception. Wolcott v. Buck, 97 36. 39. An action at law, brought in the superior court, cannot be changed into a suit in equity by the supreme judicial court, upon an appeal. McRae v. Locke, 114 96. 40. As to making such a change, in the court where the action was originally brought, see Hay ward v Hapgood, (4 G.) 70 437; Darling v. Rofirty, (5 G.) 71 71; George «. Reed, 101 378; Terry v. Brightman, 133 536. 41. An officer's return of an attachment may be amended, even against intervening attach- ing creditors, or a purchaser without notice, by particularly describing the property attached; correcting an erroneous date of the attachment; or by adding his signature, or that he sum- moned the defendant in a trustee process; but not against a bona fide purchaser by describing additional land seized, or giving an earlier date, where there is no memorandum thereof on the writ. Williams v. Brackett, 8 240; Thatcher v. Miller 13 270; Emerson i>. Upton, (9 P.) 26 167; Haven v. Snow, (14 P.) 31 28;Hovey«. Wait, (17 P.) 34 196; Johnsons. Day, (17 P.) 34 106; Baxtei v. Rice, (21 P.) 38 197; Quids' v. Bar- rows, (9 Met.) 50 413. 42. An officer, who has made upon the writ a memorandum of the service, may be allowed to complete his return, after he is out of office. Adams n. Robinson, (1 P.) 18 461. 43. A return to an execution may be amended by the officer, without leave, before it is filed in the clerk's office. Welsh v. Joy, (13 P.) 30 477; Bates v. Willard, (10 Met.) 51 62. 32 AMENDMENT, III. 44. A return to an execution may be amended, by leave of the court, by correcting an error as to the part of land set off to a creditor; or an error by describing the creditor as an appraiser; or by adding that the parcel could not be divi- ded without damage to the whole; or by adding, to a statement that he gave notice to the debtor, by leaving it at his abode, the further fact that lie could not be found in the precinct. Pratt v. Wheeler, (6 G.) 72 520; Mc- Cormickfl. Carroll, 103 151; Browne. Washington, 110 529; Sawyer ». Har- mon, 136 414. 45. But such an amendment cannot be al- lowed, without sufficient proof of the fact. In re Bayley, 132 457. 46 So a return of a, levy upon bank shares may be amended, by inserting a statement that a copy of the execution and return was left with the cashier. Chase v. Merrimack Bk., (19 P.) 36 564. 47. So, in an action upon a receipt for at- tached property, the return may be amended to show when the execution was delivered for service; and that the officer attempted to levy it on the attached property. Parker v. Warren, (2 A.) 84 187. 48. But an amendment to the return cannot be made, which, with other matters untruly stated therein, would show the levy invalid. Wolcott v. Ely, (2 A.) 84 338 ■ 49. A return of a commitment of the de- fendant may be amended at the hearing of a petition for a habeas carpus. Hart v. Adams, (7 G.) 73 581, 50. As to a return of service upon a creditor under the poor debtor's act, see Davis 4i. Putnam, (5 G ) 71 321; Shepherd v. Jackson, (16 G.) 82 599 51. A constable may be allowed to amend his return to a venire, by stating when it was served. Anonymous, (IP.) 18 196 52. Or by adding his signature, even in a capital case. Comm. v. Parker, (2 P.) 19 550. 53 The return to an alternative mandamus is amendable. Springfield *. Hampden Com'rs, (10 P.) 27 59. 54. Where the action is entitled in the writ one of tort, and the declaration contains only counts in tort, an amendment to the writ, act- ding "or contract" after "tort," may be dis- regarded on demurrer. Bishop v. Weber, 139 411. III. Amendment of a Verdict or Record. [See, also, Recognizance, I ; Trial, IV, (4).] 55. If a verdict, as affirmed and recorded, does not state with technical accuracy the find- ing of the jury upon the real issues tried, the court will reject surplusage in it, or in some other mode make it conform to the real issues tried. Porter v Rummery, 10 64; Dryden v. Dryden, (9 P.) 26 546; Lincoln v. Lincoln, -(12 G.) 78 45; Ashton v. Toa- hey, 131 26. 56. So if it does not find the whole issue. Clarke v. Lamb, (6 P.) 23 512; Clark «. Lamb, (8 P.) 25 415; Jones®. Ken- nedy, (11 P.) 28 125. 57. But not if it appears that the jury did? not finally agree upon any one issue. Coffin v Jones, (11 P.) 28 45. 58. A verdict for the plaintiff, in an action for trespass to real property, may be amended by adding nominal damages. Chaffee v. Pease, (10 A.) 92 537. 59. So if the verdict on a writ of entry- awards the plaintiff the entire land, where he; claims only an undivided interest. Morris ». Callanan, 105 129. 60. Where a declaration contains several counts, some of which are defective, a general verdict for the plaintiff may be amended, so as- to apply to the good counts only, if all the evi- dence is proper to sustain them, or if all the; counts are for the same cause of action. Barnard v. Whiting, 7 358; Barnes v. Hurd, 11 59; Sullivan v. Holker, 15 374; Patten v. Gurney, 17 182; Baker- v. Sanderson, (3 P.) 20 348; Cornwall v. Gould, (4 P.) 21 444; Payson t>_ Whitcomb, (15 P. 32 212; Worster v. Canal Bridge, (16 P.) 33 541; Smith v. Cleveland, (6 Met.) 47 332; West v. Platt„ 127 367. 61. But a special verdict deficient in sub- stance "cannot be amended. Walker ». Dewing, (8 P.) 25 520. 62. A verdict may be amended by adding a>. party's name. Riley v. Williams, 123 506. 63. A verdict upon the trial of an indictment, may be amended. Comm. ». Judd, 2 329; Comm. ». Stebbins, (8 G.) 74 492; Comm. «. Lang,. (10 G.) 76 11. 64. The record of a former action betweem the same parties may be allowed to be com- pleted, and judgment entered thereupon, nunc; pro tunc. King v. Burnham, 129 598. 65. A court of record may amend, at any- time, its record, so as to correct mistakes, and. conform the record to the truth; even after error brought. Atkinss. Sawyer, (1 P.) 18 351; Hem- menway v. Hickes, (4 P.) 21 497; Bacon. v. Lincoln, (2 C.) 56 124; Baleh v. Shaw, (7 C.) 61 282; Pay v. Wenzell,. (8 C.) 62 315; Rugg v. Parker (7 G> 73 172; Batty v. Fitch, (11 G.) 77 184; Welch «. Damon, (11 G.) 77 383,-. Pingrees. Coffin, (12 G.) 78 288; Marsh- i>. McKenzie, 99 64. 66. But the court, to which error is brought,, cannot thus amend. Hutchinson «. Crossen, 10 251;. Thatcher v. Miller, 13 270; Varnum ». Bissell, (14 P.) 31 191. 67. The docket of the clerk may be amended in like manner. Tilden®. Johnson, (6 C.) 60 354; Fajr v. Wenzell, (8 C.) 62 315. 68. Upon appeal, an amended record of the* AMENDMENT, IV. 33 district court may properly be allowed to be filed before the trial. Comm. v. Sullivan, 138 191. See, also, Comm. v. Foynes, 126 267. 69. Where the complaint and record, certi- fied by the clerk, upon appeal in a criminal cause, named the defendant Eugene J. Rug- gles, and, upon the trial, the district attorney offered an amended copy, also certified, naming him Eugene J. Sullivan (his true name), it was held that he was propeny tried upon the second copy. Comm. o. Sullivan, 138 - 191. 70. The board of park commissioners may amend the record of its order of assessment, if the same persons are in office, although one has been reappointed. Foster v. Park Com'rs, 131 225. 71. So may the board of county commis- sioners. Andover ». Essex Com'rs, (5 G.) 71 393; Gloucester v. Essex Com'rs, 116 579. 72. So may a magistrate amend the record of examination of a poor debtor. Lincoln v Cook, 124 383. 73. Clerical errors and omissions may be amended in a criminal prosecution, before or during the trial, either in the cause itself, or, by the proper court, in copies of records to be used as evidence. Comm. v. Phillips, (11 P.) 28 28; Comm. o. Magoun, (14 G.) SO 398; Comm. v. Taylor, 113 1. [See, also, Conviction and Sentence.] IV. Amendment of a Pleadeto. 74. A declaration inserted in a writ can be amended only upon leave. Clark v. Ward, (7 G.) 73 409"; Jones v. Ilsley, (1 A.) 83 273. 75. It may be amended upon leave after issue or verdict, a new trial being granted. Williams v. Hingham Turnpike, (4 P.) 21 341; Stanwood». Scovel, (4 P.) 21 422; Hillfl. Haskins, (8 P.) 25 83; Val- entine v. Farnsworth, (21 P.) 38 176; Carlisle v. Weston, (1 Met.) 42 26; Med- buryu. Watson, (6 Met.) 47 246; Ken- dall ».' Carland, (5 C ) 59 74; Cleaves ». Lord, (3 G.) 69 66; Bannon v. Angier, (2 A.) 84 128; Colton v. King, (2 A.) 84 317; Arlington t>. Lyons, 131 328. 76. But not to cure a variance between the allegation and the proofs, when first asked for on the hearing of an exception to a ruling that there was a variance. Cunningham v. Hobart, (7 G.) 73 423. 77 So a scire facias may be amended even after default. Wingate v. Comm., (5 C.) 59 446. 78. A declaration may be amended, in a for- mal matter, at the trial in the superior court, after a full hearing before an auditor. Boston & A. R. R. v. Pearson, 128 445. 79. So it may be amended in the supreme judicial court, after verdict in the common pleas, and exception; or after affirmance of tne ver- dict. Vol. 1—5 Stone v. White, (8 G.) 74 589; Hay- ward a. French, (12 G.) 78 453. 80. A declaration in a real action may be amended in the description of the land. Haynes v. Morgan, 3 208; Hill v. Haskins, (8 P.) 25 83. 81. But not so as to demand a greater interest, or to strike out a parcel, if the defendant has entitled himself to a judgment upon the origi- nal. Slater v. Nason, (15 P.) 32 345; Loud v. Penniman, (19 P.) 36 539. [See, also, ante, II.] 82. In a transitory action, an amendment changing the venue, or adding the venue under a videlicet may be allowed. Munroe v. Cooper, (5 P.) 22 412; Gay «. Homer, (13 P.) 30 535. 83. An amendment, changing the character in which the party sues or is sued, may be granted. Leighton ». Leighton, 1 433; Tenney v. Prince, (4 P.) 21 385; Swan v. Nes- mith, (7 P.) 24 220. 84. New counts, setting forth new causes of action of the same character, may be added to a declaration, either in contract or in tort, in- cluding a qni tarn action. Cuminge v. Rawson, 7 440; Mason ». Waite, (IP.) 18 452; Vancleef v. Ther- asson, (3 P.) 20 12; Ball v. Claflin, (5 P.) 22 368; Morton v Fairbanks, (11 P ) 28 368; Heridia v. Ayres, (12 P.) 29 334; Gay v. Homer, (13 P ) 30 535; ML- chell v. Tibbetts, (17 P.) 34 298; Bis- hop v. Baker, (19 P.) 36 517; Mixer «. Howarth, (21 P) 38 205; Barker v. Burgess, (3 Met.) 44 273; Clark v. Swift, (3 Met.) 44 390; Lobdell e. Baker, (3 Met.) 44 469; Holman ». King, (7 Met.) 48 384; Hill ». Sayles, (12 Met ) 53 142; Kendall v. Carland, (5 C.) 59 74; Smith v. Palmer (6 C.) 60 513; Bald- win v. Soule, (6 G.) 72 321; Goodrich v. Bodurtha, (6 G.) 72 323; Cunning- ham v. Hall, (7 G ) 73 559; Stowe is. Hey wood, (7 A.) 89 118 85. And similarly counts may be stricken out, or restored after having been stricken out, even on review. Prescott v. Tufts, 4 146; Parker •». " Parker, 17 370; White v Snell, (5 P.) 22 425; Halle. Briggs, (18 P.) 35 503; Soule v. Russell, (13 Met.) 54 436; Pol- lard v. Barnes, (2 C.) 56 191; Hay ward t>. French, (12 G.) 78 453. 86. For instances of amendments allowed in the body of a count, see Phillips « Bridge, 11 242; Stone ». Swift, (4 P.) 21 389; Eaton v. Whit- aker, (6 P.) 23 465; Clarke v. Lamb, (6 P.) 23 512; Gay v. Homer, (13 P.) 30 535; Chaffee v. Jones, (19 P.) 36 260; Capron v. Thompson, (3 Met.) 44 59. 87. In a qui tarn action for taking usurious interest, the court refused an amendment, chang- ing the form of the action, after verdict and arrest of judgment. Wiley v. Yale, (1 Met.) 42 553. 88. So in a like action, where the plaintiff had once amended. Hamilton v. Boiden, 1 5Q 34 AMENDMENT, V. 89. But an amendment was allowed, on terms, where the statute of limitations barred a new action. Davis v. Saunders, 7 62. 90. An account annexed, or a bill of particu- lars, is amendable. Babcock v. Thompson, (3 P > 20 446; Dodge v Tileston, (12 P.) 29 328; Tar- bell v. Dickinson, (3 C.) 57 345; Mann «. Brewer, (7 A.) 89 202; Burgess «. J Bugbee, 100 152. 91. A libel for divorce is amendable, by changing the date of the alleged adultery. Tourtelot v. Tourtelot, 4 506. 92. Upon an appeal from a justice of the peace, the common pleas will not allow an amendment, to raise the question of title to real property. Kelley v. Taylor, (17 P.) 34 218. 93. Before the statute, on the trial of a review, a pleading could not be amended without con- sent. Bowman ». Whittemore, 1 242; Dud- ley v. Sumner, 5 438. 94. A plea of usury is amendable, by leave, after the jury is impanelled. Makepeace v. Boyd, 2 430. 95. As to a plea of the statute of limitations, under peculiar circumstances, see Perkins «. Burbank, 2 81; Green v. Gill, 5 379; Brickett v. Davis, (21 P.) 38 404. 96. A plea in abatement is amendable. Hutchinson «. Brock, 11 119. • 97. A new plea was allowed at a hearing in equity, on a bond, after the penalty was ad- judged forfeited. Aiken v. Sanford, 5 494. 98. Upon leave to plead anew, the new plea must be in bar. Moody s.Blake, 6 459; Eaton «. Whit- aker, (6 P.) 23 465. 99. In a peculiar case, the court refused to allow the plaintiff to withdraw his demurrer to .a plea, and file a replication. Dawes ». Gooch, 8 488. 100. A plea in bar, filed since the last con- tinuance, may be allowed to be withdrawn. Rixford«. Brown, ilOP.) 27 30. 101. A replication may be amended, even after special demurrer for the defect. Hartwell v. Hemmenway, (7 P.) 24 117. 102. A rejoinder may be withdrawn, upon leave, and a new rejoinder filed. Rixford «. Wait, (11 P.) 28 339. V. Amendment or other Proceedings. [See, also, the titles of the different proceedings, and Variance, II.] 103. A petition to the superior court for the assessment of damages is amendable at any time. Sanger «. Newton, 134 308. So is a similar petition to the county com- missioners. Grand J. R. R., etc., Co. v, Middlesex Com'rs, (14 G.) 80 553. 104. A petition for assessment of damages to the mayor, etc., of a city may be amended, upon a like petition to the superior court, in the r» anneal nature of an appeal. Porter v. Newton, 133 56. 105. A complaint for neglecting military duty is amendable in a formal matter, but not in a matter of substance. Comm. v. Hall, (3 P.) 20 262; Clapp v. Watson, (8 P.) 25 449; Ex parte Smith, (15 P.) 32 446; Guilford ». Adams, (19 P.) 36 376. 106. So of a complaint to the judge of pro- bate for embezzlement of a decedent's estate. Arnold v. Sabin, (4 0.) 58 46. 107. A complaint in a bastardy case is a civil process, and amendable as such. Bailey v, Chesley, (10 C.) 64 284; Hawes v. Gustin, (2 A.) 84 402; Jones «. Thompson, (8 A.) 90 334. 108. Charges of fraud under the poor debtor's act are amendable Brown v. Tobias, (1 A.) 83 385. 109. The superior court may allow a deposi- tion, taken by a magistrate, to be amended by him at the trial. Hitchings v. Ellis, (1 A.) 83 475. 110. As to amendment of a referee's report, see Noyes «. Noyes, (IP.) 18 269. 111. A rule to pay money into court may be amended, so as to apply to a particular count. Jones v. Hoar, (5 P.) 22 285. 112. A town clerk may amend the records of a town meeting; but not after he is out of office, nor if he was not then the town clerk. Welles v. Battelle, 1 1 477; Taylor v. Henry, (2 P.) 19 397; Hartwell •». Lit- tleton, (13 P.) 30 229; Halleck v. Boyls- ton, 117 469. 113. A bill of exceptions, after it has been allowed and entered in the supreme judicial court, can be amended, but only by the judge who allowed it, upon the authority of the court. McCarren v. McNulty, (7 G.) 73 139; Perry ». Breed, 117 155. 114. If, after entry, the judge amends it with- out the authority of the court, a party who did not assent is entitled to a hearing before the court below. Perry c. Breed, 117 155. 115. If the judge has once passed upon the point proposed to be amended, a motion at the argument that the exceptions stand over for amendment will be denied. Canfield «. Canfield, 112 233. 116. After argument of a bill of exceptions, an amendment is too late. Johnson «. Couillard, (4 A.) 86 446. 117. A bill of exceptions cannot be amended by consent of parties, without the judge's con- sent. Ashley «. Root, (4 A.) 86 504. 118. Upon a bill of exceptions pending in the supreme judicial court, on the ground of vari- ance at the trial, an amendment may be allowed to cure the variance, the plaintiff taking no costs since the trial. Cleaves v. Lord, (3 G.) 69 66; Stone v. White, (8 G.) 74 589; Whitney v. Houghton, 127 527. AMENDMENT, VI— AMUSEMENT. 35 119. But such an amendment cannot he made at the hearing. Cunningham i>. Hobart, (7 G.) 73 423. 120. The report of the location of a highway is amendable by the county commissioners. Andover v. Essex Com'rs, (5 G.) 71 393. 121 A petition for a certiorari to the county commissioners to alter a highway, is amendable. New Marlborough v. Berkshire Com'rs, (9 Met) 50 423. 122. An indictment may be amended, by con- sent, in a case -not capital. Qu., if it can be so amended in a capital case. C'omm. v. Smith, 1 245; Comm. v. Mahar, (16 P.) 33 120. VI. Effect. 123. An attachment is discharged, as to a sub- sequent purchaser or attaching creditor, by an amendment introducing a new cause of action, or adding a party, or increasing 1 the amount. Willis v. Crooker, (1 P.) 18 204; Van cleef v. Therasson, (3 P.) 20 12; Den- ny v. "Ward, (3 P.) 20 199; Putnam v. Hall, (3 P.) 20 445; Ball v. Claflin, (5 P.) 22 303; Fairfield v. Baldwin, (12 P ) 29 388; Freeman D.Creech, 112 180. 124. But an amendment, correcting a clerical error in a party's name or otherwise, or any amendment which does not materially change the character of the action, does not discharge the attachment. Ball v. Claflin, (5 P.) 22 303; Miller v. Clark, (8 P.) 25 412; Haven v. Snow, (14 P.) 31 28; Wight v. Hale, (2 C.) 56 486; Diettrich v. Wolffsohn, 136 335. 125. The same rule holds as to bail, and as to a surety on a bond given to discharge an at- tachment. Seeleyj;. Brown, (14 P) 31 177; Lord v. Clark, (14 P.) 31 223; Wood v. Den- ny, (7 G.) 73 540; Brown ». Howe, (3 A.) 85 528; Tucker v. White, (5 A.) 87 322; Cutter «. Richardson, 125 72; Prince v. Clark, 127 599; Warren v. Lord, 131 560. 126. Such a surety is discharged by a dis- continuance as to one defendant. Tucker v. White, (5 A.) 87 322; Richards *. Storer, 114 101. See, however, Poole d. Dyer, 123 363. 127. Or, in a trustee process, by an alteration in the return day of the writ, after service thereof. Simeon v. Cramm, 121 492. 128. But not by a recovery of judgment in favor of one defendant, and against the others. Knight v. Dorr, (19 P.) 36 48; Leon- ard v. Speidel, 104 356. 129. Where one defendant only is arrested and gives bail, the bail are not discharged by a discontinuance as to the other. Sanderson v. Stevens, 116 133. 130. Nor will bail be disharged by an amend- ment embracing a new demand, if judgment is Tendered on the original demand only. Seeley v. Brown, (14 P.) 31 177. 131. The amendment, by consent of parties and of the trustee, of a defective writ in a trustee process, does not discharge the trustee. Barry v. Hogan, 110 209. 132. After attachment, and amendment by adding a defendant, a now special precept against all the defendants, issued under the sta- tute, is good against an adjudication in bank- ruptcy within four months thereafter. Sullivan 11. Langley, 124 264. 133. The correction of an error in tke name of the defendant does not discharge the trustee in a trustee process; but if, before amendment, he pays the sum to the real defendant, without express or constructive notice of the error, he is discharged. Aliter, where the circumstances charge him with notice. Vermilyea ®. Roberts, 1 03 410; West ii. Piatt, 116 308; Terry v. Sisson, 125 560; Cain v. Rockwell, 132 193. 134. An amendment after service, correcting an error in the name of the trustee, a corpora- tion, does not affect the latter's liability. Sears v. Columbian Ins. Co. , (12 A.) 94 367. 135. Where an amendment to a declaration varies the defence, the defendant may replead, of course. Green v. Gill, 5 379. 136. If a count is stricken out of a declara- tion, the effect is the same as if the declaration had never contained that count. Prescott v. Tufts, 4 146. 137. An amendment to the declaration, al- lowed after trial, will not be considered in de- termining an exception, taken to a ruling, that evidence was inadmissible under the pleadings. Rogers v. Union Stone Co., 130 581. Amicus Curiae. 1. An amicus cuiim is heard only by the leave and for the assistance of the court, and upon a case already before it; he has no control over the suit and no right to take the case up, by bill of exceptions or otherwise Martin v. Tapley, 119 116. 2. Counsel, who has or expects to have a similar cause, will not be heard as amicus curia, where the parties are attended by competent counsel, and the court does not ask for further argument. Nauer n. Thomas, (13 A.) 95 572. JSee, also, Attorney at Law.] Amusement. I. Licensed and othek lawful public Amusements. II. Unlawful Games and othek Amuse- ments. (1.) Generally. (2.) Cock-fighting. (3 ) Billiards and pool. (4.) Bowling. [See, also, Betting and Gaming. As to the suffi- ciency of indictments and complaints, see Indict- ment, VIII (5); VIII, (37).] 36 AMUSEMENT, I; II, (1), (2), (3), (4). I. Licensed and other lawful public Amusements. 1. The proprietor of a hall, to which the pub- lic is invited, is liable to an individual attending, if the hall is not kept in a reasonably safe con- dition, whether he had or had not knowledge of the defect. Currier v. Boston M. H. Ass'n, 135 414. 2. A theatre ticket is only a license to enter; and if, before the holder has entered, the pro- prietor, using no unnecessary force, prevents him from entering, an action of tort will not lie. McCrea ». Marsh, (12 G.) 78 211. 3. And if, after entry, before he has taken his seat, he refuses to depart upon request, and is thereupon removed, without unnecessary force, his only remedy is by an action upon the contract. Burton v. Scherpf, (1 A.) 83 133. 4. A dancing school is not a public show, amusement, or exhibition, requiring a license, although money is taken for admission. Comm. «. Gee, (6 C.) 60 174. 5 Under a statute authorizing the license, by a city, of public amusements, the license need not be in writing. Boston v. Schaffer, (9 P.) 26 415. 6. The legislature may authorize a municipal- ity to exact money for such a license; and, in such a case, an action upon a promise to pay for the license is properly brought in the name of the municipality. Boston v. Schaffer, (9 P.) 26 415. 7. A license to A and B to keep a billiard or pool table is available to each of them, and is valid in favor of A, although B had ceased to have any interest in the business, when it was issued. Hinckley v. Germania Ins. Co., 140 II. Unlawful Games and other Amuse- ments. (1.) Generally. 8 An actor may recover for his services in an unlicensed theatre, unless he knew that the pro- prietor had no license. Roys v. Johnson, (7 G.) 73 162. 9. It is a violation of the statute, to allow per- sons to resort to one's house, for the purpose of playing an unlawful game, although for amuse- ment only. Comm. v. Pattee, (12 C.) 66 501. 10. Such an offence, committed from time to time, is not one continued offence, but several distinct offences, each punishable by the pen- alty. Comm. «. Stowell, (9 Met.) 50 572. 11. Seizure of the stakes, put up to be gam- bled for upon the throw of dice, is larceny, not fraudulently obtaining property by a game, under P. S., Ch. 203, §65. Comm. v. Jenks, 138 484. 12. Under P. S., Ch. 99, § 10, as amended by St. 1883, Ch. 120, one maybe convicted upon a complaint charging, him with being present at an uulawful game, although he was playing the game. Comm. «. Hogarty, 141 106. (2.) Cock-lighting:. [See, also, Animal, art. 17.] 13. Cock-fighting is an unlawful game; and an innholder who permits it on his premises is indictable. Comm. •». Tilton, (8 Met.) 49 232. C3.) Billiards and pool. 14. A licensee of a pool table is liable to the statutory penalty, if he continues to allow its use, after information by the clerk of the town of the revocation of his license by the select- men, although they acted without not ce to him. Comm. v. Kinsley, 133 578. 15. The owner of a building, who fits up a room with a billiard table, and lets it to a ten- ant, who allows it to be used, with the owner's knowledge, for playing billiards for hire, with- out a license, is indictable. Comm. ■». Adams, 109 344; Comm. «. McCarty, 141 420 16. An indictment will not lie against the proprietor of an unlicensed billiard room, for not allowing a negro to play. Comm. v. Sylvester, (13 A.) 95 ' 247 17. Upon a complaint, under the statute, for admitting an infant to a billiard room, without consent of his parent or guardian, it is imma- terial that the infant declared himself to be of age; that the defendant did not know that he was an infant; and that the defendant's ser- vants admitted the infant, in the defendant's ab- sence, and after he had forbidden the infant to enter. Comm. v. Emmons, 98 6. 18. "Where the selectmen refused a license to the keeper of a billiard room, but said that they would not object, as long as he allowed no gambling or liquor selling, the use of the room is illegal, and the lessor thereof cannot recover the rent or the expense of fitting up. Simpson v. Wood, 105 263. C4.) Bowling. 19. The game of bowls is an unlawful game within the statute; and one, not a licensed inn- holder, who, for gain, suffers persons to resort to a building occupied by him, for the purpose of bowling, is punishable under the statute. Comm. v. Goding, (3 Met.) 44 130. 20. But a mere renting of a building to an- other, for that purpose, is' not occupying it, within the statute, although it is contiguous to a building occupied by the defendant. Comm. ■o. Dean, (IP.) 18 387. 21. It is not necessary that there should be any gaming, or betting, to render the game un- lawful. Comm. v. Stowell, (9 Met.) 50 572. 22. The person keeping a place for that pur- pose is punishable, whether he does so on his own account, or as agent for another. Comm. v. Drew, (3 C.) 57 279. 23. Tinder the act, St. 1855, Ch. 429, § 1, an indictment or complaint is good, although it does not allege that the place was kept for gain. Comm. v. Colton, (8 G.) 74 488. 24. That act was constitutional. Comm. v. Colton, (8 G.) 74 488. ANCESTOE— ANIMAL, I; II, (1). 37 Ancestor. [See Descent and Distribution, I ; II.] Ancient lights. [See, references under Light and Am.] Andover Theological Institution. [See Charity, III.] Animal; bird. I. Property; verm Nature. II. Owner's Eights and Liabilities. (1.) Generally. (2.) Under statutes relating to dogs. (A.) B. S., Ch. 58, § 13; G. S., Ch. 88, § 59; P. S., 102,893. (B.> Statutes and municipal by-laws relating to licensing-. III. Killing a mischievous Dog. IV. Cruelty to Animals. V. Game Laws. [See, also, Carrier, I, (9); Perry; Horse; Im- pounding. As to actions lor injuries to animals by insufficient highways, see Highway, VI; by neg- ligence, etc., see Negligence; Railroad, TV, (4); for damages caused by an insufficient fence, see Fence. For criminal proceedings for malicious in- jury, see Malicious Mischief.] I. Property; fer^e Nature. 1. Beasts, thoroughly tamed, and used for burden, husbandry, or food, are property, enti- tled to the same protection as any other goods. But dogs, cats, and other animals, which never wholly lose their wild nature and destructive instincts; and are kept for uses calling those in- stincts into action, or else for the owner's mere whim and pleasure, are the subjects of qualified property only. Blair v. Forehand, 100 136' 2. A dove is ferm naturm, and not the sub- ject of larceny, except when in the care and custody of the owner, as in a dove house, or young in the nest. Comm. v. Chace, (9 P ) 26 15. 3. Semble, however, that if killed by a stran- ger, on the owner's premises, he may have tres- pass; and if afterwards carried away therefrom, the act is larceny. Comm. v. Chace, (9 P.) 26 15. 4. A pea fowl is the subject of larceny. Comm. ». Beaman, (8 G.) 74 497. II. Owner's rights and liabilities. (1.) Generally. [See, also, Horse.] 5. Trespass lies for inciting a dog to worry the plaintiff's sheep; and the fact that the de- fendant knew that the dog was accustomed to bite, is not essential; but it may be matter of aggravation. Fairfield v. Burt, (11 P.) 28 244 6. A man is liable for killing poultry tres- passing on his close, although he has notified the owner of previous trespasses, and that he would kill them if repeated. Clark v. Keliher, 107 406. 7. A person who keeps a vicious and danger- ous animal, domestic or ferm natures, knowing its propensities, is liable for an injury caused by it; although he used care in keeping and res- training it, and although the plaintiff was a trespasser, if there was no contributory negli- gence on the latter's part. Popplewell v, Pierce, (10 C.) 64 509. Lyons ». Merrick, 105 71; Marble v. Boss, 124 44; Linnehan v. Sampson, 126 506. See, however, Hewes v. Mc- Narnara, 106 281. 8. And knowledge that the animal was in the close, and that it was dangerous, is not conclu- sive evidence of negligence, but for the jury. Marble «. Boss, 124 44. 9. If the animal is on the highway without a keeper, the owner is liable, although it was not vicious. Barnes v. Chapin, (4 A.) 86 444 10. The owner of a dog, duly licensed and collared, and confined so as not to do injury, may recover its market value as a watch-dog, from one who killed it on the owner's premises, without being attacked by it, although it was vicious and accustomed to bite. Uhlein v. Cromack, 109 273. 11. An action lies for an injury, done by a dog to the plaintiff, a boy thirteen years old, although he struck the dog, if he exercised such care as could reasonably be expected from his age and capacity. Plumley ». Birge, 124 57. 12. In an action for injury by a dog to a young child, evidence of a shock to his nervous system, causing fear and excitement at the sight of any dog, is competent. Boswell v. Leslie, 133 589. 13. A bill of sale of "one horse, sound and kind," is a warranty of soundness; and the seller is liable, if the animal is permanently lame, although, before the sale, the purchaser knew that it was lame, and the seller refused to give a warranty. Brown v. Bigelow, (10 A.) 92 242. 14. Crib biting, affecting the animal's health, is a breach of a warranty of soundness Washburn v. Cuddihy, (8 G ) 74 430. 15. An allegation that a horse had the glan- ders, at the time of the sale, is sustained by proof that he then had the seeds of the disease. Woodbury ». Robbins, (10 C.) 64 520. 16. Upon an allegation of warranty that a horse was gentle, and a breach that he was un- gentle, the plaintiff cannot recover, because he was not well broken or trained to plough, etc., although the jury may think that such was the intention of the warranty. Bodurtha v. Phelon, (2 A.) 84 347. 17. Game cocks are not implements of gam- bling, within the statute authorizing the seizure of such implements. Coolidge v. Choate, (11 Met.) 52 79. 38 ANIMAL, II, (2); III. (2.) Under statutes relating to dogs. (A.) B. 8., Oh. 58, § 13; G. 8, Oh. 88, § 59; P. 8., Oh. 102, § 93. 18. An action lies, under the statute, for double damages, against the owner of a dog, for attacking a horse on the highway, even although the dog did not leave its master's premises. Sherman i>. Favour, (1 A.) 83 191; Denison v. Lincoln, 131 236. 19. One, who is unlawfully travelling on Sun- day, may maintain an action, under the statute, against the owner of a dog that attacks him. White v. Lang, 128 598. 20. A city is not deemed to be the keeper of a dog, within the statute, which is licensed in the name of the superintendent of the poor- farm, kept at the farm, and fed with food fur- nished by the city for common use there, with the knowledge of an overseer of the poor. Collingill ». Haverhill, 128 218. 21. A street railroad company is liable, under the statute, for damages by a dog, kept at the company's stable, with the express or implied assent of the superintendent. Barrett v. Maiden, etc., E. R. Co-. (3 A.) 85 101. 22. The owner is liable, under the statute, to the parent of a child, for loss of services. McCarthy v. Guild, (12 Met.) 53 291. 23. Contributory negligence must be want of ordinary care, in the person having the charge of a young child, or of such care, on the part of the child, as is usual with children of its age. Munns. Reed, (4 A.) 86 431; Plum- ley v. Birge, 124 57. 24. It is not necessary, in an action under the statute, to aver or prove that the owner knew that the dog was accustomed to bite. Pressey v. Wirth, (3 A.) 85 191. 25. If the injury is done by two dogs, each owner is liable only for the damage done by his dog. Buddingtoni). Shearer, (20 P.) 37 477. 26. The action will not lie for damage done in another State, by a dog kept here. Le Forest v. Tolman, 117 109. 27. The remedy given by the statute includes injury to property. Brewer v. Crosby, (11 G.) 77 29. 28. Judgment will not be arrested, because the declaration does not aver that the act was done against the form of the statute. Mitchell ». Clapp, (12 C.) 66 278. 29. Under the statute, the jury must first compute the plaintiff's damages, on the princi- ple of exact and liberal compensation for his pain and suffering, and then double the sum. Pressey v. Wirth, (3 A.) 85 191. 30. If the declaration avers that the defend- ant was owner and keeper of the dog, the plain- tilt" must prove the fact as averred. Buddingtonc. Shearer, (20 P.) 37 477. 31. If the declaration avers that the dog bit the plaintiff, and the injury was caused by buckles on its muzzle, there can be no recovery. Searles v. Ladd, ltili 5S0. (B.) Statutes and municipal by-laws, relating to licensing. 32. One who purchases an unlicensed dog after April 30, is not liable for the penalty until April 30 thereafter. Comm. v. Brimblecom, (4 A.) 86 584. 33. The owner of an unlicensed dog is not liable, unless he is also the keeper; but the keeper is liable, although he is not the owner. Jones v. Comm., (15 G ) 81 193; Comm. v. Canada, 107 405. 34. The fact that a man applied for. a license, is evidence that he is the owner or keeper, with- in the statute. Comm. v. Gorman, (16 G.) 82 601. 35. Where a man has his dog licensed and registered in one town, and takes the dog to another town, without having the license trans- ferred, and keeps it there four months, he is properly convicted of illegally keeping a dog in the latter town. Comm. 1>. Palmer, 134 537. 36. A complaint for keeping an unlicensed dog, during a specified period, is sustained by proof applying to any part of the period. Comm. v. Canada, 107 405. [As to sufficiency of the complaint, see, also, Comm. v. Thompson, (2 A.) 84 5C7.] 37. As to the sufficiency of the description of the dog in the license, and the effect of a mis- description, see Comm. v. Brahany, 123 245. 38. A municipal by-law, concerning the licens- ing and regulating of dogs, and restraining them from going at large, applies only to dogs kept within the municipality, or to inhabitants, of the municipality. Comm. v. Dow, (10 Met.) 51 382; Comm. «. Chase, (6 C.) 60 £48 39. Such a by-law is not rendered void, as to the part which the municipality might lawfully pass, by a further distinct provision which is ultra vires. Comm. «. Dow, (10 Met.) 51 382. 40. A dog is ' ' going at large " in a town, if he is following the person in charge of him, at such a distance that the latter cannot effectually pre- vent him from doing mischief. Comm. v. Dow, (10 Met ) 51 382. [For cases under G. S., Ch. 88, §C4, repealed by fit. 1864, Ch. 299, § 13, see Chenery v. Hold™, (Hi G.) 8» 125; Osborn v. Lenox, (2 A.) 84 207.] III. Killing a mischievous Dog. 41. A statute authorizing the killing of a dog, without previous adjudication, is constitu- tional. Blair v. Forehand, 100 136. 42. Stat. 1867, Ch. 130, § 7; P. 8., Ch. 102, § 90; allows a private person to kill a licensed dog that has no collar, although he does so before July 1, and no warrant for kill- ing has been issued. Morewood ». Wakefield, 133 240. 43. A constable, to whom a warrant is issued under that section, may enter the owner's dose, and there kill an unlicensed or uncollared dog; and, for that purpose, may reach into an open shed and untie the dog; if no objection is made, he may enter the dwelling house through an open door, to show his warrant, and lead out ANIMAL, IV; Y— APPEAL, I, (1). 39 the dog that has followed him there. But he cannot enter the dwelling house, against the owner's consent, to execute his warrant. Blair v. Forehand, 100 136; distin- guishing Bishop v. Fahay, (15 G.) 81 61 ; and Kerr v. Seaver, (11 A.) 93 151. See, also, Cozzens v. Nason, 109 275. 44. A person, empowered to kill a dog with- out a collar, is liable in trover for converting him to his own use. Cummings v. Perham, (1 Met.) 42 555. 45. A dog without a collar may be lawfully killed, under the act of 1812, if he is out of the owner's inclosure, although he is under his owner's immediate care. Tower v. Tower, (18 P.) 35 262. 46. A dog, at play with his owner's child, upon his owner's land, is not " at large " within G. S., Ch. 8tf, § 58, (now repealed). McAneany v. Jewett, (10 A.) 92 151. 47. The defendant, in an action for unlaw- fully entering the plaintiff's dwelling, and there killing his dog, cannot object to a verdict, be- cause no damages were assessed for the entry. Bishop c. Fahay, (15 G.) 81 61. 48. In an action for killing the plaintiff's dog, where it was found that the dog, having killed the defendant's hens on his premises, and having been driven away, returned, and was killed while going again to the hen-house, the defendant having reasonable cause to be- lieve that the dog was proceeding to kill his hens; it was held that the justification was not made out, for want of a finding that the defend- ant had reasonable cause to believe, that the killing of the dog was necessary to prevent the killing of the hens. Livermore i>. Batchelder, 141 179. 49. Qu., whether the statute takes away the common law remedy. Livermore v. Batchelder, 141 179. IV. Cruelty to Animals. 50. A defendant, convicted on an indictment under the statute, for cruelly over-driving a horse, cannot complain of a charge, that if, in the proper exercise of his own judgment, he thought he was not over-driving the horse, he must be acquitted. Under such an instruction, the jury must consider the defendant's alleged inex- perience, as to the proper treatment of a horse. Comm. ». Wood, 111 408. 51. The offence, contemplated by the statute, may be committed by the owner of the animal or another. If, on the trial, the attention of the jury is directed to the fact that the defend- ant did not own the animal, in such a way that they might have deemed the circumstance ma- terial, a verdict of guilty will be set aside. Comm. v. Lufkin, (7 A.) 89 579. See, also, Comm. v. Whitman, 118 458. [For cases relating to the sufficiency of indict- ments and complaints under the statute, see Indict- ment, VIII, (23).] V. Game Laws. 52. The statute forbidding any person, be- tween specified days, to kill any woodcock, etc. , or to sell, buy, etc., any of such birds, does not apply to woodcock killed in another state. Comm. v. Hall, 128 410. Annuity. [See, Apportionment; Devise and Bequest, III, (2); Trust, 111, (3); IV, (1).] Ante-nuptial agreement. [See Husband and Wife, V: Statute of Frauds, II, (3).] Appeal. I. Appeal to the Supreme Judicial Court. (1.) From the probate court. (2.) From commissioners upon a deceased in- solvent's estate. (3.) From a single justice to the full court. (4.) From the superior court. (5.) In other cases. II. Appeal to the Superior Court. (1.) From the court of insolvency. (See In- solvent, II, (2).) (2.) From a trial justice, or a police, district, or other -inferior court. (3.) In proceedings under the poor debtor's act. (4.) In other cases. III. Security upon Appeal; Sums recov- erable THEREUPON. IV. Practice and Proceedings in the ap- pellate Court and the Court below. V. Appeal in a criminal Cause. (1.) When an appeal lies; how taken; effect. (2.) Papers to be transmitted to the appellate court. (3.) Proceedings upon the appeal. [Pee, also, the titles of the different actions and offences. As to amendments upon appeal, see Amendment ; III, IV. For various rulings, as to the grounds upon "which a new trial, of a cause tried upon appeal, "will or "will riot he granted, see Excep- tion; New Trial.] I. Appeal to the Supreme Judicial Court. (1.) From the probate court. [See. also. Executor and Administrator; Pro- bate Court.] 1. An appeal does not lie to this court from a decree of the probate court, disallowing an ad ministrator's account, because he has not charged himself with a certain item, but not settling the account. Cook v. Horton, 129 527. 2. Or from a decree, authorizing an action upon an administrator's bond. In, re Jones, (8 P.) 25 121. 3. But an appeal lies from a refusal to put such a bond in suit. Bobbins v. Hayward, 16 524. 4. Or from a refusal to allow a petition for a rehearing of a decree to account. Davis v. Cowdin, (20 P.) 37 510. 40 APPEAL, I, (1). Or to allow letters of administration, except upon terms. In re Picquet, (5 P.) 22 65. Or to allow further time for creditors of a deceased insolvent to prove claims. Walker d. Lyman, (6 P.) 23 458. Or to appoint commissioners, on the adminis- trator's representation of insolvency. Bucknam «. Phelps, 6 448. 5. An appeal lies from the dismissal of a peti- tion for partition. Dearborn v. Preston, (7 A.) 89 192. 6. An appeal lies by sureties on the bond of a deceased and insolvent guardian, from a decree settling the guardianship account, and fixing a sum as due to the ward's estate. Farrar d. Parker, (3 A.) 85 556. 7. An appeal lies by a foreign administrator, or by a creditor, but not by a debtor, from a grant of administration. Stebbins «. Palmer, (1 P.) 18 71; Swan v. Picquet, (3 P.) 20 443; Smith v. Sherman, (4 C.) 58 408; Arnold v. Sabin, (4 C.) 58 46. 8. An appeal lies from the allowance of an executor's or administrator's account, by an heir or next of kin, if there is an undisposed of residue; by an administrator de bonis turn; and by the executor, but not the heir, of a de- ceased residuary legatee. Downing v. Porter, 9 386; Smith v. Haynes, 111 346. See, also, Wiggin v. Swett, (6 Met.) 47 194. 9. An appeal lies by the creditor of a spend- thrift, from a refusal to put the guardian's bond in suit. Conant v. Kendall, (21 P.) 38 36. 10 An appeal lies by the creditor of an heir at law from the allowance of a will, devising the real property to another, if he has attached the heir's interest; but not otherwise. Smith ii. Bradstreet, (16 P.) 33 264. 11. An appeal does not lie from the appoint- ment by the probate court of commissioners, upon an estate represented as insolvent. Putney v. Fletcher, 140 596. See, also, Greenwood v. McGilvray, 120 516. 12. The administrator may appeal from a re- fusal to appoint such commissioners. Bucknam ». Phelps, 6 448. 13. An appeal lies from the refusal of leave to bring action upon a probate bond, but not from the grant of such leave. In re Jones, (8 P.) 25 121; Richard- son v. Oakman, (15 G.) 81 57; Rich- ardson v. Hazelton, lOl 108; Bennett «. "Woodman, 116 518. 14. The statute, P. S., Ch. 156, § 9, allow- ing the supreme court of probate to grant leave to appeal, after the expiration of the time so to do, requires proof to be made, not only that there was no default upon the petitioner's part, but that substantial justice requires a revision of the case; and, upon the second issue, vests in the court a very broad discretion. Capen v. Skinner, 139 190. See, also, post, arts. 26, 27. 15. For a case where this discretion was exer- cised upon a contest, as to whether a testator was of unsound mind, see Capen «. Skinner, 139 190. 16. An appeal, by one claiming under a gift causa mortis, does not lie from a decree charging the administrator with the property, and direct- ing it to be distributed, as he is not affected, although he appeared and produced witnesses. Lewis v. Bolitho, (6 G.) 72 137. 17. An appeal lies by a widow, if injuriously affected, from a decree charging a sum upon personalty, instead of realty. Exparte Lee, (18 P.) 35 285; Exparte Kempton, (23 P.) 40 163. 18. An appeal lies by a town, legatee of a fund, from a decree affecting the fund, although it is to be managed for sixty years by trustees, and then goes to the town. Northampton v. Smith, (11 Met.) 52 390. 19. An appeal lies by the purchaser of a re- versionary interest in land of a deceased in- solvent, assigned to the widow as dower. Bancroft «. Andrews, (6 C.) 60 493. 20. An appeal lies by one under guardianship as a lunatic from a refusal to revoke the letters. McDonald i>. Morton, 1 543. 21. An appeal does not lie, by a person claim- ing to own land, from a license to a guardian to sell the ward's interest in the land. Ayer». Breed, 110 548. 22. An appeal lies by the heir presumptive of a lunatic from the allowance of the guardian's account, but not by a collateral relative, as next friend of the luna ic. Penniman v. French, 2 140; Boynton v. Dyer, (18 P.) 35 1. 23. Nor does it lie by the stepmother of minor children, whose parents are dead, and for whom a guardian has been appointed. Lawless v. Reagan, 128 592. 24. Where there is a right of appeal, the matter in controversy should be judicially heard and considered below: a pro forma judg- ment ought not to be taken. Parker v. Parker, 118 110. 25. The attested copy of the reasons of ap- peal to be served on the adverse party must be attested by the register of probate. Wait v. Demeritt, 119 158. 26. As to the allowance of an appeal by the supreme judicial court, after the lapse of the statutory time, see ante, arts. 15, 16; post, arts. 41, 43; also, Kent v. Dunham, (14 G.) 80 279; Wright B.Wright, (13 A.) 95 207. 27. As to the entry of an appeal, and grant- ing leave to enter the same, after the- lapse of the time therefor, see Dean v. Dean, 2 150; Hubbard v. Hubbard, 6 397; Wheeler v. Bent, (4 P.) 21 167; Fuller v. Starbuck, (5 C ) 59 493; Robinson v. Durfee, (7 A.) 89 242. 28. Upon a probate appeal, the appellant is confined to the grounds stated in his reasons of appeal; but he may support them by new testi- mony and arguments. Prescott «. Tarbell, 1 204; Boynton r>. Dyer, (18 P.) 35 1; Slack v. Slack, 123 443. But not, in a will case, by a deposition taken in another will case, although the parties and the testator are the same. Sewall ii. Robbins, 139 164. APPEAL, I, (2), (3). 41 29. Upon a probate appeal the supreme judi- cial court exercises no general equity powers; but must make such a decree as the court of probate ought to have made. Grinnell v. Baxter, (17 P.) 34 383; Willey v. Thompson, (9 Met.) 50 329.' 30. Upon a probate appeal, where the ques- tion is as to the due execution of a will, the de- visees are entitled to appear, although an ad- ministrator with the will annexed also appears. Eliot v. Eliot, (10 A.) 92 357. 31. Upon a probate appeal, where issues have been tried by a jury, the court will not review the exercise of discretion by the judge at the trial, unless, perhaps, under very peculiar cir- cumstances. Newell v. Homer, 120 277. 32. In a proper case, the decree below will be reversed, and all proceedings suspended until the claim is established at law. Proctor v. Atkyns, 1 321. 33. After affirmance of a decree reforming an administrator's account, and the remission of the cause to the probate court for further pro- ceedings, the allowance, by that court, of a suit upon the administrator's bond cannot be ques- tioned, because the certificate of the appellate court had not then been filed. Choate v. Jacobs, 136 297. 34. Upon an appeal from an allowance of a guardian's account, the guardian can be charged with the amount of an improper investment. Kimball «. Perkins. 130 141. 35. But upon such an appeal, a decree of dis- tribution previously made, upon the petition of the administrator of the estate, from which the ward's property was derived, cannot be im- peached. Pierce v. Prescott, 128 140. 36. Where an appeal from the appointment of an administrator is dismissed, because the appellant was not entitled to appeal, the decree stands as if not appealed from, and the probate court may revoke it. Cleveland v. Quilty, 128 578. 37. For rulings under the obsolete statute of 1783, see Avery v. Pixley, 4 460; In re Draper, 4 461. 38. A question, not specified as one of the reasons of the appeal, is not open at the hearing of the appeal. Murphy v. Walker, 131 341. 39. A decree, granting administration upon an estate, and appointing A the administrator, may be reversed as to the appointment of A, and affirmed as to the residue; in which case the proceedings should be remanded to the probate court, with directions to appoint another. Dexter «. Brown, 3 32. (2.) From commissioners upon a de- ceased insolvent's estate. 40. From a decision of the commissioners, allowing or rejecting a claim, the appeal must go to the supreme judicial court, if the claim exceeds $300 (now |3,000 in Suffolk county, and $1,000 in any other county, P. S., Ch. 137, § 11); otherwise to the superior court. Sabine v. Strong, (6 Met.) 47 270: Waters v. Eandall, (8 Met.) 49 133. Vol. 1—6 41. If such an appeal is dismissed, through an erroneous construction of the statute, this court will reinstate it, although after the statu- tory time. Cross v. Cross, (7 Met.) 48 211. 42. The time to appeal is computed from the final return of the warrant; although there has been an extension of time, and the appellant's claim was disallowed before the first return. Merriam ». Leonard, (6 C.) 60 151. (3.> From a. single justice to the full court. 43. Where a person aggrieved has omitted, by mistake, to appeal within the time limited by law, leave to appeal may be granted. McFeely v. Scott, 128 16. 44. In a probate or equity cause, an appeal lies to the full court, upon the facts as well as the law. Wright v. Wright, (13 A.) 95 207 ; Stockbridge Iron Co. ■». Hudson Iron Co., 102 45. 45. The rule was otherwise before the G. S. Higbee v. Bacon, (11 P.) 28 423; Stearns o. Fiske, (18 P.) 35 24. 46. In a case of divorce or alimony, no ap- peal lies upon the facts. Sparhawk v. Sparhawk, 120 390. 47. And upon a probate appeal, the full court cannot order evidence taken, where none was taken before the single justice, and re- ported by him. Mason v. Lewis, 115 334. 48. Upon such an appeal, an exception to a refusal to appoint a person to take evidence is unavailable, if the justice himself reports the evidence. Granger v. Bassett, 98 462. 49. The decision of a single justice upon a demurrer, in an action at law, can be reviewed only upon bill of exceptions or report, not upon appeal. Cowley v. Train, 124 226. See, however, Higbee v. Bacon, (11 P.) 28 423. 50. If the appeal is taken before the expira- tion of thirty days, the full court has cognizance of it in ten days after it is taken. Mason j). Lewis, 115 334. 51. If the record states a fact, essential to the jurisdiction of the probate court, the appellant cannot contradict it. Robinson 1>. Robinson, 129 539. 52. The time to appeal cannot be extended by consent, or by the justice from whose de- cree the appeal is taken. Att'y-Gen. v. Barbour, 121 568. 53 Upon an appeal by the defendant, from the decree of a single justice, sitting in equity, if the evidence is not reported, the only question upon the appeal is, whether the decree conforms to the allegations and prayer of the bill; and the court cannot order evidence to be taken. Ross v. Harper, 99 175; Smith v. Townsend, 109 500; Stanley «. Stark, 115 259; Mason v. Daly, 117 403; Cheney «. Gleason, 125 166; Iasigi v. Chicago, B. & Q. Railroad, 129 46; O'Hare v. Downing, 130 16; Weld v. Walker, 130 422: Davis v. Sullivan, 141 76. 42 APPEAL, I, (4). 54. If, upon an appeal in an equity cause, the full court directs a decree for the plaintiff, with- out stating its form, the decree is to be settled by a single justice, and an appeal lies again, from the decree, as settled. Sewall v. Sewall, 130 201. 55. Where the full court has affirmed the de- cree, determining the defendant's liability, and referring it to a master to ake an account, and has overruled a petition for a rehearing, it will not entertain a rehearing, on the same question, on an appeal from the final decree, made by the single judge. Lincoln v. Eaton, 132 63. 56. An appeal claimed from the final decree of a single justice, in equity, and entered upon the docket of the county, is, at once, pending before the full court, and should be entered upon its docket; and if the appellant fails to furnish the proper copies, it must be affirmed for failure to prosecute the appeal. Cobb v. Rice, 128 11. 57. An appeal lies from the refusal of a sin- gle justice, to send the cause to a jury. Stockbridge Iron Co. v. Hudson Iron Co., 102 45. 58. But not from a decree made by consent. Winchester v. Winchester, 121 127. 59. Upon an appeal from a single justice, in an equity cause, or a probate cause, the decision will not be reversed, upon the facts, unless clearly erroneous, even where the master has reported the facts. Ward v. Salem St. Railway, 108 332; Reed v. Reed, 114 372; Montgomery v. Pickering, 116 227; Wiley v. Hoyt, 120 166; Slack v. Slack, 123 443; Newton v. Baker, 125 30; Boston Music Hall v. Cory, 129 435; Att'y-Gen. n. Williams, 140 329. 60. The decree cannot be reviewed, where it conforms to the ruling of the master, to which no exception was taken. Popple v. Day, 123 520. 61. Nor can an objection of form to the bill be first taken at the hearing of the appeal. Mason v. Daly, 117 403, 62. It is in the discretion of the justice making the decree, whether to order the defendant to answer, pending the appeal. Forbes v. Tuckerman, 115 115. 63. Upon an appeal by the plaintiff only, on a bill to redeem, taken on the ground that the amount to be paid is excessive, the defendant cannot contend that the plaintiff is not entitled to redeem. May v. Gates, 137 389. (4.) From tlie superior court. 64. An appeal lies from an order, granting a petition for the removal of the cause to the U. S. circuit court. Ellis o. Atlantic and P. R. R., 134 338. 65. An appaal will not lie from the decision of the superior court, in a matter resting in dis- cretion. Hawkins v. Graham, 128 20. 66. An appeal does not lie from the decision of the superior court, in proceedings under a special statute, which declares that its action shall be final. Cottage City «. Edgartown, 134 67. 67. An appeal does not lie from a judgment which is not final. Bennett v. Clemence, (3 A.) 85 431; Riley v. Farnsworth, 116 223; Hogaa v. Ward, 117 67; Elliot v. Elliot, 133 555. 68. And where a demurrer is sustained or overruled, an 'appeal does not lie until all the issues are disposed of, and final judgment ren- dered. Stetson v. Exchange Bk., (7 G.) 73 425; Maher». Dougherty, (11 G.) 77 16; Case v. Ladd, (2 A.) 84 130; Kellogg- ii. Kimball, 122 163. 69. An appeal does not lie from the approval or disallowance of the by-laws of a town. Ex pwrte Weymouth, (2 C.) 56 335. 70. An appenl lies from a judgment upon the verdict of a jury, assessing damages for laying, out a highway, only where the decision is. founded upon some matter of law, apparent upon the record. Valentine v. Boston, (20 P.) 37 201; Lanesborough ii. Berkshire Com'rs, (22 P.) 39 278; Patton v. Springfield, 99 627. Or from a decision upon the amount due in a writ of entry to foreclose a mortgage: Scoville «. Smith, (8 G.) 74 438. Or upon an award: Skeelsi'. Chickering, (7 Met.) 48 316; Wards. Am. Bk., (7 Met.) 48 486. Or accepting or rejecting the verdict of a sheriff's jury: Parker v. Framingham, (8 Met.) 49* 260. Or in a mechanic's lien case: Dorr ii. Richardson, 1 14 346. Or upon an auditor's report: Chapman v. Briggs Iron Co., (6 G.) 72 330; Hutchinson v. Tucker, 121 402. Or from the decision of a judge who has tried, a cause without a jury. Bass v. Haverhill Ins. Co., (10 G.) 76 400; Knowles e. Bachelder, 106 343. 71. A ruling upon a motion for a new trial cannot be reviewed on appeal, so far as it pro- ceeds upon matters of fact, or of discretion, or upon questions which were or might have been, raised before verdict. Caverly v. McOwen, 126 222. 72. An appeal lies from the judgment of the superior court, upon an agreed statement of facts, if it involves only questions of law; but if it involves the decisi n of facts, or drawing- inferences of fact, an appeal does not lie. Hovey v. Crane, (10 P.) 27 440; Fur- long v. Leary, (8 C.) 62 409: Cochrane f>. Boston, (1 A.) 83 480; White v. Clapp, (8 A.) 90 283; Comm. v. Cutter, (13 A.) 95 393; Charlton v. Donnell, 10O 229; Keegan v. Cox, 116 289: Fox ■». Adams Express Co., 116 292; West »_ Piatt, 120 421. See, however, as to particular cases: Sibley v. Smith, (19 P.) 36 546; Buck v. Wolcott, (13 G. i 79 268; Boylen v. Leonard, (2 A.) 84 407. APPEAL, I, (5); II, (1), (2). 43 73. An appeal lies from a decision sustaining a demurrer. Amherst & B. R. R. ». "Watson, (4 G.) 70 61. See ante, art. 68. 74. Or from a judgment dismissing an action for matter of law, apparent upon the record. Bowler v. Palmer, 1,2 G.) 68 553. 75. By statute, no appeal lies from a judg- ment on on answer or plea in abatement, or a motion to dismiss for defect of form or process. Browning v. Bancroft, (5 Met.) 46 88; Cushings. Field, (9 Met. ) 50 180;Morey v. Whittenton Mills, (8 C.) 62 374; Blackmer v. Davis, (16 G.) 82 120. 76. This applies to a decision upon a case agreed, respecting an answer in abatement. Hamlin v. Jacobs, 99 500. 77. After an appeal has been taken and en- te ed, and the appellant has been allowed to plead a discharge in insolvency, and the cause has been remitted to the court below for the trial of that issue, it is too late to object that the appeal was unauthorized by law. Glazier v. Carpenter, (16 G.) 82 385. 78. If an appeal is not entered at the pre- scribed time, by reason of accident or mistake, it may be entered at a subsequent time, upon a written petition for leave, and notice. Bergen . Pres- cott, 2 174; Lamphear v. Lamprey, 4 107; Comm. v. Messenger, 4 462; Tap- pan v. Bruen, 5 193; Lowell v. Spring, 6 398; Stone t>. Kelly, 8 98; Smith v. Hubbard, 11 24; Wood v. Ross, 11 271; Pierce v. Oliver, 13 211; Nan- tucket ». Cotton, 14 243; Gilbreth v. Brown, 15 178; Blood v. Kemp, (4 P.) 21 169; Purple v. Clark, (5 P.) 22 206; Belcher v. Ward, (5 P.) 22 278; Richards v. Allen, (8P ) 25 405; Cham- berlain v. Cochran, (8 P.) 25 522; Piper v. Willard, (10 P.) 27 34; Hovey i>. Crane. (10 P.) 27 440; Adams v. Adams, (15 P.) 32 177; Sale v. Pratt, (19 P.) 36 191. (5.) In other cases. 83. If notice of appeal, from an order of the judge of insolvency, under St. 1838, Ch. 163, § 8, is given seasonably to the register, but is. not recorded by him, the record may be amended. by the judge of insolvency, and the appeal en- Batty v. Fitch, (11 G.) 77 184. 84. This court has no jurisdiction of a peti- tion, in the nature of an appeal, by a creditor, from the decision of the court of insolvency, granting the insolvent a discharge. Kempton v. Saunders, 132 466. 85. By the true construction of St. 1873, Ch. 360, authorizing the Eastern Railroad Company to take land for a freight station, the award of the commissioners to be returned to the supreme judicial court, and the application for a jury, by way of appeal from their decision, is to be made, and the jury trial had, at the bar of the court. Wymana. Eastern R. R., 128 346. [For eases, relating to the supervising jurisdiction, of this court iu insolvency causes, exercised upon, petition or bill in equity, see Insolvent, II, (3).] II. Appeal to the Superior Court. (1.) From the court of Insolvency. [See Insolvent, II, (2).] (2.) From a trial justice, or a police, dis- trict, or other inferior court. 86. Where a party, against whom a judgment, is rendered in a district court, has lost his right of appeal, without his fault, the superior court, has the power, under P. S., Ch. 187, § 25, to- grant him a wr.'t of review. Keene «. White, 136 23. 87. The appeal must be taken to the next term after the judgment, although it is hekL before the appeal is taken. Mclniffe v. Wheelock, (1 G.) 67 600. 88. An appeal does not lie from a judgment on a complaint to recover a forfeiture under the militia laws. Kingsbury®. Doane, (19 P.) 36 530. 89. An appeal lies, altuough the judgment is. void. Comm. v. O'Neil, (6 G.) 72 343. 90. An appeal lies from a judgment of non- suit or default. Holman v. Siguurney, (11 Met.) 52 436; Ballu. Burke, (11 C.) 65 80. 91. A motion to dismiss the appeal, for the refusal of the justice to order a jury, cannot be entertained after the first term, although a simi- lar motion was made before the justice. Trees v. Rushworth, (9 G.) 75 47. 92. The action on the appeal may be dis- missed on the appellant's motion, if the justice did not render judgment, although the action might have been brought in the superior couit. Bowler v. Palmer, (2 G.) 68 553. 93. Where judgment is actually rendered in. the police court on the day of trial, the appeal must be claimed in twenty-four hours there- after, although, by a rule of the court, judg- ments are entered on the last day of the term Welch v. Damon, (11 G.) 77 383 44 APPEAL, II, (3), (4); III. 94. So in the Suffolk county justices' court, where judgment is not entered in the docket till three days afterwards. Gardner v. Dudley, (12 G.) 78 430. 95. Upon an appeal from the municipal court to the superior court, the defendant is not re- stricted to the issues made in the court below. Fels v. Kaymond, 134 376. 96. Upon a similar appeal, if, in the court below, an issue of fact was joined on a plea in abatement, and a jury trial could not be had, the defendant, appellant, is entitled to a jury trial in the superior court, upon that issue alone. O'Loughlin ». Bird, 128 600. 97. As to pleadings and evidence, upon an appeal to the common pleas from a justice of the peace, under the former statutes, see Tyng v. Prentice, 3 299; Hunt v. Wilson, (1 Met.) 42 309; Smith v. Kirby, (10 Met.) 51 150; Wilbur v. Taber, (9 G.) 75 361. 98. Where an action, in the municipal court of Boston, was discontinued by agreement, and judgment entered accordingly, and within the time to appeal, the plaintiff procured from a judge an order allowing an appeal, on the ground that the agreement was procured by fraud, it was held that the superior court had jurisdiction of the appeal. Powell v. Turner, 139 97. (3.) In proceedings under tbe poor debt- or's aet. 99. An appeal lies upon charges of fraud, only where there has been a hearing and judg- ment ; and if the magistrate adjudges the creditor in default for failure to appear, he cannot pro- ceed to render judgment upon charges of fraud filed by the creditor; and an appeal from such a judgment by the creditor will not lie. Longley v. Cleavland, 133 256. 100. Upon the appeal by the debtor, his omis- sion to file in the superior court copies of the charges, etc., does not entitle the creditor to have him defaulted, after proceeding to trial without raising the objection. Morse v. Dayton, 128 451. 101. Where the jury, upon the trial of the ap- peal, render a verdict of guilty upon several charges, the judge, on the defendant's motion for a new trial, may set aside the verdict as to some of the charges; and, on the plaintiff's mo- tion, may order those charges to be stricken from the record. Chapin« Haley, 133 127. 102. The appeal from the allowance of the poor debtor's oath, must be made to a civil term. Parker «. Page, (4 G.) 70 533. 103. While the debtor's appeal is pending, he cannot be re-arrested upon the same execution. 2»reMowry, 112 394. 104. At the trial in the superior court, the debtor may move to dismiss the charges. Clatur ii. Donegan, 126 28. 105. The omission to move for a dismissal of the appeal is a waiver of formal objections to the creditor's recognizance. Brown v. Tobias, (1 A.) 83 385. 106. The statute relating to an appeal in such a case is constitutional. Stockwell v. Silloway, 100 287. 107. The appeal vacates the judgment, and opens the case for trial upon all the charges, although the other party does not appeal. Morse v. Dayton, 125 47; Clatur «. Donegan, 126 28. 108. A discharge in proceedings in bank- ruptcy, commenced after the appeal, is not a bar to the prosecution of the appeal. Stockwell v. Silloway, 100 287. [For other rulings as to appeals, and as to the suffi- ciency of the charges, and proceedings thereupon before the magistrate, see Pook Debtor, III, (2), HI, (3).] (4.) In other cases. 109. Upon an appeal from the order of the State board of health, notice must be given to the board. Pebbles v. Boston, 131 197. 110. As to the right of appeal from such an order, see Sawyer v. State Board of Health, 125 182. 111. As to the appeal, given by statute, to a boy or girl, sentenced and committed to a re- form or industrial school, see In re Kenney, 108 492. 112. An action pending in the superior court, by way of appeal from the commissioners on a deceased insolvent's estate, cannot be removed into the U. S. circuit court. Du Vivier v. Hopkins, 116 125. 113. As to the right of appeal, in such a case; filing reasons for the appeal; and notice of ap- peal, see Jacobs v. Jacobs, 110 229, and orate, I, (2). III. Security upon Appeal; Sums eecover- ABLE THEREUPON. 114. If a party, who appeals to the superior court, does not file the bond required by law, the appellate court has no jurisdiction, and the action must be dismissed, although the appellee has entered a general appearance. Santom v. Ballard, 133 464. See, also, Putnam v. Boyer, 140 235. 115. For other rulings upon the question of jurisdiction, as affected by a defective bond, and the liability of the obligors in such a bond, see Keene v. White, 136 23; Wheeler & W. M. Co. v. Burlingham, 137 581; Comm. v. Parker, 140 439. 116. But if the defendant files a declaration in set off and appears, the subsequent filing by the plaintiff, of an answer, waives any defect in the form of the recognizance. Nonis v. Munroe, 128 386. 117. A person, adjudged to be a lunatic, is not required to file security upon his own appeal. McDonald v. Morton, 1 543. 118. The attorney of record may recognize, in his client's name. Adams v. Kobinson, (IP.) 18 461. 119. On appeal from a judgment of restitu- tion, in forcible entry and detainer, the recog- nizance must be for a fixed sum. Warner «. Howard, 121 82. 120. As to recognizances, etc., under obsolete statutes relating to appeals, see Harrington v. Brown, (7 P.) 24 232; APPEAL, IV. 45 Coram, v. Brigham, (16 P.) 33 10; Mar- tin v. Dennie, (16 P.) 33 202; Coram, v. Richards, (17 P.) 34 295; Coram, v. Dunham, (22 P.) 39 11; MoKeag v. O'Donnell, (10 A.) 92 543. 121. An action by a conusee, vipon a recog- nizance to prosecute an appeal, may be sus- tained upon an affirmance of the judgment for failure of the conusor to enter his appeal, with- out further forfeiture or estreat. Martin v. Campbell, 120 126. 122. Entering an appeal, and prosecuting it until the appellant 1 becomes nonsuit, is prose- cuting it "with effect," within the meaning of a recognizance. , Hobart v. Hilliard, (11 P.) 28 143. 1S3. A judgment of a municipal court for pos- session of the demanded premises, and costs, may be enforced by scire facias upon the bond, given upon appeal to the superior court; and neither an assignment of his interest in the prop- erty by the plaintiff, nor an adjudication of in- solvency by the principal, not pleaded in the former action, affects the validity of the judg- ment, or the action on the bond. Melvin v. Bird, 131 561. 124. Under the existing statute, in an action upon a recognizance, given on appeal from an inferior court, the appellee, on entering judg- ment for the penal sum of the recognizance, cannot have execution for the amount of 1 he original judgment and cos'.s, but only for the amount of costs arising upon the appeal. Robinson ». Masterson, 136 560. 125. As to the sufficiency of a bond or recog- nizance, on appeal from the decision of a magis- trate, in a summary process for the recovery of land, see Shaw v . Mclntier, (5 A .) 87 423 ; Mar- tin v. Campbell, 120 126. 126. A motion to dismiss an appeal to the superior court for defects in the bond, is too late after the first term . Wheeler & M. Man. Co. v. Burlingham, 137 581. 127. The intervening rent, and all damage and loss, etc., which the defendant, appellant in such proceedings, is now liable to pay under his bond or recognizance, include rent, or the value of the use and occupation, till recovery of possession, although the building is meanwhile destroyed by fire; all waste, actual and permis- sive; all losses, including by fire, not proved to be caused by inevitable accident. Davis v. Alden, (2 G.) 68 309; Jack- son v. Richards, (16 G.) 82 497. 128. For rulings under the former statute, see Braman v. Perry, (12 P.) 29 118; Bartholomews. Chapin, (10 Met.) 51 1. 129. For rulings as to "intervening dam- ages," upon the appeal bond of an executor or administrator, under the acts of 1817 and 1783, see Stearns v. Brown, (1 P.) 18 530; Swan v. Picquet, (4 P.) 21 465; Hobart v. Hilliard, (11 P.) 28 143. 130. A bond to dissolve an attachment in the district court, not approved as required by P. S., Ch. 161, § 122, does not relieve the principal from giving a bond to prosecute the appeal under P. S., Ch. 154, 8 52, and St. 1882, Ch. 95, and if such an appeal bond is not given, the plaintiff may maintain an action upon the at- tachment bond. Fogel v. Dussault, 141 154. 131. If a bond without a surety is given on an appeal from the district court, the superior court acquires no jurisdiction, although the bond is approved by the attorney for the ap- pellee. Henderson v. Benson, 141 218. IV. Practice and Proceedings in the ap- pellate Court and the Court below. [See. also, Amendment.] 132. An appeal erroneously taken, or not sus- tained and legalized by an observance of the terms and conditions prescribed by law, does not affect the proceedings below. Campbell r>. Howard 5 376; Comm. •a. Richards, (17 P.) 34 295; Comm. v. Dunham, (22 P.) 39 11; Rice v. Nicker- son, (4 A.) 86 66. 133. But an appeal rightly taken vacates the judgment appealed from, and the case is to be tried in the appellate court, as if it originated there; if not entered, or not prosecuted, the judgment must be affirmed in the appellate court. Buckminster v. Perry, 4 593; How v. How, 5 375; Campbell v. Howard, 5 376; Sever v. Sever, 8 132; Ewer -o. Beard, (3 P.) 20 64; Washburn v. Washburn, (10 P.) 27 374; Paine v. Cowdin, (17 P.) 34 142; Noyes v. Sher- burne, 117 279; Leyden v. Sweeney, 118 418. 134. Semble, however, that an appeal does not bring up a judgment in the appellant's favor, rendered upon one of two or more counts. Shepard v. Lawrence, 141 479. See, also, Vinal v. Spofford, 139 126; Smith «. Dickinson, 140 171. 135. An appeal from the clerk to a judge of the court, in the matter of taxing costs, does not vacate the judgment. Melvin v. Bird, 131 561. 136. An attachment is dissolved by judgment for the defendant on demurrer, although the plaintiff appeals, if he fails to enter the ap- peal. Suydam v. Huggeford, (23 P.) 40 465. 137. Upon an appeal from a police court to the superior court, the defendant may give in evidence any matter admissible under his plead- ing below. Lew «. Lowell, (6 A.) 88 25. 138. Where, in an action of tort before a. magistrate, the defendant was defaulted, and by consent the cause was continued, and on the day specified the defendant orally pleaded a general denial, the defendant has a right, upon appeal to the superior court, to answer on the merits. Jaha «. Belleg, (13 A.) 95 78; ex- plaining Comm. v. Hagarman, (10 A.) 92 401. 139. No issue can be tried upon the appeal, which could not have been tried in the court below. Kelley v. Taylor, (17 P.) 34 218; Ladd v. Kimball, (12 G.) 78 139. 46 APPEAL, V, (1). 140. If one of two joint defendants in con- tract is alone found liable, and appeals, the only issue is his own liability; and, if he admits it, judgment may go against him only. Downing v. Coyne, 121 347. 141. The fact that an appeal was taken, the time when it was taken, and 'the parties who appeal, are conclusively shown by the record, .and by that only. Davidson v. Boston & M. R. R., (3 C.) 57 91; Leigh v. Arnold, (5 C.) 59 615; Wells v. Stevens, (2 G.) 68 115; Moore 1>. Lyman, (13 G.) 79 394; Lund v. George, (1 A.) 83 403. 142. An appeal shown by the record cannot be orally waived. Kendall v. Powers, (4 Met.) 45 553. 143. A motion to dismiss an appeal from a magistrate's judgment for want of jurisdiction, or on the ground that the record does not show that the appeal was taken, need not be made at the first term. Moore v. Lyman, (13 G.) 79 394; Ashuelot Bk. v. Pearson, (14 G.) 80 521. 144. Such a motion may be first made in the superior court. Elder v. Dwight Man. Co. (4 G.), 70 201. 145. But a motion to dismiss, because the magistrate wrongfully refused a jury trial, is too late, after the first term, although it was made below. Trees v. Rushworth, (9 G.) 75 47. 146. Where a special denial, in writing, of the signature to a" note, is filed in the court be- low, the filing in the superior court of an an- swer, containing a general denial, does not "waive it. Manson u Arnold, 126 399; True®. Dillon, 138 347. "V. Appeal in a criminai, Catjse. [See, also. Amendment; Error.] (1.) Wlien an appeal lies; lioiv taken; •effect. 147. A trial before a magistrate, without a jury, is not within the prohibition of the Declar- ation of Rights, if there is an unobstructed right of appeal to a court, where a jury trial can be Jiad, as of right. Sullivan v. Adams, (3 G) 69 476- Jones i. Robbins, (8 G.) 74 329. See, also, Comm. D.Richards, (17 P.) 34 295. 148. An appeal lies only where the matter is finally disposed of; but where a defendant has lieen convicted upon an indictment, he can ap- peal to the supreme, judicial court before actual sentence. Comm. v. Hanley, 121 377; Comm. i). McCormack, 126 258. 149. A person convicted, at the same term, of three offences, the aggregate punishment of which may be more than five years in the State prison, may appeal to the supreme judicial court, although neither conviction would alone authorize such a sentence. Comm. v. Tuck, '20 P.) 37 356. 150. But where a general verdict of guilty is rendered, upon an indictment for breaking into a dwelling with intent to steal, and stealing therein, he cannot be separately sentenced for the larceny, and cannot, therefore, appeal. Comm. v. Hope, (22 P.) 39 1. 151. A prisoner cannot appeal from an order discharging him, and that he go without day. Comm. v. Graves, 112 282. 152. One may appeal from a void sentence by a magistrate. Comm. v. O'Neil, (6 G.) 72 343. 153. One who has not appeared to claim in- toxicating liquors seized on a complaint, until after they have been adjudged forfeited by the superior court, cannot appeal frdtn the order that they be destroyed. Comm. ». Intoxicating Liquors, 110 188. 154. Where the defendant is entitled to ap- peal before sentence, he must claim his appeal and recognize to prosecute it, at the term at which the verdict is returned. His remaining in custody does not suffice. Comm. v. Brigham, (16 P.) 33 10; Comm. ii. Richards, (17 P.) 34 295. 155. If he is under bail, he must either recog- nize, or appear and submit to the order of com- mitment. Comm. ^.Dunham, (22 P.) 39 11. 156. An appeal regularly taken vacates the proceedings below, and the cause is to. be tried de iiono in the appellate court. Therefore an irregularity or defect in the proceedings below, does not entitle the appellant to a dismissal of the complaint, or arrest of judgment. Comm. v. Dunham, (22 P.) 39 11; Welles v. Stevens, (2 G.) 68 115; Comm. v. Dillane,(llG.) 77 67; Comm. v. Sul- livan, (11 G.) 77 203; Comm. v. Tink- ham, (14 G.) SO 12; Comm. v. Lynch, (14 G.) SO 383; Comm v. Kingman, (15 G.) 81 208; Comm. v. Thompson, (2A.) 84 507; Comm. ■». McCormack, ^7 A.) 89 532; Comm. «. Campion, 105 184; Comm. v. Calhane, 108 431; Comm.®. Harvey, 111 420; Comm. v. Holmes, 119 195! Comm. i>. Fredericks, 119 199; Comm. v. Malloy, 119 347; Comm. v. Burke, 121 39; Comm. v. Huard, 121 56. 157. And a statute, requiring a person con- victed by a police court or a magistrate, who takes an appeal, to be committed to abide the sentence of the court below, is unconstitutional. Sullivan v. Adams, (3 G.) 69 476. 158. But if the appeal is not taken in a case, or in a manner, allowed by law, or upon terms or conditions prescribed by law, it is nugatory and void, and does not affect the proceedings below. Comm. v. Messenger, 4 462; Comm. v. Richards, (17 P.) 34 295; Comm. v. Dunham, (22 P.) 39 11; Comm. «. Crawford, (12 C.) 66 271. [For the analogous rule in civil causes, see, ante, 159. If the court below disallows a valid ap- peal,_ the appellate court will, nevertheless, en- tertain it, on showing its validity; and if it allows an invalid appeal, the appellate court will dismiss it. Comm. ■». Dunham, (22 P.) 39 11. 160. If the court below deems the appeal in- valid, it must pronounce sentence, enter default, APPEAL, V, (2), (3). 47 and otherwise proceed as if no claim of appeal liad been made. Comm. «. Dunham, (22 P.) 39 11. 161. Formal defects in a complaint arc no longer available on appeal. Comm. v. Walton, (11 A.) 93 238; Comm. n. Norton, (13 A.) 95 550; Comm. v. Harvey, 111 420. 162. Irregularities in the form or service of the warrant are not available, if first taken on appeal. Comm. ■». Henry, (7 C.) 61 512 Comm. v. Gregory, (7 G.) 73 498 Comm. v. Loghlin, (15 G.) 81 569 Comm. -v. Harvey, 111 420; Comm. v. Hart, 123 416. [See, also, post.V, (3)1. (2.) Papers to be transmitted to the ap- pellate court. 163. The defendant cannot legally be con- evicted, upon an appeal from a magistrate, unless the latter has transmitted certified copies of the proceedings before him. If the copies are not •duly certified, the court may allow the magis- trate to send new and certified copies, and to correct any errors in the copies, at any time be- fore the conclusion of the trial. Comm. d. Doty, (2 Met.) 43 18; Comm. v. Burns, (8 G.) 74 482; Comm. «. Sheehan, (12 G.) 78 28; Comm. u. Kelly, (12 G.) 78 123; Comm. v. Ma- goun, (14 G.) 80 393; Comm. v. Wig- gin, 111 428. 164. An order of the court below is not necessary, for the transmission of the papers by the clerk thereof. Comm. d. Bray, 117 150. 165. The original record will not suffice. Comm. ii. Phelps, (11 G.) 77 72. 166 . If the judgment upon the appeal is set aside on exceptions, for failure to send certified copies, the case will be remanded to the su- perior court for a trial de novo, upon certified «opies. Comm. v. Doty, (2 Met.) 43 18; Comm.s. Burns, (8G.) 74 482; Comm. v. Dressel, HO 102; Comm. n. Galli- gan, 113 203. 167. It is not necessary that the attestation should be under seal. Comm. v. Downing, (4 G.) 70 29; Comm. v. Cavey, 97 541; Comm. v. Bellows, 115 139. 168. Nor, under the U. S. internal revenue acts, was a stamp necessary. Comm. «. Hardiman, (9 A.) 91 487. 169. As to the sufficiency of the official addi- tion to the signature of the magistrate, or of the ■clerk to the attestation, see Comm. 11. Downing, C4 G.) 70 29; Comm. v. Dow, (11 G.) 77 316; Comm. •u.Jeffts, (14G.) 80 19; Comm. v. Barry, 115 146; Comm. v. Belou, 115 139. 170. As to the sufficiency of an attestation by a special justice, or a clerk pro tempore, or an as- sistant clerk, see Comm. v. Fitzgerald, (14 G.) 80 14; Comm. v. McCarty, (14 G.) 80 18; Comm. v. Clark, (16 G.) 82 86; Comm. v. Connell, (9 A.) 91 488; Comm. v. Harvey, 111 420; Comm. v. Crawford, 111 422. 171. A single attestation at the end suffices, if it covers all the papers. Comm. v. Hogan, (11 G.) 77 313; Comm. v. Doran, (14 G.) 80 37; Comm. v. Ford, (14 G.) 80 399; Comm. ?>. Barry, 115 146; Comm. v. Wait, 131 417. See, also, a peculiar case, Comm. v. Cavey, 97 541. 172. But if does not cover all, it is insuffi- cient. Comm. v. Burns, (8 G.) 74 482. 173. It is for the presiding judge to determine, upon inspection of the papers, whether certain ink marks on the record transmitted, were intended as an erasure of the attestation. Comm. v. Everson, 140 434. 174. The word "judgment" in P. S., Ch. 154, § 61, means the substance of the complaint and tlie judgment entered upon it. Comm. v. Keenan, 140 481. (3.) Proceedings upon the appeal. 175. A motion to quash a complaint, upon a formal defect, is too late, if first made to the superior court on appeal. Comm. v. Emmons, 98 6; Comm. i>\ Blanchard, 105 173; Comm. v. Do- herty, 116 13; Comm. v. Washburn, 128 421; Comm. v. Donahoe, 130 280; Comm. v. Peto, 136 155; Comm. v. Lagorio, 141 81; Comm. «. McCarty, 141 . 420. [See, also, ante, V, (1).] 176. ■ A claimant of gaming implements, seized under a warrant, who appears in the municipal court, cannot introduce evidence, for the first time, upon the appeal, to show that the order of notice, issued after the return of the warrant, was not properly served. Comm. v. Gaming Implements, 141 114. 177. On appeal from a conviction by a magis- trate upon a plea of not guilty, the prisoner can- not, without leave of the court, file another plea, either in the superior court or the supreme ju- dicial court. Comm. v. Darcey, (12 A.) 94 539; Comm. v. Lannan, (13 A.) 95 563. 178. If leave to withdraw a plea of guilty is refused, the jury may be directed to return a verdict of guilty, wtthout evidence. Comm. v. Hagarman, (10 A.) 92 401; Comm. v. Mahoney, 115 151. 179. Leave is discretionary with the court; and granting or refusing it cannot be reviewed uporAxception. Comm. v. Winton, lOS 485. lib. If the prisoner, convicted in a police court, forfeits his recognizance, he may be de- faulted, and sentenced in the superior court, without a jury trial. Comm. v. Whitney, 108 5. 181. The court may allow the complaint to go to the jury, although it is attached to the record of conviction below, if the jury are in- structed that the conviction is not evidence. Comm. v. Wingate, (6 G.) 72 485; Comm. v. Dow, (11 G.) 77 316. 48 APPEAKANCE— APPLICATION OF PAYMENTS. 182. And where the record went to the jury with the other papers, by inadvertence, the de- fendant is not entitled to a new trial as of right. Comni. ®. Nash, 135 541. 183. The defendant cannot be convicted in the appellate court upon a complaint which varies, in any material matter, from that made tc the court below. Comm. v. Phelps, (11 G.) 77 72; Comm. ®. Dressel, 110 102; Comm. v. Foynes, 126 267. 184. Nor can the government abandon the original offence charged, and prove a different offence. Comm. v. Blood, (4 G.) 70 31. But the conviction may be upon different evi- dence. Comm. ®. Ronan, 126 59. 185. If the proof corresponds to the allega- tions of the complaint, the jury may presume that the offence is the same, and evidence dehors the record is admissible to prove that it is. Comm. v. Dillane, (11 G.) 7 7 67; Comm. v. Hogan, (11 G.) 77 315; Comm. v. Burke, (14 G.) 80 81; Comm. ®. Car- roll, (15 G.) 81 412; Comm. ®. Carr, 111 423; Comm. v. Fields, 119 105; Comm. ®. Holmes, 119 195. 186. The appell te court camot inflict a greater penalty than the court below might have inflicted for the offence. In re Feeley, (12 C.) 66 598. 187. But if the court below might have in- flicted a greater penalty, the appellate court may do so. Batchelder v. Comm. , 109 361. Appearance. [See Abatement, III, (1); Attorney, I; Equity Jurisdiction, art. IS; Error, art. 40: Waiver; WRiT,arts. 12, 47, 64, 74.1 Application of payments. 1. A debtor making a payment to a creditor may, at the time, direct that it be applied upon a particular demand in the creditor's hands; and such direction must be followed. Shaw v. Pratt, (22 P.) 39 305; Rich- ardson v. Washington Bk., (3 Met.) 44 536; Parker v. Green, (8 Met.) 49 137; Williams v. Allen, 123 391. 2 So he may direct the application of part upon the creditor's own demand, and direct the payment of the balance to another creditor, although the former's demand is not fully paid. Hall ®. Marston, 1 7 575. 3. But if no direction is given, the creditor may apply the payment upon any demand which he holds, at his election, even althongh the demand is barred by the statute of limita- tions, or not enforceable by the statute of frauds. Brewer v. Knapp, (1 P.) 18 332; Washington Bk. v. Prescott, (20 P.) 37 339; Allen v. Kimbill, (23 P.) 40 473- Parker®. Green, (8 Met.) 49 137; Rohan «. Hanson, (11 C.) 65 44; Gay v. Gay, (5 A.) 87 157; Ramsay v. Warner, 97 8; Haynes v. Nice, 100 327. 4 He cannot, however, apply it to an illegal demand, such as a claim for usurious interest; but the debtor may elect to have it so- applied, and if he so elects, he cannot afterwards revoke his direction. Rohan ®. Hanson, (11 C.) 65 44; Richardson r, Woodbury, (12 C.) 66 279; Hubbell v. F.int, (15 G.) 81 550; Ives v. Farmers' Bk„ (2 A.) 84 236. 5. Where there is a running account, and the party who has a right to make the appropria- tion does not make it, the law, as a general rule, applies a payment to the earliest items, without reference to the ques.ion whether the creditor has a lien or other security for some items, and not for oihers. Sturges ®. Robbins, 7 301; TJpham v. Lefavour, (11 Met.) 52 174; Crompton v. Pratt, 105 255; Worthley v. Emer- son, 116 374; Swett ® Boyce, 134 381; Sexton®. Weaver, 141 273; Smith ®. Oakes, 141 451. 6. But where, by express agreement, or a course of dealing, one item is not included in the general account between a bank and its de : positor, a balance due from the bank will not be applied on that item, for a surety's benefit, except at the bank's election. Nat. Mahaiwe Bk. ®. Peck, 127 298; See, also, North Nat, Bk. ®. Hamlin, 125 506. 7. Serrible, that the rule does not apply to earlier debts, which are not then payable. Sturgis ®. Robbins, 7 301. 8. And transactions between the parties are not a running account within this rule, because one party kept an account of deliveries and pay- ments, if the agreement between the parties re- quires a different appropriation. Capen ®. Alden, (5 Met.) 46 268. 9. Where, in the course of general dealing between the parties, a balance is found due from one to the other, the former may apply it upon a debt against the latter, as if it was a pay- ment made by him. Dedham Bk. ®. Chickering, (4 P.) 21 314; North Nat. Bk. ®. Hamlin, 125 506; Nat. Mahaiwe Bk. ». Peck, 127 298. 10. The rule that a debtor may apply pay- ments as he pleases, applies only to voluntary payments, and not money collected, process of law. The court applies such payments as jus- tice requires. Blackstone Bk. ®. Hill, (10 P.) 27 129. 11. But money collected by a sale under a power m a chattel mortgage, given as security for the debt, or otherwise under a collateral security, is not within this exception; and where there are several debts secured, or a debt pay- able in instalments, the creditor may apply the sum received to any debt or any instalment, at his pleasure. Allen®. Kimball, (23 P.) 40 473; Wil- cox ®. Fairhaven Bk., (7 A.) 89 270; Saunders®. McCarthy, (8 A.) 90 42; Dra- per ®. Mann, 117 439; Fitchbiirg Ins. Co. ®. Davis, 121 121. 12. If a surety sends money to the creditor by the hands of the principal debtor, it is to be ap- plied upon his debt, although the principal and APPOETIONMENT. 40 the creditor, with knowledge of the fact, agreed that it should be applied upon another. Reed v. Boardman, (20 P.) 37 441. 13. An entry by the creditor in his books is sufficient evidence of application of a payment, which he had a right to apply. Dedham Bk. i>. Chickering, (4 P.) 21 314; Cole v. Trull, (9 P.) 26 325. 14. Where the direction of the debtor, as to the application of a payment, was induced by a mistake of fact, to which the creditor contrib- uted, he may revoke his direction, on learning the true state of the facts. Burr v. Crompton, 116 493. 15. Where a mortgagee of two parcels of land receives money, in consideration of the release of one of them to a grantee of the mortgagor, the money is, without a direction, to be applied Upon the mortgage, and not upon another debt against the mortgagor. Hicks v. Bingham, 11 300. 16. A person who receives, without direction as to the application, money from one who owes him individually, and also as agent for another, is bound to apportion the payment ratably. Barrett v. Lewis, (2 P.) 19 123. See, also, Cole v. Trull, (9 P.) 26 325. 17. Where an insolvent debtor assigns his property for the benefit of all his creditors who release, a dividend, received by a creditor, must be apportioned ratably upon all his demands against the insolvent, secured or unsecured. Commercial Bk. v. Cunningham, (24 P.) 41 270. Apportionment. [See, .also. Application of Payments, Art. 16, 17; Devise and Bequest, Art. 193; Income, III; Landlord and Tenant, VI, (7); Tenant foe Life.] 1. It is a general rule of the common law, fol- lowed in chancery, that sums of money, paya- ble periodically at fixed intervals, are not appor- tionable during the intervening periods. Dexter v. Phillips, 121 178; Adams ■u. Adams, 139 449. 2. So where an uncertain sum is thus payable, as profits of an enterprise for a year. Thompson v. Saco W. P. Co., 114 159. 3. Thus, except as otherwise provided by stat- ute, a contract for payment of rent at the end of each quarter or month, is not apportionable in respect of time. Sohier v. Eldredge, 103 345; Dexter B.Phillips, 121 178; overruling on this point, In re Poote, appellant, (22 P.) • 39 299. 4. So dividends on shares in corporations or pint-stock companies are not apportionable, un- less expressly so directed by statute, or the in- strument under which the question arises. In re Poote, appellant, (22 P.) 39 299; Granger v. Bassett, 98 462; Dex- ter v. Phillips, 121 178. 5. So annuities, except where clearly intended for the daily support of the beneficiary, as in the case of a child, or the separate maintenance of a wife, are within the rule. Wiggin v. Swett, (6 Met.) 47 194; Dexter v. Phillips, 121 178. Vol. I— r 6. So as to coupons for interest on bonds of the government, or other investments in the public funds, or bonds of a state, municipality, or corporation, commonly purchased and held as investments. Sargent v. Sargent, 103 297; Dexter «. Phillips, 121 178. 7. But interest on a debt, the principal of which is already payable, is apportionable, al- though payable, by the terms of the instrument, at stated times, because it accrues from day to day. In re Foote, appellant, (22 P.) 39 299; Dexter v. Phillips. llil 178. 8. For the same reason, apportionment of in- terest upon an ordinary debt is allowed, although it is secured by a bond or mortgage, fixing dates for the payment of interest, as the latter is re- garded as merely a security for the debt. Dexter s. Phillips, 121 178. 9. No apportionment is allowable upon a note of the receiver of a corporation, or the certificate of a voluntary association, as a social club, which creates no general personal liability, but is to be paid at a future day out of a special fund. Dexter 1>. Phillips, 121 178. As to these rulings, see G. S., Ch. 97, §§ 23, 24; P. S., Ch. 136, §§ 24, 25. 10. Doubtful language in a contract will be construed as providing for an apportionment, where an unjust or absurd consequei.ee would otherwise follow. Gale v. Nourse, (15 G.) 81 300. 11. Under the statute, dividends of corpora- tions, not declared when the event happens, are not apportionable. Granger v. Bassett, 98 462. 12. Under the statute, the administrator of one entitled, during life, to the income of a trust fund created by a will, is entit.ed to a pro- portionate part of the income, between the last payment and the beneficiary's death. Haraden v. Larrabee, 113 430. 13. Under G. S., Ch. 90, § 25, P. 8., Ch. 121, § 3, a tenant at will, who continues to occupy the remainder of the land, of which a portion has been conveyed to another, is liable to pay, as rent, the value of the use of the por- tion so occupied. Emmes i>. Peeley, 132 346. 14. Stat. 1869, Ch. 368, § 1, P. S., Ch. 121, § 8, is not applicable to a case where leased land was subject to a mortgage, on the fore- closure whereof, between two rent days, the tenant attorned to the mortgagee. Adams v. Bigelow, 128 365. 15. Or to a case where the landlord conveyed the property to another between two rent days. Emmes v. Feeley, 132 346. 16. Where a residuary bequest gave the prop- erty in trust to pay the income to the widow during life, and the principal, after her death, to those who would take as distributees, if the testator had then died intestate; it was held that the proceeds of semi-annual interest coupons, which had begun to run at the widow's death, payable at different times, were apportionable between her estate and the distributees, each coupon according to the time which had run upon it. Adams v. Adams, 139 449. 50 APPEAISEMENT— APPKENTICE. Appraisement. [See Arbitration; Attachment; Executor and Administrator; Highway; Railroad; Tax- ation.] Apprentice. 1. The statute regulating the binding out of an apprentice, does not affect the father's com- mon law right to bind out his infant child; and he may sue or be sued upon a good common law indenture, made between him and the master. Lobdell 11. Allen, (9 G.) 75 377; Caden v. "Parwell, 98 137; Crombie v. Mc- Grath, 139 550. 2. So held also under the former statutes. Day v. Everett, 7 145; Phelps n. Townsend, (8 P.) 25 392. 3. But the overseers of the poor or selectmen derive all their power from the statute; and un- less the statute is strictly pursued, as to the conditions under which they can act, and the contents of the indenture, the latter is void. Butler v. Hubbard, (5 P.) 22 250; Seidell v. Congdon, (16 P.) 33 44; Beidell v. Morse, (19 P.) 36 358; Har- per v. Gilbert, (5 C.) 59 417. 4. An action upon an indenture by the in- spectors of a State alms-house, binding a State pauper as an apprentice, is barred, unless brought before two years after the expiration of the term of apprenticeship. Johnson v. Gibbs, 140 186. 5. The guardian of an infant, whose parents are dead, does not bind himself personally by executing a statutory indenture. Blunt n. Melcher, 2 228; Holbrook v. Bullard, (10 P.) 27 68. 6. If an indenture, made by the overseers of the poor, does not strictly conform to the sta- tute, the father may recover upon a quantum mei-uit for the services of the apprentice. Beidell v. Congdon, (16 P.) 33 44. 7. If an indenture, made by the overseers of the poor, erroneously binds the child till one day after he becomes twenty-one years old, it is void only for the excessive day. Bardwell v. Purrington, 107 419. 8 And if the selectmen are ex officio overseers of the poor, an indenture, describing them as selectmen only, is good. Powers <>. Ware, (3 P.) 19 451. 9. And the recitals in an indenture, made by the overseers of the poor, are prima facie evi- dence of the facts recited, upon which their power depends. Bardwell v. Purrington, 107 419. 10. Having once received aid from the town, does not render the parent actually chargeable to the town, within the statute. Reidell v. Morse, (19 P.) 36 358. 11. But if he is actually unable to support his infant children, and some of them have been relieved by the town, the statute is satisfied. Bardwell n. Purrington, 107 419. 12. Where the master dies, and the appren- tice continues to live with and work for the widow, this does not, per se, bind the widow to fulfil the indenture. Hennessey v. Deland, 110 145. 13. Where the parties all reside, and the in- denture is made, here, it is to be performed here, although no place is named in it; and the master cannot compel the apprentice to remove with him from the Commonwealth. Hall v. Gardner, 1 172; Comm. v. Hamilton, 6 273; Davis v. Coburn, 8 299; Randall v. Rotch, (12 P.) 29 107; Himes v. Howes, (13 Met.) 54 80; Lob- dell v. Allen, (9 G.) 75 377. 14. But the father cannot take his son away from the master, because the latter intends to leave the Commonwealth, although afterwards he actually does so. Coffin v. Bassett, (2 P.) 19 357. 15. And if the father consents to the removal, he cannot, afterwards, take the son away. Lobdell u. Allen, (9 G.), 75 377. 16. An indenture executed in another State or country, according to the laws thereof, is not a bar to an action by the apprentice against the master for services here. Himes v. Howes, (13 Met.) 54 80. 17. But a child so bound will not be delivered up to its parent on habeas empus, if it elects to remain with the master. Comm. v. Hamilton, 6 273; Curtis v. Curtis, (5G.) 71 535. 18. If the covenants in an indenture are in- dependent, the master cannot discharge the ap- prentice for misconduct, or incurable sickness; although he may file a complaint to rescind the indenture. Powers v. Ware, (2 P.) 19 451. 19. And the apprentice's illness, without his fault, is not a breach of the father's covenant that he shall "well and faithfully serve," etc., or a defence, total or par.ial, to an action for the wages stipulated for in the indenture. Caden v. Farwell, 98 137. 20. A master cooper cannot send his appren- tice on a whaling voyage, and collect his earn- ings; and custom is no justification for so doing. Randall v. Rotch, (12 P.) 29 107. 21. An apprentice's bounty money on enlist- ment belongs to himself, not to his master. Kelly v. Sprout, 97 169. 22. Where a person employs an absconding apprentice, he is liable for his services to the master, and payment to the apprentice is no defence. Bardwell v. Purrington, 107 419. 23. A master has no right to assign the ser- vices of the apprentice without the latter's con- sent. Hall v. Gardner, 1 172; Davis v. Coburn, 8 299; Randall v. Rotch, (12P.) 29 107; Ayer v. Chase, (19 P.) 36 556. 24. If he does so, his right to the aprentice's services is suspended, and payment of wages to the master is no defence to the apprentice's action for his services. Randall «. Rotch, (12 P.) 29 107- Nickerson n. Easton, (12 P.) 29 110; Kelly v. Sprout, 97 169. 25. And if the apprentice absconds, after such an assignment, a person who employs him, without knowledge of the apprenticeship, is not liable to the master for the apprentice's services. Ayer v. Chase, (19 P.) 36 556. ARBITRATION, I, (1), (2). 51 Appropriation of payments. [See Application or Payments.] Aqueduct. [See Deed. Ill, (4); Town and City, VI, (i); Water Coubse, III.] Arbitration. I. The Submission. (1.) General rules. (2.) At common law. (3.) Under the statutes. II. Reference by Rule op Court. III. Revocation and Modification of Sub- mission. IV. The Arbitrators; their Authority and Proceedings before them. V. The Award. (1.) "When and by whom made and returned. (2.) What may be awarded; rejecting an er- roneous separable award. (3.) Requisites of an award. (4.) Interpretation of an award. (5.) Effect; oral evidence to qualify or ex- plain. VI. Proceedings in Court to vacate or enforce the Award. VII. Action upon the Award. I. The Submission. (1.) General rules. 1. Semble, that a clause in an executory agree- ment to submit differences, which may arise thereunder, to arbitration, would oust the courts of jurisdiction, and, is therefore void, and no defence to an action upon the agreement. Rowe v. Williams, 97 163; Wood i>. Humphrey, 114 185; Pearl v. Harris, 121 390; Emerson v. Wadman, 122 384; Evans «). Clapp, 123 165; Vass«). Wales, 129 38; White v. Middlesex R. R., 135 216. See, also, Cobb «. N. E. Ins. Co., (6 G.) 72 192. 2. And where arbitrators have been appointed under such a clause, and after a reasonable de- lay have failed to make an award, an action will lie upon the agreement. Cavanagh ». Dooley, (6 A.) 88 66. 3. Where the parties to a policy of insurance in the statutory form submit specially to ref- erees, the appraisal of the damage only, and they award a sum, the insured may properly maintain an action upon the policy, and not upon the award. Soars s. Home Ins. Co., 140 343. 4. A person suffering a loss under a policy of fire insurance, who is induced to submit the appraisal to arbitration by an erroneous, but not fraudulent, representation of the insurance agent, that the policy so requires, the assured having an opportunity to examine the policy, is bound by the submission. Wheeler®. Watertownlns. Co., 131 1. (2.) At common law. 5. An oral submission is. good at common law, but it is revoked by a written submission. Homes v, Aery, 12 134; Loring v. Alden, (3 Met.) 44 576; Symonds v. Mayo, (10 C.) 64 39; Blackwell v. Goss, 116 394. 6. An oral submission may be modified and enlarged orally, before the expiration of the time limited for making the award. Eveleth i>. Chase, 17 458. 7. Oral evidence is admissible to show what was submitted. Cook v. Jaques, (15 G.) 81 59; Byam D. Robbins, (6 A.) 88 63; Blackwell v. Goss, 116 394. 8. Where the parties have undertaken to sub- mit, under the statute, but the submission is invalid thereunder, on account of a defect, the court will not sustain it as a common-law sub- mission. Deerfield v. Arms, (20 P.) 37 480. 9. Where there is a condition in the submis- sion, that the award shall be returned to a court which has no jurisdiction, that condition is void, and the award will be upheld as under a submission at common law. Foster v. Durant, (2 C.) 56 544. 10. An oral submission as to the rent due, under an oral agreement to pay rent, and an oral award thereupon, do not concern an inter- est in real property, and are valid at common law. Peabody ®. Rice, 113 31. 11. A written submission, under seal, of con- flicting claims to real property, is good at com- mon law. Jones v. Boston Mill Corp., (6 P.) 23 148; Hodges v. Saunders, (17 P.) 34 470; Clark v. Burt, (4 C.) 58 396. 12. As to the sufficiency of the description of the real property, see' Brown v. Bellows, (4 P.) 21 179. 13. A submission may provide that the arbi- trator shall decide the cause upon certain writ- ten documents, and such other evidence as he may collect. Hamilton «. Phoenix Ins. Co., 106 395. 14. At common law, an executor or adminis- trator may submit to arbitration a claim relat- ing to the estate; and the statute does not take away this right. Coifln v. Cottle, (4 P.) 21 454; Bean v. Farnam, (6 P.) 23 269; Chadbourn v. Chadbourn, (9 A.) 91 173. 15. And it is unnecessary to add the word "executor" or " administrator " to the party's signature, if the contents of the submission show that it relates to a claim concerning the Dickey v. Sleeper, 13 244; Chad- bourn v. Chadbourn, (9 A.) 91 173. 16. Where two of three persons, against whom jointly a claim is made, agree with the claimant to submit the claim to arbitration, 52 AEBITEATION, I, (3),; II. they are holden for the full amount of the claim awarded against them. Cutter v. Whittemore, lO 442. 17. A submission by "A, agent," the princi- pal not being named -or known to the other party, binds A personally. Winsor v. Grigg , (5 C.) 59 210. 18. An infant is not bound by his submission to arbitration. Baker «. Lovett, 6 78. 19. A town, by its selectmen, may submit a controversy to arbitration; and after the award, the adverse party cannot dispute the select- men's power. Boston v. Brazer, 11 447; Somerville v. Dickerman, 127 272. See, also, Campbell «. Upton, 113 67. 20. A written agreement by adjoining land owners, that a surveyor may run the lines, and put up stakes to mark them out, is not a sub- mission to arbitration, and does not render the lines run by him conclusive. Thayer v. Bacon, (3 A.) 85 163. 21. But if one agrees with another to pay for a certain article, if it accomplishes a certain result, the test to be made by a third person, his decision is in the nature of an award, and it cannot be shown to have been erroneous. Robbins «. Clark, 129 145. 22. And, generally, where it is agreed that the sufficiency, etc., of work or articles shall be determined by an expert, named in the agree- ment, this is a good common law submission; , and the expert's decision cannot be impeached for errors of judgment, or for any other matter which could not be interposed to impeach an ordinary award. Palmer v. Clark, 106 373; Flint «. Gibson, 106 391. [See, also, Contract, art. 347.] 23. As to an agreement, that more than one person shall so act, see Phippen v. Stickney, (3 Met.) 44 384; post, art. 101. 34. "Where a submission is signed by an at- torney or agent, the appearance of the party before the arbitrators, and the production of evidence by him, is a ratification of the sub- mission. Blakely v. Graham, 111 8. (3.) Under the statutes. 25. The statute, authorizing, the submission of "all controversies, which might be the sub- ject of a personal action at law, or of a suit in equity," does not include a controversy respect- ing the boundary line of adjacent parcels of land. Torrey v. Munroe, 1 19 490. 26. Or the sum to be paid by a lessor for the surrender of a lease. Hubbell ®. Bissell, (13 G.) 79 298. 27. Or a claim for flowage, under the mill acts. Henderson «. Adams, (5 C.) 59 610; Carpenter v. Spencer, (2 G.) 68 407. 28. Or a claim for damages against a city for changing the grade of a street. Osborn e. Fall River, 140 508. 29. But a controversy, respecting the amount due upon a trust fund, may be so submitted, although the fund is invested in real property. French «. Richardson, [5 C.) 59 450. 30. For rulings upon the same subject under the act of 1786, see Whitney v. Cook, 5 139;' Fowler v. Bigelow, 8 1. 31. A submission under the statute, to which a partnership is a party, must name each partner Wesson «. Newton (10 C.) 64 114. Aliter, under the act of 1786. Skillings «. Coolidge, 14 43. 32. And it must be acknowledged by each partner. Abbott v. Dexter, (6 C.) 60 108; Hor- ton v. Wilde, (8 G.) 74 425. 33. But where two or more execute the sub- mission, some may acknowledge personally, and some by attorney. Wright o. Raddin, lOO 319. 34. An acknowledgment of a submission, executed by a town, by the selectmen in behalf of the town, is good. Campbell v. Upton, 113 67. 35. A failure to pursue the exact language of the statute will not vitiate a submission, if the substance of the statutory requirements is con- tained in it. Campbell v. Upton, 113 67. 36. So of the magistrate's certificate to the acknowledgment. Campbell v. Upton, 113 67. 37. If the magistrate is one of the arbitrators, the award is void, under the present statute, and the act of 1786; and the defect is not cured by an appearance and hearing, without objec- tion. Drew v. Canady, 1 158; Deerfleld «. Arms, (20 P.) 37 480; Heath «. Ten- ney, (3 G.) 69 380. 38. The submission must name the arbitra- tors; and if two only are named, and it is pro- vided that they may choose a third, an award by the three is void. Franklin Mining Co. v. Pratt, 101 359. 39. The rule was the same under the act of 1786. , Monosiet v. Post, 4 532. 40. For other rulings as to the sufficiency of the submission, and the execution thereof, under the act of 1786, see Bullard v. Coolidge/ 3 324; Mans- field v. Doughty, 3 398; Jones i>. Hacker, 5 264; Bacon v. Ward, 10 141; Skill- ings e. Coolidge, 14 43; Humphry v. Strong, 14 262; Inman ». Wheeler, (1 P.) 18 504. n. Reference by Rule of Court. 41. The attorney of record has power to refer the cause under a rule of court. Buckland v. Conway, 16 396. 42. A judge of probate cannot refer a suit on an administration bond, as he is only a nominal plaintiff. The parties interested may do so. Thomas v. Leach, 2 152; Paine v. Ball, 3 235. 43. Where an agreement to refer is signed, and filed with the clerk, who marks the cause AKBITEATION, II; III. 53 on the docket as referred, this suffices, although a rule is not actually taken out. Haskell v. Whitney, 12 47. 44. The death of a party is not a revocation of the rule. Bacon v. Crandon, (15 P.) 32 79. 45. The submission may, by consent, include other controversies not embraced in the declara- tion. „ „ Berkshire W. Co. v. Day, (12 C.) 66 128. 46. The submission may authorize the fixing of a boundary line between the parties, and an award thereunder binds them. Goodridge v. Dustin, (5 Met.) 46 363. 47. The arbitrator may refer a question of law to the court; but if he refers a question of fact, -judgment on his report will be set aside. Bigelow v. Newell, (10 P.) 27 348; Ellicott v. Coffin, 106 365; Preston ». Knight, 120 5. 48. Where an action upon a bond is referred, the reference includes the damages as well as the question whether there was a breach; and the judgment for the obligee should be for the penalty, and the execution should issue for the damages found. Newton n. Bice, 118 417. 49. The rule may be modified by consent, but the modification must appear of record. Hicks v. McDonnell, 99 459; Preston v. Knight, 120 5. 50. Where one of the arbitrators dies, and an entry is made upon the docket of the appoint- ment of another, appearance before him, with- out objecting, is sufficient evidence of a party's consent to his appointment. Brigham v. Packard, 116 195. 51. But unless a substitution of one arbitrator for another appears of record, the award cannot 1)6 SiCCCDtcd. Woodbury 11. Proctor, (9 G.) 75 18; Hicks v. McDonnell, 99 459. 52. A general award is not affected by filing an amended count after the submission. Salisbury v. Matthews, (12 G.) 78 333. 53. Where a party suffers the hearing to pro- ceed without objection, after he knows- that the referee has conversed with the adverse party, and investigated some of the facts ex parte, this will warrant a finding that he has waived, the irregularity, and will prevent him from object- ing to the acceptance of the award. Duckworth v. Diggles, 139 51.- 54. Upon a reference by rule of court, the referee derives his authority, not from the con- sent of the parties, but from the court, and the case remains in court, the reference being merely a substitute for a trial by a jury. Woodbury n. Proctor, (9 G.) 75 18; Willey v. Durgin, 118 64; Seavey v. Beckler, 132 203. 55. And such a reference of the cause only does not discharge bail, or dissolve an attach- ment, or prevent the plaintiff from taking a special judgment under the act of 1875, P. S., Ch. 171, § 23. Haskell v. Whitney, 12 47; Bean v. Parker, 17 591; Hill n. Hunnewell, (1 P.) 18 192; Seavey v. Beckler, 132 203. 56. After such a reference, the plaintiff can- not discontinue, nor can either party rescind the rule. Haskell n. Whitney, 12 47. 57. Such a reference is a waiver of all defects in the pleadings, and of the strict rules of pro- cedure, and of the nonjoinder, but not of the misjoinder, of plaintiffs. Forseth n. Shaw, 10 253; Coffin v. Cottle, (4 P.) 21 454; Merrill v. Gold, (1 C.) 55 457; Austin?;. Kimball. (12 C.) 66 485; Page v. Monks, (5 G.) 71 492; Porter d. Dickerman, (11 G.) 77 482; Ames v. Stevens, 120 218. 58. Where the cause, after reference by rule of court, a partial hearing by the arbitrator, and an adjournment, to be taken up on the parties' convenience, remains for six years with- out further action, and the defendant neglects, for more than a year after the withdrawal of his counsel, to employ new counsel, the court may, in its discretion, order the defendant to be defaulted. W.lley v. Durgin, 118 64. III. Revocation and Modification of Sub- mission. 59. A submission may be revoked at any time before publication of the award; and an agreement that, if either party fails to appear, *he arbitrators may proceed ex parte, does not render it irrevocable. Boston & L. Railroad v. Nashua & L. Railroad, 139 463. 60. A submission, under seal, can be revoked only by an instrument under seal. Wallis v. Carpenter, (13 A.) 95 19. 61. A party to a submission, who, without right therefor, revokes the arbitrators' authority or prevents them from acting, is liable to an action, even if he is not bound under a penalty. Pond v. Harris, 113 114. 62. In an action for wrongful revocation of a submission,' the plaintiff can recover for his loss of time, trouble, and expenses in preparing for the hearing; including expenses of counsel, depositions, witnesses, and arbitrators, so far as they cannot be recovered in a subsequent trial before the court; but not for loss of time and trouble in making the agreement to arbitrate. Pond 11. Harris, 113 114. 63. It is not a justification for revoking a sub- mission, under seal, that the other party held claims by assignment from a third person, not under seal, under an oral agreement to account to the latter for the proceeds. Pond v. Harris, 113 114. 64. For a ruling, in a peculiar case, that an award was not final, so as to prevent a revoca- tion; and that the revocation, by the directors of a corporation, was absolute, not conditional, Boston & L. R. R. v. Nashua & L. R. R., , 139 463. 65. The parties may, by a subsequent agree- ment, modify the submission, with like effect, as if the submission contained the subsequent agreement. Cogswell v. Cameron, 136 518. 66. An agreement, in a contract, that money to be paid for property, materials, services, or the like, shall be determined by third persons, is irrevocable; and cannot be avoided, unless it is 54 AEBITEATION, IV. impossible to obtain their decision, or unless the whole contract may be and is rescinded. Haley ®. Bellamy, 137 357. See, also, Hood ®. Hartshorn, 100 117; Pal- mer ®. Clark, 106 373. See, &lso,post, art. 101. IV. The Arbitrators; their Authority; and Proceedings before them. [See, also, post, VI, VII.] 67. The parties may agree in advance, that irregularities on the part of the arbitrators, in obtaining information about the cause, shall be waived, or to waive such irregularities after they have occurred; and it is no objection to such a subsequent waiver that the objecting party did not know what the irregularities were. Eveleth ®. Chase, 17 458; Fox ®. Hazelton, (10 P.) 27 275; Hamilton v. Phoenix Ins. Co., 106 395; Cogswell®. Cameron, 136 518. 68. In the absence of any agreement, an award is void as to a party to whom notice of hearing has not been given. Lincoln?). Taunton Copper M. Co., (8C.) 62 415; Conrad ®. Massasoit Ins. Co., (4 A.) 86 20; Billings ®. Billings, 110 225. 69. But not for a refusal to postpone the hear- ing. Peabody ®. Rice, 113 31. 70. Or to reopen the case to hear further testi- mony. Blodgett ®. Prince, 109 44. 71. And a waiver of the right to a hearing or notice, may be implied from correspondence. Page ®. Ranstead, (10 A.) 92 295. 72. The hearing maybe at the office' of the counsel for a party, and the former's aid to his client thereat, does not invalidate the award, although contrary to the agreement, if he ceased to act upon objection being made. Blodgett ®. Prince, 109 44. 73. Arbitrators may examine an unsworn witness, or receive a paper from a party after the hearing, if no objection is made. Winsor ®. Griggs, (5 C.) 59 210; Maynard v. Frederick, (7 C.) 61 247. 74. A referee, under a rule of court, may ex- amine an interested witness; but not where the reference is to report facts for the consideration of the court. Fuller v. Wheelock, (10 P.) 27 135; Fowler ®. Thayer, (4 C.) 58 111. 75. Where there is a submission to two, with authority to select a third, if they do not agree, they may select the third man before beginning the hearing. Bigelow ®. Maynard, (4 C.) 58 317. 76. "Where one arbitrator is appointed, with authority, if he declines to act, to select toties qwtiea other persons to act in his place; and he declines, and selects three, of whose selection the parties have notice; and afterwards selects two others, in place of two who decline to act, and one party has not notice of the latter selec- tion, the award is void as to him. Crowell v. Davis, (12 Met.) 53 293. 77. Where a bill in equity was dismissed gen- erally, and afterwards "all claims" in contro- versy were submitted to arbitrators, they may inquire into the settlement by which the bill was dismissed, and, if they think it fraudulent, may re-open and determine the subject of the bill. Mickles v. Thayer, (14 A.) 96 114. 78. By the common law of Massachusetts, corruption, partiality, or misbehavior of the ar- bitrators, or excess of authority or gross errors or mistakes on their part, are pleadable in bar in an action on the award. Bean®.Farnam, (6 P.) 23 269; Strong ®. Strong, (9 C.) 63 560. 79. But a mistake of the law does not vitiate the award, unless the submission, or the award itself, refers matters of law to the court; and this rule holds upon a reference by rule of court, unless the rule expressly provides that questions of law shall be reviewed by the court. Jones ®. Boston Mill Corp'n, (6 P.) 23 148; Bigelow ®. Newell, (10 P.) 27 348; Boston Water P. Co. u. Gray, (6 Met.) 47 131; Knight ®. Wilder, (2 0.) 56 199; Fairchild v. Adams, (11 C.) 65 549; Austin®. Kimball,(12C.) 66 485;Comm. ®. Roxbury, (9 G.) 75 451; Boynton ®. Butterfleld, (6 G.) 72 67; Estes®. Mans- field, (6 A.) 88 67; Rundell «. La Fleur, (6 A.) 88 480; Mickles®. Thayer, (14 A.) 96 114; Ellicott ®. Coffin, 106 365; Carter v. Carter, 109 306; Gardner ®, Boston, 120 266; Cowley «. Dobbins, 123 587. 80. And a report of the evidence, or a " state- ment of facts and principles," annexed to or made a part of the award, is not a reference of the questions of law to the court. Ward v. Am. Bk., (7 Met.) 48 486; Smith ®. Boston & M. R. R., (16 G.) 82 521. 81. Findings of fact are also conclusive. Leighton v. Meserve, 117 52. 82. But a mistake in computation, figures, or the like, or any other mistake made by the arbi- trators in carrying out their own theory, is ground for setting aside the award. Boston Water Power Co. ®. Gray, (6 Met.) 47 131 ; Richardson ®. Curtis, (2 C.) 56 341; Carter v. Carter, 109 306; Spoor ». Tyzzer, 115 40; Davis ®. Henry, 121 150. 83. An award is not invalid, because an arbi- trator had formerly been counsel in another action for the prevailing party, unless the fact was intentionally concealed. Goodrich®. Hulbert, 123 190; Cheney ®. Martin, 127 304. 84. An arbitrator is not disqalified because he is a creditor of a party, or a stockholder in a bank, which holds, as collateral security for a person in good credit, shares of a corporation, which is a party. Leominster ®. Fitchburg & W. R. R., (7 A.) 89 38; Wallis v. Carpenter, (13 A.) 95 19. 85. Where some of the arbitrators had per- judged the cause on ex parte testimony, the award is not binding. Conrad v. Massasoit Ins. Co., (4 A.) 86 20; Hills v. Home Ins. Co., 129 345. 86. For a particular case, where a previous ex- pression of an opinion did not disqualify an arbitrator, see Morville «. Am. Tract Soc, 123 129, ARBITRATION, V, (1). 55 87. Where one of two arbitrators was in- terested, and after his interest has ceased, a new agreement is made, adding a third, and provid- ing for a majority award, such an award is good, although the party was not aware of the pre- vious interest. Wilson v. Concord R. R., (3 A.) 85 194. 88. Proceeding to a hearing under a reference by rule of court, without objection, is a waiver of a known objection to the impartiality of one of the referees. Fox v. Hazelton, (10 P.) 27 275. 89. Receipt by one of three arbitrators from a party, without the other party's or the other arbitrators' knowledge, of a letter concerning the merits of the cause, raises no objection to the award, if the cause had been previously finally decided, although the award had not been actually made up. Johnsons. HolyokeW. P. Co., 107 472. 90. It is no objection to an award upon a sub- mission as to the value of property, that each party was asked his opinion, and then the mean value was taken, the sum appearing to have been fixed upon the arbitrators' own judgment. Brown v. Bellows, (4 P.) 21 179. 91. A majority award is not to be set aside, because two of the arbitrators had a heated dis- cussion, and the third said he would rely upon one, and those two refused further to hear the other. Eoberts u. Old Col. R. R., 123 552. 92. An arbitrator is a quasi judicial officer, and is not liable to an action for fraudulently inducing the other arbitrators to unite with him in an unjust award. Hoosac Tunnel D. & E. Co. i>. O'Brien, 137 424. V. The Awakd. (1.) When and by whom made and re- turned. [See, also, arde, IV; post, V, (3).] 93. Under a parol submission, the arbitrators may, by parol consent of parties, make a sup- plementary award. Eveleth u. Chase, 17 458. 94. The award must be unanimous, unless the submission or the statute expressly allows a majority to make it. Towne v. Jaquith, 6 46; Phippen v. Stickney, (3 Met.) 44 384; Maynard ». Frederick, (7 C.) 61 247. 95. And where the submission or the statute allows a majority award, the award must show on its face that all met and heard the parties. Short v. Pratt, 6 496; Walker u. Melcher, 14 148. 96. But where a report under a rule of court was recommitted, and two met and heard the parties, the third refusing to attend, their report was held valid. May v. Haven, 9 325. 97. As to the sufficiency of a statement in the award or report, that all the arbitrators met and heard the parties, see Sperry v. Ricker, (4 A.) 86 17 War- ner v, Collins, 135 26. 98. Where a majority award may be made, if, after a completed hearing, all the arbitrators meet and consider, but do not decide the con- troversy, an award subsequently executed by a majority is valid, although no notice is given to the other. Carpenter u. Wood, (1 Met.) 42 409; Maynard u. Frederick, (7 C.) 61 247. 99. And if all or a majority agree at a meet- ing, the award may be prepared and signed by them at different times. Blodgett v. Prince, 109 44; Campbell u.Upton, 113 67. 100. But a supplementary award, rendered without the knowledge of one of the parties, and after the expiration of the time limited for the award, is invalid. Shurtleff v. Parker, 138 86. 101. Where parties agree, one to sell and one to purchase, certain land, and that three per- sons named shall fix the price, and two only of the persons named agree upon a price, the con- tract is valid for the reasonable value of the land. Phippen u. Stickney, (3 Met.) 44 384. 102. An umpire takes the place of the arbitra- tors who fail to agree, and the award is his only. A third arbitrator, selected where the two named in the submission do not agree, a majority re- port being allowed, must execute his own judg- ment, like an arbitrator originally selected; and if he confines himself to voting with one, where his own opinion differs from that of either, the award is invalid. Haven u. Winnisimmet Co., (11 A.) 93 377. .103. If an award, under a statutory submis- sion, returned within the year, is recommitted, it may be again returned after the lapse of the year. Sperry v. Ricker, (4 A.) 86 17. 104. The award need not be returned within, the year, if it is fully performed within that time. Luke i). Leland, (6 C.) 60 259, 105. An agreement by the parties, to extend the time for a return under a statutory submis- sion, is void unless acknowledged. Franklin Min. Co. v. Pratt, 101 359. 106. Such an award must be returned to a term of the court while in session; and filing it in the clerk's office will not suffice, although the parties orally consent. Skeels u. Chickering, (7 Met.) 48 316; Burghardt v. Owen, (13 G.) 79 300. 107. Where the award, properly indorsed and sealed, was delivered by the arbitrators for transmission to the court to the counsel for the prevailing party, who deposited it, unopened, with other papers, and it was not opened till long afterwards, this is not a compliance with the statute. Curley v. Chadburne, 119 489. 108. Parties residing in M. county may enter into a submission before a justice of the peace of S. county, if the submission is to be returned in S. county. Sperry u. Ricker, (4 A.) 86 17. 109. For various rulings under the statute of 1786, as to the return of an award or referee's report, see Durell v. Merrill, 1 411; Whitney v. 56 AKBITRATION, V, (2). Cook, 5 139; Mott 0. Anthony, 5 489; Southwoth 0. Bradford, 5 524; "Walker ii. Melcher, 14 148; Noyes 0. Noyes, (1 P.) 18 269; Gerrish 0. Morss, (2 P.) 19 625. C2.) What may be awarded; rejecting an erroneous separable award. 110. If a statutory submission contains no provision concerning costs and expensed, the ar- bitrator has authority only to award his own compensation, and the costs of court; but an award of counsel fees, if separable, may be stricken out. Warner v. Collins, 135 26. See, also, Harden 0. Harden, (11 G.) 77 435. 111. Under a statutory submission, an un- authorized separable award may be stricken out, without affecting the residue of the award. Warner 0. Collins, 135 20. See, also, Shirley 0. Shattuck, (4 C.) 58 470; May- nard v. Frederick, (7 C.) 61 247; Cald- well®. Dickinson, (13 G.) 79 365; Hub- bell v. Bissell, (2 A.) 84 196; Campbell «. Upton, 113 67. 112. So where a separable part of the award is void, for uncertainty. Leominster 0. F. & W. R. R., (7 A.) 89 38. 113. So upon a common law submission, a separable portion of the award, void as beyond the submission, may be rejected without affect- ing the residue. Barrows 0. Capen, (11 C.) 65 37. 114. So where, under two separate statutory submissions, different awards have been made, which are independent of each other, one may be accepted and the other set aside. Fayo. Bond, (1 A.) 83 211. 115. Arbitrators, appointed by the probate court to determine a claim against an insolvent estate, have no power to award that the claim- ant is indebted to the estate; but such an award is separable. Gilmore 0. Hubbard, (12 C.) 66 220. 116. Nor have arbitrators, under a common law, submission power to award payment of the costs of a criminal prosecution, but such an award is separable. Harrington 0. Brown, (9 A.) 91 579. 117. Arbitrators, under a statutory submission, have no authority to award that one party shall deliver to another specific property, or surrender a lease; and if they do so, and it appears that this was part of the consideration of the pay- ment of the money awarded, the whole award is void. Hubbell 0. Bissell, (13 G.) 79 298; Brown 0. Evans, (6 A.) 88 333. 118. Referees, under a rule of court, may award to either party, wholly or partly, the costs to be taxed, either in a writ of entry or any other cause; but not, an attorney's fee on the hearing before them. Nelson 0. Andrews, 2 164; Bacon 0. Crandon, (15 P.) 32 79; Jones 0. Carter, (8 A.) 90 431; Warren 0. Waldron, 108 232. 119. And if the award is silent respecting costs, the prevailing party recovers them. Woolson v. Boston & W. R. R., 103 580. 120. In Massachusetts, arbitrators, under a common law submission, have no authority to award costs of the arbitration, unless the sub- mission so provides. Peters 0. Peirce, 8 398; Vose How, (13 Met.) 54 243; Shirley v. Shattuck, (4 C.) 58 470; Maynard 0. Frederick, (7 C.) 61 247; Hubbell v. Bissell, (2 A.) 84 196; Harrington 0. Brown, (9 A.) 91 579. 121. For rulings construing a submission re- lating to costs, see Shurtleff 0. Parker, 138 86. 122. And under a submission, allowing the arbitrator to pass upon questions of costs, an award fixing a gross sum for costs is prima facie void. Tallman 0. Tallman, (5 C.) 59 325; Thoreau 0. Pallies, (5 A.) 87 354. 123. An award is void, which exceeds the submission, whether the latter is at common law, under the statute, or by rule of court; sub- ject to the rule allowing the rejection of a sepa- rable award. Tudor 0. Peck, 4 242; Worthen 0. Stevens, 4 448; Bean v. Farnam, (6 P.) 23 269; Culver 0. Ashley, (17 P.) 34 98; Shearer 0. Handy, (22 P.) 39 417; Munn 0. Reed, (4 A.) 86 431; Morton 0. Dresser, 108 71; Richards ®. Todd, 127 167. 124. But the party in whose favor the ex- trinsic matter is awarded cannot object. Lyman 0. Arms, (5 P.) 22 213. 125. .Nor can a party directed to pay money to a third person, for the benefit of the other party, object on that ground. Boston 0. Brazer, 1 1 447. 126. Nor can a party object who accepts pro- formance from the other. Culver 0. Ashley, (19 P.) 36 300. 127. But under a statutory submission, ac- ceptance by the parties does not validate an award of matters, not within the submission. Hubbell v. Bissell, (13 G.) 79 298. 128. The legal presumption is, that the arbi- trators decided all matters submitted to the'm, and such matters only. Sperry 0. Ricker, (4 A.) 86 17; Fiske 0, So. Wilbraham Man. Co., (7 A.) 89 476. 129. For rulings, relating to the question, whether an award exceeds the submission, under the particular circumstances of the case, see Lyman 0. Arms, (5 P.) 22 213; Spear 0. Hooper, (22 P.) 39 144; Higby 0. Upton, (3 Met.) 44 409; Boston Water Power Co. 0. Gray, (6 Met.) 47 131; Penniman 0. Rodman, (13 Met.) 54 382; Merrill 0. Gold, (1 C.) . 55 457-, Johnson 0. Arnold, (2 C.) 56 46; French 0. Rich- ardson, 5 C.) 59 450; Ellis 0. Ridgway, (1 A.) 83 501 ; Thoreau 0. Pallies, (5 A. ) 87 354; Wallis 0. Carpenter, (13 A..) 95 19. 130. An objection that an award exceeds the submission is not sustained by proof, tending to reduce the amount of the claim, without chang- ing its character. Morvillee. Am. Tract Soc, 123 129. AKBITEATION, V, (3). 57 (3.) Requisites of an award. [As to the invalidity of an award, which exceeds the submission, see, ante, V, (2).] 181. An award is void, unless ilxe arbitrators pass upon all the matters committed to them by the submission, whether the latter is at common law, under the statute, or by rule of court. Bean v. Farnam, (6 P.J 23 269; Hous- ton v. Pollard, (9 Met.) 50 164; Parker v. Clark, 104 431 ; Camp v. Sessions, 105 236; Wood v. Willis, 110 454; Rollins o. Townsend, 118 224. 132. But an award, which substantially dis- poses of the entire controversy, suffices, although it does not precisely follow the terms of the submission. Thus, a submission to determine how much shall be paid for the grant of a right of way, is sufficiently answered by an award that nothing should be paid. Sears v. Vincent, 1,8 A.) 90 507. 133. So where the submission is to determine all controversies between A and B, or how far a building contract was performed by A, and what deductions should be allowed to B, an award of a certain sum to A suffices. Strong v. Strong, $ C.) 63 560; Bige- low v. Maynard, (4 C.) 58 317; Shirley v. Shattuck, (4 C.) 58 470. 134. So an award against the plaintiff, and giving costs to the defendant, is a sufficient dis- position of a set off or counter demand. Hodges v. Hodges, 9 320; Hardens. Harden, (11 G.) 77 435. 135. For other instances of the application of this rule, under the particular circumstances of each case, see Brown *. Bellows, (4 P.) 21 79- Leavitt v. Comer, (5 C.) 59 129; Tall- man v. Tallman, (5' C.) 59 325; Strong v. Strong, (9 C.) 63 560; Sohiera. East- erbrook, (5 A.) 87 311; Mickles o. Thayer, (14 A.) 96 114; Blackwell v. Goss, 116 394; Holyoke Mach. Co. u. Franklin P. Co., 97 150. 136. Where all controversies are submitted, the presumption is that all were decided; and the party impeaching the award for incomplete- ness must show that some were omitted • Tallman v. Tallman, (5 0.) 59 325; Leavitt v. Comer, (5 C.) 59 129; Strong v. Strong, (9 C.) 63 560; Sperry «. Bicker, (4 A.) 86 17. 137. The party benefited by the omission cannot object to the award for that reason. Warfleld v. Holbrook, (20 P.) 37 531. 138. An award must be certain; but it is not void for uncertainty, merely because it is condi- tional or in the alternative, if the condition does not involve future litigation. Comm. ». Pejepscut Prop'rs, 7 399; Skillings v. Coolidge, 14 43. 139. An award that one party pay to the other a certain sum, less the amount of certain sums not fixed, or capable of being fixed, by the award, is void for uncertainty. Fletcher v. Webster, (5 A.) 87 566. 140. But a direction to pay a certain sum at a certain time, with interest until paid, is suffi- ciently certain. Skeelsu. Chickering, (7 Met.) 48 316. _ 141. For rulings upon the question of suffi- cient certainty in particular awards, see Vol. 1—8 Whitney «. Cook, 5 139; Day v. Laflin, (6 Met.) 47 280; Clark u. Burt, (4 C.) 58 396; Brown «. Evans, (6 A.) 88 333; Benson v. White, 101 48. 142. An award must be final; and where the arbitrators do not decide the principal matter committed to them, the award is not a bar to an action; and, if the submission is statutory, or "by rule of court, it will be recommitted to the arbitrators. Houston d. Pollard, (9 Met.) 50 164; Lincoln v. Whittenton Mills, (12 Met.) 53 31; Paine 1> Paine, (15 G.) 81 299, Fletcher v. Webster, (5 A.) 87 566; Estes ». Mansfield, (6 A.) 88 69; Smith v. Holcomb, 99 552. 143. But every reasonable intendment will be made in support of the finality of the award; and a general award that nothing is due, or that the plaintiff pay costs, or the like, will be pre- sumed to be final. Peters v. Peirce, 8 398; Buckland v. Conway, 16 396; Stickles v. Arnold, (1 G.) 67 418; Sears v. Vincent, (8 A.) 90 507. 144. The rule that the award must be certain and final means, not that nothing shall remain to be done to complete the execution of the award, but that the thing to be dote shall be determined and defined to a reasonable cer- tainty. Strong v. Strong, (9 C.) 63 560. 145. An award is void unless it is mutual; that is, it must bind all the parties to the sub- mission; and where the consideration of the submission, by one party, is an agreement, by the other, to do an act which he is not legally competent to do, the submission and the award are void. Yeamans v. Teamans, 99 585. 146. And where a submission, under seal, is modified orally, so as to include other matters, which are determined by the award, the latter is void as to both parties. Copeland v. Wading R. Res. Co., 105 397. 147. But if, by reasonable intendment, it ap- pears that the. award binds both parties, it is good, although the object is not effected as to each party in the same mode. Jones D. Boston Mill Corp'n, (6 P.) 23 148; Caldwell «. Dickinson, (13 G.) 79 365. 148. An oral award is sufficient upon a com mon law submission, unless the submission stipulates for a written award. Murdock v. Blesdell, 106 370. 149., Where the submission requires the award to be in writing, and delivered by a cer- tain day, it suffices if the award is seasonably executed and delivered to one of the arbitrators, and by him read to the parties. Rundell v. La Fleur, (6 A.) 88 480. 150. But where, in a similar case, the arbi- trators stated, at the time of reading the award, that it might be erroneous as to a boundary line, and if so it would be corrected, and deliv- ered copies to the parties; and afterwards the chairman of the arbitrators corrected it, but it was not again signed by the others; it was held that neither the original or the amended award could be specifically enforced. Caldwell v. Dickinson, (13 G.) 79 365. 58 AEBITEATION, V, (4), (5). 151. Where a lease provides that arbitrators shall fix the future rent, and indorse it upon the lease, it is not sufficient to make an award upon a separate paper, and annex it to the lease. Montague «. Smith, 13 396. 152. An award under a statutory submission is good, if the parties were actually heard, although it does not recite that fact. Leominster v. Eitchburg & W. R. R., (7 A.) 89 38; "Warner v. Collins, 135 26. (4.) Interpretation of an award. [See, also, ante, V, (3).l 153. Awards were formerly construed with great strictness, but are now construed liberally, in order that the intent of the arbitrators may be effected; for which purpose the court will look into the subject of the controversy, the agree- ment of reference, and the circumstances of the case. Gordon v. Saxonville Mills, (14 A.) 96 . 219; per Chapman, J. See, also, Leonard v. Root, (15 G.) 81 553. 154. Where an award directs a division of certain property, and a payment in cash by one party to the other, the cash payment is not an independent part of the award, so as to render it attachable on trustee process, without per- formance of the residue of the award. Shearer v. Handy, (22 P.) 39 417. 155. Where referees report that a transaction is valid, unless a fact stated renders it fraudu- lent, the report is deemed to refer the. question to the court as matter of law, not of fact. Gould v. Ward, (4 P.) 21 104. See, also, under the act of 1786, Lyman v. Arms, (5 P.) 22 213. (5.) Effect; oral evidence to qualify or explain. [As to the effect of an award, as a bar to a subse- quent action, see, also, 1<"ormer Adjudication.] 156. Where an award requires payment by one party of a certain sum, in full of the claim of the other to certain chattels, the chattels thereby become the property of the former, although the payment is not made. Scott v, Perley, 98 511. 157. Although the submission purports to in- clude all demands between the parties, it may be shown that a particular demand was not presented to, or passed upon by, the arbitrators; in which case a general award is not a bar to an action upon that claim; and the arbitrators are competent witnesses to show the fact. Webster v. Lee, 5 334; Hodges «. Hodges, 9 320; Badger v. Titcomb, (15 P.) 32 409; Doolittle*. Dwight, (2 Met.) 43 561; Hodges v. Hodges, (5 Met.) 46 205; King v. Savory, (8 C.) 62 309; Hale v. Huse, (10 G.) 76 99; Cook ii. Jaques, (15 G.) 81 59; Edwards e. Stevens, (1 A.) 83 315; Evans «. Clapp, 123 165. 158. But an award, within the arbitrators' ap- parent powers, which, expressly or by necessary implication, passes upon the particular claim, cannot be collaterally impeached or explained, by oral evidence that it was not passed upon by mistake, etc., either in the submission, the pro- ceedings, or the award; or otherwise to construe the award. Newburyportlns. Co. v. Oliver, 8 402; Goodridge v. Dustin, (5 Met.) 46 363; Searle v. Abbe, (13 G.) 79 409; Everett v. Charlestown, (12 A.) 94 93; Davis v. Henry, 121 150; Cook «. Gardner, 130 ' 313. See, also, Ward ». Gould, (5 P.) 22 291; Withington v. Warren, (10 Met.) 51 431 ; Bigelow v. Maynard, (4 C.) 58 317; Clark ■». Burt, (4 C.) 58 . 396; Leavitt «. Comer, (5 C.) 59 129; Parker v. Parker, 103 167; Wiggin v. Atkins, 136 292. 159. And an award of damages for flowing land, by means of a dam, is not a bar to an ac- tion 'for subsequent injury by the continuance of the dam. Hodges v. Hodges, (5 Met.) 46 205. 160. So an award of damages for breach of a contract, is not a bar to an action for subse- quently incurred damages. Hale v. Huse, (10 G.) 76 99. 161. An award for use and occupation is prima facie, but not conclusive, evidence, that the party was then the tenant of the other party. Withington v. Warren, (12 Met.) 53 114. 162. An award, under a statutory submission, of damages for a tort, is not a bar to an action against a joint tort feasor, until judgment thereon. Todd v. Old Colony, etc., R. R.,(3 A.) 85 18. 163. Oral evidence is admissible, where there is any doubt upon the face of the submission or award, to show that the submission or award was not final. Huntsman r, Nichols, 116 521. 164. A conditional award is not a bar, unless the condition has been fulfilled. Comm. v. Pejepscut Prop'rs, 7 399. 165. An award, that a party is entitled to cer- tain land, does not require the other to make him a conveyance. Loring v. Whittemore, (13 G.) 79 228. 166. An oral submission and an oral award bar an action upon simple contract; but on a question of boundary, they are only evidence. Homes v. Aery, 12 134; Byam v. Robbins, (6 A.) 88 63. 167. An award in favor of partners, upon a submission by one, may be discharged by pay- ment to the other, unless the debtor has notice that the former alone is entitled to the money. Peters v. Peirce, 8 398. 168. A valid award is binding without ratifi- cation. Sears v. Vincent, (8 A.) 90 507. 169. An award of partition among heirs is not valid without proof of a submission, al- though forty years old. Burghardt v. Turner, (12 P.) 29 534. 170. An agreement to refer a matter in dis- pute, upon which an award has been made under a former submission, is a waiver of the first award, and bars an action thereupon. Rollins v. Townsend, 118, 224. ARBITRATION, VI; VII. 59 VI. Proceedings in Court to vacate ob ENFORCE THE AWARD. 171. A judgment of the court cannot be ren- dered upon an award, unless it was made under a statutory submission. Kingsley v. Bill, 9 198; Baton v. Arnold, 9 519; Shearers Mooers, (19 P.) 36 308. 172. And if an action is referred by rule of court, and the parties, by consent, submit other matters to the referees, judgment cannot be rendered upon the report. Shearer v. Mooers, (19 P.) 36 308. 173. The court can only reject, affirm, or re- commit a report; but if the plaintiff relinquishes a part, it may render judgment for a sum less than that reported. Coram, v. Pejepscut Prop'rs, 7 399; Phelps ». Goodman, 14 252. 174. Under the act of 1786, if a reference, by rule of court, was defective, the judgment was that the parties go without day, and costs were not awarded to either. Jones v. Hacker, 5 264. 175. The court may act upon the award only, upon satisfactory proof that the submission was lost, and of the contents thereof. Eaton i). Hall, (5 Met.) 46 287. 176. An award under a statutory submission may be recommitted, with directions to amend it, by certifying whether all the arbitrators attended. Blood v. Eobinson, (1 C.) 55 389. 177. Under a general recommitment, the ar- bitrators' powers are the same as under the sub- mission; they may annex original papers, and state the grounds of their decision. French v. Richardson, (5 C.) 59 450. See, also, under the act of 1786, Whitney v. Cook, 5 139; Boardman v. England, 6 70; May «. Haven, 9 325. 178. Judgment upon an award for the abate- ment of a dam, or other nuisance, may be exe- cuted by the sheriff. Berkshire W. Co. v. Day, (12 C.) 66 128. 179. Judgment upon an award for compen- sation for the right to take tolls on a bridge, will not be refused because the bridge has been destroyed since the award. In re Sunderland Bridge, 122 459. 180. A party to a statutory submission can- not, after his motion to set aside the award has been overruled, assign the same reasons upon a motion to set aside the submission. Cowley ?). Dobbins, 131 327. 181. Nor can a party, after his exceptions to an order accepting an award have been over- ruled, renew his motion to set aside the award, and support it hy new evidence. Fay 1). Bond, (3 A.) 85 433. 182. The decision of the superior court upon an award may be reviewed upon exceptions. Eaton v. Hall, (5 Met.) 46 287; Con- rad i . Massasoit Ins. Co. (4 A. ) 86 20. See,, also, under the act of 1820, Millers. Miller, (2 P.) 19 570; Olney v. Brown, (2 P.) 19 572. 183. An appeal lies for matter apparent upon the record. Skeels v. Chickering, (7 Met.) 48 316; Ward v. American Bk., (7 Met.) 48 486; French ». Richardson, (5 C.) 59 450. 184. As to a writ of error under the former statutes, see Short v. Pratt, 6 496; Lyman ». Arms, (5 P.) 22 213; Day v. Laflin, (6 Met.) 47 280; Hendersons Adams, (5 C.) 59 610; Horton v. Wilde, (8 G.) 74 425. 185. Upon such an appeal, an affidavit, used as evidence in the superior court, upon objec- tions to the award, or a memorandum of the judge, giving his reasons for his decision, is not a part of the record, and, if sent up, will be disregarded. Standish v. Old Colony R. R., 129 158; Warner v. Collins, 135 26. 1861 The subject of costs is discretionary with the court below, and its decision cannot be reviewed on exceptions. Bond ». Fay, (1 A.) 83 212. 187. A judgment setting aside an award under a statutory submission, because it in- cludes claims which cannot be so submitted, is not a bar to an action upon an agreement to perform the award, annexed to the submission. Hubbell v. Bissell, (15 G.) 81 551. 188. A bill in equity will not lie to set aside an award for mistake of the arbitrators, or fail- ure to determine all matters submitted. Mickles v. Thayer, (14 A.) 96 114. 189. Nor will such a bill lie on the ground of newly discovered evidence, which is only cumu- lative. Plymouth «. Russell Mills, (7 A.) 89 438. VII. Action upon the Award. 190. By the 'common law of Massachusetts, corruption, partiality, misbehavior, excess of authority, or gross errors or mistakes, on the part of trie arbitrators, are pleadable in bar in an action upon the award. Bean «. Farnam (6 P.) 23 269; Strong i). Strong, (9 C.) 63 560. 191. Evidence is admissible, in defence of the action, that the arbitrators refused to con- sider and pass upon a claim submitted to them, by the defendant. Edwards «. Stevens, (1 A.) 83 315; Rollins v. Townsend, 118 224; Gay- lord v. Norton, 130 74. 192. Assumpsit lies upon a common law award for money, after publication, but not till then. Kingsley e. Bill, 9 198; Bates v. Curtis, (21 P.) 38 247. 193. A bill in equity lies for specific per- formance of an award to convey land. Jones v. Boston Mill Corp'n, (4 P.) 21 507; Penniman ». Rodman, (13 Met.) 54 382; Caldwell e. Dickinson, (13 G.) 79 365. 194. An award upon a common law submis- sion of an action, rejected for want of au- thority, on the part of the court, to enter judg- ment thereupon, will sustain an action. Carpenter v. Edwards, (10 Met.) 51 200. 195. The declarations of the arbitrators, after the award was made, are not evidence to im- peach it; but their testimony is admissible to 60 AEEEST AND FALSE IMPEISONMENT, I, (1). impeach it for improper conduct, or other suffi- cient cause. Strong v. Strong, (9 C.) 63 560; Hub- bell v. Bissell, (2 A.) 84 196. [See, also, ante, art. 157.] Architect. [See Arbitration, art. 21 to 83.] Army. [See United States Forces.] Arraignment. [See Practice, II, (3).] Arrest and false imprisonment. I. Arrest in a civil Cause. (1.) When, how, and by whom made. (2.) Privilege and exemption from arrest. II. Arrest in a criminal Cause. (1.) Process to authorize; officer's powers. (2.) Arrest without process. III. Action for false Imprisonment. [ For rulings relating to the prison limits, see Jail. For rulings under the poor debtor's act, see Poor Debtor. For rulings on i diotments for resisting an officer, see Assauijt and Battery, I ; Indict- ment, VIII, (8).] I. Arrest in a ctvil Cause. CI.) When, how, and by whom made. 1. G. S., Ch. 124, § 8, P. S., Ch. 162, § 26, forbidding an arrest after sundown, without a certificate, does not apply to an execution for costs only. In re Stone, 129 156. 2. Sufficiency of a certificate for that pur- pose. Stewart v. Griswold, 134 3J1. 3. An arrest is deemed to have been made by an officer having process, when made by another, under oral directions from the officer, although not in his presence. Comm. v. Field, 13 321. 4. An arrest is effected by the officer laying his hand upon the arrested person, although he does not succeed in holding him; or by the arrested person submitting to the power of the officer, although the latter does not touch him. Whithead v. Keyes, (3 A.) 85 495. 5. The outer door or window of a man's dwelling-house cannot lawfully be broken by an officer to arrest him, or a member of his family, or his permanent lodger or boarder, upon civil process; but it may be broken, after a reason- able demand, to arrest a stranger or a mere visitor. Oystead s. Shed, 13 520. [See, also, Attachment. I, (5).] 6. "Where a dwelling-house is double, with two outer doors, and an officer, with an execu- tion against B, enters A's outer door, with A's consent, he may lawfully break open a door opening into B's part, if it is of common use to both families; otherwise not. Stedman v. Crane, (11 Met.) 52 295. 7. A defendant in equity may be arrested under a ne exeat. Rice v. Hale, (5 C.) 59 238. See, also, Comm. v. Sumner, (5 P.) 22 360. 8. Where an attachment has been made on mesne process, a subsequent arrest on the same process is illegal. Almy v. Wolcott, 13 73. 9. Where the writ contains no count or dec- laration, an arrest thereunder is illegal. Brigham «, Bste, (2 P.) 19 420. 10. Where the plaintiff discovers that the bail taken on arrest are insufficient, he may dis- continue the action, and re-arrest the defendant in a new action for the same cause, if done in good faith, and not oppressively. Jewett v. Locke, (6 G.) 72 233. 11. If the date and return day of the writ are changed, after making the statutory affida- vit for an arrest, an arrest thereunder is illegal. Amadon *. Mann, (3 G.) 69 467. 12. Where there are two defendants, and the statutory affidavit does not clearly show which one is intended, neither can be arrested. Hitchcock v. Baker, (2 A.) 84 431. See, however, Abbott v. Tucker, (4 A.) 86 72, post, art. 19. 13. For rulings as to the form of the statu- tory affidavit, and the magistrate's certificate, see Marsh «. Bancroft, ll Met.) 42 497; Haynes v. Saunders, (11 C.) 65 537; Stone v. Carter, (13 G.) 79 575; Wood v. Melius, (8 A.) 90 434; Smith *. Bean, 130 298. 14. In an action brought upon a judgment, founded upon a debt contracted with intent not to pay it, the debtor may be arrested, without notice, under P. S., Ch. 162, § 17, fifth charge. Way ii. Brigham, 138 384. 15. Under G S., Ch. 124, § 5; P. S. Ch. 162, § 17, a magistrate cannot issue a certificate in the case specified in subdivision 1, without notice to the defendant to appear and be examined. Carleton «. Akron S. Pipe Co., 129 40. 16. Where an application is made under sub- division 1, and is granted without notice, it is presumed to have been granted under subdi- vision 5. Way «. Brigham, 138 384. 17. A master in chancery, appointed for one county, cannot authorize an arrest in another county, in a case under subdivision 1. Newmarket Bk. ■». Cram, 131 204. 18. If a magistrate refuses to grant a certifi- cate under that subdivision, the creditor may apply for an arrest under either of the other subdivisions; and if he includes subdivision 1, that charge may be rejected as surplusage. In re Frost, 127 550. 19. Where there are two defendants, an affi- davit under that subdivision, which states that ARREST AND FALSE IMPRISONMENT, I, (2); II, (1), (2). 61 "the defendants has property," is regarded as bad grammar only, and includes both. Abbott v. Tucker, (4 A.) 86 72. 20. If the magistrate is the attorney for the judgment creditor, his certificate is void, and the debtor's recognizance to obtain his discharge is void. McGregor v. Crane, 98 530. 21. But not if he is the attorney's clerk; although he afterwards represents the attorney, by appearing and consenting to an adjourn- ment. Knight ii. Sampson, 99 36. 22. See, further, as to matters of form in the affidavit and certificate, Webbers. Davis, (5 A.), 87 393; Man- uel i). Bates, 104 354. 23. An affidavit is not necessary, to justify an arrest under an execution for costs in a writ of entry. Hildreth v. Bingham, (12 A.) 94 71. 24. "Where an application for a certificate is made under St. 1877, Ch. 250, § 1; P. S., Ch. 162, £ 18, the notice to the debtor to appear for examination on the 8th day of the month, at 9 a. m., left at his abode, a little over a mile from the place of examination, on the 4th of the month, at 7 p. M., is sufficient. Stewart v. Griswold, 134 391. 25. A husband may be arrested under an exe- cution, issued upon a decree for alimony, with- an affidavit. Chase n. Ingalls, 97 524; Poster v. Foster, 130 189. [As to arrest for non-payment of taxes, see Taxa- tion, VII, (3); as to the application ot tbe defendant to take the poor debtor's oath, and proceedings thereupon, see Poor Debtor.] (2.) Privilege and exemption from ar- rest. 26. A grand or petit juror has no occasion for a writ of protection. If a juror or any other person, whose duty brings him to court, whether as a party or a witness, is arrested upon civil process while attending the court, or eundo et redeundo, the court, upon motion, will take order for his discharge. In re McNeil, 3 288; Comm. v. Hug- geford, (9 P.) 26 257. 27. A party thus arrested may be discharged upon habeas corpus, although a party to a case stated. Ex parte McNeil, 6 245. 28. If a party returning from court deviates, as to attend a son's funeral, he forfeits the pro- tection. Chaffee v. Jones, (19 P.) 36 260. 29. A witness attending, who has not been summoned, is not protected, although he has a writ of protection ; but a witness attending vol- untarily from another State, is protected with- out such a writ. Mi parte McNeil, 6 264; May v. Shum- way, (16 G.) 82 86. 30. This rule extends to a witness appearing before a committee of the legislature. In re Thompson, 122 428. 81. A creditor of a decedent, attending a meeting of commissioners upon the estate-, is protected. Wood v. Neale, (5 G.) 71 538. 32. The privilege of a party, etc., is per- sonal, and is waived by submitting to the ar- rest. Brown v. Getchell, 11 11. 33. A member of the house of representa- tives of the Commonwealth, who has been ex- pelled by that body, is no longer protected. Hiss ii. Bartlett, (3 G.) 69 468. 34. A married woman cannot be arrested upon mesne proces . Comm. n. Badlam, (9 P.) 26 362. 35. A person who has been taken in execu- tion, and discharged under the poor debtor's act, cannot be arrested on mesne process in an action on the judgment. Willington v. Stearns, (1 P.) 18 497; In re Davis, 111 288. 36. Under the present statute, a spendthrift under guardianship cannot be arrested, by vir'.ue of an execution, upon affidavit and certificate. In re Blake, 106 501. 37. Qu., whether he could have been under the former statute. Ex parte Leighton, 14 207; Conant v. Kendall, (21 P.) 38 36; per Shaw, Ch. J. 38. An infant is not liable to arrest upon a civil process. In re Cassier, 139 458; Cassier v. Fales, 139 461. II. Arrest in a criminal Cause. (1.) Process to authorize; officer's pow- ers. 39. For a ruling whether a person was suffici- ently arrested in a peculiar case, see Comm. ii. Kennedy, 136 152. 40. An officer with a warrant, issued upon a criminal charge, who has reasonable cause to believe that the defendant is in the dwelling house of another, may, after notice and de- mand of admission, break the outer door and reasonably search for the defendant, although the latter is in fact not there. Barnard v. Bartlett, (10 C.) 64 501; Comm. v. Irwin, (1 A.) 83 587; Comm. ii. Reynolds, 120 190. 41. He is not bound, unless required, either to name the defendant or exhibit the warrant. Comm. n. Irwin, (1 A.) 83 587. 42. An officer is not bound to exhibit his warrant before securing the defendant, if he resists Comm. v. Cooley, (6 G.) 72 350. 43. Under the act of 1791, a warrant for travelling on Sunday cannot be executed on Sunday. Pearce v. Atwood, 13 324. 44. A warrant issued by a justice of the peace to a private person is void. Comm. v. Foster, 1 488. 45. An officer who arrests a person has no right to detain him longer than necessity re- quires. Tubbs v. Tukey, (3 C.) 57 438. (2.) Arrest without process. 46. A person may be arrested without war- rant, by oral direction of a magistrate, for an 62 AEEEST AND FALSE IMPRISONMENT, II, (2); III. assault committed in his presence; and, if he escapes, a constable, acting upon such oral di- rection, may pursue and retake him, and break doors for the purpose. Comm. n. McGahey, (11 G.) 77 194. 47. An insane person may be arrested by an officer without a warrant, if he is dangerous, or breaks the peace; otherwise not, although the officer acts in good faith, under the oral direction of his superior. Look v. Dean, 108 116. 48. A person may be arrested by a constable or peace officer, without warrant, upon reasona- ble grounds to believe that he has committed a felony; and for that purpose the officer may break doors. Rohan v. Sawin, (5 C.) 59 281; Comm. v. Carey, (12 C.) 66 246; Comm. n. McLaughlin, (12 C.) 66 615; McLen- non «. Richardson, (15 G.) 81 74. 49. A constable or peace officer may also ar- rest, without warrant, and take before a magis- trate, any person committing a breach of the peace, or other violation of law, in his presence; and may retake such person, if, upon being re- leased upon his promise to go home, he goes at once into a bar-room. Comm. v. Hastings, (9 Met.) 50 259; Comm. n. Tobin, 108 426. 50. And he may, for that purpose, enter, through an unfastened door, a house where there is a noise amounting to a disturbance of the peace. Comm. v. Tobin, 108 426. 51. But he may not forcibly enter a shop to arrest persons drinking and gambling, but not breaking the peace, although on Sunday. McLennon v. Richardson, (15 G.) 81 74. 52. An officer may arrest, without a warrant, a person obstructing him in executing a war- rant; and if the evidence is conflicting, whether the arrest was before or after the obstruction had ceased, the question is for the jury. Leddy v. Crossman, 108 237. 53. Drunkenness is not an offence for which a person may be arrested without warrant. Comm. v. O'Connor, (7 A.) 89 583. 54. An officer who arrests, in good faith, for drunkenness, without a warrant, under St. 1876, Ch. 17; P. S., Ch. 207, § 25, is liable to an action, but not to criminal proceedings, if the person arrested was not in fact intoxicated. Phillips 1>. Padden, 125 198; Comm. v. Cheney, 141 102. [See, under the act of 1855, Comm. v. Presby, (14 G.) 80 65.1 55. So where he omits to take the person arrested before a magistrate, and make a com- plaint, unless the parties agree that the proceed- ings shall drop. Brock ii. Stimson, 108 520; Phillips v. Fadden, 125 198. 56. A conviction the next day after the arrest, is not conclusive evidence, in favor of the offi- cer, that the person arrested was then drunk. Comm. v. Cheney, 141 102. 57. The statute covers the case of a person guilty of the crime of drunkenness as defined by statute. Comm. v. Coughlin, 123 436. 58. And one resisting an officer making such an arrest may be convicted of the assaidt, al- though he was acquitted of the charge of drunk- 6HH6S3 Comm. v. Coughlin, 123 436. 59. The statute is satisfied, if the officer pro- cures another person to make the complaint, and is ready to testify thereupon. Gainey v. Parkman, lOO 316. 60. Under the act of 1869, the officer was liable if he took the person arrested before a trial justice of an adjoining town, although there was no trial justice or police court in the town where the arrest was made. Papineau v. Bacon, 1 lO 319. ■ For cases relating to the arrest, without a warrant, ofpersons illegally transporting spirituous liquors, see Intoxicating Liquors, VII. For other cases relating to arrest for drunkenness, see Druken- NBSS.] III. Action tor false Imprisonment. [See, also, ante, I, II.] 61. A person, illegally arrested in a civil action, who sues and recovers judgment against the plaintiff in the action, which is satisfied, cannot afterwards maintain a separate action against the officer, although he counts upon a different defect in the papers, and proves malice in the officer. Luce v. Dexter, 135 23. 62. But a recovery, in an action commenced during the imprisonment, is not a bar to an action brought after it had ceased. Leland v. Marsh, 16 389. 63. Assault and false imprisonment will not lie, although malicious prosecution will, if there was no probable cause, against one who causes the plaintiff's arrest upon a lawful war- rant, although obtained by misrepresentation. Coupal v. "Ward, 106 289; Mullens Brown, 138 114. 64. But, semble, that a legal warrant is no protection, if the object of the arrest is to extort money, and the defendant procured the warrant for that purpose, or otherwise partici- pated in the object. Hackett v. King, (6 A.) 88 58. 65. If the magistrate, who issued the warrant, had no jurisdiction of the complaint, the com- plainant is liable, although the warrant is valid upon its face. Emery v. Hapgood, (7 G.) 73 55. 66. A judgment creditor, who takes out exe- cution by mistake of the clerk, while the debtor's appeal from the taxation of the costs is pending, and causes the debtor to be arretted, is liable. Winslowo. Hathaway, (IP.) 18 211. 67. So is a plaintiff, under the present stat- ute, who causes the defendant to be arrested upon mesne process, without the proper affida- vit, etc. Cody v. Adams, (7 G.) 73 59. 68. A person committed under two warrants, one only of which is illegal, can, at most, re- cover only nominal damages against the magis- trate. Doherty «. Munson, 127 495. 69. The action will not lie, unless the plain- ARSON, AND OTHEE CEIMINAL BURNING. 63 tiff was actually arrested; as if lie is induced, by threats of criminal proceedings, to go witli the defendant and conceal himself, no force be- ing used or threatened. Payson v. Macomber, (3 A.) 85 69. 70. And an imprisonment does not necessa- rily include an assault. Sawyer v. Ryan, (13 Met.) 54 144. 71. For rulings as to the right of a parent to maintain an action against overseers of the poor, or officers of a charitable institution, for detaining a child, see Smith v. Peabody, 106 262. 72. One who is arrested upon a void execu- tion, and gives a bond for the limits, cannot recover, for remaining within the limits, ac- cording to the terms of the bond. Allen v. Shed, (10 C.) 64 375. 73. But a debtor, illegally arrested, does not waive the illegality, by recognizing before the magistrate, under the poor debtor's act, and •ubmitting to examination, and taking the oath. Carleton v. Akron S. P. Co., 129 40. 74. The rescinding of an order of the court, directing the sheriff to take a convict into cus- tody and execute the sentence, and the subse- quent making of a new order, directing the ex- ecution of the sentence, do not render the sher- iff liable, unless he detained the convict after the first order was rescinded, and before the second was made. Coffin v. Gardner, (1 G.) 67 159. 75. Where the question of probable cause arises upon conflicting evidence, it must be submitted to the jury. Mitchell v. Wall, 111 492; Paget v. Cook, (1 A.) 83 522. false imprisonment, against a person aiding an officer to arrest him upon an execution. Cassier v. Fales, 139 461. 76. Probable cause defined. Mitchell d. Wall, 111 492. [For other rulings as to probable cause, see Ma- licious Prosecution, I, (3).] 77. It is not evidence of malice, to show that the defendant purchased from another the note upon which the action was brought, in which the plaintiff was illegally arrested. Underwood v. Brown, 106 298. 78. Evidence is competent, upon the question of damages, to show how the plaintiff fared in prison, if he was treated as well as others there. , Hall ». Hall, (3 A.) 85 5. 79. In an action against a magistrate, it is competent to show, that after conviction and sentence to pay a fine, the defendant suffered the plaintiff to go at large for ten weeks, and then issued a mittimus for the purpose of ex- torting money. Fisher v. Deans, 107 118. 80. In an action against a sheriff, the instruc- tions from the judgment creditor are competent evidence in favor of the defendant. Richmond ». Willis, (13 G.) 79 182. 81. In an action against a magistrate for issuing a mittimus pending an appeal, the de- fendant cannot justify by proof of an oral waiver of the appeal. Qu., if the evidence is admissible in mitigation, Kendall v. Powers, (4 Met.) 45 553. 82. An infant cannot maintain an action for Arrest of judgment. [See Judgment, in.] Arson, and other criminal burning. [As to the sufficiency of the indictment, see IN- DICTMENT, VIII, (").] 1 . For rulings under the provision of the act of 1830, whereby the capital offence was miti- gated where no person was lawfully within the dwelling see Comm. v. Buzzell, (16 P.) 33 153. 2. As to the effect of the reduction of the punishment where the crime was committed under the former statute, see Comm. v. Wyman, (12 C.) 66 237. 3. It is not an offence, either by statute or al common law, for a man to burn his own store, without intent to injure another. Blossu. Tobey, ,2 P.) 19 320. 4. And an indictment for burning another's dwelling is not sustained by proof of burning, by the owner's procurement, to enable him to obtain the insurance money, Comm. v. Makely, 131 421. 5. There is now no difference between the term "dwelling house," as used in the defini- tion of burglary and in that of arson ; if the house had never been occupied by the owner, it is not a dwelling house. Comm. v. Barney, (10 C.) 64 478. 6. " Curtilage," as used in the statute, means a fence or other inclosure, inclosing the build- ings occupied in connection with the dwelling house; it may wholly or partly consist of the exterior sides of the buildings. If the build- ings are separated from the dwelling, and not within a common inclosure, the question whether they are part of the dwelling house is for the jury, under the instructions of the court. Comm. v, Buzzell, (16 P.) 33 153; Devoe v. Comm , (3 Met. ) 44 316; Comm. v. Barney, (10 C.) 64 478. 7. The common law rule that arson is com- mitted, although but a small portion of the building is burned, is not changed by statute. Comm. i) Van Schaack, 16 105; Mead v. Boston, (3 C.) 57 404. 8. As to the common law offence, see Comm. v. Wyman, (12 C.) 66 237. 9. Whether the building has been so affected by fire, as to constitute a burning within the statute, is for the jury. Comm. ». B'etton, (5 C.) 59 427. 10. Proof that the wood was actually on fire, and the substance thereof was burned, although not actually destroyed, suffices, although the indictment alleges that the dwelling house was " burned and consumed." Comm. v. Tucker, HO 403. 11. The word " building" does not import a finished building, and an indictment is suffi- 1 cient, which describes the building as ' ' erected 6i AESON— ASSAULT AND BATTEEY, I. for a dwelling house, and not yet completed or inhabited." Comm. «. Squire, (1 Met.) 42 258, 12. Burning property with intent to defraud insurers is a single crime, although ,two or more insurers have policies on the property. Comm. v. Goldstein, 114 272. 13. Evidence that the value of the property was less than the insurance, procured shortly before the fire, is competent upon such an in- dictment. Comm. v. Hudson, 97 565. 14. So is a suggestion, made to an insurance broker by the defendant, shortly before the fire, to increase the insurance. Comm. ii. Bradford, 126 42. 15. The defendant, in answer to proof of over insurance, cannot show that the property was mortgaged for more than its value. Co:nm. v. McCarthy, 119 354. 16. Where, upon an indictment for burning a building, the fire was discovered at 6 a. it., and the defence was that the defendant was, all the previous night, and till 11 a. m. next day, in another town, a witness for the prosecution may state the substance of a conversation with the defendant, in the town where the fire oc- curred, at 8 a. m. of that day. Comm. •». Allen, 128 46. 17. Upon the question of intent to burn a building, the prosecution may show, that a few days previously the defendant set fire to the same building, or to a shed near the building, and connected therewith by steps. Comm. v. Harney, (10 Met.) 51 422; Comm. ». McCarthy, 119 354; Comm. v. Bradford, 126 42. 18. An office copy of a deed, with proof of occupation, is evidence of the ownership of the building, as alleged in the indictment. Comm. v. Preece, 140 276. 19. t-emble, that burning, in the day time, a building formerly occupied as a shop, and in process of being converted into a dwelling, is not felonious. Mead v. Boston, (3 C.) 57 404. 20. As to burning stacks of hay under the act of 1804, see Comm. v. Macomber, 3 254. 21. For rulings, relating to evidence upon the trial of an indictment for burning a building, by means of a box, exclusively adapted to incend- iary purposes; respecting the effect of an anony- mous letter, written by the defendant, concern- ing such boxes; and the finding of a similar box upon his premises, see Comm. 1). Choate, 105 451. 22. A building removed and fitted up for a school and engine house, by a city, is a "build- ing erected for public use," within the statute. Comm. v. Horrigan, (2 A.) 84 159. 23. The defendant cannot maintain a writ of error upon a judgment upon an indictment for arson, on the ground that the building burned was not a dwelling house, as charged in the in- dictment, and that it was not the property of the person named as the owner in the indict- ment. Those questions cannot be retried on the writ of error. Joan v. Comm., 136 162. Assault and battery. I. Criminal Proceedings. II. Action eok Damages. [See, also, Action; Arrest; Kidnapping; Tres- pass.! I. Criminal Proceedings. [For rulings as to ,he sufficiency of the indictment, see Indictment, VIII, (is); as to assauit with intent to ravish, or to abuse a female child, see Kape.) 1. Where a man got into a woman's bed, without otherwise touching her person than by removing the bed clothes, it was held that he could be convicted of an assault. Comm. v. Hagenlock, 140 125. 2. Every touching of another's person, wil- fully or in anger, without his consent, is a bat- tery, unless justifiable; but, if justifiable, it is not necessarily either a battery or an assault. Comm. v. Clark, (2 Met.) 43 23. 3. An assault and battery consists in the un- lawful • and unjustifiable use of force and vio- lence upon the person of another, however slight. If justifiable, it is not an assault and battery. Comm. o. McKie, (1 G.) 67 61. 4. If the criminal intent is wanting, the case is not made out; but the wrongful intent is a necessary conclusion, from the unreasonable and excessive use of force upon the person of another, where the act was designedly com- mitted. Comm. ii. Randall, (4 G.) 70 36. 5. Whether the defendant was so far intoxi- cated as to be unable to form a guilty intent, is for the jury. Comm. v. Hagenlock, 140 125. 6. Menacingly pointing an unloaded gun at one, who has reasonable cause to believe it to be loaded, and who is reasonably put in 'fear thereby, is an assault. Comm. v. White, 110 407. 7. Firing, recklessly, a loaded pistol at one, and hitting him, is an assault and battery, al- though the defendant did not know that it was loaded. Comm. v. McLaughlin, (5 A.) 87 507. 8. Fighting with fists, by consent, although without anger or ill-will, is an assault by each participant. Comm. v. Collberg, 119 350. 9. Delivering a thing to be eaten, with knowl- edge that it conta.ns an injurious substance, is an assault and battery upon him who ignorantly eats it, and is injured in health. Comm. v. Stratton, 114 303. 10. Causelessly inflicting a blow upon a tres- passer upon land, before notifying him to leave, is an assault and battery. Comm. i). Dougherty, 107 243. 11. Exposing a child of tender years, in the defendant's keeping, without proper clothing, and in the night time, is an assault. Comm. v. Stoddard, (9 A.) 91 280. 12. A tenant in common, who forcibly re- moves his co-tenant, or the latter's agent, from the land, is guilty of an assault, although the ASSAULT AND BATTEEY, I. 65 latter was engaged in a tresspass upon the for- mer's personal property thereupon. Comm. v. Lakeman,, (4 C.) 58 597; Comm. n. Rigney, (4 A.) 86 316. 13. One who interferes with an officer serv- ing criminal process, not knowing that he is an officer, but intending merely to quell a fight, is guilty of an assault, if he uses unnecessary force. Comm. v. Cooley, (6 G.) 72 850. 14. But where the officer was a policeman in uniform, the defendant is chargeable with knowledge; and proof of that fact, and that he was then so acting, suffices. Comm. «. Tobin, 108 426. 15. And evidence that the officer had publicly acted as a policeman for four years previously, is sufficient evidence of his official character. Comm. v. Kane, 108 423. 16. Any act of a defendant, after arrest, which amounts to a resistance or obstruction of the officer, is an assault upon the officer in the discharge of his duty; and any act, word, or sign of a person present, which aids, abets, or approves of that resistance, is a simple assault. And where a third person uses actual violence towards the officer, a bystander who, by words only, abets or approves of the act, is guilty of an assault upon the officer. Comm. ii. Cooley, (6 G.) 72 350; Comm. o. Hurley, 99 433. 17. A married woman cannot be punished for an assault, committed in presence of and under command of her husband, and if husband and wife are jointly indicted, the former may be convicted and the latter acquitted. Comm. v. Neal, 10 152. See, also, Martin*. Comm., 1 347; per Sedgwick, J., p. 391. 18. One who negligently drives over another is not punishable criminally for an assault and battery, although he is violating a city ordi- nance against fast driving. Comm. v. Adams, 114 323. 19. A parent, to whom the custody of a child has been awarded by a decree for a divorce, is guilty of an assault, by the use of force upon the person of an occupant of a house, where the child is, in endeavoring to effect an entrance. Comm. v. Beals, 133 396. 20. Intoxication neither justifies nor excuses an assault and battery. Comm. v. Malone, 1 14 295. 21. The word "felonious" is used in the sta- tute, as descriptive of the temper and disposi- tion of the offender, not of the legal character of the offence. Comm. ». Barlow, 4 439; Comm. e. Newell, 7 245. 22. Snatching a bank bill from the owner's hand, without intent to touch his person, is not an assault with force and violence, with intent to steal, although his hand is actually touched. Comm. n. Ordway, (12 C.) 66 270. 23. "Where an indictment and a civil action are pending for the same assault and battery, the court will not stay proceedings upon the in- dictment, if the party injured is not to be a wit- ness for the prosecution. Comm. v. Elliott, 2 372. 24. "Where an indictment sufficiently charges an assault and battery, though failing to charge Vol. 1—9 the aggravated offence of cutting, etc., a motion to quash, and a motion for leave to plead spec- ially to the charge of assault and battery, are properly denied. Comm. v. Blaney, 133 571. 25. A schoolmaster is not guilty of an assault, for a reasonable and moderate castigation of a pupil, proportioned to the offence and the age and powers of endurance of the latter; but he is guilty for a punishment in excess of those requirements. Comm. v. Randall, (4 G.) 70 36. 26. A person is justified in using reasonable force to prevent violence to his person or prop- erty. Comm. v. Kennard, (8 P.) 25 133; Comm. v. Clark, (2 Met.) 43 23. 27. Or to remove from his premises, or those of his principal, a person who refuses to leave upon request. Comm. v. Clark, (2 Met.) 43 23; Comm. v. Power, (7 Met.) 48 596; Comm. «. Dougherty, 107 243. 28. "Where one, who has been often ordered off the premises of a railroad company, which he entered to solicit custom from passengers, buys a ticket and enters to take passage, the superintendent is not punishable for removing him without unnecessary force, if he neither exhibits his ticket, nor gives notice of his inten- tion to become a passenger. Comm. v. Power, (7 Met.) 48 596. 29. A mother may use reasonable force to protect her daughter from an indecent assault, although the daughter -is sixteen years of age; and if the man strikes her while she is so doing, he is guilty of an assault and battery. Comm. v. Malone, 114 295. 30. The owner of goods, who is in possession thereof, is justified in defending his possession against an officer, who attempts to seize them under process against another. Lomm. ii. Kennard, (8 P.) 25 133. 31. Wherever the defence is that force was justifiably used, the degree of force used must liaye been reasonable, and not disproportionate to the requirements of the case; and whether it was so, is for the jury, under instructions from the court. Comm. v. Clark, (2 Met.) 43 23; Comm. «. Goodwin, (3 C.) 57 154; Comm. i>. Randall, (4 G.) 70 36; Comm. v. Ford, (5 G.) 71 475; Comm. v. Bush, 112 280; Comm. v. Mann, 116 58; Comm. v. Kennedy, 136 152. 32. Evidence of an assault with a dangerous weapon will support a complaint for an assault, alleged to have been committed without a weapon dangerous to life. Comm. v. Burke, (14 G.) 80 100. 33. Upon the trial of a man for an assault by taking indecent liberties with a woman, the de- fendant may show that her reputation for chas- tity is bad. Comm. v. Kendall, 1 13 210. 34. Upon a like trial, the woman may be asked, upon cross-examination, if she promised to kiss him; and, if she denies it, the defendant may prove that she did so promise. Comm. v. Bean, 111 438. 35. If the defendant does not set up any dis- tinct and independent fact in defence, the bur- 66 ASSAULT AND BATTERY, I; II. den of proof, to show that an assault and battery was unjustifiable, is upon the prosecution. Comm. «. McKie, (1 G.) 67 61. 36. Upon the trial of an indictment for as- saulting A, the record of conviction of A for an assault and battery on the same day on the de- fendant, is not admissible to show that the defendant acted in self-defence. Comni. r. Lincoln, HO 410. 37. An assault with intent to kill is not a felony at common law. Comni. v. Barlow, 4 439. 38. Upon an. indictment for an assault with intent to kill, where the judge instructed the jury that, if they should find that the assault was committed by wanton and reckless acts, the ordinary and natural consequence of which would be the death of the person assaulted, they would be justified in convicting; it was held that this instruction did not assume that such acts constituted the intent, but were evi- dence from which the jury might infer it. Comm. «. Reynolds, 120 190. 39. Where the jury, upon the trial of an in- dictment for an assault with intent to kill, were instructed to return a sealed verdict, and re- turned it in this form, "guilty on the first count of an assault; not guilty on the second count," and separated; and on the coming in of the jury the next day, in answer to the clerk's question, they stated that they found him "guilty of an assault with a knife, without the intent to kill and murder;" it was held that it did not conclu- sively appear that the jury, before separating, found the defendant guilty of the same crime, of which they found him guilty by their oral verdict, and that the verdict must be set aside. Comm. D. Walsh, 132 8. 40. For Tulings upon questions of evidence, relating to the defendant's intent, and to his knowledge that a pistol, with which he wounded another, was loaded, see Comm. v. McLaughlin, y5 A.) 87 507. II. Action foe Damages. 41. Any person, present at the commission of an assault and battery, or other trespass, en- couraging or exciting the same by words, ges- tures, looks, or signs, or otherwise countenanc- ing or approving the same, is liable as a princi- pal; and from the fact that he was so present without disapproval, the jury may, in connec- tion with other circumstances, infer that he so aided and abetted the same. Sikes v. Johnson, 16 389; Brown v. Perkins, (1 A.) 83 89; Comm. «. Hur- ley, 99 433. 42. But mere presence, without approval of or participation in the assault, will not render a person liable, although he approved of the transaction out of which the affray grew. Miller «. Shaw, (4 A.) 86 500. 43. A corporation is liable for an assault and battery, committed by its servant, in the course of his employment; and the corporation and the servant may be sued jointly. Moore i>. Fitcliburg R. B., (4 G.) 70 465; Hewett «. Swift, (3 A.) 85 420; Holmes v. Wakefield, (12 A.) 94 580; Coleman v. N. Y. & N. H. R. R., 106 160. \Yov additional rulings upon this point, see CArt- bier, II, (3).] 44. Any violence, which, from the relations of the parties, one has a right to inflict on another, is not an assault, as in the case of a schoolmaster and his pupil, or a shipmaster and a seaman; but the punishment must be reason- able, and not disproportionate to the necessities of the case; and the question whether it was so is for the jury. Sampson v. Smith, 15 365; Hannen e. Edes, 15 347. [See, also, ante, art. 25.] 45. If, in the prosecution of a lawful act, an accidental casualty arises, it will not lay the foundation of an action. Brown v. Kendall, (6 C.) 60 292; Fitzgerald v. Cavin, 1 10 153. 46. A landlord, having the right to possession, may, after notice, forcibly eject the tenant or occupant under him, without breach of the peace, and using no more force than is neces- sary; and if an unforeseen injury occurs to the tenant, from a fact not within the landlord's knowledge, he is not liable. Meader v. Stone, (7 Met,) 48 147; Mugford v. Richardson, (6 A.) 88 76; Low v. Elwell, 121 309; Stone v. Lahey, 133 426. 47. As to excess of force in such a case, see Sampson v. Henry, (11 P.) 28 379; explained, Low «. Elwell, 121 309. 48. It is not a justification for an assault, that the defendant had an irrevocable license to enter upon the plaintiff's land, to remove his chattels, and the plaintiff withstood his entry. Churchill «. Hulbert, 110 42. See, also, Drury v. Hervey, 126 519; White v. Swain, 138 325. 49. A complainant is not liable for an assault, by causing one to be arrested upon a lawful warrant, although he obtained it by misrepre- sentation. Coupal v. Ward, 106 289. 50. An officer who, in good faith, arrests a person as being intoxicated in a public place, (G. S., Ch. 207, § 25), is liable to an action, although not to a criminal prosecution, if, in fact, the person was not intoxicated. Comm. v. Presby, (14 G.) 80 65; Phillips v. Fadden, 125 198. 51. A priest, about to administer the sacra- ment to a sick person, has no right, forcibly, to remove from the room one who is lawfully there. Cooper v. McKenna, 124 284. 52. One guilty of a wilful assault and battery cannot show, that the effects of the injury were aggravated by the plaintiff's intemperate habits. Littlehale v. Dix, (11 C.) 65 364. 53. The burden of proof to establish a justi- fication rests upon the defendant, including the degree of force used. Loring v. Aborn, (4 C.) 58 608; St. John v. E. R. R., (1 A.) 83 544; Blake v. Damon, 103 199. 54. This rule applies, where the defendant relies upon a prior assault by the plaintiff. . Brown v. Gordon, (1 G.) 67 182. _ 55. For rulings upon questions of justifica- tion, under the peculiar circumstances of a par- ticular case, see Tyson v. Booth, 100 258. ASSAULT AND BATTEEY, II— ASSIGNMENT, I. 67 56. For rulings upon questions of license to ' Brown i>. Gordon, (1 G.) 67 182; White v. Swain, 138 325. 57. "Where the defendant, to show provoca- tion, is allowed, without objection, to prove that the plaintiff had previously charged him with a crime, it is error to allow the plaintiff to introduce evidence, tending to prove the truth of the charge. Mowry v. Smith, (9 A.) 91 67. [For rulings respecting damages, see Damages, IV, (1); IV, (3).] 58. The manner, motive, place, and circum- stances of the assault, and other matters merely in aggravation 'of damages, may be proved without being specially pleaded. Heminway v. Saxton, 3 222; Sampson i>. Henry, (11 P.) 28 379. See, also, Sampson v. Henry, (13 P.) 30 36; over- ruled, Eames v. Prentice, (8 C), 62 337. 59. A defendant seeking to justify an assault must, under the practice act, as before, specially plead his justification. Blake «. Damon, 103 199; Levi v. Brooks, 121 501; Cooper v. McKenna, 124 284. 60. Where the action is brought against two officers for an illegal arrest, the declaration containing only one count, and the plaintiff proves a joint illegal arrest, and a separate as- sault by one, while he was in custody, he must elect upon which he will rely. Gainey v. Parkman, lOO 316. [For other rulings upon pleadings, see Hannen v. Edes, IS 347; Sampson *. Henry, (11 P.) 28 379; and Pleading.] Assembly, disturbance of. [See Disturbance op Meeting.] Assessment. [See Corporation, II; III; Highway, IV; Insur- ance Company, II, (3); Taxation, III; IV; VI; Town and City, VI.] is subsequently filled in, see Alteration of In- strument. For other rulings relating to assign- ments, see, also, Fraud, III; Gift, I; Order; Sav- ings Bank, II; Trustee Process, IV, (1). For rul- ings respecting assignments of particular instru- ments, see Bill op Exchangf and Promissory Mote, 11; Insurance, 111, (6); IV, (2); IV, (3' V, (4); Mortgage, l, (6). 1 Assessor of damages. [See Auditor.] Assessor of taxes. [.See Taxation, VI.] Assignment. I. What operates as an Assignment. II. What is ok is not assignable. III. Validity and Effect. IV. Actions and Defences founded upon assigned Demands. V. Assignment for Benefit of Creditors. [As to the effect of an assignment, executed and delivered with the assignee's name in blank, which I. What operates as an Assignment. 1. An equitable assignment of a judgment may be made orally. Dunn v. Snell, 15 481. 2. An assignment of an instrument not under seal, including a contract to convey land, may be made made orally, or by an unsealed instru- ment. Quiner v. Marblehead Ins. Co., lO 476; Currier®. Howard, (14 G.) 80 511. 3. An assignment of an instrument required to be under seal, must be under seal, unless the instrument itself is delivered, in which case an oral assignment suffices. Mowry v. Todd, 12 281; Dennis v. Twitchell, (10 Met.) 51 180; Brewer «. Dyer, (7 C.) 61 337; Bridgham i>. Til- eston, (5 A.) 87 371. 4. But mere delivery is not sufficient. Warden v. Adams, 15 233. 5. Delivery of a note, a chattel mortgage, or other personal security, with intent to transfer the debt, is a good assignment. Jones v. Witter, 13 304 ; Grover 1>. Grover, (24 P.) 41 261 ; Crain «. Paine, (4C.) 58 483; Norton v. Piscataqua Ins. Co., Ill 532. 6. A power of attorney, irrevocable, to re- ceive money to the use of the attorney, or a third person, is prima facie an assignment; but not where the attorney is to account therefor to the principal. Gerrish v. Sweetser, (4 P.) 21 374; Hall v. Jackson, (20 P.) 37 194; Weed v. Jewett, (2 Met.) 43 608. 7. Delivery of a savings bank book, with in- tent to assign or transfer the deposit, operates as such an assignment; and may be made causa ■mortis. Kingman v. Perkins, 105 111; Kim- ball ii. Leland, HO 325; Fossa. Lowell F. C. Sav. Bk., Ill 285; Pierce v. Boston F. C. Sav. Bk., 129 425; Taft v. Bowker, 132 277. [See, also, Savings Bank, II.] 8. An executory agreement to assign is not an assignment at law; nor is is it an equitable assignment of a chose in action, or property not in existence. Foster v. Lowell, 4 308; Walker v. Russell, (17P.) 34 280; Moody v. Wright, (13 Met.) 54 17; Palmer v. Merrill, (6 C.) 60 282; Stearns o. Quincy Ins. Co., 124 61. 9. A conveyance of land, which belonged to one deceased, will be construed in equity as an assignment of the grantor's interest under the will in the proceeds, after sale by the executor. Putnam v. Story, 132 205. 10. An order, given for a valuable considera- tion, by a creditor upon a debtor, requiring him to pay the debt to another, is an assign- ment, even of sums thereafter to become due 68 ASSIGNMENT, I; II. under the same contract, and binding upon the drawee, if accepted by him. Qu., whether it is not binding upon notice merely. Cutts v. Perkins, 12 206; Adams v. Robinson, (1 P.) 18 461; Cushman v. Haynes, (20 P.) 37 132, Bourne v. Cabot, (3 Met.) 44 305, Palmer ». Mer- rill, (6 C.) 60 282; Tripp v. Brownell, (12 C.) 66 376; Benson v. "Whitney, (12 C.) 66 234; Kingman «. Perkins, 105 111; Corbett v. Pitchburg R. R., HO 204; Hall ii. Dorchester Ins. Co., Ill 53. See, also, Obdee. 11. But such an order is a mere authority to pay, and so is revocable: unless it was given for a valuable consideration, and has been ac- cepted, or notice thereof given to the drawee. Carriqueu. Sidebottom,(3Met.) 44 297, Brown v. Poster, (4 C.) 58 214; Hart- ley v. Tapley, (2 G.), 68 565; Langdon v. Langdon, (4 G.) 70 186; Taylor v Lynch, (5 G.) 71 49; Lannan v. Smith, (7 G.) 73 150; Papineau v. Naumkeag S. C. Co., 126 372; "White v. Coleman, 127 34. [See, further, aa to the right to maintain an action upon such an order. Contract, I, (3); Assumpsit, arts. 10 to 12.] 12. And, unless the order is for the full amount due to the drawer, the drawee's assent is necessary. Gibson v. Cooke, (20 P.) 37 15; Bull- ard, (1 G.) 67 605. 13. An assignment is not invalidated by an error in the description of the assigned prop- erty, if enough remains, after rejecting the error, to identify the property. Drury v. Morse, (3 A.) 85 445. 14. A check upon a bank for more than the drawer's balance, gives the payee no interest, unless the bank agrees to pay it pro tanto. Dana v. Boston Third Nat. Bk., (13 A.) 95 445. 15 A draft for a sum certain, payable at sight to the order of a bank named, and con- taining a direction to change it to a particular account, is a bill of exchange, not payable out of a particular fund, and not an assignment of the fund. "Whitney v. Eliot Nat Bk. 137 351. [See, alsn, Bill of Exchange and Promissory Note, i, Hi; Order.] II. "What is or is not assignable. [See, also, Trustee Process, IV.] 16. A right of entry upon land for breach of a condition is not assignable. Thompson v. Bright, (1 C.) 55 420, Guild v. Richards, (16 G.) 82 309, Trask ^.Wheeler, (7 A.) 89 109; Rice v. i oston & "W. R. R., (12 A.) 94 141. 17. Covenants which run with the land are assignable, and pass to the grantee; but a cove- nant of seisin, or of good right to convey, is not assignable. Marston v. Hobbs, 2 433; Bickford v. Page, 2 455; "Wyman ». Ballard, 12 304; Sprague v. Baker, 17 586. 18. A personal trust, such as a master's right to his apprentice's serviees, cannot be assigned. [See Apprentice, arts. 23 to 25.] 19. A claim for damages for a personal injury, not in judgment, is not assignable. Stone v. Boston & M. R. R., (7 G.) 73 539; Rice v. Stone, (1 A.) 83 566; Lin- ton «. Hurley, 104 353. 20. The share of a seaman in prizes captured by a privateer is not assignable. Usher v. D'Wolfe, 13 290. 21. But future wages, or a salary thereafter to accrue, or a share in future profits to be re- ceived in lieu of wages, under any other exist- ing contract or employment, may be assigned; and the assignment will reach an increased rate of wages subsequently allowed; or wages under a new agreement, made in continuation of the first, or otherwise; but not with a new em- ployer. Gardner v. Hoeg, (18 P.) 35 168; "Weeds. Jewett, (2 Met.) 43 608, Brack- ett «. Blake, (7 Met.) 48 335; Emery v. Lawrence, (8 C.) 62 151; Tripp v. Brownell, (12 C.) 66 376; Hartley «. Tapley, (2 G.) 68 565; Taylor v Lynch, (5 G.) 71 49; Taylor v. Collins, (5 G.) 71 50, note; Lannan i>. Smith, (7 G.) 73 150; Wallace v. "Walter H. C. Co., (16 G.) 82 209; Boylen v. Leonard, (2 A.) 84 407; Macomber v. Doane, (2 A.) 84 541; St. Johns v. Charles, 105 262; Lightbody v. Smith, 125 51. 22. Aliter, if the contract or employment is not existing at the time. Mulhallu. Quinn, (1G.) 67 105; Hart- ley ii. Tapley, (2 G.) 68 165; Twiss v. Cheever, (2 A.) 84 40; Herbert v. Bronson, 125 475. 23. A right reserved to the grantor of land, to enter and quarry, or mine, or take water, or repair pipes or drains, or the like, is assignable. Munn «. Stone, (4 C.) 58 146; Good- rich v. Burbank, (12 A.) 94 459; French v. Morris, lOl 68; Owen v. Field, 102 90; Stockbridge I. Co. e. Hudson I. Co., 107 290; Hankey v. Clark, HO 262; Amidon ». Harris, 113 59. 24. A right of fishing given by statute is as- "Watertown v. "White, 13 477. 25. So is a bond to convey land. Ensign ».. Kellogg, (4 P.) 21 1. 26. So, semble, is a mortgagee's statutory right to redeem. Bigelow v. "Willson, (1 P.) 18 485. 27. So is a judgment; but after one judgment debtor has paid, it cannot be assigned and col- lected from another judgment debtor for the former's benefit. Allen e. Holden, 9 133; Brown e. Maine Bk. , 11 153 ; Dunn ®. Snell, 1 5 481; Adams v. Drake, (11 C.) 65 504. 28. But a note, taken up by an indorser, may be assigned by him, and collected from parties liable over to him. Boylston v. Greene, 8 465; Guild v. Eager, 17 615. [See, also, Bill of Exchange and Promissory Note, II, v.] 29. A book-debt, account, contract, under seal or otherwise, or any other cause of action rest- ing upon a contract, although unliquated and contingent, is assignable. ASSIGNMENT, III. 69 Dix D.Cobb, 4 508; Crocker «. Whit- ney, 10 316; Cutts v. Perkins, 12 206- Macomber ?>. Parker, (14 P.) 31 497- Gardner i>. Hoeg, (18 P.) 35 168: Bourne v. Cabot, (3 Met.) 44 305; Has- kell v. Blair, (3 C.) 57 534; Barle v. Brickford, (6 A.) 88 549. 30. So is a contingent interest, under a will, in Teal and personal property, dependent upon the re-marriage of the widow. Fay v. Sylvester, (2 G.) 68 171. 31. So is a vested interest in real and personal property, dependent upon the termination of a precedent life estate. Putnam v. Story, 132 205. III. Validity and Effbct. [See, also, Conflict or Laws; and IV, pos«.] 32. An assignment is valid, as respects attach- ing creditors, or other third persons, without notice to the debtor or person in possession. Wakefield i>. Martin, 3 558; Dix v. Cobb, 4 508; Wood v. Partridge, 11 488; Prov. Co. Bk. v. Benson, (24 P.) 41 204; Warren v. Copelin, (4 Met.) 45 594; Richards v. Smith, (9 G.) 75 315, Martin v. Potter, (11 G.) 77 37; King- man v. Perkins, 105 111; Thayer v. Daniels, 113 129. 33. But unless notice is given to the debtor, or person in possession, a release from, or other settlement with, the assignor will protect him. Jones v. Witter, 13 304; Dunn ». Snell, 15 481 ; Eastman v. Wright, (6 P.) 23 316; St. Johns v. Charles, 105 262. 34. If, however, the assignor is an infant, and rescinds the assignment, he may discharge the debtor, even as against an assignee from the assignee, who has no notice. Willis ®. Twambly, 13 201. 35. An assignment of a chose in action is good, against a subsequent purchaser for value, without notice to the debtor. Putnam «. Story, 132 205. 36. An assignment of a chose in action, made in fraud of creditors, is void against them, under our law and the law of New York. Drake «. Rice, 130 410. 37. An assignee has power to assign to another, or to re-assign to the assignor. Clark «. Parker, (4 C.) 58 361. 38 An assignment by one of all his interest in his deceased father's estate, does not affect a trust, created by the father, before his death, for the assignor's benefit. Belknap v. Belknap, 128 14. 39 Nor does an assignment of money due for labor include a contract to build a house. Keefe v. Plynn, 1 16 563. 40. Where one has conveyed land in fee, and has taken back a bond to reconvey, the assign- ment of the bond, does not pass the right to redeem. Porter v. Millet, 9 101. 41. An assignment of a real property mort- gage passes the debt, no other security having been given for it. Jones i>. Huggeford, (3 Met.) 44 515. 42. A conveyance with warranty, of part of the land, upon which a railroad corporation has filed a location of its railroad, does not pass the right to damages, but the grantor is entitled to the damages, and liable on his broken covenant. N. Y. & N. B. R. R. «. Drury, 133 167. 43. Where a person has procured his_ insured property to be burned, and assigns his claim under the policy to his creditor, to whom the insurance company pays it, neither having notice, the creditor is not liable to repay it. Merchants' Ins. Co. i>. Abbott, 131 397. 44. A written assignment, given merely as security for a debt, is cancelled by mere pay- ment of the debt. Swett «. Boyce, 134 381. 45. An assignment by a mortgagee of chat- tels, with the assent of the mortgagor, of part of the notes secured thereby, with "so much of the mortgaged property " as will amount to the notes, does not pass a title to any of the goods, as against a bona fide purchaser from ihe mortgagee, although the assignment is re- corded. French . Sproat, (3 Met.) 44 303; Macomber «. Weeks, (3 Met.) 44 512; Hobartj). Andrews, (4 Met.) 45 263; Carter v. Sibley, (4 Met.) 45 298; Pitch v. Workman, (9 Met.) 50 517; Noyes v. West, (3 C.) 57 423; Zipcey v. Thompson, (1 G.) 67 243. Association. [Joint stock, see Joint Stock Association. Ben- evolent, benefic : ary, etc., see Charity; Benevo- lent Association. Loan and fund, ee Loan and Fund Association. Religious, see Religious As- sociation.! Vol. I— 10 Assumpsit [and action of contract heretofore known as assumpsit]. I. The Action in general. (1.) Where it lies generally. (2.) Where it does not lie. (3.) Waiving a tort and bringing assumpsit. II. Where a special Count is or is not NECESSARY. III. The general Counts. (1.) For money lent. (2.) For money had and received. (3.) For money paid, laid out, and expended. (4.) For work, labor, and services. (5.) For good's bargained and sold, and goods sold and delivered. (6.) Upon an account stated, or an account annexed, (See Account.) IV. Practice; Pleadings; Evidence. [JFor additional rulings relating to assumpsit upon particular causes of action, i rid actions by or against paiticular persons, see, also, .Agency; Carrier; contract; Duress; Exhcutorand Administra- tor, V; Guaranty; Inn and Inn-keeper; Joint Tenants and Tenants in Common, I, (3); II; Land- lord and Tenant, VII, (1); VLT, (2); Master and Servant, I, III ; Partnership ; Seward, offer of ; JSi rety. See, also, generally, Account; Ac- tion; Covenant; Evidence ; Parties. By G. S., Cb. 119, 8 ]; P. S., Ch. 367, § 1, ''actions of contract," are constituted one of three divisions of personal actions, "which includes "those heretofore known as actions of assumpsit, covenant, and debt, except for penalties."] I. The Action in general. CI.) Where it lies generally. 1. Assumpsit lies for work and labor under a sealed contract, which has been rescinded by consent, or subsequently varied by oral agree- ment. Hill v. Green, (4 P.) 21 114; Munroe v. Perkins, (9 P.) 26 298; Milldam Foundry ». Hovey, (21 P.) 38 417; Bassett v. Sanborn, (9 C.) 63 58. 2. So where a seal was unnecessary, and the plaintiff has justifiably abandoned the con- Cook v. Gray, 133 106. [See, also, post, art. 30.] 3. It lies against the devisee of land charged with a legacy or annuity. Swasey v. Little, (7 P.) 24 296; Felch 1). Taylor, (13 P.) 30 133; Sheldon v. Purple, (15 P.) 32 528; Adams v. Adams, (14 A.) 96 65. 4. And against the grantee in a deed, for the non-payment of a mortgage upon the land, or the non-performance of other duties, imposed by the terms of the deed, and forming part of the consideration thereof. Goodwin «. Gilbert, 9 510; Fletcher v. McFarlane, 12 43; Guild ». Leonard, (18 P.) 35 511; Newell*. Hill, (2 Met.) 43 180; Pike v. Brown, (7 C.) 61 133; Maine i>. Cumston, 98 317; Pren- tice v. Brimhall, 123 291; Lappen v. Gill, 129 349. 74 ASSUMPSIT, I, (1), (2), (3). 5. It lies upon a contract made in another state, with a scroll for a seal, which is there a specialty by statute. McClees ». Burt, (5 Met,) 46 198. 6. Or upon a foreign judgment. Buttrick ®. Allen, 8 273. 7. It lies by a broker for his commission in procuring a charter party, to which he is not a party, and which is under seal, and provides for payment of his commissions. Bruce ». Parsons, (12 C.) 66 591. 8. It lies against a corporation, for refusing to issue to the plaintiff a certificate of his shares, or to recognize him as a shareholder. Gray v. Portland Bk., 3 364; Sargent v. Franklin Ins. Co., (8 P.) 25 90; Wy- man ft American Powder Co. (8 C.) 62 168. 9. It lies upon an implied promise, to dis- charge an obligation created by statute. Bath ®. Freeport, 5 325; Watson v. Cambridge, 15 286; Quincy Canal ■». Newcomb, (7 Met.) 48 276; Central Bridge ft Abbott, (4 C.) 58 473. (2.) Where it does not He. 10. In general, assumpsit will not lie, where there is no actual privity of contract between the plaintiff and the defendant, and where the consideration does not move from the plaintiff. Thus, a promise by one to another, for the benefit of a third, who is a stranger to the con- sideration, will not support an action by the latter. Arnold v. Lyman, 17 400; Hall ®. Marston, 17 575; Fisher e. Ellis, (3 P.) 20 322; Cabot «. Haskins, (3 P.) 20 83; Felch *. Taylor, (13 P.) 30 133; Carter v. Gault, (13 P.) 30 531; Carne- gie ft Morrison, (2 Met.) 43 381; Fitch ft Chandler, (4 C ) 58 254; Mellen ®. Whipple, (1 G.) 67 317; Millard*. Bald- win, (3 G.) 69 484; Field v. Crawford, (6 G.) 72 116; Dow v. Clark, (7 G.) 73 198; Colburn ®. Phillips, (13 G.) 79 64; Frost ft Gage, (1 A.) 83 262; Flint ii. Pierce, 99 68; Putnam v. Field, 103 556; Exch. Bk. ®. Rice, 107 37; Pettee ®. Peppard, 120 522; Gamwell v. Pomeroy, 121 207; Cottage St. Ch. B.Kendall, 121 528; Prentice ®. Brim- hall, 123 291; Butler®. Frank, 128 29; Rogers*. Union Stone Co., 130 581; Clement «. Earle, 130 585, note; Farqu- har». Brown, 132 340; Morrill a. Lane, 136 93. 11. For other rulings relating to the privity between the parties, which must exist to enable the action to be maintained, see Mason ». Waite, 17 560; Milton v. Mosher, (7 Met.) 48 244; Burrows t>. Taft, (11 Met.) 52 259; West ®. Rice, (12 Met.) 53 541; Adams ft Nickerson, (1 A.) 83 427; Shute ®. Barnes, (2 A.) 84 598; Hills *. Bearse, (9 A.) 91 403; Cranson ®. Ockington, 118 409. 12. But where the promissor has in hand funds which, in equity and good conscience, be- long to the third person, the latter may sue upon an express or implied contract, with an- other, to pay him. Arnold *. Lyman, 17 400; Carnegie ft Morrison, (2 Met.) 43 381; Fitch ft Chandler, (4 C.) 58 254; Brewer ft Dyer, (7 C.) 61 337; Exch. Bk. «. Rice, 107 37. [tje», further, upon this question, Contract, I, (3).] 13. Assumpsit will not lie to recover the price of land, by one who has received a note therefor, which he has destroyed by a fraud- lent alteration. Wheelock v. Freeman, (13 P.) 30 165. 14. It lies to recover back part of the price paid for land, where the deed did not convey as much as was contracted for, the price being measured by the quantity. Pickman «. Trinity Church, 123 1. [See, however, post, art. 92.] 15. Assumpsit will not lie, where the effect of the action is to try the title to real property; but the rule applies only where the parties claim under a .verse titles. Codman ®. Jenkins, 14 93; Miller ®. Miller, (7 P.) 24 133; Bigelow®. Jones, (10 P.) 27 161; Boston ®. Binney, (11 P.) 28 1; Brigham «. Winchester, (6 Met.) 47 460. 16. It will not lie for breach of an express or implied contract, where the same agreament is contained in a sealed instrument. Kimball®. Tucker, lO 192; Richards ®. Killam, 10 239; Andrews ». Calen- der, (13 P.) 30 484. 17. And this rule holds where a lease has been assigned, and the tenant has orally prom- ised to pay rent to the assignee, but without a new consideration. Codman ®. Jenkins, 14 93; Brewer e. Dyer, (7 C.) 61 337. 18. It will not lie against a principal, whose agent, authorized to bind him by simple con- tract only, executed a deed in his name. Banorgee ®. Hovey, 5 11. 19. But where the party has furnished mate- rials, work, etc. , upon such an instrument, he may recover upon a quantum meruit.. Van Deusen «. Blum, (18 P.) 35 229. 20. It will not lie against an officer for neg- lect of duty; the proper remedy is case or debt. McMillan ®. Eastman, 4 378; Parker ® Dennie, (6 P.) 23 227. 21. Nor for a statute penalty, where case therefor is expressly given. Peabody ft Hayt, lO 36. 22. It will not lie for the price of a horse sold on Sunday, although the purchaser keeps him; trover is the proper remedy. Ladd «. Rogers, (11 A.) 93 209. 23. For rulings at the trial, affirmed upon exceptions, as to the burden of proof and pre- sumptions, in an action between two near rela- tions, to recover for board and lodging and ser- vices, furnished by one to the other, see Thurston ». Perry, 130 240; James *. Cummings, 132 78. (3.) Waiving a tort and bringing as- sumpsit. 24. One whose goods have been taken from him, or detained unlawfully, cannot waive the tort and maintain assumpsit, except against the executor of the wrong doer, unless the wrong doer has sold them; in which case he may affirm ASSUMPSIT, I, (3); II. 75 the sale, and sue for the proceeds, in assumpsit for money had and received. Jones 9 Hoar, (5 P.) 222 285; Allen 9. Ford, (19 P.) 36 217; Brown 9. Hol- brook, (4 G.) 70 102 ; Berkshire Glass Co. 9. Woleott, (2 A.) 84 227; Ladd v. Rogers, (11 A.) 93 209. 25. So where the wrong doer has manufac- tured them into a different article, which he has sold, and has received the money therefor. Gilmore®. Wilbur, (ISP.) 29 120. 26. Where A and B each had a lot of flour on storage with a warehouseman, who by mis- take delivers B's flour to C upon A's order, and C consumes it, C is not liable to the warehouse- man in tort or upon contract, for want of privity. Hills 9. Snell, 104 173. 27. One who tortiously takes goods, by virtue of a sale, made without authority, by a person assuming to act for the plaintiff, is liable in this form. Gilmore 9. Wilbur, (12 P.) 29 120. II. Where a special Count is ok is not NECESSARY. 28. A general indebitatus assumpsit will lie upon a special agreement, only where its terms have been fully performed, so as to leave a mere debt or duty resting upon the defendant; and this, although the performance is only substan- tial, and the defendant is entitled to deductions for slight deviations. Felton 9. Dickinson, 10 287; State Bk. i). ITurd, 12 172; Hayward v. Leonard, (7 P.) 24 181; Payson 9. Whitcomb, (15 P.) 32 212; Baker v. Corey, (19 P.) 36 496; Bates 9. Curtis, (21 P.) 38 247; Quincy Canal v. Newcomb, (7 Met.) 48 276; Hunneman v. Grafton, (10 Met.) 51 454;Knight9.N.E.W.Co.,(2C.) 56 271; Tebbetts 9. Pickering, (5 C.) 59 83; Morse r. Potter, (4 G ) 70 292; Hall 9. Wood, (9 G.) 75 60; Walker ». Orange, (16 G.) 82 193; Cardell 9. Bridge, (9 A.) 91 355; Powell 9. Howard, 109 192; Cullen r. Sears, 112 299; Lovell v. Earle, 127 546; Simmons v. Lawrence Duck Co., 133 298. See, also, Lowe 9 Pimental, 115 44, explained in Lovell 9. Earle, 127 546; and post, art. 205 to 207. 29. So where the promise was to pay money and do certain other things, and the defendant has performed all except the payment. Holbrook v. Dow, (1 A.) 83 397. 30. But where the plaintiff, after doing part of tbe work, rightfully abandons or rescinds the contract, he may recover upon a quantum mer- uit or an account annexed. Simmons 9. Lawrence Duck Co., 133 298; Cook 9. Gray, 133 106. See, also, Fitzgerald 9. Allen, 128 232; Ford 9. Burchard, ISO 424. [As to the right to rescind, see post, III, (2).] 81. A count in indebitatus assumpsit for goods sold imports that there was no credit, or that the credit has expired. Wilder 9. Colby, 134 377. 32. Where goods are sold under a contract to pay for them in town orders, payable at a future day, and the purchaser fails to procure them as stipulated, the count must be special, if the ac- tion is brought before they were to be payable; if afterwards, indebitatus assumpsit will lie. Hunneman 9. Grafton, (10 Met.) 51 454. See, also, Loring 1>. Gurney, (5 P.) 22 15, per Sewall, J.; Baylies 9. Fetty- place, 7 325. 33. Indebitatus assumpsit will lie, where the special agreement has been waived by consent; or where the defendant prevents the plaintiff from fulfilling it, or incapacitates himself from fulfilling it. Goodrich 9. Lafflin, (1 P.) 18 57; Munroe 9. Perkins, (9 P.) 26 298; Shearer 9. Jewett, (14 P. ) 31 232 ; Moul- ton 9. Trask, (9 Met) 50 577; Canada 9. Canada, (6 C.) 60 15; Johnson 9. Trinity Ch., (11 A.) 93 123. 34. So where the plaintiff was prevented from full performance by inevitable accident. Willington 9. Boylston, (4 P.) 21 101. 35. So where the plaintiff has failed to fulfil, but the other party, with knowledge, has ac- cepted partial performance. Bee Printing Co. v. Hichborn, (4 A.) 86 63. 36. So where the special agreement is void. Thurston 9. Percival, (IP.) 18 415. 37. But invalidity, within the statute of frands, will not authorize a party to maintain a quantum meruit, wheie the other party is will, ing to perform. Riley 9. Williams, 123 506. 38. A surety may sue his principal in indebi- tatus assumpsit, notwithstanding a special promise of indemnity, if the latter is only what the law would imply. Gibbs 9. Bryant, (1 P.) 18 118. 39. A general count cannot be maintained, where there was a special promise to pay in goods. Emerton 9. Andrews, 4 653. _ 40. And no contract can be implied, in addi- tion to an express contract in writing, relating to the same subject matter. Brown 9. Fales, 139 21. 41. The general counts suffice to enable the plaintiff to recover for board and lodging of the defendant, or his family or servants. Witter 9. Witter, lO 223; Tremainti. Edwards, (7 C.) 61 414; Raymond 9. Eldridge, 111 390. 42. Under a count, on an account annexed for board of the defendant's infant children, the plaintiff may show that the defendant ex- pelled them from his house, under circumstan- ces which render him liable. Raymond v. Eldridge, 111 390. 43. The plaintiff can maintain a special count upon a promise to pay his debt, before he has paid it; but not a count for money paid Smith 9. Pond, (11 G.) 77 234; Whit- ing 9. Aldrich, 117 582. 44. Indebitatus assumpsit will not lie by one town against another, for the support of a pauper chargeable to the latter. Requisites of the special count. Salem 9. Andover, 3 436; Wrentham 9. Attleborough, 5 430. 76 ASSUMPSIT, III, (1), (2). 45. Nor will it lie to recover back usurious interest paid, since the statute gives another remedy. Crosby v. Bennett, (7 Met.) 48 17. 46. "Where, under an oral agreement, for the exchange of lands, one party has executed his deed, and the other refuses to fulfil, and sells the land to another, an action for money had and received will not lie against the defaulting party; the declaration must be for the value of the land conveyed. Basford v. Pearson, (9 A.) 91 387. III. The general Counts. < 1.) For money lent. 47. The borrower of money, who gives a check therefor, requiring that it shall be held as evidence of the loan, and not presented to drawee, is liable to the lender in an action for money lent, without presentation to the drawee. Currier ». Davis, 111 480. 48. Where money is lent upon a general promise to repay, a subsequent promise, with- out a new agreement, to pay upon the happen- ing of a certain event, does not affect the plain- tiff's right to recover. Bobbins ». Potter, 98 532. 49. So where the lender receives a third person's note, which is ready to be surrendered at the trial. Marston v. Boynton (6 Met.) 47 127. 50. So where the lender receives the borrow- er's note, which, by a memorandum thereon, purports to be secured by a mortgage, where it was not so secured. Shaw «. Lowell Meth. Soc. , (8 Met.) 49 223. 51. A recovery can be had under this count for the balance, where the holder of a promis- sory note has surrendered it, under a mistaken impression that it had been fully paid. Baxter v. Paine, (16 G.) 82 273. 52. Neither a count for money lent, nor for money had and received, will sustain an action for money advanced on the credit of the defend- ant to his agent, who had no authority to bor- row it. Kelley v. Lindsey, (7 G.) 73 287; Railroad Nat. Bk. v. Lowell, 109 214. [See, alBo, Accoukt.] (2.) For money bad and received. 53. It is not necessary, in order to sustain a declaration for money had and received, that the defendant should have actually received the money. The receipt of a negotiable note,.where the defendant has made himself liable for the amount, will sustain the action. Floyd ».Day, 3 403; Randalls Eich, 11 494; Hemmenway v. Bradford, 14 121; Hemenwaya. Hemenway, (5 P.) 22 389; Fairbanks v. Blackington, (9 P.) 26 93;Payson«. Whitcomb, (15P.) 32 212; Mayo v. Peterson, 126 516. 54. The sale of goods without actually re- ceiving the money, will support the action by the owner. Appleton v. Bancroft, (10 Met.) 51 231. 55. The receipt of land, as money, will suf- fice. Randall ». Rich, 11 494; Miller v. Miller, (7 P.) 24 133. 56. Or chattels so received. Arms v. Ashley, (4 P.) 21 71. 57. Or a constructive receipt, by offsetting the debt against a demand due from the defendant. Emerson v. Baylies, (19 P.) 36 55. 58. But one who has merely given a bond to pay debts, is not liable in this form to a credi- tor. Johnson ». Foster, (12 Met.) 53 167. 59. And the receipt of a mortgage by a surety from the principal, by way of indemnity, does not authorize his co-surety to recover in this form. Sheldon v. Welles, (4 P.) 21 60. 60. And the receipt of money in a sealed package, where it was not opened, and the money was not appropriated to the defendant's use, will not suffice. Pitlock v. Wells, 109 452. 61. But an acknowledgment of the receipt of money will suffice, although in fact it was given for goods. Jackson v. Mayo, 11 147; Hill v. Rewee, (11 Met.) 52 268. 62. In general, where money is paid, by a mistake of fact, to one who had no right to de- . mand it, the party paying may recover back the amount paid in an action for money had and received, without a previous demand. Union Bk. «. U. S. Bk., 3 74; Pear- son ii. Lord, 6 81; Bond v. Hays, 12 34; Appleton Bk. v. McGilvray, (4 G.) 70 518; Andrews . McGilvray, (4 G.) 70 518; Quimbyo. Carr, (7 A.) 89 417. 69. An indorser, who, relying upon a notice of dishonor, pays the note, when, in fact, no legal demand upon the maker has been made, pays under a mistake of fact, and can recover back the amount. Garland v. Salem Bk., 9 408; Talbot v. Nat. Bk. Commonwealth, 129 67. 70. Where the bonds of the Commonwealth, issued in aid of a railroad, were, by mistake, received by the contractors for less than the current rate of exchange, and sold by them, the Commonwealth may recover the difference. Comm. v. Haupt, (10 A.) 92 38. 71. Where payment is made by a counterfeit bill, gu., whether it must be seasonably ten- dered back, to enable the action to be main- tained. Young 1>. Adams, 6 182; Gloucester Bk. ». Salem Bk., 17 33; Kent v. Bornstein, (12 A.) 94 342. 72. A mistake, through ignorance of the law . of another state, is a mistake of fact within the rule. Haven «. Foster, (9 P.) 26 112. 73. Where A becomes tenant in common with another, by a levy under a judgment, and afterwards recovers a judgment for his share of the rents and profits against his co-tenant, who pays it, and A's judgment is afterwards re- versed, the co-tenant may recover back the pay- ment. Lazell v. Miller, 15 207. 74. Where a sum is allowed, without fraud, as a settlement of a doubtful claim, it cannot be recovered back, unless it was paid upon erro- neous vouchers produced by the other party. Stuart v. Sears, 119 143. 75. Where a purchaser has paid for' more goods than he received, an unreversed judg- ment against him, upon a note for the purchase money, is not a bar to his recovery for the ex- cess. Whitcomb v. Williams, (4 P.) 21 228. 76. Where the vendor refuses to deliver all the goods bought for a gross sum, the vendee cannot recover back a part of the purchase money in this form of action. Miner v. Bradley, (22 P.) 39 457. 77. One who receives money from an execu- tor, under a mistaken interpretation of the will, is not liable for money had and received, to the person really entitled. Moore *. Moore, 127 22. 78. This rule is not varied by the fact that the money was paid under a decree in another state, to which the plaintiff was not a party. Rand v. Smallidge, 130 337. 79. A mortgagor who pays the entire mort- gage debt, without deduction for rents, while the premises were in the mortgagee's posses- sion, may recover the excess as money had and received. [See St. 1818, Ch. 98, § 3; G. S., Ch. 140, § 30; P. 8., Ch. 181, § 43.] Wood v. Felton, (9 P.) 26 171. 80. And the mortgagee in possession, who receives from the rents more than enough to pay the mortgage, is thus liable. Nugent v, Riley, (1 Met.) 42 117. 81. Money knowingly paid upon an illegal contract, or upon an illegal consideration, can- not be recovered back, where the parties are in pari delicto. Denny ». Lincoln, 5 385; Greenwood ij. Curtis, 6 358; Worcester e. Eaton, 11 368; Babcock ». Thompson, (3 P.) 20 446. [For additional cases, and rulings where the parties are not in pari delicto, see Betting and Gaming ; Contract, II, (2) ; III, (1).] 82. But money paid under an oral contract, void by the statute of frauds, cannot be recov- ered back, if the other party has performed, or is able and willing to perform. Ross v. Tremain, (2 Met.) 43 495; Coughlin «. Knowles, (7 Met.) 48 57. 83. It can be, however, if the other party re- fuses to perform. Kidder v. Hunt, (IP.) 18 328 ; Thomp- son v. Gould, (20 P.) 37 134; Williams «. Bemis, 108 91; White v. Wieland, 109 291; Dix v. Marcy, 116 416; Parker ». Tainter, 123 185. [See further, on this subject, Statute of Fkauds, I, (I)-] 84. And an action in disaffirmance of the illegal contract, where the parties are not in pari delicto, will lie, as where a corporation re- ceives money upon a contract, which is ultra vires. White v. Franklin Bk.. (22 P.) 39 181; Dill «. Wareham, (7 Met.) 48 438; Morville v. American Tract Soc, 123 129. 85. Money paid upon a fraudulent repre- sentation may be recovered back, although the representation was that it was to be used in a partnership between the payer and the re- ceiver. Bliss «. Thompson, 4 488; Dana v. Kemble, (17 P.) 34 545; Hale v. Wilson, 112 444. 86. Money fraudulently taken from one by his clerk, and paid to the defaulting teller of a bank, to enable him to conceal his deficit, may be recovered from the bank. Atlantic Bk. «. Mercli'ts Bk., (10 G) 76 532; Skinner v. Merch'ts Bk., (4 A.) 86 290. 87. As to the sufficiency of misrepresentations by a Roman Catholic priest, to enable one to recover back a subscription for building a church, sec Gorman v. Carroll, (7 A.) 89 199. 88. Money paid to free one's goods from an attachment fraudulently put on to extort money, may be recovered back. Chandler v. Sanger, 1 14 364. [See Ditress.] 89. So may money paid to save one's goods from sale, under a collector's warrant for an illegal tax, although it is paid without protest. Boston & S. Glass Co. v. Boston, (4Met.> 45 181. v ' 78 ASSUMPSIT, III, (2). 90. Money paid for a deed, or under a con- tract, executed by one having no authority, as a married woman, or an assignee in insolvency, or other trustee, without authority, may be re- covered back. Shearer v. Fowler, 7 31; Williams v. Reed (5 P.) 22 480; Claflin «. Godfrey, (21 P.) 38 1; Mlu Wareham, (7 Met.) 48 438; Earle v. Bickford, (6 A.) 88 549. 91. But not where the party has taken title by a deed which contains covenants of war- ranty. „ Earle v. De Witt, (6 A.) 88 520. 92 In the absence of fraud, money paid for a quit-claim deed cannot be recovered back, be- cause the grantor. had no title, or because the number of acres was less than stated in the deed, and represented by the grantor. Gates v. Winslow, 1 65; Wallis v. Wallis, 4 135; Williams v. Hathaway, (19 P.) 36 387. 93. Alittr, where the quantity of land ex- pressly measures the price. Pickman v. Trinity Church, 123 1; ante, art. 14. 94. Nor is a town liable for the purchase price of land sold at a collector's sale, where the title proved to be invalid, because the tax was illegally assessed. Lynde v. Melrose, (10 A.) 92 49. 95. Where the consideration of a contract has wholly failed, money paid thereupon may be recovered back, and a demand is unneces- sary if the defendant has notice. Spring v. Coffin, 10 31; Lawrence n. Carter (16 P.) 33 12; Claflin ■». God- frey, (21 P.) 38 1. 96. As where a bottomry bond becomes void by reason of capture. Appleton i>. Crowninshield, 8 340. 97. Or an insurance policy fails to attach. Penniman n. Tucker, 11 66; Hem- menway v. Bradford, 14 121. 98. Or a voyage, for which freight is paid, is abandoned, or broken up by perils of the sea. Griggs ». Austin, (3 P.) 20 20; Brown v. Harris, (2 G.) 68 359; Minturn v. Warren Ins, Co., (2 A.) 84 86; Chase •e. Alliance Ins. Co., (9 A.) 91 311. 99. Or goods purchased, to be sent by a car- rier, are lost by him in consequence of imper- fections in the bill of lading and direction, through the vendor's fault. Finn v. Clark, (10 A.) 92 479; Finn «. Clark, (12 A.) 94 522. 100. But a failure of consideration from a risk contemplated by the parties, does not au- thorize the recovery back of the money paid. Woodward v. Cowing, 13 216. 101. Nor does a failure of consideration, pro- ceeding from the plaintiff's own act or omis- sion. Shaw i). Carbrey, (13 A.) 95 462. 102. Or where a deed, or other instrument, was assented to by the plaintiff, when exe- cuted. Sargent «. Adams, (3 G.) 69 72; Foss v. Richardson, (15 G.) 81 303; Kennis- tona. Blakie, 121 552. 103. One who innocently pays money upon a note, void for usury, may recover it back from the person to whom it was paid. Copp i>. McDugall, 9 1. 104. A principal who pays the debt to a surety, may recover back the money, if the creditor subsequently collects the debt from him. Watkins v. Otis, (2 P.) 19 88. 105. Money delivered to one for a particular purpose, which he neglects or refuses to ac- complish, may be recovered back. Strong «. Bliss, (6 Met.) 47 393. 106. A subscription to build a seminary may be recovered back, if nothing is done within the time fixed; or, if no time is fixed, within a reasonable time. Carter v. Carter, (14 P.) 31 424. 107. But an action based upon failure of con- sideration will not lie, if the object is substan- tially accomplished. Charlton v. Lathe, (7 P.) 24 44. 108. Where A, holding B's bond for a convey- ance of land, sold part of the land to C, and re- ceived payment with B's assent, B is not liable for the sum, upon his refusal to convey for non- completion by A. Stone ii. Crocker, (19 P.) 36 292. 109. A party cannot rescind and recover back, where it is impossible to restore the parties to their original condition. Coolidgee. Brigham, (lMet.) 42 547; Croft v. Wilbar, (7 A.) 89 248. 110. Nor can he rescind for a partial failure of the consideration. Bassett u. Percival, (5 A.) 87 345; Vrancx v. Ross, 98 591; Dickinson v. Lane, 107 548. 111. But the right to recover back for fail- ure of consideration may exist, as to a portion of the sum paid, where distinct transactions were contemplated, some of which only have proved fruitless, and the loss by the latter can be exactly admeasured. Claflin v. Godfrey, (21 Pr) 38 1. 112. Where a person sues upon the instru- ment, he affirms it, and cannot recover back in the same action the money paid upon it, on the ground of a rescission for mistake or fraud. Tappan «. Warren Sav. Bk., 127 107. 113. Where money is contributed by several for a common purpose, to be expended by a committee or directory, and the object of the association is abandoned, a contributor cannot recover back his money from the treasurer, to whom it was paid for the directory. Murray v. McHugh, (9 C.) 63 158. 114. Money paid to satisfy a judgment may be recovered back by the person paying the same, although not the nominal defendant, if the judgment is afterwards reversed or vacated, but not otherwise. Stevens v. Fitch, (11 Met.) 52 248; Wilbur v. Sproat, (2 G.) 68 431. 115. The rule is not varied by the fact that the plaintiff had committed a fraud, by reason of which the judgment ought not to have been rendered, and which was not discovered till after satisfaction. Homer «. Fish, (IP.) 18 435. ASSUMPSIT, III, (2). 79 116. "Where a debtor makes a partial pay- ment upon a note to an attorney, who has it for collection, and the attorney afterwards takes judgment by default for his client for the full amount, the payment may be recovered back from the attorney. Fowler v. Shearer, 7 14. 117. But where there is no trust or confi- dence, and the debtor neglects to plead a total or partial payment, he cannot recover the same from the creditor, after judgment for the full amount. Loring ®. Mansfield, 17 394; Aldrich ®. Holden, (19 P.) 36 386; Jordan ®. Phelps, (3 C.) 57 545; Sacket v. Loomis, (4 G.) 70 148; Fuller v. Shat- tuck, (13 G.) 79 70. (These cases over- rule Kowe ®. Smith, 16 306.) 118. Money held by an officer, under an in- valid attachment, may be recovered from him in this form of action. Allen v. Wright, 134 . 247. 119. Money paid under an award cannot be recovered back, unless fraud or mistake is shown. Newburyport Ins. Co ®. Oliver, 8 402; Homes ». Aery, 12 134. 120. An officer who sells goods attached on mesne process, is liable in this form of action, although he has not received the monev. Wheelock ®. Hastings, (4 Met.) 45 504; Appleton ®. Bancroft, (10 Met.) 51 231. 121. "Where a tenant in common of a vessel, having authority to insure for his co-tenant, effects an insurance for whom it may concern, and settles with the underwriters for a total loss, the co-tenant may recover from him in this form of action his proportion, although, in fact, the defendant received nothing for the plaintiff's interest. Briggs v. Call, (5 Met.) 46 504. 122. Bnt where a merchant, not bound to in- sure goods sold, but not removed, procures a general policy of insurance covering such goods, with others which he is bound to insure, and a loss happens, and he includes such goods in his statement of loss, he is not liable to the pur- chaser, if, in fact, the surnpaid for the loss did not exceed the value oflhose which he was bound to insure. Reitenbach ®. Johnson, 129 316. 123. A town may maintain this action against its treasurer, to recover sums not accounted for. Adams ®. Farnsworth, (15 G.) 81 423. 124. But an action cannot be maintained by a town against the clerk of a court, to recover penalties received by him, which he is bound, by law, to pay to the county treasurer for the use of the town. Taunton v. Sproat, (2 G.) 68 428. 125. Nor can a town recover against a prose- cutor in a qui tarn action, who receives the en- tire penalty without entering the action, al- though half would have belonged to the town if judgment had been taken. Raynham v. Rounseville, '9 P.) 26 44; Lapham v. Almy, (13 A.) 95 301. 126. This action lies without a demand to re- cover the excess realized upon collateral secu- rity above the debt, for which the security was given. Randall v. Rich, 11 494; Hunt v. Nevers, (15 P.) 32 500; Jackson ®. Stevens, 108 94. 127. Or against the holder of a note by a second indorser, who has paid the note, for a dividend received in bankruptcy from the first indorser's estate. Selfridge ». Gill, 4 95. 128. An indorsee may maintain this action against the maker or indorser. State Bk. v. Hurd, 12 172; Cole ». Cushing, (8 P.) 25 48; Ellsworth ®. Brewer, (11 P.) 28 316; Goodwin ». Morse, (9 Met.) 50 278; Moore ®. Moore, (9 Met.) 50 417. 129. Where a note signed by two makers is surrendered, upon receiving a new note, purport- ing to be signed by them, but signed in the name of one without authority, the new note may be treated as a nullity, and the holder may recover against the person not bound in this form of action. • ' Leonard ®. Taunton Cong. Soc, (2 C.) 56 462. 130. Where money has been received by a member of an association, in behalf of the as- sociation and its members, under circumstances which requires the rights of all the members of the association, which is really a partnership, to be adjusted, a bill in equity, not an action for money had and received, is the proper remedy. Rogers ®. Daniell, (8 A.) 90 343; Smith ®. Moore, 129 222. 131. But money may be recovered at law from the plaintiff's trustee, where the transac- tion is a single one, although a suit in equity would also lie; or where the account has been settled, and the sum ascertained. Arms ®. Ashley, (4 P.) 21 71; Brown i>. Cowell, 116 461; Johnson ». John- son, 120 465. [See Trustee and Cestui que Trust, III.] 132. Where a third mortgagee sells the land under a power of sale, with the assent of the prior mortgagees, and realizes enough to pay them and him, and a fourth mortgagee, the lat- ter may recover his debt in this form of action. Cook ®. Basley, 123 396. 133. An administratrix who receives, from a debtor to the estate, securities, with directions to apply the proceeds to the discharge of the debt, is liable individually to the debtor, for any sur- plus that she receives and applies to the estate. Cronan ®. Cotting, 99 334. 134. Where two undertake the purchase of goods jointly upon speculation, and one takes all the profits, he is liable in this form of action to the other for his share. Stiles ®. Campbell, 1 1 321. 135. In such a case, a count for money had and received, and a special count setting forth the purchase and the profits, must be supported by proof that the defendant had actually re- ceived more than his disbursements on the joint account. Dorr®. McKinney, (9 A.) 91 359. 136. Rent received in advance from his ten- ant by the grantor in a deed, covering a period subsequent to the grant, cannot be recovered in this form of action, as it was his own money when it was paid. Stone v. Knight, (23 P.) 40 95. 80 ASSUMPSIT, III, (2), (3). 137. A -widow, who joins with the adminis- trator in a deed of the real property of the decedent, and signs, but does not seal the same, cannot recover from the administrator any part of the purchase price, as she has not effectually released her dower. Giles v. Moore, (4 G.) 70 600. 138. "Where an award is made by an interna- tional commission, nominally, to one, but the real interest is in another, the latter may recover from the former the money received by him. Heard 0. Bradford, 4 326; Law 0. Thorndike, (20 P.) 37 317; Lee 0. Thorn- dike, (2 Met.) 43 313; Leonard v. Nye, 125 455. 139. So where a judgment is recovered by one for the benefit of another. Peabody i>. Tarbell, (2 C.) 56 226. 140. The vendee of an undivided portion of ^nd, whose deed is defective, and is not recorded for that reason, cannot recover a portion of the purchase price of the same land, sold as sole owner by his grantor to others, if enough re- mains of the same land to give him the quantity specified in his deed. Gibbs «. Swift, (12 C.) 66 393. 141. Where one agrees to pay to another a certain proportion of a demand, to be collected from a third person, to secure which he had taken out a policy of insurance on the latter's life, he is liable for a proportionate part of the sum re- ceived upon the policy, although the plaintiff refused, upon the settlement, to pay a propor- tionate part of the premium. Cutler 0. Rand, (8 C.) 62 89. 142. Where a policy of insurance is issued upon a building to the owner, loss payable to a mortgagee, and the latter sells the land under a power of sale in the mortgage, and then cancels the policy, and procures a new policy to the pur- chaser, without rebate of premium, he is not liable to the mortgagee for a rebate of premium, to which he was entitled upon the cancelment. Parker 0. Smith Charities, 127 499. 143. Where A draws on B, upon an agree- ment to apply the proceeeds for C's benefit, in a shipment to the order of B, and, on C's fail- ure, applies them to C's debt to himself, he is liable to B, in this form of action, without a demand. Baring 0. Clark, (19 P.) 36 220. 144. One who purchases shares of stock in a corporation, for the benefit of himself and others, paying therefor himself, and then refuses to make any settlement, saying he will keep the shares himself, is liable to each of the others, in this form of action, for the plaintiff's pro- portion of the dividends received by him. Colt 0. Clapp, 127 476. 145. So an attorney, who receives the pro- ceeds of property sold on several writs; or the owner of a fishing vessel, who has sold the catch, is liable to each of the persons inter- ested, for his respective share. Wait 0. Gibbs, (4 P.) 21 298; Wait 0. Gibbs, (7 P.) 24 146; Hardy v. Peters, (19 P.) 36 370. 146. A public agent, receiving money from the government to pay a claim, is liable to the claimant in this form of action. Freeman 0. Otis, 9 272. C3.) For money paid, laid out, and ex- pended. 147. To sustain this action, it is essential that the money should have been paid for the de- fendant, and at his request, express or implied; and the declaration must aver a request. A mere voluntary payment, although for the de- fendant's use, will not support it. Roxbury 0. Worcester Turnpike, (2 P.) 19 41; Winsor 0. Savage, (9 Met.) 50 346; Middleborough 0. Taunton, (2 C.) 56 406; South Scituate 0. Hanover, {9 G.) 75 420; Sheehan 0. Carroll, 124 67; Brown 0. Fales, 139 21; Mansfield 0. Edwards, 136 15. 148. Thus, payment of a mortgage on the land of an infant, at his guardian's request, will not sustain an action against the infant, as the guardian had no authority to bind the infant. Bicknell0. Bicknell, 111 265. 149. The rule is the same, although the money is paid by a guarantor, bail, or other surety, if paid before he became liable. Bowman 0. Blodgett, (2 Met.) 43 308; Putnam 0. Tash, (12 G.) 78 121. 150. But where the payment is compulsory, as to relieve the party's property from sale under legal process, the law implies a request. Keiths Easton 1 arish, (21 P.) 38 261; Hale 0. Huse, (10 G.) 76 99; Nichols 0. Bucknam, 117 488. See, also, Glea- son Dyke, (22 P.) 39 390; Bock 0. Gallagher, 114 28. 151. This is the proper form of action to re- cover contribution, by one of two or more joint contractors or co-sureties, or others standing in a similar relation to the plaintiff. Taylor 0. Porter, 7 355 ; Homes 0. Dana, 12 190; Farmington Academy 0. Allen, 14 172; Bryant 0. Goodnow, (5 P.) 22 228; Wiggin 0. Suffolk Ins. Co., (18 P.) 35 145; Dodge 0. Wilkinson, (3 Met.) 44 292; Ives Sterling, (6 Met.) 47 310; Hall 0. Thayer, (12 Met.) 53 130; Mirick 0. French, (2 G.) 68 423; Wheeler 0. Wheeler, 111 247; Mans- field 0. Edwards, 136 15. 152. But a voluntary payment, before the lia- bility of any of them attaches, does not entitle the person paying to contribution from his asso- C13,tGS ' Andrews 0. Callender, (13 P.) 30 484. 153. In this form of action, oral evidence is admissible, to show the true relations of the parties to a written instrument, although these may be different from those expressed on tbe face of the instrument itself. Carpenter 0. King, (9 Met.) 50 511; McGee 0. Prouty, (9Met.) 50 547; Wes- ton 0. Chamberlin, (7 C.) 61 404; Clapp 0. Rice, (13 G.) 79 403; Sweet 0. Mc- Allister, (4 A.) 86 353; Mansfield 0. Edwards, 136 15. 154. A request and a promise to pay may be inferred, from the defendant's knowingly suffer- ing the plaintiff to pay, on the expectation of being reimbursed. Day«. Caton, 119 513. 155. Knowingly paying a gambling debt gives uo right of action. Scollans 0. Flynn, 120 271. ASSUMPSIT, III, (3), (4). 81 156. An agent, who has expended his own money in his principal's business, may recover against the latter, although the request was coupled with a direction for reimbursement, which the agent was unable to obey. Packard v. Lienow, 12 11. 157. The action cannot be maintained with- out actual payment, or its equivalent. Cornwall v. Gould, (4 P.) 21 444; Doolittle v. Dwight, (2 Met.) 43 561; Whiting v. Aldrich, 117 583. 153. Giving a note, which is not binding, is not such a payment as will enable the party to maintain this action. Perkins . Davis, 109 239. 165. Where one of two joint indorsers, who have been fixed, pays half of the amount of the note to the other indorser, who credits it and recovers judgment against the maker for the residue, the maker is also liable to the first named indorser for the sum so paid by him McGregorys. McGregory, 107 543. 166. An auctioneer may recover from his customer the auction duty paid to the Common- wealth; and the defendant cannot object that he was not licensed, the purchaser having taken and paid for the property. Robinson v. Green, (3 Met.) 44 159. (4.) For work, labor, and services. [See, also, post, IV; Master and Servant, I, (2).] 167. Where one undertakes to do a work for another, but does it so unskillfully and insuffl- VOL. I— 11 ciently that it is of no benefit to the latter, he can recover nothing, unless it has been accepted with knowledge. Taft v. Montague, 14 282. 168. Where a special contract has not been fully performed, but the plaintiff has, in good faith, done, what he believed to be a compliance with the contract, and his work is beneficial to the defendant, or if exact compliance has been waived, the plaintiff may recover what the work and labor are reasonably worth, not exceeding the contract price, and deducting the damages sustained by the defendant by the departure from the contract. Hayward v. Leonard, (7 P.) 24 181; Smith v. Lowell Cong. M. House, (8 P.) 25 178; Phelps v. Sheldon (13 P.) 30 50; Snow v. Ware, (13 Met.) 54 42; Bassett v. Sanborn, (9 C.) 63 58; Gleason v. Smith, (9 C.) 63 484; Veazie v. Hosmer, (11 G.) 77 396; Cardell v. Bridge, (9 A.) 91 355; Atkins e. Barnstable Co., 97 428; Powell «. Howard, 109 192; Cul- lens. Sears, 112 299; Blood®. Wilson, 141 25. [See, also. Contract, V, (1).] 169. And the measure of damages is the con- tract price, deducting the diminution of value caused by the deviations from the contract . Hayward «. Leonard, (7 P.) 24 181; Smith v. Lowell Cong. M. House, (8 P.) 25 178; Snow v. Ware, (13 Met.) 54 42; Morse v Potter, (4 G.) 70 292; Walker v. Orange, (16 G.) 82 193; Veazie v. Hosmer, 11 G.) 77 396; Car- dell is. Bridge, (9 A.) 91 355; Thomp- son v. Purcell, (10 A.) 92 426; Moulton ■o. McOwen, 103 587; Powell v. How- ard, 109 192; Cullen «. Sears, 112 299. 170. In order to determine the diminution of value, the defendant may show how much it necessarily cost him, to get the work completed according to the contract. Clark v. Russell, HO 133. 171. The rule applies to commissioners to make partition, who innocently depart from the directions of the warrant, so that their re- port is not accepted. Potter v. Hazard, (11 A.) 93 187. 173. If full and exact performance has been prevented by the act of the other party, the value of the work may be recovered, without any deduction. Bassett v. Sanborn, (9 C.) 63 58; Johnson v. Trinity Church, (11 A.) 93 123; Williams «. Bemis, 108 91. 173. This rule holds, although the contract was void by the statute of frauds. Kidder v. Hunt, (1 P.) 18 328; Wil- liams v. Bern's, 108 91. _ 174. If the work is destroyed before comple- tion, as by flood or fire, and this is shown to have happened without the plaintiff's fault, he can recover on a quantum meruit ; but if the cause is unknown, he can recover nothing. Adams *. Nichols, (19 P.) 36 279; Boyle v. Agawam Canal Co., (22 P.) 39 381; Lord v. Wheeler. (1 G.) 67 282; Cleary v. Sohier, 120 210. 175. The plaintiff's right to recover, where the work was substantially, but not exactly, completed according to the contract, is not af- 82 ASSUMPSIT, III, (4). f ected by his receipt, after the work was com- pleted, of payment of part of the contract price, and an agreement for payment of the residue, provided certain defects do not appear. Thompson ». Purcell, (10 A.) 92 426. 176. It does not extend to a case where there was no contract between the parties, as where the plaintiff is an assignee. Kemble v. Dresser, (1 Met.) 42 271. 177. Payment for work done is not, per se, conclusive evidence of a waiver of claims for defects. Moulton v. McOwen, 103 587. 178. See further, as to the effect of accept- ance, Kutts v. Pelby, (20 P.) 37 65. 179. One who voluntarily, and without good cause, leaves unfinished a work which he has contracted to do, cannot recover anything for his labor. Faxon v. Mansfield, 2 147. 180. But this rule does not apply to an in- fant, who may leave without cause, and recover upon a quantum meruit. Moses v. Stevens, (2 P.) 19 332; Vent v. Osgood, (19 P.) 36 572; Gaffney «. Hayden, 110 137. 181. An infant, authorized by his father to have his own earnings, may recover upon a quantum meruit, although his employer made no express contract with any one. Corey v. Corey, (19 P.) 36 29. 182. The employer of the plaintiff's infant child, without any express contract for wages, may deduct, from the value of his services, the reasonable value of his board. Adams v. "Woonsocket Co., (11 Met.) 52 327. 183. If the contract is to work for a certain time, and the party leaves before the expiration thereof, he cannot recover anything. Stark v. Parker, (2 P.) 19 267; Olm- stead i>. Beale, (19 P.) 36 528; Davis v. Maxwell, (12 Met.) 53 286. 184. But inability to continue, caused by sickness, will entitle him to recover on a quan- tum meruit. Fuller a. Brown, (11 Met.) 52 440. 185. And if the contract is oral and void by the statute of frauds, as where the time exceeds a year, he can leave at any time without cause, and recover on a quantum meruit. King ». Welcome, (5 G.) 71 41. [For rulings in cases where a servant or workman is required to give notice before leaving, see Master and Servant, I, (2).] 186. It is essential to any recovery in this form of action, that the work should have been done upon the express or implied request of the defendant; and, where a contract for work has been terminated, a new engagement must be shown. Currier v. Phillips, (12 P.) 29 223; Hyland «. Giddings, (11 G.) 77 232; Cook v. Doggett, (2 A.) 84 439. 187. It is essential, also, that the credit should have been given to the defendant, or that the original debtor's liability should be extinguished. Tripp v. Hathaway, (15 P.) 32 47; Anderson v. Fuller, (18 P.) 35 572; Stone v. Crocker, (19 P.) 36 292; Hogan v. Coleman, 1 19 96; Meserve v. Bacon. 125 499. 188. A sheriff,' who summons a jury, upon a warrant to reduce damages assessed by com- missioners upon laying out a town way, may recover his fees from the selectmen, who applied for the warrant without authority from the town. Baker v. Thayer, (3 Met.) 44 312. 189. An officer may recover from the judg- ment creditor his fees upon an execution, on which he has committed the judgment debtor, who is discharged as a poor debtor. Boswell v. Dingley, 4 411. 190. "Where the plaintiff took the risk of a a festival being profitable, and it resulted in a loss, he cannot recover against the managers, who employed him on those terms. Zerrahn v. Ditson, 117 553. 191. "Where the contract contemplates com- pensation, otherwise than in money, and the other party is not in fault, the party rendering the services cannot recover in this form of ac- tion. Meserve v. Bacon, 125 499. 192. Where services were rendered upon the defendant's express request, the compensation therefor is to be determined by the value thereof, not the benefit received therefor by the de- fendant. Stowe ». Buttrick, 125 449. 193. Upon a contract between A, B, and C, whereby C is to convey land to B, to be paid for partly in money and partly by A's labor, the law implies a promise by B to pay A the reason- able value of his labor. Blaisdell ». Gladwin, (4 C.) 58 373. 194. Where one agrees to work for another at stipulated wages, upon a contract to build a road, and the latter assigns the contract to a third person, who prosecutes the work, the former is entitled to a reasonable compensation for his continued labor, irrespective of the stip- ulated wages. Connor v. Hackley, (2 Met.) 43 613. 195. Where an entire contract is made for labor on different articles, to be paid for when finished, an action will not lie till all are fin- ished. Robinson v. Hall, (3 Met.) 44 301. 196. Where a contract provides that the em- ployer may keep back the workman's wages, till the work is done to his satisfaction, if he wrongfully discharges the workman without any breach by him, the employer cannot keep back the wages, under the pretence that the work was not done to his satisfaction. Sloan v. Hayden, HO 141. 197. In an action by an uncle to recover from his niece for board and lodging furnished to her and her infant ward, and articles fur- nished to her in the family, it is for the jury to say whether, considering the relationship be- tween the parties, and other attending circum- stances, there^ was an understanding that the plaintiff should be compensated; and evidence of services rendered by her, in the expectation that they would compensate for the board and lodging, is admissible. Spring v. Hulett, 104 591. 198. If one agrees to work for another for a certain sum per month, and board, the latter ASSUMPSIT, III, (5), (6); IV. 83 cannot charge him for board during a brief ill- Nichols ». Coolahan, (t> Met.) 51 449. (5.) For goods bargained and sold, and goods sold and delivered. [See, also. Damages, III, (2); Sale, IV, (1);, Stat- ute Off Frauds, III. A 9 to the right to waive the tortious taking or delivering of goods, and to ormg assumpsit for the proceeds, see ante, I, (3).] 199. To maintain an action for goods sold and delivered, it is essential to aver and prove an actual or constructive delivery of the goods to the defendant, or one authorized by him to receive them, at the defendant's request. Hart ». Tyler, (15 P.) 32 171; Hull®. Richardson, (4 G.) 70 598; Boston Duck Co. v. Dewey, (6 G.) 72 446; Stearns «. Washburn, "(7 G.) 73 187; Richardson v. Crooker, (7 G.) 73 190. 200. "Where milk was delivered to the defend- ant's wife, who was living apart from him, without means of support, by reason of his cruelty, this is sufficient proof of request and delivery. Benjamin v. Dockham, 134 418. 201. Where the defendant purchased at auc- tion a chattel, and the plaintiff kept it, ready for delivery, at a place convenient for and known to the defendant, but the defendant neglected to comply with the terms of sale, an action will lie for goods bargained and sold, but not for goods sold and delivered. Turner v. Langdon, 112 265. Accord, upon a similar state of facts, Middlesex Co. ®. Osgood, (4 G.) 70 447; Morse «. Sherman, 106 430. 202. It is a defence to either of these actions, that the goods were sold under a special con- tract, which the defendant has performed, or is ready to perform; but if the plaintiff has fully performed it, and the only thing remain- ing to be done under it is payment of the money, the action lies. Wilby ®. Harris, 13 496; Goodrich v. Lafflin, (1 P.) 18 57; Knight ®. N. E. Worsted Co., (2 C.) 56 271; Smith v. Colby, 136 562. 203. But where goods are sold under an en- tire contract, and the vendor refuses to deliver the whole, but the vendee accepts and retains part, after such refusal, an action for goods sold and delivered lies. Bowker v. Hoyt, (18 P.) 35 555. 204. Where the purchaser has agreed to give a note for the goods, or to apply the price upon a debt due him from the vendor, and, after de- livery, refuses so to do, assumpsit for goods sold and delivered lies immediately. Loring ». Gurney, (5 P.) 22 15; Berms v. Charles, (1 Met.) 42 440. 205. But where the note is to be given, or the act is to be done, after the expiration of a certain time, an action will not lie until the expiration of that time, and then the declaration must be special. Hunneman v. Grafton, (10' Met.) 51 454. [See, also, ante, I, (3); II.] 206. Nor will an action for goods sold and delivered lie, where goods were consigned to the defendant for sale, and he neglected to account for the proceeds after demand. Ayres a. Sleeper, (7 Met.) 48 45. 207. Where one tortiously sells another's property, and takes in payment a note running to himself, an action for goods sold and deliv- ered will not lie against the purchaser in favor of the true owner. If he waives the tort, he must abide by the contract. Brigham i>. Palmer, (3 A.) 85 450. 208. A consignor may sue in his own name for goods sold and delivered by a factor. Barry ®. Page, (10 G.) 76 398; Wads- worth v. Gay, 118 44. [See, also, Agency, IV, (1) ; V, (1).] 209. But the action will not lie, where the plaintiff delivered a third person's goods to the defendant, upon the latter's promise to pay for them, or return them to the owner. Brown v. Holbrook, (4 G.) 70 102. 210. Alitor, where the promise is to return them to the plaintiff, or account for them on demand, and a demand has been made. Bolles «. Stearns, (11 C.) 65 320. 211. Where the defendant agreed with S to take goods from him, to be manufactured by the plaintiff, and the goods were sent by the plaintiff to the defendant, who credited them to S, and settled therefor with him, with the knowledge of the plaintiff, and without objec- tion by him, an action for goods sold and deliv- ered will not lie. • Farwell v. Smith, (12 P.) 29 83. <6.) Upon an account stated, or an ac- count annexed. [See Account.1 IV. Practice; Pleadings; Evidence. [See, also, each of those titles.] 212. In an action for goods sold and delivered, the plaintiff is entitled to recover the agreed price, or the fair value; and if the defendant has any claim for services rendered, or expenses in- curred on account of the goods, his remedy is not by reducing the damages, but by a declara- tion in set off. Wadsworth v. Gay, 118 44. 213. A declaration, setting forth a written con- tract between the parties, and averring that it was executed by the plaintiff through the de- fendant's fraud, and that he is entitled to re- cover the reasonable value of his labor, or that the defendant broke it, and prevented perfor- mance by the plaintiff; and then containing the substance of a declaration upon an account an- nexed for work and labor, is sufficient as a dec- laration for work and labor. Simmons «. Lawrence Duck Co., 133 298. See, also, Pord ». Burchard, 130 424. 214. And if the declaration contains another count for damages for breach of the contract, it is bad, as containing two inconsistent causes of action. Simmons ®. Lawrence Duck Co., 133 298. 215. But a declaration containing a count for money had and received, to recover back money paid under an agreement, which the defendant has failed to perform, is good, although another 84 ASSUMPSIT,. IV. count relies upon the special agreement, but does not state that the defendant's promise was to be performed before the date of the writ. Hotchkiss v. Judd, (12 A.) 94 447. See, also Keyes v. Stone, 5 391. 216. A declaration claiming a certain sum for certain services, will enable the plaintiff to re- cover upon a quantum meruit, although his counsel opened upon a special contract to pay for them, and evidence of such a contract has been given. Harrington v. Baker, (15 6.) 81 538. 217. And the plaintiff, without being first compelled to elect, may offer evidence of an express agreement, and show that the services were rendered under such circumstances as to imply a promise to pay for them. Stowe v. Buttrick, 125 449. 218. Where the declaration is upon an ac- count annexed for work and materials, and the defendant contends that there was a special con- tract for a gross sum, and the judge' rules that if the jury find a special contract, the plaintiff cannot recover under the declaration; evidence of the breach of the special contract, and of the value of the work, if the contract had been com- pleted, is irrelevant. Lowe «. Pimental, 115 44. 219. Where the declaration is indebitatus as- sumpsit, and the proof shows a sale upon credit, which had not expired at the date of the writ, there is a fatal variance. Wilder v. Colby, 134 377. 220. It is not essential that the declaration in assumpsit should contain the word "promise"; any word of like import, such as "agree," suffices. Avery v. Tyringham, 3 100. 221. But a consideration must always be al- leged, except on a bill or note. Hemmenway v. Hickes, (4 P.) 21 497. 222. The practice act has made no change in the rule, that the declaration must allege all the circumstances necessary for the support of the action. Hollis v. Richardson, (13 G.) 79 392; Bead v. Smith, (1 A.) 83 519. 223. Where a request is necessary, it must be averred, or the declaration will be bad on de- murrer. Read v. Smith, (1 A.) 83 519. 224. But where the promise is either to do a certain act, or pay a certain sum of money, a special request for the money need not be averred; and an averment of notice is unneces- sary where the matter is within both parties' knowledge. Lent v. Padelford, lO 230. 225. In an action upon a contract containing a condition, the declaration must state the con- dition, and show that the plaintiff has been damnified. Whitaker v. Smith, (4 P.) 21 83. 226. A declaration on a promissory note, payable to A or bearer, which alleges that the plaintiff is the bearer, is good, without averring a promise to pay the plaintiff. Dole D. Weeks, 4 451; Gilbert v. Nantucket Bk., 5 97. 227. A declaration alleging an indebtedness in bank bills "of the value of," etc., is bad. Barnard v. Whiting, 7 358. 228. In declaring upon a contract, the con- tract may be set forth according to its legal effect and impoft. Lent v. Padelford, 10 230; Hopkins «. Young, 11 302. 229. A declaration alleging a promise after the date of the writ, and a breach before, is bad on special demurrer, but good after ver- dict. Bemis ■». Faxon, 4 263. 230. In a declaration upon an implied prom- ise to discharge a statutory obligation, all the facts constituting the obligation. must be al- leged. Bath «. Freeport, 5 325. 231. An allegation of time, in a declaration for money lent, is surplusage. Baxter a.Paine, (16 G.) 82 273. 232. One averment of demand and refusal suffices for two or more counts. Rider v. Robbins, 13 284. 233. An averment of indebtedness, "accord- ing to the account annexed," suffices. Rider v. Robbins, 13' 284. 234. All the money counts may be inserted in one declaration. Whitwell v. Brigham, (19 P.) 36 117. 235. Where assumpsit is brought upon waiver of a tort, all the injured parties must be joined as plaintiffs, and all the tort feasors must be joined as defendants. Gilmore v. Wilbur, (12 P.) 29 120. 236. If two or more co-promisors pay jointly a debt, they must join in an action for contribu- tion against the other co-promisors. Chandler «. Brainard, (14 P.) 31 285; Doolittle v. Dwight, (2 Met.) 43 561. 237. A general allegation of damages suffices in an action to recover back money obtained from an infant. Kellogg v. Kimball, 122 163. 238. Defendants, in assumpsit, cannot sever in their pleas, except that where one is, de- faulted, the other may plead alone; and where one is out of the State, the other may plead that he and the former did not promise, etc. Tappau v. Bruen, 5 193; Meagher v. Bachelder, 6 444; Ward v. Johnson, 13 148; Shed v. Pierce, 17 623. 239. A defence of accord and satisfaction cannot be proved, under an answer containing a general denial, and an allegation of payment. Grinnell v. Spink, 128 25. 240. As to the sufficiency, under the practice act, of a declaration or answer, based upon an insimul computassent, see Chace v. Trafford, 116 529; Rand ®. Wright, 129 50. "" 241. In assumpsit for money had and re- ceived, money fraudulently taken from the plaintiff by the defendant may be recovered, although not thus designated in the bill of par- ticulars, if no objection on that ground is taken until all the evidence, relating thereto, is in. Boston & W. R. R. Co. ». Dana, (1 G.) 67 83. 242. In an action against a savings bank to recover a deposit, the deposit book is evidence, at least, to show the amount received, although it contains printed conditions of deposit and payment. Brown ■». Abington Sav. Bk., 119 69. ATTACHMENT, I, (1), (2). 85 243. In an action by a town against its treas- urer to recover sums not inqjpled in Ms ac- count, the defendant may show other errors in the account, to balance the sums claimed, with- out pleading them, either in his answer or as a Adams v. Farnsworth, (15 G.) 81 423. 244. "Where, in an action for goods sold and delivered, the answer, without denying the sale and delivery, sets up a contract by the vendor that the articles should be of a certain quality, and avers that they were inferior, the burden of proof is on the defendant to prove the con- tract and the breach, and evidence to show a rescission of the purchase is incompetent. Lothrop v. Otis, (7 A.) 89 435. Asylum for insane. [See Charity, VI; Poor, II, (5).] Atheist. [See Witness, II, (1).] Attachment. I. How an Attachment is made. (1.) The writ and the action. (2.) Attachable real property. (3.) How real property is attached. (4.) Attachable personal property. (5.) How personal property is attached. (6.) Fraudulent attachments. II. Rights, Duties, and Liabilities after the Attachment. (1.) Officer. (2.) Debtor. (3.) Receiptor. III. Rights and Liabilities under simul- taneous or successive Attachments. IV. Dissolution. (1.) By bond. (2.) In other modes. [Sec, also, Execution, II, III: Office and Offi- cer, II; Trustee Process, I, III, IV. As to pre- cedence between an attachment and a conveyance of real or personal property, see Assignment, III, V; Chattel Mortgage, H, III; Deed, I, II; Fraud, III, V; Mortgage, 1, (1); I, (3); Sale, I, II.] 2 An attachment is void where the writ was filled up or altered by the officer. Smith v. Saxton, (6 P.) 23 48d; Clarke v. Lyman, (10 P.) 27 45. 3 But the attachment is not void if the attor- ney without objection by the clerk, alters the date and return day of the writ, before the at- tachment is levied; and this is so, although a prior attachment had been made under the de- fective writ. Gardner «. Webber, (16 P.) 33 251; Parkman «. Crosby, (16 P.) 33 297; Giles. Devens, (11C.) 65 59. [See, also, Amendment, II, VI.] 4. Where an order of the court allows a new writ of summons to a new defendant, the plain- tiff may take out a writ of summons and attach- ment, which may be levied upon the new defendant's goods. Whitcher v. Josslyn, (6 A.) 88 350. 5. A mistake in the date of the writ does not invalidate an attachment seasonably made. Parkman ». Crosby, (16 P.) 33 297. 6. An attachment is not invalidated, because the plain. iff has collateral security for the debt, although it consists of a mortgage on the at- tached property. Beckwith «. Sibley, (11 P.) 28 482 Whitwell s. Brigham, (19 P.) 36 117 Buck v. Ingersoll, (11 Met.) 52 226 Taylor v. Cheever, (6 G.) 72 146. [These cases overrule, on this point, Cleverly v Brackett, 8 150.] 7. An attachment after the defendant's arrest, under the same writ, is invalid; but a subse- quent arrest, before service of the summons, without directions from the plaintiff, will not invalidate it. Brinley v. Allen, 3 561; Almy v. Wolcott, 13 73. 8. If the action is commenced without the plaintiff's authority, his subsequent ratification validates the attachment, if the demand was a legal debt at the time of the attachment; and this is so, even against another creditor, attach- ing before the ratification. Baird •». Williams, (19 P.) 36 381; Randall v. Williams, (19 P.) 36 381; Bayley v. Bryant, (24 P.) 41 198. 9. An attachment is inyalid, where the action is commenced before the cause of action ac- crued, although it had accrued before the atr tachment. Swift ». Crocker, (21 P.) 38 241. 10. Where it is necessary to determine the exact time when an attachment was made, the hour, if not stated in the return, may be proved by other evidence. Garity v. Gigie, 130 184. I. How an Attachment is made. (1.) Xlie writ and the action. 1. Before the statute, G. S., Ch. 129, § 7; St. 1862, Ch. 20, § 1; P. S., Ch. 167, § 7, an attachment was void, if the writ did not con- tain a declaration; but the money counts suf- ficed. Brigham i>, Este, 12 P.) 19 420; Rath- bone v. Rathbone, (5 P.) 22 221; Whit- well v. Brigham, (19 P.) 36 117. (2.) Attachable real property. [See, also, Execution, III, (1); IV, (1).] 11. Land, purchased by either quit claim or warranty deed, from a fraudulent grantee, is not attachable by the creditors of the latter, in the absence of evidence of mala fides or want of consideration. Oriental Bk. r. Haskins, (3 Met.) 44 332; Hubbells. Currier, (10 A.) 92 333; Clark «. Chamberlain, (13 A.) 95 257; 86 ATTACHMENT, I, (2). Snow «. Paine, 114 520; Mansfield v. Dyer, 131 200. ISee, also. Fraud, III.] 12. And at common law, a debtor had no at- tachable interest in land paid for by him, and conveyed to another in order to secure it from creditors. Storer v. Batson, 8 431; Howe v. Bis- hop, (3 Met.) 44 26; Hamilton v. Cone, 99 478. 13. The estate of a mortgagee before entry to foreclose, or a release from the mortgagor, is not attachable now, although formerly the rule was otherwise. Portland Bk. v. Hall. 13 207; Blan- chard v. Colburn, 16 345; Eaton v. Whiting, (3 P.) 20 484; Marsh n. Aus- tin, (1 A.) 83 235. 14. Where all the real estate of A in a certain county was attached in 1873, and the records showed that he owned only a third mortgage on certain land; but that mortgage, and also a sec- ond mortgage assigned to him, had been as- signed by him to B, but the assignments were not recorded until 1881; and he also owned the equity of redemption by a conveyance recorded in 1881, before the assignments were recorded; it was held that B could maintain a writ of entry, against the purchaser at the execution sale. Cowley v. McLaughlin, 141 181. 15. As to the debtor's right to redeem, after sale of the equity of redemption under an ex- 6C\ition sec Clark®. Austin, (2 P.) 19 528; Heed ■v. Bigelow, (5 P.) 22 281. 16. Neither a mortgagee nor his assignee can attach the mortgagor's equity of redemption, in an action on the mortgage debt; but the in- dorsee of a mortgage note, not having an assign- ment of the mortgage, may do so in a suit upon the note. Atkins v. Sawyer, (IP.) 18 351; Crane v. March, (4 P.) 21 131; Wash- burn v. Goodwin, (17 P.) 34 137; An- drews v. Piske, 101 422. 17. And a mortgagee may attach the equity of redemption from his mortgage, in an action upon another debt. Cushing ii. Hurd, (4 P.) 21 253. 18. The mortgagee may also, in an action upon the mortgage debt, attach the mortgagor's equity of redemption, in the same land, from a junior mortgage. Johnson?). Stevens, (7 C.) 61 431. 19. The right to redeem land from a tax sale, is not attachable. Adams v. Mills, 126 278. 20. A leasehold interest is attachable. Sheltona. Codman, (3 C.) 57 318. 21 . Land conveyed by an infant is not attach- able, after he becomes of age, until he has elected whether to avoid or confirm the con- veyance. Kendall v. Lawrence, (22 P.) 39 540. 22. Land, of which the debtor is only instan- taneously seized, is not attachable. Ckiekeringfl. Lovejoy, 13 51; Haynes 11. Jones, (5 Met.) 46 292; Webster v. Campbell, (1 A.) 83 313; Hazleton i>. Lesure, (9 A.) 91 24 23. But if the deed, by which the debtor di- vests himself of the title, is not recorded, an attaching creditor, without notice, will hold the land. Woodward v. Sartwell, 129 210. 24. As to what is regarded, in law, as only an instantaneous seisin, see the cases above cited, and Holbrook v. Finney, 4 566; Clark v. Munroe, 14 351; Thaxter ii. Williams, (14 P.) 31 49; Lanfair v. Lanfair, (18 P.) 35 299; Pendleton v. Pomeroy, (4 A.) 86 510; King v. Stetson, (11 A.) 93 407; Smith ii. McCarty, 119 519. [As to the exemption of a homestead, see Home- stead.] 25. A deed of the equity of redemption, given by an officer to the purchaser at an execution sale, passes no title, as against a subsequent at- taching creditor without notice, unless recorded within three months. De Witt ii. Harvey, (4 G.) 70 486. 26. An attachment takes precedence of a prior unrecorded deed; although the creditor knew that the debtor was about to convey the prop- erty. Cushing v. Hurd, (4 P.) 21 253. 27. So where a deed is acknowledged before the register, and handed to him to be recorded, but the land is attached before the register has made his certificate of acknowledgment, the at- tachment holds. Sigourney v. Larned, (10 P.) 27 72. 28. The register's certificate, upon the con- veyance, is conclusive as to the time when it was received to be recorded, as against a subse- quent attaching creditor. Tracy v. Jenks, (15 P.) 32 465. 29. The creditor of a second grantee is not affected by his knowledge of a prior unrecorded deed; and his attachment will hold against the prior grantee, if he has no notice of the latter's deed when the land is attached, though he has notice before the execution is levied. Coffin v. Ray, (1 Met.) 42 212. 30. An attachment of real property is in the nature of a purchase; and the attaching credi- tor is affected with notice of a prior convey- ance, in like manner as a purchaser. Priest v. Rice, (1 P.) 18 164; Coffin v. Ray, (1 Met.) 42 212. 31. And where a grantee has been in posses- sion for three years, with the knowledge of a creditor of the grantor, the latter's attachment will not hold the land. Davis ii. Blunt, 6 487. 32. It is for the jury to determine, whether an absolute deed from the mortgagor to the mortgagee, with covenants against all incum- brances, except the mortgage, which has been recorded, is notice to an attaching creditor of the mortgagee that the mortgage has been as- signed. , Clark ii. Jenkins, (5 P.) 22 280. 33. Proof of facts, sufficient to put a person upon inquiry, is not sufficient notice to an at- taching creditor of a prior unrecorded deed. Parker v. Osgood, (3 A.) 85 487; Sib- ley v. Leffingwell, (8 A.) 90 584; Rich- ardson v. Smith, (11 A.) 93 134. [See further, as to notice of an unrecorded deed, and the effect thereof, as respects a suDsequent grantee, Deed, II, (3).] ATTACHMENT, I, (3), (4). 87 34. Where land, conveyed to a single woman, is, after her marriage, attached in an action against her by her maiden name, the creditor being ignorant of her marriage; and after the attachment, but before judgment, she mort- gages the land by her married name, adding her maiden name, to one who has no notice of the attachment; the attachment takes prece- dence of the mortgage, although a conveyance of other land in the same county was, before the attachment, made by her in her married name, that conveyance not being notice to the attaching creditor. Cleaveland s. Boston F. C Sav. Bk., 129 27. 35. A pew is attachable as real property. Perrin s. Leverett, 13 128. (3.) How real property is attached. 36. A general attachment of all the right, title, and interest of the defendant in any real property, upon a particular street in a city, or in a particular town or county, suffices; but not as against a creditor making a subsequent special attachment, who alone can object. Whitaker s. Sumner, (9 P.) 26 308; Taylors. Mixter, (11 P.) 28 341; Pratt s. Wheeler, (6 G.) 72 520; Owen v. Neveau, 128 427; "Woodward v. Sart- well, 129 210. 37. And it is not necessary that the officer should see or enter upon real property attached. Perrin v. Leverett, 13 ' 128; Taylor v. Mixter, (11 P.) 28 341. 38. The return of the writ, etc., within three days, and the entry of the clerk in the proper book, are necessary only for the purpose of the securing the lien against purchasers, or at- taching creditors; as against others, the at- tachment holds without doing so. Coffins. Ray, (1 Met.) "42 212; Cheshire s. Briggs, (2 Met.) 43 486; Pomroy v. Stevens, (11 Met.) 52 244. 39. Sundays, and fractions of a day, are ex- cluded in computing the days. Hannum v. Tourtellott, (10 A.) 92 494. 40. The attachment is not defeated by the clerk's failure to make the proper entries. Sykes s. Keating, 1 18 517. (4.) Attachable personal property. 41. Such chattels only are attachable as may be taken under an execution. Pierce s. Jackson, 6 241; Badlam v. Tucker, (1 P.) 18 389. 42. The statutory exemption may be waived, and then the attachment is valid; but it is not conclusively waived by silently suffering the goods to be removed. Hewes v. Parkman, (20 P.) 37 90' Copp s. Williams, 135 401. 43. And where exempt articles of household furniture are intermingled, in the debtor's house, with those not exempt, the officer cannot attach all, although the owner fails to claim an ex- emption as to any. Copp v. Williams, 135 401. [See, also. Confusion and Accession of Chat- tels. And for additional cases, relating to prop- erty exempt by statute from attachment or levy under an execution, see Execution, II, (1).] 44. The annual products of the soil, such as grain, if harvested, may be attached; or if ready for harvesting, may be harvested, and then attached. Penhallow s. Dwight, 7 34; Heard s. Fairbanks, (5 Met.) 46 111; Mulligans. Newton, (16 G.) 82 211. 45. But chattels of any kind, which are undergoing any process to tit them for use, and which will be materially damaged if it is inter- rupted, cannot be attached at common law; but they may be, if the process can be continned after removal, without material injury. Bond s. Ward, 7 123; Campbell s. Johnson, 1 1 184. See, however, Ches- hire Nat. Bk. s. Jewett, 119 Ml, post, art. 97. 46. See, also, a peculiar case, relating to beer delivered by a brewer to a retailer, Meldrums. Snow, (9 P.) 26 '441. 47. A boat, cable, and anchor are attachable, where the vessel, to which they belong, lies at a wharf. Briggs s. Strange, 17 405. 48. A stage coach is attachable before it leaves its starting place, or after it arrives at its des- tination. Potter s. Hall, (3 P.) 20 368. 49. Under P. S., Ch. 161, '§§ 38, 39, railroad cars are attachable personal property, and they may be attached as prescribed in P. S., Ch. 161, §69. Hall s. Carney, 140 131. 50. A watch in the officer's hands, but at- tached to the debtor's person by a silk guard, or placed in the hands of the officer by one arrested for larceny of other property, is not attachable. Macks. Parks, (8 G.) 74 517; Morris s. Penniman, (14 G.) 80 220. 51. Abuilding, erected by one upon another's land, with the latter's permission, may be at- tached as the former's personal property. Ashmun e. Williams, '8 P.) 25 402. 52. Specie is< attachable, but not as specie, where it is in hands of one who has received it to pay over to the debtor, for he does not then own the specific specie. Sheldon s. Root, (16 P.) 33 567; Thompson s. Brown, (17 P.) 34 462; Maxwell s. McGee, (12 C.) 66 137. 53. Nor can money or its equivalent, in an officer's hands, be attached. Thompson e. Brown, (17 P.) 34 462. 54. As to negotiable notes, see Maine Ins. Co. v. Weeks, 7 438; Perry s. Coates, 9 537. 55. The interest of a gratuitous bailee is not attachable, but that of a bailee for hire is. Walcot s. Pomeroy, (2 P.) 19 121; Wheeler s. Train, (3 P.) 20 255. 56. The lien of a mechanic for his labor upon goods, wholly or partly furnished by his cus- customer, is not attachable. 57. Nor is a factor's lien. Holly s. Huggeford, (8 P.) 25 73; Kittredge i>. Sumner, (11 P.) 28 50. 58. Where chattels are to be purchased or manufactured, or crops are to be raised, or the like, by one party, under an executory agree- ment, by which the other party is to have the property, either absolutely or as security, the question whether either has an attachable inter- ATTACHMENT, I, (4). est depends, if no question arises as to fraud upon creditors, upon his right to the possession at the time when the attachment was made. Butterfield v Baker, (5 P.) 22 522; Chandler v. Thurston, (10 P.) 27 205; Lewis v. Lyman, (22 P.) 39 437; Mun- sell v. Carew, (2 C.) 56 50. 59. Where a consignor, after shipping a part of the goods ordered, but before delivery or re- moval of some of them, receives a countermand of the order to ship, and acts upon it, the goods already shipped, and which had not reached the consignee, cannot be attached upon a writ against the latter. Scholfield v. Bell, 14 40. 60. A consignee who, becoming insolvent, assigns goods, consigned to him on his own ac- count and risk, to a third person, to sell for the benefit of the consignor, without the latter's knowledge, does not divest himself of an attach- able interest. Lane v. Jackson, 5 157. 61. One who carries on business in the name and on account of another, for half the profits, has no attachable interest in the goods. Blanchard®. Coolidge, (22 P.) 39 151. 62. Goods in the custom house subject to a lien for duties, are not attachable by creditors of the importer. Dennie v. Harris (9 P.) 26 364. 63. A debtor's private papers and account books are not attachable. Oystead v. Shed, 12 506. 64. Under the actof 1844, Ch. 148; G. S., Ch. 1'23, § 67; P. S., Ch. 161, § 79, process cannot be served by separate summons on the mortgagee, where mortgaged personal property is attached in an action against the mortgagor. Such an at- tachment is invalid, if the mortgagee, sum- moned as trustee, is a resident of another state, and has no place of business in the Common- wealth. Kent v. Lee, (9 G.) 75 45; Allen v. Wright, 134 347; Allen v. Wright, 136 193. 65. And in such a case it is immaterial that another person, also named in the writ as trus- tee, is a resident of the Commonwealth. Allen v. Wright, 136 193. 66. The statute applies only to an attachment of goods in possession of the mortgagor; if the property is in possession of the mortgagee, a trustee process in the common form must be taken out. Hooton v. Gamage, (11 A.) 93 354; Boynton v. Warren, 99 172; Porter i>. Warren, 119 535. 67. It applies to a mortgage to secure against future and contingent liabilities. Codman v. Freeman, (3 C.) 57 306; Bieknell v. Cleverly, 125 164. [For additional rulings under this statute, see Chattel Mortgage, IIJ, (2). For rulings as to an attachment of mortgaged property, before the act of 1844, see Badlam v. Tucker. (1 P.) 1 8 389; Forbes v. Parker, (16 P.) 33 402; Canada v. Southwiok, (16 P.) 33 556.] 68. The certificate of the town clerk, on the back of a chattel mortgage, that it has been re- corded, is conclusive against the attaching cred- itor. Jordan is. Farnsworth, (15 G.) 8 1 517. 69. A mortgagee's interest in personal prop- erty in his possession, after breach of condition and before foreclosure, is not attachable. Prout®. Root, 116 410. 70. A chattel mortgage, given to secure the mortgagee against liability as indorser for the mortgagor, is valid against the latter's attaching creditor, although the liability has not become fixed. Rogers e. Abbott, 128 102. 71. As to the sum "justly due " in such a case, Rogers v. Abbott, 128 10?. 72. A mortgagee of personal property may waive his rights under the mortgage, and attach the property for the mortgage debt. Buck v. Ingersoll, (11 Met.) 52 226. 73. And if he attaches the property for another debt, he may rely upon his mortgage in defence of an action by a second mortgagee. Wing v. Bishop, (9 G.) 75 223. 74. Goods attached, but receipted for and de- livered to the debtor, may be attached by another creditor. Denny v. Willard, (11 P.) 28 519; Robinson v. Mansfield, (13 P.; 30 139. 75. So goods attached by an officer upon one writ, may be attached upon a second writ, sub- ject to the first attachment. Watson v. Todd, 5 271 ; Vinton s. Bradford, 13 114; Wheeler v. Bacon, (4 G.) 70 550 ; Wheeler v. Raymond, 130 247. 76. And goods in the possession of one sum- moned as trustee, may be attached, subject to the lien of the creditor in the trustee process, by another creditor. Burlingame v. Bell, 16 318; Piatt v. Brown, (16 P.) 33 553; Rockwood v. Varnum, (17 P.) 34 289. 77. Shares in a corporation may be attached under the statute, although the charter forbids the transfer of shares for a certain time. Nesmith ». Washington Bk., (6 P.) 23 328. 78. The statute relating to the attachment, or sale under an execution, of shares of stock, does not define what shall be an attachable interest in stock, but leaves that to be determined by the common law, or some other statute. Boston M. Hall «. Cory, 129 435; Sibley v. Quinsigamond Nat. Bk., 133 515. 79. And shares issued to B for the benefit of A, and which had been assigned to A, but not transferred on the books of the corporation, cannot be attached by B's creditor. Sibley v. Quinsigamond Nat. Bk., 133 515. 80. Where a stockholder in a manufacturing corporation delivered the certificate, with a blank assignment thereof, to A as collateral security for a debt, and before the assignment ' was filled out, or notice thereof given to the corporation, the stock was attached by a creditor of the assignor, who had no notice of the assign- ment, it was held that the attaching creditor was entitled to hold the stock against A, al- though the certificate recited that the stock was transferable only on the books of the company, upon surrender of the certificate. Central Nat. Bk. v. Williston, 138 244. See, also, Fisher v. Essex Bk., (5 G.) ATTACHMENT, I, (5). 89 71 373; Boyd «. Roekport S. C. Mills, (7G.) 73 406; Blanchardfl. DcdhainG. L. Co., (12 G.) 78 213; Johnson v. Somerville, etc., Co., (15 G.) . 81 216; Rock v. Nichols, (3 A.) 85 342. 81. A debt to A and B, partners, cannot be attached in an action against A, but if so at- tached, and the writ is amended by adding B as defendant, the attachment becomes valid be- tween the parties. Sullivan v. Langley, 128 235. (5.) How personal property Is attached. 82. Where an officer went to a carrier, in whose possession the goods were, and demanded them, and on the carrier refusing to deliver him the goods, until the freight was paid, went away, and returned that he had attached the goods, this is evidence of an attachment, in an action against him by a third person, who owned the goods. Stearns v. Dean, 129 139. 83. In order to make a valid attachment of goods, the officer must take the goods into his own possession. But actual removal is not essen- tial; placing a keeper in the building where they are, or taking the key to another to keep for him, suilices. Lane v. Jackson, 5 157; Trains. "Wel- lington, 12 495; Denny®. Warren, 16 420, Gordon d. Jenney, 16 465; Heard v. Fairbanks, (5 Met.) 46 111 ; Shephard v. Butterfleld, (4 C.) 58 425. [As to bulky articles, see post, arts. 95 to 99; 121. As to the officer's duty to retain possession; see II, <1), post.-] 84. If the goods are already in the officer's actual custody, it suffices to minute and return an attachment by him, under a second writ, without other overt act; but if they have been delivered to a receiptor, and by him to the debtor, they must be seized again. Knap v. Sprague, 9 258; Turner v. Austin, 16 181; Gile ». Devens, (11 C.) 65 59; Wiggin v. Atkins, 136 292. 85. So if the .person holding them has been summoned as trustee. Burlingame v. Bell, 16 318; Piatt v. Brown, (16 P.) 33 553. 86. If in the hands of a keeper for one offi- cer, an agreement by the keeper to act also as keeper for the second officer, is not a valid at- tachment by the latter. Robinson v. Ensign, (6 G.) 72 300. 87. An appointment of a keeper for attached property is lawful, and the keeper may recover for his services against the officer, although the latter has no remedy against the creditor for the expense. Cutter v. Howe, 122 541; Stowe v. Buttrick, 125 449. 88. But the officer has no right to leave at- tached goods in the charge of a keeper, upon the premises of the defendant, or any other per- son, against his consent, for a longer time than is reasonably necessary to remove them; if he does so, he is a trespasser. Rowley «. Rice, (11 Met.) 52 337; Malcom v. Spoor, (12 Met.) 53 279; Boynton v. Warren, 99 172; Williams v. Powell, lOl 467; Davis v. Stone, 120 228; Cutter v, Howe, 122 541. Vol. 1—12 89. The seizure and removal of specific chat- tels of a partnership upon mesne process, or execution, against one member for his private debt, and the exclusion of the firm from the possession of the property, constitute a trespass. Sanborn «. Royce, 132 594; Craw- ford v. Capen, 132 596, note. ' See, also, Melville v. Brown, 15 82. 90. The statute, G. S., Ch. 128, §§ 87, 88; P. S. , Ch. 161, §§ 105, 106, relating to the appraisal, etc., of property, attached in an action against one joint owner, does not apply to such a seizure. Breck n. Blair, 129 127. 91. Held, under the act of 1804, for attach- ing shares in a corporation, that if the charter of a particular company, previously enacted, contained different provisions, they were sus- pended by the act; but such pro visions in a subsequent charter abrogated the act as to the particular company. Titcomb v. Union Ins. Co., 8 326; Howe v. Starkweather, 17 240; Hussey v. Manuf. Bk., (10 P.) 27 415. 92. If an attachment is made by forcing the outer door of the defendant's dwelling, it is void; but an outer door of a warehouse maybe forced. Ilsley v. Nichols, (12 P.) 29 270; Piatt v. Brown, (16 P.) 33 553. 93. The officer is a trespasser, and the attach- ment invalid, if he enters the outer door of a dwelling occupied in apartments by different tenants, and breaks the door of an apartment to attach a third person's goods therein. Swain v. Mizner, (8 G.) 74 182. 94. A mortgagee of a dwelling house, occu- pied by the mortgagor, without a stipulation for possession, may enter with an officer, and attach the mortgagor's goods therein for another debt. Lackey ®. Holbrook, (11 Met.) 52 458. 95. As to the mode of attaching articles too bulky to be removed, before the statute, R. S., Ch. 90, § 33; G. S., Ch. 123, § 57; P. S., Ch. 161, § 69, see Merrill ». Sawyer, (8 P.) 25 397; Ashmun ». Williams, (8 P.) 25 40a; Hemmenway v. Wheeler, (14 P.) 31 408. 96. The statute applies to cord wood, char coal, pig iron, and other articles in large quan- tities, or of great weight. Reed v. Howard, (2 Met.) 43 3fr, Scovill ». Root, (10 A.) 92 414. 97. It applies to property which cannot be removed without being damaged, as tobacco in process of curing. Cheshire Nat. Bk. v. Jewett, 119 241. 98. And to glass in large plates, which can- not be moved without danger of breaking it. Polley v. Lenox I. Works, (4 A.) 86 329. 99. But not to standing corn and potatoes ready for harvesting. Heard ®. Fairbanks, (5 Met.) 46 111. 100. An officer who has attached goods under the statute, is not liable, if they are afterwards removed by a third person, without his knowl- edge; nor can he maintain trover against an- 90 ATTACHMENT, I, (6); II, (1). other officer, subsequently attaching them in the same way. Hubbellw.Root, (2 A.) 84 185; Polley v. Lenox Iron Works, (4 A.) 86 329; Scovill ». Root, (10 A.) 92 414. 101. In reckoning the time, within which the papers must be filed in the town clerk's office, the day of the attachment is excluded. Bemis v. Leonard, 118 502. 102. "Where articles are attached under the statute, and other articles are, at the same time and under the same writ, attached in the ordi- nary way and removed, it is necessary to make return of the former only. Arnold v. Stevens, (11 Met.) 52 258. (6.) Fraudulent attachments, 103. Where A, desiring to purchase mortgaged land, pays to the mortgagee the value of his in- terest, and the mortgagee reconveys to the mort- gagor, to enable him to convey the whole estate to A, and immediately afterwards, and before the deed to A is executed, attaches the land in a suit against the mortgagor, the attachment is fraudulent and void as against A, and the at- taching creditor is liable in trespass for a sub- sequent levy. Spear v. Hubbard, (4 P.) 21 143. 104. But where it is agreed between a creditor and his debtor, that the debt shall be paid by land at a value fixed by appraisers, and if either party refuses to abide by the appraisal he shall pay the the expenses of it, an attachment of the land before the appraisal is not fraudulent, be- cause the appraisal was not to be obligatory. Hammatt v. Bassett, (2 P.) 19 564. 105. If a creditor induces his non-resident debtor to bring into this Commonwealth, prop- erty which is exempt by the law of his resi- dence, in order that it may be attached, and at- taches it accordingly, the attachment is fraudu- lent and void, and the creditor and the officer are trespassers, although the latter was ignorant of the fraud. Deyo v, Jennison, (10 A.) 92 410. 106. So an attachment is fraudulent, where a creditor of the vendor of a chattel secreted it, and attached it before delivery. Parsons v. Dickinson, (11 P.) 28 352. 107. So where a creditor agrees with other creditors to place their demands in the hands of an assignee of the debtor, to enable the latter to sell the stock and divide the proceeds ratably. Bull v. Loveland, (10 P.) 27 9. 108. If the writ contains an honest and a fraudulent demand, and judgment is taken upon both, the attachment is fraudulent as to other creditors. Fairfield ». Baldwin, (12 P.) 29 388; Peirce v. Partridge, (3 Met.) 44 44. 109. Aliter, where judgment is taken merely by mistake of the attorney, for more than isdue on an honest debt, and the mistake is corrected on the execution. Felton v. Wadsworth, (7 C.) 61 587. II. Rights, Duties, and Liabilities afteb the Attachment. CI.) Officer. 110. The charging of unlawful fees by an officer does not make him a trespasser ab initio, or avoid a sale of appraised attached property; nor does an illegal attachment by him of the funds in his hands after a sale. Wheeler «. Raymond, 130 247. See, also, Holmes «. Hall, (4 Met.) 45 419; Stevens v. Roberts, 121 555. 111. An officer who has attached property under two successive writs, the plaintiff in the second of which is the attorney for the plaintiff in the first, need not give the plaintiff in the second writ notice of an appraisal, made pursu- ant to a request of the plaintiff in the first by his attorney. , Wheeler v. Raymond, 130 247. 112. An appraisal of two or more articles at a round sum is not illegal; and where they have been so appraised, and before the sale' the officer dissolves the attachment on one, that does not invalidate the sale of the others, unless the debtor has offered to deposit money, or give a bond, as required by the statute. Wheeler ». Raymond, 130 247. 113. Nor does the sale of an indivisible article, for a sum which, with the other pro- ceeds, exceeds the amount called for by the precept, if enough had not been previously re- ft 1 1 7 P(\ 'Wheeler v. Raymond, 130 247. 114. The statute relating to appraisal and sale extends to any chattels, likely to depreciate greatly in value by keeping, or which cannot be kept without great and disproportionate ex- pense; and the appraisers' certificate is conclu- sive between the parties upon that question and the value. Crocker v. Baker, (18 P.) 35 407. 115. But the certificate is not conclusive against a third person claiming the property. Adams v. Wheeler, 97 67. 116. The statute extends to mortgaged prop- erty, and makes no provision for notice to the mortgagee. Jackson v. Colcord, 114 60. 117. Where one of the appraisers is the at- taching creditor's brother, the proceedings are void, and the officer becomes a trespasser ab initio by selling. McGough v. Wellington, (6 A.) 88 505. 118. Giving credit to the purchaser does not invalidate the sale; but where the property is sold, to be delivered on payment, and is not paid for or delivered, nor is it resold within ten days, no title passes to the purchaser, and it cannot be attached in a suit against him. Crocker v. Baker, (18 P.) 35 407; Davis ». Rhoades, 124 291. 119. Where the property is sold under the statute, the defendant, upon his prevailing in the action, cannot recover the expenses of sale, which were deducted from the proceeds. Pollard v. Baker, 101 259. 120. In order to retain the lien of an attach- ment, the officer must retain the custody and control of the property. If he, or his keeper, abandons possession at any time, the attachment is lost. Train v. Wellington, 12 495; Bridge fl.Wyman, 14 190; Gale «. Ward, 14 352; Denny v. Warren, 16 420; Bag- ley v. White, (4 P.) 21 395; Merrill 9. Sawyer, (8 P.) 25 397; Carrington v. Smith, (8 P.) 25 419; Robinson 9. Mans- ATTACHMENT, II, (1). 91 field, (13 P.) 30 139; Fettyplace v. Dutch, (13 P.) 30 388; Sanderson v. Edwards, (16 P.) 33 144; Boynton s. "Warren, 99 172; Harriman v. Gray, 108 229; Comm. o. Brigham, 123 248. [See the foregoing 1 cases for Illustrations, as to the necessity of removal, etc., and the sufficiency or in- sufficiency of the officer's control or possession in particular cases.] 121. The rule must he reasonably construed, and is qualified according to the necessities of the case, irrespectively of the statute, where the articles attached are immovable, by reason of their bulk, weight, or other circumstances. Gibbs v. Chase, 10 125; Ashmun v. Williams, (8 P.) 25 402; Hemmenway v. Wheeler, (14 P.) 31 408; Shephard v. Butterfield, (4 C.) 58 425. 122. So as to property, which is in such a condition that it cannot be immediately re- moved without great damage. Cheshire Nat. Bk. v. Jewett, 119 241. 123. If the officer allows the goods attached to become mixed with other goods of the debtor, the lien is lost. Gordon v. Jenney, 16 465; Bagley v. White, (4 P.) 21 395; Sawyer «. Mer- rill, (6 P.) 23 478. [See Confusion and Accession of Chattels.] 124. If the officer's receiptor delivers the goods to the debtor, upon a promise to deliver them upon demand, the lien is lost. Baker v. Warren, (6 G.) 72 527. [ Semble,tha,t this case overrules Bond v. Padelford, IS 3,'4.] 125. The lien is not lost, merely because the officer employed the debtor's wife as keeper. Farrington v. Edgerley, (13 A.) 95 453. 126. Nor because he allows the debtor and his family to continue to use certain articles, which will not be injured thereby. Train v. Wellington, 12 495; Bald- win i). Jackson, 12 131. 127. But it is lost by the sale of perishable property, otherwise than in pursuance of the statute, and without the consent of both parties. Eldridge v. Lancy (17 P.) 34 352. 128. It is not lost where the officer takes the goods into an adjoining state, and delivers them to a bailee there. Brownell B.Manchester, (IP.) 18 232. 129. Nor because they are removed to another place without authority of the officer, if the lat- ter seasonably makes known his rights to others, claiming under a subsequent attachment made there. Butterfield «. Clemence, (10 C.) .64 269. 130. An officer is liable for attached property stolen, if he has been careless, otherwise not. Dorman 11. Kane, (5 A.) 87 38. 131. An officer is liable to the debtor for falsely representing to him, that he had attached cer- tain property, whereby the debtor failed to take proper care of it, and it perished. Burns v. Lane, 138 350. 132. An officer, who has lawfully attached and retained goods, has a special property in them, which prevents any other officer from at- taching them, and enables him to maintain tro- ver, trespass, or replevin, against one who takes them from him or his keeper, or a bailee of either, or refuses to surrender them on demand. Ladd s. North, 2 514; Watson «. Todd, 5 271; Vinton v. Bradford, 13 114; Gordon t>. Jenney, 16 465 ; Baker «. Fuller, (21 P.) 38 318; Eobinson«. En- sign, (6 G.) 72 300. 133. His executor may also maintain the ac- tion. Badlam v. Tucker, (1 P.) 18 389. 134. Qu., whether an officer can attach goods in the hands of one summoned as trustee of the same debtor. If he can, he must return them on demand of the trustee. Rockwooda.Varnum, (17 P.) 34 289. 135. At common law, an officer attaching property owned by the debtor, in common with another, must take possession of and retain the whole, although he can only sell the debtor's in- ' Reed «. Howard, (2 Met.) 43 36. [See, ante, arts. 89, 90.] 136. The officer may purchase the attached property subject to the lien of the attachment. Arnold v. Brown, (24 P.) 41 89. ' 137. If judgment passes for the defendant, the officer may recover from the plaintiff, upon an implied promise, his expenses in supporting animals attached. Phelps v. Campbell, (1 P.) 18 59; Boyden v. Moore, (11 P.) 28 362. 138. The officer may defend an action by a third person for goods attached, on the ground that the plaintiff's title was acquired fraudu- lently, although the attachment was dissolved, by withdrawing the action in which it was made. Williams v. Greene, (2 C.) 56 465. 139. A mortgagor in possession may maintain an action against an officer for wrongfully at- taching personal property, although the attach- ment constitutes a breach of the condition of the mortgage. Copp v. Williams, 135 401. [For additional rulings as to mortgaged chattels, see Chattel Mortgage, III, (2).] 140. In an action against an officer for attach- ing exempt property, the burden is upon the plaintiff to prove all the facts upon which the exemption depends. Clapps. Thomas, (5 A.) 87 158; Gay v. South worth, 113 333. See, also, Gibsons. Jenney, 15 205; Danforth t>. Woodward, (10 P.) 27 423; Wallace v. Bartlett, 108 52. 141. In such an action, the plaintiff may prove a demand of restoration from, and a re- fusal by, the indemnifying creditor. Mannan e. Merritt, (11 A.) 93 582. 142. If the exempt articles are plainly dis- tinguishable as such, a demand and refusal are not necessary to maintain the action. Woods v. Keyes, (14 A.) 96 236. 143. And an omission to claim them, when attached, does not, as matter of law, waive the exemption. Copp v. Williams, 135 401. [See, also, ante, art. 43.] 92 ATTACHMENT, II, (1), (2), (3). 144. An agreement between the debtor and the creditor, that the exempt property might be sold at auction on a certain day, is a waiver of the exemption. Dow v. Cheney. 103 181. [For parallel cases, arising' out of the levy upon and sale of exempt articles under an execution, see Execution, If, (1).] 145. In order to perfect an attachment and make it available to him as a justification, an officer must return the writ to the court, with his return thereon. Wilder «. Holden, (34 P.) 41 8; Tubbs •». Tukey, (3 C.) 57 438; Russ«. Butterfield, (6 C.) 60 242; Kent v. Willey, (11 G) 77 368; Paine v. Farr, 118 74; "Wiggins. Atkins, 136 292. 146. But where the parties agree that the property shall be restored, and the writ need not be returned, he may justify without a return. Williams v. Babbitt, (14 G.) 80 141; Paine v. Parr, 118 74. 147. So where the property a tached is sur- rendered, and money substituted therefor, at the defendant's request. Taylor 1>. Knowlton, (10 A.) 92 137; Paine «. Parr, 118 74. 148. An officer who fails to make a return, cannot, after judgment against him by the de- fendant in the attachment suit, maintain an action upon a bond of indemnity given to him by the plaintiff in that action. Wiggin v. Atkins, 136 292. 149. Where property is appraised and sold under the statute as perishable, etc. , the lien is not lost by a failure to return the sale. Eastman «. Eveleth, (4 Met ) 45 137. 150. Semble, that a return which is too vague and general, may be amended so as to be valid. Haven *. Snow, (14 P.) 31 28; Baxter v. Rice, (21 P.) 38 197. See, also, Amendment, II.] 151. For rulings as to the sufficiency and effect of a return upon an attachment, see Bacon». Leonard, (4P.) 21 277; Whit- aker v. Sumner, (9 P.) 26 308; Taylor i). Mixter, (11 P.) 28 341; Baxter v. Rice, (21 P..) 38 197; Reed v. Howard, (2 Met.) 43 36. [For similar rulings as to returns generally, see Office and Officer, I, (4).] (2.) Debtor. 152. The general property of goods attached continues in the debtor, and he may sell or mortgage his interest therein, and pass a good title, subject to the attachment. Tiixworth ». Moore, (9 P.) 26 347; Denny v. Willard, (11 P.) 28 519; Fet- typlace v. Dutch, (13 P.) 30 388; "Whit- aker v. Sumner, (20 P.) 37 399; Apple- ton i). Bancroft, (10 Met.) 51 231; First Ward Nat. Bk. v. Thomas, 125 278. 153. And upon such a sale or mortgage, a symbolical delivery suffices, the vendor being out of possession. Whipple v. Thayer, (16 P.) 33 25; Arnold «. Brown, (24 P.) 41 89; Home v. Briggs, 98 510 154 Where a mortgage is given, the registra- tion thereof is a good symbolical delivery of the property. J Bullock ». Williams, (16 P.) 33 33; Appleton v. Bancroft, (10 Met.) 51 231; Home v. Briggs, 98 510. 155. The debtor is bound to support his at- tached beasts, and if they perish, from his neg- lect so to do, the loss is his. Sewall v. Mattoon, 9 535; Tyler a. Ulmer, 12 163. 156. But where the defendant has judgment, the expenses paid for that purpose, by the offi- cer, may be recovered from the plaintiff. Phelps v. Campbell, (1 P.) 18 59; Boyden v. Moore, (11 P.) 28 362. (3.) Receiptor. 157. The owner of goods, by receipting for them when they are attached as the property of another, does not preclude himself from after- wards asserting his title. Edmunds v. Hill, 133 445. 158. A receiptor for attached goods, who has delivered them to the debtor, is discharged from liability to the officer, if execution is not taken out within thirty days after judgment, or a de- mand is not made upon him within that time. Aliter, if he has not so delivered them. Knap 1). Sprague, 9 258; Webster «. Coffin, 14 196; Cooper v. Mowry, 16 5; Baker «. Fuller (21 P.) 38 318. 159. A demand is not necessary, if the re- ceiptor's contract is to deliver, after judgment, at a certain place. Wentworth v. Leonard, (4 C.) 58 414; Hodskin v. Cox, (7 C.) 61 471. 160. Or if he has suffered the owner to send the goods out of the Commonwealth. Webster «. Coffin, 14 196. 161. If he has disabled himself, semble, that this should be alleged as an excuse for not making a demand. Baker a. Fuller, (21 P.) 38 318. 162. A demand upon one of two joint receipt- ors suffices, the other being out of the county. Griswold v. Plumb, 13 298. 163. A demand upon the receiptor's wife suf- fices, he being out of the Commonwealth. Mason v. Briggs, 16 453. 164. Qu., if such a demand suffices, where the receiptor is only temporarily absent. Moore ». Fargo, 112 254. 165. For various rulings as to the sufficiency of the demand, and the officer's authority to make it, see Moore v. Fargo, 112 254. 166. A receiptor, sued by the officer, cannot defend himself on the ground that the action, in which the attachment was made, was aban- doned, and the goods afterwards taken from him upon another attachment against the owner. Whittier v. Smith, 11 211. 167. The creditor is not a party to the re- ceipt, and the receiptor is responsible to the officer only. Phillips v. Bridge, 11 242. See, how- ever, Moore v. Fargo, 112 254. 168. A receiptor who pays the amount of the execution, after the officer has set off real estate to the creditor in satisfaction thereof, and takes a deed of the land from the creditor, under an arrangement between himself and the creditor, cannot maintain an action against the debtor ATTACHMENT, II, (3). 93 for money paid, although the land was sold upon the debtor's prior mortgage, for less than the mortgage debt, as the debtor was a stranger to the arrangment. Woodward v. Munson, 126 102. 169. If the receiptor takes the attached prop- erty to another state, and procures it to be there attached, in a suit there, brought between the same parties for the same debt, and it is sold under an execution issued upon a judgment in the last-named suit, whereupon the suit here is abandoned, he is not liable, in trover, to the owner. Chase v. Andrews, (6 C.) 60 114. 170. In an action by the officer, the receipt is conclusive upon the defendant as to the value of the property, and the fact of the attachment. Lyman v. Lyman, 11 317; Jewett v. Torrey, 11 219; Wakefield e. Stedman, (12 P.) 29 562. 171. And the defendant in suoh an action cannot show, that the officer orally agreed to dis- charge him, upon certain terms not expressed in the receipt. Wakefield v. Stedman, (12 P.) 29 562; Curtis «. Wakefield, (15 P.) 32 437. 172. But he can show that the goods belonged to a third person, who has reclaimed them. Learned is. Bryant, 13 224; Burt v. Perkins, (9 G.) 75 317. 173. But a receiptor's absolute agreement to pay the plaintiff the amount of any judgment, which he may recover, may be enforced, al- though the attached property did not belong to the defendant in the attachment, and perished before judgment was recovered. Hayes ». Kyle, (8 A.) 90 300. 174. And where the form of the receipt, or the circumstances under which it was given, import that it was an absolute assurance for a certain amount or value of attachable property, the receiptor cannot defend it, by proof that the debtor had no title to the particular property at- tached. Dewey «. Field, (4 Met.) 45 381; Wentworth v. Leonard, (4 C.) 58 414; Thayer v. Hunt, (2 A.) 84 449; Bacon o. Daniels, 116 474. See, however, Robinson «. Mansfield, (13 P.) 30 139; Bursley v. Hamilton, (15 P.) 32 40. 175. But where the receiptor has delivered the property to the officer according to his con- tract, he is not estopped by his receipt from maintaining an action against the officer, claim- ing title in himself. Johns v. Church, (12 P.) 29 557; Rob- inson v. Mansfield, (13 P.) 30 139. 176. Where the officer has actually taken the goods from the debtor's possession, the receip- tor cannot, in defence of the officer's action, show that the goods were exempt; but where they are receipted for, without being actually taken, he can. Smith ». Cudworth, (24 P.) 41 196- Thayer v. Hunt, (2 A.) 84 449. 177. Where goods are attached in the hands of a third person, having a lien upon them, and he receipts for them, under an agreement that he shall continue to retain for his lien, and after- wards they are attached at his own suit, and he receipts for them, still asserting his lien, the lien is not discharged. Townsend v. Newell, (14 P.) 31 332. 178. A deputy sheriff may maintain an action in his own name upon a receiptor's agreement running to him. Colwell e. Richards, (9 G.) 75 374; Parker v. Warren, (2 A.) 84 187. 179. A receiptor, who has allowed the at- tached property to remain in the debtor's pos- session, by whom it has been sold, so that it could not be delivered when called for, is not exonerated by subsequently procuring the prop- erty, or its equivalent, and offering it to the officer. Thayer t>. Hunt, (2 A.) 84 449. 180. And where an animal, delivered to the debtor, and sold by him, has since died, with- out any one's fault, the receiptor is liable. Thayer ». Hunt, (2 A.) 84 449. 181. A receiptor is not discharged by an offer to redeliver the property to the officer before demand, unless the receipt so provides. Rowland «. Cooper, (16 G.) 82 53. 182. Where goods of a partnership are at- tached in an action against one of the firm, the receiptor may, in defence to an action against him, show that the partnership was insolvent at the time of the attachment, and that soon after the members of the firm went into bankruptcy, and obtained their discharge. Lewis v. Webber, 116 450. 183. The effect of the poor debtor's law of this Commonwealth, is that a receiptor is not discharged by a commitment of the debtor under an execution. Lyman v. Lyman, 11 317; Bailey *. Jewett, 14 155; Twining v. Foot, (5 C ) 59 512. See, also, Murray •». Shearer, (7 C.) 61 333; Moore e. Loring, 106 455; Tracy v. Preble, 117 4. 184. Nor is he discharged by a recovery of judgment in favor of the creditor, upon a bond for the prison limits. Twining v. Foot, (5 C.) 59 512. 185. Nor by the fact that the sheriff has an execution against the judgment creditor, in favor of the judgment debtor, which he has been re- quested to set off. Jenney v. Rodman, 16 464. 186. Nor by an agreement between the parties to the action, that the receipt shall not be en- forced until a certain time after the judgment, and forbearance accordingly. Ives v. Hamlin, (5 C.) 59 534. 187. Nor by a discharge of the debtor, under the United States bankrupt law, if the lien of the attachment is one that proceedings in bank- ruptcy would not avoid. Ives v. Sturgis, (12 Met.) 53 462. 188. But the debtor's discharge under the in" solvency law of this Commonwealth, dissolves an attachment, and the discharge is conse- quently a defence to a receiptor, although his contract is absolute to redeliver the property on demand, or, in the alternative, to redeliver it, or pay the judgment. Sprague v. Wheatland, (3 Met.) 44 416; Andrews ®. Southwick, (13 Met.) 54 535; Butterfield v. Converse, (10 C.) 64 317; Shumway i>. Carpenter, (13 A.) 95 68. 189. Alitor, if the insolvency court directed that the attachment should survive, and the as- 94 ATTACHMENT, III; IV, (1). signee, by leave of the court, prosecuted the action to judgment, and issued the execution. Parker ». Warren, (2 A.) 84 187. 190. A mere bailee of the officer, being only the officer's servant, cannot maintain trover or replevin for goods attached, as he has neither the general or special property. Perley v. Foster, 9 112; Warren v. Leland, 9 265; Ludden i>. Leavitt, 9 104. 191. Semble, that the same rule applies to a receiptor, who has undertaken to redeliver the goods on demand. Comm. v. Morse, 14 217. 192. A receiptor is liable, although the officer did not return the precept into court, until after the first day of the term, and after the cause had been removed to the IT. S. circuit court. Nims «. Spurr, 138 209. III. Rights and Liabilities under simul- taneous OR SUCCESSIVE ATTACHMENTS. 193. Where an officer, having two or more trustee writs, delivers copies of all to the trustee at the same time, the attachments are simul- taneous, and each of the plaintiffs is entitled to an aliquot part of the proceeds of the goods. Rockwoodu. Varnum, (17 P.) 34 289. 194. Where two creditors cause the same land to be attached by two officers, one of whom returns that he attached the land one minute after a certain hour, and the other that he at- tached it immediately after the same hour, the attachments are deemed to be simultaneous. Shove i>. Dow, 13 529. 195. Where two creditors simultanously at- tach the same land, and each causes his execu- tion to be levied thereupon, within thirty days after his judgment, each takes a moiety of the land, without regard to the amount of his ex- ecution; but if one's moiety is more than enough to satisfy his execution, the surplus goes to the other. Shove v. Dow, 13 529; Sigourney «. Eaton, (14 P.) 31 414; Durant e. John- son, (19 P.) 36 544. 196. Goods in the hands of one, who has been summoned as a trustee, may be attached and taken possession of, in a suit by another creditor of the same debtor, and the second attaching officer holds them, subject to the lien of the trustee, for any judgment which may be recov- ered against him in the first suit. Burlingame v. Bell, 16 318; Piatt e. Brown, (16 P.) 33 553. 197. AUter, as to the officer's right to take possession. Rockwood ii. Varnum, (17 P.) 34 289. 198. A second attachment of goods already attached, can be made only by the officer who made the first attachment; aliter, of land. Watson «. Todd, 5 271; Vinton «. Bradford, 13 114; Robinson v. Ensign, (6G.) 72 300. 199. Where land is attached under successive writs, the second attaching creditor must delay his judgment until the prior suit is disposed of. Barnard v. Fisher, 7 71; Wadsworth v. Willams, 97 339. 200. A second attachment of a debtor's right title, and interest in land, attaches his right of redeeming the land from the first attachment, and is an incumbrance, within a covenant against incumbrances. Norton v. Babcock, (2 Met.) 43 510. 201. An attachment of goods of tenants in common, in a suit against one, is valid against a subsequent attachment in a suit against both Thorndike «. De Wolf, (6 P.) 23 120. 202. An attachment of a debt due to one partner, in a suit against the firm, is valid against a subsequent attachment in a suit against the firm. Allen v. Wells, (22 P.) 39 450; New- man v. Bagley, (16 P.) 33 570; Stevens v. Perry, 113 380. 203. A subsequent attaching creditor, who orally consents that the officer may proceed with a sale, pursuant to a written agreement be- tween the first attaching creditor and the debtor, but forbids paying over the proceeds, cannot object that the sale was made without the con- sent of all the attaching creditors. Eastman v. Eveleth, (4 Met.) 45 137. 204. A prior mortgagee cannot dispute the validity and effect of an attachment under the statute. R. S., Ch. 90, 88 83, 84; G. S., Ch. 123, §92; P. S., Ch. 161, §110. Peirce v. Richardson, (9 Met.) 50 69. 205. An attachment under a writ, issued from the superior court, cannot be attacked, under • that statute, by a subsequent attaching creditor, under a writ issued by a justice of the peace. Putnam v. Bixby, (6 G.) 72 528. 206. Where a prior attachment is thus dis- puted, and the statutory bond is given, the prior attaching creditor has no remedy for costs, if he fails to take a judgment for costs. Whitwell v. Burnside, (1 Met.) 42 39. 207. Held, under the corresponding act of 1823, that the right to defend was cumulative, and did not defeat any remedy which the cred- itor had at common law. Adams v. Paige, (7 P.) 24 542. 208. Also, that the creditor defending was not confined to defences open to the debtor. Carter «. Gregory, (8 P.) 25 165. 209. Also, that the plaintiff in the action thus defended cannot give in evidence his own dec- larations. Carter v. Gregory, (8 P.) 25 165. 210. But that he might give in evidence the admissions of the debtor, that his demand was bona fide. Strong v. Wheeler, (5 P.) 22 410; Lambert ». Craig, (12 P.) 29 199. rv. Dissolution. (1.) By bond. 211. The approval and filing of the statutory bond dissolve an attachment, without any order of the court. O'Hare v. Downing, 130 16. 212. A bond to dissolve an attachment did not require an U. S. revenue stamp. Sampson v. Barnard, 98 359. 213. Where A signs such a bond, as one of two sureties, but upon his answers as to his es- tate to the magistrate it is not approved, and he goes away; and subsequently another surety is obtained, and the bond approved, A is liable. Sampson v. Barnard, 98 359. ATTACHMENT, IV, (1), (2). 95 214. So where the principal secures the obligee's approval, after the magistrate has re- jected A. Daley 0. Carney, 117 288. 215. An omission to state in the bond whose goods are attached, does not invalidate the bon#, if the suit is correctly described; nor does a clerical error, whereby one defendant only is named, or the creditor's name is inserted in place of the defendant's. Leonard v. Speidel, 104 356; Hewes v. Cooper, 115 42; Central Mills 0. Stewart, 133 461. 216. If the bond, under the act of 1875, is accepted by the creditor, or substantially com- plies with the statute, it is valid, although it does not contain the condition required by the act of 1875; P. S., Oh. 161, § 122. Mosher 0. Murphy, 121 276; Smith 0. Meegan, 122 6; Central Mills v. Stewart, 133 461. 217. Nor because it is not filed. Smith D. Meegan, 122 6. 218. In an action on the bond, judgment will go for the full penalty, although it exceeds the sum recovered by the plaintiff against the prin- cipal obligor. Leonard 0. Speidel, 104 356. 219. The surety in the bond is not estopped to assert his own title to the attached property, against a subsequent attachment thereof by the obligee. Rogers «. Bishop, (9 G.) 75 225. 220. The defendant's signature to the written application, under § 126 of the P. S., is not essential. Comm. v. Costello, 120 358. 221. The bond under § 128 of the P. S. is good, although it does not precisely follow the language of the statute. Comm. v. Costello, 128 88. 222. AUter, however, where it is inconsistent with the statute. Caldwell v. Healey, 121 549. 223. An attachment, made more than four months before proceedings in bankruptcy, may be dissolved by bond under the statute. Braley 0. Boomer, 116 527. 224. As to the effect of the act of 1875, where 'a bond had been previously given, see Bushu. Hovey, 124 217. 225. The condition of a bond given under G S., Ch. 123, § 104; P. S., Ch. 161, § 122, is broken if the judgment remains unpaid thirty days, al- though execution is not taken out, or demand made. Campbell v. Brown, 121 516; Tapley v. Goodsell, 122 176. 226. Or, although the principal has died, and his estate is represented insolvent, or although he has taken the benefit of the insolvent acts Gass 0. Smith, (6 G.) 72 112; N. E. S. & G. P. Co. «. Parker, (10 G.) 76 333. 227. But where a bond to deliver up the prop- erty requires a demand, and contains stipula- tions respecting a mortgage debt of the surety a demand and compliance with the other condi- tions are essential to maintaining an action upon Smith 0. Jewell, (14 G.) 80 222, 228. A bond, conditioned to pay the judg- ment, is not affected by the arrest, pending an action thereupon, of the debtor upon execution in the original action; and if the debtor, to re- lieve himself from the arrest, gives a recogniz- ance under the poor debtors' act, and is de- faulted thereupon, the creditor may pursue both remedies Murray 0. Shearer, (7 C.) 61 333; Moore v. Loring, 106 455. See, also, Lyman v. Lyman, 11 317; Almy v. Wolcott, 13 73; Bailey 0. Jewett, 14 155; Twining 0. Foot, (5 C.) 59 512; Tracy 0. Preble, 117 4. 229. An action upon such a bond is properly brought by surviving obligees. And where the proceedings proved are those taken upon a peti- tion to enforce the liens of the plaintiffs and others, against a vessel, this is sufficient to prove a breach. Donnell 0. Manson, 109 576. 230. Where real property of each of two de- fendants is attached, in an action against them as maker and guarantor of a promissory note, and the guarantor, to dissolve the attachment on his property, gives a general bond to pay the judg- ment; and afterwards separate judgments are taken, and separate executions issued, the bond is satisfied, if the guarantor pays the judgment and execution against himself, those against the maker being for a larger sum. Walker 0. Dresser, HO 350. 231. But where two are sued as joint owners of a vessel, and the vessel is attached as their property, and the attachment dissolved, and the vessel delivered to one, upon such a general bond, the other not joining, the one who gave the bond is liable, if judgment is taken against the other by default, although judgment passed in favor of himself. Campbell 0. Brown, 121 516. 232. Where, however, in a similar case, the bond recites only the obligor as defendant, and he tprocures a judgment against him to be re- versed upon a writ of error, he is not bound to pay the unreversed judgment against the other defendant. Eveleth v. Burnham, 108 374. 233. Where a part owner dissolves an attach- ment under G. S., Ch. 123, § 88; P. S., Ch. 161, I 106, and the other part owner, the defendant in the attachment, afterwards dissolves the at- tachment by bond, under § 104 of G. S. ; § 122 of P. S., an action will not lie upon the first bond. Dearborn 0. Richardson, 108 565. 234. If a bond to dissolve an attachment in the district court is not approved, as required by the statute, and the principal appeals, with- out giving an appeal bond with a surety, the plaintiff may maintain an action on the attach- ment bond. Pogel 0. Dussault, 141 154. [As to the effect, upon the bond, of amendments to the proceedings in the action, see Amendment, IV. As to the effect of proceedings in bankruptcy, see post, IV, (2). As to the dissolution of an attachment under a trustee process by bond, see Tbustee Pro- cess, IV, (3.)] (2.) In other modes. [As to the effect npon the attachment of amend- ments to the proceedings, see Amendment, VI.] 235. An attachment, within four months of the commencement of bankruptcy proceedings, 96 ATTACHMENT, IV, (2). ■was dissolved under the U. S. bankrupt act of 1867, by the assignment only; and a compo- sition did not affect the attaching creditor, if he took no part in the proceedings. Sage v. Heller, 124 213; Sullivan v. Langley, 124 a64; Moors v. Albro, 129 9. See, also, Munson v. Boston, etc., B. K., 120 81. 236. An assignment discharged such an at- tachment of a sum due for services, which had been assigned by the bankrupt before it was pfirnPQ Blume v. Gilbert, 124 215. 237. The four months were reckoned, exclu- sive of the first day, and, also, if the last day fell on Sunday, exclusive of that also. Cooley i). Cook, 125 406. See, also, Eichards v. Clark, 124 491. 238. An attachment, after adjudication, was void, and the officer a trespasser. Williams v. Merritt, 103 184. 2J9. The assignment did not prevent the en- forcement of a judgment, upon such prop- erty, as had been attached more than four months before the commencement of the pro- ceedings. Bates v. Tappan, 99 376. 240. As to the form of the speciS judgment in such a case, see Bosworth v, Pomeroy, 112 293; Stockwell v. Silloway, 113 382; John- son v. Collins, 116 392. 241. But a discharge was a bar to the further prosecution of a suit, commenced by attachment more than four months before the bankruptcy proceedings, where the attachment was dissolved by a bond under the statute of the Common- wealth; and a special judgment to save the bond could not be taken. Carpenter «. Turrell, 100 450; Ham- ilton ». Bryant, 114 543. See, also, Loring v. Eager, (3 C.) 57 188. 242. A bond cannot be given to discharge such an attachment, after a discharge in bank- ruptcy, which has been pleaded by the defend- ant,' and special judgment directed for the plaintiff. Johnson v. Collins, 117 343. 243. See further as to the right to a special judgment under the act of 1875; P. S., Ch. 171, §§ 23, 24, Pickett v. Durham, 119 159; Bay «. "Wight, 119 426; Towne t>. Bice, 122 67; Barnstable Sav. Bk. v. Higgins, 124 115; Denny «. Merrifield, 128 228; Comstock v, Peck, 128 231, note. 244. As to the effect upon an attachment, of bankruptcy proceedings under the TJ. S. bank- rupt law of 1841, see Ames v. Wentworth, (5 Met.) 46 294; Davenport «. Tilton, (10 Met.) 51 320; Ives o. Sturgis, (12 Met.) 53 462. 245. Under the existing insolvent law of the Commonwealth, an assignment in proceedings in insolvency, dissolves an attachment made not more than four months before the first pub- lication of notice. St. 1860, Ch. 246; G. S., Ch. 118, § 44; P. S., Ch. 157, 6 46. Bussell Paper Co. ■». Smith, 135 588. 246. Proceedings in insolvency did not, under St. 1838, Ch. 163, and do not, under the present statute, dissolve an attachment until assignment. Cutter v. Gay, (8 A.) 90 134; Hill v. Keyes, (10 A.) 92 258. 247. The statute of 1838 applied to an attach, ment, made after it took effect, upon a debt incurred before its enactment. • Bigelow v. Pritchard, (21 P.) 38 169. 248. But not to an attachment made before the act was passed. Kilbom v. Lyman, (6 Met.) 47 299. 249. Or where the master in chancery had not jurisdiction. Claflin t>. Beach, (4 Met.) 45 392. ■ 250. For other rulings, respecting the dissolu- tion of an attachment under the former insol- vent act, see Allen v. Wells, (22 P.) 39 450; Sprague v. Wheatland,( 3 Met.) 44 416; Grant v. Lyman, (4 Met.) 45 470; Ward v. Proctor, (7 Met.) 48 318; Stetson «. Hayden, (8 Met.) 49 29; Andrews v. Southwick, (13 Met.) 54 535; Shelton c. Codman, (3 C.) 57 318; Pern v. Cush- ing, (4 C. ) 58 357; Edwards ». Sumner, (4 C.) 58 393; Butterfield «. Converse, (10 C.) 64 317; Shunrway s. Carpenter, (13 A.) 95 68. [For rulings upon the provisions of the statute, authorizing the continuance of an action by the as- signee, gee Insolvent, VI, (3).] 251. For rulings as to the discharge of an at- tachment against a corporation by proceedings to appoint a receiver, see Atlas Bk. v. Nahant Bk., (23 P.) 40 480; Hubbard v. Hamilton Bk., (7 Met.) 48 340; Pingree v. Hudson B. Ins. Co., (10 G.) 76 170. 252. A discharge of a trustee, who has given bond under the act of 1877, discharges the at- tachment. Porter v. Giles, 129 589. 253. Where the creditor of a mortgagor at- taches personal property in the latter's posses- sion, and summons the mortgagee as trustee, and the trustee is discharged, or the creditor discontinues as to him, the attachment is dis- charged. Martin v. Bayley, (1 A.) 83 381; Hay- ward v. George, (13 A.) 95 66; Gould- i D g v. Hair, 133 78. 254. And if the officer has sold, and paid over the proceeds, before the discharge, he is liable therefor; and it is no defence that the officer had made a second attachment of the same property in favor of another creditor, on which the mort- gagee had been summoned, and that those pro- ceedings are still pending. Gouldingu. Hair, 133 78. See, also, Boynton v. Warren, 99 172. 255. On the other hand, if the mortgagee is defaulted, he cannot maintain an action against the officer for a conversion of the property by the levy of an execution thereupon. Flanagan v. Cutler, 121 96. [See, also, Chattel Mortgage, III, (2).] 256. Under the existing statute, the death of the debtor, before attached personal or real prop- erty is seized under an execution, dissolves the attachment, if administration upon his estate is granted upon an application made within a year after his death, and not otherwise. E. S., Ch. 90, § 105; G. 8., Ch. 123, § 45: P. S., Ch. 161, § 56. This provision applies, although the ATTACHMENT, IV, (2)— ATTEMPT TO COMMIT A CEIME. 97 debtor has mortgaged or conveyed the attached property. Bullard».Dame,(7P) 24 239; Kings- bury v. Baker, (17 P.) 34 429; Parsons v. Merrill, (5 Met.) 46 356; Wilmarth ■a. Eichmond, (11 C.) 65 463; Day •». Lamb, (6 G.) 72 523. 257. Under the act of 1783, the debtor's death did not dissolve an attachment, unless a com- mission of insolvency was issued. Rockwood v. Allen, 7 254; Grosvenor v. Gold, 9 209. 258. The act of congress of 1799, giving a preference to the United States in certain cases of insolvency, dissolved an attachment only where there had been some overt and notorious act, which the laws of the Commonwealth recog- nized as insolvency. Bartlet v. Prince, 9 431 ; affirmed, Prince v. Bartlett, 8 Oranch, 431. 259. An attachment of the undivided interest of one of two or more joint tenants or tenants in common, is not dissolved by a subsequent par- tition, to which the creditor is not a party, or an assignment of the interest of the debtor to his co-tenant. Procter v. Newhall, 17 81;McMechan v. Grilling, (9 P.) 26 537; Munroe v. Luke, (19 P.) 36 39. 260. A dissolution by consent of the plaintiff's attorney, without the plaintiff's knowledge or consent, protects one who purchases on the faith thereof. Moulton v. Bowker, 115 36. 261. Pinal judgment for the defendant dis- solves the attachment, although the plaintiff re- views the action; and so where he appeals, but fails to enter the appeal. Clap ».Bell, 4 99; Suydamr. Hugge- ford, (23 P.) 40 465. 262. If the plaintiff fails to take out execu- tion, within thirty days after he recovers judg- ment, the attachment is dissolved, and the offi- cer's liability to him comes to an end. Clap v. Bell, 4 '99; Bingham v. Pep- oon, 9 239; Howard v. Smith, (12 P.) 29 202; Baker v. Puller, (21 P.) 38 318; Parker t>. Warren, (2 A.) 84 187; Blake «. Kimball, 106 115; Stackpole n. Hilton, 121 449. [See, also, ante, II, (1) ; II, (3).] 263. It suffices, if the seizure of real prop- erty is within the thirty days, and the extent is duly completed, although the execution is re- turned afterwards. Heywood i>. Hildreth, 9 393; Hardy v. Safford, 132 332. 264. In reckoning the time, the day of the judgment is excluded; and if the thirty days expire on Sunday, that day is included. Portland Bk. v. Maine Bk., 11 204; Alderman v. Phelps, 15 225. 265. The rule applies, although the party was prevented from taking out execution by a writ of error from the U. S. supreme court Otis v. Warren, 16 53. 266. Where, upon the sale of attached prop- erty, the proceeds are put into the hands of the creditor, who, after judgment and execution, refuses to pay them to the sherifE within the thirty days, the attachment is dissolved; and a second attaching creditor, who has obtained VOL. 1—13 judgment and duly taken out execution, is en- titled to the money, and may sue the sheriff therefor. Morse n. Knowlton, (5 A.) 87 41. 267. A reference under a rule of court, with an agreement that the report shall be made at a subsequent term, and for judgment as of the term of the reference, which was done, dissolves the attachment within thirty days after the term of the reference, although the report was not made till afterwards. Heywood v. Hildreth, 9 393. 268. But an ordinary reference by rule of court does not affect the attachment. Seavey v. Beckler, 132 203. [See Arbitration, art. 55.] 269. Where land unincumbered by mortgage is attached, and is afterwards seized upon an execution issued upon a judgment, and the officer suspends proceedings by reason of a prior attachment, after the dissolution of which he gives notice of sale to the debtor, the levy, is deemed to have been made at the time of the notice; and if that is more than thirty days after the judgment, a purchaser after judgment and before notice takes title. Hardy 1>. Safford, 132 332. [That an arrest of the defendant does not dissolve an attachment, see ante, art. 328.] Attempt to commit a crime. [For rulings upon an attempt to commit a par- ticular crime, see under the title of that crime.] 1. The ancient rule was, that an attempt to commit murder was a felony, but since it has been deemed an aggravated misdemeanor. Comm. ». Barlow, 4 439. 2. Where, upon the face of an indictment, the facts charged show that there was an at- tempt to commit a crime punishable by law, the offence is well charged without specifying the crime. Comm. 11. Flynn, (3 C.) 57 529. [See Indictment, III, (6).] 3. Wherever the law makes one step towards the accomplishment of an unlawful object crim- inal, a person taking that step, with intent to accomplish the object, cannot protect himself, by showing_ that, by reason of some fact, un- known to him at the time, it could not be fully carried into effect in the particular instance. Comm. v. McDonald, (5 C.) 59 365; Comm. v. Starr, (4 A.) 86 301; Comm. 13. Jacobs, (9 A.) 91 274. 4. To attempt, is to make an effort to effect some object, to make a trial or experiment, to endeavor, to use exertion for some purpose. Comm. v. McDonald, (5 C.) 59 365. 5. Exciting, encouraging, and aiding a per- son to commit a misdemeanor, is, of itself, a misdemeanor. Comm. v. Harrington, (3 P.) 20 26. 6. To attempt to commit a willful and malic- ious crime, imports, ex tti termini, an intent to commit that crime. Comm. v. McLaughlin, 105 460. 7. Under G. S., Ch. 168, § 8; P. S., Ch. 210, § 8, one convicted of an attempt to commit a 98 ATTESTATION— ATTOKNEY AT LAW, I. crime, punishable by imprisonment in the state prison, may be sentenced to imprisonment in the state prison, although the offence is also punishable by fine or imprisonment in jail. In re McLaughlin, 107 225. Attempt to escape. [See Escape.] Attestation. [As to tbe limitation of an action upon an attested note, etc., and what is such an instrument within the statute, see Limitation of Action, IV, (1). As to the attestation of a will, see Will, I, (2). As to the attestation of other instruments, see the titles of those instruments respectively. As to proof of an in- strument by an attesting witness, see Evidence, V, (3).] Attorney at law. I. Authority. II. Rights, Duties, and Liabilities. III. Compensation, and Remedies there- fob. (1.) Action for compensation. (2.) Attorney's lien. [In this Commonwealth " there shall be no distinc- tion of counsellors and attorneys." G. S., Ch. 131, § 32; P. S., Ch. 159, § 37. For regulations respecting the admission of attorneyo, see Kules of 1884, XXXII to XXXVIII, 136 598,599. Now a woman, mar- ried or unmarried, may be admitted as an attorney. St. 1882, Ch. 129, abrogating In re Robinson, 131 376. l-'or rulings respecting the removal of an attor- ney, see In re Han-ull, (11 A.) 93 472. Tor rulings respecting attorneys in fact, see Agency; Deed. Generally, see Costs.] I. Authority. 1. The authority of an attorney employed in an action ceases on his client's death. Stebbins v. Palmer, (1 P.) 18 71; Gleason v. Dodd, (4 Met.) 45 333; Smiths. Sherman, (4 C.) 58 408; Kelley «. Riley, 106 339. 2. An authority to aid an insolvent debtor in compromising with his creditors, is evidence of authority to execute an agreement of com- promise. Doon «. Donaher, 113 151. 3. An attorney at law has authority, by virtue of his employment, as such, to do, in behalf of his clients, all acts, in or out of court, necessary or incidental to the prosecution and manage- ment of the suit, and which affect the remedy only, and not the cause of action. Lewis v. Sumner, (13 Met.) 54 269; Wieland v. White, 109 392; Moulton «. Bowker, 1 15 36. _ 4. Thus he has authority to release before judgment an attachment of real property. Moulton 1). Bowker, 115 36. 5. Or to arbitrate the cause, or refer it by rule of court. Buckland v. Conway, 16 396; Ev- erett «. Charlestown, (12 A.) 94 93. 6. Or to agree to delay execution. Wieland «. White, 109 392. 7. Or to sue out a writ of error. Grosvenor v. Danforth, 16 74. 8. Or to appeal, and recognize for his client to prosecute the appeal, and to become his surety. Adams v. Robinson, (1 P.) 18 461. 9. Or to receive seisin of land set off on ex- ecution. Pratt v. Putnam, 13 361. 10. Or to sue out a scire facias against bail. Dearborn v. Dearborn, 15 316. 11. Or to surrender one for whom his client is bail. Coolidge v. Cary, 14 115. 12. Or to demand property from an attaching officer. Pettis v. Kellogg, (7 C.) 61 456. 13. Or to execute a petition in insolvency against his client's debtor. O'Neil «. Glover, (5 G.) 71 144. 14. Or to demand payment from an admin- istrator, to found an action on his official bond. Heard v. Lodge, (20 P.) 37 53. 15. To discharge his client's judgment on re- ceipt of the full amount. Langdon «. Potter, 13 319. 16. An attorney has no authority, by virtue of his employment merely, to accept for his client, a mortgagor, a lease of the land from the mortgagee in possession. Hubbard v. Shaw, (12 A.) 94 120. 17. Or to release his client's claim on a per- son offered as a witness, when the law excluded an interested witness. Shores «. Caswell, (13 Met.) 54 413. 18. Or to discharge a judgment upon the re- ceipt of less than the full amount, or of a note of a third person. Langdon v. Potter, 13 319; Lewis v. Gamage, (1 P.) 18 347. 19. Or on receipt of the full amount, where his client has revoked his authority. Parker v. Downing, 13 465. 20. Where a plaintiff instructs his attorney to compromise on terms, coupled with a certain condition, and afterwards mentions the terms to the defendant, but not the condition, and the attorney compromises on those terms, disre- garding the condition, the defendant having no knowledge of the latter, the plaintiff is bound by the compromise. Peru S. & I. Co. v. Whipple F. & S. Co., 109 464. 21. A tender to an attorney, with whom a demand is left for collection, is a tender to his client. Mclniffe v. Wheelock, (1 G.) 67 600. 22. Where an attorney, in his own name, de- posits in a bank for collection a note received from his client, and the bank collects it, and, in good faith, credits the attorney with the amount, applies the sum in part payment of a debt due from him, and afterwards, he having become insolvent, settles with his assignees, the owner has no remedy against the bank. Wood v. Boylston Hat. Bk., 129 358. 23. Where an attorney, by his client's au- thority, employs counsel, and agrees to pay ATTORNEY AT LAW, I; II. 99 them out of the proceeds of the suit, and the proceeds have come to his hands, his client can- not, by notice, prevent his paying them. Aldrich i>. Brown, 103 527. 24. Oral agreements by attorneys in relation to a suit are not valid. Nye v. Old Colony R. R., 124 241. See, also, Saunders ». McCarthy, (8 A.) 90 42. 25. An attorney's written agreements and ad- missions respecting the suit bind his client. Lewis v. Sumner, (13 Met.) 54 269; Currier v. Silloway, (1 A.) 83 19. 26. Notice to the attorney, relating to any of the proceedings in the action, is notice to the party. Smith v. Bowditch, (7 P.) 24 137; Thayer v. Middlesex Ins. Co., (10 P.) 27 326. 27. An attorney may be retained to appear for a corporation by the proper officer, without a, vote of thi directors. Field v. Nantucket, (1 C.) 55 11. 28. A party may impeach a judgment ren- dered in another state against him, wherein the jurisdiction rests upon his alleged appearance by an attorney, by proof that he did not au- thorize the attorney to appear for him, notwith- standing recitals in the record. Hall v. Williams, (6 P.) 23 232; Glea- son v Dodd, (4 Met.) 45 333; "Watson «. N. E. Bk., (4 Met.) 45 343; Phelps v. Brewer, (9 C.) 63 390; "Washburn v. Pond, (2 A.) 84 474; Gilman v. Gilman, 126 26. 29. But in the case of a domestic judgment, the party must bring a writ of error. Brewer «. Holmes, (1 Met.) 42 288; Finneran v. Leonard, (7 A.) 89 54; Bodurtha v. Goodrich, (3 G ) 69 508. [See, also, Judgment, I, (1), ; Former Adjudi- cation; Estoppel, II, (1).] II. Rights, Duties, and Liabilities. [See, also, Champerty.] 30. An attorney or counsellor is not at lib- erty, and cannot, as a witness, be required, to disclose, without the consent of his client, any communication made to him, by the latter, with a view to obtain his opinion and advice, as at- torney or counsel, in relation to his legal rights, duties, or obligations, or to produce an instru- ment delivered to him professionally. Anonymous, 8 370; Foster v. Hall, (12 P.) 29 89; Hatton v. Robinson, (14 P.) 31 416; Barnes v. Harris, (7 C.) 61 576; Higbee «. Dresser, 103 523. [See, also, "Witness, V, (6.] 31 . The rule does not exclude the testimony of an attorney as to public fact, although the attor- ney would not have known the fact but for his employment. Comm. v. Bacon, 135 521. 32. The rule does not protect a conversation, not for the purpose of obtaining legal advice. Hatton v. Robinson, (14 P.) 31 416- Lynde ■». McGregor, (13 A.) 95 172. 33. Or disclosures to a student in the attor- ney's office. Barnes v. Harris, (7 C.) 61 576. 34. And a third person may testify to such a confidential communication, overheard by him. Hoy v. Morris, (13 G.) 79 519; Day v. Moore, (13 G.) 79 522. 35. The objection may be taken by a party who has; himself, called the attorney as a wit- ness upon other points. Montgomery v. Pickering, 116 227. 36. But the rule does not protect the party himself, who appears as a witness in his own behalf. "Woburn ». Henshaw, 101 193. 37. An attorney who assumes to act for one, without authority, is liable to the latter, but not to the other party. Adams ». Robinson, (1 P.) 18 461- Smith -r. Bowditch, (7 P. ) 24 137 ; Bick- nells. Dorion, (16 P.) 33 478. 38. But where an attorney conspires with his client, or with a magistrate, to commence a groundless prosecution against another, or to procure him to be illegally arrested, he is liable to the latter. Bicknell v. Dorion, (16 P.) 33 478- Sullivan v. Jones, (2 G.) 68 570. [See, also, as to an attorney's liability to the ad- verse party, for money received by him, Assumpsit, art. 116.] 39. An attorney is liable to an officer whom he employs to serve a writ, for the officer's fees and lawful necessary expenses. Tarbell v. Dickinson, (3 C.) 57 345. 40. And to an officer whom he agrees to in- demnify for committing a person; but he can- not bind his partner by such a promise. Rati- fication, however, will render both liable on the original promise. Marsh v. Gold, (2 P.) 19 285. 41. An attorney or counsel is not liable to an action for defamatory words, published in the course of judicial proceedings, unless they were impertinent or immaterial. McLaughlins. Cowley, 127 316; Mc- Laughlin ». Cowley, 131 70. [For the lability of an attorney or counsel for de- famatory statements in the course of an action, see Libel and Slander, IV, (4).] 42. An attorney who disobeys the lawful in- structions of his client, or fails to exercise ordi- nary care, skill, knowledge and diligence in the course of the business confided to him, is liable to his client for the loss occasioned thereby. Gilbert v. "Williams, 8 51; Dearborn v. Dearborn, 15 316; Varnum v. Mar- tin, (15 P.) 32 440; "Wilson v. Coffin, (2C.) 56 316. 43. And such negligence, or want of skill and knowledge, form a defence to his action against his client to recover for his services. Caverly v. McOwen, 123 574. 44. The attorney for a party to an action, re- ferred under a rule of court, is liable to an action by the adverse party, for conspiring with one of the arbitrators, to obtain an unjust award in favor of his client, although the arbitrator is not liable. Hoosac Tunnel, etc., Co. v. O'Brien 137 424. 45. An attorney who indorses a writ is liable, although a rule of court prohibited him from so doing. Morrill v. Lamson, 138 115. 100 ATTORNEY AT LAW, III, (1), (2)— ATTORNEY-GENERAL. III. Compensation, and Remedies therefor. [See, also. Costs.] (1.) Action for compensation. 46. An attorney, or counsel, employed as such in an action, is entitled to a reasonable compensation without any special contract therefor. Aldrich v. Brown, 103 527; Perry «. Lord, 111 504. 47. Upon the question of the value of the services of the plaintiff's attorney, in an action which was settled, the opinion of the attorney for the defendant, that the plaintiff had no cause of action, is competent. Aldrich «. Brown, 103 527. 48. Although an attorney makes specific charges for his most prominent and important services, that does not preclude him from re- covering for other services, not included in such specific charges, by commissions or the like, if his services result in the collection of money, although his client receives it from the debtor. Pierce v. Parker, 121 403. 49. Where two attorneys, who are partners, dissolve their partnership, and one continues to manage a suit, then pending, in which both were originally employed, an action may be maintained by them jointly. Page v. Wolcott, (15 G.) 81 536. 50. A party is liable for the services of coun- sel, who acted as such in his presence, and with- out objection by him, under a retainer from the attorney of record, although he had a secret agreement with the attorney, that the latter would pay for the counsel's services. Brigham v. Poster, (7 A.) 89 419. [For the defence to an action for an attorney's compensation on the ground of want of skill, etc., see, ante, art. 43.] 51. An attorney's right of action for his ser- vices in conducting a suit, does not accrue until the final entry of judgment therein, unless the contract is sooner terminated, for good and suf- ficient cause, and upon reasonable notice. Eliot v. Lawton, (7 A.) 89 274. 52. Where an agreement has been made by a person, to pay an attorney for his services a cer- tain sum, when all pending suits in favor of A for a specified cause of action, and all suits which A may bring thereupon, are terminated in favor of the client, and the then pending suits have been so terminated, and.the administrator of A has fully performed his duties, except ren- dering his account, and does not intend to bring any more suits, the attorney is entitled to re- cover the stipulated sum, although the statute of limitations has not run. Hubbard «. Woodbury, (7 A.) 89 422. 53. Under the act of congress, an attorney who has received the prescribed fee for services in procuring a pension, cannot maintain an ac- tion against a person, other than the pensioner, upon his promise to pay the reasonable value of his services. Wolcott ». Prissell, 134= 1. (2.) Attorney's lien. 54. At common law, an attorney has no lien on the cause for services or disbursements, either before or after judgment. Getchell v. Clark, 5 309; Baker v. Cook, 11 236; Simmons v. Almy, 103 33. 55. The lien given by the statute, R. S., Ch. 88, § 28; G. S., Ch. 121, § 37; P. S., Ch. 159, § 42, may be enforced by an action on the judg- ment in the client's name, and is not discharged by a release of the judgment by the client. Woods v. Verry, (4 G.) 70 357. 56. The statutory lien does not include coun- sel fees, but only taxable costs. Ocean Ins. Co. v. Rider, (22 P.) 39 210. 57. in the absence of a special contract, the attorney has not a lien, before judgment, which prevents the client from settling the action with the other party, without the attorney's knowl- edge or consent. fcimmons ». Almy, 103 33. 58. Qu., whether the rule of law, which gives an attorney a lien, in some cases, upon his cli- ent's papers in his hands, prevails in this Com- monwealth. White v. Harlow, (5 G.) 71 463; Simmons v. Almy, 103 33. 59. He has no such lien, if he voluntarily withdraws from the suit, while it is pending. White v. Harlow, (5 G.) 71 463. 60. The attorney's lien cannot be affected by setting off one execution against another, be- tween the same parties. Baker v. Cook, 11 236; Dunklee v. Locke, 13 525; Ocean Ins. Co. «. Rider, (22 P.) 39 210. 61. Where, in an action upon an usurious note, the defendant had judgment for his costs, and the plaintiff for the amount of the note, less thrice the amount of interest taken, the court, on the plaintiff's motion for an offset of the costs against the damages, allowed such an offset only to the amount of costs remaining, after de- ducting the fees and disbursements of the de- fendant's attorney. Little v. Rogers, (2 Met.) 43 478. 62. Under the act of 1810, the lien continued, although the attorney had received on the judg- ment, and paid his client, more than enough to satisfy his fees and disbursements. Baker «.Cook, 11 236. 63. The attorney's lien will hold against a bill, filed by a creditor of his client, to obtain the "payment of the judgment to the plaintiff in equity. Thayer v. Daniels, 113 129. Attorney-general. [See, also, Equity Jurisdiction, I; Informa- tion.] 1. The attorney-general may file an informa- tion at common law, in the name of the Com- monwealth, for the usurpation of an office, at his own discretion, without leave of the court; and the mention of a relator is mere surplusage. Comm. v. Fowler, 10 290; Goddard v. Smithett, (3 G.) ,69 116; Comm. v. Allen, 128 308. 2. A private person has no power to do so, even by leave of the court, except as otherwise prescribed by statute. Goddard®. Smithett, (3 G.) 69 116. [See, also, Quo Warranto.] ATTORNEY-GENERAL— AUCTION AND AUCTIONEER. 101 3. A writ of mandamus lies upon the appli- cation of the attorney-general, to enforce a pub- lic duty, as where the common council of a city illegally allows a ferry to be run free of toll. Qtt., whether a private person may not also ask for the writ. Atty.-Gen'l «. Lawrence, 111 90; Atty.-Gen'l v. Boston, 123 460. 4. An information to dissolve a corporation may be prosecuted, either under the authority of the legislature, or by the attorney-general in behalf of the Commonwealth. Comm. v. Union Ins. Co., 5 230; Goddard v. Smithett, (3 G.) 69 116. [See, also, Corporation, IX ; Information.] 5. Where no misapplication of funds, held upon a public trust, and no nuisance to the public are shown, the proper remedy to compel the performance of a duty, imposed by statute upon a corporation, is not by information in equity, but by mandamus at common law. Atty.-Gen'l v. Salem, 103 138; as explained in Atty.-Gen'l v. Boston, 123 460. 6. Where a corporation or an individual does acts, without right, which destroy or impair rights and privileges under the control and care of the Commonwealth, this is a public nuisance, which the attorney-general may restrain and prevent by information in equity. Atty.-Gen'l v. Cambridge, (16 G.) 82 247; Atty.-Gen'l v. Jamaica Pond Aque- duct, 133 361. 7. A public nuisance may also be restrained upon an information by the attorney -general, or other law officer represen'ing the government, ex officio, or upon the relation of a private per- son having an interest in the subject matter of the bill, and whose private rights may be pro- tected by the decree. Dist. Atty. v. Lynn & B. R. R., (16 G.) 82 242; Atty.-Gen'l s. Boston Wharf Co., (12 G.) 78 553. 8. The court has no jurisdiction of an infor- mation in equity by thea'torney-general against a private trading corporation, whose proceed- ings are not shown to have injured or endan- gered any public or private rights, and are objected to solely on the ground that they are not authorized by the act of incorporation, and are therefore against public policy. Atty.-Gen'l v. Tudor, Ice Co., 104 239. 9. The only cases, in which informations in equity, in the name of the attorney-general, have been sustained by this court, are (1) of public nuisances, which affect or endanger the public safety or convenience, and require im- mediate judicial interposition; and (2) of trusts for charitable purposes, where the beneficiaries are so numerous or indefinite, that the breach of trust'cannot be effectively redressed, except by suit in behalf of the public. Atty.-Gen'l «. Tudor Ice Co., 104 239. 10. As to trusts for charitable purposes, see Parker v. May, (5 C.) 59 336; Jack- son v. Phillips, (14 A.) 96 539; Atty.- Gen'l v. Garrison, lOl 223. [See, also, Charity.] 11. The attorney-general may also maintain such an information, to enforce a stipulation as to keeping open a passage-way, contained in a bond for a deed of land, given by the Common- wealth. Atty.-Gen'l ». Williams, 140 329. 12. The attorney-general) when present, , may conduct any criminal prosecution. But another counsel may, at his request, be admitted 10 aid him in the prosecution, under his direction and control, without compensation, or other motive except regard for the public good. But, semble. only two counsel can appear for the Common wealth. Comm. v. Knapp, (9 P.) 26 496 Comm. ■!). Knapp, (10 P.) 27 477; Comm «. luck, (20 P.) 37 356; Comm. v Webster, (5 C.) 59 295; Comm. « Gibbs, (4 G.) 70 146. 13. The power to enter a nolle prosequi rests with the attorney-general, and the court cannot interfere with the exercise thereof. Comm. v. Wheeler, 2 172; Comm. ». Andrews, 2 409; Comm. v. Tuck, (20 P.) 37 356. 14. The rule that the defendant cannot plead in abatement, after a general imparlance, ap- plies to an action brought by the attorney- general. Martin ». Comm., 1 347. 15. After the attorney-general has appeared in the common pleas, and authorized the fur- ther prosecution of an action to recover a pen- alty, there brought by appeal, the defendant cannot object that it was brought in the police court .without the authority of a public prose- cutor. Comm. v. Conn. R. R. R., (15 G.) 81 447. [See, also. District Attorney.] Attorney in fact. [See Agency ; Contract, I ; Deed, I, (1) ; I, (3).] Auction and auctioneer. [As to the memorandum made by an auctioneer within the statute of frauds, see Statute or Frauds, IV, (3).] 1. An auctioneer's license, if granted by the selectmen of a town, must be granted at a meet- ing where a majority were present, and all were notified. Clark v. Cushman, 5 505. 2. In an action for a penalty for selling his own goods after sunset, the defendant is not es- topped from denying that he was duly licensed. Clark v. Cushman, 5 505. 3. An auctioneer's illegal act in selling land without license, does not affect the conveyance to a purchaser, who was ignorant that he had no license. Williston v. Morse, (10 Met.) 51 17; Larned v. Andrews, 106 435; Learned v. Geer, 139 31. 4. A public officer, or a mortgagee executing a power of sale, may adjourn the sale from time to time, without the intervention of a licensed auctioneer, the sale itself being made by such, an auctioneer. Hosmer v. Sargent, (8 A.) 90 97 102 AUCTION AND AUCTIONEEE— AUDITA QUEEELA. 5. An auctioneer cannot delegate his power to sell by auction; but be may employ another to use the hammer and make the outcry, under his direction and supervision; and his occasional absence during the sale will not subject his as- sistant to a penalty. Whether such acts are a cover to evade the statute, is for the jury. Oomm. v. Harnden, (19 P.) 36 482. 6. Wkere two or more parcels of real or per- sonal property are sold separately, but at the same sale, the rights and liabilities of the auc- tioneer, the owner, and the purchaser, are the same, as if each was a separate sale; but if part are sold without the auctioneer's county, he can collect from the owner the auction duty upon that sale. Robinson v. Green, (3 Met.) 44 159; Wells v. Day, 124 38. 7. A constable, who sells goods at auction, under the pretence of satisfying an execution, when he has none, is not liable to the penalty for fraud or deceit in relation to a sale by auc- tion. Jordan v. Smith, (19 P.) 36 287. 8. Where the terms of an auction sale re- quire a cash payment, if the auctioneer takes a check of the purchaser, which is not good, the vendor may repudiate the sale. Broughton v. Silloway, 114 71. 9. But where the auctioneer agreed to advance the deposit to the purchaser, and told the ven- dor that the purchaser had paid it, and it was ready for him, the auctioneer is liable to the vendor, as he would have been if the money had been paid; and the vendor is bound. Miihlig v. Fiske, 131 110. 10. An auctioneer who sells and delivers goods as the owner's agent, upon a condition which is not fulfilled, may maintain replevin for the goods. Tyler v. Freeman, (3 C.) 57 261. 11. An auctioneer, employed to sell real property, on terms contemplating payment of a deposit to him, at the time of the auction, may maintain an action against the buyer for the deposit, wherever a separate action for that part of the purchase money is needful. Thompson «., Kelly, 101 291. 12. And if such a deposit is made, and the sale is afterward abandoned by mutual consent, and the purchaser notifies the auctioneer not to pay the deposit to the vendor, and he does not so pay it, the' vendor is not liable therefor. But it' the sale is not completed, through the ven- dor's fault, the latter is liable for the deposit, although he has not received it. Robinson e. Trofitter, (11 A.) 93 339; Teaffe -o. Simmons, (11 A.) 93- 342. 13. Where land is thus sold, on terms that the deposit is to be forfeited, if the property is not taken, but the forfeiture is not to release the purchaser, the deposit may be considered by the jury in reduction of damages. Curtis v. Aspinwall, 114 187. 14. An agreement between two or more, that one only shall bid at an auction sale, and will purchase for the benefit of all, is illegal, if made to prevent competition and depress the price; but if made for an honest and reasonable purpose, it is valid. Phippen?). Stickney, (3 Met.) 44 384. 15. By-bidding at an auction sale of land in lots, advertised as positive, will render the sale voidable by a purchaser influenced thereby, although his lot was one upon which there was. no such by-bidding; and this, although the seller had knowledge that by-bidding was instigated by the auctioneer. But the sale is valid, if the purchaser was not sc influenced. Curtis ». Aspinwall, 114 187. 16. A married woman, who has signed a written agreement for the purchase of land sold to her at auction, cannot defend, on the ground that she signed the agreement without knowing its contents; and that the plaintiff, the vendor, asked her to bid as an underbidder, to aid him in making the sales, and said to her that she would not be bound by the agreement. Faucett v. Currier, 109 79; Faucett v. Currier, 115 20. 17. An auctioneer has no power to bind an administrator personally, by a warranty of the condition of the goods of the intestate. Blood «. French, (9 G.) 75 197. 18. Qu., whether, upon an ordinary sale of goods, he has such power t without express au- thority from his principal. Upton v. Suffolk Co. Mills, (11 C.) 65 586; Blood «. French, (9 G.) 75 197. 19. Where an auctioneer makes a statement, as an inducement to purchase, which is not in the advertisement, and it appears to have been, merely the expression of an opinion, it is not si guaranty. Woodward v. Boston, 115 81. 20. An advertisement of a sale of real prop- erty, generally expresses a contract of the par- ties; but where a material error, in the adver- tisement, was made in good faith, and was corrected and explained, when the property was offered for bids, the sale is binding, although the purchaser was not present when the ex- planation was made, and relied wholly upon the advertisement. Thompson «. Kelly, 101 291; Wood- ward v. Boston, 115 81. 21. A bill in equity will not lie. by a person who was the highest bidder, at an auction sale of land, to compel the auctioneer to sign a memorandum of the sale. Marcus v. Boston, 136 350. 22. An auctioneer, who sells goods as such, cannot show title in himself, in defence to an action for the proceeds. Osgood *. Nichols, (5 G.) 71 420. 23. Where an auctioneer, who had guaran- tied sales, sold a chattel, on condition that title should not pass without payment, and then set- tled with the seller, it was held, that he might maintain trover against one, claiming title by sale from the purchaser. Riddle v. Coburn, (8 G.) 74 241. Audita querela. 1. The writ of audita querela is a concurrent remedy with others, as in cases where redress may be had by summary proceedings on mo- tion. It lies where legal process has been abused, and injuriously applied to purposes ot fraud and oppression. Lovejoy ■». Webber, 10 1 01. 2. It is the commencement of a suit, wherein the plaintiff asks to be relieved from a judg- AUDITA QUEEELA— AUDITOE. 103 ment or execution, or both, by reason of some matter affecting their validity, which he has not had an opportunity to plead. Poss v. Witham, (9 1.) 91 572. 3. Although the writ is authorized by statute, the cases where it lies must be determined by the common law. Lovejoy v. "Webber, 10 101; Brack- ett i). "Winslow, 17 153; Coffin a. Ewer, (5 Met.) 46 228; Dingman v. Myers, (13 G.) 79 1. 4. It lies for the irregular issuing of an exe- cution, upon a regular judgment. Johnson v. Harvey, 4 483; Skillings 1>. Coolidge, 14 43; Gridley v. Harra- den, 14 496;- Dingman v, Myers, (13 G.) 79 1. 5. Or where an execution is levied upon the property of one of two joint debtors, after it is satisfied by the other, although the levy is for the latter's benefit. Hammatt v. "Wyman, 9 138; Brackett s. Winslow, 17 153. 6. But not where the payment was made by a stranger to the judgment, upon an agreement that it should not be deemed a satisfaction. Kimball v. Parker, (7 Met.) 48 63. 7. It lies where a judgment debtor is com- mitted upon execution, after the judgment cred- itor's death. Comm. v. Whitney, (10 P.) 27 434. 8. Or where he is imprisoned under an ex- ecution, stating an erroneous date of the judg- ment, so that an excessive amount of interest is collectable. Stone i). Chamberlain, (7 G.) 73 206. 9. Or where an execution upon a judgment against a non-resident, obtained upon attach- ment, is issued without filing the statutory bond, although it has been levied on the judgment debtor's real property, and returned satisfied. Dingman v. Myers, (13 G.) 79 1. 10. It will not lie where the party has had an opportunity to avail himself of the defence or objection, as where the matter might have in- terposed in the action or other proceeding. Thatcher v. Gammon, 12 268; Faxon ■v. Baxter, (11 C.) 65 35; Whiter Clapp (8 A.) 90 283; Barkers Walsh, (14 A) 96 172; MerritU\ Marshall, 100 244. 11. A judgment debtor, who, on being arrested under an execution, procures his enlargement, upon his promise to surrender himself again at a future day, and does so, cannot have this writ, although the plaintiff could not have retaken him. Little v. Newburyport Bk., 14 443. 12. In a proper case, as where an irregular execution has been satisfied, or the party has been imprisoned under it, he may have dam- ages in his audita querela. Foss v. Witham, (9 A.) 91 572. 13. But not where the officer was a trespasser, so that false imprisonment would lie. Coffin v. Ewer, (5 Met.) 46 ' 228. 14. An audita querela will not lie to correct the taxation of costs. Goodrich v. Willard, (11 G.) 77 380. 15. Upon audita querela the defendant is not an actor ^ and no proceedings can be had in it for his benefit; and an order to bring forward the original action on the docket, and strike out the entry of judgment, etc. , is erroneous. Poss !). Witham, (9 A.) 91 572. 16. Where an audita querela is improperly described in the declaration an action of tort, the plaintiff was allowed to amend by striking out those words; but, under the circumstances, the court allowed the amendment, on condition that he would take judgment for nominal ges. Stone v. Chamberlain, (7 G.) 73 206. Auditor : assessor of damages. 1. The term auditor designates an officer, either at law or in equity, assigned to state the items of debt and credit between the parties, and exhibit the balance. Where the object is the assessment of damages, to call such an offi- cer an assessor does not invalidate an order for execution, for the sum reported by him. Whitwell i). Willard, (1 Met.) 42 216; Fisk v. Gray, IOO 191. 2. The appointment is discretionary, and a refusal to appoint is not ground for a new trial. Pierce «. Thompson, (6 P.) 23 193. 3. The auditor has no power to award costs. His power and duty are limited to stating the accounts, with vouchers tending to prove, or remarks tending to explain, the items. Lyman v. Warren, 12 412; Pisk v. Gray, IOO 191. 4. For the definition of "accounts" and " vouchers," as used in the statute, see Whitwell e. Willard, (1 Met.) 42 216. 5. The defendant's consent to the appoint- ment of an auditor is not a waiver of his objec- tion to the plaintiff's right to sue. Willard «. Fiske, (2 P.) 19 540. 6. The objection that a cause is not one which is referable to an auditor by statute, cannot be first taken when his report is presented. Kimball ». Amesbury Bap. Soc, (2 G.) 68 517. 7. An auditor, for the purpose of passing upon the matter referred to him, must construe a contract, or decide any other matter of law, involved in his determination. His views upon the law are subject to revision by the court, and his findings of fact to revision by the jury. Peru Co. v. Whipple M. Co., 109 464; Holmes v. Hunt, 122 505; Coker v. Ropes, 125 577. 8. An auditor has no power to decide upon matters of defence which go to bar the action, unless the parties consent; but he has full power to examine, take testimony upon, and report upon, all matters re ating to the accounts and vouchers, and included in the order of refer- ence; although the evidence or report may inci- dentally affect, or even pass directly upon, the cause of action or defence upon the merits. Comm. v. Cambridge, (4 Met.) 45 35; Jones ». Stevens, (5 Met.) 46 373; Barnard «. Stevens, (11 Met.) 52 297; Bradley v. Clark, (1 C.) 55 293; Locke v. Bennett, (7 C.) 61 445; Gould v. Norfolk Lead Co., (9 C.) 63 338; Pad- dock p. Comm'l Ins. Co., 104 521; Lowe v. Pimental, 115 44; Corbett v. Greenlaw, 117 167; Holmes v. Hunt, 122 505. 104 AUDITOR 9. At the trial of the cause the court may re- quire the auditor's report to be read, although neither party wishes to offer it in evidence. Clark v. Fletcher, (1 A.) 83 53. 10. If either party introduces it, he is bound to read the whole, but he is not thereby con- cluded as to the matters against him. Fogg «. Farr, (16 G.) 82 396. 11. It cannot be excluded, because the au- ditor appointed a time for the hearing, when counsel for one of the parties could not attend; that is ground of recommitment. Cheshire ». Howland, (13 G.) 79 321. 12. The statute now makes the report prima facie evidence before the jury, " upon such matters only as are expressly embraced in the order." G. S., Ch. 121, § 46; P. S., Ch. 159, § 51. See, as to the effect of the successive statutes on this subject, Allen v. Hawks, (11 P.) 28 359; Laza- rus v. Coram. Ins. Co., (19 P.) 36 81; Jones ». Stevens, (5 Met.) 46 373; Taun- ton I. Co. v. Richmond, (8 Met.) 49 434; Eich v. Jones, (9 C.) 63 329; Leathe v. Bullard, (8 G.) 74 545; Crafts v. Crafts, (13 G.) 79 360; Morgan v. Morse, (13 G.) 79 150; Fair «. Manhattan Ins. Co., 112 320; Lowe v. Pimental, 115 44; Ruhe v. Burnell, 121 450. 13. The statute is constitutional. Holmes v. Hunt, 122 505. 14. So much of the auditor's report, as relates to a matter not distinctly committed to him, cannot be considered by the jury; but the court may allow the admissible part to be received, and reject the residue, or it may reject the en- tire report, or recommit it. Jones v. Stevens, (5 Met.) 46 373; Flint v. Hubbard, (1 A.) 83 252. 15. Where three auditors are appointed, the majority report only is evidence; the minority report is inadmissible. Lincoln v. Taunton Copper Man. Co., (9 A.) 91 181. 16. A request to instruct the jury that the auditor's report "is not entitled to great weight," is properly refused. Clement v. British Am. Ass. Co., 141 298. 17. It is not necessary to file exceptions, to enable a party to impeach the report. Allen v. Hawks, (11 P.) 28 359. 18. Witnesses, examined by the auditor, may be re-examined before the jury, although the report shows that the auditor rejected the evi- dence. Allen v. Hawks, (11 P.) 28 359; Ken- dall v. Weaver, (1 A.) 83 277; Somers v. Wright, 114 171. 19. The findings of the report may be im- peached, by matters contained therein, as where the auditor reports the evidence, or the jury decide against his conclusion, upon his state- ment of the facts, from which he draws it. Comm. v. Cambridge, (4 Met.) 45 35; Taunton I. Co. v. Richmond, (8 Met.) 49 434; Bradford v. Stevens, (10 G.) 76 379; Peru I. Co. v. Whipple M. Co., 109 464; Blackmgton v. Johnson, 126 21- Ham- ilton v. Boston P. Soc, 126 407; Em- erson v. Patch, 129 299 20. The language of an auditor's report is not to be subjected to refined criticism; if it im- ports that an essential fact was found, an ex- press finding thereof is not requisite. McMahon «. O'Connor, 137 216. 21. A finding, in the report, is not invalid- ated, by the auditor stating that it is impossible to determine the question with anything like certainty. Paddock v. Com'l Ins. Co., 104 521. 22. But it is not prima facie evidence, where it shows on its face that the auditor's conclu- sion is inconsistent, as matter of law, with other facts therein stated. Newell v. Chesley, 122 522. 23. And the court may so direct the jury. Ropes v. Lane, (9 A.) 91 502; Mor- rill v. Keyes, (14 A.) 96 222. 24. Upon a case reserved for the full court, upon an auditor's report, his findings will not be reversed, unless, as matter of law, the facts found by him require it. Peru I. Co. v. Whipple M. Co., 109 464. 25. The same rule holds where the findings are revised upon exceptions, and the auditor's or assessor's report of the evidence. Paddock v. Comm'l Ins. Co., 104 521; McKim e. Blake, 139 593. 26. An auditor's report is competent evi- dence, although an objection is taken before him that the proof is not admissible under the answer, if the answer has since been amended by leave of the court. Washington Co. Ins. Co. v. Dawes, (6G.) 72 376. 27. The same rule holds with respect to a declaration. Rich v. Jones, (9 C.) 63 329; Looney v. Looney, 116 283. 28. A report, showing damage to the plaintiff, but that it has not accrued within six years, may be read to the jury, although the statute of limitations has not been pleaded. Lincoln v. Taunton Copper M. Co., (9 A.) 91 181. 29. In an action for the conversion of a chattel, the plaintiff is not precluded from giving evidence as to the value, by his failure to offer any evidence on this point before the auditor. Fletcher v. Powers, 131 333. 30. Where books are produced on the trial, supported by the testimony of a bookkeeper, and the parties agree to refer them to the au- ditor, who makes his report; and on the second trial the books are again introduced, supported by other testimony; the auditor's report, and his testimony to the state of the books, are also admissible. Holbrook v. Jackson, (7 C.) 61 136. 31. Upon a trial by the court, without a jury, where the auditor's report is the only evi- dence upon the trial, judgment is properly rendered for the amount reported by him. Eagan v. Luby, 133 543. 32. Where, upon the facts reported by the auditor, the defendant is clearly liable, the jury are properly instructed, that, in the absence ot other evidence, they are bound to find for the plaintiff. ' Bradford v. Stevens, (10 G.) 76 379; AUDITOK— AWAED. 105 Star Glass Co. ®. Morey, 108 570; Nolan v. Collins, 112 12; Lyons ®. Ricker, 128 452; Ford ®. Burchard, 130 434. 33. Although the auditor's report is prima facie evidence of the facts reported, it does not change the burden of proof; and where the re- port is in favor of the party, upon whom the burden rests, but does not state facts enough to fully make out his cause of action or defence, he must supply it with the necessary additional testimony. Bradford ®. Stevens, (10 G.) 76 379; Morgan®. Morse, (13 G.) 79 150; Phillips «. Cornell, 133 546; Lonergan®. Peck, 136 361. 34. If the papers, which come before the court on appeal, are copies of the pleadings, the au- ditor's report, and the judgment, the auditor's re- port is not properly before the court, unless it ap- pears that it was made part of the record below. Davis ®. Gay, 141 531. 35. A hearing before an auditor is not a trial, within the meaning of the U. S. statute, re- lating to the removal of causes before trial. Stone ®. Sargent, 129 503. 36. An auditor is not bound to state in his report the grounds of his conclusions. Newell ®. Chesley, 122 522. 37. The testimony of an auditor is not admis- sible upon the trial, to control or affect his report. Monk®. Beal, (2 A.) 84 585; Packard ®. Reynolds, 100 153. 38. But a party may, to affect the weight of the report, call a witness to prove that he did not testify before the auditor. Kendall ®. Weaver, (1 A.) 83 277; Fair ®. Manhattan Ins. Co., 112 320. 39. A motion to recommit an auditor's report is addressed to the discretion of the court, and its decision thereupon cannot be reviewed on exception. Kendall «. Weaver, (1 A.) 83 277; Packard ®. Reynolds, lOO 153; Butter- worth ii. Western Assurance Co., 132 489. 40. The auditor's findings, upon questions pertaining to the admission of testimony, may be reviewed upon a motion to recommit. Kendall «. May, (10 A.) 92 59. See, also, Paddock ®. Comm'l Ins. Co 104 521. 41. Any objection to a report for ambiguity or incompleteness, or for the admission of im- proper testimony, or the like, must be taken upon a motion to recommit, and cannot be taken at the trial. Allen ®. Hawks, (11 P.) 28 359; Jones ®. Stevens, (5 Met.) 46 373- Leathe ®. Bullard, (8 G.) 74 545; Fair®. Manhat- tanlns. Co., 112 320; Newell®. Chesley 122 522;Briggs®. Gilman, 127 530. 42. Objections to an auditor's report that he had exceeded his powers, ought to be taken by motion to recommit; and if taken at the trial, no exception lies to. the admission of the report, if it was accompanied with proper instructions to the jury, as to the use and effect of the report as evidence. Fair®. Manhattan Ins. Co., 112 320. 43. An auditor's report, in the court below may be recommitted by the superior court, in a Vol. 1—14 cause brought there by appeal, and the, new report used as evidence on the trial. Webber ®. Orne, (15 G.) 81 351. 44. An auditor or assessor, to whom a report has been recommitted, may proceed without notice or rehearing. Gardner ®. Field, (5 G.) 7 1 600; Web- ber ®. Orne, (15 G.) 81 351. 45. Where the report has been recommitted to hear evidence and arguments by the defend- ant, the auditor may hear further evidence and arguments by the plaintiff. Shearman v. Akins, (4 P.) 21 283. 46. An auditor, after making up his report and delivering it to the parties, may re-examine account books, re-audit the accounts, and make a second report, without a recommittal; and it is not a valid objection that the party, against whom the report is made, was not informed of the re-examination of the books. And such party, having appeared before the auditor, on the same hearing, and made no objection then, cannot object that the auditor was biased by reason of his first report. Lazarusu.Comm.Ins.Co.,(19P.) 36 81. 47. Where the plaintiff objects to the appoint- ment of an auditor, on account of his inability to pay the fees, and the defendant undertakes to pay them, whereupon an auditor is appointed, and the defendant pays the fees, and recovers judgment, he cannot tax the fees in his costs. Lincoln ®. Taunton Copper M. Co., (13 A.) 95 276. 48. An appeal does not lie from a judgment for the plaintiff, upon an auditor's report, which has not been submitted to a jury, as such judg- ment is irregular, and not upon a matter of law apparent upon the record. Chapman ®. Briggs Iron Co., (6 G.) 72 330; Hutchinson ®. Tucker, 121 402. [See, also, Insurance Company, II, (3) ; and for similar cases, Arbitration, II.] Auditor of accounts. 1. The act, St. 1879, Ch. 256, § 1; P. S., Ch. 23, § 34, as to auditing accounts against Suffolk county, does not deprive a creditor of his action against the county, at least after the auditor and county commissioners have refused to allow the claim. Wheelock ®. Suffolk Co. Auditor, 130 486. Auditor of the Commonwealth. [See Opinion of the Justices, (13 A.) 95 593.] Autrefois acquit ; autrefois con- vict. [See Former Adjudication, I.] Average. [See Insurance, V, (13); V, (13); Shipping, III, (4).] Award. [See Arbitration; International Award.] 106 BAIL IN- AN ACTION, I; II, (1). B. Baggage. [See Boarding House; Carrier, II, (4); Inn and Inn-Keeper.] Bail in an action. I. Giving Bail; Liability of Bail. II. Rights and Remedies op Bail. <1.) General rules. (2.) Surrender of principal. (3.) Discharge in other modes; failure to charge. [As to bail for the prison limits, see, also, Jail. As to an officer's liability for taking insufficient bail, see Office and Officer, II, (2). Generally, see, also. Arrest; Eecognizance ; Scire Facias ; Surety.] I. Giving Bail; Liability of Bail. 1. If excessive bail is required, the court will, upon habeas corpus, discharge the defend- ant, upon giving reasonable bail. (G. S., Ch. 144, § 26; P. S., Ch. 285, § 24.) Jones v. Kelly, 17 116. 2. A bail bond is matter of record, only for the purpose of enforcing it by scire facias; and the misrecital in the bail bond of the place where the writ is returnable, is not ground for dismissing the action. Flagg v. Jones, 113 325. 3. For the same reason, the execution of the bond is matter in pais, and may be traversed. Champion v. Noyes, 2 481; Bean v. Parker, 17 591; Crane v. Keating, (13 P.) 30 339; Heustis ». Rivers, 103 398. 4. The surety in a bail bond is liable in scire facias thereupon, if the writ is identified by a date, the court, the plaintiff's full name, and the defendant's surname, although the latter's Christian name, as expressed in the bond, was not in the writ. Danker v. Atwood, 1,19 146. 5. A bail bond is not void, because it misre- cites the nature of the action; nor because it states that the penalty is to be paid to a person, other than the sheriff, where the parties ac- knowledge themselves to be bound to the sheriff. Glezen v. Rood, (2 Met.) 43 490; Bull «. Clarke, (2 Met.) 43 587; Rowland v. Seymour, (2 Met.) 43 590. 6. A bail bond taken to the deputy sheriff, or to the sheriff of the wrong county, is void. omith t>. Adams, (12 Met.) 53 564; Conant v. Sheldon, (4 G.) 70 300. 7. A bail bond, not executed by the principal, is void as to the sureties. Bean v. Parker, 17 591. 8. Under the former statute, a bail bond pro- viding for a surrender within ninety days, was good. Barker v. Ryan, (1 A.) 83 72. 9. So was a bail bond to a partnership by the firm name, although both partners' Christian names were erroneously given. Colburn v. Downes, 10 20. 10. Before the present statute, a bail bond with one surety was good, although he resided out of the Commonwealth; but the sheriff was liable for taking it. Long v. Billings, 9 479; Rice ». Hos- mer, 12 127; Lane®. Smith, (2 P.) 19 281; Glezen e. Rood, (2 Met.) 43 490. 11. The only remedy now upon a bail bond is scire facias, which cannot be maintained, un- less served within one year after final judgment against the principal, although the bail was absent from the State during the whole year. Lane ». Smith, (2 P.) 19 281; McRae v. Mattoon, (10 P.) 27 49; Crane «. Kea- ting, (13 P.) 30 339; Niles e. Drake, (17 P.) 34 516; Gale «. Boyle, (6 C.) 60 138; Gass «. Bean, (5 G.) 71 397. 12. But an action of debt or a scire facias will not lie upon a bail bond, taken out of the State. McRae v. Mattoon, (10 P.) 27 49. 13. By final judgment is meant the first judg- ment on which execution could issue, not a judgment on review. Swett ». Sullivan, 7 342. 14. The sureties' liability is limited by the penalty of the bond, with interest from the re- turn of non est inventus. Heustis ». Rivers, 103 398. 15. It suffices if the scire facias alleges sub- stantially that the defendants became bail. Bull v. Clarke, (2 Met.) 43 587. 16. The executor of a deceased surety must not be joined with the survivor, in scire facias on a bail bond, but the plaintiff may amend by striking out his name. Niles v. Drake, (17 P.) 34 516. 17. Bail for the prison liberties are not liable for failure to surrender their principal, where he is confined in the State lunatic hospital, under a commitment from the judge of probate. Puller v. Davis, (1 G.) 67 612. 18. Bail cannot deny their principal's liability to arrest, as if he was a IT. S. or foreign consul or minister, unless the fact, on which the privi- lege rests, appears of record. Hall «. Young, (3 P.) 20 80; Spring- field CardM. Co. v. West, (1 C.) 55 388. II. Bights and Remedies of Bail. (1.) General Rules. 19. In legal contemplation, the principal is always in the custody of the bail, who may, at pleasure, bring him within the officer's precinct, and offer him to be taken on execution; and for the purpose of surrendering him, they may take him, at any time, within or without the State, and may depute an agent to do so. Crane v. Shaw, 13 213; Comm. ■». Brickett, (8 P.) 25 138. 20. A surety, in a bail bond, is not liable to contribute to a payment made by his co-surety, before the bail are fixed, as where execution has BAIL IN AN ACTION, II, (2), (3). 107 been returned non est inventus, but a scire facias has not been issued. Skillin v. Merrill, 16 40. (2.) Surrender of principal. 21. Under the existing statute, bail may sur- render their principal at any time before judg- ment against them on the scire facias. Where such a judgment has been rendered, and they obtain a writ of review, they may surrender their principal at the hearing upon the review, upon payment of costs. Swett v. Sullivan, 7 342; Thayer v. Goddard, (19 P.) 36 60; Safford v. Knight, 117 281. 22. See, under the former statute, Bartlett v. Falley, 5 373; Rice v. Carnes, 8 490; Skillin v. Merrill, 16 40; Bigelow v. Johnson, 16 218. 23. Bail are discharged by a surrender, al- though they fail, within fourteen days thereaf- ter, to deliver a copy of the writ to the jailor. Jones v. Varney, (8 C.) 62 137. 24. Bail may surrender their principal in court, in person or by attorney. Coolidge v. Cary, 14 115. 25. And the executor of the bail may surren- der the principal, in discharge of the estate. "Wheeler v. Wheeler, 7 169. 26. A surrender, before a justice, must be made matter of record; It cannot be proved by oral testimony. Whitton v. Harding, 15 535. 27. As to the sufficiency of the notice, served by the bail, upon the plaintiff's attorney, see Reed v. Maynard, (11 A.) 93 394. (3.) Discharge in oilier modes; failure to charge. [As to the effect of amendments in the proceed- ings upon the liability of bail, see Amendment, VI.] 28. Bail are discharged by the death of their principal, before return day of the execution; but not after that day, although the execution is not, in fact, returned. Champion v. Noyes, 2 481; Bradford «. Earle, (4 P.) 21 120; Niles v. Field, (2 Met.) 43 327; Way v. Brigham, 138 384. 29. They are discharged by his imprisonment in a State prison, at any time before they are fixed. Bigelow v. Johnson, 16 218; Way v. Wright, (5 Met.) 46 380 Parker v. Chandler, 8 264, contra, overruled. 30. Or by the creditor taking out an a'ias execution, and arresting the debtor thereunder, although after the bail are fixed and, scire facias brought. Warren v. Gilmore, (11 C.) 65 15. 31. Bail for the prison limits are discharged by confinement of the principal in the State lunatic asylum, by order of the judge of pro- Fuller v. Davis, (1 G.) 67 612. 32. Bail are discharged by the discharge of the principal under the poor debtor's act, even although the discharge is vacated on appeal. Ingersoll v. Strong, (9 Met.) 50 447; Collamore e. Fernald, (3 G.) 69 318. 33. In computing the ninety days for a poor debtor to surrender himself to discharge his bail, fractions of a day are not reckoned; any hour of the ninetieth day suffices. Clark v. Flagg, (11 C.) 65 539. 34. A discharge of the principal under the U. S. bankrupt law, discharges the bail. Champion ?>. Noyes, 2 481. 35. As to the State insolvent law, see Clark v. Flagg, (11 C.) 65 539. 36. Bail are not discharged by the principal's enlistment into the U. S. army or navy. Say ward «. Conant, 11 146; Harring- ton «. Dennie, 13 93. 37. Bail are not charged, where the execution is returned before the return day, or where the return is anything but non est inventus. Herrick v. Richardson, 11 234; Niles v. Field, (2 Met.) 43 327; Rowland v. Seymour, (2 Met.) 43 590; Bulls. Clarke, (2 Met.) 43 587. 38. Nor where the return day of an execu- tion is fraudulently stated therein, earlier than the law allows. Stevens v. Bigelow, 12 434. 39. Qu., whether they are charged, where such an error is made unintentionally by the clerk. Ranlet «. Warren, 7 477; Niles v. Field, (2 Met.) 43 327. 40. Bail are not discharged because the ex- ecution was not delivered to the officer, within thirty days after judgment. Stevens v. Bigelow, 12 433. 41. Nor because the principal resides in an- other county. Brown v. Wallace, 7 208; Crane v. Shaw, 13 213. See, also, Way v. Brigham, 138 384. 42. Nor because the principal abode in the county, and did not avoid the execution. Stevens v. Bigelow, 12 433; Winchell v. Stiles, 15 230. 43. Since the act of 1857, bail are not charged by a return of non est inventus, unless the certi- ficate, required to authorize an arrest thereun- der was annexed to the execution. Rhodes v. Brooks, (16 G.) 82 170. 44. Bail are not discharged because the plain- tiff's attorney refused, at their request, to de- liver a former execution to the officer; nor be- cause they had no notice of the delivery to the officer of the alias execution, upon which they were charged; nor because that execution was not delivered to the officer four days before the return thereof. Stevens j). Bigelow, 12 433. 45. Submitting an action, and all demands between the parties, to arbitration, discharges bail; but not the submission of the action only. Bean v. Parker, 17 591; Hill s.Hunne- well, (1 P.) 18 192. Semble, that a general submission will not dis- charge, if no new demand was admitted. Seeley «. Brown, (14 P.) 31 177. 46. A covenant by the plaintiff, after bail taken, but before judgment, not to arrest the defendant on execution within four months, does not discharge the bail; but, semble, that a written stipulation to that effect, made in tho. cause, and entered and filed, would have that effect. Fullam v. Valentine, (11 P.) 28 156 108 BAIL IN CEIMINAL PKOCEEDINGS— BAILMENT, I; IL (1). Bail in criminal proceedings. [See, also, Arrest, II; Recognizance.] 1. The supreme judicial court will not issue a Jiabeas corpus to admit to bail, one who may be admitted to bail by an inferior court. Belgard v. Morse, (2 G.) 68 406. 2. Before the act, St. 1863, Ch. 59; P. S., Ch. 212, § 57, bail in a criminal cause could not be discharged of course, i.fter a default had been recorded. Comm. v. Johnson, (3 C.) 57 454. 3. Upon a charge of assault and battery, dan- f;er of the wounded person's death is no reason or refusing bail; aliter, if the charge is of dan- gerously wounding. Comm. v. Trask, 15 277; Dunlap v. Bartlett, (10 G) 76 282. 4. The act, St. 1874, Ch. 306, § 1; P. S., Ch. 212, § 55, restricting the right to bail of one charged with a criminal offence, after he has once forfeited his bail, is constitutional. In re Allen, 126 224. 5. A commissioner, appointed by the superior court to admit prisoners to bail, may act, al- though the court is in session for proceedings before the grand jury. Comm. 1>. Merriam, (9 A.) 91 371. 6. Such a commissioner may require a written statement, under oath, from the proposed bail in any case. Comm. v. Butland, 119 317. 7. The statute now specifically designates the officers who may take take bail in criminal pro- ceedings; and the power of a justice of the peace to take bail, is limited to those justices, designated for the purpose by the governor, with the advice and consent of the council, etc. P. S., Ch. 212, § 46; Ch. 155, § 4. The fol- lowing cases relate to the power of a justice of the peace to take bail, under the former statutes. Comm. v. Cheney, 6 347; Comm. v. Loveridge, 11 337; Comm. v. Otis, 16 198; Comm. v. Canada, (13 P.I 30 86; Comm. v. Harris, (8 G.) 74 470; Comm. «. Boyle, (14 G.) SO 3; Knowles v. Da- vis, (2 A.) 84 61. [For other questions, relating to bail in a criminal proceeding, see Practice, II, (1).] Bailment. I. General Kules; gbatottous Bailee. II. Bailee fob Hibe; Hibeb. (1.) Warehouseman. (2.) Other bailees for hire; hirer. [For the lien of a bailee, see Carrier, I, (8); Lien, I. For cases where a bailee is guilty of larceny of the chattel, see Larceny. For the rights and liabilities of a sheriff's receiptor, see Attachment, II, (3). For other particular kinds of bailment, see Agent; Boarding House; Carrier; Inn and Inn-Keeper; Pledge.] I. General Rules; gratuitous Bailee. 1. A bailee can recover against a stranger for tortiously taking the chattel from his posses- sion. Eaton v. Lynde, 15 242; Winship v. Neale,(10G.) 76 382; Burke v. Savage, (13 A.) 95 408; Shaw v. Kaler, 106 448; Brewster v. Warner, 136 57. 2. The owner of a horse and wagon, who allows another, either for hire or gratuitously, to use them in the performance of his own business, is not liable for damage done by the borrower by negligent use thereof. Herlihy «. Smith, 1 16 265. 3. An express company, to which a package is delivered to be carried to a place where the company has no line, is not a common carrier, but a gratuitous bailee, and is not liable for the theft thereof. Pitlock v. Wells, 109 452. 4. A gratuitous bailee is liable only for want of ordinary care, or for bad faith. Poster v. Essex Bk, , 17 479 ; Whitney ». Lee, (8 Met.) 49 91; Smith s. West- field Nat. Bk., 99 605; Clark «. Eastern Railroad, 139 423. But if a gratuitous bailee sends the article to the principal's wife, without instructions, he is liable for a loss on the way, without regard to the question of his diligence. Jenkins v. Bacon, 111 373. 5. Where the bailee of a horse, in violation of the terms of the bailment, and without the bailor's knowledge, assumes dominion over and ownership of the horse, and the horse is killed, while being used in that manner, the bailee is liable in trover Goell v. Smith, 128 238. See, also, Daniels «. Pond, (21 P.) 38 367. 6. A right of action by the owner of a chat- tel, for injury done to it while in a bailee's pos- session, is not barred by a settlement between the owner and the bailee, whereby the bailee is to bring an action for his own benefit in the owner's name. Rindge i>. Coleraine, (11 G.) 77 157. 7. One who has illegally detained goods, which the owner has since agreed to accept and send for, is not liable for a loss by fire, without his fault, after the lapse of a reasonable time. Carnes v. Nichols, (10 G.) 76 369. 8. An officer who attaches a boat, is a gratui- tous bailee, as to articles then contained therein, and forming no part thereof. Briggs v. Dearborn, 99 50. 9. An agreement by a bailee not to remove the chattel from the premises, is not broken by a removal by an officer attaching it against the bailee; and the bailor cannot maintain replevin therefor against the officer. Wade i>. Mason, (12 G.) 78 335. II. Bailee for Hire; Hirer. (1.) Warehouseman, [As to a warehouseman's lien, see Lien, I.] 10. A warehouseman is responsible for due care in storing the goods, in a place of reasona- ble safety, and is to be charged only upon proof of his own negligence, or that of his servants, in the course of his employment. Aldrich v. Boston & W. R. R., 100 31; Clark i>. Eastern Railroad, 139 423. 11. And in an action against a warehouseman for the loss, by theft, of goods stored with him, the plaintiff must show, not only negligence, but BAILMENT, II, (1), (2). 109 that the loss occurred in consequence of such negligence. Roberts v. Gurney, 120 33. 13. So -where the action is for injury to goods during the storage. Gay «. Bates, 99 263. 13. Held, however, in other cases, that where a warehouseman fails to deliver goods intrusted to him, the burden of proof, to show that the loss was without his fault, is upon him. Lichtenhein v, Boston & P. R. R., (11 C.) 65 70; Alden v. Pearson, (3 G.) 69 342; Cass v. Boston & L. R. R., (14 A.) 96 448. 14. "Where a private warehouseman gives a receipt, containing only an undertaking to his bailor personally, a mere indorsement over of the receipt does not make him a bailee for the indorser; and a creditor of the bailor, who at- taches the goods, before notice to the bailee, holds them. Hallgarten v. Oldham, 135 1. 15. The effect of the indorsement and deliv- ery, in another state, of a warehouseman's re- ceipt, depends upon the law of this State. Hallgarten v. Oldham, 135 1. 16. A warehouseman is answerable for deliv- ering goods to the wrong person by mistake. Lichtenhein «. Boston & P. R. R., (11 C.) 65 70. 17. But a warehouseman who hires a ware- house, containing goods on storage, and receives a list of owners, is not liable for delivering goods, in good faith, to a person who appears upon the list as the owner, although they were, in fact, owned by another, who held the ware- house receipt. Parker v. Lombard, lOO 405. 18. Whether a warehouseman's refusal to de- liver flour, under an order for "the balance of the flour" in his hands, without an order speci- fying the quantity, is reasonable, is for the jury. Porter v. Hills, 114 106. 19. A warehouseman is not bound to make inquiry for, or go in pursuit of, property, of which he has once ceased to have possession. Sessions «. "Western R. R., (16 G.) 82 132. (2.) Other bailees for hire; hirer. 20. A bailee for hire is bound to use the same care in regard to the chattel, which men of or- dinary prudence would exercise over their own property, under the same circumstances. Maynard v. Buck, lOO 40. 21. For various rulings upon questions of the negligence of a drover for hire, whose drove was frightened by a railroad train, see Maynard «. Buck, lOO 40. 22. Where a bailee for hire expressly agrees to return the chattel, in as good order as re- ceived, "customary wear and tear excepted," he is liable for an injury from inevitable acci- dent. Harvey v. Murray, 136 377. 23. But under an ordinary contract of bail- ment for hire, the bailee is not responsible if the property is stolen, if it was not through his ordinary neglect. Poster «. Essex Bank, 1 7 479. 24. He must, however, show that he used due and reasonable care. Brown v. Waterman, (10 0.) 64 117; Lichtenhein v. Boston & P. R. R., (11 C.) 65 70. 25. One who takes a chattel, under an agree- ment, that on payment of the purchase money, he shall own it, otherwise he shall pay for the use of it, is a bailee for hire. Pairbank «. Phelps, (22 P.) 39 535. 26. A bailee for hire is not excused for want of reasonable care, by proof that the owner knew the care which he was taking, and made no objection; or by any proof short of waiver of due care by the owner. Conway Bk. v. Am. Express Co., (8 A.) 90 512 27. A person, who negligently receives goods not directed to him, is subject to the liability of a bailee for hire; and a contingent benefit suf- fices as the consideration. Newhall v. Paige, (10 G.) 76 366. 28. A claim for the use of a chattel is sup- ported by proof that defendant had it in his possession, with the right to use it. Reilly v. Rand, 123 215. 29., One who uses a chattel, hired in his name without authority, having no reason to suppose that he was looked to for payment, is not liable for the hire thereof. Adams v. Bourne, (9 G.) 75 100. 30. The hirer of a horse is liable to the owner for an injury, caused by want of reasonable care and skill in driving him, unless he is manifestly incapable of using such care and skill. Mooers v. Larry, (15 G.) 81 451. 31. But a hirer is not responsible for an in- jury caused by the insufficiency of the harness, or a fault of the horse. Perham v. Coney, 117 102. 32. A person who hires a horse to go a certain distance, or to a certain place, and goes further or elsewhere, is liable in trover, although he is an infant, or the contract was made on Sunday. Wheelock v. Wheelwright, 5 104; Homers. Thwing, (3 P.) 20 492; Rotch e. Hawes, (12 P ) 29 136; Lucas v. Trumbull, (15 G.) 81 306; Hall v. Cor- coran, 107 251. 33. AUter, if the diversion was unintentional. Spooner v. Manchester, 133 270. 34. But if the owner receives payment for the entire distance, he ratifies the act, and, if the horse has been injured, he is put to his special action on the case. Rotch v. Hawes, (12 P.) 29 136. 35. Where two defendants are sued jointly in trover in such a case, one may show in de- fence that he was merely a passenger, unless it is shown that he expressly hired the horse. Adams ». Graves, (18 P.) 35 355. 36 Where the hirer of a horse has injured him by improperly feeding and watering him, the owner may recover his full value if he dies, although the plaintiff had a veterinary surgeon, whose treatment was improper. Eastman v. Sanborn, (3 A.) 85 594. 37. A livery stable keeper is liable for any damage, caused by his furnishing a hirer with a horse, not suitable for the purpose for which the animal is to be used, although a defect in the highway contributed to the injury; and his 110 BANK AND BANKING, I, (1), (2). ignorance of the horse's unsuitableness does not excuse him. Home v. Meakin, 115 326. 38. If he knows that the horse is hired for a third person, he is thus liable to the latter. Home v. Meakin, 115 326. 39. Where a chattel, while in possession of a bailee for hire, is injured by another's negli- gence, and the bailor causes it to be repaired, and charges the expense to the bailee, at his request, the bailee may maintain an action of tort against the person causing the damage, although he has not paid for the repairs. Brewster ii. "Warner, 136 57. Bank and banking. I. Banks organized under the Laws op this Commonwealth. (1 ) General rights and liabilities under char- ter, and other statutes. (2.) Stockholders' rights and liabilities. (3.) Insolvency; sequestration; winding up. II. National Banks. III. Banking Business. (1.) Deposits and discounts. (2.) Collections. (3.) Circulating notes. (4.) Usages, customs, and by-laws; clearing house. IV. Officers and Servants. (1.) Directors. (2.) President. (3.) Cashier. (4.) Other officers and servants; general rules. (5.) Security for official conduct. IFor rulings relating to savings banks, see Sav- ings Bank. For various other rulings relating to Dinks and bank officers, see Bill of Exchange and Promissory Note; Check; Corporation; Embezzlement; Larceny; Taxation, II, (3); X,(l).] I. Banks organized under the Laws of this Commonwealth. (1.) General rights and liabilities under charter, and other statutes. [See, also, post, III, (l).] 1. The office of a private banker, although called "The Bank of the Metropolis," is not a bank within the terms of a note, payable at any bank in Boston. The word "bank " means an incorporated institution. Way v. Butterworth, 106 75; Way v. Butterworth, 108 509. 2. The authority given to a bank, by its char- ter, to have credits and make discounts upon deposits, does not extend to special deposits, which cannot be used without a breach of trust. Fosters Essex Bk., 17 479. 3 A bank, whose capital is limited by its charter to not less than one sum, nor more than another, may begin business with the smaller sum as capital, and afterwards increase it to not more than the larger. Gray v. Portland Bk., 3 364. 4. Banks are subject to the general law against usury; but it is lawful for a bank to de- duct interest in advance. Maine Bk. v Butts, 9 49; Agric'l Bk v. Bissell, (12 P.) 29 586. 5. A bank is bound to exhibit its books to a depositor, on a proper occasion. Union Bk. v. Knapp, (3 P.) 20 96; Watson v. Phoenix Bk.. (8 Met.) 49 217. 6. Where a statute prohibits banks from re- ceiving the bills of foreign banks, a note paya- ble in such bills to a domestic bank is void. Springfield Bk. v. Merrick, 14 322. 7. But a draft, made by a domestic bank upon a foreign bank, for more than $100, con- trary to the statute, is not void in the hands of an innocent holder. Paneuil Hall Bk. v. Brighton Bk., (16 G.) 82 534. 8. The statute prohibits a bank from borrow- ing from another bank, money payable at a day certain, but not money payable on demand, with interest. Comm. v. Mut. Bed. Bk., (4 A.) 86 1. 9. But a bank may not buy specie or ex- change from another bank, with its own bills, under an agreement that the bills shall not be returned, or put into circulation, for a specified time. Comm. v. Mut. Red. Bk., (4 A.) 86 1. 10. If a bank fails to keep on hand the specie reserve of fifteen per cent, required by the stat- ute, it is liable to be enjoined on the application of the bank commissioners. Comm. v. Mut. Bed. Bk., (4 A.) 86 1, 11 But if the provisions, referred to in the last three articles, have been violated only through mistake or misapprehension of the law, a temporary injunction, granted against the bank, will be dissolved. Comm. b. Mut. Bed. Bk., (4 A.) 86 1. 12. The statutory prohibition against vesting, using, etc., any money of a bank, in trade or commerce, does not apply to taking bills of other banks at a discount. Portland Bk. v. Storer, 7 433. 13. The permission to carry on business, "upon banking principles," allows a bank to make a loan in its own bills, upon a contract that if any of them are returned within the time of the loan, the borrower shall redeem them in specie, and shall receive certain bills of other banks as specie. Northampton Bk. v. Allen, 10 284. For rulings under certain former statutes, see: under St. 1813, Ch. 57, Hallowell & A. Bk. v. Hamlin. 1 4 178:under St. 1819, Ch. 43, Folger v. Chase, (18 P.) 35 63; Foster ®. Essex Bk., 16 24*; under St. 1816, Ch. 91, King v. Dedham Bk., 15 447; Dedham Bk. v. Chickering, (4 P.) 31 314.] (2.) Stockholders' rights and liabilities. [For rulings relating to the transfer of shares of stock, and other questions relating to stock, see Corporation, III.] 14. Shares in a bank do not strictly consti- tute a legal estate and property; it is rather a limited and qualified right to participate in the benefits of a fund, vested in the "corporation; a qualified and equitable interest. And one or BANK AND BANKING, I, (2), (3). Ill all of the stockholders cannot maintain an action against the directors, for malfeasance or non- feasance. Smith 0. Hurd, (12 Met.) 53 371. 15. "Where the capital of a bank is increased, ■under a power in its charter, each stockholder is] entitled to subscribe for a pro rata propor- tion. Gray v. Portland Bk., 3 364. 16. A creditor of a bank cannot maintain an action at law against a stockholder, upon the provision making stockholders liable for capi- tal lost by mismanagement of the directors. Harris n. Dorchester Parish, (23 P.) 40 112. [As to the limitation of the equitable action, see Limitation, i. Boylston Bk., (5 C.) 59 194. 59. But where, by an agreement, or the course of business between a bank and a de- positor, his note is not included in the general account, the bank only, not a surety, can insist that a general balance due him be applied upon the note. Mahaiwe Nat. Bk. v. Peck, 127 298. 60. And in a suit by an assignee in insolvency against a bank, for converting notes left with it by the insolvent for discount, the bank cannot set off a debt due to it by the insolvent. Stetson v. Exchange Bk., (7 G.) 73 425. Ci.) Collections. 61. Where a bank sends a note, before matu- rity, to another bank for collection, an indorse- ment to pay the latter bank " for collection " does not affect the right of the former, as the last indorser, within the rule allowing an in- dorser to charge a prior indorser, by giving to him notice. First Nat. Bk. of Lynn v. Smith, 132 227. 62. A bank, receiving a note for collection, is bound to make a regular demand; and, if it is not paid, to give notice to the last indorser, or person sending it for collection; but not to the other indorsers, unless it was so agreed. Fabens v. Merc. Bk., (23 P.) 40 330; Phippsfl. MillburyBk., (8 Met.) 49 79. 63. But if the note is payable elsewhere, and no special agreement is made, the bank so re- ceiving it, is bound only to transmit seasonably to another bank, at that place, and is not respon- sible for the latter bank's neglect or default. Fabens v. Merc. Bk., (23 P.) 40 330; Dorchester & M. Bk. v. N. E. Bk-., (1 C.) 55 177. 64. In an action by a bank so transmitting, against the bank so receiving the paper, evi- dence of invariable usage, at the place where the latter bank is, to keep, till the close of bank hours, notes sent for collection, and, if not then paid, to put them in the hands of a notary for demand and protest, will excuse the defendant from any loss, caused by the negligence of the notary, in whose hands the note was so placed. Warren Bk «. Suffolk Bk., (10 C.) 64 582. 65. If the bank, receiving the note for collec- tion, has no correspondent at the place where it is payable, it may transmit the note, with a general indorsement, to a bank at another place, which has such a correspondent; and no proof of usage is necessary to give it authority so to do. Dorchester & M. Bk. «. N. E. Bk., (1 C.) 55 177. 66. Where the holder of a note delivers it to a bank, with directions to appropriate the pro- ceeds to a specified object, the bank may real- ize the proceeds, either by collecting or dis- counting the note, if the holder does not make an election. Drown v. Pawtucket Bk., (15 P.) 32 88. Vol. 1—15 67. If the indorser, with knowledge that an insufficient demand has been made, pays the note, no action lies for the negligence. Warren Bk. v. Parker, (8 G.) 74 221. (3.) Circulating notes. 68. The words "bank bill " and " bank note," as used in the statute, have the same meaning. Eastman «. Comm., (4 G.) 70 416. 69. A bank is not liable to a bona fide holder of its circulating notes, which were stolen be- fore being signed by the president, and his sig- nature thereto forged. Salem Bk. v. Gloucester Bk., 17 1. See, however, Gloucester Bk. i>. Salem Bk., 17 33. 70. But the burden of proof is upon the bank, in all cases, where it denies its liability on its circulating notes. Worcester Co. Bk. v. Dorchester & M. Bk., (10 C.) 64 488; Wyer t\ Dorches- ter & M. Bk., (11 C.) 65*51. 71. The owner of bank notes which have been destroyed, cannot maintain an action upon them, unless they can be identified or distin- tinguished from other bills, even upon tender- ing a bond of indemnity. Tower*.AppletonBk.,(3A.) 85 387. 72. In trover, for conversion of bank notes, evidence that they were duly issued by a bank of this Commonwealth, is sufficient, if uncon- trolled, to authorize the jury to find that they were worth the sums therein promised to the bearer. Beatty v. Randall, (5 A.) 87 441. 73. A new bank, incorporated under the same name as one whose charter is expiring, with the same officeis, and issuing the same bills, is not liable on such bills, without proof that it issued them as its own bills. Wyman i>. Hallowell & A. Bk., 14 58. 74. Bank notes are not a legal tender, and cannot be paid into court, even in a suit by the bank which issued them; but they are a good tender, unless objected to. Hallowell & A. Bk. v. Howard, 13 235; Snow v. Perry, (9 P.) 26 539; Phillips d. Blake, (1 Met.) 42 156; Gushee.D. Eddy, (11 G.) 77 502. 75. The statute, imposing a penalty of two per cent a month against a bank, failing to re- deem its circulating notes on demand, is consti- tutional; and a tender stops the running of the penalty. Brown ■». Penobscot Bk., 8 445; Suf- folk Bk. v. Worcester Bk., (5 P.) 22 106. 76. Sufficiency of a declaration, in a suit for such a penalty. Churchill v. Merchants' Bk.. (19 P.) 36 532. 77. Circulating notes of a bank cannot be pursued as the property of an individual, through whose hands they have passed, if they cannot be identified. Fuller «. Randall, (1 G.) 67 608. 78. One who receives a bill of a broken bank, not knowing it to be such, does not take it at his risk; and the passing of such a bill, upon a representation that it is of its full value, 114 BANK AND BANKING, III, (4); IV, (1). is a punishable fraud, although it is of some value. Comm. v. Stone, (4 Met.) 45 43. 79. But for the statute, the circulating notes of a bank would not be entitled to a priority over other debts of an insolvent bank. Cochituate Bk. v. Colt, (1 G) 67 382. [For other rulings relating to circulating notes of a bank, see ante, arts. Si, 17 to 28, 57. As to counter- feit nutes, see Assumpsit, art. 71 ; Payment, art. 8. As to counterfeiting bank notes, see Forgery.1 (4.) Usages, customs, and by-laws; cleari ng-liolise. [See, also, Usage.] 80. Where a note is held by the bank where it is payable, a usage to give the promissor notice, on the first day of grace, to call and pay it when due; and, if he does not do so, to notify the indorser without further demand, binds all parties, expressly or impliedly conusant of the usage. Jones v. Fales, 4 245; Smith v. "Whit- ing, 12 6; Meeh's Bk. ■». Merch'ts Bk., (6 Met.) 47 13; "Warren Bk. e. Parker, (8G.) 74 221. 81. But a usage cannot accelerate the day when t„e note is legally payable. Meeh's Bk. v. Merch'ts Bk., (6 Met.) 47 13; overruling in part, Blanchard v. Hilliard, 1 1 85. See further, as to the effect of usage in such cases, Lincoln & K. Bk. «. Page, 9 155; Central Bk. i>. Davis, (19 P.) 36 373. 82. Sending notice to an indorser by mail, according to the established usage of the bank, suffices, although he does not receive it. Lincoln & K. Bk. v. Hammatt, 9 159; Chicopee Bk. «. Eager, (9 Met.) 50 583. [See Bill op Exchange and Promissory Notei III, (3).] 83. A usage, known to the maker, as to the mode of demand, binds an indorser, although he is not conusant of it; aliter, as to the time of giving him notice. Peirce «. Butler, 14 303; "Whitwell v. Johnson, 17 449; "Warren Bk. v. Parker, (8 G.) 74 221. 84. The known usage of a bank, to regard a particular day as a holiday, binds an indorser offering a note for discount. City Bk. v. Cutter, (3 P.) 20 414. 85 Evidence that an indorser, living in the town where the bank is located, has frequently transacted the same kind of business at the bank, is sufficient to show that he is conusant of a usage as to making demand on the maker. Shove v. "Wiley, (18 P.) 35 558. 86. So a director is bound by a usage of his bank, to leave a notice of non-payment to an indorser, who is a director, on the cashier's desk. Weld v. Gorham, 10 366. 87. Where A, in Boston, sent to a bank in Maine a cheek on it, drawn by one who had funds, with a letter requesting the bank to send him a check on a Boston bank ' ' for the inclosed check, and the bank sent to him a letter, con- taining another person's check on Boston for part, and the remainder in currency, which was E ^ ce l v , ed j ? **> held, that it was the Maine bank's duty to have sent its own check, and that a usage to charge one quarter of one per cent for a draft on Boston was no excuse Ames v. York Nat. Bk., 103 226. 88. Where it is shown that the teller of a bank has no direct authority to certify cheeks as good, but it is the usage, in some banks iu the same place, that a teller should so certify, and the teller of this bank has done so, with the knowledge of the bank, when the checks were in fact good; this does not bind the bank upon such a certificate to a check which was not good, although taken bona fide. A usage for him so to certify, to enable the holder to use the check at his pleasure, is bad. Mussey v. Eagle Bk., (9 Met.) 50 306. 89. A usage for a teller to certify certificates of deposit, does not show a usage for him to certify checks. Mussey v. Eagle Bk. , (9 Met.) 50 306. 90. Eor various rulings as to the effect of usage and custom, among the banks who are members of the clearing-house, respecting the sending checks, notes, etc., to, and payment thereof through, the clearing-house; notice of non-payment; the right of reclamation, etc., see Merchants' Nat. Bk. v. Eagle Nat. Bk., 101 281; Manuf. Nat. Bk. «. Thomp- son, 129 438; Exchange Nat. Bk. i>. Nat. Bk. of N. America, 132 147; Merchants' Nat. Bk. e. Nat. Bk. of Comm., 139 513. 91. As to the right of a bank to recover back the amount of a check, paid by mistake to an- other bank, through the clearing-house, see Merchants' Nat. Bk. *. Nat. Bk, of Comm., 139 513. 92. Qu., whether a by-law of a bank, giving the bank a lien upon the shares of each stock- holder, for any money which he may owe the bank, is valid against other creditors. Nesmith v. Wash'n Bk., (6 P.) 23 324; Plymouth Bk. v. Bk. of Norfolk, (10 P.) 27 454. [See, also, Sargent v. Franklin Ins. Co., (8 P.) 25 90 ; and Corporation, III, (1).] 93. A by-law of a bank, requiring all in- dorsers to waive notice "on the back of the paper," does not prove a usage to waive notice in any other mode. Central Bk. v. Davis, (19 P.) 36 373. IV. Officers, and Servants. [See, also, Corporation, IV.] CI.) Directors. 94. The board of directors of a bank, for all purposes of dealing with others, constitutes the corporation. It may delegate authority to a committee, or to one of its members, Northampton Bk. v. Pepoon, 1 1 288; Burrill e. Nahant Bk., (2 Met.) 43 163. 95. If a note is discounted by a bank, the mere fact that one of the directors knew that it was tainted with fraud or illegality, will not prevent the bank from recovering. "Washington Bk. v. Lewis, (22 P.) 39 24: Comm'l Bk. v. Cunningham, (24 ¥.) 41 270; Housatonic Bk. v. Martin, fl Met.) 42 294; Nat. Security Bk, *. Cushman, 121 490. BANK AND BANKING, IV, (2), (3), (4), (5). 115 96. So a director's knowledge of fraud or illegality, in an instrument pledged to a bank as collateral security for a loan, will not render the bank liable. Innerarity v. Merchants' Nat. Bk. , 139 332. 97. But if the director, who has such knowl- edge, acts for the bank in discounting the note, cither alone or with another officer, his act is the act of the bank; and the bank is affected •with his knowledge. Nat. Security Bk. ■». Cushman, 121 490. [For other rulings as to the effect, upon the rights and liabilities of a bank, of notice to or knowledge of a director, see Agency, IV, (1).] (2.) President. 98. The president of a bank, if authorized by the directors, may transfer, by an indorse- ment in blank, a note payable to the order of the bank. Spear ». Ladd, 11 94; Northampton Bk. v. Pepoon, 11 288. 99. There is no implied contract on the part of a bank, whose objects are partly charitable, to pay its president for his official services; and such a contract is not established by proof, that the president said to some of the directors, that he should expect compensation, and they made no answer. Sawyer?). Pawners' Bk., (6 A.) 88 207. 100. To enable the president of a bank to recover compensation for his services, they must have been rendered under such circumstances, as to raise a fair presumption that the parties in- tended and understood, that they were to be paid for. , Pew v. Gloucester Nat. Bk., 130 391. 101. Where the directors of a bank appointed a building committee, of which the president was one, and afterwards the president, with the approbation of the committee, and the knowl- edge of the directors, devoted his entire time, except that which was required for the dis- charge of his duties as president, to superin- tending the work,- thereby saving the expense of a superintendent, this does not create an im- plied promise by the bank to pay him for such services. Pew». Gloucester Nat, Bk., 130 391. 102. Where the president of a bank orally resigned his office, for the insufficiency of his salary, and the directors afterwards refused to increase it; and the president, in ignorance of this refusal, came into a meeting and withdrew his resignation, saying that he did so upon the assurance that the salary should be arranged to his satisfaction, to which the directors made no answer, this is not a contract, express or im- plied, to pay an increased salary. Pew «. Gloucester Nat. Bk., 130 391. (3.) Cashier. 103. The cashier of a bank is its executive financial officer. It is under his direction that its moneys are received and paid out; that its debts are collected and paid; that its securities are kept and 'transferred. Such powers as are habitually exercised by cashiers must be held, so far as the public are concerned, to be con- ferred upon one by his election to that office. Loring v Brodie, 134 453. 104. If the cashier of a bank receives securi- ties, upon a loan from the bank to a trustee, with knowledge that they belong to a trust, the bank is affected with knowledge, and put upon inquiry whether the trustee had authority to pledge them. Loring v. Brodie, 134 453. Same principle, Fall R. Union Bk. ». Sturtevant, (12 C.) 66 372. 105. A cashier may, ex officio, indorse a note belonging to the bank, so as to authorize a de- mand, and notice of non-payment to a prior in- dorsee Hartford Bk. v. Barry, 17 94; Folger v. Chase, (18 P.) 35 63. 106. A bank is responsible for the act of its cashier, in making a draft upon another bank, payable at a future day certain, contrary to the statutory prohibition, although he drew it to conceal his own embezzlement. Faneuil Hall Bk. v. Brighton Bk., (16 G.) 82 534. 107. It is not negligence for a bank to intrust its cashier to select, and pay out of his salary, the clerks and other servants, employed in the banking office. Smith v. First Nat. Bk. Westfield, 99 605. [See, also, post, IV, (5).] (4.) Other officers and servants; general rules. 108. It is not a part of a teller's duty, as such, to certify a check as good. Mussey v. Eagle Bk. , (9 Met.) 50 306. [See, further, as to a teller, poat, arts. 112, 124 to 127.] 109. Where the officers of a bank have been in the practice of receiving valuables, to be de- posited in its vaults for safe keeping, the bank is deemed the depositary, not the officers. Foster v. Essex Bk„ 17 4^9. 110. An action will not lie against a bank, to recover a valuable package deposited with it, and lost by the theft of one of several of its em- ployees, who had access to the vault. And if that inference is equally deducible from the evi- dence, with any other, the plaintiff cannot re- cover. Foster i>. Essex Bk., 17 479; Smith ». First Nat. Bk. of Westfield, 99 605. 111. A bank is liable to refund money, fraudu- lently taken from one by his clerk, and paid to the defaulting teller, and by him used to con- ceal the deficit. Atlantic Bk. v. Merchants' Bk., (10 G.) 76 532; Skinner v. Merchants' Bk., (4 A.) 86 290. <5.) Security for official conduct. [See, also, Bond, III, (2); Surety.] 112. Upon a bond to a bank, for the faithful discharge of his official duties, by one as " clerk of said bank," the sureties are liable, where he acted continuously under his appointment as clerk, although afterwards he performed sub- stantially the duties of a teller. Rollstone Nat. Bk. v. Carleton, 136 226. 113. And where a cashier is reappointed from year to year, the sureties continue to be liable, without a new bond. Dedham Bk. v. Chickering, (3 P.) 20 116 BANK AND BANKING, IV, (,5)-BANKRUPTCY, I, (1). 335; Amherst Bk. v. Root, (2 Met.) 43 522. 114. So where the bond provides that the employee, an accountant, shall continue in of- fice two years, the sureties are liable for a sub- sequent default. "Worcester Bk. v. Beed, 9 267. 115. A cashier's bond, containing nothing contrary to law, is not void, because the condi- tion varies from that prescribed by statute, nor because it has only one surety. Grocers' Bk. v. Kingman, (16 G.) 82 473, Brighton Bk. v. Smith, (5 A.) 87 413. 116. Nor are the sureties entitled to notice of his resignation or default, or to a demand be- fore action. Grocers' Bk. i>. Kingman, (16 G.) 82 473. 117. Nor are they discharged because the cashier had, before the bond was given, com- mitted gross frauds upon the bank, for not dis- covering which, its officers were chargeable with gross negligence. Tapleyn. Martin. 116 275. 118. But they are exonerated, by an increase of the capital of the bank, for acts or defaults subsequently occurring. Grocers' Bk. ■». Kingman, (16 G ) 82 473 119. A conveyance of property, by a default- ing cashier, to cover his known defalcations, does not entitle the sureties to have that prop- erty applied to cover an embezzlement then un- known Grocers' Bk. s. Kingman, (16 G.) 82 473. 120. The sureties on a cashier's bond are liable for his putting into circulation, for his own use, bills returned to him, of which the statute prohibited the circulation anew; but not if this was done with the directors' knowledge. Dedham Bk. v. Chickering, (4 P.) 21 314. 121. They are not liable for money collected by him as attorney, or for fraud in any other act, not done in his capacity as cashier, although he was able to do it only by reason of his being cashier. Dedham Bk. v. Chickering, (4 P.) 21 314 122. But where a cashier, to conceal a delin- quency occurring before the bond was given, borrowed money, "in his capacity as cashier," and placed it in the vaults until after an exami- nation by the directors, and then repaid it out of the funds of the bank, the surety is liable, the transaction being substantially a payment out of his own funds, and a subsequent use of the bank's funds Ingraham v Maine Bk , 13 208. 123. Where a cashier's bond for faithful per- formance contained a condition, that no suit should be brought upon it, unless commenced within twelve months after his employment had ceased, and an action was seasonably brought upon it, pending which, but more than twelve months after the cashier had resigned, the surety died, it was held that a new action might be maintained against the administrator Eliot Nat. Bk. v. Beal. 141 566. 124. The sureties in a bond for faithful per- formance of his duty by a teller, are responsible for want of ordinary skill and diligence, as well as of integrity. American Bk. v. Adams, (12 P.) 29 303. 125. Where, in an action upon such a bond, the breach assigned is failure to pay to the cashier money received by the teller, a delivery to the cashier of bills of the bank, stolen from another teller's drawer, is not a payment. State Bk. v. Welles, (3 P.) 20 394. 126. In an action upon such a bond, an alle- gation that the teller has received money, for which he has not accounted, is a sufficient as- signment of a breach. American Bk. v. Adams, (12 P.) 29 303. 127. As to the sufficiency of circumstantial evidence, to sustain the defence that the money was casually lost by the teller, or stolen from him, see American Bk. v. Adams, (12 P.) 29 303. Bankruptcy. I. Under the Acts of 1800 and 1841. (1.) Under U. S. St. 1800, Ch. 19. (2.) Under U. S. St. 1841, Ch. 9. II. Under the Act of 1867, and subsequent Provisions. (1.) Effect and operation of the act. (2.) The adjudication. (3.) The assignment; assignee's powers and duties. (4.) Proof of debts. (5.) Composition. (6.) The discharge. (7.) New promise to pay debt discharged. [For parallel eases upon most of the questions arising under this title, see Insolvency.] I. Under the Acts of 1800 and 1841. (1.) Under TJ. S. St. 1800, Ch. 19. 1. Where the maker of a note, at the payee's request, joined with him as surety in a bond to a third person, for a less sum than was due upon the note, and it was agreed, that a balance should be left due upon the note, sufficient to indemnify the maker, this is a good defence to an action upon the note by the payee's assignee in bankruptcy. Ward v. Winship, 12 481. 2. An express promise of a bankrupt to pay a debt, barred by his discharge, is a waiver of the discharge, and an action lies upon the original debt. Maxim B.Morse, 8 127; Ways. Sperry, (6C.) 60 238. 3. An action against the assignee of a bank- rupt does not survive against his executor. Hall v. Cushing, 8 521. 4. For various rulings under the peculiar provisions of the act of 1800, see Lovetti). Cutler, 1 67; Fales®. Thomp- son, 1 134; Payson«. Payson, 1 283; BANKRUPTCY, I, (2); II, (1), (2). nr Sullivan*. Bridge, 1 511; Locked Win- ning, 3 325; Livermore o Bagley, 3 487, Selfridge v. Gill, 4 95; Oliver *, Smith, 5 183; Waterman *. Robinson, 5 303; Lummus ». Fairfield, 5 248, Chandler *. Windship, 6 310; Livermore v. Swasey, 7 213; Amblard * Heard, 9 489; Whitney *. Crafts, 10 23. (2.) Under U. S. St. 1841, Cli, 9. 5. A personal claim, which there was no legal power to enforce, did not pass to the assignee in bankruptcy, although an award thereupon had been made by arbitrators'. Tallman *. Tollman, (5 C.) 59 325. 6. As to a husband's interest in property of lllS WlfG SGG Smith «. Chandler, (3 G.) 69 392; Parks v. Tirrell, (3 A.) 85 15. 7. An estate in remainder passed. Nash *. Nash, (12 A.) 94 345; Minot » Tappan, 122 535. See, also, Gard- ner *. Hooper, (3 G.) 69 398; Blanchard e. Blanchard, (1 A.) 83 223; Dunn o. Sargent, 101 336. 8. Where a promissory note, inserted by a bankrupt in his schedule of assets, was assigned to him by his assignee, under § 3 of the act of 1841, he might sue in his own name upon a judgment recovered on the note, before he be- came a bankrupt. Robinson *. Hall, (11 G.) 77 483. 9. A discharge, under the act of 1841, did not bar a suit to recover land, wrongfully with- held from the owner. Crosby®. Wentworth, (7 Met.) 48 10. 10. Or for a quarter's rent, under a lease falling due after the proceedings were com- menced, the bankrupt having continued to oc- cupy the premises. , Savory *. Stocking, (4 C.) 58 607. 11. Or upon a probate bond, where the bank- mptcv was before breach of the condition. " Loring *. Kendall, (1 G.) 67 305. 12. Or upon a covenant against incumbrances, for damages sustained since the discharge. French *. Morse, (2 G.) 68 111. 13. Or upon an implied warranty of title to goods pledged. Bennett *. Bartlett, (6 C.) 60 225. 14. Or to recover against a tax collector for a •defalcation. Morse *. Lowell, (7 Met.) 48 152. 15. Or against an attorney for money col- lected Wolcott *. Hodge; (15 G.) 81 547,. 16. But if judgment was obtained for such a debt, before the proceedings were instituted, the discharge barred.it. Wolcott *. Hodge, (15 G.) 81 547. 17. A fiduciary debt, if proved, was barred; hut if proved, upon the erroneous supposition that it would prevent a discharge from other debts, and afterwards withdrawn by leave of the district coui t, it was not barred. Morse ». Lowell, (7 Met.) 48 152. 18. A demand against a factor, for the pro- ceeds of goods sold, was barred. Hayman *. Pond, (7 Met.) 48 328. 19. An accidental omission of the plaintiff, in the schedule, aid not invalidate the discharge. Burnside *. Brigham, (8 Met) 49 75. 20. The discharge, when set up as a defence, might be impeached by proof of a fraudulent preference, forbidden by the act, or cf unlaw- ful payments; or other fraud upon the proceed- ings Beekman v. Wilson, (9 Met ) 50 434, Coates v. Blush, (1 C.) 55 564; Swan *, Littlefield, (4 C.) 58 574 [For the effect of proceedings under the act of 1841, upon an attachment, see Attachment, IV, (2). J 21. For various other rulings, under the pe- culiar provisions of the act of 1841, see Day «. Laflin, (6 Met.) 47 280; Jones ii. Howland, (8 Met.) 49 377; Atkins ®. Spear, (8 Met.) 49 490; Minot ii. Brick- ett, (8 Met.) 49 560; Ames *. Gilman, (10 Met.) 51 239; Ward*. Jenkins, (10 Met.) 5 1 583, Osborn *. Baxter, (4 C.) 58 406, Cook *.Moore, (11 C.) 65 213; Loring*. Kendall, (1 G.) 67 305; Minot *. Tappan, 127 333. II. Under the Act of 1867, and subse- quent Provisions. (1.) Effect and operation of the act. [See, also, Constitutional Law, II, (7).] 22 A fugitive from justice, whose domicil was here at the time of his flight, and who has gained no domicil elsewhere, is liable to pro- ceedings in bankruptcy here. Cobb e. Rice, 130 231. 23. The act merely suspended the insolvent law of this State, from the approval to the re- peal thereof; and a conveyance, forbidden by the State insolvent law, made before the repeal, suffices for the institution of insolvency pro- ceedings after the repeal. Day *. Bardwell, 97 246; Lothrop *. Highland F. Co., 128 120. 24. An insolvent law of another state, the effect of which is to bar an action on a claim, was thus suspended. Lyman *. Bond, 130 291. 25. Section 44 of the bankrupt act of 1867, providing for punishment of the bankrupt by criminal prosecution in the United States courts, for fraudulently obtaining goods upon credit, does not exclude the jurisdiction of the State courts to punish him for the same offence. Comm. *. Walker, 108 309. 26. Where an employee of a firm agreed to pay half the loss upon all credits given by him, and on the same day the members of the firm filed a petition, upon which they were afterwards adjudicated bankrupts, but they continued to carry on business as before, it was held that the employee was liable for losses upon credits, given after filing the petition. Freeman *. Griggs, 137 75. (2.) The adjudication. [For rulings relating to the effect of an adjudica- tion in bankruptcy, upon an attachment previously obtained under the State law, and relating to the special judgment allowed by St. 1875, Ch. 68; P. S., Ch. 171, §§ 23, 24, see Attachment, t V, '2).] 27. Where one, adjudicated a bankrupt, has been defaulted in an action upon a provable claim, or a verdict has been taken against him, 118 BANKRUPTCY, II, (2), (3). and, in either case, where judgment has not been taken, he is entitled to have the cause con- tinued, to await the determination of the bank- ruptcy court upon the question of his discharge; and, upon filing a certificate of discharge, he is entitled to judgment. Ray B.Wight, 119 426; Clinton Nat. Bk. v. Taylor, 120 124; Page v. Cole, 123 93. 28. So where the cause has been referred by rule of court. Seaveys. Beckler, 128 471. 29. Such an application is addressed to the discretion of the court, and an exception to its decision does not lie. Reeds. Paul, 131 129. 30. A creditor, whose claim is provable, but has not been proved, may proceed to final judg- ment against the bankrupt, if the application is not made, and the assignee does not intervene. Holland v. Martin, 123 278. 81. And bankruptcy proceedings do not bar the prosecution of charges of fraud against a debtor, arrested under an execution, although the creditor has proved the debt. Stockwell v. Silloway, lOO 287; Morse v. Dayton, 125 47. 32. A bond, given to release a defendant from an arrest, after, although on a warrant issued before, adjudication, is void. Usher v. Pease, 116 440. 33. An adjudication in bankruptcy does not dissolve a mechanic's lien on a building; nor does it oust the state courts of jurisdiction to enforce it, by a suit commenced after the adjudi- cation; but the suit will be continued, to await the result of the bankruptcy proceedings. Clifton v. Foster, 103 233. 34. It will not, however, be thus continued, if the lienee has legally conveyed his interest in the land, before the bankruptcy. Glendon Co. ■». Townsend, 120 346. 35. A judgment creditor, who has not taken out execution, does not acquire a lien upon a bank- rupt's land, as against the assignee, by filing, within four months before the proceedings, a bill to subject the land to his judgment, as hav- ing been fraudulently conveyed. Trow v. Lovett, 122 571 <3.) The assignment; assignee's powers and duties. 36. An assignee in bankruptcy does not take the entire legal title to property, but only such an estate as the bankrupt had a beneficial, as well as a legal, interest in. Rhoades v. Blackiston, 106 334; Chace®. Chapin, 130 128. 37. He takes no better title than the bank- rupt, except to property conveyed or transferred to defraud creditors. Dugan v. Nichols, 125 43; Green v. Holmes, 125 46, note; Kenney «. In- galls, 126 488. 38. Where a deed of land is executed and re- corded, and a contemporaneous defeasance is not recorded, an equity of redemption vests in the grantor's assignee in bankruptcy. Moors v. Albro, 129 9. 89. But where the grantee gave a written declaration, that he held the land in trust for the grantor, after payment of a note, and the note was paid, but the grantee became bank- rupt before reconveyance, a purchaser, with no- tiqe, from his assignee, takes no title. Faxon «. Folvey. 1 10 392. 40. An estate in remainder vests in the as- signee in bankruptcy of the remainderman. Belcher «. Burnett, 126 230; Put- nam v. Story, 132 205. 41. The delivery of a certificate of shares in a bank, with a power of attorney to transfer the same, as security for a debt, more than four months before the bankruptcy, gives the trans- feree the right, as against the transferor's as- signee in bankruptcy, to a new certificate. Dickinson®. Central Nat. Bk., 129 279. 42. A policy of life insurance, payable, on a day certain, to the assured or his children, takes effect iu favor of the children, only if the as- sured dies before the day, and passes to his assignee in bankruptcy. Brigham v. Home Ins. Co., 131 319. 43. Money paid by the TJ. S., under a deci- sion of the Alabama claims commissioners, to the owner of a cargo, belongs to the assignee in bankruptcy of the owner, appointed alter the destruction of the cargo, and before the treaty. Leonard v. Nye, 125 455. 44. Where B gave an order on C, in favor of A, as collateral security for notes of B, and the order was accepted by C, on a consideration moving to him from A, and A transferred some of the notes, his assignee in bankruptcy can maintain an action on the order, for the benefit of himself and the holders of the transferred notes. Rogers v. Union Stone Co., 134 81 45. Payment to the bankrupt, after publica- tion of notice of the warrant, is void against the assignee, although made without actual knowledge. Stevens v. Mech's Sav. Bk., 101 109 46. A claim against the United States passes to the assignee of a bankrupt, although the as- signment was not executed in the presence of two witnesses, etc., as required by the act of congress, relating generally to assignments of government claims. Leonard «. Nye, 125 455 47. The general order in bankruptcy of the U. S. supreme court, requiring twenty days' notice of sale by an assignee, does not affect the title of a purchaser, bona fide. Crowley v. Hyde, 116 589. _ 48. An assignment by the register is conclu- sive evidence of the assignee's right to sue, and, if it has not been recorded, and has been lost, secondary evidence of its contents may be adduced. Hersey «. Jones, 128 473. 49. A mortgage cannot be avoided, under § 35 of the act, by an assignee, if made more than six months before the mortgagor's petition, although it was recorded within four months before; and the omission to record it, although pursuant to an agreement between the parties, does not, per se, avoid the mortgage. Folsom «. Clemence, 111 273. 50. A secret agreement by the bankrupt to pay in full a debt due to his assignee, if the latter will assent to his discharge, is fraudulent and void. Blasdel v. Fowle, 120 447. BANKRUPTCY, II, (3), (4). 119 51. A quit-claim deed of real property, by one who is a second mortgagee, and also one of the mortgagor's assignees in bankruptcy, is, in legal effect, only an assignment of the second mortgage. Bouthwick v. Atlantic Ins. Co., 133 457. 52. An action on a debt, due to the bankrupt before bankruptcy, may be brought by the as- signee in bankruptcy, in the bankrupt's name; and where the transferee in fact of a claim has commenced a suit, in the name of the trans- feror, before the latter's bankruptcy, the assignee may permit it to be thus continued. Mayhew v. Pentecost, 129 332; Reed v. Paul, 131 129. 53. Under the act of congress of June 22, 1874, knowledge, on the part of a purchaser, that a sale was fraudulent as to the other credi- tors, is necessary to enable the assignee to set aside the sale. Aliter, under the original act of 1867. Otis v. Hadley, 112 100; Lincoln v. Wilbur, 125 249. 54. The fact that a mortgage was given in the ordinary course of business, does not neces- sarily exclude the inference, that it was given with intent to prefer. Forbes t>. Howe, 102 427. 55. The provision, that a mortgage not so given is prima facie fraudulent, applies to one given within four months before the commence- ment of the proceedings, to secure a preference. Otis v. Hadley, 112 100. 56. Where a mortgagor of chattels, with the mortgagee's consent, sells the mortgaged prop- erty, and afterwards gives a new mortgage for the same debt, the new mortgage constitutes a preference within the act. Forbes v. Howe, 102 427. 57 An officer, su" d in trover by a mortgagee of chattels, for delivering the chattels to the assignee in bankruptcy of the mortgagor, after attaching them as the latter's property, may de- fend on the ground that the mortgage consti- tuted an unlawful preference. Hanson «. Herrick, lOO 323. 58 In an action by an assignee in bankruptcy, to recover goods sold by the bankrupt, on the ground that the sale was an unlawful prefer- ence, the defendant may be asked by his coun- sel, if he knew, at the time of the sale, that the seller had any fraudulent purpose to give a prefere ce, or was contemplating bankruptcy. Lincoln®. Wilbur, 125 249. 59. For various other rulings, as to the suffi- ciency, in particular cases, of evidence of such knowledge, on the part of a grantee or trans- feree, as will .enable an assignee in bankruptcy to attack a conveyance or transfer of the bank- rupt, as constituting an illegal preference of a creditor under this act, see Beals v. Quinn, 101 262; Forbes v. Howe, 102 427; Otis v. Hadley, 112 100; Rice v. Grafton Mills, 117 228- Parsons «. Topliff, 1 19 245. 60. An assignee in bankruptcy may maintain an action in a state court, to recover property conveyed by the bankrupt in fraud of the bank- rupt law. Otis v. Hadley, 112 100; Goodrich v. Wilson, 119 429. 61. Or upon a contract made with the bank- rupt before the bankruptcy. Ward v. Jenkins, (10 Met.) 51 583. 62. An assignee in bankruptcy may maintain an action in a state court, to recover land con- veyed by the bankrupt, more than six months before the commeneement of the bankruptcy proceedings, if the conveyance was fraudulent against creditors at common law. Knowlton i>. Moseley, 105 136. 63. He may maintain trover in a state court, against an officer holding goods under an at- tachment, which has been dissolved by the bankruptcy proceedings; and that without tirst applying to the court from which the process issued, for an order to deliver the property to him. Cooley », Cook, 125 406. 64. And one, from whose possession he has taken goods, claiming them as part of the bank- rupt's estate, may forthwith replevy them by process from the state court, notwithstanding U. S. St. 1867, Ch. 176, § 14. Leighton v. Harw ood, 111 67. 65. For various rulings, as to the sufficiency, in particular cases, of the proof of fraud, and of knowledge thereof, on the part of the de- fendant, which will enable an assignee in bank- ruptcy to attack a transfer or conveyance of the bankrupt, as fraudulent in fact, see Goodrich v. Wilson, 119 429; Par- sons v. Topliff, 119 245. <4.) Proof of debts. 66. Where a principal and surety, or the maker and indorser of a promissory note, be- come bankrupts, the holder may prove as against both, and receive dividends on the full amount; and where he has received a dividend from the principal or the maker, he may re- cover the balance against the surety or in- dorser. Nat. Mt. Wollaston Bk. v. Porter, 122 308; New Bedford F. C. Sav. Bk. v. Union Mill Co., 128 27. 67. So the holder is not debarred from taking judgment against the maker of a note, by his proving the debt in bankruptcy against the indorser. Athol Nat. Bk. s. Hingham M. Co., 121 399. 68. And the fact that the plaintiff has proved the note, is no reason for postponing judgment till the dividend is declared. New B. F. C. Sav. Bk. «. Union Mill Co., 128 27. 69. Where rent is payable by a bankrupt, under a lease, at stated times during the term, the rent is, under the U. S. statute, deemed to accrue from day to day, and the landlord can maintain an action against the bankrupt, only for that part which accrued after the bank- ruptcy. Treadwell v. Marden, 123 390. 70. The plaintiff's liability for costs, in an action pending at the time of his bankruptcy, is not a personal debt, and judgment may be taken for the costs. Dows «. Griswold, 122 440. 71. Damages, awarded by a verdict in an action for slander, upon which judgment has 120 BANKRUPTCY, II, (4), (5), (6). not been entered, do not constitute a provable claim against the defendant Zininier ». Schleehauf, 115 52. 72 A bond of indemnity, given by B to A, against debts for which they are jointly liable, creates a provable claim; and where judgment is taken against A and B upon such a debt, and B becomes bankrupt, and A pays the whole, he cannot recover on the bond. Fisher -j. Tifft, 127 313. [See further, as to debts provablc,porf, II, (6).] 73. Proof of a provable debt is a bar to a suit for that cause, commenced before the bank- ruptcy. Bennett®. Goldthwait, 109 494; Cook v. Coyle, 113 252. 74. Proof of the debt is not a bar to civil proceedings before a magistrate on charges of fraud. Stockwell v. Silloway, 105 517. Morse v. Dayton, 125 47. 75. Proof of a debt, against a bankrupt manufacturing corporation, and receipt of a dividend thereupon, do not prevent the creditor from maintaining an action against the corpo- ration, to recover a judgment as a foundation for charging the stockholders. Charnberlin ®. Huguenot M. Co., 118 532. 76. Nor do they prevent the creditor from maintaining such an action against officers and stockholders. Barre Nat. Bk. ».' Hingham M. Co., 127 563. 77. A creditor, who has proved a debt for goods sold to the bankrupt, cannot maintain replevin for the goods, on the ground that he did not sell them, or was induced to sell them by fraud of the bankrupt. Ormsby «. Dearborn, 116 386; Sea- vey D.Potter, 121 297. 78. Under the original bankrupt act of 1867, proof of a debt did not bar the creditor's action, if the bankrupt failed to obtain a discharge. Valpey®. Rea, 124 99. C5.) Composition, 79. A composition does not bar a creditor, whose debt is stated at less than its true amount, if he objects to the composition. Hewes v. Rand, 129 519. 80. A tender to each creditor is not necessary, to give effect to a composition, under the act of 1874; notice of readiness to pay at the fixed time and at a reasonable place, suffices. Home Nat. Bk. v. Carpenter, 129 1. 81. But if there is neither tender nor notice, a creditor, not assenting to a composition, is not barred. Pierce ■». Gilkey, 124 300. 82. A composition, wi'.h payment or tender, bars a judgment in favor of a creditor, whose debt would be barred by a discharge. Denny v. Merrifield, 128 228. 83. A composition, the proceedings upon which otherwise conform to the act of 1874, cannot be impeached collaterally by a creditor, who would be barred by it, on the ground that it was not confirmed by the bankrupt's signa- ture, or was obtained by his fraudulent acts. Farwell v. Raddin, 129 7; Home Nat Bk. ®. Carpenter, 129 1 84. An attachment, within four months of the commencement of the proceedings, is dis- solved only by a discharge, not by a composi- tion. Sage v. Heller, 124 213, Sullivan v Langley, 124 264. 85. Nor does a discharge, .without an assign- ment, pursuant to a composition, authorize a special judgment in such a case, under St. 1875 Ch. 68, P. §., Ch. 171, §8 23, 24. Denny®. Merrifiela, 128 228; Corn- stock ®. Peck, 128 231, note [See, further, as to such a special judgment, At- tachment, IV (2).l 86. A creditor, by consenting to a composi- tion, does not discharge a surety. Guild v. Butler, 122 498. 87. Where the maker and indorser of a note become bankrupts, and each makes a composi- tion, but the indorser's composition is not ac- cepted by the holder, and, after the maker has performed his composition, the indorser offers to pay the holder his proportion, less the amount paid by the maker, the indorser is liable for the full amount of the note, less the sum paid by the maker Nat. Mount Wollaston Bk. v. Porter, 122 308. 88. Where the amount of a debt, and the name of the creditor, are omitted or erro-. neously given in the schedule, the composition does not bar him, if he is not an assenting creditor Woolsey ®. Hogan, 124 497; Mac- Mahon v. Jacobs, 129 524, note. 89. And in such a case he may sue, as if no proceedings for a composition had been had. Hewes v. Rand, 129 519. 90. And the creditor's right to disregard the composition is not affected by the fact, that a person has, without his authority or knowledge, received his proportion, and signed his name to a receipt, if he refused to take the money, on learning the fact. Stone v Simonds, 131 457. 91. A release, upon composition, of a bank- rupt director or stockholder of a corporation, as indorser of the corporation's note, does not release him from a personal liability as such di- rector or stockholder, for that and the other corporation debts. Barre Nat. Bk. «. Hingham M. Co., 127 563. 92. A creditor is not barred, as against the indorser of a promissory note, by proving an-, other claim against the maker, and accepting a composition upon the same, where the note was not proved or included in the statement, made by the bankrupt to his creditors. Pratt v. Chase, 122 262. C6.) Tlie discharge. [As to pleading the discharge, and attacking the same on the ground of fraud, illegality, etc., see, also, Insolvent, VIII, (5); Pleading, IV; V.] 93. Claims not provable are not barred by the discharge. Nat. Mt. Wollaston Bk. ». Porter, 122 308. [As to what debts are provable, see, ante, II, (4).] 94. A discharge does not bar an action for de- ceit. BANKRUPTCY, II, (6), (Y)— BAERATKY. 121 Morse v Hutchins, 102 439; Turner e. Atwood, 124 411 95 Or by an insurance company, to recover against one who burned his buildings, where the insurance money was collected by his as- signee. Merchants' Ins Co. ■». Abbott, 131 •397. 96 Or a debt, created while acting in a fidu- ciary character. Cronan» Cotting, 104 345, Wood- ward v. Towne, 127 41, Light v Mer- riam, 132 283 97. Or civil proceedings before a magistrate, on an allegation of fraud Stockwell v. Silloway, 105 517. 98. Or an action to enforce the personal lia- bility of a director or stockholder of a corpora- tion Barre Nat. Bk i>. Hingham M. Co., 127 563. 99. Or an action upon a judgment recovered in this Commonwealth, or in another state, whose law and practice are not shown to be different from ours, after the discharge. Bradford v. Bice, 102 472. 100. "Where two issues are tried in an action, one of fraud by the defendant, and one of his minority, and, after a general verdict for the plaintiff, the defendant obtains his discharge, and pleads it in bar of judgment, the plaintiff cannot move for judgment, notwithstanding the plea, but must file a replication, alleging the fraud Kellogg v. Kimball, 135 125 101. An action of trover is barred by the dis- charge, if the conversion was merely technical without any actual wrong, Brenner v. Duard, 126 400; Hayes v. Nash, 129 62. 102 So is an action against the acceptor of a bill of exchange, in favor of an indorser, who has since paid it. Hunt «. Taylor, 108 508, 103. Where a person, having a debt exempted from the operation of a discharge, takes a note or other executory contract to pay it, the debt is barred. Light v. Merriam, 132 283. 104. A discharge cannot be impeached col- laterally, for a fraudulent omission of the cred- itor, or a fraudulent omission to give him notice; or a fraudulent conveyance by the bank- rupt. The remedy is by application to the bankruptcy court to annul the discharge. Burpee v. Sparhawk, 108 lll;Wayu. Howe, 108 502; Black v. Blazo, 117 17. 105. Where the plaintiff recovers judgment in the superior court, and the defendant brings error to the U. S. supreme court, and, pending the writ of error, obtains his discharge as a bankrupt, the plaintiff not proving his debt, he cannot try the question of the effect of his dis- charge, on a motion by the plaintiff to affirm the judgment and for costs, in accordance with the mandate of the U S. supreme court. Goodrich v. Wilson, 135 31. 106. Where a bond was given to dissolve an attachment, conditioned for payment of the final judgment within thirty days after recov- ery, and, three days before the expiration of the thirty days, the principal filed his petition in bankruptcy, upon which he was duly dis- charged, and two months after the adjudication in bankruptcy, the surety paid the judgment, it was held, that the surety's claim was prova- ble, and his action against the bankrupt was barred by the discharge. Fairbanks «. Lambert, 137 373. (7.) New promise to pay debt discharged. 107. A discharge in bankruptcy is waived by a new promise to pay the debt, without^ a new consideration, but the mere payment of interest will not revive it Way v Sperry, (6 C.\ 60 238; Cam- bridge S Inst'n v. Littlefield, (6 C.) 60 210. 108 An expression of intention, or of a hope, to pay at a future day, without a distinct promise, does not suffice, but, if the case is one where oral evidence is allowed, it is for the jury to say whether such a promise can be in- ferred. ' Pratt v. Russell, (7 C ) 61 462; Can- terbury U. Soc. u.Winkley, (7 G.) 73 460. 109 Where there is a new promise, the action is properly upon the debt, not the promise. Maxim « Morse, 8 127; Way ». Sperry, (6 C.) 60 238. 110. Under the statute, requiring the new promise to be in writing, the rule is, as before, that an expression of a hope, intention, or ex- pectation to pay, contained in a letter, but fall- ing short of a distinct and unequivocal prom- ise, does not suffice. Elwell®. Cumner, 136 102; Bigelow v Noiris, 139 12; Bigelow *. Norris, 141 14. 111, Where the bankrupt orally promises to pay a creditor, if the latter will assent to and assist him to obtain his discharge, a written promise, given after the discharge is obtained, is void Tirrelli) Freeman, 139 297. [For parallel cases under other statutes, see In- solvent, VIII, (i) ; Limitation, "V, (5).] Bar. [See Fobmer Adjudication ; Pleading.! Bargain and sale. [See Deed.] Barratry. ( Criminal law.) 1. A common barrator is a common mover, exciter, or maintainer of suits and quarrels, either in courts of justice or in the country, with intent to oppress Comm. * McCullocb, 15 227, per Shaw, Ch J., in Comm. d Davis, (11 P.) 28 432. 122 BARRATRY— BASTAED, I. 2. Three distinct acts of barratry, at least, are requisite to constitute a common barrator; but qu., whether three will always suffice. Comm. v. McCuUoch, 15 227; Comm. t>. Davis, (11 P.) 28 432; Comm. v. Tubbs, (1 C.) 55 2. 3. A person does not commit barratry by purchasing negotiable promissory notes, and suing the maker thereupon, although it is done to oppress, harass, and otherwise injure him. Bragg v. Eaymond, (11 C.) 65 274. 4. On the trial, a magistrate's order, requir- ing the party complained of by the defendant to recognize for his appearance, is not conclu- sive evidence of probable cause; but it is ad- missible for the consideration of the jury, with other evidence. Comm. •». Davis, (11 P.) 28 433. [As to the sufficiency of the indictment, and the rule requiring a bill of particulars, see Bill of Particulars ; Indictment, VIII, (9).] Barratry. (Maritime law.) 1. Barratry consists in wilful acts or conduct of the master or mariners, done for some un- lawful or fraudulent purpose, contrary to their duty to the owners of the vessel. Lawton v. Sun M. Ins. Co., (2 C.) 56 500; Wilson «. Gen'l M. Ins. Co., (12 C.) 66 360. 2. And where a master is himself part owner, or hirer of the vessel on shares, he is so far the owner, that he cannot commit barra- try against the other owners. Taggardu. Loring, 16 366; "Wilson®. Gen'l M. Ins. Co., (12 C.) 66 360. 3. There can be no barratry, without fraud or crime. Wiggin ». Amory, 14 1. 4. An act of barratry is not excused or justi- fied by intoxication; otherwise, if done in a state of insanity, although caused by excessive use of liquor. Lawton v. Sun M. Ins. Co., (2 C.) 56 500. 5. A sale by the master of any of the ship's supplies or appurtenances, to obtain money for his own use, or a fraudulent conversion of money furnished by the owner to purchase them, is barratry. Lawton v. Sun M. Ins. Co., (2 C.) 56 500. 6. Negligence of the master cannot create an act of barratry, unless it is so great as to be evi- dence of fraud. Lawton v. Sun M. Ins. Co., (2 C.) 56 500. 7. Petty thefts by mariners do not constitute barratry; but where a mate received the pro- ceeds of his outward adventure in dollars, which he put into his trunk, and they were stolen by the cook and the steward, this is bar- ratry of the mariners. Stone v. Nat. Ins. Co., (19 P.) 36 34. 8. Semble, that continuing a voyage knowing that capture is inevitable, is barratry of the master. J P er Parsons, Ch. J., in Richardson v. Maine Ins. Co., 6 102. 9. Taking goods out of enemy vessels at sea, by a private ship of war, pursuant to instruc- tions from the owners, is not barratry. Ward v. Wood, 13 539. 10. Nor is it barratry for the master of a commercial ship to take out letters of marque, increase his armament and crew, and take a prize. Wiggin v. Amory, 14 1. 11. Fraudulently running a vessel on shore, and causing the survey, condemnation, and sale thereof, constitute barratry of the master. Clark «. Washington Ins. Co., 100 509. [For the effect of barratry upon a policy of in- surance, see Insurance, V, (7), (D).] Bastard and bastardy process. I. Who is a Bastard; Evidence there- upon. II. Maintenance of a Bastard Child. (1.) The statute and proceedings generally. (2.) Complaint; accusation; examination. (3.) Warrant; commitment; bond for appear- ance. (4.) Proceedings in the superior court before trial. (5.) Trial; evidence. (6.) Final order; enforcement thereof I. Who is a Bastard; Evidence thereupon. 1. Prima facie, every child born in wedlock is legitimate; and the presumption cannot be rebutted by proof of the wife's adultery, and of her deceased husband's declarations that the child is not his, or by general reputation that the child is illegitimate. Hemmenway v. Towner, (1 A.) 83 209; Haddock v. Boston & M. R. R., (3 A.) 85 298. 2. Upon a question of legitimacy, a woman may testify that she was not married before the birth of the child; but where persons are law- fully married, neither can testify that the off- spring of the mother is spurious. Canton v. Bentley, 11 441; Haddock i). Boston & M. R. R., (3 A.) 85 298; Abington ». Duxbury, 105 287. 3. The declarations of a deceased mother, that her child was born before her marriage, are com- petent. Haddock v. Boston & M. R. R, (3 A.) 85 298. 4. The presumption of the legitimacy of a married woman's child can be rebutted, only by proof, beyond all reasonable doubt, that the husband could not have been the father. Phillips v. Allen, (2 A.) 84 453; Sul- livan «. Kelly, (3 A.) 85 148. 5. A child born, eight months after marriage, will be presumed legitimate, although it has all the physical appearances of a full-time child; and proof of the mother's bad character, of her BASTARD, II, (1), (2). 123 statement that she had no connection with her husband before marriage, and of her intimacy with other men, will not rebut the presumption. Phillips v. Allen, (2 A.) 84 453. 6. Evidence that one is the son of another; is evidence that he is the legitimate son, unless the contrary is proved. Dartmouth v. Lakeville, (7 A.) 89 284. 7. By statute, if the parents of a bastard in- termarry, and the father acknowledges him, he becomes legitimate to all intents and purposes, including a settlement. Monson v. Palmer, (8 A.) 90 551. [For rulings respecting the lawfulness and proof of a marriage, see Husband and Wife, I; respect- ing the settlement of bastards, see Poor, III; re- specting the rights of bastards in their deceased parents' property, see Descent and Distribu- tion, II.] II. Maintenance of a Bastard Child. (1.) The statute and proceedings gener- ally. 8. The statute does not apply to the case of a still-born child, which, if born alive, would have been a bastard. Schramm v. Stephan, 133 559. 9 . Prosecutions under the statute are now ex- pressly declared to be " according to the course of proceedings in civil cases; " and they "shall not be entertained at a term of the superior court, held exclusively for the transaction of criminal business; but may be tried before po- lice, district, or municipal courts, when sitting for civil or criminal business." G. S„ Ch. 72, § 13; St. 1863, Ch. 127, § 5; P. S., Ch. 85, § 22. This provision supersedes numerous cases, turning _ upon the question whether bastardy proceedings were of a civil or criminal charac- ter. See Sayward v. Alfred, 5 244; Hill v. Wells, (6 P.) 23 104; Wilbur o. Crane, (13 P.) 30 284; Williams ». Campbell, (3 Met) 44 209; Cummings v. Hodg- don, (13 Met.) 54 246; Hyde v. Chapin, (2 C.) 56 77; Chapel v. White, (3 C.) 57 537; Hyde «. Chapin, (6 C.) 60 64; Smith v. Hayden, (6 C.) 60 111; Bailey v. Chesley, (10 C.) 64 284; Connelly v. Burrill, (10 C.) 64 492; Woodman v. Jarvis, (12 G.) 78 190; Hawes v. Gus- tin, (2 A.) 84 402; Southward v. Kim- ball, (5 A.) 87 301. 10. But, until the cause reaches the superior court, the proceedings are of a criminal nature. Dineen v. Williams, 138 367. 11. The proceedings cannot be taken for the support of a bastard, begotten and born of non-residents, and out of this Commonwealth; but they may be, if the child was born here, and of residents, although begotten elsewhere, and while the parents were non-residents. Grant *. Barry, (9 A.) 91 459; Mc- Fadden v. Frye, (13 A.) 95 472. 12. The proceeding-s raav he taken in the county and town wherpthe father nr the mother resides, although the child was begotten or born in another pounty or town. "Williams',,. C»mvhp\\. C3 Met.1 44 90B- Rallarv „. Holland. (15 a.) »1 50; Garlick v. Bartlett, (4 A.) 86 365. 13. It is not necessary that the complainant should be an inhabitant of, or have a settlement in, any town of the county. Hill v. Wells, (6 P.) 23 104. 14. The statute of limitations does not apply to these proceedings. Wheelwright i>. Greer, (10 A.) 92 389. 15. They may be commenced and maintained after the child's death. Meredith v. Wall, (14 A.) 96 155. (2.) Complaint; accusation; examina- tion. 16. It is no longer necessary that the husband of a married woman should join with her in the complaint. Sullivan v. Kelly, (3 A.) 85 148. Aliter, formerly, Wilbur v. Crane, (3 P.) 30 284. See, also, Hyde v. Chapin, (2 C.) 56 77. 17. Formerly the woman only could take the proceedings. Comm. v. Cole, 5 517; Hill v. Wells, (6 P.) 23 104; Cummings «. Hodgdon, (13 Met.) 54 246; Wheelwrights. Greer, (10 A.) 92 389. 18. Under the existing statute, if the woman neglects to prosecute a complaint made by her, the officer is to prosecute that complaint, not make a new complaint. Neglect is sufficient without a request. Wheelwright v. Greer, (10 A.) 92 389. See, also, Callinan v. Coffey, (3 A.) 85 477; Jones*. Thompson, (8 A.) 90 334. 19. In the superior court, the officer must procure the leave of the court; but if objection for want of leave is not seasonably taken, the irregularity is cured. Noonan «. Brogan, (3 A.) 85 481 20. Under P. S., Ch. 85, § 2, the complaint may be maintained, where an adopted daughter has become pregnant, by the overseer of the poor of the town where the adoptive father has a settlement. Washburn v. White, 140 568. 21. The complaint will not be dismissed for formal or technical irregularities in its address, or the certificate to the jurat, or any other de- fect which might be disregarded or amended in a civil action. Hill v. Wells, (6 P.) 23 104; Richard- son v. Burleigh, (3 A .) 85 479; Maloney v. Piper, 105 233; Sabins ». Jones, 119 167. 22. A justice of a police or district court may receive the complaint, and issue the war- rant, while the court is not in session. Richardson v. Burleigh, (3 A.) 85 479; Sabins v. Jones, 119 167. 23 If no proceedings have been had, for five years after issuing the warrant, the com- plaint is not pending, so as to abate a new com- ^^Meredith .. Wall, (14 A.) 96. 155. 24 The complaint need not be in writing; but the complainant's accusation and examina- tion must be in writing; they may be reduced to writing by a person, other than the magis- 124 BASTAED, II, (3), (4). trate, but they must be signed and sworn to by the complainant. Smith v. Hayden, (6 C.) 60 111; Sayles «. Fanning, (13 G.) 79 538. 25. But, after a verdict of guilty, judgment will not be arrested, because the accusation and examination were not signed, if the complaint was signed. Williams v. Copeland, (5 A.) 87 209. 26. A variance between the complainant's ex- amination before the magistrate, and her subse- quent complaint to the court, respecting the time when the child was begotten, is not fatal. Sayles v. Fanning, (13 G.) 79 538. 27. A paper, signed and sworn to by the com- plainant, entitled her "voluntary complaint, examination and accusation," containing all the matters required to be shown, is a sufficient complaint, accusation, and examination. Gallary v. Holland, (15 G.) 81 50. (3.) 'Warrant; commitment; bond for appearance. 28. The statute now provides that the war" rant shall be returnable "before the same, or any other court or trial justice having jurisdiction thereof in the county; " and shall run through- out the state. G. S., Ch. 72, 8 1; P. S., Ch. 85, § 1. For rulings under the former statute, see Fisher «. Shattuck, (17 P.) 34 252; McCall v. Parker, (13 Met.) 54 372; Comm. ■». Henry, (7 C.) 61 512; Tilley v. Damon, (11 ,C.) 65 247; Williams v. Copeland, (5 A.) 87 209. 29. Defects in the proceedings, after the issu- ing of the warrant, are cured by the defendant appearing before the magistrate, and giving bond for his appearance in the superior court. Collins v. Conners, (15 G.) 81 49. 30. The security for appearance in the supe- rior court must be a bond, not a recognizance. Merrill v. Prince, 7 396; Johnson v. Bandall, 7 340; Ex parte McHugh, (3 C.) 57 452; Towns v. Hale, (2 G.) 68 199. 31. An infant may execute a valid bond for that purpose. McCall v. Parker, (13 Met.) 54 372. 32. A bond for appearance in the superior court is valid, although executed by only one surety, and although it contains technical and formal errors or omissions not affecting the substance. Chapel v. Congdon, (18 P.) 35 257; McCall v. Parker, (13 Met.) 54 372; Locke v. Johnson, (3 A. ) 85 153; Hol- brook v. Klenert, 113 268. 33. Such a bond for appearance is valid, where the defendant, on being brought before the police court, waives an examination, and gives the bond, pursuant to the order of that court. Hannan v. Doherty, 136 567. 34. But where the proceedings are erroneous in matter of substance, the bond is void, as exe- cuted under duress, although the defendant ap- peared, but did not plead, in the superior court. Fisher v. Shattuck, (17 P.) 34 252. 35. The bond is properly continued by an entry on the docket, although not on the bond itself. Adams v. Whiting, (12 P.) 29 196. 36. A person arrested and committed, for failure to give the bond, is not entitled to the benefit of the poor debtor's act. Doherty «. Clark, (3 A.) 85 151. 37. The superior court cannot, upon the with- drawal of the sureties, order the commitment if the defendant, as upon a surrender by hail; hut only to give a new bond, and to be committed until he does so. Ex parte McHugh, (3 C.I 57 452- Doherty «. Clark, (3 A.) 85 151; Inn Hanlan, 119 59. ' 38. The sureties cannot surrender their prin- cipal into court, during the pendency of an ac- tion against them on the bond. Locke v. Johnson, (3 A.) 85 153. 39. The bond is forfeited by non-appearance, without a decree of filiation; but in that case nominal damages can only be recovered. Jordan ». Love joy, (20 P.) 37 86; Mc- Grath ^.Conway, 116 360. See, under the former statute, Adams v. Whiting, (12 P.) 29 196. 40. Under the present statute, a decree of filia- tion may be made, although the defendant does not appear; and if judgment is taken for the penalty before the decree, further execution, after the decree, may be granted on scire facias. Young v. Makepeace, 103 50; Mc- Grath ». Conway, 116 360; Tracy «. Howe, 119 228. 41. It is not necessary that the defendant's default should be entered of record, to charge Hip sureties Hodge ii. Hodgdon, (8 C.) 62 294; Towns v. Hale, (2 G.) 68 199. 42. The bond is discharged by the def endant's attendance at court, as long as the action is pending, and at the final order, and his submis- sion to arrest, for failure to perform the final order; and oral evidence of such attendance is competent. Towns ». Hale, (2G.) 68 199; Power d. Fenno, (10 G.) 76 249; Young v. Makepeace, 108 233. 43. The sureties are not liable beyond the penalty; but where a decree of filiation and for maintenance is made by default, they are not entitled to have credited upon the penalty the sums, which the defendant has paid, pursuant to the decree, before the action against them. Barnes ». Chase, 128 211. (4.) Proceedings in the superior court before trial. 44. An attested copy of the record before the magistrate may be filed in the superior court, at any time before the trial. Packard v. Lawrence, (15 G.) 81 483; Hawes v. Gustin, (2 A.) 84 402. 45. A woman, who has made a complaint, may settle it, without the consent of any of the officers who might have presented it, they not having intervened. Haley e. Whalen, 121 533. See, under the former statute, Wilbur v. Crane, (13 P.) 30 284. 46. And the sureties in the bond may de- fend, on the ground that it was in fact settled, and afterwards, by concert between the par- ties, fraudulently entered in court and prosecu- ted. Haley v. Whalen, 121 533. BASTAED, II, (4), (5). 125 47. Before the act of 1862, P. S., Ch. 85, § 19, a public officer could not settle for a fixed sum. Wheelwright 9. Sylvester, (4 A.) 86 59. 48. It is usual, after the birth of the child, to file a supplemental complaint in the superior court, which is not the foundation of the pro- ceedings, but a more formal mode of stating the facts and framing the issues. It need not be sworn to, and may be signed by the com- plainant's attorney. Eice v. Chapin, (10 Met.) 51 5; Chapel 9. White, (3 C ) 57 537; Burt 9. Ayers, 116 263;Reed9.Haskins, 116 198; Sabins 9. Jones, -119 167. 49. Where a supplemental complaint is filed, and the defendant is ordered to plead thereto, the issue is deemed to be joined upon the new complaint. Smith v. Hayden, (6 G.) 60 111. 50. As to the title and conclusion of the com- plaint, see Comm. «. Moore, (3 P.) 20 194; Smith 1>. Hayden, (6 C.) 60 111. [As to an amendment thereof, see Amendment, V.] 51. Under the former statute, the com- plaint, upon which the defendant was tried, must have averred, in addition to the other facts, to bring the case within the statute, that the complainant, during her travail, accused the defendant of being the father of the child. Drowne v. Stimpson, 2 441; Stiles 9. Eastman, (21 P.) 38 132; Rice v. Chapin (10 Met.) 51 5; Murphy 9. Spence, '9G.) 75 399. [See, also, post, II, (5). 52. An omission in the complaint to aver dis- tinctly that the child was born a bastard, may be disregarded, upon a motion in arrest of judgment, if that fact appears inferentially. Chapel v. White, (3 C.) 57 537. See, also, Burt v. Ayers, 116 263. 53. An officer who prosecutes, by reason of the woman's neglect, must aver all the facts, requisite to sustain the prosecution. Jones 9. Thompson, (8 A.) ,90 334. 54. An objection to the complaint cannot first be taken in the supreme judicial court, where the cause has been brought there upon exceptions. Murphy v. Spence, (9 G.) 75 399. 55. The complainant must enter the action at the first term; -but if the court, at a subsequent term, allows the action to be entered as of the proper term, and the respondent is defaulted and charged, the proceedings are regular, and a surety upon the bond is liable, it not appear- ing that he has been injured by the delay. Dineen ». Williams, 138 367. (5.) Trial; evidence. 56. The proceedings will not be dismissed upon the trial, because the record before the magistrate recites that he found the defendant "guilty of the offence charged against him." Mmphy 9. Spence, (9 G.) 75 399. 57. The superior court has original, not ap- pellate, jurisdiction, in cases of this kind; and the cause may be tried in that court, upon certified copies of the papers below. Kennedyo. Shea, 110 152; Biggane v. Ross, 126 233. 58. Irregularities and omissions in the pro- ceedings in the court below, not amounting to fatal defects, are not available in the superior court to the defendant. Smith v. Hayden, (6 C.) 60 111; Hawes 9. Gustin, (2 A.) 84 402; Mc- Cabe v. Dowd, (7 A.) 89 477; Thomp- son 9. Kenney, 110 317; Duhamell 1>. Ducette, 118 569; Hannan 9. Doherty, 136 567. . 59. Upon the trial, it suffices to prove the charge by a preponderance of evidence. Richardson v. Burleigh, (3 A.) 85 479; Young s. Makepeace, 103 50. 60. A married woman may prove her own criminal intercourse, by which the child was begotten. Dickerman ». Graves, (6 C.) 60 308. [As to the presumption of legitimacy, where the complainant is a married woman, see ante, I.] 61. The complainant is now a competent wit- ness for all purposes, and the jury may convict the defendant upon her testimony alone. Murphy v. Spence, (9 G.) 75 399; Noonan v. Brogan, (3 A.) 85 481. 62. For rulings as to the competency of wit- nesses, under the former statute, see Howard v. Packard, (17 P.) 34 380; McManagil v. Ross, (20 P.) 37 99; Chapel v. White, (3 C.) 57 537; Con- nelly v. Burrill, (10 C.) 64 492. 63. She cannot corroborate her testimony by the declarations of her physician during her travail, as to her condition and peril. Eddy 9. Gray, (4 A.) 86 435. 64. Before the enactment of the G. S., it was essential to the maintenance of the prosecution, that the complainant should have accused the defendant, at the time of her travail, of being the father of the child; and that she had continued constant in such accusation. And that fact must have been proved by testimony other than her own, before she could become a witness. Drowne 9. Stimpson, 2 441; Comm. 9. Cole, 5 517; Bacon v. Harrington, (5 P.) 22 63; Maxwell 9. Hardy, (8 P.) 25 560; McManagil 9. Ross, (20 P.) 37 99; Stiles 9. Eastman, (21 P.) 38 132; Rice 9. Chapin, (10 Met.) 51 5; Bailey 9. Chesley, (10 C.) 64 284. 65. But now such proof is not necessary; it is competent and may be used to corroborate her testimony; and the fact may be proved by her own testimony. Murphy 9. Spence, (9 G.) 75 399; Savage v. Reardon, (11 G.) 77 376; Gal- lary v. Holland, (15 G.) 81 50; Hawes 9. Gustin, (2 A.) 84 402; Reed 9. Has- kins, 116 198; Ray 9. Comn, 123 365. 66. Where such an accusation was made, and upon cross-examination the complainant stated that her mother had informed her, before her confinement, that she must make it, it is com- petent for her to show that she had previously informed her mother that the defendant was the TfltflPr Mange 9. Holmes, (7 A.) 89 136. 126 BASTARD, II, (5), (6). 67. But where such an accusation was not made, she cannot show that she had never ac- cused any other man. Kay v. Coffin, 123 365. 68. "Where the defendant, upon the trial, con- tends that another man was the father of the child, evidence that the latter sent the com- plainant drugs to produce an abortion is ad- missible; but evidence of his declarations that he was the father, or acts which did not take place in the complainant's presence or with her knowledge, are not admissible; nor is evidence admissible, on the part of the complainant, of want of resemblance between him and the child. Young v. Makepeace, 103 50. 69. And, generally, in the absence of proof ' of a conspiracy between the complainant and a third person, evidence of the latter's acts and declarations, in the complainant's absence, are not admissible against her. O'Brine «. McNulty, 122 474. 70. The jury may take into consideration the resemblance of the child to the defendant; but upon inspection, not the opinions of witnesses. Finnegan •». Dugan, (14 A.) 96 197. See, also, Eddy v. Gray, (4 A.) 86 435. 71. Evidence is competent, that about the time of the child's birth, the defendant asked a witness whether he knew of a nurse for the child, if he could settle the case. Phillips v. Hoyle, (4 G.) 70 568. 72. Evidence that the complainant was in the habit of associating with young men of bad reputation for chastity is inadmissible, nothing else being shown tending to establish sexual in- tercourse with them. Eddy v. Gray, (4 A.) 86 435. See, also, Maloney v. Piper, 105 233. 73. If a witness for the complainant denies, on cross-examination, that he ever had inter- course with her, he cannot be contradicted by proof of his admissions of such intercourse, at a period when it could not have rendered him the father of the child. Eddy v. Gray, (4 A.) 86 435. 74. Evidence of acts of sexual intercourse, or tending to prove such intercourse, between the complainant and other men, more than ten calendar months before the birth of the child, is inadmissible, in the absence of proof of an unusually long gestation. Paull i). Padelford, (16 G.) 82 263; Eddyo. Gray, (4 A.) 86 435; Parker*. Dudley, 118 602; Sabins v. Jones, 119 167. 75. So is evidence of such intercourse, less than seven and a half months before the birth of the child, in the absence of evidence that the birth was premature. Ronan v. Dugan, 126 176. 76. Or where the testimony offered does not fix the time. Force 11. Martin, 122 5. 77. As to the evidence to show that a child is a "full time" child, see Young v. Makepeace, 103 50. 78. Evidence as to the general character of the complainant for chastity is inadmissible. Comm. v. Moore, (3 P.) 20 194; Phil, lips ». Hoylc, (4 G.) 70 568; Taiill «. Padelford, (16 G.) 82 263; Eddy v Gray, (4 A.) 86 435; Parkers. Dudley 118 G02. 79. Where the complainant testifies that the child was begotten on a certain day, and there is testimony tending to prove an alibi on the part of the defendant on that day, it is not error to leave it to the jury to say, upon all the evi- dence, whether the charge is not sustained, and the complainant mistaken as to the day. Duhamell v. Ducette, 118 569. 80. Proof that the child was begotten at a different place, or on a different day, than as alleged in the complaint, is sufficient. Bassett v. Abbott, (4 G.) 70 69; Ken- nedy v. Shea, 110 152. 81. Where the defence is a conspiracy to de- fraud, the complainant may introduce a letter, written to her by the defendant, seven or eight months before the time when she alleges that the child was begotten. Beers v. Jackman, 103 192. 82. Evidence is inadmissible, that the defend- ant's relations acknowledged the child to be his; or that the complainant previously had a child, which the defendant and his relations acknowl- edged to be his. Boyle v. Burnett, (9 G.) 75 251, 83. It is not a ground of exception, that the judge said to the jury that the defendant was a competent witness, and they might regard his failure to testify in denial of the complainant's testimony, as corroborating her. Gallary v. Holland, (15 G.) 81 50. [For parallel cases on evidence, see Seduction.] (6.) Final order; enforcement thereof. 84. After a verdict of guilty, the court may, under the existing statute, make a final order of filiation in the defendant's absence. Young v. Makepeace, 103 50; Con- nolly v. Anderson, 112 60. 85. The final order may direct that he stand committed until he gives a bond, conditioned to pay the complainant a gross sum, and an addi- tional sum quarterly, until the further order of the court; and to save harmless the parents of the complainant, and the town of her settle- ment, against all charges for the maintenance of the child; and it may further award to the complainant the costs of the proceedings. Young v. Makepeace, 103 50. 86. The court cannot direct the defendant to pay money for lying-in charges, eo nomine; but it may direct payment of a larger sum for the first week, than for any succeeding week. Comm. ». Cole, 5 517. 87. The order for maintenance, etc., is to be enforced by commitment ; and a mittimus to commit an absent defendant authorizes his arrest; but the costs must be collected by exe- cution, as in other civil causes. Woodcock v. Walker, 14 386; Young v. Makepeace, 108 233; Connolly «. Anderson, 112 60. BAWDY-HOUSE— BETTEEMENTS. 127 Bawdy-house and prostitution. See, so, Disorderly House.] 1 . The statute against enticing or taking away an unmarried woman, 'for the purpose of pros- titution, refers to a common indiscriminate sexual intercourse for hire, and is not violated hy a man's enticing away a woman for the sole purpose of illicit sexual intercourse with him- self. Comm. v. Cook, (12 Met.) 53 93. 2. The statute against keeping a house " re- sorted to for prostitution or lewdness," is not confined to a house kept for open and public prostitution; it includes a place frequented for the purpose of illicit intercourse, whether pub- lic or private; hut not the suffering of a single private act of illicit intercourse. Comm. ®. Lambert, (12 A.) 94 177. 3. Keeping a house of ill-fame is a common law offence. Comm. v. Harrington, (3 P.) 20 26; Jennings v. Comm., (17 P.) 34 80. 4. A married woman is punishable for this offence, whether she lives alone or with her husband; and the husband, who lives in the house with his wife, is punishable, although she carries on the business, and receives the profits. Comm. v. Lewis, (1 Met.) 42 151; Comm. v. Wood, 97 225; Comm. i>. Cheney, 114 281. 5. The keeper of a house of ill-fame may be indicted and punished under either G. S., Ch. 87, § 6; P. S., Ch. 101, § 6; or G. S., Ch. 165, § 13; P. S., Ch. 207, § 13. Comm. v. Ballou, 124 26. 6. An indictment for keeping such a house is sustained by proof that the defendant aided and assisted another in so doing. Comm. o. Gannett, (1 A.) 83 7. 7. It is not necessary to prove that the house was kept for lucre or gain. Comm. a. Wood, 97 225. 8. Letting a house, with intent that it shall be used for the purpose of prostitution, is a common law offence. Comm. i). Harrington, (3 P.) 20 26; Comm. v. Willard, (22 P.) 39 476; Comm. v. Cook, (12 Met.) 53 93. 9. The character of the women frequenting the house, and their conversation, are compe- tent evidence on the trial of the indictment. Comm. v. Kimball, (7 G.) 73 328; Comm. i). Gannett, (1 A.) 83 7. 10. Proof of solicitation by a woman, on the piazza outside the house, with a statement by Jier that defendant kept the house, may be left to the jury, with instructions that, unless they found that the defendant heard the conversa- tion, they must disregard it. Comm. i). Sliney, 126 49. 11. And proof of the conversation of men coming out of the house, without any evidence that the defendant was present, is not admis- sible. Comm. ». Harwood, (4 G.) 70 41. 12. As to the sufficiency of the proof, where the defendant kept adjoining buildings, in one of which unchaste conduct was proved, see Comm. v. Dam, 107 210. [For rulings upon the complaint and indictment, see Indictment, VIII, (10).] Beach. [See Boundary Line, II, (3); Flats; Sea Shore.] Beggar. [See Idle and disorderly Person.] Benevolent association ; beneficiary association. [See, also, Charity ; Loan and Fund Associa- tion ; Religious Association ; Taxation, II, (4) ] _ 1. Where an incorporated benevolent asso- ciation undertakes to pay a certain sum upon a member's death, if he is then in good standing, and he is suspended by a subordinate lodge, and, having notice thereof, does not appeal to the supreme lodge, as the constitution allows, his administrator cannot maintain an action, upon proof that he ought not to have been sus- pended. Karcher «. Knights of Honor, 137 368. See, also, Grosvenor v. United Soc of Believers, 118 78; Dolan «. Court Good Samaritan, 128 437; Chamber- lain i). Lincoln, 129 70. 2. An assignment of his interest by a mem- ber of a beneficiary association, organized under St. 1877, Ch. 204; P. S., Ch. 115, § 8, to a cred- itor, as collateral security for a debt, is void; but where the widow of a member, named as the beneficiary in the certificate of membership, assigned to her creditor part of the sum payable to her, and the assignment was drawn by the treasurer, and a copy kept by him, it was held that the assignment was valid, and had been sufficiently ratified. Briggs v. Earl, 139 473. 3. For various other rulings, as to the rights of a member of such an association; as to the persons entitled to the benefit of his certificate; and the liability of the executor who receives the amount due upon a benefit certificate, see American Legion of Honor e. Perry, 140 580. 4. As to the meaning of the expression " in- capable of working," in the by-laws of a benevo- lent association, see Genest v. L'Union St. Joseph, 141 417. Benevolent trust. [See Charity ; Devise and Bequest ; Trust.] Bequest. [See Devise and Bequest ; Will.] Betterments. [P. 8., Ch. 51, §§ 1 to 10, superseding- St. 1871 , Ch. 382 ; St. 1873, Ch. 288; and St. 1874, Ch. 275, part of § 2 , see Highway, IV, (6) ; Town and City, VI. As to al- lowances tor betterments in an action relating to reai p-opcrty, see Dower, I, (2); Partition, III, (2) , Eeal Action. IV, (2) ; upon a bill to redeem from a mortgage, see Mortgage, IV, (3) ; upon redemp- tion from an execution sale, see Execution, V , as between capital and income, see Income, III.] 128 BETTING. Betting; wagering; gaming. [See, also. Amusement, Stockjobbing.] 1. All wagers are unlawful in this Common- wealth, independently of the statute. Amory v. Gilman, 2 1; Balls Gilbert, (12 Met.) 53 897; McKee v. Manice, (11C.) 65 357: Sampson® Shaw, 101 145; Loves. Harvey, 114 80; Fishers. Hildreth, 117 558. 2. A party to a wager, who demands his money from the stakeholder, before he has paid it over, is not in pari delicto ; and if the stake- holder afterwards pays it to the other party as the winner, he is liable. Ball v. Gilbert, (12 Met.) 53 397; McKees. Manice, (11C.) 65 357; Fisher ». Hildreth, 117 558; Morgan ». Beau- mont, 121 7. 3. A person thus sued is not entitled to a set off, for expenses incurred in the subject matter of the wager, ex. gr., a horse race. Morgan ». Beaumont, 121 7. 4. The winner of the wager, who receives the money from the stakeholder, after notice that the payment is forbidden, is liable to the loser, although it is not the same money. Love v. Harvey, 114 80. 5. But if the party forbidding the payment, does so on the ground that he is the winner, and demands the entire stake, not merely his half, he cannot recover from the stakeholder, who pays the whole to the other party. Patterson n. Clark, 126 531. 6. A raffle is a gaming transaction, and if the winner takes the chattel from the possession of the promoter of the raffle, without his authority, he is liable in replevin. Miller v. Le Piere, 136 20. 7. Purchases and sales of stock, buyer's op- tion, are not gambling upon the fluctuations of the stock market, if the seller held, at the time of the sale, and during the time of the option, more shares than he agreed to sell. Mann v. Bishop, 136 495. 8. The loser of a wager upon a dog fight can recover the money back from the winner to whom he has paid it. Grace v. McElroy, (1 A.) 83 563. 9. Playing the game of draw-poker, with chips redeemable in money, is gaming, and will sustain a charge of fraud against one applying to take the poor debtor's oath. Chapin v. Haley, 133 127. 10. In an action under the statute, to recover back money lost at gaming, the net result of the gains and losses, at one sitting, may be de- clared for in one count, as a single loss. Hogle s. Connell, 134 150. 11. Under the statute, an action by the loser to_ recover back money so lost, can be main- tained, only if brought within three months, although he is an infant; and the loser's execu- tor is subject to the same limitation. Babcock v. Thompson, (3 P.) 20 446; Plummer n. Gray, (8 G.) 74 243; Cole v. Groves, 134 471 ; French s. Marshall, 136 564. 12. An action by the loser to recover the money from the owner, tenant, or occupant of the house wherein it was lost, is subject to tho same limitation. Low v. Blanchard, 116 272. 13. Semble, that a contract to train a horse for racing for bets, is illegal. Harris v. Woodruff, 124 205. 14. The action by a third person to recover treble the sum, is under a penal statute, and is barred within a year. Cole v. Groves, 134 471; French v Marshall, 136 564. 15. The wife of the loser may maintain the action as a third person. Read v. Stewart, 129 407. 16. The third person's action cannot he de f eated by proof that the loser is to be benefited by the recovery. Morris v, Farrington, 133 466. 17. The covin and collusion, which bar a third person's action to recover treble the amount, are covin and collusion between the loser and the winner, not between the loser and the third person, whereby the former delays his suit, to enable the latter to sue for the penalty. Cole ». Applebury, 136 525; French v. Marshall, 136 564. 18. Where an infant, losing money at gam- bling, fails to sue in three months, his guardian may sue as a third person for treble the amount, even if he knew of the loss within the three months. French v. Marshall, 136 564. 19. A loan, knowingly made to enable the borrower to gamble, or the indorsement, with knowledge, of a check given for a gambling debt, is illegal and void; and the lender cannot recover from the borrower; nor can the indorser, who has paid the check, recover from the maker or a prior indorser. White v. Buss, (3 C) 57 448; Scol- lans v. Flynn, 120 271. 20. Where a carrier, to whom money has been delivered by one for transmission to another, loses it at gaming, the person deliver- ing it can recover it from the winner. Mason v. Waite, 17 560. 21. Playing a game of hazard, to determine who shall pay for the liquor, is gambling, and will support an indictment for keeping a gam- ing house. Comm. ». Taylor, (14 G.) 80 26; Comm. v. Gourdier, (14 G.) 80 390. 22. Game cocks are not implements of gam- ing, within the statute authorizing the seizure of such implements. Coolidge v. Choate, (11 Met.) 52 79. 23. The municipal court of Boston has jurisdiction to issue a search warrant for imple- ments of gaming, and to cause them to he destroyed under the statute. Atty.-Gen'l v. Boston Municipal Ct., 103 456; Comm. n. Gaming Imple- ments, 119 332. 24. Semble, that money seized under such a search warrant cannot be forfeited. Atty.-Gen'l v. Boston Municipal Ct., 103 456. 25. Such implements cannot be destroyed, and furniture, fixtures, etc., thus seized, can- BILL OF EXCHANGE AND PEOMISSOEY NOTE, I, (1). 129 not l)e forfeited and sold, without notice to the persons interested. Atty.-Gen'l v. Boston Municipal Ot., 103 456. 26. The officer, under a general warrant to search for and seize, is not limited to articles liable to condemnation. Comm. ■». Gaming Implements, 119 332. 27. See further, as to the sufficiency of an information, filed upon the return of such a warrant; the order for service of notice; the service thereof; and the return of the officer thereupon; and of the complaint on which the warrant was issued. Comm. v. Gaming Implements, 119 332; Comm. v. Gaming Implements, 141 114. 28. The claimant of gaming implements cannot, for the first time, show on appeal, that the order of notice was not properly served. Comm. v. Gaming Implements, 141 114. 29. At the trial of a complaint for the un- lawful keeping of gaming implements, evi- dence is competent, that the place was resorted to for gaming, before the day of the seizure. Comm. v. Gaming Implements, 141 114. [As to cock-fighting, billiards, and other games, see Amusement!] Bigamy. [See Polygamy.] Bill of exckasge and promissory note. I. Nature, Requisites, and general Val- idity. (1.) Form; execution; interpretation. (2.) Contingent notes or drafts, and notes payable in chattels. (3.) Other non-negotiable notes and drafts. (4.) Guarantor and surety. (5.) Filling blanks. (6.) Consideration. (7.) Acceptance of bill; authority to draw; promise to accept. II. Indorsement. (1.) What instruments are negotiable. (2.) Mode and sufficiency of indorsement. (3.) Indorser's rights and liabilities. III. Presentation, Demand, and Notice. (1.) Sufficiency of presentation and demand. (2.) Time of presentation and demand; grace. (3.) Time and sufficiency of notice. (4.) Necessity and effect of presentation, de- mand, and notice; waiver thereof. (5.) Protest. Vol. 1-17 IV. Check. V. Action. (1.) Time when it may be brought. (2.) Pleadings. (3.) Parties. (4.) When defence not admissible in action by holder. (5.) Defences in other cases. (6.) Evidence; damages. (7.) Lost, stolen, or destroyed bill or note. [For rulings relating to a bill or note made by an agent, see Agency, IV, (1); IV, (2). For additional and parallel cases upon various points, see Altera- tion or Instrument, Assumpsit; Bank and Bank- ing; Bankruptcy : Collateral Security ; Con- flict op Laws ; Contract ; Guaranty ; Insol- vent; Laches; Order; Payment; Questions op Law. etc.; Surety ; Usury.] I. Nature, Requisites, and general Val- idity. (1.) Form; execution; Interpretation. 1. It is not essential that a note or bill should be negotiable. Sibley v. Phelps, (6 C.) 60 172; Wells *. Brigham, (6 C.) 60 6. 2. But an instrument is not a promissory note, unless it contains a promise to pay money only, and that absolutely and at all events, and at a time certain. Way «. Smith, 111 523; Stults e. Silva, 119 137; Sloan v. McCarty, 134 245. [_Seepost,J, (2); 1,(3).] 3. An instrument payable, in the alternative, to one of two or more persons, is not a promis- sory note or a bill of exchange. Gray«. Bowden, (23 P.) 40 282; Os- good v. Pearsons, (4 G.) 70 455. 4. But that rule does not apply, where the instrument shows that one of the two payees is agent for the other. Noxon v. Smith, 127 485. 5. A note for " three hundred " or for " thee hundred dollars," is a good note for $300. Sweetser ». French, (13 Met.) 54 262; Burnham t>. Allen, (1 G.) 67 496. 6. An instrument is a draft or note, if other- wise sufficient, although it states for what con- sideration it is given. Wells v. Brigham, (6 C.) 60 6. 7. And the words "for value received," are not essential. Townsend v. Derby, (3 Met.) 44 363. 8. A promise to pay an additional sum, " on the same conditions as the within," indorsed upon a mortgage to secure a note, is a good promissory note. Grinnell v. Baxter, (17 P.) 34 386. 9. So is a promise to pay on demand, indorsed upon another note, or a renewal of the note. Comm. Ins. Co. v. Whitney, (1 Met.) 42 21; Daggett v. Daggett, 124 149. 10. But a mere acknowledgment, on the back of the note, that it is just, and due, without promissory words, is not a promissory note. Gray v. Bowden, (23 P.) 40 282. 130 BILL OF EXCHANGE AND PROMISSORY NOTE, I, (2), (3). 11. No particular form of words is necessary to constitute a promissory note; there need not be a promise in express terms, if an undertak- ing to pay is implied in the contents of the in- strument. Almy «. Winslow, 126 342. 12. A note, payable to the maker's order, is not a complete promissory note, until indorsed by him. Pitcher ». Barrows, (17 P.) 34 361; Little v. Rogers, (1 Met.) 42 108; Comm. *. Dallinger, 118 439. 13/ But if payable to another's order, it is payable immediately to him. Roby v. Phelon, 118 541. 14. A certificate of deposit is not a promissory note. Shute v. Pacific Nat. Bk., 136 487. 15. A note by two persons, beginning "I promise to pay," is the joint and several note of both. Hemmenway v. Stone, 7 58. 16. So is a note signed by one, with a mem- orandum subjoined signed by another, whereby he acknowledges himself "holden as surety for the above note." Hunt «. Adams, 5 358; Hunt v. Adams, 6 519. Contra, Little v. Weston, 1 156, overruled. 17. One who signs the name of another to a promissory note, without authority, or who signs a fictitious name, is not liable upon the note, al- though he adds his own name as agent; but he is liable in tort. Long v. Colburn, 11 97; Bailout). Talbot, 16 461 ; Kingman i>. Kelsie, (3C.) 57 339; Jefts B.York, (4 C.) 58 371; Abbeys. Chase, (6 C.) 60 54; Jefts ®. York, (10 C.) 64 392; Draper v. Mass. S. H. Co., (5 A.) 87 338; Bartlett v. Tucker, 104 336. [See, also, Agency, IV, (1); IV, (2).] 18. One who knowingly acknowledges his' forged signature is bound by it. Phillips it. Ford, (9 P.) 26 39; Green- field Bk. «. Crafts, (4 A.) 86 447; Bart- lett v. Tucker, 104 336; Wellington v. Jackson, 121 157. 19._ The liability of the parties must be de- termined from the instrument itself; and there is no dis inction in this respect between the drawee of a bill of exchange, and the maker of a promissory note. Tucker Man. Co. v. Fairbanks, 98 101. See, also, Bk. Br. N. A. v. Hooper, (5 G.) 71 567; Bass*. O'Brien, (12 G) 78 477; Slawson v. Loring, (5 A.) 87 340; Bar- low «. Cong. Soc. of Lee, (8 A.) 90 460. 20. Thus a note in the form "I promise to pay," signed "A, Prest. and Treas. C. com- pany," is the note of A, not of the C company. Davis v. England, 141 587. [See, also, Agency, IV, (1).] 21 . A bill drawn in England upon a firm here, accepted in England by one of the firm there, has the same effect as if accepted here, and is a foreign bill. Grimshaw v. Bender, 6 157; Barclay v. Mmchin, 6 162. 22. A bill drawn hereupon, and accepted by, a firm in New York, is a foreign bill. PhcenixBk.fl.Hussey,(12P.) 29 483. 23. An order for the payment of money, hav- ing a drawer, a drawee and a payee, is an in- land bill of exchange, although not negotiable. Cook v. Baldwin 120 317. 24. The addition of the word ' ' administrator " to the payee's name does not affect his title to the note. Plimpton «. Goodell, 126 119 (2.) Contingent notes or drafts, and notes payable In chattels. [See, also, Order.] 25. Where the payee indorsed upon a note, as part of the same transaction, a promise not to compel payment, this prevents an action ever being maintained upon it. Barnard v. Cushing. (4 Met.) 45 230. 26. An accepted draft, not negotiable, made upon an agreement that it shall take effect only if the drawer's funds in the drawee's hands are attached, is not valid until that contingency happens. Stevens «. Parker, (5 A.) 87 333; Stevens v. Parker, (7 A.) 89 361. 27. Where a note is payable at a fixed time, with a proviso that part should be deducted if a contingency happened, the proviso refers to the maturity, and the full amount is payable, although the contingency happened two years afterwards. Briggs «. Lapham, (12 Met.) 53 475. 28. A note, payable with interest at 3 per cent, if paid at maturity, and at 6 per cent, if not so paid, draws 6 per cent from its date, if not paid at maturity. Daggett ». Pratt, 15 177. 29. A note payable in chattels is not negoti- able, although payable to bearer. Clark v. King. 2 524; Gushee «. Eddy, (11 G.) 77 502 30. It is a defence to an action upon such a note, that. the maker was ready to deliver the chattels at the time and place fixed. Robbins «. Luce, 4 474. 31. Qu., whether the maker's bankruptcy, and the creditor's proof of the debt, excuse a demand. Chandler». Windship, 6 310; Stoddard v. Doane, (7 G.) 73 387. 32. An indorsee of a note, payable in chattels, cannot maintain an action against an indorser, upon demand from the maker, and notice to the indorser. Gushee v. Eddy, (11 G.) 77 502. 33. A note, payable on a condition or proviso, is not negotiable. Coolidge v. Ruggles, 15 387; Hub- bard v. Mosely, (11 G.) 77 170. See, however, Stevens «. Blunt, 7 240. (3.) Other non-negotiable notes and drafts. 34. A note payable, by its terms, at the maker's option, before maturity, is not negOtl- able. Way v. Smith, Silva, 119 137. Ill 523; Stults ». BILL OF EXCHANGE AND PROMISSORY NOTE, I, (3), (4). 131 85. A note payable "subject to the policy " is not negotiable. American Exch. Bis. v. Blanchard, (7 A.) 89 333. 36. But a mere reference to the policy does not destroy its negotiability. Taylor 0. Curry, 109 36. 37. A note, -which states that it is given as collateral security, is not negotiable. Haskell v. Lambert, (16 G.) 82 592; Costelo v. Crowull, 127 293. 38. A note payable "with interest the same as the savings banks pay," is not negotiable. Whitwell v. Winslow, 134 343. 39. Any language, contained in or put upon the note, is part of the contract; and if it im- ports that payment is not necessarily to be made in lawful money, at a time certain to arrive, and subject to no contingency, the note is not negotiable. Jones e. Fales, 4 245; Springfield Bk. v. Merrick, 14 322; Heywood 0. Perrin, (10 P.) 27 228; Makepeace v. Harvard College, (10 P.) 27 298; "Wheelock 0. Freeman, (13 P.) 30 165; Cushman o. Haynes, (20 P.) 37 132; Fiske 0. Witt, (22 P.) 39 83; Barnard 0. Cushing, (4 Met.) 45 230; Cota v. Buck, (7 Met.) 48 588; Osgood v. Pearsons, (4 G.) 70 455; Palmer «. "Ward, (6 G.) 72 340; Hubbard d. Mosely, (11 G.) 77 170; Hdskell n. Lambert, (16 G.) 82 592; Costelo v. Crowell, 127 293; Mahoney «. Pitzpatrick, 133 151. 40. But a repugnant and self-contradictory memorandum is not a part of the note, and need not be set forth in pleading. Way 0. Batchelder, 129 361. 41. A special agent has no power to bind his principal by negotiable paper, although given lor a debt which he had power to contract. Smith v. Cheshire, (13 G.) 79 318. 42. A guaranty, written on a negotiable note, but not running to the bearer, is not nego- tiable. Taylor «. Binney, 7 479; True 0. Fuller, (21 P.) 38 140; Turtle v. Bar- tholomew, (12 Met.) 53 452; Belchers Smith, (7 C.) 61 482. Contra, Blakely v. Grant, 6 386; Upham v. Prince, 12 14, overruled. 43. Such a guaranty, if it does not name the guarantee, enures to the first person who takes the note as a valid contract. Baldwin ®. Dow, 130 416; Jones 0. Dow, 137 119. 44. A note, not payable to bearer, and naming no payee, or a draft naming no drawee, is not negotiable. Brown 0. Gilman, 13 158; Ball v. Allen, 15 433; Ellis 0. Wheeler, (3 P.) 20 18. <4.) Guarantor and surety. [See. ante, arts. 16, 43, 43 : post, art. 145; Guaranty- StJKETY.] 45. Where, before the statute, St. 1874 Ch 404; P. S., Ch. 77, § 15, one put his name on the back of a note, before delivery to the payee, he became a joint promisor or a guarantor. Josselyno. Ames, 3 274; Hunt's. Ad- ams, 5 358; Hunt 0. Adams, 6 519- Hunt i>. Adams, 7 518; Sumner 0. Gay,' (4 P.) 21 311; Baker v. Briggs, (8 P., 25 122; Chaffee 0. Jones, (19 P.) 36 260; Austin v. Boyd, (24 P.) 41 64; Samson n. Thornton, (3 Met.) 44 275; Richardson v. Lincoln, (5 Met ) 46 201 ; Union Bk. «. Willis, (8 Met.) 49 504; Sweetser v. French, (13 Met.) 54 262; Sweetser v. French, (2 C.) 56 309; Bry- ant 0. Eastman, (7 C.) 61 111; Pray v. Maine, (7 C.) 61- 253; Riley n. Gerrish, (9 C.) 63 104; Draper 0. Weld, (13 G.) 79 580; Wareham Bk. n. Lincoln, (3 A.) 85 192; Cook n. Googins, 126 410; Woods v. Woods, 127 141; Spaulding 0. Putnam, 128 363. 46. As to the effect of an express agreement otherwise with the payee, see Patch v. Washburn, (16 G.) 82 82. 47. And the presumption was, that the names on the face and on the back were written simul- taneously. Union Bk. v. Willis, (8 Met.) 49 504; Benthall v. Judkins, (13 Met.) 54 265; Bickford 0. Gibbs, (8 C.) 62 154; Pear- son v. Stoddard, (9 G.) 75 199; Brown ■o. Butler, 99 179. 48. The rule was the same, where the party promised, on the back of the note, to pay it. Carver v. Warren, 5 545; White 0. Howland, 9 314. 49. So where he thus put his name, after de- livery, pursuant to a promise made before de- livery. Moies 0. Bird, 11 436; Hawkes 0. PhiUips, (7 G.) 73 284. 50. Where, however, the signature was thus written, after delivery to the payee, and not in pursuance of a prior promise, the person was liable only as guarantor, and on proof of a new consideration. Birchard v. Bartlet, 14 279; Tenney ®. Prince, (4 P.) 21 385; Mecorney i>. Stanley, (8 C.) 62 85; Green v. Shep- herd, (5 A.) 87 589; Courtney 0. Doyle, (10 A.) 92 122; Way v. Butterworth, 108 509. 51. But where the payee afterwards indorsed his name above the signature thus put on, the person thus signing was liable only as indorser; and parol evidence was inadmissible to vary his liability. Wright «. Morse, (9 G.) 75 337; Es- sex Co: ®. Edmands, (12 G.) 78 273; Clapp 11. Rice, (13 G.) 79 403; Stimson 0. Silloway, (13 G.) 79 405, note; Pow- ers 0. Eastman, (13 G.) 79 405, note; Gilson0. Stevens M. Co., 124 546; Al- len 0. Brown, 124 77; Dubois 0. Mason, 127 37. 52. The payee, however, might show the facts, where he sued to recover against the prior signers. Austin v. Boyd, (24 P.) 41 64; Riley v. Gerrish, (9 C.) 63 104. 53. The effect of the act of 1874 is, that the person, signing his name in blank on the back of a note, at any time, cannot be charged, until the maker has failed to pay, and such person has had notice thereof. Nat. Bk. of Comm. 0. Law, 127 72. 54. The receipt or waiver of such a notice may be inferred. Black 11. Ridgway, 131 80. 132 BILL OF EXCHANGE AND PEOMISSOEY NOTE, I, (i), (5). 55. And where a partner, in fraud of his co- partners, signs the firm name on the back of his own note, above the payee's, a person, who takes the note before maturity, has notice that the liability of the other partners is conditional. Nat. Bk. of Comm. v. Law, 127 72. 56. A promissory note, payable "on demand after date "is not "payable on time," so as to entitle one to notice, under the act of 1874, who put his name on the back, before delivery to the payee. Hitchings ®. Edmands, 132 338. 57. "Where a person, not a party to a note, puts his name on the back, after it is payable, and changes the rate of interest on the face of the note, he is liable as an original promisor. Qu., whether the act of 1874 would have ap- plied, if he had not changed the rate of interest. Eodocanachi v. Buttrick, 125 134. [See, also, Alteration or Instrument.] 58. A person who signs another's promissory note as maker, after it is delivered, although upon a distinct consideration, is a surety, not a joint and several promisor with the other maker. Stone v. White, (8 G.) 74 589; Howe v. Taggart, 133 284. 59. Where a note is in this form, "We, A as principal, andB as surety, promise to pay," etc., and is signed by A only, and indorsed by A and B successively, B's liability is that of a surety and joint promisor. Nat. Pemberton Bk. v. Lougee, 108 371. 60. If all the signers of a note appear to be principals, the holder by giving time to one, in ignorance of the fact that he is a principal, and the others sureties/does not discharge the latter. Wilson v. Foot, (11 Met.) 52 285. 61. And giving time to one of two sureties does not discharge the other; although the for- mer appears on the note as a joint and several maker with the principal, and the other as an indorser. Draper s. Weld, (13 G.) 79 580. 62. Where a person indorses or signs a prom- issory note in blank, with an authority, express or implied, to write a guaranty above the sig- nature, the holder may fill it up accordingly. Ulen ». Kittredge, 7 233. See, also, Tenney «. Prince, (4 P.) 21 385; Me- corney s. Stanley, (8 C.) 62 85; Scott s. Calkin, 139 529. 63. A guaranty of a promissory note is not negotiable, although the note is negotiable. Taylors. Bmney, 7 470; True s. Ful- ler, (21 P.) 38 140; Turtle n. Bartholo- mew, (12 Met.) 53 452; Belcheru Smith, (7C.) 61 482. Blakely D.Grant, 6 386, and Upham s. Prince, 1 2 14, overruled as far as they conflict. 64. A guarantor of a note is holden as such, not as surety. Oxford Bk. s Haynes, (8 P.) 25 423. 65. And a guarantor is not liable to a surety for contribution. Longley •(!. Griggs, (10 P.) 27 121. 66. Nor can a guarantor defend, in the ab- sence of fraud, on the ground that the surety was discharged by the statute of limitations, or was irresponsible. Worcester Mechs. Sav. Bk. ■». Hill, 113 *o. 67. Or that the maker's and first indorser's signatures were forged. Veazie®. Willis, (6 G.) 72 90. 68. By the law of this Commonwealth, in- dependently of the act of 1874, in order to main- tain an action against the guarantor of a prom- issory note, a demand of payment must be made in a reasonable time from the principal, and notice of non-payment given to the guarantor; and if, in consequence of the failure so to do, he suffers loss, he is exonerated. The same prompt- ness is not required, as in the case of an in- dorser; and if the guarantor suffers no loss by the delay, a demand and notice, at any time before suit brought, suffices. Oxford Bk. ». Haynes, (8 P,) 25 423; Babcocks. Bryant, (12 P.) 29 133; Tal- bot v. Gay, (18 P.) 35 534; 'Dole v. Young, (24 P.) 41 250; Whiton «. Mears, (11 Met.) 52 563; Bickford s. Gibbs, (8 C.) 62 154; Jones v. Thayer, (12 G.) 78 443. 69. Semble, that demand and notice are not necessary, where the guaranty is given after the inception of the note. Parkman s. Brewster, (15 G.) 81 271. 70. If the guarantor, in his guaranty, waives demand and notice, he is liable without them. Bickford v. Gibbs, (8 C.) 62 154. [For additional rulings under this head, see Guar- anty; Surety. As to the liability to contribution, see Assumpsit, III, (3); Surety, III, (3).] (5.) Filling blanks. (See, also. Alteration op Instrument.] 71. An instrument in this form: " $1585.90. Brooklyn, Sept. 20, 1858. after date promise to pay to the order of , Dec. 23, dollars, at , value received," deliv- ered by one with his signature appended, is so far complete, that the person receiving it may fill up all the blanks, so as not to alter its ef- fect; but the insertion of "three months," at the commencement, is a material alteration, be- cause originally it was payable on the 26th De- cember. Ives s. Farmers' Bk., (2 A.) 84 236. 72. Semble, that where a note is indorsed "A B., cashier," or "A. B., agent," the holdermay add the name of the bank or principal. Northampton Bk. v. Pepoon, 11 288; Folger s. Chase, (18 P.) 35 63. 73. Where the payee has indorsed a note in blank, and the holder sues upon it, in a third person's name, to whom the note has never been delivered, the blank indorsement may be filled up with the plaintiff's name, at the trial. Whitten s. Hayden, (9 A.) 91 408. 74. But a blank indorsement cannot be filled with any contract, other than that implied by law. Tenney v. Prince, (4 P.) 21 385; Cen- tral Bk. s, Davis, (19 P.) 36 373. 75. Nor can a special undertaking, placed on the back of the note, by the indorser, be stricken out, and another contract inserted. Taylor v. Binney, 7 479; True s. Ful- ler, (21 P.) 38 140; Turtle v. Bartholo- mew, (12 Met.) 53 452; Belchers. Smith, (7C.) 61 482. Contra, overruled, Blakely s.Grant, 6 386 ; Upham v. Prince, \& 14 BILL OF EXCHANGE AND PROMISSORY NOTE, I, (6), (7). 133 76. But if an indorsement is erroneously- filled up, it may be cancelled, and the correct contract substituted. Josselyn 1>. Ames, 3 274; Northampton Bk. b. Pepoon, 11 288; Nevins ». De Grand, 15 436. 77. The holder may fill up as a guaranty, a blank indorsement, made after delivery of the note. Tenney «. Prince, (4 P.) 21 385. 78. The holder of a note, with several in- dorsements in blank, may fill up the first with an order to pay to himself, without striking out the others, and this does not discharge the others. Cole v. Gushing, (8 P.) 25 48; Ells- worth v. Brewer, (11 P.) 28 316. 79. The holder of a non-negotiable note may fill up a blank indorsement by the payee, by writing over it an absolute promise to pay the note to him. Josselyn v. Ames, 3 274; Sweetser «. French, (18 Met.) 54 262. 80. So where a blank indorsement is made by another than the payee. Moies®. Bird 11 436 C6.) Consideration. 81. A promissory note, or bill of exchange, is open to the same defence, for want of con- sideration, or partial or total failure of conside- ration, as any other contract, unless the rights of a bona fide holder intervene; although it purports to be given for value received. Thacher ®. Dinsmore, 5 299; Bliss v. Negus, 8 46; Sanger i>. Cleveland, 10 415; Hill®. Buckminster, (5 P.) 22 391; Thompson v. Hale, (6 P.) 23 259; Parish v. Stone, (14 P.) 31 198; Daggett e. Daggett, (8 C.) 62 520; Corlies v. Howe, (11 0.) 77 125; Slade v. Hood, (13 G.) 79 97; Hodgkins v. Moulton, 100 309; Black v. Ridgway, 131 80. Contra, Bowers v. Hurd, 10 427, overruled. 82. A note, payable on demand, is open to such a defence, in the hands of a bona fide holder. Aldrich v. Stockwell, (9 A.) 91 45. 83. The same rule holds, where the note was obtained by false and fraudulent representa- tions of the payee. Bierce v. Stocking, (11 G.) 77 174. But where some of the items of an account, for which a note is given, are fraudulently •overcharged, the fraud will on'y reduce the damages pro tanto. Haycock v. Rand, (5 C.) 59 26. 84. Also, where it was given upon an illegal consideration, or in renewal of a note thus given. Ayer v. Hutchins, 4 370; Holden v. Cosgrove, (12 G.) 78 216. 85. "Where the consideration of a note is the purchase of real property, and the title fails, the defence may be maintained, although the maker entered into possession and remained in possession, until after action brought on the Bote. Curtis v. Clark, 133 509. [As to the defence to an action on a contract on either of those grounds, see Contract, II, (2), II, (3). As to the circumstances which will prevent the in- terposition of such defences hi an action by a bona fide holder, neapost, V, (4).] 86. Where the consideration of a note, given to the maker's wife, was the release of her dower in his land, his subsequent divorce, on account of her adultery, does not work a fail- ure of consideration. Nichols v. Nichols, 136 256. 87. For other cases, where the defence of fraud, or of want or failure of consideration, was sustained or overruled under the peculiar cir- cumstances of each case, see Boston Bk. v. Reed, (8 P.) 25 459; Black R. Sav. Bk. v. Edwards, (10 G.) 76 387; Gushing®. Willard, (11 G.) 77 247; Bliss i>. Tripp, (14 G.) 80 136; Hodg- kins v. Moulton, 100 307; Carr *. Sil- loway, 111 24; Nye v. Chace, 139 379. 88. An exchange of notes furnishes a suffi- cient consideration for each, and neither is an accommodation note. Whittier v. Eager, (1 A.) 83 499. 89. The burden of proving failure of consid- eration is on the maker. Jennison v. Stafford, (1 C.) 55 168. 90. The burden of proving an original con- sideration is upon the payee; but the note im- ports a consideration, if it purports to have been given for value received. Delano ■«. Bartlett, (6 C.) 60 364; Black River Sav. Bk. v. Edwards, (10 G.) 76 387- Gamwell v. Mosely, (11 G.) 77 173. [See, as to a bona fide holder,po«2, V, (4).] 91. The fact that a note or bill of exchange was given, accepted, or indorsed for the accom- modation of the maker or drawer, furnishes no defence, as against one who advanced the money upon it, or a subsequent indorser who has paid it, after being charged, although he was cogni- zant of the fact. Church v. Barlow, (9 P.) 26 547: Thompson v. Shepherd, (12 Met.) 53 811; Shaw «. Knox, 98 214; Fowler v. Strickland, 107 552; Davis «. Randall, 115 547. 92. But where a note, made for another's ac- commodation, came into the hands of a firm, of which he was a member, and the firm trans- ferred it to the plaintiff when overdue, this is a good defence. Quinn v. Fuller, (7 C.) 61 224. (7.) Acceptance of bill; authority to draw; promise to accept. [See, also, Bill ov Lading.] 93. A promise to accept a bill of exchange, made by the drawee to the drawer, after it has been negotiated, is not an acceptance, and not transferable, so as to enable the transferee to recover. Worcester Bk. v. Wells, (8 Met.) 49 107; Exch. Bk. St. Louis v. Rice, 98 288; Exch. Bk. St. Louis e. Rice, 107 37. [ A s to the general rule respecting the right of one, not a party to a contract, to sue upon it, see Con- tract, I, (3)0 134 BILL OF EXCHANGE AND PROMISSORY NOTE, II, (1). 94. But such a promise, if in writing, is a valid acceptance, in favor of one to whom the bill is negotiated on the credit of the promise. "Wilson ». Clements, 3 1; Storer v. Logan, 9 55; Carnegie v. Morrison, (2 Met.) 43 381; Murdock e. Mills, (11 Met.) 53 5; Exch. Bk. St. Louis ». Rice, 98 288; Central Sav. Bk. ». Rich- ards, 109 413. 95. It must, however, appear that the prom- ise either distinctly refers to, or describes, or includes, the bill drawn; or wa3 designed to be shown to and acted upon by others. Nevada Bk. v. Luce, 139 488. 96. The signer of a letter of credit is liable to any one drawing a bill or advancing money on the faith of it. Carnegie v. Morrison, (2 Met.) 43 381; Barney v. Newcomb, (9 C.) 63 46; Ne- vada Bk. v. Luce, 139 488. 97. If the promise is conditional, the prom- isor is not liable until the condition has been performed. Storer v. Logan, 9 55. 98. But a statement by the drawee that he has accepted the draft, but will not be able to pay it until he gets returns, is not a conditional acceptance, but evidence of an absolute accept- ance. * Wells v. Brigham, (6 C.) 60 6. 99. And the jury may infer a waiver of the condition, from subsequent acts of the prom- isor. Hough i). Loring, (24 P.) 41 254. 100. See, also, a case, where a defence that an acceptance was conditional, was not sus- tained on the facts. Mechs. Nat. Bk. v. Robins, 134 331. 101. An acceptance of a bill may, in this Commonwealth, be oral, or contained in a writing other than the bill. Grant v. Shaw, 16 341 ; Ward v. Al- len, & Met.) 43 53; Wells v. Brigham, (6C.) 60 6; Exch. Bk. St. Louis v. Rice, 98 288; Pierces. Kittredge, 115 374. Cook v. Baldwin, 120 317. 102. An acceptance is valid, although made after protest for non-acceptance. Grant v. Shaw, 16 341. 103. The words " I take notice of the above," written on a non-negotiable draft, and signed by the drawee, do not necessarily import an ac- ceptance, nor does a subsequent part payment of the draft by him. Cook v. Baldwin, 120 317. 1 04. An acceptance is not binding, unless it is delivered, or, if the draft is retained by the drawee, unless notice is given to the holder. Dunavan v. Flynn, 118 537. 105. Where one accepts a bill, drawn against a consignment, and payable elsewhere than at his residence, and purchases and remits ex- change to meet it, but the parties to the exchange fail, the loss falls upon the acceptor, not the drawer. Forbes «. Eldridge, 9 497. 106. A promise by the drawee to the holder, to pay him a bill, having no payee named, is equivalent to an acceptance. Van Staphorst «. Pearce, 4 258. 107. Where one accepts an order to pay a I third person "what money may be due me," i evidence is admissible to show what amount was then due to the drawer. Capron v. Anness, 136 271. See, also, Washburn v. Cordis, (15 P.) 32 53. 108. And where the order is to pay A and B, in proportion to their respective demands, each may maintain an action for his proportion of the amount actually due. Hatch v. Brooks, 2 293. 109. A refusal to accept, followed by a prom- ise to accept in 60 days, does not amount to an acceptance, if the holder refuses to wait, and returns the bill. Peck v. Cochran, (7 P.) 24 34; Park- hurst v. Dickerson, (21 P.) 38 307. II. Indoksembnt. (1.) What Instruments are negotiable. [See, also, ante, I, (2); I, (3), and Bond, III, (4).] 110. Strictly a note payable ' ' in foreign bills " is not negotiable, but by ancient usage in this Commonwealth, an indorsee may sue the in- dorser of such abill, upon proof of demand and notice. Jones v. Pales, 4 245 ; Sanger ®. Stimp- son, 8 260. 111. An interest coupon, in the ordinary form, payable to the bearer, when detached from the mortgage bond to which it belongs, is negotia- ble. Haven u.Grand Junction R.R., 109 88. 112. A note, otherwise negotiable, is not the less so, because it purports to be secured by real property for the payment thereof. Banning . Barrows, (17 P.) 34 361; Thayer v. Buffum, (11 Met.) 52 398; Temple v. Seaver, (11 C.) 65 314. 124. But, after dissolution by death, a note, 'payable to the firm, cannot be indorsed by the surviving partner to himself. Fowle v. Harrington, (1 C.) 55 146. 125. Joint payees may indorse a note to one of themselves, either alone or jointly with a stranger, so that an indorsee from him or them takes as indorsee. Russell v. Swan, 16 314; Goddard v. Lyman, (14 P.) 31 268. 126. But executors must all join in the in- dorsement of a note payable to them as execu- tors. Smith v. "Whiting, 9 334. 127. A note payable to a bank may be in- dorsed "A. B., cashier." Hartford Bk. -e. Barry, 17 94; Folger v. Chase, (18 P.) 35 63. 128. A married woman's note to her husband is not validated by his indorsement thereof to another. Qu., whether the indorsement ren- ders him liable thereupon. Roby v. Phelon, 118 541. 129. But a married woman may indorse a note, with her husband's consent, to another, so as to transfer to him a good title. Stevens «. Beals, (10 C.) 64 291; Slawson v. Loring, (5 A.) 87 340. [See Husband and Wife, III.] 130. Where a note is payable to bearer, or to A or order, and in either case is indorsed by A in blank, it is thenceforth transferable by de- livery only. Little v. Obrien, 9 423; Wilbour v. Turner, (5 P.) 22 526. 181. A constructive delivery of a note, in- dorsed by the payee, suffices, as where the indorsee ratifies a suit upon it in his name. Richardson «. Lincoln, (5 Met.) 46 201. 132. One, to whose hands a note, indorsed in • blank, comes from a person having no title to it, cannot retain it against the true owner, as security for a debt due from the person deliver- ing, unless it was taken in the usual course of business, or as security for a spe ific debt. Merriamt). Granite Bk., (8 G.) 74 254. 133. Where a bank receives for collection, a bill of exchange, indorsed payable to the order of its president, and returns the bill, after non- payment, with the indorsement uncancelled, this does not authorize a suit upon the bill in the bank's name. Watson v. N. E. Bank, (4 Met.) 45 343. 134. An indorsement "without recourse," or at the risk of the indorsee, suffices to transfer the entire interest, but prevents the indorser from becoming liable. Richardson v. Lincoln, (5 Met.) 46 201. See, also, Rice v. Stearns, 3 225; Fitchburg Bk. ■». Greenwood, (2 A.) 84 434. 135. An indorsement may be made on a sep- rate paper attached to the note. Folger v. Chase, (18 P.) 35 63. 136. A note payable to a real person, whose indorsement is forged, cannot be treated as pay- able to a fictitious person, and negotiable with- out indorsement. Dana v. Underwood, (19 P.) 36 99. 137. So where the note is payable to the or- der of John P. R., a real person, and indorsed by Joseph P. R., from whom the consideration moved. ' Bolles . Reed, (12 P.) 29 132; Lee Bk. v. Spencer, (6 Met ) 47 308. 144. Where, after execution of a note, it was indorsed, at the request of the payee, by a third person, and the payee afterwards indorsed it above him, the third, person is liable as second indorser merely. Pierce «. Mann, (17 P.) 34 244. 145. And where he indorsed under the forged indorsement of the payee, after the note had been negotiated, at the request of the maker, he is liable only as indorser, not as joint promisor or guarantor. Howe o. Merrill, (5 C.) 59 80. 146. Where a note is payable to the order of the maker, and indorsed by him, one, who in- dorses below the maker, is liable only as indor- ser, and this liability cannot be varied by oral evidence Prescott Bk. v. Caverly, (7 G.) 73 217; Bigelows. Colton, (13 a.) 79 809 147. And by the common law of this Com- monwealth, that rule holds, whether he in- dorsed before or after the maker, or before or after the note was negotiated, if the maker's name was first on the back, when the note was negotiated. Dubois ■». Mason, 127 37. 148. The liability of a party, whose name ap- pears on the back of a negotiable note, is de- termined by the position of his signature, with that of the other parties, when the note first takes effect by delivery. Reed «. Richardson, 98 216; Dubois •o. Mason, 127 37. 149. Where a note was payable to A or order, and A indorsed it and transferred it to B, as security for a loan, and on the payment of the loan, B wrote his name on the back under A's, meaning only to assign the note to A, and de- livered it to A, whereup m, the note not being yet payable, A transferred it for value and with- out notice to the plaintiff, and B was duly charged as indorser, an action thereupon lies against B. West Boston Sav. Bk. v. Thompson, 124 506. 150. One who indorses a bill of exchange for the drawer's accommodation, and at the request of another, who indorses it above him, does not thereby become a joint indorser with the latter. Shaw «. Knox, 98 214. 151. A person who indorses a blank paper, and leaves it with another for the purpose of having a particular note written on the reverse, is liable as indorser to a bona fide holder, who has taken the paper with a different note written on the reverse, although the blank was wrongfully obtained from the depositary. Putnam «. Sullivan, 4 45. 152. So where the paper was filled up on the reverse side with an unsigned promissory note, and is delivered as intended; but the person to whom it is delivered signs his own name, in- stead of his firm name; and the rule is not varied by the fact that the note is in the form, "we promise to pay." Whitmore u, Nickerson, 125 496 See. also, Fearing v. Clark, (16 G.) 82 74. 153. It is a good defence, in an action against an indorser, that the plaintiff is a member of a firm, who are indorsers above the defendant. Decreet % Burt, (7 C.) 61 551. 154. An indorser of a note is discharged by a valid agreement, without his consent, between the holder and the maker, to give time to the maker, whether before or after maturity; and a drawer or indorser of a bill of exchange is dis- charged by a like agreement with the acceptor. Woodman v. Thurston, (8 0.) 62 157; Veazie ». Carr, (3 A.) 85 14. 155. But merely demanding and receiving security from the maker does not discharge the indorser. Hurd ii. Little, 12 502. 156. And proving the note in insolvency against the maker, receiving a dividend, and discharging the estate, do not discharge the in- dorser from the balance. Burrill v. Smith, (7 P.) 24 291. 157. Nor is an indorser discharged by an agreement, on the part of the holder, never to sue the maker, and not to call upon the in- dorser for a time which has elapsed. Hutchinsfl. Nichols, (IOC.) 64 299. 158. Nor by an agreement to give the ac- ceptor of a bill time, reserving the holder's remedies against the other parties to the bill. Gloucester Bk. v. Worcester, (10 P.) 27 528; Sohier v. Loring, (6 C.) 60 537; Tobey e. Ellis, 114 120. 159. Nor by receiving a partial payment from the maker, and agreeing not to sue him for the balance. Nichols v Holt, (9 G.) 75 202. 'See further, on this subject, Surety, n, (3).)] 160. That the note was signed by an agent in the name of the maker, who was dead, is no defence to the indorser. Burrill e. Smith, (7 P.) 24 291. 161. Nor that the maker signed it under duress. Bowman ». Hiller, 130 153. t> 162. Nor can a second indorser defend on the ground that the payee's indorsement is a forgery. State Bk. v. Fearing, (16 P.) 33 533. 163. Or that the first indorser was a married woman. Prescott Bk. v. Caverly, (7 G.) 73 217. 164. Where there are several indorsers in blank of a promissory note, they are not dis- charged by the holder writing over the first indorsement, an order to pay the note to him- self, without striking out the other indorse- ments. Cole v. Cushing, (8 P.) 25 48. BILL OF EXCHANGE AND PEOMISSOEY NOTE. Ill, (1). 137 165. An assignment by the drawer of a bill of exchange, in trust for his creditors, of prop- erty sufficient to meet the acceptance, to which the indorser was a party, discharges the ac- ceptor for the drawer's accommodation, as against the indorser. Bradford v. Hubbard, (8 P.) 25 155. 166. The maker of a promissory note is not discharged, as against the indorser, by the re- covery of a judgment against him in favor of a subsequent indorsee, and his arrest under an execution thereupon. Cole v. Cushing, (8 P.) 25 48. 167. A second indorser may recover from the maker, although he took it from the payee, in violation of the agreement on which it was executed, he not being privy thereto. Mack i>. Clark, (1 Met.) 42 423. 168. Or although a prior indorser was men- tally incapable, neither he nor his representa- tives having disaffirmed. Carrier v. Sears (4 A.) 86 336; ex- « plaining Peaslee v. Bobbins, (3 Met.) 44 164. 169. Upon the question whether a note was indorsed for a certain person's benefit, evidence that he received the proceeds is competent. Winchester ». Whitney, 138 549. 170. A judgment recovered by the holder against the maker, and a commitment on exe- cution, are not a defence to the indorser. Porter v. Ingraham, lO 88. See, also, Gilmore 1>. Carr, 2 171. 171. Nor is payment into court by the maker, of the amount due, without the costs, nor pay- ment to an unauthorized person. Porter v. Ingraham, lO 88; Whipple n. Newton, (17 P.) 34 168. [See, also, post, III, V.] III. Presentation, Demand, and Notice. (1.) Sufficiency of presentation and de- mand. [As to the effect of the usages and customs of banks, relating to this subject, see Bank and Banking, III, (4).] 172. Where a note is payable at a bank, a demand there, after business hours, to which the officers answer that the maker has no funds, is sufficient. Shepherd 1>. Chamberlain, (8 G.) 74 225. 173. A note payable " at bank in Boston,' - or the like, may be presented at any incorporated bank there, but not at a private banker's office, although it is called a bank. Maiden Bk.«. Baldwin, (13 G.) 79 154; Hampden Ins. Co. v. Davis, (13 G.) 79 156, note; Way «. Butterworth, 106 75; Way v. Butterworth, 108 509. 174 Where a note speciflces no place of pay- ment, presentation and demand must be made at the maker's residence or place of business, at the time when it is due, if either can be found, after diligent search; if not, they are excused. Garland «. Salem Bk., 9 408; Granite Bk. v. Ayers, (16 P.) 33 392; Porter v. Judson, (1 G.) 67 175; Talbot v. Nat. Bk. Commonwealth, 129 67. Vol. 1—18 175. Where a note specifies a place of pay- ment, it suffices, if the note is there at the time, ready to be delivered up, without an ac- tual demand. Berkshire Bk. v. Jones, 6 524; Wood- bridge v. Brigham, 13 556; North Bk. v. Abbot, (13 P.) 30 465; Folger v. Chase, (18 P.) 35 63; Maiden Bk. ■». Baldwin, (13 G.) 79 154. 176. If the maker's place of business is closed during business hours, no further search for him is necessary. Shed v. Brett, (1 P.) 18 413. 177. Presentation at the maker's former resi- dence or office will not suffice, without diligent inquiry as to his present residence, even although the former residence is placed after the signature. Talbot 1). Nat. Bk. Commonwealth, 129 67; Demond v. Burnham, 133 339. 178. But the place specified in the date of the note is presumptively the maker's residence. Smith v. Philbrick, (10 G.) 76 252; Demond v Burnham, 133 339. 179. If, however, the holder's agent knows the maker's residence to be elsewhere, it must be sent there for presentation, although it is in another state. Bk. of Orleans v. Whittemore, (12 G.) 78 469. 180. But where a resident of the State re- moves out of the State, after making the note, presentation at his former residence suffices. Wheeler v. Field, (6 Met.) 47 290; Bk. of Orleans v. Whittemore, (12 G.) 78 469; Grafton Bk. n. Cox, (13 G.) 79 .503. 181. Where there is no dispute as to the facts, the question whether sufficient diligence has been used to find the maker, is for the court; if the evidence is conflicting, it is for the jury, under the directions of the court. Wheeler v. Field, (6 Met.)) 47 290; Wyman v. Adams, (12 C.) 66 210; Grafton Bk. v. Cox, (13 G.) 79 503. [For various rulings upon the question of dili- gence, as dependent upon the facts in each particu- lar case, see the foregoing authorities, and part) uel cases as to diligence to find the residence of an in- dorser, post. III, (3).] 182. In general, the presentation must be made by one in possession of the paper, with authority to receive payment, and to surrender it if paid. Freeman v. Boynton, 7 483; Hartford Bk. v. Barry, 17 94; Shed v. Brett, (1 P.) 18 401; Bachellor v. Priest, (12 P.) 29 399; Arnold v. Dresser, (8 A.) 90 435. 183. Where the administrator of a deceased holder, appointed in another state, sends the note to a notary public here, he has authority to demand payment, and give notice to the in- dorser, although administration has not been taken out here. Band v. Hubbard, (4 Met.) 45 252. 184. A notary public cannot present a bill or note for payment by a deputy, unless the usage of the place authorizes him so to do. Cribbs v. Adams, (13 G.) 79 5t)7; Ocean Nat. Bk. v. Williams, 102 141. 138 BILL OF EXCHANGE AND PEOMISSOEY NOTE, III, (2), (3). 185. "Where there are two or more makers, not partners, the note must be presented to all. Union Bk. «. "Willis, (8 Met.) 49 504; Arnold v. Dresser, (8 A.) 90 435. See, however, Shedd v. Brett, (1 P.) 18 401. 186. An actual presentation for acceptance is not necessary to charge the indorser of a bill of exchange, if the drawer informs the drawee that it will not be accepted or paid. Fall River U. Bk. v. "Willard, (5 Met.) 46 216. 187. So of a presentation of a note for non- payment, if such information is given by the maker on the last day of grace. Gilbert v. Dennis, (3 Met.) 44 495. (2.) Time of presentation and demand; grace. [See, also, post, "V (l).l 188. Presentation and demand, before the day on which a note is due, including grace, is in- sufficient to charge an indorser. Jones v. Pales, 4 245; Henry n. Jones, 8 453; Farnum v. Powle, 12 89; Mechs. Bk. «. Merchts. Bk., (6 Met.) 47 13. 189. If the last day of grace falls on Sunday, the demand should be made on Saturday. Parnum v. Powle, 12 89; Barker v. Parker, (6 P.) 23 80. 190. By statute, where a note or bill of ex- change falls due upon one of certain holidays, or on the following day, being Sunday, it is to be presented on the preceding day, etc. ,G. S., Ch. 53, § 7; P. 8., Ch. .77, § 8. See City Bk. «. Cutter, (3 P.) 20 414. 191. A note payable on demand is due im- mediately, although it specifies a time after which interest shall run; and the maker is liable thereon without a special demand. Field v. Nickerson, 13 131; Presbrey 1). Williams, 15 193; Loring v. Gurney, (5 P.) 22 15; Wright v. Fisher, (13 P.) 30 419, note; Jillson v. Hill, (4 G.) 70 316. 192. But an indorser of a demand note is not liable, without presentation thereof, and notice of non-payment; which must be made within a reasonable time. See G. S.,' Ch. 53, § 9; P. S., Ch. 77, § 13. Field d. Nickerson, 13 131; Seavers. Lincoln, (21 P.) 38 267. 193. By St., 1839, Ch. 121, § 2; G. S„ Ch. 53, § 8; P. S., Ch. 77, § U; presentation of a demand note may be made within 60 days after date. The statute does not apply where the sixty days had elapsed, when the indorsement was made. Qu. , if in such a case 60 days after the indorsement are allowed. Rice v. Wesson, (11 Met.) 52 400. 194. A note on time, indorsed after maturity, is in legal effect a note payable on demand. Colt ». Barnard, (18 P.) 35 260. 195. A memorandum at the foot of a demand note, specifying a time of payment, will control. Heywood v. Perrin, (10 P.) 27 228; Franklin Sav. Inst. n. Reed, 125 365. 196. A demand after the maturity of a note is insufficient. Farnum v. Fowle, 12 89; Woodbridge «. Brigham, 12 403; Barker t. Parker, (6 P.) 23 80. 197. But where a note does not specify a place of payment, and the holder resides at a distance, a short delay alter maturity is permis- sible. Freeman «>. Boynton, 7 483; Barker v. Parker, (6 P.) 23 80. 198. The presentation and demand, where no place of payment is specified, must be made on the maker at a reasonable hour. Farnsworth v. Allen, (4 G.) 70 453. 199. As to the circumstances which will ren- der the presentation sufficient, although after maturity, see White ». Stoddard, (11 G.) 77 258. lAa to presentation to a bank, see Bank and Banking, III, (4).] 200. A bill of exchange must be presented for acceptance, or, if payable at sight, for pay ment, within a reasonable time, unless there is a special agreement as to the time. Bachellor v. Priest, (12 P.) 29 399; Fall R. Union Bk. v. Willard, (5 Met.) 46 216; Prescott Bk. v. Caverly, (7 G.) 73 217. 201. A note payable " in sixty days " or " four months after," is payable at the specified time after the date, excluding that day. Henry ». Jones, 8 453; Wentworth v. Clap, 11 87; Pearson «. Stoddard, (9G.) 75 199. 202. Under the statute, all promissory notes on time, including bank post notes, are entitled to grace, unless otherwise provided therein; and a usage or custom to the contrary is void. Perkins ®. Franklin Bk., (21 P.) 38 483; Mechs. Bk. v. Merchts. Bk., (6 Met.) 47 13. 203. Miter, before the statute. Jones n. Fales, 4 245; Barker v. Parker, (6 P.) 23 80. 204. In the absence of proof, the presumption is that grace is allowed on all bills and notes in every state in the Union. Wood v. Corl, i (4 Met.) 45 203; Cribbs n. Adams, (13 G.) 79 597. 205. A note, payable in instalments, with in- terest, is entitled to grace on each instalment of principal and interest. Coffin v. Loring, (5 A.) 87 153. (3.) Time and sufficiency of notice. 206. Where a note is not payable at a bank, and not actually presented to the maker, notice of non-payment, before the close of business houis, is premature, although after banking hours. Pierce v. Cate, (12 C.) 66 190. 207. Notice must be seasonably sent to an in- dorser to char e him, and this although the note was indorsed after maturity. Shaw v. Grifith, 7 494; Hussey «. Freeman, lO 84; Thayer v. Brackett, 12 450; Colt v. Barnard, (18 P.) 35 260. 208. Notice given the day after dishonor of a note, suffices; and if the indorser lives in another place, a deposit in the post-office, in time for next day's first mail, suffices. Whitwell v. Johnson, 17 449; Seaver v. Lincoln, (21 P.) 38 267; Grand Bk. v. Blanchard, (23 P.) 40 305. BILL OF EXCHANGE AND PEOMISSOEY NOTE, III, (3). 139 209. In Havana, where vessels are not allowed to clear during the Christmas holidays, it is not • necessary to send a notice of dishonor abroad during those holidays. Martin v. Ingersoll, (8 P.) 25 1. 210. The holder of a promissory note, who indorses it and sends it to an agent for collec- tion, is allowed till the first mail of the next day, excluding Sunday, after he receives a no- tice, seasonably sent to him by his agent, in which to forward notice to the iridorser. And the same rule holds where an indorser receives notice from another indorser, and seeks to charge a prior indorser. Colt v. Noble, 5 167; Eagle Bk. v. Chapin, (3 P.) 20 180; Church v. Bar- low, <9 P.) 26 547; Eagle Bk. ■». Hatha- way, (5 Met.) 46 212; Phipps ». Mill- bury Bk., (8 Met.) 49 79; Palen v. Shurtleff, (9 Met.) 50 581; "Wamesit Bk. v. Buttrick, (11 G.) 77 387; Fitch- burg Bk. ». Perley, (2 A.) 84 433; True v. Collins, (3 A.) 85 438; Haskell «. Boardman, (8 A.) 90 38, Shelburne Falls Bk. v. Townsley, 102 177; Shel- burne Falls Bk. v. Townsley, 107 444; Bartlett v. Hawley, 120 92; Lynn Nat. Bk. v. Smith, 132 227. 211. And the rule is the same, although the holder indorsed it, with direction to pay the agent on his account, or for collection merely. Church v. Barlow, (9 P.) 26 547; Lynn Nat. Bk. v. Smith. 132 227. 212. But if he sends it as a drop letter, that must be deposited in the post-office on the same day. Shelburne Falls Nat. Bk. v. Townsley, 102 177. 213. And if he writes back to his agent, di- recting the latter to send the notices, the time of transmission of his letter cannot be added. Talbot v. Clark, (8 P.) 25 51. 214. Notice by the drawee to the drawer of a bill is insufficient to charge him; it must come from the holder. Stanton v. Blossom, 14 116. 215. A notice from a notary, signed by mis- take with the name of the maker of the note, is insufficient. Cabot Bk. v. "Warner, (10 A.) 92 522. 216 A notice from a notary need not state who holds the note, or the date or place of pay- ment; and it is sufficient if it informs the party that the note has been protested for non-pay- ment, or dishonored, or the bill protested for non-acceptance, or dishonored. Sanger v. Stimpson, 8 260; Shed ■». Brett, (1 P.) 18 401; "Wheaton v. Wil- marth, (13 Met.) 54 422; Housatonic Bk. v. Laflin, (5 C.) 59 546. 217. But notice merely that the note is due and unpaid is not sufficient. Gilbert v. Dennis, (3 Met.) 44 495; Pinkham v. Macy, (9 Met.) 50 174- Clark v. Eldridge, (13 Met.) 54 96. 218. An error in description, which does not mislead, does not vitiate the notice. Smith v. "Whiting, 12 6. 219. Nor does an omission to make demand on the indorser, or an excessive claim of lia- bility, or an erroneous legal construction of the instrument. Fitchburg Ins. Co. v. Davis, 121 121. 220. A notice addressed " to the estate of A, deceased," is insufficient, without proof of dili- gence to learn the executor's name. Mass. Bk. v. Oliver, (10 C.) 64 557. See, also, Oriental Bk. v. Blake, (22 P.) 39 206. 221. A notice, addressed generally to the executor of a deceased indorser, suffices, although the will has been proved; but not if he has renounced, and a special administrator has been appointed. Goodnow ». "Warren, 122 79. 222. A notice of dishonor to a partnership, drawers of a bill of exchange, suffices, if given at the place where the business was transacted, and the bill drawn, although the partnership has been dissolved, and all the partners have re- moved, but without the holder's knowledge. Bliss v. Nichols, (12 A.) 94 443. 223. If a notice is directed to each indorser, and inclosed in a properly addressed and post- paid letter to the last indorser, they are all charged, although he failed to receive it. "Wamesit Bk. v. Buttrick, (11 G.) 77 387. 224. Before the statute, St. 1871, Ch. 239; P. S., Ch. 77, § 16, a notice could be sent through the post-office, only where the holder and the acceptor or indorser resided in different places; if they resided in the same place, it must have been personally, delivered, or left at the party's residence or place of business. Peirce v. Pendar, (5 Met.) 46 352. See, also, Granite Bk. «. Ayers, (16 P.) 33 392; and, as to the effect of usage, Chicopee Bk. v. Eager, (9 Met.) 50 583. 225. "Where notice through the post-office is proper, a notice, seasonably deposited, and properly addressed, suffices, although it was not received. Munn v. Baldwin, 6 316; Shed v. Brett, (1 P.) 18 401; "Wamesit Bk. «. Buttrick, (11 G.) 77 387. 226. And a notice through the post-office, im- properly directed, suffices, if it actually reaches the party. Cabot Bk. •». "Warner, (10 A.) 92 522. 227. A notice, addressed to the place sup- posed to be the residence of the indorser or drawer suffices, although not his residence, if the supposition is the vresult of due diligence and inquiry by the holder or the notary. "Wood v. Corl, (4 Met.) 45 203; Chou- teau v. "Webster, (6 Met.) 47 1. 228. And a notice addressed at the town of his residence suffices, although it is not his domicil. Young v. Durgin, (15 G.) 81 264. 229. So a notice suffices, if addressed to the post-office where he usually gets his letters, al- though it is in another part of the same town. Shaylor v. Mix, (4 A.) 86 351. 230. So a notice delivered at the supposed residence or place of business of the indorser or drawer suffices, if due diligence and inquiry have been exercised. Blakely v. Grant, 6 386. 140 BILL OF EXCHANGE AND PEOMISSOEY NOTE, III, (4). 231. For various rulings, upon the question of diligence, as dependent upon the facts in the particular case, see the foregoing authorities, and parallel cases as to diligence to find the residence of the maker, ante, III, (1); also Hodges 0. Gait, (8 P.) 25 251; Peirce v Pendar, (5 Met.) 46 352; Phipps v. Chase, (6 Met.) 47 491. 232. A. notice through the post-office is suffi- ciently addressed to the town where the indorser resides, although there is another post-office of a different name in the same town, where he gets his letters, unless the holder might have ascertained that fact by reasonable inquiry. Mortons Westcott, (8 C.) 62 425; Cabot Bk. 0. Russell, (4 G.) 70 167; Shelburne P. Nat. Bk. 0. Townsley, 107 444; Roberts «. Taft, 120 169; Bur- lingame 0. Poster, 128 125. 233. A notice is sufficiently addressed to the city where the indorser resides, without adding the street and street number, unless, perhaps, where it appears that there were two or more persons of the same name in the city. True v. Collins, (3 A.) 85 438. (4.) Necessity and effect of presentation, demand, and notice ; waiver thereof. [See, also, ante, II, (3).] 234. Presentation of a bill of exchange for acceptance, and notice of non-acceptance, enti- tle the holder to recover from the drawer and indorser immediately, although it has not yet matured. "Watson v. Loring, 3 557 ; Lenox ». Cook, 8 460. 235. The drawer of a bill, who had no funds ■ in the hands of the drawee, at or after the draw- ing of the bill, is liable without presentation and notice. Kinsley v. Robinson, (21 P.) 38 327. 236. But not if the drawee had agreed to ac- ■ cept, or if the drawer had funds before matu- rity. Stanton v. Blossom, 14 116; Savage 0. Merle, (5 P.) 22 83; Grosvenor v. Stone, (8 P.) 25 79; Shaw «. Stone, (1 C.) 55 228. 237. So where the drawer is a member of a firm on which the bill is drawn. Puller 0. Hooper, (3 G.) 69 334. See, however, King 1>. Dedham Bk., 15 447. 238. An acceptor of a bill, for the honor of the drawer, cannot recover against him with- out presentation and notice. Phoenix Bk. «. Hussey, (12 P.) 29 483; Baring 0. Clark, (19 P.) 36 220. 239. Where a note is payable in instalments, an omission of presentation and demand, when one instalment matures, does not affect an in- dorsees liability on a subsequent instalment. Pitchburg Ins. Co. 0. Davis, 121 121. 240. The accommodation indorser of a prom- issory note, or acceptor of a bill, may take it up at maturity, without presentation and no- tice, and recover from the maker or drawer Pinney e. McGregory, 102 186. See, also, Whitwell 0. Brigham, (19 P.) 36 ?*}•• v? ne indorser of a promissory note is not liable, without presentation or a substitu- tion therefor, and notice, although the maker is insolvent and has absconded. Crossen 0. Hutchinson, 9 205; Sand-' ford 0. Dillaway, 10 52; Farnum s, Powle, 12 89; Granite Bk. v. Ayers, (16 P.) 33 392; Pierce v. Cate, (12 C.) 66 190. Contra, overruled, Putnam v. Sullivan, 4 45. 242. Or although the note was overdue when indorsed. Colt v. Barnard, (18 P.) 35 260. 243. Or although the maker is an infant. Wyman 0. Adams, (12 C.) 66 210. 244. An indorser is liable without presenta- tion and notice, if the note matures within a year after the maker's death. Hale v. Burr, 12 86; Burrill v. Smith, (7 P.) 24 291. 245. But the administrator of an indorser, who dies before maturity, is not liable without presentation, and notice to him. Oriental Bk. v. Blake, (22 P.) 39 206. 246. Presentation and demand are not neces- sary in any case to charge the maker of a note. Ruggles v. Patten, 8 480; Carley v. Vance, 17 389; Payson «. Whitcomb, (15 P.) 32 212; Carter 0. Smith, (9 C.) 63 321; Maiden Bk. v. Baldwin, (13 G) 79 154. 247. An indorser is liable without presenta- tion, or notice, if they are waived, either ex- pressly or by implication, and either before or after maturity; and a promise to pay, with notice of the omission, is such a waiver. Boyd v. Cleveland, (4 P.) 21 525; Taunton Bk. Richardson, (5 P.) 22 436; Barker v. Parker, (6 P.) 23 80; Gove «. Vining, (7 Met.) 48 212; Woodman «. Thurston, (8 C.) 62 157; Matthews v. Allen, (16 G.) 82 594; Kent 0. Warner, (12 A.) 94 561; Tucker M. Co. v. Fair- banks, 98 101; Harrison®. Bailey, 99 620; Third Nat. Bk. 0. Ashworth, 105 503; Brannon v. Hursell, 112 63; Pratt 0. Chase, 122 262; Rindgee. Kimball, 124 209; Armstrong 0.Chadwick, 127 156. 248. But waiver of notice merely does not waive presentation. Berkshire Bk. v. Jones, 6 524. 249. Waiver of presentation or notice, by a writing above an indorser's name, does not affect a subsequent indorser. Central Bk. 0. Davis, (19 P.) 36 373. 250. After the omission, there must be an ex- press waiver or promise; merely saying that it would be paid, or that he would see about it, or the like, is not a waiver or a promise. May 0. Coffin, 4 341; Creamers. Perry, (17 P.) 34 332; Wheeler '«.. Souther, (4 C.) 58 606. 251. Nor is an effort to procure payment from the maker. Hussey 0. Freeman, 10 84. 252. A promise by an indorser to pay a note or bill is not binding, if made in ignorance of the fact that there had been no presentation or notice, or none legally sufficient; but ignorance of the sufficiency, as matter of law, does not impair the validity of the promise. Warder 0. Tucker, 7 449; Freeman®. Boynton, 7 483 ; Copp 0. McDugaU. BILL OF EXCHANGE AND PEOMISSOEY NOTE, III, (5) ; IV. 141 9 1; Hopkins v. Liswell, 12 52; Mar- tin v. lngersoll, (8 P.) 25 1; Low v. Howard, (11 C.) 65 268; Kelley B.Brown, (5G.) 71 108; Matthews o. Allen, (16 G.) 82 594; Arnold v. Dresser, (8 A.) 90 435; Third Nat. Bk. v. Ashworth, 105 503. 253. A waiver of protest, by an indorser of a note, may be found to be a waiver of notice of demand and refusal; and whether such waiver was placed upon the note, before or after the in- dorsement, is for the jury. Johnson v. Parsons, 140 173. See, also, Brannon v. Hursell, 112 63. 254. Taking security from the maker of a note, either before 6r after maturity, is not a waiver by an indorser of presentation or notice, or of a previous omission to make them. Bond ■». Farnham, 5 170; Tower v. Durell, 9 332; Creamer v. Perry, (17 P.) 34 332; Haskell«.Boardman,(8A.) 90 38. 255. But where the indorser is, before matu- rity, furnished by the maker with funds to pay the note, and promises him to pay it, that is such a waiver. Andrews v. Boyd, (3 Met.) 44 434. LAs to "waiver of demand and notice by a guaran- tor, see ante, art. 70.] (5.) Protest. 256. A protest of a promissory note is unnec- essary, and the indorser is not liable for the fees thereof. City Bk. v. Cutter, (3 P.) 20 414. 257. In order to charge the drawer and in- dorser of a foreign bill of exchange, a regular protest for non-payment, and, if it was not ac- cepted, for non-acceptance also, are necessary; and non-acceptance, or non-payment, or notice, can be proved only by a protest. Lenox ». Leverett, lO 1; Phoenix Bk. v. Hussey, (12 P.) 29 483; Ocean Nat. Bk. v. Williams, 102 141. But now by statute a certificate suffices. St. 1880, Ch. 4; P. S., Cii. 77, § 22. 258. And semble, that protest may be proved by the admission of the drawee. Derickson ». Whitney, (6 G.) 72 248. 259. In the absence of a statute or local usage, a notary cannot present a foreign bill by deputy. Ocean Nat. Bk. v. Williams, 102 141. 260. A foreign bill of exchange, accepted for honor, must be first protested for non-accept- ance, and, at maturity, for non-payment; and, in either case, notice thereof must be given, to hold either the drawer or an indorser. Lenox v. Leverett, lO 1. 261. But the word ''protest," in a popular sense, means a presentation and notice of non- payment; and the jury may find that an answer to an interrogatory, that the party knew that " the note had not been protested," means that he knew that such presentation hpd not been made, and notice had not been given. Brannon ». Hursell, 112 63. 262. And a notary's certificate of protest of a promissory note, under seal, was evidence after his death, before the St. of 1886. Porter v. Judson, (1 G.) 67 175. IV. Check. [See, also, Order.] 263. A check is not within the provision of the statute, allowing the same defences to prom- issory notes on demand, as if the suit was be- tween the original parties. Nat. Bk. of Rochester v. Harris, 108 514. 264. The rule that a bill of exchange or promissory note, taken when overdue, is sub- ject to all the equities between the original parties, does not apply to a check on a bank, taken within a short time after its date, which, although payable on demand, is not overdue immediately. Ames v. Meriam, 98 294; Nat. Bk. Rochester v. Harris, 108 514. 265. A person who takes, in good faith and for value, a check obtained by fraudu- lent representations, may recover against the drawer, although it was payable to the order of C. B., and indorsed in that name by the person to whom it was delivered, he not being the C. B. intended, but being the person whom the drawer supposed was that C. B. Robertson ». Coleman, 141 231. 266. A bank, which pays a check upon it, is in general responsible for the genuineness of the signature of the drawer, but if the person re- ceiving the money on a forged check has, by his own fault or negligence, contributed to the success of the fraud, or to mislead the drawee, the bank can recover back the money. Nat. Bk. N. America v. Bangs, 106 441; Mackintosh v. Eliot Nat. Bk., 123 393. 267. As to the effect of the rules of the clear- ing house in such a case, see Merchts. Nat. Bk. v. Eagle Nat. Bk., lOl 281. 268. The maker of a check, payable to the order of a particular person, is not liable, if the indorsement is forged, although the holder is innocent. Rowe v. Putnam, 131 281. 269. Nor can the bank retain against him, if the payee's name is erased, and the money thereby fraudulently obtained from the bank, unless he was guilty of negligence in discover- ing the fraud, and notifying the bank thereof. Dana v. Nat. Bk. Republic, 132 156. 270. A check for part of the maker's funds, is not an assignment pro tanto as against a trus- tee process, until presented to and accepted by the bank. Bullard v. Randall, (1 G.) 67 605. 271. And a check for more than the maker's, funds creates no lien upon the actual balance, until a like presentation and agreement to pay pro tanto. Dana v. Boston Third Nat. Bk., (13 A.) 95 445. 272. Nor does a promise by a bank to a de- positor to pay all checks which he may draw, render it liable to the holder of a check for part of the balance. Carr t>. Nat. Security Bk., 107 45. 273. Where the name of the bank is can- celled, the holder of a check cannot recover against the drawer, without proof that he came by the check bona fide and for a valuable con- sideration. Ball v. Allen, 15 433. 142 BILL OF EXCHANGE AND PEOMISSOEY NOTE, V, (1), (2). 274. But upon such proof he may recover, although he took the check five months after its date. Ellis v. Wheeler, (3 P.) 20 18. 275. The drawer of a check is liable, without presentation and notice, if he had no funds. Cushing v. Gore, 15 69. 276. So if it is a mere memorandum check; hut the insertion of the words, " value received," does not of itself make it a memorandum check. Franklin Bk. ■». Freeman, (16 P.) 33 535; Kelley». Brown, (5 G.) 71 108. 277. If a memorandum check is declared upon as a common check, evidence that it was a memorandum check, and intended as a due hill, is inadmissible; and the drawer is not liable, upon a promise to pay it, made in ignorance that it had not been presented. Kelleya. Brown, (5 G.) 71 108. 278. For rulings as to the right of a bank to recover back, from another bank, the sum paid by it, through the clearing house, upon a check, upon the ground of a mistake of fact, where the money was wrongfully deposited in the former bank by its agent, to his own credit, see Merchants' Nat. Bk. v. Nat. Bk. of Comm., 139 513. V. Action. (1.) Time when it may be brought. [See ante. III, (2); III, (4).] 279. An action against the maker of a prom- issory note, entitled to grace, may be brought immediately after actual demand and refusal on the last day of grace; but if demand is not made, it cannot be brought until the next day. Staples v. Franklin Bk., (1 Met.) 42 43; Gordons. Parmalee, (15 G.) 81 413; Estes ». Tower, 102 65. 280. But an objection, that the action was prematurely brought, cannot be sustained merely because the writ was filled up and delivered to the officer, after sunset of the last day of grace. Butler «. Kimball, (5 Met.) 46 94, explained in Estes v. Tower, 102 65. 281 Upon a note, payable at a bank, an ac- tion lies against the maker after the closing of bank hours, on the last day of grace, and not before. Church v. Clark, (21 P.) 38 310. 282. Where the indorser of a note resides in another town, an action against him may be commenced as soon as notice of non-payment is deposited in the post-office; but where he resides in the same town, it cannot be commenced until the notice is delivered. Stanton v. Blossom, 14 116; Shed v. Brett, (IP) 18 401; New England Bk. ». Lewis, (2 P.) 19 125; City Bk. v. Cutter, (3 P.) 20 414. [See, however, as to the last proposition, St. 1871, Ch.239;P.S., Ch. 77, 816.] 283. Where the principal or interest is pay- able in instalments, an action lies for each in- stalment as it falls due. Tucker ». Eandall, 2 283; Greenleaf v. Kellogg, 2 568; Cooley v. Rose, 3 221: Estabrook®. Moulton, 9 258; Hey- wood ». Perrin, (10 P.) 27 228; Ferry v. Ferry, (2 C.) 56 92. 284. An action against the maker of a note on time does not lie before maturity, although he fraudulently got it into his hands, and refused to return it. Ilsley v. Jewett, (2 Met ) 43 168. 285. A covenant not to sue a note for a speci- fied time after maturity is not a bar to an action before the time, the remedy being on the cove- nant. . Perkins v. Gilman, (8 P.) 25 229. 286. Nor is an oral agreement by the holder upon good consideration to extend the time. Allen v. Kimball, (23 P.) 40 473. 287 Nor is taking interest in advance, upon an oral agreement to renew the note, although a memorandum of renewal is marked by the holder on the wrapper containing it. Oxford Bk. *. Lewis, (8 P.) 25 458; Central Bk. v. Willard, (17 P.) 34 150; Agricultural Bk. v. Bishop, (6 G.) 72 317. (2.) Pleadings. 288. A declaration containing the money counts, or one of them, was sufficient before the practice act, in an action against any of the parties, except a guarantor. State Bk. v. Hurd, 12 172; Wild ». Fisher, (4 P.) 21 421; Cole t>. Cushing, (8 P.) 25 48; Ellsworth v. Brewer, (11 P.) 28 316; Ramsdell v. Soule, (12 P.) 29 126; Payson v. Whitcomb, (15 P.) 32 212; Hodges v. Holland, (16 P.) 33 395; Webster v. Randall, (19 P.) 36 13; Dana ■». Underwood, (19 P.) 36 99; Townsend v. Derby, (3 Met.) 44 363; Goodwin v. Morse, (9 Met.) 50 278; Wells v. Brigham, (6 C ) 60 b. 289. And the money counts would suffice in an action against a guarantor, unless objection was taken at the trial. Bickford v. Gibbs, (8 C.) 62 154 290. A special declaration need not describe the payee and indorser, more particularly than they are described in the note Root v. Henry, 6 504. 291. A declaration on a note, payable to the, treasurer of a parish or his successor, and al- leging that the plaintiff was treasurer, and that it was payable to him, is not demurrable, be- cause the copy set out appears to have an in- dorsement by the plaintiff's successor. Buck v. Merrick, (8 A.) 90 123 292. A guarantor before delivery, who has paid the note to the payee, by whom it was in- dorsed and delivered to him, may declare on the note as indorsee. McGregory v. McGregory, 107 543. See, also, Pinney v. McGregory, 102 186. 293. It is not necessary that the declaration should allege a promise to the plaintiff, or a valuable consideration therefor. Gilbert ». Nantucket Bk., 5 97; Dole i). Weeks, 4 451. 294. But where the defendant signed the note as surety, after its inception, and upon another consideration, the consideration of his contract must be set forth. Stone v. White, (8 G.) 74 589. BILL OF EXCHANGE AND PROMISSORY NOTE, V, (2), (3). 143 395. A declaration against the maker of a note need not aver presentation. Ruggles v. Patten, 8 480; Carley v. Vance, 17 389; Payson v. Whitcomb, (15 P.) 32 213; Carter u Smith, (9 C.) 63 321. 296. A person who signs a note as surety may be .declared against an original promisor. Moies «. Bird, 11 436; Harris v. Brooks, (21 P.) 38 195. 297. If the plaintiff claims damages on a bill of exchange, under the statute, he must set forth the place where it was drawn. Fairfield e. Adams, (16 P.) 33 381. 298. If the note appears to be dated out of the county, the true date must be given with a videlicet. Munroe v. Cooper, (5 P.) 22 412. 299. A declaration on a note, altered without authority, must set it forth according to its original tenor. Cape Ann Nat. Bk. t. Burns, 129 596; Drum v. Dram, 133 566. 300. Under the former rules of pleading, the defendant might show, under the general issue, that the note was given in payment of goods sold, with knowledge that he was to peddle them, contrary to the statute. Robinson «. Howard, (7 C.) 61 611. 301. Under an answer alleging that the note was given for an illegal consideration, the de- fendant may show that it was a renewal of a note so given. Chenery v. Barker, (12 G.) 78 345. 302. An answer, denying each and every allegation of the declaration, requires the plain- tiff, in an action against an indorser, to prove the making and indorsement. Estabrook v. Boyle, (1 A.) 83 412. 303. In an action against an indorser, an answer, that the person who held the note at maturity signed a receipt, with an agreement to take it up on certain terms, admits a defence that the defendant was his accommodation in- dorser. Kellogg «. Barton, (12 A.) 94 527. 304. The defendant's omission to deny his signature does not prevent him, under St. 1877, Ch. 163, P. S., Ch. 167, § 21, from contending, under a denial that he made the note, that it has been materially altered since he signed it, or relieve the plaintiff from proving that it is in the same condition as when signed. Cape Ann Nat. Bk. v. Burns, 129 596. 305. An answer " that the defendant denies the signature of the alleged note," etc., is not such a special denial and demand that the sig- nature shall be proved at the trial, as the statute of 1877 requires. Spooner v. Gilmore, 136 248. 306. "Where the note is secured by mortgage on real property, an answer, that the note had been fully paid from the mortgaged premises, does not admit the defence, that the defendant was prevented by the plaintiffs fraud from bid- ding, at a sale under a power in the mortgage Torrey v. Fenton, 130 329. 307 Where the declaration all ges that the defendants made a promissory note, under the style of D. & Co., and D. appears alone and puts m a general denial, the signature is admit- ted, under the act of 1877, and the plaintiff is not required to prove that the defendant D. was a member of the firm of D. & Co. Haskins v. D'Este, 133 356. 308. Where the answer sets up a release under seal, and the release is put in evidence, the piaintiff may show that it was obtained b y fraud, without a replication. Torrey v. Penton, 130 329 (3.) Parties. 309. In this Commonwealth, a plaintiff may maintain an action, although he has no benefi- cial interest in the note sued upon; and he will be bound to account to the real owner for the proceeds of any judgment recovered upon it. Little f. Obrien, 9 423; Bowman v. Wood, 15 534; Brigham ®. Marean, (7 P.) 24 40; Fairfield v. Adams, (16 P.) 33 381; Beekman v. Wilson, (9 Met.) 50 434; Royce ®. Barnes, (11 Met.) 52 276; Way v. Richardson, (3 G.) 69 412; Peaslee v. McLoon, (16 G.) 82 488; Whitten v. Hayden, (9 A.) 91 408; Wheeler v. Johnson, 97 39; Nat. Bk. Republic v. Conlan, 99 181; Nat. Pem- berton Bk. v. P orter, 125 333;Spof- ford «. Norton, 126 533. 310. And where one sues for the benefit of another, any defence is available, which could be maintained in a suit in the latter's name; and no other defence is available. Baxter v. Little, (6 Met.) 47 7; Nor- cross «. Pease, (5 A.) 87 331; Spofford s.Norton, 126 533. 811. But an incidental benefit under a statute, if the suit was in the name of the real owner, cannot be claimed by the defendant, where it is in the name of one suing for his benefit. Brigham «. Morean, (7 P.) 24 40; Hodges v. Holland, (19 P.) 36 43. 312. The holder may sue in his individual name, though he holds the note as adminis- trator. Holcomb v. Beach, 112 450. 313. The indorsement of a note by the payee, for a good consideration, authorizes a suit in the name of the indorsee, or of his adminis- trator. Sigourney v. Severy, (4 C.) 58 176; Rockwood t>. Brown, (1 G.) 67 261; Wheeler v. Johnson, 97 39. 314. See, further, as to the implied consent to use the name of a transferor, in an action by a transferee, Drury v. Vannevar, (5 C.) 59 442; Stone d. Hubbard, (7 C.) 61 595; Pitts v. Holmes, (10 C; 64 92; Robinson v. HaH, (11 G.) 77 483; Lindsay «. Chase, 104 253; Paine v. Furnas, 117 290. 315. But a mere depositary cannot sue in his own name. Sherwood v. Roys, (14 P.) 31 172. 316. Nor can one sue who is in possession of the note, and is prosecuting it for his own bene- fit, against the objection of the real owner. Towne v. Wason, 128 517. 317. The production of the note, with proof that the plaintiff is a holder for value, will sus- tain an action, although it is indorsed by a third person, directing payment to the order of an- other, who has not indorsed it, or consented to the suit. Rider e. Taintor, (4 A.) 86 856. 144 BILL OF EXCHANGE AND PEOMISSOEY NOTE, V, (4). 318. An indorsement to "B, cashier," or naming the payee as "B, cashier," authorizes the bank to sue. Fairfield v. Adams, (16 P.) 33 381; Barney*. Newcomb, (9 C.) 63 46. 319. But an action will not lie in favor of the holder, upon a note payable to the order of a bank, which the bank refuses to indorse, or to authorize to be sued in its name. Allen e. Ayers, (3 P.) 20 298. 320. Where there is an indorsement to two, an action will lie upon the note in favor of both, although one did not accept the transfer till after the other took it. Flint «. Flint, (6 A.) 88 34. 321. Different actions may be brought at the same time, against maker and indorser, or two or more several makers. Gilmore v. Carr, 2 171; Simonds v. Center, 6 18; Porter ®. Ingraham, 10 88. 322. An action cannot be maintained by the holder of a non-negotiable note, payable to another, or bearer, upon proof that the defend- ant gave him the note, upon the assurance that, as it was payable to bearer, he could collect it in his own name. Whitwell v. Winslow, 134 343. 323. Where a note, payable at a bank, was discounted by another bank, and on its trans- mission to the former bank, through the clear- ing house, the teller of that bank, by mistake, stamped it paid, but on the same day notified the indorser and the discounting bank of the mistake, and had the note protested, but, under the rules of the clearing house, paid the dis- counting bank, and sued the indorser, the action may be maintained. Manuf. Nat. Bk. v. Thompson, 129 438. C4.) When defence not admissible In action by holder. [For rulings as to right to inquire into the conside- ration, and the defence of total or partial failure of consideration, see ante, I, (6).] 324. A person, who takes a negotiable prom- issory note or bill of exchange, for a valuable consideration, before maturity, and without notice, is not affected by any defect, illegality, fraud, or other infirmity in the same, or in the title of any intermediate possessor, or any de- fence thereto between any of the parties, or between them and an intermediate possessor. Wheeler e. Guild, (20 P.) 37 545; Ward v. Allen, (2 Met.) 43 53; Fogg v. Willcutt, (1 C.) 55 300; Sweetser v. French, (2 C.) 56 309; Blanchard v. Stevens, (3 C.) 57 162; Stoddard v. Kim- ball, (4 C.) 58 604; Williams v. Cheney, (3 G.) 69 215; Pettee v. Prout, (3 G.) 69 502; Williams v. Cheney, (8 G.) 74 206; Cazet v. Field, -(9 G.) 75 329; Fearing «. Clark, (16 G.) 82 74; Potter ii. Belden, 105 11; Clark «. Thayer, 105 216; Cranson v. Goss, 107 439; Smith v. Livingston, 111 342; Wood- ruff v. Hill, 116 310; Draper v. Sax- ton, 118 427; Gilson v. Stevens M. Co., 124 546. 325 In this respect, the note of a corporation is subject to the same rules as that of a natural person. Bird v. Daggett, 97 494; Monument Nat. Bk. ii. Globe Works, 101 57. 326. An exception to the rule arises, where a statute declares the security void; in which case it is void, even in the hands of an innocent holder. Bayley v. Taber, 5 286; Bridge v. Hubbard, 15 96; Kendall v. Robertson (12 C.) 66 156. 327. But where a note is dated here, and in- tended to be a Massachusetts contract, such an innocent holder takes it, free from any illegality avoiding the same, by a statute of another state, where it was actually made. Towne v. Rice, 122 67. 328. A person, who takes a note or bill as collateral security, is protected by this rule; but the rule protects the holder only to the extent of the debt secured, or consideration paid, for which sum only he can recover, in an action upon the note or bill, if no action would lie in favor of one chargeable with notice. Chicopee Bk. ». Chapin, (8 Met.) 49 40; Stoddard v. Kimball, (6 C.) 60 469; Williams v. Cheney, (3 G.) 69 215; Roche v. Ladd, (1 A.) 83 436; Drink- house v. Surette, (1 A.) 83 443, note; Gardner v. Gager, (1 A.) 83 502; Hub- bard v. Chapin, (2 A.) 84 328; Fisher v. Fisher, 98 303. 329. And if the debt, for which the note was taken as security, has since been paid, he can recover nothing. Roche ». Ladd, (1 A.) 83 436; Drink- house v. Surette, (1 A.) 83 443, note. 330. A suspicion that there is a defective title, or knowledge of circumstances which might excite suspicion in a cautious person, or even gross negligence, not amounting to fraud or bad faith, will not defeat the title of the pur- chaser. Spooner v. Holmes, 102 503; Smith v. Livingston, 111 342; Freeman's Nat. Bk. v. Savery, 127 75, 79. • 331. Where the circumstances are such as to affect the holder with notice, that does not pre- vent his recovering, unless the payee would have been prevented from recovering by mat- ters which had occurred at the time of the Fisher «. Leland, (4 C.) 58 456; Prouty v. Roberts, (6 C.) 60 19; Pres- cott v. Brinsley, (6 C.) 60 233; Barker ■o. Valentine, (10 G.) 76 341; Barker v. Parker, (10 G.) 76 339; Tucker «. Jenckes (5 A.) 87 330; Patten v. Glea- son, 106 439. 332. But one who took, with notice, a note given to compromise a criminal charge, cannot recover, whether the person was or was not guilty. Gorham v. Keyes, 137 583. 333. Where the indorsement by the payee is to his use, the indorsee takes, subject to all equities against the payee. Ayer v. Hutchins, 4 370; Wilson e. Holmes, 5 543. 334. And oral evidence is admissible to show that an indorsement, in the ordinary form, is to the payee's use. Ayer v. Hutchins, 4 370; Barker v. Prentiss, 6 430. BILL OF EXCHANGE AND PEOMISSOEY NOTE, V, (4). 145 335. If the holder, when he took the note, knew that a defect existed, he is chargeable with knowledge of all the circumstances. Knapp v. Lee, (3 P.) 20 452; Cone v. Baldwin, (12 P.) 29 545. 336. But the mere fact that he knew for what consideration the note was given, does not charge him with notice of fraud, illegality, or other defect, not necessarily growing out of the consideration. Cone v. Baldwin, (12 P.) 29 545; Goddard v. Lyman, (14 P.) 31 268. 337. An acceptor of a bill or a maker of a note, who pays the bolder, having the custody thereof, is protected ; but if the payee has not the custody, and gives a receipt, the payment is at the risk of the person paying. "Wheeler v. Guild, (20 P.) 37 545. 338. Qu., whether a note, showing upon its face that is secured by a mortgage upon real property, carries with it notice, which subjects the holder to equities between the parties thereto. Strong b. Jackson, 123 60. 339. An advertisement by the drawee, is not per se notice that a bill was obtained by fraud, to one who took it subsequently. Kellogg v. French, (15 G.) SI 354. 340. "Where interest on a note is payable by instalments, the fact that some of the instal- ments have matured, and that payment thereof is not indorsed upon the note, is not per se no- tice, to one who takes it, of equities between the original parties, but is for the jury. Nat. Bk. North America v. Kirby, lOS 497. 341. But a failure to pay an instalment of principal ren'ers a note overdue, and charges the holder with the equities between the origi- nal parties. Vinton v. King, (4 A.) 86 562. 342. That the indorsee knew that a prior in- dorsee, from whom he received the note, was engaged in the illegal sale of spirituous liquors, does not put him upon inquiry as to the consid- eration. Estabrook v. Boyle, (1 A.) 83 412. [As to the circumstances which charge a holder with notice, that a note, given in the name of a part- nership, was issued without authority, or is subject to equities between the partners, see Partner- ship, II, (2), III.} 343. One who takes an overdue note is sub- ject to any equities between the original par- ties, or any release from, payment to, or offset against, any prior holder, existing while he held it. Gold v. Eddy, 1 1; Baker v. "Wheaton, 5 509; Hemmenway v. Stone, 7 58- Peabody v. Peters, (5 P.) 22 1; Ste- vens v Bruce, (21 P.) 38 193; Har- ris v. Brooks, (21 P.) 38 195; American Bk. 1>. Jennegs, (2 Met.) 43 288; Potter «. Tyler. (2 Met.) 43 58; Howard ■». Ames, (3 Met.) 44 308; Goodwin v Morse, (9 Met.) 50 278; Bond ». Fitz- patrick, (4 G.) 70 89; Fish v. French, (15 G.) 81 520. 344. A mere debt from the payee to the maker, not filed in set off, is no defence; but an agreement between them, WLereby such a debt, or any other property, or an agreement, was taken as payment, is a defence, complete or par- tial, as the case may be. Vol. 1—19 Clark v. Leach, 10 51; Peabody v. Peters, (5 P.) 22 1; Sargent v. South- gate, (5 P.) 22 312; Braynard «. Fisher, (6 P.) 23 355; Grew ». Burditt, (9 P.) 26 265. Contra, Stockbridge v. Damon, (5 P.) 22 223, overruled as far as it con- flicts. 345. The burden is on the maker, to show that the note was negotiated after maturity, and that the set off, agreement, or payment, on which he relies, was made or accrued before the transfer. "Webster v. Lee, 5 334; "Wilbour v. Turner, (5 P.) 22 526; Ranger v. Carv, (1 Met.) 42 369; Baxter v. Little, (6 Met.) 47 7; Balchi'. Onion, (4 C.) 58 559; Noxono. DeWolf, (10 G.) 76 343. Contra, Sargent v. Southgate, (5 P.) 22 312, overruled r s far as it conflicts. 346. But where there is no evidence as to the time when a thief negotiated interest cou- pons, stolen before maturity, and all the prior holders, who can be traced, took them after maturity, there is no presumption that they were negotiated by him before maturity. Hinckley ». Merchts. Nat. Bk. 131 147. 347. One who takes a promissory note from the person to whose order it is payable, before it matures, which is indorsed after maturity, is subject to equities, as if it was taken after ma- turity. Lancaster Nat. Bk. ». Taylor, lOO 18. 348. Aliter, as to a set off, Ranger v. C'ary, (1 Met.) 42 369, ex- plained in the case last cited. And see, on the same subject, Flint v. Flint, (6 A.) 88 34. 349. A promissory note, transferred on the last day of grace, is deemed to be overdue, within the rule relating to equities be. ween the prior parties. Pine v. Smith, (11 G.) 77 38. 350. It is no defence to an action by an in- dorsee against the maker of a promissory note, payable on demand, that the maker and the payee are partners, and their accounts are not settled. Perkins ». Young, (16 G.) 82 389. 351. Before the statute, St. 1839, Ch. 121; G. S., Ch. 53, § 10; P. S.. Ch. 77, § 14, if a note on demand was transferred within a rea- sonable time after its date, it was not deemed overdue, so as to let in equities and defences between maker and payee. Aliter, if after a reasonable time. Ayer v. Hutchins, 4 370; Thurston ». McKown, 6 428; Stockbridge v. Da- mon, (5 P.) 22 223; Thompson v. Hale, (6 P.) 23 259; Sylvester v. Crapo, (15 P.) 32 92; Stevens v. Bruce, (21 P.) 38 193; Ranger «. Cary, (1 Met) 42 369; American Bk. v. Jenness, (2 Met.) 43 288. 352. That statute does not apply to a check on a bank. First Nat. Bk. Rochester v. Harris, 108 514. 353. Since the statute, any matter is a de- fence to a note on demand in the hands of an indorsee, which would be a defence if the suit was brought by the promisee. 146 BILL OF EXCHANGE AND PEOMISSOEY NOTli, V, (4), (5). Brooks v Twitchell, (6 Met.) 47 513; Bond «. Fitzpatrick, (4 G.) 70 89; Stevens v. Wood, 127 123. 354. The statute makes a set off against the promisee a defence. Lewis a. Brooks, (9 Met.) 50 367. 355. But it does not apply to a mere dis- ability to sue, as where the payee is a member of a firm who are the makers. Thayer a. Buff urn, (11 Met.) 52 398. 356. And an admission by the payee, after indorsement, is not rendered competent by the statute. Wheeler a. Rice, (8 C.) 62 205. 357. The transferee of a demand note, pay- able to A or bearer, is an indorsee, within the statute. ■ Brooks v. Twitchell, (6 Met.) 47 513. 358. Paj r ment to the payee, after notice of the transfer, is not a defence under the statute. Brooks?). Twitchell, (6 Met.) 47 513. 359. Possession of a note, transferable by de- livery, is prima facie evidence of title. Northampton Bk. a. Pepoon, 11 288; Wheelers Guild, (20 P.) 37 545; Pettee a. Prout, (3 G.) 69 502; Andrews a. Lyons, (11 A.) 93 349. 360. So is possession by one who calls him- self by the name of the payee. Chaffee a. Taylor, (3 A.) 85 598. 361. The rule is the same, where the note is in the hands of an executor or administrator. Truesdell a. Thompson, (12 Met.) 53 565. 362. Where a note bears only the blank in- dorsement of the payee, the presumption is that the holder received it directly from him. Peaslee a. Robbins, (3 Met.) 44 164. 363. The maker of a note, sued by the in- dorsee, who seeks to introduce a defence of payment between him and the payee, must show that the payee then held the note. Webster a. Lee, 5 334. 364. The possession of a negotiable note by an indorsee, affords c presumption that the plaintiff took it before maturity, and for a val- uable consideration; but where the maker shows that it was founded upon illegality, or obtained or put in circulation by fraud, the burden of proof is upon the indorsee to show, that he took it for value, and before maturity. Munroe v. Cooper, (5 P.) 22 412; Bissella. Morgan, (11 C.) 65 198; Sis- termans v. Field, (9 G.) 75 881; Holder* v. Cosgrove, (12 G.) 78 216; Tucker a. Morrill, (1 A.) 83 528; Smith a. Edge- worth, (3 A.) 85 233; Clark v. Thayer, 105 • 216; Nat. Bk. N. America a. Kirby, 108 497; Emerson a. Burns, 114 348. 365. Also that he purchased it in good faith; for which purpose all the attendant circum- stances are to be considered. Estabrook a. Boyle, (1 A.) 83 412; Smith a. Livingston, 111 342; Sullivan v. Langley, 120 437. . .366. Want of consideration, between the drawee and acceptor of a foreign bill of ex- change, is no defence to an action against the acceptor by the payee, although he took the bill before acceptance. Arpin a. Owens, 140 144. See, also, Davis a. Randall, 115 547. (5.) Defences in other cases. 367. In an action by the payee against the maker, the defendant may show that the note was given as the premium on a policy of life in- surance, upon an agreement with the company, that if, within a certain time, the defendant so elected, he might return the policy to the plain- tiff, (who was the company's agent), and take back the note; and that he so elected to return the policy. Watkins a. Bowers, 119 383. 368. Oral testimony is not competent to show that a note or bill of exchange, payable abso- lutely on its face, was to be paid only on a con- dition. Such evidence does not show want or failure of consideration. Hanson Trustees a. Stetson, (5 P.) 22 506; Spring a. Lovett, (11 P.) 28 417; St. Louis P. Ins. Co. a. Homer, (9 Met.) 50 39; Adams a. Wilson, (12 Met.) 53 138; Underwood a. Simonds, (12 Met.) 53 275;Hancheta. Birge, (12 Met.) 53 545; Allen a. Furbish, (4 G.) 70 504; Wright a. Morse, (9 G.) 75 337; Perkins «. Young, (16 G.) 82 389; Camera. Sears, (4 A.) 86 336; Tower a. Richardson, (6 A.) 88 351; Currier a. Hale, (8 A.) 90 47. See, however, Boutelle a. Whea- ton, (13 P.) 30 499. 369. Or that, by a simultaneous agreement, the payee undertook not to enforce the note or bill against the defendant, absolutely, or upon the happening of a contingency. Crosman a. Fuller, (17 P.) 34 171; Davis a. Randall, 1 15 547; Barnstable Sav. Bk. a. Ballou, 119 487. 370. But an oral agreement, that a note shall be paid by a conveyance or transfer, or other- wise in a particular way, or shall not be paid till an event happens, if it is executed by all the parties without objection, affords a defence to the note. Gleason a. Saunders, 121 436. 371. And the defendant may show, by oral testimony, that the note was given as collateral security for certain liabilities, incurred by the payee for him; and that the payee had suffered no loss thereby, this being a failure of considera- tion. Slade a. Hood, (13 G.) 79 97. 372. And where the condition, upon which the note is to take effect, or to be cancelled, is expressed in a simultaneous written instrument, the defendant is not put to his cross action, but may defend on that ground. Watkins a. Bowers, 119 383; Penn Mut. L. Ins. Co. a. Crane, 134 56. 373. But in an action on a note, the defendant cannot recoup damages sustained by an in- dependent contract, although it relates to the consideration; but he is put to his cross action. Brighton F. C. Sav. Bk. a. Sawyer, 132 185. See, also, Serton v. Wood, (17 P.) 34 110; Pitkin a. Frink, (8 Met.) 49 12; Waterhouse v. Kendall, (11 C.) 65 128; Traver a. Stevens, (11 C.) 65 167; Loring a. Otis, (7 G.) 73 563; Ste- vens a. Miller, (13 G.) 79 283; Stanton a. Maynard, (7 A.) 89 335; Hodgkinsfl. Moulton, 100 309; Turner e. Rogers, 121 12. 374. The question, whether a note was given and received absolutely, or as collateral security BILL OF EXCHANGE AND PEOMISSOEY NOTE, V, (5). 147 is one of intention, and is for the jury, or the judge trying questions of fact, where the evi- dence is conflicting. For illustrations of this rule, under the peculiar circumstances of each case, see Wyetho. Nat. Market Bk., 132 597; Costelo v. Crowell, 134 280; Proctor 0. Whitcomb, 134 428. 375. Where a negotiable note is indorsed to a bank by the payee, as collateral security for a specified demand, on which he is liable, and that demand is paid, the maker, under authority of the indorser, may successfully defend an action by the bank, attempting to hold it for other demands against the indorser. Neponset Bk. v. Leland, (5 Met.) 46 259. 376. And similarly it is no defence, to an ac- ction by the payee of a promissory note against the maker, that the payee had pledged it as col- lateral security for a debt, payment of which he had since tendered, but the pledgee refused to accept. Wolcott 0. Boston Faucet Co., (9 G.) 75 376. [See, also, Collateral Security, and ante, art. 32S, 329J 377. It is no defence to an action on a note by the payee, that it was given under a mutual mistake in reference to a future imaginary or speculative event. Cartwright v. Gardner, (5 0.) 59 273. 378. Where the payee of a bill of exchange, during business hours, presents it and surren- ders it to the drawee, on receiving the latter's check for the amount, which is not presented until the next day, and then is not paid, the drawer is discharged. Fernald «. Bush, 131 591. 379. And where, under such circumstances, the drawer gives a note for the amount of the bill, in ignorance of the delay in presenting the check, he is not liable thereupon. Fernald 0..Bush, 131 591. See, also, - Mackay 0. Holland, (4 Met.) 45 69. 380. Where a note was procured by a fraud, and before maturity, and before discovering the fraud, the maker, at the request of an in- nocent indorsee, gives, in substitution for it, a new note, payable to the original payee, he may set up the fraud, in an action upon the latter by the payee, either as a defence or by way of re- coupment. Sawyer v. Wiswell, (9 A.) 91 39. 381. So, in an action by the payee, upon a note payable on demand, the maker may set up a breach of a warranty by a third person, to whom the note was given on a purchase of goods, although there is no proof that the payee took it otherwise than for value, and without notice. Aldrich *>. Stockwell, (9 A.) 91 45. 382. It is a defence to a promissory note, that it was erroneously dated to avoid a prohibitory statute, or the like, but not that it was so dated by mistake. Bayley v. Taber, 5 286; Royce v. Barnes, (11 Met.) 52 276. 383. The maker of a note, pledged by the payee as collateral security to a partnership, for a debt which is subsequently paid, is liable to the payee therefor, notwithstanding a subse- quent payment to one of the partners, the other partner then having the note in his possession. Wheeler v. Guild, (20 P.) 37 545. 384. It is no defence that a promise to pay the maker's debt to a third person, which formed the consideration of a note, has not been fulfilled. Hubon «.Park, 116 541. 385. Where two persons exchange notes, each note is a sufficient consideration for the other; and the holder may recover, though he took it when overdue. Eaton 0. Carey, (10 P.) 27 211; Hig- ginson v. Gray, (6 Met.) 47 212; Whit- tier v. Eager, (1 A.) 83 499; Backus 0. Spaulding, 116 418. 386. A sale and transfer of a third person's note is a sufficient consideration for a note; and the maker cannot defend, on the ground that he failed to realize from the note received by him. Adams v. Wilson, (12 Met.) 53 138; Luke v. Fisher, (10 C.) 64 271. 387. An action will not lie upon a note, given in renewal of a note invalid for want of consideration. Hill .Buckminster, (5 P.) 22 391; Comm. Ins. Co. v. Whitney, (1 Met.) 42 21. 388. But where the original note was upon a sufficient consideration, that will support a re- newal note. Plimpton v. Goodell, 126 119. 389. An acceptor of a bill, who has funds of the drawer in his hands, cannot defend against the payee, on the ground that the drawer had assigned the funds, before acceptance, without the payee's knowledge. Tucker 0. Welsh, 17 160. 390. The drawer cannot defend, on the ground that the payee has discharged the ac- ceptor, unless he had funds of the drawer in his hands. ^ Sargent v. Appleton, 6 85. 391. An acceptor cannot defend against an indorsee, on the ground that he has been trusteed by a creditor of the indorser, who was the plaintiff's factor. Van Staphorst 0. Pearce, 4 258. 392. Signing a note for another's accommo- dation, with a blank left, authorizes him to fill up the blank as he sees fit. Androscoggin Bk. v. Kimball, (10 CA 64 373. 393. An oral agreement to look to one only of two joint makers is not a discharge of the other, nor, unless there is a consideration, is it a discharge of the one with whom it is made. Shaw 0. Pratt, (22 P.) 39 305; Smith 0. Bartholomew, (1 Met.) 42 276. 394. An unsatisfied judgment against, or a discharge of, one of two joint makers, is a de- fence to a subsequent action against both. Ward 0. Johnson, 13 148; Bryant 0. Smith, (IOC.) 64 169. 395. But the discharge of a joint and several maker is not a bar to an action against the other. Ruggles 0. Patten, 8 480. 396. Payment of a note to a third person, by direction of the payee, is a defence to an aetioa 148 BILL OF EXCHANGE AND PKOMISSORY NOTE, V, (5), (6). by the latter, although the note was not in- dorsed or delivered to the third person. Groves v. Brown, 11 334. 397. Payment by another note, which was avoided for usury, is not a defence to the first note, although surrendered. Ramsdell v. Soule, (12 P.) 29 126. 398. It is only a defence pro tanto, that the maker has assigned his property for the benefit of creditors, including the holder, and the lat- ter has received partial payment under the as- signment. Rice v. Catlin, (14 P.) 31 221. 399. It is not a defence to the maker of a note, not an accommodation note, that the holder took it from the payee for less than its face, and upon an oral agreement to collect only what he paid. Babson «. Webber, (9 P.) 26 163. 400. Where the payee, intending to renew a note, by mistake takes the note of another, the maker is still liable on the first note, the second being surrendered at the trial. " Hedge e. McQuaid, (11 C.) 65 352. 401. Where, by agreement, a, balance was left due upon a note, to indemnify the maker for signing a bond as surety for the payee, that is a good defence. Ward b. Winship, 12 481. 402. An agreement that a note, given upon a conveyance to defraud creditors, should never be collected, is not a defence to an action by the payee's administrator. Martin v. Root, 17 222. 403. A note, given upon an agreement that the payee's prior smaller note, held by the maker, should be set off pro tanto, is wholly unpaid until the agreement is executed. Cary v. Bancroft, (14 P.) 31 315. 404. A note, given on a compromise of a mortgagee's action for the insurance of a vessel to him, cannot be defeated by the subsequent discovery of the general owner's fraud in caus- ing the loss of the vessel. Barlow v. Ocean Ins. Co., (4 Met.) 45 270. 405. Where the assignees of an insolvent have retaken goods sold by the insolvent, for which the purchaser had given his note, in an action by the subsequent indorsee of the insol- vent, with notice, the defendant's liability de- pends upon the question, whether the retaking was a lawful rescission of the sale, for fraud or otherwise, or whether it was wrongful, and of that the jury must judge. Spaulding v. Hood, (8 C.) 62 602. 406. Where the creditor of an insolvent, to se- cure an unlawful preference, procures the debtor to sell goods to another, and to indorse to himself a note received therefor, and the as- signee in insolvency elects to avoid the transfer, and recovers the value of the goods, that is a good defence to the note, although the maker was a party to the fraud. Potter v. Belden, 105 11. 407. Where a note was given for the pur- chase price of land, and the payee, by agree- ment with the maker, bought in the rights of all prior attaching creditors, and offered to convey them to the maker, if he would pay the note, which the latter refused to do; whereupon the payee transferred those rights to another and indorsed the proceeds oh the note; the maker is liable for the balance. Sexton i!. Wood, (17 P.) 34 110. 408. In an action by an indorsee after ma- turity, oral evidence is admissible to show, as a defence pro tanto that, after the making of the note, the parties agreed that a bill of sale, under seal, made to the payee by the maker, contem- poraneously therewith, should be deemed a mortgage to secure the note, and that the payee had sold the property and received the pro- ceeds . ' Creech v. Byron, 115 324. 409. In an action on a note, evidence that some person, unknown to the defendant's coun- sel, has paid the amount of it to the plaintiff, is incompetent. Whittier «. Eager, (1 A.) 83 499. [See, also, Alteration of Instrument ; Fraud; Usury; and ocher titles relating to particular de- fences.] (6.) Evidence; damages. [For additional or parallel cases upon the ques- tions considered under this head, see Damages; Evidence.] 410. In an action on a note, secured by a mortgage on real property, the answer in which admits the making of the note, and alleges that the plaintiff so fraudulently conducted a sale, under the power in the mortgage, that it brought less than the amount due upon the note, if the plaintiff produces the note on the trial, the burden of proof is on the defendant. Wadsworth v. Glynn, 131 220. 411. So where the note was transferred as collateral security, and the. defendant contends that the debt secured is paid. Hilton v. Smith, (5 G.) 71 400. See, also, Burnham v. Allen, (1 G,) 67 496. 412. So where the defence is a breach of the agreement forming the consideration. Jennisonu Stafford, (1 C.) 55 168. 413. Or a breach of warranty, or false and fraudulent representations. Packard v. Clapp, (11 G.) 77 124. 414. Or that the consideration was illegal. Wyman v. Fiske, (3 A.) 85 238. 415. But where evidence is given on both sides, the burden is on the plaintiff to satisfy the jury. Delano v, Bartlett, (6 C.) 60 364. [See, further, as to the burden of proof, ante, arts. 89, 90, 345, 346, 363 to 365. As to the presumption of title from the possession of a note, see, ante, arte. 359 to 362.] 416. Possession of a note or bill of exchange, by a party liable to pay it, is prima facie evi- dence, as against prior parties, that he has paid it. Baring «. Clark, (19 P.) 36 220.; Mc- Gee v. Prouty, (9 Me*.) 50 547. 417. But not that a joint maker, as against hi* co-maker, has paid the whole. Heald v. Davis, (11 C.) 65 318. 418. If a note is found among the maker's papers, after his death, the presumption is that it was paid according to the tenor thereof. Richardson v. Cambridge, (2 A.) 84 118. [A. to oral evidence to explain or affix conditioM to a note, see, ante, V (5).] BILL OF EXCHANGE AND PEOMISSOEY NOTE, V, (6). 149 419. In an action by the first indorsee of a bill of exchange against the drawer, the indorse- ment of the payee must be proved, if not ad- mitted. Blakcly i>. Grant, 6 386; Dana «. Underwood, (19 P.) 36 99. 420. But in an action by a subsequent indorsee against his indorser, the signatures of prior parties need not be proved. State Bk. v. Fearing, (16 P.) 33 533. 421 . A demand from the maker of a note need not be proved, although the declaration alleges a demand. Burnham «. Allen, (1 G.) 67 496. 422. An allegation of demand and notice is proved by a waiver thereof. Taunton Bk. v. Richardson, (5 P.) 22 436; Harrison v. Bailey, 99 620; Arm- strong v. Chadwick, 127 156. 423. But the admission of an indorser, that the maker had informed him that a demand had been made, does not prove a demand. Tower v. Durell, 9 332. 424. The declarations of a former holder are admissible against an indorsee after dishonor, or before maturity, with notice. Sylvester v. Crapo, (15 P.) 32 92; Harris «. Brooks, (21 P.) 38 195; Fisher i). Leland, (4 C.) 58 456. 425. But the admissions of the payee of a note on demand, made after the indorsement, are not admissible. Wheeler «. Rice, (8 C.) 62 205. [See, further, on this subject, Evidence, VI, (3).] 426. Qu., if an allegation of notice can be supported by proof of due diligence. Blakely*. Grant, 6 386. 427. Notice may be inferred, without express proof, from acts of the indorser. Andrews v. Boyd, (3 Met.) 44 434. 428. An allegation of demand from the prom- isor is supported by proof that he had notice, according to the usage of banks, that the note was at the bank. Jones v. Fales, 4 245; City Bk. v. Cutter, (3 P.) 20 414; North Bk. v. Abbot, (13 P.) 30 465. [See, also, Bank, III, (4).] 429. A written agreement by the indorsee to pay a note, is evidence that it was made and in- dorsed for his accommodation. Kellogg ii. Barton, (12 A.) 94 527. 430. But evidence, that the maker put prop- erty into the first indorsees hands, does not tend to prove that his indorsement was for the accommodation of the maker only, and not of the maker and second indorser. Farnum v. Farnum, (13 G.) 79 508. 431. The defendant's answer to an interroga- tory, filed by the plaintiff, that he made a note something of the purport of the one declared upon, is enough to go to the jury. Nichols «. Allen, 112 23. 432. The plaintiff's book of accounts and sup- pletory oath are not competent evidence of the consideration of a note to him. Rindge v. Breck, (10 C.) 64 43. . 433. In an action by an indorsee upon a note, upon which a payment was indorsed without date, proof that a considerable sum of money was paid to the payee on a particular day, and indorsed by him on a note which he produced, will support a finding of the jury, that the note was not transferred until after that day. Stevens «. Bruce, (21 P.) 38 193. 434. Where the maker of a demand note pays the amount of the same to the payee, taking a receipt, which states that it is to be given up " when called for," the note itself having been transferred by the payee to a bank as collateral security, this is not evidence of any authority to the payee to reissue the same, after he has taken it out of the bank. American Bk. v. Jenness, (2 Met.) 43 288. [As to protest of a foreign bill of exchange as evi- dence, see ante. III, (5).] 435. As to the statutory provisions relating to damages on a bill of exchange, see G. S., Ch. 53, §§ 11 to 14; St. 1863, Ch. 201, §§ 1, 2; P. S., Ch. 77, §§ 18 to 21, and Grimshaw v. Bender, 6 157; Barclay v. Minchin, 6 162; Forbes «. Eldridge, 9 497. 436. The maker of a note is not liable for the costs of a protest. City Bk. ■». Cutter, (3 P.) 20 414. 437. Where the release of a note is avoided by an administrator, as having been executed in fraud of creditors, the maker is liable for the full amount, although it exceeds the debts. Martina Root, 17 222. 438. An acceptor is liable to the payee or in- dorsee, only for the amount of the bill and interest, and not for damages caused by the non-payment. Bowen v. Stoddard, (10 Met.) 51 375. 439. Where the only question, raised at the trial, is whether the plaintiff can recover the whole amount or nothing, he cannot insist, on exceptions, that he was entitled to a verdict for part. Lincoln v. Lincoln, (12 G.) 78 45. 440. Where a note is given for the purchase of land, the deed for which contains certain conditions, and the maker sells the land to A and B, who assume performance of the condi- tions, and the payee of the note releases part of the land from the conditions, an action lies for the full amount of the note, less the sum re- ceived for the release. Real Estate & B. Co. i>. Tufts, 127 391. 441. Upon a note, given for the purchase of land with warranty, the maker is not entitled to a deduction for an outstanding claim, if he has not been disturbed in his possession. Lothrop «. Snell, (11 C.) 65 453. 442. Interest is recoverable upon a promis- sory note, without a separate count therefor. Hall v. Foster, 114 18. 443 A purchaser of a chattel is entitled to re- duce damages, in an action by the vendor upon a note given therefor, for partial failure of con- sideration, deceit as to the quality or value, or breach of warranty. Harrington v. Stratton, (22 P.) 39 510; Perley »."Balch, (23 P.) 40 283; Good- win *. Morse, (9 Met.) 50 278. [See, also, ante, I (6); V, (5).] 150 BILL OF EXCHANGE, ETC., V, (7)— BILL OF LADING-. 444. A party to a note, who represents that his signature is genuine, or that the note is valid, is liable for the full amount thereof, to one who took it on the faith of the representa- tion, although it was taken at a discount, and the signature was a forgery, or the note other- wise invalid in the payee's hands. Tobey v. Chipman, (13 A.) 95 123; Fall R. Nat. Bk. v. Bufflnton, 97 498. 445. In an action against a surety upon a note, the defendant is entitled to a deduction for any dividends received by the plaintiff, pend- ing the action, under an assignment of the prin- cipal's property for the benefit of creditors. Lincoln v. Bassett, (23 P.) 40 154. 446. The payee of a note, given on his prom- ise to pay certain notes of the maker indorsed by him, can recover only the amount paid by him before judgment. Little v. Little, (13 P.) 30 426. 447 A bona fide holder of a note as collateral security, or pledgee, where the payee or a pledgor cannot maintain an action thereupon, can re- cover only the sum necessary to indemnify him. Chicopee Bk. v. Chapin, (8 Met.) 49 40; Stoddard v. Kimball, (6 C.) 60 469; Williams*. Cheney, (3 G.) 69 215;Fisher v, Fisher, 98 303. [See, also, ante, V, (4).] (7.) Ijost, stolen, or destroyed bill or note. 448. The owner of a stolen interest coupon, or promissory note, payable to bearer, and not paid by the promisor, may recover the amount thereof, on filing a sufficient bond for the de- fendant's indemnification. Falesc. Russell, (16 P.) 33 315; Almy v. Reed, (10 C.) 64 421; McGregory v. McGregory, 107 543; Tuckers. Tucker, 119 79; Hinckley®. Union Pacific R. R., 129 52. 449. If the promisor pays, after maturity, such a stolen interest coupon, which is so num- bered as to be distinguishable, after notice that it has been stolen, and without inquiry, the amount thereof may be recovered by the true owner, although the notice did not offer an in- demnity, and the promisor is a corporation, with a large number of such coupons out- standing. Hinckley v. Union Pacific R. R., 129 52. 450. An allegation that a note is lost is sus- tained by proof of destruction by fire. McGregory *. McGregory, 107 543. 451. Where a bond will not adequately pro- tect a party, the owner of the note cannot sustain an action against him upon a lost note. Tower v. Appleton Bk., (3 A.) 85 387; Tuttle v. Standish, (4 A.) 86 481. 452. A bill in equity will lie, to enforce pay- ment of a lost bill of exchange, upon such terms as will, in the discretion of the court, secure the party from injury. Savannah Nat. Bk. v. Haskins, 101 370. 453. In an action upon a note, where a wit- ness called by the plaintiff, produces the note, but contends that it is his own property, the court cannot either compel the witness to pro- duce it in evidence, to enable the plaintiff to recover, or allow the plaintiff to recover upon it as a lost note. Cobb i). Tirrell, 141 459. See, also, Cobb v. Tirrell, 137 143. Bill of exceptions. [See Exception.] Bill of lading. [See, also. Bailment, II, (1); Carrier, I, in Shipping, III, (3) ; Usage.] 1. Apart from usage, there is no rule of law requiring a carrier to give, or a shipper to ac- cept, a bill of lading. Putnam v. Tillotson, (13 Met.) 54 517; Johnson v. Stoddard, 100 306. 2. A bill of lading, even when running to order or assigns, is, not a negotiable instrument, but a symbol or representative of the goods to which it relates; and the rights, arising out of the transfer thereof, correspond, not to the in- dorsement of a negotiable instrument, but to those arising out of the delivery of the property under similar circumstances. Stollenwerck ». Thacher, 115 224. See, also, Brown v. Babcock, 3 29; Row- ley v. Bigelow, (12 P.) 29 307. 3. As long as the bill of lading remains in the hands of the original party, or of an agent, intrusted with it, but without power to sell or pledge, he who gets possession of it, without authority of the owner, although with the as- sent of the agent, acquires no title as against the principal. Stollenwerck v. Thacher, 115 224 4. The statute, protecting persons dealing with one holding a bill of lading (G. S., Ch. 54, | 2; P. S., Ch. 71, § 1), does not apply to a special agent intrusted with a bill of lading, with instructions to deliver it only on certain specified terms. Stollenwerck «. Thacher, 115 224. 5. The transfer of an inland bill of lading by the eonsignee, to one making advances, is not a mortgage, but vests a property in the goods, enabling him to maintain trover or replevin therefor. DeWolf «. Gardner, (12 C.) 66 19; Cairo Nat. Bk. v. Crocker, 111 163; Green Bay Nat Bk. •». Dearborn, 115 219; Chicago Nat. Bk. v. Bayley, 115 228; Hathaway®. Haynes, 124 311; Forbes ®. Boston & L. R. R., 133 154. 6. The delivery of the bill of lading is in law the delivery of the property, and it is not neces- sary that the transferee should take possession, immediately upon its arrival, or give notice of the transfer to the carrier or warehouseman. Forbes v. Boston & L. R. R., 133' 154. 7 Where goods purchased are sent by a car- rier, and neither the bill of lading, nor the direc- tion upon them, enables him to deliver them to the purchaser, and they are consequently lost, the purchaser may recover back the price from the vendor. Finn v. Clark, (10 A ) 92 479. BILL OF LADING. 151 8. And he is not deemed to have waived the omission, because he received a copy of the im- perfect hill of lading before payment was made, and omitted to complain thereof; and afterwards made diligent inquiry for the goods, and claimed them as his own; unless he intended thereby to waive it. Finn ». Clark, (10 A.) 92 479; Finn ». Clark, (12 A.) 94 522. 9. The purchaser may testify that he did not notice the omission, till after the goods were lost; and he may prove prior purchases of simi- lar goods from the same vendor, which were sent by the same carrier, with proper hills of lading, and reached him. Finn v. Clark, (12 A.) 94 522. 10. An instruction to the jury, that the ven- dor might remedy his omission, by giving to the carrier subsequent information, and fur- nishing proper vouchers to the purchaser, etc., affords the vendor no ground for exception. Finn v. Clark, (12 A.) 94 523. 11. A carrier, who delivers goods to the con- signee, without production of the hill of lading, although upon his representation that it is in his possession, is liable to a previous transferee thereof for value. Newcomb v. Boston & L. E. R., 115 230; Alderman v. Eastern R. B., 115 233. [See, however, Usage.] 12. And where the bill of lading is attached to a draft for the value, and sent by the same carrier for collection, with a freight bill direct- ing delivery upon payment, he is liable, if he delivers the goods without payment of the draft, although he received the goods from one car- rier, and the draft from other. Lihby v. Ingalls, 124 503. 13. The indorser of a draft, attached to a bill of lading, may maintain a bill in equity against the consignee and his pledgee, to enforce the trust created thereby. Mich. St. Bk. v. Gardner, (15 G'.) 81 362. 14. But where the bill of lading and the draft are separate, the indorsee of the draft gets no title to the goods, as against the consignee, al- though the draft purports to be drawn against the goods, and is presented to the consignee, and his acceptance requested. Exch. Bk., St. Louise. Rice, 107 37. 15. And the consignee, who refuses to accept a draft delivered with a hill of lading, is liable to the holder of the draft for the proceeds of the goods, when sold by him. Allen ». Williams, (12 P.) 29 297. 16. A hill of lading to A, or his assigns, must be indorsed and delivered, to enable the transferee to hold the goods. Buffington v. Curtis, 15 528; Peters v. Ballistier, (3 P.) 20 495; Stone «. Swift, (4 P.) 21 389. 17. A bill of lading passes no title, even to the consignee named therein, until delivery by a person authorized to do so. Allen v. Williams, (12 P.) 29 297. 18. But shipping goods pursuant to an order, and obtaining a bill of lading, making them de- liverable to the person ordering, is a construc- tive sale and delivery. Stanton e. Eager, (16 P.) 33 467. 19. A bill of lading, with a blank for the consignee's name, gives no title to the person receiving it from the shipper, until he fills the blank with his own name; and if he fills the blank with another's name, and delivers the bill to him, the effect is the same, as if the latter's name had been inserted in the first place. Chandlers Sprague, (5 Met.) 46 306. 20. A bill of lading, although prima facie evidence of property in the hands of the in- dorsee, may be explained, so as to show an intent only to hind the proceeds for his ad- vances Low ii. De Wolf, (8 P.) 25 101. 21. Or, as between the shipper and the car- rier, or against those having no greater rights than the shipper, to show fraud or mistake; but not as against one who has advanced money upon the faith of it. Portland Bk. v. Stuhbs, 6 422; Row- ley i). Bigelow, (12 P.) 29 307; Sears «. Wingate, (3 A.) 85 103; Hall v. Mayo, (7 A.) 89 454; Ryder «. Hall, (7 A.) 89 456. 22. The same rule applies as to the acknowl- edgment that the goods were in good condition. Barrett ®. Rogers, 7 297; Hastings v. Pepper, (11 P.) 28 41; Shepherd v. Nay- lor, (5G.) 71 591. 23. 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. Graves v. Lake Shore & M. S. Railroad, 137 33. 24. Where the bill of lading for iron speci- fies the number of tons, but adds, "weight un- known," it binds, at least the original parties, or those having no greater rights, for only the actual quantity shipped. Shepherd v. Naylor, (5 G.) 71 591. 25. So where it recites the number of bushels of corn shipped, and adds "more or less." Kelley v. Bowker, (11 G.) 77 428. 26. Where the hill of lading for a sea voyage stipulates that certain of the goods may be car ried on deck, oral evidence is not admissible to show that the shipper agreed that other goods should he so carried. Sayward v. Stevens, (3 G.) 69 97. 27. Where it stipulates for carripge from one port to another, a direct voyage is presumably intended, but the party may show usage to stop at intermediate ports, or knowledge, on the part of the shipper, of an intention to do so. Lowry «. Russell, (8 P.) 25 360. 28. And such a bill is not conclusive, as to the course or the time of departure, where the charter party contains other stipulations, or other circumstances will prevent the voyage from being so made, and there is evidence tend- ing to show that the hill of lading was in- tended to be subject thereto. Cobb e. Blanchard, (11 A.\ 93 409. 29. The valuation of the cargo in a bill of lading is a test of value, in adjusting general average. Tudor v. Macomber, (14 P.) 31 34. 152 BILL OF LADING— BILL OF PAETICULAES. 30. A bill of lading, for the transportation of articles for a gross sum as freight, imports a contract to safely carry and deliver them all; and if part of the goods are lost in transitu by the fault of the master or the shipowner's agent, no freight is payable, unless the con- signee accepts the residue, although the master, under an authority to sell in the bill of lading, sells the residue by the description in the bill of lading, and makes up the deficiency to the pur- chaser; and the shipper may recover the pro- ceeds, without deduction for freight. Sayward v. Stevens, (3 G) 69 97. See, also, "Wallis v. Cook, 10 510. 31. An action will not lie, upon a marine bill of lading, where it became impossible to per- form the contract, without violating the law, as in case of a declaration of war. Browns. Delano, 12 370. 33. Under a bill of lading, requiring goods to be received at the ship's tackles, when ready for delivery, notice to the consignee, and a rea- sonable time to receive the goods at the ship's tackles, are necessary before freight is earned. Fayu. Alliance Ins. Co., (16 G.) 82 455. 33. And where the bill of lading recites the shipping of goods, to be landed at a particular place, they must be landed there from the ship, if this can be done in safety. Shaw v. Gardner, (12 G.) 78 488. 34. In an action upon a bill of lading, requir- ing the delivery of the goods in as good order as when received, dangers of navigation and fire excepted, after proof of failure to deliver, the burden is on the ship-owner to bring the case within the exception. Alden d. Pearson, (3 G.) 69 343. 35. On a bill of lading, requiring payment of "primage and average accustomed," oral evi- dence is competent, upon the question whether payment of primage was the custom at the port of shipment. Vose v. Morton, (5 G.) 71 594. 36. The shipper, named in the bill of lading, may sue the carrier for the goods, and is. liable to him for the carriage, although he does not own the goods. Blanchard v. Page, (8 G.) 74 281; Wooster «. Tarr, (8 A.) 90 270. 37. The acceptance by the consignee, of goods carried under a bill of lading, to be de- livered to him, "he paying freight therefor," raises a promise to pay the freight. Old Colony Railroad v. "Wilder, 137 536. [See, also, Carrier, I, (8).l [As to stipulations in a bill of lading, limiting the liability of the carrier, and other matters, see Car- bier, 111. ) Bill of particulars. 1. The court has power in any cause, civil or criminal, where it appears that justice cannot be done at the trial, without the aid of a bill of particulars, to direct such a bill to be seasonably furnished, and the party by whom it is fur- nished will be confined, at the trial, to the par- ticulars so specified. Comm. v. Pray, (13 P) 30 359; Jack- son v. Hall, (14 P.) 31 151; Comm. «. Snelling. (15 P.) 32 321; Turner v. Twmg, (9 C.) 63 512. 2. The question, whether a bill of particulars or specification of the facts required, shall be directed, is in any cause, civil or criminal, dis- cretionary with the court. Comm. v. Giles, (1 G.) 67 466; Gard- ner v. Gardner, (2 G.) 68 434; Comm «. Wood, (4 G.) 70 11; Blake «. Eve* ett, (1 A.) 83 248; Harrington v. Har- rington, 107 329. 3. Upon a libel for divorce, the court may, on motion, before the trial or at the trial, order specifications, or further specifications of the alleged criminal acts. Adams v. Adams, (16 P.) 33 254; Gardner v. Gardner, (2 G.) 68 434; Harrington v. Harrington, 107 329. 4. Upon an indictment for libel, if the defend- ant justifies, the court may require him to specify the particular instances of misconduct, which he expects to prove, and confine him to them. Comm. v. Snelling, (15 P.) 32 321. 5. So upon an indictment for barratry, the prosecution may be required to furnish to the defendant a bill of the particular acts of barra- try charged against him. Comm. v. Davis, (11 P.) 28 432. 6. So upon an indictment for keeping a liquor nuisance. Comm. v. Parrell, 105 189. See, also, Comm. v. Giles, (1 G.) 67 466. 7. In an action for damages for slander, if the plaintiff files a bill of particulars, he cannot, in general, give evidence of any words not con- tained therein. Clark v. Munsell, (6 Met.) 47 373; Stevens v. Hartwell, (11 Met.) 52 542. 8. In such an action, a count, alleging that the defendant charged the plaintiff with the crime of fornication, admits a specification that he charged her with being a strumpet, as the latter includes the former. Clark v. Munsell, (6 Met.) 47 373. 9. And where the bill of particulars specifies three conversations, and after' giving evidence of one, the plaintiff waives it, he can give evi- dence of three more conversations. Clark *. Munsell, (6 Met.) 47 373. 10. A bill of particulars of a set off will be ordered. Jackson v. Hall, (14 P.) 31 151. 11. A bill of particulars is not part of the record, and is not open to exception or demur- rer, or motion in arrest of judgment. Comm. v. Davis, (11 P.) 28 432; Comm. v. Farrell, 105 189. 12. In general, the party furnishing a bill of particulars, in a civil or criminal cause, is con- fined to it, unless he obtains leave to amend it, as if the particulars were essential allegations in a pleading. Babcock v. Thompson, (3 P.) 20 446; Comm. v. Snelling, (15 P.) 32 321; Comm. «. Giles, (1 G.) 67 466. 13. And the rule holds on appeal in a civil cause; but he may give evidence as to any mat- ter so specified, although he gave none in the court below. Smith v. Kirby, (10 Met.) 51 150; Kennedy v. Gooding, (7 G ) 73 417. BILL OF PARTICULARS— BOARD OF HEALTH. 153 14. But the Commonwealth is not limited to its bill of particulars in the court below, upon a subsequent trial of a criminal cause on appeal. Comm. v. Parrell, 105 189. 15. Reasonable certainty and particularity only are required in a bill of particulars, in a civil or criminal cause. Comm. v. Davis, (11 P.) 28 432; Jones v. Ilsley, (1 A.) 83 273; Hayes t>. Wilson, 105 21. 16. It is amendable like a declaration; and if insufficient, or not supported by the evidence, a nonsuit may be directed. Babcock v. Thompson, (3 P.) 20 446. 17. After a cause has been submitted to the jury, the defendant cannot object, for the first time, that an item of the plaintiff's claim is not in his bill of particulars. Turner ». Twing, (9 C.) 63 512; Bos- ton & W. R. R. ». Dana, (1 G.) 67 83. 18. Nor can a party, who did not object for the want of a bill of particulars in the court below, raise the objection in the supreme judi- cial court upon exceptions. Tebbetts v. Pickering, (5 C.) 59 83. 19. Nor can an objection, for the want of a bill of particulars under the common counts, be taken, after the trial has begun. Preston v. Neale, (12 G.) 78 222. 20. "Where the declaration contains the money counts, and also a count on a promissory note, the note is evidence under the money counts, without being specified in the bill of particulars. Tebbetts 11. Pickering, (5 C.) 59 83. 21. So a count for money had and received, which refers to another count, setting forth the particulars of the claim, is not demurrable on the ground that no bill of particulars was filed with it. Dorr v. McKinney, (9 A.) 91 359. See, also, Parker ». Sanborn, (7 G.) 73 191. 22. Upon a question of variance, the distinc- tion between a bill of particulars and a special declaration, is that a variance from the former is not fatal, unless the defendant has been misled, whereas the defendant may avail him- self of a variance from the latter, whether he was misled or not. Clark v. Munsell, (6 Met.) 47 373. Bill of peace. [See Quieting Title, II.] Bill of sale. [See Chattel Mortgage, I; Sale, I; ,11.] name the title to the church property stands, for the acts of a parish priest, in behalf of his church, see Leahey v. Williams, 141 345. Billiards. Bird. [See Amusement, II, (3).] [See Animal and Bird,] Bishop. [See. also, Religious Association.] For various rulings, respecting the liability of abishop of the Roman Catholic church, in whose Vol. 1—20 Blackmail. [See Extortion, II.] Blasphemy. [See, also, Libel, II.] 1. The statute against bjashemy is not op- posed to the sixteenth article of the declaration of rights, against restraining the liberty of the press. Comm. v. Kneeland, (20 P.; 37 206. 2. ' ' Wilfully " imports a design to calumniate and disparage the Supreme Being, and destroy the veneration due to Him. The word " deny" need not be used in committing the offence; any word of equivalent meaning, used with the same purpose and design, has that legal effect. Comm. «. Kneeland, (20 P.) 37 206. 3. For the statement of various other princi- ples relating to the statute, and various rulings tpuching the application thereof, see Comm. v. Kneeland, (20 P.) 37 206, including the dissenting opinion of Mok- ton, J. Blood. [See Alien and Citizen; Bastard, I; Descent and Distribution I; II.] Board of health. [See, also, Burial, II ; Nuisance, III, (3).] 1. A person, aggrieved by an order of the State board of health, adjudging his business to be a nuisance, made under St. 1871, Ch. 167, § 2; P. S., Ch. 80, § 93, has a right of appeal to a jury. Sawyer ». State Board of Health, 125 182; Comm. v. Young, 135 526. 2. Under G. S., Ch. 26, § 5; P. S., Ch. 80, § 18, a jury, upon appeal from an order of the State board of health, adjudging a business to be a nuisance, and prohibiting the continuation of it, may allow it to be continued under certain restrictions; and a verdict of the jury, referring to an appended sheet, containing the conditions, both being signed by the foreman, is sufficient. Sawyer i>. State Board of Health, 125 182. 3. Under the statute relating to cemeteries, etc., a city board of health may make a regula- tion, restricting any person from removing a dead body for burial, except upon compliance with certain prescribed conditions; and may re- voke an undertaker's Mcense for failure to com- ply with the conditions, without notice to him. Comm. v Goodrich, (13 A.) 95 546. 4 An order of a city board of health, which undertakes to direct the manner in which an owner or occupant of land shall remove a nuis- ance, or is made without a previous notice and hearing, is void Watuppa Res. Co. v. Mackenzie, 132 71. 154 BOAED OF HEALTH— BOAEDING-HOUSE. 5. The statutes, relating to prohibiting by the board of health, trades, etc., which are nuis- ances, are constitutional. Taunton v. Taylor, 116 254. 6. As to sufficiency of the organization of a city board of health, under those statutes, see Taunton v. Taylor, 116 254. 7. As to the construction of St. 1872, Ch. 299, and its effect upon the provisions of the G. S., relating to the power of the board of health to direct rilling low lands in the cities of Cam- bridge and Sornerville, see Cambridge «. Munroe, 126 496. 8. Keeping swine" and feeding them upon offal, are an employment, within G. S., Ch. 26, § 52; P. 8., Ch. 80, § 84; and the board of health of a town have power to prohibit it un- der that provision, and no other. But such a prohibition is ineffectual, unless the party has been served with a copy of the order, and has had an opportunity to appeal to a jury. Comm. v. Young, 135 526. See, also, Taunton v. Taylor, 116 254. 9. Under that section, the board of health may, by general order, forbid the exercise of an offensive employment in the town, without first giving notice to those engaged in it. Belcher v. Farrar, (8 A.) 90 325. 10. The order need not be served by an officer. Winthrop v. Farrar, (11 A.) 93 398. 11. The order is sufficient, if it clearly shows that, in the opinion of the board, the trade is a nuisance, although it does not use that word. Taunton v. Taylor, 116 254. 12. A bill in equity may be brought in the name of the city or the town, by the board of health, to restrain the exercise of an offensive trade or employment, which the board has pro- hibited. Taunton v. Taylor, 116 254. See, also, Winthrop v. Farrar, (11 A.) 93 398. 13. And the verdict of a jury, upon an ap- peal, which has not been acted upon, whereby the order is modified, will not prevent the granting of relief under such a bill. Taunton v. Taylor, 116 254. 14. But where the partv, through mistake, or by contrivance of the board, has lost his right of appeal to a jury, the court, in its dis- cretion, will refuse to enforce the order. Winthrop ». Farrar, (11 A.) 93 398. 15. The order can be revised only in the mode pointed out by statute, and the defendant, in such an equitable suit, cannot show that his trade is not a nuisance. Taunton v. Taylor, 116 254. 16. Under G. S., Ch. 26, § 8; P. S., Ch. 80, § 21, an order for the removal of a nuisance is valid, without previous notice to the party in- terested; if it prescribes a mode of removal, the party is not restricted to that mode; nor is the board restricted to that mode, if he neglects to remove it. Salem «. Eastern R. R., 98 431. 17. Sufficiency of the form of such an order, Salem v. Eastern R. R., 98 431. 18. An action to recover the expenses of a removal by the board of health, under such an order, is properly brought by the board in the name of the city or town; and, if the order was made without notice, none of the prelimi- nary findings are conclusive upon the party. Salem «. Eastern R. R., 98 431. 19. Under St. 1868, Ch. 160; P. 8., Ch. 80, § 28, et seq., the board of health may act by a committee in abating a nuisance. Grace v. Newton B'd of Health, 135 490. 20. Under that statute, if the board has given notice of a hearing, it need not give a new notice to make an assessment; otherwise it must give notice of the assessment. Grace d. Newton B'd of Health, 135 490. 21. It is no ground for a certiorari to quash the assessment, that the expenses were not assessed proportionately upon all persons bene- fited, or that improper items were included. Grace v. Newton B'd of Health, 135 490. • 22. As to the sufficiency of the proceedings in various particulars, see Grace v. Newton B'd of Health, 135 490. 23. Under P. S., Ch. 80, §§ 40, 41, 75, the board of health has no authority to take pos- session of a dwelling house, without the owner's assent, and to his exclusion, and use it as a hospital for a person found therein, infected with a contagious disease; and the town is not liable for such use and occupation. Spring v. Hyde Park, 137 554. See, also, Brown v. Murdock, 140 314. 24. As to the measure of damages, in an action against a member of the board of health for such an illegal act, see Brown v. Murdock, 140 314. 25. Nor has the board of health, or the city, power to erect a dam upon a person's land, without his assent, for the purpose of abating a nuisance upon adjoining land. Cavanagh v. Boston, 139 426. 26. The recitals in a warrant by a judge for a jury under P. S., Ch. 80, § 88, that the court was not in session in the county, and that the applicant's failure to appeal was caused by mis- take, are not conclusive. Greene v. Milford, 139 69. 27. As to the effect of changing the date of the warrant by the judge, see Greene «. Milford, 139 69. Boarding-house. 1. The Ken given by G. S., Ch. 151, § 29; P. S., Ch. 192, § 31, attaches as and when the board is furnished, and prevails over a sale or re- moval, made before the board bill becomes payable by the contract. Bayley v. Merrill, (10 A.) 92 360; Smith v. Colcord, 115 70. 2. Semble, that it terminates, upon a sale, only when the next payment becomes due, after notice to the boarding-house keeper. Bayley v. Merrill, (10 A.) 92 360; Smith v. Colcord, 115 70. 3. There is no lien, under that statute, upon property of a man, brought to the boarding- BOAT— BOND, I, (1), (2). 155 house by his wife and children, whom he has driven from his house by cruelty and neglect. Mills e. Shirley, 110 158. [For rulings in cases where the question arose whether the party was an inn-keeper or a boarding- house keeper, see Inn.] ■ Boat. See Carrier • Shipping. Body-stealing. See Burial, III. Bond. I. Nature and general Requisites. (1.) Execution. (2.) Validity. II. Bond of a public Officer. (1.) General rules. (2.) Sheriff or constable. (3.) Tax collector. (4.) Other public officers. III. Other special Bonds. (1.) Bond to indemnify. (2.) Bond for faithful performance by agent or corporate officer. (3.) Bottomry bond. (4.) Negotiable coupon bond. IV. Action. [As to bonds in legal proceedings, sea the titles of the different proceedings, viz. : Appeal ; Attach- ment; Bail; Bankruptcy; Bastardy; Costs; Error: Execution; Injunction; Insolvency; Poor Debtor; Bemoval of Action; Replevin; Scire Facias, &c. As to the execution of a bond in blank, and filling up the same, or other alteration after execution, see Alteration oj? Instrument. As to probate bonds, see Executor and Adminis- trator, II, (3) ; Guardian, V ; Trustee, I, (3). As to a bank officer's bond, see Bank, IV, (5). As to bonds to convey real property, see Vendor and Vendee. Generally, see Contract; Guaranty; Indemnity ; Surety.] I. Nature and general Requisites. (1.) Execution. 1. A bond takes effect from its delivery, not from its written date; and the time of delivery may be proved, whether before or after the written date, or if there is no written date. Thomas v. Bleakie, 136 568. 2 If delivered without authority from the obligee, it does not take effect. Fay v. Richardson, (7 P.) 24 91. As to sufficiency of constructive delivery, see Bird v. Washburn, (10 P.) 27 223; Chase v. Breed, (5 G.) 71 440. 3. Where a bond is left by the surety with the principal to be delivered, if he delivers it under such circumstances that he was not authorized so to do, the surety is liable, unless the obligee had notice, or the facts fairly put him upon in- quiry. Thomas®. Bleakie, 136 568. 4. A surety in a bond is not liable for acts occurring before its delivery, although after its date. Thomas ». Bleakie, 136 568. 5. A person executing a bond is liable there- upon, although his name is not in the body of it. Smith v. Crooker, 5 538; Ahrend v. Odiorne, 125 50. 6. And where two persons execute a bond, prepared to be executed by three, they are liable, unless it was executed upon the condition or understanding that it should be executed by the three. Cutters. Whittemore, 10 442; Adams v. Bean, 12 137; Danker «. Atwood, 119 146. 7. And where, after three have executed it, it is altered by consent of two, and again sealed and delivered by them, it binds them. Warring v. Williams, (8 P.) 25 322. 8. But where a bond purports upon its face to be executed by one as principal, and another as surety, it does not take effect, as against the latter, until it is executed by the former; aliter, if it does not so purport upon its face. Bean v. Parker, 17 591; Wood v. Washburn, (2 P.) 19 24; Pratt v. Gibbs, (9 C.) 63 82; Rundell v. LaFleur, (6 A.) 88 480; Thomas e. Bleakie, 136 568. [See, also, Sampsons. Barnard, 98 359, Attach- ment, arts. 212, 213.] 9. It is not necessary, however, upon the trial, to prove execution by the principal, if his name and seal appear thereon. Valentine v. Wheeler, 116 478. 10. And where one named in the bond as surety, signs in the place for an attesting wit- ness, and one not named signs opposite a seal, it may be shown by oral evidence that each signed, in the wrong place by mistake. Richardson©. Boynton, (12 A.) 94 138. 11. A person named in a bond as administra- tor, who signs without an addition, is liable as administrator. Dickey ». Sleeper, 13 244. 12. A bond must be accepted by the obligee, before it can take effect. A corporation may accept a bond by a formal vote of its directors, or by acts of its officers having that effect. Dedham Bk. c. Chickering, (3 P.) 20 335; Amherst Bk. v. Root, (2 Met.) 43 522: Lexington & W. C. R. R. v. Elwell, (8 A.) 90 371. (2.) Validity. 13. A bond from a husband to his wife's father for her maintenance, after voluntary separation, is valid. And at common law an obligor is estopped from setting up want of con- sideration to a bond. Page v. Trufant, 2 159. 14. A paper purporting to be a bond, but with the penal sum left blank, is not a bond; and a replevin bond, which does not fix the penalty in money, is not sufficient. Case b. Pettee, (5 G.) 71 27. 15. A several bond may be valid as to some of the obligors, and void as to the others. Dickey v. Sleeper, 13 244. 156 BOND, I, (2); II, (1), (2). 16. A bond to the trustees of an unincor- porated association, to pay a certain sum month- ly, as long as the association exists, is not void for uncertainty. Merrill v. Mclntire, (13 G.) 79 157. 17. Nor is a bond to indemnify for becoming bail in "the U. S. court for the state of New Hampshire," as the district of that name is co- terminous with the state. Connors. Harlan, 130 265. 18. A bond, varying in some respects from the requirements of a statute, is good at com- mon law, if the parties to the instrument are correct, and if the bond is in substance one which the obligor had a right to make, and con- tains no conditions contrary to those prescribed by law; as where a bond is in a less penalty, or with fewer sureties, than prescribed; or the sure- ties are not residents of the proper county; or it runs to the selectmen, instead of the town, or the like. Holbrooke Klenert, 113 268. For illustrations, see Morse ». Hodsdon, 5 314; Freeman*. Davis. 7 200; Claps. Cofran, 7 98; Burroughs v. Lowder, 8 373; Thomas v. White, 12 367; Simonds «. Parker, (1 Met.) 42 508; Glezen v. Eood, (2 Met.) 43 490; Wolcott v. Mead, (12 Met.) 53 516; Sweetser v. Hay, (2 G.) 68 49; Claflin v. Thayer, (13 G.) 79 459; Grocers' Bk v. Kingman, (16 G.) 82 473; Brighton Bk. v. Smith, (5 A.) 87 413; Conant «. Newton, 126 105. 19. But where a bond is exacted from one by a public officer, against the obligor's rights, and in the absence of any lawful authority to require it, the act of taking it is illegal, and the bond is void. Churchill v. Perkins, 5 541; Boston v. Capen,(7C.) 61 116; Comm. v. Kelly, (9G) 75 259. 20. But where a debtor, taken in execution, procures his discharge by giving security to the officer, and afterwards, before the return day, the officer re-arrests him, his bond for the prison limits is valid, since he voluntarily submitted to the remedy to which the creditor was entitled, notwithstanding the misconduct of the officer. Brown ». Getchell, 1 1 11. 21. Semite, that if anything is added to a sta- tute bond, beyond that which is required by the statute, the addition is immaterial, and no re- covery can be had for breach thereof. Hall ». Cushing, (9 P.) 26 395. 22. A bond, contrary to the statute, as by a deputy sheriff to pay the sheriff a larger pro- portion of the fees than the statute prescribes, is void. Farrar v. Barton, 5 395; Mattoon «. Kidd, 7 33. II. Bond of a public Officer. [As to bonds by officers of corporations, see, post, III. (2)."] (1.) General rules. 23. An action upon a bond, given by a pub- lic officer, cannot be maintained by a private person in the name of the Commonwealth, un- less it is authorized by statute, or the proper officer of the Commonwealth. Comm. v. Hatch, 5 191. 24. Where a statute requires the approval by a court, of an official bond, which is afterwards found on file, and there is no record that it was determined to be insufficient, in which case only the statute requires a record, it is deemed to have been approved. Apthorp «. North, 14 167. 25. And such a bond is in force from the time when it was handed into court, although it never reached the treasurer, who is the statutory depository. Apthorp ii. North, 14 167. (2.) Sheriff or constable. [As to the bond of indemnity, etc., by a deputy sheriff to the sheriff, seepost. III (1). For other rul- ings, see Office and Officer, I, (5).] 26. Where judgment for the penalty had been rendered, under the former statute, upon a sheriff's bond to the treasurer, and further dam- ages accrued by new breaches, a scire facias might have been issued until the penalty was exhausted. Skinner v. Phillips, 4 68. 27. To enable a party to maintain an action on a sheriff's bond, where the sheriff is dead, and the estate is represented insolvent, a de- cree must be procured from the probate court. Todd «. Bradford, 17 567. 28. Sureties in a constable's bond are liable for his acts under color of office. Lowell i>. Parker, (10 Met.) 51 309. 29. They are liable for his refusal to return attached property, after judgment in the owner's favor. Dennie v. Smith, 129 143. 30. Or for the attachment by the constable of goods not belonging to the defendant in the writ. Greenfield v. Wilson, (13 G.) 79 384; Tracy v. Goodwin, (5 A.) 87 409. 81. Or for seizure of like goods under an execution. Turner v. Sisson, 137 191. 32. But not for his failure to pay the plain- tiff money, intrusted to him for that purpose by the defendant, after service completed. Boston v. Moore, (3 A.) 85 126. 33. An unsatisfied judgment against the con- stable, for the conversion of property wrong- fully attached, does not bar the prosecution of his bond. Greenfield v. Wilson, (13 G.) 79 384. 34. Nor does the pendency of an action upon his recognizance, under the poor debtor's act, and a default thereupon. Tracy v. Preble, 117 4. 35. A judgment against a constable, for wrongful attachment of goods, is, in the ab- sence of fraud or collusion, conclusive against his sureties, in an action on the bond, that he took the goods wrongfully, and as to the dam- ages and costs. Lowell v. Parker, (10 Met.) 51 309; Tracy v. Goodwin, (5 A.) 87 409. 36. But the sureties may impeach the judg- ment by showing want of jurisdiction, by rea- son of failure to' to make lawful service of the writ. ' Fall River v. Riley, 140 488. BOND, II, (2), (3), (4). 1ST 37. And evidence is not admissible in de- fence of such an action, that the goods were mortgaged, and that the constable delivered them to the mortgagee on demand; but, after judgment for tlie penalty, such evidence is ad- missible upon the question of the damages, for which execution shall issue. Lowell v. Parker, (10 Met.) 51 309. 38. A judgment against him for conversion of property attached by him, and not returned to the owner after judgment in the latter's favor, likewise concludes the sureties. Dennie v. Smith, 129 143. 39. But a judgment for him in a former ac- tion for the same breach is not a bar, if the record shows that it might have been rendered for want of a demand. Tracy v. Mer ill, 103 280. 40. In an action on a constable's bond, it is immaterial if the declaration does not describe him in his official capacity. Dennie v. Smith, 129 143. 41. An action does not lie upon a constable's bond until a judgment against him and demand of payment; but if he has removed from the Commonwealth, a demand is not necessary. Tracy i>. Merrill, 103 280; Fall River v. Riley, 138 336. 42. For rulings upon statutes, relating to the official bonds of constables of the city of Boston, see Tracy «. Goodwin, \5 A.) 87 409; Calder «. Haynes, (7 A.) 89 387; Tracy v. Merrill, 103 280; Tracy B.Warren, 104 376. (3.) Tax collector. 43. A tax collector takes the risk of the safe keeping of the money collected by him, and an action lies on his official bond, for money lost by theft or otherwise. Hancock v. Hazzard, (12 C.) 66 112. 44. Such an action lies for taxes lost through his remissness, although uncollected taxes have been committed to his successor. Colerain «. Bell, (9 Met.) 50 499. 45. "Where, however, he is removed within a year after the taxes were committed to him, the sureties may show, to reduce damages, that certain taxes could not be collected. Colerain v. Bell, (9 Met.) 50 499. 48. Where he has held office two years, and has made up the arrears of the first year, with moneys collected in the second, the sureties for the second year cannot deduct such moneys from his default. Colerain v. Bell, (9 Met.) SO 499. 47. And where no such appropriation is expressly made, sums, received generally from the collector, will be applied to the extinguish- ment of the earliest charges against him, and the sureties for the last year are liable for the final balance. Sandwich v. Fish, (2 G.) 68 298. 48. Where a second parish is formed in a town, which has not been organized as a parish, and the town continues to manage the affairs of the first parish, the collector and his sureties are liable for money received upon a tax, assessed for the payment of the minister of the first parish. Ashby®. Wellington, (8 P.) 25 524. 49. An action on a collector's bond may be brought, by authority of the treasurer, in the name of the town, without a formal vote by the town. Blackstone v. Taft, (4 G.) 70 250. 50. One who has acted as collector, and his sureties, are estopped, in an action upon his bond, for taxes collected, to question the legality of his appointment, or the sufficiency of his warrant. Great Barrington v. Austin, (8 G ) 74 444; Wendell v. Fleming, (8 G.) 74 613. 51. A collector's bond, executed to a town, and delivered to the treasurer, may be enforced without proof of approval by the selectmen. Wendell v. Fleming, (8 G.) 74 613. 52. A bond given to the selectmen, instead of the town, is valid at common law; and they may sue it for the benefit of the town. But their successors cannot, although it names the successors Stevens v. Hay, (6 C.) 60 229; Sweet- ser v. Hay, (2 G.) 68 49. 53. Where a collector's bond runs to the treas- urer, if the treasurer, upon being offered the tax money, agrees with the collector that he may keep it for a time, and pay his own debts with it, the sureties are discharged pro tanto. Johnson v. Mills, (10 C.) 64 503. 54. In an action upon a collector's bond, the defendants cannot object to irregularities in the tax list, the warrant, or the proceedings upon which the warrant was issued. Sandwich v. Fish, (2 G.) 68 29%. 55. But the collector is not bound to collect taxes, under a warrant illegal upon its face. Cheshire v. Howland, (13 G.) 79 321. 56. Payments, once allowed to the collector by the town in account, cannot be again allowed in an action on his bond; and sums paid by him, upon negotiable orders, drawn by the selectmen upon him, cannot be allowed Cheshire v. Howland, (13 G.) 79 321. 57. In such an'action, interest is allowed from the time of a demand on the collector. Cheshire v. Howland, (13 G.) 79 321. 58. The sureties in a bond, given to the col- lector of taxes under the U. S. revenue laws by his deputy, are liable for sums collected by him for taxes ascertained and assessed, lists of which have been prepared by the assessor, al- though they have not been committed to the collector; and where he has collected such taxes, and also taxes upon a list so committed, and then resigns his office, and executes to the col- lector a conveyance of land, upon an agreement that the proceeds should be used to pay his lia- bilities, including a sum advanced by the col- lector for the purpose; the proceeds operate as a payment pro tanto upon all the taxes, and the sureties are liable for the entire balance. Cogswell v. Eames, (14 A.) 96 48. (4.) Other public officers. 59. Where the water registrar of a city, who holds office during the pleasure of the water board, continues to perform the duties of his office for several years,, without a new election, during which time the city revises its ordinances, reenactingthose'relatingto the water board, and repealing the former ordinances on the subject, 158 BOND, II, (4); III, (1). with a proviso that the repeal shall not affect the tenure of any office, or any forfeiture or penalty already incurred; the sureties on his official bond are liable for a default occurring after the revision. Cambridge v. Fifield, 126 438. 60. But where a county treasurer holds office by law for one year, and until another "is chosen in his room," his official bond continues in force for only one year. Bigelow «. Bridge, 8 275. 61. The sureties in the bond of a town treas- urer, executed after the beginning of his official term, are liable for money received by him, during any part of his term, including the part preceding the execution of the bond. Hatch v. Attleborough, 97 533. 62. The sureties in the bond of a town treas- urer, who has held office for several terms of one year each, are not liable for defaults occur- ring in a preceding term: but if the treasurer, at the beginning of the year for which the bond is given, reports a balance due from him, and subsequently charges himself with money collected, and credits himself with moneys paid during the year, the credits may be applied towards the payment of the balance due at the beginning of the year, although the treasurer was then a defaulter for that sum. Rochester v. Randall, 105 295; Egre- mont v. Benjamin, 125 15. 63. The sureties in such a bond are liable, without a formal demand from the treasurer, where the accounts have been settled, and a balance agreed upon, and the treasurer has turned over to his successor his official books and accounts, and such money as remains in his hands. Egremont v. Benjamin, 125 15. III. Othek special Bonds. (1.) Bond to indemnify. [See, also, Contract, arts. 843, 344.] 64. Bonds to indemnify the obligee for any default in the performance of the duties of a public or private trust or office, or in the doing or abstaining from doing any other acts, are of necessity often prepared in advance; and their recitals, as well as their obligations, must relate to the time when they become effectual. Thomas v. Bleakie, 136 568. 65. A bond to a sheriff, to indemnify him against a default of a deputy sheriff, which was dated, signed by the surety, and handed to the deputy, several days before the expiration of the term which he was serving, but delivered to the sheriff on. the first day of a netv term, is not, as matter of law, confined to a default oc- curring during the second term; the question of intention is one of fact. Thomas v. Bleakie, 136 568. 66. But where the words of the condition fairly imply, that the intention of the bond is to secure the sheriff against future defaults, the surety is not liable for those which have already occurred. Thomas v. Blake, 126 320. 67. The surety in such a bond is liable for a collection and embezzlement by the deputy after the expiration of the sheriff's term of office' upon a precept which came to his hands while the sheriff was in office. Lamed v. Allen, 13 295. 68. It is_ a breach of such a bond, for the deputy to release attached goods, where the plaintiff has taken out execution within thirty days, although he is not notified thereof. Cooper v. Mowry, 16 5. 69. In the absence of a statute, requiring a deputy to pay any portion of his fees to the sheriff, it is not a breach of a bond for faithful performance of official duties, and indemnity against malfeasance, etc., for the deputy to omit to pay over a proportiou of the fees. Austin i>. French, (7 Met.) 48 126. 70. But where the bond provides that the deputy shall keep a register of writs, fees, etc., in such manner as the sheriff directs, a direc- tion of the sheriff is not a condition precedent, and it is a breach for the deputy to omit to keep a full and accurate register. Austin v. French, (7 Met.) 48 126. 71. The condition of a bond to pay the obligee's debt to another on demand, and to in- demnify him against the same, is broken by failure to pay it on demand by the obligee, although the obligor has given a guaranty to the creditor, and the latter has made no demand. Shattuck v. Adams, 136 34. See, also, Stewart v. Clark, (11 Met.} 52 384. 72. A bond to quiet all hostile claims against land, etc., so that the obligee "shall not be" " molested or disturbed in the possession," is not broken by an outstanding incumbrance, which does not disturb the obligee's possession. Boynton v. Dalrymple, (16 P.) 33 147. See, also, Gerrish v. Smyth, (10 A.) 92 303. 73. A bond to indemnify against the estab- lishment of a hostile title is not broken by an award of arbitrators, made without notice. Brattle Sq. Ch. v. Bullard, (2 Met.) 43 363. 74. A bond to pajr the obligee's debt, within such time as the obligor chooses, and to indem- nify him against damages and costs, is broken by recovery of a judgment against the obligee, although notice of the suit was not given to the obligor. Fish «. Dana, 10 46. 75. A bond to indemnify against the joint note of the obligor and obligee is broken, by the payment of the note by the obligee, with money advanced him by a surety thereupon. "Warring v. Williams, (8 P.) 25 322. 76. A bond to indemnify against any indebt- edness of the obligor to the obligee includes a debt of the obligor's firm. Singer Mfg. Co. v. Allen, 122 467. 77. Where a bond is conditioned to indem- nify the obligee against debts of or liabilities for_ the obligor's firm, the purchase by the obligor of goods, and the acceptance of the draft of the firm therefor, without funds in the obligee's hands, suffice to prove the signature of the firm, and that the acceptance was given under the bond. Valentine f>. Wheeler, 116 478. _ 78. A bond of indemnity against outstanding titles, given by a third person to the grantee in a warranty deed of land, does not cover the BOND, III, (1), (2), (3). 159 expenses of the grantee in defending an action upon a groundless claim. Bancroft v. Abbott, (3 A.) 85 524. 79. Notwithstanding the complicated nature of the transactions, to which a bond of indem- nity relates, an action at law lies thereupon. Richardson v. Hadley, 117 379. 80. A bond to indemnify the plaintiffs for a proportion of the liabilities to be assumed by them, as surety of H for the faithful perform- ance of his duties as a United States paymaster, is valid, although the bond, executed by the plaintiffs and H, contains also a clause, requir- ing H to account for the moneys received by him as paymaster, and to refund any public moneys unaccounted for. Curtis «. Banker, 136 355. 81. And where, after the death of H. the United States, without a demand upon his rep- resentatives, sued the plaintiffs upon the bond, and after an unsuccessful application to the court of claims for relief, they consented to a default, and judgment was taken against them, upon which each party sued out a writ of error, and the judgment was affirmed; it was held, that although no notice of the suit was given to the defendant, he was liable for his propor- tion of the judgment paid by the plaintiffs, and interest and costs, if the plaintiffs had acted in good faith, and with due diligence. Ourtis v. Banker, 136 355. 82. "Where a bond is given to an officer, to indemnify him for all suits, etc., by reason of levying an execution, and the owner of the property levied upon recovers a judgment against the officer, and execution is issued thereupon, the obligor is liable in an action upon the bond for the penalty, although the obligee has not paid the execution. Cook v. Merrifield, 139 139. See, also, White ». French, (15 G.) 81 339. (2.) Bond for faithful performance by agent or corporate officer. [As to bonds of this character, given to hanks for faithful performance, by cashiers, tellers, etc., see Bank, IV, (5).] 83. Although the statute requires that the trustees of a savings bank shall be chosen an- nually, and shall appoint a treasurer, the office of treasurer is not an annual one, and his bond for faithful performance is a continuing bond. Comm. «. Reading Sav. Bk., 129 73. 84. Where the agent of a corporation has given a continuing bond for faithful perform- ance, the sjreties are not discharged because the company continues the agency after a de- fault, without notifying the sureties. Watertown F. Ins. Co. v. Simmons, 131 65. 85. Where the tenure of the office or em- employment is for a fixed period of time, sure- ties for faithful performance are not liable for defaults, occurring under a new appointment after the bond is given, unless a contrary intent appears in the bond. Richardson S. Fundi). Dean, 130 242- citing Bigelown. Bridge, 8 275; Chelms- ford Co. v. Demarest, (7G.) 73 1; Mid- dlesex M. Co. v. Lawrence, (1 A.) 83 339; Lexington & W. C. R. R. «. Elwell, (8 A.) 90 371. 86. But where it is for an indefinite time, the sureties are liable as long as the principal con- tinuously holds the office, unless the bond lim- its the period for which they are liable. Richardson S. Fund ». Dean, 130 242; citing Worcester Bk. ■». Reed, 9 267; Dedham Bk. «. Chickering. (3 P.) 20 335; Amherst Bk. i>. Root, (2 Met.) 43 522; Cambridge ». Fifield, 126 428; Comm. ». Reading Sav. Bk. 129 73. 87. So where the treasurer of a corporation is chosen for a term of three years, and gives a bond for faithful performance, it is not a con- tinuing b nd. Richardson S. Fund v. Dean, 130 242. 88. A surety in an agent's bond is not holden, where a new and different agency is afterwards profited Boston Hat M. Co. v. Messinger, (2 P.) 19 223. 89. But an increase of the capital stock of the corporation obligee, and an increase _ of the agent's duties, by reason of its connection with other companies, and an increase of his salary in consequence, do not discharge the surety. Easton R. R. v. Loring, 138 381. 90. The surety is not liable, where the agent subsequently resigns, and his resignaiion is ac- cepted, but his employment is cont.nued as before. Amicable Ins. Co. v. Sedgwick, HO 163. 91 . A corporation is not estopped from main- taining an action upon its treasurer's bond, by accepting the report of an auditing committee, which has approved his accounts, nor by making a report to the legislature, founded thereupon. Lexington & W. C. R. R. t. Elwell, (8 A.) 90 371. 92. Where the treasurer of a corporation ap- propriates to his own use sums received, from the same source, before and after his bond has expired, and afterwards enters upon his books a sum, as received from that source, which was not in fact then received, and there is nothing to show when it was in fact received, it is proper to apply half of it to the time covered by the bond. Lexington * W. C. R. R. t>. Elwell, (8 A.) 90 371. 93. The treasurer's indorsement of notes, is sufficient evidence of his receipt of money, in an action on his bond. Lexington & W. C. R. R. «. Elwell, (8 A.) 90 371. 94. Proof of the refusal of the defendant, to assist a person employed by the directors to collect debts, by furnishing necessary bills and papers; of the finding of a book of records on the defendant's table, with some entries torn out; of taking part, with others, in procuring a dissolution of the corprration; and of exposing property to be attached by a creditor, does not suffice to show a breach of the bond of the treasurer of a corporation for faithful perform- ance. The Literati v. Heald, 141 326. (3.) Bottomry bond. 95. Where a bottomry bond is given to secure debts, for which simple contract securities have 160 BOND, III, (3), (4); IV. been previously given, the debts are merged in the bond, and the securities cannot be enforced. Bray v. Bates, (9 Met.) 50 237. 96. A bottomry bond, by the terms of which the obligee will lose all his money, if the ship is lost within three years, is not usurious, al- though interest at the rate of twelve per centum per annum is reserved, and other benefits are stipulated for. Thorndike v. Stone, (11 P.) 28 183. 97. An attachment of the ship by the obligee, upon a debt of the obligor, having no connec- tion with the bottomry bond, whereby the obligor is prevented from employing the ship so as to earn the money to be paid by the terms of the bottomry bond, does not excuse the obligor from performance of the condition. Thorndike v. Stone, (11 P.) 28 183. 98. Where money was loaned upon a bot- tomry bond, which wab conditioned to be void, if the ship was captured by enemies of the U. S., and she was in fact captured by a friendly nation, and condemned as a lawful prize; but afterwards the condemnation was reversed, and the owner compensated under a treaty, no ac- tion lies upon the bond; but the lender may maintain assumpsit for money had and received. Appleton ii, Crowninsnield, 3 443. 99. "Where P, the owner of a vessel, chartered her to G, and the master, in a foreign port, gave a bottomry bond to B, and before the arrival of the ship home, G delivered to P his two nego- tiable notes, and a signed to P certain choses in action, the whole being less than the amount of the bond, upon P's agreement to satisfy the bond therewith, by means whereof, and of cer- tain moneys furnished by him, P procured the bond to be assigned to his agent for his use, it is a good defence to an action upon the bond in the name of the obligee, that it is brought by and for the benefit of P. Bonaf£e«.Woodberry, (12 P.) 29 456. (4.) Negotiable coupon bond, [See, also, Bill of Exchange and Promissort Note, II, (l).i 100. In this country it is well settled, that bonds, issued by a corporation, payable to or- der or bearer, are negotiable instruments; and that the coupons attached thereto, and payable in like manner, may be severed from the bonds, before the coupons became payable, and sepa- rately negotiated and sued; that the statute of limitations runs against such an action upon coupons so severed as soon as they are payable, and that they are not affected by the cancella- tion or payment of the bond to which they were originally attached. So, substantially, as to United States bonds and coupons. Dexter v. Phillips, 121 178; per Gray, Ch. J. , p. 183. See, also, Chapin «. Vermont & M. Railroad, (8 G.) 74 575; Spooner ». Holmes, 102 503; Haven v. Grand Junction Railroad, 109 88. 101. Such negotiable bonds, belonging to an innocent third person, fraudulently pledged for a loan by the custodian thereof, to one who takes them bona fide, and in the usual course of business, may be held by the pledgee. Bowditch v. New England L. Ins. Co., 141 1. IV. Action. 102. Under G. S., Ch. 53, § 6; P. S., Ch. 77, § 4, the holder of a railroad company's bond, with a blank left for the payee's name, may sue thereupon in his own name. Chapin v. Vermont & Mass. R. R., (8 G ) 74 575. 103. But in a case not provided for by that statute, the action must be in the name of the obligee, although the bond expresses that the payment is to be made to him for the use of an- other, and in the name of all the obligees, al- though one only is interested. Bird ». Washburn, (10 P.) 27 223; Sanders v. Filley, (12 P.) 29 554; Grout v. Harrington, (19 P.) 36 403; North- ampton «. Elwell, (4 G.) 70 81. 104. The administrator of the obligee may maintain an action upon a bond to pay the decedent's debt to a third person, for the benefit of the latter, although he has lost his remedy against the estate. Waters v. Eddy, (8 P.) 25 399. 105. In an action on a bond for a deed, a general plea of performance, not averring specially the giving of the deed, is bad. Tinney ». Ashley, (15 P.) 32 546. 106. In an action on a bond to perform an award, it is a good defence that the award is void, although the court has accepted it, and rendered judgment thereon. Lafiin ». Field, (6 Met.) 47 287. 107. Performance of the condition, before action brought, accepted by the obligee, saves the forfeiture, although not on the day, or otherwise strictly according to the terms. Bond v. Cutler, 10 419; Gage v. Gan- nett, 11 217; Hogins t. Arnold, (15 P.) 32 259. 108. Where a bond is conditioned to pay a sum awarded by appraisers, within a specified time, a refusal by the obligor to appoint an ap- praiser is a breach. Eaton v. Strong, 7 312. 109. A bond given by a minister and sureties, conditioned to supply the desk of a parish, remains in force, although an ecclesiastical council has recommended the dissolution of the connection, the parish not having accepted the recommendation. Bacon ». Lane, (21 P.) 38 130. 110. A bond to render an account, according to an award of arbitrators, is broken by adding a new item, although it is for a matter occurring since the award. Stratton v. Mason, (15 P.) 32 508. 111. The act of one of two joint obligors, in consenting to a disposition by the obligee, for his benefit, of goods, which they, were to de- liver him for a certain sum at a fixed price, is the act of both, and the act of the obligee is not a prevention of performance by him, but a payment pro tanto of the amount secured. Wildes v. Wade, (8 C.) 62 579. 112. A bond, conditioned to convey an ex- clusive right and art, not patented, is broken, if the obligor fails to communicate the entire process to the obligee!, or communicates it t» another. Vickery v. Welch, (19 P.) 36 523. BOND, IV— BOSTON. 161 113. Where covenants are secured by a pen- alty, the obligee has an election to sue ior the penalty, or upon the covenants. Perkins v. Lyman, 1 1 76. 114. In an action upon a bond, if the plaintiff recovers, judgment must go lor the penalty; and if the case comes up on exceptions at the trial, or if the superior court reports the case after ordering judgment for the penalty, and without ascertaining damages, the only question, within the jurisdiction of the supreme judicial court, is whether there has been any breach of the bond. Valentine ». Wheeler, 116 478; Shat- tuck v. Adams, 136 34. 115. But if judgment is rendered for less than the penalty, the defendant cannot main- tain an exception. Huntress i>. Burbank, 111 213. 116. Damages maybe recovered, even against the surety, to the amount of interest upon the penalty, from the time of the breach or the commencement o* the action, in addition to the penalty. Harris v. Clap, 1 308; Pitts i>. Tilden, 2 118; Warner v. Thurlo, 15 154; White o. French, (15 G.) 81 339; Brighton Bk. v. Smith, (12 A.) 94 243. 117. Where ten sureties, in an official bond for $20,000, bind themselves in $2,000 each, severally and not jointly, one surety may be made liable for the entire $2,000, although the defalcation is less than $20,000. Brighton Bk. v. Smith, (12 A.) 94 243. 118. Where the condition has not been strictly fulfilled, but the result to the obligee is sub- stantially the same, so that he is not in effect damnified, judgment will go for the penalty, with nominal damages. Pollard a. Porter, (3 G.) 69 312. 119. So if, after suit brought on the bond, the obligor performs the condition, the plaintiff is entitled to nominal damages. Shattuck v. Adams, 136 34 120. Where judgment for the penalty is taken, the plaintiff cannot have execution for the full amount, because the defendant has not proved that less is equitably due; the plaintiff must show how much is due. Austin v. Moore, (7 Met ) 48 116. 121. Where judgment for the penalty is ren- dered, to stand for future breaches, damages are to be assessed to the time of the judgment Waldo v. Pobes, 1 10. 122. For the purpose of determining the amount for which execution may issue, the court may appoint an assessor. Fisk v. Gray, 100 191. ■i? 3 j ^° delect or admission in the pleadings will deprive either party of the right to an equitable adjustment of all claims secured by tnebond, to determine the sum for which exe- cution must issue. Hatch «. Attleborough, 97 533. 124. Thus the d f ndant may prove pay- ments, although they are not set up in the answer. Merrill ». Mclntire, (13 G.) 79 157. _ 125. In an action upon a judgment, rendered in another state, for the penalty of a bond, to Vol. 1—21 stand as security for past and future breaches, the plaintiff can recover the penalty, but only for past breaches, for which execution has been there awarded. His remedy for future breaches is by scire facias. Battey v. Holbrook, (11 G.) 77 212. 126. Upon scire facias a new execution will not be ordered, if the plaintiff has not been substantially damnified, beyond the sum col- lected on the former execution. Wallis v. Carpenter, 110 347. 127. Whatever may te the form of the con- dition, if it is substantially to indemnify, exe- cution will be ordered only for the sum equit- ably due the plaintiff. Valentine v. Wheeler, 122 566. 128. For various rulings as to the sums all lowed for damages, after judgment for the pen- alty, under the peculiar circumstances of the case, in an action by a city against the surety of the contractors for peforming the work on a public improvement, see iNewton «. Devlin, 134 490. Books. fAs evidence, see Evidence; I, (8); VIII, (4).] Boston. 1. The town of Boston became a city, imme diately after adopting St. 1821, Ch. 110, pursu ant to § 31. Comm. v. James, (1 P.) 18 375. _ 2. St. 1817, Ch. 50, providing that prosecu- tions on the bylaws of Boston may be in the nume of I he Commonwealth, was not repealed by the act incorporating Boston as a city. Comm. v. Worcester, (3 P.) 20 462. 3. Police regulations, to direct the use of private property, so as to prevent its proving pernicious to the citizens at large, are not void, although they may in some measure interfere with private rights, without providing compen- sation. Baker v. Boston, (12 P.) 29 184. 4. The board of aldermen of Boston, in lay- ing out public ways, and the officers of the city, in constructing them, act in the exercise of the right of eminent domain, delegated to them by the Commonwealth; and their powers, in the exercise thereof, cannot be abridged by prior covenants or acts of the city, as a munici- pal corporation. Brimmer «. Boston, 102 19. 5. As to the construction and effect of St. 1803, Ch. Ill, for laying out streets in Boston, see the following cases: Comm. v. Boston, (16 P.) 33 442- Wright v. Tukey, i3 C.) 57 290; Bow- man v. Boston, (5 C.) 59 1; Fernald v. Boston, (12 C.) 66 574; Henshaw v. Hunting, (1 G.) 67 203; Glover v. Bos- ton, (14 G.) 80 282. [Generally, for rulings affecting Boston in a mu- nicipal capacity, including cases under statutes relat- ing to public improvements, see Town and City. As to the municipal court of Boston, and other loca. courts, see Appeal, II, (2); Police Court, etc., II. As to raising the grade of land to abate nuisances in Boston, see Nuisance, III, (3). For other matters re- lating to Boston, see the titles of the different sub- jects, viz.: Auditor op a ccounts ; Bond, II; Fan- euil Hall Market ; Ferry; etc.] 162 BOUNDARY LINE, I, (1). Boston and Maine Railroad. [See, also, Corporation, X.] 1. As to increase of capital, see Atty.-Gen'l v. Boston & Maine R. R., 109 99; as to lense of road, see Peters v. Bost n & Maine R. R., 114 127. Boston and Roxbury mill corpora- tion. [See Mill; also, Tremont Imp. Co. v. Boston Water Power Co , (lu A.) 9a 261.1 Bottomry bond. [See Bond, III, (3).} Boundary line. I. General Rules. (1.) Description; general principles of inter- pretation. (2.) Parties' or privies' acts, admissions, or ac- quiescence. (3.) Other evidence. II. Particular Boundaries, and Location of Boundaries. (1.) Ways. (2.) Monuments (3.) Seashore and fiats. (4.) Fresh water streams and ponds. [See, also, Condition, I ; Deed, II, (5) : Easement, II; Estoppel, I; 11,(2).] I. General Rules. (1.) Description; general principles of Interpretation. 1. It is difficult to say that there is more than one rule of construction which has not its ex- ceptions, and that rule is, taking the whole in strument together, what does it mean ? Per Thomas, J., in Ide v. Pearce, (9 G.) 75 350. 2. Where a deed refers to a map or plan, the courses, distances, and other particulars in the latter, are deemed to be incorporated in the deed Lunt i). Holland; 14 149. Davis v Rainsford, 17 207. Blaneyu. Rice. (20 P * 37 62; Magoun v. Lapham, (21 P.) 38 135, Morgan v. Moore. (3 6| 69 319 Murdock v. Chapman. (9 G ) 75 156 Ide ». Pearce, (9 G ) 75 350. Kohihepp v. West Roxbury, 120 596 3. Where a deed describes the grantors and grantees as heirs at law of a certain person, and one ot the grantors was tenant in common with the deceased of part of land, his title as heii only passes. Ingalis v. Newhall, 139 268 4. The words, "about," or "more or less," added to the statement of the quantity of land or of the length of the boundary line, are to be rejected as surplusage, if there is nothing in the deed itself, or the antecedent attending circum- stances, to qualify the description. Blaney v. Rice, (20 P.1 37 62; Wheeler v. Randall, (6 Met.) 47 529. See, also, Flagg v. Mason, 141 64. 5. But where the description, by courses or otherwise, takes in more or less than the quan- tity of land stated, the description governs. Powell v. Clark, 5 355; Whiting v, Dewey, (15 P.) 32 428; Clark v. Mun- yan, (22 P.) 39 410. 6. And a deed which describes, but does not give the length of, one boundary lfnc, conveys all the land on that line which the grantor can convey, consistently with the rest of the descrip- tion. Dalltt. Brown, (5 C.) 59 289. 7. For additional cases, relating to the state- ment of the quantity of land conveyed, or of the length of a course, in an imperfect or un- certain description, see Stearns v. Rice, (14 P.) 31 411; Slater i>. Rawson, (1 Met.) 42 450; Bloch v. Pfaff, 101 535; Needham v. Judson, 101 155. 8. Where a parcel of land is divided by deed among three tenants in common, by lines run- ning east and west, and the east side is longer than the west, and the points of division on the east side are located, but those on the west side are not, the latter will be divided in the same proportion as the former. Long v. Merrill, (24 P.) 41 157. 9. A description of land in a deed, by metes and bounds, prevails over a different descrip- tion in another deed therein referred to. Melvin v. Locks, etc., Propr's, (5 Met.) 46 15; Dana «. Middlesex Bk., (10 Met.) 51 250. 10. But a reference to another deed will help out an imperfect or erroneous description. Weller v. Barber, HO 44. See, also, Ide «. Pearce, (9 G.) 75 350. 11. For additional cases, where an imperfect or uncertain description was cured or not cured, by reference to another deed, or to lands owned by another person, s;e Crosby v. Parker, 4 110; Bott v. Bur- nell, 11 163; Winn ». Cabot. (18 P.) 35 553; Foss v. Crisp, (20 P.) 37 121, Sparhawk®. Bagg, (16 G.) 82 583; Frost ii Angier, 127 212. 12. If iand is described as " bounded north of A's land," the wnrd "of' wih be construed to be "by," if necessary to make the description coherent . but ii there is another course, which will not take in all the *and thus bounded, the latter parcel is excluded Hannum 1>. Kingsley. 107 355. 13 Where the true description depends, not only upon the language used in the deed, but upon the application of that language to other evidence, s me of which is contradictory, me question goes to the jury Bardenc Felch. 109 154 14. Where a course designates three points, which are not on a straight line, it must be run by two straight lines, taking in the three points. Hovey v. Sawy.r, (5 A.) 87 554. BOUNDAEY LINE, I, (1), (2). 163 15. The same principle governs, where one straight line would include land evidently not intended to be conveyed. Bond 11. Tay, (8 A.) 90 212. 16. But a course running from one point to another is a straight line, ii it can he so run in accordance with the description; and the estab- lishment of monuments by tne parties will not suffice to show that it is intended to be crooked. Allen «. Kingsbury, (16 P.) 33 235; Jenks v. Morgan, (6 a.) 72 448; Hen- shaw v. Mullens, 121 143. 17. A reservation, in a deed, of the wood on the premises, " south of the meadow," includes the wood on all of the land lying fuither south than the meadow, although not directly south of it. Cronin v. Kichardson, (8 A.) 90 423. 18. Lands, referred to as bounding lands con- veyed, cannot be deemed to be included, nnless the description would otherwise be unintelli- gible. Bond n. Fay, (8 A.) 90 212; Wilson e. Underbill, 108 360, Charlestown n. Tufts, 111 348. 19. Where land is conveyed by metes and bounds, which are correct to include lands be- longing to the grantor, the addition, " meaning to convey all the land as now fenced," will not restrict the conveyance in one direction, where a fence runs across the land, at some distance from the boundary given. Stowell v. Buswell, 135 340. See, also, Aldrich «. Aldr.ch, 135 153. 20. And where a deed, after describing the land by bounds and exact measurements, which excluded the mansion house, added, " or how- ever otherwise the same is bounded, being the mansion and land thereunto belonging," this does not carry the mansion house and adjacent land, not included in the bounds. Tyler «. Hammond, (11 P.) 28 193. 21. The omission of one boundary line in the description will be supplied, if there is enough, in other parts of the deed, to show the extent and limits of the land intended to be conveyed. Woodward v. Nims, 130 70. See, also, Barden v. Felch, 109 154. 22. For additional rulings upon imperfect, uncertain, or impossible metes and bounds, as described in a deed, which cannot be ascer- tained by monuments, etc , see Worthington 1> Hylyer, 4 196- Thatcher v Howland, (2 Met.) 43 41; Williston n Morse, (10 Met.) 51 17; Bosworth v. Sturtevant, (2 C.) 56 392; Sawyer «. Kendall, (IOC.) 64 241 ; Parks «. Loomis, (6 G.) 72 467; Stevenson v. Erskine, 99 367; Garvin v. Dean, 115 577; Ingalls ii. Newhall, 139 268; Old South Soc. v. Wainwright, 141 443. (2.) Parties or privies' acts, admissions, or acquiescence. [See, also, Evidence, VI, (3).] 23. It is a question for the jury, whether an ancient line has been located and marked by adjoining proprietors, and recognized and acted upon for many years, as the true line; and if so, it fixes the boundary, although it varies from the course described in the deeds. Kellogg ». Smith, (7C.) 61 375; Hath- away v. Evans, 108 267;' Coyle ». Cleary, 116 208. 24. But if such proprietors, intending to es- tablish the true boundary, agree orally upon an erroneous line, and hold possession accordingly, the mistake does not estop either, unless the sta- tute of limitations has run, or unless one, know- ing the error, has suffered the other ignorantly to incur expense. 'lolmanu. Sparhawk, (5 Met.) 46 469; Brewer v. Boston & W. R. R., (5 Met.) 46 478; Thayer v. Bacon, (3 A.) 85 163; Liverpool Wharf v. Prescott, (7 A.) 89 494; Miles v. Barrows, 122 579. 25. If a deed refers to a monument not then existing, and the parties aftei wards erect the monument, intending to conform it to the deed, the monument will govern, although not en- tirely coinciding with the line. Makepeace i>. Bancroft, 12 469; Davis v. Rainsford, 17 207; Frost v. Spaulding, (19 P.) 36 445; Blaney ». Rice, (20 P.) 37 62; Kellogg v. Smith, (7 C.) 61 375. 26. A boundary line, settled by arbitrators under a submission, or by referees under a rule of court, is conclusive and binding. Goodridge v Dustin, (5 Met.) 46 363; Searle v. Abbe, (13 G.) 79 409; Byam fl.Robbins, (6 A.) 88 63; Davis «. Henry, 121 150; overruling, on this point, Whit- ney v. Holmes, 15 152. 27. Where the deed is of doubtful construc- tion as to the boundaries, the construction given by the parties themselves, as shown by their acts and admissions, is deemed to be the true one, unless the contrary is shown. Clark v. Munyan, (22 P.) 39 410; Stone v. Clark, (1 Met.) 42 378; Old Colony R. R. n. Evans, (6 G.) 72 25; Stevenson n. Erskine, 99 367; Lovejoy t\ Lovett, 124 270. 28. And the admission of a former owner in possession, as to where the line ran, is competent, although the land was then subject to a mort- gage, under a foreclosure of which the demand- ant derives title. Flagg ii. Mason, 141 64. 29. For rulings as to the sufficiency of parti- cular acts, to show a practical construction, or a mutual agreement and occupation, which will control the language, see the cases above cited, and Liverpool Wharf n. Prescott, (7 A.) 89 494: Miles v. Barrows, 122 579; HaU «. Eaton, 139 217; Dodd v. Witt. 139 63. 30. A resolution of the legislature, fixing a certain monument as the one intended for a boundary, estops the Commonwealth from denying it. Comm. v. Pejepscut Prop'rs, 10 155. 31. Declarations of deceased persons, as to boundaries or monuments, are admissible in evidence, if made as follows, but not otherwise: (1) The person must have been in possession, under claim of ownership. (2) The declaration must have been made, while in the act of point- ing out the boundaries. Daggett ii. Shaw, (5 Met.) 46 223; Bartlett v. Emerson, (7 G.) 73 171; Davis n. Sherman, (7 G.) 73 291; Flagg 164 BOUNDARY LINE, I, (2), (3); II, (1). e. Mason, (S G.) 74 556; Currier v. Gale, (14 G.) 80 504; Wood «. Foster, (8 A.) 90 24; Long v. Colton, 116 414. 32. Possession under a bond for a deed suf- Niles v. Patch, (13 G.) 79 254. 33. A tradition among persons residing on the land is not sufficient. Hall v. Mayo, 97 416. 34. Declarations of one who owned land in trust, and an ancient plan, coming from his predecessor and delivered by him as correct, are admissible against one claiming under him. Chapman v. Edmands, (3 A ) 85 512. 35. Where adjoining proprietors agree upon a dividing line, the presumption is that it is the true one. Sparhawk v. Bullard, (1 Met.) 42 95. 36. This rule extends to a recent perambula- tion of a line between two adjoining towns, by the selectmen; but the evidence is not conclu- sive. Freeman v. Kenney, (15 P.) 32 44; Middleborough 1>. Taunton, (2 C.) 56 406; Putnam v. Bond, 100 58. 37. And where two tenants in common agreed to divide the tract, and made a line of division, and occupied up to it, and two years afterwards exchanged deeds, each bounding the land by that conveyed to the other, without any specifi- cation of the boundary line, these facts show that the boundary line intended was the one thus agreed upon, and oral evidence of a mis- take in the survey is inadmissible. Crafts v. Hibbard, (4 Met.) 45 438. 38. Uncertainty and ambiguity of description are cured by a practical construction, which the parties have given to the description, by their acts and treatment of the property, for the pur- pose of showing what the true line was. Cambridge v. Lexington, (17 P.) 34 222; Stone v. Clark, (1 Met.) 42 378; Mann ». Dunham, (5 G.) 71 511; Ste- venson v. Erskine, 99 367; Loveioy v. Lovett, 124 270; Drury v. Midland R. R., 127 571. 39. Where the description uses the word "thence" after each course, that implies a con- tinuity of the boundary lines; and if such continuity is not reconcilable with the courses and distances given, and perishable monuments are mentioned, and a line has been adopted by the parties to the deed, that raises a presumption that monuments, which have perished, previ- ously existed upon the line so adopted. Flagg v. Mason, 141 64. (3.) Other evidence. 40. Recitals in deeds more than thirty years old, under which neither party claims, are evi- dence, upon questions of boundary, to prove the position of a line, from the location of which the bound in dispute can be determined. Hathaway v. Evans, 113 264. See, also, Sparhawk v. Bullard, (1 Met.) 42 95; Morris v. Callanan, 105 129; Drury v. Midland R R., 127 571. 41: But a recital in a more recent deed is not evidence, although both parties are dead Pettingill ?>. Porter, (8 A.) 90 1 42. For the purpose of ascertaining the inten- tion of the parties, where uncertainty or am- biguity arises in locating land by the description, in the deed, proof of extrinsic facts is admissi- ble; but where the terms of the deed, as appliei to the land, create no ambiguity, evidence of intention is excluded. Waterman v. Johnson, (13 P.) 30 261 - Cook v. Babcock, (7 C.) 61 526; Sar- gent v. Adams, (3 G.) 69 72; Putnum ■o. Bond, lOO 58; Chester Emery Co. ». Lucas, 112 424; Hoar ». Goulding, 116 132; Dunham v. Gannett, 124 151. 43. But ancient plotttngs for plans, and field notes, made by a deceased surveyor, and not proved to have been made by authority of the grantor i f either party, are not admissible. Boston Water Power Co. v. Hanlon, 132 483. 44. An ancient deed is admissible also, where the position of a line referred to cannot now be established. Liverpool Wharf v. Prescott, (4 A.) 86 23. 45. But evidence that a part not in question of a town boundary, as originally surveyed, was incorrect, is not evidence that the part in ques- tion is incorrect. Hathaway v. Evans, 113 264. 46. A division among parties interested, made by warrant of the probate court, is evidence, not only of what directly relates to the lots of the pa: ties, but of the boundary line of other lots, from which those of the lots in question can be ascertained. Hathaway v. Evans, 113 264. 47. Where a question arises upon an ancient grant of the Commonwealth, evidence is admis- sible, in order to show the correct boundaries, of long continued cccupation; of like grants of contiguous lands and occupation thereunder; and of subsequent conveyances by the grantees, referring to monuments not existing at the time of the original grant. Owen v. Bartholomew, (9 P.) 26 520. 48. So the usual practice of surveyor-*, em- ployed by the proprietors of an adjacent town, to overrun the exact measures, and the uniform practice to give large measure in grants made at the time, are admissible to show that the true boundaries exceeded the distances given. Owen v. Bartholomew, (9 P.) 26 520. II. Pabticulab Botwdabees, and Location OF BOTJNDABEES. (1.) Ways. 49. Where a deed bounds land by or upon * public or private way, the presumption is, if nothing else appears, that the centre of the way is the boundary intended. Deanfl. Lowell, 135 55. See, also, Hew- hall ». Ireson, (8 C.) 62 595; Philips v. Bowers, (7 G.) 73 21 , Fisher v. Smith. (9 G.) 75 441; Hollenbeck v. Rowley, (8 A.) 90 473; Boston t>. Richardson, (13 A.) 95 146; White v. Godfrey, 97 472; Stark v. Coffin, 105 328: Lewis v. Beattie, 105 410; Motley v. Sargent 119 231; Leonard v. Adams, 11» 366; Walker «. Boynton, 120 349; Peek*). Denniston, 121 17; O'Connellfl, BOUNDAKY LINE, II, (1), (2). 165 Bryant, 121 557; Hamlin v. Pairpoint M. Co., 141 51. 50. The rule is the same, where, a line bound- ing land consists of a wall which runs to a road, and ends on the line of the road. Dean v. Lowell, 135 55. 51. So a lease of a " store," includes the land to the middle of a private way in the rear, the fee of which is in the lessor. Hooper «. Parnsworth, 128 487. 52. The rule applies, although the way is so ancient that its origin is unknown. Rice v, Worcester, (11 G.) 77 283. 53. This is, however, merely a rule of con- struction in each particular case, depending upon the intent of the parties, as expressed in the descriptive parts of the deed, explained and illustrated by all the other parts, and the locali- ties and subject matter. "Webber v. Eastern R. R., (2 Met.) 43 147; Codman «. Evans, (1 A.) 83 443. 54. Accordingly a corner lot, laid out in 1723, by proprietors of a town, as " left for the min- ister," and described as bounded " against" one of the streets, and "butting" upon the other, where subsequent user shows that such was the intention, is bounded by the external lines of the streets. Phelps v. Webster, 134 17. 55. And where land is described as bounded on a road, but the deed sets forth metes and bounds which plainly exclude the road, no part of the road passes. Sibley*. Holden,(10P.) 27 249; Tyler «. Hammond, (11 P.) 28 193; Parker v. Framingham, (8 Met.) 49 260; Mor- gan v. Moore, (3 G.) 69 319; Mann v. Dunham, (5 G.) 71 511; Smith v. Slo- comb, (9 G.) 75 36; Brainard v. Boston & N. Y. C. R. R., (12 G.) 78 407; Winslow i>. King, (14 G.) 80 321; Cod- man v. Evans, (1 A.) 83 443. See, however, Newhall v. Ireson, (8 C.) 62 595. 56. But bounding land upon a private way does not give the grantee any right to a subse- quent extension thereof, beyond his own land. Langmaid v. Higgins, 129 353. 57. Land, bounded upon a way not yet opened, but planned, draws with it the title to the centre of the way, when it is constructed; and the grantee takes, subject to the owner's plan. Greenhood*. Carroll, 114 588; Crafts v. Judson, 119 521; Leonard v. Quin- lan, 121 579. 58. Where land is bounded upon a way, but a line, intended to be intersecting, does not reach the way, it is presumed to be extended to the way. Ganley «. Looney, 100 359. 59. Where a deed described the land as "commencing" upon a way, thence west ten rods, etc., it was held chat the presumption, that the side lines extended ten rods from the side of the way, was controlled by the fact that the parties established monuments at ten rods from the centre of the way, and occupied ac- cordingly. Dodd®. Witt, 139 63. 60. Where the land was described as bounded north 56 feet by a street, east 200 feet ' ' by other land of said grantors on a passage way," south 56 feet by certain land, and west 200 feet by another street, and the grantors owned no part of the streets, and no passage way in fact ex- isted, it was held that no part of the passage way was on the land conveyed. Treat v. Joslyn, 139 94. _ 61. Where land is bounded on one side by a river, and on another by a street, which runs from another street to the river, and the length of the latter boundary line is several hundred feet more than the entire length of the street, that boundary line is extended as a prolongation of the line of the bounding street. Hamlin v. Pairpoint M. Co., 141 51. [As to the easement created by bounding land upon a way not yet opened, see, also, Covbnast, II; III; Easement, II, (3).] (2,) Monuments. [See, also, ante, I, (1); I, (2).l 62. Where land is described in a deed by courses and distances, and at the same time by monuments, which are certain, or capable of being made certain, independently of measure- ments, the monuments control. Howe v. Bass, 2 380; Pernam v. Wead, 6 181; Folger v. Mitchell, (3 P.) 20 396; Brimmer v. Long Wharf, (5 P.) 22 131; Dawes v. Prentice, (16 P.) 33 435; Bosworth v. Sturtevant, (2 C.) 56 392; Curtis v. Francis, (9 C.) 63 427; Smith v Slocomb, (9 G.) 75 36; George s.Wood, (7 A.) 89 14; Morse v. Rogers, 118 572; Galvin e. Collins, 128 525. 63. The rule is subject to an exception, where it clearly appears that no mistake could have been made in the courses and distances, and an adherence to it would b£ inconsistent with the remainder of the instrument. Hall v. Eaton, 139 217. See, also, Davis v. Rainsford, 17 207; Murdock t>. Chapman, (9 G.) 75 156. 64. A street or a highway is a sufficient monu- ment for the purpose of the rule. Howe v. Bass, 2 380. 65. So is another's land, or his boundary line, or a corner thereof. Pernam v. Wead, 6 131; George v. Wood, (7 A.) 89 14. 66. And where another's land is thus taken as a monument, it means the true line of his land, not that actually occupied by him, if it varies from the true line. Cornell v. Jackson, (9 Met.) 50 150: Cleaveland». Flagg. (4C.) 58 76; Well- fleet v. Truro, (9 A.) 91 137. 67. So where a boundary line is described as running a certain distance to an ascertained line, though without a visible boundary, the latter line is a monument which will control the measurement. Flagg ii. Thurston, (13 P.) 30 145. 68. If a line is described as running such a distance to a stake and stones, and at the time of the inquiry no such monument enists, nor can its location when the instrument was ex- ecuted be determined, the line is fixed by meas- urement, if no other intent appears Smith v. Smith, lib 302; Wilson «. Hildreth, 118 578 166 BOUNDARY LINE, II, (2), (3). 69. Upon the question, where was the monu- ment when the deed was given, a surveyor may- testify that, in his opinion, a mark on a tree is such as a surveyor would make, and a pile of stones is an ancient monument. Davis 0. Mason, (4 P.) 21 156; Knox v. Olark, 123 216. 70. And where there are two monuments, each of which is consistent with some parts of the description, and inconsistent with other parts, oral testimony is admissible to determine which monument was meant. Thornell v. Brockton, 141 151. 71. A harbor is amonument; and so aie flats. Brimmer v. Long Wharf, (5 P.) 22 131; Mayhewe. Norton, (17 P.) 34 357; Curtis v. Francis, (9 C.) 63 427. 72. Where a line is described as running " to the shop of A," oral evidence is admissible to show that, at the date of the instrument, there was an outside platform on one side of the shop, built at the same time and resting on the same foundation; and if so, the line runs to the cor- ner of the platform. Dunham 0. Gannett, 124 151; Dun- nam v. Gannett, 126 151. 73. Where land is conveyed, bounded on a house as a monument, the land passes to the edge of the eaves only; and where the house itself is granted, the extreme parts of the house are the bounds and limits, and the land covered them by passes. Millett v. Fowle, (8 0.) 62 150; Car- brey ». Willis, (7 A.) 89 364; Boston 0. Richardson, (13 A.) 95 146; Sherman v. Williams, 113 481. 74. And where a house is erected on a man's line, with eaves overhanging the line, that is an adverse occupation of the land under the eaves. Thacker v. Guardenier, (7 Met.) 48 484. [See Adverse Possession, art. 31.] 75. But where the boundary is simply by an object, natural or artificial, the name of which is not usually employed as describing a title in fee, and does not in its description include the earth, as far down as the grantor owns, and yet has width, as a wall, a stake and stones, etc., the centre of the object is the boundary. Boston v. Richardson, (13 A.) 95 146; Devine v. Wyman, 131 73. 76. The reservation of the right to draw water from a well, which is in fact without the bound- aries of the land, as given by metes and bounds, does not make the well a monument. Maguire 0. Sturtevant, 140 258. 77 A reference to a mill privilege, as a monu- ment or boundary of land conveyed, does not take the mill privilege out of the operation of the covenants of the deed. Eddy 0. Chace, 140 471- 78. For additional rulings upon boundaries fixed by monuments, under theoeculiar circum- stances of each case, see Parks v. Loomis, (6 G.) 72 467; Morse v. Rogers, 118 572; Wilson v. Hildreth, 118 578; Sanborn 0. Rice, 129 387; Treat 0. Joslyn, 139 94; Barrett 0. Murphy, 140 133. (3.) Seasbore and flats. 79. The general rule is, that a boundary by the tide water passes the fiats; but a boundary by the land under the water excludes them. Comm. v. Roxbury, (9 G.) 75 451, note; Boston 0. Richardson, 105 351; Paine v. Woods, 108 160; Litchfield v. Scituate, 136 39. 80. And where a grant by Plymouth colony to proprietors defined a line as beginning at high water mark, and running three miles inland, it was held, that the starting point fixed the dis- tance inland only. Litchfield 0. Scituate, 136 39. 81. Thus, the grantee takes to low water mark, where the grant bounds the land "by the harbor," "by the sea," "by the creek," or the like. Mayhew v. Norton, (17 P.) 34 357; Green v. Chelsea, (24 P.) 41 71; Jack- son 0. Boston & W. R. R., (1 C.) 55 478; Saltonstall 0. Long Wharf, (7 C.) 61 195; Harlow 0. Fisk, (12 C.) 66 302; Doane 0. Willcutt, (5 G.) 71 328. 82. But he takes only to high water mark, where the grant bounds "by the shore," "by the beach," " by the fiats," or the like. Storer v. Freeman, 6 435; Saltonstall 0. Long Wharf, (7 C.) 61 195; Niless. Patch, (13 G.) 79 254; Litchfield «. Fer- guson, 141 97. 83. For a. special case, where a boundary by a beach, in connection with a ferry, passed the land used with the ferry ways between high and low water mark, see Gerrish 0. Gary, 120 132. 84. But the effect of such general words may T:e controlled by a monument at low water mark, or by other language; thus, where the land is bounded on "a small creek betwixt said land and the land of A," this does not pass the flats. Storer v. Freeman, 6 435; Chapman v. Edmands, (3 A.) 85 512. 85. A grant of land, bounded on a street or way by the water side, does not include flats on the other side, below high water mark. Codmana. Winslow, 10 146. 86. But a grant by a town of land next tide water, on either side of a street, bounded by "the street" and " the bay," passes title to the street, and the flats in front thereof. Boston 0. Richardson, 105 351. 87. A creek, in which the sea ebbs and flows, and from which the tide does not ebb entirely, is a boundary, beyond which the owner of flats cannot recover. Sparhawk v. Bullard, (1 Met.) 42 95; Walker 0. Boston & M. R. R., (3 C.) 57 1; Atty.-Gen'l v. Boston Wharf Co., (13 G.) 78 553. 88. The ebb of the tide, where, from natural causes, it ebbs the lowest, not the average com- mon ebb, is low water mark. Sparhawk v. Ballard, (1 Met.) 42 95. 89. A boundary by a marsh, or by a cliff, ex- cludes the fiats beyond. Rust «. Boston M. Corp'n, (6 P.) 23 158; Barker v. Bates, (13 P.) 30 255. 90. A grant of a piece of land "below high water mark," extends to low water mark. Adams 0. Frothingham, . 3 352. BOUNDARY LINE, II, (4)— BRIDGE. 167 91. But a grant of a "thatch hank," below high water mark, extend only as far towards low water mark as thatch grass grows. Lufkin v. Haskell, (3 P.) 20 356. 92. A deed of a causeway passes the flats under the causeway, and under a bridge form- ing a part thereof. Harlow v. Rogers, (12 C.) 66 291. 93. The ordinance of 1647 limits the right of the owner of the upland' to one hundred rods; but it does not apply to land hounded on a way, hich adjoins the sea shore. Codman v. Winslow, 10 146. See, also, Porter v. Sullivan, (7 G.) 73 441. C4.) Fresh Hater streams and ponds. 94. A grant of land, bounded by a river, above the ebb and flow of the tide, passes the soil to the thread of the stream, whether it is made by the State or by an individual. Kings. King, 74 496; Luntu. Holland, 14 149; Pratt v. Lamson, (2 A.) 84 275; Boston v. Richardson, 105 351. 95. A boundary running " upon " a small brook, carries the land to the thread of the brook, and not the entire bed of the brook. Newhall v. Ireson, (13 G.) 79 262. See, however, Beahan v. Stapleton, (13 G.) 79 427. 96. A description in a deed, beginning "at the end of the dam," on a river, and "running up said river," and ending "to the bank of the river," does not include any part of the stream. Hatch v. Dwight, 17 289. 97- A statute, by which an unnavigable river is named as the boundary line of an incorporated territory, makes the centre of the stream the boundary line, although monuments are des- cribed which stand on the bank. Ex parte Ipswich, (13 P.) 30 431; Cold Spring I. "Works v. Tolland, (9 C.) 63 492. _ 98. Unless the grant otherwise provides, the side lines of a riparian proprietor are to be ex- tended from their termini on the shore, at right angles with the course of the stream, to the centre thereof. Knight ii. "Wilder, (2 C.) 56 199. _ 99. A deed, bounding land on a canal, refer- ring to a plan, by which the boundary appears to be on the side of the canal, and containing stipulations respecting the use and maintenance of the canal, inconsistent with the idea of owner- ship, passes the land only to the wall of the canal. "Whitman v. Boston & M. R. R., (3 A.) 85 133. ' 100. Semite, that by the ordinance of 1647, the land under great ponds, containing more than ten acres, is not the subject of private property, unless by special grant from the legis- lature. Per Gray, J., Paine v. "Woods, 108 160. 101. Where land in a grant is bounded gen- erally by an artificial pond, the title of the gran- tee is carried to the thread of the stream. "Waterman s. Johnson, (13 P.) 30 2"1; Phinney v. Wats, (9 G.) 75 269; Paine v. Woods, 108 160. 102. But a grant bounded by a great pond lake, which is public property, extends only to low water mark. Waterman d. Johnson, (13 P.) 30 261; West Roxbury v. Stoddard, (7 A.) 89 158. 103. Where a natural pond is raised to an artificial height in winter, and in summer is al- lowed to remain at its natural level, a deed, bounding land on the pond, whether executed in summer or in winter, passes land to the low water mark in its natural state. Paine ». Woods, 108 160. 104. But where it is raised more or less, at different times, by means of a dam, existing and in use at the time of the conveyance, there is a latent ambiguity, and oral evidence is admissible to show that the parties agreed upon a line as a boundary. Waterman v. Johnson, (13 P.) 30 261 . [See, .so. Island ; Pond Watercourse, I.] Bounty. [See United States Forces, II.] Bowling. [See Amusement, II, (4).] Brawler. [See Idle, etc., Person.] Breach of promise. [SeePROMISE to marry.] Breaking and entering a building. [See Burglary, etc.] Bribery. 1. A complete delivery of money to a magis- trate, with the corrupt intention of influencing his decision in a matter before him, is within the statute, although it is received in ignorance of what it is, and retained solely for the purposes of public justice. Comm. v. Murray, 135 530. [See, also, Indictment, VIII, (15).] Bridge and bridge company. I. General Rules as to Bridges. II. Bridges as Highways. (1.) How built or established. (2.) Liability of city or town to repair. 168 BRIDGE AND BRIDGE COMPANY, I; II, (1). III. Bridge Companies, and Bridges built by Railroad Corporations. IV. Draw Tender or Superintendent. [See, also. Highway; Eailroad, II, (2); HI, (4); Turnpike.] I. General Bules as to Bridges. 1. Whoever builds a bridge, or lays a turn- pike or other way over a natural stream, is lia- ble for a failure to provide, by culverts or otherwise, for the free current of the water, so that it shall not set back and overflow private lands or public ways, and otherwise to make and keep the bridge in such a condition, that it shall not obstruct the stream. Rowe v. Granite Bridge, (21 P.) 38 344; Blood v. Nashua & L. R. R, (2 G.) 68 137; Mellen v. Western R. R., (4 G.) 70 301; Lawrence v. Fairhaven, (5 G.) 71 110; Perry v. Worcester, (6 G.) 72 544. 2. And a city is liable, where its officers, while repairing a bridge, so narrow the space for the passage of water, as to set it back in the time of usual freshets; but not in case of an ex- traordinary freshet. Perry •». Worcester, (6 G.) 72 544; Sprague 1>. Worcester, (13 G.) 79 193. 3. One who purchases the materials of an abandoned bridge, and suffers them to remain, is liable to the owners of land above, for dam- ages from the setting back of the water. Talbot v. Whipple, (7 G.) 73 122. 4. A bridge or a dam over a navigable river is a nuisance, but an individual cannot sue, un- less he incurs special damages. Borden v. Vincent, (24 P.) 41 301. 5. If a highway is erected over a water-course, either natural or artificial, the latter must be bridged. Perley v. Chandler, 6 454. 6. The legislature has the constitutional power to authorize the erection of a bridge over a navigable stream, although it obstructs, more or less, the passage of vessels. Comm. v. Breed, (4 P.) 21 460; Comm. «. New Bedford Bridge, (2 G.) 68 339; Comm. v. Taunton, (7 A.) 89 309. 7. It is exclusively for the legislature to de- cide, whether a bridge shall be erected over a navigable stream; and county commissioners have no authority to do so under the highway laws, although t::e stream has been partly ob- structed by a bridge built under the authcriiy of the legislature. Wales v. Stetson, 2 143; Comm. v. Coombs, 2 489; Arundel v. McCulloch, 10 70; Comm. v. Charlestown, (1 P.) 18 180; Comm. ». Breed, (4 P.) 21 460; Charlestown v. Middlesex Com'rs, (3 Met.) 44 202. 8. But where dams, erected by authority of the legislature, have separated into basins water which was once part of a navigable river, that water is no longer part of the river, and is not covered by a prohibition tc build a bridge over the river. Boston Water P. Co. v. Boston & W. R. R., (23 P.) 40 360. 9. A prescriptive right to maintain a bridge over a navigable stream is not established, by evidence that it has been maintained for fifty years. Arundel v. McCulloch, 10 70. 10. Where the legislature authorizes a bridge over a navigable river, with a draw of not less than a prescribed width, the proprietor is not bound to make the draw wider, or to make a wharf or pier to the draw, although some ves- sels are obstructed; and a failure to make the draw does not forfeit the franchise. Comm. v. Breed, (4 P.) 21 460. 11. And a subsequent act of the legislature' directing the making of a new draw of greater width, is unconstitutional, as violating a con- tract; but if the draws were required to be "suitable," and the circumstances have so changed, that the original draws are no longer suitable, an indictment will lie for that reason. Comm. «. New Bedford Bridge, (2 6.) 68 339. 12. The Commonwealth has the right to widen a draw in its own bridge over a navi- gable stream, although the widening will tem- porarily interrupt the use, by a street railroad company, to whom it has granted a right to run cars over the bridge. Middlesex R. R. % Wakefield, 103 261. 13. And where a railroad company is a«thor- ized by ts charter to erect bridges over highways, so as not to impede or obstruct the safe use thereof, and an adequate bridge for that pur- pose is built, if it becomes inadequate, through an increased use of the highway, the corpora- tion must alter or reconstruct it. Cooke «. Boston & L. R. R., 133 185. 14. As to the construction of St. 1800, Ch. S3, § 3, relating to the draw in Dighton bridge, see Hood v. Dighton Bridge, 3 263. 15. Under St. 1851, Ch. 338, the inhabitants of Taunton may build a bridge over Taunton Great River witnout a draw. Comm. n. Taunton, (7 A.) 89 309. 16. Under St. 1794, Ch. 30, the county of Hampshire is liable for the damages from a personal injury sustained in consequence of a defect in the bridge over the Westfield river. Lyman c. Hampshire Co., 140 311. See, also, Lyman v. Hampshire Co,, 138 74. II. Bridges as Highways. (1.) How built or established. 17. The legislature has the constitutional power to enact that a particular road or bridge be taken and laid out as a public highway; or that it be taken and laid out as such by county commissioners; and, in either case, to direct that the cost, including compensation to land- owners, or to a corporation owning it, and tak- ing tolls thereupon, and the cost of keeping it in repair, be paid by the Commonwealth,- or by the particular counties, cities, or towns, in which it lies, or by such as shall be determined by commissioners appointed by a court; and after- wards to alter such enactment in the same manner, or provide for reimbursement by one municipality to another. BEIDGE AND BEIDGE COMPANY, II, (1), (2). 169 Norwich v. Hampshire Com'rs, (13 P.) 30 60; Central Bridge v. Lowell, (4 G.) 70 474; Atty.-Gen'l e. Cambridge, (16 G.) 82 247; Hingham&Q. Bridge v. Norfolk, (6 A.) 88 353; Salem Turnpike v. Essex Co., 100 282; Haverhill Bridge v. Essex Com'rs, 103 120; Atty.-Gen'l «. Charlestown, 103 267; Dow «. Wake- field, 103 267; Carter v. Cambridge, etc., Bridge, 104 236; Atty.-Gen'l «. Deerfield Bridge, 105 1; Scituate v. Weymouth, 108 128; Boston®. Middle- sex Com'rs, 111 313; In re Northamp- ton Bridge, 1 16 442; Montague Paper Co. v. Burrows, 121 88; In re Sun- derland Bridge, 122 459; Brayton v. Fall River, 124 95; Agawam*. Hamp- den, 130 528. See, also, Hampshire Co. v. Franklin, 16 76, explained in 130 528. 18. It may also authorize a corporation to build such abridge, for its own and public pur- poses, and direct a certain proportion of the cost to be paid by such counties, cities, or towns. Brayton v. Fall River, 124 95. [See the cases above cited, for various rulings upon provisions of the different statutes enacted for those purposes.] 19. The legislature by St. 1863, Ch. 97, pro vided for the extension of the track of a street railway company over a public bridge, and au- thorized the county commissioners to fix a sum to be paid by the company for tolls, and the compensation of an agent of the Commonwealth for services rendered necessary thereby; and the commissioners were authorized thereby to fix upon a sum, to be paid annually by the com- pany; to cite towns interested to appear before them; and to listen to suggestions from private persons. Salem & S. D. R. R. «. Essex Com'rs, (9 A.) 91 563. 20. Upon taking for a public highway, the franchise of a corporation which has bnilt a bridge under a charter allowing it to take tolls, until it is reimbursed the cost of building, and which has been thus reimbursed, the corporation is not entitled to compensation for the value of the bridge as a structure, but for the loss of its franchise only. Central Bridge v. Lowell, (15 G.) 81 106. 21. An order, laying out the bridge as a pub- lic highway, does not include by implication the toll-house, lying without the limits of the highway. Central Bridge v. Lowell, (15 G.) 81 106. 22. A corporation, owning a toll bridge, may maintain a bill in equity, as for a nuisance, to restrain a city from unlawfully laying out the bridge as a highway. Boston & L. R. R. v. Salem & L. R. R., (2 G.) 68 1; Central Bridge v. Lowell, (15 G.) 81 106. 23. For various rulings upon the statutes re- lating to the Central Bridge corporation, and the act, St. 1853, Ch. 356, authorizing the city of Lowell to take the bridge for a public high- way, see Central Bridge v. Lowell, (4 G.) 70 474; Central Bridge ». Lowell, (15 G.) 81 106. Vol. 1—22 24. If a highway is laid out over a water- course, either natural or artificial, the public cannot close the course, but must take the road over it by means of a bridge. Perley v. Chandler, 6 454; Rowe v. Granite Bridge, (21 P.) 38 344. 25. If the owner of the land, over which a way has been laid out, constructs a water- course across the way, he must bridge it; and if he fails so to do, he may be indicted for main- taining a nuisance, and upon conviction the water-course may be filled up. Perley v. Chandler, 6 454; Woburn v. Henshaw, 101 193. (2.) Liability of city or town to repair. As to the liability of bridge companies, see post, •1 26. Although a corporation is bound to keep a bridge in repair, the town is bound to keep in repair the causeway or approach thereto. Comm. v. Deerfield, (6 A.) 88 449; Swanzey v. Somerset, 132 312. 27. It is no defence to an indictment for fail- ure thus to repair, that a portion of the bridge, with which the causeway connects, has been swept away by a flood; and if the bed of the stream has been widened by the flood, it is the duty of the corporation to extend its bridge to the new bank. Comm. v. Deerfield, (6 A.) 88 449. 28. A statute, requiring two towns to bear equally the expense of maintaining, etc., a bridge, does not apply to a dike constructed in place of the bridge, whereupon the bridge was taken down. Provincetown v. Truro, 135 263. 29. Where a statute authorizes coun'y com- missioners to construct a bridge as a highway between two towns, and to apportion the cost of erecting, maintaining, etc. , the same, an ac- tion lies against one of the towns, for an injury caused by a defect in that portion of the bridge, which it "was bound by the award to keep in repair, although it is outside of the limits of the town. Whitman v. Groveland, 131 553. 30. In an action to recover therefor, evidence is admissible th^t the cause of the falling of a bridge was an accumulation of ice and snow, or the excessive weight of the planking, or the de- fective condition of the iron work, or all com- bined. Whitman c. Groveland, 131 553. 31. But a town is not liable for an injury caused by a defect in a bridge or its approaches, although it is a highway, which a railroad cor- poration is bound by law to keep in repair. Wilson «. Boston, 117 509; Rouse v. Somervffle, 130 361. 32. So where a highway crosses the railroad by a bridge. Sawyer v. Northfield, (7 C.) 61 490. 33. A city, bound by statute to maintain a bridge as a public highway, is not liable for an injury to a vessel, caused by a defect in the con- struction of the draw, or the carelessness of the superintendent of the bridge McDougallc. Salem, 110 21; French v. Boston, 129 592. 34. Where a turnpike road is laid over a town road, which crosses a stream by a bridge, and 170 BKLDGE AND BKIDGE COMPANY, II, (2); ILL the town discontinues the road on each side of the bridge, it is no longer liable to repair the bridge. Webster v. Lamed, (6 Met.) 47 522. 35. A person, who is driving over a bridge, at a rate of speed forbidden by a city ordinance, cannot recover against the city, for an injury sustained by a defect, which the city was bound to repair. Heland v. Lowell, (3 A.) 85 407. 36. A town, in which a bridge has recently been built without authority, is under no obli- gation to repair it Comm. v. Charlestown, (1 P.) 18 180. 37. Where the grantee of an exclusive right to the water in a canal is bound to repair a bridge, carrying a highway over it, he is liable to the town for repairs made by it, and for a judgment recovered against it by reason of a defect in the bridge. Woburnu Henshaw, 101 193; Lowell v. Locks and Canals, 104 18. 38. And where an alteration in the highway, upon a man's land, is made by the county com- missioners, to enable him to dig a canal, and he digs it, and builds a bridge to carry the high- way over it, he is bound to keep the bridge in repair. Lowell v. Locks and Canals, 104 18. 39. At common law, in this Commonwealth, an action does not lie against a town for an in- jury proceeding from a defect in a bridge. Mower v. Leicester, 9 247; Sawyer v. Northfield, (7 C.) 61 490. 40. Where a statute imposes upon certain towns and a railway company, jointly, the ex- penses of keeping a bridge in repair, and gives the care and superintendence of the bridge to one of the towns, the company cannot recover against that town for damages sustained by it, from a defect in the bridge. Maiden & M. R. R. v. Charlestown, (8 AJ 90 245. [As to the notice required by L. 18T7, Ch. 2"4, § 2; P. S., Ch. 52, 6 18, and preceding statutes, to enable a person to maintain an action for injury caused by a detect in a highway, bridge, etc., see Highway, VI, (6).] III. Bridge Companies, and Bridges built by Railroad Corporations. [See, also, Eailroad, II, (2) ; III, (4) ; also, ante, 41. For various rulings, under St. 1784, Clu 53, to Incorporate a company to build a bridge between Boston and Charlestown on the Charles river, and various propositions discussed by the judges, as to the effect of the legislative grant of the franchise; the constitutional power of the legislature to alter it; and the right of the company to maintain a bill to prevent the erec- tion of another bridge, see Charles Itfver Bridge v. Warren Bridge (6 P.) 23 376; (7 P.) 24 344; and 11 Peters, (U. S.) 420. 42. A statute, authorizing a bridge company to build a turnpike leading to their bridge, and to take tolls thereupon, does not create a new franchise, but merely enlarges the former fran- chise. ■ V Comm. v, Hancock Free Bridge, (2 G.) Do 58. 43. Where a bridge company's charter allows three years for its completion, and provides that it shall be built with draws and piers, an indictment lies for taking tolls before building the piers, although the three years have not elapsed Comm. v. Newburyport Bridge, (9 P\ 26 142. ' ; 44. Where a bridge company is bound by its charter to keep a bridge in repair during a cer- tain term, an information lies in favor of the attorney -general for its neglect so to do; and if the bridge has been repaired by the town, after the expiration of the term, the company will be decreed to pay whatever would have been the expense of repairs, at the expiration of the term Atty.-Gen'lc. Deerfield Bridge, 105 1. 45. As to the duty of a company, purchasing a bridge from another company, to make re- pairs which the latter company was bound to make, see Lowell v. Locks and Canals, (7 Met.) 48 1; Comm. v. Hancock Free Bridge. (2 G.) 68 58. 46. As to the sufficiency of a declaration by a private person, against a company bound to keep a bridge in repair, see Williarns v. Hingham Turnpike, (4 P.) 2 1 341 ; Worster v. Canal Bridge, (16 P.) 33 541. 47. Under the turnpike act of 1804, no one, except a person from whom toll was demand- able, could maintain an action against a com- pany for neglect to keep a bridge in repair. Williams ». Hingham. Turnpike, (4 P.) 21 341. 48. A bridge, erected by a railroad company, to carry a highway over its track, is part of the company's structure; and the company is liable to a person injured in consequence of its being left out of repair. Parker v. Boston & M. R. R., (3 C.) 57 107. 49. So a street railway company, bound to repair such portions of all bridges in a city, as are occupied by its tracks, is bound to repair such a portion of a bridge built over a canal by the owner thereof, which, as against the city, he is bound to repair. Locks and Canals v. Lowell Horse R. R., 109 221. 50. Where a bridge company is bound to keep its bridge safe and convenient for travel- lers, the company is not bound to cover it all with snow, because it has so covered a part of it, or to make a snow track over the whole, wide enough for two sleighs. Chase v. Cabot & W. S. Bridge, (6 A.) 88 512. 51. A similar clause in a charter requires the company to light the bridge, when that is neces- sary. Comm. v. Central Bridge, (12 C.) 66 242. 52. And in an action against the company, to recover for an injury in consequence of the lamps not being lighted, the burden of proof is upon the company, to show that it was not neg- ligent in that respect. Worster v. Canal B'-'dge, (16 P.) 33 541. 53. The by-law of a bridge company, im- posing a penalty for riding or driving over the BEIDGE AND BEIDGE COMPANY, III; IV; BUEGLAKY. 171 bridge faster than a walk, does not bind one not having actual notice of it, unless it is posted at each end, as the statute requires. "Worcester v. Essex Merrimac Bridge, (7 G.) 73 457. 54. A bridge company may compound or re- lease tolls, without special legislative authority, although the charter provides that the bridge shall revert to the Commonwealth, when the receipts from tolls amount to a certain sum, or that, when the towns connected by the bridge shall remunerate the company for its expenses, the bridge shall be free. Central Bridge v. Bailey, (8 0.) 62 319; Central Bridge v. Sleeper, (8 C.) 62 334. 55. "Where a bridge, in the tolls of which a bridge company and a turnpike company are equally interested, is taken as a highway, and a net balance of tolls, after deducting all known claims, remains in the turnpike company's hands, the bridge company may recover its share, upon indemnifying the turnpike com- pany against possible outstanding liabilities. Maiden Bridge v. Salem Turnpike, 112 152. 56. "Where a bridge company exempts from tolls all persons, residing on or going to or from certain lands, the burden is upon the company, in an action to recover tolls, to show that the defendant was not exempt. Central Bridge v. Butler, (2 G.) 68 130. 57. A vote of a bridge company, exempting "all the present proprietors of stock" from paying tolls, does not exempt future proprietors of the same stock. Central Bridge v. Abbott, (4 C.) 58 473. See, also, Turnpike.] IV. Draw Tender or Superintendent. [L. 1874, Cn. 373, §§ 108 to 115 ; P. S., Ch. 112, §§ 148 to 155.] 58. If a railroad company has authority to build a draw-bridge with piers over a navigable stream, the superintendent of the draw-bridge has authority over the space between the piers, as far as necessary to regulate the passage of vessels through the draw; and St. 1872, Ch. 221, does not affect his power. Comm. v. Chase, 127 7. 59. The words " at the same time," in § 110 of the act of 1874, refer to the time of the ap- plication of the vessel to pats, not to the time of passing. Comm. v. Chase, 127 7. 60. An allegation in an indictment, under the act of 1874, that a draw-bridge was duly erected and legally maintained by a certain railroad company, is sustained by proof that its charter authorized it to build a bridge across the stream, and that it had built such a bridge, and main- tained it for fifteen or twenty years. Comm. v. Chase, 127 7. 61. The tender of a draw-bridge, appointed by the governor, under St. 1856, Ch. 282, and St. 1859, Ch. 186, is liable in damages to a per- son injured by his failure to have due regard and caution for the public travel. In an action to recover such damages, the opinion of another draw tender, as to the necessity for keeping a gate closed and lanterns lighted, while the draw is open in the night, is inadmissible. Nowell v. Wright, (3 A.) 85 166. Broker. [See Agency, V, (2).] Brothel. [See Bawdy House ; Disorderly House.] Burden of proof. [See Evidence, III.] Burglary; criminal breaking and entering ; burglarious instru- ments. [As to the form and sufficiency of the indictment see Indictment, VIII, (17). For additional and anal- ogous cases, see Larceny.] 1. Breaking and entering a dwelling-house at night, is not burglary at common law, if done with intent to commit a crime less than a felony, such as cutting off an inmate's ear. Comm. v. Newell, 7 245. See, also, Comm. v. Hope, (22 P.) 39 1; Devoe v. Comm., (3 Met.) 44 316. 2. Cutting a netting of twine, or forcing closed blinds, and thereby entering through an open window, is breaking and entering within the statute. Comm. i). Stephenson, (8 P.) 25 354. 3. An entrance through a window or door, left partly open, is not a burglarious entrance, although the window is further pushed up. Comm. v. Strupney, 105 588 4. Removing a loose plank in a partition wall is not a burglarious entrance. Comm. v. Trimmer, 1 476. 5. An out-house, within the curtilage, or ad- joining the dwelling, and occupied as a parcel thereof, although there is no common curtilage, is a part of the dwelling; but not an out-house, which is not a part of the messuage. Devoe «. Comm., (3 Met.) 44 316; Comm. v. Barney, (10 C.) 64 480. 6. An indictment for breaking and entering the dwelling of A, is sustained by proof that A hired it, and was liable for the rent, and that it was occupied by his family, although he had deserted them. Comm. v. Dailey, 110 503. 7. An indictment for burglary or for larceny in a building in B, described as "the shop of A," is supported by proof that A occupied one room only in a building of several rooms in. B. Comm. v. Bowden, (14 G.) SO 103. 8. As to the sufficiency of certain circum- stantial evidence to sustain an indictment for an attempt to break and enter a dwelling, see Comm. v. Shedd, 140 451. 9. Upon the trial of an indictment for bur. glary with intent to commit a rape, the govern- 172 BURGLARY. ment may prove the effect of the force upon the woman; and it is not a ground of exception that the jury were instructed that they must convict or acquit of the entire charge. Comm. ». Doherty, (10 C.) 64 52. 10. Upon a charge of burglarious breaking, entry, and stealing, the actual stealing, if averred and proved, is equivalent to a charge and proof of intent to steal; but the larceny is merged in the burglary, and one sentence for the latter offence is applicable. Comm. 0. Tuck, (20 P.) 37 356; Comm. 0. Hope, (22 P.) 39 1; Devoe v. Comm., (3 Met.) 44 316; Crowley v. Comm., (11 Met.) 52 575; Larned v. Comm., (12 Met.) 53 240. 11. Aliter, when the larceny and burglary are charged in separate counts. Josslyn 0. Comm., (6 Met.) 47 236; Crowley 0. Comm., (11 Met.) 52 575; Kite®. Comm., (11 Met.) 52 581. 12. Upon an indictment for burglary, proof that property, stolen from the house, was soon afterwards found in the prisoner's possession, is admissible, although the indictment contains no allegation that such property was stolen. Lomm. v. McGorty, 114 299. See, also, Comm. v. Millard, 1 6. 13. So upon an indictment for breaking and entering, and stealing certain pieces of money, where money, corresponding with that stolen, but not otherwise identified, is found in the de- fendant's possession, the question of identity may be left with the jury. Comm. v. Chilson, (2 C.) 56 15. 14. Under an indictment, charging the break- ing and entering a building with intent to com- mit larceny, without stating whether in the night or the day, the time is immaterial, but the accused can be convicted of the lesser offence only; and an indictment describing the premi- ses as the dwelling house of A is sustained, for that purpose, by proof that it was an unoccu- pied house owned by A. Comm. 0. Reynolds, 122 454. 15. The words " in the day time," in the stat- ute, are intended not merely to give character to the offence and describe it, but to distinguish it from the higher grade of the same offence, committed in the night time. Comm. v. Squire, (1 Met.) 42 258; Devoe «. Comm., (3 Met.) 44 3l6; Lar- ned v. Comm. , (12 Met.) 53 240; Comm. «. Hamilton, (15 G.) 81 480; Comm. 0. Reynolds, 122 454. See, also, Comm. 0. McLaughlin, (11 C.) 65 598, the de- cision .n which, upon this point, has been superseded by the statute. 16. "Where the indictment describes the build- ing entered, as, "to wit, the office building" of a corporation in S, and the proof is that tho building was used for the general office of the corporation, it is immaterial that there were other buildings in S, owned by the corporation, and used for its subordinate offices. Comm. ». Moriarty, 135 540. 17. But the passenger room of a railroad station, having a separate inclosed room for the sale of tickets, is not an office within the statute. Comm. 0. White, (6 C.) 60 181. 18. Breaking and entering the ticket office in the day time, with intent to steal, but not actu- ally stealing therein, is a misdemeanor. Comm. 0. Carey, (12 C.) 66 246. 19. So an entry at night, in a case where the statute inflicts a penalty only for an entry by day, is a common law misdemeanor. Comm. 0. Carrol, 8 490. 20. As to the distinction between a "store" and a "shop," under the former statute, see Comm. 0. McMonagle, 1 517; Coram. 0. Lindsey, 10 153. 21. Under the present statute, it may be left to the jury to say, whether a dwelling house, in one of the rooms of which the proprietor keeps a bar, and sells beer, cigars, oysters, etc., is a "store," within the ordinary meaning of the word, as used in this Commonwealth. Comm. 0. Whalen, 131 419. 22. "Where the defendant is convicted, upon a count charging a breaking and entry into a shop, with intent to commit larceny, and the actual commission of larceny, a nolle prosequi may be entered as to the breaking and entering, leaving the conviction to stand as respects the larceny. Comm. 0. McMonagle, 1 517; Comm. 0. Tuck, (20 P.) 37 356. 23. It is a sufficient breaking and entering, to satisfy the statute, if the thief, while making a hole in the wall, thrusts his hand or arm through, for the purpose of removing the rub- bish or enlarging the opening. Comm. 0. Glover, 111 395. 24. If there is any breaking and entering at night, the offence is committed, although the entry was not consummated until daylight. Comm. ®. Glover, 111 395. 25. A person may be convicted as an acces- sory to breaking and entering, although he did not know that the crime was to be committed at night. Comm. v. Glover, 111 395. 26. Upon an indictment for breaking and en- tering, and stealing from a building, the amount or value of the articles stolen is immaterial; and it is sufficient if there is a larceny, properly charged, of any of the geods alleged to have been stolen. Comm. 0. Williams, (2 C.) 56 582. 27. Upon an indictment for breaking and en- tering a building, it is not competent for the government to prove that the ward of a key, one of a number of burglarious implements found in the defendant's possession, was made and fitted by him for the purpose of opening another building. Comm. 0. Wilson, (2 C.) 56 590. 28. Upon such an indictment, a number of burglarious implements, found in the defend- ant's possession, may be exhibited to the jury, although some only are adapted to the particu- lar offence. Comm 0. "Williams, (2 C.) 56 582. 29. To support an indictment of one, for having in his possession burglarious imple- ments, it is not necessary that they should have been originally made or intended for an un- lawful use. Comm. 1). Tivnon, (8 G.) 74 375. 30. Upon the trial of such an indictment against two persons, after proof of a common BURGLABY— BURIAL, I; II. 173 design, the declarations of one as to the joint enterprise are admissible in evidence against both. Comm. v. Tivnon, (8 G.) 74 375. 31. Such an indictment is maintainable upon proof of possession, actual or constructive, with guilty intent; but proof of possession by one only, with intent to use them in the joint enter- prise, will not suffice. Comm. v. Tivnon, (8 G.) 74 376. 32. Evidence of the possession of other tools and implements, than those specified in the in- dictment, is admissible. Comm. v. Day, 138 186. 33. Evidence that the defendant had, on pre- vious occasions, used the same or similar imple- ments for burglarious purposes, is also admis- sible. Comm. v. Day, 138 186. 34. An indictment, charging the breaking and entering of the building of A, with intent to commit larceny, and to steal the goods of A therein, charges but one intent, and is not sup- ported by proof of an intent to steal the goods of B, of which A had not title, or actual or con- structive possession. Comm. v. Moore, 130 45. Burial ; cemetery ; violating grave. I. General Rules. II. Town Cemeteries, and other public burying Grounds. III. Violating Grave. [See, also. Board of Health.] I. General Rules. 1. Neither the husband nor the next of kin have, strictly speaking, any right of property in a dead body; but controversies between them as to the place of burial are, in this country, within the jurisdiction of a court of equity. Meagher v. Driscoll, 99 281; Weld ». Walker, 130 432. 2. It is the husband's right and duty to bury the body of his deceased wife. Lakin v. Ames, (10 C.) 64 198; Du- rell v. Hayward, (9 G.I 75 248; Cun- ningham v. Reardon, 98 538; Weld o. Walker, 130 422. 3. Where a body has been once buried, no one has the right to remove it, without the con- sent of the owner of the grave, or leave of the proper ecclesiastical, municipal, or judicial au- thority. Weld v. Walker, 130 422. 4. A widow, who is authorized by her hus- band s heirs, to erect a monument on the burial lot owned by him, may make any reasonable contract therefor, and may authorize the con- t: actor to enter the lot to erect the monument or to remove it if it is not satisfactory, or is not paid for. J Fletcher v. Evans, 140 241. 5.. If a husband has not freely consented to the burial of his wife on land of another, with the intention or understanding that it shall be her final resting place, a court of equity will permit him to remove the body, with the coffin and tombstones, for burial elsewhere, and will restrain the landowner from interference with such removal. Weld v. Walker, 130 422. 6. A license from a mother to her son, to open the family tomb, for the purpose of de- positing therein the body of his son, will be in- ferred from circumstances. Lakin e. Ames, (10 C.) 64 198. 7. The owner of a tomb, in the church build- ing of a religious society, has no title in the land, but only an interest in the structure, and cannot prevent a sale of the land and building by the society, or the removal of the remains, where, in other respects, such acts are done ac cording to law. And a recital in an act of the legislature, that the continuance of a cemetery in a church building is injurious to the public health, cannot be contradicted. Sohier v. Trinity Ch., 109 1. 8. One, who has buried a child in a cemetery lot, of which he holds possession under a deed from the owner, for the purpose of burial, etc., may maintain trespass quare clausum against the superintendent, for disinterring and re- moving the remains; and if the defendant acted in wilful disregard or careless ignorance of the plaintiff's rights, the jury may take into consideration the injury to the plaintiff's feel- ings. Meagher ». Driscoll, 99 281. 9. The sexton of a church building may law- fully eject an undertaker, who, after notice, persists in conducting a funeral there, in viola- tion of the reasonable rules prescribed by the authorities of the church. Comm. v, Dougherty, 107 243. 10. A land owner does not violate the statute against desecration of burying grounds, by erecting a structure on his land, in order to prevent the flow of water thereupon from an adjoining burying ground. Bates v. Smith, 100 181. 11. Under P. S., Ch. 116, § 36, the judge of the probate court may authorize an executor, who holds money under the will for the pur- pose of keeping the testator's cemetery lot in suitable condition, to deposit the money in a savings bank in perpetual trust for the pur- pose. Gates v. White, 139 353. 12. The by-laws and ordinances of Boston, concerning burying grounds, are regulations relating to health. Comm. v. Pahey, (5 C.) 59 408. [See Board of Health.! 13. As to the validity of certain by-laws of Charlestown, relating to bringing into the town or burying therein dead bodies, see Austin v. Murray, (16 P.) 33 121. II. Town Cemeteries, and other public burying Grounds. 14. A license, from the united corporation of town and parish, to erect a tomb in the bury- ing yard, conveys the right of proper access thereto; and a removal by 1he tomb owner of an obstruction to such access is not a trespass. Lakin 1>. Ames, (10 C) 64 198. 174 BUEIAL, II; III— BY-LAWS AND ORDINANCES. 15. A husband, who has buried his wife in a public burying ground, is not liable in trespass, for removing a stone, afterwards placed there by her mother, for the purpose of substituting anothe ■ stone. Durell v. Hay ward, (9 G.) 75 248. 16. A lot owner in a public cemetery cannot maintain a bill in equi.y, to prevent the city from closing an avenue in front of the lot, or erecting a wall and terrace on an open triangu- lar space in front, it appearing that he sustains no damage thereby. Perkins v. Lawrence, 138 361. 17. Cutting trees upon a public burying ground is a violation of the statute on that sub- ject, although it is done by the owner of the fee. Comm. v. Viall, (2 A.) 84 512. 18. And it is no defence to an indictment for desecrating and disfiguring a public burying ground, that the defendant is the owner of t_e fee of lots within it. Comm. v. Wellington, (7 A.) 89 299. 19. Upon the trial of such an indictment, the place may be shown to be a public burying ground by evidence of its use and occupation for burial, by others than the owner of the fee, under claim of right; and having once acquired that character, it will not lose it by mere dis- use, although the owner of the fee has depas- tur d it, cultivated it, and otherwise used it as his own, under claim of right. Comm. d. Viall, (2 A.) 84 512. 20. It is not necessary that an indictment for desecrating a public burying ground should de- scribe it by metes and bounds; but if it is so described therein, the proof must correspond with the averment, although the injury was committed within the part included in the boundaries correctly given. Comm. «. Wellington, (7 A.) 89 299. 81. The supreme judicial court has no juris- diction to restrain or regulate the proceedings of a town, in granting and voting money for a burying ground. Jenkins i>. Andover, 103 94. 22. The limits of a town burying ground can- not be proved by oral evidence, unless it is shown that the record of laying it out is lost. Stearns v. Woodbury, (10 Met.) 51 27. 23. By-laws, adopted by a town as regulations for the management of a new burying ground, by the selectmen, do not constitute a contract between the town and the persons to whom deeds of lots are given. Fay v. Milford, 124 79. 24. The right of a town to take adjoining land for the purpose of enlarging its burying ground, under St. 1866, Ch. 112 (see, now, St. 1877, Ch. 69; P. S., Ch. 82, §§ 10 to 15), was not affected by the manner in which the title to the land was limited among the owners; and an incapacity to sell was a sufficient refusal to sell. Balch v. Essex Com'rs, 103 106. 25. It was not necessary, that the record of the adjudication of the county commissioners, under that statute, should set forth the jurisdic- tional facts, if they appeared in the application- and an adjudication respecting land held already burial for purposes, reserving the rights of the owners, was sufficient Balch «. Essex Com'rs, 103 106. 26. It was no objection to the adjudication of the commissioners, under that statute, that there was no purpose on the part of the' town to make burials in the land, but that it was to be left open, as a passage-way to the burying ground from a pubiic street. Balch v. Essex Com'rs, 103 106. 27. Qu. , whether the actual occupation of the land by private proprietors, as a burying ground prevented its bei :g taken under that statute. Balch v. Essex Com'rs, 103 106. 28. The statute prohibiting any land to be thereafter used for burial purposes, except by consent of the municipal authorities, reserving vested rights to use land for that purpose, is constitutional. Woodlawn Cem. v. Everett, 118 354. 29. Under such a statute, land is not already dedicated for burial purposes, unless it has been devoted or set apart therefor, and some active measures taken to prepare the ground therefor. Woodlawn Cem. i>. Everett, 118 354. III. Violating Grave. 30. At common law, disinterring a human body is an indictable offence; but the statute has superseded the common law. Comm. v. Cooley, (10 P.) 27 37; Comm. v Marshall, (11 P.) 28 350. 31 . Under the former statute, it was necessary to aver and prove that the removal was for the purpose of dissection. Comm. t>. Slack, (19 P.) 36 304. Aliter now, G. S., Ch. 165, § 37; P. S.,Ch. 207, § 47. 32. The ownership of the burying ground is immaterial; and, if alleged in the' indictment, need not be proved. Comm. ■». Cooley, (10 P.) 27 37. 33. It is sufficient to aver that the defendant was not authorized by the selectmen, etc., of the town, where the body was buried. Comm. v. Loring, (8 P.) 25 370. 34. As to evidence of receiving, concealing, etc., a body under the act of 1814, see Comm. v. Loring, (8 P.) 25 370. Burning a building, [See Arson.] By-laws and ordinances. [Of private corporations, etc., see Bridge, etc. ; Corporation; Insurance; Insurance Company ; Joint Stock Association ; Turnpike. Of towns and cities, see Town and City, II, (5). See, also, the titles of various subjects, viz. : Animal, etc. ; Board of Health ; Bridge ; Burial, etc ; in- spection ; Intoxicating Liquors ; Weights and Measures. Effect of revision, see Bond, art. 59.] CALENDAR— OAEEIEE, I, (1). 175 C. Calendar. LSee TiME.l Calf. [See Indictment, VIII, (63) ; Provisions.] Cambridge. [Revision of ordinances, effect upon Vater regis- trar's bond, see Bond, art. 59. Pilling lands to abate nuisance, see Board of Health; Nuisance, III, (3). For various other rulings upon statdtes relating to Cambridge, see Town and City.] Camp meeting. 1. The statute, St. 1867, Ch. 59; P. S., Ch. 207, § 22, forbidding peddling goods, selling refreshments, etc., within one mfle of a camp- meeting, without the permission of the officers, etc., is constitutional. Cornm. v. Bearse, 132 542. 2. Upon the trial of an indictment under that statute, it is not necessary to show that there was any formal organization of the meeting, or that the defendant had notice of the meeting. Comm. ». Bearse, 132 542. Canal. [See Boundary, II, (4); Corporation, X; Nuis- ance, arts. 28, 29. See, also, Briggs v. Cape Cod Ship Cana 1 Co., 137 71, cited in Corporation, arts. 20 to 22.1 Cancellation of instrument. -,r LS £? EQurrYJuRiSDiCTioN,II,(12);Il,(l3); Fraud, V, (2) ; Injunction, 1, (1); II, (4).] Capital and income. [See Income.'] Capital trial. [See Supreme Judicial Court : Trial.] Carrier. I. Carrier of Property. (1.) "Who is a carrier. (2.) General rules as to liability. (3.) Connecting lines; and loss, etc., beyond route. (4.) Delivery to carrier. (5.) Delivery by carrier. (6.) Delay. (7.) Liability as warehouseman. (8.) Freight and other charges, and lien therefor. (9.) Other matters. II. Carrier op Persons. (1.) General rules. (2.) Tickets and fare. (3.) Acts of officers and servants. (4.) Baggage. III. Special Contract relating to Lia- bility. IV. Homicide by Negligence. (1.) Action for homicide. (2.) Indictment. [As to damages for injury by carrier's negligence, see Master and Servant, II; Negligence, Hi, (1). For the measure of damages^see Damages, IV, (7). Generally, see Bailment; Bill of Lading; Ferry; Negligence; Eailroad; Shipping.] I. Carrier op Property. (1.) WIio is a carrier. 1. A company, which exercises the employ- ment of receiving, carrying, and delivering goods for hire, in behalf of all persons who re- quire its services, and in that capacity takes goods from the owner's custody, assumes en- tire control and possession of them, transports them, a: d delivers them at their destination, to one authorized to receive them, is a common carrier towards the persons who employ it; and the name or style, under which it assumes to carry on the business, is wholly immaterial. Buckland •». Adams Express Co., 97 124. 2. And it makes no difference that the com- pany contracts with others, to transport the goods in vehicles of which they are the owners, and the movements of which it does not man- age or control. Buckland v. Adams Express Co., 97 124. 3. The practice of carrying for hire in a stage coach, parcels not belonging to passen- gers, constitutes the proprietors common car- riers, and their responsibility is the same, whether the driver is told that a package of bank notes contains money, or papers as valu- able as money. Dwight v. Brewster, (1 P.) 18 50. 4. An advertisement containing the clause, "all baggage at the risk of the owners," does not apply to such parcels. Dwight v. Brewster, (1 P.) 18 50. 6. A receiver, running a railroad under an appointment of a court in another state, is liable here as a common carrier. Paige i>. Smith, 99 395. 6. A street railroad company, habitually car- rying parcels for hire on the platf orm of its cars, with the knowledge of its superintendent, is a common carrier of such parcels. Levi v. Lynn & B. R. R., (11 A.) 93 300. 176 CARRIER, I, (1), (2). 7. Where one, who had been a clerk of an express company, delivers his trunk to his suc- cessor, to be forwarded by the company, and pays nothing for the carriage, but testifies that he would have paid if he had been asked, but supposed it would go free, as that was the cus- tom as respected employees, the jury may find that the bailment was not gratuitous. Grott v. Dinsmore, 111 45. 8. One, who is not a carrier to the place where the parcel is to be delivered, but is such carrier over part of the route, is liable as a carrier, if he accepts a package for the purpose of deliv- ery at that place; and whether he did so is for the jury. Pitlock v. Wells, F. & Co., 109 452. LSee, alao,post, I, &).'] 9. A chartered railroad company of this Commonwealth, cannot, by a lease, without legislative authority, of a portion of its road to a corporation created by another state, dis- charge itself from liability as a common carrier on that part of its road for goods delivered to it. Langley v. Boston & M. R. R., (10 G.) 76 103. 10. But under the same circumstances, the foreign railroad corporation, which holds itself out as a common carrier over that portion of the road, is liable as a carrier for goods deliv- ered to it. McCluer «. Manchester & L. R. R., (13 G.) 79 134. 11. A railroad company, which receives from another company, for hire, to draw over its railroad, cars with passengers and freight, is liable to the latter company as a common car- , rier for injury to the cars, while in transit over its road. Vermont & M. R. R. ■». Fitchburg R. R., (14 A.) 96 462. [For the liability of a ferryman in the transporta- tion of animals, see Ferry,] (2.) General rules as to liability. LSee, also. Bill of Lading. 1 12. A common carrier is responsible for all losses and damages which may happen to the goods, except such as result from the act of God, or of a public enemy, or from the act or default of the owner himself, unless such lia- bility is restricted by the terms of the contract. Hastings v. Pepper, (11 P.) 28 41; Kiff v. Old Colony, etc., R. R, 117 591. 13. Storm, lightning, and the perils of the seas, are deemed the act of God, within the rule. Qu., as to freezing. Swetland v. Boston & A. R. R., 102 276, Reynolds v Boston & A. R. R., 121 291. I As to the effect of the act, tJ. S. St. 1851, Ch. 43, exempting ship owners from liability for loss by Are without their own neglect, see Shtppinq, I, (3), (B),J It. During the civil war, the Confederate States were a public enemy. Tirrell v. Gage, (4 A,) 86 245. 15. For goods -1 lost by nonfeasance only, trover will not lie against a carrier, but it will for a misdelivery. Bowlin v. Nye, (10 C.) 64 416; Claf- hn v. Boston & L. R. R. , (7 A.) 89 341 . 16. And the representation of the person to whom they were delivered, that he was author- ized to receive them, does not shield the car- rier; nor is the question of his care or negli- gence material. Hall v. Boston & W. R. R., (14 A.) 96 154; Forbes 'v. Boston & L. R. R , 133 439. 17. Where a person orders goods to be sent to him, under a fictitious name, in another town, a delivery to the impostor will protect the carrier in an action by the consignor; and it does not affect the question, that the delivery clerk knew the impostor's real name, and the latter represented to him that he was author- ized to receive the goods by the person whose name he assumed. Dunbar v. Providence R. R. , 110 26. 18. And it makes no difference that there is another person of that name in the town, by whom the consignor supposed the goods were ordered. Samuel v. Cheney, 135 278. See, also, Robertson ». Coleman, 141 231. 19. But if goods are consigned to A, the carrier is not justified in delivering them at the store of B, although A has guarantied the rent, and been compelled to pay it. Mahon t>. Blake, 125 477. [As to the duty of a carrier with respect to deliv- ery, see further, post, I, (5).] 20. A carrier is not protected by the seizure of the goods in transit under an attachment, if they were exempt from attachment, or were not the property of the defendant in the attach- ment. Edwards v. White Line Transit Co., 104 159; Kiff v. Old Colony, etc., Eail- way, 117 591 21. But the carrier may be summoned as trustee, and charged as a trustee, if the goods belong to the defendant. Adams v. Scott, 104 164. 22. So where goods have reached their desti- nation, and are there attached as the property of the consignee, the consignor cannot main- tain trover against the carrier French «. Star Union Trans. Co., 134 288. 23. In an action on contract against a carrier, the burden of proof is on him to show that the goods were lost or injured by some cause which relieves him from liability. Alden'a. Pearson, (3 G) 69 342, Lewis v. Smith, "107 334. 24. And the receipt, by the consignee, of all the casks shipped, does not bar an action against the carrier for loss of part of the contents, unless the consignee received tljem as a compli- ance by the carrier Aiden 9 Pearson, (3G) 69 342. 25. The burden is on the plaintiff to show- that goods, which were found to be damaged, were damaged while in the carrier's possession. A bih of lading reciting that the goods were in good condition, is only prima facie evidence of that fact. Richards v. Doe, 100 524; Swetland v. Boston & A R R , 102 276 26. And similarly a receipt to the carrier, that the goods were delivered in good cc j n ™' tion, is only prima facie evidence of that fact CAEEIEE, I, (2), (3). m Sanford ®. Housatonlc E. B., (11 C.) 65 155. 27. If the bill of lading calls for a smaller quantity than the actual quantity of goods, and the carrier removes the excess, he is liable in troyer, although the weight was fraudulently understated. Peebles v. Boston & A. R. R., 112 498; Wiggin v. Boston & A. B. R., 120 201. 28. An action for failure to transport and de- liver goods, lies in favor of the consignor, and he can recover the full value, although the con- signee owned the goods, if the latter has not sued; such recovery is for the benefit of the consignee. Finn v. Western B. B., 112 524. See, also, Sanford «. Housatonic B. B., (11 C.) 65 155; Blanchard v. Page, (8 G,) 74 281. 29. "Where a foreign express company con- sists of L at Paris, and B at New York, and goods are delivered to L at Paris, for transport- ation to a place in this Commonwealth, and injured in transit, an action for the injury lies against B. Case v. Baldwin, 136 90. 30. As to the sufficiency of particular facts to prove the loss of the goods, see Ingledew ». Northern B. B., (7 G.) 73 86; Morley v. Eastern Express Co., 116 97; Green «. Boston & L. R. B., 128 221. 31. The consignee is under no obligation to state the value of the goods to the carrier, un- less inquiry is made; but if, in answer to an inquiry, he understates the value, or _ there is any concealment or deception, the carrier is not liable for the full value. Phillips ». Earle, (8 P.) 25 182. 32. If the consignor puts combustibles with his goods, either negligently and wrongfully, or in violation of the carrier's rules, and the goods arc lost by a fire caused thereby, he can- not recover. Pratt v. Ogdensburg & L. C. R. R., 102 557. (3.) Connecting lines, and loss, etc., be- yond route. LSee, also, ante, arts. 8 to 11 ; post, arts. 50, 162.] 33. The English doctrine, that where there is one contract for carrying over several con- necting lines, the first carrier is exclusively lia- ble for losses over the whole route, has never prevailed here- and the doctrine here is well established, that each carrier is responsible for his own negligence, even although the first car- rier may also, by express contract, have assumed a responsibility for losses on the succeeding lines Nutting e. Conn R. Railroad, (1 G.) 67 502, Judson v. Western R R., (4 A.) 86 520; Lowell W F Co. v. Sargent, (8 A.) 90 189, Darling v Boston & W B. R (11 A.) 93 295; Peebles v. Boston & A. B B Co., 112 498 ; Aigen v. Boston & M R. R, 132 423. 34. But where several railroad companies, having connecting lines, associate themselves for transportation under a specified name, with a common agent, they are liable jointly and Vol. 1—23 severally for goods shipped under a bill of lading in the name of the association, although it contains a stipulation that each company is solely liable for a loss of goods in its custody. Block e. Fitchburg B B., 139 308. 35. A contract between two or more connect- ing companies, that any injury shall be paid for by the company on whose line it occurs, and, if the damage cannot be traced to either, it shall be paid by each in proportion to its share of the freight, does not make them part- ners; and is inadmissible, in an action against the second company, where the loss is not proved to have taken place on its line. Aigen v. Boston & M. B. R., 132 423. See, also, Gass v. New York, P. & B. R. R., 99 220; Burroughs «. Norwich & W. R. R., 100 26; Washburn & M. M. Co. v. Providence & W. B B., 113 490. 36. And where the first carrier is a chartered company, which receives the goods for trans- portation over the whole route, without any- thing to indicate an extension or limitation of its liability, it is presumed to be liable for a loss or injury occurring only upon its own route ; but where it is not chartered, and there is no special agreement, it is for the jury to say what was the undertaking. Burroughs v. Norwich & W. B. B. Co., 100 26; Pendergast i>. Adams Express Co., 101 120; Hill Mani Co. v. Boston & L. Bailroad, 104 122; Washburn & M. M. Co. 1>. Prov. &W.B.B. 113 490. 37. And where the receipt expressly limits the first carrier's liability to its own route, it is not liable for a loss occurring beyond it. Pendergast®. Adams Express Co., 101 120. 38. But in an action by one of the connect- ing companies, under an agreement to share profits, etc., to recover freight, the defendant may set off damage to the goods by the fault of any company on the line. Fitchburg & W. R. R. v. Hanna, (6 G.) 72 539. 39 And where there is no written contract between the companies, they are all jointly lia- ble, if the jury find that there was a de facto partnership. Pratt v. Ogdensburg & L. C. R. R., 102 557. 40. Where two stage companies, having con- necting lines, employ the same driver, under an agreement that each shall receive a share of profits, proportioned to the length of its route, they are jointly liable for the loss of goods de- livered to him for the entire route. Cobb v. Abbot, (14 P.) 31 289. 41. Where a railroad company, in Novem- ber, left a car containing perishable property on the track of a connecting company, without de- livering the way bill, etc. , for which reason the latter company did not forward it, the former company is liable for injury resulting from the Reynolds v. Boston & A. R. R. 121 291. 42. A carrier, who acts as the forwarding agent of the owner of the goods, in giving di- rections, by way bids or otherwise, to the connecting lines, is responsible, as such for- warding agent, only for want of reasonable care and diligence. 1T8 CAREIEE, I, (3), (4), (5). Northern R. R. v. Fitchburg R. R., (6 A.) 88 254. 43. Where a carrier expressly agrees to for- ward goods beyond his route, by a particular line, and forwards it by another line, he is liable for the difference in cost, although its agent did not know of, and failed upon inquiry to ascertain, the line indicated. Proctor v. Eastern R. R., 105 512. 44. If it is the first carrier's custom to for- ward by sailing vessels, goods whose destina- tion is beyond his line, he is not liable, in the absence of special instructions, for not for- warding them by steamers. Simkins v. Norwich & N. L. S. Co., (11 C.) 65 102. See, also, post, art. 50. 45. The question of negligence is peculiarly for the jury. Aigen i>. Boston & M. Railroad, 132 423. <4.) Delivery to carrier. 46. The responsibility of a carrier, as such, commences when there has been a complete de- livery of the goods to him, for immediate transportation; and a delivery is not complete for that purpose, if anything remains to be done by the shipper, before the goods can be sent on their way. Barron v. Eldredge, 100 455. 47. Until such complete delivery, he is liable as a warehouseman only. Judson v. Western R. R., (4 A.) 86 520. 48. If the carrier receives goods into his warehouse, for the accommodation of himself and his customers, so that the deposit is a mere accessory to the carriage, and for the purpose of facilitating it, his liability as carrier then commences. Fitchburg & W. R. R. «. Hanna, (6 G.) 72 539; Judson v. Western R. R., (4 A.) 86 520. 49. But not where he thus receives them, for the shipper's accommodation, to await the de- livery of the entire lot, before beginning the transportation. Watts v. Boston & L. R. R., 106 466. 50. In the case of connecting lines, where the goods are transported over the whole route in the same car, the successive carriers are liable as they severally receive them. But where one carrier 1 has deposited the goods in his own warehouse, whence they are to be taken by the succeeding carrier, the former is liable as a warehouseman, until the succeeding carrier receives them. Judson «. Western R. R., (4 A.) 86 520. See, also, Norway P. Co. v. Boston & M. R. R., (1 G.) 67 263; Denny «. New York C. R. R., (13 G.) 79 481. > 51. Where an article, taken to a railroad sta- tion by a truckman, is injured, while being loaded on the cars, by the truckman's negli- gence, the company is liable, if it had accepted and taken charge of the article. Merritt ». Old Colony & N. R. R., (11 A.) 93 80. _ 52. Where a track runs from tne freignt sta- tion of a railroad company to an elevator, the proprietor of which receives and stores goods at the shippers' expense, until they are loaded upon cars run to the elevator, and is intrusted by the company with the loading of the cars with such customers' grain, as he chooses, delivery at the elevator, with notice, is delivery to the company; not so, as to. Thompson, 99 259. 60. But a usage of an expressman to deliver packages at the Tailway station, must be shown to have been known to the consignor, in order to bind him. Packard •». Earle, 113 280. CAEEIER, I, (5), (6), (7). 179 61. Where goods are injured in the delivery thereof, by a defect in an apparatus for the pur- pose, furnished by the owner, the carrier is not liable. Loveland v. Burke, 120 139. 62. And the carrier may show a local usage, that the apparatus is to be furnished by the con- signee. Loveland v. Burke, 120 139. 63. And if the owner or consignee interferes to control or direct the place or manner of de- livery, the carrier is not responsible for a loss or injury, happening in the course of delivery. Lewis*. Western B. B., (10 Met.) 51 509; Loveland v. Burke, 120 139; Pot- ter ». Johnson, 131 297. 64. But in the absence of any such control or direction, the carrier is liable for want of ordi- nary care in his servants in unloading the goods, although the consignee knew it to be the car- rier's rule that the consignee must unload. Kimball «. Western B. B., (6 G. 72 542. 65. Where a package is to be delivered at a certain place, the absence of the consignee or other person authorized to receive it, at the time of the carrier's arrival, will discharge the car- rier, if it is subsequently lost; aliter, if it never reached the place. Phillips v. Earl, (8 P.) 25 182. 66. An action for conversion will not lie against a carrier, for failure seasonably to de- liver goods, without a previous demand, unless the goods have been lost or destroyed. Bobinson v. Austin, (2 G.) 68 564; Alden ». Pearson, (3 G.) 69 342. (6.) Delay. 67. A carrier is not liable for losses, expenses, or other damage, from mere delay, arising from a temporary excess of business, and without his fault. Thayer v. Burchard, 99 508. 68. Where a carrier negligently delays to for- ward goods, he is not liable for an injury hap- pening to them, by a peril excepted in the con- tract of carriage, while they remain at the place of delivery to him, although they would not have been exposed to the peril, but for the delay. Denny v. New York C. B. E., (13 G.) 79 481; Hoadley «. Northern Trans. Co., 115 304. 69. Where a long train of freight cars is ob- structed by a snow storm, in a cold night, so that some must be left behind, the conductor is not bound, as matter of law, to select and take forward a car containing, to his knowledge, goods which would be spoiled by freezing, in preference to those containing goods of which he knows nothing. Swetland v. Boston & A. B. B., 102 276. (7.) Liability as warehouseman. [See, also, ante; I, (4) ; I, (5) ; Bailment, n, (1).] 70. A railroad company ceases to be a com- mon carrier, and becomes a warehouseman, as matter of law, when it has completed the duty of transportation, and assumed the position of warehouseman, as matter of fact, and accord- ing to the usages and necessities of the business in which it is engaged; and thereafter it is liable as a depositary only for want of ordinary care. Norway P. Co. e. Boston & M. B. E., (1 G) 67 263; Sessions v. Western E. E., (16 G.) 82 132; Bice v. Boston & W. E. E., 98 312; Miller v. Mansfield, 112 260; Lane v. Boston & A. E. E., 112 455; Stowe v. New York, B. & P E. E., 113 521; Eice v. Hart, 118 291. 71. And a carrier of money for hire, who keeps it after its arrival in a desk, until it is called for by the owner, is liable as a warehouse- man, and not as a carrier, if the money is lost from the desk. Conway Bk. ■». American Express Co.. (8 A.) 90 512. 72. Where goods, which are not called for on their arrival at their destination, are unloaded and separated from the goods of others, and stowed safely in suitable warehouses or depots, the duty of the company as a common carrier is terminated. Thomas v, Boston & P. B. E., (10 Met.) 51 472. 73. Semble, that a railroad company is not obliged to give notice to the consignee of the arrival of goods, in order to exonerate itself from its liability as a common carrier. Norway P. Co v. Boston & M. B. E., (1 G.) 67 263; Lane v. Boston & A. B. E., 112 455. 74. If there is any question, upon the evi- dence, whether the loss occurred before or after the defendant's liability as a common carrier ceased, it is for thejury. Sessions v. Western E. E, (16 G.) 82 132. 75. Proof of theft merely will not render the company liable. Lamb fl.'Western B. B., (7 A.) 89 98. 76. The burden of proof, where the goods are lost, is upon the defendant; and evidence that the care used was such as is usual with railroad companies, in the keeping of similar freight, is admissible, but not conclusive. Cass v. Boston & L. E. E., (14 A.) 96 448; Lane v. Boston & A. B. E, 112 455. 77. For additional rulings upon the suffici- ency of particular facts to show due care, or the want thereof, see Conway ». American Express Co., (8 A.) 90 512; Stowe v. New York, B. & P. E. B., 113 521; Nichols ®. Smith, 115 332. 78. Where the consignee's teamster calls for the goods, and the freight agent, without due inquiry, falsely informs him that they have not arrived, and they are burned the following night by an accidental fire, the company is liable. Stevens v. Boston & M. E. E., (1 G.) 67 277. 79. For a misdelivery of the whole or a part of the goods remaining in the warehouse, the company is liable, and the question of care or negligence is immaterial. Hall ». Boston & W. B. B., (14 A.) 96 439. [As to the lien for storage, see I, (8) ; and Lien, I.] 180 CAEEIER, I, (8). (8.) Freight and other charges, and lien therefor. [See, also. Lien, I ; shipping, III, (2).] 80. The shipper named in the bill of lading, is liable to the carrier for the freight, although he does not own the goods, and the carrier has waived his lien. Blanchard v. Page, (8 G.) 74 281; "Wooster v. Tarr, \,8 A.) 90 270. 81. "Where part of a shipment of goods is re- plevied from the carrier, after delivery of another part, and before arrival of a third part, the carrier is entitled to freight upon the goods delivered, and those which afterwards arrive, and are taken by the officer and delivered to the consignee, after the beginning of the service of the replevin; but not on the goods replevied, for which the consignee afterwards has judg- ment. Boston & M. R. R. v. Brown, (15 G.) 81 223. 82. Where part of an entire consignment of goods, shipped, by sea, is lost by the carrier's fault, and the residue is sold by him, by the bill of lading, at the port of delivery, he cannot, in an action by the consignee for the proceeds, de- duct the freight; but he may deduct a discount for the deficiency allowed to the purchaser. Stevens v. Sayward, (8 G.) 74 215. 83. The owner who has received, with the carrier's consent, the residue of a consignment, part of which has been lost, may sue for the loss, without payment or tender of the freight. Alden «. Pearson, (3 G.) 69 342. 84. Where the carrier has converted the goods, or refuses to deliver, from a cause other than nonpayment of freight, an action lies by the consignee, without tendering the freight. Peebles v. Boston & A. R. R., 112 498; Wiggin v. Boston & A. R. R., 120 201. 85. So where he requires an additional pay- ment of a sum due for the passage of a pass- enger. Adams v. Clark, (9 C.) 63 215. 86. Evidence is admissible, in an action to re- cover freight, where there was no special con- tract, that the earner raised his charges beyond the sum which the defendant was accustomed to pay, without notice to him. Fitchburg R. R. v. Gage, (12 G.) 78 393. 87. Where a company raises its rates, and gives notice thereof to a person, with whom it has made an agreement for transportation at certain rates, until notice to the contrary, it is bound to transport at the old rates, goods de- livered before the day when the new rates are to take effect; and the time allowed before a change must be reasonable. Thayer v. Burchard, 99 508. 88. For a ruling as to the effect of a change of rates in a particular case, see Wellington v. Norwich & W. R. R., 107 582. 89. Independently of a statute provision, a railroad company is not bound to transport goods for all persons at the same rates. o,J ltchbur S R - R - «• Gage, (12 G.) 78 393. 90. As to the effect and construction of St. 1845, Ch. 191, regulating and limiting the righte of connecting roads to use a railroad, see Pitchburg R. R. v. Gage, (12 G.) 78 393. 91. The statute, St. 1874, Ch. 372, § 140' P S., Ch. 112, § 190, forbidding the charging of i greater sum for transportation to an intermediate station, than to a more distant station, applies only to the transportation by the company over its own road, not over other railroads. Comm. v. Worcester & N. R. R., 124 561. 92. The consignee, under a bill of lading, whereby the goods are to be delivered to him, "he paying freight therefor," or otherwise knowing that the carrier looks to him for the freight, is liable upon an implied promise to pay the freight, if he accepts the goods. Old Colony Railroad v. Wilder, 137 536. See, also, Boston & M. R. B. «. Whitcher, (1 A.) 83 497. 93. The payment of the freight, and the de- livery of the goods, arc, in the absence of a special contract, concomitant acts, which neither party is obliged to perform, unless the other party is ready to perform the correlative act. Adams v. Clark, (9 C.) 63 215. 94. And the carrier may detain the goods, until the freight is paid or tendered, but he must be ready to deliver them when that is done. Lane v. Penniman, 4 91; Lewis n. Hancock, 11 72; Cowing®. Snow, 11 415. 95. But a carrier has no lien against the true owner, where the goods were delivered to him by one having no right to do so. Robinson e. Baker, (5 C.) 59 137; Clark v. Lowell & L. R. R., (9 G.) 75 231; Gilson «. Gwinn, 107 126. 96. A carrier's lien attaches to every part of the goods subject to it. If not discharged or waived, it remains attached to whatever part of the property may remain in the carrier's poss- ession. A delivery of part releases the part de- livered; but does not discharge the remaining part from the burden of the entire lien, unless such was the intention of the parties, which is for the jury. Lane v. Old Colony & P. R. R. R, (14 Q.) 80 143; Ware R. R. R. ». Vibbard, 114 447; New Haven & N. Co. «. Cam- pbell, 128 104 97. The rule holds against the right of the consignor to stop in transitu, goods not deliv- ered. Potts v. New York & N. E. R. R., 131 455. 98. A second carrier has a lien, not only for his own freight, but for freight paid by him to the first carrier. •Briggs ©. Boston & L. R. R., (6 A.) 8S 246. 99. Where a carrier, having a lien, delivers part of a consignment to the purchaser of the whole, and, on the arrival of the remainder, notifies him that he claims a lien upon it for the entire freight, the purchaser, by taking it ■with- out right, does not become liable for the whole freight. New York & N. E. R. R. «. Sanders, 134. 53; explaining, New Haven & X. Co. v. Campbell, 128 104 CAUKIEE, I, (8), (9); II, (1), 181 100. Where the usual place of delivery of a carrier by water is upon the wharf, he has no lien for the expense of transporting the goods from the wharf to the consignee's place of business, in the absence of any such instruc- tions. Eichardson v. Rich, 104 156. 101. Where goods are sent, by mistake of the first carrier, to the wrong place, the second carrier has a lien, as the first carrier is the for- warding agent of the owner. Briggs v. Boston & L. R. R., (6 A.) 88 246. 102. A carrier selling goods, on which he has a lien, is liable for the conversion; but he may deduct the amount of his lien. Briggs v. Boston & L. R. R. , (6 A.) 88 246. 103. A railroad company, having a usage, known to the consignee, by which certain goods must be unloaded within twenty-four hours after notice of arrival, and to charge storage for a delay in so doing, has a lien for the storage also. Miller v. Mansfield, 112 260. (9.) Other matters. 104. One, who sends by a carrier a dangerous article, is bound to give him notice of its char- acter, that he may either refuse to take it, or be enabled, if he takes it, to make suitable provi- sion against the danger. And where two manufacturers send to the same customer dif- ferent articles, dangerous and explosive, when in combination, without such notice, and an explosion ensues, they are jointly liable to the carrier and to a third person injured, although they did not act in concert. Boston & A. R. R. v. Shanly, 107 568. 105. A railroad company, which undertakes to carry live animals, must provide cars of sufficient strength to prevent them from break- ing through. Smith v. New Haven & N. R. R., (12 A.) 94 531. 106. But the company is not liable for an in- jury occurring from the animals' viciousness or xuiruliness, while being transported in a proper car. Smith v. New Haven & N. R. R., (12 A.) 94 531 ; Evans 1>. Fitchburg R. R. , 111 142. 107. Or for an injury occasioned by the own- er's neglect, as insufficiency of halters, or fail- ing to remove horses' shoes. Evans «. Fitchburg R. R., HI 143. 108. An action lies in favor of the owner of an animal injured while in the carrier's posses- sion, although he has not given the carrier no- tice of the injury, or offered him the animal to be cared for. Evans «. Dunbar, 117 546. H. Cakbtek op Persons. (1.) General rales, [For cases where these rules are applied In ac- tions to recover tor injuries to the peroon, see, also. Negligence, passim, particulary in, (1).] 109. A carrier of passengers is bound to use the utmost care and diligence, in providing safe, sufficient, and suitable vehicles, workmen, and other means of transportation, in order to pre- vent injuries which human foresight can guard against; including, if the carrier is a railroad company, the management of the trains and cars, and the structure of the track. But if an injury arises from a hidden defect, which careful and thorough examination would not disclose, and vigilant oversight and sound judg- ment would not prevent, the carrier is not liable. Ingalls v. Bills, (9 Met.) 50 1; McEl- roy v. Nashua & L. R. R., (4 C.) 58 400; Warren v. Fitchburg R. R., (8 A.) 90 227; White «. Fitchburg R. R., 136 321. 110. It is no defence, that the injury occurred in part through the negligence or trespass of a person, not connected with the carrier. Eaton v. Boston & L. R. R. (11 A.) 93 500. 111. A passenger, who, by reason of a peril from an accident, for which the company would be liable, leaps from the vehicle, may recover for injury produced thereby, if the leaping was an act of reasonable precaution, although he might safely have kept his seat. Ingalls v. Bills, (9 Met.) 50 1 112. A person who has bought a ticket at a railway station, is entitled to the same care and protection, with respect to his access to the train, as a traveller. Warren «. Fitchburg R. R., (8 A.) 90 227. 113. A railroad company, which receives and draws upon its track, under its own con- trol, the cars of another, is a common carrier quoad the passengers therein. Schopman «. Boston & W. R. R., (9 C.) 63 24; Fletcher v. Boston & M. R. R., (1A.) 83 9. 114. So is a company which has leased its track to another, under a statute, providing that the lease shall not exempt the company from any duty or liability, to which it is subject. Quested v. Newburyport & A. H. R. R., 127 204. 115. And a railroad company is liable for an injury sustained by its passenger, through care- less management of a switch, by which another railroad enters upon its road, although the switch is provided and managed by the other road. McElroy i>. Nashua & L. R. R., (4C.) 58 400. 116. A company, which carries a person, without payment of fare, is liable for want of due and reasonable care. Todd v. Old Colony & F. R. R. R., (8 A.) 85 18. 117. A railroad company is not bound to furnish to an expressman different facilities from those of other passengers. Sargent v. Boston & L. R. R., 115 416. 118. A railroad company is bound, as respects a ticket-holder, to start its trains at the adver- tised times. It has the power to make changes upon reasonable notice; but hand bills, in the cars and station, are not reasonable notice of the change of the advertised time for starting a particular train. Sears v. Eastern R. R., (14 A.) 96 483. 182 CARRIER, II, (2), (3). (2.) Tickets and fare. [See, also, Railroad, IV, (7).] 119. The holder of a railroad ticket is not bound by a rule, of which he had no notice, by his ticket or otherwise, restricting his ticket to particular trains. Maroney v. Old Colony & N. R. W., 106 153. 120. And evidence is admissible, in an action for not carrying him, that he was informed by the seller that he could go with it on a regular train, although the seller was not the company's agent. Maroney v. Old Colony & N. R. W., 106 153. 121. A ticket which bears on its face, " Good only for two days after date," ceases to be valid after the two days. Boston & L. R. R. Co. ■». Proctor, (1 A.) 83 267. 122. The contract between the company and the purchaser of a ticket is the same, whether the ticket is purchased at the station, or fiom an authorized ■Bgent elsewhere, Schopman v. Boston & W. R. R., (9 C.) 63 24. 123. One who purchases a ticket, entitling him only to a continuous passage through, has no right to leave the train, and be taken up at a way station. Cheney «. Boston & M. R. R., (11 Met.) 52 121. 124. A railroad company, selling tickets com- posed of coupons, each bearing the name of the company, but authorizing the holder to pass over other companies' roads, sold pursuant to an agreement between the different companies, is not liable for an injury sustained by the passen- ger upon one of the other companies' road. Hartan v. Eastern R. R., 114 44. 125. "Where a carrier by steamboat requires passengers to purchase tickets, before going aboard, and to deliver them upon landing, the loss of the ticket falls upon the passenger, and he must pay his fare again. If he attempts to land, alleging that he has lost his ticket, the carrier has a right to detain him a reasonable time, to inquire into the facts. Standish «. Narragansett S. S. Co., Ill 512. 126. Passage money, paid for a sea voyage, may be recovered back, if the voyage is broken up by a peril of the sea, and the passenger is not forwarded to his destination. Brown «. Harris, (2 G.) 68 359. 127. A statute, allowing a passenger on a street railroad to receive a check, on payment of an additional sum, entitling him to a second passage, does not allow him to surrender the check and leave the car, on a second passage, and then insist upon an additional passage in another car of the line from that point. Wakefield ». South Boston R. R. , 117 544. 128. The statute, St. 1874, Ch. 372, § 138; P. S., Ch. 112, § 188, as to carrying all persons "on reasonable and equal terms, etc., is not violated by a regulation, which allows the presi- dent of the company, in his discretion, to sell tickets for less than the regular price, to persons of a particular class. Spofford v. Boston & M. R. R, 128 326. And see Fitchburg R R. v. Gaee (12 G.) 78 393, therein explained. ' 129. A statute, requiring the rates of fare to be the same for all persons between the same points, is not violated by a regulation allowing a discount from the advertised rates, to a person buying a ticket before entering the train; and the company is not bound to keep its office open to sell tickets, after the time when the train is advertised to leave the station. Swan v. Manchester <& L, R. R , 132 116. [As to ejection of a passenger for failure to pay his passage or produce his ticket, seepost,!!, (3).] (3.) Acts of officers and servants. 130. A railroad company is liable to the same extent as an individual, for an injury done by its servant in the course of his employment. If the act is within the general scope of the employment, the company is liable, whether it is wilful or merely negligent, or even if it is contrary to an express order of the master. Ramsden v. Boston & A. R. R., 104 117. See, also, Moore «. Fitchburg R. R., (4 G.) 70 465; Hewett v. Swift, (3 A.) 85 420; Holmes v. Wakefield, (12 A.) 94 580; Coleman «. New York & N. H. R. R, 106 160. [See, also, Master and Servant, II, (3) ; Eail- koad, IV, (7).] 131. The company is responsible, if an assistant, employed by the conductor to remove a passenger from a car wrongfully, strikes him in so doing, although contrary to the con- ductor's orders. Coleman v. New York & N. H. R. R., 106 160. 132. If, in ejecting such a passenger from the cars, excessive and unjustifiable violence is used, thereby aggravating a disease of the pas- senger, the company is liable; aliter, if only reasonable force was used. Coleman ». New York & N. H. R. R., 106 160. 133. The question, whether reasonable and necessary force only was used in ejecting a passenger from a car where he had no right to be, is for the jury. Coleman v. New York & N. H. R. R., 106 160. 134. If the assault upon the passenger is proved, the burden is upon the company to show that he was justifiably expelled. St. John v. Eastern R. R., (1 A.) 83 544. 135. A regulation that the conductor shall eject a passenger for refusal to pay his fare, and shall not accept his fare, after the train has stopped for that purpose, is reasonable and au- thorized. O'Brien «. Boston & W. R. R., (15 G.) 81 20. 136. A passenger thus ejected, ataplacewhere there is no station, cannot, by climbing again upon the train before it starts, and tendering the fare, obtain a right to be carried. O'Brien v. Bo'ston & W. R. R, (15 G -) 81 20. 137. Nor can a passenger, ejected at a station, claim to be carried to another station by the CARRIER, II, (3), (4). 183 same train, upon re-entering and tendering only the fare between those two stations. Swan v. Manchester & L. R. R., 132 116. 138. The conductor of a street railroad may exclude or eject a passenger in a state of intox- ication, although he has not committed any act of offence or annoyance, if thei e is reasonable cause to believe that he will do so. Vinton ®. Middlesex R. R., (11 A.) 93 304. Murphy v. Union R. W. Co., 118 228. 139. "Whether it is the exercise of due care to remove him, while the car is in motion, is for the jury. Mi 228. urphy v. Union R. W. Co., 118 140. The officers of a steamship may reserve a table in the dining room for their own use, and forcibly remove a passenger who occupies it Ellis v. Narragansett S. S. Co., Ill 146. 141. The proprietors of a steamboat are liable for an assault by the steward and waiters upon a passenger, upon his reasonable interference with their rudeness to a fellow passenger, his relative. Bryant v. Rich, 106 180. 142. A railroad company is liable for the act of its conductor, in seizing br attempting to seize a passenger's property, to enforce payment of his fare. Ramsden «. Boston & A. R. R., 104 117. 143. In an action of contract against a rail- road company for refusing to receive the plain- tiff's ticket, arresting him as evading his fare, and keeping Mm over night in a police station, it was held, that damages were not recoverable for the indignities, discomforts, illness, etc., produced by the wrongful act of the company's conductor, such damages being recoverable only in an action of tort. Murdock«. Boston & A. Railroad, 133 15. 144. Where the ticket seller delivers to a pas- senger a punched ticket, assuring him that it is good, and the passenger is consequently ejected by the conductor, the company is liable. Murdock ». Boston . International S. B. Co., 98 371. 156. The act of congress, U. S. St. 1851, Ch. 43, § 2, exempting masters, etc., of sea-going vessels from liability for money, jewellery, etc., unless entered on a bill of lading, does not apply to the baggage of a passenger. Dunlap «. International S. B. Co., 98 371. [See Shipping, I, (3).l 157. A passenger on a railroad with a free pass, who buys a ticket for his wife, and de- livers her trunk to the company, without infor- mation that it is not his, may recover for its loss. Malone v. Boston & W. R. R., (12 G ) 78 388. 184 CAEEIER, H, (4); in. 158. A shipowner, who refuses to carry a passenger whom he has agreed to carry, and departs without giving him an opportunity to remove his baggage, is liable in trespass. Holmes v. Doane, (3 G.) 69 328. 159. The act, St. 1851, Oh. 147, § 5, allowing a passenger to testify as to the contents of his trunk, applies to a trunk left with the baggage- master after arrival. Harlow v. Fitchburg E. B., (8 G.) 74 237. As to the common law rule, see Snow «. Eastern E. E., (12 Met.) 53 44. 160. A railroad company, receiving pas- sengers at the station of another road, is bound to have a servant there to look after their bag- gage; and if it is the custom that the baggage- master of the station should do so, it is liable for baggage delivered to him. Jordan v. Fall E. E. E., (5 C.) 59 69. 161. A railroad company cannot exonerate itself from liability for baggage, lost in a sleep- ing car, by proof that the car is owned by an individual, who provides conductors and servants, unless the plaintiff had knowledge thereof. Kinsley v. Lake Shore & M. S. E. E., 54. 162. Where a company sells tickets over its own and a connecting road, failure to deliver baggage at a station on the connecting road, is not alone evidence of negligence by the former road. Stimson ». Conn E. E. E., 98 83. 163. But where the baggage-master of the former company refused to give a check for the baggage, saying it would be safe, as he was to go through, and he did go through, the former company is liable. Najac e. Boston & L. E. E., (7 A.) 89 329. 164. A railroad company, which in fact re- ceives baggage from a passenger, upon a train on which it is not bound to take it, to be trans- ported over a portion of the road, for which he has purchased a ticket, is subject to the statu- tory penalty for refusing to check the baggage. Oomm. ■». Connecticut E. E. E., (15 G.) 81 447. III. Special Contrct relating to Liaee- TITT. 165. A carrier may, by special agreement, limit his common law liability, except for his own misconduct or neglect; and a bill of lading or shipping receipt, taken by a consignor with- out dissent, at the time of the delivery of goods to a carrier for transportation, whereby the car- rier stipulates against such liability, exempts him, although the consignor did not read it. Judson v Western E. E., (6 A.) 88 486; Ellis v. American Tel. Co., (13 A.) 95 226; Buckland «. Adams Express Co., 97 124; Squire «. New York C. E. E., 98 239; Perry v. Thompson, 98 249; Grace v. Adams, 100 505; Pemberton Co. ii. New York C. E. E., 104 144; Hoadley «. Northern. Trans. Co., 115 304. 166. But such a stipulation, contained in a receipt given to the consignor, at his request, after the goods were lost, does not affect his rights, although he had been the carrier's freight agent, and as such had given similar receipts. Gott v. Dinsmore, 1 1 1 45. 167. A general notice does not suffice for that purpose. The terms must have been in some manner adopted as the contract. Judson d. Western E. E., (6 A.) 88 486; Buckland v. Adams Express Co. 97 124. 168. And where the person, from whom the goods were received, was not expressly or im- pliedly authorized to accept the terms, the com- mon law liability is not restricted by a receipt. Buckland v. Adams Express Co., 97 124. See, however, Squire v. New York C. E. E, 98 239. 169. The carrier cannot lawfully limit his liability, so as to exclude a loss happening by his own negligence. Medfield School Dist. v. Boston, H. & E. E. E., 102 552. 170. Where the liability has been thus limited to negligence, packing cotton in a car so tightly, that it could not be removed when it took fire, is not conclusive evidence of negligence. Pemberton Co. v. New York C. B. R„ 104 144. 171. A clause in the contract that "specie, drafts, bank bills, and other articles of great in- trinsic or representative value," will be taken only on certain specified terms, does not apply to a family portrait in a wooden case. Green d. Boston &L.E.E., 128 221. 172. A carrier of animals may, by special con- tract, limit his liability to a certain sum for each animal, and exclude injuries to the animals in consequence of their intrinsic defects, or of delay. Squire v. New York C. E. E, 98 239. 173. There is no legal presumption, that a passenger on a railroad has read a notice, limit- ing the company's liability for baggage, printed on the back of. his baggage check, although the check has on its face the words, "look on the back." ' Malone v. Boston & W. E. E., (12 G.) 78 388. 174. Nor that he has read a like notice on the back of his passage ticket; but it is for the jury to say whether he had read it before commence- ing his journey. Brown «. Eastern E. E., (11 C.) 65 97. 175. Where a carrier by sea enters into aeon- tract of affreightment, without any special clause as to the extent of his liability, and after- wards, in the usual course of business, signs bills of lading with a clause, "the dangers of the seas only excepted," this clause does not make him liable for tre act of the public enemy. Gage «. Tirrell, (9 A.) 91 299. 176. Where a carrier signs an absolute en- gagement to ship and transport goods from one seaport to another, without any exception as to perils of the sea, or otherwise, he is liable lor damage by perils of the sea, or by breaking oi the tackle used to load the goods upon tne lighters. Knowles v. Dabney, 105 437. 177. A common carrier, who receives prom- issory notes, upon his written agreement to CARRIES,, IV; (1), (2). 185 transport them, and get them renewed, or re- turn them, is liable on his contiact to return them; and it is no defence that the indorser, to whom he delivered them for examination, prior to renewal, refused to surrender them to him. Wareham Bk. v. Burt, (5 A.) 87 113. IV. Homicide by Negligence. <1.) Action for homicide. [.See, also, Neg licence. III, (1). As to the right of an execntor or administrator to recover against one causing the decedent's death by his negligence, see references under tit. Death. See, also, St. 1883, Ch. 243, as to a railroad company's liability for its em- ployee's death.] 178. In an action under St. 1881, Ch. 199, §§ 3, 5; P. S., Ch. 73, § 6, against a carrier for loss of life; it is not sufficient for the defendant to show want of ordinary care on the part of the decedent. The whole question is for the jury. Copley v. New Haven & N. Co., 136 6. 179. The statute does not take away the remedy by indictment; it superadds a new remedy by civil action. It does not apply to a loss of life, before it went into effect. Kelleya. Boston &M.R.R., 135 448. 180. Under P. S., Ch. 112, § 212, one who gets upon a railroad train, after it has started, does not become a " passenger " until he reaches a place of safety in a car; and no action lies, if he is killed by falling from the platform. Merrill v. Eastern R. R., 139 238. 181. Running the train at the rate of 30 miles an hour on a straight track, is not gross negli- gence, within that provision. Merrill ». Eastern Railroad, 139 238. 182. It is no defence to an action, under that provision, that" the deceased was not in the ex- ercise of due care. Merrill ». Eastern Railroad, 139 252. 183. And it is not necessary for the plaintiff to show that the deceased was not negligent. McKimble v. Boston & M. R. R., 139 542. 184. For rulings upon questions of conflict ing evidence respecting negligence, in an action under that provision, see Merrill v. Eastern R. R., 139 252. 185. In an action under that provision, it was held, that if a passenger having a ticket leaves the train at an intermediate station, it cannot be assumed, as matter of law, that he was not travelling upon that ticket, or intended to evade the payment of his fare; and that a passenger continues to be such, while rightfully leaving the train, and the station where it has stopped. McKimble v. Boston & M. Railroad, 139 542. 186. For rulings in a case where the pas- senger was killed, while leaving a car at the station on the wrong side, by a freight car and engine on another track, see McKimble v. Boston & M. R. H., 139 542; McKimble v. Boston & M. R. R 141 463. (2.) Indictment. [See, also, Indictment, VIII, (39); VIII, (60).] 187. Under G. S., Ch. 63, § 97, it was no de- fence that the person killed, by the gross negli- VOL. I— 24 gence cf the servants of the corporation, was a season ticket-holder, whose ticket expressly pro- vided that the company assumed no liability for any personal injury. Comm. v. Vermont &M.R. R., 108 7. 188. A person, who, in consideration of his supplying passengers with iced water, and pay- ment of a certain sum, received a quarterly season ticket, with permission to sell popped corn on the cars, was a passenger under that statute. Comm. ^.Vermont &M.R.R., 108 7. 189. For various other rulings, under St. 1840, Ch. 80; G. S., Ch. 160, 8 34; G. S., Ch. 63, § 97; St. 1864, Ch. 229, § 37; and St. 1871, Ch. 352; now superseded by St. 1881,' Ch. 199, and St. 1874, Ch. 372, § 163; P. S., Ch. 73, § 6, and Ch. 112, § 212, see Comm. v. Boston & W. R. R., (11 C 65 512; Comm. v. Eastern R. R., (5 G 71 473; Comm. ». Sanford, (12 G.) 78 174; Comm. ». East Boston Ferry, (13 A.) 95 589; Comm. v. Metropolitan R. R., 107 236; Comm. v. Vermont & M. R. R., 108 7; Comm. v. Fitchburg R. R., 120 372; Comm. v. Boston & A. R. R., 121 36; Comm. ®. Fitchburg R. R. 126 472; Comm. ». Coburn, 132 555. 190. St 1874, Ch. 372, § 163; P. S., Ch. 112, § 212, applies to a case where a railroad com- pany is using a private track, reasonably inci- dent to its lawful business, by permission of the owner. Comm. «. Boston & L. R. R., 126 61. 191. An indictment under that statute cannot be sustained, if the negligence was that of the servants of the company, and not of the com- pany, although it occurred in the course of their employment. Comm. v. "Boston & M. R. R., 133 383. 192. Under that statute, a person who leaves the car, after it has passed his station and is moving slowly, is not a passenger. Comm. v. Boston & M. R. R., 129 500. 193. The want, on the passenger's part, of due care is no defence under that statute. Comm. v. Boston & M. R. R., 129 500; Comm. v. Boston & L. R. R., 134 211. 194. St. 1874, Ch. 372, § 164; P. S., Ch. 112, | 213, applies to an injury which results in death. Comm. «. Boston & M. R. R. , 1 33 383. 195. As to the proper allegations under that statute, in an indictment for loss of life through the neglect of the servants of the corporation, see Comm. v. Bcston & M. R. R., 133 383; and cases cited in Indictment, VIH, (60). 196. An indictment of the conductor of a railway train, for not sending forward a signal to warn a coming train, whose track he crossed, and leaving the switch open, all being contrary to the rules of the corporation; by means of which the coming train was thrown from the track, and a passenger killed, must aver that he knew of the approach of the coming train; and that fact must be proved. Comm. v. Hartwell, 128 415. 186 CASE— CASE STATED. Case, action on the. [See, also. Action ; Pleading ; Trespass. This action is now simply an action of tort, ■which in- cludes, with others, trespass on the case. G. S., Ch. 129, § 1 : P. S., Ch. 167, § 1. . The nice distinctions, for- merly taken between trespass and case, have there- fore became immaterial.] 1. Case lies for a neglect of official or corpor- ate duty. Riddle ». Locks and Canals, 7 169; Lincoln v. Hapgood, 11 350. 2. And against an attaching creditor after abatement. Hayden v. Shed, 11 500. 3. And against one whose servant has care- lessly driven his carriage against the plaintiff. Barnes v. Hurd, 1 1 57. 4. And against a plaintiff by a defendant arrested, where the former fails to enter the ac- tion. Shaw ».. Reed, 16 450. 5. And against one who prevented a voyage of the plaintiffs vessel, by wounding the master. Adams ». Hemmenway, 1 145. 6. And for ill usage of a hired horse. Rotch ». Hawes, (12 P.) 29 136. 7. And by a lessor of land against a stranger, for an injury to the freehold, although held by a tenant at will. Lienow v. Ritchie, (8 P.) 25 235; French v. Fnller, (23 P.) 40 104. 8. And by the general owner of a chattel, for attaching it as the property of one in possession, under a contact of purchase. Ayer v, Bartlett, (9 P.) 26 156. 9. And by a mortgagee of a chattel, for at- taching it against the mortgagor. Forbes v. Parker, (16 P.) 33 462. 10. And by a mortgagee of realty, for forcible entiy, and removal of fixtures. Gooding v. Shea, 103 360. 11. And by the lessor of a water privilege against his tenant, for using an excessive quan- tity of water. Biglow v. Battle, 15 313. 12. And by a principal against his agent, for neglect to pay over money collected. Ashley v. Root, (4 A.) 86 504. 13. Case does not lie to recover back usurious interest Wiley v. Yale, (1 Met.) 42 553. 14. Nor against assessors for an improper as- sessment. Agry v. Young, 11 220; Freeman 11. Kenney, (15 P.) 32 44. 15. Nor for driving a hired horse beyond the agreed distance. Wheelock «. Wheelwright, 5 104. 16. Nor against a sheriff for the tortious act of his deputy. Grinncll v. Phillips, 1 530; Campbell *. Phelps, 17 244. Case stated. 1. By submitting a cause, upon agreed facts, the parties waive all questions of pleading, and as to the form of the action; and the cause is to be determined upon the merits, as if presented in any form of action. Matters which can be raised only by a plea in abatement are not open unless specially reserved. Haven v. Foster, (9 P.) 26 112; Ells- worth v. Brewer, (11 P.) 28 316; Scud- der v. Worster, (11 C.) 65 573; Russell v. Loring, (3 A.) 85 121; Miner v. Col- burn, (4 A.) 86 136; Cushing v. Ken- field, (5 A.) 87 307; Esty v. Currier 98 500; Brettun v. Fox, 100 234*; West Roxbury v. Minot, 114 546; Boxford Rel. Soc. ». Harriman, 125 321; Smith®. Carney, 127 179; Cleave- land «. Boston F. C. Sav. Bk., 129 27- Fay v. Duggan, 135 242. 2. And where the court has no jurisdiction of that form of action, but has jurisdiction of the subject in another form, the court will amend the writ. Merrill «. Bullock, 105 486. See, also, Folger v. Columbian Ins. Co. 99 267. 3. This rule is not varied by the fact that the pleadings are made part of the case. Kimball v. Preston, (2 G.) 68 567; Esty v. Currier, 98 500. 4. Where, however, by the terms of the case, the plaintiff's right to recover is limited to the pleadings, the defendant must have judgment, unless the plaintiff can recover upon the par- ticular declaration. Comm. v. Worcester & N. R. R., 124= 561. 5. And where all the parties, necessary to a suit in equity, are not before the court, an ob- jection that the remedy is in equity only must prevail. McRae v. Locke, 114 96. 6. The court will not entertain a question of law, not arising cut of the facts stated in the Smith v. Cudworth, (24 P.) 41 196. 7. In an equity cause, the court will not give an opinion whether the facts stated are a de- fence to a suit at law, although the parties have agreed to submit the question, and abide by the decision. Stone v. Hobart, (8 P.) 25 464. 8. Although a case stated contains a clause, to the effect that the facts admitted are not to be used upon " the trial of this or any other cause," the court will nevertheless pass upon the questions of law. Campbell v Talbot, 132 174. 9. A point, which does not appear to have been intended to be raised in the superior court, upon an agreed statement of facts, cannot be raised on appeal. Johnson v. Stewart, (11 G.) 77 181; Fitzsimmons t>. Carroll, 128 401. 10. An appeal, not a writ of error, lies to re- view a judgment upon a case stated. Alfred «. Saco, 7 380; Carroll e. Richardson, 9 329; Gray v. Storer, 10 ' 163; Wellington «. Stratton. 11 394; Hovey v. Crane, (10 P.) 27 440. [See, also. Appeal - Error, "i 11. A case stated in an action at law, cannot be heard or reserved by a single justice, but is within the exclusive jurisdiction of the full court. Mass. Nat Bk. v. Bullock, 120 86. CASE STATED— CERTIOEAEI, I. 187 12. Agreeing in a case stated to a fact, which a party would have been estopped to allege or deny, is a waiver of the estoppel. Boston*. Tileston, 11 468; Wheelock e. Henshaw, (19 P.) 36 341; Wolcott e. Ely, (2 A.) 84 338; Comm. v. Greene^ (13 A.) 95 251. See, however, post, art. 26. 13. Where the parties agreed that a default should be entered, subject to the opinion of the court, and that judgment should be given for the plaintiff for one of two sums, the court nevertheless directed a new trial. Shearer v. Jewett, (14 P.) 31 232. 14. A statement in a case that a demand was made, means a demand in accordance with the statute, if there is such a statute. Jennison «. Eoxbury, (9 G.) 75 32. 15. In an equity cause, upon a case stated, the answer will be taken as true, only as far as it is supported by the facts stated in the case. Taunton «. Taylor, 116 254. 16. The court will not act upon a case stated, by which only a preliminary question, not the merits, will be decided. Austin ■». "Wilson, 7 205. 17. Nor will it pass upon a mere speculative question. Capen v. Washington Ins. Co., (12 C.) 66 517. 18. If it appears that through inadvertence the facts are not sufficiently stated, a case stated will be discharged, and the cause remanded to the court below for further proceedings. Old Colony Railroad e. Wilder, 137 536. See, also, Gregory v. Pierce, (4 Met.) 45 478, Merriam v. Merriam, (6C.) 60 91; Lefavour v. Homan, (3 A.) 85 354; Morse v. Mason, 103 560; Meserve v. Andrews, 104 360. 19. And where the case sets forth testimony, instead of facts, the case will be so remanded. Powers v. Provident Inst'n, 122 443. See, however, Gorham v Stearns, (1 Met.) 42 866. 20. A party may be allowed on motion to have the agreed statement discharged, and be- come nonsuit, after judgment and an appeal, and even after judgment on the appeal. Lowell v. Merrimack M. Co., (11 G.) 77 382; West *>. Piatt, 124 353. 21. And if an auditor's report, submitted as an agreed statement, is not sufficient to enable the court to decide whether he rightly ruled upon the law, the agreed statement will be dis- charged. Meserve v. Andrews, 104 360. 22. So it will be discharged, where it calls upon the court to decide collaterally a question of public rights. Loring v. Bridge, 9 124. 23. But not because a foreign law is not set out as a fact, as the court can examine the stat- utes and judicial decisions to ascertain it. Chase «. Alliance Ins. Co., (9 A.) 91 311. 24._ If the case does not fix the damages, or provide for the assessment thereof, judgment for the plaintiff will be for nominal damages only. McAneany v. Jewett, (10 A.) 92 151. 25. Upon a case stated, inferences of fact can- not be drawn, unless, as matter of law, they are necessary inferences. Mayhew «. Durfee. 138 584. 26. Where a case stated set forth an officer's return, and facts inconsistent with the return, it was held that the conclusiveness of the return was not waived by the matters so stated. Lowery v. Caldwell, 139 88. Cattle. [See Animal, etc.; Carreer, I ; Estrat ; Fence ; Negligence ; Railroad, IV, (i) ; Town and Cut, IMS)."- Cause of action. [See Action.] Caveat emptor. [See Sale, III ; Vendor and Vendee, II.] Cemetery. [See Burial, etc.] Certiorari. I. Where it lies. II. What Questions mat be baised. III. Answer, ok Return. IV. Other Proceedings; Judgment. [See, also, generally. Appeal; Error; Excep- tion. See, also, the title of particular subjects, viz. : Bastardy; Highway; Mill and Mill-dam; Town and City, etc.] I. Where it lies. 1. A writ of certiorari lies only to correct the errors of inferior courts, or officers acting ju- dicially, in proceedings not according to the course of the common law. It does not lie to revise the acts of a court, whose procedure is according to the course of the common law' and whose errors can be corrected by appeal, by exception, or by a writ of error. G. S., Ch. 145, § 8; P. S., Ch. 186, § 7. Lynch v. Crosbv, 134 313. See, also, Comm. v. Bigelow, (3 P.) 20 31 ; In re Cooke, (15 P.) 32 234; In re Randall, (11 A.) 93 472; Farmington R. W. P. Co. v. Berkshire Com'rs, 112 206; Tewksbury v. Middlesex Com'rs, 117 563; Locke v. Lexington, 122 290. 2. It lies to correct erroneous proceedings of county commissioners in laying out or altering ways; on applications to abate taxes; in award- ing railroad damages; or regulating railroad crossings ; and proceedings of municipal authori- ties in laying out or opening public streets, al tering grades, or granting licenses. Comm. v Coombs, 2 489; Parts v. Boston, (8 P.) 25 218; Comm. •». West 188 CERTIORARI, I; II; III. B. Bridge, (13 P.) 30 195; Gibbs v. Hampden Com'rs, (19 P.) 36 298; CharlestownBr. R. R. v. Middlesex Com'rs, (7 Met.) 48 78; New Marlboro' «. Berk- shire Com'rs, (9 Met.) 50 433; Dwight v. Springfield. (4 G.) 70 107; Charles River B. R. R. v. Norfolk Com'rs, (7 G.) 73 389; Mendon v. Worcester Com'rs, (2 A.) 84 463; Boston & A. R. R i>. Hampden Com'rs, 116 73; Powers ». Springfield, 116 84; Noyes ». Springfield, 116 87; Warner ». Franklin County, 131 348. 3. Qu., whether it lies to review the proceed- ings for a sheriff's jury under the highway act. Warner*. Franklin County, 131 348. 4. It does not lie, where there is an adequate remedy by action. Robbins v. Lexington, (8 C.) 62 292, Hooper v. Bridgewater, 102 512; Ex parte Dunbar, 14 393. 5. It does not lie to the probate court. Peters v. Peters, (8 C.) 62 529. 6. It does not lie, where the matter is sub- mitted by statute to the judgment or discretion of the inferior court. Ex parte Hayward, (10 P.) 27 358. 7. It lies to quash an erroneous ruling in the matter of costs only, allowing the proceedings to stand in all other respects. Young «. Blaisdell, 138 344. 8. It lies to the common pleas to revise pro- ceedings under the mill acts, or in a prosecution for violating the law of the road. Vandusen ». Comstock, 3 184; Clark v. Comm., (4 P.) 21 125; Palmer Co. ■». Ferrill, (17 P.) 34 58; Barnard v. Fitch, (7 Met.) 48 605. 9. As to proceedings in a bastardy case, be- fore exceptions would lie, see Drowne v. Stimpson, 2 445; Gile v. Moore, (2 P.) 19 386. 10. It lies to quash a conviction by a justice of the peace, although an appeal lies also. Pratt v. Hall, 4 239; Clapp v. Wat- son, (8 P.) 25 449; Stratton v. Comm., (10 Met.) 51 217. 11. Upon a writ of error in an action, or in a criminal prosecution upon a trial, or where the question arises whether there has been a dimi- nution of a record, the court will grant a cer- tiorari, as ancillary to the proceedings, com- manding the tribunal, having custody of the record, to certify the entire record. Andrews fl.Bosworth, 3 223; Thatcher v. Miller, 11 413; Comm. v. Roby, (12 P.) 29 496. LSee, further, on this point, Error, II; and post, art. 33.] II. What Questions mat be raised 12. A writ of certiorari lies only to correct errors of law. Ex parte Hayward, (10 P.) 27 358; Ex parte Nightingale, (11 P.) 28 168; Gibbs «. Hampden Com'rs, (19 P.) 36 298; Cousins?) Cowing, (23 P.) 40 208; Stratton v. Comm., (10 Met.) 51 217; Chicopee v. Hampden Com'rs, (16 G.) 82 88; Lowell e. Middlesex Com'rs, (6 A.) 88 131; Farmington R. W. P. Co. v. Berkshire Com'rs, 112 206. 13. The granting of the writ retts in the dis- cretion of the court. Drowne v. Stimpson, 2 441; Ex parte Adams, (4 P.) 21 25; Farmington B. W. P. Co. i). Berkshire Com'rs, 112 206. 14. The petitioner must satisfy the court that substantial justice requires the writ. After it is granted and the record certified, the court is bound to determine, upon the whole ncord, whether the proceedings are legal or erroneous! Comm. ■». Sheldon, 3 188; Ex pwrte Weston, 11 417; Lees ». Childs, 17 351; Freetown t>. Bristol Com'rs, (9 P.) 26 46; Rutland v. Worcester Com'rs, (20 P:) 37 71; Gleason *. Sloper, (24 P.) 41 181; Stone ». Boston, (2 Met.) 43 220; Marblehead v. Essex Com'rs, (5 6.) 71 451; Pickford v. Lynn, 98 491; Farmington R. W. P. Co. v. Berkshire Com'rs, 112 206. 15. Upon a certiorari to quash proceedings in laying out a way, or licensing a ferry, the regu- larity of the proceedings only is in question; not the decision as to the necessity, etc. Comm. ■». Westborough, 3 406; Comm. v. Roxbury, 8 457; Ex parte Fay, (15 P.) 32 243. 16. An error in admitting testimony, or other error in the course of the proceedings, not affecting jurisdiction, is not a reason for quash- ing the judgment below, if, upon the whole, the petitioner was not substantially prejudiced. Cobb v. Lucas, (15 P.) 32 1; Gleason ». Sloper, (24 P.) 41 181; Monterey ». Berkshire Com'rs, (7 C.) 61 394; Men- don*. Worcester Com'rs, (5 A.) 87 13. 17. Nor will the proceedings be quashed, if very mischievous consequences will ensue, and the parties cannot be placed in statu quo. Rutland v. Worcester Com'rs, (20 P.) 37 71. 18. Nor for a misprision of the clerk, which the court below may correct. Ex parte Weston, 1 1 417. 19. Nor for excessive costs taxed under the mill acts. Ex parte Weston, 11 417. 20. Objections, not of a jurisdictional char- acter, not taken below, cannot be raised on (jST't'LOT'O/T'L Cousins v. Cowing, (23 P.) 40 208; Stratton v. Comm., (10 Met.) 51 217; Plymouth «. Plymouth Com'rs, (16 G.) 82 341. ■HI. Answer ok Return. 21. The answer of a tribunal, to which a certiorari is issued, if it states any facts, is in the nature, not of an allegation of a party, but of an official return; it must T)e signed by all the members of the tribunal; but an answer in the nature of a demurrer to the petition maybe filed by attorney. , Worcester &N. R. R. v. Railroad Com rs, 118 561. See, also, Plymouth v. .Ply- mouth Com'rs, (16 G.) 82 341; Chase v. Springfield, 119 556. 22. The answer should state facts, and not matters which the respondents deem will occur; but such an irregularity is not ground for grant, ing the writ, if, after striking out such aver. CEETIOEAEI, I"V— CHAMPEETY. 189 ments, the answer discloses sufficient grounds for dismissing the petition. Fairbanks v. Fitchburg, 132 42. 23. The tribunal, besides its findings, which cannot be disputed, if it had jurisdiction, may also allege and prove extrinsic facts, tending to show that substantial justice does not require the quashing cf the proceedings; and this ex- trinsic evidence may be rebutted by the petitioner Farmington R. W P. Co. v. Berkshire Com'rs, 112 206; Tewksbury v. Mid- dlesex Com'rs, 117 563; Fairbanks v. Fitchburg, 132 42. 24. Except as to such extrinsic matters, the matters of fact stated in the answer are con- clusive upon the petitioner. Wilbraham v. Hampden Com'rs, (11 P.) 28 322; Rutland ». Worcester Com'rs, (20 P.) 37 71; Gleason v. Sloper, (24 P.) 41 181; Mendon v. Worcester Com'rs, (5 A.) 87 13; Charlestown v. Middlesex Com'rs, 109 270. rv. Other Proceedings; Judgment. 25. A writ of certiora/ri will be quashed where the record and jurisdiction have been transferred by statute to a different tribunal. Comm. v. Winthrop, 10 177. 26. ,Upon a petition for a certiorari, notice may, in the discretion of the court, be ordered to a person adversely interested; but notice to show cause against the issuing of the writ must be given to the tribunal, to which, if the writ is granted, it will be addressed. Comm. •». Peters, 3 229;- Comm. v. Downing, 6 72; Worcester & N. R. R. v. Railroad Com'rs, 118 561. 27. The notice is not a supersedeas, but all proceedings subsequent thereto are at the peril of the tribunal to which it is given. Me parte Adams, (10 P.) 27 273. 28. Under St. 1873, Ch. 355; P. S., Ch. 186, § 8, the writ may be issued in vacation, and be made returnable forthwith. Boston & A. R. R. v. Hampden Com'rs, 116 73. 29. If the petition is reserved by a single jus- tice for the consideration of the full court, upon the petition and answer, and the report of cer- tain evidence, the allegations of fact in the answer are to be taken as true, except as they are controlled by the evidence reported. Dickinson ». Worcester, 138 555. 30. Where the cause was brought forward in the court below by entering continuances, and entering up judgment, it will be presumed, in support of the judgment, that this was done on notice to the exceptant. Comm. ». Moore, (3 P.) 20 194. 31. It is not necessary that there should be any special assignment of errors in the record. Comm. v. Sheldon, 3 188. 32. Where, pending a certiorari by a turn- pike company to review the assessment of land damages, the company, in order to save a for- feiture of its charter, paid the sum awarded, and entered upon the lanl ; the court refused to quash the certiorari, and held that if the re- respondent was adjudged to be entitled to less, flie difference would be refunded. Comm, v, Hall, (8 P.) 25 440. 33. If the certiorari calls for a return of all the proceedings, and a diminution is alleged, a new certiorari may be issued; but if part only is directed to be returned, the certiorari will be quashed, as improvidently issued, for the court will act only upon the whole record. Comm. n. New Milford, 4 446. 34. The attorney for the party interested in sustaining the adjudication below, may prop- erly appear, in the name and by permission of the respondent, to oppose the petiiion. Worcester &N. R. R. v. Railroad Com'rs, 118 561. 35. Since G. S., Ch. 145, § 9; P. S., Ch. 186, § 9, the supreme judicial court may render such a judgment as ought to have bc.en rendered below, and may direct further proceedings be- low to correct the error. Lowell i). Middlesex Com'rs, (6 A.) 88 131; Haverhill Bridge v. Essex Com'rs, 103 120. 86. Before the statute, although the court could only affirm or reverse, it might have affirmed part and reversed part, in either civil or a criminal cause, if the parts were independ- ent; otherwise not. Comm. v. Carpenter, 3 268; Comm. ®. Blue Hill Turnpike, 5 420; Comm. v. Derby, 13 433; Comm. v. West Bos- ton Bridge, (13 P ) 30 195; Comm. v. Vermont & M. R. R., (4 G.) 70 22. 37. Before G. S., Ch. 145, § 10; P. S., Ch. 186, § 10, neither party could have costs on a certiorari. Ex parte Cushman, 4 565; Comm. v. Ellis, 11 462. Challenge. [To juror, see Jury, II.l Champerty and maintenance. [See, also. Attorney at Law.] 1. Champerty is the unlawful maintenance of a suit, in consideration of some bargain to have part of the thing in dispute, or some profit out of it. Scott i>. Harmon, 109 237. See, also, Thurston v. Percival, (1 P.) 18 415; Lathrop v. Amherst Bk., (9 Met.) 50 489. 2. SemMe, that it is an essential part of the offence that the champertor is to carry on the party's suit at his own expense. Scott ». Harmon, 109 237. But see Lathrop «. Amherst Bk., (9 Met.) 50 489. 3. The important element, deemed prejudi- cial to the public repose, and without which the agreement is not illegal, is that the cham- pertor's pay is dependent on his success. Thurston v. Percival, (1 P.) 18 415; Tapleye. Coffin, (12 G.) 78 420; Scott v. Harmon, 109 237. 4. Champerty is an offence at common law, and is presumed to be an offence in another Thurston v. Percival, (1 P.) 18 415; 190 CHAMPERTY— CHAKITY, I. Lathrop v. Amherst Bk., (9 Met.) 50 489; Ackert v. Barker, 131 436. 5. Maintenance is also a common law offence; the statute, 32 H. VIII., Ch. 9, only affirmed the common law. Swett v. Poor, 11 549; Brinley v. Whiting, (5 P.) 22 348. 6. An agreement between an attorney and his client, to allow the former the first fifty dollars collected in the suit, is not champertous, either at common law or under the statute; and is no defence to the attorney's action for his services. Scott v: Harmon, 109 237. 7. An agreement by an attorney with an agent, to pay the agent a portion of his fees, if he would employ the attorney to collect de- mands due his principal, was prohibited by the statute of 1811, substantially like the present statute. Allen v. Hawks, (13 P.) 30 79. 8. Purchasing by one, not an attorney, nego- tiable notes, and commencing suits upon tbem, with intent to harass and oppress the maker, are but the pursuit of one's right, and not cham- perty or maintenance. Bragg «. Baymond, (11 C.) 65 274. 9. An agreement between an attorney and his client, that the former shall have for com- pensation a percentage on the money collected, and that, if he does not recover, the client shall pay only his expenses, is champertous; and the attorney cannot maintain an action thereon. Lathrop v. Amherst Bk., (9 Met.) 50 489. 10. And where such an agreement was ntade to receive one half of the sum collected, and nothing in case of failure, the client may main- tain an action against the attorney for the whole amount collected, less costs paid by the attorney. Ackert v. Barker, 131 136. 11. A champertous agreement, for future services, does not prevent the attorney from re- covering for services rendered in the same matter, before the agreement. Thurston v. Percival, (1 P.) 18 415; Tapley «. Coffin, (12 G.) 78 420. 12. An agreement is not champertous, where the person undertaking to prosecute has an interest in the proposed litigation, although re- mote and contingent. Call v. Calef, (13 Met.) 54 362; Call v. Calef, (4 C.) 58 388; Williams v. Fowle, 132 385. 13. Where a person purchases a dormant, but supposed to be a paramount, title to land, iu possession of another, who does not know that he has an available interest, and bargains with him for a deed, and the power to. sue to remove the occupant, this is maintenance, and an action for the breach of the agreement will not lie. Swett v. Poor, 1 1 549. See, also, per Parsons, C. J., in Wolcot.© Knight, 6 418; and Everenden v. Beaumont, 7 76. 14. An assignment by a client to his attorney of one half of the client's interest, authorizing him to prosecute the claim and collect the amount, and providing that the client should be saved harmless, if the suit was unsuccessful, and, if it was successful, that the sum collected, less expenses, should be divided equally, is champertous. But the parties are not in pari icto, and the client may maintain a bill in equity to cancel it. Belding v. Smythe, 138 530. Chancery. [See Equity Jurisdiction; Equity Pleadim and Practice.] Charge. [See Exception, I ; II; New Trial, II, (2); Trial III, (1).] Charitable association. [See Benevolent Association.] Charity and charitable trust. I. Definitions and general Rules. II. Validity and Effect; Trustee. III. Administration; cy-pres; Visitor. IV. Interpretation; Proceedings to pro- cure Interpretation. V. Legal and equitable Proceedings re- lating to Charitles. VI. Liability of a charitable Institu- tion to Inmates and others. [See, also. Devise and Bequest ; Parish [Per- petuity ; Religious Association ; Trust; will. For exemption from taxation, see Taxation, II, («•] I. Definitions and general Rules. 1. A charity is a gift to be applied, consis- tently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds and hearts under the influence of education or religion; by relieving their bodies from disease, suffering, or constraint; or by as- sisting them to establish themselves in life; or by erecting or maintaining public buildings or works; or otherwise lessening the burdens of government. Jackson*. Phillips, (14 A.) 96 539. 2. The statute, 43 Eliz., Ch. 4, so far as it recognizes, defines, or indicates what are chari- table uses, is a part of our common law. Earle «. Wood, (8 C.) 62 430; Bates v. Bates, 134 110. See, also, Bartlet v. King, 12 537; Going v. Emery, (16 P.) 33 107; Sandersons. White, (18 P. 35 328; Burbank v. Whitney, (24 P. 41 146; Washburn ». Sewall, (9 Met) 50 280; Dexter *. Gardner, (7 A.) »» 243; Jackson®. Phillips, (14 A.) 96 539. 3. But any purpose is charitable, which is within the principle and reason of the statute, although not expressly named in it. Jackson «. Phillips, (14 A.) 96 539. 4. The word "benevolent, 1 * standing alone, in the description of the purpose of the gin, CHARITY AND CHARITABLE TRUST, I; H. 191 does not create a public charity; but if used in connection with other words, indicating an in- tent to limit the gift to a charitable purpose, it is equivalent to "charitable." Chamberlain v. Stearns, 111 267. See. also, Saltonstall v. Sanders, (11 A.) 93 446; Suter v. Hilliard, 132 412. 5. So the words "philosophical or philan- thropic," in connection with other words, will make a good charitable bequest. Kotch v. Emerson, 105 431. 6. A gift to promote education, without any reference to the poor, is a charity, although ac- companied with conditions as to the mode of education. American Acad., etc. ». Harvard College, (12 G.) 78 582; Tainter «. Clark, (5 A.) 87 66. 7. A bequest " for my funeral expenses," and the residue "for charitable purposes, masses, etc.," is a good charitable bequest; "masses" are charitable purposes, and the "etc." will be construed to mean other charitable purposes. In re Schouler, 134 426. 8. A devise " to the missionary cause of the Methodist Episcopal church," is a good chari- table devise, and sufficiently definite. Missionary Soc, etc., i>. Chapman, 128 285. 9. A bequest for the permanent care of a pri- vate tomb, burial place, or monument, is not for a public charity. Bates v. Bates, 134 110. 10. Nor is a bequest to procure a change in the laws, as to enable women to vote, or to abolish slavery; but a bequest to do certain acts to create a public sentiment, that will put an end to slavery, was a good charitable bequest before slavery was abolished. Jackson 0. Phillips, (14 A.) 96 539. 11. A corporation, which devotes its entire funds to the maintenance of indigent persons, the care and relief of the sick, etc., is none the less a public charity, because a payment for admission is required from some, or even all, of its inmates. Gooch v. Aged F. R. Assoc, 109 558; McDonald 0. Mass. Gen. Hospital, 120 432. 12. For other rulings, as to what constitutes and what does not constitute a public charitable purpose, see Bartlet v. King, 12 537; Hadley v. Hopkins Acad. (14 P.) 31 240; Going i\ Emery, (16 P.) 33 107; Sohier 0. St. Paul's Church, (13 Met.) 53 250; Brown v. Kelsey, (2 C.) 56 243; Parker ». May, (5 C.) 59 336; Earle v. "Wood, (8 C.) 62 430; King 0. Parker, (9 C.) 63 71; Atty.-Gen'l v. Federal St. M. H., (3 G.) 69 1; North Adams Univ. Soc. v. Fitch, (8G.) 74 421; Atty.-Gen'l B.Merrimack Man. Co., (14 G.) 80 586; Dexter «. Gardner, (7 A.) 89 243;Drury».Natick, (10 A.) 92 169; Atty.-Gen'l v. Old South Soc. , (13 A.) 95 474; Fairbanks r. Lam- son, 99 533, Old South Soc. 0. Crocker, 119 1; Fellows v. Miner, J. 19 541; Boxford Rel. Soc. v. Harriman, 125 321; Sohier ». Burr, 127 221; Nichols Allen, 130 211. II. Validity and Effect; Trustee. 13. A bequest or devise to a public charity is valid, although the specific objects of the char- ity are not named, but are left to the discretion of tli6 trustee Saltonstall v. Sanders, (11 A.) 93 446; In re Schouler, 134 426. See, also, 3rown v. Kelsey, (2 C.) 56 243; Jack- son v. Phillips, (14 A.) 96 539; Nichols ii. Allen, 130 211; Hinckley ». Thatcher, 139 477; White v. Ditson, 140 351. 14. It is not necessary that the word " trust " or "trustee" should be used; it suffices that the terms of the bequest or devise clearly indi- cate, that the person was to take the property, not for his own use, but to be disposed of for the purpose indicated. Nichols 0. Allen, 130 211; In re Schouler, 134 426; White v. Ditson, 140 351. 15. Where property is devised to two mis- sionary societies, neither of which is accurately named, extiinsic evidence is admissible for the purpose of identifying the societies intended. Hinckley 0. Thatcher, 139 477. 16. Where no trustee is named, or the trustee dies before the testator, the executor or the heir takes in trust for the charity, or a court of equity will supply a trustee. Bartlett 0. Nye, (4 Met.) 45 378; Washburn v. Sewall, (9 Met.) 50 280; Brown «. Kelsey, (2 C.) 56 243; Wins- low 0. Cummings, (3 C.) 57 358; Har- vard College «. Theol. Ed. Soc, (3 G.) 69 280; North Adams Univ. Soc v. Fitch, (8 G.) 74 421; Missionary Soc, etc., v. Chapman, 128 265; In re Schouler, 134 426. 17. A court of equity will also supply a trus- tee, where the trustee refuses to accept, or per- verts the fund to other uses, or dies; or, if a corporation trustee is dissolved, after the trust has taken effect; or where the trust is to be exe- cuted out of the State. Hadley 0. Hopkins Acad. (14 P.) 31 240; Sanderson 0. White, (18 P.) 35 328; Washburn 0. Sewall, (9 Met.) 50 280; Bliss v. Am. Bible Soc, (2 A.) 84 334; Fellows 0. Miner, 119 541. 18. The charitable devise or bequest of a resi- dent of this Commonwealth is valid, although the beneficiaries may be in a state, whtre such a devise or bequest is void; and the fact that it cannot take effect immediately, for want of proper objects, or trustees, or enabling acts, in this or another state, will not defeat it. Fellows 0. Miner, 119 541. See, also, Bartlet 11. King, 12 537; Sanderson 0. White, (18 P.) 35 328; Washburn v. Sewall, (9 Met.) 50 280; Webb 0. Neal, (5 A.) 87 575; Odell v. Odell, (10 A.) 92 1; Smith Charities v. Northampton, (10 A.) 92 498; Saltonstall 0. Sanders, (11 A.) 93 446; Baker 0. Clarke Inst'n, 110 88; Sohier 0. Burr, 127 221. 19. A corporation, which has once accepted a charitable gift within its powers, cannot after- wards renounce it. American Academy, etc., 0. Harvard College, (12 G.) 78 582; Drury 0. Natick, (10 A.) 92 169. 192 CHAEITY AND CHARITABLE TRUST, II; III. 20. A charitable trust is not extinguished by delay in executing it; but the trustee may be compelled to execute it. Tainter v Clark, (5 A.) 87 66. 21. A charitable bequest to an unincorporated association; to the trustees of an academy for the benefit of a theological school; to a foreign corporation; or a town, is valid. Bartlet 1>. King, 12 537; Phillips Academy v. King, 12 546; Burbank b. Whitney, (24 P.) 41 146; Bartlett v. Nye, (4 Met.) 45 378; Tucker ». Sea- men's Aid Soc, (7 Met.) 48 188; Wash- bum v. Sewall, (9 Met.) 50 280; King *. Parker, (90.) 63 71;Drury». Natick, (10 A.) 92 169. 22. A devise or bequest in remainder, to such charities as shall be deemed most useful, by the executor or administrator of the life-tenant, is valid. Wells v. Doane, (3 G.) 69 201. 23. A trust, which, by its terms, may be ap- plied to objects which are not charitable in the legal sense, and to persons not defined by name or class, is too indefinite to be carried out; and oral evidence of the testator's declarations to the trustee, is inadmissible to establish it. Chamberlain v. Stearns, 111 267; Nichols «. Allen, 130 211; Olliffe v. Wells, 130 221. 24. The statute of limitations does not apply to a bill to compel a trustee of a charity to ac- count for funds misapplied; but an application in good faith, continued for many yeaTS, will not be lightly disturbed. , Atty.-Gen'l ». Old South Soc, (13 A.) 95 474. 25. A public or charitable trust is an excep- tion to the rule, that property eannot be made inalienable beyond a life in being, and twenty- one years afterwards; such a trust may be per- petual in its duration. King v. Parker, (9 C.) 63 71; Dexter v. Gardner, (7 A.) 89 243; Odell v. . Odell, (10 A.) 92 1, Jackson v. Phillips, (14 A.) 96 539; Bates v. Bates, 134 110. [See Perpetuity.] III. Administration; ct-phes; Visitok. 26. The court is not at liberty to alter the scheme of a testator, either as to the objects of the charity, or the agents by whom it is to be administered, unless it appears to be impos- sible to carry out the scheme according to its terms; but where that cannot be done precisely in the mode directed, a court of equity will regulate the disposition as nearly as possible, in accordance with the donor's general intent. Baker v. Smith, (13 Met.) 54 34- Harvard College ». Theol. Ed. Soc, (3 G.) 69 280; American Academy, etc., v. Harvard Coll., (12 G.) 78 582; Jackson v. Phillips, (14 A.) 96 539; Smith Charities v. Northampton, (10 A.) 92 498; Manh v. Renton, 99 132; Fellows fl Miner, 119 541; Winthrop v. Atty.- Gen'l, 128 258; Theol. Ed. Soc. v. Atty.- Gen'l. 135 285. 27. But this can be justified only upon proof of a pressing exigency; not merely that it would be convenient to the trustees and beneficial to the fund. Winthrop v. Atty.-Gen'l, 128 258. 28. So a surplus will be applied to objects of the like kind, following the donor's intent as nearly as possible. American Academy, etc., v. Harvard College, (12 G ) 78 582. 29 Where a trust was created to apply the income for the support of meritorious indigent students in theology, residing at C, in sums not exceeding $150 a year to each, and the income had increased, so that there were not enough of such students at C to exhaust it, at the rate allowed, the court directed an increased sum to be paid to each. Theol. Education Soc v. Atty.-Gen'l 135 285. 30. An accumulation of income goes to the charity with the original bequest. Tainter v. Clark, (5 A.) 87 66. 31. But where a will devises an estate to a church, in trust, out of the income to retain a certain sum for its own use, and to expend a certain other sum upon designated public chari- ties, making no disposition of the surplus; and it appears, upon the face of the entire will, that the devise was intended for the benefit of the church, the church is entitled to the surplus. Atty.-Gen'l v. Trinity Church, (9 A.) 91 422. 32. Where funds are intermingled by a reli- gious society, which holds them upon distinct trusts, one charitable, the other religious, the court will determine, as accurately as possible, the amount belonging to each fund. Atty.-Gen'l v. Old South Soc. (13 A.) 95 474. 33. The common law of England, in regard to the visitation of eleemosynary corporations, is the law of this Commonwealth, except so far as the same has been altered by statute. In re Murdock, (7 P.) 24 303. 34. By the common law, the founder of such a corporation is its visitor, or if he is dead, his heirs; unless he has given visitatorial power to another. To the visitor belongs the power of inspecting the affairs of the corporation, and superintending its officers, according to the statutes of the founder, without control or re- vision, except by the judicial tribunals. In re Murdock, (7 P.) 24 303; Atty.- Gen'l v. Parker, 126 216. 35. The courts will not control or interfere with the ordinary exercise of a general visita- torial power provided by the founder of a charity, except where the acts of the visitors amount in effect to a breach of trust. Nelson v. Cushing, (2 C.) 56 519. 36. As to the regularity and effect of to proceedings of the trustees of the Theological Institution at Andover to remove a professor, and the power of the visitors relating thereto, see Murdock v. Phillips Academy, (12 r.) 29 244. 37. As to the powers, ete., of the selectmen of the town of Newburyport, as visitors of the Putnam Free School, see Nelson t>. Cushing, (2 C.) 56 519. CHAEITY, IV; V; VI— CHAETEE PAETY. 193 38. As to the administration of charities, un- der the charters of the Colony and Province, see Jackson®. Phillips, (14 A.) 96 539. IY. Interpretation ; Proceedings to pro- cure Interpretation. [See, also, ante, III.} 39. Charitable donations are to be liberally construed, 'with a view of promoting the gen- eral charitable intent of the donor. American Academy, etc., v. Harvard College, (12 G.) 78 582. 40. In case of a doubtful construction as to the objects of the charity, long continued usage is of weight in establishing a construction. Hadley v. Hopkins Academy, (14 P.) 31 240; Nelson v. Cushing, (2 C.) 56 579. 41. A clause, directing income to be applied towards defraying the expense of maintaining a minister and public worship, authorizes an expenditure for salary of the sexton, and fuel for the chapel. Atty.-Gen'l«. Union Society, 116 167. 42. If the language of the will is broad enough to cover an illegal as well as a legal ap- plication, and the trustees are not a corporation, the court, upon a bill by the executor for in- structions, will refer the case to a master to frame a lawful scheme, according to the testa- tor's intent, before directing payment of the fund. Jackson «. Phillips, (14 A.) 96 539. Aliter, if the trustee is a corporation. Atty.-Gen'l v. Old South Soc, (13 A.) 95 474. 43. For a case, where a will was construed as giving an income to a charitable corporation, to continue until all the trusts created by the will should be fulfilled, see Dexter 11. Episcopal City Mission, 134 394. 44. For other rulings, upon the interpretation and effect of particular clauses, in wills creating charitable trusts, see Nelson v. Cushing, (2 C.) 56 519; Wells v. Heath, (10 G.) 76 17; Drury ii. Natick, (10 A.) 92 169; Atty.-Gen'l v. Butler, 123 304. 45. A trustee, vested with a power coupled with a trust, is entitled to apply to the supreme judicial court for instructions as to the discharge of his duty. Drury v. Natick, (10 A.) 92 169. 46. An executor may file a bill for instruc- tions, as to the validity of a bequest or devise for charitable purposes, making the attorney- general a defendant. Jackson ». Phillips, (14 A.) 96 539. V. Legal and equitable Proceedings re- lating to Charities. 47. The attorney-general must be made a party to a bill by an executor, for instructions relating to the validity of a public charitable bequest, or for the transfer of a public charity to new trustees. Harvard College v. Theol. Ed. Soc, (3 G.) 69 280; Atty.-Gen'l v. Old South Vol. I— 25 Soc, (13 A.) 95 474; Jackson v. Phil- lips, (14 A.) 96 539. 48. An allegation that the treasurer of a pub- lic charity, whose term of office has expired, re- fuses to pay part of the funds to the new treas- urer, or to account or to make known to the board the mode of investment, charges a falure to make due application of funds given to pub- lic charities, within the statute, authorizing an information in such a case. Atty.-Gen'l v. Parker, 126 216. 49. In such a case the other trustees, from the beginning of the trust, and semble, the town,, where it is the donee, should be made parties' Atty.-Gen'l v. Parker, 126 216. 50. The power of the attorney-general or public prosecutor, to institute a proceeding for the enforcement of a public charity, is a com- mon law power, incident to the office; and upon such an information the complainant may appear by counsel. Parker v. May, (5 C.) 59 336. 51. As to the costs upon such an information, Atty.-Gen'l v. Old South Soc, (13 A.) 95 474; Atty.-Gen'l v. Butler, 123 304. 52. Land, held in trust for a parish or re- ligious society, may be sold by order of the court. Wells v. Heath, (10 G.) 76 17; Old South Soc «. Crocker, 119 1. VI. Liability of a charitable Institution to Inmates and others. 53. A corporation, established for the main- tenance of a public charitable hospital, which has exercised due care in the selection of its agents, is not liable for an injury to a patient, caused by their negligence, or the unauthorized assumption of an attendant to act as a surgeon. McDonald v. Mass. Gen. Hospital, 120 432. 54. A person, admitted as a permanent in- mate, into an institution for the support of poor old women, on payment of a certain sum, can- not maintain an action against the corporation for her removal by the managers, pursuant to the rules thereof, although certain rules, for the guidance of the employees in that respect, have not been complied with. Gooch v. Aged F. R. Assoc'n, 109 558. 55. A public charitable corporation is not liable to a person, who has entered its building on business, for a personal injury, in conse- quence of a defective staircase, although the defect was caused by the negligence of the superintendent. Benton e. Boston C. Hospital, 140 13 See, also, Hill v. Boston, 122 844; Tindley v. Salem, 137 171. Charlestown. [See Burial, art. 13; Town and Cut.] Charter-party. [See Bill of Lading; Insurance, V, (1); V, (7); V, (9) ; Shipping, IIL (l).l 194 CHATTEL MOETGAGE, I; II, (1). Chattel. [See Personal Property.] o Chattel mortgage. I. Nature and general Requisites. II. Validity. (1.) General rules; interpretation. (2.) Delivery of chattel. (3.) Recording mortgage. III. Rights or Parties before Fore- closure. (1.) General rules. (2.) Where the chattel is taken under legal process. IV. Foreclosure; Discharge; Extinguish- ment. V. Wrongful Sale, Removal, etc., by Mortgagor. [As to fraudulent chattel mortgages, see Fraud, III. (1). For additional and parallel cases relating to this subject, see Attachment; Collateral Security; Corporation; Execution; Insol- vent; Pledge; Sale; Trust.] I. Nature and general Requisites. 1. At law, oral evidence is inadmissible be- tween the parties to show that a written sale or transfer of a chattel, absolute in its terms, was given as a mortgage. Miller v. Baker, (20 P.) 37 285; New- ton v. Fay, (10 A.) 92 505; Harper i>. Ross, (10 A.) 92 332; Pennock e. Mc- Cormick, 120 275. 2. But the rule does not apply to a bill of parcels. Hazard ».Loring, (IOC.) 64 267. See, also, Jewett ». Warren, 12 300; Hildreth v. O'Brien, (10 A.) 92 104. See, how- ever, Whitaker v. Sumner, (20 P.) 37 399. [As to recording such a bill, see, post, II, (3).] 3. And upon a bill in equity to redeem, such evidence is admissible. Newton ». Fay, (10 A.) 92 505. 4. Third persons, ex. gr. creditors, may show that a bill of sale was a pretence and a sale. Pennock v. McCormick, 120 275. 5. But an absolute bill of sale or conveyance of goods, with a simultaneous written agree- ment by the assignee, to reconvey, or surrender the bill of sale, upon payment of a certain sum, is a mortgage between the parties. Potter v. Boston L. Works, (12 G.) 78 154; Carpenter v. Snelling, 97 452; Taber ». Hamlin, 97 489; Montague «. Boston & F. Iron Works, 108 248; Rogers ». Abbott, 128 102. See, also, Parks v. Hall, (2 P.) 19 206. 6. A bill of sale of goods, stated to be on condition that it shall be void, upon making a certain payment, is a mortgage. Homes v. Crane, (2 P.) 19 607; Ward v. Sumner, (5 P.) 22 59. 7. The transaction is not converted into a pledge, by the assignee taking formal posses- sion, and immediately leasing the property to th.6 Assignor Home's fl. Crane, (2 P.) 19 607; Potter v. Boston L. Works, (12 G.) 78 154. 8. A mortgage to pay a note past due, is, in legal eff .ct, conditioned to pay it on demand. Pettis v. Kellogg, (7 O.) 61 456. 9. It is not necessary that a chattel mortgage should be under seal. Milton v. Mosher, (7 Met.) 48 244; Sherman v. Fitch, 98 59. 10. One partner may give the firm's mortgage to secure the firm's debt. Milton v. Mosher, (7 Met.) 48 244. [See Partnership, 11.1 11. A mortgage of real property, including various fixtures in a factory situated thereupon, is not, as to the fixtures, a chattel mortgage, and is not to be recorded as such. Allen v. Woodard, 125 400. II. Validity. (1.) General rules; interpretation. [See, also, Fraud, III, (1).] 12. An undelivered mortgage is of no effect; and delivery to one, not authorized to receive it for the mortgagee, will not suffice. Dole v. Bodman, (3 Met.) 44 139. 13. A mortgage of personal property, as security for liabilities thereafter to be named, is valid, but only, as against third persons, for such liabilities as had been so incurred, before the third person acquires rights. Badlam v. Tucker, (1 P.) 18 389 Adams v. Wheeler, (10 P.) 27 199 Haskell «. Gordon, (3 Met.) 44 268 Barnard v. Moore, (8 A.) 90 273. 14. A mortgage of a building, "and also such tools and other property, as is now con- templated to be placed in such building," is void for uncertainty, against a subsequent mortgagee. Winslow v. Merchants' Ins. Co., (4 Met.) 45 306. 15. But a general description of _ the mort- gaged property, as being in a certain^ place, is good as to all property, which can be identified as then having been there; and a specific enu- meration will not prevent the application of this rule. Winslow v. Merchants' Ins. Co., (4 Met.) 45 306; Harding ». Coburn, (12 Met.) 53 333; Goulding «. Swett, (13 G.) 79 517. 16. And an error in the name of the place may be rejected. Pettis v. Kellogg, (7 C.) 61 456. 17. A mortgage of property, not in existence when the mortgage was given, or thereafter to be purchased by the mortgagor, is not valid, unless the mortgagee takes possession, after the property comes to the hands of the mortgagor. Carrington v. Smith, (8 P.) 25 419 Jones v. Richardson, (10 Met.) 51 481 Rowley *. Rice, (11 Met.) 52 333; Moody «. Wright, (13 Met.) 54 17; Bar- nard v. Eaton, (2 C.) 56 294; Codman v. Freeman, (3 C.) 57 806; Chesley v. Josselyn, (7 G.) 73 489. CHATTEL MORTGAGE, II, (1), (2), (3). 195 18. And if unfinished articles are mortgaged, they are holden after they are finished. Harding 9. Coburn, (12 Met.) 53 333. [Seo further, on this subject. Confusion and Accession op Chattels.] 19. Thereser?ation, inamortgage, of a power to the mortgagor lo sell the property, does not per se avoid the mortgage, but is evidence of a fraud- ulent intent, which is overcome by proof, that the proceeds were to go upon the mortgage debt. Briggs v. Parkman, (2 Met.) 43 258; Jones 9. Huggeford, (3 Met.) 44 515; Barnard 9. Eaton, (2 C.) 56 294; Cod- man 9. Freeman, (3 C.) 57 306; Sleeper v. Chapman, 121 404; Fletcher 9. Powers, 131 333. See, however, Rob- bins «. Parker, (3 Met.) 44 117. 20. And a stipulation that the mortgagor may Tetain possession, until default, is not neces- sarily fraudulent. Badlam 9. Tucker, (1 P.) 18 389; Adams 9. "Wheeler, (10 P.) 27 199; Briggs «. Parkman, (2 Met.) 43 258. 21. Such a stipulation affords no defence to replevin by a junior mortgagee against the mortgagor, if the prior mortgagee has made no claim. Adams 9. Wildes, 107 123. 22. An agreement by the mortgagee, not to put the mortgage upon record, unless the mortgagee had trouble, does not, as matter of law, avoid the mortgage as to the mortgagor's creditors. Folsom v. Clemence, 111 273. So as to a mortgage with power to sell, if the property is attached. Gordon «. Clapp, 113 335. 23. "When the mortgagor holds the property, under a contract of sale, by which he is to own it, on payment of the price, the mortgage be- comes valid, when the price is paid. Crompton 9. Pratt, 105 255. 24. A mortgage of intoxicating liquors is valid, against one taking them without author- ity, although the mortgage contains a clause, that the proceeds of sales by the mortgager shall be used to purchase other liquors, to be held subject to the mortgage. Cobb 9. Parr, (16 G.) 82 597. 25. But a mortgage to secure a debt, part of •which is for the illegal sale of liquors, is void. Brigham v. Potter, (14 G.) SO 522. 26. And a mortgage to secure a debt, part of which is in contravention of the insolvent laws, is void. Denny 9. Dana, (2 C.) 56 160. 27. A mortgage is not invalidated by the fact, that that the goods mortgaged were purchased, with money obtained by fraud. Codman 9. Freeman, (3 C.) 57 306. 28. A purchaser from the mortgagor cannot defend replevin by the mortgagee, upon the ground that the mortgagor never owned the chattel, the true owner not having claimed it. Adams v. Wildes, 107 123. 29. The validity of a mortgage of personal property, executed in another state by a citizen of this State, who is there with the property; or of personal property here, executed in another state between two citizens of that state; depends upon the law of that state; and what that law is, is a question of fact. Langworthy v. Little, (12 C.) 66 109; Rhode Island C. Bk. 9. Danforth, (14 G.) 80 123; Hackett v. Potter, 135 349. [See further, as to the validity of a personal mort- gage, in general, and as affected by fraud. Attach- ment; Fraud, III, IV.] 30. A mortgage of "groceries," contained in a " country and village grocery store," does not include pails, shovels, etc., although such arti- cles are usually kept in such a store. Fletcher 9. Powers, 131 333. 31. A mortgage upon articles used in and about a hotel, giving a list thereof, and adding a general clause embracing all such articles, will include a sail-boat, aLhough other such sail boats are specially mentioned. Veazie 9. Somerby, (5 A.) 87 280. 32. A provision in a chattel mortgage, given in fraud of creditors, that the mortgagor may use and enjoy the mortgaged property, will not warrant the jury in finding, that an assignee of the mortgage had knowledge of its fraudulent character. Sleeper 9. Chapman, 121 404. (2.) Delivery of chattel. 33. Semite, that at common law a chattel mortgage was not valid against creditors, un- less there was a delivery of the chattel to the mortgagee. Gale 9. Ward, 14 352; Bonsey 9. Amee, (8 P.) 25 236; Bingham 9. Jor- dan, (1 A.) 83 373. Aliter, Homes 9. Crane, (2 P.) 19 607. 34. Under the existing statute, St. 1832, Ch. 157; G. S., Ch. 151, § 1; St. 1874, Ch. Ill, § 1; P. S., Ch. 192, § 1; requiring either a delivery of the chattel, or a recording of the mortgage, the delivery required is such as would be neces- sary, in case of an absolute sale of the chattel. Bullock v. Williams, (16 P.) 33 33; Forbes«. Parker, (16 P.) 33 432; Wright 9. Tetlow, 99 397. 35. It suffices if the chattel is delivered, before the accruing of any title by a third person, in opposition to the mortgage. Mitchell 9. Black, (6 G.) 72 100; Wright 9. Tetlow, 99 397. 36. The sufficiency of the mode of delivery depends upon the nature of the article. Weld ®. Cutler, (2 G.) 68 195; Car- penter 9. Snelling, 97 452,' Wright 0. Tetlow, 99 397. [See further upon this subject, Attachment, I, (5);SALE,II,(3).f 37. A delivery to the agent of the mortgagee is a sufficient delivery to him. McPartland 9. Read, (11 A.) 93 231. 38. A delivery to the mortgagee avails to his assignee. Hunt d. Holton, (13 P.) 30 216. (3.) Recording mortgage. [See, also, ante, art. 11.] 39. The fifteen days) within which the . mortgage is required to be recorded by the St. of 1874; P. S., Ch. 192, § 1, are to be computed from its actual delivery, not the day named in it as the date. 196 CHATTEL MORTGAGE, II, (3); III, (1). Shaughnessey v. Lewis, 130 355; Orcutt v. Moore, 134 48. 40 Under that provision, where the property is not delivered to the mortgagee, an attach- ment, made after the execution, but before the recording of the mortgage, takes precedence of the mortgage, although the mortgage is re- corded within the fifteen days. Drew i!. Streeter, 137 460. 41. A subsequent purchaser cannot hold against an unrecorded mortgage, unless he takes actual possession before the mortgage is recorded. Chamberlain ». Clemence, (8 G.) 74 389. See, also, Alden v. Lincoln, (13 Met.) 54 204. 42. A bill of parcels, taken as security for a debt, without a delivery, is not such a chattel mortgage as is contemplated by the statute. Williams v. Nichols, 121 435. 43. Nor is a defeasible or conditional assign- ment of a chose in action. Marsh v. Woodbury, (1 Met.) 42 436. 44. Nor is a mortgage made in another state or country, whether by a citizen of this State, or a non-resident. Esson v. Tarbell, (9 C.) 63 407; Langworthy v. Little, (12 C.) 66 109. 45. A mortgage of growing wood and tim- ber is a chattel mortgage, and as such is suffi- ciently recorded in the town clerk's office. Claflin ». Carpenter, (4 Met.) 45 580; Douglas «. Shumway, (13 G.) 79 498. 46. But a mortgage on a building, erected by one who has a bond for a deed of the land, is not a chattel mortgage, to be so recorded. Eastman ». Foster, (8 Met.) 49 19. 47. The exception in the statute, as to a ship or vessel, does not apply to a sail boat, used in connection with a hotel, and not enrolled or licensed under the IT. S. laws. Veazie v. Somerby, (5 A.) 87 280. 48. It is not necessary to record the ratifica- tion, by the stockholders of a corporation, of a previously recorded chattel mortgage. Sherman v. Pitch, 98 59. 49. The certificate of the town clerk, on the back of the mortgage, that it has been duly re- corded, cannot be disproved, as against the mort- gagee, by a copy of the supposed record, diff- ering materially from the mortgage. Ames v. Phelps, (18 P) 35 314; Jacobs i). Denison, 141 117 50. The certificate is conclusive evidence that the mortgage has been recorded. Tracy d. Jenks, (15 P.) 32 465; Thayer v. Stark, (6 C.) 60 11; Jordan «. Farns- worth, (15 G.) 81 517; Puller v. Cun- ningham, 105 442; Adams «. Pratt, 109 59 51. If there is a doubt, as to whether a par- ticular paper was a part of the mortgage, when it was left for record, that question is for the jury. Adams «. Pratt, 109 59. 52. Leaving the mortgage with the town clerk, and his indorsement thereon of the usual memorandum, is a sufficient recording. Jordan v. Parnsworth, (15 G.) 81 517. 53. Por rulings, as to the town where the mortgage must have been recorded under the R S., and the act of 1843, now superseded, see Whitney v. Heywood, (6 C.) 60 82- Witham v. Butterfield, (6 C.) 60 217* Brigham v. Weaver, (6 C.) 60 298. ' 54. Where an agreement for a mortgage was. made in Nov., 1873, and it was given in May, 1874, dated Nov., 1874, and certified as recorded in May, 1874, but the date, as recorded, was Nov., 1873, and a second mortgage was given in Feb., 1874, and recorded in Sept., 1874, it was held that the former mortgage had priority. Jacobs v. Denison, 141 117. [For parallel cases as to recording deeds, see Deed, 55. Where neither is the property delivered, nor the mortgage recorded, a subsequent pur- chaser from the mortgagor will hold, although he has knowledge of the mortgage. Travis e. Bishop, (13 Met.) 54 304, Shapleigh v. Wentworth, (13 Met.) 54 358. 56. Qu. , as to an attaching creditor. Denny v. Lincoln, (13 Met.) 54 200; Bingham «. Jordan, (1 A.) 83 373. 57. An unrecorded chattel mortgage is not valid, against the assignee in insolvency of the. mortgagor. Bingham v. Jordan, (1 A.) 83 373. 58. But a mortgagee may maintain an action against a tort feasor, although the mortgage is not recorded. Pratt v. Harlow, (16 G.) 82 379. 59. Where a mortgage is expressly made sub- ject to another prior mortgage, the second mort- gagee cannot contest the validity of the first, on the ground that it is not recorded. Howard «. Chase, 104 249; Pecker v. Silsby, 123 108. III. Rights of Pasties before FORE- CLOSURE. (1.) General rules, 60. Where the mortgagee is entitled to pos- session, the mortgagor, or a second mortgagee, having no right to the possession, cannot main- tain trover. Holmes v. Bell, (3 C.) 57 322; Good- rich v. Willard, (2 G.) 68 203; Landon e, Emmons, 97 37; Wells v. Connable, 138 513. 61. But serrible, that an action will lie by the mortgagor against the mortgagee, for a sale of part only of the mortgaged property, as that is inconsistent with his right of redemption. Granger v. Kellogg, (3 G.) 69 490; Spaulding v. Barnes, (4 G.) 70 330; Landon ». Emmons, 97 37. 62. Where the mortgagor continues in po»" session, he cannot, as against the mortgagee, create any lien upon the property, for storage, repairs, or the like, except where the terms of the mortgage imply that he is to continue to use the property, in such a manner as to create a necessity for such charges. _ Storms *. Smith, 137 201. See, also, Hollingsworth «. Dow, (19 P.) <>» 228; Robinson v. Baker, (5 C.) 59 «'. Richardson v. Rich, 104 156; Globe Works v. Wright, 106 207; Gilson % Gwinn, 107 126; Hammond ». Daniel- son, 126 294. CHATTEL MOETGAGE, III, (1). 197 63. And the mortgagee' s subsequent knowl- edge, without expressing disapprobation, that such expenses have been incurred, does not ren- der him liable therefor. Storms v. Smith, 137 201. 64. "Where the parties to a chattel mortgage indorse thereupon an agreement, that, if the mortgagor sells any of the property, the mort- gagee will discharge the same upon receiving the money therefor, the mortgagor cannot divest the interest of the mortgagee by a sale, unless the money is paid. Whitney v. Heywood, (6 C.) 60 82. 65. A mortgage of personal property, duly recorded, passes the title to the property, and the right of possession, unless the mortgage provides that possession shall be retained by the mortgagor. Boise s.Knox, (10 Met.) 51 40; Brack- ett ii. Bullard, (12 Met.) 53 308; Landon ■». Emmons, 97 37. 66. If, pending an action by the mortgagor against a stranger for conversion of the prop- erty, the mortgagee takes possession for breach of the condition, that fact goes in mitigation of damages. Dahill v. Booker, 140 308. Such an action is not defeated, by the plaintiff giving a second mortgage, while it is pending. Dahill v. Booker, 140 308. 67. A mortgagee of a chattel may maintain an action against a stranger, who takes it from the mortgagor although the debt is not due. Woodruff v Halsey, (8 P.) 25 333; Hunt v. Holton, (13 P.) 30 216. 68. If the property is rightfully in the pos- session of a first mortgagee, a second mortgagee «annot maintain trover for the conversion thereof. Rugg v. Barnes, (2 C.) 56 591; Ring v. Neale, 114 111; Clappi>. Campbell, 124 50. 69. Trover lies by a mortgagee against the mortgagor, and another, who assisted him clan- destinely to remove the mortgaged goods from the State. Strickland v. Barrett, (20 P ) 37 415. 70. And against an auctioneer, who sold the goods by the mortgagor's direction, and paid him the proceeds, although the auctioneer did not in fact know of the mortgage, it being duly recorded. Coles «. Clark, (3 C.) 57 399. 71. Where a mortgage is given to two per- sons, to secure their several debts, they do not take jointly, but each in proportion to his debt. Donnels «. Edwards, (2 P.) 19 617. See, also, Howard v. Chase, 104 249. 72. A mortgagee of part of a vessel and cargo may recover his mortgagor's proportion, from one, who, as agent of all the owners, has sold and received payment for the whole. Milton v. Mosher, (7 Met.) 48 244. 73. So he may recover his mortgagor's pro- portion upon an abandonment. Rice v. Cobb, (9 C.) 63 302. 74. Where attached goods are mortgaged, and the mortgagor dies before they are taken on execution, and his administrator receives the goods from the officer, on paying his fees under the statute, the mortgagee is entitled to posses- sion, and may recover them, after demand, with- out paying or tendering the fees. Parsons v. Merrill, (5 Met.) 46 356. 75. See, also, as to the effect of a mortgage upon attached goods, Appleton v. Bancroft, (10 Met.) 51 231. 76. A mortgagee, who has proved his debt in bankruptcy, without disclosing his security, is not thereby estopped from claiming the prop- erty, against a subsequent mortgagor, who has proved his debt. Cook «. Farrington, 104 212. 77. Under a mortgage on a vessel, to secure the payment of a sum in two instalments, with power to lake possession, the mortgagee may take possession, upon the failure to pay the first instalment. Murray v. Erskine, 109 597. 78. A secret taking of possession by the mort- gagee, and afterwards suffering the chattel to remain in undisturbed possession of the mort- gagor, does not avail. Milton v. Mosher, (7 Met.) 48 244. 79. A mortgagee is not estopped, by a recital in the mortgage, that it is given subject to a prior mortgage to another, from showing that in fact there was no such prior mortgage. Barry v. Bennett, (7 Met.) 48 354. 80. And if there was such a prior mortgage, which had become absolute by breach of the condition, the jury may find, upon proof that the mortgage debt had been paid, that the mort- gagee has waived his right to hold the property. Barry v. Bennett, (7 Met.) 48 354. 81. In replevin by a mortgagee, it is not error for the judge to refuse to rule that the plaintiff cannot recover, unless all the ' property re- plevied was taken by the defendant, and to instruct the jury that they must be satisfied, that the property replevied was included in the mortgage. Molineux v. Coburn, (6 G ) 72 124. 82. A chattel mortgage, given to secure a note, will sustain the mortgagee's title, although the note is barred by the statute of limitations. Crain v. Paine, (4 C.) 58 483. 83. Where a chattel mortgage secures the payment of a note, and the chattel is delivered to the mortgagee, ar.d upon the note being dis- honored, is sold, and the proceeds appropriated, the mortgagor cannot maintain trover, upon proof that the note was given to indemnify the mortgagee against a liability, which has termi- nated without loss to him. Holmes «. Bell, (3 C.) 57 322. 84. A purchaser from the mortgagor may establish his title against the mortgagee, by proof of an oral license from the mortgagee to sell, although the mortgage contains a clause prohibiting such a sale. Shearer ii. Babson, (1 A.) 83 486; Stafford v. Whitcomb, (8 A. 90 518; Pratt v. Maynard, 116 388. 85. And such a license may be inferred by the jurv from facts tending to imply it. Pratt v. Maynard, 116 388. 86. A sale by the mortgagee before fore- closure is a conversion, for which the mortga- gor may maintain trover. Spauldmg v. Barnes, (4 G.) 70 330. 198 CHATTEL MOETGAGE, III, (1), (2). 87. But If the mortgage contains a power of sale on default, it may be exercised, although but one instalment has fallen due; and it is immaterial that the mortgagee assigned another reason for taking possession, and that the sale was not in accordance with the terms of the mortgage. Murray v. Erskine, 109 597. 88. In the exercise of such a power, the mortgagee may adjourn the sale from time to time, without notice to the mortgagor. Hosmer v. Sargent, (8 A.) 90 97. 89. A bill in equity lies by a mortgagee against the mortgagor's assignee in insolvency, and a prior mortgagor, who have a contest as to the validity of the prior mortgage, to prevent a foreclosure; to settle the validity of the prior mortgage; to redeem it if it is valid; and to pro- cure the property, or the proceeds thereof, upon such redemption. Dillaway v. Butler, 135 479. 90. Upon a bill by a junior mortgagee to re- deem a prior mortgage, which stipulates for insurance by the mortgagor, the mortgagee is entitled to be paid a sum paid for a note given for the premium for insurance on the property, made by the mortgagor, and indorsed and taken up by the mortgagee. Can\». Hodge, 130 55. 91. A bill lies in equity to redeem personal property from a mortgage, where the mortga- gee refuses to account, without which a tender cannot be made; or where the property was conveyed by an assignment, absolute in form, but really as security for a debt; but unless there is some special reason for equitable inter- ference, the party is confined to the remedy under G. S., Ch. 151, §§ 4, 5; P. S., Ch. 192, Newton v. Fay, (10 A.) 92 305; Mon- tague v. Boston & F. I. Works, 108 248; Gordon i>. Clapp, 111 22; Bush- nell ». Avery, 121 148. (2.) Where the chattel Is taken nailer legal process. [See, also, Attachment, I, (4) ; I, (5) ; II, (1).] 92. Where a non-resident executes to another non-resident a mortgage upon a chattel within the foreign jurisdiction, and it is duly regis- tered according to the local law, the mortgagee may maintain replevin therefor against an at- taching creditor here. Esson v. Tarbell, (9 C.) 63 407. 93. Where a mortgage provides, that upon an attachment by any other creditor, the mort- gagee may take immediate possession, the latter may maintain an action against an attaching officer, who has taken the property from the mortgagor's possession, without havmg himself taken possession. Kent v. Reed, (16 G.) 82 282. 94. A mortgagee of goods in a store, who has taken possession, cannot maintain an action of trespass against an officer, for entering the store, to attach the goods as the property of the mortgagor, unless he makes himself fc trespasser db initio, by taking possession and keeping it an unreasonable time. Rowley v. Rice, (11 Met.) 52 337. 95. After mortgaged goods have been at- tached, and the mortgagee has been summoned, he cannot give notice and foreclose the mort- gage. Hobart v. Jouvett, (6 C.) 60 105. 96. In an action by a mortgagee, against an. attaching officer, the plaintiff cannot be heard to say that the attachments are excessive, or that the claims on which they are founded are in- valid. Howe i>. Bartlett, (1 A.) 83 29. 97. A mortgagor rightfully in possession when goods are wrongfully attached, may maintain an action against the attaching officer, although the attachment constitutes a breach of the condition. Copp v. Williams, 135 401. 98. And a mortgagee may maintain an action against an attaching officer, where the mortgage contains such a provision, although the debt is not yet due. Forbes v. Parker, (16 P.) 33 462. 99. A mortgagee of a chattel may maintain an action against an attaching officer, or a dis- training tax collector, who seizes the goods as the property of the mortgagor. Perry «. Chandler, (2 C.) 56 237; Fuller®. Day, 103 481. 100. The statute, requiring demand and no- tice before maintaining an action against an attaching officer, does not apply to a sale under an .execution; and the fact that after the levy, and before the- sale, the offcer attached the property in another action, is immaterial. Leonard v. Hair, 133 455. See, also, Brackett «. Bullard, (12 Met.) 53 305; Lyon v. Coburn, (1 C.) 55 278; Lamb ». Johnson, (10 C.) 64= 126; Sullivan v. Lamb, 110 167. 101. Nor does it apply to an attachment by trustee process against the mortgagor. Putnam «. Cushing, (10 G.) 76 334. 102. Nor where the attachment is invalid. Jordan «. Farnsworth, (15 G.) 81 517. 103. Nor to an attachment by a United States Howe v. Freeman, (14 G.) 80 566. 104. An action will not lie in favor of the mortgagee, against an attaching officer, without proof of demand of payment of the debt from the officer, and furnishing him a statement and account, as required by~G. S., Ch. 123, §63; 321; P. S. Ch. 161, § 75. Moriarty v. Lovejoy, (23 P.) 40 Haskell «. Gordon, (3 Met.) 44 Buck v. Ingersoll, (11 Met.) 52 Codman v. Freeman, (3 C.) 57 306; Wing®. Bishop, (9 G.) 75 223; Hanson v. Herrick, 100 323; Hunt ». Williams, 106 114; Putnam «. Rowe, 110 28; Bicknello. Cleverly, 125 164; Citizens' Nat. Bk. v. Oldham, 136 515. 105. Where the demand, although it refers to the record of the mortgage, fails to specify one of the articles included, it is inoperative as to that article, although operative as to the others. Woodward v. Ham, 140 154. 1C6. A material misstatement in the account, which tends to mislead or deceive the attaching creditor, renders the demand inoperative;_ but inaccuracies or errors, resulting from accident or mistake, which do not mislead, will not invalidate the proceeding. CHATTEL MOETGAGE, III, (2); IV. 199 Moriarty «. Lovejoy, (23 P.) 40 321; Johnson v. Sumner, (1 Met.) 42 172; Rowley v. Kice, (10 Met.) 51 7; Hard- ing*. Coburn, (12 Met.) 53 333; Sprague v. Branch, (3 C.) 57 575; Gassett v. Sanborn, (8 G.) 74 218; Hills v. Far- rington, (6 A.) 88 80; Clark v. Dear- born, 103 335; Folsom v. Clemence, 111 273; Bicknell v. Cleverly, 125 164; Robinson v. Sprague, 125 582. 107. Where the mortgage is given to indem- nify against future liabilities, a creditor of the mortgagee may make a specific attachment of the mortgaged property, instead of resorting to a trustee process; and in that case the demand and notice must be adopted to the character of the mortgage. Haskell v. Gordon, (3 Met.) 44 268; Codman «. Freeman, (3 C.) 57 306; Hanson v. Herrick, lOO 323; Putnam v. Rowe, 110 28. 108. Where the mortgage is made to two per- sons, to secure a gross sum to each, the account may set forth the gross sum due to each. Housatonic, etc., Bk. v. Martin, (1 Met.) 42 294. 109. For other rulings, as to the sufficiency of the demand and account in particular cases, see Jones ii. Richardson, (10 Met.) 5 1 481 ; Codman u. Freeman, (3 C.) 57 306; Averill v. Irish, (1 G.) 67 254; Moli- neux v. Coburn, (6 G.) 72 124; Brew- ster v. Bailey, (10 G.) 76 37; Rhode I. Cent. Bk. ». Danforth, (14 G.) SO 123; Morrill v. Keyes, (14 A.) 96 222. 110. If, after the demand, the debt is not paid within the time allowed by the statute, the mortgagee may at once maintain trover against the officer. Alden «. Lincoln, (13 Met.) 54 204; Codman v. Freeman, (3 C.) 57 306. 111. The mortgagee cannot sell part of the property, apply the proceeds upon his debt, and demand for the balance. Granger v. Kellogg, (3 G.) 69 490. 112. Semble, that where there are successive attachments, each creditor has a right to a sep- arate demand, and the full statutory time, al- though the officer is the same. Wheeler ». Bacon, (4 G.) 70 550; Howe v. Bartlett, (1 A.) 83 29; Macom- ber v. Baker, (3 A.) 85 241. 113. And a second demand may be made, after the mortgagee has failed in his action founded on the first. Crosby v. Baker, (6 A.) 88 295. 114. The demand may be made by an infant mortgagee. Bradford «. French, 110 365. 115. It may be made by one, to whom the pledgee or mortgagee has consigned the goods for sale, and he may maintain an action for failure to comply therewith. dark ». Dearborn, 103 335. 116. After he has assigned the mortgage, the assignee must, and the mortgagee cannot make the demand. Home v. Briggs, 98 510. 117. The demand may be made after a writ of replevin has been taken out by the mortgagee, and the goods removed from the Common- wealth. Moore v. Quirk, 105 49. 118. The demand must be made within a reasonable time, depending upon the particular circumstances of the case. Johnsons. Sumner, (1 Met.) 42 172; Housatonic Bk. v. Martin, (1 Met.) 42 294; Legate «. Porter, (1 Met.) 42 325; Tapley v. Butterfield, (1 Met.) 42 515; Brackett v. Bullard, (12 Met.) 53 308; Crosby v. Baker, (6 A.) 88 295. 119. The demand may be signed by an at- torney. Pettis ». Kellogg, (7 C.) 61 456. Although insufficient as to one of two mort- gages, it may be good for the other. Simonds e. Parker, (3 Met.) 44 144; Witham v. Butterfield, (6 C.) 60 217. 120. It need not contain an express demand of payment, if such a demand is sufficiently im- plied therein. Brewster v. Bailey, (10 G.) 76 37. 121. Where the attaching creditor proceeds under G. S., Ch. 123, § 67; P. S., Ch. 161, § 79, and the officer, after summoning the mortgagee as trustee, abandons the attachment, and after- wards forcibly resumes possession, the mort- gagee may maintain replevin, although the trustee process is still pending. Boynton v. Warren, 99 172. 122. In proceedings under that section, the dis- charge of the trustee vacates the attachment, and entitles the mortgagee to immediate possession. Martin v. Bayley, (1 A.) 83 381; Hay- ward v. George, (13 A.) 95 66. 123. And, during the continuance of the at- tachment, the mortgagor cannot maintain an action for the property. Furber v. Dearborn, 107 122. 124. And this, although a demand has been made under § 63, G. S.; § 75, P. S., and the property has been sold as perishable. Jackson v. Colcord, 114 60. 125. Section 67, G. S.; 79, P. &., applies only, where the goods are in possession of the mortgagor; and an attachment there- under, and a summons to the mortgagee as trustee, where the goods are in his possession, are void. Porter v. Warren, 119 535. 126. Where the proceedings are properly taken under that section, if the mortgagee, being summoned, makes default, he cannot maintain an action fcr levying the execution on the property. Flanagan v. Cutler, 121 96. 127. Mortgaged chattels may be sold, under an execution against the mortgagor, if there was a valid attachment upon the same, when they were taken under the execution: and it is immaterial that the attaching creditor paid the mortgage after they were so taken, if it was paid within the time prescribed under P. S., Ch. 161, § 80. Loomis v. Lewis, 140 208. IV. Foreclosure; Discharge; Extinguish- ment. 128. A bill in equity does not lie to foreclose a mortgage of patent rights, of which the rnort- 200 CHATTEL MOKTGAGE, IV— CHEAT. gagee holds an absolute assignment, although a bill to redeem such a mortgage lies. Qu., whether a bill to foreclose lies in any case. Boston & F. I. Works v. Montague, 108 348. 129. A mortgagee may proceed, concurrently, with an action to recover the debt, and proceed- ings to foreclose under the statute. Burtis s. Bradford, 122 129. 130. Where the mortgagee files the notice of intention to foreclose and affidavit of service, the foreclosure is not affected by the town clerk's omission to index it. Burtis 1>. Bradford, 122 129. 131. Where a mortgage is valid without be- ing recorded, notice of intention to foreclose is valid without registration. Taber e. Hamlin, 97 489. 132. A mortgage, to secure a note payable on demand, may be foreclosed without a demand; and oral evidence is inadmissible to show, that the note was given as collateral security, to in- demnify the mortgagee against liabilities not yet matured. Southwick v. Hapgood, (10 C.) 64 119. 133. A notice of intention to foreclose such a mortgage is equivalent to a demand of the debt, and constitutes a breach of a condition, entitling the mortgagor to possession until de- fault, as against a purchaser from the mort- gagor. Goodrich ». Willard, (2G.) 68 203. 134. An oral agreement by a mortgagee, after foreclosure, with one to whom the mortgagor had sold the property, to accept payment of the debt and discharge the mortgage, and a subse- quent tender of the debt, are a waiver of the fore- closure, and entitle the purchaser to the prop- erty. Phelps r>. Hendrick, 105 106. 135. Where, after foreclosure, the assignee in insolvency of the mortgagor recovers the value of the property from the mortgagee, on the ground that the mortgage was fraudulent, the latter may recover the debt from the mort- gagor. Whitney v. Willard, (13 G.) 79 203. 136. A mortgage to secure an indorser is not discharged by payment of the note, with money advanced by the indorser to the mortgagor. Bryant e. Pollard, (10 A.) 92 «81. 137. The mortgagee waives the mortgage by attaching the property for the debt. Evans v. Warren, 122 303. 138. Where a mortgage contains two condi- tions, one of which never took effect, and the mortgagee receipts the goods to an attaching officer, sells them, and with the proceeds satis- fies the other condition, the mortgage is extin- guished. Shepardsonfl. Whipple, 107 279.. 139. A jury may infer a discharge of the mortgage from an agreement to do so, given by the mortgagee to a purchaser, by whom it is taken to the town clerk, and the latter notes a satisfaction on the margin of the record. Stowell v. Goodale, (6 C.) 60 452. 140. Upon performance of the condition, the property ipso facto reverts to the mortgagor. Per Wilde, J., in Parks v. Hall, (2 P.) 19 206. 141. A mortgage, conditioned to pay certain notes therein described, is not affected by a subsequent independent agreement, that it should stand as security for certain other notes. Haley v. Manufacturers' Ins. Co., 120 292. See Avery v. Bushnell, 123 349. 142. Where, upon the sale' of the mortgaged property by the administrator of the mortgagor, his estate being represented insolvent, the holder of the mortgage declared that he had a mort- gage thereupon, which was all unpaid, and the property was struck off to him; it was held, that the mortgage was not discharged, and the purchase was of an equity of redemption. Farnum i>. Boutelle, (13 Met.) 54 159. V. Wrongftjl Sale, Removal, etc., by Mortgagor. 143. The statute, G. S., Ch. 161, § 62; P. S., Ch. 203, § 70, does not apply to a contract be- tween mortgagor and mortgagee, or the assignee of one and the assignee of the other. Hubbard v. Lyman, (8 A.) 90 520. 144. Nor does it affect the title of a purchaser, with the oral assent of the mortgagee, where he had no knowledge of the mortgage, although the sale was illegal under that statute. Stafford v. Whitcomb, (8 A.) 90 518; Pratt v. Maynard, 116 388. 145. The statute does not apply where either the sale is made with the mortgagee's as- sent, or the purchaser has knowledge of the mortgage. Comm. i>. Damon, 105 580. 146. In an indictment under § 61, G. S.; § 69, P. S., containing an averment that the defend- ant removed and concealed, and aided and abetted in the removal and concealment of the mortgaged property, the allegation of aiding and abetting is superfluous, and lets in no evi- dence which would be inadmissible if it was omitted. Comm. ■». Wallace, 108 12. [See, also, Indictment, VIII, (58).] Cheat. [See, also, Action; Amusement; Assumpsit, I, (3), Conspiracy; False Pretences; Fraud; Sam I, <8).l 1. An indictment, under G. S., Ch. 161, §57; P. S., Ch. 203, § 65, charging that the defend- ant fraudulently obtained certain moneys, to wit, promissory notes, current as money, by means of a game, etc. (substantially in the words of the statute), is sufficient, and is sus- tained by proof that the defendant obtained bank bills, by means of cards, or any other implement or instrument. Comm. v. Ashton, 125 384. 2. But an indictment broader than the statute cannot be sustained. Comm. v. Parker, 117 112. 3. Purchasing goods on credit, without any reasonable expectation of being able to pay for them, is not, per se, a fraud indictable at com- mon law. Comm. v. Eastman, (1 C.) 55 189. 4. But where three persons obtained posses- sion of goods, under the fraudulent pretence of paying cash on delivery, this is a cheat, which CHEAT— COCK-FIGHTING. 201 may be the subject of an indictment for con- spiracy. Comm. ». Eastman, (1 C.) 55 189. 5. Where one by lying only, as to his credit, property, etc., without using any false weights, measures, or tokens, defrauds another of his property, the injury is a civil one, and an in- dictment will not lie at common law. Comm. o. Warren, 6 72. 6. Knowingly passing the bill of a broken bank, at its nominal value, is an indictable fraud, although the bill is of some value. Comm. v. Stone, (4 Met.) 45 43. 7. An indictment will not lie for a mere breach of contract, however fraudulent, such as obtaining fraudulently a deed lodged in escrow. Comm. v. Hearsey, 1 137. 8. Apart from any statute, the possession of simulated bank bills, where there is no such bank, with intent to pass them as genuine, is not indictable. Comm. v. Morse, 2 138. 9. But, s'emble, that uttering a bank bill, with the name of a fictitious cashier countersigned thereto, is a fraud at common law. Comm. v. Boynton, 2 77. 10. Proof of loss of mind and memory is competent in defence of an indictment for fraud; and, for that purpose, proof of a recent large loss of property is competent, in connec- tion with other proof. Comm. j). Brayman, 136 438. Check. [See Bill or Exchange and Promissory Note, IV; Payment, I, (2).] Child. [Abuse of female child, see Rape ; child omitted from will, see Descent and Distribution, III. Generally, see Bastard; Infant; Negligence; Parent and Child ; Seduction.] Church. [See Parish ; Beligious Association.] Cider. [See Intoxicating Liquors, II, (1).] Cipher, communication in. [See Evidence, IX, (2).] Circuity of action. [See Contract, IV, (4); VI, (2); Covenant, I; Damages, V ; Release.] Citizen. [See Alien and Citizen.] Vol. 1—26 City. Clams. [See Town and City.] LSee Fish, III.] Clearing house. [See Bank and Banking, III, (4) ; Bill of Ex- change, etc., arts. 267, 323.] Clerk. [See, also, Appeal; County Commissioners; Court ; Record ; Town and City, III.] 1. The 19th amendment to the constitution does not require the election of clerks of dis- trict courts, whose jurisdiction extends over part of a county only. Comm. «. Mather, 121 65. 2. An assistant clerk, appointed by the clerk, may, notwithstanding that amendment, sign, in the absence of the clerk, a writ required by the constitution to be signed by the clerk of the court. Jacobs v. Measures, (13 G.) 79 74. 3. As to the salary of an assistant clerk under St., 1867, Ch. 295, § 6, see Lord v. Essex County, 98 484. 4. The supreme judicial court will decline, on the suggestion of the clerk, to proceed with a cause on the law docket, until the clerk's fees for copies are paid; although the copies have been delivered to the court. Gardner v. Gardner, (2 G.) 68 434. 5. The clerk is not required to enter an ac- tion, removed on affidavit from the superior court, until his entry fee is paid. Knapp «. Lambert, (3 G.) 69 377. 6. Where a clerk is required to pay fines to a county oiiicer for the benefit of a city or town, he is not liable to an action by the city or town. Taunton v. Sproat, (2 G.) 68 428. 7. See, as to the liability of the clerk upon his bond, nnder St., 1795, Ch. 41, and St., 1786, Ch. 57, § 3, Crocker v. Pales, 13 260. Cloud upon title. [See Quieting Title.] Coal. [See Inspection ; Weights and Measures.] Coal oil. [See Illuminating Fluid.] Cock-fighting. [See Amusement, II, (2).] 202 COHABITATION— COLLATERAL SECURITY. Cohabitation, lewd and lascivious. [See, also, Lewdness.] 1. A statute against lewd and lascivious asso- ciation and cohabitation (see P. S., Ch. 207, § 6,) does not apply to a single act of inconti- nence; it means dwelling together. Coram, v. Calef, 10 153. 2. A woman, against whom a divorce has been obtained for desertion, who afterwards goes into another state, and there marries another man, and returns here with him, is not guilty of lewd and lascivious cohabitation. Comm. v. Hunt, (4 C.) 58 49. 3. Persons who cohabit, under an honest though mistaken belief that they are lawfully married, and not under such circumstances as to create a public scandal, or tend to corrupt public morals, are not guilty of lewd and lascivious cohabitation. Comm. v. Munson, 127 459. Co-operative saving fund and loan association. [See Benevolent Association; Loan and Fund Association.] Coining. [See Forgery and Counterfeiting.] Collateral security. [Sec, also. Application or Payments; Bank, III, (1); Bankruptcy, II, (4) ; Bill op Exchange, etc., v , (4) ; Bill op Lading; Chattel Mortgage; Executor, etc, VI; Insolvent, IV. (3); Mort- gage; Payment, I, (4); Pledge; Subrogation; Surety, I. (2) ; Trust.] v 1. Notwithstanding the statute of frauds, a bill in equity lies to redeem land, which the de- fendant holds by an absolute conveyance from the plaintiff, upon oral proof that the convey- ance was given as collateral security for a loan. Campbell v. Dearborn, 109 130; Mc- Donough v. Squire, 111 217; Hassam v. Barrett, 115 256. See, also, Flagg v. Mann, (14 P.) 31 467; Glass v. Hul- bert, 102 24. 2. So of an assignment of a mortgage. Ponds. Eddy, 113 149. 3. So of shares of the capital stock of a cor- poration. Newton «. Fay, (10 A.) 92 505. 4. Where A advances to B money for the purchase of land, and the deed is taken in A's name as security, the debt is not extinguished, and is a sufficient consideration for B's subse- quent promise to pay the money. Hennessey *. Connor, 139 120. 5. And where land is purchased 'by the plain- tiff, with money borrowed from the defendant, and conveyed by the vendor to the defendant, at the plaintiff's request, as security for the loan, and the defendant afterwards sells it at an advance, the plaintiff may recover the balance as money had and received. Jackson v. Stevens, 108 94. 6. The delivery of a savings bank book is a sufficient transfer of the deposit as collateral security. Taft 4). Bowker, 132 277. 7. Semble, that such a book cannot be sold by the pledgee on default. Merchts. Nat. Bk. •». Thompson, 133 482. 8. A secret agreement by the purchaser of a chattel, to hold it as trustee, by way of collat- eral security to the person who advanced the money to buy it, is void as to an attaching cred- itor of the apparent owner. Huntington «. Clemence, , 103 482. 9. One to whom collateral security has been given, may maintain an action for the debt, without affecting the collateral security; in which he may attach any other property. Cornwall v. Gould, (4 P.) 21 444; Beckwith «. Sibley, (11 P.) 28 482; Whitwell v. Brigham, (19 P.) 36 117; Hale«. Eider, (5 C.) 59 231; Taylors. Cheever, (6 G.) 72 146. [See Attachment, I, (4).] 10. Generally, a pledge of property, to secure payment of a debt, implies authority to sell it to pay the debt, if the pledgor fails to pay- Parker v. Brancker, (22 P.) 39 40; Merchants' Nat. Bk. ■». Thompson, 133 482. 11. But a pledge of commercial paper does not imply authority to sell it, before it is due. Fletcher v. Dickinson, (7 A.) 89 23; Merchts. Nat. Bk. ■». Thompson, 133 482. 12. The question js one of contract; and where there is no. express agreement, the in- tention of the parties must be implied from the nature of the property, and the circumstances of the transaction. Merchts. Nat. Bk. v. Thompson, 133 482. 13. As to the right of the pledgee to come into equity, see Merchts. Nat. Bk. •». Thompson, 133 482. 14. The pledgee may sell the property imme- diately upon-default; but he is not bound to do so, although the property afterwards depreci- ates; nor is he bound to wait, because the value is depreciated . He is bound to exercise reason- able care and diligence, to obtain whatever the property is worth, at the time of the sale; and is liable for failure so to do. Granite Bk. v. Bichardson, (7 Met.) 48 407; Howard v. Brigham, 98 133; New- some v. Davis, 133 343. 15. Such a failure is a defence in an action upon the debt. Potter v. Tyler, (2 Met.) 43 58; How- ard v. Ames, (3 Met.) 44 308. Gowtra, Jones v. Kennedy, (11 P.) 28 125, over- ruled. 16. Where two or more "blocks" of certifi- cates of stock are pledged, the pledgee has the right, upon default, to sell either; or, if one does not bring enough to pay the debt, to sell both; and he is under no obligation to divide either into small lots, even, if a prudent owner, / COLLATERAL SECURITY— COLLEGE. 203 regarding solely his own interest, would have done so. Newsome v. Davis, 133 343. 17. He cannot become himself the purchaser, even at a public sale. If he does so, the sale is void, and the collateral security stands unaf- fected. Middlesex Bk. v. Minot, (4 Met.) 45 325. 18. If the net proceeds of the sale equal the debt, the debt is paid, without any application by the creditor. Hunt v. Nevers, (15 P.) 32 500. 19. A sale, and appropriation of the proceeds; after the debt is barred by the statute of limi tations, do not revive the debt. Porter v. Blood, (5 P.) 22 54. 20. The debtor is not bound by the amount indorsed upon the note as the proceeds of the sale; he may show, by the creditor's admissions, or otherwise, the real amount. Saunders v. McCarthy, (8 A.) 90 42. 21. If collateral security is duly sold by the creditor, the debtor is liable for the balance, after application of the proceeds. Thayer v. Putnam, (12 Met.) 53 297. [As to the mode of application of the proceeds, where there are two or more debts, or two or more articles, see Application of Payments.] 22. Where it appears that the debt, on which judgment was recovered, was assigned before judgment, as collateral security to secure another debt, also secured by mortgage, but not that the mortgaged property execeds the last named debt, the court will not compel the assignee, upon a bill filed by a judgment cred- itor of the assignor, first to resort to the mort- gaged property. Thayer v. Daniels, 113 129. 23. The payee of a promissory note, given as collateral security for his indorsement of another note, may maintain an action thereupon, al- though the other note has not been paid. Hapgood v. Wellington, 136 217. See, also, Moseley v. Ames, (5 A.) 87 163, and Bill of Exchange, V, (5). 24. A creditor, who holds collateral security for a debt, may absolve the debtor, and agree to look to the security alone; and such an agree- ment may be inferred from circumstances. Ball u. Wyeth, 99 338. See, also, Merrifield v. Baker, (9 A.) 91 29. 25. In an action by the holder, upon several overdue and unpaid obligations of a defendant corporation, the fact that part were delivered as collateral security for the remainder, is no defence, until the debt is paid. Royal Bk. Liverpool v. Grand J., etc., Co., lOO 444. 26. The holder of collateral security cannot transfer it, after the debt is paid. Bowditch v. Green, (3 Met.) 44 360. 27. Where, upon the evidence, a question arises, whether a transfer of collateral security by the holder thereof was an absolute sale, or merely a transfer of the debt, and his interest the collateral security, the question is for the jury. Proctor ». Whitcomb, 134 428. 28. If one takes a note, given as collateral security for a debt, less in amount than the face of the note, with intent to sell it for its face value, or otherwise to use it unlawfully, that does not prevent his recovering thereupon the amount of the debt. Proctor v. Whitcomb, 137 303. See, also, Pemberton Nat. Bk. v. Porter, 125 333; Atlas Nat. Bk. v. Savery, 127 75; Proctor v. Whitcomb, 134 428. 29. For a ruling that, in a particular case, there was no evidence of any restriction upon theholder's right to dispose of a note, held as collateral security, with the principal debt for which it was so held, see Proctor «. Whitcomb, 137 303. 30. Where A borrows $300 from B, and trans- fers to him, as collateral security, but by an instrument absolute in form, and reciting a consideration of $300, a note and mortgage of $1,500; and before the loan is due, B transfers the note and the mortgage to C, as collateral security for a loan of $1,200; the recital of the consideration is not, per se, notice to C, and A can only redeem on payment of C's demand. Briggs ». Rice, 130 50. 81. Under G. 8., Ch. 161, § 64; P. S., Ch. 203, § 72, the title of an innocent transferee for value is not affected by the fraud of the assignor. Gardner v. Gager, (1 A.) 83 502; Draper «. Saxton, 118 427. 32. To establish a defence, in an action on a promissory note, transferred in violation of that statute, it must be shown that the transfer was made before the maturity of the debt, for which it was held as collateral. Norcross «. Pease, (5 A.) 87 331. 33. The offence specified in that statute is punishable thereunder, not as an embezzle- ment. Comm. v. Butterick, lOO 1. 34. In an action for money lent, payment of which is secured by a transfer of stock, the question, whether the plaintiff, by an unauthor- ized sale of the stock, has violated that statute, is not involved. Reeve v. Dennett, 137 315. 35. A note, received upon an agreement to release a demand, upon the payment thereof at maturity, is received as a conditional payment, and not as collateral security; and the transfer thereof is not within that statute. Lord v. Bigelow, 124 185. Collector. [Of United States customs, see Bond, II, (3), and Custo"ms and Collector of Customs. Of United States internal revenue, see Internal Revenue (United States). Of taxes, see Bond, II, (3), and Taxation, VII, (1).] College. [See, also, Charity, etc.] 1. The exemption from taxation, etc., in the colonial act of 1650, incorporating Harvard Col- lege, applies to an assessment for the expense of altering a street; and if, when the land was ac- quired by the college, before the adoption of the constitution, its land was within the limit of the exemption, and so continued to be until the adoption of the constitution, it is st.H ex- empt, although now of greater value. 204 COMMISSIONEES— COMMON LANDS. Harvard College v. Boston, 104 470. See, also, Hardy «. Waltham; (7 P.) 24 108. 2. A part of the college yard, on ■which a dwelling-house has been built by the college, which is leased to a professor at an annual rent, is not occupied by one of its officers, within the meaning of the R. S., exempting land so occu- pied from taxation; aliter, if built for, and oc- cupied without rent by, a professor. Pierce «. Cambridge, (2 C.) 56 611. See, also, Harvard College «. Kettell, 16 204; Hardy v. Waltham, (7 P.) 24 108. 3. Where a college is authorized to grant a degree, and the mode is not specially pointed out, a vote by the governing body is sufficient to grant the degree, without a diploma. Wright «. Lanckton, (19 P.) 36 288. Commissioners. [See, also. Bridge; County Commissioners; De- position; Highway; Office and Officer; Kail- road; Town and City, VI.] 1. Where a statute authorizes a court, upon an application, to appoint commissioners within a certain time after the passage of the act, and the application is made within the time, the court may, after the expiration of the time, ap- point the commissioners nunc pro tune. Agawam «. Hampden County, 130 528. 2 . Where such commissioners are appointed for a public purpose, their proceedings must l»e returned into the court, although the statute does not expressly so direct. Brayton v. Fall River, 124 95. 3. After an unreasonable lapse of time, and where new evidence has been discovered, since they closed their sittings, the court will refuse to accept their report. Charles R. Mills e. Mill Creek Mills, (7 P.) 24 207. 4. The court will supervise the award and the proceedings of commissioners, appointed by it under a statute, to see that they have acted within, their authority, and upon the matters submitted to them. Boston & W. R. R. Co. e. Western R. R. Co., (14 G.) SO 253; Hingham & Q. Br. Co. v. Norfolk, (6 A.) 88 353; Metropolitan R. R. Co. ■». Quincy R. R. Co., (12 A.) 94 262; Wrentham «. Norfolk, 114 555. 5. An insufficient notice to a person inter- ested, to appear and be heard before the com- missioners, is waived by his omission to appear in court, and object to the acceptance of the award, or move for its recommitment. Gill v. Scituate, lOO 200. 6. Special commissioners, appointed by the court, pursuant to a statute, to assess the ex- penses of public improvements, and to report to the court for acceptance, are not authorized to reserve questions of law for the determina- tion of the court. Northampton Bridge Case, 116 442; In re Hampshire Com'rs, 140 181. Common carrier. [See Carrier.] Common council. [See Town and City, n, (3).] Common drunkard. [See Drunkenness.] o Common and notorious thief. [See Larceny, II, (3).] Common barrator. [See Barratry (Criminal Law).'] Common lands : general fields. [See, also, Parish.] 1. The proprietors of common and undi- vided lands may make partition, by vote merely. Codman v. Winslow, 10 146; Spring- field e. Miller, 12 415; Folger v. Mitchell, (3 P.) 20 396. 2. The acts of a committee, appointed by the proprietors, to lay out the land in lots, for the purpose of partition, are not binding on the proprietors, who may ratify them in part, and make a new division as to the residue. Folger ». Mitchell, (3 P.) 20 396. 3. Where proprietors who managed their lands as a corporation, under St. 1785, Ch. 53 (see G. S., Ch. 67, § 21, at seq.; P. S., Ch. Ill, § 21, et seq.), divided it into lots, and made a parol partition thereof; and a proprietor con- veyed part of his separate lot to one not a pro- prietor, and the residue was seized upon execu- tion by, and set off to, a proprietor; and after- wards the proprietors made partition by deed, according to the original parol partition, setting off to the execution creditor the whole of the said lot, but he never attempted to disturb the grantee; it was held, that the conveyance of part of the said lot was voidable only by the other proprietors, and had been affirmed by them. Dall v. Brown, (5 C.) 59 289. 4. A voluntary partition, while a petition for partition is pending, takes effect by the discon- tinuance of the latter. Folger v. Mitchell, (3 P.) 20 396. < 5. Common lands in Nantucket Island are liable to partition upon petition. Mitchell e. Starbuck, 10 5. 6. Making a highway through a general field dissolves the proprietary. Mansfield v. Hawkes, 14 440. 7. Under the statute of 1785, semble, that the proprietary, not the individual owners, are bound to maintain the division fence. Scott v. Dickinson, (14 P.) 31 276. 8. The grant of a right of common to the in- habitants of an unincorporated tract of land, conveys the right only to those who are then inhabitants. .„, Thomas v Marshfield, (10 P.) 27 3W COMMON LANDS— COMMON LAW. 205 9. A statute, providing for compensation to any one having " any legal title in any part " of a beach, includes a right of common in the beach. Thomas v. Marshfleld, (10 P.) 27 364. 10. Land, purchased by incorporated pro- prietors of a wharf, for the improvement of the wharf, vests in the corporation, for the use of the proprietors, in proportion to their shares. Holland «. Cruft, (3 G.) 69 162. 11. A vote of the proprietors of a township, that a certain quantity of land be " left common for the use of the town for building stones," does not pass any title to the land. Worcester v. Green, (2 P.) 19 425. 12. Where proprietors of common lands voted that a portion be granted to a town,, to lie undivided forever, the word "undivided" merely prohibits that it should be set off sepa- rately to individuals; and the town does not forfeit the land, by a consent that it be in- closed in three parcels, and improved. Ex 'parte Wellington, (16 P.) 33 87. 13. The power to dispose of common lands, given by the colonial act of 1636, allows a sale and conveyance to a stranger. Rogers v. Goodwin, 2 475. 14. A grant of common lands by proprietors' vote cannot be rescinded by them. Rehoboth v. Hunt, (1 P.) 18 224. 15. But the objection cannot be taken by a stranger. Davis v. Mason, (4 P.) 21 156. 16. Proprietors cannot sell, for nonpayment of taxes laid by the proprietary, lots belonging in severalty to assignees of individual proprietors. Bott v. Perley, 11 169. 17. Semite, that land, which has lain in a common field for a series of years, cannot be excluded by an allotment made pursuant to the proprietors' vote. Scott v. Dickinson, (14 P.) 31 276. 18. An ancient vote of proprietors of com- mon lands, granting a portion of the same, is prima facie evidence of title and seisin; and the portion granted may be identified by oral evi- dence of the location of the monuments, etc. , where the latter have disappeared. Gloucester «. Gaffney, (8 A.) 90 11. 19. Upon a writ of entry, a person who claims under a recent vote of persons profess- ing to be proprietors, must prove that they were such. Stevens v. Taft, (3 G.) 69 487. 20. So a justice's warrant, issued within twenty years, to call a meeting of the incorpo- rated proprietors, must be proved; but not one issued seventy years ago. Monumoi Great Beach v. Rogers, 1 159. 21. Proof of possession by some of the pro- prietors is sufficient evidence of the possession of the corporation. Monumoi Great Beach . Leach, 1 59. [But, see, Pearce v. Atwood, 1 3 324.] 33 H. VIII, Ch. 1, cheating by false tokens. Comm. u. Warren, 6 72. 8 H. VI, Ch. 16; 18 H. VI, Ch. 6, as to granting to farm lands seized into the king's hands, and letters patent or grants before office found. Wilbur v. Tobey, (16 P.) 33 177. 8 Anne, Ch. 3, as to incumbrances in rivers. Comm. «. Ruggles, 10 391. II and 12 W. Ill, Ch. 6, descent through alien ancestors. Palmer v. Downer, 2 179, note. 8 and 9 W. Ill, Ch. 11, § 7, death of co- plaintiff or co-defendant not to abate. Boynton v. Rees, (9 P.) 26 528. 6 Edw. I, Ch. 3, (statute of Gloucester), war- ranty of father not to bar son, except, etc. Russ v. Alpaugh, 118 369. 206 COMMON LAW— COMMONWEALTH. 4 Edw. III. Ch. 7, executor to have trespass for goods taken in decedent's life. Pitts®. Hale, 3 321; Holmes 1>. Moore, (5 P.) 22 257. 25 Edw. Ill, Ch. 16, abatement in part where tenant does not hold all. Boston Ov'rs v. Otis, (20 P.) 37 38. 3 and 4 Anne, Ch. 9, negotiable notes. Comm. v. Leach, 1 59. 4 and 5 Anne, Ch. 16, reversion without attornment, Farley v. Thompson, 15 18; Burden®. Thayer, (3 Met.) 44 76; payment of bond, Bond v. Cutler, 10 419; actions of account, Jones v. Harraden, 9 540, note; defects of pleading on general demurrer, Keay •». Goodwin, 16 1; Parker®. Parker, (17 P.) 34 236; ancestor's collateral warranties, Russ ». Alpaugh, 118 369. 23 H. VI, Ch. 10, bail in civil actions. Long ®. Billings, 9 479; Glezen ®. Rood, (2 Met.) 43 490. 27 H. VIII, Ch. 10, dower. Hastings®. Dickinson, 7 153;Bigelow v. Hubbard, 97 195. 32 H. VIII. Ch. 9, buying land held ad- versely. Brinley v. Whiting, (5 P.) 22 348. 13 Eliz., Ch. 5; 27 Eliz., Ch. 4, fraudulent conveyances. Clapp v. Leatherbee, (18 P.) 35 131; Dyer ®. Homer, (22 P.) 39 253. 7 Jac. I, Ch. 5; 21 Jac. I, Ch. 12, double costs to officer. Comm. ®. Leach, 1 59. 32 H. VIII, Ch. 33, descent to disseissor's heir not to toll entry of rightful owner, unless, etc. Boston & W. R. R. ®. Sparhawk, (5 Met.) 46 469. 32 H. VIII, Ch. 34, rights of grantee of reversion. Howland ®. Coffin, (12 P.) 29 125; Patten ®. Deshon, (1 G.) 67 325; Stock- bridge Iron Co. ®. Cone Iron Wks, 102 80. 5. On the other hand, it has been ruled that the following English statutes were never in force within this Commonwealth: 8 and 9 W. Ill, Ch. 10, damages in actions on bonds. Sevey v. Blacklin, 2 541. 9 and 10 W. Ill, Ch. 15, awards under rule of court. Shearer ®. Mooers, (19 P.) 36 308. 19 Geo. II, Ch. 37, re-assurance prohibited. Merry v. Prince, 2 176. 14 Geo. ni, Ch. 48, life insurance. Loomis ®. Eagle Ins. Co., (6 G.) -72 396. 22 H. VIII, Ch. 5, as to repair of highways near abutments of bridges. Comm. ■». Deerfield, (6 A.) 88 449; Titcomb v. Fitchburg R. R., (12 A.) 94 254. 6. The statutes regulating proceedings on mandamus did not apply to the courts of this country. Howard v. Gage, 6 462; Lunt v. Davi- son, 104 498. 7. Nor those relating to set offs, Stowers ®. Barnard, (15 P.) 32 221; or the settlement of paupers, the wages of laborers, or the right to exercise handicrafts without apprenticeship Comm. ®. Hunt, (4 Met.) 45 111. 8. An English statute, although not authori- tative, is entitled to weight as a declaratory law. Bull v. Loveland, (10 P.) 27 9 Common nuisance. [See Nuisance, I, II. Also Bawdy-Bouse; Bet- ting, etc; Bridge; Disorderly House; High- way, V, (4); Intoxicating Liquors.] Common Pleas. [See Court of Common Pleas.] Common prostitute. [See Bawdy-House, etc.] Common road. [See Highway, I, (!)•] Common school. [See School.] Common scold. [See Idle and Disorderly Person.] Common, tenant in. [See Joint Tenants, etc.] Common victualler. [See Intoxicating Liquors.] Commonwealth. [See, also, Adverse Possession, art. 1; Aoiotcy, art. 9j; Alien; Assumpsit, art. 64; Attorney- General; Condition; Constitutional ->a*> Deed; Eminent Domain; Equity Jurisdiction. Error; Estoppel; Executor and Administra- tor; Flats; Grant; Limitation; Pleading; Nuisance.] 1. The Commonwealth cannot be impleaded in its own courts, except by its own consent, manifested by statute. Troy & Greenfield R. R. v. Comm., 127 43. COMMONWEALTH— COMPOSITION WITH CREDITORS. 207 2 Scmble, that where the Commonwealth is properly a party, and no other mode of sum- mons is provided by law, notice to the governor is sufficient. Comm. v. Boston& M. R. R., (3 C.) 57 25. i 3. Where general rights are declared, or remedies given by statute, the Commonwealth is included, although not specially named. Comm. v. Boston & M. R. R., (3 C.) 57 25. 4. The general equity jurisdiction of the supreme judicial court, in cases where there is no adequate remedy at law, extends to suits brought by the Commonwealth. Comm. «. Smith, (10 A.) 92 448; Atty.-Gen'l «. Tudor Ice Co., 104 239. 5. Under the existing statute, an action by the Commonwealth to recover land is barred in 20 years. Piper ■». Richardson, (9 Met.) 50 155. Miter, at common law. Ward v. Bartholomew, (6 P.) 23 409. 6. The Commonwealth is estopped by its re- solve fixing the boundaries of lands. Comm. v. Pejepscut Propr's., lO 155. 7. It is estopped by its deed, to assert that the grantee was an alien. Comm. ». Andre, (3 P.) 20 220. 8. It cannot assign a right of entry upon land for condition broken. Thompson v. Bright, (1 C.) 55 420. Compensation. [See Assumpsit; Attorney; Eminent Domain; Executor, etc., VIII, (2); Guardian, etc, IV ,(2); Highway, IV ; Master and Servant; Railroad, II, (7) ; Trustee, II, (5).] Complaint. [fcee Indictment and Complaint.] Composition with creditors. [See, also, Accord and Satisfaction; Assign- ment, V ; Bankruptcy, II, (5) ; Kelease.^ 1, Any private arrangement, between a debtor and a creditor, by which the latter is in- duced to execute a deed of composition, is a fraud upon the other creditors executing the deed. No contract to pay money, or to do any other act, upon such a consideration, however formal the instrument may be by which it is expressed, can be enforced; and oral evidence is admissible to avoid it. Case v. Gerrish, (15 P.) 32 49; Rams- dell v. Edgarton, (8 Met.) 49 227; Lothrop v. King, (8 C.) 62 382; Par- tridge v. Messer, (14 G.) 80 180; Harvey D.Hunt, 119 279; Fay «. Pay, 121 561; Huckins v. Hunt, 138 366. 2. A promissory note, given upon such an agreement, after the maker has been discharged, is invalid in the hands of the payee. Howe v. Litchfield, (3 A.) 85 443; Huckins v. Hunt, 138 366. 3. Nor can a creditor, who has received such a note, recover his original debt, less the sum received by him under the composition. Huckins v. Hunt, 138 366. 4. But where a person is contingently liable for the debtor, but not a creditor, and the agreement is not secret or fraudulent as to the real creditors, it may be enforced. Holton v. Bent, 122 278. 5. The validity of the agreement is to be tested by the object for which it was entered into, not by the number of persons actually de- ceived by it. Harvey v. Hunt, 1 19 279. 6. A creditor is not bound by a deed of com- position, signed by him, where another creditor, without his knowledge, has been thus induced to execute it. Partridge v. Messer, (14 G.) 80 180. 7. A note given by the debtor, for a larger sum than was really due, to enable the payee to receive a larger dividend under a composition deed, is void between the parties. Sternburg v. Bowman, 103 325. 8. Where a voluntary assignment for credit- ors is executed by a debtor, upon delivery to him of a release, a creditor, who, by agreement with another creditor, the assignee, not to claim any of the proceeds, induced the latter to re- lease, and procure the other creditors to release, cannot recover his dividend from the assignee; provided the agreement was secret, the burden of proving which is upon the assignee. Frost v. Gage, (6 A.) 88 50. 9. The addition, by a creditor, to his signa- ture to a composition deed, of a particular sum, does not imply a covenant that he then has, or that he will procure, claims to that amount. Fowler «. Perley, (14 A.) 96 18. 10. But where the deed expresses the amount of the debts to be compromised, a creditor, who has parted with two of three notes, amounting in all to that sum, is bound to fulfil for the whole amount, and cannot claim the tender of " settlement notes," for which the composition deed provides, while the two notes are outstand- ing against the debtor. Farrington v. Hodgdon, 1 19 453. 11. Where a creditor's claim is not described, and he holds one absolute claim and one con- tingent claim, it is a question of intention, upon all the circumstances and all the parts of the deed, whether the contingent claim was in- cluded. « Hamblen v. Ratigan, 1 19 153. 12. In the absence of any fraud, an agree- ment by creditors to accept, in satisfaction of their debts, sums less than the full amounts thereof respectively, is binding between each creditor executing it, and the debtor, and extin- guishes the debt. Eaton «. Lincoln, 1 3 424; Perkins v. Lockwood, lOO 249; Curran v. Rum- mell, 118 482; Farrington v. Hodgdon, 119 453. 13. If the debtor, in order to induce some of his creditors to execute the agreement, pays them a larger percentage, without the others' knowl- edge, one of the latter may sue, without return- ing the composition notes, or the proceeds thereof. Cobb v. Tirrell, 137 143 See S. C 141 459. 208 COMPOUNDING A CRIME— CONDITION. 14. If the agreement stipulates that it shall not be binding, unless all the creditors become parties to it, it is invalid if one does not sign, although he is paid in full before the time fixed. Turner ». Comer, (6 G.) 72 530. 15. And a debt against the maker of a note, is not extinguished by a composition with the indorser. Comm'l Bk. v. Cunningham, (34 P.) 41 270. 16. Nor does a composition with the maker discharge the indorser or surety, if the holder's remedy against the latter is expressly reserved by the composition deed. Tobey v. Ellis, 114 120; Richardson v. Pierce, 119 165. See, also, Sohier v. Loring, (6 C.) 60 537; Hutchins «. Nichols, (10 C), 64 299; Potter v. Green, (6 A.) 88 442. 17. A composition deed must be limited to include only those debts which are within its scope, and thus within the parties' intention; and general words in such a deed, relating to a specific class of debts, will not discharge a debt not belonging to that class. Preston v. Etter, 140 465. 18. A bill in equity will not lie in favor of a creditor, who has advanced the money for an insolvent's composition, to enjoin another cred- itor from suing the insolvent for the balance of his debt, no fraud or collusion being shown. McBride v. Little, 115 308. 19. A bill in equity will lie in favor of a com- mittee of creditors, to whom assets have been conveyed, upon a proposed composition, which has failed, against the new creditors and the assignees in insolvency of the debtors, to settle priorities and marshal the assets. Fairbanks v. Belknap, 135 179. Compounding a crime. 1. Any act, which is made punishable by law as a crime, whether a misdemeanor or a felony, cannot lawfully be made the subject of a private compromise, except as specially au- thorized by statute. Such a compromise is a misdemeanor at common law, and an action will not lie upon an agreement made for that purpose. Partridge v. Hood, 120 403. See, also, Comm. v. Pease, 16 91; Jones v. Rice, (18 P.) 35 440. 2. In the cases authorized by statute, the ac- knowledgment of satisfaction does not entitle the defendant to be discharged; but leaves it to the discretion of the court or magistrate to stay the proceedings. Comm. v. Dowdican's bail, 115 133; Partridge v. Hood, 120 403. 3. A promissory note, in settlement of a claim, may be void, if given to suppress a criminal prosecution, although no threats of such a prose- cution were made when- it was given, if such threats were previously made. Taylor e. Jaques, 106 291. 4 An understanding, as well as an agree- ment, to suppress a prosecution for felony, is made a crime by statute; and in an action upon a promissory note, where the defence is that it was given for that purpose, it is erroneous to instruct the jury that there must have been an agreement. Clark v. Pomeroy, (4 A.) 86 534. 5. The understanding may be inferred from circumstances; competency and relevancy of evidence for that purpose. Clark v. Pomeroy, (4 A.) 86 534- Clark «. Pomeroy, (12 A.) 94 557. 6. In such an action, the plaintiff cannot show that the district attorney advised the magistrate, that the testimony for the govern- ment was insufficient. Bigelow v. Woodward, (15 G.) 81 560. 7. Nor is the question of the guilt or inno- cence of the accused open in any form. Gorham v. Keyes, 137 583. 8. To render the promise void it must have been made for gain, not merely from kindness or compassion. Ward v. Allen, (2 Met.) 43 53. 9. The law will refuse not only to aid a party to enforce such a contract, but also to relieve him from it if it is executed, or to aid him to reclaim what he has applied to such a purpose.' Worcester v. Eaton, 1 1 368; Atwood i>. Fisk, 101 363. 10. A deed cannot, therefore, be avoided on the ground that it was given upon such a con- tract. Worcester v. Eaton, 11 368. 11. And a debtor may successfully defend, on the ground that he paid the money at the credi- tor's request, to compound a felony with which the creditor was charged. Leonard v. Travis, (6 A.) 88 129. Compromise. [See Accord and Satisfaction; Composition; Discontinuance.] Computation of time. [See Time.1 Concealing incumbrance on mort- gaged property. [See Mortgage, I, (10) ; Indictment, VIII, (58).l Concealing mortgaged property. [See Chattel Mortgage, V; Indictment, vm, (58).] Concern. [See Amusement, I.] Condition. I. General Rules. (1.) Definition; whether a restriction constitu- tes or does not constitute a condition; interpre- tation; effect. (2 ) Validity CONDITION, I, (1), (2). 209 21. Performance and Breach. (1.) What amounts to performance or breach. (2.) Waiver. (3.) Forfeiture and re-entry. III. Condition precedent. [As ,o pleading conditions, performance, and waiver thereof, see Pleading, II, (1). For other rulings relating to conditions, see Charity; Con- tract, IV, (4); Covbnant; Deed, I, (4); III, (7); Devise, III, (8).] I. General Rules. Cl.) Definition; whether a restriction constitutes or does not constitute a con- dition; interpretation; effect. 1. Although the words, " upon the consider- ation," "upon condition," "subject to the con- dition," or the like, in a conveyance of real property, are apt words to create a condition, a breach of which forfeits the estate, they will not be allowed to have that effect, where the in- tention Of the grantor, as manifested by the whole deed, is otherwise. In such a case, they create a mere personal covenant, or a trust, or a, restriction, which may be enforced in equity, upon the grantee, and those deriving title from him. Austin v. Cambridgeport Par. , (21 P.) 38 215; Wheeler v. Dascomb, (3 C.) 57 285; Gould ». Bugbee, (6 G.) 72 371; Pack- ard «. Ames, (16 G.) 82 327; Rawson 9. Uxbridge Sch. Dist., (7 A.) 89 125; Chapin «. Harris, (8 A.) 90 594; Ayer v. Emery, (14 A.) 96 67; Sohier v. Trinity Church, 109 1; Episcopal City Mission v. Appleton, 117 326; Sanborn ». Rice, 129 387; Skinner v. Shepard, 130 180; Nowell v. Boston Academy, etc., 130 209; Tobey v. Moore, ISO 448; Ayling v. Kramer, 133 12; Allen 8. Boston, 137 319; Beals «. Case, 138 138; Barkers. Barrows, 138 578; Bagnall «. Davies, 140 76; Atty.-Gen'l v. Williams, 140 329; Payson v. Burn- ham, 141 547. [See the foregoing cases for various rulings upon restrictions as to the erection of buildings, and as to other uses of the property conveyed.] 2. Such a restriction may also be enforced by a grantee of the first grantor. Payson v. Burnham, 141 547. 3. The same rule applies to a devise, or a legacy. Colwell v. Alger, (5 G.) 71 67; Martin v. Martin, 131 547. [See, also, Devise, III, (8) 4. It is of the essence of an estate upon con- dition, that the right to enter for a breach is reserved to the grantor and his heirs, not to a stranger. Guild ®. Pochards, (16 O.) 82 309. 5. The distinction between an estate upon condition, and a limitation, by which an estate is determined upon the happening of a certain event, is, that in the latter case, the estate re- verts to the grantor, or passes to the person to whom it is granted by limitation, upon the hap- pening of the event, without entry; while, in the former, the reservation is only to the grantor Vol. 1-27 or heirs, and an entry upon breach is requisite to revest the estate. A provision for re-entry is, therefore, the distinctive characteristic of an estate upon condition. Brattle Sq. Church v. Grant, (3 G.) 69 142; Atty-Gen'l v. Merrimack Man. Co., (14 G.) 80 586; Theolog. Ed. Soc. v. Atty.-Gen'l, 135 285. 6. For other instances of estates granted or devised upon condition, see Hayden v. Stoughton, (5 P.) 22 528; Parker v. Nichols, (7 P.) 24 111; Stone v. Ellis, (9 C.) 63 95; Hadley v. Hadley M. Co., (4 G.) 70 140; Hancock v. Carlton, (6 G.) 72 39; Guild ». Rich- ards, (16 G.) 82 309; Langleya. Chapin, 134 82. 7. A condition in a deed has no effect to limit the title, until it becomes operative to defeat it; subject thereto, the land passes by deed or by mortgage, as if no such condition was attached to it. Shattuck v. Hastings, 99 23. 8. Where a forfeiture of land is claimed for breach of a condition subsequent, in the per- formance of which the grantor has no interest, the terms of the condition will be construed with great strictness. Merrifield ». Cobleigh, (4 C.) 58 178; Crane v. Hyde Park, 135 147. 9. Where a deed of a lot of land, bounded on a street, contains a condition, that no build- ing shall ,be erected within certain limits, and recites that the building then on the land con- forms to the condition, there can be no ambigu- ity as to the meaning; although the same con- dition was inserted in an agreement for a deed, while the land was vacant. Keening v. Ayling, 126 404; San- born v. Rice, 129 387. 10. A condition in such a deed, regulating the height, etc., of the buildings to be erected, and the mode of occupation for a given time, applies, with respect to the time stated, only to the occupation. Keenins; v. Ayling, 126 404. 11. As to the meaning of a condition, respect- ing the removal of a building, so that it should not be upon land fronting upon a road, see Lawrence v. Gifford, (17 P.) 34 366. [See, further, as the interpretation of conditions, pott, II, (1).] (2.) Validity. [See, also. Devise, II, (6). 12. A condition, which is in its nature im- possible to be performed, is void. Foster v. Durant, (2 C.) 56 544. See, also, Lord s>. Tyler, (14 P.) 31 156. 13. A promise, on condition that the promi- sor shall recover his demands against a third person, is an absolute promise, if in fact he had no such demands. Whites. Snell, (5 P.) 22 425, 14. A condition repugnant to the estate, or contrary to the policy of the law, as that land conveyed or devised shall not be subject or liable to conveyance or attachment, is void. Blackstone Bk. ». Davis, (21 P.) 38 42; Gleason v. Fayerweather, (4 G.) 70 348. 210 CONDITION, I, (2); II, (1). 15. But a condition not to alienate for a par- ticular time, or to a particular person, or with- out first offering to the grantor, is good. Blackstone Bk. ■». Davis, (21 P.) 38 42; French v. Old So. Soc, 106 479. 16. A condition not to marry is void, although a limitation over, in case of marriage, is good. Parsons v. Winslow, 6 169; Otis i>. Prince, (10 G.) 76 581. 17. Where an owner of land inserts, in deeds of several lots, uniform conditions, operating in law as restrictions, as to the purposes for which, or the manner in which, the land may he used, or the portions that maybe covered by buildings; so far as these are reasonable in their character, they will be enforced in equity in favor of the owner, as long as he holds any of th; land, and in favor of any lot owner. "Whitney v. Union K. R., ill G.) 77 359; Parker v. Nightingale, (6 A.) 88 341; Schwoerer v. Boylston Market, 99 285; Linzee v. Mixer, 101 512; Jeffries v. Jeffries, 117 184; Atty.-Gen'l v. Gardiner, 117 492; Peck v. Conway, 119 546; Sanborn v. Rice, 129 387; Tobey v. Moore, 130 448. 18. Aliter, as to another lot owner, where the •restriction does not appear to have been for the benefit of the other lot owner. Badger ». Boardman, (16 G.) 82 559; Jewell ■». Lee, (14 A.) 96 145; Dana v. Wentworth, 111 291. 19. The grantor is entitled to the same remedy, where such a restriction is inserted in a single deed from him of part of land, of which he retains the remainder, if it appears to have been for the benefit of the land retained. Dorr v. Harrahan, lOl 531; Sharp v. Ropes, HO 381. 20. A land owner cannot have such a remedy against another land owner, where they derive title under different owners, who could not have had it intet sese. Seabury». Metropolitan R.R., 115 53. 21. The rule against perpetuities, which gov- erns future limitations to third persons, has never been held applicable to conditions, a right of entry for the breach of which is reserved to the grantor or devisor, and his heirs, and may be released. Tobey v. Moore, 130 448. See, also, Gray «. Blanchard, (8 P.) 25 284; Aus- tin v. Cambridgeport Parish, (21 P.) 38 215; Miller v. Miller, (10 Met.) 51 393; Brattle Sq. Church v. Grant, (3 G.) 69 142; French v. Old So. Soc, 106 479. 22. A condition in a deed, that no windows shall be placed in the north wall of any build- ing to be erected within thirty years, is valid. Gray v. Blanchard, (8 P.) 25 284. 23. A condition for removal of a house on the premises, and forbidding it to be placed in certain other locations, is valid. Lawrence v. Gifford, (17 P.) 34 366. _ 24. A condition repugnant to another condi- tion, taking effect earlier, is void. Canal Bridge v. Cambridge Meth. R. Soc, (13 Met.) 54 335. II. Performance and Breach. (1.) "What amounts to performance or breach. [See, also, ante, I, (1).] 25. A promise to pay a certain sum to build a college, on condition that the promisee " raise " a certain other sum for that purpose within a specified time, is not satisfied by the vote of the money by a society, to the payment of which a condition is attached. Bates College u. Bates, 135 487. 26. Where a time is not fixed for the per- formance of a condition, it is broken, unless performance is completed within a reasonable time, depending upon the peculiar circum- stances of each case. Hayden v. Stoughton, (5 P.) 22 528; Carter v. Carter, (14 P.) 31 424; Ross v. Tremain, (2 Met.) 43 495. 27. Where performance of a condition is im- possible by the act of God, performance is ex- cused, and the title, promise, gift, etc., becomes absolute. Merrill v. Emery, (10 P.) 27 507; Parker v. Parker, 123 584. 28. A condition, to maintain or keep in repair a building, requires that it should be re- built, if it is destroyed by fire, or otherwise. Tilden v. Tilden, (13 G.) 79 103; Austin «. Cambridgeport Par., (21 P.) 38 215; Allen v. Howe, 105 241. 29. But a condition to hold land for a school- house, and improve it for the benefit of schools, is not broken by failing to keep a school in the house, and using it otherwise as school prop- erty. Crane «. Hyde Park, 135 147. 30. A condition, that the land shall be used for no other purpose than a town house, is not broken, by permitting a hall in the town-house to be used for shops, or keeping a lock-up therein. French v. Quincy, (3 A.) 85 9. 31. A condition, that a church pew shall be forfeited to the society, if the grantee leaves the meeting house, is forfeited by acts showing that he has left it, permanently, without any formal leaving. French v. Old So. Soc, 106 479; Crocker ». Old So. Soc, 106 489. 32. A condition, in a deed, that no spirituous liquors be sold upon the premises, is not broken by a sale by a tenant of the grantee, without his knowledge or consent. Indian Orchard Canal Co. ■». Sikes, (8G.) 74 562. 33. A condition, to keep a grist-mill in good repair, is not broken by the use of part of the power for another purpose, or by the occasional inability to grind for want of water. Hadley v. Hadley Man. Co., (4 G.) 70 140. 34. A condition in a recognizance, to perform the acts specified in a certain statute, means the statute as amended, when the recognizance is given. Dike v. Story, (7 A.) 89 349. 35. A condition, to indemnify the grantor against principal and interest of a certain mortgage, is broken by failure to pay interest when due; and the grantor, on paying the inter- est, may enter without demand of reimburse- ment. Sanborn «. Woodman, (5 C.) 59 36. 36. For other rulings, as to the necessity of demand and notice, see CONDITION, II, (1), (2), (3). 211 Bradstreet «. Clark, (21 P.) 38 389; Merrifield 0. Cobleigh, (4 C.) 58 178; Stone v. Ellis, (9 C.) 63 95; Tilden v. Tilden, (13 G.) 79 103. [See, also, Notice and Demand.] 37. "Where notice, within a specified time, of the acceptance of a condition attached to a legacy, is required by the terms of a will, the legatee, by failing to give notice within the time required, forfeits the legacy. Am. Colonization Soc. 0. Smith Chari- ties, (2 A.) 84 302. 38. But where no special time is fixed, an acceptance when the legatee had notice, will be sufficient. Giles i). Boston Fatherless, etc., Soc, (10 A.) 92 355. 39. And acceptance may be presumed. Merrill v. Emery, (10 P.) 27 507. 40. If the charter of a corporation provides that the corporation shall cease to exist, if an act is not done within a certain time, the ques- tion whether the corporation has ceased to exist can be determined only in a suit to which the Commonwealth is a party. Briggs v. Cape Cod S. Canal Co., 137 71. (2.) "Waiver. 41. If the grantor of an estate, upon condi- tion, waives the breach, after it has occurred, by acts and conduct inconsistent with the right to insist upon a forfeiture, he cannot afterwards enforce it, by reas5n'of acts which do not con- stitute a new breach, but merely a continuation of the former breach. Guild v. Richards, (16 G.) 82 309; Hubbard v. Hubbard, 97 188. 42. Such a waiver may be proved by oral evidence of the acts and declarations of the parties. Leathe v. Bullard, (8 G.) 74 545; Guild 0. Richards, (16 G.) 82 309. 43. A condition in a lease, that the lessee shall not alienate, without the consent of the lessor, is determined by an alienation with such consent, and no subsequent alienation is a breach. Pennock 0. Lyons, 118 92. 44. A grantor, having conveyed a parcel of his lot upon a condition, designed to benefit the owner of the residue, subsequently conveyed the residue to another, who committed the forbidden act, and then reconveyed to him ; this was a waiver of the condition, which was not revived by the reconveyance. Merrifield v. Cobleigh, (4 C.) 58 178. 45. A grantor does not waive the breach of a condition, by subsequently receiving payment of a note given as part of the purchase money. Lawrence 0. Gifford, (17 P.) 34 366. (3.) Forfeiture and re-entry. 46. The grantor, in a deed on condition subsequent, or his heirs, may re-enter imme- diately on breach of the condition. Sanborn 0. Woodman, (5 C.) 59 36; Stone «. Ellis, (9 C.) 63 95; Guild v. Richards, (16 G.) 82 309; and other cases cited, ante, I, (1). 47. But an estate upon condition is not abso- lutely terminated by a breach; it continues until entry, or its equivalent, by the grantor or his heirs. Guild v. Richards, (16 G.) 82 309; Hubbard v. Hubbard, 97 188. 48. But where the grantor is in possession, when the breach occurs, the estate immediately revests in him, without entry or other act. Lincoln, etc., Bk. 0. Drummond, 5 321; Hubbard «. Hubbard, 97 188. 49. Aliter, if he has entered merely to fore- close a mortgage. Stone v. Ellis, (9 C.) 63 95; Hancock «. Carlton, (6 G.) 72 39. 50. The statute, allowing a writ of entry to be maintained without actual entry, extends to a writ of entry to enforce a forfeiture for breach of a condition. Austin i). Cambridgeport Par., (21 P.) 38 215; Stearns 0. Harris, (8 A.) 90 597; Hubbard 0. Hubbard, 97 188. 51. A mere right 6f re-entry may be released to the person holding the conditional estate, but cannot be conveyed to a third person. Guild v. Richards, (16 G.) 82 309; Richardson v. Cambridge, (2 A.) 84 118; Trask e. Wheeler, (7 A.) 89 109. 52. The Commonwealth is not excepted from this rule. Thompson v. Bright, (1 C.) 55 420. 53. If the estate of the grantor has been pre- viously assigned, under the insolvent laws, he cannot maintain a writ of entry for breach of the condition. Stearns v. Harris, (8 A.) 90 597. 54. So the right of entry is extinguished by a deed to a third person before entry, although to the grantor's son. Rice «. Boston & W. R. R., (12 A.) 94 141. 55. Turning cattle upon unimproved and un- inclosed land, and using the land as the means t>f access to adjoining land, is not an entry which revests the estate. Guild v. Richards, (16 G.) 82 309. 56. An entry is not invalid for want of no- tice thereof to the grantee; and it is not affected by a sale for taxes, until the title vests in the purchaser. Langley 0. Chapin, 134 82. 57. And where the land had been sold to the city for taxes, before the entry, and, after the time for redemption had elapsed, the city sold the land to the grantee of the conditional estate, on payment of the tax, charges, etc., the sale is invalid, and the payment enures to the benefit of the grantor who made the entry; and he can maintain a writ of entry to recover the land. Langley «. Chapin, 134 82. 58. Upon breach of a condition subsequent, contained in a devise, the estate passes to the residuary devisee, not to the heirs. Hayden v. Stoughton, (5 P.) 22 528; Brigham v. Shattuck, (10 P.) 27 306; Austin i). ©ambridgeport Par., (21 P.) 38 215. 59. If the residuary devisee dies before con- dition broken, the estate passes to his heirs. Clapp «. Stoughton, (10 P.) 27 463. 212 CONDITION, III— CONFLICT OF LAWS, 1. 60. But in a like case, personalty passes to the residuary legatee, or his personal represent- ative Clapp «. Stoughton, (10 P.) 27 463. 61. Where, however, the devisees on condi- tion are also residuary devisees, the estate goes to the heirs. Sackett v. Mallory, (1 Met.) 42 355. 62. In a writ of entry for condition broken, the burden is on the demandant to prove the Lowell M. Ho. *. Hilton, (11 G.) 77 407; Ayer e. Emery, (14 A.) 96 67. Tobey 11. Taunton, 1 19 404. III. Condition precedent. [As to dependent and independent stipulations in a contract, sea Contract, IV, (4).] 63. Where there is a condition precedent in a contract, to the right of the party to enforce it, no action will lie upon the contract, until the fulfilment of the condition or the happen- ing of the event, whether it depends upon his act, or is within his power to effect or prevent, or the reverse. Johnson v. Reed, 9 78; Mill Dam Foundery «. Hovey, (21 P.) 38 417; Hyde v. Boston & Barre Co., (21 P.) 38 90; Cadwell v. Blake, (6 G.) 72 402; Gilson «. Blanchard, (1 A.) 83 420; Burdett v. Yale, (6 A.) 88 420. 64. Where a party to a suit, v.hich is settled out of court, promises to pay all costs to be taxed by the court, he is not liable until he has received notice of the amount. Barnes v. Parker, (8 Met.) 49 134. 65. Whether a condition is to be deemed pre- cedent or subsequent, depends upon the inten- tion of the parties, and the nature of the acts to be performed, as gathered from the instru- ment. Johnson v. Reed, 9 78; Gardiner «. Corson, 15 500; Sears v. Fuller, 137 326. 66. A legacy % to a wife, on condition of her releasing her right of dower, is not deemed as establishing, as a condition precedent, a formal release; acts of election will suffice. Merrill v. Emery, (10 P.) 27 507. 67 A legacy, on condition of maintaining the testator, does not constitute a condition precedent to recovering the legacy. Colwell «. Alger, (5 G.) 71 67. 68. Where new notes are given for a less amount than a subsisting note, under an agree- ment, that if they are paid, when due, the old note shall be given up, but if any of them are not paid, it shall remain in force, the punctual payment of each of the new notes is a condition precedent; and if one is unpaid on the day it falls due, a tender the day after will not suffice. The return of the new notes is not a condition precedent to maintaining an action on the old note. Tufts «. Kidder, (8 P.) 25 537. 69. Where a party would Ipse all benefit of a transaction, after incurring large expendi- tures, by a slight omission to comply with the terms of the alleged conditions, the language must be clear and unambiguous, and incapable of any other reasonable interpretation, to induce the court to hold that the terms are conditions precedent. South Cong. Meeting Ho. v. Hilton, (11 G.) 77 407. Condonation. [See Divorce, n, (1),] Confession. [As evidence, see Evidence, VTJ Conflict of laws. I. General Rules; what Law governs. II. Proof op, and Presumptions as to, for- eign Laws. III. Particular Cases. (1.) Tenure and transfer of property. (2.) Estate of a decedent. (3.) Domestic relations. (4.) Contracts. (5.) Judicial proceedings. (6.) Corporations and joint-stock associations. [See, also, Assignment, III; Bank, II; Bank- ruptcy, I; II; Chattel Mortgage, II (I) Con- tract, IV, (1) ; Corporation, VI; VIII , D w»0i, etc., I: Executor and Administrator i (') VIII; Husband and Wipe, I; Insolvent, I, VI Interest, I; II, (4); Intoxicating Liquors, I, (3), Judgment, I, (2); Personal Property, I, trust, I, (2); III; Will.] I. General Rules; what Law governs. 1. The laws of foreign countries are not ad- mitted ex proprio trigore, but only«B comitate; and the judicial power will exercise a discretion with respect to sanctioning them. If they are manifestly unjust, or calculated to injure our own citizens, they ought to be rejected Blanchard v. Russell, 13 1; Prentiss v. Savage, 13 20; Ingraham ». Geyer, 13 146, Tappan v. Poor, 15 419; West Cambridge v. Lexington, (1 P.) 18 506. 2. In general, such operation is given to act* done in other jurisdictions, as those jurisdic- tions give to acts done in ours; but, in th» case, the court gave effect to an assignment made in Maine, although the Maine courts had refused to give effect to a similar assignment made here. Means v. Hapgood, (19 P.) 36 105. 3. The penal laws of a foreign jurisdiction have no effect here. Comm. «. Green, 17 515. 4. The negotiability of instruments, and all other matters relating to the remedy, such as the form of the action, the proper parties, etc., are governed by the law of the place where the remedy is pursued. Pearsall v. Dwight, 2 84; Orr «. Amory, 11 25; Blanchard v. Russell, 13 1; McRae v. Mattoon, (10 P) 27 49; Foss «. Nutting, (14 G) 80 484; CONFLICT OF LAWS, I; II. 213 Leach *. Greene, 116 534; Drake *. Rice, 130 410. 5. The statute of limitations is deemed part of the remedy; and a foreign statute of limita- tions is not pleadable in an action here, although both parties were residents of the foreign juris- diction, and the contract was made there, and was to he performed there . Pearsall *. Dwight, 2 84; Byrne «. Crowninshield, 17 55; Bulger*. Roche, (HP.) 28 36. [Alitor now, by statute. St. 1880, Ch. 98 ; P. 8., Ch- 197, 8 11 J 6. A written instrument, executed elsewhere, and made a specialty by the local statute, must be sued upon here in assumpsit. McClees v. Burt, (5 Met.) 46 198. 7. Rules of evidence also depend upon the lex fori, although the evidence relates to matters in another state, the proof of which is other- wise regulated by its statutes. Hoadley *. Northern Trans. Co., 115 304. 8. The succession to the right of action de- pends upon the lex fori. Richardson*. New York C.R. R., 98 85. 9. In order to maintain an action of tort, founded upon an injury to person or property, committed elsewhere, the act must at least be actionable or punishable by the law of the place where redress is sought. LeForest «. Tolman, 117 109. 10. One foreigner may sue another here, upon a contract made, and the subject matter of which is situated, without the State. Barrell v. Benjamin, 15 354; Am. M. L. Ins. Co. *. Owen, (15 G.) 81 491; Roberts *. Knights, (7 A.) 89 449; Pea- body *. Hamilton, 106 217; Johnston *. Trade Ins. Co., 132 432. 11. Although our courts will afford a remedy upon an executed contract, lawful in the place where it was made, but invalid here, they will not permit the enforcement of an executory con- tract, the object or consideration of which is contrary to public policy in this Commonwealth. Greenwood *. Curtis, 6 358; Parsons *. Trask, (7 G.) 73 473. 12. And the sale of goods elsewhere, with a view to resell the same here, contrary to the laws of this Commonwealth, will not enable the seller to maintain an action here for the price. "Webster * Hunger, (8 G.) 74 584- Charlton *. Donnell, 100 229. 13. And an employee here of a seller in another state, who receives orders under his employer's authority, and delivers to the buyer here, may "be indicted. Comm. *. Eggleston, 128 408. [See, however, Melntyre v. Parks, (3 Met.) 44 207. bee, aiso,post, III, (4).] _ 14. Aliter, if the vendor did not participate in the illegal purpose of the vendee, although he had reasonable cause to believe that such a pur- pose existed. Orcuttfl. Nelson, (1G.) 67 536;Dater *. Earl, (3 G.) 69 482; Kellogg*. Moore (2 A.) 84 266; Savage ». Mallory, (4A.) 86 492; Adams*. Coulliard, 102 167- Ely *. Webster, 102 304; Tracy *. Webster, 102 307; Hotchkiss *. Finan, 105 86; Lindsey *. Stone, 123 332; Frank *. O'Neil, 125 473. See, how- ever, Bligh v. James, (6 A.) 88 570; Crary *. Pollard, (14 A.) 96 284. 15. A policy of insurance against condemna- tion for breach of the revenue laws of a foreign country, is a lawful contract. Richardson *. Maine Ins. Co., 6 102; Parker *. Jones, 13 173. 16. Otherwise of an insurance upon a voy- age, prohibited by the laws of the insurer's country. Richardson *. Maine Ins. Co., 6 102; Russell *. De Grand, 15 35. 17. Where an assignment is made here, be- tween parties domiciled here, of a policy of in- surance issued by a foreign corporation, but delivered here, the questions as to the validity of the assignment, and the capacity of the par- ties to contract, are governed by our law. Mut. L. Ins. Co. «. Allen, 138 24. II. Proof of, and Presumptions as to, for- eign Laws. 18. Foreign unwritten laws must be proved and determined as questions of fact, for which purpose oral testimony of experts is competent. Frith v. Sprague, 14 455; McRae *. Mattoon, (13 P). 30 53; Holman *. King, (7 Met.) 48 384; Mowry *. Chase, lOO 79; Hazelton *. Valentine, 113 472; Ames ». McCamber, 124 85. [See G. S., Ch. 131, 8 64; P. 8., Ch. 169, 8 73.] 19. Qu., whether the relation in which we stand to the English common law does not re- quire a modification of this rule. Carnegie *. Morrison, (2 Met.) 43 381. 20. And foreign laws cannot be considered on exceptions, unless they are embodied in the bill of exceptions, as facts proved. Eastman v. Crosby, (8 A.) 90 206; Haines *. Hanrahan, 105 480; Mut- phy *. Collins, 121 6. 21. A volume, purporting to contain the stat- utes of another state, and to be printed by its authority, is prima facie evidence of the statute law of that state, independently of our statute. Raynham v. Canton, (3 P.) 20 293. 22. Qu., whether the same rule applies to the statutes of a foreign country Raynham v. Canton, (3 P.) 20 293. [See G. S., Ch. 131, 8 65 ; P. S., Ch. 169, § 73.] 23. The words "by authority," on the title page, afford a presumption that the volume was thus printed. Merrifield *. Robbins, (8 G.) 74 150. 24. A printed copy of the statutes of another state, purporting to be published by its author- ity, is admissible under G. S., Ch. 131, § 63; P. S., Ch. 169, § 71. Ashley *. Root, (4 A.) 86 504. 25. The books of reports of decisions in another state, are evidence of the law of that state, G- S., Ch. 131, § 64; P. S., Ch. 169, § 72; and the decision of a judge trying the cause without a jury, is final, if the cases con- flict. Penobscot & K. R. R. v. Bartlett, (12 G.) 78 244. Cragin «. Lamkin, (7 A.) S9 395; Ames v. McCamber, 124 85: Hackett *. Potter, 135 349. 214 CONFLICT OF LAWS, H; ILL (1). 26. But if there is no conflict, the construc- tion and effect are questions of law. Kline «. Baker, 99 253; Ely D.James, 123 36. 27. A dictum in the highest court of another state, is admissible as evidence of the law there. Hackett v. Potter, 135 349. 28. Upon exceptions, the court is confined to the statutes and decisions introduced in evi- dence below, and set out in the bill of excep- tions. Hackett «. Potter, 135 349. 29. The court here will endeavor to decide as as the foreign court would, if the cause was pending there. Hackett ». Potter, 135 349. 30. A paper, purporting to be a copy of an opinion of a foreign court, annexed to the depo- sition of a witness, is inadmissible, where he does not testify that the facts and the law were known to him, nor that the case is truly re- ported. French v. Lowell, (18 P.) 35 34. 31. The presumption is, that a common law offence is an offence in another state. Thurston v. Percival, (1 P.) 18 415. 32. In the absence of proof as to the local law, a marriage, solemnized in a foreign country, by a priest, under which the parties have cohabited as husband and wife, will be presumed to be valid there, even on a trial for bigamy. Comm. «. Kenney, 120 387. 33. The presumption; that every person knows the law, does not extend to the law of another state. Haven D.Foster, (9 P.) 26 112; Finch «. Mansfield, 97 89. 34. Upon a question of general mercantile or commercial law, the law of another state, or of a foreign country, is presumed, in the absence of testimony, to be the same as our own; and this rule extends to Scotland, although the English law differs from ours. Wood-w. Corl, (4 Met.) 45 203; Cribbs v. Adams, (13 G.) 79 597; Chase v. Al- liance Ins. Co., (9 A.) 91 311; Dubois v. Mason, 127 37. 35. So as to the general power of a guardian. Brooks v. Tobin, 135 69. 36. But there is no presumption that the statutory law of another state is the same as ours. Murphy v. Collins, 121 6. 37. In an action on a note, made and payable in another state, where there is no proof of the law of that state, the question, whether the note is negotiable, is to be determined by the com- mon law, and St. 3 and 4 Anne, Ch. 9, as declared by the decisions of the Commonwealth. Richards v. Barlow, 140 218. III. Particular Cases. (1.) Tenure and transfer of property. [As to a decedent's estate, seepos^, III, (2).] 38. An assignment of real or personal prop- erty, situated here, if made in another state, and valid there, but invalid here, will not be sustained against an attachment here, by one of Our citizens. Ingraham v. Geyer, 13 146; Lanfear «. Sumner, 17 110; Fall R. I. Works v. Croade, (15 P.) 32 11; Osborn » Adams, (18 P.) 35 245; Zipcey v Thompson, (1 G.) 67 243; Boyd » Rockport Steam C. Mills, (7 G.) 73 406- Pierce v. O'Brien, 129 314. 39. But such an assignment is valid as to personal property, then within the state where it was made, and as against a citizen of that state, even when seeking a remedy here, against property found here. "Whipple ». Thayer, (16 P.) 33 25; Daniels v. Willard, (16 P.) 33 36; Bur- lock v. Taylor, (16 P.) 33 335; Wales v. Alden, (22 P.) 39 245; Richardson v. Forepaugh, (7 G.) 73 546; Martin v. Potter, (11 G.) 77 37; Benedict ». Par- menter, (13 G.) 79 88; Rhode I. C. Bank v. Danforfh, (14 G.) 80 123; May ■». Wannemacher, 111 202; Swan v. Crafts, 124 453. [See, also, post. III, (4).] 40. So as to an assignment, for the benefit of creditors, of personal property here, if the debtor is domiciled in the other state. Train «. Kendall, 137 366. 41. But an assignment of personalty, by commissioners in bankruptcy, or by judicial or legislative authority merely, without the act or consent of the debtor, are not binding upon our courts. Blake v. Williams, (6 P.) 23 286; Taylor ». Columbian Ins. Co., (14 A.) 96 353; May «. Wannemacher, 111 202. 42. An assignment of personalty, by a debtor residing in another state, valid by our laws, is good against an attachment by a creditor re- siding here. Newman v. Bagley, (16 P.) 33 570; Means v. Hapgood, (19 P.) 36 105. 43. The validity of a chattel mortgage, ex- ecuted in another state, or a foreign country, upon property there, between parties there, de- pends upon the law of that state or country, and is valid against an attachment here, by a, eitizen of this Commonwealth. Esson v. Tarbell, (9 C.) 63 407; Rhode I. C. Bk. v. Danforth, (14 G.) 80 123; Hackett i>. Potter, 135 349. 44. So if it is made in another state, by a citizen of this State, temporarily there with the property. Larigworthy v. Little, (12 C.) 66 109. 45. So if the parties were residents of the other state, and the mortgage was executed there, the property being here. Rhode I. C. Bk. v. Danforth, (14 G.) 80 123. 46. The title to real property, and the valid- ity as well as the form, of any instrument of transfer of real property, whether a deed, a mortgage, or a will, is to be determined by the lex rei sitae, although both parties reside else- where. Cutter v. Davenport, (1 P.) 18 81; Osborn v. Adams, (18 P.) 35 245; Gpd- dard v. Sawyer, (9 A.) 91 78; Sedgwick «. Lafiin, (10 A.) 92 430; Ross 0. Boss, 129 243. 47. But although the deed may be void, a covenant therein may be valid, as to one not domiciled in the foreign jurisdiction. Phelps v. Decker, 10 267. CONFLICT OF LAWS, III, (2), (3), (4). 215 48. As to an assignment of a policy of insur- ance; see Mut. L. Ins. Co. «. Allen, 138 24; cited, ante, art. 17. (2.) Estate of a decedent. 49. The status of a person, with the inherent capacity of succession or inheritance, is to be determined by the laws of the domicil which creates the status, so far as they are not incon- sistent with the laws and policy of the state, where the question arises. Ross«. Ross, 129 243. [See, also, this case, jpos(, art. 60.] 50. As to personal property, the construction and effect of a will, and the distribution thereby made of the testator's estate, are to be governed by the law of his domicil. Fellows v. Miner, 119 541; Sewalln. Wilmer, 132 131. 51. "Where a power of appointment of person- alty, created by the will of a testator domiciled here, was executed by the will of a person domiciled in another state, the estate is regarded as that of the first testator; and the appoint- ment, being valid under our laws, but invalid under the laws of the other state, is to be deemed valid here. Sewall «. Wilmer, 132 131. See, also, Merrill v. Preston, 135 451. 52. An administrator, appointed here, cannot maintain an action here, upon the statute of another state, which gives the executor or ad- ministrator of a deceased person a right of ac- tion for causing his death by negligence, although the injury occurred in that state. Richardson e. New York C. R. R., 98 85. 53. A nuncupative will, made in another state, and valid there, but which would not be valid here, may be proved under our statute, with the same effect as if it was a will executed according to our laws. Slocomb «. Slocomb, (13 A.) 95 38. [As to the rights, duties, etc., of foreign executors and administrators in this Commonwealth, with or without ancillary letters, see Executor and Ad- ministrator, I, (4). As to the effect of probate of a foreign will, here and at the domicil of the testa- tor, see Will, III, (1).] (3.) Domestic relations. [For the effect of foreign divorces, see post, III, (5). For rulings as to procuring a divorce here, for acts committed in another jurisdiction, see Di- vorce, I; II.] 54. A guardian, appointed in another state, of a child domiciled here, has no absolute right to the custody of the child; but the court may decree it to him, although a guardian has been appointed here. Wocdworth «. Spring, (4 A.) 86 321. 55_. For rulings respecting a master and slave, coming to this State from a state where slavery was allowed, see Comm. v. Aves, (18 P.) 35 193- Comm. v. Taylor, (3 Met.) 44 72. 56. A marriage, valid where it was contracted, is valid here, if not incestuous or made void by our statute, although it would have been void if contracted here; and this, although the par- ties went from this to another state, for the pur- pose of avoiding our laws. [Aliter now by statute, as to the latter proposition, G. S., Ch. 106, § 6; P. S., Ch. 145, § 10.] Medway v. Needham, 16 157; West Cambridge v. Lexington, (IP.) 18 506; Putnam «. Putnam, (8 P.) 25 433; Sut- ton v. Warren, (10 Met.) 51 451. 57. A marriage in a foreign country, between a citizen of this Commonwealth and a woman not domiciled there, before the United States consul, is valid here, although not according to the law of the foreign country. Loring «. Thorndike, (5 A.) 87 257. 58. The marriage in another state, of a resi- dent of this Commonwealth, against whom a divorce for his adultery has been obtained, here, is valid here. Comm. v. Lane, 113 458. 59. The law of the parties' domicil governs the status of a child by adoption; and that status continues after their removal into another juris- diction. Ross v. Ross, 129 243. See, also, Foster v. "Waterman, 124 592. 60. And where a child was duly adopted, pur- suant to the laws of another state, where the parties were domiciled, which provide that a child thus adopted has the same rights of suc- cession and inheritance, as the legitimate off- spring of the adopting father, and the parties afterwards remove to this Commonwealth, by the laws of which the adoption would have been insufficient, the child is entitled to inherit the real property of the adopting father. Ross e. Ross, 129 243. [See St., 18T6, Ch. 213, § 11; P. S., Ch. 148, § 9.] 61. But, unless the foreign statute otherwise expressly provides, it does not apply to the ad- option there by parents domiciled here, of a child domiciled there. Foster «. Waterman, 124 592. (4.) Contracts. [See, also, ante, III, (1).] 62. Generally speaking, the nature, obliga- tion, and legal effect of a personal contract, and its validity, even as regards the capacity of the party to make it, as in the case of a married woman or an infant, are to be determined by the law of the place where it is made. Grimshaw » Bender, 6 157; Van- cleef v. Therasson, (3 P.) 20 12; Car- negie v. Morrison, (2 Met.) 43 381; Steb- bins v. Leowolf, (3 C.) 57 137; Barney v. Newcomb, (9 C.) 63 46; Denny «. "Williams, (5 A.) 87 1; Chase «. Alli- ance Ins. Co., (9 A.) 91 311; Vrancx v. Ross, 98 591; Stevenson «. Payne, 109 378; Murphy o. Collins, 121 6; Ames v. McCamber, 124 85; Milliken «.Pratt, 125 374; Ross ». Ross, 129 243. 63. Even if it is expressly prohibited by the statutes of the state, where an action is brought upon it, if it is not in itself immoral, the action will lie. Greenwood ■». Curtis, 6 358;McIntyre v. Parks, (3 Met ) 44 207; Milliken ». Pratt, 125 374. [See, also ante I.] 64. As to enforcing here contracts, made in a place where slavery is lawful, and founded upon transactions relating to slaves, see 216 CONFLICT OF LAWS, III, (4). Greenwood v. Curtis, 6 358; and dicta of Shaw, C. J., in Comm. v. Aves, (18 P.) 35 193. 65. If a resident of the Commonwealth orders goods, by letter mailed here to another state, and they are delivered there to a carrier for him; or mails here a guaranty for goods sold there, which is received and acted upon there; the contract is made there. Milliken «. Pratt, 125 374. See, also, Orcutt v. Nelson, (1 G.) 67 536; Webster v. Munger, (8 G.) 74 584; Hirschorn v. Canney, 98 149; Kline v. Baker, 99 253; Suit fl.Woodhall, 113 391. 66. For rulings as to the place where a sale in another state, of intoxicating liquors, to be resold in this Commonwealth, is deemed to have been made, with reference to the validity of the contract, see Merchant v. Chapman, (4 A.) 86 362; Finch ■». Mansfield, 97 89; Abberger v. Marrin, 102 70; Brockway v. Maloney, 102 308; Dolan v. Green, HO 322; Comm. ■». Greenfield, 121 40; Sherley is McCormick, 135 126; Weill). Golden, 141 364, and cases cited in arts. 11 to 14, ante. 67. A policy of insurance, issued and signed in another state, but delivered here, is governed by our law. Heebner «. Eagle Ins. Co., (10 G.) 76 131; Thwing v. Great W. Ins. Co., Ill 93. And see Wash. Co. Ins. Co. v. Dawes, (6G.) 72 376. 68. So of a promissory note, signed elsewhere and delivered here. Lawrence i>. Bassett, (5 A.) 87 140. 69 So where the note is signed and payable here, and indorsed elsewhere. Woodruff v. Hill, 116 310. 70. Semble, that the rule is otherwise, where it is accepted elsewhere. Worcester Bk. B.Wells, (8 Met.) 49 107. 71 The effect of indorsement and delivery, in another state, of a warehouse receipt for goods stored in this State, is to be determined by the law of this State. Hallgarten v. Oldham, 135 1. 72. A. promissory note or bill of exchange, made and delivered in another state, and not expressly made payable elsewhere, is governed by the law of that state. Powers v. Lynch, 3 77; Williams v. Wade, (1 Met.) 42 82; Warren v. Copelin, (4 Met.) 45 594; Stevenson v. Payne, 109 378; Murphy ». Collins, 121 6. 73. The indorsee of such a note, suing the indorser here, must do all that is required by the foreign law to charge him. "Williams v. Wade, (1 Met.) 42 82. 74. And if a promissory note or bill of ex- change is void for usury, in the state where it was negotiated, it is void here, whether payable here or there. Van Schaack v. Stafford, (12 P.) 29 565; Dunscomb v. Bunker, (2 Met.) 43 8; Ga^e v. Eastman, (7 Met.) 48 14; Ayer v. Tilden, (15 G.) 81 178; Akers v. Demond, 103 318; Towne v. Rice 122 67; Stanton v. Demerritt, 122 495. 75. A note, secured by mortgage on real property here, executed here and mailed to another state, pursuant to negotiations there, and void there for usury, is governed by our law. Pine v. Smith, (11 G.) 77 38. 76. As between a commission merchant here, and his correspondent elsewhere, the transac- tion is regarded as having occurred here. Coolidge v. Poor, 15 427. 77. Where a contract, made in one jurisdic- tion, contemplates making payments or doing other acts in another jurisdiction, the law of the place of performance governs the contract. Carnegie v. Morrison, (2 Met.) 43 381; Penobscot & K. B. R. «. Bartlett, (12 G.) 78 244. 78.- Where interest is agreed expressly or impliedly to be paid, and no rate is mentioned, it is payable according to the rate of the place of performance; and if money is to be paid in one state, and the residue of the contract is to be performed in another state, the rate of the former state governs. French v. French, 126 360; Von Hemert v. Porter, (11 Met.) 52 210. See, also, Winthrop v. Carleton, 12 4; explained in Ayer e. Tilden, (15 6.) 81 178. 79. But where there is no agreement, express or implied, to pay interest, as where an'action is . brought upon a foreign judgment, interest is given, as damages, at the rate in force in the jurisdiction where the judgment is recovered. Grimshaw v. Bender, 6 157; Barrin- ger v. King, (5 G.) 71 9; Eaton v. Melius, (7 G.) 73 566; Ayer e. Tilden, (15 G.) 81 178; Ives v. Farmers' Bk„ (2 A.) 84 236; Hopkins v. Shepard, 129 600; Clark ». Child, 136 344. 80. In the absence of proof, as to the legal rate of interest in the foreign jurisdiction, our rate will be allowed. Wood v. Corl, 4 Met.) 45 203. 81. A statute of another state, giving a cer- tain rate of damages, on a bill of exchange drawn or indorsed there, and payable here, does not entitle the holder to recover those damages in a suit here. Fiske v. Foster, (10 Met.) 51 597. 82. Nor does a statute of another state, pro- viding for increased damages, by way of penalty, for the benefit of schools, where an excessive rate of interest is reserved. McFadin v. Burns, (5 G.) 71 599. 83. In an action brought here, upon a con- tract, other than a bill of exchange, to pay a sum of money in a foreign country, the dam- ages recoverable will not include exchange, besides interest, even where there were no tribunals in the foreign country, wherein the plaintiff could have sued. Lodge e. Spooner, (8 G) 74. 166. And see Adams «. Cordis, (8 P.) 25 360; Alcock i>. Hopkins, (6 C.) 60 484. 84. The rule that one who takes a negotiable note, in payment of a pre-existing debt, is pro- tected, applies in an action here, although the CONFLICT OF LAWS, III, (5). 217 plaintiff resides and the paper was taken else- where, where the rule is otherwise. Culver v. Benedict, (13 G.) 79 7; Ives «. Farmers' Bk., (2 A.) 84 236. (5.) Judicial proceedings. [As to the rate of interest recoverable here, upon atoreign judgment, see ante, art. 79; Interest, I. As to tho conclusiveness and effect in general of judgments elsewhere, at common law, and under the United States constitution, see Constitutional Law, II, (6); Estoppel. II, (1).] 85. A decree of divorce, rendered in another state, then the domicil of the parties, for a cause for which a divorce is permitted by its laws, hut not by our laws, is valid and conclusive here, whether the marriage took place here or gIsg wli 6P6 Barber v. Root, 10 260, Clark 11. Clark, (8 C.) 62 385; Hood®. Hood (11 A.) 93 196; Hood v. Hood, 110 463; Burlen v. Shannon, 115 438; Sewall®. Sewall, 122 156; Ross v. Ross, 129.243. 86. The rule is not varied by the fact that the wife, who was defendant, was living here, un- der an agreement for a separation, and had no actual notice of the suit. Hood v. Hood, (11 A.) 93 196. [See K. S., Ch. 76, P. S., Ch. 148, § 41.1 , 40; G. S., Ch. 107, 88 54, 55 ; 87. But if a resident of this Commonwealth removes to another state, for the purpose of ob- taining a divorce, on a ground for which it is not allowed by our laws, and then returns here, the other party not having been within the for- eign jurisdiction, the decree is of no effect here. Hanover ». Turner, 14 227; Lyon v. Lyon, (2 G.) 68 367; Chase e. Chase, (6 G.) 72 157; Smith v. Smith, (13 G.) 79 209; Sewall v. Sewall, 122 156; Hardy v. Smith, 136 328. 88. A divorce thus obtained is not a bar to a subsequent application here for a divorce, by the other party. Lyon «. Lyon, (2 G.) 68 367; Shan- non v. Shannon, (4 A.) 86 134. 89. Nor, although followed by a pretended remarriage, does it prevent the real husband or wife from taking a distributive share of the other's property. Hardy v. Smith, 136 328. 90. But if a husband, whose wife is living apart from him, removes from this Common- wealth to another state, and acquires a domicil there, the decree is valid here. Burlen n. Shannon, 1 15 438. 91. "Where the wife appeared and answered, in the husband's divorce suit in another state, and, after he had obtained the divorce there, executed, for a pecuniary consideration, a re- lease of all claims upon him or his estate, she cannot treat his subsequent marriage as adulter- ous, on the allegation that he went from here to the other state, for the purpose of evading our laws. Loud v. Loud, 129 14. 92. Qu., whether appearance alone would have enabled her to impeach the foreign decree. Chase v. Chase, (6 G.) 72 157; Loud v. Loud, 129 14. 93. Where the record does not show service of process upon the libellee, there is no presump- tion that the foreign court acquired jurisdiction. Comm. v. Blood, 97 538. Vol. 1—28 [See, also, Divorce, I ; V. as to the sentence of a foreign admiralty court in a case of breach of a blockade, see Insurance, V, (i5). As to a like sentence in case of collision, see Insurance, V, (7).] 94. It was former, y held, that a discharge, un ier the insolvent law of Massachusetts, was valid against a creditor, who was a citizen of another state, at the time when it was made. Scribner v. Fisher, (2 G.) 68 43; Capron v. Johnson, (5 G.) 71 539; Burrall v. Rice, (5 G.) 7 1 539. 95. But these cases were overruled by the United States supreme court; and now the rule is, that in such a case the discharge is not a bar. Producers' Bk. v. Farnum, (5 A.) 87 10; Kelley v. Drury, (9 A.) 91 27; Guernsey b. Wood, 130 503; Murphy v. Manning, 134 488. 96. But the foreign creditor is barred, if he proves his debt, and receives a dividend. Journeay v. Gardner, (11 C.) 65 355; Bucklin v. Bucklin, 97 256. 97. A contract between two citizens of the same state, one of whom afterwards removes therefrom, and becomes a citizen of another state, is barred by an insolvent discharge ob- tained by the other in the first state, where he has continued to reside, under a law which was in force when the contract was made Stoddard v. Harrington, 100 87. See, also, Brigham «. Henderson, (1 C.) 55 430; Converse v. Bradley, (1 C.) 55 434, note. 98. And a discharge here is a bar to a judg- ment here, in favor of one who became a resi- dent of this Commonwealth, before the judg- ment was rendered, although he was a non- resident when the insolvency proceedings were begun. Brown «. Bridge, 106 563. 99. So if a non-resident removes to this Com- monwealth, after a debt is contracted by him to a resident, his discharge here bars the debt. Beal n. Burchstead, (10 C.) 64 523. 100. A judgment recovered here, against a resident of this Commonwealth, upon a debt to a non-resident, is not barred by a subsequent discharge in insolvency. Murphy v. Manning, 134 488. See, also, Watson v. Bourne, lO 337; Betts «. Bagley, (12 P.) 29 572; Choteau v. Richardson, (12 A.) 94 365; Brown i>. Bridge, 106 563. 101. An injunction lies to prevent a resident of this Commonwealth, from prosecuting to judgment in another state, an action against another resident, in which he has obtained an attachment, to prevent the operation of a dis- charge in insolvency proceedings here. Dehon v. Foster, (4 A.) 86 545; Dehon v. Foster, (7 A.) 89 57. 102. A discharge, under our insolvent laws, is a bar to an action upon a contract between two residents here, although made and to be performed in another state. Marsh v. Putnam, (3 G.) 69 551. 103. In the absence of any acts, whereby, under general principles of law, a special part- ner incurs the liability of a general partner, the limited liability of a special partner is recog- nized, according to the law of the state where the limited partnership is formed. Lawrence «. Batcheller, 131 504 218 CONFLICT OF LAWS, III, (5), (6). 104. And where the general partners only, in a limited partnership formed here, are sued in another state, and judgment is obtained against them, such judgment will be recognized here; and if a debtor there is trusteed, and the debt collected, the assignee in insolvency here can- not recover the money. Lawrence v. Batcheller, 131 504. 105. A discharge, under the insolvent laws of the state where the parties reside, or where the contract was made, and was to be performed, is a bar to an action here. Proctor «. Moore, 1 198; Baker v. Wheaton, 5 509; Blanchard ». Russell, 13 1; Bradford v. Farrand, 13 18; Walsh ». Farrand, 13 19; Coolid^e ». Poor, 15 427; Pitkin v. Thompson, (13 P.) 30 64, May v. Breed, (7 C.) 61 15. 106. Aliter, where the contract was a negoti- able note, indorsed to a citizen of this Common- wealth before the discharge. Braynard ». Marshall, (8 P.) 25 194. 107. Aliter of a special, limited, or temporary discharge. Watson v. Bourne, 10 337; Prentiss v. Savage, 13 20; Boston Type Foun- dery v. Wallack, (8 P.) 25 186; Coffin v. Coffin, (16 P.) 33 323. 108. And a discharge, under an unconstitu- tional law, is not a bar. Kimberly ». Ely, (6 P.) 23 440; Ag- new v. Piatt, (15 P.) 32 417. 109. So where the court or officer did not ac- quire jurisdiction, under the foreign statute. Tappan «. Poor, 15 419. 110. Where, by the foreign law, the discharge itself is made evidence of jurisdictional facts, it will have the same effect here. Betts v. Bagley, (12 P.) 29 572. 111. So as to the construction of the foreign disharge. Pease v. Folgcr, 14 264. 112. A partner, resident here, whose co-part- ner is resident elsewhere, cannot avail himself of a discharge to the firm, granted in the for- eign jurisdiction. Agnew v. Piatt, (15 P.) 32 417. 113. A bill of exchange, drawn in another state, by a resident thereof, in favor of another resident thereof, upon a resident of this Com- monwealth, and accepted by him, is not barred as against the acceptor by his discharge here. Fiske v. Foster, (10 Met.) 51 597. 114. And a promissory note, given here, by a resident here, but payable at no particular place, and indorsed, after maturity, to a resi- dent of another state, is not barred, as against the maker by his discharge here. Fessenden v. Willey, (2 A.) 84 67; Eaton «. Sweetser, (2 A.) 84 70, note. 115. For other rulings, respecting commer- cial paper, where no place of payment is speci- fied, see Savoy v. Marsh, (10 Met.) 51 594; Tebbetts v. Pickering, (5 C.) 59 83; Clark v. Hatch, (7 C.) 61 455; Hough- ton v. Maynard, (5 G.) 71 552; McKim v. Willis, (1 A.) 83 512. 116. Where a resident here orders goods from a resident of another state, which are sent to him, his discharge here does not bar the debt. Woodbridget). Allen, (12 MeU 53 470. Dinsmore v. Bradley, (5 G.) 71 487. ' 117. And where goods are sold here, by one resident to another, but they belong to a resi- dent of another ktate, which fact is disclosed to the purchaser, an insolvent discharge here does not bar the demand. Ilsley v. Merriam, (7 C.) 61 242. 118. A trust, upon which personal property is held here, created by the judicial decree of a court of another state, having jurisdiction, can- not be enforced in this Commonwealth, although the trustees reside here. Jenkins v. Lester, 131 355; Leland r>. Smith, 131 358, note. See, also Campbell «. Sheldon, (13 P.) 30 8- Campbell v. Wallace, (10 G.) 76 162 : Chase v. Chase, (2 A.) 84 101; Smith v. Mut. L. Ins. Co., (14 A.) 96 336. 119. Where one is summoned as trustee in another state, and later, on the same day, is summoned as trustee of the same person in this Commonwealth, and the court in the other state, after a full disclosure, renders a judg- ment against him, under which he pays over the debt, that is a bar here. Garity ■». Gigie, 130 184. See, also, Hull u.Blake, 13 153; Barrow v. West, (23 P.) 40 270; Ocean Ins. Co. ^Ports- mouth Railway, (3 Met.) 44 420; Am- erican Bk. v. Rollins, 99 313; Stock- well ». McCracken, 109 84. 120. Aliter, if the action here was first com- menced, and the trustee did not make full dis- closure, or wilfully suffered a default in the Wilkinson v. Hall, (6 G.) 72 568; Whipple v. Robbins, 97 107. [See, also, Judgment, I, (2); Trustee Process, III, (9).l 121. An action does not lie here, npon a bail bond taken in another state. McRae v. Mattoon, (10 P.) 27 49. 122. But bail in another state may arrest their principal here. Comm. v. Brickett, (8 P.) 25 138. 123. If, by the law of the state where a judg- ment is rendered, an appeal does not stay pro- ceedings upon the judgment, the pendency of such an appeal is not a bar to an action here, upon the judgment. Faber v. Hovey, 117 107; Clark « Child, 136 344. (6.) Corporations and joint-stock asso- ciations. 124. The rights and obligations of the stock- holders of a foreign corporation, as between themselves and the corporation, are to be deter- mined by the laws of the state wherein it was Hutchins v. N. E. Coal M. Co., (4 AO 86 580; Halsey v. McLean, (12 A.) 94 438; Bishop v. Globe Co., 135 132. 125. And a lien upon the stock, given by the foreign law, for a debt due from a stockholder, is a good defence here to an action by his assignee. Bishop v. Globe Co., 135 132. 126. But a creditor cannot maintain an action here, to enforce the personal liability of a stock- holder or an officer, created by the foreign law. CONFLICT OF LAWS, III, (6)— CONFUSION. 219 Erickson v. Nesmith, (15 G.) 81 221; Erickson v. Nesmith, (4 A.) 86 233; Halsey 1). McLean, (12 A.) 94 438. 127. A bill in equity will not lie here, in favor of a resident of Alabama, against a New York life insurance company, to restore him to his rights, under a policy forfeited for failure to pay premiums. Smith v. Mutual L. Ins. Co., (14 A.) 96 336. 128. As to real property within this Com- monwealth, the foreign charter, and the amend- ments, etc., by the foreign statute, must yield to our statutes. Atty .-Gen'l v. Boston & M. E. R. , 109 99. 129. A joint-stock company, formed under the New York statutes for that purpose, is a co- partnership, not a corporation; and the pro- vision of that statute, that actions must be brought in the first instance against the associ- ation through its officers, is not binding here Taft i>. "Ward, 106 518; Bodwell v. Eastman, 106 525; Gott v. Dinsmore, 111 45; Boston & A. B. R. v. Pearson, 128 445. 130. And a person, who has signed the sub- scription paper, is liable for a debt contracted by the association, although the subscription was never fully made up, and the defendant never signed the articles of association, or had any certificate for his stock. Boston & A. R. R. ». Pearson, 128 445. 131. An English fire insurance company, some of whose members are citizens of this Commonwealth, and others British subjects, which, although not incorporated, has, by act of Parliament, certain rights not appertaining to a partnership, is taxable here as a partnership, not as a corporation. Oliver v. Liverpool, etc., Ins. Co., lOO 531. 132. For a ruling, that the Samana Bay Com- pany, a corporation chartered by the Dominican republic, had been dissolved by a decree of a revolutionary government de facto, so that a judgment against it, subsequently rendered in New York, was void, and laid no foundation for a bill to enforce the liability of a stock- holder, see Remington & Sons v. Samana Bay Co., 140 494. Confusion and accession of chattels. [See, also. Attachment; Chattel Mortgage, III ; Execution, II.l 1. Where goods, exempt from attachment or execution, are so mingled with other similar goods, not exempt, that the officer cannot dis- tinguish them, it is the duty of the owner to give notice to the officer that he claims the sta- tutory exemption. Copp ». WifHams, 135 401. See, also, Nash v. Farrington, (4 A.) 86 157; Clapp v. Thomas, (5 A.) 87 158; Steven- son v. "White, (5 A.) 87 148; Eager u. Taylor, (9 A.) 91 156; Woods «. Key es, (14 A.) 96 236. 2. But this doctrine is not applicable to arti- cles, which have a separate identity, and are easily to be distinguishable from all others, as articles of household furniture, animals, and the like. Copp «. Williams, 135 401. See, also, Stickney «. Davis, (16 P.) 33 19; Savage v. Davis, 134 401. Nor to a holder of a mortgage of all the chat- tels on the premises, with a proviso that it shall also cover after acquired chattels. Harding v. Coburn, (12 Met.) 53 333. 3. Where As goods are so mixed with B's, that an officer, holding an attachment against B, cannot, after due inquiry, distinguish them, the officer is not liable if he attaches all; but if he knowingly sells them all under an execution as B's goods, this is a conversion as to A's. Bond v. Ward, 7 123; Shumway v. Rutter, (8 P.) 25 443. 4. And the officer and the creditor are liable for attaching all the goods, without due inquiry. Smith v. Sanborn, (6 G.) 72 134; Carlton v. Davis, (8 A. ) 90 94; Davis v. Stone, 117 486; Davis v. Stone, 120 228. 5. A mortgagee may enforce a mortgage upon part of the goods, constituting an entire stock in trade of the mortgagor, against an officer at- taching all as goods of the mortgagor, if he can identity them, and point them out to the officer; and, if the officer sells, without paying the debt, after demand by the mortgagee, he cannot in- sist that the mortgagee is unable to point them out. Morrill ii. Keyes, (14 A.) 96 222; Polsom «. Clemence, 111 273. 6. Where A mixes his goods with B's, with intent to mislead B, and to prevent him from taking his goods without also taking A's, he has no remedy against B for taking all; but if he honestly supposed all were his, and B knew that part were A's, B is liable. Ryder v. Hathaway, (21 P.) 38 298. 7. Where a mortgagor mixes the mortgaged goods with his own, so that they are unclistin- guishable, and sells them, the mortgagee may recover all the goods, or their value, from the purchaser, or a consignee who sold them. Willard *. Rice, (11 Met.) 52 493; Simpson «. Carleton, (1 A.) 83 109; Adams ». Wildes, 107 123. 8. Where an officer allows attached goods to be mingled with other goods of the debtor, and refuses to point them out to another attaching officer, the latter may attach all. Sawyer ». Merrill, (6 P.) 23 478. 9. Where a person mingles goods, acquired by him under a fraudulent sale, with other goods subsequently purchased, he cannot re- cover the value of the latter against an officer attaching all, if the mingling was done pur- posely, or through want of proper care. Stearns v. Herrick, 132 114. 10. One who hires the stock of a decedent's farm from the widow, without appointment of ac administrator, acquires no title to the in- crease of the animals, or the produce of the farm. Poster v. Gorton, (5 P.) 22 185. 11. A cloth covering of the bed of a billiard table, which can be removed, without injury to the table, is not so inseparable but that it may be removed, as against the owner, by one who was induced, by fraudulent representations of 220 CONFUSION— CONSPIRACY, I. a partner of the keeper of the billiard room, to sell it to such partner. Perkins v. Bailey, 99 61. , [See, also, Fixtures, I.] 12. Where there is a mortgage or pledge of personal property, and the property, bting un- finished, is afterwards finished by the mort- gagor or pledgor, or repairs, changes, or addi- tions are made by him to it, which do not change the nature of the article, the accession passes to the mortgagee or pledgee. Sumner «. Hamlet, (12 P.) 29 76; Harding v. Coburn, (12 Met.) 53 333; Putnam «. Cushing, (10 G.) 76 334; Crosby v Baker, (6 A.) 88 295; Corn- ins v. Newton, (10 A.) 92 518. 13. So of the sale of an unfinished article. Glover v. Austin, (6 P.) 23 209. 14. Where one converts the materials of an- other, at his request, into a manufactured arti- cle, the property remains in the owner of the materials, although the manufacturer has added materials of his own. Eaton v. Lynde, 15 242; Stevens v. Briggs, (5 P.) 22 177. Consanguinity. [See Alien; Bastard, I; Descent and Distri- bution, I, II; Judge; Jury, I, (1); II, (3).] Consideration. [See Bill of Exchange, etc, I, (6) ; Contract, II; Deed, I, (2). Consignment. [See Agency, V, Q)\ Attachment; Bill oe Lading; Shipping, III, (3).] Conspiracy. I. Chimtnai, Proceedings. II. Action fob Damages. [See, also. Cheat; False Pretences.] I Criminal Proceedings. [As to the sufficiency of an indictment for con- spiracy, see Indictment, VIII, (20).] 1. For rulings, under the act of April 13, 1779, entitled " An act to confiscate the effects of certain notorious conspirators, against the government and liberties of the inhabitants of the late province, now State, of Massachusetts Bay," see Cuttsa. Comm., 2 284. 2. The general rules of the common law, nuking conspiracy an indictable offence, were continued in force by Ch. VI, art. 6, of the constitution. Comm. v. Hunt, (4 Met.) 45 111. 3. To constitute an indictable conspiracy there must be a combination of two or more persons, by some concerted action, to accom- plish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful, by criminal or unlawful means Comm. ■». Hunt, (4 Met.) 45 111. ' 4. The definition or description of the offence is left to the common law; the words " crimi- nal or unlawful " are used, because many acts are unlawful, which are not punishable by in- dictment; and yet a combination by numbers to do them would be an unlawful conspiracy, and punishable by indictment. Comm. v. Hunt, (4 Met.) 45 111; Comm. v. Waterman, 122 43. 5. A combination to destroy a person's repu- tation, by verbal calumny, not indictable; or to persuade a young female to leave her parents' house for prostitution, is an indictable conspi- racy. Comm. v. Hunt, (4 Met.) 45 111. 6. A conspiracy to cheat by false pretences, without false tokens, is indictable at common law, though such a cheat by one person is not. Comm. v. Boynton, cited in (4 Met.) 45 7. So is a conspiracy to obtain goods upon credit, then to abscond and defraud the vendor. Comm. v. Ward, 1 473. See, also, Comm. v. Eastman, (1 C.) 55 189; Cheat, arts. 3, 4, 8. Or to manufacture base and spurious in- digo, and sell it as genuine, although no sale is made. Comm. v. Judd, 2 329. 9. Or to induce a witness to go to another state and testify falsely. Comm v. Smith, (11 A.) 93 243. 10. Or to cause a former marriage falsely to appear, with intent to prevent one from con- tracting a marriage. Comm. v. Waterman, 122 43. 11. Or for a man and woman to marry, by the use by the man of the name of another, in order to raise a spurious title to the tatter's estate. Comm. v. Waterman, 122 43. 12. Or to procure the recognition upon the stock exchange of the stock of a spurious company. Comm t> Waterman, 122 43. 13. Or to procure the election of certain per- sons, as directors of an insurance company, by issuing false policies. Comm. v. Waterman, 122 43. 14. A conviction may be had, under an in dictment for conspiracy to commit an offence, although an offence of a higher grade was com- mitted by the defendant. Comm. «. Walker, 108 309. See, contra, Comm. ». Kingsbury, 5 106. 15. Where an unlawful conspiracy is entered into, all conversations with, or other acts done by, any of the parties, in pursuance of the combination, although apart from the others, are in law the acts of all. _ Comm. v. Crowninshield, (10 P.) "7 497; Comm. v. O'Brien, (12 C.) 66 84; Comm. v. Brown, (14 G.) 80 «9; Comm. v. Waterman, 122 43. 16. The question of the existence of the common purpose is primarily to be passed upon by the court, for the purpose of deciding upon CONSPIKACY, I; II. 221 the admissibility of the evidence; but is ulti- mately to be decided by the jury. Comm. v. Brown, (14 G.) 80 419. 17. The rule extends to acts, done after the purpose of the conspiracy had been accom- plished. Comm. v. Scott, 123 222. 18. Where two are indicted for a conspiracy to cheat, and the guilt of one is clearly proved, evidence that the other was present when the fraud was consummated, and afterwards sold part of the goods, under » fictitious name, suffices to go to the jury. Comm. ■». Warren, 6 74. 19. An indictment for a conspiracy to defraud A of a promissory note fails, if A is a married woman, to whom the note was given, as her distributive share in an intestate's estate; for it is her husband's. Comm. v. Manley, (12 P.) 29 173. 20. An indictment for a conspiracy to defraud A fails, if the intent was to defraud the public generally, or any one whom the conspirators might be able to defraud. Comm. i). Harley, (7 Met.) 48 506. 21. So where the conspiracy charged was to defraud an insurance company, and the proof showed knowledge of the insurance by that company, only after the act. Comm. v. Kellogg, (7 C.) 61 473. 22. Upon the trial of an indictment for con- ■ spiracy to cheat and defraud one of his goods, after evidence of a purchase, ostensibly for cash, but v really on the short credit resulting from cash sales, the government may produce witnesses as to the defendant's credit and stand- ing, and as to other purchases from other per- sons, about the same time, and under the same circnmstances, and procuring bills of lading, etc. Comm. v. Eastman, (1 C.) 55 189. 23. It is not a bar to an indictment against A and B, for a conspiracy to accuse A's wife of adultery with B, that A procured a divorce from his wife, on a charge of that adultery, and that she set up the same conspiracy as a defence. Comm. v. Nichols, 134 531. 24. If a conspiracy to commit extortion, by an accusation of adultery, is sufficiently charged in one count, and to accuse one of adultery is insufficiently charged in another, a general verdict of guilty will not be set aside. Comm. i). Nichols, 134 531. II. Action for Damages. 25. For rules of the common law, now obso- lete, limiting the cases in which this action lies, see Livermore v. Herschell, (3 P.) 20 33; Parker v. Huntington, (2 G.) 68 124. 26. A declaration against two or more, which sets out an injury actionable in itself, is not rendered objectionable by an insufficient allega- tion of a conspiracy to commit the injury; and such an allegation may be rejected as sur- plusage. Parker v. Huntington, (2 G.) 68 124; Hayward v. Draper, (3 A.) 85 551. 27. But where the injury is not in itself actionable, the declaration must allege a con- spiracy; and if the plaintiff proves all his allegations, except the conspiracy, he must fail. Wellington «. Small, (3 C.) 67 145. See, also, Talbot t>. Cains, (5 Met.) 46 520. 28. An allegation in a declaration of con- spiracy, illegality, falsehood, and malice, will not support an action, unless the purpose in- tended, or the means whereby it was to be accomplished, are unlawful. Bowen v. Matheson, (14 A.) 96 499; O'Callahan «. Cronan, 121 114. 29. An action lies against two or more per- sons, who, by concert of action, fraudulently and by false pretences, induce the plaintiff to leave his business and his home, and travel into another state. Cooks. Brown, 125 503. 30. Where the object was to have been ar- rested, and compel him to settle a disputed claim, it is no defence that he did not plead the illegality of his arrest. Cook ». Brown, 125 503. 31. A declaration against three, charging a conspiracy to obtain goods by their fraudulent representations, is sustained by proof of repre- sentations made by one only, in pursuance of a previous combination among all. Livermore «. Herschell, (3 P.) 20 33. 32. An action lies, in favor of a creditor of a firm, against one partner and the latter's indi- vidual creditor, for a conspiracy, whereby the partner gave his creditor a note in the name of the firm, in order that the creditor might attach and sell the goods of the firm, which was done, and the plaintiff's debt lost in part. And the action may be maintained, although the plain- tiff's debt was not due when the conspiracy was made, and after he attached and recovered judgment, he did not deliver an execution within 30 days. Adams v. Paige, (7 P.) . 24 542. 33. It is no defence to an action for a con- spiracy in obtaining money by false pretences, that the defendant intended to repay it. Spaulding v. Knight, 116 148. 34. An action may be maintained against one, for conspiring with another, to ensble the latter to obtain money from the plaintiff, by means of a forged note. Spaulding v. Knight, 116 148. 35. It is no defence to the action, that the plaintiff relied upon other securities given by the borrower, or upon the defendant's repre- sentations as to the borrower's ability to pay, if he relied also upon the forged note. Spaulding v. Knight, 116 148. 36. The defendant is liable, if he had reason- able cause to believe, although he might not have known, that the note was forged, and although he said that he knew nothing about it, or the maker of it. Spaulding v. Knight, 1 16 148. 37. An action for a conspiracy will not lie, in favor of a shipping master, against persons forming an association to control that business, by endeavoring io prevent seamen from ship- ping in any vessel, where any of the crew are shipped from houses not in the association, etc. ; and who accordingly take their men out of ships where the plaintiff's men are, refuse to ship with him; and otherwise prevent him 222 CONSTABLE— CONSTITUTIONAL LAW, L from getting seamen to ship, and thus injure his business; those acts not being illegal. Bowen v. Matheson, (14 A.) 96 499. 38. An action lies in favor of an actor, for a combination to hiss him, etc., so as lo prevent the manager from employing him. Carew v. Rutherford, 106 1. 39. A conspiracy against one, who is under the necessity of employing workmen in his business, to obtain money from him, by induc- ing his workmen to leave him, and deterring others from entering into his employment, or bv threatening so to do, whereby he is induced to pay the money, is an illegal if not a criminal conspiracy; and money thus obtained may be recovered back. And an action for damages lies for any injury to his business. Carew p. Rutherford, 106 1. 40. One cannot maintain an action for a con- spiracy between the defendant and a third per- son, whereby judgment was obtained against the plaintiff in another state, and his property sold thereunder, where the foreign court had jurisdiction, and the plaintiff appeared therein. Engstrom ■». Sherburne, 137 153. Constable. [See, also, Arrest; Bond, II, (2); Constitutional Law, III; Office and Officer; Police Officer; and the titles of the various kinds of process, etc.] 1. The office of constable is not incompatible with that of justice of the peace. Comm v. Kirby, (2 C.) 56 577. 2 Originally the duty of constables was to keep the peace; and they have no authority to serve civil process, except such as is expressly conferred upon them by statute. Leavitt «. Leavitt, 135 191. 3 And neither a constable nor a private per- son has authority to serve the process issuing upon a libel for divorce, unless by special order of the court. Brown v. Brown, 15 389; Leavitt v. Leavitt, 135 391. 4. In replevin, a constable can serve the writ, if the agreement or appraisal establishes the value at less than $300, the determination of the value being preliminary to the service; and the value alleged in the writ is not conclusive. Litchman v. Potter, 116 371. 5. A constable may, upon a ca/pias issued by a district court, in a criminal cause, arrest a person, without his town, but within the county. Sullivan «. Wentworth, 137 233. 6. For rulings as to the authority of a con- stable to serve process, under statutes super- seded by the G. S. and the P. S., see Hart v. Huckins, 5 260; Hart v. Huckins, 6 399 ;Briggs«. Strange, 17 405; Conner v. Palmer, (13 Met.) 54 302; Meacham v. Fitchburg R. R., (4 C.) 58 291; Tilley v. Damon, (11 C.) 65 247. Constitutional law. I. Genebal Rules. II. The Constitution op the United States. (1.) Impairing the obligation of contracts (2.) Ex post facto statutes. (3.) Inter-state commerce. (4.) The militia. (5.) Fugitives. (6.) Records, etc., of another state. (7.) Other matters. III. The Constitution of Massachusetts. (1.) The governor and the governor's council. (2.) The legislature. (3.) Courts; judges; legislative exercise of judicial power. (4.) Statutes impairing vested rights. (5.) Statutes taking or otherwise affecting pri- vate property. (6.) Taxation and other burdens. (7.) Rules of evidence. (8.) Trial by jury. (9.) Holding to answer for an offence. (10.) Unreasonable searches and seizures. (11.) Other matters. [See, also, Attorney-General; Conflict op Laws : Courts ; Customs, etc. ; Habeas Corpus ; General Court; Internal Revenue (U. S); Judge ; Jurisdiction ; Militia ; Pardon ; Post- Office; Removal of Cause; Statute; Supreme Court of he United States ; Supreme Judicial Court ; United States Forces. As to the consti- tutionality of statutes upon particular subjects, see, also, the titles of those subjects respectively.] I. General Rules. 1. The construction of provisions or words of doubtful import in the constitution, by the legislature, as given in the statutes, ought to have great weight, and is not to be overruled unless manifestly erroneous. But neither usage for any length of years, nor any number of legislative acts, will sanction a violation of the fundamental law, clearly expressed or neces- sarily understood. Kendall «. Kingston, 5 524; Barnes v. Falmouth, 6 401; Portland Bk. v. Ap- thorp, 12 252; Adams v. Howe, 14 340; Cobb d. Kingman, 15 197; Comm. v. Parker, (2 P.) 19 550; A re Welling- ton, (16 P.) 33 87; Opinion of the Justices, 126 557. 2. "Where an enlarged sense of a particular form of expression is necessary to the conven- ient exercise of a fundamental privilege, ex. gr., that of election, such construction must be adopted. Henshaw v. Foster, (9 P.) 26 312. 3. "Where there are two legal or constitutional modes of performing a duty, or exercising a right, the use of one, for any length of time, will not invalidate the other. Henshaw v. Foster, (9 P.) 26 312. 4. A statute is not unconstitutional, unless it affects some vested right. Thus, statutes affect- ing tenures and interests of persons unborn, or having remote expectations, or uncertain rights, are constitutional. Clarke «. Cordis, (4 A.) 86 466:SewaIl «. Roberts, 115 262. LSeej><. Portland, 4 384; Hampshire «. Franklin, 16 76; "Whitney v. Stow, 111 368; Stone v. Charlestown, 114 214. 12. So of the statutes abolishing school dis- tricts, and imposing their debts upon towns. "Whitney v. Stow, 111 368; Rawson v. Spencer, 113 40. 13. The charter of, or other privilege or right, granted by act of the legislature, to,. a private corporation, is within the protection of this clause of the U. S. constitution; and the rights thereby granted to the corporation cannot be impaired by a subseqent statute, "Wales «. Stetson, 2 143; Nichols ». Bertram, (3 P.) 20 342; Hardy v. "Wal- tham, (7 P.) 24 108; Op'n of the Jus- tices, (9 C.) 63 604; Comm. «. New Bedford Bridge, (2 G.) 68 339; Boston & L R. R. ». Salem & L. R. R., (2 G.) 68 1; Comm. v. Essex Co., (13 G.) 79 239; Harvard College v. Boston, 104 470. See, also, Bridge, I, (1).] 14. But the charter of a corporation does not exempt its property, or the use of its property, from the control of the legislature, by acts of general application, enacted in the exercise of its police power, for the security of the public health, morals, safety, or comfort, although the statute practically amounts to a prohibition. Browns. Penobscot Bk., 8 445; Ded- hamBk. v. Chickering, (4 P. ) 21 314; Charles R. Bridge v. "Warren Bridge, (7 P.) 24 344; Comm. v. Farmers' & Mechs. Bk., (21 P.) 38 542; Lanesborough Cong. Soc. «. Curtis, (22 P.) 39 320; Comm. d. Alger, (7 C.) 61 53; Opinion of the Justices, (9 C.) 63 604; Middle- sex R. R. i). Wakefield, 103 261; Sohier v. Trinity Church, 109 1; Comm. ■». Intoxicating Liquors, 115 153; "Wood- lawn Cemetery «. Everett, 118 354; Comm. a. Hamilton Man. Co., 120 383. [Comm. v. Intoxicating Liquors, 115 153, was affirmed by the U. S. supreme court, sub nom , Boston Beer Co. v. Massachusetts, 97 U. S., 25. See, also, 11 Peters, 420; 105 U. S., 13.] 15. A provision in the charter of a bridge company, that certain towns shall never be compelled to support any part of the road or bridge, is not a contract between the Common- wealth and those towns; and it may be altered, 27. at the pleasure of the legislature. Brighton v. "Wilkinson, (2 A.) 84 16. Statutes relating to remedies are not within the prohibition. Foster v. Essex Bk., 16 245; Comm. v. Cochituate Bk., (3 A.) 85 42. 17. A reservation of the right to alter, amend, or repeal the charter of a corporation, contained, either in the charter itself or in a general act, reserves to the legislature the authority to make any amendment or alteration of a charter sub- ject to it, which the legislature shall deem pro- per, either by direct amendment, or by a general act, or by a special act applying to the particu- lar corporation. Inland F. Com'rs v. Holyoke "Water P. Co., 104 446; affl'd by U. S. Supreme Court, 15 "Wall., 500; "Worcester v. Norwich & "W. R. R., 109 103; Thornton v. Marginal Freight R.W., 123 32. See, also, Roxbury i>. Boston & P. R. R., (6 C.) 60 424; Mass. Gen'l Hospital v. State Ass. Co., (4 G.) 70 227; Fitchburg R. R. ». Grand Junction R. R., etc., ( o., (4 A.) 86 198; Comm. «. Eastern R. R., 103 254; Parker v. Metropolitan R. R., 109 506; Metropolitan R. R. v. High- land R. "W., 118 290. 18. A license, granted by authority of a sta- tute, is not a contract, but a mere authority, ana is subject to any subsequent acts of the leg- Calder v. Kurby, (5 G.) 71 597; Comm. v. Brennan, 103 70; Moran v. Goodwin, 130 158; Comm. ». Kinsley, 133 578. [As to the effect of a license under the U. S. Inter- nal Revenue laws, and the constitutionality of the statutes relating to intoxicating liquors, see Intox- icating Liquors, I, (2).") 19. Statutes of limitation applicable to exist- ing causes of action, are not within this clause 224 CONSTITUTIONAL LAW, II, (1), (2), (3), (4). of the TJ. S. constitution, if a reasonable time is allowed, after the enactment, to bring suits thereon. Call «. Hagger, 8 423; Smith v Mor- rison, (22 P.) 39 430;Bigelown.Bemis, (2 A.) 84 496. 20. Semble, that the legislature cannot con- stitutionally so change the limitation, as to give a right of action upon a demand already barred. Bigelow v. Bemis, (2 A.) 84 496; Prentice v. Dehon, (10 A.) 92 353; Ball v. Wyeth, 99 338. 21. An act of the legislature, in the exercise of the right of eminent domain, appropriating for public use, on payment of a full equivalent, property or rights of property, granted by the State to individuals, is not within this clause of the U. S. constitution. Boston Water P. Co. v. Boston & W. R. R.,(23P.) 40 360; Haverhill Bridget). Essex Com'rs, 103 120. 22. A state legislature may constitutionally enact a bankrupt or insolvent law, discharging debtors from debts incurred after the enactment of the law, but not from those previously in- curred. Baker v. Wheaton, 5 509; Blanchard v. Russell, 13 1; "Walsh «. Farrand, 13 19; Kimberly ®. Ely, (6 P.) 23 440; Betts v. Bagley, (12 P.) 29 572; Bige- low 0. Pritchard, (21 P.) 38 169. [As to the effect of such laws upon debts due to citizens of other states, see Cohfjlict op Laws, III, (5).] (2.) Ex post facto statutes. 23. The provision of the TJ. S. constitution, prohibiting a state from enacting an ex post facto statute, applies only to statutes relating to crimes, and offences in the nature of crimes. Locke v. Dane, 9 360. 24. It does not prohibit imposing an increased penalty for a second offence, thereafter com- mitted, although the first offence was committed before the enactment of the statute. Aliter, if the second offence was previously committed. In re Ross, (2 P.) 19 165; In re Riley, (2 P.) 19 172; Comm. v. Phillips, (11 P.) 28 28. 25. It does not prohibit the creation of a new tribunal, with jurisdiction over offences pre- viously committed. Comm. v. Phillips, (11 P.) 28 28. 26. Or allowing a writ of error on a judg- ment previously rendered. Jacquins v. Comm , (9 C ) 63 279. 27. Or the mitigation of the punishment, prescribed for an offence previously committed. Comm. b. Wyman, (12 C.) 66 237; Comm. v. McKenney, (14 G.) 80 1. 28. Or legalizing the proceedings of a grand jury, irregularly constituted, with respect to indictments previously found. Comm. v. Brown, 121 69. [See, iso, TATCTE, it, (3).] (3.) Inter-state commerce. 29. Under the TJ. S. constitution, a state has no power to prescribe different regulations in relation to tho commerce in certain articles, de- pendent upon the state from which they are brought; but this rule does not limit the power of a state to enact appropriate health or inspec- tion laws, which are uniform, and not depend- ent upon place. Higgins ■o. Casks of Lime, 130 1. 30. The statute, G. S., Ch. 49, §§ 122-184, as to lime imported from Maine, was unconsti- tutional. [Amended, see P. S., Ch. 60 SS 46-52.] 8S Higgins io. Casks of Lime, 130 1. 31. The state may make any suitable regula- tions for the convenient and safe use, within its limits, by persons having equal rights therein, of a navigable river passing also through other states. Harrigan v. Conn. R. Lumber Co., 129 580. 32. So G. S., Ch. 78, § 5; P. S., Ch. 94, § 5, is constitutional, even as to logs coming by the Connecticut River from one state, and passing through this Commonwealth to another state. Harrigan v. Conn, R. Lumber Co., 129 581. (4.) Tbe militia. [See, also. Militia.] 33. The State has the right to determine as to the existence of the exigencies contemplated by the TJ. S. constitution, where the militia may be called into the TJ. S. service. Opinion of the Justices, 8 548. [Overruled by the U. S. Supreme Court. Martin ». Mott, 12 Wheat., 19.] 34. The m litia thus employed cannot be commanded by any United States officer, except the president. Opinion of the Justices, 8 548. 35. Congress has powir to determine who constitute the militia, and who are exempted from service; and where it has exercised the power, the state cannot provide for the enroll- ment of any other persons. Comm. v. Douglas, 17 49; Cousins «. Cowing, (23 P.) 40 208; Opinion of the Justices, (14 G.) 80 614. . 36. As to the constitutionality, effect, and interpretation of the state laws for regulating, training, and disciplining the militia, while the acts of congress upon that subject were in force, see Savage «. Gulliver, 4 171; Pratt s. Hall, 4 239; Winslow ». Anderson, 4 376; Hussey v. Lord, 4 378; Comm. «. Annis, 9 31; Comm. c. Bullard, 9 270; Comm. v. Richardson, 13 220; Comm. ii. Derby, 13 433; Haynes «. Jenks, (2 P.) 19 172; Ex parte Adams, (4 P.) 21 25; Sherman v. Needham, (4 P.) 21 66; Opinion of the Justices, (22 P.) 39 571. 37. As to the meaning and effect of the pro- vision of the act of congress, that mariners, etc., shall be exempted from military duty, set Pratt i>. Hall, 4 239; Comm. v. .New- comb, 14 394; Comm. ■». Douglas, 17 49; Bayley v. Merritt, (2 P.) 19 597. 38. The act of congress, exempting post- masters, does not include an assistant post- mftstpr Slater . Flagg, (2 P.) 19 448. 52. A judgment in another state, against two defendants, upon process served upon one only, with an award of execution against the property of both, will support an action here against the defendant served; but only upon proof that such a judgment is regular in that state. It will not support an action against the other defend- ant. Phelps v. Brewer, (9 C.) 63 390; Knapp v. Abell, (10 A.) 92 485; Wright v. Andrews, 130 149. 53. A judgment in another state, recovered by service of process upon the agent of the de- fendant, a foreign insurance company, pursu- ant to a statute of that state, will be enforced here. Gillespie v. Commercial Ins. Co., (12 G.) 78 201. 54. A duly certified copy of the record, show- ing service of process, cannot be contradicted by another certified copy, failing to show such service. Barringer v King, (5 G.) 71 9. 55. The defendant may show by oral testi- mony, that he was not personally served. Carleton v. Bickford, (13 G.) 79 591; McDermott v. Clary, 107 501. 56. But not that the plaintiff took an assign- ment without consideration, to prevent the re- moval of the cause to a U. S. court. Goodrich v. Stevens, 116 170. 57. The decree of a probate court in another state, admitting a will to probate, is conclusive evidence here, if the court had jurisdiction, of the validity of the will. 226 CONSTITUTIONAL LAW, II, (6), (7). Dublin ». Chadbourn, 16 433; Crip- pen v. Dexter, (13 G.) 79 330. 58. And this, although the will is that of a married woman, and relates to real property here, if it has been filed and allowed under our statute. Parker v. Parker, (11 C.) 65 519. 59. The mode of authenticating records, pre- scribed by the U. S. statutes, is not exclusive, and our statute on the subject is constitutional. Kingman v. Cowles, 103 283. [For rulings as to the sufficiency and effect of such authentication, see EviDEncE, V III.] (7.) Other matters. 60. A tax upon alien passengers is constitu- tional. \ Norris v. Boston, (4 Met.) 45 282. [Reversed by TJ. S. supreme court, 7 How.. 283.] 61. An act of the legislature for constructing a bridge over navigable waters, within this Commonwealth, is not unconstitutional, as in- terfering with the power of congress to regu- late commerce. Comm. ». New Bedford Bridge, (2 G.) 68 339. [See, also, Bridge, II, (1).] 02. In the exercise of its right of eminent do- main, a state may consent that the United States shall take and hold land for a public building, and have the valuation thereof made by a jury; and that the fee thereof shall vest in the United States, upon the conditions prescribed in the statutes of the state. Burt*. Merchants' Ins. Co., 106 8S6; Burt v. Brigham, 117 307. [See, also, Eminent D jmain.] 63. The provision of the act of congress, su- peradding state courts to the U. S. courts, as the tribunals empowered to naturalize aliens, imposes no legal obligation to execute those powers; and the statute of this Commonwealth, restricting its courts from naturalizing, is con- stitutional. Me 'parte Stephens, (4 G.) 70 559. 64. A state may constitutionally regulate, by statute, the time and manner of taking fish in the sea, within its territorial limits; and such a statute binds vessels enrolled and licensed under the U. S. laws Dunham ». Lamphere, (3 G.) 69 268. 65. The provision of the U. S. bankrupt act of 1841, for voluntary bankruptcy, was consti- tutional. Thompson v. Alger, (12 Met.) 53 428. 66. The power granted by the U. S. consti- tution to congress, to pass uniform bankruptcy laws, does not exclude a state from the power of passing bankruptcy and insolvent laws; but where a bankrupt law is passed by congress, the state insolvent laws are suspended, as far as they are applicable to the same cases; and upon, the repeal of the act of congress, they are re- vived. Judd v. Ives, (4 Met.) 45 401; Gris- wold v. Pratt, (9 Met.) 50 16; Day v. Bardwell, 97 246; Lothropa. Highland P. Co., 128 120; Lyman °>. Bond, 130 291. t [See, also, Contlici of Laws, III, (5).J 67. The statute requiring a hawker and ped- dler to take out and pay for a license, is not repugnant to the U. S. constitution. Qu., whether a statute would not be so repugnant! which required a license for any one to sell im- ported goods. Comm. v. Ober, (12 C.) 66 493. 68. TSTor are the acts, requiring licenses tor the sale of intoxicating liquors, and otherwise regulating the sale of such liquors, unconstitu- tional. Comm. v. Kimball, (24 P.) 41 359- Comm. v. Clapp, (5 G.) 71 97. [Accord, Thurlow v. Massachusetts, 5 How.. 604.1 69. The act of congress of 1815, allowing the removal of certain actions from a state court, after judgment, is unconstitutional. Wetherbee v. Johnson, 14 412. [See, also. Removal of Cause.] 70. A statute of a state, the effect of which would be to impose a penalty for carrying the mail on Sunday, would be unconstitutmal. Comm. v. Knox, 6 76. 71. Counterfeiting the coins of the United States, or having them in possession, with in- tent to utter them, may be constitutionally made punishable by a state law, although also punishable by act of congress. Comm. v. Puller, (8 Met.) 49 313. 72. The eighth article of the amendments to the U. S. constitution, prohibiting excessive bail, cruel and unusual punishments, etc., does not apply to the states. Comm. v. Hitchings, (5 G.) 71 482; Comm. v. "Whitney, 108 5; irare Allen, 126 224. 73. The U. S. constitution does not prevent a married woman, driven from her home in another state by her husband's cruelty, from suing as a feme sole. Abbot v. Bayley, (6 P.) 23 89. 74. Congress has the constitutional power to establish national banks, and to exempt the shares thereof from taxation, in any state other than those where they are respectively located. Flint 1>. Boston, 99 141. 75. Unless prohibited by act of congress, a state may tax shares in a national bank, and may authorize the taxation thereof in the city or town where the owner resides. Austin v. Boston, (14 A.) 96 3S0. [See, also, 7 Wall., 694.1 76. The act, St. 1868, Ch. 349, for taxing na- tional bank shares, owned by nonresidents, was constitutional. Providence Inst'n, etc. v. Boston, 101 575. 77. That act did not apply to a mutual life insurance company, holding shares in a national bank. Murray ®. Berkshire Ins. Co., 104 586. [See, also Bank, II. j 78. The separation of Maine from Massachu- settes had no effect on vested rights of parties. Belfast v. Leominster, (1 P.) 18 123. 79. One state of the Union has no right, in time of insurrection and civil war therein, to send her troops across the borders of another CONSTITUTIONAL LAW, III, (1), (2). 227 state, to capture rebels, etc.; or in any other case except that of necessity, for the defence of the state, or of the lives and property of its citizens: and of that necessity the jury, upon the trial of an indictment against the persons so entering, are the judges. Comm. v. Blodgett, (12 Met.) 53 56. TTT, The Constitution op Massachusetts. [For rulings upon the provision forbidding one from being twice put in jeopardy for the same offence, see Former Adjudication, IJ CI .) The governor and the governor's council. [As to a warrant to apprehend a fugitive from another state, under the state law and the act of congress, see ante, II, (5).] 80. Under the constitution, before the amend- ment of 1855, the two branches of the general court had the power to fill vacancies in the council, occurring by death or resignation. Opinion of the Justices, 14 470. 81 And a member of the house of represen- tatives was eligible to the council, to make up a deficiency in the number of those chosen. Opinion of the Justices, (3 P.) 20 517. 82. As to the effect of the amendment of 1855, upon councillors then in office, and elected in 1856, see Opinion of the Justices, (3 G.) 69 601. 83. The former statute, allowing a sentence of death to leave the time of execution to be fixed by the governor and council, was constitu- tional. Costley v. Comm., 118 1. tSee, now. St. 1876, Ch. 166; P. S., Ch. 215, §§ 32, 33.] 84. For rulings under that statute, see Webster v. Comm., (5 C.) 59 386; Opinion of the Justices, (11 C.) 65 604. 85. The power of pardoning, conferred by the constitution upon the governor and council, is exclusive, and the legislature cannot commute a sentence. Opinion of the Justices, 14 472. 86. The governor, with the advice of the council, may grant a pardon, after a verdict of guilty, and before sentence, and while excep- tions are pending; and the convict, on waiving the exceptions and pleading the pardon, must be discharged. Comm. ■». Lockwood, 109 323. 87. But a pardon cannot be granted before conviction. Perkins v. Stevens, (24 P.) 41 277; In re Kennedy, 135 48. 88. The power of pardoning includes that of mitigating the sentence, or granting a condi- tional pardon, either to take effect upon a condition precedent, or to become void upon a condition subsequent. In re Kennedy, 135 48. _ 89. P. S„ Ch. 218, §§ 12-14, providing that, if the condition of a pardon is violated, the governor and council may remand the convict to serve out his unexpired term, is constitu- tional; and he may be so remanded, without an opportunity to be heard. In re Kennedy, 135 48. 90. Now the time between the conditional pardon and the subsequent arrest is not taken as part of the term; aliter, under the former statute. In re "West, 111 443; In re Ken- nedy, 135 48. 91. In a capital case, a memorandum by the jurors of the grounds of the verdict, or recom- mending the prisoner to mercy, is no part of the proceedings required to be transmitted; and if they are transmitted, the weight to be given to them rests entirely in the discretion of the governor and council. Opinion of the Justices, 120 600. 92. A pardon, remitting the residue of a sen- tence, does not restore the convict's competency as a witness. Perkins v. Stevens, (24 P.) 41 277. 93. Semble, that a pardon for an assault is not a pardon for the homicide, if the assaulted party dies afterwards. Comm. v. Roby, (12 P.) 29 496. 94. Under a statute, imposing an additional punishment upon a convict, who had been dis- charged in due course of law from a former sentence, it is sufficient, in an information for such punishment, to aver a discharge in conse- quence of a pardon. Evans v. Comm., (3 Met.) 44 453. 95. The governor and council, or either house of the legislature, may, under the consti- tution, require the opinion of the justices of the supreme judicial court, upon a question, which the body making the inquiry has occa- sion to consider, in the exercise of its legislative or executive powers; but not upon a question, which cannot be affected by legislative or ex- ecutive action, and may arise in the course of judicial administration. Answer of the Justices, 122 600; Opinion of the Justices, 126 557. 96. As to the effect, before the first constitu- tional amendment, of transmitting a bill to the governor, within five days before a recess of the legislature, see Opinion of the Justices. 3 567. 97. A bill is not laid before, or presented to, the governor, within the meaning of the con- stitution, by being sent from either house to the secretary of the Commonwealth; it must be presented to him personally. Opinion of the Justices, 99 636. 98. Where the governor, within five days after receipt of a bill- by him, states his objec- tions in writing, and delivers them to his private secretary, with instructions to return the. bill, with his objections, to the house where it originated; the fact that on the day when the bill and objections are returned, and the latter are dated, he was absent from the Common- wealth, and the lieutenant-governor was per- forming his duties, is immaterial. Opinion of the Justices, 135 594. C2.) The legislature. [See, also, General Coukt. As to the protection of members of the legislature, for words spoken in debate, see Libel and Slander, IV, (4). As to their privilege from arrest, see Arrest, I, (2). As to the persons entitled to vote for them, and the mode of election, see Elections and Electors, 11,(1) J 228 CONSTITUTIONAL LAW, EX (2), (3). 99. The senate has an equal constitutional right, with the house of representatives, to originate an inquiry into the returns from towns, for the purpose of settling questions of taxation. Opinion of the Justices, 126 547. 100. The exclusive privilege of the house of representatives, to originate money bills, is limited to those which transfer money from the people to the state. It does not extend to bills appropriating money from the treasury. Opinion of the Justices, 126 547. 101. An unnaturalized alien is not eligible as a member. Opinion of the Justices, 122 594. 102. But an alien, naturalized within a year, is eligible; and if he has in fact had his home within the district for which he is chosen, for more than a year, he is deemed to have been an inhabitant during the whole year. Opinion of the Justices, 122 594. 103. A town had, under the original constitu- tion, a right to decline being represented, sub- ject to the power of the house to impose a fine lor its neglect. If the town, by a legal corpor- ate act, voted not to send a representative, none could be legally chosen by a minority dissent- ing from tha vote. Opinion of the Justices, 7 523; Opin- ion of the Justices, (3 P.) 20 517. 104. Ratable polls of aliens might, under the original constitution, be reckoned, in determin- ing the number of representatives to which a town was entited. Opinion of the Justices, 7 523. 105. A vacancy in the house of representa- tives, occasioned by the election of a member to the senate or council, may be Idled. Qu., whether it may be, if a member dies, resigns, or removes from the Commonwealth. Opinion of the Justices, (3 P.) 20 517. 106. The legislature has the constitutional power to consolidate or change the boundary lines of counties, towns, or cities, for all pur- poses, except those incident to the election of members of the legislature; and in so doing, it may reserve to the inhabitants the right of vot- ing for members, as before, until the next apportionment, If such a right is not reserved, the change is unconstitutional. Opinion of the Justices, (6 C.) 60 578: "Warren v. Charlestown, (2 G.) 68 84; Opinion of the Justices, (10 G.) 76 613.' [See, also, post, arts. 143, 186; Town and City, I, (2).] 107. The civil service reform act, L. 1884, Ch. 320, is constitutional. Opinion of the Justices, 138 601. 108. The house of representatives has the power to expel a member; and the sufficiency of the reasons for the expulsion, and the question whether the expelled member was heard, can- not be inquired into by a court, upon a question of privilege from arrest. Hiss j. Bartlett, (3 G.) 69 468. 109. As to the general powers of the house of representatives, over its members and officers, its proceedings, and persons guilty of contempt, Per Parsons, Ch. J., in Coffin v. Coffin, 4 1. 110. The supreme judicial court may, upon Tiabeas corpus, inquire into the lawfulness of an. imprisonment by order of the house. Burnham v, Morrissey (14 G.) 80 226. 111. The house has power to compel a wit- ness to attend before it, or before one of its committees, and to punish him for refusal to attend or to testify, or to produce books or papers, by imprisonment for not more than 30' days. Burnham v. Morrissey, (14 G.) 80 226. 112. The order of commiiment is not invali- dated by a direction therein, that the officer shall bring him again before the house, on his professing his readiness to submit. Burnham v. Morrissey, (14 G.) 80 226. 113. For other rulings as to the sufficiency of the commitment, see Burnham*. Morrissey, (14 G.) 80 226. 114. The sergeant-at-arms may lawfully, with the sheriff's permission, imprison in the county jail a person so committed. Burnham •». Morrissey, (14 G.) 80 226. [As to the right of either branch of the legisla- ture to require the opinion of the justices, see ante, art. 95.] (3.) Courts; judges; legislative exercise of judicial power, [See, also, Courts; Judge; JtrRiSDiCTiOH.andthe titles of particular courts.] 115. Where a judge of a court, other than a court of sessions, has been elected to and has- taken a seat in the legislature, the question whether, under the 8th amendment of the con- stitution, ho is qualified to act as judge, cannot be determined upon habeas corpus, sued out by one tried and sentenced by him. In re Sheehan, 122 445. 116. It must be tried by information or by quo warranto, or perhaps by action in favor of the party. In re Sheehan, 122 445; Comm. t, Hawkes, 123 525. 117. A special justice of a police court is within this prohibition. Comm. v. Hawkes, 123 525. 118. The constitution does not prohibit the courts of a county from exercising jurisdiction, where the county is a party. Brown «. Somerset, 11 221. 119. A statute, providing that a judge or juror shall not be disqualified, by reason of his being an inhabitant of the town, for whose benefit a penalty is sued for, is constitutional. Comm. v. Worcester, (3 P.) 20 462; Hill v. Wells, (6 P.) 23 104; Comm. v. Read, (1G.) 67 472. 120. Statutes, transferring jurisdiction from one court to another, or from one judicial offi- cer to another, are not objectionable, as inter- fering with the governor's power to appoint judicial officers. „ . Wales d. Belcher, (3 P.) 20 508;Bnen o. Comm., (5 Met.) 46 508; Russell t. Howe, (12 G.) 78 147; Baker v. Fern- aid, (12 G.) 78 154. 121. Under Const., Ch. 3, art. 1, a judicial officer may be removed by the governor, wiin CONSTITUTIONAL LAW, III, (3), (4). 229 the consent of the council, upon the address of both houses of the legislature, although he is liable to impeachment for the same cause; and the address or the order of removal need not .assign any reasons. Comm. v. Harriman, 134 314. 1C2. A special statute, authorizing a court to decree a divorce between individuals named, is unconstitutional. Simonds v. Simonds, 103 572. 123. So is a statute, declaring two persons to be husband and wife, one of whom has been divorced. "White «. White, 105 325. 124. So is a statute, legalizing an invalid di- vorce. Sparhawk 0. Sparhawk, 116 315. 125. But a statute, modifying the remedy in proceedings for a divorce, by reason of deser- tion, is constitutional, as applicable to a case where no decree has been rendered. Wales 0. Wales, 119 89. 126. A resolution of the legislature, author- izing a particular person to maintain a suit barred by the statute of limitations, is uncon- stitutional. Holden v. James, 1 1 396. 127. So is a resolve, empowering a judge of probate to grant letters of administration to a particular person, upon a bond different from that required by the general laws. In re Picquet, (5 P.) 22 65. 128. So is a statute, confirming proceedings in insolvency, taken before one pretending to act as judge of insolvency, and declared invalid by the court for that cause. Denny v. Mattoon, (2 A.) 84 361; Payerweather ». Dickinson, (2 A.) 84 385, note. [See Walter v. Bacon, 8 468; Patterson v. Phil- brook, 9 161; Locke ">. Dane, 9 3o0, stated in (2 A.) 84 385, to be "not very satisfactory, and not to be considered as an authority beyond the precise cases which they decide;" disapproved also in iPorster v. Jforster 129 65B.1 129. But a statute, providing that a previous statute "shall be held to apply" in a different manner, from that in which the court had de- cided that it applied, means merely that it shall hereafter include that case, and so is not a legislative usurpation of judicial authority. Cambridge 0. Boston, 130 357. LSee, also, art. 135, post, and other sages cited m III, |4). As to the power of the legislature to legalize acts adjudged to be a nuisance, seepost, arts. 157, 158.] 130. St. 1838, Ch. 14, relating to the power of the bank commissioners to procure an in- junction against a bank, was not an assumption of judicial power, in making it the duty of a judge to perform a particular act in a particular case, as it applied to all banks in like case; nor in requiring the judge to issue the injunction, without satisfying himself, as it merely made the repres:ntation of the bank commissioners prima facie evidence. Comm. 0. Farmers & Mechs. Bk., (21 P.) 38 542. 181. A reservation by the legislature, of the right to repeal, etc., an act of incorporation, ior any violation of its provisions or other de- fault, is not a reservation of judicial power, as the inquiry for that purpose is not judicial Crease 0. Babcock, (23 P.) 40 334. 132. A statute, conferring upon the judges power to appoint supervisors of election, is unconstitutional, as that is an executive, not a judicial act. In re Supervisors, etc., 114 247.. 133. The legislature may constitutionally license the sale of the real estate of a ward or lunatic by his guardian, although the same power is given to the courts. Eice 0. Parkman, 16 326; Davison 0. Johonnot, (7 Met.) 48 388. 134. So as to a trustee under a will, or trus- tees for a religious society, where the proceeds are required to be appropriated to the purposes of the trust. Clarke 0. Hayes, (9 G-.) 75 426;Pine St. C. Soc. 0.Weld, (12 G.) 78 570; Sohier 0. Trinity Church, 109 1; Old South Soc. 0. Crocker, 119 1. (4.) Statutes Impairing vested rights. 135. The legislature cannot constitutionally enact a statute which impairs vested rights. Many of the cases, where the question was, whether the legislature had usurped judicial power, involve also the question whether it had impaired vested rights. The cases, where re- trospective statutes have been sustained as con- stitutional, are classified by Gray, Ch. J., in Porster ®. Porster, 129 559. 136. A statute is constitutional, which con- firms a sale of land under an order of court, where there was a want of jurisdiction, or the deed was irregularily made to another than the actual bidder, or the sale was after the time limited in the license, or where all parties, hav- ing the legal title, consented. Cooper v. Eobinson, (2 C.) 56 184; Sohier 0. Mass. Gen. Hospital, (3 C.) 57 483; Forster 0. Porster, 129 559. 137. Or where the sale was made by an ex- ecutor or trustee under a will, and the only objection was the manner of his appointment and giving bond. Weed 0. Donovan, 114 181; Forster 0. Forster, 129 559. 138. Or where the deed was acknowledged before a person acting as magistrate, whose commission had expired. Per Bigelow, Ch., in Denny 11. Mat- toon, (2 A.) 84 361; In re Sheehan, 122 445; Porster 0. Forster, 129 559. 139. Or where the statute cures a defect in the execution of a private deed or other instru- ment, so as to give it effect, according to the intention of the parties, and the equities of the case. Wildes 0. Vanvoorhis, (15 G.) 81 139; Johnson 0. Fay, (16 G.) 82 144; per Bigblow, Ch. J., in Denny 0. Mattoon, (2 A.) 84 361; Forster 0. Forster, 129 559. 140. A statute is also constitutional, where it confirms the vote of a town for municipal or other public purposes. Forster 0. Forster. 129 559. 230 CONSTITUTIONAL LAW, III, (4), (5). 141. Or where it confirms an informal or irregular assessment of taxes, so that they may be collected in future, without undertaking to give force to illegal seizures or sales, already made. But where the confirming act is made applicable only to cases, where proceedings in- volving the validity of the sale have been begun, or land has been alienated since the invalidity was* declared by the court, it is invalid, both as impairing vested rights, and as an assumption of judicial power. Forster «. Forster, 129 559 142. Statutes affecting tenures and interests of persons unborn, or having remote expecta- tions, or uncertain lights, are not objectionable as impairing vested rights. Clarke v. Cordis, (4 A.) 86 466; Bew- ail v. Roberts, 115 262. 143. Statutes regulating and altering the im- position and disposition of public burdens, or the disposition of the property of counties, cities, and towns, are within the discretion of the legislature, with respect to the application of this rule. Medford v. Learned, 16 215; Humph- rey v. "Whitney, (3 P.) 20 • 158; Goshen v. Richmond, (4 A.) 86 458; Bridge- water v. Plymouth, 97 382; Whitney*. Stow, 111 368; Rawson v. Spencer, 113 40; Stone v. Charlestown, 114 214; Bndicott ». Hopkinton, 125 521; Agawam ». Hampden Co., 130 528. [See, also, ante, II, (1); Bridge, II, (1).] 144. A statute, providing that land, aliened to two or more persons, shall be deemed to be held by them as tenants in common, is not un- constitutional, as applied to existing tenancies, as it is beneficial, not injurious. Holbrook v. Finney, 4 566; Miller v. Miller, 16 59; Annable v. Patch, (3 P.) 20 360; Burghardt v. Turner, (12 P.) 29 534. 145. Statutes modifying remedies do not im- pair vested rights. Bacon « Callender, 6 303; Comm. v. Hampden Com'rs, (6 P.) 23 501; Holyoke ». Haskins, (9 P.) 26 259; Bemis d. Clark, (11 P.) 28 452; Knight s. Dorr, (19 P.) 36 48; Wilbur v. Gil- more, (21 P.) 38 250; Simmons ». Han- over, (23 P.) 40 188; Ex parte Lane, (3 Met.) 44 '213; Andrews v. Worcester Ins. Co., (5 A.) 87 65; Jewett v. Phil- lips, (5 A.) 87 150; North Bridgewater S. Bk. v. Soule, 129 528. 146. A statute, giving a right of action against the owner, to a laborer, who, under a preceding statute, would have a lien, is constitutional, at least as to future contracts. Hart ». Boston, etc., R. R., 121 510. 147. A statutory exemption from militia duty is not a vested right, and may be constitution- ally abolished. Comm. v. Bird, 12 443. 148. So of a statutory settlement. Rutland v. Mendon, (1 P.) 18 154. 149. So of the tenure of a public office, which tne legislature may abolish, or shorten the term, if it is not fixed by the constitution. Taft v. Adams, (3" G.) 69 126; Op'n of the Justices, 1 1 7 603. 150. The legislature may constitutionally au thorize such a use of a stream, as shall wholly destroy a public fishery; and proprietors of streams not navigable cannot object to such use or claim compensation for injury to their fish- eries. Comm. v. Chapin, (5 P.) 22 199; Comm. ■». Essex Co., (13 G.) 79 239- Howes v. Grush, 131 207; Cole ». East- ham, 133 65. 151. It may also forbid all persons, including riparian proprietors upon unnavigable streams, from taking fish at certain times and in certain, modes. Comm. «. Look, 108 45' [See, also, Fish, etc., II.] 152. One who takes a lease, after the enact- ment of a statute, providing for a different ap- portionment to the landlord and the tenant of damages for taking land for a highway, cannot object that the statute is unconstitutional Turner v. Robbins, 133 207. C5.> Statutes 'taking, or otherwise feeling, private property. [See, also, ante, III, (i).~\ 153. The legislature may constitutionally grant to a person or corporation, without pro- viding for compensation to the owner of the fee, the right to use a highway, or other prop- erty taken for public use, for any purpose, which does not, as against the owner, create a burden, separate from, and additional to, the easement already existing thereupon. Callender v. Marsh, (1 P.) 18 418; Chase v. Sutton Man. Co., (4 C.) 58 152; Comm. v. Temple, (14 G.) 80 69; Comm. v. Lowell, etc., Co., (12 A.) 94 75; Boston v. Richardson, (13 A.) 95 146; Atty.- Gen'l ». Metropolitan R. R., 125 515; Pierce v. Drew, 136 75. 154. The legislature may also constitutionally require lands to be filled up, graded, or drained, by the owner; and may, if he neglects so to do, authorize the public anthorities to make such improvements, and create a lien upon the land for the expense thereof. Wright v. Boston, (9 C) 63 233; Salem v. Eastern Railroad, 98 431; Nickerson v. Boston, 131 306. [See, also, Board ov Heai/th; Nuisance, III, (3)0 155. The legislature has also full constitu- tional power to make police regulations, suck as quarantine and health regulations, or other regulations providing in what manner property shall be used, or business carried on, although they interfere to some extent with the full enjoyment of private property, without making compensation to the persons so incommoded. Baker e. BosM, (12 P.) 29 184; Comm. v. Tewksbury, (11 Met.) 52 55; Comm. v. Alger, (7 C.) 61 53; Fisher e. McGirr, (1 G.) 67 1; Parsons «. Pettin- gell, (11 A.) 93 507; Blair v. Forehand, lOO 136; Dingley v. Boston, 100 544; Sohier v. Trinity Church, 10SJ 1 ; Watertown v. Mayo, 109 315; Cobb «. Boston, 112 181; Taunton v. Tay- lor, 116 254; Woodlawn Cemetery *. Everett, 118 354; Salem ». MayneSj 123 372; Bancroft*. Cambridge, 1^*» CONSTITUTIONAL LAW, III, (5). 231 438; "Welch v. Boston, 126 442; Saw- yer v. Davis, 136 239. 156. But a right of property cannot be in- vaded under such a guise, where it is manifest that such is not the object and purpose of the regulation. Austin v. Murray, (16 P.) 33 121. 157. And this power extends to permitting acts which, but for the legislative permission, would amount to a private nuisance; even, although, before the permissory statute was enacted, they had been judicially declared a nuisance, and prohibited by injunction. Comm. i). Essex Co., (13 G.) 79 239; Comm. 8. Rumford C. Works, (16 G.) 82 231; Call v. Allen, (1 A.) 83 137; Presbrey v. Old Colony, etc., R. R., 103 1; Walker 8. Old Colony, etc., R. R., 103 10; Bancroft v. Cambridge, 126 438; Sawyer v. Davis, 136 239. 158. Semble, however, that this rule does not extend to a case where the nuisance is so great as practically to deprive the owner of the use and enjoyment of his property. Sawyer v. Davis, 136 239. 159. And wjiere the thing authorized can be done, without creating a nuisance, the statute will not be deemed to authorize a nuisance. Eames «. N. E. W. Co., (11 Met.) 52 570; Comm. v. McDonough, (13 A.) 95 581; Comm. 8. Kidder, 107 188; Has- kell 8. New Bedford, 108 208; Sawyer e. Davis, 136 239. 160. The various statutes, requiring a license to sell liquor, to keep a dog, to keep a tavern, etc., are police regulations, and are constitu- tional. Comm. 8.Blackinglon,(24P.) 41 352; Comm. v. Clapp, (5 G.) 71 97; Comm. 8. Murphy, (10 G.) 76 1; Comm. 8. Howe, (13 G.) 95 26; Blair 8. Forehand, 100 136; Comm. 8. Owens, 114 252; Comm. 8. Intoxicating Liquors, 115 153. [See, also, Intoxicating Liquors, I, (2); and Boston Beer Co. v. Massachusetts, 97 U. S-, 25, aff'g 115 153.] 161. So of a statute prohibiting the use of bowling alleys, after a certain hour; or keeping a shop open on Sunday. Comm. 8. Colton, (8 G.) 74 488; Comm. 8. Has, 122 40. 162. So of a statute regulating the hours of work for women and children in manufac- turing establishments. Comm. 8. Hamilton Man. Co., 120 383. 163. So of a statute prohibiting credit to the undergraduates of Harvard College. Soper 8. Harvard College, (1 P.) 1 8 177. 164. So of a statute against the sale of milk mixed with water, or otherwise adulterated. Comm. 8. Waite, (11 A.) 93 264; Comm. 8. Evans, 132 11. 165. So of a statute authorizing inspectors of milk to enter carriages, used in the conveyance of milk, and, wherever they have reason to believe any of the milk to be adulterated, to take specimens for analysis. Such a statute does not violate either this clause of the consti- tution or the clause against unreasonable searches or seizures, or the clause forbidding one from being compelled to furnish evidence against himself. Comm. 8. Carter, 132 12. 166. A statute, authorizing the building of a bridge over navigable waters, is constitutional, although it does not provide for compensation for the obstruction and inconvenience caused to those who navigate the stream; and the leg- islature is the sole judge of the necessity of the bridge. Comm. «. Breed, (4 P.) 21 460. 167. Aliter, if it does not provide compensa- tion for those whose land is taken. Thacher v. Dartmouth Bridge, (18 P.) 35 501. 168. To justify the taking of private prop- erty, it is not essential that the entire commu- nity, or even a considerable portion of it, should directly participate in the benefits. Talbot 8. Hudson, (16 G.), 82 417. 169. Thus a company, having for its cbject the promotion of the general public convenience, may be authorized to take land. Boston & Roxbury Mill Dam v. Newman, (12 P.) 29 467; Boston Water P. Co. v. Boston & W. Railroad, (23 P.) 40 360; Lumbard 8. Stearns, (4 C.) 58 60; Hazen 8. Essex Company, (12 C.) 66 475. 170. The determination of the legislature, that the purpose, for which the property is to be taken, is a public use, is not conclusive; but if it is a public use, the determination of the legislature is conclusive as to the necessity of the taking. Talbot 8. Hudson, (16 G.) 82 417; Bancroft 8. Cambridge, 126 438. 171. But the right of a company thus to take land must be given clearly and unambiguously in the statute, for non constat but that it might accomplish the object by purchase; and the same rule applies to taking a highway. Thacher v. Dartmouth Bridge, (18 P.) 35 501; Boston Water P. Co. 8. Bos- ton & W. Railroad, (23 P.) 40 360; Springfield 8. Conn. R. Bailroad, (4 C.) 58 63; Glover 8. Boston, (14 G.) SO 282; Wilson 8. Lynn, 119 174. 172. One corporation may be authorized to take either the land or the franchise of another, for a purpose thus deemed a public use, on pay- ing a just equivalent. Boston Water P. Co. v. Boston & W. Railroad, (23 P.) 40 360; Springfield 8. Conn. R. R. R., (4 C.) 58 6b; Bos- ton & L. Railroad 8. Salem & L. Railroad, (2 G.) 68 1; Central Bridge «. Lowell, (4 G.) 70 474; Eastern Railroad 8. Bos- ton & M. Railroad, 111 125. 173. A person, who has consented to the tak- ing of property under a statute, and those claim- ing under him, cannot object to its constitu- tionality, on the ground that it does not provide for compensating him. Haskell 8. New Bedford, 108 208- Pitkin 8. Springfield, 112 509. 174. Consent of persons interested will be presumed, and a stranger cannot object that their consent was not given. Ex parte Wellington, (16 P.) 33 87. 232 CONSTITUTIONAL LAW, III, (5), (6). 175. Nor can a person having no interest, separate from that of all citizens, object that an act is unconstitutional. Ex parte Wellington, (16 P.) 33 87. 176. Where the owner has formerly surren- dered the property to public use, he cannot claim compensation for a different use of the same general character. Ex parte Wellington, (16 P.) 33 87. 177. A statu' e authorizing commissioners to enter upon land, to ascertain certain boundaries for public purposes, does not take property for public use, within the meaning of the constitu- tion. Winslow v. Gifford, (6 C.) 60 327. 178. Land of an individual cannot be taken and used for the encampment of the militia, without compensation. Brigham v. Edmands, (7 G.) 73 359. 179. The legislature may authorize land to be taken by the United States for a post-office, on payment of a valuation by a jury. Burt v. Merchants' Ins. Co., 106 356. 180. The legislature may authorize a city to take land for a public park, or any other mu- nicipal purpose; but only on making due com. pensation. The landowner has no right to be heard on the question of necessity or benefit. Baker «. Boston, (12 P.) 29 184; Hil- dreth 0. Lowell, (11 G.) 77 345; Holt v. Somerville, 127 408; Poster v. Park Com'rs, 133 321. 181. Land may be thus taken, although held under a grant from the city, containing a cove- nant of quiet enjoyment. Brimmer v. Boston, 102 19. 182. The provision for compensation for prop- erty taken for a public use, must be certain and reasonable; generally the amount is to be ascer- tained by a valuation; but it is no objection to the statute, that the claimant is required to give notice of his claim, and the body taking the property may then have a short time, in which to determine whether it will pay the amount claimed. Boston & B. Mill Dam 0. Newman, (12 P.) 29 467; Hazen v. Essex Company, (12 C.) 66 475; Talbot v. Hudson, (16 G.) 82 417. 183. A provision that land, to be taken for a railroad station, shall be paid for out of the earnings, the road being owned by the Com- monwealth, is not reasonable. Conn. B. Railroad v. Franklin Com'rs, 127 50. 184. The legislature may provide, where land is taken for laying out and. widening a street, that the owner may elect to surrender his entire land, and the buildings thereon, to the city; and for payment of the value of the same, as esti- mated by the mayor and aldermen. Dorgan 0. Boston, (12 A.) 94 223. 185. Statutes allowing bow windows, steps, etc., to project into the streets of a city, do not confer rights of property upon the persons benefited. Jenks i). Williams, 1 15 217; Comm. 0. Goodnow, 117 114. See, also, Cash- ing v. Boston, 128 330. 186. The legislature, in dividing or altering the boundaries of counties, cities, or towns or abolishing school districts, fire districts, or the like, may constitutionally provide for the divi- sion of property, or of burdens or debts, as it deems proper, without objection from this or other clauses of the constitution. Harrison v. Bridgeton, 16 16; Wey- mouth, etc., F. Dist. 0. Norfolk Com'rs, 108 142; Rawson v. Spencer, 113 40; Stone 0. Charlestown, 114 214 See, however, Hampshire v. Franklin 16 76. 187. A statute, authorizing the owners of certain meadow lands to form themselves into a corporation, for the purpose of draining and improving the meadows, is unconstitutional, as far as it authorizes the corporation to maintain complaints under the mill acts, for flowing the meadows of owners who have not assented to the act, and for whom no compensation is pro- vided. Neponset Meadow Co. 0. Tileston, 133 189. 188. A statute, forbidding any person from selling provisions or refreshments within one mile of a campmeeting, without permission from the officers, is constitutional, even as against a person who thus sells upon his own land. Comm. 0. Bearse, 132 542. (6.) Taxation, and oilier burdens. [See, also, ante, III, (4); III, (5); Bridge, II, (1) ; Taxation, I.] 189. The clause of the constitution, requiring taxes to be proportional and reasonable, forbids the imposition of a tax upon one class of prop- erty, at a different rate from that applied to other classes. Connecticut M. Ins. Co. 0. Comm., 133 161. 190. Accordingly, an assessment upon shares of nonresident owners in a corporation, or a partnership in which the interest of each member may be transferred without his associ- ates' assent, is unconstitutional. Oliver 0. Washington Mills, (11 A.) 93 268; Gleason v. McKay, 134 419. 191. So is every assessment, which discrimi- nates between different classes of property, or different persons, either directly in the assess- ment, or indirectly, through unequal methods of valuation. Portland Bk. 0. Apthorp, 12 252; Comm. 0. People's F. C. S. Bk., (5 A.) 87 428; Comm. 0. Hamilton Man. Co., (12 A.) 94 298; Murray 0. Berkshire L. Ins. Co., 104 586; Cheshire 0. Berkshire Com'rs, 118 386; Fall River 0. Bristol Com'rs, 125 567. 192. Statutes of the nature of police regula- tions, requiring lands to be raised, graded, or drained by the owner, and, if he fails so to do, requiring the local authorities to do the work, and assess the expense upon the land, are not within this provision; and the question, whether the land was in fact benefited, is not open to judicial inquiry. Nickerson 0. Boston, 131 306. [See, also, ante, arts. 154, 155.] CONSTITUTIONAL LAW, III, (6), (Y). 233 193. The words "tax," and "excise," as used in Const , Ch. 1, § 1, art. 4, have separate significations; the former is a charge, appor- tioned either among the whole people, or those residing within certain districts; the latter is a fixed and direct charge upon merchandise, pro- ducts, or commodities, without regard to the amount of property of those upon whom it falls, or any supposed relation between the money expended, and a special benefit to those by whom it is to be paid. ■ Portland Bk. v. Apthorp, 12 252; Comm. v. People'sF. C. S. Bk., (5 A.) 87 428; Oliver i>. Washington Mills, (11 A.) 93 268. 194. The legislature has the power to impose, or to authorize local authorities to impose, an excise upon any business or calling, exercised in the Commonwealth, and upon any franchise or privilege, conferred by or exercised within the Commonwealth. Portland Bk. v. Apthorp, 12 252; Boston v. Schaffer, (9 P.) 26 415; Comm. v. People's F. C. Sav. Bk., (5 A.) 87 428; Comm. v. Lowell Gas L. Co., (12 A.) 94 75; Comm. v. Hamilton M. Co., (12 A.) 94 298; Comm. v. Cary Imp. Co., 98 19; Atty.-Gen'l v. Bay State M. Co., 99 148; Comm. «. Fred- ericks, 119 199; Connecticut Ins. Co. ®. Comm., 133 161; Gleason v. McKay, 134 419. 195. A statute, regulating the place where a person shall be taxed, is not unconstitutional, unless the effect is to tax him twice on the same property. Lee v. Boston. (2 G.) 68 484. 196. Taxes, levied for public local purposes, may be constitutionally imposed upon resi- dents or property holders in a particular dis- trict, b?nefit:d thereby; and the extent of benefit is not the subject of judicial inquiry. Norwich ®. Hampshire Com'rs, (13 P.) 30 60; Ex parte Goddard, (16 P.) 33 504; Lowell®. Hadley, (8 Met.) 49 180; Atty.-Gen'l v. Cambridge, (16 G.) 82 247; Morse v. Stocker, (1 A.) 83 150; Hingham & Q. Turnpike v. Norfolk Co., (6 A.) 88 353; Dorgan B.Boston, (12 A.) 94 223; Haverhill Bridge ®. Essex Com'rs, 103 120; Jones ®. Boston, 104 461; Howe «. Cambridge, 114 388; Holt v. Somerville, 127 408. 197. A by-law of a city, requiring owners or occupants to clear the snow from their side- walks, and exempting a part of the city pecu- liarly si uated, is not unconstitutional. Mx parte Goddard, (16 P.) 33 504. 198. The legislature may constitutionally authorize a town to raise money for an agricul- tural college. Merrick v. Amherst, (12 A.) 94 500. 199. Or to reimburse individuals, cities, or counties, for money paid to fill quotas of troops, under the call of the president of the U. S. Lowell ®. Oliver, (8 A.) 90 247; Free- lands. Hastings, (10 A.) 92 570. 200. The legislature has no power to lay a tax or to authorize a debt to be incurred, ex- cept to meet an expenditure for the public ser- vice, or some object which promotes the public welfare. Vol. 1—30 Lowell v. Boston, 111 454; Mead®. Acton, 139 341. 201. Accordingly an act, authorizing the city of Boston to issue bonds, in aid of those whose buildings were burned by the great Lre of 1872, is unconstitutional. Lowell ®. Boston, 111 454. 202. So is a tax to reimburse individuals for s lbstitutes, procured for themselves, under the president's call for troops. Freeland v. Hastings, (10 A.) 92 570. [See further as to statutes on that subject. United States 1''obces J 203. Or to support a school, founded by a charitable bequest, the trustees of which are required to be of particular reLg.ous denomina- tions, and in part only elected by the town Jenkins ®. Andover, 103 94. (7.) Rules of evidence. 204. The clause, forbidding compulsory self- accusation, applies only to a ciiminal prosecu- tion, and does not protect a witness from an- swering or producing a document, where his so doing may expose him to a civil action, a pen- alty, or a forfeiture, or otherwise affect his pecuniary interest, even although the threat- ened proceedings may be founded upon his own fraud. Comm. ®. Caldwell, 14 330; Devoll v. Brownell, (5 P,) 22 448; Keith v. Woombell, (8 P.) 25 211; Bull «. Love- land, (10 P.) 27 9; Neally ®. Ambrose, (21 P.) 38 185; Comm. ®. Farmers & Mechs. Bk., (21 P.) 38 542. See * tra, Appleton ®. Boyd, 7 131; overruled on this point. 205. As to the purchaser of spirituous liquor, sold or to be sold in violation of the statute, see Comm. v. Willard, (22 P.) 39 476: Comm. i). Kimball, (24 P.) 41 366 Comm. ®. Downing, (4 G.) 70 29 Poultney ®. Mackey, (13 G.) 79 280. 206. It is the witness's own privilege to refuse to give evidence to criminate himself; and the party cannot object, either to the evidence, or to the judge's refusal to inform the witness that he is not bound to answer. Comm. ®. Shaw, (4 C.) 58 594; Comm. i>. Howe, (13 G.) 79 26; Root v, Hamil- ton, 105 22. 207. Where the witness is compelled to an- swer, against his objection, the bill of excep- tions must show what the answer was. Comm. v. Lannan, (13 A.) 95 563. 208. Where a witness, with knowledge of his privilege, voluntarily answers in part, he may be examined as to the whole transaction. Foster v. Pierce, (11 C.) 65 437; Comm. ®. Price, (10 G.) 76 472; Comm. ®. Pratt, 126 462. 209. But where, after a partial instruction as to his rights, the witness answers in part, and, upon a further instruction, declines to answer, the judge may, in his discretion, allow the priv- ilege, and strike out the testimony already given. Mayo®. Mayo, 119 290. 234 CONSTITUTIONAL LAW, III, (Y), (8). 210. The admission in evidence of articles, taken from the defendant upon a search war- rant is not within this prohibitory clause. Comm. v. Dana, (2 Met.) 43 329. See, also, Comm. v. Carter, 132 12; ante, art. 165. 211. The defendant in an indictment, by offering himself as a witness, waives his right to object to answer any pertinent question, on the ground that the answer might tend to crimi- nate him. Comm. ». Lannan, (13 A.) 95 563; Comm. .». Mullen, 97 545; Comm. v. Morgan, 107 199; Comm. v, Nichols, 114 285; Comm. ■». Tolliver, 119 312. 212. And if a parly, in a civil cause, testify- ing in his own behalf, refuses to answer on that ground, his refusal is evidence against himself. Andrews v. Frye, 104 234. 213. The protection against self-accusation applies to a legislative investigation, and is not dispensed with by a statute, which does not protect the witness from prosecution, as effec- tively as his refusal to answer would protect him. In re Emery, 107 172. 214. The right of the accused in a criminal prosecution "to meet the witnesses against him face to face," is not violated by the admis- sion of proof of the testimony of a deceased witness, at the preliminary examination of the accused before a magistrate. Comm. v. Eichards, (18 P.) 35 434. 215. Or of the dying declarations of one alleged to have been murdered. Comm. v. Carey, (12 C.) 66 246. 216. A statute, which takes away a purely technical objection to evidence, such as a varia- tion, or a matter of form in an indictment, leaving the defendant fully informed of the charge, and with ample opportunity to defend himself, is not constitutionally objectionable. Comm. «. Walton, (11 A.) 93 238; Comm. v. Hall, 97 570. 217. So of a statute, which declares the legal effect of a particular species of evidence, if left unexplained or uncontradicted; such as that certain acts shall be prima facie evidence of guilt, leaving the jury to detei mine their effect. Comm. v. Williams, (6 G.) 72 1; Comm. v. Wallace, (7 G.) 73 222; Comm. v. Burns, (9 G.) 75 132; Comm. v. Rowe, (14 G.) 80 47; Holmes v. Hunt, 122 505. 218. So in a civil cause. Kendall v. Kingston, 5 '524. 219. Qu., as to the constitutional validity of a provision, that lottery tickets sold are pre- sumed to be false, etc., unless the defendant proves them to be genuine. Comm. t>. Dana, (2 Met.) 43 329; Per Thomas, J., in Comm. v. Williams, (6G.) 72 1. 220. A statute is constitutional, which pro- vides that the validity of an existing marriage shall not be questioned collaterally, upon the ground of the insanity or idiocy of either party. Goshen v. Riohmond, (4 A.) 86 458. C8.) Trial by jury. 221. A statute, conferring upon the jury in a criminal cause, the power to determine ques- tions of law, against the instructions of the court, is unconstitutional, although it allows the court to grant a new trial. Comm. v. Anthes, (5 G.) 71 185. 222. A statute, authorizing a single magis- trate to try, convict and sentence in a criminal cause, but giving the defendant an unqualified right of appeal, and a trial by jury in the ap- pellate court, subject only to his giving bail, or being committed for want of bail, is constitu- tional. Sullivan v. Adams, (3 G.) 69 476; Jones v. Robbins, (8 G.) 74 329. [See, aJso, post, art 229.] 223. But a provision, that, upon such an appeal, the appellant fahall be committed to abide the sentence appealed from, would be un- constitutional, and is to be rejected. Sullivan c. Adams, (3 G.) 69 476. 224. Where, upon such an appeal, the appel- lant forfeits his recognizance to prosecute the appeal in the appellate court, he waives his right to a jury trial, and may constitutionally be sentenced upon his default. Comm. v. Whitney, 108 5; Batchel- der v. Comm., 109 361. 225. So a statute is constitutional, which pro- vides that no person, who has been released upon bail or recognizance, and has made de- lault, shall be allowed to go at large upon further bail, or recognizance, without a reason- able excuse for the default. In re Allen, 126 224. 226. A second trial upon an indictment, where the jury were discharged on the first trial, without a verdict, is not a violation either of the clause securing a jury trial in a criminal cause, or of that forbidding the accused to be put twice in jeopardy Comm. v Purchase, (2 P.) 19 521. [See, also, Former Adjudication, 1.1 227. G. S., Ch. 132; P. S., Ch. 170, as to selecting and drawing jurors, is constitutional. Comm. v. Brown, 121 69; Comm. «. Walsh, 124 32. 228. The statute, giving the Commonwealth a right of peremptory challenge in a criminal cause, is constitutional. Comm. v. Dorsey, 103 412. 229. The right to a jury trial in a civil cause, where the subject of the action exceeds $30 in value, is secured by art. 15 of the declaration of rights, and cannot be wholly denied by the legislature; it refers to the ad damnum in the writ; and it is sufficiently secured by allowing the party a trial by jury, either in the court below, or in the superior court upon appeal. Hapgood v. Doherty, (8 G.) 74 373; Trees v. Rushworth, (9 G.) 75 47; O'Loughlin v. Bird, 128 600. 230. So of the statute allowing a judge of probate to appoint a guardian for a spendthrift, with an appeal to the supreme court, and a jury trial there. Bond t>. Bond, (2 P.) 19 382. CONSTITUTIONAL LAW, III, (8), (9). 235 231. A statute, extending the jurisdiction of a justice of the peace to $200, and requiring the party to give security for the prosecution of his appeal and for costs, is constitutional. Hapgood v. Doherty, (8 G.) 74 373. 232. So is a statute providing that the defen- ant in a civil action shall he defaulted, unless within ten days after the return of the writ, he flies an affidavit of merits. Hunt v. Lucas, 99 404. 233. So is a statute, providing that he shall not be entitled to a jury trial, unless he files, within a specified time, a notice that he desires such a trial. Foster e. Morse, 132 354; Bailey v. Joy, 132 356. 234. The right to a trial by a jury secures an effectual trial and a verdict; and where the jury in a highway cause were unable to agree, it was held that the town was entitled to a second jury trial, although the statute did not so provide. Mendon v. Worcester, (10 P.) 27 235. 235. Proceedings in bankruptcy or insolvency are not according to the course of the common law; and the statute authorizing seizure upon a warrant, and making a discharge conclusive evidence, is constitutional. O'Neil ». Glover, (5 G.) 71 144; Kempton v. Saunders, 130 236; Up- ham e. Raymond, 132 186. 236. Eemhle, that a party is not entitled to a jury trial in an equity suit, except as authorized by statute, although the court will, in framing issues, regard the constitutional provision. Charles R. Bridge v. Warren Bridge, (7 P.) 24 344; Franklin v. Greene,, (2 A.) 84 519; Hamilton Ins. Co. v. Parker, (11 A.) 93 574; Stockbridge Iron Co. v. Hudson Iron Co., 102 45. Contra, per Merrick, in Shaw v. Norfolk Co. R. R., (16 G.) 82 407, overruled. See, however, Ward i>. Hill, (4 G.) 70 593. LSee Equity Pleading and Practice, II, (2).] 237. So in quasi equitable proceedings, as under the statute, allowing the court to make an order for the support of a wife and children, by the husband and father, where he has abandoned them. Bigelow v. Bigelow, 120 320. 238. Questions, arising upon the settlement and removal of paupers, may be constitution- ally determined without a jury. Shirley ». Lunenburgh, 1 1 379. 239. Statutes, authorizing municipal improve- ments, and the assessment of the cost upon abutting land-owners by the municipality, are constitutional. Howe v. Cambridge, 114 388; Chapin v. Worcester, 124 464. 240. Statutes, providing that certain matters shall be prima facie evidence, are constitutional. Holmes «. Hunt, 122 505. [See, also, ante, art. 317, 218.1 241. The statute allowing personal property, subject to a mortgage, to be attached, and the mortgagee to he summoned as trustee, is con- stitutional, inasmuch as if the creditor denies the validity of the mortgage, the question must be tried by a jury. Jackson v. Kimball, 121 204. 242. The decision of a judge, that the sent- ence of a foreign admiralty court is conclusive as to a blockade, is not a violation of the con- stitutional right to a jury trial in civil causes. Baxters. New Englandlns. Co., 7 275. 243. A statute, authorizing the levy of an execution against a manufacturing corporation, upon the bodies and estates of the corporators, is not an infringement of the clause securing the liberty and property of the subject, or of that establishing the right to a jury trial. Child v. Coffin, 17 64; Marcy v. Clark, 17 330. 244. St. 1882, Ch. 181, § 3, authorizing the commitment of a child, who is neglected, etc., by the district court to the overseers of the poor, is constitutional. Farnham e. Pierce, 141 203. <9.) Holding to answer for an offence, 245. The affidavit and proof, required by statute, in order to arrest a person in a civil action, is not a charge of an " offence," for which the debtor is " held to answer," within art. 12 of the declaiation of rights. In re Frost, 127 550. 246. The clause referred to does not change the common law rule, as to the forms of indict- ments. Comm. v. Davis, (11 P.) 28 432. 247. Nor does it prevent a conviction for a less offence than the one charged in the indict- ment. Comm. v. Lang, (10 G.) 76 11. 248. A statute, establishing two grades of murder, and providing that nothing therein shall change the existing forms of indictment, does not violate that clause. Comm. v. Gardner, (11 G.) 77 438. 249. Nor does a pre vision, regulating the sufficiency of an indictment, as to a technical allegation. Comm. v . Bennett, 118 443. 250. Nor does a provision, that formal objec- tions to complaints and indictments must be made at a particular stage of the proceedings. Comm. «. Walton, (11 A.) 93 238. 251. Nor does a provision, allowing the im- position of an additional penalty upon a convict in the State prison, by means of an information alleging a former conviction. In re Ross, (2 P.) 19 165. 252. Or allowing the amendment of an alle- gation of a former conviction, on the trial of a second offence. Comm. v. Holley, (3 G.) 69 458. 253. But a sentence to an increased penalty cannot be rendered, except upon an allegation and proof of a former conviction; and a statute, dispensing with such an allegation, is uncon- stitutional. Garvey «. Comm., (8 G.) 74 382; Comm. v. Harrington, 130 35. 254. A statute, giving an inferior court juris- diction to sentence an offender to the State 236 CONSTITUTIONAL LAW, III, (10), (11). prison, without presentment by a grand jury, is unconstitutional. Jones v. Bobbins, (8 G.) 74 329; In re Nolan, 122 330; Comm. v. Horregan, 127 450. (10.) Unreasonable searches and seiz- ures. 255. The clause against unreasonable searches and seizures is not violated, by a legislative dec- laration that the possession of certain articles is, either absolutely, or under particular circum- stances, unlawful, because they are dangerous or injurious; and a provision that they may be seized and confiscated by due process of law. Fisher*. McGirr, (1 G.) 67 1; Allen v. Staples, (6 G.) 72 491. [See, also, Comm. v. Carter, 132 12; ante, art. 165.] 256. But such a statute is unconstitutional, which neither requires the person keeping them to be named in the complaint or search-warrant, nor limits the officer's authority to the particu- lar articles complained of; and provides for the destruc'ion of the property, and the punish- ment of the owner, without notice to him, if known to the officer. Fisher i>. McGirr, (1 G.) 67 1. 257. The same principle applied to St. 1856, Ch. 284, §36, providing for a warrant, by ajudge of the insolvency court, to search for property of the debtor. Robinson «. Richardson, (13 G.) 79 454. 258. A statute, authorizing the mayor and al- dermen of a city, or the selectmen of a town, or a police officer specially authorized by them, to enter upon the premises of a person licensed under the act, to ascertain how he conducts his business, and to preserve order, is constitu- tional. Comm. v. Ducey, 126 269. 259. A statute, authorizing an officer, with- out warrant, to arrest a person found in the act of illegally selling or transporting intoxicating liquors, and to seize the liquors, and the vessels containing them, etc., and detain them, till war- rants can be procured for the trial of the person and the seizure of the liquors, is constitutional. Jones *. Root, (6 G.) 72 435; Mason e. Lothrop, (7 G.) 73 354. 260. Under a warrant in the usual form on a complaint for larceny, the officer may break and enter the shop of the accused, and seize the arti- cle alleged to have been stolen. Banks v. Farwell, (21 P.) 38 156. 261. A warrant to arrest " John Doe or Rich- ard Roe, whose other ortruenameis unknown," without other identification, is void. Comm. v. Crotty, (10 A.) 92 408. (11.) Other matters. [As to the provision forbidding one from being twice put in jeopardy for the same offence, see Fob- meb Adjudication, L] 262. The thirteenth article of the declaration of rights, requiring " the verification of facts in the vicinity where they happen," is not vio- lated by the proof of facts occurring abroad, to sustain a prosecution for a crime committed here. Comm v. Holt, 121 61. 263. Nor by a statute providing, that if the cause of death occurred in one county, and the death in another, an indictment for homicide may be found and tried in either county. Comm. *. Parker, (2 P.) 19 550. 264. St. 1855, Ch. 215, §§ 15, 17, punishing the unlawful sale of intoxicating liquors by line and imprisonment, were not unconstitutional, as imposing excessive fines, or inflicting cruel or unusual punishments. Comm. v. Hitchings, (5 G.) 71 482. 265. A statute providing an increased punish- ment for a second offence, is not unconstitu- tional, as an ex post facto law, where the second offence was committed after, although the first was committed before, the enactment of fie statute. In re Ross, (2 P.) 19 165. 266. The laws against conspirators and ab- sentees, made before the adoption of the consti- tution, were not repealed by the ex pott facto clause of the declaration of rights. McNeil *. Bright. 4 282. 267. The clause in the declaration of rights, prohibiting an exclusive privilege, was not vio- lated by the act of 1818, respecting unlicensed physicians or surgeons. Hewitt *. Charier, (16 P.) 33 353 268. Nor by an act, providing that, in prose- cutions under the by-laws of Boston, it shall not be necessary to set forth the by-law in the complaint. Comm. v. Worcester, (3 P.) 20 462. 269. Laws for the observance of Sunday do not violate the eleventh amendment, providing that no sect or denomination shall be subordi- nate to another, even as applied to a person who keeps Saturday as the Sabbath. Comm. v. Has, 122 40. 270. The rejection of a witness as incompe- tent, for want of religious belief, is not a viola- tion of the second article of the declaration of rights. Thurston *. "Whitney, (2 C.) 56 104. 271. A minister or public teacher of religion, not ordained over one particular parish or place, could not, under the third article (original) of the declaration of rights, maintain an action to recover money assessed for the support of public worship. Washburn *. West Springfield, 1 32; Kendall 1). Kingston, 5 524. 272. For other rulings under this article, (which was superseded in 1833 by article eleventh of the amendments,) and the statutes relating to parochial taxes for the support of religion, passed in pursuance thereof, see Montague «. Dedham, 4 269; Barnes ■a. Falmouth, 6 401; Matignon v. New- castle, cited, 6 413, 414; Turner ». Brookfield, 7 60; Sanger v. Roxbury, 8 265; Adams *. Howe, 14 340; Tur- ner *. Burlington, 16 208; Coburn v. Richardson, 16 213; Amesbury Nail Co. v. Weed, 17 53; Whittemore v. Smith, 17 347; Holbrook v. Holbrook, (1 P.) 18 248; Granger r. Parsons, (2 P.) 19 392; Sumner v. Dorchester, (4 P.) 21 361; Gage v. Currier, (4 JO 21 399; iDglee «. Bosworth, (5 P.) 2f 498; Oakes v. Hill, (10 P.) 27 333; CONSTITUTIONAL LAW, III, (11)— CONTEMPT. 23T Goodell Man. Co. «. Trask, (11 P.) 38 514; Leavitt v. Truair, (13 P.) 30 111; Fisher «. Whitman, (13 P.) 30 350; Chase «. Merrimack Bk., (19 P.) 36 564. [See, also, Parish.] 273. Specific amendments to the constitution can be made, under article ninth of the amend- ments, only and where the legislature submits to the people the expediency of calling a con- vention of delegates, to revise or amend a specified part of the constitution. The delegates derive their authority from the vote of the people, and have no authority to propose or act upon amendments to any other part. Opin. of the Justices, (6 C.) 60 573. i 274. A woman cannot constitutionally be a justice of the peace. Opin. of the Justices, 107 604. 275. But she may be a member of a school committee. Opin. of the Justices, 1 15 602. 276. The offices of justice of the peace and constable are not incompatible. Comm. v. Kirby, (2 C) 56 577. 277. As to the effect of the seventeenth and nineteenth articles of the amendments, upon persons in office, for an unexpired term, when they were adopted, see Opin. of the Justices, (3 G.) 69 601. 278. The appointment by the executive to an office in a new county, created by statute, if made before the day when the statute is to take effect, is void. Comm. v. Fowler. lO 290. 279. Under the 19th article of the amend- ments, the clerk of a district court, whose juris- diction extends over part only of a county, may be constitutionally appointed by the gov- ernor. Comm. v. Mather, 121 65. 280. So may a state constoble. Comm. v. Intoxicating Liquors, 110 172. 281. Aliter, of the principal recording officer of the court of probate for a county. Opinion of the Justices, 117 603. 282. St. 1856, Ch. 284, transferring the juris- diction of commissioners of insolvency to courts of record, with judges appointed by the gov- ernor and council, did not violate the 19th article of the amendments, directing the elec- tion of commissioners of insolvency by the people of the several counties, etc. Dearborn v. Ames, (8 G.) 74 1; Opinion of the Justices, (8 6.) 74 20. [As to state legislation respecting fugitive slaves, and the rights of slave-owners, when slavery existed in the United States, see ante, II, (5).] _ 283. Article second of the amendments, for- bidding the establishing of a municipal or city government, in a town having less than 12,000 inhabitants, does not apply to the annexation of a town to a city already established. Chandler v. Boston, 112 200. 284. The provision allowing a creditor, where charges of fraud are made under the poor debtor's act, to appeal from the magistrate's decision, and have a jury trial, are constitu- tional. Stockwell v. Silloway, 100 287. 285. A statute allowing a prosecution, under the by-laws of a city, in the name of the Com- monwealth, is not unconstitutional as depriving an acquitted defendant of a remedy for costs. Comm. v. Worcester, (3 P.) 20 462; Ex parte Go&dmrd, (16 P.) 33 504. 286. The provision of St. 1855, Ch. 215, § 15, allowing the taxation of a fee of $10 to the attorney for the Commonwealth, where a fine is imposed, is not unconstitutional as tending to oppression, and preventing the impartial ad- ministration of justice. Comm. v. Munn, (14 G.) 80 361. 287. There is nothing in the constitution to prohibit the general school committee of a cily, if so authorized by law, from establishing separate schools for colored children, and pro- hibiting their attendance elsewhere. Roberts v. Boston, (5 C.) 59 198. Consul. ISee Arrest, I, (3): Bail, art. 18; Jurisdiction, art. 38; Scire Facias, art. 26 1 Contempt. [As to contempt by disobeying an injunction, see Injunction. Asto contempt of the houseof repre- sentatives, see Constitutional Law, III, (2).l 1. There can be no contempt, where there is no authority. And where a justice of the peace, who has no jurisdiction of a cause, or after the final disposition of a cause whereof he has jurisdiction, commits a witness to prison for contempt at the trial, he is liable to an action. In re Clarke, (12 C.) 66 320; Piper v. Pearson, (2 G.) 68 120; Clarke ». May, (2G.) 68 410. 2. The summary power to commit and punish for contempts, tending to obstruct or degrade the administration of justice, is inherent in courts of chancery, and ether superior courts, and is part of the law of the land, within the declaration of rights. In re Cartwright, 1 14 230; In re Whitcomb, 120 118. 3. The legislature has no power to confer upon the common council of a city the power to punish for contempt; and a statute purport- ing to confer such a power is unconstitutional. In re Whitcomb, 120 118. 4. A person cannot be in contempt of court for disobedience to an order not yet passed in a suit not yet begun. Stuart v. Stuart, 123 370. 5. Accordingly a conveyance by a husband of his property, in anticipation of his wife's filing a libel for divorce, to prevent the execu- tion of a decree for alimony, is not a contempt; but such a conveyance, with other facts, is competent, after the decree, upon the question whether he is able to obey the order for alimony. Stuart «. Stuart, 123 370. 6. Femble, that a commissioner in insolvency has no power to punish a creditor, who refuses 238 CONTEMPT— CONTRABAND OF WAR. to answer questions respecting his claim; the proper remedy is to reject the claim. Peabody v. Harmon, (3 G.) 69 113. 7. A witness who refuses to he sworn, or to testify, before a master in chancery, or a grand jury, may be brought before the court, and punished for a contempt. Heard v. Pierce, (8 C.) 62 338; In re Whitcomb, 120 118. 8. A receiver is an officer of the court, and as such is punishable, as for contempt, for mis- appropriation of the funds in his hands: the fact that the offence is indictable, or that he did not intend to do wrong, or that from poverty he is unable to restore them, is no excuse. In re Cartwnght, 1 14 230. 9. An application for an attachment for a contempt is to be made in the original cause; but after the attachment is issued, the proceed- ings are distinct, and are criminal in their nature. McDermqtt v. Clary, 107 501; Wins- low v. Nayson, 113 411; In re Cart- wright, 1 14 230. 10. A warrant, issued by order of the U. S. senate, addressed to the sergeant-at-arms of that body, cannot be served here by deputy. Sanborn e. Carleton, (15 G.) 81 399. Conterminous land owners. [See Land Owner.] Contingent remainder. [See Deed, III, (3); Devise, III, (6); Perpetuity; Trust, III, (3).] Continuance : stay of proceedings. lAs to postponement of a trial, see Trial, I.] • 1. Under St. 1784, Ch. 2, an executor, who, after action against him, represented the estate to be insolvent, was not entitled as of course to a continuance, pending the commission of in- solvency Blossom v. Goodwin, 1 502. 2. So where he has improperly neglected to bring his accounts to a close. Foster v. Abbott, 1 234. 3. An action will be brought forward upon the docket, in order that a judgment in a cross action may be set off. Winslow v. Hathaway, (1 P.) 18 211. 4. A continuance of an indictment was effectual under St. 1855, Ch. 215, although no written statement of the reasons was filed. Comm. «. Dormer, (11 G.) 77 318. 5. The justices' court of the county of Suf" folk may establish certain days, as regular term days, and may continue causes from term day to term day. Ex parte Sa.wte\l, (6 P.) 23 110. 6 In a bastardy case, continued because the child is not born, it is not necessary that the continuance be entered upon the bond. Adams v. Whiting, (12 P ) 29 196 7. Where the supreme judicial court refuses to take cognizance of exceptions, taken in the court below, it is the duty of the latter court to bring ihe cause forwar.l by continuances, and enter judgment. Comm. v. Moore, (3 P.) 20 194- Elv «. Ball, (8 P.) 25 352. 3 8. The insolvent law of this Commonwealth leaves the question, whether a continuance shall be granted, to enable the debtor to obtain and plead his discharge, to the discretion of the court in which the action is pending. Barker v. Haskell, (9 C.) 63 218- Sullings v. Ginn, 131 479. LAs to the U. S. bankrupt law, see Dunbar s Baker, 104 211; and Bankruptcy, art. 27 to 29.] 9. And, in general, a continuance for the purpose of pleading, or by reason of a pleading interposed by the adverse party, rests entirely in discretion, depending upon the circum- stances in each case. Tourtelot v. Tourtelot, 4 506; Craige v. Mellen, 4 587 10. An action against a sheriff may he con- tinued in the supreme judicial court, to enable him to apply to the court below, which has the custody of the record, for leave to amend his return. Baxter v. Rice, (21 P.) 38 197. 11. The court may, in its discretion, delay judgment, that property, assigned for the bene- fit of creditors, may be converted into money and applied to pay the debt. Rice v. Catlin, (14 P.) 31 221. 12. So the court may delay judgment, with- out prejudice to the attorney's lien, to enable the defendant to bring a cross action to estab- lish a set off. Rider v. Ocean Ins. Co., (20 P.) 37 259. 13. So a second attaching creditor's action may be delayed until the suit, in which the previous attachment was made, is determined. Barnard 1>. Fisher, 7 71. 14. So it is no cause of abatement that the defendant has been sued as trustee of the plain- tiff; but it is a ground for continuance, while the trustee process is pending; and during the continuance, the plaintiff cannot tax costs for travel and attendance. Winthrop v. Carlton, 8 456. [As to continuance, upon service of the writ against an absent defendant, for further notice, etc., see Writ, III.] Contraband of war. 1. Neutral goods, bound to a blockaded port, are contraband of war. - Richardson ». Maine F. & M. Ins. Co., 6 102. 2. Insurance by a subject, upon a voyage prohibited by the sovereign, is void; feut not on a voyage prohibited by the trade laws of an- other country, or on goods contraband of war against capture and condemnation on that account, if the facts are knx>wn to the under- writers. Richardson v. Maine F. & M. Ins. Co., 6 102. CONTBACT, I, (1). 239 3. Whether carrying contraband of war, by the subjects of a neutral, is a sufficient cause of war against the neutral, see per Parsons, Ch. J., in Richardson v. Maine F. & M. Ins. Co., 6 102. Contract. I. General Rules. (1 ) Implied contract. (2.) Requisites of, and parties to, an express contract. (3.) Enforcement by a person not a party. II. Consideration. (1.) General requisites and sufficiency. (2.) Illegal consideration. (3.) Failure of consideration. III. Validity (1.) Illegality (2.) Other matters. IV. Interpretation. (1.) General principles. (2.) Liquidated damages and penalty. (3.) Entirety or divisibility. (4.) Dependent and independent stipulations. (5.) Executory contract of sale, etc.: when title passes. (6.) Peculiar expressions. (7.) Particular kinds of contracts. V Performance. (1.) Substantial performance; waiver thereof ; partial performance. (2.) Excuses for nonperformance (3.) Time and place. j (4.) Other cases of performance and breach. ' VI. Modification: Extinguishment. (1,) Rescission or avoidance. (2.) Discharge; modification (3.) Other matters. [As to the action of contract, under the practice act, see Assumpsit; Covenant; Debt; Pleading. As to reforming a contract, see Equity Jurisdic- tion, II, (13) As to specific performance of a con- tract, see Specific Performance. Generally, see, also. Action- agency; alteration of Instru- ment; Arbitration; Assignment; Assumpsit; Attachment: Bailment; Bankruptcy; Betting, etc.; Bill of Exchange, etc.; Bond; Carrier; Chattel Mortgage ; Collateral Security ; Condition- Conflict of Laws; Constitutional Law ; Corporation; Covenant; Damages; Deed; Duress ; Evidence , Executor and Administra- tor; Fraud; Gift, Guaranty; Guardian and Ward; Husband and Wife; Insolvent; Insur- ance ; Joint Liability, I ; Laches ; Landlord and Tenant ; Limitation • Lord's Day ; Master and Servant ; Mortgage ; Partnership ; Party- wall; Personal Property; Promise to Marry; reward, Offer of ; Sale ; Statute of Frauds; Surety; Town; Trust; Usage; Usury; Vendor And Vendee; Waiver.] I. General Rules. (1.) Implied Contract. [See, also, Assumpsit.] 1, "Where a conveyance, or other grant, con- tains a stipulation that a mortgage on the prop- erty shall be paid, or any other act shall be done, by the grantee, the acceptance of the instrument constitutes an implied contract with the grantor to do the act, for which he may maintain an action for the full amount, although, if a debt, he has not paid it. Guild v. Leonard, (18 P.) 35 511; Newell «. Hill, (2 Met.) 43 180; Ross v. Tremain, (2 Met.) 43 495; Pike v. Brown, (7 0.) 61 1 33 ; Braman v. Dowse, (12 C.) 66 227; Hancock v. Carlton, (6 G.) 72 39; Jewett v. Draper, (6 A.) 88 434; Maine ». Cumston, 98 317; Furnas v. Durgin, 119 500; Pettee v. Peppard, 120 522; Gaffney v. Hicks, 124 301; Locke v Homer, 131 93; Reed v. Paul, 131 129; Williams©. Fowle, 132 385. 2. Such a promise is not a covenant; and where the stipulation is to keep in repair a building on adjoining land of the grantor, a subsequent grantee of the adjoining land can- not enforce it. Martin v. Drinan, 128 515. [As to the right of the mortgagee or other third person, to maintain the action, seepost, I, (3).] 3. But the acceptance of a conveyance of land, in terms subject to a mortgage, does not raise such a promise. Strong v. Converse, (8 A.) 90 557; Drury v. Tremont Imp. Co., (13 A.) 95 168; Fiske v. Tolman, 124 254. 4. Nor is it raised by proof, that the land was purchased for less than its value. Kilborn v. Robbins, (8 A.) 90 466. 5. Aliter, if the deed contains a covenant against all incumbrances, except the mortgage, and it is shown that the assumption of the mortgage was part of the consideration. Drury v. Tremont Imp. Co., (13 A.) 95 168. 6. Where a deed contains a. stipulation, that the grantee assumes a mortgage on the property, it is immaterial that the grantor, when he pays the mortgage, takers an assignment of it; or that when the mortgage was made, the grantor held the land intrust for the grantee and others; and that the mortgage was given to take up the grantee's share of a former mortgage. Lappen v. Gill, 129 349. 7. Or that the grantee has since sold the property to another Reed «.Paul, 131 129. 8. If, however, the mortgage has been paid out of the land, or extinguished by the act of the mortgagee, nominal damages only are re- coverable. Muhlig v. Fiske, 131 110. 9. The grantee in such a deed cannot, in the absence of fraud, show by oral testimony that he did not agree to assume the mortgage, or authorize the insertion of the stipulation. Muhlig v. Fiske, 131 110. 10. The law will not imply a promise, where there was an express promise; nor will it imply a promise of any person, against his express declaration, repugnant to an implication of a promise, except that where the law creates a 240 CONTEACT, I, (1), (2). duty, it implies a promise, notwithstanding the party's protest. Whiting v. Sullivan, 7 107; Norris v. Lynch, 121 586; Earle v. Cohurn, 130 596. 11. Nor can a contract be implied in addition to an express written contract relating to the same snbject. Brown v. Fales, 139 21. 12. And an agreement to pay the interest due upon another's promissory note, and taxes upon his property morgaged to secure it, raises no implied promise to pay the principal. Home Sav. Bk. v. Mackintosh, 131 489. 13. And where an insane person is received into an asylum, upon the express written promise of a third person to pay for his board and other expenses, a promise cannot be implied, on the part of the insane person, to pay anything; and it is immaterial that credit was also given to his estate, and that his guardian subsequently promised to pay, and in part paid the demand. Mass. Gen. Hospital u. Fairbanks, 129 78; Mass. Gen. Hospital v. Fairbanks, 132 414. 14. Reception and use of property, without knowledge that it comes from the plaintiff, will not raise an implied promise to pay for it. There must be a privity of contract between the parties. Hills v. Snell, 104 173; Boston Ice Co. ii. Potter, 123 28. 15. Thus where A, who had taken ice from B, refused any longer to take it, and ordered ice from C, and B, by arrangement with C, un- known to A, continued to furnish it, B cannot recover. Boston Ice Co. v. Potter, 123 28. 16. "Where A, having employed B to do cer- tain work at certain wages, afterwards sold out to C, and B continued to work for C, this is not a contract, but it is evidence of a contract, to pay the same wages. Connor v. Hackley, (2 Met.) 43 613. 17 So where an indentured apprentice, after his master's death, continued to work for widow, both supposing the indenture still binding, this does not necessarily show an undertaking by the widow to fulfil the indenture. Hennessey v. Deland, 1 10 145. 18. "Where the president of a corporation claims the salary allowed to his predecessor, the claim may be controlled by evidence, that such was not the understanding and intention of the parties. Comm. Ins. Co. v. Crane, (6 Met.) 47 64. 19. "Where several persons, wishing to pro- cure a bank to be incorporated, meet and em- ploy one of the associates to attend the legisla- lature to procure the charter, and he attends, but fails to procure it, all are liable to him for his services upon an implied contract. Sproata. Porter, 9 300. 20. Where two agree under seal with a third, that the latter shall convey land to one of the former, at a price to be paid for in work, part by the other, and part by the grantee, the grantee is liable to his associate for the latter's work. Blaisdell v. Gladwin, (4 C.) 58 373. [For various other cases relating to implied prom- ises, see Assumpsit, passim ; Bank, arts. 101, 103 ] (2.) Requisites of, and parties to, an ex- press contract. I See also, Town, II; V, (3).] 21. In order to make a written or oral con- tract, the meeting and assent of two minds are requisite; and where the contract relied upon was oral, and there is any question upon the evidence, it is for the jury to say whether the minds of the parties met, and both understood that they had made an agreement. Tisdale «. Harris, (20 P.) 37 9. Thruston v. Thornton, (1 C.) 55 Palmer v. Williams, (13 G.) 79 j Camerlin v Palmer Co , (10 A.) 92 £._. Winchester v. Howard, 97 304; Go-win? v. Knowles, 118 232, Harlow ». Cuf. tis, 121 320. 22 If A delivers goods to B, upon his repre- sentation that they are for an undisclosed prin- cipal in good credit, and no such principal exists, the contract is void at A's election. Rodliff v. Dallinger, 141 1. 23. If there is a mutual misapprehension or mistake, with reference to the subject or terms of the contract, the contract is net in fact made; aliter, as to a misapprehension of its legal effect. Rice v. Dwight Man. Co., (2 C.) 56 80; Kyle v. Kavanagh, 103 356. 24. The assent need not be simultaneous with the proposal; and it may be inferred from sub- sequent acts, if the time to assent was not limited. Saunders v. Clark, 106 331; Gowing v. Knowles, 118 232. 25. A written contract binds, although the parties understood it differently. . Sumner v. Williams, 8 162; Miller v. Lord, (11 P.) 28 11. 26. The acceptance of the report of a com- mittee, or an officer or agent for a town or other corporation, is not a contract on the part of the corporation, if it merely states the terms upon which a contract may be made. Aliter, if it states that a contract has been made. Dudley v. Weston, (1 Met.) 42 477; Shaw v. Stone, (1 C.) 55 228; Collins u. Dorchester, (6 C.) 60 396; Wheeler v. Framingham, (12 C.) 66 287; Niles v. Patch, (18 G.) 79 254; Dunham *. Bos- ton, (12 A.) 94 375; Palmers. Haverhill, 98 487; Arlington v. Peirce, 122 270; Carroll v. St. John's, etc., Soc, 125 565. 27. A transaction, which is incomplete, be- cause all the terms were not fully agreed to, is not a contract. Parker v. Parker, 17 370; Plympton v. Cutler, (10 P.) 27 259; Fitchburg Railroad «. Boston & M. R. R, (3 C.) 57 58; Lyman v. Robinson, (14 A.)* 96 242; Portland, etc., R. R. *. Boston & M. R. R, 101 269. 28. A delivery by one party, and acceptance by the other, are essential to the completion of & written contract; it is always a question of fact for the jury, whether there was a complete and unconditional acceptance. , Adams Bk. v. Jones, (16 P.) 33 574; Baird «. Williams, (19 P.) 36 381; Cod dington v. Goddard, (16 G.) 82 436. CONTEACT, I, (2). 241 Eaunce «. State M. L. Ass. Co., 101 279; Watkins v. Bowers, 119 383. 89. A delivery and acceptance need not be express; they may be inferred from the parties' Tufts «. Plymouth Gold M. Co., (14 A.) 96 407; Springfield v. Harris, 107 533. 30. And if a person accepts a policy of in- surance or other contract, without dissent, the law presumes that he knows and assents to its contents. Rice v. Dwight Man. Co., (2 C.) 56 80; Graces. Adams, lOO 505; Monitor Ins. Co. e. Buffum, 115 343. 31 See further, as to sufficiency of proof of delivery and acceptance, Wilson «. Clements, 3 1; Adams v. Bean, 12 137; Dedham Bk. v. Chick- ering, (3 P.) 20 335; Train «. Gold, (5 P.) 22 380; Thayer v. Middlesex Ins. Co., (10 P.) 27 326; Bodwell®. Webster, (13 P.) 30 411; Canfield©. Ives, (18 P.) 35 253; Hayden v. Thayer, (5 A.) 87 162;Blanchard«. Blackstone, 102 343; Springfield S.Harris, 107 532; Mattoon D.Barnes, 112 463. [See, also, Deed, I, (3); I, (4).] 32. If one executes and delivers his part of an indenture, it is his deed, although the other party did not execute it. Codman v. Hall, (9 A) 91 335; Car- roll v. St. John's, etc., Soc, 125 565. 33. Where an instrument purports to be the act of several, but is executed by some only, the question, whether it is binding upon those who have executed it, depends upon the ques- tion, whether they would have a remedy, by way of indemnity or contribution, against the others, which is lost by their failure to exe- cute it. Mattoon v. Barnes, 112 463. See, also, upon this point, Cutter v. Whittemore, 10 442, Adams v. Bean, 12 137; Bean » Parker, 17 591; Wood v. Washburn, (2 P.) 19 24; Warring v. Williams, (8 P.) 25 322; Herrick ». Johnson, (11 Met,) 52 26; Howe v. Peabody, (2 G.) 68 556; Russell v. An- nable, 109 72; Yale v. Wheelock, 109 502. 34. But if the contract, by neeessary impli- cation, shows, upon its face, that it was not to be binding until the others had signed it, it is a nullity as to those who have signed. Andrews «. Etheridge, 9 383. 35. A person who is not named as a contract- ing party, in the body of an instrument signed by him, containing a distinct promise to the party to whom it is delivered, is liable thereon, whether he signs it alone, or jointly with, another, named therein as a party. Smith ». Crooker, 5 538; Union Bk. v. Willis, (8 Met.) 49 504; Nat'l Pem- berton Bk. e. Lougee, 108 371; Dan- ker t>. Atwood, 119 146; Ahrend «. Odiorne, 125 50; Blackmer v. Davis, 128 538. [See, also, Bond, I.] 36. But where a contract, purporting to be between two persons, contains mutual and de- VOL, 1—31 pendent stipulations, and is signed by them and a third, an action will not lie upon the instru- ment in favor of one party, against the other and the third jointly; and oral evidence is inadmis- sible to show that the third person signed it as surety for the other. Blackmer v. Davis, 128 538. 37. Qu., whether the plaintiff could show an independent joint oral contract to perform the stipulations. Blackmer v. Davis, 128 538. 38. Extrinsic and oral evidence is not admis- sible to show how the contract, when it was made, was understood by the parties. Bigelow v. Collamore, (5 C.) 59 226; Harper®. Gilbert, (5 C.) 59 417; Gould u. Norfolk L. Co., (9 C.) 63 338; Black- mer*. Davis, 128 538. [See, also. Evidence, VII.] 39. A memorandum at the foot of a note, that it is secured by a mortgage, is a contract to that 'Shaw «. Lowell Meth. Soc, (8 Met.) 49 223. 40. An action will not lie upon an agreement that a corporation, bound to keep roads, etc., in repair, "shall remain bound, as now," to keep them in repair, as the agreement adds nothing to the former liability. Coram. «. Boston & R. Mill, (8 A.) 90 296. 41. And although no particular form of words is necessary to constitute a promise, still mere words of assurance are not a promise. Tucker «. Haughton, (9 C.) 63 350. 42. So a license, which adds nothing to what the party had before, is not a contract. Fitchburg R. R. e. Boston & M. R. R., (3C.) 57 58. 43. Berrible, that in this Commonwealth, the rule, contrary to that which obtains in the IT S. supreme court, in England, and many of the states, is that where a contract is made by mu- tual letters, it is complete, only when the letter accepting the offer is received by the person making it; not when it is mailed. McCulloch v. Eagle Ins. Co., (1 P.) 18 278; Lewis «. Browning, 130 173. 44. Where an insurance company sent to the plaintiff's agent a written application and pre- mium note to sign, agreeing to issue to him a policy on his returning them signed, and after the lapse of two weekly mails, the plaintiff signed and returned them by mail, and, a fire having meanwhile occurred, the company re- fused to issue the policy, it was held, that the company was not bound. Thayer d. Middlesex Ins. Co., (10 P.) 27 326. 45. A written offer may be retracted at any time before notice of acceptance, or, if no no- tice is requisite, before the act referred to is done. Craig ii. Harper, (3 C.) 57 158; Ils- ley «. Jones, (12 G.) 78 260. 46. But when it is thus accepted, the con- tract is complete. Train v. Gold, (5 P.) 22 380; Boston & M. R. R. r>. Bartlett, (3 C.) 57 224; Crocker v. Folev, (13 A.) 95 376. 242 CONTEACT, I, (2), (3). 47 And where the acts of the parties are of doubtful significance, the question of accept- ance is for the jury Mauger v Crosby, 117 330. [See, also, ante, art 28.] 48 A letter, stating the prices of certain goods, in answer to a letter asking the prices, is not an offer to sell the goods at those prices; and a reply, that the writer will take the goods at those prices, is an offer merely, which is not a contract till accepted. Smith v Gowdy, (8 A.) 90 566. LA» to an offer upon condition, see Condition II' W 49 A letter, in answer to one asking the prices for goods, which says " I will sell you at the same rate I sell your neighbors," is too indefinite to create a contract. Ashcroft v Butter worth, 136 511. 50. If, however, a subsequent memorandum renders the transaction definite, the memo- randum and the letters together make a good contract. Smith «. Colby, 136 562. 51. Where a person, making an offer, makes the formation of the contract dependent upon the receipt, by him, of actual notice of accept- ance, the contract is not binding until he re- ceives it Lewis « Browning, 130 173. 52. And an offer, requiring an answer "yes" or "no," and adding that unless the writer receives it by a certain date he shall conclude "no," is of that character; and sending the telegram to the office, by the date specified, does not bind him Lewis v Browning, 130 173. 53. A matual insurance company cannot maintain an action against one, who has re- fused to sign a premium note, or take a policy, made out on his application, at a rate agreed upon. Real Estate Ins. Co. ■». Roessle, (1 G.) 67 336. 54. Where one makes a continuing offer, and the other, without rejecting it, makes a counter- proposition, this does not necessarily end the first offer, which may still be accepted, unless withdrawn Foster v Boston, (22 P.) 39 33. 55. A continuing offer is not biuding as a contract, until accepted, but if accepted within a reasonable time, and before it is withdrawn, it becomes a valid and binding agreement as to both parties Train v. Gold, (5 P ) 22 380; Poster « Boston, (22 P ) 39 33; Boston & M. R. R. i). Bartlett, (3 CO 57 224; Crocket v. Boston, (5 C ) 59 182; Old Colony R. R. v. Evans, (6 G.) 72 25; Goward v. Waters, 98 596, Belli). Boston, 101 506; Bornstein v Lans, 104 214; Harvey v. Connecticut, etc., R R, 124 421. 56. A continuing offer, duly accepted, is a continuing contract for the time specified there- in, the breach of which, at any time duringthe period, entitles the other party to his damages. Harvey ». Connecticut, etc., Railroad, 124 421. 57. For rulings upon the construction and effect of particular continuing offers, and the contracts resulting therefrom, see Foster v. Boston, (22 P.) 39 33- Crocket v. Boston, (5 C.) 59 182; Bell v. Boston, lOl 506. 58. A written promise to pay certain fees is not binding, in favor of the person who ren- dered the services, in ignorance that such a promise had been made. Ball v Newton, (7 C.) 61 599. 59. A subscription paper for a meeting house, signed 'A, ten shares, $500," implies that shares are to be made, and there is no conlract if the house is not built, or shares are not issued. Newburyport U. Soc. v. Currier, (3 Met.) 44 417. 60. A contract, relating to the purchase and sale of a ship, is not binding, if the ship was then a wreck, which had been abandoned and sunk. Thomas v Knowles, 128 22. (3.) Enforcement by a person not a party. [As to covenants running with land, see Cove- nant II, (2)'.l 61. The rule is well settled in this Common- wealth, although elsewhere a different rule obtains, that a person who is not a party to a simple contract, and from whom no considera tion moves, cannot sue upon the contract, although he is named therein, and consequently that a promise made by one to another, for the benefit of a third, who is a stranger to the con sideration, will not support an action by the • Exchange Bk. « Rice, 107 37, Rogers » Union Stone Co., 130 581. Morrill v Lane, 136 93 See, also, Carter ■» Gault, (13 P.) 30 531; Wor cester Bk. ■» Wells, (8 Met.) 49 107; Payne v. Snow, (12 C.) 66 443; Millard «. Baldwin, (3 G.) 69 484; Field i Crawford, (6 G.) 72 116, Dow v Clark, (7 G ) 73 198, Colburn e. Phillips, (13 G.) 79 64, Exchange Bk v Rice, 98 288, Flint i>. Pierce, 99 68, Carrs Nat Security Bk., 107 45; Bailey v. New England Ins. Co., 114 177, Pettee v. Peppard,.. 120 522, Gamwell v. Pome- roy. 12*1 207; Cottage St, Church ». Kendall, 121 528: Prentice » Brim- hall, 123 291 ; Reed v. Home Sav. Bk. , 127 295; Morse » Adams, 130 585, note; Terry •». Brightman, 132 318. Dicta to the contrary, in Carnegie v. Morri- son, (2 Met.) 43 381; Brewer v. Dyer, (7 C.) 61 337, overruled; see Exchange Bk. v Rice, 107 37; per Gkay, I, p. 41. LSee, also, Assumpsit, 1, (2). Foi the ruie where the holder of a bill of exchange sues the drawee upon a promise to accept, made to the drawer, see Bill of Exchange and Promissory note, l, ( 98. An agreement to withdraw, and an aciuai , withdrawal, of a suit, form a sufficient consid-5 eration. „ ,„ Cutter «. Collins, (12 C.) 66 233; Wor- cester Mechs. Sav. Bk. v. Hill, 11<> «■ 99. But withdrawal without an agreement, express or implied, to withdraw, is not a . suffi- cient consideration for a promise by the allegea debtor. Paine v. Boston, 124 4S6. 100. Where the proceeding? are void, » where there is clearly no claim, orjhcrejis » CONTEACT, II, (1). 245 ■want of jurisdiction, semble, that a relinquish- ment thereof is not a sufficient consideration Wilbur v. Crane, (13 P.) 30 284; Pal- frey v. Portland, etc., Railroad, (4 A.) 86 55; Dunham v. Johnson, 135 310. AUter, where A gives his note to B to pro- cure C's release from an unlawful arrest. Robinson v. Gould, (11 C) 65 55. 101. An agreement with the debtor to for- bear, on payment of part of the debt, is with- out consideration. Warren v Hodge, 121 106. See, also, Wilson 0. Powers, 130 127. 102. But his agreement to pay extra interest suffices, and binds Mm and the creditor. Prouty v. Wilson, 123 297. i03. Where a guaranty is made, simultane- ously with the delivery of the principal contract, the consideration for the contract is a sufficient consideration for the guaranty; and if it is without date, the presumption is that it was then made. Adams «. Bean, 12 137; Benthall v. Judkins, (13 Met.) 54 265; Bickford v. Gibbs, (8 C.) 62 154. 104. But a subsequent guaranty requires a separate consideration. Tenney v. Prince, (7 P ) 24 243: Deshon 0. Dyer, (4 A.) 86 128. 105. A statement, in the guaranty of a note, that the guarantor has purchased the land mort- gaged to secure the note, is not, per se, sufficient evidence of a consideration. Parkman 0. Brewster, (15 G.) 81 271. [See, also. Bill of Exchange, etc., I, (4); Guar- anty, 1.1 106. Where a creditor forbears, at the request of a third person, to insist upon collateral secu- rity from the debtor to himself, and instead thereof, agrees that the debtor's property shall ~be transferred to a third person, who shall there- upon guaranty the debt, a promissory note, given by the third person pursuant to such an agree- ment, is for a valuable consideration. Parsons 0. Clark, 132 569. See, also, Stone v. White, (8 G.) 74 589. 107 The waiver of a breach of a contract is a sufficient consideration for a guaranty of its completion. Byington v. Simpson, 134 145. [See, also, post, art. 125. j 108. The compromise of a doubtful claim or defence is a sufficient consideration for a prom- ise. Barxow 0. Ocean Ins. Co., (4 Met.) 45 270; Cobb «. Arnold, (8 MeO 4f 403- Allis v. Billings, (2 C.) 56 19; Baston v. Easton. 112 438. [See Accord and Satisfaction, art. 3: Composi- tion.] 109. So an agreement by the plaintiff in a contested suit, not to enforce the execution, ex- cept against certain property, in consideration of the defendant's suffering a default, is bind- ing. Whitney v. Haverhill Ins. Co., (9 A) 91 35., ; 110. But ah agreement with tne debtor to accept a percen^age.ol an admitted debt, in full satisfaction thereof, is void for want of con- sideration, it not being part of a composition. Harriman v. Harriman, (12 G.) 78 341; Perkins v. Lockwood, 100 249. 111. The note or collateral promise of a third person will support such an agreement. Brooks v. White, (2 Met.) 43 283; Perkins v. Lockwood, lOO 249. 112. The assent of an insurance company, to the transfer of a policy, is a sufficient considera- tion for the guaranty of the premium note by the assignee. New England Ins. Co. «. De Wolf, (8 P.) 25 56. 113. Where a policy of fire insurance is issued to the mortgagor, loss payable to the mortgagee, and, after alienation by the mort- gagor, and entry_ for breach by the mortgagee, whereby the policy becomes void, the company makes an indorsement that the policy shall at- tach to the mortgagee's interest, the indorsement is void for want of consideration Davis 0. German Am. Ins. Co., 135 251. 114. But where there is a transfer of the ' premises and a subsisting policy, the substitu- tion by the company of the grantee as the in- sured, needs no additional consideration to sup- port it. Davis 0. German Am. Ins. Co., 135 251. 115. A note given for a premium of marine insurance, cannot be recovered, if the vessel was unseaworthy when the risk would have begun. Comm. Ins. Co. v. Whitney, (1 Met.) 42 21. '' V 116. A promise to refund an over payment, made by mistake, is founded upon a sufficient consideration. Grew «. Burditt, (9 P.) 26 265; Smith 0. Mayo, (1 A.) 83 160. 117 A judgment is a sufficient consideration. Loring «. Bridge, 9 124; McClees v. Burt, (5 Met.) 46 198. 118. Where the constitution of a corporation or association provides for the payment by members of certain periodical dues, the benefits, to be derived from membership, are a sufficient consideration for the undertaking with the corporation, which each member assumes to pay the dues, by subscribing the roll, or becoming a member without subscribing. Middlesex Husbandmen v. Davis, (3 Met.) 44 133; Athol Music Hall t>. Carey, 116 47 1 ; Cottage St. Church v. Kendall, 121 528; United Hebrew Ass'n v. Ben shimol, 130 325. 119. And where the association is of a bene volent character, its expenditures for charitable purposes, in reliance upon the dues, raises a sufficient consideration. Bryant 0. Goodnow, (5 P.) 22 228; Miricko. French, (2 G.) 68 420; United Hebrew Ass'n 0. Benshimol. 130 325. 120. And, generally, any liability or obliga- tion, legal or equitable, or other unequivocal act, such as expending or advancing money upon the faith of the promise, will support a promise to pay money to promote the objects of a cor- poration. 246 CONTEACT, II, (1). Fisher v. Ellis, (3 P.) 20 322; Bryant I «. Goodnow, (5 P.) 22 228; Hanson Trustees v. Stetson, (5 P.) 22 506; Am- herst Academy v. Cowls, (6 P.) 23 427; Williams College v. Danforth, (12 P.) 29 541 ; Thompson «. Page, (1 Met.) 42 565; Ives v. Sterling, (6 Met.) 47 310; Wat- kins v. Eames, (9 C.) 63 537; Ladies' Coll. Inst. v. French, (16 G.) 82 196. 121. It is not sufficient that others were led to subscribe by the subscription sought to be enforced. Cottage St. Church «. Kendall, 121 528. 122. These case=! modify dicta or rulings in Boutell v. Cowdin, 9 254; Limerick Academy v. Davis, 11 113; Farmington Academy v. Allen, 14 172; Bridgewater Academy «. Gilbert, (2 P.) 19 579. 123. Where an executive committee is created by the terms of a subscription paper, whereby the subscribers agree to contribute proportion- ally towards the deficiency in defraying the expenses of a musical festival, the executive committee may maintain an action against a subscriber. Davis v. Smith Am. Organ Co., 117 456. [See, also. Assumpsit, III, (3).] 124. Where a person refuses to fulfil a written contract with another, and the latter makes a new contract with him, which operates as a rescission of the former, the new contract is founded upon a sufficient consideration. Rollins v. Marsh, 128 116. See, also, Dean v. Skiff, 128 174. 125. And, generally, the release of a party from the performance of a contract forms a sufficient consideration, for his promise to pay money, or do any other act. Munroe v. Perkins, (9 P.) 26 298; Weldo. Nichols, (17 P.) 34 538; Cutter «! Cochrane, 116 408. [See, also, ante, art. 107 and poet, VI.] 126. Assuming a pecuniary liability for a third person is a sufficient consideration for a promise to indemnify the person assuming it, or for a deed, mortgage, pledge, note, or other security, given to indemnify him. Jewett v. Warren, 12 300; Cushing v. Gore, 15 69; Cutler «. Dickinson, (8 P.) 25 386; Kempton v. Coffin, (12 P.) 29 129; Little v. Little, (13 P.) 30 436; Avery v. Halsey, (14 P.) 31 174. [See, also, Bond, III, (1); Guaranty, I.] 127. An agreement to compensate a public officer, for doing that which he is bound to do, in the discharge of his official duty, is without consideration, and no implied agreement to do so, arises from a request. Pool v. Boston, (5 C.) 59 219; Davies «. Burns, (5 A.) 87 349; New Haven, etc., Co. v. Hayden, 117 433; Brophy v. Marble, 118 548. 128. But a promise to one's salaried employee, to pay him for a service not contemplated by the employment, is founded upon a sufficient consideration. Bichardson «. Hooper, (13 P.) 30 446. 129. In general, a promise, in consideration of the promisee doing what he has already agreed to do, is without consideration. Smith v. Bartholomew, (1 Met.) 42 276; Jennings v. Chase, (10 A.) 92 526. 130. For exceptions, see Munroe v. Perkins, (9 P.) 26 298- Peck v. Requa, (13 Gj 79 407. 131. But such a promise will suffice to save the statute of limitations. Belfast v. Leominster, (1 P.) 18 123; Miles v. Linnell, 97 298. [See Limitation op Action, V, (6).] 132. Where a written contract has been made between A and B, by which A agrees to pay B a compensation for selling his house, the suW quent performance by B of services, in prose- cution of such employment, forms a sufficient consideration for A's promise to pay him there- for. Goward v. Waters, 98 596. 133. A note, to which is attached the genuine signature of the maker, is a sufficient considera- tion for a p'romise to pay a price therefor, although the payee's indorsement is forged. Seal v. Roberts, 113 525. 134. Where a partner gives the note of the firm for his individual debt, and the creditor delivers it to the other partner, to secure it by attachment, upon the latter guarantying it, the guaranty is upon sufficient consideration, although the guarantor erroneously supposed that he was liable. Flagg v. Upham, (10 P.) 27 147. 135. A guaranty, by one partner, of a debt due to the firm, is a sufficient consideration for an assignment by the debtor. Carroll v. Sullivan, 103 81. 136. And the assignment, by one partner to another, of a debt due from him to the firm, is a sufficient consideration for the former's note, although the other partners did not know who the debtor was. Leonard t>. Robbins, (13 A.) 95 217. 137. A mere moral obligation is not a suffi- cient consideration, unless a good or valuable consideration has once existed. Mills v. Wyman, (3 P.) 20 207; Loo- mis v. Newhall, (15 P.) 32 159; Dodge v. Adams, (19 P.) 36 429; Shepherd ». Young, (8 G.) 74 152; Cole v. Bedford, 97 326, note. 138. And a promise to pay a debt, which has been released by the creditor, is without con- sideration. Valentine v. Foster, (1 Met.) 42 520; Hale v. Rice, 124 292. 139. But a promise to pay a debt, discharged under the bankrupt or insolvent law, is good without a new consideration. Maxim e. Morse, 8 127; Way «. Sperry, (6 C.) 60 238. 140. So is a promise to pay a debt to an assignee thereof. Crocker «. Whitney, 10 316; Mowry «. Todd, 12 281; Jones e. Witter, 1» 304. 141. A note, given by a father to his son, on condition of the latter releasing his interest m CONTEACT, II, (1), (2). 247 the promisor's estate, or to equalize the distri- bution of his property, is without considera- tion. Loring v. Sumner, (23 P.) 40 98. 142. A note given by a father for his son's defalcation, where the amount is credited to the son on the promisee's books, is on sufficient con- sideration. Popple v. Day, 123 520. 143. So is a promise by a father, made at the time of apprenticing his son, that the latter should remain with his master six months after he became of age. Phelps «. Townsend, (8 P.) 25 392. 144. Services previously rendered, or ex- penses previously incurred, by the promisee, form no sufficient consideration for a contract to pay therefor, although beneficial to the promisor, unless they were rendered or incurred at his express or implied request, or in perform- ance of some duty or obligation resting upon him. Balcom «. Craggin, (5 P.) 22 295; Greene v. Maiden, (10 P.) 27 500; Loo- mis v. Newhall, (15 P.) 32 159; Dear- born v. Bowman, (3 Met.) 44 155; McGilvery v. Capen, (7 G.) 73 523. 145. So a promise to pay more, or to make repairs, etc. , made after a deed or lease is exe- cuted, is without consideration. Aliter, if made pursuant to a previous agreement. Williams v. Hathaway, (19 P.) 36 387; Austin t>: Boyd, (24 P.) 41 64; Vass v. Wales, 129 38. See, also, Pierce v. Woodward, (6 P.) 23 206. 146. A widow's note, for her deceased hus- band's debt, is without consideration, if he left no assets, although the creditor gives a receipt in full from the estate. Williams v. Nichols, (10 G.) 76 83. 147. But the surrender of an intestate's note to his administrator, is a sufficient considera- tion for the latter's personal note, although his account has been allowed, and he has since re : ceived no new assets. Wilton «. Eaton, 127 174. See, also, Stebbins «. Smith, (4 P.) 21 97; Wheaton v. Wilmarth, (13 Met.) 54 422; questioned in Wilton v. Baton, 127 174. 148. For various additional illustrations of these principles, see Bill of Exchange ahd Pbomissort Note, and the other titles cited at the head of this title; also the following cases, in which the consideration of a contract was held to be sufficient. Bowers v. Hurd, 10 427; Wilson v. Church, (1 P.) 18 23; Pierce*. Wood- ward, (6 P.) 23 206; Kellogg v. Curtis, (9 P.) 26 534; Bursley v. Hamilton, (15 P.) 32 40; Dexter o. Clemans, (17 P.) 34 175; Dewey v. Field, (4 Met.) 45 381; Woods v. Eice, (4 Met.) 45 481; Farmers & M. Bk. i>. Jenks, (7 Met.) 48 592; Myers v. Phillips, (7 G.) 73 508; Small v. Jenkins, (16 G.) 82 155; Humphrey v. Haskell, (7 A.) 89 497; Prescotto. Ward, (10 A.) 92 203: Doyle v. Dixon, 97 208; Albro v. Merritt, 97 517; Scott v. McKinney, 98 344; Dean s. Carruth, 108 242. Also the following cases, in which the consideration was held to be insufficient. Learned «. Bryant, 13 224; Warren v. Stearns, (19 P.) 36 73; Vincent v. Gorham, (3 Met.) 44 343; Comm. v. Johnson, (3 C.) 57 454; Kingsbury v. Ellis, (4 C.) 58 578; Shattuck v. Eastman, (12 A.) 94 369; Estey v. Westminster, 97 324; Cole v. Bedford, 97 326, note; Warren*. Dur- fee, 126 338. 149. Where a contract is founded, partly upon a sufficient, and partly upon an insuffi- cient consideration, and the' same can be appor- tioned, either from its terms, or by extrinsic evidence, the plaintiff's recovery may be con- fined to the amount of the sufficient considera- tion. Parish v. Stone, (14 P.) 31 198; Lor- ing v. Sumner, (23 P.) 40 98; Guild v. Belcher, 119 257. [.See, also, post, art. 216.1 150. But an entire and unapportionable con- \ tract will be sustained to the full amount, if one I consideration is sufficient, and another insuffi- I cient. Loomis v. Newhall, (15 P.) 32 159; Prescottc. Ward, (10 A.) 92 203. [See, also, post, art. 215.] (2.) Illegal consideration. 151. A promise to an officer, to induce him to forbear to arrest a debtor, or to allow him to escape, is void as against public policy. Aytr v. Hutchins, 4 370; Denny v. Lincoln, 5 385. 152. So is a note given for illegal fees, as be- tween the original parties Comm. 1). Cony, 2 523. 153. So is a bond to deliver up a person ar- rested upon a criminal charge, and allowed to go at large. Churchill v. Perkins, 5 541. 154. But an indemnity to an officer, to induce him to execute process, where a question arises as to his right to do so, is good. Marsh *. Gold, (2 P.) 19 285; Train v. Gold, (5 P.) 22 380; Foster v. Clark, (19 P.) 36 329. [See, also, Bokd, III, (lj, L^tice and Officer, art. 34 to 38. As to contracts to pay an officer for services, see ante, art. 127.] 155. A promise to indemnify one, for remov- ing another's property, is valid, if the promisee had reason to believe it was the property of the promisor. Avery v. Halsey, (14 P.) 31 174. 156. A promise to pay for services rendered in improperly influencing legislation, is void. Frost «. Belmont, (6 A.) 88 152. 157. Or for services in making a contract prohibited by statute. Stebbins v. Leowolf, (3 C.) 57 137. 158 But. services, in procuring recruits for the TJ. S. army, form a good consideration, although the person rendering them has no peculiar interest in filling the quota. Combs v. Scott, (12 A.) 94 493. 159. A promissory note, given to a magistrate or an officer, for the fine and costs imposed 248 CONTEACT, II, (2), (3). upon a prisoner upon a criminal charge, to re- lease the prisoner, is void. Bills v. Comstock, (12 MetJ 53 468; Kingsbury v. Ellis, (4 C.) 58 578. 160. But a release by a person, whose liquors had been destroyed, under a statute of doubtful constitutionality, in consideration of an agree- ment to endeavor, by proper means, to procure his pardon from the governor and council, is founded upon a valid consideration. Timothy 11. "Wright, (8 G.I 74 522. [Sec, also, Compounding Chime.] 161. An action will not lie, for services rendered by a woman to a man, while cohabit- ing with him, without marriage; but she may recover upon an express promise to repay ex- penses, incurred by her in providing for the household, if it was made without reference to their continued cohabitation. Robbins v. Potter, (11 A.) 93 588. 162 A promise by a husband to pay a trustee money, for the support of his wife, in contem- plation of their separation, is valid. Fox v. Davis, 113 255. [As to contracts founded upon an agreement for by-bidding at an auction, see Auction.] [As to contracts founded upon a bet, wager, or gaming, see Betting.] 163. A stranger cannot avoid a contract for a conveyance of land, on the ground that it was founded upon a breach of an agent's or trustee's duty. Pingree v. Coffin, (12 G.) 78 288. 164. A contract, founded upon a considera- tion, which is a violation of the provisions or the policy of the insolvent laws, cannot be enforced. Downs e. Lewis, (11 C.) 65 76; Dex- ter v. Snow, (12 C.) 66 594; Blasdel. v. Fowle, 120 447. [See Bankruptcy; Composition; Insolvent.] 165. A person cannot avoid his contract, on the ground that it has been assigned in fraud of the creditors of the other party. Pickens ». Hathaway, 100 247. [See Fraud, III.] As to contracts founded upon a violation of the laws of a foreign country, see Con- flict of Laws.] 166. One, who advances money for the repair of an American ship in an enemy's port, relying upon the master's representation that she be- longed to a neutral nation, may recover there- for here, after the return of peace. Musson v. Fales, 16 332. See, also, as to dealing with the enemy, Coolidge v. Inglee, 13 26; overruled, Patton v. Nicholson, 3 Wheat., 204. [For parallel cases, where the terms of the con- tract itself were illegal, irrespective of the consider- ation, see post. III.] (3.) Failure of consideration. 167. Where a promise is founded upon the conveyance of land, or the transfer of personal property, and no title passes thereby, there is a total failure of consideration, and .the promise cannot be enforced, although the conveyance or other instrument contains covenants of title. Bayley v. French, (2 P.) 19 586; Dickinson v. Hall, (14 P.) 31 217; Rice v. Goddard, (14 P.) 31 293; Trask v. Vinson, (20 P.) 37 105; Basford s Pearson, (9 A.) 91 387; Warner v Crouch, (14 A.) 96 163. 168. Where, however, the promise is founded upon an executory agreement to convey prop- erty, to which the promisor had no title, the consideration is sumcient, in the absence of fraud. Trask «. Vinson, (20 P.) 37 105- Stearns v. Foote, (20 P.) 37 432. 169. But a failure to convey at the appointed time is a failure of consideration. Stone v. Fowle, (22 P.) 39 166. 170. And where A and B make an agree- ment, reciting that B claimed to own one quarter part of land held by A, and thereupon providing, among other things, for payment of one quarter of the rents to B, and for defraying by B one quarter of the expense of a building being erected by A, this agreement binds both, although B had no interest, and A was the sole owner. Spear v. Hancock, (6 A.) 88 205. 171. And where the promisor expressly agrees to assume the risk of the title, the promise is binding. Kerrs. Lucas, (1 A.) 83 279. 172 So where the promisee was a finder of the property sold, and no owner appeared to claim it, after four years. Ellery «. Cunningham, (1 Met.) 42 112. 173. A mortgage or other incumbrance is not a failure of consideration within the rule. Sanger v. Cleveland, 10 415; Smith ii. Sinclair, 15 171. 174. But where a bank agrees to pay divi- dends upon certain of its shares, on the prom- isee leaving them with the bank, and it is after- wards judicially determined that he does not own them, the agreement is not enforceable. Tobey «. Wareham Bk., (13 Met.) 54 440. 175. Eviction from land, the purchase of which was the consideration of a note, is a failure of consideration, although the grantee knew the infirmity of title. Knapp v. Lee, (3 P.) 20 452. 176. Where a vendee receives only part of the property sold, there is a failure pro tanto of the consideration of a note, given for the pur- chase money. Dyer ». Homer, (22 P.) 39 253. 177. And where the consideration of a note was tuition for a specified time, during all of which the promisor was prevented from re- ceiving the tuition, there is a total failure of consideration. Stewart *. Loring, (5 A.) 87 306. 178. Where an attorney of another state re- moved to this Commonwealth, and practiced here, but was never admitted here, his disquali- fication is no defence to an action on a note, given by a student in his office for tuition, where the student has, in fact, been admitted upon his certificate. M „ on Knowles v. Parker, (7 Met.) 48 30. 179. And, generally, he who has received the benefits of his bargain, although not in the CONTKACT, II, (3); III, (1). 249 precise form stipulated, cannot allege a failure of consideration. Thayer n. Connor, (6 A.) 88 574. 180. Where a tenant having a lease, which provides for suspension of the rent, in case of lire, gives his landlord his note, in considera- tion of the cancelment of the lease, the destruc- tion by fire of the premises, during the term, is not a partial or total failure of consideration. Brooks v. Cutter, 1 19 132. 181. Where A gave B a chattel mortgage, to secure him as surety upon A's note, and after- wards sold the property to C, subject to the mortgage, upon C's bond to indemnify A and B against the note, B's subsequently taking pos- session, or foreclosing the mortgage, is not a failure of the consideration of C's bond. Shattuck 11. Adams, 136 34. 182. A failure to fulfil an agreement for the purchase of property, is a defence to an action upon a note, given in consideration of such an agreement, without a tender of a conveyance. Hawks v. Truesdell, (12 A.) 94 564. 183. A note, given upon the conveyance of land, is not either wholly or partly avoidable for failure of consideration, by the failure of the grantor to join in the construction of a street, bounding upon the land, pursuant to a previous written agreement for the sale. Loring 11. Otis, (7 6.) 73 563. 184. Where A received money from B, upon an agreement to procure from C and cancel certain notes of B, and the notes had been pre- viously, without either party's knowledge, transferred to one, who sued B, and recovered judgment, and in the suit charged A as trustee for the money received from B, B cannot re- cover against A the money so paid to A, which A has paid over on the execution. Cady v. Clark, (16 G-.) 82 73. 185. A contract for the purchase of a ship is void, if the ship has then been wrecked and sunk. Thomas v. Knowles, 128 22. [For various other rulings, relating to failure of consideration-see Assumpsit, III, 12) : Bill op Ex- change and Promissory Note, I, (6).] III. Validity. (1.) Illegality. [For parallel rulings, where the consideration was invalid, see ante, II, (2), and the titles therein re- ferred to.] 186. No waiver by a defendant, and no con- sent of parties, can oblige a court to try a cause, which, upon the plaintiff's own showing, is founded upon an illegality. Cardoze n. Swift, 113 250. [See Action, art. 37.] 187. A contract of sale, made and completed on Sunday, is unlawful by statute; and neither party can sue the other, either H>on the con- tract itself, or for any deceit practiced in pro- curing it, or warranty made thereupon. Bobeson n. French, (12 Met.) 53 24; Hulet v. Stratton, (5 C.) 59 539; Hall ». Corcoran, 107 251; Cranson v. G-^ss, 107 439; Cardoze n. Swift, 113 250. [See, also, Lord's Day, II, (1). 1 Vol. 1-32 188. A contract to do any act forbidden by a statute, under a penalty, is void, although the statute does not expressly declare it to be void. Wheeler n. Russell, 17 258; Allen ■v. Hawks, (13 P.) 30 79. 189. If a statute makes a contract void, he whp asserts its illegality must allege and prove that the case is within the statute. Bayley v. Taber, 6 451; Geer v. Put- nam, 10 312; Robeson v. French, (12 Met.) 53 24. 190. The failure of a trader to pay the United States revenue tax, does not invalidate sales made by him, or prevent his recovering therefor. •Larned n. Andrews, 106 435. [For rulings relating to contracts for the sale of intoxicating liquors, etc., without the Common- wealth, with intent to violate our statutes, see Con- flict or Laws, I, III, (4).] 191. An actor may maintain an action for his services in an unlicensed theatrical exhibition, if he did not know that his employer had no llPGIlSG Roys v. Johnson, (7 G.) 73 162. 192. An action will not lie to recover the price of mortgaged property, sold in violation of }he statute, and returned by the purchaser to the seller. Bryant v. Pollard, (10 A.) 92 81. 193. A contract to form a corporation in the District of Columbia, where the statute prohib- its the payment of the capital stock in anything but money, by payment of the capital, part in money and part in patents, is illegal here, and an action thereupon will not lie here. Maine n. Butler, 130 196. 194. A contract, by which a shareholder in a corporation agrees to procure the appointment or election of the purchaser as an officer of the corporation, is void, as against public policy. Guernsey v. Ccok, 120 501; Wood- ruff v. Wentworth, 133 309. 195. In a case, not affected by the bankrupt or insolvent law, a debtor has a right to confess judgment to give a creditor a preference; and an assignment to a stockholder of a judgment, thus taken against a corporation by another stockholder, is not rendered illegal, by the rep- resentations of the assignor to the purchaser, that he could, by means of the judgment, ac- quire the title to all the property of the corpora- tion, and thus oust the other creditors and stock- holders. Cole v. Boardman, 123 548. 196. A contract, by the owner of a vessel, to indemnify the master for assaults and batteries upon the crew, is illegal; but a contract to in- demnify him against the expense of groundless suits for chastisement of the crew, within proper limits, and in the preservation of disci- pline, is legal. Babcock «. Terry, 97 482. 197. But a town has no power thus to indem- nify a field-driver. Vincent n. Nantucket, (12 C.) 66 103. 198. A promise not to pay the promisor's debt to a third person, without notice to the promisee, so as to enable him to secure his de- mand against such person by trusteeing the promisor, is lawful. Towne v. Grover, (9 P.) 26 306. 250 CONTRACT, III, (1). 199. Semble, that a clause in an executory agreement to submit any differences thereunder to arbitration, is void, as ousting the courts of jurisdiction. Whit i D.Middlesex Railroad, 135 216. [See, also, Arbitration, art. 1.] 200. A clause in an agreement between a cor- poration and its employee, that the latter should deposit a sum of money with the corporation, as security for the discharge of his duties, and that the president's decision, as to whether he was entitled to the return of any part thereof, should be conclusive, is void; and an action lies for the deposit. White ^.Middlesex Railroad, 135 216. 201. Qu., whether a contract to train a horse for a race for bets is illegal; at all events, the person, who has so trained him, has a lien upon him for his services and expenses. Harris ». Woodruff, 124 205. 202. It is not necessary, that the illegal pur- pose should appear upon the face of the con- tract, and if a lease in the ordinary form is made, oral testimony is admissible, to show that it was made upon an agreement to use the premises for an unlawful purpose, and thus defeat an action upon it. So where it was assigned, and the assignor guarantied the rent. Riley v. Jordan, 122 231. 203. A . contract, inconsistent with open, up- right, and fair dealing, is opposed to public policy. And where one is requested to recom- mend a builder to erect a building for the person so requesting, and the former recom- mends a builder, who secretly agrees to pay him a sum of money "for his trouble," and the builder is employed and paid, the promise is contrary to public policy, and an action will not lie upon it. Fuller v. Dame, (18 P.) 35 472; Rice v. Wood, 1 13 133; Holcomb v. Weaver, 136 265. 204. So as to a broker. Smith ». Townsend, 109 500. 205. A contract, by an heir expectant, to devise or convey his interest in expectancy, is void, on grounds of public policy, if made without his ancestor's consent; but if made with the latter's consent, it is valid. Boynton v. Hubbard, 7 112; Fitch v. Fitch, (8 P.) 25 480; Trull v. Eastman, (3 Met.) 44 121; Jenkins v. Stetson, (9 A.) 91 128. 206. All commercial intercourse between belligerents is unlawful, without the sovereign's license, and no action will lie upon a contract for trading with or transmitting property to a public enemy: but a lease of real property in an enemy's country is not per se unlawful. Kershaw v. Kelsey, 100 561; Snell v. D wight, 120 9; Dunham v. Presby, 120 285. 207. An agreement, that the fee of an officer, for keeping a live animal or perishable property attached, should not be included in the costs, but should be paid by the promisor to the plaintiff, is lawful. Clark «. Gamwell, 125 428. 208. An agreement by an administrator or guardian, to offer real property at auction, and to sell it to the promisee at a fixed price, with- out regard to the biddings, is unlawful; but an agreement to sell at a fixed price, if no higher oner is made, is lawful. Hunt v. Frost, (4 C.) 58 54. 209. An agreement not to bid, or to influence any one else to bid, for the labor of the inmates of a house of correction, is unlawful. Gibbs v. Smith, 115 592. 210. A general agreement, not to sell a par- ticular article, or not to carry on a particular business or occupation, is against public policy and void, as in restraint of trade; but an agree- ment not to do so within particular limits, if they are reasonable, is valid. Pierce ®. Fuller, 8 223; Stearns » Barrett, (1 P.) 18 443; Palmer v. Steb- bins, (3 P.) 20 188; Pierce v. Wood- ward, (6 P.) 23 206; Alger v. Thacher, (19 P ) 36 51; Angier v. Webber, (14A.) 96 211; Dean v. Emerson, 102 480; Morse T. D. M. Co. v. Morse, 103 73; Boutelle v. Smith, 116 111. LSee, also, Good-Will.] 211. Qu., whether an agreement not to carry on business for a particular time, not restricted to a particular locality, is valid Perkins v. Lyman, 9 522; Dean v. Emerson, 102 480. 212. The entire Commonwealth is not a reasonable restriction, as to the limits within which a particular trade is not to be earned on. Taylor® Blanchard, (13 A.) 95 370. 213. A bond to convey the obligor's chocolate mill, with his exclusive right and art or secret manner of making chocolate, is valid. Vickery D.Welch, (19 P.) 36 523. 214. An association of workmen, may law- fully agree not to teach others their trade, unless by consent of the society. Snow v. Wheeler, 113 .179. See, also, Comm. v. Hunt, (4 Met.) 45 111; Carew v. Rutherford, 106 1; Walker «. Cronin, 107 555. [As to the generai rule, where the parties are *n pari delicto, see Assumpsit, arts. 81, 84. For other rulings upon the question of the legality of particu- lar contracts, see Amusement; Assumpsit; Bahk; Betting, etc.; Bond; Champerty; Compounding a Crime ; Conflict of Laws ; Hawker and Ped- dler; Illuminating Fluid; Inspection; Insdb- ance; Intoxicating Liquors . Lord's Day; Lot- tery , Milk ; Stock-jobbing ; Usury.1 215. Where part of a single and indivisible promise, or of a single and indivisible con- sideration, is illegal, the entire contract is void. Perkins t>. Cnmmings, (2 G.) 68 258; Brigham e. Potter, (14 G.) 80 522; Baker «. Collins, (9 A.) 91 253; Warren v. Chapman, 105 87; Woodruff «. Wentworth, 133 309. 216. But where there are two promises or two considerations, one legal and one illegal, if the damages occasioned by, or proceeding from the legal promise or consideration, can De clearly separated from the remainder, tne promisee may recover those damages. Robbins v. Potter, (11 A.) 93 588; Dean v. Emerson, 102 480. [See, also, ante, art. 149. ] CONTKACT, III, (2); IV, (1). 251 (2.) Otber matters. [As to contracts void for duress, see Dukesb. As to contracts with jnatics or .nfants, see Guardian and Ward; Infant Lunatic. As contracts void for fraud, see Cheat , Conspiracy , Fraud; Sa£e.] 217. As to the general powers of a court of law to relieve against oppressive contracts, by- reducing the damages, see Cutler v. How, 8 257; Baxter t>. Wales, 12 365. 218. As to an unconscionable bargain with an heir apparent, see ' Jenkins t>. Stetson, (9 A.) 91 128. 219. For rulings upon the question, whether particular agreements were void for uncer- tainty, see Brown v. Bellows, (4 P.) 21 179; Heywood v. Perrin, (10 P.) 27 228; Miller v. Lord, (IIP.) 28 11; Phelps v. Sheldon, (13 P.) 30 50; Gilman v. Dwight, (13 G.) 79 356; Jenkins v. Stetson, (9 A.) 91 128; Crawford v. "Weston, 131 283; Raymonds. Rhodes, 135 337; Bergin v. Williams, 138 544. IV. Interpretation. LAs to what constitutes a condition, and the effect thereof, see Condition. As to the effect of particu- lar usages, customs, etc., see Bank, III, (4) ; Usage.'] CI.) General principles. 220. In interpreting a contract, the question at issue is the intention of the parties, to be gathered from the instrument itself, and the at- tendant circumstances; and for that purpose it is immaterial whether the paper presented is treated as a contract, or only a memorandum of a contract. Steamship Bulgarian Co. v. Merchants' Trans. Co., 135 421. See, also, How- land «. Leach, (11 P.) 28 151; Good- enough v. Thayer, 132 152. 221. The rule is the same, whether the con- tract is or is not under seal. Kane e. Hood, (13 P.) 30 281. 222. All the provisions of the instrument are to he considered; and if the language is doubt- ful, it will be construed most strongly against the person using it. Manly v. United M. & P. Ins. Co. 9 85; Atwood v. Cobb, (16 P.) 33 227; Barney v. Newcomb, (9 C.) 63 46. 223. Where the meaning is obscure, by erasures and interlineations, see Warren w.Merrifield, (8 Met.) 49 93. 224. Where a contingency is unprovided for, or where the intent is obscurely expressed, the acts and conduct of the parties, after the con- tract is made, are competent to show the intent. Cambridge «. Lexington, (17 P.) 34 222; Howard v Pessenden, (14 A.) 96 124; Morris v. French, 106 326. 225. In general, where no time is fixed, the promise must be fulfilled within a reasonable time; but a promise to pay a debt, is a promise to pay it when it is due, or forthwith, if it is already due. Carter v. Carter, (14 P.) 31 424; Fur- nas e. Durgin, 119 500. 226. Where there is a discrepancy between the written and printed clauses of a contract, the forme, prevail; and in a building contract, in case of a discrepancy between the specifica- tions and the plan, the former prevail. Smith ii. Flanders, 129 322. 227. Where two or more parties to a contract together undertake to do any act, and the con- tract contains nothing to show that the under- taking is several, or joint and several, it will be construed to be joint only. Bartlett v. Robbins, (5 Met.) 46 184; Pierce v. Harrington, (1 G.) 67 595; New Haven, etc., Co. «. Hayden, 119 361. 228. But an agreement, whereby each un- dertakes for his proportion, is several, not joint. Hall v. Thayer, (12 Met.) 53 130; Springfield e. Harris, 107 532. 229. Where the legal interest in a covenant and in the causeof action is j int, the covenant is joint, although by its terms several, or joint and several. Capen v. Barrows, (1 G.) 67 376. 230. Where A bids off goods at auction, un- der an agreement with B that the purchase shall be on joint account, evidence of the agree- ment is competent, without proving the terms of sale; and if A had also a partner, he is jointly interested in A's share of the purchase. Scott v. McKinney, 98 344. 231. If B fails to pay his portion of the pur- chase jnoney, within the time fixed by the terms of sale, but pays it afterwards, he is jointly in- terested in a contract for a resale previously made by A. Scott v. McKinney, 98 344. 232. Where A, B, and C, execute a contract, reciting that A has loaned a ceitain sum to D, and thereupon agreeing jointly and severally to guaranty payment thereof, in an action by A against B and C, the contract will be construed as binding each party severally for one third of the sum. Colt «. Learned, 118 380. 233. Where two or more instruments are exe- cuted at the same time, and relate to the same subject, they must be read together, in order to ascertain the contract between the parties. King v. King, 7 496; ( ary ». Raw- son, 8 159; Makepeace v. Harvard Coll., (10 P.) 27 298; Perry «. Holden, (22 P.) 39 269; Hunt v. Frost, (4 C.) 58 54; Cloyes v. Sweetser, (4 C.) 58 403; Porter v. Sullivan, (7 G.) 73 441; Smith «. Boston & M. R. R., (6 A.) 88 262; Collins 1). Delaporte, 115 159. See, also, post, art. 278. 234. And the rule is the same, although they are of a different character, as a note, a receipt, and a bond. Hunt v. Livermore, (5 P.) 22 395. 235. But in declaring, it is unnecessary to set forth the independent agreement. Sexton .o. Wood, (17 P.) 34 110. 236. A memorandum, made before execution, at the foot of a note or other contract, and vary- ing the terms thereof, is part of the contract; 252 CONTRACT, IV, (1), (2), (3). and oral testimony is inadmissible, to show that one of the parties did not assent thereto. Jones® Fales, 4 245; Springfield Bk. v Merrick, 14 323; Hey wood 0. Per- rin, (10 P ) 27 228; Makepeace v. Har- vard Coll , (10 P.) 27 298; Wheelock v Freeman, (13 P.) 30 165; Cutler v. Ashland, 121 588. 237 Aliter, if it was made, after execution, by some or all of the parties. Whitaker v. Salisbury, (15 P.) 32 534 238. So where the payee of a note, as part of the original transaction, indorses thereon a promise not to compel payment, but to receive the amount when convenient for the maker, he cannot maintain an action upon the note. Barnard v. Cushing, (4 Met.) 45 . 230. 239. But where a bank, after a note has be- come due, indorses upon the wrapper ' ' re- newed for three months," and receives the in- terest, this is not a renewal. Central Bk. ». Willard, (17 P.) 34 150. 240. Where words have acquired an exact and technical meaning, in any trade or busi- ness, and are used in a contract relating to such trade or business, prima facie they are to be construed in the meaning or sense which they have acquired in that business; but if there is any question thereupon, it is for the jury. Houghton 0. "Watertown Ins. Co., 131 300. See, also, Lowry 0. Bussell, (8 P.) 25 360; Sawtelle v. Drew, 122 228. 241 And any person, or any company, for" eign or domestic, engaging in any business, must be presumed to be acquainted with the rules and usages of such business, and conver- sant with the language employed in it, whether strictly technical or not. Daniels Hudson R. Ins. Co., (12 C.) 66 416; Whitmarsh 0. Conway Ins. Co., (16 G.) 82 359; Houghton® Watertown Ins. Co., 131 300. |See, also, Usage.) (2.) Liquidated damages and penalty. 242. The tendency and preference of the law is to regard a sum, stipulated to be payable if a contract is not fulfilled, as a penalty, not as liquidated damages. Lawrence 0. Parker, 1 191; Shute 0. Taylor, (5 Met.) 46 61; Wallis «. Car- penter, (13 A.) 95 19; Cushing v. Drew, 97 445. 243. But the question is always one of intent; and although it is to be decided by the writing only, yet the subject matter and consideration, the situation of the parties, local usages, etc., may be inquired into, to assist in the interpreta- tion of the writing. Perkins «. Lyman, 1 1 76; Hodges v. King, (7 Met.) 48 583. 244 As a rule, where the sum specified is described in the conjract as a "penalty" or a "penal sum," it will be regarded as a penalty only Perkins v Lyman, 11 76; Stearns v. Barrett, (IP) 18 443; Brown 0. Bel- lows, (4 P.) 21 179; Higgicson s.Weld, (14 G.) 80 165; Henry 0. Davis, 123 345. See, however, Pierce «. Fuller 8 223. 245. But the description of the sum specified as " liquidated damages," or words of the same import, or even words purporting that the parties have specially agreed that the sum shall be liquidated damages, will not weigh, where such a result would be inequitable. Heard 0. Bowers, (23 P.) 40 455. Shute 0. Taylor, (5 Met.) 46 61; Fisks' Gray, (11 A.) 93 132; Wallis v. Car' penter, (13 A.) 95 19. 246. Where a note for a certain sum is given, to be void if certain conditions are fulfilled, the sum will be treated as a penalty. Merrill v. Merrill, 15 488; Kelloees Curtis, (9 P.) 26 534. 247. The sum, specified in a contract as the value of a chattel, is not conclusive in an ac- tion for failure to deliver it; but is proper to be considered by the jury. Negus 0. Simpson, 99 388 248. Where the sum fixed is regarded as liqui- dated damages, the jury are confined to that sum; but this does prevent the party from re- covering also for other breaches of the contract, to which the stipulation does not apply; or for specific sums agreed to be paid, in addition to the liquidated damages. Leland 0. Stone, IO 459; Fisher s. Barrett, (4 C.) 58 381; Negus v. Simp- son, 99 388. 249. A sum stipulated in a contract to he paid in case of default, is to be deemed liquidated damages, where it is impossible or very difficult to ascertain accurately the actual damages. Curtis 0. Brewer, (17 P.) 34 513; Folsom 0. McDonough, (6 C.) 60 208; Chase 0. Allen, (13 G.) 79 42; Lyndes. Thompson, (2 A.) 84 456; Hall v. Crow- ley, (5 A.) 87 304; Cushing v. Drew, 97 445; Leary0. Laflin, 101 334. 250. Where the sum stipulated for appears to be the actual damages, or nearly so, it will be regarded as liquidated damages. White 0. Dingley, 4 433; Parker v. Thompson, (3 P.) 20 429; Hodges 1. King, (7 Met.) 48 583. [As to the effect upon the party's right to an in- junction in equity against the violation of a contract, of the insertion of a sum as a penalty or liquidated damages, see Injunction, I; II, (3).] (3.) Entirety or divisibility. [As to whether an undertaking is joint or several, see, ante, IV, (I). As to a charter party, and where freight for part only of a voyage can be recovered, see Shipping, III, (1); III, (2). See, also, generally, upon this question. Apportionment , Trustee Pbockss; and post, VI, (1).] 251. Where one contracts to do different things at different times, a separate action lies upon every default; for, although the agree- ment is entire, the performance is several and the contract divisible. Badger 0. Titcomb, (15 P.) 32 409. See, also, Knight 0. N. E. Worsted Co., (2 C.) 56 276. 252. The sale of a specific number of pack- ages, at so much a pound or a package, is an entire contract, and the purchaser cannot rescind CONTEACT, IV, (3), (4). 253 it as to some packages, and affirm it as to the residue. Morse v. Brackett, 98 205; Mansfield v. Trigg, 113 350. 253. So of a quantity of grain, at so much a bushel. Clark v. Baker, (5 Met.) 46 452. 254. But where distinct articles are bought at the same time for different prices, although they are of the same general description, the contract is not entire; and if any article does not correspond to a warranty, the contract may be rescinded as to that article separately. Young & Conant M. Co. v. Wakefield, 121 91. 255. Generally, at a sale by auction; of real or personal property, the sale of each lot, par- cel, or article, is a separate contract, especially if a separate memorandum is taken as to each. Wells v. Day, 124 38. 256. Where some goods, being on hand, were, by the terms of the contract, to be delivered at once, and others when manufactured, the con- tract is divisible. Star Glass Co. u. Morey, 108 570. 257. But, semble, that where all are to be manufactured, the contract is indivisible. Weed v. Clogston, 98 147. 258. Where two executory contracts are made on different days, for the sale of goods, payable on delivery, and the delivery under the second contract is to begin when the full quantity re : quired by the first is shipped, the purchaser cannot, after refusing to pay for goods delivered under the first contract, unless the seller will give security for the entire fulfilment, maintain an action for non-delivery under the same. Stephenson v. Cady, 117 6. 259. Where an agreement is made for the sale of timber, to be delivered at a fixed time and place, and paid for six months after deliv- ery, and, by a subsequent agreement, the time for delivering a portion is extended, and that portion is afterwards delivered, the original contract is severed, and a refusal by the pur- chaser to pay for the portion delivered, does not authorize the seller to rescind, or refuse to de- liver the residue. Winchester v. Newton, (2 A.) 84 492. 260. Where one consideration is paid for sev- eral articles sold in one lot, the contract is en- tire; and if the purchaser pays the consideration, and part_ only are delivered, he cannot retain those delivered, and recover back a proportion- ate part of the purchase money; but he must sue for damages. Miner «. Bradley, (22 P.) 39 457. 261. If a purchaser accepts part of an entire lot of goods contracted to be sold, and promises to pay for them, the seller may recover for that part, although he refuses to deliver the remain- der; and semble, that he may recover without an express contract, deducting the damages of the purchaser. Bowker v. Hoyt, (18 P.) 35 555. 262. It is the duty of the seller of a cargo of gram in bulk, part of which is damaged, to separate the good from the bad, and offer the good to the purchaser, although the latter re- fuses to take any. Clark v. Baker, (11 Met.) 52 186. 263. Where one agrees to work for another for a year, at a price payable monthly, he may, at any time during the year, demand his wages for the months elapsed. White v. Atkins, (8 C.) 62 367. 264. One cannot be charged as trustee of an- other, to whom he has agreed to pay a quarterly salary, where the process is served before the quarter has expired; alitef, if the stipulated payment is to be made on a certain day in each year, and at the same rate for a portion of a year. Hadley v. Peabody, (13 G.) 79 200, Sabin v. Cooper, (15 G.) 81 532. 265. Where a creditor agrees to receive pay- ment of his debt by instalments, and that, if he shall sue, the debtor shall be discharged, a failure to pay one instalment entitles him to recover the whole debt, although other instal- ments are not yet due. Upham i). Smith, 7 265; Keed e. Stoddard, 100 425. 266. Where A agreed to build a vessel for B for a certain sum, payable in two instalments, and, when the first instalment was due, B re- fused to pay it without security for the comple- tion, whereupon A gave him a bond, condi- tioned to finish and deliver the vessel, etc , the subsequent failure to deliver the vessel accord- ing to the bond is a breach thereof, although B has not paid the first instalment. Crowell «. Brown, (9 G.) 75 274. [See, also, post, IV, (i); VI, (1); and Roosevelt S.Doherty, 129 301 ; Agency, art. 173. J (4.) Dependent and Independent stipu- lations. [See, also, ante, IV, (3). As to the effect of a condi- tion precedent, see Condition, III.] 267. Where, by the terms of a contract, the stipulations of the parties are dependent, he who sues must show performance, or readiness or offer to perform, on his part, on the per- formance by the other. Johnson ». Reed, 9 78; Newcomb v. Brackett, 16 161; Dana v. King, (2 P.) 19 155; Howland ». Leach, (11 P.) 28 151. 268. Where each party is to do a certain act on the same day, and the act of one is the con- sideration of the act of the other, the stipula- tions are dependent. Dana «. King, (2 P.) 19 155; How- land ii. Leach, (11 P.) 28 151. 269. So where no time is fixed for the per- formance of either act, but one act is the con- sideration of the other. Seymour e. Bennet, 14 266; Couch «. Ingersoll, (2 P.) 19 292; Hunt v. Livermore, (5 P.) 22 395. 270. Where a contract requires one party to do an act which must, in the order of events, be done before the other party is required to fulfil his part, the performance by the former is a condition precedent to his maintaining an action for nonperformance asainst the latter. Johnson v. Reed, 9 78; Mill Dam Foundery«.Hovey,(21P) 38 417; Cad- well v. Blake, (6 G.) 72 402; Gates v. Ryan, 115 596. 254 CONTEACT, IV, (4), (5). 271 The question, whether the stipulations are dependent or independent, depends upon the intention of the parties, the nature of the acts to he performed, and the order of time in which they are to be performed. Hopkins v. Young, 11 302; Howland 11. Leach, (11 P.) 28 151; Knight v. N. E. Worsted Co., (2 C.) 56 271. 272. Where the stipulations are dependent, if both parties remain inactive, there is no breach by either. If either would charge the other, he must show readiness to perform on his part, and express or implied notice thereof, and re- quest of performance, to the other. Gardiner v. Corson, 15 500; Kane v. Hood, (13 P.) 30 281 ; Tinney v. Ashley, (15 P.) 32 546; Parker v. Perkins, (8 C.) 62 318; Cook 0. Doggett, (2 A.) 84 439; Smith v. Boston & M. R. R., (6 A.) 88 262; Hapgood ».Shaw, 105 276. 273. Actual tender or even complete readiness is not necessary, if the party seeking perform- ance is ready and able to perform, provided the other party will perform. Carpenter 0. Holcomb, 105 280; West «. Piatt, 127 367. [See, also, post, V, (I).] 274. Some of the stipulations in an entire contract may be dependent, and others inde- pendent, according to their nature, and the order and time of performance; and where such is the case, the party failing to perform may recover upon the independent stipulations, and fail on those which are dependent. Tileston/0. Newell, 13 406; Garidner v. Corson,' 15 500; Kane 0. Hood, (13 P.) 30 281; Lord v. Belknap, (1 C.) 55 279; Knight v. New England W. Co., (3C.) 56 271. [See these cases for rulings upon particular stipu- lations, contained in the different contracts in ques- tion in the several cases.] 275. Where a dependent stipulation permits the party to elect between performance in the mode pointed out, and another mode, if he could avail himself of the privilege, he must make his election within a reasonable time. Phillips 0. Soule, (9 G.) 75 233. ' 76. Where A conveys to B one of several houses then building, and agrees that B, in payment therefor, shall furnish marble work for all the houses at prices named, and that A shall have B's house completed at a certain time, A's performance is not a condition prece- dent to B's performance. Leighton 0. Meserve, 117 50. 277 Under a contract to perform the duties of agent of a corporation, at a fixed quarterly salary, one of which duties is to render monthly accounts, the failure to render the accounts will not defeat the agent's right to recover his salary. Sampson v. Somerset I. Works, (6 G.) 72 120. 278. Where two or more instruments are made at the same time, each containing a con- tract of one of the parties respecting the same subject, they will be construed together, al- though neither refers to the other; and if the intent appears to be that the promises are de- pendent on each other, they will be so con- strued. Smith 0. Boston & M. R. R., (6 A.) 88 262; Collins v. Delaporte, 115 159 See, also, ante, art. 236; Loring v Whitte more, (13 G.) 79 228. [For various rulings, where a promissory note was given upon a s.parate agreement, see Bill of Ex. CHANGE AND PKOMISSORY NOTE, V, (5).} 279. A contract for the board, etc., of a pau- per for a year, at a stipulated price, is depend- ent, and the party cannot recover the full amount, if the pauper dies before the end of the year. Willington 0. West Boylston, (4 P.) 21 101. 280. A contract between A and B of the one part, and C and D of the other, whereby the parties of the one part make several mutual stipulations to the parties of the other part, and D makes an agreement to pay A a certain sum, in settlement of a former account, is independ- ent as to the separate stipulation between D and A; and the nonperformance of that stipula- tion by D, does not prevent C, after D's death, from recovering against A and B for breach of the other stipulations. Crawford 0. Weston, 131 283. C5.) Executory contract of sale, etc., when title passes. [See, also, Personal Property ; Sale, II. As to a contract for the sale of real property, see Vendor and Vendee.1 281. In general, a contract for a future sale of a chattel, remaining in the possession of the vendor, does not pass the title, until full per- formance of the condition, or actual or sym- bolical transfer of possession to t^e vendee. Chapman 0. Searle, (3 P.) 20 38; Hodges v. Harris, (6 P.) 23 360; Shaw 0. Nudd, (8 P.) 25 9; Bennett 0. Piatt, 9 P.) 26 558; Pratt 0. Parkman, (24 P.) 41 42; Moody 0. Wright, (13 Met.) 54 17; Wilson v. Russell, 136 211. 282. And where, by a subsequent contract, it is agreed, that, befcre performance of the con- dition, the property shall go into the possession ( f the vendee for a particular purpose, the sale is not complete and the title is not changed, until such performance. Reed 0. Upton, (10 P.) 27 522. 283. Where goods, belonging jointly to A and B, are in the possession of B, and an agree- ment is made between the parties, beginning "A bought of B " the property, etc., for a price stated, part of which is then paid; and pro- viding for the payment of storage by A, and interest, tin the property is fully paid for, and that the balance shall not be paid till the property is sold; this is a present sale, not an executory contract; and A can replevy the goods from B's attaching creditor. Stone 0. Hodges, (14 P.) 31 81. 284. And a writing, whereby A "agrees to sell " to B chattels then in B's possession, for a sum payable at a future time, and B "agrees to purchase " them, and pay at the specified time, " or return them in good condition," etc., is an agreement for a present sale. Martin 0. Adams, 104 262. 285. Where goods are delivered by A to B under a written agreement, reciting that B has CONTEACT, IV, (5), (6). 255 "hired" the goods from A, and will pay him certain sums "as rent," etc., and upon full per- formance, the title shall vest in B; and B makes default, whereupon A sues him for "rent," and, after B's default in the action takes posses- sion of the goods, and then enters juugment against B, and collects a small sum upon execu- tion; this is an election by A to treat the trans- action as a sale, before reclaiming the goods, and B may maintain trover for them against A. Bailey «. Hervey, 135 172. 286. "Where a chattel is sold and delivered, under a contract that it remains the property of the seller until paid for, the seller cannot maintain trover against an attaching creditor of the purchaser, who seizes it before the day of payment. Fairbank «. Phelps, (22 P.) 39 535; Newhall v. Kingsbury, 131 445. 287. A writing, whereby A "sells" and B "buys" the goods in A's shop, the price to be ascertained by an inventory and the invoices of the goods, and "delivery made and price paid, as soon as the quantities are verified," passes no title, until payment and delivery. Sherwin v. Mudge, 127 547. 288. A, having leased a mill and machinery to B, agreed with him, before the expiration of the term, that A should have, at the expiration of the term, all the machinery, etc., therein, part of which belonged to B. This is not an executory agreement, but a present sale, and A cannot recover upon a destruction of the prop- erty by fire. Thayer v. Lapham, (13 A.) 95 26. 289. Where B contracts to sell chattels in his possession to A, for a price payable in instal- ments, with liberty to A to remove any of the chattels, upon paying a sum named, the chat- tels to remain the property of B till paid for; and, before any of them are taken, or any instalment is due, they are destroyed by fire, no title has passed to A, and he may recover back a cash payment made on executing the con- tract. Weed v. Boston & S. Ice Co., (12 A.) 94 377. 290. A contract between A and B, whereby B purchases from A, at fixed prices, cheese to be manufactured by A, and certain cattle to be kept by A; and for payment B is to discharge a debt due him by A, and to pay the balance in cash; is executed from time to time as the arti- cles are delivered, and those not delivered re- main the property of A. Mason «. Thompson, (18 P.) 35 305. 291. A sale of fish, therafter to be caught, posses no title to the fish when caught. Low v. Pew, lOS 347. 292. To maintain an action, for breach of a contract to pay for goods purchased, where the seller has sent the goods to a third person, he must show either that the third person was the purchaser's agent, or that the latter, or some other person in behalf of the seller, delivered or offered to deliver the goods to the purchaser McKinney «. Wilson, 133 131. 293. Where a lessee puts furniture and fixtures into the demised premises, under an agreement with the lessor, that they shall be- come the latter's property, upon the expiration of the lease, a bill of sale by the lessor, during the lease, passes title to a third person upon the expiration of the lease. Thrall «. Hill, 110 328. 294. Under a contract between the lessees of a brick yard and another, whereby the latter was to make the bricks, and pay the former a certain sum per thousand as rent, and the former were to furnish materials, sell the bricks, etc., and profits and losses were to be divided; the bricks, when made, are the joint property of the parties. Macomber v. Parker, (13 P.) 30 175. (6.) Peculiar expressions. [See, also, post, IV, (7); V.] 295. Where no time of payment is specified in a contract for the sale of goods, the payment is to be made on demand. Warrens. Wheeler, (8 Met.) 49 97. 296. A promise to pay, when the promisor recovers his demands against a third person, is absolute, if he has no such demands, or does not use reasonable diligence to recover them. White e. Snell, (5 P.) 22 425. 297. A promise to pay "as convenient," im- ports an extension of credit, not that the sum is never payable. Black r>. Batchelder, 120 171. 298. A promise to pay, when the promisor shall be able, will sustain an action, on proof of his ability, but not otherwise. Canterbury U. Soc'y v. Winkley, (7 G-.) 73 460; Randidge *. Lyman, 124 361. 299. An agreement that a gate " is to be kept up, except by consent of parties," means that when taken down by consent of parties, it shall remain down. Fowle v. Bigelow, 10 379. 300. An agreement that a seaman shall "pro- ceed to sea, and perform his duty on board " a vessel, is broken if the seaman leaves the vessel in a foreign port. Bagley «. Francis, 14 453. 301. A contract, relating to the arrival of a ship at a port, within a given time, requires that she should come to anchor or be moored within that time. Gray i>. Gardner, 17 188. 302. A contract for a seaman's share in the proceeds of a fishing voyage, "at the end of the voyage," refers to the sale of the fish after arrival. Bradford v. Drew, (5 Met.) 46 188. ,03. An agreement for drawing stone, at a certain price "per load of two tons each," fixes the rate by the ton, without regard to the amount of each load, and cannot be varied by oral evidence. Huntley v. Woodward, (9 G.) 75 86. 304. "Legally be compelled to pay "includes compulsion by legal process in another state. Parker v. Thompson, (3 P.) 20 429. 305. A note, payable in work and stock, " with interest from date and on demand, he giving us twenty days' notice when to begin," is payable upon a demand made after twenty days' notice. Baker v. Mair. 12 121. 256 CONTRACT, IV 3 (6). 306. A contract with a town to support all the paupers, having a legal settlement in the town, includes the support, in the house of correction in Boston, of a person who has a legal settlement in the town. Wood «. Burlington, (1 Met.) 42 489. 307. An agreement to pay whatever one re- ceives from A, upon a certain demand, if he is chargeable therewith, requires payment of a sum received as a compromise, whether A or is not legally chargeable. Phoenix Bk. v. Bumstead, (18 P.) 35 77. 308. But an agreement between A and B, to abide the final determination of an action between A and C, does not include a compro- mise. Higginson v. Gray, 8 385. 309. A contract by A, appointing B his sole agent for three years, " for the sales of medi- cines manufactured by A, and known as A's medicines," includes a horse liniment, invented by A since the contract, and within the three years. Lewis v. Moore, (14 G.) 80 184. 310. An order upon a publisher for such a number of his new American map, as A might order, includes all the varieties of the new Amer- ican map, accepted by A, although of different titles, prices, coloring, and degrees of detail. Monk v. Beal, (2 A.) 84 585. 311. A promissory note for the payment "ten years after date," of $750 "with interest semi- annually, $50 of the principal to be paid an- nually until the whole is paid," requires the pay- ment of the entire unpaid balance of the prin cipal, at the end of the ten years. Ewer v. Myrick, (1 C.) 55 16. 312 And a simultaneous contract by the promisee, that if the note is not paid at the end of the ten years, he will surrender it, upon re- ceiving a deed of certain land, does not prevent him from recovering the instalments of princi- pal and interest, as they fall due. Ewer v. Myrick, (1 C.) 55 16. 313. An agreement, by a corporation, to pur- chase all the iron ore it may want " for the use of the furnace " for three years, binds it to pay for ore delivered to and accepted by its agent, although not used by it. Chapman «. Briggs I. Co., (6 G.) 72 330. 314. Where an agreement is made between A and B, for the employment of B for a year, with a provision that A shall own all inventions made by B "while in his employ," and B con- tintinues more than a year, the agreement does not apply to an invention made after the year. Hopedale M. Co. v. Entwistle, 133 443. 315 A contract to be performed when the promisor sells and receives pay for certain chat- tels, is satisfied by the sale and receipt of the pay by a firm, of which he afterwards became a member. Hanson v. Dodge. 134 273. 316. Where a contract provides for the de- termination of a question by the superintendent of a railroad company, and afterward, and be- fore the question arises, the office of superin- tendent is abolished by the company, and its duties assigned to the president, the latter Is to make the determination. Conn. R. R. R. v. Williston, (16 G\ 82 64. ' l u,) 317. A promise to reimburse one upon satis- factory vouchers for sums expended, does not cover bills outstanding and unpaid. Burnham «. Roberts, 103 379. 318. An agreement by a dealer to pay a speci- fied sum, "payable in trade," applies to such articles as he deals in, and cannot be otherwise ^applied by oral evidence. Dudley v. Vose, 114 34. 319. An agreement to pay a book publisher, for an advertisement in his book, a certain sum " for each and everjr copy sold and delivered to agents and others," includes every copy sent to an agent for delivery to subscribers, hut not copies sold to newspaper proprietors, in pay- ment of the publisher's advertising bills. Burr v. Crompton, 116 493. 320. In an agreement to pay an agent a cer- tain sum for selling a farm, if it is sold "within one year from this date, or at any time thereafter before I have given you 30 days notice," etc., the clause as to withdrawal applies only after the expiration of the year. Chapin v. Bridges, 116 105. 321. Where A sells a farm to B, and B after- wards agrees to quit the premises at a certain time, and to leave thereon all tools, etc., re- ceived with the place, the agreement applies only to tools, etc. , received with the place from A, not to those acquired by subsequent dealings with A. Goodnow v. Davenport, 115 568. 322. An agreement to put a gutter "in proper shape," requires only such repairs, etc., as will put it in as good condition as when it was new; not the construction of a gutter upon a differ- ent plan, although the original plan was defec- tive. Dwight v. Ludlow Man. Co., 128 280. 323. So an agreement to do certain specified repairs and improvements in greenhouses, " and to put the houses generally in good working order," does not require the erection of guards upon another building, on the same premises, to protect them from snow and ice falling from its roof. Vass o. Wales, 129 38. 324. An agreement by which A agrees to build a house for B at a fixed price, payable in instalments, and that "the lumber dealer is to have reserved $600 for bills," does not authorize B to deduct any of the lumber dealer's bill from the instalments payable as the work progresses, but only from the final balance Ford v. Burchard, 130 424. 325. An agreement between a surviving part- ner, and the executor of the deceased partner, by which the latter binds himself to save the former harmless from the partnership debts, and release him from all he owes to the part- nership, does not include his indorsement of a promissory note, held by the executor, it not appearing that the note was a partnership trans action. Lathrop v. Page, 129 19. CONTEACT, IV, (6). 257 326. An agreement relating to the use of water during "the working hours" of a mill, refers to the working hours at the time when the agreement was made; and if they are ex- tended, so as to include the night time, does not apply to the night. Binney «. Phoenix Cotton M. Co., 128 496. 337. A contract to build a sea wall did not define the exact location, but it was built by the contractor on the lines pointed out by his employer, and proved to be defective for want of a pile foundation. The contractor was al- lowed to recover. Burke v. Dunbar 128 499. 328. A contract of employment, "during the term of not exceeding three years from date," may be terminated at any time, upon reasonable notice. Harper v. Hassard, 113 187. 329. Where A had a contract for the manu- facture of rifles for a foreign government, which he assigned to B, who agreed to divide with C "the net profits" accruing from the manufacture and sale of the rifles, B cannot deduct the personal expenses of A, incurred be- fore the assignment, for travelling and aid in procuring the contract, or collecting men, and procuring a shop, machinery, etc., for the work. Stimpson v. Green, (13 A.) 95 326. 330. But where the agreement between B and C provided, that whereas the foreign gov- ernment had advanced $30,000, without inter- est, which had been expended for machinery, etc., no interest should be charged on the amount expended for that purpose, this clause applies to the amount actually expended, al- though it exceeded $30,000. Stimpson «. Green, (13 A.) 95 326. 331. An agreement with a city to furnish gas, " as cheap as is furnished in Boston," etc., refers to the price when it is furnished, not when the agreement is made. Worcester Gas L. Co. ». Worcester, 110 353. 332. A contract by which A is to take charge of B's brick-yard, and to have the brick made " in the best manner," etc., does not require the brick to be made in the best manner, etc., with- out regard to the materials and machinery fur- nished by B. Talbot v. Heath, 126 139; S. P., Morton «. Fairbanks, (11 P.) 28 368. 333. A contract with a mortgagee, that if he shall "advertise and sell" the property for a breach, the promisor will purchase the prop- erty, and pay the amount due, is satisfied only by advertisement and sale, as specified in the power contained in the mortgage. Stickney v. Evans, 127 202. 334. A contract, whereby A agrees to pay B interest upon a sum, which hasbeen fixed by B and a railroad company, as damages for taking his land, " if said railroad shall be kept in operation," is not satisfied by the company claiming the right to execute its franchise, and occasionally running a freight train, where the circumstances show that the object of the promisor was to secure the advantages of a con- VOL. 1—33 tinued operation of the road, by passenger and freight trains. Jepherson v. Hunt, (2 A.) 84 417. 335. Where one agrees to pay another a cer- tain sum, when he " shall receive his pay" for certain goods sold by him to A, he is liable if A has paid for part, and returned the rest as not equal to sample, and the promisor has sold the goods returned to others, although for a smaller price. Craemer «. Wood, 102 441. 336. AUter, upon an agreement of the same . general character, where part remains unsold. Brown v. Dutton, (9 C.) 63 209. 837. Where a subscription is made ly several for a certain purpose, payable "when the sum required is subscribed hereto," and a portion only of the sum required is subscribed upcn the paper, but the remainder is paid by a particular person, the subscribers are liable. Springfield S.R'wayu. Sleeper, 121 29. 338. A building contract, which provides that the builder shall complete the work within a specified time, but if it is not then completed, he shall pay or allow for the additional time, at a specified rate, by implication allows him a reasonable additional time, on his paying or allowing the specified rate. Folsom v. McDonough, (6 C.) 60 208. 339. A subscription for a building, payable . when the walls are completed, is payable when the walls are ready to receive the roof, although they are not covered •with mastic according to the design. Worcester Med. Inst'n v. Harding, (11 C.) 65 285. 340. Where A, owning a building, abutting partly on B's land and partly on C's, makes separate contracts with each, conveying to each a portion of the party wall, with permission to build it as high as required for a building to be erected by them jointly, and each contract con- tains an undertaking with A so to provide for carrying off the water from A's building, as to prevent leakage, B's undertaking applies only to the part of A's roof which abuts upon B's part of the building; and •he is not liable for leakage occasioned by a defect in that part of the roof which abuts upon C's part. Mason v. Field, 119 585. 341. And B's undertaking to make good A's roof, after removing the same where his build- ing rises above A's wall, so as to prevent leak- age, etc., authorizes him to build a new roof upon part of A's building, if that is the best method of carrying off the water, or as good as any other, as to which the jury must judge. Mason v. Field, 119 585. 342. Where a contract requires the delivery of a certain quantity, or number of articles, "more or less," or " about" a specified num- ber or quantity, if there is anything else in the contract which fixes the quantity or number intended, that will control; otherwise it is for the jury to say what quantity or number suf- fiCGS. Pembroke Iron Co. v. Parsons, (5 G.) 71 589; Cabot v. Winsor, (1 A.) 83 546; Whittemore ®. Fuller, (10 A.) 92 361; Clapp v. Thayer, 112 296. See, also, Vendor and Vendee.] 258 CONTRACT, IV, (7). CT.) Particular kinds of contracts. [For rulings relating to contracts for the purchase and sale of real property, see Boundary Line; Vendor and Vendee. For ru lings relating to con- tracts of guaranty, see Guaranty.] 343. A covenant to indemnify A against all damages and costs, which he may incur in consequence of indorsing any notes for B, does not extend to A's indorsement of B's note given for A's own debt. Traskfl. Mills, (7 C.) 61 552. 344. For rulings upon the peculiar phrase- ology of other contracts of indemnity, see Bond, III, (1); and the following cases: Bird v. Washburn, (10 P.) 27 223; Hall v. Thayer, (12 Met.) 53 130; Clarke v. Moies, (11 G.) 77 133; Coombs v. Jenkins, (16 G.) 82 153; Jones ». Wol- co.t, (2 A.) 84 247; Nichols v. Prince, (8 A.) 90 404; Stone r. Bancroft, 108 93, "Whiting v. Aldrich, 117 582, Bel- chers. Loveland, 119 539. 345. A contract with a city to build a drain, in a thorough, skilful, and workmanlike manner, satisfactory to a committee of the board of aldermen; to execute the work under the gene- ral superintendence and direction of the com- mittee; and to finish the work with as much rapidity as can reasonably and beneficially be done; means that the superintendence, etc., ex- tends to the time, as well as the manner of doing the work, as to which the committee, acting fairly and reasonably, are the exclusive judges. Chapman v. Lowell; (4 C.) 58 378. 346. For rulings upon the peculiar phrase- ology of other buildi g contracts, see ante, art 338; and the following cases: Bicker v. Cutter, (8 6.) 74 248; Davis «. Pope, (12 G.) 78 193; Lowell ». Allen, (14 A.) 96 130; Westfield «. Mayo, 122 100; Boynton «. Lynn Gas L. Co., 124 197; Stuart v. Cambridge, 125 102; Smith v. Emerson, 126 169. 347. For rulings upon other contracts, pro- viding that the sufficiency of work done or articles furnished, under the contract, shall be determined by a party, or by a third person, see Arbitration, arts. 22, 66, 101; and the following cases : McCarren v. McNulty, (7 G.) 73 139; Atkins v. Barnstable Co., 97 428; Aiken v Hyde, 99 183; Walker v. Fitchburg, 102 407; Wood «.Buxton, 108 102; Brown v. Foster, 113 136; Whelton v. Tompson, 121 346. 348. Where A, and other creditors of B, con- tracted not to sue him within two years, and, on the same day, B conveyed to A a moiety of a machine, which was to remain in B's posses- sion, and the profits of which moiety were to go to B's creditors pro rata, A may maintain assumpsit against B for half the profits before expiration of the two years. Brigham v. Eveleth, 9 538. 349. For rulings upon the peculiar phrase- ology of other contracts between creditors and debtors, or by creditors inter sese, relating to forbearance, security, or collection of debts, see Andrews a. Etheridge, 9 383; Knower v. Emerson, (9 P.) 26 422; Gifford «. Allen, (3 Met.) 44 255. [See, also, Accord and Satise action: Assign- ment; Bankruptcy; Bill of Exchange and Promissory Note; Composition; Insolvent.] 350. A contract not to be interested in a voy- age to a certain place for a certain time, » broken, if the promisor owns and nts a vessel for such a voyage, although, belore her depar- ture, he divests himself of his interest; and the fact that the promisee afterwards purchased part of the vessel does not bar an action, although it may reduce the damages. Perkins v. Lyman, 9 522. 351. For rulings upon the peculiar purase- ology of other contracts for the sale of a good- will, or otherwise in restraint of trade, see ante, arts. 210 to 212, and the following cases: Bassett ■». Percival, (5 A.) 87 345: Dean v. Emerson, 102 480; Buffum «. Breed, 116 582; Munsey v. Butter- field, 133 492. LSee, also, Good-Will.] 352. Where A proposed to a corporation to take charge, as superintendent, of its mines in the interior of California, at a certain salary and "expense of passage to the mines," and the corporation voted to employ him and "to pay his expenses out to California," this means that his expenses are to be paid to the mines. Tufts v. Plymouth Gold M. Co., (14 A.) 96 407. 353. For rulings upon the peculiar phrase- ology of other contracts for services or employ- ment, see Master and Servant, and the fol- lowing cases: Pinch «.' Anthony, (10 A.) 92 470; Duff v. Maguire, 107 87; Nashua and L. R. R. p. Paige, 135 145. 354. An oral agreement to sell and deliver a flour mill, etc., and not to engage in the same business, is performed by delivery of a suitable conveyance, without a written agreement not to engage in the business. Worthy v. Jones, (11 G.) 77 168. 355. An agreement by a city to widen a street is not broken, by allowing part of a building to project over the line of the lower story. Boston «, Simmons, (9 C.) 63 373. 356. A contract to pay a certain sum for furnishing men to fill the naval quota of a ward in a city, " if said men are duly credited to said ward, and go to make part of the quota of said ward," is defeated by proof that the quota was full, when they were furnished. Shattuck v. Eastman, (12 A.) 94 369. 357. A contract to use in a building "the best French plate double thick glass similar to that used " in another building, requires the use of glass of a fair sample cf the quality speci- fied, not that each plate shall be the best possible specimen of its kind. Lowell Meeting House «. Hilton, (11 G-) 77 407. 358. An agreement by three, to "convey" land with warranty, is not satisfied by_ a war- ranty deed, given by one, and a quit claim d;ed by the others. Lawrence v. Parker, 1 191. CONTRACT, IV, (7). 259 359. A contract, dependent upon a sale of land, takes effect, where the owner offers it at auction and bids it in himself. Needham v. Sanger, (17 P.) 34 500. 360. A contract to pay one a certain propor- tion of the net profits of a company's business, with a provision that it " shall be made up and paid annually, to commence when the books of the treasurer shall be made up to show the an- nual state of the company," does not entitle the promisee to recover upon a statement made, during the ensuing calendar year, but not after the expiration of twelve months, by the presi- dent and bne of the treasurer's clerks. Alleott v. Boston Steam F. M. Co., (9 C.) 63 376. 361. For rulings upon the peculiar phraseol- ogy of other contracts to divide profits or earn- ings, or to pay a sum calculated upon the amount of profits or earnings, see Goodell v. Smith, (9 C.) 63 592; Field v. Woodmancy, (10 C.) 64 427; Pierce v. Bucklin, (7 A.) 89 261; "Wallace v. Beebe, (12 A.) 94 354; Fuller v. Miller, 105 103. 362. A contract, stating that A has purchased from B certain shares of stock, at a certain sum, " payable and deliverable at buyer's option in 60 days," requires A to accept and pay for the stock in 60 days from its date, unless he has exercised an election to call for it sooner. Nichols v. Bishop, 136 349. 363. Where the value of the shares of the capital stock of a corporation, consisting of 1,000 shares, depended upon the value of a mortgage held by it, and A bought from B eight shares at par, and agreed "to account" to B " for one half of the proceeds or avails" of the mortgage, this agreement imports an obligation to pay to B half of what the avails of the mortgage would be to an owner of eight shares, to wit, 4-1000 of the avails to the corpo- ration. Cushman v. Richards, lOO 232. 364. For rulings upon the peculiar phrase- ology of other contracts, relating to shares of stock in a corporation, see the following cases: Murdock v. Caldwell, (10 A.) 92 299; Boynton «. "Woodbury, 101 346; Price «. Minot, 107 49; Penniman «. Stan- ley, 122 310; Osborn «. Jernegan, 126 362. [For rulings upon the peculiar phraseology of articles of association of a joint stock association, see Joint Stock Association ; Conflict of Laws, III, (6).] 365. An exclusive license to manufacture under letters patent for a specified time, with an agreement to convey to the licensee at the end of that time, at his election, is void, if the letters patent are void. Harlow v. Putnam, 124 553. 366. For rulings upon the peculiar phrase- ology of other contracts, relating to patents or patented articles, see ante, arts. 90 to 93, and the following cases: "Wilder v. Adams, (16 G.) 82 478; Weed ■». Draper, 99 53; Taylor v. Col- lins, 102 248; "Weed v. Draper, 104 28; Rider v. Pease, 119 492. [See, also, Patent.] 367. Where A proposed to B, who held C'a promissory note, secured by a mortgage upon real property, to pay the interest due, and taxes upon the property to be paid by B, and B ac- cepted the proposition, and, instead of paying the taxes, allowed the property to be sold at tax sale, and purchased it himself, this contem- plates that the title to the property should re- main unimpaired, and B cannot recover. Home Savings Bank v. Mackintosh, 131 489. 368. For rulings upon the peculiar phrase- ology of other executary contracts relating to questions of title to real property, see Vendob and "Vendee, and the following cases: Bartlett v. Tarbcll, (12 A.) 94 123; Pease v. Brown, 104 291. 369. "Where, in a lease for years of a farm and stock, including a yoke of oxen and several cows, the lessee covenants ' ' to return said stock in quantity and quality to the lessor, or the value of the same in money, as the lessee may elect," and subsequently sells the oxen and two of the cows, aud substitutes others in their stead, he has no right, before the expiration of the lease, to sell the substituted oxen and cows. Billings «. Tucker, (6 G.) 72 368. 370. For rulings upon the peculiar phrase- ology of other provisions in a lease, relating to personal property passing with the land, or to be produced on the premises, see Smith v. Putnam, (3 P.) 20 221; Butterfield v. Baker, (5 P.) 22 522; M parte "Wait, (7 P.) 24 100; De "Wolf e. Brown, (15 P.) 32 462; Chamberlin v. Shaw, (18 P.) 35 278; "Whitcomb v. Tower, (12 Met.) 53 487; Munsell v.,* Carew, (2 C.) 56 50; Dascomb v. SarteHjv (I A.) 83 281. [For rulings upon other stipulations in a lease, see Landlord and Tenant, V; VI.] 371. A contract that A shall furnish, at a fixed price, to persons designated by B, books to sell, receiving their remittances, and placing the money received from them, above the price, to the credit of B, and at the close of their labors A shall receive the books returned by them uninjured, and credit them at cost price to B, and B will guaranty the price, is not a sale to B, but a contract of agency. Eldridge v. Benson, (7 C.) 61 483. 372. For other rulings, as to whether par- ticular contracts, relating to personal property, are sales, or contracts of bailment or agency, Schenck ». Saunders, (13 G.) 79 37; Richmond v. "Whittlesey, (2 A.) 84 230; Stevens v. Cunningham, (3 A.) 85 491; Mansfield «. Converse, (8 A.) 90 182; Andenried v. Betteley, (8 A.) 90 302; Foot 1). Hunkins, (14 A.) 96 15; Hunt v. "Wyman, lOO 198; "Walker i>. Butter- ick, 105 237; Dittmar r. Norman, 118 319; "Westfield i>. Mayo, 122 100; Smith v. Emerson, 126 169. [See, also, Agency; Bailment; Sale.] 373. "Where A, who was in the habit of sell- ing lumber to B, during his dealing with him gave him a written receipt for a note ' ' on ac- count of bills rendered; if there are any errors, they shall be corrected; and a discount of five 260 CONTRACT, IV, (Y); V, (1). per cent to be made to him on all bills, without interest," the discount does not, by the terms of the contract, apply to lumber thereafter to be delivered; but, there being oral evidence as to the discount, the question may be left to the jury. Clifton v. Litchfield, 106 34. 374. For rulings upon the peculiar phrase- ology of certain agreements, relating to build- ing and using wharfs, see Knowlton t>. Sewall, (10 A.) 92 34; Long Wharf v. Central Wharf, (14 A.) 96 271 ; Central Wharf «. India Wharf, 123 567. 375. As to a contract to discharge a ship at a specified wharf, see Warren e. Skolfield, 104 503. 376. A contract that articles to be delivered shall average a certain weight, imports, unless the contract requires a different construction, a warranty against a deficiency, not an excess of weight. Whitney v. Thacher, 117 523. 377. Where the party, who is to receive logs of an average diameter, terminates the contract before complete delivery, he cannot object that those delivered averaged less than the specified diameter. Wolf v. Boston Veneer B. Co., 109 68. 378. For rulings under the peculiar phrase- ology of particular special eontracts, see To deliver timber for which a note was to be given, meaning obscured by erasures, etc. Warren v. Merrifield, (8 Met.) 49 93. To purchase wool either as agent for, or as joint contractor with, the other party. Dericsson ». Whitney, (6 G.) 72 248. To turn a river from its channel, and exca- vate a new channel. Walker v. Fitchburg, 102 407. Personal property conveyed to a partnership with real property. Bliffins v. Wilson, 113 248. Relating to the descent and distribution of a decedent's property. Hastings v.- Hastings, 123 158. V. Performance. [For cases relating to the performance of condi- tions, see ante, IV, (i) and Condition. II, (1): for cases relating to stipulations that the sufficiency of performance shall be determined by a party or a third person, see ante, art. 347.] (1.) Substantial performance; waiver thereof; partial performance. [For rulings in cases where a contract has been Eartinlly performed in good faith, and the defendant as received the benefit f such partial performance, see Assumpsit, III, (4)."] 379. A stipulation in a contract in the nature of a forfeiture, in case of the inability of a party to perform, will be construed, where the context permits, to mean an absolute inability, not a failure to perform in subordinate details. Kenworthy v. Stevens, 132 123. 380. Where a contract provides for furnish- ing " about 400 frames," weighing on an aver- age 10 pounds the pair, it is for the jury to decide whether it is forfeited by furnishing 331 frames, weighing on the average 12 pounds the pair. Clapp v. Thayer, 112 296. 381. Where a contract by a coal merchant to deliver a certain quantity of coal, " but if pre- vented or obstructed" by breaches, etc., on the railroads, or at the mines, " no claim for dam- ages will be allowed," the contractor, in case of such breaches, is bound to furnish such a pro- portion of his reduced means of supply, as the order bore to his entire sales. Oakman v. Boyce, 100 477. 382. A finding by an auditor, that a contract for building a barn was substantially performed, ''except the hanging of the large doors," does not imply, as matter of law, that it was not substantially performed. Rose v. O'Riley, 111 57. 383. A bond to convey land, upon the pay- ment of a note, includes a note of the same amount, but of a different date, substituted by cons;nt for the original note. Norton «. Sweet, 15 169. 384. A covenant to convey lands in Illinois and have the deed in Boston before a day named, is substantially fulfilled, if the deed is deposited in the proper office in Illinois for record, before, although it does not reach Boston till after, the day. Shaw c. Hayward, (7 C.) 61 170. 385. As to a substantial performance of a contract with county commissioners to build a road, see Snow v. Ware, (13 Met.) 54 42. 386. Where a party, entitled to a deed under a contract, takes specific objections to the deed tendered, in such a mode as to authorize the other party to infer, that he waives all other objections, this is a waiver of the others. Gerrish v. Norris, (9 C ) 63 167. 387. Where there is a contract to take lease" hold premises, and the stock, etc., for which a written assignment is to be given, and the pur- chaser enters, witho-.t a written assignment, and holds without interruption, he cannot de- fend an action for the price of the stock, on the ground that the written assignment has not been given. Knight v. New England W. Co., (2 C.) 56 271. 388. Where a person has contracted to sup- port another, during his life, and the latter leaves the former's house, and resides elsewhere for several years, making no claim for support, this is a waiver of the claim, and a discharge of the contract. Jenkins v. Stetson, (9 A.) 91 128. 389. Where the acts rf the party entitled to enforce $ contract are clearly inconsistent with any claim thereunder, the court will pronounce them to be a waiver of performance, or of » condition, as the case may be; but whether their import is doubtful, the question of waiver is for the jury. Baker v. Mair, 12 121; Thayer «. Wadsworth, (19 P.) 36 349; Fox *. Harding, (7 C.) 61 516; Conn. R. Baili road e. VVilliston, (16 G.) 82 64; Gard- ner v. Boston Water Power Co., (» A J 91 466; Dwight v. Hamilton, H a 175; West v. Piatt, 127 367. CONTEACT, V, (1), (2). 261 390. "Where one party is ready, willing, and and able to perform, and the other refuses to perform, a complete performance, or tender of performance is not necessary to enable the former to recover. Taunton v. Caswell, (4 P.) 21 275; Howland d. Leach, (11 P.) 28 151; Par- ker v. Perkins, (8 C.) 62 318; Cook v. Doggett, (2 A.) 84 439; Mullaly «. Austin, 97 30; Carpenter v. Holcomb, 105 280; Scanlan v. Geddes, 112 15; West v. Piatt, 127 367. [See, also Vendor and Vendee.] 391. So where the other party disables him- self to perform. Newcomb 11. Brackett, 16 161; Can- ada v. Canada, (6 C.) 60 15; Buttrick v. Holden, (8 C.) 62 233. 392. "Where one has built a church, under a contract with a religious society, it is for the jury to say, whether taking possession thereof and occupying it, are an acceptance of suffi- cient fulfilment, notwithstanding an oral claim to the contrary made at the time. Gray v. James, 126 110. 393. For rulings under a particular contract, that the plaintiff was not relieved from per- formance, or offer to perform, by mere inaction of the defendant, and failure to prepare him- self for performance, not amounting to disa- bility, and that the plaintiff could not recover, for failure to show that he was ready, willing, and able to perform, and that the defendant had notice thereof, see Brown v. Davis, 138 458. (2.) Excuses for nonperformance, 394. Where the condition of a bond is pos- sible when it is made, and before it can be per- formed, it becomes impossible by the act of God, or of the law, or of the obligee, the obli- gation is saved. Badlam v. Tucker, (1 P.) 18 284. 395. Where a man is bound to perform a contract, which becomes impossible by the act of God, or unlawful by statute, after the making of the contract, he is excused from performance, and may plead the matter in excuse when sued upon his contract. Harrington v. Dennie, 13 93. 396. Where the law creates a duty, and the party is disabled from performing it without any default of his own, the law will excuse him; but if, by his own contract, he creates a duty or charge on himself, he is bound to make it good, notwithstanding any accident by in- evitable necessity. Per Shaw, Ch. J., in Mill Dam Foundery e. Hovey, (21 P.) 38 417. 397. Where one has contracted to do certain work on a building for a specified sum, and after the work is partly done, the building is destroyed by fire, without his fault, he may re- cover upon a qtutntum meruit. Lord v. Wheeler, (1 G.) 67 282; Cleary v. Sdhier, 120 210. 398. Where property is destroyed by fire, the loss falls upon the owner at the time; and if he has agreed with another to sell and convey it, and full payment has not been made, he can- not recover or retain any part of the purchase money, although the purchaser has entered. Thompson v. Gould, (20 P ) 37 134; Wells i>. Calnan, 107 514. 399. But if one contracts to build a house for another upon the latter's land, and it is de- stroyed by fire before completion, he is not dis- charged; and he can recover nothing for the work already done. Adams v. Nichols, (19 P.) 36 275; Wells v. Calnan, 107 514. 400. A lessee must pay rent or make repairs, according to his contract, notwithstanding the destruction of the building by fire. Fowler v. Bott, 6 63; Kramer v. Cook, (7 G.) 73 550; Leavitt v. Fletcher, (10 A.) 92 119; "Wells«. Calnan, 107 514. 401. Aliter, as to rent, if the lease gives him no interest in the land. Shawmut Nat. Bk. v. Boston, 118 125. [See Landlord and Tenant, IV, (2): VI, (3).] 402. A contract to board a pauper for a year, at so much a week, is terminated by the pauper's death, and assumpsit lies for the board actually furnished. Wellington ». West Boylston, (4 P.) 21 101. 403. An arrest, conviction, and imprison- ment for a crime, excuse a workman from giving notice before leaving his employer's service, without which, by the contract, he forfeits his wages. Hughes v. Wamsutta Mills, (11 A.) 93 201. 404. A contract, to be performed with a for- eign resident, is suspended by war or embargo. Baylies v. Fettyplace, 7 325; Brown v. Delano, 12 370. 405. Under a contract to sell a vessel and pay over the proceeds, the promisor is entitled to a reasonable time to sell, and if she is lost mean- while, he is discharged. Adams «. Foster, (5 C.) 59 156. [See, also, Thomas v. Knowles, 128 22, ante, art. 60.] 406. A contract to take shares in a turnpike corporation is not binding, if the course of the road is afterwards altered by statute, although the promisor petitioned for the alteration. Middlesex Turnpike v. Locke, 8 268; Middlesex Turnpike v. Swan, 10 384; Middlesex Turnpike «.Walker, 10 390. 407. Where a party prevents performance by the other, either by an affirmative act, or by a neglect, delay, or omission, which disables the latter from performing, performance is excused; and the latter may sue or defend as the case may be. Bradstreet v. Baldwin, 11 229; Fra- zier v. Cushman, 12 277; Thompson 1). Rehoboth Cong. Soc, (5 P.) 22 469; Lord v. Tyler, (14 P.) 31 156; Walker ».Fitts,(24P.) 41 191; Palmer v. Stock- well, (9 G.) 75 237; Clapp v. Thomas, (7 A.) 89 188; Blanchard v. Blackstone, 102 343; Gage v. Maryland Coal Co., 124 442. 262 CONTEACT, V, (2), (3). 408 In an action to recover the balance due upon a contract to build a house, where the de- fendant insisted that it was not completed at the stipulated time, and the auditor found that the delay was caused by extra work, done at the defendant's request, a question to the architect, whether the extra work was of such a character as to render performance within the time im- possible, is properly excluded. Campbell v. Russell, 139 278. 409. The advice of counsel is not an excuse for nonperformance. Kenerson v. Henry, 101 152. 410. If performance of one part of an alter- native promise has become impossible, with or without the act of the promisor, that does not relieve him from performance of the other. Drake v. White, 117 10; Frothing- ham ». Seymour, 121 409. 411. Where stipulations or contracts are in- dependent, nonperformance by one party does not excuse nonperformance by the oth.r. Turner «. Rogers, 121 12. 412. Aliter, where dependent; but to form an excuse the one broken by the other must have been first in order, or simultaneous. White ». Wieland, 109 291. ' [See, ante, IV, (4).l 413. And a refusal in advance will not suffice. Somers v. Wright, 115 292. 414. Nor will a refusal by one party to ac- cept performance by the other of one act, ex- cuse nonperformance of a subsequent act by the latter. Collins «. Delaporte, 115 159. 415. A ship owner is responsible for breach of his contract relating to the voyage, by the master, contrary to his orders; and after such a breach, the other party is not bound to accept performance by another vessel, and after the time stipulated. Higginson v. Weld, (14 G.) SO 165. 416 In general, a subsequent offer to per- form, before the other party has suffered any harm, by an original refusal, will restore the party making it to his former rights. Mengis v. Carson, 1 14 410. (3.) Time and place. 417 Where a time is stated in a contract, within which it is to be completed, it is of the essence of the contract, and the act must be done within that period; otherwise there can be no recovery upon the contract. Picfeering «. Greenwood, 114 479. See, also, Longley v. Cotting, (9 P.) 26 329; Little v. Blunt, (16 P.) 33 359; Quarles v. George, (23 P.) 40 400. 418. The construction of the contract, as to whether time is of the essence, is for the court, and it is not for the jury to determine what is a reasonable time thereafter for completion. Pickering t. Greenwood, 114 479. [As to the right to recover upon a quantum meruit, where the work was beneficial to the other party, see Pickering v. Greenwood, 114 479, and cases cited in Assumpsit, III, (4).] 419 A completion, after the time specified, 3s a sufficient performance, if the other party agrees to the postponement, or, knowing the facts, accepts or does not dissent; and the ac- ceptance, etc., may be inferred from circum- Flagg e. Dryden, (7 P.) 24 52; Snow v. Ware, (13 Met.) 54 42. 420. A contract to "deliver on the cars," is fulfilled by a seasonable delivery at the station at the promisor's residence, although it does not reach the promisee till afterwards. Allen ». Kimball, (12 C.) 66 268. 421. With respect to the sufficiency of deliv- ery, a contract to deliver, within a certain time, is to have a reasonable construction, having re' gard to the nature of the transaction, the object to be accomplished, and the usages and mode of conducting the business. Curtis ». Brewer, (17 P.) 34 513- Rommel v. Wingate, 103 327; Peck t>. Waters, 104 345; Sherley v. McCor- mick, 135 126. 422. Where the contract is to deliver within six months, and to give six days prior notice, the breach occurs on the last day of the six months, not six days previously. Quarles v. George, (23 P.) 40 400. 423. Where no time is mentioned, the con- tract is broken by failure to do the act within a reasonable time; and if it is done after the lapse of such a time, without the assent of the other party, that does not affect his right of action. Lawton v. Fitcliburg R. R, (8 C.) 62 230. See, also, Andrews v. Frye, 104 234; cited post, art. 444. 424. So where the time specified is indefinitely postponed by mutual consent, either party may subsequently require performance within a reasonable time. Westu. Piatt, 127 367. 425. Where A promises to pay B a certain sum, in consideration of B's agreement to con- vey to him, all his right, etc., under a bond for a deed, given to him by C, with a proviso, that if C's title is defective, the agreement shall he void, unless the title is made good within a reasonable time; and the bond referred to pro- vides that the deed is to be given within a year from its date; if B performs within the year, and the title is good, the money is payable immediately. Cram v. Holt, 135 46. 426. Where one party is not bound to de- liver, until notified by the other that he is ready to receive, he has a reasonable time to deliver after notice; and if, by the terms he was to de- liver by a certain day, and the notice is not given in season to enable him reasonably to do so, his time is extended, and proof of a local usage is inadmissible. Snelling v. Hall, 107 134. [Generally, upon this subject, see, also, Hsabon- able Time. A s to time in contracts to convey rem property, see Vendor and Vendee.1 427. In this Commonwealth, an action for a breach will not lie, before the time fixedfor per- formance of a contract relating to realty as wen as personalty, although the party absolutely re- fuses ever to perform. _ „ _ Daniels v. Newton, 114 530; Nason ». Holt, 114 541, note. CONTACT, V, (3), (4); VI, (1). 263 428. A contract, made in this Commonwealth, for the sale by a Kentucky manufacturer of whiskey, thereafter to be manufactured, for a sum payable ' ' upon delivery of warehouse re- ceipts for the whiskey," implies that the con- tract is to be completed in Kentucky, and it is therefore immaterial whether the other party had a license to sell liquors here. Sherley v. McCormick, 135 126. [See, for other rulings upon contracts to be per- formed elsewhere, for liquors to be sold in this Com- monwealth, Conflict of Laws, III, (*); and ante, III.] 429. An agreement by B to pay A certain prices for stone, " to answer on a note " given by A to B, gives A an election to deliver the stone, instead of paying the money; but if he elects so to do, he must deliver it at B's resi- dence or place of business. Nashua & L Railroad v. Nutting, (15 6.) 81 25. 430. "When the time and place of delivery are specified, a plea that the defendant was then and there ready to deliver, is a good bar in an action on the promise. Robbins v. Luce, 4 474. 431. A contract dated April 20, to be per- formed in twenty days, gives the party the whole of the 9th of May tor fulfilment, although it was executed bef re noon. Buttrick v. Holden, (8 C.) 62 233. [See Time.] 432. If the contract provides for delivery, at a place to be designated by the purchaser, and he fails to designate a place, delivery or readi- ness to deliver at his place of business suffices. Lucas v. Nichols, (5 G.) 7 1 309. 433. An agreement to deliver at the ware- house of a firm, is satisfied by a delivery to and acceptance by one of the partners, at his ware- house, the firm having been dissolved. Cady v. Shepherd, (11 P.) 28 400. 434. "Where no place is specified for delivery of an article to be manufactured, and, after it is completed, the manufacturer agrees to deliver it at the purchaser's place of business, he is liable for any injury to it by carelessness in transportation. Taylor «. Cole, 111 363. 435. A promise, by a master of a vessel, to deliver goods to a consignee, does not require him to deliver them to the consignee personally, or at any particular wharf ; but only to leave them at the usual place of unloading, and to give him notice thereof. Chickering s. Fowler, (4 P.) 21 371. [For rulings as to the place of delivery under a bill of lading, see Bill of Lading.] (4.) Other cases of performance and breach. 436. An offer to perform, with readiness and ability to. perform, is generally equivalent to ' performance. Howland ». Leach, (11 P.) 28 151. 437. "Where A purchases half of a machine from B, giving a note, promising to pay the purchase price at a specified time, or forfeit the half he had bought, and the machine is deliv- ered to A, who, at maturity, refuses to pay the note or redeliver the machine, but gives B a bill of sale of half thereof, B may maintain an action for the purchase money. Tuckerman v. Floyd, 106 72. 438. A bond to bequeath to the obligee is broken at the obligor's death, by a will be- queathing to another, which is proved and allowed by the probate court; and an action thereupon lies against the executor, before set- tlement of the estate. Jenkins v. Stetson, (9 A.) 91 128. 439. A contract to deliver personal property, is not broken by a bill of sale to a creditor, as security, without delivery to him, or by a levy and sale, by the seller's creditor, after delivery to the purchaser. Flagg v. Dryden, (7 P ) 24 52. 440. Where A has covenanted to sell to B land, for a price to be fixed by appraisers, and, on its being fixed, A declares to him that he will not let it go at that price, B cannot recover, without tendering the pr.ce, and demanding a conveyance. Pomroy v. Gold, (2 Met.) 43 500. 441. But if A has conveyed the land to another, a tender and demand are not necessary. Newcomb v. Brackett. 16 161; But- trick v. Holden, (8 C.) 62 233; Lowe v. Harwood, 139 133. 442. Where A authorizes B to sue in his name, and covenants to assign to B any judg- ment and execution which may be recovered, and afterwards, before final judgment, releases the cause of action, this is a breach of the cov- enant. Hopkins v. Young, 11 302. 443. Where one covenants to assign and con- vey a valuable thing to another, and before the time prescribed for the conveyance, he destroys the thing, or renders it of no value, this is a breach of the covenant. Per Jackson, J., in Hopkins v. Young, 11 302. 444. One who has agreed with Another to as- sume and pay a debt against him, and has neglected for two years to do so, is liable with- out a demand. Andrews v. Frye, 104 234. VI. Modification; Extinguishment. (1.) Rescission or avoidance. [See, also, Cheat; Fraud ; Laches , Sale.] 445. If one party to a contract, which has been partly performed by the other, repudiates it when the other is not in default, the latter may rescind or avoid the contract, and recover back the money paid, or the value of work done, or articles furnished, by him under it. Moore v. Curry, 112 13; Cook v. Gray, 133 106; Jewett v. Brooks, 134 505; Bailout). Billings, 136 307. [See, also, Assumpsit, I; III.] 446. And in this Commonwealth the rule is the same, although the contract is under seal. Cook v. Gray, 133 106; Ballou v. Billings, 136 307. 447. Where both parties are in default, neither can rescind for the other's default. Seymour «. Bennet, 14 266; Cham- berlain v. Neale, (9 A.) 91 410. 264 CONTEACT, VI, (1). r As to the right to rescind, as dependent upon the question whether the contract is entire or divisible, see, also, aide, IV, (3).] 448. An absolute refusal to perform a con- tract, before performance is due, is not a present breach; but such a refusal, after the time, and under the conditions, when performance is due, is a breach, although the contract is to continue in future. Daniels 0. Newton, 114 530; Parker « Russell, 133 74. 449 And where A contracted to support B during his life, and after supporting him for five years, ceased for two years to furnish any support, B may treat the contract as at end, and recover damages for nonperformance in the future as well as in the past. Parker v. Russell, 133 74. 450. As to the general rule, that damages for a total br ach, or the value of the entire con- tract may be recovered, wherever the party rightfully elects to treat the contract as at end, see, also, Mullaly v. Austin, 97 30; Amos v. Oakley, 131 413; Jewett v. Brooks, 134 505. 451. A sale of real or personal property, or an exchange of chattels, which has been ob- tained by fraud, maybe rescinded by the seller. Kimball 0. Cunningham, 4 502; Hol- brook 0. Burt, (22 P.) 39 546; Thurston v. Blanchard, (22 P.) 39 18; Perley v. Balch, (23 P.) 40 283; Skinner 0. Brig- ham, 126 132. 452. But the election to rescind must be ex- ercised within a reasonable time. Holbrook 0. Burt, (22 P.) 39 546; Bassett ». Brown, 105 551; Nealon v. Henry, 131 153. [.See, also, Fraud ; Sale.] 453. An action by the seller for the agreed price, or upon a note given therefor, is an affir- mance, and prevents the seller from afterwards rescinding. Allen 0. Ford, (19 P.) 36 217. 454. And if the seller, knowing the facts, appropriates to his own use any part of the con- sideration, he eannot rescind. Whitwell v. Vincent, (4 P.) 21 449; Bowker «. Hoyt, (18 P.) 35 555; Miner 0. Bradley, (22 P.) 39 457; Bassett 0. Brown, 105 551. 455 If, in an action for the price, the plain- tiff attaches the goods, the contract is affirmed; but an attachment by the officer, without the plaintiff's knowledge, and afterwards disaf- firmed by him, does not prevent a recovery. Browning v. Bancroft, (8 Met.) 49 278. 456. A mortgage back for all the purchase money of land, and an attachment of the equity of redemption, do not impair the purchaser's right of rescission. Holbrook 0. Burt, (22 P.) 39 546. 457. Nor does a demand of payment, after action brought, of a promissory note taken upon the sale. Manning 0. Albee, (11 A.) 93 520. 458. A contract for a sale may be rescinded by mutual consent; and in such a case, if the property has been delivered to an agent or fac- tor of the vendee, and he afterwards knowingly sells it, the sale is void. Johnson v. Reed, 9 78; Springs Cof. fin, 10 81. 459. A rescission by consent may be implied from the parties' acts, but where there is any doubt upon the evidence as to the intent or effect of such acts, it is to be determined by the jury. Johnson v. Reed, 9 78; Marland v Stanwood, lOl 470; Priest 1>. Wheeler 101 479. 460. "Where, however, the parties' acts are clearly inconsistent with the continuance of the contract, the court will hold that it has been rescinded as matter of law. Goodrich 0. Lafflin, (1 P.) 18 57- Hill ». Green, (4 P.) 21 114; Adams t. Bos- ton Iron Co., (10 G.) 76 495; Clement, etc., M. Co. v. Meserole, 107 362. 461. For instances of the insufficiency of equivocal acts, to constitute a rescission, see Leonard 0. Morgan, (6 G.) 72 412- O'Donnell 0. Allen, (6 A.) 88 106; "Warden 0. Marshall, 99 305; McLean 0. Richardson, 127 339. 462. Rescission or avoidance annihilates the contract, and puts the parties in the same posi- tion as if it had never existed. Coolidge 0. Brigham, (1 Met.) 42 547; Ballou0. Billings, 136 307. See, also, Newbury 0. Bay State S. Co., (7 A.) 89 257; Curtis 0. Littlefield, (8 A.) 90 570. 463. A contract cannot be rescinded by one party for the default of another, unless both can be put in the same state as before the con- tract. Coolidge 0. Brigham, (1 Met.) 42 547; Morse 0. Brackett, 98 205. 464. Accordingly, a vendee of merchandise, sold under an entire contract, who seeks to re- scind, cannot retain a portion, and return the rest; he must return the whole, unless that which he retains is wholly worthless. Kimball 0. Cunningham, 4 502; Per- ley 0. Balch, (23 P.) 40 283; Morse a Brackett, 98 205, Peru Steel, etc., Co. 0. "Whipple File, etc., Co., 109 464; Brown 0. Hartford Ins. Co., 117 479; Comm. 0. Lynn, 123 218. 465. An article is not worthless within the rule, if it is capable of serving any purpose of advantage, or if its loss is a disadvantage to the party in any way. Bassett 0. Brown, 105 551. 466. Accordingly a sale cannot be rescinded, without returning a third person's note, al- though the payee's indorsement is forged. Coolidge 0. Brigham, (1 Met.) 42 547. 467. So where lime sold in casks is worthless, the casks must be returned. Conner 0. Henderson, 15 319. 468. So if wool delivered is not according to' contract, the bag must be returned with the wool. Morse 0. Brackett, 98 205. 469. But if it is shown that a third person's note is absolutely worthless, it need not be re- turned. Estabrook 0, Swett, 116 303. CONTEACT, VI, (1), (2). 265 470. So counterfeit United States bonds need not be returned. Brewster v. Burnett, 125 68. 471. And it suffices to return at the trial the purchaser's own note, although the action is against a third person who purchased with notice. „ „_ _. Thurston*. Blanchard, (22 P.) 39 18, Stevens v. Austin, (1 Met.) 42 557; Shaw «. Lowell Meth. Soc, (8 Met.) 49 223. 472. Where the party has received, by means of the property fraudulently procured by him, a greater sum than he has paid therefor, it is not necessary for the rescinding party to restore the purchase price. Montgomery v. Pickering, 116 227. 473. Nor is it necessary to return if the pur- chaser cannot be found. Manning t. Albee, (11 A.) 93 520. 474. Nor is it necessary to return a discharge of a suit, part of the consideration. Foss v. Hildreth, (10 A.) 92 76. 475. Where one, fulfilling an agreement to convey a parcel of land for a certain price, is induced by fraud to convey also another parcel, he may maintain a writ of entry for the latter parcel without restoring the consideration, but not for the former. Bartlett v. Drake, lOO 174. 476. And where part of the consideration was an order on a third person, which was paid, and part a third person's note, the party rescind- ing may return the note, and sue for the bal- ance of the purchase money. Martin v. Roberts, (5 C.) 59 126. 477. An action founded on a rescission will not be defeated by the fact that the plaintiff has negotiated a note received as part of the consideration, if it was done without knowledge of the fraud. Manning v. Albee, (11 A.) 93 520. 478. If part of the consideration was a third persons's note, fraudulently represented to have been given for value, and to be good, an action for the balance may be maintained, without first returning the note filing it in court, at any time before final judgment, suffices. Bridge v. Batchelder, (9 A ) 91 394. 479. The rules as to rescission and returning the consideration are the same, where the rescinding party defends an action upon the contract, as where he sues for the property or the consideration. Whittonji. Mayo, 114 179; Sears v. Ames, 117 413. 480. Leaving the chattel upon the party's premises, without communicating with him, is not a sufficient return; but a waiver of any further return may be implied from the party's acts. Thayer v. Turner, (8 Met.) 49 550. 481. Where the fraud was committed by an agent of the other party, the party rescinding may return to the agent, and sue him for the consideration. Heddenu. Griffin, 136 229. 482. An action to recover for money paid for goods, in the possession of a third person, upon Vol. 1—34= ' the latter's written promise to deliver them, assigned by the seller to the purchaser, may be maintained, if the plaintiff , being unable to pro- cure the goods, has offered the promise to the defendant, who refused to take it, although he has not demanded the goods. Griggs v. Morgan, (9 A.) 91 37. 483. One who, having accepted a sum in settlement of an unliquidated claim for dam- ages, seeks to rescind and pursue the claim, must first return what he received. Brown » Hartford Ins. Co., .117 479. 484. But if it has been paid on his signing a paper, purporting tc be a settlement and dis- charge, by fraudulent representations that it is merely a receipt for a gratuity, he may main- tain the action without returning lhe money. Mullen v. Old Colony Railr. ad, 127 86. See, also, Smith v. Holyoke, 112 517, explained in this case. 485. One who, having contracted to pur- chase goods, has paid, freight and storage there- upon, but not in good faith in accordance with the contract, cannot, on his failure to perform the contract, require repayment before return- ing the goods. Adams «. O'Connor, lOO 515 <2.) Discbarge; modification. [See, also, Accord and Satisfaction; Payment ; Release ] 486. A perpetual covenant not to sue, is equivalent to a release; but a contract, sealed < r unsealed, not to sue for a time specified, or to forbear, is not a discharga, and so not pleadable in defence. Reed v. Stoddard, lOO 425. See, also, Dow v. Tuttle, 4 414; Perkins v. Gilman, (8 P ) 25 229; Central Bk v. Willard, (17 P) 34 150; Walker t>. Russell, (17 P.) 34 280; Allen v. Kim- ball, (23 P.) 40 473; Foster v. Purdy, (5 Met.) 46 442. 487. But semble, that if the covenant is al- lowed as a defence, an action will not after- wards lie upon it. White v. Dingley, 4 433. 488. A contract made in contemplation of the marriage of the parties, although extinguished in law by the marriage, is enforceable in equity. Miller 11. Goodwin, (8 G.) 74 542. 489. A subscription for building a medical college is discharged, if, after occupying it as such for three years, but before its completion, pursuant to the subscription, it is conveyed to an institution of another kind. Worcester Med. Inst. «. Bigelow, (6 G.) 72 498. 490. But a subscription to build and endow an academy is not discharged by the committee taking a deed, which does not convey a fee, and is subject to burdensome conditions. Ives v. Sterling, (6 Met.) 47 310. [See,further v as to subscriptions, ante, arts. 59, 73, 118 to 123, 337, 339.1 491. The dissolution of a partnership does not discharge a contract which may be per- formed by the individuals composing it. Palmer v. Sawyer, 1 14 1. 266 CONTEACT, VI, (2), (3)— CONVEESION. 492. Aliter, if the contract so provides as to either party. Blasdell v. Souther, (6 G.) 72 149. 493. An agreement between the Plymouth Colony government and three towns, by which the latter undertook to maintain a certain bridge, was discharged by the subsequent creation of two new towns, from the three contracting, towns. Pembroke v. Duxbury, (1 P.) 18 199. 494. The death of a party, or of one of two or more joint parties, does not discharge either or any party, if the contract may be fulfilled by or to the survivor or personal representative; except where the engagement is of a strictly personal character, or one requiring personal skill or capacity. Martin v. Hunt, (1 A.) 83 418; Har- rison v. Conlan, (10 A.) 92 85; White B.Allen, 133 423. 495. A husband's contract for board and ex- penses of his wife at an insane hospital is terminated by his death. Stinson v. Prescott, (15 G.) 81 335. 496. But where one, in anticipation of being appointed guardian of an insane person, under- takes to pay the board, etc., of the latter at a hospital, and is afterwards appointed guardian, his resignation as guardian does not discharge him. Mass. Gen. Hospital v. Fairbanks, 132 414. 497. A continuing contract, which is revo- cable at any time, is terminated by the death of the promisor; and the other party cannot re- cover against the executor for a subsequent continued performance, although he had no notice. Browne v. McDonald, 129 66. 498. Where an oral contract for purchase and sale is made, and after part performance, the seller refuses to complete, unless the pur- chaser will agree to pay a higher price, and the latter so agrees, and pays accordingly, he cannot maintain an action for breach of the original contract. Rogers v. Rogers, 139 440. 499. Whether a new agreement is a substitute for the old, and thus rescinds and discharges it, is to be determined by the intention of the parties, to be ascertained from their correspond- ence and conduct. Rogers v. Rogers, 139 440. See, also, Munroe «. Perkins, (9 P.) 26 298; Cummings v. Arnold, (3 Met.) 44 486; Stearns v. Hall, (9 C.) 63 31; Holmes v. Doane, (9 C.) 63 135; Peck v. Requa, (13 G.) 79 407; Hastings «. Lovejoy, 140 261. (3.) Other matters. 500. A contract, which by its terms has ex- pired, cannot be considered, as existing after- wards, from the fact that it was so treated by the party against whom it is sought to be en- forced, or was orally recognized by him as subsisting. Hopedale Mach. Co. v. Entwistle, 133 443. See, also, Boston, etc., Works, v. Montague, 135 319. 501. An oral agreement is merged in a subse- quent written agreement upon the same subject and is not revived because the latter is avoided by an alteration by the promisee. Peirce v. Doit, (8 P.) 25 239; Mun- roe e. Perkins, (9 P.) 26 298; Wheelock v. Freeman, (13 P.) 30 165; Lorine a Alden, (3 Met.) 44 576. 6 ' 502. But where an attorney, after performing some services, made a written agreement whicH was avoided for champerty, that did not merge the implied contract to pay for the previous services. Thurston v. Percival, (1 P.) 18 415, 503. A debt or other simple contract is merged in a specialty or a judgment. Banorgee v, Hovey, 5 11; Ward a Johnson, 13 148. 504. A written agreement, although under seal, may be modified or annulled by a new oral contract. Nickerson v. Easton, (12 P.) 29 110 Richardson v. Hooper, (13 P.) 30 446 Cummings v. Arnold, (3 Met.) 44 486 Stearns ». Hall, (9 C.) 63 31; Munroe a. Perkins, (9 P.) 26 298. 505. Where a contract is subsequently modi- fied by another affecting both parties, no new consideration is necessary. Holmes «. Doane, (9 C.) 63 135. 506. Where A, having contracted to labor for B for one year, leaves him at the expiration of six months, so that he cannot .recover any thing, if B promises to pay him for his six months work upon any new consideration, however slight, the original contraet will be regarded as waived, and he can recover. Rice v. Dwight Man. Co., (2 C.) 56 80. 507. In order to terminate or modify a con- tract, there must be the same mutual assent as to all the terms, which is required to make a contract; otherwise the first contract stands. Allcott v. Boston S. F. Co.. (9 C.) 63 17. Contribution. [See Assumpsit, III, (3) ; Corporation, V ; De- vise and Bequest, IV; Equity Jurisdiction, 11. IS); Heirs, etc., II; Joint Liability, IL (2); Joint Tenants, etc, I, (3); II; Mortgage, IV, ffl: Partnership, I, (4); III; IV, (1); Surety, in, (3).] Controversy, submission of. [See Case stated.] Conversion. (Action for.) [See Trover.] Conversion. Equitable.) [See Equitable Conversion.] CONVEYANCE— CONVICTION, I; II. 267 Conveyance. [See Deed; Fraud, III; Grant; Mortgage; Seal. J Convict. [See State Prison.] Conviction and sentence. I. General Rules as to Conviction. II. Conviction of Part of an Offence CHARGED, OR OF A LESS OFFENCE. III. General Rules as to Sentence. IV. Second Conviction and additional Sentence. |See, also, Constitutional Law; Evidence; For-MER Adjudication ; Indictment ; Trial. As to a suspension of sentence after conviction, by laying the indictment on file, see Practice, II, (4).] I. General Rules as to Conviction. 1. A statute allowing to a person convicted an appeal, if taken " before the rising of the court before which such conviction shall be hads" re- quires the appeal to be taken before the end of the term, at which the verdict is rendered. Comm. «. Richards, (17 P.) 34 295. 2. In general, the legal meaning of " convic- tion " is the proceeding of record which ascer- tains the guilt of the party, and upon which the sentence or judgment is founded; which may accrue either by a plea of guilty, or a verdict of guilty. Comm. i). Richards, (17 P.) 34 295; Comm. o. Lockwood, 109 323. 3. The term " conviction" is used in at least two different senses in our statutes. In its most common use, it signifies a finding of .the jury that the prisoner is guilty; but it is very fre- quently used as implying a judgment and sen- tence of the court, upon a verdict or confession of guilt. In the statute, allowing a conviction to he shown to affect a witness's credibility, it im- plies a judgment. Comm. v. Gorham, 99 430. _ 4. Upon a trial in a criminal cause, it is suffi- cient to prove so much of the offence charged as constitutes the offence punishable by law; if an allegation of an aggravation is set forth, the jury may convict of the offence charged, with- out the aggravation. Comm. v. Adams, 127 15. See, also, Comm. «. Griffin, (21 P.) 38 523; Larned «. Comm., (12 Met.) 53 240; 240; Comm. ». Livermore, (4 G.) 70 18; Comm. e. Armstrong, (7 G.) 73 49; Comm. v. Kimball, (7 G.) 73 328; Comm. v. Cox, (7 A.) 89 577; Comm. v. O'Brien, 107 208. 5. So if two specifications are charged, and one only proved, if that is sufficient, the proof suffices to convict. Comm. n. Kneeland, (20 P.) 37 206. 6. But where one is indicted for receiving stolen goods, and the indictment alleges a for- mer conviction for the same offence, as aggra vation* but this allegation is not proved, the court will not sentence upon a general verdict of guilty, but will direct a new trial. Comm. v. Briggs, (5 P.) 22 429; Comm. v. Briggs, (7 P.) 24 177. .7. Where the complaint contains several counts, the plea, conviction, and sentence may be general upon the complaint as a whole. Comm. «. Holmes, 137 248. See, also, Carlton v. Comm., (5 Met.) 46 532; Kite v. Comm., (11 Met.) 52 581; Comm. v. Foster, 122 317; and In- dictment, IV. (1). 8. Upon an indictment for adultery, contain- ing three counts, each charg.ng a distinct of- fence, the defendants may be convicted upon one count, and acquitted on the others. Comm. v. Ruisseau, 140 363. II. Conviction of Part of an Offence charged, or of a less Offence. 9. Before the R. S., one indicted for a felony could not be convicted of part of the charge, unless that part amounted to a felony. Comm. 1>. Newell, 7 245; Comm.. v. Roby, (12 P.) 29 496. Contra, Comm. v. Cooper, 15 187, overruled. 10. But under Ihe statute, one indicted for rape may be convicted of an assault and bat- tery. Comm. v. Drum, (19 P.) 36 479. See, also, Rape.} 11. Or of incest. Comm. v. Goodhue, (2 Met.) 43 193. 12. One indicted for manslaughter may be convicted of assault and battery. Comm. v. Drum, (19 P.) 36 479. 13. One indicted for breaking and entering a dwelling in the night, and stealing therein, may be convicted of stealing in the day-time, or only of stealing. Comm. e. Hope, (22 P.) 39 1; Kite *. Comm., (11 Met.) 52 581. 14. One indicted for stealing over $100, may be convicted of stealing less than $100. Comm. v. Griffin, (21 P.) 38 523. 15. So one indicted for having in possession mere than ten pieces of counterfeit coin, may be convicted of having less than ten. Comm. ®. Griffin, (21 P.) 38 523; See, also, Larned v. Comm., (12 Met.) 53 240. 16. So one charged with maliciously injuring property of the value of $15 may be convicted of injuring property of less value. Comm.flfCo'x, (7 A) 89 577. 17. One indicted for murder may be con- victed of manslaughter. Comm. e. Roby, (12 P.) 29 496. 18. An indictment, defective in not charging facts necessary to constitute a felony, may be sufficient to authorize the jury_ to convict and the court to sentence for a misdemeanor. In such a case, the word "feloniously" will be re- jected as surplusage. 268 CONVICTION, II; HI. Comm. v. Squire, (1 Met) 42 258. See, also, Comm. v. Carrol, 8 490. 19. One indicted for an assault with felonious intent may be convicted of an assault without felonious intent. Comm. v. Lang, (10 G.) 76 11; Comm. v McGrath, 115 150. 20. It is no defence to an indictment, that the proof shows that the defendant committed an offence of a degree higher than that charged. Comm. v. Walker, 108 309. 21. One indicted for a larceny in a building, and convicted, may be sentenced for simple larceny, if the indictment does not sufficiently charge larceny in a building. Comm. ii. Mahar, (8 G.) 74 469; Comm. v. Hathaway, (14 G.) 80 392. 22. A wife, stealing in a building owned by her husband, may be convicted of larceny, but not of larceny in a building. Comm. v. Hartnett, (3 G.) 69 450. 23. One indicted for assault upon an officer in the discharge of his duties, and obstructing and hindering him therein, may be convicted of a simple assault. Comm. ». Kirby, (2 C.) 56 577. 24. So of one indicted for assault with intent to ravish. Comm. v. Fischblatt, (4 Met.) 45 354. 25. One indicted for an assault upon two may be convicted on proof of an assault upon J ' Comm. v. O'Brien, 107 208. 26. A general verdict of guilty, rendered under an indictment, charging in one count simply the commission of criminal acts, and in another the commission of the same acts with a specific intent, may be sustained on the first count, although erroneous instructions were given as to proof of the intent. Comm. v. Nickerson, (5 A.) 87 518. 27. For a similar ruling on an indictment for perjury, see Comm. « % Johns, (6 G.) 72 274. 28. An indictment for unlawful sales of "spirituous and intoxicating liquors," is not sustained by proof of sale of liquors which are intoxicating, but not spirituous. Comm. 1>. Livermore, (4 G.) 70 18 29. One indicted as a common seller of in- toxicating liquors may be convicted on proof of three sales within the time specified. Comm. v. Armstrong, (7 G.) 73 49. 30. Proof of one of several false pretences suffices for a conviction, on an indictment for obtaining goods by false pretences, if they were obtained by that pretence. Comm. ■». Morrill, (8 C.) 62 571. 31. "Where two or more are indicted, one may be convicted and the others acquitted, except where the agency of two or more is essential to the commission of the offence, such as a 'con- spiracy or a riot. Comm. v. "Wood, 12 313; Comm. v. Griffin, (3 C.) 57 523; Comm. v. Slate, (11 G.) 77 60; Comm. v. Cook, (12 A.) 94 542. 32. But if one pleads guilty, the other can- not be convicted, without proof of joint action with the former, in the offence of which he has pleaded guilty. Comm. v. Jones, 136 173. 33. An indictment concluding contra formam statuti will be maintained, if the facts charged amount to an offence at common law, and are not within the statute. Comm. «. Hoxey, 16 385; Comm. v Reynolds, (14 G.) 80 87. III. General, Rules as to Sentence. [7"or rulings under „he former statute, abolished by St. 1876, C'h. 166; P. S. Ch. 115, S8 82, et seq., relating to fixing by the governor of the time, eto., of execu- tion of a capital sentence, see Constitutional Law, in, (l).f 34. Upon conviction for a felony not capital, no formal inquiry need be put to the defendant before sentence, as to what he has to say why judgment should not proceed against him. Jeffries v. Comm., (12 A.) 94 145. 35. The supreme judicial court, held by a single jui'.ice, has power to arraign a prisoner indicted for a capital offence, and, if he pleads guilty, to sentence him. Opinion of the Justices, (9 A.) 91 585; Green v. Comm., (12 A.) 94 155. 36. Under an indictment for murder, in the usual form, a general plea of guilty of murder in the first degree, authorizes a sentence of death. Greene Comm., (12 A.) 94 155. 37. A sentence to a term of imprisonment, to commence at the expiration of a former sen- tence, is legal; and if the former sentence is shortened by pardon or reversal, the second sentence takes effect as if It had expired by lapse of time. Kite v. Comm., (11 Met.) 52 581; In re Dolan, 101 219. 38. "Where a convict escapes during his term of imprisonment, the time, during which he remains at large, does not abridge the time during which he is to be imprisoned. In re Dolan, lOl 219. 39. Where a statute authorizes punishment by fine, costs may be awarded as an incident. Harris v. Comm., (23 P.) 39 280; Wilde v. Comm., (2 Met.) 43 408. 40. Where one is sentenced to imprisonment, if a fine and costs are not paid within a speci- fied time, and they are not then paid, that part of the sentence becomes null, and the sentence to imprisonment alone remains in force. Wilde v. Comm., (2 Met.) 43 408. 41. Under the statutes allowing a convict a reduction, for good conduct, of his term of im- prisonment, he must be discharged bv the warden or keeper, at the expiration of the shortened term, without a pardon. a Opinion of the Justices, (13 G.) 7» 618. . A statute providing for imprisonment for "such term, not exceeding two years," etc., means any term not exceeding two years. Evans v. Comm., (3 Met.) 44 453. CONVICTION, III. 269 43. For rulings under St. 1815, Ch. 136 (false pretences), as affected by St. 1788, Ch. 53, and St. 1812, Ch. 134, see "Wilde v. Comm., (2 Met.) 43 408. 44. For rulings upon sentences under par- ticular provisions of the R. S., see the follow- ing cases: Ch. 139, § 8, hard labor and solitary impris- onment. Tully v. Comm. , (4 Met. ) 45 357 ; Ste- vens v. Comm., (4 Met.) 45 360; Bump e. Comm., (8 Met.) 49 533. Ch. 143, § 19, house of correction, or county jail. Stevens v. Comm., (4 Met.) 45 360. Ch. 143, § 49, breaking prison, etc. Stevens s. Comm., (4 Met.) 45 360. 45. "Where a statute is repealed before sen- tence, 'without a saving clause as to offences previously committed, no sentence can be pro- nounced. Comm. ii. Marshall, (11 P.) 28 350; Comm. v. Kimball, (21 P.) 38 373; Comm. «. Herrick, (6 C.) 60 465; Comm. i). Pattee, (12 C.) 66 501; Flaherty v. Thomas, (12 A.) 94 428; Comm. «. Mc- Donough, (13 A.) 95 581. 46. And where a statute defines an offence, and a subsequent statute affixes a penalty there- for, if the latter is repealed, no punishment can be inflicted under the general provision, relating to punishments where special provision there- for is. not made. Comm. v. McDonough, (13 A.) 95 581. 47. But one convicted under a statute may be sentenced under a subsequent statute, reducing the punishment from death to imprisonment for life. Comm. v. "Wyman, (12 C.) 66 237. [For additional rulings as to the effect, upon con- viction and sentence, of the modification or repeal of statutes, see Statute, III.] 48. A judge of the superior court has power to increase a sentence, during the same term, be- fore any action upon the first sentence. Comm. v. "Weymouth, (2 A.) 84 144. 49. An appellate court cannot inflict any greater sentence than the court below might have inflicted. In re Feeley, (12 C.) 66 598. [See, also, Habeas Corpus, arts. 12, 13.] 50. But it may inflict a greater sentence than the court below did inflict, if that court had power so to do. Batchelder ». Comm., 109 361. 51. "Where a statute declares that an act, not ■malum in m, shall be adjudged to be a nuisance, the indictment need not allege it to be a nui- sance, but the judgment must so declare. Comm. v. Knowlton, 2 530. 52. A sentence, directing that a penalty be "disposed of according to law," is sufficient, if the statute provides for the disposition thereof. Comm. 1). Horton, (9 P.) 26 206. 53. A record, which sets forth that A was con- victed of maintaining a common nuisance, that the cause was continued until the next term; and that at that term, A "convict as aforesaid," was sentenced, is sufficient. Dohertyfl. Comm., 109 359. 54. "Where the indictment charges several dis- tinct offences, a single sentence upon a general verdict of guilty is good, if it does not exceed the sum of the several sentences which might have been awarded. Carlton v. Comm., (5 Met.) 46 532; Booth v. Comm., (5 Met.) 46 535; ex- plained in Crowley ». Comm., (11 Met.) 52 575. 55. "Where one of two counts of an indict- ment is bad, a general verdict of guilty, and sentence thereupon, will be sustained, if the sentence is warranted by the good count. Brown v. Comm., 8 59; Comm. v. Holmes, 17 336; Jennings v. Comm., (17 P.) 34 80; Josslyn «. Comm., (6 Met.) 47 236; Comm. «. Hawkins, (3 G.) 69 463; Comm. «. Howe, (13 G.) 79 26. 56. And where there was a verdict of guilty upon one count, and no finding by the jury upon another count, judgment upon that count only is correct. Edgerton ». Comm., (5 A.) 87 514. 57. In such a case, the count not passed upon is discontinued. Comm. ■». Foster, 122 317. 58. And where a general verdict of guilty is rendered, upon an indictment containing two or more counts for different offences, and the de- fendant has been sentenced upon one count, although the sentence is erroneous, he cannot be brought up at a subsequent term, to which the cause has not been continued, and sentenced upon the other count. Comm. o. Foster, 122 317. 59. "Where one is tried upon several com- plaints for unlawful sales of intoxicating liquors to the same person on different days, and con- victed upon proof of one sale, he may be sen- tenced upon one complaint, and have a new trial upon the others. Comm. v. Kemby, (2 G.) 68 508. 60. The discretion of a judge of the proba'e court, to sentence a boy to other punishment than commitment to a reformatory institution, under St. 1870, Ch. 359, § 11; P. S., Ch. 89, § 28, is not limited to a boy between 12 and 14 years old. In re Kenney, 108 492. 61. The statute of 1870, and St. 1872, Ch. 358, as far as they gave to inferior tribunals jur- isdiction of offences punishable by infamous punishment, were unconstitutional. Comm. «. Horregan, 127 450. [See onstitutional Law, art. 254."] 62. The provision of G. S., Ch. 76, § 26; P. S., Ch. 89, § 34, requiring notice to the mayor or selectmen, before sentencing a boy to the re- form school, is directory, and its omission does not affect the validity of the sentence. Fanning v. Comm., 120 388. AUter, as to G. S., Ch. 76, § 21, now repealed, requiring a summons to the father from a judge of probate. Fitzgerald r>. Oomm., (5 A.) 87 509. [As to sentences to the house of correction, see House of Correction.] 270 CONVICTION, IV— COEONEE. TV. Second Conviction and additional Sentence. 63 For rulings under the former statutes, providing generally for additional punishment for a second offence, and an information for that purpose, see In re Ross, (2 P.) 19 165; In re Riley, (2 P.) 19 172; Comm. v. Kenis- ton, (5 P.) 22 420; Comm. v. Phillips, (11 P. 1 * 28 28; Ex parte Seymour, (14 P ) 31 40; Ex parte Dick, (14 P.) 31 86; Ex parte White, (14 P.) 31 90; Ex parte Stevens, (14 P.) 31 94; Ex parte Cooke, (15 P.) 32 234; Comm. « Evans, (16 P.) 33 448; Comm. -o. Getchell, (16 P.) 33 452; Comm. v. Mott, (21 P.) 38 492; Wildes. Comm., (2 Met.) 43 408; Plumbly v. Comm., (2 Met.) 43 413; Evans v. Comm., (3 Met.) 44 453; Hopkins v. Comm., (3 Met.) 44 460; Phillips v. Comm., (3 Met.) 44 588; Hutchinson v. Comm., (4 Met.) • 45 359; Booth v. Comm., (7 Met.) 48 285; Bump s>. Comm., (8 Met.) 49 533; Newton v. Comm., (8 Met.) 49 535; Jacquins v. Comm., (9C.) 63 279. [For rulings under the special provisions of the statutes, relating to a conviction for a second or additional offence of unlawfully selling intoxicating liquors, see Intoxicating Liqtjobs, V, (5).] right to protection against publication without his authority. ■Keene v. Kimball, (16 G.) 82 545 Tompkins v. Halleck, 133 33 Co-operative saving fund and loan association. [See Benevolent Association; Loan and Fund Association 1 Coparcenery. (.See Joint Tenants, etc.; Partition; Tenant FOH LlFE.l Copyright and literary property. 1. An action will not lie in favor of the au- thor of a copyrighted book, for a publication disparaging the work, without an allegation and proof of special damage. Swan «. Tappan, (5 C.) 59 104. 2. The proprietor of a dramatic work, not copyrighted, may restrain by injunction an un- authorized representation thereof, upon the stage, although from a copy made by a specta- tor, who attended a public representation thereof by the proprietor, and afterwards wrote it out from memory. Tompkins v. Halleck, 133 32; over- ruing, upon this point, Keene v. Kimball, (16 G.) 82 545. 3. An author has at common law a prop rty in his unpublished works, in which equity will protect him or his assignee. Keene v. Kimball, (16 G.) 82 545; Tompkins «. Halleck, 133 32. 4. The representation upon the stage of an unpublished dramatic work is not a publication which will prevent the author from obtaining a copyright, or deprive him of his equitable Coroner. [Office abolished, St. 1877, Ch. 200, see Medical Examiner. As to a coroner's official bond, saa Bond 11,(1); II, (4).] , *" 1. A coroner may be also a deputy-sheriff; and in that case he may serve a writ upon another deputy-sheriff, or preside at a jury as- sessment of highway damages, where the sheriff is interested. Colby v. Dillingham, 7 475; Wood t. Quincy, (11 C.) 65 487. 2. Where proceedings for the assessment of railroad damages were conducted, under the R. S., partly by the sheriff and partly by a cor- oner, each officer must certify to the proceed- ings before him; and it is no objection, where the coroner presides, that the jury were not at- tended by a deputy-sheriff. Pittsfield & N. A. R. R. v. Poster, (1 C.) 55 480. 3. A coroner may serve criminal process on the sheriff, but a warrant to him to commit the sheriff to the county jail is void. Qu., whether a warrant to commit him generally to the cor- oner's custody is valid. Adams v. Vose, (1 G.) 67 51. 4. A coroner must serve the writ, if a parish, town, or school district, of which the sheriff is a member, is a party. Sutton Parish v. Cole, 8 96; Brewer v. New Gloucester, 14 216; Thayer s. Ray, (17 P.) 34 166. lAliter, by statute, P. S., Ch. 25, § 16.] 5. But a deputy sheriff may serve a writ, al- though a member of the corporation plaintiff. Merchts. Bk. v. Cook, (4 P.) 21 403. 6. And a coroner is not authorized to act be- cause a deputy sheriff is a party. Comm. ». Moore, (19 P.) 36 339; Browning v. Bancroft, (5 Met.) 46 88. 7. A writ de Iwmine replegiando must be served by the coroner, if the sheriff is a party. Wood D.Ross, 11 271. 8. A remote or contingent interest of the sheriff, such as where the action is replevin "against his deputy, is not sufficient to authorize a coroner to serve the writ. Browning v. Bancroft, (5 Met.) 46 88. 9. Where process is to be served by a coro- ner, a general direction to him is not sufficient; the facts which give him power should appear in the writ itself, and the omissicn is a defect which the court will, ex officio, notice. Carlisle v. Weston, (21 P.) 38 535. 10. But the defendant, by appearing and pleading, cures the defect, if it does not affirm- atively appear. Carlisle «. Weston, (21 P.) 38 535; Kittridge v. Bancroft, (1 Met.) 42 508. 11. And the burden of proof, to show the coroner's authority, is upon the party who as- gpj-fg if Comm. v. Moore, (19 P.) 36 339. CORPOKATION, I, (1). 271 13. The levy of an execution, by. a coro- ner, cannot be objected to, on the ground that he has not given an official bond. ■, Comm. v. Fowler, lO 290; Naso'n v. Dillingham, 15 170; Bucknam » Rug- gles, 15 180; Comm. s. Shaw, (7 Met.) 48 52. 13. It is a coroner's duty to deliver to the true owner, on reasonable demand, personal property taken by him from a dead body; and if he refuses to do so, on the ground that it is his duty to deliver it to the decedent's adminis- trator, replevin will lie against him. Smiley v. Allen, (13 A.) 95 465. Corporation. I. Incorporation and Organization; Peoof THEREOF. (1.) Mode, sufficiency, and effect. (2.) Proof of; estoppel. (8.) Proof as affected by the pleadings. II. Creation of the Capital Stock. (1.) Subscription; action thereupon. (2.) Eights of subscribers. (3.) Sale for nonpayment of assessment. III. Stock; Stockholders: Members. (1.) General rules as to stock; lien of corpo- ration thereupon. (2.) Transfer of stock; liability of corporation thereupon. (3.) Dividends; new stock; special stock. (4.) Miscellaneous rulings relating to stock- holders and members. IV. Directors and Officers ; Election; Powers; general Liabilities and Disqualifications. (1.) Directors. (2.) President. (3.) Treasurer. (4.) Other officers, and miscellaneous rulings. V. Liability of Officers and Members for Corporation Debts. (1.) General rules. (2.) Liability under statutes. VI. Powers and Liabilities of Corpora- tions. (1.) Powers; ultra vires. (2.) How and by whom objection taken. (3.) General rules as to liability. (4.) Indictment. VII. Foreign Corporations. VIII. Actions and suits in Equity by and against Corporations. IX. Insolvency; Forfeiture; Dissolu- tion. X. Miscellaneous Rulings relating to particular Corporations. [See, also. Carrier; Conflict op In. ws, III. (6) ; Constitutional Law, II, (1); III, (4); LU (5), Con- tract; Equity Jurisdiction; Franchise; Joint Stock company; Mandamus: Mortgage, II, (1); Quo warranto; Taxation, II, (3); III; IX. Also the titles of the different kinds of corporations, such as Bank; Benevolent Association; Bridge; Church; College; Common Lands and general Fields; Ierry; Income; Insurance Company; Parish; Railroad; Heligious Association; Sav- ings Bank; School; Town; Turnpike-! I. Incorporation and Organization; Proof thereof. [As to the constitutional power of the legislature to alter or repeal the charter of a corporation, see Constitutional Law, II (1); III, (4).f (1.) Mode, sufficiency, and effect. [See, also, Bridge ; Franchise, and vost, IX.] 1. In common parlance.towns, cities, and other municipal organizations, although exercising corporate powers, are not known ' as corpora- tions, but rather as quasi corporations; and a statute, relating generally to corporations, will not include those organizations, unless the con- text shows that such was the legislative intent. Linehan v. Cambridge, 109 212. 2. As to the corporate quality of school dis- tricts, see G. 8., Ch. 39, § 2; P. S., Ch. 45, § 15; and Rumford School Dist. s. Wood, 13 193. Of counties, G. S., Ch. 17, § 1; P. S., Ch. 22, § 1; and Hampshire v. Franklin, 16 76. Of towns,. G. S., Ch. 18, § 1; P. S„ Ch. 27, §l;and Rumford School Dist. ■». Wood, 13 193. Of deacons, etc., of religious societies, and ministers, G. S., Ch. 31, §§ 1, 2, 3; P. S., Ch. 39, §§ 1, 2, 3. Weston ». Hunt, 2 500. 3. The charter of a private corporation is inoperative until accepted; and if several per- sons are incorporated, the charter does not bind one who has not assented, And an amendment to a charter must be accepted. Ellis 0. Marshall, 2 369; Riddle v. Merrimack Prop'rs, 7 169; Charles R. Bridge n. Warren Bridge, (7 P.) 24 344; Hamilton Ins. Co. v. Hobart, (2 G.) 68 543; Ladies' Collegiate Inst. «. French, (16 G.) 82 196. 4. If a charter includes those who afterwards associate, one who subscribes the articles after the incorporation becomes a member thereby, although he has not received a certificate. Chester Glass Co. v. Dewey, 16 94. 5. Aliter, where the statute does not include those thereafter becoming members. Lechmere Bk. i>. Boynton, (11 C.) 65 369. 6. A formal acceptance is not necessary; acts of acceptance will suffice. Charles R. Bridge v. Warren Bridge, (7 P.) 24 344; Russell-fl. McLellan, (14 P.) 31 63; Lexington, etc., Railroad v. Chandler, 03 Met.) 54 311; Bland- ford Trustees v. Gibbs, (2 C.) 56 39. 272 COEPOEATION, I, (1). 7. As to cases where an acceptance by the directors will suffice, see Eastern Kailroad v. Boston & M. Rail- road, 111 125. 8. Long acquiescence raises a presumption of of acceptance. Cobb v. Kingman, 15 197. 9. And long exercise of corporate powers will authorize the admission of oral evidence, of the existence and loss of a charter. Dillingham ». Snow, 5 547; Stock- bridge v. West Stockbridge, 12 400. 10. A legislative grant by a collective name, of powers which cannot be exercised except in a corporate capacity, is an implied grant of corporate powers protanto. So of a legisla- tive imposition of a duty. Stebbins v. Jennings, (10 P.) 27 172. 11. But a resolve of the executive council, establishing a company of artillery in a town "agreeably to military law," does not create a corporation. Shelton v. Banks, (10 G.) 76 401 12. The subsequent incorporation of associates to purchase and work a mine does not prevent the maintenance of a bill in equity against one of the associates by the others, for an account of his dealings in the purchase of the mine, he having deceived them as to the sum paid. Dole ». Wooldredge, 135 140. 13. Where it is shown that the preliminary steps for organization, required by the charter, were ta.cen de facto, and no defects appear in the subsequent proceedings for many years, it will be presumed that the first organization was held pursuant to such a call and notice as the charter requires. Middlesex Husbandmen v. Davis, (3 Met.) 44 133. 14. So proof of an attempt to form an organ- ization under the laws of another state, and transaction of business as a corporation de facto, will authorize a jury to find that the company was duly incorporated, where the fact is col- laterally in issue. Barrett v. Mead, (10 A.) 92 337. 15. So of the long exercise of a franchise con- ferred by a statute of this Commonwealth. Comm. v. Bakeman, 105 53. 18. And an action by a foreign corporation, otherwise duly incorporated, will not be defeated by its failure to file, before the transaction oc- curred, a certificate required by the foreign statute before commencing business, if the cer- tificate is filed before the action is commenced. Augur Steel A. Co. v. Whittier, 117 451. 17. The question, whether an act of incor- poration or its extension was obtained by false representations to the legislature, cannot be tried collaterally,- but only upon quo warranto. Charles River Bridge v. Warren Bridge, (7 P.) 24 344. 18. One whose vessel has used the canal of a corporation for many years, cannot, in an ac- tion to recover tolls, show that the canal was not constructed of the depth required by the charter. Quincy Canal v. Newcomb, (7 Met.) 48 276. 19. The incorporation of individuals, pre viously associated for a common purpose, does not transfer to the corporation the property, real or personal, or a right of action, of the associates without a conveyance or assignment. Leffingwell e. Elliott, (8 P.) 25 455. Holland v. Cruft, (3 G.) 69 16'i; Man* han v. Varnum, (11 G.V 77 405; Merrill e. Mclntire, (13 G.) 79 157. 20. Where the charter of a canal company provides that the corporation shall not begin the construction of its canal, or take lands therefor, until it has deposited with the treasurer of the Commonwealth a certain sum, as security for damages, a landowner cannot object that the deposit was made and accepted by the treasurer in United States bonds. Briggs ». Cape Cod Ship Canal Co., 137 71. 21. The laying out and filing by the coipora- tion of the location of its canal, under St. 1883, Ch. 259, is a taking of the lands included within the limits of the location, and it is not necessary that an application for the assessment of dam- ages should be made before the actual taking. Briggs «. Cape Cod Ship Canal Co., 137 71. 22. That P. S., Ch. 112, §S 85, 86, relating to railroads, do not apply to the Cape Cod Ship Canal Company, see Briggs 11. Cape Cod Ship Canal Co., 137 71. 23. The acceptance of a charter by the per- sons named therein, and their organization, pur- suant thereto, create them a corporation, and such corporation holds the franchise by which it is authorized to receive and enforce subscrip- tions to its capital stock; but until something further is done, it is not the corporation cor- templated by the charter, with the capital stoek specified therein. Katama Land Co. v. Holley, 129 540. See, also, under the general act, Hawes 9. Anglo Saxon Pet. Co., 101 385. 24. And where the capital stock was fixed in the charter at $50,000, with liberty to increase it to $150,000, and the sum of $100,000 having been subscribed, the subscribers proceeded to increase the capital at once to that sum, it was held, that the corporation was never legally or- ganized, and could not maintain an action to recover the subscriptions. Katama Land Co. v. Holley, 129 540. I See, also, post, II, (1). I 25. It is not a defence to an action by a mu- tual insurance company, that it met and chose officers before its charter went into effect, if those persons subsequently acted as such offi- cers, with, the assent of the corporators. Appleton Ins. Co. v. Jesser, (5 A.) 87 446. 26. Under G. S.. Ch. 61, § 8, the making of the certificate is not a condition precedent to the existence of the corporation, and the cor- poration cannot set up that defence. Merrick v. Reynolds Engine, etc., Co., IOI 381. ■ 27. So as to the certificate acquired by the St. 1851, Ch. 133, § 4, and as to the adoptionof the name of another corporation, as prohibited by § 6 of the same statute CORPORATION, I, (1), (2), (3). 273 Dooley v. Cheshire Glass Co., (15 G.) 81 494. 28. As to the sufficiency of the specification of the objects of the corporation, under the statute of 1851, see Bird e. Daggett, 97 4t»4. 29. The certificate required by the statute of 1851, may he filed before any of the capital stock is paid in. Boston Acid M. Co. v. Moring, (15 G.) 81 211. 30. And the giving of the treasurer's bond is not a condition precedent to the organization, or the right to sue. Boston Acid M. Co. 1>. Moring, (15 G.) 81 211. 31. The officers chosen at the first meeting may sign the certificate, under § 4 of the act of 1851. Boston Acid M. Co. v. Moring, (15 G.) 81 211. 32. Where a charter has been granted by the legislature, those elected and acting as officers incur the statutory liability for debts, although the call for the first meeting was not signed by a majority of the incorporators named, as re- quired by St. 1855, Ch. 140. Newcomb v. Reed, (12 A.) 94 362. 33. Where one only of three persons named as corporators in a charter, signed the call for the first meeting, and the others refused to sign it, and did not attend or otherwise participate in the organization, but made no objection to to the proceeding, or any claim to exercise the corporate powers, the organization is sufficient, except as against the Commonwealth. Walworth v. Brackett, 98 98. (2.) Proof of: estoppel. 34. Acts creating public corporations need not be proved, as the courts take judicial notice thereof; but acts creating private corporations and foreign acts of incorporation must be proved. Portsmouth Livery Co. v. Watson, lO [But now all acts of incorporation of this Common- wealth are public acts. G.S., Ch.3, §5; P.S.,Ch. 169, §68.1 35. A party who contracts with another as a corporation is estopped to deny its corporate existence. Worcester Med. Inst. v. Harding, (11 C.) 65 285. See, also, Narragansett Bk. v. Atlantic Silk Co., (3 Met.) 44 282; Farmers & Mechs. Bk. v. Jenks, (7 Met.) 48 592. 36. Qu. , whether the rule is not confined to a case where there is some evidence that the plaintiff is a corporation de facto. Provident Inst'n, etc., v. Burnham, 128 458. 37. Proof of a corporation de facto is required within the rule, if the plaintiff is a foreign cor- poration, or a national bank organized in another state. Williams v. Cheney, (3 G.) 69 215; Washington Co. Nat. Bk. v. Lee, 112 521 ; Merchts. Nat. Bk. v. Glendon Co. ,120 Vol. 1—35 97; Williamsburg Ins. Co. v. Frotbingham, 122 391; Butchers & D. Bk. v- McDonald, 130 264. 38. In an action by the indorsee of a note against the maker, who has been described by the payee by a corporate name, proof of the execution of the note is prima facie proof of the existence of the corporation. Topping v. Bickford, (4 A.) 86 120; Hungerford Nat. Bk. ». Van Nostrand, 106 559. 39. In an action by a manufacturing com- pany against a member, to recover a subscrip- tion, the defendant cannot object that the corporation has not been duly organized, where it was organized de facto, and transacted busi- ness several years. Chester Glass Co. «. Dewey, 16 94. 40. But in an action against the associates of a corporation under St. 1851, Ch. 133, to hold them individually liable for the debts of the corporation, it is necessary to prove the exist- ence of the corporation by articles of association complying with the statute. Utley v. Union Tool Co., (11 G.) 77 139. [See, also, pott, V.l 41. In a suit in equity against officers to en- force personal liability, where the corporation was organized under Gen. St., Ch. 61, the certifi- cates are conclusive against the defendants as to the corporate character of the association. Priest v. Essex Hat M. Co., 115 380. 42. In an action against a corporation organ- ized under a general act, its existence may be proved by the certificate of organization, and if the original is in the possession of the corpora- tion, or its assignees in bankruptcy, secondary evidence is admissible. Chamberlin v. Huguenot M. Co., 118 532. See, also, Thayer «. Middlesex Ins. Co., (10 P.) 27 326; Narragansett Bk. v. Atlantic Silk Co., (3 Met.) 44 282; Samuels v. Borrowscale, 104 207. 43. Where receivers of a foreign corporation, appointed in the foreign jurisdiction, claimed the funds attached by trustee process, after judgment for the plaintiff, and charging the trustee, and affirmance thereof, they cannot have a rehearing to show that a decree was made dissolving the corporation, which they had omitted to prove. Taylor v. Columbian Ins. Co., (14 A.) 96 353. 44. A corporation is estopped to deny the truth of its own certificate of organization. Dooley v. Cheshire Glass Co., (15 G.) 81 494. 45. And a member is so estopped as against the corporation. Hampshire «. Franklin, 16 87. (3.) Proof as affected by tbe pleadings. 46. St. 1881, Ch. 113; P. S., Ch. 167, §87, dispensing with proof of corporate existence, unless the party files a special demand therefor within ten days, etc., does not apply where an answer containing a general denial was filed, and ten days had elapsed before the passage of the statute. 274 CORPORATION, I, (3); II, (1). Goodwin Bedstead Co. v. Darling, 133 358. 47 Before the enactment of the statute of 1881, an answer denying each and every allega- tion, etc., would put a plaintiff corporation to proof of its corporate existence. Hungerford Nat. Bk. i>. Van Nostrand, 106 559- Mosler v. Potter, 121 89; Hebron Ch Deacons v. Smith, 121 90, note; Williamsburg Ins. Co. v. Frothing- ham 122 391; Goodwin Bedstead Co. ii. Darling, 133 358. 48 In an action before the act of 1881, against "The Adams Express Company," where the declarati )n alleged that the defendants were a " company having a place of business" in this Commonwealth, and the answer denied each and every allegation, etc., the plaintiff was bound to prove corporate existence, if the de- fendants denied it at the trial. Gott ».Adams Express Co., lOO 320. 49. Under the former statute, the plaintiff in an action against a religious society, acting many years as a corporation, was not bound to prove acceptance of its charter, unless its cor- porate existence was denied in the answer. Whitmore v. Plymouth Cong. Soc, (2 G.) 68 306. 50. And the incorporation of defendants, sued as a corporation, might have been denied aftp'- general appearance and affidavit of merits. Greenwood ». Lake Shore R. R., (10 G.) 76 373. 51 . Formerly nul tiel corporation might have been pleaded in bar as well as in abatement. Plymouth Christian Soc. «. Macomber, '3 Met) 44 235. [See, also, post, VIII.] II Creation of the Capital Stock. (1.) Subscription; action thereupon. I See, also, ante, I, (1).] 52 Where the constitution of a charitable cor- poration provides that any person applying for admission, and elected, may, after signing the constitution, vote, etc. , and that each member shall yearly pay a certain sum; signing the con- stitution is not a prerequisite to membership, and an action for the yearly dues lies against one who has acted as a member, although he has not signed. United Hebrew Ass'n *. Benshimol, 130 325. 53. The benefit of membership of a chari- table corporation, or other corporation not organized for profit, is a, sufficient considera- tion for the subscription cf each member to enable the corporation to recover the same. United Hebrew Ass'n «. Benshimol, 130 325. See, also, Middlesex Husband- men -o. Davis, (3 Met.) 44 133; Athol Mu^ic Hall v. Carey, 116 471; Cottage St. Church v Kendall, 121 528. [See, also, Contract II, (D.J 54. A subscription for shares, whereby the subscriber promised to pay to A, as agent of the corporation, or order, -will support an action by the corporation, but not by the agent. Gilmore i>. Pope, 5 491. 55. Qu., where the subscription is before the incorporation. People's Ferry v. Balch, (8 G.) 74 303. 56. A promise to pay into the funds of the company, as the president and directors may require, is a promise to the corporation, and will support an action by it, after assessment and demand. City Hotel v. Dickinson, (6 G.) 72 586. 57. A corporation, created under the statutes of 1804 and 1808, could not recover, by action or set off, an assessment upon a subscription for shares, without an express promise; but was confined to a sale of the shares for nonpay- ment. Andover Turnpike ». Gould, 6 40; Andover Turnpike v Hay, 7 102; New Bedford Turnpike v Adams, 8 138; Franklin Glass Co. ■» White, 14 286; Cutler v. Middlesex Factory, (14 P.) 31 483. 58. Such is still the rule, unless the statute gives a right of action; but an action lies upon an express promise to pay, although the corpo- ration has the power to sell the shares. Worcester Turnpike v. Willard, 5 80; Taunton & S. B. Turnpike ». Whiting, lO 327; Chester Glass Co. v. Dewey, 16 94; Salem Milldam v. Ropes, (6 P.) 23 23; Ripley e. Sampson, (10 P.) 27 371; Atlantic Cotton Mills a. Abbott, (9 0.) 63 423; City Hotel v. Dickinson, (6 G.) 72 586; Boston, B. & G. Railroad «. Wellington, 113 79; Mechanics' ¥, Co. v. Hall, 121 272; Kalama Land Co. v. Jernegan, 126 155. 59. An action by a railroad corporation, un- der R. S., Ch. 39, § 53, to recover the balance of an assessment after sale, is not brought upon the contract of subscription. Troy & G. Railroad v. Newton, (1 G.) 67 544; Amherst & B. Railroad v. Wat- son, (4 G.) 70 61. 60. Where the charter fixes the capital stock, or requires it to be divided into a certain num- ber of shares, an action to recover an assess- ment laid for general purposes, will not lie, unless the whole capital was subscribed before the assessment was made. Salem Milldam v. Ropes, (6 P.) 23 23; Newburyport Bridge v. Story, (6 P.) 23 45, note; Salem Milldam ». Ropes, (9 P.) 26 187; Stoneham Br. Railroad «. Gould, (2G.) 68 277. 61. But an assessment to defray preliminary expenses is valid, although the full amount is not subscribed. Salem Milldam®. Ropes, (6 P.) 23 23; Central Turnpike v. Valentine, (10 P.) 27 142. 62. An unauthorized subscription by one on account of another, cannot be included to make up the full amount. aa Salem Milldam . Swan, 10 384; Middlesex Turnpike t>. Walker, 10 390. 75. But where a railroad company, having filed a location, of which the first division termi- nated at a point in P., was empowered by statute to build its road in sections, and so built it; and afterwards filed a new location, not divided into sections, ,and not mentioning the point in P., this relocation did not discharge a previous sub- scriber. Boston, B., etc., Railroad ». Wellington, 113 79. See, also, Agricultural Br. Railroad «. Winchester, (13 A.) 95 29. 76. And if a railroad company's charter is made subject to amendment, a subsequent amendment, extending the time to complete the road, will not discharge a subscriber. Agricultural Br. Railroad ». Winche ter, (13 A.) 95 29. 77. Nor will a subscriber be discharged, if the charter is amended by reducing the capital re- quired to build the railroad, by the taking, by the company, of subscriptions smaller in amount than the capital originally allowed, but larger than that allowed by the amendment. Agricultural Er. Railroad «. Winchester, (13 A.) 95 29. 78. Or because the company has commenced to build, before the proportion required for that purpose by the charter has been paid in Agricultural Br. Railroad v. Winchester, (13 A.) 95 29. 79. A contract between associates, to pay two of their number a certain sum per share for the construction of a telegraph line, in consideration of which those two agreed ' ' to convey in fee simple " the telegraph line, etc , without stating to whom, renders a subscriber liable to the two named, where, upon completion, they conveyed to a corporation created by the incorporation of the associates, although without express assent of the subscriber sued. Brewer «. Stone, (11 G.) 77 228 80. A subscriber, who has given his note for his subscription, cannot defend an action upon it, on the ground that the corporation is re- quired by its charter to invest its stock in cer- tain specified funds. Little v. Obrien, 9 423. 81. Nor is it a defence to an action for a sub- scription, that the corporation was chartered to , 276 COEPOEATION, II, (2), (3); III, (1). trail i a hotel, and part of the building is occu- pied for shops City Hotel v. Dickinson, (6 G.) 72 586. 82 Or that the committee erroneously exag- gerated the extent of the water power, that could be created by a corporation organized for that purpose. Salem Milldam v. Ropes, (9 P.) 26 187. (2.) Rights of subscribers. [See, also, post, III, (3).] 83. Where a railroad company agrees, as part of the subscription, that assessments shall bear interest, until the road goes into operation, the interest is not payable until the road goes into operation. Waterman «. Troy & G. Railroad, (8 6.) 74 433. See, also, Wright *. Vermont & M. Railroad, (12 C.) 66 68. 84. An 1 a vote of the directors, stopping in- terest after a certain day, does not create a present debt to the subscriber, on which he can maintain an action. Wright «. Vermont & M. Railroad, (12C.) 66 68. 85. Where the corporation has voted to pay interest at a future day, with a condition that if there is not then enough money in the treasury to pay it in full, it shall be paid pro rata, the subscribers can recover only upon proof of sufficient funds in the treasury, having regard to contingencies for outlays; and the court, not the directors, is to determine that question. Barnard v. Vermont &M. Railroad, (7 A.) 89 512. See, also, Cunningham ». Vermont &M. Railroad, (12G.) 78 411. 86 Where, by the terms of the subscription, it is recommended that interest be paid on pay- ments for stock, a subscriber cannot resist pay- ment of his subscription, on the ground that interest has been paid. Agricultural Br. Railroad v. Winchester, (13 A.) 95 29. 87. Where a subscriber to articles of associa- tion, prenared to form a corporation under the G. S., fails to perform his part of the subscrip- tion, he cannot maintain against the corporation, after it is formed, for a refusal to deliver him the shares, upon tender of payment; although his name is entered in the subscription book, and he has been requested to pay his subscrip- tion, and the shares were afterwards allowed to be taken by another, without selling them under the statute. Perkins v. Union Button Hole Co. , (12 A.) 94 273. See, also, Field v. Pierce, 102 253. (3.) Sale for nonpayment of assessment. 88. Where the statute prescribes the terms and the mode of selling shares for nonpayment of assessments, and provides that the subscriber is liable for the deficiency, a strict compliance therewith is a condition precedent, without which the subscriber is not liable. Portland, etc., Railroad v. Graham, (11 Met.) 52 1; Lexington, etc., Railroad v. Staples, (5 G.) 7 1 520. 89. But a by-law of the corporation, requir- ing the treasurer to give notice to the delin- quent in a certain manner, is directory merely; and a notice given in another manner, effect- ing substantially the purpose, suffices. Lexington, etc., Railroad v. Chandler (13 Met.), 54 311. 90. Where, upon a subscriber failing to pay an assessment, the company, without formally declaring the shares forfeited, took subscrip- tions from others, to the full amount of its capi- tal, it could not, under the G. S. , sell the shares, and sue the subscriber for the deficiency. Athol, etc., Railroad v. Prescott, 110 213. 91. A sale under the statute for nonpayment of two or more assessments is void, if one of the assessments is illegal, because prematurely made. Stoneham Br. Railroad v. Gould, (2 G.) 68 277. III. Stock; Stockholders; Members. (1.) General rules as to stock; Hen ol corporation thereupon. 92. Shares in a corporation are not chattels personal, susceptible of possession; if not choses in action, they are in the nature of choses in action. The certificate is not the stock, and the corporation cannot affect the stockholder's rights by withholding it. Chester Glass Co. ■». Dewey, 16 94; Ellis v. Essex Bridge Prop'rs, (2 P.) 19 243; Hutchins v. State Bk., (12 Met.) 53 421 ; Fisher v. Essex Bk. , (5 G.) 71 373; Field v. Pierce, 102 253. 93. Accordingly, where one agrees to give another certain shares in a corporation to be organized, and the corporation wrongfully with- holds the certificate, the remedy is against the corporation, not the promisor. Field v. Pierce, 102 253. ! 94. An action to recover the value of shares, (and interest from demand, lies in favor of the (owner against a corporation, which refuses to deliver to him a certificate therefor, and wrong- fully sells the shares to another, or otherwise converts them to his own use; and the action may be either of contract or of tort. Hussey v. Manufacturers, etc., Bk., (10 P.) 27 415; Wymanfl. American Pow- der Co., (8 C.) 62 168. See, also, Gray v. Portland Bk., 3 364; Sargent ». Franklin Ins. Co., (8 P.) 25 90. 95. A bill in equity to compel the issuing of a certificate, will lie against the corporation. Sewall «. Boston W. P. Co., (4 A.) 8b 277; Pratt v. Taunton Copper Co., ljo 110; Sibley v. Quinsigamond Nat. Bk., 133 515. (.See, also, post, III, (2).l 96. A certificate of stock, expressed upon its face to be transferable only upon the hooks ot the corporation, and transferred in blank upon the back, is not a negotiable instrument. Shaw v. Spencer, 100 382. See, Sewall v. Boston Water Power Co., (4 &■} 86 277. CORPORATION, III, (1), (2). 277 97. In the absence of any provision in the charter or otherwise, a corporation has no lien upon the shares of one of its members, for the payment of a debt, or the performance of a con- Sargent ». Franklin Ins. Co., (8 P.) 25 90 Massachusetts Iron Go. -u. Hooper, (7 C.) 61 183. 98. But a lien, given by the law of the state where a foreign corporation is situated, is recog- nized here; and it is not waived by a promise, without consideration, to issue a new certificate to the transferee. Bishop*). Globe Co., 135 132. (2.) Transfer of stock; liability of cor- poration thereupon. [See, also, Attachment, I, (4).l 99. The purchaser of stock is entitled, upon surrender of the seller's certificate, with power of attorney, to have the same transferred upon the books of the corporation, and to a new cer- tificate therefor. A seal is not necessary. Quiner 0. Marblehead Ins. Co., 10 476; Sargent «. Franklin Ins. Co., (8 P.) 25 90. 100. If a trustee under a will, on demanding a transfer of stock standing in the name of the testator, presents to the corporation certified copies of the will, and of his appointment as trustee, the corporation has no right to require that such copies shall remain in its custody. Bird v. Chicago, I. & N. Railroad, 137 433. , [See, ante, II, (1), and h. 1870, Ch. 324, S 26; P. S., Ch. 106, 8 30.1 101 . An action for damages, or a bill of equity to compel a transfer and the issuing of a new certificate, will lie in favor of the purchaser against the corporation. Sargent v. Franklin Ins. Co., (8 P.) 25 90; Bond 0. Mount Hope Iron Co., 99 505. 102. And if the corporation unreasonably re- fuses to examine the evidence, upon which the party bases his right to require the transfer, it will be charged with the costs upon a decree. Iasigi v. Chicago, B. & Q. Railroad, 129 46. 103. A by-law of the corporation, requiring transfers to be made only at its office, and with the consent of the presidents void, as unreason- able. Sargent «. Franklin Ins. Co., (8 P.) 25 90. 104. A regulation of the corporation, either in its by-laws or upon the certificate, requiring shares to be transferred upon its books, is for convenience of the corp'oration; and an assign- ment, without such transfer, is valid between the parties, or against an assignee in bankruptcy of the seller. Quiner i>. Marblehead Ins. Co., 10 476; Sargent v. Franklin Ins. Co., (8 P.) 25 90; Sargent 0. Essex M. Railway, (9 P.) 26 202; Eames 0. Wheeler, (19 P.) 36 442; Brown 0. Smith, 122 589; Dickinson v. Central Nat. Bk. , 129 279. 105. And any action by the corporation, after notice, to the prejudice of the assignee, is void as to him. Nesmith 0. Washington Bk. 324. (6 P.) 23 106. But where the charter, or some other sta- tute, requires an actual transfer upon the books of the corporation, such an assignment will not pass title, as against an attaching creditor of the seller, without such a transfer, or at least notice of the sale. Fisher 0. Essex Bk., (5 G.) 71 373; Boyd ®. Rockport S. C. Mills, (7 G.) 73 406; Blanchard i>. Dedham G. L. Co., (12 G.) 78 313. 107. In the absence of such a statutory pro- vision, a sale of stock, without a transfer upon the books, is valid against a subsequent attach- ing creditor of the seller. Boston Music Hall 0. Cory, 129 435. And see Dickinson 0. Central Nat. Bk., 129 279. 108. Semble, also, that if the assignee presents the certificate and power of attorney, and the corporation refuses to permit the transfer to be made, a subsequent attaching creditor will not hold. Plymouth Bk. 0. Norfolk Bk., (10 P.) 27 454. 109. An assignment of stock to two, with a power of attorney to one to make the transfer, is good. Plymouth Bk. 0. Norfolk Bk., (10 P.) 27 454. 110. Where the proper officer certified upon the deed of a purchaser of shares that it was duly recorded, where it was not, a subsequent purchaser, whose deed was first recorded, took "Drof GrcncG . Hastings v. Blue Hill Turnpike, (9 P.) 26 80. 111. One who takes, in good faith and for a valuable consideration, a transfer of shares, is not bound to examine the books, or look beyond his certificate, to ascertain the validity of former assignments. Salisbury Mills u.Townsend, 109 115. -12. Leaving the certificate with the proper officer to be recorded is a sufficient transfer to pass the title, although a new certificate is not given. Ellis v. Essex M. Bridge, (2 P.) 19 243. 113. Where A sold to B certain shares of stock, received his check, and transferred the stock on the books, the title vested in B, al- though no new certificate was issued, and B's check for the price was not paid by the bank, for certain independent frauds, there being, however, no fraud in the transaction with A. Comins 0. Coe, 117 45. 114. If a part only of A's stock is sold to B, and he, having one certificate, indorses thereon a power of attorney to transfer the shares sold, and the power is fraudulently altered, so as to authorize a transfer of all the shares, and the corporation negligently permits that to be done, and issues new certificates for the whole, the corporation is liable to A. Sewall 0. Boston W. P. Co., (4 A.) 86 277. 115. A wrongful refusal to allow a transfer and give new certificates, where the corporatioji, 278 COEPOEATION, III, (2), (3). in its president's name, holds the stock as col- lateral security for a debt, which has been paid, is a conversion of the stock, and renders the corporation liable for its value. Bond v. Mount Hope Iron Co. , 99 505. 116. See, further, as to the effect of a transfer of stock, which is subject to an agreement that the corporation should hold the stock as col- lateral security for a debt of the stockholder, Hussey v. Manufacturers, etc., Bk., (10 P.) 27 415. 117. Where a corporation, upon presentation of a certificate for shares, with the forged signa- ture of the shareholder appended thereto, per- mits a transfer of the shares upon the books, and issues a new certificate, which passes to an innocent purchas?r for value, who procures a new certificate, the corporation may be re- quired, by bill in equity, to issue a certifi- cate to the true owner, although the effect is to increase its capital stock. Pratt v. Taunton Copper Co., 123 110; Pratt v. Machinists' Nat. Bank, 123 110; Boston & A. Railroad ». Richardson, 135 473. 118. But no decree, in such a case, can be made against the broker or the purchaser, and the latter's title is perfect. Pratt i>. Taunton Copper Co., 123 110; Machinists' Nat. Bk. e. Field, 126 345. See, also, Sewall v. Boston W. P. Co., (4 A.) 86 277; Salisbury Mills «. Townsend, 109 115. 119. In such a case, the corporation may maintain an action against the person, who pre- sented the forged power of attorney, although he acted in good faith. Boston & A. Railroad ». Richardson, 135 473. 121. Where a corporation issues a cer- tificate of stock to A as trustee, and has notice of the name of the cestui que trust, and on A's wrongfully transferring the certificate, issues a new one without inquiry, it is liable to the true owner, without proof of its fraud or collusion. Loring v. Salisbury Mills, 125 138. 121. For other rulings as to the rights of transferees of stock, and the liabilities of the corporation to them, see Thayer v. Stearns, (1 P.) 18 109; Oakesa. Hill, (14 P.) 31 442; Bond®. Mount Hope I. Co., 99 505; Shaw «. Spencer, 100 382; Crocker v. Old Colony Railroad, 137 417; Newell v. Williston, 138 240; Central Nat. Bk. ». Williston, 138 244. 122. One who sells shares of stock in a cor- poration which has not yet issued certificates, and .agrees to give Ihe purchaser a certificate, when he receives it, is not bound to deliver the certificate without payment by the purchaser of an assessment subsequently made on the shares. Brigham v. Mead, (10 A.) 92 245. 123. Where the by-laws of a corporation re- quire a transfer of stock to be under seal, a transfer, signed by the stockholder, with the word " seal " in brackets, is of no effect. Bishop v. Globe Company, 135 132. C3.) Dividends ; new stock ; special stock. [As to interest on subscriptions, see ante, II, (l); II, (2). As to whether a dividend paid to a stockholder is capital or income in his hands, see Income, arte. 11 to 17.1 124. Where a banking corporation, having by its charter the right of, creating stock not leas than a certain amount, and not greater than another amount, commences business with the smaller capital, and afterwards increases it to the larger, a holder of shares in the original stock has a right to his pro rata of the increase, and may recover damages for a deprivation thereof. Gray v. Portland Bk, 3 364; "Wyman ■o. American Powder Co., (8 C.) 62 168. 125. Where a corporation, increasing its capital stock, offers to each of its stockholders hii pro rata of the new stock, on certain terms as to acceptance and payment, one who accepts as prescribed, but fails to pay the first instal- ment, cannot, upon tender, maintain an action against the corporation for selling the shaves subscribed for, as stock not taken. Sewall*. Eastern Railroad, (9 C.) 63 5. 126. The provisions of the R. S., as to the mode of selling shares for nonpayment of assessments, do not apply to such a subscrip- tion. Sewall'». Eastern Railroad, (9 C.) 63 5. 127. Where a corporation issued its notes, convertible into stock at par, and before the time fixed for that purpose voted to increase its stock, there being, at the time the notes were issued, enough stock under its control to con- vert all the notes, it was held that the note- holders were not entitled to the benefit of the additional stock. Pratt v. American B. Telephone Co., 141 225. 128. A certificate of shares of the guarantied stock of a corporation, declaring that dividends at a certain rate are to be paid out of the net earnings, does not constitute the holder a credi- tor of the corporation, so as to enable him to maintain an action at law to recover the stipu- lated dividends, although the certificate also declares that the payment of such dividends is guarantied. Williston v. Michigan Southern, etc., Railroad, (13 A.) 95 400. 129. Where a corporation settled a debt by the issuing of special stock, under St. 1855, Ch. 290, redeemable at a specified time, and entitled to half yearly dividends, and made a separate agreement to redeem . the stock and guar- anty the payment, to which its president became individually a party; and afterwards the creditor received one dividend, and notes ot the corporation, indorsed by the president, for others; and the corporation and the president within the time, went into insolvency, the credi- tor could not prove anything but the notes against the estate of either. Allen ii. Herrick, (15 G.) 81 274. 130. For the construction of a special statute (St. 1855, Ch. 143), which the court ruled to contemplate an absolute guaranty of dividends COEPORATION, III, (3), (4). 279 upon preferred stock, not dependent upon earning profits, see Williams v. Parker, 136 204. 181. As to the effect upon each other of St. 1870, Ch. 179; St. 1871, Oh. 392; St. 1874, Ch. 372, and St. 1877, Ch. 230, respecting the in- crease of capital stock, tbe rights of stockhold- ers to take the increased stock, and the sale of shares not taken, see Mason v. Davol Mills, 132 76. 132. An action for dividends declared lies by a stockholder against the corporation, although he has no certificate; but not against the treas- urer. Ellis v. Essex M. Bridge, (2 P.) 19 243; French v. Puller, (23 P.) 40 108. 133. Although a corporation has no lien upon the shares of a member for debts due to it, it may withhold its dividends to pay such a debt. Sargent v. Franklin Ins. Co. , (8 P. ) 25 90. 134. As to the difference between special stock and preferred stock, and the characteris- tics of both, see American Tube Works v. Boston Machine Co., 139 5. 135. A vote of a corporation to issue special stock, at a meeting called under St. 1870, Ch. 224, 8 25, to consider whether it will issue pre- ferred stock, is Invalid. American Tube Works v. Boston Machine Co., 139 5. 136. A vote to issue special stock at a meeting held under P. S., Ch. 106, § 42, is invalid, unless the record shows that it was voted for by three fourths of the stockholders. American Tube "Works v. Boston Machine Co., 139 5. 137. As to the rights of the holder of special stock illegally issued, and the liabilities of the corporation respecting the same, see American Tube Works v. Boston Machine Co., 139 5, Reed s. Boston Machine Co., 141 454. *.- (4.) miscellaneous rulings relating to stockholders and members. 138. Where a stockholder transfers his shares to the corporation , by a writing absolute in form, but in fact as collateral security for a note, and surrenders his certificate, delivering at the same time an agreement, that if he failed to pay the note, the bank might sell, etc., and pays interest and receives dividends after the note is due, he continues to be a member. Merchants' Bank v. Cook, (4 P.) 21 405. _ 139. Where the by-laws of a building associa- tion provide, that if a member wishes to with- draw, he may do so on giving a year's notice, and the company will refund his payments, on his surrendering his certificate, no action lies for the payments in favor of a withdrawing member, until the expiration of a year after he has given notice. Hartford v. Co-operative H. Co., 128 494. 140. If an incorporated benevolent society re- fuses to pay a member the weekly allowance, provided for in the by-laws in case of his sick- ness, he may maintain an action therefor, if there is no provision in the by-laws for the de- cision of questions which may arise; an 1 a sub- stantial compliance with the provisions as to physician's certificate, etc., will suffice. Dolan i>. Court Good Samaritan, 128 437. 141. The right to vote, at meetings of the stockholders of a corporation, upon shares held on a trust for the benefit of the corporation, is suspended while they are so held. American Railway F. Co. v. Haven, 101 398. 142. A meeting of, a mutual fire insurance company, called for the purpose of making alterations in the by laws, and " for such other business, etc," cannot, after voting to increase the number of directors, proceed to elect the additional directors. People's Ins. Co. «. Westcott, (14 G ) 80 440. 143. A vote of a corporation, which affects the liability of some of the members who are its debtor. , cannot be regarded as assented to by them, if they were not present, although they had notice of the meeting. American Bk. v. Baker, (4 Met.) 45 164. 144. A by-law of a corporation, which pro- vides for calling a meeting of members by the president or secretary, on the application of ten members, does not prevent the directors from calling such a meeting. Citizens' Ins. Co. v. Sortwell, (8 A.) 90 217. 145. Meetings of members must be called by personal notice to each, unless the charter or by-laws otherwise provide. Wiggin s. Lowell Bapt. Ch., (8 Met.) 49 301. 146. But if one is imbecile, etc , he need not be notified. Stebbins v. Merritt, (10 C ) 64 27. 147. The general agent may call a meeting, unless the charter or by-laws otherwise pro- vide. Stebbins «. Merritt, (10 C.) 64 27. 148. It is not necessary that the moderator should be a stockholder. Stebbins v. Merritt, (10 C.) 64 27. 149. If the record shows that the meeting was duly called and transacted business, the pre- sumption is that a quorum was present. Citizens' Ins. Co. 11. Sortwell, (8 A.) OO 217. [For other rulings respecting meetings, see ante, I, 1); and the titles of particular corporations.] 150. One or more stockholders cannot main- tain an action at law against the direc tors for mismanagement, etc. Smith v. Hurd, (12 Met.) 53 371. 151. But an action lies in equity, by one or more stockholders, in behalf of themselves and the others, against the corporation and the di- rectors, and, if the case requires, against third persons, for fraud, conspiracy, neglect, or other misconduct, whereby the value of their stock has been injured: but as against third persons, 280 COEPOEATION, IV, (1). the bill must show that an effort has been made to procure the corporation to bring such an ac- tion, or that such an effort would be useless; and for that purpose, it is not enough to allege, that the majority of the directors are acting in concert with those charged with the fraud. Brewer s. Boston Theatre, 104 378. See, also, Abbott v Merriam, (8 C.) 62 588; Peabody v. Flint, (6 A.) 88 52; Ward v. Salem St. Railway, 108 332. ISee, also, post, IV, (1).] 152. But not for acts sanctioned by the legis- lature, and a majority of the stockholders. Durfee ». Old Colony, etc., Railroad, (5 A.) 87 230. 153. And where a corporation brings a suit in equity to set aside its own acts, for the fraud or other misconduct of its officers, the right of action rests upon the equity of the stockholders. Union Pacific Railroad v Credit Mobi- lier, 135 367. IV. Directors and Officers ; Election, , Powers; general Liabilities and Disqualifications. [As to official bonds, see Bond, III, (2). As to the assumed and illegal exercise of corporate offices, see Mandamus, I; Quo Warranto. Generally, s-e, also, the titles of particular corporations, and post, (1.) Directors. [As to their liability for the corporation debts, see post, V, &).-[ 154. Redress, in case of assumed and illegal exercise of office, must be obtained by quo warranto or mandamus; and where, upon a bill in equity, the court determines upon the right of certain trustees, under a mortgage of a cor- poration, to vote at an election for directors, upon certificates of indebtedness, held by them for a sinking fund, it will not go further and determine who is elected, if it is necessary to pass upon the validity of other votes. New England M. Ins. Co. v. Phillips, 141 535. 155. "Where part only of the directors attend a meeting of the board, and transact business thereat, the presumption is that the absent directors had not'ee. Sargent v. "Webster, (13 Met.) 54 497. 156. It is not necessary to the regularity of the proceedings that the president should attend. Sargent v. "Webster, (13 Met.) 54 497. 157. A majority constitute a quorum, and a majority of the quorum may act. Sargent v. Webster, (13 Met.) 54 497. 158. Unless the charter or a by-law of the corporation, or some general act of the legisla- ture, requires a director to be a stockholder, oue who is not a stockholder may be elected and act as such. Wight v. Springfield, etc., Railroad, 117 226. 159. The presence at a directors' meeting of a person elected director, and his making a motion thereat, are presumptive, but not con- clusive evidence of his acceptance. Blake v. Bayley, (16 G.) 82 531. 160. The directors may authorize an offlcei to raise money for his own use on the com pany's note, as an advance or payment of wages and such an authority will include a bill of exchange. Tripp *. Swanzey P. Co., (13 P ) 30 291. 161. The directors may, in behalf of the cor- poration, borrow money, issue bonds, and mort- gage, purchase, or sell real or personal property, within the power of the corporation so to do' unless otherwise restricted by the charter or by-laws. Hendee v. Pinkerton, (14 A.) 96 381; Eastern Railroad «. Boston & M. Railroad 111 125. 162. A contract between a corporation and its directors is not void, but voidable at the elec- tion of the corporation, and the right to avoid it may be waived; or it may be ratified by the stockholders, with knowledge of the facts, al- though in ignorance of the legal effect of such facts. Kelley ». Newburyport, etc., Horse Rail- road, 141 496. 163. Where the corporation is insolvent, the directors may sell all its property to a new corporation, and take shares in payment. Treadwell v. Salisbury M. Co., (7 G ) 73 393. 164. Or convey all the property to one who is liable as indorser, or to a creditor, on condi- tion that he shall apply the proceeds to his de- mand, and pay over the balance. Sargent v. Webster, (13 Met.) 54 497. 165. The trustees of a monument company have power to bind the company by a promis- sory note, and to create one debt to pay another. Hayward ». Pilgrim Society, (21 P.) 38 270. 166. The trustees of an academy may take subscriptions to found an institution, in connec- tion with the academy, for classical, etc., educa- tion, "with the sole view to the Christian ministry," and may transfer promissory notes thus received to the institution so formed. Amherst Academy v. Cowls, (6 P.) 23 427. 167. The directors may ratify an unauthor- ized act of an officer; and evidence of acqui- escence and recognition thereof by them is sufficient to go to the jury, without any sub- stantive act, upon the question of ratification. St. James Parish v. Newburyport H. Railroad, 141 500. 168. Where the trustees of a medical college are authorized to confer honorary degrees, and no mode of doing so is specially indicated, their vote to confer suffices, and an authenticated copy thereof is sufficient proof. Wright v. Lanckton, (19 P.) 36 288. 169. A bill in equity lies, in favor of a cred- itor of a mutual insurance company, against the president and directors, to compel them to pay a loss, for which purpose they had funds, which they had fraudulently applied otherwise; but the company is a necessary party to such a bill. Lyman v. Bonney, 101 562. COEPOEATION, IV, (2), (3). 281 170. A bill lies by a judgment creditor, against the directors of a company, for gross negligence or other misconduct, whereby his debt was lost; but it cannot be maintained if they acted in good faith and legally, although with want of correct judgment. Lyman v. Bonney, 118 223. 171. Where the directors of a ferry company bought a steamboat from another company, of which they were directors and the only stock- holders, and resold it to the ferry company at an advance, the profits may be recovered from them in equity by the company, or a receiver thereof; and they cannot charge, as part of the cost, their expenses in obtaining the charter, etc., of the other company. Parker v. Nickerson, 112 195. (2.) President. [For rulings as to the president's compensation, see Bank, IV. (2); Contract, I, (1); Insurance Company, art. 94.1 172. The president alone may be authorized by the directors to sign for the company, al- though the charter provides that contracts may be signed by the president and secretary; and a formal vote is not necessary for that purpose. Topping v. Bickford, (4 A.) 86 120. 173. Nor is a formal vote necessary to au- thorize the president to execute a mortgage for the company; the knowledge and concurrence of the directors, or their subsequent and long continued acquiescence, suffices. Sherman v. Pitch, 98 59; See, also, Emerson v. Providence, etc., Co., 12 237; Melledge v. Boston I. Co., (5 C.) 59 158; Lester «. Webb, (1 A.) 83 34. 174. So as to a contract for machinery, where the machinery had been received and used by the company. Narragansett Bk. v. Atlantic Silk Co., (3 Met.)" 44 282. 175. In the absence of any express or im- plied general authority, the discharge of record by the president of two mortgages to the cor- poration, of which the directors had authorized him to discharge one only, is void as to the other. Smith v. Smith, 117 72. 176. The president of a manufacturing com pany has no authority, by virtue of his office, to commence an action for the corporation Ashuelot Man. Co i> Marsh, (1 C.) 55 507. 177. A mortgage of all the personal property of a manufacturing corporation, given by the president and treasurer, to secure a pre-existing debt, without authority from the directors, is void, although he was also the general manager, and owned all but two shares of the stock. England v. Dearborn, 141 590. LSee, also, post, IV, (3),1 (3.) Treasurer. 178. In an action against a manufacturing corporation, on a bill of exchange, accepted by A, as treasurer, upon the testimony of a witness that he had seen the records, and that it ap- peared therein that A was chosen treasurer, the Vol. 1—36 jury may infer thai he was duly elected, and authorized to accept the bill. Narragansett Bk. «. Atlantic Silk Co., (3 Met.) 44 282. 179. The treasurer of a corporation is not liable to a stockholder, for the dividends declared on his shares, although he has funds to pay them. French v. Fuller, (23 P.) 40 108. 180. Where the treasurer is suffered by the directors to draw and accept drafts, indorse notes and the like, the corporation will be bound by his acts in so doing. Lester v. Webb, (1 A.) 83 34. 181. The treasurer of a manufacturing cor- poration has no authority to release the corpo- ration's claim for a loss, under a policy of insur- ance obtained by him. E. Carver Co. «, Manufrs Ins. Co., (6 G.) 72 214. 182. The treasurer of a savings bank is in- dictable for embezzlement of the bank's prop- erty. Comm. •». Pratt, 137 98. 183. The treasurer of a savings bank has no authority, by virtue of his office, to transfer to a purchaser a promissory note or mortgage of the bank. Holden v. Upton, 134 177; Holden v. Phelps, 135 61. i 184. And where he has express authority to transfer the same, he has no power to bind the bank by a guaranty. Comm. it. Reading Sav. Bk. , 137 431 . 185. The fact, that by the assent and under the direction of the investment committee, he had assigned other mortgages relating to other estates, is not, even if the fact was known to the assignee, sufficient to give him a general authority to assign mortgages. Holden v. Phelps, 135 61. 186. Nor has he authority to release a debt of the bank, upon receiving a dividend from the debtor. / Dedham Sav. Inst. v. Slack, (6 C.) 60 408. 187. Nor will the subsequent receipt of divid- ends to the treasurer's successor, indorsed upon the note and entered in the books, or the sub- sequent examination of the treasurer's accounts, books, and papers, and the passing thereof _ as correct by a committee, amount to a ratification of til© rGlGtlSG Dedham Sav. Inst'n . Carey, 116 471. 200. Where the treasurer is authorized to give the corporation's note in payment of a debt, he may do so after the lapse of several years, the statute of limitations not having run. Hayward v. Pilgrim Soc, (21 P.) 38 270. 201. And the original minutes of the proceed- ings of the trustees, kept by one of their num- ber, who has since died, are competent evidence of such authority. Hayward v. Pilgrim Soc, (21 P.) 38 270. 202. The treasurer of a corporation, who refuses to disclose the amount for which he has sold a bond, is liable for its full market value; and the receivers of the corporation are not concluded by the acceptance by the directors of his fictitious entries. Parker ■». Nickerson, 137 487. C4.) Otber officers, and miscellaneous rulings. [As to agents in particular employments, see Agency, I, (2).l 203. A defendant sued by a corporation, by direction of its officers de facto, cannot defend upon the ground that such officers were not duly elected. Granville Ch. Ass'n «. Baldwin, (1 Met ) 42 359. 204. Evidence that the indorsement of a note in the name of the corporation, by the secretary, was made with the knowledge and consent of the directors, will authorize a jury to infer that the secretary had authority. Williams «. Cheney, (3 G.) 69 215. 205. Where the laws provide that the clerk shall be chosen annually, and shall continue in office until his successor is chosen and qualifies, if the clerk is re-elected, he holds under the first election, until he qualifies anew. Hastings t>. Blue Hill Turnpike, (9 P.) 26 80. 206. Where the agent of a manufacturing cor- poration is empowered by its by-laws to manage its affairs, and promptly to collect all assess- ments, and disburse them according to the order CORPORATION, IV, (4); V, (1), (2). 283 of the board of directors, he may, if the board does not interfere, employ and pay workmen, or, if not in funds, give the corporation's notes for that purpose. Bates v. Keith Iron Co., (7 Met.) 48 224. 207. Those who deal with a manufacturing and trading corporation, are not bound by speci- fically enumerated powers of the officers in the by-laws, but as to them, such officers are pre- sumed to have the authority, which their desig- nations ordinarily imply. Pay.®. Noble, (12 C.) 66 1. [See, also, this case cited, a>,te, art. 198.1 208. One who is a stockholder and director, and an overseer of part of the business of the corporation, has not thereby authority to bind the corporation to a contract to aid in the exten- sion of a railroad. New Haven & N. Co. v. Hayden, 107 525. 209. An officer may lawfully sell property to the corporation, at a higher price than he paid for it. if it was not purchased in the course of his official duty. Parker v. Nickerson, 137 487. 210. As to a special contract for salary as superintendent of a railroad, see Nashua & L. Railroad v. Paige, 135 145. 211. As to the validity of a special contract, whereby an employee deposited money to abide the decision of the president as to his fidelity, etc., see "White v. Middlesex Railroad, 135 216; cited, Contract, art. 200. 212. A corporation is not bound, as to third persons, by interpolations fraudulently inserted in its records, giving power to an officer, unless such third persons have known and acted upon such records. Holden «. Hoyt, 134 181; see, also, Amherst Bk. v. Root, (2 Met.) 43 521; Comm. v. Reading Sav. Bk., 137 431. 213. An officer is not entitled to compensa- tion for indorsing the notes of the corporation, in the absence of a special agreement. Parker v. Nickerson, 137 487. V. Liability of Officers and Members for Corporation Debts. , ,X See aiso ' Bank, I, (2); Insurance Company, II, III;andpo»«, VII.] (1.) General rales. 214. There is no liability for corporation debts upon a member or officer, unless it is created by statute, and a statute creating it must be strictly construed. Stedman v. Eveleth, (6 Met.) 47 114; Andover Free Schools v. Flint, (13 Met.) 54 539; Gray v. Coffin, (9 C) 63 192. ■ 215. A by-law will not suffice for that pur- pose, unless the member signs it, and money is lent upon the credit thereof. Andover Free Schools 1). Flint, (13 Met.) 54 539; Flint «. Pierce, 99 68. 216. Where such a liability exists, it extends to contracts made in another state, as if they were made here. Hutchins v. New England C. M. Co., (4 A.) 86 580. 217. Where the members of a corporation personally undertake they are personally liable. Tileston v. Newell, 13 406. 218. Where copartners are incorporated, but, in accordance with a by-law, the business is still carried on in the copartnership name, they are individually liable to one who has no notice of the dissolution. Goddard «. Pratt, (16 P.) 33 412. 219. An execution against ' ' the president, directors and company " of a corporation, com- manding the officer to take their bodies, does not protect him fi r the arrest of a member. Nichols «. Thomas, 4 232. 220. Where persons sign articles of associa- tion to form a corporation, under the act of 1866, and some subscribe and take certificates, and others do not, but the association fails to become a corporation, none of the subscribers are liable, as partners, to a bill for an account- ing, etc., by two, who, as president and secre- tary, have transacted business for the inchoate corporation, and thus made themselves liable as principals. Ward «. Brigham, 127 24. See, also, Fay v. Noble, (7 C.) 61 188; Trow- bridge v. Scudder, (11 C.) 65 83- First Nat. Bk. of Salem v. Almy, 117 476. 221. In this Commonwealth, the individual property of the inhabitants of a town, school district, or territorial parish, is liable to be taken upon a judgment against the quasi corporation; but the rule does not extend to ai incorporated poll-parish, i. e., a parish having no territorial limits. Richardson v. Butterfield, (6 C) 60 191. See, also, Hawkes v. Kennebeck, 7 461; Brewer v. New Gloucester, 14 216; Merchants' Bk. v. Cook, (4 P.) 21 405; Chases. Merrimack Bk., (19 P.) 36 564; Keith v. Cong. Parish, (21 P.) 38 261; Gaskill v. Dudley, (6 Met.) 47 546; Lane «. Weymouth School Dist,, (10 Met.) 51 462. [See ante, arts. 1, 2.] (2.) Liability under statutes. 222, The repeal of the former statutes on this subject, by St. 1870, Ch. 224, § 69, as incident to the new system created by that statute, (P. S., Ch. 106), saved the right of the creditor of a manufacturing corporation to hold its officers personally liable, under the statute of 1863, for a debt contracted during their neglect to make a certificate of its condition, although, at the time of the repeal, he had not recovered judg- ment. Thayer v. New England L. Co., 108 523; Charnberlin v. Huguenot M. Co., 118 532. 223. So as to the right to maintain a bill in equity, which was not filed till after the enact- ment of the act of 1870. Pope v. Leonard, 1 15 286. 284 CORPORATION, V, (2). 224. As to effect of the statute of 1870, with respect to the recovery of -judgment under former statutes, see McRae v. Locke, 118 269. 225. A creditor, who is also a stockholder, cannot enforce the statutory personal liability of other stockholders. Thayer v. Union Tool Co (4 G ) 70 75; Potter v. Stevens Mach Co , 127 592; Thompson «. Bemis P Co , 127 595. 226 Qu., whether the rule applies where he was a mere equitable stockholder. Crease . New England Lithog. Co., 108 523. Oral evidence admissible to show judgment for debt at time of officer's default. Norfolk v. American S. G. Co., 108 404. judgment upon scire facias suffices. Norfolk v. American S. G. Co., 108 404. Objection that the bill is not on behalf of all creditors is fatal. Moore v. Keynolds, 109 473, Pope ■». Leonard, 115 286, Sufficiency of allegations of organization, lo- cation, failure to file annual certificates, excess of debts above capital. Pope v. Salamanca Oil, etc., Co., 115 286. Sufficiency of allegation that defendants are stockholders. Hawes v. Anglo Saxon Pet Co j 101 385. Stockholder's liability gives him no right to defend action against corporation. Byers v. Franklin Coal Co., (14 A.) 96 470. Judgment against corporation does not merge debt, so as to extinguish officers' liability. Byers v. Franklin Coal Co., 106 131. Acting officers oannot take advantage of ir- regularities, etc., in their own election. Thayer «. New Eng'd Lithog. Co., 108 523. Officer from whom decree collected, may en- force contribution against other officers. Nickerson •». Wheeler, 118 295. The requirement as to recovering judgment, etc., applies to corporations organized under general laws. Peele i>. Phillips, (8 A.) 90 86. Personal liability clauses of 1863, but not of 1862, apply to officers of a mining company. Byers «, Franklin Coal Co., 106 131. Action at law will not lie against officers. Cochrane «. Reed, (13 A.) 95 455; Bond v. Morse, (9 A.) 91 471. A corporation to refine, and prepare for use, oil, coal, etc., is a manufacturing corporation within the statute of 1862. Hawes v. Anglo Saxon Pet. Co., 101 385. Until division into shares, and the issue of certificates, the subscribers hold all the stock in common, and are thus liable. Hawes v. Anglo Saxon Pet. Co., 101 385. If corporation indemnifies one for accepting a draft for its benefit, officers may be made lia- ble, although draft does not bind corporation. Byers i>. Franklin Coal Co., 106 131. 245. For other rulings, under R. S., Ch. 38, and St. 1851, Ch. 315, see as follows: Officers' certificate of paid capital conclusive as to stockholders. Stedman v. Eveleth, (6 Met.) 47 114. Officers not liable for false certificate, unless wilfully false. btebbins v. Edmands, (12 G.) 78 203. Annual notice, to exempt stockholders, may be published at any time within a year from filing certificate. Howe v. Boston Carpet Co., (16 G.) 83 493. Officers making certificate not liable for debt, contracted before expiration of corresponding month of next year. Bond v. Clark, (6 A.) 88 361. When debts, for which directors are liable, amount to more than excess of debts over capi- tal, remedy is in equity; sufficiency of bill. Merchants' Bk. v. Stevenson, (10 G ) 76 232. Payment of dividends and preferred debts in insolvency, does not diminish directors' liability. Merchants' Bk. v. Stevenson, (10 G.) 76 232. Filing bill by one creditor for benefit of all, does not bar a previous action against corpora- tion by another creditor, or affect his right to levy upon stockholders summoned therein. Johnson v. Somerville, etc., Co., (15 G.) 81 216. Judgment against corporation necessary only for bill against stockholders, not officers. Merchants' Bk. v. Stevenson, (10 G ) 76 232; Cambridge W. Works v. Somer- ville, etc., Co., (4 A.) 86 239. No action at law against stockholders directly. Knowlton v. Ackley, (8 C.) 62 93. Not even in favor of an operative. Bell v. Spaulding, (3 A.) 85 485. Writ, and service thereof, in suit against cor- poration and stockholders. Farnum v. Ballard Vale M. Shop, (12 C.) 66 507; Holyoke Bk. v. Goodman P. M. Co., (9 C.) 63 576. Declaration. Johnson v. Somerville, etc., Co., (15 G.) 81 216. Stockholders severally answering, not entitled to separate trials. Holyoke Bk. v. Goodman P. M. Co., (9 C.) 63 576. Irregularities in becoming stockholders not available in defence. Holyoke Bk. ». Goodman P. M. Co., (9 C.) 63 576. If corporation defaulted, stockholder cannot deny its liability. Holyoke Bk. v. Goodman P M. Co., (9 C.) 63 576, Farnum v. Ballard Vale M. Shop, (12 C.) 66 507. Stockholder cannot defend claim against cor- poration, but only on personal grounds of de- fence. Holyoke Bk. ■». Goodman P M. Co., (9 C.) 63 576. Johnson v. Somerville, etc., Co., (15 G) 81 216 Hobbs v. Dane Man. Co., (5 A.) 87 581. But may show that plaintiff holds demand, and is suing, for benefit of another stockholder, equally liable. Thayer v. Union Tool Co., (4 G.) 70 75. Plaintiff must prove against stockholders the corporate existence, although corporation de- faulted. Utley v Union Tool Co., (11 G) 77 139. 286 COEPOEATION, V, (2); VI, (1). Also the failure to comply with a statutory- requisition. Taylor «. New England Coal M. Co., (4 A.) 86 577. Aliter, as to both propositions, if stockholder defaulted. Richmoni v. Willis, (13 G.) 79 182. Liability for judgment debt not established, by proof that in the suit stockholder was sum- moned, and failed to appear. Mason v. Cheshire I. Works, (4 A.) 86 398. Liability extinguished by recovery of judg- ment against corporation, if stockholder not summoned, and ceased to be such before judg- ment. Handra an ». Cheshire I. Works, (4 A.) 86 396. . Equitable suit for contribution by one stock- holder against others, does not lie, until plaintiff has exhausted remedy against corporation. Gray v. Coffin, (9 C.) 63 192. How contribution apportioned. Cary v. Holmes, (16 G.) 82 127 How enforced against guardian. Mansur v. Pratt, lOl 60. No contribution, unless party shows that ~e was compelled to pay, by .proceedings strictly legal and regular. Cary v. Holmes, (16 G.) 82 127. No contribution by officers against stock- holders. Stone v. Fenno, (6 A.) 88 579. Where one manufacturing corporation takes shares of another, in payment of a debt, it can- not have a remedy against other stockholders of the latter, for another debt. Howe v. Boston Carpet Co., (16 G.) 82 493. Stockholders cannot remove action from superior court to supreme judicial court. Robbins v. Superior Court, (12 G.) 225. Liability of stockholder or officer not prov- able in insolvency. Bangs v. Lincoln, (10 G.) 76 600. Creditor, also stockholder, cannot proceed against other stockholders, except for contribu- tion. Thayer ». Union Tool Co., (4 G.) 70 75. See, also, Gray v. Coffin, (9 C.) 63 192. Executor cannot be required to continue de- fence for stockholder who dies. Dane v. Dane Man. Co., (14 G.) 80 488. If same person held stock and other property as trustee, the other property may be taken for his liability as stockholder. Stedman v. Eveleth, (6 Met.) 47 114; Qtayv. Coffin, (9 C.) 63 192. Stockholder holding by absolute transfer liable, although held in fact as collateral. Johnson e. Somerville, etc., Co., (15 G.) 81 216; Holyoke Bk. «. Burnham, (11 C.) 65 183. Where creditor recovers a single judgment upon two demands, and stockholders liable for one only, he may levy his execution to that extent only. Stedman v. Eveleth, (6 Met.) 47 114. 78 R. S., Ch. 38, extended to incorporation for bleaching goods, made subject thereto by its charter. Johnson t>. Somerville, etc., Co., (15 G \ 81 210. ' Stockholder liable, who was such when debt contracted, though he ceased to be before pay- able. Holyoke Bank v. Burnham, (11 C.) 65 183; Johnson i>. Somerville, etc., Co (15 G.) 81 216. A retransfer, pursuant to an agreement at the time of the original transfer, terminates stockholder's liability, although made for that purpose. Holyoke Bk. v. Burnham, (11 C.) 65 183. Stockholder liable, who is such when liability of company enforced, though no* such when debt contracted. Curtis v. Harlow, (12 Met.) 53 3. St. 1851, Ch. 315, forbidding stockholder's property to be taken, if officers liable, applies to judgment recovered on a debt payable before it took effect. Denny «. Richardson, (4 G.) 70 274, Supersedeas as to certain stockholders sum- moned does not exonerate officers. Denny v. Richardson, (4 G.) 70 274 But no defence to stockholders, that officers have property enough to pay judgment. Brayton «. New England C. M. Co., (11 G.) 77 493. Where the only officer who has property is adjudged liable as stockholder, sheriff may seize his property on execution, after demand of payment of, and refusal by, corporation. Lee v. Dearborn, (4 A.) 86 164. But execution cannot be levied upon property of officer, unless, if he is a stockholder, he has been summoned and his liability established, or, if not, some other stockholder has been sum- moned, and the stockholder's liability estab- lished. Dewey s. Baker, (16 G.) 82 130. 246. For various rulings under St. 1829, Ch. 53, see Mill Dam Foundery v. Hovey, (21 P.) 38 417. 247. For a ruling under St. 1826, Ch. 137, see Bordman v. Osborn, (23 P.) 40 295. 248. For various rulings under St. 1808, Ch. 65, and St. 1817, Ch. 183, see Leland v. Marsh, 16 389; Child t>. Coffin, 17 64; Marcy e. Clark, 17 330; Ripley v. Sampson, (10 P.) 27 371: Andrews «. Callender, (13 P.) 30 484; Peirce v. Partridge, (3 Met.) 44 44; Keltona. Phillips, (3 Met.) 44 61; Stone t>. Wiggin, (5 Met.) 46 316. VI. Powers and Liabilities of Corpora- tions. (1.) Powers; ultra vires. [As to clevises to corporations, see Charity ; De- vise, I, (2) ] 249. A corporation created with a limited capital cannot increase or diminish it without CORPORATION, VI, (1). 287 legislative sanction, nor, if its capital is par- celled out into a fixed number of shares, can it increase or diminish their number. Salem Mill Dam «. Ropes, (6 P.) 23 23. 250. And generally a corporation has no powers, except such as are given to it by statute, either expressly or by necessary implication. Sutton Parish *>. Cole, (3 P.) 20 232; Salem Mill Dam «. Ropes, (6 P.) 23 23. See also, Scots Charitable Soc. v. Shaw, 8 532. 251. A corporation authorized to take posses- sion of land may acquire a title by disseisin and adverse possession, although it did not au- thorize the disseisin by deed. Rehoboth Precinct v. Rehoboth Cong. Soc, (23 P.) 40 139. 252. A corporation authorized to hold lands for depots and storehouses and for railroad pur- poses, and to authorize other railroad corpora- tions to establish depots on its lands, may mort- gage lands not needed for those purposes; and if the mortgage includes lands which it is not authorized to convey, the mortgage is void only pro tanto. Hendee v. Pinkerton, (14 A.) 96 381. 253. And such a corporation may maintain a bill for the specific performance of a contract to purchase land, which it purchased for the gravel therein. Old Colony Railroad v. Evans, (6 G.) 72 25. 254. But a corporation cannot mortgage or sell its franchise, unless there is legislative au- thority for so doing, either expressly or by reasonable implication. Comm. v. Smith, (10 A.) 92 448; Richardson v. Sibley, (11 A.) 93 65; East Boston P. Railroad v. Eastern Rail- road, (13 A.) 95 422; Middlesex Rail- roads. Boston, etc., Railroad, 115 347. 255. A corporation authorized to purchase and hold land, to appropriate its funds to chari- table purposes, and to promote inventions, etc., by giving premiums therefor, may purchase land, and erect a permanent building thereupon for exhibitions, etc., and mortgage its other land for that purpose. Richardson v. Mass. C. M. Ass'n, 131 174. 256. Neither a railroad corporation, nor a corporation for the manufacture of musical in- struments, has any power to guaranty the pay- ment of the expenses of a musical festival; and an action will not lie against either corporation upon such a guaranty. Davis v. Old Colony Railroad, 131 258. 257. At common law, a corporation aggregate can have no predecessor, and therefore in a writ of right can count only upon its own seisin. Overseers, etc.. v. Sears, (22 P.) 39 1*2. See, also, Dillingham v. Snow, 5 258 A corporation has no power to take private property, without the consent of the owner, except by legislative authority. Thacher «. Dartmouth Bridge, (18 P.) 35 501. [As to the power of the legislature to authorize a corporation to take private property, as for a public use, see Constitutional Law, 111, (o).l 259. A corporation having power to con- struct booms, etc., in a river, cannot enter an individual's chose adjoining the river, without his consent. Perry v. Wilson, 7 393. See, also, Hood v. Dighton Bridge, 3 263. 260. A corporation owning a toll-bridge may maintain a bill in equity, to restrain a city from unlawfully laying out a highway over the bridge. Central Bridge «. Lowell, (4 G.) 70 174. 261. A by-law of a corporation, which is partly void as exceeding its powers, is not for that reason wholly void, if an independent part is within its powers. Amesbury v. Bowditch Ins. Co., (6 G.) 72 596. 262. A manufacturing corporation cannot enter into a partnership with an individual. Whittenton Mills i>. Upton, (10 G.) 76 582. 263. But such a corporation may take an- other manufacturing corporation's shares in payment of a debt. Howe «. Boston Carpet Co., (16 G.) 82 493. 264. A corporation has power to purchase any property, necessary or proper to be used in the business, which it was incorporated to carry on, and to sell or let any property so acquired by it, and not needed to carry on such business. Brown v. Winnisimmet Co., (11 A.) 93 326; Lyndeborough Glass Co. ». Mass. Glass Co., Ill 315; Dupee «. Boston W. P. Co., 114 37. 265. But a corporation having only an ease- ment in property, cannot transfer the property for other purposes: and if a railroad company leases land, taken by right of eminent domain, to private individuals, for shops, etc., the owner of the fee may maintain a writ of entry, al- though such use of the property is advan- tageous to the company, and its abandonment thereof is not intended to be permanent. Locks & Canals i>. Nashua & L. Rail- road, 104 1. 266. Corporations have a common law power to issue bonds; but as the statute restricts bonds of railroad corporations to certain specified pur- poses, bonds issued otherwise are void, and a mortgage given for such bonds is void. Comm. v. Smith, (10 A ) 92 448. 267. Manufacturing and trading corporations have power to borrow money, as incident to their power to purchase, and to give security by pledge of or mortgage upon their property. Pay v. Noble, (12 C.) 66 1. 268. Where a railroad corporation, having no authority to extend its line, makes a contract for a right of way. in contemplation of pro- curing a statute authorizing such extension, the ubsequent statute makes the contract bindings, and enables the corporation to sue upon it. New Haven, etc., Co i>: Hayden 107 525. 288 COEPOKATION, VI, (1), (2), (3). 269. So where the corporation makes a con- tract for the sale of its stock, conditioned upon changing the line of the company's railroad. Portage Co. Supervisors v. Wisconsin C. Railroad, 121 460. 270. In the absence of any legislative pro- vision to the contrary, a corporation may hold and sell its own stock, and may receive it in pledge or payment, in the lawful exercise of its corporate powers. Dupee v. Boston W. P. Co., 114 87. See, also, Nesmith v. Washington Bk., (6 P.) 23 324; American R. W. P. Co. v. Haven, 101 398; Lelande. Hayden, 102 542. 271. A corporation chartered to publish pious and useful books, etc., with power to create a permanent fund, the income from which is limited, may, if the income does not exceed the limited sum, receive a sum of money, on condi- tion that it will return it, if an additional amount is not raised within a certain time; and if a question arises as to the performance of the condition, may submit it to arbitration. Morville v. American Tract Soc, 123 129. 272. A note to a bank, payable in foreign notes, which the statute prohibits the bank from receiving, is void, and an action will not lie upon it, after the repeal of the statute. Springfield Bk. v. Merrick, 14 322. 273. A corporation chartered to supply water from a certain pond, has no right to sink wells, so as to intercept the underground currrents; and will be enjoined from so doing upon an information in the nature of a quo warranto. Att'y.-Gen'l v. Jamaica P. Aqueduct, 133 361. 274. As to the rights of a subordinate lodge of Good Templars, as against persons recog- nized as the subordinate lodge by the Grand Lodge, see Chamberlain v. Lincoln, 129 70. 275. Generally, as to the effect of the expres- sion ultra vires, see Pemberton NationalBk. ■». Porter, 125 333; Watuppa Reservoir v. Mackenzie, 132 71. (3.) How and by whom objection taken. 276. Where a statute grants certain privileges to a toll-bridge corporation, and provides that in consideration thereof, the corporation shall relinquish taking toll on Sunday, the relinquish- ment is a condition subsequent, which only the government can enforce. Charles R. Bridge v. Warren Bridge, (7 P.) 24 344. [As to an information in equity and an informa- tion in the nature of a quo warranto, founded upon acts of a corporation which are ultra vires, see, also, Attorney-General; Quo Warranto.] 277._ One, who has given a note for his sub- scription to the capital stock of a corporation, cannot defend, on the ground that the charter requires the capital to be paid in, and invested in a specific manner. Little v. Obrien, 9 423. See, also, Farmers & M. Bk. v. Jenks, (7 Met.) 48 592. 278. Nor can a purchaser of goods obieu that the corporation had no authority to carry on such a trade. Chester Glass Co. ■». Dewey, 16 94. 279. The maker of a note, purchased by a national bank from the indorsee, cannot object in an action by the bank, that it had no author- ity to make such a purchase. Pemberton Nat. Bk. v. Porter, 125 333; Atlas Nat. Bk. v. Savery, 127 75. 280. In an action against a railroad corpora- tion, for refusing facilities to the plaintiff for carrying on an express business, the fact that the defendant itself carries on such business, and that its doing so is ultra vires, is immaterial! Sargent «. Boston & L. Railroad, 115 416. *81. A corporation, acting without authority, is not in the position and with the. privileges of an infant, to avoid an improvident contract; but is in the position, and subject to the disabilities, of a wrong doer. AttleboroughNat. Bk. v. Rogers, 125 339. 282. So it cannot recover back money paid under an executed contract, on the ground that it had no power to make it. Attleborough Nat. Bk, v. Rogers, 125 339. 283. A corporation cannot object, as against a bona fide holder, that its note was an accom- modation note, which it had no power to make. Bird v. Dasgett, 97 494; Monument Nat. Bk. v. Globe Works, 101 57. 284. Where a corporation makes an execu- tory contract, which is ultra vires, and fails to execute it, assumpsit upon an implied promise lies to recover back; the money, paid thereon by the other party. White v Franklin Bk., (22 P.) 39 181; Dill v. Wareham, (7 Met.) 48 438; Mor- ville v. American Tract Soc, 123 129. (3.) General rules as to liability. [See, also, Charity, VI. 1 285. A corporation, authorized to construct a public work, which. does not use due care in constructing or maintaining it, is liable to an action of tort, by any person injured by the negligence. Bryant v. Bigelow Carpet Co., 131 491. See, also, Rowe v. Granite Bridge, (21 P.) 38 344; Estabrooks v. Peter- borough, etc., Railroad, (12 C.) 66 224; Perry v. Worcester, (6 G.) 72 544; Sprague v. Worcester, (13 G.) 79 193. 286. And where a ra'lroad corporation, con- structing an embankment for its road, and a mill corporation, constructing its dam, together improperly and negligently set back water, etc., so that an injury occurs to a riparian pro- prietor's land,' they are jointly liable for the damages, without reference to the amount of damages done by each. . Bryant v. Bigelow Carpet Co., lol 491. ISee further, as to the liability oE a corporation for negligence. Carrier; Master and servabi, II; Negligence.] CORPORATION, VI, (3). 289 287. A corporation may commit a trespass, and is liable to an action on the case, and sub- ject generally to actions of tort e.s individuals are. Reed v. Home Sav. Bk., 130 443. See, also, Mower r. Leicester, 9 247. Foster v. Essex Bk., 17 479; Moore i>. Eitchburg Railroad, (4 G.) 70 465; Bar- rett t>. MaWen, etc., Railroad, (3 A.) 85 101. 288. Thus a corporation, although a savings bank, is liable to an action for malicious prose- cution. Reed v. Home Sav. Bk., 130 443. 289. And generally, a corporation is liable, even where a fradulent or malicious intent in fact is necessary to be proved, the fraud or malice of its authorized agents being imputable to the corporation. Reed v. Home Sav. Bk., 130 443. 290. A joint action of tort lies against a cor- poration and its servant, for a personal injury inflicted by the servant in the discharge of duties, although they might have been equally well discharged without undue or illegal force. Hewett v. Swift, (3 A.) 85 420. Holmes e. "Wakefield, (12 A.) 94 580] 291. An action lies by the owner of a raft against a canal company, bound by statute to maintain the canal of a depth and width, suffi- cient to enable rafts of that description to pass, for injuries sustained by insufficient depth and width. Riddle «. Locks & Canals, 7 169. 292. But quasi corporations, created by the legislature for purposes of public policy, although subject to indictment for neglect of duties enjoined on them, are not subject to an action for such neglect, unless it is given by statute. ■"lower v. Leicester, 9 247. [See, also, ante, (l).l 293. A corporation is not liable to a penalty, imposed upon an agent or superintendent "or owner " of a manufacturing establishment, for employing children in laboring longer than the statute allows. Benson v. Monson, etc., Co., (9 Met.) 50 562. As to the rule under the statute now in force, see Comm. v. Osborn Mill, 130 33. 294. A corporation is bound by contracts, made in its behalf by its agents and officers, only as far as they set within the scope of the authority conferred upon them. Tippets v. "Walker, 4 595; Hayden v. Middlesex Turnpike, 10 397; "Wyman «. Hallowell, etc., Bk., 14 58; Salem Bk. t>. Gloucester Bk., 17 1; Poster v. Essex Bk., 17 479; "White «. Westport ^lan. Co., (1 P.) 18 215. [.See ante, IV.l 295. But an excess of power, by an officer or agent, may be subsequently ratified by the cor- poration, either expressly or by implication irom its acts, and then the act binds the cor- poration. Essex Turnpike p. Collins, 8 292; Salem Bk. v. Gloucester Bk , 17 1; Vol. 1—37 Thayerle. Boston, (19 P.) 36 511; St. James Parish «. Newburyport H. Railroad, 141 500. [See ante, IV. (1); also Agency, II. J 296. A corporation, like an individual, is bound by an implied promise. Smith v. First Cong. Meeting House, (8 P.) 25 178. 297. A corporation may adopt, for the pur- pose of signing its notes, the firm name of its general agents, in which case it is bound by notes thus signed; and such adoption may be inferred from the acts and statements of the agents, and the acquiescence of the corporation. Melledge v. Boston Iron Co., (5 C.) 59 158. 298. "Where a contract is made between a corporation and one of its members, the cor- poration cannot, by its votes or acts, affect the rights of the other party. Revere v. Boston Copper Co., (15 P.) 32 851. 299. "Where the same persons compose two different corporations, and a proposition is made by one corporation to the other, and partly executed by both without a vote of acceptance by the latter, an acceptance by the latter may be inferred. Canal Bridge v. Gordon, (1 P.) 18 297. 300. "Where persons, acting as a corporation, are afterwards incorporated, and the new cor- poration takes property of the former associa- tion, and agrees to receive and pay all claims in favor of or against the former association, it is liable for a note given by the latter. Episcopal Ch. Soc. v. Dedham Episc. Church, (1 P.) 18 372. 301. A religious society, incorporated with a capital stock, and a provision, that when the dividends should have paid all the assessments and interest, the income should be devoted to parochial purposes, may make a by-law, pro- viding for the redemption of a subscriber's cer- tificate, if he leaves the place; and such a by- law, and a subscription under it, is a contract, which a subscriber may enforce. Davis ■». Lowell Meeting Ho., (8 Met.) 49 321. 302. "Where a director, authorized by the board to contract for certain machines, made a contract in his own name, for the manufacture of patterns for such machines, and, when the manufacturer presented his bill told, him to make it out against the corporation, and on his doing so, the treasurer pi omised that the corpo- ration would pay it; a jury may rind that the work was done for and by authority of the corporation. Merrick «. Reynolds E. &G. Co., lOl 381. 303. "Where a statute authorizes a corporation to make to a county a proposition for the sale of its stock, under its seal and the signature of its president, and authorizes the county to ac- cept it, and the proposition is made under seal and the signature of the vice-president, and ac- cepted, the irregularity is covered by a subse- quent statute, providing that no defects or irregularities before the acceptance should in- validate the agreement. 290 COEPOKATION, VI, (3), (4); VII. Portage County «. Wisconsin C. Kailroad, 121 460. 304 The charter of an insurance company, requiring all policies to be signed by the presi- dent, does not require the company's assent to an assignment of a policy to be so signed; and the secretary's signature prima facie suffices. New England Ins. Co. ». DeWolf, (8 P.) 25 56. 305. And the company adopts the secretary's act, by accepting the assignee's guaranty of the premium note. New England Ins. Co. v. De Wolf, (8 P.) 25 56. 306. An order for goods addressed to a cor- poration, and accepted by "A B., treasurer," he being the treasurer, is accepted by the corpo- ration. Rogers «. Union Stone Co., 134 31. 307. So a check, with the name of the corpo- ration printed in the margin, signed "A. B., treasurer," is the check of the corporation. Carpenter ». Parnsworth, 106 561. 308. So a note, purporting to be made by a corporation, and signed by its treasurer, is the note of the corporation. Whitney v. Stow, 111 368. 309. An assignment of a mortgage, purport- ing to be made by the corporation, sealed and signed "A. B., president," or "A. B., treasurer," is the deed of the corporation. Hutchins «. Byrnes, (9 G.) 75 367; Murphy v. Welch, 128 489. 310. A corporation is chargeable with the notice or knowledge of a director, who is acting for it in the particular transaction, except where he is acting also for himself, or in behalf of another, with whom he is interested in the transaction. Innerarity v. Merchants' Nat. Bk., 139 332 [See, also. Bank, IV, (1).] (4.) Indictment. [See, also. Bridge ; Carrier, IV, (2) ; Highway, V, (4): School, IV.l quasi corporations, 311. As to indictment of see ante,axt. 292. 312. Where the charter of a corporation to build a toll-bridge allows three years for its completion, and prescribes that it shall be built with draws and piers, and the corporation erects the bridge without piers, and takes toll, it is in- dictable, although the three years have not elapsed. Comm. v. Newburyport Bridge, (9 P.) 26 142. 313. A corporation may be indicted for a misfeasance as well as for a nonfeasanee. Lumbard v. Stearns, (4 C.) 58 60; Comm. v. New Bedford Bridge (2 G.) 68 339. VII. Foreign Corporations. .[See, also, Conflict or Laws, III, (6). as to for- eign insurance companies, see Insurance Company, IV. As to taxation of foreign corporations, see Taxation.] 314. A foreign corporation may maintain an action in this Commonwealth Portsmouth Livery Co, ». Watson, 10 91; British American Land Co. », Ames (6 Met.) 47 391; Johnston v. Trade Ins' Co., 132 432. 315. But one foreign corporation cannot main- tain a bill in equity here, against another foreign corporation, and a citizen (f this Common- wealth, to enforce specific performance of a contract for the delivery of bomis and certifi- cates of stock, in payment for work to be per- formed in the foreign jurisdiction, and to enjoin the disposition here of stock and bonds, alleged to have been received in violation of the pla ntiff's rights, although the corporation defendant has an office here Kansas Construction Co. v. TopekaHail- road, 135 34. 316. A foreign insurance corporation may make a valid contract of insurance in this Corn- wealth. Kennebec Co. v. Augusta Ins. Co. (6 6 ) 72 204. 317. A foreirn insurance corporation may take a mortgage here, to secure a debt owing to it by a citizen of this Commonwealth, and may foreclose the same. American Ins. Co. i>. Owen, (15 G.) 81 491. 318. A bill in equity will not lie against a foreign corporation, having neither officers nor an office here, for a failure to declare and pay dividends, according to its certificates of stock. Williston 1). Michigan So., etc., Railroad, (13 A.) 95 400. 319. Under St. 1832, Oh. 164, a foreign cor- poration could not be summoned as trustee, although the principal officers resided here, and the corporation had leased property, and had agents here. Nat. Bk. of Commerce v. Huntington, 129 444. See, also, Danforth ». Penny, (3 Met.) 44 564; Gold v. Housatonic Railroad, (1 G.) 67 424; Larkine. Wil- son, 106 120. 320. As to the effect of St. 1839, Ch. 158, see Ocean Ins. Co. v. Portsmouth Railway, (3 Met.) 44 420. 321. But since St. 1870, Ch. 194; P. S., Ch 183, § 1, a foreign corporation, having a usual place of business here, may be thus summoned, and the process may be served upon the treas- urer. . Nat. Bk. of Commerce v. Huntington, 129 444. As to service upon a resident attorney, ap- pointed under St. 1851, Ch. 331, see Thayer v. Tyler, (10 G.) 76 164. 322. But, in general, an action will lie against a foreign corporation, only where an attachment has been made of its property within this Commonwealth. Peckham v. Haverhill Parish, (16 P.) 33 274; Silloway ». Columbia Ins. Co., (8 G.) 74 199; Andrews v. Michigan C. Railroad, 99 534; Nat. Bk. of Com- merce «. Huntington, 129 444. CORPORATION, VII; VIII. 291 323. Before St. 1884, Ch. 330, where a for- ei n corporation was sued here, its property attached, and an attested copy of the writ left with the treasurer, it was held that the action was not so "commenced," within P. S., Ch. 169, § 25, that the plaintiff could take a depo- sition. Lewis ». Northern Railroad, 139 294. 324. Under St. 1851, Ch. 206, P. S., Ch. 151, § 2, cl. 11, the supreme judicial court has juris- diction upon a creditor's bill over the property of a foreign corporation here. Silloway v. Columbia Ins. Co., (8 G.) 74 199. 325. Under St. 1878, Ch. 36; P. S., Ch. 119, §§ 202, 203, an action at law may be maintained here by a non-resident, against a foreign insur- ance company doing business here, and service of process on the insurance commissioner suf- Johnston v. Trade Ins. Co., 132 432. 326. Before the St. of 1884, it was held, that the supreme judicial court had no jurisdiction of a bill in equity, by a resident against a for- eign corporation, having a place of business here, to compel performance of an agreement to assign letters patent and chattels, where the only service of the subpoena was upon the treasurer. Desper v. Continental "W. M; Co., 137 252. 327. A payment of corporate debts, by a stockholder of a foreign corporation, will be presumed to have been voluntary, in the ab- sence of proof that he was liable therefor. - Eastman v. Crosby, (8 A.) 90 206. 328. The statute of the state where a foreign corporation was incorporated, which permits trustees, etc. , to prosecute actions after the disso- lution, will enable an assignee to prosecute here, after the expiration of the charter, an action previously commenced by the corporation. Michigan State Bk. v. Gardner, (15 G.) 81 362. 329. The dissolution of a foreign corporation, by the foreign government, prevents the subse- quent recovery of a judgment in this, or another state. Remington & Sons v. Samana Bay Co., 140 494. VIII. Actions and Suits in Equity by and against Corporations. [See. also, ante, I, (2) ; I, (3) ; III; VI ; and the titles or the various actions; also Bank; Contract; B?y5 NA ? T ; Insurance Company ; Kailroad Com- pany; etc. As to service of process, see Writ, III.] 330. A corporation is a necessary party to a suit m equity against its trustees, to restrain the misappropriation of a fund held by it in trust. Tibballs u. Bidwell, (1 G.) 67 399. 331. Or to compel them to apply funds to the payment of a demand against the corporation. Lyman v. Bonney, 101 562. 332. So it must be made a party to a bill against the holder of a majority of the shares, to restrain corporate acts ultra vires. Price v. Minot, 107 49 333. Or to prevent its officers from paying out money. Allen v. Turner, (11 G.) 77 436. 334. A member of the corporation, although not an officer, is properly made a party to a bill for discovery and relief, and must answer so much of the bill as seeks a discovery, although the bill states no special reason for making him a party. Wright d. Dame, (1 Met.) 42 237. [See further, ante, V, (8); and Equity Pleading- and Practice, II, (1).] 335. Where a note in the form, "I promise to pay," is signed " E., Prest. and Treas. C Company," an action lies upon the same against E., but not against the company. Davis v. England, 141 587. I For other rulings upon this subject, see Agency, ' iv, (l).] 336. Upon a note payable to the cashier of a bank, or his order, an action lies in favor of the bank, where the consideration proceeded from it. Commercial Bk. v. French, (21 P.) 38 486. 337. Where the cause of action arose in favor of a corporation, named ' ' The trustees of the ministerial fund," etc., an action is not well brought in favor of "A, B, and C, trustees of the ministerial fund," etc. Bartlett v. Brickett, (14 A.) 96 62. 338. A covenant to the rector, wardens, and vestry of an Episcopal church, to pay rent to the rector, or the wardens, will not sustain an action by the rector and wardens. Montague v. Smith, 13 396. 339. A declaration, upon a promissory note, alleging that it was made to the Medway Cotton Manufactory, the plaintiff, by the name of R. M. & Co., is good upon demurrer. Medway Cotton M. Co. v. Adams, 10 360. 340. "Where a corporation refuses, upon no- tice, to produce its records, oral evidence of the election or appointment of its officers or agents is admissible. Thayer v. Middlesex Ins. Co., (10 P.) 27 326; Narragansett Bk. v. Atlantic S. Co., (3 Met.) 44 282. 341. Seirible, that records of a corporation, certified by the recording officer, are evidence in actions between the members relating to cor- porate matters. • Oakes v. Hill, (14 P.) 31 442. See, however, Hallowell & A. Bk. v. Hamlin, 14 178; Hastings v. Blue Hill Turnpike, (9 P.) 26 80; Stebbins v. Merritt, (10 C.) 64 27. 342. The record is evidence in an action be- tween the clerk who made it and the corpora- tion; and the fact that he recorded the vote, is evidence in his favor that he accepted his elec- tion to the office. Delano v. Smith Charities, 138 63. 343. The knowledge of a stockholder in a manufacturing company, of the existence of certain facts, is not notice of the facts to the corporation. Housatouic Bk. ». Martin, (1 Met.) 42 294. [As to when notice to a director is notice to the corporation, see Bank, IV. (1).] 292 COKPOKATION, IX. 344. A corporation cannot maintain an action upon a contract made, before its incorporation, between the defendant and the persons after- wards incorporated, contemplating such incor- poration, and the business to be done thereafter, unless it has in some manner become a party to the contract since its incorporation. Penn Match Co. v. Hapgood 141 145. IX. Insolvency; Forfeiture; Dissolution. [See, also. Bank, I, (3); Insolvent, XI; Insur- ance Company, III.] 345. A court of chancery has, in the absence of fraud or breach of trust, no peculiar juris- diction over corporations, to restrain them from violating their charters ;or to decree a dissolution, appoint a receiver, and restrain the further pros- ecution of their business, in case of insolvency. Treadwell v. Salisbury M. Co., (7 6.) 73 393; Folger v. Columbian Ins. Co., 99 267; Pond v. Framingham, etc., Railroad, 130 194. 346. The charter of a corporation, granted since the G. S., may, under the power reserved in Ch. 68 of the G. S., be repealed by the legis- lature. Thornton v. Marginal F. Railway, 123 32. 347. Such a repeal may be effected directly, or by an act transferring the property and franchises to another corporation, and the ces- sation of all business by the old, and the recog- nition of the new corporation. Stone v. Framingham, 109 303; Thornton v. Marginal F. Railway, 123 32. 348. A surrender by a corporation of its franchises to, and the acceptance thereof by the government, amount to a dissolution Stone v. Framingham, 109 303. See, also, Revere v. Boston Copper Co., (15 P.) 32 351; Boston Glass Man. Co. v. Lang- don, (24 P.) 41 49; Folger «. Columbian Ins. Co., 99 267. 349. And a subsequent mention of the former corporation in a statute does not revive it. Thornton v. Marginal F. Railway, 123 32. 350. But the mere transfer by statute of the powers, etc., of a corporation connected with a town government, upon the erection of the town into a city, to a corporation connected in like manner with the city government, is a con- tinuation of the corporation, not a dissolution. Boston Overseers v. Sears, (22 P.) 39 122. 351. Upon the repeal of a charter by the legislature, the corporation ceases to exist, and no judgment can be recovered against it at law. But the repeal does not impair its contracts, or prevent its creditors or stockholders from assert- ing their rights in equity. Fosters. Essex Bank, 16 245; Thorn- ton «. Marginal F. Railway, 123 32 352. Semble, however, that under the statute a judgment may be taken at any time within three years. Thornton v. Marginal F, Railway, 123 353. But a judgment creditor's bill, p. g Ch. 151, § 2, cl. 11, cannot be sustained against a dissolved corporation; and a court of equity has no general jurisdiction to apply the prop- erty of the corporation to pay a creditor, who has not recovered judgment. Thornton v. Marginal F. Railway, 123 32; explaining, upon this point, Taylor v Columbian Ins. Co., (14 A.) 96 353- and Folger v. Columbian Ins. Co., 9 X. Miscellaneous Rulings , relating to PARTICULAR CORPORATIONS. Andover & Wilmington Railroad; Andover& Haverhill Railroad, see Boston and Lowell Railroad, infra. Andover Theological Institution, see In re Murdock, (7 P.) 24 308; Mur- dock v. Phillips Academy, (12 P.) 29 244, cited in Charity, III. Boston and Lowell Railroad, see Boston & L. Railroad v. Boston & M. Railroad, (5 C) 59 375; Lowell & L. Railroad v. Boston & L. Railroad, (7 G.) 73 27. Boston and Maine Railroad. See that title. Boston and Roxbury Mill Corporation. See that title. Cape Cod Ship Canal Company, see Briggs v. Cape Cod S. C. Co., 137 71, cited, ante, arts. 20 to 22, 370. Central Bridge. See Bridge. Charlestown Wharf Company. See Wharf . Connecticut and Susquehanna Company, titles under, see Phelps v. Decker, 10 267. Eastern Railroad. . See Appeal, art. 85. As to the construction and effect of St. 1876, Ch. 236, authorizing this company to issue bonds secured by a mortgage, and of subsequent stat- utes relating thereto, see In re Eastern Railroad, 120 412; Boston Third Nat. Bk. e. Eastern Railroad^ 122 240; Smith v. Eastern Railroad, 124 154; Pollock v. Eastern Railroad, 124 158; Elwell v. Eastern Railroad, 124 160; Merchants Nat. Bk. v. Eastern Railroad, 124 518; Shaw v. Eastern Railroad, 124 518; Eastern Railroad v. Rogers, 124 527; Hamor v. Eastern Railroad, 133 315; Phillips v. Eastern Railroad, 138 122. Under St. 1876, Ch. 236, and St. 1885, Ch. 8, it is the duty of the trustees of the Eastern Railroad mortgage to cancel certificates pur- chased by them, and they cannot vote upon such certificates. N. E. Life Ins. Co. v. Phillips, 141 535. As to the validity of the mortgage of the Grand Junction, etc., Co. to this company, see East Boston F. Railroad *. Eastern Rail- road, (13 A.) 95 422. Fitchburg Railroad; Grand Junction Railroad and Depot Company. As to the construction and effect of St. 1856, Ch. 296, § 4, and St. 1857, Ch. 128, relating to apportioning the ex- pense of constructing a railroad bridge, and altering curves and grades, etc., see Fitchburg Railroad «. Grand Junction Railroad, etc., Co., (1 A.) 83 552; Fitch- burg Railroad i>. Grand Junction R. R. etc., Co., (4 A.) 86 198. Grand Junction Railroad and Depot Com- pany. Validity of mortgage. East Boston F. Railroad u. Eastern Rail- road, (13 A.) 95 422. Hancock Free Bridge, see Comm. ■». Hancock Free Bridge, (2 G.) 68 58; Harlow v. Rogers,, (12 C.) 66 291. Harvard College. See College. 294 COEPORATION, X— COSTS, I, (1). Hoosac Tunnel and Troy & Greenfield Rail- road. Action against manager, under St. 1875, Ch. 77; St. 1876, Ch. 150; St. 1878, Ch.191 ;St. 1879, Ch. 141; and St. 1880, Ch. 261. Amstein v. Gardner, 134 4. Locks and Canals on Merrimack River. See Bridge. Lowell & Lawrence Railroad. See Lowell & L. Railroad «. Boston & L. Railroad, (7 G.) 73 27. Middlesex Canal. As to construction of St. 1793, Ch. 21, relating to damages of land owner for flowing; see Heard v. Middlesex Canal, (5 Met.) 46 81. New York and New England Railroad. Right of city of Boston to establish grade, lay out new streets, etc. New York, etc., Railroad v Boston, 127 229. Newport and Fall River Railroad; Old Colony and Fall River Railroad. Validity of lease under St. 1861, Ch. 156. Durfee v. Old Colony, etc., Railroad, (5 A.) 87 230. Provident Institution for Savings. Although chartered in 1816, it is subject to general laws since passed, relating to savings banks. Opinion of the Justices, (9 C.) 63 604. Salem and Danvers Aqueduct. Construction of St. 1850, Ch. 273, as to taking water from Spring Pond. Fay ». Salem & D. Aqueduct, (9 A.) 91 577. Vermont and Massachusetts Railroad. Rights of subscribers and holders of scrip, see Cor- poration, II, (2). "Western Railroad. Construction of, St. 1838, Ch. 9, § 3, requiring annual payment to sinking fund. Opinion of the Justices, (5 Met.) 46 596. Corpse, remoying from grave. [See Burial, III/] Costs. (At law.) I. When, to whom, and against whom GENERALLY AWARDED. (1.) General rules. (2.) Two or more actions, counts, or parties. (3.) How affected by damages recovered. (4.) Who is liable for costs; costs against an executor or administrator. II. Costs in particular Proceedings. (1.) Exceptions; double costs. (2.) Review. (3.) Error; double costs; increased interest. (4.) Probate; insolvency. (5.) Real actions. (6.) Flowing lands, and other water causes. (7.) Partition. (8.) Trustee process. (9.) Damages for taking lands. (10.) Other proceedings. HI. Security for Costs. IV. Taxation; Review thereof; taxable Items. [As to costs in charity causes, see Charity, V; in equity causes, see Equity Pleading and Prac- tice, II, (10); also Mortgage, IV: V ; as to the set off of costs, see Set Oinr. Generally, see also Ap- peal; Attachment; Error; Execution; Judg- ment; Officer; Practice; Recognizance; Ke- vtew.'I I. When, to whom, and against whom gen- erally AWARDED. (1.) General rules. 1. There is no claim for costs in an action at law which the court can recognize, until final judgment. Ross ». Harper, 99 175. [As to costs on an award, see Arbitration, V, (2).] 2. Where costs are in the discretion of the court below, its decision thereupon will not lay the foundation of a mandamus. Chase v. Blackstone Canal, (10 P.) 27 244; Mc parte Moise, (18 P.) 35 443. 3. But where a party is entitled to costs, the denial of them by the inferior tribunal, will be corrected by mandamus. Bx parte Morse,, (18 P.) 35 443. 4. Where a general judgment is rendered for the defendant, in an action in which he has filed a declaration in set off, neither party is entitled to costs. Hartford©. Co-operative, etc., Co., 130 447. See, also. Lapham v. Norris, (10 C.) 64 312; Caverly . Hadley Falls Co., (5C.) 59 602 14 But under St. 1875, Ch. 217, if the land- owner applies for a jury, the city cannot have costs, although he has needlessly given a bond therefor; and if the city appeals from the refusal of costs, it is liable for costs of the appeal. "Williams v. Taunton, 126 287. 15. Where both parties appeal from the superior court to the supreme judicial court, and one party waives his appeal, and prevails upon the other party's appeal, neither can have costs of appeal under P. S , Ch. 198, § 27. Childs v. New Haven & N. Co., 135 570. \ 16. If a writ is abated by death the defendant has no costs; aliter, if he abates it by plea. Haines *. Corliss, 4 659; Cutts v. Haskins, 11 56; Guild v. Richardson, (6 P.) 23 364; Fales ». Stone, (9 Met.) 50 316. 17. So where one of three defendants, sued in tort, and who pleaded severally, died after non- suit, the surviving defendants, on confirmation of the nonsuit, had costs; but not the adminis- trator of the deceased defendant, and his peti- tion therefor was denied with costs de bonis propriis. Fales «. Stone, (9 Met.) 50 316. 18. The defendant is entitled to costs upon the plaintiff's failure to enter the writ, although it contains no declaration, and the defendant was arrested, and although it has been lost, or not returned. So upon a mis-entry. Gilbreth v. Brown, 15 178; Lombard v. Oliver, (5 G.) 71 8; Harding v. Downs, 110 56. 19. Where the plaintiff recovers only the balance of his claim, after deduction for usury, he was not, [and the defendant was entitled to costs, under the R. S. Mansur v. Wilkins, (1 Met.) 42 488. 20. Where the defendant dies pending an action of assumpsit, and the executor appears, and the estate is subsequently declared insol- vent, and proceedings are stayed upon the executor's representation thereof, the latter can nave no costs. Hunt v. Whitney, 4 620. . 21. Trustees, under IT. S. R. S., § 5103, who intervene in a suit by an attaching creditor, commenced within four months of the bank- ruptcy proceedings, are entitled to costs upon a judgment for the defendant, upon his dis- charge in bankruptcy. Moors v. Albro, 129 9. ^2. A wife, prevailing upon a libel for di- vorce, or where the husband discontinues the libel, is entitled to costs against her husband. Stevens v. Stevens, (1 Met.) 42 279; BurrowB v. Purple, 107 428. 23. So where she is allowed an increase of alimony. Bursler v. Bursler, (5 P.) 22 427. 24. Where an action is dismissed for want of jurisdiction, the defendant, in this Common- wealth, recovers costs. Cary v. Daniels, (5 Met.) 46 236; Tur- ner v. Blodgett, (5 Met.) 46 240, note; Jordan ®. Dennis, (7 Met.) 48 590; Hunt v. Hanover, (8 Met.) 49 343; Davis ». Hastings, (8 C.) 62 313; Elder v. Dwight Man. Co., (4 G.) 70 201. 25. Where judgment is arrested, the defend- ant is entitled to costs. Hart v. Fitzgerald, 2 509; Hogins ?>. Arnold, (19 P.) 36 191. 26. Where, upon the trial of an action of replevin, it is admitted that the plaintiff's title to all the articles depends upon the validity of a bill of sale, and the jury find it valid, the de- fendant is not entitled to costs, although it is admitted that he did not take some of the arti- Ashton «. Touhey, 131 26. 27. See as to costs in replevin, under the for- mer statute, Powell ». Hinsdale, 5 343; Arnold v. Brackett, 5 344, note; Jordan v. Den- nis, (7 Met.) 48 590. 28. Where the defendant pays money into court, and the plaintiff proceeds, and a verdict is given against him, neither party has costs previous to the payment. Williams v. Ingersoll, (12 P.) 29 345. 29. Where the defendant, after issue, filed a plea puis darrein continuance, which was held bad on demurrer, he was allowed to amend on paying costs since the plea; but the plea did not debar him from recovering costs before the plea, on his prevailing. Coffin v. Cottle, (9 P.) 26 287. 30. Where a cause is erroneously removed from the superior court, and afterwards remit- ted there, the prevailing party may tax costs for the terms while it was on the docket of the supreme court. Benjamin v. Wheeler, (2 A.) 84 235. 31. A trespass, committed under a claim of right, is not an involuntary and casual trespass, within the statute relating to costs against a plaintiff, who sues after tender of amends. Viall v. Carpenter, (16 G.) 82 285. 32. If the defendant in an action upon a bond, confesses forfeiture, the plaintiff is entitled to costs, although upon a hearing in equity it ap- pears that nothing is due. Lyman v. Warren, 12 412. 33. Upon a policy of insurance, where part of the sum insured is payable to a mortgagee, the assured may sue if the mortgagee assents, 296 COSTS, I, (2). and, if the assent was given before the com- mencement of the action, he may recover costs. Jackson *. Farmers' Ins. Co., (5 G.) 71 52 34. Upon judgment for the defendant, upon demurrer to a declaration at law, praying relief in equity, he is not entitled to costs, if neither directed in the judgment nor moved for at the first term after it is entered. Winslow v. Otis, (5 G.) 71 360. (2.) Two or more actions, counts, or parties. 35. After satisfaction of a judgment against one wrong doer, while an action is pending against a joint wrong doer, the plaintiff cannot have judgment for nominal damages and costs; but the defendant,^ on pleading the judgment and satisfaction, is entitled to judgment for his costs. Savage v. Stevens, 128 254. 36. So as to actions against different parties to a promissory note. Gilmore v. Carr, 2 171. 37. But if there had been no satisfaction, the plaintiff might have recovered damages and costs in each action, and the court would not have stayed proceedings in one action, except upon payment of the debt and costs of both actions. Simonds v. Center, 6 18; Porter v Ingraham, 10 88; "Whipple v. Newton, (17 P.) 34 168. 38. "Where an officer, who had attached prop- erty upon different writs, in favor of different plaintiffs, against the same defendant, which was afterwards replevied by one person, com- menced a separate suit upon each replevin bond, he was allowed costs in all the suits. Morse v. Hodsdon, 5 314. 39. Under the R. S., if a plaintiff, on differ- ent days, brought different actions against the same defendant, upon demands which might have been joined in one action, and the defend- ant was defaulted, he might recover costs in each. Butler v. Shapleigh, (10 C.) 64 303. 40. But now see St. 1879, Ch. 226, § 2; P. S., Ch. 198, § 11. See further, as to the applica- tion of St. 1784, Ch. 28, § 12, and this provision of the R. S., Ripley v. Chandler, 10 175; Stafford v. Gold (9 P.) 26 533; Dorrell v. John- son. (17 P.) 34 263. 41. Before the R. S., if there were several counts in a declaration, and the plaintiff re- covered on some, and the defendant on the others, the plaintiff had, and the defendant had not, costs. Fowler v. Shearer, 7 14. 42. Under R. S., Ch. 121, § 16, it was held: That where in slander, two counts allege the speaking of the same words at different times, and the plaintiff has a verdict on one and the defendant on the other, the defendant has no costs. Sayles v. Briggs, (1 Met.) 42 291. Where there are several counts in slander, setting forth two distinct causes of action, and Hae plaintiff has a verdict upon one set, and the defendant on the other set of counts, the plain- tiff is entitled to the costs of the action, and for all his evidence, not exclusively applicable to the counts on which the defendant recovers; and the defendant is entitled only to costs for his evidence exclusively applicable to the latter Tatem v. Adams, (2 C.) 56 180. So where in assumpsit, the first count was on an account annexed, and the second on a special contract for the sale of hay, and it appeared that a special contract was made, upon which part of the hay was delivered, and the defend- ant refused to receive the remainder, and the jury found a verdict for the defendant on the second count, and for the plaintiff on the first. Totman *. Carpenter, (4 C.) 58 148] So where in trespass, all the evidence was applicable to the count on which the plaintiff recovered, the defendant, succeeding upon the other count, has no costs. Elder ». Bemis, (2 Met.) 43 599. Where the jury disagree upon one count, and find for the plaintiff on another, and he strikes out the former, the defendant has no costs. Soule v. Russell, (13 Mejt.) 54 436. 43. Under G. S., Ch. 156, § 11; P. S., Ch. 198, | 12, where in, an action upon several promissory notes, against one of which the de- fence of usury is established, and against the other it is not established, each party is entitled to costs. Ramsay ■». Warner, 97 8. See, also, Brigham «. Marean, (7 P., 24 40. 44. "Where an action is brought against sev- eral as tort feasors, and they sever in their pleading, each is entitled to costs if they pre- vail. Brown v. Stearns, 13 536; Mason v. Waite, (IP.) 18 452; Appletonu. Car- penter, (1 P.) 18 458; West «. Brock, (3 P.) 20 303; Fales ». Stone, (9 Met.) 50 316. [Astotheeffectof the death of one, see ante, art. 17.] 45. But the rule does not apply to directors of a mutual insurance company, sued in con- tract, with an alternative count in tort, for failure to make an assessment to pay a loss, and severing in their pleading, who are entitled to one set of costs for one defence. Upton v. Pratt, 106 344. 46. "Where defendants sued as tort feasors and prevailing, pleaded jointly in the common pleas, and severally in the supreme court, and filed a joint specification of defence, they were allowed joint costs in the common pleas, and several costs for travel and attendance in the supreme court, an aliquot part of expenses to ' Fales v. Stone, (9 Met.) 50 316. 47. Although the defendants appear by the same attorney, if they sever in their answers, they are entitled to separate costs, except for money paid out by them jointly for expenses. Fales v. Stone, (9 Met.) 50 316; O'Connell «. Bryant, 126 232. 48. The rule as to separate costs applies, where an action of tort is changed on the plain- tiff's motion to a suit in equity, although it was originally brought in contract. George v. Reed, 104 366. COSTS, I, (2), (3). 297 49. It applies to several defendants in replevin, who severally move to dismiss the action for want of jurisdiction. Davis v. Hastings, (8 C.) 62 313. 50. But where defendants in tort join in their pleading and both prevail, they can have tut one bill of costs. Ewer is. Beard, (3 P.) 20 64. 51. Where they sever in pleading, and the plaintiff prevails as to both, he can have but one bill of costs. Kempton «. Cook, (4 P.) 21 305. 52. Where some of the defendants are de- faulted, and the plaintiff has a verdict against the others, the plaintiff is entitled to full costs against all. Kennebeck Purchase ». Boulton, 4 419 , 53. In partition, where the petitioner re- covered less than he claimed, the respondents were awarded costs; but as they were all heirs of one person, and made the same defence, they were allowed only single costs, although they pleaded separately. Peabody «. Minot, (24 P.) 41 329. 54. Where the chairman of county commis- sioners answers for all, costs can be taxed for travel and attendance, of one only. Ipswich v. Essex Com'rs, (10 P.) 27 519. 55. In a joint action against maker and in- dorser of a promissory note, each is entitled to a separate bill of costs. Taylor «. Jaques, 109 270. 56. In an action on a probate bond for the benefit of several, the plaintiff can have but one bill of costs. Paine v. Mclntier, 1 69; Dawes v. Bell, 4 106; Thomas v. Sever, 12 379. 57. In assumpsit, if the defendants unneces- sarily sever in their pleas, they can ha\ e but one bill of costs. Meagher v. Bachelder, 6 444; Ward v. Johnson, 13 148. 58. Under the practice act, joint defendants, who do not sever in their defence, can have but one bill of costs. Mathers v. Cobb, (3 A.) 85 467. 59. Where, in assumpsit,, two defendants were defaulted, and the third pleaded, and after- wards the plaintiff discontinued as to him, the plaintiff can have no costs against the two, sub- sequently to their default. Matthews v. Vining, (21 P.) 38 335. C3.) How affected by damages recov- ered. 60 Under P. S., Ch. !98, §§ 1, 5 to 7, (G. S., Ch. 156, §£ l, 5, 6; St. 1862, Ch. 36, § 1,) the plaintiff, in an action originally brought in the superior court, is not entitled to costs, unless he recovers more than $20, except where title to real estate or an easement is concerned, or his claim was originally more than $20, and is reduced below that sum by set offs. Douglass i). Nichols, 133 470. 61. A right to an easement is involved in an action against a railroad for diverting surface VOL. 1—38 water upon the plaintiff's land, wherein the de- fendant claims the right so to do. Rathke v. Gardner, 134 14. 62. Where the plaintiff recovers $21.16, of which $20 are the original debt, and $1.16 in- terest from the date of the writ, he is entitled to costs. Douglass v. Nichols, 133 470. 63. Under the highway law, the rule as to interest is different. Kidder v. Oxford, 116 165. [See poet, art. 179.] 64. But where the verdict is for $20, and in- terest is added after verdict, he can have no costs. Joannes v. Pangborn, (6 A.) 88 243; Douglass v. Nichols, 133 470. See, however, Fisk ». Gray, lOO 191. 65. In an action for trespass on real property, the plaintiff recovering $20 or less can have no costs, unless the judge certifies that title was concerned, and his certificate cannot ordinarily be reviewed Heim's v. Ring, (11 A.) 93 352; Hub- ner e. Hoffman, 106 346. 66. But where the certificate is based upon a ruling, to which an exception is taken, both may be reviewed together. Bathke «. Gardner, 134 14. 67. If the plaintiff recovers more than $20 in the aggregate, he has his costs, although he re- covered less on each count. Hillman v. Whitney, (2 A.) 84 268. 68. The words "finally recovers" refer to the ultimate judgment, and where the plain- tiff has judgment for the penalty of a bond ex- ceeding $20, he has costs, although the award of execution is for less. . Fisk v. Gray, lOO 191. 69. Where, after action brought, the defend- ant pays $20 in full settlement, and then pleads the settlement, to which the plaintiff replies that it was obtained by fraud, and upon the trial the payment is allowed, and the verdict is for $1, the plaintiff has full costs. O'Connor v. Wyeth, (14 A.) 96 159. 70. As to the effect of St. 1859, Ch. 196, § 5, upon causes commenced before it went into operation, see Brigham v. Dole, (2 A.) 84 49, 71. Under the R. S., a tender before entry of an action, did not deprive the plaintiff of costs, although he recovered less than $20. Reed «. Wilson, (11 G.) 77 486. 72. Under the R. S., where tort was Drougnt by husband and wife, for entei ing their close and injuring the wife, to which the defendant pleaded" title in himself, and the judge ruled at the trial that the plaintiffs could not maintain the action, as an action quaie elatimim, but only for the injury to the wife, held, that title to real property was not in question. Robbins v. Sawyer, (3 G.) 69 375. 73. But where the action was for tearing down, etc., a wooden building, and the declara- tion averred that the reversion of the land belonged to the plaintiff, the defendant being in possession as tenant for years, and the de- 298 COSTS, I, (3), (i). fendant justified the pulling down, and put in issue the plaintiff's allegation of title, held, that title was in question. Willard v. Baker, (2 G.) 68 336. 74. An action for corrupting the water of the plaintiff's well by a nuisance on the adjoining land, concerns real property under the R. S. Murray v. Watson, (12 C.) 66 457. 75. The general rule, under the R. S. , was, that where either the declaration or the plea showed that the action concerned the title to real prop- erty, the plaintiff had full costs upon any re- covery; but where the pleadings did not show that fact, the plaintiff's right to costs, on a re- covery for $20 or less, depended upon the issue actually raised at the trial. Ryder v. Hathaway, (2 Met.) 43 96; Badlamu.Field,(7Met.) 48 271; Shurt- leff v. Hutehins, (10 Met.) 51 248; Sawyer v. Ryan, (13 Met.) 54 144; Dexter «. Manley, (4 C.) 58 14; Butter- field D. Caverly, (6 C.) 60 275; Blan- chard v. Fitchburg Railroad, (8 C.) 62 280; Holmes v. Leland, (1 G.) 67 625; Chase v. Keyes, (2 G.) 68 214. 76. The provision of the R. S. did not include a judgment upon an award of arbitrators. Loud v. Hobart, (2 0.) 56 325. 77. For rulings on this subject under St. 1820, Ch. 79, § 4, see: As to real actions, Plympton v. Baker, (10 P.) 27 473 Upon other questions, believed to be now obsolete, Godfrey v. Godfrey, (1 P.) 18 236; Chace t>. Tucker, (2 P.) 19 27; Andrews «. Austin, (2 P.) 19 528; Leland v. Bussey,(7P.) 24 13; Plimpton ». Baker, (9 P.) 26 70; Briggs v. Murdock, (13 P.) 30 305; Emerson ®. Newbury, (13 P.) 30 377; Abbott e. "Wiley, (17 P.) 34 321; Sawyer v. Bancroft, (21 P.) 38 210. 78. For rulings under St. 1811, Ch. 33, § 4, see: As to reduction by set off, Gilman ». Burgess, 12 206 As to effect on pending actions, Billings v. Segar, 11 340. 79. For rulings under St. 1807, Ch. 123, § 2, see As to what cases concern title to real property, Dummer v. Foster, 7 476; Butterfield i). Pearson, 10 410; Crocker «. Black, 16 448; Padelford v. Padelford, (7 P.) 24 152. Other questions, believed to be now obsolete, Moore v. Heald, 7 467; Barnard v. Curtis, 8 535. 80. For rulings under St. 1803, Ch. 154, § 5, see Wightman v. Hastings, 4 244; Stone D.Kelly, 8 98; Hams. Ricker, 9 28; Lakeman v. Morse, 9 126. 81. For rulings under St. 1786, Ch. 52, § 3, see Rising v. Granger, 1 47- Toppan ». Atkinson, 2 365; Bickford v. Page, 2 455; Lincoln?) Hapgood, 11 350. (4.) Who is liable for costs; costs against an executor or administrator. I. As to the indorser of a writ, see Writ, II.] 82. The Commonwealth is chargeable with costs in a civil proceeding; and a scire J 'ados is such a proceeding. Comm. v. Stebbins, (4 G.) 70 25. 83. As to the application of the provisions of the provision of the R. S. on that subject, to actions brought before they took effect, see Comm. v. Cambridge, (4 Met.) 45 35. 84. Costs are allowed against a town in pro- ceedings for removal of a pauper. Buckfield t>. Gorham, 6 445. 85. In an action by husband and wife, where the wife dies after verdict for the defendant, costs are allowed against the husband. Fowler v. Shearer, 7 31. 86. Where an executor or administrator fails in an action, costs are awarded de bonis propriis. Hardy v. Call, 16 530; Burns r>. Fay, (14 P.) 31 8; Pierce v. Saxton, (14 P.) 31 274; Greenwood v. McGilvray, 120 516. 87. Formerly there was a distinction, where the action had been commenced by or against the decedent, but this is now abolished. Brooks v. Stevens, (2 P.) 19 68; Healy v. Root, (11 P.) 28 389. As to the present statute, see G. S., Ch. 128, §§ 6, 7; P. S., Ch. 166, §§ 6, 7. 88. The statute allows two executions, and the one against the estate may be stayed by in- solvency proceedings, while the one de bonis propriis may be issued. Greenwood v. McGilvray, 120 516; Perkins t>. Fellows, 136 294. 89. And if one execution only is issued, a levy under it is void. Look v. Luce, 136 249. 90. The same rule holds where the defendant recovers upon a declaration in set oft. Perkins «. Fellows, 136 294. 91. If there was a reasonable cause for bring- ing or defending the action, the costs may be allowed the executor or administrator in his account in the probate court. Greenwood v. McGilvray, 120 516. See, also, Burns «. Fay, (14 P.) 31 8; Pierce «. Saxton, (14 P.) 31 274. 92. If a trial justice, in an action against an administrator, renders judgment for damages and costs against the estate, and an execution issued thereupon is declared illegal, an order of the superior court, that execution shall issue against the estate for damages only will be affirmed by this court, upon the plaintiff's en- tering a remittitur for the costs. Look «. Luce, 140 461. 93. In this Commonwealth, an infant plaintiff who fails, is, and his next friend is not, liable for the costs. Smith v. Floyd, (1 P.) 18 275; Cran- dalli). Slaid, (11 Met.) 52 288. Contra, Blood v. Harrington, (8 P.) 25 553, overruled pro tanto. 94. Although the writ states that the plain- tiff "sues in his own right, but with intent to COSTS, II, (1), (2). 299 benefit A. thereby," the plaintiff is, and A. is not, liable for the costs. Lapham v. Almy, 105 391. 95. Aliter, where, under the former statute, the judge of probate was plaintiff in an action on a probate bond. Dawes v. Gooch, 8 488; Paine v. Hapgood, (13 P.) 30 153. 96. Where a writ is amended by striking out a plaintiff's name, upon terms which are com- plied with, and the other plaintiff recovers, the defendant cannot have costs against the former. Richardson «. Wolcott, (10 A.) 92 439. II. Costs in fabticulak Proceedings. (1.) Exceptions; double costs. 97. Upon sustaining exceptions in a criminal cause, the costs of the papers are to be paid by the Commonwealth. Comm. v. Evans, (10 G.) 76 463. 98. "Where each party files exceptions ■which, are overruled, each is entitled to costs. Shattuck v. Woods, (3 P.) 20 267. 99. But where one party waives his excep- tions and prevails on those of the other, the latter cannot have costs against him. Dewey v. Humphrey, (5 P.) 22 187. 100. A rule of the common pleas, which pro- vides that a party, omitting seasonably to file the papers to make up the record, shall pay the costs of the party answering, upon an applica- tion for an order for leave to do so, requires him also to pay the costs of the supreme court upon exceptions, although they are dismissed. ;». Parker, (7 G.) 73 172. 101. If a party excepts where an appeal is the proper remedy, no costs can be recovered by the other for neglect to enter the exceptions Piper «. Willard, (10 P.) 27 34. 102. A plaintiff, who, upon a new trial granted upon exceptions, recovers less than upon the former trial, is entitled to costs, al- though he has collected the former recovery by execution. Framingham Man. Co. •&. Barnard, (2 P.) 19 532. 103. As to costs upon dismissal of exceptions upon a submission to referees, see Dean v. Dean, (2 P.) 19 25. 104. The provision of the statute, allowing double costs upon frivolous exceptions, is not applicable to a frivolous appeal. Delaney ». Towns, (1 A.) 83 407; Ames v. Stevens, 120 218. 105. Double costs upon frivolous exceptions cannot be given unless moved for. Norris v. Lynch, 121 586. 1( ? 6 - Tn e question whether the exceptions are mvolous, immaterial, or intended for delay," so as to justify the court in awarding double costs, is to be determined by the court itself upon the bill of exceptions, without evidence or argument. Blackinjton v. Johnson, 126 21. <2.) Review. 107. A review is a new action, and the party who obtains in it a result, more favorable to him than in the original action, is the prevailing party, although the original judgment was re- covered by default. . Williams v. Hodge, (11 Met.) 52 266; Williams v. Williams, 133 587. 108. Where A sued B in contract, and B filed a general denial and a declaration in set off, and was defaulted, and judgment was rendered against him for $1,000; whereupon B brought a writ of review, and upon the trial A had a verdict of $1, B is entitled to costs under P. S., Ch. 187, §§ 34, 35, although A's recovery was reduced by set off upon the trial on the review. Williams v. Williams, 133 587. 109. Under the corresponding provision of the former statute, R. S., Ch. 99, §§ 11, 12, JG. S., Ch. 146, §§ 33, 34, the party prevailing in review recovers costs of that suit; but the court, on granting a review upon petition, may impose such costs as it thinks reasonable; and unless it does so at that time, the prevailing party recovers costs. Williams v. Hodge, (11 Met.) 52 266. 110. The former provision, although it en- titled the defendant to costs of the review, if he obtained a reduction of damages, did not entitle him to the costs of the former trial, unless the judgment was wholly reversed. Billerica v. Carlisle, 2 158; Lincoln*. Goulding, 3 234; Johnson v. Wetherbee, (3 P.) 20 247. 111. Where, in trespass against three, judg- ment was rendered against all, and on review a verdict was rendered against two only, the third, who had not paid the first judgment, was allowed cost) of travel and attendance of his witnesses and himself upon both trials. Durgin v. Leighton, 10 56. 112. Costs may be given upon a petition for a review. Davenport v. Holland, (2 C.) 56 1. 113. Under St 1784, Ch. 28, § 9, the court refused the petitioner costs where a review was granted, the mistake being only a miscalcula- tion of interest. Ilsley v. Knight, 1 467, 114. Under the same statute, the plaintiff in replevin was not entitled to costs, where he failed again upon the review, but smaller dama- ges were assessed to the defendant. Bruce v. Learned, 4 614. 115. Under the same statute, in an action in which a debt, or damages, or lands were de- manded, the plaintiff who reviewed could not have costs, unless he supported his demand to more money or lands, and the party in whose favor an error was corrected was deemed the prevailing party. Bruce v. Learned, 4 614. 116. Where the petitioner was entitled to his review as of right, the court refused, under the statute of 1784, to allow the respondent costs on a denial of a petition which was not vexatious. Byrnes v. Piper, 5 363. » 117. If the plaintiff in a review became non- suited, because he was not legally entitled to a 300 COSTS, II, (3), (4), (5). review, the defendant had costs under the statute of 1784. Treat v. Hathaway, 7 503. (3.) Error; double costs; Increased Interest. 118. Under G. 8., Ch. 146, §§ 16, 17; P. S„ Ch. 187, §§ 13, 14, the defendant in a criminal cause, who obtains by reversal a lesser sentence is entitled to costs. Haynes 1>. Comm., 107 194. 119. At the time of the enactment of these provisions in 1843 and 1851, upon the reversal of a judgment for error of excess in the sen- tence, the only judgment was for the discharge of the prisoner. Shepherd «. Comm., (2 Met.) 43 419; Britton?). Comm., (1 C.) 55 302; Haynes v. Comm., 107 194. 120. Formerly no costs were allowed upon the reversal of a judgment in a civil cause, for error in law, or where the writ was quashed as having been improperly issued. Howe v. Gregory, 1 81; Berry 1>. Bipley, 1 167; Brown v. Austin, 1 208; Durell v. Merrill, 1 411;Mountfort v. Hall, 1 443; Knapp ». Crosby, 1 479; Smith v. Franklin, 1 481; Nelson v. Andrews, 2 164; Brown v. Chase, 4 436; Jarvis v. Blanchard, 6 4. 121. And costs were allowed upon a reversal for error in fact, only where the party prevail- ing below was in fault. Blanchard v. Wild, 1 342; Knapp v. Crosby, 1 479. 122. Under B. S., Ch. 112, § 14; G. S., Ch. 146, § 10; P. S., Ch. 187, § 7, on a writ of error to reverse a judgment by default, where the writ was served on the fourteenth day be- fore the return day, the defendant was allowed double costs, and nine per cent interest. Butler v. Fessenden, (12 C.) 66 78. 123. The provision of the R. S. did not ap- ply to writs brought before it took effect. Gay 9. Bichardson, (18 P.) 35 417 CI.) Probate; Insolvency. 124. The present provision as to costs in pro- bate causes, P. S., Ch. 156, § 35, is a re-enact- ment of G. S., Ch. 117, § 25, which made no material change in R. S., Ch. 83, § 47; and the latter was derived from St. 1783, Ch. 46, § 4, and St. 1817, Ch. 190, § 44. Under all these statutes, the discretionary power of the court relates only to the party chargeable with costs, and the amount allowed is only taxable costs, not counsel fees. Brown v. Corey, 134 249; Morrill v. Wiseman, 134 252, note. See, also, Swan v. Picquet, (4 P.) 21 465; Guild v. Guild, (2 Met.) 43 229; Morrison v. McDermott, (6 A.) 88 122. 125 The probate cannot allow costs, after a final decree has been entered in the controversy in which the costs accrued. Lucas ». Morse, 139 59. 126. On appeal from a judge of probate, the court will not allow costs, as a general rule, unless the appeal is frivolous or unfounded. Osgood v. Breed, 12 525; Arms * Lyman, (5 P.) 22 210; Woodbury „' Obear, (7 G.) 73 467; Waters v. Stick- ney, (12 A.) 94 1; Chapin v. Miner 112 269. 127. But an executor appellee was allowed costs on affirmance in Nickerson v. Buck, (12 C.) 66 332. 128. G. S., Ch. 92. § 20, did not prevent the court from refusing costs to either party, upoa appeal from the probate of a will, where the issue was the testator's sanity, etc. See now P. S., Ch, 156, § 19. Chapin v. Miner, 112 269. 129. Where a widow prevails upon two suc- cessive appeals from the probate court, she will be allowed costs. Allen v. Allen, 117 27; Slack «. Slack, 123 443. 130. Where the assignee of an insolvent debtor appeals from the allowance of a claim against the debtor, and on the trial recovers judgment for a less sum, he is entitled to ccsts under St. 1838, Ch. 163, §4. Stevens v. Hale, (7 Met.) 48 85. 131. Where a creditor of a decedent's estate, represented insolvent, whose claim is wholly or partly rejected by the commissioners, sues, and fails to recover more than was allowed him by the commissioners, the executor or administra- tor is entitled to his costs. Dodge v. Breed, 13 537. 132. But if the administrator gave notice of his dissatisfaction with the allowance of the claim, the creditor is entitled to costs. Blake «. Dennie, (15 P.) 32 385. (5.) Real actions. 133. If a disclaimer has not been pleaded in a real action, the tenant cannot have his costs under G. S., Ch. 134, § 12; P. S„ Ch. 173, § 9, although there is an agreed statement of facts, upon which the court gives judgment, as upon a disclaimer. Esty v. Currier, 98 500- 1 34. Non tenure may be presented in a specifi cation of defence with the general issue. Truro ». Freeman, 123 187. 135. The tenant is entitled to costs upon sus- taining a demurrer to a replication to a dis- claimer. Favour v. Sargent, (6 P.) 23 5. 136. Where the tenant in a single plea dis- claimed as to part, and denied disseisin as to the residue of the land, and the jury found that he did not disseize, and assessed damages upon the disclaimer, the demandant had costs. Richards v. Randall, (4 G.) 70 13. See, also, Wells v. Osborn, 2 446. 137. Where a disclaimer applies to the entire premises, and the tenant has not unjustly ob- tained or withheld possession of any part, he has his costs. Prescott v. Hutchinson, 13 439. [For rulings in cases where the title to laneL etc is concerned in a personal action, see ante, 1, («-J COSTS, II, (6), (7), (8). 301 (6.) Flowing lands, and other water causes. 138. Under R. S., Ch. 116; G. 8., Ch. 149, § 82; P. S., Ch. 190, § 87, where the jury return that the complainant is entitled to no damages, the respondent is the prevailing party, and enti- tled to costs, although they also return that the dam shall be left open during part of the year. Fisher v. Johnson, (2 A.) 84 436. 139. Where the complainant obtains judg- ment, he is entitled to the costs of former trials, upon which verdicts in his favor were set aside. Fitch v. Stevens, (2 Met.) 43 506; Richardson «. Curtis, (2 G ) 68 497. 140. Where separate warrants are issued upon two or more complaints, for flowing by the same dam, and the complainant prevails, he has costs for each. Richardson v. Curtis, (2 G.) 68 497. 141. The compensation of the presiding offi- cer is in the discretion of the court, whose decision thereupon cannot be reviewed. Richardson ». Curtis, (2 G.) 68 497. 142. The prevailing party is entitled to costs for the terms, during which the cause was re- ferred to surveyors, to ascertain the effect of the dam in raising the water. Richardson v. Curtis, (2 G.) 68 497. 143. Where the law requires several warrants to be tried before the same jury, the sheriff's trial fees are the same as if there was but one warrant, and are to be apportioned among the causes. Wilmarth v. Knight, (14 G.) 80 112. 144. Where water rights are taken by a water company to supply a town with pure water, under St. 1880, Ch. 179, costs cannot be taxed against the water company, upon an award by a sheriff's jury of larger damages than were awarded by the county commission- ers, but they are payable from the county treasury. Dickinson v. Amherst Water Co., 139 210. (7.) Partition. 145. Notwithstanding St. 1877, Ch. 106; P. S., Ch._178, § 29, if, after judgment upon the commissioners' report for partition, and a continuance upon the question of costs, the petitioner dies, his administrator cannot be permitted to appear and have costs against the respondent. Richards v. Richards, 136 126. 146. Before the statute of 1877, the petitioner could not have against the respondent, the . costs of the trial of an issue, to determine whether the commissioners have set off to the petitioner land, of which the respondent was seized in severalty, although he prevailed. Dudley v. Adams, (5 A.) 87' 96. 147. Where partition is decreed against the respondent's opposition, the costs taxable against him are only those between his answer and the verdict. Powell v. Jenny, (11 A.) 93 104. 148. For ruling upon questions of costs in partition under St. 1786, Ch. 53, since superse- ded by G. S., Ch. 136, § 19; P. S., Ch. 178, § 18, see Symonds v. Kimball, 3 299; Swett v. Bussey, 7 503; Reed v. Reed, 9 372; ^aine «. Ward, (4 P ) 21 246; Loud v. Penniman, (19 P.) 36 539. (8.) Trustee process. [See, also, Trustee. Process, V, (1).] 149. Where the trustee files an answer at the first term, either admitting his liability, or show- ing that he is entitled to his discharge, and th( plaintiff takes no further steps thereupon, until after judgment charging or discharging him, the trustee is not entitled to costs at subsequent terms where the cause was not disposed of be- tween the principal parties. Wasson v. Bowman, 117 91; Haw- kins v. Graham, 128 20. 150. And generally, where no claimant inter- venes, and the whole litigation, after the trus- tee's answer, is between the original parties, he has no occasion and no right to be heard, and cannot charge costs therefor. Croxford «. Mass. Cotton Mills, (15 G.) 81 70; Morrison v. McDermott, (6 A.) 88 122;* Washburn «. Clarkson, 123 319. •151. The rule was the same under the act of 1794, the R. S., and the G. S., notwithstanding changes of expression, and as to the amount allowed. Hoyt v. Sprague, (12 P.) 29 407; Crocker v. Baker, (18 P.) 35 407; Hol- brooke Waters, (19 P.) 36 354; Wasson v. Bowman, 117 91. 152. Upon this point, dicta, in Morrison v. McDermott, (6 A.) 88 122, and Kellogg *. Waite, 99 501, overruled in the case last cited. 153. The trustee is not entitled to an attor- ney's fee, or to any allowance for counsel fees, except in the discretion of the court, and the exercise of such discretion cannot be reviewed on appeal. See G. S., Ch. 142, § 60; P. S., ch. 183, § 73. Holbrook t>. Waters, (19 P.) 36 354; Hawkins v. Graham, 128 20. See, also, Adams v. Cordis, (8 P.) 25 260. 154. But the trustee has a right to be heard upon the validity of an assignment to an ad- verse claimant, and is entitled to costs for attending for that purpose. Washburn v. Clarkson, 123 319. 155. If the writ is returnable in a county other than that in which the trustee resides, he will be discharged with edsts, on his objection. Wilcox v. Mills, 4 218. 156. Where, after the commencement of an action, the defendant is summoned in another action as the trustee of the plaintiff, and is charged, and pays the debt on execution, neither party is entitled to costs in the former action. Foster v. Jones, 15 185. 157. The plaintiff in the trustee process is en- titled to costs against the defendant after a de- fault, until a final decision as to the trustee. Wells ». Banister, 4 514. 302 COSTS, II, (8), (9). 153. If a trustee process is dismissed for want of a declaration, the person summoned is entitled to his costs. • Brown v. Seymour, (1 P.) 18 32. 159. If the writ served is not entered, the de- fendant, appearing pursuant to the summons served upon him, and filing a complaint at the first term, is entitled to judgment fc.r his costs; and the person summoned as trustee has the same right, and it is not affected by his filing an answer. Gilbreth v. Brown, 15 178; Lombard «. Oliver, (5 G,) 71 8; Cardival t. Smith, 109 158; Duffees. Call, 123 318. 160. A trustee charged, who appeals to the supreme judicial court and is there charged also, is not entitled to costs upon his appeal. Ball v. Gilbert, (12 Met.) 53 397; Kel- logg «. Waite, 99 501. 161. A discharge as trustee, by reason of a discharge in insolvency obtained after answer, entitles the Irustee to his costs. Penniman v. Mathews, (3 C.) 57 341. 162. R. S-, Ch. 109, § 41; G. S., Ch. 142, § 42; P. S., Ch. 183, § 53, as to where the trus- tee answers anew to a scire facias against him, extend to the costs. Thompsons. Lowell M. Shop, (4 C.) 58 431. 163. The death of the defendant entitles the trustee to his discharge with costs. "Wilmarth v. Richmond, (11 C.) 65 463. 164. If a trustee process is brought against two defendants and two trustees, describing the defendants individually and not as partners, and the trustees as partners only, the latter are entitled to only one bill of costs, although they put in four answers. Gerry ®. Gerry, (10 A.) 92 160. 165. Trustees charged on their answers in a justice's court, are not entitled to travel fees or term fees, upon an appeal by either party upon the main issue. O'Donnell «. Mclntire, 99 551. 166. Where property is attached against B, defendant in an action brought by A, and B is summoned as A's trustee, both actions being entered at the same term, and B, being charged, pays the debt, and during the same term judg- ment for the plaintiff's costs is given in the ac- tion of A against B, full costs are allowed to the time of such judgment, including fees for keeping the attached property after payment by the trustee. United States M. Co. v. Clark, 119 163. 167. A trustee discharged cannot recover his costs against the indorser of the writ. Chapman v. Phillips, (8 P.) 25 25. 168. The question as to the amount which the trustee may retain for costs, cannot be raised in a suit by the principal debtor against the trustee, for a balance in his hands, but only by appeal from the taxation. 66 C ^31 glUin *' W ' Railroad ' < 13 C -> 169. As to the remedy of the trustee, where his costs exceed the sum for which he is charged see Miller s. Carrier, (11 G.) 77 19. 170. For other rulings under the former stat- utes, now abrogated by, or incorporated into the G. S. and the P. S., see Denham v. Lyon, 1 15; Wilcox t MiUs, 4 218; Wilcox v. Mills, 4 507J Lee v. Babcock, 5 212; Touro v. Coates' 10 25; Rivers v. Smith, (i P.) 18 164- Chapman «. Phillips, (8 P.) 25 25 : Piper v. Willard, (10 P.) 27 34; Burn- side v. Newton, (1 Met.) 42 426, (9.) Damages for taking lands. [See, also, Highway, IV; Railroad. IV; Town, VI.] 171. Proceedings by a land owner to review by a jury the county commissioners' or select- men's estimate, for his lands taken for a high- way or railroad, are not within the provisions of the statute, giving costs to the prevailing party in an action, but depend entirely on the special provisions of the statute relating to such proceedings. Comm. v. Carpenter, 3 268; Hamp- shire & H. Canal Co. «. Ashley, Q5 P.) 32 496; Baker v. Thayer, (3 Met.) 44 312; Williams v. Taunton, 126 287; Gifford «. Dartmouth, 129 135; Childs 1>. New Haven, etc., Company, 135 570. 172. So of a petition for the revision of an assessment for betterments. Freed v. Lynn, 126 290. 173. And under St. 1873, Ch. 261, a land owner obtaining a verdict in his favor could not have costs against the town. Gifford v. Dartmouth, 129 ±35. [But now see P. S., Ch. 49, 9 105.] 174. But tne petitioner who prevails, upon an application for a sheriff's jury to assess his damages for lands taken by a railroad corpora- tion, is entitled to his witnesses' fees, and the officer's fees for summoning them. New Haven & N. Co. v. Northampton, 102 116; Childs v. New Haven & N: Co., 135 570; overruling, upon this point, Comm. v. Boston & M. Bailroad, (3 ■ C.) 57 25; Gray v. Lowell . Makepeace, 108 233. 224. Fees cannot be taxed for witnesses, who have not certified as to their travel and attend- ance. Bacon v. Crandon, (15 P.) 32 79. 225. The certificate of a witness is not con- clusive; and, if the allowance of his fees is dis- puted, it must appear from all the evidence before the clerk, or the court on appeal, that he was paid or attended, and that his attendance was procured by the party reasonably and in good faith. Miller v. Lyon, (6 A.) 88 514. See also, Cook «. Holmes, 1 295. 226. Pees of a witness who attended upon re- ?[uest, may be allowed, upon proof of good aith, etc., although he was not summoned or examined. Farmer v. Storer, (11 P.) 28 241. 227. As to the rate allowed, where it has been changed by statute since the witness at- tended, see Bichardson v. Curtis, (2 G.) 68 497. 228. A witness's travel from another state, can be taxed onlyf rom the boundary line. Melvin v. Whiting, (13 P.) 30 184. 229. An attorney, summoned and attending as a witness, but having professional business at the court, can have fees only for the day when he was examined, or for the time of his deten- tion after finishing his own business. Parks v. Brewer, (14 P.) 31 192. 230. The defendant in a criminal cause can- not be sentenced to pay, as part of the costs, the fees of witnesses who attended and testi- fied, only with respect to counts upon which no verdict was given. Comm. v. Ewers, (4 G.) 70 21. 231. Where two or more actions between the same parties were together referred, and one award was made, the travel and attendance of witnesses, who were summoned and paid in all the actions, and attended, may be taxed in each 67 y 420 Berkshire Woollen Co., (1 G.) Vol. 1—39 232. And where two actions against a railroad corporation, one by husband and wife, and one by the husband alone, to recover damages for an injury to the wife, are tried together, fees for travel and attendance may be taxed in each for witnesses attending in both. Day ». Berkshire Woollen Co., (1 G.) 67 420; Taylor v. Vermont & M. Rail- road, (1 G.) 67 422, note. 233. In a capital cause, the court cannot al- low expenses and fees of experts not appointed by it, and employed in behalf of the prisoner, without the approval of the attorney-general; but, if employed with his approval, a reasona- ble compensation may be allowed. In re Clark, 104= 537. 234. In a criminal cause, if a defendant is discharged upon his writ of error, he is entitled, against the Commonwealth, to his travel fees, although he was imprisoned under the sentence, pending the writ. Britton ii. Comm., (1 C.) 55 302. 235. Travel fees for service of writs, etc., cannot be allowed unless indorsed thereupon: the rule applies to a precept in a highway case. Weston v. Weston, 102 514; Briggs v. Taunton, HO 423. 236. Formerly a corporation could not have travel fees. Kennebeck Purchase v. Crossman, 6 458. 237. The statutory restriction of the plaintiff to one term fee upon default, does not apply, where the defendant avails himself of the right to be heard upon the assessment of damages, and of moving that it be made by a jury. Galligan v. Clark, 119 83. 238. A term fee and travel are chargeable for each term, while the cause is before an auditor or held under advisement. Bliss v. Tripp, (16 G.) 82 287. 239. When it is referred, travel and attend- ance till the entry of the rule may be taxed, for the term where the rule was entered; travel and attendance till acceptance, recommitment, etc., at the term where that is done; and travel and one day's attendance at each intermediate term. Hayward v. Richie, 7 266. 240. Although the court holds that an action was discontinued, the defendant can charge for attendance thereafter until it is finally disposed of. Earle v. Hall, (22 P.) 39 102. 241. Under St. 1882, Ch. 264, § 1, where no question is carried to the full bench, the pre- siding judge may allow the prevailing party such a number of term fees as he thinks just. Leonard v. O'Reilley, 137 138. 242. Where, upon the defendant's death, the action is continued two teims to summon the administrator, the latter can tax costs for travel and attendance at those terms. Bacon v. Cranuon, (15 P.) 32 79. 243. A defendant from out of the Common- wealth can charge travel, under the R. S., only to and from the boundary. White v. Judd, (1 Met.) 42 293. 244. Where the defendant has been summon- ed in another action as trustee of the plaintiff, 306 COUNSELLOR— COUNTY COMMISSIONERS. costs will not be allowed the plaintiff in the former action, for the time of the continuance thereof for that reason. "Winthrop v. Carlton, 8 456 245. Where the action was originally brought in the supreme judicial court, and entered at a law term, and the defendant appeared, but filed no plea and made no defence, the plaintiff's costs of attendance were taxed for three days only. Hall v. Durell, (9 P.) 26 328. 246 Where, upon an appeal from the taxa- tion of costs, the record does not show the par- ticulars of a deposition, an allowance of a fee of ten dollars therefor will not be revised. Kellogg v. Kimball, 139 296. 247. So as to an allowance of three dollars for keeping, etc., attached property. Kellogg v. Kimball, 139 296. Counsellor, [See Attorney at Law.J Counterfeiting. [See Forgery and Counterfeiting.] County. 1. The legislature may constitutionally au- thorize and require a county or a town to raise and appropriate money for any public purposes within its limit, or for the reimbursement of money paid for such purposes. Agawam «. Hampden Co., 130 528. [See, also. Bridge, II, (1) ; Constitutional Law, II, W-\ 2. The legislature may, also, in changing county boundaries, provide how the property and debts shall be divided, or intrust the divis- ion to the courts, without the intervention of a jury. Stone v. Charlestown, 114 214. LAs to the quagi corporate quality of counties, towns, and cities, see Corporation I. (1).] 3. The inhabitants of a county are individu- ally liable for the debts of the county. Hawkes v. Kennebeck, 7 461. 4. The court of sessions is to be considered as the agent and representative of the county, in all matters touching its finances and general prudential concerns; and the appointment by it of commissioners, and commencing an action under a statute, constitute an acceptance of the statute by the county. Hampshire v. Franklin, 16 76. County commissioners. [As to the powers and authority, ana proceedings of and before county commissioners, see, also. Certiorari; Highway, III, IV; Mandamus; Railroad, II, III; Town and city, VI. 1 1. For variors rulings upon an information, in the nature of a quo warranto, as to the suffi- ciency of a notice to the inhabitants of a town of a town meeting, whereat county commission- ers were elected, and the proceedings of such election, as affecting the validity of the defend- ant's election as county commissioner, see Commi v. Smith, 132 289. 2. Under G. S., Ch. 7, § 25; P. S„ Ch. 7, 8 48, the board of examiners cannot receive or consider a certificate of the votes, given for county commission rs at a town meeting, signed "Attest, J. S., town clerk," but not showing that he is town clerk, or that it is a copy of the town record. Luce v. Mayhew, (13 G.) 79 83. i 3. The duties of the board of examiners are merely ministerial; they are confined to the re- cords of votes returned, and cannot consider extrinsic evidence; and a mandamus will not lie to compel them to count votes, containing only the initial letter of a candidate's Christian name. Clark v. Hampden Board of Ex'rs, 126 282. 4. For rulings under obsolete statutes, relating to the election of county commissioners, see Rutland v. Worcester Com'rs, (20 P.) 37 71; Ex parte Strong, (20 P.) 37 484; Taft v. Adams, (3 G ) 69 126. 5. The clerk of the county commissioners is the proper officer to attest copies of their records, and the reception of the chairman's certificate thereof is error, which cannot be cured by a proper certificate, at the hearing of a motion to set aside the proceedings. Rich v. Lancaster Railroad, 1 14 514. 6. The clerk is bound to obey the directions of the commissioners in making up the records, Ellis v. Bristol Com'rs, (2 G.) 68 370. 7. The board of county commissioners has the same power as any court, to amend its records according to the truth, upon such evidence or recollection of the members present as it deems sufficient. Gloucester ». Essex Com'rs, 116 579. See. also, Ellis v. Bristol Com'rs, (2 6.) 68 370; Andover n. Essex Com'rs, (5 6.) 71 393; Farmington R. W. P. Co. v. Berkshire Com'rs, 112 206. 8. Where they act within their jurisdiction, their records cannot be impeached collaterally. Brewer v. Boston, etc., Railroad, 113 52. 9. A petition to county commissioners is in the nature of a civil action, and the county commissioners, though not strictly judicial of- ficers, when exercising jurisdiction over an ap- plication for a jury, wield the powers formerly exercised by the courts of sessions and of com- mon pleas, and now by the superior court, and may appropriately be called a court. Stone v. Charlestown, 114 214. See, also, Springfield v. Hampden Com'rs, (10 P.) 27 59; Ex parte Strong, (20 V.f; 37 484; Grand J. Railroad ». Middlesex? Com'rs, (14 G.) 80 553. 10. County commissioners must act together and by a majority vote; in disputed cases, au present must hear the testimony, but after such a hearing, a majority may sign an assessment of damages. Merrill v. Berkshire, (11 P.) 28 269: COUNTY COMMISSIONERS— OOUET MARTIAL. 307 Jo lyn v. Franklin Com'rs, (15 G.) 81 567; Plymouth v. Plymouth Com'rs, (16 G.) 82 341; Reed «.. Scituate, (5 A.) 87 120. 11. A written notice to, the chairman is not sufficient, to charge the county with the penalty for failing to erect bounds, at the termination of a county road, after notice by the land owner. Ilsley ». Essex, (7 G.) 73 465. ' 12. Under P. 8., Ch. 22, § 22, county com- missioners may make such contracts for public works, as they deem for the best interests of the county, and are not required to accept the lowest proposal. Mayo v. Hampden Com'rs, 141 74. 13. "Where the expense of necessary additions, etc., to county buildings, would exceed the sum which the commissioners are authorized to expend, it is their duty to submit the matter to the legislature. Dist.-Att'y v. Bristol Com'rs, (14 G.) 80 138. 14. Under St. 1827, Ch. 77, a warrant on the county treasurer for a sum due for constructing a road may be drawn, and a valid demand therefor may be made, at other times than at a stated meeting. Hull v. Berkshire, (9 P.) 26 553. 15. An agreement by one of' the commis- sioners to waive an objection, that a deputy sheriff is disqualified by interest from presiding in a highway case, is not binding on the county; but the objection may be waived by the attorney of record for the county. Merrill v. Berkshire, (11 P.) 28 269. 16. County commissioners cannot be allowed to file separate answers to a petition for a certiora/ri to quash their proceedings. Plymouth v. Plymouth Com'rs, (16 G.) 82 341. 17 They cannot lawfully charge fees to parties litigating before them, and such fees, when paid, cannot be recovered under a con- tract to secure a right of way. New Haven & N. Co. ■». Hayden, 117 433. 18. A county commissioner is not liable to the county, for a payment to him by the master of the 'house of correction, for his expenses in selling articles manufactured by the prisoners. Bristol County v. Gray, 140 59. 19. The fact that a son 'and a brother of a county commissioner joined with others in a petition for a road, does not disqualify him from acting. Wilbraham v. Hampden Com'rs, (11 P.) 28 322. 20. But if the county commissioner is the brother-in-law of one entitled to damages on laying out a highway, the proceeding is void, and cannot be rendered valid by any subse- quent consent or release. Taylor v. Worcester Com'rs, 105 225. 21. Where a statute authorized the county commissioners to remove certain dams, for the purpose of drainage in certain towns, and pro- vided that the damages therefor should be assessed, as upon the laying out of a highway, a commissioner was not disqualified from acting by his residence in one of the towns. Phillips 258. Middles. x Com'rs, 122 22. Where a special commissioner is substi- tuted for a commissioner who is in fact not dis- qualified, the proceedings will be quashed, if seasonably objected to. Danvers i>. Essex Com'rs, (2 Met.) 43 185. 23. Upon a petition for an alteration in the crossing of a railroad by a highway, a commis- sioner, residing in the city or town, is disquali- fied by G. S., Ch. 17, § 12; P.S., Ch. 22, § 17, unless the board cannot be organized without him. Boston & A. Railroad v. Hampden Com'rs, 116 73. 24. So under a statute authorizing the laying out of certain bridges as highways, where the commissioner resides in a town, where one_ of the bridges is wholly or partly situated. Haverhill Bridge v. Essex Com'rs, 103 120. 25. Under the R. S., the presence of one commissioner, who resided in the town affected, invalidated the proceedings, unless the irregu- larity was waived; and the presence of some citizens of a town was not a waiver by that town. Tolland «. Berkshire Com'rs, (13 G.) 79 12. 26. Eor other rulings upon the question of disqualification, under the R. S., and the statute of 1827, see Ipswich ». Essex Com'rs, (10 P.) 27 519; Wilbraham v. Hampden Com'rs, (IIP.) 28 322; Rutland v. Worcester Com'rs, (20 P.) 37 71; Danvers v. Essex Com'rs, (2 Met.) 43 185; Monterey v. Berkshire Com'rs, (7 C.) 61 394. 27. The proceedings of county commission- ers will not be quashed, because the petitioner for a highway, after the hearing, privately urged upon thorn the importance of the way, and expedition in their action; it appearing that he acted without improper motives, and that the commissioners were not influenced by him. Blake ». Norfolk Com'rs, 114 583. 28. Nor because he furnished, during the proceedings, lunches to the commissioners and all others interested, such being the custom in the county. Blake *. Norfolk Com'rs, 114 583. County road. [See Highway.) Court martial. [In the militia law of 1878, St. 1878, Ch. 265, 68 135 to 143 ; P. S., Ch. H, 88 139 to 147, are ample and detailed regulations respecting: courts martial, which super- sede the former statutes relating thereto. The fol- lowing cases were decided under theformer statutes. See, also, Militia.] 1. The supreme judicial court will not grant a certiorari to a court martial. Persons aggrieved must seek their remedies by actions at Taw. Ex parte Dunbar, 14 393. 308 COUET MAETIAL— COUETS. 2. SembU. that prohibition lies where the court exceeds its jurisdiction, otherwise it does not "Washburn ». Phillips. (2 Met.) 43 296. 3. Semble, that the approbation of the sentence of & court martial must be in writing, under the signature of the proper officer. Coffin v Wi.bour. (7 P J 24 149. 4 For additional rulings under the former statutes, supposed to be now obsolete, see As to sentences, Coffin v Wilbour; (7 P ) 24 149; Brooks » Daniels, (22 P.) 39 498. As to offences triable, Washburn D.Phillips, (2 Met.) 43 296. As to oaths of members, Coffin « "Wilbour, (7 P ) 24 149, Opin. of the Justices, (3 C ) 57 586. As to detailing members, Perter v Wainwright, (15 P.) 32 439; Brooks » Davis. (17 P ) 34 148. As to challenges and objections to members, oi the formation of the court, and waiver thereof, , Brooks v Davis, (17 P.) 34 148; Brooks v. Daniels, (22 P ) 39 498. As to the judge advocate, Coffin v Wilbour, (7 P.) 24 Brooks v Adams, (11 P.) 28 Brooks v Graham. (11 P.) 28 Opin. of the Justices, (3 C.) 57 5i 149 441 445 Court of common picas. |See, also. Appeal, II; Superior Court. The eourt was abolished, and its jurisdiction transferred to the superior court, by St. 1859, Ch. 196.] 1. As to the effect of the statute of 1859, upon proceedings pending when it took effect, see Comm. v. Rich, (14 G.) 80 335; Comm v. Skiffington, (14 G.) SO 381. 2. As to the effect upon similar proceedings of St. 1855, Ch. 449, abolishing the terms of the common pleas in Suffolk county, see Opin. of the Justices, (3 G.) 69 601. 3. As to the effect upon the jurisdiction of the common pleas of St. 1858, Ch. 45, giving to justices of the peace jurisdiction of offences punishable by fine not exceeding $50, or by imprisonment not exceeding six months, see Comm. ■». Hudson, (11 G.) 77 64; Comm. «. Rowe, (14 G.) 80 47. 4. For rulings relating to the jurisdiction of the common pleas under the former statutes, see "Under St. 1782, Ch. 11, civil actions for not more than 40s. Cleveland v. "Welsh, 4 591; Briggs v. Nantucket Bk., 5 94. Jurisdiction of writ de 7iomine replegiando. "Williams v. Blunt, 2 207. Estreated recognizance from municipal court, and scire facias thereupon. Comm. v. McNeill, (19 P.) 36 127. Fine for trespasses, under St. 1785 Ch 98 and St. 1800, Ch. 57. ' **' Comm. ■». White, (8 P.) 25 453 General rules as to jurisdiction, Comm. v. Knowlton, 2 530' Coram t>. Holmes, 17 336. Court of sessions. [Abolished by St.1821, Ch. 10a] _ 1. The court of sessions nevei had jurisdic tion of civil actions, its criminal jurisdiction was transferred in 1804 to the court of common pleas; and its functions, at the time of the con- stitutional amendment of 1821, were principally administrative Per Gray, Ch. J., in Comm. v awkes, 1 23 525, enumerating the subjects. See, also, Hampshire v. Frankiin, 16 76; Comm. v. Holmes, 17 336; InreVm' (15 P) 32 243; Dearborn v. Ames, (8G.) 74 1. [See, also, County, art. 4. j 2. Offences under English statutes, which were in force at the time of the emigration of our ancestors, are common law offences here, and jurisdiction thereof here vested immemorially in the court of sessions. Comm. v. Leach, 1 59. 3. See, further, as to the jurisdiction of this, court, Highway, and the following cases: Comm. v. Knowlton, 2 530; Comm;! v. "Waterborough, 5 257; Comm. .'v. Holmes, 17 336; Comm. « Hamp4ei»' Sessions, (2 P.) 19 414. Courts (in general). [See, also. Jurisdiction; Record; Removal oif Cause. For rulings relating to particulai courts, see the titles of those courts respectively.! 1. Any court of record has power to supply deficiencies or amend errors in its records, and any amendment thus made must be presumed to be in accordance with the facts. Bacon «. Lincoln. (2 C.) 56 124; Balch v! Shaw, (7 C.) 61 282; Pay ft "Wenzell, (8 C.) 62 315; Rugg v. Parker, (7 G.) 73 172; Batty ». Fitch, .(11 6.) 77 184, Marsh ». McKenzie, 99 64. 2. The district courts of the United State* exercise admiralty jurisdiction as courts of record. I Brown v. Bridge, 106 563. 3. The police court of Lowell is a court of record, within the statute of limitations, and tne act of congress relating to naturalization. Bannegan v. Murphy, (13 Met.) o* 251. LAs to the question for what purposes a Justice's eourt is or is not a court of record, see jusxius u« the Peace, II.] COVENANT, I. 309 Covenant [and action of contract heretofore known as covenant . I. General Rules. II. Covenants relating to real Prof erty (1.) Interpretation and effect (3.) Running of covenants with land. (3.; Warranty; quiet enjoyment. (4.) Against incumbrances. (5.) Seisin; right to convey. (6 ) To stand seized. III. Implied Covenants. [As to dependent and independent covenants, see Contract, IV (4) ; as to performance of covenants, see Contract, v; as to covenants in marriage set- tlements, see Husband and Wife, V. Generally, see, also, Condition, Contract; Basement, Landlord and Tenant, V, VI; Seal.) I. General Rules. 1. A promise to pay rent in an instrument under seal is a covenant, and the lessee's execu- tor or administrator is liable for rent, before and after the lessee's death, in one action Greenleaf «. Allen, 127 248 2. A covenant by a widow, with the owner of land, to forbear to claim her dower for a term of years, is not a release. Croade v. Ingraham, (13 P.) 30 33 [As to the effect upon a contract or a debt of a covenant not to sue, see Contract, VI, (2); Be- LEASE.] 3. A covenant to receive a debt in successive instalments, is not a bar to an action to recover the whole debt, if one instalment is not paid when due, although the others are not yet due. Upham v . Smith, 7 265 ; Reed v. Stod- dard, 100 425. 4. Where a deed from A to B, executed also by (J, recites that has received the considera- tion, and covenants to release the premisos from a mortgage, the effect of the covenant is not impaired by a recital, that C joins to release an equitable interest in the property Palmer v. Wall, 128 475. See, tor the converse of the rule, Bartlett v. Bart- lett, (4 A.) 86 440; Perkins ». Richard- son, (11 A.) 93 538. 5. Where one, before the time of perform- ance, disables himself to perform his covenant, he is liable at once to an action for a breach thereof; but not if he can remove the disability before performance. Hopkins v. Young, 11 302, Heard v. Bowers, (23 P.) 40 455. The first branch of this proposition denied in Daniels «. Newton, 114 530. 6. The grantor in a deed is liable on his cove- nants, although the grantee knew of an incum- brance or outstanding paramount title. Townsend v. Weld, 8 146; Harlow v. Thomas, (15 P.) 32 66. 7. A covenant by the lessee of a farm not to carry off any hay, etc., is not broken by a seizure and removal by his creditors. Smith «. Putnam, (3 P.) 20 221. 8. Where A and B entered into a covenant that B should cultivate A's farm, and deliver him half the grain after threshing; and before threshing, half was attached and carried away by a creditor of A; and A afterwards paid the judgment, but the grain was not returned, B was not liable for a breach of Ms covenant. Walker v. Pitts, (24 P.) 41 191 9 Where the assignee of an insolvent debtor, in trust foi creditors, covenanted to pay the creditors In a certain order, and one, entitled to precedence, gave him a written order to pay a subsequent creditor l;rst, this, not being under seal, is collateral and independent, and does not affect the covenant. Robertson «. Gardner, (11 P.) 28 146. 10. But a subsequent instrument, under seal, modifying a covenant, operates as a waiver thereof. McKenzie «. Rea, (6 P ) 23 83. 11. A guardian is not personally Uiable for breach of covenants, in an indenture of appren- ticeship of his ward. Blunt v. Melcher, 2 228, Holbrook v Bullard, (10 P ) 27 68. 12. But two guardians for different children of the same father, who sell their wards' estate under license from the probate court, are per sonally and jointly liable upon covenants of title contained therein; and so is an adminis- trator selling land in like manner, although in each case, the covenant is expressed to be in the capacity of guardian or administrator. Sumner ■». Williams, 8 162, Dona- hoe v. Emery, (9 Met ) 50 63. 13. See, as to the personal liability of an administrator under a covenant, for a demand in favor of one not claiming under his intestate, Watson v. Boylston, 5 411. .4. Where land is demised to one, his heirs or assigns, his administrator is liable on the covenants as assignee. Montague v. Smith, 13 396. 15. An officer who conveys land sold on execution, with a covenant that he has obeyed all the directions of the law, is liable, although it appears on the face of the deed that he has not proceeded regularly And such a covenant is broken by a subsequent neglect to return the execution Wade v Merwin, (11 P ) 28 280. 16. Where land is conveyed in violation of the laws of the state where it lies, although the deed is void, the covenants are not void, in favor of one who takes the land, without knowledge of the violation. Phelps «. Decker, 10 267. 17. Where the individual members of a cor- poration covenant for themselves and their heirs, in behalf of the corporation, they are personally liable. Tileston v. Newell, 13 406. 18. Where covenants are made with the rector, wardens, and vestry of a church to pay rent to the rector and wardens, the wardens cannot alone maintain an action for the rent. Montague v. Smith, 13 396. 19. An entire contract cannot be apportioned; but where the courts can give effect to a cove- nant in its spirit, and conform to the intention, 310 COVENANT, I; II, (1). as far as it can be gathered from an imperfect expression of it, by apportioning it, they will so construe it. Brown «. Vinal, (3 Met.) 44 533. 20. The usual covenants of warranty in a bill of sale of a vessel are broken, if, at the time of executing it, she is liable to condemnation for a breach of the embargo laws of the United States Ingersoll v. Jackson, 9 495. 21. But where the forfeiture did not attach till actual seizure, so that the purchaser could have successfully defended against it, but neg- lected to do so, he cannot recover on the cove- nant, although he was absent from the United States. Ingersoll v Jackson, 13 182, Inger- soll v. Jackson, 14 109. 22. A covenant by husband and wife, to con- vey their interest in land of the wife, is not satisfied by the tender of a deed conveying only the wife's interest. Pierce v. Harrington, (1 G.) 67 595. 23. A covenant by the owner of land, bind- ing his heirs and assigns, to do a certain act, when thereto requested, is broken by the assigns, if they neglect to do it after written request, addressed to all of them, and seasonably delivered at the dwelling-house of one. Morse v. Aldrich, (1 Met.) 42 544. 24. Upon a covenant In the assignment of an account, that, as the assignor believes, it is truly stated, the assignor is liable, if he knew it was falsely stated. Dorr i). Fenno, (12 P.) 29 521. 25. A covenant to assign a chattel, in as full a manner as another shall assign it to the cove- nantor, does not bind the latter to give a cove- nant of warranty, if the assignment to him contained no such covenant; nor does it bind him to procure the assignment to him to be registered. Morrill v. Worthington, 14 389. II. COVENANTS RELATING TO KEAL PROP- ERTY (1.) Interpretation and effect. I See Questions of Law. etc., art. 23.1 26 "Where a deed purported to convey only the right, title, and interest, acquired by P, by a deed of the collector of taxes upon a tax sale, (the same having been previously conveyed by P to the grantors, who had an estate in remain- der, at the time of the tax sale,) and the deed also contained the usual covenants against in- cumbrances and of warranty, the covenants do not estop the grantors from maintaining a writ of entry, founded upon their original title, and the invalidity of the tax sale. Sanford «. Sanford, 135 314. _ 27. And in a deed of all the grantor's right, title, and interest, the covenants of seisin, against incumbrances, of right to convey, and of warranty, are limited by the description, and are not broken by an eviction, under an incum- brance created by the grantor. Hoxie «. Finney, (16 G ) 82 332 See, also, Blanchard « Brooks, (12 P) 29 47, Allen v. Holton, (20 P.) 37 450; Sweet v. Brown, (12 Met.) 53 175. ' 28. So ruled with respect to a peculiar quali- fied warranty, in Miller v. Ewing, (6 C.) 60 34. 29 But where the deed uses language pur- porting to convey the property itself, the effect of the covenant is not limited by an addition to the description, to the effect that all the right title, and interest of the grantor is conveyed! ' Hubbard «. Apthorp, (3 C.) 57 419. 30 So where a particular title of the grantor is recited, the covenants apply to that title. Russ v. Alpaugh, 118 369. 31 If a deed contains covenants against all incumbrances, except one specified, and of gene- ral warranty, the latter is broken by an eviction under that incumbrance. Estabrook ». Smith, (6 G.) 72 573. 32 A deed by a father, with full covenants of warranty, does not in any event, bar, estop, or rebut his heirs to assert against the grantee, a title derived by inheritance from their mother. Buss v. Alpaugh, 118 369. 33. Qu., whether the rule is otherwise, to the extent of assets received, where administration has been taken out, and a breach occurs after the estate is settled. Russ v. Alpaugh, 118 369. 34. But a deed with full covenants of war- ranty estops the grantor, and those claiming under him, from setting up any subsequently acquired title, and such a title enures' to the benefit of the grantee, at his election, even if acquired after bankruptcy. Russ v. Alpaugh, 118 369. See, also, Somes «. Skinner, (3 P.) 20 52; Comstock v. Smith, (13 P.) 30 116; White v. Patten, (24 P.) 41 324; Trull v. Eastman, (3 Met.) 44 121; Sumner v. Barnard, (12 Met.) 53 459; Gibbss. Thayer, (6 C.) 60 30; Perry 0. Kline, (12 C.) 66 118; Blanchard v. Ellis, (1 G.) 67 195; Cole v. Raymond, (9 G ) 75 217; Sparhawk v. Bagg, (16 G.) 82 583 35. The rule extends to a married woman, conveying under a power, pursuant to the statute. Knight «. Thayer, 125 25 36 Aliter, before the statute Knight v Thayer, 125 25. See, also, Wight v. Shaw, (5 C.) 59 56, Lowell v. Daniels, (2 G.) 68 161, McGregors. Wait, (10 G) 76 72. See, however t Doane v. Willcutt, (5 G) 71 328. 37. But the grantee, if evicted, may elect either to claim a paramount title subsequently acquired by the grantor, or to recover upon the covenants. __ in , Blanchard v. Ellis, (1 G.) 67 _ 195; overruling, pro tanto, Somes v. Skinner, (3 P.) 20 52. 38. The rule extends to the husband of the grantor's sole heiress, claiming under a paia- mount title, where the grantor left assets greater than the value of the land. ' Bates ». Norcross, (17 P.) 34 14- COVENANT, II, (2). 311 39. B it an indenture of partition between tenants in common, containing mutual cove- nants for the quiet enjoyment by each of his portion, does not estop one from setting up an after acauired title to land assigned to another. Doane «. Willcutt, (5 G.) 71 328. [See, further„pn this question, Estoppel, II, (2).J 40. The fact that the grantee had knowledge of the outstandi: g title or incumbrance, and bought the land subject thereto, is no defence to an action upon a covenant for title, and will not reduce damages. Townsend v. "Weld, 8 146; Harlow v. Thomas, (15 P.) 32 66. (2.) Running of covenants with land. [See, also, Condition,!; Party- Wall. I 41. A stipulation by the grantee, in a deed poll, although relating to the land, is not a cov- enant, and does not run with the land. Martin v Drinan, 128 515; Kennedy v. Owen, 136 199. See, also, Dyer v. Sanford, (9 Met.) 50 395; Goddard v. Dakin, (10 Met.) 51 94; Morses. Cope- land, (2 G.) 68 302, Parish t>. Whitney, (3 G ) 69 516; Maine v. Cumston, 98 317; Bronson v. Coffin, 108 175; Ay- ling o. Kramer, 133 12. 42. But a personal obligation, thus imposed upon and assumed by a grantee, which is a re- striction as to the use of the land, may be enforced in eqaity against him, and subsequent purchasers, with notice. Parker ». Nightingale, (6 A.) 88 341; Peck v, Conway, 119 546; Kennedy ». Owen, 136 199. See, also, Minor «. Deland, (18 P.) 35 266; Newell v. Hill, (2 Met.) 43 180. 43. A receipt, not under seal, given to a rail- road corporation by grantors, acknowledging that the consideration was in full for fencing the track, is not a contract or covenant to fence, running with the land, which the railroad com- pany can enforce against a subsequent pur- chaser. Boston & A. Eailroad v. Briggs, 132 24 44. A covenant to a widow, in a lease by her of hei husband's land, to pay her a sum of money annually by way of rent, in considera- tion of her not claiming dower, is a personal covenant, not running with the land. Croade v. Ingraham, (13 P.) 30 33. 45. Assigns by deed, or heirs, are jointly liable on a covenant which runs with the land. Morse t> Aldrich, (1 Met.) 42 544. [See, also, Heibs, etc., II.] 46 A covenant for quiet enjoyment, in a lease for years, being a covenant infuturo, runs with the land, and passes to any person, as assignee in law, who becomes legally possessessed of the Shelton e. Codman, (3 C.) 57 318. 47. But the assignee of a covenant, running with the land, cannot recover for a breach thereof accruing before the assignment, as the breach does not run with the land. Shelton v. Codman, (3 C.) 57 318 48. A covenant against incumbrances, if broken, is generally broken when made, and so does not run with the land; but if the incum- brance enlarges the damages after assignment of the land, the assignee may recover thereon pro tanto. Sprague v. Baker, 17 586; Clark ». Swift, (3 Met.) 44 390; Whitney v. Dinsmore, (6C.) 60 124. Contra, Esta- brook v. Hapgood, 10 313. 49. But a covenant against incumbrances, coupled with a covenant of warranty, does not prevent a recovery upon the latter, after evic- tion of the assignee, upon an existing incum- brance. Thayer v. Clemence, (22 P.) 39 490; Kramer ». Carter, 136 504. 50. Covenants of seisin and of right to con- vey, if broken, are broken when the convey- ance is made, and therefore do not run with the land. Bickford v. Page, 2 455; Bartholo- mew «. Candee, (14 P.) 31 167; Tuayer 1). Clemence, (22 P.) 39 490. 51. If the grantor is not seized, a covenant of warranty is broken immediately, and does not run with the land; but a possessory title, good as against all but the true owner, suffices to enable the covenant to run. Slater v. Rawson, (1 Met.) 42 450. [See, also, post, II, (3).l 52. Although a covenant runs with the land, still the assignor may maintain an action for a breach, after assignment of the land, if, simul- taneously with the assignment, an agreement is made that he shall have the damages. Thompson i>. Shattuck, (2 Met.) 43 615. 53. For other instances, see, per Dewey, J. ,in Thompson v. Shattuck, (2 Met.) 43 615. 54 A covenant contained in a deed, that trie grantor will make and maintain a sufficient fence, runs with the land. Bronson «. Coffin, 108 175. 55. In order to make a covenant run with the land of the covenantor, so as to bind his heirs and assigns, the covenantee must have such an interest in the covenantor's land, as to amount to a privity of estate between them, and an interest in the nature of an easement, whether already existing, or created by the deed itself, suffices for that purpose. Bronson v. Coffin, 108 175. See, also, Wheelock «. Thayer, (16 P.) 33 68. Plymouth?). Carver, (16 P.) 33 183, Morse v. Aldrich, (19 P.) 36 449; Hurd v. Curtis, (19 P) 36 459; Morse o. Aldrich, (1 Met.) 42 544, Savage v. Mason, (3 C ) 57 500. 56. For a full discussion of the principles regulating the right of a subsequent grantee to enforce a covenant relating to the land, see Novcross v. James, 140 188. See, also, Ladd v Noyes, 137 151. 57. Where A conveys a quarry to B, bounded by other land of A, and covenants not to allow any other quarry to be worked on his land , and by subsequent conveyances C. becomes ihe owner of the quarry, and D of the surrounding 312 COVENANT, II, (2), (3). land, C cannot maintain a bill in equity against D, to prevent Mm from quarrying. Norcross «. James, 140 188. 58. A grant by a mortgagor of his equity of redemption passes a covenant which runs with the land, and the latter may be enforced by a purchaser at an execution sale. White ®. Whitney, (3 Met.) 44 81. 59 A covenant by a lessee to pay all expen- ses, etc., except taxes, runs with the land, and binds an assignee. Torrey v. Wallis, (3 C.) 57 443. 60. So a condition in a lease, that if the lessee shall fail to fulfil, the lessor may re-enter, ap- plies to a covenant in the lease as to occupation of the buildings, and runs with the land; so that a forbidden occupation by a sub-tenant forfeits the lease. Wheeler ®. Earle, (5 C.) 59 31. 61. A covenant in a release by an heir ex- pectant, that neither he nor those claiming under him will ever claim any right in the expectant estate, runs with the latter. Trull ■o. Eastman, (3 Met.) 44 121. 62. A bond given to a town to maintain the highway passing by land, granted by it on condition that such a bond should be given, does not create a covenant running with the land. Plymouth v. Carver, (16 P.) 33 183. (3.) Warranty | quiet enjoyment, [See, also.j)o»«, II, (4).] 63. In this Commonwealth, a covenant for warranty is substantially a covenant for quiet enjoyment. Kramer v. Carter, 136 504. 64. The general rule is, that a covenant of warranty, or a covenant for quiet enjoyment, is broken only by eviction or ouster, or something in law equivalent thereto. Emerson v. Minot Prop'rs, 1 464; Marston v. Hobbs, 2 433; Bearce v. Jackson, 4 408; Twambly r>. Henley, 4 441; Chapel r>. Bull, 17 213; Dona- hoe v. Emery, (9 Met.) 50 63; Gilman v. Haven, (11 C.) 65 330. 65. But any adverse assertion of an actual paramount right, to which the grantee yields, or to extinguish which he pays money, is a breach of the covenant of warranty, without actual ouster; the burden being upon bvm to show that it was paramount. Hamilton v. Cutts, 4 349, Sprague v. Baker, 17 586, Jenkins t. Hopkins, (8 P.) 25 346, Burrage » Smith, (16 P.) 33 56, Bemis v Smith, (10 Met.) 51 194; West « Spaulding, (11 Met.) 52 556; Whitney v. Dinsmore, (6 C.) 60 124: Estabrook e. Smith, (6 G.) -72 572; Kramer v Carter, 136 504. 66. The recording of a certificate of entry by a mortgagee, for condition broken, is a suf- ficient eviction within the rule. Tufts v. Adams, (8 P.) 25 547; White v. Whitney. (3 Met.) 44 81; Furnas v. Durgin, 119 500. 67. So is the lawful levy of an execution. Gore v. Brazier, 3 523; Wyman ®. Brigden, 4 150. 68. Where land is conveyed, as bounded on A's land, and the grantor and A had previously agreed upon a line, which was not the true line a covenant of warranty and a covenant of seisin apply to the true line, unless the gran or had previously pointed out the line agreed upon. Cornell *. Jackson, (9 Met.) 50 150- Cornell «. Jackson, (3 C.) 57 506. ' 69. If a grantee enters upon more land than is included in his deed, but the grantor indorses upon the deed a recital that it was intended to convey all the land entered upon, and covenants to warrant it, he can defend the whole under the grantor's title. Spurr v. Bartholomew, (2 Met.) 43 479, 70. A grantee under a warranty deed, against whom a writ of entry is brought, is not obliged to allow the grantor to defend. Boyle v. Edwards, 114 373. 71. A grantor with warranty, who has been duly vouched in by his grantee to defend, may in turn vouch in his grantor with a like cove nant. Chamberlain®. Preble, (11 A.) 93 370. 72. One who has been vouched in to defend, is bound by the result of the adverse action, al- though it was decided upon an agreed state- ment of facts, in which a materiBl fact was mis- stated, if the agreed statement was in good faith. Chamberlain D.Preble, (11 A.) 93 370. 73. A judgment upon a covenant of warranty, for damages for ouster by a paramount title to part of the land, bars a subsequent action to re- cover a payment by the covenantee, for occupy- ing the whole land before the ouster. Osborne 0. Atkins, (6 G.) 72 423. 74. A declaration on a covenant, either of warranty or for quiet enjoyment, must allege specially the breach. Marston v. Hobbs, 2 433. 75. The statement of the covenant in the dec- laration is sufficient, if it is stated according to its legal effect. Dexter v. Manley, (4 C.) 58 14. 76. Each successive covenantor by warranty, is bound to indemnify each subsequent cove- nantee. Sprague -o. Baker, 17 586; White v. Whitney, (3 Met.) 44 81, Kramer *. Carter, 136 504. 77. But where a grantee has assigned the land, he cannot recover upon the covenant without averring his liability, and payment of damages therefor, or the obtaining a release from his grantee. Niles v. Sawtell, 7 444; Wheeler v. Sohier. (3 C.) 57 219. 78. A grantee in a warranty deed, who im- mediately mortgages back the property to the grantor, and afterwards surrenders possession to, and takes a lease from, him, cannot recover for an ouster by paramount title. Gilman ». Haven, (11 C.) 65 330. 79. Where a warranty deed is dated April 30- but executed May 1, and possession then surren, dered, and the tax on the land, for the year be- ginning May 1, is assessed to the grantor, a COVENANT, IT, (3), (4). '6V6 sale for nonpayment of the tax is a breach of the covenant. Hill «. Bacon, 110 387 80 Damages for breach of a covenant for quiet enjoyment, accruing before and after the death of the covenantor, may be recovered in an action against the administrator, with inter- est to the verdict. Hovey v. Newton, (11 P.) 28 421. 81 The value of the land, at the time of the eviction, is the measure of damages for breach of the covenant of warranty, without reference to its value when the deed was given Gore v. Brazier, 3 523, Leprilette v. Band, cited 3 545; Bigelow v Jones, 4 512, White v. Whitney, (3 Met.) 44 81. 82. Where, however, a grantee is evicted by the holder of a prior mortgage, the measure of damages is the amount of the mortgage and interest, under a covenant either of warranty or of quiet enjoyment. lufts e. Adams, (8 P.) 25 547; Dona- hoe v. Emery, (9 Met.) 50 63, Esta- brook v. Smith, (6 6.) 72 572 83. But if the amount of the mortgage ex- ceeds the value of the property, the latter is the measure of damages. White v. Whitney, (3 Met.) 44 81; Furnis v. Durgin, 119 500 84. And where administrators of an insolvent estate sold, under license of the court, an equity of redemption to the mortgagee, with warranty, the measure of damages is the consideration money with interest, and the grantee's costs in defending the suit in which he was evicted. Sumner ». Williams, 8 162. _ 85. Where there is no actual eviction, but a title paramount, semble, that the measure of damages is the consideration and interest. Harris v. Newell, 8 262. 86. If the grantee mortgages the land, he thereby assigns the covenant of warranty pro tanto, and the amount of the mortgage must be deducted from his damages. Tufts «. Adams, (8 P.) 25 547. 87. A grantee evicted from an undivided part of the land, pertaining to which is the right to build upon a division wall, may recover the value of that part, with the building right pertaining thereto. Boyle j). Edwards, 114 373. 88. Where a paramount title is extinguished by payment, the sum paid and expenses, other than counsel fees, are the measure of damages Leffingwell v. Elliott, (8 P.) 25 455; Leffingwell v. Elliott, (10 P ) 27 204. 89. A grantee, who has been evicted by a prior mortgagee, may recover the amount, although it was paid after he had conveyed to another, who assumed part of the mortgage, but did not pay it. Estabrook n Smith, (6 G.) 72 572. 90. Evidence that no consideration was paid tor the deed is inadmissible in reduction of damages, in an action upon the covenant of warranto. Estabrook v. Smith, (6 G.) 72 572. Vol. 1—40 91. An action, for breach of covenants of warranty and against incumbrances, will not lie in favor of a subsequent grantee, where the breach occurred before the plaintiff acquired title; and evidence that the plaintiff's grantor knew the facts constituting the breach is inad- missible. Ladd v. Noyes, 137 151. (4.) Against Incumbrances. [See, also, ante, II, (1); II, (3).l 92. A paramount title is an incumbrance, and the mere existence of it is a breach of a cove- nant against incumbrances, for which an action will lie, but orljy nominal damages can gene- rally be recovered, unless eviction or some special damage is shown. Kramer v. Carter, 136 504. 93. A covenant by the grantor in a deed, that he and his heirs and assigns shall make and maintain a fence, between the land granted and his adjoining land, creates an interest in the nature of an easement, and is an incumbrance, within a covenant against incumbrances, in a deed of the adjoining land. Bronson v. Coffin, 108 175; Ken- nedy v. Owen, 136 199; overruling pro tanto Parish ®. Whitney, (3 G.) 69 516 - 94. But a stipulation by a grantee in a deed poll is not an incumbrance. Martin v. Drinan, 128 515; Kennedy «. Owen, 136 504. ' I See ante, arts. 41 , 42. i 95. An agreement under seal, duly recorded, whereby a riparian proprietor agrees that he, and all subsequent owners of his land, shall be barred from suing, by reason of flowage from a mill dam below on the stream, is a breach of a covenant against incumbrances, and also of a covenant of warranty. So is the assessment and payment of gross damages in proceedings under the mill acts. Craig v. Lewis, 110 377; Isele v. Arlington F. C. Sav. Bk., 135 142. Contra, Fitch *. Seymour, (9 Met.) 50 462; Pettee v Hawes, (13 P.) 30 323 96. So is a private right of way Harlow «. Thomas, (15 P) 32 66 Blake v. Everett, (1 A ) 83 248. 97. Or a public town road. Kellogg v. Ingersoll, 2 97. 98. But not until the location is filed and accepted. Shute v Barnes, (2 A.) 84 598 99. So is a right to cut and remove trees. Spurr o. Andrew, l6A.) 88 420. 100. So is an attachment. Barrett v. Porter, 14 143; Norton v. Babcock, (2 Met.) 43 510. 101. So is a pending petition for partition, where the conveyance is made by a tenant in common. Chapel®. Bull, 17 213. 102. So is a judgment duly docketed, where the land is in a state, by the laws of which such a judgment creates a lien. Jenkins v. Hopkins, (8 P.) 25 346. 314 COVENANT, II, (4). 103. So is an inchoate right of dower. EstabrookB. Hapgood, lO 313; Shearer v. Ranger, (23 P.) 39 447, Wood b. Stratton, cited 'in (22 P.) 39 447; Har- rington v. Murphy, 109 299 104. So is a wife's right to waive a jointure, and have dower under the statute Bigelow v. Hubbard, 97 195. 105. So are taxes, from the time of assess- ment; or an assessment for a public improve- ment, from the time of the order. Cochran b. Guild, 106 29; Blackie v. Hudson, 117 181; Carr v. Dooley, 119 294. 106. So is a condition, restricting the charac- ter of the buildings to be erected on the land, Ayling v. Kramer, 133 12. 107. So where the covenant stated and ex- cepted a certain right in favor of another, under the will of B, and in fact the right extended beyond the statement. JarvisB. Buttrick, (1 Met,) 42 480. 108. The question, whether an inchoate right of dower is an incumbrance, dep nds upon the peculiar character of the the agreement; and under special circumstances the court held that it was not. Fuller v Wright, (18 P.) 35 403. 109 A liability to pay for an adjoining wall, being partly on the land conveyed, is personal to the grantor, and not a breach of the cove- nant. Weld b. Nichols, (17 P.) 34 538. 110. A condition, whereby the estate is de- feasible, is not a breach of the covenant against incumbrances. Estabrook b. Smith, (6 G.) 72 572. 111. An exception of a mortgage, . in a cove- nant against incumbrances, includes the in- terest past due at the time of the conveyance Shanahan b. Perry, 130 460. 112 The existence of any paramount title is a breach of the covenant, although the grantee has not extinguished it, and has not been evicted; but in that case he can have, in general, only nominal damages. Prescott b. Trueman, 4 627; Wyman b. Ballard, 12 304; Tufts v. Adams, (8 P.) 25 547. 113 But if he sustains substantial damages, as where there is a right of way, he may re- cover them, although the incumbrance is extin- guished before action brought, without expense to him. Wetherbee b. Bennett, (2 A.) 84 428. 114. In a deed of land "through which the water from a mill passes," a covenant against incumbrances is not broken by a prescriptive right of the mill owner to cleanse the channel, and remove obstructions, Prescott v. Wiiliams. (5 Met.) 46 429. 115. Eor a peculiar case, where it was held, that the right to use water below a mill was not an incumbrance upon the upper mill and privi- leffes see ' Cary b. Daniels, (8 Met) 49 466. 116 Held, that the liability of a pew, in a new meeting-house, for the expense of building was not an incumbrance. Spring b. Tongue, 9 28. 117. A declaration in an action on the cove- nant must specially assign the breach. Marston b. Hobbs, 2 433. 118. A plea of non est factum will not allow special matter to be given in evidence. Kellogg b. Ingersoll, 1 5. 119. The burden is on the plaintiff to show that the incumbrance was lawful. Lathrop b. Grosvenor, (10 G.) 76 52, 120. The grantee may recover the considera- tion and interest, although, since his eviction, the grantor has purchased the paramount title' Blanchard «. Ellis, (1 G.) 67 195. 121. The amount fairly paid by the grantee, who has not been evicted, to remove the incum- brance, is the measure of his damages, although paid after action brought. Wyman b. Brigden, 4 150, Prescott « Trueman, 4 627; Brooks b. Moody, (20 P.) 37 474; Comings o. Little; (24 P.) 41 266; Parnum v. Peterson, 111 148; Johnson b. Collins, 116 ! 122. He may also recover his reasonable ex- penses, but not auctioneer's fees, for selling the property to one, who refused to complete on discovering the incumbrance. Harrington b. Murphy, 109 299. 123. But where an assessment for a sewer, although invalid, is liable to be re-assessed, the grantee may recover the reasonable expense of removing it. Coburn b. Litchfield, 132 449. 124. In general, if the grantee cannot remove the incumbrance, the measure of his damages is a just compensation for the injury resulting from it. Chapel b. Bull, 17 213; Harlow «. Thomas, (15 P.) 32 66; Batchelder t>. Sturgis, (3 C.) 57 201; Wetherbee «. Bennett, (2 A.) 84 428; Harrington «. Murphy, 109 299. 125. Where the incumbrance has ripened into an adverse titl.', the measure of damages is the consideration and interest. Chapel v. Bull, 17 213; Jenkins «. Hopkins, (8 P.) 25 346. 126. If the sum paid to extinguish the in- cumbrance exceeds the value of the property, the latter is the measure of damages. Barrett b. Porter, 14 143; Norton «. Babcock, (2 Met.) 43 510; Smiths. Carney, 127 179. [See, also, ante, art. 83.1 127. Where a judgment debtor, whose land is set off on execution, redeems it from a grantee of the judgment creditor, and thus evicts him, the grantor is liable on the cove- nant, for the value of the land at the time of me eviction. . Norton v. Babcock, (2 Met.) 43 510. 128. In such a case, permanent buildings, by whomsoever erected, for which the debtor must pay on redeeming, are part of the value. Norton b. Babcock, (2 Met.) 43 510. 129. And they must be estimated in ascer- taining the damages, where the grantee m paid money to extinguish the incumbrance, in- stead of yielding to the eviction. Norton b. Babcock, (2 Met.) 43 510. COVENANT, II, (4), (5) 315 130. In an action against the grantor to re- cover the value of a right of dower not released, when he procured title, the defendant may prove the increase of value by buildings erected since he procured title. Sturtevant e. Phelps, (16 G.) 82 50. 131. Where the defendant gave a mortgage to the plaintiff, and a bond to discharge all in- cumbrances, and the plaintiff entered for fore- closure, and was afterwards evicted by a prior mortgagee, the measure of damages is the first mortgagee's judgment, interest, and costs. Wetmore «. Green, (11 P.) 28 462. 132. Where the grantor conveys an undivided fourth of the land, with covenant against in- cumbrances, and the other three fourths with- out covenants, the measure of damages for an assessment paid by the grantee, is only one fourth of the sum paid. Smith v. Carney, 127 179. 133. Evidence is admissible, to show that the amount of the incumbrance was deducted from the consideration, and the grantee promised to pay it, and indemnify the grantor; and this will render the damages only nominal. Newcomb v. Wallace, 112 25. 134. As to the measure of damages for a per- petual charge of maintaining a fence, see Bronson «. Coffin, 108 175. 135. For a right of way, see Wetherbee v. Bennett, (2 A) 84 428. 136. P. S. Ch. 126, § 18, giving a subsequent grantee an action, where the incumbrance ' ' ap- pears of record," applies only to a record in the registry of deeds, not to a lien for unpaid taxes. Carter v. Peak, 138 439. 137. The release of a city, from damages caused by laying out a street, is not a breach of the covenant against incumbrances, in a deed made subsequent to the laying out, but before the actual taking of the land. Patten v. Fitz, 138 456. (5.) Seisin; right to convey. [See, also, ante, II, (1); and Seisin 1 138. Where one conveyed part of his land to A, with a right to maintain a dam on the re- mainder, and afterwards conveyed the remain- der to B, " reserving " all the rights of A, with a covenant of seisin, this is an exception and not a reservation, and no action lies upon the covenant. Stockwell v. Couillard, 129 231. 139. Where a right of way passes by a deed as appurtenant to land, but it is not mentioned therein, and the grantee releases it, and subse- quently conveys the land with covenant of seisin, by a description referring to his deed, the right of way does not pass, and its nonexistence is not a breach. Parker «. Moore, 118 552. 140. The covenants of seisin, and of right to convey, are practically synonymous; seisin in tact of the grantor will support both, and the want of it is a breach of both. Neither requires that he should have a good and indefeasible title. Slater v Rawson, (1 Met.) 42 450; Raymond v. Raymond, (10 C.) 64 134. See, also, Marston v. Hobbs, 2 433: Bickford *. Page, 2 455; Bearce * Jackson, 4 408; Twambly v. Henley, 4 441; Follett®. Grant, (5 A.) 87 174. Contra, in part, Sumner v. Williams, 8 162. 141. The rule extends to an executor selling without license, after foreclosing a mortgage held by his testator. Baldwin «. Timmins, (3 G.) 69 302. 142. It is a breach of the covenant of seisin, if there is no such land in existence, as the deed purports to convey. Bacon v. Lincoln, (4 C.) 58 210; Bae- ford v. Pearson, (9 A.) 91 387. 143. Where a deed contains covenants of seisin, of warranty, and against incumbrances, and recites that the two latter covenants are limited to a specific portion of the land, the covenant of seisin extends to the whole. Cornell v. Jackson, (3 C.) 57 506. 144. A quit-claim by a grantee to a third per- son, does not affect his right to full c amages on the covenant of seisin. Cornell v. Jackson, (3 C.) 57 506. 145. As to the construction of the covenant, with respect to the true boundary line, where a false line had been run, see Cornell v. Jackson, (9 Met.) 50 150; Cornell o Jackson, (3 C.) 57 506; cited, ante, art. 68. 146. Where A conveyed land to B, with cove- nants of seisin and warranty, and B simultane- ously mortgaged it back to A with the same covenants, B may maintain an action upon his covenants for an eviction. Sumner «. Barnard, (12 Met.) 53 459. 147. A declaration which avers only that the defendant was not seized, etc., suffices, without specifying the br. ach. Marston «. Hobbs, 2 433. 148. The general rule is, that the measure of damages for breach of either covenant is the consideration, with interest. Hodges «. Thayer, HO 286. See, also, Marston v. Hobbs, 2 433; Bickford «. Page, 2 455, Caswell v. Wendell, 4 108; Nichols v. Walter, 8 243; Le- land ■». Stone, lO 459, Smith v. Strong, (14 P.) 31 128; Whtting e. Dewey, (15 P.) 32 428. 149. The actual consideration may be proved by oral evidence, even in contradiction of the recital in the deed. Hodges v. Thayer, 110 286. 150. And it may be shown, to reduce the re- covery to nominal damages, that the part of the land, as to which the covenant was broken, was included in the deed by mistake Leland v Stone. 10 459. 151. If Ihe actual consideration was paid in real property, or commodities, other than money, the value must be ascertained. Hodges v. Thayer, 1 10 286. 152. Nor does it matter that the consideration is paid to another than the grantor, or that it is the property of another than the grantee, if it 316 COVENANT, II, (5), (6); III. is agreed upon between them as the considera tion. Hodges ». Thayer, 110 286. 153. But semble, that if the covenantee has derived profits from the land, and the statute of limitations has run against the recovery thereof, they must be deducted. "Whiting v. Dewey, (15 P.) 32 428 154. And where no consideration or price is agreed upon between the parties, each making a separate agreement with a third person, and the deed is given as the result of the two agree- ments, the value of the land is the measure of damages. Byrnes v. Rich, (5 G.) 71 518; Hodges «. Thayer, 110 186. 155. The value of the land is also the meas- ure of damages, where the actual consideration is incapable of proof. Smith » Strong, (14 P.) 31 128. 156. Also where part of the consideration was paid to a third person, and the plaintiff elects to recover the value, instead of the sum actually received by the grantor. Staples v Dean, 114 125 157. If the action is brought here, and the land is situated in another state, our rule of damages governs. Smith®. Strong^ (14P.) 31 128. See, also, Nichols v. Walter, 8 24&. 158. The damages will not be enlarged by the fact, that the grantee has been compelled to pay his grantee a greater sum, on a covenant of warranty. Nichols v. Walter, 8 243. 159. "Where the covenant is broken as to part only of the land, a pro rata portion of the con- sideration is recoverable. Cornell v. Jackson, (3 C.) 57 506. 160. Where the deed contains also a covenant of warranty, and the grantor afterwards recovers part of the land of which he was not seized, when the deed was given, that will reduce th» damages for breach of the covenant of seisin. Cornell v. Jackson, (3 C ) 57 506. (6.) To stand seized. 161 A deed of land from father to child, re- serving the use thereof to the father for life, although void as a deed of bargain and sale, is valid as a covenant to stand seized to uses, and the consideration of consanguinity will be pre- sumed, although not expressed. Waliis v Wallis, 4 135. See, also, Parker®. Nichols, (7 P.) 24 111; Gale v Coburn, (18 PJ 35 397, Brewer v. Hardy, (22 P.) 39 376. 162 And a deed of land to take effect at the grantor's death, which recites a pecuniary con sideration, is good as a covenant to stand seized to the use of the grantee, although there is no relationship by blood or marriage between the .parties. Traftona Hawes, 102 533. 163 So where it is to take effect only upon the death of the grantor and his wife. Steel v Steel, (4 A ) 86 417. III. Implied Covenants. LSee, aiso. Deed.. Ill; Easement, EL] 164. A stipulation in a deed poll is not a covenant, running with the land or otherwise but only a personal agreement of the grantee' evinced by his acceptance of the deed, binding him and his legal representatives, but not affect- ing the property. Kennedy ®. Owen, 136 199. LSee, also, ante, II, (2).] 165. If a deed of land contains an express stipulation, that the grantee shall assume and pay a mortgage on the land, this implies a promise to discharge it, upon which assumpsit will lie. Furnas ». Durgin, 119 500. [See, also, Contract, I, . Graves, (6 C.) 60 308. 2. In such an action, the defendant may show, in mitigation of damages, complaints of ill'- treatment by the plaintiff, made by the wife, before the alleged seduction. Palmer v. Crook, (7 G.) 73 418. 3. A husband may maintain an action for loss of the consortium with his wife, against one who has had criminal conversation with her, although the act was without her consent and was not followed by any loss of service. ' Bigaouette v. Paulet, 134 123. Criminal law. [See the titles of the different crimes and offences, and of the subjects of criminal acts; also Abate- ment; Accessory and Accomplice; Agent; Ag- ricultural Society; Appeal; Arrest; Attempt to commit Crime; Attorney-General; Bail; Bridge ; Carrier; Certiorari; Constitutional Law ; Conviction and Sentence ; Corporation; Costs; Deodand; District-Attorney; Error; Escape; Evidence; Exceptions; Fish; Former Adjudication; Fugitive; Grand Jury; Gtru- powder; Habeas Corpus; Hawker and Ped- dler; Highway; House or Correction; Idle, etc., person; Indictment; Infant; Informa- tion; Judgment; Jurisdiction ; Jury ; Justice op thb Peace; Lord's Day, Lunatic; Master and Servant, Mortgage; New Trial; Nolle™* Prosequi; Practice, II; Recognizance; Record; Reports Search Warrant; Street Railway; Tythingman ; Trial; United States Forces; Variance; Witness. Criminal pleading. [See Indictment.] Criminal procedure. [See Conviction and Sentence; Practice, 11; Trial, etc.] Crop. [As between landlord and tenant, see Landlord, etc., IV, (4). As between vendor and vendee, see that title. Upon partition, see Partition, HI, (3). As between real and personal representatives, see Executor and Administrator, HL (1); Hedjs, Cross action; cross bill. [See Damages, V; Equity Pleading and Prac- tice, I, (2).] Cruelty. [To animals, see Animal and Bird. IV; Indict- ment, VIII, (23). Between husband and wife, see Criminal, Conversation; Divorce, II, (4).] Currency. [See Money.] Curtesy, tenancy by. [See, also, Dower, I; Tenant for Lot.] 1. A husband has no interest as tenant by the curtesy in land, in which his wife has only an estate in remainder or reversion. The wite s seisin in law will not suffice; there must be a seisin in deed. Shores v. Carley, (8 A.) 90 425. CURTESY— DAMAGES. 319 2. Where a living child was born, after the filing of a petition for a mechanic's lien, upon the husband's contract to erect a building on the wife's land, the lien will hold upon the estate by the curtesy initiate. See, however, most, art. 4. Kirby v. Tead, (13 Met.) 54 149. 3. Formerly the estate of a, tenant by Ijhe curtesy initiate could be levied on by his creditors, and would pass by assignment under the insolvent law. Mechanics' Bk. •». Williams, (17 P.) 34 438; Gardner v. Hooper, (3 G.) 69 398. 4. But since G. S. ( Ch. 108, § 1; P. S., Ch. 147, § 1, such an estate cannot De reached by the husband's creditors. Staples v. Brown, (13 A.) 95 64. 5 The birth of a living child after convey- ance by a married woman, under St. 1845, Ch. 208, of land held by her to her sole use, will entitle her husband, after her death to an estate by the curtesy in the land. Comer o. Chamberlain, (6 A.) 88 166. 6. A married woman, by a will executed with his assent, may now cut off her husband's ten- ancy by the curtesy. Silsby a Bullock, (10 A.) 92 94. 7. As to the sum allowed a tenant by the curtesy, out of the proceeds of real property sold by an executor, see Houghton v. Hapgood, (13 P.) 30 154. 8. Formerly an alien, who was not natural- ized until after the wife's death, could not take as tenant by the curtesy, although he declared lib intentions before she died. Foss v. Crisp, (20 P.) 37 131. Custom and usage. [See Usage. Customs, and collector of customs. (United States.) 1. The lien of the United States upon im- ported goods, for customs duties, extends only to the duties upon the particular goods, and not to those due from the same importer upon other goods. Dennie v. Harris, (5 P.) 22 130; Hodges v. Harris, (6 P.) 23 360; Dennie v. Harris, (9 P.) 26 364. See Harris ». Dennie, 3 Peters, 293. 3. Goods held by a collector, to enforce pay- ment of duties, cannot be attached by the im- porter's creditor.' Dennie v. Harris, (9 P.) 26 364. 3. The courts of this Commonweal h have jurisdiction of an action by an informer, against a collector of customs, to recover a share of a penalty for smuggling, received by the latter. But the action will not lie for a share of money received by the collector as a compromise. Lapham i>. Almy, (13 A.) 95 301. See, also, under the TJ. S. internal revenue act, Rice v. Thayer, 105 358. 4. In an action against a collector of customs seizing cattle, upon an unfounded allegation that they were to be transported to the British provinces, contrary to an act of Congress, he is liable for the full value, unless the property is restor.d, although the judge certifies that there was reasonable cause. Hoit v. Hook, 14 210. 5. A collector, whose term had expired, was entitled to recover from his successor, half the commissions on receipt of the duties bonded by him, upon collection thereof by his suc- cessor. Doane v. Phillips, (13 P.) 29 223. 6. But a collector removed was entitled to nothing. Currier «. Phillips, (13 P.) 29 333. 7. A collector removed cannot recover from his successor any compensation, where the latter permitted him to remain for a few days after his removal, in the office, discharging the ordinary duties. Currier v. Phillips. (12 P.) 29 333. Cy-pres. [See Charity, II.] D. Dam. [See Cranberry Meadow; Deed, JH, (4); Mm, and Mill Dam; Water Course.] Damages. I. General Rules. II. Nominal Damages; double Damages. III. Rules applicable to particular Con- tracts. (1.) Continuing contract; entire damages. (3.) Purchase and sale (3.) Warranty; including deceit. (4) Miscellaneous rulings. IV. Rules applicable to particular Ac- tions or Tort. (1.) Vindictive or punitive damages; mental suffering. (2.) Two or more defendants. (3.) Injury to the person. (4 ) Conversion, or loss of, or injury to, per sonal property. (5.) Trespass upon, or injury to, real property. (6.) Officer. (7.) Carrier. (8.) Stock of a corporation (9.) Miscellaneous rulings. V. Recoupment or damages. 320 DAMAGES, I. [As to damages in equity, see Equity Pleading, etc., II, (7) ; Specific Performance, III. As to excessive damages, see Error, II, (3) ; New Trial, III, (3). As to whether a sum fixed is a penalty or liquidated- damages, see Contract, IV, (2). As to damages upon covenants for title, see Covenant, II. As to damages upon a promise to pay a debt implied from a deed, see Contract, I, (1). For additional cases as to when interest is allowed, see, also, Interest. For additional cases as to dam- ages in particular actions, upon particular causes of action, or by or against particular parties, see the titles relating to those subjects respectively. Gene- rally, see, also. Action; Auditor; Eminent Domain; Evidence; Highway, IV; Mill, II, (6); Bailroad, II, (7); Town and City, VI.] I. General Rules. 1. It is a general rule of law, respecting the measure of damages, that where an injury has been sustained, for which the law gives a remedy, that remedy shall be commensurate with the injury sustained. Rockwood v. Allen, 7 254; Swift v. Barnes, (16 P.) 33 194. 2. The law presumes damage where a man's right is invaded, and an action maybe sustained for such invasion, without proof of actual Bolivar M. Co. v. Neponset M. Co., (16 P.) 33 241. 3. Special damage is that which might be given in evidence to aggravate the damages in an action, or itself might be the. cause of a separate action; in the former case, if the princi- pal action fails, the special damage fails with it. Smith v. Sherman, (4 C.) 58 408. 4. Damages, which naturally flow from the cause of action set forth in the declaration, may be recovered under a general averment of damage; other damages when recoverable, must be specially averred. Dickinson v. Boyle, (17 P.) 34 78; Warner v. Bacon, (8 G.) 74 397; Prentiss t>. Barnes, (6 A.) 88 410. 5. Special damages need not be alleged where the acts charged are such, that their natural and necessary consequence is to injure the plaintiff. Rice v. Coolidge, 121 393. 6. Where each count of a declaration alleges what damage was caused by the defendant's wrongful acts, although the statement is very general, the declaration is good on demurrer. Carney v. Shanly, 107 568. 7. In an action for damages for a personal injury, the plaintiff's occupation and means of support must be specially alleged, if they are relied upon as evidence to increase the damages. Baldwin e. Western Railroad, (4 G.) 70 333. 8. So in trespass guare claumim, as to the re- moval of a fence. Knapp v. Slocomb, (9 G.) 75 73. 9. So as to loss of rents from obstruction of a way, or other injury to realty. Adams v. Barry, (10 G.) 76 361; Parkers. Lowell, (11 G.) 77 353. 10. Where there is no rule of law regulating the assessment of damages, and the amount does not depend upon computation, the judgment of the jury governs, unless the damages given are so excessive, as to warrant the belief, that the jury mistook the merits, or were influenced by partiality or prejudice. Perry «. Goodwin, 6 498; Worster » Canal Bridge, (16 P.) 33 541. [See New Trial, III, (3).] 11. The direct consequences of an injurious act form the proper element of damages, not remote speculation or contingent consequences, Loker v. Damon, (17 P.) 34 234' Sibley v. Hoar, (4 G.) 70 222; Shaw 1 Boston & W. Railroad, (8 G.) 74 Goddard B.Barnard, (16 G.) 82 205 : Westfield v. Mayo, 122 100. 12. But if damages did, in fact, thus proceed directly from the injurious act, it is no objec- tion to allowing them, that a considerable inter- val of time elapsed before they happened. Dickinson v. Boyle, (17 P.) 34 78. 13. The probable consequences of putting a libel in circulation are a proper element of dama- ges in an action therefor, although it was con- tained in a private letter, written by the de- fendant. Miller v. Butler, (6 C.) 60 71. 14. The law looks to and regards proximate, not remote consequences; the direct proximate cause of the act, not remote results, that may be traced to it by a chain of causes. It is not always easy to draw the line, but it must be adhered to when it can be discerned. Ingledew v. Northern Railroad, (7 G.) 73 86. 15. For cases upon the question, whether compensation for the plaintiff's loss of time and travelling expenses, can be allowed, see Johnson v. Arnold, (2 C.) 56 46; Waite v. Gilbert, (10 C.) 64 177; Ingle- dew «. Northern Railroad, (7 G.) 73 86; Croucher v. Oakman, (3 A.) 85 185: Tufts ». Plymouth Gold M. Co., (14 AJ 96 407; Noble v. Ames M. Co 112 492. 16. Damages for taking property for public use are its fair market value, not' its special value for the particular use. Moulton v. Newburyport Water Co., 137 163. See, also, Cobb % Boston, 112 181; Lawrence ». Boston, 119 126; Drury v. Midland R. R, 127 571. 17. Loss of profits may be claimed as dam- ages for breach of a special contract, where they would have accrued and grown out of the contract itself, as the direct and immediate re- sults of its fulfilment, but not otherwise. Pox 0. Harding, (7 C.) 61 516. 18. So where A contracts with B to do cer- tain work, and makes a sub-contract with C for materials, and after C has begun to make the materials, A abandons the contract, B is liable to C for loss of profits and materials, and such liability is an element of damages in his favor QffoiTicjf; A Smith v. Flanders, 129 322. 19. For other cases, involving the question of allowing loss of profits as damages, see White v. Moseley, (8 P.) 25 356; Boyd v. Brown, (17 P.) 34 453; Barn- ard v. Poor, (21 P.) 38 378; Thompson v. Shattuck, (2 Met.) 43 615; Greene*. DAMAGES, I. 321 Goddard, (9 Met.) 50 212; Fox v. Hard- ing (7 C.) 61 516; Waite ». Gilbert, (10 C ) 64 177; Brown v. Smith, (12 C.) 66 366; Willey v. Fredericks, (10. G.) 76 357; Dennis v. Maxfield, (10 A.) 92 138; Somers«. Wright, 115 292; Har- vey ». Connecticut, etc., Railroad, 124 421; Blair v. Laflin, 127 518. 20. A street railway corporation, bound to re- pair a bridge, built by the owner of a canal, which, as against the city, he is. bound to re- pair, is liable to him for the damages re- covered against him by the city for failure to repair; but not for the costs of the suit, unless he defended the suit at the request of the cor- poration, or for its benefit, or after notice to it to come in and defend. Locks & Canals v. Lowell Horse Rail- road, 109 2?1. 21 For other cases, involving the question of the liability to pay costs, as part of the dam- ages for breach of a contract or duty, see Lowell v. Boston & L. Railroad, (23 P.) 40 24; Coolidge v. Brigham, (5 Met.) 46 68; Reggios. Braggiotti, (7 C.) 61 166; Hadsell v. Hancock, (3 G.) 69 526; Hagan e. Riley, (13 G.) 79 515; Noxon «. Hill, (2 A.) 84 215; Hew Haven & N. Company ». Hayden, 117 433. 22. An officer defeated in an action against him for an escape, may recover the costs of the action, as well as the amount for which he has been cast in damages, in an action against the debtor. Griffin v. Brown, (2 P.) 19 304. 23. Where a tax warrant was issued for a tax, part of which was valid, and part of which was void, the party paving the tax may recover back from the town the void part, but not the costs of the distress. Torrey v. Millbury, (21 P.) 38 64. , [See Taxation, VIII, (1) 1 24. In general, counsel fees cannot be allowed as damages, even when costs are recoverable. Leffingwell «. Elliott, (10 P.) 27 204; Barnard ®. Poor, (21 P.) 38 378; Reggio «. Braggiotti, (7 C.) 61 166; Henry *. Davis, 123 345. 25. But where a party is called upon to de- fend a suit, founded upon a wrong, for which he is responsible in law, without misfeasance upon his part, but because of the wrongful act of another, against whom he has a remedy over, he can recover counsel fees of the latter, - if he has notified the other to appear and de- fend the suit. Westfield v. Mayo, 122 100. See, also, Coolidge v. Brigham, (5 Met.) 46 68; Pond v. Harris, 113 114; Boston & A. Railroad e. Richardson, 135 473. 26. For rulings as to various items, including costs, and counsel fees, recoverable and not re- coverable, in an action by a railroad corporation tor breach of a contract to secure a right of way, whereby the plaintiff was compelled to procure the right by proceedings under the statute, see New Haven &N. Co. v. Hayden, 117 '±00. 27. One may recover for interruption of his business and loss of time of his workmen, in con- sequence of injury to hjs shop by negligent Vol. 1-41 blasting by the defendant; Dut the allegations must be special. Hunter v. Farren, 127 481. 28. In an action by a stage proprietor for fraudulently using his badges, and thus divert- ing passengers from his coaches, the plaintiff is not confined to damages for the loss of such passengers as are proved to have been diverted; but the jury may make their own inferences as to the damages. Marsh v. Billings, (7 C.) 61 322. 29. For additional rulings as to damages by loss of, or injury to, business, see Townsend v. Nickerson Wharf, 117 501 ; Stanwood v. Comer, 118 54. 30. Where one is liable to another for ex- penses, and by accident the book containing the account of actual expenses is lost, he may re- cover such a sum as can be ascertained with reasonable certainty. Newton v. Devlin, 134 490. 31. In an action against a railroad corporation for turning the current of a stream against the plaintiff's land, and washing away his soil, the plaintiff may recover for prospective as well as past injury; and a recovery of prospective dam- ages will bar an action for subsequent damages, although caused by an unusual freshet. Fowle v. New Haven & N. Co., 107 352; Fowle v. New Haven & N. Co. , 112 334. See, also, Warner v. Bacon, (8 G.) 74 397; Wheeler v. Worcester, (10 A.) 92 591. [See, also. Former Adjudication, II.] 32. The rule as to prospective damages is, that if the damages subsequent to the date of the writ are merely incidental to the cause of action, damages are to be assessed to the time of the verdict, and in some casi s indefinitely be- yond; but if such subsequent damages may arise from a new breach, or a new cause of ac- tion, they cannot be so assessed. Fay v. Guynon, ' 131 31. See, also, Warner «. Bacon, (8 G.) 74 397; Bates v. Ray, 102 458; Fowle v. New Haven & N. Co., 112 B34; Mears v. Dole, 135 508. [As to continuing contracts, see post, III, (1).] 33. But in geneial, in actions of contract, damages are recoverable only to the date of the writ. Powers v. Ware, (4 P.) 21 106; Pierce v. Woodward, (6 P.) 23 206; Fay v. Guynon, 131 31. [Aliier, as to Interest, see Interest.] 34. But where the plaintiff is entitled to re- cover a sum for which he is liable, irrespective of actual payment by him, payment after action brought does not affect his right. Preble v. Baldwin, (6 C.) 60 549. 35. In an action of tort to real or personal property, if the plaintiff owns but a portion of the property, he may recover damages for his portion only, unless the nonjoinder is pleaded. Thompson «. Hoskins, 11 419; Call v. Buttrick, (4 C.) 58 345; Putney v. Lapham, (10 C.) 64 232; Sherman *. Fall R. I. Wks., (5 A.) 87 213; May v. Western U. Tel. Co., 112 90. 322 DAMAGES, I; II. 36. A judgment by default will not be reversed because the record does not show how damages were assessed, the presumption being that they were legally assessed. Jarvis «. Blanchard, 6 4; Fairfield v. Burt, (11 P.) 28 344. 37 In an action of tort, after verdict for the plaintiff, if matters are improperly stated by way of aggravation, it will be presumed that they were not considered. Richards v. Farnham, (13 P.) 30 451. 38. In estimating damages, the jury are not bound by a party's testimony, although there is no other evidence to fix the amount. Bee Printing Co. i>. Hichborn, (4 A.) 86 63. 39. Guesses of witnesses are not sufficient to found a verdict upon; the judgment of persons, having sufficient knowledge and opportunity of judging,, i-i competent as to the amount and extent of injury to property; exact accuracy in such a case is not required, but the jury must not give greater damages than the evidence sat- isfies them was sustained. Priest v. Nichols, 116 401. 40. In an action upon contract, the plaintiff cannot recover for fraud or false representa- t ons of the defendant, or for a conversion or unlawful detention of his property, under a claim for advances. Farley v. Rodocanachi, lOO 427 41. In an action for breach Of an agreement, by the vendor of real property, to assign a policy of insurance upon the building thereon, the measure of damages is the cost of a new insurance, not the injury resulting from the subsequent burning of the building. Dodd ». Jones, 137 322. 42. In an action against a carrier, for loss of a package containing plans, etc., for a house, the measure of damages is the cost of procuring new plans, and other reasonable expenses in procuring them; not including damages for delay in building the house, if the defendant had no notice of the contents, or the use to which the plans were to be applied. Mather v. American Express Co., 138 55. 43. As to the measure of damages for loss of a portrait by a carrier, see Green ». Boston & L. Railroad, 128 221. 44. In an action for breaking and entering the plaintiff's close, and placing earth there- upon, the benefits to the plaintiff's land, by placing the earth thereupon, may be considered in estimating the damages without a special answer, that not being matter of recoupment. Mayo v. Springfield, 138 70. II. Nominal Damages; double Damages. 45. "Where the plaintiff, upon the trial, makes out a cause of action for a wrongful act, or for breach of contract or neglect of any duty, the law presumes damage; and if no actual damages are shown, and the case is not one where the jury may, in their discretion, give substantial damages, he is entitled to recover nominal damages. As for neglect of duty by a public officer, or by an administrator. Laflin ». Willard, (16 P.) 33 84. Glezen 0. Rood, (2 Met.) 43 490; Fays' Haven, (3 Met.) 44 109; Goodnow V Willard, (5 Met.) 46 517; Lawrence »' Rice, (12 Met.) 53 535; Gallup v. Robu> son, (11 G.) 77 20. 46. Or for wrongfully flowing land, or di- vertingwater, or taking water. Bolivar M. Co. v. Neponset M. Co. (16 P.) 33 241; Newhallu. Ireson, (8 0) 62 595; Elliot s. Fitchburg Railroad (IOC.) 64 191; Stowell D.Lincoln, (11 G.) 77 434; Lund «. New Bedford 121 286; Bailey «.Woburn, 126 410. 47. Or other invasion of his rights. Hooten v. Barnard, 137 36 48. Or breach of any contract. Tufts v. Adams, (8 P.) 25 547; Hagan v. Riley, (13 G.) 79 515; Newcomb 0. "Wallace, 112 25. 49. Or conversion of an article of no sub- stantial value. Bridgewater C. Soc. v. Howard, (16 P.) 33 206. the plaintiff unwholesome 28 481 50. Or selling meat. Peckham v. Holman, (11 P.) 51. Or a trespass upon real property, by mere entry without license. Brown v. Perkins, (1 A.) 83 89. 52. So where the breach of the contract by the defendant was really beneficial to the plain- tiff. Pond «. Merrifield, (12 C.) 66 181. 53. A defendant in replevin may recover nominal damages for breach of the replevin bond, although he had no title. Smith v. Whiting, lOO 122. 54. The rule is the same where there is a presumption of substantial damages, but the defendant shows that the plaintiff sustained none; as where the action is against an officer, for neglect to serve or return a writ or an execution, against one who is a bankrupt, insol- vent, etc. Self ridge v. Lithgow, 2 374; Laflin ». Willard, (16 P.) 33 64; Woods «. Var- num, (21 P.) 38 165. 55. Or where the benefit of the proceeding has been lost by the plaintiff's own fault. Waterhouse v. Waite, 1 1 207; Glezen v. Rood, (2 Met.) 43 490. 56. Or where the officer neglects to serve an attachment, but the goods are not equal in value to prior attachments. Rich ».Bell, 16 294. [See,also,pos<,IV,(6).l 57. So where, after suit brought upon a bond, the obligor performs the condition. Sbattuck v. Adams, 136 34. 58. Where one struck by a locomotive en- gine remained unconscious until his death, his administrator could not, before the statute, recover anything but nominal damages. Tully v. Fitchburg Railroad, lo* 499. And see Kennedy v. Standard ». Refinery, 125 90. DAMAGES, III, (1), (2). 323 [As to the rule under the existing statutes, see references under Death.] 59. Where a statute gives double or treble damages, the jury may assess the single dam- ages, and the court may double or treble them; or the jury may assess the double or treble damages. Lobdell «. New Bedford, 1 153; Clark v. Worthington, (12 P.) 29 571; Pressey «. Wirth, (3 A.) 85 191; Snell- ing v. Garfield, 114 443. III. RULES APPLICABLE TO PABTICULAK CON- TRACTS. CI.) Continuing contract; entire dam- ages. 60. If a continuing contract, such as a con- tract to support the plaintiff during his life, is regarded as still subsisting, damages for a breach thereof are to be assessed only to the date of the writ, leaving subsequent damages to be re- covered by subsequent suits. Fay v. Guynon, 131 31. And see Powers*. Ware, (4 P.) 21 106, Warner «. Bacon, (8 G.) 74 397. [For the construction of agreements to support, see Mortgage, II, (3); Specific Peotobmance, 61. But if the breach is such, that the prom- isee is entitled to treat the contract as absolutely broken, he may recover damages for the whole value of the contract. Amos v. Oakley, 131 413; Parker «. Russell, 133 74. 62. .Such damages are not special or prospect- ive, but naturally result from the total breach, and include damages for future, as well as past nonperformance. Parker v. Russell, 133 74. 63. And where A makes a contract with B, by the terms of which B is to cultivate A's farm on shares for a year, and before the end of the year, A orders B off the premises, and lets the land to another, B may immediately maintain an action, and recover the entire value of the contract. Jewett v. Brooks, 134 505 (2.) Purchase and sale. 64. An assent to a purchase and sale need not be in express terms; it may be inferred; and if no price is fixed, the seller may recover what the article is fairly worth. Taft e. Travis, 136 95. 65. Where the delivery is to be made at another place, and the goods are not to be the purchaser's property until delivery, the value at the place of delivery controls. Shaw ». Nudd, (8 P.) 25 9. 66. Where, however, the price is fixed, and the purchaser refuses to accept, the measure of damages is the difference between the market value at the place of delivery, and the agreed price. Barry v. Cavanagh, 127 394. . 67. And if the place of delivery is a bridge in a cily, it is error to rule that, if there was no market value for the goods (stones), at the place of delivery, the difference between the cost of delivering them and the contract price is the measure of damages, there being a market value elsewhere in the city. Barry «. Cavanagh, 127 394. 68. The seller may fix the damages by an auction sale, upon notice to the purchaser, if there is no contrary usage. Whitney v. Boardman, 118 242. 69. For that purpose, the expenses of the auction may be deducted from the proceeds. Whitney *>. Boardman, 118 242. 70. The buyer may show in reduction of damages, in a suit for the price, or a suit for not accepting, that the goods were inferior in qual- ity or quantity to the provisions of the contract. Westcott «. Nims, (4 C.) 58 215; Col- lins v. Delaporte, 115 159. 71. For a breach of contract to pay $1,000 in goods at the regular trade price, the damages are a sum, bearing the same proportion to $1,000, that the market price of the goods does to the regular trade price. Meserve v. Ammidon, 109 415. 72. For breach of an agreement to pay cash in part, and give notes with interest for the re- mainder, for goods sold, the plaintiff recovers the contract price. Worthy v. Jones, (11 G.) 77 168. 73. Where the purchaser has increased the value, the damages are measured by the value at the time of delivery. Dresser M. Co. «. Waterston, (3 Met.) ' 44 9. 74. Where the contract is to purchase corpo- ration shares, and the seller tenders a certificate for the shares to the purchaser, and the latter refuses to accept them, the contract price meas- ures the damages. Thompsons. Alger, (12 Met.) 53 428; Thorndike ». Locke, 98 340; Pearson v. Mason, 120 53. 75. Where a broker buys stock for a cus- tomer and tenders a certificate, he may recover the price paid, although the certificate is in his own name, if he offers to transfer it Giddings e. Sears, 103 311 76. The measure of damages for breach of a contract to deliver goods sold, is the market value of the goods at the time specified for de- livery, deducting the contract pr.ce; or, if no time is specified, at the time of actual tender and demand. Quarles ». George, (23 P.) 40 400; Eastern Railroad «. Benedict, (10 G.) 76 212; Bartlett v. Blanchard, (13 G.) 79 429; Essex Company v. Pacific Mills, (14 A.) 96 389. 77. If they have not been paid for, it is the decline in their market value, between the time when they ought to have been delivered, and the time when they were delivered. Clement & H. M. Co. v. Meserole, 107 362. 78. If the purchaser is to pay freight, an ad- vance in freight may be added. Merrimack M. Co. v. Quintard, 107 127. 324 DAMAGES, III, (2), (3), (4). 79. As to delivering goods of an inferior quality, see Merrimack M. Co. v. Quintard, 107 127. 80. Evidence of the value for a special use, of goods sold and not delivered, is inadmissible Bouton v. Reed, (13 G.) 79 530. 81. Unless, perhaps, when the seller knew the use to which they were to be applied. Bartlett v. Blanchard, (13 G.) 79 429. ' 82. Damages, for the breach of a contract to exchange property, are the difference between the market value of the plaintiff's property, and the market value of that which he would have received in exchange. Brigham ». Evans, 113 538. See, also, as to a land contract, Croak v. Owens, 121 28. 83. Where the values were to be determined hy appraisement, the appraisement is evidence of the value of the defendant's property, and the sum realized, at a subsequent auction sale of the plaintiff's property, being less than the appraisement, is evidence of its value at the time, if it is shown that the value had not de- preciated. Brigham v. Evans, 113 538. See, also, as to a land contract, Croak v. Owens, 121 28. 84. For a ruling where the plaintiff's property was stolen, pending the action see Murray v. Stanton, 99 345. 85. For a ruling upon a contract to deliver stock in a eorporation to be formed, where the shares were less than the contract provided for, see Dyer e. Rich, (1 Met.) 42 180. 86. For breach of a contract to purchase xand, the vendor recovers, not the full contract price, but the difference between that price, and the sum for which the land could have been sold, at the time of the breach. Old Colony Railroad v. Evans, (6 G.) 72 25. 87. And where the sale was of a debtor's equity of redemption, attached on the writ, and sold on execution, and the debtor had conveyed it after attachment and before judgment, so that it had no value, the measure of damages allowed was the contract price. Sanborn v. Chamberlin, 101 409 \ 88. Where one, who had agreed to convey land to a railroad corporation for its road, refuses to fulfil, and obtains an assessment of his land damages, the measure of damages is the excess of the assessment, over the stipulated price. Western Railroad v. Babcock, (6 Met.) 47 346. 89 In an action for breach of a contract to convey land, the plaintiff cannot recover the expenses of erecting a building on other land belonging to him, by reason of his inability to erect a similar building, on the land contracted for. Warner t>. Bacon, (8 G.) 74 397. 90. In such an action, evidence that the de- fendant was induced to make the contract, by false and fraudulent suggestions of the plaintiff, respecting the incumbrances upon land con- veyed by him to the defendant, by reason whereof the defendant spent money thereon, is inadmissible for any purpose. Warner v. Bacon, (8 G.) 74 397. 91. A bond to give the obligee a good opera- tive deed to a certain number of acres, from, unsold land owned by W. at his decease implies that so much land remains unsold, and is broken if there is no unsold land at the time. Loomis ». Wadhams, (8 G.-) 74 5SJ. 92. If the obligor owns such land, it is the obligee's duty to select the number of acres, in season to enable the obligee, to have the deed ready at the specified time; and upon the fail- ure to convey any land, the measure of damages is the value of such land as the obligee might have selected. Loomis v. Wadhams, (8 G.) 74 657. (3.) Warranty; Including deceit. [See, also, Fbaud, II; V, (1); House; Sale, H[.] 93. The measure of damages for breach of a warranty, is the difference between the actual value at the time of the purchase, and that of the property, as it would have been, if it was as warranted. The same rule holds in an action for deceit. Matthews v. Bliss, (22 P.) 39 48; Coolidge v. Brigham, (1 Met.) 42 547; Medbury «. Watson, (6 Met.) 47 346; Stiles v. White, (11 Met.) 52 356; Eeg- gio v. Braggiotti, (7 C.) 61 166; Tuttle «. Brown, (4 G.) 70 457; "White «. Sawyer, (16 G.) 82 586; Whitmores. South Boston I. Co., (2 A.) 84 52; Brown v. Bigelow, (10 A.) 92 243; Morse v. Hutchins, 102 439; Springer ■o. Crowell, 103 65; Woodward *. Powers, 105 108. 94. Where the warranty or representation relates to a note, which has been paid, the whole amount may be recovered. Sibley v. Hulbert, (15 G.) 81 509. ' 95. So where the chattel is of no value. Grant v. Mellen, 134 335. 96. Consequential damages may also be re- covered, as where diseased animals, warranted sound, communicated the disease to others. Bradley v. Rea, (14 A.) 96 20. 97. So where a warranted vessel was sent to sea, and condemned in a foreign port. Tuckwell v. Lambert, (5 C.) 59 23. 98. Damages for breach of warranty may be interposed in an action for the price. Morse v. Brackett, 98 205. 99. As to damages against an attorney, for falsely representing to a deputy sheriff, that he had authority to execute a bond, of indemnity, for selling property upon execution. Jones v. Wolcott, (2 A.) 84 247. 100. As to damages in a special case for fraud in inducing the sale of land. Cheney v. Gleason, 125 166. (4.) Miscellaneous rulings. 101. As .to damages for breach of a contract not to trade, upon sale of a stock in trade. Doyle «. Dixon, 97 208. DAMAGES, III, (4); IV, (1). 325 102. As to damages in an action by an officer against the receiptor of goods, seized under an attachment or execution. Wakefield v. Stedman, (13 P.) 29 562; Bancroft ». Parker, (13 P.) 30 192; Bursley i). Hamilton, (15 P.) 32 40- Jones v. Richardson, (10 Met.) 51 481. 103. As to damages, where a creditor delays selling goods, sent him by his debtor to sell and apply on the debt. Patterson v. Currier, 106 410. 104. As to damages in an action by a princi- pal against his factor, for delaying the sale of the goods, or refusing to deliver up moneys and evidences of debt. Nickerson v. Soesman, 98 364; May- nard v. Pease, 99 555. 105. As to damages in an action by a con- signor against a consignee, who has advanced money, for selling goods at a less price than that feed by the plaintiff. Dalby v. Stearns, 132 230. 106. The damages for failure to build ma- chines in a certain time, is the difference be- tween the contract price and the cost of build- ing them by another. Weed ». Draper, 104 28 107. For other rulings as to damages upon sue 1- a contract, see Weed «. Draper, 104 28. 108. As to damages in an action by a bank, which had loaned money upon a mortgage of land, and houses to be built thereon, for breach of a covenant by a third person, that the houses should be built in a workmanlike manner, and at a certain cost. Norway Plains S. Bk. v. Moors, 134 129. 109. The measure of damages for breach of an agreement to accept a draft for the drawer's accommodation, when it is still in his hands, is his Iocs and inconvenience. Ilsley v. Jones, (12 G.) 78 260. 110. The rate of exchange is not recoverable upon a contract, other than a bill of exchange, to pay money in a foreign country. Adams v. Cordis, (8 P.) 25 260; Alcock v. Hopkins, (6 C.) 60 484; Lodge v. Spooner, (8 G.) 74 166; Hus- sey ». Farlow, (9 A.) 91 263. 111. But exchange is recoverable against an agent, who neglects to remit money to a foreign country, as his duty requires. Dodge «. Perkins, (9 P.) 26 368. 112. As to the damages for breach of a con- tract by owners of a fishing schooner, to employ the plaintiff as her master, where he had engaged his crew at fixed wages. Eldredge ». Smith, (13 A.) 95 140. 113. A partner, whose fellow-partners, upon dissolution, agreed to save him harmless from the firnVs debts, may recover against them the sum, paid by him on a separate compromise of his liability, upon a judgment against all. Brewer fl.Worthington, (10 A.) 92 329. 114. Damages upon a contract to pay a debt of the 'promisee are the debt and interest, although he has not paid it. Pumas v. Durgin, 119 500. 115. Damages in an action by a father for the earnings of his infant son, employed without his consent, are not what he earned in fact in the defendant's service, but what the son might have recovered, if he had been competent to contract. Weeks *. Holmes, (12 C.) 66 215. 116. Damages for not removing the defend- ant's barn, according to contract, to a greater distance from the plaintiff's house, cannot be reduced by proof that he allowed the plaintiff to occupy the barn gratuitously. Prentiss v. Barnes, (6 A.) 88 410. 117. Damages against an attorney for breach of a contract to satisfy a judgment, upon pay- ment of a note yiven by the judgment debtor, are the amount of the judgment, with costs, paid in satisfaction theroof, and to obtain the debtor's discharge from arrest. Smith v. Way, (6 A.) 88 212. 118. As to damages upon a contract, in con- sideration of discontinuing an excavation to procure earth for a causeway, to procure else- where the earth needed, and pay the plaintiff for increased expenses, etc., where the plaintiff had let the work to a sub-contractor. Snellingfl. Lynch, (5 A.) 87 443. 119. Damages in an action by the assignee of a claim against the government, against his as- signor, where another collected the claim under a prior authority from the defendant, are the sum paid for the assignment, with interest at the legal rate here, and not at the place of con- ' Eaton v. Melius, (7 G.) 73 566. 120. Damages in an action by a ship -owner against a shipper, who wrongfully re- moves his goods, before the vessel has broken ground for the voyage, are the stipulated freight, less the freight actually earned, or which might have been earned by reasonable diligence. Bailey v. Damon, (3 G.) 69 92. 121. In contract against a carrier for loss of a family portrait, the value to the plaintiff, and not the market value, measures the damages. Green t>. Boston & L. Railroad, 128 221. 122. In an action for bre.ich of a written agreement, executed by the plaintiff, his infant son, and the defendant, for the employment by the defendant of the son duririg his minority, the damages include the reasonable expenses of the plaintiff in finding new employment for the son; the wages actually earned by the son being allowed in diminution of damages. Dickinson ». Talmage, 138 249. IV. Rules applicable to particular Ac- tions op Tort. TAs to evidence in mitigation of damages, see Libei, and Slander, VI, (2); and post, IV, (3), (4)/| (1.) Vindictive or punitive damages; mental suffering. 123. Qu., whether exemplary, vindictive, or punitive damages can ever be awarded. Barnard v. Poor, (21 P.) 38 378; Aus- tin *. Wilson, (4 C.) 58 273. 326 DAMAGES, IV, (1), (2), (3). 124. They cannot be awarded in an action for an injury also punishable by indictment. Austin v. Wilson, (4 C.) 58 273. 125. Damages may be awarded for injury to the plaintiff's feelings, caused by a personal in- jury, however slight. Canning v. Williamstown, (1 C.) 55 451; Tyler v. Pomeroy, (8 A.) 90 480; Smith ». Holcomb, 99 552. 126. Or by seduction. Phillips v. Hoyle, (4 G.) 70 568; Hatch v. Puller, 131 574. 127. Or by harboring and secreting the plain- tiff's child. Stowe v. Heywood, (7 A.) 89 118. 128 Or in an action qua/re elomswm fregit, where the defendant has acted in wilful disre- gard or careless ignorance of the plaintiff's rights Meagher v. Driscoll, 99 281; Fille- brown ,«. Hoar, 124 580. See, also, Paine «. Farr, 118 74. 129. But grief for illness of members of his family is not an element of damage. Fillebrown v. Hoar, 124 580. Con- tra, semble, Hunt v. Lowell G. L. Co., (1 A.) 83 343. 130. And where there is nothing in the nature of the injury to the plaintiff's rights, which would involve injury to his feelings, and. it was not accompanied with any contuma- cious or insulting word or act, damages for wounded feelings cannot be given. White v. Dresser, 135 150. 131. In an action of contract against a rail- road company for refusing to carry the plain- tiff on its train, where the conductor caused him to be arrested for evading his fare, his mental sufferings, and his discomfort and ill- ness, in consequence of the arrest, are not elements of damages, although they would have been in an action of tort. Murdock v. Boston & A. Railroad, 133 15. 132. Wantonness or mischief of the defend- ant's servant, within the scope of his employ- ment, will enhance the damages in an action for a wilful injury to the person. Hawes v. Knowles, 114 518. 133. In slander, the plaintiff may testify to, and recover for, his mental sufferings, although damages therefor are not specially alleged in the declaration. Chesley v. Tompson, 137 136. See, also, Hastings «. Stetson, 130 76; Mar- ble 1). Chapin, 132 225; Mahoney v. Belford, 132 393. (2.) Two or more defendants. 134. In trespass for injury by two dogs, each owner is liable only for the iniury by his own dog. Buddington «. Shearer, (20 P.) 37 477. 135. In trover, if one defendant is defaulted and one found guilty, the assessment of dam- ages and judgment are joint. Gerrish v. Cummings, (4 C.) 58 391 136. In trespass de bonis, where all are de. faulted, all are liable for all the damages, even although it appears before the assessor that one did not participate. Gardner v. Field, (1 G.) 67 151 See, however, Folger«. Fields, (12 C.) 66 93. 137. In trespass qua/re clauwm, if the de- fendants sever in pleading, and all are found guilty, but several damages are assessed, the plaintiff may have judgment against all . Curtis, (7 A.) 89 470. See, however Stickney ». Allen, (10 GO 76 352. 181. Where the goods have been returned and received, the measure of damages is the is the difference in values at the time of conver sion and return, with the expenses, if any jn. curred by the plaintiff . Greenfield Bk. v. Leavitt, (17 P.) 34 j. Lucas v. Trumbull, (15 G.) 81 306, ' -82. In trespass de bonis, the defendant al- though acting without authority, may miti- gate, by showing that the goods have gone to the use of the true owner. , Squire i>. Hollenbeck, (9 P.) 26 551- Leggett v. Baker, (13 A.) 95 470. ' 183. Where the defendant, acting fairly and upon a claim of right, has paid money for freight, or other necessary expenses, which the plaintiff would have been compelled to pay such expenses may be deducted from the value! so as to mitigate the damages. King v. Fowler, (14 P.) 31 238' Clark v. Dearborn, 103 335; Whitney v. Beckford, 105 267; Stollenwerck t Thacher, 115 224. 184. But where such payments were not necessarily made, or were not legally chargea- ble to the plaintiff, they cannot be allowed. Tuxworth i). Moore, (9 P.) 26 347. 185. Where a shipmaster abandons the voy- age, and wrongfully sells the owners' property, the subsequent collection by them from him of part of the proceeds, merely reduces damages. Brown v. Smith, (12 C.) 66 366. 186. Where, at the time of the conversion, the defendant had a lien upon the property, or was entitled to a portion thereof, his interest will be deducted from the value to fix the dam- mages. Chamberlin v. Shaw, (18 P.) 35 278; Fowler v. Gilman, (13 Met) 54 267, Briggs v. Boston & L. Bailroad, (6 A.) 88 246. (5.) Trespass upon, or injury to, real property. LAs to damages for wounded feelings, see ante, IV, (1). As to damages in real actions, see, also, Real Action, IV.l 187. As to treble damages under obsolete statutes, see Prescott v. Tufts, 4 146; Peiroe «. Spring, 15 489; Reed «. Davis, (8 P.) 25 514. 188. In an action for diverting the waters of a stream from the plaintiff's mill, the fact that part of the water was returned to the stream, may be considered in estimating damages. Mannville Co. v Worcester, 138 89. 189. The law presumes damages, where one's right to real property is invaded, without proof of actual damage. Bolivar M. Co. 0. Neponset M. Co., (16 P.) 33 241. 190. Where a building has been, without right, blown up to stay a conflagration, the jury, in estimating the damages, should determine the value with reference to the peril. Parsons t Pettingell, (11 A) 93 507. 191. In determining damages for pulling down the plaintiff's unfinished building, the DAMAGES, IV, (5), (6). 329 cost of finishing it, or the rent if it had been finished, cannot be considered. Bennett v. Clemence, (6 A.) 88 10. 192. Damages for setting back water, so as to render a mill privilege useless, in an action by a mortgagee, are interest on. the value of the privilege, if unobstructed, from the time of the plaintiff's taking possession. Hatch «. Dwight, 17 289 193. Where no actual injury is done to th6 land, the plaintiff cannot have substantial dam- ages for a levy, although accompanied with a fraud. Spear v. Hubbard, (4 P.) 21 143 194. In trespass for entering upon the plain- tiff's seashore, and removing a wreck, the value of the wreck, as against a stranger, is the measure of damages. Barker e. Bates, (13 P.) 30 255. 195. In estimating damages for filling up a ditch on the defendant's land, thereby obstruct- ing the flow of water on the plaintiff's land, if the plaintiff's property has been benefited there- by, an allowance therefor will be made. Luther «. Winnisimmet Co., (9 C.) 63 171. 196. For wrongfully obstructing a house drain, damages may be recovered for inconven- ience and annoyance, by flooding the cellar, disagreeable smells, insects, etc., and expenses of removing the nuisance, and necessary changes and repairs. Emery i>. Lowell, 109 197. See, also, Shaw v. Cummiskey, (7 P.) 24 76. 197. In an action for breaking aajentering the plaintiff's close, and placing grswel there- on, the plaintiff, upon the question of dama- ges, may prove the cost of removing the gravel therefrom. Holtu. Sargent, (15 G.) 81 97. 198. Damages, in an action for maliciously burning the plaintiff's building, are not affected by payment to the plaintiff of a loss by the in- surers, nor by his agreement to pay them all that he recovers above his actual loss. Hayward v. Cain, 105 213. 199. Damages for taking land bordering on a stream, by a water company, are the fair market value of the land, not its market value to the company as a storage basin, or the like. Moulton ii. Newburyport "Water Co., 137 163. (6.) Officer. [See, also, attachment ; Execution; Office and Officer; Beplevin; Trespass; Trover; Writ.] 200. Where an officer abuses his process, as by breaking the plaintiff's house to serve an attachment, the process is no mitigation of dam- ages for an assault; but where he enters lawfully he may show that fact in mitigation, although the writ was not returned into court. Rockwood v. Allen, Ulmer, 12 163. 7 254; Tyler v. .son v. Henry, (11 P.) 28 379; Paine i>. Parr, 118 74. 201. The measure of damages in an action against an officer, for not levying an execution on goods attached, is the value of the goods when he ought to have levied, not exceeding the debt. 5 Vol. I — 42 202. In such an action, the officer cannot show that ''the expense of keeping the goods, be- tween the attachment and the execution, would have exceeded their value, or that the debtor is insolvent. Tyler v. Ulmer, 12 163. 203. But an officer sued for not levying an execution, or not attaching goods, may show, in mitigation or in bar, that the goods, or part of them, were not the defendant's property . Tyler v. Ulmer, 12 . 163. 204. A defendant in replevin, who has ob- tained judgment for a return, where the goods have disappeared, may recover, for taking an insufficient replevin bond, the value of the goods, with interest to the time when he might have procured a dismissal. O'Grady «. Keyes, (1 A.) 83 284. 205. That the goods are still in the possession of the plaintiff in the replevin, is matter of mitigation, in an action for taking an insuffi- cient bond. Case v. Babbitt, (16 G.) 82 278 206. In an action against a sheriff for an escape, for taking insufficient bail, or for taking an irregular bail bond, the presumption is that the debt measures the damages; but the de- fendant may mitigate, by showing the debtor's inability to pay, whether the latter has or has not absconded. Burrell v. Lithgow, 2 526; Porter «. Sayward, 7 377; Weld «. Bartlett, 10 470; Young v. Hosmer, 11 89; Nye v. Smith, 11 188; Rice v. Hosmer, 12 127; Shackford v. Goodwin, 13 187; Griffin®. Brown, (2 P.) 19 304; Brooks v. Hoyt, (6 P.) 23 468; Whitehead v. Varnum, (14 P.) 31 523; West v. Rice, (9 Met.) SO 564; Danforth «. Pratt, (9 C.) 63 318; Chase v. Keyes, (2 G.) 68 214. ' 207. But a sheriff, who untruly returns that he has taken bail, or does not deliver the bail bond, becomes bail, and cannot mitigate by showing the debtor's poverty. Simmons v. Bradford, 15 82; Seeley v. Brown, (14 P.) 31 177. 208. An officer, falsely returning that upon an execution sale of an equity of redemption, he gave notice, whereby a subsequent attach- ing creditor was prevented from obtaining satisfaction, is liable for the latter's debt and interest, not exceeding the value of the prop- erty. Whitaker ■». Sumner, (7 P.) 24 551; Whitaker v. Sumner, (9 P.) 26 308. 209. Where a purchaser's title is good from an independent source, he can only recover the fees and expenses paid the officer, in an action against him for neglect upon an execution sale. Sexton v. Nevers, (20 P.) 37 451. 210. Where an officer, knowing that a judg- ment was fraudulent as to part of the recovery, and that the attachment in the action had been vacated, has sold attached property under the execution, and returned the execution of a sub- sequent attaching creditor unsatisfied, he is liable for the latter's execution, not exceeding 330 DAMAGES, IV, (6), (7), (8), (9). the value of the property, and cannot deduct for the honest part of the other debt. Fairfield v. Baldwin, (12 P.) 29 388. See, also, Felton v. "Wadsworth, (7 C.) 61 587. 211. In an action by the plaintiff in a judg- ment against the magistrate for issuing an invalid execution, the debtor's poverty will mitigate damages. Noxon ii. Hill, (2 A.) 84 215. 212. As to damages in a peculiar case, where a sheriff was sued for attaching the plaintiff's exempt goods, and disturbing him (by means of a keeper), in the use and occupation of his barn. Clapp v. Thomas, (7 A.) 89 188. (7.) Carrier. [See, also, Cabbxeb, I; II : Negligence.] 213. The measure of damages against a carrier, for failing to deliver goods in time, is the difference between the market value at the place of delivery, when they should have been, delivered and that when they were delivered, with interest from the latter time. Ingledew t>. Northern Railroad, (7 G.) 73 86; Spring v. Haskell, (4 A.) 86 112; Harvey v. Connecticut, etc., Bailroad, 124 421. 214. Those damages cannot be increased by the fact that the consignee has sold the goods " to arrive," and has lost the sale. Scott v. Boston, etc., S. S. Co., 106 468. 215. Where no time for delivery is fixed, the time when the goods ought to have been de- livered, is, for the purpose of computing dama- ges, a reasonable time after they are shipped. Cutting v. Grand Trunk Railway, (13 A.) 95 381. 216. A carrier, transporting live animals, does not warrant them as against the consequences of their own vitality; but he must provide all suitable means of transportation, and exercise all care which the nature of the property re- quires. Smith v. New Haven, etc., Railroad, (12 A.) 94 531. 217. For failure to transport live animals seasonably, the measure of damages is the difference between their market value at the place of delivery, in good condition, when they ought to have been delivered, and that in their actual condition when they were delivered. Smith v. New Haven, etc., Railroad, (12 A.) 94 531. (8.) Stock of a corporation. 218. "Where a corporation has issued a new certificate of stock, upon the faith of a forged power of attorney to transfer the shares, it may recover, against the person presenting the certi- ficate, although in good faith, the costs and ex- penses of the suit against it by the true owner; dividends which it has been compelled to pay him; and the price paid to purchase shares to replace those transferred. Boston & Albany Railroad v. Richardson 135 473. 219. A shareholder may recover, for the re- fusal of the corporation to allow him to take his pro rata proportion of new stock, the excess of the market value above the par value, when the last instalment of the subscription is pay. able, with interest. Gray v. Portland Bk., 3 364. 220. A corporation, which refuses to allow a purchaser of its shares to transfer them on the books, and causes them to be attached and sold as the seller's property, is liable for the value at the time of the demand and refusal, with interest. Sargent v. Franklin Ins. Co., (8 P.) 25 90. 221. So if it refuses to issue a certificate to the purchaser. Hussey «. Manuf'rs, etc., Bk., (10 P.) 27 415; Wyman ®. American Powder Co., (8C.) 62 168. (9.) miscellaneous rulings. 222. As to partial injury to property, where the wrong is not wilful. Per Shaw, C. J., in Stone v. Codman, (15 P.) 32 297. 223. Damages for negligence in building a. cellar, are the difference between the value of the work as done, and its value as it ought to have been, done; and in computing this, the jury may allo|Mhe plaintiff his expenses for repair- ing defecw, and a reasonable sum for irrepara- bl G d.6f€JCtS Mouiton i>. McOwen, 103 587. 224. An unlicensed keeper of a livery stable can recover damages for a nuisance to his real property, caused by an escape of gas, but not for an injury to his business thereby. Sherman ®. Fall River I. Works, (5 A.) 87 213. 225. In an action by a mortgagee for a re- moval of fixtures, he can recover the full amount of the damages to the property, without refer- ence to the sufficiency of the security, and al- though the mortgagor has also sued. Gooding v. Shea, 103 360; Byrom v. Chapin, 113 308; King*. Bangs, 120 514. 226. But evidence that, after the injury, and before action brought, he soldthe property, un- der the power in the mortgage, for more than enough to pay his debt and prior incumbrances, is admissible in mitigation. King d. Bangs, 120 514. 227. A reasonable satisfaction to a prior mort- gagee bars the action; but a second mortgagee suing may show, that the fixtures were : M greater value than the sum paid to the tun mortgagee, and may recover the excess. Byrom v. Chapin, 1 13 308. IPor a ruling as to the measure of da^"^^*- action by a savings bank against its treasurer,^ «» selling its property to a committee, "9 r ^f 3 ^Shi himself and others, at the minimum jnce ttxea uj the resolution authorizing him, see Cobpobatiob, art. 195.1 DAMAGES, V. 331 V. Kecotjpment of Damages. [See, also, Release ; Set Off. As to recoupment of benefits against land damages, see Highway, IV, (5) : Railroad, II, (7) , Town, VI.] 228. In actions of contract, the doctrine of recoupment is well established in this Common- wealth. Carey v. Guillow, 105 18. See, also, Taft v. Montague, 14 282, overruling Everett v. Gray, 1 101; Harrington v. Stratton, (22 P.) 39 510; Dorr ». Fisher, (1C.) 55 271. 229. It is not novel, but is as ancient as the common law, and was early applied to actions founded in tort. Carey v. Guillow, 105 18. 230. The doctrine of recoupment rests upon the principle, that it is just and equitable to set- tle in one action, thus avoiding a multiplicity of suits, all claims growing out of the same contract or transaction. But it does not authorize the court to extend the statute of set off, and to allow a claim by way of recoupment, which is founded upon an independent and dis- tinct contract or transaction. In such a case the remedy is by cross action. Home Sav. Bk. v. Boston, 131 277. See, also, Bee Printing Co. v. Hichborn, (4 A.) 86 63; Sawyer v. Wiswall, (9 A) 91 39; Hodgkins v. Moulton, 100 309; Campbell ». Somerville, 114 334; Bartlett «. Farrington, 120 284; and Bill of Exchange and Promissory Note, V, (5). 231. Matters relied upon by way of recoup- ment must be specially pleaded, and cannot be relied upon as a defence for want of con- sideration. Hodgkins v. Moulton, lOO 309; Jackman ». Doland, 116 550. See, also, Burnett v. Smith, (4 G.) 70 50; Stacy v. Kemp, 97 166; Davis ». Bean) 114 358, 232. In an action a note, the defendant may prove a warranty or a fraud in the sale of the chattel, for which the note was given, and re- coup the damages occasioned thereby. Perley*. Balch, (23 P.) 40 283- Bur nett v. Smith, (4 G.) 70 50. See, also, Harrington v. Stratton, (22 P.) 39 510; Goodwin v. Morse, (9 Met.) 50 278: Davis v. Elliott, (15 G.) 81 90. 233. So, also, as to damages sustained by the plaintiff's act, in depriving him of a valuable part of the consideration. Stacy v. Kemp, 97 166. 234. For practical illustrations of these prin- ciples in actions founded upon contract, see the cases above cited; also Bowker v. Hoyt, (18 P.) 35 555; Hunt v. Otis Co., (4 Met.) 45 464; Moulton v. Trask, (9 Met.) 50 577; Adams j). Woonsocket Co., (11 Met.) 52 327. 235. In tort for fraudulent representations as to a horse exchanged for the plaintiff's, the de- pendent may recoup for fraudulent representa- tions made by the plaintiff as to his horse. Carey v. Guillow, 105 18. See, also, Davis v. Elliott, (15 G.) 81 90 236 As to the rule respecting recoupment between parties in pari delicto, and the rule respecting contribution between parties under like circumstances, see Campbell v. Somerville, 114 334; and Joint Liability, II. 237. In an action by a purchaser of land sold for taxes, against a city, for breach of the war- ranty in the collector's deed, the city cannot recoup or set off the taxes, although the plain- tiff, as a mortgagee in possession, is liable therefor. Home Sav. Bk. v. Boston, 131 277. 238. In an action by a lessor for rent, dama- ges for the plaintiff's trespass on the land cannot be recouped. Bartlett v. Farrington, 120 284. 239. In an action to recover for labor per- formed, if the benefit of the labor is lest by causes, for which the the plaintiff would be answerable in a cross action, the matter may be given in evidence in defence; but not if the loss is occasioned by persons, for whose acts the plaintiff is not responsible. Austin v. Foster, (9 P.) 26 341. See, also, Jones v. Kennedy, (11 P.) 28 125; Dodge «. Tileston, (12 P.) 29 328. 240. In an action by the owners of a vessel, of whom the master is one, to recover freight for goods delivered and accepted, the consignee cannot recoup for a loss by a failure to deliver cargo not put on board, although receipted fcr by the master in the bill of lading. The rem- edy is by action against the master or the con- signor. Sears v. Wingate, (3 A.) 85 103. 241. A partial failure of title, is not, in the absence of fraud, an admissible ground for re- coupment, in an action for the price of land conveyed with covenants of title. Bowley «. Holway, 124 395. 242. The rule is otherwise in an action for the price of personal property sold. Bowley v. Holway, 124 395. So neld, in an action upon a note given for land sold. Davis v. Bean, 114 358. 243. In an action upon a note given for land sold, it was held, that the defendant could not recoup damages, for false representations as to the quality and productiveness of the soil, and the number of acres within boundaries truly pointed out; the former being mere commenda- tions or expressions of opinion, and the latter relating to a matter, concerning which the de- fendant had the means of informing himself. Gordon v. Parmelee, (2 A.) 84 212. See, also, Gordon v. Parmelee, (15 G.) 81 413. 244. In an action for obstructing the natural flow of water to a mill, the defendant cannot reduce damages, by showing that, on other occa- sions, he had removed stones from the bed of the stream, thereby greatly benefiting the plain- tiff's mill. _ Talbot v. Whipple, (7 G.) 73 122. 245. But in an action for obstructing the free flow of water from the plaintiff's land, by fill- ing up the defendant's adjacent land, the jury are properly instructed to deduct from the plaintiff's damages, such benefits as his property has actually derived from the filling up. 332 DAMAGES, V— DEED. Luther v. Winnisimmet Co., (9 C.) 171. 63 246. Where the defendant, in an action upon an account annexed for goods delivered, sets up matters in recoupment, claiming damages ex- ceeding the plaintiff's demand, and also brings a cross action upon like allegations of damages, and both actions are tried together; and he re- fuses to elect, whether to avail himself of his claim in defence of the original action, or in support of the cross action; he is precluded from claiming that there was no delivery: and all his damages for breaches of the contract must be assessed, and first applied to cancel, wholly or partly, the plaintiff's claim under the contract, and for any excess he may recover in the cross action: but if there is no excess, the verdict goes against him in the cross action. And the judge should so instruct the jury. Star Glass Co. v. Morey, 108 570. See, also, Cook v. Castner, (9 C.) 93 266. [See further, on this subject, ante, I ; also Con- tract, IV, (4) ; VI,(2)/| Dangerous substance. [Action for injury by, see Action, arts. 3 to 6. See, also. Illuminating Fluid.] Dangerous weapon. LSee, also. Assault, I ; Indictment, VIII, (24).} 1. Where, upon the trial of an indictment, the judge ruled that a jack-knife, with which the assault was made, was a dangerous weapon, the court cannot, upon a bill of exceptions, which does not particularly describe the knife, determine that the ruling was erroneous. Comm. ■». O'Brien, 1 19 342. Deaf and dumb person. 1 May be tried for larceny. Comm. ». Hill, 14 207. Death. [Action for causing death under St. 1881, Ch. 199, §§ 1, 2 and 3; P. S., Ch. 73. § 6 ; Ch. 112, §§ 212, 2i3; see Carrier, IV, (1) ; under §§ 4 and 5 of the same statute; P. S., Ch. 52, § 171; see Highway, VI, (8). See, also, St. 1883, Ch. 243. Action for an injury resulting in death, before the statute of 1881, and in cases not within that statute, see Action, I; Abatement and Survivor, I, (1); Damages, II; Negligence. Ques- tions of evidence arising in such an action, see Evi- dence, art. 304. Indictment for negligently causiug death, see Carrieb,IV, (2); Homicide. Presumption of death, see Evidence, IV, (5); also Adultery; Polygamy.) Debt. I Action abolished, and included in actions of con- tract. St. 1851, Ch. 233 ; G. S., Ch. 129, § 1; P. S., Ch. Iii7, § 1,] 1. For rulings as to cases where the action formerly would or would not lie, see Gedney v. Tewksbury, 3 307; Smith v. Drew, 5 514; Storer 11. Storer, 6 890' Bigelow «. Cambridge Turnpike, 7 202- Porter v. Sayward, 7 377; Comm. t Green, 12 1; Green v. Dana, 13 493! Howard v. Howard, 15 196; Smith »' Lowell M. Ho., (8 P.) 25 178; Reed v Davis, (8 P.) 25 514; Howland v. Coffin' (9 P.) 26 52; Crane v. Keating, (13 p ') 30 339; Dennis v. Arnold, (12 Met.) 53 449; Knowles «. Eastham, (11 C.) 65 429' Perry e. Perry, (2 G.) 68 326; Allen v Allen, IOO 373. Greene ». Hatch, 12 195, and Gooch v. Atkins, 14 378, overruled. Debtor and creditor. [See Accord and Satisfaction; Application of Payments; Assignment; Attachment; Bank, ruptcy; Chattel Mortgage; Composition: Equity Jurisdiction ; Fraud ; Insolvent ; Mora- gage; Payment; Pledge; Subrogation.] Deceit. [See Cheat; Conspiracy; Damages, III, Fraud ; Sale, I, (3).] Declaration. [See Pleading. IIIJ Declarations, admissions, etc. [See Evidence, VI.1 Decree. [See Equity Jurisdiction ; Equity Pleading and Practice, II, (7); Former Adjudication; Judgment ; Probate Court.] Dedication. [See, also, Highway, II.l 1. For a ruling that a certain deed and plan, and acts of the grantees and of the city, did not constitute a dedication to the public of a tri- angular piece of land, left blank upon the plan, see Atty.-Gen'l ». Whitney, 137 450. Deed. I. General Rules. (1.) Parties. (2.) Validity in general; form; execution; effect. (3.) Delivery. (4.) Conditional delivery; escrow. II. Recording. (1.) Acknowledgment and proof. DEED, I, (1). 333 (2.) Recording; failure to record; effect thereof. (3.) Notice of unrecorded deed. III. Interpretation. (1.) General principles of interpretation. (2.) Reference to a plan or other instrument. (3.) The title or interest conveyed. (4.) Rulings relating to grants and reserva- tions of water rights. (A.) Aqueduct. (S.) Water power. (C.) Dam. (D.) Flowage. (M.) Miscellaneous. (5.) Description of the property. (6.) Appurtenances and incidents. (7.) Exceptions, restrictions, and reservations. [Aa to matters peculiar to a mortgage, sec Mort- gage. As to covenants in a deed, see Covenant, II. As to undertakings implied by an acceptance of a deed, containing stipulations in behalf of the grantee see Contract, Ii (1); Covenant, II. As to con- ditions in deed, and what restrictions constitute or do not constitute conditions, see Condition, I, (1). As to a deed in execution of a power, see Power. As to an officer's deed, see Execution; Meadow; Taxation. As to a deed executed in blank, see Alteration of Instrument. For other matters relating to deeds, see Adverse Possession; Alien and Citizen; Boundary .Line; Dower; Duress; Easement; Estate tail; Fraud; Homestead; Indian; Infant; Joint Tenants; Lunatic, etc.; Perpetuity; Seal; Seisin.] I. General Rules. (1.) Parties. [As to deeds of infants, lunatics, or Indians, see those titles ] 1. The husband's assent^ in writing to his wife's deed, required by St. 1857. Ch. 249, § 2, is sufficiently shown by the insertion of his name in the attestation clause, " in token of relinquishment," etc., with his signature and seal. Chapman v. Miller, 128 269. See, also, Hills v. Bearse, (9 A.) 91 403; Weed Sewing M. Co. v. Emerson, 115 554; Child v. Sampson, 117 82. 2. As to the effect of the former provisions, requiring the husband's assent, see Bruce v. Wood, (1 Met.) 42 542; Beal v. Warren, (2 G.) 68 447; Jewett v. Davis, (10 A.) 92 68; Perkins v. Rich- ardson, (11 A.) 93 538; Townsley v. Chapin, (12 A.) 94 476; Wales *. Cof- fin, (13 A.) 95 213; Melley v. Casey, 99 241. And now his assent is required only to bar his tenancy by the curtesy. St. 1864, Ch. 198; St. 1874, Ch. 184, § 1; P. S., Ch. 147, § 1. 3. Under G. S., Ch. 108, § 3, his assent to her mortgage was sufficiently shown by sign- ing the deed as an attesting witness, or by signing as guarantor her promissory note, ex- pressed to be secured by the mortgage. Cormerais s. Wesselhoeft, 114 550; Child «. Sampson, 117 62, [As to the wifes release of her homestead right, see Homestead, II.] 4. At common law, the separate deed of a married woman is voidable, not void. Fowler*. Shearer, 7 14; Concord Bk. v. Bellis, (10 C.) 64 276; Warner v Crouch, (14 A.) 96 163. 5. The statute, requiring her husband's assent, did not apply to the execution of a power of sale in a mortgage. Cranston v. Crane, 97 459. 6. For other rulings, relating to a married woman's deed, under the former statute, see Lithgow v. Kavenagh, 9 161; Lufkin v. Curtis, 13 223; Melvin v. Locks & Canals, (16 P.) 33 137; Bruce 1>. Wood, (1 Met.) 42 542; Gerrish v. Mason, (4 G.) 70 432; Bartlett «. Bartlett, (4 A.) 86 440; Dodge ®. Nichols, (5 A.) 87 548. {.As to the sufficiency of a married woman's re- lease of her contingent right of dower, see Dower, n.i 7. Where husband and wife are seized by the entirety, and the wife joins in his deed in token of her release of dower and homestead, or "of her free consent," this does not bar her right of survivorship. Wales v. Coffin, (13 A.) 95 213; Pierce v. Chace, 108 254. 8. Where father and son bear the same name, there is no presumption, that a deed to a grantee by that name is a deed to the father, and oral evidence will determine who is the grantee intended. Simpson u. Dix, 131 179. See, also, Kingsford v. Hood, 105 495. 9. Where A and B were in partnership, and B died, and A was appointed his administrator, a mortgage to "A and the estate of B," conveys the legal title to A, half to his own use and half as administrator. Look v. Kenney, 128 284. See, also, Lawrence v. Fletcher, (8 Met.) 49 153; Pomeroy v. Latting, (2 A.) 84 221. 10. And his deed, pursuant to the power of sale, is sufficient, without describing himself as administrator. Look v. Kenney, 128 284. See, also, Cooper v. Robinson, (2 C.) 56 184; Sheldon «. Smith, 97 34; Hall v. Bliss, 118 554. 11. A deed to the heirs at law of a deceased person is good, and they may be identified by oral evidence; but a deed to the heirs of a liv- ing person is void for uncertainty. Shaw v. Loud, 12 447; Hull v. Leon- ard, (1 P.) 18 27. 12. A deed to inhabitants of a specified teni- tory; to the trustees of a specified unincorpor- ated society; or to a partnership, by its firm name, is good. Thomas v. Marshfield, (10 P.) 27 364; Lawrence v. Fletcher, (8 Met.) 49 153; Pomeroy «. Latting, (2 A.) 84 221. 13. A deed to a well-known voluntary unin- corporated association, not of the class author- ized to h-ld land by G. S., Ch, 30, § 24; P. S., Ch. 39, § 9, may be construed as a grant to those who are properly described by that title, and renders them tenants in common of the land. Byam v. Bickford, 140 31. 334 DEED, I, (2). 14. The deed of a trustee conveying all the right, title, and interest of the cestui que trust, does not convey the legal title. Titcomb v. Currier, (4 C.) 58 591. 15. Separate conveyances by trustees, other than of a charity or public trust, are void. Chapin v. Chicopee TJn. Soc, (8 G.) 74 580. (3.) Validity In general; form; execu- tion: effect, [See, also. Bond ; Executor and Admtnistiu.- tob, IV. As to the effect, as a covenant to stand seized, of a deed taking effect in future, see Covb- nant, II, (6).l 16 A wafer, or other tenacious substance, upon which an impression may be made, is a sufficient seal. Tasker «. Bartlett, (5 C.) 59 359. 17. An impression of the seal of a corpora- tion directly upon the paper, although made by the printer, while or after printing the instru- ment, is a good seal, if made by direction of the corporation. Hendee v. Pinkerton, (14 A.) 96 381; Royal Bk. v. Grand J. R. R. & D. Co., 100 444. 18. An instrument, purporting in the body thereof to be made by a corporation, and signed by the proper officer in his own name, adding his official title, and sealed with his own seal, is good, if a seal is not required, otherwise it is not good. Brinley*. Mann, (2 C.) 56 337; Sher- man v. Fitch, 98 59. 19. But if the seal of the corporation is used, it is the deed of the corporation. Hutchins «. Byrnes, (9 G.) 75 367; Haven v. Adams, (4 A.) 86 80. 20. See further, as to the sufficiency of execu- tion by a corporation, G. S., Ch. 3, § 7, subd. 15, P. S., Ch. 3, § 3, subd. 19; also the follow- ing cases: Damon v. Granby, (2 P.) 19 345; Mill Dam Foundery «. Hovey, (21 P.) 38 417; Stebbins v. Merritt, (10 C.) 64 27; Bates v. Boston & New York 0. Railroad, (10 A.) 92 251; Murphy v. "Welch, 128 489. 21. Two or more persons may seal by the same seal. Tasker v. Bartlett, (5 C.) 59 359. 22. It is not necessary that the deed should recite that the grantor has affixed his seal. Mill Dam Foundery v. Hovey, (21 P.) 38 417. 23. An instrument not under seal is insuffi- cient as a mortgage of real property, or a con- veyance of any title to real property. Stewart ». Clark, (13 Met.) 54 79; Hutchins «. Byrnes, (9 G.) 75 367. 24. And a subsequent reformation, by adding a seal, under a decree in equity, will not validate a sale under a power, contained in an unsealed mortgage of realty. Springfield Sav. Bk. ». Springfield Cong. Soc., 127 516. 25. Proof of the grantor's signature is evi- dence of execution for a jury, although he testifies that there was no seal thereon when he signed it. Brolley v. Lapham, (13 G.) 79 294 26. A separate instrument without a seal can- not operate as a defeasance of a deed, but a writingon the back of the deed will so operate Kelleran v. Brown, 4 443; Stockmen Fairchild, (5 P.) 22 181. 6 ' 27. A grantor is bound by his deed, although his wife's release of dower, etc., is not executed so as to bind her. Furnas v. Durgin, 119 500. 28. If one party executes his part of an in- denture, it is good as his deed, although the other does not execute it. Esson*. Tarbell, (9 C.) 63 407; Cod- man ». Hall, (9 A.) 91 335; Carroll «. St. John's Soc, 125 565. 29. A deed cannot bind a party sealing it, unless it contains words expressing an intention to be bound. Catlin v. "Ware, 9 218. 30. A sealed lease to two persons named, executed by one of them and a third person, does not render the persons executing it jointly liable, although they are described as officers of an unincorporated society, and were in fact such officers. Hubbard ». Knous, (3 G.) 69 567. 31. Where a deed, duly executed, but not recorded, is destroyed, and a new deed is after- wards executed and antedated, without the grantee's knowledge, for the mere purpose of putting the title as it was before, the second deed is good. Marsh v. Austin, (1 A.) 83 235. 32. But the mere cancelling of a deed does not revest the title. Hatch «. Hatch, 9 307; Holbrook v. Tirrell, (9 P.) 26 105. 33. Where, however, the grantee in an un- recorded deed, sells the land to another, and by agreement his deed is cancelled, and the grantor therein conveys to the third person, the new conveyance is good, except as against incum- brances by the first grantee, of which the sec- ond has notice. Marshall v. Fisk, 6 24; Comm. v. Dudley, 10 403; Holbrook «. Tirrell, (9 P.) 26 105. 34. Where A conveyed to B, by an unre- corded deed, and afterwards, to rescind the transaction, B returned the "deed, and then fraudulently procured possession thereof and recorded it, his mortgagee without notice takes a good title. Dana v. Newhall, 13 498. 35. A deed becomes inoperative,if the grantee recovers back the consideration, on the ground that the grantor had no right to convey. Porter «. Hill, 9 34; Stinson *. Sumner, 9 143. 36. A deed thirty years old, with continued possession, proves itself. Green «. Chelsea, (24 P.) 41 71. 37. A deed containing no words of graf' ** sufficient to convey a fee, if such appears to De the intention from other words used. . Bridge v. Wellington, 1 219; ^ asseli v. Coffin, (8 P.) 25 143. DEED, I, (2), (3). 335 ■ 88. The expression of a consideration is not necessary lo the validity of a deed. Boynton v. Rees, (8 P.) 25 329. 39. A deed imports a consideration, and ex- cept for fraud, of in favor of the grantor's creditors, the consideration cannot be inquired into. Trafton ». Hawes, 102 533. See, also, Beal 0. Warren, (2 G.) 68 447. 40. A deed is good against the grantor and his heirs, although the consideration was the composition of a felony. Worcester v. Eaton, 1 1 368. 41. Influence properly gained, although used selfishly and unjustly, will not avoid a deed, unless there is fraud or duress, or such influ- ence that the grantor is no longer a free agent. Howe v. Howe, 99 88. 42. The burden of proving insanity or undue influence is upon the party alleging it. As to the admissibility of the grantor's declarations, Howe v. Howe, 99 88. 43. Upon the question whether the grantor executed the deed, with knowledge of its con- tents, his testimony that he never intended to convey the land to the grantee is admissible. Perry 0. Porter, 121 522. See, how- ever, Muhlig 0. Fiske, 131 110. [Upon the general question of validity, see further. Duress: Fraud ; Lunatic, etc. As to the validity oi a deed of land, whereof the grantor is disseised, see Adverse Possession ; creating future estates, see Perpetuity; in execution of a power, see Mort- gage ; Power. Validity of tax deed, see Taxa- tion; of a sheriff's deed, see Execution. As to the effect of a deed in conferring seisin, see Seisin. As to proof of an attested deed, see Evidence. As to a deed executed with the grantee's name in blank and filled in before delivery, see Alteration of In- strument.] 44. A deed is good without an attesting wit- Dole v. Thurlow, (12 Met.) 53 157; Thacher 0. Phinney, (7 A.) 89 146. 45. A deed, executed without authority, may he ratified orally. Mclntyre v. Park, (11 G.) 77 102. 46. An acknowledgment, by the grantor, suffices for that purpose. Bartlett 0. Drake, 100 174. 47. Where one of two partners signs the name of both to a lease, and both enter, this is a ratification by the other. Holbrook v. Chamberlin, 116 155. 48. Where A consented to sell a lot to B, and B fraudulently inserted that and another lot in the deed, A, having discovered the fraud after receipt of the contract price, may retain the money, and avoid the deed as to the second lot. Walker ». Swasey, (2 A.) 84 312. 49. The words "grant, assign, etc., all man- ner of goods, chattels, debts, moneys, and all other things of me whatsoever, as well real as personal," do not pass real property. Ingell 0. Kooney, (2 P.) 19 362. 50. Por a similar ruling upon another instru- ment of the same character, see Hunting v. Russell, (2 C.) 56 145. (3.) Delivery. 51. Delivery of a deed to a third person for the benefit of the grantee is valid, if afterwards assented to by the latter: and after his death, his assent may be shown by his declarations. Marsh v. Austin, (1 A.) 83 235. 52. Delivery of a deed by the grantor to the register, is not a sufficient delivery to the grantee; but the grantee's subsequent reception or subsequent assent, makes such a delivery good as of the latter time, with respect to inter- vening rights: and as of the former time, with respect te the grantor and his heirs. Maynard 0. Maynard, lO 456; Harri- son 0. Phillips Academy, 12 456; Hedge 0. Drew, (12 P.) 29 141; Samson v. Thornton, (3 Met.) 44 275; Waugh 0. Riley, (8 Met.) 49 290; Thayer t>. Stark, (6 C.) 60 11; Molineux v. Coburn, (6 G.) 72 124; Jordan 0. Farnsworth, (15 G.) 81 517; Hawkes v. Pike, 105 560; Sanderson v. Edwards, 111 3B5 53. Where, however, it is a part of the con- tract, that the deed shall be recorded before it is manually delivered to the grantee, delivery to the recording officer is equivalent to delivery to the grantee. Shaw «. Hayward, (7 C.) 61 170. 54. A delivery may be inferred from cir- cumstances, although the deed is found in the grantor's house after his death. Snow «. Orleans, 126 453. 55. An attestation clause, signed by a wit- ness, is presumptive evidence of a delivery. Moore 0. Hazelton, (9 A.) 91 102; Howe 0. Howe, 99 88; Gragg 0. Learned, 109 167. 56. Possession by the grantee is prima facie evidence of delivery. Ward 0. Lewis, (4 P.) 21 518; Chand- ler 0. Temple, (4 C.) 58 285; Valentine 0. Wheeler, 116 478. 57. So where an unrecorded deed is found among the grantee's papers after his death. Butrick 0. Tilton, 141 93. 58. And a lost deed, purporting in the attes- tation clause to have been delivered, is pre- sumed to have been in the hands of the gran- Powers 0. Russell, (13 P.) 30 69. 59. But proof that it was in the grantor's hands rebuts that presumption; and proof that the grantee was not present when it was attest- ed, rebuts the presumption of delivery arising from the attestation clause. Powers v. Russell, (13 P.) 30 69. 60. Where A conveys to B, and afterwards B conveys the same land to C, referring to the former deed, this is evidence of delivery to B, and acceptance by him. Locke 0. Homer, 131 93. * 61. The date of a deed is only presumptive evidence of the time of delivery, which may be shown by oral testimony. Fairbanks 0. Metcalf, 8 230; Battles 0. Fobes, (21 P.) 38 239; Smith 0. Por- ter, (10 G.) 76 66; Shaughnessey v. Lewis, 130 355; Orcutt 0. Moore, 134 48. [Sec, also, Chattel Mortgage, II, (3).] 336 DEED, I, (3), (4); II, (1). 62. So where a deed to a corporation was dated before its charter. Rotch's Wharf v. Judd, 108 234. 63. It is no objection to the validity; of a deed that it was recorded before it was delivered. Parker «. Hill, (8 Met.) 49 447. 64. Where the grantor did not deliver the instrument, but requested the grantee to have it recorded, when he (the grantor) should die, the deed is a nullity, as contrary to the statute of wills. Shurtleff «. Francis, 118 154. See, also, Mills «. Gore, (20 P.), 37 28. 65. A delivery is ineffectual, although there is a manual transfer of the instrument, unless it is delivered with the intent that it should then be effectual. Shurtleff v. Francis, 118 154. 66. A delivery to one of two or more gran- tees is a delivery to all, unless the others dis- sent, and oral evidence cannot be adduced to show that the grantor delivered it for the bene- fit of the former only. Hubby «. Hubby, (5 C.) 59 516. See, also, per Shaw, Ch. J., in Perry v. Holden,. (22 P.) 39 269. 67. A delivery to an agent of a corporation, who was authorized to negotiate, is delivery to and acceptance by the corporation. Western Railroad v. Babcock, (6 Met.) 47 346. 68. Where the parties met, the grantor sign- ed the deed, the grantee paid part of the con- sideration, and the grantor took it to procure his wife to execute it, this does not amount to a delivery. Parker v. Parker, (1 G.) 67 409. 69. Where the grantee, on receiving the deed, gave the grantor a written agreement to return it on demand, or pay the purchase price, the title passes. Howe *. Dewing, (2 G.) 68 476. 70. Two or more deeds, made simultaneously, take effect in the order which will best carry out the parties' intention. Pomeroy v. Latting, (15 G.) 81 435. See, also, Haven t>. Foster, (14 P.) 31 534. 71. Where a grantee, simultaneously with the delivery of the deed, executes two mortga- ges, one to the grantor for part of the purchase money, the other to a third person, and the three deeds are entered together for record, the former mortgage takes precedence. Clark v. Brown, (3 A.) 85 509. 72. Where the two parts of an indenture were executed by one party, and some of the other parties, and one of the latter took them to procure the signatures of his co-partners, which were obtained to one part of the inden- ture only, and the parts were never exchanged, neither part is deemed delivered. Chandler v. Temple, (4 C.) 58 285; See, also, Whitaker v. Salisbury, (15 P.) 32 534. (4.) Conditional delivery: escrow. 73. Where the grantor delivers an instrument as his deed to a third person, to be delivered to the grantee upon a future event, it is then the grantor's deed, and the third person is a trustee for the grantee. Wheelwright «. Wheelwright, 2 447. 74. But if it is so delivered as the writing or escrow of the grantor, to be delivered to the grantee as his deed upon the future event, it takes effect only upon the second delivery; and if, before'that time, the grantee obtains posses- sion of it, the grantor may avoid it on a plea of rum estfactuiti. Wheelwright v. Wheelwright, 2 147. 75. When A executes a deed to B, and places it in the hands of C, to deliver to B on A's death, C holds it as A's agent, and A may re- voke it at any time. Hale v. Joslin, 134 310. 76. But where there is no revocation, and C delivers the deed to B, after A's death, there is a sufficient delivery as against the heirs of A Hatch v. Hatch, 9 307. 77. Where a deed, containing a covenant by the grantor to pay money to the grantee, is delivered absolutely to a third person for the grantee, and the third person keeps it till the grantor's death, and then delivers it to the grantee, the estate vests upon the first delivery, although the third person was not employed by the grantee; -and the consideration is not open to inquiry. Mather 0. Corliss, 103 568; See, also, Foster e. Mansfield, (3 Met.) 44 413. 78. A deed delivered to the grantee as an escrow, takes effect immediately; an escrow requires delivery to a stranger. Fairbanks v. Metcalf, 8 230; Wards. Lewis, (4 P.) 21 518. 79. Where A agrees to take a conveyance of land from B, in trust for C, and the deed is executed, and a memorandum of the trust pre- pared, to be drawn up in form and signed by A, and meanwhile A is permitted to take the deed, and he records it, and refuses to sign the decla- ration of trust, this is a conditional delivery of the deed, and C will be relieved in equity. Wall v. Hickey, 112 171. 80. Where a grantor delivers a deed to a third person, to be delivered to the grantee upon certain conditions, and after performance of the conditions, obtains the deed, declaring that he takes it for the purpose of delivering ft to the grantee, this will warrant a finding that there was a sufficient delivery to pass title. Regan ■o. Howe, 121 424. n. Recording. I See, also, Chattel Mobtgagi II, l»- (1.) Acknowledgment and proof. 81. Where a grantor departs without acknowl- edging his deed, proof before a court of record is equivalent to acknowledgment; but the stat- ute does not apply to a temporary absence. See G. S.. Ch. 89, § 20; P. S., Ch. 120, § 7. In re Sacket, 1 58. 82. Where the grantor and one of the sub- scribing witnesses are dead, and the other testifies before the court that he has no recoUcc- DEED, II, (1), (2). 337 tion of the matter, the court may receive other testimony, and its decision is conclusive. See G B.,OL» > S21;P.S., Ch.l20,§8. Thomas®. Le Baron, (8 Met.) 49 355. 88. A deed of land not acknowledged, can- not legally be recorded, and the recording thereof is of no effect. Pidge v. Tyler, 4 541; Blood v. Blood, (23 P.) 40 80. 84. Under the provincial statute of 1697, title to land might pass by deed, although not acknowledged. Cox v. Edwards, 14 491. See, also, Dudley v. Sumner, 5 438. 85. Acknowledgment and registration are not necessary to pass title, as between the parties, and others having notice. Dole «. Thurlow, (12 Met.) 53 157; Palmer v. Paine, (9 G.) 75 56. See, also, Flucker ®. Hall, cited, 3 581; Marshall®. Fisk, 6 24; Call v. Buttrick, (4 C.) 58 345; Gibbs ®. Swift, (12 C.) 66 393; Wolcott v. "Winchester, (15 G.) 81 461. 86. Where a deed is acknowledged by one of two or more of the parties, it is rightly regis- tered, and then it is constructive notice to all the world as the deed of the others. See G. S., Ch. 89, § 18; P. S., Ch. 120, § 6. Shaw v. Poor, (6 P.) 23 86; Palmer v Paine, (9 G.) 75 56. 87. So where that part of an indenture to lead to the uses of a common recovery, which was executed by the recoveror, was acknowl- edged by him and recorded, it was held to be unnecessary, that the part executed by the recoveree should be also acknowledged and re- corded. Dudley ®. Sumner, 5 438. 88. So it was held, under the former statutes, that where husband and wife join in a deed of the wife's land, his acknowledgment suffices. Dudley ®. Sumner, 5 438; Catlin v. Ware, 9 218; Perkins v. Richardson, (11 A.) 93 538. , 89. Under the former statute, and semble, under the present statute, the mayor of a city in another state is a "magistrate," who may take an acknowldgment, in the absence of any evidence to the contrary. Palmer ®. Stevens, (11 C.) 65 147. 90. Qu., whether an administrator's deed, un- der license from the probate court, needs an acknowledgment. See G. S., Ch. 102, § 10; P. S., Ch. 134, § 11. Pond v. Wetherbee, (4 P.) 21 312. 91. For other rulings as to acknowledgment, under former statutes, incorporated into or ren- dered obsolete by the existing statutes, see: Acknowledgment, etc., of tax collector's deed. Tilson i). Thompson, (10 P.) 27 359. Sheriff's deed of exuity of redemption sold on execution. DeWitt ®. Harvey, (4 G.) 70 486. _ Letter of attorney under which real property is /conveyed. Valentine®. Piper, (22 P., 39 85. American consul is a "magistrate." Scanlan ® "Wright, (13 P.) 30 523. Vol. 1—43 Justice of the peace out of his county. Learned v. Riley, (14 A.) 96 109. Lease expiring more than seven years after its making, though commencing infutwro. Chapman ®. Gray, 15 439. Notary's certificate not required to be under Farnum v. Buffum, (4 C.) 58 260. (2.) Recording : failure to record : effect thereof. 92. Qu., whether an unrecorded deed cannot be used in evidence. Tyler ®. Hammond, (11 P.) 28 193; Burghardt ®. Turner, (12 P.) 29 534; Palmer ®. Paine, (9 G.) 75 56; Wolcott ®. "Winchester, (15 G.) 81 461; Howland v. Crocker, (7 A.) 89 153. 93. A deed recorded since the date of the writ is evidence, if no intervening title is relied on by the adverse party. Howland s. Crocker, (7 A.) 89 153. 94. The rule against using unrecorded deeds does not apply, while the jury may presume a deed to be lost. Valentine v. Piper, (23 P.) 39 85. 95. A deed of wild land, recorded or unre- corded, is not per se evidence of possession or seisin. Bates «. Norcross, (14 P.) 31 224; Estes «. Cook, (22 P.) 39 295; Kellogg ®. Loomis, (16 G.) 82 48. 96. Where a deed describes the land as that conveyed by two other deeds, which were not then recorded, those deeds may be admitted in evidence to identify the land. Robinson v. Brennan, 115 582. 97. The recording of a deed, conveying real and personal property, is not constructive no- tice of the transfer of the personalty. Fitcher ®. Barrows, (17 P.) 34 361. 98. The failure to record a deed cannot be objected to by one, whose only title is from a different grantor. Tyler v. Hammond, (11 P.) 28 193. 99. Parties, deriving title under a recorded deed, are chargeable with notice of its contents. Peck ». Conway, 119 546. 100. The recording is constructive notice only to subsequent purchasers, from or through the same grantor. Bates v. Norcross, (14 P.) 31 224. (A to the rights of an attaching creditor of the grantor before actual record, see Attachment, I, (2); I. (3).l 101. As to the rights of a bona fide purchaser, under a deed fraudulently put upon record. Dana ®. Newhall, 13 498; ante, art. 34. 102. A recorded deed, if taken by the gran- tee without fraud or notice, is good as against a prior unrecorded deed, in favor of the second grantee, and of those deriving title under him, although the latter had notice. Norcross ®. "Widgery, 2 506; Trull ®. Bieelow, 16 406; Boynton v. Rees, (8 P.) 25 329; Glidden v. Hunt, (24 P.) 338 DEED, II, (2), (3); III, (1). 41 221. See dicta, Flynt v. Arnold, (2 Met.) 43 619; overruled, Morse «. Cur- tis, 140 112. 103. The rule extends to a deed from the heir or devisee of the grantor. Earle v. Fiske, 103 491. 104. And if the second grantee had notice, his conveyance, duly recorded, to one who had no notice, takes precedence, as against the un- recorded first deed. Coffin v. Ray, (1 Met.) 42 212. 105. Where the owner of land mortgaged it first to A, and afterwards to B, who had notice of A's mortgage, but recorded his mortgage before A's, an assignee of B's mortgage, with out notice of A's, takes precedence. Morse ». Curtis, 140 112. See, also, Connecticut v. Bradish, 14 296; and dicta in Flynt v. Arnold, (2 Met.) 43 619; overruled in 140 112. 106. If the grantee of a grantee with notice, had also notice, he cannot hold. Adams «. Cuddy, (13 P.) 30 460, 107. For a full discussion of the question of priority, between a prior unrecorded deed, and a subsequent recorded deed, and the grantees under the latter, see Flynt v. Arnold, (2 Met.) 43 619. 108. As to the rights of subsequent grantees, where a prior conveyance, duly recorded, is fraudulent, against creditors, or otherwise, see Green v. Tanner, (8 Met.) 49 411; and other cases cited in Fraud, III, (2). 109. Where the description controls, the sec- ond deed will not take precedence over the first, although first recorded. Adams ». Cuddy, (13 P.) 30 460; cited, post, art. 163. (3.) Notice of unrecorded deed. [For additional cases, arising' upon an attachment before actual recording, see Attachment, I, (8).] 110. Formerly the grantee's implied notice of a prior unrecorded deed, would defeat the sec- ond deed. Fowle v. Richardson, 3 580; Farns- worth v. Childs, 4 637. 111. For rulings as to the circumstances which affected a grantee, with implied notice, see Fowle v. Richardson, 3 580; Farns- worth ». Childs. 4 637; Davis v. Blunt, 6 487; Prescott v. Heard, 10 60; Me- Mechan v. Griffing, (3 P.) 20 149; Ken- dall ». Lawrence, (22 P.) 39 540. 112. Under R. S., Ch. 59, § 28; G. S., Ch. 89, § 3; P. S., Ch. 120, § 4, "actual notice" to the second grantee is required to defeat his deed; and facts sufficient to put a party upon inquiry, or to amount to constructive notice, do not suffice. Parker D.Osgood, (3 A.) 85 487. See, however, Curtis v. Mundy, (3 Met.) 44 405. 113. Thus possession by the grantee is not notice of an unrecorded deed. Pomroy ». Stevens, (11 Met.) 52 244; Mara v Pierce, (9 G.) 75 306; Dooley v. Wolcott, (4 A.) Pierce, 113 72. 86 406; Lamb v. 114. But it may go to the jury, with other facts tending to show actual notice. Sibley *. Leffingwell, (8 A.) 90 584. 115. And continued possession by the grantor is not notice of an unrecorded defeasance of a recorded deed. Newhall v. Pierce, (5 P.) 22 450- Hennessey ». Andrews, (6 C.) 60 170.' 116. Actual notice of an unrecorded guar- dian's deed is not proved by notice of his bond for a license to sell. Dodge v. Nichols, (5 A.) 87 543. 117. The statute requires notice, not only of the sale and purchase, but of the deed. Lamb v. Pierce, 113 72. 118. But where the grantee had actual notice, that the trees growing on the land had been sold to another, and his deed contained a refer- ence to a recorded mortgage by his grantor, which recited such sale, this is actual notice of an unrecorded deed of the trees. White v. Foster, 102 375. 119. For additional rulings as to the facte which constitute actual notice, under the pecu- liar circumstances of each case, see Newcomb ». Presbrey, (8 Met.) 49 406; Lawrence v. Stratton, (6 C.) 60 163. III. Interpretation. [As to conditions in a deed, see Conditiok j (1.) General principles of Interpreta- tion. 120. Where two deeds are executed between the same parties, at the same time, respecting the same subject, the terms of one may be con- sidered in construing the other, if the terms of the latter are ambiguous. Cloyes v. Sweetser, (4 C.) 58 403. See, also, Clap D. Draper, 4 266; King v. King, 7 496. 121. Doubtful words and provisions are to be trken most strongly against the grantor; but they are to be taken according to the natural meaning and effect of the words, used to carry into effect the intent of the parties. Saltonstall «. Long Wharf, (7 C.) 61 195; Simonds v. Wellington, (10 C.) 64 313. 122. But semble, that in public grants, doubt- ful words are to be taken most strongly against the grantee. Comm. v. Roxbury, (9 G.) 75 451, per Shaw, Ch. J., p. 492. 123. But both rules are to be resorted to only where the language is so ambiguous that all other rules f ill; and where words, having an established and definite meaning, are used in a grant, either public or private, that meaning must be carried into effect. Boston®. Richardson, (13 A.) 95 1». 124. Where the grantors and grantees in a deed are described as the heirs of one deceased, and it is manifest from the instrument that W intention was to convey only the interest oi DEED, III, (1), (2). 339 the grantors as such heirs, the deed will not pass an undivided interest of one of the grantors, held under an independent title. lngalls v. Newhall, 139 268. See, also, Maxwell v. Hosmer, 138 207. 125. The courts are bound to effectuate the intention of the parties, if it can be ascertained from the instrument, consistently with the rules of law. Marshall v. Fisk, 6 24; Pray v. Pierce, 7 381; Frost «. Spaulding, (19 P.) 36 445; Trafton v, Hawes, 102 533. 126. This is the only inflexible rule of con- struction. Auburn Cong. Ch. v. Walker, 124 69. 127. If a deed will bear a double construc- tion, and in one sense it can effect its purpose, it will receive the construction which will make it efficacious. Haven v. Adams, (4 A.) 86 80; per Chapman, J., p. 92. 128. In a grant or reservation, to one " or " his heirs, the word ' • or " means ' ' and." "White d. Crawford, lO 183. 129. Declarations of the grantor, or of the survivor, after execution, or conversations be- tween the parties before execution, are not admissible. Dodge v. Nichols, (5 A.) 87 548. 130. But evidence of the practical construc- tion, by the acts of the parties, is admissible, where the language is doubtful. Cambridge ». Lexington, (17 P.) 34 222; Stone v. Clark, (1 Met.) 42 378; Mann v. Dunham, (5 G.) 71 511; Ste- venson v. Erskine, 99 367; Lovejoy ». Lovett, 124 270. See, also, Boun- daby Line, I, (2). I As to the rule that restrictions upon the use, etc., of property conveyed, although styled conditions, will generally be interpreted as implied covenants, see Condition, I, (1).1 131. A restriction in a deed, against erecting a building within a certain distance of the street, or less than a certain height, is not violated by the erection of an inclosure wall. Nowell v. Boston Academy, etc., 130 209. See, also, Condition, I, (1). ..For rules especially applicable to an ambiguous description of the property conveyed, see pott, ill, (5). J (2.) Reference to a plan or other instru- ment, - lAs to the effect of reference to a plan, see, also, Covenant, 111; BotnmABY Line, II, (2).] 132, Where a plan is referred to in a deed as part of the description, the plan and the deed must be construed together, and the effect is as rf all the particulars of the plan were set forth in the deed. Lunt v. Holland, 14 149; Davis e. Kainsford, 17 207; Morgan «. Moore, (3 G.) 69 319; Murdock v. Chapman, (9 G.) 75 156; Walker v. Boynton, 120 349; Boston W. P. Co. v. Boston, 127 374. 133. For a ruling that a reference to a plan, wneron streets were shown, bounding the land conveyed, and also certain private ways, con- nected with the streets, but remote from the land, did not convey an easement in the private ways, see Began o, Boston Gas Light Co.. 137 37. 134. The purpose and effect of a reference to a plan in a deed is a question of the intention of the parties, and it is to be construed accord- ing as such intent appears. Began ■». Boston Gas Light Co., 137 37. See, also, Coolidge v. Dexter, 129 167; Williams v. Boston W. P. Co., 134 406; Attorney-General «. Whitney, 137 450; Perkins « Lawrence, 138 361. 135. An ambiguous or imperfect description in a deed, referring to another deed, wherein the description is sufficient, is cured by the ref- erence. Allen v. Bates, (6 P.) 23 460. 136. But a reference to another deed, for the description of the property, does not limit or qualify the estate granted, or exempt the gran- tor from liability on his covenants. Harlow «. Thomas, (15 P.) 32 66. 137. Such a reference, in the absence of any- other controlling citcumstance, imports that all the property acquired by the deed referred to, and all the grantor's right and title thereto, is conveyed, including easements and prescriptive rights. Pitts v. Farnum, (8 C.) 62 41; Dodge v. Nichols, (5 A.) 87 548; Daniels e. Citizens' Sav. Inst., 127 534. 138. But it does not import, if the language of the deed calls for more land, that only the property described in the deed referred to is conveyed. Melvin v. Locks and Canals, (5 Met.) 46 15; Hastings v. Hastings, llO 280; Auburn Cong. Church v. Walker, 124 69. 139. And where other circumstances show a contrary intent, it does not convey the whole of the property described in the deed referred to. Lovejoy v. Lovett, 124 270. 140. A reference to all the interest of the grantor in land in B., devised by B. K., to the grantor's children, does not pass land in S., thus devised. King v. Little, (1 C.) 55 436. 141. A reference to a trust, includes a refer- ence to the will creating it, although the latter is not otherwise referred to. Cleveland s. Hallett, (6 C.) 60 403. 142. Where proprietors of common and un- divided lands, voted to convey to a parish land, on which a meeting house had been erected, reserving to the town the privilege of holding town meetings there, the deed, containing a reference to the vote, but otherwise not speci- fying the reservation, is subject thereto, and a subsequent purchaser from the parish has notice by the record of the deed. Goff v. Behoboth, (12 Met.) 53 20. L 143. A deed by a person in possession con- veys all the title he has, although it refers to another deed, which is void for uncertainty ot parties. Hall a. Leonard, (1 P.). IS 27. 340 DEED, III, (2), (3). 144 Where land is described by reference to a deed to the grantor, and the circumstances show that it was intended to convey a tract, part of which was conveyed to him by another deed, the entire tract will be deemed to be in- cluded Aldrich v. AldrLh, 135 153. 145 And where land is thus described, and the words " meaning and intending to convey all the land as now fenced," are added, and it appears that a fence then ran across part of the land, conveyed by the deed referred to, at twenty-one feet distant from the line, continued by a gate and shed, so as to run entirely across the lot, but there was no fence on the line itself, the deed was construed as conveying all the land described in the deed referred to. Stowell v. Buswell, 135 340. (3.) The' title or Interest conveyed. [See, also, ante, I, (2) ; Trust, I, (1) ; III.] 146. To create an estate of inheritance by a deed to an individual, the land must be con- veyed to the grantee and his heirs, and these necessary words of limitation cannot be sup- plied by any other words of perpetuity. Curtis ». Gardner, (13 Met.) 54 457; Ashcroft v. Eastern Railroad, 126 196. See, also, Buffum «. Hutchinson, (1 A.) 83 58; Sedgwick v. Laflin, (10 A.) 92 430; Dennis a. Wilson, 107 591. 147. But under G. S., Ch. 90, § 20; P. S., Ch. 121, § 1, a lease for more than 100 years, as long as 50 years remain unexpired, passes an estate in fee simple for most purposes, although it contains no words of inheritance. Hollenbeck v. McDonald, 112 347. 148. At common law, a lease for 999 years Tequires no words of limitation. Hollenbeck v. McDonald, 112 347. See, also, In re Gay, 5 419; Chapman v. Gray, 15 439. 149. Where land was conveyed to a woman, Tmbendum to " heir heirs and assigns forever," it was held, that "heir" was a clerical mistake for '"her," and that she took a fee simple. Huntington ». Lyman, 138 305. 150. A conveyance of half of the grantor's estate to A, and his heirs and assigns, with a proviso that, after the grantor's death, A shall have the other half, vests a fee in one half, and and a life estate in the other half. King v. Barns, (13 P.) 30 34. See, also, Chenery v. Stevens, 97 77. 151. A conveyance to husband and wife, Twbendum to them in the wife's right, her heirs and assigns, to their use and behoof forever, vests a life estate in the husband on the wife's death, and the fee passes to their son. Breed «. Osborne, 113 318. 153. Where a declaration of trust in a deed uses the word "heirs" as words of limitation only, this gives the beneficiary an equitable estate in fee simple. Knowlden v. Leavitt, 121 307. 153. For other rulings as to the extent of the estate, whether for life or in fee, conveyed by particular instruments, interpreted according to Hie intention of the parties, see Lerned ». Saltonstall, 114 407; Hastr ings v. Merriam, li7 345; Woods «. Richardson, 117 276. [See, also, pest, III, (7).] 154. A deed to A, his heirs, and assigns, of all the timber and trees on ceriain land forever with liberty to cut and carry them away, vests an estate of inheritance in the trees and timber then standing and thereafter to grow, for cut- ting which the grantee may maintain trespass quare claumvm against the grantor. Clap v. Draper, 4 266. 155. So of a conveyance of timber, with a proviso that it shall be cut in three years. White v. Foster, 102 375. 156. A deed conveys only that which the grantor had. Litchfield «. Ferguson, 141 97. See, also, Bates v. Norcross, (14 P.) 31 224' Perry v. Weeks, 137 584. 157. A deed, executed by some only of those named as grantors, conveys only the title of those who executed it. Butrick ®. Tilton, 141 93. 158. The deed of A, B, and others, reciting that it is executed by "A in the right of his wife B," but containing general words of con- veyance by all the signers, and including B a& a grantor in the ad testimonvwm clause, convey* B's interest in land owned jointly by her and A. Bent v. Rogers, 137 192. 159. As to an estate tail before the R. S., see i Davis v. Hayden, 9 514; Corbin v. Healy, (30 P.) 37 514; Steel v. Cook, (lMet.) 42 281. 160. An instrument, whereby the grantor "leases" certain land to the grantee, mention- ing no time for its duration, and reserving, "so long as this lease shall continue," the right to certain logs and pipes on the premises, and certain other rights, Iwbendum to the grantee, his heirs and assigns, so long as the grantor shall keep pipes in his land, passes a base fee. Jamaica Pond Aqueduct v. Chandler, (9 A.) 91 159. See, also, Chandlers. Jamaica Pond Aqueduct, 125 544. 161. As to the application of the rule in Shelley's case, before its abolition by the R. S., Bullard v. Goffe, (30 P.) 37 252; Loring v. Eliot, (16 G.) 82 568. 162. Where, a grantor conveys by deed all his right, title, and interest to the estate, real, personal, or mixed, of which A and B died seized or possessed, that conveys all his inter- est in the estate, whether joint or several, of A and B. Litchfield®. Cudworth, (15 P.) 32 23. 163. Where an owner of land in B. conveyeda portion of it by metes and bounds, and after- wards conveyed to a second grantee "all the r.'ght and title to the land I have in B.," and the latter deed was first recorded, the grantee there- under does not take the land conveyed to the first grantee. Adams v. Cuddy, (13 P.) 30 460. 164. For similar rulings in other cases, where the language of the deed purported only to convey the right, title, etc., of the grantor, see DEED, III, (3); (4), (A). 341 Cook »; Farrington, (10 G.) 76 70, Jamaica F. Aqueduct «. Chandler, (9 A ) 91 159. 165. So of an executor's deed, as against ah ■unrecorded deed of the testator. Chaffin e Chaffin, (4 G.) 70 280 166. Covenants of warranty, etc., cannot ex- tend the words of the grant so as to embrace a, greater estate than the grantor had. Hurd«.Cushing,(7P.) 24 169; Allen v. Holton, (20 P.) 37 458. 167. A grant of a way, or of the privilege of a highway, passes an easement only. Jamaica P. Aqueduct e. Chandler, (9 A.) 91 159. 168. And a subsequent grant of the entire property, excepting the way, passes the fee to the soil of the way. Needham t>. Judson, lOl 155. 169. AUter, as to the soil of an open dock, under the peculiar language of a conveyance. Central Wharf ». India Wharf, 123 561. 170. For a ruling that a peculiar conveyance passed only an easeement, see . Derby «. Hall, (3 G.) 68 236. ' 171. A clause in a deed, that it is made sub- ject to the incumbrance of a certain execution, upon a specified portion of the land, which has been set off on execution, excepts the incum- brance of the execution, not the piece of land set off. Shears v. Dusenbury, (13 G.) 79 292. 172. The deed of a tenant in common pur- porting to pass the entire estate, is a good con- veyance of his interest. Benedict «. Morse, (10 Met.) 51 223. 173. So his deed of a certain number of acres in a tract described as undivided, whereof his share would be a greater number of acres, con- veys a proportionate part of his share. Small ». Jenkins, (16 G.) 82 155. 174. But the giantee must take possession Phillips v. Tudor, (10 G.) 76 78. 175. A deed of a certain quantity of land, not described by metes and bounds, being part of a tract owned by the grantor, makes the gaantee a tenant in common with the grantor. Gibbs v. Swift, (12 C.) 66 393; Jewett v. Foster, (14 G.) 80 495; Bat- tel v. Smith, (14 G.) 80 497. 176. Deeds to A and B, each, conveying an undivided half of land and buildings, and pur- porting to give one the lower, and (he other the upper half of the building, create a tenancy in common, and the words referring to the upper and lower portions will be rejected as repug- Presbreyu. Presbrey, (13 A.) 95 281. 177. Where a deed conveys "all those tracts etc., desbribed as follows: "one equal undivided half part of" (certain lots described), being 437 50-100 acres; also lots," etc., (de- s< r" b , m g tnem ). the words "one equal and undi- !™™ Part," refer only to the tract of 437 50-100 acres. Hodges v. Thayer, 110 286. Ian 78 ' Aliter ' upon a sli S ht variation of this Hapgood v. Whitman, 13 464; Child v. Wells, (13 P.) 30 121. 179. For additional rulings, as to the effect of peculiar language in deeds to pass an estate in common or severalty, see Whitman v. Whitman, (7 Met.) 48 268; Cheshire v. Shutesbury, (7 Met.) 48 566; Miller v. Miller, (10 Met.) 51 393. 180. A deed, in trust to permit A and others to use the land during their respective lives, and, on the accomplishment of the trust, to convey to certain children of A, "and such other children of A as shall then be living," gives all the children, including those who are named, only contingent remainders. Smith v. Rice, 130 441. 181. But a deed in trust for the use of A, and after her death "to descend to her chil- dren," gives the children vested remainders. Parker v. Converse, (5 G.) 7 1 336. 182. For additional rulings as to the effect of particular instruments, to pass a vested or con- tingent remainder, see Inches v. Hill, 106 575; Johnson v. Whiton, 118 340. 183. A deed by an heir, of his undivided share in certain land of his ancestor, ' ' except the widow's right of dower," conveys the re- version of the widow's third. Canedy 11. Marcy, (13 G.) 79 373. 184. But an administrator's deed of the resi- due of the land, not set off to the widow as dower, "reference being had to the returns and bounds of the widow's thirds for a more par- ticular description," does not pass the reversion. Kempton v. Swift, (2 Met.) 43 70. 185. So where heirs of F. convey "all the real estate set off to the heirs of F. on the east side of the road," this does not pass the rever- sion of so much of that land as was set off to the widow for her dower. Swift v. Prentice, (11 Met.) 52 464. 186. A guardian's deed of all his ward's share and interest in certain land passes the reversion as well as the possession. Sowle v. Sowle, (10 P.) 27 376. 187. For a ruling that under a particular deed, only an undivided half of the land passed, see Maxwell ®. Hosmer, 138 207. 188. Where a man and his wife join in a deed conveying land generally, and the deed further contains a clause, to the effect that the wife re- leases her homestead and dower interest, it is not merely a conveyance of the husband's inter- est, with a release accordingly by the wife, but it conveys also her separate interest. Smith v. Carmody, 137 126. (4.) Rulings relating to grants and re- servations of water rights. [See, also, Mill and Mill Dam; Town, VI, (4); Water Course.] (A.) Aqueduct. 189. A grant of a right to open land, for the purpose of laying pipes for water, and to keep such pipes therein forever, does not grant a 342 DEED, in, (4), (A), (B). Tight to change the location of the pipes when once laid, Jennison v. "Walker, (11 G.) 77 423; Chandler «. Jamaica P. Aqueduct, 125 544. See, also, Jones v. Percival, (5 P.) 22 485; Bannon v. Angier, (2 A.) 84 128. 190. "Where A conveyed land to B, on con- dition that B and his heirs should permit C and his heirs to possess the land during the grantor's life, and should not divert the water from a spring, so as to injure C's land, with a right to enter and lay pipes, etc., and the water was ac- cordingly used hy C and his assigns for thirty five years, this gives C and his assigns the right to enter after A's death and lay the pipes. Goddardo. Dakin, (10 Met.) 51 94. 191. And a deed from B, or those claiming under him, subject to C's right, precludes the grantee from questioning such right. Goddard ®. Dakin, (10 Met.) 51 94. 192. For a ruling, that the peculiar language of a deed was a grant of the entire water of a spring, see Stanwood v. Kimball, (13 Met.) 54= 526. 193. A grant of land, with a right to lay a pipe across other land of the grantor, to take water from an aqueduct, does not authorize the grantee or his assigns to take the water from a point above the grantor's land, even with the owner's consent. Curtis t>. Noonan, (10 A.) 92 406. 194. An indenture between A and B, whereby A grants to B and his heirs " the whole use " of certain springs on A's land, with the right of laying an aqueduct and entering, etc., for con- struction and repairs; and B covenants to de- liver water to A as specified, and that if, for any reason, the water should not be delivered for a year, the indenture should be void, B having the right to enter and take up the pipes, gives B no interest in the soil, but only an easement, which expires by B ceasing for a year to deliver the water, and taking up the pipes. Owen v. Field, 102 90. 195. As to the right, after the termination of the easement, of a grantee, under a deed reserv- ing the right of laying down other pipes, see Owen v. Field, 102 90. 196. A grantor may reserve an assignable right of taking water from a spring on the land, and to enter for construction and repairs, al- though it is not annexed to any particular es- tate, or limited as to the place and manner of enjoyment Goodrich v. Burbank, (12 A.) 94 459. 197. "Water rights, granted by deed, not ap- purtenant to a particular parcel of land, may be used by the owner at any place or in any manner, so that he does not interfere with another's right. DeWitt v. Harvey, (4 G.) 70 486; Goodrich «. Burbank, (12 A.) 94 459. 198. The reservation of a right of free access to a well, to take and use the water, gives the right to take the water bv a pump as well as bv a pipe. j r *■ j French ».Morris, 101 68. See, also, Austins. Cox, 118 58. 193. A right to take so much water as will run in a pipe of a certain calibre on a certain level, laid to a point at a certain distance, is not exceeded by drawing the water in a pipe of a larger calibre, and laid at a shorter distance and at a different level, if so restricted by smaller pipes that the whole discharge will not exceed that of such a pipe as is described. Goodrich ®. Burbank, (12 A.) 94 ' 459. Goodrich v. Burbank, 97 22. 200. For other rulings as to the interest and rights, which pass under the peculiar language of particular grants and reservations of a right to take water, see Goodrich v. Burbank, (12 A.) 94 459- Goodrich v. Burbank, 97 22; Philbrick c. Ewing, 97 133; Cheney e. Pease, 99 448; Hankey v. Clark, 110 362; Hollenbeck v. McDonald, 112 247; Amidon v. Harris, 113 59; Wright ».' Newton, 130 552. (B.) Water power. 201. The grant of a mill carries, by implica- tion, the right to use the water-course and the race way, to the extent of the grantor's lights. Richardson «. Bigelow, (15 G.) 81 154. 202. "Where a grant conveys one of two mills, which comprise the entire mill privilege of a stream, it passes a proportionate part of the whole right in the stream. Crittenden v. Field, (8 G.) 74 621. 203. A deed of a mill-rsite, by metes and bounds, does not pass a right to the use of a reservoir dam above, owned by the grantor, al- though the stream is so small that the use thereof is beneficial. Brace «. Tale, (4 A.) 86 893. 204. "Where the owner of an upper and a lower mill privilege conveyed the former, re- serving, for the benefit of the lower, all the water drawn through the waste-gate, when the water ran over the dam, the reservation is gen- eral, without reference to the subsequent mode of using the lower privilege. Atlanta Mills v. Mason, 120 244. 205. A grant of a mill, with "the first privi- lege of water necessary for running the same as a good grist mill," purports to grant as much water as is necessary for that purpose, not merely such as is not subject to other rights. Hapgood v. Brown, 102 451. 206. Where the owner of a saw mill and of a grist mill, opposite each other on a stream, con- veys the saw-mill, " together with the stream from said mill half-way to the grist-mill;" he re- serves only an equal right to the water privil- ege, although, for sixty years, he and his an- cestors, as the grantee knew, had used water for the saw-mill, only so far as it did not inter- fere with the grist mill. Hapgood v. Brown, 102 451. 207. As to the construction and effect of deeds between tenants in common of a water power, and a conveyance by one of them to a stranger. De "Witt v. Harvey, (4 G.) 70 486. 208. Where a lot, part of a_ tract of land upon a stream, was conveyed with a restricted DEED, HI, (4), (B), (C), (D). 343 right to use the water, and afterwards the same grantors conveyed to the same grantee a larger lot by boundaries including the first lot, and reciting that the former lot was conveyed for a water privilege "which is not conveyed or sold in this deed," the second conveyance does not enlarge the grantee's water privilege. Cowdrey v. Colburn, (7 A.) 89 9. 209. For a case where the same conclusion was reached, under the peculiar language of a voluminous deed, see Hurd v. Curtis, (7 Met.) 48 94. 210. The right to use water, under a grant of a water privilege, is not inseparably annexed to the building, or for the purpose specified in the grant, if the language of the grant will admit of such a construction. Hurd v. Curtis, (7 Met.) 48 94. 211. Where a mill is conveyed with a water privilege, and the deed refers to the deed to the grantor for a specification of the privilege, the grantee takes only so much as is therein speci- fied, although the grantor is then using more. Perry «. Binney, 103 156. 212. A deed of a mill privilege, and the right of conducting water " through any gates be- tween the slitting mill and the forge dam," does not include the right to conduct water through the forge dam, and cannot he thus enlarged by oral testimony. Revere v. Leonard, 1 90. 213. A deed of a mill, with so much of the water as is sufficient for its use, "whenever there is a sufficiency therefor," contains a good reservation of the surplus water, and not a clause void for repugnancy. Sprague v. Snow, (4 P.) 21 54. 214. A grant, by the owner of two dams on a stream, of the lower dam, and a privilege to draw water sufficient for certain specified pur- poses, limits the quantity of water to be used, and not the use to which it is to be applied. Tourtellot «). Phelps, (4 G.) 70 370. 215. The owner of land, entitled to share in the water power belonging to an upper privil- ege, cannot affect the rights of other owners in that privilege, by a grant to an owner of a lower privilege. Atlanta Mills v. Mason, 120 244. 216. For additional rulings as to the right to water power, which is reserved or passes under the peculiar language of particular convey- ances, see Ashleys.Pease,(18P.) 35 268; Riley «. Parks, (11 Met.) 52 424; Judd v. Wells, (12 Met.) 53 504; Tourtellot v. Phelps, (4 G.) 70 370; De Witt v. Har- vey, (4 G.) 70 486; Pratt v. Lamson, (2 A.) 84 275; Cowdrey v. Colburn, (7 A.) 89 9; Bean?). Colt, 99 480; At- lanta Mills ». Mason, 120 244;Agawam Canal Co. ». Southworth M. Co., 121 (C.) Dam. 217. A grant by a town of a mill privilege, gives the grantee the right to erect a dam to raise water sufficient to run the mill. Stoughton v. Baker, 4 528. 218. Where a riparian proprietor grants the right to abut a mill dam on his shore, the grantee has a right to all the water power created by the dam, and the grantor has no right to use the water which runs over the dam. Bliss v. Rice, (17 P) 34 23. 219. Where the right was granted to erect a dam across a stream, from the grantor's land to the grantee's, at about the distance of 60 rods below the grantor's mill, and it was built more than 80 rods below, and afterwards removed 20 rods higher up, the grantor making no objec- tion, the removal was presumed to be within the parties' intent. Boynton «. Rees, (8 P.) 25 329. 220. A grant of land with a mill privilege, and "the privilege of a dam " (describing it), is the grant of a right to build a dam for a mill privilege, and, if necessary, to extend it over the remainder of the grantor's land. Dryden v. Jepherson, (18 P.) 35 385. 221. Where the owner of two mills on the same stream, conveyed the lower mill, with the right "to make and maintain a dam to accommodate the said mill," of a certain height, and the grantee repaired the old dam, and afterwards, retaining the old dam, built another dam of the same height, the effect of which was to injure the upper mill, held, that the erection of the new dam was unauthorized. Baker o. Sanderson, (3 P.) 20 348. 222. A deed from all the heirs of A, of "all the right, title, and interest of each of us," in and to certain lands, described by metes and bounds, "hereby quit-claiming all our right, etc., In and to all the real estate, situated, etc., owned by A at the time of his decease," with covenants against incumbrances and of war- ranty, does not pass a right to maintain a dam and reservoir on the land granted, for the benefit a mill on other land, acquired by one of the of grantors by a prior and independent title. Kendall «. Brown, (7 G.) 73 210. 228. A grant of a mill privilege, " commenc- ing at a certain permanent rock, on which the upper dam now stands, thence running on said brook to the dam occupied for supplying water to the grist mill," with the right of erecting buildings on the grantor's adjacent land, reserv- ing the right of taking water from the upper dam and the land on the brook 100 feet below the permanent rock, conveys no right to raise the water above the permanent rock, or to erect a dam within 100 feet of the upper dam. Crittenden «. Field, (8 G.) 74 621. 224. For other rulings, as to the lights to erect or maintain dams, granted or reserved by particular conveyances, see Cary ». Daniels, (8 Met.) 49 466 Dickerson v. Mixter, (13 Met.) 54 217 Goodrich v. Longley, (1 G.) 67 615 Goodrich v. Longley, (4 G.) 70 379 Phelps v. Tourtellot, (9 G.) 75 102 Prentiss a. Wood, 118 589;Coogan« Burling Mills, 124 390. (D.) Flowage. 225. A grant of land, bounded on or near a stream, reserving the mill and water privilege, 344 DEED, III, (4), (D), (E); (5). is a reservation of the right of flowing the land, as far as necessary or convenient, or as far as it has been usual to flow it. Pettee v. Hawes, (13 P.) 30 323. 226. And a grant of a water privilege, and "all the land that the dam flows," passes all the land flowed when the dam is used for the purpose for which it was erected, although, at the time of the grant, it is net in use and is out of repair, and flows a smaller extent of land. Morse v. Mar. hall, (11 A.) 93 229; Morse v. Marshall, (13 A.) 95 288. 227. A deed of "a certain water privilege and lot of land, situate in E. ," and ' ' having two dams," and ' ' also all the lands which said dams will flow," passes title to lands flowed by the dams, although not situate in E. Merritt v. Morse, 108 270. 228. A grant to a mill owner, of a right to flow land by means of a dam, to any extent to which the grantee may raise the water "with- out interfering with the present legal rights" of the owaers of a mill above, gives the right to flow only so far as that could be done, at the time of the grant, without impeding in any degree the works of the upper mill. Knapp v, Douglas Axe Co., (13 A.) 95 1. 229. "Where tenants in common convey, hy separate deeds, a mill and water, privilege, together with all the right, etc., which each has to flow the lands of himself and his co-tenants, this grants an unlimited right to flow the lands referred to, although the right of the tenants in common to flow was limited by mutual licenses, and was exercised to a less extent. Howard v. Bates, (8 Met.) 49 484 230. A grant of a right to make a ditch, to take water from a stream to the grantee's factory, and to construct a dam for that pur- pose, gives the grantee no right to flow the grantor's land without payment of damages. Estes v. Wells, (9 C.) 63 487. 231. See, further, as to rights of flowage, under particular conveyances. Ballard v. Ballard Vale Co. , (5 G.) 71 468; Phelps «. Tourtellot, (9 G.) 75 102; Jackson v. Harrington, (2 A.) 84 242; Brady ». Blackinton, 113 238. (E.) Miscellaneous. 232. Where a deed of land, bounded on all sides hy lands of persons named, excepts " the mills and water privileges owned" by the grantor, this does not except a portion of the mill yard used as a garden, and occupied by buildings not connected with the. mills. Forbush i). Lombard, (13 Met.) 54 109. 233. A grant of a mill, "also the mill yard, and all other appurtenances and privileges," etc. , " with the right of digging, damming, and flowing, for the accommodation of said mill," gives the grantee no right to erect a trough on the grantor' s adjoining land, where no trough ever existed, and the place was never flowed by the mill dam. Miller v. Bristol, (12 P.) 29 550. 234. A deed of a mill and mill dam, with all rights, etc.. thereto pertaining, "including a lot of land lying on the north side of the river and bounded on the west by the highway," does not convey any land west of the highway, or a right to deposit logs within the highway; and it cannot be shown to have that effect, hy proof that the owner of the mill has been accustomed so to deposit logs for the last 20 years. Morton v. Moore, (15 6.) 81 573 235. For a ruling upon the question -whether a voluminous deed, referring to other deeds, in. eluded a mill privilege, see Coogan». Burling Mills, 124 390. 236. For rulings upon the rights and liabili- ties of the grantees, in two simultaneous deeds of two different mills, each referring to a plan, on which was marked out a way, leading to one of the mills, and a canal crossmg it, leading to the other, see Richardson u. Bigelow, (15 G.) 81 154 (5.) Description of the property, 237. General words in a description of the property conveyed by a deed, are not restrained by restrictive words, added for greater caution, nor hy affirmative words, more restrictive, which have no tendency to make the general descrip- tion ambiguous. Bott v. Burnell, 1 1 163. 238. Nor does the addition of insufficient or repugnant matter, hurt a description that is sufficient without it. Riley v. Smith, (9 A.) 91 370; Cutler v. Tufts, (3 P.) 20 272. 239. In a deed of land by metes and bounds, the addition of the words " and all the build- ings thereon,", does not affect the description. Crosby «. Parker, 4 110. 240. Where all the particulars in a descrip- tion are necessary to ascertain the property, no property passes which does not agree to all the particulars. Worthingtdn v. Hylyer, 4 196. 241. But if the description is sufficient to as- certain the property intended to he conveyed, it will pass, although it does not agree with Eome of the particulars. Worthington v. Hylyer, 4 196; Bos- worth v. Sturtevant, (2 C.) 56 392. 242. Words of general description are con- trolled by words of particular description. Smith v. Strong, (14 P.) 31 128. 243. Where B, a devisee of A. and D, a devi- see of C, jointly executed a deed, conveying "all the estate left or given us by A," and also a piece of land "pare of the estate of C," the deed includes all the land devised or conveyed by A to B. Hoxie v. Lawrence, 117 111- 244. Where a description is given, which has not acquired a fixed legal construction, or a variable boundary is given, oral evidence isi ad- missible to ascertain the meaning and construc- tion. „«. Waterman v. Johnson, (13 P.) 30 #i- l As to evidence of practical construction by the acts of the parties, see ante, art. 130 1 245. A deed, conveying " a certain parcel of land, situate in A., being my homestead, con- taining 200 acres, being the same estate now DEED, III, (5), (6). 345 occupied by me," does not pass lots in the oc- cupation of tenants at will, although they con- stitute a part of 200 acres in A., owned by the grantor; and oral evidence is inadmissible to include them. Warren v. Cogswell, (10 G.) 76 76. 246. A deed, conveying all the lands belong- ing to the Commonwealth, " between the old west line of S., and the east line of M. W.," those being adjoining towns, is not void for un- certainty of description. Ward v. Bartholomew, (6 P.) 23 409. 247. A collector's deed of land sold for taxes, which bounds the land on one side by land on which it is bounded only in part, and on another by land which is separated from it by other land, is void for uncertainty of de- scription. Hill v. Mowry, (6 G.) 72 551. 248. In a case where a barn stood partly on the land described, and partly upon land which, it was contended, was included, but the court ruled it was excluded, it was held, that so much of the barn as was upon that lot did not pass, and that oral testimony was inadmissible to show that the lot in question was intended to be included. Adams v. Marshall, 138 228. 249. Generally, the grant of a house, or the foundation of an unfinished house, gives a freehold on the land under it. Bacon v. Bowdoin, (22 P.) 39 401; Bacon v. Bowdoin, (2 Met.) 43 591; Greenwood v. Murdock, (9 G.) 75 20. 250. If the grant is of a cider house and cider mill, and to endure only as long as the cider house stands, it gives a freehold in the land while the building stands, although its use as a cider house has ceased. Esty ». Currier, 98 500. 251. And land occupied and improved by buildings, or other structures designed for a particular purpose, which comprehends its beneficial use and enjoyment, will pass by words which describe that purpose. Johnson v. Eayner, (6 G.) 72 107. 252. A deed of a house and land, and also of a well of _ water upon other land of the grantor, with a right to enter, etc., reserving the use of the well and water to the grantor, passes a fee to the land occupied by the well. Johnson v. Eayner, (6 G.) 72 107. 253. A description bounding land upon a house, conveys the land only to the edge of the eaves. Millett v. Fowle, (8 C.) 62 150; Car- brey ». Willis, (7 A.) 89 364; Sherman s.Williams, 113 481. [See, also, Adverse Possession, art. 31.1 254. A deed, conveying " the academy, with tne tence around said building," conveys also the land about the building, and used in connec- tion with it. Snow v. Orleans, 126 453. See, also, Miller v. Miller, (15 P.) 32 57; Bacon v. Bowdoin, (22 P.) 39 401; For- bush v, Lombard, (13 Met.) 54 109. 255. For a ruling that a guardian's deed did not convey the undivided interest of the ward in too reversion of the dower estate, see Kimball v. Withington, 141 376. Vol. I— 44 256. A quit-claim deed, conveying " a certain right of land lying in the town formerly called B.," and "also all the right we may have in any estate, real or personal, belonging to the estate of J., late of H., deceased," passes all the grantor's rights in land in H., which be- longed to J. Butrick s. Tilton, 141 93. .For many other cases, relating to the description of property in a deed, and what property passes thereby, see Boundary Line; Covenant, III. As to the effect of a reference to another instru- ment, see ante. Ill, (2). See, also, Highway, and post,tZI,(6); in,(7).l (6.) Appurtenances and incidents. 257. Land cannot pass as appurtenant to land. Doane v. Broad St. Assoc'n, 6 332. 258. But a conveyance of a wharf will pass the flats necessary for the use of it. Doane «. Broad St. Assoc'n, 6 332; Ashby v. Eastern Railroad, (5 Met.) 46 368. [See, also, ante, xll, ;6).l 259. For a peculiar case, where it was held, that certain certificates of shares in a corpora- tion formed by the proprietors of flats, passed by a deed of the flats and a wharf thereupon, see Hopkins v. Smith, 111 176. 260. A deed of a lot of land, with the wharf thereupon, referring to another deed and to a statute, which authorized the grantor to extend his wharf to the harbor commissioners' line, will not pass a pier-wharf, extending to that line, and outside of the metes and bounds, used in connection with another wharf; and oral evidence is inadmissible for the purpose of in- cluding it. Wood «. Bridge Com'rs, 122 394. 261. A separate small parcel of land, not under a dwelling house, nor so connected with it, as to raise an implication that it passes by a deed of the dwelling house and appurtenances, will not pass by such a deed, although the de- scription is ambiguous, and upon one construc- tion might include it. Stone v. Stone, 116 279. 262. But such a parcel will pass by such deed, if habitually used with the dwelling house, and reasonably necessary to be held in connection with it. Ammidown v. Ball, (8 A.) 90 293. 263. The same rule applied to a parcel of land in the rear of a store. Ammidown v. Granite Bank, (8 A.) 90 285. 264. A conveyance of a lot, bounded south on a passage-way, and referring to a deed to the grantor, which passed the beach between the passage-way and the sea, passes also the beach. P g Coo£ v. Farrington, (10 G.) 76 70. 265. A division fence generally passes as an appurtenance, although it varies somewhat from the true line; but where a deed bounds the land by a straight line, running between two monu- ments, and reserves the fence, and the grantor afterwards sells the other part of the land to another, bounding the land by the same straight line, the second grantee acquires no title to the 346 DEED, III, (7)— DEFAMATION. fence, which stands on the land of the first grantee. Ropps v. Barker, (4 P.) 21 239. 366. A grant by « town of part of its com- mon land for a meeting-house, passes so much of the land, outside of a railing around the meeting-house, as is necessary for the parishion- ers to tie their horses upon on the Lor t's day. Woburn Parish v. Middlesex, (7 G.) 73 ' 106. See, also, Lakin B.Ames, (10 0.) 64 198. [ A s to water rights and privileges, see ante, in, (4.)] (7.) Exceptions, restrictions, and reser- vations. [As to whether certain restrictions, as to the use, etc. , of the property, in a deed, constitute conditions, and the effect thereof, see Condition, I, (1).] 267. The operation of an exception in a deed, is to retain in the grantor some portion of his former estate, which, by the exception, is taken out of the grant; and whatever is thus excluded, remains in him as of his former right and title. A reservation or implied grant vests in the grantor some new right or interest, not before existing in him. It is equivalent to reconvey- ance by the grantee. Ashcroft v. Eastern Railroad, 126 196; Stockwell v. Couillard, 129 231; Perkins v. Stockwell, 131 529. See, also, Cutler v. Tufts, (3 P.) 20 272; Stockbridge Iron Co. v. Hudson Iron Co., 107 290; per Wells, J., p. 321. 268. So a clause in a deed, reserving to the grantor "the right of passing and repassing and repairing my aqueduct logs forever," is a reservation, and not an exception, and vests in the grantor an estate for life only. Ashcroft ®. Eastern Railroad, 126 196. 269. So a deed to a corporation of land con- taining ore, reserving to the grantor " the right of mining on the granted premises, for the use of the company," contains a reservation, which saves him no title to the land, or the ore before separation, but is merely a license, and not within the statute of frauds. Stockbridge Iron Co. «. Hudson Iron Co., 107 290. 270. The owner of property may make a voluntary conveyance thereof to trustees, re- serving for himself an equitable life estate, with provisions for distribution on his death. Perry «. Cross, 132 454. 271. The words "reserving" and "except- ing" are often used indiscriminately; and whether a particular provision is an exception or a reservation does not depend upon the word used, but the nature and effect of the provision. Stockwell «. Couillard, 129 231. See, also, Gale v. Coburn, (18 P.) 35 397; Hurd v. Curtis, (7 Met.) 48 94; Perkins v. Stockwell, 131 529. 272. Every exception is inconsistent with the grant, but it is not void, unless it is so incon- sistent that it is repugnant, and makes the grant practically inoperative. Stockwell r. Couillard, 129 231. 273. A stipulation in a deed, that it shall be void, if the grantee fails to support the grantor is a condition, not a reservation. Slater i>. Dudley, (18 P.) 35 378. [See Condition, I, (1).] 274. An exception of part of the land con- veyed, or of the rights of a person therein, or of land heretofore conveyed by the grantor or the like, is a valid exception, and qualifies the covenants in the deed. Sprague v. Snow, (4 P.) 21 54;Pettee v. Hawes, (13 P.) 30 323; Allen v Holton,(20P.) 37 458; Sweet s.Brown (12 Met.) 53 175; Forbush v. Lombard' (13 Met.) 54 109; Wooley®. Groton (2 C.) 56 305; Cook v. Farrington, (10 G ) 76 70; Canedy v. Marcy, (13 G.) 79 373; Stockwell v. Couillard, 129 231' Kimball «. Withington, 141 376. ' 275. The same rules of construction apply to a reservation or implied grant, as to an express grant, with respect to the nature and extent of the title or estate conveyed, the description of the property, the appurtenances, and otherwise. Curtis -o. Gardner, (13 Met.) 54 457; Wooley v. Groton, (2 C.) 56 305; Jamaica P. Aqueduct i>. Chandler, (9 A.) 91 159; Esty v. Currier, 98 500; Webster v. Potter, 105 414; Ashcroft v. Eastern Railroad, 126 196; Beann. French, 140 229. 276. Thus a clause in a deed, "reserving, however, to myself the privilege of a bridle road in front of the house," reserves to the grantor only a life estate in the easement. Bean v. French, 140 229. 277. A reservation of the buildings on land sold, with a proviso that they shall be removed by the grantor within a specified time, is valid. Washington, etc., Man. Co. v. Wey- mouth, etc., Ins. Co., 135 503. 278. A reservation of trees to the grantor and his heirs forever, reserves an estate of inherit- ance, but only in the trees then growing, with a right in the soil for their growth and nourish- ment, and the privilege of entering to take them away. Putnam v. Tuttle, (10 G.) 76 48. 279. As to a reservation of trees, etc., with a limitation as to the time when they are to be taken away. Reed ®. Merrifield, (10 Met.) 51 155; White v. Foster, 102 375; Perkins t. Stockwell, 131 529. 280. For other illustrations of reservations, and the construction and effect thereof, see Farnum v. Piatt, (8 P.) 25 339; Allen «. Scott, (21 P.) 38 25; Curtis v. Gard- ner, (13 Met.) 54 457; Munn v. Stone, (4 C.) 58 146; Jamaica Aqueduct ft Chandler, (9 A.) 91 159; Shannons. Pratt, 131 434; Bangs v. Potter, 135 245; Howard v. Pepper, 136 28. [See, also, Easement, IT, (4).] Defamation. [See Libel and Slander.] DEFAULT— DEPOSITION, I, (1). 347 Default. [Sec Judgment, II, (1).] Defeasance. [See MORTGAGE, I, (2).] Defence. [See Pleading, IV ; Trial.] Defrauding. [See Cheat; Conspiracy; False Pretences; Fraud.] LSee, Contract, T, g); Deed, I, (3); Gift; Sale, II, (3); Savings Bank, II; Statute of Frauds, III, Delivery. LSe (3);S (2)-] Demand. [See Notice and Demand.] Demurrage. [See Shipping, HL] Demurrer. (Pleading.) [See Equity Pleading, etc., I, (3) ; Indictment, VI, a) ; Pleading. VI.] Demurrer to evidence. 1. A demurrer to evidence must be in writing with a joinder by the adverse party. Golden v. Knowles, 120 336. 2. It admits all the facts which the evidence of the plaintiff tends in any degree to prove; and if it is overruled, the plaintiff is entitled to judgment. Copeland v. N. E. Ins. Co., (22 P.) 39 135; Golden®. Knowles, 120 336. 3. The party demurring cannot avail himself of facts, which the evidence tends to show in his favor. Copeland v. New England Ins. Co., (22 P.) 39 135. 4. Where the evidence is circumstantial or uncertain, a general demurrer will not suffice; t ■ r? part ? Qem urring must state the facts, which it tends to prove m favor of the adverse party, and which he admits. Copeland v. New England Ins. Co., (22 P) 39 135. , 5. The adverse party may be compelled to join when the demurrer is properly presented; out he should be careful to see that it contains tae proper admissions, before he joins in it. If not, he should pray judgment whether it shall be admitted. Copeland v. New England Ins. Co., (22 P.) 39 135. 6. Where the demurrer is improperly ten- dered and joined, the court will award a new trial. Copeland v. New England Ins. Co., (22 P.) 39 135. Deodand. 1. The law of deodand was in force in Ply- mouth colony. In re England, 1 Plym. Col. Rec. 157. 2. But in modern times it has not been in force. In re Blackburn, 1 Dane Ab. 147. Dependent and independent stipu- lations. [See Contract, IV, (4).] Deposit. [See Bailment ; Savings Bank, 11.1 Deposition. I. General Rules; Depositions taken eebe. (1.) When admissible; notice; interrogatories. (2.) Taking; certifying; returning. II. Depositions taken elsewhere by an Officer. III. Depositions taken upon a Commission. IV. Depositions in perpetual Remem- I. General Rules : HEIu3j. Depositions taken (1.) When admissible; notice; Interro- gatories. 1. A deposition taken in term time within the Commonwealth, and out of the town wherein the court is held, without a special order, is in violation of rule 9 of the superior court, and inadmissible. Fuller «. Damon, 135 586. 2. A deposition is admissible, although the declaration has been amended since it was taken. Weatherby v. Brown, 106 338. 3. A party may take a second deposition of the same witness. Akers v. Demond, 103 318. 4. The deposition of a wife may be taken in a creditor's bill against her and her husband, although process has been served upon her only. Crompton v. Anthony, (13 A.) 95 33. 348 DEPOSITION, I, (1). 5. A deposition taken to be used in a United States court, in a cause of which that court had no jurisdiction, is inadmissible in an action in the State court, for the same cause and between the same parties. Cunninghams. Hall, (4 A.) 86 268. 6. A party cannot use his own deposition, taken by the adverse party, in a suit between the latter and a third person. Hovey v. Hovey, 9 216. 7. A deposition, in which a party has em- bodied, by way of interrogatory, a copy of a deposition of the same witness, taken, but not used, by the adverse party, is not admissible. Dana ». Underwood, (19 P.) 36 99 8. Where a party takes a deposition upon interrogatories, part of which is intended only to meet testimony expected frem the adverse party,' he must accompany his interrogatories with a written notice of his purpose, or the ad- verse party may require the whole to be read, although he has not produced the expected tes- timony. Linfleld t>. Old Colony Eailroad, (10 C.) 64 562. 9. So if a party has put a cross interrogatory, relating to a matter inquired of in a direct in- terrogatory, the answer to which has been ruled. out, he must give notice that the cross interrog- atory was offered de bene esse,- or he cannot ob- ject to the reading of the answer. Sherman v. Rawson, 102 395. 10. Where the testimony is complete, the depo- sition will not be rejected, because the cross examination was unfinished in consequence of the witness's sickness or death. Fuller ». Eice, (4 G.) 70 343. 11. Nor will it be rejected for the witness's omission to answer an impertinent cross inter- rogatory. Akers v. Demond, 103 318. 12. Nor where, although the witness's answer to an interrogatory is incomplete, there is no reason to suppose it to have been intentionally imperfect or evasive. Stratford «. Ames, (8 A.) 90 577. 13. But if the witness is manifestly favorable to one party, and declines answering fully or properly a pertinent and material question, the deposition will be rejected, if the party who took it was notified in season to take it anew. Robinson ■». Boston & W. Railroad, (7 A.) 89 393. See, also, Savage v. Birck- head, (20 P.) 37 167. 14. It is no objection that the bill of items, annexed to the deposition, is in the handwriting of the party's attorney, or described in the depo- sition as marked A, and not so marked, there being no other. Marvin v. Raigan, (12 C.) 66 132. 15. If an answer is offered as a whole, and part is incompetent, the whole is inadmissible. Townsend v. Pepperell, 99 40. 16. Where a deposition, with a paper annexed, is objected to generally, and the objection is overruled, and the deposition and paper read without further objection, a specific objection to the paper cannot be raised upon exceptions. Waters v. Gilbert, (2 C.) 56 27. 17. So where an interrogatory calls for » memorandum book, and it is annexed, the partv cannot first object to it at the trial. J Boston, etc., I. Works «, Montague, loo ol9. 18. Letters annexed to a deposition are not thereby made competent evidence, if otherwise incompetent, and not inspected by the partv Ashley v. Wolcott, (3 G.) 69 571. 19. The answer to a deposition, though ap- pearing to be the expression of an opinion wffi not be rejected for that reason, if, in connection with other answers, it appears to be the state- ment of a fact. Robinson v. Litchfield, 112 28. 20. If the case is one where an expression of an opinion is competent, the party cannot object that a foundation was not laid for it, as he should have questioned the witness thereupon Moody ». Rowell, (17 P.) 34 490. 21. For a ruling that certain answers, not called for by the interrogatories, were inadmis- sible, see Morrison v. Chapin, 97 72. 22. Where depositions are taken at two differ- ent places, at such times that the adverse party or his attorney cannot attend both, the court may suppress the depositions of those witnesses, whom the adverse party has not had reasonable opportunity to cross examine, although the statutory notice was given. Cole v. Hall, 131 88. 23. Notice of taking a deposition is insuffi- cient unless it names the witnesses. Minot v. Bridgewater, 15 492. 24. Where a deposition is taken by order during the session of the eourt, notiee, served at 11 o'clock a. M. for 4 o'clock P. m. of the same day, was deemed sufficient under the circum- stances of the case. Vinal v. Burrill, (16 P.) 33 401. 25. The return of an officer which fails to state the hour, where the notice was served the day before, is insufficient, and the insufficiency is not waived by attendance and cross examina- tion under pretest. Hunt v. Lowell G. L. Co., (1 A.) 83 343. 26. Where counsel reading a deposition omits to read a memorandum of objections, and the adverse party specifies the omission only at the close, it suffices if the judge offers to hear him then. Valentine v. Middlesex R. R., 137 28. 27. An objection that an interrogatory is leading, or for other matter of form, cannot he first taken where the deposition is offered at the trial. _ Akers v. Demond, 103 318. See, also, Potter v. Leeds, (1 P.) 18 309; Allen v. Babcock, (15 P.) 32 56; Potter v. Tyler, (2 Met.) 43 58; Stiles «. Western R.R., (11 Met.) 52 376; Adams v. Wadleigh, (10 G.) 76 360. 28. An objection on the ground of incom- petency of the witness may be first taken at tne Talbot v. Clark, (8 P.) 25 51; Whit- ney v. Heywood, (6 C.) 60 82. DEPOSITION, I, (1), (2). 349 29. An objection to the admission of part of a deposition, that the form of an interrogatory does not give notice of the substance of the answer, so as to permit cross examination, can- not be taken on the argument of exceptions, if the entire deposition is not before the court. Kershaw ». Wright, 115 361. 30. A party, who does not introduce a deposi- tion taken by him, cannot testify as to any of its contents. Hanson v. Carlton, (6 A.) 88 276. 31. For rulings under the former statutes, now obsolete, or incorporated into the existing statutes, see Objection to competency of interrogatories. Heywood «. Reed, (4 G.) 70 574. Notice to attorney of record sufficient. Smith v. Bowditch, (7 P.) 24 137. Commission in probate cause under St. 1783 and St. 1785. . Amory v. Fellowes, 5 219. Deposition in writ of review under St. 1786. Gold D.Eddy, 1 1. Interested witness. Sabine v. Strong, (6 Met.) 47 270 Deposition in term time without order. Jones «. Spring, 7 250. Plaintiff's deposition as to usurious interest under St. 1783. Frye «. Barker, (2 P.) 19 65. Under St. 1856, Ch. 188, party's own testi- mony admissible. Chase ». Breed, (5 G.) 71 440. Insufficient service of writ upon foreign cor- poration, before St. 1884, Ch. 330. Lewis «. Northern Railroad, 139 294. 32. A commissioner, appointed by the gov- ernor of another state to'take depositions here, is not an officer of this Commonwealth, or sub- ject to our statutes relating to fees; he can recover a reasonable compensation for his services. Lyman 11. Hayden, 118 422. 33. The employment of such a commissioner carries with it no implied authority to retain counsel, to instruct the commissioner, or to look after the interests of the party. Lyman v. Hayden, 118 422. 34. A commissioner, specially appointed by a court in another state, to take a deposition here, may administer an oath, and require a witness's attendance. Comm. v. Smith, (11 A.) 93 243. 35. If the commission directs the oath to be administered in a particular form, it may be thus administered. Comm. v. Smith,'.(ll A.) 93 243. (2.) Taking, certifying; returning. 36. A magistrate, who is brother-in-law to a stakeholder, party in an equity suit, is not dis- qualified. Culver v. Benedict, (13 G.) 79 7. 37. As to a magistrate who is son-in-law to a party, under St. 1797, Ch. 35, § 1. Chandler v. Brainard, (14 P.) 31 285. 38. As to the relation as counsel to a party which disqualifies the magistrate. Wood v. Cole, (13 P.) 30 279; Coffin i>. Jones, (13 P.) 30 441. 39. After the examination has been closed and the deposition signed, a memorandum of the magistrate, that the witness wished to cor- rect his testimony, is not a part of the examina- tion. Sabins v. Jones, 1 19 167. 40. Where the deposition as returned is not annexed to the commission and interrogatories, or a book or paper produced is not annexed to the deposition, it is not to be rejected, if all were inclosed in a wrapper, sealed by the com- missioner or magistrate. Savage v. Birckhead, (20 P.) 37 167; Shaw v. McGregory, 105 96; Downs v. Hawley, 112 237. 41. The caption must show at whose request the deposition was taken, that the adverse party had notice, and that the witness was duly sworn or affirmed, in the cause for which the deposi- - tion was taken. Barnes v. Ball, 1 73; Welles v. Fish, (3 P.) 20 74; Simpson v. Carleton, (1 A.) 83 109; Bacon «. Rogers, (8 A.) 90 146. 42. But it is not conclusive as to whether the adverse party had notice. Minot v. Bridgewater, 15 492. 43. If it states jthat the witness was affirmed, a further statement that he had conscientious: scruples against taking an oath, etc., is unnec- essary. Home v. Haverhill, 113 344. 44. It is no objection that there were two. actions pending between the same parties, and that the certificate does not show in which he: was sworn. Hale v. Silloway, (3 A.) 85 358. 45. A deposition certified as that of J. G. is admissible, although the witness calls himself and signs it as J. H. G. Reeder v. Holcomb, 105 93. 46. So a deposition, taken out of this Com- monwealth, upon interrogatories to "M. H. B., of Janesville, Wisconsin, laborer," which pur- ports, by the caption, to be that of M. H. B., of Sandusky, Ohio, under which the witness, states that he is a peddler, is admissible, if it. appears that he was the person intended. Smith «. Castles, (1 G.) 67 108. 47. The magistrate's certificate, that the wit- ness lives more than thirty miles from the place: of trial, is prima facie evidence of that fact. Littlehale «. Dix, (11 C.) 65 364. 48. So a certificate, that the deposition is taken because the witness is about to go out of the Commonwealth, is admissible, if he is absent , at the time of the trial, although he testifies in the deposition that he has no such intention. Livesey v. Bennett, (14 G.) SO 130. See, also, Kinney v. Berran, (6 C.) 60 394. 49. So where the certificate assigns the wit- ness's age and infirmity as the cause, evidence that he was not so aged and infirm as to he un- able to travel, is inadmissible, in the absence of fraud, to exclude the deposition. 350 DEPOSITION, I, (2); II; III. West Boylston v. Sterling, (17 P.) 126. 34 50. An objection to the form of the certifi- cate is not waived, because not made when the deposition was taken. Bacon v. Rogers, (8 A.) 90 146. 51. A formal objection to the certificate can- not be taken on the trial, if the deposition has been read before an auditor, without objection. Gould ». Hawkes, (1 A.) 83 170. 52. Kor can it be taken, where the hearings were continued six months after the deposition was admitted, subject to objections, and all the evidence has been put in. Tyng v. Thayer, (8 A.) 90 391. 53. A magistrate may amend his certificate beforj filing, and after filing by leave of the court. Hitchings «. E'lis, (1 A.) 83 475. 54. As to a United States revenue stamp. Cardell v. Bridge, (9 A.) 91 355. 55. The indorsement of the clerk upon the deposition, that it was opened and filed by him, is prima facie evidence that it was sealed, and directed to the court. Rodn v. Hapgood, (8 G.) 74 394. 56. Where the deposition was opened by mis- take by the party's agent, the court permitted it to be used, upon an affidavit stating the facts. Goff i). Goff, (1 P.) 18 475; Burrall v. Andrews, (16 P.) 33 551. See, how- ever, G. S., Ch. 131, § 27; P. S., Ch. 169, §33. 57. Where each of the parties had taken his depositions from the files, and, before the trial, the plaintiff's counsel notified the defendant's counsel that he should object to the defendant's depositions, because they were so taken, and the defendant's counsel answered that the plaintiff's depositions were open to the same objections, the defendant's depositions may be read, after the plaintiff's have been read without objection. Potter v. Leeds, (1 P.) 18 309. II. Depositions taken elsewhere by an Offices. 58. An affidavit upon a creditor's petition, under the insolvent law of 1838, which was taken in another state, is not competent proof upon which a warrant may be issued, unless it shows that the adverse party had notice of the taking thereof, or it was impossible to give him notice. Stearns v. Kellogg, (1 C.) 55 449. 59. Objections to the competency of inter- rogatories and answers, upon a deposition taken in another state by agreement of parties, may be first made at the trial. Atlantic Ins. Co. v. Fitzpatrick, (2 G.) 68 279. See, also, Palmer «. Crook, (7 G.) 73 418, post, art. 74. 60. Proof that the justice of the peace, by whom a foreign deposition was taken, was act- ing as such, is prima facie evidence of his authority to take it. Allen v. Perkins, (17 P.) 34 369. 61. Notice of taking the deposition is suffi- cient, if it gives the party a reasonable oppor- tunity to attend to cross-examine. Allen v. Perkins, (17 P.) 34 369. 62. As to taking such a deposition, after a commission was issued, see Davis ®. Allen, (14 P.) 31 313; cited, post, arts. 85, 86. HI. Depositions taken upon a Commission. (For general rules and other matters common to both kin of depositions, see ante, I.] 63. Where several depositions, taken under the same commission, were fastened, returned, and filed together, and the party taking them did not use all at the time, the adverse party, under the rule then in force, could not use the others. Ford v. Ford, (17 P.) 34 418. 64. A deposition, taken under a commission issued from the common pleas, and returned after appeal, but before entry of the appeal, may be used upon the trial in the supreme court. Steele ». Carson, (22 P.) 39 309 . 65. Where a cross interrogatory is so ob- scurely written, that a date therein stated is un- certain, the deposition will not be rejected because the magistrate and the witDess mistook the date. Robinson v. Boston & W. Railroad, (7 A.) 89 393. 66. The omission of the witness to answer some of the interrogatories may or may not be cause for rejecting the deposition, according to circumstances. Savage v. Birckhead, (20 P.) 37 167; Todd v. Bishop, 136 386. 67. Where the commission was directed to a commissioner named, and, in case of hisabsence, to a magistrate, the magistrate's certificate of the commissioner's absence suffices to render the deposition admissible. Savage v. Birckhead, (20 P.) 37 167. 68. A rule of the superior court, that if a deposition is certified by a person, purporting to be an officer authorized to take- it, the burden of proof that he was not such an officer snail be upon the party objecting, is within the statutory authority. McKinney ■». Wilson, 133 131. 69. Where an attesting witness, ex under a commission, testifies that he has no re- collection of seeing the instrument executed, or of signing his name thereto, the party may introduce other evidence of the execution and attestation. , _ ,„. Walker v. Warfield, (6 Met.) 47 466. 70. If the names of the witne? ses are known, they must be inserted in the commission. Bryant v. Comm. Ins. Co., (9 P.) ^*» 485. 71. Under a commission to take the deposi- tions of "J. S., and other members of the DM in P.," the depositions of other members ol tne bar may be taken, if no objection is made De- fore the commission issues. .<> Richardson ». Forepaugh, (7 h.) <«» 546. DEPOSITION, III. 351 72. Where a commission issues to "any" magistrate, to take the depositions of witnesses not named, and the adverse party requests that notice of the execution of the commission be given to his agent, the deposition is inadmissible, unless such notice is given. Bryant v. Comm. Ins. Co., (9 P.) 26 485. 73. Interrogatories must be objected to before' the commission is sent, and the objections must he noted, but the court will not decide upon them until the return. Potters. Leeds, (IP.) 18 309; Anony- mous, (2 P.) 19 165; Adams v. Wad- leigh, (10G.) 76 360. 74. But objections to the competency of answers may be first made at the trial. Palmer v. Crook, (7 G.) 73 418. See, also, Atlantic Ins. Co. v. Fitzpatrick, (2 G.) 68 279, ante, art. 59. 75. Where a commission is directed to a per- son by name, it is immaterial whether he has any official character. Adams v. Graves, (18 P.) 35 355. 76. A United States consul abroad is a mag- istrate, within the former rule. Savage «. Birckhead, (20 P.) 37 167. 77. Where a commission is directed to any justice of the peace, the fact that the person executing it is such justice, sufficiently appears by his signature as such. Adams v. Graves, (18 P.) 35 355. See, also, Allen v. Perkins, (17 P.) 34 369; ante, art. 60. 78. Several depositions may be taken under one commission, one caption, and one set of in- terrogatories. Howe v. Pierson, (12 G.) 78 26 79. The commission must certify that the in- terrogatories were proposed to the witness, and that the deposition was taken pursuant to the commission. Davis v. Allen, (14 P.) 31 313. 80. But it suffices, if this appears by neces- sary implication. Eeed «. Boardman, (20 P.) 37 441. 81. The oath may be administered to the wit- ness, in the form usual where the deposition is taken. Vail ». Mckerson, 6 262. See, also, ante, art. 35. 82. An exception does not lie to the admis- sion of a deposition, because the certificate does not show that the oath was administered in the proper form, or before the witness was exam- ined. Quinley v. Atkins, (9 G.) 75 370; Stiles e. Allen, (5 A.) 87 320; Bacon «. Rogers, (8 A.) 90 146; Burt i). Allen, 103 41. 83. So as to other formalities. Amnerst Bk. v. Root, (2 Met.) 43 522; Tyng v. Thayer, (8 A.) 90 391. 84. Where the commissioner certifies in the caption, that the directions accompanying the commission have been complied with, the depo- sition will not be rejected, because some of the answers lead to the belief that the witness, be- fore he answered certain interrogatories, read previous ones. Sabine «. Strong, (6 Met.) 47 270. 85. After a commission has issued, if the party wishes to take the deposition in the othe. state before a magistrate, under the statute, he must elect to suppress the commisskn, and so notify the adverse party; and he must other- wise proceed according to the statute. Davis v. Allen, (14 P.) 31 313. 86. Qu.. whether he can thus elect. Davis v. Allen, (14 P.) 31 313. 87. A deposition, prepared and written by the party, cannot be received. Amory i>. Fellowes, 5 219. 88. If the commissioner and the witness do not understand each other's language, an inter- preter must be sworn, and that fact must ap- pear in the certificate. Amory v. Fellowes, 5 219. 89. As to the attendance of an attorney, be- fore the rule on that subject. Farrow v. Comm. Ins. Co., (18 P.) 35 53. 90. A direction in an interrogatory, requiring the witness to make abstracts from the adverse party's books, and to call upon the commissioner to verify them, is nugatory, as the party is en- titled to have the entire books produced . Savage v. Birckhead, (20 P.) 37 167.* 91. A witness, called upon to annex docu ments to his deposition, is not bound to do so; but if he annexes a copy, and swears to its cor- rectness, that suffices, and he is entitled to be paid for making the copy. Amherst Bk. v. Conkey, (4 Met.) 45 459; Binney «. Russell, 109 55. 92. And where he is called upon to produce letters, and declines to annex either the origi- nals or copies, on the ground that they are his private communications, the deposition will not be suppressed, if it does not appear that there was any evasion. Amherst Bk. v. Conkey, (4 Met.) 45 459. 93. Where books, admissible in evidence, are not within the jurisdiction, copies, properly verified, may be used. Ide v. Pierce, 134 260. 94. Where, to an interrogatory calling for copies of entries in books, the witness answered, " see statement annexed," and a paper, purport- ing to be a transcript, is annexed to the deposi- tion, this suffices to show that the transcript has been compared and is a true copy. Ide v. Pierce, 134 260. 95. Copies of extracts are admissible, where the papers on file in a public office are to be proved, and only the extracts are on file. Lee ®. Thorndike, (2 Met.) 43 313. 96. Copies of papers are admissible, although the adverse party did not know they were to be produced, and so had no opportunity to cross examine concerning them. Lee v. Thorndike, (3 Met.) 43 813. 97. And in action on a promissory note, the signatures to which are not denied, a deposition will not be rejected,_ because the original note was shown to the witness and annexed jo his 352 DEPOSITION, III; IV— DESCENT AND DISTEIBUTION, I. deposition, although not referred to in the in- terrogatories. Smith v. Castles, (1 G.) 67 108. 98. If the deposition is returned ■without the commission and interrogatories, it is inadmis- sible. Woods v. Clark, (24 P.) 41 35. 99. Where a commission was issued to a foreign country, and the certificate annexed to the deposition was headed, ' State of Massa- chusetts, Suffolk, ss ," the -judge who tries the cause may find that it was taken in the foreign country, from evidence that the envelope, in which it was received, bore the foreign post- mark and postage stamp. McKinney v. Wilson, 133 131. 100. Where, at the trial, it does not appear that the witness is then within the Common- wealth, a deposition taken elsewhere, under a commission, may be read without proof of his Todd ®. Bishop, 136 386. [See, also, Divorce, art. 43.1 IT. Depositions in fehfetttal Remem- brance. 101. A deposition in perpetuam, taken before an indictment is found, cannot be read upon the trial of the indictment. Comm. v. Ricketson, (5 Met.) 46 412. 102. As to a deposition taken in 1678 under a colonial statute. Berry v. Raddin, (11 A.) 93 677. 103. Where all the persons adversely inter- ested, and the witness, reside without the Com- monwealth, a deposition in perpetuam can be taken only under G. S., Ch. 131, §§ 52 to 58; P. S., Ch. 169, §§ 58 to 64; and the court has no jurisdiction, under G. S., § 46 et seg.; P. S., §§ 52 et seg. India Ins. Co. v. Bigler, 132 171 104. After denial of a motion to have a depo- sition, taken under G. S., §§ 54 et seg,, P. S., §§ 60 et seg, recorded in the registry of deeds, the deposition is inadmissible; and it acquires no validity from a subsequent recording without an order. Simpson c. Dix, 131 179. 105. A deposition in perpetuam, cannot be used, unless it is recorded within ninety days after it is taken, although the adverse party was present, • Bradstreet v. Baldwin, 11 229; Braintree v. Hingham, (1 P.) 18 245. 106. The certificate of the two magistrates, that the parties interested had notice and ap- peared, and that the deponent was sworn, etc., entitles the deposition to be read in evidence. Brown «. King, (5 Met.) 46 173. 107. The facts, that the witness was sworn in the cause, and before he testified, and that the deposition was written by the witness or one of the magistrates, etc., may be inferentially stated in the certificate. Brown v. King, (5 Met.) 46 173. 108. A deposition in perpetuam, taken at the request of certain owners of mill sites, to estab- lish a right to flow land by means of a dam and reservoir, used jointly by them, is not admissi. ble in favor of one, to whom the lower mill site was conveyed by a deed which did not pass such a right. Brace *>. Yale, (4 A.) 86 393. 109. As to rulings rendered obsolete by, or incorporated into, the existing statutes, see:' Using the deposition "in a suit thereafter brought against the witness. Faunce «. Gray, (21 P.) 38 243. Using it in an action between other parties, Welles v. Fish, (3 P.) 20 74. Deposition taken in another state. Anonymous, (3 P.) 20 14. Using the deposition in an action commenced after it was taken. Greenfield v. Cushman, 16 393. Derelict. [See Lost Property; Salvage.] Descent and distribution. I. General Rules. II. Half Blood and Illegitimates. III. Child omitted in a Will. [As to distribution by an executor or administra- tor, see Executor, etc., VII, (2). As to the validity of a foreign divorce to out off husband or wife from a distributive share, etc., see Conflict of Laws, III, (5). As to a domestic divorce, see Divorce, v , (1). As to a widow's right to a distributive share, see Widow, III. As [to advancements, see Advance- ment. Generally, see, also. Devise and Bequest; Estate tail; Executor and Administrator; Heirs, etc.; Parent and Child; yARTrrios; Trust; Will.] I. General Rules. 1. Contingent interests in either real or per- sonal property, descend like vested interests. Clapp v. Stoughton, (10 P.) 27 463; Winslow v. Goodwin, (7 Met.) 48 363; Daltona. Savage, (9 Met.) 50 28. 2. The statute, providing that degrees of kin- dred shall be computed according to the civil law, provides for distribution according to that law, but does not adopt its principles in settling of whom they consist. Cooley v. Dewey, (4 P.) 21 93. 3. In this Commonwealth, a vested reversion or remainder descends to the heirs of the rever- sioner or remainderman. ' Miller ®. Miller, (10 Met.) 51 393. See, also, Whitney v. Whitney, 14 »»; Russell «. Hoar, (3 Met.) 44 187. 4. Persons who take by inheritance from & remote ancestor, by right of representation from a nearer ancestor, do not take by inheritance from the latter, within G. S., Ch. 91, S l - subd. 6. 00 1ir1 Sedgwick v. Minot, (6 A) »» *£; See, also, Howland «. Howland, (U u ■ ; 77 469; Valentine D.Borden, 100 no- DESCENT AND DISTRIBUTION, I; II. 353 5. A devise to an heir at law, of tlie same es- tate which he would have taken by descent, without the devise, is inoperative, and he takes the land by descent. Ellis*. Page, (7 C.) 61 161. [See, also, Devise akd Bequest, arts. 144, 145.1 6. Where a trust deed of personalty, exe- cuted here, and by a resident of this Common- wealth, authorized the trustee to invest the fund in real property, which was never done; and after disposing of the income, provided that on the death of the beneficiary, the princi- pal should be paid to A, if living, and if not living, to A's "heirs at law;" it was held, that our law governed, and that the words " heirs at law " meant heirs at law, and not next of kin. Merrill v. Preston, 135 451. See, however, Sweet v. Dutton, 109 589; partly overruled by this case; and Devise akd Bequest, art. 98. 7. Under G. S.. Ch. 91, § 1, subd. 3, and Ch. 94, § 16, where an intestate leaves no issue, or parents, but a sister, the children of a deceased child of a deceased sister are not entitled to share in the distribution. Bigelow n. Morong, 103 287. As to the rule, under P. S., Ch. 135, § 3. Conant v. Kent, ISO 178. 8. Under St. 1876, Ch. 220; P. S., Ch. 135, § 3; P. S., Ch. 125, § 1, if an intestate leaves no issue and no parents, brothers, or sisters, the estate goes to the children of deceased brothers and sisters, to the exclusion of children of de- ceased nephews or nieces. Conant v. Kent, 130 178. _ 9. Under G. S., Ch. 91, § 1, subd. 5; if the intestate left no issue, and no parents, and no brother or sister, the nephew and nieces took per capita, not per stirpes. Snow®. Snow, 111 389. 10. Where the next of kin of an intestate are her paternal grandmother, and her maternal graflflfather and grandmother, each takes one third of the personal estate. Knapp. v Windsor, (6 C.) 60 156. 11. Where a testator, who left a widow, brother, niece, and uncles and. aunts, provided for his widow, excluded his brother, and left the residue to his other " legal " heirs, the niece takes the whole. Minot 1>. Harris, 132 528. 12. For rulings under former statutes, see As to alien ancestors before the constitution. Palmer «. Downer, 2 179, note. As to St. 1783, Ch. 36, § 1, repealed by St. 1789, Ch. 2, as affecting the reversioner's in- terest upon the death, in 1790, of a tenant by the curtesy, holding land as surviving hus- band of a woman dying before the repealing statute. Miller v. Miller, (10 Met.) 51 393. As to St. 1783, Ch. 36, where the child' of a deceased father died unmarried and intestate, after attaining his majority, leaving a mother, and surviving brothers and sisters, and repris. sentatives of deceased brothers and sisters. Mayo v. Boyd, 3 13. ■^ s t° the provincial statute 9 Anne, and the effect thereof, under similar circumstances. Mayo n. Boyd, 3 13. Vol. 1—45 As to the provincial statute of 4 W. & M.> as affecting to the descent of land, where the in- testate left surviving brothers, and sisters, and parents. Runey v. Edinands, 15 291. Also, under G. S., Ch. 91, § 1, under the same circumstances. Richardson v. Stodder, 100 528. As to the provincial statutes, and the statute of 1783, where one seized in fee left a widow, and a child, who died under age and unmar- ried, and the widow had surviving children by a former husband. Sheffield «. Lovering, 12 490. As to St. 1805, Ch. 90, relating to land com- ing by inheritance from the father, where it was devised by the father. Nash v. Cutler, (16 P.) 33 491. [As to descent of an estate tail, see Estate tail.] 13. Where A and his wife, by their joint fraud, procured a divorce from a court of an- other state, having no jurisdiction, ami she went through the form of marriage with another man, and lived with him as his wife till her death, and left a will bequeathing him, unfler the designation of her "husband," half her property, it was held, the statute then requiring a husband's assent to a will, that the will was void, and A was entitled to his distributive share as husband of the deceased. Hardy «. Smith, 136 328. 14. Under R. S., Ch. 61, § 1, cl. 6, where a person died intestate, leaving a widow and six children, of whom three, A, B, and C, died in- fants and unmarried, it was held, that upon the death of B and C, the \\ idow was entitled to share equally with the surviving children in all that part of B and C's estate, which they did not derive directly from their father. Goodrich v. Adams, 138 552. II. Half Blood and Illegitimates. [As to who is, and who is not, illegitimate, and the evidence of legitimacy, see B ast akd, 1.1 15. Under G. S., Ch. 91, § 5; P. S., Ch. 125, § 2, kindred of the half blood in any degree in- herit equally with those of whole blood in the same degree. Larrabee v. Tucker, 116 562. 16. As to the rule under the provincial stat- utes. Sheffield v. Lovering, 12 490. 17. Before the statute of 1828, the mother of an illegitimate child did not inherit from him. Cooley v. Dewey, (4 P.) 21 93. 18. And before G. S., Ch. 91, § 2; P. S., Ch. 125, § 3, the children of a deceased illegitimate child could not inherit from their grandmother. Curtis v. Hewins, (11 Met.) 52 294. 19. And even now an illegitimate child can- not inherit from his sister, or his mother's col- lateral kindred. Pratt v. Atwood, 108 40; Haraden v. Larrabee, 113 430. LSee, also, post, art. 21. ] 354 DESCENT AND DISTEIBUTION, III— DEVISE. III. Child omitted in a "Will. 20. G. 8., Ch. 92, § 25; P. 8., Ch. 127, § 21, making provision for a child omitted in a will, does not apply to an estate in which the testator has merely a power of appointment. Sewall v. Wilmer, 132 131. 21. Nor does it apply to an illegitimate child, omitted in his mother's will. Kent v. Barker, (2 G.) 68 535. 22. If tiie child is named in the will, either directly or in a legacy to his children, that shows that the omission was intentional. Terry v. Foster, 1 146; "Wild v. Brewer, 2 570; Church ». Crocker, 3 17. 23. So where the will named the husband of a deceased daughter, and gave a legacy to one of her children, and none to the others. Wilder v. Gjss, 14 357. 24. But this presumption may he rebutted, if the testatrix was aged, and her grandchildren very numerous. Tucker v. Boston, (18 P.) 35 162. 25. The only question is whether a provision was omitted in the will from design or by acci- dent. The omission may be shown to be inten- tional, either by the terms of the will, or, where they are ilent or leave the question doubtful, by oral evidence of the attending circumstances, the mental characteristics of the testator, his relations to the legatees and his children, declarations of the testator, and former similar wills. Wilson v. Fosket, (6 Met.) 47 400; Bancroft v. Ives, (3 G.) 69 367; Con- verse v. Wales, (4 A.) 86 512; Rams- dill r>. Wentworth, 101 125; Buckley v. Gerard, 123 8; Peters v. Siders, 126 135; Bowen «. Hoxie, 137 327. 26. If the child's omission was intentional, although proceeding from the testator's mistake as to the legal effect of matters outside the will, he has no remedy. Hurley v. O'Sullivan, 137 86. 27. If the omission was caused by a mistake as to the legal effect of the will and its provis- ions, the case is within the statute. Ramsdill t>. Wentworth, 101 125. 28. As if the testator supposed, in ignorance or by mistake of the law, that he had provided for the omitted child by the terms used in the will, or that the will left part of his estate un- devised, which the child would inherit, that is the mistake referred to in the statute. Ramsdill v. Wentworth, lOl 125. 29. The provision applies to a child born af- ter the making of the will. Bancroft v. Ives, (3 G.) 69 367. 30. But not if such a contingency is provided for in the will. Prentiss ». Prentiss, (11 A.) 93 47. 31. It does not apply to an adopted child, where the will, made before the adoption, makes provision for her by the name she then bore. Bowdlear v. Bowdlear, 112 184 32. The successive statutes on this subject are substantial re-enactments of the provincial statutes of 12 W. Ill, Ch. 4, as judicially con- strued, the preamble and other provisions of which, (for an abstract of which, see this case ) have always had a just influence upon the con- struction of the existing law. Ramsdill v. Wentworth, 101 125. See, also, Bancroft v. Ives, (3 G.) 69 367. 33. Under the act of 1783, it was not neces- sary, to exclude a child or a grandchild, that he should have a legacy: it was sufficient that it should appear that the testator had not forgot- ten him. Terry v. Foster, 1 146; Wild v. Brew- er, 2 570; Church ». Crocker, 3 17; Wilder v. Goss, 14 357; Tucker v. Bo* ton, (18 P.) 35 162. 34. But the presumption is, if he has no leg- acy, that he was unintentionally overlooked, and that presumption must be rebutted by ex- trinsic evidence. Tucker v. Boston, (18 P.) 35 165; Ramsdill v. Wentworth, 106 320. 35. A grandchild will not take under the statute, where her mother is provided for by an annuity, although she dies before the testator. Wilder v. Thayer, 97 439. Desertion. [See Divorce, n, (3); Husband and Wife.II, (i); Parent and Child, I, (2); POOR, I, (2); United States Forces, I.] Detainer, forcible. [See Forcible Entry and Detainer.] Deviation. [See Insurance, V, (9).] Devise and bequest. I. SUFFICIENCY EST GENERAL. (1.) What may be devised or bequeathed; after acquired property. (2.) Who may take. (3.) What words pass realty and personalty. II. INTERPRETATION AND EFFECT, IN SENS- UAL. (1.) Description of the property. (2.) When specific, general, or demonstrative; incumbrances; failure of gift. (3.) Designation of the devisee or legatee. (4.) Residue, and residuary clauses. (5.) Per stirpes or per capita. (6.) Void bequests, devises, and provisions. (7.) Devise or bequest as payment or forgive- ness of a debt. DEVISE AND BEQUEST, I, (1), (2). 355 III. Interpretation and Effect, as to the Estate or Interest given. (1.) Life estate; legacy for life; income. (2.) Annuity. (3.) Estate tail. (4.) Estate in fee simple: absolute legacy. (5.) Shares; tenancy, joint, in common, or several. (6.) Vested and contingent remainders, and like equitable interests, and interests in person- alty. (7.) Executory devise. (8.) Conditions; charges; gifts for support. IV. Abatement and Contribution. V. Revocation; Ademption; Renuncia- tion; Lapse. VI. Satisfaction; Interest; Remedies. [See, also, Advancement; Charity; Executor and Administrator; Heirs, etc.; Income; Joint Tenants and Tenants in Common; Perpetuity; Power; Trust; Will.1 I. Sufficiency in general. (1.) What may be devised or bequeathed; after acquired property. 1. Before the R. S., one conld not devise lands of which he was disseized, except to the Poor e. Robinson, lO 131; Smith- wick 'v. Jordan, 15 113; Ward «. Fuller, (15 P.) 32 185. 2. But the devisee of vacant and unoccupied land has a seisin by operation of law. Wells®. Prince, 4 64; Ward v. Fuller, (15 P.) 32 185. 3. To give him seisin he must enter, or do some act equivalent to entry; and the entry of a co-tenant suffices. Brown v. Wood, 17 68. See, also, Wells v. Prince, 4 64. 4. The reversionary interest of a grantor in an estate granted upon condition may be de- vised. Hayden «. Stoughton, (5 P.) 22 528; Clapp v. Stoughton, (10 P.) 27 463; Austin o. Cambridgeport, (21 P.) 38 215. See, also, Brigham «. Shattuck, (10 P.) 27 306. 5. The reversion, expectant upon the deter- mination of an estate tail, may be devised. Steel «. Cook, (1 Met.) 42 281. 6. One in possession of land under a bond for a deed, who has paid the purchase money, has a devisable interest in the land. Brooks ». Whitney, (11 Met.) 52 413. 7. And an equitable fee simple may be de- vised, where the legal estate is in another. Newhall v. Wheeler, 7 189. 8. At common law, there can be no uribe- queathed personal property, where an executor is appointed. Hays v. Jackson, 6 149; Ballard v. Carter, (5 P.) 22 112. 9. Before the R. S., land acquired by a testator after making his will, including land acquired by foreclosure of a mortgage, woule}. not pass, although all the lands of which he should die seized were devised. Hays v. Jackson, 6 149; Ballard v. Carter, (5 P.) 22 112; Havens Foster, (14 P.) 31 534; Brigham v. Winchester, (lMet.) 42 390. 10. But where a codicil was made after the land was acquired, that was equivalent to a re- publication, and the land passed by the will. Haven v. Foster, (14 P.) 31 534; Wait «. Belding, (24 P.) 41 129. 11. But if the codicil otherwise disposed of the testator's land, then the after acquired land was included in such disposition. Haven v. Foster, (14 P.) 31 534. 12. The interest of one of the incorporated proprietors of a wharf, in land purchased by them for the use of the wharf, would pass by a devise of his interest in the wharf, made before the R. S. and before the purchase. Holland 1>. Cruft, (3 G.) 69 162. 13. The provision of the R. S. applied to a will made before they took effect. Cushingj). Aylwin, (12 Met.) 53 169; Pray v. Waterston, (12 Met.) 53 262; Winchester v. Forster, (3 C.) 57 366. 14. So as to a codicil made after the R. S., to a will made before. Brimmer v. Sohier, (1 C.) 55 118. 15. Under that provision, after acquired land will pass by general words of devise of all the testator's property, where there is nothing to show that he intended to die intestate as to that property, and testate as to the remainder. Cushing ». Aylwin, (12 Met.) 53 169; Pray «. Waterston, (12 Met.) 53 262; Brimmer «. Sohier, (1 C.) 55 118; Win- Chester «. Forster, (3 C.) 57 366. 16. The provision operates to pass an after acquired undivided half of land, under a re- siduary clause, where the testator had specifi- cally devised the other half. Hill «. Bacon, 106 578. 17. But where " a mansion house and the other buildings thereon," etc., were devised specifically, and the testator afterwards pur- chased land adjoining his mansion hous^ estate, tore down the fences, and threw it into the same parcel as the estate, and used it therewith, it was held that the. parcel passed under the specific devise, not under the residuary clause. Kimball v. Ellison, 128 41. 18. Mortgaged land, upon which the testator has entered for condition broken, passes under a residuary clause in the will, and does not go to the 'heir. Fay®. Cheney, (14 P.) 31 399. (2.) Who may take. 19. An unincorporated society may take a bequest to charitable uses. Burbank v. Whitney, (24 P.) 41 146. Burbank So may a foreign charitable corporation. Burbank r. Whitney, (24 P.) 41 146. 20. So may a foreign charitable corporation. 356 DEVISE AND BEQUEST, I, (2), (3). 21. So may a parish, or other religious cor- poration. Sohier v. St. Paul's Church,. (12 Met.) 53 250. [See, also. Charity.] 22. As to the general power of a religious corporation to take a devise, see King's Chapel «. Pelham, 9 501. 23. A parish may take a devise for a school. Sutton Parish v. Cole, (3 P.) 30 232; "White v. Braintree Parish, (13 Met.) 54 506. 24. But a devise to a parish for a school, for the use only of the inhabitants of a certain town, where the parish includes inhabitants of another town, is void, because the parish can- not take. Barker v. Wood, 9 419. 25. A devise of lands towards the support of public worship, for the benefit of the inhabit- ants of a precinct, the estate to be leased, and the yearly income to be paid to the minister, is a devise to the inhabitants, and the minister has no title to the income. Thompson v. Catholic, etc., Society Re- hoboth, (5 P.) 22 469. 26. Where a corporation was allowed by its charter to hold but a certain amount of prop- erty, and a bequest to it exceeded that amount, but before payment, an amendment to the charter allowed it to hold the increased amount, it was held that the corporation might take. Baker ■». Clarke Institution, etc., HO 88. 27. The statutes of Massachusetts make no restriction as to who may be devisees or lega- tees, and, in the absence of evidence, such mil be presumed to be the law of another state. Dickson «. United States, 125 311. 28. And here the United States may take a devise or a legacy, although it was expressed to be given for the purpose of suppressing the re- bellion, which was accomplished before the tes- tator's death. Dickson v. United States, 125 311. 29. As to a bequest to a married woman, be- fore the statute authorized her, to take for her own use. Hapgood «. Houghton, (22 P.) 39 480; Alber «. Carpenter, (12 C.) 66 382. [See, also. Husband and Wife, II; III.l C3.) What -words pass realty and per- sonalty. 30. A will, mentioning only personal prop- erty, of which all was not specifically bequeath- ed, and concluding, " I do hereby give and be- queath to, etc., all the residue of my furniture and estate, whatever and wherever it may be," will not pass real property. Bullard v. Goffe, (20 P.) 37 252. 31-, Where the words "property" and "es- tate have been held limited to personalty, it has been where there were qualifying words, or where those general terms were so connected or mixed, with words expressing only things personal, as to limit their meaning. Hunt v. Hunt, (4 G.) 70 190; Allen v. White, 97 504. ^ en 32. In the absence of such indications of a restrictive intent, such general words in a resi- duary clause will pass real as well as personal property, not otherwise disposed of. Houghton®. Hapgood, (13 P.) 30 154- Dewey v. Morgan, (18 P.) 35 oos! Hunt •. Hunt, (4 G.) 70 190; LaW t>. Barbour, 1 19 523. ^ 33. Where a will, after specific devises of real property in the first, second, and third clauses, gave the residue of the testator's real property to P and her J eirs, by the fourth clause; and then contained various legacies, and one devise, in the filth to the eleventh clauses, and by the twelfth clause gave the residue of his " property and estate" to P and E equally, without words of inheritance, and the devise in the first clause lapsed ; it was held that it passed to P and E, under the twelfth clause. Allen «. White, 97 504. 34. And a general residuary clause, disposing of "property" and " estate," will, where such appears "to be the intention, include real prop- erty, although it is disposed of by the word " bequeath " only, or the person to whom it is given is described as " residuary legatee." Laing v. Barbour, 119 528. See, also, Hunt v. Hunt, (4 G.) 70 190. 35. A bequest of $500 to the testator's wife, " to be taken out of such property as she shall think proper," does not transfer real property to her, by her signifying her election to take it; but personal property may be so transferred at its market value, to be fixed by competent judges. Pisk v. Cushman, (6 C.) 60 20. 36. A devise of an interest in growing wood, passes an interest in the land. Wright v. Barrett, (13 P.) 30 41. 37. A bequest, preceded by a recital that in consequence of the death of the testator's son, part of his property has fallen into his hands, of $1,000 to a society, and the remainder to be divided between two other societies, passes only the actual amount received from his son's es- tate, that being less than $1,000. Bliss «. Am. Bible Soc, (2 A.) 84 334. 38. Legacies by implication will not, be sup- ported, unless the testator's intention is so clear, that no other reasonable inference can be made. Per Wilde, J., in Grout v. Hapgood, (13 P.) 30 159. 39. Where a testator devised to one of his sons the homestead, and directed half of the in- cumbrance thereon to be paid out of his estate, and directed a division among his children of his property undisposed of, after taking out enough to clear the homestead; and the son died insolvent, and the homestead was sold by the executor to pay debts, it was held, that the pur- pose of the legacy was defeated, and the son's estate was not entitled to a sum equal to half of the incumbrance. Grout v. Hapgood, (13 P.) 30 159. 40. A recital that the testator has given one. son his note for $1,000 for his part of the estate, is a legacy to that amount, the note being with- out consideration. DEVISE AND BEQUEST, I, (3); II, (1). 357 Loring « Sumner, (S3 P.) 40 98; Wilbar ». Smith, (5 A.) 87 194. 41. A bequest of one half of the testator's personal property, means one half, after pay- ment of debts and charges of administration. Briggs v. Hosford, (22 P.) 39 288. 42. But where such a bequest is followed by a residuary clause, disposing of the personal property, after deducting that bequest and the testator's debts, the debts are not to be deducted in estimating the bequest. Bardwell «. Bardwell, (10 P.) 27 19. 43. Where the reading of the whole will pro- duces a conviction that the testator must neces- sarily have intended an interest to be given, which is not bequeathed by express words, the court will supply the defect by implication, and so mould the language as to carry into effect, as far as possible, the intention so declared. Metcalf ®. Framingham Parish, 128 370. See, also, Ferson v. Dodge, (23 P.) 40 287; "Weston v. "Weston, 125 268. 44. Where a will devises real property to children, and gives the executors a power of sale, and a codicil devises the property to the executors, with a power of sale added, referring to the original will, the codicil vests the legal estate in the executors. Gerard v. Buckley, 137 475. II. Interpretation and Effect, in gen- eral. (1.) Description of the property. 45. A bequest of "household furniture" in- cludes bronzes, statuary, and paintings in the house, used as ornaments, and not out of pro- portion to the testator's means. Richardson v. Hall, 124 228. 46. A residuary bequest of " all the money," which should be left at the testator's death, will include promissory notes, if such appears to be the intent from the whole will. Morton «. Perry, (1 Met.) 42 446. 47. But a bequest of "in-door movables" will not include promissory notes. Penniman ». French, (17 P.) 34 404. 48. A bequest of all moneys due the testator from the "Dedham Bank," will not embrace moneys on deposit in the " Dedham Institution for Savings," where there was another institu- tion known as the Dedham Bank; and oral evi- dence is inadmissible to show that the testator never had any money in the latter. American Bible Soc. v. Pratt, (9 A.) 91 109. ' 49. A bequest of bank stock passes the stock after renewal of the charter. Barrett v. Wright, (13 P.) 30 45. 50. And a bequest of stock in a corporation passes, not only the shares standing in the name of the testator, but the shares of new stock which he had subscribed for, and half the sab- scnption to which he had paid. Emery «. Wason, 107 507. 51. A bequest to a daughter of a certain annuity, out of the testator's IT. S. three per cent stock, with a proviso that at her death "the same" should be disposed of as stated, disposes of the stock and not the annuity, after the daughter's death; and the fund remains till her death in the executor's hands, subject to the annuity, although it has been partly paid off since the testator's death; and the amount is larger than is required to raise the annuity. Hancock v. Hancock, (14 P.) 31 70. 52. A will deviiing land on a stream to A, and other land below on the same stream, with a mill, to H, "together with the privilege of the stream, so as not to damage" certain mills below H, does not give H the right, as against A, to raise the dam higher than the tesiator used it, or to build a separate dam in another place. Davis v. Wilson, (6 C.) 60 203. 53. A devise of a furnace, "and the privi- lege of using water to blow with," gives only the right to use the power to blow the bellows of the furnace, although other operations, for which the devisee had used the water, under a lease containing the same words, were a neces- sary part of the business of the furnace, and furnace men testified that among them, the word "blow" included such operations. Lincoln v. Lincoln, 110 449. 54. A bequest of " one hundred dollars, in- cluding money trusteed " at a certain bank, is a gift of one hundred dollars, although the claim for which the bank is trusteed is less, and the money there more, and the trustee suit is afterwards discontinued. Brainard «. Darling, 132 218. 55. A bequest of " all my personal property, my household effects, horse, and carriages, my life insurance," and certain mortgages and bank stock, followed by specific bequests, is not a residuary bequest, but covers only property of personal use and convenience. Johnson e. (Joss, 128 433. 56. A bequest of "two mortgages on real estate, executed by W in C," does not cover a third, executed by W's wife. Johnson v. Goss, 128 433. 57. A bequest of " one mortgage on H. B., of L." covers one of two such mortgages, the legatee to elect which. Johnson v. Goss, 128 433. 58. A bequest of "my interest in lands, and machinery, and effects in the sash and blind factory at C.," the factory, etc., being the prop- erty of a corporation, of which the testator was a shareholder, carries only the shares, not a debt due to the testator from the corporation. Johnson v. Goss, 128 433. 59. A devise of the testator's "house lot, con- stituting my homestead estate," will not pass adjoining land, bought for the convenience of the homestead lot, but never included therein, and leased to tenants. Perkins v. Jewett, (11 A.) 93 9. 60. So where the testator built and occupied a new house, and leased the old house and the land about it, a devise of the "homestead" carries only the new house, and land used there- with. Backus i>. Chapman, 111 386. 61. But several parcels of land, bought at different times, if all used in connection with 358 DEVISE AND BEQUEST, II, (1), (2). the dwelling house, will pass under a devise of the homestead. Melcher v. Chase, 105 135. 62. For additional cases upon this question, Kimball v. Ellison, 128 41, cited, ante, art. 17; and Bacon ». Leonard, (4 P.) 21 277; Taylor v. Mixter, (11 P.) 28 341. 63. So where the devise described the prop- erty as the testator's house, or dwelling house, or the like. Otis v. Smith, (9 P.) 26 293; Eliot v. Carter, (12 P.) 29 436; Browne. Salton- stall, (3 Met.) 44 423; Read ». Clarke, 109 82; Cleverly v. Cleverly, 124 314. 64. A devise of " all the real estate I may die possessed of, which property is situate on the north side of " a certain street, will pass also a vacant lot on the south side. Martin . Hooper, (9 C.) 63 122. 119. So, as to the proceeds of real property directed to be sold after the wife's death. Hooper «. Hooper, (9 C.) 63 122. 120. A clause bequeathing "all my house- hold furniture, wearing apparel, and all the rest and residue of my personal property, saving and excepting one feather bed," passes all the resi- due of the personal property, after the specific legacies; although in subsequent clauses specific legacies are given, and various collateral heirs, one of whom is nearer than the residuary leg- atees, are not named. Browne v. Cogswell, (5 A.) 87 556. 121. A residuary clause carries all personal property not otherwise disposed of, including conditional, lapsed, and void legacies. And since the R. S., the same rule applies to real prop- Thayer v. Wellington, (9 A.) 91 288; Bigelow v. Gillott, 123 102. See.ako, Austin «. Cambridgeport Par., (21 P.) «> s 215. 122. For rulings as to the construction and effect of other residuary clauses, under the pe DEVISE AND BEQUEST, II, (5), (6). 361 culiar language of the clauses themselves, and of other parts of particular wiCs, see Parks v. Knowlton, (14 P.) 31 432; Griswold v. Heard, (i G.) 68 322; Firth v Denny, (2 A.) 84 468; "Wilbar t>. Smith, (5 A.) 87 194; Pierce i>. Smith, (18 A.) 95 42 ; Eotch v. Emerson, 105 431; Merritt v. Converse, 123 338; Briggs v. Wade, 124 380 <5.) Per stirpes, or per capita. [See, also, ante, arts. 106, 109.1 123. As a general rule, under a gift either to the "children" of several persons, or to a per- son standing in a certain relation to the testator, and the " children" of another standing in the same relation, the objects of the gift take per Balcom v. Haynes, (14 A.) 96 204; Merriam «. Simonds, 121 198. See,, also, "Weston v. Poster, (7 Met.) 48 297; Leland v. Adams, (12 A.) 94 286; Has- kell «. Sargent, 113 341; Brooks «. Carter, 118 407; Hill v. Bowers, 120 135. 124. But this rule will yield to a very faint glimpse of a different intention in the context. Balcom v. Haynes, (14 A.) 96 204. 125. The addition of the words "and the survivors of them," or the like, does not indi- cate any different intent. Hill v. Bowers, 120 135; Minot v. Taylor, 129 160. 126. The word "heirs," however, implies a different intent, and in the absence of con- trolling or explanatory words, is to he applied per stirpes. Daggett e. Slack, (8 Met.) 49 450; Tillinghast v. Cook, (9 Met.) 50 143; Balcom «. Haynes, (14 A.) 96 204; Bas- sett v. Granger, 100 348; Band v. Sanger, 115 124. 127. But where the word "heirs'" is used, the_ addition of the words "to he equally divided between them," indicates an intent to give per capita, if those words apply to the heirs inter sese; aliter, if they apply to the division between the classes. Holbrook «. Harrington, (16 G.) 82 102; Balcom v. Haynes, (14 A.) 96 204. 128. For a construction of a will, where all the _ foregoing words, and in addition "per capita" and "per stirpes," were used, see Band v. Sanger, 1 15 124. ■ 129. "Where a testator devises land to his daughter for life, with a vested remainder in fee to her children, if any of the children die before the testator, the surviving descendants take per stirpes. Bowers «. Porter, (4 P.) 21 198; Houghton v. Kendall, (7 A.) 89 72. See, also, Minot e. Taylor, 129 160. (6.) Void bequests, devises, and provis- ions, t ra?^^ 180 ' PpMsnrrrr ahd Kemotbnbss; Trust, •i, W; will, 1.7 * Vol. 1—46 130. A devise, subject to a conditional limita- tion which is void for remoteness, vests an ab- solute estate in the first taker. Brattle Sq. Church v. Grant, (3 G.) 69 142. See, also, Sears e. Russell, (8 G.) 74 86; Sears v. Putnam, 102 5 [See, also, post, III, (8.)) 181. But where the gift over is void for un- certainty, the absolute estate vests in the heirs as intestate property. Brown v. Kelsey, (2 C.) 56 243. 132. A 1 mitation over is void, where it is clearly the intent of the testator that the devisee shall have the absolute right of disposal. Ide i>. Ide, 5 500; Burbank v. "Whit- ney, (24 P.) 41 146. 133. A provision that land devised shall not be subject to execution or attachment, is void as repugnant. Blackstone Bk. «. Davis, (21 P.) 38 42. 134. But a devise to an infant, provided he shall not come into possession during his minor- ity, except through his guardian, is good. Smith wick v. Jordan, 15 113; Black- stone Bk. v. Davis, (21 P.) .38 42. 135. "Where an absolute estate or a vested re- mainder is given, a restriction upon the power of alienation is repugnant and void. Hall 1>. Tufts, (18 P.) 35 455; Black- stone Bk. v. Davis, (21 P.) 38 42; Lane v. Lane, (8 A.) 90 350; Sears «. Put- nam, 102 5. 136. And where land is devised by terms apt to create a fee, a limitation over, m case the devisee does not dispose of it, is void. Damrell «. Hartt, 137 218. See, also, Kelley ®. Meins, 135 231, and poet, HI, (6). 137. A limitation which, by any possibility, may not take effect until after the termination of a life in being at the testator's death, and twenty-one years afterwards, is void for re- moteness. Sears v. Russell, (8 G.) 74 36. See, also, Brattle Sq. Ch. v. Grant, (3 G.) 69 142; Thorndike v. Loring, (15 G.) 81 391; Posdick «. Fosdick, (6 A.) 88 41; Lovering v. Worthington, 106 86; Pratt v. Alger, 136 550. 138. A devise of life estates to A's children, which includes a child born after the testator's death, is void for remoteness. Lovering v. Lovering, 129 97. 139. "Where the literal meaning of the lan- guage used by the testator cannot be attached to it, and a liberal construction, to meet the tes- tator's views, will obviously defeat his prime intent, the language is inoperative and void. Hill ». Downes, 125 509. See, also, "Whipple v. Adams, (1 Met.) 42 444. 140. A provision that certain persons, contin- gently entitled to a remainder, may dispose of ft, is repugnant to the ultimate gift over, and void. Sears «. Russell, (8 G.) 74 86. 141. A devise to a town for the support ol a school for all of its inhabitants, except certain persons named, and their descendants, is void 362 DEVISE AND BEQUEST, II, (6), (V); III, (1). as to the restriction, which is contrary to public policy. Nourse v. Merriam, (8 C.) 62 11. 142. A general restriction upon marriage is void, unless there is a gift over. Parsons «. Winslow, 6 169; Otis ». Prince, (10 G) 76 581. 143 And a gift over to the heirs of the bene- ficiary is not sufficient, as no one is the heir of a living person. Otis ». Prince, (10 G.) 76 581. 144. A devise to an heir at law, of the same estate which he would take by descent, is void, and he takes by descent, subject to the land being sold for the payment of legacies. Whitney v. Whitney, 14 88; Ellis «. Page, (7 0.) 61 161; Sears v. Russell, (8 G.) 74 86; Pierce ». Smith, (13 A.) 95 42. 145. And the rule is the same, although the devisee would have taken by representation. Sedgwick ». Minot, (6 A.) 88 171. 146 A devise for the propagation of Christi- anity among the heathen, is not void for uncer- tainty, or otherwise. Bartlet ».. King, 12 537. [See, also, Charity,1 147. A power given by a will to an executor, to sell real property for a purpose within the rule against perpetuities, is void. Bates v. Bates, 134 110. (7.) Devise or bequest as payment or forgiveness of a debt. 148. There is no presumption, from the mere fact that a pecuniary legacy_ is given to the tes- tator's debtor, that it was intended to forgive him the debt, in addition to the legacy. Blackler ». Boott, 114 34. 149. Nor will such an inference be drawn from a proviso attached to a legacy to another person, making it conditional upon payment of a debt of like amount with the legacy. Blackler «. Boott, 114 24. 150. A legacy, exactly corresponding in amount and time to a debt due from the testa- tor to the legatee, where no different intention is shown in the will, is presumed to be in satis- faction of, not in addition to the debt. Allen v. Merwin, 121 378. See, also, Strong v. Williams, 12 390. 151. But where the legacy is less than the debt, although the difference is caused by the interest on the debt, no such presumption arises. Parker v. Coburn, (10 A.) 92 82. 152. And where the testator bequeaths his debtor a less sum of money than the debt, besides personal property exceeding it in value, expressing the legacy to be for meritorious ser- vices, the Uebt is not satisfied thereby. Strong «. Williams, 12 390. 153. And generally, a bequest or devise, per se, carries with it no presumption that it was in satisfaction of a debt due from the testator. Smith v. Smith, (1 A.) 83 129. 154. Where a will provides that A, the father of the testator's grandchildren, shall, as long as he supports them, have the use of a certain house and lot, the fee of which is in the grand- children, but upon which the testator holds a mortgage, the executor cannot, while A is per- forming the condition, maintain a writ of entry to foreclose the mortgage. Millard v. Clark, 118 382. 155. The bequest of the debt to the debtor, either eo nomine, or by leaving it to be em' braced in a residuary clause in his favor, extin- guishes the debt. Hobart «. Stone, (10 P.) 27 215. 156. For a ruling, construing a provkon directing the discharge of a debt, as applying to an agreement which was not strictly a debt, see Bradlee v. Andrews, 137 50. III. Interpretation and Effect, as to the Estate or Interest gtven. tSee, also. Executor and Administrator, IV; Power.} (1.) Iilfe estate; legacy for life : Income. [See, also, Income; Tenant tor Lot.] 157. A devise of the use, the improvement, the occupation, or the like, is a devise for the life of the devisee. Davison v. Gates, (11 P.) 28 247; Brooks ». Whitney, (11 Met.) 52 413; Pay v. Fay, (1 C.) 55 93; Raymond ;b. Morse, (4 G.) 70 248; Lormgfl.Loring, 100 340; Farnum i>. Bascom, 122 282. 158. The same rule applies to a bequest of personalty. Ellis v. Essex Merrimack Bridge, (2 P.) 19 243. 159. A devise of the use and improvement of real property during life, or "so long as she chooses personally to occupy and improve the same," is a devise of a life estate, subject, in the latter case, to termination by the devisee ceasing to occupy the property. Wilmarth v. Bridges, 113 407. See, also, Blackstone Bk. «. Davis, (21 P.) 38 42; Plympton U.Boston Dispensary, 106 544. 160. A devise of the income of land for life is equivalent to a devise of the land for life. Reed v. Reed, 9 372; Blanchard i. Brooks, (12 P.) 29 47; Blanchard u. Blanchard, (1 A.) 83 223. 161. A devise without the word "heirs," or any words extending the interest beyond ffie devisee's life, or indicating an intent to give the devisee a power of disposition of the properly, passes a life estate only. Hatfield v. Sohier, 114 48. See, also, Cook «. Holmes, 11 528; Tartar c. Ayres, (5 P.) 22 404; Wait «. Bett- ing, (24 P.) 41 129. [See post, HI, (1).] 162. A will appointing A the testator's "heir, to the effect that " she shall have one quarter oi DEVISE AND BEQUEST, III, (1). 363 the estate, and that her portion "shall fall after her death" to persons named, and "shall be left behind " by her to those persons, gives A an estate in life in one quarter, with remainder to the persons named in fee. Sehmaunz v. G5ss, 132 141. 163. An express devise of an estate for life, with remainder over, will not be changed into an estate of inheritance by a power to dispose absolutely of the property by deed or by will. Hatfield v. Sobier, 114 48. See, also, Roberts v. Whiting, 16 186; Stevens v. Winship, (IP) 18 318; Lamed v. Bridge, (17 P.) 34 339; Paine?). Barnes, 100 470. 164. As to where such a power extends to the entire real property, see Roberts ». Whiting, 16 186. 165. Where property is devised and be- queathed for the support of the beneficiary, with power to use so much of the fund as may be necessary for the beneficiary's support, and a gift over of the residue, the beneficiary takes an estate for life, and the devise over is a con- tingent remainder. Bamforth «. Bamforth, 123 280; Johnson v. Battelle, 125 453. 166. Such a power authorizes the beneficiary to sell the real or personal property, and to use and consume the personal property, without any liability to account therefor. Lynde v. Estabrook, (7 A.) 89 68; Dodge v. Moore, 100 335; Warren i>. Gregg, 116 304. 167. Where property is devised absolutely, but with a gift over, if it remains " undisposed of" at the devisee's death, and the devisee con- veys it, reserving a life estate to herself, it is disposed of within the meaning of the will, and the donee over takes nothing. Perry v. Cross, 132 454. See, also, Taft v. Taft, 130 461. 168. A devise for life, either expressly or by implication, with a general power to sell, and a gift over if it is unexercised, enables the devisee to convey a good estate in fee simple, to the exclusion of the donee over. Harris v. Knapp, (21 P.) 38 412; Gifford v. Choate, 100 343; Hale v. Marsh, lOO 468; McCarty v. Cosgrove, 101 124; Cummings v. Shaw, 108 159; Lyon v. Marsh, 116 232; Gibbins t>. Shepard, 125 541. 169. So where the language will permit a disposition by will. Bowen v. Dean, 110 438. 170. An absolute gift of real property, with a power to dispose of it, and a gift over if the devisee does not dispose of it, contemplates a disposition either by deed or by will. Kimball v. Sullivan, 113 345. 171. But where the power is confined to a disposition by deed, if the devisee disposes of the property by will only, the gift over takes Smith v. Snow, 123 323. 172. And a power "to sell and convey" does not authorize a mortgage. Hoyt v. Jaques, 129 286. 173. A devise to a wife and daughter of the use of real property gives the survivor an estate for her own life. Jarvis ». Buttrick, (1 Met.) 42 480. 174. For other rulings respecting life estates, upon the peculiar phraseology of other wills of real property, see Claflin s. Perry, 12 425; Simonds v. Simonds, 112 157; Simonds v. Simonds, 121 191; Gibbins v. Shepard, 125 541; Sanford ». Sanford, 135 314; Pratt v. Alger, 136 550. 175. As to where a life estate is not invalid for remoteness. Pratt «. Alger, 136 550. 176. Where land is devised in trust to the separate use of a married woman, to be man- aged, etc., by her, and the income, or, if she requires it, the principal, to be paid to her, and, upon her husband's death, the whole property to be c. nveyed to her in fee simple, and upon her death to be conveyed to such persons as she may appoint, or, on her failure to appoint, to her children; the children, on the death of their mother, without having made an appointment, take as purchasers under the will, and not by descent from her. Hubbard «. Rawson, (4 G.) 70 242. 177. As to the effect of the rule in Shelley's case, and of the existing rule in this Common- wealth, see Bowers v. Porter, (4 P.) 21 198; White v. Woodberry, (9 P.) 26 136; Canedy v. Haskins, (13 Met.) 54 389; Brown v. Lawrence, (3 C.) 57 390; Wight tC Baury, (7 C. ) 61 105 ; Hayward v. Howe, (12 G.) 78 49; Goddard v. Whitney, 140 92. [See, a,lso,post. III, (5).l 178. A bequest of shares of stock, absolute in form, but with subsequent provisions that the legatee shall receive the income during life, and the principal is given over after his death, passes a legacy for life. Reed ». Head, (6 A.) 88 174. See, also, Homer®. Shelton, (2 Met.) 43 194; Barms ». Kirkland, (8 G.) 74 512. 179. A bequest for life, and then over, or a bequest of a sum, the interest to be paid to the legatee till her death, and then over, gives only the income during life. Saunder,son v. Stearns, 6 37; Field v. Hitchcock, (17 P.) 34 182. 180. Where a will gives a sum of money, and also real property, and then adds, "All the foregoing legacies to A. B., I give to him for his use only, during his natural life," the per- son named takes only a life interest in the pecu- niary legacy, and, semble, also in the realty. Browne v. Cogswell, (5 A.) 87 556. 181. A bequest to a widow, after two small legacies, of "all my real and personal estate, eic, as long as she shall remain unmarried and my widow," followed by a clause bequeathing to her, without restriction, "all my household furniture, wearing apparel, and all the rest and residue of my personal property," gives her absolutely; the furniture, wearing ap- parel, and similar unproductive personal prop- 364 DEVISE AND BEQUEST, III, (1). erty, but only the income of the productive personal property duiing her widowhood. Dole «. Johnson, (3 A.) 85 364. For other rulings upon similar bequests dur- ing widowhood, etc., see Andrews 1>. Cape Ann Bk., (3 A.) 85 313; Eogers v. American Board, etc., Mis- sions, (5 A.) 87 69; Smith v. Smith, (1 A.) 93 423; Jackson D.Jackson, (13 A.) 95 116. 182. A bequest "for the benefit of herself and children, in trust," gives the legatee the in- come for life, and the principal, after her death, is to be divided among her children. Rich o. Rogers, (14 G.) 80 174. 183 A will, giving the testator's widow " my personal property for her benefit and support, and the support of my son, while she remains unmarried," and "the improvement of my real estate, during the time she may remain my widow," gives her the personalty in trust during her widowhood, the income to be applied in equal proportions to the support of her son and herself, and an estate for life, without charges thereupon, in the realty. Loring «. Loring, lOO 340. 184. Where personal property is bequeathed to a person ' ' to hold for her own benefit as long as she lives, in a manner that shall be divided equally among the heirs at her decease," the legatee is entitled to the management of the property, in the absence of proof of danger that she will waste or secrete it. Johnson v. Gross, 128 433. See, as real property, Gibbins v. Shepard, 125 541. 185. For rulings construing the will of John E. Thayer, that the reference to the will in the codicil governed the provisions for daughters as well as sons; that the trustee could devote such portion of the income as was needed for the support and education of a daughter during minority; that the residue should be added to the principal; that after a daughter came of age she was not entitled to any portion of the accumulated income, or to have the trust ter- minated, but only to the income during life of the principal and accumulated income, with a power of .disposal by will among her issue, see Thayer v. Thayer, 129 189. 186. For rulings construing the will of Brad- ley Jones, that it created a trust in the money given to the use of his sister Sarah, and imposed upon the executor the duty of a trustee touch- ing the same; that the said Sarah was entitled to the income thereof during her life, and so much of the principal as might be needed for her support; and that her brother could not sus- tain his contention that he was entitled to the income, subject only to Sarah's needing assist- ance or coming to w#nt, see Coburn v. Anderson, 131 513. 187. For a ruling that the peculiar provisions of a will gave no power to the trustees to with- hold any portion of the income, and apply it to the increase of the principal, but only to regu- la'e and control the time and mode of payment of the income, in the exercise of which they were subject to the supervision of the court, see Williams v. Bradley, (3 A.) 85 270. 188. One absolutely entitled to the income of a fund under a will, may assign the income but not the principal. Palmer «. Stevens, (15 G.) 81 343 Aliter, as to an annuity, see post, III (» [For other rulings upon the question, whether an income is assignable and liable to the benefloinrvo debts, see Trust III, (80 J Brys 189. Where a testator directs his estate to be divided into shares, with directions to pay over the income, the income received by the execu- tors is to be disposed of in the same'manner as that afterwards received by the trustees. Williams ®. Bradley, (3 A.) 85 270. 190. Until division, each beneficiary is enti- tled to his proportion of the actual income. Lovering v. Minot, (9 C.) 63 151. 191. Where the will provides for the applica- tion of the income of a fund to the support of the beneficiary, any surplus not so applied be- longs to those for whose benefit it was received when it accrued. Amory v. Leland, (12 A.) 94 281. [See, further, as to accumulations of income. Trust, III, (2).] 192. Income, given by a will, begins to run from the testator's death, unless otherwise di- rGCtfid Lovering ». Minot, (9 C.) 63 151; Sargent «. Sargent, 103 297; Ayer t>. Ayer, 128 575; Cushing v, Burrell, 137 21. See, also, Lamb i). Lamb, (11 P.) 2 8 371; Minot «. Amory, (2 C.) 56 377; Minot B.Thompson, 106 583; Billings v. Billings, 110 225. 193. And where the fund is already invested, the whole of the next succeeding dividend or instalment of interest, after the testator's death, belongs to the person to whom the income is given. Sargent v. Sargent, 103 297., See, also, Wiggin i>. Swett, (6 Met.) 47 194. 194. And the rule yields to a different intent apparent in the will, as where a trust fund is established at a future period, and the income of that fund disposed of. Keith v. Copeland, 138 303. 195. Where a residue is given by a will to trustees, with directions to keep the same and its accumulations at interest, and pay over to the widow, during her life, such part of the income "as in her opinion she may need," or "may signify to them a desire to receive," with other general expressions, then directing the payment of an annuity of $500 to each of his children; this entitles the widow to the entire income, less perh ps the annuities, although her entire personal and household expenses do not exceed one fourth of it. Weston v. Jenkins, 128 562. 196. The income of real property, given by a will, is subject to deductions for taxes, repairs, and other current expenses. Watts v. Howard, (7 Met.) 48 478. [As to deduction from an annuity, see post, art. 2010 197 Aliter, if the will provides that such ex- penses are to be paid out of the estate; but sucn. a provision is limited to the life of the bene- ficiary. Richardson v. Hall, 124 228. DEVISE AND BEQUEST, m, (1), (2), (3). 365 198. A legatee, to whom is given the income of a certain sum to be invested by the executor, is entitled to the whole income; and the execu- tor's expenses, etc., in managing and investing it are to be paid out of the general estate. ' Brown 0. Kelsey, (2 0.) 56 243. 199. But under the peculiar phraseology of a particular will, it was held, that the legatee was entitled only to the income, less costs and charges of the trust, and subject to losses upon investments made bona fide. Clark *. Foster, (8 Met.) 49 568. [For additional rulings on the subject of income, see Income; Trust, III, (2); Til, (3).} C2.) Annuity. [See, also, ante, art. 195, and Tbust, III? IV.l 200. A bequest of the interest of a certain sum, not setting apart any fund for the pay- ment thereof, is a gift of an annuity equal to the interest of that sum, and is not chargeable with any tax, expense of management, or other deduction by the executor. Brimblecom«. Haven, (13 C.) 66 511. Bee, also, Swett «. Boston, (18 P.) 35 123. 201. The legatee of an annuity has no power to alienate any part of it by anticipation. Perkins 0. Hays, (3 G.) 69 405. 202. A bequest of an annuity "to be paid from the income of my property," with a resid- uary clause added, is a charge upon the whole estate; and if no trustee is appointed, and the gross income exceeds the annuity, the annuitant may recover it from an administrator de bonis mm with the will annexed, before settlement of the estate. Smith v. Fellows, 131 20. 203. Such a bequest is rather in the nature of a demonstrative legacy than a specific legacy, and the direction for payment out of the income does not make it contingent; it is payable out of the principal, if the income is inadequate. Smith v. Fellows, 131 20. See, also, Wilcox 0. Wilcox, (13 A.) 95 252; Warren v. Gregg, 1 16 304; Kichard- son i). Hall, 124 228. 204. This clause in a will, " I order that $500 per year, for ten years, be paid over to A," gives A an annuity for ten years, if he lives so long, if not, for his life; not a legacy of $5,000, payable in ten instalments. Bates v. Barry, 125 83. 205. Where payable only from income, it is apportionable. Bates v. Barry, 125 83. 206. In the absence of words of succession, an annuity dies with the annuitant. Bates v. Barry, 125 83; Weston 0. Weston, 125 268. 207. Where several annuities are payable, by the terms of the will, out of the income of a particular fund, and the contingency, upon which the fund is to be paid over, happens before all the annuities fall in, the capital must be resorted to for the purpose of paying the surviving annuitants, by purchasing such an- nuities, or reserving enough to meet them. Treadwell v. Cordis, (5 G.) 71 341. 208. Where the executor is directed to set apart a fund to produce a certain annual in- come, and to pay over the income to A for life, and the fund is set apart accordingly, with the acquiescence of all interested, the beneficiary is. entitled to the entire income, although it ex- ceeds the sum named. Bussell «. Loring, (3 A.) 85 121. 209. For rulings upon a will, directing the set- ting apart of a fund, of $200,000, the income of which was to be paid, to the widow, and, until it was set apart, an annuity of $10,000 was to be paid to her; where the estate was not sufficient, after payment of the specific legacies, to raise the fund of $200,000, but was sufficient to pur- chase an annuity of $10,000, see Hubbard v. Hubbard, (6 Met.) 47 50. 210. A direction to trustees, to whom the entire residuary estate is given by a will, to provide for the education of the testator's in- fant son, and, when he a. tains 21 years, to pay him $4,000 per year, followed by this clause, "when he shall be 25 years old, $6,000 per year, and $10,000 per year when he shall be 30 years old," does not cumulate the annuities, but substitutes one for the other, at the appointed times. Sears 0. Hardy, 120 524. 211. And, the estate amounting to $4,000,000, when the son reached twenty-one, and there being no gift over, the trustees were directed to pay him all the estate, less a sum sufficient to raise an annuity of $10,000. Sears 0. Hardy, 120 524. 212. Where a devise is made to a trustee for the use of children, the entire property being subject to an annuity in favor of the widow, and the personal property is insufficient to pay the annuity, the widow may maintain a bill in equity against the trustee for payment of her annuity. Walker 0. Whiting, (23 P.) 40 313. 213. An annuity given by will, payable quarterly, entitles the donee to receive the first payment at the end of three months after the testator's death. Wiggin 0. Swett, (6 Met.) 47 194. (3.) Estate tail. [See, also, Estate tail.] 2! 4. A devise to A " and his oldest male heir forever," gives an estate tail to A. ,_ Cuffee 0. Milk, (10 Met.) 51 366. 215. A devise to A for life, and after his, death to his eldest male heir, and upon the latter's decease to the male heir of such de- ceased, and his descendants forever, etc., givesi an estate tail to A. Malcolm 0. Malcolm, (3 C.) 57 472. 216. A devise to A and his children, he hav- ing no children, is equivalent to a devise to him and his issue, and passes an estate tail. Nightingale 0. Burrell, (15 P.) 32 104. 217. A devise to A and the heirs of his body, and to their heirs and assigns forever, gives A an estate tail. Buxton 0. TJxbridge, (10 Met.) 51 360 DEVISE AND BEQUEST, III, (3), (4). 87; Wight v. Thayer, (1 G.) 67 284. See, also, Hawley v. Northampton, 8 3. 218 A devise to A and his heirs, and if he dies without issue, then to B, gives A an estate tail by implication, with remainder to B. Hall «. Priest, (6 G.) 72 18. 219. So if the contingency is that he dies "without issue or heirs." Albee v. Carpenter, (12 C.) 66 382. 220. Such a provision means, that if the first devisee has issue, they shall take, and take in succession, so long as there shall be issue in the descending line, subject to be barred by a common recovery, or in Massachusetts, by a deed executed comformably to the statute. The words are not equivalent to dying without heirs of his body then living; but look to a general and indefinite failure of issue; and this implication converts into an estate tail, that which would otherwise have been an estate in fee Albee v. Carpenter, (12 C.) 66 382. See, also, Nightingale v. Burrell, (15 P.) 32 104; Hall v. Priest, (6 G.) 72 18; Brightman v. Brightman, lOO 238; Allen v. Ashley School Fund, 102 262. 221. But where the devise over clearly con- templates a definite failure of issue, the devise will be regarded as giving a life estate, and not an estate tail. Pratt v. Alger, 136 550. 222. A devise of land to be equally divided among three, with a subsequent provision that if one of them, designated, should die without issue, the property given to him shall descend to the testator's heirs in fee, gives that one an estate tail, not an estate for life. Hayward «. Howe, (12 G.) 78 49. 223. For additional illustrations of the appli- cation of these principles, see "Williams v. Hichborn, 4 189; Soule v. Soule, 5 61; Lithgow v. Kavenagh 9 161; Hulburt v. Emerson, 16 241 Adams v. Cruft, (14 P.) 31 16; Parker ■s. Parker, (5 Met.) 46 134; Wheatland «. Dodge, (10 Met.) 51 502; Terry v. Briggs, (12 Met.) 53 17; Canedy «. Haskins, (13 Met.) 54 389; Weld v. Williams, (13 Met.) 54 486; Wight «. Baury, (7 C.) 61 105; Perry v. Kline, (12 C.) 66 118; Hall v. Thayer, (5 G.) 71 523; Hall a. Priest, (6 G.) 72 18. (4.) Estate in fee simple; absolute legacy. I As to what language elves only an estate for life see. ante. III. (1); as to wEat language gives an estate tail see ante III. (3.)1 224. Even before the R. S., a devise without words of inheritance would pass a fee, if it was apparent, upon the whole will, that such was the testator's intent. Cook v. Holmes, 11 528; Bakers. Bridge, (12 P.) 29 27; Godfrey B.Hum- phrey, (18 P.) 35 537; Allen v. Hoyt, (5 Met.) 46 324; Plimpton ». Plimpton, (12 C.) 66 458. 225. Thus, a personal charge, as of mainte- nance, or of payment of money to others, would convert a devise, without words of inheritance, into a fee. Lithgow v. Kavenagh, 9 161- Cook v. Holmes, 11 528; Taft v. Morse (4 Met.) 45 523, Parkers, Parker, (5 Met) 46 134; Plimpton v. Plimpton. (12 o'{ 66 458. v ' 226. And the same inference might be drawn from extrinsic circumstances, as where wild land was devised, for a life estate in such land would be of no value. Sargent v. Towne,' 10 303; Ridgway v. Parker, 10 305 note. See, also Farrar 1>. Ayres, (5 P.) 22 404. 227. And where land was devised to one for life, and over to another, without words of inheritance or of limitation, this gave a fee to the latter. Plimpton v. Plimpton, (12 C.) 66 458. See, also, Baker «. Bridge, (12 P.) 29 21 228. A devise of all the residue of the tes- tator's real property passed a fee, although no words of inheritance or limitation were added. Parker v. Parker, (5 Met.) 46 134 229. And the same rule holds under the pres- ent statute. Willcut v. Calnan, 98 75; Lincoln s. Lincoln,, 107 590. 230. At common law, a devise of an "estate," where the word was used as a descriptive desig- nation of the land, and not of the devisors interest in the land, passed only an estate for life; but if the latter intent could be discovered in the will, it would prevail. Plimpton «. Plimpton, (12 C.) 66 458. 231. Such an intent was inferable from a general devise of all the testator's estate, or all his real estate. Brown v. Wood, 17 68; Godfreys. Humphrey, (18 P.) 35 537, Kellogg v. Blair, (6 Met.) 47 born, (3 C.) (9G.) 75 57 171. ; Tracy 0. Kil- 557; Lelaud v. Adams, 232. And this, although words of inheritance] were annexed to other devises. Leland v. Adams, (9 G.) 75 171. 233. And a devise to A, B, and C, "and if! either of them should die without children, the| survivor or survivors to hold his share," gave a fee simple to the devisees; and the survivors, on; the death of either, took by executory devise. Richardson v. Noyes, 2 56. 234. A devise to A, and the children born of her body, would give A and the children an estate in fee, there being nothing elsewhere to indicate an intent to give an estate tail. Amiable v. Patch, (3 P.) 20 360. 235. For other rulings before the B. S., see, as to a fee simple defeasible upon a contingency, Ray ». Enslin, 2 554; a fee simple with possession postponed Smithwick 0. Jordan, 15 113; a fee simple, although with words appropriate for the creation of a fee tail, Elweli 0. Pierson, Quincy, 42; Dudley 0. Dudley, Quincy, 12; Banister v. Henderson, Quincy, 119. 236. Under R. S., Ch. 62, §4; G. S., Ch. 92, § 5; P. S., Ch. 127, § 24, the intention of the testator to devise a less estate than a fee neett not be declared in express terms; it suffices 11 such an intention can be clearly and satisfac- torily inferred, from particular provisions incon- DEVISE AND BEQUEST, III, (4), (5). 367 sistent with an intent to give a fee, or from the general import, scheme, and object of the will. Pay v. Fay, (1 C.) 55 93; Hatfield v. Sohier, 114 48. 237. Where there is no other indication of such a contrary intent, except a restraint upon the alienation of the land, the devisee takes a fee, and the restraint is void. Gleason v. Fayerweather, (4 G.) 70 348. 238. Bo where words are used which are too indefinite to cut down an estate into a fee tail. Schmaunz v. Goss, 132 141. 239. Words, appropriate to give a fee simple, may he limited by subsequent words, but they ■will not he restricted unless by necessary impli- cation. Gifford v. Choate, 100 343. See, also, Hunt v. Hunt, (11 Met.) 52 88; Codman v. Coffin, (2 C.) 56 365; Bar- rett v. Marsh, 126 213. 240. For other rulings that devisees take a fee, since the statute, under the peculiar phrase- ology and provisions of particular wills, see Paine v. Prentis, (5 Met.) 46 396; Bacon v. Woodward, (12 G.) 78 376; Briggs . Shaw, (9 A.) 91 516; Ladd «. Whitney, 117 201; Grossman®. Field, 119 170; Schmaunz 0. Goss, 132 141; Petingell v. Boynton, 139 244. 241. Where the will read thus: "To my daughter A, I give my half of the farm, to- gether with produce, stock," etc., "thereon, and the rest and residue of all my property," etc., " for the support of my daughter 0, ex- cept the following legacies," it was held, that A took an estate in fee in the farm, produce, stock, etc., and that she took the residue in trust for 0. Buffinton 0. Maxam, 140 557. 242. A devise of " half a mile of the lower end of the beach, to be measured at high water mark for drift wood and timber of all sorts," in connection with Mother expressions, gives a fee in the half mile of beach, not a mere easement. Brown i>. Lakeman, (15 P.) 32 151; See, also, Lakeman v. Butler, (17 P.) 34 436. 243. A bequest of money on hand, family stores, and other articles which will be con- sumed in the use thereof, is absolute, and a limi- tation over of so much thereof as shall remain at the legatee's death, is repugnant and void. Merrill v. Emery, (10 P.) 27 507. 244. Semble, however, that it would not be void, if any of the articles remained in such a condition that they could be distinguished and identified. Dorr 0. Wainwright, (13 P.) 30 328. 245. And a bequest over of personal property, given to another generally, is good, if the lega- tee dies before the testator. Burbank 0. Whitney, (24 P.) 41 146. 246. A clause in a will, allowing a legatee to cjispose of furniture, pictures, etc., as he may deem expedient, ' ' in accordance with my wishes as otherwise communicated," makes the bequest absolute, although the will contains a previous residuary clause, with remainder over. Wells v. Doane, (3 G.) 69 201 247. Words, which would create an estate tail' in a devise of real property, give the first taker an absolute estate in personal property, and any remainder over is void. Albee v. Carpenter, (12 C.) 66 382. See, also, Adams «. Cruft, (14 P.) 31 16. 248. In the cases where a gift over of per- sonal estate has been maintained, it is where the gift to the first taker does not, by the terms of the bequest, exceed a gift for life. Albee v. Carpenter, (12 C.) 66 382. See, also, Ellis v. Merrimack Bridge, (2 P.) 19 243; Homer v, Shelton, (2 Met.) 43 194. 249. And precatory or indefinite words, as to the ultimate disposition of the property, wiH not convert an absolute gift of either real or personal property into a mere life estate. Davis 1). Mailey, 134 588. See, also, Dole v. Johnson, (3 A.) 85 364; Mc- Kim «. Harwood, 129 75. 250. This rule extends even to a case where the gift is of the "use, income, and improve- ment" of the property. Chase 0. Chase, 132 473. 251. A devise to the testator's wife, " and, in case of her death, to her heirs and assigns for- ever," with a provision that if the testator has children, they are to share alike with her, passes a fee, if the testator dies childless. Brown v. Merrill, 131 324. 252. Where personal property is bequeathed by words apt to create an absolute gift, the effect is not limited by special provisions as to the legatee's power to dispose of it. Forbes v. Lothrop, 137 523. 253. Prima facie, an additional legacy, given by a codicil, is attended with the same incidents and qualities as the original legacy. Tilden 0. Tilden, (13 G.) 79 103; Brown 0. Brown, 137 539. 254. But where a legacy was given in trust for children, it was held, such appearing to be the intention, that a subsequent legacy to them was absolute. Brown 0. Brown, 137 539. 255. For a ruling, that a trust estate did not include certain land, and that a gift thereof in fee to children was not controlled by subsequent articles of the will, see Parker v. Iasigi, 138 416. (5.) Shares; tenancy, joint, in common, or several. 256. The following bequest of the residue of the estate of a testator, having seven children: " To each of my children, to be divided among them, as follows: to H." (husband of a daughter) "and T., his wife, one share, on account of "kindness etc., received from them; to W. " (another son-in-law) "andL., his wife, one share, on account of" kindness, etc.; "and to each of my other children, one share," requires a division into seven shares, not three. Wright 0. Gilson, (7 Met.) 48 135. 257. A bequest of a residue, "to be equally divided among my brothers and sisters, and their issue by fight of representation, except one seventh part, which is to be teld in trust by my 3GS DEVISE AND BEQUEST, III, (5). executors for my brother A, he to receive the interest,' etc., and at his death to be divided among the others (there being four other living brothers and sisters and issue of two deceased), gives in trust for A one seventh only, and no part of the other six sevenths. Baxter v. Baxter, 122 87. 358. A bequest of a sum of money, to be di- vided equally among persons named, is a sepa- rate bequest of a proportionate part to each; and a joint action for the whole will not lie. Whiting v. Cook, (8 A.) 90 63. 259. A devise of " one half of a farm on the northwesterly side thereof" to A, and of "the other half " to B, is a devise of different parts of the farm to each in severalty; and one has no interest in the other's portion. Nye ». Drake, (9 P.) 26 35. 260. A devise in these words, " to enable my executor and executrix to pay this legacy," (a legacy to a charitable society), "I give unto them, or either of them, forever, a lot of land," (describing it), with a provision added that the lot was to go to the society unless the legacy was paid in a year, vests the fee in the two per- sons named, upon payment by the legacy by either, in severalty, not jointly or in common; and this, although they were husband and wife, and the wife did not qualify. Popkin «. Sargent, (10 C.) 64 327. 261. A devise to a daughter of " the right to reside in, and use, and occupy, as heretofore accustomed, my present dwelling," gives her the exclusive occupation of the house, not an undivided interest, or a right to occupy a por- tion only, if the size, arrangement, etc., of the Bouse are such, that the occupation by her of a part only ; would be incompatible with the oc- cupation to which she was accustomed during the testator's life. Whiting v. Whiting, (15 G.) 81 503. 262. For a ruling, that under tne peculiar phraseology of a will, the distribution of the estate was not to be postponed until the deaths of the testator's widow and all his children, and that the heirs of a deceased son were entitied to the share set apart for him, see Fabens v. Fabens, 141 395. 263. For rulings, that the provision "tne is- sue of any deceased daughter shall take the mother's share," simply makes a sub-class of such issue, and puts them in their mother's place; that a direction to pay income " to all my daughters in equal shares," merely deter- mines the proportions in which the income is to be divided, and is a gift to them as a class, so that if a daughter dies unmarried, the sur- vivors take the whole income; and that, con- sidering the whole will, no part of the principal was to be distributed, until the death of the sur- vivor of the daughters, see Dove v. Johnson, 141 287. 264. A gift to A and B, of the sum of $2,000 each they not being children of the testator, is a gift to each, not to them as a class, and if one dies before the testator, his legacy lapses. Claflin v. Tilton, 141 343. 265. The construction of provisions in a will, relating to the division of property into shares, depends in each case upon the peculiar phrase- ology used, and the intention of the testator as deduced therefrom, and from all the other parte of the will. This principle stated, and applied to particular wills, in Dalton v. Savage, (9 Met.) 50 28' Baker ». Baker, (8 G.) 74 101; Grave' Sherman, (5 A.) 87 198: Weld v. Barnes" (9 A.) 91 145; Valentine v. Borden' 100 273; Cook v. Smith, 101 341- Johnson v. Goss, 128 433; Claflin t' Ashton, 128 441; Ellis v. Fairbanks 132 485; Wells v. Williams, 13^ 333; Goddard v. Whitney, 140 92. I For similar cases arising upon deeds, etc., of trust see Trust, III.l * 266. UnderSt, 1785, Ch. 62, § 4;(seeP. S., Ch. 126, §§ 5, 6,) devisees under a will made before its passage would take in common, no vested right having accrued by survivorship before the act. Annable n. Patch, (3 P.) 20 360. 267. The intensives " clearly and manifestly," as used in the R. S. (omitted now), had no well defined or precise effect in the construction of wills; the statute did not require an express declaration, as it does now; and the intention was deducible or inferable from given premises, Brimmer v. Sohier, (1 C.) 55 118. 268. A devise to A and B, with a proviso that if either of them shall make any claim against the estate, he shall have no right under the will, passes the estate as tenants in common, hy virtue of the statute; and on a breach by either, his share descends to the testator's heirs. Sackett ®. Mallory, (1 Met.) 42 355. 269. A devise of a remainder to the testator's children, " to them and their heirs and assigns forever in fee," to wit, one third to a daughter named; one th'rd to the children of his deceased daughter P., " and the survivor and survivors of them;" and one third to "the children, and survivor or survivors of them" of his daughter L. , gives the children vested remainders as joint tenants at the decedent's death, the words being apt to create a joint tenancy, and — other intent being apparent in the wdl. Stimpson «. Batterman, (5 C.) 59 153. 270. But a devise of a residue "to the sur- vivors of my brothers and sisters," naming them, was a devise in common to such as might survive the deceased, not a devise upon a con- tingency to the two out of the three who might survive. Brimmer a, Sohier, (1 C.) 55 118. 271. Under a devise of one fifth of all the testator's real property to A and her children, she then having children, A and her children take one fifth as tenants in common. Allen v. Hoyt, (5 Met.) 46 324. 272. See further, as to the construction of devises, with respeet to the creation of a joint tenancy or a tenancv in common, Walker v. Dewing, (8 P.) 25 520: Emerson v. Cutler, (14 P.) 31 108 Brown v. Bailey, (1 Met.) 42 254 Winslow », Goodwin, (7 Met.) 48 *» Tillinghast v. Cook, (9 Met.) 50 1« Blanchard v. Blanchard, (1 A.) 83 ii6 Loring v. Coolidge, 99 191; Rhodes t. Rhodes, 137 343. DEVISE AND BEQUEST, III, (6). 369 (6.) Vested and contingent remainders, and like equitable interests, and inter- ests In personalty. I See, also, post III, (7); Perpetuity; Trust, m, (3).l 273. It is a settled rule of law, that a gift shall not be deemed an executory devise, if it is capable of taking effect as a remainder; and it is equally well settled that no remainder will be construed to be contingent, which may, con- sistently with the intention, be deemed vested. Blanchard v. Blanchard, (1 A.) 83 223. See, also, Dingley «. Dingley, 5 535; Shattuck e. Stedman, (2 P.) 19 468; Blanchard e. Brooks, (13 P.) 29 47. Eldridge v. Eldridge, (9 C.) 63 516, and post, arts. 300, 301. 274. So a legacy is deemed to be vested and not contingent, if it can be so decreed, consist- ently with the apparent intention. Thus a legacy, payable at a fixed time after the testa- tor's decease, is a vested legacy. Goddard v. Johnson, (14 P.) 31 352. 275. A legacy payable if the legatee attains a certain age, and given over if he dies bef ore,_ is a vested legacy, determinable upon a contin- gency. Cowdin e. Perry, (11 P.) 28 503. See, also, Furness e. Fox, (1 C.) 55 134; Eldridge «. Eldridge, (9 C.) 63 516; Fuller v. Winthrop, (3 A.) 85 51. 276. Vested remainders are strongly favored, but they always yield where a contrary intent is to be gathered from a fair construction of the entire will. Knowltone. Sanderson, 141 323. 277. For a ruling that a fund, given in trust to pay over the income to a grandson, during his father's life, and, if he should die before his father, to hold it during the latter's life, and then pay it over to the grandson's heirs, did not vest in the father upon the grandson's death, without issue, see Knowlton «. Sanderson, 141 323. 278. A devise, given over upon a contin- gency, gives a vested estate, determinable upon the contingency. Packard e. Packard, (16 P.) 33 191. 279. "Where a legacy is payable in successive annual instalments, it vests at once, and if the legatee dies before all are paid, his executor may recover those unpaid, as they mature. Bowker v. Bowker, (9 C.) 63 519; Adams e. Adams, (14 A.) 96 65. 280. Upon the question whether a devise or a legacy, to take effect in possession or enjoy- ment at a future day, or upon a contingency, is vested or contingent, either the fact that there is a devise or bequest over, or the fact that in the meantime the beneficiary was to have the benefit of the income, is a strong, if not con- clusive indication, that it is vested. Eldridge e. Eldridge. (9 C.) 63 516; White v. Curtis, (12 G.) 78 54; Fuller v. Winthrop. (3 A.) 85 51; Holden v. Blaney, 119 421. 281. Where land is devised, with remainder over, upon an occurrence which is certain to happen, ex. gr., the expiration of a term, or the Vol. I-hL7 death of the first taker, the devisees over take a vested remainder; and if they constitute a class, the remainder vests in those who are of the class, when the testator dies, so that the heirs or next of kin of any who subsequently die, take when the contingency happens. Dingley v. Dingley, 5 535; Ballard v. Ballard, (18 P.) 35 41. Merriam t. Simonds, 121 198. See, also, Bates v. Webb, 8 458; Whitney «. Whitney. 14 88; Shattuck v. Stedman. (2 P.) 19 468: Bowers e. Porter. (4 P.) 21 198; Blanchard e. Brooks. (13 P.) 29 47; Nash v. Cutler, (16 P.) 33 491; Halle. Tufts, (18 P.) 35 455; Russell t>. Hoar, (3 Met.) 44 187; Winslow ». Goodwin, (7 Met.) 48 363, Childs v. Russell, (i 1 Met.) 52 16; Wight v. Shaw, (5 C.) 59 56; Stimpson e. Batterman, (5 C.) 59 153; Eldridge t>. Eldridge, (9 C.) 63 516; Faye. Sylvester, (2G.) 68 171; Barton e. Bigelow, (4 G.) 70 353; Kuhn v. Webster, (12 G.) 78 3; Blanchard v, Blanchard, (1 A.) 83 223; Abbott v. Bradstreet, (3 A.) 85 587; Houghton e. Kendall, (7 A.) 89 72; Bowditch v. Andrew, (8 A.) 90 339; Lane e. Lane, (8 A.) 90 350; Pike «. Stephenson, 99 188; Gardiner i>. Guild, 106 25; Hill «. Bacon, 106 578; Darling v. Blan chard, 109 176; Wilmarth v. Bridges, 113 407; Kimball v. Tilton, 118 311; Weston e. Weston, 125 268; Schmaunz v. Goss, 132 141. See, also, the cases cited in the next article. 282. Where the class which thus takes a vested remainder, consists of all the children of a per- son living when the remainder vests, it vests in those then in esse, subject, from time to time, to open and let in after born children. Dingley v. Dingley, 5 535; Denny e. Allen, (IP.) 18 147; Annable v. Patch, (3 P.) 20 360; Ballard v. Ballard, (18 P.) 35 41; Weston e. Foster, (7 Met.) 48 297; Hubbard e. Lloyd, (6 C.) 60 523; Moore e. Weaver, (16 G.) 82 305, Hatfield e. Sohier, 114 48; Gibbens v. Gibbens, 140 102. 283. The vesting of a remainder is not pre- vented by a provision, that if. when the first es- tate falls in. any of the remaindermen have died, leaving issue, the issue shall take the pa- rpiit's sh&rG Hill e. Bacon, 106 578; Kimball v. Tilton, 118 311. See, also, Butterfield e. Hamant, 105 338. 284. The rule that those take, who constitute the class at the testator's death, is liable to be varied by the manifestation of a different intent. Merriam e. Simonds, 121 198. 285. Where the gift over of the remainder is dependent upon a contingency, the will gives a contingent remainder. Dixon v. Picket, (10 P.) 27 517; Olney ». Hull, (21 P.) 38 311; Rich e. Waters. (22 P.) 39 563; Richardson e. Wheatland, (7 Met) 48 169;Amory«. Leland, (12 A.) 94 281; Putm.m e. Gleason, 99 454; Thomson e. Luding- ton 104 193; Johnson e. Battelle, 125 453; Gibbins v. Shepard, 125 541; Weston «. Jenkins, 128 562. 370 DEVISE AND BEQUEST, III, (6), (7). 286. As where there is a devise over if the devisee is living, when the first estate falls in. Bamforth v. Bamforth, 123 280; Denny v. Kettell, 135 138. See, also, Hancock v. Hancock, (14 P.) 31 70. 287. Thus a devise and bequest, authorizing the taker of a life estate to dispose of the prop- erty, and giving over what remains undisposed of, gives the remainderman a contingent re- mainder. Lyon ». Marsh, 116 232; Bamforth v. Bamforth, 123 280; Smith v. Snow, 123 323; Taft v. Taft, 130 461. 288. But such a devise over is repugnant and void, if the property is given absolutely to the first taker. Ide v. Ide, 5 500; Burbank v. Whit- ney, (24 P.) 41 146; Kelley v. Meins, 135 231; Damrelln. Hartt, 137 218. 289. For additional rulings upon the question whether an interest devised was a contingent remainder, see Olney D.Hull, (21 P.) 38 311; Thom- son v. Ludington, 104 193; Smith v. Rice, 130 441; Denny*. Kettell, 135 138; Colby v. Duncan, 139 398. 290. Where a vested remainder in realty or a vested interest in personalty is given, subject to be divested upon the happening of a con- tingency, the first legatee is entitled, in the absence of other directions, to the income accruing until the contingency happens. Teele v. Hathaway, 129 164; Hooper v. Bradbury, 133 303; Wright v. White, 136 470. See, also, Amory v. Leland, (12 A.) 94 281. 291. A devise of land, or a bequest of an equitable interest in a trust fund, to a man for his life, and after his death to such of his child- ren as survive him, gives the children a vested interest in a contingent remainder, which is assignable. Nash v. Nash, (12 A.) 94 345; Dunn v. Sargent, 101 336; Belcher v. Bur- nett, 126 230; Putnam v. Story, 132 205. See, also, Winslow ». Goodwin, (7 Met.) 48 363; Teele e. Hathaway, 129 164. 292. And the fact, that the life tenant has a conditional power of disposition, does not affect the vesting of the interests in possession, sub- ject to be defeated by the exercise of the power. Whipple*. Pairchild, 139 262. 293. A bequest to the children of B equally, when they attain the age of 25 years, includes all born before either attains that age, but not one born afterwards. Hubbard v. Lloyd, (6 C.) 60 522. 294. As to the construction of a will, exclud- ing a child born after a year from the testator's death. Worcester v. Worcester, 101 128. 295. Where the income of certain property is given to the testator's widow "to be for her support and the support of my children," and the income of other property is given to her absolutely, the former income is received by her on a trust, and the children have a vested beneficial interest in it. Proctor v. Proctor, 141 165. 296. Unless otherwise provided by the terms of the will, a remainder, in either real ror per- sonal property, will pass by transfer or by will Dalton «. Savage, (9 Met.) 50 2ft' Fay i). Sylvester, (2 G.) 68 171; Kim' ball*. Tilton, 118 811. 297. Under St. 1868, Ch. 287; P. S., Ch. 120 §§ 1 9 to 21 , a sale will not be directed, where the will, after a devise of the real property to chil- dren, in apt words to create a fee, contains a proviso that a child who has no lawful issue, shall hold his portion for life, and on his death it shall be divided equally among the grand- children. There being such children, sembk, that this creates a qualified fee, determinable upon dying without issue, and a good title can- not be made. Symmes v. Moulton, 120 343. See also, Whitcomb v. Taylor, 122 243. 298. For other rulings under this statute, see Bamforth «. Bamforth, 123 280. (7.) Executory devise. [For other cases bearing on this subject, see, ante, ni, (3) ; III, (4) ; and in, (6.)] 299. It is of the essence of an executory de- vise, that it cannot be barred or cut off by any mode of alienation whatever. Nightingale*. Burrell, (15 P.) 32 104; Hall v. Priest, (6 G.) 72 18; Kelley!). Meins, 135 231. 300. Executory devises are not favored; they were originally created and upheld only so that devises should not fail, which, consistently with the rules of law, could not take effect as re' mainders. Nightingale «. Burrell, (15 P.) 32 104; Hall d. Priest, (6 G.) 72 18. 301. Accordingly, wherever a future interest devised can, consistently with the rules of law, take effect as a remainder, it will be construed to be a remainder, not an executory devise. Hawley v. Northampton, 8 3; Night- ingale®. Burrell, (15 P.) 32 104; Parker ■o. Parker, (5 Met.) 46 134; Hall it. Priest, (6G.) 72 18. See, also, ante, art. 273. 302. There are two kinds of executory de- vises; one, where an estate is devised to one, to be determined and to pass to another upon a future event, the other where the estate is limited to commence in future, contrary to the rules of the common law. In the latter case, the iee remains meanwhile in the devisor's heir. Nightingale v. Burrell, (15 P.) 32 104, 303. An estate in fee, limited after an estate tail, is a remainder, and not an executory devise. Hall v. Priest, (6 G.) 72 18. 304. And a devise to one and his heirs, and if he dies without issue, to another, creates an estate tail in the first devisee, with remainder over to the second. Hall v. Priest, (6 G.) 72 18. 305. Held, however, that a devise to A, B, and C, and if either dies without children, tne survivor to take his share, gives a iee»pft and on the death of either without children tne survivors take by executory devise. DEVISE AND BEQUEST, III, (7), (8). 371 Richardson v. Noyes, 2 56. See, also, Hawley v. Northampton, 8 3. 306. An executory devise must vest within the time fixed for avoiding a perpetuity. Nightingale «. Burroll, (15 P.) 32 104; Brattle Sq. Church «. Grant, (3 G.) 69 142; Sears v. Putnam, 102 5. [Sec, also. Perpetuity.] 307. For rulings, applying these principles to the phraseology of particular wills, see Richardson v. Noyes, 2 56; Annable v. Patch, (8 P.) 20 360; Ferson i>. Dodge, (23 P.) 40 287; Holm v. Low, (4 Met.) 45 190; Brightman v. Bright- man, 100 238; Symmes ■». Moulton, 120 343;Schmaunz».Goss, 132 141. (8.) Conditions; charges; gifts for sup- port. [See. also. Condition. 1 308. Where a devisee has power to sell upon a contingency, the power cannot be exercised until the contingency happens; but such a power, dependent upon the pleasure of the devisee, gives a fee upon the happening of the contingency. Minot v. Prescott, 14 495; Stevens®. Winship, (1 P.) 18 318. 309. An instrument may be made to take effect as a will upon a contingency named in it; and the happening of the contingency can be ascertained when the will is offered for pro- hate. Damon v. Damon, (8 A.) 90 192. 310. "Where, however, a will recited that the testator was about to go upon a certain voyage, and the first clause gave a bequest if he did not return, which was followed by other bequests, not mentioning that condition, and he did return, the will was admitted to probate, the condition being applicable only to the first bequest. Damon v. Damon, (8 A.) 90 192 311. A direction in a will that the legatee shall maintain the testator, is not a condition. Colwell «. Alger, (5 G.) 71 67. 312. So a devise, "in consideration" of the testator's being supported, etc., is not a devise on condition, and a failure of the " considera- tion " will not defeat the devise. Martin e. Martin, 131 547. 313. Where a will, after making certain be- quests to legatees named, added, " I appoint A trustee to take and kcop the above legacies, the income of which he shall appropriate to their comfort, so long as thoy live. After their de- cease, what remains I bequeath to the above trustee;" the gift of the remainder is condi- tional on A's accepting the trust, and fails if he dies, after probate, without accepting the trust, although before the executor has settled the estate. Kirkland v. Narramore, 105 31; Barrus v. Kirkland, (8 G.) 74 512, ex- plained in this case. 314. Where real property is devised upon condition of payment of a legacy, the precise legacy must be demanded, before the land is forfeited. Bradstreet v. Clark, (21 P.) 38 389. 315. A legacy to a Unitarian religious society, ' ' so long as they maintain their present essential doctrines," etc., is forfeited by a change to Trinitarian doctrines, etc. Princeton v. Adams, (10 C.) 64 129. 316. A devise to one in whose family the tes- tatrix resided, with words showing that it was given in return for his and his wife's kindness, etc., is forfeited by his commencing a suit for the testatrix's board; but a residuary bequest, without such words, is not forfeited thereby. Hapgood v. Houghton, (22 P.) 39 480. 317. And the forfeiture of a particular devise, with a condition annexed, does not forfeit a residuary legacy without the condition. Ward v. Ward, (15 P.) 32 511. 318. A bequest on condition of a discharge of all claims against the testator's estate, calls for a discharge of the right to redeem mortgaged property, and its acceptance prevents the legatee from maintaining a bill for that purpose Hyde«. Baldwin, (17 P.) 34 303. 319. A devise to trustees, giving the testator's children the use and improvement of the land, as long as they were industrious and economi- cal, is a devise upon a condition subsequent; and upon proof that one of them is not so, he is no longer entitled to possession. Root «. Yeomans, (15 P.) 32 488. 320. A devise of land, " so as it has been im- proved by my tenants for many years," refers to the extent of the property, and does r.ot pre- vent the devisee from carrying up the walls of one of the buildings, although he thereby dark- ens the windows of another devisee. Howard v. James, 2 394. 321. A devise upon condition that the devisee shall comply with the terms of "this will," prima facie requires also a compliance with the terms of a codicil. Tilden v. Tilden, (13 G.) 79 103. 322. A devise to A, upon condition of sup- porting B during her life, with a devise over after her death, in case of failure to fulfil, gives A an estate in fee upon that condition, and upon fulfilment, the devise over becomes inope- TfltlVP Bradford o. Perkins, (23 P.) 40 183; See, also, Putnam o. Emerson, (7 Met.) 48 330. 323. A devise of the residue of the testator's estate to his executor, on condition that he should support the testator's daughter, is a leg- acy to the daughter, for which she may main- tain an action against the executor, or the ad- ■ ministrator de bonis non, having assets. Farwell v. Jacobs, 4 634; Baker v. Dodge, (2 P.) 19 619; Wood v. Barstow, (10 P.) 27 368; Pinkerton v. Sargent, 112 110. 324. For other rulings, relating to devises and bequests upon particular conditions, see Hayden v. Stoughton, (5 P.) 22 528; Wood v. Barstow, (10 P.) 27 368; Wright v. Barrett, a3 P.) 30 41; Si- monds 0. Simonds, (3 Met.) 44 558; Tilden v. Tilden, (13 G.) 79 103; Noble ii. Phelps, (1 A.) 83 430; Nudd v. Powers, 136 273 372 DEVISE AND BEQUEST, III, (8). 325. Where a pecuniary legacy is given, and a further bequest is made of support out of the estate, oral evidence of the testator's intent, that the legatee should not have the pecuniary legacy, if she has the means of support, is inadmissible; and she may claim maintenance wherever she reasonably chooses to reside. Crocker «. Crocker, (11 P.) 28 252. See, also, Conkey v. Everett, (11- G.) 77 95. 326. But where, upon the whole will, and the surrounding circumstances, it is manifest that the testator contemplated that the beneficiary should receive her support at the homestead, or other particular place, she cannot claim it else- where. Parker v. Parker, 126 433. 327. The general rule is, that one who is to be supported under a provision in a will, or a deed, is not limited to live in a particular place, and this, although income is given to the widow for the children's support. Proctor v. Proctor, 141 165. 328. The fact, that the legatee owns a small amount of property, is immaterial in determin- ing what she is entitled to receive, under a be- quest of a good and comfortable support and maintenance, etc. Conant v. Stratton, 107 474. 329. Or that she has been accustomed and Is able to labor. Conkey v. Everett, (11 G.) 77 95. 330. Such a bequest includes a proper supply of fuel, and keeping the house in comfortable condition. Conant «. Stratton, 107 474. 331. A bequest of a certain sum per year "for spending money, if she should need it and call for it," renders her call conclusive; and she may call in one year for a balance uncalled for in a former year. Conant «. Stratton, 107 474. 332. For a ruling, that under a provision in a will for the support of a son and his family, the executor was authorized and required to hire a house, Or, if necessary, to build a house, and purchase suitable furniture. Kingsbury v. Gould, (9 Met.) 50 282. 333. For a ruling, that under a trust in a will for the support of a son, it was not the duty of, the trustee to provide for his support while he was confined in a jail or housa of correction. Worcester*. Chapin, (10 Met.) 51 188. 334. Wh.re a trust fund is created for the support of a person out of the income, the trustee is not authorized to break in upon the capital for the purpose, even with the con- sent of the immediate devisee over, if there are subsequent remainders over. Longley v. Hall, (11 P.) 28 120. 335. A bequest of a sum to trustees to be ap- plied by them to the support of a daughter and her family, and upon her death to distribute the fund, "or what remains of it," to her child- ren, gives the trustees a discretion in the dis- bursement of the fund, so far that they are not bound to furnish the entire support of the daughter and her family, without regard to her husband's earnings. Kilburn v. Hosmer, (10 C.) 64 146. 336 For a ruling, that peculiar provisions in a will authorized the trustees to appropriate part of the income, given for the benefit of a, son and his children, to the children respect- ively; that this appropriation was not limited to their being under age, or living with their father; and that the income was not to be with- held from tin m, in consequence of the payment of a gross sum, which the will directed should be paid on their marriage or coming of age, but might be continued afterwards, in the dV cretion of the trustees. Sargent v. Bourne, (6 Met.) 47 32. [For other rulings as to gifts of income, see ante III, (1); III, (6).l 337. As to the persons included in a gift for the support of the " family" of a person desig- nated, see Bowditch v. Andrew, (8 A.) 90 339; Bates v. Dewson, 128 334; Bradlee v. Andrews, 137 50. 338. Under a devise of a fund in trust for the maintenance and education of two minor child- ren of the testator, each child is entitled to share equally in the fund, without regard to their different needs. Jones «. Foote, 137 543 339. A gift of an annuity, payable out of the rents of certain property, is not charged upon the fee of the land, unless a different intent i» manifest. Kudd v. Powers, 136 273. 340. And such a gift is not charged upon the person of the devisee, except as expressed in th* will itself. Nudd v. Powers, 136 273. 341. But where a devise is conditioned upon payment of a gift to another, the devisee, by accepting the devise, makes himself personally liable to pay the gift. Amherst College v. Smith, 134 543; Nudd v. Powers, 136 273. 342. Where an annuity is given out of rent* and profits, they are applicable during the an- nuitant's life to make up arrears. Nudd v. Powers, 136 273. 343. Where a gift is charged either upon the- rents and profits, or upon the corpus of real property, a purchaser holds the land subject to the same charge. Thayer «. Finnegan, 134 62; Am- herst College v. Smith, 134 543; Nudd «. Powers, 136 273. See, also, An- drews v. Sparhawk, (13 P.) 30 393; Goodrich v. Proctor, (1 G.) 67 567. 344. The purchaser cannot insist upon the legatee proceeding first upon the executors bond, although one of them was the devisee. Amherst College v. Smith, 134 543. 345. Stumble, that where the devisee is ap- pointed executor, and is expressly directed to pay legacies, that makes the legacies a charge- upon the land. Thayer z. Finnegan, 134 62. 346. Semite, also, that such a direction charges the land, although he is not appointed executor. Thayer v. Finnegan, 134 62. 347. A legatee, whose legacy is charged upon, land, is not precluded from an action against the executor, and a remedy upon the executors DEVISE AND BEQUEST, III, (8); IV. 373 bond; but if the latter course is pursued, the sureties are entitled to be subrogated to his rieht to hold the land. S Sheldon o. Purple, (15 P.) 32 528; Johnson v. Bartiett, (17 P.) 34 477; Thayer ». Finnegan, 134 63. 348. But where the will, upon considering all its provisions, manifests an intent that the leg- atee should look only to the land, he is confined to his remedy against the devisee.' Henry t>! Barrett, (6 A.) 88 500; Frampton v. Blume, 129 152. 349. A purchaser, with notice, of land charged with a legacy, is personally liable at law or in equity to the legatee, and such liability is not discharged by alienation. Swasey ®. Little, (7 P.) 24 296; Felch e. Taylor, (13 P.) 30 133; Sheldon «. Purple, (15 P.) 32 528; Taft i>. Morse, (4 Met.) 45 523; Sherman v. Sherman, (4 A.) 86 392; Adams «. Adams, (14 A.) 96 65. 350. But a bona fide purchaser of land, charged generally with debts and legacies, is not responsible for the application of the pur- chase money to them. Andrews B.Sparhawk, (13 P.) 30 393. 351. Under a will, directing payment of the testator's debts, bequeathing the residue of his personal property absolutely to his wife, and devising Ms real property to his wife during widowhood, with remainder to his children, a note given for the purchase of real property, and secured by a mortgage thereupon, is not a charge upon the land, but is payable from the personalty, unless the creditor elects to resort to the mortgage. Hewes».Dehon,(3G.) 69 205. See, also, Andrews v. Bishop, (5 A.) 87 490. 352. For other rulings, relating to charges created by the terms of particular wills, see Eichards v. Merrill, (13 P.) 30 405 Sheldon v. Purple, (15 P.). 32 528 Boardman v. Boardman, (4 A.) 86 179 Sherman v. Sherman, (4 A.) 86 392 Fearing v. Swift, 97 413; Damon ®. Bibber, 135 458. [See, also, Annuity; and ante, II, (2).1 IV. Abatement and Contribution. [As to the general principle that personalty is to be first applied to the payment of debts and legacies, and the right to resort to the real property lor that purpose, see Executor and Administrator, VII, (1). As to when legacies or devises are specific, ?t 5 general, and when demonstrative, see ante, 353. Where the testator's estate is insufficient for the payment of debts, expenses, and legacies, and there are both general and specific devises and legacies, the general legacies and devises must first be used for the payment of debts, before resorting to the specific legacies and devises, even if they are thus entirely abated. Towle v. Swasey, 106 100; Farnum «. Bascom, 122 282. _ 354. "Where an abatement is necessary, there is no difference between devises and bequests; all abate proportionately and together, in the class to which they belong. Farnum v. Bascom, 122 282. See, also, Hubbell v. Hubbell, (9 P.) 26 561; Emerson v. Cutler, (14 P.) 31 108. 355. Where a class of legacies or devises must abate, those legatees or devisees who are not purely beneficiaries, but who, in consideration of the gifts to them, have relinquished or are to relinquish some valuable right, are treated as quasi purchasers, and the gifts to them will not abate, until those of the mere beneficiaries are exhausted. Farnum v. Bascom, 122 282. 356. Thus, where a devise or legacy is in lieu of dower or a tenancy by the curtesy, or where, by the acceptance of the legacy, the dowress lost her dower, she is not deemed a mere bene' ficiary, even as against a child. Pollard v. Pollard, (1 A.) 83 490; Towle v. Swasey, 106 100; Farnum i>. Bascom, 122 282; Richardson v. Hall, 124 228. See, also, Hubbard «. Hub- bard, (6 Met.) 47 50. 357. Near relationship, including that of parent and child, or dependence, or other meri- torious character of the beneficiary, will not exempt him from abatement with the others of his class, if the will affords no proof of an in- tention to prefer. Pollard v. Pollard, (1 A.) 83 490; Towle v. Swasey, 106 100; Farnum v. Bascom, 122 282; Richardson «. Hall, 124 228. 358. Where the will gives a pecuniary legacy to the testator's widow, and she accepts the provision, a specific gift of personalty, or of land, if the personalty is insufficient, to others, must abate in favor of the legacy to the widow, if the abatement of general legacies is insuffi- cient for the purpose. Borden v. Jenks, 140 562. 359. But where the contingency of a de- ficiency has been anticipated and provided for by the testator, his directions will govern. Towle v. Swasey, 106 100;Chapin». Waters, 116 140; McLeans. Robertson, 126 537. 360. But a direction to pay legacies out of the personalty will not exonerate the realty, if the personalty is insufficient. Wilcox «. Wilcox, (13 A.) 95 252. 361. For instances of the application of these principles of abatement, see the cases above cited, and Nash v. Cutler, (19 P.) 36 67; Wash- burn v. Bewail, (4 Met.) 45 63; Ban- croft v. Bancroft, 104 226. 362. Where there is not enough personalty to pay pecuniary legacies, the real property de- vised by a residuary clause must be resorted to for the purpose. Wilcox v. Wilcox, (13 A.) 95 252. 363. But not real property specifically de- vised. Humes v. Wood, (8 P.) 25 478; Hub- bell ii. Hubbell, (9 P.) 26 561. 364. Where a will devised certain property to the testator's son A, upon condition "that he shall pay one half of my just debts, his brother B to pay the other half;" and then devised property to B, and appointed A and B his 374 DEVISE AND BEQUEST, IV; V. executors, B is bound to pay one half of a note given by the testator to A; and A may maintain a bill in equity to compel him to do so. Smith v. Smith, (1 A.) 83 129. 365. Under St. 1783, Ch. 24, § 18, a devisee, whose land has been taken for debts of the tes- tator, may call upon a co-devisee for contribu- tion, without first obtaining a decree of the pro- bate court for apportionment. . Brigden v. Cheever, 10 450. S66. Before G. S., Ch. 92, §§ 33 et seq.; P. S., Ch. 127, §§ 31 et seq., he could not call upon a co-devisee to make up for a loss by the insolv- ency of another. Brigden v. Cheever, lO 450. 367. Residuary devisees are not entitled to contribution from specific devisees, for that part of the property which has been taken by the widow, waiving the provisions of the will and claiming her legal rights. Blaney v. Blaney, (1 C.) 55 107; Webster v. Webster, 105 538. 368. For other rulings, as to contribution under the former statute, see Wyman v. Brigden, 4 150; Paine v. GUI, 13 367; Blaney v. Blaney, (1 C.) 55 107. V. Revocation; Ademption; Renuncia- tion ; Lapse. t As to ademption by advancement, see Advance- ment. As to revocation of a will, see Will, I, (3).] 369. A sale of real property devised, is a re- vocation pro tanto only. ♦ Hewes ». Humphrey, (9 P.) 26 350; Terry . Gillott, 123 102. 374. Where a will gave the residue of the testator's property to trustees for the benefit of four nephews; and in- a codicil the testator stated, " I hereby revoke so much of my will as relates to my nephew L. , and make no pro- vision for him," the codicil excludes L. from all participation in the residue, and the trug. tees take it for the benefit of the other three Towne «. Weston, 132 513. 375. Where a will devised real property in trust, to pay the testator's son the income of $4,000 for life, and to his son's wife for life if she survived him; and by a codicil he increased the sum to $10,000, and added, "so that he shall have the income of $10,000 during his life, the principal sum, on his decease, to lapse into the residue of my estate;" the codicil re- vokes the bequest to the wife. Crafts v. Hunnewell, 129 220. 376. For other rulings, upon the effect of re- vocations of devises in wills, and the effect of a codicil, as a revocation of a devise in the will or another eodicil, see . Brown v. Lawrence, (3 C.) 57 390; Quincy v. Rogers, (9 0) 63 291; Web- ster ». Webster, 105 538; Bradlee ft Andrews, 137 50. 377. A specific legacy is adeemed where the testator has collected the debt, or disposed of the chattel; but in the case of a general legacy, intent is of the essence of ademption. White v. Winchester, (6 P.) 23 43; Richards e. Humphreys, (15 P.) 32 133. 378. So as to an advancement, the question is merely one of intent. Panie v. Parsons, (14 P.) 31 318. 379. A devisee is presumed to assent to bene- ficial provisions, unless he renounces the devise, which he may do, by any acts manifesting suck an intent, unless, perhaps, as to creditors. Wells v. Prince, 9 508; Stebbins v. Lathrop, (4 P.) 21 33; Ward e. Ward, (15 P.) 32 511. 380. An infant is presumed to assent to a de- vise for its benefit. Paine v. Prentiss, (5 Met.) 46 396. 381. Neither the testator's wife nor his_ step- son is a "relation" of the testator, within R. S., Ch. 62. § 24; G. S., Ch. 92, § 28; P. S., Ch. 127, § 23, saving devises and legacies from laps- ing, if the devisee or legatee dies before the testator, leaving issue surviving the testator. Esty v. Clark, lOl 36; Kimball «. Story, 108 382. 382. And it makes no difference that the step- son is styled in the will the testator's son. ffimball v. Story, 108 382. 383. Before St. 1783, Ch. 24, § 8, continued by R. S., Ch. 62, § 24, a devise to A, in trust for P. (a niece), and her heirs and assigns for- ever, would have lapsed by P.'s death, leaving a child surviving the testator, although it pro- vided for payment of the income to P. during life. Paine «. Prentiss, (5 Met.) 46 396. 384. The R. S. saved such a devise, although the interest was equitable, but the child is sub- stituted as the devisee, and the trust discharged. Paine v. Prentiss, (5 Met.) 46 396. 385. Since the R. S., there has been no dis- tinction in this respect between devises and Be- quests, and the issue take as the devisee or leg- atee would have taken if he had survived. Moore v. Weaver, (16 G.) 82 SUB. Thayer v. Wellington, (9 A.) 91 »>• DEVISE AND BEQUEST, V; VI. 375 386. The statute does not save the devise or leeacv to the father of the devisee. Fisher ». Hill, 7 86; Ballard v. Bal- lard, (18 P.) ■ 35 41. 387. And in a case not within the statute, a residuary devise or bequest lapses, as formerly. Kimball v. Story, 108 382. 388. A bequest in trust for a servant during life, "to revert to his family on his decease," doe's not lapse by the servant's death before the testator, but goes to his widow and child in equal proportions; a stepson being excluded. Bates v. Dewson, 128 334 389. Where a bequest is made to individuals by name, although they constitute a class, each takes severally; and, in a case not within the statute, the share of one dying before the testa- tor, becomes intestate property; but if it ap- pears, from the whole will, that the testator intended them to take as a class, such a share goes to the survivors. Jackson «. Roberts, (14 G.) 80 546; Schaffer v. Kettell, (14 A.) 96 528; Towne v. Weston, 132 513. See, also, Hooper v. Hooper, (9 C.) 63 122; So- hier «. Inches, (12 a.) 78 385; Work- man v. Workman, (2 A.) 84 472; Lom- bard «. Boyden, (5 A.) 87 249; Stedman «. Priest, 103 293; Goddard v. May, 109 468; TJpham t>. Emerson, 119 509. 390. Thus wheje a will gives A and B two thousand dollars each, they being brother and sister, but not the testator's children, if one dies before the testator, his or her legacy lapses. Claflin v. Tilton, 141 343. 391. And where, after the death of one of the class, the testator, by a codicil, revoked "the legacy given to him, he being since de- ceased," the share of the deceased does not go to the survivors, but becomes unbequeathed property. Smith ». Haynes, 111 346. 392. Where a will directed the executor to procure a residence for the testator's married daughter, and hold the same in trust for her and her son during their lives, and " upon the decease of both," gave the property over; and, the daughter having died, the testator made a codicil, reciting her death, and increasing a be- quest to her husband, and expressly confirming the will; the gift did not lapse by the daughter's death, but went to the son for life. Dow v. Doyle, 103 489. 393. A legacy, given over on the death of the first legatee, does not lapse by the latter's death during the testator's life, but vests in the second legatee; but if he also dies before the testator, it lapses and falls into the residue. Prescott v. Prescott, (7 Met.) 48 141. 394. A general residuary bequest or devise carries all lapsed and void legacies and devises. Carpenter v. Heard, (14 P.) 31 449; Thayer s. Wellington, (9 A.) 91 283; Allen v. White, 97 504; Bigelow v. Gillott, 123 102;Lovering'». Lovering, 129 97. 395. The waiver by the testator's widow, of the provisions of a will in her favor, annuls only those provisions in which she has a per- sonal interest; it may diminish the residue of the estate out of which the legatees are to be paid, but it does not revoke or affect the other bequests, which are to be carried into effect as far as practicable. Brandenburg ». Thorndike, 139 102. See, also, Firth v. Denny, (2 A.) 84 468; Plympton ®. Plympton, (6 A.) 88 178. VI. Satisfaction; Interest: Remedies. [As to the remedy of a legatee whose legacy is charged upon property, see ante. III, (8).l 396. A legatee for life of personal property is entitled to possession thereof, and the court will not require security from him, unless special cause therefor is shown. Homer v. Shelton, (2 Met.) 43 194. See, also, Andrews v. Hunneman, (6 P ) 2,3 126; Hall v. Burgess, (5 G.) 71 12; Gifford v. Choate, lOO 343; Mc- Carty «. Cosgrove, lOl 124; Schmaunz v. GOss, 132 141. So as to the guardian of an infant legatee for life. Howland v. Howland, 100 222. 397. So of money. Fiske ». Cobb, (6 G.) 72 144. See, also, Kuhn v. Webster, (12 G.) 78 3; Taggard v. Piper, 118 315; Quigley ». Gridley, 132 35. 398. Under the statute, a debt due torn a legatee to the testator but barred by the statute of limitations, cannot be deducted from a pecuniary legacy, unless the will shows such an intent. Allen v. Edwards, 136 138. 399. Where the debt is not thus barred, it may be deducted and set off in an action. Blackler v. Boott, 114 24. 400. Where there is not enough to pay all, if a legatee accepts a dividend ordered by the judge of probate, he is concluded, although his legacy is specific, and he cannot recover the balance. Sheple v. Farnswortn, 4 632. 401. In this Commonwealth, a legacy consti- tutes a contract, which the law implies. ' Allen v. Edwards, 136 138. 402. An action at law lies in this Common- wealth against an executor or administrator to recover a legacy. Farwell v. Jacobs, 4 » 634; Miles v. Boyden, (3 P.) 20 213; Jones v. Rich- ardson, (5 Met.) 46 247; Colwell v. Alger, (5 G.) 7 1 67; Pollard e. Pollard, (1 A.) 83 490; Pinkerton v. Sargent, 112 110; Allen v. Edwards, 13G 138. 403. Where the legacy is of specific chattels, the damages are the value of the chattels, and interest from demand. Colwell e. Alger, (5 G.) 71 67. 404. A residuary legatee cannot maintain an action until the estate is settled, and four years for the presentation of, claims have expired. White ». Webster, (13 P.) 30 374. 405. But if all the debts are paid, and suf- ficient assets remain, it is not necessary to wait 376 DEVISE AND BEQUEST, VI— DISCHARGE. two years after the administrator's bond was given. Brooks v. Lynde, (7 A.) 89 64. 406. An executor and residuary legatee, who gives a bond to pay debts and legacies, conclu- sively admits assets. Colwell ». Alger, (5 G.) 71 67. [See Executor, etc., II, (3); II, (4).l 407. The statute of limitations is no defence, as long as the executor holds the assets. Kent v. Dunham, 106 586. 408. As to cases where it is a defence. Andrews*. Sparhawk, (13 P.) 30 393; Kingman v. Kingman, 121 349. 409. The fact that the debts have not been paid is no defence, if there are sufficient assets. Kent v. Dunham, 106 586. 410. An action for a legacy will not lie against an executor or administrator, without a previous demand. Prescott v. Parker, 14 438; Miles v. Boyden, (3 P.) 20 313. 411. But demand also of the surety is not necessary, where he is sued. Wood «. Barstow, (10 P.) 27 368 413. If an executor, being applied to by a father for payment of a legacy to his infant child, refuses on the ground that the child has no claim, he cannot object that the father had no right to receive the legacy. Miles v. Boyden, (3 P.) 20 313. 413. A demand by overseers of the poor to whom an annuitant had applied for relief, will enable the annuitant to maintain an action against the purchaser of land, charged with payment of the annuity. Sheldon ». Purple, (15 P.) 32 538. 414. It was said, that a vested legacy carries interest only from the time when it is payable, unless it was given to an infant, whom the testator was bound to support, and for whom no provision was made, until the legacy became payable. Dawes ». Swan, 4 315. 415. A direction in a will, that " after settling my estate, my wife have the interest of my personal estate," carries interest on the re- siduum from the testator's death, not merely from the settlement of the estate, and post- pones the payment of the pecuniary legacies, until her right to the interest shall terminate. Lamb v. Lamb, (11 P.) 28 371. 416. A pecuniary legacy carries interest from the time when it is due by law, or by the terms of the will, although the executor has not then assets, and no demand has been made. Kent v. Dunham, 106 586. Ex- plaining Miles ». Boyden, (3 P.) 20 313. 417. Where an annuitant died within a year a year after the testator, interest upon the amount due at her death was allowed from the expiration of the year. Kent ». Dunham, 106 586. 418. The time when interest begins to run is not postponed, by a direction in the will to pay the legacy "next after my lawful debts," or " as soon as the same can conveniently be dona without sacrifice." Kent v. Dunham, 106 586. 419. That an infant legatee has no guardian is no reason for disallowing interest, unless the executor has paid the money into court, or has been prevented from paying the legacy for want of a guardian. Kent «. Dunham, 106 586. 430. Rests will allowed upon computation of interest on the balance due upon a legacy. Miller v. Congdon, (14 G.) 80 lit 431. Or when the executor has charged him- self with the money, but has not invested it, as directed by the will. Eliott v. Sparrell, 114 404. 433. Interest was not allowed on devises to children, payable when they attained 21 and 26 years, where the personalty was insufficient to pay debts, and the proceeds of the lands sold for that purpose were paid to them. Merritt D.Richardson, (14 A.) 96 239. 433. Interest on a legacy, in lieu of dower, is payable from the testator's death, if no other means are provided for the widow's support. Pollard v. Pollard, (1 A.) 83 490. 434. For a case where a charitable legacy was directed to be paid without interest, after a compromise of a litigation thereupon, see Lincoln v. Wood, 128 203. 425. For a special case, where a widow was allowed interest only on the balance in an ad- ministrator's hands, see White v. Sawyer, (13 Met.) 54 846. 436. A devisee, molested by a creditor of the testator, may have an action against the execu- tor, if he has been guilty of unfaithful admin- istration, or he may have contribution from the other devisees and legatees. Wyman v. Brigden, 4 150. 437. Where the intent of the testator, in making a devise or legacy, cannot be otherwise carried into effect, the court will appoint a trustee to take and administer the fund. Quigley v. Gridley, 132 35. Devisees and legatees. [Liability for debts, see Devise and Bequest, IV; Hints, etc., II.] Digging. [See Land Ownre.1 Dighton Bridge. [See Bridge, art. 14.1 Discharge. [See Bankruptcy. II. (6); Insolvent, Tin; Poor Debtok, III. (4); Release.] DISCONTINUANCE. 377 Discontinuance; dismissal; nonsuit. [As to a nonsuit at the trial, see, also, Trial, II, (4). Generally, see, also, Judgment.] 1. In an action at law, the plaintiff has an unqualified right to become nonsuit, or to dis- continue at any time before the trial has be- gun; and the discontinuance does not prevent a new suit. Haskell v. Whitney, 12 47; Truro i>. Atkins, 122 418; Kempton ». Burgess; 136 192. See, also, Turner v. Bissell, (14 P.) 31 193; Goward «. Dunbar, (4 C.) 58 500; Jewett v. Locke, (6 G.) 72 233. . 2. And this is so, although the defence Is ■usury, and the defendant in his answer claims judgment for threefold the amount of unlaw- ful interest taken. Burbank v. "Woodward, 124 357. 3. But after a declaration in set off has been filed, the plaintiff cannot discontinue without ' Cains v. Tirrell, 112 22. 4 Substantially the same rule prevails in equity as at law, where no other person but the plaintiff is interested in maintaining the bill: in such a case it is a matter of course to permit the plaintiff to dismiss the bill, on payment of costs, at any time before the hearing. Kempton v. Burgess, 136 192. 5. In such a case, the dismissal is not a bar to another bill; but it is the usual practice to dis- miss without prejudice. Bigelow v. "Winsor, (1 G.) 67 299; Kempton «. Burgess, 136 192. 6. So at the hearing, if the plaintiff is not ready, he may have the bill dismissed upon mo- tion, and if he does not so move, the defendant cannot have a decree on the merits, but only a dismissal for want of prosecution, which is not a bar to a new bill. Foote «. Gibbs, (1 G.) 67 412; Kemp- ton v. Burgess, 136^192. * 7. But where the bill is in behalf of others as well as the plaintiff, the latter cannot discon- tinue without leave. Atlas Bk. v. Kahant'Bk.7(23 P.) ?40 480. ' 8. After writ of error, and the sending down of a rescript thereupon, affirming the judgment of the superior court in favor of the plaintiff, that court may allow the plaintiff to discon- tinue as to one defendant, and take judgment againstthe others; and the exercise of such power is discretionary and not reviewable. Gray v. Cook, 135 189. See, also, Lowell v. Merrimack M. Co., (11 G.) 77 382. ' 9. In an action upon a joint contract, where one of the defendants pleads infancy, the plaint- iff may enter a nolle prosequi as to him, and proceed against the others. Woodward v. Newhall, (1 P.) 18 500. 10. In trespass against two, where the jury found that the defendants were joint trespassers m entering the plaintiff's close for the purpose or division or partition, and that after partition each committed a distinct act of trespass, it was Mia, that the plaintiff might enter a nolle prose- Vol. I — is qui as to one, and take judgment against the other, or have nominal damages against both. Bosworth v. Sturtevant, (2 O.) 56 392. 11. Any one of two or more plaintiffs may release a personal action, or become nonsuit, but the others may maintain an action against him for so doing. Wilson «. Mower, 5 407. 12. Where an action is brought in (he name of several plaintiffs, if some who have not assented refuse to prosecute, and become non- suit, they are not liable to the others; but if all have assented, and some unreasonably consent to a nonsuit, they are ljable to the others for the expenses of the suit, and the costs of the defendant. Wilson ®. Mower, 5 407. 13. After the trial has begun, and at any time before final judgment, the court may permit the plaintiff to discontinue, and its decision thereupon is not reviewable. Haskell v. Whitney, 12 47; Locke «. Wood, 16 317; Somes v. Skinner, 16 348; Gray v. Cook, 135 189. 14. But after a cause is opened to the jury, either party may insist on a verdict, unless the court, in its discretion, allows a nonsuit or discontinuance. Truro v. Atkins, 122 418. See, also, Means «. Welles, (12 Met.) 53 356; Shaw «. Boland, (15 G.) 81 571. 15. It rests with the selectmen of a town to determine whether an. action, commenced in their name, shall be discontinued, although other inhabitants move for leave to come in and prosecute it. Mears v. Boston, etc., Railroad, (5 G.) 71 371. . 16. Before St. 1880, Ch. 141; P. S., Ch. 49, § 108, the petitioner to revise the assessment of land damages, had an unqualified right to dis- continue his petition, and accept the commis- sioners' award. Fall River Railroad*. Chase, 125 483. 17. If the plaintiff has had leave to discon- tinue as to one defendant, and to amend accord- ingly, and discontinues without amending his declaration, that is no reason for granting a new trial, after verdict against the other de- fendant. Hawkes v. Davenport, (5 A.) 87 390. 18. Under the former system of pleading, a refusal by the plaintiff to add the similiter was a discontinuance. Earle v. Hall, (22 P.) 39 102. 19. So was his demurring or replying to a plea, which answered only part of the decla- ration, without taking judgment for the part not answered. Parker v. Parker, (17 P.) 34 236; Earle v. Hall, (22 P.) 39 102. See, however, Frost v. Hammatt, (11 P.) 28 70. 20. A mis-entry of a bastardy cause at a civil term was a discontinuance before St. 1851, Ch. 96, but not if the respondent appeared gener- ally. Hyde «. Chapin, (6 C.) 60 64. 21. Where the cause was entered, and con- tinued for several terms, and the plaintiff, in 378 DISCONTINUANCE— DISTEIOT-ATTOENEY. consequence of the loss of the writ, moved to withdraw the action from the docket, it was held that this was a discontinuance, within the statute giving costs on a discontinuance. Gilbreth v. Brown, 15 178. 22. After answer on the merits, the defendant cannot object that no declaration was inserted in the writ, or filed before the return day, but is deemed to have waived his right to treat the action as discontinued. Clark v. Montague, (1 G.) 67 446. 23. Where one of two plaintiffs, who were formerly partners, agreed to discontinue the ac- tion, and the other made an affidavit that the t agreement was collusive, the court refused to order a nonsuit. Loring ». Brackett, (3 P.) 20 403. 24. A motion for a nonsuit, which has been overruled, may be renewed at a subsequent term. Stern . Oaks, 113 8; Comm. v. Hopkins, 133 381. See, also, Comm. e. Davenport, (2 A.) 84 299. 2. A married woman may be convicted of keeping a disorderly house, if she acts of her own free will, without coercion by her husband. Comm. ■». Hopkins, 133 381. [See, also. Husband and Wife, Vn.] 3. It is no variance, upon an indictment for keeping a disorderly house, that the defendant kept only one story in the building. Comm. v. Bulman, 118 456. 4. And an indictment for keeping a " disor- derly tenement " charges no offence known to the law. Comm. ■o. Wise, HO 181. 5. Upon the trial of an indictment for keep- ing a disorderly house, the landlord's testimony that he found the doors broken open is admis- sible. Comm v. O'Brien, (8 G.) 74 487. 6. But evidence of disturbance in the high- way, at a distance, and not in the defendant's presence, is inadmissible. Comm. i>. Davenport, (2 A.) 84 299. 7. It is admissible, however, if the disturbers were seen going in and out of the house. Comm. v. Davenpon, (2 A.) 84 299 8. Evidence that the defendant kept a dance hall, frequented by lewd women, who solicited men while there, suffices to convict. Comm. v. Cardoze, 119 310, 9. Or that his house was a common resort for thieves, drunkards, and prostitutes, till late hours of the night. Comm. •». Cobb, 120 856. 10. The jury must be satisfied that the de- fendant had wholly or' partly the control and management of the house. Comm. v. Cobb, 120 356. Disorderly person. [See Idle, etc, Person.! statutory proceed- Dispossession, ings for. [See Forcible Entry, etc, I : Landlord asd Tenant, VII, (4); Mortgage, V, (6).] . Disseisin. [See Adverse Possession; Forcible Entry ahd Detainer; Prescription; Seisin.] Distress. [See Taxation, VII, (2).] Distribution. [See Descent and Distribution; Executor, etc, VII, (2).] District-attorney. [See, also, Attorney-General ; Office asd Officer.] 1. As to the power of the Commonwealth's attorney for Suffolk county, to represent the Commonwealth, in a suit for damages, for land taken by a railroad company in another county, see _. Comm. v. Boston & M. Railroad, (3 U) 57 25. 2. The statute allowing the court to appoint a substitute, in the absence of the district-attor- ney or attorney-general, extends to a case where the office is vacant. Comm. •». King, (8 G.) 74 501. 3. A disinterested counsellor, appointed for the purpose by the court, may conduct a , tru* in behalf of the Commonwealth, althougn me district-attorney is in court. „, Comm V Conn. R. Railroad, (15 W 81 447. DISTRICT-ATTORNEY— DIVORCE, I. 379 4. The court in which an indictment is pending may, in a particular case, appoint a counsellor to assist the district-attorney or attorney-general upon the trial; and the whole matter is, "to a large degree," within "the sound discretion " of the court. Comm. v. Scott, 123 222. See, also, Comm. e. Knapp, (10 P.) 27 477; Comm. «. Williams, (2 C.) 56 582; Comm. v. Wilson, (2 C.) 56 590; Comm. «. Gibbs, (4 G.) 70 146; Comm. v. King, (8 G.) 74 501. 5. In such a case, the appointment must be made at the public prosecutor's request; and the control and direction of the cause must be with the public prosecutor. Comm. v. Williams, (2 C.) 56 582; Comm. v. Scott, 123 222. 6. Qu,., whether the person so appointed can receive compensation from any private person. Comm. «. Williams, (2 C.) 56 582; Comm. v. Scott, 123 222. See, also, Comm. v. Knapp, (10 P.) 27 477; Comm. v. Gibbs, (4 G.) 70 146. 7. It is no objection to the counsellor thus appointed in an arson cause, that he conducted the prosecution before the magistrate, and was clerk of a fire inquest upon the building. Comm. v. King, (8 G.) 74 501. 8. But it is a ground of exception that he was counsel on tfie trial of a civil action, de- pending upon the same questions of fact. Comm. 1>. Gibbs, (4 G.) 70 146. [As to the district-attorney's fees in liquor cases, see Intoxicating Liquors, VII.] District court. LSee Courts ; Police Court.] District court of the United States. 1. The United States district court, sitting as a court of admiralty, is a court of record. Brown e. Bridge, 106 563. LSee, also, Jurisdiction, II.] Disturbance of meeting. LSee, also. Camp Meeting; Indictment, VIII, (25).] 1. The statute against disturbing "a school or other assembly of people, met for a lawful purpose," G. S., Ch. 185, § 23; P. S., Ch. 207, § 23, extends to a public meeting for the dis- cussion of temperance. Comm. v. Porter, (1 G.) 67 476. 2. SemMe, that it extends to political meetings, and meetings for amusement, or any other lawful purpose. Comm. «. Porter, (1 G.) 67 476. 3. What is such a disturbance depends upon the facts in each particular case; it must be wil- ful and designed. Comm. v. Porter, (1 G.) 67 476. 4. Such a disturbance is indictable at com- mon law. Comm. v. Hoxey, 16 385. Ditch. [See Easement; Meadow; Water Courge, III.] Dividend. ]See Bankruptcy, II, (3) ; Corporation, III, (3); Ihcomb; Insolvent. VI, (4).] Divorce. I. Jurisdiction. II. Causes for Divorce. (1.) General rules; recrimination; condona- tion; insanity. (2.) Adultery. (3.) Desertion. (4.) Cruelty; cruel and abusive treatment, etc. (5.) Intoxication; impotency. m. Proceedings and Practice generally- IV. Alimony, and other Allowances to the Wipe. V. Decree, and Effect thereof. (1.) General rules. (2.) Vacating the decree. (3.) Decree nisi. (4.) Remarriage. LAs to the validity of a marriage, and annulling an invalid marriage, see Husband and Wife, I. As to questions arising upon foreign divorces and mar- riages, see Conflict of Laws, III, (5). Generally, see, also. Adultery; Bastard; Criminal Con- versation; Descent and Distribution; Domicil; Dower; Homestead.] I. Jurisdiction. IAs to foreign divorces, see Conflict of Laws, III, (5).] 1. Our courts have jurisdiction of a libel for divorce, brought by the wife against the hus- band, where the plaintiff has, since the occur- rence, removed to another state, the defendant retaining his domicil here. Greene «. Greene, (11 P.) 28 410; Burlen v. Shannon, 115 438; Sewallfl. Sewall, 122 156; Watkins v. Watkins, 135 83. 2. As to the rule under former statutes. Hopkins v. Hopkins, 3 158; Carter «. Carter, 6 263; Brett v. Brett, (5 Met.) 46 233. 3. And our courts have jurisdiction of a dbel brought by a husband residing' in another state, for an adultery within this Commonwealth, where both parties then resided, and the wife has still remained here. Watkins v. Watkins, 135 83. 4. But they have no jurisdiction where the parties have removed from this Commonwealth, 380 DIVOKCE, I; H, (1). to another state, where the occurrence took place, although the wife has since returned here. Harteau v. Harteau, (14 P.) 31 181. 5. It is no objection to the jurisdiction that the occurrence took place in another state. Shaw v. Shaw, 98 158. 6. And where it took place in another state, through which the parties passed, while travel- ling to change their residence, and the wife, the injured party, left the husband and returned here, our courts have jurisdiction. Shaw ®. Shaw, 98 158. 7. Generally, the domicil of the wife follows that of the husband. Greene «. Greene, (11 P.) 28 410; Harteau v. Harteau, (14 P.) 31 181; Brett v. Brett, (5 Met.) 46 233; Sewall f>. Sewall, 122 156. [For additional rulings respecting domlcn, see that title.! 8. The expression "lived together," in the statute, G. S., Ch., 107, § 12; P. S., Ch.146, § 4, means that the parties must have had a domicil here. Boss v. Ross 103 575; Pansier v. Pansier, 103 577, note. 9. Proof that parties, married in another state, have lived at the same time within this Com- monwealth, but without matrimonial inter- course here, is not proof that they have lived together here, within the statute. Schrow v. Schrow. 103 574 10. But the provision that a divorce snail not be granted, if the parties have never "lived together " here, does not apply where the parties were married here, and have since remained here, although without any matrimonial inter- course. Eaton d. Eaton 122 276. 11. The legislature nas no constitutional power to grant a divorce; or to enact that prior decrees of divorce a mensa shall be deemed to be absolute divorces. Sparhawk v. Sparhawk, 116 315. II. Causes of Divorce. (1.) General rules ; recrimination; con- donation; Insanity. 12. Adultery, and, under certain defined circumstances, intoxication, desertion, cruelty, refusal to support, and conviction and sentence for crime, are all put upon the same footing, by s'atute, as matrimonial offences for which a divorce may be granted. Cumming v. Cumming, 135 386. 13. The statutes of this Commonwealth recognize no distinction between the husband and the wife, in respect to the gravity of marital offences, considered as grounds of divorce. Cumming v. Cumming, 135 386. 14. Recrimination, as a bar to a divorce, is not limited to a charge of the same nature as that alleged in the libel. Cumming v. Cumming, 135 386 15. And a suitor for divorce cannot prevail if open to a valid charge of any matrimonial offence of equal grade under the statute. Hanay «. Handy, 124 394; Cuin. ming v. Cumming, 135 386, 16. "Where a wife has deserted her hus- band for five years, she cannot mainlain a libel against him on the ground of adultery, after the lapse of the five year.,; but she may for an adultery within the five years, and nice iena Hall v. Hall, (4 A.) 86 39; Clapp'j Clapp, 97 531. vv 17. As to the general principles regulating condonation of adultery, and the effect thereof in the absence of a statute, see Cumming v. Cumming, 135 386. 18. Where the wife has committed adultery and confessed it to her husband, and he has forgiven her, and they have lived together for several years afterwards, she may maintain a libel for adultery committed by him affer such cohabitation. Cumming v. Cumming, 135 386. 19. Condonation by a wife of cruelty is on the implied, if not express, condition, that she shall be thereafter treated kindly; and a breach of that condition will revive the right to main- tain a libel for the original offence, although it consists of conduct which alone would not sus- tain a libel. Robbins v. Robbins, 100 150. See, also. Perkins v. Perkins, 6 69 20. So mere harshness or rudeness may suf fice to revive condoned cruelty. Robbins ». Robbins, 100 150. See, also, Gardner v. Gardner, (2 G.) 68 434. 21. As to the revival of a condoned adultery by another adultery, Sewall v. Sewall, 122 156. , 22. On the trial of a wife s libel, for neglect to support her, evidence in behalf of the re- spondent of condoned acts of the libellant, which, if they had occurred after the condona- tion, would not bar the libel, is inadmissible. French v. French, (14 G.) 80 186. 23. Cohabitation for one night after cruelty by the husband is not condonation, if the hus- band subsequently gives the wife reasonable apprehension of further cruelty. Gardner ». Gardner, (2 G.) 68 4S4. 24. For rulings as to the sufficiency of evi- dence of condonation, see North c. North, 5 320; Perkins «. Perkins, 6 69; Anonymous, 6 147; Rogers v. Rogers, 122 423; Maglathlin •o. Maglathlin, 138 299. 25. A delay of twenty-two years in commenc- ing proceedings, and cohabitation during the first eighteen years thereof, is no defence to a libel for divorce on the ground of adultery, if, during the entire cohabitation, the plaintiff was ignorant of the act, and it does not appear when, during the ensuing four years, it came to his knowledge. Clark ii. Clark, 97 331. 26. A libel for divorce cannot be maintained for an act committed while the libellee was insane; and upon a suggestion of insanity, the DIVOECE, II, (1), (2), (3). 381 court would formerly permit counsel to plead in the respondent's name. Broadstreet v. Broadstreet, 7 474. 27. But now the court will not proceed further without the appointment of a guardian. Mansfield «. Mansfield, 13 412; Little v. Little, (13 G.) 79 264; Denny v. Denny, (8 A.) 90 811. 28. A divorce may he granted upon the peti- tion of the guardian of an insane person, although the object is to cut off the defendant's interest in the insane person's property. Cowan «. Cowan, 139 377. See, also, Garnett «. Garnett, 114 379. 29. As to the proceedings where both parties were insane, when a petition was filed for an absolute divorce, upon which, a divorce nisi was granted while they were sane. Garnett J). Garnett, 114 379. 30. The finding of a judge upon a question of fact in a divorce cause will not he revised by the full court, either on appeal or on report. Sparhawk e. Sparhawk, 120 390; Stuart v. Stuart, 123 370; Morrison v. Morrison, 136 310; Maglathlins.Mag- lathlin, 138 299. (2.) Adultery. [See, also, Adui/tery.] 81. A libel for a divorce cannot be maintained on the ground of an adultery connived at by the libellant, although he connived at it for the purpose of procuring the divorce. Pierce D.Pierce, (3 P.) 20 299; Cairns v. Cairns, 109 408; Morrison v. Morri- son 136 310. 32. But a scheme to detect a wife suspected of adultery is not a connivance, although the particular act would not have harroened but for the scheme. Bobbins v. Robbins, 140 528. 33. The question Oj. connivance is purely one of fact; and if the evidence will warrant the inference that there was connivance, the ver- dict of a jury, or the finding of a judge upon a trial without a jury, based upon such an infer- ence, will not be disturbed. Morrison v. Morrison. 136 310. See, also, ante, art. 30. 34. So if the jury find that there was conniv- ance, a divorce cannot be granted, although the presiding judge is dissatisfied with the verdict. Cairns v. Cairns, 109 408. 35. A divorce for adultery will not be granted merely upon the confessions of the libellee; the court will require some additional evidence to snow that there was no collusion. Baxter v. Baxter, 1 346; Holland v. Holland, 2 154; Billings e. Billings, (11 P.) 28 461. 36. Nor will such a divorce be usually granted upon the uncorroborated testimony of the libellant; but this is a rule of practice, not an inflexible rule of law. Bobbins v. Robbins, 100 150. 37. Evidence of acts of adultery with the Ef s ° n named in the libel, committed without the Commonwealth, is competent to show the nature of the intercourse at the time when the adultery is charged to have been committed here. Thayer v. Thayer, 101 111. 38. A charge in the libel of adultery com- mitted without the Commonwealth, with a person unknown, authorizes proof of adultery committed within ihe Commonwealth, if there has been an appearance. Washburn v. Washburn, 8 131. 39. Semble, that a clergyman's certificate of a second marriage is not competent evidence of adultery. Ellis v. Ellis, 11 92. 40._ Upon the wife's libel, where a second marriage is proved, and that the libellee and the woman occupied the same bed for several nights, the testimony of the woman, and of a- physician, that the respondent did not and could not have had sexual intercourse with her. is inadmissible. Clapp v. Clapp, 97 531. 41. Upon the husband's libel, evidence that G, with whom the adultery is charged to have- been committed, and in whose company the wife went to a hotel, asked for connecting- rooms, is inadmissible, if the request was not made in her hearing, and there is no proof that they went there together to commit adultery. Pond b. Pond, 132 219. 42. And evidence that the door between the two rooms was generally kept unlocked, is in- admissible to show that it was unlocked- on the night in question. Pond v, Pond, 132 219. 43. In such a case, where a commission has- been taken out to procure the testimony of G, the wife may testify in her own behalf that she has heard that he has gone to Europe. Pond v. Pond, 132 219. 44. As to the privilege of a witness charged. aspariiceps criminis. Brown v. Brown, 5 320; Foster v. Pierce, (11 C.) 65 437. (3.) Desertion. 45. The fact that a wife leaves her husband, with his consent, and remains absent five years, will not support his libel for divorce. Lea v. Lea, (8 A.) 90 419. 46. As to the meaning and effect of the word " desert," in the divorce statute, and the succes- sive legislation on that subject. Lea v. Lea, (8 A.) 90 418; Southwick *>. Southwick, 97 327. 47. Ill-tjeatment or misconduct of a husband, although not sufficient to authorize the wife to obtain a divorce for cruelty, will justify her in leaving his house, and prevent him from obtain- ing a divorce for desertion. Lyster «. Lyster, 111 327. See, also, 'Pidge «. Pidge, (3 Met.) 44 257; Burlen e. Shannon, (3 G.) 69 387;. Bailey e. Bailey, 97 373. 48. And generally, an abandonment of the- libellant, caused and justified by his own mis- conduct, will not sustain the libel. Fera v. Fera, 98 155; 382 DIVORCE, II, (3), (4), (5); III. 49. If the evidence rather raises a presump- tion of death, the libel will be dismissed. Bodwell v. Bodwell, 113 314. 50. The intentional withdrawal of the hus- band from all matrimonial intercourse and companionship with his wife, and his denial of the protection of his home, will sustain her libel, although he has regularly contributed towards her support. Magrath v. Magrath, 103 577. 51. A wife, who has withdrawn from cohabi- tation with her husband, in consequence of his cruelty and neglect to provide for her, may maintain a libel for desertion. Lea v. Lea, 99 493. 52. The wife's unjustifiable refusal of sexual intercourse with her husband will not sustain a libel by him for desertion. Southwick v. Southwick, 97 327; Page v. Page, 97 329, note. [See, aim, post, art. 55.] 53. A divorce may be granted for "wilful desertion" for five years, although, during the greater part of the time, the libellee has been in the house of correction. Hews v. Hews, (7 G.) 73 279. (4.) Cruelty; cruel and abusive treat- ment, etc. 54. The cruelty charged must be such as shall cause injury to life, limb, or health, or create a danger of such injury, or a reasonable apprehension of such danger. Neglect, failure to provide a maintenance, etc., will not suffice. Bailey v. Bailey, 97 373; Peabody v. Peabody, 104 195; Cowles v. Cowles, 112 298. 55. Denial of sexual intercourse by the wife is not "cruel and abusive treatment" of the husband, within the statute. Cowles v. Cowles, 112 298. [See, ante, art. 53.] 56. "Extreme cruelty," to which the statute of 1785 was confined, did not consist of threats, or desertion, and privations suffered therefrom, but only of actual personal violence, without the libellant's fault. Hill «.Hill, 2 150; Warren v. Warren, 3 321; French®. French, 4 587. 57. And substantially the same rule applies now, to interpret the same words. Ford v. Ford, 104 198. 58. Similar acts, on other occasions, cannot be shown to establish an independent ground of divorce for extreme cruelty. Ford v. Ford, 104 198. 59. As to what evidence suffices to show gross, wanton, and cruel neglect of a husband to provide maintenance for his wife, under the existing statute. Holt®. Holt, 117 202. 60. A husband who is allowed, at the trial, to show, in explanation of his conduct, that he had received an anonymous letter, cannot sus- tain an exception for the refusal of the court to allow him to read it in evidence. Mayo ii. Mayo. 119 290. 61. A husband cannot defend a libel for cruel and wanton refusal to provide his wife with maintenance, on the ground that she opened a letter addressed to him, charged Mm with adul- tery, followed him in disguise, and opened his trunk, and took out miniatures of other women French 1>. French, (14 Q.) 80 186. ' 62. Masturbation by the husband in the wife's presence, which injures her health by its effect upon her feelings, is not such cruel and abusive treatment as entitles her to a divorce. W v. W , 141 495. (5.) Intoxication; lmpotency. 63. As to the facts requisite to satisfy the words, "gross and confirmed habits of intoxi- cation," in the statute. Blaney v. Blaney, 126 205. 64. Upon a libel for divorce, by a husband, on the ground of her impotency, her admission to a female witness that "she could not have connection with any man," accompanied with proof, that for ten years since the marriage, she had constantly refused, without apparent cause, to allow the husband sexual intercourse, and that the marriage had never been consummated, will justify a finding that the charge is proved. Merrill v. Merrill, 126 228. III. PBOCEEDINGS AMD PRACTICE GENERALLY. 65. The libel must be subscribed by the li- bellant in person, except as otherwise provided by the statute. Willard v. Willard, 4 506; Winslow v. Winslow, 7 96; Gould v. Gould, (1 Met.) 42 382. 66. In a libel for adultery the participant must be named, or it must be alleged that he or she is unknown to the libellant; but this de- fect is amendable. Church «. Church, 3 157; Choate t>. Choate, 3 391. 67. Where a man, living with his wife, in the county of A., was sentenced to confinement for six years in the state prison, in the county of B. ; his wife then removed to the county of C; and he was afterwards adjudged bankrupt, and joined with his assignee in the sale of his home- stead in the county of A. ; held, that he was " still living " in the county of A., within 6. S., Ch. 107, § 14; P. S., Ch. 146, § 6, and a libel by his wife must be filed in A. county. Hanson 1>. Hanson, 111 158. 68. For rulings under the former statute, as to the proper county, see Moore «. Moore, 2 117; Richardson v. Richardson, 2 153; Lane «. Lane, 2 167; Squire v. Squire, 3 184; Merry*. Merry, 12 312. 69. A constable or private person has no au- thority to serve the process issuing upon the libel, unless by special order of the court. Leavitt e. Leavitt, 135 191. See, under the former statute, Brown «. Brown, 15 389. 70. Where the libellant alleged her maiden name to have been Launders, and in the copy DIVORCE, III; IV. 333 published the name was given as Saunders, the notice was held to be insufficient, under the former statute. Jenne v. Jenne, 7 94 71. For other rulings under the former stat- utes, now superseded by, or incorporated with, P. S., Ch. 146, §§ 6 to 10, see Homston v. Homston, 3 159; Choate v. Choate, 3 391; Anonymous, 5 197; Smith v. Smith, 6 36; Mace v. Mace, 7 212; Randall v. Randall, 7 502; Labotiere v. Labotiere, 8 383; Smith v. Smith, 9 422. 72. If the libellee wishes to defend or recrimi- nate, he must answer in writing. Orrok v. Orrok, 1 341; Pastoret ■». Pastoret, 6 276. • 73. But if the libellant goes to a hearing without an answer being filed, the objection is too late at the argument upon a report, made "upon a decree, dismissing the libel. Morrison «. Mo i rison, 136 310. 74. A libel for absolute divorce is not abated by a pending libel for divorce from bed and board. Stevens «. Stevens, (1 Met.) 42 279. [See Abatement, I, (4).] 75. It is discretionary with the court to allow or refuse an amendment of the libel during the trial. Tourtelot u. Tourtelot, 4 506, Ford v. Ford, 104 198; Harrington v. Har- rington, 107 329. [See Amendment, IV.1 76. Or to order further specifications of the alleged offence, or a bill of particulars. Adams v. Adams, (16 P.) 33 254; Gardner v. Gardner, (2 G.) 68 434; Harrington v. Harrington, 107 329. [See Bill of Particulars.] 77. An absolute divorce will not be granted unless a legal marriage is proved. Mangue v. Mangue, 1 240. 78. Qu., if such proof is necessary for a decree of divorce a mensa, if the marriage is not denied. Hill v. Hill, 2 150. 79. The special findings of the jury upon questions of fact are not conclusive, as to matters not essential to their general verdict and the decree, as where a foreign divorce is brought into question. Burlen v. Shannon, 99 200. [See Former Adjudication. II.] 80. If the wife prevails, she is entitled to costs, btevens v. Stevens, (1 Met.) 42 279- Burrows v. Purple, 107 428 IV. Alimony, and other Allowances to the Wife. 81. Before St. 1805, Ch. 57, the court had no power to decree alimony upon a divorce for adultery, but it had such power upon a divorce V^ a - A ?? r » full statement of the former ruies and adjudications on this subject, see ■Per Foster, J. . in Allen t>. Allen, 100 373; citing Wheeler «. Wheeler, 1 Dane Ab. 358; Davol v. Davol, 13 264; How- ard «. Howard, 15 196; Dean ». Rich- mond, (5 P.) 22 461; Pierce D.Burnham, (4 Met. ) 45 303 ; Ames v. Chew, (5 Met.) 46 320. See, also, West v. West, 2 323. 82. Before St. 1855, Ch. 137, the court bad no power to order alimony pend nte lite. Shannon «. Shannon, (2 G.) 68 285. 83. Now the power to decree alimony to the wife extends to all cases, even those where a a decree is granted to her husband for her fault. Graves «. Graves, 108 314. 84. The questions whether she should be allowed any alimony, and if so, what amount, are in every case within the discretion of ihe court, upon consideration of all the circum- stances. Graves v. Graves, 108 314. 85. A decree for alimony, or an allowance before final dissolution, does not stand like a final decree of divorce, which can be set aside only for fraud in procuring it. Graves v. Graves. 108 314; Edson v. Edson, 108 590. 86. The court may revise or modify any former decree for or allowance of alimony, in view of the facts upon which it was founded, and new facts bearing upon the question. Allen v. Allen, lOO 373; Graves v. Graves, 108 314; Sparhawk «. Spar- hawk. 120 390. 87. Questions of alimony may be referred by order of the court, upon consent of parties. Carter v. Carter, 109 306. 88. Upon a final decree against the husband, the court may award a gross sum to the wife in full of arrears of alimony, and her costs and expenses, and of future alimony, and expenses of maintaining the children, of whom she is given the custody. Burrows v. Purple, 107 428. 89. Alimony, allowed in a decree, will be in- creased by reason of the wife's illness. Bursler v. Bursler, (5 P.) 22 427. 90. Upon the husband's petition to make ab- solute a divorce from bed and board, alimony awarded to the wife by the first decree, may be increased without a distinct petition therefor. Graves t>. Graves, 108 314. 91. Where increased alimony is granted to the wife, upon her petition, she is allowed her ' Bursler «. Bursler, (5 P.) 22 427. 92. As to the principles upon which the court determines the amount to be allowed the wife for costs and expenses. Coffin v. Dunham, (8 C.) 62 404; Baldwin v. Baldwin, (6 G.) 72 341. 93. Scire facias is an appropriate remedy for arrears of alimony; but it is not the exclusive remedy, and a petition is usually preferable. Morton v. Morton, (4 C.) 58 518; Slade v. Slade, 106 499. 94. Formerly an action of contract would lie upon a decree for alimony; but now it will not lie. 384: DIVOKCE, IV; V 3 (1). Allen v. Allen, 100 373; Knapp v. Knapp, 134 353. 95. As to execution and other proceedings under the former statutes, see Orrok v. Orrok, 1 341; French v. French, 4 587. 96. Semble, that an action still lies upon a de- cree for alimony made in another state. Allen v. Allen, 100 373; questioning on this point, Battey v. Holbrook, (11 G.) 77 212. 97. Now scire facias is the appropriate pro- cess to obtain execution for arrears of alimony, allowed by a decree, against the property in the hands of the husband's executor or adminis- trator. Knapp v. Knapp, 134 353. 98. As a rule of practice, notice of an appli- cation for an alias execution should be given; but it is discretionary with the court to issue it without notice. Newcomb v. Newcomb, (12 G.) 78 28; Chase v. Chase, 105 385. 99. An execution to enforce a decree for ali- mony needs no affidavit to authorize the arrest of the husband. Chase v. Ingalls, 97 524. 100. If, after being committed upon execu- tion, he claims support as a pauper, he may be discharged, and an alias execution may be levied on his property. Chase v. Chase, 105 385. 101. A writ of entry to recover land set off on the execution, and whereof seisin and pos- session have been delivered to the demandant, may be maintained in the superior court. Burrows . Whiting, 114 494. 127. Or after the lapse of twelve years, upon an allegation that the petitioner's witnesses were induced, by .the adverse party, to secrete themselves, where the petitioner took no means Vol. 1—49 to procure their testimony, or to obtain a post- ponement of the trial. Holbrook v. Holbrook, 114 568. 128. Or that the adverse party suborned wit- nesses, where all the evidence to sustain the allegation was known to the petitioner at the time of the trial. Holbrook v. Holbrook, 114 568. 129. A libel for a divorce is not a "civil ac- tion " within the meaning of the statute, giving a writ of review in such actions. See P. S., Ch. 187, § 16. Lucas «. Lucas, (3 G.) 69 136. (3.) Decree nisi. [See St. 1875, Ch. 236 ; P. 8., Ch. 148, § 3.] 130. A divorce nisi, under St. 1870, Ch. 404, did not put an end to the marriage contract. Graves v. Graves, 108 314; Fox v. Davis, 113 255. 131. Since the repeal of the statute allowing a decree nisi, and until St. 1875, Ch. 226, an absolute decree could not be entered in favor of one, against whom a decree nisi had been f ranted under the former statute; and as the ecree nisi did not dissolve the marriage, he could not be permitted to marry again. Sparhawk v. Sparhawk, 114 355. 132. The statute, allowing a share of the wife's estate, to be granted to the husband upon a di- vorce, did not apply to a decree nisi. Garnett e. Garnett, 114 347. 133. A decree nisi for desertion, would not prevent the libellant from maintaining another libel, for adultery committed since the decree. Edgerly c. Edgerly, 112 53. 134. For other rulings, respecting the decree nisi, allowed by the repealed statute of 1870. see Bigelow v. Bigelow, 108 38; Edgerly v. Edgerly, 112 53; Whiting v. Whit- ing, 114 494; Wales c. Wales, 119 89; Moors t>. Moors, 121 232. (4.) Remarriage. [St. 1881, Ch. 234, § 4; P. S , Ch. 146 8 22. For rulings respecting a remarriage in another state, in violation of the statute prohibiting the remarriage of the guilty party, see Conflict of Laws, III, (5).] 135. One, against whom a divorce for adul tery has been obtained in another state, by the laws of which he may marry again, is not affected by our statute restricting the remar- riage of a guilty divorced person. Bullock ii. Bullock, 122 3. 136. The belief of the guilty party that he had a right to marry again, does not render his marriage valid, where it is in violation of the statutory restriction. White «. White, 105 325. 137. And while the statute requiring leave was in force, his subsequently obtaining leave, and a continued cohabitation, without a new ceremony, did not validate the marriage. Thompson v. Thompson, 114 566. 138. For other rulings under the former statute relating to remarriage, see Clark v. Clark, (8 C.) 62 385; Ex parte Cochrane, (10 A.) 92 276; In re Child, 109 '406. 386 DOCK— DOMICIL. Dock. [.See Whaei.] Bog. [See Animal, II; III.] o Domestic animals and fowls. [See Animal, I; II.] Domicil. [See, also, Bankruptcy ; Conflict or Laws, I; III ; Divorce, I ; Election and Electors, II, (1); Insolvent, I, (1) ; Limitation ; Poor, III; Prac- tice, I, (2); Taxation, IV, (l).] 1. The words to live, to reside, to inhabit, to dwell, to have one's home, or domicil, and their derivatives, are usually in our statutes equiva- lent and convertible terms. Harvard College v. Gore, (5 P.) 22 370; Lyman v Fiske, (17 P.) 34 231; Opin. of the Justices, (5 Met.) 46 5*87; Lee «. Boston, (2 GO 68 484; Collester v. Hailey. (6 G.) 72 517; "Worcester v. "Wilbraham, (13 G.) 79 586; Shaw v. Shaw, 98 158. 2. For an exception, where the word "inhab" itant," was used in a statute, as having a mean- ing different from that of "resident," see Harvard College v. Gore, (5 P.) 22 370. 3. Every one must have a domicil somewhere, and he can have but one domicil; a domicil once existing is not lost by abandonment, but continues until a new one is gained. Abington «. North Bridgewater, (23 P.) 40 170; Thorndike v. Boston, (1 Met.) 42 242 ; Bulkley v. "Williamstown, (3 G.) 69 493; Holmes ». Greene, (7 G.) 73 299. See, however, contra, Mead «. Boxborough, (11 C.) 65 362. 4 A man's dwelling, as distinguished from his place of business, is his domicil. Abington v. No. Bridgewater, (23 P.) 40 170; Comm. ■». KeUeher, 115 103. 5. A person going from one state, where he was domiciled, to another which he proposed to make his domicil, does not lose his domicil in the former state, until he has taken it up in the latter. Shaw «. Shaw, 98 158. See this case cited, Divorce, art. 6. 6. Every state has an undoubted right to de- termine the status, or domestic and social con- dition of persons domiciled within its territory; but a mere sojourner carries with him, in those respects, the law of his domicil, so far as his rights and liabilities are to be adjudicated upon within his domicil. Sewall v. Sewall, 122 156. l.See, also, Conflict of Laws, I; III.] 7 A person's home or domicil is his habita- tion fixed in any place, without any present intention of removing therefrom. Putnam «. Johnson, 10 488. 8. Where a man's dwelling is partly in one town or county, and partly in another, or where he has more than one dwelling, the place where he usually passes the night determines his domicil. Abington ». No. Bridgewater, (23 P) 4ft 170. 9. A wife's domicil usually follows her hus- band's, but she may for some purposes have a separate domicil. Greene ». Greene, (11 P.) 28 410- Harteau v. Harteau, (14 P.) 31 181. ' [See Divorce, I; III.] 10. The factum and animus must concur in order to establish or change a domicil. Harvard College v. Gore, (5 P.) 22 370; Jennison v. Hapgood, (10 P.) 27 77- Thorndike i>. Boston, (1 Met.) 42 343; Holmes v. Greene, (7 G.; 73 299. 11. A person may change his domicil while in the TJ. S. military service; in that case the question is one of intent. Mooar 0. Harvey, 128 219. So may a mariner, while absent on a voyage, by sending his family to the new residence, etc. Bangs v. Brewster, 111 383. 12. It is not necessary, that the person should intend to make his residence in a particular place permanent, in order to acquire a new domicil; it suffices that he intends to remain there indefinitely, without any fixed or certain purpose to return to his former abode. Whitney t>. Sherborn, (12 A.) 94 HI; "Wilbraham «. Ludlow, 99 587. 13. But a domicil is not acquired by coming to a place to seek employment, intending to re- side there only if he obtains it. Hallet v. Bassett, IOO 167; Eoss v. Ross, 103 575. 14. A student in the Theological Institution atAndover, being of age, and emancipated from his father's family, is a resident there, if such is his intent. Putnam 0. Johnson, 10 488; Opinion of the Justices, (5 Met.) 46 587. 15. But a student under age does not change his domicil, where he returns during vacations to his former residence. Granby v. Amherst, 7 1. 16. A domicil once fixed is not lost by absence, animo revertendi. In re Sacket, 1 58; Lincoln v. Hap- good, 11 350; Jennison v. Hapgood, (10 P.) 27 77; Sears ». Boston, (l¥et.) 42 250; Fitchburg i>. Winchendon, (4 C.) 58 190; Carnoe v. Freetown, (9 G.) 75 357; "Williams v. Roxbury, (12 G.) 78 21; Cochrane v. Boston, (4 A.) 86 177; Hallet v. Bassett, IOO 167. -7. Especially in the case of seafaring men, and others whose occupations require long absences. Granby v. Amherst, 7 1. 18. As to the effect of leaving his family at the former residence. „ Williams v. Whiting, ' 11 424; Cam- bridge v. Charlestown, 13 501. DOMICII^DOWER, I, (1). 387 19. As to the legal domicil of one non compos and under guardianship. Holyoke v. Haskins, (5 P.) 22 20. 20. An infant may change his domicil, by removing to another place, with his guardian's consent, without anranimw revertendi. Kirkland 9. Whately, (4 A.) 86 462. 21. The motive for a change of domicil is immaterial, although it may be to diminish taxes, or to give jurisdiction to a court, or the like. McConnell 9. Kelley, 138 372. See, also, Thayer v. Boston, 124 132. 22. A man's own declarations, as to his in- tended removal, are admissible in evidence to show his intent in removing from one place to another, and they may be rebutted or strength- ened by proof of his acts. Thorndike v. Boston, (1 Met.) 42 242; Kilburn «. Bennett, (3 Met.) 44 199, Cole v. Cheshire, (1 G.) 67 441; "Wilson «. Terry, (11 A.) 93 206; Reeder v. Holcomb, 105 93. 23. So is his own testimony. Fisk». Chester, (8 G.) 74 506; Reeder e. Holcomb, 105 93. 24. But declarations after removal are inad- missible. Salem 9. Lynn, (13 Met.) 54 544. 25. So upon a question of taxation, as to his letteis, and deeds in which he was grantor. "Wright 9. Boston, 126 161; Weld v. Boston, 126 166. 26. But deeds to him as grantee, describing him a resident of the city claiming the tax, are admissible against him. Weld «. Boston, 126 166. See, also, Hingham 9. South Scituate, (7 G.) 73 229. 27. His declarations in his will are not evi- dence in favor of his executor. Wright «. Boston, 126 161; over- ruling on this point, "Wilson v. Terry, (9 A.) 91 214. 28. Hor is his father's will. Weld 9. Boston, 126 166. 29. Copies of an old deed and an old will, by a person's grandfather, are evidence that the latter gained a settlement, in the place whereof he is described therein as being a resident; but the presumption may be rebutted by proof that he had a settlement in another town. Ward 9. Oxford, (8 P.) 25 476. See, however, Wright ». Boston, 126 161. 30. For additional rulings, upon a question of settlement, see Braintree v. Hingham, (1 P.) 18 345; Monson «. Palmer, (8 A.) 90 551. 31. A private discussion as to town affairs is not an act of habitancy; but paying taxes, voting, and attending town meetings are. Weld v. Boston, 126 166. 32. That a person's name is on the voting list of a town, or the tax list, is not evidence of his aomirai there, unless it was placed there by his act, or at his request. Mead «. Boxborough, (11 C.) 65 362; Fisk 9. Chester, (8 G.) 74 506; Sewall 9. Sewall, 122 155; overruling dic- tum to the contrary of Shaw, Ch. J., in "West Boylston 9. Sterling, (17 P.) 34 126. 33. Acts of the public officers of the town, such as warning a person to attend a school meeting, are admissible in evidence upon a question of settlement. "West Boylston v. Sterling, (17 P.) 34 126. Donatio mortis causa. [See Gift, 11.J Doves. [See Animal and Bird, I,] Dower. I. Dower Right. (1.) General rules. (2.) Improvements. (3.) Mortgaged land (4.) Dowress's right in the land. II. HOW BARRED. III. Remedies. [As to provisions in lieu of dower or a distributive share in a will, see Widow, III. As to jointure and other ante-nuptial contracts, see Husband and "Wipe, V. As to what constitutes waste by a tenant in dower, and the consequences thereof, see Waste. As to other matters, see Devise and Bequest; Di- vorce; EXECUTOR AND ADMINISTRATOR J HUSBAND AND WrFE; WIDOW.] I. Dower Right. (1.) General rules. 1. To entitle a widow to dower, her husband must have had, during the coverture, actual corporeal seisin, or a right thereto. She cannot therefore have dower in a remainder, although vested. Eldredge 9. Forrestal, 7 253; Blood 9. Blood, (23 P.) 40 80; Brooks 9. Ever- ett, (13 A.) 95 457; Wilmarth 9. Bridges, 113 407. 2. A seisin in law suffices. Atwood 9. Atwood, (22 P.) 39 283. 3. But an instantaneous seisin does not; as where he mortgages back property as soon as he receives it; and this, whether the mortgage is to the grantor or another, if it is all one transaction. Holbrook v. Finney, 4 566; Clark 9. Munroe, 14 351; Pendleton 9. Pome- roy, (4 A.) 86 510; King v. Stetson, (11 A.) 93 407. (See, also. Seisin, art. 8; and post, art. 15. i 4. And oral evidence is admissible to show that the deed and mortgage were simultaneous, although they bear different dates. Pendleton 9. Pomeroy, (4 A.) 86 510. 388 DOWEE, I, (1), (2). 5. But where the mortgage is given to a third person, it must be affirmatively shown that it was part of one transaction, in order to bar the widow's dower. Smith «. McCarty, 119 519. See, also, Bolton v. Ballard, 13 227; Lanfair ■». Lanfair, (18 P.) 35 299; Webster v. Campbell, (1 A.) 83 313. [As to what is only instantaneous seisin, see, also, Attachment, arts. 22 to 24.1 6. A widow is not dowable of land conveyed by her husband before the marriage, although the deed was not recorded. Blood v. Blood, (23 P.) 40 80. 7. Or the conveyance was in fraud of cred" itors. Whithed v. Mallory, (4 C.) 58 138. 8. A widow is not dowable of a trust estate, or of land of which the husband was only equitably seized. Reed v. Whitney, (7 G.) 73 533; Brooks v. Everett, (13 A.) 95 457. 9. But by statute, she is dowable of land held by her husband under a contract for the purchase thereof, which has been fulfilled. Reed « Whitney, (7 G.) 73 533. 10. Aliter, if it has not been fulfilled. Lobdell e. Hayes, (4 A.) 86 187. 11. Nor of land conveyed to her husband by one disseized by an adverse possessor. Small '■». Procter, 15 495. 12. The maxim, dos de dote peti non debet, does not create any distinction between estates ac- quired by descent, and those acquired by purchase. Brooks v. Everett, (13 A.) 95 457. 13. Where the heir purchases from his an- cestor in his lifetime, the widow of each is entitled to dower. Brooks v. Everett, (13 A.) 95 457. 14. A widow is dowable of land, on which her husband entered, supposing it to be the land conveyed to him, where it was not; hut it was sold by his administrator after his death, and the purchaser procured a quit-claim deed from the grantor. Hale v. Munn, (4 G.) 70 132. 15. Where A conveyed to B, who entered into possession, and afterwards reconveyed to A, neither deed being recorded, and then A conveyed to C. who had no knowledge of B's conveyance, B's seisin was not such as to entitle his widow to dower. Emerson v. Harris, (6 Met.) 47 475. 16. A widow is dowable of wild land, used by her husband in connection with cultivated land, although not adjoining the latter. White v. Willis, (7 P.) 24 143; Shat- tuck v. Gragg, (23 P.) 40 88. 17. So, where a quarry has been opened and partly worked by her husband, she is entitled to dower in the entire tract. Billings «. Taylor, (10 P.) 27 460. 18. But she is not dowable of mere wild land unconnected with land cultivated or used, al- though, since the alienation thereof by her hus- band, it has become cultivated. Conner «. Shepherd, 15 164; Webb «. Townsend, (1 P.} 18 21; White » Cutler, (17 P.) 34 248. * [See, upon this subject, G. S., Ch. 90, S3 12, 16; p^ 19. Where two widows of successive owners are entitled to dower in the same land, and one has obtained judgment for her dower against the tenant in possession, and conveyed Wright to him, without having it set off, the other is! entitled to dower in two thirds only cf the land Leavitt ». Lamprey, (13 P.) 30 382', 20. Where two tenants in common make par. tition by deed, the widow of each is dowable of her husband's portion only. Potter v. Wheeler, 13 504. 21. But if one conveys to his co-tenant his right, title, and interest, the widow may have her dower set out by metes and bounds. Blossom v. Blossom, (9 A.) 91 254. 22. A partner's widow is not entitled to dower in partnership land, if it is required for the partnership debts, although it was so conveyed as to make them tenants in common. Burnside v. Merrick, (4 Met.) 45 537; Dyer «. Clark, (5 Met.) 46 562; Howard v. Priest, (5 Met.) 46 582. 23. The purchase by a railroad corporation, ' under the statute, of land for depot and station purposes, does not extinguish an existing in- choate right of dower. Nye e. Taunton B. Railroad, 113 277. 24. The homestead statutes do not affect the right of dower, nor does the assignment of dower affect the estate of homestead. Mercier v. Chace, (11 A.) 93 194; Weller v. Weller, 131 446; Pauli). Paul, 136 286. 25. And where a widow has a homestead right, she is entitled first to have her dower as- siged, and then to have her homestead set off from the remainder of the estate. Cowdreyo.Cowdrey, 131 186; Wel- ler e. Weller, 131 446. 26. For rulings now obsolete, see, as to widows of joint tenants, Holbrook v. Finney, 4 566; of absentees and conspirators, Sewall v. Lee, 9 363; of aliens, Sewalls. Lee, 9 863; evicted dowress may he endowed anew, (G. S., Ch. 90, § 13; P. S., Ch. 124, § 15), Scott v. Hancock, 13 62. (2.) Improvements, 27. As against a grantee of the husband, who has made improvements upon the land since he acquired title, the widow's right of dower at- taches to the land, as it was at the time of tne conveyance by her husband. Ayer v. Spring, 9 8; Cathn «. WM8, 9 218; Stearns*. Swift, (8 P.) 25 532; Sturtevant e. Phelps, (16 0.) 82 50. See, also, Gore v. Brazier, 3 *' But as against the heir she is to have her ir in improvements, made by him since the 28 dower descent. Catlin «. Ware, 9 218. 29. Where a second husband imp»v« J* the land, in which his wife has only a dower DOWEE, I, (2), (3), (4). 389 Tight, which has not been set off, he is not enti- tled to a claim for the impro , eraents as against the heirs, when the dower is set off. Guckian e. Riley, 135 71. 30. Repairs, for the purpose of keeping the house in a tenaritable condition, are not im- provements, to which the dowress is required to contribute. Walsh v. "Wilson, 131 535. 31. A tenant, who does not plead or suggest a claim for improvements, before the appoint- ment of commissioners to set off the dower, cannot claim them on the motion to confirm the commissioners's report. Walsh v. Wilson, 131 535. (3.) Mortgaged land. 32. Upon the removal of a mortgage upon the husband's land, by him or any one in his behalf, his widow is entitled to her dower in the land. Bolton «. Ballard, 13 227; Hildreth v. Jones, 13 525; Snow v. Stevens, 15 278; Barker v. Parker, 17 564; Walker v. Griswold, (6 P.) 23 416. Contra, overruled to this extent, Bird v. Gardner, 10 364. 33. Where she joined in the mortgage, and the mortgage is redeemed by one claiming under her husband, she may have dower, by repaying her proportion of the mortgage debt. Gibson v. Crehore, (5 P.) 22 146; Eaton v. Simonds, (14 P.) 31 98; Mc- Cabe «. Bellows, (7 G.) 73 148. 34. Or, under the statute, she may, at her election, have her dower in the value of the land, less the amount of the mortgage debt. Newton v. Cook, (4 G.) 70 46; Mc- Cabe ». Bellows, (7 G.) 73 148. 35. So where one of two tenants in common pays off a mortgage on the whole property, for the support of a third person, the other's widow may have dower in half the land, deducting half of the value of the mortgage. Pynchon «. Lester, (6 6.) 72 314. 36. But the mortgagor's widow, who has joined in the mortgage, or whose right is sub- ordinate to the mortgagee, can have no dower as against the mortgagee, unless she pays the mortgage debt; and her remedy for that pur- pose is in equity. Gibson v. Crehore, (5 P.) 22 146; Eaton «. Simonds, (14 P.) 31 98; Messi- ter v. Wright, (16 P.) 33 151, Brown v. Lapham, (3 C.) 57 551; McCabe «. Bel- lows, (7 G.) 73 148; Farwell i>. Cotting, (8 A.) 90 211. S [See, also. Mortgage.! 37. The widow's right to dower upon the re- demption of the mortgage is the same, whether me person subsequently redeeming it is her nusband's_ grantee, or heir, a purchaser under an execution, or an assignee in insolvency. Snow v. Stevens, 15 278; Barker v. Parker, 17 564; Eaton v. Simonds, (14 P.) 31 98; Jennison v. Hapgood, (14 P.) SI 345; Newton v. Cook, (4 G.) 70 46; Sargeant v. Fuller, 105 119. 38. Where a mortgage is paid by one whose duty it is to pay it, by contract or otherwise, it is deemed to be discharged for the purpose of the widow's right of dower, although he takes an assignment of it. Brown v. Lapham, (3 C.) 57 551. 39. An heir, who gives a bond to the execu- tor to pay the debts, cannot, by taking an sssign- ment of a mortgage and foreclosing the same, defeat an estate of dower, previously assigned to the widow with his assent. King v. King, 100 224. See, also, Draper v. Baker, (12 C.) 66 288. 40. Where A, being in possession as tenant, took an assignment to himself of a mortgage upon the land, and conveyed the land to 36, claiming to be absolute owner, before which time he assigned the mortgage to another, and B paid the mortgage, A's widow cannot main- tain a writ of dower against B. Toomey v. McLean, 105 122. 41. Where a husband purchased an equity of redemption, and conveyed it to the mortgagee, bis widow is entitled to dower in the equity of redemption. Lund v. Woods, (11 Met.) 52 566. See, however, Bird v. Gardner; 10 364. 42. And possession taken by the mortgagee, after the conveyance, will not bar the widow's dower, unless notice is given to her after her husband's death, and three years before she claims her dower, that the possession is for the purpose of foreclosure. Lund v. Woods, (11 Met.) 52 566. 43. Where the mortgagor's widow joined in the mortgage, and the mortgagee recovered judgment in a foreclosure action, but before service of the writ of possession, the mortgagor died, while in insolvency, and by agreeu-ent between the mortgagee and the assignees, the land was sold free of incumbrances, and the mortgagee was paid out of the proceeds, the widow was not dowable. Brown *. Lapham, (3 C.) 57 551. See, also, Popkin v. Bumstead, 8 491. 44. Where the mortgagor's wife did not join in the mortgage, she is entitled to dower, although the mortgagee sold the land under the power in the mortgage, and took a deed to himself, and then conveyed to another, who redeemed the land from a tax sale, made before foreclosure. Walsh v. Wilson, 130 124. 45. Under the statute, where the mortgagor dies in possession of mortgaged land, his seisin is sufficient to entitle his widow to an assign- ment of dower by the probate court, the mort- gagee not objecting. In re Henry, (4 C.) 58 257; Draper ». Baker, (12 C.) 66 288. 46. Miter, before the R. S. ■ Sheafe v. O'Neil, 9 9. 47. Or against the mortgagee. Raynham -u. Wilmarth, (13 Met.) 54 414. (4.) Doivress's right In the land. 1 See, also. Waste.] 48. Except as provided in G. S., Ch. 90, § 7; P. S., Ch. 124, § 13, a widow, having a right 390 DOWER, I, (4); 11; in. of dower, cannot lawfully enter until assign- ment of her dower. Sheafe e. O'Neil, 9 13. 49. By assignment she does not acquire a new seisin, but her seisin is a comtinuation of her husband's Windham v. Portland, 4 384; Conant v. Little, (1 P.) 18 189; Jones v. Brewer, (1 P.) 18 314. _ 50. Until assignment the dower right is per- sonal, and cannot be leased, sold, or taken under an execution. Gooch v. Atkins, 14 378; Croade v. v. Ingraham, (13 P.) 30 33. 51. If the grantee of an estate in dower com- mits waste, the tenant in dower is not liable. Foot v. Dickinson, (2 Met.) 43 611. 52. A widow, to whom land is assigned for dower, by commissioners appointed by the pro- bate court, may, before the confirmation of the report, enter and cut and carry away crops sown by the heir, the subsequent confirmation relating, back and legalizing her acts. Parker v. Parker, (17 P.) 34 236. 53. A tenant in dower of land, with which wood land is connected, may cut wood there- from for the purposes of her dower land. White v. Cutler, (17 P.) 34 248. 54. But if there are two such estates, she can- not take wood from one for use on both. Cook v. Cook, (11 G.) 77 123. 55. Easements, in which a widow has dower, revert to her heirs on her death, although she has sold them as administratrix. Symmes v. Drew, (21 P.) 38 278. 56. A right of way over her husband's land, assigned to a widow with her dower, expires with her estate in dower. Hoffman v. Savage, 15 130. 57. As to dower in a right of fishery, see Russell v. Russell, (15 G.) 81 159. II. HOW BARBED. [As to the effect of provisions for the -widow, in a win, in lieu of dower, or a distributive share in the husband's property, see Widow, III. As to barring dower by an ante-nuptial agreement, see Husband and Wife, V.] 58. A woman is not barred of her dower, because she has executed a deed of the land with her husband, unless it contains apt words to release her inchoate right of dower. Catlin ». Ware, 9 218; Lufkin v. Curtis, 13 223; Leavitt v. Lamprey, (13 P,) 30 382. 59. But in such a deed, or a subsequent deed by her alone, words importing a relinquishment of dower, or a conveyance of all the right and title of the grantor or grantors, will bar the wife's dower. Stearns v. Swift, (8 P.) 25 532; Learnedc Cutler, (18 P.) 35 9; That- cher v. Howland, (2 Met.) 43 41; Tir- rel v. Kenney, 137 30. 60. Such a deed will also pass the interest of the wife in her own right, although it recites a release of dower. Smith v. Carmody, 137 126. 61. Under St. 1855, Ch. 238, where the deed purported to be executed by the wife, ' ' in order to release her rights under the homestead ex- emption act," it did not bar her right of dower Tirrel v. Kenney, 137 30. 62. A woman is entitled to dower, although she has executed with her husband a deed with apt words to release it, where his grantee re- covers back the purchase money for breach of a covenant of seisin, or of right to convey. Stinson v. Sumner, 9 143. 63. Or where a creditor levies an execution upon the land during her husband's life, and avoids the deed as fraudulent. Robinson v. Bates, (3 Met.) 44 40. 64. Or where her deed, as guardian, of.land in which she had a right of dower, is avoided by the ward, because she sold to herself Walker v. Walker, 101 169. 65. A transfer or release to one, under whom the tenant does not claim, will not bar her dower, as it may be recovered in her name by the transferee. Pixley«. Bennett, 11 298; Robinson v. Bates, (3 Met.) 44 40. 66. An instrument purporting to be a release of dower, signed but not sealed, is ineffective. Giles ». Moore, (4 G.) 70 600. 67. But two grantors, and their wives, may adopt one seal, so as to render the deed effective against them all. Tasker v. Bartlett, (5 C.) 59 359. 68. Before G. S., Ch. 90, § 8; P. S., Ch. 124, § 6, a release of dower in lands previously con- veyed by the husband, if executed by the wife alone, did not bar her dower. Page v. Page, (6 C.) 60 196; over- ruling pro tanto, Fowler v. Shearer, 7 14; and Stearns v. Swift, (8 P.) 25 532. 69. A conveyance by a married woman of her inchoate right of dower is void; and after her husband's death, she may maintain a writ of dower, without repaying the consideration. Mason «. Mason, 140 63. 70. Where the widow, by agreement with the guardian of the heirs, accepts a parcel of land as an assignment of dower, and it proves to be mortgaged, she is nevertheless bound, and her dower is barred. Jones «. Brewer, (1 P.) 18 314. 71. An adulterous elopement does not in this Commonwealth bar dower. Lakin v. Lakin, (2 A.) 84 45. 72. Where the widow, within six months after probate of the will, files in the probate court a renunciation of a provision for her, and a notice that she will claim her dower, this is an election to take her dower, and is Mi affected by a paper filed by her after six months. M1 Mathews v. Mathews, 141 *>"• III. Remedies. 73. An oral assignment of dower £ Conant «. Little, awW 289) Shat " tuck v. Gragg, (23 P.) 40 88. DOWEE, III. 391 74. The guardian of an infant heir may assign dower. 8 Jones t>. Brewer, (IP.) 18 314. 75. It is not necessary that commissioners, appointed by the probate court to set off dower, should be freeholders of the county. Miller v. Miller, 12 454. 7u. in tne assignment of dower, the commis- sioners are to regard the rents and profits only ot tne estate, out of which the dower is to be assigned; and where they have ascertained the annual income ot the whole estate, they ought to set off to the widow such a part, as will yield her one third of such income, in parcels best calculated for the convenience of herself and of the heirs. Leonard v. Leonard, 4 533; Miller v. Miller, 12 454. 77. A record in the probate court of the assignment of dower, is presumptive evidence that the assignment was made upon the widow's petition. Tilson v. Thompson, (10 P.) 27 359. 78. Where a widow applies to the probate court for assignment of her dower, on the ground that she is deprived of the provision for her in the will, and the application is refused, because it does not then appear that she will be so deprived, this is not a bar to a subsequent application. Thompson v. McGaw, (1 Met.) 42 66. 79. A writ of dower may be maintained against him who is seized in fact, although others have claims paramount to his, under which he does not hold. Otis v. Warren, 16 53. 80. In the demand of dower, the description is sufficient, if it gives notice to the tenant to what land it refers. Atwood v. Atwood, (22 P.) 39 283. 81. But if no premises are mentioned, it is insufficient. Sloan v. Whitman, (5 C.) 59 532. 82. A demand addressed to two persons, who hold land in severalty, will not support a writ oi dower against either. Pond o. Johnson, (9 G.) 75 193. 83. Where a widow h&- her election, to repay a proportional part of the amount paid to dis- charge a mortgage, or to be endowed of the equity ot redemption, a general demand of dower signifies that she elects the latter, and will support a writ of dower. Newton v. Cook, (4 G.) 70 46; Pynchon «. Lester, (6 G.) 72 314 84. For other rulings as to the demand, now superseded by or incorporated into the statute, see Parker v. Murphy, 12 485; Burbank ». Day, (12 Met.) 53 557; Page v. Page, (6 C.) 60 196. 85. The confirmation by the probate court of the report of commissioners, made before May 1, does not relate brack to May 1, so as to render the widow liable to the remainderman for the taxes of the year. Kearns v. Cunniff, 138 434, 86. The description of the land in the writ must be so certain, that seisin may be delivered by the sheriff, without reference to any descrip- tion, dehors the writ; but metes and bounds are not necessary, if the land is thus identified. Ayer v. Spring, 10 80; Atwood v. Atwood, (22 P.) 39 283. 87. If the demand is alleged in the writ, and not denied in the pleadings, proof thereof is not necessary. Ayer v. Spring, lO 80. 88. Where dower is claimed against the de- fendant, merely as tenant in possession, it is a good plea in bar that he is not tenant in posses- sion. Merrill v. Russell, 1 469. 89. The burden of proof is upon the demand- ant to show a lawful marriage; and although proof, that she had gone through a legal form of marriage with the decedent, will make out a prima facie case for her, it does not change the burden of proof. Nichols ». Munsel, 115 567. 90. At common law, the claim for dower, and the claim for damages for the detention thereof, were distinct, and recoverable by separate writs. Whitaker v. Greer, 129 417. 91. But the statute now fixes the rights of all parties, and, except in cases where other pro- visions are made, damages are incident to the writ of dower, and cannot be recovered beyond the time when the demand on which the writ is founded was made. Whitaker v. Greer, 129 417. Miter, before the present statute. Leavitt v. Lamprey, (13 P.) 30 382. 92. Damages are measured by the annual value of the land. Perry v. Goodwin, 6 498. 93. Under St. 1869, Ch. 418, where inter- locutory judgment was rendered, that the de- mandant recover her dower, and her damages for detention, as assessed by the jury, and com- missioners were appointed to set off the dower, the demandant was entitled to further damages from the verdict to the confirmation of the report. Harrington «. Conolly, 116 69. 94. If the demandant dies after judgment for her dower, but before it is set off, her adminis- trator cannot proceed for damages. Atkins v. Yeomans, (6 Met.) 47 438. 95. A plea that the tenant, a purchaser, could not deny the demandant's right, but had made improvements, and had assigned to the de- mandant what was fully equal to a third of the premises, as they were at the time of the aliena- tion, is bad as a plea in bar, and admits dower. Stearns v. Swift, (8 P.) 25 532. 96. An ante-nuptial agreement, or other pecu- niary provision for the widow in lieu of dower, may be interposed as a defence in an action for dower. Freeland v. Freeland, 128 509. See, also, Vincents Spooner, (2 C.) 56 467. Contra, before the statute, Hastings v. Dickinson, 7 153; Gibson «. Gibson, 15 106. [See, also, Widow, III.] 392 DEAIN AND DEALNAGrE— DUEESS. 97. It is no defence to a widow's action for dower, in land of which her husband was seized during coverture, that the tenant holds under a warranty deed from her father, to whom the land was conveyed by her husband; and that she has received personal property under her father's will, admitted to probate in another state. Julian v. Boston, Clinton, etc.. Railroad, 138 555. Drain and drainage. [See Cranberry Meadow; Easement; Land Owner; Meadow and low Land; Town, VI, (3); Water Course, III.] Drunkenness. [See, also. Intoxicating Liquors. As to arrest for drunkenness, see Arrest, II, (2). As to drunk- enness as a ground lor divorce, see Divorce, II, (5). As to the sufficiency of a complaint for drunken- ness, see Indictment, VIII, (27).] 1. It is no defence to a complaint for drunk- enness, under P. S., Oh. 207. §§ 26, 27, which alleges two previous convictions for the like of- fence, that the government relied upon the first offence to aggravate the second. Coram, v. Hughes, 133 496. 2. The former convictions may be relied upon at the trial, to determine whether a drunken- ness proved was voluntary. Comm. v. Hughes, 133 496. 3. At the trial of an indictment for an assault upon a police officer, committed while the de- fendant was under arrest for drunkenness, the record of a conviction and sentence for drunk- enness, at the time of the arrest, is conclusive evidence that he was then drunk. Comm. a. Feldman, 131 588. 4. Habitual intoxication, from the use of chloroform, will not sustain a complaint charg- ing one with being a common drunkard. Comm. v. Whitney, (11 C.) 60 477. 5. As to the degree and frequency of intem- perance, which constitutes a drunkard, or, what is the same, an habitual drunkard, see Comm. ». Whitney, (11 C.) 65 477; Comm. ■». Whitney, (5 G.) 71 85; Comm. v. McNamee, 112 285. 6. Proof of habitual drunkenness will sustain an indictment for being a common drunkard, without proof of disturbance of the peace. Comm. ■». Conley, (1 A.) 83 6. 7. Under St. 1876, Ch. 17; P. S., Ch. 207, § 25, a person found intoxicated in a public place may be arrested, whether the intoxication was or was not produced by the voluntary use of intoxicating liquor. Comm. ». Coughlin, 123 436. 8. Under the R. S., drunkenness in another's room, in the house where the party resides, was punishable Comm. v. Miller, (8 G.) 74 484. _ 9. Intoxication is not an excuse or justifica- tion or extenuation of a crime, Comm. v. Hawkins, (3 G.) 69 463; Comm. v, Malone, 114 295. See, also, Homicide. 10. Ahter, if there was actual insanity a.1 though caused by a long course of intemDer" ance, or the sudden cessation of the habits of drinking excessively. Lawton v. Sun M. Ins. Co.. (2 C \ Ra 500. ' °° 11. And when the circumstances are such that the defendant's guilt depends upon his inl tent, it is for the jury to determine whether he was so intoxicated as to be unable to form a guilty intent. Comm. v. Hagenlock, 140 185 Duelling. [See Comm. v. McNeill, (19 P.) 36 127.] Duress. 1. Although process is in due form, yet, if the plaintiff, fraudulently, and knowing that he has no valid claim, arrests the defendant, or seizes his goods, for the purpose of extorting money, a payment by the latter, in order to re- lease his body or his goods, is made under duress, and can be recovered back, without proof of the termination of the former suit. Chandler v. Sanger, 1 14 364. See, also, Watkins v. Baird, 6 506; Preston v. Boston, (12 P.) 29 7; Benson v. Mon- roe, (7 C.) 61 125; Carew v. Rutherford, 106 1; Regans. Baldwin, 126 485. 2. And a deed given under like circumstances may be avoided for duress. Watkins v. Baud, 6 506. 3. But a payment, made in pursuance of an honest claim of right by the payee, and under no mistake of fact, cannot be recovered back, although the demand was unjust, and the pay- ment was made under protest, and to avoid an arrest or seizure of goods, or to procure a re- lease from such an arrest or seizure. Bacon v. Bacon, (17 P.) 34 134; Wil- cox ». Howland, (23 P.) 40 167; Forbes v. Appleton, (5 C.) 59 115; Benson v. Monroe, (7 C.) 61 125; Grimes v. Briggs, HO 446; Downing v. Ely, 125 389. 4 A passenger having a railroad ticket, who stops at an intermediate station, with notice of a regulation forbidding him so to do, cannot recover back the fare paid to enable him to complete his journey. Cheney v. Boston & M. Railroad, (11 Met.) 52 121. 5. Money paid to city authorities for a license. in excess of the legal charges, if paid with full knowledge, cannot be recovered back, although paid under protest. Cook v. Boston, (9 A.) 91 393; Emery v. Lowell, 127 138. 6. So as to money paid to the receiver of a mutual insurance company, upon an assess- ment afterwards adjudged to be void. Wilde v. Baker, (14 A.) 96 349. 7. The validity of a municipal assessment, by reason of omitting persons benefited, cannot be tried in an action to recover back money paid under protest thereupon; the remedy is oy certiorari. DUEESS— DUTIES. 393 Butler v. "Worcester, 112 541; Kelso ^.Boston, 120 297. 8. If the mortgagee in possession compels the mortgagor to pay more than is actually due to prevent foreclosure, the excess may be recov- ered back. Cazenove «. Cutler, (4 Met.) 45 346. 9. Benible, that the same rule applies where the mortgagee is out of possession, but threatens to sell under a power in the mortgage. McMurtrie v. Keenan, 109 185. 10. "Where an illegal tax is collected, either by sale of goods or by payment, either with or without protest, to prevent such a sale, it may be recovered back; and the injured party, if he sues in assumpsit, can recover only the tax and interest, although goods of greater value were sold. Amesbury "W. Co. •». Amesbury, 17 461; Sumner «. Dorchester Parish, (4 PJ 21 361; Preston v. Boston, (12 P.) 29 7; Boston Glass Co. «. Boston, (4 Met.) 45 181; Dow i>. Sudbury Parish, (5 Met.) 46 73; Joyner «. Egremont S. Dist., (3 C.) 57 567; Shaw «. Becket, (7 C.) 61 442. 11. But such a payment for an excessive tax- ation of a taxable person, cannot be recovered back: the remedy is by an application for an abatement of the tax, Osborn v. Danvers, (6 P.) 23 98; Bos- ton W. P. Co. v. Boston, (9 Met.) 50 199; Howe s. Boston, (7 C.) 61 273; Lincoln v. "Worcester, (8 C.) 62 55; Bourne 11. Boston, (2 G.) 68 494. See, upon this subject, Taxation. VIII. | 12. A threat to eject a tenant, unless he will pay a sum. a sum demanded as rent, is not such duress as will enable him to recover it back, al- though it was more than was due, and the pay- ment was under protest Emmons t>. Scudder, 115 367. 18. The exaction, without force or threats, of head money, under an unconstitutional stat- ute, by the superintendent of alien passengers, from ship owners, is not duress, which will en- able the latter to recover it back, although the owner had been previously informed by the officer that, without the payment, he would not be permitted to land his passengers. Cunningham v. Boston, (15 G.) 81 468. 14. But where the superintendent went aboard a newly arrived ship, with a police offi- cer, and demanded the head money from the master, threatening him to prevent the landing of the passengers unless it was paid, and, in fact, they could not have been landed without such payment, this was duress, and the money could be recovered back. Cunningham «. Munroe, (15 G.) 81 471. 15. A threat to arrest the defendant in an action for slander, if found by the jury to be sufficient to overcome the mind and will of a person of ordinary firmness, will suffice to avoid a contract procured thereby. Poss v. Hildreth, (10 A.) 92 76. 16. An arrest upon a criminal prosecution, or a threat of such an arrest, is duress, which VOL. I--5Q will avoid a conveyance or an executory con- tract. Hackett «. King, (6 A.) 88 58; Taylor ». Jaques, 106 291. 17. A bond under the bastardy act, or a promise to marry the complainant, may be avoided for duress, if given while under arrest upon a warrant issued by a justice who had no jurisdiction. Fisher v. Shattuck, (17 P.) 34 252; Tilley v. Damon, (11 C.) 65 247. 18. And an admission of a former promise to marry her, made under such circumstances, is inadmissible in evidence. Tilley 1>. Damon, (11 C.) 65 247. 19. "Where a woman, on the eve of her mar- riage, was induced by threats of imprisonment of her intended husband, and a fear that her marriage would be prevented thereby, to exe- cute an agreement to pay his debts, such an agreement cannot be enforced in equity; and a part payment by her subsequently made is not a ratification or a waiver. Eau v. Von Zedlitz, 132 164. 20. In equity the question, upon the issue of duress, is, whether there was such duress as would avoid the instrument at law. Rau v. Von Zedlitz, 132 164. 21. At common law the defence of duress per minas must, in general, be sustained by proof of threats, which create a reasonable fear of loss of life, or of great bodily harm, or of imprisonment, to the party himself, not to another. But husband and wife, and parent and child, constitute exceptions to the rule, and each may avoid a contract made to relieve the other from duress. Harris v. Carmody, 131 51. See, also, Robinson v. Gould, (11 G.) 65 55; Lewis v. Bannister, (16 G.) 82 500. 22. So a father may avoid a mortgage, which he was induced to execute by threats of a crimi- nal prosecution against his son. Harris v. Carmody, 131 51. 28. But an indorser cannot avoid a note, on the ground that the maker was induced to exe- cute it by duress. Bowman v. Hiller, 130 153. 24. The threats need not proceed directly from the person making them to the party; it suffices if they were communicated to him by another. Taylor v. Jaques, 106 291. 25. For rulings upon questions of evidence upon an issue of duress, see Hackett v. King, (6 A.) 88 58; Mul- rey v. McDonald, 124 345. 26. A deed executed under duress may be avoided by the grantor or his heirs, by an entry within twenty years. "Worcester «. Eaton, 13 371 . Duties. ( United States. ) [See Customs and Collector or Customs ; In- ternal Revenue.] 394 DWELLING HOUSE— EASEMENT, I. Dwelling house. [See, also, Arrest; Arson; Attachment; Domi- cil; Taxation, IV, (l).l 1. A small building on the same lot with, but 45 rods from, a dwelling house, with a passage way between them, is not within a license to sell liquors in the "dwelling house and the apartments and dependencies thereof." Comm. v. Estabrook, (10 P.) 27 293. 2. "Where A owns a room on the lower floor and B the cellar and the rooms over A's, A is not liable to contribute to the repairs of the roof. Loring v. Bacon, 4 575. Dying declarations. [See Evidence, I, (6).] E. Easement; servitude. I General Rules. II HOW CREATED; INTERPRETATION; EFFECT. (1.) By implication. (2 ) By prescription. (3.) By express grant or devise. (4.) By reservation or restriction III. How LOST. (1.) By abandonment. (2.) By operation of law. (3.) By release or other agreement. IV. Rights and Liabilities. V. Remedies. [See, also, Adverse Possession; Condition, I, (1); I, (2); Deed, III, (4); III, (7); Devise and Be- quest; Dower; Highway; Land Owner; License; Mill and Mill Dam; Prescription; Eeal Prop- erty; Water Course.] I. General Rules. 1. An easement is an incorporeal heridita- ment, of which there can be no seisin. It is a liberty, privilege, or advantage, which one man has in the lands of another; and belongs to that class of rights which lie in grant and not in livery. Randall v. Chase, 133 210. 2. Therefore, the rule avoiding the deed of a disseisee does not apply to the grant of an easement. Randall «. Chase, 133 210. 3 An easement or servitude is a right, which one proprietor has to some profit, benefit, or beneficial use, out of, in, or over, the estate of another proprietor. An owner of land cannot have an easement in his own estate. Ritger v. Parker, (8 C.) 62 145. 4. "Where the public, or a private person, or a corporation, has a right of way, as upon a highway or private way, or a turnpike road, or the like, this is an easement, and not a right of property in the soil; and the owner of the soil may still use it for any purpose not inconsistent with the easement. Robbins v. Borman, (IP.) 18 122; Adams ■». Emerson, (6 P.) 23 57; Boston Water P. Co., v. Boston & W.Railroad, (16 P.) 33 512; O'Linda®. Lothrop, (21 P.) 38 292; Atkins «. Bordman, 2 Met.) 43 457; Harback v. Boston, (10 C.) 64 295; Codman«. Evans, (5 A.) 87 308. 5. The two rights are not inconsistent with each other; and each owner may maintain an action to vindicate and establish his right. Hancock ». Wentworth, (5 Met.) 46 446; Morgan v. Moore, (3 G.) 69 319. 6. The right which one has to the just and reasonable use of a natural water course running through his land, and therefore to prevent any other proprietor, above or below, to divert, ob- struct, or pollute the water, is inseparably annexed to the soil, and passes with it, as a par- cel, not as an easement or an appurtenance. Johnson v. Jordan, (2 Met.) 43 234; Cary v. Daniels, (8 Met.) 49 466, Elliot v. Fitchburg Railroad, (10 C.) 64 191. 7. As to what is a just and reasonable use of a natural water course, and other rights of a ri- rian proprietor, see Per Shaw, Ch. J., in Elliot ». Fitchburg Railroad, (10 C.) 64 191. See, also, "Weston v. Alden, 8 136; Colburn v. Richards, 13 420; Cook v. Hull, (3 P.) 20 269; Anthony v. Lapham, (5 P.) 22 175; Cary v. Daniels, (5 Met.) 46 236; Cary v. Daniels, (8 Met.) 49 466; Crit- tenton v. Alger, (11 Met.) 52 281; Soule v. Russell, (13 Met.) 54 436; Ashley «. Ashley, (6 C.) 60 70. 8. But the right to have the water flow to one's land over that of the upper proprietor, and to flow from it over that of the lower pro- prietor, is in the nature of an easement or ser- vice, with respect to which each successive parcel is a dominant tenement to secure the pro- prietor's right, and a servient tenement to secure the rights of others. Cary v. Daniels, (8 Met.) 49 466. See, also, Prescott v, Williams, (5 Met.) 46 429. 9. An owner may occupy and improve his land as he sees fit, by erecting structures or by changing the surface, although such use will cause surface water to flow over the adjoining land in greater or less quantities than before. This right exists by virtue of his dominion, and not by virtue of an easement or servitude in the lower land, and is not affected by the doctrine of prescription. Rathke v. Gardner, 134 14- "J, also, Luther®. Winnisimmet Co., (9C.) . Willis, (7 A.) 89 364; Randall v. McLaughlin, (10 A.) 92 366. 27. The English doctrine of implied grants of light and air, is not the law of this Com- monwealth ; and the conveyance of a house with windows overlooking the grantor's land, does not imply an easement for light and air. Randall v. Sanderson, 111 114; Keats ®. Hugo, 115 204; overruling, as far as they conflict with this decision, Story i>. Odin, 12 157; Thurston s. Hancock, 12 220; Grant «. Chase, 17 443. See, also, Atkins v. Bordman, (20 P.) 37 291; Collier v. Pierce, (7 G.) 73 18. 28. Where a portion of a house is assigned to widow for her dower, with a right to use the kitchen, that carries with it the right to pass through a passage way and door, not assigned to her, for the purpose of reaching the kitchen. Newton v. Newton, (17 P.) 34 201. 396 EASEMENT, II, (1), (2). 29. Aliter, where there is another passage way into the kitchen. Symmes v. Drew, (21 P ) 38 278 LSee, also, post. II, (3).] 30. Upon the question of the existence of a right of way by necessity, where it is to be shown by the use of it for taking crops from the dominant estate, evidence of the whole mode of such use is competent. Chase n. Perry, 132 582. 31. A way of necessity is not always a shift- ing way, and if it has been located by consent of both parties, and used accordingly for a long time, the parties are bound by the location: Smith v. Lee, (14 G.) 80 473. (2.) By prescription. LSee, also. Adverse Possession; Limitation of Action; Mill and Mill Dam; Prescription.! 32. An easement may now, by statute, be acquired "by adverse use or enjoyment" for twenty years. R. S., Ch. 60, § 27; G. S., Ch. 90, § m-, P. S., Ch. 122, 8 2. Hill v. Crosby, (2 P.) 19 466; Sar- gent v. Ballard, (9 P.) 26 251; Melvin •o. Whiting, (13 P.) 30 184; Bolivar M. Co. v. Neponset M. Co., (16 P.) 33 241; Williams t>. Nelson, (23 P.) 40 141; Brattle Sq. Church v. Bullard, (3 Met.) 43 363; Cotton v. Pocasset M. Co., (13 Met.) 54 429; Luther ». Winnisimmet Co., (9 C.) 63 171; Lawrence v. Fair- haven, (5 G.) 71 110; Leonard v. Leo.iard, (7 A.) 89 277. 33. As to the rule before the statute, see Arundel v. McCulloch, lO 70; Gay- etty v. Bethune, 14 49; Odiorne v. Wade, (5 P.) 22 421; Binney v. Hull Prop'rs, (5 P.) 22 503; Coolidge v. Learned, (8 P.) 25 504; Kent v. Waite, (10 P.) 27 138; Melvin «. Whiting, (10 P.) 27 295; Heed v. Northfield, (13 P.) 30 94; Hunt s. Hunt, IS Met.) 44 175. 34. There is nothing in th^ general railroad act, to prevent the owner of land, adjoining a railroad, from acquiring a right to a private way across the track by twenty years user. Fisher t>. N. Y. and N. E. Railroad, 135 107; Gay v. Boston and A. Rail- road, 141 407. Qu., whether St. 1853, Ch. 414, § 4; P. S., Ch. 112, § 195, affects the acquisition of such a right. Id. 35. If the person, against whom the right is claimed, was an infant, the period of infancy must be deducted from the twenty years. Melvin v. Whiting, (13 P.) 30 184. 36 If the person was insane, the time begins to run from his death, or the removal of the dis- ability. Edson ii. Munsell, (10 A.) 92 557. 37. The adverse use or enjoyment must have been continued and uninterrupted for the 20 years; but where the easement is of that char- acter, that it requires the repeated acts of man for its enjoyment, such as a right of way, such a user suffices, as affords an indication to the owner of the servient tenement, that the right is claimed against him. Pollard v. Barnes, (2 C.) 56 191- Bnd fish ». Bodfish, 105 317. 38. For rulings, as to the continuity or inter- ruption of an easement to flow another's land see Mill and Mill Dam. For rulings respect ing the continuity or interruption of user of an easement, in other particular cases, see Bolivar M. Co. *. Neponset M. Co., (16 P.) 33 241 ; Dana v. Valentine, (5 Met ) 46 8; Pollard «. Barnes, (3 C.) 56 191; Holland 1>. Long, (7 G.) 73 486. 39. An obstruction of part of the space, over which one claims a right of way, does not defeat his right as repects the reduced width. Putnam ». Bowker, (11 C.) 65 548] 40. A possession transmitted from ancestor to heir, testator to devisee, or grantor to grantee, is deemed to have been uninterrupted. Hill®. Crosby, (2 P.) 19 466; Sargent v. Ballard, (9 P.) 26 251; Kent?). Waite, (10 P.) 27 138; Melvin e. Whiting, (13 P.) 30 184; Williams®. Nelson, (33 P.) 40 141; Leonard v. Leonard, (7 A.) 89 277. 41. But where the title of the owner escheats, his possession cannot be tacked to that of the grantee of the Commonwealth. Sargent v. Ballard, (9 P.) 26 251, 42. And the interruption of either possession prevents the former period of possession from enuring to a successor. Kilburn «. Adams, (7 Met.) 48 33; McFarlin v. Essex Co., (10 C.) 64 304. 43. And the possession of a grantor, while he was tenant at will, cannot be tacked to that of his grantee. Plumer v. Brown, (8 Met.) 49 578. 44. Nor can a time, during which a prede- cessor used the easement by permission of the owner of the servient tenement. Gayetty v. Bethune, 14 49 45. The possession must have been open, unequivocal, and adverse, so as to indicate that it is claimed as a right, and not as enjoyed by permission; and the owner of the servient tene- ment must have had express or implied notice of its existence. Gayetty v. Bethune, 14 49; Odiorne ■». Wade, (5 P.) 22 421; Sargent v. Bal- lard, (9 P.) 26 251; Arnold*. Stevens, (24 P.) 41 106; Borden «. Vincent, (24 P.) 41 301 ; Powell ». Bagg, (8 G.) 74 441; Barker ». Salmon, (3 Met.) 43 32; Browne. King, (5 Met.) 46 173; Ashley v. Ashley, (4 G.) 70 197; Hastings «. Livermore, (7 G.) 73 194. 46. The burden of showing such a possession is upon him who asserts the easement. Brown v. King, (5 Met.) 46 173; Hooten ®. Barnard, 137 36. 47. An adverse right to an easement cannot grow out of an enjoyment thereof by permission for any length of time. 1 Q Gloucester Parish v. Beach, (2 P.) iw 60, note; Medford Parish «. Pratt, (4 £) 21 222; Baker «. Boston, (12 P.) £» 184; Thomas v. Marshfield, (13 P.) •»« 240; Gray e. Bartlett, (30 P.) 37 1»». EASEMENT, H, (2). 39T Hewins v. Smith, (11 Met.) 52 241; Bachelder v. Wakefield, (8 C.) 62 243; McFarlin ». Essex Co., (10 C.) 64 304. 48. But where the owner of land, over which there is an existing adverse way, alters the course of the way for his own convenience, and throws it open as before, this will not be an interruption of the former use, or a user by per- mission, so as to prevent the accruing of the prescription. Lamed v. Larned, (11 Met.) 52 421; Curtis v. Angier, (4 G.) 70 547; Atwater v. Bodfish, (11 G.) 77 150; Gage v. Pitts, (8 A.) 90 527; Smith ». Barnes, 101 275. 49. Upon the trial of an issue as to a right of way by prescription, hearsay evidence is inadmissible as to the claim. Noyes «. Morrill, 108 396. 50. By the construction of a drain over another's land by his permission, and its use for twenty years, no easement to maintain the drain is acquired. Smith v. Miller, (11 G.) 77 145. 51. So where two adjoining parcels are owned by the same person, who constructs a drain for the benefit of one through the other, no ease- ment is created; and if, after both have been conveyed, the use of the drain is not open and visible, and is, in fact, unknown to the owner of the land through which it passes, there is no adverse possession. Carbrey v. "Willis, (7 A.) 89 364. 52. Actual use of a drain through another's land for 20 years is presumed to be adverse; but the presumption may be rebutted by proof that the latter did not know of its existence. White v. Chapin, (12 A.) 94 516; White ». Chapin, 97 101; Hannefin«. Blake, 102 297. 53. If the drain is deepened, enlarged, or otherwise varied, a prescriptive right to use it as thus varied, cannot be acquired in less than twenty years thereafter. Cotton v. Pocasset M. Co., (13 Met.) 54 429. 54. In an action for maintaining an artificial structure upon the defendant's land, which sheds rain water upon the plaintiff's land, the defendant's burden of proof is not sustained by showing that the structure has been in the same condition for more than 20 years. Hooten v. Barnard, 137 36. 55'. Occupation by one as the servant of another, gives the former no prescriptive right. McFarlin v. Essex Co. , (10 C.) *64 304. 56. The effect of adverse possession for 20 years, as raising the presumption of a grant, is not rebutted by an imperfect or unexecuted agreement making a grant. Boliver M. Co. v. Neponset M. Co., (16 P.) 33 241. 57. The user of an easement, under claim of a right, by virtue of an oral contract, is adverse. Ashley v. Ashley, (4 G.) 70 197; Stearns v. Janes, (12 A.) 94 582. 58. So, although it began by a trespass. Sibley v. Ellis, (11 G.) 77 417. 59. A tenant in common may acquire a way by prescription against his co-tenants. Eeed v. West, (16 G.) 82 283. 60. The user of a right of way may be proved by parol. Blake v. Everett, (1 A.) 83 248. 61. As to a prescriptive right, claimed by the inhabitants of a town, to take sea weed on flats, see Sale v. Pratt, (19 P.) 36 191. 62. The erection of a wharf upon one's own flats is not the assertion of a right to lay vessels, upon the adjoining flats. Gray v. Bartlett, (20 P.) 37 186. 63. A public landing place may be acquired by general user, as against a town which claims it as a town landing place. Coolidge -». Learned, (8 P.) 25 504. 64. A right of way, established by adverse user, is limited and.qualified by its ordinary use. Richardson v. Pond, (15 G.) 81 387; Parks «. Bishop, 120 340. 65. And if the condition and character of the dominant estate are essentially altered, the right of way cannot be used for new purposes, re- quired by its altered condition, and increasing the burden on the servient estate. Parks ». Bishop, 120 340. See, also, Atwater ». Bodfish, (11 G.) 77 150; Pierce «. Drew, 136 75. 66. But no alteration in the character or qual- ity of the thing, to which a prescription is at- tached, will destroy the prescription; as where a cotton factory is substituted for a saw mill, or the like. Biglow v. Battle, 15 313; Cowell ». Thayer, (5 Met.) 46 253. 67. The efficient height of a dam, in its ordi- nary action and occupation, measures and limits the prescriptive right of the mill owner to raise the water. Ray v. Fletcher, (12 C.) 66 200; Tyler v. Mather, (9 G.) 75 177; Jack- son v. Harrington, (2 A.) 84 242; Brace B.'Yale, (10 A.) 92 441; Brace ». Yale, 97 18. 68. Proof of adverse use of a way, by the own- ers of a farm, and any others having occasion to use it, will sustain an allegation of a prescrip- tive right in the farm owners, although it shows a right by custom in others. Kent ». Waite, (10 P.) 27 138 69. The projection of the eaves of a house over another's adjoining land for more than 20 years, gives an easement, but not a title to the land; and the owner of the adjoining land may build thereupon, if he can do so without inter- fering with the eaves. Keats «. Hugo, 115 204. 70. No easement of light and air is acquired, lay 20 years possession and use of windows, overlooking another's land. Richardson v. Pond, (15 G.) 81 387; Keats v. Hugo, 115 204; qualifying and explaining Story v. Odin, 12 157; Thurston v. Hancock, 12 220; Grants. Chase, 17 443. 398 EASEMENT, II, (2), (3). 71. See, now, as to an easement of light and air, G. S., Ch. 90, § 32; P. S., Ch. 123, § 1, and Fifty Associates v. Tudor, (6 G.) 72 255; Rogers ». Sawin, (10 G.) 76 376; Carrig v. Dee, (14 G.) 80 583. 72. A right in A to take growing wood and crops from land of B, and make such other use of the land, as is not inconsistent with B's unused right, incident to his title, to flow it for his mill pond, is not a right which can be acquired by prescription. Morse v. Marshall, 97 519. 73. A right of way over another's land in all directions, where most convenient to the person claiming it, cannot be acquired by prescription. Jones v. Percival, (5 P.) 22 485. 74. Individuals may have a right of way prescription, over the lands of inhabitants of a town. Gloucester Par. v. Beach, (2P % 19 60, note. 75. As to the right by prescription to have a fence in the highway, see Highway, V, (4); and Spear ■». Bicknell, 5 125. [Upon the question of the prescriptive right to maintain a nuisance, see Nuisance, I, (1) ; II.] 76. An easement may be created, either for the public or for a city, by the fact that land adjoining the common of the city has been left open and uninclosed, and has been used by the public for more than 20 years. Gordon v. Taunton, 126 349. 77. The use by the grantee of an easement in land previously mortgaged by the grantor, does not begin to be adverse, until possession is taken by the mortgagee. Murphy *>. Welch, 128 489. 78. After a judgment of ouster, upon an in- formation in the nature of a quo warranto, against a corporation owning a mill privilege and a dam, the grantee of the corporation, prior to the iudement, may acquire a prescrip- tive right to* maintain the dam by more than 20 years' user. Campbell v. Talbot, 132 174. 79. An adverse right to use a way, laid out for other purposes, cannot be established by proof of user, consistent with the rights of the owner, and of those entitled to use it. Harpers Advent Par., (7 A.) 89 478. 80. "Whether the use of a right of way was adverse or permissive is for the jury, under proper instructions from the court. Putnam v. Bowker, (11 C.) 65 542. 81. In general, to establish a right of way by adverse user, it is necessary to show a uniform passage over a particular strip of land, whether the path was beaten or not; straggling passages over any part of the land will not suffice. Hewins ®. Smith, (11 Met.) 52 241; Pope «. Devereux, (5 G.) 71 409; Baker v. Crosby, (9 G.) 75 421; Smith v. Lee, (14 G.) 80 473; Rotch's Wharf ■». Judd, 108 224. 82. Where the defendant, in an action against him for obstructing a right of way, contends that he has acquired such right by adverse possession, evidence is inadmissible that the way has been similarly obstructed by other per. sons, in places over which the plaintiff hadno occasion to pass. Randall v. Chase, 133 210. 83. A right in the nature of an easement may be created by prescription, to have the occupant of adjacent land maintain the entire division fence. Rust ®. Low, 6 90; Binney v. Hull (5 P.) 22 503; Thayer v. Arnold d Met.) 45 589; Bronson«. Coffin, 108 175; Bronson v. Coffin, 118 156. C3.) By express grant or devise. 84. An easement appurtenant to land will pass by a grant or devise of the land, without mentioning the easement, or using the word " appurtenances." Kent v. Waite, (10 P.) 27 138; At- kins i>. Bordman, (2 Met.) 43 457; Par- ker v. Pramingham, (8 Met.) 49 260; Underwood v. Carney, (1 C.) 55 285 ■ Thayer^. Payne, (2 C.) 56 327; Brown v. Thissell, (6 C.) 60 254; Bitger v. Parker, (8 0.) 62 145; Barnes s.Haynes, (13 G.) 79 188; Philbrick v. Ewing, 97 133; Oliver ■». Dickinson, 100 111; Barnes v. Lloyd, 112 224; Handy*. Foley, 121 258. 85. But where the grantor has previously re- leased a right of way, the easement will not pass. Parker v. Moore, 118 552. 86. And the words "privileges," "appurte- nances," and the like, will not pass an easement which is not part of property expressly con- veyed, or annexed and appendant to it. Leonard «. White, 7 6; Gayetty v. Bethune, 14 49; Grant «. Chase, 17 443; Pratt v. Sanger, (4 G.) 70 84; Harlow ®. Whitcher, 136 553. 87. And a release by a mortgagee, of one of two parcels of land included in the mortgage, does not convey an easement in favor of that parcel, created by him, by imposing a servitude on the other parcel, while occupying both. Harlow v. Whitcher, 136 553. 88. Where land subject to an easement is de- vised, "subject to all incumbrances thereon," the fact that the testator used it for stairways, woodsheds, etc., does not create an easement thereupon, although the remaining land was devised to two persons in severalty, and an easement imposed on each for the benefit of the other. Sullivan v. Ryan, 130 116. 89. For rulings upon a deed of partition be- tween two tenants in common, holding that one of the grantees had not only a right of way over an open place called " a court," but aright to have the entire court kept open for light and air, see Salisbury «. Andrews, 128 336. 90. And e converse, for rulings upon other conveyances, holding that the grantees had no right, either to a right of way over an open place or to have it kept open, see Boston Water Powe- Co. *. Boston, 127 374; Williams v. Boston water Power Co., 134 406. EASEMENT, II, (3). 399 81. See, also, as to the construction of grants of light and air, Dyer v. Sanford, (9 Met.) 50 395; Brooks v. Eeynolds, 106 81. 92. The grant by the owner of a swamp to a reservoir company, of the right of flowing or raising the waters of a pond upon his land, with covenants of seisin and warranty, is the grant of an easement, and is not a release of damages for flowage. Watuppa Keservoir Co. v. Mackenzie, 132 71. 93. A grant of a " way," or of the " privilege of a highway," is the grant of an easement merely. Jamaica P. Aqueduct v. Chandler, (9 A.) 91 159. 94. A grant in partition of a right of way, as enjoyed by A, (a decedent,) if it can be con- strued to include a right over A's own land, is limited to definite ways actually used by him. Haywood «. Davison, 127 525. 95. A grant of a right of way to "cross" land does not authorize the grantee to enter at one place, turnnaround, and come out on the same side. Comstock v. Van Deusen, (5 P.) 22 163. 96. As to the construction of grants of rights of passage, with respect to the use thereof, see, also, Choate v. Burnham, (7 P.) 24 274 Newton v. Newton, (17 P.) 34 201 Davenport v. Lamson, (21 P.) 38 72 Symmes v. Drew, (21 P.) 38 278 Mendell ». Delano, (7 Met.) 48 176 Simonds v. "Wellington, (10 C.) 64 313 Appleton f>. Pullerton, (1 G.) 67 186 Pratt 1). Sanger, (4 G.) 70 84; Holt e. Sargent, (15 S.) 81 97. [As to the effect of a reference in a deed to a Bum, on which rights of way are indicated, see used, III, (8.1 97. "Where a way is granted, designating its course by certain termini, the grantee has no right to deviate from the designated course, although the way has become impassable from being overflowed, or the like. Per Wilde, J., in Miller v. Bristol, (12 P.) 29 550. 98. But where a right of way is not limited and defined, although a particular course is usually taken, and the owner of the servient estate stops up the usual route, the owner of the dominant estate may pass over another part of the land, doing no unnecessary damage. Farnum v. Piatt, (8 P.) 25 339; Leon- ard «. Leonard, (2 A.) 84 543; Bass v. Edwards, 126 445. 99. An easement can be created only by deed or prescription; a parol license is revocable, although executed. Cook «. Stearns, 11 533; Morse v. Copeland, (2 G.) 68 302. [See, also, License.1 100. A covenant in a deed to a railroad com- pany, to maintain a fence upon the line, gives an interest in the nature of an easement to the grantee, and is a breach of a subsequent cove- nant against incumbrances. Bronson v. Coffin, 108 175. 101. So as to a covenant in a deed, that another parcel of land shall remain forever common. O'N/eil «. Holbrook, 121 102. 102. A devise to the testator's wife of the use and improvement of the testator's dwelling, except that part devised to his daughter, with the privilege of fire wood furnished at the door, followed by a devise of another portion to his daughter for life, "and also a privilege at the fire which I have made for my wife," gives to the daughter an interest in the nature of an easement, to which the ' ' privilege at the fire" is an incident, to recover the value of which an action of contract will not lie. Kingman v. Kingman, 121 249. 103. "Where a tract of land, subject to a servitude of maintaining a fence, is conveyed in several parcels to different purchaser*, those lots which are not bounded by the fence, do not remain subject to the servitude. Bronson «. Coffln, 118 156. 104. But where a right of way is appurtenant to a tract of land, which is sold in parcels to different persons, each purchaser has the ease- ment as appurtenant to his land. Underwood v. Carney, (1 C.) 55 285; "Whitney v. Lee, (1 A.) 83 198. 105. A grant of land, with all ways " appur- tenant," where there is no way appurtenant, but there is a way over other land of the grantor, will be construed, in accordance with the intent, as passing that way as an easement created by the deed, and annexed to the prop- erty granted. Atkins v. Bordman, (2 Met.) 43 457. See, also, Salisbury v. Andrews, (19 P.) 36 250. 106. "Where a deed of a city lot refers to a plan for a full description, and that plan shows a passage way to S. street, which is sufficient, the deed does not include a right to use another passage way to B. street, not shown in the plan, but owned by the grantor, although he pur- chased it for the purpose of using it in connec- tion with the lot, and for a time permitted his tenants so to use it, and constructed a drain through it. Parker v. Bennett, (11 A.) 93 388. 107. "Where a right of way is granted, with- out fixed or defined limits, the practical adop- tion and use for a long time, with the grantor's acquiescence, of a particular route, locate it, as if it had been so described. Bannon v. Angier, (2 A.) 84 128; George i>. Cox, 114 382; Stetson v. Curtis, 119 266. 108. A reservation of a right of way, for the purpose of repairing a building in an adjoining lot, when necessary, with a provision that "said pass-way shall be only a foot passage for said purpose," does not definitely locate the way. Phipps v. Johnson, 99 26. 109. Where a right of way, " ns now laid out," is granted, the owner of the_ servient estate cannot, in the absence of evidence of usage, erect a gate at the entrance, or narrow the passage by gate posts. Welch v. Wilcox, 101 162. 110. Where the language of the deed is not such as definitely and exactly to fix the width 400 EASEMENT, II, (3), (4). of a passage way granted or reserved, it means one of suitable and convenient width for the purpose contemplated. Atkins v. Bordman, (2 Met.) 43 457; Johnson v. Kinnicutt, (2 C.) 56 153; Hartshorn v. South Reading, (8 A.) 85 501. 111. But where the dimensions are given, it is no excuse for the incumbering or narrowing of the way by the owner of the servient estate, that what is left is a reasonable way. Nash v. New England Ins. Co., 127 91. 112. For other rulings, as to the dimensions of ways granted or reserved, under the peculiar language of particular conveyances, see Salisbury v. Andrews, (19 P.) 36 250; Atkins v. Bordman, (20 P.) 37 291; Tudor Ice Co. v. Cunningham, (8 A.) 90 139; Eames v. Collins, 107 594; Stet- son v. Curtis, 119 266; Tucker v. Howard, 122 529; O'Brien v. Schayer, 124 211. 113. A deed, with a right " of a free passage way from " a road described, conveys a right to pass to and from the road Georges Cox, 114 382. 114. Where the owner of a tract of land, on which he had laid out a private court, with house lots on each side, conveyed one of them to K, with the part of the court in front of it, and then another to P, with a right of way through the court, P took no right of way through the part conveyed to K, although K's deed provided that it should remain forever open, etc. Oliver v. Pitman, 98 46. 115. Where the owner of a parcel, at the end of a court, conveyed to the owners of the lots abutting on the court, the use of the parcel for light, and air, etc. , and then conveyed the par- cel to the owner of an adjoining lot, his grantee has the right to pass over the parcel to the court. Gardner «. Boston, 106 549. 116. Where A conveyed to B a parcel, with the right of access to it " over the land of the grantor, as heretofore used," and in fact, al- though A had other adjoining land, no way over it was actually used; and afterwards C, who owned other land adjoiniug, released to B all his rights in the premises conveyed by A's deed to B, C's deed passed no right of way over his land, in the absence of evidence that such a way was used before A's deed to B. Bigelow Carpet Co. v. Clinton, 108 70. 117. A grant of a right "to pass and repass over my land where it is necessary," conveys a right of way only to and from those lands which the grantee owned at the date of the deed. Smith v. Porter, (10 G.) 76 66. 118. A conveyance by A to B, his heirs and assigns, of a privilege of passing and repassing with carriages or otherwise, as the said B may elect, in the drive way by the westerly end and southerly side of a certain block of buildings, " to land of B, said drive way to be kept not less than 12 feet wide," definitely locates the drive way, and conveys, not a mere personal privilege, but an easement, which B can con- vey, and the election relates merely to the mode of user. Randall v. Chase, 133 210. 119. And a grantee of B, in an action against a grantee of A, for obstructing the way mav put in evidence the deed from A to B, and also a deed 30 years old, describing the way be- lies under whom the plaintiff and d& tween parties i_ fendant claim. Randall v. Chase, de- 133 210. 120. And where the defendant's deed de- scribed one of his boundary lines as running from the county road about 38 feet to the cen- tre of a drive way, the line of occupation of the county road, by fences or projections of build- ings may be shown, in order to determine where the drive way was. Randall v. Chase, 133 210. 121. Where the owner of a narrow strip of land, and of two parcels of land adjoining it on each side, conveys the two parcels, bound- ingoneupon "astreet," and the other upon "an intended street," referring to such strip, the fee to the strip does not pass, but a right of way therein passes. O'Linda v. Lothrop, (21 P.) 38 292. 122. And where the owner of two lots, and of a way separating them, conveyed them on the same day, one to A, bounding it on the way, the other to B, bounding it by the land conveyed to A, and with words to include the way, A has an easement in the way. Lewis v. Beattie, 105 410. 123. Where one conveys land bounded " upon a private way which I lay down," he can use the way for access to his remaining land; and if he conveys all the land on both sides of the way, he can use it for access to his land at the end. Goss v. Calhane, 113 423. [For numerous additional cases, as to the effect of bounding land upon a street or a way, or by refer- ence to a plan, with respect to the easement acquired thereby, and other rights and liabilities of the par- ties, see Bound aby Line, H, (1); Covenant, IIL See, also, Deed, III, (2).l (4.) By reservation or restriction. [See, also. Deed, HI, (7); Condition, I, (I).] 124. An easement may be created by a reser- vation in a grant; and such a reservation may be conveyed by the grantor, or passes to the purchaser of the dominant estate, in like manner as an easement created by express grant. Pettee «. Hawes, (13 P.) 30 323; Goodrich e. Burbank, (12 A.) 94 459; French ». Morris, 101 68; Owens. Field, 102 90. 125. An easement created by grant or reser- vation may be enlarged by prescription. Atkins v. Bordman, (20 P.) 37 891. 126. Or an additional easement may he created by prescription or in any other u,ocle. Kenti.Waite,(10P.) 27 138; Atkins v. Bordman, (20 P.) 37 291; Atkins 0. Bordman, {2 Met.) 43 457. 127. A reservation in a deed of land, that no building is to be erected on the land, or on a particular portion of it, or otherwise restricnng the use and control of the land by the grantee EASEMENT, il, (4); ITT, (1). 401 and his successors, constitutes an easement, or a servitude in the nature of an easement; and the situation of the land, relatively to other land of the grantor, determines whether it is a per- sonal right of the grantor, or appurtenant to and passing with his other land. Peck ®. Conway, 119 546. See, • also, Whitney v. Union Railway, (11 G.) 77 359; Skinner v. Shepard, 130 180; Nowell ®. Boston Academy, etc., 130 209; Kramer ®. Carter, 136 504; Beals v. Case, 138 138. 128. Such reservations and restrictions are frequently styled conditions in the deeds con- taining them; but they do not create estates upon condition. For a collection of such cases, see Condition, I, (1). 129. A way in gross may accrue to one and his heirs, by a reservation in his own deed con- veying the land, in which the way is reserved. White ®. Crawford, 10 183; Bowen «. Conner, (6 C.) 60 132; Barnes ®. Lloyd, 112 224. 130. Where land is conveyed, except a strip on the west side, and bounded on the west side by a passage way, " reserved by me to be used as such, and to be used by the grantee and his assigns as a passage way, in common with myself and others under me," this reserves the fee of the soil to the grantor, and gives the grantee a right of way appurtenant only to the land granted, and which he has no right to use in connection with other land. Stearns ®. Mullen, (4 G.) 70 151. 181. Where the owner of land lays it out into lots, traversed by two connecting passage ways, as represented upon a plan, and conveys some of the lots, with a right appurtenant to each in common with himself, his heirs and assigns, to pass and repass over the ways, the right reserved in both ways is appurtenant to each of the re- maining lots, and passes without express words to a grantee of one of them, although the land is bounded upon one of the ways only. Fox ®. Union Sugar Refinery, 109 «92. 132. An easement reserved of a right of way is never presumed to be personal, where it can fairly be construed as appurtenant to some other estate. Smith v. Porter, (10 G.) 76 66; Den- nis v. Wilson, 107 591. _ 133. Such a reservation, without words of inheritance, is limited to the life of the grantor. Beans. French, 140 229. See, also, Dennis v. Wilson, 107 591; Handy a. Foley, 121 258. 134. If it is so limited, it is nevertheless appurtenant to the land, and passes to a grantee as longas the grantor lives. Bowen v. Conner, (6 C.) 60 132; Dennis® Wilson, 107 591; Handy®. Foley, 121 258. 135. For rulings, as to the sufficiency and in- terpretation of reservations of easements ia particular cases, see ,,?, owen «• Conner, (6 CV) 60 132; Miller v. Washburn, 117 371; Walsh ». Macomber, 119 73; Gerrish v. Shat- tuck, 128 571. Vol. 1—51 136. A covenant in a deed, imposing a burden upon other land of the grantor, if it is in aid of the grant, is in substance the grant of an ease- ment, in the nature of a restriction. Norcross ®. James, 140 188. 137. For a full discussion of the rule in equity, relating to such a covenant, and an exposition of the cases where it can or cannot, be enforced by a purchaser, see Norcross ®. James, 140 188. 138. If no permanent restriction upon the use of an estate is created by deed, equity will not imply one under an alleged independent agreement, unless it is clearly established. Hubbell v. Warren, (8 A.) 90 173. 139. And an agreement between owners cf adjoining lands, to erect buildings in a uniform manner, does not by implication require that they shall always remain so. Hubbell ®. Warren, (8 A.) 90 173. 140. And an oral agreement to set the build- ings further back cannot be enforced. Hubbell ®. Warren, (8 A.) 90 173. HI. HOW LOST. I See, also. Adverse Possession, II : Highway, 111,'" - - '-'■-" (1.) By abandonment. 3ee, also. Adverse Posses; , (6) ; Mill and Mill Dam.1 141. The mere nonuser of an easement, not resting in grant, for less than twenty years, is not an abandonment, if it was not the party's intention to abandon it; but it is evidence of such an intention. Williams v. Nelson, (23 T.) 40 141. Dana i>. Valentine, (5 Met.) 46 8. 142. And an easement established by grant is not lost by mere non-user for any length of time. White ®. Crawford, lO 183; Arnold e. Stevens, (24 P.) 41 106; Jennison ®. Walker, (11 G.) 77 423; Bannon ®. An- gier, (2 A.) 84 128; Owen ®. Field, 102 90; Barnes ®. Lloyd, 112 224; Eddy®. Chace, 140 471. 143. Upon the question of intention to aban- don, oral testimony is admissible. Warshauer ®. Randall, 109 586. See, also, Hoffman i>. Savage, 15 130; King v. Murphy, 140 254. 144. Oral testimony is also admissible, includ- ing the declarations of a former owner of the dominant estate, to show that certain acts were done with the intention of abandoning the ease- ment. King ®. Murphy, 140 254. 145. But changes made, or other acts done, or adverse acts permitted, by ihe owner of the dominant estate, inconsistent with the use of an easement, imply the abandonment of the ease- ment, however created, and if continued for 20 years, bar an easement, even if resting in grant. Emerson ®. Wiley, (10 P.) 27 310; Dyer®. Sanford, (9 Met.) 50 395; Pope «. Devereux, (5 G.) 71 409; Jennison ®. Walker, (11 G.) 77 423; Hayford v. Spokesfield, 100 491; Barnes ®. Lloyd, 402 EASEMENT, III, (1), (2), (3). 112 224; Canny v. Andrews, 123 155; Central Wharf ». India Wharf, 123 567; Chandler v. Jamaica P. Aqueduct, 125 544. 146. The same rule holds as to a mill site; and when thus abandoned, the rights of the other riparian owners are the same, as if it had never been occupied. Hatch v. Dwight, 17 289; French «. BraintreeM. Co., (23 P.) 40 216; Hodges ■v. Hodges, (5 Met.) 46 205. 147. An obligation to maintain a fence, if a continuing charge upon the land, is not im- paired by mere omission to perform it for more than 20 years. Bronson v. Coffin, 108 175. 148. Where a servitude or easement is ex pressly limited to a particular purpose, as a rail - way, and that purpose is abandoned, it cannot be enforced for an incidental purpose, such as light and air. Bangs «. Potter, 135 245. See, also, Central Wharf v. India Wharf, 123 ' 567. (2.) By operation of law. 149. Where the servient and dominant estates are united in the same owner, the easement is extinguished, and cannot afterwards be claimed without a new grant or prescription. Grant v. Chase, 17 443; Ritger v. Parker, (8 C.) 62 145; Atwater v. Bod- fish, (11 G.) 77 150. 150. But for that purpose the dominant and servient estates, thus united, must be equal in duration, and not liable to be again disjoined by act of the law. Ritger«. Parker, (8 C.) 62 145; Curtis v. Francis, (9 C.) 63 427. 151. Thus an extinguishment does not occur, where both estates are vested in a mortgagee, or the owner of one becomes a mortgagee of the other, until foreclosure. Ritger v. Parker, (8 C.) 62 145; Bal- lard v. Ballard Vale Co., (5 G.) 7 1 468. See, also, Harlow v. Whitcher, 136 553. 152. And the dominant and servient estates, united, must be equal and co-extensive. Thus an easement is not extinguished where the owner of one estate has only a fractional part of, or a tenancy in common in, the other. Binney v. Hull, (5 P.) 22 503; Bliss v. Rice, (17 P.) 34 23; Atlanta Mills v. Mason, 120 244. 153. And the easement is not extinguished by unity of possession, where one title is de- fective. Tyler ». Hammond, (11 P.) 28 193. 154. An easement created by grant does not cease, because the necessity for it has ceased Atlanta Mills ». Mason, 120 244. 155. A widow's right of way, assigned to her as appurtenant to other land held in dower, ceases with her life; but not by the transfer of her dower right in the land. Hoffman «. Savage, 15 130. 156. Semble, that an exception is created where all not set off to the widow is sold. Symmes v. Drew, (21 P.) 38 278. 157. A right of way is extinguished by the laying out of a public way, either over the same site, or so as to absorb the dominant estate. Hancock v. Wentworth, (5 Met.) 46 446; Leonard «. Adams, 1 19 366. 158. But serrible, that if the public way is discontinued, the easement revives. Leonard v. Adams, 119 366. [As to cesser of a right of way by necessity, where the owner acquires another way, see ante, art. 22.] (3.) By release or otber agreement, 159. Strictly an easement, being an interest in real property, can be released only by deed; but unsealed written instruments and oral declarations, are admissible to show the exist- ence or the character of any act or abandon- ment in question. Dyer v. Sanford, (9 Met ) 50 395; Pope v. Devereux, (5 G.) 71 409; War- shauer «. Randall, 109 586. 160. And a license given by the owner of the dominant to the owner of the servient estate, to obstruct an easement, is not revocable after it is executed, and may amount to an abandonment of the easement to the extent of the license. Dyer v. Sanford, (9 Met.) 50 395. 161. An easement in real property, however acquired, may be extinguished, renounced, or modified, by a parol license granted by the owner of the dominant estate, and executed by the owner of the servient estate; but a parol license, which, if given by deed, would create an easement, is revocable, although executed. Morse v. Copeland, (2 G.) 68 303. 162. An executed oral agreement between the owners of the two estates, to discontinue an old way and substitute a new one, is competent evidence of the surrender of the old way. Pope «. Devereux, (5 G.) 71 409. See, also, Larned s. Lamed, (11 Met.) 52 421. 163. Where the owners of several parcels of land entered into a written agreement, that a gate on their private way "is to be kept up, except by consent of the parties," this, with accompanying acts, means that when thus taken down, it shall remain down forever. Fowle ». Bigelpw, 10 379. 164. A release by a mortgagee of one of two parcels of land included v in the mortgage, does not convey to the releasee an easement in favor of the parcel released; created by him, by im- posing a servitude on the other parcel, while occupying both parcels, before the release. Harlow v. Whitcher, 136 553. 165. Where two tenants in common of real property, including a mill privilege, make par- tition by mutual deeds of release, each stipulat- ing that the grantor and his heirs shall not claim any right or title to the premises or their appurtenances forever, this extinguishes the mill privilege against the lands of either. Hamilton v. Farrar, 128 492. 166. Where a passage way is reserved in a bond for a deed given by the Commonwealth, it must be kept open to the sky throughout its entire length, and the abutters on the passage EASEMENT, IV. 403 way between two cross streets cannot, by agree- ment between themselves, discontinue so much Atty.-Genl. «. Williams, 140 329. IV. Rights and Liabilities. 167 Where one, who owns land abutting on a city street, opens a private way from the street to tho rear of his land, and sells the land in lots, he retains only a barren fee in the way, and cannot convey a right in the way to another land owner. Greene i>. Canny, 137 64. 168. One, who has conveyed a lot of land bounded upon a canal, with a privilege in the canal, cannot afterwards make or permit any alterations in the canal, by which his grantee's privilege therein would be injured. Whitman v. Boston & M. R. R., (7 A.) 89 313. 169. Nor can any one of several owners, whose lands abut on a canal, drive piles so as to interfere with the navigation, and render the approach to the others' premises more difficult. Page D.Young, 106 313. 170. A provision in a deed, that if the grantee shall "make any addition" to his building, he shall not extend it beyond a certain line, does not prevent him from raising the building, although he intercepts thereby the grantor's light and air to a building on the adjoining land. Atkins v. Bordman, (20 P.) 37 291. 171. For other rulings, as to such and similar restrictions in a deed, see Atkins t>. Bordman, (20 P.) 37 291; Atkins e. Bordman, (2 Met.) 43 457; Schwoerer v. Boylston M. Assn., 99 285; Brooks 11. Reynolds, 106 31; Sal- isbury «. Andrews, 128 336; Atty.- Genl. v. Williams, 140 329. 172. Where one has the right to "pass and re- pass over another's land to repair a building, a dam, or the like, the latter is entitled to reason- able notice of an intention of the owner of the easement to make repairs, before being liable to an action for obstructing the right of "way. Phipps «. Johnson, 99 26; Mansfield v. Shepard, 134 520. See, also, Hill «. Haskins, (8 P.) 25 83. 173. Under a grant to an aqueduct company to enter upon the grantor's lands to dig and lay pipes, and, when necessary, to repair them, the company may enter to increase the size of pipes, or to relay pipes previously laid upon the origi- nal line, but not upon a new line; but digging a trench upon a new line, does not work an abandonment or loss of the easement. Marsh v Haverhill Aqueduct, 134 106 174. And generally, a wrongful use of an easement does not justify the owner in obstruct- ing its rightful use: his remedy is by action. Mendell v. Delano, (7 Met.) 48 176. 175. Such a grant does not authorize the grantee to lay a new aqueduct in another place, after one has been laid and afterwards taken up, and the easement abandoned for 20 years, although the construction of a railroad has ren- dered it impossible to lay the new aqueduct in the old place. Jennison v. Walker, (11 G.) 77 423. See, also, Chandler *. Jamaica P. Aq., 125 544. 176. Where a grantor reserved a right of way to his other land "as usually occupied," and the usual occupation of the other land had been for getting hay and other crops therefrom, but he had never carried hay, although he had carted manure and potatoes, over the granted land, he may cart hay over it in loads of not unusual size and shape, and may cut down the limb of a tree which obstructs his doing so. Sargent v. Hubbard, 102 380. 177. An easement imposes no obligation on the owner of the servient tenement, to keep the subject of the easement in repair. Doane v. Badger, 12 65; Jones v. Percival, (5 P.) 22 485; Prescott v. White, (21 P.) 38 341; Prescott v. Wil- liams, (5 Met.) 46 429; Baker v. Ded- ham, (16 G.) 82 393; Warner v. Hol- yoke, 112 362. 178. The owner of a right of way may him- self make any reasonable repairs, or otherwise reasonably improve the roadway. Brown v. Stone, (10 G.) 76 61. 179. If away is granted by termini, the gran- tee cannot deviate from it, although it is ren- dered impassable by natural causes; but he may, if it is obstructed by the owner of the land, doing no unnecessary damage. Farnum v. Piatt, (8 P.) 25 339; Miller v. Bristol, (12 P.) 29 550; Leon- ard i). Leonard, (2 A.) 84 543; Bass 1>. Edwards, 126 445. 180. But where a highway is obstructed from natural causes, a traveller may pass over the adjoining land. Campbell v. Race, (7 C.) 61 408. 181. The ownership of an easement includes also such secondary easements, as are necessary for the enjoyment of the principal one. Thus an easement to have and enjoy a water course to or from one's land, has attached to it the secondary easement of entering the land through which it passes, for the purpose of removing obstructions to the flow thereof. Prescott v. White, (21 P.) 38 341; Prescott «. Williams, (5 Met.) 46 429. 182. As to the right and duty of placing the materials taken out upon the bank, see Prescott v. White, (21 P.) 38 341. 183. The owner of an ancient mill may law- fully enter another's close, and remove a dam which prevents the water from flowing down, or sets it back so as to prevent 'or obstruct the working of his mill. Hodges v. Raymond, 9 316; Colburn v. Richards, 13 420; Elliot «. Fitch- burg Railroad, (10 C.) 64 191. [See Mm, and Mill Dam.] 184. One of several owners of a private way may make any reasonable repairs which do not interfere with the use thereof; but he cannot make any alteration of the course, or any change in the grade or surface, which makes it less convenient to any one having an equal right in the way. 404 EASEMENT, IV; V. Thomas v. Poole, (7 GO 73 83; Brown v. Stone, (10 G.) 76 61; Rich- ardson v. Pond, (15 G.) 81 387; Meehan v. Barry, 97 447; Killion v. Kelley, 120 47. 185. One who has acquired by prescription a right to use his neighbor's party-wall for his house, cannot place an additional burden upon the wall by building his house higher. McLaughlin v. Cecconi, 141 252. 186. An action for damages lies in favor of the owner of a right of way against the owner of the servient estate, or a stranger, who. by any obstruction, narrowing of the passage, change of grade, or other act, so interferes with his right of way as to render it less safe, convenient, or useful. Richardson e. Pond, (15 G.) 81 387; Meehan «. Barry, 97 447; Washburn ». Copeland, 116 233; Tucker v. How- ard, 122 529. 187. This rule is not confined to an obstruc- tion of the passage merely; an action lies against the owner of land for so obstructing a passage way as to prevent the plaintiff from depositing and hoisting merchandise, as he has a right to do, or from swinging his shutters. Richardson «. Pond, (15 G.) 81 387. 188. The owner of land may make such reasonable use of a way adjoining his land, as is made by others similarly situated. "What is a reasonable use of a way, public or private, depends upon the local situation and usage. O'Linda v. Lothrop, (21 P.) 38 292; Underwood v. Carney, (1 0.) 55 285; Fifty Associates v. Tudor, (6 G.) 72 255; Codman t>. Evans, (5 A.) 87 308. 189. What uses are reasonable in a populous town. O'Linda v. Lotbrop, (21 P.) 38 292; Underwood v, Carney, (1 C.) 55 285. 190. Laying out a public landing place upon the bank of a canal, pursuant to a statute, does not deprive the proprietors of the title to the land, or the right to surround it with a wall on all sides, except the canal, with a gate to be kept open when the canal is navigable. Huntington v. Locks & Canals, (9 G.) 75 154. 191 . One having a right of way over an- other's land to a particular lot of land, cannot enlarge it by extending it to other lots Davenport v. Lamson, (21 P.) 38 72. See, also, Greene v. Canny, 137 64 192. But the fact that he claims, without right, that it is appurtenant to another lot, does not make him a trespasser, as long as his use is justified by his actual right. Hayes* Di Vito, 141 233. 193. Where the owner of land, having a lane running through it, conveyed the land on the northerly side of the lane to A, with the privi- lege to use the lane, the lane being then closed, at the road, by a gate; and A subsequently ac- quired part of the land on the southerly side of the lane, nearest the gate, with the fee of the adjacent part of the lane; and B acquired the rest of the land on the southerly side of the lane, and the fee of the adjacent part of the lane; It was held, that B had no right to erect a gate across the lane on the line between his and A's land. Dickinson v. Whiting, 141 414 194. One having a right to maintain a drain acquired by prescription, cannot deepen or enlarge it. Cotton v. Pocasset M. Co (18 M»n, 54 429. v I - ) 195. One having the use of laiuLand a well cannot dig up the soil and build a pig pen over the well. Ganley «. Looney, (14 A.) 96 40. 196. One having the right to set the timbers of his shed " as it now stands " into a wall, can- not set therein the timbers of a new building of different height, dimensions, and uses. Ridgway v. Vose, (3 A.) 85 180 197. One having the grant of a mill with the appurtenances, etc., and the right of digging damming, and flowing, for the accommodation of the mill, cannot erect a trough on the grantor's land to conduct the water to the mill Miller «. Bristol, (12 P.) 29 550. 198. The erection of telegraph poles and wires upon a highway, does not create an addi- tional burden upon the land, taken for a high- way under the statute, for which the owner of the fee is entitled to additional compensation. Pierce v. Drew, 136 75. 199. One having a right to flow land used for pasturage, is not entitled to remove an ordinary farm fence, erected upon the servient tenement, while he is not exercising his right of flowage. Smiths. Langewald, 140 205. V. Remedies. LSee, also, ante, arts. 172, 186: Action ; Equity Jurisdiction, I; Injunction, I; II, (2) ; Miliand Mill Dam, I; Nuisance, I, (2); 11.1 200. The right to use land as a mill yard con- stitutes an easement, which equity will protect. Gurney v. Ford, (2 A.) 84 576. 201. Equity will interfere to protect an ease- ment, by injunction or otherwise. Badger v. Boardman, (16 G.) 82 559; , Parker v. Nightingale, (6 A.) 88 341; Linzee v. Mixer, 101 512; Dorr v. Harrahan, 101 531; Page «. Young, 106 313; Peck v. Conway, 119 546; WatuppaRes. Co. «. Mackenzie, 132 71. 202. But the mere interference with the pros- pect, by building a house with a bow window, in the absence of a grant or agreement, will not sustain a bill. Jenks. v. Williams, 115 217 203. Where the Commonwealth is interested for the protection of its grant or reservation, the equitable remedy is by information by m attorney -general. 1 1 n Attorney-General p. Gardiner, H< 492. 204. The court will not compel a plaintiff, whose right in a passage way is e ncroa 2'™ upon by a wall, to sell his right at a valuation. but will compel the wrong doer to restore we premises to their former condition, anawpaj the damages sustained pending the suit EAG3MENT, V— ELECTIONS, I, (1). 405 Tucker v. Howard, 128 361. See, also, Greene i>. Canny, 137 64. 205. Where a deed of part of the grantor's property contains restrictions as to the use of the property granted, neither a subsequent purchaser from the grantor, nor the grantor, for the benefit of other lot owners, can main- tain a bill to prevent a violation of the restric- tions, unless it appears that they were imposed for the benefit of the unsold property. Badger v. Boardman, (16 G.) 82 559; Jewell v. Lee, (14 A.) 96 145; Dana v. Wentworth, 111 291. LSee, also, Condition, I, (1).J 206. An action at law also lies to recover damages for any disturbance of an easement, which renders it less convenient or useful. Doane «. Badger, 12 65; Mendell t>. Delano, (7 Met.) 48 176; Richardson v. Pond, (15 Or.) 81 387; Pettingill v. Porter, (3 A.) 85 349. 207. In an action for obstructing a way, it is for the jury to say where the way was, if the evidence is conflicting, and the plaintiff can recover only for obstructing so much as they shall find to be the actual way. Pettingill v. Porter, (3 A.) 85 349. 208. In such an action, evidence that other persons, passing over the way, met with trouble and difficulty, is incompetent to affect the dam- agM ' Pettingill «. Porter, (3 A.) 85 349. 209. A tenant at will may sustain an action for interruption of a passage way, appurtenant to the land occupied by him. Foley v. Wyeth, (2 A.) 84 135. 210. The landlord may also maintain such an action, if he is damnified. Cushing ». Adams, (18 P.) 35 110. 211. A reversioner cannot sue for damages, unless there is an injury to the reversion. Kimball v. Mcintosh, 134 362. 212. A son, living with his mother upon her dower estate, cannot sue for damages for inter- ference with an easement appurtenant to that estate. Kimball v. Mcintosh, 134 362. 213. Under a declaration alleging that the defendant wrongfully stopped a drain, or ob- structed the plaintiff from entering, and exam- ining the drain, where it appears that the de- fendant refused to allow the plaintiff to enter and examine the drain, but no substantial dam- ages are claimed for that reason, it is not error to instruct the jury, that if there was no obstruc- tion, or if the plaintiff could have removed it on his own premises, the defendant is entitled to the verdict. Randall v. McLaughlin, (6 A.) 88 201. _ 214. Under a declaration, alleging the obstruc- tion of a way appurtenant to a close, damages may be recovered if it is appurtenant to any part of the close. Pettingill v. Porter, (3 A) 85 349. 215. Where the owner of the easement uses the land for a purpose not within the terms of his easement, he is liable in trespass quare clauwm, notwithstanding his right of entry. Davenport*. Lamson, (21 P ) 38 72; O'Linda «. Lothrop, (21 P.) 38 292; Appleton o. Fullerton, (1 G.) 67 186; Ganley «. Looney, (14 A.) 96 40. Eastern railroad. [See Appeal, art. 85; Corporation, X; Mort- gage, art. 1-31.1 Eaves. LSee Adverse Possession, art. 31; Boundary Line, arts. 73, 74; Deed, art. 253; Easement, art. b9; Landlord, etc., arts. 172, 352; Trespass, art. 64 ] Ecclesiastical law. LSee Bishop; Parish; Beligious Association. Ejectment. LSee Landlord and Tenant, VII, (3), Heal Action, V.] Election. LOf remedies, see Waiver. Of a widow to take a provision under a will, in lieu of dower or a distri- butive share, see Widow, III. For a case where a mortgagee was bound by his election to take a new mortgage, instead of reforming the old, sec Equity Jurisdiction, art. 150. For rules relating to an estoppel by an election, to take a benefit under a will, etc., see Estoppel, III, (2).] Elections and electors. I. Elections. (1.) Holding an election; return of votes. (2.) Ulegal voting. II. Electors. (1.) Qualifications. (2.) Remedies for refusing a vote. Ias to elections of county commissioners, see that title; of tax collectors, see Taxahon, VII, (1); of city and town officers, see Town and City, III, (1); of religious societies, see Parish ; Religious Asso- ciation, I, (5). As to officers of banks, see Bank, IV ; of insurance companies, see Insurance Com- pany 11,(1): of corporations generally, see Corpo- ration, IV. Constitutional provisions relating to elections, see Constitutional Law, III. (1); III, (£)■ For other rulings relating to the ejection, etc., of officers, see Mandamus, 1: Quo Warranto.) I. Elections. an election; return of <1.) Holding votes. 1. Printed votes are written votes, within the meaning of the constitutional provisions on that subject. Henshaw v. Foster. (9 P.) 26 312. 3. The statutes prescribing for the registry of voters are constitutional. Capen «. Foster, (12 P.) 29 485. 406 ELECTIONS AND ELECTOKS, I, (1), (2); H, (1). 3. The constitution does not allow an ad- journment of the second meeting for the choice of representatives, which it requires to be held on the fourth Monday of November, to a day later than that day. Opin. of the Justices, (23 P.) 40 547. 4. Selectmen have the power, even after the opening of a town meeting, to strike from the voting list the name of one who is not a legal voter. Humphrey v. Kingman, (5 Met.) 46 162. 5. After the voting has begun, they may, although it is not their duty, add the name of. a legal voter to the list; but they cannot hold a meeting for the correction of the list. Bacon v. Benchley, (2 C.) 56 100; Waite v. Woodward, (10 C.) 64 143. 6. The fact that a person's name is on the voting list, when the voting commences, is prima facie evidence of his right to vote. Harris ». Whitcomb, (4 G.) 70 433. 7. The provision in G. S., Ch. 7, § 3, that the polls should not be kept open after sunset, did not apply to elections for town officers. See, now, P. S., Ch. 7, §§ 1, 2, 3. Conlinfl. Aldrich, 98 557. 8. Under P. 8., Ch. 7, § 45, the governor has no power to recount the votes. Opin. of the Justices, 136 583; super- seding the rule under the former statutes as stated in Opin. of the Justices, 117 599. 9. Under P. S., Ch. 7, § 36, the board of aldermen of a city, upon a proper statement in writing, by ten or more qualified voters of a ward, filed as therein prescribed, has the au- thority to open the envelope containing the ballots, and recount them, including those cast for sheriff and district-attorney. Opin. of the Justices, 136 583. 10. Under the same section, a statement, filed by ten or more qualified voters, that they have reason to believe that the returns of the ward officers are erroneous, in regard to certain offi- cers mentioned, suffices. Opin. of the Justices, 136 583. C2.) Illegal voting. 11. The reception of illegal votes does not affect the validity of an election, if they did not change the result. Sudbury Par. e. Stearns, (21 P.) 38 148; Blandford Trustees «. Gibbs, (2 C.) 56 39; Christ Church «. Pope, (8 G.) 74 140. 12. Voting more than once at an election is a common law misdemeanor. See now St. 1876, Ch. 172, § 1; P. S., Ch. 7, § 57. Comm. ®. Silsbee, 9 417. 13. An indictment under the statute, alleging that a meeting of the qualified voters of the several wards of a city was holden on, etc., for the annual election of municipal officers, and that the defendant, "at ward one," in said city, on that day, "at the election aforesaid," com- mitted the offence, suffices. Comm. «. Desmond, 122 12. 14 Upon an indictment under the R. 8., for giving false answers to selectmen, it is not necessary to prove that they were duly chosen and qualified; it suffices if thev were nrtina See now P. S., Ch. 6, § 31. gl Comm. v. Shaw, (7 Met.) 48 52, 15. An allegation in such an indictment that a meeting of the inhabitants of a certain town was duly holden, is proved by evidence of holding a meeting of those qualified to vote Comm. v. Shaw, (7 Met.) 48 52. 16. Judgment will not be arrested for failure to allege that the senatorial district in question was within the Commonwealth. Comm. v. Shaw, (7 Met.) 48 52. 17. But where the allegation is that a false answer was given, with intent to procure the defendant's name to be placed upon the list, and his name was already there, the variance is fatal. Comm. ■». Shaw, (7 Met.) 48 52. 18. An admission, at the trial, by a person indicted for wilfully voting, knowing that he was not qualified, that he voted, is equivalent to an admission that he voted wilfully. See P. S., Ch. 7, § 55. Comm. v. Bradford, (9 Met.) 50 268. 19. Evidence that he consulted counsel, and was advised that he had a right to vote, is ad- missible in his favor, but not conclusive. Comm. ■». Bradford, (9 Met.) 50 268. 20. Evidence that he resided in another town till within seven months of the election, does not throw upon him the burden of showing that he resided six months in the town where he voted. Comm. v. Bradford, (9 Met.) 50 268. n. Electors. (1.) Qualifications. 21. As to property qualifications under the former constitution and statutes. Windham v. Portland, 4 384; Bridge B.Lincoln, 14 367. 23. As to inhabitants of incorporated planta- tions. Opinion of the Justices, 3 568. 23. Persons who reside upon territory ceded to the United States, do not thereby acquire any elective franchise as inhabitants of the town where such territory is situated. Comm. d. Clary, 8 72; Opinion of the Justices, (1 Met.) 42 580. See, also, Mitchell ii. Tibbetts, (17 P.) 34 298. 24. Whether a student at a college or other institution for instruction, gains or loses his domicil, is a question of intent, dependent upon the circumstances of such case. . . Putnam ^.Johnson, 10 488; Opinion of the Justices, (5 Met.) 46 587. 25. So as to removals to or from the State, or to or from a town. .„ „ ,_ M Lincoln ■». Hapgood, 11 850; Holmes v. Greene, (7 G.) 73 299. LSee Domiotl.1 26. Formerly a residence in the town for » year was requisite to qualify a man to vote ior ELECTIONS, II, (1), (2)— EMBEZZLEMENT. 407 representatives in Congress, although he had resided a year in the district, Williams v. Whiting, 11 424. 27. By article 3 of the amendments to the constitution, the disqualification of paupership is not required to have ceased to exist for any definite time, in order to entitle a man actually free from that disqualification, and otherwise qualified, to exercise the elective franchise. Opin. of the Justices, , 124 596. 28. One who has been supported by the town as a pauper, but is able to support himself and has found an employer, is no longer a pauper. Wilson v. Brooks, (14 P.) 31 341; Opin. of the Justices, 124 596. 29. A minor, having the other requisite quali- fications, becomes qualified to vote immediately upon arriving at full age. Opin. of the Justices, 124 596. 30. One otherwise qualified, who has been naturalized at any time before the election, is entitled to vote. Opin. of the Justices, 124 596. 81. One otherwise qualified, but who has been illegally exempted from taxation by the town assessors for two years, is not qualified, under article 3 of the amendments to the con- stitution, to vote for governor, etc. ' Opin. of the Justices, (11 P.) 28 538. 32. So as to one exempted on account of poverty for two successive years, before reach- ing the age of seventy. Opin. of the Justices, (5 Met.) 46 591. 33. Where a tax assessed to one is paid by another, without previous authority, but the payment is subsequently recognized, and he refunds or promises to do so, this is a payment by him which entitles him to vote. Humphrey v. Kingman, (5 Met.) 46 162. 34. But if he refuses to pay, on the ground that he is wrongfully assessed, and directs the collector to call upon the other, and after pay- ment by the latter refunds merely to secure the right to vote, this is not such a payment as en- titles him to vote. Humphrey v. Kingman, (5 Met.) 46 162. 35. After the general ' assessment has been made, and committed to the proper officer for collection, the assessors cannot assess a poll or other tax upon a person, for the purpose of en- abling him to vote; and, payment of such a tax cannot entitle him to vote. Opin. of the Justices, (1-8 P.) 35 575. (2.) Remedies for refusing a vote. 36. An action lies against selectmen, or town or parish clerks, for refusing to receive a quali- fied elector's vote, although without malice. Kilham v. Ward, 2 236; Gardner v. Ward, 2 244, note; Lincoln v. Hapgood, 11 350; Oakes v. Hill, (10 P.) 27 333; Keith v. Howard, (24 P.) 41 292. 37. In such an action against selectmen, the plaintiff must aver and prove all the facts which show that he was qualified, and that he fur- nished evidence thereof, and requested that his name might be inserted on the list of voters. Blanchardfl. Stevens, (5 Met.) 46 298. 38. And if the voter is challenged at the polls, an action will not lie without proof of malice, if the votei's own conduct was such as to in- duce the belief that he aband.ned his right to vote. Humphrey v. Kingman, (5 Met.) 46 162. 39. A vote is not refused, because a selectman insists on taking it, or on the voter depositing it in another box, until the former can examine whether the latter's name is on the list. Gates v. Neal, (23 P.) ■ 40 308 40. An action will not lie against selectmen, for refusing to put upon the list the name of one, who was not in fact a legal voter,.al hough he produced prima facie evidence that he was such; and the fact may be proved at the trial. Lombard v. Oliver, (7 A.) 89 155. 41. In such an action, the plaintiff may prove his own statements to the defendants as to his residence, although they were not under oath, and may testify that in leaving the town he did not intend to change his domicil. Lombard v. Oliver, (7 A.) 89 155. [See also. Domicil. 1 42. One, whose name is erased from the list before the voting begins, may maintain an action against the selectmen for erasing his name, but not for refusing his vote. Harris c. Whitcomb, (4 G.) ' 70 433; Lamed v. Wheeler, 140 390. 43. In such an action, oral evidence that the plaintiff's name is on the list is inadmissible, without notice to produce the list. Harris v. Whitcomb, (4 G.) 70 433. 44. As to the sufficiency of the declaration in such an action, see Larned v. Wheeler, 140 390. 45. Where selectmen, being in session to re- vise the list, refuse to put a qualified voter's name on the list, and inform him that they shall not do so, they are liable, although he does not offer his vote; unless they have reconsidered their determination, and placed his name on the list before the opening of the election, in which case they are not liable. Bacon v. Benchley, (2 C.) 56 100. See, also, Waite v. Woodward, (10 C.) 64 143. 46. An action lies against assessors for omit- ting to tax the plaintiff, knowingly and wilfully, and for the purpose of depriving him of his vote, but not otherwise. Griffin v. Rising, (11 Met.) 52 339. Embezzlement. f Aa to the form and sufficiency of the indictment, see Indictment, VIII, (39); VIII, (48). For addi- tional and analogous cases, see Larceny.] 1. Fraudulent conversion to one's use of money paid to him by mistake, is not embezzle- ment. Comm. v. Hays, (14 G.) 80 62. 2. Under the R. S. the offence was confined to a case where one, having in his possession, by virtue of his occupation or employment, money or property of another, fraudulently 408 EMBEZZLEMENT. converted it in violation of a trust reposed in him. Comm. ». Stearns, (2 Met.) 43 343; Comm. v. Libbey, (11 Met.) 52 64; Comm. d. Williams, (3 G.) 69 461; Comm. i). Young, (9 G.) 75 5; Comm. *. Hays, (14 G.) 80 62. 3. The statutes creating the crime were de- vised, for the purpose of punishing the fraudu- lent and felonious appropriation of property, which had been intrusted to the person by whom it was converted, in such a manner that the possession of the owner was not violated, so that the appropriator could not be convicted of larceny. And proof of embezzlement would not sustain an indictment for larceny. Comm. v. Simpson, (9 Met.) 50 138; Comm. ». King, (9 C.) 63 284; Comm. v. Berry, 99 428. 4. And if the goods were in the actual or constructive possession of thejmaster, when they were taken, the offence of the servant will be larceny, not embezzlement. Comm. v. King^ (9 C.) 63 284; Comm. v. O'Malley, 97 584; Comm. ». Berry, 99 428; C,omm. ». Davis, 104 548; Comm. «. Barry, 116 1. 5. Therefore, where the servant of a firm was directed by one member of the firm, to take money from him to another member of the firm, the possession remained in the master, and. the servant's appropriation of it was larceny, not embezzlement. Comm. ii. Berry, 99 428. See, also, Comm. v. O'Malley, 97 584. 6. If the treasurer of a town obtains money from a bank upon the note of the town, and uses the money to pay town charges, he cannot be convicted of embezzlement, although he does not account for the money, and the trans- action is part of a scheme to cover up an embezzlement made, or intended to be made, hy him. Comm. v. Bete, 140 279. 7. One who takes a note, for the purpose of procuring it to be discounted for another, and discounts it for his own benefit, embezzles it. Comm. ■». Butterick, lOO 1. See, also, Comm. v. Foster, 107 221. 8. One who takes from the maker of a note, as security for his liability as indorser there- upon, property which might be the subject of larceny, and after payment of the note by the maker, pledges it for his own debt, embez- zles it. Comm. d. Butterick, lOO 1. 9. Where goods are placed in the defendant's hands for a temporary purpose only, the owner remaining present, the owner's possession is un- changed, and appropriating it is larceny. Comm D.WMe, (5 G.) 71 83, Comm. v. O'Malley, 97 584. 10. An indictment for embezzlement by a "clerk, agent, or servant," will lie, although the defendant, an agent employed to sell goods and receive payment, is paid in part by com- missions on the sales. Comm v. Smith, 129 104. See, also, Comm. i>. Tuckerman, (10 G.) 76 173. 11. So where he receives payment for goods sold, by a check to his own order, and converts the proceeds, as the property in the check did not vest in him. Comm. «. Smith, 129 104. See also, Comm. v. Tuckerman, (10 G ) 7 ft 173. "' ° 12. It is no defence that the goods embezzled or stolen, or the proceeds of which were embez- zled, were intoxicating liquors, sold or kept for sale in violation of the law. Comm. •». Smith, 129 104. See, also Comm. v. Rourke, (10 C.) 64 397' Comm. v. Coffee, (9 G.) 75 139. For additional illustrations of these princi- ples, see Labceny. 13. It is not necessary to constitute embezzle- ment, that there should have been a demand of the money, or a denial of the receipt of it, or any refusal to account, or false account. Comm. v. Tuckerman, (10 G.) 76 173. 14. A mortgagor may be convicted of embez- zling the mortgage, although the full sum named therein is not due. Comm. d. Coricannon, (5 A.) 87 502. 15. But if the execution thereof was procured by fraud, he may take it wherever he finds it. Comm. «. Concannon, (5 A.) 87 502. 16. The taking, by a person employed by an incorporated bank, of a depositor's bonds, and pledging them for his own debt, is a fraudulent conversion within G. S., Ch. 161, § 39; P. S., Ch. 203, § 41, although he expected to return them before they were missed. Comm. v. Tenney, 97 50. 17. A treasurer of a railroad corporation is an " officer, agent, clerk, or servant," within G. S., §38; P. S.,§40. Comm. v. Tuckerman, (10 G.) 76 173. 18. One cannot be convicted under that sec- tion who took the money, supposing himself to be a partner. Comm. v. Bennett, 118 443. 19. Nor where the money had actually passed into the possession of the firm, by being placed in their money drawer, which the defendant did not control. Comm. », Bennett, 1 18 443. 30. An indictment under G S.,§39; P 8., § 41, against a bank officer, for fraudulently taking, etc., particular money, is not sustained by proof of his receiving the money from a de- positor, entering it in the proper aceount book of the bank, then subsequently erasing it, and altering the footing of the column, etc., if it. may reasonably be inferred, that this was done in pursuance of a fraudulent intent, conceived afterwards, and not when the money was paid in. Comm. v. Shepard, (1 A.) 83 575. 21. The words '-incorporated bank," ta that section, include a bank chartered since the en- actment thereof, and either under our laws or the U. S. national bank laws, and located here. Comm. v. Tenney, 97 50. See, also, Comm. v. Hall, 97 570. 22. The fraudulent conversion of depositors' property in a U. S. national bank, is not pun EMBEZZLEMENT— ENGINE-MEN. 409 ishable by the U. S. statutes, but it is punish- able by the section designated. Comm. v. Tenney, 97 50. 23. But embezzlement of the bank's property- is punishable only in the U. S. courts; and an accessory is not punishable in any court. Comm. v. Felton, 101 204 34. The offence punishable by. the TJ. # S. statute as embezzlement, may be also punish- able as larceny, under the State laws. Comm. v. Barry, 116 1. 35. An indictment against a bank officer for embezzling property belonging to, or deposited /in the bank, must charge the specific act, and the evidence must sustain the specific charge; and one offence only can be alleged in one count. Comm. v, "Wyman, (8 Met.) 49 247. 26. For other rulings under the R. S., inap- plicable under the G. 8. and the P. S., see Comm. v. Wyman, (8 Met.) 49 247. 27. One who embezzles several articles may be indicted and convicted for each separately. Comm. v. Butterick, 100 1. 38. Previous acts of embezzlement may be proved upon the trial of an indictment for em- bezzlement, but only to show the intent; and it is error to admit such evidence, unless the jury are properly instructed as to its effect. Comm. v. Tuckerman, (10 G.) 76 173; Comm. v. Shepard. (1 A.) 83 575; Comm. o. Bennett, 118 443. 29. Where one act is charged, and several are proved, the court may allow the prosecution to elect, on which it will rely, as the offence charged, and which it will treat as evidence only. Comm. v. Bennett, 118 443. 30. Where the defendant was convicted upon' a count charging him with embezzling $11, while employed by A; and the proof was that, as As clerk, he sold goods to B, who paid him theTefor $61, which the defendant testified that he either put in the money drawer, or gave to the bookkeeper, but the defendant entered a credit of only $50; and the bookkeeper was asked by the government if his cash ran over on that day, and answered that it did not, but no books or accounts were introduced to show the cash balance; it was held that the defendant could not maintain an exception. Comm v, Sawtelle, 141 140. 81. Where the defendant, charged with em- bezzling U. S. treasury notes and bank bills, was_ intrusted with a check for the purpose of •paving his employer's note, without any direc- tion as to the mode of doing so, although it was customary to pay such notes by checks; and while the check was in his possession, he conceived the intent to take his employer's funds, and drew the money on the check; the question of variance was properly left to the jury. Comm. v. Gateley, 126 52. 32. On the trial of an action, founded upon an allegation in the nature of a charge of embezzlement, by clandestine sales and fraudu- lently taking money, evidence that the defend- ant was insolvent when he entered the plaintiff's Vol. 1—62 employment, and has since become worth more than his aggregate salary, is competent. Boston & W. Railroad v. Dana, (1 G.) 67 83. See, also, Comm. v. Montgom- ery, (11 Met.) 52 534. 33. And the declarations of the defendant concerning Ms property and business, made to third persons, are inadmissible in rebuttal. Boston & W. Railroad v. Dana, (1 G.) 67 83. 34 On the. trial of an indictment for embez- zlement, the declarations of a deceased person, alleged in the indictment to have been the owner of the property, are inadmissible to dis- prove his title. Comm. •». Sanders, (14 G.) 80 394. 35. On the trial of an indictment of the mortgagor for embezzling an unrecorded mort- gage, evidence is admissible, that the defendant has since executed and put upon record, a deed of the property, although it is not offered till the close of the evidence for the defence. Comm. i). Concannon, (5 A.) 87 502. 36. For various rulings, as to an indictment for embezzlement against the treasurer of a savings bank, and the sufficiency of the evidence to sustain it, see Comm. ■». Pratt, 137 98. Embracery. [See New Trial, III.] Emblements. LSee Landlord and Tenant, IV, (4).] Eminent domain. [See, also, Boston; Bridge, II, (1) ; Burial, II; ONSTITUTI0NAL LAW, III, (5); HIGHWAY; MILL and Mill Dam; Nuisance, III, (3;; Railroad; School; Town and City, VI.] 1. The attorney-general may maintain an information in equity to restrain a corporation exercising the right of eminent domain, under a power delegated to it by the legislature, from any abuse or perversion of its powers, which may create a nuisance, or injuriously affect or endanger the public interests. Att'y-Gen'l v. Jamaica P. Aqueduct, 133 361. [See, also, Equity Jurisdiction, I.] Engineer. [Decision of, when made conclusive by building contract, etc.; Arbitration, art. 22; Contract, art. 347.] Engine-men ; engine company. [See Fire.) 410 ENLISTMENT— EQUITY JURISDICTION, I, (1). Enlistment. [See Militia, HI, (2) J United States Forces, 1.1 Entail. [See Deed , III. (3) ; Devise and Bequest, III, (3) ; Estate tail.] Enticing. LWoman for prostitution, see Bawdy House. Servant, see Conspiracy art. 39; Master and Servant, IV.l Entry. [See Adverse Possession, II; Condition, II, (3); Forcible Entry and Detainer; Mortgage, v, (3); Real Action.] Equitable conversion. [See, also. Devise and Bequest; Executor and Administrator; Trust.] 1. Where land held in trust is taken by a city to widen a street, the damages awarded are taken to be real property for the purposes of the trust. Simonds v. Simonds, 112 157- 2. When it appears from a will, that the inten tion of the testator was to convert real property into personal property, the law will consider the conversion as actually made, at the time of the testator's death, and treat the property as personalty. Hammond v. Putnam, 110 232 3 So where a will directs the sale of real property, and the division of the proceeds among the children, and one child dies after the testator, but before the sale, that child's share goes to his administrator, not to his heirs. Hammond v. Putnam, HO 232. 4. And vice versa, where land is devised for life . to the testator's widow, with remainder over to the children and the heirs of their bodies, and it is sold after the testator's death, either under a power in the will, or by authority of the legislature, the income is to be paid to the tenant for life, and at her death the money goes absolutely to the then tenant in tail. Holland v. Adams, (3 G.) 69 188. See, also, Holland v. Cruft, (3 G.) 69 162. 5. But where devised land, which had vested in the devisee, was sold by the executor to pay the testator's debts, and bought in by himself, and the heirs of the devisee afterwards affirmed the sale, it was held, that in the distribution of the testator's estate, the administrator, not the heirs of the devisee, was entitled to the balance of the proceeds. Grout «. Hapgood, (13 P.) 30 159. [As to the conversion, in equity, of a deed into a mortgage, see Equity Jurisdiction. II, (12) ; Mort- gage, I, (2); I, (4).] Equity jurisdiction. I. General Rules. (1.) Equity jurisdiction generally. (2.) As affected by a remedy at law. (3.) Damages. II. Particular Heads. (1.) Redemption; foreclosure. (2.) Trusts; bill for instructions. (3.) Specific performance. (See that title.) (4.) Redelivery of chattels detained, etc. (5.) Contribution. (6.) Multiplicity of parties, with distinct rights, etc. (7.) Copartners; joint tenants; tenants in common. (8.) Joint trustees; co-executors; co-adminis- trators. (9.) Waste and nuisance. (See those titles.) (10.) Account, including agency. (11.) Equitable attachment; creditor's bill. (12.) Fraud: fraudulent conveyance; convey- ance in the nature of a mortgage. (13.) Accident and mistake; reformation of instrument. (14., Discovery. (15.) Property fraudulently conveyed by debtor. (16 ) Injunction. (See that title.) (17 ) Interpleader. (See that title.) (18 ) Quieting title, (See that title.) (19.) Partnership. (See that title.) (20.1 Corporations. (See Bank; Bridge; Corporation: Insurance Company; Rail- road: Turnpike.) For other cases relating to general jurisdiction in equity, see Equity Pleading and Practice; Supreme Judicial Court . For equitable Jurisdic- tion, proceedings, and relief, in particular cases, see Agency; Arbitration: Bank; Charity; Con- tract; Corporation; Devise and Bequest; Di- vorce ; Dower ; Estoppel ; Executor asd Administrator; Fraud; Guardian and Ward; Husband and Wife; Infant; Injunction ; In- surance Company: Interpleader; Joint tenants and Tenants in Common; Lunatic Mortgage; Nuisance: Partition; Partnership; Quietinq Title; Receiver; specific Performance; bub- rogation; Surety; Trust; Trustee and Cestui que Trust; Waste; Water Course; Will.) I. General Rules. [L. 1877. Ch. 178, § 1; P. S., Ch .151, § 4.] (1.) Equity jurisdiction generally. 1 For various ruiings, as to the extent of the jurisdiction and powers of the supreme judicial court in equity, now superseded by or incorpo- rated into the P. S . see R(W , jones v. Boston Mill. (4 P.) 21 507, Buck* Dowiey(16G) 82 555; Rogers «. Ward. (8 A.) ' 90 387. S. The court has no jurisdiction of cases of libel, slander, oi fa,se representations, as to w character or quality of the plaintiff s proper^ , or as to his title thereto, which involve no breach of trust or of contract. EQUITY JUEISDICTION, I, (1), (2). 411 Boston Diatite Co. % Florence M. Co., 114 69. 3. Its jurisdiction to restrain the use of a name or a trademark, or the publication of letters, rests upon the plaintiff's property there- in, and the defendant's unlawful use thereof. Boston Diatite Co. v. Florence M. Co., 114 69; Whitehead v. Kitson, 119 484. 4. Where the court is powerless to enforce an essential part of a contract, it will decline to enforce any part of it. Kansas Cons. Co. v. Topeka Railroad, 135 34. 5. A court of equity will not, in general, re- lieve against the consequences of mere ignorance of the law. Guckian v. Riley, 135 71. 6. A contract which is not a simple debt, or a mere personal obligation to pay money from the party's general funds, but whereby the party makes himself a trustee or a quasi trustee, of a specific identified fund, which it is alleged that he has received and not paid over, creates a fiduciary relation, which founds an equitable jurisdiction for an accounting, as well as cross demands, and complexity of accounts. Pratt «. Turtle, 136 233. See, also, Badger v. McNamara, 123 117. 7. Where a bill was filed, to compel the indorsement of insurance money upon a mort- gage, and the cancelment of the mortgage to that extent, the court held, that inasmuch as it was not a bill either to redeem the mortgage, or to enforce a trust, or for the cancellation of a written instrument, and it did not set forth any fraud, collusion, or conspiracy against the plaintiff's rights, the case was not brought within any known head of equity jurisdiction, and a demurrer thereto was sustained, and the bill dismissed. Stevens v. Hayden, 129 328. See, also, Walker v. Brooks, 125 241. 8. The attorney-general cannot maintain a bill in equity to ■ redress or prevent a private wrong. Atty.-Gen'l v. Salem, 103 138. [For rulln gs upon the jurisdiction in equity, to pre- vent illegal acts by a corporation, acting under a delegation by the legislature of the right of eminent domain, seepost, I, (2). 1 9. An instrument, made for the purpose of giving effect to an illegal agreement, cannot be enforced in equity. Blasdel «. Fowle, 120 447. 10. And the court will not entertain a bill for an account of profits, resulting from illegal trading with the inhabitants of states in insur- rection against the United States, although the illegal character of the transaction does not appear upon the face of the bill, and is not set up in the answer. Snell o. Dwight, 120 9; Dunham v, Presby, 120 285. 11. The court has no jurisdiction to correct or vacate an award. Bean ®. Farnam, (6 P.) 23 269; Mick-' les ». Thayer, (14 A.) 96 114. 12. Where a bill is filed for performance of an agreement, which provides for the determi- nation of disputed matters by arbitration, it is not necessary to allege that the defendant has refused to arbitrate, and he cannot defeat the jurisdiction by alleging that he has been and is willing to arbitrate. Wood «. Humphrey, 114 185; Pearl v. Harris, 121 390. 13. Semble, that the court has no power to issue a writ of supplicamt. Adams ». Aaams, 100 365. 14. It had inherent power, before the act of 1877, to grant a ne exeat; and upon the defend- ant's petition for a discharge therefrom as a poor debtor, it will proceed for that purpose substantially as if the defendant had been arrested at law. Rice ». Hale, (5 C.) 59 238. 15. The court has no jurisdiction to make a personal decree against a defendant, who has never been an inhabitant of this Commonwealth, and is not served with process here. Moody v. Gay, (15 6.) 81 457. See, also, Spurr v. Scoville, (3 C.)- 57 578; Felch v. Hooper, 119 52. 16 But where the plaintiff is entitled to re- lief affecting property within the Common- wealth, the court will charge the property with a trust, and afford him relief by means thereof, if the defendant cannot be served with process. Felch v. Hooper, 1 19 52. 17. And nonresidence does not affect the ju- risdiction, if the defendant is served with pro- cess here Dooley v. Watson, (1 G.) 67 414; Pingree a. Coffin, (12 G.) 78 288.' 18. So where he has appeared: but a special appearance to object to the jurisdiction, will not give jurisdiction. Walling v. Beers, 120 548. See, also, Pingree t>. Coffin. (12 G.) 78 288. 19. And where a court of equity has obtained jurisdiction of the person of a defendant, it may compel or restrain a conveyance by him of his property, either real or personal, situated without the Commonwealth. Dehon i>. Foster, (4 A.) 86 545; De- hon ». Foster, (7 A.) 89 57; Carver v. Peck, 131 291. 20. The jurisdiction of the court is not to be invoked in behalf of trifling claims and frivo- lous controversies, and the court will, ex proprio motu, decline to entertain suits of that char- acter. Cummings v. Barrett, (10 C.) 64 186; Smith v. Williams, 116 510; Chapman v. Banker, etc., Co., 128 478. [As to the effect of laches upon the right to main- tain a Dill, see Laches ■ Specific Performance.] (2.) As affected by a remedy at law, [For runngs relating to the power of the court to restrain proceedings at law. see Injunction, 1 1, (1).} 21. v The statutory proviso, restricting the ex- ercise of equity to a case where the party has not a plain, adequate, and complete remedy at •aw, is a test in each particular case to deter- mine whether jurisdiction in equity shall be en- tertained. Jones v. Newhall, 115 844. 412 EQUITY JUKISDICTION, I, (2). 22- If the only relief, to which the plaintiff would be entitled in equity, is the same in measure and kind which he might obtain at law, he has no standing in equity, unless his remedy at law is doubtful, circuitous, or com- plicated by a multiplicity of parties having dif- ferent interests. Jones 0. Newhall, 115 244. See, also, Charles River Bridge 0. Warren Bridge, (6 P.) 23 376; Sears v. Boston, (16 P.) 33 357; Gill 0. Bicknell, (2 C.) 56 355; Hilliard v. Allen, (4 C.) 58 532; Jacobs v. Peterborough, etc., Rail- road, (8 C.) 62 223; Pratt 0. Pond, (5 A.) 87 59; Howe v. Nickerson, (14 A.) 96 400; Glass 0. Hulbert, 102 24; Ward 0. Peck, 114 121; Suter v. Matthews, 1 15 253. 23. In contracts for the sale of personal property, jurisdiction in equity is rarely enter- tained, because generally damages will prove an adequate compensation for the breach there- of. Jones'0. Boston Mill, (4 P.) 21 507; • Jones 0. Newhall, 115 244. 24. But compensation in damages has never been regarded as such adequate indemnity, for the nonf ulfilment of a contract relating to real property, as to justify the refusal of relief in equity. Jones 0. Newhall, 115 244 25. And where the character of the property is such, that the loss of the contract will not be fairly compensated in damages, relief may be had in equity, whether it relates to real or per- sonal property. Clark v. Flint, (22 P.) 39 231; Jones 0. Newhall, 115 244. 26. Semble, that the insolvency of the defend- ant deprives the plaintiff of an adequate remedv at law within the rule. Clark 0. Flint, (22 P.) 39 231 27. A sufficient remedy for damages, actually sustained, will not deprive the court of jurisdic- tion, in a controversy which looks to future infringements of the plaintiff's rights. Bemis 0. Upham, (13 P.) 30 167; Bardwell 0. Ames, (22 P.) 39 333; Hill v Sayles, (12 C.) 66 454. 28. The plaintiff must affirmatively show in his bill that he has not a sufficient remedy at law, failing which his bill is demurrable. Pool 0. Lloyd, (5 Met.) 46 525; Woodman Saltonstall, (7 C.) 61 181; Pratt v. Pond, (5 A.) 87 59; Clark 0. Jones, (5 A.) 87 379; Metcalf v. Cady, (8 A.) 90 587; MiU River, etc., Ass'n v. Claflin, (9 A.) 91 101; Comm. v. Smith, (10 A.) 92 448; Bassettfl. Brown, lOO 355; Bassett 0. Brown, 105 551. ISee, also, Equity Pleading and Practice, I, 29. But after answer, the objection cannot be Clark v. Flint, (22 P.) 39 231; Rayn- ham Cong. Soc. 0. Raynham Trustees, (23 P.) 40 148; Mass. Gen. Hospital 0. State Ass. Co., (4 G.) 70 227; Tarbell «. Bowman, 103 341; Creely 0. Bay State Brick Co., 103 514. 30. Nor can it be first taken at the hearing Russell v. Loring, (3 A.) 85 121. 31. Nor in a supplementary answer Jones 0. Keen, 115 170. 32. Nor, if it was Lot taken at the hear- ing, where the case is reported for the determi. nation of the full court. Dearth 1>. Hide & L. Bk., 100 540' Page n. Young, 106 313. 33. Nor afte- proceeding without objection, to a hearing upon the merits before a master. Parker v. Nickerson, 137 487. 34. For various practical illustrations of the foregoing principles, see the cases above cited, and Law 0. Thorndike, (20 P.) 37 317- Conant v. Kendall, (21 P.) 38 36; Ho- bart«. Andrews, (21 P.) 38 526- Cart- wright 0. Clark, (4 Met.) 45 104; Pool 0. Lloyd, (5 Met.) 46 525; Roots. Ban- croft, (10 Met.) 51 44; Lowell t Daniels, (2 C.) 56 234; Lowell Meeting Ho. v. Butler, (2 C.) 56 597; Blood i. White, (3 C.) 57 416; Mather v. Bennett, (9 C.) 63 175; Curtis 0. Mansfield, (11 C.) 65 152; Adams v. Palmer, (6 G.) 72 336; Peabody 0. Harvard Coll., (10 G.) J76 283; Atwood 0. Fisk, 101 363; Frue v. Loring, 120 507, Walker 0. Brooks, 125 241; Anthony Valen- tine, 130 119; Brigham 0. HomeL. Ins. Co., 131 319; Allen v Storer, 132 872; Dole 0. Wooldredge, 135 140; Kramer 0. Carter, 136 504. 35. Upon the same principle, equity has no jurisdiction to direct partition. Husband 0. Aldrich, 135 317. 36. The jurisdiction cannot be defeated, if the existence of a sufficient remedy at law ap- pears from facts first disclosed at the hearing. Dillaway 0. Butler, 135 479. 37. The rule applies to suits by the Com- monwealth, as well as by individuals. Comm. 0. Smith, (10 A.) 92 448; Atty.-Gen'l 0. Tudor Ice Co., 104 239. 38. But the attorney-general may maintain an information in equity, to restrain a corpora- tion, exercising the right of eminent domain, under statutory authority, from any abuse or perversion of the power, which may create a public nuisance, or endangers the public > inter- ests, although there is also a remedy by indict- ment, or by statutory proceedings instituted by the board of health. Atty.-Gen'l 0. Jamaica Pond Aqueduct, 133 361. See, also, Dist.-Atty. «. Lynn and B. Railroad, (16 G.) 82 242; Atty.- Gen'l 0. Cambridge, (16 G.) 82 247; Atty.-Gen'l 0. Tudor Ice Co., 104 239. 39. And a private individual, who suffers a peculiar injury, may maintain a bill in a like case, and is not put to his writ of entry or action of tort. „„ Hart v. Jamaica Pond Aqueduct, 1A> 488. See, also, Fall R. I. Works «. OW Colony, etc., R. R., (5 A.) 87 221; Creely 0. Bay State Brick Co., If** 514; Winslow «. Nayson, 113 4U i Cadigan 0. Brown, 120 493. [See, also, Nuisance, II; Specific Perform- ance, I.] EQUITY JURISDICTION, I, (2), (3); II, (1), (2). 413 40. The rule that equity will not interfere where there is a sufficient remedy at law, applies to cases where the remedy may be obtained in a probate court. "White v. Chapin, 134 230; Foster «. Foster, 134 120. See, also, Jenison b. Hapgood, (7 P.) 24 1; Wilson v. Leishman, (12 Met) 53 316; Sever v. Russell, (4 C.) 58 513; Hathaway ». Thayer, (8 A.) 90 421; Morgan ». Botch, 97 396; Southwick v. Morrell, 121 520. 41. And upon appeal frcm the probate court, the supreme judicial court will not exer- cise its general equity jurisdiction. Grinnell v. Baxter, (17 P.) 34 383. 42. A claim to the rights of a child and heir in an intestate's estate, under an adoption, and under an indenture between his father and the intestate and his wife, cannot be determined upon a hill in equity; as to the realty, his remedy is hy action at law; as to the personalty, he must apply to the probate court for a distributive ' Ross v. Ross, 123 212. 43. And where ancillary letters have been granted to the plaintiff here, and his account has been settled in another state, equity here has no jurisdiction to construe the will, and marshal and distribute the estate. Emery v. Batchelder, 132 452. 44. The same rule extends to proceediags in insolvency, except in the cases where a super- visory power is granted by statute; and an in- solvent cannot maintain a bill against his assignee for misconduct: he must apply for relief to the court of insolvency Lincoln v. Bassett, (9 G.) 75 355. LForfurther illustrations of these principles, see, also, various cases cited under the different heads inII,pos«.l (3.) Damages, [For the rules In suits for specific performance, see Specific Performance, in/] 45. Upon the hearing of a bill to restrain the defendant from excavating on his land, so as to let the sea water upon the plaintiff's land, where the plaintiff had recovered damages at law, the hill was amended by adding a prayer for dam- ages, and the case was recommitted to the master, to assess the damages sustained by the plaintiff, which he could not have recovered in the action at law, and damages for such future injuries as would probably result from the excavations. Mears v. Dole, 135 508. . 46. In similar cases, damages may be allowed tor the cost of structures to prevent future injuries. Mears e. Dole, 135 508. 47. Where the defendant, by false and fraudu- lent representations, induced the plaintiff to enter into partnership with him, equity has jurisdiction to cancel the articles, and restrain xne defendant from using the name of the plain- tut as a partner; and having obtained jurisdic- tion tor that purpose, it may administer com- plete relief in the same suit, by awarding dam- Smith t>. Everett, 126 304. For a similar case, and a like ruling there- upon, see Richards ». Todd, 127 167. 48. Where a bill is brought in good faith, and the specific relief sought is defeated by a disability of the defendant to comply with the decree, caused after the suit, or after the date of the agreement relied upon, and the defect is developed by the answer or upon the hearing, the court will retain the bill, and award damages. Milkman v. Ordway, 106 232; Tain ter e. Cole, 120 162. 49. But where the defect was inherent in the plaintiff's case, although he was ignorant of it, but could have ascertained it by reasonable dili- fence, the bill will be dismissed without amages. Tainter «. Cole, 120 162. 50. Where a bill to restrain the maintenance of a dam, etc., did not contain a prayer for damages, and the plaintiff did not seasonably ask for damages before the master, and it ap- peared that the master's report did not include special damages, it was held, that damages could not be given in the decree, and the plaintiff must seek to recover them at law. Potter v. Howe, 141 357. 51. For other rulings, as to where damages will be given in equity, see Franklin ®. Greene, (2 A.) 84 519; Creelyfl. Bay State Brick Co., 103 514; Winslow v. "Nayson, 113 411; Cheney v. Gleason, 125 166. II. Particulak Heads. (1.) Redemption; foreclosure. [P. S., Ch. 151, 8 3, cl. 1. As to redemption and foreclosure of mortgages, see Chattel Mortgage, IV; Mortgage, IV. As to redemption from a tax sale, see Taxation, VII, (5), (B.) As to redemption from execution, see Execution. V.~\ 52. A bill in equity lies, in favor of a second- mortgagee of chattels, against a prior mortgagee, and the assignee in insolvency of the mortgagor, alleging that the prior mortgagee has given notice of his intention to foreclose; that the assignee has taken possession of and retains the property, and denies the validity of the first mortgage; and thereupon offering to redeem, the first mortgage, if it is valid, and possession can be obtained; and praying that the validity of the first mortgage may be determined, and. that if valid he may redeem, and that the assignee deliver over, etc. Dillaway v. Butler, 135 479. 53. Where, in such an action, it appears that the assignee has sold the property for more than enough to pay both mortgages, the court will decree that he pay the plaintiff. Dillaway e. Butler, 135 479. <2.) Trusts: bill for instructions. LP. S., Ch. 151, § 2, el. 2. As to equity jurisdiction respecting' trusts generally, see Trust; Trustee and Cestd i Que Trust ; respecting charitable trusts, see Charity.1 54. Wherever there are conflicting claims by different parties to the same property or rights,, under the instrument by which a trust is ere- 414 EQUITY JUEISDICTION, II, (2), (3), (4). ated, the trustee is entitled to the aid and direc- tion of the court, upon a bill framed for that purpose. Tread well v. Cordis, (5 G.) 71 341; Fairbanks u Belknap, 135 179. See, also, Dimmock v Bixby,(20P.) 37 368. 55. And where there are conflicting claims to the trust estate, the trustee may file a bill for instructions against all the parties, in the nature of a bill ot interpleader, and thereupon procure the direction of the court, and be protected in the disposition of the property in his hands. Treadwell v. Salisbury M. Co., (7 G.) 73 393; Fairbanks ». Belknap, 135 179. 56. Trustees under a will have the right, by bill, to seek the direction of the court, upon questions involving the construction of the will and their duties under it. Treadwell v. Cordis, (5 G.) 71 341; Taggard v Piper, 118 315; Hyde v. Wason, 131 450 57. And where the will is so ambiguous, that the trustee is unwilling to take the responsibil- ity of action under it, it is his duty to file such a bill, not to render a fictitious account to the probate court, for the purpose of settling the rights of those interested. Lincoln v Aldrich, 141 342. 58 But a trustee cannot maintain such a bill, as to questions in which he has no interest, or which can be settled in the probate court; such as the fitness of a guardian, or the sufficiency of his bond. Hyde v. "Wason, 131 450. 59. An administrator cannot maintain a bill for instruction as to the distribution of the pro- ceeds ol real property, sold under a license of the probate court, until the surplus, remaining upon the final settlement of his accounts in that court, has been ascertained. Muldoon v. Muldoon, 133 111. 60. Nor by reason of obligations assumed by him to those interested in the estate, and not incidental to the performance of his legal duties as administrator. Muldoon v Muldoon, 133 111. 61. Qu , whether a bill will ever lie for in- structions, as to the distribution of the assets of an intestate. Muldoon v. Muldoon, 133 111. See Bigelow v Morong, 103 287. 62. An executor cannot maintain a bill for instructions, as to whether he shall pay over money to a trustee, without the latter having given a bond, as the question may be tried in an action at law by the trustee against the executor. Dodge v. Morse, 129 423. 63. For other rulings, as to the right of an executor or administrator to maintain a bill for instructions, see Stevens v. Warren, 101 564; Parker v. Parker, 119 478, Morse v. Stearns, 131 389; Chase v. Chase, 132 473; Wilbur ». Maxam, 133 541. 64. A. trustee cannot maintain a bill for in- structions, as to whether the devise of a remain- der is void for remoteness, until the death of the person entitled to the income for his life. Minot v. Taylor, 129 160. See, also, Treadwell v. Salisbury M. Co., (7 G.) 73 o9o. 65. It is not essential to the right of a trustee to maintain a bill for instructions, that he should have the legal estate; a power, coupled with a trust, suffices. Drury v. Natick, (10 A.) 92 169, 66. A trustee cannot maintain a bill for in- structions, in the nature of an interpleader, upon a question relating to the past administration of the trust. Sohier v. Burr, 127 221. 67. One, who is administrator with the will annexed and also trustee, may maintain a bill for instructions, as to the capacity in which he is to account for certain moneys. Putnam ». Collamore, 109 509. 68. And the bill will not be demurrable because it does not set forth the entire will, if it sets forth all that is material to the questions raised. Putnam ». Collamore, 109 509. 69. A trustee under a residuary legacy and devise cannot maintain a bill for instructions where he has received no personalty, and it is yet uncertain whether the realty will not be re- quired for payment of debts and legacies. Proctor v. Heyer, 122 525. [For additional and parallel cases, see Inter- pleader.! (3.) Specific performance. [P. S., Ch. 151, § 2, el. 3. See Specific Pekfobm- ance.1 (4.) Redelivery of chattels detained, etc. LP. S., Cll. 151, §2, cl. 4.1 70. In order to maintain a bill under B. S., Ch- 81, § 8; G. S.. Ch. 113, § 2; P. 8., Ch. 151, § 2, cl. 4, the plaintiff must show that he has a right to maintain replevin, and that the action cannot be effectually prosecuted by reason of the concealment, etc. , of the property. Clapp v. Shepard, (2 Met.) 43 137. [As to the cases where those circumstances con- cur, see Replevin/] 71. Therefore, an equitable assignee of a chose in action cannot maintain the bill against the legal owner. Clapp v. Shepard, (2 Met.) 43 127. 72. Where the bill will lie under the statute, the right of the plaintiff to bring trover or assumpsit is no objection to the jurisdiction. Clapp v. Shephard, (23 P.) 40 238; Clapp v. Shepard, (2 Met.) 43 127. 73. Where the bill is for the discovery and redelivery of a note, it is not essential to aver that the discovery is material to prove the case; if it appears that the facts, as to which a dis- covery is required, are material to the rehel, that suffices. „ Clapp 8. Shephard, (23 P.) 40 228. 74. If the bill shows that the note was pay- able to another person, the plaintiff must speci- ally set forth the facts showing that he is tne owner. _ no0 Clapp®. Shephard, (23 P.) .40 238. EQUITY JUEISDICTION, II, (4), (5), (6). 415 75. But a general allegation of ownership and right of possession suffices, with respect to a horse, or a similar chattel. Strickland v. Fitzgerald, (7* C.) 61 530. 76. The bill lies in favor of an administrator to procure notes, the indorsement and delivery of which were procured from the intestate by the defendant's fraud, and to restrain the defendant from suing thereon, or parting with the possession. Sears v. Carrier, (4 A.) 86 339. 77. The makers »of the notes may also be made parties. Sears v. Carrier, (4 A.) 86 839. 78. But if the plaintiff has commenced an action at law to recover the value of the notes, he must elect which remedy he will pursue, and discontinue the other. Sears «. Carrier, (4 A.) 86 339. 79. It is essential to aver that the subject of the hill is secreted or withheld, so that it cannot be replevied. Travis v. Tyler, (7 G.) 73 146. 80. But not that a writ of replevin has been taken out. Gibbens v. Peeler, (8 P.) 25 254; Mills v. Gore, (20 P.) 37 28. 81. And the bill will not be defeated by an offer, after suit brought, lo produce the prop- erty, so that it can be replevied. Gibbens v. Peeler, (8 P.) 25 254. 82. Notes, mortgages, and other securities for debts, and deeds, are "goods and chattels " within the statute. Gibbens v. Peeler, (8 P.) 25 254; Mills v. Gore, (20 P.) 37 28; Clapp v. Shephard, (23 P.) 40 228. See, also, Travis v. Tyler, (7 G.) 73 146. 83. So is a policy of insurance. Brigham v. Home Ins. Co., 131 319. 84. A bill will lie, in favor of receivers of a hank, against one in possession of a note, se- emed by a mortgage, to restrain a sale under the mortgage, and compel a surrender of the securities, on the ground that they were ob- tained by fraud. Holden ». Hoyt, 134 181. See, also, Holden v. Upton, 134 177. [These cases decided without reference to the statute.] ., 85 - Tie Ml will lie without an allegation that they are detained or secreted, so that they cannot be replevied, simply on the ground that replevin is an inadequate remedy. Holden o.Hoyt, 134 181. See, also, Bngham «. Home Ins. Co., 131 319; Holden v. TJpton, 134 177. 86. Where the term of a lessee has been sold under execution, a bill will not lie against him, to compel him to deliver up to the purchaser counterparts of his lease, and sub-leases, although they are recorded, the remedy at law being sufficient. McNeil v. Ames, 120 481. statat \ CSSe decided ^fooTit reference to the (5.) Contribution. [P. S., Ch. 151, 5 2, cl. 5. For the action at law, see Assumpsit, III, (3). As to contribution between heirs, devisees, legatees, and next of kin, see Devise and Bequest, IV ; Heirs, Devisees, etc., II. For other cases of contribution; see Corporation, V; JOINT LIABILITY, II, (2) ; JOINT TENANTS, ETC., I, (3); II ; Partnership, II, (4) ; IV, (1) ; Surety, III, (3).l 87. A bill in equity is the proper remedy for contribution. And in equity, where several are liable, and one pays the whole debt, his claim for contribution for the whole debt is against the others, who are solvent, and within the ju- risdiction; and he is not compelled to look to his insolvent or absent associates, for their pro- portions of the debt. Cary ». Holmes, (16 G.) 82 127; Whitman v. Porter, 107 522; Whit- comb v. Converse, 119 38. 88. At law, the rule is, that where one pays the whole debt, he has an action against each of his associates for the defendant's aliquot part, without reference to the solvency or insol- vency of the others. Bridgen v. Cheever, 10 450; Wood v. Leland, (22 P.) 39 503; Cary v. Holmes, (16 G.) 82 127. 89. As to the rule in equity, where one of the parties has died, see Stone d. Hobart, (8 P.) 25 464; Wood v. Leland, (22 P.) 39 503; Wood v. Leland, (1 Met.) 42 387. 90. An agreement by a husband and wife, before the married women's acts, and another, created no equitable right to contribution in favor of the third person, as against the infant child of the deceased wife, as her contract was void by reason of her coverture. Coffin v. Heath, (6 Met.) 47 76. (6.) Multiplicity of parties, with distinct rights, ete. rP. S.,Ch. 151, 82. cl. 6.1 91. This provision of the statute applies to a case, in which a judgment between two of the parties, having distinct interests, would leave open to one or both a controversy with a third person, and requiring proceedings in the nature of a bill of interpleader to adjust the whole matter in controversy in one decree. Angell v. Stone, 110 54. See, also, Pool v. Lloyd, (5 Met.) 46 525; Hale v. Cushman, (6 Met.) 47 425; Scovill v. Kinsley, (13 G.) 79 5; Bassett v. Brown, lOO 355; Carr ». Silloway, 105 543. 92. . It does not confer equity jurisdiction in any case, where the distinct rights or interests of the parties, however numerous, can be " justly and definitely decided and adjusted in one action at common law." This is tantamount to the rule that equity has no jurisdiction, where the plaintiff has a sufficient remedy at law. Angell v. Stone, 110 54; McNeil v. Ames, 120 481. See, also, Attaquin s. Fish, (5 Met.) 46 140; New Braintree v. Southworth, (4 G.) 70 304. 93. An assignee in insolvency cannot main- tain u. bill to restrain creditors from proving claims, where, although the number is large, their right depends upon the same- question of 416 EQUITY JURISDICTION, II, (7), (8), (9), (10). 'aw, and the claims are controlled by one person. Fellows v. Spaulding, 141 89. 94. It does not suffice to confer jurisdiction, that one of the defendants may maintain inter- pleader, if the plaintiffs rights can be fully protected by a suit at law. McNeil v. Ames, 120 481; Machi- nists' Nat. Bk. v. Field, 126 345. [See the foregoing 1 cases for the practical applica- tion of these principles.] (7.) Copartners; joint tenants; tenants in common, [P. S., Ch. 151, 5 2, cl. 7. See, also, Joint Tenants and Tenants in Common; Partnership; Parti- tion.] 95. Under St. 1823, Ch. 140, § 2, substantially like the existing provision, it was held, that there was no jurisdiction of causes relating to the conditional liability of stockholders of a manufacturing company, either before or after dissolution. Pratt v. Bacon, (10 P.) 27 123; Pratt v. Bacon, (11 P.) 28 495; Russell v. Mc- Lellan, (14 P.) 31 63- Abbott o. Mer- riam, (8 C.) 62 588. 96. Under the same statute, where, by agree- ment between the widow and heirs of an intes- tate, one third of the proceeds of the sale of real property was to be secured to the widow for for life, and a note therefor, payable to the heirs, with interest payable to the widow, was deposited with another, it was held, that the heirs and the widow were not either partners or tenants in common, so as to give the court juris- diction of a bill for relief against misapplication of the fund. Holland v. Dickinson, (10 P.) 27 4. CS.) Joint trustees; co-executors; co- administrators. [P.S.,Ch.l61,§2;cl.8.1 97 A bill cannot be maintained by one ex- ecutor against his co-executor and the devisees, to compel the co-executor to join in a petition to the probate court for leave to sell real prop- erty, or otherwise to perform his duty as execu- tor. The remedy is by application to the pro- bate court for his removal. Southwick v. Morrell, 121 520. 98. Where two executors have united in mis- using the funds of the estate, by purchasing land for their own benefit, and profits have accrued therefrom, which are held by one of them, or land purchased therewith stands in the name of one of them; and the persons interested in the estate are not debarred, by acquiescence or otherwise, from the right to avail themselves of the advantage of the purchase; the other executor cannot maintain a bill in equity for an account, and the payment to him of a share of the profits. Bowen «. Richardson, 133 293. (9.) 'Waste and nnlsance. [P. S., Ch. 151, 9 2, cl. 9. See Nuisance, U. ; Waste.] (10.) Acconnt, including agency, [P. S.. Ch. 161, f 2, cl. 9. As to an agent's dutv to account to his principal, see Agbncj?IIT°v V° other rulings as to £he right to an accounting h equity, see Partnership,!, (4); iii,(3); ni|,(3jf$ 99. Where several persons associate them- selves with A to form a mining corporation and_ it is formed, they may maintain a bill against A for an account of his dealings in the purchase of the mine, he having deceived them respecting the sum paid; this by reason of the fiduciary relation, and because the remedy at law is not plain. Dole v. Wooldredge, 135 140. 100. In order to maintain a bill for an ac- counting, where there is no prayer for a discov- ery, it must appear from the specific allegations of the bill, that there was a fiduciary relation between the parties, or that the aecount is so complicated that it cannot be conveniently taken in an action at law. A general allegation that the account is of such a character will not sustain the bill, Badger v. McNamara, 123 117. See also, Ward v. Peck, 114 121. Walker s. Brooks, 125 241. 101. Where a partner, after dissolution, con- signs partnership property to an agent for sale, the proceeds to be applied to pay a partnership debt, the other partner may maintain a bill in equity against the agent for an account. Bartlett v. Parks, (1 C.) 55 82. 102. One, entitled to a share in the net profits of a business, may maintain a bill for an ac- counting, although not a partner. Hallelt v. Cumston, 110 32. 103. Semble, that the Massachusetts General Hospital may maintain a bill for an account against an insurance company, required by law to pay over to it one third of its net profits. Mass. Gen. Hospital b. State M. A Co., (4G.) 70 227. 104. A tenant in common may maintain a bill against his co-tenant,f or an account of rents and profits received while the latter was in posses- sion of the estate. Hodges ». Pingree, (10 G.) 76 14. 105. The fact that the account cannot prop- erly be adjusted at law without a discovery, is a sufficient answer to the objection that there is a remedy at law. Hobart v. Andrews, (21 P.) 38 526. 106. A bill for an accounting will not lie, where thero was neither an agency nor a trust, although the transaction involved confident and renance. Collins v. Sullivan, 135 461. 107. But a quasi trust will suffice, as where the party has received through a contract wiw the other, a specific identified fund, which heu bound to pay over. Pratt e. Tuttle, 136 233. 108. For practical illustrations of these prin- ciples, see the cases above cited, and Balls. Carew, (13 P) 30 28; Newton e. Thayer, (17 P.) 34 129; Newhall % Hobbs, (3 C.) 57 274; Burlingame ». Hobbsi (12 G.) 78 367; Lincoln ft Eaton, 132 63. EQUITY JURISDICTION, II, (11). 417 109 The objection that the plaintiff has an adequate remedy at law cannot be taken upon tke hearing, where it is not taken in the answer. Clark 0. Flint, (22 P.) 39 231; Rayn- ham Cong. Soc, etc. v. Eaynham Trus- tees, etc., (23 P.) 40 148; Mass Gen^ Hospital v. State M. A. Co., (4 G.) 70 227. See, also, ante, arts. 29 to 33. (11.) Equitable attachment; creditor's blU ° LP. S., Ch. 151, §2, cl.ll] 110. A " creditor's bill" is technically one by which one or more creditors sue in behalf of all for the administration of the assets of a de- ceased debtor, or the enforcement of a trust deed inter vivos; and any decree obtained is for the benefit of all. Chapman v. Banker, etc., Co., 128 478. 111. A bill under this clause of the statute, is one, the only purpose of which is to reach and apply to the payment of the plaintiff's debt, property of the debtor, which cannot be taken upon an execution at law; it is in the nature of an equitable attachment, brought by a single creditor for his own benefit, and in which other creditors cannot be admitted to join as plain- tiffs, or to share in the benefits of the decree. Chapman v. Banker, etc., Co., 128 478. See, also, Silloway ». Columbia Ins: Co., (8 G.) 74 199; Crompton v. An- thony, (13 A.) 95 33; Barry «. Abbot, 100 396, Phcenix Ins. Co. v. Abbott, 127 558, Russell «. Milton, 133 180. 112. A bill will not lie to reach the debtor's distributive share of an intestate's estate in the administrator's hands. Emery i. Bidwell, 140 271. 113. It will lie to reach the principal and in- terest of a trust fund created by a will, where the income is to be pafcl directly to the cestui que trust, and the fund is not co limited as to prevent alienation. Forbes v. Lothrop, 137 523. 114. The provision, as originally enacted by 3t. 1851, Ch. 20G, St. 1858, Ch 34, used the expression; "z bill by any creditor;" the sub- stitution, in the Q. o and the P. S., of "bills bj creditors," does not change its effect, and debts due to different persons severally cannot be made the foundation of one bill. Chapman v. Banker, etc., Co., 128 478. 115. A bill of that description cannot be maintained in analogy to a bill by one or more members of an association, in behalf of all hav- ing a common interest, or to a bill by owners of several parcels of land, injured by the same nuisance. Chapman v. Banker, etc., Co., 128 478. See, also, Birmingham v. Gallagher, 112 190; Cadigan o. Brown, 120 493. 116. The power of the court is limited to "property, right, title, or interest," "within this State;" the fact that it is owned and assignable by a party residing here, is not sufficient; it must be actually situated within the Common- wealth. Carver v. Peck, 131 291. Vol. 1-53 117. The power does not extend to a patent right owned by a resident; nor to a debt due to him by a nonresident. Phoenix Ins. Co. v. Abbott, 127 558; Carver v. Peck, 131 291. 118. It extends to a debt due upon a policy of life insurance issued by a foreign corpora- tion. Anthracite Ins. Co. ■». Sears, 109 383. 119. And to a debt secured by a mortgage. Tucker v, McDonald, 105 423. 120. And to a judgment recovered for an in- jury to the person, although after verdict but before judgment, the debtor assigned it. Rice v. Stone, (1 A.) 83 566. 121. And to money due, and afterwards ac- cruing from publishers, for royalty on a book of the debtor, sold under a contract with him. Lordn. Harte, 118 271. 122. And to an equitable interest in land pur- chased by the debtor's wife, in her name, partly with his money. Bresnihan v. Sheehan, 125 11. 123. But not to a claim of the defendant against the plaintiff himself. Walker i). Brooks, 125 241. 124. Or to rents due, and to become due, from a lease of the debtor's property, for they can be reached at law. Schlesinger v. Sherman, 127 206.. 125. Or to an income given to the debtor from a fund, to be applied to his personal use, or that of his family, by the trustee, and ex- pressly declared not to be assignable. Foster t>. Foster, 133 179. See, also, Hall v. "Williams, 120 344; Broadway Nat. Bk. e. Adams, 133 170; Russell «. Milton, 133 180. 126. For additional rulings, as to the nature of the property, which may or may not be reached under this clause of the statute, see Davis v. Werden, (13 G.) 79 305; Moody v. Gay, (15 G.) 81 457; Dear- born b. Kemble, (5 A.) 87 372; Mill River, etc., Assn. v. Claflin, (9 A.) 91 101; Robinson v. Trofitter, 109 478; Judge ». Herbert, 124 330; Parsons v. Clark, 132 569; Pacific Nat. Bk. v. "Windram, 133 175. 127. The bill cannot be maintained, by » creditor of » corporation, after the dissolution of the corporation. Thornton v. Marginal F. Railway, 123 32. 128. A bill cannot be maintained under this clause to direct a trustee to pay to the plaintiff, upon the future death of the equitable tenant for life of a trust fund, so much of the debtor'* share as devisee of the remainder, as will satisfy the plaintiff's demand. Bartholomew «. Weld, 127 210. 129. Where a creditor seeks to obtain pay- ment out of a trust fund, under this clause of the statute, the equitable defences of undue in- fluence and threats may be interposed, without showing facts which would constitute duress at law. Rau v. Von Zedlitz, 132 164. 418 EQUITY JUKISDICTION, II, (11), (12), (13). 130. A woman about to marry cannot settle her property, in trust to pay the income to her- self during coverture, with a provision that it shall not be alienated, so as to prevent her cred- itors from reaching it by a bill under this clause. Jackson 1>. Von Zedlitz, 136 343. TFor other cases as to where a trust fund may or may not be reached, see Devise and Bequest; Teust.1 131. The general equitable jurisdiction of the court will not enable a creditor to reach prop- erty of his debtor, in a case not within this clause of the statute, until he has recovered judgment upon his debt. Carver ». Peck, 131 291; Taylor v. Robinson, (7 A.) 89 253. See, also, Wiggin v. Hey wood, 118 514. 132. For rulings under the provisions of St., 1851, Ch. 206, Which limited the remedy to a case where the debtor was a nonresident, see Silloway v. Columbia Ins. Co., (8 G.) 74 199; Sanger ®. Bancroft, (12 G.) 78 365; Davis v. Werden, (13 G.) 79 305. 133. For rulings under the R. S., see Grew v. Breed, (12 Met.) 53 363. C12.) Fraud; fraudulent conveyance; conveyance In the nature of a mortgage. [P. S., Ch. 151, § 2, cl. 12: Id.,§3. As to fraud gene- rally, and equitable relief against the same, see Fbato. As to equitable relief in cases of mortgages and deeds with defeasances, see, also, Mortgage/] 134. A bill in equity lies to declare the plain- tiff to be entitled to redeem land, which the defendant holds by an absolute conveyance from him, executed intelligently, and not by accident or nJstake, and without any promise of a defeasance, upon oral evidence that both parties understood that the deed was intended as a security for a loan. Campbell ». Dearborn, 109 130 ; McDonough v. Squire, 111 217. See, also, Newton v. Fay, (10 A.) 93 505; Glass «. Hulbert, 102 24; Hassam v. Barrett, 115 256. 135. In such a case, the recitals and covenants of the deed preclude the plaintiff from setting up a trust by implication ; the agreement for a reconveyance is void by the statute of frauds;' it does not create an express trust; and the de- fendant's retention of the property is not a cog- nizable fraud. The only relief which the plaintiff can have is by an equitable conversion of the deed into a mortgage. Campbell v. Dearborn, 109 130. 136. In this Commonwealth, until the enact- ment of this clause by St. 1855, Ch. 194, § 1, the courts held, that their jurisdiction of the foreclosure and redemption of a mortgage was limited to a case, where the defeasance was con- tained in the deed, or some other instrument under seal, either of the same or of a different date. Campbell v. Dearborn, 109 130. 137. See, also, for illustrations of the former rule, and cases since the statute, where there was a separate instrument of a defeasance, Erskine v. Townsend, 2 493; Kelleran v. Brown, 4 443; Taylor ». Weld, 5 109, Cary v. Rawson, 8 159; Harrison Phillips Acad., 12 456; Parks s Hall (2 P.) 19 206; Rice v. Rice, (4 P.) 21 349; Newhall d. Burt, (7 P.) 24 157. Flagg v. Mann, (14 P.) 31 467; Hogim! ■0. Arnold, (15 P.) 32 259; Fowler ® Rice, (17 P.) 34 100; Lovering ». P 0K ' (18 P.) 35 540; Eaton v. Green, (23 f) 39 526; Waters v. Randall, (6 Met ) 47 479; King v. Little, (1 C.) 55 436; Judd v. Flint, (4 G.) 70 557; Bayleys. Bailey (5 G.) 7 1 505; Hancock 0. Carlton (6 G.) 72 39; Burlingame «. Hobbs, '(13 G.) 78 367; Murphy v. Galley, (1 A ) 83 107; Gilson v. Gilson, (2 A.) 84 115; Mclntier «. Shaw, (6 A.) 88 83. 138. Under the clause in question, the authority of the court is ample; it is limited only by those considerations which guide courts of full chancery powers, in the exercise of all those powers. Campbell ». Dearborn, 109 130; Mc- Donough v. Squire, 111 217. 139. As to the extrinsic circumstances, which afford evidence that an absolute deed was in- tended as a mortgage, see Campbell 0. Dearborn, 109 130. 140. When a deed is declared to be a mort- gage, upon oral evidence, the relief is given upon purely equitable grounds, and, in the absence of equitable considerations, it will be refused. Hassam 0. Barrett, 115 256. 141. Thus where the conveyance, by a debtor to a creditor, was made absolute for the pur- pose of defrauding other creditors, equity will not relieve the grantor. Hassam v. Barrett, 1 15 256. 142. As to the sufficiency of an allegation in the bill, that a deed was intended as a mortgage. Warfield v. Fisk, 136 219. 143. Where an assignee in insolvency has brought writs of entry to recover land fraudu- lently by the insolvent, and, pending those ac- tions, brings a bill in equity for the appoint- ment of a receiver of the rents and profits, and to restrain the defendant from collecting them; and it appears that the defendant is able to re- spond to any judgment recovered at law, the court will affirm a decree dismissing the bill, and will not reverse it to allow an amendment, so as to change it into a bill to recover the land. Squire v. Hewlett, 141 597. (13.) Accident and mistake; reformation of Instrument. l.P.S.,Ch. 151, J2, cl. 13. 1 144. Before St. 1856, Ch. 38, the court had no jurisdiction to reform contracts, on the ground of accident or mistake. Dwight v. Pomeroy, 17 303; Leach 0. Leach, (18 P.) 35 68; Babcock ». Smith, (22 P.) 39 61; Gould 0. Gould, (5 Met.) 46 274. 145. A court of equity will not reform J written instrument, unless it is shown that , me mistake was mutual; that the ins rument laus to be, as was intended, an execution of a pre- vious oral agreement; and that this is the result of a mutual mistake. Proof of the mistake ot one party will not suffice. EQUITY JUEISDICTION, II, (13), (14). 419 German Am. Ins. Co. v. Davis, 131 816. See, also, Canedy v. Marcy, (la G.) 79 378; Sawyer v. Hovey, (3 A.) 85 331; Stockbridge Iron Co. v. Hudson Iron Co 102 45; Stockbridge Iron Co. v. Hudson Iron Co., 107 *290. 146. But the defendant's mistake may suffice to prevent a decree for specific performonce. Western Bailroad v. Babcock, (6 Met.) 47 346. [See Specific Performance.! 147. The proof of mutual mistake must be full, clear, and decisive. Canedy ». Marcy, (13 G.) 79 373; Stockbridge Iron Co. v. Hudson Iron Co., 102 45; German Am. Ins. Co. ». Davis, 131 316. 148. The assignee of a mortgage, discharged by mistake of the mortgagee, who intended to discharge another mortgage, may have the dis- charge cancelled, as against a person claiming under a mortgage subsequently executed, who had knowledge of the mistake; or one whose mortgage was executed before the discharge; or one who took an assignment of the second mortgage, after a note secured thereby was over- due, and this, although the plaintiff's assign- ment is not recorded. Willcox «. Foster, 132 320. 149. As to the cancelment of a discharge of a mortgage by mistake, see, also, Bruce v. Bonney, (12 G.) 78 107. 150. But where a mortgagee, to correct a mistake in his mortgage, discharged it of record, and took a new mortgage, in ignorance that an intervening mortgage had been exe-. cuted and recorded; and, after knowledge of the intervening mortgage, sold the land under a power in his mortgage, and recovered judg- ment against the mortgagor for the unsatisfied balance; it was held, that he had elected to stand by his new mortgage, and could not main- tain a bill to have the discharge of the first mortgage cancelled. Childs v. Stoddard, 130 110. 151. The court is not limited to a mistake of fact; a mistake in the legal effect of the descrip- tion in a deed, or in the use of technical language may be relieved against. Canedy v. Marcy, (13 G.) 79 373; Earle u.Rice, 111 17. 152. Lapse of time is no objection to the reformation of a deed, if the parties, until within a recent period, have acted upon the real intention. Canedy v. Marcy, (13 G.) 79 373. 153. So if one of the parties delays to bring suit, in an honest and reasonable reliance upon the original construction of the parties, although he knows that the other party denies it. Stockbridge Iron Co. v. Hudson Iron Co., 107 290. T 15 *f \^ to reform an instrument will not «e, it the proposed reformation involves the specific performance of an agreement void by me statute of frauds, unless additional circum- stances exist, which would entitle the party to such specific performance. Glass v. Hulbert, 103 24; Peirce v. Colcord, 113 372. 155. An exception in the grantor's deed poll may be reformed, where the intention was to create a reservation, which would not be void under the statute of frauds. Stockbridge Iron Co. «. Hudson Iron Co., 107 290. 156. The waiver of a lien for freight, under the erroneous belief that the consignee is solvent, is not such a mistake as entitles the shipowner to relief in equity. Sears v. Wills, (4 A.) 86 212. 157. An award will not be set aside for a mistake or omission of the arbitrators, which may be pleaded to an action upon the award. Mickles v. Thayer, (14 A.) 96 114. 158. A mutual mistake is a good defence to an equitable suit, as well as a foundation for a cross bill. Stockbridge Iron Co. v. Hudson Iron Co., 107 290. 159. A reformation cannot be granted to the grantor in a deed, who has omitted to insert therein a reservation, not through accident or mistake, but from reliance upon the oral promise .of the grantee; and the latter's refusal to fulfil is not a fraud, entitling the plaintiff to that relief. Andrew v. Spurr, (8 A.) 90 412. 160. A bill lies against the administrator of the payee of a note, who transferred it to the plaintiff, but by accident or mistake omitted to indorse it, to compel him to indorse it and to pay the amount to the plaintiff. Hodge *. Cole, 140 116. 161. For instances of the practical applica- tion of these principles, see the cases above cited, and also Battle®. Griffin, (4 P.) 21 6; Hancock v. Carlton, (6 G.) 72 39; Metcalf v. Putnam, (9 A.) 91 97; Spurr v. Bene- dict, 99 463; Rumrill v. Shay, HO 170; Currier «. Esty, 110 536; Willcox o. Lucas, 121 21. [See, also, Vendor and Vendee.] (14.) Discovery. IP. S., Ch. 151, § 2, el. H. Bee, also, ante, art. 105.1 162. As to the equitable jurisdiction for a discovery before the R. S. Tirrell v. Merrill, 17 117; Campbell v. Sheldon, (13 P.) 30 8; Law v. Thorn- dike, (20 P.) 37 317. 163. The defendant, in a bill of discovery, is not bound to answer any interrogatories, where his answers may be used against him on a criminal charge. Adams*. Porter, (1 C.) 55 170 164. A bill for a discovery can be maintained only where the discovery is incidental to some other equitable relief, to which the plaintiff is entitled, and for which he prays, or where the discovery is necessary in aid of an action at law. Pool e. Lloyd, (5 Met.) 46 525; Ahrend v. Odiorne, 118 261; Walker «. Brooks, 125 241. See, also, Chapin v. Coleman, (11 P.) 28 331; Clapp t. Shephard, (23 P.) 40 228. 420 EQ. JUEISD'N, II, (15) to (20)— EQ. PLEADING, ETC., I, (l). 165. And if the bill is for discovery as inci- dental to relief, and the plaintiff cannot have the relief, he cannot have the discovery. Pool v. Lloyd, (5 Met.) 46 525; Mitchell 11. Green, (10 Met.) 51 101; Emery ». Bidwell, 140 271. 166 As if he cannot maintain the bill be- cause his remedy at law is adequate. Haskins v. Burr, 106 48; Ward v. Peck, 114 121. 167- A bill f r a discovery cannot be main- tained in aid of an action at law, where the re- lief can be obtained by interrogatories in the action at law. Ahrend v. Odiorne, 118 261. 168. Nor where the plaintiff cannot maintain the action at law. Piske v. Slack, (21 P.) 38 361; Chapin ■o Coleman, (11 P.) 28 331. 169 Nor unless the bill avers that an action at law has been brought, or is about to be brought, in which the discovery is material. Pease ». Pease, (8 Met.) 49 395; Mit- chell v. Green, (10 Met.) 51 101 ; Haskins v Burr, 106 48. 170. But the formal averment of materiality may be omitted, if the bill shows that it is Peck v. Ashley. (12 Met.) 53 478. 171. Where discovery is incidental to equit- able relief, it is not necessary to aver anything respecting its materiality. Clapp v. Shephard, (23 P.) 40 228. 172. A bill for discovery cannot be main- tained, if it waives the defendant's oath. Ward®. Peck, 114 121; Badger v. McNamara, 123 117. 173. The English rule, that the plaintiff shall have discovery only of what is necessary to his own title, and shall not impeach thereby the defendant's title, is not in force in this Common- wealth. Adams v. Porter, (1 C.) 55 170. See, also, Haskell v. Haskell, (3 0.) 57 540. CIS.) Property fraudulently conveyed Dy debtor. [St. 1875, Ch. 235; P. S., Ch. 151, § 3.] 174. A judgment creditor, who has not taken out execution, does not, by filing a bill under St. 1875, Ch. 235, to apply to the payment of his debt property fraudulently conveyed by the debtor, obtain a lien whieh will hold as against proceedings in bankruptcy, commenced within four months thereafter. Trow «. Lovett, 122 571 LSee, further, Fraud, II.] (16.) Injunction. LGeneral provisions, P. S., Ch. 151, %% 1, i. See In- junction.] (17.) Interpleader, [General provisions, P. S., Ch.151, §§ 1, i. See IN- TERPLEADER.] (18.) Quieting title, provisic Title.] LGeneral provisions, P. S., Ch. 151, §5 1, 4. See Quieting xe CI 9.) Partnership, [General provisions, P. S., Ch. 151. 68 1 i a~ Partnership.] * ' *■ »w (20.) Corporations. [General provisions, P. S., Ch. 151, §« l l „, fl . special provisions elsewhere, tiee Bank- M\tm>. Equity pleading and practice. I. Pleading. (1.) Bill or petition. (2.) Cross bill; supplemental bill; bill of rt vivor. (3.) Demurrer. (4.) Plea; answer; replication (5.) Amending pleadings. II. Practice. (1.) Parties. (2.) Trial of issues by a jury. (3.) Reference; report; exceptions thereto. (4.) Evidence; answer as evidence. (5.) Miscellaneous interlocutory proceeding*. (6.) Hearing; rehearing. (7.) Decree. (8.) Appeal. (See Appeal, I, (3).) (9.) Review. (10.) Costs. [As to pleading and practice in particular equitable suits, see, also, the titles or those suits, or of th e sub- jects thereof, either separately, or under Equity Jurisdiction. As to other matters relating to equity pleading and practice, see Amendment ; Ap- peal; Auditor; Discontinuance ; Evidence; Exceptions; Injunction; Interpleaders R»- ceiver; Keport; Eevtew; Writ.] I. Pleading. (1.) Bill or petition. [For rulings as to the sufficiency of bills in particu- lar suits, see the titles of those suits or the subjects. thereof, either separately, or under Equity Juris- diction.] 1. It is not clear what was the distinction contemplated by the legislature between a bill and a petition. Where the initial pleading i» a dressed to the court, sets forth the facts con- stituting the cause of action, prays for relief, and is signed by the plaintiff and his solicitor, but the conclusion is not such as the rule re- quires, and there is no prayer for process, it may be deemed a defective bill; and where the defendants have answered without noticing the- defects, t*iey have waived them, and the bill will be amended, and put in the technical form of a bill, and relief granted. . Belknap v. Stone, (1 A.) 83 5W. See, also, Gibbins v. Shepard, 125 &«. 2. For rulings as to a bill under St. 1853, Ch. 371, and St. 1856, Ch. 38, see Darling v. Roarty, (5 G.) 7 1 71; Top- lifl v. Jackson, (12 G.) 78 565; Irym*. Gregory, (13 G.) 79 215; Currier « Howard; (14 G) 80 511; Crano ft Adams, (16 G.) 82 542. EQUITY PLEADING AND PEACTICE, I, (1). 421 3. A trustee, seeking the instructions of the court, must proceed by bill, not by petition. Gibbins v. Shepard, 125 541. 4. A bill for specific performance of a con- tract to convey land need not lay the venue in the county where the land lies. Davis v. Parker, (14 A.) 96 94. 5. So of a bill to compel the defendant to account for the proceeds of land conveyed to him as security for a debt. Burlingameii. Hobbs, (12 G.) 78 367. 6. As to the proper county, in which to file a petition for the dissolution of an attachment, etc., presented by receivers of a bank, appointed upon a bill brought in another county. Atlas Bk. v. Nahant Bk.,(23 P.) 40 480. [See, further, Practice, I, (2).l 7. A bill in equity between partners, for an account, inserted in a writ of attachment, can- not be served by arresting the defendant. Comm. v. Sumner, (5 P.) 22 360 8. A defendant in an equity suit may be arrested and held to bail on a writ of me exeat. Bice v. Hale, (5 C.) 59 238. 9. A bill must contain in the stating part every averment necessary to entitle the plaintiff to relief, set forth expressly and distinctly, and not by reference to other parts of the bill. "Wright v. Dame, (22 P.) 39 55. 10. But conclusions need not be averred; thus where the facts alleged show actual or con- structive fraud, an express averment of fraud is not necessary. Farnam v. Brooks, (9 P.) 26 212. 1 1 . Where a conveyance would be valid with- out a deed or writing, the mode of making it need not be averred. Hobart v. Andrews, (21 P.) 38 526. 12. But where a writing is necessary its exist- ence should be averred. Manning v. Gloucester Par., (6 P.) 23 6. See, however, Ensign v. Kellogg, (4 P.) 21 1. 13. An executor's bill for instructions as to the construction of the will, is not demurrable, because it does not set forth the entire will, if it sets forth all that is material to the questions presented. Putnam v. Collamore, 109 509. 14. The stating part of a bill cannot be en- larged by the prayer for relief. Bushnell v. Avery, 121 148. _ 15. It is not necessary to annex a copy of the insolvency proceedings to a bill to set them aside. Cheshire I. "Works v. Gay, (3 G.) 69 531. 16. A bill against a corporation for relief, and a member thereof for discovery, need not allege any special reason for the discovery. "Wright «. Dame, (1 Met.) 42 237 17. A bill may be framed in an alternative form, and aver facts of different natures in its support; and if the title to relief will be the same in either alternative, the bill can be main- tained, although the case is presented upon allegations resting upon entirely distinct and independent grounds. Gerrish *. Towne, (3 G.) 69 82. 18. Where it is averred that the books and papers, necessary to a final settlement, are in the defendant's hands, the same certainty and par- ticularity is not required, as in other cases. Towle ». Pierce, (12 Met.) 53 329. 19. But, in general, where the bill is brought for an accounting, and to open a settlement, it must aver that a balance is due the plaintiff, and that a demand has been made, and it must specify the errors. Hobart v. Andrews, (21 P.) 38 526. 20. An injunction against selling land, under a power in a mortgage, may be granted upon a bill, which does not describe the land suffici- ently to enable a writ of possession to issue. ConantB. Warren, (6 G.) 72 562. 21. Where notice is made by statute a pre- requisite to the approval of a bond by a master, an allegation that he approved the bond implies that notice was given. O'Hare v. Downing, 130 16. 22. Where the allegations of a bill to enforce an express trust in real property clearly imply that the declaration of trust was not in writing, the bill is bad upon demurrer. Campbell «. Brown, 129 23. See, also, Walker v. Locke, (5 C.) 59 90; Slack v. Black, 109 496; Ahrend v. Odiorne, 118 261. 23. A general allegation of fraud in a bill is insufficient. Nichols v. Rogers, 139 146. 24. As to the sufficiency of an allegation that a deed was intended as a mortgage. Warfield «. Pisk, 136 219. Of an allegation of a failure to make due ap- plication of funds given to a public charity. Atty.-Gen'l ®. Parker, 126 216. 25. A prayer that the defendant make answer to the matters alleged therein is a suffi- cient general interrogatory, although coupled with a prayer for process, and followed by a prayer for general and specific relief. Ames v. King, (9 A.) 91 258. 26. If the plaintiff waives an answer upon oath, he must do so in his bill; he cannot do so after answer. Bingham v. Yeomans, (10 C.) 64 58; Chace v. Holmes, (2 G.) 68 431. [As to waiver of an oath to a bill for discovery, see Equity Jurisdiction, art. 172.1 27. Under the general prayer for further re- lief, the plaintiff may have such further relief, not specifically prayed for, as his case requires, although the fact upon which it depends is first brought out at the hearing. Franklin®. Greene, (2 A.) -84 519. 28. A prayer for an accounting by a partner " of all other matters relating to the concern," is a prayer for general relief. Miller v. Lord, (11 P.) 28 11. 29. A prayer for relief against an injury, in a speeific method, will cover the same relief In & 422 EQUITY PLEADING AND PEAOTICE, I, (1), (2). method differing somewhat in matters of detail, although there is no general prayer. Knapp ». Douglas Axe Co., (13 A.) 95 1. Nudd«. Powers, 136 273. 30. The signature to a hill, " A. B., by Ms solicitor, C D ," is sufficient. Pope v. Salamanca Oil Co., 1 15 286. 31. So is a signature for the party by an at- torney in fact, although there is no allegation respecting his power. Burns v. Lynde, (6 A.) 88 305. 32 Where the bill seeks to enforce one debt against several defendants, who have incurred the same liability, although the liability ac- crued severally, it is not multifarious; as where several officers or several stockholders of a manufacturing corporation are sought to be charged for the same reason. Pope v. Salamanca Oil Co., 115 286. See, also, Dimmock v. Bixby, (20 P.) 37 368; Robinson v. Guild, (12 Met.) 53 323. 33. So, where the plaintiff claims to maintain the suit in two capacities. Robinson v. Guild, (12 Met.) 53 323; Phillips v. Allen, (5 A.) 87 85. 34. But where the liability has been differ- ently incurred, the bill is multifarious, as where it seeks to charge officers of a manufacturing corporation for signing a false certificate, and stockholders, because the capital was not fully paid in. Pope «. Leonard, 115 286. See, also, Cambridge W. Works ». Somerville D. & B. Co., (14 G.) 80 193. 35 And generally, where the bill embraces several distinct matters and claims, and joins, as defendants, distinct parties, who have no common interest in the distinct claims, it is multifarious. Sanborn v. Dwinell, 135 236. See, also, Metcalf v. Cady, (8 A.) 90 587. 36. So, where a bill seeks to redeem one mortgage of an entire property, and a subse- quent mortgage by a tenant in common of his sharp ' White «. Curtis, (2 G.) 68 467. 37. But if one of the grounds set forth for relief is sufficient, and the other is insufficient, the bill is not multifarious. McCabe v. Bellows, (1 A.) 83 269. 38. The objection of multifariousness is ob- viated, where the defendant has removed one of the distinct grounds for relief before answer. Whitney v. Union Railway, (11 G.) 77 359. 39. If several plaintiffs are several owners of different parcels of goods, which have been ob- tained from them by distinct fraudulent trans- actions by the same person, who has pledged them, they may join in one bill to redeem them, upon payment of the advance. Coleman v. Barnes, (5 A.) 87 374 40 A mere recital does not make a bill mul farious. Brewer v. Boston Theatre, 104 378. 41 Nor does a demand for relief incidental to the principal relief demanded. Comm'l Ins. Co. v. McLoon, (14 A.) 96 351; Price v. Minot, 107 49. 42. An allegation m a bill, that the defendant with funds contributed by the plaintiff bought a portion of a mine, and now denies that the plaintiff has any interest therein, and claims to hold it as his own, is not a sufficient allegation of a refusal to recognize the rights to which the plaintiff would be entitled, when the trust was closed. Nichols v. Rogers, 139 146 (2.) Cross bill; supplemental bill; Mil of revivor. [See Chancery Eules of 1884, rules XXV, XXV 1 43. If the defendant seeks a discovery, or any other affirmative relief, against the plaintiff he can have it on a cross bill. Atlanta Mills ». Mason, 120 244 Andrews «. Gilman, 122 471; Richards v. Todd, 127 167. 44. It is not necessary that the plaintiff in the cross bill should show any equitable ground to support the jurisdiction, if the subject of the cross bill relates to that of the original hill, or forms any equitable set off. Cartwright v. Clark, (4 Met.) 45 101 45 A cross bill should be filed before publi- cation of the evidence, unless the party filing it will go to hearing upon the published evidence. Cartwright «. Clark, (4 Met.) 45 104. 46. But the court may, in its discretion, allow a crossbill to be filed at anytime, even after the hearing; and, upon notice, may stay the proceedings upon the original hill. Cartwright v Clark, (4 Met ) 45 104. 47. A supplemental bill is proper where an event happens, after filing the original bill, which gives a new interest or right to a party. Saunders v. Frost, (5 P.) 22 275; Jaques ». Hall, (3 G.) 69 194. 48. It can be filed only upon leave and good cause shown, and the supplementary matt- must be verified. Pedrick v. White, (1 Met.) 42 76. 49. It must follow the original hill, and set forth subsequent damages or other rights, arising from the same cause. Bardwell v. Ames, (22 P.) 39 333. 50. An objection to a supplemental bill, that it seeks to maintain the suit upon facts which have since occurred, is waived by not demur- ring, and going to a hearing upon the original and supplemental bill. Pinch v. Anthony, (10 A.) 92 470 51. The executor of a deceased defendant may be brought in by a bill of revivor, whether service was, or was not, made upon the testator Wood v. Leland, (1 Met.) 42 387; Heard «. March, (12 C.) 66 580. - 52. Formerly a bill to redeem mortgaged property abated by the plaintiff's death i ana then his heirs might renew the suit by bill oi revivor, or, if new matter was required, sucn as an additional tender, by bill of revivor ana supplement. _ . „ Smith v. Manning, 9 422; Putnam ft Putnam, (4 P.) 21 139; Saunders ft Frost, (5 P.) 22 275. AUter, now, as to abatement, G S., Ch 1*. § 33, P. S , Ch. 181, § 40. Upon the subject of abatement generally, see that title. EQUITY PLEADING AND PEAOTICE, I, (2), (3). 423 '58 Now, under the statute, where a trustee plaintiff dies,- his successor may tie admitted, on petition, to continue the suit, without a sup- plemental bill or a hill of revivor. Murray v Dehon, 102 11. See, also, Shaw v. Norfolk Co. R. R, (5 G.) 71 162. 84. A hill against partners does not abate by the death of one. Pingree v. Coffin, (13 G.) 78 388. 55 But upon the death of a sole plaintiff, in a hill to obtain title to real property, his devisee can continue it only by a bill of revivor. Pingree v. Coffin, (13 G.) 78 388 56. Where, pending such a bill against two partners and a third defendant, one of the part- ners died, leaving nonresident heirs, it was held, that the plaintiff might elect to have damages for the whole value of the land, or a decree for so much as the surviving partner could convey, and damages for the residue; and, the plaintiff having elected to take the land as part of the damages, and afterwards, and before decree, having died, devising his real property to his executors; it was held, that they might come in and prosecute for damages, without a bill of revivor; but they might withdraw the election, and take a decree for full damages. Pingree v. Coffin, (12 G.) 78 288. 57. A bill seeking an assignment of a mort- gage, and restitution in damages for a fraud, does not abate by the plaintiff's death; and un- der St. 1865, Ch. 42; P S., Ch. 165, § 19, his executor may be admitted to prosecute it, with- out a hill of revivor. Cheney v. Gleason?, 125 166. (3.) Demurrer. [See, also, post, II, (l).l 58. A demurrer is the proper mode of pre- senting the objection that the bill is multi- farious, Pope «. Leonard, 115 286; Pope v. Salamanca Oil Co., 115 286. 59. All formal and technical objections to a hill, are waived by failing to demur, and going to a hearing upon the merits. Cobb v. Rice, 130 231. 60. Such as that a bill of interpleader waives the defendant's oath, has no affidavit of non- collusion annexed, does not offer to bring the property into court, and does not set out the claims of the respective defendants. Cobb ®. Rice, 130 331. 61 Also that the bill is multifarious; and that the plaintiff has an adequate remedy at law. Crocker v. Dillon, 133 91. See, also, Dearth v. Hide & L. Nat. Bk., 100 540, Page ». Young, 106 313; Jones ®. Keen, 115 170. [See, also, ante, arts. 1, 50.J 62. A demurrer cannot be sustained, where it affects one only of the grounds upon which the bill proceeds," there being sufficient to entitle the plaintiff to relief upon another ground. Pope D.Salamanca Oil Co., 115 386. See, also, Boston "Water Power ». Boston & W. Railroad, (16 P ) 33 512; Dim- mock D. Bixby, (20 P.) 37 368, Robin- son v. Guild, (12 Met.) 53 323. 63. A prayer for relief, part of which the court cannot grant, is not a sufficient ground of demurrer. White v. Curtis, (3 G.) 68 467 64. Where a party brings a bill for relief and discovery, and it shows him to be entitled to relief, but not discovery, the demurrer should be to the relief only, and a demurrer to the whole bill will be overruled. "Wright v. Dame, (1 Met.) 42 337; Conant i>. Warren, (6 G.) 72 563 65. The court will not draw inferences of fact upon a demurrer; and a demurrer must fail, which seeks to draw a different inference from that alleged in the bill, although the court might, at the hearing, adopt that inference. Warfield •». Pisk, 136 319 66. A bill for contribution, by one stockholder of a manufacturing corporation, who has paid its debts, is demurrable if it fails positively to allege that he was a stockholder Heath «. Ellis, (13 C.) 66 601 67. The failure to join, as defendant, the administrator of one whose death is alleged in the bill, is not available upon demurrer, if the bill does not show that there is such an adminis- trator. "White v. Curtis, (2 G.) 68 467. 68. Where an effectual decree can be made, without joining as defendants, persons who ap- pear by the bill to be without the Common- wealth, the failure to join them is not available upon demurrer, but, if in any form, by plea Palmer v. Stevens, lOO 461 69. So where the bill is between partners for an account, etc., and alleges that the defendant has received more and the plaintiff less than his share, and that the nonresidents have received their full shares. Towle •». Pierce, (12 Met.) 53 329. 70. A demurrer does not admit the legal con- struction of a contract, as alleged in the bill Lea v. Robeson, (12 G.) 78 280 71. And the plaintiff is not concluded, upon demurrer, by his allegations of law. Tompson«. Redemption Nat. Bk , 106 128. 72. A demurrer to a bill, alleging a sale of land, admits that there was a written agree- ment for the sale. Richards i>. Richards, (9 G.) 75 313 73. After a written demurrer to the whole bill is overruled, the defendant may demur ore terms to a part only. Wright v. Dame, (1 Met.) 42 237. 74. And he may demur ore terms after plea. Crease ». Babcock, (10 Met.) 51 525. 75. If an answer is fded with a demurrer, and the demurrer is overruled, no order to answer over is necessary. O'Hare ». Downing, 130 16. 76. The objection that a demurrer is not accompanied with the certificate required by G. S., Ch. 113, § 5; P. S , Ch 151, § 10, can- 424 EQUITY PLEADING AND PEACTICE, I, (4). not be taken after the cause has been reserved on bill and demurrer. Nelson* Ferdinand, 111 300. 77 The certificate is not necessary, where a statement in the nature of a demurrer for want of equity is contained in an answer. Mill Eiver L. F. Assn. 0. Claflin, (9 A.) 91 101. (4.) Plea; answer; replication. I As to tho effect of an answer as evidence, see post, II, (4).] 78. A plea must allege matter of fact, which, if true, is an entire bar to the suit, or some sub- stantive part of it; and if the plaintiff deems it insufficient for that purpose, whether true or not. he should move to set it aside for insuf- ficiency, which motion is in the nature of a de- murrer Newton 0. Thayer, (17 P.) 34 129. 79 If it is held insufficient, it is overruled, and the cause proceeds as if it had not been filed; if it is held sufficient, the plaintiff may take issue upon it, and the questions of fact will be tried in the usual way. Newton 0. Thayer, (17 P.) 34 129. 80. If tbe plea goes only to a substantive part of a suit, the defendant must answer or demur to the residue. Newton 0. Thayer, (17 P.) 34 129. 81. The defendant may plead to part, answer to part, and demur to part. Newton v. Thayer, (17 P.) 34 129. [See Chancery Rule IX.] 82 "Where a plea meets all the allegations of the bill, necessary to sustain the plaintiff's case, and the facts alleged therein are true, it is a bar. Carter v. Holbrook, (3 C.) 57 331. 83 A plea, setting up in bar a forfeiture by breach of a condition subsequent, must dis- tinctly aver laches on the plaintiff's part, since equity will relieve against a forfeiture in the absence of laches. Hancock v. Carlton, (6 . Hudson I. Co., 102 45; Ross ». New England Ins. Co., 120 113. 159. In such an action, special reasons must be shown before issues will be granted. Ross v. New England Ins. Co., 120 113. 428 EQUITY PLEADING AND PKACTICE, II, (2), (3). 16C. issues upon questions of fraud and in- sanity present proper eases for directing a jury trial. Pomeroy v. Winship, 12 514; Eames v. Eames, (16 P.) 33 141. 161. So where a party proceeds in equity, instead of at law, to recover usurious interest. Ward v. Hill, (4 G.) 70 593. 162. So does an issue on a bill to enjoin a nuisance. Harris «. Mackintosh., 133 238. 163.' In a suit under St. 1875, Ch. 235; P. S., Ch. 151, § 3, where the fraud is denied, and a trial by jury demanded in the answer, the de- fendant is entitled to such a trial. Powers v. Raymond, 137 483. 164. The' order is interlocutory, and the issues should be framed and filed at a jury term. Coffin v. Easton, (12 C.) 66 107. 165. The verdict, if not set aside for good cause, is regarded as settling the facts conclu- sively. Franklin v. Greene, (2 A.) 84 519- Warshauer v. Randall, 109 586. 166. But it will not be extended by construc- tion, to include matters upon which the jury have not expressly found, although there was evidence before them relating to such matters Warshauer v. Randall, 109 586. 167 An order, directing or refusing issues for a jury, was formerly within the discretion of the presiding judge, and not the subject of ex- ception. Ward » Hill, (4 G.) 70 593; Critten- den v. Field, (8 G.) 74 621, Brooks v. Tarbell, 103 496. 168. But under G S., Ch. 113, § 10; P. S., Ch. 157, § 16, an appeal lies from such an order, and now the order may be reviewed upon ex- ceptions, as part of the case. Stockbridge Iron Co. v. Hudson I. Co., 102 45; Ross v. New England Ins. Co., 120 113; Harris v. Mackintosh, 133 228. 169. The case last cited appears to overrule Davis v. Davis, 123 590, and Dorr v. Tre- mont Nat. Bk., 128 349, holding that an exception does not lie. 170. An order, reciting the claims of the par- ties, and directing " that an issue be tried by a jury of this court, whether the plaintiff signed and executed said instrument," not only directs but frames the issue. Dorr » Tremont Nat. Bk., 128 349. 171 The general rules, as to the right to open and close, apply to such a trial. Dorr v. Tremont Nat. Bk., 128 349. 172 As to the practice upon directing and framing issues for trial by jury, see a full state- ment in Dorr v. Tremont Nat. Bk., 128 349. (3.) Reference; report; exceptions there- to. LChancery Hules, XXX to XXXII. See, also, ante, arts. 116, 117 ; and Auditor.] 173 If a reference to a referee is made by rule of court, entered by consent of parties, and after the filing of the award, one party pre sents a petition for a rehearing on the wound of newly discovered evidence, the court will not pass upon the evidence, but may recommit the award to the referee. Asp v. Warren, 108 587. 174. After judgment for damages and costs in an action of tort, praying equitable relief' the court will not refer the case to a master, on the defendant's motion, to ascertain the plain- tiff's right of way. Barnes v. Haynes, (16 G.) 82 34. 175. An action of contract, praying for equit- able relief, may be referred to a master in chan- cery to state an account. Topliff b. Jackson, (12 Q.) 78 565. 176. A judge presiding in equity may refuse to refer to a master, matters already passed upon by himself. Gilson v. Hutchinson, 120 27. 177. Technical objections to the bill must be taken before a reference to a master, or they are waived. Pingree v. Coffin, (12 G.) 78 288. 178. Where the master examines the defend- ant on oath, without objection on the part of the defendant, the latter cannot afterwards object that the order gave no such authority. Copeland a. Crane, (9 P.) 26 73. 179. As to the mode in which a master should state the account, see Copeland v. Crane, (9 P.) 26 73. 180. In stating the account, he is not confined to the items specified in the bill or answer. Copeland v. Crane, (9 P.) 26 73. 181. An auditor appointed to state an account, upon a bill to redeem a mortgage, may hear evidence and report upon an agreement to add unpaid interest to the principal. Quimby «. Cook, (10 A.) 92 32. 182. A master may, in his discretion, limit a cross examination; and unless the discretion has been abused, an exception to his doing so will not lie. Nichols v. Ela, 124 333. 183. A master may allow a party to testify to a matter affecting the account, although not alleged in the bill. Topliff «. Jackson, (12 G.) 78 565. 184. Where the defendant is decreed to assign a mortgage to the plaintiff, and the case is referred to a master to assess the plaintiff's damages, deducting the mortgage, if the de- fendant fails, at the hearing before the master, to produce and assign the mortgage, the dam- ages may be assessed without deducting its value. Cheney v. Gleason, 125 166. 185. Upon a bill to restrain a city from dis- charging sewage, a master, with full powers, should examine and report upon the schemes proposed by the defendant, although they in- volve the exercise of the right of eminent domain. Breed ». Lynn, 126 367. 186. A master, to whom it is referred to ex- amine and report, whether the defendants nave raised the water of a stream, does not exceed nis EQUITY PLEADING AND PEACTICE, II, (3), (4). 429> functions by reputing that they had "negli- gently and knowingly " done so. g y Heywood v. Miner, 102 466. 187. A master, by leave of the court, may amend his report without giving the parties notice. Heywood v. Miner, 102 466. 188. An objection that the master's report was delivered and filed, without notice, must be taken before filing exceptions thereto. Lamson v. Drake, 105 564. 189. A master's report, made upon hearing the testimony of witnesses, will not be reversed, unless his findings are shown to be clearly erro- neous from the evidence reported. Jones v. Keen, 115 170; Morse v. Hill, 136 60. See, also, Stimpson «. Green, (13 A.) 95 326; Drew v. Beard, 107 64; McDonough v. O'Niel, 113 92; Trow 11. Berry, 113 139; Newton «. Baker, 125 30; Richards «. Todd, 127 167; Whitney «. Leominster Sav. Bk., 141 8,5. 190. The report is not evidence as an adjudi- cation, until it has been accepted, and a decree rendered. Nash «. Hunt, 116 237. 191. An exception to a master's report cannot be considered, unless the report shows that it was distinctly taken before the master. A general exception will not suffice. Baker v. Mayo, 129 517. See, also, Copeland ®. Crane, (9 P.) 26 73; Pin- gree v. Coffin, (12 G.) 78 288; Rennell o. Kimball, (5 A ) 87 356. 192. An exception to the exclusion, by the master, of a question to a witness, cannnot be sustained, unless the materiality of the question appears from the record. Fletcher v. Reed, 131 312. 193. And an exception is ineffectual, unless the evidence is reported, or something appears in the report to sustain it. Boston Iron Co. v. King, (2 C.) 56 400; Adams v. Brown, (7 C.) 61 220; Bliffins v. "Wilson, 113 248; Carpenter v. Cushman, 121 265; Nichols v. Ela, 124 333. 194. And if the evidence is not reported in detail, the court will not recommit the report for that purpose, unless the master was requested to report it. Sparhawk v. "Wills, (5 G.) 71 423. See, also, Nichols v. Ela, 124 333. 195. The presumption is that a commissioner, to whom an issue has been submitted, has cor- rectly applied the principles of law to the facts; and the conclusions of such a commissioner, iipon matters of fact, have the same presump- tions as those of a master, and his general duties are the same as a master's. Pratt «. Lamson, (6 A.) 88 457; Dean e. Emerson, 102 480. 196. It is no ground for sustaining exceptions to a master's report, that some of the findings are irrelevant, and have no bearing upon the case as finally decided. Montague v. Boston & A. Railroad, 124 242. 197. An exception will not lie to the failure of a master to state, upon which of two grounds' he relied, for his conclusion of fact. Nichols v Ela, 124 333. 198. It is not necessary that the master, who reports in favor of the plaintiff, should dis- tinctly negative grounds of defence taken by the defendant. Atlanta Mills v. Mason, 120 244. 199. An objection cannot be first taken, at the argument of the exceptions, that the master's report allows a greater sum than the pleadings claim. Tyng v. Thayer, (8 A.) 90 391." 200. No exception lies, on the ground of in- consistency, to a master's report, which finds an agreement that title to a ship should not vest in a purchaser, till the completion of repairs, and an agreement by the vendor to pay for such repairs. Rennell ». Kimball, (5 A ) 87 356. 201. An exception lies to a report, which er- roneously states that a point is not material, aad for that reason is not decided Rennell v. Kimball, (5 A.) 87 S56. 202. Arguments or suggestions, contained in the report, by which the master was influenced in reaching his conclusion, form no ground of exception, although couched in strong lan- guage. ToplifEu. Jackson, (12 G.) 78 565. [For parallel rulings at law, see Auditor. ' (4.) Evidence: answer as evidence' [For the general rules of evidence, in eqvity causes, see Bvidence.1 203. The rules as to the admission of oral evidence, to vary or affect a written instrument,, are the same in equity as at law. Dwight v. Pomeroy, 17 303; Clark v. Flint, (22 P.) 39 231. 204. As to variance, see Hobart v. Andrews, (21 P.) 38 526 205. Where an answer under oath is waived, the filing of a general replication gives no weight as evidence to an answer under oath. Gerrish «. Towne, (3 G.) 69 82. 206. An answer may be sufficient as a plead- ing, if no exception is taken to it, and yet not be sufficiently full, explicit, and unequivocal, to- be used as evidence. Morse v. Hill, 136 60. 207. "Where the bill set forth specifically a breach of trust, and that the defendant took the property, not in good faith and for value, but. well knowing the facts, and that the trustee had unlawfully conveyed the same, an answer under oath, denying knowledge or notice of any un- lawful conveyance, may be overcome by the testimony of one witness only. Morse v. Hill, 136 60. See, also, Copeland v. Crane, (9 P.) 26 73; Far nam ». Brooks, (9 P.) 26 212; Park- man v. "Welch, (19 P.) 36 231. 208. For an instance of an answer of a similar- character, which was held to be sufficient to' put the plaintiff to his proof, see Buttricku.Holden,(13Met.) 54 355.. 430 EQUITY PLEADING AND PRACTICE, II, (4), (5), (6). 209 An answer, not responsive to the bill, is not evidence of the matters stated therein.. New England Bk. v. Lewis, (8 P.) 25 113, Leach v. Fobes, (11 G.) 77 506. 210 In an action between partners to settle the partnership affairs, eaeh partner has an in- terest adverse to another, and the answer of one cannot be used in evidence to increase the lia- bility of the other. Chapin v. Coleman, (11 P.) 28 331. 211. But semble, that, if the partnership con- sists of the plaintiff on one part, and all the defendants jointly on the other part, the answer of one defendant might be evidence to charge the others. Chapin «. Coleman, (11 P.) 28 331. 212 And a defendant's answer, which is re- sponsive to the bill, may be evidence in favor of his co-defendant, especially if the latter is a mere stakeholder Mills » Gore, (20 P.) 37 28. (5.) Miscellaneous interlocutory proceed- ing*. [As to voluntary dismissal of the bill, see Discon- tinuance As to receiver, see Receiver. As to injunction, see Injunction.] 213. Piling and opening a deposition is equivalent to publication in the English prac- tice. A particular rule for publication is not necessary. Charles B. Bridge v. Warren Bridge, (7 P.) 24 344. 214. The English rule, as to setting down a cause for hearing, is not in force here; and upon due notice the cause stands for a hearing. Charles B. Bridge ®. "Warren Bridge, (7 P.) 24 344. 215. A commission may be issued, even after four months from the filing of the replication. Pingree r>. Coffin, (12 C.) 66 600. 216. The English rule, requiring an affidavit in case of a lost deed, is not in force here. Campbell ®. Sheldon, (13 P.) 30 8. 217. The court will direct a defendant, who admits his possession of a bond in controversy, to deposit it with the clerk, with leave to the plaintiff to take a copy. Keith v. Woombell, (8 P.) 25 211. (6.) Hearing; rehearing. [See, also, uditor; Report.] 218. A general replication puts in issue all the matters of fact alleged in the answer; and a hearing upon bill, answer, and replication, necessarily involves the trial of such issues, and the consideration of any evidence thereupon offered by either party. O'flare v. Downing, 130 16. See, also, Taunton v. Taylor, 116 254. 219. But where the cause is heard upon bill and answer only, averments in the bill, denied upon oath in the answer, are not taken as true; and allegations in the answer are taken as true' whether responsive to the bill or not. Tainter u Clark, (5 A.) 87 66; Perkins v. Nichols, (11 A.) 93 542. 220. Where the cause is set down for hearing upon the defendant's plea, evidence previously taken by the defendant cannot be considered Hancock v. Carlton, (6 G.) 72 39. [As to the plaintiff's right to file a replication anil take testimony, where the cause is so set down see ante, arts. 103, 120.1 ' 221. Where, on a hearing before a single justice, a question of fact is decided by him upon the evidence, no exception can be taken although the cause may be further heard by the full court, if no objection is made, upon evi- dence and questions of fact not considered upon the previous hearing. Parker v. May, (5 C.) 59 336. 222. Where the cause is brought to a hearing before a single justice, and no decree is rendered by him, but the cause is reserved for the lull court upon his report, the report submits to the full court for revision, the inferences of fact, as well as the conclusions of law, involved in it! Harris v. Mackintosh, 133 228. See, also, Wright v. Wright, (13 A ) 95 207' Parks f>. Bishop, 120 340; McConnellu. Kelfey, 138 372. See, also, Kepoet. 223. Where the evidence is reported by an auditor, it may be submitted as all the evidence in the cause, subject to any objections of in- competency. Powers v. Bussell, (13 P.) 30 69. 224. If the cause is heard before a single justice, upon a master's report, which does not fully state the facts, the justice may draw infer- ences of fact, which will not be disturbed by the full court, unless clearly erroneous. Bacon ». Abbott, 137 397. 225. Upon a bill to redeem, the court may determine what shall be a reasonable and equi- table performance of the condition; and if the mortgagee has expended for repairs more than the rents and profits, it may make the compu- tation. Parsons v. Welles, 17 419. [See Mortgage, IV, (3).] 226. Where the assignee of a trust fund riles a bill for reimbursement from the trustee, alleging that the assignment, which purported to be made upon the consideration of $500, was in fact given as security for outlays to be made by him, he must prove the amount of his out- lays, and can have relief only to the extent of his proof. Haskell v. Codman, (8 Met.) 49 536, 227. After argument before the full court, a, rehearing wiil not be granted, unless probable cause is shown, and the court, upon an inspec- tion of the petition for rehearing, sees fit so to order. Winchester v. Winchester, 121 127. See, also, ringree v. Coffin, (12 G.) 78 288. 228. The application for rehearing is ad- dressed exclusively to the discretion of the court " Winchester v. Winchester, 121 1*7. See, also, Shannon v. Shannon, (10 A-) 92 249. 229. A certificate of counsel should be an- nexed; it must specify the grounds; and, sola. EQUITY PLEADING AND PEACTICE, II, (6), (7). 431 as it involves questions of fact, it must be sup- ported by affidavits. Winchester v. "Winchester, 121 127. 230. Where the petitioner, with knowledge of the facts, appealed from the decree, and on the appeal was informed that he had mistaken his remedy, and took no steps for eight months thereafter to procure a rehearing, during which time he acted under the decree, he was held to have waived his right to a rehearing. Winchester v. Winchester, 121 127. 231. See further, as to laches, Clapp v. Thaxter, (7 G.) 73 384. 232. A motion for a rehearing upon a ques- tion of costs, respecting which no suggestion was made at the original hearing, will not be entertained. Bradlee v. Appleton, (2 A.) 84 93. 233. After the decree is entered, there can be no rehearing to correct an alleged error on the merits; the remedy is by bill of review. Thompson «. Goulding, (5 A.) 87 81. (7.) Decree. [See, also, ante, I, (4).] 234. No decree is final, which leaves any- thing open to be decided by the court, and does not determine the whole case. Forbes «. Tuckerman, 115 115. 235. An order sustaining or overruling a demurrer is an interlocutory, not a final decree, unless, where the demurrer is sustained, the hill is dismissed. Forbes v. Tuckerman, 115 115; Cheney v. Gleason, 125 166; Parkers. Flagg, 127 28. See, also, Merchants' Bk. v. Stevenson, (7 A.) 89 489. 236. And even where an order, overruling a demurrer, is followed by an order taking the bill as confessed, and referring it to a master to take an account, neither is a final decree; a::d upon the return of the master's report, the final decree may be the other way. Forbes v. Tuckerman, 115 115. See, also, Gerrish v. Black, 109 474; Russell e. Lathrop, 122 300. 237. Upon appeal from the final decree, the question whether the interlocutory decree was erroneous is open. Parker v. Flagg, 127 28. 238. By our practice, an entry upon the docket of " Bill dismissed " is in itself a final decree; and if a formal order is afterwards entered, it is a mere extension of the final decree ahvady entered, and relates back to the time of that entry. Snell v. D wight, 121 848. See, also, Foote v Gibbs, (1 G.) 67 412; Winslow v. Otis, (5 G.) 71 360; Clapp v. Thaxter, (7 G.) 73 384. 239. A dismissal of a bill, after a hearing on the merits, is a bar to a new suit. Foote «. Gibbs, (1 G.) 67 412; Durant e. Essex Co., (8 A.) 90 103; Lewis v. Lewis, 106 309. ♦•. Reed, (11 P.) 28 446; Miller ». Lincoln, (6 G.) 72 556. 271. Costs of all parties to a suit for contri- bution, brought by directors of a trading asso- ciation against the members, taxed as between solicitor and client, were assessed ratably upon the solvent members, one bill only being allowed to those who appeared by the same solicitor. Tyrrell «. Washburn, (6 A ) 88 466. 272. Where an administrator brings a bill to recover, for the benefit of creditors, the subject of a donatio mortis causa, the defendant, if he has not offered to pay the debts, but has de- nied his liability, will not be exonerated from paying costs and expenses of administration. Chase *. Redding, (13 G.) 79 418. 273. A trustee, or a quasi trustee, will be charged with the costs of a suit which his owe conduct has made necessary. Iasigi v. Chicago, etc., Railroad, 1^» 46. 274. So where he has mingled the trust fund with his own property, and has rendered an in- correct account. Bogle ». Bogle, (3 A.) 85 158. 275. As to assignees of an insolvent debtor. Peck v. Stimpson, (20 P.) 37 312; Bryant v. Russell, (23 P.) 40 508. 276. In general, where a bill is necessary, to consequence of an ambiguity in a will, the ^cobb of all parties, taxed as between solicitor ana client, will come out of the general estate. Deane •. Home for A. C. Women, 111 132; Morse *. Stearns, 131 389. bee, also, Sawyer e. Baldwin, (20 P.) 37 «». EEROR, WRIT OF, I. 433 Bliss v. American Bible Soc, (2 A.) 84 ' 334; Abbott «. Bradstreet, (3 A.) 85 587. 277. Or, where that is equivalent, they shall be borne by the residuary legatees. Bowditch v. Soltyk, 99 136. 278. So where questions of preferences of legacies and marshalling of assets have arisen, in consequence of the deficiency of assets to meet the requirements of the will. Towle ■v. Swasey, 106 100. 279. In general, costs and counsel fees of all parties, to a suit concerning the administra- tion of a trust, will be allowed out of the fund. Amory «. Lowell, (1 A.) 83 504,508, note; Kinmouth v. Brigham, (5 A.) 87 270. 280. So upon an executor's or other trustee's bill for instructions, costs of all parties will generally be allowed out of the estate. Monks v. Monks, (7 A.) 89 401; Wil- cox v. Wilcox, (13 A.) 95 252; Amory v. Green, (13 A.) 95 413; Brooks v. Everett, (13 A.) 95 457; Esty v. Clark, 101 36; Sargent «. Sargent, 103 297; Baker «. Clarke Inst'n, etc., 110 88. 281. But where the question arises, only with respect to a particular portion of the tniBt fund, the costs will come out of that fund, not out of the general estate. - ilow v. Morong, 103 287. 282. And where the question arises, only by reason of the executor's own unfounded claim, he will be charged personally with all the costs. Dane v. Walker, 109 179. 283. So where it arises from an unfounded claim of one legatee, the share of that legatee will be charged with all the costs. Mandell v. Green, 108 277. 284. In taxing costs for counsel fees, to be paid out of a fund, the court will not allow all charges, which might be proper, between coun- sel and client, but will rather refer to the com- pensations of public officers for similar services. Frost v. Belmont, (6 A.) 88 152. 285. The plaintiffs taxable costs, in a bill to enjoin the illegal distribution of a town's por- tion of the surplus revenue, were directed to be paid out of the surplus revenue. Pope «. Halifax, (12 C.) 66 410. 286. Costs upon a bill of interpleader, as be- tween solicitor and client, are always allowed out of the fund to the plaintiff, if he has been guilty of no fault. Loring v. Thorndike, (5 A.) 87 257; lowles. Swasey, 106 100. , 287 But costs of a defendant in a bill of interpleader will not be allowed, where the only cause of the suit is his unjust claim to property which is not his. Cobb ». Rice, 130 231. Error, writ of. I. General Rules. H. In a civil Cause. (1.) Parties (8.) Upon what judgments. Vol. 1—55 (3.) For what causes. (4.) Proceedings; judgment. III. In a criminal Cause. [For writs of error to the TJ. S. supreme court, see Supreme Court op the United Sstates. For ad- ditional and parallel cases, relating to writs of error, see Amendment ; Appeal; Arbitration; Audita Querela; Certiorari; Conviction and Sen- tence; Exception; Habeas Corpus; Judgment; Jurisdiction.! I. General Rules. 1. Definition of a writ of error. Ex parte Cooke, (15 P.) 32 234; Thayer v. Comm., (12 Met.) 53 9. 2. A writ of error lies from the supreme ju- dicial court, to any inferior court of record, pro- ceeding according to the common law, even though the court derives its jurisdiction from a statute, which regulates the proceedings. Martin v. Comm., 1 347. £ee, also, Savage v. Gulliver, 4 171; Coi-m. v. Ellis, 11 462; Smith v. Rice, 11 507. 3. Any judgment upon which a person is liable to be, and is, in fact, imprisoned, is such a final judgment as entitles him to sue out a writ of error. Comm. v. Poster, 122 317. See, also, Bryan v. Bates, (12 A.) 94 201. 4. Error lies on the judgment of a justice of the peace. Clap v. Clap, 4 520; Valier v. Hart, 11 300; Arnold t>. Tourtellot, (13 P.) 30 172; Gay v. Richardson, (18 P.) 35 417; Thayer «. Comm., (12 Met.) 53 9. 5. It lies to the common pleas, from a judg- ment rendered upon a report of referees, on a submission before a justice of the peace, or upon appeal from commissioners on an insol- vent estate. Short v. Pratt, 6 496; Lyman v. Arms, (5 P.) 22 213; Waters e. Ran- dall, (8 Met.) 49 132. 6. It lies upon a Judgment in partition. Symonds v. Kimball, 3 299. 7. Or in an action of review. Hall v. Wolcott, 10 218; Johnson v. Wetherbee, (3 P.) 20 247 8. It lies to the judge of probate, where he proceeds, according to the common law, as where he commits a boy to the reform school. Fitzgerald v. Comm., (5 A.) 87 509. 9. But not to the probate court. Smith B.Rice, 11 507. 10. Or to a justice of the peace, in proceed- ings under the former militia law. Pratt «. Hall, 4 239; Winslow v. An- derson, 4 376; Edgar v. Dodge, 4 670; Ban v. Brigham, 5 406. 11. Or to review proceedings under the mill act. Vandusen v. Comstock, 3 184. 12. Or bastardy proceedings. Drowne v. Stimpson, 2 441. 13. Nor does it lie, in any case, where the proceedings are not according to the course of the common law. Martin i>. Comm., 1 347; Melvin v. 434 EREOE, WRIT OF, II, (1), (2). Bridge, 3 305: Ball 0. Brigham, 5 406; Comm. i>. Ellis, 11 462; Ex parte Cooke, (15 P.) 32 234; and the cases above cited. 14. In a criminal cause, it does not lie in be- half of the Commonwealth. Comm. ii. Cummings, (3 C.) 57 212. 15. In a criminal cause, it is the right and privilege of the defendant to bring error and reverse an erroneous judgment; but if he sub- mits to the judgment and sentence, he is not liable to another conviction and punishment for the same offence. Comm. v. Loud, (3 Met.) 44 328; Comm. » Keith, (8 Met.) 49 531. IL In a crvTL Cause. (1.) Parties. 16. All the parties against whom a judgment is rendered, or, if any have died, their repre- sentatives, must join in a writ of error to re- verse it. Andrews v. Bosworth, 3 223; Porter 0. Rummery, lO 64; Shirley «. Lunen- burgh, 11 379; Gay v. Richardson, (18 P.) 35 417. 17. And if a joint judgment against A and B is rendered, where the service on B was defect- ive, and B releases the error, A cannot maintain the writ in the names of both. Ellis v. Bullard, (11 C) 65 496. 18 But where each of those privy to a judg- ment, has a distinct and several interest, each may have a distinct writ of error, and this not- withstanding a release by another. Porter 1>. Rummery, 10 64; Shirley®. Lunenburgh, 11 379. 19. Thus an heir or devisee, and an executor or administrator, may have several writs of error on a judgment against the deceased. Porter v. Rummery, 10 64. 20. Where judgment is rendered against one only of three defendants, taking no notice of the other two, he alone can maintain error, and a writ in favor of, the three will be quashed. Shaw *. Blair, (4 C.) 58 97. 21. Where in a real action the tenant recovers costs, and dies, the demandant cannot bring error against the executor only, but must join the heir, or issue a scire facias against him. Porter v. Rummery, lO 64. - 22. Before the statute, an administrator de 'bonis non could not bring error, to reverse a judgment recovered by the executor, for want of privity between them. Grout v. Chamberlin, 4 611. 23. See further, as to the degree of privity required, Leonard 0. Bryant, (11 Met.) 52 370. 24. Where a pauper's settlement was ad- judged in a complaint between two towns, with- out notice to him, he can bring error, but not the towns. Shirley 0. Lunenburgh, 1 1 379. 25. If some of several parties choose to abide an erroneous judgment, a summons and sever- ance will take i lace, as to those who choose not to prosecute the writ. Shirley v. Lunenburgh, 11 379., 26. Upon a writ of error in favor of the prin- cipal defendant in a foreign attachment, he cannot avail himself of the want of service on the trustee; the latter only can do so. Whiting 0. Cochran, 9 532. 27. An assignee, under the bankrupt act of 1841, may maintain error upon a judgment against the bankrupt. Day 0, Laflin, (6 Met.) 47 280. 28. So may an assignee under the I solvent law. Johnson 0. Thaxter, (7 G.) 73 & Johnson 0. Thaxter, (12 G.) 78 198. 2.) Upon what judgments. ISce, also, ante, I."j 29. Generally, error will not lie upon a judg ment, from which an appeal might have been taken, Mountfort 0. Hall, 1 443; Savage 0. Gulliver, 4 171; Jarvis 0. Blanchard, 6 4; Champion 0. Brooks, 9 '" Hemmenway 0. Hickes, (4 P.) 21 497 Gay 0. Richardson, (18 P.) 35 417; Monk v Guild, (3 Met.) 44 372; Ellis 0. Bullard, (11 C.) 65 496. See, how- ever, Skipwith 0. Hill, 2 35. 30. And where a party cannot appeal, be- cause he is an infant or otherwise incompetent, or was not notified, he may bring error. Skipwith v. Hill, 2 35; Putnam ». Churchill, 4 516; Valier*>, Hart, 11 300; Shirley 0. Lunenburgh, 11 379; Smith ». Rice, 11 507, Arnold «. Tourtellot, (13 P.) 30 172; Gay «. Richardson, (18 P.) 35 417., 31. An agreement not to appeal does not pre- clude the party from bringing error. Putnam 0. Churchill, 4 516. 32. And where one defendant had notice, and might have appealed, this does not preclude his co-defendants, who had no notice, from bringing error, and joining him. Gay 0. Richardson, (18 P.) 35 417. 33. A statute, giving an appeal where no appeal would lie, does not take away the prior right to bring error. Day 0. Laflin, (6 Met.) 47 280; Peck 0. Hapgood, (10 Met.) 51 172; Hender- son 0. Adams, (5 C.) 59 610. 34. Error does not lie for the entry of a judg- ment by the clerk, upon a misprision of the direction of the court; the remedy is by an application below. Somerville0 Piske, 137 91. 35. Error does not lie upon a judgment rendered upon a case stated, although it pro- vides that error may be brought. Alfred 0. Saco, 7 380; Carroll » Richardson, 9 3i9; Gray 0. Storcr, IV 163. Wellington 0. Stratton, 11 "l 36. Nor where judgment was rendered upW facts proved at a jury trial and reported UJ consent. „ „_ Johnson Shed, (21 P.) 38 235. ERROR, WRIT OF, II, (3). 435 37. Or upon a report of the evidence and of the -judge's rulings. McFadden v. Otis, 6 323; Storer v. White, 7 448; Peirce ». Adams, 8 383; Coolidgo v. Inglee, 13 26. (3.) For what causes. 38. Error lies to reverse a judgment in a cause, whereof the court rendering it had no iurisdiction. 1 Waters s. Bandall, (8 Met.) 49 132; Gray v. Thrasher, 104= 373. 39. Or where the court erroneously dismissed a cause, for a supposed want of jurisdiction. Sumner v. Finegan, 15 280. 40. Want of jurisdiction is not cured, so as to toll a writ of error, by the defendant's ap- pearance and answer. Gray «. Thrasher, 104 373. See, also, Elder v. Dwight Man. Co., (4 G.) 70 201; Ashuelot Bk. v. Pearson, (l4 G.) 80 521. 41. Where the want of jurisdiction appears, as matter of law, upon the face of the record, the plaintiff may bring error for that cause. Jordan v. Dennis, (7 Met.) 48 590, as explained in Riley v. Waugh, (8 C.) 62 220. 42. And error in fact cannot be asigned, which contradicts the record, either to show want of jurisdiction, or any other ground of Riley v. Waugh, (8 C.) 62 220; Gray ,i>. Cook, 135 189. See, also, Whiting v. Cochran, 9 532. 43. Or where the matter of fact might have heen put in issue, and tried in the original ac- tion. Raymond v. Butterworth, 139 471. 44. This rule, however, does not prevent the plaintiff in error from showing that the record does not bind him as a party or a privy, as where jurisdiction was gained by his appear- ance by an attorney, and the error assigned is, that he did not authorize the attorney to ap- pear. Bodurtha v. Goodrich, (3 G.) 69 508. 45. Error lies to reverse a judgment against an infant, for whom no guardian ad litem was appointed. Knapp ii. Crosby, 1 479; Valier ». Hart, 11 300; Goodridge ». Ross, (6 Met.) 47 487; Crockett v. Drew, (5 G.) 71 399; Swan v. Horton, (14 G.) 80 179. 46. And a new promise, after the infant at- tained majority, is not a release or waiver of the error. Goodridge «., Ross, (6 Met.) 47 487. 47. Error lies to reverse a judgment against a lunatic under guardianship, where no notice of the suit was given to the guardian. White t>. Palmer, 4 147. 48. Or a judgment in favor of a surviving promisee, and the administrator of the deceased promisee, they having joined in the action. Smith v. Franklin, 1 480. 49. It lies to reverse a judgment, rendered upon a writ illegally served. Hart i). Huckins, 5 260; Hart v. Huckins, 6 399; Arnold v. Tourtellot, (13 P.J 30 172; Gay v. Richardson, (18 P.) 35 417; Smith v. Paige, (4 A.) 86 94. 50. So where the writ was against Joseph H. and Phineas H., and the declaraeion allege a promise by " said John and Phineas." Hemmenway v. Hickes, (4 P.) 21 497. 51. But where a mistake in the name was corrected by amendment, error does not lie. Langmaid v. Puffer, (7 G.) 73 378. 52. Error lies upon a judgment rendered upon an award or report of referees, under the statute, where the statute was not strictly pur- sued, or the judgment does not pursue the award or report. . Nelson ii. Andrews, 2 164; Mansfield v. Doughty, 3 398; Bullard v. Coolidge, 3 324; Monosiet v. Post, 4 532; Jones «. Hacker, 5 264; Short v. Pratt, 6 496; Horton v. Wilde, (8 G.) 74 425; Woolson v. Boston & W Railroad, 103 680. 53. But not where the judgment was for a less sum than the report, the plaintiff having remitted the excess. Phelps v. Goodman, 14 252. [As to error for an illegal award of costs, see Costs, IV.l 54. A judgment will not be reversed on error for a mere informality, and where, if it should be reversed, the new judgment would be sub- stantially the same. Buckneld v. Gorham, 6 445. 55. Nor for a formal defect in the writ or proceedings, or a variance, which was waived by the subsequent act or omission of the plain- tiff in error, or by his failure to object season- ably. Johnson v. Harvey, 4 483; Clap v. Clap, 4 520; Storer n. White, 7 448; Peirce v. Adams, 8 383; Johnson v. Shed, (21 P.) 38 225; Fay v. Hayden, (7G.) 73 41. 56. Nor for a judgment rendered for the plaintiff in error for too small a sum, through a mistake in casting interest, the remedy being a petition for a new trial. Whitwell v. Atkinson, 6 272. 57. Nor by reason of informality in a ver- dict, which can be cured by motion below. Porter v. Rummery, lO 64; Silloway ii. Hale, (8 A.) 90 61. 58. Nor because execution was issued upon a judgment against a nonresident, without the statutory bond. Johnson v. Harvey, 4 483. 59. Nor where judgment was rendered upon a former judgment, in which there was error. Hawes i>. Hathaway, 14 233; Crock- ett v. Drew, (5 G.) 71 399. 60. Miter, if the former judgment could Hot be enforced. Crockett v. Drew, (5 G.) 71 399. 436 ERROR, WRIT OF, II, (3), (4). 61 It does not lie to reverse a judgment upon default, because the record does not expressly state that the court inquired into the damages. Jarvis i> Blanchard, 6 4; Fairfield v. Burt, (11 P ) 28 244. 62. Nor because the plaintiff below was al- lowed to amend by filing new counts, which might be for the same cause of action. Clarke v. Lamb, (6 P.) 23 512. 63. Nor after verdict, because an issue ten- dered by the plaintiff was not joined. "Whiting i). Cochran, 9 532. 64. But it lies where the verdict did not follow the issue joined, and the judgment did not follow the verdict. Brown v. Chase, 4 436; Holmes v. Wood, 6 1. 65 Or where the judgment was for more than the ad damnum, the plaintiff not having remitted the excess, although the defendant had been committed in execution. Grosvenor «. Danforth, 16 74; Hem- menway v. Hickes, (4 P.) 2 1 497. 66 Or where the judgment was for causes of action, which cannot legally be joined. Fairfield v. Burt, (11 P.) 28 244; "Whiting «. Cook, (8 A.) 90 63. 67. Or where it was rendered upon a writ of review, taken out as of right, by a party not entitled to it. Hall v. Wolcott, lO 218. 68. Or upon scire facias brought after the time limited by statute. Gass v. Bean, (5 G.) 71 397. 69. Or upon an erroneous dismissal of an appeal. Keen «. Turner, 13 265. 70. Or where a general judgment was ren- dered upon two counts, one of which would be bad upon a general demurrer. Dryden v. Dryden, (9 P.) 26 546. 71. But not where it appears that both were for the same cause of action, and one is good. Mullaly v. Holden, 123 583. 72. It lies to correct an erroneous judgment upon an original writ, or an erroneous award of execution upon a judicial writ; but where there is a regular judgment, or a regular award of execution, if an execution afterwards ir- regularly issues, the remedy is by audita querela, or motion. Johnson v. Harvey, 4 483. (4.) Proceedings; judgment. 73. A writ of error is grantable without petition, ex debito justitiae. G. 8., Ch. 146, §1; P. S., Ch. 187, J 1 Skipwith v. Hill, 2 35; Pembroke «. Abington, 2 142; Drowne v. Stimpson, 2 441. 74. It iies only after judgment. Drowne v. Stimpson, 2 441. 75. And semble, that it cannot be brought by the defendant before judgment upon all the counts, nor by the plaintiff, until all the pleas are disposed of. Comm. v. Foster, 122 317. See per Gray, C. J., p. 323. 76. It need not be indorsed. Grosvenor *. Danforth, 16 74, 77. It may be sued out by the attorney in the court below, without special authority. Grosvenor v. Danforth, 16 74. 78. For rulings, now obsolete, as to the county to which the writ must be returnable' granting a supersedeas to stay proceedings; and the time within which the writ-must issue, see Bailey ». Baxter, 1 156; Smith v. Franklin, 1 480; Pembroke v. Abington 2 142; Eager «. Comm., 4 182; He u' Cleworth, (10 C.) 64 415. 79. An objection to the jurisdiction may be taken at any stage of the proceedings. Martin ». Comm., 1 347; Savage* Gulliver, 4 171. ^ " 80. A writ, brought by parties not entitled to. it, will be quashed on motion. Andrews?). Bosworth, 3 223; Shaw v Blair, (4 C.) 58 97. 81. "Where the record shows that the plaintiff in error might have appealed, the court will quash the writ ex officio, or upon plea in abate- ment. Savage v. Gulliver, 4 171; Jarvis u. Blanchard, 6 4. 82. An assignment of errors should not be inserted in the writ, but in the seire facias to hear errors. Pembroke *. Abington, 2 142; Comm. v. Sheldon, 3 188; Peirce v. Adams,. 8 383. 83. As to the general effect of the practice act, upon proceedings on writs of error, see Eliot v. McCormick, 141 194. 84. The names of all the persons indorsed on the original writ, and to whose use an action on a probate bond was brought, must be inserted in the seire facias to hear errors in the judg- ment in such an action. Glover ». Heath, 3 252. 85. A parly cannot assign for error in fact, that which contradicts the record. "Whiting «. Cochran, 9 532; Riley v. "Waugh, (8 C.) 62 220; Gray v. Cook,. 135 189. 86. Nor that which is not to his prejudice Shirley v. Lunenburgh, 11 379. 87. The plaintiff in error, who has failed to prove an error assigned, cannot reassign another error, or have an assignment of error restored, which has been stricken out. Hathaway v. Clark, (7 P.) 24 145. 88. An error in law and an error in fact may be joined; and more than one error in fact may be assigned. Eliot v. McCormick, 141 194. 89. The time for pleading to a writ of error may be enlarged under the rule. Tufts 1>. Newton, 119 476. 90. The plea in nulloest erratum is in the nature of a demurrer, and admits the facts assigned for error. „ _ _ nQ Bodurtha v. Goodrich, (3 G.) 69 508. 91. And the defendant would not formerly be allowed to plead another plea with rt Parker v. Gilson, 1 230. ERROR, WRIT OF, II, (4); III. 437 92. Now, semble, that the court may direct the framing of the issue, and allow the defend- ant to plead in nullo, etc., and file a specifica- tion of other defences. Goodridge v. Boss, (6 Met.) 47 487. 93. Upon error, a judgment may be affirmed in part and reversed in part, if the parts are dis- tinct. Cummings v. Pruden, 11 206; John- son v. Wetherbee, (3 P.) 20 247; Man- sur v. Wilkirfe, (1 Met.) 42 488; Jordan a. Dennis, (7 Met.) 48 590. 94. Before the statute it was held, that upon reversal, the judgment should be such as the co;irt below ought to have given, and that the plaintiff in error should be restored to all things that he had lost. White v. Palmer, 4 147; Jones v. Hacker, 5 264; Cummings v. Noyes, 10 433; Comm. v. EUis, 11 462. 95. But if there were several issues, and a verdict was good, as to one, and not as to the other, a venire de novo would be awarded. Porter v. Rummery, 10 64. 96. And if error was committed by a justice of the peace, trying a cause without a jury, the judgment would be reversed without remitting the cause. Howe v. Gregory, 1 81. 97. Upon reversal of a judgment, which has been satisfied by a levy and extent upon land, the court will not award restitution, but will leave the party to his writ of entry. Horton v. "Wilde, (8 G.) 74 425. 98. In such a case, a recovery upon a writ of entry will avoid a mortgage by ihe judgment creditor, notwithstanding the mortgagee's good faith. Delano v. Wilde, (11 G.) 77 17. 99. Upon an information by the attorney- general, in a case where the statute awards one third of a penalty to the informer, the court, upon reversing a judgment, which awarded one third to a person, who was not shown by the record to be the informer, awarded the whole to the Commonwealth. Howard v. Comm., 13 221. 100. So a judgment awarding executions to legatees, in an action on a probate bond, with- out any decree for payment of their legacies, was reversed; but the court awarded execution to the judge of probate for the amount of the (Personal estate, for the use of those interested. Glover v. Heath, 3 252. 101. Upon reversal of a judgment against an absentee, for want of the statutory notice, the court cannot award such notice. Packard v. Matthews, (9 G.) 75 311. 103. Where an award of execution is set aside on error, this does not affect the judgment. John?on v. Harvey, 4 483; Whiting e. Cochran, 9 532. HI. In a criminal Cause. 103. A writ of error in a capital cause is re- stricted by the statute, and in one case the application was directed to be heard by the full court. Webster ». Comm., (5 C.) 59 386. 104. An affirmance of the judgment upon a plea of in nullo, etc., is a bar to a second writ for any cause then apparent on the record. Booth «. Comm., (7 Met.) 48 285. 105. But where error arises from matter sub- sequent to the former decision, a second writ lies. Booth v. Comm'., (7 Met.) 48 285. See, also, Wilde v. Comm., (2 Met.) 43 408; Hopkins i>. Comm., (3 Met.) 44 460. 106. The writ lies to reverse a judgment, although an appeal also lies. Ex parte Cooke, (15 P.) 32 234; Thayer®. Comm., (12 Met.) 53 9. 107. It lies to reverse an erroneous sentence. In re Riley, (2 P.) 19 172; Ex parte Cooke, (15 P.) 32 284; Wilde v. Comm., (2 Met.) 43 408. 108. Two who are jointly convicted, and severally sentenced to longer terms than the law allows, may join in a writ of error. Sumner •». Comm., (3 C.) 57 521 109. As to an election between a writ of error and a habeas corpus. In re Feeley, (12 C.) 66 598. See, also, Habeas Corpus. 110. The prosecuting officer is not bound to act upon the writ, until fourteen days after a scire facias to hear errors has been served upon him. Christian v. Comm., (5 Met.) 46 334. 111. Upon a suggestion of the diminution of the record, the court will award a certiorari to bring up the entire record. Turns v. Comm., (6 Met.) 47 224; Crimm®. Comm., 119 326. 112. In such a case, the cause is determined upon the amended record, sent up upon the certiorari. Crimm v. Comm., 119 326. 113. The plea in nullo est erratum is in the nature of a demurrer to the assignment of errors. Booth v. Comm., (7 Met.) 48 285. See, also, Haggett v. Comm., (3 Met.) 44 457. j.14. New errors may be assigned at the hearing, viva voce, under suitable restrictions against surprise. Booth i>. Comm., (7 Met.) 48 285. 115. If one of two counts in an indictment is good, and one bad, the presumption is that the sentence, on a general verdict of guilty, was awarded on the good count, and the judg- ment will not be reversed if it is applicable to that count. Brown v. Comm., 8 59; Jennings v. Comm., (17 P.) 34 80; Josslyn v. Comm., (6 Met.) 47 236. 116. And where the record does not show whether one or two offences were proved, the court cannot presume that they are the same offence, where the indictment ccntains two 438 ERROR, WRIT OF, III— ESCAPE, I. counts for different crimes on the same day, and a general verdict of guilty was rendered. Carlton «. Comm., (5 Met.) 46 532; Crowley «. Comm., (11 Met.) 52 575. 117. In such a case, it will be presumed that the sentence was according to the law, appli- cable to the facts proved. Carlton v. Comm., (5 Met.) 46 532; Crowley v. Comm., (11 Met.) 52 575; Kite ■b. Comm., (11 Met.) 52 581. # [See Conviction and Sentence.] 118. And where a general verdict of guilty is rendered upon an indictment, charging adul- tery on three different days with a woman of one name, and on another day with a woman of another name, and the sentence exceeds that warranted for a single adultery, it cannot be presumed that only one offence was committed. Booth v. Comm., (5 Met.) 46 535. 119. A formal error in an indictment is cured by verdict and judgment, and is not available on a writ of error. Pettes v. Comm., 126 242. 120. The judgment cannot be reversed for any matter, put in issue and tried in the court below. Joan v. Comm., 136 162. 121. In a criminal cause, if the judgment is entire, and erroneous in part, it must be re- versed. Christian v. Comm., (5 Met.) 46 530. 122. Where the same convict brings a writ of error to reverse a judgment, and another writ to reverse a sentence to additional punish- ment, upon an information founded upon such judgment, if the first judgment is reversed, the sentence upon the information falls with it, if the error assigned is matter of law. Hutchinson v. Comm., (4 Met.) 45 359. 123. The provision, that upon reversal for error in the sentence, the supreme judicial court may sentence anew, or remand the cause for sentence, G. S., Ch. 146, § 16; P. S., Ch. 187, § 13, is not unconstitutional. Jacquins e. Comm., (9 C.) 63 279. 124. Before that provision (St. 1851, Ch. 87), in the case of an erroneous sentence, the judg- ment must have been reversed and the prisoner discharged, whether the sentence was greater or less than the law allowed. Wilde v. Comm., (2 Met.) 43 408 Shepherd v. Comm., (2 Met.) 43 419 Stevens v. Comm., (4 Met.) 45 360 Christian v. Comm., (5 Met.) 46 530 Bice «. Comm., (12 Met) 53 247; Sum- ner v. Comm., (3 C.) 57 521; Jacquins v. Comm., (9 C.) 63 279. 125. A defendant sentenced under that pro- vision, to a lesser punishment, is entitled to costs. Haynes i>. Comm., 107 198. 126. A defendant discharged upon error is entitled to travel, as part of his costs, although during the pendency of the writ, he was im- prisoned. Brittona. Comm., (1 C.) 55 302. Escape. I. In a civil Catjsb. II. In a criminal Cause. [See, also. Arrest; Execution; Jail: p nn » Debtor ; Kescue.] ' UUB I. In A civil Catjsb. [As to the measure of damages Jn an action for nn escape, see Damages, IV, (6).] 4 " u 1. Qu., whether breaking jail, by one con fined on mesne process, was an offence at com mon law. Comm. v. Barker, 133 399. 2. One who has been arrested upon mesne process, admitted to bail, and surrendered by his bail to the keeper of a jail, is "lawfully im- prisoned," under the statute, and punishable by indictment for a forcible escape. Comm. «. Barker, 133 399. 3. An officer is not liable for the escape of a debtor arrested upon insufficient process. Hitchcock «. Baker, (2 A.) 84 431 4_. Nor for an escape from mesne process, which might have been prevented by calling for aid. Whitehead v. Keyes, (3 A.) 85 495. 5. But he is bound to use all reasonable per- sonal exertions to secure his prisoner, and it is for the jury to determine whether he has done so. Whitehead v. Keyes, (3 A.) 85 495. 6. He is not liable if, after a. negligent escape, he retakes the debtor, upon fresh pursuit, and the latter is then forcibly rescued. Whitehead v. Keyes, (3 A.) 85 495. 7. In an action for an escape, the plaintiff need not prove an entry of the original writ, and the action will lie, although the writ was returned and placed by the clerk in the files of non entries. Whitehead v. Keyes, (3 A.) 85 495. 8. An officer who voluntarily permits an es- cape of a debtor, arrested upon execution, can- not re-arrest him upon the same execution. Comm. «. Drew, 4 391; Brown v. Getchell, 11 11; Houghton v. Wilson, (IOC.) 76 365; Doane *. Baker, (6 A.) 88 260. . 9. And a magistrate, before whom the debtor is brought upon the second arrest, has no juris- diction to pass upon the officer's right to make it. Doane v. Baker, (6 A.) 88 260. ^.0. If a sheriff allows a debtor, surrendered by his bail, and committed, to go at large be- fore the 30 days expire, he is liable for an escape, although he was not furnished with a copy of the order of commitment. Randall s. Bridge, 2 549. 11. Where one committed on execution claimed support as a pauper, and was dis- charged in 30 hours, on the officer's informa- tion to the jailor that neither the creditor nor his attorney would provide for the prisoner's support, the sheriff is not liable. Blood v. Austin, (3 P.) 20 259. ESCAPE, I; II— ESTATE. 439 12. A sheriff. is liable for an escape from mesne process, although the defendant was lured into the Commonwealth for the purpose ' of being arrested. Griffin 0. Brown, (2 P.) 19 304 13. "Where a constable takes to the jail a debtor, arrested upon an execution, and leaves no copy of the execution with the jailor, who thereupon suffers the prisoner to go at large, this is an escape from the constable, not from the jailor. Houghton «. Wilson, (10 G.) 76 365. 1 14 Where a coroner arrests a deputy jailor, and leaves him at the jail, and no one is there, authorized to receive him, so that he goes at large, this is an escape from the sheriff, not from the coroner. Colby i>. Sampson, 5 310. 15. A prisoner who has not given bond for the jail limits, must be kept in close custody day and night, otherwise the sheriff is liable for an escape. DeGrand 0. Hunnewell, 11 160. 16. Under St. 1784, Ch. 41, if the prisoner was found in the night time out of any apart- ment belonging to the jail, although in the jail yard, that was an escape. Bartlett 0. Willis, 3 86; Pond 0. Met- calf, cited in 3 105; Clap 0. Cofran, 7 98; Freeman 0. Davis, 7 200; Bur- roughs 0. Lowder, 8 373; MeLellan 0. Dalton, IO 190; Clap 0. Cofran, IO 373. 17. But a house, appropriated by the county to the use of prisoners, was deemed part of the jail, if within the jail limits, although not con- trolled by the jailor. Jacobs 0. Tolman, 8 161, See, how- ever, Colby 0. Sampson, 5 310. 18. Where a bond for the jail limits was given under St. 1784, Ch. 41, a forcible taking of the prisoner beyond the limits, although without his consent, was an escape. Cargill 0. Taylor, 10 206. See, how- ever, Baxter 0. Taber, 4 361, explained in the case last cited. 19. For additional rulings, as to what consti- tuted an escape, under St. 1784, Ch. 41; St. 1808, Ch. 92; St. 1811, Ch. 85; St. 1811, Ch. 167; and the provisions of the B. S. respecting jail limits, see Call 0. Hagger, 8 423; Partridge 0. Emerson, 9 122; Patterson 0. Philbrook, 9 151; Trull 0. Wilson, 9 154; Spear fl.Alden, 11 444; Little 0. Hasey, 12 319; Comm. 0. Alden, 14 388; Clapp 0. Hayward, 15 276; Reed 0. Fulhrm, (2 P.) 19 158; Whitehead 0. Varnum, (14 P.) 31 523; Parley 0. Randall, (22 . P.) 39 146. II. In a cbiminaij Cause. ?0. R. S., Ch. 143, § 51, as to breaking prison, did not apply to a prisoner held in custody for trial, or for not obtaining bail, but only to a convict imprisoned under a sentence. Comm. 0. Homer, (5 Met.) 46 555. w. now, G. S., Ch. 178, §46; P. S., Ch. *30, § 50, and Comm. 0. Barker, 133 21. That provision applied to a prisoner im- prisoned under a conditional sentence, whereby lie was ordered to pay a fine, and in default thereof to be imprisoned. Comm. 0. Briggs, (5 Met.) 46 559. 22. An escape by a convicted criminal, while being conducted to prison by an officer under a mittimus, is an offence at common law. Comm. 0. Farrell, (5 A.) 87 130. 23. An officer's custody of a prisoner, whom he has arrested upon a warrant, and brought before a court for trial, does not cease until the prisoner is discharged, or a warrant of a com- mitment is made out. Comm. v. Morihan, (4 A.) 86 585. 24. An informality in a complaint or an oral sentence is no justification to one, who forcibly aids the escape of a prisoner, held upon a valid warrant. Comm. 0. Morihan, (4 A.) 86 585. 25. A defendant in a criminal cause in which exceptions arc pending, who breaks jail and does not appear in person, upon demand by the attorney-general, to receive judgment upon the exceptions, waives the right to be heard thereon by counsel. Comm. 0. Andrews, _ 97 543. See, also, Comm. 0. Dowdican's bail, 115 133. 26. An inclosed yard, used solely in connec- tion with a house of correction, is "adjoining or appurtenant thereto," within G. S., Ch. 178, §6; P. S., Ch. 220, § 7; and a prisoner escaping therefrom is punishable under § 46 of G. S.; § 50 of P. S. Comm. 0. Curley, 101 24. Escheat. 1. Under the existing statutes, there can be no escheat, except in the case of a person own- ing real property, dying intestate and without heirs. Sewall 0. Lee, 9 363. i-1 3 Aijen; also G. S., Ch. 141, § 4; P. S., Ch. 2. Held, in 1834, that the Commonwealth does not become seized of the real property of a citizen dying intestate, and without hieirs, until it recovers judgment on an inquest of office: aliter, as to an alien, for he can have no heir. Wilbur 0. Tobey, (16 P.) 33 177. 3. Also, that St. 8 H. VI, Ch. 16, and St. 18 H. VI, Ch. 6, are in force here. Wilbur 0. Tobey, (16 P.) 33 177 |As to an administrator's duty to pay over un- claimed money to the Commonwealth, see Execu- tor and Administrator, VII, (2).] Escron. [See Deed, I, (4).] Estate. [See Adverse Possession, III, (1); Deed, III, (3); Devise and Bequest, III; Heirs, etc., I; Mort- gage,!, (4); Real Property; Trust, I, (l).l 440 ESTATE FOE LIFE— ESTOPPEL, I. Estate for life. [.See Tenant fob Life.] Estate tail. [As to the words which create an estate tail, see Deed, III, (3) ; Devise and Bequest, III, (3).l 1. Entailed estates, although never in much favor at any period, have always been tolerated in this Commonwealth; but under the rule that they might at any time be barred and deter- mined by a common recovery, and, since 1792, by a simple deed. Per Shaw, 0. J., in Hall v. Thayer, (5G.) 71 523. See, also, Davis v. Hay- den, 9 514; Corbin v. Healy, (20 P.) 37 514; Buxton v Uxbridge, (10 Met.) 51 87; Wight v. Thayer, (1 G.) 67 284. 2. An estate tail in this Commonwealth, as at common law, descends to the oldest son, and to the oldest son of the oldest son. Wight v. Thayer, (1 G.) 67 284. See, also, Corbin •». Healy, (20 P.) 37 514. 3. The statute does not make a remainder in tail liable for the remainderman's debts, if he dies before the termination of the life estate; in such a case, his oldest son takes the estate tail, free from any such claim. Holland v. Cruft, (3 G.) 69 162. 4 But an estate tail, defeasible upon a con- tingency, may be taken on execution against the tenant in tail, and held until the happening of the contingency. Phillips v. Rogers, (12 Met.) 53 405. 5. The deed of a remainderman in tail passes no title, by way either of grant or estoppel. Davis v. Hayden, 9 514; Whittaker v Whittaker, 99 364; Allen v. Ashley School Trustees, 102 262. 6. A married woman, whose deed, at common law ; was void, and ineffectual to convey her own estate, could not, under the former statute, without her husband, bar an entail, and defeat his actual or possible tenancy by the curtesy in the entailed property. Whittaker v. Whittaker, 99 364. 7 But a deed by husband and wife will bar the wife's entail. Nightingale 1>. Burrell, (15 P.) 32 104. 8. And semble, that the husband's deed will bar the entail, where they are joint tenants in tail. Lithgow «. Kavenagh, 9 161. 9. A quit-claim deed of the tenant in tail is as effectual as a warranty deed to bar the entail. Allen 1). Ashley School Trustees, 102 262; Coombs v. Anderson, 138 376. 10. So is a deed not recorded at the time of his death. Terry v. Briggs, (12 Met.) 53 17. 11. A deed of an undivided interest bars the entail as to so much. Hall v. Thayer, (5 G.) 71 523. See, also, Buxton v Uxbridge, (10 Met.) 51 87, Coombs v Anderson, 138 376. _ 12 The sale of the entailed property under a license of the probate court, by the guardian of a lunatic tenant in tail, bars the entail, and the purchaser takes in fee simple. Williams B.Hichborn, 4 189; approved in Holland v. Cruft, (3 G.) 69 162 see p. 182. ' e 13. If a tenant in tail, entitled to possession conveys the land by deed to the person in actual possession, the grantor is " actually seized " within R. S., Ch. 59, § 3; G. S, Ch. 89 %i- P. S., Ch. 120, § 15; andthe deed bars the entail' Coombs v. Anderson, 138 376. 14. A tenant in tail, seized of an undivided half of the land, is seized of land within that provision. Coombs v. Anderson, 138 376. 15. Fcr other rulings under St. 1791. Ch. 60, as to barring an entail by deed, which appear to be inapplicable to the existing statute, see As to the consideration and bona fides. Wheelwright v. Wheelwright, 2 447; Soule ». Soule, 5 61; Lithgow s. Kave- nagh, 9 161; Nightingale v. Burrell, (15 P.) 32 104. As to subscribing witnesses. Cuffee v. Milk, (10 Met.) 51 366; Perry ». Kline, (12 C.) 66 118. Estoppel. I. General Rules. II. Technical Estoppel.* (1.) By adjudication. (2.) By specialty, or other written instrument. HI. Estoppel est Pais; equitable Estoppel, AND OTHEB ESTOPPELS BY ELECTION. (1.) Ordinary estoppels in pais. (2.) Equitable estoppel, and other estoppels by election. [See, also. Agency ; Attachment ; Bond; Bound aet Line; Conflict of Laws, III, (5); Constitu- tional Law, II, (6); Contract: Corporation, I, (2); Covenant, II; Deed, I, (2); Devise and Be- quest; Divorce; Evidence; Former Adjudica tion; Fraud; Guaranty; Insurance; Judg- ment; Jurisdiction; Landlord and Tenant, IV, (3); Office and Officer, I, (4i; Partition, III, (3); Partnership; Pleading; Poor; Probate Court, II; Keplevin, IIT, (1) ; Surety, I, (3); Trus- tee Process; Waiver; Widow. I. General Rules. 1. Estoppel is so called " because a man's act or acceptance stoppeth or closeth up his mouth to allege or plead the truth." It is a restraint or impediment, imposed by the policy of the law, to preclude a party from averring the truth. Gibson v. Gibson, 15 106. 2. Estoppels are not to be favored, because the truth may be excluded. Leicester v. Rehoboth, 4 180; Owen v. Bartholomew, (9 P.) 26 520. •Properly, technical estoppels are aiytt<£. 1 {*2 estoppels by record, and estoppels by specialty, » modern decisions have extended the same prajaP" to adjudications of courts not of record and °* ™* a istrates, and to various writings not speranraea." it is more convenient to consider them n« W£-2"L> even at the sacrifice of strict accuracy ot denninw ESTOPPEL, I; II, (1). 441 3 it is well settled, that estoppels, by -which a party is prevented from defending himself by telling the truth, are to be confined within strict rules. Bridgewater «. Dartmouth, 4 27d. 4. Estoppels are not to be multiplied or ex- tended by inference. Spooner «. Davis, (7 P.) 24 147. 5. An estoppel will not arise, where there is no privity of title between the parties. Manners v. Haverhill, 135 165. See, also, Braintree v. Hingham, 17 432; Worcester «. Green, (2 P.) 19 425; and , post, art- 30 6. Thus, in an action against a city for break- ing and entering the plaintiff's close, the de- fence being that it is part of a highway, the plaintiff is not estopped by deeds, under which his title is derived, put in evidence by the de- fendant, from showing the location of the way, as there is no privity of title between the plain- tiff and the defendant. Manners v Haverhill, 135 165. 7. One, who has obtained possession of prom- issory notes, and received money upon them, is estopped to say that they were obtained from the owner by fraud; and so. an action of trover would have been barred by the statute of limi- tations. Lamb v. Clark, (5 P.) 22 193. 8. A party cannot be restrained, by way of estoppel, from maintaining an action, although it be in violation of an executory contract. Gibson v. Gibson, 15 106'. 9. An infant who, not disclosing his infancy, borrows money from a person who, as he knows, believes him to be of full age, and gives a prom- issory note, and a mortgage to secure it, is not estopped from avoiding the note and mortgage, after coming of age. Baker v. Stone, 136 405. See, also, Pells v. Webquish, 129 469. 10. As to pleading an estoppel under the present and the former systems. Howard v. Mitchell, 14 241; East- • man v. Cooper, (15 P.) 32 276; Sprague 9. "Waite, (19 P.) 36 455; Gilbert v. Thompson, (9 C.) 63 348; Foye v. Patch, 132 105. [See, also, Pleading.] n. Technical Estoppel. (1.) By adjudication. [See, also, DrvoRCE, V, (1); Former Ad judica- tion, II ; Judgment; Partition, III, (3). As to the effect of foreign judgments, see Conflict of Laws, III, (o) ; Constitutional Law, II, (6). As to the cases where a judgment is or is not a bar to another action, on other grounds than an estoppel, see Judg- ment. As to the conclusiveness of official returns, see Office and Officer, I, (4).] 11. A former judgment or decree, in another suit or action, is an estoppel, where the former suit or action was between the same parties, or those in privity with them, and the same point was in issue and determined. Smith r>. Whiting, 11 445; Eastman «. Cooper, (15 P.) 32 276, Gilbert «. Thompson, (9 C.) 63 348; Burke v. Vol. 1—56 Miller, (4 G.) 70 114; Sparhawk v. Wills, (5 G.) 71 423; Shears v. Dusen- bury, (13 G.) 79 292. 12. But evidence, which may fail to prove one proposition, may be invoked to prove an- other, even if the first proposition is conclu- sively established against the party seeking to maintain it. James v. Cummings, 132 78. 13. So where a decree in equity established conclusively, that a certain contract for board and services was not made, that does not pre- vent the party from introducing the same evi- dence, used in the equity suit, in an action to recover for the board and services, to show that they were not gratuitously furnished. James d. Cummings, 132 78. 14. A verdict and judgment are conclusive, by way of estoppel, as to those facts which were necessarily involved in them, and without the existence and proof of which, such a verdict and judgment could not be rendered. Burlen v. Shannon, 99 200; overrul- ing in part Jennison ■». West Springfield, (13 G.) 79 544. See, also, Dutton v. Wood- man, (9 C.) 63 255; Sage v. McAlpin, (11 C.) 65 165. Howland ®. Mosher, (12 C.) 66 357; Harding v. Hale, (2 GJ 68 399; Norton v. Doherty, (3 G.) 69 372; Burlen v. Shannon, (3 G.) 69 387; McDowell v. Langdon, (3 G.) 69 513; Sawyer v. Woodbury, (7 G.) 73 499; Burlen v. Shannon, (14 G.) 80 433; Per- kins v. Parker, (10 A.) 92 22; Hubert v. Fera, 99 198; Lea ®. Lea, 99 493; Hooker «. Hubbard, 102 239: Gerrish «. Black, 122 76. 15. Thus a judgment against two as partners upon a copartnership note, is admissible, but not conclusive, evidence of the partnership, in a subsequent action between the same parties. Dutton ». Woodman, (9 C.) 63 255. 16. And special findings of fact by a jury, upon the trial of issues, are not conclusive, as to facts not essential to, although consistent with, their general verdict and the decree. Burlen «. Shannon, 99 200. See, also, Gilbert ». Thompson, (9 C.) 63 348; Hawks is. Truesdell, 99 557. 17. And generally, if the second action is for a different cause of action from the first, or where one was at law, and the other in equity, the former judgment is conclusive only upon those issues which were actually tried and de- termined; and if the pleadings do not show the fact, extrinsic oral evidence is admissible to ascertain what those issues were. McDowell v. Langdon, (3 G.) 69 513; White v. Chase, 128 158; Foye v. Patch, 132 105. See, also, Bridge ». Austin, 4 115; Jones «. Fales, 4 245; Liver- more v. Herschell, (3 P.) 20 33; Bridge v. Gray, (14 P.) 31 55; Eastman v. Cooper, (15 P.) 32 276; Badger v. Tit- comb, (15 P.) 32 409; Parkers. Brancker (22 P.) 39 40; Salem I. R. Co. v. Adams, (23 P.) 40 256; Buttrick v. Holden, (8 C.) 62 233; Gilbert v. Thompson, (9 C.) 63 348: Norton «. Doherty, (3 G.) 69 372; Burnett v. Smith, (4 G.) 70 50; Gage v. Holmes, (12 G.) 78 428; Norton «. Huxley, (13 G.) 79 285; 442 ESTOPPEL, II, (1). Sibley v. Hulbert, (15 G.) 81 509; Smith v. Way, (9 A.) 91 472; Newell ©.Carpenter, 118 411; Evans v. Clapp, 123 165; "West v. Piatt, 127 367; Morse v. Elms, 131 151. 18. Thus an action of trespass quart ckmsum necessarily involves only the right of possession, and a judgment therein is conclusive as to that; but if title was actually tried and passed upon, the verdict and judgment are competent evi- dence in a subsequent action; and stmble, that they are an estoppel. Arnold?). Arnold, (17 P.) 34 4; Thayer v. Carew, (13 A.) 95 84; Morse v. Mar- shall, 97 519; "White v. Chase, 128 158; Stapleton v. Dee, 132 279. 19. The same rule holds as to judgments in other personal actions, which involve only the question of possession, but may involve title. Standish v. Parker, (2 P.) 19 20; Par- ker v. Standish, (3 P.) 20 288; Kent v. Gerrish, (18 P.) 35 564; Cobb v. Arnold, (12 Met.) 53 39; Sawyer v. Woodbury, (7 G.) 73 499; Johnson e. Morse, fll A.) 93 540; Howard v. Albro, lOO 236. 20. A judgment for the tenant in formedon in the descender is a bar to a writ of entry by the same demandant; and a judgment for the tenant in a writ of entry is a bar to trespass quare clausum by the same demandant. Kent v. Kent, 2 338; Stevens v. Taft, (8G.) 74 419. 21. But a judgment against the demandant in a writ of entry, is not a bar to a subsequent writ of right, unless the title was in fact liti- ' gated. Bates v. Thompson, (17 P.) 34 14, note; Arnold v. Arnold, (17 P.) 34 4. 22. See further, as to the effect of a judg- ment in an action involving title to land, where a subsequent action is brought, Twambly ». Henley, 4 441; Comm. «. Pejepscut Prop'rs, 7 399; Porter v. Hill, 9 34; Stinson v. Sumner, 9 143; Perkins v. Pitts, 11 125; Spooner v. Davis, (7 P.) 24 147; Nash «. Cutler, (16 P.) 33 491; Piper®. Richardson, (9 Met.) 50 155; Osborne v. Atkins, (6 G.) 72 423; Sawyer v. Woodbury, (7 G.) 73 499; Law v. Ireson, (1 A.) 83 61; Perkins v. Parker, (10 A.) 92 22; Han- ham ». Sherman, 114 19; Jamaica .P. Aqueduct «. Chandler, 121 1. 23. A judgment for the demandant is con- clusive, as to his right to recover for mesne profits. Emerson v. Thompson, (2 P.) 19 473. 24. Where the former judgment or decree was between the same parties or their privies, and for the same cause of action, the parties are concluded, not only as to the issues actually tried and determined, but as to all those which might have been tried and determined therein Powers v. Chelsea Sav. Bank, 129 44; Foye v. Patch, 132 105. See, also, Homer v. Pish, (1 P.) 18 435; Bigelow i>. Winsor, (1 G.) 67 299; Sargent v. Pitzpatrick, (4 G.) 70 511. 25. Where a party has recovered damages against another for failure to fulfil a contract, the judgment estops the latter from provine performance of the contract in another actio? and vice versa, a judgment for the contract price estops the other party from proving negligence or other nonperformance. O'Connor ». Varney, («10 G.) 76 335. Merriam v. Woodcock, 104 326- Butler v. Suffolk Glass Co., 126 512.' 26. A judgment, entered by default or upon consent, is conclusive, but only as to what is necessarily involved in it. Ensign v. Bartholomew, (1 Met.) 42 274; Stapleton v. Dee, 132 279. 'See also, Thatcher «. Gammon, 12 268- Gaskill d. Dudley, (6 Met.) 47 546 ' 27. And a judgment by consent for the de- fendant, upon a plea in abatement, determines nothing. Jordan v. Siefert, 126 25. See, also Dow v. Sanborn, (3 A.) 85 181. 28. Where the record shows, that a judgment might have been rendered upon two or more different grounds, and it does not show upon which ground it was rendered, it is not conclu- sive as to either; and the fact that exceptions were brought to the full court upon one ground only, does not show that it was rendered upon that ground. Lea ». Lea, 99 493; Stapleton v. Dee, 132 279. See, also, Littlefield v. Hunt ress, 106 121. 29. For other rulings, as to the general con- clusiveness of judgments and decrees, see McNeil v. Bright, 4 282; White t. Dingley, 4 433; Loring v. Bridge, 9 124: Gridley v. Harraden, 14 496; Cook v. Darling, (18 P.) 35 393; Mills «. Gore, (20 P.) 37 28; Dutton v. Wood- man, (9 C.) 63 255; Bigelow v. Winsor, (1 G.) 67 299; Merriam v. Whittemore, (5 G.) 71 316; Black R. Sav. Bk. v. Edwards, (10 G.) 76 387; Blackinton v. Blackinton, 113 231. 30. One who was not a party, or privy to the former action, is not concluded thereby; but a privy is concluded. Downs v. Puller, (2 Met.) 43 135; Inman «. Mead, 97 310; Peterson v. Farnum, 121 476; Tarbell ». Jewett, 129 457. See, also, Copp v. McDugall, 9 1; Perkins v. Pitts, 11 125; Tyler v. Ulmer, 12- 163; Adams «. Barnes, 17 365; Shrewsbury v. Boylston, (1 P.) 18 105; Bliss v. Rice, (17 P.) 34 23; Leonard v. Bryant, (11 Met.) 52 370; Chamberlain c. Preble, (11 A.) 93 370; Haven v. Grand J. R. R, (12 A.) 94 337; Finn «. Western Railroad, 1. Symonds, 108 567; Wood «. Mann, 125 319; and ante, arts. 5, 6. 31. Where a devisee is also executor, his heirs are estopped to deny the validity of a judgment recovered against him as executor, and levied on the land devised. Thayer e. Hollis, (3 Met.) 44 369. 32. In the absence of fraud, a donee mm mortis is estopped to contest claims, proved in insolvency against the administrator. Mitchell v. Pease, (7 C.) 61 350. ESTOPPEL, II, (1). 443 33. An assignee in insolvency is likewise es- topped by a judgment against the assignor, ren- dered before the assignment. Johnson v. Thaxter, (7 G.) 73 342; Johnson v. Thaxter, (12 G.) 78 198. 34. A creditor, seeking to enforce a personal liability against officers of a corporation, is es- topped from showing that his debt was due at a later date, than the recovery of a judgment therefor by him against the corporation. Bond t>. Clark, (6 A.) 88 361. 35. The members of a school district are con- cluded by a judgment against the district, al- though recovered by default. Gaskill v. Dudley, (6 Met.) 47 546. [For other rulings as to corporations, see Corpo- bation, I, (2).] 36. Where a person was guardian of an insane person, arid also, after his death, the admin- istrator, a determination upon settlement of his account as guardian, that certain notes were his private property, is conclusive, upon the settle- ment of his accounts as administrator, upon the widow and children, who were parties to the former settlement. Cummings v. Cummings, 123 270. 37. For other rulings, where a party acts in two t apacities, see Grout v. Chamberlin, 4 611; Flint «. Bodge, (10 A.) 92 128. 38. A remainderman in tail is not estopped by a decree against the tenant for life. Holland*. Cruft, (3 G.) 69 162. See, also, Brewer *>. Hardy, (22 P.) 39 376. i 39. A judgment for the defendant, in an ac- tion by a tenant in possession, for injury to a house, by negligence, is not a bar to an action for the same injury by the owner. Bartlett v. Boston G. L. Co., 122 209. 40. A decree of divorce is conclusive upon the wife, in a writ of dower, against purchasers from the husband. Hood «. Hood, 110 463. 41. Judgment in favor of one of two joint trespassers, is not an estoppel in an action against the other. Sprague i>. Oakes, (19 P.) 36 455. 42. Judgment in favor of one liable on a joint contract, is a bar to an action against the executor of the co-contractor. Cowley «. Patch, 120 137. 43. See, further, as to joint debtors, French v. Neal, (24 P.) 41 55; Hawkes v. PhiBips, (7 G.) 73 284; Richardson i>. Wolcott,. (10 A.) 92 439. 44. Where an officer is sued for attaching goods, and the plaintiff in the attachment assumes the defence, and judgment is rendered against the officer; in an action by the officer against the plaintiff in the attachment, to recover toe amount of the judgment, the latter is not estopped from showing that the verdict was rendered on account of the officer's illegal con- duct, subsequent to the attachment, or of his proceedings under other attachments. Boynton «. Morrill, 111 4. 45. For other rulings, as to the privity be- tween an attaching creditor and the officer, see Clapp v. Thomas, (5 A.) 87 158; arlton v. Davis, (8 A.) 90 94. 46. As to the privity between an officer levy- ing an execution and the judgment creditor, see Train v. Gold, (5 P.) 22 380. 47. Generally, an indemnitor is concluded by a judgment against the indemnitee, unless there has been fraud or collusion. Valentine ». Farnsworth, (21 P.) 38 176; Lowell v. Parker, (10 Met.) 51 309; lbs Tracy «. Maloney, )5 90. [See, also, Bond, III, (1); Contbact, IV, (7); Guaranty ; Surety, I, (3).] 48. And, in general, where one is responsible over to another, by operation of law, or by contract, and he is duly notified of the pen- dency of the suit, and requested to take upon himself the defence of it, he is no longer a stranger; and the judgment, if there is no fraud or collusion, is conclusive against him. Perkins v. Pitts, 11 125; Boston v. Worthington, (10 G.) 76 496; Milford ®. Holbrook, (9 A.) 91 17; Chamberlain v. Preble, (11 A.) 93 370; Merritt v. lorse, 108 270. [See, also, Covenant, II, (3).] 49. A surety is, in general, estopped to ques- tion a judgment against his principal, in the absence of fraud or collusion. Heard «. Lodge, (20 P.) 37 53; Tracy ». Goodwin, (5 A.) 87 409; Way v. Lewis, 115 26; Cutter ». Evans, 115 27; Comm. v. Gould, 118 300; Ahrend v. Odiorne, 125 50. 50. But a surety may show that the demand, for which the judgment was recovered was barred by the statute of limitations. Dawes v. Shed, 15 6. 51. He cannot show that the principal was adjudicated a bankrupt, pending the action against him. Cutter v. Evans, 115- 27. 52. A surety for the performance of an award is not a party or privy to the judgment rendered upon the award, and may therefore show that the award was void. Laflin v. Field, (6 Met.) 47 287. [See, also, Surety, I, (3).] 53. A judgment of confiscation under the absentee laws, or a judgment for the Common- wealth upon an inquest of office, concludes all claiming under the defendant, or as subsequent grantees from the Commonwealth. McNeil v. Bright, 4 282; Cushing i>. Hacket, lO 164; Gerrish e. Bearce, 11 193; Cushing «. Hackett, 11 202; Gilbert v. Bell, 15 44; Hildreth v. Thompson, 16 191. 54. The person served with process cannot attack a judgment collaterally, by showing that he was not the party intended, his name being the same. O'Shaughnessy v. Baxter, 121 515; In re Gorman, 124 190. [See, also. Name.] 55. Nor can a party impeach a judgment collaterally, either at law or in equity, by proof of any mistake or fraud in the rendition thereof. 4M ESTOPPEL, II, (1), (2). McClees v Burt, (5 Met.) 46 198; Boston & W Railroad «. Sparhawk, (1 A.) 83 448. 56. An incomplete judgment is not con- clusive Wells v. Dench, 1 232. 57. But an amended or amendable judgment is conclusive. Smith v. Whiting, 11 445; Parkman v. Crosby, (16 P.) 33 297. 58. Alitor, if the error is such as to oust the jurisdiction, as an illegal and unauthorized alteration of the writ. Brown v. Neale, (3 A.) 85 74. 59. A judgment for the defendant on a gene- ral demurrer, for insufficiency of the declara- tion, is not a bar to a second action. Wilbur v. Gilmore, (21 P.) 38 250; Calder «. Haynes, (7 A.) 89 387. [As to the effect of a decree in equity, dismissing a bill, see Discontinuance; Equity Pleading and Practice, II, (7).] 60. A verdict without a judgment creates no estoppel. Spooner v. Davis, (7 P.) 24 147; Hawks v. Truesdell, 99 557. 61. A judgment for the defendant, rendered for want of a demand or other prerequisite to maintaining an action, does not bar a subse- quent action brought after the occurrence of the prerequisite; and semble, that this is so, if, upon the record, it may have been so rendered. Tracy v, Merrill, 103 280. See, also, New England Bk. i>. Lewis, (8 P.) 25 113; Crosby v. Baker, (6 A.) 88 295. 62. Residuary devisees and legatees are con- cluded, as between themselves, in an action for partition, by a decree upon a bill against them by the executor, determining the distributive share of each, and fixing his advancement. Torrey v. Pond, 102 355. 63 A judgment, establishing a right of free fishery, is not conclusive evidence that it is an exclusive right. Melvin v. Whiting, (7 P.) 24 79. 64. A married woman, against whom a con" ditional judgment has been rendered after her 'appearance and answer, since St. 1874, Ch. 184, § 3, upon a writ of entry to foreclose a mort- gage made by her under G S., Ch. 108, § 3; is estopped, on a writ of entry against her by the mortgagee or his grantee, from showing that her deed was void, as having been executed without her husband's assent, or a judge's ap- proval. Preison v. Bates' College, 128 464. 65. A fraudulent judgment, or a judgment rendered without jurisdiction, creates no estop- pel, and may be impeached by proof. Downs v. Fuller, (2 Met.) 43 135; Vose «. Morton, (4 C.) 58 27. [See Judgment, IV, (2); Jurisdiction, See, also' Fraud, I; V.l 66. The rule that a judgment is conclusive applies to the judgment of a justice of the peace Hendrick v. Whittemore, 105 23; Rossiter v. Peck, (3 G.) 69 538; over- ruled pro tanto. See, also, Cook v. Dar- ling, (18 P.) 35 393. 67. Or of a court of admiralty, which, where it acts in rem, is conclusive upon all interested Whitney s. Walsh, (10.) 55 29- An! drews v. Brown, (3 0.) 57 130. ' See hQwever, Hill M. Co. v. Providence, etc ' 8. 8. Co., 125 292. ' tC '' 68. Or of a court of insolvency or bank- ruptcy, which, if regular, is conclusive upon creditors. Livermore v. Swasey, 7 213; Merriam v. White, (8 G.) 74 316; Bangs v. Wat- son, (9 G.) 75 211. 6 69. Such a record cannot be contradicted even upon a bill to set it aside. Winchester v. Thayer, 129 129 70. Or of a probate court. Laughton v. Atkins, (1 P.) 18 535- Litchfield v. Cudworth, (15 P.) 32 23' Luchterhand ». Sears, 108 552. |See, further, Probate Court, II.) 71. Or of a district court. Fogel v. Dussault, 141 154. 72. It applies, also, to the final decision of a court, officer, or jury, acting in a special statu- tory proceeding, as to lay out a way, to enforce a lien against a vessel, under the mill acts, and the like, and to common law judgments brought in question in such proceedings. Loring v. Bridge, 9 124; Staple «. Spring, lO 72; Johnson v. Kittredge, 17 76; Gay e. Welles, (7 P.) 24 217; Adams v. Pearson, (7 P.) 24 341; Ray v. Fletcher, (12 C.) 66 200; Foster v. The Richard Busteed, 100 409. 73. As to the conclusiveness of an award, by commissioners under a treaty between the United States and a foreign nation, see Heard v.- Bradford, 4 326; Law *. Thorndike, (20 P.) 37 317; Lee «. Thorndike, (2 Met.) 43 313; Leonards. Nye, 125 455. [As to the conclusiveness of judgments of the United States courts, and of the courts of other states and foreign countries, see, also, Conmjot or Laws, in, (5) ; Constitutional Law, II, (6); Ivsxh MENT.] (2.) By specialty, or otker written in- strument. |As to the rule between landlord and tenant, see Landlord, etc, IV, (3). As to receipts and bills or parcels, see Evidence, VII, (Z). As to stipulations in an insurance policy, see Insurance, III, (1)1 III, (2) ; TV, (1) ; V, (6). As to the estoppel of a re- ceiptor for goods attached, see Attachment, II, (3)- As to the effect of covenants for title, see COVE- NANT, II.l 74. The obligors in an administrator's bond are estopped, by the recital, to deny the admin- istrator's appointment. Cutler v. Dickinson, (8 P.) 25 386. 75. But where the probate court had no juris- diction over the parties or the subject matter, the recital that the principal obligor has been duly appointed a trustee, does not estop the sureties. Conant v. Newton, 126 105. 76. A bond executed by the defendant, re* ing that the plaintiff owned certain land, and conditioned to pay the sum awarded by referees ESTOPPEL, II, (2). 445 for flowing it, estops the defendant from con- troverting the plaintiff's title. Wood v Willis, 110 454. 77. A grantee is estopped to deny the validity of any mortgage, to which his deed recites that the conveyance to him is subject. Johnson v. Thompson, 129 398. See, also Tuite?) Stevens, 98 305; Howard s.Chase, 104 249. 78. But a mere reference to the mortgage does not estop him. Parker v. Parker, 17 370; Weed S. M. Co. v. Emerson, 115 554. 79. Where one grants land, purporting to be bounded by a way, if he owns the land cov- ered by the alleged way, he is estopped, as against his grantee, and those claiming under him, to deny the existence of the way; and the estoppel extends to the outlet of the way, although beyond the grantee's land. Fox v. Union Sugar Refinery, 109 292, Tobey v Taunton, 119 404; Crowell *>." Beverly, 134 98. I See, also, Boundary Like, II, (1).] 80. An executor's bond to pay debts and lega- cies, is an admission of sufficient assets, which he is estopped to deny. Stebbins ». Smith, (4 P.) 21 97; Jones v. Richardson, (5 Met.) 46 247. 81. One who gives a bill of parcels of goods, and a certificate that he holds 'them on storage for the vendee, is estopped to say that he never had the goods. Chapman v. Searle, (3 P.) 20 38. 82. One executing an assignment, containing a release to the debtor, is estopped to say that he did not know it was a release. Parsons v. Gloucester Bk., (10 P.) 27 533. 83. One taking a mortgage of personalty, sub- ject to a prior mortgage, is not estopped from . showing that the prior mortgage is void. Housatonic Bk. «. Martin, (1 Met.) 42 294. 84. Although one who mortgages a water privilege, with general warranty, is estopped to deny the mortgagee's title, yet if it is agreed, in a case stated, that nothing passed by the deed, the estoppel is removed. Wheelocku.Henshaw, (19 P.) 36 341. 85. One acknowledging, in writing, the re- ceipt of money from another, and promising therein to apply it towards saving the latter harmless on a bond, is estopped to deny the re- ceipt of the money. Drury v. Pay, (14 P.) 31 326. 86. Where a party to a written instrument recites therein, as a consideration, that the other party has made a conveyance of even date therewith, he is estopped to show in avoidance of the contract, that the conveyance was not made till afterwards, although it in fact bears a subsequent date. Dyer v. Rich, (1 Met.) 42 180. See, also, Bridge «. Wellington, 1 219. 87. Where a bill of lading is executed before the goods are shipped, and afterwards goods are shipped, as and for those embraced in it, the bill of lading operates, as against the shipper and master, by way of relation and estoppel, in favor of the consignee, who receives it, and ac- cepts drafts on the faith thereof. Rowley v. Bigelow, (12 P.) 29 307 [See, also, Bill of Lading • Shipping, III.] 88. The heirs of an Indian proprietor of land, who was, by law, incapable of making a valid conveyance thereof, are not estopped by his deed. Pells v. Webquish, 129 469. 89. Where a grantor takes back a defeasance, his failure to record it creates no estoppel, of which an attaching creditor can a ail himself, against his trustees in bankiuptcy. Moors ». Albro 129 9. 90. A contract, under seal, whereby one be- comes surety ' ' for the payment of the debt due by " another, does not estop him from showing that the contract of sale .was voidable, and avoided, so that no debt was due. Hazard v. Irwin, (18 P.) 35 95 91. A deed, not delivered, raises no estoppel. Nourse v. Nourse, 116 101. 92. A covenant of warranty estops a grantor from elaiming any title to the land; and a title subsequently acquired by a grantor, with cove- nant of warranty, enures, by way of estoppel, to the grantee and his assigns. Carbrey v. Willis, (7 A.) 89 364; Knights Thayer, 125 25. [For numerous other rulings as to the effect of a covenant for title, as au estoppel, see Covenant, II.] 93. As to the effect, as an estoppel, of a mar- ried woman's covenant for title, see Fowler v. Shearer, 7 14; Colcord v. Swan, 7 291 ; Nash i>. Spoff ord, (10 Met. ) 51 192; Raymond i>. Holden, (2 C> 56 264. 94. An executor's or guardian's deed estops him from claiming title in himself, although it contains no covenants. Poor •». Robinson, 10 131; Heard v. Hall, (16 P.) 33 457. 95. A grantor, with warranty is estopped from showing want of title, but not from deny- ing the receipt of the consideration expressed. Eveleth v. Crouch, 15 307; Wilkin- son v. Scott, 17 249. 96. Nor from claiming a way by necessity. Brigham v. Smith, (4 G.) 70 297. 97. Nor from availing himself of a homestead. ' Doyle v Coburn, (6 A ) 88 71. 98. And where, in an action upon the cove- nant of warranty, the plaintiff proves his want of seisin and title, he is not estopped to rely- upon his want of seisin as a defence. Slater «. Rawson, (1 Met.) 42 450. 99. The demandant, in a real action, is not estopped by his deed to a stranger, under whom the tenant does not claim, since nothing passed. Wolcot v. Knight, 6 418. 100. But if the releasor is not seized, and the- releasee is not in possession, the deed is an es- toppel between the parties, against the releasor. Russell v. Coffin, (8 P.) 25 143. 101. A widow' bringing a bill to. redeem,, cannot take advantage, as an estoppel, of a bond 446 ESTOPPEL, II, (2); HI, (1). given by the defendant, to which she was not a party. Gibson «. Crehore, (5 P.) 22 146. 102. In an action by the assignee of a rever- sion, for rent reserved by indenture, the lessee is not estopped by his covenants, from proving an oral agreement between him and the lessor, before the demise, as to the mode of payment of the rent. Farley ». Thompson, 15 18. 103 Although an instrument is in the form of a lease, if it appears upon its face to create a right to have dower assigned, the so-called lessee is not estopped to deny the right of the so-called lessor to dower. Croade -v. Ingraham, (13 P.) 30 33. 104. A quit-claim deed does not estop either party from showing that nothing passed there- Flagg «. Mann, (14 P.) 31 467. 105. The Commonwealth is estopped from setting up the alienage of its grantee. Comm. v. Andre, (3 P.; 20 224. 106. A deed to a corporation, before its or- ganization, enures to its benefit when organized, by way of estoppel against the grantor. Dyer «. Rich, (1 Met.) 42. 180. 107. Where A conveyed to B, and B recon- veyed to A, and then A reconveyed to B, with covenants of seisin and right to convey, B is not estopped by his deed from maintaining an action on the covenants. Smith v. Strong, (14 P.) 31 128. 108. Where tenants in common license an- other to build a dam upon the common property, each is estopped from claiming damages, for injury done thereby to his land held in sev- ralty. Francis v. Boston, etc., Mill, (4 P.) 21 365. 109. If one tenant in common occupies the whole, and conveys it in fee, his grantee is estopped, in a writ of dower by the grantor's widow, to deny her husband's seisin of the whole. Wedge v. Moore, (6 C.) 60 8. 110. The grantee of an intestate, who con- veyed with intent to defraud his creditors, being himself a creditor, is not estopped to allege the fraud. Norton v. Norton, (5 C.) 59 524. 111. A deed of a tenant in tail, not sufficient to bar the entail, does not estop the heirs. Perry v. Kline, (12 C.) 66 118. 112. A quit-claim deed, reserving a right of way for a certain purpose, with a covenant of warranty against all persons claiming under the grantor, does not estop him from using the way for other purposes, where it had been pre- viously legally laid out as a private way. Flagg v. Flagg, (16 G.) 82 175. 113. A party to an indenture of partition, containing a recital that the land has been set off to a widow for her dower, is not estopped to show, that land, held by him under a lease from the widow of all land set off to her as dower, is other land. Doane v. Willcutt, (16 G.) 82 368. See, also, Merrifleld v. Parritt [11 m 65 590. ' [l u > 114. A mortgagor does not estop himself from asserting title as against any one but the mortgagee, and his privies, and an attachine officer is not such a privy. ° Cram ». Bailey, (10 G.) 76 87. 115. One is estopped to deny the title under which he entered. Morgan v. Lamed, (10 Met.) 51 50. 116. A covenant of warranty does not estop the grantor from setting up a subsequent title acnuired by disseisin. Stearns v. Hendersass, (9 C.) 63 497. See, also, Parker v. Locks & Canals (3 Met.) 44 91. 117. A mere witness to a deed is not estopped to set up his own adverse title, if the grantee had notice of it. Hale -e. Skinner, 117 474. III. Estoppel in Pais; equitable Estoppel, AND OTHER ESTOPPELS BY ElECTIOI? (1.) Ordinary estoppel in pals. (Estoppel of a receiptor of goods attached, see Attachment, II, (3)0 118. A person is estopped from profiting by the mistake of another, caused by his own mis- representation or concealment. Ladrick v. Briggs, 105 508; Tufts v. Tapley, 129 380. 119. But a person is not estopped by a repre- sentation, which was not made to induce action on the part of another. Wallis v. Truesdell, (6 P.) 23 455; Jackson 0. Pixley, (9 C.) 63 490. 120. A creditor by execution, who notifies the officer, that he claims that a prior execu- tion is void, and will hold him responsible if he sells thereunder, is not estopped from maintain- ing his action, by having purchased the goods at the sale, and received them. Brayman v. Whitcomb, 134 525. 121. So a person is not estopped by a repre- sentation made to another, where he did not know that the latter had any interest in knowing the truth. Pierce v. Andrews., (6 C.) 60 4; Zuchtmann v. Roberts, 109 53. 122. Nor can any one set up by way of estoppel against another, any act or declaration, 1 unless he has thereby been led to do or omit something, which otherwise he would not have done or omitted. Plymouth v. Wareham, 126 475. 123. One, who holds himself outas a partner, and thereby induces another to give credit to the supposed partnership, is liable as a partner, by way of estoppel. , , Rice v. Barrett, 116 312; Partridge v. Kingman, 130 476. 124. But the mere fact that goods are bought in the name of A and B, where there is an agreement between them as to the purchase and ESTOPPEL, III, (1). 447 sale, which does not make them partners, does not estop either. Partridge ». Kmgman, 131) 47b. L&ee Pabtnership, I. 125. A party is not estopped by a statement of his opinion upon a question of law, the facts being equally well known to both parties. Whitwell ». Winslow, 134: 343. 126. For additional practical applications of these principles, see Stearns v. Barrett, (1 P.) 18 443; Owen v. Bartholomew, (9 P.) 26 520; . Pay v. Valentine, (12 P.) 29 40; Piatt v. Squire, (12 Met.) 53 494; Murphy v. People's Eq. Ins. Co., (7 A.) 89 239; Plumer i>. Lord, (9 A.) 91 455; Andrews v. Lyons, (11 A.) 93 349; Turner -o. Coffin, (12 A.) 94 401; Haven «. Grand Junction, etc., Co., 109 88; Nourse v. Nourse, 116 101; Hale v. Skinner, 117 474; Hinckley v. Greany, 118 595; Jackson ». Allen, 120 64; May v. Gates, 137 389. 127. Where a boundary line has been errone- ously run between lands, under a mutual mis- take, one parly is not estopped from claiming up to his true line, because the other party has, with his knowledge, erected buildings or in- curred other expenses, by reason of the mistake, unless there has been an adverse possession sufficient to change the title. Proctor v. Putnam Machine Co. , 137 159. See, also, Tolman v. Sparhawk, (5 Met.) 46 469; Brewer «. Boston & W. Railroad, (5 Met.) 46 478: Liverpool "Wharf v. Prescott, (7 A.) 89 494. 128. Where water, from a reservoir con- structed by a city, flows a person's land, and the city proposes to divert it, so lhat it will flow the land no longer, and is induced not to do so by the request and prohibition of the owner, which remain unrevoked; the latter is estopped to maintain a petition against the city for Griffin v. Lawrence, 135 365. For analogous cases, see Fuller v. Plymouth Com'rs, (15 P.) 32 81; Seymour v. Carter, (2 Met.) 43 520; Smith ». Gould- ing, (6 C.) 60 154; Mitchell v. Bridge- water, (10 C.) 64 411. 129. And' where property is appropriated to public use, under the authority of the legisla- ture, if the owner assents to the taking, he, and those claiming under him, cannot af erwards object that due compensation was not made. Haskell v. New Bedford, 108 208. See, also, Hildreth v. Lowell, (11 G.) 77 345; Brown v. Worcester (13 G.) 79 31. 130. But an abutter on a street, who enters a sewer with his private drain, by license from the town clerk, under an agreement to make no claim for damages on account of the work, is not estopped to contest the validity of the order laying out the sewer, under which an assessment is levied on him. Sheehan v. Fitchburg, 131 523. 131. Where one acts in a public capacity, as an auctioneer, he is not, in his private capacity, estopped by his representa ions. Whitakers. Sumner, (7 P.) 24 551 132. So where one acts as appraiser, under levy of an execution upon land, this does not estop him from setting up his own title. Hurd v. Cushing, (7 P.) 24 169. 133. As to an executor having ancillary administration. Jennison v. Hapgood, (10 P.) 27 77. 134. A resolve of the Commonwealth, fixing the boundaries of lands, estops the Common- wealth. Comm. v. Pejepscut Prop'rs, lO 155. 135. A declaration by an agent, if within the scope of his authority, estops the principal as if he had made it. Gardner v. Bean, 124 347. 136. But the agent of a partnership cannot, by his declarations, estop a particular person to deny that he is a member. Plumer v. Lord, (9 A.) 91 455. 1 37. A person is not estopped because he was called as a witness in another's action. Doolittle v. Dwight, (2 Met.) 43 561. 138. Nor by his declaration in a submission to arbitration, where the fact alleged was found against his declaration. Boyd v. Davis, 7 359. 139. An estoppel by a declaration relates only to the subject of the declaration, and does not prevent the party from relying on an inde- pendent matter, or a subsequently acquired right. Tyler v. Hammond, (11 P.) 28 193; Croade v. Ingraham, (13 P.) 30 33; Webster v. Randall, (19 P.) 36 13; Day v. Green, (4 C.) 58 433; Clark v. Hale, (8 G.) 74 187; Bigelow v. Woodward, (15 G.) 81 560; Jones v. Howard, (3 A.) 85 223; Lester v. Webb, (5 A.) 87 569. 140. One assigning dower in* land by parol is estopped to say that the land was not subject to dower. Shattuck v. Gragg, (23 P.) 40 88. 141. Where the highest bidder at an auction sale of land is acting as agent for A, and by agreement between him and A and B, B takes the deed, A is estopped t>> contest B's title, in an action to recover the land. Baggot «. Fleming, (10 C.) 64 451. 142. An auctioneer, sued for the proceeds of goods sold by him, cannot set up his title in the goods. Osgood d. Nichols, (5 G.) 71 420. 143. An estoppel in pais, which binds the vendor of land, does not affect a purchaser without notice. Atlanta Mills v. Mason, 120 244. See, also, Miller v. Washburn, 117 371. 144. There was no estoppel in pais of a married woman under the former law. Lowell ®. Daniels, (2 G.) 68 161; McGregor v. Wat, (10 G.) 76 72; Plumer v. Lord, (9 A.) 91 455; Bemis v. Call, (10 A.) 92 512. 145. A man who holds out a woman as his wife cannot, as against a third person, insist that the marriage is void. Divoll » Leadbetter, (4 P.) 21 220. 448 ESTOPPEL, III, (1), (2). 146. The guardian of a lunatic is not estopped to insist that his ward was of sound mind, when he made a will. Breed v. Pratt, (18 P.) 35 115. 147. One, who has given a note to another as guardian, is not estopped to deny the legality of the guardian's appointment. Conkey ». Kingman, (24 P.) 41 115. 148. An administrator receiving money, as the property of the intestate, more than 20 years after settlement of his account, is estopped, m an action upon his bond, to deny that he received it in that capacity. White v. Swain, (3 P.) 20 365. 149. An administrator is estopped, upon settle- ment of his account, from denying the validity of a sale of land by him. Jennison i>. Hapgood, (10 P.) 27 77. 150. A person who has contracted with, or taken a conveyance from, a corporation, is es- topped to deny its existence. Worcester Med. Inst'n ». Harding, (11 C.) 65 285; Dooley v. Wolcott, (4 A.) 86 406; Traders' Ins. Co. v. Stone, (9 A.) 91 483. 151. A member of an association which has acted as a corporation, cannot allege that the first meeting was not duly called. Chester Glass Co. «. Dewey, 16 94. 152. A corporation is estopped to set up the falsity of its certificate of organization. Dooley v. Cheshire Glass Co., (15 G.) 81 494. 153. And a railroad corporation, in an action for not delivering goods, cannot set up the in- validity of its lease of a railroad, over which the goods were to be carried. McCluer v. Manchester & L. Railroad, (13 G.) 79 124. 154. A member of a school district is estopped to deny the power of a committee of the dis- trict, to accept a deed for a school house. Case v, Benedict, (9 C.) 63 540. [For other rulings, as to estoppels by or in favor of a corporation, or its officers or members, see Corpo- ration, I, (2).] 155. A town is estopped to deny its liability to maintain a way, on the ground that it volun- tarily deviated from the true location of the way. Williams v. Cummington, (18 P.) 35 312. 156. Upon the trial of a writ of entry by a person, claiming title under a tax collector's deed of property, assessed to the "heirs" of a person named, the defence to which is title by adverse possession, the tenant is not estopped by his having bidden at the tax sale, or attempted to purchase the interest of one of the heirs. Reed*. Crapo, 127 39. 157. One in possession of a mill on a canal, claiming title under a deed made by order of the court, binding him to repair 1he canal, can- not excuse himself for liability for not repair- ing, on the ground that the order was defective, and therefore the deed passed no title. Woburn v. Henshaw, 101 193. 158. Qu., astothe circumstances, under which mere silence, and standing by and suffering one to purchase or expend money, will estop a man from setting up his own title. Parker v. Barker, (2 Met.) 43 423 159. He will not be estopped where his title is equally known to both. Gray «. Bartlett, (20 P.) 37 186- Par ker ». Barker, (2 Met.) 43 423. ' 160. He will not be estopped to set up his discharge in bankruptcy to an action to recover upon his note, taken in lieu of a mortgage upon real property. Cambridge Sav. Inst'n v. Littlefield (6 C.) 60 210. ,l 161. He will not be estopped where he is not present at a sale, although he knew that the purchaser was buying in the belief that the sale was authorized. Bragg «. Boston & W. Eailroad, (9 A.) 91 54. 162. But where the obligor in a bond knew, at the time of an assignment thereof, with his consent, that it had been obtained from him by fraud, and gave the assignee no notice, it was held, that as against the assignee he was estopped to set up the fraud. Holbrook v. Burt, (22 P.) 39 546. 163. If the treasurer of a savings bank as- signs a mortgage of the bank, exhibiting to the assignee a copy of the vote of the trustees, au- thorizing him so to do, certified by him as secretary, and also represents that the mortgage ,is a first mortgage, the bank is estopped, as against the assignee, to deny the vote, but not to show that it holds a prior mortgage. Comm. 0. Reading Sav. Bk., 137 431. (2.) Equitable estoppel, and other e«- toppels by election. [See, also, Waiver. As to the estoppel of a widow to claim dower or a distributive share, by accepting a provision in lieu thereof, see Widow, III..] 164. The doctrine of equitable estoppels, has now also its place in courts of law; the cases to which it applies most frequently arise under wills. Fitts v. Cook, (5 C.) 59 596. 165. One, who accepts and holds a beneficial interest under a will, cannot set up any right or claim of his own which will defeat, or in any way prevent, the full effect and operation of every part of the will. Fitts v. Cook, (5 C.) 59 596; Watson 0. Watson, 128 152. See, also, Ward v. Ward, (15 P.) 32 526: Hyde s. Bald- win, (17 P.) 34 303; Hapgood t. Houghton, (22 P.) 39 480; Smith n. Smith, (14G.) 80 532; Brown v. Brown, 108 386. 166. But if this is done in ignorance of mate- rial facts, the election is not binding, where no other person's rights have been affected thereby, and the rule is the same if this is done in mis- apprehension of the person's legal rights. Watson v. Watson, 128 152. see, also, Reed v. Dickerman, (12 "•) £V 146; Delay*. Vinal, (1 Met.) 42 57. Or where the person mak'ng the election had not sufficient mental capacity, to understand tne ESTOPPEL, III, (2). 449 effect and value of the provisions, and of the rights surrendered. Brown ». Brown, 108 386. 167. And where one has received a legacy in ignorance of this rule, and immediately upon beta" informed of it, and before any other per- son's 3 rights have been affected, returns the legacy to the executor, and notifies him that he elects not to take it, the rult, does not apply. "Watson v. Watson, 128 152. 168. One, who proves a will accepts the posi- tion of executor, and continues to occupy the real property devise 1 to him by the will, is, and all persons claiming under him are, estopped from setting up any claim or right which would defeat the will. Smith i). "Wells, 134 11. 169. For a case, where it was held that the occupation of devised land did not, under the circumstances, create an equitable estoppel, see Fitts v. Cook, (5 C.) 59 596. 170. So one, who has taken advantage of a statute, cannot object to the constitutionality thereof. Pitkin v. Springfield, 112 509. [For other authorities upon the same subject, ee ante, art. 129: and Constitutional law, arts. 152, 173.] 171. But proving his demand, and even accepting a dividend, do not estop a creditor from objecting to the constitutionality of an insolvent law. Kimberly v. Ely, (6 P.) 23 440. 172. Taking toll by a turnpike corporation estops the corporation to deny its accptance pf the road, and its liability for repairs. Comm. v. "Worcester Turnpike, (3 P.) 20 327. 173. Semite, that accepting the proceeds of a tax collector's sale estops one to deny the validity of the sale. Reed v. Crapo, 127 39. 174. So receiving compensation for land levied upon, from a city which takes it for public uses, estops the party to allege that the land was not subject to levy, or that he took nothing by the levy. Phillips v. Rogers, (12 Met.) 53 405. 175. The use of a fishery, with the consent of one claiming the right, estops the person so using it to deny the other's right. Russell v. Russell, (15 G.) 81 159. 176. The acceptance from the same grantor of a deed of upland with general warranty, and a deed of the flats with special warranty, does not estop the grantee to claim title to the flats. Porter v. Sullivan, (7 G.) 73 441. 177. The acceptance of a bill of sale of chat- tels, reciting that it is subject to a mortgage, does not estop the purchaser to claim, as against the mortgagee, chattels, added to the stock since the mortgage, although the mortgage pur- ports to include such chattels. Chesley v. Josselyn, (7 G.) 73 489. ,.178. A cestui qui trust does not waive his right to reclaim stock, fraudulently pledged by tne trustee, by silently allowing the pledgee to pay an assessment upon it. Shaw v. Spencer, 100 382. Vol. 1—57 179. Qu., whether the waiver of irregularities in proceedings to collect a tax, by all the owners of land, conveyed by a tax collector's deed, cre- ates an estoppel upon the tenant in possession. Reed v. Crapo, 133 201. 180. Where a person has two inconsistent remedies, such as the affirmance and disaffirm- ance of a voidable contract, any decisive act, indicating his election to pursue one remedy, estops him thereafter from pursuing the other; and the institution of an action is such a deci- sive act. Butler v. Hildreth, (5 Met.) 46 49; Connihan ®. Thompson, 111 270. See, also, Kimball ». Cunningham, 4 502; Sears v. Carrier, (4 A.) 86 339; Hooker v. Hubbard, 97 175; Gardner «. Lane, 98 517; Washburn ». Great W. Ins. Co., 114 175; Ormsby v. Dearborn, 116 386; Seavey v. Potter, 121 297. 181. But an action at law for damages for a breach, and a suit in equity for i-pecific per- formance, are both in affirmance, and ti:e com- mencement of one does not conclude the plain- tiff, although he may be compelled to elect between them. Connihan v. Thompson, 111 270. 182. The same rule of estoppel by election applies, where one seeks to maintain a defence, inconsistent with an action formerly brought by him, or a defence interposed by him in a former action. Stevens v. Miller, (13 G.) 79 283; Henderson v. Stamford, 105 504; Lil- ley 1). Adams, 108 50. 183. But a tenant in a writ of entry, unsuc- cessfully claiming a fee under the general issue, is not estopped to claim an easement. Tyler v. Hammond, (11 P.; 28 193; Locks & Canals v. Nashua, etc., Railroad, 104 1. 184. Nor is he estopped to "set up a title by disseisin, by having relied upon a deed which did not convey the land. Melvin v. Locks & Canals, (5 Met.) 46 15. 185. A defendant in a criminal cause, who takes an appeal, and thereby obtains a suspen- sion of sentence, cannot afterwards object that he did not enter into a recognizance, without which he was not entitled to such suspension. Comm. v. Sullivan, (11 G.) 77 203. 186. A party who sets up a conveyance as a mortgage, upon the first trial of a cause, which is subsequently decided to be absolute, is not estopped to -rely upon it as absolute upon the second trial. Miller «. Baker, (1 Met.) 42 27. 187. A sworn bill in equity, alleging that the plaintiff and his wife were jointly possessed of certain property, which was afterwards discon- tinued, does not estop the plaintiff, in an action for conversion of the same property, against the same defendant. Beatty e. Randall, (5 A.) 87 441. 188. A tender, after suit brought, and accept- ance pro tanto, do not estop the defendant from relying upon a defence upon the merits. Mclntyre v. Fuller, (2 A.) 84 345. [See Tender. 1 450 ESTOPPEL, III, (2) EVIDENCE. 189. An assignee in insolvency is not es- topped, by his having prosecuted an inconsistent action as an individual, especially where the estoppel is as strong against the defendant as against him. Dudley v. Coburn, (9 C.) 63 314. 190. And one, sued as surety upon a guar- dian's bond, is not precluded by a decree made by him as judge of probate, allowing the guar- dian's general account, in which the guardian charged himself with the proceeds of the ward's real property, from showing, in defence, that the property was sold under a license to sell it, and an order to put the proceeds at interest. Lyman «. Conkey, (1 Met.) 42 317. 191 Where the defendant pleads the non- joinder of others in abatement, and the plaintiff amends, and summons in those named in the plea, and afterwards discontinues against them, he is not estopped, upon the trial of the plea in abatement, from denying that they joined in the promise. "Wilson v. Nevers, (20 P.) 37 20. Estray. [See, also, Fence ; Impounding; Lost Property.] 1. The finder of an estray may keep it for the owner, and is not liable in trover, unless he uses the estray, or refuses to deliver it on de- mand. Nelson v. Merriam, (4 P.) 21 249; Wilson v. McLaughlin, 107 587. 2. A servant, who has driven a stray horse from the highway into his master's pasture, to prevent it from straying on cultivated land, is not liable for conversion, by turning it again into the highway, by his master's order. Wilson v. McLaughlin, 107 587. . 3. An action under G. S., Ch. 79, § 10; P. S., Ch, 95, § 10, must be brought within a year after the owner's right of action accrues by the finder's neglect. Wilson v. McLaughlin, 107 587. 4. DriviDg an estray from one's land into the highway is not a conversion. Stevens v. Curtis, (18 P.) 35 227; Bonney ». Smith, 121 155. 5. An omission to deliver a stray cow, on de- mand, is not a conversion, if she has been mixed with the defendant's drove of cattle, and he does not know the fact; although he afterwards discovers it, and keeps her with his drove, and returns her a few months afterwards, when he passes again that way. Wellington v. Wentworth, (8 Met.) 49 548. 6. Semble, that by working an estray, the finder becomes a trespasser ah initio. Per Sewall, J., in Gibbs v. Chase, 10 125. Eviction. -t-See : Covenant, II, (3) ; Landlord and Tenant, Evidence. I. General Rules as to Competency. (1.) Hearsay. (2.) Certainty; relevancy. (3.) Other like acts; similar circumstances as to other things or persons. (4.) Opinions; experts. (5.) Res inter alios acta: (6.) Declarations, entries, and former testi- mony, of a deceased person. (7.) Ocular evidence. (8 ) Scientific and other printed hooks. (9.) As affected by public policy. (10.) Rebuttal of adverse testimony; fortify- ing party's testimony. II. Judicial Notice. III. Burden of Proof; prima Facie Evi- dence. (1.) General principles as to both. (2.) Burden of proof upon particular ques- tions. (3.) Prima facie evidence upon particular questions. IV. Presumptions. (1.) Real or personal property. (2.) Negotiable paper. (3.) Records, and other written instruments, (4.) Contract, express or implied. (5.) Death; survivorship. (6.) Continuance of fact. (7.) Intent. (8.) Lawfulness; honesty. (9.) Receipt of letters, etc., sent (10.) Miscellaneous questions. V. Best and secondary Evidence. (1.) General principles. (2.) Attesting witness. (3.) Miscellaneous rulings as to sufficiency of primary evidence. (4.) Secondary evidence. (5.) Notice to produce, and effect thereof. VI. Admissions; Declarations; Confes- sions. (1.) General principles. (2.) Admissions from acts, omissions, silence, or failure to produce evidence. (3.) Former owner of property. (4.) Person jointly interested; co-plaintiff or co-defendant. (5.) Attorney; counsel; agent. (6.) Confession in a criminal cause. VII. Oral Testimony to affect a Writing. (1.) General principles. (2.) Instruments and issues within or with- out the rule. EVIDENCE, I, (1). 451 (8.) Patent and latent ambiguities; sur- rounding circumstances; parties' acts. (4.) Date; consideration; invalidity; subse- quent modification; collateral matter VIII. Documentary Evidence. (1.) Ancient deeds and other documents. (2.) Records and other proceedings of courts and magistrates. (3.) Other public records. (4.) Book accounts and entries; memoranda. (5.) Miscellaneous rulings. IX. Evidence as to particular Subjects. (1.) Character; reputation. (2.) Handwriting. (3.) Identity. (4.) Intent; motive (5.) Time. (6.) Value. (See, also, generally, Deposition; Exception; Tbial, II; Witness. Andfor additional rulings re- lating to evidence upon particular questions, see the titles of the different actions, suits, and proceed- ings, at law and in equity; of the different crimes and other offences; of the different causes and sub- jects of action; and of the different transactions upon which such questions arise.] I. General Rules as to Competencv CI.) Hearsay. ISee, also, porf, I, (4) ; I, (5) ; I, (6) ; VI. As to ques- tions of reputation, character, etc., see post, IX, (1).] 1. The general rule that hearsay evidence is inadmissible, is subject to the exceptions that reputation, tradition, and the declarations of persons deceased, are admissible as to questions of boundary, which are public, or of a public nature, matters of general interest, and questions of pedigree. flail*. Mayo, 97 416; Longs. Colton, 116 414. 2. But such exceptions do not extend to questions of private boundary, in which no con- siderable number of persons have a legal interest. Hall v. Mayo, 97 416; Adams v. Swansea, 116 591. See, also, Green *. Chelsea, (24 P.) 41 80; Long v. Col- ton, 116 414. 3. Reputation, or other hearsay evidence, is not admissible to prove the place of a person's birth; whether it be the declarations of the person himself, or reputation. Braintree v. Hingham, (1 P.) 18 245; Wilmington v. Burlington, (4 P.) 21 174. 4. Or that notice of a sale, under a power in a mortgage, was given. Bnggs v. Briggs, 135 306. 5. Or that a signature is that of a corporation. Goddard «. Pratt, (16 P.) 33 412. 6. Or that a person is or is not a partner. Goddard v, Pratt, (16 P.) 33 412. 7. Or that certain unoccupied lands are the property of the town. Green v. Chelsea, (24 P.) 41 71. 8. Or that a person charged with negligence IS Oil T.'(." l( 'XS Baldwin v. "Western R. R., (4 G.) 70 333. See, also, Chapman v. Coffin, (14 G.) 80 454. 9. Or that a person is illegitimate. Haddock i>. Boston & M. Railroad, (3 A.) 85 298. 10. Or that an engagement of marriage ex- isted, between the plaintiff in an action for a breach of promise, and a third person. Healey v. O'Sullivan, (6 A.) 88 114. 11. Or that a table of military quotas, pre- pared by the witness as adjutant-general of the Commonwealth, was accepted or rejected by the war department. Wayland v. Ware, 104 46 12. Or that a horse is gentle. Brooks v. Acton, 117 204. 12a. An agent may prove the substance of an oral message communicated through him by his principal. Brown v. Leach, 107 364. 13. One sent to a foreign port to take charge of a vessel in distress, cannot show the prices of labor, etc., there, which he ascertained merely by inquiry. Lewis 1>. Eagle Ins. Co., (10 G.) 76 508. 14. A witness who was not present when money was paid cannot be asked as to his per- sonal knowledge of the amount Townsend Bk. «. Whitney, (3 A.) 85 454. 15. On an indictment for murder, where the motive is supposed to be to obtain certain money of the deceased, the defendant may show that no money was missing; but the ad- ministrator cann t show what he has learned by inquiry, as to sums received and paid out by the deceased. Comm. v. Sturtivant, 117 122. 16. Declarations of a widow, in answer to the administrator, that she left her husband by reason of his adultery, are inadmissible Smith v. Slack, 125 474. 17. Upon the trial of an indictment, where the question is whether the defendant was in the Commonwealth at a particular time, the testimony of a sergeant of police, that on a cer- tain day, a police officer reported to him that he had seen the defendant in the street that night, is incompetent. Comm. v. Ricker, 131 581. 18. But where a witness testifies, that on a certain day he saw the plaintifL driving his team, he may testify that on that evening, some one told him of the accident in question, as this only tends to render the time certain. McDonald «. Savoy, 110 49. 19. Where the question is one of private in- terest only, declarations of deceased persons in possession of land, while in the act of pointing out the boundaries on the land itself, are ad- missible in this Commonwealth, if nothing ap- pears to show an intent to deceive or misrepre- 452 EVIDENCE, I, (1), (2). gent, but only strictly under the circumstances " Bartlett e. Emerson, (7 G.) 73 174; Long «. Colton, 116 414. See, also, Daggett i). Shaw, (5 Met.) 46 223; "Ware ». Brookhouse, (7 G.) 73 454; Flagg v. Mason, (8 G.) 74 556; Whitney v. Ba- con, (9 G.) 75 206; Adams v. Swansea, 116 591. Contra, Van Deusen v. Tur ner, (12 P.) 29 532, overruled. 20. And this, whether the declaration was for or against his interest. Daggett v. Shaw, (5 Met.) 46 223; Wood?). Foster, (8 A.) 90 24. 21. And declarations of an occupant, while in possession, that he was only tenant of an- other, are admissible in favor of the latter against a third person, after the occupant's death, but not before. Marcy «. Stone, (8 C.) 62 4; Currier v. Gale, (14 G.) 80 504. 22. Declarations of a deceased owner, while standing on the land, in his own favor, are not competent evidence in favor of one claiming under him, to prove a right of way over a third person's land. Ware v. Brookhouse, (7 G.) 73 454. [For rulings as to the competency of declarations of former owners of land, deceased or living, against their own interests, upon questions of title, see post. VI, (3).l 23. Upon a question of a pauper's settlement where the position of a house, long since re- moved, is in question, the declarations of de- ceased aged persons, are admissible to show its situation. Abington v. North Bridgewater, (23 P.) 40. 170. 24. And where the question is, whether a de- ceased person had a settlement, by being seized of an estate of freehold, his declaration that he had no deed, but a writing for a deed, is inad- missible to rebut a presumption arising from possession. West Cambridge v. Lexington, (2 P.) 19 536. 25 A third person's declarations are also evidence where they are in issue, or materially affect the issue, such as where the question is whether he gave notice, what conditions he affixed to certain acts, or the like, in which case they partake of the* nature of verbal acts. Rice v. Bancroft, (11 P.) 28 469; Comm. v. Robinson, (1 G.) 67 555; Heywood v. Reed, (4 G.) 70 574; O'Neil v Glover, (5 G.) 71 144; Porter v. Merrill, 124 534. [For additional authorities and other exceptions, seep st, VI.] 26. Unless they can be brought within one of the recognized exceptions, the declarations of one, not a party to the action, are mere hearsay, nd therefore inadmissible. Comm. i>. Chabbock, 1 144; Brain- tree 1!. Hingham, (IP.) 18 245; Rob- bins o. Otis, (3 P.) 20 4; Lvman v. Gipson, (18 P.) 35 422; Orrok-y" Comm. Ins. Co., (21 P.) 38- 456; Lawrence «. Kimball, (1 Met.) 42 524; Comm. v. Ricketeon, (5 Met.) 46 412; Kingsleyu. N. E Ins. Co., (8 C.) 62- 393; Kimball v. Currier, (5 G.) 71 458; Woodbury v. Obear, (7 G.) 73 467; Collins *>. Stephen son, (8 G.) 74 438; Clark s. Houghton (12 G.) 78 38; Lincoln «. Lincoln' (12 G.) 78 45; Boynton e. Laighton' (1 A.) 83 509; Comm. «. Goddard' (2 A.) 84 M8; Ryan v. Merriam, (4 A \ 86 77; Flint v. Flint, (6 A.) 88 34- Reed v. Scituate, (7 A.) 89 141; Comm' v. Grose, 99 423; Filley v. Ansell' 102 67. S * (2.) Certainty; relevancy. 27. A general description by a witness of the' chattels, for the conversion of which the action is brought, is sufficiently certain, if it enables the jury to estimate their value. Hall v. Burgess, (5 G.) 71 12. 28. To warrant a conviction upon circum- stantial evidence, all the facts, necessary to the' conclusion sought to be established, must be. proved beyond a reasonable doubt, and so as to produce a reasonable and moral certainty that. the accused committed the offence charged. Comm. v. Webster, (5 C.) 59 295. 29. A witness called to prove declarations: must give the language, or the substance thereof; he cannot state what others understood. Hale v. Silloway, (1 A.) 83 21. 30. Nor can a witness state what he under stood to be the effect of an oral agreement Ives ». Hamlin, (5 C.) 59 534. 31. Initials of a former owner of the soil, cut into a rock on the river's bank, are, in the ab- sence of any other proof, too uncertain to go- to the jury as proof that he claimed a fishery. Melvin v. Whiting, (13 P.) 30 184. 32. The testimony of a bookkeeper, who ex- amined the plaintiff's books, at a time not shown, to be after the indorsement of the note in suit, to the effect that he could not say that the note in question was enumerated among those sent,, is inadmissible. Noxon v. De Wolf, (10 G.) 76 343. 33. Where, however, the fact in controversy,, but not the precise date, was proved by a wit- ness, the date being material, but the witness stated that he then saw a pap- r dated before the time in question, and the other party had it. in his power to show the precise date, the evi- dence was admitted. Stevens v. Bruce, (21 P.) 38 193. 34 Upon a question of the time during which the plaintiff supplied the defendant with milk, where two dates are proved as the beginning and end of the period, and an uncertain tune between them is shown to have existed, the evi- dence of another dealer, to show the period during which he supplied the defendant, is competent: Sias ». Munroe, 134 153. 35. A letter addressed to a witness cannot be put in evidence, to show the time when he re- ceived it. ... Comm. v. Burns, (7 A.) 89 540. 36. For other rulings, upon questions of the- competency of evidence to fix a particular time, Comm. v. Irwin, 107 401; McDonald EVIDENCE, I, (2). 453 v Savoy, 110 49; Robinson v. Litch- field, 112 28; Comm. v. Bush, 112 280; Comm. v. Snow, 116 47; Comm. «. Whitman, 121 361. 37. Upon the question "whether fish were frozen, evidence that other fish, which stood in the same place and during the same time, did not freeze, is competent. Hodgkins v. Chappell, 128 197. 38. Upon the question whether a loom worked successfully, where the evidence is conflicting as to the fact itself, evidence that another loom, substantially like the one in question, worked successfully, is competent, and the jury must pass upon the question of the similarity of the two. Brierly s. Davol Mills, 128 291. 39. Evidence that a boy came into the coun- try upon the return of a ship from a whaling voyage, that he spoke a foreign language, but not English, etc., is competent upon the ques- tion of his foreign birth. Dennis v. Brewster, (7 G.) 73 351. 40. Upon the question of a misdescription in a deed, through fraud of the grantee, sernble, that acts of the grantor, in making a plan of the land, etc., may be admitted. Walker «. Swasey, (4 A.) 86 527. 41. Evidence of the value of a piece of land to the grantor as part of his farm, is inad- missible upon the question whether it is in- cluded in a deed. Davis v. Sherman, (7 G.) 73 291. 42. Upon the trial of an issue as to a woman's sanity, a witness's remark that the people had much sympathy with her, is incompetent. Townsend v. Pepperell, 99 40. 43. Upon an issue whether goods were of a certain quality, the purchaser's offer to rescind the sale is incompetent. Lothrop v. Otis, (7 A.) 89 435. _ 44. Upon the trial of an indictment, if there is direct evidence of guilt, it cannot be con- trolled by proof that the defendant's original purpose in going to the place was harmless. Comm. «. Blair, 123 242. See, also, Comm. v. Bowers, 121 45. 45. Upon the trial of an indictment for keep- ing liquor on a certain day, with intent to sell the same, evidence of the condition of the room as to appointments and fixtures, at 8 a. m. on the next day, is competent. Comm. «. Powers, 123 244. 46. Upon the question, whether a murder was committed in a certain place, the wooded or open state of the country may be competent. Comm. t>. Costley, 118 1. ^F' t ^ p ?v tlle tr!a ' of two defendants, iointly indicted, the counsel of one, called as a witness xLtv? °i el i! Cannot be compelled to answer Sn^Trt ^ ^ a T ran g ed wi *h the prosecuting officer, that hischent shall not be sentenced, at mat is immaterial. Comm. *>. Thompson, 108 461. an 4 L^ffi a " a ? ti0 2j 0rcausln S an arrest "Pen show ft" f? davit ' the P laintifE ™t from another. ^ UP ° n a n0te P urchas ed Underwood v. Brown, 106 298. 49. In an action of trespass by the assignee of a lease, evidence is inadmissible that the assignor purchased the lease with money of his ward. Martin v. Tobin, 123 85. 50. As to proof of a venereal disease. Morrissey «. Ingham, 111 63. 51. Where the question is, whether the weather was cold enough to freeze ink, evidence that it was not cold enough to freeze apples is irrelevant. Ingledew v. Northern Railroad, (7 G.) 73 86. 52. Upon an indictment for overdriving a horse by a youth, evidence is inadmissible that the owner had been requested by the defend- ant's parent not to allow him "to have any horses. Comm. v. Wood, 111 408. 53. Evidence of conveyances by former own- ers of land, with covenants against incum- brances, does not tend to disprove a present right of wav ovtr it. Blake v. Everett, (1 A.) 83 248. 54. Evidence of the pecuniary circumstances of A, before the time in question, is irrelevant upon the issue, whether B then became his partner. Dutton v. Woodman, (9 C.) 63 255. . 55. Evidence, that one has been living at a rate of expenditure, greater than his apparent means, is admissible, in connection with other testimony, upon the question whether he has dishonestly appropriated his employer's money. Hackett v. King, (8 A.) 90 144. For a case, in many respects similar, see Boston & W. Railroad «. Dana, (1 G.) 67 83. 56. Reputed wealth of the maker of a note, and his dealings with others, are irrelevant upon the question of payment of the note. Hilton ii. Scarborough, (5 G.) 7 1 422. See, dlso, Veazie ». Hosrner, (11 G.) 7 7 396. 57. Evidence of reputed wealth of a person is admissible, upon the question whether a pre- ferred creditor had reasonable cause to believe him insolvent. Lee v. Kilburn, (3 G.) 69 594; Bart- lett v. Decreet, (4 G.) 70 111; Heywood v. Reed, (4 G.) 70 574; Whitcher *>. Shattuck; (3 A.) 85 119; Metcalf v. Munson, (10 A.) 92 491. 58. Evidence of the plaintiff's rank and con- dition in life is admissible in slander; and so is evidence of the defendant's wealth. Larned v. Buffinton, 3 546; Bodwell v. Osgood, (3 P.) 20 379; Sliute v. Bar- rett, (7 P.) 24 82; Oakes ». Barrett, (7 P.) 24 82. [See Libel and Slander, VIII.] 59. A purchaser's actual insolvency is rele- vant upon the question, whether a sale was fraudulent against creditors. Odiorne «. Bacon, (6 C.) 60 185. See, also, Comm. v. Jeffries, (7 A.) 89 548; Haskins n. Warren, 115 514. 60. For other cases, in which .it was ruled that evidence of a person's actual pecuniary circumstances was admissible, see 454 EVIDENCE, I, (2), (3). Waugh v. Riley, (8 Met.) 49 290; Fisher v. Plimpton, 97 441; Foot 0. Hunkins, 98 523: Atwood 0. Scott, 99 177; Woodward v. Leavitt, 107 453, Higgins v Andrew, 121 293; Cos- tello 0. Crowell, 133 352. [As to the question whether a person's pecuniary circumstances can be proved by reputation or opin- ion, seepos*, art. 88.1 61. For other cases, in which it was ruled that evidence of a person's actual pecuniary circumstances, or reputation for wealth or pov- erty, was inadmissible, see Orcutt 0. Ranney, (10 C.) 64 183; Agawam Bk. 0. Sears, (4 G.) 70 95; Comm. 0. Stebbins, (8 G.) 74 492; Al- len e. Leonard, (16 G.) 82 202; Clark v. Fletcher, (1 A.) 83 53; Sweetser v. Bates, 117 466; Jones v. Smith, 121 15; Costello 0. Crowell, 133 352. (3.) Other like acts; similar circum- stances as to other things and persons, 62. In this Commonwealth, in an action of slander, or an action or criminal prosecution for libel, the uttering or publishing of similar , words, or words of a similar import, or declar- ations on the same subject, or referring to the publication complained of, are competent upon the question of malice; but evidence of a dis- tinct and different calumny is inadmissible. Comm. 0. Damon, 136 441. See, also, Bodwell 0. Swan, (3 P.) 20 376; Watson «. Moore, (2 C.) 56 133; Comm. 0. Harmon, (2 G.) 68 289; Baldwin v. Soule, (6G.) 72 331; Markham 0. Rus- sell, (12 A.) 94 573; Bobbins 0. Fletcher, 101 115; Clark 0. Brown, 116 504. [See, also, Libel and Slander, III; VIII.] 63. If the other publications are criminally libellous, that will not prevent their admission, if otherwise admissible. Thayer v. Thayer, lOl 111; Comm. ». Nichols, 114 285; Comm. 0. Coe, 115 481; Comm. ». Bennett, 118 443; Comm. 0. Damon, 136 441. 64. In actions in which fraud is involved, evidence of fraudulent transactions with other persons is not admissible upon the question of intent, unless there is proof of some connection between those and the fraud charged, from which the jury may find a purpose common to all. Jordan 0. Osgood, 109 457; Stock- well 0. Silloway, 113 384; Haskins 0. Warren, 115 514; Horner 0. Weiner, 124 92; Comm. 0. Jackson, 132 16; Comm. 0. Damon, 136 441. See, also, Foster 0. Hall, (12 P.) 29 89; Rowley 0. Bigelow, (12 P.) 29 307; Wiggin 0. Day, (9G.) 75 97; Williams 0. Robbins, (15 G.) 81 590; Lynde 0. McGregor, (13 A.) 95 172; Richardson 0. Brackett, 101 497; Edmunds 0. Hill, 133 445. 65. So of previous transactions with the same person. Skinner 0. Flint, 105 528; Chelsea Bk. 0. Goodsell, 107 149. LSee, also, Fraud, IV.] 66. And m an action for deceit in the sale of property, other representations respecting the same subject matter, are admissible, to enable the jury to judge more accurately as to the meaning of the words used. Pedrick 0. Porter, (5 A.) 87 324, 67. In an action wherein the plaintiff seeks ta rescind a sale, as induced by fraudulent rep- resentations, evidence of other subsequent pur- chases, from third persons, is incompetent, if unaccompanied with evidence of fraud therein Kline Baker, 106 61. [As to proof of other acts of adultery, and f amill. arities, see Adultery.] 68. On the trial of an indictment for malt ciously burning a building, the government may show, on the question of intent, that the de- fendant previously set fire to the same building, or an adjoining shed. Comm. 0. McCarthy, 119 354; Comm. 0. Bradford, .126 42. [See Arson.] 69. On the trial of an indictment for false pretences, by passing the bill of an insolvent bank, evidence is competent that the defendant had in possession and passed other similar bills. Comm. 0. Stone, (4 Met.) 45 43. 70. For other instances, where proof was ad- mitted of other acts or circumstances of the same general character, or apparently connected with the act in question, see Indictment fo: kidnapping. Comm. 0. Turner, (3 Met.) 44 19. Other sales upon credit. Tibbetts 0. Sumner, (19 P.) 36 166. Other acts to prove agent's authority. Connor 0. Parks, (10 C.) 64 265; Bucknam 0. Chaplin, (1 A.) 83 70. Other purchases, on a question of fraud. Skinner 0. Flint, 105 528. Other sales of intoxicating liquors, upon an issue whether a note was given for such. Hubbell 0. Flint, (13 G.) 79 277. Or upon a complaint for an unlawful sale. Comm. 0. Sinclair, 138 493. Other orders, upon a question whether a par- ticular order was accepted. Lannan 0. Smith, (7 G.) 73 150. Other notes taken, upon a question whether indorsee had notice of fraud in note. Chelsea Bk. 0. Goodsell, 107 149. So upon a question whether indorsement is genuine. Huntsman 0. Nichols, 116 521. Other fraudulent preferences, upon question whether insolvent's discharge is void. Pettee 0. Coggeshall, (5 G.) 71 51. Upon a question of damage to goods, damage to other goods packed by same person m same Bradford 0. Boylston Ins. Co., (11 Pj) 28 162. See, also, Darling «. Stanwood, (14 A.) 96 504. Upon a question of fraud, where it was alleged that boxes were so piled, etc., as to pre- vent examination, proof that other persons could and did examine them, etc. ft Salem I. R. Co. 0. Adams, (23 P.) *» 256. EVIDENCE, I, (3). 455 Upon a question of due diligence, party's own acts in like cases. Holly v. Boston Gas L. Co., (8 G.) 74 123. Upon a question whether machine defective, that other like machines, made and sold by the same person, were similarly defective. Waters' Pat. H. Co. v. Smith, 120 444. But such evidence is not admissible in de- ' Vale ii. Butler, 111 55. Upon a question whether goods corresponded to representations, the cjuality, etc., of other goods from the same general lot. Pikei- Fay, 101 134. Upon a question whether an accident was caused by the fault of the horse, the horse's habits, etc., at other times. Todds. Rowley, (8 A.) 90 51; Maggi o. Cutts, 123 535. Upon a question whether certain beer was intoxicating, a chemical analysis of other beer of the same kind, kept by the defendant. Comm. v. Goodman, 97 117. In an action for injury occasioned by falling upon the ice on a sidewalk, where the question was as to the defendant's reasonable efforts to remove it, the mode of removal in other parts of the same sidewalk. Sheas. Lowell, (8 A.) 90 136. In an action on a policy of insurance upon goods, another policy between the same parties on the building. Fogg ii. Middlesex Ins. Co., (10 C.) 64 337. Upon the issue whether the defendant, a broker, sold a forged note as his own, or as agent for another, with notice, that he repre- sented the note as his to others than the plaintiff. Mason v. Massa, 122 477. Upon an indictment for having in possession burglarious implements, that other such imple- ments were also found in the defendant's pos- session. Comm. v. Day, 138 186. 71. Evidence admissible to prove a crime, is not rendered inadmissible by the fact that it tends also to prove another crime. Comm.®. Call, (21 P.) 38 515; Comm. ». Tuckerman, (10 G.) 76 173; Comm. ii. Choate, 105 451; Comm. «. Scott, 123 222. 72. On an indictment for murder committed during a riot, evidence of other riotous acts at a different piace, and several hours earlier, is inadmissible, unless it is first shown that all were parts of one continuous transaction. Comm. e. Campbell, (7 A.) 89 541. 73. Upon an issue of negligence, evidence of the defendant's other similar negligent acts is not admissible. Maguire v. Middlesex R. R., 115 239. See, also, Robinson v. Fitchburg, etc., R. R. (7 G.) 73 92; Whitney «. Gross, 140 232. 74. Upon an issue whether a highway is de- fective, evidence is not admissible that other persons did or did not pass safely. Collins v. Dorchester, (6 C.) 60 396; Aldrich v. Pelham, (1 G.) 67 510; Kid- der d. Dunstable, (11 G.) 77 342; Schoonmaker 11. Wilbraham, 110 134; Merrill v. Bradford, 110 505. 75. In an action against a railroad superin- tendent, for expelling the plaintiff from the station for violation of a regulation, the defend- ant cannot show previous violations of other regulations. Hall v. Power, (12 Met.) 53 482. 76. In an action for breach of a contract to furnish a home, etc. , to a person ' ' when he is sober and well behaved," evidence in defence is not admissible, that he was drunk and violent, at different times before the breach alleged. Fay v. Guynon, 131 31. 77. Upon an issue of forgery, evidence is in- admissible that the plaintiff has committed similar forgeries, or that he has the skill, etc., to enable him to forge the note in suit. Costelo v. Crowell, 139 588. 78. For other instances, where proof was ex- cluded of other acts of the same general char- acter, see Usage of trader as to credit, upon question whether agent had authority to give credit. Bell v. Smith, 99 617. Other acts of removal of fence, before divid- ing line settled, in action for malicious removal thereof after such settlement. Tillotson e. Warner, (3 G.) 69 574. In defence of a charge of negligence, that no accident happened under the same circumstances on other occasions. Tenney «. Tuttle, (I A.) 83 185, Gahagan ■». Boston, etc., R. R., (1 A.) 83 187; Lewis v. Smith, 107 334; Lane v. Boston, etc., Railroad, 112 455. 79. In an action against a town to recover for injuries, caused by ploughing snow from a rail- road track on the highway, where the evidence as to the height of the ridge is conflicting, evi- dence of the depth of the snow on that day, in adjoining woods, is too remote to be admitted. Brooks «. Acton, 117 204. 80. For other instances, where proof of cir- cumstances alleged to be similar was excluded, for want of proof of sufficient connection, see: On a complaint for flowing the plaintiff's meadow, evidence in defence that other meadows had suffered the same injury from natural causes, where there was no proof of similarity to the plaintiff's meadow. Standish v. Washburn, (21 P.) 38 237. On the question of the value of an ice privi- lege, the value of such a privilege on ponds seven or eight miles distant. Ham ». Salem, 100 350. On an indictment for murder, experiments with a dynamometer as to the force of a blow, where the conditions were not shown to be the same. Comm. v. Piper, 120 185. On a complaint under the mill act, evidence as to the effect of withholding, etc., water on other land, where it was not done in the same season. Gile v. Stevens, (13 G.) 79 146. 456 EVIDENCE, I, (3), (4). On a question of value of trees prostrated by a storm, the price of trees prostrated on neigh- boring land, where it was not shown that both lots were in the same condition. Lawton v. Chase, 108 238. On a question of damages for removing stones from a river, the effect of removing stones in another place, without proof of simi- lar condition. Hawks v. Charlemont, 1 10 110. On a question of damages to land from a noxious manufactory, that other lands in the vicinity have, or have not, been injured. Lincoln v. Taunton Copper M. Co., (9 A.) 91 181. See, also, Bradford «. Boylston Ins. Co., (11 P.) 28 162; Standish v. Washburn, (21 P.) 38 237; Emerson v. Lowell Gas Co., (3 A.) 85 410. See, also, on a question of negligence by the fall of a boat. Simmons v. New Bedford, etc., Co., lOO 34. 81. On a question whether certain onions were well cured, proof that other onions be- longing to the same lot, were found to be worth- less, is inadmissible, without preliminary evi- dence that they have been subjected to the same conditions; and the judge, not the jury, is to pass upon the sufficiency of such prelimi- nary proof; and no exception lies to his decision thereupon. Lake 1>. Clark, 97 346. 82 On a question whether certain cotton was wet with rain on a voyage, evidence is in- admissible that other cotton was thus wet, in other like voyages, at the same time. Darling v. Stanwood, (14 A.) 96 504. (4.) Opinions; experts. [As to the question of genuineness of a signature, etc., and expert testimony thereupon, see post, IX, (2); as to questions of value, aeepost, IX, (6).] 83 Any witness may give an opinion on a question of identity as applied to persons, things, or handwriting; may give his judg- ment in regard to the size, color, or weight of objects; may estimate time and distances; and may state his opinion in regard to sounds, their character, from what they proceed, and the direction from which they come. Comm. v. Sturtivant, 117 122. 84. So as to a question of kindly treatment, Baldwin v. Parker, 99 79. 85. So as to the general excellence of a foundation. Bardwell ». Conway Ins. Co., 122 90. 86. So as to the rate of expenditure of a person, whose circumstances are in question. Griffin v. Brown,- (2 P.) 19 304. 87. But not as to whether his business was profitable. Bartlett «. Decreet, (4 G.) 70 111. 88. And testimony as to a man's reputation for wealth or poverty is inadmissible. Sheldon «. Boot, (16 P.) 33 567 . Comm. v. Stebbins, (8 G.) 74. 490! Trowbridge t>. "Wheeler, (1 A.) 83 162- Blanchard v. Mann, (1 A.) 83 433, 89. Any one who knows the fact, mav testify as to the dangerous condition of a road. Lund v. Tyngsborough, (9 C.) 63 36. 90. Or as to whether "horn chains" are fragile. Swett v. Shumway, 102 365. 91. Or as to whether certain barrels are called "whiskey barrels." Comm. v. Carr, 111 423. 92. Or as to the person who kept a shop for the sale of intoxicating liquors. , Comm. v. Intoxicating Liquors, 122 36. 93. Or as to the time which elapsed between two events. Bayley 0. Eastern K. B., 125 62. 94. Or whether a particular person is careful, attentive, and temperate. Gahagan v. Boston & L. R. R., (1 A.) 83 187. 95. Or whether a certain liquor is gin. Comm. n, Timothy, (8 G.) 74 480. 96. Or as to who is referred to in a libel, as " the doctor," " the colonel," etc. Goodrich v. Davis, (11 Met.) 52 473; Miller v. Butler, (6 C.) 60 71, Leonard s. Allen, (11 C.) 65 241. But not what is meant by the expression, "a bad girl." Snell v. Snow, (13 Met.) 54 278. 97. Any person may testify as to the corres- pondence between boots and foot prints. Comm. e. Pope, 103 440; Comm. «. Sturtivant, 117 122. 98. And may give an opinion as to whether certain hairs are human hairs. Comm. v. Dorsey, 103 412; Comm. v. Sturtivant, 11*7 122. 99. Or may state what he understood by cer- tain expressions, gestures, and intonations, and to whom they applied. Leonard i>. Allen, (11 C.) 65 241; Comm. v. Sturtivant, 117 122. 100. Or may give an opinion as to a person's age, upon the question whether he is a minor. Comm. 0. O'Brien, 134 198. 101. Prom certain appearances, difficult to describe in words, a witness may state his con- clusions in relation to indications of disease or health, and the condition or qualities of animals or persons, as that a horse's foot appears to be diseased. Comm. •». Sturtivant, 117 122. 102. Or that a horse appeared to be frightened, and not sulky, at the time of an accident, or as to the qualities and appearance of a horse. Comm. v. Sturtivant, 117 122. 103. Or that a person is ill or disabled, or has a fever, or is destitute and in need of rehef. Ashland 0. Marlborough, 99 47; bar- ker v. Boston, etc., S. B.'Co., 109 4»»; Comm. v. Sturtivant, 117 122. EVIDENCE, I, (4). 457 104 Not, however, as to a particular disease. ' Ashland e. Marlborough, 99 47. 105 Or that a person acted as if she felt very sad, or otherwise as to her apparent state of feelmg Culver «. Dwight, (6 G.) 72 444; Comm v. Piper, 120 185. 106. Or whether he noticed any change in the intelligence, or understanding, or want of cohe- rence in the remarks, of another. Barkers. Comins, HO 477; Nash v. Hunt, 116 237; Comm. v. Sturtivant, 117 122; Comm. v. O'Brien, 134 198; Comm. ®. Brayman, 136 438. 107. Or whether a person was intoxicated at a particular time. Gomm. i). Sturtivant, 117 122. 108. Any one who has observed the relations and conduct of two persons to each other, may testify whether, in his opinion, one was attached to the other. Comm. «. Sturtivant, 117 122. 109. SemhU, that any one may testify whether there was hard pan in an excavation. Comm. «. Sturtivant, 117 122. 110. Semble, that any one who has had sum" cient opportunity to form a judgment, may five an opinion, in a case of collision, as to the irection in which the two vessels struck each other. Comm. «. Sturtivant, 117 122. 111. As to various other matters, which are within the range of common knowledge, and as to which a witness may give an opinion, with- out being an expert, see. Comm. v. Sturtivant, 117 122. 112. For instances, where witnesses have not been allowed to give their opinions, although the question at issue was not of a scientific character, because the jury were alone to judge, see Rider v. Ocean Ins. Co., (20 P.) 37 259; Bigelow «. Collamore, (5 C.) 59 226; Comm. «. Cooley, (6 G.) 72 350; Eobinson «. Pitchburg, etc., Railroad, (7 G.) 73 92; Shaw v. Boston, etc., Rail- road, (8 G.) 74 45; Lee v. "Wheeler, (11 G) 77 236; Sprague ». Worcester, (13 G) 79 193; Hutchinson v. Methucn, (1 A.) 83 33; Nowell v. Wright, (3 A.) 85 166; Emerson «. Lowell Gas Co., (3 A.) 85 410; Bliss v. Wilbraham, (8 A.) 90 564, Simmons v. New Bedford, etc., Co., 97 361; Lynch v. Smith, 104 52; Woodward v. Leavitt, 107 453; Comm. v. Mooney, 110 99; Tuttle v. Lawrence, 119 276. 113. In an action for breach of warranty and false representations on the sale of an engine, an expert cannot be asked, as to what horse power was meant, where an engine was adver- tised as of a certain horse power; and the defend- ant is not entitled to a ruling, that it is for the jury to decide, whether the advertisement did not refer to manufacturers' rating. Harrington v. Smith, 138 92. LAs to questions of value, see pott, IX, (6).] 114. Upon the trial of an indictment for mur- aer, a witness, not an expert, but familiar with wood, who has examined with a lens, a blood Vol. 1—58 stain when it was fresh, and who testifies to its appearance then, and that it was not in the same condition at the trial, may testify that its ap- pearance, when he examined it, indicated the direction from which it came. Comm. v. Sturtivant, 117 122. 115. And a witness may testify that certain shoes appeared as if they had recently been washed. Comm. v. Sturtivant, 117 122. 116. Whether a witness, not an expert, is qualified to express an opinion as a conclusion of fact, is to be decided by tue judge presiding at a trial; and his finding cannot be reviewed, unless, upon a report of the evidence, it is shown to be without foundation, or based upon an erroneous application of legal principles. Nunes v. Perry, 113 274; Comm. ». Sturtivant, 117 122. See, also, Swan v. Middlesex, lOl 173; Comm. v. Coe, 115 481; and Exception, II, (3). 117. And the same rule holds upon the ques- tion, whether a witness, who is called as an ex- pert, has the requisite qualifications and knowl- edge to enable, him to testify. O'Connor v. Hallinan, 103 547; Hawks i>. Charlemont, llO 110; Per- kins v. Stickney, 132 217; Costello v. Crowell, 133 352. 118. Where, upon the question whether the signature to a note was forged, the plaintiff puts in evidence two letters, with proof, not by ex- perts, that they are in the maker's handwriting, and the defendant calls experts who testify the other way, it is in the discretion of the court to allow the plaintiff to call an expert to testify that, in his opinion, the signature is genuine. Costello v. Crowell, 133 352. ISee, also, as to handwriting, post, IX, (2).] 119. The question whether a witness has the requisite knowledge to enable him to give an opinion, is largely within the discretion of an officer presiding at an assessment for land dam- ages. Tucker v. Mass. Cent. Railroad, 118 546. 120 Upon the general question of actual sanity, or mental condition and capacity, only experts, and subscribing witnesses to a will, can, in this Commonwealth, give an opinion; and only persons of scientific training upon the sub- ject, and physicians, are regarded as experts. Other witnesses can only testify as to the ap- pearance and acts of the person. Comm. i). Brayman, 136 438. See, also, Phelps v. Hartwell, 1 71; Poole*. Richardson, 3 330; Buckminster v. Perry, 4 593; Hathorn v. King, 8 371; Dickinson «.Barber, 9 225; Need- ham ii. Ide, (5 P.) 22 510; Comm « Wilson] (1 G.) 67 337; Comm. v. Fair- banks, (2 A.) 84 511; Townsend v. Pep- perell, 99 40; Shailer «. Bumstead, 99 112; Barker «. Comins, HO 477; May v. Bradlee, 127 414; Cowles v. Merchants, 140 377; and Lunatic, III. 121. As to how far physicians, who have not made the subject of insanity a special study, are competent as experts, see Baxters. Abbott, (7 G.) 73 71; Comm. 458 EVIDENCE, I, (4). 121. Rich, (14 G.) 80 335; Hastings v. Ri- der, 99 622; Lewis r>. Mason, 109 169; Comm. v. Brayman, 136 438. 122. An expert, in mental diseases, is not in- competent to testify as to the sanity or insanity of a testator, because he has already testified that he was ignorant of the effect of a certain disease, and the fact that the testator had that disease, was assumed, in the hypothetical ques- tion put to him. Nash®. Hunt, 116 237. 123. As to the competency and proper form of hypothetical questions to an expert in insan- ity, see Comm. v. Rogers, (7 Met.) 48 500; Woodbury v. Obear, (7 G) 73 467; Comm. v. Rich, (14 G.) 80 335; Hast- ings v. Rider, 99 622; Nash v. Hunt, 116 237; May «. Bradlee, 127 414. 124. In an action against a carrier for the loss of a pearl ring, it was held, that an exception would not lie to the admission cf the plaintiff, to point out a pearl corresponding in size, etc., to the one lost, and to the testimony of an ex- pert as to the value of the pearl so pointed out. Berney v. Dinsmore, 141 42. 125. An exception does not lie to the exclu- sion of the testimony of a witness, offered as an expert, if it does not appear from the bill of exceptions, but that it was excluded because the witness was not properly qualified. Hawks v. Charlemont, HO 110. 126. A cillege graduate, who has studied and taught chemistry, may testify as an expert, as to the safety of a camphene lamp which he has never before seen, although he has never ex- perimented with lamps, or used camphene. Bicrce 1>. Stocking, (11 G.) 77 174. 127. In an action to recover for an injury to the plaintiff's health, caused by the escape of illuminating gas, a physician of several years' practice, but who has had no experience of the effects of breathing gas, cannot testify relating thereto as an expert, although he has attended others, who, it is alleged, were made ill by breathing gas from the same leak. Emerson «. Lowell Gas L. Co., (6 A.) 88 146. 128. Whether a child is a full grown child at its birth, is not a question for an expert, but may be testified to by any physician of ordinary experience, who attended at the birth. Young v. Makepeace, 103 50. 129. For further rulings, as to the qualificar tions of witnesses offered as experts, and the subjects of their examinations, see Bookkeeper. Shattuck v. Train, 116 296. Mechanic competent as to injury to house. Moulton v. McOwen, 103 587. Insurance officer and real estate appraiser competent, as to diminution of rent and increase of rate of insurance, by exposure to fire. Webber v. Eastern R. R., (2 Met.) 43 147. Experienced person competent as to whether "patent fuel" is comprised within the word " coal." Howard v. Great Western Ins. Co., 109 384. Surveyor of highways incompetent as to safety and convenience of a road. Lincoln v. Barre, (5 C.) 59 590. Treasurer of a mill corporation, who has bought coal for years, incompetent as to quality of coal. Perkins v. Stickney, 132 217. Expert cannot testify as to whether a cattle guard is necessary at a particular place. Amstein v. Gardner, 134 4. Carpenter, as to cost of building in a town near those wherein he has worked, competent. Hills v. Home Ins. Co., 129 345. Expert in manufacture of beer incompetent, on question of amount of alcohol, from taste alone. Comm. v. Collier, 134 203. Experienced person competent as to weight of cattle. Carpenter v. Wait, (11 C.) 65 257. Dealer in sugar competent as to adulteration by sand. Gossler v. Eagle Sugar Refinery, 103 331. Pilot, as to depth of water. Phillips v. Cornell, 133 546. Scientific man incompetent to show that an invention was known, before it was patented. McMahon v. Tyng, (14 A.) • 96 167. Surveyor competent" to show that stones and marks on trees are monuments of 'boundaries. Davis i>. Mason, (4 P.) 21 156; Knox «. Clark, 123 216. Shipwright competent to show whether decay could have been discovered on removal of "thick streak." Cook v. Castner, (9 C.) 63 266. Expert in insurance competent as to increase of risk, through want of facilities for moving water casks. Daniels ■». Hudson R. Ins. Co., (12 C.) 66 416. On issue of ordinary care, question as to other persons' practice, incompe:ent. Eastham v. Riedell, 125 585. So on like issue, question as to whether in- jury could have happened without carelessness. Buxton v. Somerset R. Works, 121 446. Question competent as to usual construction of flues, where the agreement is to put in flues according to the local custom. Gorham v. Gross, 125 232. Packer of hams competent as to proper pack- ing. Kershaw v. Wright, 115 361. Medical expert competent as to injury, al- though called in three months afterwards. Rowell v. Lowell, (11 6.) 77 420. Medical expert competent as to whether patient injured by previous improper treatment. Barber «. Merriam, (11 A.) 93 322. Medical expert, on trial for murder, compe- tent as to whether all the injuries to deceaseds head could have resulted from same Mow. Comm. v. Piper, 120 185. Foreman on excavation, competent as to the number of yards a man will dig in a day, etc. Walker «. Curtis, 116 98. EVIDENCE, I, (4). 459 Horse dealer competent as to " cribber." Miller v. Smith, 112 470. Machinist competent as to what derailed a Seaver v. Boston, etc., R. K., (14 G.) 80 466. Expert competent as to proper mode and effect of examining tobacco, and whether it is usage of trade to buy old tobacco by sample. S Atwater ». Clancy, 107 369. Expert may show that machine constructed according to model would not work, although called by party denying model's correctness Hayward «. Draper, (3 A.) 85 551. Expert competent as to whether two pieces are parts of same stick. Comm. v. Choate, 105 451. Also, to show time necessary to dig in frozen Emerson v. Lowell G. L. Co., (3 A.) 85 410. Also, to show what the condition of a water- pipe, after an accident, indicates as to the original construction, and how affected by ex- pansion and contraction. Hand v. Brookline, 126 324. One, acquainted with navigation, cannot be asked whether goods stowed on deck would have been broken or lost, if stowed under deck. New England Glass Co. v. Lovell, (7 C.) 61 319. Practical manufacturer not competent as to whether incorrect schedule could have been so made by accident merely. Stone «. Denny, (4 Met.) 45 151. Under the mill acts, experts competent as to damage done by flowing. Hosmer «. "Warner, (15 G.) 81 46. Gardener competent as to damage to plants, etc., by smoke, heat.'and gas, from brick kiln. Vandine «. Burpee, (13 Met.) 54= 288. Qualified witness competent as to damage done by blasting rocks. Brown v. Providence, etc., Railroad, (5 G.) 71 35. Expert not competent to show that risk of fire is greater in occupied than unoccupied . buildings. Mulry v. Mohawk V. Ins. Co., (5 G.) 71 541; Luce v. -Dorchester Ins. Co., 105 297. So as to any other matter pertaining to risk, which is matter of common knowledge of men. Lyman v. State Ins. Co., (14 A.) 96 329. So upon question whether there was danger that a fire would spread to plaintiff's land from ; defendant's. Higgins n. Dewey, 107 494. So as to whether the master of a ship " would probably have known it," if certain parts of the riggingneeded replacing. Perkins e. Augusta Ins. etc., Co., (10 G.) 76 312. So as to where is the highest part of a hill. Hovey v. Sawyer, (5 A.) 87 554, 130. A hypothetical question to an expert, which does not accurately state the conditions, is inadmissible. lewett v. Brooks, 134 505. 131. There is no established form for ques- , tions to experts. General rules on the subject. Hunt ii. Lowell Gas L. Co., (8 A.) 90 169. 132. An expert, who has heard so much of the testimony as is material to the question, may be interrogated thereupon. Hand v. Brookline, ' 126 324. 133. An expert may give the grounds and reasons of his opinion, with the details of the experiments made by him; and if the latter were under substantially the same conditions as those of the matter in issue, they may go to the jury. Comm. v. Webster, (5 C.) 59 295; Keith «. Lothrop, (10 C.) 64 453; Dick- enson v. Fitchburg, (13 G.) 79 546; Lincoln v. Taunton Copper Co., (9 A.) 91 181; Sexton v. North Bridgewater, 116 200; Demerritt «. Randall, 116 331; Hawkins v. Fall River, 119 94; Comm. n. Piper, 120 185; "Williams s. Taunton, 125 34; Eidt v. Cutter, 127 522. 134. He may state general facts, which are. the result of scientific knowledge or general skill. Emerson v. Lowell Gas L. Co., (6 A.) 88 146. 135. As to cross-examination of an expert as to the details, etc., of his experiments. Ingledew v. Northern R. R., (7 G.) 73 86; Williams v. Taunton, 125 34. See, also, Haverhill L. & F. Assoc'n v. Cronin, (4 A.) 86 141. 136. "Where an expert, called by the plaintiff, testifies that he has obtained copper from grasses on the plaintiff's land, the defendant may show that copper exists in, and has been obtained from, grasses not exposed to the same influences. Lincoln ■». Taunton Copper Co., qualify- ing Ingledew v. N. R. R., (7 G.) 73 86. 137. A medical examiner, otherwise qualified as an expert, is not rendered incompetent to testify as to the results of an autopsy, by failure to follow the directions of the statute. Comm. v. Taylor, 132 261. 138. "Where experts on the part of the defend- ant testify, and one of them, on cross-examina- tion, admits that there is a dispute among experts on the question, the plaintiff may go to the jury without calling experts. White v. Fitchburg Railroad, 136 321. 139. An expert cannot testify as to bow much leather it would take to make a certain number of pairs of shoes, for the purpose of showing conversion of the leather, where the previous witnesses, who have described leather, only " supposed " it was the leather in question. Rich ii. Jones, (9 C.) 63 329. 140. A witness, whether an expert or not, cannot be asked a question involving a matter of law, which arises in the action, such as which of two deeds conveys the greater right, whether there was an acceptance of goods, whether a person had authority, or the like. Bennett v. Clemence, (6 A.) 88 10; Brewer v. Housatonic Railroad, 107 277; Short M. Coal Co. v. Hardy, 114 197; 460 EVIDENCE, I, (4), (5). Providence Tool Co. n V S Man. Co., 120 35; Green v. Boston.& L, Railroad, 128 321. 141. But as to matters not directly involved, a lawyer may give his opinion Thus, where the value of the services of the plaintiff's attorney is in question, the action having been settled without a trial, the. defendant's counsel in the action may give, his opinion, that the plaintift had no case. Aldrich v. Brown, 103 527. 143. And where a witness, asked to describe the usage as to inspecting provisions, answered "the responsibility of putting up the provisions right rests upon the packer," the answer was admitted, as a mere mode of stating that tho broker relies upon the packer. Kershaw v. "Wright, 115 361. [See. also. Questions of Law, etc. 1 (5.) Res inter alios acta, 143. A judgment is not evidence in favor of either party thereto, except against the adverse party, or one who claims under him, or one who, being interested, has authorized some one to represent him, who appeared in his behalf; and that question is for the jury. "Weld v. Nichols, (17 P.) 34 538; Comm'l Bk. v. Eddy, (7 Met.) 48 181; Goodnow v. Smith, 97 69j Globe Works d. "Wright, 106 207. 144. A record of conviction, or of trial and acquittal, in a criminal cause, is not evidence upon an indictment of another, or in a civil ac- tion to which the defendant is a party. Comm. v. Blisha, (3 G.) 69 460; Comm. *. Waters, (11 G.) 77 81; Par- ker ■». Kenyon, 112 264. 145. Thus, in an action upon a policy of a life insurance, the company cannot maintain its defence that the assured died in violation of the law, by the record of the trial and acquittal of the man who killed him. Cluff ». Mutual B. Ins. Co., 99 317. 146. A judgment on an account against the executrix of a former owner, through whom the demandant claims, is immaterial in a writ of entry. Osgood v. Coates, (1 A.) 83 77. 147. A judgment for the plaintiff against one of several defendants, and an officer, is not evi- dence in an action to recover for the use of horses and carts, although the former judgment was for attaching the same horses and carts as another's property. Wing s. Bishop, (3 A.) 85 456. [See, further, on this question. Estoppel, II, (1) ; Forme it Adjudication ; Judgment.] 148. A line established, under a judgment be- tween owners of adjoining flats, is admissible in favor of one of them against another owner in the same cove, to identify, in connection with other evidence, the monuments by which the latter's lines have been drawn; but for that purpose only. Boston ». Richardson, (13 A.) 95 146. 149. A tax valuation is inadmissible for any purpose, in an action between others, or be- tween the person taxed and another. Brown ». Providence, etc.,. Bailroad (5 G.) 71 35; Burghardt «. Van Deus'en (4 A.) 86 374; Flint «. Flint, (6 A) 88 34; Kenerson » Henry, 101 15lj' Comm. v. Heffron, 102 148; Raynes «. Bennett, 114 424; Randidee « Lv man, 124 361. ' ' 150. A receipt in full in favor of A, is not evidence of payment of a demand against A and B jointly. Walker v. Leighton, 11 140. 151. A release by A of all demands i u _ B, reciting a settlement between A, of the one part, and B and of the other, is not evidence to prove a joint interest between B and C. Farnum v. Farnum, (13 G.) 79 508, 152. An officer's return and the appraisal of property, on a writ of replevin, are not compe- tent evidence of the value of the property in an action on the replevin bond. Kafer v. Harlow, (5 A.) 87 348; Leighton v. Brown, 98 515; Wright «, Quirk, 105 44. 153. Nor is the certificate of appraisement evidenc.! in an action by a third person againss an attaching officer. Adams ». Wheeler, 97 67. 154. For other illustrations of the doctrine, that res inter alios is not evidence, see: On a question of partnership between A and B, letters written by B to C, not communicated to A. Jones v. Stevens, (5 Met.) 46 373. On a question whether credit was given to the defendant, or a third person, directions by the plaintiff to his servant to refuse credit to the third person. Welch v. Merrill, (16 G.) 76 91. See, also Holmes e. Hunt, 122 505. On a question between an administrator and the plaintiff, transactions between the deceased and a third person. Carter ». Fitz, 124 269. In an action for personal injuries, by th( caving in of earth, a»contract for the work be tween the defendant and another. Gilhooley «. Sanborn, 128 485. Sei a similar ruling in Bigelow v. Dawson, (I C.) 60 97. Deeds between strangers, to show how mucl was paid upon a mortgage. Sheldon «. Grady, 116 136. On a question of land damages, for openinj a city street, the damages paid by the city ti the owners of adjoining property. FalLRiver P. Works v. Fall River, 1 1 J 428; Donovan v. Springfield, 125 371 On a complaint for flowing, damages paid t another land owner by the respondent or hi grantor. _ , Tyler v. Mather, (9 G.) 75 177; Eel liher «. Miller, 97 71. On a question whether the defendant hai waived a tender, by paying interest, evidenc that he had paid other debts. Howe v. Whitehead. 130 268. EVIDENCE, I, (5), (6). 461 On a question whether credit was given to a third person, his offer to pay the plaintiff therefor. Larry «. Sherburne, (2 A.) 84 34. In an action for breach of a contract as to procuring and selling shares, that the defendant procured other shares from third persons, at the same price that he paid to the plaintiffs. Cutkr v. Demmon, 111 474. Upon a question of .payment, that the defend- ant was advised by counsel that the defence could not be sustained, in an action by a former holder of the note. ■ Woodward v. Leavitt, 107 453. Copies of bills of sale of goods, and way bills by a carrier for their transportation, against a third person claiming title. Kline o. Baker, 106 61. Third persons' receipts, on trial of an indict- ment. Comm. «. Cannon, 97 337. The patent office records, to show the in- validity of a patent, in an action by the patentee upon a note given for an assignment of the McMahon «. Tyng, (14 A.) 96 167. In partition, deeds to third persons from the common source of title, conveying other lands. Burghardt ™ t0 ™ New England Ins. Co., (5 P.) H b , 9 i " est Bovlston „. Sterling, (17 P.) oT t , 4 12 , 6; Butts "• Tiffany, (21 P.) 38 ap; Stanley *>. Gaylord, (10 Met.) 51 82; Boardman v. Kibbee, (10 C.) 64 545; Moulton v. Parker, (1 G.) 67 123; Cen- tol Bridge v. Butler, (2 G.) 68 130- Soynton ». Laighton, (1 A.) 83 509; Hildreth v. Martin, (3 A.) 85 371; Globe Works v. Wright, 106 207; Beach v. Bemis, 107 498; Fitzgerald v. Pendergast, 114 368. [See, also, ante, L, (3), and post, VI.I (6.) Declarations, entries, and former testimony, of a deceased person. 156. Evidence of what was sworn to by a de- ceased witness, in a former action between the same parties or their privies, is admissible, if the point in issue is the same; but not if it is different. Melvin v. Whiting, (7 P.) 24 79;, Comm. «. Kichards, (18 P.) 35 434;. Warren v. Nichols, (6 Met) 47 261; Yale v. Comstock, 112 267. 157. The whole of his testimony, and, as far as possible, the precise words must be given. Comm. ».Richards, (18 P.) 35 434; Warren v. Nichols, (6 Met.) 47 261; Woods v. Keyes, (14 A.) 96 236. 158. The language must be given, substan- tially and in all' material particulars, as the wit- ness used it, but not necessarily with absolute; verbal identity; and the whole, or all the mate- rial part, must bo given. Costigan «. Lunt, 127 354. See, also, Corev i>. James, (15 G.) 81 543;. Woods v. Keyes, (14 A.) 96 236; Yale Comstock, 112 267. 159. Memoranda and entries, made by a de- ceased person, in the course of his duty or busi- ness to do the acts, and make the memoranda,, are competent for the jury, on the question whether the acts were done. Welsh v. Barrett, 15 380; Shove s. Wiley, (18 P.) 35 558; Washington Bk. ». Prescott, (20 P.) 37 339; Porter v. Judson, (1G.) 67 175; Jones d. Howard, (3 A.) 85 223. 160. They may be proved by proving his handwriting. Union Bk. v. Knapp, (3 P.) 20 96. 161. Thus, contemporaneous entries of bap- tism by a deceased priest, in the church record of baptisms, will prove the date of the baptism. Kennedy i>. Doyle, (10 A.) 92 161; Whitcher «. McLaughlin, 1 15 167. 162. So memoranda of a surveyor, and minutes to explain them, made in the scope of his employment by one party with the consent of the other, are admissible after his death. Walker v. Curtis, 1 16 98. 163. And a record of the condition of a patient in a hospital, produced by the superin tendent, purporting to be contemporaneously made by deceased attending physicians, which it was their duty to make, is admissible forty years after, as the foundation of the testimony of an expert, on the question of the patient's sanity at the time. Townsehd v. Pepperell, 99 40. 164. Entries by a deceased person, relating to his own business, are not evidence in favor of his administrator, if there is no evidence to connect the other party therewith. 462 EVIDENCE, I, (6), (7). Watts v. Howard, (7 Met.) 48 478; Mair v. Bassett, 117 356. 165. Upon the question, whether a loan by one deceased was made to the defendant, or a third person, who testifies that the loan was made to him, a memorandum, signed by the deceased, reciting a loan to the defendant, with the third person's receipt thereupon for part of the sum, is inadmissible, in an action by the executor, to prove that the loan was to the defendant; but it is admissible as affecting the credibility of the third person. Mair v. Bassett, 117 356. 166. And a check, drawn by the deceased on the day of the loan, and paid by the bank, is inadmissible, in the absence of proof connecting the defendant with it. Mair «. Bassett, 117 356. l.As to entries generally, seepcst, VIII, (4).] 167. In an action against a railroad company by a wife after her husband's death, for injuries inflicted upon her by collision with a locomo- tive, while travelling with her husband, his declarations, in her absence, as to the cause of the accident and the disposition of the horse, are inadmissible for the defendant. Shaw v. Boston & W. Railroad, (8 G.) 74 45. 168 On an indictment for embezzlement, the declarations of the deceased owner of the property aro inadmissible. Comm. «. Sanders, (14 G.) 80 394. 169 A deceased attesting witness's declara- tion is not competent, upon the trial of an issue as to a testator's competency. Baxter «. Abbott, (7 G.) 73 71. 170. But dying declarations are admissible, although the party was not present, if the person making them had no expectation of recovery; but not otherwise. And it makes no difference, that he did not die immediately afterwards. Maxwell v. Hardy, (8 P.) 25 560; Comm. ■». Richards, (18 P.) 35 434; Comm. v. Casey, (11 C.) 65 417; Comm. n. Carey, (12 C.) 66 246; Comm. v. Hackett, (2 A.) 84 136; Comm. v. Cooper, (5 A.) 87 495; Comm. fl.Felch, 132 22. 171. It is not sufficient that he believed his end near at hand, "although he might think there was a slight chance of life." Comm. ■». Roberts, 108 296. 172. Dying declarations are not inadmissible, because they were made in answer to questions, and were reduced to writing and sworn to by the deceased. Comm. v. Haney, 127 455. 173. The question whether they are admis- sible, is exclusively for the court, but their credibility is for the jury. Comm. v. Casey, (11 C> 65 417. 174. If • not admissible for the prosecution upon an indictment, they are not admissible for the defendant. Comm. «. Densmore, (12 A.) 94 535. 175. Where they were made in the party's presence, they may be admissible as part of the res gestm, although not as dying declarations. Comm. ■». McPike, (3 C.) 57 181. 176. Dying declarations may be made bv signs as well as words. ' Comm. ■». Casey, (11 C.) 65 417 (7.) Ocular evidence. 177. A plan or picture, made either by hand or by photography, is admissible in evidence in a civil or criminal cause, if verified by proof' to assist the jury in understanding the case. Blair v. Pelham, 118 420; Randall v. Chase, 133 210. See, also, Marcv «. Barnes, (16 G.) 82 161; Hollenbeck v. Rowley, (8 A.) 90 473. Contra, semble, Bearce v. Jackson, 4 408. 178. But not unless it is verified by the oath of the person who made it: the oath of others will not suffice. Hollenbeck ». Rowley, (8 A.) 90 478 179. "Whether it is sufficiently verified, is a preliminary question of fact, to be decided by the judge, and his decision is not open to ex- ception. Blair v. Pelham, 118 420 See, also, Comm. v. Casey, (11 C.) 65 417, Comm. e. Coe, 115 481; Walker «. Curtis, 116 98; and Exception, II, (3). 180. Burglarious tools, found in the prison- er's possession, may be exhibited to the jury upon the trial of an indictment, although only some of them were adapted to the commission 'of the particular offence charged, of breaking and entering. Comm. «. Williams, (2 0.) 56 582; Comm. ■». Wilson, (2 C.) 56 590. 181. So upon an indictment for abortion, thereby causing death, various instruments, found in the defendant's house, adapted for producing an abortion, may be exhibited, al- though also appropriate for use in lawful surgi- cal acts; so may injured parts of the bodyof the woman, preserved, in spirits, in connection with the testimony of the physician, who made the post mortem examination. Comm. 1>. Brown, 121 69. 182. So may, upon a trial for murder, a valise, supposed to have contained weights, attached to the body of the murdered person, found in the water. Comm. v. Costley, 118 1. 183. So as to a piece of burnt plank, in an indictment for malicious burning, it being the only part burned. Comm. v. Betton, (5 C.) 59 427. 184. So as to a wallet and bank bills, stolen from the person. Comm. v. Burke, (12 A.) 94 182. 185. So as to decanters, jugs, etc., in a liquw Comm. v. Blood, (11 G.) 77 74; Comm. v. Dearborn, 109 368. 186. Where, upon the trial of an action for fraud in making shingles, a parcel of the shin- gles was brought into, court, and the page, upon inspection, decided that they were not shingles, but chips, this was error, as the ques- tion belonged to the jury. M Morton v. Fairbanks, (11 P.) 28 *»• EVIDENCE, I, (7), (8), (9). 463 187. In a criminal cause, if a witness, when asked who did the act charged, says "that man," pointing to the prisoner, this identifies him properly. Comm. v. Whitman, 121 361. 188. The jury in a bastardy case may con- sider the resemblance between the child and the putative father, if, upon inspection, they find that such a resemblance exists; but such resemblance cannot be proved by witnesses. Eddy ». Gray, (4 A.) 86 435; Finne- gan v. Dugan, (14 A.) 96 197. 189. The jury may, upon inspection of a person in court, determine wliether he is under age. Comm. v. Emmons, 98 6. 190. Upon a trial for murder, where the de- fendant introduced evidence that the person, supposed to have been murdered, had been seen in the streets, since the time when the offence was alleged to have been committed, the govern- ment cannot show in rebuttal, that there was a person about the streets, who strongly resem- bled him:, the person must be produced. Comm. v. Webster, (5 C.) 59 295. 191. The jury may collect the meaning of a witness in part from his manner. Curtis i). Jackson, 13 507. 192. But emphasis, accent, gesticulation, or other manner of a witness, cannot give his words a meaning, which they would not have if written. Markey v. Mut. B. Ins. Co., 103 78. 193. A party, who has testified to a fact in issue, directly discernible by the senses, is not entitled, as of right, to fortify his testimony by proof of other facts, merely to render it more probable that what he swore to was true, where no evidence of its improbability has been adduced. Delano v. Smith Charities, 138 63. See, also, Sawyer v. Orr, 140 234. (8.) Scientific and otber printed books. 194. Medical works, even of recognized au- thority, cannot be read to the jury if an objec- tion is made thereto. Ashworth*. Kittridge, (12 C.) 66 193; Comm. v. Wilson, (1 G.) 67 337; Wash- burn t>. Cuddihy, (8 G.) 74 430; Comm v. Brown, 121 69. 195. The rule is not changed because they : are produced by an expert, who concurs in the views expressed. Comm. v. Sturtivant, 117 122. 196. So as to standard works on the subject M insanity, where that question is at issue. Comm. «. Wilson, (1 G.) 67 337. (VpiL^ 1 article in A PPleton's American lyclopsBdw cannot be read to the jury, on the question whether a certain island is commonly 2i S §^ ano island . in commerce and the ousmess of insurance. Whiton ? . Albany C. Ins. Co., 109 fi »™' "'l* ' Fuller «■ Princeton, 2 Dane ■M. add, therein cited. (9.) As affected by public policy. [As to the admissibility of the testimony of an at- torney or counsellor, see Attorney at Law, II. As to other matters pertaining to this subject, see Wit- ness, V, (6).] 198. The declarations, affidavits, or testimony of jurors cannot be received, to show that they misunderstood the directions of the judge, or assented to the verdict by misapprehension or otherwise, to impeach the verdict or other find- ing. Chadbourn v. Franklin, (5 G.) 71 312; Bridgewater v. Plymouth, 97 382. See, also, Dorr v. Fenno, (12 P.) 29 521; Hannum v. Belchertown, (19 P.) 36 311; Murdock v. Sumner, (22 P.) 39 156; Cook «. Castner, (9 C.) 63 266; Folsom v. Manchester, (11 C.) 65 334; Boston & W. R. R. v. Dana, (1 G.) 67 83; Woodward v. Leavitt, 107 453. _ 199. But where a sheriff's jury, by mistake, signed the wrong blank, and the verdict was accepted by the court; but at a subsequent term the entry, accepting the verdict, was corrected; affidavits of jurors were received to show the mistake, and a new trial was ordered. Capen «. Stoughton, (16 G.) 82 364; as explained and limited in Bridgewater v. Plymouth, 97 382. 200. And a member of a grand jury may tes- tify that a certain person did not give evidence before them. Comm. e. Hill, (11 C.) 65 137. [See, further, on this subject, New Trial, III, (4).] 201. Semite, that a husband cannot prove his wife's adultery. Canton v. Bentley, 1 1 441. [As to this subject, Bee further. Husband and Wife; Witness, 11,(3).] 202. Upon general grounds of public policy, courts will not, without permission of the gov- ernment, compel or allow the disclosure of in- formation, communicated to the government, of the commission of an offence against the laws, either by the subordinate officer to whom it was given, by the informer himself, or by any other person. Worthington v. Scribner, 109 487. 203. An offer to pay a certain sum as a com- promise of a claim, or the party's admission jhat he had made such an offer, is not admissi- ble on grounds of public policy. Marsh v. Gold, (2 P.) 19 285; Gerrish v. Sweetser, (4 P.) 21 374; Upton v. So. Reading R. R., (8 C.) 62 600; Da- vis v. Charles River R. R., (11 C.) 65 506; Harrington v. Lincoln, (4 G.) 70 563; Sikes ». Hatfield, (13 G.) 79 347; Johnson v. Trinity Ch., (11 A.) 93 123; Gays. Bates, 99 263; Copeland «. Tay- lor, 99 613. 204. Thus, in an action to recover back a tax wrongfully assessed, the town cannot show that the plaintiff offered to pay half the tax, if the assessors would abate the rest. Draper «. Hatfield, 124 53. 205. But an admission, made during an at- tempt at compromise, of the existence of a par- ticular fact, is competent. Marsh v. Gold, (2 P.) 19 285; Gerrish 464 EVIDENCE, I, (9), (10). v. Sweetser, (4 P.) 21 374; Needham v. Sanger, (17 P.) 34 500; Dickinson v. Dickinson. (9 Met.) 50 471; Snow ». Batchelder, (8 C.) 62 513; Harrington v. Lincoln, (4 G.) 70 563; Akers v. De- mond, 103 318; Durgin v. Somers, 117 55; Abbott «. Andrews, 130 145. 206. It is competent to prove that the puta- tive father of a bastard asked a witness whether he knew of a nurse for the child, if he could settle the case. Phillips v. Hoyle, (4 G.) 70 568. 207. Or that the adverse party to an action, at the time of an offer of compromise, threat- ened to expose the other party, if he did not Emerson « Boynton, (11 G.) 77 395. (10.) Rebuttal of adverse testimony; fortifying party's testimony. [See, also, ante, art. 193.] 208. The introduction or exclusion of imma- terial evidence, offered in reply to immaterial evidence, is within the discretion of the judge presiding at the trial. Brooks ■». Acton, 117 204: Treat v. Curtis, 124 348; Drury v. Midland Railroad, 127. 571. See, also, Marcy i>. Stone, (8 C.) 62 4; Veazie «. Someiby, (5 A.) 87 280; Rundell v. La Fleur, (6 A.) 88 480; Woodward v. Leavitt, 107 453; Davis «. Keyes, 112 436; Hathaway v. Evans, 113 264. 209. Even although the party first introduc- ing such evidence has waived it. Brown a. Perkins, (1 A.) 83 89; Ban- nister v. Alderman, 111 361; Perry v. Breed, 117 155. 210. But where, in the course of such evi- dence, testimony is given, which may improp- erly affect the decision upon a material point, its admission is good ground of exception. National Rubber Co. v Sweet, 129 36. 211. And where evidence is offered to rebut evidence on the otner side, which has already been excluded, an exception does not lie to its exclusion. " Swift v. Union Ins. Co., 122 573; Comm. v. Fitzgerald, 123 408. 212. The rejection of evidence in rebuttal, which does not contradict, or is insignificant in its contradiction of, the evidence to which it purports to reply, is not a sufficient ground of exception. Boston Glass M. Co. ■». Binney, (4 P.) 21 425;. Putnam v. Kingsbury, (16 P.) 33 371; Harrington v. Baker, (13 G.) 79 538; Flood v. Clemence, 106 299; Boles u. Boston, 136 398. 213. Evidence which would be incompetent per &6, is competent by way of rebuttal, if it tends in any degree to contradict or qualify evidence given by the adverse party. Smith «. Aldrich, (12 A.) 94 553; Cunningham v. Parks, 97 172; Em- mons ■D.'Westfield Bk, 97 230; Whitney v. Boston, 98 312; Clement s. Kimball 98 535; Bradley v. Rea, 103 ij|(j' Sheren v. Lowell, 104 24; Snow «' Moore, 107 512; Springfield v. Harris 107 532; Hayden «. Stone, 112 34^ Drury v. Midland R. R., 187 571! Brown v. Fales, 139 21. 214. Thus independent circumstances, irrele- vant per se, which tend to prove the probabil- ity of the version of the transaction by the party offering it, or the improbability of the other party's version, are admissible. Bradbury 11. Dwight, (3 Met.) 44 31 . Parkers. Coburn, (10 A.) 92 82; Upton B.Winchester, 106 330; Norris 1. Spof- ford, 127 85. 215. But if such evidence is too remote, as where an estimate of value is based upon an uncertain element, it is inadmissible. Harney v. Shaw, 141 340. 216. Where, in an action for the conversion of certain oxen, it appeared that the plaintiff derived title from A, through a sale from the defendant to A, upon a condition which had not been performed, and, at the same time and upon the same condition, A bought a horse, which he sold to the plaintiff, after he sold the oxen; and the plaintiff put in evidence, tending to show a waiver as to the horse; it was held, that this evidence tended to show a waiver of the condition as to all the property; and that the exclusion of evidence to show, that the question as to the horse had been determined against the plaintiff, in a former action, was error. Bates 0. Santom, 116 120. 217. So where, in defence to an action against a married woman for goods sold, she put in evidence a former action against herself end her husband for the same goods, which was discontinued, the plaintiff muy show that the husband was included by his attorney's mistake. Andrews v. Matthews, 124 109. 218. Where the adverse testimony stated that a material transaction occurred at the same time, or within a specified time before or after another transaction, irrelevant per te, the other party may, in rebuttal, give any evidence re- specting the latter transaction, tending to show the statement erroneous. Blake v. Damon, 103 199. 219. Where the testimony of the parties con- flicts, one cannot fortify his, by proof that at the time in question, he stated the same facts to a third person. Wallace v. Story, 139 115. 220. In an action for money lent at different times to the plaintiff's intestate, while he wai ill, evid.nce that he had money in bank suffi- cient to pay his expenses, is inadmissible. Burke v. Kaley, 138 464. 221. In general, a party cannot fortify his own testimony by extrinsic matters, until it has been assailed. _ „„ Delano v. Smith Charities, 13s ™- 222. But where the defendant, upon an issue of want of consideration for a note, to lomrj his own testimony, offered in evidence an agree- ment appearing to refer to the note, it was neiu, that the agreement should have been admitted. Sawyer v. Orr, 140 234. EVIDENCE, II; III; (1). 465 II. Judicial Notice. 223 The court cannot judicially know that such articles as oil, sulphur, and matches, are usually kept in stores for the sale of groceries 811 Pr wMt°marsh v. Charter Oak F. Ins. Co., (2 A.) 84 581. 224 The court cannot take judicial notice of foreign laws: they must he proved hke other fMtS ' Eastmans Crosby, (8 A.) 90 306. |See Conflict of Laws, II/] 225. Qu., as to the constitution of another Buffum v. Stimpson, (5 A.) 87 591. 226. The President's calls for troops, during the civil war, and the fact that quotas were assigned to all the towns in the Commonwealth, are matters of history, to be assumed without evidence. Wayland v. Ware, 104 46; Hanson v. So. Scituate, 115 336. 227. The courts are hound to take judicial notice, not only of the existence of a court in the Commonwealth, but of its local situation and jurisdiction, within a city and county of the Commonweath. Comm. v. Desmond, 103 445. See, also, Comm. ». Wingate, (6 G.) 72 485. 228. So as to the counties of the Common- wealth. Comm; v. Desmond, 103 445. _ 229. The court takes judicial notice of the judges, and whether a justice is a standing jus- tice or a special justice of a police court. Comm. v. Jeffts, (14 G.) 80 19. See, however, Eipley v. "Warren, (3 P.) 19 592. 230. But the supreme judicial court will not take judicial notice of the fact that a person who received the complaint, and who certifies the record as clerk of the district court, was such clerk, and therefore authorized to receive the complaint. Comm. D. Pay, 126 235. III. Btjbden of Proof; prima Facte Evi- dence. (1.) General principles as to both. 231. The burden of proof and the weight of evidence are two very different things. In a cml cause, the former remains on the party affirming a fact in support of his case, and does not change in any aspect of the cause; the latter smite irom side to side in the course of the trial, according to the nature and strength of the pools offered, in support or denial of the main tact sought to be established. ion J al Brid S e "• Butler, (2 G.) 68 k«- „ B „ ee v also ' Phillips n. Ford, (9 P.) *o 49; Powers v. Russell, (13 P.) 30 «hS; ■ R * BO /««*s evidence is evidence, which, ending alone, and unexplained, would main- yoL, i— 53 tain the proposition and warrant the conclusion, to support which it is introduced. Per Fosteb, J., in Emmons ». Westfield Bk., 97 230. 233. Upon a contract for beef sold and de- livered, where the answer contains a general denial, and alleges that the meat was unwhole- some, etc., the burden of proof, on the issue whether the plaintiff sold to the defendant gooJ and merchantable .meat, is upon the plaintiff. Evidence of the sale and delivery of beef of the quantity alleged would make a prima facie case: but it would not change the burden of proof. Zoller v. Morse, 130 267. See, also, Delano v. Bartlett, (6 C.) 60 364; Morrison*. Clark, (7 C.) 61 213; Nichols v. Munsel, 115 567; Funcheon v. Harvey, 119 469; Caverly d. McOwen, 123 574. 234. And in action against an attorney, to recover money collected in a suit in favor of the plaintiff, where the answer admits the col- lection of the money, but avers that the plaintiff was only a nominal party, and the suit was prosecuted for another, the burden of proving that the money belonged to the plaintiff is on him throughout, although the answer makes out a prima facie case. Ross e. Gerrish, (8 A.) 90 147. 235. In a civil cause, even although it in- volves an issue of fraud, or the like, the rule is, that the party who has the burden of proof sus- tains it, if the jury is satisfied that, upon the whole evidence, there is a preponderance of proof in his favor. Schmidt v. N. Y. Union Ins. Co., (1 G.) 67 529; Haskins «. Haskins, (9 G.) 75 390; Gordon v. Parmelee, (15 G.) 81 413; Ross ii. Gerrish, (8 A.) 90 147; Kline v. Baker, 106 51. 236. This qualification in the instructions to the jury, "that is to say, a balance of the probabilities of the case," tends to mislead them, and will sustain an exception. Haskins v. Haskins, (9 G.) 75 390. 237. But in an equity cause, where issues are tried by a jury, and the claim is such, that the rule in equity requires that it must be made out beyond all reasonable doubt, instructions to that effect are properly given to the jury. Stockbridge I. Co. v. Hudson I. Co., 102 45; Stockbridge I. Co. «. Hudson I. Co., 107 290. 238. In a criminal cause, the burden of proof is upon the government, which is bound to prove, beyond all reasonable doubt and to a moral certainty, every fact necessary to estab- lish the guilt of the accused. Comm. ii. Kimball, (24 P.) 41 366; Comm. v. Hardiman, (9 G.) 75 136; Comm. ii. Goodwin, (14 G.) 80 55. [As to the question of sanityi see post, art. 276.1 239. See as to variations from, or additions to, this form of expression, in the instructions to the "jury, Comm. «. Tuttle, (12 C.) 66 502; Comm. v. Goodwin, (14 G.) 80 56; Comm. v. Annis, (15 G.) 81 197; Comm. ». Choate, 105 451; Comm. v. Costlejr, 118 1. 466 EVIDENCE, HI, (1). 240. The government is bound to satisfy the jury, upon the whole evidence, that there was no justification. Comm. « McKie, (1 G.) 67 61. 241. And an instruction to the jury, that, if the government has made out a 'prima facie case, the defendant is bound to restore himself to the former presumption of innocence, is erroneous. Comm. 0. Kimball, (24 P.) 41 366. 242. But an instruction thit, if from the whole evidence, the jury believe, that the de- fendant sold lottery tickets, and had them in his possession for that purpose, they must find him guilty, unless he had succeeded to explain the facts consistently with his innocence, does not cast upon him the burden of proving his inno- cence. Comm. 0. Dana, (2 Met.) 43 329. 243. Where a negative fact must be proved to make out the offence, the government must prove it. Comm. 0. Samuel, (2 P.) 19 103. [See, also, Intoxicating Liquors, V, (3).] 244. But the burden of proving an affirma- tive defence, such as a prior conviction, or, where the charge is polygamy, a divorce, is upon the defendant; and upon such a defence he has the entire burden throughout. Comm. 0. Daley, (4 G.) 70 209; Comm v. Boyer, (7 A.) 89 306. 245. So where, upon a trial for murder, the defence is that the person supposed to have been murdered, has since been seen alive. Comm. 0. Webster, (5 C.) 59 295. 246. And where, upon a trial for murder, the homicide is proved, all circumstances of acci- dent, necessity, or infirmity, must be established by the defendant, unless they arise out of the evidence against him. Comm. v. Webster, (5 C.) 59 295. See, also, Comm. v. York, (9 Met.) 50 93. 247 But where all the attending circum- stances appear in evidence, and no excuse or justification is shown, the burden of proving malice, beyond a reasonable doubt, is upon the Commonwealth. Comm. ■». Hawkins, (3 G.) 69 463. 248. A proceeding for forfeiture of liquors, under St. 1869, Ch. 415, was of a criminal nature; and the allegations of the complaint must have been proved beyond a reasonable doubt. Comm. 0. Intoxicating Liquors, 105 595; Comm. 0. Intoxicating Liquors, 115 142. 249. The rule of evidence, requiring proof beyond a reasonable doubt, is generally applica- ble only in strictly criminal proceedings, and does not apply to civil suits, involving the proof of acts which expose the party to a crim- inal prosecution; such as a bastardy case, a d'yorce for adultery, an action for an assault, cnminal conversation, seduction, or the like; in all of which the general rule prevails, that proof by a reasonable preponderance of the evidence suffices. Roberge v. Burnham, 124 277. See, also, Schmidt 0. N. Y. Union Ins. Co., (1 G ) 67 529; Richardson v. Burleigh, (3 A..) 85 479; Young e. 103 50; Anderson «TEdwardB7' il i23 273. 250. The burden of proof is upon the Dartv holding the affirmative of the issue. Thus it ja upon the plaintiff, where the answer puts in issue the allegations of the declaration, to make out his whole case, as follows: In an action upon a bond for the prison limits, to prove the breach. Thornton v. Adams, (11 G.) 77 391 In an action to enforce a statute liability to prove all the facts upon which it depends. ' New Bedford 0. Hingham, 117 445, In an action upon an insurance policy, to show that the loss was not from an excepted peril. Sohier 0. Norwich Ins. Co., (11 A) 93 336. In an action for freight due upon a charter party, where the defence is damage, unneces- sary delay, and deviation, to show that he com- plied with all the terms of the charter party. Puncheon 0. Harvey, 119 469. In an action upon a covenant against incum- brances, to show that an incumbrance was law- ful. Lathrop 0. Grosvenor, (10 G,) 76 52. In an action upon a recognizance under 6. S., Ch. 124, § 10; P. S., Ch. 162, § 28, to show a breach. Blake v. Mahan, (2 A.) 84 75; Toll 0. Merriam, (11 A.) 93 395. In an action where the statute of limitations is pleaded, to show that the cause of action occurred within the limitation. Pond 0. Gibson, (5 A.) 87 19. In an action against a married woman, to show the facts making her liable without her husband. Gregory 0. Pierce, (4 Met.) 45 478; Tracy v. Keith, (11 A.) 93 214; Ken- dall 0. Jennison, 119 251. In an action to recover tolls, where a certain class of persons are excepted, to show that the defendant is not of the class. Central Bridge 0. Butler, (2 G.) 68 130. Where goods are damaged by two different causes, and the defendant is liable for only one, to show the extent of the damage by that C8/USC .' Priest 0. Nichols, 116 401. 251. Upon a complaint for keeping, and suf- fering to be kept, a billiard table, without a license, where it appears that the defendant let the premises to a tenant who kept the table, the burden is upon the defendant to show that the tenant is licensed. Comm. 0. McCarty, 141 420. 252. The burden is upon the defendant, after the plaintiff has made out a prima faeie case, as follows: In an action upon a note by a transferee, to show that a payment not indorsed was made before the transfer. Wilbour0. Turner, (5 P.) 22 526. In an action upon a note, dated before a day after which a statute made the note void, to show that it was given after the day. Bayley 0. Taber, 6 451. EVIDENCE, HI, (1), (2). 467 In an action aeainst a common carrier, to show that nonperformance was from a cause, which relieves him from liability. Lewis v. Smith, 107 334. In an action upon a stipulation in a deed to assume a mortgage, to show that he paid it. Jewett i). Draper, (6 A.) 88 434 In an action upon a bill of lading, excepting perils of the sea, to show that the goods were lost by such perils. Shaw ii. Gardner, (12 G.) 78 488. 253. And generally, where a prima facie case is made out, if the defendant would show matter in avoidance, the burden is upon him. "Wait ii. McNeil, 1 261; Gray i>. Gard- ner, 17 188; Attleborough v. Middle- borough, (10 P.) 27 378; Davis v. Jenney, (1 Met.) 42 221. 254. Thus in an action on an affirmative con- tract, if the plaintiff proves the contract, he is not bound to give evidence of nonperformance; it is for the defendant to prove performance. McGregory «. Prescott, (5 C.) 59 67. 255. But where the defence, although it is an assertion of new and independent facts, tends to establish the negative of the very proposition, which the plaintiff must prove in order to recover, the burden is upon the plaintiff; and a prima facie case, made out by the plaintiff, will not shift the burden. "Wilder «. Cowles, 100 487. 256. If the plaintiff declares upon an account annexed for work and labor, and offers evi- dence as to the value thereof, and the defendant answers with a general denial, and an allegation that the work was done under a contract for a certain sum, "which has been paid, and offers evidence in support of that allegation; the burden of proof does not shift, but is upon the plaintiff to prove the contract alleged by him, upon all the evidence. Phipps v. Mahon, 141 471. 257. The burden is upon either party who happens to hold the affirmative, as fullows: Where a contract is to be void upon the happening of an event, to show that the event has happened. Gray v. Gardner, 17 188; Thayer v. Connor, (5 A.) 87 25. Where a child is not provided for in his father's will, to show that the omission was intentional. Kamsdill v. Wentworth, 106 320. Where a waiver is alleged, to prove it. Brown v Worcester, (13 G.) 79 31. Where payment is alleged, to prove it. Burnham u. Allen, (1 G.) 67 496. (2.) Burden of proof upon particular questions. ■JB' ™ an ax5tion u P° n a judgment, brought within 20 years after its rendition, the plaintiff is not required to prove that an execution has oeen taken out or returned. O'Neal v. Kittredge, (3 A.) 85 470; uli'V- Hurle 7. H4 76; "Wilson v. Hatfield, 121 551 259. In an action upon a promissory note, by the payee, against the maker, the burden of proving consideration is upon the plaintiff; but he makes out a prima facie case bv production of the note. Delano v. Bartlett, (6 C.) 60 364. See, also, Burnham v. Allen, (1 C.) 55 467; Morris v. Bowman, (12 G.) 78 467. [See Bill of Exchange, etc., V.] 260. In such an action, the burden of proving subsequent failure of consideration is upon the defendant. Jennison v. Stafford, (1 C.) 55 168. 261. And in an action to recover back money for failure of consideration, the burden is upon the plaintiff. O'Brien v. Cheney, (5 C.) 59 148. [See Assumpsit, III- Conteacit, II, (8).] 262. The burden to prove want of consider- ation for a sealed instrument, is throughout on the party alleging it. Parker t> Floyd, (12 C.) 66 230. 263. The burden to prove fraud or false rep- resentations, is upon the party alleging this de- fence or cause of action. Hatch v. Bayley, (12 C.) 66 27; Stew- art v. Thomas, (15 G.) 81 171; Briggs ■b. Humphrey, (5 A.) .87 314; Elliott v. Stoddard, 98 145; Beatty v. Pishel, 100 448; Burnham v. Noyes, 125 85. 264. And if a defendant in an action for goods thus obtained, is a subsequent purchaser, the burden is upon him to show that his pur- chase was bona fide and for value. Easter ®. Allen, (8 A.) 90 7; Haskins v. "Warren, 115 514. So as to a note fraudulently obtained or put in circulation. Munroe v. Cooper, (5 P.) 22 412. 265. In an action upon a contract to pay a certain sum in iron castings, the plaintiff to furnish the patterns, if the defendant should not have such as he wanted, the plaintiff ha ■ ing re- quested that the castings be made on a basket of the defendant, the burden is upon the defend- ant to show that the basket is not a pattern. Perry v. Botsford, (5 P.) 22 189. 266. In an action for goods sold and deliv- ered, where the answer does not deny the delivery, but sets up a special contract and breach thereof, the burden is upon the defend- ant to prove the contract and the breach. Lothrop ». Otis, (7 A.) 89 435. 267. In a like action, brought more than 30 and less than 60 days after the sale, it being ad- mitted that the sale was upon a credit of either 30 or 60 days, jhe burden is upon the plaintiff to show that it was 30 days. Morrison v. Clark, (7 C.) 61 213. 268. In an action against A, for goods sold to B, his agent, the burden is upon the plaintiff to show not only the agency, but that he sold the goods upon A's account. Beals ». Merriam, (11 Met.) 52 470. 269. In an action for wood sold, under a con- tract to cut wood on the plaintiff's land, the burden is upon the plaintiff to show that the wood was cut on his land. Gilmore v. Wilbur, (18 P.) 35 517. 468 EVIDENCE, in, (2). 270. In an action to recover for goods sold with a warranty, the burden is upon the defend- ant to show a breach of the warranty. Dorr v. Fisher, (1 C.) 55 271. 271. In an action by the holder of stock, upon a contract to purchase it at a future day, the burden, under the laws of New York, is upon the plaintiff to show that, at the time of the con- tract, he held the stock, free from any liability or obligation for the sale and transfer thereof. Stebbins v Leowolf, (3 C.) 57 137. 272 Upon the question of the sanity or other capacity of a testator at the time of making his will, the burden is upon the party propounding the will, and it is not shifted by evidence of sanity, etc by the subscribing witnesses. Crowninshield r>. Crowninshield, (2 G.) 68 524, Barker v. Comins, 110 477. See, also, Phelps «. Hartwell, 1 71; Blaney «. Sargeant, 1 335; Breed ». Pratt, (18 P.) 35 115. [See, also, Lunatic, etc., lit.] 273. The burden of proving insanity of a grantor, so as to avoid his deed, is upon the party who seeks to avoid it. Howes Howe, 99 88. 274. Upon the question whether a will, or other instrument, or a gift, was procured by fraud or undue influence, the burden is upon the party alleging that fact. Baldwin v. Parker, 99 79; Davis «. Davis, 123 590; Woodbury ®. Wood- bury, 141 329. [See, also, Will, I, (5).] 275. Upon the question whether the execu- tion of a deed was procured while the grantor was of unsound mind, or under undue influ- ence, the burden is upon the party alleging that fact. Howe «. Howe, 99 88. 276. In a criminal cause, the burden of prov- ing sanity is upon the Commonwealth; but it is sustained by the presumption that all men are sane, unless overcome by the defendant's evi- dence, which must satisfy the jury, by a pre- ponderance of the whole evidence, that he was not sane. Comm. «. Eddy, (7 G.) 73 583; Comm. «. Heath, (11 G.) 77 303. 277. In all actions for damages for injury to person or property by negligence, the burden is upon the plaintiff, to show negligence on the part of the defendant, and ordinary care and diligence on his own part Lane v. Crombie, (12 P.) 29 177; Adams v. Carlisle, (21 P.) 38 146, Cars- ley e. White, (21 P.) 38 254; Tourtel- lot v. Rosebrook, (11 Met.) 52 460; Robinson «. Fitcnburg, etc., Railroad, (7 G.) 73 92. 278. But in an action against a bridge com- pany, bound to keep lamps lighted, for an injury happening at night when they were not lighted, the defendant is bound to show an excuse for the failure. Worster v. Canal Bridge, (16 P.) 33 541. 279. In an action against a town for injuries, in consequence of a defect in the highway, re- ceived while the pla : ntiff was travelling on Sun- day, the burden is upon the plaintiff to show- that he was travelling from necessity or charity Bosworth ». Swansey, (10 Met) 51 363. 280. In an action against an officer for neg lecting to attach property, the burden is upon the plaintiff to show that the property was the debtor's. Phelps v. Cutler, (4 G.) 70 137. 281. In an action for malicious prosecution, the burden is upon the plaintiff to show want of probable cause. Good v. French, 115 201. 282. Since the practice act, as formerly, in assault and battery the burden is upon the plaintiff to prove the assault, and upon the defendant to prove such matters as he relies upon for justification. Blake v. Damon, 103 199. 283. And if the justification is upon the ground of lawful authority, the burden is upon the defendant, who has filed an admission under a rule of court, to show that he used no unnecessary force. Loringfl Aborn, (4 C.) 58 608. 284.' But where the action is brought for ejecting the plaintiff from the defendant's rail- road car, where he was •wrongfully, the burden is upon the plaintiff, to establish any distinction, to which he claims to be entitled, as to his right to resist blows inflicted while ejecting. him, and his want of right to resist the ejection. Coleman v. New York, etc., Kailroad, 106 160. 285. In trespass against a railroad company, for entering upon the plaintiff's land, the burden is upon the defendant to show that it. is covered by the authorized location of its road. Hazen v. Boston & M. Railroad, (2 G.) 68 574. 286. In an action upon a policy of insurance, the burden of proof to show that a fact material to the risk was not communicated, is upon the defendant, even although it involves proof of a negative. Fiske v. New England Ins. Co., (15 P.) 32 310. 287. So where the defence is, that a matter material to the risk was untruly stated or repre- sented by the insured. Jones M. Co. v. Manuf . Ins. Co., (8 C.) 62 82; Daniels o. Hudson R. Ins Co., (12 C.) 66 441; Silloway «. Neptune Ins. Co., (12 G.) 78 73; Campbell «. New England Ins. Co., 98 381. 288. So that the fire was caused by a matter excepted from the risk. Kingsley «. New England Ins. Co., (80.) 62 393. 289. So that policy was made under a mutual mistake as to the expiration of a previous rat Dodd v. Gloucester Ins. Co., 1*' 151. 290. So that the policy was forfeited by non- payment of the premium. .... Hodsdon v. Guardian Ins. Co., 97 «*• 291. So that the property had been alienated by the insured, since the policy was made. EVIDENCE, III, (2), (3). 469 Orrell «. Hampden Ins. Co., (13 G.) 79 431 292. So that a subsequent insurance was made, contrary to the terms of the policy; in which case the defendant must prove that the two policies cover the same property Clark v Hamilton Ins. Co , (9 G.) 75 148. 293. But the burden of proving compliance with an express warranty is upon the plaintiff, although it is negative. McLoon v. Commercial Ins. Co , 100 472, McLoon v. Mercantile Ins. Co., 100 474, note. 294. So where the the policy recites that it is not to cover a loss by fire, originating " in the theatre proper." Sohier v. Norwich Ins. Co., (11 A.) 93 336. 295. And in an action upon a policy of ma- rine insurance, the burden of proving a loss, and to an amount, for which the insurers are liable, is upon the plaintiff. Heebner « Eagle Ins. Co., (10 G.) 76 131, Baker v. Manufacturers' Ins Co., (12 G.) 78 603; Paddock v. Commercial Ins Co., 104 521, Cory v. Boylston Ins. Co , 107 140. [For rulings as to seaworthiness, and additional rulings upon the burden of proof in an action upon a marine insurance policy, see Insurance, V, (5); V, (6);V.(15).l 296. A mutual insurance company , in an action to recover assessments upon a deposit note, has the burden of proving the assessments, and that they were made pursuant to the char- ter and by-laws. Atlantic Ins. Co. v. Fitzpatrick, (2 G.) 68 279; People's Eq. M. E. Ins. Co. v. Arthur, (7 G.) 73 267. 297. And a foreign company has the burden of proving compliance with our statutes. Jones ii. Smith, (3 G.) 69 500. 298. In an action upon a contract, where the defence is that the consideration was for intoxi- cating liquors, illegally sold or to be sold, the burden of proof is upon the defendant to show the illegality. Timpson v. Moulton, (3 C.) 57 269; "Wilson e. Melvin, (13 G.) 79 73; Brig- ham e. Potter, (14 G.) 80 422; Trott *. Irish, (1 A.) 83 481; Prattle. Langdon, 97 97. / n B 299. In an action for rent, where the defence is that the premises were knowingly let for the illegal sale of intoxicating liquors, the plaintiff is entitled to an instruction, not only that the burden is upon the defendant to show that the sales were unlawful, but also that the presum- ption is that sales of liquor on the premises were lawful. Jones «. McLeod, 103 58. „ !?£"" additional rulings on this subject, see Intoxi- S™nm°i 0[IS ' IU; V ' (4)i LAND1L0KD **>*> T™- . 800. In an action upon a promissory note by tue indorsee, who knew the facts, against the accommodation indorser, where the defence is that it was given in the firm name by a partner lor his private debt, the burden of proof is upon the plaintiff to show that the defendant also knew the facts. Chazournes 11. Edwards, (3 P.) 20 5. 301. Where a partnership is carried on the name of one of the partners, the burden is upon the plaintiff to show that a note in his name was given for the copartnership. Manuf. & M. Bk. «. Winship, (5 P.) 22 11. 302. In an action against an indorser, the burden, as to matters in avoidance of the note, is upon the defendant, although the plaintiff knew that he was an accommodation indor: er, Lincoln «. Stevens, (7 Met.) 48 529. 303. In an action by an assignee in insolvency, co recover the value of property transferred by way of preference to a creditor, the burden is upon the plaintiff to show, that the defendant had reasonable cause to believe that the debtor was insolvent. Butler v. Breck, (7 Met.) 48 164. 304. In an action by an executor or adminis- trator, for an injury resulting in death, in a case not within the statute of 1881, allowing such an action, the burden of proof is upon the plaintiff to show that the deceased survived the injury for an appreciable time. Corcoran v. Boston & A. Railroad, 133 507. See, also, Hollenbecke. Berk- shire Railroad, (9 C.) 63 478; Kearney v. Boston & W. Railroad, (9 C.) 63 108, Bancroft *. Boston & W. Railroad, (11 A.) 93 34; Norton «. Bewail, 106 143; Moran «. Hollings, 125 93; Kennedy v. Standard Sugar Refinery, 125 90, Nourse «. Packard, 138 307. (As to the burden of proof in other actions, see the titles of those actions and the subjects thereof.] (3.) Prima facie evidence upon par- ticular questions. LSee, also. Auditor; and numerous cases under IV, post ; also the titles of the several actions and subjects of actions.] 305. Possession of a legal instrument by a party is prima facie, but not conclusive, evi- dence of the delivery thereof by the other. Whitaker « Salisbury, (15 P.) 32 534; Chandler v. Temple, (4 C.) 58 285. 306. The date of a deed is prima facie, but not conclusive, evidence of the time when it was executed. Smith «. Porter, (10 G.) 76 66; Dresel v. Jordan, 104 407. See, also, Lee v. Mass Ins. Co., 6 208; Harrison v. Phillips Academy, 12 456; Hedge v. Drew, (12 P.) 29 141; Parker v. Hill, (8 Met.) 49 447, and post, YII, (4). 307. The record of conviction 6f a principal is prima facie evidence of his guilt, against the accessory, where the two are included in one indictment, and separately tried. Comm. v. Knapp, (10 P.) 27 477. 308. The breaking down of a conveyance, or the loss of a ship, without any apparent cause, is prima facie evidence of negligence in one case, and unseaworthiness in the other. Ware v. Gay, (11 P.) 28 106; Pad- 470 EVIDENCE, HI, (3); IV, (1). dock v Franklin Ins. Co., (11 P.) 28 227, Swift v. Union Ins. Co., 123 573. 309. Where a party's signature to an instru- ment is proved or admitted, this is ^rima facie evidence that the whole body of the instrument is his act, although an alteration is alleged; but the burden of proof is nevertheless upon the plaintiff. ■Simpson v. Davis, 119 269. See, also, Davis v. Jenney, (1 Met.) 42 221, Ely v. Ely, (6 G.) 72 439. 310. In an action by a surety against a co- surety for contribution, proof that the principal, in another state, and under the laws thereof, surrendered all his property to his creditors, and that there was enough to pay all, including the plaintiff, who was named among them, is prima facie a bar to the action, and must be rebutted by proof, that on settlement of the account, the plaintiff will receive nothing. Cockayne ». Sumner, (22 P.) 39 117. 311. Qu., whether, where an insurance com- pany, by vote, fixed the president's salary at a certain sum, that is prima facie evidence that a president, afterwards elected, is entitled to the same sum. Comm. Ins. Co. «. Crane, (6 Met ) 47 64. 312 An instrument in this form, "Borrowed and received of A $260, which I promise to pay on demand, with interest," imports a con sideration. Cochran v. Duty, (8 A.) 90 324. 313. Proof of execution, delivery, acknowl edgment, and recording, of a mortgage of a third person to the demandant, is prima facie sufficient to sustain a writ of right, without proof of title in the third person. Burridge v. Fogg, (8 C.) 62 183. 314 The fact that a person's name is upon the voting list, is prima facie evidence of his right to vote. Harris v. Whitcomb, (4 G.) 70 433 315. An averment in the record of the pro- bate court of another state, that notice was given to all interested, is at least prima facie evidence of that fact. Clark *. Blackington, HO 369. 316. Upon an indictment for selling intoxi- cating liquors, the selectmen's certificate of the defendant's appointment as town agent is prima facie evidence of such appointment, without proof that he gave the statutory bond. Comm. v. Putnam, (4 G.) 70 16. 317. The burden of proving the regularity of proceedings in insolvency is upon the debtor; but the certificate of discharge is prima facie evidence thereof. Blanchard v. Young, (11 C.) 65 341. 318 Semdle, however, not as to the oath Cox o. Austin, (11 C.) 65 32. IV. Pbestjmptions. (1.) Real or personal property, L3ee, also. Adverse Possession, and cases in arete. 319. Twenty years adverse possession of land raises a presumption that the possessor had a deed of the land, and that all things necessary to give effect to the deed have been done. Brattle Sq. Ch. v. Bullard, (2 Met.) 43 363. See, also, Eyder «. Hathaway (21 P ) 38 298; Valentine v. Piper, (22 P.) 39 85; White v. Loring, (24 P.) 41 319. 320. So as to a right of way. Hill «. Crosby. (2 P.) 19 466; Bolivar M. Co. a. Neponset M. Co., (16 P.) 33 241. 321. For rulings as to the presumption of a deed from adverse possession, before the E. S., see Melvin v. Locks & Canals, (16 P ) 33 137; Melvin v. Locks & Canals, (17 P) 34 255; Hall v. Thayer, (5 G.) 71 423. 322. A grant may also be presumed from adverse possession, and a recital in a n ortgage or deed, that the land had been bought from the owner. Clark ».Faunce, (4 P.) 21 245; Ryder ■o. Hathaway, (21 P.) 38 298. 323. So as to the right to hold meetings in a parish house, from long use for that purpose. Goff v. Rehoboth, (12 Met.) 53 26. 324. The presumption that real property de- scended to heirs, is not rebutted by testimony that the ancestor left a will, without legal proof of its contents, or the execution thereof. Morris v. Callanan, 105 129. 325. Where a citizen dies intestate, the pre- sumption, as against the Commonwealth, is that he left heirs. Wilbur v. Tobey, (16 P ) 33 177. 326. Proof of the execution and registry of a mortgage to secure a note, is presumptive evi- dence of the mortgagee's title to the land, with- out production of the note. Davis v Mills, (18 P.) 35 394; Smith v Johns, (3 G.) 69 517. 327. A trust, resulting by implication of law, from payment of the purchase money of land conveyed to another, may be rebutted by evi- 'dence of other circumstances, which negative such a presumption. Livermdre v. Aldrich, (5 C.) 59 431. 328. Where a son, bearing the same name as his father, takes a deed without the addition of the word " junior" to his name, this does not raise a presumption that the father took the title; and oral evidence is admissible to show who is the grantee. Simpson v. Dix, 131 179. See, also, Scanlan v. Wright, (13 P.) 30 523; Pea body v. Brown, (10 G.) 76 45; Kings- ford v. Hood, 105 495. 329. Possession of a chattel, with the consent of the former owner, does not raise a presump- tion of title. „_ West Springfield v. Root, (18 P.) 35 318; Magee «. Scott, (9 C.) 63 148. 330. But long possession, under an adverse claim of title, raises such a presumption. Stockbridge v. W. Stockbridge, 1* 257, West Springfield v. Root, (18 P.) *» 318 EVIDENCE, IV, (1), (2), (3), (4). 471 TAs to presumption of title from possession of a note or fill, see Bill of Exchange and Promis- sory Note, V ] 331. Furniture, provided lor a daughter by her father on her marriage, is presumed to have been given to her. Nichols e. Edwards, (16 P.) 33 62. 332. A sale of a chattel is presumed to have been absolute. Sawyers. Spofford, (4 C.) 58 598. 333. Acceptance of a provision for a widow in lieu of dower is presumed, where it is bene- ficial Merrill v. Emery, (10 P.) 27 507. 334. "A small fish-house and camp," is not, from that description, presumed to be real prop- erty. Rogers » Woodbury, (15 P.) 32 156. 335. There is no presumption from the fact that certain persons attended a recent meeting of a proprietary, called by a justice of the peace, that they were in fact proprietors Stevens v. Taft, (3 G.) 69 487; Kil- bom v. Rewee, (8 G.) 74 415. 336. The possession, unsatisfactorily ac- counted for, of property stolen, is presumptive evidence of guilt. Coram, v. McGorty, 114 299. (2.) Negotiable paper, (See, also, Bill oe Exchange and Pbomissoby Note, V.] 337. Where bonds, to which negotiable inter- est coupons were attached, were stolen before maturity, and after maturity the coupons were bought by a person, and came from him by in- termediate purchasers to the defendant, all hav- ing purchased them for value and in good faith, there is no presumption, as against the owner, that the thief negotiated the coupons before maturity. Hinckley*. Merchants' Bk., 131 147. 338. The presumption is, that a note indorsed m blank, was purchased by the holder from the payee Peaslee «. Robbins, (3 Met.) 44 164. 339. Also, that it was transferred on the day of its date. Hoxon b. De Wolf, (10 G.) 76 343. 340. And that where one of the defendants is a maker, and the other two are joint indorsers, all signed at the same time. Benthall v. Judkins, (13 Met.) 54 265. (3.) Records, and otber written Instru- ments. hotV^JSSP™--^ n); Vobmeb, Adjudica- tion, ii, judgment; Beoobdj and port, IV, (8).] 341. A record of conviction, before a justice nflwf § ea ^ of , the count y of Middlesex, of an T ™fvT d ^ le S ed t0 have been committed in tinn ti * Pri™* facie a want of jurisdic- i Z'JtJ* P° hc i cou rt of Lowell has exclusive jurisdiction of offences in that city. rtper e. Pearson, (2 G.) 68 120. I 342. Upon an indictment for illegally main- taining a tenement in Boston, it will be pre- sumed that witnesses, who testified that the tenement was on India wharf, meant India wharf in Boston. Comm. v. Ackland, 107 211. 343. Where a statute, passed in 1778, incor- porated the town of W., and provided that L, who resided without its limits, might join the town with his estates by filing a writing ■with, the clerk of the old town, by whom it should, be entered upon the records; and the record only shown a notice from the last named clerk to the clerk of W. that L had joined the town of W.; and the town of W. had taxed his prop- erty for nearly 100 years, it was presumed that he had filed the statutory notiee. Piatt v. Grover, 136 115. 344. A statement in the record of the proceed- ings before a commissioner in insolvency, that the debtor filed his schedules, is presumptive evidence that he did so. Lothrop v. Tilden, (8 C.) 62 375. 345. So as to a statement in the record of a court of another state, that a bond was filed by a party and approved, in order to discharge cer- tain property from a mortgage. Buffum v. Stimpson, (5 A.) 87 591. 346. As to the presumption in favor of an ancient book of records of the proprietors of common lands. Tolman v. Emerson, (4 P.) 21 160. 347. The presumption that an estate is in a certain place, arising from the fact that a writ- ten contract to convey it is dated at that place, is one of fact, and may be rebutted by oral evi- dence. Mead «. Parker, 115 413. 348. A party is presumed to know the date and contents of an instrument which he signs; and that it has no date, if such is the fact Androscoggin Bk. i>. Kimball, (10 C.) 64 373. 349. In an action on a policy of marine in- surance, after an abandonment, an agreement to arbitrate, and a refusal of the company io pay, on the ground of unseaworthiness, the furnishing of the preliminary proofs will be ■presumed. Martin®. Pishing Ins. Co., (20 P.) 37 389. 350. An assignment by a debtor of all his property to trustees, for the payment of his creditors pro rata, raise's no presumption that the creditors assented. Russell ii. Woodward, (10 P.) 27 408; Fall R. Iron Works v. Croade, (15 P.) 32 11. I As to presumption of delivery Of an Instrument, see Contract, X. (2); Deed, L, (3).] (4.) Contract, express or implied, [See, also. Assumpsit, IV j Contract, l, (1); II; Covenant.) 351. Qu., whether there is a presumption of an implied contract by a father to pay his daughter for services, after she became of age. Guild v. Guild, (15 P.j 32 129. 472 EVIDENCE, IV, (4), (5), (6), (7), (8). 352. Upon the question whether, as between other near relations, there is an implied promise to pay for board, lodging, services, etc , there is no presumption that they were rendered or furnished gratuitously, and there is a presump- tion of an implied promise, but all the circum- stances will be considered. Spring v. Hulett, 104 591; Thurston v Perry, 130 240; Williams v. Wil- liams, 132 304. 353. A usage of two towns for 50 years, as to the mode of settling the yearly expenses of a bridge, raises a presumption of such a contempo- raneous construction of their rights, or that such a contract was made. Cambridge v. Lexington, (17 P.) 34 222 354 False representations by a party before contracting, about the subject matter of the con- tract, are presumed to have been relied upon by the other party. Holbrook v. Burt, (23 P.) 39 546. (5.) Death; survivorship. 355. The fact that neither a vessel, in which a person went to sea forty years ago, nor the person hims Jf , has ever since been heard of, raises a presumption of his death. Bowditch d. Jordan, 131 321. 356. Death is presumed from the absence^of a person for seven years from his home, with- out being heard from; and to rebut that pre- sumption, evidence is admissible of his having been heard from, during that period, although by others than members of his family. Loring «. Steineman, (1 Met.) 42 204; Comm » Thompson, (11 A.) 93 23; Flynn «. Coffee, (12 A ) 94 133. 357. But a less period than seven years will not suffice Newman «. Jenkins, (10 P.) 27 515. See, also, Comm. v. Cullins, 1 116. 358. However, where a woman marries for the second time, after her husband has been absent for four years, and he is not heard of thereafter, the presumption of lawfulness and innocence applies, after the seven years, and she is presumed to be the second husband's lawful wife Kelly « Drew, (12 A.) 94 107. [See, however, post, art. 873.1 359. The presumption of a husband's death does not apply, where his wife leaves him and does not hear from him for seven years, although she left him by reason of ■ his misconduct, and if he is in fact living, a man who marries her in good faith is guilty of adultery. Comm. « Thompson, (11 A.) 93 23. 360. Where a person claims title to land, under one of six children of the former owner, proof that the other five have not been heard of in 70 years, justifies a jury in finding that they died without issue. King «. Fowler, (11 P.) 28 302. 361. Where two or more persons perish at sea in a common disaster, and there is no evi- dence tending to show which one survived the other, the- e is no legal presumption of survivor- ship, from difference in age or sex; and the legal presumption is that they perished annul- taneously. Cove «. Leach; (8 Met;) 49 371. See also, Fuller v. Linzee, 135 468. (6.) Continuance of fact. [As to the presumption in favor of sanity or in- sanity, see JjthtatiCi etc., III.] 362. Domicil once acquired is presumed to have continued. Chicopee v. Whately, (6 A.) 88 508. |See Domicil. 1 363. Ownership of a chattel, once proved, is presumed to continue, although the possession was parted with. Magee v. Scott, (9 C.) 63 148. 364. So of seisin. Brown «. King, (5 Met.) 46 178; Currier v. Gale, (9 A.) 91 522. 365. So of seaworthiness of an insured vessel, where she was seaworthy when the policy was issued. Martin v. Fishing Ins. Co., (20 P.) 37 389. [.See, also, Insurance, V, (5).] (7.) Intent. (See, also, poet, IX, (4).} 366. Proof of homicide, unaccompanied with evidence of any circumstance of extenu- ation or excuse, raises the presumption of malice, and that the act was murder. Coram, v. York, (9 Met.) 50 93; Comm. v. Webster, (5 C.) 59 295, Comm. v. Hawkins, (3 G.) 69 463. [See, also, Homicide, II, (4).] 367. The publication of a calumny, which the publisher has no reason to believe to be true, raises a presumption of malice. Bodwell v. Osgood, (3 E.) 20 379. 368 Where it is shown that a wife went to another state, and there obtained a divorce, for a cause not a ground of divorce in this State, her husband remaining here, this raises a_ pre- sumption that she went there to obtain a divorce. Chase v. Chase, (6 G.) 72 157. 369. An intent to give an unlawful prefer- ence to a creditor, under the insolvency law, is presumable from the fact of giving him a DrcfcTGHCG Denny v. Dana, (2 C.) 56 160; v. Clark, (13 G.) 79 18. (8.) lawfulness) honcsLy. [See, also, ante, arts. 298, 299, 358, also, port, IX, (4).] 370. On the trial of an indictment found on the 18th day of the month, for unlawfully sell- ing liquor, there is no presumption that a sale, proved to have been made in that month, was made after indictment found. Comm. v. Dillane, (1 G.) 67 483. EVIDENCE, IV, (8), (9) y (10). 473 871 Every man Is presumed to act honestly and without fraud; and where fraud is alleged, the proof must be sufficient, not only to estab- lish an innocent act, but to overcome the pre- sumption of honesty. P Hatch o.Bayley. (12 C.) 66 27 372. A marriage de facto is presumed to have been lawful. Eaynham e. Canton, (3 P.) 20 293 373. But a long lapse of time, during which a wife has not heard from her husband, fol- lowed by her marriage to another, will not raise a presumption of her divorce from her first husband Eandlett «. Eice, 141 385. 374. A notice of the annual town meeting is presumed to have been legal. Gilmore ®. Holt, (4 P.) 21 258. 375. But there is no presumption, even after twenty years from the publication by an ad- ministrator of notice of his appointment, that he also posted it. Hudson v. Hulbert, (15 P.) 32 423. 376. Where a trustee under the will of a tes- testator, who died more than seventy years be- fore, has been dead twenty years, it is presumed that he conveyed the entire property, including a legal interest vested in him, as heir of the tes- tator, to the eestuis que trust. Greenough v Welles, (10 C.) 64 571. 377. The court, which granted an innholder's license, is presumed to have had the proper evi- dence before it Comm v. Bolkom, (3 P.) 20 281. 378. 0n certiorari, after judgment, it was presumed that the complainant, in a bastardy process, was of age, where she had entered her complaint by attorney, and pleaded by guar- dian. Comm i>. Moore, (3 P ) 20 194. 379. Proof that a warrant, under the Provin- cial laws, warning a person out of the town, to prevent his obtaining a settlement, was issued, served, and returned, does not raise the pre- sumption chat the return showed that it was served on him, within a year after he came to the town, as required by the statute. Franklin e. Dedham, (18 P.) 35 544. 380 Where probate records are apparently entire, it cannot be presumed, even after thirty years, that any notice was given, or decree was passed, which does not appear therein. Hathaway e. Clark, (5 P.) 22 490. 381. An official certificate of a field driver is presumed to be correct. Pickard v Howe, (12 Met) 53 198. nf 1 «ffl?'„Pj es i mi P ti0, ' s m favor of the performance oi official duty, see, also. Office and Officer.] (9.) Receipt of letters, etc., sent. A^'^' p °^'Jl^' and arts- 610, 516, 653 to 558. ffirr&ESSS of dJfkpnor sent by mail, see Bill op MCHANGE, ETC., HI, (3).] 382 Where it was the usage at a hotel to de- posit letters, left for guests, in an urn, whence mey were sent, at short intervals during the oay, to the rooms of the different guests to Vol. 1—60 whom they were directed, proof that a letter to a guest was left at the bar, will be presumed to have reached him Dana v. Kemble, (19 P.) 36 112. 383. The depositing in the post-office of a let- ter properly addressed, with the postage pre- paid, is prima facie evidence that the person to whom it was addressed received it. Huntley «. Whittier, 105 391, Briggs v. Hervey, 130 186. See, also, Munn v. Baldwin, 6 316. These cases, semble, overrule, pro tanto, Groton v. Lancaster, 16 110; Greenfield Bk. ». Crafts, (4 A.) 86 447. 384. But where money is transmitted in a letter through the post-office, without previous direction, either express or implied, from the person to whom it is sent, that raises no pre- sumption that it was received. Crane e. Pratt, (12 G.) 78 348. See, also, Wakefield v. Lithgow, 3 249; Gur- ney v. Howe, (9 G.) 75 404; Morgan v. Eichardson, (13 A.) 95 410. iSee, also, Payment, II ; Post-Office.] 385. A demand is presumptively proved, by evidence, that a prepaid letter containing it, was duly mailed, with a printed request on the envelope, to return it to the sender, if not called for within ten days. Hedden v. Eoberts, 134 38. (10.) miscellaneous questions. lAs to presumptions in relation to character, see post, IX, (1) ; identity, post, IX, (3) ; corporate acts, Corporation, VI; v III; foreign laws, Conflict of Laws. II; Insanity, agency, devise and bequest, limitation, payment, legitimacy, negligence, carrier, etc . , see those titles respectively."] 386. Where, upon the taking of A's deposi- tion in 1874, B was the defendant's counsel, and in 1876, in another action between the same parties, A's deposition was again taken, and B advised him not to answer certain Inter- rogatories, there being no evidence that B was then the defendant's counsel, there is nothing to justify the inference that the defendant, through his counsel, then tampered with the witness. Abbott v. Pearson, 130 191. 387. A certificate of membership by a min- ister of " The United Baptist Society" is pre- sumed to be correct. Comm. ». Stow, 1 54. 388. If A demands payment of a sum of money from B, and B hands him the money, stating that he does so upon certain conditions, and A receives the money and remains silent, his assent to the conditions is presumed. Halls Holden, 116 172. 389. An except'on does not lie to an instruc- tion to the jury, that the presumption of part- nership, from the use of a name appropriate to a partnership, is slight and easily rebutted. Charman v. Henshaw, (15 G.) 81 293. 390. The owner of a bull is presumed to know, that if he should become excited while being driven through a street, he would become dangerous. Linnehan v Sampson, 126 506. 4?4 EVIDENCE, IV, (10); V, (1). 391. There is no presumption, of law, that a street railway obstructs travel, or renders it dangerous. Hawks v. Northampton, 121 10. 392. "Where two acts are done at the same time, the one shall take effect first which ought, in strictness, to have been done first, in order to give it effect. Claflin v. Thayer, (13 G.) 79 459; Carleton ». Ashburnham, 102 348. 393. A principal, who fails to disavow his agent's unauthorized act, within a reasonable time after it comes to his knowledge, is pre- sumed to have ratified it. Brigham v. Peters, (1 G.) 67 139. [See, also, Agency, II. 1 394. The proper laying out of a town way, as distinguished from a public highway, may be presumed from long user, repairs, etc. Comm. v. Belding, (13 Met.) 54 10; overruling, pro tanto, Comm. v. Newbury, (2 P.) 19 51; and Comm. v. Low, (3 P.) 20 408. 395. The service of a summons on a defend- ant does not raise a presumption, that he had notice of the contents of the writ. Phillips v. Ford, (9 P.) 26 39. 396. Imprisonment for debt, in another state, raises no presumption, that the person im- prisoned is a resident of that state. Agnew «. Piatt, (15 P.) 32 417. V. Best aot> secondaby Evidence (1.) General principles. 397. Evidence of an inferior nature, which presupposes evidence of a higher nature to be in existence and attainable, is inadmissible. Comm. v. Kinison, 4 646; Waterman v. Bobinson, 5 303; Bassett v. Marshall, 9 312; Taunton Turnpike v. Whiting, 10 327. 398. But this does not mean that all the evi- dence, which exists in the cause, shall be pro- duced, but merely that a fact shall not be in- ferred from evidence, where more direct and conclusive evidence of the fact may be had. Comm. v. Kinison, 4 646; Comm. ■». James, (1 P.) 18 375. 399. Where a ship is condemned abroad, as not worth repairing, the plaintiffs, in an action upon the policy, are not obliged to produce the survey, but may prove the condition of the vessel by oral evidence. Mitchell v. New England Ins. Co., (6 P.) 23 117. 400. And in a like action, where it was proved that the vessel was seized by a hostile force, he was not required to produce the decree of condemnation. Dorr v. Pope, (8 P.) 25 232. 401 Oral evidence is not competent to prove a contract, where the plaintiff in his declaration has set out a written contract. Hall« Gardner, 1 172. 402. Where a deposition, which a party will not produce, was taken, the matters proved therein cannot be shown orally by him. Orrok v. Comm. Ins. Co., (21 p.) 3a 456; Hanson v. Carlton, (6 A.) 88 276. 403. Oral evidence, to prove the issuing of a warrant and the arrest of a person, is incompe- tent, unless it is shown that neither the warrant nor a copy can be produced. Hackett v. King, (6 A.) 88 58. 404. And, in general, whatever appears or ought to appear as matter of record, cannot be proved by oral evidence or a copy, unless the original record is lost or destroyed, in which case it may be so proved. Dillingham 1>. Snow, 5 347; Stock- bridge 0. West Stockbridge, 12 400- Thayer v. Stearns, (1 P.) 18 109; Shel- don v. Prink, (12 P.) 29 568; Sturte- vant v. Bobinson, (18 P.) 35 175- Spaulding v. Bancroft, (23 P.) 40 54 : Stone v. Crocker, (24 P.) 41 81; Sayles v. Briggs, (4 Met.) 45 421; Eaton v. Hall, (5 Met.) 46 287; Griffin v. Rising, (2 C.) 56 75; Comm. v. Boark, (8 C.) 62 210; Wells v. Stevens, (2 G.) 68 115; Comm. v. Quin, (5 G.) 71 478; Moore v. Lyman, (13 G.) 79 394; 01m- stead v. Partridge, (16 G.) 82 381;. Lund v. George, (1 A.) 83 403; Richard- son ». Smith, (1 A.) 83 341; Dooley v. Wolcott, (4 A.) 86 406; Metcalf », Munson, (10 A.) 92 491; Hobart S.Ply- mouth County, 100 159; Dailey v. Coleman, 122 64. [See, also, Eecord.1 405. It may also be so proved, where it is shown that no record was made up, unless a record thereof is required by law. Waters v. Gilbert, (2 C.) 56 27; Bas- sett i). Porter, (4 C.) 58 487. 406. But minutes, lost before they are ex- tended on the record, are deemed to be a record within the rule. Pruden v. Alden, (23 P.) 40 184; Wallace v. Townsend Parish, 109 263. 407. The same rule holds as to an assignment in bankruptcy, a deed, a contract, or any other instrument in writing, where it is lost or de- stroyed, or where it is in possession of the ad- verse party, who refuses to produce it. Brigham v. Coburn, (10 G.) 76 329; Holmes v. Hunt, 122 505; Hersey v. Jones, 128 473; Fletcher ». Powers, 131 333, See, also, Hall ». Hall, 1 101: Kennebeck Purchase v. Call, 1 483; Jones v. Fales, 5 101; Reynard fl.Breck- nell, (4 P.) 21 302; Poignard ». Smith, (8 P.) 25 272; Boynton v. Bees, (8 P.) 25 329; Hathaway v. Spooner, (9 P.) 26 23; Van Deusen v. Frink, (15 P.) 32 449; Fales v. Russell, (16 P.) 33 315; Hope Ins. Co. v. Chapman, (6 G.) 72 75; Stratford v. Ames, (8 A.) 90 577. [As to notice to produce, see post, V, (5). I 408. The rule extends to an instrument, for the forgery of which the defendant is on trial. Comm. •». Snell, 3 82. 409. And to entries in partnership or other books. Hunt v. Roylance, (11 CO 65 117 EVIDENCE, V, (1), (2). 475 410. In a case where it is claimed that a record or other instrument is lost, the law requires only- such preliminary proof, as induces a presump- tion of the loss; and the question whether such a presumption is sufficiently established, is addressed to the discretion of the presiding ^ ge 'Brigham 0. Coburn, (10 G.) 76 329. See, also, Donelson 0. Taylor, (8 P.) 25 390, Page v Page, (15 P.) 32 368. For rulings as to the sufficiency of such proof in particular cases, see Taunton Bk. v. Richardson, (5 P.) 22 436, Poignard 0. Smith, (8 P.) 25 272; Hathaway «. Spooner, (9 P.) 26 23; Central Turnpike v. Valentine, (10 P.) 27 142; Chapin e. Taft, (18 P.) 35 379; Whitney v. Sprague, (23 P.) 40 198; Mai'cy 0. Marcy, (6 Met.) 47 360; Pos- ter «. Maekay, (7 Met.) 48 531; Tillot- son 0. Warner, (3 G.) 69 574; Hatch 0. Carpenter, (9 G.) 75 271; Mitchell 1>. Shanley, (12 G.) 78 206; Atherton 0. ' Phcenix Ins. Co., 109 32. 411. The rule that the party must himself make oath to the loss of a paper, of which he is supposed to have the custody, is not in- flexible. Jones v. Fales, 5 101; Foster 0. Mac- " kay, (7 Met.) 48 531. 412. A will or codicil, fraudulently destroyed, may be established upon oral evidence. Clark 0. Wright, (3 P.) 20 67. [See, also, Will, III, (2.).1 413. And where a person has been deprived, by fraud, of an instrument belonging to him, he may show its contents by secondary evidence. Davis ®. Spooner, (3 P.) 20 284; Grimes 0. Kimball, (3 A.) 85 518. 414. One who has voluntarily destroyed a document, cannot testify in his own behalf as to its contents, unless it appears that it was not destroyed with an improper intent, as to which the presiding judge must decide. Oriental Bk. 0. Haskins, (3 Met) 44 332; Joannes 0. Bennett, (5 A.) 87 169; Stone 0. Sanborn, 104 319; Smith 0.. Holyoke, 112 517. 415. Secondary evidence is also admissible where the document is out of the Common- wealth. Topping 0. Bickford, (4 A ) 86 120; Binney Russell, 109 55. See, also, Amherst Bk. 0. Conkey, (4 Met ) 45 459. 416. On the trial of an indictment for threat- ening to accuse another of burning a building, with intent to defraud an insurer, it is not necessary to produce a written policy of insur- ance, if other evidence, tending to show that the building was insured, has been admitted without objection, and it does not necessarily appear therefrom that the insurance contract was in writing. Comm. 0. Goodwin, 122 19. . 4 } 7 - All d generally, a party cannot object that there is a writing which is better evidence, where oral testimony has been admitted, with- out specifying that objection. Niles 0. Patch, (13 G.) 79 254, Ad- ams v. O'Connor, 100 515; Hale Rice, 124 292. 418 Where a statute allows a fact to be proved by evidence of a particular kind, and the statute contains no words excluding other evidence, other evidence is admissible to prove the fact. Kendall 0. Kingston, 5 524, Green 0. Gill, 8 111; Comm. 0. Cutter, 8 279 419. Thus a discharge in insolvency may be proved by the certificate, as well as the record. Greene 0. Durfee, (6 C.) 60 362 420. And original papers are admissible, where a statute allows certified copies to be used. Brooks 0. Daniels, (22 P.) 39 498, Odiorne 0. Bacon, (6 C.) 60 185; Day 0. Moore, (13 G.) 79 522. 421. And oral evidence of posting notice of an executor's appointment is competent. Green 0. Gill, 8 111; Henry 0. Estey, (13 G.) 79 336; Estes 0. Wilkes, (16 G.) 82 363. 422. Upon the trial of an indictment, the government is not required, upon the defend- ant's offer and request to testify, to call him as a witness to prove his own signature. Comm. 0. Pratt, 137 98. C2.) Attesting witness. [As to attesting witness to a will, see Will, I, (2). As to an attested note, see Limitation of Action, IV, (l).l 423. A witnessed instrument can, in general, be proved only by the testimony of the subscrib- ing witness thereto, and this rule was not altered by the statute allowing a party to testify. Brigham v. Palmer, (3 A.) 85 450; Barry 0. Ryan, (4 G.) 70 523. 424. The rule is the same, although the in- strument is an acknowledged deed. Dudley v. Sumner, 5 438, Catlin 0. Ware, 9 218. 425. But where the attesting witness is, or if there are two or more, all of them are, dead, or without the process of the court, or incom- petent to testify, any other competent evidence is admissible. Dudley 0. Sumner, 5 438; Homer Wallis, 11 309; Valentine v. Piper, (22 P ) 39 85; Haynes 0. Rutter, (24 P.) 41 242; Amherst Bk. v. Root, (2 Met ) 43 522; Gelott 0. Goodspeed, (8 C ) 62 411; Packard 0. Dunsmore, (11 C.) 65 282. 426. But the mere fact that the grantor in the deed is described as residing in another state, is not sufficient. Tyng 0. Boston & M. Railroad, (12 C.) 66 277. 427. And if the attesting witness fails to prove the instrument, other evidence is compe- tent. Whitaker0. Salisbury, (15 P.) 32 534. 428. As to what testimony of the attesting witness will suffice, where he does not distinctly remember all the facts. Russell 0. Coffin, (8 P.) 25 143; Rob- inson 0. Brennan, 115 582. 476 EVIDENCE, V, (2), (3). 439. Where there are two or more attesting ■witnesses, it rests in the discretion of the judge, whether he shall require all who are competent and accessible to be produced, or whether the testimony of one will suffice. Burke ». Mfller, (7 0.) 61 547; White v. Wood, (8 C.) 62 413; Clark v. Hough- ton, (12 G.) 78 38. 430. SemMe, that the testimony of the attest- ing witness is not necessary, where the instru- ment is introduced collaterally or incidentally, in proceedings between persons not parties to it. Per Bigelow, J., in Comm. ■» Castles, (9G.) 75 121 431. Where one, by false and fraudulent rep- resentations induces another to excnange chat- tels for a parcel of land, of which he delivers an invalid deed, the deed is admissible in evidence, without proving its execution by the attesting witness. Skinner v. Brigham, 126 132. 432. So where the demandant, in a real ac- tion, relies upon a deed in the tenant's hands, wrongfully obtained and withheld. Davis v. Spooner, (3 P.) 20 284. 433. So where a party, on cross examination, admits that a deed, under which he claims title, is in his possession. McGregor v. Wait, (10 G.) 76 72. 434. An error, by admitting other evidence of an attested deed, is cured, if the objecting party afterwards calls the attesting witness. Comm. v. Castles, (9 G.) 75 121. 435. Where an office copy is competent, with- out producing the original deed, the deed is presumed to have been executed as certified, in presence of the attesting witnesses; and they need not be called. Eaton v. Campbell, (7 P.) 24 10; Hathaway v. Spooner, (9 P.) 26 23; Powers ji. Russell, (13 P.) 30 69; Gragg v. Learned, 109 167. (3.) Miscellaneous rulings as to suffici- ency of primary evidence. (See, also, ante, I, (2).l 436. The age of a party may be proved by his own testimony, or that of a relative, who has known him from childhood. Kellogg v. Kimball, 122 163; Hill v. Eldridge, 126 234. 437. And any person, who has observed an- other, may give an opinion as to whether he is an infant. Comm. •». O'Brien, 134 198. 438. A writ of possession, duly served and returned, is original evidence. Law ». fteson, (1 A.) 83 61. 439. Evidence of possession and acts of own- ership suffice to prove title to a vessel, without producing the register. Stearns v. Doe, (12 G.) 78 482. 440. And if she is registered in the name of one only, oral evidence is admissible to show that all the defendants are owners. Vinal v. Burrill, (16 P.) 33 401. 441. The name and place painted on her stern, as required by the act of congress may be proved orally, and show to what port she belongs. Stearns v. Doe, (12 G.) 78 482. 443. It is no objection to the competency of evidence, that it is given under such induce- ments, as would render it inadmissible against the witness, if he was on trial. Newhall v. Jenkins, (2 G.) 68 562. 443. A boundary line, between two towns may be proved by the testimony of one, who has run it while measuring his own land, with- out producing the records of the perambulations of the selectmen. Comm. ■». Heffron, 102 148. See, also, Freeman v. Kenney, (15 P.) 32 44' Putnam «. Bond, 100 58. 444. Evidence as to the condition of clothes is competent, without producing the articles. Comm. ». Pope, 103 440. 445. A notice that one arrested desired to take the poor debtor's oath, is proved by its produc- tion, in an action on the recognizance. Richardson v. Smith, (1 A.) 83 541. 446. That a person is an officer of a corpora- tion, may be proved by oral evidence of his acts, without producing the corporation records. American Ins. Co.«. Owen, (15 G.) 81 491. 447. The want of a license to sell liquor may be proved by the city clerk's record, without notice to produce the license. Briggs v. Rafferty, (14 G.) 80 525. 448. A newspaper article, purporting to be signed by a party, is admissible against him, after proof of his connection with the subject, and that he spoke to the editor about writing such an article, without the manuscript. And it is immaterial whether the manuscript was or was not in his handwriting, if he subsequently ratified it. Comm. v. Hildreth, (11 G.) 77 327. 449. The testimony of a bystander is admis- sible to prove the conditions of the sale of a chattel, against one claiming under the pur- chaser, who was not present at the sale. Blanchard v. Child, (7 G.) 73 155. 450. Whether the plaintiff, in a writ of error, had notice of the suit below, is a question to be proved or disproved by oral evidence. Morrison v. Underwood, (5 C.) 59 52. 451. In an action for fuel sold and delivered at various times, testimony of certain wharf- ingers, as to certain entries in their books, for fuel delivered to the defendant by the plaintiff s order, and of certain carmen, that by direction of the wharfingers, they took certain loads , ot fuel to the defendant, all the witnesses testify- ing generally to their acts, but none of them remembering the details, is competent, and not secondary evidence. . Chamberlain D.Carter, (19 P.) 36 188. See, also, Comm. v. James, (1 P.) 1* 375. 452. Notice of publication of an administra- tor's appointment maybe proved bythepro- duction of old newspapers containing it, witnoui evidence of their genuineness. Hudson v. Hulbert, (15 P.) 32 Hi- EVIDENCE, V, (3), (4). 477 453. Where a will authorizes the sale of real property by an executrix, for her support, on her procuring the consent of the other exceu- tors, oral evidence of their consent suffices. Roberts «. Whiting, 16 186. 454. Before the statute authorizing proof of marriage by general repute, cohabitation, etc., semble, that a marriage must have been proved by the record of the clergyman, or the witnesses present. . Comm. ii. Littlejohn, 15 163. 455. The statute allows the evidence to come from any person, who knows the facts, although not of the family. Knower «. Wesson, (13 Met.) 54 143. [See, further, as to proof of marriage, Husbahd and Wife, I, (l).l 456. The record of a town clerk, or a parish clerk, or, where no record is kept, or the statute does not require a record, oral evidence is suf- ficient to show that an oath required by law was taken. Bassett v. Marshall, 9 312; Welles «. Battelle, 11 477; Briggsfl. Murdock, (13 P.) 30 305; Pease v. Smith, (34 P.) 41 122; Howard ». Proctor, (7 G.) 73 128. 457. But where the statute requires a certifi- cate, such a certificate is the only evidence, and it can be made only by the statutory officer. Colburn v. Ellis, 5 427; Belchertown *. Dudley, (6 A.) 88 477. 458. The official character of a public officer may be proved, when the question is not directly upon his right to the office, by proving his of- ficial acts, and by such other evidence as shows that he is an officer de facto, without producing his commission, or any record of his appoint- ment or election. Comm. v. McCue, (16 G.) 82 226; Webber*. Davis, (5 A.) 87 393; Comm. aHolliston, 107 232. [See, also, OmCE ahd Opficer, I, (2).] 459. A witness may testify that interest is in- cluded in a note, without the production of the note. Clifton «. Litchfield, 106 34. 460. One seeking to justify an action for trespass, by the levy of an execution, must show a judgment as well as an execution. Ames v. Sturtevant, (2 A.) 84 583. 461. A recital in a deed conveying land to another, in connection with proof of a purchase by the grantor, at an administrator's sale, but without any evidence of the execution and loss of a deed, is not evidence of the grantor's title. Ives «. Ashley, 97 198. 462. Testimony as to marks upon property, labels, tags, and the like, is admissible without production of the articles themselves, or prov- ing the loss thereof. Comm. v. Hills, (10 C.) 64 530; Comm.o. Blood, (11 G.) 77 74; Comm. «. Morrell, 99 542. 463. So as to a U. S. revenue stamp. Comm. v. Powers, 116 337. 464. On the trial of a complaint for keeping a tenement for thti illegal sale of liquors, a wit ness for the government may testify that he saw a license from the United States, authoriz- ing the defendant to sell liquor, hanging upon the wall of the bar-room. Comm. v. Brown, 124 318. (4.) Secondary evidence. |As to certified copies of records and official docu- ments, see pott, VIII, (2); VIII, (3).] 465. Where a copy of a letter, purporting to have been sent to a party, is offered in evidence, the party offering the proof must first give evidence, tending to show that it was received by the former. Davis «. Mason, (4 P.) 21 156. 466. Testimony that the plaintiff delivered a letter for the defendant to his janitor, with di- rections to deliver it to the defendant; that the janitor took it to the defendant's place of busi- ness, and, not finding him in, left it with his clerk, who said that he would deliver it to the defendant on his return; if it satisfies the pre- siding judge that the defendant received the letter, entitles the plaintiff, after notice to pro- duce the letter; to offer secondary evidence of its contents. Dix v. Atkins, 128 43. See, also, Huntley ». Whittier, 105 391. 467. So as to a letter sent by mail, where the party afterwards spoke to the writer about its contents. Augur Steel Axe Co. v. Whittier, 117 451. [Upon the general subject of presumption of the receipt of a letter sent By mail, see, also, ante, IV, (9); and Bill op Exchange ahd Promissory Note, III, (3).l 468. Press copies of letters purporting to be written by a party, and found in his possession, are admissible against him, if they appear to be in his handwriting, and the originals cannot be produced. Comm. v. Jeffries, (7 A.) 89 548. See, also, Comm. ®. Eastman, (1 C.) 55 89. 469. If a party refuses to produce, upon notice, a document in his possession, and so compels the adverse party to resort to secondary evidence thereof, he cannot afterwards himself offer, either the paper or secondary evidence of the contents. Kingman v. Tirrell, (11 A.) 93 97; Doon ». Donaher, 113 151; Gage v. Campbell, 131 566. 470. It is no objection to the" admission of secondary evidence of the contents of a paper, that the witness testifies only to the substance. Clark 1). Houghton, (12 G.) 78 38. 471. Or that he has to refresh his recollection by memoranda made by him, while the paper was in his possession, without which he could not state the existence or contents of the paper. Morrison 1>. Chapin, 97 72. 472. But where the scrivener says that his mind is balanced, as which of two conditions a deed contained,- he cannot give his belief there- upon, founded upon his instructions from the grantor, or state what those instructions were. Hodges «. Hodges, (2 C.) 56 455. 4T8 EVIDENCE, V, (4), (5). 473. The contents of a lost -written agree- ment may be proved by extrinsic circumstan- tial evidence, where the evidence thereupon is contradictory. Bradbury » Dwight, (3 Met.) 44 31. 474. But not by the conversation of the par- ties, as to what agreement they proposed to make. Richardson v. Robbins, 124 105. 475. On a complaint under the mill act, de- scribing the land flowed as that conveyed to the complainant by a certain deed, which referred to other deeds for a description, a witness may testify that he knows what land those deeds conveyed, and that it was the land flowed, al- though they are not put in evidence. Hadley v Citizens' Savings Inst., 123 301. 476. Proof of the residence and acts here of a foreigner, as a master of coasting vessels, and that the records of shipping of the port, where he resided, have been destroyed, is not sufficient to go to the jury upon the question whether he was naturalized. Dennis v. Brewster, (7 G.) 73 351. 477. The rule that a copy of a copy is not ad- missible as secondary evidence, dees not apply to a certified copy of a recorded deed. Stetson v. Gulliver, (2 C ) 56 494 478 A copy of a press copy of a letter, sworn to be correct, is admissible as secondary evi- dence, without producing the press copy. Goodrich v. Weston, 102 362. 479. The attorney who made the original writ, may prove the contents of the notes de- clared upon, by a reference to the declaration which was made from the originals or copies. Jones fl. Fales, 5 101 480. Where, upon the trial of an indictment, an expert, called by the government, testifies that he has given the counsel for the govern- ment a written opinion, and the opinion is, upon request, handed to the defendant's counsel, the latter cannot produee it in evidence, but may use it as a basis of cross examination. Comm. v. Pomeroy, 117 143. (5.) Notice to produce, and effect thereof; [See. aJso, ante, V. (4).] 481. An instrument which is itself a notice, may be proved orally, without notice to pro- duce it. Eagle Bk. •». Chapin, (3 P.) 20 180' Quinley v. Atkins, (9 G.) 75 370. 482. An office copy of a deed is not admis- sible against a grantee, without notice to him to produce the original. Comm v Emery, (2 G.) 68 80- Bourne v Boston, (2 G.) 68 494; Dra per® Hatfield, 124 53. 483. In action to recover money paid for taxes on the defendant's real property, the convey- ance to him cannot be proved by oral testimony, without giving him notice to produce it. Brackett v. Evans, (1 C.) 55 79. 484. In an action against selectmen for refus- ing the plaintiff's vote, oral evidence that the plaintiff's name was upon the voting list, is in. admissible, without notice to produce it or proof that it is lost. Harris v. Whitcomb, (4 G.) 70 433 485. So of a bill of parcels between the par- ties. Blood v. Harrington, (8 P.) 25 552. 486. So of an account between the parties delivered by one to the other. And the original book of account, from which the former made it, is not in such a case admissible. Vinal ». Burrill, (16 P.) 33 401 487 . Where a copy is delivered, and the origi- nal is kept, the latter is not evidence without notice to produce the former. Comm. v. Parker, (2 C.) 56 218 488 Secondary evidence of the contents of any material paper, is admissible against one, who, having it in his possession, or under his control, fails to produce it at the trial, upon notice. Comm. v. Goldstein, 114 272 489. Notice to produce a letter is unnecessary, where the party testifies that he did not re- ceive it. Roberts v. Spencer, 123 397; Briggs ». Hervey, 130 186. 490. The notice is sufficient, if it is so framed as to leave no reasonable doubt what paper is meant, although it is erroneous in some import- ant particulars. Bogartu. Brown, (5 P.) 22 18: Bemis v. Charles, (1 Met.) 42 440. 491. An oral request, by one counsel to the other, at the beginning of the trial, to produce a bill of sale, may be deemed sufficient, in the discretion of the pr siding judge. Bourne v. Buffington, 125 481. 492. Notice to the attorney of record for a corporation to produce its books at the trial, is sufficient to admit secondary evidence of their contents. Thayer «. Middlesex Ins. Co., (10 P.) 27 326; Narragansett Bk. v. Atlantic 8. Co., (3 Met.) 44 282. 493. Counsel's agreement to produce a note is complied with, without putting it in evidence. White «. Harlow, (5 G.) 71 463. 494 A paper produced upon notice, and in- spected by the adverse party, is evidence for the party producing it, although the party call- ing for it refuses to use it. Comm. v. Davidson, (1 C.) 55 *>; Clark v. Fletcher, (1 A.) 83 53, Long ». Drew, 1 14 77. 495. But not unless it is the very documenl Reed v. Anderson, (12 C.) 66 480 496. And oral evidence is competent, as tc whether it is the same, and at the same time tc prove the contents of the one called for. Gilmore «. Whitcher, (6 A.) »» lla 497 The party calling for the paper is nol precluded from claiming the benefit of so mucn as makes in his favor, and rebutting me re mainder. , ._ 1K1 Raymond v. Nye, (5 Met.) 46 151. EVIDENCE, V, (5); VI, (1). 479 498 Proof of corporate acts, and of copies of the certificates filed in the office of the secretary of the Commonwealth, and of the town clerk, are competent against a corporation, to prove its organization, upon its failure to produce its records, upon notice. Dooley v. Cheshire Glass Co., (15 G.) 81" 494; Chamberlin v. Huguenot M. Co., 118 532. 499. Office copies of such certificates, and of a conveyance of land, are competent in a like case, although the origuials have passed into the hands of assignees m bankruptcy. Chamberlin v. Hugenot M. Co., 118 532. 500. If the defendant, who has obtained pos session of the note upon which he is sued, re- fuses to produce it, a witness acquainted with his handwriting, and who has seen the note, may give his opinion that it is genuine. Prescott v. Ward, (10 A.) 92 203. 501. In an action on an arbitration bond, if the defendant, having it, refuses to produce it upon notice, the "plaintiff may prove its contents by the counter bond in his possession, and oral 6Vld.6D.C6 Loring «. Whittemore, (13 G.) 79 228. 502. Where the defendant fails to produce, upon notice, a letter written to him by the plain- tiff, a copy may be proved by the testimony of several witnesses, each of whom took a distinct share in the process of writing, copying, and delivering it. Dana «. Kemble, (19 P.) 36 112. 503. And the testimony of one who has seen an original letter, sent by the plaintiff to the de- fendant, that it was of the same import as the copy produced by the plaintiff, will entitle the latter to read the copy in evidence. Dana v. Kemble, (19 P.) 36 112. VI. Admissions ; Declarations ; Conces- sions. |As to dying declarations, see ante, I, (6). I (1.) General principles. 504. The declarations of the treasurer of a corporation defendant cannot be given in evi- dence by the plaintiff, to prove performance of a condition; but a printed circular, prepared in part by the plaintiff, and in part by a director of the defendant, and distributed by the de- lendant, is evidence. J ri PP ». New Metallic P Co., 137 505. The letters, etc., of a defendant In a criminal cause, tending to show that he com- muted the crime charged, are evidence against mm, although they also tend to prove the com- mission of other crimes Comm. v. Blood, 141 571. ™^' A „ OTmmui »cation by a third person to a Krf °i What the other said > is admissible as part of the res gestae Walker v. Plynn, 130 151. J52L A j d , in S? neral . th e rule is that a third persons declaration, which accompanies and gives character to an act, which is itself com- petent evidence, is admissible as part of the res gestm ; otherwise it is not admissible . Merrill v. Sawyer, (8 P.) 25 397; O'Kelly e. O'Kelly, (8 Met.) 49 436; Kingsley v. Slack, (5 C.) 59 585; Cush- ing v. Willard, (11 G.) 77 247; Akerss. Demond, 103 318; Short Mountain Co v. Hardy, 114 197; Wright u Boston, 126 161. 508. If there is evidence that several persons are together for a common illegal enterprise, the declarations of one, made at the time, are admissible upon the trial of an indictment against the other, as part of the res gestm. Comm. •». Ratcliffe, 130 36. [Seepost,\I (4).l 509. Reasons given by a third person for doing an act, which lays the foundation of an action, are not part of the res gestm. Johnson v. Sherwin, (3 G.) 69 374; Nutting v. Page, (4 G.) 70 581 ; Wesson v. Washburn I. Co., (13 A.) 95 95. 510. Letters by a party or between the parties before and after a contract, may be so con- nected with it as to become part ef the res gestm. New England Ins. Co. v. De Wolf, (8 P.) 25 56; Thorndike 11. Boston, (1 Met.) 42 242. 511. A party's instructions to his agent or servant are not part of the res gestm. Nutting i). Page, (4 G.) 70 581. See, however, Simmons v. New Bedford, etc., Co , 100 34. 512. Declarations of a party or of a third person, made after the occurrence in question, are generally not part of the res gestm. Comm. v. Roberts, 108 296. See also, Lane v. Bryant, (9 G.) 75 245; Hubbard 11. Barker, (1 A.) 83 89; Comm. v. James, 99 438. 513. In an action against selectmen for re- fusing the plaintiff's vote, his declarations to them, before offering his vote, as to his resi- dence, etc., are admissible as part of the res ' Lombard *. Oliver, (7 A.) 89 155. 514. Where, at the time of a sale of land, a plan was exhibited, showing a street, the grantor's declaration at the time of the sale, that he intended to open a street of less width, and would not be bound by the plan, is admis- sible in his favor as part of the res gestm. Walker v Worcester, (6 G.) 72 548. 515. Where the owner of land, standing thereupon, warns off one claiming an easement by adverse possession, this is evidence of the interruption of the easement. Powell i). Bagg, (8 G.) 74 441. 516. Where the question arises' upon an oral contract, made with A by B, in behalf of a firm of which B is a member, a letter written by B to his partner, after the contract was made, and stating its terms, is not admissible in behalf of the firm. Hodgkins v. Chappell, 128 197 517. The admission of one defendant Is evi- dence in a joint action against two, vlere the only question is as to that defendant's liability. Brannon v. Hursell, 112 63. 480 EVIDENCE, VI, (1). 518. Where a party puts in evidence the ad- verse party's declaration, he is not concluded by the whole of it, hut may show that so much of it as bears against himself was untrue. James v. Cummings, 132 78. See, also, Field v. Hitchcock, (17 P.) 34 182. 519. In general, the declarations and admis- sions of a party, not part of the res gestae, are always admissible in evidence against himself, but not in his favor. Davis i). Spooner, (3 P.) 20 284; Bil- lings*. Billings, (11 P.) 28 461;Simonds v. Heard, (23 P.) 40 120; Haynes v. Rutter, (24 P.) 41 242; Dole «. Young, (24 P.) 41 250; Comm. «. Kimball, (24 P.) 41 366; Thorndike v. Boston, (1 Met.) 42 242; Kilburn «. Bennett, (3 Met.) 44 199; Comm. Ins. Co. v. Crane, (6 Met.) 47 64; Parker v. Hill, (8 Met.) 49 447; Salem t>. Lynn, (13 Met.) 54 544; Kellenberger v. Sturtevant, (7 C.) 61 465; Lund v. Tyngsborough, (9 C.) 63 36; Cole v. Cheshire, (1 G.) 67 441; Posters. Thompson, (5 G.) 71 453; Mason v. Lothrop, (7 G.) 73 354; Me- Intyre v Park, (11 G.) 77 102; Morgan v. Morse, (13 G.) 79 150; Warner v. Brooks, (14 G.) 80 107; Davis v. Whit- head, (1 A.) 83 276; Stetson n. How- land, (2 A.) 84 591; Townsend Bk. v. Whitney, (3 A.) 85 454; Hackett v. King, (8 A.) 90 144; Monson®. Palmer, (8 A.) 90 551; Leach v. Wilbur, (9 A.) 91 212; Copeland v. Taylor, 99 613; Blake n. Damon, 103 199; Crowell v. Porter, 106 80; Snow v. Paine, 114 520; Wright v. Boston, 126 161; Abbott n. Andrews, 130 145; Comm. v. Nefus, 135 533. 520. A paper signed by him with his mark is thus admissible, although he swears that he cannot read, and it was not read to him, the jury being the judges of its weight. Foye*. Patch, 132 105. 521. A memorandum in his handwriting, not signed by him, is admissible. Dickinson v. Bobbins, (12 P.) 29 74. 522 An admission made under duress is not evidence against the party making it. Tilley «. Damon, (11 C.) 65 247. 523. An admission, although evidence, is not conclusive. Hall v. Huse, lO 39; Salem Bk. v. Gloucester Bk., 17 1; Knight*. N. E. Worsted Co., (2 C.) 56 271. 524. The admissions of executors and other trustees are competent evidence against them, in actions by or against them in their represent- ative character. Emerson *.• Thompson, 16 429; At- kins n. Sanger, (1 P.) 18 192; Hill v. Buckminster, (5 P.) 22 391;Faunce«. Gray, (21 P.) 38 243; Heywood v. Hey- wood, (10 A.) 92 105; Phillips n. Mid- dlesex, 127 262. 525. The rule allowing admissions is not affected by the fact that they relate to matters, which must be contained in a writing, deed, or record. Smith v. Palmer, (6 C.) 60 513; Loomis v. Wadhams, (8 G.) 74 557. 526. If one party uses in evidence the declara- tion of the other, the latter is entitled to the benefit of the whole; but the other party mav disprove so much as makes against him Whitwell v. Wyer, 11 6; Raymond e. Nye, (5 Met.) 46 151; O'Brien « Cheney, (5 C.) 59 148; Washington Co' Ins. Co. ■». Dawes, (6 G.) 72 376. 527. But the party may give in evidence only part of a conversation; in which case the other party may introduce so much of the remainder as relates to the same subject, but no more. Comm. 1>. Keyes, ^11 G.) 77 323- Comm. ■». Clark, (14 G.) 80 367* Comm. ■». Goddard, (14 G.) 80 402* Shaw v. Greene, (14 A.) 96 206; Par- ley v. Rodocanachi, 100 427; Comm. ». Vosburg, 112 419; Perry «.. Breed 117 155. 528. So, if a party calls out the fact that a conversation was held, and states that he shall rely upon it, the adverse party may prove what was said. Clark ». Fletcher, (1 A.) 83 53. 529. But merely drawing out the fact that there was a conversation, does not entitle the other party to put it in. Perlmutter v. Highland St. Railway, 121 497. 530. Drawing out the existence of a docu- ment on cross examination, does not authorize' the adverse party to offer the document in evi- dence, if it is not competent evidence perse. Hathaway v. Evans, 113 264. 531. A subsequent conversation is not deemed a part of the original conversation, within the rule, although the parties agreed to meet again, when the latter terminated. Adam v. Eames, 107 275. 532. The rule as to conversations applies to letters and other papers, forming part of one transaction, including a letter and the answer; but the party producing one letter is not bound to produce the others. Ashley v. Wolcott, (3 G.) 69 571; Trischet v. Hamilton Ins. Co., (14 G.) 80 456; Riehmondville V. Bern. «. Ham- ilton Ins. Co., (14 G.) 80 459; Central Bridge v. Lowell, (15 G.) 81 106; Lynde v. McGregor, (13 A.) 95 172; Crary v. Pollard, (14 A.) 96 284; Stone «. Sanborn, 104 319; Wiggin e. Bos- ton & A. Railroad, 120 201. 533. Where the bodily or mental suffering, either of a party or of a stranger, is properly the subject of evidence, his expressions .of emotion or pain, either before or after the date of the writ, are competent evidence: and it is for the jury to say whether they were real or feigned. „,, Bacon «. Charlton, (7 C.) 61 581; Jacobs v. Whitcomb, (10 C.) 64 255; Palmer v. Crook, (7 G.) 73 418; Bar- ber v. Merriam, (11 A.) 93 822; Fay «• Harlan, 128 244; Hatch v. Fuller, 131 574; Comm. v. Fenno, lrf* 217. 534. But where they were made long after the injury, they maybe excluded, in the discre- tion of the presiding judge. Leonard v. Field, 136 125. EVIDENCE, VI, (1). 481 535 And the statement of a patient to his i nhysician, of the cause of the injury from which he is suffering, or other matter extrinsic to the suffering itself, is not competent. Chapin v. Marlborough, (9 G.) 75 244- Emerson 0. Lowell G. L. Co., (6 A.) 88 146; Bowen t>. Reed, 103 46; Morrissey 0. Ingham, 111 63; Boosa v. Boston Loan Co., 132 439; Mat- thews e. Westborough, 134 555. 536. And the physician's own declarations are inadmissible, although he is dead. Lund v. Tyngsborough, (9 C.) 63 36. 537. So a person's statement to a witness, not an expert, as to what a physician said to him about his health, is inadmissible. Ashland 0. Marlborough, 99 47. 538. A party may, by his own testimony, or any other evidence, rebut an inference sought to be drawn from his admission. ( Yaeger Milling Co. v. Brown, 128 171. 539. And where the evidence against him is the possession of an article, or the doing of an act, from which guilt is inferred, he may show his own or a third person's declarations, at the time of procuring the article or doing the act, tending to rebut such inference. Comm. v. O'Connor, (11 G.) 77 94; Earle «. Earle, (11 A.) 93 1; Comm. v. Austin, 97 595; Spoorier v. Holmes, 102 503; Comm. 0. Rowe, 105 590. 540. The declaration of a party or of a third person, in the nature of a verbal act, accom- panying a delivery of goods, a payment of money, or the like, is evidence of title in, or purchase or payment, to or by himself or another, as part of the res gesta. Milford v. Bellingham, 16 108; Pool ». Bridges, (4 P.) 21 378; Allen «. Duncan, (11 P.) 28 308; Boyden v. Moore, (11 P.) 28 362; Blood v. Bide- out, (13 Met.) 54 237; Gay 0. Gay, (5 A.) 87 157; Stiles 0. Allen, (5 A.) 87 320; Elliott «. Stoddard, 98 145; Milli- ken v. Thorndike, 103 382; Meyer v. Reichardt, 112 108; Smith 0. Collins, 115 388; Hall 0. Holden, 116 172; Place v. Gould, 123 347. 541. For cases wherein the declaration of the person in possession of goods, was excluded, as not being part of the res gestm, see Coit 0. Howd, (1 G.) 67 547; Brown 0. Mooers, (6 G.) 72 451; McGough 0. Wellington, (4 A.) 86 502. .542. It is not necessary, in order to render a paper, entry, etc., evidence, as an admission of the person making it, that the adverse party should have known of its existence when it was made. Bell 0. Smith 99 617. 543. Affidavits, sworn pleadings in equity, or other documents in legal proceedings, which are signed by the party himself, are admissible against the party in another action. Williams 0. Cheney, (3 G.) 69 215; Central Bridge 0. Lowell, (15 G.) 81 106; Comm. 0. Starr, (4 A.) 86 301; Elliott 0. Hayden, 104 180; Wood- ward 0. Leavitt, . 107 453; Brown 0. Jewett, 120 215. Vol. 1—61 i But not where oral testimony of the admis- sion itself would not be evidence. Hope Ins. Co. 0. Chapman, (6 G.) 72 75. (As to unsworn pleadings, etc, in another action, seejww<,VI,(5.)l 544. The pleadings in the action upon trial cannot be used or commented upon as evidence. Brooks 0. Wright, (13 A.) 95 72; Walcott 0. Kimball, (13 A.) 95 460; Lyons 0. Ward, 124 364; Blackington 0. Johnson, 126 21. 545. A pleading or other paper in a cause, which has been rejected by the court, or with- drawn, is not evidence as an admission. Baldwin 0. Gregg, (13 Met.) 54 253; Comm. 0. Lannan, (13 A.) 95 563. 546. So where a judgment entered thereon has been vacated, or adjudged to be void by a decree in equity. Currier 0. Esty, 116 577. 547. The testimony of », party in another cause, or his statements at a former trial, are evidence against him, whether given orally or by deposition. Judd 0. Gibbs, (3 G.) 69 539; Lynde v. McGregor, (13 A.) 95 182; Goodrich 0. Wilson, 1 19 429; Brown 0. Jewett, 120 215; Comm. 0. Beynolds, 122 454. 548. And the testimony of a witness before the fire inquest is evidence against him, on an indictment for setting the fire, although he was not cautioned against criminating himself. Comm. 0. King, (8 G.) 74 501; Comm. 0. Bradford, 126 42. 549. An admission is not evidence, where the matter admitted would not be competent; thus, that the defendant, an indorser of a note, said that the maker had told him that payment had been demanded. Tower 0. Durell, 9 332. 550. Or where the admission was as to the legal effect of a contract, or otherwise involved a question of law. Andover F. Schools 0. Flint, (13 Met.) 54 539; Clark 0. Burt, (4 C.) 58 396; Bigelow 0. Collamore, (5 C.) 59 226; Cartwright 0. Gardner, (5 C.) 59 273. 551. So as to the meaning of an award. Goodell 0. Smith, (9 C.) 63 592. 552. Or of the terms of a lease. Parker 0. Parker, 103 167. 553. A telegram is admissible against the party by whom it purports to have been sent, if he is properly connected with it by other evi- deuce "' Comm. v. Jeffries, (7 A.) 89 548. 554. So in his favor, if part of the res gestm. Comm. 0. Jeffries, (7 A ) 89 548. 555. A letter addressed to a corporation, and read at a stockholders' meeting, where it was laid on the table, is not evidence against the corporation. Bobinson 0. Fitchburg, etc., B. B., (7 G.) 73 92. 556. A letter proved to be genuine, is admis- sible in favor of or against the person to or by 482 EVIDENCE, VI, (1), (2). whom it is written, in a case where His oral declaration, or an oral declaration to him, would be evidence. Comm. v. Eastman, (1 C.) 55 189; Dutton ®. Woodman, (9 C.) 63 255. See, also, Davis ®. Mason, (4 P.) 21 156. 557. Semble, that an answer to a letter, proved to be sent, may be read, without proof of the handwriting. Connecticut 9. Bradish, 14 296. 558. A party cannot read in evidence an un- answered letter, written by himself, even al- though it is in answer to one from the adverse party, for the purpose of proving the matters therein stated. Fearing v. Kimball, (4 A,) 86 125; Ford «. Ford, 104 198; Atwater v. Clancy, 107 369. ISee, further, as to letters, ante, IV, (9); V 5 li);pott, VI, (2).] 559. A party, whose declarations are put in evidence by the adverse party, is entitled to the benefit of them upon the same or a different point. "Washington Co. Ins. Co. v. Dawes, (6G.) 72 376. [See, also, ante, art. 526, 627.] 560. A party's own acts or declarations, made without the privity of the other -party, are not admissible in his favor, unless they come within one of the recognized exceptions to the rule. Jacobs v. Putnam, (4 P) 21 108; Whitney v. Bigelow, (4 P.) 21 110; Carter v. Gregory, (8 P.) 25 165; Jacobs v. Whitcomb, (10 C.) 64 255; Judd v. Gibbs, (3 G.) 69 539, Blood 9. Sanderson, (4 G.) 70 586; Lucas «. Trumbull, (15 G.) 81 306; Marcy v Barnes, (16 G.) 82 161; Carlton 9. Pierce, (1 A ) 83 26; Comm. 9. Cooper, (5 A.) 87 495, Taft ®. Dickinson, (6 A-) 88 553; Prescott v. Ward, (10 A.) 92 203; Baxter 9. Knowles, (12 A.) 94 114; Litchfield ® Merritt, 102 520; Comm. * Williams, 105 62; Draper 9 Hal- loran, 107 380, Carrigg®. Oaks, HO 144; Wilcox v. Waterman, 113 296; Somers 9. Wright, 114 171; Nourse ®. Nourse, 116 101; Comm. v. Sturti- vant, 117 122; Mair «. Bassett, 117 356; Comm. v. Scott, 123 222; Walker 9. Moors, 125 352; Whitney *. Hough- ton, 125 451; Comm.®. Blood, 141 571. 561. So where, in answer to the declaration, the adverse party denied its truth, or said that he was ignorant of its truth. Heywood®. Heywood, (10 A.) 92 105. 562 So where the defendant was not in a situation to answer, as where the declaration was made in a sermon preached in church by tb.3 plaintiff. Johnson ®. Trinity Church, (11 A.) 93 123. 563. A defendant in a criminal cause cannot show that he refused to fly, when advised that he was suspected. Comm. v. Hersey (2 A.) 84 173, An- drews ®. Frye, 104 234. ISee, also, post, arts. 572, et aeg.} 564. It two are jointly indicted, the acts of one are admissible if the jury are instructed that they are not evidence against the other Comm. v. Blood, 141 571. 565. A witness may narrate in English with- out the aid of an interpreter, an admission made in a foreign tongue by a party, although the defendant in a criminal cause. Comm. 9, Kepper, 114 278. 566. A witness, who cannot repeat (he words may state the substance of an admission. ' Kittredge® Bussell, 114 67. 567. On the trial of an indictment for adul- tery, a witness may testify that he heard one of the defendants admit the adultery to the other although he did not hear the rest of the con- versation. Comm. v. Pitsinger, 110 101 |As to the admissibility of one?s own acta and declarations to show intent and motive, see poet IX, (4). As to confessions, etc., in criminal causes' see post, VI, (6).l ' (2.) Admissions from acts, omissions, silence, or failure to produce evidence, 568. Upon the trial of an indictment, letters written by the prisoner, in a disguised hand, for the purpose of casting suspicion upon an- other, are evidence against him. Comm. 9. Webster, (5 C.) 59 295. 569. So are all attempts, upon his part, to to suppress evidence, and. to suggest false and deceptive explanations. Comm, ® Webster, (5 C.) 59 295. 570. Conduct, as well as declarations of the plaintiff, before and after a lease, are evidence upon the question whether the property was leased for an illegal purpose. Sherman e. Wilder, 106 537. 571. A person's conduct, when a bill is pre- sented to him, may be such as to warrant the conclusion that it is correct, although he does not admit its correctness. Hayes® Kelley, 116 300. 572. Flight, because one is suspected of a crime, is a circumstance to be considered by the jury, upon trial of the indictment; and fail- ure of the defendant to explain his flight, will warrant the inference that it was for that reason; but the entire question is for the jury. Comm. 9. Annis, (15 G.) 81 197. 573. So of concealment. Comm. ». Carter, 108 17; Comm. «. Tolliver, 119 312. 574. So of the assumption of a disguised gait and manner, while walking in the streets. Comm. e. ToUiver, 119 312. 575. But a defendant cannot show, in his own defence, that he refused to fly. Comm. 9. Hersey, (2 A.) 84 173; An- drews 9. Frye, 104 234. 576. As to concealment of a chattel in trover, see Beecher ®. Denniston, (13 G.) 79 354. 577 Failure to demand payment of, or other- wise make any claim for, the demand in suit, when other matters between the parties were EVIDENCE, VI, (2). 483 settled or the circumstances were otherwise such that he would naturally do so, is evidence against the plaintiff, for the consideration of the im ' Miller v. Stevens, (13 G.) 79 282; Clark v. Brown, 120 206. 578. Even although this was done, while he was testifying in another cause. Parsons i>. Martin, (11 G.) 77 111. 579. And where a party nas, on other occa- sions, done acts similar to the one in question, or recognized claims resting upon the same foundation, this is evidence against him. Moody fl. Tenney, (3 A.) 85 327; El- liott v. Hayden, 104 180, Readman i>. Conway, 126 374. |See, also, ante, I, (3).l 580. But in an action against an attorney, in- volving the question of a third person's evi- dence, the plaintiff cannot show that the de- fendant, as that person's attorney, did not .file a plea in abatement in another action, wherein the writ described him as a resident of the place in question. Veazie v. Somerby, (5 A.) 87 280. 581. The conduct of a party in treating land as his own, is evidence upon the question whether a bargain, for the salj thereof to him, has been carried out. Furnas v Durgin, 119 500. 582. On the trial of a petition to enforce a mechanic's lien, the respondent, a subsequent purchaser, may be asked, if he did not refuse to pay for the property, because of the lien. Gouldingfl, Smith, 114 487. 583. A party's attempt to bribe a juror at a former trial, is evidence against liim. Hastings v. Stetson, 130 76. 584. So that he said that "he knew h«w to play it on the judge." Byerson v. Abington, 102 526. 585. So that he attempted to suborn a wit- ness. ; — v. Bowker, (5 A.) 87 449; Comm. % Cooper, (5 A.) 87 495. 586. And he cannot prove, in reply, that the selectmen of his town, after investigation, as- sured him that they were satisfied of his inno- cence. Comm. •». Cooper, (5 A.) 87 495. 587. Evidence that the defendant, immedi- ately after the accruing of the cause of action for a tort, made an assignment of all his prop- erty, is competent for the consideration of the 3«ry. Banfield v. Whipple, (10 A.) 92 27; Stratton v. Farwell, (10 A.) 92 31, note. _ 588. Where the accused, on the trial of an indictment, can show, if such is the truth, that suspicious circumstances, proved against him, can be accounted for consistently with his inno- cence and he fails to do so. the jury may infer toat the proof would sustain, instead of rebut- ting, the charge. Comm v. Webster, (5 C.) 59 295. iJ^L 2 ^' K a ? rimina l cause, no inference nmtcf . defendant can be drawn from his omission to offer himself as a witness. Comm. v. Harlow, 110 411; Comm. v. Maloney, 113 211; Comm. v. Nichols, 114 285; Comm. v. Scott, 123 239; Comm. v. Hanley, 140 457. 690. The rale is otherwise in a civil cause; and the jury may properly draw inferences from the failure of the party to testify in his own behalf. Whitney «. Bayley, (4 A.) 86 173. See, also, Cheney v.Gleason, 125 166. 591. In either a civil or a criminal cause, if the party voluntarily offers himself as a witness, his refusal to answer a question, on the ground that his answer might criminate him, is compe- tent evidence against him, where it would not be against an ordinary witness. Andrews ». Frye, 104 234; Comm. v. Nichols, 1 14 285. 592. A party's failure to testify to matters within his knowledge, to explain or control adverse testimony, is a proper subject for con- sideration, either in equity or at law. McDonough v. O'Niel, 113 92; Lynch ». Peabody, 137 92; Patton v. Bell, 141 197. 593. So where it appears that certain books, in the possession or under the control of a party, contain matters material to the issue, the failure of the party to produce the books, is a proper subject for argument to and considera- tion by the jury Eldridge v. Hawley, 115 410; Hunts- man ». Nichols, 116 521. 594. And generally, the failure of a party to offer evidence, which it is in his power to offer, if a fact is as he claims, may be considered by the jury. Sturtevant «. Wallack, 141 119; Patton v. Bell, 141 197. 595. In a civil or criminal cause, the omis- sion of a party to call, as a witness, a person who could explain adverse testimony, if it is capable of explanation, may be treated as an admission that it is not capable of such expla- nation; if the witness is competent and within reach, but not otherwise. Comm. v. Clark, (14 G.) 80 367; Backus d. Spauldmg, 129 234. See, also, Reynolds v. Sweetser, (15 G.) 8l 78; Whitney v. Bayley, (4 A.) 86 173; Smith v. Whitman, (6 A.) 88 562; Woodward ». Leavitt, 107 453; Murphy ■b. Brooks, 109 202; Comm. v. Costley, 118 1; Comm. «. Costello, 119 214. And in a criminal cause it is not the duty of the government, rather than of the defendant, to call such a witness. Comm. v. Haskell, 140 128. 596. So where a defendant, in a criminal cause, testifies in his own. behalf to matters, which might be corroborated by others, if true, and produces no corroborating witness, the jury may take that fact into consideration. Comm. «. Cummings, 121 63. 597. An admission by a party may be in- ferred from his silence, where a statement is made to him by the adverse party, or a third person, if he heard the statement, and if it was of such a character in itself, or derives such a character from the surrounding circumstances, as to call for a reply, but not otherwise. The 484: EVIDENCE, VI, (2), (3). question whether he heard the statement, and the weight of the evidence, are for the jury. Hildreth v. Martin, (3 A,) 85 371; Hayes v. Kelley, 116 300; Comm. ». Brailey, 134 527. See, also, Comm. « Call, (21 P.) 38 515; Earle v. Reed, (10 Met.) 51 387; Comm. v Harvey, (1 G.) 67 487; Tufts «. Charlestown, (4 G.) 70 537; Comm. ■». Galavan, (9 A.) 91 271; Woodward e. Leavitt, 107 453; Hall v. Holden, 116 172; Mallen v. Boynton, 132 443; Folsom v. Grant, 136 493. 598. An admission from silence is to be re- ceived with great caution, especially where the statement is made by a stranger. There are many cases, where a third person's intervention may properly be deemed unnecessary, and his statements immaterial and impertinent. To such, no reply need be made, and no infer- ence can be drawn from the fact that they are received in silence. Larry v. Sherburne, (2 A.) 84 34. See, also, Comm. v. Kenney, (12 Met.) 53 235; McGregor ®. "Wait, (10 G.) 76 72; Comm. v. "Walker, (13 A.) 95 570; Comm. v. McDermott, 123 440; Drury «. Hervey, 126 519; "Whitney v. Houghton, 127 527. 599. As to a letter, unanswered, see Percy v. Bibber, 134 404. 600. Evidence of admission from silence can- not be contradicted, by showing that the third person subsequently made a different declara- tion, although he is dead. Boston & W. R. R. t>. Dana, (1 G.) 67 83. 601. An irrelevant answer, or a remark upon another subject, has the same effect as silence. Comm. ii. Brown, 121 69. 602. Testimony that after the death of the alleged maker of a note in suit, the witness presented it to his executor for payment, and that the latter made no objection to the genu- inneness of the signature, but the witness could not state what reason he gave for not paying it, is not sufficient to prove that the signature is genuine. Filley v. Angell, 102 67. 603. Where it appears that a pass book, kept by the plaintiff, and containing his statement of the account between che parties, had been in the possession of the defendant, and was shown to him when the note in suit was given in settlement of the balance appearing to be due thereupon, the book is evidence against the de- fendant, and the whole transaction is in the nature of an admission that the goods were properly charged to him. Folsom «. Grant, 136 493. (3.) Former owner of property. [As to declarations of former deceased owners of lands, see ante, I, (1); and Boundary Lds-e, I, (2)."] 604. Evidence of acts or declarations of a testator, subsequent to the execution of a will, are evidence of the state of the testator's mind, on the issues of fraud and undue influence, if they afford a reasonable inference of a con- dition of mind sufficiently permanent, to have- existed when the will was executed; but not otherwise. Woodbury «. Obear, (7 G.) 73 457. Shailer v. Bumstead, 99 112; Davis t' Davis, 123 590; May v. Bradlee 127 414; Potter®. Baldwin, 133 427;'Comm v. Brayman, 136 438. T See further on this subject, Will, I, $)j 605. The acts and deslarations of a grantor before the conveyance, tending to show fraud in the conveyance, are admissible against his' grantee, and those deriving tide under him Bridge ». Eggleston, 14 245, Davis v. Spooner, (3 P.) 20 284; Foster « Hall, (12 P.) 29 89; Chase e. Chase] 105 385. 606. And acts and declarations of a former owner of land, tending to qualify or disparage his title, or to show boundaries of, or an ease- ment upon, his land, are admissible against his grantee, and those deriving title under him. Hyde v. Middlesex, (2 G.) 68 267; Hingham v. So. Scituate, (7 G.) 73 229- Tyler v. Mather, (9 G.) 75 177; Mes. v. Patch, (13 G.) 79 254; Osgood v. Coates, (1 A.) 83 77; Blake v. Everett, (1 A.) 83 248; Chapman v. Edmands. (3 A.) 85 512; Pickering v. Reynolds, 119 111. ■607. And evidence of declarations of a grantor, as to his intentions concerning the disposition of the property, made while he was of sound mind, are evidence upon an issue of unsound- ness of mind and undue influence, especially where the instrument in question was a deed of gift. Howe v. Howe, 99 88. 608. But declarations of a cestui que trust ait inadmissible against the trustee. Pope v. Devereux, (5 G.) 71 409. 609. But the declarations cf a former owner of land are not evidence for any purpose against his grantee, or those claimingunderMm, if they were made after he had parted with the title,. and this whether he is alive or dead. Bartlet «. Delprat, 4 702; Clarke v. Waite, 12 439; Howard *. Veazie, (3. G.) 69 233; Hingham v. So. Scituate, (7 G.) 73 229; Aldrich «. Earle, (13 G.) 79 578; Gates t>. Mowry, (15 G.) 81 564; Taylor «. Robinson, (2 A.) 84 562;. Winchester ». Charter, 97 140; Hoi- brook v. Holbrook, 113 74. 610. So where they were made before he ac- quired title. Tyler v. Mather, (9 G.) 75 177; Noyes. B.Morrill, 108 396; Lawrence v. Boston, 119 126. 611. So where they were made after he be- came legally bound to convey. Kingsford «. Hood, 105 495. 612. The declarations of the grantor, while he was carrying the deed to the register's office to be recorded, are inadmissible against the grantee. Alexander «. Gould, 1 165. 613 So where a deed was executed by a man and his wife, to a third person, who immedia- tely conveyed to the wife, the third persons declaration, made after the[deeds were executed,. EVIDENCE, VI, (3). 485 but before they were delivered, are inadmis- sible to show fraud as against the husband's creditors. Stockwell «. Blarney, 129 312. 614. In trespass qua/re clcmwm, the declara- tion of one who formerly occupied the land under a bond for a deed from the defendant, that he did not own the land, is inadmissible. Niles v. Patch, (13 G.) 79 254 615. And the declaration of a tenant for life is inadmissible against the remainderman. McGregor «. Wait, (10 G.) 76 72. 616 So is a wife's against her husband. McGregor v. Wait, (10 G.) 76 72. 617. The declarations and acts of a land owner, while acting as a commissioner to divide adjoining land, as to the existence of an ease- ment in favor of such land on his own land, is admissible against his heirs. Plimpton v. Chamberlain, (4 G.) 70 320. 618. Statements as to title or description in a deed, referred to in another deed, are admis- sible against one claiming under the latter Clark v. Faunce, (4 P.) 21 245; Brown e. Stone, (10 G.) 76 61; Hale «. Silloway, (1 A.) 83 21. 019. Declarations of a deceased tenant in common, that he had made a division with his co-tenant, and had received a deed from the latter, are admissible against his heirs to show that he had given a deed. White v. Loring, (24 P.) 41 319. 620. So is the declaration of one, under whom both parties claim, to prove a lost deed. Bosworth*. Sturtevant, (2C.) 56 392. 621. The declaration of one who made a deed, and delivered it to two of three grantees, by whom it was retained, but not recorded, and then subsequently delivered to the grantor, who destroyed it, is admissible after his death, against his heirs or devisees, to prove those facts. Hodges v. Hodges, (2 C.) 56 455. 622. Evidence of the declarations of a person in possession is admissible, to show that it was or was not adverse, as against those claiming under him, but not after his possession has ceased. Church v. Burghardt, (8 P.) 25 327; Brattle Sq. Church v. Bullard, (2 Met.) 43 363; Stearns v. Hendersass, (9 C.) 63 497. 6^3. In partition, evidence is inadmissible, that the guardian of the grantor of the peti- tioner formerly presented a petition, for leave to sell his ward's interest, describing it as less than tie petitioner now claims. Dodge «. Nichols, (5 A.) 87 548. 624. Declarations of a deceased person in possession, in favor of his own title, not accom- panied with any act then done, are inadmissible. Osgood b. Coates, (1 A.) 83 77; Mor- rill fl Titcomb, (8 A.) 90 100; Hayden «. Stone, 121 413. <™ie, S I* (lTT lere SUch de °larations are admissible, see „3 5 - ^. ere , * he selJ er of a chattel retains pos- session ot it, his acts and declarations, accom- panying the possession, are generally compe- tent against the purchaser. Eoberts v. Medbery, 132 100. 626. But after delivery, the declarations of the seller, in the absence of the purchaser, are not evidence in disparagement of the title of the purchaser. Horrigan «. Wright, (4 A.) 86 514; Lincoln v. Wilbur, 125 249; Roberts v. Medbery, 132 100. 627. So of a mortgagor's declarations, after the mortgage of a chattel. Perkins v. Barnes, 118 484. See Sweetser v. Bates, 117 466, therein explained. 628. As between a third person, and an execu- tor or administrator, the declarations of the decedent as to his ownership of a chattel, are evidence against the latter, but not in his favor. Heywood v. Heywood, (10 A.) 92 105; Kimball v. Leland, 110 325; Pel- lows «. Smith, 130 378. 629. Where one claims title to a chattel as a gift from a deceased person, the declarations of the decedent, before and after the alleged gift, are admissible against the donee. Whitwell v. Winslow, 132 307. [See, also, Got.! 630. And as against a mere assignee of a chattel, the declarations of the assignor in dis- paragement of title, are admissible. Coit «. Howd, (1 G.) 67 547. 631. But an admission of fraud is not evi- dence, against his assignee in insolvency. Heywood v. Reed, (4 G.) 70 574. 632. As to admissions of a bankrupt under the TJ. S. bankrupt law Wellington v. Jackson, 121 157. 633. The declaration of the vendor of a chat- tel, made before the sale, and in the absence of the purchaser, that he had already sold the chattel to a third person, is inadmissible in favor of the latler against the purchaser, al- though made to one who held the chattel in his keeping, with a request to keep it for the third person. Coit v. Howd, (1 G.) 67 547. 634. Public declarations by the owner of a chattel, of his intent to dispose of it, are admis- sible to show that his subsequent disposition of it was in good faith. Heywood v. Reed, (4 G.) 70 574. 635. An insolvent's schedules are evidence to prove his insolvency, in an action by his as- signee. Heywood v. Reed, (4 G.) 70 574; Simpson v. Carleton, (1 A.) 83 109. 636. Before the statute, where two creditors of the same debtor attached the same property, and the second was admitted to defend the first suit, the plaintiff could have given in evidence the debtor's confession, that his demand was bona fide. Strong v. Wheeler, (5 P.) 22 410; Lambert v. Craig, (12 P.) 29 199. [See now G. S., Ch. 123, 8 96 : P. S., Ch. 161, § 1H.1 637. Under a lease providing for an increased rent, on the lessee giving notice of an election. 486 EVIDENCE, VI, (3), (4). to extend the time, notice by the assignee of the lessee, is evidence in an action against him. Wall ». Hinds, (4 G.) 70 256. 638. Declarations of the nominal plaintiff, after assignment of the claim, are not admissi- ble against the assignee "Wing ®. Bishop, (3 A.) 85 456. 639. Conversations between corporators, re- lating to the proposed corporation, are inadmis- sible against the corporation. Fogg ®. Pew, (10 G.) 76 409. 640. Declarations by the holder of a promis- sory note, wh > took it when overdue, are admissible in favor of the maker against a sub- sequent transferee; but not declarations made before he took the note. Bond v. Pitzpatrick, (4 G.) 70 89. 641., Nor are they admissible, if made after an absolute transfer; but if the transfer is con- ditional, they are admissible to the extent of the interest remaining in him. Bond ». Fitzpatrick, (4 G.) 70 89. 642. In an action by the indorsee against the maker, declarations of the indorser are inad- missible for the defendant, although he retains an interest. Butler ®. Damon, 15 223. 643. The cases where the declarations of a payee have been admitted, to defeat a recovery by one to whom a note was indorsed when over- due, were made while he held the note, and proceeded upon that ground. Bond v. Fitzpatrick, (4 G.) 70 89; explainingSylvester ®. Crapo, (15 P.) 32 92; and Harris ®. Brooks, (21 P.) 38 195. See, also, Fisher ®. Leland, (4 C.) 58 456; "Wheeler ®. Eice, (8 C.) 62 205, 644. In an action by the payee against the surety, conversations between the payee and the principal are inadmissible against the surety. Dexter v. Clemans, (17 P.) 34 175. 645 In an action by the payee of a note against his pawnee for . not returning it, the defendant cannot show the declaration of the maker that nothing was due upon it. Thomas «. Waterman, (7 Met.) 48 227. (4.) Person jointly interested; co-plain- tiff or co-defendant. 646. The admission of one of two or more join, obligors, or joint contractors, made with- out collusion, is evidence against the others, although they are not partners. Martin ®. Root, 17 222; Hunt ®. Bridgham, (2 P.) 19 581; Amherst Bk. ®. Rcot, (2 Met.) 43 522; Dennie v. Williams, 135 28. [As to -where one is a surety, see poet, arts. 664 to 667.] 647. In a civil or criminal cause, the declara- tions of one of two or more parties, acting in concert and with a common purpose, especially an unlawful purpose, are admissible against the others; and it is for the presiding judge to determine whether the concert is established, or sufficient evidence thereof has been given to go to the jury. Pool®. Bridges, (4 P.) 21 378; Comm. ®. Crowninshield, (10 P.) 27 497. Haynes v. Putter, (24 P.) 41 242; Lund v, Tyngsborough, (9 C.) 63 36; Edeer- ton v. Wolf, (6 G.) 72 453; Comm « Brown, (14 G.) 80 419; Comm. t. Waterman, 122 43; Comm. ®. Scott 123 222; Stockwell v Blarney, 129 312; Comm. v. Ratcliffe, 130 36. See, however, Stone v. Segur, (11 A.) 93 568. 648. In an action against thfee, for obtaining personal property from the plaintiff by fraud, one of the defendants, having testified that he acted in gxid faith, and that his only connec- tion with the matter was making an advance, and selling the property as auctioneer, cannot prove that his co-defendant applied to another auctioneer, and did not employ him because he charged more. Holmes ®. Flanders, 134 147. 649. The admission by one member of a co- partnership, is evidence against all, of any fact relating to the copartnership, if the copartner- ship is first proved aliunde; but not otherwise, although he is dead. Odiorne v. Maxcy, 15 39; Ostrom ». Jacobs, (9 Met.) 50 454; Shaw v. Stone, (1 C.) 55 228; Dutton ». Woodman, (8 C.) 63 255; Allcott ®. Strong, (9 C.) 63 323; Robins®. Warde, 111 244. 650. But in an action against partners, on a promissory note of the firm, payable to, and indorsed by, one of the firm, and defended on the ground that the plaintiff took it, knowing that it was fraudulently given for the payee's own debt, the payee's declarations are not ad- missible against the others. Tuttle d. Cooper, (5 P.) 22 414. 651. The admission of one is not admissible to prove the copartnership. Tuttle ®. Cooper, (5 P.) 22 414; Bob- bins ®. Willard, (6 P.) 23 464; Dutton v. Woodman, (9 C.) 63 255; Currier v. Silloway, (1 A.) 83 . 19; Smith «. Col- lins, 115 388. 652. Evidence to show a continuation of a partnership, after it has been dissolved, must be as strong as to show its establishment. Allcott ®. Strong, (9 C.) 63 323. 653. But the separate admission of each is evidence against him to prove the partnership. Currier v. Silloway, (1 A.) 83 II; Smith ®. Collins, 115 388. 654. The admission of one partner, after dis- solution, is competent, but not conclusive, against the others. Cady t>. Shepherd, (11 P.) 28 400; Bridge ®. Gray, (14 P.) 31 55; Vinalo. Burrill, (16 P.) 33 401; Gay «. Bowen, (8 Met.) 49 100: Taunton I. Co. v. Rich- mond, (8 Met.) 49 434; Ide v. Ingra- ham, (5 G.) 71 106. 655. Where persons are severally liable in a civil action, the declarations of one are not evi- dence against the others. Baker v. Briggs, (8 P.) 25 128. 656. So where two sue as survivors of a third, to recover for the conversion of personal prop- EVIDENCE, VI, (4), (5). 487 "erty the declarations of the deceased are not .evidence against ,the plaintiffs ' Smith e. Aldrich, (12 A.) 94 553. 657 So of the declarations of one of two or more respondents in partition. Hodges A. Hodges, (2 C.) 56 455. 658. Where the declaration of one of two or more parties is admitted, and the others do not specially require a ruling that it is to he con- fined to him alone, they cannot afterwards ob- iect that it was admitted generally. Hubbell v. Bissell, (2 A.) 84 196; Williams v. Taunton, 125 34. 659. And in a criminal cause, where a declara- tion of one of two or more defendants is ad- mitted, where it is competent against one only, and he is acquitted and the others convicted, the latter cannot have a new trial on a bill of exceptions, which does not show that the evi- dence was admitted to affect them. Comm. e. Bosworth, (6 G.) 72 479. 660. Upon a joint indictment against husband and wife, the wife's declarations are admissible against her, but not against him. Oomm. v. Briggs, (5 P.) 22 429. 661. Upon a joint indictment against a man and a woman for adultery, the woman's admis- sion that she is the wife of another, made in the man's absence, is not evidence against him. Comm. v. Thompson, 99 444. 662. Upon a joint indictment of two for setting Are to a building, the declarations of one, three months before the occurrence, are evidence against him, but not against the other; hut the latter cannot maintain an exception for admitting it generally, where the judge instruc- ted the jury that it was of no weight against him. Comm. v. Ingraham, (7 G.) 73 46. 663. In an action by a second attaching credi- tor against an officer, for applying the proceeds to the execution of a prior attaching creditor, it was held, that the declarations of the latter were admissible for the plaintiff, he having in- demnified the defendant and thus being the real party in interest. Bayley e. Bryant, (24 P.) 41 198. 664. In an action against the surety alone of the treasurer of a manufacturing corporation, the treasurer's admission as to his defaults, made after the termination of his service, is not admissible. Chelmsford Co. v. Demarest, (7 G.) 73 1. 665. So held, alsb, in a joint action against principal and surety. Boston Hat Manufactory ». Messenger, (2 P.) 19 223. 666. But in a joint action against principal and surety, upon a bond conditioned for faith- ful performance of duty as an officer, agent, or the like, the entries or declarations of the prin- cipal, are evidence against the surety. Amherst Bk. v. Root, (2 Met.) 43 522; WiUiamsburgh Ins. Co. v. Frothingham, 122 291. 5 caSS'S 50 ' P° s '- Vi n.(«; and as to entries of de- ceased person, ante, I, (6).] 667. So even in an action against the surety only. Brighton Bk. v. Smith, (12 A.) 94 243. 668. The rule is the same, although the en- tries were made by clerks of a firm, of which the principal is a member. Williamsburg Ins. Co. v. Frothingham, 122 291. 669 And before the statute, an acknowledg- ment or partial payment by the principal, would take a note out of the statute of limitations, as to the surety also. Hunt v. Bridgham, (2 P.) 19 581; Prye «. Barker, (4 P.) 21 382. (.As to the effect of a Judgment against the princi- pal, see Surety, I, (3).~\ 670. Upon the trial of a joint indictment against two, if one offers himself as a witness, his testimony is competent against the other. Comm. v. Brown, ISO 279. ¥. (5.) Attorney; counsel; agent. See, also, Attorney at Law; Agency; Witness, \ (6).l 671. A pleading, bill of particulars, affidavit, specification of defence, or similar formal docu- ment in a cause, signed by the attorney or coun- sel of a party, is not evidence against the party in another suit, unless at least affirmative evi- ence is given that the attorney was so instructed. Baldwin v. Gregg, (13 Met.) 54 253; Dennie v. Williams, 135 28. See, also, Page v. Page, (15 P.) 32 368; Walcott, v Kimball, (13 A.) 95 460; Murray v. Chase, 134 92. [As to the admissibility of affidavits, sworn plead- ings, and the like, and the pleadings in the action upon trial, see ante, VI, (1).] 672. But a pleading, petition, or other paper in a cause, is evidence against the party in an- other cause, if it is shown that the party ex- pressly or impliedly ratified the act of his attorney or counsel. Gordon v. Parmelee, (2 A.) 84 212; Bliss v. Nichols, (12 A.) 94 443; Boston B.Richardson, (13 A.) 95 146; Boston ». Richardson, 105 351; Bogle v. Chase, 117 273; Brown v. Jewett, 120 215. 673. And an assertion of a matter of fact, made by an attorney in the course of a trial or hearing, in the presence of the party, is evi- dence against the party in another action. Lord v. Bigelow, 124 185. 674. The admission by the district-attorney, upon a criminal trial, that a witness called by him was an accomplice, is evidence of that fact; and the court cannot leave it to the jury to find otherwise, and instruct them that if they do so, he does not need corroboration. Comm. ii. Desmond, (5 G.) 71 80. See, also, Comm. v. Elliot, 110 104. 675. The declarations of an agent, appa- rently acting within the scope of his authority, are evidence against the principal, although the agent is a competent witness, and although they are made after the transaction in question, if the agency continues. Gott ». Dinsmore, 111 45; Lane v 488 EVIDENCE, VI, (5). Boston & A Railroad, 112 455; Green v Boston & L Railroad, 128 221. See, also, Baring v. Clark, (19 P.) 36 320; Lobdell v Baker, (1 Met,) 42 193; Morse v. Conn. R. R. R., (6 G.) 72 450; Merrifield v. Robbins, (8 G.) 74 150; Palmer v. Crosby, (11 G.) 77 46; Bierce v. Stocking, (11 G.) 77 174; Munroe «. Holmes, (5 A.) 87 201; McGenness v. Adriatic Mills, 116 177. 676. But the agent's authority must first be proved, and his own declarations are insuffi- cient for that purpose Hart 1>. Waterhouse, 1 433; Brigham v. Peters, (1 G.) 67 139; Haney*. Don- nelly, (12 G.) 78 361; Baker «. Gerrish, (14 A.) 96 201. 677. As to the necessity and sufficiency of proof aliunde of authority. McGregor «. Wait, (10 G.) 76 72; Lee B.Wheeler, (11 G.) 77 236; Beecher t>. Mayall, (16 G.) 82 376; Johnson e. Trinity Ch., (11 A.) 93 123; Marsh v. Hammond, (11 A.) 93 483; Short Mt. Coal Co. v. Hardy, 114 197; Richmond I. Works t>. Hayden, 132 190; Sloan v. Merrill, 135 17. 678. A deputy sheriff, whose acts are in question, is the agent for the sheriff within the rule. Tyler e. Ulmer, 12 163. 679. In an action against a carrier for an injury to goods, the admissions of the freight agent, after delivery of the goods, are not ad- missible in favor of the plaintiff. Boston & M. Railroad ». Ordway, 140 510. See, also, Robinson e. Fitchburg Railroad, (7 G.) 73 92; Pratt v. Ogdens- burg, etc., Railroad, 102 557; Grin- nell v. Western U. Telegraph Co., 113 299. 680. Mere admissions of liability by an agent, as distinguished from specific facts, which it was the agent's province to know, are not ad- missible. Boston & M Railroad v. Ordway, 140 510 See, also, Green v. Boston & L. Rail- road, 128 221. 681 Declarations of an agent, when he makes an agreement, are admissible only when they might have induced the other party to have entered into it, or might in some manner have affected or modified it. Dartmouth v. Lakeville, (7 A.) 89 284. 682. Qu., whether such declarations are ad- missible except in an action upon, or relating, to, that agreement. Dartmouth ». Lakeville, (7 A.) 89 284. 683. Or when they are a part of the res gestm. Woods®. Clark, (24 P.) 41 35; Cooley «. Norton, (4 C.) 58 93; Dome v. Southwork M. Co., (11 C.) 65 205. 684. If A sends a message by B to C, the conversation between B and C, outside of B's limited agency, is not admissible in an action between A and C. Rowe v. Canney, 139 41. 685. An agent of a firm cannot, by his repre- sentations, estop a particular individual from denying that he is a member of the firm. Plumer ». Lord, (9 A.) 91 455. 686. And generally an agent's acts or deck- rations, although made in the course of the busi- ness for which he is employed, are not admis- sible as to any fact not within his employment or necessarily connected therewith. Thus declarations as to the ownership of a note, made to the indorser by one employed to sell it, are not evidence to affect the purchaser's title. •Wilson «. Bowden, 113 422. So of declarations of an officer of a bank with which a note is lodged for collection. Wilson v. Bowden, 1 13 422. So of declarations of an agent of an insurance company, employed only to obtain and transmit applications for insurance, as to the capital of the company. Fogg v. Pew, (10 G.) 76 409. So of declarations of an engineer on a rail- road, made a few days after the accident, as to the cause thereof. Robinson v. Pitchburg, etc., R. R., (7G.) 73 92. So, in the same case, of the president's state- ment that he thought that the company would give the plaintiff something, as the declaration itself implied a want of authority. Robinson v. Fitehburg & W. R. R., (7G.) 73 92. So, in an action against three railroads for a loss of goods, of the declarations of a master of transportation of two of them, not forming part of any official act, or within the scope of his authority. Pratt v. Ogdensburg, etc., Railroad, 102 557. So that a telegraph company's officer made a deduction from the pay of an operator, after negligence in the transmission of a message. Grinnell v. Western TJ. Tel. Co., 113 299. 687. Or where his authority has ceased. Thus where a shipmaster sold the vessel in a foreign port, his declarations after the sale are not evidence. Woods v. Clark, (24 P.) 41 35. So as to the declarations of an engineer, etc., after the work is finished. Stiles v. Western Railroad, (8 Met.) 49 44. So as to the declarations of agent to sell goods, made after the sale. Sumner v. McNeil, (12 Met.) 53 519. So as to the agent's declarations as to the terms of an oral contract, made afterwards. Corbin o. Adams, (6 C.) 60 93. 688. The rule that declarations of an agent are competent, while his agency continues, means, not while he continues to hold the office, in respect to which he made the contract, but during the negotiation or execution of the par- ticular contract in question. Thus the declara- tion of a surveyor of highways, in relation to work done on the highways of a town under a contract made by him, is not admissible against the town, if made after the work was com- pleted, although he is still in office. Burgess «. Wareham, (7 G.) 73 345. 689. Where one of the terms of an oral con- tract, made through an agent,, is that a witness shall be called in as to its terms, the terms, as EVIDENCE, VI, (5), (6). 489 stated by the agent or by the other party, in the presence of such witness, are evidence against toepr Turtle' *. Brown, (4 G.) 70 457. 690. A mere expression of an opinion by an agent is not admissible. Robinson v. Fitchburg & W. B. B., (7 G) 73 92; Boston & M. Railroad v. Oraway, 140 510. 691. In an action against a town for damages from a defective road, the report of a commit- tee, appointed by the town to inquire into the matter, and the vote of the town accepting the report, are not admissible against the town, if facts are not set forth, which show the liability of the town, although the report finds the road to be unsafe. Dudley v. Weston, (1 Met.) 42 477; Collins v. Dorchester, (6 C.) 60 306; Wheeler v. Framingham, (12 C.) 66 287. 692. The declarations of overseers of the poor are not evidence against a town, upon a question of settlement, since they act as public officers, not as agents of the town. New Bedford v. Taunton, (9 A.) 91 207; Dartmouth v. Lakeville, (9 A.) 91 211, note. 693. But declarations of the selectmen, duly authorized by a vote of the town to erect a building, are evidence against the town, in an action by the contractor. Blanchard v. Blackstone, 103 343. 694. If an interpreter is employed by an agent to treat with a third person, the conver- sation is admissible against the principal, with- out proof that it was truly interpreted. Camerlin v. Palmer Co., (10 A.) 92 539. 695. An agent's letters to his principal are not admissible in favor of the latter, although the agent is dead. Framingham M. Co. v. Barnard, (2 P.) 19 532. 696. In an action by A against B, to recover for goods bought by A on B's account, where A sent the goods to C, a letter to C from one, with whom A left the bill of lading to send to him, is competent in favor of B. McEnney v. Wilson, 133 131. (6.) Confession In a criminal cause. 697. The voluntary admission to another of his guilt, by one Indicted for a crime, or of any circumstance which tends to convict him of the crime, is evidence against him, although it was a penitential confession by one church member to another. Comm. v. Drake, 15 161; Comm. v. Kenney, (12 Met.) 53 235; Comm. v. Smith, 119 305. 698. And the fact that the defendant has made a confession or admission which is in- competent, will not exclude a confession at another time, when the objection did not exist. Comm. v. Dower, (4 A.) 86 297. 699. His offer to plead guilty upon another charge, his plea of guilty upon another indict- Vol. 1—62 ment or complaint, his statement at a former trial, his testimony in a civil cause, his state- ments in a former criminal cause, are evidence against the defendant in a criminal cause, where they tend to prove the charge. Comm. v. King, 18G.) 74 501; Comm. i>. Callahan, 108 421; Comm. ■», Ayers, 115 137; Comm. v. Reynolds, 122 454; Comm. ». Bradford, 126 42. 700. His'testimony in another criminal cause may also be used against him, if given without promise of immunity, and when the prosecuting officer was not in attendance, or before a grand jury, without the request of the district-attorney. Comm.!. King, (8 G.) 74 501; Comm. i). Brown, 103 422; Comm. «. Denehy, 103 424, note; Comm. •». Bradford, 126 42. 1 701. A confession is to be interpreted by the jury; it is to be received with caution, but the jury are to determine its weight; and it is not conc.usive against the defendant, but he may satisfy the jury of his innocence by argument or by other testimony. Comm. v. Howe, (9 G.) 75 110; Comm. ■». Snow, 111 411; Comm. v. Galligan, 113 202; Comm. v. Sanborn, 116 61. 702. A confession by one so intoxicated as not to understand it, is no evidence of guilt; but if he is merely under the influence of liquor it is admissible. Comm. v. Howe, (9 G.) 75 110. 703. Where a doubt arises whether the con- fession was free and voluntary, or induced by threats, promises of immunity, or otherwise in- competent, it is proper to let it go to the jury- under proper instructions. y Comm. v. Howe, (9 G.) 75 110; Comm. «. Cuffee, 108 285; Comm. «. Smith, 119 305; Comm. v. Piper, "120 185; Comm. 1). Nott, 135 269; Comm. v. Preece, 140 276. 704. But the determination of the preliminary question, whether the confession is admissible, belongs to the court; and if the judge is satisfied that the facts are made out, which render it competent or incompetent, his conclusion there- upon is not subject to review, unless it involves a ruling upon a matter of law; or the whole evidence is reported for the determination of the appellate court; or the court refused to hear some competent testimony upon the subject . Comm. «. Howe, (9 G.) 75 110; Comm. «. Morrell, 99 542; Comm. v. Piper, 120 185; Comm. v. Culver, 126 464; Comm. v. Howe, 132 250; Comm. v. Preece, 140 276. 705. An accomplice, who confesses upon a promise of immunity, if he will turn state's evi- dence, and then refuses to testify, may be prosecuted, and his confession may be used against him. Comm. v. Knapp, (10 P.) 27 477. 706. A confession by one charged with em- bezzlement, which relates to the whole course of conduct, pursued by the defendant, during his whole employment in the service of the person, whose property; he is charged with em- bezzling, necessarily includes all the arts charged to have been done within that time, 490 EVIDENCE, VI, (6). and is competent for the consideration of the jury, although it specifies no particular acts. Comm. 0. Sawtelle, 141 140. 707 A confession of guilt, obtained by threats or promises of favor, is inadmissible; and if made to the officer having the party in custody i it is more carefully scrutinized, and slighter threats or promises will exclude it, than in any other case. Comm. 0. Chabbock, 1 144; Comm. v. Taylor, (5 C.) 59 605; Comm. 0. Tuckerman, (10 G.) 76 173; Comm. v. Curtis, 97 574. 708 The rule is, that to exclude the confes- sion, it must appear that some fear of personal injury, or some hope of personal advantage, was held out to induce it. Comm. «. Morey, (1 G.) 67 461; Comm. v. "Whittemore, (11 G.) 77 201; Comm. «. Kennedy, 135 543. 709. The admission of a confession, made to the officer upon the officer's statement that "he would make no promises, but if the party made any disclosures, he would use his influence in his favor," is error, although the officer testi- fies that he believes that the confession was voluntary, and although the judge instructs the jury to disregard it, if it was not free and voluntary. Comm. 0. Taylor, (5 C.) 59 605. 710. It makes no difference that the prisoner began the conversation, and that the officer, at first, told him that he would not advise him either way, if the officer said to him that " it is better for a man who is guilty to plead guilty, for he gets a lighter sentence." Comm. 0. Curtis, 97 574. 711 Qu., whether the officer's remark, "you had better tell the truth,", renders the confes- sion inadmissible, the remark " you had better own up," renders it inadmissible, although the person addressed, and subsequently indicted, was a police officer, and no arrest had then been actually made, and the person addressing him was another police officer, who had caught the former in the act of stealing, and the conversa- tion was in the presence of their common supe- rior officer. Comm «. Nott, 135 269. See, also, Comm 1> Preece, 140 276. 712 "The more lies one tells in such cases, the deeper one gets into the mud," if said by the arresting officer, does not render the confes- sion inadmissible. Comm. 0. Mitchell, 117 431. 713 "Where one officer held out inducements to his prisoner to confess, and the next day he confessed to another officer, he is entitled to an instruction to the jury to give no weight to the confession, if they thank it was made under the influence of the inducements. Comm. 0. Cullen, 111 435. 714. If the officer merely threatens the party with conviction, that does not render his con- fession inadmissible. Comm. 0. Whittemore, (11 G.) 77 201. 715 So where the officer tells him that he is not obliged to answer any questions, and then questions him, holding out no inducements. Comm 0. Sturtivant, 117 122. See, also, Comm. v. Holt, 121 61. 716. So, although inducements are held out where it is apparent that they had no influence' as where the party refused to confess until the stolen property was found, and then confessed Comm. «. Crocker, 108 464. 717. So where a boy was arrested without warrant, by two officers, who stripped and searched him, and took him from the cell late at night, and questioned him for two hours, not warning him of his right to refuse to answer, but holding out no inducements. Comm. 0. Cuffee, 108 285. 718. Where an accomplice, a witness for the government, testified to the defendant's .guilt, and on cross examination, said that he confessed his guilt, under inducements, to the officer who arrested him, the government may show, by the officer's testimony, that the confession was voluntary. Comm. 0. Ackert, 133 402. 719. It is no objection to proof of the defend- ant's confession, after his arrest, to his assignee in insolvency, that at a former interview, in- ducements were held out to him by the assignee, if, when the confession was made, enough was done by the assignee to remove the impression from the defendant's mind. Comm. 0. Howe, 132 250. 720. A confession, while in jail, to the prose- cutor, is admissible, if nothing is said by the latter to induce it, beyond general statements that if one is guilty, it is better to confess. Comm. v. Morey, (1 G.) 67 461. 721. So where it appears that whatever was said had no influence in inducing the confes- sion. Comm. 0. Knapp, (9 P.) 26 496. 722. So where the prisoner, accused of lar- ceny of his employer's goods, was told by the latter that he wanted him "to make a clean breast of it," without any promise or threat. Comm. i>. Sego, 125 210. 723. And where the treasurer of a corporation, who had embezzled its funds, was urged by his surety to go to the directors, and " make a clean breast of it," for it "would be for his interest to do so;" and next day they went together to one of the directors, who said that he did not know what his power or duty was, hut he would do all in his power to prevent a prosecu- tion, the confession then made was admitted. Comm. 0. Tuckerman, (10 G.) 76 173. 724. And where an employer notified his employee, charged with larceny, that he should be discharged, unless he settled with the owner of the property, but if he did settle, he should be kept at work, and nothing shouldbe said about it, a confession then made is admissible. Comm. 0. Howe, (2 A.) 84 153. 725. Although the confession of a defendant, on trial for murder, is inadmissible, it may be proved, that he said something about a weapon, without giving his words, in consequence of which the witness went to a certain place, and there found such a weapon. Comm. «. James, 99 438. 726. Qu., whether where evidence of a con- fession, procured by inducements, has been admitted without objection, the defendant is ofi EVIDENCE, VII, (1). 491 right entitled to an instruction to the jury to disregard it. Comm. v. Kennedy, 135 543. VII. Oral Testimony to affect a Weiting. (1,) General principles. 727. Oral evidence cannot be admitted to alter a written contract, or to annex to it a condition or defeasance not appearing in the contract itself. Thus it cannot be shown by oral testimony that a note was a memorandum, or that certain certificates of stock, described in it as collateral security, should operate as pay- ment at maturity, if not paid before. Perry v. Bigelow, 128 129. 728. Where an oral contract is reduced to ■writing, before a material, part of it has been performed, the oral contract is merged in the written. Bergin 0. "Williams, 138 544. 729. For other illustrations of the rule, that a condition or defeasance cannot be annexed, by oral testimony, to an absolute written promise to pay money, or to do any other act, see Hunt 0. Adams, 7 518; Rose 0. Learned, 14 154; Dix e. Otis, (5 P.) 22 38; Spring «. Lovett, (11 P.) 28 417; Wakefield v. Stedman, (13 P.) 29 562; Eobinson v. Mansfield. (13 P.) 30 139; Bursley 0. Hamilton, (15 P.) 32 40; Curtis «. Wakefield, (15 P.) 32 437; Clark v. Flint, (22 P.) 39 231; Lapham v. Whipple, (8 Met.) 49 59: St. Louis P. Ins. Co. v. Homer, (9 Met.) 50 39; Adams v. Wilson, (12 Met.) 53 138; Underwood v. Simonds, (12 Met.) 53 275; Billings 0. Billings, (10 C.) 64 178; Allen v. Furbish, (4 G.) 70 504; Kelley v. Brown, (5 G.) 71 108; Kimball 0. Bradford, (9 G ) 75 243; Wright «. Morse, (9 G.) 75 337; Wright 0. Smith, (16 G.) 82 499; Rennell 0. Kimball, (5 A.) 87 356; Towe^ ^Richardson ,(6 A.) 88 351; Doyle 0. Dixon, (12 A.) 94 576; Colts. Cone, 107 285; Munde c. Lambie, 122 336. [See, also, Bill or Exchange and Promissory Note, V, (6).l 730. Thus, upon foreclosure of a chattel mortgage, oral evidence is inadmissible to show that the mortgage note, payable on demand, was given as collateral security to indemnify the mortgagee against liabilities, which have not matured. 64 Southwick 0. Hapgood, (10 C.) 731. A reservation, condition, or defeasance, cannot be annexed by oral testimony to an ab- solute conveyance. Hovey 0. Newton, (7 P.) 24 29; Noble v. Bosworth, (19 P.) 36 314; Ashley v. Ashley, (4 G.) 70 197; Lin- colnj). Parsons, (1 A.) 83 388; Earle v. De Witt, (6 A.) 88 520. 732. Nor can it be shown that a discharge of a mortgage was intended to be an assignment, or vice versa. ° Wade v. Howard. (6 P.) 23 492; Howard i>. Howard, (3 Met.) 44 548. 733. Nor that it was the intention to except certain demands from a release of all demands. Deland 0. Amesbury Man. Co., (7 P.) 24 244; West Boylston M. Co. v. Searle, (15 P.) 32 225; Rice v. Woods, (21 P.) 38 30; Frost v. Brigham 139 43. [See, also, Kelease.] 734. As between the parties, oral evidence is not generally competent to show that a com- mon bill of sale was given as collateral security, or as a mortgage; but where the question does not arise upon the title to the property, that fact may be shown. Reeve 0. Dennett, 137 315. See, also, Fletcher 0. Willard, (14 P.) 31 464; Hazard «. Loring, (10 C.) 64 267; Caswell v. Keith, (12 G.) 78 351; How- ard 0. Odell, (1 A.) 83 95; Harper v. Ross, (10 A.) 92 332; Pennock 0. Mc- Cormick, 120 275; Philbrook «. Eaton, 134 398. 735. And in equity a conveyance of real or personal property, or an assignment of a mort- gage, may be shown to have been given as se- curity for a debt. Newton 0. Fay, (10 A.) 92 505; Camp- bell 0. Dearborn, 109 130; McDon- ough v. Squire, 111 217; Pond 0. Eddy, 113 149; Hassam v. Barrett, 115 256; Warfield v. Fisk, 136 219. [See Equity Jurisdiction, II, (12).] 736. As between party and party, oral testi- mony cannot be admitted to vary the legal effect of the terms of a written instrument, as to show that an indorser of a note was not to be held as such. Prescott Bk. e. Caverly, (7 G.) 73 217. 737. Or that a conveyance of a tract of land was intended to convey one half thereof. Locke 0. Whiting, (10 P.) 27 279; Childs 0. Wells, (13 P.) 30 121. 738. Thus, where no time of performance is mentioned in a contract, it is to be performed in a reasonable time, and a simultaneous oral agreement, that it shall be performed by a par- ticular day, is inadmissible, except as bearing on the question, what is a reasonable time. Atwood 0. Cobb, (16 P.) 33 227. 739. So where money is to be paid, the legal effect is that it is to be paid on demand, and an oral agreement to pay on a particular day is inadmissible. Warren 0. Wheeler, (8 Met.) 49 97; Ryan v. Hall, (13 Met.) 54 520. 740. For other illustrations of the rule, that the legal effect of a written instrument cannot be altered by oral testimony, see Harlow 0. Thomas, (15 P.) 32 66; Barker 0. Buel, (5 C.) 59 519; Riley 0. Gerrish, (9 C.) 63 104; Myrick 0. Dame, (9 C.) 63 248; Lee v. Howard Ins. Co., (3 G.) 69 583; Spurrs. Andrew, (6 A.) 88 420; Waite v. Dimick, (10 A.) 92 364; Hannum 0. Kingsley, 107 355; McFarland 0. Boston & L. Railroad, 115 63; Burlingame 0. Foster, 128 125; Wilson 0. Powers, 131 539; Whitwell 0. Winslow, 134 343. 741. In the absence of fraud, oral testimony is not admissible, to show that a written instru- 492 EVIDENCE, VII, (1), (2). merit was not read to or by the party execut- ing it, or that he understood it to be something else. Leddy «. Barney, 139 394; Jackson ». Olney, 140 195. 742. Oral testimony cannot be admitted to add to, explain, vary, or contradict, the terms of a written instrument, where there is no latent ambiguity in it. Black v. Bachelder, 120 171; Keller v. Webb, 126 393. [As to the effect of usage and custom, see Usage.] 743. An action will not lie upon an oral con- tract made by the grantor, before the execution of a deed, that the land is free from incum- brances. Tucker v. White, 125 344. See, also, Howe v. Walker, (4 G.) 70 318; Earle v. DeWitt, (6 A.) 88 520. 744. So an oral warranty cannot be engrafted upon a written contract for the sale of goods. Frost ». Blanchard, 97 155. 745. Nor can the seller, upon a written sale, with warranty, show that the bargain was for a sale without warranty, on the ground of want of consideration. Davis v. Bale, (6 C.) 60 505. See, also, Worcester Co. Sav. Instn. ■». Davis, (13 G.) 79 531. 746. For other illustrations of the rule, see Bevere v. Leonard, 1 90; Storer v. Freeman, 6 435; King v. King, 7 496; Lewis v. Thatcher, 15 431; Brig- ham v. Rogers, 17 571; Comstock t>. Van Deusen, (5 P.) 22 163; Lefflngwell v. Elliott, (8 P.) 25 455; Farnam «. Brooks, (9 P.) 26 212; Harlow v. Thomas, (15 P.) 32 66; Driscoll v. Fiske, (21 P.) 38 503; Boyle v. Agawam Canal, (22 P.) 39 381; Richardson v. Suffolk Ins. Co., (3 Met.) 44 573; Fin- ney v. Bedford Com. Ins. Co., (8 Met.) 49 348; Leonard «. Smith, (11 Met.) 52 330; Wilson v. Sherburne, (6 C.) 60 68; Dutton «. Gerrish, (9 C.) 63 89; Raymond ». Raymond, (10 C.) 64 134; Sayward t>. Stevens, (3 G.) 69 97; Howe v. Walker, (4 G.) 70 318; Good- rich v. Longley, (4 G.) 70 379; Jenkins v. Quincy Ins. Co., (7 G.) 73 370; Ben- nett v. Ryan, (9 G.) 75 204; Clark v. Houghton, (12 G.) 78 38; Boardman v. Spooner, (13 A.) 95 353; Russell ». Barry, 115 300; Miller v. Washburn, 117 371; Fitzu. Comey, 118 100; Keller v. Webb, 126 398; Attorney- General v. Whitney, 137 450. 747. Oral testimony cannot, at law, be ad- mitted to show a mistake in a written instru- ment. Bayley v. Taber, 5 286; Lee v. Mass. Ins. Co., 6 208; Ewer v. Washington Ins. Co., (16 P.) 33 502; Holmes v. Charlestown Ins. Co., (10 Met.) 51 211; Royce t>. Barnes, (11 Met.) 52 276; Crawford v. Spencer, (8 C.) 62 418; Palmer ». Williams, (13 G.) 79 338; Ruggles v. Barton, (16 G.) 82 151. [As to the rule in equity, see Equity Jurisdic- tion, II, (13).] 748. Or that neither party understood its legal effect and operation. Winslow «. Driskell, (9 G.) 76 363 (2.) Instruments and issues within or without the rule. [As to executory contracts, deeds, and releases see ante, VII, (1). Generally, see, also, Estoppel.' II- FOBMER ADJUDICATION, II.l ' 749. The general principles as to oral evi- dence apply to a will, which cannot be varied added to, or controlled, by declarations of the testator, or other oral testimony, where there is no ambiguity in its terms. Richards v. Dutch, 8 506; Farrar v Ayres, (5 P.) 22 404; Crocker®. Crocker' (11 P.) 28 252; Barrett ». Wright (13 P.) 30 45; Brown v. Saltonstkll, (3 Met.) 44 423; Tucker v. Seaman's Aid Soc, (7 Met.) 48 188; Weston v. Foster, (7 Met.) 48 297; Osborne v. Varney, (7 Met.) 48 301; Warren v. Gregg, 116 304. [See, also, Devise and Bequest, n; III; Tm, 750. But oral evidence is admissible to show that land devised, without words of inheritance, was uncultivated, to enable the devisee to take a fee. Sargent v. Towne, 10 303. 751. Qu., whether, where a will purports to give real and personal property, it may be shown that the testator, when it was made, had no real property. Brown v. Thorndike, (15 P.) 32 888. 752. And the subject matter of a devise, or the person of the devisee, may be identified by oral testimony. Aldrich «. Gaskffl, (10 C.) 64 155; Perkins «. Jewett, (11 A.) 93 9; Melcher ®. Chase, 105 125; Cleverly v. Cleverly, 124 314. [See Devise and Bequest, n, (3).l * 753. Oral declarations of a testator are ad- missible upon the question, whether, by cancel- ling a later will, he intended to revive a former will, which has not been destroyed. Pickens e. Davis, 134 252. 754. Oral testimony is inadmissible in favor of, or against, a party or a privy, to contradict anything appearing in the record of a court, or of proceedings before a magistrate, if there was no want of jurisdiction. Sayles v. Briggs, (4 Met.) 45 421; Bacon v. Towne, (4 C.) 58 217; Comm. ®. Slocum, (14 G.) 80 395; Kelley v. Dresser, (11 A.) 93 31; Comm. v. Has- senger, 105 385; Comm. v. Gallagher, 126 54. 755. Or a recognizance taken by a magistrate. Cook o. Berth, 108 73. 756. But matter not contradicting it, as the presence of the respondent in a bastardy pro- ceeding, may be shown. Power ». Fenno, ('OG.) 76 249. 757. So that an offence proved, is the same as that alleged in the compkint. Comm. v. Dellane, ill G.) 77 67. EVIDENCE, VII, (2). 493 758. A magistrate, sued for issuing a mitti- mus, after an appeal, cannot 8ho"w by oral testi- mony that the plaintiff withdrew his appeal. Kendall v. Powers, (4 Met.) 45 553. See, also, Wells v. Stevens, (2 G.) 68 115. 759. But in an action between one of two joint plaintiffs for contribution for costs, the defendant may show that he did not authorize the suit. Wilson t>. Mower, 5 407. 760. And the real subject matter of a suit may he shown by oral testimony, upon the question whether it is a bar to another action, or upon a question of indemnity, where it does not appear upon the record. Parker n. Thompson, (3 P.) 20 429; Bridge v.. Gray, (14 P.) 31 55; Hood «. Hood, 110 463, 761. So it may be shown that'a party's name is incompletely or incorrectly given in the record. Root v. Pellowes, (6 C.) 60 29; Wood v. Le Baron, (8 C.) 62 471. 762. So, where the descriptions of land in the petition and the judgment do not correspond, that the land described in both is the same. Wood v. Le Baron, (8 C.) 62 471. 763. An officer's return, required by law to he in writing, cannot be contradicted. Purrington v. Loring, 7 388; Wilson ». Loring, 7 392; Wellington ». Gale, 13 483; Chappell ». Hunt, (8 G.) 74 427. 764. But an indorsement of service of a writ, which has not been returned, may be contra- dicted. Comm. v. Moran, 107 239. 765. And a latent ambiguity in a return may he raised, and then explained by oral testimony. American Bk. e. Doolittle, (14 P.) 31 123. 766. Or where the return says that the de- fendant has no last and usual abode, within the officer's precinct, this means only so far as the officer knows; and the defendant may show that, in fact, he had such an abode, to abate the writ, or reverse the judgment upon error. Tilden v. Johnson, (6 C.) 60 354. But not collaterally, to show that his last and usual abode is different from that stated in the return. Stewart v. Griswold, 134 391. ^ [See further on this subject, Oiticeajstd Ojticer, 767. A wrongful alteration, even after re- turn, may be shown. Brier v. Woodbury, (1 P.) 18 362. 768. A master's report is not admissible to explain, or otherwise affect the decree Sparhawk u. Twichell, (1 A.) 83 450. 769. Oral testimony is inadmissible, to show the sense m which a recorded vote of a corpor- ation was understood by a director. Gould «. Norfolk Lead Co., (9 C.) 63 Ooo. 770. So the record of a vote of proprietors of common lands, cannot be controlled or ex- plained by oral testimony; but such testimony is admissible to show that it was not a regular vote, but merely formal. Williams v. Ingell, (21 P.) 38 288. 771. The record of a town or district meet- ing, lately held, cannot be varied or controlled, nor can omissions in it be supplied by oral tes- timony. Saxton v. Nimms, 14 315; Thayer v. Stearns, (1 P.) 18 109; Taylor n. Henry, (2 P.) 19 397; Manning v. Gloucester Par., (6 P.) 23 6; Stoughton Sch. Dist. v. Atherton, (12 Met.) 53 105; Howlett e. Holland, (6 G.) 72 418; Mayhew %. Gay Head, (13 A.) 95 129; Andrews v. Boylston, HO 214; Halleck v. Boyls- ton, 117 469; Judd v. Thompson,. 125 553. 772. A conversation, at the time of the execu- tion of an instrument, and forming part of the res gesta, is admissible to show a collateral fact, as that the instrument was executed in conse- quence of a certain transaction. Jackson v. Olney, 140 195. 773. An instrument, executed after the com- pletion of a sale, or other transaction, is not the transaction, or the essential evidence of it; and such an instrument may be varied or ex- plained by oral evidence. Alvord v. Smith, (5 P.) 22 232; Hogins ii. Plympton, (11 P.) 28 97; Tisdale c. Harris, (20 P.) 37 9; Deshoa «. Merchts. Ins. Co., (11 Met.) 52 199;, Veazie n. Somerby, (5 A.) 87 280. 774. Oral evidence is admissible to show- that a memorandum, at the foot of a de- mand note, providing for payment on time, was affixed to the note before it was delivered; and in such a case it constitutes part of the- contract, and cannot be controlled by oral evidence. Heywood v. Perrin, (10 P.) 27 228. 775. The record of the vote' of the directors; of a corporation, appointing an agent, and ac- cepting the report of a committee thereupon is not a contract, which excludes extrinsic proof of his authority. Shaw «. Stone, (1 C.) 55 228. 776. An unsigned writing, directed by A to B, saying, "Buy me the following articles," (naming them,) is not a writing defining or lim- iting B's power, and excluding oral evidence: thereof. Snow n. Warner, (10 Met.) 51 132. 777. Aliter, of a formal letter of instructions. Richardson v. Churchill, (5 C.) 59 425. 778. A pilot may testify, in an action against the captain of a ship, that he acted under the latter's direction, although a pilot's duties and powers are fixed by law. Spoor v. Spooner, (12 Met.) 53 281. 779. Where the question arises upon the validity of a contract of sale, under which the plaintiff claims title to a chattel, it is not error for the judge to allow the plaintiff to modify his own testimony, that a paper, delivered to- him by the seller at the time of the sale, was a. bill of sale, by showing that it was a mere bill of parcels, although the defendant has called for its production. Mullen v. Kavanagh, 101 3S1. 494 EVIDENCE, VII, (2). 780. Where a debtor has made an assignment for the benefit of creditors, oral evidence of delivery is admissible. Clap v. Smith, (16 P.) 33 247. 781. Where a party, without objection from the other, introduces oral testimony to add to a ■written contract, he cannot object to similar evidence from the adverse party. Shaw ii. Stone, (1 C.) 55 228. 782. Nor can he object to the introduction of the paper itself. Hale v. Rice, 124 292. 783. The location of a railroad, filed with the county commissioners under the statute, is conclusive evidence of the land taken for the road, in an action against the corporation. Hazen 0. Boston & M. Railroad, (2 G.) 68 574. 784. The warrant of a sergeant of militia cannot be shown to be irregular by oral evi- dence. Ex parte Lovett, (16 P.) 33 84. 785. An award in writing cannot be con- trolled by oral declarations of the arbitrators, or of the parties, made at the time of pub- lication, or by other oral testimony. Clark v. Burt, (4 C.) 58 396; Strong v. Strong, (9 C) 63 560; Parker 0. Parker, 103 167. [See Arbitration, V, (5); VII.] , 786. The rule, excluding oral evidenc3 to affect a written instrument, is not affected by the statute allowing the adverse party to be called as a witness. l Kelly 0. Cunningham, (1 A.) 83 473. 787. Representations, made Defore the execu- tion of a bill of lading by the consignor, as to the depth of water at the place of landing, are not admissible in an action by the consignee against the shipowner for loss of the goods. Shaw 0. Gardner, (12 G.) 78 488. 788. A common bill of parcels, given upon the purchase of goods, is not the contract, and is open to explanation, addition, or variation, by oral testimony. Bradford v. Manly, 13 139; Fletcher t>. Willard, (14 P.) 31 464; Hazard o, Loring, (10 C.) 64 267; Caswell v. Keith, (12 G.) 78 351; Schenck v, Saunders, (13 G.) 79 37; Dunham v. Barnes, (9 A.) 91 352; Hildreth 0. O'Brien, (10 A.) 92 104; Olmstead 0. Mansir, (10 A.) 92 424; Stacy v. Kemp, 97 166; Atwater 0. Clancy, 107 369; Walker «. "Moors, 125 352. 789. So a receipt is not a release or a con- tract, but it is only prima facie evidence of payment, and may be controlled, added to, ex- plained, or contradicted, by oral testimony. Tucker v. Maxwell, 11 143; Brewer v. Knapp, (1 P.) 18 332; Baker v. Briggs, (8 P.) 25 122; Gerrish 0. Wash- burn, (9 P.) 26 338; Badger 0. Jones, (12 P.) 29 371; Brooks 0. White, (2 Met.) 43 283; Bard «. Wood, (3 Met.) 44 74; Delaney ®. Towns, (1A.) 83 407. 790. The same rule applies to indorsements of payments upon a promissory note. Kingman «. Tirrell, (11 A.) 93 97. 791. Or to an approval at the foot of an account. Nelson v. Weeks, 111 223. 792. But if a receipt contains also a con. tract, the rule applies. James v. Bligh, (11 A.) 93 4; Hurley 0. Brown, 98 545. See, however Badger v. Jones, (12 P.) 29 371. 793. So a receipt in full of all claims cannot be limited by oral evidence to certain claims. Brown ». Cambridge, (3 A.) 85 474. 794. Oral evidence is admissible to show, that a recital of a consideration was added to a receipt, without the knowledge of the party signing it, and to contradict it. Corlies v. Howe, (11 G.) 77 125, 795. So an account rendered, offered in evi- dence, or entered in a book, is prima facie evidence only. Robinson 0. Mansfield, (13 P.) 30 139; James 0. Spaulding, (4 G.) 70 451- Lee 0. Wheeler, (11 GJ 77 236; Char- man v. Henshaw, (15 G.) 81 293; Ban- field 0. Whipple, (10 A.) 92 27; Swift «. Pierce, (13 A.) 95 136; Allen ». Fuller, 118 402; Hofcnes v. Hunt, 122 505. 796. It may be explained and contradicted, even by the party offering it. Langdon 0. Hughes, 107 272. [ As to the application of the rule to a bill of lading! see that title. As to judgments and other records, see post, VIII, (2).l 797. Oral testimony is admissible to identify certain specifications, referred to in a building contract, and when thus identified, they are to be considered in connection with the contract, upon the question whether the contract is void for uncertainty. Bergin 0. Williams, 138 544. 798. A map or plan, filed by a railroad cor- poration, with the location of the road, and ex- pressly made a part of the description, may be referred to to explain, but not to modify or control, the location. Hazen 0. Boston & M. Railroad, (2 6.) 68 574. 799. A bill of sale, containing an inventory of the articles, and adding "said property being subject to" certain specified mortgages, is a bill of sale of all the property in the inventory, and oral' evidence is inadmissible to show, that those words were added for the purpose of limiting it to the property, covered by the mortgages. Ridgway 0. Bowman, (7 C.) 61 268. 800. As between a contract for erecting a building, and the specifications, the contract controls; and if there is an omission in the specifications, the contract cannot be explained by oral testimony. Smith 0. Flanders, 129 322. 801. Representations by the insured, the ap- plication for insurance, and the policy of insurance, are taken together, and cannot he affected by oral evidence. „ Jenkins 0. Quincy Ins. Co., (7 G.) 7«* 370; Liberty Hall Assoc'n 0. Housatonic Ins. Co., (7 G.) 73 261. EVIDENCE, VII, (2), (3). 495 862. In an action upon a note not negotiable, a letter wr.tten by the plaintiff, acknowledging au oral agreement at the time of giving the note is admissible to reduce the damages. Lewis r. Gray, 1 297. 803. The files of commissioners on an in- solvent estate are admissible, as part of and explanatory of their report, to show that a claim was not adjudicated upon by them; Ostrom v. Curtis, (1 C.) 55 461. 804. The rule, excluding oral evidence, applies only where the question arises directly upon the instrument, and not where one of two or more parties on the same side seeks to enforce a remedy against the other; as where joint con- tractors are principals and sureties inter sese, and a surety seeks to recover against the prin- cipal, or to enforce contribution. Carpenter «. King, (9 Met.) 50 511. 805. So where the real relation was known to the creditor, oral evidence is admissible to prove the relation, so as to let in a defence by the surety, that he is exonerated by the ereditor's dealings with the principal. Harris v. Brooks, (21 P.) 38 195; Carpenter v. King, (9 Met.) 50 511; McGee «. Prouty, (9 Met.) 50 547; Wilson «. Foot, (11 Met.) 52 285; "Weston v. Chamberlin, (7 C.) 61 404; Home v. Bodwell, (5 G.) 71 457; Clapp a. Rice, (13 G.) 79 403; Sweet «. McAllister, (4 A.) 86 353; Guild 8. Butler, 127 386; Mansfield v. Edwards, 136 15. 806. And this rule extends to a case where the action is brought upon a judgment, recov- ered against all the parties. Carpenter v. King, (9 Met.) 50 511. 807. So where real property was conveyed absolutely, the grantee, in an action against him for repairs, may show that he was a mere trustee for another, and that the plaintiff knew the fact, for the purpose of showing that credit was given to the cestui que trust. Tripp n. Hathaway, (15 P.) 32 47 808. And where two or more instruments, forming part of the same transaction, as a mortgage, and the note secured thereby, or the like, do not correspond to each other, oral evi- dence is admissible to identify the note, or to show which instrument expresses the real agreement. Johns, v. Church, (12 P.) 29 557- Hall 8. Tufts, (18 P.) 35 455; Pierce v. Parker, (4 Met.) 45 80; Clark o.Hough- J??',^ 2 11 78 38 ; Baxter «• Mclntire, 7% HJ% i 68 i Crafts «. Crafts, (13 G.) „o wO; Goddard v. Sawyer, (9 A.) 91 i i/» S? pden Cott011 Mills «. Payson, irfO 88; Payson «. Lamson, 134 593. w« ™ J^ le a P art r con tends that a transfer was made by an instrument, and testifies as to tew?" 1088 att f ndil >g W, the other may ™Trt * at * twas made by a later instrument, Zw i^ ere **? no such consideration or wl«S™ dm £ aS had been testifed t°; and the atteS^ 6 asked M t0 a e circumstances * lecuted 6 SeC ° nd instri ". md ^7 » Nash v. Hunt, 116 237. A ™S f °v, r the pur P° se of sh(win g title 10 real P^Perty by a written lease, oral testi- mony is competent to show that an agreement not under seal, signed by A, was in fact made by him in behalf of B, and that he was author- ized to make it. Bowcn i). South Building Prop'rs, 137 [See also Agency, IV.] 811. If an oral agreement is made between A and C, which is identical with a previous written contract between A and B, C's prede- cessor in business, and the written contract is obscure or vague; oral testimony is competent to show what both parties understood it to mean, and also how it had been interpreted by A and B, even if the evidence would have been incompetent, if the new contract had been in writing. Jennings v. Whitehead & A. Machine Co., 138 594. (3.) Patent and latent ambiguities; sur- rounding circumstances ; parties' acts. 812. The rule excluding oral testimony ap- plies to ambiguities patent upon the face of the instrument, subject to the recognized excep- tions. Storer v. Freeman, 6 435; Henshaw v. Mullens, 121 143. See, also, Far- well v. Mather, (10 A.) 92 322. 813. But oral testimony is admissible to raise a latent ambiguity, and when it is raised, to explain it. Bradford v. Manly, 13 139; Foster «. Woods, 16 116; Sargent v. Adams, (3 G.) 69 72; Hurley 11. Brown, 98 545; Chester E. Co. -». Lucas, 112 424; Mead ». Parker, 115 413; Matthews v. Westborough, 134 555. 814. Where the town of M conveyed a beach to B, reserving the right to enter and take away sand and gravel to repair the highways, in an action against A for entering, under the author- ity of the town of M, and taking away large stones, the latter cannot show that such stones have been always universally called gravel in M; but he may show that they are the materials, which the town of M has always used to repair the highways. Brown v. Brown, (8 Met.) 49 573. 815. Where a deed conveyed a right to flow land, to the height indicated by a hole drilled in a certain rock, a hole drilled there nineteen years afterwards, by the grantee, cannot be treated as the monument, and oral testimony is inadmissible to show that it was drilled at the place agreed upon, when the deed was given. White v. Bliss, (8 C.) 62 510. 816. An indefinite or uncertain description of the subject of the instrument, or of the persons bound or referred to therein, although patent on the face of the instrument, may be made definite by oral testimony, for the purpose of applying the instrument. McGregor v. Brown, (5 P.) 22 170; Allen e. Bates, (6 P.) 23 460; Water- man «. Johnson, (13 P.) 30 261; Paige 11. Stone, (10 Met.) 51 160; Gerrish 8. Towne, (3G.) 69 82; Woods 8. Sawen, (4 G ) 70 322; Sutton v. Bowker, (5 G.) 71 416; Ford 8. Tirrell, (9 G.) 75 401; 496 EVIDENCE, VII, (3), (4). Baker «. Hathaway, (5 A.) 87 103; Stoops v. Smith, 100 63; Miller v. Ste- vens, 100 518; Comm. v. Morgan, 107 199; Holmes e. Hunt, 122 505. 817. An agreement between mortgagor and mortgagee, by which the latter agrees to de- liver up the mortgage note to be cancelled, upon the doing of certain acts by the mortgagee, ad- ding " which settles all accounts with the said mortgagor," may be shown by oral evidence to have been intended as a settlement of all claims, for property taken from the premises by the mortgagee. Hemenway v. Bassett, (13 G.) 79 378. 818. Oral evidence is admissible to prove that of two deeds, each conveying an undivided half of the same property, the second was in- tended as a substitute for the first, on account of a defect therein. Fisk «. Fisk, (12 C.) 66 150. 819. But oral evidence is inadmissible to con- trol the description of the property, contained in a deed, where it is unambiguous. Thus where the land is bounded by a town line, it cannot be shown that the description was copied from a former deed; that the town line was changed since that deed was given; and that the old line was intended. Cook v. Babcock, (7 C.) 61 526. 820. But where the town line was established by the legislature, since the deed was given, dif- ferently from the former understanding, this is a latent ambiguity, explainable by oral evidence. Putnam v. Bond, 100 58. 821. For other rulings as to latent ambigui- ties in descriptions in deeds, see Davis v. Sherman, (7 G.) 73 291; Hoar 1>. Goulding, 116 132; Dunham v. Gannett, 124 151; Dunham «. Gan- nett, 126 151. 822. The words "more or less " do not create a latent ambiguity, and if the facts are not in dispute, the question of substantial compliance is for tbe court. Cabot ». Winsor, (1 A.) 83 546. 823. Oral evidence is admissible to show the size agreed upon of "casks," mentioned in a written contract. Keller v. "Webb, 125 88. 824. Or to show that a contract to sell goods to B, was intended as a sale to B's firm. Getchell «. Foster, 106 42. 825. For rulings, as to the admissibility of oral testimony to identify the grantee m a deed, where there are two of the same name, or the name has been changed, see Scanlan v. Wright, (13 P.) 30 523; Peabody o. Brown, (10 G.) 76 45; Kingsford v. Hood, 105 495; Simpson v. Dix, 131 179 826. Oral testimony is admissible to prove the relations of the parties, the nature, quality, and condition, of the property, which is the subject of the instrument, and all other surrounding circumstances, for the purpose of explaining patent ambiguities, or raising and removing latent ambiguities. Barry v. Bennett, (7 Met.) 48 354; Knight v. N. E. Worsted Co., (2 C.) 56 271; Herring v. Boston Iron Co. (1 G.) P.) 28 85; Bradbury v. Dwight (3 Met.) 44 31, Jackman v. Bowler a Met.) 45, 235; Hodges «. King, (7Met\ 48 583; Paige «. Stone, (10 Met.) 51 160; Sargent v. Adams, (3 G.) 69 72- Sutton v, Bowker, (5 G.) 71 416: Hurley «. Brown, 98 545; Russell «. Lathrop 117 424. [As to the effect of local usage, to control or inter pret the language of written instruments sen Usage.] ' 827. But if, where all these circumstances are disclosed, the meaning and application of the writing are not doubtful,the parties are bound by it. Mead v. Parker, 115 413. 828. Where one named in the body of a bond signed it, in the place appropriate for the attest- ing witness's signature, and one not named signed it opposite the seal, oral testimony is ad- missible to show that the former intended to become a party, and the latter a> witness. Richardson ». Boynton, (12 A.) 94 138. 829. But where a contract, purporting to be between two persons, and containing mutual and dependent stipulations, is signed by them, and also by a third person, neither party can maintain an action thereupon against the latter; and oral testimony is inadmissible to show, that he intended to be bound as surety for one of the others. Blackmer v. Davis, 128 538. 830. Oral testimony is also admissible, for the same purpose, of the acts of the parties under the instrument, as showing the construc- tion put upon it by themselves. Choate v. Burnham, (7 P.) 24 274; Owen «. Bartholomew, (9 P.) 26 520; Waterman v. Johnson, (13 P.) 30 261; Cambridge ®. Lexington, (17 P.) 34 222; Frost v. Spaulding, (19 P.) 36 445; Clark «. Munyan, (22 P.) 39 410; Stone -d. Clark, (1 Met.) 42 378; Knight «. New England W. Co., (2 C.) 56 271; Mann ». Dunham, (5 G.) 71 511; How- ard «. Fessenden, (14 A.) 96 124; Stevenson v. Erskine, 99 367; Morris i. French, 106 326; Lovejoy v. Lovett, 124 270. [See, also. Boundary Line, I, (2); Devise and Bequest, II; III; Will.] 831. For a case, where the subsequent acts of the- parties were not allowed to control the in- strument, see Atty.-Gen'l ». Whitney, 137 450. (4.) Date; consideration ; Invalidity ; subsequent modification ; collateral mat- ter. 832. The date of a deed, or other written in- strument, is only prima facie evidence of the time when it was delivered or took effect: the real time may always be shown by oral testi- mony, although such testimony may affect tne contents or validity of the instrument. Bayley e. Taber, 5 286; Battles*. EVIDENCE, VII, (4). 497 , uu «iS, (21 P.) 38 239; Dyer v. Rich, (1 Met.) 42 180; Smith «. Porter, (10 G. ) 76 66; Shaughnessey v. Lewis, 130 355- Baldwin «. Dow, 130 416; Davis S. M. Co. v. Stone, 131 384; Orcutt v. Moore, 134 48. [See ante. III, (3).] 833. But where the date is referred to in the body of the contract, as fixing the time of pay- ment, it cannot he varied by oral testimony. Joseph v. Bigelow, (4 C.) 58 82. 834. So the true time of issuing a writ, or other process, or taking an affidavit, may be shown, although it varies from the date. Parkman v. Crosby, (16 P.) 33 297; Ives v. Hamlin, (5 C.) 59 534; Sever «. Bickford, (15 G.) 81 73; Federhen v. Smith, (3 A.) 85 119. [See, also. Action, III.] 835. So as to the true time of the receipt of a registered letter, where the record kept by the postmaster is erroneous. Gurney v. Howe, (9 G.) 75 404. 836. So as to the time of filing a petition or other paper. Goulding v. Smith, 114 487. 837. In an action for breach of a covenant of seisin, where nothing passed by the deed, the damages being the consideration money, oral testimony is admissible to show that nothing was paid for a parcel, being part of the whole premises described. Lelandfl. Stone, 10 459. See, also, Spurr 9. Andrew, (6 A.) 88 420. 838. And the clause in a deed or other instru- ment^ acknowledging payment of the considera- tion, is mere prima facie evidence, and may be controlled or rebutted by oral testimony. Clapp v. Tirrell, (20 P.) 37 247. 839. Or it may be shown to have been paid by another, so as to establish a resulting trust. Peabody «. Tarbell, (2 C.) 56 226; Livermore v. Aldrich, (5 C.) 59 431; Kendall e. Mann, (11 A.) 93 15; Childs v. Jordan, 106 321. 840. So where no consideration is expressed, oral testimony is admissible to prove the con- sideration. Davenport ». Mason, 15 85; Paget v. Cook, (1 A.) 83 522; Baldwin v. Dow, 130 416. 841. And if a consideration is set forth, with an acknowledgment of payment, oral testimony is competent to prove an additional or different consideration, or that no consideration passed. Wilkinson v. Scott, 17 249; Gale v. Coburn, (18 P.) 35 397; Preble v. Bald- win (6 C.) 60 549; Clark v. Deshon, &2 C) 66 589; Paige v. Sherman, (6 G.) Jf 511; Miller v. Goodwin, (8 G.) 74 542; Ely ». Wolcott, (4 A.) 86 506; Egan<,.Bowker,(5A) 87 449; Goward ■ s vVk aters : 9S 596; Holden «. Parker, 110 324; O'Connell v. Kelly, 114 97; Twpmey *. Crowley, 137 184. See, <»wn». Gnswold v. Messenger, (6 P.) 23 , 517. 842 The manual delivery of an instrument may always be proved to have been on a con- Vol. 1—63 : dition, which has not been fulfilled, in order to avoid its effect. Whitaker v. Salisbury, (15 P.) 32 534; Faunce v. State Ins. Co., 101 279; Wilson v. Powers, 131 539. 843. So oral evidence is admissible, that at the time of the delivery of an agreement, and also before it was written, the parties agreed that it should become binding only upon rjro- curing a third person's assent. Wilson v. Powers, 131 539. 844. So that a contract, signed by a broker, was not the one which the broker had authority to make, and therefore that it never took effect. Coddington «. Goddard, (16 G,) 82 436; Dodd «. Farlow, (11 A.) 93 426; Remick v. Sandf ord, 118 102. 845. So oral testimony is inadmissible to prove the object of a written contract to have been illegal, if it does not contradict the terms of the contract. Russell v. De Grand, 15 35. 846. And to add an illegal oral stipulation to a contract, legal upon its face, so as to vitiate the whole. Allen v. Hawks, (13 P.) 30 79. 847. And to show fraud to invalidate the con- ' Fletcher v. Willard, (14 P.) 31 464; Case v. Gerrish, (15 P.) 32 49 [See Fraud, IV.] 848. But not to show that the party did not read the contract, and that its binding effect was misstated, if there was no fraud. Faucett v. Currier, 109 79; Faucett v. Currier, 115 20; Muhlig v. Fiske, 131 110. 849. But fraud is inferable, where a party could not read, and it is falsely stated to him that the instrument contained the terms of a previous oral agreement. Trambly v. Ricard, 130 259. 850. Oral testimony is admissible, to show an agreement, subsequent to a written agreement, and engrafting upon it new provisions. Munroe «. Perkins, (9 P.) 26 298; Richardson v. Hooper, (13 P.) 30 446; Small v. Jenkins, (16 G.) 82 155; Shaf- fer v. Sawyer, 123 294. 851. Or extending the time of performance. Stearns «. Hall, (9 C.) 63 31. 852. So to show the waiver of a right. Thompson v. Reheboth C. Soc, (5 P.) 22 469; Whitchera. Shattuck, (3 A.) 85 319. 853. Or the waiver of a condition precedent in a deed. Leathe «. Bullard, (8 G.) 74 545. 854. So an oral consent from the mortgagee to sell mortgaged chattels suffices, although the mortgage provides that they shall not be sold without his written consent. Shearer v. Babson, (1 A.) 83 486. 855. Where land, owned in common, was di- vided by commissioners, an oral license to enter and cut trees, granted by one tenant in com- mon to another, on a previous oral partition, and renewed when the commissioners were di- 498 EVIDENCE, VII, (4); VIII, (1). viding the land, suffices as a defence to show that the act was done with the former's con- sent, although it cannot control the effect of the last partition. Kent v. Kent, (18 P.) 35 569. 856. Oral testimony is admissible to establish an independent fact or a collateral agreement, incidentally connected with the stipulations of a deed or other written contract, and not con- tradicting them. Per Wilde, J., in Davenport v. Mason, 15 85; Willis v. Hulbert, 117 151; Carr 0. Dooley, 119 294; Mayo 0. Peterson, 126 516. See, also, Preble « Baldwin, (6 C.) 60 549; Small v. Jenkins, (16 G.) 82 155; Stoops 0. Smith, lOO 63; McCormick 0. Cheev- ers, 124= 262; and ante, VII, (1). 857. As to show an agreement to pay an additional sum as extra interest. Rohan 0. Hanson, (11 C.) 65 44. See, however, Hollenbeck v. Shutts, (1 G.) 67 431, Langdon 0. Langdon, (4 G.) 70 186. 858. So to show that one, employed by a written power of attorney, agreed to charge nothing for his services. Joannes v. Mudge, (6 A.) 88 245. 859. Or that the purchaser of a grocery store agreed not to carry on the same business, within a certain distance. Pierce 0. Woodward, (6 P.) 23 206. 860. So where a mortgage is made to secure an existing debt or obligation, the debt or obli- gation intended to be secured may be identified and proved by oral testimony, although differ- ing materially from the actual description thereof in the mortgage deed. Hall v Tay, 131 192. See, also, Stackpole 0. Arnold, 1 1 27; Johns v. Church, (12 P.) 29 557; Hall 0. Tufts, (18 P.) 35 455; Baxter v. Mclntire, (13 G ) 79 168; Hampden C. Mills v. Payson, 130 88. 861. So it may be shown, that a mortgage for a specific sum of money was given as security for future advances. Hall 0. Tay, 131 192. 862. So that a mortgage as security for sales of goods to A, was intended to secure sales made to a firm of wbich he was a member, although the mortgagor did not know of the existence of the firm. Hall v. Tay, 131 192. VIII. DOCUMENTARY EVIDENCE. LSee, as to primary and secondary evidence, and notice to produce, ante, V. As to records of a cor- poration, CORPORATION, VIII. As to procuring the production of books and documents by subpoena duces tecum, Witness, I, (2).] (1.) Ancient deeds and other documents. 863. A deed, more than 30 years old, in the hands of the proper party, and which has been followed by possession, proves itself, even if it does not convey title. Stockbridge 0. W. Stockbridge 14 257; Green v. Chelsea, (24 P.) 41 71. Pettingell 0. Boynton, 139 244. See' also, Rust 0. Boston Mill, (6 P.) 23 158'. 864. But if a deed purports to have been executed under a power, winch is matter or record, it is not evidence, however ancient without the power, or an authenticated codv thereof. . J Tolman 0. Emerson, (4 P.) 21 160. 865. Ancient town records; ancient proprie- tary grants, or books of proprietary records; and office copies of ancient deeds; if coming from the hands of the officer, or other person properly in possession thereof, are admissible in evidence without further proof. Monumoi Great Beach 0. Rogers, 1 159; Pitts 0. Temple, 2 538; Rust v. Boston Mill, (6 P.) 23 158; King v. Little, (1 C.) 55 436; Boston v. Wey- mouth, (4 C.) 58 538; Cheneiy ». Waltham, (8 C.) 62 327; Boston ®. Richardson, (13 A.) 95 146. 866. A license, more than 60 years old, pur- porting to show the ownership of land, is admissible in proof of the licensor's title, in connection with evidence of enjoyment, with- out direct proof of possession of the licensee under it. Boston 0. Richardson, 105 351. 867. A registry copy of a deed acknowledged in 1792, without the State, and recorded in 1802, may be read in evidence, in the absence of any proof that the officer, purporting to have taken the acknowledgment, was not authorized so to do. Palmer 0, Stevens, (11 C.) 65 147. 868. Copies of old deeds and wills, describing the grantor or testator as a resident of a certain town, are evidence of that fact. Ward 0. Oxford, (8 P.) 25 476. 869. And a town record of an ancient grant to a person, as the minister, and his will devis- ing land identified by monuments, as his home- stead, are proof that he resided in the town. North Bridgewater 0. West Bridgewater, (7 P.) 24 191. 870. Upon a question of settlement of a pauper, an ancient parchment, kept hanging in the house, an ancient family record, and an in- scription on a grave stone, are evidence to show the legitimacy of one born fifty years pre- viously. Brookfield 0. Warren, (16 G.) 82 171. 871. Recitals in ancient deeds are evidence upon questions of boundary, to prove the posi- tion of a line from which, the boundary in ques- tion can be determined. Sparhawk 0. Bullard, (1 Met.) 42 95; Morris 0. Callanan, 105 129; Hathaway 0. Evans, 113 264; Drury 0. Midland R. Road, 127 571. 872. So to prove the position of an arm of the sea, since filled up. Drury 0. Midland Railroad, 127 571. 873. Alitor, as to a deed executed within 20 years. Pettengill 0. Porter, (8 A.) 90 1. EVIDENCE, VIII, (2). 499 (2.) Records and other proceedings of courts and magistrates. [See. also, ante VII, (2); Constitutional Law, II, (6); Estoppel, II. (U-l 874. Where the record has not been extended, the files and docket entries of the superior court in an action, are admissible in support of a plea of a former judgment. Luce «. Dexter, 135 23. See, also, Central Bridge ».' Lowell, (15 G.) 81 106. 875 So of a judgment before a magistrate. McGrath v. Seagrave, (3 A ) 84 443. 876. Especially if he is dead. Davidson v. Slocomb, (18 P.) 35 464. 877. But not where the minute is not in the magistrate's handwriting. Wetherbee ,a. Martin, (10 G.) 76 245. 878. Copies of records of our courts, attested by the clerk, are conclusive evidence of the existence and nature of the record, although the seal is not affixed. Ladd v. Blunt, 4 403; Comm. v. Phillips, (11 P.) 28 38; Chamberlin «. Ball, (15 G.) 81 352. 879. A conviction of an offence cannot be proved by an unofficial copy of the clerk's docket, supported by the copyist's oath. Comm. v. Brooks, (9 G.) 75 299. 880. On the hearing of an appeal from the common pleas, the certificate of the presiding judge,' filed by his order, and stating his instruc- tions to the jury, is admissible upon the ques- tion of costs. Holmes «. Leland, (1 G.) 67 625. 881. A copy of a warrant issued by a police court, certified by the clerk, is sufficient evi- dence that it was under seal. Comm. v. Ballou, 112 279. 882. A copy of the record of a municipal court, furnished on appeal to the superior court, is sufficiently attested by the addition of the word " clerk" to the clerk's signature. Comm. «. Belou, 115 139; Comm. o.Barry, 115 146i 883. On, appeal from a decision of a justice of the peace, a copy of the proceedings, certified by him, is the only competent evidence of them. Comm. «. Doty, (2 Met.) 43 18. (See, also, Appeal, IV; V, (2).l 884. A paper, certified by a justice of the peace to be a copy of a record, is admissible, although made by him after the loss of the original. Tillotson v. Warner, (3 G.) 69 574. 885. In an action by an indorsee of a note against the maker, the plaintiff may give in evi- dence an execution, upon which shares trans- ferred by the maker as collateral security were sold, without proving the judgment; but not a copy of the writ, on which the shares were at- tached, left with the transferee. Potter®. Tyler, (2 Met.) 43 58. 886. A party, other than the bankrupt or his assignee, who relies upon the bankruptcy of a person, cannot prove the act of bankruptcy by the certificate of the bankrupt, or certified copies vency. of the oath of the petitioning creditor, and of the commission and assignment. Waterman v. Robinson, 5 303. 887. The testimony of the clerk of a commis- sioner in insolvency, that he drew the assign- ment of an insolvent debtor, and kept no copy of it, but that the blank produced by him was the same used, and is filled up by him from the minutes on his docket, and he believes it to be correct, sufficiently proves the copy. Brigham «. Coburn, (10 G.) 76 329. 888. As to a certificate by a clerk in insol- Boardman v. Kibbee, (10 C.) 64 545. 889. A copy of a foreign judgment record, attested by the reputed clerk of the court, and accompanied with an affidavit of the person, who assisted him in comparing the copy and affixing the seal, is evidence. Buttrick v. Allen, 8 273. 890. A copy of a record of a foreign judg- ment suffices, without the antecedent proceed- ings. Bathbone «. Rathbone, (10 P.) 27 1 891. The mode of authenticating records of the courts of other states, prescribed by the U. S. statute, is not exclusive; and under G. S., Ch. 131, § 61; P. S., Ch. 169, § 67, a copy of the record of a territorial court is admissible, although the clerk's certificate does not state that he has the custody of the record, and there is no certificate of a judge that the clerk's cer- tificate is in due form. Kingman v. Cowles, 103 283. 892. As to the sufficiency of attestation of the judgment of a court of another state, where it has been abolished, and its jurisdiction trans- ferred to another court. Capen v. Emery, (5 Met.) 46 436. 893. A duly certified record of a judgment in another state against an inhabitant of this Com- monwealth, which contains a summons and an officer's return that he had served it on the de- fendant, will support an action here, although the defendant produces another certified copy of the record, containing no summons or return. Barringer «. King, (5 G.) 71 9. 894. Where the foreign statute provides, that upon filing a transcript of a magistrate's judg- ment in the circuit court, the clerk of that court shall enter it in his docket, that clerk is the proper certifying officer. TJpham v. Damon, (12 A.) 94 98. 895. As to the sufficiency of proof by trans- cript of a judgment record of a court of com- mon pleas in Pennsylvania. Brainardu Fowler, 119 262. Of a district court of California. Boswell v. Cutter, 117 69. Of the supreme court of New York, under the code of procedure of that state. Knapp o. Abell, (10 A.) 92 485. 896. A judgment in one suit is not evidence in another, unless the same parties or their privies, are, in both suits, litigating in regard to the same subject of controversy. Barney «. Tourtellotte, 138 106; See, also, Burlen v. Shannon, (3 G.) 69 387; Hubert ». Pera, 99 198; and Estoppel, II, (1). 500 EVIDENCE, VIII, (2), (3). 897. Thus a decree of the probate court, under P. S., Ch. 147, § 33, that a wife is living apart from her husband for justifiable cause, is not evidence in favor of the plaintiff, in an action for necessaries furnished to her. Barney v. Tourtellotte, 138 106. 898. A decree of the probate court, admitting a will to probate, is not admissible as evidence of the testator's capacity in a bill in equity, by one who is a devisee and executor, to set aside a deed of the testator to a third person, on the ground of incapacity. Brigham v. Fayerweather, 140 411. (3.) Otber public records. [See, also, ante, VII, (2).] 899. Before the statute making the printed volumes of the statutes evidence, the only mode of proving a private statute of the Common- wealth was by an exemplification thereof. Kennebeck Purchase «. Call, 1 483. 900. A copy of an order, by which money has been drawn from the treasury of the Com- monwealth, although sworn to by the treasurer, is not evidence, unless the original is shown to be lost. Torrey v. Puller, 1 534. 901. A copy, printed by authority of the senate of the United States, of a public docu- ment, communicated to the senate by the presi- dent, is as competent evidence as the original. Whiton v. Albany Ins. Co., 109 24. 902. A copy of the certificate of organization of a U. S. national bank, certified to by the comptroller of the currency, and authenticated by his official seal, is evidence in a state court, under the acts of congress. Tapley ». Martin, 116 275. 903. The clerk of a city or town is the pro- per certifying officer to authenticate copies of the votes, ordinances, and by-laws, and his signature need not be verified. Comm. ■». Chase, (6 C.) 60 248. See, also, Comm. v. Shaw, (7 Met.) 48 52. 904. Copies of the record of a chattel mort- gage, and notice of intention to foreclose the same, are prima facie evidence of recording or filing, but not of the mortgage, unless the per- son producing them has not the original. Pierce «. Gray, (7 G.) 73 67; Morton v. "Webster, (2 A.) 84 352; Barnard v. Crosby, (6 A.) 88 327. [ A s to the proof, by town or parish records, of the taking of an official oath, see ante, arts. 456, 457.] 905. A town clerk's record, kept under St. 1863, Chs. 65,229, of the soldiers who composed the town's quota, is competent, but not exclu- sive evidence of the facts, including enlistments and payments of bounties. Wayland v. Ware, 104 46; Hanson v. So. Scituate, 115 336. 906. Where the record of a parish, unat- tested by the clerk, was received in evidence without objection, the objection cannot be taken afterwards. West Springfield Par. v. Root, (18 P.) <>& 318. 907. On a question of settlement, by residence and payment of taxes in a city, the judge may in his discretion, require the town contesting to show by the city treasurer's records, the as- sessment and payment of taxes, before resort- ing to oral testimony; but they are not conclu- sive. Robbins v. Townsend, (20 P.) 37 345. 908. The record of registered letters at a post-office is evidence, without the testimony of the clerk who kept it. Gurney v. Howe, (9 G.) 75 404. 909. A deed to a party, or otherwise pre- sumed to be in possession of either the party offering it, or the adverse party, cannot be- proved by the registry, without the usual foundation for secondary evidence; but a deed to one not a party, although he is within the ju- risdiction, may be proved by a certified copy from 'the registry, without proof of execution. Eaton ». Campbell, (7 P.) 24 10- Scanlan e. Wright, (13 P.) 30 523- Ward®. Puller, (15 P.) 32 185; Stetson e. Gulliver, (2 C.) 56 494; Blanchard *. Young, (11 C.) 65 341; Comm. v. Emery, (2 G.) 68 80; Thacher «. Phin- ney, (7 A.) 89 146; Samuels «. Borrow- scale, 104 207; Stockwell «. Silloway, 105 517. See, also, Tucker «. "Welsh, 17 160. 910. The rule extends to a deed to a party's. grantor. Thacher®. Phinney, (7 A.) 89 146. 911. The same rule applies to chattel mort Barnard «. Crosby, (6 A.) 88 327. See, also, Pierce e. Gray, (7 Or.) 73 67. 912. An office copy of a lost deed is good secondary evidence in favor of the grantee. Perkins i>. Richardson, (11 A.) 93 538. 913. Semble, that an office copy of a deed to a common ancestor is admissible, if there is no- reason to suppose it is in possession of one party rather than the other. Burghardt v. Turner, (12 P.) 29 534. • 914. A defeasance, recorded without being acknowledged, may be proved by an office copy, against the person in whose favor it was. made, after notice to produce it, and the objec- tion that it is a copy of a copy will not hold. Stetson v. Gulliver, (2 C.) 56 494. 915. Where an office copy of a deed by a cor- poration is evidence, proof of the officer's au- thority is not necessary. Chamberlain «. Bradley, 101 188. 916. An office copy of a plan, filed with the surveyor's oath, in the office of the secretary of another state, pursuant to a resolution of the legislature thereof, is evidence here; but not. unless it was so verified. Smith e. Strong, (14 P.) 31 128. 917. Upon trial of an indictment for falsely swearing that the defendant owned a dwelling- house, the testimony of one who has examined the indices to the registry of deeds, that he has found no conveyance to the defendant, is admis- sible. Comm. «. Hatfield, 107 227. EVIDENCE, VIII, (3), (4). 501 918. A certificate by a public officer, that cer- tain facts appear from the records of his office, without giving a transcript of the record, is in- admissible. Wayland v. Ware, 109 248; Hanson v. South Scituate, 115 336. 919. Thus the certificate of the city clerk of Boston, that the plaintiff had been duly ap- pointed master of the house of correction, is not evidence of the fact. Bobbins v. Townsend, (20 P.) 37 345. 920. The same rule applies to the certificate of the recording officer of a corporation. Oakes ». Hill, (14 P.) 31 442. 921. The books of the assessors of taxes are admissible to rebut a claim of adverse posses- sion, by showing that the land was assessed to the grantor of the other party. Elwell ». Hinckley, 138 225. 922. So upon a question of insanity, to show that it was assessed to the gaardian. Edson v. Munsell, (10 A.) 92 557. (4.) Book accounts and entries; memo- randa. [As to refreshing a witness's recollection t>y ref er- ence to his entries, see Withess, V, (3).] 923. Books of account of a party, to prove items of work done and goods delivered, when supported by his own oath, or, if he is dead, the oath of his executor or administrator, are admissible in evidence. It is for the court to decide whether the book offered is admissible, but the weight to be given to it is for the jury; and the decision of the court thereon is final, unless from its character, or from that which is sought to be proved by it, it could not have been admitted, if it met the legal tests. Pratt . Augusta, etc., Ins. Co. , (10 G.) 76 312; Parsons v. Manuf. Ins. Co.,(16G.) 82 463. 965. Where a party refuses to produce his books upon notice, a pass-book, with entries by two of his clerks, which was always open to his inspection, is evidence, upon the testimony of one clerk as to the correctness of his entries, and that the other is out of the jurisdiction. Coolidge v. Brigham, (5 Met.) 46 68. 966. The books of the adverse party are evi- dence for the party calling for them, without calling the clerk who made the entries. Watson v. Phoenix Bk., (8 Met.) 49 217. 967. Where books and schedules of assets and debts are put in evidence, the judge may permit an accountant, who has examined them, to give the results of his computation, not in- volving his inferences. Jordan i>. Osgood, 109 457. See Boston &W.Eaflroad«). Dana, (1 G.) 67 83. 968. The entries of a bank messenger in his book are admissible in evidence to prove notice of nonpayment, where he has absconded, or where his testimony cannot be obtained, and the cashier may explain, that a check-mark, opposite an indorsees name, means that notice was given to him. North Bk. v. Abbot, (13 P.) 30 465. See, also, Shove ». Wiley, (18 P.) 35 558. ~i£ s *° entries by a deceased person in the course or tug duty or employment, see ante, I, (6).] (6.) miscellaneous rr lings. 969. in an action to recover for hay, the cer- tificate of the official weigher's assistant is not admissible, even in connection with the weigh- er s testimony, to show that the hay was weighed for the desendant. Prew «. Donahue, 118 438. 970. That a deed contains recitals which are msulmissible, as being the declarations of a stranger, is no reason for excluding the deed, " it is itself evidence of title. Warshauer v. Jones, 117 345. 971. Where two persons make and sign a survey or an appraisal, and only one is examined as a witness, and testifies to its correctness, it is inadmissible. Comm. b. Eastman, (1 C.) 55 189; Cunningham v. Hall, (4 A.) 86 268. 972. As to the admisibility of a certificate, where the witness or witnesses have no present recollection of the facts certified to. Smith v. Johns, (3 G.) 69 517, and other cases, ante, VIII, (4). 973. It is not improper, to read extracts from the records of the original proprietors of com- mon lands to the jury, the records themselves being in court, and open to the use of the adverse party. Davis v. Mason, (4 P.) 21 158. 974. Where a committee of the proprietors of a township lay out, by metes and bounds, a lot to B, on the original right to A, and it is recorded in the proprietors' books, and no adverse claim to the lot is made for more than 30 years, this is prima facie evidence of regu- larity, although there is no other evidence that A was a proprietor. Spurr n. Bartholomew, (3 Met.) 43 479. 975. The certificate of the recording officer of a religious, or other corporation, to his records, is evidence; but not to facts connected with the corporation. Oakes v. Hill, (14 P.) 31 442. 976. In an action to recover the price of cer- tain railroad shares, sold by the plaintiff to the defendant, or damages for nonfulfilment of a contract to purchase the same, the certificate of the proper officer of the company, that the de- fendant is the owner of the shares, is prima facie evidence of the transfer to him, without production of the stock leger or book of trans- fers. Thompson v. Alger, (12 Met.) 53 428 977. In an action by the payee against the acceptor of an order, where the words, " to be paid out of the iast payment," were written above the acceptance, a written contract between the acceptor and the drawer, for the building of a house, and a conversation between them and the architect, referring to the contract, which occurred before the acceptance, are admissible to construe the acceptance. Proctor ■». Hartigan, 139 554. [See, also, Order.} 978. In an action upon a note made by the defendant's intestate, the defendant cannot put in evidence the intestate's entries relating to the note, showing payment thereof, not in an account book, but in a diary. Costelo «. Crowell, 139 588. 979. Upon the trial of a writ of entry, it is within the discretion of the judge to allow a plan to be exhibited to the jury, and to allow a witness to testify, that the lot he sold was No. 2 on such plan, although the plan is not referred to in any of the deeds, where the object is merely to show the situation of the lot in ques- tion, generally and with reference to other lots, and not to define its courses and boundaries. Barrett v. Murphy, 140 133. 980. Where, upon such a trial, a surveyor produces a plan, which he had made from deeds 504 EVIDENCE, IX, (1), (2). given by the common grantor of the parties, he may he asked, on cross examination, whether the line claimed by the tenant corresponds with the existing fences. Barrett v. Murphy, 140 133. IX Evidence as to particular Subjects. [For additional rulings upon these and other sub- jects and Questions, see, ante, passim, and the titles of those subjects and questions respectively, and of the actions, crimes, and transactions, out of which they arise.] (1.) Character) reputation. [For rulings as to impeachment of and sustaining a witness, see Witness, IV.] 981. Upon an indictment for enticing a woman of previous chaste life and conversa- tion into a house of ill fame, for the purpose of prostitution, the burden is upon the govern- ment to prove her chastity; and a ruling that she is presumed to have been chaste, is erroneous. Comm. «. Whittaker, 131 224. 982. In slander, the plaintiff's character may be impeached in mitigation of damages, but only by an inquiry into his general character for integrity and moral worth, or for conduct similar to that with which he was charged. Leonard «. Allen, (11 C.) 65 241. 983 But where a witness testifies that the plaintiff's general character is bad, or that some speak well and some ill of him, he may be cross examined as to the particulars; but another witness cannot be called to testify that he never heard of one of the particulars. Leonard v. Allen, (11 C.) 65 241. 984. Upon an indictment for fast driving, evidence of the defendant's general character as a careful driver is inadmissible. Comm. v. Worcester, (3 P.) 20 462. 985. Upon an indictment for murder, testi- mony as to the defendant's good character is admissible, although entitled to less weight than in offences of a lower grade. Comm. v. Hardy, 2 303; Comm. ®. "Webster, (5 C.) 59 295. 986. In a criminal cause, evidence of the de- fendant's general bad character is inadmissible for the government, until the prisoner has at- tempted to support his general character. Comm. ■». Hardy, 2 303. 987. In such a case, the government cannot, in reply, give evidence of particular facts. Comm. v. Hardy, 2 303; Comm v. O'Brien, 119 342. 988. But if the defendant introduces evi- dence that, before the offence was committed, his general character was good, the government may show that since that time it has been bad. Comm. v. Sacket, (22 P.) 39 394. 989. In malicious prosecution, evidence of the plaintiff's bad character is admissible, to re- but proof of want of probable cause, and also in mitigation. Bacon v. Towne, (4 C.) 58 217. 990. In a civil action resting upon a charge of fraud, evidence of general reputation for honesty and integrity is inadmissible. Hey wood «. Reed, (4 G.) 70 574- Atwood v. Dearborn, (1 A.) 83 483. ' 991. Where a woman has acquired a bad character, from her seduction by the defendant, under a promise of marriage, he cannot avaii himself of it, in an action for a breach of the promise. Boynton «. Kellogg, 3 189. 992. Where a man, sued for his wife's board, defends on the ground of her desertion and adultery, evidence that, while living apart from him, she received the visits of two men, is not sufficient to let in evidence that their reputation for chastity is bad. Clement v. Kimball, 98 535. 993. On the issue whether a man's reputation for pecuniary credit was good, the testimony of a witness who says he never heard it called in question, except by members of his firm, is inadmissible. Walker v. Moors, 122 501. 994. Where one employed by a railroad com- pany, and to whose negligence an accident is due, is an habitual drunkard, evidence of his reputation as such is competent against the company, to show that his habits ought to have been known to the officers. Gilman v. Eastern R. R., (13 A.) 95 433. 995. In assault and battery, where the de- fendant contends that the plaintiff was drunk at the time, and cross examines him in relation thereto, and he admits that he has been con- victed of drunkenness a few days before the trial, he cannot show his general reputation for sobriety in rebuttal. McCarty v. Leary, 118 509. 996. As to evidence of habits of intoxication, at different times from that when the question arose, see Flint v. Hubbard, (1 A.) 83 252. 997. The old rule, that evidence of good character is not to be considered by the jury in a criminal cause, unless the other evidence leaves their minds in doubt, is no longer the law. Comm. v. Leonard, 140 473. C20 Handwriting. [See, also, ante, I, (4).] 998. One who has seen the party write, al- though but once, either before or after the date of the writing in question, may give his opinion as to whether a particular instrument is or is not genuine. , „ Keith v. Lothrop, (10 C.) 64 453; Comm. v. Nefus, 135 533. See Brig- ham «. Peters, (1 G.) 67 139, as to the question whether the witness sufficiently identified the genuine signature. 999 A comparison by the jury of a disputed handwriting with other writings of the person, proved to be genuine, is one of the methods re- cognized in tl is Commonwealth, to determine the genuineness of the paper in question. EVIDENCE, IX, (2).- 505 Hall v. Huse, 10 39; Homer v. Wallis 11 309; Salem Bk. v. Glouces- ter 17 1; Moody v. Bowell, (17 P.) 34 490; Richardson v. Newcomb, (21 P.) 38 315; Cabot Bk. v. Russell, (4 G.) 70 167, (Jomm. i>. Coe, 115 481. 1000 A disputed signature, a letter-press im- pression, or a duplicate made by a copying ma- chine, is not a proper standard. Comm. v. Eastman, (1 CM 55 189; Bacon v. Williams, (13 G.) 79 535. But magnified photographic copies of all the the papers may be used. Wcy«. Barnes, (16 G.) 82 161. 1001. The competency of an expert to testify as to the identity of handwriting with an es- tablished standard, depends very much upon the discretion of the judge, whose decision can- not be reviewed, unless founded upon error in law, or insufficient or improper evidence. Comm. n. Coe, 115 481; Comm. 1>. Nefus, 135 533. 1002. So, where the judge finds that a signa- ture, offered as a standard for comparison by the jury, is genuine. Costello v. Crowell, 133 352. [See further as to experts, ante, I, (4). 1003. A person, who has seen the party write once, and for 20 years has been accustomed to compare manuscripts, and handwriting, and penmanship, is competent to give an opinion as to whether certain communications in cipher are in the party's handwriting. Comm v. Nefus, 135 533. 1004. One, who has written letters to the per- son whose signature is in question, and has re- ceived answers, upon which both have acted, may prove his handwriting. Russell v. Coffin, (8 P.) 25 143; Chaffee «. Taylor, (3 A.) 85 598. 1005. But not unless the letters have been acted upon. McKeone «. Barnes, 108 344; Nunes v. Perry, 113 274. 1006. A person, who has become familiar with another's handwriting, in the course of his busi- ness, as a clerk of a court, with respect to a jus- tice's signature, or one accustomed to bills of a particular bank, with respect to the president's signature; may testify thereto, although he has never seen hint write, even where the issue is forgery. Comm. v. Carey, (2 P.) 19 47; Am- herst Bk. v. Root, (2 Met.) 43 522. 1007. But the teller of a bank, who has paid many checks, purporting to be drawn by a de- positor, cannot identify his signature, where the question is whether some of those very checks were forged. Brigham v. Peters, (1 G.) 67 139. 1008 If a son, whose deposition is taken, gives his opinion as to the genuineness of his iataer Si signature, without first showing his lamuiarity with the latter's handwriting, the ptfler party cannot object, as he' should have interrogated the witness, if he had any doubt thereupon. J Moody v. Rowell, (17 P.) 34 490. »il°?t 9 ' ^ faot ihat one - wh ° testifies to the signature of another, himself cannot read or Vol. I — 61 write, goes to the weight, not the competency, of his testimony. Poye ». Patch, 132 105. 1010. In an action upon a note, where the plaintiff reads to the jury a mortgage, delivered with the note, and produced by the defendant, the defendant cannot, without proof of the execution of the mortgage, submit it to the jury, for the purpose of showing, by compari- son of hanus, that the subscribing witness, who is without the jurisdiction, forged the defend- ant's signature. Martin *. Maguire, (7 G.) 73 177. 1011. And the plaintiff, charged with having forged a note in suit, cannot introduce speci- mens of his handwriting, for comparison by the jury. Keith v. Lothrop, (10 C.) 64 453. 1012. Where the plaintiff adduces evidence that the body and the signature to a note are in the defendant's handwriting, the latter may adduce evidence to show the contrary. Keith v. Lothrop, (10 C.) 64 453. 1013. A party is not entitled to write his sig- nature in the presence of the jury, or to use his signature, post litem motam, for the purpose of comparison by the jury, with a signature, the genuineness of which is in controversy; but semble, that the judge may, in his discretion, so direct. King v. Donahue, 110 155; Comm. v. Allen, 128 46. 1014. On the trial of an indictment, if the defendant, testifying in his own behalf, admits the correctness of an expert's explanation of certain commnnications in cipher, he has no ground of exception to the admission of the expert's testimony. Comm. v. Nefus, 135 533. 1015. And where the key to the cipher is explained by the expert, with respect to certain letters, another communication, testified to be in the defendant's handwriting, may be read by the same key. Comm. v. Nefus, 135 533. 1016. And a witness may be contradicted by a communication in cipher, which she deuies she wrote, but which an expert declares is in the same handwriting as other manuscripts, as to which there is direct evidence that she wrote them. Comm. v. Nefus, 135 533. 1017. One, who has acquired spicial experi- ence in the study and comparison of handwrit- ings, may testify as an expert as to the genuine- ness of a signature, without having seen the person write. Moody v. Rowell, (17 P.) 34 490; Comm. v. Williams, 105 62; Demerritt D.Randall, 116 331. 1018. So whether a particular signature is in a natural or simulated hand. Moody v. Rowell, (17 P.) 34 490. 1019. So whether anonymous letters, written in a disguised hand, were written by a defendant on trial for a crime. Comm. v. Webster, (5 C.) 59 295. 1020. So whether certain words were written before or after the paper was folded. Bacon v. Williams, (13 G.) 79 525 506 EVIDENCE, IX, (2), (3). 1021. So whether the whole instrument was written at the same time. Quineigamond Bk. «. Hobbs, (11 G.) 77 250; Jewett a. Draper, (6 A.) 88 434. 1022. So as to what is the real date, if the figures are obscure. Stone v. Hubbard, (7 C.) 61 595. 1023. But not as to how much & man can improve his handwriting in a short time, McKeone v. Barnes, 108 344. 1024. Nor whether certain parts of a letter, which he has stated were not made with a pen, were made with a peculiar instrument found in the defendant's possession. Oomm. v. Webster, (5 C.) 59 295. (3.) Identity. 1025. Any person is competent to express an opinion upon a question of identity, as applied to persons, things, or handwriting. Comm. «. Sturtivant, 117 122. 1026. In a criminal cause, a witness asked who did the act in question, may properly point to the defendant, and answer, "that man." Comm. ■». Whitman, 121 361. 1027. An officer testifying in a criminal cause, and asked what he did when informed of the offence, may properly answer that he started to look for the prisoner. Comm. ■». Moulton, (4 G.) 70 89. 1028. But he cannot be asked who, he was informed, committed the offence. Comm. ». Moulton, (4 G.) 70 39. 1029. Nor can it be shown that the person robbed described the robber to the officer, and in consequence of that description, the officer went in search of the prisoner. Comm. v. Fagan, 108 471. 1030. Nor where a witness has sworn that he saw the defendant coming out of the room, where the body of the person murdered was found, can the Commonwealth show, by other witnesses, that he immediately gave the alarm, and stated the fact. Comm. v. James, 99 438. 1031. On an indictment for forgery of an ap- peal bond, the government may show who the person was, who represented himself to be the surety, and? that his statements as to his resi- dence, property, etc., were false, although the defendant admits that the name was fictitious. Comm. ». Costello, 120 358. 1032. On an indictment for murder, where a witness testified that he saw the prisoner jump out of a window, at about the time of the murder, and pointed out the window to an offi- cer, the government may show by the officer what window was so pointed out. Comm. v. Piper, 120 185 1033 On an indictment for a rape, where there is evidence of a fresh pursuit of the offender, from the prosecutrix's description of his person and his clothes, and of inquiries by the pursuer, the testimony of the person, of whom the inquiries were made, is admissible for the defendant, to show that the clothes so de- scribed differed from those then worn by him Comm. v. Reardon, (4 G) 70 420. 1034. Where the only question is as to the identity of the prisoner with the guilty person the jury may return a verdict of guilty, although no witness swears positively to the identity. Comm. v. Cunningham, 104 545, 1035. Where a witness testifies that he inden- tified the prisoner by his voice, the latter, not being a witness, is not entitled to repeat some- thing in the presence of the jury to rebut this testimony. Comm. v. Scott, 123 222. 1036. Identification by the voice, where the witness had heard the defendant talk only once before, is competent to be considered with the other circumstances, but the jury may be prop- erly instructed not to convict upon that circum- stance alone. Comm. ». Williams, 105 62; Comm. v. Hayes, 138 185. 1037. For various rulings upon the subject of identification by the voice, under the pecu- liar circumstances of the particular case, see Comm. v. Annis, (15 G.) 81 197; Comm. v. Williams, 105 '62; Comm. t>. Hayes, 138 185. 1038. Where a witness, present at the com- mission of an offence, testifies that the offender "looked pretty near like "the defendant, but the witness cannot swear that he was the de- fendant, there is not a sufficient identification. Comm. v. Snow, (14 G.j 80 385. 1039. For a similar case, except that the wit- ness " thought " the person was the defendant, where a verdict of guilty was sustained, see Comm. v. Munsey, 112 287. 1040. Testimony that a watch-dog, shut up in an adjoining house, did not bark when the offence was committed, is not evidence that it was committed by an inmate of the house, although it is shown that he usually barks when strangers pass, and not when inmates Comm. o. Marshall, (15 G.) 81 202. 1041. Testimony that on the morning after a larceny was committed, the witness saw two men drive to a house where the goods were found, carry in a trunk, and then drive away, and that both were about the size of the de- fendant, although he did not know them, is competent, but not sufficient of itself. Comm. v. Annis, (15 G.) 81 197. 1042. Where dying declarations have been admitted against the defendant, he may show that the deceased was in the habit of mistaking persons whom he knew, and confounding them with others. Comm. v. Cooper, (5 A.) 87 495. 1043. Upon an indictment, a witness may testify that he sold to the defendant, a few days before the crime was committed, articles of clothing, like those left by the offender at the scene of the crime, there being other evi- dence to charee the defendant. Conum*. Scott, 123 222. 1044. As to what is sufficient evidence to go to the jury, as to the identity of certain buis EVIDENCE, IX, (3), (4). 507 found upon the defendant, with those which were the subject of a robbery, there being also a wound upon his person, corresponding with one inflicted upon the robber by the person Comm. v. Tolliver, 119 312. 1045. So as to certain scrip, found in the house of a murdered man, and alleged to scrip similar to that passed by the defendant on the same day. Comm. v. Sturtivant, 117 122. ship timber or set apart they cannot a schedule and had no at the time 1046. Where certain articles of were sold without being scheduled, from other timber of the same kind be identified by one, who made thereof several months afterwards, present recollection of the articles of the trial. Glover v. Hunnewell, (6 P.) 23 1047. Where a witness, whose deposition is taken, testifies to the presentment of a bill of exchange to the acceptor, for payment, and annexes a copy thereof to his deposition, the deposition is competent, and the copy of the bill conclusive, unless one of a different tenor is produced. Sabine v. Strong, (6 Met.) 47 270. 1048. The deposition of a subscribing wit- ness to a chattel mortgage, who saw the prop- erty, is admissible to indemnify it, although neither the mortgage, nor a copy thereof, is annexed to the deposition. Newcomb «. Noble, (10 G.) 76 47. (4.) Intent; motive. [See, also, ante, VI; Domicxl; Fraud, IV, (2); Insobvent, IX, (2) ; Libel ahd Slakdeb, III; Ma- licious Prosecution, I, (2).] 1049. Wherever a person's intent, in doing an act, is in issue, his declarations, at the time of doing the act, are evidence thereof, as part of the j as gesta; but his subsequent declarations are not evidence in his favor, or between third persons. Davis v. Spooner, (3 P.) 20 284 Richards o. Humphreys, (15 P.) 32 133 Thorndike v. Boston, (1 Met.) 42 242 Kilburn v. Bennett, (3 Met.) 44 199 Goodhue v. Hitchcock, (8 Met.) 49 62, Salem ». Lynn, (13 Met.) 54 544; Cole v. Cheshire, (1 G.) 67 441; Eeeder v. Holcomb, 105 93. 1050. Wherever a person's intent is in issue, he, being a witness on the stand, may testify as to his intent. Fisk v. Chester, (8 G.) 74 506; Lom- bard e. Oliver, (7 A.) 89 155; Reeder v. Holcomb, 105 93; Snow v. Paine, 114 520; Weil v. Golden, 141 364. 1051. The rule extends to questions of good taitn malice, the purpose with which an act was done, the party's understanding, intention, or supposition, and the like. Smith e. Higgins, (16 G.) 82 251; lhacher v. Phinney, (7 A.) 89 146; wase «. Brown, 104 291: Perry v. Porter, 121 522; Davis v. Coburn, 128 377. 1052. Upon the question of good faith, the advice of counsel may be given in evidence by the party. Robinson e. Wadsworth, (8 Met.) 49 67; Allen v. Leonard, (16' G.) 82 202. 1053. In an action against an agricultural so- ciety, for injury at a race, by the defendant's negligence in allowing a horse and sulky on the track, the defendant's marshal, who testi- fied that he saw the horse and sulky driven on the track, just before the accident, and made no attempt to stop them, cannot be asked why he did not attempt it. Goodale v. Worcester Aerr. Soc, 102 401. 1054. Upon an indictment, the government may show that the defendant had a peculiar motive to. commit the crime charged. Comm. «. Hudson, 97 565; Comm. «. Bradford, 126 42. 1055. Where, in order to show malice against one whose barn was burned, the government proved, upon an indictment, the institution by a person implicated with the defendant, of a criminal prosecution against him, and his dis- charge, the defendant cannot show, in reply, that the prosecution was well founded. Comm. v. Vaughan, (9 C.) 63 594. 1056. Where one is on trial for perjury in a criminal cause, and the government shows, that a reward had been offered for the detection of the criminal in that cause, the defendant, to rebut the alleged motive, may show that he attended reluctantly, and came from another state, at the request of the injured person. Comm. «. Brady, (7 G.) 73 320. 1057. Upon the question whether a change of abode, from one family to another, was induced by improper influence, evidence of discomforts avoided, and comforts gained by the change, is admissible. Brown e. Brown, 108 386. 1058. Upon the question whether a receipt was altered by the defendant, evidence on his part that it was in the same condition, soon after it was signed, is competent to disprove a motive for the alteration, as well as upon the main issue. Burnham v. Parkhurst, 108 341. 1059. In assault and battery for blows struck, while adjusting an account, evidence of how much was due and how much was paid, is competent. Blake v. Damon, 103 199. 1060. In slander, for charging the plaintiff with stealing a deed of a farm, where the defendant proves that, on the charge being made, the plaintiff reconveyed the land to him, by a deed reciting an " improper delivery " of the former deed, the plaintiff may reply by proof that a friend advised him to make the reconveyance, to avoid the expense of a law suit. Sperry v. Wilcox, (1 Met.) 42 267. 1061. Where a grant is given of the right to build a dam, the parties agreeing that the dam- ages occasioned by flowing the grantor's land shall be determined by arbitrators, and be received in full satisfaction, etc., the grantee cannot, after completing one dam, afterwards 508 EVIDENCE, IX, (4), (5). increase the height, upon evidence that he irtended it only as the beginning of <* higher dam. Goodrich v. Longley, (4 G.) 70 379. 1 062 The declarations of a grantee, although s party to the suit, are not admissible, that part oi the property included in the deed was not irtended to be conveyed^ but they are admissi- ble to show that a parcel was included by mis- take Faint v. Mclntier, 1 69; Leland v. Stone. 10 459. 1063. The admissions of a party to an award, a> tc the arbitrator's intent and meaning, are incompetent. Clark v. Burt, (4 C.) 58 396; Parker v. Parker, 103 167. LSee Abbitbation, V, (5).| 1064. An officer, indicted as an accessory to a buiglary. may. for the purpose of explaining his intercourse with the principals, and to show his own diligence and fidelity, give in evidence his own conversations with anothei officer, as to gaining their confidence, and thereby bring- ing them to justice. Comm. v. Robinson, (1 G.) 67 555. 1065. A defendant in a criminal cause, against whom evidence is given, that upon his arrest he gave a false account of himself, cannot show that upon other and previous occasions, he had given a true account of the same matters. Comm. v. Goodwin, (14 G.) 80 55. (5.) Time. LSee, also, ante, I, (2); 1, (3) ; and art. 218.1 1066. On an indictment for burning a build- ing, the defendant's threats .against the owner, two years previously', are admissible. Comm. v. Goodwin, (14 G.) 80 5b. 1067. But on an indictment for murder by poison, given to produce a miscarriage of the woman killed, evidence of the defendant's ap- plication foi information as to the means of procuring a miscarriage, made two years pre- viously, is not admissible. Comm. v. Hersey, (2 A.) 84 173. 1068. On an indictment for procuring an abortion by an instrument, evidence of the de- fendant's possession, five months previously, of an instrument suitable for the purpose, is ad- missible. Comm. ». Blair, 126 40. 1069 Ii is not competent, for the purpose of showing the effect of ardent spirits upon the plaintiff, as a justification for violence in ar- resting him, while intoxicated, that a year af- terwards, he was very violent when intoxi- ' Eliis v. Short, (21 P.) 38 142. 1070. In an action against a railroad com- pany , f oi injury to a man while delivering wood by the track, the plaintiff, having proved that there waB then j* travelled crossing at the place, may oe refused permission to prove that there was such a crossing previously, and at the time ot the trial Robinson v. Fitchburg & W R ft m G.) 73 92. ■ n " lT 1071. Subsequent acts of the parties are ad- missible to prove an agreement, giving the right tc remove a building standing upon another's land. Howard v. Fessenden, (14 A.) 96 124- Morris «. French, 106 326. See also' Gibbs v. Estey. (15 G.) 81 587 ex- plained in the latter case. 1072. Upon the question, whether a bankrupt was insolvent, at the time of the sale of goods to him, his schedule of assets and debts are not competent against his assignee, in the absence of evidence that his circumstances had not changed since the sale. Hosmer ». Oldham, 122 551. 1073. Arranging a transaction, so as to fur- nish facilities for fraud, is evidence to show that a fraud, committed long afterwards, was originally contemplated. Lynde «. McGregor, (13 A.) 95 172. 1074. For the purpose of showing that the plaintiff took a note in suit, after maturity and with notice, evidence of acts and declarations of the plaintiff's agent, two or three years be- fore the date of the note, with reference to other notes not connected with it, is incompe- tent. Elliott v. Lyman, (3 A.) 85 110. 1075. Upon an issue as to the meaning of "drop-feed sewing machines," in a license to use a patent tor such machines, evidence as to what machines were thus known in the trade, before the date of the license, is inadmissible. Florence S. M. Co. ■». Grover& B. 8. M. Co., HO 70. 1076. In an action by a mother against her two sons, for money paid to their use, where one of the -def endants contended and testified, that it was paid to the use ot the other evi- dence that the plaintiff, in former years, paid money for him, and gave him the use of her farm, is inadmissible to contradict him. Farnum ". Farnum, (13 G.) 79 508. 1077. Evidence that one was a skilful car- penter and joiner ten years previously in Mas- sachusetts, or to show the relative value of the labor of a good architect, and an ordinary joiner, is incompetent upon the question of the value of his recent labor in erecting a building in Illinois. Shepard v. Ashley, (10 A.) 92 542. 1078. In an action upon a policy of insurance upon a building containing straw, the defend- ants cannot, "for the purpose of showing the condition of the straw at the time," prove that, three weeks previously, a bonfire was made by boys outside the building, with a trail of straw from it to the building. White v. Springfield Ass. Co., (8 G.) 74 566. 1079. In an action to recover the value of the labor ot the plaintiff's intestate, for several years before his death, after the defendant has shown that his labor was worth little or nothing, by reason of his bodily disease and habits of in- temperance, the plaintiff cannot reply by prool as to the valuu of his labor the yeai before he, commenced working loi the defendant, ana EVIDENCE, IX, (5), (6). 50» that thereafter there was no visible change in > his health and habits. Graves v. Jacobs, (8 A.) 90 141. 1080. Inan action against an officer for arrest- ing a person without warrant, and detaining him till a warrant could be procured, a warrant obtained the next day, and the complaint there- on are admissible for the defendant. Mason v. Lothrop, (7 G.) 73 354. 1081. Where, upon a trial for unlawfully selling liquors on a certain day, the defendant's servant testifies that no liquor was sold on that day, he cannot be asked whether he had seen liquors there since. Comm. s. Page, (6 G.) 72 861. 1082. In an action for seizing a horse and wagon under St. 1855, Ch. 215, as .engaged in transporting liquors, the defendant cannot show that the plaintiff was engaged in selling liquor before the statute took effect. Kent «. Willey, (11 G.) 77 368. 1083. On an indictment for being a common seller of intoxicating liquors, the government, j or the purpose of proving that the defendant owned the house in question, may give in evi- dence his declarations made a year previously. Comm. v. Hildreth, (11 G.) 77 327. 1084. In replevin, upon the question whether the plaintiff's title is real or colorable, the plaintiff may prove that he paid for the goods, although after suit brought. Hosmer v. Moseley, (11 C.) 65 211. 1085. In trover, evidence of the value of the property four months before the conversion, is not toe remote. McAvoy v. Wright, 137 207. 1086. Evidence of the measurement of the highest slope, etc., of the adjacent ground, nineteen days after an accident, is admissible in an action for injury caused by a defective side- walk if there is no evidence of an intervening change. Berrenberg v: Boston, 137 231. 1087. Upon an issue of the undue influence of the wife of a testator, evidence of the rela- tions between them, eight or nine years before the will was made, is properly excluded. Batchelder v. Batchelder, 139 1. 1088. In an action against a city for an injury aU street crossing on Sunday, December 24, a witness may testify as to the condition of the crossing on a Sunday evening, between the middle and the last of December, which he examined in consequence of hearing that an accident happened tuere. Daniels v. Lowell, 139 56. 1089. Upon an issue of insanity at the time ot making a contract, it was held, that evidence oi the party's mental condition, eight montho afterwards, was rightly excluded. Wright v. Wright, 139 177. 1090. Where, in an action by a seaman against a shipowner, for the master's failure to put nim ashore, after his leg was broken, it was proved that the bones had not united nine- teen months afterwards, it was held that the forV"* 6 tC deCldt whether he was s cripple Danvir c. Morse, 139 328. (6.) Value. [For additional and parallel cases, upoa this ques- tion, see ante, I, (3) ; I, (4) ; IX, (5).] 1091. Whether a witness has sufficient knowl- edge to enable him to give an opinion as to value, is a question largely within the discretion of the presiding judge or officer; and his deci- sion thereupon will not be reviewed, unless there was an error of law in the preliminary examination, or the entire testimony is reported, for the decision of the appellate court. Paine v. Boston, (4 A.) 86 168; Shat- tuck i>. Stoneham Br. R. R., (6 A.) 88 115; Swan s. Middlesex, 101 173; Presbrey v. Old Colony, etc., R. R., 103 1; Lawton v. Chase, 108 238; Tucker v. Mass. Cent. R. R., 118 546; Law- rence v. Boston, 119 126; Chandler v. Jamaica P. Aqueduct 125 544; Patton t>. Bell, 141 197.' 1092. The same rule holds, where the value of land is sought to be proved by actual sales of other land in the vicinity. Wyman v. Lexington R. R., (13 Met.) 54 316- Boston & W. R. R. v. Old Col- ony, etc., R. R., (3 A.) 85 142; Shat- tuck i). Stoneham Br. R. R, (6 A.) 88 115; Ham «, Salem, 100 350; Benham v. Dunbar, 103 365; Green v. Fall River, 1 13 262; Gardner v. Brookline, 127 358. 1093. For cases where the ruling upon these questions was. reversed, see Paine «. Boston, (4 A.) 86 168; Chan- dler o. Jamaica Pond Aqueduct, 122 305. 1094 Where the value ot real property is in controversy, opinions of persons acquainted with it3 value are admissible in evidence, al- though they are not experts. This knowledge may be acquired, either by the performance of official duty, as by an assessor of taxes, or a selectman, whose duty it is tc lay out ways, or by knowing of sales and purchases of other lands in the vicinity, either by the witness him- self, or by others. Swan v. Middlesex, 101 173. See, also, Walker v. Boston, (8 C.) 62 279; Dwight v. Hampden Com'rs, (11 C.) 65 201; Shaw ». Charlestown, (2 G.) 68 107; Russell v. Horn Pond B. R. R., (4 G.> 70 607; West Newbury v. Chase, (5 G.) 71 421; Dickenson v. Fitchburg, (13 G.) 79 546; Flint -b. Flint. (6 A.i 88 34; Fowler %. Middlesex Com'rs, (6 A.) 88 9 led mt ° it, impairs its value for See ° r exposes il t0 suppression as a Whitman v. Boston & M. R. Jt., (7 A.) 89 313. 1121. Where land is taken for a highway, the question is, how much the remainder will be benefited, using it as a man of ordinary pru- dence, etc., would use it. This includes its value to erect permanent buildings, but not to sell it for building lots. Dwight v. Hampden Com'rs, (11 C.) 65 201; Dickenson «. Fitchburg, (13 G.) 79 546. 1122. Evidence that intoxicating liquor was sold there, is inadmissible to reduce the value. Brown v. Providence, etc., R. R., (5 G.) 71 35. 1123. Semble, that evidence of the nature,' extent, and amount, of the business done on the land is inadmissible, even as an element of market value. Whitman «. Boston & M. R. R., (3 A.) 85 133. 1124. In assessing damages for a way laid out above the level of the adjoining land, evidence of what it will cost to fill the land np to the level, is admissible. Plympton v. Woburn, (11 G.) 77 415 1125. At a- hearing for the abatement of a town tax upon a reservoir dam, and the land flowed by it, evidence of benefits derived from the water power, by others than the owner, is admissible on behalf of the town. Farmington River W. P. Co. n. Berk- shire Com'rs, 112 206. 1126. The recital of the consideration in a deed of land is not evidence of the value of the land, as against a stranger to the deed. Rose ». Taunton, 119 99. See, also, Palmer Co. v. Ferrill, (17 P.) 34 58; Spaulding v. Knight, 116 148. 1127. In an action to recover damages to an inn for a nuisance, by carrying on works,' and operating machinery near by, where the plain- tiff has shown the diminution of the rentable value of the premises in consequence thereof, the defendant cannot give the opinion of wit- nesses, who have bought and sold real property in the neighborhood, that the effect of stopping the defendant's works would be to diminish the value of the property for occupation. Wesson v. "Washburn Iron Co., (13 A.) 95 95. 1128. Where a contract is made with refer- ence to the use of property by one party, evi- dence of the value of such use to him, as dis- tinguished from its general value, is compe- tent. Manning v. Fitch, 138 273. See, also, Townsend v. Nickerson Wharf, 117 501. 1129. The price, which a chattel^ brought at auction, is competent evidence of its value, if accompanied with proof that the market value has not changed. Kent v. Whitney, (9 A.) 91 62; Lawton v. Chase, 108 238; Brigham «. Evans, 113 538. 1130. A witness who has bought and sold chattels, like the one in controversy, and used 512 EVIDENCE, IX ; (6). them in his business, can testify his opinion as to the value of the use ol the chattel Brady v. Brady (8 A.) 90 101. 1131. Freight agents of railroads may testify as to the proper charge for storing freight cars, although they have never known a case of storing cars, except when the freight in them has been attached. Fitchburg Railroad v. Freeman (12 G.) 78 40±. 1132. A witness, acquainted with the usual price of pasturing cattle., may testify whether it is worth more to pasture them transiently than by the season. Cornell v. Dean, . 105 435 »ll33. Wherever the value of any peculiar kind of property, which may not be presumed tc be within the actual knowledge of all jurors, is in issue, the testimony of witnesses, acquaint- ed with the value of similar property, is admis sible, although they have never seen the very article in question. And a witness, having the requisite knowledge and experience, may al ways be examined by hypothetical questions, even if he has not seen the particular article, and has not heard all the other evidence. Miller v. Smith, 112 470. See. also, Haskins v. Hamilton Ins. Co., (5 Gt.) 71 432; Beecher v. Denniston, (13 G.) 79 354: "Wright v. Quirk, 105 44; Whit- ney v Thacher, 117 523. 1134. A witness, unacquainted with the mar- ket value of a certain kind of logs, is incompetent to testify how far the value of felled timber is affected by sawing it into logs of that kind. Lawton v. Chase, 108 328. 1135. But he is competent if acquainted with snch value, although his experience was ac- quired in another place. Lawton v. Chase, 108 238. 1136. Upon the question, whether an oil painting was overvalued in a policy of insur- ance, the insurers cannot give in evidence offers for the painting, made after the policy was issued. Wood v. Firemen's Ins. Co., 126 316. 1137. But where an imported article, of uni- form character, is regularly bought and sold in open market, an offer, as well as a sale, quoted in currency, " duty paid by the seller," upon the daily price current lists of that market, is admissible, upon the question what was the market value of that article on a particular day, in gold and in bond. Whitney v. Thacher, 117 523. 1138. For a case where, under peculiar cir- cumstances, the market value of goods was allowed to be shown by means of the first cost, the expense of transportation, etc., see Eaton v. Melius, (7 G.) 73 566. 1139. For a case where an expert was allowed to testify, as to the market value of the crop of tobacco of a particular year, although he said that lots raised that year varied very much, and he could not tell the value of a par- ticular lot, save by inspection, sample, or description, see Draper d Saxton, 118 427. 1140. In an action on a fire insurance policy on goods on a steamboat, where the vessel suf- fered a collision, and took fire in consequence thereof, but sank before the goods were burned the evidence of a expert that the goods were of no value, in the situation they were then in is inadmissible. New York, etc., Express Co. v. Traders' & M. Ins. Co., 135 221. 1141. In an action by the finder of lost prop erty to recover for expenses, after he has testified as to its value, he cannot be asked by his coun- sel what he thought it was worth when he found it. Chase v. Corcoran, 106 286. 1142. The officer's return and the appraisal of the property, on a writ of replevin, are not evi- dence of its value, in an action upon the replevin bond. Kafer v. Harlow, (5 A.) 87 348- Leighton v. Brown, 98 515; Wright a Quirk, 105 44. 1143. And the appraisal of attached property is not evidence of value, in an action by a third person against the attaching officer. Adams «. Wheeler, 97 67. 1144. Where, in an action against an execu- tor for the testator's board, the defendant tes- tifies as to the value thereof, the plaintiff may show that he paid a higher price for the testa- tor's board for the preceding year. Snow v. Moore, 107 612. 1145. In an action against a carrier for the loss of a pearl ring, it was held, that it was proper to allow the plaintiff to point out a pearl, corresponding in size, etc., with the one lost, and then to allow an expert to testify as to the value of the pearl so pointed out. Barney v. Dinsmore, 141 42. 1146. Evidence as to how much hay an ordi- nary horse will eat in a week, is inadmissible in an action by a horse doctor, for the value of hay consumed by a sick horse in his charge. Carlton t>. Hescox, 107 410. 1147. A witness who has had the c are of an insane person, and provided for his table, and has been with him while boarding in another family, is competent to testify as to the value of boarding him, and taking care of him in the latter place. Kendall v. May, (10 A.) 92 59. 1148. In an action for advertising the defend- ant's business card in the plaintiff's newspaper, where the defendant asked a publisher what was the fair price for advertising such a card, an exception will not lie to the addition by the judge "in the manner published by the plain- tiff." Palmer «. White, (10 C.) 64 321. 1149. Where the value of an interest in » mining company is in question, evidence that some of the subscribers to the agreement, for the purchase of the mine, had lent money to the company, is inadmissible. Bruce v. Nickerson, 141 403. 1150. In an action on a policy of fire insur- ance, evidence of the amount, which the goods brought at an auction sale, is competent upon the question of value; and if the defendant puts in evidence to show, that this is not the most advantageous mode of disposing of the goods, the plaintiff may ask an expert if there is any better mode; and if the goods are staple goods, EXAMINEES, BOAED OF— EXCEPTION, I, (1). 513 constantly manufactured and sold in the mar ket the plaintiff may show what it costs to manufacture such goods. ' Clement v. British Am. Ass. Co., 141 Examiners, board of. f See County Commissioners.] Excavation. [See Land Owner. Exception. I. Where and how maintainable. (i.) What courts and proceedings. (2.) Where it lies. (3.) When and how taken. (4.) When and how filed, allowed, and en tered. (5.) Petition to establish its truth. II. Where it does not lie. (1.) Matter of discretion. (A.) General rule. (5.) Amendments; continuances. (C.) General conduct of the trial. (D.) Order of proof. (E.) Election of counts. (F.) Sufficiency of evidence. ((?.) Other matters relating to evidence. Off) Instructions to the jury. (/. ) Application for a new trial or a review (/.) Auditor's report. (K.) Other matters ot discretion. (£.) Rule where the discretion has not been exercised. (2.) Immaterial rulings, and incompetent evi- dence. (3.) Matter of fact; including rulings on pre- liminary questions. (4.) Insufficient or improper objection or re- quest. (5.) Consent; waiver. (6.) Other matters. i m. Bill of Exceptions, i IV. Practice; Proceedings; Judgment. LJ?or additional and analogous oases, upon the general principles herein considered, see Error; NewTkial- Report; Trial, II, (2); HI, (1). Tor rulings upon exceptions in particular cases, see the titles of the different actions, subjects of action, pro- ceedings, and crimes; also. Evidence, and the dif- ferent captions under that title. J I. Where and how maintainable. (!•) What courts and proceedings, , •>. In the practice of most courts of chancery, a bill of exceptions is unknown, and the rulings Vol. 1—65 of a judge presiding at the trial of issue by a jury, can be reviewed only upon motion for » new trial. Dorr v. Tremont Nat. Bk., 128 349. 2. But' bills of exceptions were allowed in equity causes under the Revised Statutes, upon questions of law arising at the hearing. Parker v. May, (5 C.) 59 336; Han- cock ii. Carlton, (6 G.) 72 39; Dorr v. Tremont Nat. Bk., 128 349. 3. And under the statute of 1853, requiring equitable relief in certain cases to be procured by actions at law, rulings upon questions of evidence, at a trial by jury in such an action, were reviewed by bill of exceptions. Crittenden v. Field, (8 G.) 74 621- Topliff v. Jackson, (12 G.) 78 566; Ir- vin «. Gregory, (13 G.) 79 215; Crane «. Adams, (16 G.) 82 542; Dorr v. Tre- mont Nat. Bk., 128 349. 4. Under the act of 1859, establishing the superior court, and under the General Statutes, bills of exceptions have been entertained to de- cisions of the justices of the supreme judicial court, sitting in equity, as well as to rulings at a jury trial in equity causes, either in that court or in the superior court. Williams v. Robbins, (15 G.) 81 590; Brooks v. Tarbell, 103 496; Hodges v. Pingree, 108 585; Cobb i>. Boston, 112 181; Nat. Mahaiwe Bk. «. Barry, 125 20; Southbridge Sav. Bk. i>. Exeter Works, 127 342; Dorr v. Tremont Nat. Bk., 128 349. 5. In probate appeals, questions of law, aris- ing at a trial by a jury, are now brought before the full court by bill of exceptions. McKeone v. Barnes, 108 344; Lewis v. Mason, 109 169; Nash v. Hunt, 116 237; Newell v. Homer, 120 277; Davis v. Davis, 123 590; May ». Brad- lee, 127 414; Dorr v. Tremont Nat. Bk., 128 849. 6. See, under the former statute, Higbee v. Bacon, (11 P.) 28 423; Stearns v. Fiske, (18 P.) 35 24. 7. The practice of reviewing rulings in mat- ters of law in equity causes, which grew ap before appeals were allowed, from a single jus- tice, sitting in equity, to the full court, has been retained since such appeals were autho- rized. Dorr v. Tremont Nat. Bk., 128 349. 8. The supreme judicial court will revise, in the full bench, upon a bill of exceptions or a report, the ruling of a judge of the court, or of 1 the superior court, upon an application to re- move a cause to the United States court, al- though the order was granted, and the cause has already been entered in the latter court. Stone v. Sargent, 129 503. See, also, Comm. v. Casey, (12 A.) 94 214; Morton «. Mut. L. Ins. Co., 105 141; Bryant v. Rich, 106 180; Florence S. M. Co. v. Grover & B. S. M. Co., HO 70: Mahone v. Manchester & L. R. R., Ill 72; Galpin v. Critchlow, 112 339; Gordon «. Green, 113 259; Du Vivier v. Hopkins, 116 125; New York Warehouse Co. ». Loomis, 122 431. 514 EXCEPTION, I, (1), (2). 9. An exception does not lie to the discharge of a prisoner on habeas corpus by a single judge. Wyeth v. Bichardson, (10 G.) 76 240. 10. Since St. 1874, Ch. 336 (see P. S., Ch. 155, § 28), an exception does not lie from a dis- trict court to the supreme judicial court. Haas v. Harrington, 116 135. 11 The prisoner only may take an exception in a criminal cause. Comm. v. Cummings, (3 C.) 57 212. 12. An exception may now be taken by the prisoner to a ruling in a capital cause. Comm. v. Dower, (4 A.) 86 297. Aliter, before the G. S., Comm. v. Knapp, (10 P.) 27 477; Comm. v. Buzzell, (16 P.) 33 153. 13. For rulings under obsolete statutes, see St. 1872, Ch. 199, § 15, exceptions from dis- trict court. Haas «. Harrington, 116 135. Complaint for abatement of taxes. Winnisimmet Co. v. Chelsea, (6 C.) 60 477. E. S., Ch. 86, decision of municipal court. McManagil v. Ross, (20 P.) 37 99. The same; exceptions on a libel, sued as pro- cess in rem, for forfeiture. Barnacoat v. Gunpowder, (1 Met.) 42 225. St. 1820, Ch. 79; various rulings. Dean v. Dean, (2 P.) 19 25; Miller v. Miller, (2 P.) 19 570; Olney v. Brown, (2 P.) 19 572; Purple v. Clark, (5 P.) 22 206; Piper v. Willard, (10 P.) 27 34; Sale v. Pratt, (19 P.) 36 191; Ex parte Endicott, (24 P.) 41 339. Under R. S., Ch. 82, an exception lies to the judgment of the common pleas, on an award: the writ of error is merely cumulative. Baton v. Hall, (5 Met.) 46 287. So, also, under G. S Conrad v. Massasoit Ins. Co., (4 A.) 86 20. St. 1785, Ch. 66, bastardy case. Gile v. Moore, (2 P.) 19 386. St. 1785, Ch 66, assessment of land damages. Parks v. Boston, (15 P.) 32 198. St. 1784, Ch. 28, assessnment of damages by judge. Storer v. White, 7 448; Sawyer v. Pratt, (9 Met.) 50 170. 14. An order of the superior court, granting a review, or allowing an amendment of a peti- tion for a review, may be reviewed by the supreme judicial court on exceptions. Davenport «. Holland, (2 C.) 56 1; Richardson «. Lloyd, 99 475. (2.) Where It lies. 15. An exception lies, if the instructions given to the jury do not cover all the points, contained in a proper request. Whitney ®. Twombly, 136 145. 16. An exception lies to the rejection of secondary evidence, after the introduction of preliminary evidence sufficient to warrant its introduction, if all the evidence is reported; but not otherwise. Poster v. Mackay, (7 Met.) 48 581- Hatch «. Carpenter, (9 G.) 75 271. [See Evidence, V.l 17. So where a witness's opinion is errone- ously excluded. Baxter v. Abbott, (7 G.) 73 71. [See Evidence, I, (4).] 18. An exception lies for the admission of material and incompetent evidence under objec- tion, although it was not noticed by counsel on either side in addressing the jury, or by the judge in his instructions. Brown v. Cummings, (7 A.) 89 507. 19. If a ruling of the presiding judge is erro- neous, upon the pleadings as they then stand, a subsequent amendment of the declaration will not toll an exception thereto. Rogers v. Union Stone Co., 130 581. 20. Where, upon the trial of a complaint for larceny at sea, the judge instructed the jury to find specially whether the act was committed within three miles of the shore, and they so found, the defendant, who was convicted, can- not be barred from his exception, by the judge's statement, that by three miles all parties under- stood a marine league. Comm. v. Parker, 130 40. 21. An exception to the omission in the in- structions to the jury, of a qualification applica- ble to the case, is available, although the defeated party did not specially direct the judge's attention to the particular omission. Pond v. Williams, (1 G.) 67 630. 22. But if the exception rests upon the omis- sion of the judge to rule as requested, in some particular, where the instruction is generally correct, it is not available, unless his attention was called to the particular omission. Noxon v. DeWolf, (10 G.) 76 343; Morg m v. Morse, (13 GJ 79 150; Whit- ford v. Southbridge, 119 564; Blagge v. Hsley, 127 191. [See, further, on this point, post, II, (4).] 23. An exception lies to an instruction, although correct in law, if it assumes the existence of facts, of which there is no evidence. Clough v. Whitcomb, 105 482. 24. Or if it asserts that the defendant admits a fact, which he denies. Clifton v. Litchfield, 106 34. 25. Or if it allows the jury to find a fact, which both parties have admitted did not exist. Thompson v. Galloupe, 100 435. 26. An amicus eurice is heard only by the leave and for the assistance of the court; ne cannot maintain an exception, although mter- ' Martin v. Tapley, 119 116. 27. Where there was evidence on both sides upon a material question, and the jury were instructed that it was immaterial, an exception will be sustained. M . Croucher v. Oakman, (1 A.) 8rf *>*■ 2fc. If the certificate of the presiding judge, given under P. S., Ch. 198, § 6, relating to costs, that an easement is concerned in an EXCEPTION, I, (3), (4). 515 lC tion is based upon a ruling upon a question A law. an exception thereto is open Rathke v. Gardner, 134 14. 29 An exception lies to instructions that do lot discriminate with sufficient care between wo legal propositions, one of which would, md the other would not, render the party iable and which are not adapted to the evi- 'Howe«. Taggart, 133 284. (3.) When and how taken. 30. Exceptions, certified by the presiding judge not to have been saved cr taken, at tbe. trial, are not open in the supreme judicial court. Brown ». Abington Sav. Bk. , 119 69. 31. No exception lies to the admission of in- competent evidence, if the objection is not made, when it is put into the case. Peterson «. Farnum, 121 476. 32. No particular form in alleging or saving exceptions is required. If the court under- stands that counsel excepts to a ruling, or a re- fusal to rule, or instructions, or a refusal to instruct, it is sufficient; but if an express and formal exception is not taken, the danger is that the judge may not understand that it is taken* and so it may be lost. Thwing v. Clifford, 136 482. See also, Leyland v. Pingree, 134 367. 33. Merely handing to the presiding judge . written requests for instructions, does not imply that if they are refused, an exception is saved. Leyland v. Pingree, 134 367. 34. Where no exception to the instructions was taken at the trial, and afterwards the court, in overruling a motion for a new trial, holds that the instructions were correct, an exception cannot then be taken. Kidney v. Richards, (10 A.) 92 419.. 35. A party, testifying in his own behalf, and subjected, against his objection, to an im- proper cross examination, is not required to except at the time of the cross examination, hut may do so afterwards. Holbrook v. Dow, (12 G.) 78 357. 36. Qu., whether, if the plaintiff asks a wit- ness a question, and the defendant objecting, and the objection being overruled, the witness answers, and the defendant then excepts, the ruling of the court that his exception comes too late, and its refusal to allow it, is itself a ground of exception. Clifton v. Litchfield, 106 34. 37. Instructions given to the jury, after the judge has concluded his charge, may be ex- cepted to. Mooar v. Harvey, 125 574. 38. Where a party does not make a question as to a particular fact, and present it to the jury, an exception will not lie to a refusal to instruct ™ jury thereupon, made after the argument is closed. Dale v, Thurlow, (12 Met.) 53 157. v3 ^ n . instruction > not requested before the veraict, is too late to maintain an exception thereupon, although it is based upon an excep- tion taken during the trial. Leach*. "Woods, (14 P.) 31 461. See, also, Reed v. Call, (5 C.) 59 14 40. For rulings, now obsolete, see Buckland v. Charlemont, (3 P.) 20 173; Nixon 1>. Hammond, (12 C.) 66 285. 41. The statute, rendering it unnecessary to allege an exception in writing -before the jury retire, does not abrogate the rule that it must be made orally, at the time of the ruling com- plained of. Lee v. Gibbs, (10 A.) 92 248. (4.) When and how filed, allowed, and entered. 42. Under G. S., Ch. 115, §§ 7, 8, (see P. S., Ch. 153, §§ 8, 9, 10), it has been held as follows: The provisions of the statute must be strictly followed, unless waived by the adverse party. Doherty «. Lincoln, 114 362. The exceptions must, within three days after the ruling, be presented to the judge, as well as filed with the clerk; the judge is to examine the bill, and sign with his own hand, a certi- ficate allowing or disallowing them. If not so presented, he is not obliged to allow them. Tufts v. Newton, 119 476. See, also, Barstow v. Marsh, (4 G.) 70 165; Horton «. Wead, (9 A.) 91 537; Sawyer ■». Yale Iron Works, 116 424; Cooney v. Burt, 123 579; Nye v. Old Colony Railroad, 124 241. If not presented to the judge before the final adjournment, and no extension is granted, they cannot be allowed, • although filed three days after the verdict. Comm. i). Greenlaw, 119 208. If the time has been extended to a particular day, and that is a legal holiday, and the except- ant fails to present them till the next day, they will be dismissed, if the adverse party takes the objection before they are allowed. Cooney n. Burt, 123 579. An oral agreeument, extending the time, will not suffice. Nye v. Old Colony Railroad, 124 241. They may be allowed, if not filed or present- ed within the time, if the adverse party con- Walker v. Moors, 122 501. An agreement, before the trial, does not ex- tend the time unless it expressly so provides Phillips v. Soule, (6 A.) 88 150. If notice is not given to the adverse party within the three days, or within the time ex- tended for that purpose, and he has not waived the notice, the exceptions will be dismissed. Conway v. Callahan, 121 165. As to service of the notice, under the rule of the superior court. Blair v. Laflin, 127 518; Cowley «. McLaughlin, 141 181. If filed and presented seasonably, and, on the cause being continued nisi, restored by the judge to the files at a subsequent term, with a certificate of allowance, and entered in the su- preme judicial court, that suffices. Hale v. Rice, 124 292. 516 EXCEPTION, I, (4). So, after general continuances; and the re- quisite notice, etc., will be presumed. Browne *. Hale, 127 158. Sunday is excluded from the three days al- lowed for filing. Cowley 1>. McLaughlin, 141 181. 43. For rulings, as to filing and allowing ex- ceptions under former statutes, see St. 1803, Ch. 94, Pease «. Whitney, 4 507; St. 1859, Ch. 196, Barstow v. Marsh, (4 G.) 70 165; Elwell v. Dizer, (1 A.) 83 484. 44. The supreme judicial court will not notice any irregularity in filing exceptions, unless it appears by the certificate of tbe judge allowing them. Whitcomb v. "Williams, (4 P.) 21 228. 45. Whether a judge errs in disallowing ex- ceptions, is matter of record, to be corrected by writ of error: it cannot be affected by oral evi- dence of his reasons. Brown v. Bull, 3 211; Fleming v. Clark, (12 A.) 94 191; Tufts «. Newton, 119 476. 46. Under St. 1864, Ch. Ill; P. S., Ch. 153, § 15, the exceptant cannot, as matter of right, enter hU exceptions in the supreme judicial court, six months after they are allowed; but the court may allow him to do so, upon Ms ex- cusing the delay. Bentley v. Ward, 116 333. 47. An entry of exceptions in the supreme judicial court, twenty-seven days after allow- ance in the superior court, and more than a month before the next law term, is in season. Priest v. Groton, 103 530. 48. Semble, that if both parties file exceptions, an entry by one suffices. Shattuck v. Woods, (1 P.) 18 171, note. 49. Formerly, the entry could not be made, until the adjournment of the term where the questions arose. Stowell v. Eichardson, (1 A.) 83 401. 50. A cause continued in the court below, after its final determination, for the allowance of exceptions, may be entered in the supreme judicial court, at the first term after their allow- ance. Boyle v. Burnett, (9 G.) 75 251. 51. Under E. S., Ch. 81, a cause, in which exceptions are alleged to the opinion of the judge of the supreme judicial court at the July term in Nantucket, may be first entered in Suf- folk, at the next March term. Shaw v. Bunker, (2 Met.) 43 376. 52. Under the R. S., exceptions in a criminal cause, filed in the municipal court, or the com- mon pleas, must be entered in the supreme ju- dicial court next to be held for the same county, and a recognizance to enter and prosecute them in the court then in session, is void. Comm. v. Harley, (7 Met.) 48 467. 53. In a cause pending in the superior court, questions of law, arising therein, cannot be en- tered and heard in the supreme judicial court, upon either appeal or exceptions, until after final judgment in the court below. Boyce v. Wheeler, 133 554. See also, Piper v. Willard, (6 P.) 23 461- Comm. v. Stevens, (10 C.) 64 483; Burs- ley «. Barnstable, (14 G.) 80 106; Mar- shall v. Merritt, (13 A.) 95 274; Hogau s.Ward, 117 67; Safford v. Knight 117 281; Clinton Bk. •». Taylor, 117 283, note; Gifford v. Rockett, 119 71; Harding «. Pratt, 119 188; Crompton Carpet Co. v. Worcester, 119 375; Kellogg v. Kimball, 122 163; Piatt v. The Justices, etc., 124 353; Comins v. Turner's Falls Co., 140 146. LSee, also Appeal, I, (4).} 54. A refusal of tne superior court to render judgment upon the report of commissioners in partition, is an interlocutory, and not a final decision, within the rule. Boyce v. Wheeler, 133 554. 55. So is the overruling of a demurrer to an indictment. Comm. v. Paulus, (11 G.) 77 305 56. Or the overruling a demurrer to the de- fendant's plea. Comm. v. Sallen, (11 G.) 77 52. 57. Where, after a trustee had answered, and before the court had given an opinion upon bis. answer, an assignee of the debt petitioned that. the question of the assignment, arising upon the answer, might be submitted to a jury, and the court refused to grant the prayer, and adjudged the tiustee chargeable; an exception, in favor of the petitioner, to the decision and judgment, was sustained by the supreme judi- o\ fl.1 o ourl" Ammidown«.Wheelock,(8P.) 25 470. 58. Where, upon a trial in the common pleas, in an action against parties severally liable upon a note, the jury return a verdict in favor of one, and find no verdict as to the others, ex- ceptions to rulings, in favor of that defendant, may be entered in the supreme judicial court, before the cause is disposed of in the court below as to the others. Wamesit Bk. i>. Buttrick, (11 G.) 77 387. 59. But where a declaration contains two counts, and the jury return a verdict upon one only, exceptions cannot be entered in the su- preme judicial court, until the superior court has disposed of the other. Harding . Taunton, 119 99. 61 . Upon the trial of a complaint for flowage, a ruling that the complainant is entitled to maintain the complaint, and excluding evidenee offered by the respondent, is interlocutory; and exceptions thereto, entered before the cause is finally disposed of in the superior court, will he dismissed. Comins v. Turner's Falls Co., 140 146. EXCEPTION, I, (5). 517 (5.) Petition to establish Its truth. [Rule XXX ] 62. The 32d (now 30th) rule of the supreme judicial court, regulating the mode of establish- ing the truth of disallowed exceptions, applies to criminal as well as civil causes. Comm. v. Wilson, 99 427. 63. The exceptions which can be thus estab- lished, are only those which were duly taken at the time, and duly and seasonably filed and presented. Joannes v. Underwood, (6 A.) 88 241; Bottum v. Fogle, 105 42; Sawyer v. Yale Ironworks, 116 424; Arvilla v. Spaulding, 121 505. And the statute does not apply to a counter- draft of a bill of exceptions, presented by way of amendment by the successful party. Browne v. Hale, 127 158. 64. Upon the presentation of the petition, the court will appoint a commissioner to take the depositions of witnesses, produced by either party; and if the petitioner unreasonably de- lays to procure him to fix a time for the hear- ing, the petition will be dismissed. Comm. ■». Marshall, (15 G.) 81 202; Freeman v. Griggs, 116 302. 65. For rulings, as to the time and place of filing and entering the petition, under the rule, see Elwell v. Dizer, (1 A.) 83 484; Whit- ford ». Knowlton, (6 A.) 88 557; Priest v. Groton, 103 530; Brown v. Gilman, 115 56; Tufts v. Newton, 117 68; Fletcher v. Sibley, 124 220. 66. After the appointment of a commissioner, a motion to dismiss the petition a< not seasona- bly presented, cannot be entertained, although it was filed previously. Aldrich ». Brown, 103 527. 67. The court has no power to revise the de- cision of the judge upon the question, whether the exceptant has taken the preliminary steps to have his exceptions allowed; if such decis- ion involves any question of law, it may be pre- sented by a certificate allowing the exceptions, subject to the opinion of the supreme iudieial court upon that question. Spofford «. Loveland, 130 6. See, also, Conway v. Callahan, 121 165; Walker v. Moors, 122 501; Blair v. Laflin, 127 518. 68. Qu., whether his decision upon such question if adverse to the exceptant, can be Drought before the court by bill of exceptions. opofford ». Loveland, 130 6. J?' ^ ere &e m]in S °f the presiding iudee, & db ^ commissioner, differs fubstlnl rlSf? th / ^S M stated in th e bill of ex- S'J V t T der ^ ^ the exceptant, and the 2,7 4 e evi ? en ce reported by the commis- S 1 oe n e nt:Sd hi8flndinS ' *"» eXCeptl ° n „io? a f?,?- Cam Pt>ell, 131 566. See, also Cullen t ,. Searls, 112 299; Crow Wn!vT e> ■. H S , l53 ' Saw 7 er •• Y ale Iron fltwVi 116 , i 34; MMkqr*. Mut. Bene- lVq'Sfr a 118 , "8; EiU. Cockshott, 505 ; Vllla ft s Paulding, 121 70 So where material evidence is omitted, or is untruly stated. Sawyer v. Yale Iron Works, 116 424; . Glidden v. Child, 122 433; Ferguson v. Dean, 132 183. 71. The certificate of the presiding judge, disallowing the exception, is prima facie evi- dence that the latter is not conformable to the truth. Sawyer i>. Yale Iron Works, 116 424. 72. The affidavits, verifying the petition, are not evidence of the truth of the exceptions. Comm. v. Marshall, (15 G.) 81 202. 73. Upon the return of the commissioner's report, the question whether the truth of the exceptions, is established, is a question of law for the court. Sawyer v. Yale I. Works, 116 424. n 74. Where there is a conflict of testimony before the convmiss'oner, either party is enti- tled to the judgment of the full court there- upon; and a motion to recomm t the report to report the evidenee will be granted. Ela i>. Cockshott, 119 416. 75. And if the commissioner is in doubt whether the petitioner is entitled to have an exception allowed, he should report the facts, and submit the questions of law to the court; and, in that case, such questions must be argued, in connection with the exceptions established. Cullen «. Sears, 112 299. 76. If the report of the commissioner states that the bill of exceptions tendered would be conformable to the truth, with certain words stricken out, and certain other words added, and the changes suggested are not material, the truth of the exceptions is deemed established. Farnsworth v. Lowery, 134 512. See, aho, Bates v. Santon, 116 120; Markey v. Mut. Ben. Ins. Co., 118 178. 77. The jurisdiction is vested exclusively in the supreme judicial court to establish, upon petition, exceptions disallowed by a judge of that court, or of the superior court; and the directions of the statute must be strictly followed. Phillips «. Hoyle, (4 G.) 70 568; Mar- ble v. Keyes, (4 G.) 70 570, note; Priest v. Groton, 103 530; Cullen v. Sears, 112 299; Ela v. Cockshott, 119 416. 78. The petition is sufficient, if it avers that the matters set forth in the disallowed sxeep- tions are correctly stated, and all taken together recite sufficient facts, to authorize the granting of the prayer thereof. Whitford v. Knowlton, (6 A.) 88 557. 79. Where an important part of the evidence is omitted, neither the exception as presented, nor the exception as proved, will be considered. Crow0. Stowe, 113 153. 80 A superfluous and irrelevant, although, improper, allegation, in a petition, does not require it to be dismissed. Lyons v. Cambridge, 131 571. But if the exception alleged does not state the ruling and the evidence, with substantial accu- racy, the petitioner cannot be heard. Sawyer v. Yale Iron works, 1 16 424. 518 EXCEPTION, I, (5); II, (1), (A), (B), (C). 81. A party who fails to establish some of the exceptions, may waive those, and argue the exceptions established. Phillips v. Hoyle, (4 G.) 70 568; Comm. v. Marshall, (15 G.) 81 202; Moore v. Quirk, 105 49; Sawyer v. Yale Iron Works, 116 424; Cullen v. Sears, 112 299. 82. In an action upon a bond to dissolve an lattachment, where it appeared, that in the orig- inal action exceptions were disallowed as frivol- ous, and judgment entered, and a petition was filed to establish the exceptions, pending which this action was brought; and afterwards the petition was dismissed for want of prosecution; the defendant's exception to a ruling that this action could be maintained, was overruled with double costs, and twelve per cent interest. Holbrook v. Haney, 124 356. II. Whehe it does not me. (1.) Matter of discretion. [As to the discretion of the court, in allowing or disallowing separate trials for prisoners jointly In- dicted, see Trial, II, (1).] (A.) General rule. 83. An exception does not lie to any ruling or decision in a matter resting within the discretion of the court. Williams v. Hadley, (19 P.) 36 379; Feneley e. Mahoney, (21 P.) 38 212; Spoor v. Spooner, (12 Met.) 53 281; Eichardson v. Curtis, (2 G.) 68 497; Ward v. Hill, (4 G.) 70 593; Rugg v. Parker, (7 G.) 73 172; Ward v. Puller, (7 G.) 73 179; Crittenden v. Field, (8 G.) 74 621; Adams v. Hampden, (13 G.) 79 439; Clark v. Lowell, (1 A.) 83 180; Phillips *. Soule, (6 A.) 88 150; Petitcler v. Willis, 99 460; Brooks v. Tarbell, 103 496; Rogers v. Ladd, 117 334; Daxis v. Davis, 123 590; Dennie v. Williams, 135 28; Taber v, Wilcox, 136 56; Cowley v. McLaugh- lin, 137 221. [See, also, New Trial, I, (1).] (B.) Amendments j continuances. [See, also. Amendment; Trial, I.] 84. Decisions relating to the allowance or dis- allowance of amendments are peculiarly matters of discretion, and if the power of the court has not been exceeded, no exception lies thereto. Haynes '». Morgan, 3 208; Bruce v. Fairbanks, (12 C.) 66 273; Bichmond Iron Works «. Woodruff, (8 G.) 73 447; Emery v. Osgood, (1 A.) 83 244; Pay- son v. Macomber, (3 A.) 85 69; Gwynn v. Globe L. Works, (5 A.) 87 317; Lang v. Bunker, (6 A.) 88 61; Winsted Bk. v. Adams, 97 110; Smith v. Whiting, lOO 122; Georges Reed, 101 378; Ford v. Ford, 104 198; Harrington v. Harrington, 107 329;Looney«.Looney 116 283; Augur S. Axe Co. e. Whittier 117 451! Hutchinson v. Tucker, 124 240. 85. The granting or refusing of an appli- cation for a continuance or postponement, or to bring forward a cause, is discretionary, and lays no foundation for an exception. Blossom v. Goodwin, 1 502; Reynard v. Brecknell, (4 P.) 21 302; Whitney e Thayer, (5 P.) 22 528; Barker v. Has- kell, (9 C.) 63 218; Monk t. Beal, (2 A.) 84 585; Shannon v. Shannon, (10 A.) 92 249; Comm. v. Donovan, 99 425; Pickering i>. Reynolds, 111 83; Kitt- redge v. Russell, 114 67; Comm. ». Drake, 124 21; Reeds. Paul, 131 139. 86. Aliter, in a case where a statute gives a right to a continuance. Ray B.Wight, 119 426; Clinton Bk. v. Taylor, 120 124; Page «. Cole, 123 93. 87. So striking off a continuance is discre- tionary. Jewett». Locke, (6 G.) 72 233. (C.) General conduct of the trial. | See, also, Trial, II; III.l 88. The withdrawal of, or the refusal to with- draw, pleadings; the exclusion of witnesses from the court room; and the like, are within the discretion of the presiding judge, and his directions relating thereto cannot be reviewed on exception. Ward®. Fuller, (7 G.) 73 179; Comm. v. Gould, (13 G.) 78 171; Ives v. Farmers' Bk., (2 A.) 84 236; Comm. «. Hall, (4 A.) 86 305; Comm. v. Blake, (12 A.) 94 188; Perry t>. Breed, 117 155. 89. Before the statute prohibiting it, the com- ments of the judge upon the evidence, not in- volving a ruling upon the law, could not be excepted to. Curl d. Lowell, (19 P.) 36 25; Davis ■o. Jenney, (1 Met.) 42 321; Whiton j. Old Colony Ins. Co., (2 Met.) 43 Mansfield v. Corbin, (4 C.) 58 213. 1; UTor the rule under the present statute, see Trial, III, (1).] 90. The refusal of the presiding judge to dismiss the action, for a defect in the declara- tion, is not a ground of exception. Salem Turnpike v. Hayes, (5 C.) 59 458. 91. Nor is his refusal to strike from the docket the entry of an order of dismissal. Horton o. Wead, (9 A.) 91 537. 92. Nor is the exclusion or admission of im- material evidence, in reply to other immaterial evidence Brooks e. Acton, 117 204; Lynch ». Coffin, 131 311. 93. Nor is his refusal to stop the readjng of a letter, which the adverse parry had < might be read. Comm. •». Marks, 101 81. EXCEPTION, II, (1), (C), (D). 519 94. Nor does an exception lie to his decision, as to whether the jury may take with them DaBers, read upon the trial. Whithead «. Keyes, (3 A.) 85 495; Burghardt». VanDeusen, (4 A.) 86 374; Clapp v. Norton, 106 33. 95. Or to his refusal to allofa the defend- ant's counsel to comment upon the evidence, ■while opening his case. Rich v. Jones, (9 C.) 63 329. 96. Or to allow counsel in a criminal cause to read to the jury portions of a statute, not relevant to the prosecution, or to comment upon the whole of the statute. Comm. v. Austin, (7 G.) 73 51. 97. Or to read to them an adjudication made in another state. Comm. v. Murphy, (10 G.) 76 1 98. Or to allow an irrelevant course of argu- ment, if the jury are properly instructed. Comm. v. Byce, (8 G.) 74 461. (D.) Order of proof. [See, also, Trial, II, (2)/] 99. The order in which evidence shall he introduced;_ the number of witnesses which a party may call to the same point; whether a party who has closed may introduce additional evidence; or whether a party may introduce original evidence where he is replying; is dis- cretionary with the presiding judge, and an exception does not lie to his directions there- upon. Gushing «. Billings, (2 C.) 56 158; Burke v. Miller, (7 C.) 61 547; Ash- worth 0. Kittridge, (12 C.) 66 193; Eeed v. Anderson, (12 C.) 66 481; Comm. v. Moulton, (4 G.) 70 39; Morse «. Potter, (4 G.) 70 292; Chadboura v. Franklin, (5 G.) 71 312; Macullar v. "Wall, (6 G.) 72 507; Martin v. Maguire, (7 G ) 73 177; Rays. Smith, (9 G.) 75 141; Smith v. Merrill, (9 G.) 75 144; Day v. Moore, (13 G.) 79 522; Bacon 0. Williams, (13 G) 79 525; Coreya. Janes, (15 G.) 81 543; Durant v. Lawrence, (1 A.) 83 125; Boynton v. Laighton, (1 A.) 83 509; Green «. Gould, (3 A.) 85 465; Liver- pool "Wharf 0. Prescott, (4 A.) 86 22; Coram, v. Arrance, (5 A.) 87 517; Car- ruth s. Bayley, (14 A.) 96 532; Brewer «. Housatonic Railroad, 104 593; Comm. «. Dam, 107 210; Hathaway 0. Evans, 108 267; Brown 0. Brown, 108 386; Wright v. Foster, 109 57; Comm. «. McGorty, 114 299; Lowe e. Omental, 115 44; Strong v. Connell, mh • m 575; Huntsman «. Nichols, 116 521; Wheeler 0. Wheeler, 116 297; Wallace 0. Taunton S. Railway, 119 I H£?5i m - «• ^ cCue > 12 1 358;Eames «. Whrttaker 123 342; Comm. v. Blair, !■«> _ 40; Baker 0. Gavitt, 128 93; Hodgkmsfl.Chappell, 128 197; Comm «. Brown, 130 279. 100. Even in a capital cause. Comm. 9. Dower, (4 A.) 86 Umm. v. Piper, 120 185 297; 101. So as to whether additional evidence may be given, upon the return of the jury into court to make an inquiry. Comm. v. Ricketsonr, (5 Met.) 46 412. 102. Or to prove an inaccuracy in an entry by a cashier called by the adverse party, where the only matter as to which it is relevant is the witness's general accuracy. Boston & W. Railroad v. Dana, (1 G.) 67 83. 103. So as to whether one who puts in a deed shall be required to introduce a plan referred to therein. Bennett 0. Clemence, (6 A.) 88 10. 104. So as to whether a witness shall be cross examined as to a memorandum made to refresh his memory, before testifying in chief. Comm. 0. Burke, 114 261. 105. So as to whether a paper, found after secondary evidence of its contents has been given, shall be put in evidence, although the adverse party has opened his case. Blake v. Sawin, (10 A.) 92 340. 106. Where proof of an inquiry made to a third person was admitted, the admission of the answer is discretionary, although the person is in court. Lothrop 0. Adams, 133 471. 107. Where evidence is excluded on a party's objection, as irrelevant to the issue, the refusal of the court to allow the party, at a subsequent stage of the trial, to give evidence upon the same question is discretionary, and not open to ex- ception. Smith 0. Burrill, 131 92. 108. It is discretionary with the court, whether a party may put leading questions to his own witness. York ®. Pease, (2 G.) 68 282. 109. Also, how far, or how long a cross ex- amination, upon the merits, may extend, if no competent evidence is excluded. Comm. 0. Nickerson, (5 A.) 87 518; Rand 0. Newton, (6 A.) 88 38; De- merritt 0. Randall, 116 331. 110. So the extent to which the cross exami- nation of a witness shall be carried, as to the particulars of a quarrel between him and a party, or otherwise to show bias or prejudice, or to test his credibility, is within the discre- tion of the presiding judge. Comm. 0. Allen, 128 46. See, also, Comm. 0. Jennings, 107 488; Morris- sey 0. Ingham, 111 63; Comm. 0. Lyden, 113 452; Comm. v. Pettes, 114 307; Wallace 0. Taunton Street Railway, 119 91; Pond 0. Pond, 132 219. 111. So as to matters irrelevant to the issue. Comm. 0. Sacket, (22 P.) 39 394; Comm. 0. Shaw, (4C.) 58 593; Comm. v. Hills, (10 C.) 64 530; Comm. 0. Savory, (10 C.) 64 535; Comm. v. Purtle, (11 G.) 77 78; Hutchinson Methuen, (1 A.) 83 33; Prescott 0. Ward, (10 A.) 92 203; Comm. 0. Silk, 111 431; Comm. 0. Kelley, 113 453; Tuttle v. Lawrence, 119 276; Jones 0. Smith, 121 15; Blackington 0. John- son, 126 21; Comm. v. Gallagher, 520 EXCEPTION, II, (1), (D), (E), (F), (G), (H). 126 54; Levin v. Vannevar, 137 532. 112. An exception does not lie to the admis- sion of immaterial matter on cross examina- tion. Dunckley 0. Middlesex Com'rs, (6 A.) 88 92; Murphy v. Stanley, 136 13d; Jennings v. Whitehead & A. Machine Co., 138 594. 113. The extent of re-examination as to mat- ters not testified to on cross examination, is dis- cretionary. Kendall v. Weaver, (1 A.) 83 277. 114. So, where a witness, called to prove an instrument, is cross examined generally by the adverse party. Beal ». Nichols, (2 G.) 68 262. 115. So as to repetitions of questions on di- rect or cross examination. Coker v. Ropes, 125 577. 116. It is discretionary with the presiding judge to require the witness to produce a memo- randum not in court, which he has not been summoned to produce. Comm. i>. Lannan, (13 A.) 95 563 117. Or to allow a plan, not proved to he ac- curate, to be shown to the jury, or used by a witness, as a general representation of the situ- ation, etc., of the land, or as explanatory of the witness's testimony. Comm. «. Holliston, 107 232; Paine 0. Woods, 108 160. (E.) Election of counts. 118. It is discretionary with the presiding judge to compel the plaintiff, upon which of two counts, one in contract and one in tort, he will rely, where the declaration states that they are for the same cause of action. Carlton 0. Pierce, (1 A.) 83 26; Sulli- van 0. Fitzgerald, (12 A.) 94 482; Crafts v. Belden, 99 535; Atwater 0. Clancy, 107 369. 119. Or, to compel the district-attorney, upon which count of an indictment, containing sev- eral counts, he will rely. Comm. v. Slate, (11 G.) 77 60; Comm. d. Davenport, (2 A.) 84 299: Comm. v. Sullivan, 104 552; Comm. 0. Bennett, 118 443; Comm. v. Pratt, 137 98. 120. And the refusal to compel an election of counts, or causes of action, is not ground of exception. Shemll 0. Van Deusen, (15 G.) 81 485; Downs 0. Hawley, 112 237. (F.) Sufficiency of evidence. [See, also, Tbiax, II; III.] 121. Where the plaintiff has not made out his case, it is discretionary with the court to nonsuit, or to submit the case to the jury with instructions. Wentworth d. Leonard, (4 C.) 58 414; Priest v. Wheeler, 101 479. 122. And, generally, the court may decline to express any opinion on the weight or suffici- ency of evidence, if it submits the case to'tue jury with proper instructions. Bassett v. Porter, (4 C.) 58 487; Mc- Gregory 0. Prescott, (5 C.) 59 67' Morgan 0. Ide, (8 C.) 62 420; Barrett v. Maiden, etc., Railroad, (3 A.) 85 101 ; Manning 0. Albee, (14 A.) 96 7; Alc- Mahon».Tyng,(14A.) 96 167; Bradley v. Poole, 98 169; Wetherbee v. Potter, 99 354; Smith v. Westfield Nat. Bk., 99 605; Kingsford 0. Hood, 105 495; Hurley 0. O'Sullivan, 137 86. 123. Although both parties request him so to do. Farnum v. Davidson, (3 C.) 57 232. 124. And a judge is not bound, at the trial, to set aside a verdict as against the weight of evidence. Reeve 0. Dennett, 137 315. 125. So he may rule upon the sufficiency of the evidence, instead of submitting the case to the jury. French v. French, (14 G.) 80 186. See, also, Davis ». Maxwell, (12 Met.) 53 286. 126. But a refusal to instruct the jury, that there is no evidence to support an indictment, may be reviewed on an exception. Comm. 0. Packard, (5 G.) 71 101; Comm. 0. Merrill, (14 G.) 80 415. 127. And leaving it to the jury to find a fact, where the evidence is insufficient in law for for that purpose, may be reviewed on an excep- tion, where all the evidence is reported. Chase «. Breed, (5 G.) 71 440. (G. ) Other matters relating to evi- dence. 128. Where incompetent evidence, admitted under objection, is afterwards withdrawn by the judge, and the jury are instructed to dis- regard it, the exception fails. Smith 0. Whitman, . (6 A.) 88 562: CosteUo 0. Crowell, 133 352. 129. It is discretionary with the presiding judge, whether to receive further evidence upon a point admitted by the adverse party. Dorr «. Tremont Nat. Bk., 128 349. 130. The question whether evidence as to value, situation, motive, or the like, is or is not too remote, addresses itself, to a _ great extent, to the discretion of the presiding judge. Berrenberg 0. Boston, 137 231; Comm. 0. Bean, 137 570. (H.) Instructions to the jury. 131. It is discretionary with the judge to re- call the jury for further instructions, after they have retired; or to refuse to do so. Mooar 0. Harvey, 125 574; In re Phillips, 132 233. 132. It is not a ground of exception, that in- structions requested are not given in the form requested, if they are given in substance. EXCEPTION, II, (1), (H). 521 Whitman ». Boston & M. Railroad, (7 A) 89 313; Springall v. Whittier, 103 375; Wing r. Chesterfield, 116 353; Conn. Trust Co. v. Melendy, 119 449* Pearson ». Mason, 120 53; Comm. v. Cobb, 120 356; Comrn. v. Brown, 121 69; Peterson v. Farnum, 121 476- Magee F. Co. i>. Boston S. Furnace Co.', 124 409; Thurston u.Perry, 130 240; Howes v. Grush, 131 207; Ran- dall v. Chase, 133 210. 133. Or that the presiding judge refuses to give applications and illustrations, forming part of the request. Townsend v. Pepperell, 99 40. 134. So of a refusal to give an instruction, substantially covered by those given. Day v. Cooley, 118 524; Brown v. Dean, 123 354. 135. An exception does not lie to a refusal to give instructions, as to a particular portion of the evidence, taken by itself, if proper general instructions have been given. Young e. Durgin, (15 G.) 81 264; Gunnison v. Langley, (3 A.) 85 337; Stebbins «. Miller, (12 A.) 94 591, Howe v. Howe, 99 88; Tatterson v. Suffolk M. Co., 106 56; Littlefield v. Huntress,' 106 121; Strong v. Connell, 115 575; McDonough ». iViiller, 114 94; Comm. v. Carroll, 122 16; Packer e. Hinckley L. Works, 122 484; Cross v. Plymouth County, 125 557; Towne ». Fiske, 127 125. 136. Nor as to the effect of particular facts. Howard v. O'Neill, (2 A.) 84 210. 137. Nor to a refusal to instruct, upon the assumption that a controverted issue is estab- lished. Pettingill «. Porter, (8 A.) 90 1; Howe ». Howe, 99 88; Coombs v. N. B. Cord Co., 102 572; Littlefield v. Huntress, 106 121; Coleman v. N. Y. and N. H. Railroad, 106 160; Ely v. James, 123 36. 138. Nor to a refusal to instruct, upon the assumption that a witness is credible, or not credible, where there is a conflict of testimony, or the witness is open to suspicion. Comm. v. Bosworth, (6 G.) 72 479; Bailey v. Bailey, 97 373; Comm. v. Broadbeck, 124 319. 139. Nor to a refusal to instruct the jury as to the effect of certain portions of the evidence, properly to be considered in connection with other facts in evidence. Green v. Boston & Lowell Railroad, , 128 221; Delaney v. Hall, 130 524; Bugbee o. Kendricken, 132 349; Mur- phy «. Boston & A. Railroad, 133 121. 140 Nor to a refusal to instruct upon a count not submitted to the jury. Bugbee v. Kendricken, 132 349. 141. The extent to which the presiding judge shall state portions of the evidence to the jurV » matter of discretion, to which an exception does not lie. Shaw v. Tompson, 105 345. a}t\?° °{ comm ents upon the facts, which uo not trench upon the province of the jury. Dodge «. Emerson, 131 467. Vol 1—66 143. It is discretionary with the judge, whether to put inquiries to the jury as to die grounds of their verdict; and if he does so, their answers have the effect of special findings, and may be made part of the record. Spurr v. bhelburne, 131 429. See, also, Dorr v. Fenno, (12 P.) 29 521; Spoor v. Spooner, (12 Met.) 53 281; Lawler v. Earle, (5 A.) 87 22; Mair v. Bassett, 117 356. 144. An exception does not lie to the judge's refusal to answer a question of a juror, as to what will become of the property, if the will in controversy is set aside. Woodbury v. Obear, (7 G.) 73 467. 145. It is not a ground of exception, that the presiding judge suggested to the jury a theory, upon which conflicting testimony might be reconciled. Dole v. Thurlow, (12 Met.) 53 157. 146. The presiding judge is not required to state principles of law, even if they are correct and asked for, unless the evidence or the condi- tion of the case requires it. Howes v. Grush. 131 207. See, also, Drake *. Curtis, (1 C.) 55 395; Wells v. Prince, (15 G.) 81 562; Stearns v. Janes, (12 A.) 94 582; Lake v. Clark, 97 346; Stone v. Sanborn, 104 319; Peterson «. Farnum, 121 476; Bourne v. Buffington, 125 481 ; Coker v. Ropes, 125 577; Salomon «. Hathaway, 126 482. 147. Or on a supposed state of facts, where there is no evidence of such facts, or they do not exist. Comm. v. McCann, 97 580; Wether- bee v. Norris 103 365; Northcoate v. Bachelder, 111 322; Phillips «. Cor- nell, 133 546. 148. Thus, that uncorroborated confessions are insufficient to convict, where the prisoner's confessions are corroborated. Comm. v. Tarr, (4A.) 86 315; Comm o. McCann, 97 580. 149. Or that the plaintiff, in an action to re- cover damages for negligence, did not exercise , due care, where the facts upon which that ques- tion depends are controverted. Brooks v. Somerville, 106 271. 150. So where a party putting in evidence, is permitted to withdraw it, a refusal to give in- structions, appropriate only if the evidence was in, is not a ground of exception. Hayes v. Kelley, 116 300. 151. The presiding judge may refuse to fuse to instruct the jury, upon a hypothetical state of either the facts or the law. Comm. ■». Rock, (10 G.) 76 4; Ridg- way «. Bowman, (7 C.) 61 268. 152. Where the presiding judge, in an action against a railroad corporation for expelling the plaintiff from a car, has ruled that he was wrongfully in the car, an instruction that if he was wrongfully there, the defendant might use reasonable force to expel him, is not open to exception as hypothetical. Coleman v. New York & N. H. Rail- road. 106 160. 153. And the statement to the jury of the rule of law, upon a hypothetical state of facts, 522 EXCEPTION, II, (1), (I), (J). by way of explanation or illustration, affords no foundation for an exception. Melledge «. Boston 1. Works, (5 C.) 59 158; Jones v. Root, (6 G.) 72 435. (I.) Application for a new trial or a review. [See, also. New Triai* I, (1)1 Keview, I.] 154 The provision in P. S., Ch. 153, § 8, allowing an exception on a motion for a new trial, relates to a motion based upon something which has occurred since the trial, or was not known until after the trial, which raises a question of law. Comm. v Morrison, 134 189. See, also, Lowell Gas L. Co. ■». Bean, (1 A.) 83 274; Merritt v. Morse, 113 271. 155. A motion for a new trial, based upon i rulings during the trial, to which the party failed to except, or upon newly discovered evi. dence, or upon the allegation that the verdict is against the weight of evidence; is addressed to the discretion of the court, and an exception does not lie to the exercise thereof. Gray v. Bridge, (11 P.) 28 189: Shea v. Lawrence, (1 A.) 83 167; Lowell Gas L. Co. s. Bean, (1 A.) 83 274; Gif- ford«. Brownell, (2 A.) 84 534; Phillips v Soule, (6 A.) 88 150; Kidney e. Richards, (10 A.) 92 419; Whittaker e. West Boylston, 97 273; McAllister v. Burrill, 98 334; Stetson v. Medford, 109 242; Hadley v. Citizens' Sav. Inst'n, 1'23 301; Behan v. Williams, 123 366; Aldrich v. Springfield, etc., R. R., 125 404; Wamesit Co. v. Lowell & A. R. R., 130 455; Comm. ■». Morrison, 134 189; Clapp v. Clapp, 137 183; Jroustra v. Bourges, 141 7. 156. So where a verdict is set aside and a new trial granted, for an omission to put in evi- dence a material deed. Greene v. Farlow, 138 146. 157. An exception does not lie to the refusal of the presiding judge to take a case from the jury, or to grant a new trial, for the interest or bias of a juror, unless his decision involved some question of law. Gifford v. Brownell, (2 A.) 84 534. 158. So where, upon a motion to set aside a verdict for excessive damages, the judge gives the plaintiff an option to remit a part, and allows the verdict to stand for the residue. Doyle v. Dixon, 97 208. 159. So as to the verdict of a sheriff's jury, where the allegation is that the officer, having the jury in charge, misbehaved himself. Brady v. Am. Print Works, 119 98. 160. Where the evidence was not conflicting, a motion for a new trial presents a question of law, which may be reviewed on exception. Spaulding v. Knight, 118 528. 161. So where the decision involves a ruling upon the competency of evidence, Woodward v. Leavitt, 107 453. 162. So where a verdict in a criminal cause is improperly rendered, and a motion for anew trial is filed the same day. Comm. v. Tobin, 125 203. 163. So where a paper is improperly read by the jury during their deliberations. Munde v. Lambie, 125 367. 164. A petition for a review is substantially an application for a new trial; and the cases, where the court has entertained -exceptions to rulings upon motions for a new trial, or peti- tions for leview, are those of questions of law, affecting the jurisdiction and powers of the court below, over the application; or the admis- sibility of evidence at the hearing thereof; or which could not have been raised before the verdict. Dearborn ®. Mathes, 128 194. See, also, Davenport v. Holland, (2 C.) 56 1; Tripp v. Brownell, (2 G ) 68 402; Con- verse v. Carter, (8 A.) 90 568; Weeks e. Adamson, 106 514, Boston v Robbins, 116 313; Todd v. Barton, 117 291. 165. Thus, where the objection that the plain- tiff was a foreign administrator, was not taken during the trial, although the defendant swore that he did not know that letters were not taken out here; and after verdict the de- fendant moved for a new trial on that ground, which was denied; and, after the plaintiff had taken out letters here, judgment was rendered on the verdict, whereupon a petition for review was denied; the defendant's exceptions to the denial of the motion and petition were over- ruled. Dearborn v. Mathes, 128 194. 166. The rulings of the judge upon the ad- mission and rejection of testimony, upon a petition for review, or upon any other question of law, or of legal right of the parties, may be reviewed on exception; and his power to deter- mine the whole matter does not involve the right to do so arbitrarily, and in disregard of the legal modes of trying the question before him. Richardson v. Lloyd, 99 475. (J.) Auditor's report. [See, also, Auditor.] 167. The decision of the court, upon a motion to recommit en auditor's report rests in discretion, and cannot be reviewed on excep- tions. .. „„ Butterworth v. Western Ass ce Co. , lo* 489. See, also, Kendall «. Weaver, (1 A.) 83 277; Monk v. Beal, (2 A.) 84 585; Packard v. Reynolds, 100 153. 168. A ruling ft the trial, allowing the read- ing of an auditor's report, parts of wmcu have been objected to, does not lay the founda- tion of an exception, if the jury are properly instructed. _ „„„ Fair v. Manhattan Ins. Co., 114 **>■ 169. Nor does a permission given to the plaintiff to withdraw it, after it has been read Hayes v. Kelley, 116 300. EXCEPTION, II, (1), (K), (L); II, (2). 523 (K.) Other matters of discretion. [See, also, Sex Off, III, (3).} 170. A motion to discharge an agreement waiving a jury trial, in an action at law, is ad- dressed to the discretion of the court, and an exception does not lie to the denial thereof. Dennie v. Williams, 135 28. 171. Where interrogatories to a deponent are remote, and apparently irrelevant, the decision of the judge to retain them is not open to ex- ception. Elliott e. Lyman, (3 A.) 85 110. 172. The granting or refusing permission to file further Interrogatories is discretionary, and not open to exception. Hancock v. Franklin Ins. Co., 107 113. 173. So is the refusal of a nonsuit for the plaintiffs failure to answer interrogatories of the defendant. Stern v. Filene, (14 A.) 96 9; Hard- ing v. "Noyes, 125 572. 174. It is discretionary with the presiding judge, whether to order a bill of particulars or specification of facts in either a civil or criminal cause, or require the party to specify objections more distinctly. Comm. o. Giles, (1 Gt.) 67 466; Gardner v. Gardner (2 G.) 68 434; Comm. «. Wood, (4 G.) 70 11; Ward v. Fuller, (7 G.) 73 179; Comm. «. Eyan, (9 G.) 75 137; Blake v. Everett, (1 A.) 83 248; Harrington D.Harrington, 107 329. 175. Where a verdict of guilty had been rendered upon charges of fraud against a poor debtor,_ and on the defendant's motion for a new trial, the verdict was set aside as to some of the charges, whereupon, on the plaintiff's motion, those charges were stricken from the record, this was within the discretion of the judge, and no exception lies. Chapin v. Haley, 133 127. 176. Whether any or what issues shall be submitted to a jury, in a probate appeal or an equity cause, is matter of discretion, and the ruling may he reviewed on appeal, not by ex- ception. J Dow®. Tremont Nat. Bk., 128 349; per Geat, C. J., p. 356. (L.) Rule where the discretion has not been exercised. .J 77 - though the superior court may, in its Z? e ^'i e j Mi(ie ^verdict of a jury in a £w i? ^ ama S es . y^ if the judge does not H*J» discretion, and rules at matter of TJrt v part ^ is entitled to a new trial, an exception lies. 130^455 P ' °°' ®* LoweU& A - Railroad, fin™; ii°„ W - here a ^e. havin g discretion to rule., thS"! 011 ? convict ed defendant, or both, 2J: o t h \ llas no such discretion, and SX& t0 be fined and ^prisoned, an Comm. e. Fontain, 127 452. C2.) Immaterial rulings and Incompe- tent evidence. 179. The admission by the presiding judge, under objection, of irrelevant testimony, or his erroneous ruling upon an immaterial point of law, is not a sufficient foundation for an excep- tion, unless if affirmatively appears that the exceptant was, or may have been, prejudiced thereby. Comm. v. Bailey, (11 C.) 65 415; Glover e. Holbrook, (5 A.) 87 155; Packard v. New Bedford, (9 A.) 91 200; Kingman «. Tirrell, (11 A.) 93 97; Baker v. Gerrish, (14 A.) 96 201; Mer- rick v. Plumley, 99 566; Richards v. Doe, 100 524; Comm. v. Kimball, 108 473; Wing t>. Chesterfield, 113 353; Williams v. Taunton, 125 34; Comm. v. Kennedy, 136 152; Warner v. Jones, 140 216. 180. Thus the admission of an improper question will not vitiate the verdict, if the wit- ness did not answer it, or if his answer was proper, or the answer is not given in the bill of exceptions. Great Barrington v. Austin, (8 G.) 74 444; Harris v. Thayer, 125 443. 181. So if incompetent testimony is admitted under a count, which is afterwards abandoned, an exception thereto falls. Comm. v. Lincoln, (9 G.) 75 288. 182. So an immaterial remark to the jury furnishes no ground of exception. Comm. v. Blood, (U G.) 77 74. 183. So of the erroneous rejection of a wit- ness, who can prove nothing that is relevant. Bates e. Barber, (4 C ) 58 107. 184. So of the admission of incompetent evi- dence, to.prove a point conceded by the adverse party, or proved by other evidence. Roberts «. Wentworth, (5 C.) 59 192; Comm. o. Castles, (9G.) 75 121; Doane v. Baker, (6 A.) 88 260; Sibley «. Lef- flngwell, (8 A.) 90 584; Bragg e. Bos- ton & W. Railroad, (9 A.) 91 54; Peebles v. Boston & A. Railroad, 112 498. See, also, Crittenden u. Field, (8 G.) 74 621; Stetson d. Dow, (16 G.) 82 372; Comm. v. Cooper, 130 285; McAvoy ». Wright, 137 207; Jennings «. Whitehead, etc., Co., 138 594. 185. But if irrelevant evidence is calculated to prejudice the jury against the exceptant, a new trial will be granted. Crowell ». Porter, 106 80. 186. Where the plaintiff's evidence is insuffi- cient to maintain his action, he cannot maintain an exception to incompetent evidence given by the defendant. Bliss v. Clark, (16 G.) 82 60. 187. An exception does not lie to the exclu- sion of evidence insufficient to prove completely a fact, if no other evidence to prove the fact is offered. Hobart v. Plymouth County, 100 159; Craft v. Boston, 109 519. 188. The admission of incompetent evidence for one party, does not entitle the other party to produce similar evidence. Kingsley v. Slack, (5 C.) 59 585. 524 EXCEPTION, H, (2), (3). 189. The rejection of incompetent evidence for an erroneous reason, lays no foundation for an exception. Bean v. Hubbard, (4 C.) 58 85. 190. If a party required to prove an instru- ment, proves it, semble, that his exception to the requirement fails. Comm. v. Putnam, (4 G.) 70 16. 191. An exception does not lie to the exclu- sion of evidence subsequently admitted, or where equivalent testimony is subsequently ad- mitted. * Robinson v. Fitchburg & W. Railroad, (7 G) 73 92; Hodges v. Scott, 118 530; Chandler v. Jamaica P. Aqueduct, 125 544; Hopkins v. Damon, 138 65. 192. Nor to the disallowance of a question to a witness, where he was allowed to testify to the matter which it was intended to call out. Hendrick v. Whittemore, 105 23. 198. Where the presiding judge erroneously rules as to the measure of damages, the defend- ant's exception thereto fails, if he grants the defendant's motion for a new trial, unless the plaintiff remits the excess, and the plaintiff ' does so. Trischet «. Hamilton Ins. Co., (14 G.) 80 456. 194. If an answer to an interrogatory to a party shows that it is immaterial, and can do him no harm, an exception does not lie to an order compelling him to answer. Todd v. Bishop, 136 386. 195. Where requests for instructions upon a point were made, upon the trial of an indict- ment, and the jury, in answer to a question by the judge, said that they found the point against the defendant, the answer of the jury renders the requests immaterial. Comm. v. Goodwin, 122 19. 196. So in a civil action. Bowditch Ins. Co. *>. Buffum, (2 G.) 68 550. 197. An erroneous ruling against the plain- tiff, on the measure of damages, does not lay the foundation of an exception, where the jury find a general verdict for the defendant. Robinson v. Fitchburg & W. Railroad, (7 G.) 73 92; Poland v. Brownell, 131 138. 198. So, an erroneous ruling in favor of the the plaintiff, on the measure of damages, or his right to recover upon one item of his claim, does not lay the foundation of an exception, if the verdict shows that the jury disallowed the erroneous claim. Couillard «. Duncan, (6 A.) 88 440; Walker v. Fitchburg, 102 407; Pratt «. Paine, 119 439. * 199. So an erroneous ruling that the action can be maintained under the declaration, is cured by an amendment of the declaration. Birnbaumu. Crowninshield, 137 177. 200. So objections to an auditor's report become immaterial, if the verdict shows that the items objected to were not allowed. Phillips v. Cornell, 133 546. 201. So if, in slander, the jury find a verdict for the defendant, on the ground that the words were privileged, questions as to the truth of the words, and a justification, become imma- terial. Lawler v. Earle, (5 A.) 87 22. ' 20a. So if the declaration contains several causes of action, and a general verdict is ren- dered for the plaintiff for nominal damages, he cannot maintain an exception to a ruling, or a refusal to rule, upon any question except dam- ages. Rowley t>. Ray, 139 241. 203. For other illustrations of the rule, that the verdict of the jury renders immaterial' erro- neous rulings, upon questions which the verdict renders immaterial, see Comm. v. Turner, (3 Met.) 44 19- Davis v. Elliott, (15 G.) 81 90; Wolcott v. Smith, (15 G.) 81 537; Kimball « Hildreth, (8 A.) 90 167; Comm. t. Cashman, (8 A.) 90 580; Cunningham v. Parks, 97 172; Smith «. Kimball 105 499; Hayden v. Stone, 112 346; Freelove u. Freelove, 128 190. 204. So, an exception does not lie to the sub- mission of a question of law to the jury, if the verdict shows that they decided it correctly. Ricker v. Cutter, (8 Q.) 74 248; Krebs v. Oliver, (12 G.) 78 239; Smith ». Faulkner, (12 G.) 78 251; Marble v. Moore, 102 443; Goodnow «. Daven- port, 115 568; Comm. v. Brown, 121 205. An exception does not lie to the refusal to give a ruling requested, which is not appli- cable to the facts proved. Pratt v. Amherst, 140 167. 206. Or to a refusal to admit evidence to con- tradict immaterial evidence thus given. Cowles v. Merchants, 140 377. 207. Where the cause is tried by a judge without a jury, an exception to a refusal to rule, based upon and appropriate to the evi- dence, is rendered nugatory by a finding of fact, which renders the ruling immaterial. McLauthlin v. Wilder, 138 393. (3.) Matter of fact) Including rulings on preliminary question*. [See, also. Questions of Law, etc.] 208. Where a question of fact, preliminary to the competency of a particular witness, or of a particular kind of testimony, is to be decided by the presiding judge, his decision thereupon cannot be reviewed upon exceptions; unless it appears that the decision was based upon some erroneous view of the law; or, upon a report ol the entire evidence, it appears to be without foundation. Walker «. Curtis, 116 198. 209. As upon the question whether a witness offered, has a sufficient knowledge of right and wrong, and of the nature of the obligation ol an oath. Comm. v. Mullins, (2 A.) 84 295. 210. So, whether the loss of an instrument is sufficiently proved, to admit secondary evidence of its contents. Comm. v. Morrell, 99 542. EXCEPTION, II, (3), (4). 525 Or whether a writing, offered as a standard of comparison, is the genuine handwriting of the person to be charged. Costelo v. Crowell, 139 588. 811. For numerous other illustrations of the application of this principle', see Evidence, passim. See, also, the following cases: Comm. o. Hills, (10 C.) 64 530; O'Brien v. Barry, (4 G.) 70 604; O'Con- nor v. Hallinan, 103 547; Brown v. Leach, 107 364; McGIynn v. Brock, 111 219. 212. The principle applies to a ruling whether there is sufficient evidence of altera- tion upon the face of an instrument, to require explanation before it can be read to the jury, or of a record to render it competent. Mansir n. Crosby, (6 G.) 72 334; Ives ». Farmers' Bk. (2 A.) 84 236; Learned v. Bailey, 111 160; Comm. n. Galligan, 113 203. 213. Upon a motion to set aside a verdict, and for a new trial, by reason of a juror's disability by sickness, the decision of the question whether he was able to perform his duty, can- not be examined upon an exception. Hubbard v. Gale, 105 511. 214. In a criminal cause, an exception does not lie to a refusal to instruct the jury upon matters of fact. Comm. v. Brown, 121 69. See, also, Comm. v. Dower, (4 A.) 86 297. 215. In an action by a mortgagee of goods against an attaching officer, under a writ against the mortgagor, an exception does not lie to the refusal of the judge to rule, that the demand made by the mortgagee was for too large a sum, unless the excess was found at the trial or can be ascertained from the bill of excep- tions by mere computation. Folsom ii. Clemence, 111 273. 216. Where a cause is tried by a judge, with- out a jury, if there is anv evidence, proper to be considered by him, tending to sustain his nnaing upon any question of fact, his finding is conclusive, and cannot be reviewed upon ex- ceptions. Barrett v. McHugh, 128 165. 217. And where a cause is tried by a judge without a jury, his findings of fact upon con- meting evidence are conclusive, although the of exceptions states all the evidence. Mmundson v. Brie, 136 189. See also Fitchburg Railroad v. Freeman fe iio 7 Sn.*° 1: Kette11 «■ Fo °te, (3 A. «.? i 8; W^on »■ Nichols, (3 A.) 85 583; Jamaica P. Aqueduct v. Chandler, Q^"«™ 1 ou 15 i ; , Crock er «. Foley, (13 A.) !iL<, 6; n? effleld "' 0tis > 10 7 282 Backus i i. Chapman, 111 386; O'Conl SteL; a T5 S i V 5 w i Sweetland v. llfl iw 1 ^, 49 ; Hoar •■ Goulding, 4SR m i ; % hols "• Bucknam, 117 rww,tw \ Bur 2 s ' 11S 275; Turner HichW r*?&« 119 45 9i 'Linton .. n^i,- 12 ! 30 V Dru 1 •■ Midland m -in 127 ,, 571; GoellB - Smith, 128 f™= An S?"'Mooney, 130 166; Lang. epnngfield Sav. Inst'n, 134 232. 218. Unless a finding of fact is founded upon an error of law, or evidence which is in law insufficient to sustain it. Costelo n. Crowell, 139 588. 219. And where a finding, apparently of tact is an answer to an issue framed, and wholly depends upon the view of the law taken by the judge, upon a point as to which a ruling u asked, the question is open on a bill of exceptions. Worthen v. Cleaveland, 129 570. 220. And where the bill of exceptions states the findings as to some of the facts, and only the evidence as to the others, and that the court ruled," upon the facts found," and their legal effect, that the action could not be maintained; the plaintiff is entitled to a new trial, unless the facts so found are conclusive against him, notwithstanding all inferences to be drawn, from them, and the evidence so reported. Brooks ii. Prescott, 114 392. 221. "Where the bill of exceptions does not show that the cause proceeded to a definite de- termination of a material question of fact, a. new trial will be granted. Miller n. Robinson, (2 A.) 84 610. 222. In an equity cause, or a probate appeal, the findings of fact of a single justice may be reviewed by the full court upon appeal, but not. on a bill of exceptions. Dorrs. Tremont Nat. Bk., 128 349 See, also, Parker v. May, (5 C.) 59 336; Mahaiwe National Bk. v. Barry, 125 C4.) Insufficient or Improper objection or request. [See, also, ante, I, (2) ; I, (3) ; post. III.] 223. An objection, not taken in the court be- low, is not open upon a bill of exceptions. Spaulding v. Alford, (1 P.) 18 33; Comm. v. Stephens, (14 P.) 31 370; Wentworth v. Leonard, (4 C.) 58 414; Tebbetts v. Pickering, (5 C.) 59 83' Bickford v. Gibbs, (8 C.) 62 154; "Wash- ington Co. Ins. Co. v. Dawes, (6 G.) 72 376; Murphy «. Spence, (9 G.) 75 399; Edwards v. Carr, (13 G.) 79 234; Briggs v. Rafferty, (14 G.) 80 525; Bennett «. Clemence, (6 A.) 88 10; Cannon v. Leonard, (10' A.) 92 247; Bigelow v. Boston, 120 326; New Haven, etc., Co. ii. Campbell, 128 104; Stone v. 8i- monds, 131 457; Learned n. Hall, 133 417; Petty v. Allen, 134 265; Hodg- kins v. Price, 137 13; Talbtjt v. Taun- ton, 140 552. 224. This rule is departed from, only where there has been such a mistake or misapprehen- sion of legal principles, that the cause has re- sulted in a mistrial. Bond ii. Bond, (7 A.) 89 1. 225. Or where there is an objection to the- plaintiff's recovery which cannot be obviated by further proof. Slater v. Rawson, (1 Met.) 42 450. 226. The presumption is, that all necessary and proper instructions were given to the jury- 526 EXCEPTION, II, (4). and they are presumed to have been correct, where no exceptions thereto were 'taken Comm. v. Kneeland, (20 P.) 37 206; Campbell v. New England Ins. Co., 98 381. 227. An exception must be made at the time of the ruling complained of, not at the close of the case. Valentine ®. Middlesex R. R, 137 28. 228. An omission to give certain instructions to the jury, is not open upon a bill of excep- tions, unless such instructions were specifically requested. Brigham ». Wentworth, (11 C.) 65 123. 229. 8o an exception cannot be maintained, where the instructions were not erroneous, on the ground that they were not sufficiently full and accurate, unless a request for additional in- structions was made. Hamilton Woolen Co. ■». Goodrich, (6 A.) 88 191; Chamberlin «. Whitford, 102 448; Corrigan v. Connecticut Ins. Co., 122 298; Murphy o. Stanley, 136 133; Gay v. Boston & A. Railroad, 141 407. [See, also, tmte, I, (2).] 230. So a party cannot object to an improper argument by the counsel of the adverse party at the trial below, unless he has objected thereto at the time, or asked for instructions relating thereto. Learned «. Hall, 133 417. 231. The objection that there is a variance cannot be raised upon exceptions, unless it was distinctly taken at the trial. Smith v. Colby, 136 562. 232. A general exception to the entire charge will not be sustained; the particulars must be specified. Armour «. Pecker, 123 143; Curry ■o. Porter, 125 94; McMahon v. O'Con- nor, 137 216. 233. If proper instructions are given to the jury, the court will not scrutinize the except- ant's requests, where they are unnecessarily voluminous. Comm. v. Devlin, 141 423. 234. An exception does not lie for the admis- sion of oral testimony to prove matter of record, or matter contained in a writing, unless that specific objection was taken at the trial. Niles v. Patch, (13 G.) 79 254 235. So, where certain entries in an account book are read to the jury, the party cannot maintain an exception, because the book itself was not submitted to the jury, unless he re- quested that this should be done; although he objected to one of the entries, on the ground that it showed an alteration. Adams «. Coulliard, 102 167. 236. An exception does not lie to the admis- sion of evidence, which is competent for any purpose, unless the exceptant asks for an instruction limiting its effect. Comm. v. Sargent, 129 115; Comm, t>. Wunsch, 129 477: Potter *. Bald win, 133 427: Comm. v. Keating, 133 572; Penn Ins. Co. v. Crane, 134 56, Comm. v. Fenno, 134 217. See also, Earlo v. Earle, (11 A.) 93 {. Ghenn v. Provincetown, 105 313! Howe v. Ray, 113 88; Sweetser v Bates, 117 466. 237. And where the jury rendered a verdict of guilty against a poor debtor, upon several charges of fraud, and on a motion for a new trial, the judge set aside the verdict as to some of them, and afterwards, upon the plaintiff's motion, struck them from the record; the de- fendant cannot, upon exceptions,, contend, that evidence admitted under those charges might have improperly influenced the jury, under the others, as he did not ask to have the evidence limited. Chapin v. Haley, 133 127. 238. A defendant, who has excepted to a refusal to rule, that the plaintiff's evidence is insufficient to support a verdict, cannot avail himself of an objection that the action is pre- maturely brought, or to the form of the declara- tion, or that the proofs do not correspond to the allegations. Clarke v. Charter, 128 483. 239. An exception does not lie to a refusal to give an instruction, based upon only a portion of the evidence. Comm. v. Este, 140 279. 240. An objection that an auditor rejected proper evidence, cannot be raised on a bill of exceptions, unless it was taken at the trial in the superior court. Eagan v. Luby, 133 543. 241. Where the declaration on a policy of in- surance contains a count on the policy, and a count for money had and received, it is not open to the plaintiff to contend, upon exceptions, that he was entitled, under the second count, to recover back the premium, on the ground that the policy never attached, if he did not raise the question at the trial. McCoy v. Metropolitan Ins. Co., 133 82. 242. Where it had been ruled, that by the' true construction of certain so called "condi- tions " in a deed, as affected by other deeds of adjoining property, the "conditions" were re- strictions; and in a subsequent suit in equity, involving the construction of the same deed, the presiding judge followed the ruling; it is not open to the party to insist, upon exceptions, that the ruling was erroneous in this cause, be- cause the other deeds were not put in, where he had not called the attention of the judge to the omission. Ayling ■». Kramer, 133 12. 243. Where the presiding judge, after in- structing the jury upon a party's requeste, de- sires the party to suggest whether any variation from, or addition to, his charge is required, and the party remains silent, or assents,_ he cannot afterwards except, or raise objections to the charge upon a bill of exceptions. Coleman «. New York & N. H. K. a., 106 160; Comm. *. Costley, 118 l '> McMahon «. O'Connor, 137 216. 244. Where the judge states to the jury that certain evidence was offered, but was not ad- mitted, and must be disregarded, and, in tact, it was admitted, an exception does not he, un- EXCEPTION, II, (5), (6). 527 less Ms attention was called to the misstate- ment " Wright «. Wright, 139 177 (5.) Consent! waiver. See also, ante, II, (4).] 245. A party cannot maintain an exception to the admission of evidence offered by himself, or to the rejection of the adverse party's evi- dence, upon his objection. Nixon v. Hammond, (13 C.) 66 285; Bardweli v. Conway Ins. Co., 122 90. 246. Nor to a ruling in his own favor, or ■which he has requested. Collester 8. Hailey, (6 G.) 72 517; Brown i>. Dean, 123 254 247. Nor to an instruction given to the jury at his request. Dermis 8. Maxfield, (10 A.) 92 138; West ®. Lynn, 110 514; Comm. v. Locke, 114 288; Copp v. Williams, 135 401. See, however, Adams i>. Clark, (9 0.) 63 215. 248. So a party who has introduced evidence, and argued upon it to the jury, and asked for a ruling upon it, which was refused, cannot object that it was incompetent. Fish v. Bangs, 113 123. 249. And a party cannot object to the exclu- sion of evidence to prove a point, which the judge has ruled in his favor. Campbell 8. New England Ins. Co., 98 381. • 250. A defendant cannot maintain an excep- tion, on the ground that the jury have found against him a smaller sum, than they might have found. Hall «. Foster, 114 18. 251. The , admission, under the defendant's objection, of evidence which the jury are in- structed to disregard, affords the defendant no ground of exception, if it is competent. Comm. v. Scott, 123 222. 252. Where the presiding judge, at a crimi- nal trial, excludes a question upon the objection of the district-attorney, and afterwards the latter offers to waive the objection, the defend- ant's exception cannot be maintained. Comm. ». Hamilton, (15 G.) 81 480. 253. So where a witness declines to answer a question, and afterwards offers to answer it, a party who refuses the offer has no ground of exception. Comm. 8. Price, (10 G.) 76 472. 254. But an exception to the rejection of testimony is not obviated by an offer to waive the objection, at the close of the testimony, •where the witness is absent, and does not return until the arguments have begun. Foster 8. Thompson, (5 G.) 71 453. 255. Where an exception to the rejection of testimony has been obviated by a waiver, the party may still except to the rejection of the same evidence, at a subsequent stage of the trial. Comm. 8. Robinson, (1 G.) 67 555. 256. After counsel has offered to allow the werse party to prove any payments, made by aim and not credited, he cannot object to a payment proved, because it is not specified in the answer. Adams 8. Farnsworth, (15 G.) 81 423. 257. An exception is waived by the accept- ance of an order granting a new trial, although it leaves open only a particular question. Seccomb «. Provincial Ins. Co., (4 A.) 86 152. See, also, Sylvester 8. Mayo, (1C.) 55 308. 258. But a bill of exceptions may be tend- ered, after a motion to set aside the verdict, as against evidence, has been filed and withdrawn. Bigelow ». Blanchard, (6 C.) 60 273. 259. Where a plaintiff excepts to a ruling, and afterwards amends his declaration, so as to change the form of the action and the issues to be tried, he cannot, upon the defendant's ob- taining a verdict, rely upon his original excep- tion. Cook 8. Castner, (9 C.) 63 266; Jordan 8.Farren, (9C.) 63 266. 260. If the granting of a request for a ruling, and the refusal of another request for a ruling, are contradictory, and the refusal was right, the contradiction is in favor of the requesting party, and he has no ground of exception. Comm. v. Wardwell, 136 164. (6.) Other matters, 261. The entire charge to the jury is to be taken and construed together; and it the charge, taken as a whole, is correct, a party cannot suc- ceed upon an exception to a part thereof, al- though if taken alone, it might be erroneous. Jackman v. Bowker, (4 Met.) 45 235; Adams v. Nantucket, (11 A.) 93 203; Clark v. Soule, 137 380. 262. Where, in a criminal cause, the testi- mony of a witness for the government was admitted against the defendant's objection; and the presiding judge, after commenting unfavor- ably upon the witness, ordered his testimony to be stricken out, and no objection was made by the defendant; the defendant was not allowed to maintain an exception, on the ground that his answer was favorable to the defendant. Comm. 8. Johnson, 137 562. 263. Where two causes are tried together, an exception to the exclusion of evidence will not hold, if it was incompetent in either of them. Phillips 8. Hoyle, (4G.) 70 568. See, however, Kimball 8. Thompson, (4 C.) 68 441. 264. Where a party, having put in evidence an auditor's report, argued that the auditor had found a certain fact, he cannot maintain an ex- ception to the judge's instruction to the jury that the auditor had not found it, where he had only reported the evidence thereupon. Somers 8. Wright, 114 171 265. A new trial will not be granted, because the instructions to the jury were expressed in an abstract form, if it does not appear probable that the iury were misled. Wilson 8. Terry, (11 A.) 93 206. 266. Nor will an exception lie, where instruc- tions have been given, applicable to both classes of creditors of a dissolved copartnership, for 528 EXCEPTION, n, (6); HI. the refusal of the judge to repeat them as ap- plicable to one class. Winchester ». Whitney, 138 549. 267. Where the defendant, after answer to a declaration containing two counts, upon the plaintiff's filing a third count, interposed, by leave and consent, a demurrer to the whole declaration, but it appeared that the plaintiff and the judge understood that it was demurrer only to the new count, an exception will not lie to an order of the judge confining it to the new count. Howe d. Taggart, 133 284. 268. Where the declaration contains two counts, and the cause is properly tried upon the second count, an exception does not lie to a re- fusal to rule, that there was a variance between the first count and the proof. Butterworth v. Western Ass. Co. 132 III. Bill op Exceptions. [See, also, ante, I, (3); n, (4).] 269. A bill of exceptions should set forth the points of law raised, and the rulings thereupon, and the exceptions, and only so much of the evi- dence and other proceedings as is material thereto Burt v. Merchants' Ins. Co. 115 1; Comm. ». Costley, 118 1. 270. A bill of exceptions must be confined strictly to matters of law. Barnacoat v. Gunpowder, (1 Met.) 42 225; Boston i>. Benson, (12 C.) 66 61. 271. Exceptions to the rulings of two judges, at different stages of the same cause, should be stated in different bills allowed by each. Safford n. Knight, 117 281 272. Exceptions allowed, where a case is re- ported after verdict, should be incorporated into the report, not stated in a separate bill. Aldrich v. Boston & W. Railroad, 100 31. 273. The question whether a verdict is against evidence cannot be raised upon a bill of excep- tions. Comm. i). Morris, (1 C.) 55 391; Bos- ton v. Benson, (12 C.) 66 61; Walker v Penniman, (8 G.) 74 233; Comm. v. Merrill, (14 G.) 80 415; Comm. v. Gillon, (2 A.) 84 505; Comm. v. Hughes, (2 A.) 84 518; Denny D.Williams, (5 A.) 87 1. 274 Nor will the court, upon exceptions, de- cide upon the weight and effect of the evidence. Barnacoat v. Gunpowder, (1 Met.) 42 225- French v. Bancroft, (1 Met.) 42 502; Heywood v. Stiles, 124 275. 275 But the court will review the finding of a jury, where proper instructions or rulings were requested, if, taking all the facts as proved, the verdict was against the law; but not if there was any evidence to sustain the finding. Comm. v. Merrill, (14 G.) 80 415; Coch- rane «. Boston, (4 A.) 86 177; Polley v. Lenox I. Works, (4 A.) 86 329; Denny i). Williams, (5 A.) 87 1; Comm. u. Fitchburg R. R., (10 A.) 92 189; Rob- bins r. Potter, 98 532; Smiths. Collins, 115 388 «. 2 7 6 *V°i r -n I 4 does t not afflnnattaly appe* that the bill of exceptions contains all the evi dence. Mclntyre v. Park, (11 G.) 77 1Q2 Gunnison ®. Langley, (3 A.) 85 837 277. Semble, that upon the question, whethei the whole evidence is sufficient to warrant the verdict, the court will consider incompetem evidence not objected to. Comm. v. Gafley, 122 334. . 278. Where the cause is tried by a judg( without a jury, the rule is the same as if it wa* tried by a jury. Miles v. Barrows, 122 579. 279. No objections can be considered, whicl do not appear affirmatively by the bill, to have been raised and passed upon by the court, dur- ing the trial, or in the instructions to the jury, and then excepted to. The objections must be specific, unless the testimony is incompetent 01 the ruling erroneous, for any purpose. West Springfield Par. 9. Root, (18 P.) 35 318; Waters*. Gilbert, (2C.) 56 27; Wheeler 9. Rice, (8 C.) 62 205; Rich- ardson 9. Curtis, (2 G.) 68 497; Leathe 9. Bullard, (8 G.) 74 343; Hubbell «. Bissell, (2 A.) 84 196; Hildreth 9. Mar- tin, (3 A.) 85 371; Cox 9. Jackson, (6 A.) 88 108; Couillard 9. Duncan, (6 A.) 88 440; Burke 9. Savage, (13 A.) 95 408; Comm. v. Campbell, 103 436; Shaw ». McGregory, 105 96; Brown 9. Leach, 107 364; Comm. 9. Kane, 108 423; Downs 9. Hawley, 112 237; Packer 9. Lockman, 115 72; Burlen 9. Shannon,. 115 438; Draper v. Saxton, 118 427; Britton 9. Worcester Co., 123 309; Ames 9. Mc- Camber, 124 85; Franklin Sav. Inst. e. Reed, 125 365; Goodnow 9. Hill, 125 587; Childs «. Franklin Co., 128 97; Stone v. Sargent, 129 503; Bell 9, Walsh, 130 163; Simmons 9. Lawrence D. Co., 133 298; Hatch 9. Kenny, 141 171. I See, also, ante, arts. 238 to 232. ] 280. And where a specific objection is thus taken, the exceptant cannot insist upon a dif- ferent specific objection. Howard 9. Hayward, (10 Met.) 51 408. 281. But an objection to four deeds, with specification of objections to three, covers the four. Rose v. Taunton, 119 98 282. And where judge states that all opjec- tions shall be open to the exceptant, a specifica- tion is unnecessary. Gallup 9. Robinson, (11 G.) 77 20. 283. A party cannot insist, under a general objection to testimony, that it was a privileged communication. Nash 9. Hunt, 116 237. 284. Where a party has omitted to claim all to which he was entitled upon the facts, the error cannot be corrected upon a bill of excep- tions, which presents no questions of law 01 fact upon that point. „ . ,. . . Haverhill L. & F. Ass'n®. Cromn, (4 A.) 86 141. EXCEPTION. III. 529 285. An objection that the district-attorney in a criminal cause was allowed to ask a ques- tion, not covering the period between the com- plaint and the first trial, cannot be taken on exceptions, if the objection was general. Comm. «. Hogan, (11 G.) 77 312. 286. An objection that the jury were allowed to convict, on proof of merely using a tenement for an illegal purpose, upon an indictment for keeping and maintaining it, is not available, where other grounds of defence were alone in- sisted upon. Comm. v. Heffron, 102 148. 287. Where the defendant in an indictment for a sale of intoxicating liquor, requests the judge to rule that the evidence is insufficient to warrant a conviction, he cannot, on exception to the refusal, insist that the evidence failed to prove that the sale was without authority. Comm. v. Stahl, (7 A.) 89 303. 288. But upon such a request, and an excep- tion to so much of the rulings, as is not in accordance with the instructions asked, a de- fendant in a civil cause has open to his excep- tions, all the instructions on that point. Stubbs «. Johnson. 127 219. 289. Instructions to the jury, not contained in the bill of exceptions, are presumed to have been correct and sufficient. Townsend ». Hargraves, 118 335. 290. Where instructions given assume the facts to be as testified by the plaintiff, it cannot be objected, that they would not allow the plain- tiff to recover, upon another theory inconsistent with his testimony. Searles o. Ladd, 123 580. 291. An exception cannot be sustained, to a refusal to give an instruction asked for, unless the bill shows there were facts in evidence to call for it. O'Neil «. Wolffsohn, 137 134. See, also, Fuller v. Ruby, (10 G.) 76 285; Wells e. Prince, (15 G.) 81 562; Tap- pan v. Burnham, (8 A.) 90 65; Stearns «. Janes, (12 A.) 94 582; Milk v. Middle- sex Railroad, 99 167; Dale «. Harris, 109 193; Poster e. Ropes, 111 10; Canfield v. Canfield, 112 233; Fish v. Bangs, 113 123; Wilcox t>. Conway, 115 561; Buxton v. Somerset P. Works, 121 446; Chandlers. Jamaica P. Aq., 125 544; Coker i>. Ropes, 125 577; Salomon n. Hathaway, 126 482; Comm. «. Gilson, 128 425; Comm. v. Sargent, 129 115; Horton«. Cooley, 135 589; Whitehead & A. Mach. Co. v. Ryder, 139 366. 292. Nor unless it appears that the exceptant was, or might have been, prejudiced. Comm. «. Pierce, (11 G.) 77 447; Comm. v. Carey, 108 484; West v. Lynn, 110 514. 293. Kor can it be sustained, upon a refusal 1 « Riding Judge, in a criminal cause, to »S?® th S. S? ve ™ment to the time and place siateuinthe indictment, unless the bill shows mat evidence of acts elsewhere was given. Comm. v. Pierce, (11 G.) 77 447. > w" ^ or J° a "^g ^ t0 tn e challenging of » juror, by the attorney for the Commonwealth Vol. I— 67 - if the bill does not show that he challenged a juror. Comm. v. Carey, 108 484. 295. If the bill sets forth the instructions given and refused, but does not allege that they were all the instructions given, the exceptions thereto fail. Ghenn v. Provincetown, 105 313. 296. Where the admission of evidence is excepted to, and the bill of exceptions does not give all the evidence, or state the grounds upon which the evidence in question was admitted, or show with what instructions it was submit- ted to the jury, the only question is whether the evidence was competent in any aspect. Berrenberg v. Boston, 137 231. 297. So where the judge rules that there is no evidence for the jury, and directs a verdict for the defendant, and the bill of exceptions contains only statements of what the plaintiff claimed, that the evidence tended to prove. Lamb v. Old. Colony R R., 140 79. 298. And where the bill mentions the omis- sion of any evidence upon a particular point, and that the defendant asked for a ruling that the action could not be sustained, the only question, upon his exception, is whether evidence upon that point was essential to maintain the action. Alexander v. Carew, (13 A.) 95 70. See, also, Negus ». Simpson, 99 388. 299. Where an exception is taken by the de- fendant, to the refusal of the judge to set aside the verdict, and grant a new trial, on the ground that the verdict is for a larger sum than the instructions warrant, the exception will not be sustained, unless the bill presents sufficient facts to show that the judge erred, as matter of law, in holding that there had been no error of com- putation to the exceptant's prejudice. Hill v. Crompton, 119 376. 300. An exception does not lie to the admis- sion or rejection of evidence, unless the bill of exceptions shows, that the evidence or the decis- ion was material to the issue, or that the except- ant was necessarily prejudiced by it. Parmenter v. Coburn, (6 G.) 72 509; Collins v. Stephenson, (8 G.) 74 438; Fuller o. Ruby, (10 G.) 76 285; Comm. v. Collins, (16 G.) 82 29; Currier v. Silloway, (1 A.) 83 19; Kingman v. Tir- rell, (ll'A.) 93 97; Burke v. Savage, (13 A.) 95 408; Comm. 1>. Jennings, 107 488; Wood v. Willis, 110 45"4; Otis v. Hadley, 112 100; Smith v. Collins, 115 388; Comm. v. Sturtivant, 117 122; Woodard ». Eastman, 118 403; Boston & M. R. R. v. Montgomery, 119 114; Pennock u. McCormick, 120 275; Jones v. Smith, 121 15; Paul v. Bissett, 121 170; Morville «. Am. Tract Soc, 123 129; Andrews v. Matthews, 124 109; Comm. «. Sumner, 124 321; Dono- van «. Springfield, 125 371; Morris 11. '. Farrington, 133 466; Sherley ». Mc- Cormick, 135 126; Cowdrey «. Wo- burn, 136 409; Gage M. Co. v. Pair, 138 462. 301. So where a portion only of a paper was admitted, and the bill justifies the inference that the remainder contained nothing material. O'Reilly ». Duffy, 105 243. 530 EXCEPTION, III. 302. So if the competency of evidence re- jected, depends upon the existence of special circumstances, it must appear that they existed, and that the evidence was offered for that pur- pose. Atherton v. Atkins, 139 61; Comm. ». Blood, 141 571. 308. So if the bill of exceptions fails to dis- close sufficiently the state of the evidence, at the time the evidence objected to was admitted, to show that it was improperly admitted. Comm. v. Salmon, 136 431. See, also, Liverpool Wharf v. Prescott, (4 A.) 86 22; Burghardt ». Van Deusen, (4 A.) 86 374; Earle «. Earle, (11 A.) 93 1; Lawton v. Chase, 108 238; Merritt 1). Morse, 108 270; Whitcher v. Mc- Laughlin, 115 167; Jones «. Smith, .121 10; Wilson v. Lawrence, 139 318; Johnson v. Parsons, 140 173. 304. So a ruling, upon the construction of statutes and decisions of another state, eannot be reviewed, unless the bill of exceptions shows what statutes or decisions were before the court below. Skinner i>. Gray, 130 5; Sherley v. McCormick, 135 126. 305. If, upon an exception to the admission of evidence, there is any point, consistent with the facts shown in the bill, upon which it could have been admitted, the exception fails, unless the bill shows a request and refusal to limit the application. Moody «. Sabin, (9 C.) 63 505; Earle v. Earle, (11 A.) 93 1; Ghenn «. Prov- incetown, 105 313; Downs «. Hawley, 112 237; Howe v. Ray, 113 88; Packer «. Lockman, 115 72; Sweetser v, Bates, 117 466; Safford v. Grout, 120 20; Hopkins ■». Alley, 120 223; Higgins v. Andrews, 121 293. 306. If the record of a judgment would be admissible, in connection with oral testimony of a particular character, and the bill states generally that oral testimony was offered, it will be presumed to have been of that character, Merritt v. Morse, 108 270. 307 An exception cannot be sustained, where the bill merely shows that an incompetent declaration, or other testimony, was admitted, without stating what it was. Hackett v. King, (8 A.) 90 144; Comm. «. O'Brien, 119 342. 308 So where the allowance of a question to a witness is excepted to, and the bill does not show that his answer injured the exceptant. Hobart «. Plymouth Co. 100 159; Kershaw v. Wright, 115 361. 309. No exception lies to the exclusion of evi- dence, incompetent on one ground, where the bill does not show that it was offered for a pur- pose, for which it is competent. Brown v. Leach, 107 364; Britton v. Worcester Co., 123 309. 310. Nor to the rejection of a witness as an expert, on the ground that he was not qualified, where the hill does not state the evidence, upon which the decision was made. Campbell v. Russell, 139 278. See, also, Comm. v. Sturtivant, 117 122; Perkins v. Stickney, 132 217. 311. The objection that the consideration oi a contract is not correctly stated in the declara- tion, is not open upon a bill of exceptions which states that no question was made con- cerning the pleadings. Raymond v. Rhodes, 135 337. See also, Deshon v. Dyer, (4 A.) 86 128. ' 312. If the bill of exceptions does not show that it was contended that evidence, admitted without objection, was competent upon more than one issue, it is not a ground of exception that the jury were instiucted to consider it as bearing only upon that issue. Baker ». Gavitt, 128 93. 313. After verdict, it will be presumed that plaintiffs, suing as a corporation, proved that they were incorporated. British Am. Land Co. v. Ames, (6 Met ) 47 391. '' 314. A ruling against the party who has the verdict, cannot be examined upon an exception taken by the adverse party. Cushing v. Boston, 124 434 315. Unless the bill "states the evidence, and shows that the objection was taken below, a ruling upon a question of variance cannot be reviewed. Hutchinson v. Gurley, (8 A.) 90 23; Kittredge «. Russell, 114 67. 316. And the objection, that upon the evi- dence the action cannot be maintained, does raise the question of variance. McLean «. Richardson, 127 339. 317. A statute of another state cannot be con- sidered on a bill of exceptions, unless it is made part of the bill. Knapp v. Abell, (10 A.) 92 485; Up- ham v. Damon, (12 A.) 94 98; Kline v. Baker, 99 253; Haines «. Hanrahan, 105 480. 318. No exception lies, to the exclusion of evidence of quality of goods, from a sample, unless the bill shows that the person, who se- lected the sample, was competent to judge of its comparative quality. Brown v. Leach, 107 364. 319. A question arising upon the pleadings cannot be raised upon exceptions, unless an objection was taken at the trial, specifically upon that ground. Sanford ». Housatonic R. R. (11 C.) 65 155; Burnett v. Smith, (4 G.) 70 50; Jones ». Sisson, (6 Q.) 72 288; Jones v. Wolcott, (15 G.) 81 541; Wall ». Provident Inst., etc., (3 A.) 85 96; Lawler «. Earle, (5 A.) 87 22; Bligh v. James, (6 A.) 88 570; Stowe «. Bowen, 99 194; Drury ». Newman, 99 256; Russell v. Bany, 115 300; Bass «. Edwards, 126 445. 320. A bill of exceptions does not open for consideration a question as to the form of the action. Brown v. Waterman, (10 C.) 64 117; Dorman «. Kane, (5 A.) 87 38. 321. Nor as to the sufficiency in law of a pleading. Batchelder v. Batchelder, (2 A.) 84 105. See, also, Troy & G. Railroad «. Newton (8 G.) 74 596. EXCEPTION, IV. 531 322 For various similar rulings, upon excep- tions 'in an action for libel, for publishing a pamphlet, where the bill of exceptions did not sufficiently set forth the facts, to show that the rulings below were erroneous, and the except- ant was prejudiced thereby, see Bigelow v. Sprague, 140 485. IV. Practice; Proceedings; Judgment. TAs to amending bill of exceptions, and amend- ing the proceedings so as to obviate an exception, see ante, II, (2); Amendment, V.l 323. A defendant will be allowed to plead a discharge in insolvency, obtained since the last continuance, in a cause brought up on excep- tions, which he waives. Lewis v. Shattuck, (4 G.) 70 572; Swan v. Easterbrooks, (16 G.) 82 520. 324. The allowance of exceptions stays the proceedings in the superior court, until they are disposed of. Gassett v. Cottle, (10 G.) 76 375. 325. If the exceptant fails to enter the excep- tions, the adverse party may do so, and have an affirmance'. Gassett v! Cottle, (10 G.) 76 375. 326. But if the supreme judicial court re- fuses to take cognizance of exceptions, brought up from the superior court, the latter court should bring the cause forward by continuances, and enter up judgment against the exceptant. Comm. v. Moore, (3 P.) 20 194. 327. Where a party files exceptions to an in- terlocutory order of the superior court, he may enter the exceptions in the supreme judicial court, have them dismissed there, and then pro- ceed to trial, bringing the cause forward on the docket. Ely v. Ball, (8 P.) 25 352. 328. A misrecital of the verdict, in a motion contained in a bill, will not affect the verdict as shown by the record. Comm. v. McGrath, 115 150. 329. Copies certified to the supreme judicial court, cannot be controlled by papers, alleged to be the originals. Comm. v. Thornton, (14 G.) 80 43. 330. The transmission of copies of the papers cannot be dispensed with by counsel's agree- ment. Williams v. Kenney, 98 142. 331. And the supreme judicial court, upon the hearing of a bill of exceptions, cannot con- sider a statement of facts, agreed to by the par- ties, and not submitted to the judge below. Lee ii. Kilburn, (3 G.) 69 594; Ashley ». Boot, (4 A.) 86 504. 332. Insufficient proof a record, or the failure to prove a foreign statute, cannot be cured by producing the record or the statute upon the argument. Rich v. Lancaster Railroad, 114 514; Murphy v. Collins, 121 6. 333. An indictment remitted to the court be- low, by the supreme judicial court, after dis- posing of exceptions, may be thus remitted at a term then in session; but if no express direc- tion is given, it goes to the next term for the same county. ( Comm. v. Robinson, (1 G.) 67 555. 334. After exceptions taken in the superior court have been overruled, and a rescript sent down, and entered in that court, a motion for a new trial, on grounds not affecting the correct- ness of the decision upon the exceptions, cannot be made in the supreme judicial court. Comm. ■». Scott, 123 418. See, under the former statute, Comm. ». Peck, (lMet.) 42 428. 335. An action of trespass cannot be trans- mitted to the supreme judicial court, upon a •pro forma ruling that the plaintiff cannot main- tain the action, where the question of unneces- sary force was not disposed of. Goddard v. Perkins, (9 G.) 75 411. 336. The supreme judicial court may grant a review of its judgment, where, by mistake, the exceptions taken were not entered. Bowditch Ins. Co. v. Winslow, (3 G.) 69 415. 337. Where the facts are insufficiently stated in a case agreed upon, the cause will be re- manded to the court below. Merriam -a. Merriam, (6 C.) 60 91. 338. On an exception to the overruling of the defendant's objections to an indictment, if the exception is sustained, an arrest of judgment follows. Comm. v. Collins, (2 C.) 56 556. 339. Where a defendant, convicted upon an indictment, alleged exceptions, and entered into a recognizance to prosecute them, but failed to enter them or argue them, the supreme judicial court will issue process to bring him in, and will sentence him. Comm. ■». Dow, (5 Met.) 46 329. 340. Exceptions filed by the defendant may be allowed, although the defendant has died, and the action does not survive; and if they are overruled, judgment may be rendered nunc pro tunc, although no administrator has been ap- pointed. Kelley v. Riley, 106 339; Tapley ». Martin, 116 275. 341. Where the defendant's exception is sus- tained, on the ground that the case was within the statute of frauds, the plaintiff may, on the new trial, introduce other evidence to take the case out of the statute. Dows v. Swett, 127 364. 342. And the plaintiff, upon the new trial, may rely upon, and support, by proof, a count which he had waived on the former trial. * Dows v. Swett, 127 364. 343. The supreme judicial court cannot order a nonsuit, upon setting aside a verdict for the plaintiff, on the defendant's bill of exceptions. Griffin v. Rising. (2 C.) 56 75. 344. Where exceptions to the ruling of a judge upon a trial, without a jury, are sus- tained, his findings of fact fall. Robinson v. Trofitter, 106 51. 345. If the court is equally divided upon an exception, it is overruled. Shannon v. Shannon, (10 A.) 92 249. 532 EXCHANGE— EXECUTION, I, (1). Exchange. [See Bill op Exchange, etc., V, (6); Damages, arte. 110, 111; Money.] Excise. [See Constitutional Law, arts. 193, 194; Intoxi- cating Liquors; Taxation, IX, (1).] Excusable homicide. [See Homicide, I.] Execution. I. General Kules. (1.) Eequisites; issuing; effect. (2.) Discharge. II. Lett on personal Property. (1.) "What may be taken; statutory exemp- tions. (2.) Seizure and sale. III. Levy on real Property by Set Off. (1.) Real property subject to levy (2.) Mode; sufficiency; effect. (3.) Appraisement; seisin. (4.) The officer's return. (5.) Recording the execution and return. IV. Levy on real Property by Sale. (1.) In what cases; effect. (2.) Kotice of sale; sale; proceeds; officer's deed. (3.) The officer's return. V. Redemption after Set Off or Sale. VI. Service by Arrest. VII. Writ of Possession. [As to an execution upon an executor's bond, see Executor, etc. II, (4) ; for costs de bonis propriis against an executor or administrator, on a judgment in an action for a decedent's debt, see Costs, I, (4). As to an execution for alimony, see, also, Divorce, IV. As to the officer's protection, see Office and Officer, II, (1). Generally, see, also. Arrest; Attachment ; Escape ; Office and Officer ; Poor Debtor.] I. General Rules. (1.) Requisites; issuing; effect. 1. An execution may be issued upon a judg- ment, although an action upon it is pending. Cushing v. Arnold, (9 Met.) 50 23. 2. Taking out an execution, is not a waiver of the right to sue to bring an action upon a bond, given upon suing out a writ of error. Many v. Sizer, (ti G.) 72 141. 3. But the plaintiff in a trustee process, who recovers judgment against the principal debtor, and appeals from a judgment discharging the trustee, waives his appeal, by taking out execu- tion against the principal. Jarvis v. Mitchell, 99 530. 4. An execution, issued while the judgment debtor is imprisoned under a prior execution or has been released, with the creditor's con- sent, is void; and a sale thereunder, although after the debtor's discharge, passes no title to a bona fide purchaser. King v. Goodwin, 16 63; Kennedy s Duncklee, (1 G.) 67 65. 5. A judgment creditor may take, under an execution, either the lands, the goods, or the person of the judgment debtor, atiis election Dooley v, cotton, (3 G.) 69 496! See, also, Lyman v. Lyman, 11 317; Clark v. Goodwin, 14 23V; Davis e, Richmond, 14 473; Woodward v. Hop- kins, (2 G.) 68 210. 6. The appointment of an appraiser, or the receipt of seisin of land levied upon, is suffi- cient evidence of election to extend the execu- tion upon lands. Herring v. Polley, 8 113. 7. An execution cannot be issued against the bodies of the members of a corporation aggre- gate. Nichols v. Thomas, 4 232; Tippets v. Walker, 4 595. 8. An irregular execution does not affect a. regular judgment and award of execution; the remedy is by audita, querela, or motion. Johnson v. Harvey, 4 483; Dingman v. Myers, (13 G.) 79 1. 9. But an execution is void which is issued upon a void judgment, Albee v. Ward, 8 79. 10. A magistrate or a party, who issues an execution within twenty four hours, excluding the Lord's day, after judgment, is liable to the party injured, and a levy under such an execu- tion is void. Briggs v. Ward well, 10 356; Penni- man ». Cole, (8 Met.) 49 496. 11. An execution may bear teste, and be re- turnable out of term; and an alias or pluriet may issue, bearing teste within a year after the return day of the next preceding execution. Johnson ». Harvey, 4 483. 12. An execution may Jbe served at any hour of the last day, of the time in which it is return- able. Prescott v. Wright, 6 20. 13. If returnable to a court holden on a cer- tain day, it may be executed on that day, while the court is sitting, but not after its adjourn- ment. Prescott v. Wright, 6 20; Blanqhard v. Brooks, (12 P.) 29 47. 14. If returnable to the clerk's office, it is re- turnable at any time before the expiration of the usual time of keeping the office open. Bulls. Clarke, (2 Met.) 43 587. 15. If an officer has commenced the service of an execution before it is returnable, he may complete the service afterwards, and retain the execution for that purpose. Prescott «. Wright, 6 20. EXECUTION, I, (1), (2). 533 16. And in that case all his subsequent pro- ceedings, in completion of the service, relate back to when the service was commenced. Prescott v. Wright, 6 20; Heywood t! Hildreth, 9 393; Waterhouse 1>. Waite, 11 207. 17. So a constable may complete, after the expiration of his term of office, the service of an execution commenced previously; and a de- mand and search for goods is such a commence- ment, as will authorize completion by an arrest. ' O'Brien v. Annis, 120 143. 18. An execution may be issued against a husband under St. 1874, Ch. 205, P. S., Ch. 147, § 33, etc., without notice, in the discretion of the court. Bell v, "Walsh, 130 163. 19. Where judgment on a probate bond is rendered for the use of several, if the damages are distinct, a separate execution issues for the use of each, but only one execution issues for the costs. Paine v. Mclntier, 1 69; Dawes «. Bell, 4 106. 20. And where in trespass guare clausum, against two defendants, the jury assessed several damages, the court directed separate executions for the damages, and one for the ' Kempton v. Cook, (4 P.) 21 305. 21. Execution against one under guardian- ship issues as in other cases, and his property may he taken in his guardian's hands. Thacher®. Dinsmore, 5 299; Ex parte Leighton, 14 207. 22. But a spendthrift under guardianship cannot be arrested. Conant v. Kendall, (21 P.) 38 36; In re Blake, 106 501. Exparte Leigh- ton, 14 207, overruled. 23. An execution which misrecites the date and amount of a recognizance, upon which it is issued, is void. Albee v. Ward, 8 79. 24. So is an execution, issued by a justice of the peace, which recites that the judgment was recovered before him as " trial jnstice," there being then no such office, and omits the initial of the debtor's middle name Palmer v. Crosby, (11 G.) 77 46. 25. But a clerical error in the date of the execution, or an error in a figure in the date of the udgment, which is manifestly clerical, and may be corrected from the execution itself, does not vitiate. Stevens v. Roberts, 121 555; Currier v. Bartlett, 122 133. 26. A scire facias is necessary only where an execution is to be issued against one not a party to tne record, as an executor or administrator, or where the absolute right has been lost by lapse of time. Hamilton v. Lyman, 9 14. 27. Where bail have surrendered their princi- pal on scm facias, the plaintiff is entitled to an ahas execution although more than a year has elapsed since the last execution was returned. Bartlet v. Falley, 5 373. 28. An execution, regularly issued during the judgment debtor's life, may be levied after Ms death, and within 30 days after the judgment, upon goods attached under the original process, except where his estate is represented insolvent, etc. Grosvenor v. Gold, 9 209. 29. If one of two or more plaintiffs dies after judgment, an execution may be issued in the name of all, or the death may be suggested on the docket, and the execution issued in the name of the survivor. Hamilton «. Lyman, 9 14; Bowdoin ». Jordan, 9 160; Cushman «. Carpen- ter, (8 C.) 62 388. 30. But an execution issued against a sole defendant, who is dead, is void. Hildreth v. Thompson, 16 191. 31. A justice's execution, made returnable "within 60 days," is returnable at the end of sixty days. Adams v. Cummiskey, (4 C.) 58 420. 32. Under P. S., Ch. 164, § 8; Ch. 171, §16,' a plaintiff, who has obtained judgment against an absent defendant on a default, and who has rot given the bord specified in P. S., Ch. 164, § 8, is not entitled to an execution after a year from the rendering of the judgment. Pease v. Morris, 138 72. 33. As to the sufficiency of the recital in an execution of the time of rendering a judgment, where a clerical error has been amended, see Nims e. Spurr, 138 209. (2.) Discbarge. 34. An indorsement on an execution, by the attorney, of the receipt of certain notes, to be in full satisfaction when paid, is not a dis- charge of the execution, unless the notes are paid. Hart v. Waterhouse, 1 433. 35. So of the receipt of notes for collection, although the money was lost by the attorney's negligence. Langdon v. Potter, 13 319. 36. So where notes are given to be in com- promise of the judgment, when paid, but the execution is to stand as security. Richardson «. Boston Chemical Labora- - tory, (9 Met.) 50 . 42. 37. Where an execution, originally directed to the sheriff, is fraudulently altered by the person receiving it, who is a constable, so as to make it run to him, payment to him does not discharge the debt. Brier v. Woodbury, (1 P.) 18 362. 38. But if the plaintiff's attorney, without fraud, adds to an execution, as issued by the clerk, to the sheriff, a direction also to the con- stables of the town, that does not vitiate, and a constable may execute it. Blanchard v. Waters, (10 Met.) 51 185. 39. Where one, without authority, receives the money collectible on an execution, and offers it to the creditor, who refuses to accept 534 EXECUTION, I, (2); II, (1). it, this does not discharge the execution, or bar an action against others liable for the debt. Porter «. Ingraham, 10 88. 40. A levy upon goods sufficient to pay the judgment discharges the debtor, although the sheriff wastes them, or misapplies the proceeds, or fails to return the exeoution. Ladd v. Blunt, 4 402. 41. Aliter, if the levy is on land, which re- mains the debtor's property, until the creditor acquires title of record. Ladd «. Blunt, 4 402. 42. If either one of two or more joint debtors pays the amount due upon the execution, it is ipso facto discharged; and he cannot have it levied on the others for his benefit, although there is no entry of satisfaction. Hammatt v. Wyman, 9 138; Braekett ■». Winslow, 17 153; Adams v. Drake, (11C.) 65 504. II. Levy on personal Pbopkrty. (1.) What may be taken; statutory ex- emptions. 43. At common law, mortgaged personal property could not be taken under an execu- tion against the mortgagor; but by statute it may be taken upon execution, provided it has first been attached; but not otherwise. Sherman v. Davis, 137 132. See, also, Badlam v. Tucker, (1 P.) 18 389; Braekett v. Bullard, (12 Met.) 53 308; Lyon v. Coburn, (1 C.) 55 278; Lamb v. Johnson, (10 C.) 64 126; Prout *. Root, 116 410; Porter «. "Warren, 119 535. 44. But if the mortgage is fraudulent and void as to creditors, a creditor, by judgment and execution, may levy upon the property, as if the mortgage had no existence. Sherman s, Davis, 137 132. [For proceedings upon a levy on mortgaged per- sonal property, see Chattel Mortgage, ill, (2).] 45. The effect of the statutes, prohibiting the sale of intoxicating liquors, except as thereby regulated, is to prevent a levy upon such liquors, under either an execution or attach- ment. Ingalls v. Baker, (13 A.) 95 419. 46. And this rule holds under the existing statutes. Kiff v. Old Colony, etc., Railway, 117 591. 47. The share of a tenant in common may be taken and sold. Hayden v. Binney, (7 G.) 73 416. 48. Corn, or any other product of the soil, raised annually, and by labor and cultivation, and standing ripe and ready to be gathered, may be taken. Penhallow «. Dwight, 7 34. 49. An execution, issued in the lifetime of the debtor, can be levied, after his 'death, on goods which were attached, but no others; and not on such goods, if a commission of insolvency ias been issued. Grosvenor v. Gold, 9 209; Jewett v Smith, 12 309. ' 50. And one who has obtained judgment and execution against the goods of a decedent, may levy upon them, although the estate is insol- vent in fact, unless the value has been expended in administration. Weeks v. Gibbs, 9 74; Clark v. Mav 11 233. 51. Wearing apparel, exempt by statute, in- cludes cloth and trimmings in a tailor's hands to be made up. Richardson v. Buswell, (10 Met.) 51 506. 52. The exemption of one bed, etc., for every two persons of the family, includes only two beds for the debtor, his wife, and three young children. Glidden «. Smith, 15 170. 53. Where a householder has neither wife or child, one bed only is exempt, although he has boarders and a housekeeper. Brown «. Wait, (19 P.) 36 470. 54. Bemble, that now a cooking stove is ex- empt, although not used exclusively for warm- ing; but it was not exempt under the statute of 1817. Brown v. Wait, (19 P.) 36 470. 55. The clause exempting "other household furniture necessary," etc., includes, under all circumstances, furniture of the class considered necessaiy for the debtor and his family, not exceeding in value the sum specified; and aa officer or creditor cannot inquire whether, in a particular case, that amount of furniture is necessary. Mannan v. Merritt, (11 A.) 93 582 56. Those articles are not merely things so indispensable, that the debtor cannot live with- out them, but things so essential as to be re- garded rather as the necessaries than the luxur- ies of life; in the particular case, a plain, cheap sofa and two cheap carpets. Davlin i>. Stone, (4 C.) 58 359. 57. A swine killed, but not cut up, is ex- empted under the clause including ' ' one swine." Gibson «. Jenney, 15 205. - 58. Where a debtor has two cows, one of which is mortgaged, the other is the "one cow " exempt. Tryon v. Mansir, (2 A.) 84 219. 59. A debtor having two animals, one of which is exempt, may elect which one he will hold, if he does so within a reasonable time; if he fails so to do, the officer may elect for him, and he is bound thereby. Savage v. Davis, 134 401. 60. If one of two cows is seized under an execution, and not removed until the evening of the next day, a jury is warranted in finding that he had waived his right to elect, by not electing until six days after the removal. Savage v. Davis, 134 401. 61. A heifer is a cow within the statute, if the debtor has no other animal of the kind. Carruth v. Grassie, (11 G.) 77 211; Johnson v, Babcock, (8 A.) 90 583. 62. If attached articles properly come within the word "tools," it is for the jury to say EXECUTION, II, (1), (2). 535 whether they are necessary for the debtor's trade or occupation. Howard v. Williams, (2 P.) 19 80; Davlin t>. Stone, (4 C.) 58 359; qualify- ing Buckingham 0. Billings, 13 82. 63. If they are such, it makes no difference that they are principally used by an apprentice or iourneyman. Howard e. "Williams, (2 P.) 19 80. 64. For other rulings as to the effect of the words "tools of trade," which are presumed to be rendered obsolete by the existing statute, see Daily 0. May, 5 313; Buckingham «. Billings, 13 82; Danforth 0. Wood- ward, (10 P.) 27 423. 65. A shovel, pickaxe, and dung fork are exempt, although tilling land is not the debtor's chief business. Pierce v. Gray, (7 G.) 73 67 66. The clause exempting "tools, imple- ments and fixtures, necessary for carrying on his trade or business," was intended for the protection of mechanics, artisans, and handi- craftsmen, and others who earn their livelihood by manual labor and skill. Wallace v. Bartlett, 108 52. 67. It accordingly applies to tailors, shoe- makers, milliners, musicians, and carriage- makers, and includes a sewing machine, or other article, although the owner does not him- self know how to use it, if used in his business by his employees. Dowling 0. Clark, (1 A.) 83 283 Goddard 0. Chaffee, (2 A.) 84 395 Dowling «. Clark, (3 A.) 85 570 Daniels 0. Hayward, (5 A.) 87 43 Rayner v. Whicher. (6 A.) 88 292 Woods 0. Keyes, (14 A.) 96 236. 68. So if a musician is also a tinner, his musical instrument is exempt, if that and his tinner's tools together are not worth more than $100. Baker 0. Willis, 123 194. 69. And a temporary suspension of his busi- ■ ness by a mechanic does not expose his tools, etc., to be taken. Caswell 0. Keith, (12 G.) 78 351. ?0. And a sewing machine is exempt under thB clause, although the debtor owns another S"S, mac Une, which is exempt under St. I860, Ch. 65; P. S., Oh. 171, § 34, cl. 12. Rayner 0. Whicher, (6 A.) 88 292. 71. This clause does not include persons engaged m buying and selling merchandise, such as a grocer, a marketman, a paper manu- lacturer, a shopkeeper, or a vender of patent couplings, so as to protect their stock, or the nxtures horses, wagons, scales, etc., used in the business. Smith0.Gibbs,(6G.) 72 298; Wilson 0. Elhot (7 G.) 73 69; Gibson 0. w^Vii 1 ) 75 63 : Wallace 0. Bart- lett, 108 52. Jh But °, cc asionaUy selling some of the articles used or wrought in the debtor's busi- SifS e3 - no1; . de P rive Mm of an exemption, to Wuch he is otherwise entitled Eager 0. Taylor, (9 A.) 91 156. 73. A farmer's whip is not exempt, in the absence of proof of special circumstances. Savage 0. Davis, 134 401. 74. The clause in question does not apply to partnership property. Pond 0. Kimball, 101 105. 75. The exemption of "provisions" extends to corn, potatoes, cabbages, etc., planted and raised by the debtor, ripe for harvest, but not yet gathered. Mulligan 0. Newton, (16 G.) 82 211. 76. Where the debtor has provisions for his family use, and also for sale, he must set apart or claim those intended for the former purpose; otherwise none are exempt. Nash 0. Farrington, (4 A.) 86 157; Clapp 0. Thomas, (5 A.) 87 158. 77. A leasehold interest may be attached like other chattels, and must be in like manner levied upon and sold. Chapman 0. Gray, 15 439; Montague e. Gay, 17 439; Shelton 0. Codman, (3 C.) 57 318. See, also, Broad 0. Chick- ering, Metcalf's Digest, 146; and G. S., Ch. 133, § 49; P. S., Ch. 171, § 51. C'i.) Seizure and sale. 78. A seizure of goods, without removing them, leaves the general property in the debtor until the sale. Rice 0. Tower, (1 G.) 67 426. See, also, Blake 0. Shaw, 7 505; Ludden 0. Leavitt, 9 104. 79. Unless the goods are sold within the time after the seizure specified in the statute, and by posting notices as required by the statute, the officer loses the special property which he acquired by the seizure, and must seize anew. Caldwell 0. Eaton, 5 399; Titcomb 0. Union Ins. Co., 8 326; Warren 0. Le- land, 9 265; Howe 0. Starkweather, 17 240. 80. So if a sale advertised was not held, on account of the weather, and was not adjourned. Warren 0. Leland, 9 265. 81. And the officer is responsible to the debtor, for any damage he may have sustained, by a delay to sell as required by the statute; but the satisfaction of the execution will mitigate dam- ages. Caldwell 0. Eaton, 5 399. 82. And if the debtor retakes the goods, the officer may seize them anew and sell under the second seizure, being responsible only for damages by the first seizure. Caldwell 0. Eaton, 5 399. 83. An officer who, after selling sufficient property to satisfy the execution, proceeds to sell other property, does not become thereby a trespasser ah initio. Wolcott 0. Root, (2 A.) 84 194. 84. Where a chattel is owned in common, the officer can rightfully levy upon and sell only the debtor's share. Melville 0. Brown, 15 82. 85. If the proceeds of attached property, sold by consent, bifore judgment, are in the '536 EXECUTION, II, (2); III, (1). officer's hands when he receives the execution, with directions to satisfy it therefrom, this is tantamount to a levy; and it would hold as against a s ubsequent publication of a messenger, under the insolvent act of 1838. Eastman i>. Eveleth, (4 Met.) 45 137. 86. Shares of stock of an incorporated com- pany are liable to be taken under different exe- cutions, by different officers; and if the proceeds of a sale will more than satisfy the executions, held by the officer selling them, he is bound to pay the surplus to the other officer. Denny v. Hamilton, 16 402. 87. For rulings, now obsolete, as to the con- struction of St. 1804, Ch. 83, relating to selling such shares, see Titcomb v. Union Ins. Co., 8 326; Howe v Starkweather, 17 240; Hussey v Manuf., etc., Bk., (10 P.) 27 415; Chase v. Merrimack Bk , (19 P.) 36 564. 88. A creditor, who has attached different parcels of goods, belonging separately to differ- ent defendants, may levy his execution on either, without reference to the claims of a creditor of one defendant, subsequently attaching the parcel belonging to the latter. Rogers v. Sumner, (16 P.) 33 387. See, also, Parker ■». Dennie, (6 P.) 23 227. 89. Where an officer, having successively attached goods under different writs, sold under the first attaching creditor's execution, and by his direction, gave credit, holding the goods as security, and the purchaser failed; and after- wards the officer sold for cash under the second attaching creditor's execution, it was held, that the first sale was invalil, and the second attach- ing c editor was entitled to the proceeds of the second sale. Bayley ». French, (2 P.) 19 586. 90. The necessary and lawful expenses of seizing and selling the property are a charge upon it, but the officer can charge nothing for his trouble, beyond the sum provided in the fee bill. Shattuck v. Woods, (1 P.) 18 171. 91. The sale at one time, on several execu- tions, of a large variety of goods in one lot, is not necessarily illegal or improper. ' Bergin v. Hay ward, 102 414. 92. The sale, after notice, of a, chattel, ex- empt from levy, passes no title to a purchaser. Johnson v. Babcock, (8 A.) 90 583. 93. So where a chattel is sold which did not belong to the judgment debtor. Buflum v. Deane, (8 C.) 62 35; Champney «. Smith, (15 G.) 81 512. 94. If it appears, by the return, that the sale was conducted according to law, the purchaser of a chattel belonging to the judgment debtor takes a good title, although the judgment and previous proceedings were irregular. Park v. Darling, (4 C.) 58 197. 95. So where the attachment was invalid. Packard v. Wood, (4 G.) 70 307. 96. If the purchaser refuses to take the goods, the officer may put them up and sell them again. Wilson v. Loring, 7 392. 97. Where a shop on another's land is taken and sold as personal property, the purchaser may enter and remove it. Doty v. Gorham, (5 P.) 22 487. 98. The title does not vest in the purchaser, unless the officer returns the execution, specific- ally setting forth his doings, and showing that the proceedings were legal and regular. A general return, that he has advertised and sold according to law, will not suffice. Hammatt «. Wyman, 9 138; Davis t> Maynard, 9 242; Wellington v. Gale, 13 483. See, however, Sanford v. Dur- fee, (19 P.) 36 485. III. Levy on Real Property by Set Off (1.) Real property subject to levy. [See, also. Attachment, I, (2). Aa to homestead exemption, see Homestead. 1 99. A building, erected unon piles, driven into the bed of a navigable river, below low water mark, is personal property, and cannot be taken as real property. Marcey v. Darling, (8 P.)' 25 283. 100. Land, of which the debtor was only in- stantaneously seized, is not subject to levy. Chickering®. Lovejoy, 13 51; Haynes e. Jones, (5 Met.) 46 292; Hazleton v. Lesure, (9 A.) 91 24; Woodward v. Sartwell, 129 210. [For the rules relating to instantaneous seisin, see Seisin.] 101. In general, no estate or interest in land can be transferred by the levy of an execution, except such as the debtor might have conveyed by deed. Bartlet v. Harlow, 12 348. 102. An inchoate right of dower cannot be taken in execution. Gooch v. Atkins, 14 378. 103. A judgment creditor may extend his execution upon real property, although there is sufficient personal property, and nothwithstand- ing he may have attached such personal prop- erty in the aame suit. Herring v. Polley, 8 113. See, also, Boylston v. Carver, 11 515. 104. An estate in remainder or reversion may be taken for the debt of the remainderman or reversioner, and the officer may_ enter to give seisin to the creditor, without being a trespasser as to the tenant of the particular estate. Pennimans. Hollis, 13 429; Williams v. Amory, 14 20, Atkins v. Bean, 14 404. 105. But an estate tail in remainder cannot be taken in execution against the remainder- man, dying before the life tenant. Holland v. Cruft, (3 G.) 69 162. 106. A defeasible estate may be taken and held until the happening of the condition. Phillips v. Rogers, (13 Met.) 53 405. EXECUTION, III, (1), (2). 537 107 A trust estate cannot be extended upon ■hv a creditor of the cestui que trust. y Russell v. Lewis, (2 P.) 19 508. 108. As to an estate by the curtesy initiate, m Mechs. Bk. v. Williams, (17 P.) 34 438; Staples v. Brown, (13 A.) 95 64. 109. Beal property, conveyed to A for the use of B may be taken by B's creditor. Prescott v. Tarbell, 1 204. 110. A corporation, whose agent has attached a debtor's land, in an action brought in his own name, has no such interest in the land that its creditor can levy upon it. Northampton Bk. ». Whiting, 12 104. 111. An execution against the property of one deceased, may be extended upon any lands of which the deceased died seized, to whomso- ever they may have passed by descent or devise, unless they have sold by the executor or administrator pursuant to a license. And this, although the executor has given bond for the debts, as residuary devisee. Gore ». Brazier, 3 523; Wyman v. Brigden, 4 150; Drinkwater v. Brink- water, 4 354; Bigelow v. Jones, 4 512; Procter v. Newhall, 17 81. 112. But not where the judgment was re- covered against an executor de son tort. Mitchel v. Lunt, 4 654. 113. Where a testator bequeathed an annuity to A, and made B and C his executors and residuary devisees, who gave bond for the debts and legacies, divided the real property between them, and discharged a mortgage given by the testator, by each giving a mortgage for one half the debt on his portion; and A obtained a decree, directing an execution against any prop- erty not appropriated to pay debts, it was held, that the land mortgaged could not be extended upon. Clarke v. Tufts, (5 P.) 22 337. 114. The franchise of a turnpike or other corporation may now be taken under execution; aliter, under the former statute. Tippets B.Walker, 4 595; East Boston, etc., Railroad «. Hubbard, (10 A.) 92 459, note. 115. As to lands mortgaged, under the former statute, see Blanchard a. Colburn, 16 345. 116. As to lands descended or devised, before the statute. Procter v. Newhall, 17 81. 117. As to a resulting trust before the statute. Kempton v. Cook, (4 P.) 21 305. . 1 J 8 - A grantor, entitled to enter for condition Droten, but who has never parted with posses- sion, nor given notice that he holds for condi- tion broken, has not an estate upon which an execution may be extended. Gunn v. Butler, (18 P.) 35 248. ao t 119 i Moi 1faged land maybe levied upon and ™X M .,? rt was not incumbered, if the "*' ■*?" take it subject to the incumbrance, to detraction being made on account thereof; «T« 1 , I ! I s . uch a case > the creditor may contest tne validity of the mortgage. Cowles D.Dickinson, 140 373. See, Vol. 1—68 also, White v. Bond, Peppard, 125 66. 16 400; Pettee v. 120. By selling the equity of redemption, the validity of the mortgage is conceded. Cowles v. Dickinson, 140 373. See, also, Russell v. Dudley, (3 Met.) 44 147. 121. And so where A conveys in fraud of creditors to B, and B mortgages the land to C,' without notice of the fraud, a levy upon the interest of A, and a sale thereunder, are valid. Cowles v. Dickinson, 140 373. See, also, Woodward «. Sartwell, 129 210; Bell v. Walsh, 130 163. (2.) Mode; sufficiency; effect. 122. An execution cannot be levied upon a particular portion of land held in joint tenancy, or in common, but it must be levied upon the debtor's undivided interest or shai-e. Bartlet v. Harlow, 12 348; Baldwin v. Whiting, 13 57; Atkins i>. Bean, 14 404; Blossom ». Brightman, (21 P.) 38 283; Peabody v. Minot, (24 P.) 41 329. j.23. But if it is levied upon the debtor's share of a specific portion of the land, it is good as to the debtor, and those claiming under him, and can be avoided only by the co-tenant or his as- signee. Varnum v. Abbot, 12 474; Baldwin ■o. Whiting, 13 57. 124. And a subsequent assignment in parti- tion, to the debtor, of the parcel specifically levied upon, renders the levy valid as to subse- quent conveyances and attachments. Brown o. Bailey, (1 Met.) 42 254. 125. Where dower is set off, the heirs hold by two tenancies in common, and the undivided estate may be levied upon separately. Peabody v. Minot, (24 P.) 41 329. 126. As to levy upon an undivided part of a mill privilege, or other real property, which is more than sufficient to satisfy the execution, see G. S., Ch. 103, § 10; P. S., Ch. 172, § 15. It is only in such a case that a levy can be made upon an undivided portion of the whole. Pickering ■». Reynolds, 111 83. 127. Where an officer and appraisers, charged with levying on a small parcel of land, with a dwelling house thereon, recited in their return and certificate that the debtor claimed an estate of homestead therein, and so set off a portion to him therefor, and a portion to the creditor, and the debtor had no such homestead estate; it was held that the levy on the portion set off to the creditor was valid. Bemis v. Driscoll, 101 418. 128. Where land was simultaneously attached by two creditors, if , one, o.i recovering judg- ment, levies on the whole by metes and bonds, the other may levy on an undivided moiety. Durant v. Johnson, (19 P.) 36 544. 129. Where two judgment creditors simulta- neously levy their executions, one on the whole land by metes and bounds, the other upon 14-15ths of an undivided half, the latter holds 538 EXECUTION, III, (2). as tenant in common with the former, the whole 14-15ths of an undivided half. Perry ». Adams, (3 Met.) 44 51. 130. Semble, that where two judgment cred- itors simultaneously levy executions upon the land of a manufacturing corporation, one as the land of the corporation, and also as the estate of a stockholder, under St. 1808, Ch. 65, the other as the stockholder's only, the former will hold the land against the latter. Perry ». Adams, (3 Met.) 44 51. 131. A levy upon more land than the debtor owns, or more than his share, is good for as much as he owns, or to the extent of his share. Atkins ». Bean, 14 404; Baker v. Baker, 125 7. 132. Where the quantity stated in the returns to have been set off to different creditors, exceeds the quantity contained in the whole tract, the levy is not void, but the last creditor takes whatever remains after the previous Cutting v. Rockwood, (2 P.) 19 443. 133. A levy is invalid, if more land is seized and set off than is sufficient to satisfy the execu- tion, with fees, although the excess is inconsid- erable. Pickett i>. Breckenridge, (22 P.) 39 297; Chenery v. Stevens, 97 77. 134. But including illegal fees does not vitiate the levy. Holmes v. Hall, (4 Met.) 45 419; Stevens v. Boberts, 121 555. 135. And interest on the judgment to the completion of the levy may be computed; and if the levy is not excessive in fact, the return need not state the sum added for interest. Taylor v. Robinson, (2 A.) 84 562; Parker ». Osgood, (3 A.) 85 487. 136. The appraisers' oath and certificate, an- nexed to the return, may be taken as evidence as to when the levy was completed, for the purpose of computing interest. Bucknam v. Lothrop, (9 A.) 91 147. 137. Semble, that if land attached is con- veyed by the debtor before judgment, a levy under an execution for more than the attach- ment, is void against the grantee. Chickering *. Lovejoy, 13 51 138. A levy upon real property of a de- cedent, under an execution upon a judgment against a foreign administrator, is void. Borden i>. Borden, 5 67. 139. A levy upon the land of a decedent is not avoided by a subsequent representation that the estate is insolvent, although the credi- tor files his claim and receives a dividend. Ramsdell v. Creasey, 10 170. 140. A levy cannot be lawfully made against heirs, devisees, or purchasers, where the judg- ment was obtained by the negligent omission of the executor to plead the statute of limitations, in a suit commenced against him more than four years after he accepted the trust. Ex parte Allen, 15 58; Thayer v. Hollis, (3 Met.) 44 369. 141. A levy in an action against an adminis- trator, where he was the real plaintiff, and acted as defendant and as agent for the nominal plaintiff, is void against another creditor mat ing a regular levy. Goddard v. Divoll, (1 Met.) 42 413. 142. As to the levy of an execution against a tenant for life, before 6. S., Ch. 103, 86 11 19. P. S., Ch. 172, §8 16, 17, see ' ' Barber v. Root, 10 260; Chapman v. Gray, 15 439; Roberts v. Whitine 16 186. 8 ' 143. It is no objection to the levy of an execu- tion against a principal and two sureties, upon the land of one of the sureties, that it was made at the request of the principal and of the other surety, and of an assignee who purchased the judgment, with money furnished by them. Taylor i>. Van Deusen, (3 G.) 69 498. 144. A levy upon two tracts appraised sepa- rately is good as to one, although void as to the other. Barnard ». Fisher, 7 71. 145. Where a corporation built a meeting house and sold the pews, an execution cannot be extended on the pulpit. Revere «. Gannett, (1 P.) 18 169. 146. Where a judgment and execution in favor of A is assigned to B, and the execution is afterwards levied on real property, a release by A to B, of all his right in the property vests title in B, as against a creditor of A, who attaches before the release. Brown* Maine Bank, 11 153. 147. The officer's omission to proceed to the completion of the levy for more than 30 days after its commencement, avoids the levy, if unexplained. Haskell v. Varina, 111 84. 148. What is the reasonable diligence requir- ed by the statute, is, where the facts are undis- puted, a question of law. Haskell v. Varina, 111 84. See, also, Waterhouse v. Waite, 11 207; Inman «. Mead, 97 310. 149. Upon a levy, the title of the creditor takes effect for some purposes by relation, from the time when it is commenced, if it is regularly continued, and the extent registered within the statutory time. Heywood v. Hildreth, 9 393; Brown v. Maine Bk., 11 153; Shove v. Dow, 13 529; Hall v. Crocker, (3 Met.) 44 245; Hall t>. Hoxie, (3 Met.) 44 251. 150. A levy of an execution against A, upon land, whereof the title of record is in B, may be rightfully suspended by reason of a prior attachment in an action against A and B jointly, although it is not a special attachment under G. S., Ch. 123, § 55; P. S., Ch. 161, § 66. Wadsworth v. Williams, 97 339. 151. So where the levy wus suspended until the land was levied upon, pursuant to a prior attachment. Brinley «. Mann, (2 C.) 56 337. 152. After levy upon an equity of redemp- tion by sale, in a manner not authorized by law, the creditor may obtain a new execution by scire facias. Dewing v. Durant, (10 G.) 76 29. 153. The remedy by scire facias to obtain a new execution, is the only one open to ths EXECUTION, III, (2), (3). 539 creditor, where, after the execution has 'been returned and recorded, it appears that the land seized was not the debtor's property, or not liable to be seized. Dennis v. Arnold, (12 Met.) 53 449; Perry t>. Perry, (2 G.) 68 326; Dewing v. Durant, (10 G.) 76 29. 154. Land bought and paid for by a debtor, and conveyed to bis wife, with intent to defraud his creditors, may, under the G. S., be taken under execution; and a levy entitles the creditor to maintain a writ of entry therefor, against the husband and wife, within one year after the return of the execution. Clark s. Chamberlain, (13 A.) 95 257. 155. To recover, under the G. S., real prop erty levied on as having been conveyed to de- fraud creditors, it must be proved, either that there was no consideration, or that the grantee participated in the fraud. Snow v. Paine, 114 520. 156. If a mortgagor makes a second mort- gage, which is fraudulent as to creditors, the interest in the second mortgage may be seized, although he has conveyed the right to redeem both mortgages; and the creditor takes title, although the execution is for less than the value of such interest. Verry «. Eichardson, (5 A.) 87 107. 157. Where, in such a writ of entry, it ap- pears that the conveyance was fraudulent, the question whether the demandant is a creditor, is open to the tenant, only as far as it would be open to the debtor. Peterson «. Farnum, 121 476. 158. Hay cut upon land thus fraudulently conveyed, maybe taken on execution for a debt contracted before the conveyance. Dodd s.Adams, 125 398. 159. As against a mere stranger, the levy will sustain an action for trespass, without proof that au action -to recover the land was com- menced within a year after the return of the execution. Wellington t>. Geary, (3 A.) 85 508. 160. The purchaser of an equity of redemp- tion, sold under an execution against the mort- gagor, is not debarred by the statute from dis- puting the title of one in possession, under a fraudulent sale, by virtue of a power in the mortgage, although he has not brought suit within the year. Hayward v. Cain, 110 273. [See, further, on this subject, Fraud, III.] 161. For the rule of law, before the enact- ment of the present statute, see Howe v. Bishop, (3 Met.) 44 26; Fos- ter t>. Durant, (2 G.) 68 538; Phelps v. Palmer, (6 A.) 88 401. Hamilton v. Cone, 99 478. 162 The regular levy of an execution vests an actual seisin in the creditor, and ousts the aentor, so that the former may enter and main- jam possession, or maintain against the latter tepass, or a real action. Langdon v. Potter, 3 215; Gore v. S Z1 3 3 52 3; Wyman v. Brigden, 4 150; Bigelow v. Jones, 4 512. 163. And the judgment debtor cannot make a valid conveyance of the land. Allen d. Taft, (6 G.) 72 552. 164. But where the land was not the debtor's, the levy does not prevent the true owner from maintaining trespass against the judgment creditor, without re-entry. Bott v. Burnell, 9 96; Blood ». Wood, (1 Met.) 42 528. 165. "When A assigned to C a judgment against B, and C caused execution to be levied on B's real property, B can hold the land against A's attaching creditor, and the levy of such creditor's execution does not invalidate; A's deed to C. Cushman v. Carpenter, (8 C.) 62 388. 166. A creditor of a mortgagor may enter and levy, and thus acquire a legal seisin of his equity of redemption; but this does not oust the mortgagee in possession. Shepard v. Pratt, (15 P.) 32 32. 167. A levy upon rents and profits for years is not an ouster of the owner of the freehold. Barber v. Root, 10 260. 168. Seisin under a levy against a judgment debtor in possession, but having only a rever- sion, is defeated by the entry of the tenant for life. Hurd v. Cushing, (7 P.) 24 169. 169. A levy upon an undivided interest in land, whereof the debtor was not actually seized, does not authorize the creditor to maintain par- tition, but only a writ of entry. Newton Bk. v. Hull, (10 A.) 92 144. 170. After levy, seisin and return, if the aebtor becomes insolvent, the creditor cannot tender to the assignee a deed of release, and thereupon be admitted as a creditor to the amount of his judgment, although the title to the land stood in a third person's name. Wareham S. Bk. v. Vaughan, 133 534. (3.) Appraisement; seisin. 171. The officer has no authority to appoint an appraiser for the creditor, and his doing so vitiates the levy, although the creditor accepts the seisin. Richardson «. Payne, 114 429. 172. If an execution against two is levied on lands of which one only is seized, his appoint- ment of an appraiser suffices; if both are seized, an appointment by either, the other not dissent- ing, suffices; if they do not agree, the officer appoints for them. Herring v. Polley, 8 113. 173. But if one only is seized and the other appoints, the appointment is good except as against the former. Herring v. Polley, 8 113. 174. Where an execution is levied on a spend- thrift's land, his guardian appoints the ap- praiser. Bond «. Bond, (2 P.) 19 382. 175. Where the officer appoints, because the debtor neglects so to do, and the levy is sus- 540 EXECUTION, HI, (3). pended by reason of a prior attachment, it is not necessary, when the attachment js dissolved, to notify the debtor anew, but the same ap- praisers may complete the appraisement. Wadsworth v. Williams, 100 126. 176. An officer's return that he appointed an appraiser for the debtor, he not being an in- habitant, etc., " of my precinct," fails to show, as the statute requires, that he was not a resi- dent of the state, etc., and vitiates the levy. Brooks ». Morris, 124 172. 177. But where the officer returns that the debtor was a nonresident of the state, etc., and had no agent, etc., it is not necessary to return that he neglected to appoint an appraiser, to validate the officer's appointment for him. Randall ». Wyman, (16 G.) 82 334. 176. Before St. 1852, Ch. 256, the officer could not appoint an appraiser for an absentee or nonresident. Leonard v. Bryant, (2 C.) 56 32; Shields v. Hastings, (10 C.) 64 247. 179. A selection of an appraiser for the debtor by the officer, renders the levy void, unless he returns that one of the reasons specified in the statute existed. Eddy v. Knap, 2 154; Whitman v. Tyler, 8 284. 180. Even if the debtor's property had been assigned under the insolvent law of 1838. Hall v. Hoxie, (3 Met.) 44 251. 181. But a return that the debtor neglected to appoint, implies that the officer notified him. Blanchard v. Brooks, (12 P.) 29 47. 182. Where, upon levy of an execution against two debtors, the return states that an appraiser was chosen by "the debtor within named," the levy is good, if it sufficiently ap- pears, from the whole return, that he was chosen by the debtor whose land was taken. Kellenberger ». Sturtevant, (11 C.) 65 160. [.See, further, as to the officer's return, post. III, 183. The reversioner may be an appraiser, where the execution is extended upon the estate for life. Chamberlain v. Doty, (18 P.) 35 495. 184. But the debtor's co-tenant in common cannot be. Cowdrey v. Sheldon, 122 267. 185. Where a town is a party, an inhabitant thereof cannot be an appraiser. Boston v. Tileston, 11 468. 186 The appointment by the officer of the son-in-law of the creditor, as an appraiser, viti- ates the levy. Wolcott v. Ely, (2 A.) 84 338. 187. But not his appointment of his own brother-in-law. Brown v. Washington, HO 529. 188. It is not a disqualification of an appraiser that he is the cousin of the plaintiff's mother Kinsman v. Warner, 113 347. 189. The appointment by the debtor, as an appraiser, of one who had subsequently attached the property, cannot be objected to by the debtor, or subsequently attaching creditors Cutting v. Rockwood, (2 P.) 19 '443 190. It suffices, if the appraisers view the land, without actually going upon it Bond ». Bond, (2 P.) 19 382; Ham- matt ». Bassett, (2 P.) 19 564. 191. If the appraisers are justices of the peace, they may administer the oath to each other; or if the judgment debtor is a magis- trate, he may administer the oath. Barnard 0. Fisher, 7 71. 192. An appraiser, being the true owner is not estopped from asserting his title. Hurd v. Cushing, (7 P.) 24 169. 193. As to appointing different appraisers for different parcels, and making different ap- praisements, or one for all, now provided for in the statute. Barnard v. Fisher, 7 71; Boylston v. Carver, 11 515; Bond v. Bond, (2 P) 19 382; Peabody v. Minot, (24 P.) 41 329. 194. If only two of the appraisers subscribe the appraisement, and no reason is given why the other did not subscribe, and it does not appear that he was present, the levy is void. Whitman «. Tyler, 8 284. 195. So if the return states that A, B, and C were the appraisers, and A, B, and D sign the appraisement, and the return is not amended. Nye i). Drake, (9 P.) 26 35. 196. As to dissent, etc., of one, now provided for in the statute. Barrett v. Porter, 14 143; Moffitt 0. Jaquins, (2 P.) 19 331. 197. The appraisers may give the creditor a way of necessity over other lands Of the debtor. Taylor v. Townsend, 8 411. 198. A deduction by the appraisers for the value of a dower interest, or other life estate, where no such incumbrance exists, vitiates the levy. Root v. Colton, (1 Met.) 42 345; Whittled ». Mallory, (4 C.) 58 138. 199. Deducting a prior attachment, as an in- cumbrance, also vitiates. Barnard ■». Fisher, 7 71. 200. But the value of the inchoate right of dower of the debtor's wife may be deducted.' Jenks v. Ward, (4 Met.) 45 404. 201. So where a condition is expressed in the deed to the debtor, that the grantee shall pay a mortgage, on the same and other lands of the grantor, the amount thereof may be deducted. Jenks v. Ward, (4 Met.) 45 404. 202. So the interest on the mortgage debt may be deducted, although part has been paid by a third person, but not at the debtor's request. Jenks v. Ward, (4 Met.) 45 404. 203. Where A mortgaged 50 acres to B, and then conveyed 10 acres thereof to C, and C conveyed them to D, but before the latter deed was recorded, E attached them as C's property, and afterwards levied thereupon and took an EXECUTION, III, (3), (4). 541 assignment of A's mortgage to B, and flw if ull amount of the mortgage was deducted from the estimated value of the 10 acres, it was held. that the levy was void, and that C and ,D might maintain a bill in equity against E to redeem the 50 acres. Brown s. Worcester Bk., (8 Met.) 49 47. 204. A mortgage, conditioned that the mort game' should support the mortgagor and his w3e, during their lives, is an incumbrance, the value of which may be deducted in the appraisal. Carpenter v. Sutton Par., (7 P.) 24 49. 205. A levy by extent on mortgaged land, if the appraisement is made without deduction for the incumbrance, vests a sufficient title in the creditor, as against the debtor, and those claiming under him. White D.Bond, 16 400. 206. And where the appraisers certify that they have appraised the land at a certain sum, it is presumed that no deduction was made for the mortgage. Mechanics' Bank v. Williams, (17 P.) 34 438. 207. An overestimate of the incumbrance avoids the levy. McGregor v. Williams, (10 C.) 64 526. 208. If some of the parcels of land levied upon are subject to a mortgage, and others are not, they may all be appraised together, and the amount of the mortgage deducted, if it is not greater than the value of the mortgaged parcels. Hannum«.Tourtellott,(10A.) 92 494. 209. Or both may be appraised together, and no deduction made on account of the mort- gage. Pettee v. Peppard, 125 66. 210. Where the mortgage includes other land, a proportionate part of the mortgage may be deducted. Wadsworth v. Williams, 97 339. 211. If the creditor neglects to receive seisin for a month after the appraisement, the delay is unreasonable, and the levy is avoided by a con- veyance after attachment, and before levy Waterhouse v. Waite, 1 1 207. 212. The attorney of record, or an attorney appointed by parol, may receive seisin for the creditor. Pratt s. Putnam, 13 361. 213. The return of the officer, that he has delivered seisin to the creditor's attorney or agent, naming him, is prima facie evidence of the latter's authority. Herring o. Polley, 8 113; Bottc. Bur- Mil, 9 96; Pratt®. Putnam, 13 361. J?} ^ n i the editor's claiming the land, by ™™ * e leTy ' is a ratification of the act of Ssin assumed t0 be Ws attorney to receive Herring v. Polley, 8 113. 215. So is the recording of the levy mtt «. Putnam, 13 361. (4.) The officer's return. [For analogous cases, see pott, TV, (3).] 216. The levy of an execution upon real property, if conducted according to law, operates as a kind of statute conveyance from the debtor to the creditor; but the title is not complete until the writ is returned and filed;, and the return must show that everything re- quired by the statute was done. Baker v. Baker, 125 7; Walsh v. Anderson, 135 65. See, also, Ladd v. Blunt, 4 402; Prescott v. Pettee, (3 P.) 20 331; Bates v. Willard, (10 Met). 51 62. 217. Thus the manner of choosing the ap- praisers, that they were disinterested, etc., and were sworn, must be specially returned, and the return must show that the statute has been, in all respects, strictly followed. Williams ». Amory, 14 20; Bradley v. Bassett, (2 C.) 56 417. See, also, Eddy v. Knap, 2 154; Whitman v. Tyler, 8 284; Allen v. Thayer, 17 299; Dewey v. Tobey, 126 93. [See ante. III, (3).] 218. But a clerical error may be amended; as, where the officer returns that he chose two of the appraisers, "A, the debtor, having neglected to choose one," where, in fact, B was- the debtor. Litchfield «. Cudworth, (15 P.) 32 23. [See, also, Amendment, II.] 219. And where the necessary averments are contained in the return substantially, although informally; or by necessary inference, although not expressly; the levy is not vitiated. Lobdell v. Sturtevant, (4 P.) 21 243;: Tyler «. Smith, (8 Met.) 49 599; Childs. «. Barrows, (9 Met.) 50 413; Cowls «_ Hastings, (9 Met.) 50 476; Chappell v. Hunt, (8 a.) 74 427; Dooley v. Wol- cott, (4 A.) 86 406; TJfford v. Dickin- son, (12 A.) 94 543. 220. If it appears from the return that the appraisers were duly sworn, that suffices, with- out setting forth the particulars. Barnard ». Fisher, 7 71; Williams «. Amory, 14 20; Leonard 1>. Bryant,. (2 0.) 56 32. 221. Aliter, before the B. S. Chamberlain '■». Doty, (18 P.) 35 495,-, Eellfenberger v. Sturtevant, (11 C.) 65 160. 222. Where an appraiser was affirmed, it is unnecessary to state that he had conscientious scruples against taking an oath. Hall v. Hoxie, (3 Met.) 44 251. 223. The return need not show that the ap- praisers resided within the county, or the Com- monwealth. Campbell «. Webster, (15 G.I 81 28. 224. The certificate of the appraisers, as to- their doings, annexed to the return, is a part, thereof, if it is made so by a reference in the- return; but not otherwise. Herring «. Polley, 8 113; Tate v. An- derson, 9 92; Shove v. Dow, 13 529.. 542 EXECUTION, m, (4), (5). 225. If there is a discrepancy between the return, and the appraisers' statement of their fees, the former governs. Bucknam v. Lothrop, (9 A.) 91 147. 226 The levy is not vitiated by the officer's failure to return why a delay of a month oc- curred, after the appraisers' appointment, be- fore they were sworn. Inman «. Mead, 97 310. 227. An obvious mistake in the date will not vitiate the return; and if two dates are incon- sistent with each other, one will be rejected. Shove v. Dow, 13 529. 228 Where the officer, without entering upon the land, made a memorandum, noting the day and hour, that he seized the land upon the exe- cution, and returned that he then seized the land, the levy took effect from the time of the memo- randum Hall v. Crocker, (3 Met.) 44 245. 229. Where the officer returns that he seized land on a certain day, but further service was suspended by reason of prior attachments, and the levy is afterwards completed, it takes effect from the day so returned. Hall v. Hoxie, (3 Met.) 44 251. 230. The return need not state the hour and minute of the seizure; the day suffices. Cowls v. Hastings, (9 Met.) 50 476. 231. The levy is void if the return fails to state, where an undivided part of land was set off, that it could not be divided without damage. Pickering i>. Reynolds, 111 83. 232. Where a levy is made on land, as fraud- ulently conveyed, the fraudulent grantee need not be named in the return, and it suffices to certify that seisin and possession was delivered, without saying that they were momentary. Clarke Chamberlain, (13 A.) 95 257. 233. Where land, fraudulently conveyed by the debtor, was conveyed at his request, by the fraudulent grantee, to B, a purchaser for value and in good faith; and before the latter con- conveyance was recorded, A made a general at- tachment of the debtor's real property, but the officer did not make the special return required by G. S., Ch. 123, § 55; P. S., Ch. 161, § 66; and the land was afterwards levied and set off to A, it was held, that A could not maintain a writ of entry against B. Morse v. Aldrich, 130 578. 234. The officer's return, that he has deliv- ered possession to the creditor, suffices, as equivalent to seisin. Boylston «. Carver, 1 1 515. 235. And an indorsement on the execution, by the creditor or his attorney, acknowledging the receipt of seisin, suffices, although the offi- cer does not return the fact. Atkins v. Bean, 14 404. 236. The return is conclusive evidence, as to all matters which are properly the subject thereof, so far as it affects the parties and priv- ies to the process returned. Baker v. Baker, 125 7. 237 As, for instance, the competency of the appraisers. Campbell v. Webster, (15 G.) 81 28; Baker v. Baker, 125 7. See, also Lawrence «. Pond, 17 433. 238. But if the parties in a subsequent suit agree upon facts, which show that the apprais- ers were not competent, the levy will be void Boston v. Tileston, 11 468; Wolcott D.Ely, (2 A.) 84 338. 239. The officer's return is not conclusive, as to the existence or amount of an incumbrance. Hannum v. Tourtellott, (10 A.) 92 494! 240. The description of the land contained in the return, is_ to be interpreted upon the same rules, and in the same manner, as in a deed; including courses, distances, boundaries, references to other deeds or documents, mis'- takes as to quantity, measurements, etc. ; and the return is sufficient in those respects, if a deed would be. Allen®. Taft,(6G) 72 552; Chappell v. Hunt, (8 G.) 74 427; Steel v. Steel, (4 A.) 86 417; Baker «. Baker, J 25 7. See, also, Herring ». Polley, 8 113; Tate v. Anderson, 9 92; Boylston v. Carver, 11 515; Atkins a. Bean, 14 404; Cutting «. Bockwood, (2 P.) 19 443; Hedge v. Drew, (12 P.) 29 141; Jenks t. Ward, (4 Met.) 45 404; Bates c. Willard, (10 Met.) 51 62. 241. But where the return upon a levy upon mortgaged land, was that the debtor's "right" in the premises was appraised, the levy was void, as it was doubtful whether the incum- brance was deducted. Litchfield v. Cudworth, (15 P.) 32 23. 242. Aliter, where the levy and appraisal were of the " estate." Mechanics' Bk. «. Williams, (17 P.) 34 (5.) Recording the execution and re- turn. 243. A failure to record the execution and return, within the time prescribed in the statute, does not absolutely avoid the levy; but it is still valid against the debtor, and those claiming under him. McLellan v. Whitney, 15 137. 244. Also, as against a subsequent attaching creditor or purchaser with notice, if the execu- tion and return are recorded before the second attachment or conveyance. McLellan «.Whitney, 15 137; Hough- ton v. Bartholomew, (10 Met.) 51 138; McGregor «. Brown, (5 P.) 22 170, overruled pro tanto. 245. But if a junior creditor obtains title by subsequent attachment and levy, and the senior creditor's execution and return are not seasona- bly recorded, the title of the latter under his levy is lost as against the former. McGregor t>. Brown, (5 P.) 22 170. 246. The foregoing cases were decided before G. S., Ch. 193, §§ 19, 20; P. S., Ch. 172, §§ 25, 26. For additional rulings under the former statute, now obsolete, see Waterhouse t>. Waite, 11 207; Mc- EXECUTION, III, (5); IV, (1). 543 Gregor «. Brown, (5 P.) 22 170; Blanch- ed 1 Brooks, (12 P.) 29 47; DeWitt % Harvey, (4 G.) 70 486. 247. Where the execution and return were duly recorded, but were not filed in the clerk's office it was held, under the former statute, that an action would not lie upon the judgment. Lawrence v. Pond, 17 433. 248 As to an officer's return after the return the return day, before G. S., Ch. 103, § 24; P. S„ Ch. 172, § 45, see Ingersoll v. Sawyer, (2 P.) 19 276; Prescott v. Pettee, (3 P.) 20 331; Welsh ». Joy, (13 P.) 30 477. 249. A judgment creditor cannot acquire title by a levy to a pew, where a pew is real property, until the execution as well as the re- turn is recorded. Sargent v. Pierce, (2 Met.) 43 80. 250. It is not sufficient that the execution and return, upon a levy on Hopkinton lands, be recorded in the registry of Hopkinton lands; they must be recorded in the registry of deeds for the county. Foster u. Briggs, 3 313. IV. Levy on bbal Pkopbktv by Sale. (1.) In what cases; effect. 251. Before St. 1874, Ch. 188, only an equity of redemption could be levied upon by sale, and it was held, that this was the only lawful mode of levying upon an equity of redemption, as such. Warren v. Ohilds, 11 222. 252. An equity of redemption, conveyed by a debtor in fraud of creditors, might be sold under execution, notwithstanding the provision for an extent upon land thus sold. Livermore «. Boutelle, (11 G.) 77 217. 253. St. 1874, Ch. 188, P S., Ch. 172, § 27-30, has so far changed the law as to au- thorize real property, not mortgaged, to be evied upon by sale instead of extent; but not to authorize the officer to levy upon, advertise, and sell such an estate, as an equity of redemp- tion, which is subject to a mortgage, when at- tached, but at the time of the levy is free from the mortgage. HacketU. Buck, 128 369; Bell v. Walsh, 130 163; Mansfield v. Dyer, lo3 374. 254. In such a case, the officer's deed, being S tem l hmtod to the equitable right, is a nul- %, and passes no title. ■ Hackett v. Buck, 128 369. f n!?' *!°!l corresponding rulings under the tamer statute, see Forster®. Mellen, 10 421, Freeman «. McGaw, (15 P.) 32 82; McGregor v. Williams (10 C.) 64 526; Pe5y v. WiTT 1 ,' * (1S C -) 66 344 : trover "■ 106 50 543; Gardner*. Barnes, 256. So, where the owner of a mill mortgages it, pending a complaint for flowing land, and judgment is recovered upon the complaint, a sale of his interest as an equity of redemption passes no title. Wight a. Barnstable Bank, 123 183. 257. But where the mortgaged land was taken, and, pending the notice of sale, the mort- gage was paid by the debtor, that would not defeat the sale. Capen «. Doty, (13 A.) 95 262. 258. Where land, subject to a mortgage, is levied upon as having been conveyed in fraud of creditors, by a sale of it as an equity of re- demption, it is no objection to the validity of the levy, that the mortgage covered another parcel of land, conveyed by the debtor to a dif- ferent grantee. Mansfield v. Dyer, 133 374. 259. The following decisions, respecting exe- cution sales of equities of redemption, were made in cases aiising before the statute of 1874; it is not clear how far some of them have been affected by that statute, and the revision and consolidation, in the P. S., of all the provisions relating to the subject of levy by sale: The sale of the debtor's right of redeeming the land does not pass any interest, not covered by the mortgage, of which he retains the legal title. Laflin v. Crosby, 99 446. The purchaser of the equity of redemption cannot deny the validity of the mortgage. Russell v. Dudley, (3 Met.) 44 147. If the debtor has fraudulently conveyed the equity, the purchaser thereof may avoid the conveyance, and redeem the mortgage. Gerrish «. Mace, (9 G.) 75 235. The purchaser cannot attack the mortgage as fraudulent, after three years from the recording of a certificate of taking possession for fore- closure. Taylor v. Dean, (7 A.) 89 251. Where the land is subject to two mortgages, and "all the right in equity" to redeem the same is sold, the purchaser is not estopped to contest the second mortgage, and he may com- mence a suit for possession against the second mortgagee, after one year from the return of the execution. Stebbins v. Miller, (12 A.) 94 591. Where husband and wife mortgage the wife's land, a sale of the equity upon execution against the husband, passes only his estate by the curtesy initiate Peabody v Patten, (2 P ) 19 517. Where " all the right of redemption" of the debtor is sold and conveyed, it is no ground to impeach the sale, that one parcel of land in- cluded was not the property of the mortgagor, or that a parcel not included in the advertise- ment, etc., and not his property, was bid off with the others, and the price included. Buffum » Deane, (8 C.) 62 35. Or that certain machinery and tools, not em- braced in the mortgage, were sold. Buffum v Deane, (8 C.) 62 35. For various other inaccuracies, irregularities, etc., which were not deemed sufficient to avoid the sale, see Buffum «. Deane, (8 C.) 62 35. 544 EXECUTION, IV, (1), (2). Rights of redemption of several parcels from several mortgages must be sold separately, but a stranger cannot take the objection. Fletcher c. Stone, (3 P.) 20 250. A sale by a second attaching creditor, before the first has recovered judgment, is void as to all the others, and the third succeeds to the rights of the second. Pease v. Bancroft, (5 Met.) 46 90. 260. A sale under an execution of part only of the lands included in one mortgage, passes no title. Webster i>. Foster, (15 G.) 81 31; Cochran v. Goodell, 131 464. 261. Where a power of sale, contained in a mortgage upon attached property, is executed before the execution is levied, by a sale of the land, if the creditor takes no steps for 30 days after judgment, to continue or enforce his lien upon the surplus proceeds in the mortgagee's hands, he cannot af terwards maintain an action or a bill in equity for the same. Gardner® Barnes, 106 505; Eldridge v. Kingsbury, 106 505. 262. A regular levy upon, and deed of, an equity of redemption, gives the purchaser seisin in law of the land, against a stranger in posses- sion, and a right to redeem, or pay the mortgage. Willington v. Gale, 7 138; Porter v. Millet, 9 101. 263. Since the statute of 1874, the right and title of the debtor in any land may be sold under the execution, and the sale will pass the title that the debtor had at the time of the attachment. Woodward «. Sartwell, 129 210. 264. Notice to the creditor, after levy and notice of sale, but before actual sale, that the land is held by the debtor in trust, the declara- tion of which has not been recorded, will not vitiate the sale. Colburn v. Jewell, 130 182. 265. If the purchaser of land, fraudulently conveyed by the debtor, conveys the land with- out taking possession, his grantee cannot main- tain a writ of entry therefor in his own name. Hunt v. Mann, 132 53. 266. Where the title to the land, at the time of the attachment, was of record in the debtor, but he had conveyed by deed, which was re- corded after the attachment, but before the levy, and the attaching creditor had no notice of the conveyance, a sale of the right, etc., of the debtor at the time of the attachment, and a deed by the officer accordingly, take preference of the debtor's conveyance. Woodward v. Sartwell, 129 210. LAs to questions of priority, see, also, Attach- ment, III.] 267. Where land, subject to a mortgage, is conveyed in fraud of creditors, and the grantee pays the mortgage, which is discharged of record, and then conveys to another, and a judg- ment creditor of the first grantor afterwards levies upon the land by sale, as an equity of redemption, the payment and discharge of the mortgage will not be deemed an assignment thereof, and the levy is void. Mansfield v. Dyer, 133 374. 268. If land, subject to a mortgage, is levied upon as conveyed in fraud of creditors, by a sale cf the equity of redemption, it is no'objec- tion to the levy, that the mortgage covered also another parcel, conveyed by the debtor to a different grantee. Mansfield v. Dyer, 133 374. 269. The levy of an execution, upon land attached upon a writ against one, to whom it was conveyed, by a deed, absolute in form, but in fact as collateral security for the grantor's debt, is invalid, if the creditor had notice, before the attachment, of the grantor's interest' Clark *. Watson, 141 248. [See, also. Attachment, I, (2).] 270. Where land is thus conveyed, a declara- tion, signed by the grantor only, stating the object of the conveyance, and duly recorded, will not defeat the levy of an execution upon the land, attached upon a writ against the grantee. Clark v. Watson, 141 248. (2.J Notice of sale; sale; proceeds; offi- cer's deed. 271. A levy by sale is made at the time of first giving the notice of sale; and any delay of of the officer in completing it is immaterial, if no interveningrights have been acquired. Belli;. Walsh, 130 163. See, also, Blanchard v. Brooks, (12 P.) 29 47; Haskell v. Varina, 111 84. 272. Under G. S;, Ch. 103, § 41, a notice of the sale, left by the officer at the last and usual place of abode of the debtor, was insufficient. Parker e. Abbott, 130 25; Welsh v. Macomber, 130 28; In re Bayley, 132 457. [See, now, St. 1881, Ch. 207, § 1 ; P. S., Ch. 172, § 46.1 273. As to the sufficiency of notice of sale of an equity of redemption. Mansfield «. Dyer, 133 374. 274. A return by the officer, "I could not find the debtor within my precinct," is sufficient to validate a notice by mail, under G. S., Ch. 103, §41; P. S., Ch. 172, §29. Owen ii. Neveau, 128 427. 275. A general description of the land suffices. Pomeroy v. Winship, 12 514. 276. The notice must specify the place of sa'e. Whitaker v. Sumner, tf P.) 24 551. 277. A return that the officer advertised a place of sale is so far conclusive between parties, that the title passes by the sale. Whitaker v. Sumner, (7 P.) 24 551. LSee.also, Sykes». Keating, 118 517, cited, pott' art. 295.1 278. Where an execution against the goods and chattels of a deceased person is levied upon an equity of redemption, the notice of sal? ought to be given to the executor or adminis- trator. Atkins v. Sawyer, (1 P.) 18 351. EXECUTION, IV, (2), (3); V. 545 279 Under the former statute, allowing an adjournment for not exceeding three days, Sunday was not counted; but where an adjourn- ment for seven days or more is allowed, as now, Sunday is counted. Thayer «. Felt, (4 P.) 21 354. 380. A sale at the officer's dwelling house, ■where his office is kept, at eight o'clock in the morning, is not necessarily improper. Woodward e. Sartwell, 129 210. 281. The officer is not liable to the judgment debtor for the surplus on a sale, which he holds upon a second attachment which has been dis- solved, until he has had notice of the disso- lution. King «. Rice, (12 C.) 66 161. 282. Where an equity of redemption is taken upon different executions by different officers, if the proceeds exceed the execution in the hands of the officer who sells, he is bound to pay the surplus to the other officer. Denny v. Hamilton, 16 402. 283. So where the same officer holds two exe- cutions, and sells under one, the levies are legal, and the surplus is properly applied to the other. Bacon S.Leonard, (4 P.) 21 277. 284. Where two creditors simultaneously at' tach, and a levy is made under both executions' each is entitled to a moiety of the proceeds' without regard to the amount of his execution' and if one execution is satisfied by less than a moiety, the surplus goes to the other. Sigourney «. Eaton, (14 P.) 31 414. 285. G. S., Ch. 103, § 40, as to recording the officer's deed within three months, was for the protection of bona fide purchasers and attach- ing creditors, and did not make the recording ■within that time a prerequisite to the vesting of title. Owen v. Neveau, 128 427. 286. An officer's deed, reciting that he had taken the equity of redemption which the debtor had at a specified time, being the time when it was attached on mesne process, and then recit- ing adjournments to and a sale at specified times, and conveying all the debtor's interest, etc., " at the time aforesaid," conveys the interest at the time of the attachment. Sanborn v. Chamberlin, 101 409 287. Where an officer sells and conveys to the debtor's wife the equity cf redemption of his land, the conveyance is void, and the title re- mains in the husband. Stetson w. O'Sullivan, (8 A.) 90 321. , 288. A recital of all the preliminary proceed- ings is not necessary to the validity of the offi- cer s deed, and a misrecital may be aided bv the return. J Welsh v. Joy, (13 P.) 30 477. 289. Nor need it recite the court from which tne execution was issued. Hayward v. Cain, HO 273. 290. But it conveys no title if the description Si tne land does not correspond to the descrip- tion in the return. Whiting v, Hadley, (3 A.) 85 357. Vol. 1—69 (3.) The officer's return, [For analogous principles, and rulings equally ap- plicable under this caption, see ante, III, (4). For various other rulings relating to returns, see ante, IV, (2). Generally, as to an officer's return, see Of- fice and Officer, I. (4).] 291. The rule is the same upon a levy by sale, as upon a levy by set off, that the return of the officer is necessary to complete the credi- tor's title, and it must show all the facts, as required upon a levy by set off. Walsh ii. Anderson, 135 65. See, also, Wellington ». Gale, 13 483; In- gersoll v. Sawyer, (2 P.) 19 276; Wade v. Merwin, (11 P.) 28 280; Welsh «. Joy, (13 P.) 30 477; Whiting v. Had- ley, (3 A.) 85 35T; Hayward v. Cain, HO 273. 292. It is unnecessary that the return should state, that the creditor elected to have the levy made by sale; or, if it states that the officer ad- journed the sale for want of bidders, that he deemed the adjournment expedient for the in- terest of all concerned. Sanborn v. Chamberlin, 101 409. 293. A purchaser, sued for his bid, cannot set up, as a defect of title, that the return does not state that the execution was satisfied. Sanborn «. Chamberlin, 101 409. 294. The return must state specifically the mode of giving notice; a general statement will not suffice. Davis i>. Maynard, 9 242; Wellington ■o. Gale, 13 483. 295. The return is equally conclusive, as upon a levy by set off. Thus, where it states that notice of sale of land upon Union street was given, it cannot be contradicted by proof that, in the printed notice, the property was described as upon Avon street. Sykes ■». Keating, 118 517. See, also, Whitaker •». Sumner, (7 P.) 24 551, cited, ante, art. 277. V. Redemption after Set Off or Sale. 296. Where two or more parcels of land are set off on the same execution, the debtor can- not redeem one without redeeming all. Bond v. Bond, (2 P.) 19 382. 297. If the purchaser of property sold is absent, so that he cannot, with due diligence, be found to make a tender to redeem, where the debtor or his assignee seasonably attempts to redeem, there is no forfeiture. Southworth v. Smith, (7 C.) 61 391. 298. Where the purchaser refused to accept a tender to redeem, and on a subsequent day, after sunset, demanded the money, a refusal then to pay it did not avoid the tender, as the demand was make at an unseasonable hour. Tucker e. Buffum, (16 P.) 33 46. 299. WTiere an equity of redemption is sold to a creditor of the mortgagor, the mortgagor is entitled to redeem it, without paying the pur- chaser's other demands. Loring v. Cooke, (3 P.) 20 48. 546 EXECUTION, V; VI. 300. The right to redeem an equity of re- demption extends to the debtor's assignee, or mortgagee in a second mortgage, made after the attachment on mesne process, and before the execution sale. Bigelow v. Willson, (1 P.) 18 485. 301 One, who has subsequently levied under an irregular judgment, has no right to file a bill to redeem upon a sale. Downs v. Fuller, (2 Met.) 43 135. 302 On a bill to redeem upon a sale, the de- fendant must account for rents and profits, although the plaint ff tendered him the full amount of the purchase money and interest; and if he occupied the premises himself, he must pay the fair annual value. Tucker v Buffum, (16 P.) 33 46. 303 An agreement between one holding land under a levy, and a purchaser from him of part of the land, that the latter shall not claim any of the redemption money, in case of a redemption, extends only to an actual and bona fide redemp- tion, by payment of the redemption money. Elliott v. Balcom, (11 G.) 77 286. 304. If the, purchaser and his grantee of part of the land agreed, at the time of the purchase, that the former should have all the redemption money, an arrangement between the foimer, and one, who had purchased the right to re- deem, and sold it to the plaintiff, that this por- tion should ba redeemed without paying any money, by releasing the right of redeeming the residue, is fraudulent against the purchaser of this portion, and entitles him to a dismissal of the bill to redeem. Elliott v. Balcom, (11 G.) 77 286. 305. Serrible, that the clause of the statute, requiring payment or tender to the purchaser, or the creditor to whom the land was set off, of expenses of repairing and improving, does not include the cost of large and expensive build- ings, or similar improvements. Norton v. Babcock,. (2 Met.) 43 510. [For analogous cases as to Improvements, upon a bill to redeem a mortgage, see mortgage, IV, (3).l 306. Where land is sold upon an execution for alimony, and bought in by the wife, the right of a grantee of the husband to maintain a bill to redeem, is the same as in other cases; and upon a bill for redemption, the question whether the husband's conveyance was without consideration and in fraud of creditors, cannot be determined. Sewall v. Bewail, 130 201. 307. "Where, pending the bill in equity in the case last cited, the wife obtained a decree for further alimony, and an execution, issued there- upon, was levied upon the husband's right to redeem, and she became the purchaser; and after the decree in equity, the sum fixed thereby for redemption was paid to her by the pur- chaser, and she, without tendering it back, brought a writ of entry against him, 'it was held, that she could not maintain the writ. Sewall v. Sewall, 139 157. 308. For other rulings, now obsolete, touch- ing redemption under former statutes, see Under St. 1815, Ch. 137, as to the right of the mortgagor to redeem from the purchaser of the equity of redemption, who has paid themortgage. Atkins «. Sawyer, (1 P.) 18 351. The day of executing the deed was not in- cluded, in computing the time to redeem under that statute. Bigelow v. Willson, (1 P.) 18 485 The tender must have been unconditional; a demand for a release vitiated it. Loring v. Cooke, (3 P.) 20 48. Under the R. S., a bill to redeem without previous tender, must have been brought within one year from the time of sale, not from the commencement of the levy. Houghton v. Field, (2 C.) 56 141. VT. Service by Arrest. [As to the affidavit and magistrate's certificate, re- quired to authorize an arrest under the existing statutes, see, also, Arrest, I, (1). As to a discharge upon taking the poor debtor's oath, see Poon Debtor. As to an escape, see that title.] 309. Where a constable arrests a debtor and commits him to jail, but leaves no copy of the execution with the jailor, who, therefor, refuses to detain him, he cannot again arrest the debtor on the same execution. Houghton c. Wilson, (10 G.) 76 365. 310. If an erroneous copy is left with the jailor, but immediately afterwards a correct copy is left, although meanwhile a liaieascorpm has been brought, the debtor will not be dis- charged. Comm. v. Waite, (2 P.) 19 445. 311. A debtor, arrested and carried before a magistrate, may be committed without exami- nation, if he does not ask to take the poor debtor's oath. Hart v. Adams, (7 G.) 73 581. 312. In such a case, if he subsequently de- sires to take the oath, the magistrate cannot take a recognizance, under P. S., Ch. 162, § 28. Cook v. Harrington, 139 38. 313. The officer's return that the debtor ar- rested did not desire to take the poor debtor's oath, is a full justification for a commitment to jail; and an additional statement, that he failed to procure satisfactory sureties, may be rejected as surplusage. Hyde «. Malley, 121 388. 314. Where the debtor has been taken and committed under an execution, and discharged with the creditor's consent, the same execution cannot be levied on his property. Nowell v. Waitt, 121 554. 315. Aliter, under G. S., Ch. 124, §§ 23, 29, where the execution was to enforce a decree for alimony. Chase v. Chase, 105 385. 316. Nor can he, in such a, case, be again taken on the same execution, or any other exe- cution issued upon the same judgment. Little v. Newburyport Bk., 14 443. 317. But if he was liberated upon his promise to surrender himself anew, and does so, he may be again imprisoned. Little ®. Newburyport Bk., 14 443. EXECUTION, VI; VII— EXECUTOK, ETC. 547 318 If the execution is, in part, satisfied by a levy upon property, the debtor may be arrest- ed and committed upon the same execution for the balance. But, stmble, that where he is first committed, his property cannot bo taken. Dodge v. Dome, (ii C.) 57 460. 319. An execution against a manufacturing corporation, containing only a command to take its property, authorizes the arrest of a stock- holder who was summoned. Eichmond «. "Willis, (13 G.) 79 182. 320. An execution, with the affidavit required hy law, authorizes the officer to arrest the debtor without special instructions, and without search- ing for property. Webber e. Davis, (5 A.) 87 393. 321. One of two judgment debtors cannot ob- ject to his commitment, on the ground that he offered to point out to the officer sufficient prop- erty of the other, to satisfy the execution. Dooley v. Cotton, (3 G.) 69 496. 322. The prohibition in G. S., Ch. 124, § 5, to arrest for less than $30, exclusive of costs, did not apply, where the judgment was upon a hond given, to dissolve an attachment for less than $20, in a former action, but made by the costs to exceed that sum. Hooper v. Cox, 117 1. [See now, P. S. Ch. 162, § 17.] 323. As to the arrest of a married woman before the G. S. ' Comm. v. Badlam, (9 P.) 26 362. 324. Where the plaintiff or his attorney, upon delivering an execution to an officer, dircets Mm not to commit the defendant until further orders, the officer is justified in omitting an arrest till further orders; and, if he arrests, he cannot hold the defendant. French ». Bancroft, (1 Met.) 42 502. 325. If an execution is issued during the plaintiff's life, on which the defendant is ar- rested after the plaintiff's death, he cannot be discharged on habeas corpus. Comm. v. Whitney, (10 P.) 27 434. 326. Under the existing statute, where a judg- ment debtor is lawfully arrested, he is arrested and held by virtue of the execution, not of the charge or certificate. In re Macaig, 137 467. See, also, Stewart v. Griswold, 134 391. 327. If he wishes to be discharged without paying the debt, he can only do so by applica- tion to take the poor debtor's oath. In re Macaig, 137 467. [See, also, Poob Debtor, III, (3).] hp 3 fl?i derP - S - Ch - m - an infant ca^ot oe arrested upon an execution. InreCassiei, 139 456. VII. Writ op Possession. returner 1 '- ? B 08 ***""!, duly served and returned, is original and competent evidence of W v. Ireson, (1 A.) 83 61. _ 330. An officer's return to a writ of posses- sion, must be recorded to pass title; but it need not, and should not, state that he has caused it to be recorded. Bobbins v. Rice, (7 G.) 73 202; Law «. Ireson, (1 A.) 83 61. 331. An officer, under a writ of habere facias possessionem, must, in order to put the party in possession, remove all other persons from the premises, using no unnecessary force. Howe v. Butterfield, (4 C.) 58 302. 332. Where the writ commanded the officer to put the party in possession of an undivided part of a house, and the officer, after entry, forcibly removed another entering without right, he was justified in so doing, both by the writ, and the order of the owners of the other part of the house, who were assignees of the judgment. Howe v. Butterfield, (4 C.) 58 302. 333. In executing such a writ, the officer may break a door which is fastened, without pre- vious demand, if the persons within are there to hold possession by force, and to oppose the execution of the writ, and it does not appear that he knew that any one was within. Howe v. Butterfield, (4 C.) 58 302. 334. But it is not the officer's duty to expel persons who were in possession, claiming title in themselves, when the suit was commenced, and who do not claim under the person against whom the writ runs, nor resist the officer in his attempt to remove the latter, and those claiming under him. Clark v. Parkinson, (10 A.) 92 133. 335. To put the party in possession of a house, requires the removal, not only of the ad- verse party, but of his family and effects; and the officer is justified in removing the latter's wife, although she claims title in her own right, if her claim is invalid. Eiske v. Chamberiin, 103 495. Executor and administrator. I. General Rules; different Kinds of Executors and Administrators. (1.) Domestic executor or administrator; ex- ecutor and trustee; executor of executor (2.) Administrator with the will annexed; administrator de bonis non. (3.) Executor of his own wrong. (4.) Foreign executor or administrator; an- cillary administration. II. Appointment; Bond; Removal. (1.) Jurisdiction; effect; notice of appoint- ment. . (2.) Persons entitled to administration. (3,) Bond; effect, and breach thereof. (4.) Action on the bond. (5.) Removal. III. Inventory; Assets, and summary Pro- ceedings to discover them. (1.) Inventory, what are assets. 548 EXECUTOK, ETC., I, (1). (2.) Allowances to a widow. (3.) Summary proceedings to discover assets. IV Real Propebty. (1.) General principles. (2.) De. ise of power of sale. (3.) Sale by license to pay debts, legacies, or expenses V. Rights, Liabilities and Remedies in ADMINISTERING THE ESTATE. (1.) Rights and powers. (2.) Duties and liabilities. (3.) Actions by and against. VI. Insolvent Estate. VII. Disposition op the Estate. (1.) Payment of debts and legacies. (2.) Distribution. VIII. Accounting; Compensation. (1.) Mode of accounting; effect of decree; re-opening. (2.) Items chargeable against and allowable to the accounting party. IX. Public Admlnisteatob. [As to the right of an executor or administrator to file a bill for instructions, or a bill of interpleader, see Equity Jurisdiction, ii, (2); Interpleader. As to controversies between co-executors or co- administrators, see Equity Jurisdiction, II, (8). As to an execution de bonis propriis for costs of a suit, see Costs, I, (i). As to the application of the statute of limitations for or against an executor or administrator, see Limitation, III. As to the actions which survive or abate by death, see Abate- ment, etc., I, (1). For additional and analogous cases, see Descent and Distribution; Devise and Be- quest; Guardian and Ward; Heirs, etc.; Pro- bate Court; Trust; Widow; Will.] I. General Rules; dipebent Kinds op Ex- ECUTOBS AND ADMINISTRATORS. (1.) Domestic executor or administra- tor ; executor and tmstee ; executor of executor. 1. An administrator derives all his powers from his appointment; but an executor derives his powers from the will, of which the letters testamentary are the due and proper authenti- cation. Rand o Hubbard, (4 Met.) 45 252. 2. The property of the goods is therefore vested in the executor before probate; he may pay, release, and receive debts, and may per- form most of the other duties of his office. He may maintain trover for goods taken from him. He may also commence any other action; but he cannot declare, because he must make pro- fert of his letters. Rand «. Hubbard, (4 Met.) 45 252. 3. These powers, however, are in some re- spects modified and restrained by statute; but to what extent must be determined, when ques- tions arise, upon a just construction of the statutes. Rand v. Hubbard, (4 Met.) 45 252. 4. But an administrator, although entitled to> administration, can do nothing before adminis- tration is granted to him. Rand v. Hubbard, (4 Met.) 45 252. 0. Nevertheless, when the administrator is appointed, the personal property vests in him by relation back, from the time of the intes- tate's death. Jewett «. Smith, 12 309; Wonson v Sayward, (13 P.) 30 402; Lawrence s Wright, (23 P.) 40 128; Hatch v. Proc- tor, 102 351. 6. Where, by the terms of a will, a person is appointed executor, and he is not required, as executor, to act as trustee for any particular person, but after his duties as executor are per- formed, the remainder of the estate is be- queathed and devised to him upon specific- trusts, the offices of executor and trustee are distinct; and if he qualifies as executor, but not as trustee, another may be appointed trustee. Daggett ». White, 128 398. See, also, Dorr v. Wainwright, (13 P.) 30 328; Watts t>. Howard, (7 Met.) 48 478; Tainter v. Clark, (13 Met.) 54 220; Clark v. Tainter, (7 C.) 61 567; Prior e. Talbot, (10 C.) 64 1; Carson «. Car- son, (6 A.) 88 397; and post, V, (1). 7. So where a trust was vested by the will in three executors, two of whom resigned, and it was apparent that the testator intended that, there should be three trustees, the court ap- pointed two other persons to constitute, with the third executor, the trustees. Atty.-Gen'l v. Barbour, 121 568. 8. By the common law, if an executor is ap- pointed, there can be no unbequeathed personal Droperty; for the executor takes all the personal estate, and if there is a surplus, after paying debts and legacies, it is his, either absolutely, or, if the testator has excluded him from it, as trustee for the next of kin. Hays v. Jackson, 6 149. 9. An administrator here has all the power over the goods, which is possessed by an admin- istrator at common law ; and he must adminis- ter all goods, chattels, rights, and credits, of the. intestate within the State. Goodwin ». Jones, 3 548. 10. As an executor and an administrator have substantially the same trust, it is not a fatal misnomer or misdescription, for an executor to describe himself as administrator in a writ, notice, deed, or other instrument. Cooper ». Robinson, (2 C.) 56 184; Sheldon v. Smith, 97 34; Finney v. Barnes, 97 401. 1 1 . Where an executor, who had given bond to pay debts and legacies, paid during his life an annuity given by the will to A, and by his will appointed B his executor, with power to sell his real property, and invest the proceeds to meet his liabilities under the first will; and B sold real property accordingly, and took mortgages, which he subsequently sold, and paid the annuity for several years, until he became bankrupt; previously to which time D, a surety upon B's bond as executor, died, and his estate was settled, before any default in paying the annuity; it was held, in an action for tbe benefit of A, against the devisees of D, under G. b., Ch. 101, §§ 31, 32, that, in discharging the EXECUTOE, ETC., I, (2), (3). 549 trust B was not acting as an executor; that it might be inferred that B created a trust fund; iinl that the action could he maintained. Brooks «. Rice, 131 408. (2.) Administration with the will an- nexed; administrator de bonis non. 12. An executor, directed hy the will to sell land'for the support of the testator's widow, in a certain contingency, is clothed with a personal trust, which ceases at his death. Hunt «. Holden, 2 168. 13. But in general, where an authority, given by the will to the executor, is not necessarily connected with a personal trust or confidence, reposed in him by the testator, the duties result- ing from the office of executor, and charged upon him as such, devolve upon an administra- tor with the will annexed, or an administrator de bonis non. Farwell v. Jacobs, 4 634; Blake v. Dexter, (12 C.) 66 559. [See Power, III, (1).] 14. And where a will made the testator's widow the executrix, and give her the income for life, and the principal on her marriage or death to his heirs, the husband's administrator trator de bonis non succeeds to the trust, upon her death, and may recover the principal or the proceeds from her executor. Bewail e. Patch, 132 326. See, also, Buttrick v. King, (7 Met.) 48 20. 15. Upon the probate of a will naming no executor, and the appointment of an adminis- trator with the will annexed, the personal property vests in him by relation, from the death of the testator; and where the will directs trustees named therein to collect the personal assets, and pay debts and funeral expenses, such directions are inoperative and void. Brury « Natick, (10 A.) 92 169. 16. Where an action would not have lain upon a debt due to the decedent, in favor of the original executor or administrator, no action will lie upon it in favor of the administrator with the will annexed, or the administrator de bonis non; as, for instance, where the maker of a note was the former executor. Leland i>. Felton, (1 A.) 83 531; Tarbell v. Jewett, 129 457. See, also, Stevens v. Gaylord, 11 256, Winship«. Bass, 12 197; Hobart v Stone, (10 P.) 27 215; Ipswich M. Co, v Story, (5 Met.) 46 310; Sigourneya. Wetherell, (6 Met.) 47 553; Inman «. Mead, 97 310; Tarbell «. Parker, 101 165; Chapin «. Waters, 110 195; Hazelton «. Valen- tine, 113 472; Choate «. Arrington, 116 552; Comm. «. Gould, 118 300; Peterson*, Farnum, 121 476. , 17 ' Before the statute, an administrator with tae will annexed could not have maintained a writ ot error, to reverse a judgment recovered Dy the original executor. Grout v. Chamherlin, 4 611. aft a^ admm i str ator de bonis non, appointed aner the absconding of an executor, may re- cover back money paid by the executor to the guardian of an infant, who was not entitled to receive it by the terms of the will, with interest from the time of the demand. Stevens «. Goodell, (3 Met.) 44 34. 19. Where an executor has advanced his own moneys, to pay claims against the solvent estate of his testator, and dies without receiving enough to reimburse himself, or settling his account, and the balance due him has been settled in the probate court upon his adminis- trator's account, the latter cannot recover the amount found due, by action against the admin- istrator de bonis non. Munroe v. Holmes. (9 A.) 91 244. See, also, Munroe ». Holmes, (13 A.) 95 109. 20. "Where the assignees of a deceased bank- rupt assigned property of the deceased to his administrator with the will annexed, for his own use and benefit, he was nevertheless adjudged to be accountable therefor to the creditors, or to those entitled under the will. Dawes v. Boylston, 9 337. 21. The administrator of an insolvent estate must account to an administrator de bonis non, for money, paid on the debts of the intestate by the first administrator, during the first year of his administration, although without knowledge that the estate was insolvent. Cobb i). Muzzey, (13 G.) 79 57. 22. An administrator must account to an ad- ministrator de bonis non, for chattels included in his inventory, although they are also included in the latter's inventory. Cobb v. Muzzey, (13 G.) 79 57. 23. Where a surety upon the bond of an ad- ministrator, who is removed for failure to account for assets, is himself appointed admin- istrator de bonis non, his liability upon the bond is a debt in his hands, although the amount has not been fixed; and his sureties are liable there- for. Choate v. Thorndike, 138 371. 24. It is no defence to an action against an administrator de bonis non, under P. S., Ch. 136, § 19, that the executor, who was also residuary legatee, had given a bond to pay debts and legacies. Collins 1>. Collins, 140 502. (3.) Executor of his own wrong. tG. S., Ch.94, §§ 14, 15; P. S., Ch. 133, §§. 17, 18.] 25. Formerly it was held with great strictness, that no one could interfere in the least with the property of an intestate, before grant of letters, without being liable as executor de son tort; but now it is determined, that acts necessary for the preservation of the property, and necessary acts of kindness and charity, do not have that 'Perkins «. Ladd, 114 420. See, also, Mitchel ». Lunt, 4 654. 26. And where one has, in good faith, and at the request of the person entitled to adminis- tration, sold perishable property of an intestate, and paid over the proceeds to the same person. 550 EXECUTOR, ETC., I, (3), (4). he is not liable therefor to the administrator subsequently appointed. Perkins v. Ladd, 114 420. 27 One, who takes a promissory note before the owner's death, and holds it afterwards, and neglects to collect it until the maker becomes insolvent, is liable to the lawful administrator as an executor in his own wrong. Root v. Geiger, 97 178. 28 Where, after the death of a mortgagee, intestate, his heirs at law entered and assumed to foreclose, and under color of sueh fore- closure, held open and peaceable possession for eight years, when an administrator was ap- pointed upon the mortgagor's petition; the mortgagor may maintain a bill to redeem against the administrator and the heirs, upon which the heirs are chargeable to the adminis- trator, as executors de son tort, and he to the plaintiff, for rents and profits. Haskins v. Hawkes, 108 379. 29. The subsequent appointment of one, as administrator, legalizes his previous acts as ex- ecutor de son tort. Alvord c. Marsh, (12 A.) 94 603; Hatch v. Proctor, 102 351. See, also, Shillaber «. Wyman, 15 322; Andrew «. Gallison, 15 325, note. 30. If, after such appointment, a previous sale is ratified by mutual consent, he can main- tain an action as administrator for the price. Hatch v. Proctor, 102 351. 31. Intermeddling with lands of the deceased will not render one an executor de son tort. Mitchel ». Lunt, 4 654. 32. A creditor, who has recovered Judg- ment against an executor de son tort, cannot levy his execution upon the real property of the deceased Mitchel v. Lunt, 4 654. 33 An executor de son tort cannot settle the estate, he cannot maintain an action, or make any valid disposition of personal property; no trusts can arise by his acta and doings, he is not liable for waste for not collecting assets, and thereby subjecting the land to be sold. Mitchel v. Lunt, 4 654; Campbell «. Sheldon, (13 P.) 30 8. 34. An executor de son tort may discharge himself, even against the demand of the right- ful administrator, by proving debts paid to the amount of the goods received. Weeks v. Gibbs, 9 74. (4.) Foreign executor or administra- tor s ancillary administration. 35. Where a deceased nonresident leaves debts or effects in this Commonwealth, they cannot be collected by an administrator ap- pointed at the place of his domicil; but admin- istration must be granted here for the purpose. Such administration is merely ancillary to the principal administration, granted in the juris- diction, where the deceased dwelt. Stevens i>. Gaylord, 1 1 256. [That a foreign executor or administrator cannot sue here, see, also,;»s(, art. 53.] 36. It is not a prerequisite to the granting of ancillary administration, that original adminis- tration should have been previously granted, in the jurisdiction where the deceased dwelt. Stevens v. Gaylord, 1 1 256; Bowdoin v. Holland, (10 C.) 64 17. 37. Under ancillary administration, the ad- ministrator has authority to collect and pay debts, and is liable for the contracts and duties of the deceased, which may be enforced within his jurisdiction; but he is not liable in the court of probate to any partial account, or to a de- cree of distribution, or payment of a legacy. Dawes v. Boylston, 9 337; Jennison v. Hapgood, (10 P.) 27 77. 38. Nor is a foreign executor or administra- tor, whether he does or does not take out ancil- lary administration here, liable to account for property received in his own jurisdiction. Boston «. Boylston, 2 384; Pay v. Haven, (3 Met.) 44 109; Wheelock o. Pierce, (6 C.) 60 288; Norton «. Palmer, (7 0.) 61 523. 39. But one, taking out ancillary administra- tion here, is bound to render an inventory and an account of assets, which came to his hands here. Dawes v. Boylston, 9 337. 40. All questions as to the accountability of the ancillary administrator, the sums or prop- erty which are chargeable or to be allowed him, his liability to creditors or those interested in the estate, and the mode and sufficiency of his accounting, are to be determined in the foreign jurisdiction. Jennison ■». Hapgood, (10 P.) 27 77; Fay v. Haven, (3 Met.) 44 109; Rand . v. Hubbard, (4 Met.) 45 252; Clark ». Blackington, HO 369. 41. So where a domestic executor or admin- istrator takes out ancillary letters elsewhere, he is accountable there for assets received or land sold there; but money collected there from debt- ors residing here, must be accounted for here. Hooker v. Olmstead, (6 P.) 23 481; Jennison v. Hapgood, (10 P.) 27 77; Clark v. Blackington, 110 369. 42. If, however, he has a surplus, arising from administration there, he must account for it here, as if 't had been paid to him by a for- eign administrator. Stevens v. Gaylord, 11 256; Clark v. Blackington, 110 369. 43. A judgment against an ancillary admin- istrator, in another state, of the estate of a citi- zen of Massachusetts, is not binding here. Low v. Bartlett, (8 A.) 90 259. 44. Nor is a decree of the court of probate there, allowing a claim and finding a balance in his hands. Ela ». Edwards, (13 A.) 95 48; Clark s>. Blackington, 110 369. 45. The settlement in the foreign jurisdiction of the account of an executor, appointed here, who took out ancillary letters elsewhere, may be impeached here for fraud, and the executor may be compelled to respond here. Clark ii. Blackington, 110 369. 46. An ancillary administrator, appointed here cannot recover money sent by the foreign EXECUTOE, ETC., I, (4); II, (1). 551 administrator here, to pay a residuary legatee, although debts here are unpaid. Wheelock b. Pierce, (6 C.) 60 288. 47. Under St. 1785, Ch. 12, an ancillary ad- ministrator, appointed here, upon filing the foreign will, was bound to pay the testator's debts" to creditors residing here, hut not to pay legacies. Richards i>. Dutch, 8 506. 48. But if the assets, both here and abroad, were not sufficient to pay all the debts, here and abroad, the debts here were entitled to be paid only pro rata. Dawes v. Head, (3 P.) 20 128; Davis v. Estey, (8 P.) 25 475. 49. Where a man dies here, leaving a will, in which he describes himself as a resident of another stale, and leaving real property here; and the will is proved there, and presented here by the executor for ancillary probate, and con- tested by a woman to whom he left nothing, and who claims to be his widow; on her appeal from the decree granting the ancillary probate, she cannot have an allowance out of the estate. Shannon v. White, 109 146. 50. Qu., whether if she had filed a written waiver of the will, she might have claimed dower here, and thus have procured an allow- ance out of the income of the realty. Shannon v. "White, 109 146. 51. Where a resident of another state died, having assigned to a creditor here, as collateral security, a policy of life insurance, issued by a company here, and an administrator was ap- pointed at his domicil, and the creditor was appointed ancillary administrator here; and the principal administrator sued the company in the foreign jurisdiction, and procured an in- junction there against paying the creditor; and the ancillary administrator sued here; it was held that the former suit was not a bar to the latter. Merrill «. New England Ins. Co., 103 245 52. And an ancillary administrator, appointed here, may sue for a debt due from a citizen of this Commonwealth, although the principal administrator has already recovered judgment upon it, in the foreign jurisdiction, and levied upon the party's real property. Pond «. Makepeace, (2 Met.) 43 114. 53. A foreign executor or administrator, as such, can neither sue nor defend an action here, at law or in equity. Goodwin v. Jones, 3 514; Borden v Borden, 5 67; Langdon v. Potter, 11 313; Beaman v. Elliot, (10 C.) 64 172; Cassidy v. Shimmin, 122 406. 54. But the objection is not available unless it is pleaded. Langdon o. Potter, 11 313. 55. He can sue, however, upon a judgment T m ff d ^ Um in bellalf of tne est ate, against the defendant in his own state, as such an action may be brought by him individually. Talmage t>. Chapel, 16 71. 56. Nor can he assign a mortgage on land r^L 80 ** 8 * autnor ize the assignee to maintain a writ of entry. Cutter v. Davenport, (1 P.) 18 81; Uutchinsu. State Bk., (12 Met.) 53 421. 57. So where it is necessary to make title to real property here, through an executor's deed, executed under a power in the will, it must be done by an executor having letters granted here. Hutchins v. State Bk., (12 Met.) 53 421. 58. But if a foreign executor can, without a suit, take possession of goods or other effects, in the hands of a bailee of his intestate here, or can collect a debt from a resident here, he may do so, and his acquittance and discharge are good. Hutchins v. State Bk., (12 Met.) 53 421. 59. So he might have seized a fugitive slave, under the former act of congress. Coram, v. Griffith, (2 P.) 19 11. 60. A foreign administrator is presumed to have authority in his own state, to sell a note and mortgage. Clark v. Blackington, 110 369. II. Appointment; Bond; Kemoval. [See, also, Probate Coukt.1 (1.) Jurisdiction; effect; notice of ap- pointment, 61. The object of appointing an administra- tor is not to determine the rights of parties interested in the estate, but to have a legal rep- resentative of the estate within the Common- wealth, against or through whom such rights may be asserted. Prescott v. Durfee, 131 477. See, also, Livermore v. Haven, (23 P.) 40 1 16 ; Bowdoin ». Holland, (10 C.) 64 17; Pinney v. McGregory, 102 186; Mer- rill v. New England Ins. Co., 103 245; Parsons ®. Spauiding, 130 83. 62. The probate court has jurisdiction to grant administration of the estate of one who dies without the Commonwealth, leaving only real property within the county, although the estate is solvent. Prescott v. Durfee, 131 477. 63. It is no objection to the granting of origi- nal administration, that the only property, to be affected thereby, is a promissory note secured by a mortgage of land, which has been for 20 years held adversely, by the person opposing the grant of administration. Parsons «. Spauiding, 130 83. 64. In such a case, if administration is ap- plied for within five years after the property becomes known, knowledge is not necessarily to be imputed to the applicant, from the facts that he was the intestate's brother, and that the mortgage was recorded. Parsons v. Spauiding, 130 83. 65. The word " inhabitant," in the statute, giving jurisdiction to the probate court, means more than one who has only a domicil. it im- ports citizenship and municipal relations. Cutts v. Haskins, 9 543; Holyoke v. 552 EXECUTOR, ETC., II, (1), (2). Haskins, (5 P.) 22 20; Harvard College v. Gore, (5 P.) 22 370. 66. Administration can be granted here upon the estate of a deceased nonresident, although he left a will, which has not been proved in the place of his domicil. Bowdoin v. Holland, (10 C.) 64 17. 67. And if the judge of probate is satisfied that there is reasonable ground to believe, that thj deceased has fraudulently conveyed his real property here, administration ought to be granted upon a creditor's petition. Bowdoin v. Holland, (10 C.) 64 17. 68; See further, as to the sufficiency of the effects, which will authorize administration upon a nonresident's estate. Mc parte Picquet, (5 P.) 22 65; Har- ringtons. Brown, (5 P;) 22 519; Pinney v. McGregory, 102 186. 69. The probate court has no jurisdiction, if the nonresident left no effects here. "Where he left property which has been removed, or where he is the mortgagee in a mortgage paid, but not discharged of record, there is no jurisdic- tion. Crosby v. Leavitt, (4 A.) 86 410. 70. The following rulings were made under former statutes: Under St. 1783, Ch. 36, 8 10, administration granted 20 years after death was wholly void. Wales v. Willard, 2 120. Before the G. S\, administration granted by a judge of probate, who had a claim against the estate, although he had determined not to enforce it, was wholly void. Ex parte Cottle, {5 ~P.) 22 483; Coffin v. Cottle, (9 P.i 26 287; Sigourney v. Sibley, (21 P.) 38 101; Sigourney ». Sibley, (22 P.) 39 507. Under St. 1783, Ch. 36, § 10, where there was a direction in a will to sell real property for the support of the widow, and a third person had advanced her supplies for her support, this was not a debt against the estate, under which ad- ministration de bonis non could be granted. Hunt ». Holden, 2 168. Under St. 1817, Ch. 190, § 17, an unpaid legacy was not such a debt. Chapin t>. Hastings, (2 P.) 19 361 71. Administration de bonis non may now be granted, in special cases, more than 20 years after the original administrator's death. Bancroft v. Andrews, (6 C.) 60 493. [As to an appeal from the decree of the probate court, upon an application for administration, see Appeal, I, (1).] 72. A grant of administration upon the estate of a living person is wholly void. Jochumsen v. Suffolk S. Bk., (3 A.) 85 87. 73. Acquiescence for any length of time will not validate a void grant of administration. Holyoke «. Haskins, (5 P.) 22 20; Holyo'ke v. Haskins, (9 P.) 26 259; Sigourney ». Sibley, (21 P.) 38 101; Sigourney v. Sibley, (22 P.) 39 507. 74. But if it was voidable merely, it cannot be attacked collaterally. Emery v. Hildreth, (2 G.) 68 228. 75. The decree of the probate court, granting administration, is not an adjudication that the person is dead, as against him, if he is living; nor is it admissible in proof of death, as be- tween strangers, or even in an action brought by the administrator in his individual capacity. But it is admissible, without proof of death, hi an action by or against the administrator, in his official capacity. Day v. Floyd, 130 488. See, also, Newman «. Jenkins, (10 P.) 27 515. 76. And the decree cannot be attacked col- laterally, on the allegation that the administra- tor's appointment was procured by his fraud and falsehood, respecting the residence of the deceased, if there is no want of jurisdiction ap- parent upon the record. McPeely v. Scott, 128 16. [See, also. Estoppel, II, (1); Former Adjudica- tion, II; Probate Court, II.] 77. Where executors file a petition for pro- bate, but declining the trust, and praying for the appointment of an administrator with the will annexed, on which notice is issued, and before action, one of them files a notice, with- drawing his declination, and praying to be ap- pointed executor, he^nay be so appointed with- out a new notice. Shannon v. Shannon, 111 331. 78. The fact that the probate court ordered an administrator, to give notice of his appoint- ment, by advertising and posting, with proof that he advertised, will not authorize the jury to presume posting, even after 20 years. Hudson ii. Hulbert, (15 P.; 32 423. 79. The newspaper itself is sufficient proof of advertising, without proving that it is genu- ine, unless its genuineness is impeached. Hudson v. Hulbert, (15 P.) 32 483. 80. The giving of the notice may be proved by oral testimony, as well as the statutory affi- davit. Green®. Gill, 8 111; Henry v. Estey, (13 G.) 79 336; Estesfl. Wilkes, (16 G.) 82 363. 81. An executor's notice of his appointment is not void, because he describes himself therein, and signs it, as administrator. .Finney ». Barnes, 97 401. (2.) Persons entitled to administration. 82. If the widow is evidently unsuitable for the trust, she will not be appointed; and proof that she is under the influence of a debtor, in combination with whom the deceased was ac- cused of perpetrating a fraud, and that the ap- plication is made at his instigation, suffices to exclude her Stearns v. Fiske, (18 P.) 35 24. 83. The next of kin are entitled, next after the widow; and if she renounces, she cannot nominate another to their exclusion, except where the thirty days have elapsed. Cobb v. Newcomb, (19 P.) 36 336. 84. The widow, and next of kin, are first en titled to administration with the will annexed EXECUTOK, ETC., II, (2), (3). 553 although the application to prove the will and- Lit such administration is made by a creditor. Stebbins v. Lathrop, (4 P.) A\ 38. 85 But under G. S., Ch. 101, § 1; P. S., Oh. 130, 8 9, they are not entitled of right to admin- inistration de bonis non. Russell •. Hoar, (3 Met.) 44 187. 86. Under St. 1783, Ch. 36, §8, another could not be joined with the widow. McGooch v. McGooch, 4 348. 87 As to the sufficiency of the renunciation, or neglect for 30 days, of the widow and next of kin, and of a citation to them, to authorize the appointment of a creditor. Arnold v. Sabin, (1 C.) 55 525. A legatee is not a creditor within the Chapin v. Hastings, (2 P.) 19 361. 89. As to one who has furnished the widow with supplies, where the will provided for her support. Hunt t>. Holden, 2 168; cited, cmte, art. 70. 90. The creditor applying may prove his claim by his book account and suppletory oath. Arnold ». Sabin, (1 C.) 55 525. 91. An agent for a creditor, whose claim is disputed, will not be appointed. Dexter v. Brown, 3 32. 92. One, whose cause of action does not sur- vive, is not a creditor within the statute. Stebbins v. Palmer, (1 P.) 18 71; Smith ». Sherman, (4 C.) 58 408. statute (3.) Bond; effect, and breach thereof. [See, also, Alteration of Instrument ; Bond' I;IY; Guardian, V; Trustee, I, (3).] 93. The notice required by G. S., Ch.93, §5; P. S. , Ch. 129, § 8, to be given to creditors, etc. , before exempting an executor from procuring sureties on his bond, may be given by publica- tion, although one of such persons is an infant who has no guardian. Wells «. Child, (12 A.) 94 330. 94. If, after a decree thus exempting an ex- ecutor, he flies a bond without surety, dated back, it is sufficient, and the statute of limita- tions begin to run from the filing. Wells v. Child, (12 A.) 94 330. 95. But a bond without surety, although ap- proved by the judge of probate, is not the statutory bond required of an executor, if given without notice to creditors; and the statute of limitations does not begin to run upon the filing the filing thereof. Abercrombie e. Sheldon, (8 A.) 90 532 See, also, In re Picquet, (5 P.) 22 66; Baldwin v. Standish, (7 C.) 61 207. 9 ?'^f lder tne R - S., an executor's bond, ex- ecuted by two resident and one nonresident sureties, if approved by the probate court, would authorize the executor to act. Clarke v. Chapin, (7 A.) 89 425. Vol. 1—70 97. If not signed by the principal, the bond is not binding on the sureties. Wood ii. Washburn, (2 P.) 19 24. 98. Where, after the bond has been executed by the principal and two sureties, the judge of probate, with the principal's consent, increases the penalty, and it is then signed, in ignorance of the alteration, by two other sureties, it binds the principal, but neither one of the sureties. Howe v. Peabody, (2 G.) 68 556. 99. But if it is executed in blank, and filled up by the principal with a larger penalty than was agreed upon, the surety is bound. White e. Duggan, 140 18. 100. As to the form under the former statute, now superseded. Hall e. Cushing, (9 P.) 26 395. 101. Upon the affirmance of the decree of probate, a new bond is not required, if one was given before the appeal. Dunham v. Dunham, (16 G.) 82 577. 102. Before St. 1880, Ch. 152, § 2; P. S., Ch. 143, § 4, a new bond was not required upon a license to sell real property. Fay «. Valentine, (8 P.) 25 526; Tenney v. Poor, (14 G.) 80 500. See, also, Bennett ». Overing, (16 G.) 82 267. [Under the present statute, see post, IV, (3).] 103. The bond to pay debts and legacies, which the probate court may permit an executor to give, who is also a residuary legatee, is a conclusive admission of assets; it takes the place of the property, in providing for the payment of debts and legacies; and is for the protection, not merely of those to whom they are immedi- ately due, but of all who are interested in the payment thereof. Thayer v. Winchester, 133 447. See, also, Clarke v. Tufts, (5 P.) 22 337. 104. Such a bond does not release real prop- erty, devised to the executor, charged with the payment of a legacy. Amherst College v. Smith, 134 543. 105. Nor is it a bar to an action against an ad- ministrator de bonis non, with the will annexed. Collins v. Collins, 140 502. 106. Where the executor has given such a bond, he cannot be sued personally, on a judg- ment recovered by a creditor of the testator, against him as executor. Jenkins v. Wood, 140 66. 107. The bond does not affect his liability as executor, and is collateral to that liability, to secure its enforcement. Jenkins v. Wood, 140 66. See, also, Jones v. Richardson, (5 Met.) 46 247; Holden v. Fletcher, (6 C.) 60 235; Colwell v. Alger, (5 G.) 71 67; Troy Nat. Bk. v. Stanton, 116 435; Jenkins v. Wood, 134 115. 108. Such a bond, under the R. S., did not render the executor liable upon his testator's covenant of warranty, if the suit was not com- menced within 4 years after it was given, although the breach did not occur till after the 4 years. Holden », Fletcher, (6 C.) 60 235. 554 EXECUTOE, ETC., II, (3). 109. Where one of two executors gives separ- ately the ordinary official bond, he is not liable for a loss without his fault by a co-executor; and a joint receipt, or a joint release of a mort- gage, is only presumptive evidence that both had the money. McKim s>. Aulbach, 130 481. 110 Where, however, two or more executors give a joint and several bond for faithful ad- ministration, both are responsible for the acts of either Brazier v. Clark, (5 P.) 22 96; New- comb v Williams, (9 Met.) 50 525; Ames v. Armstrong, 106 15. 111. But if one dies, and the other afterwards commits waste, oi fails to pay over a legacy, and the sureties of the survivor are compelled to pay, they have no remedy over against the representatives of the decedent. Brazier v. Clark, (5 P.) 22 96; Towne ■a. Ammidown, (20 P.) 37 535. 113. The sureties are liable for any default, in not accounting for assets received, either before or after the execution of the bond. Choate v. Arrington, 116 552; Stet- son e, Moulton, 140 597. See, also, under the statute of 1783, Dawes «. Edes, 13 177. 113. If one surety is discharged, and a new bond is given with a new surety, the latter is liable for property which had previously come to the executor's hands, for which he failed to account. Qu., whether he has any remedy in equity upon the first bond. Choate » Arrington, 116 552. 114. Where sureties are discharged and a new bond given, and there has been a breach of the bond before the discharge, caused by a fail- ure to account, the sureties in the first bond are not liable for the full value of the property, if there has been no actual misappropriation of it, but only for damages caused by the delay, such as interest. McKim v. Bartlett, 129 226; Mc- Kim *>. Blake, 132 343. 115. Sureties on the general bond of an executor are not liable for his defaults, in ap- plying the proceeds of re.il property sold under a license, where he has given a separate bond for that purpose. Robinson t>. Millard, 133 236. See Baylies v. Chace, (1 P.) 18 230, contra. 116 Or where the real property is sold by him under the authority of the will. ' White v. Ditson, 140 351. 117. The failure of an executor to file an inventory, within the time prescribed by law, is but a technical breach of the bond, and is cured by filing it before suit on the bond. McKim v. Harwood, 129 75; Mc- Kim v Bartlett, 129 226. See, also, Loring » Kendall, (1 G ) 67 305. 118 Or where in fact no assets came to his hands. Walker e. Hall, (1 P.) 18 20. 119. The failure to pay the widow an allow- ance, as directed by the probate court, is a breach of an administrator's bond, and in an action upon it, the decree cannot be attacked on the merits. Choate v. Jacobs, 136 297. 120. And his failure to pay the heirs rents received by him, is a breach of his bond, hut not until a decree. Choate v. Jacobs, 136 297. See, also, Stearns®. Stearns, (1 P.) 18 157; Newcomb ». Stebbins, (9 Met.) 50 540; Palmer v. Palmer, (13 G.) 79 326- Alden v. Stebbins, 99 616; Almy v. Crapo, lOO 218; Towle v. Swasey, 106 100; Choate e. Arrington, 116 552; Brooks v. Jackson, 125 307. 121. The following do not constitute breaches of a general executor's or administrator's bond, for which sureties are liable: An omission to comply with a decree of the probate court, unless some injury has accrued; or where the decree was without jurisdiction. Dawes v. Head, (3 P.) 20 128; Han- cock v. Hubbard, (19 P.) 36 167. An omission to pay a judgment rendered by default, in an action commenced more than two years after filing the bond. Robinson ®. Hodge, 117 222. Proceedings under ancillary letters, issued in another state, except where money is received there from a debtor residing here. Hooker v. Olmstead, (6 P.) 23 481. Neglect to apply for leave to sell real prop- erty, after the personalty is exhausted. Freeman v. Anderson, 1 1 190. Neglect to account for a sum received as a gratuity for the heirs, from one against whom a claim was made, which was not just. Hooker ». Bancroft, (4 P.) 21 50. Defending an action, at the request of heirs and legatees, in which he was beaten. Brazier v. Clark, (5 P.) 22 96. 122. The following constitute breaches of a general executor's or administrator's bond, for which sureties are liable: Neglect to settle the account of an insolvent estate, within the time fixed by law. Cony ». Williams, 9 114 Failure to sell land as directed in the will, or to invest funds, so as to raise an income given by the will. Prescott v. Pitts, 9 376; Hall v. Gush- ing, (9 P.) 26 395. Failure to appropriate, to the payment of debts, money paid to him for that purpose by the owners of real property liable to be sold, so as to avoid a sale. Fay v. Taylor, (2 G.) 68 154. Neglect to pay a judgment against him, be- fore he represented the estate insolvent, al- though it was in fact insolvent. Newcomb v. Goss, (1 Met.) 42 333. Neglect to pay a legacy given to an infant, where the executor is afeo guardian for the infant, by crediting himself as executor with the legacy, and charging himself therewith as guardian. Conkey «. Dickinson, (13 Met.) 54 51. Obtaining a license to sell real property for payment of debts and legacies, where, in his petition, he failed to include a debt due from EXECUTOK, ETC., II, (3), (4). 555 Wmself to the estate, -which would have ren- dered the sale unnecessary. Chapin v. Waters, 110 195. 123 The allowance to an administrator with the will annexed, in his first account, of a sum -retained" to pay legacies, and in his second amount of " sundry payments made, as stated to the last account," which covered the sums so "retained," although with the legatees, con- sent does not discharge the obligation of the bond to pay the legacies Fay v. Taylor, (2 G.) 68 154. 124 Where an administrator has been licensed to sell more of the real property, than is neces- sary to pay debts, and has given a special bond under the B. S. to account for the surplus, an action will lie for a neglect to render such an account in a reasonable time, although he has not been cited to do so. Bennett *,. Overing, (16 G.) 82 267. 125. Where, in such a case, the administrator is also guardian for the heirs, and has expended the s rplus for their maintenance, neglecting to make the proper charges and credits, his special bond as administrator is liable for the surplus, less such amounts as may be allowed him in the settlement of his guardian's account, for which purpose a stay will be granted after iudanent for the penalty. Bennetts. Overing, (16 G.) 82 267. 126. For a peculiar case, where the devisees of a surety in an executor's bond, were held to be liable for the failure of the executor to pay an annuity, given in a will, of which the testator was an executor, and as such had given bond to pay debts and legacies, see Brooks v. Rice, 131 408. cited, ante, art. 11. (4.) Action on the bond, 127. Leave to prosecute the bond can be granted by the judge of probate only by a writ- Fay d. Rogers, (2 G.) 68 175. Ex parte Jones, (8 P.) 25 121, overruled pro tanto. 128. Neither the administrator nor his sureties are entitled to notice of, or to be heard upon, the application for leave to bring the action, nor can they contest the validity of the order of the court directing it. Richardson*. Oakman, (15 G.) 81 57; Choate v. Jacobs, 136 297. See, also, Fay v. Rogers, (2 G.) 68 175; Richard- son «. Hazelton, lOl 108; Bennett v. Woodman, 1 16 518. 129. Nor can they show that it was not re- traced to writing, till after suit brought Richardson v. Hazelton, 101 108. 130. If the judge's consent is given upon terms of giving a bond of indemnity for costs, me gmng of the bond after suit brought relates back. White ». Stanwood, (4 P.) 21 380. nf r i,'v he order does not decide any question ui liability on the bond, but merely gives the applicant an opportunity to test the question of liability. Richardson *. Oakman, (15 G.) 81 57. 132. A previous demand from the sureties is not necessary to maintain an action for a legacy; but such a demand from the executor is neces- sary. Prescott v. Parker, 14 428; Wood v. Barstow, (10 P.) 27 368. 133. But after judgment, the objection that there was no demand cannot be taken. Conant v. Stratton, 107 474. 134. No demand is necessary to enable a de- visee, whose land has been taken for debt, to •maintain an action upon the executor's bond, as residuary legatee. Paine v. Gill, 13 365. 135. An action does not lie, upon an admin- istrator's general bond, for a distributive share of the estate, until a decree of distribution, al- though the plaintiff is the sole heir. Dawes s>\ Swett, 14 105; Cathaway n. Bowles, 136 54. (See, also, post, VII, (2)0 136. As to the rule under St. 1756, Ch. 55. Dawes v. Swett, 14 105; Robbins Ball, 3 235. 157. In an action for a breach in not duly rendering an account, an inventory and account filed, and proof of the receipt of money by the executor, before giving the bond, are compe- tent evidence to fix the amount of the sureties' liability. Choate v. Arrington, 116 552. 158. In such an action, the burden is upon the executor and his sureties, to account for all property which came to the executors hands, but upon the plaintiff to show damages sus- tained by the breach. Choate «. Arrington, 116 552. 159. As to the rule in assessing damages upon the executor's bond as residuary legatee, for failure to fulfil a legacy for comfortable sup- port, maintenance, and clothing. Conant . "Williams, (9 Met.) 50 525. 175. A refusal to inventory property fraudu- lently conveyed by the decedent, upon request m£S f' and °, Sei t0 Memnify, is a good ITT v ""P ™ 1 . bu t not where the request is made by heirs. Andrews v. Tucker, (7 P ) 24 250- Kichards «. Sweetland, (6 C.) 60 324. ' hi 7 li n e \ ecu * or and residuary legatee, who K™J ^ ondf ° r debts and J legacies may be removed for failure to comply with an order 22' b0 t nd J and after such removal, wn£E£££ nn ? ta taken against him in his representative character, for a debt of the tes- Troy Bk. e. Stanton, 116 435. t0Mo,m f a V dm ^ trator ' who has neglected fte ent^S f - e ^ cltation ' nas not been removed, bond $11 fl^Sment, m an action upon his tion VS. be sus Pf n ded, to enable an applica- "on tor his removal to be made. Bennett e. Russell, (2 A.) 84 537 178. Where almost the whole estate consists of debts due from the executors, and they re- fuse to account for large sums of money received as agents of the testatrix, more than 20 years before her death, these are not sufficient causes for their removal, on the ground that they are unsuitable to discharge the trust. Hussey ®. Coffin, (1 A.) 83 354. 179. The refusal of the administrator to bring- a bill in equity to redeem' land, under a defeas- ance bond, discovered two years after the ad- ministrator's appointment, and after the estate had been represented insolvent, is not a ground for removal of the administrator upon a cred- itor's petition; but a refusal to apply for a license to sell the equity of redemption might be such a ground. Glines v. Weeks, 137 547. III. Inventory; Assets, and summary Pro- ceedings TO DISCOVER THEM. (1,) Inventory; what are assets. ISee, also, Persowal Property; and for rulings- upon questions between the real and personal repre- sentatives, see Fixture, 1.1 180. Formerly an administrator was not re- quired to inventory real property Henshaw v. Blood, 1 35; Prescott v. Tarbell, 1 204. 181. If no property comes to his hands, he is not required to return an inventory or an ac- count. Walker v. Hall, (IP.) 18 20. 182. Only one inventory is required: if prop- erty comes to the administrator's hands after his inventory is returned, he must account for it, but a new or additional inventory is not necessary Hooker v. Bancroft, (4 P.) 21 50. 183. An executor and residuary legatee, who gives bond to pay the debts and legacies, is not required to return and inventory. Thayer «. Winchester, 133 447. See, also, Stebbins v. Smith, (4 P.) 21 97; Clarke «. Tufts, (5 P.) 22 337; Jones v. Richardson, (5 Met.) 46 247; Colwell «. Alger, (5 G.) 71 67. 184. A leasehold estate, although for 999 years, is assets. Ex parte Gay, 5 419. 185. A mortgage before entry is assets. Smith v. Dyer, 16 18; Johnson v. Bartlett, (17 P.) 34 477; Taft a. Stevens, (3 G.) 69 504; Steel v. Steel, (4 A.) 86 417. 186. Monejr, paid to the executor or adminis- trator by heirs or devisees, to avoid a sale of the real property, is assets in his hands. Pay i. Taylor, (2 G.) 68 154, 187. So is money paid him as compensation for land taken for public uses, which had been levied upon by Mm to secure a debt, the time for redeeming which had expired. Phillips v. Rogers, (12 Met.) 53 405. 558 EXECUTOR, ETC., Ill, (1). 188. So are damages for land taken for a public improvement, before the decedent's death. Moore v. Boston, (8 C.) 62 274; Chapin v. Waters, 116 140. 189. But if the land is taken after the dece- dent's death, the damages belong to the heirs, although the administrator had represented the estate insolvent, and afterwards obtained a license to sell the land. Boynton v. Peterborough & S. R. R. (4 C.) 58 467. 190. Money received by the executor for a deed made by the testator, and^ delivered after his death, is assets. Loring ». Cunningham, (9 0.) 63 87. 191. The administrator of a widow, who had orally agreed to sell her dower interest, by joining with the heirs in a conveyance, the land having been bid off at an auction sale, but who died before executing the deed, is not entitled to any of the money paid to the heirs for the purchase. Fletcher ». Carter, (10 C.) 64 81. 192. Interest on the proceeds of real property, sold by the executor or administrator, to pay debts, is assets in his hands. Grout «. Hapgood, (13 P.) 30 159; Jennison v. Hapgood, (14 P.) 31 345. 193. Rents and profits of real property, ac- cruing after the testator's death, are not assets, although the estate is insolvent, and the land is afterwards sold to pay debts. Gibson «. Farley, 16 280; Lobdell s. Hayes, (12 G.) 78 236; Towle e. Swa- sey, 106 100. 194. As to devised real property, see Newcomb v. Stebbins, (9 Met.) 50 540. 195. But under St. 1789, Ch. 11, if the ad- ministrator occupies the real property, with the assent of the heirs, he is bound to account for the income. Stearns v. Stearns, (1 P.) 18 157. 196 Real property, or the rents and profits of real property, in another state, are not assets, as respects either the executor or the heirs. Austin v. Gage, 9 395; Morrill v. Morrill, (1 A.) 83 132. 197. Where a debt to a decedent was secured by a mortgage on land, and the administrator took a conveyance to himself individually, of the equity of redemption, and charged himself with the debt, and settled his accounts accord- ingly, he was concluded from denying his lia- bility, or claiming that the land did not belong to the estate. White v. Starr, (13 P.) 30 380. 198. So where an administrator took land in payment of a debt to the decedent, and received payment therefor, on its being taken for a pub- lic use. ' Phillips «. Rogers, (12 Met.) 53 405. [For additional rulings, respecting the Interest of an executor or administrator in real property, see post, IV.] 199. All the personal estate of a decedent vests in his executor or administrator, including choses in action of all descriptions, and con- tingent as well as absolute interests. Dawes v. Boylston, 9 337; Clapp v Stoughton, (10 P.) 27 468. 200. Until actually accounted for by payment of debts and legacies, an executor or adminis- trator acquires no individual property in goods, by charging himself with the value in his ac- count as settled. Weeks «. Gibbs, 9 74. 201. Corn, or other annual product of the soil, raised by cultivation, and ready to be gathered, is assets, and goes to the executor or administrator. Penhallow ». Dwight, 7 34. 202. So is the right of property in a trade Peabody ». Norfolk,' 98 452. 203. So is an uncollected legacy to the dece- dent. Osgood v. Foster, (5 A.) 87 560. 204. So is money received on a claim due the deceased, more than twenty years after a distri- bution of the estate in insolvency, and a settle- ment of the accounts. White v. Swain, (3 P.) 20 365. 205. So is money collected by the adminis- trator from the principal, where the decedent was surety, and the administrator had paid the debt. Mowry «. Adams, 14 327. 206. So is money received from the United States, under a treaty, for property of the dece- dent, taken by a foreign nation, before his death. Foster v. Fifield, (20 P.) 37 67. 207. So is a quarter's salary, due the deceased at the time of his death, but voted after- wards. Loring v. Cunningham, (9 C.) 63 87. 208. So are bricks made by the decedent, at a leased brickyard, which the lessor had the right to take at a valuation for rent, the lessor's right having ceased at l he lessee's death. Ex parte Wait, (7 P.) 24 100. 209. So is a pension granted to an officer's widow, by act of congress, where she died be- fore the certificate was issued, having disposed of the pension by will. Foot v. Knowles, (4 Met.) 45 386; Slade v. Slade, (11 C.) 65 464. 210. And where it has been paid to her children, the executor can recover it from them. Foot v. Knowles, (4 Met.) 45 386. 211. And where the executor was residuary legatee, and received the pension, the children are not entitled to any share of it. Slade v. Slade, (11 C.) 65 464. 212. Property belonging to another, in the hands of the deceased, which can be distin- guished from his own property in any way, is not assets; but if it cannot be so distinguished, it is assets, and the owner must come in as a creditor. Johnson v. Ames, (11 P.) 28 173. EXECUTOR, ETC., Ill, (1), (2). 559 213 So if an officer takes a note in his own name to satisfy an execution, his executor can- not hold it or the proceeds, as assets. Childs v. Jordan, 106 321. 214. If one assigns a chose in action, while attached by a trustee process against him, and the attachment is dissolved by his death, the note soes to the assignee, not the administrator. Coverdale J). Aldrich, (19 P.) 36 391. 215. Where a sum is paid to an administrator in compromise of a suit, as a gratuity to the heirs, where there was no just claim, his failure to account therefor to the heirs is not a breach of his bond. Hooker v. Bancroft, (4 P.) 21 50. 216. If the assignee of a chose in action, not negotiable, becomes the administrator of the assignor, and sues and recovers the same as such, he is not accountable therefor. Dawes v. Boylston, 9 337 217. If a devisee, who is also executor, takes notes to himself as executor, for the rent, he does not thereby make himself accountable for them. Newcomb v. Stebbins, (9 Met.) 50 540. 218. An executor or administrator is bound to pay in full his own debt to the deceased, unless it is given him in the will; and his sure- ties are liable therefor. Stevens v. Gaylord, 11 256; Winship «. Bass, 12 199; Ipswich M. Co. v. Story, (5 Met.) 46 310. 219. Whatever money an executor or admin- istrator receives as such, rightly or otherwise, he must account for, unless he can show a legal liability to pay it over to another. Jennison v. Hapgood, (10 P.) 27 77. [For rulings respecting a policy of insurance upon the decedent's life see Insurance, IV, (3.)] 220. An administrator, as the representative of creditors, may recover personal property, or the proceeds of personal property, transferred by the deceased in fraud of creditors; and in such a case he holds as assets such property or proceeds, although recovered after the expira- tion of the four years, during which he was liable to be sued. Martin n. Root, 17 222; Gibbens ». Peeler, (8 P.) 25 254; Holland v. Cruft, (20 P.) 37 321; "Wall v. Provident Inst'n, etc., (6 A.) 88 320; Parker n. 127 28. 221. In such a case, if the creditors' demands are baTred by the statute, such property is new Welsh v. Welsh, 105 229. 222. It makes no difference that the entire recovery is not needed for debts, and part goes to the heirs or next of kin. Martin «. Root, 17 222. 223. But an administrator cannot recover a teposit in a savings bank, made by the dece- oent in trust for a third person, without proof Mat it is needed to pay debts. *aL v - Provi dent Inst'n, etc., (6 A.) So 320. , J 24, ^ to wner e the discovery of a right to iraeem property is deemed new assets (fiscov- Glines «. Weeks, 137 547. (2.) Allowances to a widow. 225. The judge of probate may allow the widow the entire personal estate, unless it is so great as to make the allowance extravagant. Brazer v. Dean, 15 183; Kingsbury v. Wilmarth, (2 A.) 84 310. 226. Where an allowance is made, whatever part the estate is included in it ceases to be JASSGbS Bush ii. Clark, 127 111. 227. The rule as to an allowance applies, whether the estate came to the decedent as sur- viving member of a partnership, or had been his separate property, and that although the assets are insufficient to pay the partnership creditors. Bush v. Clark, 127 111. 228. No notice is required to authorize the judge to make an allowance, except where special administration is granted. Wright v. Wright, (13 A.) 95 207. 229. The judge of probate has no authority to revoke a decree making an allowance to a widow, and pass a new decree for a smaller sum. Pettee v. Wilmarth, (5 A.) 87 144. 230. The allowance takes precedence of debts, and expenses of administration, and of the last sickness and funeral; and if the articles are sold by her consent, she is entitled to the proceeds. Kingsbury n. Wilmarth, (2 A.) 84 310; Bush ii. Clark, 127 111. 231. An allowance may be made to the widow, although she has accepted a provision in the will in lieu of dower, and although the executor, as residuary legatee, has given a bond for debts and legacies, after she Hied her ap- proval of the will. Williams «. Williams, (5 G.) 71 24. 232. If the personal estate has been exhausted, and real property is sold for the payment of debts, the widow's allowance cannot be made out of the proceeds of the sale. Hale v. Hale, (1 G.) 67 518. 233. The allowance may be made, although, by the marriage contract, the widow released all her claim upon her husband's estate. Blackinton «. Blackinton, 110 461. 234. The object of the allowance is to furnish the widow a temporary support, and it is to be restricted to such an amount, as is required by the situation of her family, for their reasonable comfort. Washburn v. Washburn, (10 P.) 27 374. 235. Under St. 1805, Ch. 90. § 2, if the estate was solvent, and the widow waived her rights under the will, she was not entitled to an allow- ance. Ex parte Currier, (3 P.) 20 375. 236. Under St. 1838, Ch. 145, the allowance did not confer upon the widow an absolute or contingent right of property, which survived her; and if an appeal was taken from the decree, and she died before it was entered, all further proceedings were stayed. Adams «. Adams, (10 Met.) 51 170. (As to the present rule, see post, arts 243, 243.] 560 EXECUTOK, ETC., Ill, (2), (3); IV, (1). 237 Under the same statute, the judge might make a second allowance to the widow, if the personal property was not exhausted, but not otherwise; and after she had received the first allowance, she could not appeal from the decree allowing it. Hale v. Hale, (1 G.) 67 518. 238. Under the same statute, a widow who had lived several years separate from her hus- band, and had considerable property secured to her separate use, and no chiliren, was not entitled to an allowance. Hollenbeck v. Pixley, (3 a.) 69 521. 239 As to the amounts allowed widows in particular cases. Washburn o. Washburn, (10 P.) 27 374. Crane v. Crane, (17 P.) 34 422; Whiting v. Whiting, cited, (1 G.) 67 520. Allen v. Allen, 117 27; Slack v. Slack, 123 443. 240. If either the widow, or a person inter- ested, is dissatisfied with the allowance, the remedy is by appeal; and the decree cannot be attacked collaterally, however disproportionate to the estate the allowance may seem. Litchfield v. Cud worth, (15 P.) 32 23; Ward v. Ward, (15 P.) 32 511. As to reviewing the decree on appeal, see, also, Washburn ». Washburn, (10 P.) 27 374; Allen v. Allen, 117 27; Slack v. Slack, 123 443. 241. At the hearing of the appeal, evidence that the assets are insufficient to pay the allow- ance is inadmissibte, unless that fact is stated as a ground of the appeal. Slack v. Slack, 123 443. 242 Under the existing statute, the decree, if not appealed from, establishes conclusively the widow's right to select such articles from the inventory as she prefers, to the amount speci- fied, and to demand the same from the executor or administrator; and her claim may be en- forced by action against him. Drew ». Gordon, (13 A.) 95 120. 243. If she exercises such right in her life time, it survives to her legal representatives, if not exercised, it does not survive. Drew ». Gordon, (13 A.) 95 120 (3.) Summary proceedings to discover assets. 244. A bill in equity will not lie to discover assets of a decedent, as there is a sufficient remedy by proceedings in the probate court. R S., Ch. 65, § 7; G. S., Ch. 96, § 6; P. S., Ch 133. § 1 Wilson v. Leishman, (12 Met.) 53 316. 245. Held, that St. 1793, Ch. 32, § 12, ex- tends to proceedings against an executor or ad- ministrator. Boston v. Boylston, 4 318; Higbee v. Bacon, (7 P.) 24 14; Higbee v. Bacon, (8 P.) 25 484. See, also, Saxton v. Chamberlain, (6 P.) 23 432. 246. Where, in a complaint under the statute, the complainant describes himself as "admin- istrator and creditor," and it appears that he is not entitled to act as administrator, that word cannot be rejected as surplusage, and the pro- ceedings will be reversed. Arnold v. Sabin, (4 C.) 58 46. 247. The respondent is not a witness, but a party, entitled to appeal. No supporting and no opposing testimony is received. The dis- covery is not only the purpose, but the end of the proceedings. The respondent may be per- mitted to appear, and be assisted by counsel. Martin v. Clapp. 99 470. TV. Real Property. CD General principles. 248. Lands of a decedent pass to his heirs or devisees, subject to a claim upon them for pay- ment of debts, if the personalty is insufficient for that purpose. In the absence of any direc- tion in a will, the executor or administrator, has no interest or rights in such lands, but a naked authority to sell them, upon obtaining a license. Drinkwater t>. Drinkwater, 4 354; Willard v. Nason, 5 240; Hathaway v. Valentine, 14 500; Goddard v. God- dard, cited in 14 500; Gibson «. Parley, 16 280. 249. One, having a bond for a deed, and having paid the consideration, may devise the land; and if the executor, having possession of the bond, takes a deed to himself as executor, he holds as a mere trustee for the heirs. Brooks v. Whitney, (11 Met.) 52 413. 250. An executor or administrator cannot therefore maintain a petition for partition, in order to sell the decedent's portion, although the estate is insolvent. Nason ». Willard, 2 478. 251. And where, pending a petition for par- tition, a party dies, it is erroneous to admit his administrator to prosecute. Richards v. Richards, 136 126. 252. Although an executor or administrator has no right to enter upon and occupy the land of the deceased, he may do so by consent, ex- press or implied, of the heirs, accounting for the rents and profits. See G. S., Ch. 98, § 8; P. S., Ch. 144, § 5. Gibson v. Farley, 16 280; Stearns v. Stearns, (1 P.) 18 157. 253. And he may levy an execution upon land, in which case he holds it in trust for those entitled to the money on the judgment. See G. S., Ch. 96, § 11; P. S., Ch. 133, § 8. He may recover such land in a real action, declaring upon his seisin as administrator. Boylston v. Carver, 4 598; Willard v. Nason, 5 240. 254. And he may foreclose a mortgage upon land given to the decedent, in the same manner as the decedent might have done in his lifetime. If it is not redeemed, he holds the land intrust for whomsoever would have been entitled to the money, had it been redeemed. See Q. S., Ch. 96, §§ 9, 10; P. S., Ch. 133, §§ 6, 7. EXECUTOR, ETC., IV, (1), (2), (3). 561 Willard e. Nason, 5 240; Smith v ' : Dver 16 18; Dewey 1\ Van Dcusen, (4 P) 31 19; Johnson o. Bartlett, (17 P.) 34 477; Richardson o. Hildreth, (8 C.) 62 226, Taft v. Stevens, (3 G.) 69 504. 265. The administrator ot the mortgagee is the proper party to foreclose a mortgage, for the support of the mortgagee and his wife, during their lives, although the widow is living, and does not appear. Marsh v. Austin, (1 A.) 83 235. 256. Where the administrator of a surety levied upon the principal's land for indemnity, hy reason of payment of the debt by a sale of the decedent's land, he holds for the benefit of the heir. Hancock v. Minot, (8 P.) 25 29. 257. The administrator of a mortgagee, who has obtained judgment and possession for fore- closure, may obtain trespass quare clcmsum against an heir of the mortgagee. Palmeru Stevens, (11 C.) 65 147 258. An administrator may maintain trespass pare clausum for an injury to land in the de- cedent's life time. Wilbur©. 6ilmo:e, (21 P.) 38 250. 259. So where executors are directed to man- age the estate, and dispose of lands, etc., for the benefit of devisees, they have an interest, which will enable them to maintain trespass quare demmm, for an illegal'entry on the land. Dascomb v. Davis, (5" Met.) 46 335. 260. Where the owner of land dies, after it has been injured by the discontinuance of a way, his executor or administrator is the proper party to bring a petition for damages. Webster a. Lowell, 139 172. [See, also, Highway; HI, (7); IV, (2).] (2.) Devise of power of sale. ^[See, , also, Dbvisb and Bequest, III; Power, 261. Where a testator appoints the executor trustee, and directs him as such to make pay- ments, to an amount exceeding the personal property, if such appears to be the intent of the Ml, the real property goes to him, although it is given over. Walker v. Whiting, (23 P.) 40 313. 262. Where a will directs real property' to be sold, and that the proceeds remain in the hands ra the executors for certain purposes, this gives the executors, by implication, a power to sell. Hale v. Hale, 137 168. 263. A direction in a will that a sale be made witninayear, is not imperative, but directory; ana the executors may sell after the year, be- ag^ responsible for the consequences of the Hale t. Hale, 137 168. t»™ V n ^ an au taority to sell land for the 5J"" 1 *, the executor may sell, not- WManding the death, alienation, or disseisin, mod mt % £* he ma y not bo able to give a good Utile, if the testator was disseized. hSTio^' 3 533 ; poor *- Rob - Vol. I— ft 265. A private sale by an executor, under a power in the will, to a relative, for less than the value, to favor him, to the injury of those inter- ested, is fraudulent and voidable. Oberlin College v. Fowler, (10 A.) 93 545. [See, also, poet, arts. 383, 324; and Trustee, II, (2); II, (3 ; ; 11,(4] 266. An executor, authorized to sell by direc- tion of the residuary devisee, cannot maintain an action for the price of standing wood sold by him, without proving the direction of the residuary devisee, or a license to sell, given by the probate court. Richardson v. Crooker, (7 G.) 73 190. 267. Where a testator, by his will, devises certain real property to his children and grand- children, with certa n directions, and gives the executors power to sell the shares of those under age; and by a codicil, gives them absolute power to sell, and "to avoid the expense and labor of a partition," devises the real property to them, in trust, to sell and apply the proceeds among the children and grandchildren, according to the interests " which I have devised to them in my original will;" the effect of the codicil is to vest the title in the executors, and a partition cannot be granted, although all the parties in interest desire it. Gerard v. Buckley, 137 475. 268. "Where land is mortgaged to A, with power of sale, and he holds one half in his own right, and one half as administrator, a deed in execution of the power conveys a good title, although he does not describe himself as admin- Look v. Kenney, 128 284. (3.) Sale by license to pay debts, legacies, or expenses. 269. An administrator, who has obtained a license to sell real property, may sell, although the land is in possession of the heir's grantee or disseisor. Drinkwater v. Drinkwater, 4 354; Willard v. Nason, 5 240. 270. Or a fraudulent grantee of the intestate. Drinkwater v. Drinkwater, 4 354. 271. Or a grantee of the decedent, without consideration and by way of gift, if the dece- dent thereby rendered himself unable to pay his debts. Norton v. Norton, (5 C.) 59 524. 272. He cannot be restrained from selling by bill in equity, alleging doubts as to the con- struction of the will and the title to the land, which will prevent the property from bringing its real value. Sprague v. West, 127 471. 273. An administrator, having such a license, may maintain a bill in equity to redeem or dis- charge a mortgage on the land. Mason*. Daly, 117 403. 274. He may maintain a writ of entry to re. cover the land, if it has been conveyed by the decedent in fraud of creditors. Tenney». Poor, (14 G.) 80 500. 562 EXECUTOR, ETC., IV, (3). , 275. Where he has obtained a license to sell so much land, conveyed without consideration by the decedent, as is necessary to raise the sum stated in the license to pay debts, and thereupon he -recovers the land by writ of entry; the judg meat vests in him so much as is necessary to sell foi the purpose, and the residue remains the tenant's property, unless the conveyance is tainted with actual fraud. Norton v. Norton, (5 C.) 59 524. 276. Before the G. S a license was necessary to sell a mortgage. Ms parte Blair, (13 Met.) 54 126. 277. As to the sale of a reversion or rernainder, before the G 8 Whitney v. Whitney, 14 88; Leverett v Armstrong, 15 26; Kempton v. Swift \2 Met.) 43 70; Bancroft v. An- drews, (6 C ) 60 493. 278 Land devised to the testator's daughter, with othei property .bequeathed to her, with directions that, in case of death before her mar- riage oi majority, all the property given her shall be divided into certain pecuniary legacies, may be sold by the executor, by license from the probate court, to pay the legacies, if the daughter dies i.nder age and unmarried. Gibbens v. Curtis, (8 G.) 74 392. 279. Where land was placed in ths hands of a trustee, to be conveyed to A's appointee, or, on a failure of her appointment, to her heirs at law, and sue died without an appointment, it cannot be sold under a license, to pay debts. Coverdale v. Aldrich, (19 P ) 36 391. 280. An rxecutor who has given bond as residuary legatee, may sell the land without license Clarke v Tufts, (5 P.) 22 337. 281 A license to such an executor is without jurisdiction. Thayer v. Winchester, 133 447. 282. Where the will of a married woman, after giving certain legacies, devised and be- queathed the residue of her property to her husband, and appointed him her executor; and the only property left was a homestead estate, which he occupied till his death, eight years after his wife's, and assumed to dispose of by will; it was held, that the probate court rightly granted a license to the administrator of the wife, with the will annexed, to sell the prop- erty for payment of the legacies, which the husband had not paid. Smith v Wells, 134 11. 283 As to the jurisdiction to grant a license to sell real property under former statutes- St 1783, Ch 32, supreme court Ex parte Allen, 15 58. Under the provincial law, St. 1696, Ch. 10. Leverett® Harris, 7 292. No sale allowed for expenses, before St. 1818, Ch. 112. Dean v. Dean, 3 258; Drinkwater v. Drinkwatei, 4 ' 354. See, however, Brazer v. Dean, 15 183. 284 The lapse of the time, fixed by the special statute of limitations applicable to executors and administrators, without an action having been commenced against the adminis- trator, will, in general, preclude his obtaining a license, or render void a license' obtained. Scott v. Hancock, 13 162; Ex parte Allen, 15 58; Wellman v. Lawrence, '15 326: Thompson®. Brown, 16 172- Heath ®. Wells, (5 P.) 22 140; Thayer ». Hollis, (3 Met.) 44 369; Tarbell i>. Parker, 106 317. 285. And the probate court has no jurisdic- tion to grant a license, unless there are existing debts, capable of being enforced against the administrator, of which the license is not con- clusive evidence. Heath v. Wells, (5 P.) 22 140; Lam- son v. Schutt, (4 A.) 86 359, Aiken v. Morse, 104 277; Tarbell «. Parker, 106 347. 286. An administrator may, however, obtain a license after four years have elapsed since his appointment, where he has advanced his own money to pay debts, and the situation of the estate remains unchanged; or where other suffi- cient reason is shown. Ex parte Richmond, (2 P.) 19 567; Hudson v. Hulbert, (15 P.) 32 423; Palmer®. Palmer, (13 G.) 79 326. See, also, Ex parte Allen, 15 38; Cooper v. Robinson, (2 C.) 56 184. 287. If the estate is represented insolvent, and commissioners are appointed, the real property may rightly be ordered to be sold, after two years from the granting of adminis- tration, for the payment of debts proved within the two years. Edmunds «. Rockwell, 125 363. 288. The administrator's averment in his peti- tion that a debt is due, and his oral admission of the fact, is not evidence to establish the debt, on the hearing of the petition. Ohamberlin v. Chamberlin, (4 A.) 86 184. _ 289. It is not necessary to the validity of the license, that the amount of the debts should have been previously ascertaned by judgment against the executor, or by commission of in- solvency, or that his accounts should have been settled. Palmer v. Palmer, (13 G.) 79 326; Tenney v. Poor, (14 G.) 80 500. 290. But the condition of the bond given under the statute, by persons interested in the land, to prevent the sale, is not broken, until it has been ascertained, by a settlement of accounts in tire probate court, that debts are due, and the personalty is insufficient. Studley ». Josselyn, (5 A.) 87 118. 291 The occupation of the land by one of the administrators, who is also an heir, without paying or charging himself with rent, is no ob- jection to granting the license. Palmer ®. Palmer, (13 G.) 79 326. 292. A license to sell real property of a de- ceased nonresident to pay debts due here, will not be granted, if it appears that he has pro- vided a fund for the payment of his debts, at the place of his domicil, until creditors have made an unsuccessful effort to obtain payment therefrom. Livermore v. Haven, (23 P.) 40 116. 293. If there are two or more executors or administrators, all must join in the petition; EXECUTOE, ETC., IV, (3). 563 and a license granted to one only, on his peti- tion, is void. , M „ Hannum v. Day, 105 33. 294. Under former statutes, the petition need not have set forth the value. Yeomans «. Brown, (8 Met.) 49 51. 295. If the petition asks leave to sell the ■whole, the court may grant a license to sell the whole. Sewall v. Raymond, (7 Met.) 48 454. 296. A license, authorizing the sale of "so much' as will raise" a certain sum, suffices. Yeomans v Brown, (8 Met.) 49 51; Norton «. Norton, (5 C.) 59 524. 297. And the sum may be larger than that ■which the petition stated to be necessary. Tenney v. Poor, (14 G.) 80 500. 298. A decree, unappealed from, granting a license to sell all the real property of the deced ent, upon the petition of the administrator, representing that a sale of some is necessary, and that a partial sale will be injurious, is con- clusive upon the latter question. Allen v. Ashley School Trustees, 102 262. 299. Where the petition asks for a license to sell a specific portion of the. land, and notice is published to show cause why the whole should not he sold, a license to sell the whole is void. Verry v. McClellan, (6 G ) 72 535. 300. As to the notice required under St. 1783, Ch. 32, § 1. In re Rulluff, 1 240? Sewall v. Ray- mond, (7 Met.) 48 454. 301. One in possession, wrongfully and by disseisin, is not entitled to notice of presenting Jhe petition. Yeomans v. Brown, (8 Met.) 49 51. 302. Qu,., whether tenants under a fraudulent conveyance are entitled to notice. Yeomans v. Brown, (8 Met.) 49 51 303. The wife of a devisee is not entitled to notice. Harrington v. Harrington, (13 G.) 79 Olu. * 304. Before the time of notice was prescribed by statute, the court of probate judged of its sufficiency Thomas v. Le Baron, (8 Met.) 49 355. 305. The sale is not invalid, because guardians . Nightingale, (9 A.) 91 149. 363. But not unless the statutory proceedings are strictly followed. Bascom v. Butterfield, (1 Met.) 42 536. 364. And under the R. S., not if the payment was made within a year after giving notice of his appointment. Colegrove v. Robinson, (11 Met.) 52 238. 365. And not from a surety, who did not re- quest payment. Paine v. Drury, (19 P.) 36 400. 366. And where a debtor of the testator, at the request of the executor, bought the testa- tor's note, and gave it to the executor in part payment, the executor cannot recover the dif- ference between the note and the dividend. Austin v. Henshaw, (7 P.) 24 46; as explained in Heard v. Drake, (4 G.) 70 514. 367. An executor, who has resigned, cannot recover a debt due him from the testator, by- action against the administrator with the will annexed. „„ „_„ Prentice » Dehon, (10 A.) 92 353. 368. An executor, who pays part of a legacy to one who is the guardian and father of an in- fant legatee, who dies before attaining majority, whereby, by the terms of the will, the legacy lapses, may recover _ it back from the father in his individual capacity. Lawrence v. Carter, (16 P.) 33 \A. 369. Where a deceased citizen of Massachu- setts left a widow and child, and property here and in Wisconsin, and administration was taken out in each state, and the Wisconsin ad- ministrator transferred the proceeds of the prop- erty there to the guardian here, of the decedent's only child, the widow having since died, and the 566 EXECUTOE, ETC., V, (1), (2). estates of both parents proved to be insolvent; the administrator of the father was allowed to main- tain a bill to compel the guardian to apply the amount received by him to the payment of the father's debts, and the distributive share of the widow. Sheldon a. Kirkland, (8 G.) 74 531. 370. The administrator of a deceased partner may maintain a bill in equity against the sur- vivor, for a sale of letters patent belonging to the partnership, and an account of profits re- ceived since the dissolution. Freeman v Freeman, 136 260. 371. An administrator cannot, more than two years after his appointment, maintain an action against the widow for conversion of personal property given to her by her husband, upon proof that the estate is insolvent, it not appear- ing that it had been so represented, or that a creditor had sued Fellows v. Smith, 130 378. [As to an action by an executor or administrator, to recover damages tor causing the decedent's death oy negligence, see the references under the title Death.! (2.) Duties and liabilities. [See, also. Statute of Frauds. II, (I); and the titles of the different actions and causes of action.] 372. If two executors, knowing that they are such, neglect to present the will for probate within the time fixed by the statute, they are jointly liable to the penalty; if one so neglects, and the other does not, the former alone is liable. Hill v. Davis, 4 137. 373. An administrator is not liable upon the deceased's written and sealed instrument, di- recting his administrator to pay a certain sum, to a person named therein. Stone v. Gerrish, (1 A.) 83 175. 374. The administrator of a minister, who has agreed with an organist for a certain time at a specified price, is liable only for the time of the organist's actual service, if the church is closed after his deaih. Harrison «. Conlan, (10 A.) 92 85 [As to a contract of the decedent whic'i terminates by his death, see, also, Contract, VI, (2).\ 375. But an agreement upon a valuable con- sideration, to pay a certain sum at the promi- sor's death, may be enforced against his Parker v. Coburn, (10 A.) 92 82 376. An administrator who warrants the title, upon a sale of either real or personal property, is liable individully, although he professed to undertake as administrator. Sumner v. Williams, 8 162. For a parallel case as to a guardian, see Whiting «. Dewey, (15 P.) 32 428 377. The administrator of a lessee, who does not quit and surrender the premises, imme- diately upon his appointment, or upon a notice to quit, but uses them, and claims rent from an under tenant, is liable for the value of the use, till his estate was terminated by the notice to quit. Inches v. Dickinson, (2 A.) 84 71. See, also, Montague v. Smith, 13 396! 378. An executor, who, after foreclosure of a mortgage, conveys the land without license, is not liable upon a covenant in the deed of good right to convey. Baldwin b. Timmins, (3 G.) 69 302. 379. An executor is not liable, personally or in his representative capacity, for services bene- fkial to the estate, performed without his assent, under a contract with another executor, or a special administrator. Luscomb v. Ballard, (5 G.) 7 1 403. 880 An administrator is not liable for board of the decedent, furnished by a relative for affection only, although he has promised to pay therefor. Shepherd v Young, (8 G.) 74 152. 381. An auctioneer, employed to sell the goods of the decedent, cannot bind the executor by a warranty of their condition. Blood « French, (9 G.) 75 197. 382. St 1841, Ch. 55, relating to actions of waste, and actions on the case in the nature of waste, did not include an action against an executor or administrator for wasteful manage- ment of the estate. Wilbur v Wilbur, (7 Met.) 48 249. 383 For cases where an action of waste would lie against an executor or administrator, see Parsons v Mills, 2 80; Mitchel v. Lunt, 4 654; Brazier v. Clark, (5 P.) 22 96, Dawes v. Winship, (5 P.) 22 97, note. 384. An action does not lie against an admin- istrator for the expense of a monument to the deceased, erected at the widow's request, and St. 1878, Ch. 228; P. S., Ch. 144, § 6, does not apply. Sweeney v. Muldoon, 139 304. 385. Where land was devised for life to the testator's widow, and the heirs joined with her in a conveyance, upon her promise to keep the proceeds on the • same terms as the land, the heirs can maintain an action against her admin- istrator for the proceeds. Rich v. Rich, 113 197. 386. The executor of a deceased joint debtor cannot be sued jointly with the survivor. Cochrane v. Cushing,- 124 219. [For other rulings as to the liability of the execu- tor of a surviving joint debtor, and the effect of the death of a party, pending the action, see Abate- ment, I, (1); JointXiabiiiIty, I; Partnership, I, MM 387. G. S . Ch 97, § 28; P. S., Ch. 136, § 8, relates to the remedy only, and in an action against the executor, the plaintiff must prove that the original liability was joint, and the survivor and the deceased were liable. Cowley v. Patch, 120 137. [As to charging an executor or administrator under a trustee process, see Trustee Process, I, (1); and ant°, art. 342. J 388. An action does not lie against an admin- istrator for a disributive share, before a decree EXECUTOR, ETC., V, (2), (3). 567 of distribution, although the plaintiff claims to be the sole heir, and has been paid in part Cathaway v. Bowles, 136 54. [As to an action for a legacy, see Devise and Bequest, VI.] 389. An action against an executor or admin- istrator, for funeral expenses, is one which would not be affected by the insolvency of the estate, and so may be brought within a year after publication of notice of his appointment Studley «. Willis,' 184 155. See, also, Troy National Bk. e. Stanton, 116 435. 390. The judgment in such an action is de }. Ansart, 3 319; Talmage v. Chapel, 16 71. 401. He may sue in his individual or repre- sentative character, for money paid by himself, on a demand, for which the deceased was t^e defendant's surety. Mowry v Adams, 14 327, Williams v. Moore, (9 P.) 26 432. 402 An administrator de bonis non, suing on a demand accruing to the original adminis- trator, may lay the promise as made to the latter or himself. Sullivan v. Holker, 15 374. 403. Where the plaintiff sues in his own right, and fails on the merits, he cannot convert the action by any amendment into a suit by him as administrator. Mason v Lord, (20 P.) 37 447. 404. If two parties to a written contract, who are severally liable, are joined as defendants, and one of them dies, his executor may be summoned in. Colt v. Learned, 133 409. 405 The administrator of a deceased plaintiff may move for a dismissal, if the cause of action does not survive. Nettleton v. Dinehart, (5 C.) 59 543. For other rulings as to the effect of the death of a party, see Abatement, I, (1). And for rulings under former statutes now superseded, see Hunt a. Whitney, 4 620; Terry v. Briggs, (12 C.) 66 319; Brown v. Pendergast,, (7 A.) 89 427. 406. In trespass, an averment that the de- fendant took, etc., certain chattels "of the plaintiff's intestate " sufficiently avers property, and means that he took them in the decedent's lifetime. Stanley v. Gaylord, (10 Met.) 51 82. 407. In a writ of entry by an executor, to foreclose a mortgage to his testator, an aver- ment of the demandant's representative charac- ter is not essential; and a description of him as "administrator," instead of "executor," is not available as a defence. Sheldon v Smith, 97 34. Langdona. Potter, 11 313, distinguished. 408 It is not necessary that a declaration by an administrator should make profert of his letters. Langdon •». Potter, 1 1 213. 409. In assumpsit for contribution by a co- surety against an executor, the facts must be specially set forth. Bachelder v. Fisk, 17 464, 410. In a declaration against the administrator of an insolvent estate, upon a demand not yet due, the declaration must set forth that it was laid before the commissioners and rejected, etc. Eaton v. Whitaker. (6 P.) 23 465. 411. In an action against an administrator, the decree granting letters is admissible, without further proof of death. Day v. Floyd, 130 488. 568 EXECUTOK, ETC., V, (3); VI 412. In an action against an executor or ad- ministrator, a plea that he has been removed since action brought, is good. Jewett v. Jewett, 5 275; Troy Nat. Bk. v. Stanton, 1 16 435. 413. St.. 1852, Ch. 294, § 1, reducing the time of bringing suits against executors and admin- istrators from four to two years, did not apply where the bond had previously been given. King «. Tirrell, (2 G.) 68 231; Hil- dreth v. Marshall, (7 G.) 73 167. 414. Where there is yet real estate undis- posed of, a plea to an action against an admin- istrator, that he had no notice, within a year, of demands to authorize him to represent the estate insolvent, and applied the personal property and settled his account, etc., is not good. Hildreth v. Marshall, (7 Q.) 73 167. 415. Where the administrator has been grossly negligent in settling the estate, the court will not grant him a con inuance to plead insolvency of the estate. Poster ii. Abbott, 1 234. 416. A defence of insolvency of the estate can be maintained, only by showing an account duly settled, or regular proceedings in insol- vency under the statute. Cushing v. Field, (9 Met.) 50 180. See, also, Peirce v. Whittemore, 8 282. 417. If the administrator suffers judgment to be recovered before he represents the estate in- solvent, semble, that he must himself pay the debt. Newcomb v. Goss, (1 Met.) 42 333. 418. Where an action was brought against an executor, who had given bond as a residuary legatee, and he was subsequently removed, and an administrator de bonis non appointed, and his answer set up his removal; the administrator was allowed to defend, and to file an answer, setting forth that the suit was brought within one year from giving the bond by the executor, which would constitute a defence. Troy Nat. Bk. v. Stanton, 116 435. 419. An administrator who has induced cred- itors, by his promise to pay, not to sue within the two years, cannot be required to set up the statute of frauds for the benefit of the next of kin, in an action upon his promise. Ames v Jackson, 1 15 508. 430 If judgment is recovered against the ad- ministrator, within a year after his appointment, in an action commenced by or against his intes- tate, execution will be stayed. Clark v May, 11 233. 421. Where one of two defendants dies, pend- ing an action, an agreement signed by him, as to the amount of the judgment to be rendered against him, does not affect the remedy against his estate. New Haven & N. Co. v. Hayden, 1 19 361. 422 Por various rulings, as to the sufficiency of the evidence, and of the instructions to the jury, in an action by an administrator to re- cover money given by the intestate to the de- fendant, on the ground that it was obtained by the undue influence of the defendant,, see Woodbury v. Woodbury, 141 329. 423. Where the writ describes the defendants as administrators of A, and the declaration al- leges their indebtedness as such administrators, and the proof at the trial is, that the plaintiff rendered services beneficial to the estate, after A's death, and before the defendants' appoint- ment, at the request of one of them, the plain, tiff is not entitled to a ruling that the description of the defendants as administrators is surplus- age. Yarrington v. Robinson, 141 450. VI. Insolvent Estate. [For analogous rulings, in cases of proceedings m Insolvency, and additional authorities in caBes of insolvent estates of deceased persons, see Insol- vent, JV, (3)0 424. Por a summary of the existing statutes relating to an insolvent estate of a decedent, see Per Endicott, J., in Greenwood . Russell, 132 536. 447. Where a creditor holds a mortgage or other collateral security for his debt, which he received from the debtor, he cannot prove his debt, except for the balance, after deducting the value of the security, to be ascertained by sale or appraisal, ■' unless he surrenders the security to go into the common fund. Bristol Co. Sav. Bk. •». Woodward, 137 413. See, also. Amory ■». Francis, 16 308; Middlesex Bk. v. Minot, (4 Met.) 45 325, Farnum v. Boutelle, (13 Met.) 54 159; Savage v. Winchester, (15 G.) 81 453; Haverhill Loan, etc., Ass'n 0. Cronin, (4 A.) 86 141. 448. But this rule does not apply where the security is furnished by a third person, not primarily responsible for the debt. Savage 0. Winchester, (15 G.) 81 453; Bristol Co. Sav. Bk. v. Woodward, 137 412. 449. For a ruling that the grantee of the decedent, with covenants of warranty and against incumbrances, was not entitled to prove a claim against his insolvent estate, on the ground that the statute of limitations had run as to the covenant against incumbrances, and there had been no eviction, see Foster 0. Woodward, 141 160. 450. Filing a claim, and taking a dividend on the whole of it, are a waiver of a mortgage given to secure it. Hooker v. Olmstead, (6 P.) 23 481. 451. Under St. 1784, Ch. 2, the allowance of a claim in full, where the creditor claimed only the balance above the collateral security, was ground for re-opening the commission. Towle 0. Bannister, (16 P.) 33 255. 452. Presenting a claim for allowance is prosecuting it within the statute of 1833, giving relief, where a party is prevented from prosecut- ing his claim before the commissioners. Freeman v. Ward, (16 P.) 33 201. 453. Where the assignee of an insolvent debtor deposited the funds with his own firm, and died, leaving his estate and the firm insolv- ent, and the new assignee proved the claim against the firm in insolvency proceedings, and received a dividend, he was postponed to pri- vate creditors, in proving for the balance against the decedent's estate. Jewett v. Phillips, (5 A,) 87 150. 454. A claim allowed by the commissioners, is not barred by the statute of limitations, running between the closing of the commission, and the re-opening it because of new assets. Ostrom 0. Curtis, (1 C.) 55 461. 455. Where the commissioners return a claim " not allowed as on file," the.'r files are admissi- ble to explain this entry; and if it appears there- from that it was withdrawn, it is not deemed to have been adjudicated upon. Ostrom e. Curtis, (1 C.) 55 461. 456. If the commissioners fail to make their return, at the expiration of the time allowed for that purpose, they may be compelled by the probate court to make it, on motion of any party interested. Blanchard 0. Allen, 116 447. 457. Where a creditor proved a note, indorsed by the decedent, and also proved the same note in bankruptcy against the maker, and a decree of distribution was passed in the matter of the decedent's estate, and . a dividend declared, which, with what he received from the maker's estate, gave him more than the claim as proved; and it appeared that the administrator had no- tice of the dividend on the maker's estate, hut failed to notice the excess, till the time of ap- pealing from the order of , distribution had passed; it was held, that this was hot a case of "inadvertence, accident, or mistake," which authorized the opening of the decree. Parker 0. Townsend Nat. Bk., 121 565. 458. Where two commissioners were ap- pointed, and allowed some claims, but made no return, and several years after the death of one, the administrator procured the appointment of another, and filed a bill to redeem mortgaged land, the equity of redemption in which had been purchased by the mortgagee; and the com- missioners again took proofs, and returned a schedule of debts; it was held, in the equity suit, that there was no presumption, as against the mortgagee and purchaser, that the admin- istrator gave no notice of his appointment, or that the claims allowed by the second board were ever presented to the first board. Aiken 0. Morse, 104 277. 459. Arbitrators appointed under the statute, by the probate court, have no power to award that the claimant is in fact indebted to the es- tate; but such an award, if made so as to he separable, may be taken as a rejection of the claim. Gilmore v. Hubbard, (12 C.) 66 220. 460. It was held, under St. 1784, Ch. 2, and semble, that the ruling is still applicable, that when the commissioners' report has been made, the judge's refusal to re-open the commission, and extend the time, was appealable. Walker 0. Lyman, (6 ?.) 23 458. 461. So under the E. S., that the judge's de- cision to re-open the commission, on the ground EXECUTOR, ETC., VI; VII, (1); 571 that further assets have come to the adminis- trator's hands, was appealable Ostrom v. Curtis, (1 C.) 55 461. 462 The propriety of the order cannot be Questioned by the administrator, on appeal from the allowance of a claim after the re- 0peMn 5strom«. Curtis, (1C:) 55 461. 463. If it is re-opened, a creditor, whose claim was rejected on the first hearing, may appeal from such rejection within 30 days from the final report, although he did not present it again. Merriamfl. Leonard, (6 C; 60 151. 464. An appeal does not lie from the decree of the probate court, appointing commissioners upon an estate represented as insolvent, although made without notice to creditors. Putney v. Fletcher, 140 596. See, also, Greenwood «. McGilvray, 120 516. [For additional rulings as to appeals in these pro- ceedings, see Appeal, I, (1) ; II, (4).] 465. If the commissioners allow claims after the six months have elapsed, without an exten- sion, the insolvency is not so established, that an administrator can recover back a payment made by him. Bascom v. Butterfield, (1 Met.) 42 VII. Disposition of the Estate. (1.) Payment of debts and legacies. [As to abatement of legacies, and contribution be- tween devisees and legatees, see Devise and Be- quest, IV. As to cases where legacies are specific, and where general, or demonstrative, failure of gift, ete., see Devise and Bequest, II, (2).] 466. All property, real and personal, of a decedent, is liable for the payment of his debts; and no testamentary disposition can exempt any property from that liability, but if all is not needed for that purpose, the owner may dispose of the surplus; and he may direct the order in which species or portions of his prop- erty shall be so applied, or specially exempt particular kinds or portions; and these direc- tions will be followed as far as possible, consist- ently with creditors' rights. & parte Lee, (18 P.) 35 285. ., *p. An executor or administrator is not liable to pay any debt, for which the deceased was not legally liable, such as his note while an ™ant, not for necessaries, although the will directs payment of " all just debts." Smith e. Mayo, 9 ' 62; Hussey v. Jewett, 9 100. 468. Or a supposed liability as stockholder in a corporation. Ripley ii. Sampson, (10 P.) 27 371. mem' ^ t0 a claim for a to rt, not in judg- Sturgis ii. Slacum, (18 P.) 35 36. nnfnf J f an exeout °r or administrator pays vain. 3l 0wn funds . debte n °t exceeding the ue °i tne ^sets, he may reimburse himself, aancock v. Minot, (8 P.) 25 29. 471. As to the order in which debts are to be paid, see G. S., Ch. 99, § 1; P. 8., Ch. 137, § 1. Wilson v. Shearer, (9 Met.) 50 504, 472. If an administrator sells, for the pay- ment of debts, real property fraudulently con- veyed by the decedent, the proceeds are to be applied ratably to pay all debts, accruing either before or after the conveyance; and the fraudu- lent grantee, if a creditor, may have his pro rata share. Norton v. Norton, (5 C.) 59 524. 473. In paying debts, assets are marshalled thus: (1) Personal property, except specific be- quests and exempt property; (2) Real property, if any, specifically appropriated, for the purpose by the will; (3) Descended estate, whenever acquired by the decedent; (4) Lands specifically devised, although charged generally, but not specifically. See G. S., Ch. 92, 8 34; P S., Ch. 134, § 3. Hays v. Jackson, 6 149; Ex parte Lee, (18 P.) 35 285. 474. Personal property, as the first fund, will not be exempted in favor of the legatee, unless an intention to exempt it appears from express words, or by necessary implication from the whole will. But where the intention appears to have been to provide for payment of debts, by a sale of real property, not merely to charge debts generally on real property, the proceeds of real property will be first applied. Ex parte Lee, (18 P.) 35 285. 475. So where particular personal property is exempted. Seaver v. Lewis, 14 83. 476. For a case where it was ruled, upon the peculiar phraseology of a will, that there was no intention to postpone personal to real property, but only that the proceeds of the real property should not be distributed, till the debts were Ex parte Kempton, (23 P.) 40 163. 477. For a case where it was ruled, upon the peculiar phraseology of a will, that real property devised to the wife was not charged with the payment of debts; and that undevised real property should be first applied to the payment of the excess of debts, etc. , over the value of the personal property, see Adams « Brackett, (5 Met ) 46 280. 478. An administrator of an insolvent estate cannot legally appropriate personal proper, y, to the payment of a mortgage upon real property. Gibson v. Crehore, (5 P.) 22 146. 479. And where a testator took a deed of real property, subject to a mortgage, the land is the primary fund for paying it, in the absence of any provision in the will charging it upon the personalty. Andrews t\ Bishop, (5 A.) 87 490. 480. For a case where it was ruled, upon the peculiar phraseology of a will, that a legacy was preferred to all others; that a mortgage was to be paid out of the personal property; that another legacy was entitled to the next preference; and that a particular legacy must abate with all others, see Towle v. Swasey, 106 100. IFor other rulings on this subject, see Devise am> Bequest, II, (2); III, (8), V.] 572 EXECUTOR, ETC., VII, (2); VIII, (1). (3.) Distribution. 481. An administrator is entitled to a decree of distribution, passed by the probate court, before he can be called upon to divide the bal- ance in his hands among the distributees. Such a decree is final and conclusive, and protects him in acting under it in good faith. Cathaway e. Bowles, 136 54. See, also, Loring v. Steineman, (1 Met.) 42 204; White v. Weatherbee, 126 450; Pierce «. Prescott, 128 140. 482 The decree should not be made, in the general terms used in the statute, but must state, by name, the persons entitled. Loring v. Steineman, (1 Met.) 42 204. [As to deductions for advancements, see Ad- vancement.] 483. No deduction is to be made from a share, on account of a debt to the estate, unless it amounts to an advancement; and a decree di- recting the share of one to be paid to the others, by reason of such a debt, is void. Osgood v. Breed, 17 356; Hancock v. Hubbard, (19 P.) 36 167. 484. Heirs, and next of kin, who have as- signed their interests, are not entitled, against the wish of their grantee, to a decree for the assignment and distribution of real property held by the administrator, under foreclosure of a mortgage to the decedent. Stevens v. Palmer, (15 G.) 81 505. 485. Where A and his mother were sole dis- tributees of his father's estate, and there were no creditors, and the mother was an adminis- tratrix, and after her death, A, who was the sole distributee, took into his possession a note, ber longing to his father's estate, and received in- terest upon it for five years, and caused a suit to be brought upon it by his mother's adminis- trator, but it became worthless; it was held, in an action by an administrator de bonis non of the father's estate, upon the bond of the admin- istrators of that estate, to obtain the amount of the note, that the plaintiff was estopped by A's conduct, to deny that the note had been ac- counted for and distributed. Shurtleff v. Ferry, 138 259. VIII. Accounting; Compensation. [As to an accounting under ancillary administra- tion, see ante, I, (4).] (1.) mode of accounting; effect of de- cree; re-opening. 486. A surviving partner, who is also> admin- istrator of his deceased partner, may be called to account in the probate court for his settle- ment of the partnership affairs. Leland v. Newton, 102 350. 487. And if one of the executors of a will is also surviving partner of the decedent, a settle- ment by the ex cutor of the partnership affairs, without the intervention of the probate court, does not bind the persons interested; but it is evidence against the surviving partner. Forward v. Forward, (6 A.) 88 494. 488. Where an executor, having made pay- ments from his own funds, dies without reim- bursing himself, and the balance due to him has been fixed upon a settlement of his ac- count by his administrator, the latter may cite the administrator de bonis non to account, and apply for an order to pay him the sum due. Munroe v. Holmes, (13 A.) 95 109. 489. Such a claim is not barred by lapse of time; but the question whether, by reason of laches or official misconduct, he ought to be paid, is open upon the application for the order to pay him. Munroe v. Holmes, (13 A.) 95 109. 490. An administrator is bound to account as such, although a will is afterwards found, making him executor and sole legatee. Bennett ■». Woodman, 116 518. 491. An executor has no right to transfer to his account as guardian, money bequeathed to his ward, if she attains twenty-one; and if she dies before that time, his administrator cannot rightfully do so, in rendering and settling an account of his guardianship, and thereupon exonerate his sureties as executor, and make his sureties as guardian, responsible. Livermore v. Bemis, (2 A.) 84 394. 492. Upon an adjudication in the supreme judicial court, that an executor and his sureties are liable upon the probate bond, by reason of his failure to render an account, the account should be so stated in that court, as to show what is included in it for future adjustment with the executor and his sureties, and to deter- mine questions of charging interest. Choate v. Arrington, 116 552. 493. An administrator is bound to render and settle his account upon application of the heirs, although he produces the receipts of all, acknowledging payment of their distributive shares in full. Bard v. Wood, (3 Met.) 44 74. 494. If, at any time before the final settle- ment, any mistake is discovered in the accounts rendered, it may be corrected by the judge in the subsequent accounts. Stearns ». Stearns, (1 P.) 18 157. 495. The executor or administrator maybe examined, under oath, as to the time of his receipt of money, and his disposition of it, to determine whether he is chargeable with in- 'Saxtona. Chamberlain, (6 P.) 23 422. 496. So as to all matters connected with any liability from himself to the decedent, although his answers might save the debt from the stat- ute of limitations. Higbee « Bacon, (7 P-) 24 14; Si- gourney v. Wetherell, (6 Met.) 47 533. 497. If, in answering as to such matters, he states independent matter, tending to show that he was discharged, this is not conclusive on the adverse party, who may contradict it by other proofs. Higbee v. Bacon, (7 P.) 24 14. 498. Before St. 1870, Ch. 393; P. S., Ch. 169, § 18, the executor or administrator could not testify in his own behalf, except as to small items not exceeding forty shillings. Bailey v. Blanchard, (12 P.) • 29 166. EXECUTOK, ETC., VIII, (1), (2). 573 499 An administrator's first account may be allowed although not rendered till four years alter lie'gave notice of his appointment. Dickinson v. Arms, (8 P.) 25 394. f \» to the conclusiveness of the decree, see, also, «&, n, (D ; v, (2) ; probate coubt, n, j 500 After settlement, the decree cannot be impeached collaterally or by bill in equity, for any error, or even fraud. Such objections must be taken by appeal, or by application to re-open. Sever v. Russell, (4 C.) 58 513; Parcher v. Bussell, (11 C.) 65 107. 501. The probate court has power to vacate its decree approving the account, and re-open the account, if the executor or administrator did not account for all he was liable to account for, and this neglect was not brought to the notice of the court when the account was ap- proved. Blake «. "Ward, 137 94. See, also, Stetson «. Bass, (9 P.) 26 27; Field v. Hitchcock, (14 P.) 31 405; "Waters *. Stickney, (12 A.) 94 1. 502. But not to revise the allowance of a sum received upon a settlement, where the charge is that the settlement was induced by the fraud of the other parties thereto upon the adminis- trator, and he is dead. Blake v. "Ward, 137 94. 503. And it will not be re-opened to re-exam- ine questions, which the court has once passed upon. Saxton o. Chamberlain, (6 P.) 23 422. 504. Where an account is re-opened upon the administrator's petition, because he had omitted to credit himself with commissions, this re-opens it so as to correct a failure to charge himself with interest. Saxton v. Chamberlain, (6 P.) 23 422. 505. Where the appellant had settled two accounts as execntor, and another, taking up the balance of the former, as trustee, the court considered all as one chain of accounts, and re- ferred them to an auditor, to enable the appellee to surcharge and falsify. Longley v Hall, (11 P.) 28 120. 506. Upon an appeal, the supreme court will, where fraud is alleged, open the settlement of an executor's account twenty years previously. Davis «. Cowdin, (20 P.) 37 510. 507. The right to open former accounts, upon the settlement of an executor's or administra- tor's account, is limited to accounts in the course of settlement of the same estate. Granger v. Bassett, 98 462. _ 508. For additional rulings as to the conclu- siveness of a decree, settling an executor's or administrator's account, and the power to open, and the effect of opening the same, see Wiggin «. Swett, (6 Met.) 47 194; Bassett v. Granger, 103 177. 509 And with respect to other trustees' ac- counts, which depend upon the same principle, Blake v. Pegram, 101 592, Blake v. Pegram, 109 541. ,**• An administrator de bonis non may ap- peanrom a decree, allowing the account of the gln ^rr executor or administrator. Wiggin e. Swett, (6 Met.) 47 194. tonSi!' 0118 ! 1 *? 8 respecting appeals from de- wees on accounting, see Appeal, I, (1).] (2.) Items chargeable against, and al- lowable to, the accounting party. [See, also, Interest ; and ante, II, (3); II, (4) ; III, (1).] 511. It is the duty of an executor or adminis- trator to charge himself in his account with his own debt to the estate; but if he fails to do so, and it is proved, his liability is established as if , he had charged himself; and his sureties are accountable for it. Tarbell v. Jeivett, 129 457. See, also, Winship v. Bass, 12 199; Hooker «. Bancroft, (4 P.) 21 50; Ipswich M. Co. t>. Story, (5 Met.) 46 310; Leland v. Felton, (1 A.) 83 531; Choate v. Arrington, 116 552. 512. And his own note is extinguished as a contract, by his appointment, having become assets in his hands, and cannot be enforced by a subsequent administrator de bonis non Tarbell v. Jewett, 129 457. 513. The probate court may likewise, upon satisfactory evidence, require him to account for any assets not inventoried or credited. Boston v. Boylston, 4 318. 514. And he may be allowed for inventoried property, which he has used in good faith, in carrying on the decedent's business, by request of all interested. Poole v. Munday, 103 174. 515. But not for manure spread upon the land. Pay v. Muzzey, (13 G.) 79 53. 516. An administrator is responsible for per- sonal property, applied by him to repairs or im- provements of the real property, although in so doing he merely executed the intestate's agree- ment. Cobb v. Muzzey, (13 G.) 79 57. 517. An administrator is not accountable for the value of buildings, erected upon land of the decedent's wife, although the estate is insolvent. "Washburn v Sproat, 16 449. 518. An executor or administrator cannot be allowed for the support and education of ah in- fant heir. Brewster v. Brewster, 8 181. 519. Or for the maintenance of the widow. "Washburn v Hale, (10 P.) 27 429. 520. Nor can he be allowed for an assessment upon stock paid by him, which was levied without lawful authority, but if it was lawful, and the shares were thereby saved to the estate, he may be allowed for it. Bipley v. Sampson, (10 P.) 27 371. 521. Nor can he be allowed for money paid to extinguish a claim of dower. Forward v. Forward, (6 A.) 88 494 522. Or for a debt paid by him, where the special statutory limitation had run against it. Dickinson v. Arms, (8 P.) 25 394; Ames v. Jackson, 115 508. 523. This limitation is not, however, applic- able to a claim due to him from the estate, either for advances, or for a debt due to him by the deceased, which may be charged at any time before the settlement of the final account. Ames v. Jackson, 115 508. See, also, Dickinson v. Arms, (8 P.) 25 394; 574 EXECUTOR, ETC., VIII, (2). Forward «. Forward, (6 A.) 88 494; Munroee. Holmes, (13 A.) 95 109. 524. So where he induces forbearance, by his oral promise to pay a creditor, he may be al- lowed the sum paid, although the promise was void by the statute of frauds. Ames v. Jackson, 115 508. 525. But an administrator cannot charge in his account his own claim, which was barred by the statute of limitations, at the time of the decedent's death, although he held a mortgage as security. Grinnell v. Baxter, (17 P.) 34 383. 526. An executor, authorized by the will to repair, rebuild, etc., may advance his own money for the purpose, and have it allowed in his account. Watts v. Howard, (7 Met.) 48 478. 527. Where taxes paid may be properly al- lowed, the receipt of the collector must be pro- duced or accounted for. Hall v. Hall, 1 101. 528. Taxes paid in another state, wherein the administrator had not taken out administration, cannot be allowed him. Jennison ». Hapgood, (10 P.) 27 77. 529. But taxes paid by him, in good faith, upon land here, supposed to belong to the tes- tator, and purchased by himself, but the title to which proved to be defective, may be al- lowed, on his conveying all his interest in the land to those interested in the estate, with a covenant of warranty against his own acts. Jennison v. Hapgood, (10 P.) 27 77. 530 As to an income tax. Rotch v. Morgan, 105 426. , 531 An executrix, who is also a devisee of a dwelling house, which the will directs shall be kept in repair, may be allowed for her pay- ments for premiums of insurance against fire, but not for taxes paid upon the house. Wiggin v. Swett, (6 Met.) 47 194 532. Where an administrator, having obtained a license to sell the whole real property, sold it, and upon discovering that there was a mort- gage upon it, paid the mortgage and charged himself with the surplus only, it was held, that this was correct. Church v. Savage, (7 C.) 61 440. 533. And where he credits the estate with the entire proceeds, and debits it with the sum paid, this, although not in proper form, leads to the same result, and he is answerable only for the Abby e. Fuller, (8 Met.) 49 36. 534. Where a will empowered an executor to sell real property, and he declined the executor- ship, whereupon an administrator with the will annexed was appointed, who, under a mistake as to his powers, sold the land, and charged himself with the purchase money, and after- wards the executor accepted the office of trus- tee, and sold the land to the same purchaser for the same sum and interest, this entitles the ad- ministrator to credit himself with the purchase money, and any interest thereupon which had accrued. Dunbar v. Tainter, (7 C ) 61 574. 535. Where a man is appointed administra. tor of his deceased wife, and a will is afterwards discovered, he cannot charge in his administra- tion account, after the will is established, the expense of opposing the probate; but he may be allowed all reasonable and necessary expenses, incurred during his administration, in and about the property, and in procuring ancillary admin- istration elsewhere. Edwards v. Ela, (5 A.) 87 87, 536. An administrator who, before his intes- tate's death, lias contracted with him for the purchase of real property, and entered into pos session, made partial payments, etc., and who has included the unpaid purchase money in his inventory, is bound to charge himself there- with in his administration account, if the heirs are ready to convey. Chenery v. Davis, (16 G.) 82 89. 537. Gross neglect in rendering their account, will not preclude executors from being allowed for counsel fees and other reasonable expenses, if it did not cause the litigation. Forward v. Forward, (6 A.) 88 494. 538. An executor was allowed to charge in his account, payments for travelling expenses of the testator's wife and children, summoned to attend him, at his request, on his death-bed; for newspapers to perpetuate the evidence of notice of sale of real property; and for adver- tising. Jennison v. Hapgood, (10 P.) 27 77. 539. Where lands are sold unnecessarily by an executor, but the parties interested claim the benefit of his acts, his necessary expenses and charges must be allowed. Jennison v. Hapgood, (10 P.) 27 77. 540. Where an executor, upon the sale of his testator's lands by him, became a purchaser with two others, on an agreement to share equally the profits of re-sale, he is bound to account for one third of such profits. Jennison v. Hapgood, (10 P.) 27 77. 541. G. S., Ch. 98, § 8; P. S., Ch. 144, § 5, does not make an executor or administrator liable for the use, etc., of real property, for which he would not otherwise be liable, and where he has an interest as heir or devisee, he is not liable to account by reason of his occupa- tion thereof. Almy v. Crapo, 100 218. 542. But under that section, where, before a trustee appointed to hold the real property has entered upon his trust, the executor, by con- sent of parties, collects rents and profits, he must account for them. Choate ». Arringtpn, 1 16 552. 543. So, semble, wherever, as executor, he receives such rents and profits; but his sureties are not liable for rents and profits received after his removal. Brooks v. Jackson, 125 307. 544. Costs, recovered against an executor or administrator, in an action prosecuted or de- fended for the estate, will be allowed him in his account, if he had reasonable cause for the prosecution or defence; but not until he has paid them. Thacher v. Dunham, (5 G.) 71 26; Greenwood v. McGilvray, 120 516. EXECUTOR ETC., VIII, (2); IX— EXTOETION, I. 5T5 545 But where he has indemnified an heir asrainst costs and charges of a suit, he cannot hive an allowance, which would affect that heir or his distributive share _ Dunham s. Branch, (5 C.) 5if 558. 546. Where he joined with the heirs in a bill in equity which was discontinued, and an exe- cution for the costs was paid by a stranger, without his request, he cannot charge the costs in his account. Jennison 11. Hapgood, (14 P.) 31 345. 547. Where the administrator gives notice of his dissatisfaction with the decision of commis- sioners of an insolvent estate, whereupon the • creditor recovers against him, and execution issues de bonis propriis, the judge of probate may allow the costs, if the administrator had sufficient reasons for the appeal. Burns v. Fay, (14 P.) 31 8; Piercer. Saxton,(14P.) 31 274. 548. Where an executor was removed for not accounting, and an administrator de bonis non, with the will annexed, was appointed; and the executor had received rents and profits of the real property, and made disbursements, and had endeavored to sell it under a power con- tained in the will; it was held that there was no error in disallowing his claim for services as executor. Brooks v. Jackson, 125 307. 549. Unfaithful administration will not de- prive an executor of his claim for compensa- tion for his services, so far as they have been beneficial to the persons interested. Jennison v. Hapgood, (10 P.) 27 77. 550. A direction in a will that an executor should be allowed for his compensation " three per cent on the whole inventory of the same, also the whole sums that accrue during the set- tlement of the estate," means that he shall have three per cent on the inventory, and three per cent on the sums that so accrue. Manning v. American Board, etc., (8 Met.) 49 566. IX Public Administrator. LG.S.,Ch.95;P.S.,Ch.l3I. 551. Where a naturalized citizen died here, ■without heirs, it was decreed that the adminis- trator deposit the money in his hands in the treasury of the Commonwealth. 'Don ii. Comm., 1 293 552. In case of a decree of distribution, di- recting an administrator to pay money into the treasury of the Commonwealth, it is his duty to make payment without demand, and his sureties are at once liable therefor. Leland v. Kingsbury, (24 P.) 41 315. 543. In an action for failure to make such E" ' i* 1S unn ecessary to go behind the wcree, and aver that the administrator's account ms been examined and allowed ■Leland ». Kingsbury, (24 P.) 41 315. rprf !.' T he P rotat e court has authority to di- irauiat a public administrator, under the G. S. and P. S., shall distribute the balance in his hands among the next of kin to the intestate. Parker «. Kiickens, (7 A.) 89 509. Executory devise. [See Devise and Bequest, III, (!).] Exemption. [See Arhest, I, (2); Attachment, I, (2); I, (4); Execution, II, (1); Homestead; Jury, I, (1) ; Mili- tia, 11,(1); Taxation, II, (4); Trustee Peocess, in, (2), C] Expert. [See Evidence, I, (4); IX, (2).] Exposure of the person. [See Indictment, VIII, (49); Lewdness,] Expressman and express company. [See Carrier; Jolnt Stock Company.] Extortion. I. By taking illegal Fees. II. By a Threat to accuse op a Crime. £Ab to an arrest for the purpose of extortion, see Arrest, arts. 64, 79. For rulings as to the form and sufficiency of an indictment for extortion, see In- dictment, VIII, (31).] I. By taking illegal Pees. ISee, also. Penal Action.] 1. Technically, the crime of extortion can be committed only by a public officer, and only in reference to fees; and it consists wholly in the act, which may be without malice or bad intent. Comm. v. Coolidge, 128 55 2. It can be committed at common law, only by the receipt of money or some other thing of value. Comm. v. Cony, 2 523. 3. And taking a negotiable note for fees not due, will not support an indictment under the statute. „ \ Comm. v. Cony, 2 523; Comm. v. Pease, 16 91. 4. The statute presupposes a right to demand fees from the person who pays them; the excess then demanded and taken is extortive. Fees improperly demanded and taken, from a person not liable, or voluntarily paid by a person not liable, do not lay the foundation for extortion, as they are not obtained by color of office. 576 EXTORTION, I; II— EXTRADITION. Dunlap v. Curtis, 10 210; Lincoln v. Shaw, 17 410. 5. If an officer exacts payment of a fee before it is due, this is extortion at common law, although not by statute; and it makes no differ- ence that the officer is honest and meritorious, and acted under a misapprehension of his rights Comm. ». Bagley, (7 P.) 24 279. 6. So taking fees for an execution, of which the officer has made no service, is punishable at common law only. Shattuck v. "Woods, (1 P.) 18 171. See, also, Runnells ». Fletcher, 15 5^5. 7. But taking greater fees than are allowed by statute, upon levying an execution, is punish- able under the statute. Shattuck v. Woods, (IP.) 18 171. 8. The statute does not repeal the common law, but furnishes an additional remedy. Runnells v. Fletcher, 15 525; Shat- tuck ». Woods, (1 P.) 18 171; Comm. «. Bagley, (7 P.) 24 279. 9. A declaration under the statute, for receiv- ing excessive fees under an execution, is suffi- cient, if it sets forth a sum levied and the fees received, and that they were greater than the law allows, without showing how much was levied and collected. Livermore v. Boswell, 4 437. 10. So it is good after verdict, if it states the parties to, and the date of the execution, without stating the court. • Livermore ». Boswell, 4 437. 11. So if it fails to state, that the fees were received for the service of the execution and for poundage; although such a defect would be fatal on special demurrer. Moor ». Boswell, 5 306. 12. If no person is charged with extortion, the declaration is fatally defective. Stilson ». Tobey, 2 521. 13. And a variance between the allegation and the proof, as to the person who paid the illegal fees, is fatal. Lincoln -o. Shaw, 17 410. 14. But where the money is paid by an agent, the indictment may properly charge a payment by the principal. Comm. v. Bagley, (7 P.) 24 279 15. The taking of a larger fee than the law allows, pursuant to a custom among officers, is no defence to an action; but upon an indictment, evidence of the custom is admissible, to rebut the presumption of a corrupt intention. Comm. v. Shed, 1 227; Lincoln v. Shaw, 17 410, Shattuck v. Woods, (1 P.) 18 171; Comm «. Bagley, (7 P.) 24 279. II. By a Thkbat to accuse op a Cbimb. LSee, also, Conspiracy. 1 16. The statute, in using the words " extort money, or any pecuniary advantage," means simply with intent to obtain such money, etc by means of the wilful and malicious threats' and it is not necessary to the commission of the offence, that the money, etc., be absolutely ex- torted, or that the party should be in any way defrauded or injured. Comm. v. Coolidge, 128 55. 17. The offence may be committed in an endeavor to obtain only that which is justly due to the defendant. Comm. v. Coolidge, 128 55. 18. As to how far the fact, that the party's purpose was to obtain only what he believed to be his own money and properly, may be con- sidered .by the jury, upon the question of ma- licious intent, see Comm. v. Jones, 121 57; Comm. «, Coolidge, 128 55. 19. The statute is satisfied, if the threat was wilful and intentional. Comm. v. Goodwin, 122 19. 20. A false statement that a warrant has been issued, which will be served unless money is paid, is a threat to accuse of crime, within the statute. Comm. v. Murphy, (12 A.) 94 449. 21. So is a threat to complain to a police offi- cer, for committing a crime. Comm. ■». Carpenter, 108 15. 22. And an indictment for threatening to complain to a police officer against a man, for Committing adultery, is sustained by proof that the defendant found him in bed with a woman, and after some conversation about adultery, took his note for fifty dollars, and threatened to have him arrested for adultery, if it was not paid in three days. Comm. v. Carpenter, 108 15. 23. Evidence of the truth of the accusation is admissible, upon the question of intent. Comm. ». Jones, 121 57. 24. An averment in the indictment, that the defendant accused a man of seducing a woman, and said that she would swear to it, and her oath would send him to State prison, imports a present threat, and the jury may find that the word "seduce" imported the commission of fornication or adultery. Comm. v. Dorus, 108 488. 25. It is not necessary that the accusation threatened against the prosecutor, shall charge a specific offence, with the certainty required in pleading; if the threats are broad enough to be reasonably understood to embrace the offence set forth in the indictment, that suffices. Comm. v. Bacon. 135 521. See, also, Comm. v. Goodwin, 122 19. 26. If the threat is, " I will prosecute you," it is for the jury to say, whether that meant a civil or a criminal prosecution. Comm. ■». Goodwin, 122 19. Extradition. [See Constitutional Law, n, (5).] FACTOB^FALSE PEETENCES. 577 F. Factor. [See Agency, V, (1). Fall River. 1. As to the effect of St. 1854, Ch. 257, passed Apiil' 12, 1854, making the town of Fall River a city, upon the voting for a county treasurer, at a town meeting in May. Ellis v. Bristol Com'rs, (2 G.) 68 370. [See, also, Town and City.] False imprisonment. [See Arrest, III] False personation of officer. [E. S.,Ch.l28, § 19; G. S., Ch. 163, § 18; St. 18T7, Ch. 200. § 24; P. S., Ch. SM5, § 23. See, also. Indict- ment, VIII, (32).] .1. An indictment alleging that the defendant falsely assumed to be a sheriff, suffices, without the addition of the words, "of this Common- wealth." Comm. v. Wolcott, (10 C.) 64 61. 2. One. who, without authority, professes to act as an officer, under a statute, does not incur a penalty imposed upon an officer for a viola- tion of the statute. Comm. v. Woods, (11 Met.) 52 59. 3. Proof that the prisoner demanded admit- tance to a house to search for liquors, saying that he was a "state constable," suffices to sus- tain a verdict against him, upon an indictment charging him with falsely pretending to be a deputy of the constable of the Commonwealth. Comm. v. Connolly, 97 591. [As to obtaining goods, etc., by false personation m another, see 1'alse Pretences; Larceny.] False pretences. [See, also, Cheat; Conspiracy; Fraud. For Hrai?in ri (83) S | llp0nthe indiotment > seelNDiOT- 1. It is not indictable at common law, to obtain possession of property by false pretences. Comm. e. Hearsey, 1 137; Comm. v. Call, (31 p.) 38 515. 2. Nor to obtain possession of goods by lying only, without the use of any false weight, measure, or token. Comm. v. Warren, 6 72. [See, also, Cheat.} 8. To constitute the statutory offence, four fiTll mus ] concur: W An in tent to defraud; W Actual fraud committed; (3) False pretences Vol. 1—73 used to perpetrate the fraud; (4) An accomplish- ment of the fraud by means thereof. Comm. v. Drew, (19 P.) 36 179; Comm. «. McDuffy, 126 467. 4. A false pretence to an agent, who commu- nicates it to his principal, is a false pretence to the principal. Comm. v. Call, (21 P.) 38 515; Comm. v. Harley, (7 Met.) 48 462. 5. And obtaining money from an agent, who pays it by direction of the principal, is obtain- ing it from the principal. Comm. «. Call, (21 P.) 38 515. 6. One who, in a fictitious name, delivers to a person to sell on commission, spurious lottery tickets, purporting to be signed by himself, is punishable for obtaining the agent's goods by false pretences, whether he was actually de- frauded or not. Comm. v. Wilgus, (4 P.) 21 177. 7. Intent to defraud is of the substance of the issue, and must be proved; and one cannot be convicted who has obtained nothing in value, to which he was not entitled as of right. Comm v. McDuffy, 126 467. See, also, Comm. «. Jeffries, (7 A.) 89 548; Comm. ». Walker, 108 309. 8. The intention is a matter of fact, and may be proved as such. Comm. «. Walker, 108 309. 9. One who, by false and fraudulent repre- sentations, obtains the consent of a city to the entry of a judgment against it, and the pay- ment thereof by the city, cannot be convicted of obtaining money by false pretences. Comm. v. Harkins, 128 79. 10. This, on the ground that there is no legal injury to the party, who pays what he is bound in law to pay. Comm. ». Harkins, 128 79. 11. A false pretence within the statute is a representation of a material fact, calculated to deceive, which is not true. It must relate to a past, not a future event. Comm. v. Drew, (19 P.) 36 179; Comm. v. Walker, 108 309; Comm. v. Stevenson, 127 446. 12. Opening and keeping an account with a bank, although part of a scheme to defraud, is not a false pretence within the statute; but doing so in a false name is such. Comm. v. Drew, (19 P.) 36 179. 13. The mere drawing and presenting a check, and receiving the money upon it, in the false name, is not a false pretence, where the assumption of the false name did not induce the bank to pay it. Comm. v. Drew, (19 P.) 36 179. 14. Smrible, that it would be a false pretence for the drawer of a check, having no funds or credit in the bank, to pass the check to another. Comm. v. Drew, (19 P.) 36 179. 15. St. 1863, Ch. 248, § 2; P. S., Ch. 203, § 60, creates a new and additional offence. Comm. v. Walker, 108 309. 578 FALSE PEETENCES. 16. A conspiracy to obtain goods, under color of a purchase on credit, by one of the conspira- tors, from such persons as he could induce to part with such goods, by falsely pretending that he intended to take them to his shop, to sell in the ordinary course of trade, is indictable as a conspiracy to obtain the goods by a false pre- tence, under the act of 1863, and the former statute. Comm. ». Walker, 108 309. 17 An offer of a forged certificate of stock for sale, or the advance of money upon it, is a representation that it is what it purports to be, and the person to whom it is offered is defrauded, where he thus takes it for value. Comm. 8. Coe, 115 481. See, also, Comm. v Stone, (4 Met.) 45 43. 18 And such a representation is not of the description, which the statute requires to be in 115 481. writing Comm . Coe, 19. It is no defence, that the defendant in- tended to repay the money, and proof of his ability to do so is immaterial. Comm. Coe, 115 481. 20. And it is no defence to an indictment, for obtaining goods by false pretences, that the per- son defrauded made false representations as to the goods. Comm. v. Morrill, (8 C.) 62 571. 21. A false representation that the defendant had in his possession a check, drawn by him in favor of the person defrauded, from the pro- ceeds of which he intended to pay certain debts of the latter, is not within the statute. Comm. v. Stevenson, 127 446. 22. A false representation, made to induce a person to execute a lease to another, that the latter is a liquor dealer doing business in B, is within the statute; that he is worth $10,000 is not; and, aemble, that pointing out another as that person is not. Comm. ». Stevenson, 127 446. 23. If the jury are instructed that the govern- ment must prove that the pretences were made designedly, and with intent to defraud, and were false, it is not necessary to add that the defendant knew that they were false. Comm. 8. Devlin, 141 423. 24. Where the offence charged was, that the defendant procured the sale and delivery of chattels by the false pretence that a check given by him for the price was good, etc. ; and proof was made of an agreement to sell the chattels for cash, at a certain price per pound, that they were weighed, and the weight recorded by the weigher, and afterwards the weight was reck- oned and the seller demanded cash, whereupon the false pret- nces were made; it was held, that the jury were correctly instructed that there was no delivery until after the pretences were made, although there was evidence as to a cus- tom that, weighing and recording the weight, constituted a delivery. Comm. 8. Devlin, 141 423. 25. Where two are jointly indicted and tried together, a representation made by one to a third person is competent, if the jury_ are in- structed that it is not evidence against the other. Comm. «. Blood, 141 571. 26. In such a case, letters from one defend- ant to the other, tending to prove the offence charged, .and other fraudulent schemes, are ad- missible, if the jury are instructed that the letters are evidence, as respects the other trans- actions, only upon the question of fraudulent interest in the particular transaction. Comm. 8. Blood, 141 571. 27. Where the false pretences related to tbe sale of the defendants' interest in a partner- ship, evidence of the articles of copartnership and the lease of premises for the business, is not competent for the defendant. Comm. 8. Blood, 141 571 28. Where the defendant, in order to induce A to advance him money for a pretended joint purchase of hay, made false representations as to his own pecuniary responsibility, whereupon A agreed to advance the money, but required the defendant first to execute a partnership agreement, which he did, and A signed it also, and retained it; he was rightfully convicted of procuring A's signature to a partnership agree- ment by false pretences, inasmuch as the agreement was complete without delivery. Comm. 8. Hutchison, 114 325. 29. An allegation in an indictment charging two persons with obtaining a loan of money by false pretences, is not supported by proof of a loan to one. Comm. 8. Pierce, 130 31. 30. But where two are indicted, proof that one, with the concurrence of the other, made the false pretences charged, warrants the con- viction of both, whether they, or either of them, did or did not derive any pecuniary benefit from the fund. Comm. 8. Harley, (7 Met.) 48 462. 81. One, who obtains money upon a chattel mortgage, which he falsely represents that he owns, is within the statute. Comm. 8. Lincoln, (11 A.) 93 233. 32. An indictment lies for falsely represent- ing that the defendant was acting as broker for an undisclosed principal in the purchase of goods. Comm. 8. Jeffries, (7 A.) 89 548. 33. A false statement by the seller, during the negotiations for the sale of a horse, that the animal is sound and kind, if made as a repre- sentation of a fact, and known to be false, is within the statute. Comm. 8. Jackson, 132 16. 34. An averment in an indictment of obtain- ing money by false pretences, is not supported by proof of obtaining a certificate of deposit in a bank. Comm. 8. Howe, 132 250. 36. It is no defence to an indictment for ob- taining money from a specified person by false pretences, that the defendant might have ob- tained money from others by similar pretences, but did not; or that where other money had been obtained by false pretences, or otherwise, she has repaid the same. Comm. ®. Howe, 132 250. 36. Where the indictment charges that the defendant made certain false pretences, and thereupon "asked and requested" the person FALSE PEETENCES— FALSE WEIGHTS, ETC. 579 defrauded to deliver her the money in question, this request need not be literally proved. Comm. v. Howe, 132 250. 37. A false representation to one, that on a ■previous occasion he had omitted to return the nroDer change, is not within the statute. " Comm. v. Norton, (11 A.) 93 266 38. An indictment lies for obtaining money ly false pretences as a charitable gift. Comm. v. Whitcomb, 107 486. 39. Proof that the defendant, by falsely pre- tending to a dealer that he was authorized, by fictitious persons named by him in another state, to order goods to be sent by a carrier to them, which were sent accordingly and re- ceived by him, will sustain an indictment in the county where he made the pretences, and ■where the goods were delivered to the carrier. Comm. «. Taylor, 105 72. 40. An indictment lies for falsely represent- ing that a note of a broken bank was worth its nominal value, although it may be of some vale. Comm. v. Stone, (4 Met.) 45 143. 41. And it is not necessary to prove that none of the stockholders are solvent, or that they never paid the amount of this stock. Evi- dence of refusal of the bank to pay its bills, that they are not current, etc., suffices. Comm. v. Stone, (4 Met.) 45 43. 43. But a conviction, cannot be had upon an indictment, describing the note as a counterfeit, or one of a bank that had no existence. Comm. v. Stone, (4 Met.) 45 43. 43. Obtaining money from a debtor, on the false pretence of being the creditor's agent, is punishable, although it was paid by the defend- ant to the rightful agent, but with knowledge that the latter intended to defraud his principal. Comm. v. Call, (21 P.) 38 515. 44. The defendant cannot be convicted by reason of any false representation, which did not induce the prosecutor to part with his goods or money. Comm. v. Davidson, (1 C.) 55 33 ■h, 45 ' ^ here tne all egation in the indictment is, mat the representation was that the defendant ■was a member of a firm, owing not mote than W and the proof is that he represented that fatal DOt m ° re than ® 400, the variance is Comm. «. Davidson, (1 C.) 55 33 „. 4 ?,' ^jfe*"* of the individual indebtedness oi : the defendant and his. partner, is not admis- «ous where the representation related to the pecuniary condition of his firm. Comm. «. Davidson, (1 C.) 55 33. imm ^ h - S&t[o I . in an Mictment of a sale Z M ' J? sufflci . entl y P rOT ed, by a sale for the defendant's promissory note at four months, i^omm. v. Davidson, (1 C.) 55 33. D f;„?" the trial of an indictment for false S« 1 I n the sale of a norse . evidence of 26E^ w » £J« «™ VH***,. is in- Comm. v. Jackson, 132 16. «erfifl^ t l h f e , the false pretence was that a oertmcate of stock was genuine, evidence of the possession and use by the defendant of other forged certificates, at about the same time, is admissible upon the question of guilty knowl- edge. Comm. «. Coe, 115 481. 50. And previous conversations with a third person, as to committing the act charged, are admissible. Comm. «. Castles, (9 G.) 75 121. 51. And evidence is admissible to show the receipt of money from persons, not named in the indictment, with other facts, tending to show the falsity of a representation, as to the existence of a charitable institution, and a legacy to establish the same. Comm. v. Howe, 132 250. [As to proof of other similar acts, etc., see, also Evidence, I, (3).] 52. Pvidence of the defendant's insolvency is competent, upon the question of his intent in obtaining goods. Comm. -o. Jeffries, (7 A.) 89 548. 53. "Where the charge is, that the defendant represented himself to be a broker, for an un- disclosed principal, the vendee may testify that he gave credit to such principal, although he charged it on his books to the defendant, and made out a bill in his name. Comm. v. Jeffries, (7 A.) 89 548. 54. For sundry lulings, upon the question of variance, upon an indictment of that descrip- tion, see Comm. e. Jeffries, (7 A.) 89 548. 55. As to evidence of value, where the prop- erty obtained by the false pretences is a check. Comm. •». Coe, 115 481. 56. Evidence is admissible, as to- what the person defrauded paid the money for, and what it was received for. Comm. v. Chesley, 107 223. 57. Upon an indictment for falsely repre- senting that a note is valid, and secured by a real estate mortgage, it is competent to show that the defendant represented that it was secured by a mortgage. Comm. a. Parmenter, 121 354. 58. And where, upon the production of the note, the words " This note is secured by real estate mortgage," were written in the margin, but did not appear in the copy of the note con- tained in the indictment, it was held that there was no variance. Comm. v. Parmenter, 121 354. False representations. [See False Pretences ; Fraud, II.] False return. [See Office and Officer, I, (4); II.] False weights and measures. [See Inspection; Weights and Measures.1 580 FANEUIL HALL MAEKET— FENCE; FENCE VIEWERS. Faneuil hall market. 1. As to the validity, effect, and interpreta- tion, of the by-law of the city of Boston, for the regulation of Faneuil Hall market, passed March 2, 1843. Comm. v Rice, (9 Met.) 50 253 Fast day. LSee Bill of Exchange, etc., HI, (2)s POOR Debtor, III, (1); Timb.1 Federal courts. LSee District Court op the United States; Ju- risdiction, II [Removal op Cause, II ; Supreme Court op the United States.! Federal customs and duties. [See Customs ; Internal Revenue.] Federal military and naval forces. I See United States Forces.) Federal officers. LSee Customs , Internal Revenue; Post Oppice.1 Fee tail. LSee Estate Tail.] Fees. LSee Attorney, etc., Ill; Constable; Costs, IV; Executor, etc., VIII, (3) ; Extortion, I ; Intoxi- cating Liquors, VII; Office and Officer, I, (3); Sheriff; Taxation, VI, (8); VIII; Witness, I, (2).1 Felony. LSee, also, Conviction and Sentence; Indict- ment ; and the titles of the different f elonies,] 1. For the definition of felony, see St. 1852, Ch. 37; § 1; G. S., Ch. 168, § 1; P. S., Ch. 210, § 1, superseding rulings under the common law, and former statutes, in Comm. v. Carey, (12 C.) 66 246. See, also, Comm. «. Andrews, 2 14; Comm. v. Macomber, 3 254; Comm. «. Barlow, 4 439; Comm. v. Newell, 7 245; Comm. ■». Roby, (12 P.) 29 496; Rohan i>. Sawin, (5 C.) 59 281; Boston & W. R. R. ». Dana, (1 G.) 67 83. 2. As to the effect of the word " felonious," or "felony," in statutes enacted before the Statute of 1852. Comm. t>. Macomber, 3 254; Comm. v. Barlow, 4 439; Comm. v. Newell, 7 245; Comm. ■». Carrol, 8 490; Mead «. Boston, (3 C.) 57 404; Comm. « Carey, (12 C.) 66 246. 3. Where an act, constituting only a misde- meanor, is alleged in the indictment to have been done '' feloniously," and the defendant is. convicted, the word " feloniously" will he re- jected as surplusage, and the defendant sen- tenced for the misdemeanor, Comm. v. Squire, A Met.) 42 258; overruling pro tanto, Comm. v. Newell, 7 245. See, also, Comm. v. Cooper, 15 187; Comm. ■». Roby, (12 P.) 29 496; the latter also overruled 4. The English doctrine, that an action does not lie, for goods feloniously taken by the de- fendant, until criminal proceedings have been taken against him, is not law in this Common- wealth. Boston & W. Railroad ». Dana, (1 Q.) 67 v 83. See, also, Boardman «. Gore, 15 331. 5. Since the statute of 1852, a common law forgery is not a felony, and an accessory there- to, before the fact, is punishable as a principal. Comm. •». Ray, (3 G.) 69 441. 6. It is indictable, at common law, for one to. counsel and solicit another to commit a felony, although the felony is not committed. Comm. ■». Flagg, 135 545. See, also, Comm. v. Willard, (22 P.) 39 476. 7. It is not a sufficient ground to set aside a verdict of guilty, upon an indictment for a con- spiracy to commit a felony, that the felony has- been committed, and thereby the. lesser offence was merged. Comm. e. Walker, 108 309. Contra, apparently, Comm. v. Kingsbury, 5 106. See, also, Comm. v, O'Brien, (13 C), 66 84. Female child, abuse of. |See Rape.] Fence ; fence viewers. [See, also, Boundary Line; Highway; Impound- ing. As to the duty of maintaining a fence along the line of a railroad, see Railroad, III, (5). As to a covenant to maintain a fence, see Covenant, II, (2).l 1. At common law, a man must keep his cattle upon his own land, at his peril. Rust v. Low, 6 90; Eames v. Salem & L. R. R., 98 560; Lyons v. Merrick, 105 71 ; Boston & A. Railroad v. Briggs, 132 24. 2. And the statutes, regulating the rights and obligations of adjoining land owners, do not apply, where the parties are not adjoining owners. Lyons o. Merrick, 105 71. 3. Thus, where the defendant's beast escaped, through an insufficient fence, into A's field, thence into B's field, thence into the plaintiff's field, the defendant is liable for the injury; although, as between him and A, the latter was FENCE; FENCE VIEWEES. 581 bound to keep the fence in repair, and the fence between the plaintiff and B was insufficient. Lyons v. Merrick, 105 71. 4 This, upon the ground that the plaintiff was not bound to fence as against animals unlawfuUyinB'slot. Lyons v. Merrick, 105 71. 5. For additional illustrations and applica tions of this principle, see Melody v. Reab, 4 471; Rust v. Low, 6 90; Stackpole v. Healy, 16 33 ( Eames v. Salem & L. Railroad, 98 560;, McDonnell v. Pittsfield, etc., R. R., 115 564. 6. So where cattle are turned by the owner into the highway to graze, the owner of a field may recover for any damage done by them, not- withstanding the insufficiency of his fence. Stackpole v. Healy, 16 33; Lyman ». Gipson, (18 P.) 35 422. 7. But if cattle, properly driven upon the highway, escape upon unfenced adjoining land, the owner is not liable, if he makes a reasonable effort to remove them and prevent damage. Hartford v Brady, 114 466. 8. So the owner of land is not liable to his neighbor, if cattle, at large in the highway, break into his neighbor's lot, through the in- sufficiency of a fence which the former was bound to repair Pool «. Alger, (11 G.) 77 489. 9. The common law rule is not altered by G. S„ Ch. 25, S 25; P. S., Ch. 36, § 27. Hartford v. Brady, 114 466. See, also, Rust v. Low, 6 90; Thayer «. Arnold, (4 Met.) 45 589. 10. As to a prescriptive right, to have the occupant of adjoining land maintatn the entire division fence, see Basement, II, (2); and the following cases: Rust a. Low, 6 90; Binney v. Hull, (5 P.) 22 503; Thayer v. Arnold, (4 Met.) 45 589; Bronson i>. Coffin, 108 175; Bronson*. Coffin, 118 156. 1. A deed containing a provision, that the grantee shall maintain the entire fence, binds the grantee to do so. Minor v. Deland, (18 P.) 35 266. 12 One, into whose land agisted cattle escape, may sue the general owner or the agister at his election. Sheridan d. Bean, (8 Met, ) 49 284. 13. Each land owner is so far the owner of the part of the division fence, assigned to him to keep in repair, that its removal to make a new fence will not make him a trespasser. Burrell «. Burrell, 1 1 294. 14. One may place half of the fence, which 1* is bound to maintain, on the land of the adjoining owner, and where a ditch is proper, ne may cut half of it on his neighbor's land. Newell v. Hill, (2 Met.) 43 180; Ken- nedy jj. Owen, 134 227. 15. If he builds more than half the fence on ™ neighbor's land, the latter may remove the excess, and, if necessary for that purpose, he may take down the whole. Sparhawk «. Twichell, (1 A ) 83 450; • ^v v. Owen, 132 227. 16. It is not ground for rejecting the verdict of a sheriff's jury, for damages in taking land of a parish for a highway, that evidence was admitted of the cost of erecting a fence, or that the sheriff instructed the jury, that they might consider the expense of a fence on the whole line. No. Bridgewater Par. v. Plymouth, (8 C.) • 62 475. 17. An agreement between the parties, that each shall repair a portion of the division fence, does not authorize the one who has repaired his neighbor's share to recover double damages. Rust «. Low, 6 90. 18. So where the obligation to repair arises from the acceptance of a deed, containing a condition to repair. Kennedy «. Owen, 134 227. 19. The action will not lie, unless the fence is built upon the true line, or the line desig- nated by the fence viewers under the statute. Kennedy v. Owen, 131 431. See, also, Sears ». Charlemont, (6 A.) 88 437. 20. Under St. 1785, Ch. 5, an adjudication by the fence viewers, of the amount to be paid by one to the other, who has built the whole fence, is void, if made without notice to the former. Scott v. Dickinson, (14 P.) 31 276. 21. And notice of the meeting, at which the fence was adjudged deficient, and the value ap- praised, must be proved in an action for double damages. Lamb v. Hicks, (11 Met.) 52 496. 22. As to the sufficiency of the notice under the st. of 1785. Rowe v. Beale, (15 P.) 32 123. 23. A demand of double the value, and double the fence viewers' fees, which have not been taxed, is several, and-including the latter does not render it void. Lamb v. Hicks, (11 Met.) 52 496. 24. The defendant cannot defeat the action, by showing a mistake in the fence viewers' ad- judication as to the true division line, or an error in their adjudication, that the fence erected by the plaintiff is sufficient. Baker «. Lakeman, (12 Met.) 53 195. 25. A partition fence upon land covered, for I part of the year, by the water of an artificial | mill pond, and used for pasture and mowing ' during the remainder, is not a water fence within the statute. Lamb v. Hicks, (11 Met.) 52 496. 26. A line designated by the fence viewers, under St. 1863, Ch. 190, § 1; P. S., Ch 36, § 14, has no effect upon the title or right of pos- session to the land. Currier v. Esty, 116 577. 27. Under a complaint that a fence is out of repair, the fence viewers have no authority to assign to each adjoining land owner his share of the fence, and to direct the building thereof within a specified time. Sears v. Charlemont, (6 A.) 88 437. 28. An assignment by fence viewers, under the R. S., of part only of a division line of fence, is not void, neither party having requested 582 FERRY— FINDING AND FINDER. a division of the whole line; and such an assign- ment fixes the party's right, and cannot be changed, without consent, by another assign ment, including the whole line. Alger v. Pool, (11 C.) 65 450. 29. The liability of the owner or occupant of uninclosed land, to pay for one half the division fence, erected by his neighbor, accrues imme- diately on his inclosing or depasturing the same, and the latter's right to recover the same is complete, upon the commencement of pro- ceedings to have the fence viewers fix the value, and cannot be defeated by a sale, or any pro- ceedings of the former or his vendee Field v. Nantucket, (1 C.) 55 11. 30. St 1847, Ch. 102, creating an exception for Nantucket, entirely prospective. Field v. Nantucket, (1 C.) 55 11. Ferry. 1. The general superintendence of a ferry is in the legislature: and a general grant of a ferry may be supplemented, by subsequent regulations as to tolls 1 , etc. Charles R. Bridge ■». Warren Bridge, (7 P.) 24 344. 2 Bemble, that the right of ferry may exist, separate from the ownership of the soil at the termini. Mx parte Fay, (15 P.) 32 243. 3. Under St. 1821, Ch. 109, § 1, abolishing the court of sessions in Suffolk county, the power of licensing ferries, within the limits of the city of Boston ; was vested in the mayor and aldermen Mc parte Fay, (15 P.) 32 243. 4. A license granted by them is not void for failure to designate particularly the termini Mc parte Fay, (15 P.) 32 243. 5. Where the board grants the license, it is immaterial whether a committee, to which the petition was referred, reported favorably or not. Mc parte Fay, (15 P.) 32 243. 6. A lease of a ferry, with covenants of exclu- sive enjoyment, will not prevent the mayor and aldermen from licensing another ferry in the same waters, under their statutory powers; but if the city is the owner of an exclusive fran- chise in a ferry, the lessees will take it, notwith standing any license to others. Me parte Fay, (15 P.) 32 243. 7. Where, pursuant to permission of the legislature, the ow. ers of a ferry build a bridge in its place, and take toll, the f ranchise of the ferry is surrendered, and does not revive, when the bridge, according to the charter, reverts to the Commonwealth. Charles R. Bridge v. Warren Bridge, (7 P.) 24 344. 8. And where the legislature authorizes a corporation to build a bridge, in place of an ancient ferry, and provides for compensation to the ferry owners, Which is accepted, the ferry franchise is abolished, not transferred to the bridge company Charles R. Bridge v. Warren Bridge, (7 P.) 24 344. 9. If a new ferry is established so near the old ferry as to draw away the toll, an action will lie; but mere proximity is not conclusive as the new ferry may so increase the travel, that the old ferry will lose nothing. Charles R. Bridge v. Warren Bridge. (T P.) 24 344. 6 v 10. As to the right of the Bast Boston Ferry company, under St. 1852, Ch. 244, § 2, to have its rates of tolls fixed, so that the yearly divi- dends shall not be reduced below 8 per cent, and new rates established when necessary for that, purpose. East Boston Ferry v. Boston, 101 488. 11 Where the city council, being authorized by statute to maintain a ferry, at such rates of toll as the board of aldermen may from time to time determine, orders that the ferry be run free of toll after a future day, the court may compel it by mandamus to collect the tous established by the board of aldermen. Atty.-Gen'l v. Boston, 123 460. 12. The city council of Boston, under St. 1852, Ch. 244, and St. 1869, Ch. 155, and the subsequent purchase of the ferry by the city in 1870, have no right to determine that the East Boston ferry shall be run free of toll. Atty.-Gen'l v. Boston, 123 460. 13 A traveller, who drives his horse and wagon on board a ferry boat, selects his place, and retains the custody and control of the horse, is bound to use ordinary care and dili- gence, to prevent injury from the horse's fright or restlessness; and if he neglects so to do, he cannot recover, where the horse becomes fright- ened and rushes overboard, without the ferry- man's fault. White v. Winnisimmet Co., (7 C.) 61 155. 14. In an action against a ferryman, for the loss of animals, which fell off the boat and were drowned, for want of a barrier, evidence is inad- missible that the boat, in its present condition, had transported animals for 30 years without injury. Lewis v. Smith, 107 334. 15. A ruling that in such a case, the defend- ant was not liable, if the loss was occasioned" wholly by the animals' fault, is not open to ex- ception, if the only sense in which it could, upon the evidence, be understood, was, that he was not liable, if they started and forced them- selves back into the water, without apparent cause. Lewis v. Smith, 107 334. [For a ferryman's liability for an injury to per- sons by negligence, see Negligence.] Field driver. [See Impounding?] Filing. [See Clerk; Indictment, 1; Pleading, VII; Practice, II, (4).] Finding and flnder. [See Lost Property.! FINE— FIRE, ETC. 583 Fine. [See Conviction and Sentence; Penai. Action. J Fire; Are district; fire depart- ment ; fire engine company. iqoa also Town and City. As to the liability of a aUrffi for toe, see Kailroad, IV, «. As to to- sutance against fire, see Insurance, III. As to the Affect of injury or destruction of leased property by KeUNDLOBD AND TENANT, IV, (2). AstO .the effect of a condition to repair, etc., a building, where itisdestioyed by fire, see Condition, art. 88.1 1. Semble, that at common law, if a fire kindled by one in his house, spreads to. his neighbor's property, he is liable for the loss. Lothrop v. Thayer, 138 466. 2. In this Commonwealth^ negligence is the foudation of the liability; but the cases are where fire is set on land for the purpose of clearing it, or f r other purposes. Lothrop v. Thayer, 138 466. See, also, Barnard v. Poor, (21 P ) 38 378, Tourtellot v, Eosebrook, (11 Met) 52 460; Higgins v. Dewey, 107 494. 3. A tenant at will is not liable to his landlord for the mere negligence of himself, or his ser- vants, in kindling or guarding fires in stoves or chimneys, for the purpose of heating the prem- ises; but he is liable for wilful burning, and for such gross negligence as amounts to reek- less conduct. Lothrop v. Thayer, 138 466. 4. Such a tenant of part of a building, the remainder being occupied by the landlord, in each part of which personal property of the landlord is contained, is liable for the destruc- tion of the landlord's part, by fire caused by such negligence, but not for the destruction of his own part; and his liability for the personal property depends upon the nature of the bail- ment. Lothrop v. Thayer, 138 466. 5. St. 1868, Ch. 346, repealed by St. 1869, Ch. 417, providing for the dissolution of fire districts, formed of parts of two or more towns, and for the division of their property, was con- stitutional. "Weymouth & B. Fire Dist. t>. Norfolk Com'rs, 108 142. 6. For various rulings as to the interpretation of that statute, see Weymouth & B Fire Dist. v. Norfolk Com'rs, 108 142. 7. St. 1844, Ch. 152, § 13, authorized an as- sessment of sums voted to be raised by a fire district, upon stock owned by an inhabitant of the district, in corporations organized and doing business elsewhere. Dwight ». Springfield Fire Dist., (11 Met.) 52 374. 8. A town, having a regular fire department, has no authority to vote money to pay the mem- bers of a private fire company, not organized under the statute. Greenough v. Wakefield, 127 275. 9. A town is authorized to vote money for the repair of fire engines, used to extinguish. fires therein, whether they belong to the town, or were purchased by private subscription. Allen «. Taunton, (19 P.) 36 485. 10. Engineers have power, under the statute, to remove engine men at their pleasure; and where the engine men of a town formed them- selves into an engine company, and met regu- larly in a room provided by the town, using furniture, provided by voluntary contributions; and at a regular meeting voted to disband, and sell the furniture, and delivered it to the de- fendant, whereupon those present at the meet- ing were removed by the engineers; it was held, that the remaining engine men might maintain replevin for such furniture. Perry v, Stowe, 111 60. 11. But the legal title to furniture thus pro- cured and used, is in the town; and the town may maintain replevin therefor, against engine men who disband, and distribute it among them- selves. Brookline v. Sherman, 140 1. 12 If furniture used for the general pur- poses, and bought from the general funds, of an engine company, is taken and detained by the members to keep it from a succeeding com- pany, the members of the new company there- after appointed may maintain replevin therefor, without a demand. Bisbee ». Fadden, -14=0 6. 13. The selectmen of a town have power to establish a fire department, although the town has elected fire wards at its annual meeting Long «. Sargent, 101 117. 14. Under a statute authorizing a city to im« pose a penalty, not exceeding $50, for a breach of its by-laws, its board of fire commissioners has no>power to sentence a person, in the em- ployment of the fire department, to forfeit one month's pay, being $100, for a violation of its rules and regulations. Tyng v. Boston, 133 372. 15. Under G. S., Ch. 24, |§4, 5, one fire ward alone had no more authority than any private person, to direct the destruction of a house to stay a conflagration. Parsons v. Pettingell, (11 A.) 93 507. [See P. S., Ch. 65, §§ 3, 4, 5.] 16. And this is the rule, although the fire wards have made a by-law, authorizing one of their number, in urgent cases, to exercise the authority of the board. Coffin v Nantucket, (5 C.) 59 269. 17. To maintain an action against the town, the plaintiff must prove that the destruction of his particular building was ordered by three fire wards, not a general order, under which his building was selected by one. Ruggles v. Nantucket, (11 C.) 65 433. 18. A person in possession, under a contract for a deed, who has not paid the full purchase money, is not the "owner" for the purpose of maintaining such an action. Euggles v. Nantucket, (11 C.) C5 433. 19. The provision allowing a recovery does not apply, if the building was so much burned, that it could not have been saved from destruc- tion by the flre. Taylor « Plymouth, (8 Met.) 49 462. 584 FIEE CRACKERS— FISH; FISHING; FISHERY; I. 20. As to the right to destroy a building for such purpose, independently of the statute, see per Shaw, Ch, J , in Taylor 0. Plymouth, (8 Met.) 49 462. 21 In order to put out a fire, hose may be laid across a railroad- track; and if the owners or their servants cut it, by running a train across it, they are liable to the owner of the building, and also to the owcer of the hose. Metallic Com. Cast. Co. ■». Fitchburg BaHroad, 109 277; Hyde Park v. Gay, 120 589. Fire crackers. 1. Under R. S., Ch. 58, § 6; St. 1839, Ch. 153, the penalty for firing crackers is vested in the Commonwealth, not the town. Gifford v. White, (10 C.) 64 494. [G. S., Ch, 88, S§ 46, 47; P. S., Ch. 102, §§ 54, 55.] Fire insurance. Bee Insitrance, III.] Fish ; fishing ; fishery. I. General Rules. II. Interpretation and Effect of Stat- utes. Proceedings thereunder. III. Shell Fish. [As to whaling and other shipping voyages, see Shipping. As to inspection of fish, see Inspection. For various rulings as to the power of the legisla- ture over fisheries, and the right of the owner to compensation when destroyed, etc., see C onstitu- tional Law, III, (4). As to the effect of the statute allowing the erection of dams for overflowing, etc., cranberry lands, see Cranberry Meadow. As to the right of a land owner to build a dam on his land for a fish pond, see Mill and Milldam, arts. 9, 10.] 1. General Rules. 1. A riparian proprietor ,upon an unnaviga- ble stream owns the soil, to the centre of the stream, and has the exclusive right of fishing therein, except so far as such right is regulated by statute. " " Waters 0. Lilley, (4 P.) 21 145; Comm. «. Chapin, (5 P.) 22 199; Vinton «. Welsh, (9 P.) 26 87. 2. This right does not entitle him wholly to obstruct the fish, so as to prevent the owners above from enjoying the same privilege. Comm. 0. Chapin, (5 P.) 22 199. 3. But an owner of land upon the banks of a river, where the tide ebbs and flows, does not make himself liable by planting stakes upon his own flats, so as to obstruct another's right to take fish. Locke ». Motley, (2 G.) 68 265. 4. A custom to take in another's fishery in an unnavigable river is not a good custom. Waters 0. Lilley, (4 P ) 21 145. 5. Such a right, if it can be sustained at all, must be acquired by prescription, and as appur- tenant to another estate. Waters 0. Lilley, (4 P.) 21 145. See, also, McFarlin v. Essex Co., (10 C.) 64 304. 6. And the same adverse occupation is re- quired to establish it, as in case of any other p. q q p i-|-| p TJ+ McFarlin 0. Essex Co., (IOC.) 64 304. 7. The owners of land, bordering on a large river, although the tide does not ebb and flow therein, hold the right of ^fishing, subject to the public easement, and cannot obstruct the pas- sage of boats. Comm. 0. Chapin, (5 P.) 22 199. 8. If no appropriation has been made of the fish in a navigable river, by the adjoining towns, or the legislature, any citizen may take them, if he does not trespass on another's land. Coolidge 0. Williams, 4 140. Freary 0. Cooke, 14 488; Comm. 0. Chapin, (5 P.) 22 199. 9. The power given to towns by St. 1797, Ch. 75, to sell the right of taking fish within their limits, created a franchise, which might be assigned or released. Watertown v. White, 13 477. 10. A town on a navigable river may appro- priate the fish within its limits; but the limits cannot include tide waters. Coolidge 0. Williams, 4 140. See, however, Randolph 0. Braintree, 4 315. 11. The legisl ture has the power to control and regulate fishing in navigable or unnavigable waters, so as to include riparian proprietors, as well as others; such acts are public statutes, of which courts take judicial notice. Burnham 0. Webster, 5 266; Comm. 0. McCurdy, 5 324; Nickerson v. Brackett, 10 212; Vinton 0. Welsh, (9 P.) 26 87. 12. So as to statutes, regulating fishing in the sea, within the territorial limits of this State, which binds citizens of other states, and vessels enrolled and licensed under the United States laws. Dunham 0. Lamphere, (3 G ) 69 268. 13. An owner of a mill dam holds it under condition, that a sufficient passage way be allowed for the fish; and this limitation being for the public benefit, is not extinguished by neglect to compel compliance. Stoughton 0. Baker, 4 522. 14. But the remedy for obstructing fish is under the statute, not by indictment. Comm. 0. Chapin, (5 P.) 22 199 15. The legislature may regulate fish-ways through mill dams, or appoint committees to locate and describe the site and dimensions of fish-ways; and such committees are liable to the owner of the dam, if they locate a fish-way unnecessarily or unreasonably, so as to injure him, without a public benefit. Stoughton 0. Baker, 4 522. FISH; FISHING; FISHERY; I; II. 585 16 And an authority to build a dam does ™t repeal a prior statute providing for fish- wavs through all dams on the river. W3 ^ Vinton ». Welsh, (9 P.) 26 87. 17 So the legislature may appoint a com- mittee to make alterations in a fish-way, and direct part of the expense to be paid by the owner of the dam. Stoughton v. Baker, 4 522. 18. Where the plaintiff placed a seine reel on the defendant's river bank, and on his neglect, after notice, to remove it, the defendant cut it down and pushed it into the river, and it floated off it was held that an action did not lie. ' Almy v. Grinnell, (12 Met .) 53 53. 19. An ancient custom, among the inhabitants on the Connecticut river, that where one of them clears a place for seine fishing on another's land, beholds it for the fishing season, is void against the owner of the land. Freary v. Cooke, 14 488. 20. The annual temporary use of a fishing privilege does not disseize the person lawfully '■entitled thereto. Nickerson v. Brackett, 10 212. 21. A free fishery is not an exclusive fishery Melvin ®. Whiting, (7 P.) 24 79 22. St. 1871, Ch. 281, § 2; P S., Ch. 91, § 31, applies only to a case where the waters of a stream are inclosed by the proprietor, for the purpose of cultivating fishes. Eastham v. Anderson, 1 19 526 23. Where a town leased a fishing privilege, upon condition that it would make no other similar lease within a year, a subsequent lease, although recited to be void, if the town had no right to make it, discharged the first lessee. Taunton v. Caswell, (4 P.) 21 275. 24. Where a town sold to the defendant, "Herring brook," for three years, at $170 a year, and he enjoyed the fishery therein, it was held, in an action for the price, that the trans- action was in the nature of a lease; that the de- fendant, unless evicted or interrupted by a par- amount title, was estopped to deny the right of the town to make the lease; that the questions as to the extent of the stream, and whether it was navigable, were for the jury, and that the statute of frauds did not apply Eastham v Anderson, 119 526. II. Interpretation and Effect of Stat utes; Proceedings thereunder. 25. St. 1709-10, 8 Anne, Ch. 7 (1 Prov. L., °*4, as to obstructing the passage of fish in lie i the're S d m f ° rCe ' and an indictment wiU Comm. v. Buggies, 10 391. statute^ Seine " DOt ^ mcumbranoe within that Coram, v. Ruggles, 10 391. nrW'J!*' Y&' Cn 5 > incorporating the pro- do™ Z 0t Mattakesset creel£, in Eagartown, aoes not apply to the taking of fish by seines, Vol. l—u - etc., in the arms, coves, or bays, of the Great Pond. Cleaveland v. Norton, (6 C.) 60 380. 28. St. 1788, Ch. 68, to prevent the destruc- tion of shad and alewives in Mystie River, con- fers upon the committees appointed thereunder, power to cause the river and the streams run- ning into it to be kept open; to remove obstruc- tions therein; to make the passage way wider and deeper; and for those purposes to enter upon land, etc.; and under that statute, the question whether such an obstruction existed, is for the jury. Hyde v. Russell, (2 C.) 56 251. 29. That statute does not give the right to place stakes or other permanent fixtures, on the land of another, as incidental to the right of fishing. Locke ». Motley, (2 G.) 68 265. 30. The inhabitants of Somerville are subject to the restrictions contained in that statute, and St. 1820, Ch. 67. Hanscomb v. Russell, (15 G.) 81 162. 31. For various rulings under St. 1797, Ch. 69, for the preservation of alewives in Wewe- antil River, as to the regularity of the choice of the committee; the oath of office, and other qualifications of the members; the power of a town treasurer to sue for forfeitures, the form of the declaration; the regularity, construction, and conclusiveness of the committee's order, see Briggs v. Murdock, (13 P.) 30 305. 32. St. 1813, Ch. 144, for the preservation of fish in Penobscot River and Bay, and the streams emptying into the same, extends to fisheries in the town of Orrington. Comm. v. Wentworth, 15 188. 33. St. 1815, Ch. Ill, vesting in the town of Middleborough the right to dispose of the privi- lege of taking alewives in the river, and pro- viding a penalty against those obstructing their passage, gives a cumulative remedy; and a pur- chaser of the fishery may have an action on the case against one obstructing the passage of the fish. Barden v. Crocker, (10 P.) 27 383. 34. In such an action, the declaration need not aver where the obstruction was erected; and where an injury to a fishery in one county is caused by an obstruction in another, an action lies in either county. Barden v. Crocker, (10 P.) 27 383. 35. St. 1817, Ch. 151, concerning the fishery in Menatiquot River, is not repealed by St. 1818, Ch. 35, incorporating the proprietors of mills on that river. Vinton v. Welsh, (9 P.) 26 87. 36. St 1818, Ch. 109, § 1, forbidding the placing of a net " in or across Charles River," applies to a seine placed in the river, with one end attached to a boat, fastened to a stake on one side, and the other end on the other side of the river, held and drawn by men by a rope around a stake, although it does not extend quite across the river. Watertown v Draper, (4 P.) 21 165. 37. The length of time that the seine remains is immaterial. Watertown v. Draper, (4 P ) 21 165. 586 FISH; FISHING; FISHERY; H. 38 St 1819, Ch. 133, §4, forbidding "set- ting a weare " applies to repairing an old weir. Atwood v Caswell, (19 P.) 36 493. 39. Under St 1830, Ch 67, § 4, an inhabitant of Charlestown cannot, between midnight and noon, set a standing net across the whole width of Little River, and keep it there while he is dragging another net to and fro, although it is impossible to fish with a standing net in any other manner. Hanscombs. Russell, (15 G.) 81 162. 40 St 1838, Ch 19, to regulate the fishery in the Agawam and Hal L way Pond rivers, does not require the committee, chosen by the towns of Plymouth and Wareham, to watch and inspect tae rivers, and they cannot recover for their services in so doing, or for travelling expenses to make a complaint before a magis- trate for an assault on one of their number, while so doing Robinson v "Wareham, (2 G.) 68 315. 41. The Essex Company, having made and maintained a fish- way in their dam to the satis- faction of the county commissioners, as re- quired by St 1845, Ch. 163, and paid all dam ages under St 1848, Ch. 2J5, cannot be com- pelled by the legislature to make different fish-ways, notwithstanding the provision of the R. S allowing the legislature to alter, etc., corporation charters. Comm. v Essex Co., (13 G.) 79 239. 42 St 1856, Ch. 30, empowering the mayor of a city or the selectmen of a town, lying upon tide waters, to license any person to construct fish weirs, under certain conditions, does not affect the fisheries in Taunton Great River, as regulated by St. 1855, Ch. 401. Hathaway v. Thomas,-(16 G.) 82 290. 43. A fish warden, who takes a net, set unlaw- fully across a river, and keeps it for fourteen days, without instituting proceedings under R. S , Ch. 118, § 21, becomes a trespasser aS initio, and is liable to the owner of the net for its value. Russell v. Hanscomb, (15 G.) 81 166. 44 After a manufacturing company, char- tered with authority to construct a dam across a river, paying damages to the owners of fish- ing rights above, whose charter does not ex- pressly exempt it from maintaining a fish-way and is subject to alteration, etc., under the R S and the G. S. has paid the damages and constructed its dam without a fish way, but has paid no damages for injuries to fishing rights below, the legislature may constitutionally re- quire it to construct a fish way. Inland F. Com'rs v Holyoke Water P Co , 104 446; aff'd by the U. S Supreme Court, 15 Wall., 500. 45 St. 1869, Ch 384. P. S., Ch. 91, g§ 1 et seq , authorizing leases of the right of fishery in great ponds, is constitutional, and a right ac- quired thereunder is exclusive, however long a public right of fishing therein has been exercised by the public, or nny individual. Comm. v Weatherhead, 110 175. 46 An averment, in a complaint under that statute, that two persons named, were the pro- prietors of the fishes, is supported by proof that they were the lessees, although they have asso- ciated others with them. Comm. v. Weatherhead, 110 175 47. Stocking a great pond with a new species of fish, and closing the outlet with a wire screen, suffice, as an occupation of the pond, for artificially cultivating, etc., fishes therein. Comm. v. Weatherhead, 110 175 • 48. The lessee has the exclusive right of fish- ing therein, and others are punishable for so fishing, although the lessee has not occupied any part of it with inclosures, etc., or otherwise fulfilled his lease. Comm. v. Vincent, 108 441; Coram v. Weatherhead, 110 175 49. Two persons, unlawfully fishing in a great pond at the same time, from the same boat, may be joined in a complaint, under that statute, al though each was fishing on his own account. Comm. v. Weatherhead, 110 175. 50. As to what is a great pond, within that statute. Comm. v. Vincent, 108 441. 51. The statute embraces the cultivation of all kinds of useful fish, whether migratory or not. Comm. v. Vincent, 108 441. 52. The lessee's exclusive right of fishing is not limited to the porlionof the pond, which he is authorized to occupy with inclosures and appliances. Comm. a. Vincent, 108 441, 53. The terms of the lease, with respect to the lessee's right to take fish therein, are within the discretion of the commissioners. Comm. «. Vincent, 108 441. 54. The statute does not require that the hi' closures and appliances of the lessee shall be so placed, as not to debar ingress or egress at all times; and a provision that they shall not debar ingress or egress "at proper times," is unobjec- tionable. Comm. «. Vincent, 108 441. 55. The statute authorizes a lease of a pond, exceeding twenty acres in extent, in its natural condition, although it has been increased be- yond that extent by a dam, notwithstanding the provision that the proprietors of a pond, cre- ated by artificial flowage, shall control the fish eries therein. Comm. v. Tiffany, 119 300. 56. A complaint, charging the defendant with fishing in a pond, wherein fishes are artificially cultivated, "without the permission of B, the proprietor of the pond," is sufficient, without further designating the nature of B's interest. Comm. v. Tiffany, 119 300. 57. Upon an indictment under § 31 of ihe statute of 1869, (repealed? in 1873), as to catching smelt while fishing for herring_ or alewives, the defendant may be convicted if he intended to catch smelt, although he was also lawfully fly- ing for herring. Comm. «. Look, 108 452. 58. A complaint under that statute, for fishing in a pond where fishes are artificially cultivated, without the proprietor's permission, cannot he maintained, if the fishes are cultivated by lessees FISH, ETC., LT; HI— FIXTURE, I. 587 under leases signed by some only of the pro- Cumm. t. Perley, 130 469. 59. A lessee of an ice house and land, upon flie shore of a great pond, cannot maintain an ictkn against a person having; a right to fish therein, for cutting holes in the ice cleared from amw by the plaintiff for gathering, although be knew the purpose of clearing it Kowellc. Doyle, 131 474. 60. The provision in the statute of 1869, that one half of the penalty snail be paid to the informer, does not empower him to sue for the nEnahr in his own name. * "Smith ». Look, 108 139, 81. The remedy is by indictment, which need not be prosecuted by the commissioners of inland fisheries. Comm.*. Look, 108 452. S3. Upon an indictment under St 1882, Ch. 63, § 1, for unlawfully drawing a seine with intent to catch blue fish, the question whether i mesh net, as described by a witness, is a Bane, is for the jury. Comm. a. Pease, 137 576. 68. As to the effect of the interest of the sheriff of the county in the penalty, under that act, upon his credibility as a witness for the government, Comm. v. Pease, 137 576. 64. In an action qui tarn under a statute, for a penalty for unlawful fishing, but one penalty an be recovered for taking the same fish. although there were several offenders; unless each is fishing on his own account. Boutelle t. bourse, 4 431. 65. A declaration in an action qui tarn for taking fish contrary to the statute, alleging several offences at different times, and demand- ing several penalties, although open to de- murrer, is good, after verdict for one penalty only. Bomham o. Webster, 5 266. EL Shell Fish. 66. The right to take oysters is not under the control of a town, but of the selectmen. G. S., Ch. 83, §§ 11 et seq.; P. S., Ch. 91, §§ 93, . Fessenden, (14 A.) 96 124; Morris «. French, 106 326. 7. So where one in possession, under a bond for a deed, has erected, a barn upon the land, resting partly on the soil and partly on large stones imbedded in the soil, and after breach of the bond, and while he is still in possession, the barn is attached by his creditor, and removed from the land, an action lies by the owner of the land against the attaching officer. Westgate e. Wixon, 128 304. 8. And a person thus in possession cannot, as against the owner of the land, remove a build- ing so erected. King v. Johnson, (7 G.) 73 239. [For the rules applicable to cases, where a building is erected by one upon land of another, under an express or Implied agreement that it shall be the former's property, see Personal Property, II, (1)0 9. 8emMe, that window blinds, put on a par- sonage by a minister, or a stove, may be removed by him. Greenes. Maiden Par., (10 P.) 27 500. ti 10. Whether movable iron screens, covered with marble slabs,, placed over the steam radiat- ing pipes, and a grate and front piece, fitting into a fire place, but movable, pass by a deed as part of the realty, is a question for the jury, Leonard v. Stickney, 131 541. 11. An ageement between the seller and the purchaser of an article, affixed to the realty, that it shall remain the former's property until it is paid for, does not prevent it from passing to a grantee without notice. Ridgeway Stove Co. «. Way, 141 557. 12. The law is more favorable to the heir as against the executor, than to the landlord as against his tenant. / Bainway v. Cobb, v 99 457. See, also, Bliss v. Whitney, (9 A.) ;. 91 114. 13. A stone sink, weighing 200 or 250 pounds, set against the wall in a frame under the spout of a pump, and used for washing dishes, etc., with a waste pipe leading to the drain, passes to the heir, although the pump had been re- moved before the intestate's death. Bainway v. Cobb, if 99 457. 14. Manure, taken from the barnyard and piled upon the land, although not fit for incor- poration into the soil, goes to the heir. Fay v. Muzzey, (13 G.) Y 79 . 53. 15. An oral reservation of things annexed to the freehold as fixtures, made before or at the time of the delivery of the deed, is void. Noble v. Bosworth, (19 P.) "36 314. 16. But such a reservation of things annexed only constructively, such as manure, is valid. Strong*. Doyle, \il 10 92. 17. It is impossible to lay down any precise test, to determine whether machinery or other articles attached to, or used in, a building, be- come part of the realty. Where they are not obviously an integral part of the realty, the question is one of intention, whether the owner, by placing them in the building, intended them as a permanent addition to the realty. If this is the fair presumption or inference, they pass to the grantee or mortgagee. Hubbell v. East Cambridge Sav. Bk., 132 447. See, also, Winslow «. Mer- chants' Ins. Co., (4 Met.) "45 306; Pierce ».George, 108 78; McConnell «. Blood, 123 47; Allen ». Mooney, 130 165. 18. If fixtures are added to real property by one in possession, under a bond for a deed, his right to remove them, after breach of the bond, depends upon the rule between vendor and pur- chaser, not that between landlord and tenant. McLaughlin v. Nash, (14 A.) '96 136. 19. The following articles are deemed to be part of the realty, and pass by a deed, without express words: A pipe, laid over land of another, to bring water to the house; and the grantor cannot cut it off, outside of the land conveyed. Philbrick v. Ewing,/97 133. A "portable furnace," connected by pipes with stationary pipes in a house. , Ridgeway Stove Co. iiJWay, 141 557. A bell in a cupola, hung ton an axle, resting on a wooden frame. / Weston v. Weston, \J102 514. FIXTUEE, I; II. 589 A trip-hammer, attached to a block set in the around; the blower of a forge; a force pump and its pipes; shaftmg fastened by screws and UtS ' McLaughlin v. Nash, (14 A.) 93 136. Iron stoves, fixed to the brick work of the chimneys. / _ Goddard v. Chase, ' 7 432. Dye kettles firmly secured in brick work. Noble i). Bosworth, (19 P.) ^36 314. 20. The following articles are not part of the realty: A wooden ice box lined with zinc, although bo large and heavy that it must be taken to pieces to be removed. J Park v. Baker, (7 A.) 89 78. Gas fixtures, attached by screws to pipes. Towne v. Fiske, 127 125. A portable hot air furnace, resting, on the ground by its own weight, although connected with the house by a cold air box and pipes and registers. Towne v. Fiske, 127 125. Marble slabs laid upon, but not fastened to, brackets secured into the walls. Weston e. Weston, f, 102 514. A portable steam engine and boiler; vices fastened to a work bench by screws and bolts; a grindstone on a movable frame; and a emery machine fastened to the floor with bolts. McLaughlin v. Nash, (14 A.) /96 136. 21. Eails on a railroad company's road bed are part of the realty; but if, by agreement, they were to be deemed the vendor's property until paid for, they will continue to be personal property, as between him and the company, and subsequent grantees, etc., with notice; but not as to prior mortgagees, or the owner of the soil. Hunt v. Bay State Iron Co., 97 279. II. Between Landlord and Tenant. [See, also, Personal Property, I; 11.1 , 22. The law regards, with peculiar favor, the right of tenants against their landlords, to re- move articles, annexed by them to the freehold, and extends much greater indulgence to them in this respect, than to executors, remainder- men, or any other class of persons. Wall «. Hinds, (4 G.) 70 256. See, also, Taylor v. Townsend, 8 411; Whit- ings. Brastow, (4 P.) 21 310; Gaffleld «. Hapgood, (17 P.) 34 192; Miller v. Baker, (1 Met.) 42 27; Winslow a. Mer- chants' Ins. Co., (4 Met.) 45 306- King o. Johnson, (7 G.) 73 239. •^KV^f tenant mav take a ^ay trade fixtures, muchhehas annexed to the freehold, at the end ?. JUS * e ™» or during the continuance thereof; out not after he has quitted possession. „ Whi^g «. Brastow, (4 P.) 21 310; kaffield e. Hapgood, (17 P.) 34 192; Wmslow v. Merchants' Ins. Co., (4 Met.) *° 806; First Sudbury Par. o. Jones, (8 H 62 184; Wall v. Hinds, (4 G.) 70 24. So one who has erected upon leased property, a building, which he has a right to remove, renounces his right by an unreserved surrender, and it is not revived by his taking subsequently another lease. Shepard v. Spaulding, (4 Met.) 45 416; Mclver v. Estabrook, 134 550. 25. Fixtures, which a tenant may disannex and take away, are comprehended within two classes: (1.) Those put up for ornament, or the more convenient use of the premises, called domestic fixtures. (2.) Those put up for the purposes of trade, known as trade fixtures. Wall v. Hinds, (4 G.) 70 256. 26. The question whether, in a particular case, a tenant has a right to remove chattels annexed by him to the freehold, as being within those classes, is chiefly determined: (1.) By the mode of annexation, i. e., whether they can be taken down without injury to the building, or to themselves; (2.) By the intent of the annex- ation, i, e., whether they were intended f r a permanent and substantial improvement to the building, or merely for the more convenient oc- cupation of the premises for the particular purposes of the tenant. Wall v. Hinds, (4 G.) 70 256. 27. It has been ruled, that a tenant may, in the following cases, remove things attached by him to the freehold: Trees and shrubs, on land leased for a nur- sery garden. Miller v. Baker, (1 Met.| 42 27; Whit- marsh v. Walker, (1 Met\ 42 313. A padlock to fasten a corn house, and boards to put the corn in bins therein. Whiting e. Brastow, (4 P.) 21 310. Platform scales, set in an excavation in the road, and extending under the building, andup- into a room where the weights are put on. Bliss v. Whitney, (9 A ) 91 114. A cistern and sinks, set into the floor by cut- ting away the boards; water pipes, fastened to the wall by hooks, and passing through holes cut in the floors and partitions, gas pipes, similarly affixed, although some pass through wooden ornaments to the ceiling, which are cut away by their removal. Wall v. Hinds, (4 G.) 70 256. A fire frame, fixed in a fire place, with bricks between the frame and the iambs. Gaffleld v. Hapgood, (17 P.) 34 192. Pjowling alleys, with their appurtenances,, nailed to the floor. Hanrahan v. O'Reilly, 102 201. A wooden ice house, resting on wooden blocks set into the ground, upon a layer of charcoal, and banked on the outside with soil. Antoni c Belknap, 102 193. Counter-shafting, pulleys, hangers, and belts, fastened to the building; a portable boiler and steam pipes, supported by hooks; and this, al- though by the lease, the lessor agrees to sell the building to the lessee. Holbrook v. Chambcrlin, 116 155. A glass case, a case of drawers, a mirror, six feet by two, gas fixtures, screwed upon gas pipes fastened to the ceiling. Guthrie v. Jones, 108 191. Chimney pieces, wainscot, grates, furnaces, cider mills. Hanrahan v. O'Reilly, 102 201. 590 FIXTURE, II; III. Wooden cases, having shelves, drawers, and mirrors, fastened by nails driven through the backs into the plastering. Kimball v. Grand Lodge of Masons, 131 59. 28. A wooden building, fastened to the ground by numerous iron bolts, passing through the lower timbers into rocks in tne ground, with a brick chimney and furnace, the founda- tion of which is set into the ground, is a fixture, which, if put in by a tenant, and not removed during his term, belongs to the owner of the realty. Talbot v. "Whipple, (14 A.) 96 177. 29. So is a machine called a cullender, placed on a solid foundation of stone, the removal of which would leave large holes In the first and second floors, and so fastened to the frame of the building by iron bolts, that it could not be taken away without damage. Talbot v. Whipple, (14 A.) 96 177. See, also, Eaddin v. Arnold, 116 270. 30. So are two large counters, bought by the tenant of an eating room, one an oyster and lunch counter, the other a bar, each fastened to thefloor by nails and iron knees. Guthrie v. Jones, 108 191. 31. Trade fixtures of this character, and thus annexed to the realty, which were put in by the tenant for use in his business, and not to im- prove the inheritance, may be converted back into personal property by the tenant, at the end of, or during, his term. But as long as they remain thus annexed, they are part of the realty; and the landlord is not liable in trover, for preventing the tenant from removing them. Guthrie v. Jones, 108 191. See, also, Gaffleld v. Hapgood, (17 P.) 34 192; Bliss v. Whitney, (9 A.) 91 114. 3-2. A tenant's right to remove a trade fixture annexed to the realty, such as a building, is forfeited by his neglect to avail himself of it for six weeks after his lease expires. Burks Hollis, 98 55. 33 But a tenant at sufferance has a reason- able time to remove his fixtures; and where he owned an ice house full of ice, and the build- ing was removed as soon as the ice could be taken away without loss, after demand of pos- session, it is for the jury to say, whether it was removed in a reasonable time, although nearly two months elapsed. Antoni v. Belknap, 102 193. 34. Where a tenant, who has erected trade fixtures before the expiration of his term, takes a new lease, containing no reference to the old lease or the fixtures, wherein he covenants to deliver up the premises in as good condition "as the same now are," he loses his right to remove the fixtures by the expiration of the first term. Watriss ■». Cambridge First Nat. Bk., 124 571. 35. A tenant is not estopped, as against his landlord's grantee, from removing trade fixtures before the end of his term, by bidding at an auction sale of the building, without disclosing his claim. Hanrahan v. O'Beilly, 102 201. 36 For an unauthorized removal of fixtures, contiary to a special agreement, the landlord's remedy, is by action on the agreement, not on the covenant against waste in the lease Wall v. Hinds, (4 G.) 70 256. 37 An action does not lie against a landlord for breach of the covenant for quiet enjoyment where the out going tenant took away cases' etc, which the lessee supposed were part of the leased premises, in consequence of which it was necessary to put in a new base-board, and to paint the wall where they stood. Kimball «. Grand Lodge of Masons, lol 59. 38. Between landlord and tenant, manure, made in the course of husbandry, upon a farm' passes as appurtenant to the realty, in the ab- sence of an express stipulation. Daniels v. Pond, (21 P.) 38 367- Lewis «. Lyman, (22 P.) 39 437. 39. But if it is. so made or held, as to be the property of the outgoing tenant, it does not be- come realty by being left by him on the pre- mises, at the expiration of his lease. Fletcher ®. Herring, 112 382. m. Between Mortgagor and Mortgagee. [See,also,arefe,I; Personal Property, Ij n.l 40. Fixtures, placed in the building by the mortgagor, after the execution of a mortgage, become part of the realty, and cannot be re- moved or disposed of by him, as against the mortgagee. Union Bk. v. Emerson, ^15 159; Winslow v. Merchants' Ins. Co., (4 Met.) ^45 306; Butler v. Page, (7 Met.) ^48 40; Cole v. Stewart, (11 C.) J 65 181; King v. Johnson, (7 G.) 73 239; Smith Paper Co. v. Servin, 130 511. 41. And trespass lies, by the mortgagee not in possession, against one who, by the mort- gagor's authority, removes from the land a building erected by the mortgagor, after the execution of the mortgage. ■ Cole v. Stewart, (ll C.) 65 181. 42 But machinery, which may be easily dis- connected, and used in any other building, does not pass. / Gale v. Ward, 14 352. 43. A mortgagee, after decree upon the mort- gagor's bill to redeem, and before possession taken, may remove a building erected by him on the land, with his own materials, and not so connected with the soil, that it cannot be re- moved without prejudice to it. Taylor*. Townsend, ^8 411. 44. A machine, weighing about a ton, was placed in a shop, which the owner intended to hire, under an agreement for storage thereof, until used by the owner, and was fastened to the floor by screws, and braced to the beams above, so jhat it could not be removed without some injury. Before it was used by its owner, the owner of the land mortgaged the land and building, to one who was ignorant of the agree- ment between him and the owner of the ma- chine. It was held that the machine passed by the mortgage, as part of the realty. FIXTURE, III— FLATS. 591 Southbridge Sav. Bk. e. Stevens Tool Co 130 547. See, also, Hunt v. Bay- State Iron Co., 97 279; Thompson «. Vinton, 121 139; McConnell v. Blood, 123 47; Southbridge Sav. Bk. i>. Exeter Works 127 542; Smith Paper Co. v. gervin' 130 511; Hubbell ». E. Cam- bridge'Sav. Bk., 132 447. 45. A chattel mortgage on machinery was given in contemplation of the machinery being Annexed to the building; and after it was an- nexed, a mortgage was given upon the land. The second mortgagee holds the machinery against the first. Pierce v. George, 108 78. 46. As to what machinery is covered by a mortgage of the realty, see the cases cited under art. 44; and, ante, I; also Gale ». Ward, "14 352; Winslow v. Merchants' Ins. Co., (4 Met.) i45 306; Lynde v. Rowe, (12 A,) 94 100; Bar- tholomew v. Hamilton, 105 239; Pierce 8. Georgo, 108 78. 47. One who, under a contract with the owner and the mortgagee, that it should be his property until paid for, put into a mill a machine, so that it became annexed to the realty, and upon default of payment severed and removed it, may hold it against the subse- quent assignee of the mortgage. Bartholomew s. Hamilton, 105 239. 48. But one who thus erects fixtures, under such a contract with the mortgagor only, is not entitled to take them, as against the assignee of the mortgage with notice of the contract, who takes possession, and afterwards purchases the equity of redemption. Clary v. Owen, (15 G.) 81 522. 49. If fixtures are added, after the mort- gage, by a tenant at will of the mortgagor, his right to remove them, after entry by the mort- gagee, depends upon the rule between mortgagor and mortgagee, not upon that between landlord and tenant, Lynde v. Bowe, (12 A.) 94 100. . 50. Where a building upon mortgaged land is partly destroyed by fire, the mortgagor can- not sell such parts as are saved; and if he does so, and the mortgagee enters and forbids pay- ment, the mortgagor cannot recover the price. Wilmarth «. Bancroft, (10 A.) 92 o48. 51 Whether a portable furnace, resting on a Drick foundation, is part of the realty as be- tween mortgagor and mortgagee, is a question oi tact depending upon intention. Allen v. Mooney, 130 155. 52. Machines, separately constructed, adapted ior use , m any building, and secured in position Dy bolts, screws, etc., do not necessarily, and, hmf ^J?™- P^ 38 b y a mortgage of the Building and flie land. • Maguire „ Park, 140 21; Carpenter "■Walker, 140 416. Jftnii 1° V a Mer and engine, weighing tin, S n 2V ttaohed t0 the realty only by bv r fmnl ed Voting, and removable only the ™T g a sb u ed tuilt t0 P rotec t toem from ^CbuUding 157 enlarging the enttanCe t0 Carpenter «. Walker, 140 416. 5, Flats. LSee, also. Adverse Possession ; Deed ; Estop- pel i Fish, etc. Nuisance; Sea Shore; Wharf. For the rules relating to a description in a convey- ance, as affecting the question whether flats pass, see Boundary Line, 11, (3); Deed III, (5). As to damages to flats from laying out a railroad, see Bailroad, II, (7).] 1. The owner of a tide mill, who is also riparian proprietor of flats between his mill and navigable water, from which the tide wholly ebbs, has no right to have his flats kept open and unobstructed, as against the public or adjoining proprietors, who may build structures to the extent of 100 rods, which obstruct the tide, if they do not wholly cut off the access of other proprietors to their nouses and lands. Davidson v. Boston & M. R. R., (3 C.) 57 91 2. The owner of sea shore is entitled to a wreck cast upon his shore, and not reclaimed, and may recover the value from a stranger, who enters upon his shore and takes it. Barker i>. Bates, (13 P.) 30 255. 3. The owner of a wharf and dock, who has dredged out a channel from his dock over the flats of others, openly and with a claim of right, cannot recover damages against a city for the discharging of a sewer into his dock, whereby the channel was obstructed. Breeds. Lynn, 126 367. 4. A city, authorized by statute to lay out sewers through any streets or private lands, has no right to extend such a sewer by a structure upon flats owned by an individual, by special grant from the legislature, below low water mark. Haskell v. New Bedford, 108 208. 5. For a full history of the colony ordinance of 1647, and preceding and subsequent legisla- tion, affecting flats, see Comm. i> Roxbury, (9 G.) 75 note, pp. 503-528. 6. For a full statement of the common law rules, and the rulings of the courts of this Commonwealth respecting flats, to the year 1857, see Comm. ■». Roxbury, (9 G.) 75 note, pp. 515 to 525.* See, also, per Shaw, Ch. J., in Comm. 7 The best possible analysis of the former cases would be a simple re- print of that portion of the learned and able re- porter's note. 592 FLATS. 1683, staking out for the town's use certain portions, and granting others to abutters, on condition of repairing the street; and from the repetition of this condition in an order of the town in 1736, reducing the width of the street. Boston v. Kichardson, 105 351. 9. A natural creek or channel within 100 rods of high water mark, from which the tide never entirely ebbs, limits the right to flats under the colony ordinance of 1647. Atty.-Gen'l v. Boston Wharf Co., (12 G.) 78 553. 10. An agreement among proprietors of the shore, for a division of the flats appurtenant to their estates, may be presumed from a long series of acts and conveyances by them, recog- nized by statutes. Atty.-Gen'l v. Boston Wharf Co,, (12 G.) 78 553. 11. General rules for the division of flats, among coterminous proprietors of land bound- ing upon the seashore, must yield to lines estab- lished by a partition affirmed by the court, and acquiesced in by the parties, for 35 successive years. Adams v. Boston Wharf Co., (10 G.) 76 521. 12. The nearest natural creek or channel, within 100 rods of high water mark, influences the direction of the division lines between the flats of coterminous estates in a cove; and where such a creek or channel is substantially parallel with the shore, the division lines are to be made to it in the most direct course. Atty.-Gen'l v. Boston Wharf Co., (12 G.) 78 553. 13. The division of flats, among the proprie- tors of uplands, bounding on a cove from which the tide never wholly ebbs, must be made, by giving each proprietor the same proportion in width, at extreme low water mark, as at ordinary high water mark, and drawing the dividing lines straight from the inner to the outer line. Wonson v. Wonson, (14 A.) 96 71. 14 In proceedings under St. 1864, Ch. 306, for the division of flats, any question of title by disseisin which arises should be tried and de- termined, before the appointment of commis- sioners. Wonson v. Wonson, (14 A.) 96 71. 15. In such proceedings for the division of flats in a cove, the boundaries of the flats are to be ascertained, where there is nothing in the form of the adjoining shore to affect it, by drawing a base line across the cove at high water mark, and side lines at each end of the base line, and at right angles with it to low water mark; but if either side line would con- flict with a similar side line of the cove next adjoining, the dividing line between the two coves is to be projected at an equal angle to the base line of each cove. Wonson «. Wonson, (14 A.) 96 71. 16. Where the shore line of a tide water cove does not depart much from a straight line, the side and intermediate lines may be run from the ends of the division lines of the uplands, to low water mark, even if the sea never wholly ebbs beyond the base line, provided the situa- tion and shape of the channel do not require a different mode of division. Stone v. Boston Steel and Iron Co (li A.) 96 230. " u 17. For rulings relating to the mode of divis- ion of flats in particular cases, see Atty.-Gen'l ». Boston W. Co., (12 G.) 78 553; Winnisimmet Co. •». Wyman til A.) 93 432; Stone v. Boston S. & I Co., (14 A.) 96 230. j.8. Where commissioners to set off dower, and make partition among heirs, set off to the widow a lot on a tide water cove, describing it as running to "the shore," and thence "to B's shore," with privilege to have and take one third of the sea weed, which " may wash up on the shore of the lots by the cove and river;" and set off the remainder of the property in such a way, that the space between high and low water mark, in front of the widow's lot, was not otherwise disposed of, it was held, that her title extended to low water mark. Hathaway v. Wilson, 123 359. 19. Upon a petition under St. 1864, Ch. 306, by the owners of lands abutting on a harbor, where the court, after the enactment of St. 1870, Ch. 348, appointed commissioners, who made a return in 1872, it was held, that the right to object to the repeal of the statute of 1864, by St. 1871, Ch. 338, was waived by not being invoked till after St. 1872, Ch. 107, had saved cases pending at the time of the repeal. Breed v. Breed, 110 532. 20. Also, that under the statute of 1871, a title, asserted by one of the respondents against one of the petitioners, to a portion of the flats by deed or prescription, could not be tried, and would not be affected by the acceptance of the report, and, as no other party objected, the re port would be accepted. Breed ». Breed, 117 593. _ 21. Under the statute of 1871, if no excep- tion is taken to the commissioners' report, and it is proved and ordered to be recorded, the ob- jection is not open, upon the apportionment of costs, that the commissioners have not fixed the boundaries of the flats wholly below mean high water mark, and not adjacent to upland, held by the same petitioner. In re King, 129 413. 22. The costs of such proceedings are to be apportioned according to the market value of the several owners' interests, not according to the area of the flats. In re King, 129 413. 23. Under St. 1886, Ch. 149, §§ 4, 5; P. 8., Ch. 19, §§ 8, 17, one is not exempt from the supervision of the harbor commissioners, who, before the passage of the statute, had begun the work of filling up his flats, but the extent of the flats, which he intended to fill up, had not been specifically defined by a legislative act, or by a complete and distinct line of wall or piles. Atty.-Gen'l ». Boston & L. Railroad, 118 345. 24. The provisions of the statute of 1866, re- quiring persons filling up flats to submit then- plans to the harbor commissioners, and to make compensation for tide water displaced, do not apply to work done by the mayor and alder- FLATS— FOKCIBLE ENTEY AND DETAINER, I. 593 men of Cambridge and Somerville, under St. 1873, Atty.°Gen'l v. Cambridge, 119 518. 25 The legislature may establish wharf lines In Boston harbor, bat such lines do not affect wharves erected before the statute was passed. Comm. v. Alger, (7 C.) 61 53. 26 St. 1845, Ch. 234, § 2, only establishes the boundary lines of the flats of the Boston and Lowell Railroad Company, and confers no new title, right, or authority upon the com- Atty.-Gen'l v. Boston & L. R. R., 118 345. 27. Where flats covered by the sea are granted by the Commonwealth to one, who agrees to nil them within a certain time, the public right of user for navigation is not extinguished, until they are filled, although the grant was by war- ranty deed, with a covenant against incum- Boston & H. S. B. Co. «. Munson, 117 34. 28. An act establishing a mill corporation, with authority to use a portion of the flats of the Commonwealth as a basin, etc., does not extinguish the Commonwealth's title. Comm. ». Roxbury, (9 G.) 75 451. 29. Perambulations of the boundaries _ of towns by selectmen are not evidence against the Commonwealth of the title to flats in those towns. Comm. e. Roxbury, (9 G.) 75 451. 30. "Where the boundary between two towns, as settled by a committee, was defined by metes and bounds, and the proceedings were ratified by the legislature, this does not affect the title of the Commonwealth to-the sea shore in one of the towns. Comm. v. Roxbury, (9 G.) 75 451. 31. The order of the general court of 1636, as to Dorchester and Roxbury, did not grant to the town of Roxbury the flats between Boston hounds and Dorchester, more than one hundred rods below high water mark. Comm. i). Roxbury, (9 G.) 75 451. 32. A disseisin of flats may be made by an appropriate occupation, as by entering and fill- ing them, or building a wharf, and using the adjoining flats for laying vessels thereat; but passing over them with vessels, or using them by vessels for access to and egress from a wharf, is matter of common right under the ordinance of 1647, and neither a disseisin nor a Wheeler v. Stone, (1 C.) 55 313. See, also, Hamblet v. Francis, 4 75. 33. Cutting grass every year on flats, covered part of the time by the tide, is not a disseisin. Comm. v. Roxbury, (9 G.) 75 451. 34. Not is a possession acquired by removing sea weed for a number of years, and allowing otters to do so, sufficient to enable trespass to be maintained. Tappan v. Burnham, (8 A.) 90 65. 35. Digging thereon more than 30 years Detore the trial, and occasionally since, is but shgnt evidence of usage. Porters. Sullivan, (7 G.) 73 441. Vol. 1—75 36. Evidence of the maintenance by a town or city of a fish house and engine house at the end of a highway next the sea, and of repairing a cap-sill resting upon a stone wall at the head of the dock, is competent to show a disseisin of the flats there, at least to the extent occupied by the buildings. Boston v. Richardson, 105 351. 37. For a case, where a disseissin of, and ad- verse possession for 20 years to flats, was deemed to be sufficiently established by a tide mill, canal, etc., see Eastern R. R. Co. v. Allen, 135 13. Flowage. [See Covenant, II, (4); Cranberry Meadow; Deed, III, (4), (D); Mill and Mill Dam; Water Course.] Food. [See Provisions.] Foot way. [See Highway, I, (1); VI; and id. art. 75; Eail- road,III, (3).] Forcible entry and detainer. I. Civil Proceedings. II. Indictment. IFor rulings respecting abatement, appeal, and tevrefaeias, see those titles, as to the statutory pro- ceedings by a landlord to recover the premises, see Landlord and Tenant, VII, (4); by a purchaser under foreclosure se Mortgage, V, (6).] I. Civil Proceedings. 1. For a history and explanation of the suc- cessive statutes on this subject, see Hodgkins v. Price, 132 196. 2. The civil process, provided for by statute, is an action by which one, who has been in the possession and enjoyment of real property, and who has been forcibly deprived of the pos- session of it, may be restored to the possession and enjoyment. Except in the case of land- lords, and mortgagees, under St. 1879, Ch. 237; P. S., Ch. 175, §§ 1, et seq., the process has never been extended to try the title or right of possession, in favor of one who has never been in possession; it is not intended to take the place of a writ of enfry to try the title. Williams v. McGafflgan, 132 122. See, also, Boyle v. Boyle, 121 85; Woodside v. Ridgeway, 126 292. 3. Where A, claiming title under a deed from B, who was in possession, and denied his right, in attempting to gain possession, crossed the threshold, and was there resisted, and made no further progress, he gained no possession which enabled him to maintain the action. Williams v. McGafflgan, 132 122. See, also, Lawton v. Savage, 136 111. 594 FORCIBLE ENTRY, ETC., I; II— FOREIGN CONSUL, ETC. 4. So where A leased a building to B, and it Was destroyed by fire, and B abandoned posses- sion, whereupon A conveyed the land to 0, who erected a new building thereupon, and I), to whom B had assigned his lease, several years afterwards, but during the term, entered with a force of men at an early hour in the morning, but was ejected by C's tenants upon their arri- val, D cannot maintain the action. Hodgkins «. Price, 132 196. 5. But where a possession, although thus forcibly gained, is maintained peaceably, and afterwards the person ousted enters forcibly, and ejects the tenant of the person thus in pos- session, the latter may maintain the action. Lawton v. Savage, 136 111. 6. A mere refusal to deliver possession, or to leave the premises, after orders from the owner to do so, will not warrant the statutory proceed- ing: the refusal must be attended with some apparent violence, in deed or word, such as might excite terror, and prevent the owner from claiming his rights. Comm. «. Dudley, 10 403; Saunders v. Robinson, (5 Met.) 46 343; Benedict v. Hart, (1 0.) 55 487; Pike v. Witt, 104 595. 7. And the same kind and degree of force are necessary in forcible detainer, as in forcible entry. Comm. v. Dudley, 10 403. 8. A clause in a lease, authorizing the expul- sion of a tenant, by force, on a breach of his covenant, does not contravene the statute re- quiring an entry to be made peaceably; but the lessor, in expelling the tenant, cannot lawfully use greater force than would sustain a plea of molliter manus Fifty Associates v. Howland, (5 C.) 59 214. 9. A mortgagee, who has entered to foreclose, may maintain the statutory process against one who has entered peaceably, but maintains possession by force. Mitchell v. Shanley, (12 G.) 78 206. 10. But not where his attempt to enter was repelled by force. Walker v Thayer. 113 36. 11 Or where, for any other cause, he has not taken actual possession Boyle v. Boyle, 121 85 See, also, Hastings t>. Pratt. (8 0.) 62 121 12. So before the st. of 1 879, as to a purchaser on foreclosure, where neither he nor the mort- gagee has taken possession Boyle ». Boyle, 121 85. i3 So as to a lessee of such a purchaser. Woodside v. Ridgeway, 126 292. 14. Senile, that the statutory process will not lie against a person, for entering upon the plain- tiff's land to levy an execution against another. Comm v Bigelow, (3 P ) 20 81. 15. If the defendant seeks to justify his pos- session, under the authority of some other per- son than the plaintiff, the burden to prove that person's title is upon him. Hogan v. Harley, (8 A ) 90 525 16. The possession of a tenant at will is not Ihc possession of the lessor, so as to enable him to maintain forcible entry and detainer against a stranger, for expelling the tenant. Comm. v. Bigelow, (3 P.) 20 81. See, also, Alexander v. Carew, (13 A.) 95 70.' 17. One tenant in common may maintain the process against his co-tenant. Presbreyv. Presbrey, (13 A.) 95 281. King v. Dickerman, (11 G.) 77 480, overruled pro tanto. 18. Where a writ of restitution has been executed, and the proceedings are quashed by the supreme judicial court upon certiorari, that court will award a writ of re-restitution Comm. v. Bigelow, (3 P.) 20 31 II. Indictment. 19. The remedy for an unlawful forcible entry is two-fold, by indictment at common law, and by proceedings under the statute. Comm. v. Shattuck, (4 C.) 58 141. 20. A mere unlawful entry upon the land of another, with technical force and arms, but amounting to no more than a trespass, is not indictable. There must be some circumstances tending to excite terror in the occupant, and to prevent him from asserting his right. Comm. v. Shattuck, (4 C.) 58 141. 21. In the indictment, it is sufficient to charge that tne oifence was committed unlawfully, " with force and arms, and with a strong hand;" the words "with n strong hand" imply force and violence. Comm. . Price, (10 G.) 76 472. 23. The word " pass,'' as used in the statute, relating to bank bills, means to deliver as money, or as a known and conventional substitute for money. Hopkins * Comm., (3 Met.) 44 460. 24. The possession, in this State, of ten coun- terfeit bank bills, with intent to pass them in another state, is an offence within St. 1804, Ch. 120 See now P. S., Ch. 204, § 5. Comm. v. Cone, 2 132. 25 Under that statute, it matters not that the ten counterfeit bills are of different descriptions, denominations, or dates, or purport to be bills of different banks Brown v. Comm., 8 59; Comm. v. Houghton, 8 107; Comm. ». Whitmarsh, (4P) 21 233. 26 Oi that tne defendant did not know that they were false at the time of the fabrication, if he knew that they were false at the time when he had them, with intent to pass them. Brown » Comm , 8 59; Comm v. Houghton.. 8 107 27. It makes no difference, that a forged bill is of a different denomination from that of any genuine bills issued by the bank. Comm. v. Smith, (7 P.) 24 137. 28. It is an offence to have a forged bill in one's possession, with intent to pass it as money, or that the receiver should pass it as money! although at a discount, and although, as be- tween the defendant and the first receiver, it was not passed as true. Hopkins v. Comm., (3 Met.) 44 460. 29. An allegation in an indictment, describ- ing the bank as an incorporated company, duly established in another state, is sustained, if the bank was a national bank located in that state. Comm. v. Hall, 97 570. See, also, Comm. ». Tenney, 97 50. 30. It is no defence to a charge of having possession of forged bank notes, with intent to pass them, that the defendant intended to pass them without the Commonwealth. Comm. v. Cone, 2 132; Comm. v.. Price, (10 G.) 76 472. 31 . And a general allegation of intent to pass, is supported by proof of intent to pass else- where. Comm. v. Price, (10 G.) 76 472. 32. Uttering by an innocent agent is uttering; by the employer. Comm. e. Hill, 11 136. 33. So knowing and assenting to forgery by another, is forgery by the principal. Comm. -v. Stevens, 10 181. 84. Where the indictment sets forth a bond,, without approval, on dissolving an attachment, it is no variance to prove such a bond with an approval. Comm. v. Costello, 120 358. 35. It is no variance, if the residence of the- maker of the forged promissory note is sub- joined to the pretended signature, without be- ing contained in the indictment, it not appear- ing when the addition was written. Comm. v. Henry, 118 460. 36. Or where the person, to whom the indict- ment alleges that the forged instrument was de- livered, etc., was the mere servant of another. Comm. v. Starr, (4 A.) 86 301. 37. And if the defendant did not know that he was a servant, the jury may find an intent to defraud him. Comm. v. Starr, (4 A.) 86 301. 38. On an indictment for forging an indorser's name to the defendant's own bill, the jury may find, upon the mere production of the bill, that the indorser's name was written after the de- fendant had written his own name as drawer, acceptor, and first indorser. Comm. o. Butterick, 100 12. 39. Possession of a forged instrument, by one seeking to derive a benefit under it, is evidence tending to prove that he forged it, or caused it to be forged Comm. v. Talbot, (2 A.) 84 161. 40 An indictment for knowingly having in possession a forged note, is supported by evi- dence of an altered genuine note. Comm. v. Woods, (10 G.) 76 477. 41. On the trial of an indictment charging the defendant, in three counts, with uttering three notes of the same tenor, it is not necessary FORGEKY, ETC., I; II. 597 for the prosecuting officer, on producing either tints to specify under which count it is offered. D ' Comm. v. Miller, (3 C.) 57 243. 43. On such an indictment, where the person ■whose name was forged, testified that he gave the defendant one, and only one, note of such tenor, and that the notes given in the course of his business were entered in his books by his «lerk; and the clerk testified that he knew of one note, corresponding to those set forth in the indictment, the prosecuting officer may ask the •clerk if he knew of his principal giving the de- fendant "any other such note." Comm. ii. Miller, (3 C.) 57 343. 43. And where the defendant proved that there were confidential transactions between him and the supposed maker, in which the lat- ter had given him notes, not intended to be en- tered on the books, the prosecuting officer may show that three notes, not so entered, were taken up by the defendant before maturity. Comm. v. Miller, (3C.) 57 243. 44. To prove that the defendant had guilty knowledge that a bank bill was counterfeit, proof that he passed other counterfeit bills is Comm. v. Bigeiow, (8 Met.) 49 235. See, also, Comm. 1>. Stone, (4 Met.) 45 43. 45. But his conversation, after he had passed it, is not admissible to prove that it was coun- terfeit, without the production of the bill, or proof that he has it, or of its destruction. Comm, v. Bigeiow, (8 Met.) 49 235. 46. See further, as to the admissibility of proof of other similar acts at other times, and of other documents as standards of comparison, upon a question of forgery. Comm. «. Miller, (3 C.) 57 243; Comm. v. Price, (10 G.) 76 472; Costelo *. Crowell, 139 588. . l&"& upon the general question of the admissi- bility ol such proofs, see Evidence, I, (3); IX, (2).l 47. Upon an indictment for passing counter- feit bank bills, evidence is competent of previous declarations of the defendant, showing that he was engaged in the-business of passing counter- leitmoney; but not of the contents of a letter containing such money, received by him at the post-office, and taken from him before he had opened it. Comm. v. Edgerly. (10 A.) 92 184. 48. Evidence is competent, for the purpose ot showing guilty knowledge, that he had been employed m printing parts of genuine bank rails, and that, on being arrested, he swallowed a counterfeit bill, similar to those previously passed by him. Comm. v. Hall, (4 A.) 86 305. m! 9 ;^ 8 \° ? e efficiency of proof, where the wen ty f tJle e 0Unterfeit bflI is m questioili K nas wsenin the magistrate's possession iot two or three weeks, and there are no artifi- cial marks to identify it. Comm. v. Kinison, 4 646; Comm. v. James. (1 p,) i 8 375 tn^U? gorged instrument nas been secreted io protect the defendant, although not by him. all»S' t m ? de b F the P erson whose- name is isSrt^ bee i forged, from the original, Comm. «. Snell, 3 82. Comm. «. Hutchinson, 1 7, explained in this case. 51. The person whose name is alleged to have been forged, is competent to prove the forgery and the destruction of the instrument, although a civil action is pending against him upon the instrument. Comm v. Peck, (1 Met.) 42 428. See, also, Comm. n. Hutchinson, 1 7; Comm. v Snell, 3 82; Comm. «. Waite, 5 261. 52. And where he testifies that he had never given any one his signature in blank, the testi- mony of a witness, that he saw a blank paper indorsed by the former, upon which a note was written in the witness's presence, is inadmissible to contradict him, without proof of its genuine- Comm. v. Miller, (3 C.) 57 243 53. A forged promissory note, with a forged indorsement, will support an indictment for forging the note. Comm. v. Ward, 2 397. 54. An indictment for uttering a forged promissory note, payable to A's order, is sup- ported by evidence of uttering such a note, indorsed by A. Comm. n. Adams, (7 Met.) 48 50. 55. An indictment for forging a note in a certain county, is not proved by evidence of uttering it in that county. Comm. «. Parmenter, (5 P.) 22 279. 56. An allegation that an instrument was forged, is supported by proof of forgery of any material part thereof. Comm. n. Butterick, 100 12. 57. On an indictment for uttering a counter, feit note on a bank without the Commonwealth, although within forty miles of the place of trial, the forgery may be proved by witnesses, accustomed to receive and pay out genuine bills of the bank, one of whom had presented such bills to the bank, which were paid by the bank as genuine. Comm. v. Carey, (2 P.) 19 47. 58. Proof that when a witness last saw the president of the bank, the latter said that his wife had bought a place in a town more than 40 miles from the place of trial, and his family were going there to reside, is sufficient, under the statute, to dispense with the testimony of the president, and permit the forgery of his signature to be proved by others. Comm. ii. Taylor, (5 C.) 59 605. II. COUXTERFEITING COIN. 59. Gold coins, made within a state, contrary to the United States constitution, are not within the statute against counterfeiting. Comm. v. Bond, (1 G.) 67 564. 60. The statute, as to having in possession ten similar pieces of counterfeit coin, covers a case where all are not of the same kind or denomi- nation. Brown v. Comm., 8 59. 598 FORGEEY, ETC., II— FORMEK ADJUDICATION, I. 61. Under an indictment, charging the pos- session of more than ten pieces, the defendant may be convicted and sentenced for having less than ten. Comm. v. Griffin, (21 P.) 38 523. See, also, Lamed v. Comm., (12 Met.) 53 240. 62. The statute as to having in possession an instrument "adapted and designed" to make counterfeit coin, applies to an instrument adapted, etc., to make one side only of such a coin, or any part thereof. Comm. v. Kent, (6 Met.) 47 221. 63. The defendant, indicted for having such an instrument in his possession, cannot give in evidence his declaration, to the artificer, when he ordered it, of the purpose for which he had it made. Comm. v. Kent, (6 Met.) 47 221. 64. An indictment, in the general language of the statute, is supported by proof of guilty possession of a counterfeit Mexican dollar. Comm. v. Stearns, (10 Met.) 51 256. 65. Proof of passing similar counterfeit coins is admissible upon the question of intent, although indictments therefor are pending. Comm. v. Stearns, (10 Met.) 51 256. See, also, Comm. «. Stone, (4 Met.) 45 43. 66 One, convicted at the same term, upon two indictments charging him with uttering counter- feit coin, and one indictment charging him with guilty possession of ten counterfeit pieces, may be adjudged to be a common utterer, and a single sentence as such may be passed upon him. Murray v. Comm., (13 Met.) 54 514. 67. Our statute against counterfeiting is not a violation of the TJ. S. constitution, as regards its application to either foreign or domestic coins. Comm. ■» Fuller, (8 Met.) 49 313. Former adjudication. I. In a criminal Cause. II. In a civil Cause. (1 ) General rules. (2.) Whether the former judgment was on the merits. (3.) Validity of the former judgment (4.) Identity of the causes of action. (5.) Questions as to parties. [For rulings in cases under the liquor laws, see Intoxicating Liquors, V, (5). As to the conclu- siveness of a judgment between parties and privies, see Estoppel, II, (1). For various rulings as to the effect of a decree of the probate court, see Probate Court. II; Will, 111,(1). See, also, generally Con- stitutional Law II, (6); Divorce, V, (1); Evi- dence, VIII, (2); Judgment; Partition, III, (3). I. In a criminal Cause. 1. The constitutional provision, that no person shall be twice put in jeopardy by the same offence, is equivalent to the common law prin- ciple, that no person shall be twice tried for the same offence. Comm. ■». Roby, (12 P.) 29 496. 2. Unless the first indictment was r such, that the prisoner might have been convicted upon it, by proof of the facts contained in the second, an acquittal or conviction on the first is no bar to the second. Comm. v. Roby, (12 P.) 29 496; Comm. ii. Bubser, (14 G.) 80 83. 3. Where a jury has been sworn to try the issue, and the trial has been begun, the defend- ant's jeopardy has been begun, and the govern- ment cannot, without his assent, enter a noUe prosequi, and afterwards subject him to another trial. Comm. ». SgoU, 121 33; Comm. v. McCormick, 130 61. See, also, Comm. ». Tuck, (20 P.) 37 356; Comm. »: Kimball, (7 G.) 73 328. 4. But where a pending trial comes to an end, by the sickness or death of a juror, or the illness of the judge, or the expiration of the term, or the impossibility of obtaining an agree- ment of the jury within a reasonable time, or any other physical or mor. 1 necessity arising, without the fault of the government, the de- fendant may be again tried. Comm. v. McCormick, 130 61. See, also, Comm. v. Bowden, 9 494; Comm. *>. Purchase, (2 P.) 19 521; Comm. v. Roby, (12 P.) 29 496; Comm. v. Sholes, (13 A.) 95 554. 5. So where the judge, finding that a juror was surety upon the recognizance of one of the defendants, stopped the trial for that reason. Comm. v. McCormick, 130 61. 6. A conviction upon an assault with intent to murder, which is a misdemeanor, cannot be pleaded in bar to an indictment for murder, which is a felony; for a person on trial for one could not be convicted of the other. Comm. ■». Roby, (12 P.) 29 496. 7. Thus a burglary, charged as a burglarious breaking, and stealing certain goods, and a bur- glary with intent to steal, are distinct offences. Comm. v. Roby, (12 P.) 29 496. 8. And an acquittal upon a charge of bur- glary, with intent to steal the goods of A, is no defence to an'indictment for burglary, with in- tent to steal the goods of B. Comm. «. Hope, (22 P.) 39 1; Comm. v. Hoffman, 121 369. 9. An acquittal upon an indictment for a nuisance in keeping a tenement for the sale of intoxicating liquors, is no defence to an indict- ment for being a common seller of such liquors at the same time and place. Comm. v. Bubser, (14 G.) 80 83. 10. Nor upon an indictment for receiving stolen goods, to another indictment for the same offence, without proof that they are the same. Comm. v. Sutherland, 109 342, ■ 11. Nor upon an indictment for embezzling one article of property, to an indictment for embezzling another at the same time. Comm. v. Butterick, 100 1. FOEMEE ADJUDICATION, I. 599 12. Nor upon an indictment for receiving stolen goods of A, to an indictment for receiv- ing stolen goods of B, from the same thief. Comm. v. Andrews, 2 409. • 13. Nor upon an indnctment for setting fire to the barn of A and B, to an indictment for Betting Are 1o the barn of A and C, although it was the same offence. Comm. v. Wade, (17 P.) 34 395. 14. Nor upon an indictment for embezzling cloth and other materials, from which overcoats are made, to an indictment for embezzling over- coats, although the offence was the same. Comm. v. Clair, (7 A.) 89 525. 15. Nor upon an indictment for larceny of certain bonds, to an indictment for fraudulent conversion of the same bonds, if it does not appear on the second indictment that the defend- ant was not intrusted with the custody of them. Comm. v. Tenney, 97 50. 16. Nor upon an indictment for drawing and depositing stones upon a highway, to a prose- . cution for building a stone wall upon the same ^highway r? White v. Bay, (8 P.) 25 467. 17. Nor upon an indictment, under G. S., Ch. 63, § 107, for obstructing an engine on a rail- road, by putting a rail across the track, to an indictment, under § 108, for putting the rail across the track, with intent to . obstruct the passage of the engine. Comm. ii. Bakeman, 105 53. [See P. S., Ch. 112, 88 203, 204. 1 18. Where proof of the same fact is necessary for a conviction, under either of two statutes, yet, if each requires proof a different additional fact, an acquittal or conviction under one is not a bar to an indictment under the other. Moreyu. Comm., 108 433. 19. Thus autre fois convict of lewd and las- civious cohabitation, is no bar to an indictment for adultery, although the persons are the same. Morey v. Comm. 108 433. " 20. A conviction for keeping a shop open on the Lord's day, is no bar to an indictment for a nuisance, in keeping it open, at the same time, for the illegal sale of intoxicating liquors. Comm. o. Shea, (14 G.) 80 386. 21. A conviction or acquittal upon an indict- ment, under R. S., Ch. 126, § 5, for burning a building, which does not allege that the build- ing was "other than is mentioned" in « 3 of the same chapter, is a bar to a second indict- ment under § 3. Comm. v. Squire, (1 Met.) 42 258. See, also, Lamed v. Comm., (12 Met.) 53 "'"• Comm. v. Hamilton, (15 G) 81 240; [See G. S., Ch. 101, §§3,5; P. 8. Ch. 203, §§ 3, 6, t3 i j ud f ment of a magistrate that the de- S» ^ ^charged for want of probable w™ ' M,? at th , ere 1S Probable cause to believe brforft^' and . that he recognize to appear Before the superior court, is not pleadable in oar to an indictment for the same offence. .i„„ 01 £ m - *• Hami lton, 129 479. See, also, Comm. v. Harris, (8 G.) 74' 470-. Comm «,. Boyle, (14 G.) SO 3; Comm. M a ™ M !?f/ 4 G '> 80 49 ; Comm. e. Many, (14 G.) 80 82. 23. But where the magistrate, after ordering the prisoner to recognize, revoked the order and sentenced him, that is a bar to a subsequent conviction for the same offence. Comm. v. Goddard, 13 455. 24. A conviction, obtained by fraudulent col- lusion, from a justice of the peace having con- current jurisdiction with the superior court, is no bar to an indictment in the latter court. Comm. v. Alderman, 4 477; Comm. v. Dascom, 111 404. 25. Where the jurisdiction of the inferior court depends upon the fact, that the offence is not of a high and aggravated nature, the assumption of such jurisdiction is not conclu- sive that the offence was not of that character. Comm. v. Cunningham, 13 245; Comm. v. Goddard, 13 455. 26. But a plea of former acquittal, which avers jurisdiction in the inferior court, is a good bar to a subsequent indictment for the same offence. Comm. v. Cunningham, 13 245; Comm. v. Goddard, 13 455. 27. And where the jurisdiction of the inferior court depends upon the value of the property, as not exceeding a certain sum, a plea of a former acquittal, in the inferior court, is a good bar to an indictment alleging it to be of greater value. Comm. v. Bosworth, 113 200. 28. Upon a complaint for keeping intoxicating liquors, with intent to sell the same unlawfully, a record of proceedings, resulting in favor of the defendant, for seizure and forfeiture of cer- tain intoxicating liquors, alleged to have been kept on the same day, with like intent, is inad- missible, without proef that the time relied upon by the government was the same, although it is admitted that the liquors were the same. Comm. v. Doyle, 132 244. 29. A former acquittal or conviction, in a court having no jurisdiction, is no bar to » second prosecution. Comm. v. Roby, (12 P.) 29 496; Comm. v. Peters, (12 Met.) 53 387. 30. A nolle prosequi upon an indictment, is not a bar to another indictment for the same offence. Comm. v. Wheeler, 2 172. 31. Nor where judgment was arrested upon an insufficient indictment. Comm. e. Wheeler, 2 172; Comm v. Purchase, (2 P.) 19 521; Comm. «. Gould, (12 G.) 78 171.. 32. Nor where the indictment has been quashed Comm. v. Gould, (12 G) 78 171. 33. Nor where a complaint has been dis- missed. Comm. v. Bressant, 126 246. 34. Nor where the defendant, after the jury had been impanelled, wns allowed to w thdraw his plea of not guilty, and plead in abatement for misnomer, upon which the indictment was quashed. Comm. v. Farrell, 105 189 35. Nor where the record shows an acquittal, on the ground of variance. Comm. v, Chesley, 107 223. 600 FORMER ADJUDICATION, I; II, (1). 36. A verdict of guilty, no sentence having been pronounced, where exceptions were taken, and are still pending, is not a bar to a second prosecution. Comm. n. Praher, 126 265. 3"? Qu , whether the rale is different, where the defendant has not taken or has waived his exceptions, and is ready to abide his sentence. Comm. v. Roby, (12 P.) 29 496; Comm. v. Lahy, (8 G.) 74 459; Comm. v. Harris, (8 G.) 74 470; Comm. v. Lockwood, 109 323; Comm. v. Fraher, 126 265. 38. Where a statute of this Commonwealth makes an act punishable, which is also punish- able under the statutes of the United States, an acquittal or conviction, in one jurisdiction, will bar a second trial for the same offence in the other. Comm. v. Fuller, (8 Met.) 49 313. 39. Payment of costs by the defendant, as a prerequisite to opening his default, does not bar a further prosecution. Comm. v. Taylor 113 4. 40. An acquittal on a complaint, charging the defendant with maintaining a nuisance from Jan. 1 to May 28, 1878, is a bar to another complaint for maintaining the same nuisance from Jan. 1 to Aug. 20, 1878. Comm. v. Robinson, 126 259. 41. The former acquittal can be pleaded in bar, at common law, only if the previous pro- ceedings have been valid.. Comm. o. Roby, (12 P.) 29 496. 42. But where the complaint is so defective, that the judgment might have been arrested or reversed on error, if the defendant acquiesces and performs the penalty, he waives the defect, and the former conviction is pleadable in bar. Comm v. Loud, (3 Met.) 44 328; Comm v Keith, (8 Met.) 49 531; Lamed ». Comm., (12 Met.) 53 240. 43. On the trial of an indictment for man slaughter, the record of a previous conviction for assault and battery on the deceased, and judgment thereon before her death, is admissi- ble to prove such conviction; but it is not evi- dence of an assault, as alleged in the indictment, nor that the assault stated in the record is the same. Comm. v. McPike, (3 C.) 57 181. 44 It is, however, conclusive evidence that the assault was unjustifiable. Comm. v. Evans, lO-l 25. 45. A former acquittal cannot be proved under the general issue. Comm v. Chesley, 107 223. 46 The plea must aver that the two offences charged are the same, and that the defendant in each indictment is the same person. Comm. v Goddard, 13 455. 47. If it is pleaded to all the counts, and is good only to some, it is bad on demurrer. Comm. d. Goddard, 13 455. 48 A piea to an indictment of a former con viction in a police court, of an inferior grade of offence, must traverse directly the allegations showing the offence to be of a higher grade. Comm. «. Curtis, (11 P.) 28 134. 49. And it must set forth specially the juris, diction of the inferior court, and the proceed- ings therein. Comm. ii. Goddard, 13 455; Comm v. Curtis, (11 P.) 28 134. 50. For other rulings, as to the form of such a plea, and the rejoinder thereto, see Comm. v. Curtis, (11 P.) 28 134. 51. In this Commonwealth, after a plea in bar to an indictment for a misdemeanor is ad- judged bad, the defendant may plead over; aliter, in England. Comm. d. Golding, (14 G.) 80 49. See, also, Comm. «. Goddard, 13 455 Evans v. Comm., (3 Met.) 44 453 Comm. v. Peters, (12 Met.) 53 387: Comm. n. Eastman, (1 C.) 55 1 Comm. v. Ayer, (3 C.) 57 150; Comm, v. Shattuck, (4 C.) 58 141. 52. Such is the rule in a capital cause, here and in England. Comm. v. Roby, (12 P.) 29 496; Comm. ■». Wade, (17 P.) 34 395; 53. The burden of proof, on the issue raised by a plea of autrefois convict, or autrefois acquit, is on the defendant, and is not shifted by prima facie proof of the identity of the offences. Comm. v. Daley, (4 G.) 70 209. 54. Where a former conviction in an inferior court is pleaded, with profert of the record, a certiorari will issue to the inferior court, upon a suggestion of diminution of the record; but if, upon its return, the prosecuting officer files a general demurrer to the plea, no notice will be taken of the newly certified record. Comm. v. Roby, (12 P.) 29 496. 55. Upon a plea of not guilty, and autrefois convict, the defendant cannot be tried, against his objection, on the former plea, until the lat- ter is determined against him. Comm. «. Merrill, (8 A.) 90 545. 56. But where, in such a case, the Common- wealth replied that the former conviction was procured by fraud, and by consent both pleas were tried together, and a general verdictof guilty rendered, this is not open to exception by the defendant. Comm. «. Dascom, 111 404. II. In a civil Cause I As to the conclusiveness of a judgment between parties and privies, see Estoppel, II, (1).] (1.) General rules. 57. A defendant cannot be required to pay one entire and indivisible claim, by instalments, to different persons, or be subject to two suits for the same cause of action in favor of the same plaintiff. Stearns v. QuincyM. F. Ins. Co., 124 61. See, also, Gibson ». Cooke, (30 PJ 37 15; Warren v. Comings, (6 C.) 60 103; Bennett v. Hood, (1 A.) 83 47. 58. It makes no difference that, in the former action, part of the plaintiff's true claim was omitted by accident or misapprehension. Stevens*. Tuite, 104 338. See, also. FORMER ADJUDICATION, II, (1), (2). 601 Homer v. Fish, (1 P.) 18 435; Fuller v. Shattuck, (13 G.) 79 70. 59. A running account for items, accrued at different times, is not an entire demand within ^"Badgers. Titcomb,(15P.) 32 409. 60. Even where the items not included in the judgment were proved, if the proof was on lv explanatory of other testimony. Badgers. Titcomb, (15 P.) 32 409. 61. And where, although the contract was entire, the performance is several, each breach will support a different action, although two or more breaches have occurred, when an action is brought for one. Badger v. Titcomb, (15 P.) 32 409; Perry v. Harrington, (2 Met.) 43 368; Sparhawk v. Wills, (6 G.) 72 163; An- dover Sav. Bk. v. Adams, (1 A.) 83 28 63. After judgment for the conversion of certain chattels, a new action will not lie for conversion of other chattels, by the same act, although they were omitted by accident, or even through the fraudulent act of the de- fendant. Marble v. Keyes, (9 G.) 75 221; Folsom v. Olemence, 119 473; Mc- Caffreys. Carter, 125 330. 63. So a judgment against a railroad com- pany, for destruction of a building, from fire communicated by a locomotive, is a bar to a subsequent action by the same plaintiff, for the destruction of other buildings, by fire communi- cated from the first building, although the second action is for the benefit of an insurance company, which has paid the loss. Trask v. Hartford & N. H. Railroad, (3 A.) 84 331. 64. So a judgment against a railroad com- pany for damages, not limited to those incurred at the date of the writ, for diverting a_ stream and washing away the plaintiff's land, is a bar to a subsequent action by him for additional damages, although caused by an unusual freshet. Fowle 11. New Haven & N. Co., 112 334. See, also, Warner v. Bacon, (8 G.) 74 397. 65. So damages can be recovered but once for the erection of a nuisance; but the continu- ance of a nuisance is a new nuisance, and a former judgment is not a bar to an action for such damages. Staple v. Spring, IO 72; Gay v. Welles, (7 P.) 24 217; Hodges v. Hodges, (5 Met.) 46 205; McDonough «. Gilman, (3 A.) 85 264; Prentiss v. Wood, 132 486. [See, also, Damages, I; III; IV, (5); Mill and mill Dam; Nuisance, I j 66. If the declaration in an action contains only one count, setting forth different trespasses on real property, accompanied by particular acts of injury, a judgment for a portion of such acts is a bar to a subsequent action for the re- mainder. > Goodrich v. Yale, (8 A.) 90 454. See, also, White v. Moseley, (8 P.) 25 356. 67. But where the declaration is not sufficient to entitle the plaintiff to all his damages, a new action will lie. White v. Moseley, (8 P.) 25 356. Vol. 1—76 68. A judgment in an action for false impris- onment, brought during the imprisonment, is not a bar to another action for the continuance of the imprisonment, after the date of the first writ. Leland 0. Marsh, 16 389. 69. In an action upon a judgment, evidence that before it was recovered, the claim was in part satisfied, is incompetent, while the judg- ment remains unreversed. Stephens v. Howe, 127 164. 70. Where credit was given to the defendant in a former action, for a note held by him against the plaintiff therein, he cannot recover the note in a subsequent action; and an entry on the clerk's docket that the jury said they allowed no payment, will not enable him to recover. Abbott v. Stevens, 117 340 See, also, Minor '». Walter, 17 237; Briggs v. Richmond, (10 P.) 27 391; Kelley a. Pike, (5 C.) 59 484. 71. A creditor who has obtained a judgment, although in another state, cannot sue upon the original demand. Henderson v. Staniford, 105 504. See, also, Ward i>. Johnson, 13 148; Campbell v. Phelps, (1 P.) 18 62; Cats- kill Bk. v. Hooper, (5 G.) 71 574. 72. Unless the action is given as a mere cumulative remedy, as where the former action was against an administrator and his sureties, and the second action is against the adminis- trator alone. Storer v. Storer, 6 390. 73. A udgment in admiralty by a mariner against the master for assault, etc., upon the high seas, is not a bar to an action at common law for similar torts in a foreign port. Adams 11. Haffards, (20 P.) 37 127. 74. In an action upon a note, where the de- fendant sets up that he made a contract with the plaintiff to do work, and take the note in payment, such a defence will not prevail where he has sued for his work, and recovered judg- ment, without allowing the note. Sharer i>. Collins, 106 417. 75. A judgment for the plaintiff for part of a promissory note, to which the defence is set up of false representations of the payee, con- cerning the value of the goods, for which the note was given, is a bar to an action by the maker against the payee upon such false repre- sentations. Burnett v. Smith, (4 G.) 70 50. 76. A judgment for the plaintiff in replevin by a mortgagee, conclusively establishes that, when the action was brought, he was entitled to the immediate possession of the chattels. Allen v. Butman, 138 586. (2.) Whether the former judgment was on the merits. [See, also, Discontinuance, etc.] 77. A decree in equity dismissing a bill, upon a hearing and adjudication upon the merits, is a bar to another suit, either in equity or at law, between the same parties, for the same cause. Butchers' S. & M. Ass'n v. Boston, 602 FORMER ADJUDICATION, II, (2), (3). 137 186. See, also, Bigelow v. Winsor, (1 G.) 67 299; Foote v. Gibbs, (1 G.) 67 412; and Divorce, V, (1); Equity Pleading, etc., II, (7). 78. But if the dismissal is, for some cause not involving the merits, as because the plain- tiff has an adequate remedy at law, it is not a bar to a suit at law; and if the record does not show the cause of dismissal, that may be shown by extrinsic evidence. Butchers' S. & M. Ass'n v. Boston, 137 186. See, also, Foote v. Gibbs, (1 G.) 67 412; Foye v. Patch, 132 105; Kemptonv. Burgess, 136 192. 79. A judgment on a nonsuit, or mora pros., or for the defendant for costs, for neglect to rjrosecute, is not a bar to a second action. Morgan v. Bliss, 2 111; Bridge v. Sumner, (1 P.) 18 371; Comm. v. Casey, (12 A.) 94 214; Hayes v. Collins, 114 54 See, also, Burrell v. Burrell, lO 221; Gilbrethfl. Brown, 15 178; Wade *. Howard, (8 P.) 25 353. 80. Although it is taken upon an agreement 10 abide the result of another action, which was determined upon the merits. Ensign v. Bartholomew, (1 Met.) 42. 274. 81. So the dismissal of an action of replevin, for informality in the replevin bond, is not a bar to a second action. Walbridge v. Shaw, (7 C.) 61 560; Morton v. Sweetser, (12 A.) 94 134. 82. But a judgment by default is conclusive. Thatcher v. Gammon, 12 268; Loring ». Mansfield, 17 394; Jordan*. Phelps, (3 C.) 57 545; Sacket v Loomis, (4 G.) 70 148; Hanscom v. Hewes, (12 G.) 78 334; Fuller v. Shattuck, (13 G.) 79 70; Nettleton v. B_ach, 107 499. Contra, Rowe ». Smith, 16 306, overruled. . Credit Mobilier, 135 367. 3. An act, done with intent to defraud, lays no foundation for an action, unless it has re- sulted in damage to the plaintiff. Morgan 8. Bliss, 2 ; 111. 4. And a remote, indefinite, and contingent injury, such as a loss by failure to attach, in consequence of reliance on a fraudulent repre- sentation, will not suffice to maintain action, Lamb 8. Stone, (11 P.) 28 527; Wel- lington*. Small, (3 C.) 57 145; Randall ■o. Hazelton, (12 A.) 94 412; Bradley 8. Fuller, 118 239. ' 5. Purchasing goods, with a preconceived in- tent not to pay for them, is a fraud, which ren- ders the sale voidable, and entitles the vendor to recover the goods; although there were no fraudulent representations. Wiggin ». Day, (9 G.) 75 97, Dow ». Sanborn, (3 A.) 85 181. 6. So does a purchase of goods, on credit, by an infant, upon his fraudulent representation that he was of full age. Badger 8. Phinney, 15 359. 7. So does a purchase of goods, on credit, upon fraudulent representations of the pur- chaser's ability to pay for them. Buffington 8, Gerrish, 15 156. See, also, Atwood v. Dearborn, (1 A.) 83 483. 8. A sale of goods, procured by means of the fraud of the purchaser, is not, however, abso- lutely void; and the vendee's right to reclaim we goods is lost, if they have passed into the hands of a purchaser for value, bona fide, and without notice of the fraud. Rowley v. Bigelow, (12 P.) 29 307; Hoffman 8. Noble, (6 Met.) 47 68; Dow «. Sanborn, (3 A.) 85 181. 9. The same rule applies to a conveyance of real property, procured by fraud. Somes «. Brewer, (2 P.) 19 184, Green 8. Tanner, (8 Met.) 49 411; White v. Graves, 107 325. «,\£°' £° where the S™* is U P 011 an illegal con- falm ' M an ^eement to compound a Worcester 8. Eaton, 11 368. j [See, further, Sale, I, (3); Vendor and Vendee, fideVreli atMling creditor is not such a bona Buffington 8. Gerrish, 15 156; Wig- gin s. Day, (9 G.) 75 97. 12. Nor is a messenger seizing the goods, un- der a warrant in insolvency. Bussing 8. Rice, (2 C.) 56 48. 13. If a private act of the legislature can be- avoided for fraud in procuring it, the court will not infer the fraud, unless it necessarily results- from facts found by the jury. ' Comm 8 Breed, (4 P.) 21 460. 14- It cannot be thus avoided by a stranger, but only on quo warranto. Charles River Bridge 8. War. en Bridge, (7 P.) 24 344. 15. A license, obtained under the false pre- tence of having a search warrant is void, and will not justify an entry in an action of trespass quare clausum. Anthony 8. Wilson, (14 P.) 31 303. 16. Where a seaman, who had made a con- tract for wages on a fishing voyage, was in- duced, by the fraudulent representations of the master, to sign a contract to receive a share of the fish for compensation, he was allowed 'to recover on the first contract. Baker 8. Corey, (19 P.) 36 496. 17. Where W, holding a power of attorney from F, fraudulently conveyed the latter's real property, by an unrecorded deed, to an accom- plice, who gave W his note therefor, payable to F, and a lease to F for a rent equal to the interest on the note, and F, in ignorance of these transactions, occupied the real property until his death, when W gave up the note, took a deed from his accomplice, and recorded both the deeds, these acts were a fraud on F, which entitled his heirs to recover the property on a writ of entry. Fay ». Winchester, (4 Met.) 45 513. 18. Fraud in inducing one to accept a policy of insurance, will not render the company lia- ble to an action on the policy, if, by its terms, such an action will not lie. Tebbetts v. Hamilton Ins. Co., (3 A.) 85 569. 19. A compromise, made by an insolvent debtor, concealing the fact that he has just in- herited property, and assigning other reasons- therefor, is voidable by the creditor by reason of the fraud. Lewis 8. Gamage, (1 P.) 18 347. 20. A note, given by a debtor to a creditor, to induce him to assent to a composition, is a fraud on the other assenting creditors, and the note is void. Case 8. Gerrish, (15 P.) 32 49; Rams- dell 8. Edgarton, (8 Met.) 49 227; Loth- rop 8. King, (8 C.) 62 382. [See, also. Composition.] 21 A judgment, by consent, taken for more- than the sum justly due, for the purpose of de- frauding the other creditors of the judgment debtor, is fraudulent as to them. Fairfield 8. Baldwin, (12 P.) 29 388; Peirce 8, Partridge, (3 Met.) 44 44; Felton 8. Wadsworth, (7 C.) 61 587. 22. The settlement of an annuity on a de- fendant,, in consideration of his release of his right to 'review a judgment, does not necessa- 606 FRAUD, I; II. rily prove that the judgment was taken collu- sively. Boylston v. Carver, 1 1 515. 23 A tenant in common of a vessel, purchas- ing his co-tenant's share, is not bound to dis- close the fact, that he had made a contract with a third person, for the sale to the latter of the whole vessel, but if he made any misrepresenta- tion on the subject, or used any effort to pre- vent his co-tenant from ascertaining the fact, the transaction is fraudulent Matthews v. Bliss, (22 P.) 39 48. 24. Proof that the co-tenant received the full value of his share is competent, as tending to disprove any fraud. Matthews v. Bliss, (22 P.) 39 48. 25. Where one of two former partners fraudu- lently recovers judgment in the name of both, upon a paid note belonging to the firm, and levies on real property, the release of his title to the levy by the other, does not prove his par- ticipation in the fraud. Valentine v. Farnsworth, (21 P.) 38 176. 26. Where A gave B a bond to convey him real and personal property, and agreed that B should have possession, as long as he paid the notes given therefor, this is not fraudulent per se, although B obtained credit from the posses- sion of the property. Ayer v. Bartlett, (6 P.) 23 71. See, also, Glover v. Austin, (6 P.) 23 209. 27 One who has fraudulently induced another to purchase from him a note, secured by amort- gage containing a power of sale, cannot, after an open and fair sale under the power, object, in an action against him, that the plaintiff might have obtained a greater price, by postponing the sale until a more favorable time, Franklin v. Greene, (2 A.) 84 519. 28. A fraudulent and collusive consent to the entry of a judgment, upon a writ of entry, whereby land, liable to be taken on an execution, ' was recovered, affords no ground for relief to a creditor, if the same result would have been accomplished by regular prosecution, or yield- ing possession without a suit. Lamb e. Smith, 132 574. II Fraudulent Representations LSee. also. False Pbetbnces. As to t he c ases where they must be in writing, see Statute of Pbattds V.l 29. In order to maintain an action for deceit, the plaintiff must show that the representation*, alleged were all representations of material facts, which were false, and were calculated to de- ceive him and induce him to act. Representa- tions as to matters merely, collateral, not consti- tuting essential elements of tne contract into which the plaintiff is induced to enter, are not sufficient. Hedden e. Griffin, 136 229. See, also, Tryon ». Whitmarsh, (1 Met ) 42 1; Pease v, Brown, 104 291, Poland v, Browneli, 131 138; Harrington v. Smith, 138 92, Cole® Cassidy, 138 437. Brown v. Fales, 139 21 30. The question of the materiality of the representations is for the court, not the jury. Penn Ins. Co. ■». Crane, 134 56. Aliter, Moore «. Cains, 116 396. 81. A false representation may be implied, as well as express, and may consist of conceal- ment of a material fact, if in either case it is designedly made, and under such circumstances as would naturally deceive and mislead the other party, to his injury. Potts v. Chapin, 133 276. See, also, Tryon v. Whitmarsh, (1 Met.) 42 1; Lobdell v. Baker, (1 Meti) 42 193; Kid- ney v. Stoddard, (7 Met.) 48 252; Berk- shire In?. Co. e. Sturgis, (13 G.) 79 177; Bradley v Poole, 98 169. 32. It is not essential that the person making the fraudulent representations should have him- self derived any benefit from the transaction. Patten v. Gurney, 17 182. 33. It is essential that the representations should have been known, to the party making them, to be false; and that fact must be proved. Cowley v Dobbins. 136 401. See, also, Dyer v. Lewis, 7 284; Stone v. Denny, (4 Met.) 45 151; Kings. Eagle Mills, (10 A.) 92 548, Hartford Ins. Co. v. Matthews, 102 221. 34. The admission or exclusion of evidence, offered by the defendant, that he did not know the representations to be false, depends upon whether the question as to such knowledge has been presented to the jury by the cause of the trial. Bannister v. Alderman, 111 261. 35. And where the representation is, that the defendant knows certain matters of fact to be true, and they are false, it is not necessary that he should have known that they were false. Jewett v. Carter, 132 335. See, also. Hazard «. Irwin, (18 P.) 35 95; Page?). Bent, (2 Met.) 43 371; Stone v. Den- ny, (4 Met.) 45 151; Milliken®. Thorn- dike, 103 382; Fisher v. MeUen, 103 503; Litchfield ». Hutchinson, 117 195; Potts v. Chapin, 133 276; Cow- ley v. Dobbins, 136 401; Cole v. Cassi- dy, 138 437. 36. But this rule Is confined to cases where a man states, as of his own knowledge, matters which are susceptible of personal knowledge. Tucker «. White, 125 344. [See, also, post, arts. 54, 55.' 37. And if an officer, selling land under an execution, states in good faith, as of his own knowledge, that it is free from incumbrances, when it is. in fact, incumbered, an actio will not lie against him. Tucker v. White, 125 344. 38. The party defrauded must have been actually deceived, to his injury, and it suffices if the false representations influenced him materially, although not exclusively. Emerson v. Brigham, lO 197, Mat- thews e. Bliss, (22 P.) 39 48, Tryon «. Whitmarsh, (1 Met.) 42 1, Pease «. Brown, 104 291, Safford e. Grout, 120 20. 39. The representations must have been made with intent to deceive the other party; but FEAUD, II. 607 oroof of their falsity and materiality suffices to authorize the jury to infer such intent. 8 Collins Vtenison, (12 Met.) 53 549. See, also, Page «. Bent, (2 Met.) 43 371; Morse v. Dearborn, 109 593. 40. Proof that the party making the repre- sentations had reasonable cause to believe them untrue, is not sufficient proof of guilty knowl- * S6 ' Tryon v. Whitmarsh, (1 Met.) 42 1; Coburn ». Proctor, (15 G.) 81 38; Pearson v. Howe, (1 A.) 83 207; Car- roll e. Hay ward, 124 120. 41. The fraudulent representations of an agent, acting within the scope of his authority, bind the principal as though the latter had made them. Locke v. Stearns, (1 Met.) 42 560; Kibbe e. Hamilton Ins. Co , (11 G.) 77 163; Jewett v. Carter, 132 335. 42. So as to a partner acting for his firm. Locke ». Stearns, (1 Met.) 42 560; Gook ». Castner, (9 C.) 63 266; "White « Sawyer, (16 G.) 82 586. 43. And the agent is himself personally liable. The person defrauded m?y rescind the ■contract with the principal, and maintain an action against the agent. Hedden e. Griffin, 136 229. 4t And a principal may sue for fraudulent representations to his agent. Where a contract was made upon a representation by an agent, the falsity of which his principal knew, but he did not, it was held that the principal might re- cover. , Tuckwell v. Lambert, (5 C.) 59 23; Coddington v. Goddard, (16 G.) 82 436. 45. Where buyer and seller have equal means ■of information, and are equally well qualified to judge of the value of the property, the buyer has no right to rely upon the seller's representa- tions, concerning the value of the goods, or the amount of business which the seller has pre- viously done. Poland v. Brownell, 131 138. 46. Qu., whether an action lies for false re- presentation as to the contents of a public "ecord. Walker «. Soule, 138 570 47. Or as to a matter of law. Burns v. Lane, 138 350 48. Mere " seller's statements," that is, com- mendations of the property, as to its condition, ■ situation, value, quantity, and the like, are to be received with great allowance and distrust , and ■although false, and knowingly so. are not actionable, in the absence of the affirmation of any specific material fact, unless the purchaser has been induced thereby to forbear inquiry as w the truth thereof; and, in such a case, the means whereby he has thus been induced to ■decl '■ mUSt be s P eciflcall y set forth in tne Parker v. Moulton, 114 99 Poland fl. Brownell, 131 138 See, also. Brown I Castles, (11 C ) 65 348; Gordon v. tttrmelee, (2 A.) 84 212; Veasey v, Doton, (3 A.) 85 380; Pike v Pay, 101 134; Mooneye. Miller, 102 217; ' hooper .«. Lovering, 106 77; Belcher v. Costello, 122 189; Blair v. Laflin, 127 518; Hoganu. Wixted, 138 270. 49. But if there is a distinct statement, known to be untrue, relief will be granted in equity or at law. Hogan «. "Wixted, 138 270. 50. An action will not lie for fraudulent representations upon a sale, as to a matter, which the buyer could have ascertained by his own observation, with ordinary diligence and prudence. Salem India Rubber Co. v. Adams, (23 P.) 40 256; Brown v. Leach, 107 364. 51. But if he can rely upon the statements, without an imputation of negligence, as where it would involve labor or expense to ascertain the facts, he may maintain the action. David v. Park, 103 501; Savage v. Stevens, 126 207. See, also, Nowlan v. Cain, (3 A.) 85 261; Manning e. Albee, (11 A.) 93 520; Pease v. Brown, 104 291; Cheney «. Gleason, 125 166. 52. An action for deceit may be sustained upon proof that the matters, respecting which the representations were made, were peculiarly, although not exclusively, within the defend- ant's knowledge. Nowlan o. Cain, (3 A.) 85 261. 53. "Where the defendant represented that he was the owner of certain stock, and induced the plaintiff to buy it, by false representations as to its value, the plaintiff need not prove that the defendant was the owner of the stock. Fisher v. Mellen, 103 503. 54. An action cannot be founded upon an expression of opinion, although fraudulent; and is for the jury to say whether a repre- sentation was made as matter of opinion or as matter of fact, where any doubt on that subject may arise. Safford v. Grout, 120 20; Morse v. Shaw, 124 59; Homer v. Perkins, 124 431; Teaguee. Irwin, 127 217; Stubbs v. Johnson, 127 219. See, also, Page «. Bent, (2 Met.) 43 371; Veasey v. Doton, (3 A.) 85 380; Pedrick v. Porter, (5 A.) 87 324; Belcher v. Cos- tello, 122 189. 55. This rule includes promissory representa- tions, which, in general, will not lay the founda- tion of an action. Pedrick v. Porter, (5 A.) 87 324; Pike «. Fay, lOl 134. 56. An action will not lie for a false affirma- tion as to the price paid for property by the party; but it will as to. the price paid by another. Medbury v. "Watson, (6 Met ) 47 246; Hemmer v. Cooper, (8 A.) 90 334; Belcher v. Costello, 122 189. 57 Under an allegation that the seller in- duced the purchase of a chattel, by false repre- sentations, the plaintiff cannot recover for a breach of warranty. Cooper ii Landon, 102 58. 08. An action of tort, for inducing the plain- tiff to indorse a note, cannot be maintained until payment of the note. Freeman v. Venner, 120 424. 608 FKAUD, II. 59. The omission of the party, to whom the representation is made, to rescind a contract, suffices to maintain the action. Bowen v. Carter, 124 426. 60. A defence to an action for rent, that the lease was procured by fraudulent representa- tions, is not precluded by the defendant having remained in possession for a week, if he left as soon as he discovered the fraud. Milliken v. Thorndike, 103 383. 61. It is no defence to the action, that the plaintiff sold the property for the same sum that he paid for it. Medbury v. "Watson, (6 Met.) 47 246. 62. An action lies against one, who falsely and fraudulently assumes to act as agent for an- other. Long v. Colburn, 1 1 97; Ballou v. Talbot, 16 461; Webster v. Lamed, (6 Met.) 47 522, Jefts v. York, (4 C.) 58 371: Abbey «. Chase, (6 C.) 60 54, Jones «. Wolcott, (2 A.) 84 247. 63 Where the defendant, assuming, without authority, to act as the agent of the town of D, and in its behalf, joined with the town of W, in making a contract to repair a bridge be- tween the two towns, it was held, that if any action lay, it was by the contractor, not the town of W. Webster v. Lamed, (6 Met.) 47 522. 64. An action lies for inducing the plaintiff to abandon an attachment, thereby losing his debt, by a fraudulent representation that the property is mortgaged. Brown ». Castles, (11 C.) 65 348 65. A representation by the purchaser of all the standing wood on a lot, that he had not measured it, and thought there was a little more than eight acres on it, when he had, in fact, measured it, and knew that it contained 16 acres, authorizes the seller to rescind Prescott v. Wright, (4 G.) 70 461. 66. A fraudulent representation by a grantor, that the land embraces more than it really does, lays the foundation of an action. Bennett «. Ryan, (9 G.) 75 204. 67. Where a statement contains two clauses in the alternative, one affirmatory, the other promissory, the other party may rely upon either; and if he relies on the former, and is defrauded, an action lies. Thaxter v. Bugbee, (5 C.) 59 221 68. The fraudulent representation by an in- fant, that he is of age, entitles a seller to re- scind. Badger ■». Phinney, 15 359. 69. An action lies against one, for fraudu- lently representing himself to be a public officer, to the plaintiff's damage. Comm. v. Woods, (11 Met.) 52 59. 70 Fraudulent representations of officers of an insurance company, concerning its condition, etc. , afford no defence to an action on a pre- mium note, unless made when the note was given, and in order to obtain it. Fogg v. Pew, (10 G.) 76 409. 71. An action lies for fraudulent representa- tions on the sale of goods, although a bill of sale was given. Nowlan v. Cain, (3 A.) 85 261. 72. Also, for a fraudulent representation on the sale of a note, that it had not been paid. Sibley v. Hulbert, (15 G.) 81 509. 73. A land owner, who has directed his agent to erect a house at a particular place, cannot maintain an action against one who induces him to erect it in another place, by false repre- sentations as to the boundary line. Silver v. Frazier, (3 A.) 85 382. 74. For the application and construction of the rule in Pennsylvania, that a mere intention not to pay the purchase price will not render a sale fraudulent, see Kline ». Baker, 99 253; Kline v. Baker, 106 61. 75. Where the buyer of goods made a fraudu- lent representation to the seller's agent, before he sent an order for part of the goods through the agent; and before the credit therefor had expired, sent an order for the remainder directly to the principal; and the representation was never communicated to the principal by the agent, but the latter testified that it influenced him to accept the first order; the jury were allowed to infer that it induced both sales. Kline v. Baker, 99 253; Kline v. Baker, 106 61. 76. Where the seller of an express line con- cealed the fact, that he had had notice from the railroad company, that his facilities would be withdrawn at a future day, and represented to the purchaser that he would have no difficulty in making arrangements with the company, but the purchaser knew that the seller had no arrangement, which would prevent the company from withdrawing the facilities at any time, this will not lay the foundation of an action. Putney «. Hardy, 99 5. 77. Where the organization of a mining com- pany was effected by paying for mines in Colorado, with its stock, to a large amount; and upon the subsequent sale of shares by the defendant, a director knowing all the facts, he represented that it was valuable property, etc., and concealed the mode of organization, and the fact, that for failure to pay its tax of $300, it had been enjoined in behalf of the treasurer of the Commonwealth; it was held that the plaintiff might recover, although he had been informed by the treasurer, before the purchase, of matters tending to show that the mines had been purchased at an inflated price. Bradley ». Poole, 98 169. See, also, Bruce v. Nickerson, 141 403. 78. In an action for false representations in the sale of a steam engine, as capable of yield- ing a certain horse power, the plaintiff is not entitled to ask an expert what horse power is meant where an engine is advertised as of a certain horse power; and he is not entitled to a ruling that the jury are to determine, whether the defendant held out, by his advertisement, that it was of a certain power by the manufac- turers' rate; nor can he maintain an exception to a ruling that the engine must furnish such a power, without being strained or injured. Harrington v. Smith, 138 92. 79. In an action for a false representation of flour as sound and sweet, evidence that the flour was received by the defendant as part of a large lot, the rest of which was sound, and that all was alike as far as lie knew, and all FEAUD, III, (1). 609 was kept together, and that the plaintiff exam- ined the flour before buying it, is admissible. Bowker e. Delong, 141 315. HI. Conveyance or Transfer to defraud. [See, also, Assignment, V; Chattel Mortgage, IE (1); Contract, III; Insolvent, VIII, (3); IX; Pooh Debtor, III, (2); Sale, I, (3); Trustee Pro- cess, III, (MM (1.) Transfer of personal property. n?or other oases, where personal property was transferred with real property, see post. III, (3). See, also, Sale, I, (3).] 80. St. 13 Eliz., 5, declaring conveyances, etc., to defraud creditors void, included choses in action. Drake v. Bice, 130 410. 81. A sale made to defraud creditors is void against those, who become creditors after the sale. Damon a. Bryant, (2 P.) 19 411. 82. A purchaser bona fide and for value, of goods assigned, or of a chattel mortgage given, in fraud of creditors, acquires a good title. Sleepers Chapman, 121 404. 83. The real plaintiff in an action cannot be considered a bona fide purchaser without notice, at an execution sale, unless the nominal plain- tiff could be so considered. Hunt v. Holton, (13 P.) 30 216. 84. Trustees, to whom the fraudulent assignee has assigned his property in payment of his debts, are not purchasers for a valuable con- sideration, and stand upon the same footing as the assignee. Holland v. Cruft, (20 P.) 37 321. 85. And a fraudulent grantee of personal property cannot be held as trustee of the grantor, if, before service of the process on nun, he has bona fide paid debts of the grantor to the value of the property. Thomas v. Goodwin, 12 140. 86. The continued possession of personal property by the seller or mortgagor, after the sale or mortgage thereof, is not fraudulent per *e, but it is prima facie evidence of fraud, to De repelled by proof of an 'honest and lawful purpose, Brooks v. Powers, 15 244; Eadlam *■ Tucker, (1 P.) 18 389; Homes v. £ ra S^' (2 £•> 19 607 ; "Wheeler v. Train, ?A\ 3°, 255 : Fletcher «. Willard, iia n< 2 1 464 : Macomber v. Parker, So £! S i m > Shurtleff *. Willard 1 nV £9 203 ; Allen »• Wheeler, irftKJ ™ m > ^S^s »• Herrick, 1US ool; Towne «. Fiske, 127 125. fiw Sale and delivel T of goods is not 32?t? *"■" against creditors of the pur- Sffltt am an «£n»nant was made that Krf m: u pri C r ain in the seiier - ^ ™- Hussey v, Thornton, 4 405. oeThenrhnprt!^? 1611 ^* 11 ^ the g° ods were to PurSpr P ^ % . 0f the ? eller until resol d, and the purchaser was to retain the balance of the pro- Vol. 1—77 ceeds as profits, is prima facie, although not necessarily, fraudulent. Patt. n ii. Clark, (5 P.) 22 5 See, also, Allen v. Smith, 10 308; Cox ■». Jackson, (6 A.) 88 108. 89. And an agreement, on the part of the purchaser, to conceal the sale, the vendor remaining in possession, is not fraudulent per, se. Gould v. Ward, (4 P.) 21 104. 90. Where goods have been sold to defraud the seller's creditors, the sale cannot be avoided and the property reclaimed by him, after they have been attached as the purchaser's property. Gibbs v. Chase, lO 125. 91. A mortgage of perishable articles, or under an agreement that the mortgaged chattels may be used and consumed by the mortgagor, is fraudulent against creditors of the mortgagor. Robbins v. Parker, (3 Met.) 44 117. 92. Where the property is sold for a valuable consideration, but with intent to defraud the creditors of the seller, the purchaser takes a good title, unless he participated in the fraudu- lent intent. Kittredge v. Sumner, (11 P.) 28 50; Green «. Tanner, (8 Met.) 49 411. 93. That he had reasonable cause to suspect it will not avoid the sale. Carroll v. Hayward, 124 120. 94. The fact that a firm was in debt, when it transferred its property will not raise a pre- sumption that the transaction was fraudulent. Green v. Tanner, (8 Met.) 49 411. 95. The appointment of an insolvent debtor as the agent of one of his creditors, to buy, sell, and manufacture goods, with a provision that after deducting advances, expenses, and a com- mission, the debtor shall have the balance for his services, is not prima facie evidence of fraud; although there has been no settlement for many years, and certain of the proceeds were appro- priated by the debtor, without keeping an account thereof, etc. Emmons «. Westfield Bank, 97 230. 96. But in such a case, evidence of prior or contemporaneous fraudulent declarations and acts of the debtor, and evidence of any declara- tions or acts, tending to show that he treated the property as his own, if made with the cred- itor's assent, are competent to show actual fraud. Emmons «. Westfield Bank, 97 230. 97. A sale may be treated as fraudulent, which is made to defeat a claim for the support, * by the seller, of a bastard. Damon v. Bryant, (2 P.) 19 411. 98. Or the personal liability of a stockholder for debts of a corporation. Marcyu. Clark, 17 330. 99. Or a judgment in an action for a tort. Clapp v. Leatherbee, (18 P.) 35 131. 100. In an action by the mortgagee of per- sonal property, against the consignee of the mortgagor, who has made advances in good faith, since the mortgage, the defendant may show, in defence, that the mortgage was fraud- ulent as to the creditors of the mortgagor, and that the mortgagee participated in the fraud. Blanchard v. McKey, 125 124. 610 FKAUD, in, (i), (2). 101. But a mere bailee cannot defend en that ground. Brown v. Thayer, (12 G.) 78 1. 102 A transfer to defraud creditors is good between the parties, and a sufficient considera- tion for a note given for the price. Dyer v. Homer, (22 P.) 39 253. 103. And where, after such a fraudulent mortgage of household furniture was given, the mortgagor went into bankruptcy, and the furniture exempt under the bankrupt act was set off to him, an 1 the mortgage was declared fraudulent, the mortgagee was allowed to main- tain replevin against the mortgagor for the ar- ticles so set off. Tuesley v. Robinson, 103 558. 104. The rule is the same, between the mort- gagee and the administrator of the mortgagor; except that if the estate is insolvent, the ad- ministrator has the same right to reclaim the property, that a creditor might have had. Wall v. Provident inst'n, etc., (6 A.) 88 320; Parker v. Flagg, 127 28. 105. And where a note is given to a married woman, in consideration of the surrender by her husband of a former note, and she transfers it in fraud of his creditors, the maker cannot defend on that ground. Harding v. Colon, 123 299. 1 06. Neither an attaching officer, nor a cred- itor, nor the assignee of an insolvent debtor, can inquire into the validity of a sale ■ by the debtor of exempt articles. Rayner «. Whicher, (6 A.) 88 292; Mannan v. Merritt, (11 A.) 93 582. 107. "Where, however, the debtor transfers, in fraud of creditors, articles designed to carry on his trade, and necessary for that purpose, ex- ceeding $100 in value, none of which have been set apart, an attaching creditor, or the debtor's assignee in insolvency, may recover the whole. Stevenson v. White, (5 A.) 87 148; Rayner v. Whicher, (6 A.) 88 292. 108. Where, after a fraudulent sale to the defendant, the latter returned the articles to the fraudulent seller, and he sold them to an- other, before the first publication of notice in insolvency, the assignee in insolvency cannot maintain the action. Raynoru Whicher, 16 A.) 88 292. 109. So where property fraudulently trans- ferred, is delivered to a creditor of the trans- feror, with the latter's assent, by the transferee, in payment of the creditor's debt, another cred- itor cannot a ;oid the sale Boyd v. "Brown, (17 P.) 34 453. 110. The title of a mortgagee of chattels can- not be defeated, by an attaching creditor of the mortgagor, on the ground that the property was purchased with money, fraudulently re- served from his creditors by the mortgagor, in insolvency proceedings. Codman v. Freeman, (3 C.) 57 306. 111. The placing by an insolvent of demands in the hands of an attorney for collection, the proceeds to be paid to such creditors as will discharge him, is fraudulent. Hooper v. Hills, (9 P.) 26 435. 112. Where a debtor gives his creditor hig note for the debt, and delivers goods to a larger amount, with a bill of sale, as security there- for, the bill of sale, as an absolute transfer, is fraudulent, but the delivery of the goods may create a valid pledge. Whitaker ». Sumner, (20 P.) 37 399. 113. Where a debtor transfers to his creditor personal property, under an agreement that he shall remain in possession, till default in pay. ment of whatsoever may be due, when payment is demanded, this is valid for all debts due at the time of the transfer, and subsequently in- curred to the time of delivery. Adams v. Wheeler, (10 P.) 27 199. 114. A liability for another is a good consid- eration for a conditional sale; and an excess of value over the liability will not render the trans- action fraudulent per se. Jewett v. Warren,. 12 300. 115. An attaching officer, sued by a fraudu- lent assignee, may defend under the creditor's demand, although the suit failed by reason of a set off. Gates «. Gates, 15 310. 116. An agreement that one, advancing money to a manufacturer, shall have an interest in the goods manufactured to the amount of his advances, is not fraudulent against the manufacturer's creditors, and gives the parties a property in common. Beaumont v. Crane, 14 400. C2.) Conveyance of real property, 117. A fraudulent grantee may convey a good title to a purchaser, bona fide, and for value. Green ». Tanner, (8 Met.) 49 411. 118. As to goods, see Sleeper v. Chapman, 121 404. 119. A conveyance upon a secret trust for the grantor, or with actual fraudulent intent, may be avoided by subsequent as well as existing creditors. Parkman v. Welch, (19 P.) 36 231; Wadsworth v. Williams, 100 126; Day 8. Cooley, 1 18 524; Dodd v. Adams, 125 398. 120. And for that purpose, the secret trust may be proved by oral testimony. Hills «. Eliot, 12 26; Rice v. Cun- ningham, 116 466. 121. A conveyance, for the purpose of de- frauding creditors, may be avoided, if the grantee participated in the fraudulent intent, although It was given for a full consideration, and when the grantor was solvent. Wadsworth v. Williams, IOO 126. 122. But such a conveyance, for value, can- not be attacked, unless the grantee participated in the fraudulent intent Poster e. Hall, (12 P ) 29 89. 123. If the conveyance was not for value, it may be avoided, although the grantee did not participate in the fraudulent intent. Marden v. Babcock, (2 Met,) 43 99: Blake v. Sawin, (10 A.) 92 340. FEAUD, III, (2), (3). 611 124. The same rale holds, where the debtor takes a conveyance In the name of another, who does not pay a consideration. Clark «. Chamberlain, (13 A.) 95 257. 125. To impeach a conveyance, as fraudulent against creditors, it is not necessary to show- that the grantor was then insolvent, but only that he was indebted. Parkmans. Welch, (19 P.) 36 231. 126. A secret trust, inconsistent with the terms of the conveyance, is fraudulent, unless it is satisfactorily accounted for; but it is not fraud per *«, nor ' s it conclusive evidence of fraud. Oriental Bk. «. Haskins, (3 Met.) 44 332. 127. A conveyance to defraud creditors is valid against the grantor and his heirs. Drinkwater v. Drinkwater, 4 354; Clapp v. Tirrell, (20 P.) 37 247. 128. Or against a second grantee, from the same grantor, having actual or constructive notice of the former deed, unless he paid a valu- able consideration. Clapp v. Tirrell, (20 P.) 37 247. 129. And a contract to convey either real or personal property, to conceal it from attach- ment, is good between the parties, although the grantee participated in the fraudulent intent. Harvey v. Varney, 98 118. 130. Where an administrator sells land by license, to pay debts, after recovering it from one to whom it had been conveyed, in fraud of creditors, the surplus proceeds, after payment of debts, belong to the grantee. Allen v. Ashley S. Trustees, 102 262. 181. An execution may be levied upon land fraudulently conveyed by a decedent, or the administrator may sell such land under a license; but he cannot defend an action by the grantee to recover it. Drinkwater v. Drinkwater, 4 354. 132. Where the administrator sells such land, the fraudulent grantee, if a creditor, may share pro rata in the proceeds with other creditors. Norton «. Norton, (5 C.) 59 524. 133. Collection by the administrator of a note given for the purchase, without knowledge of the facts will not prevent the administrator irom selling. Norton v. Norton, (5 C.) 59 524. 134. The provision in the insolvent law, Mowing the assignee to recover property iraudulently conveyed, does not take away the creditor s right to proceed by attachment. fenniman v. Cole, (8 Met ) 49 496, from A , COnT ^ ce t0 shield the Property irom attachment, thus made with the grantee's SS&w^'? l,Bt creditors ' ^ Ithouff]i Sptl el !? ved that h e should ultimately De aMe '? pay them all. J Kimball n. Thompson. (4 C.) 58 44i, fialfi s I her f OB ?- Oi the Purposes of a mort- al 1,^*i° ^i eld the Property, the mort- debt ' althou g h g^en for an honest 48 Crowninshield e. Kittridge, (7 Met; 137. Where a second mortgagee took an assignment of the first mortgage, and obtained a release of the equity of redemption, a creditor, subsequently levying upon and purchasing the equity of redemption, may avoid the second mortgage and the release as fraudulent. Van Deusen v. Frink, il5 P.) 32 449. 138. A deed, fraudulent as to creditors, can- not be avoided by one, the consideration of whose claim is illegal. Alexander v. Gould, 1 165 139. The possession of the grantee in a deed, fraudulent as to creditors, is not such a dissiesin of the grantor, that his subsequent deed to another is void, although the latter had notice. Bicker v. Ham, 14 137. 140. And where one executes a fraudulent mortgage, and afterwards executes an honest mortgage on the same property, to a person who knows all the facts, and lakes the second mort- gage for the purpose of avoiding the first, the latter is a bona fide purchaser with notice, and his mortgage is entitled to priority over the first. Hill ii. Ahern, 135 158. 141. Where a debtor, to defraud his creditors, pays part of the purchase money of land, and his wife pays the residue, and the land is con- veyed to her, she being ignorant of the fraud, a creditor cannot attack her litle Snow i). Paine, 114 520. 142. Money earned in part before the act of 1855, by a wife's own labor, and in part after that act by keeping boarders, may be used by her to purchase land, which her husband's creditors cannot reach. Hinckley «. Phelps, (2 A ) 84 77. 143. As to an attachment or levy upon land, conveyed to a third person, but paid for by the debtor, before St. 1844, Ch 107. Goodwin v. Hubbard, 15 210; Howe o. Bishop, (3 Met.) 44 26; Foster v. Durant, (2 G.) 68 538; Hamilton v. Cone, 99 478. 144. A conveyance, fraudulent as to creditors, creates no trust to reconvey the same, and an agreement so to do will not be enforced. Canton e. Dorchester, (8 C.) 62 525. 145. A conveyance, fraudulent as to either creditors or purchasers, may be purged of the fraud by matter ex post facto, whereby the fraudulent intent is abandoned, and the convey- ance confirmed, bona fide and for an adequate consideration. Oriental Bk. «. Haskins, (3 Met.) 44 332. 146. But a new consideration will not alone have that effect; the entire illegal transaction must be abandoned. Lynde v. McGregor, (13 A.) 95 172. JO.) "SVansfer or cDiiveyance as collateral I security, or to pay debts- I I 147. A mortgage to secure a debt due, and I also future advances, is not fraudulent per se,. Badlam v. Tucker, (IP) 18 389; Comm. Bk. r. Cunningham, (24 P.) 41 270. See, also. Adams e. Wheeler, (10 P.) 27 199, and Chattel Mortgage, II 612 FEAUD, III, (3). 148. A note and mortgage to indemnify an indorser is valid against subsequent creditors. Gardner v. "Webber, (17 P.) 34 407. 149. At common law, a debtor may secure any creditor, or any one liable for him as surety, by a conveyance of property bona fide. Carpenter v. Cushman, 121 265. 150. But if the principal afterwards conveys the property absolutely to the surety, for a con- sideration grossly inadequate, the absolute con- veyance may be avoided by the principal's creditors, the surety being entitled to security for his original advances. Ripley v. Severance, (6 P.} 23 474 151. An absolute conveyance to a surety, he giving back a writing, not under seal, for a re- conveyance, on being saved harmless, is not per se fraudulent. Cutler v. Dickinson, (8 P.) 25 386 152. And an absolute conveyance, intended as security for advances, is validated by a bond for a reconveyance,, given after the advances are made. Bichards v. Allen, (8 P.) 25 405. 153. If a principal, without the surety's knowledge, gives a note, and causes his prop- erty to bs attached for the surety's benefit, and before the surety assents to the transaction, other creditors attach, they are entitled to priority. Baird v. Williams, (19 P.) 36 381. 154. But where a debtor executes a deed to his creditor, without his knowledge, and the latter, before intervening creditors have ac- quired rights, assents to the transaction, annuls the debt, and gives a bond of defeasance, this will not support a charge of fraud. Harrison v. Phillips Academy, 12 456. 155. Where a debtor gave a note to the cred- itor's agent, at the creditor's request, and the agent brought an action, and levied his execu- tion upon the debtor's land, and subsequently conveyed it as security for a debt of the princi- pal, this is valid against a creditor of the prin- cipal, attaching after the levy, and before the conveyance, although the object was to conceal the extent of the original debtor's indebtedness. Northampton Bank v. Whiting, 12 104 156. A conveyance of the property of an in- solvent, for a consideration, alleged to have been paid " by bonds and notes," where the grantee gave him a bond to pay certain debts, and also gave him four notes for the remainder of the purchase money, was adjudged to be fraudulent. Piatt ». Brown, (16 P.) 33 553. 157. A transfer of choses in action, to indem- nify the assignees and others, is prima facie valid, unless the property largely exceeds the liabilities. Newman v. Bagley, (16 P.) 33 570. 158. And even if the property largely exceeds the debts, to pay which an assignment is made, the transaction is not fraudulent, if it was the intention that the surplus should be liable to trustee process in the assignee's hands. George v. Kimball, (24 P.) 41 234. 159. Where the creditors, who had become parties to an assignment for the benefit of cred itors, and other creditors, including the plain- tiff, gave the debtor an extension of five years and the assignee gave him thereupon permission to use the building and tools assigned, to assist him to pay the debts, this does not prove the assignment fraudulent against the plaintiff Scott v. Ray, (18 P.) 35 360. 160. Where an assignment is set aside on ap plication of the administrator as fraudulent against creditors, and all the property is re- quired for the payment of debts, the fraudulent grantee cannot retain the sum paid by him for the assignment. Holland v. Graft, (20 P.) 37 321, 161. But he may have his pro rata dividend on any honest debt. Norton . Baylies, (18 P.) 35 497. 164. An assignment by a debtor, to prevent his creditor from attaching his property and enable him to effect a settlement, or with a reservation to the assignor, is fraudulent, although it purports to be for payment of debts. Quincy «. Hall, (1 P .) 18 357; Harris «. Sumner, (2 P.) 19 129: Johnson v. Whitwell, (7 P.) 24 71. 165. If the reservation is apparent upon the face of the instrument, it is void as matter of" law. Harris v. Sumner, (2 P.) 19 129. 166. A conveyance to two persons, to hold in proportion to their respective debts, although fraudulent as to one, is not fraudulent as tn the other, who is innocent of the fraud. Prince «. Shepard, (9 P.) 26 176. 167. And although the debt to the innocent party is stated to be larger than the true amount, this may be explained, so as to rebut the pre- sumption of fraud. Prince ». Shepard, (9 P.) 26 176. . 168. Where a debtor, by a bipartite assign- ment, conveys his property in trust to pay, first, the expenses of and reasonable compensation to the assignees, and the debts due to them, and then the other debts pro rata, without any stipu- lation for a release or becoming parties, if the assignees' claims exceed the property ,_ they having become parties, the property is pro- tected from subsequent attachments. Everett v Walcott, (15 P.) 32 94 I As to questions of fraud in assignments for the benefit of creditors, see, further assignment, v, Trustee Process, III, (10).] FRAUD, III, (3), (4). 613 169 A deposit of money by an agent with lis principal, to secure him against loss, is * M ' Faulkner*. Waters, (11 P.) 28 473. 170. If a debtor makes a conveyance to a creditor for the purpose of securing him, and also of defrauding other creditors, the mere acceptance thereof by the grantee, with knowl- edge of the fraudulent intent, is not such a participation in the fraud as avoids it as to the others. , Banfield v. Whipple, (14 A.) 96 13. 171. A conveyance by an insolvent of all his property to one creditor, for the purpose of securing him, is .not a fraud al common law; although both knew that its effect would be, to deprive other creditors of the power of reaching the debtor's property by legal process. Giddings v. Sears, 115 505; Bristol Co. Sav. Bk. v. Keavy, 128 298. 172. But such intent and knowledge have a tendency to prove fraud upon a sale; and if the jury find that there is no real sale, or the sale was made to defraud creditors, the trans- action is void as to them. Bristol Co. Sav. Bk. v. Keavy, 128 298. [As to the present rule, see, also. Bankruptcy, IT, (3); iiiSOLVEHT, VIII, (i) ; IX.l 173. A conveyance to trustees for the pay. ment of certain debts, is void against other creditors, unless assented to by all the preferred creditors. Widgery v. Haskell, 5 144. 174. But where the grantee is also a preferred creditor, his assent is taken to be in the capacity of assignee and creditor. Hastings v. Baldwin, 17 552; Harris f. Sumner, (2 P.) 19 129; Everett ». Walcott, (15 P.) 32 94. ) See Assignment, V.l 175. An absolute transfer to the cashier of a flank, with the understanding that the property is to be applied to pay a debt to the bank, is not fraudulent, but the surplus may be reached oy trustee process. New England Ins. Co. v. Chandler, 16 #10. (4.) Voluntary transfer or conveyance. ISee, also, Assignment, V; Gift.) 176. A conveyance made upon the meri- torious consideration of blood or affection to a cmia, or as a settlement to a wife, is not per se Wwi -/? d void as t0 existing creditors. «taZTV« 1S so ' de P en . Phinney, (7 A ) 89 146. 185. Want of consideration must be proved by a subsequent purchaser, although none is mentioned. Boynton v. Pees. (8 P ) 25 329. 186. A voluntary conveyance, made in good faith, pending an action in favor of the grantor, is good against a judgment for the defendant's ' Pelham ®. Aldrich, (8 G.) 74 515. 187. A surety for the performance of an award is not such a debtor, that the plaintiff can impeach a voluntary conveyance by him, pendins the submission. Pales v Thompson, 1 134 188. Where a husband conveyed his life es- tate in his wife's land to her father, who, being insolvent, afterwards conveyed it to her, in order to prevent its being taken by his creditors, the conveyance was adjudged void as against the 614 FEAUD, HI, (4); IV, (1). latter, although, the first conveyance was upon a parol trust for her benefit. Smith v. Lane, (3 P.) 20 205. 189. Although a conveyance to a child was made in fraud of creditors, that is no defence to an action by the child, against one who has received the proceeds. Fairbanks «. Blackington, (9 P.) 26 93. 190. Where land was conveyed to husband and wife in equal shares, and conveyed by them to a trustee for the wife of one half of the land, in consideration that she had joined in convey- ing lands devised to her, it was held, that the latter conveyance was void as to existing credi- tors of the husband, he being then insolvent. Williams D.Thompson, (13 P.) 30 298. 191. A reconveyance of land conveyed to the grantor by a woman, in contemplation of mar- riage between them, where the marriage was void, is valid against his existing creditors. Forbush v. Willard, (16 P.) 33 42. 192. A deed from father to son, on condition of supporting the grantor, or in consideration of an agreement for such a support, is pre- sumptively but not conclusively fraudulent. Gunn v. Butler, (18 P.) 35 248; Slater «. Dudley, (18 p.) 35 373. 193. A conveyance and transfer by one part- ner to another of real property of the grantor, and all his interest in the firm, upon a covenant to assume all the grantor's liability as a mem- ber of the fi.m, is valid. Guild ». Leonard, (18 P.) 35 511. 194. A mortgage to secure the debtor of an- other, is not a voluntary conveyance. Marden «. Babcock, (2 Met.) 43 99. 195. A conveyance by the mortgagor to the mortgagee of the equity of redemption is not voluntary, if the value of the land dees not exceed the debt. Williams «. Robbins, (15 G.) 81 590. 196. A promise of marriage, given by the grantee to the grantor, is a sufficient considera- tion, and validates the conveyance against cred- itors of the grantor, although his death prevents the marriage. Smith v. Allen, (5 A.) 87 454. 197. Where a married woman, whose hus- band has received the purchase price of her land, joins in a conveyance of her other land, in consideration of the execution by her hus- band, to their daughter, of a mortgage for a larger sum than the consideration of the last conveyance, the mortgage is not fraudulent per se. Brooks ». Dalrymple, (12 A.) 94 102. 198. Where a deed conveys land, including the land in question, for an entire consideration, the value of all the land conveyed cannot be shown, to lead to the inference that the land in question was conveyed without consideration. Blood v. Rideout, (13 Met.) 54 237. 199. A conveyance of land, in good faith, from A to B, is a sufficient consideration for a mortgage from B to O, and payment of A's debtsby C will support the mortgage as to him; and if the debts are less than the amount secured by the mortgage, that is only evidence upon the question whether it was fraudulent. Parker v. Barker, (2 Met.) 43 423. 200. An assignment by a husband, in trust for his wife and for their children, of the wife's distributive share in her father's estate, which he has not reduced to possession, is valid against his creditors. Gassett v. Grout, (4 Met.) 45 486. 201. Where land under mortgage was con- veyed to A in trust for a wife, and paid for by money belonging to her before her marriage, and after her divorce A conveyed it to her; but before the divorce, the husband purchased the mortgage, and entered for foreclosure under the R. S., and then conveyed to B, it was held that the assignment to the husband was not fraudu- lent as to the wife or the mortgagor, and that B's title was good. Howard v. Howard, (3 Met.) 44 548. IV. Evidence in Cases of Fraud. IAs to the competency of proof of other acts, etc., of fraud, see Evidence, I, (3) ; as to the burden of proof and prima facie proof, see Evidence, III; as to presumptions, see Evidence, IV, (7); IV , (8); as to mtent, see Evidence, IV, (I); IX, (4). See, also, In- solvent, IX, (2).l (1.) In general. 202. Where goods have been obtained by fraud, the burden of proof is upon him who claims that he is a bona fide purchaser for value. Easter «. Allen, (8 A.) 90 7; Haskins v. Warren, 115 514. 203. Upon the question whether goods were purchased fraudulently on credit, evidence that the party overdrew his bank account is com- petent. Haskins v. Warren, 115 514. 204. So is evidence that soon afterwards he sold them to another, and then filed a petition in bankruptcy. Haskins v. Warren, 115 514. 205. So is evidence, as against the purchaser, of the amount of his liabilities; and the testi- mony of the assignees in bankruptcy is compe- tent upon this question. Haskins 1>. Warren, .115 514. 206. In support of the proposition that a trader bought goods, without intending to pay for them, evidence that his shop was closed and found empty soon afterwards is competent. Skinner t>. Flint, 105 528. 207. Upon the question whether a sale was made to defraud creditors, evidence of the pur- chaser's insolvency is admissible. Odiorne v. Bacon, (6 C.) 60 185. 208. Arranging a transaction so as to furnish facilities for fraud, and attempting a fraud under it, although long afterwards, are compe- tent to show that the fraud was originally con- templated. „_ H „ n Lynde v. McGregor, (13 A.) 95 172. 209. In an action by the administrator of a mortgagee to recover possession of land mort- FEAUD, IV, (1). 615 eased to secure a, note, it is a defence that the note was given without consideration; and the nlaintiff cannot rebut the defence, by showing that it was also given to defraud the mortgagor's Wearse v. Peirce, (24 P.) 41 141. 210. For rulings, as to the competency and effect of particular acts, upon questions of fraud, see: Upon the allegation, that goods were marked and paid for at a greater weight than the true weight: that certain bales weighed less, that there was a shrinkage in the purchaser's stock, Harris v. Thayer, 125 443. Upon the questions, whether goods purchased in process of manufacture, immediately before the purchaser's bankruptcy, were purchased in good faith, and whether the defendant's pur- chase from him was in good faith: erasures and alterations in the purchaser's books, the disposition of the purchase money, that he said they might come back to be finished, etc. Skinner v. Flint, 105 528. Upon the question, whether a premium note was procured by fraudulent representations, as to the condition of the insurance company: that ; the funds paid in for instalments on the stock were not entered by the treasurer in the books, or deposited in bank, and that the shares of other corporations, issued in the name of the presi- dent, and which were to have been purchased with such funds, were shortly afterwards trans- ferred by him to the persons from whom they were received. Fogg v. Griffin, (2 A.) 84 1. Upon the question, whether the settlement of an action of slander was effected while the plaintiff was drunk, by means of threats to arrest him: that the plaintiff had been drunk for the greater part of the time during several weeks, to the defendant's knowledge, and that , the alleged slanderous charge was true. Foss v. Hildreth, (10 A.) 92 76. 211. In replevin for goods obtained by fraud, . against one who claims under a subsequent pur- chase, the intent to defraud cannot be shown by declarations, made after the completion of the transaction, by a third person, to whom the plaintiff was referred by the vendee for infor- mation; or by proof that the plaintiff found that a third person, whom the vendee subse- quently introduced to him as doing business at a particular place, did no business there Easter e. Allen, (8 A.) 90 7. 212. A declaration by a mortgagee and cred- itor, to the other creditors of the mortgagor, that if they would accept another mortgage nom him on the same property, and give him time, he, the mortgagee, would relinquish his claim on the property, is presumptive, but not conclusive, proof, that the first mortgage was fraudulent. Parker v. Barker, (2 Met.) 43 423. 218. Where a party to an oral agreement, wno is unable to read or write, affixes his mark tmS P * pe ^' su PP osill g that it contained the mi •!? tne agreement, oral testimony is ad- missible to show that the terms of the written contract differed from those of the oral con- tract; and a finding that the writing was fraudu- lently obtained is justified, although no repre- sentations were made. Trambly «. Bicard, 130 259. 214. Fraud may be proved from the acts and conduct of a party, quite as effectively as from his declarations. Trambly v. Ricard, 130 259. See, also, Emerson v. Brigham, 10 197; French «. Vining, 102 132. 215. In an action for fraudulent representa- tions as to the pecuniary ability of A, a witness may testify that he had a claim against A, which was settled, two months after it was due, by a note indorsed by the defendant, to show that the defendant knew that A could not pay his debts in the ordinary course of business. Safford v. Grout, 120 20. 216. In such a case, an adjudication in bank- ruptcy, seven months after the note was given to the plaintiff by A, is competent for the pur- pose of admitting proof of claims by the defend- ant against A. Safford v. Grout, 120 20. 217. In an action for conversion of coal, sold through the fraudulent representations to the plaintiffs' agent, by one defendant, participated in by the others, that the coal was for C. F. C. & Co., in order to prove that they relied upon and were misled by such representations, the plaintiffs may prove the agent's orders to for- ward the coal, the bills of lading therefor, the invoices, and transcripts thereof delivered to the defendant so representing. The bills of lading and transcripts of invoices are also competent, to show that the defendants knew that the plaintiffs supposed that they were selling to C. F. C. & Co. Packer v. Lockman, 115 72. 218. Evidence of the price at which the de- fendants sold the coal is admissible, as tending to show knowledge by all the defendants of the fraud of one. Packer v. Lockman, 115 72. 219. In an action for fraud in the sale of a horse, the defendant may prove a conversation, when he bought the horse, and from which he derived all his knowledge of it. Beach v. Bemis, 107 498. 220. In an action for the price of land sold, the defendant's oral representations may be proved to show fraud, but not a warranty; and they are presumed to be material. Holbrook t>. Burt, (22 P.) 39 546. 221. So as to representations in an action for deceit in the sale of goods by a written contract. Salem Rubber Co. ». Adams, (23 P.) 40 256. 222. In an action for fraud in the sale of a note, the declarations, at the time of the sale, of the broker employed by the defendant to sell it, are competent. Lobell v. Baker, (1 Met.) 42 193. 223. For a ruling that certain evidence was not sufficient, to show that the defendant was induced to sign the notes in suit, by any fraud of the plaintiff, see Jackson v. Olney, 140 195. 616 FEAUD, IV, (2). (2.) Fraudulent conveyance or transfer, [See also, numerous cases in ante. III, (1), and III, (2)1 ' 224. Upon the issue, whether a conveyance of real property is fraudulent as to creditors, the testimony of the register of deeds of the district, that he has searched his records, and found no other property standing in the grantor's name, is competent Bristol Co. Sav. Bk. e Keavy, 128 298. 225. In an action for conversion of personal property, attached upon a writ against the plain tiff's vendor, evidence of an offer to sell the property to a third person, made by the vendor after the sale to the plaintiff, and without his knowledge, will not warrant a finding that the sale was fraudulent. McAvoy v "Wright, 137 207. See, also, Lincoln v. "Wilbur, 125 249. 226. "Where A sold part of a vessel to B, and the remainder to C, and subsequently they re- sold to him at different times, evidence of fraud in B's transfer is no proof of fraud in O's. Boyd v. Brown, (17 P ) 34 453. 227. Antedating an indorsement, after an attachment, to make it correspond to the time when it ought to have been made, may be ex plained, and is a circumstance for the jury Boyd v. Brown, (17 P.) 34 453. 228 Upon the question of fraud in a transfer of personal property, proof that the vendee afterwards conveyed a portion of it, with other property, to a creditor of the vendor, as security for a claim for which the vendee was surety, is inadmissible to rebut the inference of fraud Kimball v Thompson, (4 C.) 58 441 229. Upon the question whether a mortgage of chattels was given to prevent a judgment creditor of the mortgagor from taking them on execution .where the answer and affidavit, filed by the mortgagor in the action wherein the judgment was rendered, set up as a defence non- performance of a bond of indemnity, it is com- petent, as tending to show fraud in the mort- gage, to prove that the bond of indemnity was forged and fraudulent. Mansir v Crosby, (6 G.) 72 334 230. The production of a judgment against the grantor, charged with fraud, and of the note on which it was rendered, are prima facie evidence that the party producing them is a bona fide credi'or Reed v Davis, (5 P.) 22 388. 231. A conversation between the grantee and a third person, in the presence of the grantor, is admissible to show that a conveyance was fraudulent O'Neil s. Glover, (5 G.) 71 144 232. The acts or declarati ns of the grantor, prior to the conveyance, are admissible to show that he had a f raudul nt intent, although the grantee was not present, but the grantee's knowledge thereof must be proved. Poster «. Hall, (12 P.) 29 89 233. Although the testimony, as to the execu- tion of the deed, proves that the grantor was in failing circumstances, the burden of proof that it was fraudulent is upon the party so assert- ing. Foster v. Hail, (12 P.) 29 89 i 234 For the purpose of pioving the fraudu lent intent, evidence of other fraudulent con veyances by the grantor, about the same time, is competent, without connecting the grantee with them Foster v Hall, (12 P ) 29 89 Taylor e Robinson, (2 A,) 84 562 I See, also, Evidence. I <3).| 235. If the grantor is joined as defendant, although only as the grantee's hei , his declara' tions, after making the deed, are competent, Wads ., orth v Williams, 100 126. 236. If the purpose of a conveyance of a married woman's land was to place her hus band's interest, as tenant by the curtesy initiate, beyond his creditors' reach, and the grantee participated in that purpose, it is competent to prove that fact, in an action to set aside another conveyance as fraudulent to show the relation of the parties to each other Lynde v McGregor, (13 A.) 95 172 237. The question of fraudulent intent is for the jury exclusively, Marden v Babcock, (2 Met.) 43 99, 238 If there is any evidence on that question to go to the jury, it is proper to refuse to in- struct them, that proof the genuineness of the debt, secured by the mortgage in question, is sufficient to establish its validity. Stebbins 1> Miller, (12 A ) 94 591 239 And where various circumstances have been proved for that purpose, the mortga- gee has no ground of exception to the refusal of the court to single out some of them, and withdraw them from the consideration of the jury, although, if taken alone, they would not be evidence of fraud; if all the ciroumstances, taken together, -will warrant a verdict finding fraud Stebbins v Miller, (12 A ) 94 591 240. The clause in a deed, acknowledging the consideration, is the lowest species of prima facie evidence of that fact Clapp t> Tiriell, (20 P ) 37 247 241 If the sum, acknowledged as the consid- eration in a mortgage, is much larger than the sum actually paid, that is still only presumptive evidence of fraud, which may be rebutted Parker v. Barker, (2 Met ) 43 423. 242 Where the grantor testifies that he did not intend to delay or defraud creditors, although he remained in possession, and that his subse- quent conveyance of part of the land, was through a mistaken supposition that it was not included in the first deed, evidence that he sub- sequently declared himself to be the owner of the land, and offered to mortgage it, is not ad- missible to contradict him Gates e. Mowry, (15 G.) 81 564. 243. The following rulings have been made, respecting the competency of particular matters, upon issues relating to conveyances to defraud creditors Where a mortgage is in question, that the mortgagee was never known to have any means or to be engaged in any business, is competent. Stebbins v. Miller, (12 A.) 94 591. "Where a deed is in question, after evidence that the sale was on credit and without secu- rity, and that the grantee was not reported to FRAUD, IV, (2); V, (1). 617 he in good circumstances, it is competent to show also that he had owed a particular debt teI WfM»on,(6A) 87 312. So as to the general reputation as to credit and responsibility of all the parties. Cook v Mason, (5 A.) 87 212; Sweet- sersi. Bates, 117 466 So that the grantor, a few months afterwards, mortgaged all his personal property, subject to execution. Sweeteer v. Bates, 117 466 So that a lawyer, who had a claim against the srantor, could find no attachable property Clark ii Chamberlain, (13 A) 95 257 In defence it is competent to show, that the conveyance was made with the consent of some of the grantor's creditors Winchester v Charter, 102 272 It Is competent to show, on the question ' whether the grantee paid full consideration, that, by means of several intermediate convey. ances and chattel mortgages, the consideration was in fact raised upon the land conveyed Anderson v Edwards, 123 27S) Treat v Curtis, 124 348 So, on the issue of fraud, that the deed was not recorded till ten months afterwards, that the grantor continued to exercise acts of owner ship, and that the grantee made an oral promise to support the grantor Ricei) Cunningham, 116 466 In defence it is competent to show, that the grantee conveyed the land three years previ- ously to the grantor, who paid in stock, under an agreement that, if the stock depreciated, he would allow therefor, and that the conveyance was made in settlement of a claim by reason of depreciation of the stock. Enowlton® Moseley 105 136. 244 The ignorance of the grantor, respecting an incumbrance upon the property, has no bearing upon the issue, whether the grantee became his creditor at the time of the convey ance, or subsequently when he removed the incumbrance Petersons Farnum, 121 476. 245 On the issue, whether a purchaser under a mortgage had knowledge of the fraud in the sale, it is competent to show, by oral testimony, that the mortgagor had a valuable interest in the property, by proof of the real amount and ehaiacter of the incumbrance Robinson v. Bliss, 121 428 246. Evidence that the grantor, ten months after the conveyance, appropriated other prop- erty lo the payment of his debts, is incompe- tent to rebut the presumption of fraud. Rice v. Cunningham, 116 466 247. Where there is but one creditor, the amount of his claim is material upon the ques- tion of fraud; and if he denies, on cross exami- nation, that he ever fixed it at a less sum than that to which he testifies, he may be contra- dicted by proof of that fact. Couillard v. Duncan, (6 A.) 88 440. 248. Evidence that aiawyer, having aWemand against the debtor, could not find any attachable Property is not sufficient to show indebtedness Clark v Chamberlain, (13 A ) 95 257. Vol. I — 87 249 Evidence of an admission by the debtor, that he was owing several little bills, may be submitted to the jury, without instructing them, that it is not sufficient to warrant them in find- ing, that he was indebted to any other creditor, than the one seeking to set aside the conveyance, or that the burden of proof is on the latter to show, how much the debtor owed, beyond that creditor's demand. Clark». Chamberlain, (13 A.) 95 257 V Remedies. [See, also, Attachment; Bankruptcy; Insolv- ent, Trustee Pkocbss.O (1.) At law. tAs to the right of the person injured by a fraud to waive it and bring assumpsit see Assumpsit I, (3).l 250. A person, defrauded upon the sale of goods, may rescind the sale, and maintain re- plevin for the goods, or trover for the conver sion thereof, against any person, other than a purchaser in good faith, for value, and without notice of the fraud. Burlington v. Gerrish, 15 156, Badger v. Phinney, 15 359, Wiggin v Day, (9 G.) 75 97, Atwood s Dearborn, (1 A.) 83 483, Dow v Sanborn, (3 A ) 85 181. [See, also. ante. I II.' 251 One who has been induced, through the fraudulent representations of the agent of an insurance company, to take out a policy of in surance, may rescind the policy with the com pany, and recover the premium against the agent. Hedden v. Griffin, 136 229 252. Where a chattel mortgage is fraudulent against creditors, a judgment creditor of the mortgagor may levy his execution upon the property, although it has not been previously attached. Sherman v. Davis, 137 132. [As to the right of a creditor, having recovered a judgment, to levy upon land conveyed in fraud of creditors, see ante. III, and Execution III, (1)} III, (3).l 253 An assignment of a chose in action, made in fraud of creditors in New York, and void by the law of that state, is void here; and the remedy is under the lex fori. Drake v. Rice, 130 410 254. "Where two or more persons are deceived and injured in the purchase of real property jointly, they may maintain a joint action, to re- cover damages against the person, by whose fraudulent representations they were deceived. Medbury v. Watson, (6 Met.) 47 246. See, also, Baker v. Jewell, 6 460; ex plained in Patten v. Gurney, 1 7 182. 255. An action for fraudulent representations upon a sale, may be maintained against two persons, if both made such representations, al- though there was no conspiracy, and one only profited by the fraud; and an allegation of con- spiracy need not be proved Patten v. Gurney, 17 182, Stiles v. 618 FKAUD, V, ,(1), (2). White, (11 Met.) 52 356; Hayward v. Draper, (3 A.) 85 551. 256. So where a partner, or a joint owner, or an agent for a partnership, in the course of his business, makes a false representation, the part- ners or owners are all liable. Locke v. Stearns, (1 Met.) 42 560; Cook v. Castner, (9 C.) 63 266. White v. Sawyer, (16 G.) 82 586. [See, also, Partnership, II, (8).) 257. If the declaration sets forth several rep resentations, some of which are actionable and some not, a general instruction to the jury that the plaintiff can recover, if the fraudulent representations are satisfactorily proved, is not open to exception. Pedrick v. Porter, (5 A.) 87 324. 258. An action for fraudulent representations on the sale of goods, will not lie, if the vendee, when sued for the price, has obtained a deduc- tion therefor. Burnett v. Smith, (4 G.) 70 50 259. Where two cross actions are tried to- gether, one for the price and the other for the fraud, the jury may render a verdict for the defendant in the first, and for the plaintiff in the second, for the excess of damages over the price; or, if they are less than the price, for the plaintiff in the first action for the balance, and for the defendant in the second. Cook v. Castner, (9 C.) 63 266; Star Glass Co v. Morey, 108 570. 260. To an action by the buyer of cotton in bales against the seller, to recover damages for fraudulent packing, a general usage of the trade, requiring notice, in such a case, as early after the discovery as circumstances will allow, and that the seller be furnished with the marks, numbers, etc., and failure to comply therewith, constitute a good defence. Casco M. Co. v. Dixon, (3 C.) 57 407. 261. An allegation that A falsely represented himself to the inhabitants of the town of W, as an agent, authorized in behalf of the town of D, to make contract to repair a bridge between the two cowns, is not supported by proof that, as one of the selectmen of D, he met the select- men of W, and joined them in a contract with B to repair the bridge. Webster v Lamed, (6 Met.) 47 522. 262. One who has been induced by fraud to sell, and put on a billiard table, a removable cover, may rescind the sale and remove the cloth, although at the same time he sold to the same vendee another table, and took a mortgage on both tables as security for his entire demand. Perkins v. Bailey, 99 61. 263. Where one induces another, by fraudu- lent representations, to exchange chattels for an invalid deed of land, the grantee may recover the chattels, and the deed is admissible in evi- dence without calling the subscribing witness. Skinner v. Brigham, 126 132. (2.) In equity. [See, also, Corporation, IV; VI j VIII; Equity Jurisdiction, II, (10); II, (12)0 264. For rulings as to the limited jurisdiction Of equity in cases of fraud, before St. 1855, Ch. 194; G. S., Ch. 113, §§ 1, 2; P. 8., Ch. 151 88 1, 2, see 8S Mitchell v. Green, (10 Met.) 51 \m Whitney «. Stearns, (11 Met ) 52 319 Goodrich v. Staples, (2 C.) 56 258 Livermore v. Aldrich, (5 C.) 59 481 Boyden v. Partridge, (2 G.) 68 190 Wheatland v. Lovenng, (10 G.) 76 16. 265. Under the st. of 1855, the court will not enforce the specific performance of oral con- tracts within the statute of frauds, by treating the nonperformance as a constructive fraud Buck v. Dowley, (16 G ) 82 555. ' 266. For various rulings, as to constructive fraud, charged upon the directors of a railroad corporation, in contracting for the contraction of its road, and constructing the same, see Union Pacific Bailroad v. Credit Mobi- lier, 135 367. 267. Before a court of equity can convert a man into a trustee, on the ground of fraud, it must be able to see, with some reasonable cer- tainty, that the fraud was the means of depriv- ing the plaintiff of the property which he seeks to follow. Collins v. Sullivan, 135 461. 268. And where A, upon the promise of a sum of money, agreed to assist B in finding a person to advance money, to enable B to pur- chase back his land, a mortgage upon which had been foreclosed; and B, relying thereupon, abstained from trying to get the money else- where, but A purchased for himself, with his own money, and took the deed to himself; B has no remedy in equity. Collins v. Sullivan, 135 461. 269. A bill in equity cannot be maintained by manufacturers, under a patent, against other manufacturers of the same article, for falsely and fraudulently representing to the plaintiffs' customers, that the plaintiffs' manufacture was an infringement of the defendants' patent, whereby such customers were induced to buy from the defendants. Boston Diatite Co. v. Florence M. Co., 114 164; Whitehead v. Kitson, 119 484. 270. Where a mortgagor procured his prop- erty to be sold, under a power in the mortgage, to a third person, who advanced no funds, upon, a secret trust for himself, to deprive his wife, from whom he was separated, of her dower; and after the mortgagor's death, she was ap- pointed his administratrix, she may maintain a bill for the recovery of the property, individu- ally and as administratrix, joining the heirs aa plaintiffs. Gibson «. Hutchinson, 120 27. 271. A creditor of one, who has made a con- veyance with intent to defraud creditors, can- not maintain a bill for an account of rents and profits, and to restrain the grantee from com- mitting waste or parting with his title, and the grantor from disposing of a note, received for the ostensible price. Taylor v. Kobinson, (7 A.) 89 253; Mill River L. F. Ass'n v. Claflin, (9 A.) 91 101. 272. A bill lies to redeem a mortgage, and to set aside a release of the equity of redemption, obtained by fraud. Boyden r>. Partridge, (2 GO 68 19e - FEAUD, V, (2). 619 273. Equity will relieve against a partnership agreement, which the plaintiff has been in- duced to enter into by the defendant's fraudu- lent representations, by cancelling the agree- ment, and restraining the defendant from using the plaintiff's name; and having thus obtained jurisdiction, it will compel the defendant to re- pay to the plaintiff the money advanced or ex- pended by him. * Smith v. Everett, 126 304 274. After dissolution of a partnership, equity will compel a holder, chargeable with notice, to cancel a note in the firm name, made fraudu- lently by ono partner; but not a bona fide holder for value. Fuller o. Percival, 126 381. [See also partnership.) 275. .Equity will not relieve against fraud, ■where there is a plain and adequate remedy at law. Suter v. Matthews, 115 253. 276. Thus a bill will not lie to cancel a nego- tiable promissoiy note, obtained by fraud, where the note is past due, and an action upon it is pending in favor of the defendant in equity, against the plaintiff in equity. Suter v. Matthews, 115 253. 277. For cases, where equity jurisdiction has teen maintained, because the plaintiff had not a plain and adequate remedy at law, see Nelson s. Ferdinand, 111 300; Che- ney e. Gleason, 117 557. 278. A bill by a grantor to avoid a deed, which he has been induced to execute by the fraud of the owners of other interests in the land, cannot be maintained, without an allega- tion that the grantee had notice of the fraud, or paid no valuable consideration. Root ». Bancroft, (8 a.) 74 619. 279. Where, upon a bill by an executor, alleging that the defendant A procured from the testator a mortgage to be made, without con- sideration, to a third person, who assigned it to A, and that A assigned it as collateral security to the defendant B, both assignments being made without consideration, and with notice of the fraud, a decree reciting that A fraudulently obtained the mortgage, and directing him to pay to B the sum secured by the assignment to the latter, and to cause the mortgage to be dis- charged within a specified time, was made, it affirmed on appeal. Mason e. Daly, 117 403. • 280. A woman, who voluntarily, and with full knowledge of the facts, joins with other lega- tees, in an assignment of all the interests in a legacy to another, for an inadequate price, can- not maintain a bill to set aside the transaction, .were there was no fraud or fiduciary relation Between her and the assignee, although she was persuaded by him to sig \ Newhall v. Jones, 117 252. 281. One, who has been induced by fraud to purchase a third person's note, secured by a mortgage with a power of sa e, and has sold the Property under the power for less than the sum Q ue upoD the note, before ascer.aining the facts, may have relief against his vendor, with- out exhausting his remedy upon the note. Franklin v. Greene, (2 A.) 84 519. 282. In ascertaining the value of the con- sideration, obtained from the plaintiff in such a case, the court will adopt the sum fixed by the parties, as the value of certain mining shares, transferred by him as a part thereof, if it does not appear to be unconscionable, and no fraud was practiced, and each party had an equal opportunity to judge thereof. Franklin v. Greene, (2 A.) 84 519. 283. An insurance company may maintain a bill to cancel a policy obtained by fraud. Comm'l Ins. Co. «. McLoon, (14 A.) 96 351. 284. A mechanic, building houses for the owner of the land, who was induced by the Litter's fraud to delay signing the building con- tract, until he had placed a mortgage on the land, without consideration, so as to oust the mechanic of his lien, may maintain a bill for cancelment of the mortgage, although by his contract he is not to be paid, until the houses are completed. Hulsman v. Whitman, 109 411. 285. Where the defendants have obtained shares in a corporation, by a fraud upon the plaintiff, in which one acted as the agent of the other, with the latter's knowledge, they are liable in equity to a decree to account therefor, jointly and seveially, and to replace the shares by others held by them at the filing of the bill. Emery v. Parrott, 107 95. 286. Where A, to whom B was indebted, ad- vised C to lend money to B upon a chattel mort- gage, and acted as C's agent in completing the transaction; and with the money thus obtained, B paid his debt to A, A and B having acted in fraud of the insolvency law, but without C's knowledge, it was held, that A's knowledge of the fraud was not imputable to C. Dillaway v. Butler, 135 479. This case explained in Innerarity v. Merchants' Nat. Bk., 139 332. 287. The plaintiff in a suit in equity, un'er St. 1875, Ch. 285; P. S., Ch. 151, § 3, does not, by filing his bill, acquire a lien within the meaning of P. S., Ch. 157, § 47; and the as- signee in insolvency may intervene to have the suit dismissed: but if he does not intervene, the adjudication of insolvency is no bar to the bill. Powers v. Raymond, 137 483. 288. Where the answer in such a suit denies the debt, and demands a trial by jury, the de- fendant is entitled to have issues framed for a jury trial. Powers v. Raymond, 137 483. 289. it property, assigned to defeat creditors, is fraudulently assigned by the assignee for the payment of his own creditors, the trustees, to whom it is so assigned, stand on no better foot- ing than the assignor. Jewett v. Tucker, 139 566. See, also, Holland v. Craft, (20 P.) 37 321; Clark v. Flint, (22 P.) 39 231; Glidden v. Hunt, (24 P.) 41 221. 620 FEAUDS, STATUTE OF— GIFT, I. Frauds, statute of. [See Statute op Frauds.] Fraudulent conveyance. [See Fraud, III; IV; V.] Fraudulent representations. [See False Pretences j Fraud, II ; V.] Freight. [From justice or from slavery! see CONSTmr. tional Law, II, (5).] Friend. [See Quaker.] Fugitive. [See Carrier, I, (8); Insurance, Vj Lien. I; Shipping, III, (2).} ' G. Game, unlawful. (See Amusement, IE.] Game cock. [See Amusement, II, (2) ; Betting and Gaming.) Gaming. [See Betting and Gaming.] Garnishment. [See Trustee Process.] Gas, injury from. [See Negligence, IB, (3).] General average. [See Insurance, art. 207; V, (12);Shippino, III, (4).] General court. 1. Under G. S., Oh. 5, § 9; P. S., Ch. 5, § 13; and St. 1877, Oh. 181; P. S., Ch. 16, § 41, a joint standing committee of the legislature has no authority to contract a debt, in behalf of the Commonwealth. Washburn «. Comm. 137 139. [See, also, Constitutional Law, III, (2).] Gift. I. General Rules. II. Donatio Mortis Causa. [See, also, Devise and Bequest; Fraud, in, (4); Husband and "Wife, IV, (1); Savings Bank; Trust.] I. General Rules. 1. Without delivery of the subject of a gift, the title does not pass. The delivery must be actual, so far as the subject is capable of de. livery, and must be made to the donee, or somq person for him, with his consent, and for his use. This is the rule in equity as well as at law. Miller ». Le Piere, 136 20. See, also, Grover v. Grover, (24 P.) 41 261; Sessions v. Moseley, (4 C.) 58 87; Blake v. Pegram, 109 541. 2. The delivery may be constructive or sym- bolical, if the goods are so situated that posses- sion of, or dominion over them, may be thus completely parted with, and transferred by the donor. Miller v. Le Piere, 136 20. 3. 3ut until such delivery is made, the gift is revocable, and the title remains in the donor. Miller ®. Le Piere, 136 20. 4. The delivery of a writing, stating that the donor delivers to the donee a cow, which has been wrongfully tiken from his possession, does not complete a gift, as one cannot deliver possession who has none. Miller v. Le Piere, 136 20. 5. The gift of a chattel, accompanied with delivery, passes the title as against the donor and his successors. Faxon v. Durant, (9 Met.) 50 339. 6. Such a gift of a third person's promissory note, payable to the order of the donor, is good without indorsement; and the donee may sue, in the name of the donor's administrator, without the latter's consent. Grover v. Grover, (24 P.) 41 261; Eastman ». Woronoco Sav. Bk., 136 208. 7. It does not affect the validity of the gift, that the donee returned the note to the donor, to keep or collect for his use. Grover v. Grover, (24 P.) 41 261. 8. Shares, transferred by a father to himself as trustee for his daughters, but without their knowledge, and of which he retained the con- trol, and drew the dividends upon them, are not given, but are assets of his estate after his death. Cummings v. Bramhall, 120 552. GIFT, I, II. 621 » But a calf, given by a father to his daugh- ter liviag with him, and brought up by her by fend is sufficiently given, although, after the calf became a cow, the milk was used in the family, and the cow was fed upon the father s farm ' Martrick e. Linfield, (21 P.) 38 325. 10 A bell, subscribed for by inhabitants of a parish, and hung in the meeting house, is pre- sumptively given to the parish; but where, at the time, the parish voted that the subscri- hers should have leave to hang their bell in the meeting house, and it should remain their prop- erty the presumption is rebutted. '' West Springfield Par. v. Root, (18 P.) 35 318. 11. Household furniture, placed by a father in his daughter's house, at the time of her mar- riage, is presumptively given to her: but the presumption may be repelled by her receipt, acknowledging it to be a loan, although her husband was ignorant of it. Nichols v. Edwards, (16 P.) 33 62. 12. The question whether there was a suffi- cient delivery is for the jury. Nichols ». Edwards, (16 P.) 33 62; Hunts. Hunt, 119 474. 13. Where A lent a bond to the defendant, and took his receipt, and afterwards, while sick in bed, orally gave it to the defendant, and promised to give him up the receipt when he should be able to get it, it was held, in an action by A's executor, that the delivery was a ques- tion of fact. Hunt 8. Hunt, 119 474.' 14. Where a gift is procured by undue influ- ence, the executor or administrator of the donor may recover the same from the donee. Woodbury 8. Woodbury, 141 329. 15. In such an action, it was held, that, after a witness had testified to a conversation with the donor, about two years before her death, disclosing her state of mind towards her sister, because of the condition of the sister's son, evidence on the part of the plaintiff, that the sister had living with her a son, who was par- tially blind at the time of the gift, was com- petent. Woodbury 8. Woodbury, 141 329. , 16. The burden of proof to establish undue influence is, in such a case, on the plaintiff, taking all the evidence and natural presump- tions together. See, also, this case, for various runngs, as to the evidence of undue influence. Woodbury 8. Woodbury, 141 329. 17. Upon the issue whether a gift of a note was made, statem nts of the donor, who died before the trial of the action on the note, made before andafter the alleged gift, and inconsist- ent therewith, are competent to contradict the donee, although not made in the latter's pres- ence. Whitwell 8. Winslow, 132 307. 18. It was held, however, in another case, that declarations of the deceased, that the prop- erty was not his, are admissible for the alleged ttonee; and his declarations that it was his are aot admissible for the executor or administra- tor, suing to recover the alleged gift. Fellows e. Smith, 130 378. [See, also, post, arts. 42, 43, and Evidence. I, (6); 19. The delivery to the donor of a savings bank pass-book, with a written assignment, order, or other paper, to the effect that the- money on deposit is the donee's, is a sufficient gift of the money. Eastman 8. Woronoco Sav. Bk. 136 208. See, also, Kimball v. Leland, 1 lO 325; Poss 8. Lowell P. C. Sav. Bk., Ill 285; Davis 8. Ney 125 590. 20. And after the donor's death, the donee may recover the money in an action, in the ad- ministrator's name, brought without his con- sent. Foss 8. Lowell F. C. Sav. Bk., Ill 285. [.See, also, post, art. 35.] 21. Notice to the bank, of the donee's claim, entitles him to maintain an action for the money, although the bank has since paid it to the donor's administrator. Eastman v. Woronoco Sav. Bk., 136 208. 22. Semite, that no writing is necessary to complete the gift. Pierce 8. Boston P. C. Sav. Bk., 129 425, cited, post, art. 36. (.See further on this subject, Savings Bank, II.] 23. Where the terms of the deposit or gift were equivocal, it is for the jury to determine them. Ide v. Pierce, 134 260. 24. If A makes a claim upon B, and B gives his note to A, and by words arid acts reason- ably induces A to believe that it is given in set tlement of the claim, it is no defence to the note that B secretly intended it as a gift. Nye 8. Chace, 139 379. 25. Where A gave written directions to B, who had charge of the funds standing to A'a credit in a savings bank, to draw from the bank, a certain sum, and give it to C; and on the pre- sentation of the paper, and a subsequent oral request by A, B declined to draw the money; and after A's death, B, who was his executor, was again requested to pay the money and refused; it was held, in an action by C against B, that there was no perfected gift in A's life- time. Gerry 8. Howe, 130 350. II. Donatio Mobtis Causa. [See, also, Contract, II, (1).] 26. A gift, in contemplation of death, is re- vocable until the death of the donor, and is. void if he recovers. Parish 8. Stone, (14 P.) 31 198. 27. There must be a clear and manifest in- tention to give a thing susceptible of delivery, and an actual delivery at the time, in contem- plation of death. Parish v. Stone, (14 P.) 31 198. 622 GIFT, II— GOOD WILL. 28. On the death of the donor, the property vests presently, without passing through the ex ecutor or administrator. Parish v. Stone, (14 P.) 31 198. 29. But such a gift is subject to the claims of creditors of. the donor; and, if needed for the payment of debts, the executor or adminis- trator may recover the thing given. Mitchell v Pease, (7 C.) 61 350; Chase v. Redding, (13 G.) 79 418; Davis v. Ney, 125 590; Pierce v. Boston P, C Sav. Bk. 129 425. 30 The validity of the gift is not affected by the fact, that the donee takes it for a third per- son, upon a trust, the terms and limitations of which are prescribed by the donor, and may vary according to subsequent events. Clojgh v. Clough, 117 83; Turner ■o. Estabrook, 129 425. 31. But if neither the persons who are to take, nor their proportions, are clearly desig- nated, the trust fails, and the donee cannot take to his own use. Sheedy «. Roach, 124 472. 32. A married woman may now make a valid donatio mortio causa, without her husband's Marshall v. Berry, (13 A.) 95 43.. 33. And such a gift between husband and wife is valid. Whitney «. Wheeler, 116 490; Mar- . shall v. Jaquith, 134 138. 34. The donor's own note, payable to tne donee is not the subject of donatio mortis causa. Parish?;. Stone, (14 P.) 31 198. See, also. Bowers v Hurd, 10 427. 35 But a third person's note, or other secur- ity for the payment of money, may be the sub- ject of such a gift; and if secured by a mort- gage, the mortgage passes as incident to it. If the note or other security if not negotiable, the donee may sue thereupon in the administrator's name, without his consent. Parish v. Stone, (14 P.) 31 198; Gro- ver v. Grover, (24 P.) 41 261; Sessions v. Moseley, (4 C.) 58 87; Bates «. Kemp- ton, (7 G.) 73 382; Chase *. Bedding, (18 G) 79 418; Pierce . Reynolds, 116 566. 42. Statements of the alleged donor, tending to show a purpose, existing before and incon- sistent with the alleged gift, are admissible to contradict the donee. Whitney v. Wheeler, 116 490. [See, also, ante, art. 18.] 43. The delivery cannot be proven by subse- quent declarations of the deceased, to a person not connected with the gift. Rockwood v. Wiggin, (16 G.) 82 408. 44. The gift of a deposit in a savings bank *jay be proved by delivery of the pass-book, and a written order for, or assignment of, the money. Sheedy «. Roach, 124 472. 45. And the delivery of the book is sufficient, without any order or assignment. Pierce v. Boston F. C. Sav. Bk., 129 425; Turner v. Estabrook, 129 425. [See, further, Savings Bank, II.] Goods bargained and sold; goods sold and delivered. [See Assumpsit, III , (5) ; Damages, in, (2) ; Fraud. Ill, (1) : Sale ■ Statute of Frauds, III.l Good will. iSee, filso, Contract, III, (1); Fraud, V. Injunction, n, (3).l GOOD WILL— GEAND JUEY. 623 1 A contract, by a physician, for the sale of ■ his practice and good will in a particular town, I. not against public policy. ' Dwighti. Hamilton, 113 175. 3 And an agreement by a country physician, . e lii nff his practice and good will to another nhysician, that no other physician shall, for four years, establish himself as a competitor, unless the increased population of the place snail warrant it, or unless the purchaser shall do some act to forfeit the confidence of the immunity, is not void as in restraint of trade, or uncertain, or insensible. Gilman v. Dwight, (13 G.) 79 356. 3. A hill of sale of a stock of goods in a store, and the good will of the vendor's trade, does not import an agreement not to. engage again in a similar business; and oral testimony is inad- missible to- prove such an agreement, as part of the consideration. Bassett4>. Percival, (5 A.) 87 345. 4. And a receipt from the executors of a de- teased partner to the survivors,' describing them under the name of the former partnership, does not import a consent to their continuing to use the former firm name. Bowman v. Floyd, (3 A.) 85 76. 5. Where F, J, R, and T transacted business at Worcester, .under the firm name of F. & Co., andF, J, R, and C transacted the same business, under the same name, at Cincinnati; and, F having died, J, R, and C continued the business under the same name at Cincinnati, and J, R, and T continued it, with the assent of F's repre- sentatives, under the same name at "Worcester, until their firm was dissolved, and all its orders, correspondence, and good will were sold to T; a hill will not lie in favor of J, R, and C again3t T, to restrain him from using the same of F. & Co. Rogers v. Tainter, 97 291. Governor. [See Constitutional Law, II, (5); III, 01} III. (ll); Conviction and Sentence; Trial, I Vi (D/j Grand jury. [See, also, Constitutional Law, III, (9); Indict- ment, £; XI.] 1. A grand jury may consist of not less than 13, nor more than 23. Crimm v. Coram., 119 326. See, also, Coram, u. Wood, (2 C.) 56 149. 2. Quakers are not exempted or disqualified. Comm. t). Smith, 9 107. . 3. A grand juror cannot sit as a traverse ^ror, on the trial of an indictment found by Comm. ». Hussey, 13 221. jL If - agrand J uror isnot present, when the grand jury is impanelled, sworn, and charged, S wnv5 P l n , Us fellows . after being separately worn and charged. In re Wadlin, 1 1 142. -nrL^ rant ] 1" rors swom b y *e clerk, in the thTTf *° f the oourt ' are le g a % charged with eir dutles ; a°d it is not necessary to the validity of an indictment, that they should be instructed by the judge. Comm. i). Sanborn, 116 61; Crimm v. Comm., 119 326. 6. But a grand juror who, after being sworn, is excused, forms no part of the grand jury by which an indictment was found. Crimm u. Comm., 119 326. 7. "Where the number of grand jurors in attendance is less than 23, the summoning, under G. S., Ch. 171, § 4; P. S.,' Ch. 213, § 4, of more than are necessary to make up 23, is no objection to an indictment found by a legal number. Crimm '». Comm., 119 326. 8. Where, of 23 grand jurors originally sum- moned, five were excused, and seven new jurors were summoned, and six appeared, two of whom were excused, and the 22, with the seventh additional juror summoned, found an indictment, it was ruled that the grand jury was properly constituted. Crimm ®. Comm., 119 326. 9. Where the venire is under the seal of the court, and directs the drawing, selecting, and summoning a grand juror fiom a particular town; and the return, signed by a constable of the town, shows that a particular person was drawn, etc., and he attends and serves, without question as to his identity and qualifications; neither an inconsistency in the description in the return, of the time for which he was sum- moned, nor the want of an indorsement of his name by the town clerk, nor the omission of the name of the town in the address of the venire, or of a statement of his qualifications in the venire and return, affects the validity of an indictment. Comm. «. Moran, 130 281. 10. A term of court, which has been duly opened, is not discontinued by the absence of the judge, without adjournment from day to day, for seven days; nor is an indictment, pre- sented by the grand jury after his return, invalid, because some of the witnesses were ex- amined during his absence. Comm. ii. Bannon, 97 214. 11. A grand juror will not be set aside, be- cause he has originated a prosecution, in a case which will come before the grand jury. In re Tucker, 8 286. 12. Nor is the fact that the forprnan of the grand jury is a tax payer in the town, to which a fine is payable on conviction, cause f&r quashing the indictment Comm. 4). Ryan, 5 90. 13. Qu., whether objections to the personal qualifications of grand jurors can affect an in- dictment, after it nas been received and filed. Comm. 4). Smith, 9 107, Comm. ». Parker, (2 P ) 19 550. 14. Where, by consent of the constable, another man was substituted for the regularly chosen grand juror, and attended, judgment was arrested. Comm. 4). Davis, cited in Comm. v. Par- ker, (2 P.) 19 559, 561. 15. Grand jurors cannot be permitted to state how any member voted, or the opinion ex- pressed by any member, or the evidence on 624 GEAND JURY— GEEAT POND. which an indictment is found, or to disclose the finding of an indictment for felony, unless the perso.i is in custody, or has recognized. Comm. o Hill, (11 C ) 65 137 16. But a grand juroi is a competent witness to prove upon an indictment for receiving stolen goods, that the thief was not a witness before the grand jury, at the term where the in- dictment was found Comm. *. Hill, (11 C.) 65 137. 17 The, provision of the statute, requiring a return of all the witnesses sworn before the grand jury, is directory, and its omission does not affect the validity of an indictment. Comm. v. Edwards, (4 G ) 70 1 18 The defendant in a cause not capital, who has been furnished by the district attorney with a list of witnesses before the grand jury in his case, is not entitled, as of right, to inspect such a return. Comm. v. Edwards, (4 G.) 70 1 19. One indicted for a capital offence is enti- tled as of right, to a list of the witnesses sworn before the grand jury, but not to a list of those whom the government proposes to call at tho trial Comm. ■». Knapp, (9 P.) 26 496; Comm. v. Locke, (14 P) 31 485; Comm. v. Walton, (17 P ) 34 403. 20 The court will not instruct the grand jury, at the instance of a person accused, as to the nature of the evidence proper to be re- ccivcd. Comm. v. Knapp. (9 P ) 26 496. 21. Where a witness, duly summoned, ap- pears before the grand jury, but refuses to be sworn or answer questions, and behaves himself disrespectfully, the jury may require the officer in attendance to take him into custody, and to take him before the court for its direction. Heard v. Pierce, (8 C.) 62 338 Grant. [See, also, Adverse Possession » Deed< Bound- ary Line. Easement. II, (8) Seal. I 1 A grant of land, conferring an entire title, cannot be presumed from possession only, for any length of time shorter than that fixed by the statute of limitations, but possession for a shorter period, with other circumstances indi eating ownership, may justify a jury in find ing a grant. Clark v. Faunce, (4 P.) 21 245. 2 The grant made by the town of Ipswich, in 1650, in trust for a school for that town, con veyed a fee. although it contained no words of limitation The construction would have been different if it had been a modern grant. Ipswich Grammar School « Andrews (8 Met.) 49 584. 3 A town may grant, by vote, without a deed. Springfield v Milier. 12 415. 4 It is not necessary to snow a consideration for a town grant. Thomas v. Marshfield (10 P ) 27 364. 5. The rale of construction that public grants are to be taken most strongly against the grantee, is only to be resorted to, where the language is so ambiguous, that all other rules of construction fail; and words, having, in a private grant, an established and definite mean- ing, are to be taken in the same sense in a public grant. Boston v. Richardson, (13 A.) 95 146. 6. A resolution of the legislature, releasing all the Commonwealth's right to certain lands to settlers in the township, enures as a present giant; and a subsequent deed by the commis- sioners for the sale of public lands is inopera- tive. Mayo «. Libby, 12 339. 7. But a resolution, authorizing the agents for the sale of eastern lands, to determine the individuals entitled, is not a grant, but an au- thority to the agents. Lambert v. Carr. 9 184; Harlow v. French, 9 192. 8. The deeds of the agents of eastern lands, under the resolution of March 5, 1801, are con- clusive between the settlers, as to boundaries. Harlow v. French, 9 192. 9. A grant by the town of Lynn of the use of the water of a stream, flowing from a great pond, with a right to make sluices and build a dam, made before the colony ordinance of 1647, and before any of the land on the stream had been granted, vested a valid title in the grantee. Berry v. Raddin, (11 A.) 93 577. 10. A vote passed by a town, granting to in- dividuals the right to erect a grist mill upon a certain stream, with the use of the stream, is- not a grant of land, unless the town owned the land on which the mill was to be erected. Hadley v. Hadley M. Co., (4 G.) 70 140. 11. As to the construction and effect of a vote of the proprietors of Worcester in 1733, that certain land be left common for the use of the town for building stones, see Green v. Putnam, (8 C.) 62 21 12. As to the effect of certain grants of public lands, and resolutions relating thereto by the legislature, see Thompson v. Bright, (1 C.) 55 420. Granville. 1. Boundary of, see Cold Spring Iron Works v. Tolland, (9C.) 63 492. Grave, violating. [See Burial, III.l Great pond. [See Fish, etc.; Pond.1 GUARANTY, I. 625 Guaranty *, indemnity. L Genebal Bulks . Conbtbuction of pab TICULAB GUABANTIES H. Charging abd discharging the GUAR- ANTOR. I See. also. Bond, lilt (D Collatebal Security ; coSact, IV, (7) : Corporation. VI, (1) : Surety; Ts to ffuaranties of bills and notes, see Blue OF EXCHANGE AND PROMISSOBY NOTE, 1, (4). AS to when a guaranty is requireC to be in writing, see smote or Frauds, II, (2).) I Genebal Rules, Conbtbuction of pab TICULAB GUARANTIES. 1. If the substance and legal effect of an un- dertaking, is a promise to pay a third person's debt to the promisee, if the third person does not pay it, the undertaking is a guaranty. not an original promise, whatever may be the language used, or the form of the undertaking. Babcock v. Bryant, (12 P.) 29 133; Dole v. Young, (34 P.) 41 250; GUI ». Herrick, 111 501; Davis i>. Caverly, 120 414, Hyannis feav. Bk. v. Moors, 120 459, Gamwell v Pomeroy, 121 207. . 2 But an absolute promise is an original un- dertaking, although the consideration may have moved to a third person, and although the third person may also be liable for the same debt. Buval v. Trask, 12 154, Cahill v. Bigelow, (18 P.) 35 369. Chapin v. Lapham. (20 P.) 37 467 Curtis v. Brown, (5 C.) 59 488; Monk ®. Beai, (2 A.) 84 585; Dean v Tallman, 105 443, Thayer v. Wild, 107 449. JSee, further, on this subject, Statute op Frauds, 3 A letter in these words, ' ' Let M have what goods he may want on four months, and lie will pay as usual," is not a guaranty; and, there being no ambiguity in the language, there B no occasion to resort to the surrounding cir cumstances, or the relation of the parties. Baton v. Mayo, 118 141 4 Any undertaking in an agreement, to pay a party's debt, with a further undertaking to mdemnify the party against all suits, costs, damages, etc., by reason of the debt, contains two independent stipulations, and the promisee may recover the full amount, although he has not paid the debt. Famsworth o. Boardman, 131 115. 5 _ A guaranty, made simultaneously with the original contract, is supported by the consider anon ot that contract, and if it is without date, ma there is no proof when it was executed, the wo are presumed to have been simultaneous, Bickford v. Gibbs, (8 C.) 62 154 Baldwin v. Dow, 130 416 ?-. A guaranty, made subsequently to the original contract, requires a new consideration ™ any consideration sufficient to support an ordinary contract will support a guaranty. *'agg v. Upham, (10 P) 27 147: Johnson t. Wilmarth, (13 Met.) 54 416: rerry ,. Swasey, (12 C.) 66 36, Clark 137 1?' 121 330; Jones *' ■ Dow ' Vol, 1—79 7. A seal to the guaranty imports a sufficient consideration. Elliot e. Hayes, (8 G.) 74 164 8. A guaranty that the owner of stock in a corporation shall receive dividends thereon to a specified amount, he paying to the guarantor all he receives above that amount, is legal and valid. Elliot v. Hayes, (8 G.) 74 164. 9. A guaranty by a corporation of a certain dividend upon its preferred stock is absolute, not depending upon earning profits to that amount. Williams v. Parker, 136 204 10 A guaranty upon a note, which does not name the guarantee, enures to the first person who takes it as a valid contract, Baldwin «. Dow, 130 416; Jones o. Dow, 137 119. 11. An indorsement of an overdue note, made in blank, upon a sufficient consideration, imports a guaranty and authorizes the holder to write a guaranty over the signature at the trial. Scott ». Calkin, 139 529 12. Under an agreement to assume and pay all the notes, debts, etc., due from a firm, of which the promisee was a member, •* or which may have been incurred for their benefit," schedules of which were annexed, the promisor is bound to pay a third person's note, specified in the schedule, made payable to his order, and indorsed by him, given by Mm to the firm without consideration, sold by the firm without becoming liable upon it, the maker of which had signed notes to a large amount for the accommodation of the promisor, which fell due at the same time as the note in question. Farnsworth «. Boardman, 131 115. 13. A guaranty of the payment of a note. payable in goods, does not render the guarantor liable for a deficiency in the quantity of the goods, accepted by the guarantee as payment. Carew ». Denny, (8 P ) 25 363. 14. Where such a note was given to one, who was afterwards placed under guardianship and the guardian assigned to the plaintiff the bal ance due on the note "after deducting what may be due to one H, not exceeding $500 (the note then being pledged to H,) and guarantied payment after such deduction, it was held, that the guarantor was liable only for such balance, although H had lost his lien Carew v Denny, (8 P ) 25 363 15. Also, that the guaranty did not include a sum. which had been previously paid and in dorsed on the note, and that H's demand was to be paid in money, and deducted from the value of the goods. Carew v Denny. (8 P ) 25 363 16 Where one guaranties a credit to A not exceeding a certain sum, or provided that credit be given only for a certain sum, he is liable for that sum, although a larger credit was given Sturges ft Robbins, 7 301; Washing ton Bk, ft Shurtleff, (4 Met ) 45 30, Cur tis i> Hubbard. (6 Met.) 47 186. 17 Where, in such a case, the credit was given by indorsed notes, the guarantor is enti- tled to the notes, to the amount of his payment; 626 GUAEANTY, I. and if the exact amount cannot be delivered to him, the guarantee holds, as his trustee, one or more of the notes, as the case requires, to the extent of the balance over the amount delivered to him. Washington Bk. «. Shurtleff, (4 Met.) 45 30. 18. A guaranty that a note will be "good and collectible two years," renders the guaran- tor liable at any time after the note became due, within the two years. Marsh v. Day, (18 P.) 35 321. 19. A covenant to indemnify A against all damages, etc. , which he may incur, in conse- quence of indorsing any notes of B, applies only to indorsements made by A for the accom- modation of B, and not to B's notes given to A for debts, and indorsed by him. Trask ». Mills, (7 0.) 61 552. 20. A guaranty of payment of an overdue note means that it shall be paid on demand. Crocker v. Gilbert, (9 C.) 63 131. 21. And where such a note is secured by a mortgage, the guarantee is not bound first to apply the mortgage security. Crocker v. Gilbert, (9 C.) 63 131. 22. Where a note guarantied is described in the guaranty, an omission to state that it is at- tested, and bears indorsements of payments of interest, does not affect the guarantor's lia- bility. Worcester Co. Inst'n, etc. v. Davis, (13 G) 79 531. 23. A guaranty of the promise of a third per- son to pay for moving a building, renders the guarantor liable for work performed in begin- ning the removal, where the removal is not completed, through the principal's default. Mellen v. Mckerson, (12 G.) 78 445. 24. Where, by a contract between A and B, A was to sell goods to B, and B to pay there- for; and, by another contract, C guarantied to A "the full performance of the foregoing con- tract by B, and the payment by B of all indebt- ness to A, for property sold to B under this con- tract," each contract being dated May 8, but the first having b en delivered June 8, and the second June 25 it was held, that C was not lia- ble for goods sold to B before June 8, but was liable for ah sold after that date, although before June 25; and that oral testimony was inadmissible to show, that the parties intended that the contracts should take effect on the day of their date. Davis S. M. Co. «. Stone, 131 384. See, also, Thomas ». Blake. 126 320. 25. The word "guaranty,'* as used in an in" strument, may mean collateral security. Wilkie ». Day, 141 68. 26. A guaranty of purchases, to be made for a wire mill, does not cover labor performed in rolling iron for manufacture into wire, unless a general usage is proved. Schiessinger «. Dickinson, (5 A.) 87 47. 27. A guaranty of a'u indebtedness incurred by A to B, in purchasing goods, does not cover goods delivered by B to A, to be manufactured and returned to B, and converted by A to his own use, although afterwards, by arrangement between A and B, a bill of sale was made out. Hall v. Peyser, 126 195. 28. Nor does such a guaranty include pur- chases by a partnership, of which A subse- quently becomes a member. Parham S. M. Co. v. Brock, 113 194. 29. But a guaranty of the payment of notes, acceptances, etc., by A, includes notes, etc., given for his debt by himself and other joint promisors. Parham S. M. Co. ■». Brock, 113 194. 30. A guaranty of payment for goods, con- signed to a commission merchant, will not cover a sale to him by the consignor, of goods remain- ing in his hands unsold, although such a cus- tom is proved. Carkin v. Savory, (14 G.) 80 528. 31. A guaranty to a bank of payment by A, of any loan or discount to be made to him, or for his benefit, will not cover his notes, dis- counted for the benefit of an indorser thereon, although he gave the bank a memorandum check therefor, which, after his failure, was charged to him as a loan. Merchants' Bk. v. Heard, (5 C.) 59 461. See, also, Commercial Bk. i>. Eddy, (7 Met.) 48 181 32. A guaranty of " A's indebtedness, present and future," upon condition that immediately upon the sale of goods to him, notice should be given to the guarantor, specifying all the par- ticulars, etc., is limited, so far as it relates to future indebtedness, to future purchases of goods by A. Chace «. Brooks, (5 C.) 59 43. 33. As regards existing indebtedness, a con- dition that the guarantee should furnish a statement of the indebtedness, is net broken by an accidental omission of some items. Chace «. Brooks, (5 C.) 59 43. 34. The guaranty is discharged, if the guar- antee, after notes forming part of the existing indebtness fall due, extends the time by taking a new note from A. Chace «. Brooks, (5 C.) 59 43. 35. A guaranty of the rent, stipulated in a lease for a year, which also provides for the payment of the same rent, if the lessee holds over, covers also the time for which he holds over. Bice •». Loomis, 139 302. See, also, Salisbury?;. Hale, (12 P.) 29 416. 36. Where A, B, and C form a partnership, on terms that each party shall bear the loss re- sulting from his own neglect, etc., and D guar- antees to A and B the payment of C's share of any loss that may accrue to them, this does not cover a sale by A and B to C; nor is D liable for any loss, until the partnership affairs are adjusted, and notice given to him of the sum due from C. Courtis v. Dennis, (7 Met.) 48 510. 37. Where the plaintiff, in a suit against A and B, had guarantied performance by A of such award, as arbitrators should make between him and B in settling their partnership affairs, and B, had sued the plaintiff on his guaranty, recovered judgment for the penalty, and taken out execution for part only, which the plaintiff. GUAKANTY, I; II. 627 had paid i and part of the award was that A should save B harmless from the note in suit) the plaintiff had judgment on the note, although the defendant contended that he was entitled to judgment, in order to avoid a circuity of actions. Carpenter v. Drury, 100 89. 88. Where the plaintiff, who had been applied to by A, to negotiate a loan on a certificate of stock, applied to the defendant, who, suspecting that the certificate was forged, agreed to lend the money if it was genuine, and requested the plaintiff to draw his (the plaintiff's) draft on the defendant for the amount, payable to the order of A, and give it to A for the certificate, agreeing to hold the plaintiff harmless, and in- tending to have A arrested, if the certificate was forged; and the certificate proved to be forged, ana the plaintiff was compelled to pay the draft; it was held that the plaintiff could recover, if he acted in good faith. Holway v. Fuller, 126 188. 39. Where a third person guarantied to a mortgagee, that certain buildings upon the mortgaged land should be fully completed, without unnecessary delay, to the acceptance of the mortgagee; and the houses, which were built upon marsh land upon piles, and had then settled somewhat, settled so much after com- pletion, that it was necessary for the mortgagee - to raise them, and substitute new and longer piles; it was held that the guarantor was not liable. Hyannis Sav. Bk. v. Moors, 120 459, See, however, Norway Plains Sav. Bk. ». Moors, 134 129, cited, -post, art. 58. 40. A contract, the substance of which is that the promisor will be responsible to a certain amount for goods, to be delivered from time to time to A, is a continuing guaranty, because there is no limitation of the amount to be sold or of the credit to be given, but merely of. the amount for which the guarantor will at any tune be responsible Cutler d. Ballou, 136 337. 41. Such a contract imports a succession of future dealings, without limit as to the amounts. Cutler e. Ballou, 136 33V. 42. But this contract, ''Please deliver to A goods as he may want from time to time, not exceeding in amount $300; and if not paid by nun in 30 days, I will be responsible for the same, is not a continuing guaranty, and is exhausted by the first purchase or purchases to the amount of $300, and payment therefor Culler v. BaUou, 136 337. *i 3 A S 1° contracts . which have been ad- juogea to be continuing guaranties, under these Mussey «. Rayner, (22 P.) 39 223 S»'»' Hartshorn, (1 Met.) 42 24 S ci V- S obbs ' (- 12 G -) 78 447 Melendys. Capen, 120 222. ctat ArH^' addresse d to two persons, de- Swif* ih l P romis °r makes himself "re- ndeh S , OT ^ atever ™ount A might become ontll either of them ." * an offer of a wmh^H ^, guaranty, upon which the writer reason*™ }■ ' on ^ in case of notice, within a Srfil? e, A tha . tithas been accepted, and mt ?™> t0 A on the faith thereof Aliens. Pike, (3 C.) 57 238 45. This contract, '* I guaranty the sum of $500 value in glass shades, purchased by my son A from B; terms of purchase to be," etc., is not a continuing guaranty, and cannot be made such by oral testimony of intention or circumstances. Boston & S. Glass Co. v. Moore, 1 19 435. 46. A guaranty, without consideration mov- ing to the guarantor, providing that it shall continue till notice is given of its termination, is revoked by the guarantor's death. Jordan v. Dobbins, 122 168. 47. Where the guaranty is of a debt, yet to be created and uncertain in amount, the guarantor is not liable, unless he has notice, within a reasonable time, that the guaranty has been accepted, and that credit has'been given on the faith thereof. Babcock v. Bryant, (12 P.) 29 133; Mussey v Rayner, (22 P.) 39 223; Dole ii. Young, (24 P.) 41 250; Allen v. Pike, (3 C.) 57 238; Schlessinger v. Dickinson, (5 A.; 87 47. Sed guere. See Paige v. Parker, (8 G.) 74 211; Vinal ». Richardson, (13 A.) 95 521. and post, II. 48. What is a reasonable time is to be de- termined, with reference to the time of the original acceptance of the guaranty, not that of the last sale thereunder. Mussey v. Rayner, (22 P) 39 223; Curtis 1>. Hubbard, (9 Met.) 50 322. ISee, also, Keasonable Time. | 49 . An order by the guarantor upon a third person, for certain goods, given upon a claim made by the guarantee, is not a waiver of failure to give notice. Mussey ». Rayner, (22 P.) 39 223. 50. Where a husband, who had deserted his wife, agreed to pay her $50 a month for her support, and the defendant afterwards executed an instrument, guarantying such payment, and agreeing to pay her on a specified day, $5,000, "and on such payment the payment of $50 a month is to cease, but from the above amount shall be deducted the full amount received up to the time of gross payment," it was held, in an action by the wife, that the provision as to deduction applied to money received from the husband, as well as the defendant, and that as long as she received monthly payments from the husband, the time of making the gross pay- ment was postponed. Thome v. Brown, 139 35 II Charging and discharging the Guar- antor. 51. Demand of performance upon the princi- pal, and notice of his default to the guarantor, are not essential prerequisites to an action upon a guaranty, unless the terms of the guaranty, or the nature of the thing guarantied, require such proceedings. Vinal ». Richardson, (13 A ) 95 531: overruling Ilsley v. Jones, (12 G.) 78 260; and explaining Oxford Bank v. 628 GUABANTY, II. Haynes, (8 P.) 25 423; Babcock e. Bryant, (12 P.) 29 133; Dole v. Young, (24 P.) 41 250; Bickford v. Gibbs, (8 C.) 62 154. See, also, Parknian ». Brewster, (15 G.) 81 271. 52. For cases, where the necessity of notice was stated to depend upon the question, whether the guarantor was prejudiced by want of notice, Salisbary v. Hale, (12 P.) 29 416; Clark o. Remington, (11 Met.) 52 361; Johnson «. Wilmarth, (13 Met.) 54 416; Paige o. Parker, (8 G.) 74 211; Protec- tion Ins Co. v Davis, (5 A.) 87 54. 53. Under an agreement to indorse any paper, which one may give for purchases, to a certain amount each month no liability arises, until the purchases have been made, and the notes given or requested, and notice thereof given to the promisor, within a reasonable time. Schlessinger v Dickinson, (5 A.) 87 47. 54 The promisee is not required to sue the maker of a note, in order to hold one who has indemnified him against his indorsement there- of; and evidence of the maker's ability is in- competent, in an action upon the indemnity, Kempton v Coffin, (12 P.) 29 129. 55. A guaranty that a security is collectible prima facie requires that an action should be brought, and judgment recovered, against the parties thereto Qu., whether it does not also require that an execution should be issued and returned unsatisfied Marsh v. Day (18 P.) 35 321. 56. But proof that the party is insolvent will dispense with the necessity of suing him. Sanford ». Allen, (1 C.) 55 473. 57 So where the guaranty of a note is upon condition that the guarantee will use due diligence to collect it from the maker, proof of his insolvency, and an endeavor to collect 'with- out suit, satifies the condition. Miles v. Linnell. 97 298. 58 A guaranty to a mortgagee, that B shall complete a contract with A, for building houses on the land in a good and workmanlike man- ner renders the guarantor liable for defects in the foundations, which had been put in at the time of the guaranty. Norway Plains Sav. Bk. v. Moors, 134 129, distinguished from Hyannis Sav. Bk. v Moors, 120 459, cited ante, art. 39. 59 "Where several mortgages were given, each on a different parcel, and such a guaranty ap- plied to all, and the mortgagee agreed to assign to A any or all of the mortgages, upon receiv- ing payment of the amount secured, it is no de- fence to an action upon the guaranty, as to the remaining parcels, that the mortgagee, before any demand by A for a transfer, had sold one of the parcels, under a power of sale in the mortgage Norway Plains Sav. Bk. v. Moors, 134 129. 60 In this case A was cognizant, when the guaranty was given, of the defect in the founda- tions, and also that the houses did not cost as much, as it was agreed that they should cost. It was held, that he was not a mere guarantor, and that laches would not prevent the mort- gagee, who was ignorant of the fact, from re- covering, by reason of the defect in the founda- tions. , Norway Plains Sav. Bk. v. Moors, 134 129. 61. Where the guaranty of rent in a lease was prepared to be executed by two, and was. executed by the defendant, upon a represents tion, made by the lessee without the lessor's knowledge, that it was to be executed by an- other; and during ■ the term, the guarantor assented in writing to a reduction of the rent; this ratified the guaranty in its then condition, and rendered the defendant liable. Sartwell ». Humphrey, 136 396. 62. A guarantor that A shall pay for all pur- chases made by him, without specifying the. terms of credit, is not discharged by the cred- itor taking A's note, or A and B's note, on time. Parham S. M. Co. e. Brock, 113 194. 63. So if the note runs no longer than the stipulated term of credit. Curtis v. Hubbard, (9 Met.) 50 322. 64. But a renewal of a note thus taken, or taking a note on time after the expiration of the credit, will discharge the guarantor. Thomas v. Davis, (14 P.) 31 353; Carkin v. Savory. (14 G.) 80 528. 65. A guarantor of a note is not discharged, by the holder taking collateral security of the- maker, without giving him time. Sigourney v. "Wetherell, (6 Met.) 47 553. 66. "Where the guarantor has been discharged by laches of the creditor, payment of interest by him, with knowledge of the facts, waives the discharge; although paid under a threat to sue him for other debts, and under protest that he was not liable. Sigourney ■». Wetherell, (6 Met.) 47 553. 67. Unreasonable laches in giving a guaran- tor notice of the amount due from the prin- cipal, or of his default, will discharge the guarantor, where the guaranty is general. Whiting v. Stacy, (15 G.) 81 270. 68. A guaranty of payment for goods to be supplied to partners is discharged, if one partner goes out of the business, and, without any de- mand upon him, the creditor takes the note of the other, payable to the creditor and another jointly. Bill ». Barker, (16 G.) 82 62. 69. A guaranty of payment of rent due and to become due, for a certain time, from a tenant at will, is not discharged by_ the ejection of the tenant before the time specified, at the request of the guarantor, or the subsequent reception of a new tenant. Vinal e. Richardson, (13 A.) 95 521. 70. A guaranty of payment for goods sup- plied, is not discharged by a return of a portion of the goods by the purchaser, with complaint of dissatisfaction, and a subsequent acceptance thereof by him, with a discount from the origi- nal price; and in such a case the purchaser w entitled only to the original term of credit, and the creditor may declare against the guarantor upon the original sale. Rice «. Filene, (6 A ) 88 230. GUAKDIAN AD LITEM— GUABDIAN, I. 629 Guardian ad litem. War rulings relating to the general powers and ,,£ i a guardian ad litem, and the appointment, ITof such a guardian for an infant, see, also, S.l iv. As to a guardian ad litem for an insane Sendantin a suitfor divorce, see Divobce, II, (1) ; I1I.J 1. If a bill in equity is brought by the hus- band and guardian of an insane woman, against the trustee, under a marriage settlement, to ob- tain contribution in aid of her support, the court will appoint a guardian ad litem for her, .before bearing the ca. se. Davenport v. Davenport, (5 A.) 87 464 2, Where a nonresident becomes insane, pending a bill in equity, the appointment by the court of his counsel as guardian ad litem, justifies proceeding in the cause, without notice to a guardian, appointed in the state of his domicil. Emery v. Parrott, 107 95. Guardian and ward. 1 Appointment; vacating Letters; Re- moval. II. GeNEBAL KTJLES AFFECTING THE RELA- TION. (1.) General powers and liabilities of the (2.) General rights, liabilities, and disabilities of the ward. HI. Management and Disposition of the Estate. (1.) Personal property (2.) Eeal property. IV. Accounting; Compensation. (1.) Mode of accounting; effect of decree; re-opening. (2.) Items chargeable against and allowable to the guardian. V. Guardian's Bond; Bbeach thereof. is&n^=^ casea ' see Exbcutob and Admin- SK23' T ?;trsTEE and Cestui que Trust. For ffi?5Sp? mgs - see Habeas CoWs; SwaSt; JiDKATic ; Parent and Child,] ' I Appointment ; vacating Letters; Re- moval. « I' ^ G - ?•> . Fairbanks, 132 414. 25. An action at law cannot be maintained, while the guardianship exists, in favor of the guardian against the ward, or vice verm. Mason v. Mason, (19 P.) 36 506; Brown «. Howe, (9 G.) 75 84; McLane ■b. Curran, 133 531. 26. For a ruling, that, under the circum- stances of the case, the guardian was not liable for allowing the ward to receive his wages, and apply them to the support of the family, see Shurtleff v. Rile, 140 213. 27. In the absence of an express contract, a. guardian is not liable for the support of his ward; and if he has made himself liable there- for, without any specification of time, he may terminate his liability at any time by notice, although the ward is sick and unable to he removed. Spring v. Woodworth, (4 A.) 86 326. 28. A guardian who signs an indenture of apprenticeship, without covenants on his part, is not liable for a breach of the ward's cove- nants. Blunt «. Melcher, 2 228. 29. A guardian maybe personally assessed for taxes on his ward's estate in his possession. Payson v. Tufts, 13 493. 30. Where an executor delivered notes, which came from the decedent, to a guardan, who receipted for them in f uli of a legacy to his ward, and collected the money, the legacy having in fact lapsed, it was held that the guar- dian was not a trustee for the executor; that an administrator de bonis non, appointed upon the executor's removal, might recover the money from the guardian, with interest from a demand thereof; and that the guardian could not retain. GUARDIAN, II, (1), (2). 631 byway of set off a sum due to his ward for a residuary legacy, or expenses on account of his ward before a demand. ' Stevens e. Goodell, (3 Met.) 44 34. 31 The father of an infant, as his natural guardian merely, has no power to lease his lands or to receive a legacy to him. Mays. Calder, 2 55; Miles®. Boydeh, (SP) 20 213. I As to the father's right to the custody of his infant child, see Parent and Child, I, (1).\ 32. A guardian may assign dower, by parol, out of his ward's *ands. Jones v. Brewer, (1 P.) 18 314. 33. But he may not bind his ward by a sub- mission to arbitration, as to what sum the ward should pay in lieu of dower. Barnaby v. Barnaby, (1 P.) 18 221. 34. The guardian of an adult may avoid any conveyance, executed by the ward, while an infant, which the ward might have avoided on coining of age, if he had been capable. Chandler v. Simmons, 97 508. 35. Under obsolete statutes it has been held: Under St 1783, Oh. 38, § <7, that a spend- thrift's, guardian has no authority over his per- son Boyden «. Boyden, 5 427. Before St. 1817. Uh. 190, that the guardian of a lunatic might sell personal property with- out a license. Ellis v, Essex M. Bridge, (2 P ) 19 243. 36. Service of a writ of entry against a spendthrift, upon him and his guardian, and a general appearance will support a judgment for the demandant Whitcomb «. Jacobs, (9 G.) 75 255. 37. A guardian cannot sue in his own name for his ward's land. Jennings «. Collins, 99 29. ;See Infant, 1V.1 38. A libel for a divorce by a spendthrift, under guardianship, must be subscribed by the ward. Winslow® Winslow, 7 96. 39. The guardian may appoint an appraiser and receive seisin, where an execution in favor of a spendthrift is extended upon land. Bond v. Bond, (2 P.) 19 382. 40. A. promise within six years, by a spend- thrift s guardian, will take a debt out of the statute of limitations, so as to bind the ward. Manson e. Felton. (13 P.) 30 206. 41- Two persons, formerly guardians of a spendthrift, may join in an action relating to their guardianship, although their guardian- ship has terminated. Shearman v. Akins, (4 P.) 21 283. 42. A spendthrift's guardian, upon notice to me overseers of the poor, may recover for his J* Ms support, after the hitter's property is ex- Kske e. Lincoln, (19 P.) 36 473. wfc 3 ' A 1 £ uardian - of infants, appointed here, Sfwi. lttfi "its have been under her care, wim tie consent of their foreign guardian, may recover against the latter for the expenses of their maintenance and education. Spring v. Wordworth, (2 A.) 84 206. 44. The guardian of an insane person may maintain a bill in equity, to compel a reconvey- ance of land, conveyed absolutely in form, but in realty as an indemnity, where the condition of the indemnity has been fulfilled, and the land is necessary for the ward's support. Warfield v. Fisk, 136 219. (2.) General rights, liabilities, and dis- abilities of the ward. [See, also, ante, art. 25. 1 45. A ward is not liable, even after his guard- ian's death, for repairs put upon his dwelling house by his guardian's order. Wallis v. Bardwell, 126 366. 46 A spendthrift under guardianship, can- not, by acknowledgment or new promise, take a debt against himself out of the statute of limitations; but his guardian may. Manson «. Felton, (13 P.) 30 206. 47. Nor can such a spendthrift make any contract, which shall bind him or his estate, ex- cept for necessaries, although no copy of the complaint for the appointment of a guardian has been filed. Lynch ®. Dodge, 130 458 See, also, Smith ii. Spooner, (3 P ) .20 229. 48. Nor can he, after a complaint has been filed, and while an appeal from the guardian's appointment is pending, ratify, as an adult, a voidable conveyance made by him when an in- fant. Chandler v. Simmons, 97 508. 49. As to whether a guardian can ratify such a contract, see Oliver v. Houdlet, 13 237, and ante, art. 34. 50. Whether articles of household furniture are necessaries, within the statute, is for the ■jury. Leonard v. Stott, 108 46. 51. A claim against the ward may be enforced by trustee process; and if a spendthrift's real property is orally leased by the guardian, the rent due may be attached. Hicks v. Chapman, (10 A.) 92 463; Simmons ». Almy, lOO 239. 52. Although a ward cannot maintain an ac- tion against his guardian for an assault, he may do so. after the guardianship is terminated; and he may at any time institute criminal proceed- ings against his guardian. Mason v Mason, (19 P.) 36 506 53. One, under guardianship, may file a com- plaint to the probate court, against a person sus- pected of having embezzled his property. Sherman v. Brewer, (11 G.) 77 210. 54. Where an infant over fourteen years old, who had been bound an apprentice by his guardian, unjustifiably left his master, and, after the appointment of a new guardian, the former guardian paid the master for necessary expenses, the ward is not liable for the money. Hapgood v. Wesson, (7 P.) 24 47. 632 GUAEDIAN, II, (2); III, (1). (2) 55. A person, although under guardianship as non compos, is competent to make a will, if, in fact, he has been restored to reason. Stone ». Damon, 12 488; Breed v. Pratt, (18 P.) 35 115; Orowninshield v. Crowninshield, (2 G.) 68 524. 56. And where such a will appoints the guardian executor, and gives him a legacy, he is not estopped by the letters from contending that the testator was competent; but the burden is upon him to show that fact. Breed v. Pratt, (18 P.) 35 115; Crowninshield v. Crowninshield, (2 G.) 68 524. 57. Where a guardian, under a license from the probate court, and intending to convey her two wards' interest in land, being an undivided fifth to each, in which she also had an estate of dower, by mistake conveyed "two undivided fifths of two undivided thirds," and through the agency of A, became 'the purchaser, and made improvements; and, after the wards at- tained majority, conveyed to A, who made ad- ditional improvements; and did not invest or account for the proceeds of the sale; the wards having no special knowledge of the facts; it was held that a bill in equity, by A's assignees in in- solvency, to prevent the wards from setting up title to the land, could not be maintained. Dickinson v. Durfee, 139 232. III. Management and Disposition op the "Estate. (1.) Personal property. IFor rules applicabla to trustees generally, see Trustee, il.l 58. The guardian of an insane person may be authorized by the court, to invest the entire property of his ward in the purchase of an annuity for him. Ex parte Hooper, 120 102. 59. An improper investment by a guardian, is not such a conversion, as will authorize the guardian's creditors to take the investment. Bancroft ». Consen, (13 A.) 95 50. 60. "Where a guardian improperly invests the ward's property in negotiable notes, payable to himself individually, the ward may recover the full value of the notes from the guardian's estate, after the tetter's death, although it is insolvent. Brown ®. Dunham, (11 G.) 77 42. 61. "Where a guardian improperly assigns to his private creditor, shares of stock, issued to him in his official capacity, his successor may maintain a bill in equity to obtain a transfer to himself, if they were taken with notice. Atkinson «. Atkinson, (8 A.) 90 15. 62. But if he assigns other shares belonging to his ward, but issued to him individually, to one who takes them for value, without notice, his successor cannot maintain such a bill. Atkinson v. Atkinson, (8 A.) 90 15. 63. "Where a guardian, in good faith, invested his ward's money in the note of a person in good credit, with shares of stock as collateral security, at less than its market value, it was held that he was not responsible for a loss, occasioned by the failure of the maker, and the depreciation of the shares. Lovell v. Minot, (20 P.) 37 116. 64. And where he sold the stock, taking the purchaser's note with two indorsers for the price, and another person's note secured by a mortgage on land, it was held that he was not responsible for a loss, occasioned by a failure of all the parties, and a depreciation in the value of the mortgaged land. Lovell ». Minot, (20 P.) 37 116. 65. A spendthrift's assent to an improper investment does not relieve his guardian from liability therefor. Harding v. Lamed, (4 A.) 86 426. 66. A guardian is responsible, if he invests his ward's money in the note of a third person, or a partnership, without security. Harding v. Larned, (4 A.) 86 426; Clark v. Garfield, (8 A.) 90 427; Rich- ardson v. Boynton, (12 A.) 94 138. 67. Or in the note of two persons, each of whom is reputed to be worth only about the amount of the note. Harding v. Larned, (4 A.) 86 426. 68. Or in the note of four persons, only one of whom is reputed to have property. Harding v. Larned, (4 A.) 86 426. 69. As to the general duties of a guardian, with reference to his ward's property, see Pierce v. Prescott, 128 140. (2.) Real property. [As to the power of the legislature to authorize thesaleof real property by a guardian, see Consti- tutional Law, III, (3).l 70. The sale of an infant's land by his guar- dian, without giving the statutory bond and taking the statutory oath, is void. "Williams *. Reed, (5 P.) 22 480. 71. The guardian of a spendthrift may, under a license, sell the ward's homestead for pay- ment of debts, and his maintenance; although the ward is a householder, with wife and chil- dren. Wilbur v. Hickey, (8 G.) 74 432. 72. A sale of an infant's real estate by his guardian, is void, if a deed is not executed un- til after a year from the date of the license, and no money therefor has been paid to the guardian, or accounted for by him. Richmond v. Gray, (3 A.) 85 25. 73. The guardian's deed need not set forth the reason for granting the license. Sowle v. Sowle, (10 P.) 27 376. 74. As to the sufficiency of the description of the land, see Wyman ». Hooper, (2 G.) 68 141 75. As to the sufficiency of the notice of sale, see Brigham v. Boston & A. Railroad, 103 14. 76. A guardian, who acts as auctioneer in selling land under a license, canuot sign for the GUAEDIAN, IH, (2); IV, (1). 633 purchaser a memorandum, to take the sale out of the statute of frauds. Bent v. Cobb, (9 G.) 75 397. 77. A guardian is responsible for all losses, arising from bis disregarding the terms of his lieense, either as to the mode of selling, or the investment of the proceeds; and if his ward is a spendthrift, the latter's assent does not relieve him. Harding s. Lamed, (4 A.) 86 426. 78. Where a license was granted to a guardian to sell "the whole of the real estate" of the ward, and the deed conveyed the land, etc., "reserving the house occupied by the widow," also "the shed, with the land under it, on the easterly end of the barn;" and the shed was not on the land set off to the widow as dower, but was occupied by her, it was held, that the ward's undivided interest, in the reversion of the dower estate, did not pass by the deed. Kimball v. Withington, 14=1 376. 79. Where a guardian, selling the equity of redemption, under directions to invest the pro- ceeds in a mortgage upon real property, takes security therefor upon the same equity of re- demption, and, the purchase money not being paid, takes it back, and afterwards the mort- gage is foreclosed; he cannot be allowed in his account, for that portion of the purchase money which he has failed to collect, or for repairs made by him on the property. Harding «. Lamed, (4 A.) 86 436. 80. Where the license directs the investment of the proceeds, the guardian has no right to expend them for the support of the ward, unless a necessity therefor has arisen, since the license was granted, and is clearly established. Strong v. Moe, (8 A.) 90 125. 81. A person appointed to make the sale is hound to answer under oath, in the probate court, interrogatories relating to his proceed- ings. Pope v. Jackson, (11 P.) 28 113. 82. The following rulings were made under obsolete statutes, relating to the sale of real property by a guardian: That there is no authority to license the sale of a spendthrift's land. In re Tucker, 2 157. That no guardian, except of an infant, can sell, without the previous written consent of the overseers of the poor. See now, St. 1874, Ch. 202; P. S„ Ch. 140, § 14. Lyman «. Conkey, (1 Met.) 42 317. Where a female infant marries, her former guardian may have a license to sell. Ex parte Dagget, (3 P.) 20 280. Under St. 1791, Ch. 60, the guardian of a lunatic may, under a licsnse, sell in fee simple the estate tail of the ward, thereby barring the remainders. Williams v. Hichborn, 4 189. . Under St. 1783, Ch. 32, the certificate of the judge of probate was not required, upon an application to the supreme judicial court, to sell part of the real property for payment of debts. & parte Williams, 3 397. In such a case, the court will direct notice to oe given to the ward's presumptive heirs, ft parte Luf kin, 3 398. . Vol. 1—80 Under the same statute, the oommon pleas had authority to license the sale of a lunatic's real property. Smith v. Smith, 9 374 _ 83. Where a guardian purchases, directly or indirectly, for his own benefit, land sold by him under a license, the sale is voidable by the ward only, or by his representative, as against the guardian, or a purchaser or mortgagee from him, who does not take without knowledge, for value, and in good faith. Wyman v. Hooper, (2 G.) 68 141. 84. It makes no difference that the purchase was made by the guardian's attorney, without notice of his intention so to do, if he subse- quently accepted a conveyance from the at- torney. Walker v. Walker, 101 169. 85._ Where the guardian, having purchased for his own benefit, sold the land at an advance, he was charged with the advanced price; and, this being an affirmance of the sale, he was allowed for his services and expenses on the sale. Hayward v. Ellis, (13 P.) 30 272. [For rulings upon such sales by other trustees, see Executor and Administrator, IV, (3): Trustee and Cestui Que Trust, II, (4).] 86. A guardian's license to a third person, to enter upon the ward's land and do certain acts, is determined by the guardian's death. Johnson v. Carter, 16 443. 87. Where a mortgagee, who has entered for condition broken, is put under guardianship as a spendthrift, his guardian may restore posses- sion to the mortgagor, to hold upon the same condition as before the breach. Botham v. Mclntier, (19 P.) 36 346. 88. A guardian is liable to his ward for the rent of real property, which he received, or might have received, with due diligence. Shurtleff c. Rile, 140 213. 89. He is liable also for the loss of real prop- erty by sale for nonpayment of a tax, where he had the means to pay it, derived from the rents; but not if the ward attained majority before the Shurtleff v. Bile, 140 213. IV. Accounting; Compensation. [See, also, Executor and Administrator, VIII; Probate Court; Trustee and Cestui Que Trust, 11,(5); II„(6).l (1.) Mode of accounting; effect of de- cree; re-opening. 90. Even after a guardianship has come to an end, no action at law will lie between the guardian, or the guardian's successor, and the ward, for any matter arising in the cause of the guardianship, until an account has been taken in the probate court, and it has been set- tled that a certain sum is due from or to the guardian. McLane v. Curran, 133 531. 634 GUAEDIAN, W, (1), (2). 91. Where a guardian, who had been re- moved, neglected to settle his account, the administrator of one of his sureties may settle it. Curtis «. Bailey, (1 P.) 18 198. 92. The allowance of a guardian's account by the judge of probate, in which the guardian charged himself with the appraised value of certain shares of stock, and the recovery of judgment upon his bond for the balance in his hands, do not bar a suit in equity, by the guar- dian's successor, to obtain a transfer of the shares, if, in fact, the value thereof was not in- cluded in the judgment, although it was included in the bill of particulars. Atkinson «. Atkinson, (8 A.) 90 15. 93. Where the guardian of an infant, upon his ward's attaining majority, settles his account with him, and takes his receipt in full for the balance, the ward may still cause him to be summoned into the probate court, for a settle- ment of his account; and there the guardian must answer all proper interrogatories, and the ward may introduce evidence to impeach the receipt. Wade v. Lobdell, (4 C.) 58 510. See, also, Boynton v. Dyer, (18 P.) 35 1. 94. But where the ward, seven months after attaining his majority, has certified that the guardian's account was correct, and has given him a release from all demands, he cannot open the settlement, because the guardian did not charge himself with interest. Boynton v. Dyer, (18 P.) 35 1. 95. Where the same person is guardian of a lunatic, and, after his death, the administrator of his estate, the widow and children, may contest the guardian's account in the probate court and appeal from the decree. CummingsD. Cummings, 123 270. 96. Where t'.ie settlement of a guardian's account in the supreme court was, in an action upon the bond, found to be fraudulent and void against the sureties, the remedy is by an appli- cation for a rehearing, not by a citation before the judge of probate to settle a new account. Baylies v. Davis, (1 P.) 18 206. 97. A decree of the probate court, allow- ing the final account of a guardian, will not be re-opened, where there is no evidence of fraud or mistake of fact, and the very matter sought to be contested anew was tried and de- termined, after hearing the same parties . upon the original accounting, and two years have elapsed. Cummings v. Cummings, 128 532. (2.) Items chargeable against and allow- able to tbe guardian. 98. A guardian, who properly advances his own money in payment of debts or expenses, is entitled to interest thereupon. Hayward «. Ellis, (13 P.) 30 272. 99. If the guardian neglects to put out the ward's money at interest, he is chargeable with interest, and if the delinquency is gross, with compound interest. Boynton v. Dyer, (18 P.) 35 1. 100. As to when rests should be made, and how they are made, for the purpose of charging a guardian with interest. Bobbins v. Hayward, (1 P.) 18 528 note; Boynton v. Dyer, (18 P.) 35 i' See, also, Miller v. Congdon, (14 G.) 80 114. 101. Upon a small note of the guardian him- self, only simple interest will be charged. Pay v. Howe, (1 P.) 18 527. 102. A guardian, who is also the father of his ward, may be allowed a reasonable sum for the ward's board. Dawes v. Howard, 4 97. 103. Where a stepfather, who was poor, occu" pied the ward's house for his family, and after" wards sold the same, under a license, he will not be charged with rent, or credited with payments for taxes, or the board and clothing of the ward; but he may be allowed a reasonable sum for the ward's expenses at boarding school. Mulhern v. McDavitt, (16 G.) 82 404. 104. The guardian of an insane man of wealth should be allowed for such reasonable luxuries, furnished to his ward, as would be proper for a sane man of the same property. May 0. May, 109 252. 105. The guardian of an insane person cannot be allowed for damages to his own property, by his ward's want of care. Brown v. Howe, (9 G.) 75 84. 106. Where the guardian, who was also exe- cutor of a will, in which his ward was residu- ary legatee, paid out for support more than he received as guardian, it was held that the excess should be credited to him in his executor's ac- count, as paid to himself as guardian, and if not so allowed, it might be deducted from his liability upon his bond as executor. Mattoon *. Cowing. (13 G.) 79 387. 107. Where a guardian, the mother of her ward, knowing all the facts upon which the ward's title depended, but in ignorance of a statute, under which an intestate's property would go to her ward, permitted a decree of distribution of that estate to be made, which gave that property to herself, and her children by another husband, and took no steps to pro- cure the revocation thereof; she was charged, not only with the sum paid to her, but with those paid to the other distributees. Pierce *. Prescott, 128 140. 108. Where a piano was purchased by the guardian for a female ward, with the ward's money, and was a suitable and proper thing for her to have, with reference to her situation and circumstances, and the guardian refused to let the ward take it away when she married; the expense of the piano was disallowed in the guardian's account. Pierce «. Prescott, 128 140. 109. Where the guardian of a lunatic con- tinued to carry on his ward's former manufac- turing business, at the express or implied re- quest of those interested in the estate, and for that purpose erected a building, required for storage, upon the land of the ward's wife, the expense of the building was disallowed, but he was permitted to charge a reasonable rent therefor. Murphy »; Walker, 131 341. GUAEDIAN, IV, (2); V. 635 Compensation. HO Whether a guardian should be allowed a seneral commission, in addition to his charge for special services, depends largely upon how he has managed the estate, and whether he has IteDt it invested by itself. P Pierce v. Prescott, 128 140. 111. Where he refuses to disclose what use lie has made of a large surplus of income, but charges himself with interest thereon, he will not he allowed commissions thereon. Blake v. Pegram, 109 541. 112. Where the guardian of an insane man, worth over $200,000, rendered valuable ser- vices, consuning much time, in personal atten- tions' to his ward, whereby the latter's health and spirits were much improved, he was al- lowed $100 per month for his personal services, besides a commission of five per centum on the income collected. But he was not allowed com- pensation for journeys, undertaken partly on his own business, nor for attending court. May v. May, 109 252. 113. The additional compensation, if any, allowed to a guardian for changing investments, or making repairs, should not be by way of commissions on the amount invested or ex- pended. May o. May, 109 252. 114. A guardian who makes monthly rests, may charge the estate with his commissions on the monthly collections, and with a month's interest on a preceding monthly balance in his favor. May v. May, 109 252. T. Guahdian's Bond; Breach thereof I See, also, ante, III.J 115. A guardian appointed here, who takes out ancillary letters in another state, is not re- quired to charge himself in his accounts here, with money collected there, until he has settled his account there; but if he credits it directly in his account here, without any accounting there, and his account is settled and a balance, including that sum, is found against him, his sureties in his bond are liable therefor. Brooks v. Tobin, 135 69. 116. A guardian's bond is a continuing se- curity; and failure to sue thereupon for breaches in not returning an inventory, or rendering an account, within the statutory time, does not dis- charge the sureties from a subsequent breach, in not paying over the estate to his successor, after his removal. McKim v. Williams, 134 136. See, also, Austin v. Moore, (7 Met.) 48 116; Prescott «. Read, (8 C.) 62 365. HI 1 . That he was not called to account, and was not removed, at an earlier day, is not such laches on the part of the plaintiff, the judge of Probate, as discharges the sureties. McKim v. Williams, 134 136. ^ol 1 ?'' If a guardian having assets refuses to ffJi, ? vard ' s debts ' the remedy is by action on the bond, not by bill in equity. Conant e. Kendall, (21 P.) 38 36. Nor by assumpsit against the guardian. Cole «. Eaton. (8 C.) 62 587. 119. A guardian's bond is forfeited by his neglect to settle his account when cited; and ex- ecution may issue on a judgment thereupon, for the benefit of all interested. Dawes v. Bell, 4 106. 120. An action thereupon can be maintained only by the judge of probate. Grout v. Harrington (19 P.) 36 403. 121. As to separate executions for different sums, see Dawes v. Bell, 4 106. 122. An action cannot be maintained upon a guardian's bond, which was signed by him and the sureties, and kept by him, and delivered to the judge of probate after his death, by the ad- ministrator, although he had acted as guardian for two years. Fay v. Richardson, (7 P.) 24 91. 123. If a guardian improperly invests his. ward's money in a note, the sureties on his bond are liable, although he has died, and the bor- rower has become his administrator, and returns, the note as assets of the ward's estate. Richardson*. Boynton, (12 A) 94 138. 124. The guardian's bond is holden for money due from him to his ward, when he was ap- pointed, and rent of real property previously occupied by him. Mattoon v. Cowing, (13 G.) 79 387. 125. The sureties are not discharged by the fact that the account is not settled, till after a right of action against the guardian's adminis- trator is barred by the statute of limitations. Chapin v. Livermore, (13 G.) 79 561. 126. Where the judge of probate orders a guardian to file a new bond, in a larger penal sum, by reason of a legacy to the ward, and he files the same with a new surety, both bonds are valid, and the two sureties become co-sure- ties, liable to contribution, between themselves, in proportion to the different penalties. Loring v. Bacon, (3 C.) 57 465. 127. A guardian is entitled, in equity, to have securities given by a former guardian to his sureties, for their indemnification, sold, and the proceeds applied to the payment of the former guardian's debt, he and his sureties having be- come insolvent;, and they are not entitled, as against him, to deduct a payment made by them on account, although they are entitled to deduct it out of the balance, after he is paid. Kelly v. Herrick, 131 373. 128. A surety upon a special bond, given upon a license to sell property, for maintenance, is liable for the guardian's failure to invest so much of the proceeds, as are not needed for maintenance. McKim v. Morse, 130 439. 129. So, also, where the sale is for other pur- poses, and the guardian neglects to invest the proceeds, or otherwise to apply them, as di- rected by the license. Mattoon v. Cowing, (13 G.) 79 387. 130. R. S., Ch. 79, § 26; G. S., Ch. 109, § 29; P. S., Ch. 139, § 28, fixes a limitation upon a special bond on a license to sell real property, as well as the general guardianship bond; and the word "discharge" means any mode, by €36 GUARDIAN: V— HABEAS CORPUS. which the guardianship is determined and closed. Loring a. Alline, (9 Cw 63 68. 131. The four years' limitation fixed by that provision, begins to run from the ward's death, although an administrator is not appointed until the four years have expired. McKim v. Mann, 141 507. 132. For rulings upon bonds given by guard- ians, under obsolete statutes, to obtain licenses to sell real property, see> Wood v. Hayward, (13 P.) 30 269, modifying White v. Quarles, 14 451'. Lyman ®. Conkey, (1 Met.) 42 31?; Fay v. Taylor, (11 Met.) 52 529; Brooks a. Brooks, (11 C.) 65 18. Gunpowder. 1. For ruiings under St. 1833, Ch 151, as to forfeiture of gunpowder unlawfully kept, see Barnacoat «. Gunpowder, (1 Met.) 42 22S. H. Habeas corpus; personal repleyin. I See, also, Bail, I; Constitutional Law, II, (6) ; Parent and Child, I, (1); United States Forces, I. As to an amendment to the return, see Amend- ment, II.l 1. As to the construction of the habeas corpus act, St. 1784, Ch. 72, see Randalls. Bridge, 2 549< In re Riley, (2 P.) 19 172; Comm. 0. Brickett, (8 P.) 25 138; Comm. 11. Whitney, (10 P) 27 434; Comm. ■». Carter, (11 P.) 28 277. 2. The supreme court may, on habeas corpus, inquire into the sufficiency and regularity of a warrant to arrest a citizen of this State, under a resolution of the United States senate. Sanborn v. Carleton, (15 G.) 81 399. I As to the power of the supreme court to Inquire, upon habeas corpus, into the lawfulness of imprison- ment by order of the house of representatives of the Commonwealth, see Constitutional Law. art. 110.1 3. Habeas corpus is the proper remedy, where a privileged person is arrested. Wood v. Neale, (5 G.) 71 538; May ■v. Shumway, (16 G.) 82 86; In re Thompson, 122 428. 4. Or where a person is unlawfully arrested for any cause, upon original process or execu- tion. Comm. v. Sumner, (5 P.) 22 360; Comm. v. Moore, (19 P.) 36 339; Stone v. Carter, (13 G.) 79 575; In re Blake, 106 501; In re Mowry, 112 394. 5. If excessive bail is required, the court will, upon habeas corpus, discharge the defend- ant upon reasonable bail. Jones v. Kelly, 17 116. 6. But habeas corpus will not lie, in behalf of a person committed for want of bail, where the inferior court has power to bail. Belgard v. Morse, (2 G.) 68 406. 7. Semble, that a prisoner sentenced for felony may be brought up on habeas corpus, and sur rendered in discharge of his bail in a civil action. Bigelow v. Johnson, 16 218. 8. A sheriff who sells intoxicating liquors upon execution, and is sentenced therefor as for an unlawful sale, and, on his refusal to pay a fine, or give bond under St. 1852, Ch. 322, § 7, is sentenced and committed, by a justice of the peace, is duly committed and will not be dis- charged on habeas corpus. Adams v. Vose, (1 G.) 67 51. 9. But a warrant to the coroner to commit the sheriff to the county jail is void, and the sheriff held upon such a warrant will be dis- charged on habeas corpus. Adams v. Vose, (1 G.) 67 51. 10. Under G. S., Ch. 171, § 30; P. S., Ch. 213, § 38, the right of a prisoner to be tried at the next term, after six months from his impris- onment, does not entitle him to be discharged upon habeas corpus, if the jury disagree; in that case an application for a new trial is addressed to the discretion of the court. In re Glover, 109 340. 11. Where a writ of error to the United States supreme court, has been issued, upon a judgment and sentence for crime, pronounced by a court of this Commonwealth, the prisoner is not entitled to a discharge upon habeas corpus, if it appears satisfactorily that the writ of error has been improvidently granted, and the judg- ment or sentence is not lawfully reviewable by the United States supreme court. Fleming « Clark, (12 A.) 94 191; Nauer v Thomas, (13 A.) 95 572. 12. Where proceedings are irregular or erro- neous, if the court or magistrate has jurisdic- tion, the judgment is voidable only, and stands good until reversed; but where it appears, upon the face of the proceedings, that the court or magistrate had no jurisdiction, the proceedings are void, and a person held thereunder will he discharged on habeas corpus. Herrick ». Smith, (1 G.) 67 49. See, also, In re Clarke, (12 C.) 66 320. 13. The rule extends to a sentence, which the court, having jurisdiction of the offence, had no jurisdiction to pronounce; and a prisoner thus sentenced will be discharged. In re Feeley, (12 C.) 66 598. 1 14. A warrant of commitment by a court of j general jurisdiction, although erroneous and , i:ot conformable to law, stands good until re- i versed; but such a warrant, issued in excess of 1 its authority, by a court of inferior and limited 1 jurisdiction, is void; and the prisoner held thereunder will be discharged. Jones v. Robbins, (8 G.) 74 329. 15. One who fails to attend as a witness in a criminal cause, before a justice of the peace, will be discharged on habeas corpns from a war- HABEAS COEPUS— HAWKEE AND PEDDLER. 637 part for contempt, issued after the cause was ^If; Clarke, (12 C.) 66 320. 16 The decision of a single judge of the MMeme judicial court, discharging a prisoner on "habeas corpus, to not open to exception. Wyeth v. Eichardson, (10 G.) 76 240. 17 The judicial discharge of a person upon Ideas corpus, conclusively determines, that uDon the facts then existing, he was not law- fully held in custody, notwithstanding the fail- ure to make in the return the statement required toft S., Ch. 141, § 12; P. S , Ch. 185, § 12. h re McConologue, 107 154. 18. A prisoner in custody, under an insuffi- cient warrant, will not be discharged, where, after the habeas corpus is issued, the sheriff re- ceives an amended and sufficient warrant. Kelley v. Thomas, (15 G.) 81 192. 19. So where a judgment debtor was com- mitted upon a valid execution, but an incorrect copy was left with the jailor, and afterwards a correct copy was left with him. Comm. v. Waite, (2 P.) 19 445. 20. A habeas corpus, issued by any other mag- istrate than a justice of the supreme court, ought to show, upon the face of it, or the petition ought to show, the facts giving the magistrate authority; but this is not essential. Comm. v. Moore, (19 P.) 36 339. 21. A justice of the supreme judicial court has the same jurisdiction upon habeas corpus, when the court is not in session, as the whole court has, when in session. In re Sanborn, 22 Law Rep., 730; 23 Law Rep., 7. 22. Qu., as to the power of a court, to take a prisoner from the custody of the executive offi- cer of another court, by habeas corpus to the .fa re Sims, (7C.) 61 285. 23. Habeas corpus will not be issued, where the petition shows that the petitioner, if brought before the court, would not be discharged. im re Sims, (7 C.) 61 285. 24. A warrant for the collection of a tax, properly issued to a collector by a board of as- sessors, is a lawful warrant, issued by a court of competent jurisdiction; and a person, arrested by virtue thereof, is not entitled to the writ of personal replevin, and to be thereby delivered under St. 1837, Ch. 221, § 1; G. S. Ch. 144, §42;P.S.Ch.l85,§40. Aldrich*. Aldrich, (8 Met.) 49 102. 25. Under St. 1786, Ch. 58, the father of an illegitimate infant, whose parents were married after his birth, and were subsequently divorced, could not maintain a writ de homine asplegiando against the mother, in the child's name. Wright t>. "Wright, 2 109. 26. For other rulings under the St. of 1786, suspended by the existing statute, relating to personal replevin. Williams v. Blunt, 2 207; Wood v. Ross, 11 271. ■Habituai drunkenness [See Drunkenness.] Hackney carriage. See Lien i, Town and City, 11, (5).| Hadley Falls company. 1. As to the right of this company, under St. 1848, Ch. 222, to appeal from an assessment of damages by county commissioners, and costs upon such an appeal, see v Marshall Fishing Co v. Hadley Falls Co., (5C.) 59 602. Hamilton and Ipswich boundary. (See Ex parte Ipswich (13 P.) 30 431.1 Hancock free bridge. [See Corporation, X.] Handwriting. [See Evidence, IX, (2): lNinAifi.1 Harbor commissioners. I See Flats. I Harvard college. | See CoLiiEoe.1 Hawker and peddler. |G S.Ch.60; B. S.Ch.68.1 1. The hawker's and peddler's act is not a violation of any provision of the United States, constitution. n „ Comm. v. Ober, (12 C.) 66 493. 2. A hawker and peddler is an itinerant trader, who carries goods about to sell them, in contradistinction to a trader who has a fixed place of business. Superadded to this, a hawker is one who seeks for purchasers by out- cry, exhibition, placards, labels, etc. Per Shaw, Ch. J., in Comm. e. Ober, (12 C.) 66 493. 3. It is a violation of the statute, for one to sell the goods prohibited therein from house to house, at the request of purchasers, although he was travelling in the exercise of a lawful employment, and without any previous inten- tion of selling them. Comm v. Ober, (12 C.) 66 493. 4 It is not a violation of the statute, for an agent to go about the country, delivering to 638 HAWKEE AND PEDDLEE— HEIES, ETC., I. traders goods, made by his principals, and pre- viously ordered from the latter by the former; nor even to deliver, at the same time, a larger quantity of the same goods, than was previously ordered. Comm. v. Ober, (12 C.) 66 493. . 5. Nor is it a violation of the statute, for an agent of a sewing machine company to go about, selling such machines by sample, and after- wards delivering them, when received from the company, upon conditional contracts of sale; although he> occasionally thus delivers his sample machine, and once only sold the latter absolutely. Comm. ». Farnum, 114 267. 6. Plain gold ear rings and knobs are " jewellery," within the statute. Comm. v. Stephens, (14 P.) 31 370. 7. An action will not lie for goods delivered to A, to be peddled in violation of law, and pledged for A's own debt; or for services ren- dered in thus peddling. Duffy . Carter, (8 P.) 25 175. Jf'.i' 4 ? hdr ma y rel ease to his father his ex- pected share m the latter's estate, in which case » other heirs of the father will take the whole, "he dies intestate. Quarles v. Quarles, 4 680; Kenney v. Tucker, 8 143. 19. A covenant by an heir expectant to con- vey to a stranger whatever may come to him from his ancestor, is void, if made without the ancestor's knowledge; but such a covenant to another heir, with the ancestor's consent, is valid. Boynton v. Hubbard, 7 112; Fitch v. Fitch, (8 P.) 25 480. 20. So a deed of release of an estate in ex- pectancy by one heir to another is valid, and a covenant never to claim any right in the same runs with the land. Trull «. Eastman, (3 Met.) 44 121, overruling, in part, Davis «. Hayden, 9 514. 21. For a case where it was held, that the sureties of an administrator might maintain a bill in equity, to be subrogated to the rights of the distributees, to the extent that the latter had received advances by ihe administrator's acts see Stetson «. Moulton, 140 597. II. Liability of Heirs, Devisees, Legatees, and next op kln, fob, the decedent's Debts and Contracts. [See, also.'LiMiTATiosr, m, (2) ; III, (5).] 22. Heirs are jointly chargeable as assigns, upon a covenant of their ancestor, which runs with land descended to them; and if it binds the ancestor to do an act upon request, a re- quest to the heirs suffices. Morse v. Aldrich, (1 Met.) 42 544. 23. But the heir of one who dies here, hav- ing conveyed lands in this Commonwealth with a covenant of warranty, is not liable thereupon, by reason of land, in another state, descending to him. Austin v. Gage, 9 395. 24. Where" A, by a written contract, agreed to release to a city, without claim f( r compen- sation, land for a street, ana died intestate, leaving several hei s, and B, one of them, pur- chased his co-heirs interests, and the city took the land, it was held that A's contract was a defence to an action by B for taking the land, if the amount claimed was not gi eater than the share of A's estate inherited by B, although B had no notice of the contract. Bell v. Boston, 101 506. 25. Where A conveyed land to B with war- ranty, and died intestate, leaving a daughter, sole heir to assets of greater value than the land, and she marries, her husband is estopped from recovering the land from B, under title paramount to that of A, to avoid circuity of actions. Bates v. Norcross, (17 P.) 34 14. 26. In an action against an heir, _ under the statute, to recover for the debt of his ancestor, the declaration must contain all the averments necessary to show the liability of the defendant, as prescribed by the terms of the statute. Hall v. Bumstead, (20 P.) 37 2. 27. A bill in equity, or an action at law, will net lie against the heirs of a decedent under 640 HEIKS, ETC., II— HIGHWAY. G. S., Ch. 101, §§ 31 to 34; P. S., Ch. 136, §§ 26 to 29, in the absence of proof or an allega- tion, that the estate has been settled. Grow v. Dobbins, 128 271. See, also, Euss ■». Alpaugh, 118 369; Grow D.Dobbins, 124 560; Brooks v. Rayner, 127 268. And the settlement must have been by an executor or administrator appointed in this Commonwealth. Julian v. Boston, Clinton, etc., R. R., 128 555. 28. But the objection must be taken by de- murrer: it is too late at the trial. Eddy v. Chace, 140 471. 29. A promissory note, which matures more than two years after giving his bond, by the executor of the deceased'maker, is a debt, upon which the holder, if he does not present his claim to the probate court, cannot maintain his action against the legatees under that statute Pratt v. Lamson, 128 528. 30. A bill may be maintained against a de- visee primarily liable, and one who is only liable in case the debt cannot be collected from the former, although there is no allegation that it cannot be collected from him. Kramer ». Carter, 136 504. 31. A joint maker of a note, who pays the entire debt, after the death of his co-maker, and after the settlement of his estate, and after ' the statute has run against the administrator's liability, may recover his portion from the heirs of the deceased maker, if the action is com- menced within one year after the payment. Hayward v. Hapgood, (4 G.) 1 437. 32. Where one of two sureties, who has paid the principal's debt, files a bill against the heirs of his co-surety, and causes all to be summoned who are within reach of process, he is entitled by R. S., Ch. 70, to a decree against them sev- erally, for such sums as amount, in the aggre- gate, to a moiety of what he has paid, although some of the heirs are not summoned. Wood v. Leland, (22 P.) 39 503; Wood ». Leland, (1 Met.) 42 387. 33. And if one of the heirs dies, pending the action, his administrator is to be summoned in, and the same decree rendered against him, which would have been rendered against his ITlfp^tflfp Wood v. Leland, (1 Met.) 42 387 34. The court will not sustain a bill, against devisees and legatees of a surety in an admin- istration bond, if the claim is stale, and the claimant has been guilty of great negligence, laches, and delay, although the claim is not strictly barred by the statute. Phillips v. Rogers, (12 Met.) 53 405. 35. A bill against the widow and children is not bad, upon demurrer, for failure to show that more than one person is liable for the debt; or for not showing that either of the defendants is so liable; or for not stating the amount of personal property bequeathed, and its relation to the real property. Fairfield v. Fairfield, (15 G.) 81 596. 36. The fact that the creditor was an infant, during the whole or part of the time while the estate was under administration, will not take the case out of the limitation of four years under the R. S. Hall v. Bumstead, (20 P.) 37 2. 37. In an action against an heir, a mistake in the declaration as to a matter of form, in rela- tion to the statutory notice by the administra- tor, will be amended after verdict. Valentine i>. Farnsworth, (21 P.) 38 176. 38. In an action by a surviving partner against the heir of his deceased partner, upon a bond of indemnity against the firm debts, where it appears that judgment has been ren- dered against the plaintiff as surviving partner, in an action wherein the heir took upon himself the defence, the judgment is conclusive against the heir, in the absence of fraud or collusion. Valentine v. Farnsworth, (21 P.) 38 176. 39. Under St. 1788, Ch. 66, it was held, that the heir is not liable upon his ancestor's cove- nant, if no administration has been taken out, and the time for granting it has not expired. Royce v. Burrell, 12 395. 40. Also, that the husband of a female, one of the next of kin, was not liable, where his wife died before suit brought. Howes ». Bigelow, 13 384. 41. As to whether the action, under the stat- ute, should be several or joint, see Howes v. Bigelow, 13 384. 42. Where ancillary administration is taken out in another state, a judgment there, estab- lishing a claim against the estate, is not binding here; nor can the creditor maintain an action against the legatees, after the expiration of the time limited to present claims. Low v. Bartlett, (8 A.) 90 259. 43. For. a particular case, where it was held that devisees of a surety, in an executor's bond; were liable for his failure to pay an annuity given in a will, of which his testator was executor, see Brooks ». Rice, 131 408. High school. tSee School, I, (1).J Highway. I. General Rules. (1.) What is a highway. (2.) Limits and boundaries. (3.) Rights of the public and the land ownel in the soil. (4.) Law of the road. II. Highway by Dedication or PrescriF' tion. m. Statutory proceedings to lay out, ALTER, OR DISCONTINUE A WAY. (1.) Jurisdiction; correction of errors. (2.) Petition; notice; adjudication. (3.) Laying out the way. HIGHWAY, I, (1). 641' (4.) Altering or relocating. (5.) Acceptance. (6.) Discontinuing. (7.) Revision of the proceedings by a jury. jy. Damages; Expenses; Benefits; Better- ments. (1.) Award and assessment upon laying out, altering, or discontinuing. (2.) Application for a jury to revise the assessment; warrant thereupon. (3.) Summoning the jury; trial; verdict, and return thereof. (4) Computation of damages. (5.) Offset for benefits. (6.) Assessment for betterments. V. Construction; Repairs; Obstbuctions. (1.) Construction generally. (%.) Sidewalks. (3.) Repairs. (4.) Obstructions. VI. Action against a City ob Town von an Injury prom Defect. (1.) The place where the injury occurred. (2.) Nature and cause of the defect. (3.) Defendant's fault. (4.) Plaintiff's conduct. (5.) Proximate, remote, or contributing cause. (6.) Notice of the injury required by statute. (7.) Pleadings and proceedings in the action; Evidence; damages. (8.) Action where death has occurred. VII. Powers, Duties, and Liabilities op a Surveyor op Highways. IAs to a private right of way over another's prop- erty, see Easement. For rulings under statutes analogous to those relating to highways, and statutes which expressly adopt the highways statutes by reference, see Bridge; Railroad; Town and Cttt, VII; Turnpike ; Water Course. Generally, see, also, Certiorari ; Constitutional Law ; Estoppel ; License ; Office and Officer ; Street Railroad.] I. General Rules. (1.) What is a highway, LSeeB.S.,Cu.3, §3,cl.8/] 1. As to the distinction in England between highway an d a private way. See per Pabkeb, Ch. J., in Jones v. Andover, (6 P.) 23 59. 2. All the different ways, which towns are authorized by law to lay out, are in truth public jugnways, for the public, without discrimina- tion, has the right to use them. It is wholly immaterial by which name they are called. Denham v. Bristol Com'rs, 108 202. See, also, Jones v. Andover, (6 P.) 23 59; Parks e. Boston, (8 P.) 25 218; Hard- ing o. Medway, (10 Met.) 51 465; Mon- terey «. Berkshire Com'rs, (7 C.) 61 394; Wackstonefl. Worcester Com'rs, 108 68; .nune v. Brockton, 138 564; Butchers' Vol. 1—81 Slaughtering, etc., Ass'n 1>. Boston, 139 290. 3. Our system for the laying out and estab- lishment of public roads recognizes three differ- ent kinds: (1) highways, technically so called, laid out by county officers, and tie damages- for which are paid by the county; (2) town ways, laid out by town authorities, the damages for which are paid by the town; (3) private or par- ticular ways, in which the selectmen (or in case of appeal, the county commissioners,) may order the whole or part of the damages to be paid by the person or persons specially benefited. In all these different kinds of ways, the town pays all the expense of construction within its limits, and they are all public roads. Denham v. Bristol Com'rs, 108 202. SeeFlagg v. Flagg, (16 G.) 82 175; Davis v. Smith, 130 113. 4. The distinction between a town way and a county way refers rather to the manner in which they are originally established, than to their legal character, when establ.shed. They are both highways, and alike open to all citizens. The towns are equally bound to keep both in repair, and are equally liable, civilly and crimi- nally, for neglect so to do. There seems to be very little utility in the continuance of the dis- tinction. Per Mobton, J., in Valentine v. Boston, (22 P.) 39 75. See, also, per Shaw, Ch. J., in Comm. v. Boston, (16 P.) 33 442. 5. A town way may be described in an indict- ment as a highway. Comm. v. Hubbard, (24 P.) 41 98. 6. In the colony ordinance of 1641, the term "particular arid private ways " included town ways. Butchers' S. & M. Ass'n v. Boston, 139 290. 7. A statute, giving a remedy for a defect in the highway, applies to a town way. Jones v. Andover, (6 P.) 23 59. 8. And a statute against cattle running at large on the highway includes a turnpike road. • Gilmore ». Holt, (4 P.) 21 258; Comm. v. Wilkinson, (16 P.) 33 175. 9. The term " road," or " common road," not only in common parlance, but in many early statutes is used synonymously with highway. " Road " is a generic term, and embraces every species of public way. Stedman v. Southbridge, (17 P.) 34 162. 10. And the word "street," in a statute, means a public way, a highway, or a town way, as distinguished from a private way. Comm. v. Boston, etc., Railroad, 135 550. 11. The streets of a city have always been regarded as highways in the strictest sense of the term. See G. S., Ch. 43, § 81; P. S., Ch. 49, § 91. Stone «. Bean, (15 G.) 81 42. See, also, Fales v. Dearborn, (1 P.) 18 345. 12. Foot ways are public ways by the common law of England, and may be created by dedica- tion or prescription. This rule was brought here by our ancestors. Tyler v. Sturdy, 108 196. 642 HIGHWAY, I, (1), (2), (3). 13. A public foot way is within the statute, providing for the abatement, as a nuisance, of buildings, etc., encroaching. Tyler «. Sturdy, 108 196. 14. It is also within the statute as to laying Dut a way across a railroad. Boston & A. Eailroad v. Boston, 140 87. ISee, further, as to foot ways, post, II.] (2.) Limits and boundaries, [G. S., Ch. 46, § 1; P. S., Ch. 54, § 1. See, also, port, II; III, (8).l 15. A straight line through the centre of a Virginia fence, which has fronted the highway for 20 years, is deemed the true boundary, where the boundary cannot be ascertained. Holbrook v. McBride, (4 G.) 70 215. 16. But a fence is not deemed to be the boundary, if the original boundary can be fixed by monuments, although they are no longer in existence Wood v. Quincy, (11 C.) 65 487. 17. It is only where the boundaries are not known, and the more definite and direct means of proof, by records of the laying out, or monuments established, fail, that the statute authorizes the line of use, as shown by build- ings or fences by the side of the highway, to be assumed as the legal line. Home v. Haverhill, 110 527. See, also, Sprague v. Waite, (17 P.) 34 309; Plumer v. Brown, (8 Met.) 49 578; Wood v. Quincy, (11 C.) 65 487; Pet- tingillfl. Porter, (3 A.) 85 349; Hollen- beck v. Rowley, (8 A.) 90 473. 18. The fence or building is, in such a case, only prima facie proof of boundary; and it is for the jury to determine in each case, from all the circumstances, whether it is "fronting upon or against " the highway. Sprague v. Waite, (17 P.) 34 309. 19. If a town pound is placed between the travelled path, and a fence which has stood 40 years, and so continues for many years, it is an encroachment or nuisance, and does not narrow the highway. Sprague v. Waite, (17 P.) 34 309. 20. But maintaining a fence 40 years, gives the owner an absolute right to that boundary, although the fence is within the limits of the highway. Cutter v. Cambridge (6 A.) 88 20; Winslow v. Nayson, 1 13 411. 21. Evidence that an old wall had stood be- tween buildings and the middle of the highway, for from 75 to about 30 or 40 years previously, when it was demolished, does not show that it was the line, and that the land between its line and the buildings belongs to the abutter. Hobart «. Plymouth Co., 100 159. 22. Where a highway forks, and the two forks enter another highway; and a shop at the junction, and the fences on the forks, in con- tinuation of those on the sides of the highway, have stood more than 20 years, and there is no other evidence of the limits; the shop and the fences on the forks are deemed to fix the limits, and the space between the shop and the other highway is a part of the highway. Morton. ». Moore, (15 G.) 81 573. 23. Where a highway is proved only by user, the jury may find that it extends beyond the travelled path. Sprague v. Waite, (17 P.) 34 309; Hannumfl. Belchertown, (19 P.) 36 311. 24. And where the travelled path separates into two parts, leaving a stiip between, over which the travel has never passed, owing to ob- structions and a declivity, it is for the jury to say whether the strip has been dedicated to public use as part of the highway. Sprague v. Waite, (17 P.) 34 309. 25. Where a highway is established, it is lo- cated with exactness, and the easement of the public does not extend beyond the limits of the location; nor has the surveyor any authority to meddle with land outside those limits. Franklin ». Fisk, (13 A.) 95 211. 26. Where the grade is higher than that of the adjoining land, the slope of the embank- ment must be included in the limits, although the highway may be made wider there; and if the embankment extends beyond the limits thus included in the location, the land owner may maintain an action. Simonds v. Walker, 100 112; Mayo v. Springfield, 136 10. (3.) Rights of the public and the land owner In the soil, 27. The public have no rights in a highway, but to pass and repass thereupon, and the inci- dental right of properly fitting the surface for that purpose, by levelling, ploughing, paving, etc. Perley v. Chandler, 6 454; Stackpole v. Healy, 16 33; Bobbins v. Borman, (IP.) 18 122. 28. The owner of the soil has the exclusive property in the land, subject to the easements andT rights of the public. Perley v. Chandler, 6 454; Adams v. Emerson, (6 P.) 23 57. 29. The public cannot turn their cattle on the lughway for grazing, but the owner may, if he prevents them from going at large. Stackpole «. Healy, 16 33; Parker v. Jones, (1 A.) 83 270. 30. The owner may sink a water course or drain in the highway, taking care to cover it sufficiently to leave the way safe and con- venient for passing. Perley v. Chandler, 6 454. 31. The owner may maintain trespass against a person, who ploughs up the soil of a highway, unless for the purpose of repairing it. Robbins ». Borman, (1 P.) 18 122; Phillips «. Bowers, (7 G.) 73 21. 32. He may maintain trespass against a ser- vant of a turnpike road, for taking the herbage. Adams ». Emerson, (6 P.) 23 57. 33. But he cannot maintain an action for obstructing the way. HIGHWAY, I, (3), (4). 643 Mayhew «. Norton, (17 P.) 34 357; O'Srida*. Lothrop, (21 P.) 38 292. 84 A land owner may maintain an action asainst one who erects a bay window extending over his line, although the land covered by the •window is part of a highway. Codman «. Evans, (5 A.) 87 308 35. He may maintain an action against one -who cuts down a shade tree in the highway, unless by authority of the public officers. White*. Godfrey,, 97 472; Bliss v. Ball, 99 597. 36. The title of the owner of land, bounded on a highway, is presumed to extend to the centre; but this presumption is rebutted, if bis deed expressly bounds his land by the side of the highway. Smith v. Slocumb, (11 G.) 77 280; Bliss d. Ball, 99 597. [.See Boundary Line, II, (1).] 37. A record of "staking out" a highway in Boston, in 1683, furnishes no evidence that the town did or did not own the soil. Boston 9. Richardson, (13 A.) 95 146. 38. Upon the discontinuance of a highway, the land reverts to the owner. Perley v. Chandler, 6 454. 39. One entitled to use a highway may law- fully remove an obstruction thereupon; and for that purpose he may, /if necessary, enter upon the land of the person erecting or continuing the obstruction, doing no unnecessary damage. Arundel 9. McCulloch, 10 70. 40. Where a highway is rendered impassable, by a sudden and recent obstruction, a traveller may pass over the adjoining fields to avoid the obstruction, doing no unnecessary damage. Campbell 9. Race, (7 C.) 61 408. 41. Bumble, that city authorities have the right to allow a building to be moved through 45. So for a telegraph line. Pierce 9. Drew, 136 75. Day 9. Green, (4 C.) 58 433; Wood- ward v. Boston, 115 81. [As to the rights of the public and the land owner, Tnth respect to bridges and water courses, see Bridge, II, (l); Town ahd City, VI, (3); VI, (4); Watercourse.] 42. The incidental pcfwers of the public authorities, over land granted or taken for a highway, must be so construed, as most effect- ually to secure to the public the full enjoyment of its easement. Pierce 9. Drew, 136 75. See, also, Coram. 9. Temple, (14 G.) SO 69. 43. By authority of the legislature, a high- way may be used, without compensation to the owner, for gas or water pipes, although con- structed by companies; or for sewers, not merely to cleanse the street, but also to drain private property. Coram, v. Lowell G. L. Co, (12 A.) 94 75; Boston v. Richardson, (13 A.) 95 146; Atty.-Gen'l 9. Metropolitan R. R., 125 515; Pierce 9. Drew, 136 75. 44. So for a horse railroad. Comm. v. Temple, (14 G.) 80 69; Atty.-Gen'l 9. Metropolitan R. R., 125 515. 46. The selectmen of a town may construct a sewer under highway, without further notice or proceedings, although there is no intention to complete the way, except as its construction is incidental to building the sewer. Lawrence 9. Nahant, 136 477. See, also, Boston v. Richardson, (13 A.) 95 146. (4.) Law of the road. IG. B., Ch. 77; P. S., Ch. 93. See, also, Negligence, m, (2)4 47. The mere fact that when the plaintiff re- ceived an injury, he was in violation of the law of the road, will not prevent his recovery against another for a collision; or against the town, for a defect in the road. Smith 9. Conway, 121 216. See, Kidder v. Dunstable, (11 G.) 77 342; Smith 9. Gardner, (11 G.) 77 418; Spofford 11. Harlow, (3 A.) 85 176; Wrinn 9. Jones, 111 360; Damon 9. Scituate, 119 66; Tuttle v. Lawrence, 119 276. 48. Where the plaintiff was attempting to pass a vehicle, going in the same direction, by turning out to the right, it is erroneous to in- struct the jury, in an action against the town, that the burden is upon him to show that there was an emergency, which made it reasonably impracticable to pass on the left. Smith «. Conway, 121 216. 49. The term " road," as used in the statute, extends to all places appropriated de jure or de facto to the passage of vehicles, and if this is done by the owner's license, he must conform to the law. Comm. 9. Gammons, (23 P.) 40 201. 50. The " travelled part of the road " is the part usually wrought for travelling, not any track which may be made for the passing of vehicles. Clark 9. Comm., (4 P.) 21 125; Ja- quith 9. Richardson, (8 Met.) 49 213. 51. But where the travelled part of the road does not correspond with the wrought part, each traveller, meeting another, must turn to the right of the middle of the former. Comm. 11. Allen, (11 Met.) 52 403. 52. So where the wrought part is hidden by snow, and a track is beaten and travelled on the side. Jaquith 9. Richardson, (8 Met.) 49 213. 53. A master is not liable for damages to a third person, by reason of his servant's failure to turn out seasonably to the right. Goodhue 9. Dix, (2 G.) 68 181. 54. The law of the road applies to the streets of Boston. Fales 9. Dearborn, (1 P.) 18 345. 55. It does not apply, where vehicles meet each other at the junction of two streets; in 644 HIGHWAY, I, (4); II. such a case, the rule is that each must use rea- sonable care to avoid a collision. Lovejoy v. Dolan, (10 C.) 64 495; Garrigan v. Berry, (12 A.) 94 84. 56. One who drives a sleigh, without bells, is not liable for a collision, unless his neglect contributed in some degree to the accident. Kidder v. Dunstable, (11 G.) 77 342. 57. In case of a collision between sleighs, the plaintiff must prove ordinary care on Ms part, although the defendant was driving without belli. Counter 11. Couch, (8 A.) 90 436. 58. So an action will not lie for a collision of carnages, if the plaintiff was negligent, although the defendant was also negligent, and was on the wrong side of the road. Parker «. Adams, (12 Met.) 53 415. 59. In a complaint, for not driving on the right of the middle of the travelled part of the road, it is not necessary to set forth a particular description of the road. Comm. «. Allen, (11 Met.) 52 403. 60. The fact that a servant is liable for dam- ages, under the statute, is no bar to an action against the master. Reynolds v. Hanrahan, 100 313. II. Highway by Dedication ok Prescrip- tion. 61. Since the enactment of St. 1846, Ch. 203; G. S., Ch. 43, § 82; P. S., Ch. 49, 8 94, a pub- lic way cannot be established by dedication, un- less there has been a- formal laying out as pre- scribed by statute. Bowers v. Suffolk M. Co., (4 C.) 58 332; Comm. v. Taunton, (16 G.) 82 228; Morse v. Stocker, (1 A.) 83 150; Comm. v. Holliston, 107 232; Comm. v. Coupe, 128 63; Veale ». Boston, 135 187. 62. This statute was enacted for the purpose of altering the law as held in Hobbs ». Lowell, (19 P.) 36 405. Per Mbtcalf, J. in Hayden v. Attle- borough, (7 G.) 73 338. 63. But a public foot way is not within the statute, and may be created by dedication or prescription. Tyler v. Sturdy, 108 196. See, also, Hemphill v. Boston, (8 C.) 62 195; Dan- forth v. Durell, (8 A.) 90 242; Oliver e. Worcester, 102 489; Gould v. Bos- ton, 120 300. 64. One, who attempts to use a public foot way for a horse and carriage, cannot recover for an injury, caused by a defect for that use, although the city has accepted it. Hemphill v. Boston, (8 C.) 62 195. 65. Before the statute of 1846, in order to create a highway by dedication, it was necessary (1) that the owner should dedicate it; and (2) that the city or town, bound to keep it in repair, should accept it. Either of these requisites might be proved by express assent, or by acts from which such assent could be clearly in- ferred; and no specific length of time was necessary. Wright v. Tukey, (3 C.) 57 290; Hay- den v. Stone, 112 346, Comm .«. Coupe 128 63. 66. For additional affirmations of these re- quisites, and rulings upon the sufficiency of particular acts to prove or disprove their ex- istence, etc. Comm. v. Newbury, (2 P) 19 5i ; Springfield v. Hampden Com'rs, (10 P V 27 67; Hobbs «. Lowell, (19 P.) 36 405; Valentine v. Boston, (22 P.) 39 75- Comm. v. Fisk, (8 Met.) 49 238; Averf v. Stewart (1 CO 55 496; Wright i. Tukey, (3 0.) 57 290; Bowers v. Suffolk M. Co., (4 C.) 58 332; Crocket v. Bos- ton, (5 C.) 59 182; Hemphill v. Boston, (8 C.) 62 195; Brown v. Worcester, (13 G.) 79 81; Durgina. Lowell, (3 A.) 85 398; Atty.-Gen'l v. Old Colony R. R., (12. A.) 94 404; Rowland v. Bangs, 102 299, Comm. •». Holliston, 107 232; Fall River Print Works v. Fall River, 110 428; Sexton v. No, Bridgewater, 116 200; McKenna v. Boston, 131 143. 67. Mere user could never establish a way by dedication; and on the other hand, user was not necessary to establish it, although user tended, to prove an acceptance. Hayden « Stone, 112 346. See, also, Morse v. Stocker, (1 A.) 83 150. 68. One who dedicated his land for a public way might prescribe terms and limitations; and if it was accepted, they became binding. Hemphill e. Boston, (8 C.) 62 195, 69. A road, opened before the statute of 1846, may have become a highway by dedication or prescription, although it was opened by a tavern keeper over his land, for the accommodation of his tavern, and both its termini are within the- same town. Comm. v. Petitcler, 110 62. 70 Ways by prescription and waysbydedl cation rest upon entirely different principles. The first is established upon evidence of user by the public, adverse and continuous, for 20. years or more, from which arises the presump- tion of a reservation or grant, and the accept- ance thereof; or that it has been regularly laid out by the proper authorities, of which no record exists. Comm. v. Coupe, 128 68. See, also, Jennings v. Tisbury, (5 G.) 71 73; Taylor o. Boston W. P. Co., (12 G.) 78 415; Holt v. Sargent, (15 G.) 81 97; Richards v. Bristol Com'rs, 120 401. 71. Such a use renders the city or town liable to keep the way in repair. Veale v. Boston, 135 187. 72. The statute of 1846 does not apply to a way by prescription. Jennings v. Tisbury, (5 G.) 71 73; Richards «. Bristol Com'rs, 120 401; Comm. t>. Matthews, 122 60; Comm. v. Coupe, 128 63; Veale v. Boston, 135 187. 73. Nor to a turnpike road, given up to the public at the expiration of its charter. Richards v. Bristol Com'rs, 120 401. HIGHWAY, II; III, (1). 645 74. Where the towns, through which such a road passed, were authorized by statute to lay it out as a highway, uninterrupted public user and occupation by a town, for more than 20 vears establishes it as a highway, although the provisions of the statute were not strictly com- P Richards v. Bristol Com'rs, 120 401. 75. Public footways, which the city is bound to keep in repair, and for defects in which it is liable to an action, exist in Boston by prescrip- tion. Gould v. Boston, 120 300. See, also, Tyler v. Sturdy, 108 196. 76. "Where a highway was located anew in 1850, and between one side of it, as relocated, .and a row of buildings, was a strip of land; the use of this strip for 20 years, by the public, does not make it part of the highway, for defects in -which the town is responsible; unless the 20 years were since 1850. Stockwell v. Fitchburg, 110 305. 77. Oral testimony that a road was known as & highway, and used as a common, county road, for many years before a canal was dug across it, will warrant a jury in finding that it was a ; liighway before the canal was dug. Wbburn v. Henshaw, 101 193. 78. Long user, by the inhabitants of the neighboring towns, tends to prove that a road was a county way, rather than a town wav. Coram, o. Newbury, (2 P.) 19 51. 79. Proof of usage to pass over a common, however long continued, will not support a plea that it is a highway. Emerson D.Wiley, (7 P.) 24= 68 80. A highway may be proved by prescrip- tion, although it is at or near a place, where a way is shown by a record to have been estab- lished. Comm. v. Old Colony, etc., B. B., (14 G.) 80 93. 81. Where, after a quay in Boston had been used as a street for 60 years, the mayor and aldermen laid out a street, passing at some dis- tance from warehouses fronting thereon, and payed it to the line so laid out, and sold the ■strip beyond the line; this proves a highway by prescription over the quay, but not its discon- tinuance over the strip. Stetson v. Faxon, (19 P.) 36 147. 82 For rulings as to highways by prescrip- tion irom immemorial usage, or usage for more than 20 years, under the former statutes, see Comm. v . Low, (3 P.) 20 408; Odiorne a S^A ( 5 P -> 22 431 ; Reed v. North- field, (13 P.) 30 94; Williams d. Cum- ^0°. (18 P.) 35 312; Folger v. ^° r ?A ( i 9R ) 36 108; Comm. « 8 Beld- mg,(13.Met.) 54 10. n't« 8 L A Way extracted by a corporation, for nvpJt U8 - e ' and the me of its tenants, having «™™ sl S n "^ate way," does not becoml « public way by general usage. JJurgm 0. Lowell, (3 A.) 85 398. ™e, also, Rowland e. Bangs, 102 299. is tn fho nl,. i .. III. Statutory Proceedings to lav out, ALTEB, OB DISCONTINUE A WAY. ISee, also, Cotthty Commissioners. As to pro- ceedings to lay out a, bridge, see Bridge, II, (I). | (1.) Jurisdiction; correction of errors. 84. By St 1827, Ch. 77, the former system of laying out highways was changed. The court of sessions was abolished, and superseded by the county commissioners, and the duties and functions of locating committees and commis- sioners of highways were also transferred to the latter. Princeton v. Worcester Com'rs, (17 P.) 34 154. 85. For various rulings under the former system, superseded by or incorporated into the existing statutes, see Comm. «. Metcalf, 2 118; Comm. v. Chase, 2 170; Comm. v. Cumings, 2 171; Comm. «. Coombs, 2 489; Comm. «. Sheldon, 3 188; Comm. «. Peters, 3 229; Comm. ■». Westborough, 3 406; Craigie ■». Mellen, 6 17; Comm. ■». Egre- mont, 6 491; Comm. v. Cambridge, 7 158; Springfield «. Hampden Com'rs, (4 P.) 21 68; Kean v. Stetson, (5 P.) 22 492; Danversii. Essex Com'rs, (6 P.) 23 20; & parte New Salem, (6 P.) 23 470; Parks ■». Boston, (8 P.) 25 218; Comm. v. Berkshire Com'rs, (8 P.) 25 343. 86. County commissioners have jurisdiction, to lay out a town way, only where the selectmen have unreasonably neglected or refused to lay it out, and their record must so state. Belchertownc. Hampshire Com'rs, (11 C.) 65 189. 87. Their record is conclusive, unless avoided by certiorari. Durant v. Lawrence, (1 A.) 83 125. 88. As to what is such an unreasonable neglect or refusal, see New Marlborough v. Berkshire Com'rs, (9 Met.) 50 423; Brown «. Essex Com'rs, (12 Met.) 53 208. 89. Whether the way is for the use of the town, rests entirely in their discretion. Monterey ». Berkshire Com'rs, (7 C.) 61 394. 90. The adoption of a city charter, after pro- ■ ceedings, for the establishment of a town way, have been commenced before county commis- sioners, does not oust their jurisdiction to pass an order for the construction of the way, before the city government is organized; and the order may be addressed to the town. Durant ». Lawrence, (1 A.) 83 125. 91. Under a statute, providing that the mayor and aldermen of a city, with the concurrent vote of the common council, shall have exclu- sive authority and power to lay out a street, if, in concurring with an order, the common coun- cil propose amendments, in matters . incidental to and not modifying, the location, with which the mayor and aldermen agree, this is not ground for a certiorari to quash the proceedings. Pickford v. Lynn, 98 491. 92. The board of aldermen of Boston, inlay- ing out ways, and the city officers, in construct- ing them, act in the exercise of the right of eminent domain, delegated to them by the Com- 646 HIGHWAY, HI, (1), (2). monwealth, and not as agents or servants of the city; and their powers cannot be abridged by any prior covenants, or other acts of the city, as a municipal corporation. Brimmer v. Boston, 102 19. 93. The extension by St. 1867, Ch. 94, to Springfield, of St. 1866, Ch. 174, relating to Boston, did not give the board of aldermen of Springfield authority to widen a street or assess a betterment; and they may be restrained from so doing by prohibition. Day d. Springfield, 102 310. 94. A city council, acting under a statutory authority to lay out, etc., any street or way, but making no provision as to the manner in which the authority shall be exercised, must conform to and be governed by the general regulations of the statute on the subject. Barnes v. Springfield, (4 A.) 86 488. 95. The authority of a city council to lay out streets, is not like that of selectmen to lay out town ways, but like that of county commis- sioners to lay out highways; and an objection to the regularity of their proceedings cannot be • taken, in an action to recover an assessment, but must be raised by certiorari. Lowell v. Hadley, (8 Met.) 49 180 96. Proceedings for laying out highways^be- gin before county commissioners, a tribunal acting not according to the course of the com- mon law, and are therefore subject to be reversed by certiorari. Warner «. Franklin, 131 348. 97. The rulings of the sheriff, at a jury trial, are to be certified with the verdict to the supe- rior court; and the decisions of that court there- upon may be reviewed upon appeal, or excep- tions, as in other cases. New Haven, etc., Co. v. Northampton, 102 116; Warner v. Franklin, 131 348. 98. The objection, that the petition to the county commissioners for a jury was not filed, within the time allowed by law, may be taken on application for a certiorari. Charlestown B. Railroad v. Middlesex Com'rs, (7 Met.) 48 78; Charles R. B. R. R. v. Norfolk Com'rs, (7 G.) 73 389; Brookline v. Norfolk Com'rs, 114 548; Cambridge v. Middlesex Com'rs, 117 79; Warner v. Franklin, 131 348. 99. And the same objection, taken at the beginning of the trial before the sheriff's jury, has been sometimes allowed, on motion, to set aside the verdict, when returned into court; but semble, that this practice is incorrect. Warner v. Franklin, 131 348. See, also, Eaton v. Framingham, (6 C.) 60 245; Russell v. New Bedford, (5 G.) 71 31; Fall River P. Works «. Fall River, 110 438; Whitney©. Lynn, 122 338. 100. A certiorari will not lie to revise the ad- judication of the commissioners, in the matter of costs, in the alteration of a town way; or to quash l heir proceedings, because they omitted to take a new recognizance, upon an amend- ment of the petition. New Marlborough ■». Berkshire Com'rs, (9 Met.) 50 423. 101. Nor will a certiorari lie, because a town,, in making application for laying out a high- way, gave no recognizance for costs. Blake v. Norfolk Com'rs, 114 683. 102. Nor for any defect of form, which has been acquiesced in. Ex parte Miller, 4 565. 103. The supreme court has no jurisdiction, to determine the question, of the necessity and convenience of the proposed way or alteration, upon certiorari. Thorpe «. Worcester Com'rs, (9 G.) 75 57. See, also, Comm. «. Westborough, 3 406; Kingman v. Plymouth Com'rs, (6 C> . 60 306. (2.) Petition; notice; adjudication. 104. A petition to lay out a highway is de- fective, which does not express the termini' with exactness; and the proceedings will be quashed on certiorari on that ground; and also" where the way, as laid out, is not within the way prayed for. Pembroke v. Plymouth Com'rs, (12 C>- 66 351. 105. "A point near the dwelling house of A," on a certain road, is a sufficiently definite ex- pression of a terminus. Westport v. Bristol Com'rs, (9 A.) 91 203. 106. A petition must be signed by the persons required by statute to present it. Barnes v. Springfield, (4 A.) 86 488. 107. A petition to county commissioners for the relocation of a highway, signed by five citizens of the town, is not invalid because three persons, designating themselves as the-, selectmen of the town, joined therein without the town's authority; and. the fact that the select- men refused to call a meeting on the applica- tion, does not affect the question, whether the proceedings should be quashed on certiorari. Hyde Park v. Norfolk Com'rs, 11T 416. 108. It is too late for a city to take the objec- tion that the petition was addressed, not only to the mayor and aldermen, but also to the- common council, where it has been acted upon by the former, a warrant has been issued for a jury to assess damages, their verdict set aside,, and. application made for a new warrant. Worcester v. Keith, (5 A.) 87 17. 109. A petition to county commissioners, to lay out a town way upon the selectmen's refusal, need n6t aver that they "unreasonably" re- fused. Monterey . Westborough, 3 406. 116. And where, after legal notice to all per- sons and corporations interested, and an adjudi- cation in favor of a way, an informal notice was given to a town, of a time and place, when and where it might be heard, upon which the town refused to act, that town cannot object upon certiorari to a defect in the notice. Kutland v. Worcester Com'rs, (20 P.) 37 71. 117. See, further, for illustrations of the rule, that a defective notice is cured by a subsequent sufficient notice, or by the attendance of the party, and his failure to object to the sufficiency of the notice, Ex parte New Salem, (6 P.) 23 470; Hancock v. Boston, (1 Met.) 42 123; Whately s . Franklin Com'rs, (1 Met.) 42 336; Holden «. Berkshire Com'rs, , (7 Met.) 48 561; New Marlborough v. Berkshire Coin'rs, (9 Met.) 50 423. 118. So where a party was iwn compos, and tad no guardian. Hancock % Boston, (1 Met.) 42 122. 119. A new town, created after an adjudi- cation in favor of a highway therein, made upon notice to the old town, is not entitled to a new notice. w ^ orth _ Reading v. Middlesex Com'rs, 1»3°' ^, here a street was laid out o^r infants' ™q without notice or estimate of damages, *hfl£ no . tl S e t0 a tenant to remove buildings, T w ■ . communicated ,o their guardian, IZl an was allowed at th e first term after r^™? 6 of a ge, although it was more than a year afterwards. Stone «. Boston, (2 Met.) 43 220. 121. Notice to an agent of a land owner, who acquires title pending the petition, given to the agent as a land owner in his own right, suffices, where the mayor and aldermen did not know that he had acquired title, when the order to lay out the street was adopted. 1 Pickford v. Lynn, 98 491. 122. Under the R. S., where a person inter- ested met the commissioners to view the route, according to notice, and the meeting was adjourned without action, an objection to the construction of the board, taken at the adjourned day, was seasonable. Danvers v. Essex Com'rs, (2 Met.), 43 185. 123. A notice of meeting for a view, signed "By order of the commissioners, A. B., chair- man," suffices, although it does not appear that It was issued at a meeting of three or more. Comm. ■». Berkshire Com'rs, (8 P.) 25 343. 124. Notice of a meeting for a view, to all persons interested, published in a newspaper of the county, suffices. Freetown v. Bristol Com'rs, (9 P.) 26 46. 125. Posting, by selectmen, of notice of their intention to lay out a town way, is sufficient notice to a land owner, although he is a resi- dent of the town, if his ownership was not known to the selectmen. Healey v. Newton, 119 480. 126. Want of notice to one land owner is not a ground for an injunction against completing a street, at the suit of another land owner. Nichols «. Salem, (14 G.) 80 490. 127. The objection that the county commis- sioners' record does not show sufficient notice of the meeting for adjudication, or of the meet- ing for laying out, cannot be taken upon a bill in equity for an injunction, but only upon certiorari. Gilkey r>, Watertown, 141 317. 128. An adjudication, that the common con- venience and necessity require "that the prayer of the petitioners should be in part granted," without designating the termini, or the extent, etc., of a new location, is void, for uncertainty, and cannot be made good by subsequent action of the commissioners. Yeamans e. Hampden Com'rs, (16 G.) 82 36. See, also, Danvers n. Essex Com'rs, (2 Met.) 43 185. 129. Upon a petition to lay out a highway, over and along a bridge 32 feet wide, the com- missioners may adjudge, that common conveni- ence and necessity require the way, and at a subsequent meeting may lay it out 50 feet wide, and determine that only 32 feet in width shall be made convenient for use at present; and in that case an obstruction on the unfinished part is a nuisance. Comm. ®. Boston & L. Railroad, (12 C.) 66 254. 130. The necessity of the way, to which the ': statute refers, is not an absolute physical neces- • sity; but the way must be so great a public i benefit, that the want of it is a great public in- I convenience. I Comm. v. Cambridge, 7 158 648 HIGHWAY, HI, (2), (3). 131 A new highway ought not to be estab- lished, merely because individuals will defray the expense; nor can it be adjudged a matter of common convenience or necessity, because an individual has given a bond to the town to defray part of the expense. • Cdmm. v. Cambridge, 7 158; Comm. v. Sawin, (3 P.) 19 547; Freetown v. Bristol Com'rs, (9 P.) 26 46. 132 But where a new highway between two towns will pass through another county, the commissioners may properly take a bond from individuals, that the portion in the other county shall be laid out by the commissioners of that county, or that it shall be kept open and in repair. Freetown v. Bristol Com'rs, (9 P.) 26 46. 133. Under the former statute, it was held, that commissioners of highways, after their return, had no power to adjudge another part of the same highway to be of common conve- nience, etc. , without a new application. West Boston Bridge v. Middlesex Com'rs, (10 P.) 27 270; Comm. *. "West Boston Bridge, (13 P.) 30 195. 134. A highway may be laid out for only part of the way, between the same termini. Princeton v. Worcester Com'rs, (17 P.) 34 154. 135. In laying out a turnpike as a highway, the county commissioners have no power to require a town, to tend the draw in a bridge over a navigable river, and keep lamps lighted thereupon, as the turnpike company was obliged to do; and such a requirement invalidates the entire proceedings. Braintree v. Norfolk Com'rs, (8 C.) 62 546. 136. An order of the commissioners, dismiss- ing a petition for the discontinuance of a high- way, on the ground that it is not a highway, is not evidence that it was not a highway. Comm. v. Petitcler, 110 62. 137. Under the R. S., the question whether an adjudication upon a way, made by county commissioners at the time of their view, or at a special meeting, is final, is to be determined by their intention, as manifested by their re- cords. New Marlborough v. Berkshire Com'rs, (9 Met.) 50 423. 138. Sernble, that the commissioners' adjudi- cation that public convenience, etc., require the laying out of a way, may be rescinded by them, at any time before the location. Thorpe ». Worcester Com'rs, (9 G.) 75 57. See, also, Hill v. Worcester Com'rs, (4G.) 70 414. 139. Upon a petition to them to rescind such an adjudication, special notice need not be given to the original petitioners, if the road has been partially laid out; and service of copies of the petition to rescind on the town clerks, and by posting in two public places in each town, suffices. Thorpe e. Worcester Com'rs, (9 G.) 75 57. (3.) Laying out the way. [See, also, ante, I, (2).] 140. For various rulings under the former statute, relating to the locating committee therein provided for, see Lancaster v. Pope, 1 86; Comm. v. Coombs, 2 489; Comm. ®. Westborough, 3 406; Comm. v. Great Barringlon, 6 492; Comm. ■». Ipswich, (2 P.) 19 70. 141. Nor can a person, whose land was taken, maintain a certiorari, on the ground of technical parliamentary irregularities in the proceedings of the mayor and aldermen of a city. Cornell v. New Bedford, 138 588. [See, also. Town and City, II, (3).] 142. The proceedings of county commission- ers, in laying out a highway, cannot be revised by the supreme judicial court, on the grounds that the way is wholly within one town, leads from one town to another, and does not form a link in any line of county road. Blackstone v. Worcester Com'rs, 108 68. 143. Where public notice of a meeting of the county commissioners, to locate a highway and assess the damages, was given under St. 1828, Ch. 103, § 3, it was sufficient, as against the heirs of a person whose land was taken, who died four days before the meeting, without the Commonwealth, and whose heirs neither re- sided within the Commonwealth, nor had actual notice. Taylor «. Hampden Com'rs, (18 P.) 35 309. 144. If, when the county commissioners view the route, any person interested appears and objects, the commissioners, after adjudication in favor of the common c nvenience, etc. , of the way, are required to give further notice to all persons interested, before they lay out the way; but such additional notice is not jurisdic- tional, and may be waived by a party interested. Rutland «. Worcester Com'rs, (20 P.) 37 71. 145. The way may be laid out at an adjourned meeting, without a new notice. Westport v. Bristol Com'rs, (9 A.) 91 203. 146. As to what is a sufficient description of the location or alteration of a way, see Hinckley «. Hastings, (2 P.) 19 162; Freetown v. Bristol Com'rs, (9 P.) 26 46; Stone v. Cambridge, (6 C.) 60 270; Monterey v. Berkshire Com'rs, (7 C.) 61 394; Andover v. Essex Com'rs, (5 G.) 71 393; Blaisdell v. Winthrop, 118 138. 147. Although the description in the location, and a plan therein referred to, differ, if the way can be identified with sufficient certainty, the location is valid. Gilkey v. Watertown, 141 317. 148. The selectmen, or a majority of them, not the town, are authorized to lay out a town way. Kean «. Stetson, (5 P.) 22 492; Jones *. Andover, (9 P.) 26 146. 149. No adjudication as to public conven- ience, etc. , is necessary. Jones v. Andover, (9 P.) 26 146. HIGHWAY, III, (3). 649 110 When laid out by them, and approved bv the town, it is established, although a party may apply for a discontinuance. Craigie v. Mellen, 6 7. 151. The decision of the town is final, unless overruled on appeal. Craigie ». Mellen, b 7. 152 It is no objection to the selectmen's ac- tion that the road will be as much used by in- habitants of other towns, or by strangers, as by the inhabitants of the town, or that it is a link in a chain of roads. Craigie v. Mellen, 6 7; Monterey v. Berkshire Com'rs, (7 C.) 61 394 153. The selectmen may estimate the land owner's damages at the meeting, where the way is located. Higginson v. Nahant, (11 A.) 93 530. 154. The erection of monuments at the termini and angles of a way, is not essential to a valid location; and compliance with the statute on that subject need not be stated, in the record of laying out. Monterey v. Berkshire Com'rs, (7 C.) 61 394. ' 155. The proceedings of the selectmen, in laying out a town way, must be recorded, else an obstruction is no nuisance. Comm. v. Merrick, 2 529. 156. But an abutter is liable, upon his prom- ise to pay for benefits, before the recording. Boston v. Brazer, 1 1 447. 157. The provisions of the statute, relating to the filing of the report of a town way, do not apply to a city street. Poor v. Blake, 123 543. . 158. The neglect of the selectmen, to file the Boundaries and measurements of the alteration of a town way, seven days before the meeting of the voters for action thereupon, renders their action invalid, although no person applied, during the seven days, to inspect the report. Jeffries v. Swampscott, 105 535. 159. If a plan is referred to in the report, it ffiust also be filed. Jeffries v. Swampscott, 105 535. 160. Where the report of laying out a city street, after it had been filed more than seven days, pursuant to an ordinance, was recommit- ted but no further report was made thereupon, and was afterwards acted upon, it was held, that the street was legally laid out. Lowell v. Hadley, (8 Met.) 49 180. «fi 6 V A city ' wnicn has taken lan d, an d con- smictect a highway over it, cannot object that ™J», w Was & ven ol the Purpose to locate, Jior mat the owners' names were not stated in the laying out. ^Haskell v. Bristol Com'rs, (9 G.) 75 BotwJi lle i mayor and aldermen of Boston can- safp v ! V ayout a street - or determine upon its DewLw' Convenie nce, without notice to all Persons interested of their intention to do so. otone v. Boston, (2 Met.) 43 220. inir 6 n 1 ' 1 t Th f P rocee dings of the selectmen, in lay- firoumf X * wa y> cannot b e avoided, on the a laBX n o notice was given to the owner, Vol. i_82 by a subsequent occupant who does not claim title under him. Comm. «. Weiher, (3 Met.) 44 445. 164. One who attends the town meeting, and objects that he was not allowed sufficient dam- ages, cannot avoid the selectmen's proceedings, for want of notice. Copeland v. Packard, (16 P.) 33 217. 165. Semite, that pointing out the direction is sufficient notice, although a new line is after- wards run back on the party's land, to complete the survey. Copeland v. Packard, (16 P.) 33 217. 166. A vote of the aldermen of Boston, lay- ing out a public way, and assessing damages therefor, cannot be impeached collaterally, for not stating separately the damages of each per- son. Brimmer v. Boston, 102 19. 167. As to the effect of St. 1873, Ch. 206, J 3, and St. 1873, Ch. 314, § 3, consolidating Bos- ton, Charlestown, and West Roxbury, upon pending proceedings to lay out ways in Charles- town and West Roxbury, see Stone v. Charlestown, 114 214. 168. Where a private way or a town way has been illegally laid out by the selectmen, and ap- proved by the town, the owner of the land may maintain trespass for entering and jjsing the road, without bringing a certiorari. Holcomb v. Moore, (4 A.) 86 529. 169. If, after laying out a city street, nothing more is done by the city within two years, the previous possession taken and work done go for nothing; but they may give meaning to the pos- session taken, after laying out,to show that it was for constructing the way. Wilcox v. New Bedford, 140 570. 170. For a ruling, that under the circum- stances of the case, possession was taken within two years by the city, for the purpose of laying out a way, see Wilcox ». New Bedford, 140 570. 171. Where county commissioners, upon a petition to alter a town way, according to a re- port of selectmen, which it was alleged that the town, unreasonably refused to accept, gave no- tice to the town, had a view, and ordered the petition to be dismissed; and the order was not recorded or filed, and a subsequent meeting va- cated the order, allowed the petition to be amended, and proceeded anew; it was held that the proceedings were regular. New Marlborough ». Berkshire Com'rs, (9 Met.) 50 423. 172. And where the amendment changed the allegation, by averring that the selectmen un- reasonably refused to alter the way, it was held that service upon the town of a copy of the amended petition was sufficient notice. New Marlborough v. Berkshire Com rs, (9 Met.) 50 423. 173 When the commissioners, after passing an order, directing the town to make the road by a certain day, at a subsequent meeting made an order directing the town to make and complete it bv 'another day, it was held that the_ second order was valid; and a clerical mistake in recit- ing the date of the first order was immaterial. Monterey v. Berkshire Com'rs, (7 C.) 61 394. 650 HIGHWAY, HI, (3), (4). 174. The provisions of the statute, requiring the county commissioners to allow the owner a reasonable time, to remove his " timber, wood, or trees," apply to the removal of buildings. Comm. v. Noxon, 121 42; Colburn v. Kittridge, 131 470. 175. What is a reasonable time to remove a building depends upon its character, the diffi- culty of its removal, and the use to which the land covered by it is thenceforth to be devoted. Colburn v. Kittridge, 131 470. 176. An order to allow a portion of a build- ing to remain in the highway, "while the present building stands," is nugatory, and the surveyor may remove the building, after notice to the owner. Colburn «. Kittridge, 131 470. 177. A certiorari will not lie to quash the proceedings, because the commissioners, at a subsequent meeting, modified the order allow- ing time f^r the removal of timber, etc., with- out notice to the town. No. Beading ». Middlesex Com'rs, (7 G.) 73 109. 178. Selectmen have no power to lay out a town way, between high water mark and the channel of a navigable river. Kean v. Stetson, (5 P.) 22 492. 179. But the fact, that part the;way is below high water mark, is no defence to an indictment for a nuisance on the part above high water mark. Comm. v. Weiher, (3 Met.) 44 445. 180. County commissioners have no authority to lay out a highway over navigable waters. Charlestown v. Middlesex Com'rs, (3 Met.) 44 202. 181. Nor over land set apart by the legisla- ture for a public use, which would be destroyed by a highway. Ex parte Wellington, (16 P.) 33 87. 182. Nor over a beach forming one side of a harbor, covered by springtides, and often useful to vessels in the harbor. Marblehead v. Essex Com'rs, (5 G.) 71 451. 183. But a highway may be laid out over flats between high and low water mark, which have been lawfully filled up by the owner of the upland. Henshaw v. Hunting, (1 G.) 67 203. 184. Under the former statute, the court of sessions might lay out a highway, upon the division line between two towns, in which case each town was bound to repair its portion. Comm. 1). Stockbridge, 13 294. 185. As to laying out a highway over a turn- pike road, or a railroad, see West Boston Bridge m. Middlesex Com'rs, (10 P.) 27 270; Comm. ■». Haverhill, (7 A.) 89 523. 186. Where a private way, laid out by select- men, and accepted by the town, is described as - " bridle road," this does not limit the right of a user, Plagg v. Flagg, (16 G.) 82 175. 187. A private way, laid out by selectmen or county commissioners, is open to public use, and the laying out is valid, although all the damages are awarded to be paid by the person to whose house it leads. Denham v. Bristol Com'rs, 108 202. 189. A private way cannot be laid out "to be used only during the time of sleighing." Holcomb «. Moore, (4 A.) . 86 529. 189. Selectmen may lay out a town way, re- turning to the highway near the place where it leaves it, and designed merely to provide the public with access to pleasing natural scenery! Higginson v. Nahant, (11 A.) 93 530. 190. A footway may be laid out across a rail- road. Boston & A. Railroad ». Boston, 140 87. (4.) Altering or relocating. [See, also, ante, III, (3).| 191. Semble, that widening a road is not alter- ing it. Comm. ■». Cambridge, 7 158. 192. Where the city council of Boston built a fence around the common, setting the fence back from the line of Park street, and made a sidewalk, covering the strip so taken from the common, which was used by the public for more than 20 years, but no record of the widen- ing was made, it was held that the strip had become part of the street by prescription. Veale v. Boston, 135 187. 193. Por rulings respecting the admissibility of proceedings of commissioners, in relocating a street, for the purpose of showing the line thereof, at the time of taking land by a city for a street, see Dean «. Lowell, 135 55. 194. It was held, under the former statute, that upon a petition for alteration of a highway, the court could not establish a new one. Comm. v. Cambridge, 7 158. S:e comments upon this case in Goodwin v. Marblehead, (1 A.) 83 37. 195. Where upon a petition for the alteration of a road, or the location of a new road, the commissioners lay out a new road between the termini stated, the proceedings are not invali- dated because it is described as an alteration. Comm. t>. Berkshire Com'rs, (8 P.) 25 343. 196. Where, after a highway had been located by county commissioners, but not constructed, and no damages had been paid, they made a new location, corresponding substantially with the former location, except a variation near one end, but without changing the termini, it was held that there was no ground for quashing the proceedings on certiorari. Granville v. Hampden Com'rs, 97 193. 197. Where county commissioners, upon a petition to relocate a highway, adjudge that public convenience, etc., require the granting of the petition, and order a second meeting, to view and relocate the highway, this is a suffi- cient adjudication, and the order is a sufficient notice to persons interested. Hyde Park ». Norfolk Com'rs, 117 416. HIGHWAY, III, (4), (5). 651 198 Where an order for the completion of tie n*w location by the town in three sections, within one, two, and three years, respectively, also provided that no entry should be made upon a certain portion of the road, except under a supplementary order, which was never made; it wis held that this modification, as to a portion of the road, had no effect upon the order as to the residue. Hyde Park v. Norfolk Com'rs, 117 416. 199. Upon a petition to relocate a highway, the commissioners have authority to take land, not before within the limits of the highway, and to make such changes in the grade as are incidental to the changes in course and width. Hyde Park «. Norfolk Com'rs, 117 416; Bichards v. Bristol Com'rs, 120 401. 200. Where a petition for an alteration of a highway, 50 feet wide, prayed that it might be narrowed by taking 10 feet from the easterly side, so as to leave the boundary line on the side of the petitioner's wall, and it was ordered accordingly, the order stating that the high- way was then made 40 feet wide, but in fact the wall was less than 39 feet from the westerly houndary; it was held that this was not a new laying out, so as to take more land on the west- erly side. Cutter «. Cambridge, (6 A.) 88 20. SOI. A change in the course of part of that portion of a highway, which is altered else- where by widening and straightening it, is not a new laying out, but a mere alteration. Hobart v. Plymouth Co., 100 159. 202. Where, however, a street was discon- tinued, except a small part at one end, and a street was laid out which took in that part, but began at a different point, and ran in a different direc- tion, this is not an alteration, but a laying out of a new street. New York & N. E. Eailroad v. Boston, 127 229. 203._ Where individuals agree to pay a city a portion of the expense of widening a street, flie city may maintain an action, although it has allowed the second story of one building to project beyond the line of the first story, the street being in all other respects of the stipu- lated width. Boston n. Simmons, (9 C.) 63 373. . 2() 4. Where a city council, pending proceed- ings to widen a street, ordered all fences, etc., on the street encroaching on the limits thereof as shown by a certain plan," to be removed, it was held that this was not the laying out or widening of a street. Somerville v. Middlesex Com'rs, 122 (5.) Acceptance. f n!°£.' In a . suit b y a land owne r against a city, ior tiespassmg on his land, to construct a way, «L™ ■ , co , unt y commissioners, it is not rfttewa" 1 fenoe t0 P r0Ye a final acceptance Durant v. Lawrence, (1 A.) 83 125. 206. County commissioners can accept a way, which they have ordered a town to build, only when acting together, and by a majority vote. Reed «. Scituate, (5 A.) 87 120. 207. A town way, laid out by selectmen, may be accepted by the town, although the warrant for the town meeting is dated and issued before the way is laid out. Harrington «. Harrington, (1 Met.) 42 404. As to the rule under the former statute, see Kean v. Stetson, (5 P.) 22 492. 208. The records of a town in 1800 showed, that the warrant for a town meeting contained an article, "to see if they will accept any roads or discontinue any roads;" that the meeting met and was adjourned; that afterwards the selectmen surveyed and laid out a road; and that, at the adjourned meeting, the town ac- cepted the road, "according to the survey:" this proves a legal establishment of a town way. Geer ». Fleming, HO 39. See, also, Jones v. Andover, (9 P.) 26 146. 209. Where, pending proceedings on a peti- tion for the extension of a street, and upon another petition for such extension, and the lay- ing out and acceptance as a highway, of the whole street; a city council adopted a resolution, laying out and -accepting the whole street, no notice of the second application having been given, it was held that the entire proceeding was void. Dwight «. Springfield, (4 G.) 70 107. 210. A petition to the board of aldermen of a city by a land owner, asking to have a court, with house lots on each side, which he has laid out and named, recognized by such name and duly recorded, etc., and an order that the court be called by that name, do not establish the court as a public way. Oliver i>. Pitman, 98 46. 211. Where the mayor and aldermen ordered that L street be accepted and laid out as a public highway, and graded "from A to S streets, and A street from O to K streets," neither L street nor A street having been pre- viously laid out or accepted, it was held that only L street, between A street and S street, was laid out and accepted. Atty.-Gen'l «. Old Colony, etc., Kail way, (12 A.) 94 404. 212. Where individuals subscribe money to defray part of the expenses of a town way, and that fact is made known before the acceptance of the way, it does not vitiate the acceptance. Copeland v. Packard, (16 P.) 33 217. See, also, Parks®. Boston, (8 P.) 25 218. 213. Where selectmen laid out a town way over the land of A, and awarded him damages, to be paid by B, before the road should be opened, and the town voted to accept the road on condition that B should build the road, and defend the town against all prosecutions, and the damages awarded to A were tendered to him before his land was entered, it was held that the way was legally established. Harrington «. Harrington, (1 Met.) 42 404: 214. The statutory provision, requiring the report to be filed in the clerk's office, seven days €52 HIGHWAY, III, (5), (6). before the voters' meeting, is not applicable -where the way is laid out by a city. Taber v. New Bedford, 135 162. 215. "Where the town never specifically authorized, by an express vote, the building of -a way as laid out; but the surveyor of high- ways, by order of the selectmen, began to build the way within two years after it was laid out; and the officers of the town, with its acquiescence, continued from time to time to complete other parts of the way; and at a town meeting, the selectmen were instructed to obtain estimates of cost, but they did not report till eight years afterwards, when the town granted a certain sum; it was held, that the town took possession within the two years required by the statute. Gilkey v. Watertown, 141 317. C6.) Discontinuing. 216. As to discontinuing a highway by the act of the legislature, see Wales v. Stetson, 2 143; Tucker v. Russell, (14 P.) 31 379. 217. For rulings under the former statute, incorporated into, or abrogated by, the existing .statute, see Comm. v. Roxbury, 8 457; Comm. ». Tucker, (2 P.) 19 44. 218. If a highway becomes useless, by rea- son of the opening of a turnpike road, that is good cause for discontinuing the former. Comm. ». Roxbury, 8 457. 219. A public way may be shown to have been discontinued, by proof that it has been closed by permanent fences, and the land con- tinuously occupied, for purposes inconsistent with its use as a way, for the statutory period of limitation, by the adjoining owners. Holt v. Sargent, (15 G.) 81 97. 220. A private way, established under the statute, is not discontinued by unity of title to, and possession of, all the land through which it is located. Flagg *, Flagg, (16 G.) 82 175. 221. A highway legally discontinued is no longer chargeable to the town, although the reason for its discontinuance has ceased. Comm. v. Western, (1 P.) 18 136. 222. Neither the county commissioners nor the town can discontinue a public landing place. Comm. •». Tucker, (3 P.) 19 44; Ben- nett v. Clemence, (6 A.) 88 10. 223. A description of a town way, in a vote to discontinue it, as "leading from W. G.'s to the pond," is sufficient. Avery v. Stewart, (1 C.) 55 496. 224. An article in a warrant for a town meet- ing ' ' to choose a committee, or to hear and act upon the report of any committee the town may think proper, when assembled," does not authorize the choice of a committee to discon- tinue a portion of a town way, and set off the land to an individual. Wood v. Quincy, (11 C.) 65 487 235. Where the warrant contained an article, to see if they would discontinue a town wayj and the town voted to leave it to the discretion of the selectmen; and at a meeting subsequently called, "to see if they would accept the doings of the selectmen, in discontinuing the road,' the selectmen reported that the way should be discontinued, and the town accepted the report; this is a sufficient discontinuance. Niles v. Patch, (13 G.) 79 254. 226. Establishing an alteration in a way is, in law, a discontinuance of the part altered, and the report of the discontinuance and the acceptance of it are surplusage. Comm. v. Westborough, 3 406; Good- win v. Marblehead, (1 A.) 83 37. 227. Where county commissioners, upon a petition for a new piece of read, or that the ex- isting road be altered and shortened, and such, parts of the existing road, if any, as may be rendered unnecessary, be discontinued, lay out a new piece of road, and pass an order discon- tinuing so much of the existing road, as is ren- dered unnecessary thereby, this is a discontinue ance of such part. Goodwin v. Marblehead, (1 A.) 83 37. 228. And generally, establishing an alteration in a highway, is legally a discontinuance of so. much of the former way, as does not come within the newly assigned limits, without any special order of discontinuance. Bowley». Walker, (8 A.) 90 31; Ho- bart «. Plymouth Co., lOO 159. See, also, Comm. v. Cambridge, 7 158; John- son v. Wyman, (9 G.) 75 186; Bennett ». Clemence, (6 A.) 88 10. 229. But where a new highway is laid out over a portion of an old highway, this does not operate as a discontinuance of the old highway, over any land not embraced in the new highway. Sprague ». Waite, (17 P.) 34 309. 230. For the purpose of proving that a way has not been discontinued, by the substitutton of a new way, it is competent to prove the ex- istence of a public landing, to which the old way furnishes a necessary access, or to which it may reasonably be considered as appurtenant. Bennett v. Clemence, (6 A.) 88 10. 231. The construction of a railroad upon part of a highway, in such a manner as to exclude public travel therefrom, and the making of a new way, fit for public travel, at the side of the railroad, connecting with the portions of the highway not occupied by the railroad, will warrant a jury in inferring a discontinuance of that part so occupied. Warner v. Holyoke, 112 362. 232. Where, after Jthe discontinuance of a town way, a stranger erects a building there- upon, the remedy of the land owner to whom the soil reverts, is by a real action; and trespass for disturbance of his easement will not lie. Tenner t>. Sheldon, (11 Met.) 52 521. 233. The discontinuance of a city street (| whereby the value of land, abutting on othei parts of the street, and on neighboring streets, is lessened, is not a ground to recover damages against the city, if the land is still accessible by! other streets. Smith i). Boston, (7 C.) 61 254. HIGHWAY, III, (6), (7); IV, (1). 653 234 So also, in a complaint for damages, and a trial before a sheriffs jury, for discon- ; ^ g C a asUe g SkshireCo.,(llG.) 77 26. See, also, oosi!, IV, <2).| 235. Where a town voted that a certain way "is hereby discontinued, and that all bonds and agreements be returned to C, if C will hold the town harmless from all damages arising from abutters," it was held, that an indemnity to the town was a condition precedent to the discon- tinuance of the way. . Fuller, 137 326. 236, Where land has been injured by the dis- continuance of a way, and the owner subse- quently dies, his executor or administrator is the proper party to bring a petition for damages. Webster v. Lowell, 139 172. (7.) Revision of the proceedings by «. iwy. [See, aiso,post, IV, (2); IV, (3).] 237. The town through which a highway passes is a party to the proceedings, ana may apply for a jury to make alterations in the location. Lanesborough v. Berkshire Com'rs, (22 P.) 39 278; Westport v. Bristol Com'rs, (9 A.) 91 204. 238. Where the petition of a town to revise a decision in laying out a highway, asks for several alterations, some of which the jury have power to make, and others not, the warrant should issue, and the questions as to those within the jury's power be decided upon the trial. Westport v. Bristol Com'rs, (9 A.) 91 204. 239. The jury have no authority to lay out the way over the land of any one, except a peti- tioner' for the jury; they need not name the owners of the land over which it is located. Merrill v. Berkshire, (11 P.) 28 269. 240. The jury cannot alter the commissioners' decision, as to the public convenience and neces- sity of the road, or its general course and ter- mini; they can only make such minor altera- tions as they think will improve it, or render it less burdensome to those affected. See, how- ever, St. 1870, Ch. 75; P. S., Ch. 49, §§ 79, 86. Merrill v. Berkshire, (11 P.) 28 ?„ 6 9; Lanesborough *>■ Berkshire Com'rs, (22 P.) 39 278; Gloucester ». -Essex Opm rs, (3 Met.) 44 375; Hayward v. North Bridgewater, (5 G.) 71 65; Yea- mans?). Hampden Com'rs, 105 140. »vt J ne Jury may make alterations in a way, ™icn has been "located anew" by the 'com- State Lun. Hospital v. Worcester, (1 Met.) 42 437. th^ Tlley cann °t make any alterations, otber wt J? ?f P ra y ed for b y tte Petitioner, and be- E \ e ter mmi on his land, although the town has voted in favor thereof. HobarU. Plymouth Co., 100 159. 243. Evidence is admissible, that the petitioner admitted that the alterations would not injure his property. Hobart ®. Plymouth Co., 100 159. 244. Under St. 1786, Ch. 67, a jury, altering the course of a highway, may assess the dama- ges therefor. Merrill e. Berkshire, (11 P.) 28 269. 245. A verdict, altering the commissioners' }ocation, is sufficiently certain, if it gives the termini, courses, and distances. Merrill v. Berkshire, (11 P.) 28 269. 246. It is no objection to the verdict, upon a petition praying for an alteration of the location, of a town way on the petitioner's land, that the alteration prayed for and granted, will lessen the width of the way. "Wilson b, Beverly, 103 136. IV. Damages ; Expenses ; Benefits ; Bet- terments. [For analogous oases, see Kaxxkoad, II, (7).] (1.) Award and assessment upon lay- ing out, altering, or discontinuing. 247. In a statute providing for payment of the expenses of laying out, constructing, or locating a way, the word " expenses" includes the damages to be paid to land owners. Damon v. Beading, (2 G.) 68 274, Montague Paper Co. «. Burrows, 121 88. 248. Under G. S., Ch. 43, § 12; P. S., Ch 49, § 13, the expenses of relocating a road may be assessed upon the town. Hyde Park v. Norfolk Com'rs, 117 416. 249. Where the commissioners estimated the expense of making a highway, and ordered that one half of the estimated expense should be paid by the county, and it was, in fact, made for less than the estimate, the court refused a mandamus, on the application of the town, re- quiring the commissioners to draw upon the county for half of the estimate. Lanesborough v. Berkshire Com'rs, (6 Met.) 47 329. .250. County commissioners have no authority to order a town to pay damages to an individ- ual, for land taken for a highway. "Westport v. Bristol Com'rs, (9 A.) 91 203. 251. "Where the county commissioners locate anew a road in a town, and order the expenses to be paid by the town, but that, upon a cer- tain contingency, a portion shall be repaid by the county, the latter part of the order, if it is void, does not affect the validity of the reloca- tion. Blake v. Norfolk Com'rs, 114 583. 252. Where a land owner's name is omitted in the commissioners' award of damages, that is equivalent to award that he has sustained no damages, and his remedy is by petition for a jury, not by certiorari. North Beading ». Middlesex Com'rs, (7 G.) 654 HIGHWAY, IV, (1). 73 109; Haskell v. Bristol Com'rs, (9 G.) 75 341; Phillips o. Middlesex Com'rs, 122 258. See, also, Monagle v. Bristol Com'rs, (8 C.) 62 260; Childs «. Frank- lin Co., 128 97. Contra, Comm. v. Coombs, 2 489; Comm. v. Great Bar- rington, 6 492, overruled. 253. A provision, in the location -of a high- way by county commissioners, that the owner of a house, part of which comes within the location, is not required to remove it until he shall have occasion to rebuild, does not pre- vent him from claiming damages for the ex- pense of removing it, if rendered expedient by the location, or for injuries caused to it by the location. Brown v. Worcester, (13 G.) 79 31. 254. "Where a city assessed to a person, over whose land a street was laid out so as to com- pel the removal of his buildings, a certain sum, in lieu of all damages for the removal, it was held, that, if he was aggrieved, his remedy was by petition for a jury, not by injunction. Nichols v. Salem, (14 G.) 80 490. 255. If a town way is laid out by county com- missioners, over land which A has conveyed to B, by a deed not recorded, and B does not make known his title, and the damages are awarded to A, a certiorari to quash the proceedings will not lie. Brown v. Essex Com'rs, (12 Met.) 53 208. 256. Before the G. S., if a highway was once established, and damages awarded, the land owner's right to them became vested, and was .not affected by a subsequent discontinuance, be- fore the land was entered upon. Harrington v. Berkshire Com'rs, (22 P.) 39 263. 257. The statute of 1842, Ch. 38, forbidding damages to be paid, until the land is entered upon, applied to all public travelled ways, laid out by county commissioners, but not by select- men; and it did not prevent the land owner from having such damages assessed by a jury, before entry thereupon. Harding v. Medway, (10 Met.) 51 465; Bishop «. Medway, (12 Met.) 53 125. 258. It was extended to selectmen by St. 1847. Ch. 250, § 4, but not to cities. Shaw v. Charlestown, (3 A.) 85 538. [For the existing provisions, see G. S„ Ch. 43, 5§ 63, 81; P. S , Ch. 49, §§69, 91/] 259. An action will not lie for the damages, if commenced before entry on the land, although the road is constructed before the trial. LaCroix®. Medway, (12 Met.) 53 123. 260. And where, after a city street had been laid out and accepted, and damages awarded, and upon appeal from the award by a land owner, a new award was made by a jury, and accepted by the court, and the order accepting the street was afterwards revoked before entry; it was held that the land owner was not entitled to damages. New Bedford v. Bristol Com'rs, (9 G.) 75 346. 261. If, at the time of the adjudication by county commissioners, in favor of the proposed highway, a land owner waives all damages, he is bound thereby, and cannot claim damages upon the location. White v. Norfolk Com'rs, (2 C.) 56 361. 262. And in such a case, the commissioners are entitled to take that objection before the sheriff's jury, although upon the location they awarded him no damages, on the ground that the benefit to him was equal to his damages. White v. Norfolk Com'rs, (3 C.) 56 361. 263. The burden of proving a waiver of dam- ages is upon him who alleges it. Brown v. Worcester, (13 G.) 79 81. 264. An agreement not to claim compensa- tion for the land taken, does not prevent a land owner from claiming damages, for altering the grade of a city street. Fernald ». Boston, (12 C.) 66 574. 265. Nor is a waiver of damages, caused by a deposit of gravel from a sidewalk, built by the surveyor, who raised the street, a bar to dam- ages for a change of grade. Mitchell v. Bridgewater, (10 C.) 64 411. 266. Under St. 1871, Ch. 158, and St. 1873, Ch. 51; P. S., Ch. 27, § 75, the petition of a land owner for damages by a change of grade of a highway, in a town which has accepted the statute, and elected road commissioners, should be made to those officers, not the selectmen. ■ Walker v. West Boylston, 128 550. 267. Under the existing statute, where tha owner of land has leased it to one person for years, before it is taken for laying out a high- way, entire damages may be assessed for taking it, and paid to a trustee, to be invested for the benefit of the parties interested; and they need not be apportioned between the lessor and the lessee, or those representing them. Boston t>. Robbins, 121 453; Boston v. Robbins, 126 384. 268. The rule is the same, although the lessee has previously assigned the lease to two per- sons, and the lease contains special provisions, as to taking down and erecting the buildings upon the land, repairs, payment of taxes and assessments, and the like, and the premises are sublet to tenants at will. Boston v. Robbins, 121 453. 269. The trustee may maintain an action against the city for the damages so assessed, after demand. Boston a. Robbins, 121 453. 270. One who is lessee, at the time of passing the order for taking the land, is entitled to dam- ages, although his lease terminates before the actual taking. Edmands ». Boston, 108 535. 271. Where the land is leased to several tenants, the damages should be apportioned, instead of being paid to a trustee. Edmands ». Boston, 108 535. 272. And the amount to be apportioned to each lessee is the market value of his lease, at the time of passing the order to take the land, less the value of his occupation thereafter, until the land was entered upon. Edmands t>. Boston, 108 535. HIGHWAY, IV, (1), (2). 655 278. For rulings under the former statute, where leased land was taken, see Ellis «. Welch, 6 246; Parks v. Bos- ton, (15 P.) 32 198. 274. The surrender of a lease to the lessor, after the taking of the land, with a release of the lessee's claim for damages, is admissible in evidence on the assessment of damages. Dickenson v. Fitchburg, (13 G.) 79 546. 275. A town, bound to maintain a highway, cannot claim damages under a statute, provid- ing for damages to all owners of land, through ■which a canal is to be constructed. Millbury ». Blackstone Canal, (8 P.) 25 473. 276. Damages for taking a highway may be released by an oral agreement, made before the county commissioners, and entered upon their records. Fuller *. Plymouth Com'rs, (15 P.) 32 81. [As to the mode of computing damages, and the items allowable, seepost, IV, (4).| (2.) Application for a jury to revise tbe assessment: warrant thereupon* . 577. For various rulings, under the former statutes, upon an application for a jury, abro- gated by or incorporated into the existing statute, see Comm. v. Norfolk Sessions, 5 435; .•-«4 ' ( v-' Craigie v. Mellen, 6 7; Barre Turnpike v. Si**-''- Appleton, (2 P.) 19 430; Ex parte Cen- tral Turnpike, (7 P.) 24 13; Merrill ». Berkshire, (11 P.) 28 269; Mx parte Hinckley, (15 P.) 32 447; Goddard v. Boston, (20 P.) 37 407; Dwight v. Hampden Com'rs, (7 C.) 61 533; Mon- agle v. Bristol Com'rs, (8 C.) 62 360; Russell v. New Bedford, (5 G.) 71 81. 278. Where a land owrter, after the county commisssoners have laid out a highway and assessed his damages, removes his fences, and rebuilds them on the line of the highway, this does not preclude him from his right to a jury to re-assess the damages. Mc parte 'Endicott, (24 P.) 41 339. 279. An agreement by a land owner with the county commissioners, to release all claims for damages "except some damage for removing jence, does not preclude him from the revis- ion bv a jury of the commissioners' award for removing his fence. Sturtevant v. Plymouth Co., (12 Met.) 53 7. f J«!"„ A party a ggr ieved by relocating a road, lor the purpose of establishing the boundaries, «S of VS. tigU t0 a jury as upon a laying 3g Hadleyi). Middlesex Com'rs, (11 C.) 65 ia«™=^ e ? ght , 8uryiYes ; the le S al represen- ts of a decedent may appear and prosecute. flA™** Boston & Maine Railroad, ft.! ^ £ 2 53 °; Whitman r>. Boston & S R -R-.(3A.) 85 133; Phillips*. •Middlesex Com'rs, 122 258. 282. A town has the right. West Newbury v. Chase, (5 G.) 421. 71 283. Whero the selectmen of a town apply for a jury, their authority is presumed. La Croix «. Medway, (12 Met.) 53 12o. 284. A possessory title entitles a party to apply for a jury. State Lun. Hospital v. Worcester Co., (lMet.) 42 437. 285. And where upon exceptions, it appeared that the petitioner's deed conveyed land bounded by the outer limits of the highway, the court presumed that a possessory title to land within the limits, was proved at the trial. Hartshorn*. Worcester Co., 113 111. 286. All persons having an interest in land, taken to widen a street in Boston, must join in the proceedings for the assessment of damages. Edmands ». Boston, 108 535. 287. The owner of land, taken under St. 1870, Ch. 75, and St. 1873, Ch. 261; P. 8., Ch. 49, §§ 32, 105, may have a jury, although he has not claimed damages before the commissioners. Gilman v. Haverhill, 128 36. 288. One, who sustains damages by dis- continuing a highway, is entitled to a jury to assess his damages, although the highway was never opened or worked. Hallock v. Franklin Co., (2 Met.) 43 558. 289. At the hearing of a petition for a jury, upon discontinuing a town way, the town may show that it was not a legal way. Perry v. Sherborn, (11 C.) 65 388. 290. Possession for nine years, under a claim of title in fee, as a trustee or manager of one of the families of Shakers, is prima fade sufficient to support a petition for a jury upon discontin- uance of a highway. Hawkins v. Berkshire Com'rs, (2 A.) 84 254. 291. But if his claim of title rests upon two deeds, one conveying part of the land to two other persons, as trustees of the United Society of Shakers, and the other conveying the residue to himself and another, as trustees of the same society, he cannot sustain a verdict. Hawkins «. Berkshire Com'rs, (2 A.) 84 254. 292. A grantee, subsequent to the laying out, has no interest in the damages, and the grantor's release of such damages to the city, is not a breach of the covenants in the deed. Patten «. Fitz, 138 456. 293. Under G. S., Ch. 43, 8 22; P. S., Ch. 49, § 33, the application for damages, in the case of a highway, must be made within one year from the making of the final order, which must be recorded as such, unless in case of a suit, etc. Childs®. Franklin Co., 128 97. See, also, Wood «. Quincy, (11 C.) 65 487. 294. An order by the commissioners to their clerk, to draw his warrant on the treasurer of the county, for payment of damages to those whose land has been taken, is not such an order. Childs*. Franklin Co., 128 97. 656 HIGHWAY, IV, (2). 295. An order of a city council, accepting a new grade established by the city surveyor, is such an order. Sisson v. New Bedford, 137 255. 596. The application must be made at a regu- lar meeting of the board; filing it with the clerk is not sufficient. Baton v. Framingham, (6 C.) 60 245. 297. For other rulings, as to the time within which a petition must be filed, in the case of a highway or a city street, see Bennett v. Worcester Com'rs, (4 G.) 70 359; Goddard «. "Worcester, (9 G.) 75 88; Haskell v. Bristol Com'rs, (9 G.) 75 341; Loring t>. Boston, (12 G.) 78 209; Erskine v. Boston, (14 G.) 80 216; Revere v. Boston, (14 G.) SO 218; Whit- ney ». Lynn, 122 338. 298. Under G. S., Ch. 43, § 73; P. S., Ch. 49, § 79, the year within which one must apply for a jury, in the case of a town way, or pri- vate way, if it commences to run before the acceptance of the way, , does not commence to run before the transmission to the town clerk of the description of the location. Brookline v. Norfolk Com'rs, 114 548. 299. If the application is seasonably made, the applicant is not prejudiced by the commis- sioners' delay to issue the warrant for a jury. Brookline «. Norfolk Com'rs, 114 548. 300. Where a change of grade is part of the original construction of the way, the petition for damages for such change must be brought within one year, from the adoption of the order to lay out the way. Geraghty v. Boston, 120 416. 301. But where the change is made after the way is constructed, the petition must be filed under G. S., Ch. 44, § 19; P. S., Ch. 52, 8 15, •within one year after the completion of the work. Barker ». Taunton, 119 392; Cam- bridge v. Middlesex Com'rs, 125 529. 302. Irregularities in the proceedings in lay- ing out a street, do not affect a claim for dama- ges for change of grade. Ryan v. Boston, 118 248. 303. Nor does the fact that the claimant petitioned for the improvement. Barker v. Taunton, , 119 392 304. As to the sufficiency of the petition in such a case, see Wilbur «. Taunton, 123 522. 305. The county commissioners cannot legally issue a warrant for a jury, to estimate the dam- ges for raising or lowering a town way, with- out notice to the town. Brown v. Lowell, (8 Met.) 49 172. 306. In the city of Lowell, the application must be first made to the mayor and aldermen. Brown ». Low Jl, (8 Met.) 49 172. 307. Where the verdict of a jury is set aside, a new jury may be applied for, although the year has elapsed. Fall River P. Works v. Fall River, HO 428. 308. The provision, extending the time to the final determination of a suit, instituted within the year, embraces only a suit to which the ap- plicant is a party, or one in which the judg- ment binds all persons, like a judgment in rem. Shute v. Boston, 99 236. 309. That provision does not revive the right to apply for a jury, in favor of a petitioner for a certiorari, whose petition is filed after the time of applying for a jury has elapsed. Cambridge v. Middlesex Com'rs, 117 79. 310. Where a petition was seasonably filed, and the commissioners ordered a warrant to issue, but gave no notice thereof to the peti- tioner, who did not know of it till more than three months had elapsed, his proceedings hav- ing been delayed on the supposition that a re- location would be made; and after the lapse of the three months, the year having meanwhile elapsed, a new petition was filed; it was held that he could not maintain mandamus to compel the commissioners to issue a warrant. Thorndike v. Norfolk Com'rs, 117 566. 311. An objection to the form of the petition cannot be taken, after the warrant has been issued, and the verdict returned. Thayer v. Worcester Com'rs, (10 C.) 64 151. 312. A petition for a jury must contain a particular description of the petitioner's laiSd, and its relation to the way, and it must show injury; a petition upon discontinuing a town way is insufficient, if it does not show that the petitioner's land abutted on the way. Perry ®. Sherborn, (11 C.) 65 388. 313. But where a petition, upon laying out a way, alleges that a way was laid out across the petitioner's land, two rods wide, and that the land has been entered upon and taken, that suffiops Stone i). Heath, 135 561. 314. It is unnecessary to set forth in detail the elements of the damages claimed. Stone v. Heath, 135 561. 315. It is unnecessary that one, claiming title as a trustee, should describe himself as trustee in his petition. Hawkins ». Berkshire Com'rs, (2 A. ) 84 254. 316. The petition cannot be amended at the hearing before the sheriff's jury. Perry v. Sherborn, (11 0.) 65 388. 317. But the county commissioners may allow an amendment, at any time before the warrant issues. Winchester v. Middlesex Com'rs, 1 14 481. 318. And where the commissioners, at one meeting, adjudicated upon the necessity of two intersecting ways over the petitioner's land, and laid out one of them, and several months afterwards laid out the other; and the land owner, by mistake cf his counsel, obtained a warrant for a jury, which embraced only the land taken for the first way; but within a year from the laying out of the first way, he obtained a new warrant, embracing both ways; it was HIGHWAY, IV, (2), (3). 65? ieid that the issuing of the second wan-ant was Within the power of the comnussionere. Warners Franklin Co., l«sl #18. 319 The remedy of a land owner for dam- sees sustained by raising a highway, is against fte county, and the warrant must not he to assess damages against the town Stoughton v. Norfolk Com'rs, (5 G.) 71 372. 320 The warrant is sufficient, if it directs the sheriff to summons the jurors "according to law," without designating the county. Mitchell «. Bridgewater, (10 C.) 64 411. (3). Summoning the jurys trial; verdict, and return thereof. [By St. 1874, Ch. 372, §68; P. S.,Ch. .12, § 100, the Droceedings tor a revision by a jury, n the case of land taken for a railroad, are the same as upon the laying out of a highway. For numerous rulings in railroad cases, applicable to these proceedings, see Railroad, II, (o)i II, (6). For other rulings as to the powers, etc., of a jury upon a petition to revise the faying out, altering, etc., of a way, see ante. III, ffl.l 321. The jurors must he summoned, not by a constable, but by the sheriff or his deputy, or a Bpecial sheriff. Comm. «. Norfolk Sessions, 5 435. 322. The number is not restricted to twelve; l£e officer may summon more, to avoid resort- ing to talesmen. Comm. v. Middlesex. Sessions, 9 388. 323. A deputy sheriff, who is an inhabitant of .the town interested, cannot legally summon the jury. Merrill v. Berkshire, (11 P.) 28 269. As to where another deputy is interested, see Barre Turnpike v. Appleton, (2 P.) 19 430. 324. When the'sheriff is interested, the coro- ner may preside, although he is also a deputy sheriff. Wood v. Quincy, (11 C.) 65 487. 325. If selectmen apply for a jury without authority, an officer, who summons a jury under a warrant, may recover his fees and disburse- ments from them. Baker o. Thayer, (3 Met.) 44 312. 326. An objection to the interest of the deputy sheriff, who presides at the trial, may be waived by the attorney of record of the county, hut not by a commissioner, without the authority of the hoard. Meirill e. Berkshire, (11 P.) 28 269. 327. If the chairman of the board gives the venire for service to a deputy sheriff, who is an inhabitant of the town, knowing him to he such, and no objection is made at the trial, and the jury are left in his charge, the commission- ers cannot object to the verdict on account of his interest. Tripp ». Bristol Com'rs, (2 A.) 84 556. 338. Although the petition and warrant are wily to assess damages, the jury may extend the land owner's time to take off timber and trees. Dwight v. Springfield, (6 G.) 72 Vol. 1—83 329. But they cannot revise the commis- sioners' decision, as to whether a highway shall be laid out over, under, or on a line with, an intersecting railroad. Boston '& M. Railroad v. Middlesex Co., (1A.) 83 324. 330. Upon the trial, so much of the commis- sioners' record, as shows the establishment and description of the way, is admissible; and if the petitioners call for the whole record, they can- not afterwards object to it. Dwight v. Hampden Com'rs, (11 C.) 65 201. 331. The presiding officer is to decide ques- tions of evidence. Merrill v. Berkshire, (11 P.) 28 269. 332. The burden of proof is upon the peti- tioner, to show that the way is legally laid out, and to pr.ve all matters affecting his right to damages. Sexton v. North Bridgewater, 116 200; Blaisdell v. Winthrop, 118 138. 333. Before the statute provided for a new jury in case of disagreement, it was held that the town might, in such a case, have a new jury. Mendon v. Worcester Co., (10 P.) 27 235. 334. Two petitions for revision of the assess- ment of damages, one for taking land to widen a highway, and the other for altering the grade, may be tried together. Dickenson t>. Fitchburg, (13 G.) 79 546. 335. The sheriff, presiding at the trial, may leave the jury in charge of a deputy sheriff, while they deliberate on their verdict. Tripp *>. Bristol Com'rs, (2 A.) 84 556. 336. In construing the verdict of the jury, reference may be had to the petition, and the legal limitations of the jury's authority. Wilson v. Beverly, 1 03 136. 337. The jury may return that a party has sustained no damages. Comm. i>. Middlesex Sessions, 9 388. 338. And a verdict that he has sustained 1 damages, for which the jury allow him nothing, will he so construed. Chace v. Fall River, (2 A.) 84 533. 339. Under a warrant to assess damages by reason of the locating, laying out, and widening of a street, a verdict assessing damages, or find- ing no damages for the laying out, will be con- strued as covering the whole subject. Fowler v. Middlesex Com'rs, (6 A.) 88 92. 340. Under a warrant to assess damages to land of "A. B. and wife," damages cannot also he assessed for land of A. B. in his own Thayer e. Worcester Com'rs, (10 C.) 64 151. 341. Upon a petition for a jury to alter the commissioners' location of a highway, and if they should not alter it, to assess damages, if the jury cannot agree upon the location, they may assess the damages. Worcester Co. v. Leicester, (16 P.) 442. J 33 39. 658 HIGHWAY, IV, (3), (4). 342. The commissioners cannot object to a verdict, apportioning the damages among joint petitioners. Thayer v. Worcester Com'rs, (10 C.) 64 151. 343. The court may accept and affirm the verdict, as to one joint petitioner, and set it aside as to the other; and thereupon the com- missioners must grant to the latter a new jury. Anthony v. Btrkshire Com'rs, (14 P.) 31 189; Lanesborough v. Berkshire Com'rs, (22 P.) 39 278. See, also, Patton v. Springfield, 99 627. 344. An objection, that there was no such de- termination of damages by the selectmen or the mayor and aldermen, as to authorize the county commissioners to issue the warrant, must be taken before the latter; it is not available upon the question of the acceptance of the verdict. Flagg v. Worcester, (8 C.) 62 69. . 345. So, also, of the objection that the peti- tion was not presented in time. Wood v. Quincy, (11 C.) 65 487. 346. So, also, of the objection that more than a year had elapsed, after the selectmen's refusal, before the commissioners laid out a town way. Wood v. Quincy, (11 C.) 65 487. 347. The evidence upon which the jury are to act, is mainly to be derived from their own observation, and but few general rules of law can be applied. And upon doubtful questions of expenses of fencing, the verdict will not be re- jected. \ North Bridgewater Par. v. Plymouth, (8 0.) 62 475. 348. A verdict may be rejecteu for excessive Harding v. Medway, (10 Met.) 51 465. 349. An acceptance and affirmance of the verdict, without exception at the time, estab- lishes the regularity of all the previous proceed- ings, as to one who has given a recognizance for costs. Hamblin v. Barnstable Com'rs, (16 G.) 82 256. 350. A notice by the commissioners to such a party, to show cause why a warrant of distress should not issue, served by copy, as directed, is sufficient, although the copy was not attested. Hamblin v. Barnstable Com'rs, (16 G.) 82 256. 351. Upon an extension by the jury of the land owner's time to take off timber and trees, to a certain time after the acceptance of the verdict, the time is reckoned from the overrul- ing of exceptions, taken to such acceptance. Dwight e. Springfield, (6 G.) 72 442. 352. Where two warrants are issued, to assess damages for different ways, incurred by the same petitioner, the claims may be tried to- gether, and a separate verdict in each rendered. Warner v. Franklin Co., 131 348. See, also, Wyman «. Lexington, etc., Rail- road, (13 Met.) 54 316; Richardson v. Curtis, (2 C.) 56 341; Dickenson v. Fitchburg, (13 G.) 79 546. 353. An action will lie for damages awarded by a jury, for land taken for public purposes, only where a warrant for the collection thereof is not provided by statute. Gedney «. Tewksbury, 3 307; Bigelow v. Cambridge, etc., Turnpike, 7 202; Jeffrey v. Blue Hill Turnpike, 10 368; Comm. v. Boston & M. Railroad, (3 C.) 57 25 ; Russell Mills v. Plymouth Com'rs (16 G.) 82 347; Boston v. Robbing' 126 384. 354. For various rulings as to these proceed- ings, under the former statutes, now superseded by, or incorporated into, the statute, see Comm. i). Peters, 2 125; Comm. v. Westborough, 3 406; Comm. v. Blue Hill Turnpike, 5 420; Comm. ■». Norfolk Sessions, 5 435. [As to the costs of the proceedings, see Costs, U, (4.) Computation of damages. [See, also, Damages, IV, (5); Railroad, 11,(7). As to the evidence of the value of land, see Evi- dence, IX, (6).l 355. The damages to be allowed for land, taken for a way, is its value at the time of the taking, having regard to the uses to which it may probably be applied; not its value at the time of the trial. Parks «. Boston, (15 P.) 32 198; Dickenson ». Fitchburg, (13 G.) 79 546; Fairbanks v. Fitchburg, 110 224; Pit- kin v. Springfield, 112 509; Wood®. Bridge Com'rs, 122 394. 356. Fixtures in a building may be taken into account, in estimating the damages; so may the fact that the land was subject to an easement, or a cloud upon the title. Allen ». Boston, 137 319. 357. Where the land has been filled in before the taking, an instruction to the jury to appraise it, as land filled at the expense of the petitioner, is erroneous, as leaving room for a valuation, based upon its value before the filling, with the expense of the filling added. Squire t>. Somerville, 120 579. 358. Interest is to be allowed from the actual entry, in the absence of evidence of trouble and expense, or other loss by the proceedings before the entry. Edmands v. Boston, 108 535. 359. The "trouble and expense" for which, by G. S., Ch. 43, § 14; P. S., Ch. 49, § 14, a land owner whose land has not been entered may be indemnified, do not include vexation, annoyance, or uncertainty; but a resident else- where may recover for expenses and trouble in coming to the city, consulting counsel, and con- ferring with the mayor. Whitney «. Lynn, 122 338. 360. Where the order becomes void by failure to award damages, or to enter, within two years thereafter, the owner cannot have indemnity for his "trouble and expense." Drurya. Boston, .101 439. 361. A tenant in common cannot bind his co-tenants by an agreement with the commis- sioners as to the damages. Merrill v. Berkshire, (11 P.) 28 269. 362. In estimating the damages, the jury may regard their own experience and knowledge of HIGHWAY, IV, (4). 659 the subject; but if any juror knows any material fact he should disclose it and testify to it. ' Parks a Boston, (15 P.) 32 198. 363. Ill general, the diminution of value of the property, for the specific use for which the owner had designed it, is not regarded; but where land taken is held by a parish, solely for the site of a meeting house, the parish may re- cover damages for the diminution of value for that purpose; but not for the anticipated annoy- ance of worshippers on Sunday. Woburn Par. ft Middlesex Co., (7 G.) 73 106. 364. Damages may be allowed to a land owner for opening a water course, if that is necessary. Perley v. Chandler, 6 454. 365. Where a front wall is cut off, the ex- pense of a new wall should be allowed. Patterson ft Boston, (20 P.) 37 159. 366. Injury to personal property, or to the good will of the business of a lessee or other owner, is not to be considered. Edmands v. Boston, 108 535. 367. In an action by the lessee of a store against a city, for damages by widening a street, evidence that his sales were less, while the work was being done, is not admissible, unless it is connected with other evidence to show, that the diminution was caused by the work. Brooks v. Boston, (19 P.) 36 174. 368. In such an action, the plaintiff cannot recover for imaginary or speculative losses, in consequence of his customers leaving him, and file like. Patterson v. Boston, (20 P.) 37 159; Patterson ». Boston, (23 P.) 40 425; Ed- mands ». Boston, 108 535. 369. But he may recover the average rate of earnings, which a man in the same circumstances may be supposed temporarily to lose, in conse- quence of the interruption of his business, taking the season, etc., into consideration. Patterson «. Boston, (23 P.) 40 425. 370. A railroad company, whose track is crossed by the new highway, is entitled to dam- ages for the land taken, and for the expense of erecting and maintaining signs, cattle guards, and flooring; but not for an increased liability to accidents, or an increased expense of ringing .the bell, or a liability to be ordered to build a Midge. Old Colony, etc., Railroad v. Plymouth Co., (14 G.) 80 155. 371. And evidence of payments for accidents at crossings, and of comparative profits of travel over different sections of the road, is inad- mrssible. Boston & M. Railroad v. Middlesex Co., (1A.) 83 324. a rili't ^ owner of a house > on land subject to S.;f wa l- ? ft y recover the valu " of the Kn,™ v the house remain on the land, until of way W IeqU,red by the owner of th * ^S^ Tufts ft Charlestown, (4 G.) 70 537. str!It'„^ n ? Utt ? r ma y recov er, for widening a of fl.uS'ff 1 * lts F ade - besides th e value manl^ d taken - «* depreciation of the re- mamder, in view of all the circumstances; but we expense of particular improvements which he may see fit to adopt, such as moving further back, a house already 50 feet from the line. Chase «. Worcester, 108 60 See also, Boles 11. Boston, 136 398. 374. As to the true construction of an agree- ment with the mayor and aldermen, to relin- quish all damages for land in laying out a street, but not incidental damages for removing: and repairing buildings, see Poster v. Boston, (22 P.) 39 33. _ 375. See further, as to agreements on widen- ing streets. Crocket v. Boston, (5 C.) 59 182; Bell ii. Boston, 101 506. 376. Steps, projecting from a house into land taken for a highway, must be removed, and the expense of removal must be allowed as dam- ages; as to eave spouts and bay windows, the same rule holds, if they interfere with the public use. Hyde v. Middlesex Co., (2 G.) 68 267. 377. On the trial of a petition to assess dam- ages for land taken to widen streets in Boston under St. 1866, Ch. 174, if the judge does hot instruct the jury to assess them m the mode re- quired by the statute, the petitioner cannot maintain an exception, if the mode directed is as favorable to him. Edmands «. Boston, 108 535. 378. In estimating damages under that stat- ute, for taking part of a lot, the injury to the remainder is to be included. Edmands v. Boston, 108 535. See, also, Boston First Church v. Boston, (14 G.) 80 214. 379. No allowance should be made for an in- creased injury, by the claim of an adjoining proprietor to an easement of light and air, unless it is proved or admitted by the petitioner. Paine ft Boston, (4 A.) 86 168. 380. The owner of part of a building can recover for loss of support and shelter, by re- moving, from the location of the highway, the part which he does not own. Marsden «. Cambridge, 1 14 490. 381. The testimony of the owner of a right of way over the petitioner's land, as to the sum for which he could have sold his right, if no way had been laid out, is inadmissible. Tufts ». Charlestown, (4 G.) 70 537. 382. An easement is to be valued only to the extent of the legal rights created thereby; and evidence of the extension thereof, by custom or tacit acquiesence, is immaterial upon the question of damages. Boston & M. Railroad v. Middlesex Co., (1 A.) 83 324. 383. The jury, in estimating damages, cannot take into consideration the petitioner's liability to assessment under the betterments act. Sexton «. North Bridgewater, 116 200. Change of level. 384. .The damages for laying out a highway, below the level of the petitioner's house and 660 HIGHWAY, IV, (4), (5). land, are not confined to the loss of lateral sup- port for the soil, but include all damages to the artshorn v. Worcester Co., 113 property 111. 385-. Damages for laying out a street are to be assessed so as to include damages for a change of surface, caused by its original construction. Hartshorn v. "Worcester Co., 113 111; Murphy B.Boston, 120 419. See, also, Ryan v. Boston, 118 248; Barker v. Taunton, 119 392; Geraghty v. Boston, 120 416. 386. Aliter, before the R. S. Callender v. Marsh, (1 P.) 18 418; Brown v. Lowell, (8 Met.) 49 172. 387. As to the items of damages allowable, for adapting the property to the new level, see the foregoing cases, and Hubbard*. "Webster, 118 599; Buell «. Worcester Co., 119 372; Bemis «. Springfield, 122 110. 388. The damages, for widening or altering a street, include damages for raising the level of the sidewalk, if that is part of the actual work of widening. Fall River P. Works v. Pall River, 1 lO 428. 389. But the owner of land is not entitled to damages, for raising or lowering the way, until the act is done. Brown «. Lowell. (8 Met.) 49 172; Snow ■». Provincetown, 109 123. 390. Where an order of selectmen, widening a street is accepted by the town, and a subse- quent orJer is made, changing the grade, the latter is a new and independent proceeding, for which a land owner is entitled to additional damages. Lane v. Boston, 125 519. 391. Where the report of the location of a street refers to a plan on file, showing, on a horizontal scale, the boundaries of the street, and on a vertical scale, two grade lines, with figures denoting their heights, this establishes the grade line by reference 10 the plan; and oral testimony is admissible, to show that the grade was raised no higher; so that the year for filing a petition runs from the original laying out. Brady v. Pall River, 121 262. 392. Upon the trial of the petition, where it appears that a portion of the petitioner's land had been taken by a railroad corporation, it is erroneous to instruct the jury, that the only effect of the location of the railroad, was to give the corporation the right to take and use the land, for the purposes of its road, by paying damages therefor, without also instructing them, that the petitioner had a right to damages for what was taken by the location, as soon as it was made. Bemis v. Springfield, 122 110. 393. Fencing is a proper item of damages, and evidence of the cost thereof is admissible. Comm. v. Norfolk Sessions, 5 435; Stone v. Heath, 135 561. 394. Evidence of the amount of damages paid to the petitioner, because of a change of grade in another highway, on which it also abutted, is inadmissible, although witnesses tes- tify, that they cannot separate in their minds the damages by cutting down one street, from those by cutting down the other. Bemis ®. Springfield, 122 110. 395. For other rulings, upon questions of evidence of damages, upon a change of level. Hubbard v. Webster, 118 599; Buell v. Worcester Co., 119 372; Barker v. Taunton, 119 392. Leased property. 396. Where the front wall of a building, leased for three years, with a covenant to repair, and to leave the premises in good repair at the end of the term, was cut off by the widening of a street in Boston, this did not put an end to the lease, or release the lessee from his covenant to. repair. Patterson v. Boston, (20 P.) 37 159. 397. But the lessee, or if he declined, the lessor, had a right to rebuild the wall, and the expense of so doing is a proper item of the damages. Patterson «. Boston, (20 P.) 37 159. 398. Whether the lessee built the wall, or paid the lessor for building it, does not affect his claim against the city, unless the lessor built it, and was compensated therefor by the city. Patterson v. Boston, (20 P.) 37 159. 399. The damages sustained by the lessee, for being deprived of the use of the store, are to be computed for such time as is reasonably necessary to remove his goods, make the repairs, and move in again, not the rent and taxes spe- cifically. Patterson v. Boston, (20 P.) 37 159. 400. He is also entitled to remuneration for the diminished value of the property, caused by taking a part of it, for the residue of the term; but, semble, not for loss of custom, in consequence of being obliged to occupy a less advantageous building. Patterson v. Boston, (20 P.) 37 159. 401. Where all the property is taken, the market value of the lease, that is, between one wishing to buy and one wishing to sell, is the value to be allowed to the" lessee, without regard to peculiar circumstances, rendering the lease of greater value to the lessee, or any value which the property may have, other than its market value. Lawrence v. Boston, 119 126. [For additional rulings upon this subject generally, and upon the provision lor payment of the entire damages to a trustee, see ante, IV, (l).l (5.) Offset for benefits. [See, also, Railroad, n, (7).] 402. Upon an assessment of damages for taking land for a way, the value of the direct benefit to the petitioner's remaining land must be deducted. _ , Green v. Fall River, 113 262; Wood. HIGHWAY, IV, (5), (6). 661 « Hudson, 114 513; Hilbourne v. SuffolkCo., 120 393. See, also, Comm. « Coombs, 2 489; Comm. v. Norfolk 5 435. 403 Any direct and peculiar benefit or in- crease of value, accruing to land of the same owner, forming part of the parcel taken, is to fce allowed by Way of set off; but not the general benefit or increase of value received by such land, in common with other lands in the same neighborhood. The only set off allowed is the special and direct benefit, arising from the position of the land itself, upon the way laid out, altered, or widened. Hilbourne v. Suffolk Co., 120 393. See, also, Meacham v. Pitchburg Railroad, (4 0.) 58 291; Upton v. South Reading B. K. R., (8 C.) 62 600; Farwell v. Cambridge, (11 G.) 77 413; Dickenson «. Fitchburg, (13 G.) 79 546; Whitman «. Boston & M. R. R., (3 A.) 85 133; Allen v. Charlestown, 109 243; Upham v. Worcester, 113 97; Parks v. Hamp- den, 120 395; Williams v. Taunton, 125 34; Donovan v. Springfield, 125 371; Cross «. Plymouth Co., 125 557. 404. The legislature may const'tutionally provide, that the damages shall include the value of the whole of the buildings on the land, deducting the value of the materials, and ■of the buildings, if any, which will remain. Dorgan v. Boston, (12 A.) 94 223. 405. The deduction for benefits may be made against the objection of the respondents, who propose afterwards to assess the estate for betterments. Green v. Pall River, 1 13 262. 406. If the laying out of the way has left the petitioner's estate of greater market value, than it was before, and this benefit is not common to the petitioner and other neighboring land owners, it is to be set off. This question is for the jury. Sexton v. No. Bridgewater, 1 16 200. 407. The benefit by the land being made into a corner lot may be deducted, although other neighboring lands are benefited by the increased facilities afforded by the way. Whitney v. Boston. 98 312. 408. In assessing damages to a railroad cor- poration, by locating a highway across its track, a supposed benefit, by an increase of travel on the railroad, cannot be set off. Old Colony & P. R. Railroad v. Plymouth Co., (14 G.) 80 155; Boston & M. Rail- road v. Middlesex Co., (1 A.) 83 324. 409. Evidence that the owner agreed to re- lease ail damages, if certain alterations were made, is admissible to show that his land would fl2,T e benefit from the alterations, al- S^I Were notmade m actual accord- ance with the agreement. Chase e. Worcester, 108 60. lJ 1 l? 7i £ enM , that land > taken for a highway, toX ■ bee ? laid out as a sidewalk, ii inaa- 2f '"reduction of damages; but evidence « admissible that, where it wis taken, such an "nprovernent would probably be made. i>ickenson». Pitchburg, (13 G.) 79 546. (6.) Assessment for betterments, 411. The betterments statute, St. 1871, Ch. 382; P. S., Ch. 51, did not repeal G. S., Ch. 43, § 16; P. S., Ch. 49, § 16, as to allowing bene- fits by way of set off against damages. Green v. Pall River, 113 262; Sexton 1>. North Bridgewater, 1 16 200. 412. Before the enactment of St. 1874, Ch. 275, § 2; P. S., Ch. 49, § 93, providing that a highway or town way shall be deemed to have been laid out under the highway act, unless the order laying it out expressly declares that it is laid out under the betterments act, the question, whether the proceedings were under the former or the latter statute, was a question of fact; and if a ruling was correct under one, and not under the other, the supreme judicial court would pre- sume, that the court below had found that the proceeding was under the act, which would make it correct. Allen v. Charlestown, 109 243; God- bold e. Chelsea, 111 294; Sexton v. North Bridgewater, 116 200; Ryan v. Boston, 118 248. 413. The statute of 1874 applied to a case, wherein the final order was made after it took ' Puller «. Springfield, 123 289. 414. The betterments statutes do not permit the set off of benefits in estimating a land owner's damages, by taking part of his land for widening a street. Godbold v. Chelsea, 111 294; Ban- croft n. Boston, 115 377. 415. They are constitutional. Parks v. Boston, (8 P.) 25 218; Dor- gan ii. Boston, (12 A.) 94 223; Jones v. Boston, 104 461. 416. An order of the board of aldermen, re- ducing the amount of assessment for a better- ment, is not a new assessment. Blake n. Baker, 1 15 188. 417. The statute does not authorize the assess- ment of a betterment tax for a street widening, ordered before its enactment. Lockwood ». Charlestown, 114 416; Bigelow v. Boston, 123 50. 418. On a petition by land owners for a jury to revise a betterment assessment, where the city took the land for a way, and adjudicated no damages, and the land owners made no ap- plication for a jury within the year, but, before the year elapsed, on their petition, the common council voted to pay them, on receiving a deed, ' a sum recommended by the committee, and which had been included in the assessment, this sum cannot be included in the assessment. Puller v. Somerville, 136 556. 419. The statute does not apply to the locat- ing anew of a highway by the county commis- sioners. Tufts v. Somerville, 122 273. 420. The record of the proceedings must show the amount of the expense of laying out or altering the way, as well as of the assessment; but the defect may be cured by an amendment of the record. Chase v. Springfield, 119 556. 662 HIGHWAY, IV, (6); V, (1). 421. The want of railings or barriers, for the safety of public travel, d^es not prevent the assessment of a betterment. Whiting v. Boston, 106 89; Chase v. Springfield, 119 556. 432. The assessment must be laid within two years from the passage of the order to grade, lay out, alter, or discontinue. Hitchcock v. Springfield, 121 382. 423. See, as to the invalidity of successive assessments, and the insufficiency of the pro- ceedings upon successive alterations, etc., Hitchcock v. Springfield, 121 382. 424. An assessment of betterments is valid, although made to one who is neither the owner nor the occupant. Smith v. Carney, 127 179. 425. The benefit to land, caused by the widening of a street, is to be assessed according to its value at the time of the widening. Treadwell v. Boston, 123 23. 426. And the question is as to the benefit caused by the entire work, not that resulting from a particular part of it. Alden «. Springfield, 121 27. 427. The petitioner for a revision cannot introduce evidence to show the proportion of the benefit to his lar.d, and that of the other abutters on the way, as compared with the benefit of property generally in the city. Alden «. Springfield, 121 27. , 428. But evidence, that corner land may best be used for frontage on the street not widened, is competent. Treadwell v. Boston, 123 23 439. Evidence of injury, by the obstruction of the street during the widening, is inadmis- sible. Treadwell e. Boston, 123 23. 430. Or that the order was to collect twelve per cent interest, where that error was not assigned. Chase v. Springfield, 1 19 556. 431. It is no ground for a certiorari, that the record does not show that a grade line established. Chase v. Springfield, 119 556. 432. Or that houses of religious worship were omitted from the assessment, where it does not affirmatively appear, that there were any such houses liable to assessment. Worcester Ag. Soc. v. Worcester, 116 189. 433. The assessment may be made, if the work of grading has been substantially com- pleted, although a small part, ex. gr., a portion of the sidewalk, remains to be done, the delay in doing it being merely iemporary. Lincoln ». Worcester, 122 119. 434. Klmg a petition to abate a betterment assessment does not prevent a certiorari to test its legality. Dickinson v. Springfield, 121 382. 435. But the legality of the assessment can- not be inquired into upon the petition. Crandell v. Taunton, 1 lO 421. 436. A bill in equity will not lie to restrain s city from selling land under an illegal better- ment assessment; the remedy is at law. Hunnewell v. Charlestown, 106 850: Norton v. Boston, 119 194. 437. Where a petitioner to revise an assess- ment dies, pending the proceedings, devising different portions of the land to different per- sons, all the devisees may join in prosecuting the petition. Crandell c. Taunton, 110 421. 438. Upon a petition to revise a betterment assessment, the burden is upon the petitioner to show that it is excessive. Bigelow v. Boston, 120 326. 439. Evidence is not admissible to show, that the amount of benefit, peculiar to the estate, was deducted from the damages awarded, when the land was taken. Upham ». Worcester, 113 97. 440. The former betterments acts, St. 1866, Ch. 174, relating to Boston, extended to all the cities of the Commonwealth by St. 1868, Ch. 75, and amended by St. 1868, Ch. 276, were repealed by St. 1871, Ch. 382, § 11. The fol- lowing cases, which arose under those statutes, are partly applicable, under the existing statute. Jones v. Boston, 104 461; Gardner v. Boston, 106 549; Chase «. Worcester 108 60; Prince v. Boston, 111 226; Lockwood i>. Charlestown, 114 416; Bancroft «. Boston, 115 377; Blackie «. Hudson, 117 181. 441. For rullings relating to betterments under St. 1865, Ch. 159, relating to the exten- sion of Milk street, Boston, see WhiLing «. Boston, 106 89; Boston Seamen's F. Soc. v. Boston, 116 181. 442. As to judgment upon a writ of error, brought to review a judgment upon the verdict of a jury in a betterment ca e, see Somerville v. Piske, 137 91. V. Construction; Repairs; Obstructions. (1.) Construction generally. ISee, also. Bridge, II, (1). As to contracts by towns to build roads, see Town and Cur, III, &).\ 443. Where county commissioners, after lay- ing out a way, decide that, by reason of the opening of a new way, or for any other reason satisfactory to them, the public convenience and necessity do not require the construction of the way, and rescind their adjudication, the court will not compel them to construct it by mandamus, nor will certiorari lie to reverse their decision. Hill «. Worcester Com'rs, (4 G.) 70 414; Thorpe v. Worcester Com'rs, (9, G.) 75 57; Hitchcock v. Hampden Com'rs, 131 519. 444. But in the absence of such a rescission if the town neglects to construct a highway ordered by the commissioners, it is their duty to complete it, and they may be compelled to do so by mandamus. Richards v. Bristol Com'rs, 120 401 HIGHWAY, V, (1), (2). 663 TAs to the land owners' Damages, In case the road fe not completed, see ante, IV, (1).] 445 If county commissioners, after notice of the pendency of a petition for a certiorari, for errors alleged in their previous proceedings, proceed to construct the road, they do so at their peril; and if the proceedings are set aside, a tax for the expenses is illegal. Ms parte Adams, (10 P.) 2 7 273. 446. Where county commissioners make a highway in two adjoining towns, at the expense of the the county, they must, in order to appor- tion the expenses, determine the line between those towns; but they need not establish any monuments, to indicate where they fix it. Mcparte Ipswich, (13 P.) 30 431. 447. A statute directing the commissioners, if tne town does not complete a road, in the time and manner prescribed by them, to cause it to he completed, and to order payment of the expenses, at their next regular meeting, out of the county treasury, is so far directory, that if the proceedings cannot be taken at the next regular meeting, or if they are quashed, new proceedings may be taken afterwards. Me parte Ipswich, (13 P.) 30 431. 448. A warrant upon the county treasurer, for the payment of a sum due for constructing a road, may be drawn by the commissioners, at other times than at their stated meetings; and a demand therefor may be made accordingly. Hull s. Berkshire, (9 P.) 26 553. 449. Under the former statutes, commission- ers of highways might make a contract to con- struct a road, before making a return to the court of sessions; and such a contract was well made through their chairman. Expwte New Salem, (6 P.) 23 470. 450. Under the former statute, the accept- ance of the commissioners was conclusive, as to the sufficiency of the road. Rice v. Middlesex Com'rs, (13 P.) 30 225. 451. If the specifications of the commission- ers as to the grade are not complied with, the road is not sufficient, although it may be built in other respects as specified. . Reed e. Scituate, (5 A.) 87 120. 452. As to enforcing the completion, where part of a town is set off from the county, and annexed to another county, after the road was ordered to be constructed, see Norwich v. Hampden Com'rs, (4 G.) 70 172. 453. Where the commissioners, having laid out a highway, ordered the town to build an embankment, to facilitate the building, main- tenance, and future repairs, taut which was not » Part of the highway, it was held, that the town had no authority to build the embank- ment, and was not liable to the owner of land injured thereby. Anthony «. Adams, (1 Met.) 42, 284. V/P" ^ere a town way has been regularly Zm Z. y v* e seleotmen . and approved by the rawn, the highway officers are not trespassers m working it, although the year to revise the proceedings has not elapsed. But quere, as to ram^' notice of an application for that Craigie v. Mellen, 6 7. 455. After a highway has been regularly laid out, and a time fixed for its completion, and it is subsequently actually opened, the public using it have the right to presume that every- thing has been done, necessary to make it a pub- lic highway. Drury v. "Worcester, (21 P.) 38 44. 456. After the county commissioners have located a town way, and made their return, and have passed orders requiring the town to com- plete it, but allowing the owner to remove all property, not needed for the construction, it was held, that before actual construction, the owner could maintain trespass against one, who broke down his fences to pass over it. Loker «. Damon, (17 P.) 34 284. 457. Semble, that the town could not break down the fences, before the time fixed by the commissioners, if there were growing crops in, the soil, which needed their protection. Loker v. Damon, (17 P.) 34 284. 458. As to laying out and constructing streets in South Boston, under St. 1803, Ch. Ill, an- nexing South Boston to Boston, see Comm. v. Boston, (16 P.) 33 442. 459. A location once made cannot be waived, except by a legal discontinuance. Harrington v. Berkshire Com'rs, (22 P.) 39 263; Loring e. Boston, (12 G.) 78 209. 460. An entry upon any part of the lands, embraced in the location or alteration, within two years, satisfies the statute requiring an en- try within that time, with respect to all the lands. Poor v. Blake, 123 543. 461. The statute requiring payment of dam- ages, within two years after the location, gives no right to avoid the location to any one, but an owner of the land, over which the way is located. Pickford v. Lynn, 98 491. 462. Before St. 1869, Ch. 303; P. S., Ch. 49, 8 88, it was held, that a city was liable to an indictment, but not to an injunction for delay in completing a street. Nichols «. Salem, (14 G.) SO 490. (2.) Sidewalks. 463. A statute authorizing an assessment by the city authorities, upon the owner of a build- ing in a city, for the expense of a sidewalk in front of his building, is constitutional, although it does not provide for a jury trial. Lowell v. Hadley, (8 Met.) 49 180; Howe v. Cambridge, 114 388; Chapin v. Worcester, 124 464. 464. Where a statute authorizes a city to con- struct permanent sidewalks, and provides that after their construction, they shall be main- tained by the city; a plank sidewalk, the ex- pense of which was assessed upon the owner, although it was never accepted, satisl'es the statute; and if the city, eleven years afterwards, replaces it with one of stone, the expense can- not be assessed upon the owner. Lowell v. French, (6 C.) 60 223. 664 HIGHWAY, V, (2), (3). 465. If the order of the city council requires the sidewalk to be built on the side of a street, an assessment for building one four feet from the side cannot be enforced. Lowell v. Wheelock, (11 C.) 65 391. 466. See, however, for a case where an assess- ment was enforced, although the sidewalk was not constructed strictly according to the ordi- nance, Lowell v. Hadley, (8 Met.) 49 180. 467. An action will not lie to recover a side- walk assessment, under G. S., Oh. 45, § 7; P. S., Ch 50, § 20; the only remedy is the enforce- ment of the statutory lien. West Roxbury «. Minot, 1 14 546. 468. Under a statute authorizing the mayor and aldermen of a city to construct sidewalks, and assess the expenses, they have no right to join, in one assessment, the expense of con- structing sidewalks in different streets. Arnold ». Cambridge, 106 352. 469. As to the sufficiency of a notice to an abutter, under a statute, allowing the city au- thorities to build a sidewalk, and assess the ex- pense, if the abutter fails to do so, after notice, see ' Tufts v. Charlestown, 98 583. 470. As to the construction and effect of pro- visions relating to sidewalks, in particular city charters, and of particular ordinances passed pursuant thereto, see Lowell ». Hadley, (8 Met.) 49 180 Lowell «i. Wentworth, (6 C.) 60 221 Lowell v. Wheelock, (11 C.) 65 391 Lowell v. Wyman, (12 C.) 66 273 Charlestown a. Stone, (15 G.) 81 40: Chapin it. Worcester, 124 464; Dick- inson v. Worcester, 138 555. 471. An . assessment upon a lot owner, for building a sidewalk in front of his lot, is not necessarily unjust and disproportionate, because the rate per linear foot is greater than that of an adjoining lot. Dickinson v. Worcester, 138 555. (3.) Repairs. [See, also. Bridge, II, (2); and post, VI. As to the powers, duties, and liabilities, of surveyors of highways. Bee post, VII-I 472. The duty of repairing highways is enjoined upon the towns wholly by statute, and an indictment for failure to do so should conclude contra formam statuti. Comm. v. Springfield, 7 9. 473. Upon the laying out of a turnpike as a highway, by county commissioners, the town is not bound by law, or by any previous agree- ment of the turnpike company, to keep in repair the private way of an individual passing under it. Baker v. Dedham, (16 G.) 82 393. 474. Nor will payment by a town for such repairs bind it to keep the way in repair there- ' Baker v. Dedham (16 G.) 82 393. 475. A contract between a city, about to pave a street, and abutters thereupon, that if the city would leave standing a row of trees, and put curbstones around them, the abutters would pay the cost of the curbstones, is legal, and binds the abutterrs. Springfield «. Harris, 107 532. 476. Under St. 1869, Ch. 237, § 1; P. S., Ch. 49, § 99, any earth, gravel, or stones, suitable for construction or repairs of a street or way, and capable of being removed by ordinary excavation, may be taken. Hatch v. Hawkes, 126 177. 477. And if the selectmen, under that statute, lay out land for a gravel and clay pit, and the owner, upon proceedings,- before the county commissioners, for the assessment of the damages, offers in evidence a claim for stones taken from the land, which is excluded, and he obtains judgment against the town for " gravel " only, which is satisfied, he cannot afterwards maintain an action against the sur- veyor for the conversion of the stones, which were used in the repair of the highway. Hatch v. Hawkes, 126 177. 478. Such a person, having_ accepted the indemnity, cannot afterwards insist upon any informality in the proceedings. Hatch 0. Hawkes, 126 177. 479. St. 1861, Ch. 107, amending the charter of Lynn, as to laying out, altering, or discon- tinuing streets or highways, does not apply to a case, where damages are sustained by repair- ing a highway or town way; and a person, whose property is injured by such repairing, may proceed under the general highway law. Thurston «. Lynn, 116 544. 480. The right to maintain water pipes under a highway, gives no claim for compensation or damages, by reason of raising the grade of the highway. Jamaica P. Aqueduct ». Brookline, 121 5. 481. A petition for a jury to assess damages, by the alteration in the grade of a highway, pursuant to the order of a city council, having authority to do so, may be maintained under G. S., Ch. 43; P. S., Ch. 49. Bemis . Truro, 135 263. 492. Where selectmen make a contract for repairs, without express authority, it is not binding, although the person who has contract- ed with the town has refused to fulfil his con- tract, and the roads are out of repair. Clark v. Russell, 116 455. 493. An order of a city council, accepting a new grade established by the city surveyor, is an order for specific repairs, within the statute, as to filing a petition for a jury. IE Sisson®. New Bedford, 137 255. ii.) Obstructions. fcE e ?!, ? ! ls0 'J !f0I8ANC!B ' L -As to obstructing- a way ™ ™rS°*?< Be S Railroad, IV, (6). As to thepow- «S„5-„ utles of highway officers in removing ob- KS 8ee - also > PS«, VII. For many parallel or analogous cases, see post, VI.] 494. The power, conferred by statute upon a justice of the peace, to order the removal of ob- structions upon town ways or statutory private ways, is not judicial, and the sheriff is not re- quirett to execute it; and consequently any acts uone Dy the deputy, in execution thereof, are his Pwate acts, for which the sheriff is not respon- Davis «. Smith, 130 113. ow 5 ' £ town is k oun d to provide against an lODstructaon caused by snow or ice; and the sur- veyors powers and duties are the same with re- VOL. 1—84 spect to that, as with respect to any other obstruction. Loker i>. Brookline, (13 P.) 30 343. 496. A manufacturing corporation, which lays out a street over its own land for the use of its operatives, is not liable for injury to an oper- ative, in consequence of ice in the street. Palmer ». Lawrence M. Co., (12 A.) 94 69. (See, also, post, art. 505.] 497. The decision of highway surveyors, that any thing in a highway constitutes an obstruc- tion, is conclusive, and evidence of bad faith in the surveyors in so deciding is inadmissible. Bay State Brick Co. v. Foster, 115 431; Morrisons. Howe, 120 565. 498. The fact that rails of a private railroad were placed in the highway, by permission of the town authorities, does not prevent the sur- veyors from removing them. Bay State Brick Co. v. Foster, 115 431. 499. The surveyors may remove a building which temporarily obstructs a highway; and in determining whether the mode of removal, by taking it to pieces, was reasonable, the jury are to comider that the party had no right to have the building there. Morrison v. Howe, 120 565. 500. Under an order of the surveyor of high- ways in a city, the chief of police may lawfully remove an awning over the sidewalk. Heald v. Lang, 98 581. 591. One obstructing the highway is indict- able, whether any person is injured or not; but an individual suing must show special dam- age thereby, to which his own negligence did not contribute. Smith v. Smith,- (2 P.) 19 621. 502. A private corporation is liable to an action by a traveller, for injury from an obstruc- tion, maintained by it in the highway, although it was done extra vires, Taylor v. Boston "Water P. Co., (12 G.) 78 415. 503. An action does not lie against one who removes a fence, separating a highway from a creek, at a place over which he has a right to pass, although he does so for the purpose of fillingupthe creek, and thus creating a nuisance. Harvard College v. Stearns, (15 G.) 81 1. 504. Persons playing a game of ball in a highway are jointly liable to a passer-by who is struck with the ball, if, in view of the width of the highway, and other attending circum- stances, the game was likely to endanger the safety of passers upon the highway. Vosburgh v. Moak, (1 C.) 55 453. 505. The owner of a building is liable for injuries, by obstructions created by him, upon the adjoining sidewalk, but not for injuries by defects therein, or accumulations of snow and ice, although the city ordinances require him to keep it clear and in repair. Kirby v. Boylston M. Assoc'n, (14 G.) SO 249. 506. A sled and tubs, left in the highway near an outbuilding, into which the owner in- tended to place the contents of the tubs, are or 666 HIGHWAY, V, (4); VI, (1). are not a nuisance, which renders the party liable to one, whose horse took fright at them, according to the extent of travel, etc. ; but not according to his and his neighbors' custom to leave such things in the highway. Judd v. Fargo, 107 264. , 507. The owner of land, leased on shares, cannot maintain an action for an obstruction of a town way leading thereto, unless he shows an injury to bis reversionary interest. Geer v. Fleming, 110 39. 508. A town or a city may recover from individual, who has created or maintained an obstruction in the highway, such damages as it has been compelled to pay a person, for an injury received to his person or property, in consequence of the obstruction, irrespectively of the town's diligence or negligence in not re- moving it. Swansey e. Chace, (16 G.) 82 303; Woburn v. Boston & L. Railroad, 109 283. See, also, Lowell v. Boston & L. Railroad, (23 P.) 40 24; Lowell v. Short, (4 C.) 58 275; Boston «. Worth- ington, (10 G.) 76 496; Milford ». Hol- brook, (9 A.) 91 17; Woburn v. Hen- shaw, 101 193; "West Boylston v. Mason, 102 341. 509. And a town or a city, which notifies such an individual of the action, and requests him to defend it, can also recover its reasonable ex- penses, including counsel fees, in defending the action, otherwise it cannot. Westfleld s. Mayo, 122 100. And see Lowell v. Boston & L. Railroad, (23 P. ) 40 24; Lowell e. Short, (4 C.) 58 275. 510 As to the sufficiency of such a notice, see Boston v. Worthington, (10 G.) 76 496; Milford v. Holbrook, (9 A.) 91 17; Westfield .v. Mayo, 422 100. 511 The use, by an adjoining land owner, of two pieces of timber which have long lain in the highway, by placing posts on the portions Of them nearest his fence, is evidence of his maintaining the obstruction, which will sustain a verdict against him in such an action. Stoughton v. Porter, (13 A.) 95 191. 512. The verdict and judgment against the city are conclusive evidence, in an action against a tenant, who has been duly notified of the former action, and had an opportunity to fur- nish evidence, and in fact testified, of the defect, that the person injured was using due care, and of the amount of the injury; but not of his liability to repair, or of his neglect to repair, or that his neglect was the sole cause of the injury. Boston t>. Worthington, (10 G.) 76 496. 513. Where the defect is in a cellar way in the sidewalk, the landlord of the building, which is leased to a tenant, who is in occupa- tion thereof, is not liable to the city, unless there is a covenant on his part to repair; in which case he is so liable, to avoid a circuity of actions. Lowell v. Spaulding, (4 C.) 58 277 514. A voluntary payment to the person in- jured may be recovered by the town, if it is reasonable, and the town gave notice before the payment, to the person liable over to it. Swansey v. Chace, (16 G.) 82 303. 515. A sidewalk, built by a person in front of his land, and bounded by trees, posts, and stones, but not parallel with his line, so that it touches the line at one end, and is eight feet into the road at another, is not necessarily an illegal obstruction. Upon an indictment therefor, it is for the jury to say whether its construction is reasonable. Comm. «. Franklin, 133 569. See, also, Appleton «. Nantucket, 121 161, 516. Steps, projecting from a house into the street, are a nuisance, the maintenance of which, for any time less than forty years, does not bar an indictment therefor. Comm. v. Blaisdell, 107 234. 517. So where an incumbrance in a highway has been removed for forty years, it cannot be rculj-icccl Comm. v. Belding, (13 Met.) 54 10. The owner-, of a building, which the county commissioners, on relocating a highway, have expressly allowed to remain therein, is not in- dictable for maintaining a nuisance, until he has had notice to remove it. Comm. «. Noxon, 121 42. 518. The statute has not altered or repealed the common law, as to nuisances in a highway. Comm. e. King, (13 Met.) 54 115. 519. An indictment for placing and continu- ing stones in a highway, is not within the statute, as to the removal of a fence within the highway, although the proof shows that they constitute a wall. Comm. t>. King, (13 Met.) 54 115. 520. It is an indictable common law offence to obstruct a highway, although the obstruction is not within that part of it, which can safely be used for travel. Comm. v. King, (13 Met.) 54 115. See, also, Comm. ». Wilkinson, (16 P.) 33 175. 521. An indictment lies, for erecting a fence in a town way, duly laid out. Comm. v. Gowen, 7 378. 522. It is no excuse, and no defence to an in- dictment for obstructing a way, that the de- fendant opened a new and convenient way on his own land, which was used for seven years, and until a bridge thereon was swept away by Comm. v. Belding, (13 Met.) 54 10. 523. The refusal of a city to fulfil its agree- ment with an abutter, to set back the fence, and grade the land, in consideration of a release of damages for widening a street, is no defence to an indictment of the abutter's agent, for re- storing the fence to its former position, where it obstructs the street, although the abutter was an infant and a married woman, when the re- lease was given. Comm. v. Smyth, (14 G.) 80 33 VI. Action against a City oh Town fob an Injury from Defect. O.) The place where the Injury oc- curred. 524. A town is responsible for an injury from a defect in the highway, from the time when it is opened for public travel. HIGHWAY, VI, (1). 667 Bliss o. Deerfield, (13 P.) 30 102; Drury *■ Worcester, (21 P.) 38 44. 525 It is no defence, that the part where the injury occurred, was originally wrought for the accommodation of the abutters. Kellogg «. Northampton, (8 G.) 74 504. 526. If actually completed, according to the commissioners' directions and the contracts of the town, and the selectmen refuse to accept and open it, whereupon the contractors open it, and the public use it, the town is responsible. Drury ». Worcester, (21 P.) 38 44. See, also, Bliss v. Deerfield, (13 P.) 30 102. 527. Evidence that repairs were made on the road by the town, within six years before the injury, is competent upon the question of its liability, although the record of the laying out is insufficient; hut evidence of a vote to make repairs, no repairs having been actually made until after the accident, is not competent evidence of the location. Hayden v. Attleborough, (7 6.) 73 338; Brown v. Lawrence, 120 1. See, also, Stockwell s. Fitchburg, 110 305. 528. Where a highway is located anew, sub- stantially over the old location, with changes in grade and width, and the town is ordered to make the changes in a certain time; and while the work was in progress, a traveller in the nighttime, without notice that the way was impassable, was injured by a defect within the old location; it was held, that the old highway was not discontinued, and the town was liable, if suitable harriers were not erected, which question was for the jury. Howard v. Mendon, 117 585. 529. A city is liable for an injury occurring from a defect on a grassed space, between the sidewalk and the carriage way, over which a foot path has been worn, in the absence of any other provision for crossing the street there, or anything to indicte that the path is unsafe or unsuitable. Aston v. Newton, 134 507. 530. See, further, as to the liability of a town or city for injuries by defects in a foot path, Oliver v. Worcester, 102 489; Stock- well v. Fitchburg, 110 305; Whitford «. Southbridge, 119 564; Sullivan *. Boston, 126 540; Clark v. Waltham, 128 567; Lowe v. Clinton, 136 24; and, as to sidewalks, post, arts. 552 to 555. 531. Where a highway is relocated, and be- tween the relocated highway and a row of buildings is a strip of land, the use of this strip pytne public for twenty years does not make it a highway, for defects in which the town is liable, unless the use has been since the reloca- tion. Stockwell ii. Fitchburg, 110 305. 532. A town is bound to erect barriers or mailings, to guard travellers against injury from jtaangerous place, in close rjroximity to the Puffer ». Orange, 122 389; Harris £ Newbury, 128 321. See, also, numers. Andover, (2C.) 56 600; Col- lins e. Dorchester, (6 C.) 60 396; Hay- aen «. Attleborough, (7 G.) 73 338; Alger v. Lowell, (3 A.) 85 402; Stevens 1). Boxford, (10 A.) 92 25; Burnham v. Boston, (10 A.) 92 290; Babson v. Rockport, 101 93; Britton «. Cum- mington, 107 347. 533. But it is not bound to do so to prevent travellers from straying from the highway, although there is a dangerous place at a short distance, which they may reach by so straying. Puffer 1). Orange, 122 389; Barnes t>. Chicopee, 138 67: See, also, Spar- hawk v. Salem, (1 A.) 83 30; Adams v. Natick, (13 A.) 95 429; Murphy v. Gloucester, 105 470; Conun. v. Wil- mington, 105 599; Warner «. Holy- oke, 112 362. 534. Nor to prevent unmanageable horses from escaping to the dangerous place. Comm. ». Wilmington, 105 599; Woods v. Groton, 111 357. 535. This rule applied, where the dangerous place was fifteen, twenty-five, or twenty-eight feet from the highway. Murphy v. Gloucester, 105 470; Warner ». Holyoke, 112 362; Daily o. Worcester, 131 452. 536. The question whether a railing is neces- sary, where there is any doubt, is for the jury. Spurr v. Shelburne, 131 429. 537. Where there was a difference in grade at a fork of the travelled part of the highway, and a traveller's wagon was overturned in con- sequence thereof, the ground being covered with snow, the question whether there was a defect, which rendered the town liable, was for the jury. Harris v. Newbury, 128 321. 538. Where a street, which had long been open to and used by the public, was laid out by the road commissioners of the town as a town way, and accepted at a town meeting, although the notice of the meeting was not in accordance with a by-law of the town; a ruling that it had not been laid out according to law, but that if the public were not cautioned against travelling upon it, the town would be liable for accidents to persons coming out of it, as well as to those entering thereupon, is not open to exception by the town. Taylor v. Woburn, 130 494. 539. A town is liable for an injury by a defect, in the portion of a street, covered by a steam railway, or a, street railway, subject to the use of the crossing by the railway, and the directions of the commissioners. Davis®. Leominster, (1 A.) 83 182; Pollard v. Woburn, 104 84; Prentiss «. Boston, 112 43; Hawks v. North- ampton, 116 420; Bailey ». Boston, 116 423, note. See, also, Jones v. Wal- tham, (4 C.) 58 299; Johnson v. Salem Turnpike, 109 522; and Railroad, III, (3); Street Railway. 540. But not where the defect was in the planking between the tracks. Scanlan v. Boston, 140 84. 541. A town is not obliged to keep the entire highway, from one boundary to another, clear of obstructions, and fit for the use of travellers. Howard v. North Bridgewater, (16 P.) 33 189. €68 HIGHWAY, VI, (1). 542. Where an injury occurs from an obstruc- tion, not in the travelled part of the highway, but within its limits, the liability of the town depends upon questions as to the reasonable safety of the way, the exerc se of due care by the plaintiff, and other questions of fact, arising upon the surrounding circumstances, and be- longing to the jury. Bigelow v. Weston, (3 P.) 20 267; Howard v. No. Bridgewater, (16 P.) 33 189; Shepardson v. Colerain, (13 Met.) 54 55; Snow v. Adams, (i C.) 55 443; Smith v. Wendell, (7 C.) 61 498; Kellogg v. Northampton, (4 G.) 70 65; Davis v. Dudley, (4 A.) 86 557; Mar- shall v. Ipswich, 110 522; Warner v. Holyoke, 112 362; Hawks v. Hawley, 123 210. 543. A post, so near the travelled way as to be dangerous, will render the town liable. Coggswell ». Lexington, (4 0.) 58 307. 544. As to the effect of the road being covered with snow, see Shepardson «. Colerain, (13 Met.) 54 55- Marshall v. Ipswich, 110 522; Joyner v. Great Barrington, 118 463. 545. A sidewalk, if a part of a street, is to be kept in safe and convenient repair for public use. Bacon v. Boston, (3 C.) 57 174; Weare «. Fitchburg, 110 334. 546. And where a sidewalk is built by a per- son, owning or occupying land adjoining a high- way, under G. S., Ch. 45, § 6; P. S., Ch. 53, § 6, that does relieve the tDwn from its obliga- tion to keep the highway safe and convenient: and the right is subject to the condition that the way shall not be unreasonably obstructed. Appleton v. Nantucket, 121 161. 547. A city or a town is liable for an injury by the fall of an awning over a sidewalk, if it has been dangerous 24 hours. Drake ». Lowell, (13 Met.) 54 292; Day v. Milford, (5 A.) 87 98. 548. So as to a transparency. West ». Lynn, 1 10 514. 549. But not for a fall of snow and ice from the roof of a building. Hixon v. Lcwell, (13 G.) 79 59. 550. Or of a sign. Jones «. 'Boston, 104 75. 551. It is liable for an injury, in consequence of door steps, projecting upon the sidewalk, beyond the limits allowed by statute or ordi- nance, but not within those limits. Cushing v. Boston, 122 173; Cusk- ing v. Boston, 124 434; Cushing v. Boston, 128 330. 552. Where the question arises whether a foot path, by the side and within the location of a highway, has been recognized by the town as part of the highway, which it is bound to keep in proper condition for travel, the question is for the jury. Whitford v. Southbridge, 119 564. 553. Where the judge instructs the jury that the plaintiff cannot recover, unless the defect was in the foot path, an exception does rot lie to his refusal to add, that the plaintiff cannot recover, if the defect was in the grass on the side. Lowe v. Clinton, 136 24. 554. And knowledge by the plaintiff that the foot path was unsafe, is not conclusive evidence of want of due care in using it, but is to go to the jury. Whitford v. Southbridge, 119 564. 555. Whether a cracked flagstone, covering a, coal cellar, in the sidewalk, is so defective, as to render the city liable for an injury caused by its breaking under the plaintiff's weight, is for the jury. Burt v. Boston, 122 223. 556. For the general rules, as to the condition in which a street in a city should be kept for crossing, see Raymond v. Lowell, (6 C.) 60 524. 557. A slight projection of a movable grating above the sidewalk, will not render a city liable for an injury received by stumbling over it. Raymond ». Lowell, (6 C.) 60 524. 558. And where an injury occurs from the projection, above the level, of the cover to a cellar, culvert, or the like, it is for the jury to determine, whether it was in the line of travel for foot passengers, or whether it was such a defect as renders the city liable, if any such question arises upon the evidence. Loan v. Boston, 106 450; Dowd v. Chicopee, 116 93; Hodgkins v. Rock- port, 116 573. 559. So where such a cover has become smooth and slippery from use, and the injury resulted from a fall thereon. Cromarty v. Boston, 127 329. 560. Where posts were erected by the owner of land adjoining a highway, to mark the width of a sidewalk made by him, and the judge in- structed the jury, that the question for them was, whether "the posts made travel unsafe, for those travelling with due care in the ordinary travelled path, as it then existed," it was held that this instruction was not open to an excep- tion by a town, sued for an injury by collision with a post. Appleton ■». Nantucket, 121 161. 561. Where, in such an action, the collision occurred in the night, and the way was suffi- ciently wide and smooth, for the plaintiff to have passed safely without difficulty, except for the darkness, it was held that there was no evi- dence, upon which the plaintiff could go to the j ur y- Macomber v. Taunton, 100 255. 562. If a private way has been opened from a public way, and dedicated to public use, the town is liable for a defect in the public way, between the wrought part and the entrance to the private way, unless it has cautioned the public against entering the private way. Paine v. Brockton, 138 564. AUter, if caution has been given. Smith ■». Lowell, 139 336. 563. A town is not liable for a defect in the sidewalk of a way, which has been located and laid out so as to run through the sidewalk, in a line parallel with the curbstone, but without the location of the way, although there was no HIGHWAY, VI, (2). 66& monument indicating the location, and the entire sidewalk was used by travellers. Stone ». Attleborough, 140 328. [For rulings, in cases where the actual injury nrourred beyond the limits of the highway, from a primary cause occurring within the limits, or vice tena,seepost,YI,&-i (2.) Nature and cause of the defect. [See, also, ante, VI, (1).] 564. Whe^e any question arises upon the evidence, it is for the jury to decide, upon all the evidence, whether the defect or obstruction proved is of such a nature, as to render the road dangerous for travellers; and the fact that the plaintiff was injured on account of it, does not necessarily show that it was such a defect. Ghenn «. Provincitown, 105 313; Dowd v. Chicopee, 1 16 93. See, also, Halls. Lowell, (IOC.) 64 260; Taylor d. Woburn, 130 494; Purple v. Green- field, 138 1; Davis ^.Charlton, 140 423; Talbot «. Taunton, 140 552. 565. And a refusal to rule that in order to maintain the action, the defect must have been such, that the town would have been liable to indictment therefor, is not open to exception. Goldthwait v. B. Bridgewater, (5 G.) 71 61. 566. It is not improper for the judge to in- struct the jury, that a different state of repairs is required in a closely built and thickly settled locality, with a great amount and variety of travel, than in a country place, where the state of things in that respect is different. Fitz v. Boston, (4 C.) 58 365. 567. A town is not liable for an injury, re- ceived by reason of the crookedness and narrow- ness of the road. Smith v. Wakefield, 105 473. i 568. A town or a city is not liable for an injury, proceeding from its omission to light its highways, although a city ordinance requires such lighting. Sparhawk v. Salem, (1 A.) 83 30; Macomber v. Taunton, 100 255; Ran-, dall s. Eastern R. R., 106 276; Lyon a. Cambridge, 136 419. 569. If selectmen put up a watering trough, painted a brilliant red, and of such a character as to frighten horses, the town is not liable, although it instructed them to establish a pub- he watering trough. Cushing v. Bedford, 125 526. 570. Nor is a town liable for damages sus- tained by a telegraph pole, put up by a com- pany m a place in the highway, fixed by the selectmen, as prescribed by statute. Young «. Yarmouth, (9 G.) 75 386. 571 But a city is liable for an injury by its own telegraph wire, negligently removed for a purpose not connected with the fire department. Neuert e. Boston, 120 338. 572. An illegal use of the hiehway by men, mrZT" 1 ^' vellicles > or other objects put in motion by human action, does not render a »wn or a city liable. __ Barber v. Roxbury, (11 A.) 93 318. 573. Thus a rope, stretched across the high- way, belonging to a derrick in use, is not a defect, which will enable one injured by collis- ion with it, to recover against the town. Barber v. Roxbury, (11 A.) 93 318. 574. For other illustrations of this principle, see Vinal v. Dorchester, (7 G.) 73 421; Pierce v. New Bedford, 129 534. 575. A town is not the less liable for an injury, caused by the undermining of the high- way, from neglect in the construction of its water works, because it is the town bound to keep the way in repair. Hand v. Brookline, 126 324. 576. Evidence that a town, while changing the grade of its highway, knew or had reason to know, that the barriers, placed by it at each end, were habitually taken down and left down, is competent upon the question of care. Howard v. Mendon, 117 585. 577. A town or city, grading or doing other work upon a highway, which renders travel thereon unsafe, is bound to put up and main- tains barriers, sufficient to guard travellers against using it, while the work is being done; and whether such barriers were sufficient, and whether reasonable and proper care was taken to maintain them, are questions for the jury. Doherty «. Waltham, (4 G.) 70 596; Myers v. Springfield, 112 489; White *. Boston, 122 491. 578. If where barriers are so put up, one, with knowledge thereof, attempts to use the way, he cannot recover for an injury, although the way was unnecessarily closed. White •». Boston, 122 491. 579. A town cannot relieve itself from such liability, by making a contract for doing the work, with a provision that the contractor shall guard the trenches. Brooks v. Somerville, 106 271. 580. If a city, digging a trench in the high- way, is otherwise liable as for a defect, it is. not relieved by the fact that barriers erected by it were removed by an individual. Prentiss v. Boston, 112 43. 581. A railing by the side of a highway, to- protect against a dangerous place, is sufficient, if suitable for the ordinary exigencies of travel at the place; and where it broke down under the weight of a horse and a loaded wagon, it was held that the jury should determine, whether it ought to have been strong enough to support such a weight. Lyman ». Amherst, 107 339. 582. One who uses such a railing to sit upon or lean against, does so at his own risk. Stickney v. Salem, (3 A.) 85 374. 583. The mere fact that a highway is slippery from ice, so that a person using ordinary care is. liable to slip and fall upon it, is not a defect, for which a town is liable to one thus falling, if there is nothing in the construction of the way, which occasions any special liability to the formation or accumulation of ice upon it, and there is no such accumulation of ice or snow as to cause an obstruction. Stanton v. Springfield, (12 A.) 94 566. See, also, Johnson v. Lowell, (12 A.) 94- 670 HIGHWAY, VI, (2), (3). 572, note; Hutchins v. Boston, (12 A.) 94 571, note; Nason v. Boston, (14 A.) 96 508; Stone*). Hubbardston, 100 49; Gil- bert v. Roxbury, lOO 185; Billings i>. Worcester, 102 329; Pinkham ». Tops- field, 104 78. 584. So of a sidewalk rendered slippery by snow freezing upon it, which was carried there and trodden down by ordinary travel, although the quantity of snow was increased by a ridge thrown up by a street railway. Nason v. Boston, (14 A.) 96 508. 585. As to what construction of a road tends to produce ice in a particular spot, see Pinkham v. Topsfield, 104 78. 586. But if there is any special cause for the formation of ice at the spot, against which the town or city might have guarded, it is liable. Hall i). Lowell, (10 C.) 64 260; Stan- ton v. Springfield, (12 A.) 94 566. See, also, Kirby v. Boylston M. Assoc'n, (14 G.) 80 249; Stone v. Hubbardston, lOO 49; Billings v. "Worcester, 102 329; Fitzgerald v. Woburn, 109 204; Ber- renberg v. Boston, 137 231. 587. And if ice or snow is suffered to remain upon a sidewalk, in such an uneven and rounded form as to be dangerous, the jury may find it to be a defect, for which the city is liable. Luther v. "Worcester, 97 268; Hutch- ins v. Boston, 97 272, note; Stone v. Hubbardston, lOO 49; Morse u. Boston, 109 446; McAuley v. Boston, 113 503; Williams 1>. Lawrence, 113 506, note. 588. Where a portion of the sidewalk was occupied, in the winter and under license, by workmen on an adjoining building, and bar- riers were set up at each end; and in the carriage way, a path around the obstructed part had been beaten by travellers in the snow, in which a round hard pile of snow had formed; it was held that the jury were to determine whether the plaintiff, injured by slipping upon the pile, was using due prudence and care in going around by the path, instead of crossing the street, and whether the pile was an action- able defect. Gerald v. Boston, 108 580. 589. Where a city would be liable for a fall upon an icy ridge in the street, it is no defence that the accident would not have happened, but for a recent fall of light snow. Street v. Holyoke, 105 82, 590. In an action against a city, for damage occurring in consequence of ice and snow, where the snow fall has been recent, it is for the jury to determine whether there was suffi- cient time to remove it, or render it harmless; but the defendant cannot show what it actually did for that purpose. Payne v. Lowell, (10 A.) 92 147. See, however, O'Neill v. Lowell, (6 A.) 88 110, and post, VI, (3). 591. In an action against a city, a ruling that the authorities have no right to prevent surface water from flowing upon the highway from adjacent land, is erroneous, and contrary to well settled principles of law. Keith v. Brockton, 136 119. 592. The fact that the road commissioner, after the accident, repaired the defect, is not evidence against the town, without proof that it voted to make the repairs, or ratified the commissioner's act. Spooner v. Freetown, 139 235. 593. It is not the duty, or within the power, of the selectmen, to erect a railing in a way, in order to change the line of travel; and in an action against the town for an injury caused by such a railing, it is for the jury to determine, whether it rendered the way defective. Pratt v. Amherst, 140 167. (3.) Defendant's fault. 594. The liability of a town or city, for an injury from a defect in the highway, rests upon the statute. No such liability exists at common law. Mower v. Leicester, 9 247; Sawyer v Northfield, (7 C.) 61 490; Monies v. Lynn, 121 442. 595. Before the enactment of St. 1877, Ch. 234, § 2; P. S., Ch. 52, § 18, it was sufficient, in order to render the town or city liable, to prove the existence of the defect, and either that it had existed 24 hours, or that the town or city had notice of it. It was no defence to show that there was no negligence on the part of the defendant town or city, or even that it was out of the power of the defendant to remedy it. Rooney ». Randolph, 128 580; Hayes ». Cambridge, 136 402. See, also, Brady v. Lowell, (3 C.) 57 121; Sawyer v. Northfield, (7 C.) 61 490; Hortona. Ipswich, (12 C.) 66 488; Merrill «. Wilbraham, (11 G.) 77 154; Donaldson i). Boston, (16 G.) 82 508; Pinkham v. Topsfield, 104 78; Crocker v. Spring- field, 110 135; George v. Haverhill, HO 506; Bodwell v. North Andover, HO 511, note; Harriman v. Boston, 114 241; Hodgkins®. Rockport, 116 573; Blair v. Pelham, 1 18 420; Monies i>. Lynn, 119 273; Monies v. Lynn, 121 442; Whitehead «. Lowell, 124 281; Foster v. Boston, 127 290. 596. In computing the 24 hours, Sunday was included. Flagg*. Millbury, (4C.) 58 243. 597. Implied notice sufficed. Reed v. Northfield, (13 P.) 30 94; Howe v. Lowell, 101 99. 598. And where an excavation in the high- way, or other defect, was made by the town or city itself, no proof of notice was necessary. Brooks v. Somerville, 106 271. 599. If a defect had been repaired, and a storm afterwards produced another defect in the same place, or otherwise connected with the former defect, the question as to notice or du- ration related entirely to the new defect. Billings e. Worcester, 102 329. 600. The same principle held with respect to other new defects, in place of old defects. Crosby v. Boston, 118 71. HIGHWAY, VI, (3), (4). 671 601. The liability was not limited to defects, which were open and visible. Burt v. Boston, 123 223. 602. Before the statute of 1877, it was also held that the liability was not varied, because the defect was caused by the exercise of the right of aland owner to use the street for some private purpose, as by building cellar windows Into the sidewalk. Bacon v. Boston, (3 C.) 57 ' 174. [See, ante, VI, (1); VI, (2).] 603. But that where a town built barriers against a cattle guard, constructed by a railroad company, which was authorized so to do, which barriers extended as far as possible, without impeding the passage of trains, the town was not liable to one falling into the cattle guard. Jones v. Waltham, (4 C.) 58 299. 604. And that a town was not liable for an injury by a locomotive, run by a railroad com- pany, on a track illegally laid across the highr way, but which did not of itself render the road unsafe and inconvenient. Yinal v. Dorchester, (7 G.) 73 421. 605. But it was liable, where an excavation was lawfully made by a railroad company, across the highway, and no barriers were put up, although the town had notified the superin- tendent to put them up, and he had promised so to do. Currier v. Lowell, (16 P.) 33 170. This case criticised, Vinal v. Dorchester, ■ (7G.) 73 421; and followed, Prentiss «. Boston, 112 43. 606. Where an excavation was guarded by harriers, removable to allow the passage of street railway cars, the removal of the barriers by the railway company did not exonerate the city. Prentiss e. Boston, 112 43. 607. But where the city or town had erected harriers to guard against an excavation, and they were removed during the night by strang- ers, the city was not liable. Doherty*). Waltham, (4 G.) 70 596: Prentiss v. Boston, 112 43. And the general rule, was that the city or town was not liable for an injury, caused by the combined effect of a defect 'in the highway and the unlawful or careless act of a stranger. Kidder v. Dunstable, (7 G.) 73 104- Shepherd v. Chelsea, (4 A.) 86 113 : iyons v. Brookline, 119 491. n ,.; L^l On ?.' wh0 was P ushed down a danger- ous declivity by a crowd, might recover, if the %o^Z^ mUl17 " negUgently * Alger v. Lowell, (3 A.) 85 402. her m t^T here a stone in the highway had *ff bv someone, and had lain in its ^ v ZZlV hau u homs ' the city or Maccarty d. Brookline, 114 527. thf^tiTVU 1 ? 6 defect was substantially tamaS °» **?»* ™* not varied by an Cy-four hours ^ ' ^^ WltMa carrv? r L< ?^ e11 ' (1 A '> 83 m '> Mac- carty v. Brookline, 114 537. 611. So where the action of the elements had increased the danger within the 24 hours. Blood ». Hubbardston, 121 233. 612. But a ruling that where the highway had been, by the act of the city, for more than 24 hours, in such a state, that it was liable to become defective at once by the ordinary action of the elements, the jury might find a defect from such a cause, for which the city was liable, although the city had no notice, and the defect had not existed 24 hours, was erroneous. Monies *. Lynn, 121 442; Monies v. Lynn, 124 165. See, also, Ryerson v. Abington, 102 526. 613. Since the enactment of St. 1877, Ch. 234, § 2; P. S., Ch. 52, § 18, the question is merely, whether the defect might have been remedied, or the damage or injury might have been prevented, by reasonable care and diligence on the part of the defendant town or city. What is reasonable care and diligence in any given case, must depend upon a variety of cir- cumstances. Hayes v. Cambridge, 136 402; Post D.Boston, 141 189; Hanscom v. Boston, 141 242. 614. For general rules, as to what is reasona- ble care and diligence, especially in the case of defects from ice and snow, see Hayes v. Cambridge, 136 402. 615. The expense of removing the defect, as compared with the resources of the town to meet the cost, is a proper matter for considera- tion. Rooney v. Randolph, 128 580; Hayes v. Cambridge, 136 402. 616. If a cesspool and its cover, in the high- way in a city, are so constructed, that, in a heavy rain, the water lifts the cover off, the city is liable for an injury occasioned thereby, if it had notice that the cover was liable to come off, or, with reasonable care, might have known and remedied the defect. Post ». Boston, 141 189. 617. A city is not liable for an injury, caused by falling into a coal hole on the sidewalk, where the cover turned under the traveller, be- cause it was not fastened on the inside by the occupant, if the fact that it was unfastened was not apparent from the street, or known to any municipal officer. Hanscom v. Boston, 141 242. 618. The selectmen of a town have no right forcibly to remove a temporary bridge, built over a highway by a railroad company, in place of one burned, and which obstructs the way; and if they urge the company to remove it, and complain of it to the proper officer, the town is not liable for an injury caused thereby to a trav- eller. Flanders 0. Norwood, 141 17. (4.) Plaintiff's conduct. [See, also, Negligence, IIJ 619. The duty imposed upon towns is fixed by R. S., Ch. 25, § 1; G. S., Ch. 44, § 1; St. 1877, Ch. 234, § 1; P. S., Ch. 52, §1. Their liability is commensurate with this duty. Only 672 HIGHWAY, VI, (4). those who are using the road for legitimate purposes, in the usual and ordinary moae, can claim indemnity from a town for injuries caused solely by defects in the highway, or by the combined effect of such defects, and pure fl.OPlCl.PTlt Richards v. Enfield, (13 G.) 79 344. 620. Thus a traveller who stops and ties his horse, outside the limits of the highway, cannot recover, if the horse gets loose, and suffers an injury from the defect. Richards v. Enfield, (13 G.) 79 344. 621. So one who is playing upon the high- way cannot recover. Blodgett v. Boston, (8 A.) 90 237; Tighe ». Lowell, 119 472. 622. Nor can one sitting upon a sidewalk, and injured by the fall of a curbstone. Lyons «. Brookline, 119 491. 623. Nor can one leaning against a railing and conversing with another, who is injured from the insufficiency of the railing. Stickney *. Salem, (3 A.) 85 374. 624. But a traveller who stops, alights, and employs himself in acts not connected with his journey, does not necessarily forfeit his rights as a traveller. "Where there is any doubt, as to whether he has ceased to use the highway as a traveller, the question is for the jury. Babsonn. Rockport, 101 93; Britton v. Cummington, 107 347; Hunt «. Salem, 121 294. 625. As where he stops to pick berries. Britton v. Cummington, 107 347. 626. Or where, being a boy, he crosses the street to look at some toys in a window over a grating, which gives way. Hunt B.Salem, 121 294. 627. A town is liable for an injury to an elephant driven over the highway, if the jury determine that, under all the circumstances, it was reasonably proper to drive the animal over the highway. Gregory i>. Adams, (14 G.) 80 242. 628. A traveller who leaps from his carriage, to avoid an apprehended injury from a defect in the highway, and is injured by so doing, may recover, if the jury determine that the act was dont in the exercise of ordinary care and prudence, and under a reasonable apprehension of injury, whether the apprehended accident did or did not occur. Lund v. Tyngsboro, (11 C.) 65 563; Sears v. Dennis, 105 310; Williams v. Leyden, 119 237. 629. For a parallel case, where the action was against a carrier for a defective vehicle, see Ingalls v. Bills, (9 Met.) 50 1. 630. In order to recover, a traveller must use a proper horse and vehicle, and suitable harness; and if the viciousness of his horse contributed to the accident, he cannot recover, although the vice was unknown to him, and he used due and reasonable care in obtaining and managing the animal. Murdock v. Warwick, (4 G.) 70 178; Bliss ». Wilbraham, (8 A.) 90 564; Brooks v. Acton, 117 204; Whitney v. Leominster, 136 25. See, also, Crafts «. Boston, 109 519. 631. Where the evidence is conflicting, whether the viciousness of the plaintiff's horse contributed to the accident, evidence of the character and habits of the horse is admissible, as bearing upon the inquiry as to the cause of the accident. Whitney «. Leominster, 136 25. See, also, Todd $>. Rowley, (8 A.) 90 51; Maggi v. Cutts, 123 535. 632. Where the plaintiff's horse had defect- ive eyesight, an instruction to the jury, that if the defect in the horse in any way contributed to the accident, by rendering him unmanage- able or otherwise, the plaintiff cannot recover, is not open to exception. Wright v. Templeton, 132 49. 633. The burden of proof is upon the plain- tiff, to show affirmatively that he was using ordinary care and diligence, in travelling upon the road, although the town or city was also in fault. Adams v. Carlisle, (21 P.) 38 146. See, also, Smith v. Smith, (2 P.) 19 621; Thompson «. Bridgewater, (7 P.) 24 188; Fallon v. Boston, (3 A.) 85 38. 634. And he cannot recover, if all the evidence in the case is equally consistent with care or negligence on his part. Crafts ». Boston, 109 519. 635. The question of due care or negligence is to be determined by the jury. Bigelow v. Rutland, (4 C.) 58 247; Ryerson «. Abington, 102 526; Britton v. Cummington, 107 347; Prentiss v. Boston, 112 43; Woods ®. Boston, 121 337; Harris ». Newbury, 128 321. 636. Even although the plaintiff was intoxi- ' Alger 1). Lowell, (3 A.) 85 402. [As to violating the law of the road, see ante, I, (4).l 637. The question,, whether the plaintiff exer- cised due care and skill in driving, is peculiarly for the jury. Reed v. Deerfield, (8 A.) 90 522; Stevens v. Boxford, (10 A.) 92 25; Bly «. Haverhill, 110 520. See, also, Gil- man v. Deerfield, (15 G.) 81 577; Blood «. Tyngsborough, 103 509; Hill i>. See, konk, 119 85; Hawks ». Northampton- 121 10. 638. But if the case is a clear one, showing want of ordinary care, the court will direct a verdict for the defendant. Little v. Brockton, 123 511. 639. Where the plaintiff knew of the defect, that is not conclusive evidence of want of due care, but goes to the jury with the other testi- mony, upon the question whether he used due care in attempting to pass. Reed v. Northfield, (13 P.) 30 94; Smith v. Lowell, (6 A.) 88 39; Frost v. Waltham, (12 A.) 94 85; Whittaker v. West Boylston, 97 273; Mahoney «. Metropolitan Railroad, 104 73; Pollard v. Woburn, 104 84; Lyman®. Amherst, 107 339; Gilbert v. Boston, 139 313. 640. But where a person voluntarily attempts to pass over a dangerous place, which he might HIGHWAY, VI, (4), (5). 673 easily avoid, knowing that it is dangerous, that h inclusive evidence of want of due care. Raymond «. Lowell, (6 C.) 60 524; Wilson b. Charlestown, (8 A.) 90 137. 641 One who knows of a defect, but, being frightened, runs over it in the dark, without thinking of it, is not precluded as matter of law from recovering. Barton «. Springfield, HO ldl. 642 So where a mother, alarmed for her children's safety, is injured by running over a stone near her own house. Weare v. Fitchburg, 110 334. 643. So where the omission to notice the de- fect was caused merely by mental pre-occupa- tion. George ®. Haverhill, 110 506. 644. So where, while the plaintiff, a girl of nineteen, was passing carefully between a cart and the dangerous spot, the cart backed, and she stepped aside to avoid it, and fell in. Snow v. Provincetown, 120 580. 615. A person cannot relieve himself from a dangerous position, into which his own fault has brought him, and hold the town responsible for the result. Little v. Brockton, 123 511. See, also, Gaynor v. Old Colony & N. Bail- way, 100 208; Mayo v. Boston & M. Eailroad, 104 137. 646. Where a bridge has been rendered im- passable by freshets and repairs, crossing by a ford is not conclusive evidence of negligence, hut is for the jury. Eindge v. Coleraine, (11 G.) 77 157. 647. One driving on a highway obstructed with snow, must use ordinary care in deter- mining whether to proceed or return. Horton v. Ipswich, (12 C.) 66 488. 648. It is enough if the plaintiff looked ahead, in such manner as persons of ordinary prudence do, in riding upon a highway. Hill v. Seekonk, 119 85. 649. Where one might have seen frorn an eminence, that a causeway was covered with water, but on descending the hill could not turn, by reason of the narrowness of the road, and so went on, and his horse was drowned; it was held that he had exercised ordinary care. Thompson «. Bridgewater, (7 P.) 24 188. 650. Evidence that the plaintiff was com- monly skilful and careful in driving is not admissible. McDonald v. Savoy, 110 49. 651. A refusal to instruct the jury that one of defective eyesight should take greater care, in walking the street, than one of good eyesight, is error. 6 J Winn d. Lowell, (1 A.) 83 177. 652. A boy, fifteen years old, is required only to exercise that degree of care and atten- tion which may reasonably and fairly be ex- pected from one of his age and capacity. Dowd v. Chicopee, 116 93. See, also, Pollard v. Woburn, 104 84. 653. After the plaintiff's horse has begun to ilTi" m t .?°° se< l ueno e of a defect in the highway, [•lie is still bound to exercise such care, as a per- VOL. 1—85 - son of ordinary prudence and discretion would exercise, under the circumstances. tBrooks v. Petersham, (16 G.) 82 181. 654. One driving across a bridge faster than on a walk, in violation of a city ordinance, cannot recover for an injury by a defect in the bridge, although he was ignorant of the ordi- nance. Heland v. Lowell, (3 A.) 85 407 [See, also, Bkidge, II, (2).] 655. And where the plaintiff was driving upon, a city street, and there was a city ordinance pro- hibiting driving faster than six miles an hour, the burden of proof is upon him to show that he was not violating the ordinance. Tuttle v. Lawrence, 1 19 276. [For rulings in cases where the plaintiff was trav- elling on a Sunday, see Lobd's Day, II, (2).] 656. A surveyor of highways cannot re- cover for an injury from a defect, which he was bound to repair, if it arose from his own neglect; and failure to call upon the inhabitants, if he has expended all the money in his hands, is such neglect. Wood d. Waterville, 4 422; Wood v. Waterville, 5 294. See, also, Todd v. Kowley, (8 A.) 90 51. 657. And the owner or lessee, whose duty it is to keep the sidewalk in repair, cannot recover against the city for injury from a defect therein ; but a sub-lessee of a part only may. Burt v. Boston, 122 223. 658. In an action by husband and wife, for an injury to the wife, the fact that the husband knew of the defect, in season to have warned her, is no defence. Street ®. Holyoke, 105 82. 659. Where a signal with a light was put up, as a warning that the street was being repaired, and the plaintiff, supposing that the warning was only for repairs in the road-bed, continued to pass along the sidewalk at night, and'was in- jured, it is for the jury to determine, whether the warning was sufficient for the sidewalk also. White v. Boston, 122 491. 660. When the defect is that a railroad bridge crossing the way was too low, and the action is to recover for an injury to the plaintiff's omni- bus from striking it; the question whether the driver exercised due care is for the jury. Talbot i>. Taunton, 140 552. 661. In such a case, it is also for the jury to determine, whether the height of the bridge renders the way defective. Talbot v. Taunton, 140 552. (5.) Proximate, remote, or contributing cause. [As to the rule, where the plaintiff's want of due care or skill, or the vice of his horse, or other insuffi- ciency in any way contributed to the accident, see oS VI. (4). As & the rule where a third person's unlawful act contributed to the defect in the way, see, also, . Worcester,(4 G.) 70 395. 664. One who leaves the highway, by reason of a defect thereon, and receives an injury upon the adjoining land, cannot recover, as the defect was but a remote cause of his injury. Tisdale v. Norton, (8 Met.) 49 388. 665. But if the plaintiff's horse, while leaving the highway for a defect, is caught in a fence constituting the boundary line, and, while being carefully removed, rolls over into the adjoining land, and receives an injury from that fall, the plaintiff may recover. Tuttle v. Holyoke, (6 G.) 72 447. 666. "Where a horse went over a bank for want of a railing, and while under that impetus fell upon ice in an adjoining field, it was held, that the plaintiff might recover. Stevem v. Boxford, (10 A.) 92 25. 667. And, e converso, where the plaintiff slipped upon steps, without the limits of a street, and continuing to slip until she reached the sidewalk, there fell, the steps and sidewalk being coated with ice, it was held, that the city was not liable. Rowell v. Lowell, (7 G.) 73 100. 668. Where, after a wagon was injured by a defect in the highway, the driver examined it, and proceeded upon his journey, and, on a smooth part of the road, the axletree broke, and he was thrown out and injured, it was held, that the town was not liable. Jenks i>. Wilbraham, (11 G.) 77 143. 669. Where a railing, on the side of the high- way, would have prevented a carriage from run- ning down an embankment, it was held that the town was liable, although the carriage com- menced to run, in consequence of the bolt coming out, which fastened the pole to the car- riage; that accident being one which common prudence and sagacity could not have foreseen, and provided against. Palmer v. Andover, (3 C.) 56 600, as explained in Rowell d. Lowell, (7 G.) 73 100. See, also, Davis v. Dudley, (4 A.) 86 557; Titus v. Northbridge, 97 358. 670. Where a traveller's horse slipped in the highway, and was drawn backwards over a bank, by the weight of the wagon, if the judge rules that, in order to enable the plaintiff to re- cover, the jury must find that the want of a sufficient railing was the sole cause of the injury, the defendant cannot maintain an exception for his refusal to rule, as to whether the highway was defective from the nature of the materials, at the place where the horse slipped. Lyman ». Amherst, 107 339. 671. For a peculiar case, where, while the plaintiff, having alighted, . was at his horses' heads, they backed, and the carriage was thrown over an unprotected embankment, and the ques- tions whether, if the plaintiff lost control of his horses, the loss was only momentary, and whether the way was defective, for want of a barrier, together with the other questions aris- ing, were left to the jury, see Britton v. Cummington, 107 347. 672. In another peculiar case of the same general character, the whole question was sub- mitted to the jury, with the instruction that the plaintiff could not recover, if the horse became uncontrollable before the accident, unless the plaintiff's loss of control was momentary only; and, if the horse backed 60 feet or more, the plaintiff could not recover; and the jury having found a v rdict for the plaintiff, it was held that the defendant had no ground of exception. Wright v. Templeton, 132 49. 673. So where the injury was caused by the plaintiff's horse shying, it was held that the shying was as much of an accident, as the failure of some part of the carriage, and the jury were justified in finding that the plaintiff's loss of control was momentary or partial. Cushing v. Bedford, 125 536. 674. The rule is, that if the accident happens, in consequence of the plaintiff's loss of control of his horse, he cannot recover, unless it would have happened if the animal was not uncon- trollable; but a horse is not considered uncon- trollable, if he merely starts or shies, or if the loss of control is only momentary, and was re- covered before the accident. Titus v. Northbridge, 97 358; Horton «. Taunton, 97 366, note; Fogg v. Nahant, 98 578; Fogg v. Nahant, 106 378. See, also, Davis v. Dudley, (4 A.) 86 557. 675. But in the case of shying, it must appear that the shying was not caused by a vicious habit, and was at an object which would natu- rally startle a gentle and well broken horse. Stone v. Hubbardston, 100 49. [As to the rule, where a vicious habit of the horse led to the accident, see, also, ante, art. 630.] 676. And if the accident happens immedi- ately, it is immaterial that the plaintiff had not then regained control. Babson v. Rockport, 101 93. 677. So if the carriage had gone so far over a bank, as to be beyond control of the horse, before the horse got beyond control of the driver, the plaintiff can recover. Babson d. Rockport, lOl 93; Britton v. Cummington, 107 347. 678. If a horse, frightened at a collision with a defect in the highway, frees himself from the control of his driver, and runs, and injures a foot passenger, the latter cannot re- cover against the town. Marble v. Worcester, (4 G.) 70 395. 679. An object in the highway, with which a traveller does not come in collision, and which is not an incumbrance or obstruction in the way of travel, is not a defect, for which the town is responsible, because a horse takes fright at it, and thereby causes damage, with- out any actual defect of the way. Cook v. Montague, 1 15 571. See, also, Keith v. Easton, (3 A.) 84 553; Kingsbury d. Dedham, (13 A.) 95 186; Cook v. Charlestown, (13 A.) 95 190, note; Cook v. Charlestown, 98 80; ( > Bemis ». Arlington, 114 507. HIGHWAY, VI, (5), (6). 675 680 But where a horse, thus frightened, comes in contact with a defect in the highway, which he would otherwise have avoided, the iury may find that the defect was the sole, direct and efficient, cause of the injury. Cushing e. Bedford, 125 526, and cases cited, supra. 681. K a condition of things outside of the highway, or the negligent or' unlawful act of another, contributes to the injury, the town is not liaDle. Barber ®. Roxbury, (11 A.) 93 318. 682. The liability of a town does not depend upon the existence of another defect, which occasioned the defect that was the proximate cause of the injury, if the town was not liable for the latter. Eyerson 8. Abington, 102 526. (6.) Notice erf tUe injury, required by statute. [The provisions of the statute on the subject of notice, are St 1877, Ch. 834, § S ; P. S., Ch. 53, 8 19, (the latter section having been materially amended by 1. 1882, Ch 36) ; St. 1877, Ch. 234, § 4, amended by St. I8W, Ch. 244, which amendatory act was repealed, and the original 6 4 superseded, by St. 1881, Ch. 236 ; P. S., Ch.52,§21.] , 683. Although the statute speaks of "per- sons" obliged to repair, it does not apply to a private individual, who left open a coal-hole in the sidewalk, into which the plaintiff fell and was injured; and such a person is not entitled to notice. Fisher 8. Cushing, 134 374. 684. Since the amendment of P. S., Ch. 52, \ 19, by St. 1882, Ch. 36, a notice, under the sec- tion thus amended, is not to be deemed invalid or insufficient, solely by reason of inaccuracy in stating the time, place, or cause of the injury; if it is shown that there is no intention to mis- lead, and that the party entitled to notice was not misled. The statute of 1882 does not apply to an action for an injury, notice of which had teen given, before it was enacted. ShaUow ». Salem, 136 136. 685. Before the amendment of 1882, it was held, that the purpose of the notice was to en- able the city to investigate the cause relied upon, and in that respect notice was sufficient, ■which called the attention of the city or town, with sufficient distinctness, to the cause relied upon, to answer the purpose required; and that it need not state with particularity the form, etc., of the defect, so as to show that it was necessarily a defect. Dalton 8. Salem, 136 278. See, also, Spellman v. Chicopee, 131 443; Savory s. Haverhill, 132 324. 686. For other rulings, as to the sufficiency of the notice, with respect to the statement of the cause of the injury, and of the defect relied upon, before the amendment of 1882, see Noonan v. Lawrence, 130 161; Mc- tfulty e. Cambridge, 130 275; Taylor «. Woburn, 130 494; Madden v. Sprmgfield, 131 441; Dalton®. Salem, lol 551; Dickie ®. Boston & A. Rail- road 131 516; Whitmans. Groveland, • toi 553 ! Bailey D.Everett, 132 441; Welch v. Gardner, 133 529; Aston v. Newton, 134 507; Cronin v, Boston, 135 110; Lyon v. Cambridge, 136 419; Lyman v. Hampshire Co., 138 74; Spooner v. Freetown, 139 235; Roberts «. Douglas, 140 129; Grogan 8. "Wor- cester, 140 227; Davis v. Charlton, 140 422. 687. If the notice to a city is insufficient, it is not aided by the fact that the plaintiff's agent stated the facts fully to the mayor, and, at his request, called on the city clerk, and stated the same facts to him, and he drew the notice. Dalton 8. Salem, 139 91. 688. If the notice states the cause of the in- jury to be an accumulation of snow and ice on the sidewalk, and that cause, combined with an improper construction of the sidewalk, con- stituted the defect, the inaccuracy does not in- validate the notice, if there was no intention to mislead, and the defendant was not misled. Canterbury 8. Boston, 141 215. 689. Before the amendment of 1882, it was held that "Christmas morning" sufficiently specified the time; and the naming of the day, without any division thereof, sufficed. Taylor 8. Woburn, 130 494; Don- nelly v. Fall River, 132 299. 690. Also that "Oak street, between M's and W's houses," they being half a mile apart, did not sufficiently specify the place Post v. Foxborough, 131 202. 691. For other rulings, as to the sufficiency of the notice, with respect to' the statement of the time and place where the injury occurred, before the amendment of 1882, see Larkin v. Boston, 128 521: Miles®. Lynn, 130 398; Taylor v. Woburn, 130 491; Post®. Foxborough, 131 202; Shea v. Lowell, 132 187; Don- nelly r>. Fall River, 132 299; Lowe v. Clinton, 133 526; Welch v. Gardner, 133 529; McCabe v. Cambridge, 134 484; Cronin v. Boston, 135 110; Lyman ®. Hampshire Co., 138 74; Sargent 8. Lynn, 138 599; Dalton 8. Salem, 139 91. 692. It is not necessary that the notice should state, that the injured person will hold the town or city responsible. Taylor v. Wobum, 130 494; Savory v. Haverhill, 132 324. 693. Since the amendment of 1879, the notice must be in writing, and its sufficiency must be determined by the court. Shea a. Lowell, 132 187. 694. As to the sufficiency of an oral notice, before the statute required a written notice, see Kenady 8. Lawrence, 128 318; Harris v. Newbury, 128 321; McNulty D.Cambridge, 130 275; Miles®. Lynn, 130 398; Mooney v. Salem, 130 402; Roach v. Somerville, 131 189. 695. The fact that the officer, upon whom the notice is served, does not object to its suffici- ency, is immaterial upon that question. Shea ®. Lowell, 132 187. 696. If the notice is duly served upon a selectman, his failure to notify the board is immaterial. Taylcr 8. Woburn, 130 494. 676 HIGHWAY, VI, (6), (V). 697 In the absence of the city clerk, the notice is sufficiently served by delivery to an assistant clerk. McCabe v. Cambridge, 134 484. 698. Where the injured person has been unable to leave his bed, but was not mentally affected, that does not present a case, where it was impossible ' ' to give the notice within thirty days," as contemplated in the statute. McNulty «. Cambridge, 130 275; Lyons v. Cambridge, 132 534. 699 The statute requiring notice applies to an infant. Madden •». Springfield, 131 441. 700. A father may give notice for an infant child, and notice may be given before a child's death, by a lather having the right of adminis- tration. Taylor ». Woburn, 130 494. 701. The notice is a condition precedent to the right of recovery, and cannot be waived by a town or city. Gay v, Cambridge, 128 387; Shea v. Lowell, 132 187; Lyon®. Cambridge, 136 419; Shallow v. Salem, 136 136. [As to variance between the notice and the proof, see, also, McDougall v. Boston, 134 149; cited, post, art. 718.] 702. The notice may be addressed to the clerk of the city, or, where the county is liable, to the county treasurer. Leonard v. Holyoke, 138 78; Lyman v. Hamphsire Co., 138 74. (7.) Pleadings and proceedings in the action; evidence; damages. 703. Qu., whether an action under the statute of 1877.is a local action. Osgood «. Lynn, 130 335. [See, also, Practice, I, (2).] 704. When notice has been duly given, the action is not premature, although brought within thirty days after the injury, and before there has been an opportunity for a town meet- ing- Harris ». Newbury, 128 321; Whit- man «. Groveland, 131 553. 705. The failure to allege a sufficient notice renders the declaration bad upon demurrer, Dickie ». Boston & A. Kailroad, 131 516. 706. And under the former statute, failure to allege that the town had notice of the defect, was a fatal defect in the declaration, which was not cured by verdict. Mower v. Leicester, 9 247; Worster v. Canal Bridge, (16 P.) 33 541. 707. Want of certainty in the description of the way, entitles the defendant to a more par- ticular description, but is cured by verdict. Bead «. Chelmsford, (16 P.) 33 128; Snow v. Adams, (1 C.) 55 443. 708. An allegation that the way was a "road," which it was the duty of the town to repair, suf- fices, without an express allegation that the de- fective part was within the town. Bead v. Chelmsford, (16 P.) 33 128; Stedman v. Southbridge, (7 P.) 34 162. 709. But the allegation that the defendant town failed to keep the way in repair, "at a. place near the house of A," is not so definite, that a failure to deny that the defendant was. bound to keep that spot in repair, admits its lia- bility, ti~der the practice act. Kellogg ». Northampton, (4 G.) 70 65. 710. It is not necessary that the length and breadth of the defect should be alleged. Snow v. Adams, (1 C.) 55 443. 711. A general allegation of want of repair is sustained by proof of a defect for want of a railing. Alger i>. Lowell, (3 A.) 85 402. 712. An allegation that there was a ditch or uncovered drain, running across the highway, is supported by proof of a water bar, with a deep rut, or "cradle hole," above it. Goldthwait v. B. Bridgewater, (5 G.Y 71 61. 713. An allegation that the plaintiff's horse,. for want of a sufficient railing, fell into a pond, and broke his shoulder, is supported by proof' that he broke his shoulder against the railing, before falling into the pond. Goldthwait v. E. Bridgewater, (5 GJ- 71 61. 714. An allegation that the injury was caused by a defect in the highway, imports that the plaintiff exercised due care; and so does an allegation that he was walking on the highway in a due and proper manner. May v. Princeton, (11 Met.) 52 442; Baymond e. Lowell, (6 C.) 60 524. 715. An allegation that the plaintiff was vio- lently thrown to the ground, is not sustained by proof that he leaped from his carriage to avoid an injury; but the objection must be taken before the case goes to the jury. Lund v. Tyngsboro, (11 C.) 65 653. 716. And if the action is tried upon the hypothesis that the plaintiff was thrown out, an instruction that the plaintiff may recover if he thus leaped, is erroneous. Lund v, Tyngsboro, (11 C.) 65 653. 717. The defendant may show that the plain- tiff was illegally travelling on the Lord's day, without pleading it. Jones v. Andover, (10 A.) 92 18. 718. A notice, under the statute of 1877, that, the injury was sustained by a fall upon a grat- ing, is not sustained by proof that he slipped upon ice, and did not touch the grating until he lost his balance, and fell upon it. McDougall e. Boston, 134 149. [For other cases arising upon the notice! before the amendment of 1882, see ante, VI, (6).] 719. Before the notice was requiredto be in writing, where one, whose son was killed and whose two minor daughters were injured, by a collision with a post in the highway, went to a selectman and said, that "it was hard to have a son killed and daughters almost killed by such a post," it was properly left to the jury how far this was a notice in behalf of the. daughters. Taylor «. Woburn, 130 494. HIGHWAY, VI, (7). 677 720 If no instruction is asked or exception taken at the trial, upon the question whether the driver of the vehicle exercised due care, the question is not open afterwards. Taylor v. Woburn, 130 494. 721. Where the defect consisted of a ridge of ice caused by melted snow descending upon a sidewalk, from higher adjacent land, evidence is admissible, in the discretion of the judge, of the height, slope, etc., of the adjacent land, 25 feet from the sidewalk, and 19 days after the .accident, there being no evidence of interven- ing change. Berrenberg v. Boston, 137 231 722. So as to the condition of the highway itself, after the accident, where there was no intervening change. Brooks v. Petersham, (16 G.) 82 181; George v. Haverhill, 110 506. But where there has been a change, such evi- dence should be rejected. Woodcock v. Worcester, 138 268. 723. And where the plaintiff was allowed to show the appearance, shape, and dimensions, of the ice, 17 and 19 days after the accident, although there was evidence of intervening storms and great changes of temperature, but the bill of exceptions did not state that it con- tained all the evidence, or the grounds upon which this evidence was admitted, or the in- structions to the jury, it was held that the defendant could not maintain an exception for the admission of this evidence. Berrenberg 1>. Boston, 137 231. 724. Where the injury occurred at 6 o'clock, Monday morning, evidence of the condition, at 7 o'clock on the previous Saturday evening, is admissible. Sheren «. Lowell, 104 24. [Upon the question of the admissibility of other like circumstances at other times, see, also, Daniels «. Lowell, 139 56; and other cases cited in Evi- dence, I, (3).] 725. And a witness may be asked how long a sidewalk, encumbered with ice and snow, had been in that condition. Smith v. Lowell, 139 336. 726. Where an injury occurred from an ob- struction, placed in the street in the morning, evidence that it was there during the preceding day, and was removed at night, is incompetent. Donaldson v. Boston, (16 G.) 82 508. 727. Evidence is inadmissible in defence, that other obstructions or defects of the same char- acter occur in other places. Bacon v. Boston, (3 C.) 57 174; Ray- mond v. Lowell, (6 C.) 60 524; Kidder v. Dunstable, (11 G.) 77 342; George «. Haverhill, 110 506. 728. But such evidence may be admissible, in connection with proof that the plaintiff, or •nis driver, knew the fact, upon the issue of due care. Raymond e. Lowell, (6 C.) 60 524; Packard v. New Bedford, (9 A.) 91 200; Hinckley e. Barnstable, 109 126;Schoon- maker v. Wilbraham, 110 134. I?29 ; Evidence that other persons have driven tiTV defective P!ace, is not admissible, either jo snow that it was not defective, or upon the "SMe of due care. Schoonmaker n. Wilbraham, HO 134. See, also, Aldrich v. Pelham, (1 G.) 67 510; Kidder v. Dunstable, (11 G.) 77 342. 730. So as to evidence on the part of the plaintiff, that another person was injured by the same defect. Collins v. Dorchester, (6 C.) 60 396. 731. So, where the defect is that the highway was so narrowed by obstructions, that the plain- tiff's carriage could not safely pass, as to evi- dence that other carriages were unable to pass. Merrill v. Bradford, 110 505. 732'. The depth of snow in the woods, on the day of the accident, is not competent upon the question as to the depth of the ice and snow in the highway. Brooks «. Acton, 117 204. 733. Upon the question whether the road was defective, a town committee's report, and the vote of the inhabitants thereupon, are not com- petent. Collins v. Dorchester, (6 C.) 60 396; Wheeler v. Framingham, (12 C.) 66 287. 734. Upon the question of the speed of the plaintiff's horse at the time of the accident, the defendant may show the rate of speed at which he was driven upon a race-course, before and afterwards. Whitney v. Leominster, 136 25. 735. Where the injury complained of was a fall over a gas pipe in the highway, a witness for the defendant, testifying as to the size, etc., of the pipe, may be asked, on cross examina- tion, what became of the pipe, where the ques- tion is admitted, not upon the issue whether it was an obstruction, but to explain the plaintiff's failure to produce accurate measurements thereof. Donnelly v. Pall River, 132 299 736. In an action against a city for an injury, caused by an accumulation on a crossing of snow and ice, the plaintiff cannot maintain an exception to the rejection of evidence of an ordinance, requiring occupants to clear the side- walks in front of their premises. Hayes «. Cambridge, 138 461. 737. The question whether the owner of the adjoining premises is liable over to the town, in case of a recovery against the town, is imma- terial. Purple ». Greenfield, 138 1. 738. Damages recoverable in an action against a town or city, for a defect in the highway, are for injury to person or property only, not for fright on account of a risk; but if an actual injury to the person is sustained, damages.must be allowed for mental suffering caused thereby. Canning v. Williamstown, (1 C.\ 55 451. [As to loss of services, medical expenses, etc., see HSrwood v. Lowell, (4 C.) S8 310, and upon all questtons connected with this subject, see Dam- ages, IV.] 739. Damages are not recoverable against a town for inability to travel upon a road, by reason of a defect or obstruction therein. Holman «. Townsend, (13 Met.) 54 297; Smith v. Dedham, (8 C.) 62 522. 678 HIGHWAY, VI, (7), (8); Vn. 740. Nor for inability to obtain convenient access to the highway. Smith D.Dedham, (8C.) 62 522. 741. Nor for trouble, expense, and loss of time, in endeavoring to extricate a sleigh and horses from a snow drift which obstructed the highway. Brailey v. Southborough, (6 C.) 60 141. 742. For rulings as to pleadings, computation of damages, etc., under St. 1786, Ch. 81, § 7, giving double damages, see Lobdell v. New Bedford, 1 153; Clark v. Worthington, (12 P.) 29 571 ; Worster ■v. Canal Bridge, (16 P.) 33 541; Han- num v. Belchertown, (19 P.) 36 311. <8.) Action where death has occurred. [St. 1881, Ch. 199, §§ 4, 5; P. S., Ch. 52, § 17. As to an indictment against a town for loss of life, through failure to erect barriers at a dangerous place, see Coram, v. Wilmington, 105 589, cited, ante, arts. 743. Where a woman, five months advanced in pregnancy, suffers a fall on the highway, and is by reason thereof permanently delivered of a child, who survives but a few minutes, such child is not a "person," for the loss of whose life an action may be maintained against the town by his administrator, under the statute. Dietrich v. Northampton, 138 14. VII. Powers, Duties, and Liabilities of a Surveyor of Highways. 744. St. 1871, Ch. 298; P. S., Ch. 52, § 3, put an end to road taxes payable in labor; but the sections indicating the extent and limits of the surveyors' powers were retained. Goddard ». Petersham, 136 235. 745. And now, as before, a voluntary pay- ment by a surveyor, for work done on the high- ways, does not give him a cause of action against the town. Goddard v. Petersham, 136 235. See, also, Jones v. Lancaster, (4 P.) 21 149; Loker ». Brookline, (13 P.) 30 343; Armstrong v. Wendell, (9 Met.) 50 522; Sikes e. Hatfield, (13 G.) 79 347. 746. A surveyor's power is the measure of his duty. Todd 0. Rowley, (8 A.) 90 51; God- dard v. Petersham, 136 235. See, also, Austin ». Carter, 1 231. 747. A person, who has been elected surveyor, cannot sustain an action against the town for money paid by him, without the direction of the selectmen, for labor upon the highways, be- fore his district has been assigned to him, al- though the work was done in a district subse- quently assigned to h'm. and was.less than the sum allowed for that district; and semble, that the subsequent ratification of his acts by the selectmen, does not vary the rule. Goddard v. Petersham, 136 235, overruling Emerson s. Newbury, (13 P ) 30 377. See, also, Todd v. Rowley, (8 A.) 90 51. v 748. Until each surveyor's district is assigned to him, the surveyors may act together, or by & majority of the board. McCormick B.Boston, 120 499. See, under the st. of 1786, Callender ». Marsh (IP.) 18 418. 749. A town which has duly chosen survey- ors, may nevertheless authorize the selectmen to contract for repairs on the highways. Hawks ». Charlemont, 107 414. 750. The duties of selectmen and highway surveyors are not incompatible, and the officers, may be the same. Benjamin v. Wheeler, (15 G.) 81 486; Bay State B. Co. v. Foster, 115 431. 751. A highway surveyor cannot recover compensation of the town for his official ser- vices. Sikes o. Hatfield, (13 G.) 79 347. 752. He cannot accept a way in behalf of the town. Reed v. Scituate, (5 A.) 87 120. 753. He cannot make repairs upon a way, which has been discontinued by order of the legislature, so as to render the town liable for defects therein. Tinker v. Russell, (14 P.) 31 279. 754. He may dig down or raise a street, with- out authority from the selectmen or the town, and the town is and he is not liable for dam- ages sustained thereby. Callender v. Marsh, (1 P.) 18 418; Mitchell v. Bridgewater, (10 C.) 64 411; Burr v. Leicester, 121 241. See, how- ever, as to the street commissioners in Bos- ton, Murphy v. Boston, 120 419. 755. As to his authority in a city, see Sisson ». New Bedford, 137 255. 756. He has no authority to expend any of the money committed to him for highway repairs, in constructing a new road. Todd v. Rowley, (8 A.) 90 51. 757. A surveyor who causes a water course to be conveyed by the side of a way, so as to incommode the plaintiff, without the approba- tion of the selectmen, is nevertheless not liable to an action; the remedy is by appeal to the selectmen; and although he acted unneces- sarily, or even wantonly and maliciously, still he is not liable if he had their approval. Elder v. Bemis, (2 Met.) 43 599; Benjamin v. Wheeler, (8 G.) 74 409; Benjamin «. Wheeler, (15 G.) 81 486. 758. And evidence that an act done by a sur- veyor, within his authority, was induced by an improper motive, is incompetent. Morrison v. Howe, 120 565; Dennis- ton v. Clark, 125 216. 759. A surveyor may remove earth and gravel from one part of the highway, to another within his jurisdiction, and Ms judgment as to the necessity of so doing is conclusive. Morrison v. Howe, 120 565. 760. His decision that a thing in the highway is an obstruction is conclusive. Morrison v. Howe, 120 565. HIGHWAY, VII— HOMESTEAD, I. 679 761 For additional statements and illustra- tions of the rule, that the surveyor's decision, ■within the limits of his authority, is conclusive, and he is not liable to an action for an act done in the exercise thereof, see Upham v. Marsh, 128 546; Johnson D.Dunn, 134 522. 762. He is not a servant of the town, and the town is not liable for an injury caused by a laborer employed by him. Walcotti). Swampscolt, (1 A.) 83 101; Johnson v. Dunn, 134 522. 763. He is not liable over to the town, for damages recovered against it for a defect in his district. White «). Phillipston, (10 Met.) 51 108. 764. In an action against a surveyor for tres- pass on the plaintiff's close, if the declaration describes the close as " bounded westerly by the road," proof that the plaintiff owned and occu- pied such a close, extending westwardly to the line of a travelled road, does not throw upon the defendant the burden of proving that the place was within the highway. If there is proof of a highway along the same general line, the word "road" will be construed to mean highway. ( Holbrook a.^fcBride, (4 G.) 70 215. 765. Where a surveyor takes stones from land laid out as a gravel and clay pit, and leaves stones on the highway and on the adjoin- ing land, he is not liable if his act was not wantonly done, and was reasonably necessary and incidental to the proper and convenient use of the pit. Hatch v. Hawkes, 126 177; and see this case cited more fully, ante, arts. 476 to 478. 766. A contract for repairs, to be binding on the town, must be made by the surveyors, or by agents expressly authorized by fie town; the selectmen have no power to make it. Clark e. Russell, 116 455. Hiring. [See Bailment, II.) Holiday. lifdftaitfs^AY'"" 518 AHD Pbomissobt Notb - Holyoke. 1. Water act, St. 1872, Ch. 62, construed. Pearsons e. Eanlett, 110 118. [See, also, Town and City, VI, (4).] Homestead. I. General Rules. n. Acquisition; Loss, ok other Termina- tion. HI. Rights op Creditors. «Md*m»t! fle ? t, ? t theuse ot the w< »a "home- SteST, q nraw tterm,inade ™ e ' 8eeBBVISB I. General Rules. 1 . The homestead right, under St. 1855, Ch. 238, does not differ in its nature from the home- stead right under St. 1857, Ch. 298, or G. S., Ch. 104; P. S., Ch. 123. Silloway v. Brown, (12 A.) 94 30. 2. But under the statute of 1885, a home- stead estate does not exist in land held in com- mon and undivided. Holmes «. Winchester, 138 542. 3. As to the effect of the successive acts re- lating to homesteads, upon rights acquired by a creditor or the householder and his family, under the preceding acts, see Woods v. Sanford, (9 GJ 75 16; Livermore v. Boutelle, (11 G.) 77 217; Clark*. Potter, (13 G.) 79 21; Wildes v. Vanvoorhis, (15 G.) 81 139; Johnson v. Pay, (16 G.) 82 144; Adams v. Jenkins, (16 G.) 82 146; Pittsfield Bk. ■e. Howk, (4 A.) 86 347; Howard v. Wilbur, (5 A.) 87 219; Castle v. Palmer, (6 A.) 88 401; Dulanty v. Pynchon, (6 A.) 88 510; Cowdrey v. Cowdrey, 131 186; Holmes v. Winchester, 138 542. 4. An estate of homestead is an estate of freehold, defeasible, during the life of the householder, only by deed in which- the wife, if any, or, if she is insane, her guardian, joins; or by acquiring a new homestead. Silloway v. Brown, (12 A.) 94 30; Kerleya. Kerley, (13 A.) 95 286; Wood- bury «. Luddy, (14 A.) 96 1; Abbott v. Abbott, 97 136. 5. The homestead right of a householder is an estate for life, and for the additional term of the continuous subsequent occupation, of his widow, and any of his minor children. It is secured to him, by law, for the common benefit of his wife and children, as well as himself; and is thus held by a distinct title, from that by which he holds any surplus or reversion of the same land, which may be alienated by him, or taken in execution by his creditors. Silloway v. Brown, (12 A.) 94 30. See, also, Smith v. Provin, (4 A.) 86 516. White v. Rice, (5 A.) 87 73; Doyle v. Coburn, (6 A.) 88 71. 6. The homestead estate of the wife, after her husband's death, does not depend upon the ex- istence of outstanding debts, and is in addition to her right of dower in his real property, and her allowance out of his personal property. Monk v. Capen, (5 A.) 87 146; Mer- cier v. Chace, (11 A.) 93 194; Silloway v. Brown, (12 A.) 94 30; Bates v. Bates, 97 392; Weller v. Weller, 131 446. 7. And she is entitled to have her dower as- signed to her out of the whole of her husband's real property, and then to have her homestead estate set off from the remainder. Cowdrey v. Cowdrey, 131 186. 8. It is so truly an estate in possession, dif- fering in that respect from dower, that it may be relied upon by the widow, without having been first set off to her, in answer to a writ of entry to recover the land. Parks c. Reilly, (5 A.) 87 77; Sillo- way ii. Brown, (12 A.) 94 30. 680 HOMESTEAD, I; II. 9. Upon the levy of an execution, by extent, upon the land, the amount of the homestead exemption, in the absence of any statute pro- viding otherwise, might be deducted from the appraised value of the land, thus leaving the judgment creditor and the owner of the home- stead, tenants in common. Silloway v. Brown, (13 A.) 94 30. See, also, Pittsfleld Bank v. Howk, (4 A.) 86 347; Castle ». Palmer, (6 A.) 88 401. 10. But the homestead estate differs from other estates in common, in not being an aliquot part of the land, but measured by value only, which may fluctuate. Richards v. Chace, (3 G.) 68 383; Silloway v. Brown, (12 A.) 94 30. 11. And where a homestead estate has been acquired in land, of greater value than the statutory limit, and the surplus has been alien- ated by levy under execution, or sale, the owner of the residue may maintain a writ of entry to recover the land, subject to the right of homestead, and the possession incident thereto. Castle v. Palmer, (6 A.) 88 401; Sil- loway v. Brown, (12 A.) 94 30; Steb- bins v. Miller, (12 A.) 94 591. 12. So where a mortgage does not convey the homestead right, a conditional judgment may be rendered in an action to foreclose it, so as to bar the equity of redemption, without dispossessing those in under the estate of home- stead. Doyle ». Coburn, (6 A.) 88 71. 13. The homestead estate may be set off on partition, like an ordinary estate in common; or it may be set off by commissioners upon a bill to redeem a mortgage. Pittsfleld Bk. «. Howk, (4 A.) 86 347; Silloway v. Brown, (12 A.) 94 30. 14. As to the respective rights of the owner of the homestead estate and his grantee of the Bill* D luS SG6 S'illoway t. Brown, (12 A.) 94 30. II. Acquisition; Loss, or othek Tekmiwa- nation. [See, also, ante, art. 4.1 15. A homestead right cannot be created in land, held by the claimant of the homestead in common with a stranger. Thurston v. Maddocks, (6 A.) 88 427; Silloway «.BrowD, (12 A.) 94 30; Bates v. Bates, 97 392; Howes e. Burt, 130 368. 1 6. Where a widow, entitled under the statute of 1855, to a homestead estate, first procures her dower to be assigned to her in the same land, and then conveys her interest, this extin- guishes her homestead right. Bates v. Bates, 97 392. 17. And where one, having a homestead right, conveys to another an undivided half of the land, by a deed in which his wife joins, thus barring the homestead right, he cannot acquire a new homestead right, by continuing to occupy the premises in common with the grantee. Howes «. Burt, 130 368, 18. But if the householder has a wife, his homestead estate is not lost by any act subse- quent to his acquiring it, unless it is released in accordance with the statute. Weller v. Weller, 131 446. 19. An assignment of dower, to the widow of one having a homestead right, of certain specific rooms in the house, and certain specific parcels of land, with rights of way, does not make her a tenant in common of the servient estate with the heir at law, and thus bar her homestead estate. Weller v. Weller, 131 446. 20. A deed, reciting a consideration received from Susan D., wife of Alexander D., and conveying the land to the said Susan D., "to be held by the said Dunham as a homestead," passes a homestead estate to the wife, and if, after she has obtained an absolute divorce from her husband, he continues to occupy it, she may recover possession from him by a writ of entry. Dunham v. Dunham, 128 34 21. A woman who has never been married and has no children, cannot have a homestead Woodworth «. Comstock, (10 A.) 92 425. 22. Held, under the statute of 1855, that a homestead estate might exist in a country tavern. Lazell ii. Lazell, (8 A.) 90 575. 23. The use by the owner, as a cattle pasture, of a tract of land two and one half miles from his homestead farm, does not except the cattle pasture from execution as part of the home- ' Adams v. Jenkins, (16 G.) 82 146. 24. But it is no objection to the existence of a homestead right, that it attaches to two par- cels of land, separated by lands of others. Davis «. Wetherell, (13 A.) 95 60. 25. A homestead estate, under a deed, does not relate back to the date of the bond for a deed, but begins at the time of the deed. Thurston v. Maddocks, (6 A.) 88 427. 26. Making and recording the declaration under the statute, and beginning to build a house on the land, is not sufficient to createthe homestead estate, and a temporary occupation, before the declaration, of a house on the land, will not suffice. Lee ®. Miller, (11 A.) 93 37. 27. The homestead estate is not limited to that portion of a dwelling house, occupied by the owner and his family; it may include the entire house, although some of the rooms are occupied by tenants. Mercier v. Chace, (11 A.) 93 194. 28. Where a mortgage and a deed are executed simultaneously, and as part of one transaction, the grantee does not acquire a homestead right as against the mortgagee. , New England Jewelry Co. «. Merriam, (2 A.) 85 390. I HOMESTEAD, II; in. 681 29. And where a mortgagee, who was in pos- session under an entry to foreclose, at the time of the enactment of the statute of 1855, dis- charged the mortgage, and took a new one, for tie same sum, and gave up possession, the mort- gagor did not acquire a homestead estate as against him. Burns «. Thayer, 101 426. 30. An estate described in the report of com- missioners to make partition, as a homestead, is presumed to he of the value of $800. Warren ». Greenwood, 121 112. 81. The probate court has no jurisdiction to set off to a widow a homestead estate, if the right thereto is disputed by heirs or devisees; and the dismissal of her petition in such a case, does not preclude her from otherwise maintain- ing and establishing her right. Lazell u. Lazell, (8 A.) 90 575; Woodward v. Lincoln, (9 A.) 91 239; Mercier i>. Chace, (9 A.) 91 242. 33. An insolvent debtor cannot have his homestead estate set off, after the assignee has conveyed his entire interest in the property. Silloway v. Brown, (12 A.) 94 30. 33. Upon the trial of a writ of entry, where the demandant is the general owner, subject to the tenant's homestead estate, which has not been set off to him, the burden of proof is upon the tenant to show, that the value of the property is such, that his homestead right covers the whole of it. Swan v. Stephens, 99 7. 34. A conveyance of land by a husband, with full covenants of warranty, or in fraud of his creditors, will not affect even his own home- stead right during bis wife's life; and a levy of an execution thereupon, with her consent, or without notice of the homestead ria-ht, will not defeat it. Connor e. McMurray, (2 A.) 84 202; Doyle v. Coburn, (6 A.) 88 71; Castle £ Palmer, (6 A.) 88 401; Silloway e. Brown, (12 A.) 94 30. 35. But a conveyance of a homestead and omer parcels, although not executed so as to pass the homestead, will convey the others. McMurray v. Connor, (2 A.) 84 205. J! 6- 4 w l fe does not J oi n in a deed for the pur- Sgtbedeed ng * n0mestead ' ^^elyexe- Greenough «. Turner, (11 G.) 77 332. to' a hh d „ a ***? wh ,° J oins in a deed . reciting wSlSr 8 f !? release her ri S hts ™der ™ homestead act, does not thereby release her Tirrel v. Kenney, 137 30. cute & e T' UYi ^ a homestead right, exe- ertv ^hl° f a 5 ^vMed half of the prop- vears iftlL 401 S . he does so accordingly five Wffla5jf w * is record| £ that Howes ji. Burt, 130 368. h/Lmort™^ 6 '^ °^ effect of a rel *ase homestSd flf m ^. Ub wife > of a11 ri S hts ° f fc*!fl , " bjeCt i! e homestead, with ^ditkr,nL the P r °P ert 7.to the mortgage; is no defence to a writ of entry to f ore- VOL. 1—86 close such a mortgage, that enough remains to satisfy it, without resorting to the homestead Swan v. Stephens, 99 7; Searle v. Chapman, 121 19. > 40. The homestead estate may be conveyed in the manner prescribed by the statute, or terminated by acquiring another homestead elsewhere; but if any other acts of abandon- ment suffice for that purpose, they must be such as afford unequivocal evidence of an in- tent to abandon it fully and completely Drury v. Bachelder, (11 G.) 77 214- Connor v. McMurray, (2 A.) 84 202 : Dulanty v. Pynchon, (6 A.) 88 510| Lazell v. Lazell, (8'A.) 90 575; Sillo- way v. Brown, (12 A.) 94 30. 41. And it has been held that a homestead estate, acquired under the statute of 1855, can- not be lost by mere abandonment, until a new homestead is acquired elsewhere. Woodbury v. Luddy, (14 A.) 96 1. 42. A homestead estate, under the statute of 1855, cannot be affected by the will of the householder; and semble, not by any convey- ance. Brettun «. Fox, 100 234. See, how- ever, Wilbur 11. Hickey, (8 G.) 74 432, criticised in this case, holding that a spend- thrift's guardian may convey. 43. The right of possession and enjoyment, after the householder's death, is in such only of his widow and minor children, as continue in possession; and if one of the children leaves the premises to reside with its guardian, the widow, remaining in possession, may maintain trespass against the guardian, for using part of the land for his ward's benefit. Abbott «. Abbott, 97 136. 44. The occupation, by a widow, of her dower estate in land, is not an occupation of the homestead estate; and if she removes to a house elsewhere, she ceases to have a homestead es- tate therein. Paul e. Paul, 136 286. 45. But it was held, under the statute of 1855, that if the widow continued to use, for the pur- pose of storing her furniture, a room in the house, she continues to occupy it, within the meaning of the statute. Brettun v. Fox, JA0 234. 46. If the widow leaves the premises, volun- tarily, with her husband, during his life, with no intention of returning, or leaves them, in like manner, after his death, her right is lost. Foster v. Leland, 141 187. HI. Rights op Creditobs. 47. A mortgage on a homestead, exempt un- der the statute of 1855, if made with intent to give a preference under the insolvent laws, is void against the mortgagor's assignee in insol- vency. Beals v. Clark, (13 G.) 79 18. 48. Creditors, whose claims accrued before the enactment of the homestead statute, are en- titled to have the whole amount of the proceeds of a sale of the homestead right, by the assigne e 682 HOMESTEAD, III— HOMICIDE, I; n, (1). in insolvency, applied to the payment of their demands, in preference to the general creditors, and to have dividends, with the other creditors, for the balance of their demands: and the amount realized from the sale of the reversion- ary interest, after the expiration of the right of homestead, is to he distributed among the gen- eral creditors. White v. Kice, (5 A.) 87 73. 49. Under the statute of 1855, a note given for the price of land could not be enforced against a homestead right therein. Thurston «. Maddocks, (6 A.) 88 427. 50. It is not a fraud upon creditors, or a viola- tion of the insolvent laws, for an insolvent debtor to give new notes in exchange for notes dated before the statute of 1855, for the purpose of extinguishing the old debts, and thus entitling himself to a homestead; but if he practices any concealment or deception upon the creditors, they may treat the new notes as renewals, and enforce them against the homestead right. Tucker v. Drake, (11 A.) 93 145. 51. A cause of action upon a current account is deemed to have accrued as early as the date of the last charge; and the homestead acquired thereafter is not exempt as against such an ac- count, although there are items of credit since the homestead was acquired. Thurston v. Maddocks, (6 A.) 88 427. 52. If the purchaser of a homestead, on the day of receiving his deed, borrows money, which he applies in part payment therefor, and afterwards executes a note for such money, the debt is deemed to have existed at the time of acquiring the homestead. Stevens v. Stevens, (10 A.) 92 146. 53. The liability of a principal to indemnify his surety, is a debt contracted, within the homestead statute of 1855, at the time when the debt was created, not when payment was made. Rice «. Southgate, (16 G.) 82 142. 54. A sheriff's sale on execution of the judg- ment debtor's equity of redemption, in property claimed by him to be exempt as a homestead, is not invalid, because not expressly made sub- ject to the homestead right. Swan v. Stephens, 99 7. 55. A mortgage of land, subject to a home- stead right, conveys the reversionary interest of the mortgagor, after the expiration of the home- stead estate, although his wife did not join therein. Smith v. Provin, (4 A.) 86 516. 56. Contra, nnder the statute of 1851. Richards «. Chace, (2 G.) 68 383. 57. So under the statute of 1855. Adams ». Jenkins, (16 G.) 82 146. Homicide. I General Rules. II. Murder and Manslaughter. (1.) Definitions, and illustrations. (2 ) Statutory degrees of murder. (3.) Trial; verdict. (4.) Evidence. [See, also. Conviction and Sentence ; Evidence- Medical Examiner. As to assault with intent to Mil, see Assault aivdBatterv, I; as to suicide, and aiding and abetting thereof, see Suicide. For hom- icide, caused by negligence of a common carrier, see Carrier, IV; by a defective way, see Highway VI, (8). As to the sufficiency and interpretation of an indictment for homicide, see Indictment. VILL (39).] ' ^ I. General Rules. 1. The statute does not define the crimes of murder and manslaughter, with their minute and carefully considered distinctions and quali- fications; for these we must resort to the com- mon law. Per Shaw, Ch. J., in Comm. v. Webster, (5C.) 59 295. 2. If a wound is inflicted, calculated to en- danger or destroy life, and death ensues there- from, this is sufficient proof of murder or man- slaughter; and the person who inflicted it is re- sponsible, although the deceased might have recovered, if he had had proper care, or taken proper care of himself; or unskilful or improper treatment aggravated the wound, and contribu- ted to the death; or the death was immediately caused by a surgical operation, rendered neces- sary by the condition of the wound. Comm. ■». Hackett, (2 A.) 84 136; Comm. v. Costley, 1 18 1. See, also, Comm. v. McPike, (3 C.) 57 181. 3. But if, after the wound was inflicted, another cause came in, which caused the death, independently of the wound, the prisoner can- not be convicted of homicide. Comm. v. Costley, 118 1. 4. A rioter cannot be convicted of homicide, by reason of the accidental killing of an inno- cent person by those suppressing the riot. Comm. v. Campbell, (7 A.) 89 541. 5. Senible, that the mortal stroke, or the ad- ministering of the poison, does not constitute the crime, unless the sufferer dies thereof within a year and a day, Per Parker, Ch. J. , in Comm. v. Parker, (2 P.) 19 550. 6. A person, publicly practising as a physi- cian, who prescribes with foolhardy presump- tion, or gross recklessness, a course of treat- ment to a patient which causes his death, may be convicted of manslaughter, although he acted with the patient's consent, and without evil intent. Comm. v. Pierce, 138 165, modify- ing Comm. v. Thompson, 6 134. II. Murder and Manslaughter (1.) Definitions, and Illustrations. 7. Murder is che killing of any person within the peace of the Commonwealth, with malice aforethought, either express, or implied by law Per Shaw, Ch. J., in Comm. ■». Webster, (5C.) 59 295. 8 Malice, in this definition is used in a tech- nical sense; it is not confined "to ill-will, but in-j HOMICIDE, II, (1). 683 ,ii«ta every unlawful and unjustifiable motive. Sting a heart regardless of social duty, and fatallv bent on mischief . f Ver Shaw, Ch. J., in Comm. «. Webster, '« f! ^ 59 293. See, also, Comm. v. g rew , 4 391; Comm. e. York, (9 Met.) 50 93. 9 Manslaughter is the unlawful killing of another without malice, and may be voluntary, although under circumstances of palliation; or involuntary, as where the death was occasioned ly an unlawful act, without an intent to take life ' Per Shaw, Ch. J., in Comm. v. Webster. (5C.) 59 295. 10. The characteristic distinction between murder and manslaughter is therefore malice, express or implied. The implication of mal- ice arises in every case of intentional homicide; and if tke killing is proved, all the circum- cumstances of accident, necessiy, or infirmity, must be established by the party charged, un- less they arise out of the evidence of the gov- ernment. Comm. v. Webster, (5 C.) 59 295. See, also, Comm. v. Drew, 4 391; Comm. «. York, (9 Met.) 50 93. 11. And where the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption is that it was malicious; hut where all the circumstances at- tending the homicide are in evidence, the bur- den is upon the Commonwealth to satisfy the jury that there was malice, in order to sustain a conviction of murder. Comm. v. Haw-kins, ,(3 G.) 69 463, explaining Comm. v. York, (9 Met.) 50 93. 12. A trespass against another's property, not his dwelling house, will not warrant the use of a deadly weapon in its defence, and killing the trespasser therewith, is murder; but if he dies of a beating, with an instrument and in a man- ner not likely to kill, it will be no more than manslaughter. Comm. v. Drew, 4 391. 13. So if one, under color or claim of au- thority, unlawfully arrests another, and the latter, in his resistance, kills the aggressor, it ■will be no more than manslaughter; and the same rule applies to a person, not a stranger, who aids the injured person. Comm. e. Drew, 4 391; Comm. «. Carey, (12 C.) 66 246; Comm. v. Mc- Laughlin, (12 C.) 66 615. 14. So if an officer undertakes to arrest, ■without warrant, one guilty of a misdemeanor, and the latter kills him while resisting the arrest, the offence was, before the G. S., only manslaughter. Comm. •». Carey, (12 C.) 66 246. 15. A deadly weapon is one likely to produce death or great bodily injury; and the question, 'whether a particular instrument is a deadly weapon, is for the jury. • Comm. v. Drew, 4 391. 16. An assault with hands and feet only, hastening the death of one enfeebled by dis- ease, will warrant a conviction of murder, if the prisoner knew, or had reasonable cause to IDeueve, that the person assailed was in such a feeble condition, that the assault would hasten death, or inflict great bodily harm; but not otherwise. Comm. v. Fox, (7 G.) 73 585. 17. If one furnishes another with a deadly weapon, with intent that he shall use it upon & third person, and a murder is committed with it, the person so furnishing it is aiding and abetting the murder, and equally guilty with the principal offender. Comm. «. Drew, 4 391. 18. Upon an indictment for manslaughter against three, where the judge instructed the jury, that if any one of the defendants took part in any act, which was the cause of the death, he could be convicted; but no defend- ant could be convicted, unless he took part in all the acts which caused the death ; the con- victed defendants have no ground of excep- tion. Comm. Macloon, 101 1. 19. Upon an indictment for the manslaughter of G, by shooting him with a pistol, where the evidence was that G made an attack upon the defendant, a ruling that if the defendant had reason to believe that G intended to do him great bodily harm, and that he was in danger of such harm, he would be justified in defend- ing himself by shooting G, if the defendant had reason to believe that no other means could effectually prevent such harm, is not or en to exception by the defendant, by reason of the qualification. Comm. v. O'Malley, . 131 423. 20. A man has no right to beat his wife, although she is drunken or insolent; and if death ensues from such beating, he is at least guilty of manslaughter. Comm. v. McAfee, 108 458. 21. Two or more defendants, indicted jointly for manslaughter with a knife, may be con- victed, although one only used the knife, if the others were present, aiding and abetting; or they may be convicted, some of the man- slaughter, and some only of an assault. Comm. «. Roberts, 108 296. 22. And an indictment for murder may charge the principal in the second degree as a principal in the first degree; for evidence that he was present, aiding and abetting, will sustain the charge that he committed the act with his own hand. Comm. v. Chapman, (11 C.) 65 422. 23. No provocation by words only, however opprobrious, will mitigate an intentional homi- cide, so as to reduce it to manslaughter. Comm. «. Webster, (5 C.) 59 295. 24. Malice is not the less malice aforethought, because the act is done suddenly after the inten- tion to commit the homicide has been formed; it is sufficient that the malicious intention pre- cedes and accompanies the act of homicide. Comm. v. Webster, (5 C.) 59 295. 25. For additional specifications and illustra- tions' of the difference between murder and manslaughter, see Per Shaw, Ch. J., in Comm. •». Webster, (5 C ) 59 295; Comm. «. Pemberton, 118 36. •684 HOMICIDE, II, (2), (3), (4). (2.) Statutory degrees of murder, 26. St. 1858, Ch. 154; G. R, Ch. 160, §§ 1, 2; P. S., Ch. 202, 8§ 1, 2, establishing and defining two degrees of murder, applied to an indict- ment to which the defendant had pleaded before its passage, and did not affect the jurisdiction of the court over such indictments; and § 6 of the st. of 1858 (§ 6 of P. S.) did not conflict with article 12 of the declaration of rights. Comm. v. Gardner, (11 G.) 77 438. 27. The st. of 1858 did not affect the techni- cal definition of murder, as previously estab- lished by the courts. Comm. n. Desmarteau, (16 G.) 82 1; Comm. v. Pemberton, 118 36. 28. Murder, committed with extreme atrocity oir cruelty, is murder in the first degree under the statute, although the atrocity or cruelty is not alleged or proved to have been premedi- tated. Comm. n, Desmarteau, (16 G.) 82 1. 29. Proof that the defendant, after enticing a .girl eight years old out of a house, ravished her, and then inflicted blows upon her head, find threw her into a river, for the purpose of Concealing the rape, will warrant a jury in find- ing him guilty of murder in the first degree, on the ground of extreme atrocity and cruelty, although the indictment alleges only the blows and drowning as the means of death. Comm. v. Desmarteau, (16 G.) 82 1. 30. So will proof that the defendant caused his wife's death, by beating and kicking her, and jumping and stamping upon her body, at Tepeated intervals during the day. Comm. v. Devlin, 126 253. 31 The statute is satisfied if the means were extreme, as compared with the ordinary means of producing death. Per Colt, J., in Comm. v. Devlin, 126 253. 32. The provision that murder, committed in the commission of or attempt to commit any crime, punishable with death or imprisonment for life, is murder in the first degree, includes every crime for which the offender is liable to be so punished. Comm. v. Pemberton, 118 36. 33. And where the purpose of the defendant "was to commit a robbery, and in order to over- come the resistance and silence the outcries of the victim, he used violence which caused her death, no further proof of premeditated or of wilful intent to kill is necessary, to warrant a conviction of murder in the first degree. Comm. d. Pemberton, 118 36. 34. The provision of the statute that the de- gree of murder shall be found by the jury, applies only to cases where the prisoner pleads not guilty generally, or not guilty of murder in the first degree, and does not prevent a sentence being given upon a plea of quilty. Opinionof the Justices, (9 A.) 91 585; Green v. Comm., (12 A.) 94 155. (3.) Trial; verdict. [See, also. Trial.] 35. The statute providing that where a wound is given, etc., in one county, and death occurs in another, the offence may prosecuted and punished in either, is not in conflict with the declaration of rights. Comm. v. Parker, (2 P.) 19 550; Comm. v. Costley, 1 18 1. 36. A conviction for murder may be had, under the statute, where the death occurred within one hundred rods of the county line, from a pistol fired in another county, more than one hundred rods from the line. Comm. v. Costley, 118 1. 37. The finding of a body, with marks of in- juries sufficient to cause death, in a river in the heart of a county, under circumstances showing that it must have been thrown there, is sui- ficient to warrant the jury in finding that the homicide was committed in that county. Comm. v. Costley, 118. 1. 38. Upon a doubtful question, as to the county in which the murder was committed, it is proper to instruct the jury, that if they think, that in case it was committed elsewhere, the defendant would have the means of showing that fact, they may consider the absence of any evidence upon that point. Comm. v. Costley, 118 1. See, also, Comm. ii. Harlow, 110 411. 39. A nonresident may be convicted, under the statute, of the manslaughter of one who dies within the Commonwealth, from injuries inflicted in a foreign vessel upon the high seas. Comm. v. Macloon, 101 1. 40. And this, although such injuries consisted of star vation and exposure, they being within the true construction of G. S., Ch. 171, 819; P. S., Ch. 213, § 23. Comm. v. Mcloon, 101 1. 41. On an indictment for murder, a verdict that the defendant is guilty of murder in the second degree, is a general verdict. Comm. ». Herty, 109 348. 42. Upon an indictment for murder, contain- ing several counts, varying only in the state! ment of the means of death, the jury may find a general verdict of guilty. Comm. «. Desmarteau, (16 G.) 82 1. 43. If an indictment charges the killing in one count, by a certain weapon, and in another count by instruments to the grand jury un- known, the jury may convict upon the latter count. Comm. v. Martin, 125 394. 44. It is no defence to an indictment for man. slaughter, that the evidence shows that the crime was committed with malice aforethought; and the defendant may be convicted of man- slaughter. Comm. v. McPike, (3 C.i 57 181. (4.) Evidence. [As to the competency of proof of other similar acts, see Evidence; I. (3): IX, (5); of dying declara- tions, see Evidence, I, (6). As to proof of insanity, see Evidence, III, (8); Lunatic, III; of intent and motive, see Evidence, IV, (7); IX, (t); of confes- sions and admissions of the defendant, see .evi- dence, VI, (6).] 45. An indictment for manslaughter, by striking the deceased upon her head, and HOMICIDE, II, (4). 685 rtrowine ber upon the floor, is sustained by S™f that the defendant struck her on the head with his hand, and that she was killed by strik- ing on a chair in her fall. Comm. v. McAfee, 108 458. 46 Proof " beyond a reasonable doubt," and Tiroof "to amoral certainty," as applied to a Mcial trial for a crime, are synonymous: each signifies such proof as satisfies the consciences and judgment of the jury, as reasonable men, and applying their reason to the evidence before them, that the crime charged has been com- mitted by the defendant, and so satisfies them as to leave no other reasonable conclusion possible. To this^xtent the burden of proof, as to all the facts necessary to constitute the offence, and that it was committed within the county, is upon the Commonwealth. Comm. d. Costley, 118 1. 47. For further specifications and illustra- tions of this rule, see Comm. v. Webster, (5 C.) 59 295; Comm. v. Tuttle, (12 C.) 66 502; Comm. v. Goodwin, (14 6.) 80 55; Comm. «. Cobb, (14 G.) 80 57. 48. Upon an indictment for murder of a woman with a pistol, it was held, that the de- fendant had no ground of exception to instruc- tions to the jury, that they may consider all tie evidence of the relations of the parties, upon the question, whether there was an engagement of marriage between them; that, although it is necessary for them to find every material fact separately, it is not necessary to separate the facts in finding, nor to detach one fact from another; that if they found that the defendant fired the pistol, that fact might be used, in con- nection with the other evidence, in finding the other facts involved, such as malice; and that if the prisoner was shown to be in any connec- tion with the transaction, which seemed to them to put into his possession facts, which, if inno- cent, he would use, and which he could use without going upon the stand himself, the with- holding of those means might be considered by them. Nor had he any ground of exception to a refusal to rule, that he was not bound to show where he was, during the time when the murder was committed; and that they should draw no inference from his failure so to do. Comm. v. Costley, 118 1. 49. Upon an indictment for manslaughter, where the deceased made the attack upon the defendant, the question, whether there was rea- sonable cause to apprehend great bodily harm, is a material issue; and any evidence upon this issue is competent, as that the deceased was a larger and more powerful man than the de- fendant. Comm. v. Barnacle, 134 215. See, also, Comm. v. Woodward, 102 155; Comm. v. O'Malley, 131 423. Comm. «• Mead, (12 G.) 78 167, overruled. .J ; But evidence of the general character of iJM i deceased, as a quarrelsome man, is inadmis- Comm. «. Hilliard, (2 G.) 68 294, ex- plained in Comm.®. Barnacle, 134 215. J?;, ^pe the widow of the deceased identi- cal uie prisoners as among the persons present *™™y, she cannot be contradicted by iwoi that her husband, three days after the affray, declared his ignorance who the parties were, and she made no answer. Comm. v. Bensmore, (12 A.) 94 535. 52. Upon an indictment for manslaughter, the record of a conviction of the defendant for the assault, which caused the death, is conclu- sive evidence that the assault was unjustifiable. Comm. v. Evans, 101 25. See, also, Comm. v. McPike, (3 C.) 57 181. 53. Evidence by the record of the proceed- ings in, and disposition of a divorce suit against the defendant, after the murder of a witness, is. inadmissible, where the defendant had threat- ened vengeance upon any one who should. testify against her. Comm. v. Madan, 102 1. 54. The provision for an autopsy, made by St. 1877, Ch. 200; P. S. Ch. 26, does not ex- clude other evidence of the condition of the deceased. Comm. e. Dunan, 128 422. [See Medical ExaminebJ 55. Where a defendant, indicted for the mur- der of a woman, contended that the crime was committed by her husband, it was held that it was in the discretion of the presiding justices, to admit or exclude testimony, as to threats and acts of unkindness by her husband towards her, three amd six years before the murder. Comm. v. Abbott, 130 472. 56. And where, upon an indictment for mur- dering a woman by poison, there was evidence that her licentious and intemperate life would account for the symptoms and her death, it was held that it was within the discretion of the pre- siding justices, to admit or exclude evidence of particular acts of drunkenness on her part, not connected with her death, or near the time thereof. Comm. «. Ryan, 134 223. [Upon this subject, see, also, Evidence, I, (3); IX, (5).] 57. Upon a trial for murder, the testimony of persons not experts is admissible, that hairsupon a club appeared to be human hairs, and resem- bled the hair of the deceased; but evidence by the defendant, that five months after the mur- der, there was hair on wood piles in the yard where it occurred, and that the yard had re- mained meanwhile in the same condition, is inadmissible. Comm. «. Dorsey, 103 412. 58. Where a manslaughter was committed in an affray late at night, after the deceased had been called out of bed, and the prisoners con- tend that they went to her house to get a drink, evidence for them is admissible, that the de- ceased had been frequently called up to sell liquor, and had made no objection. Comm. v. Densmore, (12 A.) 94 535. 59. Upon a trial for murder, evidence of the defendant's good character is competent in de- fence, although entitled to less weight, than, upon a trial for an offence of a lower grade. Comm. v. Hardy, 2 303; Comm. v. Webster, (5 C.) 59 295. 60 A defence upon a trial for murder, rest- ing upon the allegation, that the person sup- posed to have been murdered was seen alive, after the time when he is supposed to have been 686 HOMICIDE, II, (4)— HOUSE OF COERECTION. murdered, must be made out by satisfactory proof. Comm. v. Webster, (5 CO 59 295. 61. But where the defendant has introduced such testimony, the government cannot show, that at about the time of the alleged murder, a person, strongly resembling the person alleged to have been murdered, was seen in the neigh- borhood, although, perhaps, that person might properly be introduced as a witness. Comm. v. Webster, (5 C.) 59 295. 62. Where the defence is that the homicide was committed under an insane delusion, that the deceased and others were engaged in a con- spiracy against the defendant, the deceased's expressions of hostile feeling against the de- fendant, although not in his presence, are ad- missible, as tending to show some ground for the defendant's feeling. Comm. v. Wilson, (1 G.) 67 337. 63. Intoxication, at the time of a homicide, is not entitled to any weight, in determining whether the provocation was such, as to reduce the crime from murder to manslaughter. Comm. «. Hawkins, (3 G.) 69 463. Homine replegiando, writ of. [See Habeas Corpus.] Hoosac tunnel. [.See Corporation, X.] Hopkins fund. [See Hadley v. Hopkins Academy, (14 P.) 31 240.] Hopkinton lands. 1. An execution, levied upon Hopkinton lands, must be recorded in the Middlesex county registry of deeds, within three months after the levy. Foster ». Briggs, 3 313. 2. As to the liability of the tenants of Hop- kinton lands to pay rent to the trustees, under the statute of 1741, after the expiration of the provisions of the statute of 1787, directing the payment of the rents, in the first instance, to the treasurer of the Commonwealth, and by him to the trustees, after deducting the taxes, Adams v. Bucklin, (7 P.) 24 121; Opin. of the Justices, (7 P.) 24 125, note. Horse. . [As to the rights and liabilities of the owner or bailee of a horse, see Animal, II, (1) ; Bailment, II, (2). As to actions for injuries caused by horses, or for killing or injuring horses, see Carrier; Highway; Negligence; Bailroad. Forother rul- ings relating to horses, see the titles of the subjects respecting which the questions arose.] 1. In an action by the buyer of a horse against the seller, to recover for a false repre- sentation that the horse was safe, and not afraid of the cars, the facts that the horse was driven safely five weeks after the sale, and that, after being frightened by the cars, he ran three fourths of a mile, and. then turned from the highway to a place where he had been accus- tomed to stand, and in so doing overturned the carriage, are not conclusive evidence that the horse's vice did not cause the injury, but go to the jury. Allen v. Truesdell, 135 75. 2. Upon the question whether an injury io the plaintiff upon the highway, was caused by the running of the defendant's horse, if the plaintiff puts in evidence that the horse was frightened and ran away, a year and a half before the accident, the defendant may show by experts, that a horse, which has not run since it was frightened a year and half previously, requires no special care in its management. Donnelly v. Fitch, 136 558. 3. Damages for the breaking of the plaintiff's wagon, etc., in consequence of the unkindness of a horse sold to him by the defendant, can- not be recovered in tort for a breach of war- ranty of kindness, which the defendant knew to be false. Case v. Stevens, 137 551. Horse race. [See Betting and Gaming.] Horse railroad. [See Street Railroad.] Hotel. Honse. [See Inn and Innkeeper.] [See Arson; Boundary; Burglary; Covenant; Easement. As to where a house Is personal prop- erty, see Fixture; Personal Property.] House breaking. [See Burglary.] House of correction. [See, also, Conviction and Sentence, m.1 _ 1. An inclosed yard, used solely in connec- tion with a house of correction, is adjoining or appurtenant thereto, within the statute relating to escapes. Comm. v. Curley, 101 24. [See Escape, n.] _ 2. A prisoner, confined in a house of correc- lion, cannot maintain an action against the HOUSE OF OOEEECTION— HUSBAND AND WIFE, I, (1). 687 taster, for neglect to provide for him sufficient food clothing, and fires, if he is kept in the usual way, an: 1 , there is no evidence of express malice, or gross negligence which authorizes an inference of malice. Williams v. Adams, (3 A.) 85 171. 3. The master may employ a person to sell the articles manufactured by the prisoners; and if he employs and pays a county commissioner, the money cannot be recovered back by the county. Bristol Co. ii. Gray, 140 59. 4 A mandamus lies to compel the proper officers to provide a house of correction, dis- tinct from the jail. Comra. v. Hampden Sessions, (2 P.) 19 414. 5. For rulings under f orme'r statute, relating to houses of correction, see As to an action by the master against a town, •under St. 1787, Ch. 54; St. 1802, Ch. 22, § 2; and St. 1826, Ch. 142; for the keeping, etc., of a prisoner. Wade».Salem, (7P.) 24 333; Boston t>. Westford, (12 P.) 29 16. Under St. 1834, Ch. 151, § 10; and R. S., Ch. 143, § 16. Robbins v. Weston, (20 P.) 37 112. As to an allowance by the court of common pleas to the keeper or master of a house of correction, united in one building with the jail, for his servces and the support of prisoners. Day s.Hampden, (11 Met.) 52 379. As to the effect of the repeal of R. S., Ch. 143, § 26, directing payment to convicts, upon their discharge, of the surplus proceeds of their labor. Williams o. Middlesex, (4 Met.) 45 [As to the liability of individuals and towns, for tne support of poor convicts, under the existing statute, see Poor, II, (7).] Bouse of ill fame. [See Bawdy House; Indictment, VHI, (10).] House of representatives. ^feCoNSTiTCTioNAi, Law, III, (2); General Husband and wife. I Marriage. (1.) Sufficiency; evidence, (2.) Void and voidable marriages. II Hu8BA m's R IGHTS AND Liabilities. (!•) His personal rights. (3.) His common law rights in the wife's P'oprty, or their joint property. stair 8 ri§lltS ™ der ' or as ■ff"*'* "7. «* (*■) His liabilities. III. Wife's Rights, Disabilities, and Lia- bilities. (1.) At common law and in equity. (2.) Doing " business" under the statute. (3.) Other statutory property rights and lia- bilities. IV. Conveyances, Contbacts, and other Transactions, between Husband and Wife. (1.) Conveyances and other transfers. (2.) Contracts generally. (3.) Contracts for, or in consideration of, separation. (4.) Actions and other proceedings between them ; other matters. V. Antenuptial Agreements; Marriage Settlements. VI. Civil Proceedings by, or against, Husband or Wdje. VII. Criminal Proceedings against Hus- band or Wife. [As to theexeeution of a deed by a married woman, see Deed, I. As to her share in her deceased hus- band's personal property, see Descent and Distri- bution , I ; Executor and Administrator, III, (2) ; VII, (2); Widow. As to her will, see Will, I, (1). As to her rights in real property of her husband, see, also, Dower; Homestead; Widow. As to agree- ments, provisions, or other matters, which bar her dower or other interest, in her deceased husband's realand personal property,see Widow, III. As to the competency of husband or wife to testify, see Wit- ness, II, (3). As to divorce, see Divorce. As to a husband and father's liability under the poor laws, for the support of his family, see Poor, I, (2). As to the wife's right of action against one selling in- toxicating liquor to her husband, see Intoxicating Liquors, IV. For other matters pertaining to the subject or husband and wife, see Agency; Adult- ery; Bankruptcy; Criminal Conversation; Curtesy; Devise and Bequest; Equity Jurisdic- tion ; Fraud ; Insolvent ; Insurance ; Mort- gage; Parent and Child; Polygamy.] I. Marriage. [As to the sufficiency and validity of a foreign marriage, see Conflict ge Laws, III, (3). For ad- ditional or analogous esses, see Adultery; Crimi- nal Conversation; Divorce; Polygamy.] (1.) Sufficiency; evidence. 1. In Massachusetts, from very early times, the requisites of a valid marriage have been re- gulated by statutes of the colony, province, and !ommonwealth ; the canon law was never adopted; and it was never received here as com- mon law, that parties could, without the pres- ence of an officiating clergyman or magistrate, or one believed by the parties to be such, take each other as husband and wife, and so marry themselves, except in the single case of Quakers or Friends, whose marriages are validated by special provision, when witnessed, recorded, and returned, as the statute requires. Comm. v. Munson, 127 459. See, also, Mangue v. Mangue, 1 240; Milford v. Worcester, 7 48; Medway v. Need- ham, 16 157; Comm. v. Spooner, (1 P.) 18 235; Meyers v. Pope, HO 314; Thompson v. Thompson, 114 566. 688 HUSBAND AND WIFE, I, (1), (2). 2. For a history of the legislation of Massa- chusetts, on the subject of marriage, from 1639 to the present time, see Comm. v. Munson, 127 459. 3 Where a man and woman went to a room, where a justice of the peace happened to be, and in his presence, and before other witnesses, after producing a certificate of publication of intention, declared that they took each other for husband and wife, it was held that the validity of the marriage depended upon the question, whether the proceeding had the sanction of the justice, as a magistrate. Milford v. "Worcester, 7 48. 4. In an action for the seduction of the plaintiff's wife, proof that the plaintiff and the womanwent together before a justice of the peace, in his town, and in the county where both the parties resided, with intent to contract marriage; that the plaintiff stated, in the pres- ence of the justice, that he took the woman for his wife; and that they afterwards cohabited as husband and wife, botli believing that they were lawfully married; will authorize the jury to find a marriage, although the justice testifies that he did not understand that he then married them. Meyers v. Pope, 110 314. 5. For rulings as to when a Baptist or Me- thodist minister is deemed to be sufficiently or- dained and settled, to render a marriage by him valid, under St. 1786, Ch. 3, § 1, see Comm v. Spooner, (1 P.) 18 235. 6. A marriage between infants is valid, if the male is over fourteen, and the female over twelve years of age, although the magistrate is liable to a penalty for solemnizing it, without the consent of parents or guardians. Parton «. Hervey, (1 G ) 67 119. See, also, Milford ». Worcester, 7 48; Hervey v. Moseley, (7 G.) 73 479. 7. St. 1840, Ch. 84; St. 1841, Ch. 20; G. S., Ch.. 106, § 22; P. S., Ch. 145, § 31, do not re- quire that the evidence of repute, etc., to estab- lish a marriage should come from members of the family: any person knowing the facts may prove them. Knower v. Wesson, (13 Met.) 54 143. 8. A certificate of a marriage, solemnized elsewhere by a clergyman resident there, but not authenticated in any manner, is not evi- dence under those statutes, although derived from the possession of the wife of the defend- ant, indicted for adultery. Comm. v. Morris, (1 C.) 55 391. 9. Those statutes apply to a writ of right, when the demandant's marriage is in question. Means i>. Welles, (12 Met.) 53 356. 10. They apply to repute, etc., in a foreign country. Comm. «. Johnson, (10 A.) 92 196. 11. They include the defendant's own admis- sions. Comm. v. Holt, 121 61. 12. Upon an indictment for the "unlawful sale of intoxicating liquors, evidence of sale by a woman, who occupied the same bed with the defendant, and was seen attending to house- hold duties in his house, is competent to prove a sale by his wife. Comm. v. Hurley, (14 G.) 80 411. 13. Upon an indictment falsely to cause the marriage of A and B to appear of record, the testimony of A that he was never married to B is competent. Comm. v. Waterman, 122 43. 14. Upon a question of settlement, a record of a marriage, solemnized by a minister or a justice of the peace, founded upon a certificate duly made, is sufficient without further proof. Milford v. Worcester, 7 48. 15. Before the statute of 1840, reputation and cohabitation were competent evidence of mar- riage, upon a question of settlement. Newburyport v. Boothbay, 9 414; Means v. Welles, (12 Met.) 53 356. 16. But not upon an indictment for adultery. Comm. ■». Littlejohn, 15 163. See, also, Comm. «. Norcross, 9 492. 17. Upon a libel for divorce, the respondent's second marriage could not be proved by the minister's certificate, but only by witnesses under oath. Ellis v. Ellis, 11 92. 18. A man married A in 1836, and left her in 1863, and, after living with B as his wife till she died, in the same year, in 1864 married C. In 1866 A died. In 1867 he married D; and she left him a year afterwards, he claiming that C was his wife; and h'e went back to C, and lived with her many years as his wife. In 1880, he being yet alive, D married another man. It was held that there was no presumption of law, in favor of innocence, that would render D's second marriage presumptively valid. Randlett «. Rice, 141 385. [For other rulings as to marriages, arising upon questions of settlement, see Poor, III.] <2.) Void and voidable marriages. 19. A marriage is void, where either party's husband or wife is living, although he or she has been absent, and not alive to either party's knowledge, for seven years ; and, although contracted in good faith, it may be declared void by a sentence of nullity, with the clause provided in the statute to save the children's legitimacy. Glass v. Glass, 114 563. 20. If the former husband or wife has been absent and unheard from for less than seven years, the second marriage is presumptively void. Hyde Park v. Canton, 130 505. See, also, Comm. «. Thompson, (6 A.) 88 591; Comm. v. Thompson, (11 A.) 93 23. Also, Adultery; Evidence, IV, (5). 21. The court may declare a marriage void, into which the plaintiff entered, believing that the woman was chaste, when she vas with child by another man, if he repudiated her as soon as he had reason to know the fact; and it is not necessary, in order to sustain the petition, to show that she expressly represented herself to be chaste. Reynolds «. Reynolds, (3 A.) 85 605; Donovan e. Donovan, (9 A.) 91 140. 22. But a marriage will not be declared void on the ground of fraud, except upon the most HUSBAND AND WIFE, I, (2); II, (1), (2).* 689 denary and satisfactory proof of imposition, as to matters constituting the essentials of the '^Reynolds v. Eeynolds, (3 A.) 85 605; Foss a Foss, (12 A.) 94= 26. 23. And if a man marries a woman, knowing her to he with child, and with whom he has lad sexual intercourse, upon her assurance that the child is his, and without suspicion that she has had sexual intercourse with another, he cannot have the marriage declared void, although in fact the child was begotten by another man. Foss o. Foss, (12 A.) 94 26. 24. So where she is pregnant with a child not hegotten by him, and he marries her on the faith of her assurance that she is not pregnant, he having previously had sexual intercourse if ith her. Crehore v. Crehore, 97 330. 25. A marriage with one so void of under" standing, as to be incapable of making a con" tract, is absolutely void. Middleborough v. Rochester, 12 363; Anonymous, (4P.) 21 32. 26. The fact that the party charged to have been non c&m/pos mentis, was able to go through the marriage ceremony with propriety, is prima fade evidence of sufficient understanding to make the contract. Anonymous, (4 P.) 21 32, 27. St. 1845, Ch. 222; G. S., Ch. 107, § 2; P. S., Ch. 145, § 9, providing that a marriage shall not be questioned collaterally upon an allegation of insanity or idiocy, applies to mar- riages contracted before its passage. Goshen v. Richmond, (4 A.) 86 458. 28. A marriage in New Hampshire between a man and his mother's sister's daughter is absolutely void, under the statute of that state, ■without a judicial sentence. Blaisdell v. Bickum, 139 250. 29. Upon an issue of the validity of a mar- riage, evidence that it was matter of common report, that the woman's former husband had been killed, is inadmissible. Blaisdell v. Bickum, 139 250. II. Husband's Rights and Liabilities. (1.) His pergonal rights. (feifeSSSY* CoimsBSATION ; PABBNT ^ ■it! ; \ 1 "J sb ? nQ has no right to beat his wife although she is drunken and insolent, and if, in maX±L klUsher ' he is ^J- at !«<*. «* Comm. v. McAfee, 108 458. hv\ $ 5 US * a . nd ' whose wife has been injured M™ ln the highway, cannot recover XL e town for medical or other expenses soared, or the loss of her services. Garwood ». Lowell, (4 C.) 58 310. uJiiA- lms t? , ? d cannot maintain an action ,ZlWh . Wlf ?? s on-in-law, for enticing away i«M harboring his wife, merely upon proof that Vol. 1—87 that the defendant suffered the wife to live in his house, after the plaintiff had forbidden it. Turner v. Estes. 3 317. 33. In an action by a husband for enticing away his wife, the defendant has no ground of exception to an instruction to the jury, that if the defendant's conduct was the controlling cause, which induced the wife to leave her hus- band, the action will lie, although other causes contributed thereto; or to a refusal to instruct them that the action will not lie, if the plaintiff 's cruelty contributed in causing her to leave. Hadley ». Hey wood, 121 236. 34. A husband may release damages for the personal abuse of his wife, and such a release is a good bar to a joint action by them therefor. Southworth v. Packard, 7 95. 35. It is a husband's right and duty to bury his deceased wife. "Weld v. Walker, 130 422. 36. And if the husband is absent, or has driven the wife away, one, who pays the ex- penses of the funeral, may recover them from him, although they were incurred without his assent. Per Bigelow, J., in Lakin v. Ames, (10 C.) 64 198, see p. 221; Cunningham*. Reardon, 98 538. 37. Where ha has not agreed that his deceased wife's body shall remain permanently in anoth- er's land, where it was buried, he may remove the body, coffin, and tombstones, and a court of equity will aid him in so doing. Weld i). Waiker, 130 422. 38. And where he has buried her body in a public cemetery, he has a right to remove a head- stone, placed at her grave by her mother. Durell v. Hayward, (9 G.) 75 248. 39. The husband of an infant succeeds to the, place of her guardian, and his sale of trees on her land passes a good title. Bartlett v. Cowles, (15 G.) 81 445. (2.) His common law rights in the wife's property, or their joint property. [See, also, post, III ,(1); Curtesy; Homestead.] 40. At common law, marriage is an absolute gift to the husband of all the wife's chattels in possession; and, also, of her choses in action, if he reduces the latter to possession during the marriage, but not otherwise. Legg ». Legg, 8 99; Howes v. Bige- low, 13 384; Stanwood v Stanwood, 17 57; Hayward ». Hayward, (20 P.) 37 517. 41. And a note payable to a married woman, or to a third person for her use, is payable to her husband, who can alone enforce or dis- charge it. and after his death, it goes to his ex- ecutor or administrator. Shuttlesworth v. Noyes, 8 229; Dean c. Richmond, (5 P.) 22 461; Comm. ». Stanley, (12 P.) 29 173; Wilbur*. Crane, (13 P.) 30 284. 42. A note and mortgage, made to husband and wife during the coverture, survive to the wife upon the husband's death; otherwise, if HUSBAND AND WIFE, II, (2) they are a mere voluntary gift, by which his creditors may be defrauded. Draper ». Jackson, 16 480. 43. Money in the wife's hands at the hus- band's death, earned and received by her before the marriage, or given to her afterwards, goes to his administrator. Washburn?). Hale, (10 P.) 27 429. 44. A legacy to a wife vests, at common law, absolutely in her husband, who may re- lease it, either before or after it is payable; and so of her distributive sharo in an intestate's estate. And either may be attached at the suit of his creditor. Comm. ■». Manly, (12 P.) 29 173; Hol- brook v. Waters, (19 1-.) 36 354; Hay- ward v. Hayward, (20 P.) 37 517; Wheeler v. Bowen, (20 P.) 37 563. 45. But the attachment will not divest the wife's right of survivorship, if the husband dies before judgment. Strong v. Smith, (1 Met.) 42 476. 46. And although the legacy includes choses in action, it vests in him absolutely, and upon her death he takes it by survivorship, although he has done nothing to reduce it to possession. Albee *. Carpenter, (12 C.) 66 382. See, also, Hapgood v. Houghton, (22 P.) 39 480. 47. If the husba d dies before reducing to possession his wife's distributive share, it sur- vives to her. Hayward v. Hayward, (20 P.) 37 517. 48. As to the power of a court of equity, to require a suitable provision to be made for the wife, out of her property, see Sawyer v. Baldwin, (20 P.) 37 378; Davis v. Newton, (6 Met.) 47 537. 49. Where a husband's note was bequeathed to his wife, and he afterwards paid it to the executor, he could recover back the money. Howe ». Bemis, (2 G.) 68 205. 50. So money due from him, thus bequeathed, vested absolutely in him, although he was ap- pointed executor. Peirce v. Thompson, (17 P.) 34 391. 51. And a husband had a vested equitable interest in personal property, bequeathed to his wife, upon condition of her surviving one to whom it, or the income thereof, was given for life, which could not be taken away by a stat- ute, passed before the contingency happened. Dunn v. Sargent, 101 336. See, also, Gardner v. Hooper, (3 G.) 69 398. 52. Household furniture, belonging to a woman, became, upon her marriage in 1844, her husband's property. Edgerly v. Whalan, 106 307. 53. Before St. 1855, Ch. 304, the earnings of the wife's personal labor, even while living apart from her husband, were his property, and he might recover them from her assignee, with- out value. McKavlin «. Bresslin, (8 G.) 74 177. 54. So of money deposited in a bank by her; and his creditors might reach it, although he made no claim upon it, and his wife afterwards obtained a decree of absolute divorce. Ames v. Chew, (5 Met.) 46 320. 55. So of a chattel bought by her with her earnings. Gerry v. Gerry, (11 G.) 77 381. 56. The rule was the same, although the hus- band lived in adultery with another woman, and the wife carried on a separate trade in another town. Russell v. Brooks, (7 P.) 24 65. 57. The rule is still the same, as to money earned by the wife in another state, where the parties were married and resided, in the absence of proof of any law of that state, varying the rule of the common law. Coombs v. Read, (16 G.) 82 271; Woodcock v. Reed, (5 A.) 87 207. 58. As to the effect of a law in the other state, providing that a husband becomes a trustee of his wife's choses in action, see Mason v. Homer, 105 116. 59. For other rulings as to the effect of par- ticular acts, upon the question of reduction to possession, and the rights of the husband's creditors respecting personal assets of the wife, eee ) ) Stanwood ». Stanwood, 17 57; Dan- iels v. Richardson, (22 P.) 39 565; Smith v. Chandler, (3 G.) 69 392; Howard v. Bryant, (9 G.) 75 239; Crit- tenden «. Alexander, (15 G.) 81 432; Alexander v. Crittenden, (4 A.) 86 342; Turner «. Nye, (7 A.) 89 176; Dunn v. Sargent, WOl • 336; Bridgman v. Bridg- man, 138 58. 60. Money paid by a married woman before 1855, upon a bond to convey land to her, was prima facie her husband's property, and he might have recovered it back upon offering to surrender the bond. Casey v. Wiggin, (8 G.) 74 231. See, also, Croft «. Wilbur, (7 A.) 89 248, cited, post, art. 79. 61. A conveyance of land in fee to a husband and wife, before the statute of 1855, conveyed an estate by the entirety, of which his lease was good against the wife during the coverture; and such a lease determined the rights of a person, holding as tenant at will or licensee of the wife. Pray v. Stebbins, 141 219. 62. Where land devised to a female infant was sold under license of the court, and she afterwards married, and died under age, the proceeds were personal property, and went to her husband. Emerson v. Cutler, (14 P.) 31 108. 63. So of damages paid for her land taken for a highway. Emerson v. Cutler, (14 P.) 31 108. 64. At common law, a husband acquires by marriage a freehold estate in his wife's lands, and a right to regulate them, and to take the rents and profits. Bartlett v. Cowles, (15 G.) 81 445. 65. And although the rents and profits were not reduced to possession by him, they did not survive to the wife. Clapp v. Stoughton, (10 P.) 27 463. 66. But if land, in which she has a life estate, is leased by her for her life, before her mar- riage, without a clause for re-entry, the rents HUSBAND AND WIFE, II, (2), (3), (4). 691 and profits were mere personalty, and survived m her unless reduced to possession. Daniels «. Richardson, (22 P.) 39 565. 67 A husband's right in his wife's land might be levied upon by his creditors, either by taking the i cuts and profits for a definite period, nr hv taking the estate at an appraisal. 7 Litchfield «. Cudworth, (15 P^ 32 23; qualifying Barber v. Root, 10 260, and Chapman i>. Gray, 15 439. 68. Husband and wife were jointly seized of her real property in fee, and an ouster by a stranger was a disseisin of both. Melvin v. Locks & Canals, (16 P.) 33 181. 69. In a case where by law the right of action ■would survive to the wife, it was necessary that they should be joined as plaintiffs. Clapps. Stoughton, (10 P.) 27 463; Cushing o. Adams, (18 P.) 35 110; Thacher v. Phinney, (7 A.) 89 146. 70. But where it would not survive to her, {he husband alone must have sued, although it arose out of her property. Hill v. Davis, 4 137; Goddard v. Johnson, (14 P.) 31 352; Hapgood «. Houghton, (22 P.) 39 480; Sutton «. Warren, (10 Met.) 51 451; Gerry c. Gerry, (11 G.) 77 381. 71. Trespass for cutting trees on the wife's land might be brought by him only, or by both jointly, at his election. , Allen v. Kingsbury, (16 P.) 33 235. See, also, Adams v. Barry, (10 G.) 76 381. 72. Husband and wife could not join in an action for an injury to her, per quod sermtiwm mnisit; and if such a count was joined with one alleging only her personal injury, judg- ment would be arrested. Barnes v. Hurd, 1 1 59. 73. Nor could they join in an action for a joint slander on both. Gazynski v. Colbum, (11 C.) 65 10. 74. If, pending an action by both, for a debt due to her when sole, she dies, he may continue to prosecute as her administrator. Pattee «. Harrington, (11 P.) 28 221. (3.) His rights under, or as affected Dy, the statutes. 75. Personal apparel, furnished by a husband to his wife, or purchased by her with his con- sent, from money gained by their joint earnings, remains his property; and she cannot maintain an action against a carrier for the loss thereof. Hawkins v. Providence & W. Railroad, Co., 119 596. aw"' -P ne summcn ed as a trustee is not charge- ™. because he was the debtor of the defend- ants deceased wife. Chick «. Agnew, 111 266. 77. Where a wife places in her husband's Bands, money which is her separate property, tne presumption, in the absence of evidence that he received it in trust for her, is that he can use it as his own. Jacobs v. Hesler, 113 157. 78. St. 1874, Ch. 184, § 1; P. S„ Ch. 147, § 4, declares a conclusive presumption of law, which defeats a husband's claim for compensa- tion for his wife's services for another, although she began to work for the defendant before the passage of the statute, in the absence of evi- dence of an express agreement. Williams ». Williams, 131 533. 79. If a married woman has used her hus- band's money, without his consent, to pay for land conveyed to her, he cannot maintain an action therefor against the grantor, without offering to reconvey his interest. Croft v. Wilbar, (7 A.) 89 248. 80. Where a farm was conveyed to a married woman in 1858, and paid for, partly by her funds, and partly by the note of her husband and herself, and they lived and worked thereon, and he made some improvements thereon ; and after the passage of the statute of 1874, she sold it and received the price, there having been no issue of the marriage; it was held that he had no lien or claim upon the land, to entitle him to maintain a bill to prevent the purchaser from taking possession, or' for reimbursement for his improvements or labor. Libby v. Chase, 117 105. (4.) His liabilities. [See, also. Poor, 1, (2).] 81. A husband is not liable, after his wife's death, for a breach of any covenants of her an- cestor, although she has inherited personal es- tate, which has come to his possession. Qu., whether they would be jointly liable in her life- time. Howes v. Bigelow, 13 384. 82. Where a nonresident woman, after pro- curing, at her own domicil, a discharge in in- solvency, which exempted her future husband from liability for her debts, married there a citizen of Massachusetts, and removed here, it was held that her husband was not liable for her debts Pitkin t>. Thompson, (13 P.) 30 64. 83. If a female plaintiff marries pendente lite, an execution for costs cannot be issued against her husband, but scire facias or debt therefor lies against both. Haines ». Corliss, 4 659. 84. In an action against husband and wife, for a libel by her, smaller damages are not to be given, than if she was a single woman. Austin v. Wilson, (4 0.) 58 273. 85. A husband is liable for the debts of his wife, in the prosecution of business, on her sep- arate account, under the G. S., if neither of them files the certificate required by St. 1862, Ch. 198; P. S., Ch. 147, § 11. Feran v. Rudolphsen, 106 471. 86. St. 1874, Ch. 205; P. S., Ch. 147, § 33, as to compelling a husband to support his wife, is constitutional. Bigelow v. Bigelow, 120 320. 692 HUSBAND AND WIFE, II, (4). 87. Under St. 1871, Oh. 312, (see P. S., Ch. 147, § 9), a husband is not liable, in tort, for his wife's interference with an easement over her land, unless he aids and abets her Austin J). Cox, 118 58. 88. So, also, he cannot be joined with her in an a tion for any tort committed by her. McCarty ®. De Best, 120 89. See, also, Hill ®. Duncan, 110 238. 89. An action did not lie against husband and wife, upon their joint promissory note, given for his debt; but the plaintiff might discontinue against her, and proceed against him alone, upon payment of costs. Harrington v. Thompson, (9 G.) 75 65. 90. It is the duty of a husband to make suit- able provision for his wife; and if he neglects so to do, she has a right to procure, upon his credit, such necessaries as it is his duty to supply to her. Hall v. "Weir, (1 A.) 83 261; Raynes B.Bennett, 114 424; Alley®. Winn, 134 77. 91. Whatever tends materially and reasonably to relieve distress, or materially and in some essential particular to promote comfort, either of body or mind, may be deemed to be a neces- sary. Conant v. Burnham, 133 503. 92. Necessaries, as applied to a wife, are not merely articles of food and clothing, required to sustain life or preserve decency, but include such articles of utility as are suitable to main- tain her according to the estate and degree of her husband. Raynes v. Bennett, 114 424. 93. Unless the case is very clear, it is for the jury to decide whether the articles furnished were necessaries, and whether the husband im- properly failed to supplv them. Davis v. Caldwell, (12 C.) 66 512; Mayhew v. Thayer, (8 G.) 74 172; Hall i). Weir, (1 A.) 83 261; Raynes v. Ben- nett, 1 14 424. 94. The husband is liable, although he is non compos mentis, and in the almshouse. Shaw v. Thompson, (16 P.) 33 198. 95. If the wife leaves the husband without justifiable cause, taking their infant child, and the husband is willing to support the child, and so informs the plaintiff, he is not liable for necessaries furnished the child at the wife's request. Baldwin t>. Poster, 138 449. 96. A husband is liable for legal services, in 'successfully defending his wife against a com- plaint, instituted by him against her, for being a common drunkard; but not where they were rendered in instituting a complaint against him, for an assault and battery upon her. Conant ®. Burnham, 133 503. 97. Nor is he liable for legal services, in suc- cessfully defending her against a libel for di- vorce, filed by him. Coffin ®. Dunham, (8 C.) 62 404. 98. Nor for medicine and medical advice, from a person who is not a physician. Wood v O'Kelley, (8 C.) 62 406. 99. The jury may find that jewellery and per- sonal ornaments were necessaries, where the wife was living with her husband. Raynes v. Bennett, 114 424. So of a sewing machine. Willey v. Beach, 115 559. 100. A claim for necesaries furnished a wife,, pending her libel for a divorce, is not discharged by a decree granting it, and allowing her ali- mony for past and future support. Dowe®. Smith, (11 A.) 93 107. See, also, Hancock ®. Merrick, (10 C.) 64 41. 101. Nor is it barred by a dismissal of the libel- Burlen ®. Shannon, (3 G.) 69 387; Hubert ®. Fera, 99 198. 102. And the filing of a libel by a husband for divorce, on the ground of desertion, is not evidence of his neglect to supply her. Burlen ®. Shannon, (14 G.) 80 433. 103. A decree of the probate court under P. S., Ch. 147, § 33, that the wife is living apart from her husband for justifiable cause, is not evidence, in an action against him for the board of his wife and child. Barney ». Tourtellotte, 138 106. 104. If the husband drives the wife from his house, or so conducts himself that she is justi- fied in leaving him, she carries his credit with her, as far as necessaries are concerned. Alley v. Winn, 134 77. See, also, Mayhew®. Thayer, (8 G.) 74 172; Cart- wright s. Bate, (1 A.) 83 514. 105. And if she is living apart from him, the' plaintiff must show that the circumstances were such, as gave her implied authority to bind him for necessaries. Benjamin v. Dockham, 132 181. 106. A husband who has turned away his. wife for her adultery, is not liable on her con- tract with a person, having express or implied notice that he has discarded her; and semble, that this is so, notwithstanding his adultery, or the refusal of the court to grant him a divorce. Hunter v. Boucher, (3 P.) 20 289. 107. So where they have voluntarily sepa- rated, upon an agreement that she will support herself, and she has since made no claim upon him, or offered to return. Alley ®. Winn, 134 77. 108. Where the wife, having been expelled, is induced by the husband to believe that he ia dead, and honestly marries another, whom she leaves on learning that he is alive, he is liable for necessaries furnished her, although she has. been convicted of bigamy. Cartwright ». Bate, (1 A.) 83 514. 109. It is no defence that the plaintiff and th& wife conspired to abduct and conceal the de- fendant's infant child, to compel him to settle a maintenance upon her. Burlen ®. Shannon, (14 G.) 80 433. 110. The husband is not liable for the board of a child, whom his wife takes with her when she leaves him. Hancock ». Merrick, (10 C.) 64 41. 111. A person who, at the wife's request, has paid for necessaries furnished by another, may- recover, if the latter might have recovered. Mayhew v. Thayer, (8 G.) 74 172. HUSBAND AND WIFE, II, (4); III, (l). 693 112. A tradesman may recover for necessa- -ries supplied, although he has also supplied ar- ticles not necessaries. Eames v. Sweetser, lOl 78. See, also, Dexter ». Booth, (2 A.) 84 559. 113. The plaintiff cannot recover, if one of his objects in receiving the woman was to main- tain an adulterous intercourse with her. Almy v. Wilcox, 110 443. 114. In defence of the action, it may be shown, that a benevolent society contributed to the wife's support, articles which the plaintiff appropriated. Boardman v. Silver, lOO 330 HI. Wife's Eights, Disabilities, add Lia- bilities. [As to her power to make a will, see post, V ; Will, I, (2). As to her rights with respect to her children, see Parent and Child. As to other rights, see Ibb; Descent and Distribution; Devise amd Bequest; Homestead.] (1.) At common law and In equity. [See, also, ante, II.] 115. Where husband and wife mortgaged the wife's land, and continued in possession until ■condition broken, the wife was rightly- joined with the husband in an action to foreclose. Swan v. Wiswall, (15 P.) 32 126. 116. Before St. 1855, Ch. 304, a judgment against a married woman was void, although she was living apart from her husband, and ■carrying on trade on her own account. Morse v. Toppan, (3 G.) 69 411. 117. A declaration against husband and wife, alleging a joint conversion by them, or a joint contract, was bad on demurrer. Tobey v. Smith, (15 G.) 81 535. 118. Money paid to a married woman, or sent to her for her support by her absent hus- band, was his money, and must have been so averred in pleading. Lithgow i). Kavenagh, 9 161; Comm. v. Davis, (9 C.) 63 283. 119. After divorce, a woman might recover from her late husband, money collected by him on notes belonging to her before her marriage, and not reduced to possession by him during coverture; and parol evidence was inadmissible to show that in awarding her alimony, the court regarded them as his property. Legg v. Legg, 8 99. 120. So her administrator might recover money received after her death for her chose in action, not reduced to possession by her tusband. Hill v. Hunt, (9 G.) 75 66; Allen v. Wilkins, (3 A.) 85 321. , 121. A married woman whose husband had oeen absent several years, had not the rights of & Jem sole, although she had carried on busi- ness herself. Comm. «. Cullins, 1 116. , 1 ?; ^ ut tne ru l e w as otherwise, if her hus- Band had deserted her, and become the subject «i a foreign state. Gregory v. Paul, 15 31; Gregory v. Pierce, (4 Met.) 45 478. See, also, Kendall v. Jennison, 119 251. 123. So where an alien's wife was deserted in a foreign country, and became domiciled here, and maintained herself for five years, it was held that she might take a legacy, sue and be sued as a feme sole, and discharge a judg- ment in her favor. Gregory t>. Paul, 15 81: Abbot v. Bayley, (6 P.) 23 89. 124. So an abandonment of a wife by her husband gives her power to put out her infant children to service, and to assign their wages for the support of the family. Camerlin v. Palmer Co., (10 A.) 92 539. 125. But not to sell or give away his house- hold furniture. Edgerly v. Whalan, 106 137. 126. An entry by a wife, to whom a right of entry accrued, was lawful if made with her husband's assent, and her right was barred in 30 years, under the statute of 1786. Melvin e. Locks & Canals, (16 P.) 33 161. 127. But she was not barred by her laches to claim, during coverture, rent accruing to her, under a lease made by her before marriage, if she claimed it within a year after her husband's death. Daniels a. Richardson, (22 P.) 39 565. 128. A married woman cannot, by any act or declaration in pads, estop herself from setting up her legal incapacity to make a deed or a Lowell «. Daniels, (2 G.) 68 161; McGregor v. Wait, (10 G.) 76 72; Plumer «. Lord, (9 A.) 91 455; Bemis v. Call, (10 A.) 92 512; Pierces. Chace, 108 254; Merriam v. Boston, etc., Rail- road, 117 241. 129. And a conveyance by her, before, St. 1874, Ch. 184; P. S., Ch. 147, §§ 1, 2, of shares in a corporation, without complying with G. S. , Ch. 108, § 3, was invalid, and did not estop her in equity to set up her title against the corpora- tion. Merriam v. Boston, etc., R. R., 117 241. [See, also. Estoppel, II, (2).] 130. So where she fraudulently conveyed land in her maiden name. Lowell v. Daniels, (2 G.) 68 161. 131. But a conveyance by husband and wife of her land, with covenants of warranty by both, estops her to deny her tittle. Nash ■«. Spofford, (10 Met.) 51 192. 132. Her joining her husband in a deed of her land, with covenants of warranty, reciting that she does so to release her right of dower, will not authorize the presumption of a grant from her or her heirs, from an adverse posses- sion of more than twenty-nine years. Raymonds. Holden, (2 C.) 56 264. 133. And where the deed recites that she- joins to release her homestead right, it does not bar her dower. Tirrel v. Kenney, 137 30. 694 HUSBAND AND WIFE, HT, (1), (2). 134. Where her husband died in adverse pos- session, she cannot tack her subsequent adverse possession to his, to give her a title by disseisin. Sawyer v. Kendall, (10 C.) 64 241. 135. But her own adverse possession for twenty years vests in her a valid title, of which her husband may avail himself on a writ of entry, by the heirs of one to whom he has re- leased the land within the twenty years. Steel v. Johnson, (4 A.) 86 425. 136. The wife of the owner of an equity of redemption has no rights, as against her husband or his assignee in bankruptcy, to the proceeds of a sale under a power in a mortgage, valid against her. Newhall v. Lynn F. C. Sav. Bk., 101 428. 137. A married woman was not liable for necessaries furnished upon her express promise, although she was living apart from her hus- band, who was confined as non compos, and she ■had property in her own right. Shaw v. Thompson, (16 P.) 33 198. 138. And joining with her husband, in a con- tract for erecting a building upon her land, did not create a lien, which the mechanic could enforce against her title, although he could enforce it against her husband's interest. Kirbyrc. Tead, (13 Met.) 54 149. 139. A note given by a married woman and her husband, for money furnished to them by a testator, was not to be deducted from a legacy to her, where the will required all " legal debts " to the testator to be deducted therefrom. Rogers v. Daniell, (8 A.) 90 343. ' 140. A woman, who is divorced from bed and board, is liable upon her debt contracted after such divorce. Pierce v. Burnham, (4 Met.) 45 303. 141. So where the divorce was granted in another state, by a court of competent jurisdic- tion. Kendall s. Jennison, 119 251. 142. A married woman or an infant is chargeable in trespass, for having procured another to commit an assault and battery Sikes v. Johnson, 16 389. 143. But for torts and trespasses committed during coverture, by a married woman, with- out her husband's coercion, the action must be against her and her husband, as where she receives during her husband's absence, and con- verts to her use, a chattel stolen from the plaintiff. Heckle ®. Lurvey, 101 344. See, also, Tobey v. Smith, (15 G.) 81 535. 144. So where the tort is committed in her usband's absence, but under his direction and instigation. Handy v. Foley, 121 259. 145. A married woman's estate could not be confiscated under the absentee act. Martin ■». Comm., 1 347. 146. A married womon might be imprisoned without her husband, upon an execution against both. Comm. v. Badlam, (9 P.) 26 362. 147. If a woman married pendente lite, she might be taken in execution. Haines v. Corliss, 4 Phillipsburg, 10 78. 659; Comm. v. 148. A wife, with her husband's consent, might pass a good title to a promissory note given to her during coverture, by indorsement. Stevens v. Beala, (10 C.) 64 291. 149. And her power to indorse could not be disputed by a subsequent indorser. Prescott Bank «. Caverly, (7 G.) 73 217. 150. The wife of a tenant in common has no implied authority from her husband, to contract with the co-tenant for the sole occupation of the land. Wilbur v. Wilbur, (13 Met.) 54 404. 151. Nor has a woman an implied authority to license, irrevocably, one to enter upon her husband's real property. Nelson 4i. Garey, 114 418. 152. Nor has she any implied authority to make a payment upon her husband's note, so as to take it out of the statute of limitations. Butler v. Price, 110 97; Butler «. Price, 115 578. 153. A wife is not a competent witness to her husband's will, either at common law or under the statute. Pease v. Allis, 110 157. 154. Nor is she a competent witness to a will,, containing a decree or legacy to her husband. (But now, see St. 1878, Ch. 122; P. S., Ch. 12" Sullivan v. Sullivan, 106 474. 155. Where a valid trust was created in real property for the benefit of a wife, tbe latter might, even before the G. S., enforce it by bill in equity against the trustee and her husband, who had received the rents and profits. Ayer t>. Ayer, (16 P.) 33 327. 156. An annuity, bequeathed to a trustee for the sole and separate use of a married woman, could not, under the former statute, be charged for the husband's debts. Mahoney v. Porter, (3 C.) 57 417. 157. Under a bequest by a son to his mother "for her sole use," where she lived apart from her husband, the latter's creditors could not attach the property. Smith e. Wells, (7 Met.) 48 240. C2.) Doing " business," under tbe statute. [See, also, ante, art. 85. As to cases where the hus- band is interested, see post, IV, (2).] 158. Under G. S., Ch. 108, § 3, and St. 1855, Ch. 304, § 7, a married woman might belong to a trading partnership, if her husband was not a member thereof. Plumer v. Lord, (5 A.) 87 460. St. 1863, Ch. 165, abrogating this ruling, re- pealed by St. 1874, Ch. 184, § 5, was constitu- tional. Todd «. Clapp, 118 495. 159. Under those provisions a married woman, keeping boarders on her own account, was liable for goods furnished for that business, on her HUSBAND AND WIFE, III, (2). 695 own credit, although her husband lived m the house; hut not upon a note given by her for goods, originally sold and charged to her hus- ' Parker «. Simonds, (1 A.) 83 258. 160. And where her husband thus lived with her, the facts that the house was leased to him; that his name was upon the door; that a large part of the provisions used were purchased by him, and upon his credit; that he effected a a settlement of a joint action against them both, and otherwise acted as if the business was" his; are not conclusive on either side, but go to the juryuponthe question, whether he acted as her agent, or whether the business and property were his. Mason v. Bowles, 117 86; Paine v. Farr, 118 74. 161. In replevin by a married woman, for property employed by her in her separate busi- ness, without having filed the statutory certifi- cate, the burden is upon the officer to show, that the attaching creditor was in fact a creditor of the husband, and the writ alone is not sufficient for the purpose. Miller v. Bannister, 109 289. 162. Since the enactment of the statute re- quiring a certificate, the husband is liable for the wife's debts, if the certificate is not filed. Feran «. Rudolphsen, 106 471. 163. The statutes requiring the filing of a cer- tificate, St. 1862', Ch. 198, §§ 1, 2; St. 1881, Ch. 64, §§ 1, 3; P. S., Ch. 147, § 11, do not apply to all uses which a married, woman may make of her separate property. Proper v. Cobb, 104 589; Wheeler B.Raymond, 130 247. 164. Keeping a colt for use, or buying mate- rials to build a house for herself or her husband, is not witMn the statute. Proper v. Cobb, 104 589 165. Nor is it necessary for her to file a cer- tificate, where a woman permits her husband to use her property in a business carried on by him. Wheeler v. Raymond, 130 247. 166. Carrying on a farm in the usual way is within the statute. Snow j>. Sheldon, 126 332. 167. So is keeping a boarding house. Chapman v. Briggs, (11 A.) 93 516. [See, also, ante, art. 159, 160. 1 168. Where a married woman keeps a board- ing house, without filing the statutory certificate, the debts due to her for board are part of the property employed in the business, within the statute, and are liable to attachment by her husband's creditors. Dawes v. Rodier, 125 421; Harnden v. Gould, 126 411. 169. And where, having filed a certificate in one town, she removes to another town, and rails seasonably to file the certificate in the lat- ter the debts due to her in the former town are liable to attachment by her husband's creditors. Dawes t. Rodier, 125 421. 170. The statutes requiring a certificate do not apply, where the husband is a nonresident, ana tnewife does business here. Hill v. Wright, 129 296. 171. They apply only to personal property. Bancroft ». Curtis, 108 47. 172. Neglect to comply with them does not give the husband authority to dispose of the property. Merrill D. Parker, 112 250. 173. Intermingling the husband's property with the wife's, in the business carried on, does not invalidate the certificate. Long ». Drew, 114 77. 174. St. 1862, Ch. 198, was not repealed by St. 1874, Ch. 184. See, now, P. S., Ch. 147 ?§ 4, 11. Harnden v. Gould, 126 411. 175. The purpose of the statute is to allow a married woman to do business, without the risk of having her property taken for her husband's debts, and without his being liable upon con- tracts made by her in the prosecution of the business; and the sufficiency of the description of the nature of the business is to be determined with reference to this two fold purpose. O'Neil v. Wolffsohn, 137 134. 176. Semble, that the question, whether the certificate describes with substantial accuracy the business, may be submitted to the jury, upon the question whether it was likely to mislead creditors. O'Neil v. Wolffsohn, 137 134. 177. A certificate of intention to do business as "a retail liquor dealer and saloon keeper" is sufficient, although she does to some extent a wholesale business. O'Neil v. Wolffsohn, 137 134. 178. "The general business of a saloon keep- er" is not as matter of law, insufficient. Cahill v. Campbell, 105 40. 179. When the description of the place gives the street and number, and adds, "and such other rooms as may be necessarily connected therewith," the certificate does not protect, against her husband's creditors, property em- ployed in the business in a building in the same street, but with a different number, without other proof of necessary connection than is afforded by the nature of the business. Harriman ». Gray, ■ 108 229. 180. It is not necessary to insert a description of the property in the certificate; and a false description does not invalidate it. Long v. Drew, 1 14 77. 181. Before St. 1881, Ch. 64, it was held that recording the certificate in the town clerk's office did not suffice, if the certificate was not left on file. See now P. S., Ch. 147, §§ 11, 12. Chapin v. Kingsbury, '135 580. 182. That statute applies only to a certificate made after its passage, and does not validate a certificate previously made, and recorded, in- stead of being filed. Chapin v. Kingsbury, 138 194. 183. For a ruling that the evidence, as stated in a bill of exceptions, would not sustain in finding that the certificate was filed under the statute of 1862, see Chapin v. Kingsbury, 138 194. 184. St. 1862, Ch. 198, § 2, applies to a pur- chase made in the prosecution of a business, car- 1 ried on in this Commonwealth, by a wife domi- 696 HUSBAND AND WIFE, in, (2), (3). ciled here, although the articles were purchased and the payment was to be made in another Ridley ». Knox, 138 83. 185. Where no certificate is filed as required by the statute, the husband and wife are not jointly liable, but each is severally liable. Ridley «. Knox, 138 83. 186. But if they are jointly sued, and a ver- dict is rendered against them jointly, the plain- tiff may have leave to discontinue as to one, and take judgment against the other. Ridley v. Knox, 138 83. (3.) Other statutory property rights and liabilities. 187. By the existing statute, a married woman may make any contract, with any person except her husband, in like manner as if she was sole. St. 1874, Ch. 184, $ 1; P. S., Ch. 147, § 2. And any consideration, sufficient to support a contract by the general rules of law, will sup- port her contract. Nourse v. Henshaw, 123 96; Major v. Holmes, 124 108; Kenworthy «. Sawyer, 125 28. 188. For rulings relating to married women's contracts under the former statutes, which con- fined her power to contract, to obligations with respect to property owned by her, or for the acquisition of property by her, see Harrington v. Thompson, (9 G.) 75 65; Ames-B. Foster, (3 A.) 85 541; Chap- man v. Foster, (6 A. ) 88 136; Stewart c. Jenkins, (6 A.) 88 300; Crane v. Kelley, (7 A.) 89 250; Spaulding v. Day, (10 A.) 92 96; Estabrook«. Earle, 97 302; Labaree v.. Colby. 99 559; Fiske v. Mcintosh, lOl 66; Gordon v. Dix, 106 305; Athol Machine Co. «. Fuller, 107 437; Faucett v. Currier, 109 79; Yale v. Wheelock, 109 502; Wright ». Dresser, 110 51; Stevens v. Reed, 112 515; Wilder v. Richie, 117 382; Williams ». Hayward, 117 532; Burr v. Swan, 118 588; Allen®. Fuller, 118 402. 189. As the validity of a mortgage upon her real property, under like circumstances, see Bartlett v. Bartlett, (4 A.) 86 440; Heburn v. Warner, 112 271; Thacher v. Churchill, 118 108. 190. For rulings under the former statute, requiring her husband's written consent to her mortgage or conveyance of, or her contract re- lating to, her real property, see Baker ». Hathaway, (5 A.) 87 103; Dresel v. Jordan, 104 407; Heburn «. Warner, 112 271; Thacher ». Churchill, 118 108; Chapman v. Miller, 128 269. 191. As to personal property, see Fisk «. Cushman, (6 C.) 60 20; shall v. Berry, (13 A.) 95 43. Mar- • 192. In an action upon an account for work done on a married woman's separate property, evidence that it was done with her knowledge, will warrant a jury in finding that she agreed to pay for it, but raises no presumption of law, which requires the judge to direct a verdict for the plaintiff. Westgate v. Munroe, 100 227. 193. See, further, upon questions of evidence as to a married woman's liability upon her con- tract, under the former and the existing stat- utes, especially where the question was whether her husband acted as her agent. Morse v. Mason, 103 560; Merrill v Parker, 112 250; Wilder v. Richie, 117 382; Arnold «. Spurr, 130 347. 194. As to the former doctrine, that a married woman's debt could only be enforced in equity, and against her separate estate, where she had expressly charged it upon her separate estate by a written instrument, see Willard v. Eastham, (15 G.) 81 328; Smith v. Bird, (3 A.) 85 34. 195. But a bill in equity might be main- tained, where the debt related to her separate property, without an express charge thereupon. Rogers v. Ward, (8 A.) 90 387. 196. In a case where the wife is competent to contract, her note or other promise, express or implied, jointly with her husband, binds both. Parker v. Kane, (4 A.) 86 346; Bas- ford v. Pearson, (7 A.) 89 504; Reiman v. Hamilton, 111 245; Pierce v. Kit- tredge, 115 374; Major ». Holmes, 124 108; Goodnow®. Hill, 125 587. 197. So as to a mortgage upn her land. Bartlett v. Bartlett, (4 A.) 86 440. 198. Qu., whether St. 1855, Ch 304, and St. 1857, Ch. 249, gave an infant married woman the same rights and powers as one who was an adult. Bartlett v. Cowles, (15 G.) 81 445. 199. Under the statute, even before 1874, a wife might make a valid donatio mortis causa. without her husband's assent, Marshall «. Berry, (13 A.) 95 43 200. Under St. 1845, Ch. 208, a conveyance of land to a married woman, "in her own right," was not sufficient to convey it to her separate use. Merrill v. Bullock, 105 486, 201. Under St. 1855, Ch. 304, where a man and woman came from another state, and were married here, and she soon afterwards ordered certain money of her own, before the marriage, to be sent to her here, and the carrier delivered it to her husband, who absconded with it, it was held that the carrier was liable to her. Read v. Earle, (12 G.) 78 123. 202. That statute applied to a woman where she and her husband were domiciled here, although they were married in another state. Woodbury «. Ireland, (16 G.) 82 105. 203. Upon a purchase of personal property by a married woman, with her own means, it is not necessary that there should be an express statement, that the articles purchased are to be held as her separate property. Spaulding «. Day, (10 A.) 92 96. 204. Since St. 1874, Ch. 184, if a husband buys a chattel for his wife, and as her prop- erty, and pays part of the price by releasing a debt due to him from the seller, she paying the HUSBAND AND WIFE, III, (3); IV, (1). 697 remainder, the title of the chattel is in her, and she may maintain replevin for it. McCowan v. Donaldson, 128 169. 205. The fact of his paying part of the price did not, under the former statute, render the sale a gift from him to her. McCowan v. Donaldson, 128 169. See also, Adams v. Brackett, (5 Met.) 46 980; Fisk v. Cushman, (6 C.) 60 20; and cases in IV, post. 206. The fact that a woman's husband works upon her land, does not, in the absence of proof of an intent to defraud creditors, subject the crops to the payment of his debts. Mclntyre v. Knowlton, (6 A.) 88 565. 207. Money held for the use and benefit of a married woman, upon a trust revocable at her pleasure, is subject to a foreign attachment in a suit against her. Eastbrook®. Earle, 97 302. 208. A married woman, whose husband has removed from the house owned by him and occupied by them, she remaining, cannot main- tain an action against his subsequent lessee or grantee, for disturbing her possession, although an ante-nuptial agreement assures her the use of the house for a year after his death. Goodnow v. Shattuck, 136 223 209. Upon the question whether borrowed money was the husband's or the wife's, the fact that she gave her note for it is evidence in her favor. Snow v! Paine, 114 520. 210. And in an action against her, she may testify that certain money, in bank in her name, was handed by her to her husband, to be so deposited. Snows. Paine, 114 520. 211. The. doctrine of equity, excepting pro- visions in favor of married women, from the rules invalidating restraints upon alienation in wills or deeds, is no longer in force, since the statute has made a married woman sui juris; and now a provision, in a settlement of her prop- erty by a married woman, that the income shall not be alienated by anticipation, is void against fler creditors. Pacific Nat. Bk. v. Windram, 133 175. See, also, Jackson t>. Von Zedlitz, 136 342, cited post, art. 273. IV, Conveyances, .Contracts, and other Transactions between Husband and WrfE (1.) Conveyances and other transfers. [See, also, Fraud, III.] „5 3 '. TIle , statute does not forbid a convey- thrl°£ T l P r ?P ert y from husband to wife, wough the medium of a third person. Motte v. Alger, (15 G.) 81 322. 213 The statute does not apply to a donatio mmis causa, Jl^^l «• "Wheeler, 116 490; Mar- shall v. Jaquith, 134 138. Vol. 1—88 214. A gift from husband to wife, of house- hold furniture, is void under the statute. Edgerly ». Whalen, 106 307. 215. So is a gift of a third person's promis- sory note. Carley «. Green, (12 A.) 94 104. 216. But a husband may m ake a gift of per- sonal property to his wife, which will give her a valid title after his death, as against his heirs; for which purpose there must be an actual de- livery to her, and a retention of it by her, sepa- rate from the husband's other property, and creditors' rights must not be impaired. Be- tween husband and wife, the requisites and effects of gifts inter vivos and causa mortis are nearly identical. Marshall v. Jaquith, 134 138. See, also, Phelps v. Phelps, (20 P.) 37 556. 217. A deposit of money by the husband to the wife's credit, in a savings bank, and a de- livery of the deposit book to her, will enure to her benefit after his death. Fisk v. Cushman, (6 C.) 60 20. 218. A man who deposits money in a savings bank, to his wife's credit, and delivers the book to her, cannot maintain an action against the bank for its refusal to pay the money to him, as the transaction amounts to a contract between the bank and her. And his testimony, that he never intended to give it to her, does not vary the rule. Sweeney v. Boston F. C. Sav. Bank, 116 384. See, also, Nashua v. Sanger, (17 P.) 34 500. 219. But a deposit by a woman of her hus- band's money in her own name, but for his benefit and at his request, does not pass the title to her, or, after his death, as against his admin- istrator. McCluskey v. Provident Inst, for Savings, 103 300. 220. Although a gift from a husband to his wife may be so far valid, as to give the wife the right to the property at her husband's death, the property during his life remains his own, and may be demanded by him, or attached by falS PTfi QltOTS Spelman v. Aldrich, 126 113. See, also, Ames v. Chew, (5 Met.) 46 320; Thompson v. O'Sullivan, (6 A.) 88 303; Gay v. Kingsley, (11 A.) 93 345; Baxter v. Knowles, (12 A.) 94 114. 221. And where an attorney received for the husband a pension check, and he, with the husband and the wife, went to a savings bank and deposited, with their consent, part of the amount in the wife's name, and gave her the rest, it was held that the amount deposited was the husband's property, and liable to attach- ment by his creditors. Spelman v. Aldrich, 126 113 222. Where a husband subscribed for shares of stock in his wife's name, and a certificate was issued to her, and he made payments there- for, and received the dividends thereupon, in her name, it was held that upon his death she was entitled to hold the shares as her property, as against all persons but his creditors, who might resort to them, if the estate was insufficient to pay the debts. Adams v. Brackett, (5 Met.) 46 280. 698 HUSBAND AND WIFE, IV, (1), (2). 223. The fact that the husband pays part of the purchase money of a chattel, bought by him for the wife, and sold to her, does not make the transaction a gift from him to her. McCowan v. Donaldson, 128 169. [See, also, ante, art. 205.] 224. But where an action was brought by a wife, upon promissory notes received by her husband, upon the sale by him of his goods, and made payable to her order at his request, and delivered by him to her, it was held, before the st. of 1874, that she could not maintain an action thereupon in her own name. Towle e. Towle, 114 167. 225. And where personal apparel w pur- chased by her, with her husband's consent, from money given to her from a fund made up from their joint earnings, it was held that her earnings, being undistinguishable from the rest of the fund, had ceased to be her property, and the articles in question were his property. Hawkins v. Providence & W. R. R., 119 596. 226. Accord, as to the effect of mingling the wife's earnings with her husband's money, Kelly v. Drew, (12 A.) 94 107; Mc- Cluskey v. Provident Inst, for Savings, 103 300. 227. A promissory note given to a married woman, by a partnership of which her husband was not a member, in consideration of the sale by him of his interest in another firm, if she furnished the pecuniary capital, is her separate property, and is not attachable by his creditors. Worthy e. Clapp, 99 561. See, also, Chapman v. Williams, (13 G.) 79 416; Lord v. Davison, (3 A.) 85 131; Ames v. Poster, (3 A.) 85 541. 228. The husband's assignee in insolvency cannot maintain an action against the wife, to recover money transferred, or the value of land conveyed, to her by the insolvent; as her pos- session of the money is her husband's posses- sion, and the conveyance is void. Thomson v. O'Sullivan, (6 A.) 88 303. 229. Under St. 1879, Ch. 192; P. S. Ch. 147, § 3, the question whether a piano is an article necessary for a wife's personal use, so that it may be the subject of a valid gift from her husband, is for the jury; and the fact that he kept a saloon and lodging house for fishermen is not conclusive to show that it was not such. Hamilton v. Lane, 138 358. See, also, Raynes ». Bennett, 114 424. (2.) Contracts generally. [See, also, Contract, I, (2); III, (2).] 230. An executory agreement between hus- band and wife is void, at common law, and under all the siatutes upon the subject. And the fact that the wife survives her husband, does not enable her to enforce it against his estate. Kneilti. Egleston, 140 202. See, also, Tucker «. Penno, 110 311; Bassett ®. Bassett, 112 99; Majors. Holmes, 124 108; Kenworthy v. Sawyer, 125 28; Chapin v. Chapin. 135 393; Butler v. Ives, 139 202. 231. The rule extends to a loan made, or a promissory note or bill of exchange given, by one to the other, although upon a valuable con- sideration, and to an indorsement of another's note by one to the other, which is void, even in the hands of a third person. Jackson v. Parks, (10 C.) 64 450- Ingham v. White, (4 A.) 86 412; Gay v. Kingsley, (11 A.) 93 345; Roby v. Phelon, 118 541; Kneil v. Egleston, 140 202. See, however, Slawson s. Loring, (5 A.) 87 340. 232. Such a note cannot be enforced in equity. Turner v. Nye, (7 A.) 89 176; Wil- son v. Bryant, 134 291. 233. Nor can it be proved against his insolv- ent estate, even since St. 1884, Ch. 293. Woodward v. Spurr, 141 283. 234. Nor can a mortgage given to secure it be enforced. Phillips e. Frye, (14 A.) 96 36 235. But since the statute of 1874, a note and mortgage, given by a husband to a third person, and by him transferred to the wife, the consid- eration of which is a loan by the wife to the husband, is valid. Degnan v. Parr, 126 297. See, also, before that statute, Stearns r>. Bullens, (8 A.) 90 581. 236. And since the statute of 1874, a promis- sory note, made by a wife to the husband and indorsed by him, is good against him. Kenworthy «. Sawyer, 125 28 237. And a note given upon sufficient consid- eration, to a woman by her former husband, after a divorce, although given pursuant to a written agreement made before the divorce, is valid, even in her hands. Chapin «. Chapin, 135 393 238. A promissory note, given by a man to a woman, becomes a nullity by their marriage, and is not revived by his death. Abbott v. Winchester, 105 115 239. So of a note given to a third person, and by him indorsed to the maker's husband or wife, after marriage; and such a note is not re- vived by a retransfer. Chapman ». Kellogg, 102 246. See, also, Wilson v. Bryant, 134 291. 240. Where a husband and his wife were made residuary legatees of a testator, who died in 1852, and the husband was appointed execu- tor, and administered the estate, and mingled her legacy with his property, it was held that his note for her legacy, given to her in 1862, on which he made a payment in 1878, could not be enforced; nor could a trust be established by a bill in equity in her favor, against his admin- istrator. Bridgman v. Bridgman, 138 58. 241. Where a husband lakes a lease of a shop, and sublets it to his wife for her business, taking rent from her, and she continues to occupy it after the lease ends, he is, and she is not, liable under the statute, to the grantee of the lessor, as a tenant at sufferance. Knowles «. Hull, 99 562. 242. "Where a man, sued by a woman for money loaned, proves that a marriage ceremonjr HUSBAND AND WIFE, IV, (2), (3), (4). 699 has taken place between them, she may, in reply show that she had a former husband liv- ing to the knowledge of both. g ' Robbins ^.Potter, 98 532. 343 A release, given by a wife to her hus- band of all claim lor her support, and an agree- ment to indemnify him against the same, given upon a valuable consideration, do not bar a pe- tition by her for her support, under P. S., Ch. 147 §33. Silverman v. Silverman, 140 560. 244. Releases of property rights, and claims for support, and other contracts, between hus- band and wife, upon a separation, are invalid, but may be validated in favor of a trustee, who is a party thereto; but the mere giving notes or placing funds in a third person's hands, does not make him such a trustee. Whitney o. Closson, 138 49 245. Under the existing statute, as well as the former statutes, a woman cannot become a member of a copartnership, of which her hus- band is also a member. Lord v. Parker, (3 A.) 85 127; Lord B.Davison, (3 A.) 85 131; Edwards v. Stevens, (3 A.) 85 315; Ingham v. White, (4 A.) 86 412; Plumer *. Lord, (5 A.) 87 460; Plumer v. Lord, (7 A.) 89 481; Todd v. Clapp, 118 495. 248: If she enters into a partnership with her husband, she is not liable upon the partnership contracts made by her husband. Bowker e. Bradford, 140 521. 247. A promissory note given to a woman by a partnership, of which her husband is a mem- ber, is void. Powle «. Torrey, 135 87. See, also, Kenworthy v. Sawyer, 125 28. 248. If she lends money to such a partner- ship, and on the dissolution thereof it is agreed that the other partner shall take the assets of the firm, and pay, and indemnify the husband against, the debts of the firm, but no express promise to pay the debt is made by the former, to the woman, there is no trust, and she cannot maintain a bill in equity against the two. Fowle «. Torrey, 135 87. 249. If, however, such an express promise had been made, she would have had a remedy at law. Powle «. Torrey, 131 289. 250. And a promissory note, made by a part- nership, and indorsed by the wife of one partner for the accommodation of the firm, binds her, smce the statute of 1874. Kenworthy v. Sawyer, 125 28. 251. Mter, before that statute. Noiirse v. Henshaw, 123 96. 252. Where a wife releases her dower, upon her husband's oral agreement to convey to her other land, which is only a fair equivalent, he rang then solvent; and afterwards, within six months of his insolvency, he, being insolvent, ™" ™f having reasonable cause to believe him 1 a i the oral a g reement by conveying the jand. through a third person, his assignees in insolvency may avoid the conveyance. Holmes v. Winchester, 135 299; Winchester v. Holmes, 138 540. 253. Alitor, if the oral agreement related to personal property. f Holmes s. Winchester, 133 140. 254. Nor can the wife, in the case stated, maintain a bill to compel the assignees to com- pensate her for the value of her dower. Winchester v. Holmes, 138 540 255. Where the wife, in 1871, upon a valuable consideration received from her husband, gave her note, and a mortgage upon her land to se- cure it, to a third person, who assigned them to her husband, it was held that his assignee might enter to foreclose, and maintain a writ of entry against one claiming under the wife Butler v. Ives, 139 202. (3.) Contracts for, or In consideration of, separation. [See, also, ante, arts, 107, 237, 243, 244.] 256. Where, in contemplation of a separa- tion, a husband, by indenture, places money in the hands of a trustee, the income of which is to be paid to the wife during her life, the in- denture is binding, and will not be set aside as against public policy. Pox «. Davis, 113 255. See, also, Page v. Trufant, 2 159; Holbrook v. Comstock, (16 G.) 82 109. 257. Where husband and wife entered into articles of separation, and all the separate prop- erty of the wife was conveyed to a trustee for her benefit, it was held that she was not entitled, after his death, to an allowance out of his per- sonal estate. Hollenbeck t>. Pixley, (3 G.) 69 521. 258. Where, by articles of separation, a hus- band covenanted to pay to a trustee for the wife a certain sum annually during her life, in con- sideration of her withdrawing a libel for divorce, which was done; and she filed another libel, upon which she obtained a decree of divorce, and for alimony at the rate fixed by the articles, and afterwards she married another man, whereupon the alimony was reduced; it was held that the covenant was discharged. Albee v. Wyman, (10 G.) 76 222. 259. A husband, who has given to a trustee a bond for an annual payment to his wife, upon separation, cannot, after her death, maintain a bill to restrain the obligee from suing to recover arrears, without an averment that the wife made no disposition of her property by will, and that no one has a legal or equitable claim upon her property. Holbrook v. Comstock (16 G.) 82 109. (4.) Actions and other proceedings be- tween tliem ; other matters. [=ee, also, ante, IV, (2). As to divorce, see that title.] 260. Neither husband nor wife can sue the other, under the existing statutes. Whatever ^00 HUSBAND AND WIFE, IV, (4); V. lights they had in this respect, remain as they stood at common law. Fowle v. Torrey, 135 87. See, also, Lord 0. Parker, (3 A.) 85 127: Bassett «. Bassett, 112 99. 261. Nor can a woman sue partners, oi whom her husband is one, to recover compensation for her services. Edwards v. Stevens, (3 A.) 85 315. 262. As long as the equity of redemption of land, on which a woman holds a mortgage, is held by her husband, her right to enter to fore- close in the presence of witnesses is suspended. Tucker ». Fenno, 110 811. 263. Where a woman purchases her hus- band's equity of redemption, upon a sale under a,n execution against him, no title passes to her hy the sheriff's deed. Stetson 0. O'Sullivan, (8 A.) 90 321. 264. And if she and her husband give their joint note for the price of the equity, she is not liable on the note. Stetson ®. O'Sullivan, (8 A.) 90 321. 265. But if such a note is secured by a mort- gage on the land, and she pays it with her own money, a conveyance of the land by her hus- band to her, through a third person, within a few days of his going into insolvency, will be sustained, if not fraudulent in fact. Stetson 0. O'Sullivan, (8 A.) 90 321. 266. And the wife of a mortgagor, who has parted with the equity of redemption, may pur- chase for her own use, at a sale under a power in the mortgage. Field 0. Gooding, 106 310. 267. The assignment to a husband of a mort- gage upon his wife's real property, which, by the terms of the deed to her, she was to assume and pay, vests in him a good title to the mort- gage, although his light to enforce it is sus- pended during her life. Cormerais v. Wesselhoeft, 114 550. 268. So the marriage of a mortgagor and a mortgagee does not extinguish the mortgage, hut suspends the right of forclosure. Bemis v. Call, (10 A.) 92 512. See, also, Tucker 0. Fenno, HO 811. 269. A woman, who joined with her husband in a mortgage of her real property, tojsecure his debt, which she has paid since his death, may prove the amount before commissioners of in- solvency upon his estate. Savage 0. Winchester, (15 G.) 81 453. 270. A man, sued with his wife for her debt contracted before marriage, who allows judg- ment to be taken by default against himself alone, after her death, has no claim against her estate for the sum paid upon such judgment; nor, if the debt was secured by a mortgage on her land, can he hold the same in equity as a charge upon the land. Warren «. Williams, (10 C.) 64 79; Warren v. Jennison, (6 G.) 72 559. 271. Where a man leaves his wife without cause, and removes to and becomes a citizen of another state, that does not prevent the wife, who remains here, from maintaining a petition for a separate maintenance under P. S., Ch. 147, § 33; and the notice may be served upon Mm in the state where he resides, and such ser- vice gives jurisdiction to enforce the order against his property here, or his person if he is found here. Blackinton 0. Blackinton, 141 432. V. Ante-nuptial Agreements; Marriage Settlements. [See, also, Dower; Statute op Frauds, II, (3): Widow III; ana ante, art. 808.] 272. The provision of the statute protecting marriage settlements, G. S., Ch. 108, §10; P. S., Ch. 147, § 15, does not give life and validity to a provision restraining alienation, which is against public policy and contrary to law. Jackson v. "Von Zedlitz, 136 342. 273. A provision in a marriage settlement, that the income of a married woman's property shall not be alienated by anticipation, is void against her creditors. Jackson 0. Von Zedlitz, 136 342. See, also, Pacific Nat. Bk. 0. Windram, 133 175; cited ante, art. 811. 274. Where a man, in contemplation of mar- riage, conveyed to his intended wife all his in- terest in an annuity, to have and to hold to her " during the marriage," it was held, that upon a divorce being granted on her libel, her inter- est in the annuity ceased. Harvard College 0. Head, 111 209. 275. But in the absence of any express pro- vision to that effect, or an implication of such an intent from the whole instrument, a provision in an ante-nuptial agreement, for the benefit of either of the parties, is not annulled by a divorce, although it was granted for his or her adultery. Babcock 0. Smith, (22 P.) 39 61. 276. Where the income of property is secured to the wife's sole and separate use, by a mar- riage settlement, and she becomes insane, a bill in equity lies to compel the trustees to pay to her husband and guardian such portion of the income, as is reasonable for her support. Davenport 0. Davenpcrt, (5 A.) 87 464. 277. An agreement by a woman, on the eve of marriage, to pay the debt of her intended husband, which is procured by threats of arrest- ing him, cannot be enforced in equity. Rau 0. Von Zedlitz, 132 164. 278. An ante-nuptial agreement was valid before the statute, in the absence of fraud, against the creditors of the husband. Newburyport Bank 0. Stone, (13 P.) 30 420. 279. A power of appointment or disposition by will or otherwise, reserved to a married woman before marriage, might be exercised after marriage, before the statute. Osgood 0. Breed, 12 525; Heath v. Withington, (6 C.) 60 497; Ela 0. Ed- wards, (16 G.) 82 91. See, also, Rich- ardson 0. Learned, (10 P.) 27 261; Hol- man 0. Perry, (4 Met.) 45 492. 280. Before the statute, it was held, that an ante-nuptial agreement that the wife should have her earnings to her own use, was fraudu HUSBAND AND WIFE, V; "VI. 701 lent against the husband's previous or subse- « uentC K e eUhTwoombell,(8P.) 25 311. 281 Where an unmarried woman, having executed a will, made an ante-nuptial agree- ment with her intended husband, providing for her retention of full control over her property, and that the marriage should not revoke her w iU it was held that the will was not revoked by her subsequent marriage, no issue having beenborn. Osgood v. Bliss, 141 474. 282. An ante-nuptial contract may be en- forced by bill in equity, against the trustee, or any person to whose hands the property has come after the death of either of the parties. ' Miller v. Goodwin, (8 G.) 74 642; Lawrence v. Bartlett, (2 Aj 84 36; Sullings v. Sullings, (9 A.) 91 234; Tar- bell i. Tarbell, (10 A.) 92 278; Jenkins n. Holt, 109 261; Blackinton®. Black- inton, 110 461; Paine ». Hollister, 139 144. 283. But it w ill not be so enforced, if the party seeking to enforce it has not fulfilled it on his or her part. ' Sullings v. Sullings, (9 A.) 91 234. 284. Where a husband is violating an ante- nuptial contract, a court of equity will, upon the wife's application, appoint a trustee to en- force and protect her rights; and such a trustee may maintain a bill against the husband to compel fulfilment of the agreement. Tinker «. Beach, (11 Met.) 52 349. 285. Where a married woman lent, upon a promissory note, the interest, accruing after marriage, upon a security held by her at the time of the marriage, which was done with the consent of her husband, he declaring that it ■was her separate property, and that he did not claim it, although he stated that no agreement to that effect was made with her, either before or after the marriage; and after the husband's death, the maker paid the money to her; it was held that she might retain it as against the executor. Phelps e. Phelps, (20 P.) 37 556. 286. A woman may bar herself by an ante- nuptial agreement of her distributive share, or of her statutory allowance. Sullings v. Sullings, (9 A.) 91 234; Tarbell*. Tarbell, (10 A.) 92 278, Paine «. Hollister, 139 144. See, also, Sul- lings «. Richmond, (5 A.) 87 187. 287. The failure of that part of the arrange- ment man ante-nuptial contract, which is de- signed for the wife's benefit, through the fault or negligence of the husband, will avoid her covenant not to claim dower. Freelandtf.Freeland, 128 509. See, also, Hastings v. Dickinson, 7 153; Gibson «. Gibson, 15 106; Sullings v. Sullings, (9 A.) 91 234; Butman v. Porter, 100 337. ^' ? ut not ^ere an independent covenant on tne husband's part, forming a part only of tie consideration, has failed. Freeland v. Freeland, 128 509. 289. For a case where, in a marriage settle- ment, made before the G. S., the words "to fBuse of the heirs and assigns of A forever," were construed to be words of limitation, and not of purchase, see Bowditch v. Jordan, 131 321. 290. Under St. 1845, Ch. 208, § 12; G. 8., Ch. 108, §§ 27, 28, (see P. S., Ch. 147, §§ 26, 27), an ante-nuptial contract was absolutely void, if it was not recorded in the county where the husband resided, if he was a resident of this Commonwealth. Ingham ». White, (4 A.) 86 41 291. A stipulation concerning property of the husband, in an ante-nuptial contract, although not avoided by failure to record the contract, will not be enforced in equity, if it is so con- nected with a stipulation concerning the wife's property, rendered void by such a failure, that each forms a part of the consideration of the other. Butman v. Porter, 100 337 292. An ante-nuptial agreement, relating onljr to the rights which either party, after the others- death, may claim in the estate of the deceased, is not a marriage contract which needs to be recorded. Jenkins v. Holt, 109 261 VI. Civil Proceedings by, or against, Hus- band or "Wipe. 293. Under the existing statutes, the husband is not a proper party to an action of trover for the conversion of personal property mortgaged to the wife, although he furnished to her part of the consideration. Hennessey v. White, (2 A.) 84 48. 294. Nor to an action to recover for her ser- vices, rendered on her separate account. Fowle v. Tidd, (15 G.) 81 94; Burke «. Cole, 97 113. 295. Nor to a bill in equity concerning her separate property. Forbes v. Tuckerman, 115 115 296. Although the bill is to redeem her land, from a mortgage, and alleges that her husband is contingently entitled to an estate therein, as tenant by the curtesy, and that an assignee in insolvency of his property has been appointed, neither the husband nor the assignee is a neces- sary party. Conant v. Warren, (6 G.) 72 562. 297. Where, however, a deed of the wife's land is executed by husband and wife, subject to a mortgage given to secure a note signed by both, although stating that the husband signed it, in order "to give validity" to it, the deed reciting that the grantee assumes the mortgage, the promise implied from the acceptance of the- deed is to both, and both must join in an action for the breach thereof. Fenton v. Lord, 128 466. 298. But if the action is brought by the wife- alone, and she has a verdict, after a trial on, the merits, she will be allowed to amend by- joining her husband. Fenton v. Lord. 128 466. 702 HUSBAND AND WIFE, VI; VIL 299. Since the statute of 1871, a husband cannot be joined in an action for a tort com- mitted by his wife. Austins. Cox, 118 58; McCarty v. DeBest, 120 89. See, also, Tobey v. Smith, (15 G.) 81 535. 300. An assignee of an insolvent debtor may maintain a real action against the debtor's wife, without averring that she held the land to her separate use. Blake v. Sawin, (10 A.) 92 340. 301. The declaration or the writ, in an action by a married woman, need not set forth her right to sue. Hubert ». Pera, 99 198. 302. Nor need the circumstances, which make her liable to be sued alone, be set forth in a declaration, for services rendered to her. Van Buren v. Swan, (4 A.) 86 380. 303. But upon the trial, the burden of proof to show the facts, which allow a suit by or against a married woman alone, is upon the party asserting that right. Gregory v. Pierce, (4 Met.) 45 478; Tracy v. Keith, (11 A.) 93 214; Kendall v. Jennison, 119 251. 304. In an action against the husband for necessaries, proof of delivery to the wife, living apart from the defendant by reason of his cruelty, supports an allegation of delivery to him at his request. Benjamin v. Dockham, 134 48. 305. In such an action, evidence of harsh lan- guage, used by the husband to the wife's son in her presence, is competent to show harsh and cruel treatment of her. Mayhew v. Thayer, (8 G.) 74 172. 306. The reasons given by the wrfe for leaving her husband are not admissible, if stated in his absence. Johnson v. Sherwin, (3 G.) 69 374. 307. But in erim. con., her statements, before the act, concerning her husband's cruel treat- ment of her, are admissible in mitigation of damages, to show that the defendant did not alienate her affection from her husband. Palmer v. Crook, (7 G.) 73 418. [See Criminal Conversation.1 308 . In slander by a husband, for charging him with adultery, the defendant cannot show, in order to rebut the inference of malice, that the plaintiff's wife complained of his abuse in connection with her leaving him. Collins v. Stephenson, (8 G.) 74 428. 309. Declarations of the wife to third persons expressive of her mental feelings, are admis- sible in favor of the defendant in an action against her husband for her board. Jacobs v. Whitcomb, (10 C.) 64 255. . [See further upon this question. Evidence, I, (l.)| 310. Where a married woman lives with her husband upon her own real property, there is now no presumption that the husband is, and she is not, liable for the expenses of carrying on the property. Qu., as to the expenses of the family. Lovell v. Williams, 125 439. 811. But money in a wife's possession is pre- sumed to be the husband's property, and must be so alleged in an indictment for stealing it. Comm. v. Williams, (7 G.) 73 837. 312. In an action by a married woman for compensation for her services, evidence that she lives apart from her husband, and that he does nothing for her support, is competent upon the question whether they were performed on her own account. Burke v. Cole, 97 113. 313. So is evidence of deeds from the defend- ant to her, and from her to him. Fowle v. Tidd, (15 G.) 81 94 314. The books of a savings bank are evi- dence, in an action by a husband to recover money, deposited by his wife to her credit, and by her transferred to the defendant's credit. McKavlin v. Bresslin, (8 G.) 74 177. 315. In trover against husband and wife, for a watch delivered to the woman, a demand from and refusal by the wife, is prima facie sufficient evidence of conversion, as there is no legal pre- sumption that the watch was in the possession or under the control of the husband. Polsom v. Manchester, (11 C.) 65 334. 316. In an action brought by a wife, after her husband's death, to recover for injuries to her, while driving with her husband, caused by the defendant's negligence, his statements, in her absence, as to the cause of the accident, the disposition of the horse, and the like, are inad- missible for the defendant. Shaw v. Boston & W. Railroad, (8 G.) 74 45. 817. In an action by a married woman, living with her husband, to recover for a personal injury, she is entitled to recover for the diminu- tion of her capacity to labor. Jordan v, Middlesex Railroad, 138 425 VII. Criminal Proceedings against Hus- band or Wife. 318 In order to convict a married woman, for an act done in the presence of her husband, the prosecution must affirmatively prove, that she did the act in question ( f her own free will and accord, without coercion by him. Comm, v. Trimmer, 1 476; Coram, v. Neal. 10 152, Comm. s. Lewis, (1 Met.) 42 151; Comm, v. Gannon, 97 547; Comm, ■». Eagan, 103 71; Comm. v. Hopkins, 133 381; Comm. «. Gormley, 133 580. 319. If he is near enough for her to be under his influence and control, he is deemed to be present, although not in the same room. Comm. v. Burk, (11 G.) 77 437; Comm. b. Munsey, 112 287. 320. Qu., whether there is an exception to the rule in offences relating to domestic matters, and the government of the house, in which the wife may be supposed to have the principal share. Comm. v. Hopkins, 133 HUSBAND AND WIFE, VII— IOE. 703 821. Qu., whether there is any crime which, tf committed by a wife in the presence of her husband, is conclusively presumed in her favor to have teen committed by his coercion. Comm. v. Gormley, 133 580. 322. Evidence that the husband was lying sick in an adjoining room, the door being open, does not raise such a conclusive presumption. Comm. v. Gormley, 133 580. 323. An unlawful sale of intoxicating liquor hy a married woman, while her husband,was absent, in the dwelling house occupied by then) and hired by her, exposes her to conviction. Comm. v. Roberts, 132 367. See, also, Comm. v. Murphy, (2 G ) 68 510; Comm. «. Butler, (1 A.) 83 4. 324. If there is no evidence that the wife, in making such sales in hef husband's presence, was not acting under his control, the husband may be convicted therefor. Comm. v. Gannon, 97 547. 325. And sales by her in his house, and in his absence, may be proved to charge him. Comm. v. Coughlin, (14 G.) 80 389; Comm. v. Hurley, (14 G.) 80 411: Comm. e. Reynolds, 114 306. 326. The statutes, authorizing a married woman to carry on business on her separate account, do not deprive her husband of his com- mon law right to legulate the household; and he may be convictea *f keeping liquors with intent to sell them illegally, although she has filed a certificate, and taken out a United States license as a liquor dealer, if he knows her intent, and does not use reasonable means to prevent ier from carrying it out. Oomm. e. Barry, 115 146. See, also, Comm. ■». Wood. 97 225; Comm. a, Carroll, 134 30. 327. And it makes no difference that the house was owned by them jointly. Comm. v. Kennedy, 119 811.' 328. And if she hires the house and carries on the business, and he is present, the presump- tion is that she acted under his coercion, and he may be convicted. Comm. «. Pratt, 126 462 329. If a married woman does a criminal act in her husband's absence, although by his command, she is indictable and punishable therefor, Comm. v. Feeney, (13 A.) 95 560; Comm v. Welch, 97 593. 330. A wife who, in pursuance of her hus- band's contract for the illegal sale of intoxi- cating liquors, delivers the same, with knowl- edge of the fact, to the purchaser, in her hus- band's absence, is punishable therefor. Comm. ■». Whalen, (16 G.) 82 25. 331. A married woman, living apart from her husband, may be indicted and convicted of keeping a house of ill fame. Comm. ■». Lewis, (1 Met.) 42 151. 332. And where the husband resides in the house, either the husband or the wife may be indicted, and, upon appropriate evidence, con- victed, either separately or jointly with the other. Comm. v. Cheney, 114 281. See, also, Comm. v. Wood, 97 225; Comm. v. Tryon, 99 445. 333. And the conviction of one is not a bar to the conviction of the other. Comm. v. Welch, 97 593; Comm. v. Heffron, 102 148. I. Ice. IFor rulings inactions against cities or towns, uO recover damages for *njuries caused by snow and Me m the roadway or on the sidewalk, see Hiq 11 - It: i h Aa , to municipal ordinances for ue re- moval, etc., of ice and snow, see Town amb Csrtr, «.(5); Street Eailroad-1 1. As to the construction of a clause In a policy of insurance upon a cargo of ice, reliev- ing the insurer from loss by melting, etc., see Tudor e. New England Ins. Co., (12 C.) t»6 554; cited in Insurance, art. 601. 2. As to a recovery for freight of a cargo of we, partly melted, etc., during the voyage, and wnetner the owners are entitled to general aver- age, see & . Libby v. Gage, (14 A.) 96 261; cited in Shipping, art. 217 to 222. rom ^ t0 the ri S ht °i a tenant at sufferance to remove a wooden ice house filled with ice, and »« a? l^onaMe time for so doing, having S t0 the Perishable character of its con- tents, see Antoni v. Belknap, 102 193. «m„ Cu } ting and Coring ice for sale, is not a manufacture." nor is the building in which it is kept a *' store," within the statutes relating to taxation. Hittinger v. Westford, 135 258. 5. An injunction will not lie, to restrain an upper riparian owner from cutting ice in his pond, situated on the same stream as the plain- tiff's mill below, until the rights of the parties have been determined at law. Cummings v. Barrett, (10 C.) 64 186. 6. The owner of a building with a roof so con- structed, that snow and ice, collecting upon it, from natural causes, will naturally and proba- bly fall into the highway, is liable to one in- jured by such a fall; and it is immaterial that all the rooms are occupied by tenants, if he re- tains control of the roof. Shipley v. Fifty Associates, 101 251; Shipley ©.Fifty Associates, 106 194. 7. But he is not liable if the entire building is let to a tenant, whose control includes the* roof, where it does not appear that the latter might not have cleared the roof, or otherwise have prevented the accident. Leonard v. Storer, 115 86. 8. A "great pond," is public property; and the riirht to cut ice therefrom, for use or sale. 704 ICE— ILLEGAL CONTKACT. J s common to all; and the owners of the shores have no peculiar right in the water or the ice, or the land under them, except by grant from the legislature or prescription. Hittinger v. Eames, 121 539: Gage v. Steinkrauss, 131 222. See, also, West Roxbury v. Stoddard, (7 A.) 89 158. [See, further, as to "great ponds, - ' Fish; Pond.] 9. The lessee of an ice house on the shore of a "great pond," cannot maintain an action against one having a right to fish therein, for cutting holes in the ice cleared by the plaintiff. Rowell v. Doyle, 131 474. 10. Neither the statute authorizing the forma- tion of corporations for cutting, storing, and selling ice, nor G. S., Ch. 161, § 73; P. S., Ch. 203, § 86, punishing malicious injury to ice, re- stricts the common right of the public to the ice, or confers peculiar rights upon any corpo- ration or individual. Hittinger v. Eames, 121 539. 11. The claiming and exercising, for more than 30 years, by the owners of lands bordering upon a great pond, the exclusive right to cut ice thereupon, together with conveyances by them reserving such right, and conveyances of such right, do not entitle a person, in whom such a right purports to be vested by a conveyance, from restraining a grantee of the abutting land, whose deed reserves such a right, from erecting an ice house on his land, and cutting ice from the pond for storage and sale. Hittinger v. Eames, 121 538. See, also, West Roxbury «. Stoddard, (7 A.) 89 158. 12. The town of West Roxbury has no such property in the ice on Jamaica pond, as to en- able it to maintain trespass against an individual for cutting ice therefrom. West Roxbury t>. Stoddard, (7 A.) 89 158. Identity; identification. [See Evidence, IX, (3).] Idiot. [See Lunatic] Idle and disorderly person. [See, also, Lewdness.] 1 . Specification of idle and disorderly persons. See G. S., 165, § 28; P. S., Ch. 207, § 29. 2. St. 1866, Ch. 235, (now in P. S., Ch. 207, § 29), did not repeal G. S., Ch. 165, § 28. Comm. v. Norton, (13 A.) 95 550. 3. Sufficiency of evidence to sustain a com- plaint, under that statute, that a girl was an idle person, without visible means of support, and living without lawful employment. Comm. v. Carter, 108 17. 4. A complaint, under the G. S., is sufficient, if it charges the defendant with being, on a certain day, with a continuando, an idle and disorderly person, and with having neglected all lawful business, and habitually misspent his time by frequenting houses of ill fame, gaming houses, and tippling shops. Comm. v. Sullivan, (5 A.) 87 511. 5. No exception lies to a general instruction to the jury upon the trial, under such a com- plaint, or to the refusal of the judge to define what constitutes habitual misspending of the defendant's time, or to explain how much time it is necessary for the government to show that the defendant misspent. Comm. ■». Sullivan, (51.) 87 511. 6. An indictment of a woman for being an idle and disorderly person, under P. S., Ch. 207, § 29, is supported by evidence that she was seen frequenting houses of ill fame, etc., and not known to be in any lawful occupation or work, without evidence of her want of pecu- niary resources for her maintenance, or that she has refused work offered to her. Comm. ». Doherty, 137 245; Coram. v. Hart, 137 247, note. 7. A complaint following the language of the statute suffices, without an allegation that the defendant was under any necessity or duty of supporting herself, or following any busi- ness. Comm. ■». Brown, 14:1 78. 8. A complaint before a justice of the peace, charging that the defendant, on a certain day, with a continuando, was a common railer and brawler, is sufficient, without specifying any specific acts of railing and brawling. Stratton v. Comm., (10 Met.) 51 217. 9. On the trial of an indictment for being a common railer and brawler, loud and violent language, used by the defendant in sudden altercations, although in his own dwelling house, will sustain the charge, in connection with other evidence, showing that he is accus- tomed to use immoderate and vituperative language, so publicly and frequently, as to be a common disturber of the public peace. Comm. s. Foley, 99 497. 10. On the trial of a complaint for being a disturber and breaker of the peace, and alleging that on a certain street, the defendant uttered loud exclamations and outcries, and thereby drew together a number of persons, to the great damage and common nuisance of all citizens of the Commonwealth, there being, etc.; proof that he had an altercation with a constable, in which he talked in a loud and angry tone, thereby attracting a crowd, some of whom en- couraged him, is no variance; and he cannot ask a witness whether he saw anything, indi- cating that the citizens were disturbed or annoyed. Comm. v. Harris, 101 29. See, how- ever, Comm. b. Smith, (6 C.) 60 80; Comm. -b. Oaks, 113 8. Illegal contract. [See Contract, n, ( );in,o)j ILLEGAL VOTING— IMPOUNDING. 705 Illegal voting. [See Ejections and Electors, I, (2).] Illegitimate child or relative. [See bastard; descent and Distribution, it. J 111 fame, house of. [See Bawdy House.! Illuminating fluid. 1. A declaration averring that the defendant, knowing A to be a retailer of illuminating fluids, and that naphtha was explosive and dangerous to life for such a use,' sold and delivered to him naphtha, knowing that he intended to retail it in his business; that A sold a pint thereof to the plaintiff for that pur- pose; that the plaintiff used it accordingly, A and the plaintiff being ignorant of its dangerous properties; and that while the plaintiff was so using it, it exploded and injured him; sets forth a good cause of action at common law. Wellington v. Downer K. O. Co., 104 64. 2. There is no conclusive presumption that a retailer of illuminating fluids, or a person buy- ing them for use, is aware of the danger of so burning naphtha. Wellington v. Downer K. O. Co., 104 64. 3. The right of action given by St. 1867, Ch. 286, to any person suffering damage from the explosion or ignition of fluid, unlawfully sold under the statute, extended to injuries to prop- erty, and included all persons to whom a pur- chaser from such seller mightgive or resell it. Wellingtons. Downer K. O. Co., 104 64. 4. Sumciency of a declaration under that statute. Wellington o. Downer K. O. Co., 104 64. 5. Qu., whether under that statute, it was necessary, in order to charge, civilly or crim- inally, a seller of naphtha, under the name of ou, to prove that he knew that it was naphtha. Wellington v. Downer K. O. Co., 104 64. in?' P?i der St - 1869 > Ch - 153 ' § 4 ; p s - Ch. of the ff SUCh knowled S e is not an ingredient Comm. v. Wentworth, 118 441. k P L?° r ' M nder that statute, is knowledge that mSL °? was under the statutory standard, accessary to render the seller thereof liable to a S,* 1 ™ b y a person injured; and it is no thTT * an authorized inspector certified S™/° nformed t0 that standard. And the jurea person ^ recover if he was usln such care as would have been proper, if the ofl "w conformed thereto. Hourigaao. Nowell, 110 470. WOL. 1—89 8. Where, in a complaint, under the statute of 1869, the defendant contends that the article sold by him, although originally naphtha, had been so combined with other chemical ingredi- ents, as to counteract its explosive qualiiies, he has no ground of exception to an instruction to the jury that they are to decide whether it was or was not "substantially" naphtha. Comm. v. "Wentworth, 118 441. 9. The statute does not justify the refining of petroleum, at any place, where the vapors thereof will create a nuisance at common law. Comm. v. Kidder, 107 188. 10. A city is liable for injuries sustained by an explosion of naphtha, negligently stored in a building owned by it, under the direction of the proper municipal authorities. Sullivan v. Holyoke, 135 273 Impotency. [See Divorce, II, (5).] Impounding ; field driver. [See, also, Estray; Fence.] 1. One, whose land is injured by trespassing cattle, has his election of remedies, either by im- pounding them, or by an action of tort. Driv- ing the cattle into the highway, and detaining them until the owner came and took them away, and then demanding a sum of money as damages, is not impounding them. Conners v. Loker, 134 510. 2. A pound keeper is not answerable for the illegality of a distress, or for any failure of duty on the part of the person distraining, if the beasts are committed to him for an alleged cause, which would render the distress lawful. Folan v. Hinckley, (5 C.) 59 263; Anthony v. Anthony, (6 A.) 88 408. 3. Beasts may be lawfully impounded in a yard, furnished and used by the town as a pound, although the inhabitants have not passed a vote, or taken any other action at town meet- ing, to establish it as a pound. Anthony t>. Anthony, (6 A.) 88 408. 4. A distrainer has the election to restrain the beasts in the town pound, although he has another place more convenient for supplying them with food and water. . Adams v. Adams, (13 P.) 30 384. 5. A field driver cannot, at the same time, distrain and impound cattle for both the causes prescribed by Q. S., Ch. 25; P. S., Ch. 36; i.e., for going at large on the highway, and for doing damage to private land. Philips v. Bristol, 131 426 6. And if one cause of the impounding is damage done to A's land, a notice to the owner, stating that they were impounded " for being at large out of inclosure in the highway, said cattle delivered to me in said highway by the agent of A," and stating a sum for fees and damages, is not sufficient under the statute. Phillips 8. Bristol, 131 426. 706 IMPOUNDING. 7. A land owner who distrains beasts damage feasant, and impounds them, or delivers them to the pound keeper on the highway, but does not leave with him the memorandum required by statute, is a trespasser ab initio, and as such is liable to the owner, although the pound keeper, who is also a field driver, gives the owner notice as a field driver. ., Sherman a. Braman, (13 Met.) . 54 407. See, also, Merrick v. Work, (10 A.I 92 544; Newhouse v. Hatch, 126 364. 8. If the beasts are delivered in the highway to the pound keeper, the distrainer is a tres- passer ab initio, unless he also gives the requi- site notices. Merrick v. "Work, (10 A.) 92 544. 9. So if the memorandum delivered to the pound keeper fails to state the cause of im- pounding. Newhouse v. Hatch, 126 364. 10. A distrainer is not liable as a trespasser ab initio, or otherwise, for injuries received in the town pound from other beasts therein. Brightman v. Grinnell, (9 P.) 26 14. 11. A field driver, or other person who im- pounds cattle, is a trespasser ab initio, if he fails to give them food and water, as often as usage and good husbandry require. Adams v. Adams, (13 P.) 30 384. 12. A field driver, who impounds cattle for going at large in the highway, is not bound, under § 27 of the G. S. (P. S., § 30}, to leave with the pound keeper the memorandum speci- fied in that section. "Wild .v Skinner (23 P.) 40 251; Pickard v. Howe, (12 Met.) 53 198; Sanderson » Lawrence, (2 G.) 68 78. Bruce v. Holden, (21 P.) 38 187, over- ruled pro tanto. 13. His notice, in such a case, to the owner, is prima facie evidence that they were at large Pickard e. Howe, (12 Met.) 53 198. 14. A turnpike is a highway within the statute. Pickard v. Howe, (12 Met.) 53 198. 15. A notice by a field driver, or private dis- trainer, to the owner, need not state the hour of impounding; and proof that it was left with one of his family, at his dwelling house, autho- rizes a jury to find that it was left at his place of abode. Pickard v Howe, (12 Met.) 53 198. 16. The field driver's name may be signed by another authorized by him. Pickard v Howe, (12 Met.) 53 198. 17. The owner's actual knowledge of the impounding does not dispense with the notice. Coffin o. Field, (7 C.) 61 355. 18. But if he replevies them within 24 hours after the impounding, he cannot object that notice was not given to him. Wild®. Skinner, (23 P.) 40 251; Field v. Jacobs, (12 Met.) 53 118. 19. As to the sufficiency of the notice to the owner, under St. 1788, Ch. 65, the R. S. and the G. S., see Gilmore v. Holt, (4 P.) 21 258; Ly- man d. Gipson, (18 P.) 35 422; Sander- son v. Lawrence, (2 G.) 68 178. 20. As to the sufficiency of a notice, posted and published in a newspaper, see Cleverly v. Towle, (3 A.) 85 39. 21. In an action by the owner of the beasts against a field driver, or other person, the burden is upon the defendant to show that ha gave the statutory notice', and that he' posted and published it, in a case where that is re- quired. Pickard v. Howe, (12 Met.) 53 198; Coffin ». Vincent, (12 C.) 66 98. 22. Afield driver, having lawfully impounded beasts, and given the required notice, is not liable to the owner as a trespasser ab initio, for failing to sell them or return them, in conse- quence of the default of the pound keeper, or the insufficiency of the pound. Coffin «. Vincent, (12. C.) 66 98. 23. One who finds cattle going at large in the highway, and drives them along until he finds afield driver, is not a "keeper" of the cattle within R S., Ch. 19, § 22; G. S., Ch. 25, § 21; P. S., Ch.'36, §23. Bruce v. White, (4 G.) 70 345. 24. Cattle are not the less "going at large" upon the highway, because they have left a drove going to pasture with a proper driver, and turned into a different road going to the same pasture, and the driver returns for them in less than an hour. Bruce v. "White, (4. G.) 70 345. 25. A field driver is not liable for the act of the pound keeper, in taking a beast impounded by the former out of the pound, and putting it in his own barn. Byron v. Crippen, (4 G.) 70 312. 26. As to the right of a field driver to detain, temporarily, in a place other than the pound, beasts seized by him, see Pierce «. Josselyn, (17 P.) 34 415; Byron v. Crippen, (4 G.) 70 312; Dean v. Lindsey, (16 G.) 82 264; Parker v. Jones, (1 A.) 83 270. 27. The owner of beasts unlawfully dis- trained or impounded may maintain trespass; he is not confined to replevin by R. S. Ch. 113, § 17; G. S. Ch. 143, § 1; P. S. Ch. 184, § 1. Coffin v. Field, (7 C.) 61 355. 28. He does not waive his right of action against the field driver, by paying the latter's and the pound keeper's fees, or by declarations made after the suit was brought. Coffin ■». Field, (7 C.) 61 355. 29. In an action for taking and carrying away beasts, some of which were impounded by the defendants, as field drivers, the plaintiff is not restricted to damages for those impounded, by an agreement between the parties, that " to avoid another suit," he may give evidence of the manner of driving them, and of improper and injurious treatment after impounding. Folger v. Fields, (12 C.) 66 93. 30. To constitute a rescue of beasts dis- trained, there must be an actual possession in the person from whom the beasts are taken; any forcible interruption of his possession is a res- cue, and a recapture does not purge it, although, made by the consent of the defendant. Vinton v. Vinton, 17 342. IMPOUNDING— INCOME,. ETC., I. 707 11 After a beast legally impounded had been' rescued by others, its owner met the nscuers driving the beast to his house and, with full knowledge of the facts, aided to drive it. and it was held that he was liable for a 5 ° Und pi r erce h ,.Josselyn,(17P.) 34 415. 32 Now, the statute provides that the ille- gality of the distress or of the impounding, can- not lie shown in defence of an action for a rescue Aliter, before the statute. Melody «. Reab, 4 471. 33. But upon an indictment for a. pound breach, it could not be shown. Coram. ». Beale, (5 P.) 22 514. 34. So, under the R. S., in an action by a field driver, for his fees and charges. Field ii. Coleman, (5 C.) 59 267. 35. Tor other rulings, as to rescue or pound breach, under obsolete statutes, see Berry v. Ripley, 1 168; Comm. e. Beale, (5 P.) • 22 514. 36. A vote of the town, under St. 1799, Ch. 61, and St. 1804, Ch. 44, restraining cattle from going at large, was binding upon nonresidents. Gilmore v. Holt, (4 P.) 21 258. 37. Under the R. S., where an impounded heast was sold for nonpayment of the appraised damages, within twenty minutes before the expiration of 24 hours since the appraisment, it was held that the field driver was a tres- passer ab initio. Smith «. Gates, (21 P.) 38 55. 38. For other rulings under obsolete statutes, see Field drivers might impound beasts going at large on Sunday Wild «. Skinner, (23 P.) 40 251. As to application for a warrant to appraise im- pounded beasts, appraisers' oath, and appraise- ment, under St. 1788, Ch. 65. Gilmore v. Holt, (4P ) 21 258; Lyman '" on, (18 P) 35 122. Incest. 1. Under R. S., Ch. 137, § 11; G. S., Ch. 172, § 16; P. S., Ch. 214, § 18, one indicted for a rape upon his daughter may be convicted of incest, if the jury find the criminal connection, and that it was not by force and against her ■will. Comm. v. Goodhue, (2 Met.) 43 193. See. also, Comm. «. Squires, 97 59. Income and capital. I. Who takes Income, and from what Time. II. What is Income and what Capital. III. Sums chargeable to Income and Capi- tal RESPECTIVELY. [See, also. Apportionment; Devise and Be- quest, III, (1); Tenant tor Life; Trust, III; Trustee, II, (b). 39. An inhabitant of a town, taking up cattle going at large, contraiy to a vote of the inhabi- tants, might impound them in his private close. Gilmore v. Holt, (4 P.) 21 258. Imprisonment. [See Arrest; Conviction and Sentence: uabeas Corpus; House of Correction; Jail.] Imprisonment, false. [Action for. See Arrest, III,] Improvements. <6pft? n 1™?vJ' < 2) ; Execution, V; Highway, IV, ffl 5w? E ' lt ]< Town and City, VI; Partition, *". W, Keal Action, IV, (2); Mortgage, IV, (3).] I. Who takes Income, and from what Time. 1. A tenant for life, or other person to whom income is given by a will, is entitled to the income of a special fund set apart by the testator, or a residue given in trust, from the time of the testator's death. Sargent v. Sargent, 103 297. See, also, Lamb v. Lamb, (11 P.) 28 371; Minot v. Amorv, (2 C.) 56 377; Lover- ing v. Minot, (9 C.) 63 151; Williams e. Bradley, (3 A.) 85 270; Pollock «. Learned, 102 49; Billings v. Billings, 110 225; Ayer «, Aver, 128 575; Cushing v. Burrell, 137 21. 2. Where the income consists of coupons or dividends, payable at fixed periods, the whole of each belongs to the person entitled to the income when it falls due, without apportion- ment. Sargent v. S-rgent, 103 297. See, also, Wiggin v. Swett, (6 Met.) 47 194. 3. Where a testator leaves property, in which an executor or trustee cannot lawfully invest, the latter is allowed a proper time to dispose of it; but this does not make the investment an authorized one ad interim, ro as to entitle the tenant for life to the actual income; he is to be allowed a fixed percentage. Hemenway ». Hemenway, 134 446. 4. But where the will authorizes the trustees to retain the investment as they receive it, the whole income, until conversion, goes to the tenant for life. Hemenway v. Hemenway, 134 44b. 5. Por additional rulings upon this question, and illustrations of the application of the rule, and also a statement of the mode in which the profits are to be distributed, between the capital and the income, see Kinmonth v. Brigham, (5 A.) 87 270; Westcott v. Nickerson, 120 514. 6. Under a devise to trustees of land, leased at a rent payable quarterly, in trust to collect the income and pny" the same, less expenses, to A. for life, and the capital to B after her death, 708 INCOME, ETC., II; BEL A is entitled to the entire instalment of Tent falling due on the next quarter day after the testator's death, without apportionment. Sohiem. Eldredge, 103 345. 7. Where the income of shares in a corpora- t'on is bequeathed to the testator's widow for life, for her own support and that of her child- ren, her executor is entitled to a dividend de- clared thereupon after her death, for a period which expired during her life, although the shares still stand in the name of the testator's estate. Johnson v. Bridgewater I, M. Co., (14 G.) 80 274. II. "What is Income and what Capital. 8. Where part of land held in trust for one for life, with remainder to another, is taken for public use, the compensation therefor paid to the trustee is to be held by him as principal, not to be paid to the tenant for life as income. Rathbun v. Colton, (15 P.) 32 471; Gibson v. Cooke, (1 Met.) 42 75. 9. And a dividend to shareholders in a cor- poration, for land taken by right of eminent domain, belongs to the capital, not to the income, of a trust fund invested in the shares. Heard v. Eldredge, 109 258. 10. The character of the property and the transaction, not the intention of the directors, determines the question whether a dividend upon shares in a corporation is capital or in- come. Heard v. Eldredge, 109 258, disap- proving, pro tanto, Minot i>. Paine, 99 101; Lelandfl. Hayden, 102 542. See, however, Gifford v. Thompson, 115 478. 11. But, as a general rule, stock dividends are to be regarded as principal, and cash divid- ends as income. Minot v. Paine, 99 101; Leland v. Hayden, 102 542; Rand «, Hubbell, 115 461 12. Where, however, the substantial effect of the transaction is to make a cash dividend, al- though, tor the convenience of the corporation, the dividend is made pro forma in stock, or vice versa, the dividend will be applied to prin- cipal or income, in accordance with the sub- stantial effect. Daland v. Williams, 101 571; Le- land v Hayden, 102 542; Rand v. Hubbell, 115 461. 13. Where a corporation votes to increase its capital stock, and that the stockholders may subscribe therefor pro rata, and any new shares not taken shall be sold, and the premiums paid to those enti led to subscribe, the sum received upon the sale is capital to the stockholder. Atkins «. Albree, (12 A.) 94 359. 14. Cash dividends by a manufacturing cor- poration, although from the proceeds of the sale of patent rights and castings, are income. Harvard College v. Amory, (9 P.) 26 446. 15. And cash dividends by a land company, formed to sell land, from the proceeds of such sales, are Income. Balch *. Hallet, (10 G.) 76 402; Reed ». Head, (6 A.) 88 174. -.6. Where a corporation, having sold its- franchises and property, and being about to dissolve, votes to pay a dividend therefrom to. its stockholders, upon surrender of their certifi- cates, the entire sum received by a trustee for his certificates is capital, although part of the assets were undivided earnings. Gifford v. Thompson, 115 478. 17. Where the directors of a corporation vote a cash dividend to pay for new stock, if the issue of the stock is void for noncompliance with St. 1870, Ch. 179; P. S., Ch. 105, § 20, the cash dividend cannot be claimed by one entitled to the income of certain shares. Rand ». Hubbell, 115 461. 18. Upon the settlement of a trustee's ac- count, it may be determined whether a sum of money is to be treated as the capital or the in- come of a trust fund. New England Trust Co. v. Eaton, 140 532. See, also, Harvard College «. Amory, (9 P.) 26 446; Heard v. Eldredge, 109 258; Bowker v. Pierce, 130 262; Dodd «. Winship, 133 359. III. Sums chargeable to Income and Cap- ital RESPECTIVELY. 19. A trustee's charges for services during the life of the tenant for life, and for money paid to counsel at the time of his appointment, cannot be deducted from income accruing after the death of the tenant for life, or from the capital; they should have been deducted from the income during her life. Parker v. Ames, 121 220. 20. And commissions to brokers, for pur- chases of bonds for investment, are chargeable upon the income. Heard v. Eldredge, 109 258. 21. So of succession and legacy duties, pay able with respect to the interest of the tenant for life. Sohier v. Eldredge, 103 345. 22. So of taxes; including taxes for the year in which the tenant for life died, if he died after the day, as of which the property was taxed. Holmes v. Taber, (9 A.) 91 246. 23. In a special and peculiar case, taxes and costs were charged to the capital,_ by virtue of an agreement between the parties interested. Howland «. Green, 108 277. 24. Where a will gave property to the tes- tator's children absolutely, and other property to trustees for their benefit for life, and di- rected that certain advancements should be deducted from their shares, one half from the property given absolutely, and one half from that gives, in trust, it was held that the deduc. INCOME, ETC., in— INDIAN. 709 tlons from the fund given in trust must be made from the principal. Cummings v. Bramhall, 120 052. 25 Additions and permanent improvements to property held in trust, are properly charge- able upon the capital. ..,,_ ._ ._. Watts «. Howard, (7 Met.) 48 478; Sohier v. Eldredge, 103 345. 26. The expense of putting up a building be- longing to a trust fund is properly chargeable upon the capital; but the expense of keeping it afterwards in repair, is payable from the income. Parsons ». Winslow, 16 361; Sohier v. Eldredge, 103 345. 27. Where the fund consisted partly of two wharves out of repair, the trustees were allowed, upon a bill of interpleader, to put them in repair, so as to increase their value to the amount of the sums expended. Sohier v. Eldredge, 103 345. 28. Where a trustee had lost part of the fund, and was removed, the new trustee was directed to pay to the widow, the tenant for life, for arrears of her income, interest cast on the net proceeds of the estate received from the former trustee, and that sum being deducted, the remainder was to form the new capital. Parsons v. Winslow, 16 361. 29. As between the tenant for life and the remainderman, an assessment for a betterment, occasioned by a public improvement, is an in- cumbrance, to which the tenant for life must contribute, to the extent of interest during his life on the amount thereof, and at his death the remainderman must bear the charge of the principal. Plympton v. Boston Dispensary, 106 544. 30. Where the property is held in trust, the trustee may pay the assessment out of the cap- ital, and charge the interest as may be equitable, if there are two or more interested in the income. Plympton v. Boston Dispensary, 106 544. _ 31, In general, where investments are made in property of a permanent character, the loss or gain of such investments is that of the corpus of the estate. New England Trust Co. «. Eaton, 140 532, 32 Where permanent improvements are placed upon real property, they are a charge upon the capital; but usual and ordinary re- pairs are to be deducted from the income. New England Trust Co «. Eaton, 140 532. 33. A trustee, who invests in bonds purchased « a premium, may deduct from the interest received such a sum, as will, by successive de- capitT' mSke g °° d the P remium t0 the New England Trust Co. v. Eaton, 140 Jjf-.^here trustees were authorized by a will »nora the residuary property invested as they wuid receive it, and the testator was a member 2//°P artnersni P> the articles of which pro- «oea, that the executors of a deceased partner should be entitled to his share of the profits, to the taking of the second semi-annual account after his death, and the testator had loaned the firm money; it was held that profits received by the trustees, above the interest on the loans, were capital. Mudge «. Parker, 139 153 Incumbrances, covenant against. [See Covenant, II, (4).] Indecent exposure. |Soe Indictment, art. 200, and VXH, (IB) ; Lewd- ness.] Indemnity. tSee Bond, III, (1) ; Collateral Security; Con- tract, IV, (7) ; Guaranty; Joint Liability, II, (2) ; Mortgage, II, (2) ; Office and Officer, I, <3).] Indenture. ISee, also, Apprentice; Covenant; Deed; Grant; Seal.] 1. Where deeds indented are interchangeably executed, each part of the indenture is the deed of both parties, although each party has put his seal to one part only. Dudley ». Sumner, 5 438. 2. And where a corporation is one of the parties, and opposite each signature is a small bit of paper, attached by a wafer, the instru- ment is the deed of the corporation, as well as of the individual, Milldam Foundery v. Hovey, (21 P ) 38 417. Independent and dependent stipu- lations. (See Contract, IV, (4).] Indian. 1. Before St. 1869, Ch. 463; P. S., Ch. 6, §4, Indians were treated as wards of the Common- wealth; and the title to lands occupied by them was in the Commonwealth, and the use and im- provement of such lands were regulated by the legislature. Pells ». Webquish, 129 469. See also, Danzell o. Webquish, 108 133; Ex parte Coombs, 127 278. 2. In enfranchising the Indians by the statute referred to, it was not the intention of the legis- lature to give, at once, to the several tribes, the absolute and unqualified control of the common lands occupied by them. The statutes relating to such lands are constitutional. Ex parte Coombs, 127 278. 3. The deed of an Indian proprietor in the district of Marshpee, made to a person not a 710 INDIAN— INDICTMENT, ETC. proprietor, is void under St. 1834, Ch. 166, and is not validated by the subsequent admission of the grantee to the proprietorship, nor by the act of 1869; nor are the heirs of the grantor estup- ped to set up title. Pells a. Webquish, 129 469. 4. An enumeration of proprietors, 50 years old, made under St. 1818, Ch. 105, taken from the files of the governor and council, is admis- sible to prove that the grantee was not a propri- etor, although it is signed by one only of the three overseers. Pells «. Webquish, 129 469. . 5. See further, as to the construction of acts relating to particular tribes: Marshpee Indians, St. 1788, Ch. 38. Hall v. Gardner, 1 172. Chappequiddic Indians (Indians in Duke county), St. 1837, Ch. 114. Thaxter v. Grinnell, (2 Met.) 43 13. Gay Head Indians, St. 1811, Ch. 78, 8 2; St. 1862, Ch. 184. Mayhew v. Gay Head, (13 A.) 95 129. Herring Pond Indians, effect of St. 1869, Ch. 463, § 3. Danzell ». Webquish, 108 133. Marshpee Indians, St. 1870, Ch. 293, § 6. "i Coombs, 127 278. 6. Before the statute of 1869, Ch. 463, the disability of an Indian to sue in his own name for assault and ba tery could be pleaded in abatement, before answering ou the merits. Jaha v. Belleg, 105 208. 7. Conveyances by Indians of their aboriginal title, in the time of the colony or of the pro- vince, without the license or approbation of the general court, were void under Prov. St., 13 Will. Ill, <'h. 20; but an acquired title by an individual Indian might be conveyed. Clark v. Williams, (19 P.) 36 499; Lynn v. Nahant, 113 433. 8. So of a mere release of the Indian title to persons seized under grants from the govern- ment. Brown «. Wenham, (10 Met.) 51 495. Indictment; subsequent pleadings; complaint. I. In what Cases an Indictment libs; how FOUND. II. Formal Requisites. (1.) Caption; venue; commencement. (2.) Mutilation; erasures; interlineations. (3.) Conclusion (4.) Signatures. III. Statement of the Crime. (1.) Time and place. (2.) Person injured; property owner; other person mentioned. (3.) Property taken, injured, destroyed, or unlawfully used; value thereof. (4.) The criminal act. (5.) Knowledge; intent. (6.) Technical characterization of the crime. IV. Other Rules of Pleading. (1.) Joinder of offences; two or more counts; duplicity. (2.) Joinder of defendants. (3.) Describing written instruments. (4.) Indictment upon a statute. (5.) Surplusage; repugnancy. (6.) Misnomer. (7.) Amendment. V. Modes of objecting to Defects. (1.) Arrest of judgment. (2.) Motion to quash; formal defects. (3.) Objections taken at the trial. (See Ex- ception; New Trial; Trial.) VI. Pleadings subsequent to the Indict- ment. (1.) Demurrer. (2.) Plea. (3.) Subsequent pleadings. VII. Complaint. VIII. Indictments and Complaints in par- ticular Cases. (1.) Abortion. (2.) Abuse of female child. (See post, VHI, (72). ) (3.) Accessory. (4.) Adultery. (5.) Amusement. (6.) Animal. (See^os*, VIII, (23); VHI, (26).> (7.) Arson, and other criminal burning. (8.) Assault and battery. (9.) Barratry. (10.) Bawdy house; house of ill fame; disor- derly house. (11.) Betting and gaming. (See post, VIII, (37).) (12.) Billiards. (See ante, VHI, (5).) (13.) Blasphemy. (See Blasphemy.) (14) Breaking and entering a building. (See ante, VIII, (7); and post, VIH, (17).) (15.) Bribery. (16.) Bridge; draw bridge. (17.) Burglary; other criminal breaking and entering; burglarious tools. (18.) Burning, criminal. (See ante, VIII, (7).) (19.) Carrier. (See Carrdsr, IV, (2).) (20.) Conspiracy. (21.) Corporation. (See Carrier, IV, (2), av&post, VHI, (55); VIII, (60).) (22.) Counterfeiting. (See post, VIII, (35).) (23.) Cruelty to animals. (24.) Dangerous weapon. (25.) Disturbance of meeting. (26.) Dog, unlicensed. INDICTMENT, ETC., I. 711 • (27.) Drunkenness. i28.) Elections and electors. (See Ejections, ma, I, (2)0 (29.) Embezzlement (30.) Escape. (31.) Extortion. (32.) False personation. (33.) False pretences. (34.) Forcible entry and detainer. (See Fob- enM Entry, etc., II.) ■ (35.) Forgery; counterfeiting. (36.) Game, unlawful. (See ante, VIII, (5).) (37.) Gaming. (38.) Highway. (See Highway, V, (3); V, (4» (39.) Homicide. (40.) Horse railroad, obstructing. (See post, VIII, (63).) (41.) House of ill fame; house of prostitu- tion. (See ante, VIII, (10).) (42.) Illegal voting. (See Election s, etc., I, (2)-) (43.) Indecent exposure. (See Lewdness, mi post, VIII, (41).) (44.) Innkeeper See Inn; also, post, VIII, (47), VIII, (61).) (45.) Insurance company; defrauding. (See mte, VIII, (7); VIII, (20).) (46.) Intimidation. (47.) Intoxicating liquors. (A.) Indictment. (B.) Complaint. (48.) Larceny. (49.) Lewdness. (50.) Libel. (51 ) Lord's day. (52.) Lottery. (53 ) Malicious mischief. (54 ) Manslaughter. (See ante, VIII, (39).) (55.) Master and servant. (56.) Militia law. (57.) Milk. (58.) Mortgage. (59.) Murder. (See ante, VIII, (39).) (60.) Negligence. (61.) Nuisance. {A.) In general. (B.) Under the nuisance acts, St. 1855, Ch. 405; G. S., Ch. 87, §§ 6 to 9; St. 1866, Ch. 280, § 3; P. S., Ch. 101, §§ 6 to 9. , (62.) Obscene publication. (63.) Obstruction of horse and steam railroads. (64.) Obstruction of -justice. (See post, VIII, (84).) ).) Officer, assault upon. (See ante, VIII, (69.) Provisions, unwholesome. (70.) Prize fighting. (71.) Railroad. (See ante, VIII, (60); VIII, (63); Cabbier, IV, (2); and Obstruction, etc.) (72.) Rape; abuse of female child; attempt at. (73.) Receiving stolen goods. (74.) Rescue. (75.) Riot. (76.) Robbery. (77.) Street railroad. (See ante, VLTI (63); and Obstruction, etc.) (78.) Theatrical exhibition. (See ante, VIII, (5).) (79.) Threat to accuse of crime. (See ante, VIII, (31).) (80.) Unlawful game. (See ante, VIII, (5).) (81.) Vagrant. (See ante, VIII, (49); Idle, etc., Person.) (82.) Violating grave. (See Burial, III.) (83.) Way. (See Highway, V, (3); V, (4).) (84.) Witness. [For analogous cases and additional rulings, see the titles of the different crimes and subjects of crimes; also Carrier; Conviction and Sentence; Former Adjudication; Grand Jury; Highway; Jury; Practice, II; Record; Trial.] )•) 1.) Perjury, and subornation of perjury. f.) Poisoning, i.) Polygamy. I. In what Cases an Indictment lies; how found. [See, also, Grand Jury.] 1. The method of prosecuting for an offence, in the superior court, is by indictment; but in the police court by complaint. The police court has concurrent jurisdiction with the supe- rior court, where a fine does not exceed $100; and a statute affixing that penalty, and provid- ing that it may be recovered by complaint before any court of competent jurisdictiont does not exclude the jurisdiction of the superior court to proceed by indictment. (. omm. i). Haynes, 107 194. 2. Where the statute provides that an offender shall forfeit and pay a certain sum of money, the forfeiture maybe recovered, either by indict- ment, or by action of tort in the name of the Commonwealth; unless other provision is made in the statute itself. A private person cannot, in such a case, bring a qui tarn action, although the statute gives part of the penalty to the in- former. Smith ». Look, 108 139; Comm. r. Look, 108 452. See, also, Comm. v. Cheney, 6 347; Colburn ». Swett, (1 Met.) 42 232; Nye v. Lamphere, (2 G.) 68 295; Wheeler i>. Goulding, (13 G.) 79 539. 3. Where an act is already made penal, and punishable by indictment, and a statute gives a further mode of prosecution, this is cumulative, and does not take away the former remedy. Comm. e, Howes, (15 P.) 32 231. 4. So where an act is made an offence by statute, which was not so before, and no rem- edy or mode of prosecution is directed, it may be prosecuted by any common law remedy adapted to the case. Comm. * Howes, (15 P.) 32 231; Colburn v. Swett, (1 Met.) 42 232. 712 INDICTMENT, mO„ I; H, (1). 5. But in such a case, if the statute points out a mode of prosecution, that mode alone can be pursued. Comm. «. Howes, (15 P.) 32 281. 6. An indictment is the proper mode of pro- secution for neglect of a public duty, by an in- dividual or a corporation, either by misfeasance or nonfeasance. Comm. v. Central Bridge, (12 C.) 66 242; Comm. v. New Bedford Bridge, (2G.) 68 339. 7. For a definition of an indictment, see Watson ®. Moore, (2 C.) 56 133; Comm. v. Smyth, (11 C-) 65 473. See, also, per Shaw, Ch. J., in Colburns. Swett, (lMet.) 42 232. 8. Where an offender may be prosecuted, either by indictment or information qui tam, he shall answer to that which is first commenced, and is not liable afterwards to the other. The prosecution by information is commenced by riling the information; that by indictment by filing the indictment. Comm. v. Cheney, 6 347. 9. The signature of the foreman of the grand jury to an indictment, certifying it to be a true bill, imports that it was found by twelve or more grand juors, Turns ». Comm., (6 Met.) 47 224. [As to the qualifications of grand jurors, the mode of objecting to them, the number requisite to find an indictment, and other matters relating to their action, see Grand Jury.] 10. A grand jury, without; examining wit- nesses anew, may find an indictment as a sub- stitute for another indictment, found by them upon an investigation at a previous term. Comm. v. Woods, (10 G.) 76 477, II. Formal Requisites. (1.) Caption; venue; commencement. 11. Where there is nothing in the record to show on what day an indictment was found, it is presumed to have been found upon the first day of the term; and such is the proper form of the caption. Comm. 0. Wood, (4 G.) 70 11. 12. Wherever it is necessary to fix the exact day, the actual time can be shown by the cer- tificate of the clerk, indorsed upon the indict- ment, or other proper entry. Comm. *. Wood (4 G.), 70 11. See, also, Comm. », Stone, (3 G.) 69 453. 13. Where an indictment is found for an offence, committed after the commencement of the term, the caption should show that the term was continued by adjournment to a day, subsequent to the commission of the offence. Comm. v. Gee, (6 C.) 60 174. 14. It is no objection to an indictment, pur- porting to have been found on the first day of the term, that the grand jury were not impan- elled until the next day. Comm. v. Colton, (11 G.) 77 1, 15. An omission in the caption of the date of holding the term, is immaterial, where the date of the presentment and return is stated in the clerk's indorsement, and the allegation in the indictment, of the time of the commission of the offence, is consistent therewith. Comm. 0. Hines, 101 33; Comm. v Bearse, 108 487. 16. So of a defective description of the term in the caption. Comm. v. Bearse, 108 487. 17. So of an error in the date of the caption. Comm. v. Brown, 116 339. 18. The caption merely shows the day when the term was begun, not the day of the return of the particular indictment; it is added by the clerk as a general caption, embracing all the indictments found at the term. Comm. 0. Stone, (3 G.) 69 453; Comm. v. Edwards, (4 G.) 70 1; Comm. v. Hamilton, (15 G.) 81 480; Comm. v. Chamberlain, 107 209. 19. And where the caption states that the in- dictment was found at a term held on the first Monday of July, and that was the fourth day of July, the indictment is not vitiated. Comm. v. Chamberlain, 107 209. 20. Where a caption begins, "At the supe- rior , begun and holden," etc., and the record and the clerk's certificate show that it was found at a term of the superior court, be- ginning on the day stated, the omission of the word "court " does not vitiate it. Comm. v. Mullen, (13 A.) 95 551. 21. Where the caption recites that the indict- ment was found at the superior court, begun and holden, etc., for the county of Suffolk, and the indictment begins: "The jurors for the Commonwealth of Massachusetts, on their oath present," it sufficiently shows that it was re- turned by the grand jury for the county of Suf- folk; and if the record shows that the proper number of grand jurors were drawn, summoned, and appeared, etc., and returned indictments, it jurors sufficiently appears of record that the grand were qualified. Jeffries e. Comm., (12 A.) 94 145. See, also, Comm. v. Edwards, (4 G.) 70 1. 22. And a caption running thus, "Common- wealth of Massachusetts, Essex, to wit: At a court of common pleas, begun and holden at Salem, within and for the court of Essex," suf- ficiently shows the court. Comm. 0. Fisher, (7 G.) 73 492. 23. The venue is properly inserted in the cap- tion, to designate the county where the defend- ant is to be tried, which must be the county where, the offence was committed. If it is there inserted, another insertion in the margin is unnecessary. Comm. 0. Quin, (5 G.) 71 478. 24. Where the offence is committed within 100 rods of the dividing line between two coun- ties,, it may be charged to have been committed in either county. Comm, 0. Gillon, (2 A,) 84 502. See, also, Homicide, II, (3). 25. An indictment, describing the grand lo present it, simply as "jurors," is jurors who not objectionable for that reason. Comm. «. Edwards, (4 G.) 70 1. INDICTMENT, ETC., II, (1), (2), (3), (4); III, (1). ?13 26 So where it is stated to have been found raon their " oaths," instead of their " oath." UP Comm. Wholes, (13 A.) 95 554. 27 So where it is stated to have been found upon their "oath and affirmation," giving no reason why some affirmed. Comm. v. Fisher, (7 G.) 73 492. (2.) Mutilation? erasures; Interlinea- tions. 28. Where, upon a motion for sentence, and a counter-motion in arrest of judgment, on the ground that, since the trial, the indictment had been so mutilated, that sentence could not be pronounoed thereupon; it appeared, on inspec- tion, that the word " Commonwealth " and the name of the county had been torn out of the caption, the attorney for the government was allowed to show, that the indictment was whole when delivered to the jury, and was relumed by them in its present condition; and it appear- ing that, by uniting the torn off portions of the paper, the indictment could be restored substan- tially to its original condition, the motion in arrest was properly denied. Comm. ■». Roland, 97 598. 29. Erasures and interlineations in an indict- ment, and the use of the abbreviation " sd" for " said," afford no ground for arresting judg- ment; but aemble, that they would afford a proper ground for quashing the indictment, upon a motion before trial. Comm, v. Fagan, (15 G.) 81 194; Comm. v. Desmarteau, (16 G.) 82 1. 30. It is for the court to determine, whether an erasure, appearing in the indictment, was made before or after it was found, and the submis- sion of that question to the jury is erroneous. Comm. v. Davis, (11 G.) 77 4. i (3.) Conclusion. [See G. 6., Ch. 173, 5 19; P. S., Ch. 213, i 16.] 31. It is not necessary that an indictment, al- leging matters which constitute a common nui- sance, should conclude ad commune nocumen- wm, although it is usual so to do. Comm. v. Reynolds, (14 G.) 80 87. See, also, Comm. ». Boon, (2 G.) 68 74- Comm. ■«. Haynes, (2 G.) 68 72; Comm.' «. Howe, (13 G.) 79 26. 32. An indictment for obstructing and hin- dering public justice is within that rule. Comm, v, Reynolds, (14 G.) 80 87. 83. Or for lewdness, indecency, drunkenness, or the like. Comm. v. Haynes, (2 G.) 68 72; Wmm. v. Parker, (4 A.) . 86 313. 34, But where the act is not necessarily a S nce ' U must be averred to have been ad . Logan, (12 G.) 78 136; Com i. v. "Welsh, (1 A.) 83 1; Comm. n. Gallagher, (1 A.) 83 592; Comm. v. Bennett, 108 27; Comm. v. Crowthci, 117 116. 69. The venue may be referred to for the pur- pose of designating ihe county. Comm. v. James, (1 P.) 18 375. 70. If the town and county are stated, it is not necessary to allege affirmatively that the place was within the Commonwealth. Comm. v. Shaw, (7 Met.) 48 52. 71. For other rulings, upon formal objections to the sufficiency of allegations as to place, see Wells v. Qomm., (12 G.) 78 326; Comm. «. Concannon, (5 A.) 87 502; Jeffries?;. Comm., (12 A.) 94 145. 72. Misspelling the name of the town does not vitiate, if it is idem sonans. Comm. v. Desmarteau, (16 G.) 82 1. 73. Where a fact is alleged in an indictment, with time and place, the words "then and there," subsequently used in stating the occur- rence of another fact, refer to the same time and place. Comm. v. Butterick, lOO 12. See, also, Comm. v. McKenney, (14 G.) 80 1. 74. But after the time and place have been stated with sufficient precision and distinctness, the omission of the words " then and there," in the subsequent allegations of the indictment, does not vitiate it, even in a capital cause. Comm. b. Barker, (12 C.) 66 186; Comm. v. Bugbee, (4 G.) 70 206; Comm. v. Sullivan, (6 G.) 72 477; Comm. v. Langley, (14 G.) 80 21. See, also, Turns v. Comm., (6 Met.) 47 224; Comm. v. Doherty, (10 C.) 64 52. 75. And in an indictment for a continuing ottence, the insertion of the allegation of place, between the day first named and the time limited in the amtinuando, does not require the repetition of the words "then and there." Comm. e . Keyon, (1 A.) 83 6. (2.) Person injured; property owner; «t other person mentioned. *ex*tfy?%S VIL As t0 the def endaHt 's name - 76. In an indictment for an offence against ™ person or property of another, the name ™« surname of the person injured, or to whom Xtof ?* 6 ^ belon ged, must be accurately >"eu, if k nowil to the grand jury; if not known, he may be described as a person to- them unknown. Comm. v. Morse, 14 217; Comm. •». Manley, (12 P.) 29 173; Comm. v. Mahar, (16 P.) 33 120; Comm. v. Clif- ford, (8 C.) 62 215; Comm. ■». Perris, 108 1. 77. The statement in the indictment, that he was unknown to the grand jury, is prima facie evidence of the fact; but if a question arises thereupon, the burden of proof is upon the Commomwealth, and if it appears that he was known, the defendant must be acquitted. Comm. v. Blood, (4 G.) 70 31; Comm. v. Glover, 111 395. 78. But such a statement is not contradicted by proof that the grand jury might, with reasonable diligence, have ascertained his name. Comm. ». Stoddard, (9 A.) 91 280. 79. The rule is the same as to every person other than the defendant, necessarily named in the indictment, as where the indictment is against an accessory, and the principal is un- known. Comm. v. Glover, 111 395. 80. Or where it is for letting a house for a bawdy house. Comm. v. Moore, (11 C.) 65 600. 81. Or for disinterring a dead body. Comm. «. Cooley, (10 P.) 27 37. 82. Or unlawfully selling intoxicating liquors. Comm. v. Thurlow, (24 P.) 41 374; Comm. v. Hendrie, (2 G.) 68 503; Comm. d. Thornton, (14 G) 80 41. 83. But if the name is immaterial and may be rejected as surplusage, a misnomer or omission of the name is immaterial. Comm. v. Hunt, (4 P.) 21 552; Comm. ■». Codley, (10 P.) 27 37; Comm. v. Kandall, (4 G.) 70 36. 84. As upon an indictment for receiving- stolen goods. Comm. v. King, <9 C.) 63 284; Comm. v. Slate, (11 G.) 77 60; Comm. «. Hogan, 121 373. 85. The name and surname are sufficient* without any addition. Comm. v. Varney, (10 C.) 64 402. 86. Where the name of the person injured, or of the owner of the property, is material, and. the proof shows that' he is another person, the defendant must be acquitted. Comm. v. Wade, (17 P.) 34 395. 87. So where,, although it was not necessary to give the name, a wrong name is in fact given. Comm. v. Wade, (17 P.) 34 395 88. In an indictment for destroying, etc., a. will or other testamentary paper, no averment of ownership or value is necessary. G. S., Ch. 161, § 20; P. S., Ch. 203, § 22. 89. Where money or other property, held by a married woman, is deemed in law her hus- band's property, ft must formerly have been averred to have been his, otherwise the variance was fatal. Comm. v. Manley, (12 P.) 29 173; Comm. v. Davis, (9 C.) 63 283. 716 INDICTMENT, ETC., in, (2), (3). 90. But under G. S.. Ch. 173, § 12; P. S., Ch. 214, § 14, it may now be averred to be the property of either. Coram, v. McLaughlin, 103 435. See, also, Comm. v. Williams, (7 G.) 73 337. 91. In an indictment for murder, the person murdered may be described by the name by •which he is commonly called, although it differs from his name of baptism. Comm. v. Desmarteau, (16 G.) 82 1. 92. So as to the person to whom liquor is charged to have been unlawfully sold. Comm. ■». Trainor, 123 414. 93. Upon an indictment for obstructing an ■engine on the road of the Boston and Worces- ter Railroad Company, the variance is fatal, where the true name is The Boston and Worces- ter Railroad Corporation. Comm. v. Pope, (12 C.) 66 272. 94. An indictment for selling intoxicating liquors "to a certain person whose name is Juary Garland " fails, if she has, since the sale, acquired a new surname by marriage. Comm. ■». Brown, (2 G.) 68 358. 95. An indictment for extortion is sustained by proof, that the illegal fees were paid by -another, as the agent of the person named in the indicim.nt as having paid them. Comm. ■». Bagley, (7 P.) 24 279 96. Where a purchase is made by A, as agent for B, and the seller has not express or implied notice of the agency, a complaint or indictment may allege a sale to A. Comm. v. Kimball, (7 Met.) 48 308; Comm. v. McGuire, (11 G.) 77 460; Comm. v. Very, (12 G.) 78 124; Comm, v. Farren, (9 A.) 91 489. 97. But if the agent discloses his agency, an averment of a, sale to him is not sustained. Comm. v. Remby, (2 G.) 68 508. 98. An indictment for larceny of property pledged, and in the pledgee's possession, may describe it as the pledgor's property. Comm. v. O'Hara, (10 G.) 76 469. See, also, Comm. v. Morse, 14 217. 99. Under G. S., Ch. 172, § 12; P. S., 214, § 14, an indictment for receiving stolen goods may lay the goods as the property of the person from whom they were stolen, although he stole them. Comm. v. Finn, 108 466. 100. Or of a consignee to whom they were in course of transportation by a carrier, whether the carrier was designated by him or not. Comm, s Sullivan, 104 552. 101. Or of the cashier of a bank, where they were bank bills which he was carrying to the bank. Comm. ». Butts, 124 449. 102. Or of a widow, who held them as unad- ministered property of her husband. Comm. ». McGorty, 114 299. i03. Under that statute, where an infant de- livered to another bounty money, received upon his enlistment, to be carried to his father, an indictment for embezzlement may allege the ownership to be in the father Comm. «. Norton, (11 A.) 93 110. 104. So where B holds a check, payable to A's order, for transmission to A, an indictment for larceny of the check may lay the property in A. Comm. ■». Lawless, 103 425, 105. So where money or goods belong to two or more, as joint owners, or owners in common, an indictment for larceny thereof, may lay the ownership either in the one who had possession at the time, or in all the owners. Comm. v. Maguire, 108 469. See, also, Comm. v. Arrance, (5 A.) 87 517; Comm. v. O'Brien, (12 A.) 94 183. 106. So an indictment for burning, or break- ing and entering, a house, belonging to or leased by two or more, may allege the ownership to be in either or in all. Comm. v. Golstein, 1 14 272; Comm. v. Thompson, (9 G.) 75 108. 107. An averment that one stole or embezzled the goods, or broke into the house, "of" A, is a sufficient averment of ownership in A. Comm. v. Bennett, 1 18 443. See, also, Comm. v. Williams, (2 C.) 56 582. 108. And where the description is a bank bill " of the goods and chattels of A," the words, "of the goods and chattels," may be rejected as surplusage. Eastman v. Comm., (4 G.) 70 416. See, however, Comm. ». Williams, (2 C.) 56 582. 109. And " belonging to," avers ownership. Comm. v. Hamilton, (15 G.) 81 480. (3.) Property taken, Injured] destroyed! or unlawfully used; value thereof, [See, also, vost, IV, (3); and VII. 110. An indictment for larceny of "one promissory note of the value of $300, and one piece of paper of the value of $300," sufficiently describes the property; the promissory note and the piece of paper having been admitted, upon the trial, to be the same. Comm. v. Brettun, lOO 206. 111. So an indictment for larceny of so many yards of cloth suffices; and it is supported by proof that they were like pieces of any kind of cloth not manufactured into a different shape. Comm. ■». Campbell, 103 436. 112. So of an indictment for stealing " a bank note of the value of ten dollars." Comm. v. Richards, 1 337; Larned v. Comm. (12 Met.) 53 240. 113. And a bank note may be described as a " bank bill," or a " promissory note." Comm. v. Carey, (2 P.) 19 47; East- man v. Comm., (4 G.) 70 416; Comm. v. Stebbins, (8 G.) 74 492; Comm. «. Woods, (10 G.) 76 477; Comm. ■». Sl- monds, (14 G ) 80 ,59, Comm. v. Butts, 124 449; Comm. v. Ashton, 125 384; Comm. v. Gallagher, 126 54; Comm. v. Collins, 138 483; Comm. v. Jenks, 138 484. 114. As to a check, see Fitzgerald i». Comm., 135 266. INDICTMENT, ETC, III, (3). wr 115 A treasury note, stolen, is sufficiently described as "a promissory note, then and there of the currency current in said Common- Weidth fcomm. v. Griffiths, 126 252. 116 As to the sufficiency of the description of notes and mortgages embezzled, see Comm. ■!>. Concannon, (5 A.) 87 502; Comm. «. Pratt, 137 98. 117. An indictment or a complaint, for un- lawful manufacture or sale of intoxicating liquors, or for keeping a tenement for the un- lawful keeping and sale of intoxicating liquors, and not specify the kind or quantity of the liquors. Comm. e. Odlin, (23 P.) 40 275; Comm. i). Wilcox, (1 C.) 55 503; Comm. ». Conant, (6 G.) 72 482; Comm. v. Ryan, (9 G.) 75 137; Comm. «. Clark, (14 Q.) 80 367; Comm. ». Bennett, 108 27; Comm. v. Conneally, 108 480. 118. An indictment for adulterating " a cer- tain substance intended for food, to wit, one pound of confectionery," is too indefinite, and will be quashed upon seasonable application. Comm. 8. (Jhase, 125 202. 119. The word "baretta,'' being found in certain English dictionaries and cyclopedias, and in the act of congress relating to the reve- nue, is a sufficient description of property in an indictment. Comm. v. James, (1 P.) 18 375. 120. The omission in the description of a note, upon which the defendant is charged with obtaining money upon false pretences, of the words, written in the margin. "This note is secured by real estate mortgage," is not a fatal variance. Comm. v. Parmenter, 121 354. 121. An indictment, charging larceny of a certain number of bottles of whiskey, is not sus- tained by proof that the defendant drew the whiskey from casks into his own bottles. Comm. v. Gavin, 121 54. 122. An indictment, for embezzling printed sheets of a certain work, is not sustained by proof that they were delivered by the owner to the prisoner to be bound, and that he embezzled them after he had bound them into books. Comm. «, Merrifield, (4 Met.) 45 468. 123. Judgment will not be arrested for an insufficient description of some articles, if others are sufficiently described. Comm. v. Eastman, (2 G.) 68 76. And see Comm. o. Pratt, 137 98. 124. An indictment for larceny must state separately the value of each article; but if they are different articles of the same kind, their collective value only, or the collective values of the different articles of the same kind, may be stated. J Comm. v. Smith, 1 245; Comm. v. Falvey, 108 304. See, also, Hope v. Comm., ( 9 Met.) 50 134; Comm. v. Uhill,(l2A.) 94 540; Comm. v. Strang- ford, 112 289. s,,ffi 5 -' Al ? indict ment for larceny of coin is sumcient if it describes the metal and the aggre- gate value; and a description as gold and silver coin of an aggregate va.ue, suffices, without giving the separate value of each kind. Larned «. Comm., (12 Met.) 53 240; Comm. ». Williams, ( 2 C.) 56 582; Comm. v. Sawtelle, (11 C.) 65 142; . Comm. ■». Duffy, (11 C.) 65 145; Comm. O'Connell, (12 A.) 94 451. See, also, Comm. v. Gallagher, (16 G.) 82 240; Comm. v. Collins, 138 483. 126. If the larceny is of foreign coin, its value as legal tender must be stated. Comm. v. Smith, 1 245. 127. An indictment for stealing bank bills, which states the aggregate amount and value, need not describe their number or denomina- tions, or the banks which issued them. Comm. ». Stebbins, (8 G.) 74 492; Comm. •». Grimes, (10 G.) 76 470. 128. So as to embezzling United States bonds. Comm. v. Butterick, 100 1. 129. And an indictment for embezzling "cer- tainmoney, to the amount and valueof $25,000," suffices, under G. S., Ch. 161, § 42; P. S., Ch. 203, § 44. Comm. v. Bennett, 118 443. 130. An indictment for burning a building need not aver the value, as the punishment does not depend upon the value. Comm. id. Hamilton, (15 G.) 81 480. 131. Upon an indictment for larceny, robbery, or embezzlement, it is immaterial, if the value of the property taken is shown to be greater or less than as alleged in the indictment. Comm. ii. O'Connell, (12 A.) 94 451; Comm. v. Hussey, 111 432; Comm. v. Green, 122 333; Comm. v. Gallagher, 126 54. 132. Or that the grand jury knew the fact, and knew the denominations of bank bills stolen or embezzled, and charged as unknown to them. Comm. v. Hussey, 111 432; Comm. ■o. Green, 122 333. 133. See, however, upon this point, Comm. v. Gallagher, 126 54. 134. Judgment will not be arrested upon an indictment for larceny of "sundry bank bills of the aggregate value of $367," upon a verdict of "guilty of stealing sundry bank bills of the value of $317," and not guilty as to the residue. Comm. v. Duffy, (11 C.) 65 145; Comm. v. O'Connell, (12 A.) 94 451. 135. An indictment for stealing an animal, which does not state whether it was alive or dead, is not supported by proof that it was dead when stolen, even if it has the same appel- lation when dead as when alive. Comm. v. Beaman, (8 G.) 74 497. 136 Thus an indictment for stealing " one pea hen" and "one turkey," is not supported by proof of stealing them alive in another state, and bringing them here dead. Comm. «. Beaman, (8 G.) 74 497. 137. Wherever, in charging an offence, it is. necessary to describe a house or land, the pre- mises must be set out m terms sufficiently certain to identify them. Comm. v. Brown, (15 G.) 81 189. 718' INDICTMENT, ETC., Ill, (3), (4). 138. Thus on an indictment for forcible entry or detainer, a charge that the defendant entered two closes of meadow or pasture, a house, or a rood of land, is bad; for the same certainty is required as in a declaration in ejectment Comm. v. Brown, (15 G.) 81 189. 139. And in an indictment for fraudulently conveying real property, without giving notice of an incumbrance, the description as " a certain parcel of real estate, situate in B., in the county of E." is insufficient. Comm. v. Brown, (15 G.) 81 189. 140. An indictment for breaking and enter- ing " a certain building, to wit, the office build- ing of the B. and A. Railroad Company," is sustained by proof that the building was used for the general office of the company, although other buildings in the same city were used for its subordinate offices. Comm. v. Moriarty, 135 540. 141. In an indictment for breaking and enter- ing a building, and stealing therein, the amount or value of the goods stolen is immaterial, and proof of stealing any the goods properly charged in the indictment suffices. Comm. v. "Williams, (2 C.) 56 582. 142. And in such an indictment, if the charge of larceny is insufficient to sustain an indict- ment for that offence, a judgment rendered upon a general verdict of guilty is nevertheless good. Lamed v. Comm., (12 Met.) 53 240. (4.) The criminal act. [See, also, post, VII.] 143. The ancient rule of the common law is, that no one shall be held to answer to an in- dictment or information, unless the crime with which he is charged is set forth with precision and fullness; and the constitutional and statu- tory provisions upon this subject are but a declaration and affirmation of this rule, and were not intended to change it. Comm. v. Davis, (11 P.) 28 432; Comm. v. Blood, (4 G.) 70 31. See, also, Comm. v. Harley, (7 Met.) 48 506. 144. If any fact or circumstance, which is a necessary ingredient in an offence, is omitted, the indictment is vitiated by the omission, and the objection may be taken by the defend- ant upon a motion in arrest of judgment. Comm. n. Moore, (11 C.) 65 600. See, also, Comm. n. Bartley, 138 181; Comm. v. Intox. Liq., 138 506. 145. The precision and certainty required in criminal pleadings will, for the security of the accused, not permit anything to be taken by intendment. Moore n. Comm., (6 Met.) 47 243. 146. The object of the rule, requiring a criminal charge to be particularly, 'certainly, and technically set forth, is: (1) To apprise the defendant of the precise nature of the charge against him; (2) To enable the court to deter- mine whether the facts constitute an offence, and to render the proper judgment thereon; (3) That the judgment may be a bar to any future prosecution for the same offence. Comm. v. Pray, (13 P.) 30 359. See. also, Comm. v. Maxwell, (2 P.) 19 139- 147. The allegations of fact must be made positively, and not left to be collected by argu- ment and inference only.. Comm. «. Maxwell, (2 P.) 19 139; Comm. n. Newburyport Bridge, (9 P.) 26 142; Comm. ■». Shaw, (7 Met.) 48 52; Comm. 'v. Whitney, (5 G.) 7 1 85. I As to the use of the present participle, see pott, arts. 163, 163.] 148. But an indictment for murder, which, after sufficiently describing the act, introduces the legal conclusion by the words, "And so the jurors say," is not bad for argumentativeness. CQmm. v. Desmarteau, (16 G.) 82 1. 149. Gramatical and critical objections, such as bad Latin or bad English, cannot prevail against an indictment; and, although a passage maybe somewhat obscure, the indictment will be Sustained, if by reference to the context, it is capable of certain interpretation. A relative will be referred to that antecedent, to which the tenoi of the instrument and the principles of law require that it should relate, whether exactly according to the rules of syntax or not. Comm. v. Call, (21 P.) 38 515. See, also, Turns v. Comm., (6 Met.) 47 234; Comm. v. Tower, (8 Met.) 49 527; Comm. v. Stowell, (9 Met.) 50 569. 150. An indictment for a rape need not allege the female's age. Comm. v. Sugland, (4 G.) 70 7. 151. But an indictment for abuse of a female child must state her age, although it is suf- ficient if she described as "A, a female child under the age of ten years, to wit, of the age of eight years." Comm, v. Sullivan, (6 G.) 72 477. 152. An indictment for rape upon a woman of a different name from the defendant's, need not allege that the woman was not the defend- ant's wife. Comm. ■». Scannel, (11 C.) 65 547; Comm. v. Eogerty, (8 G.) 74 489. 153. But an indictment for adultery, which does not show with certainty, either expressly or by necessary implication, that the parties to the offence were not married, is bad. Comm. v. Beardon, (6 C.) 60 78. See, also, Moore v. Coram., (6 Met.) 47 243. 154. An indictment for unlawfully selling liquor does not require the terms and conditions of the sale, or the price paid, to be stated. Comm. d. Thayer, (8 Met.) 49 525. See, also, Comm. v. Kimball, (7 Met.) 48 304. 155. An indictment for obtaining money, etc., by false pretences by a sale or exchange qf property, must affirmatively set forth the sale or exchange, and must allege that the false pretences were made with a view to effect it, j and that by reason thereof the party was in- duced to buy or exchange. Comm. «. Strain, (10 Met.) 51 See, also, Comm. v. Call, (21 P.) 515; Comm. v. Nason, (9 G.) 75 Comm. v. Lannan, (1 A.) 83 Co am. v. Goddard, (4 A.) 86 Comm. n. Lincoln, (11 A.) 93 ! 531. 38 125; 590; 313; INDICTMENT, ETC., Ill, (4). 719 156. An indictment for murder may charge the principal in the second degree as principal jn tie first degree; for evidence that he was aiding and abetting, will maintain an indictr ment charging him with having committed the act with his own hands. Comm. 1>. Chapman, (11 C.) 65 422, 157. And, upon an indictment for a misde- meanor, an allegation that the defendant did an act, is sustained by proof that he did it by another. Comm. v. Park, (1 G.) 67 553. See, also, Comm. i>. Nichols, (lOMet.) 51 259. 158. An indictment for murder or man- slaughter, which alleges that the death was caused by a blow from an axe, a whip stock, or other instrument which inflicts a contused wound, is sufficient, without giving the dimen- sions of the wound. Comm. v. Chapman, (11 C.) 65 422; Comm. -a. Woodward, 102 155. 159. But, semile, that in the case of an incised wound, a particular description is necessary. Comm. «. Chapman, (11 C.) 65 422. 160. An indictment for murder or man- slaughter, alleging that the crime was com- mitted "in some way and manner, and by some means and weapons, to the jurors unknown," is sufficient, if the circumstances of the case will not admit of greater certainty in stating the means of death. Comm. v. Webster, (5 C.) 59 295; Comm. v. Martin, 125 394. 161. An indictment for murder, by shooting with a pistol, need not aver that the pistol was held in the defendant's hand. Comm. v. Costley, 118 1. 162. The present participle may be used as an express averment, thus, "giving a mortal wound." Turns v. Comm., (6 Met.) 47 224. 163. So in an indictment against an inn- holder, it is sufficient to say that "being an lnnholder," he did the unlawful act. Comm. v. Arnold, (4 P.) 21 251. 164. It is not, however, sufficient to say that he was licensed as an innholder; it must be averred that he exercised that employment. Comm. ». Bolkom, (3 P.) 20 281. 165. An indictment against an innholder, under a statute which fixes a penalty for every person entertained by him on the Lord's day, must specify the number entertained, that the number of penalties may be determined. Comm. v. Maxwell, (2 P.) 19 139. 166. An indictment for letting a tenement ior prostitution must set forth the lessee's name, unless it alleges that the name was unknown ZnZ :l ?i ors i. and must state that the lease was ai.ceptea by him. Comm. b. Mooro, (11 C.) 65 600. ini 6 J'^ An i nd , iotnient against a town for suffer- thftJ? 7 - -°^ e out of re P air > need not state uwfT ?. f the wa ^ if the latte r is sufficiently Si ; bu i UDless the indictment affirmi- wrL ? »° W i that the defective part of the way 88 ™™ th -e town, it is bad for uncertainty. U>mm. v. Newbury, (2 P.) 19 51- wmmi. v. North Brookfleld, (8 P.) -25 i 168. A general allegation that the highway- was out of repair,, ruinous, and unsafe, suffices. Comm. v. Pray, (13>P.) 30 359. 169. So a general allegation,' tliat a road is a public road and a common highway, is sufficient in an indictment or complaint for a nuisance by an obstruction, or for violating the law of the road. Comm. ■». Hall, 15 240; Comm. v. Allen, (11 Met.) 52 403; Snow v. Adams, (1 C.) 55 443. 170. But an indictment for erecting sheds in the highway must specify the number of sheds. Comm. ■». Hall, 15 240. 171. Where an offence, from the nature of the case, consists in a series of acts, so that the exist- ence of such a series of acts, is an essential ele- ment thereof, the charge may be general; as a charge of keeping a gaming house, a disorderly house, or a house of ill fame. Comm. v Pray, (13 P.) 30 359; Strat- ton v. Comm., (10 Met.) 51 217. 172. Thus one may be indicted as a common barrator, a common seller of liquor without a license, a common scold, a common railer and brawler, and the like, without detailing the par- ticulars. Comm. v. Davis, (11 P.) 28 432; Comm. v. Pray, (i3 P.) 30 359; Comm. v. Odlin, (23 P.) 40 275; Comm. v. Hart, (11 C.) 65 130; Comm. v. Edwards, (4 a.) 70 i. 173. An indictment for keeping a gaming house need not specify the kind of gaming. Comm. v. Edds, (14 G.) 80 406. 174. The exact words used must be set out, where the words are the gist of the crime, as libellous, seditious, or blasphemous words, or the like. Comm. i). Moulton, 108 307; Comm. ■». Goodwin, 122 19. 175. But when the words are not the gist, it is sufficient to set out the substance of them, as where the indictment is for a threat to accuse one of a crime, and in such it is not necessary to set forth the crime with technical particu- larity. Comm. v. Murphy, (12 A,) 94 449; Comm. i>. Moulton, 108 307; Comm. «. Doras, 108 488; Comm. ■». Goodwin, 122 19. 176. Where a statute imposes a greater pen- alty for a second or subsequent conviction, the prior conviction must be charged and proved. Tuttle v. Comm., (2 G.) 68 505, Gar- vey v. Comm. (8 G.) 74 382. 177. A statute, allowing a brief statement of such a prior conviction, without setting out the record, is constitutional. Comm. ». Holley, (3 G.) 69 458. 178. It is no objection to an indictment, that the facts, proved upon the trial, tend_ to show that the accused was guilty of a crime of a higher degree, than the one charged therein. Comm. v. Walker, 108 309; Comm. •B.Adams, 127 15; Comm. v. Andrews, 132 263; qualifying Comm. v. Kings- bury, 5 106. 79. Or other different crimes. Comm. ■». Corkin, 136 429. See, 720 INDICTMENT, ETC., Ill, (5), (6). also, Comm. v. Tuckerman, (10 G.) 76 173; Comm. v. Choate, 105 451; Coram. v. McCarthy, 119 354; Comm. v. Brad- ford, 126 42; Comm. v. Jackson, 132 16. (5.) Knowledge; Intent. [See, also, post, VII; Evidence, IX, (4); Malum ih SE.] 180. It is necessary to aver a guilty knowl- edge, on the part of the defendant, wherever the criminal character of his act depends upon his guilty knowledge, as where the charge is that the defendant sold unwholesome pro- visions. Comm. v. Boynton, (12 C.) 66 499. 181. But where such knowledge is not an ingredient of the crime, it is unnecessary to aver it; thus, upon an indictment for keeping intoxicating liquor, it is not necessary to aver that the defendant knew it to be intoxicating. Comm. ». Boynton, (2 A.) 84 160; Comm. v. Goodman, 97 117; Comm. v. Hallett, 103 452. 182. So upon an indictment for selling naphtha under a different name. Comm. ■». Wentworth, 118 441, 183. So for administering a poison to a preg- nant woman. Comm. v. Bearse, 108 487. [See further as to poison, post, VIII, (67) .7 184. So for killing a calf less than four weeks old, for sale. Comm. ». Raymond, 97 567. 185. So for allowing an infant to play bil- liards. Comm. v. Emmons, 98 6. 186. So for refusing to answer a tything man. Comm. «. Caldwell, 14 330. 187. So for adultery with a married woman. Comm. v. Elwell, (2 Met.) 43 190. 188. Thus, under St. 1856, Ch. 222, an in- dictment for selling adulterated milk must have alleged knowledge that it was adulterated; but under St. 1864, Ch. 122, such an allegation was not necessary. Comm. v. Flannelly, (15 G.) 81 195; Comm. v. Farren, (9 A.) 91 489. 189. Where an allegation of knowledge is unnecessarily inserted in an indictment, it may be rejected as surplusage. Comm. v. Squire, (1 Met.) 42 258; Comm. v. Farren, (9 A.) 91 489. 190. Where knowledge must be averred, an indictment is good, although only the words ' 'de- signedly and unlawfully" are used, as they import knowledge. Comm. «. Hulbert, (12 Met.) 53 446; Comm. v. Kirby, (2 C.) 56 577. 191. Neither knowledge nor guilty intent need be averred, in an indictment for obstruct- ing a highway with railroad cars. Comm. v. New York, etc., Kailroad, 112 412. 192. To render one responsible for a felony, a wicked intent must concur with a wrongful act; but as the law presumes that every man intends the natural and necessary consequences of his own acts, it is sufficient to aver, in apt and technical words, that a defendant commit- ted the crime, without alleging the intent with which it was done. Comm. v Hersey, (2 A.) 84 173. See, also, Comm. v. Hope, (22 P.) 39 1. 193. But where, at common law or by Stat ute, a particular intention is essential to an offence, or a criminal act is attempted but not accomplished, so that the evil intent only can be punished, it is necessary to allege the intent with distinctness and precision, and support the allegation by proof. Comm. v, Hersey, (2 A.) 84 173. See, also, Comm. v. Slack, (19 P.) 36 304; Comm. ». Shaw, (7 Met.) 48 52. 194. Thus in an indictment for giving false answers to selectmen presiding at an election, with the fraudulent intent to procure the de- fendant's name to be placed upon the list of voters, the allegation of intent is essential, and there is a fatal variance if it appears, that the defendant's name was already in the list. Comm, ». Shaw, (7 Met.) 48 52. 195. Where the allegation of intent is neces- sary, it must extend to every material part of the description of the offence. Comm. «. Slack, (19 P.) 36 304; Comm. ■». Boynton, (12 C.) 66 499. 196. By statute, R. S., Ch. 127, 8 14; G. S., Ch. 162, § 13; P. S., Ch. 204, § 13, where an intent to defraud is required to constitute an offence, it suffices to allege such intent, with- out specifying the person to be defrauded. Comm. ■». Hulbert, (12 Met.) 53 446; Comm. v. Butterick, lOO 12. 197. At common law, in an indictment for conspiracy to defraud, it sufficed to charge an intent to defraud the public generally. , Comm. i). Judd, 2 329. i 198. But if the indictment charged an intent to defraud a particular person, the intent must have been proved as laid; and the statute does not change this rule. Comm. v. Harley, (7 Met.) 48 506. 199. An allegation in an indictment against an accessory before the fact to a felony, that he "feloniously and maliciously" procured the principal to commit it, imports an unlawful in- tent. Comm. ■». Adams, 127 15. 200. An indictment for indecent exposure, which alleges that the defendant, "devising and intending the morals of the people to debauch and corrupt," "unlawfully, scandalously, and wantonly did expose," etc., sufficiently charges the intent. Comm. «. Haynes, (2 G.) 68 72 (6.) Technical characterization of the crime. [See, also, post, TV, (4); and VH..1 201. Before St. 1852, Ch. 37, § 3; G. S., Ch. 168, § 2; P. S., Ch. 210, § 2, the word "feloni- INDICTMENT, ETC., HI, (6); IV, (1). 721 ously"was necessary to give character in an indictment for a felony. m Comm. v. Squire, (1 Met.) 42 358; Comm. e. Penniman, (8 Met.) 49 519. 203 Since that statute, it is unnecessary to aver that any act was committed ''feloniously." Comm. i>. Scannel, (11 C.) 65 547; Comm. v. Jackson, (15 G.) 81 187. 202. If the word "feloniously" is used, where the acts alleged do not amount to a felony, it may be rejected as surplusage. Comm'. v. Squire, (1 Met.) 42 258; Comm. v. Philpot, 130 59. 204. An indictment against the receiver of stolen goods, which alleges that they were "feloniously stolen," and that he received them, " knowing them to have been feloniously stolen," is sufficient, without adding the words, "taken and carried away." Comm. v. Lakeman, (5 G.) 7 1 82. 205. But the words, "taken and carried away," cannot be dispensed with in an indict- ment for larceny. Comm. v. Adams, (7 G.) 73 43. 206. And if the principal and an accessory are indicted together, and the charge against the principal is that the goods were " taken and carried," neither can be convicted, although the accessory is properly charged. Comm. v. Adams, (7 G.) 73 43. 207. As to an indictment against a receiver, under St. 1784, Ch. 60, § 9, see Comm. v. Andrews, 3 126. 203. In an indictment upon a statute against breaking and entering a building, with intent to commit larceny, it suffices to allege that the intent was "the goods of F, then and there being found, feloniously to steal, take, and carry away." Josslyn o. Comm., (6 Met.) 47 236. 209. An indictment under the statute, for breaking and entering a dwelling house in the night time, with intent to commit a felony, need not use the word " burglariously." Tullya. Comm., (4 Met.) 45 357. 210. Under the rule of law in this Common- wealth, it is not necessary that an indictment for murder should allege that the assault was made, "wilfully and with malice aforethought." Comm. v. Chapman, (11 C.) 65 422. See, further, as to an indictment for mur- der, Comm. v. Webster, (5 C.) 59 295. 211. The words, "with force and arms," are no longer necessary. E. S., Ch. 137, § 14; G. 8., Ch. 172, § 19; P. S., Ch. 213, § 16. Comm. o. Scannel, (11 C.) 65 547. 212. See, before the statute, Comm. v. Gowen, 7 378; Comm. v. Runnels, 10 518. 213. In an indictment for a forcible entry, w j* ' ,wittl a stron S hand »" Hpty toe offen V10len ai necessary to constitute the Comm. v. Shattuck, (4 C ) 58 141. 214. SenOk, that in an indictment for a riot, waere no unlawful act was committed, except 8° m g about armed, etc., the words in terrorem Vol, 1-91 , ,--..«* are necessary; but not where an addi- tional unlawful act is committed. Comm. v. Runnels, 10 518. 215. In an indictment for barratry, the words, " common barrator," are necessary as a term of art, appropriated by the law to this purpose. Per Shaw, C. J., in Comm. v. Davis, (11 P.) 28 432. 216. A party is well charged, in the general words of the statute, as " a common drunkard." Comm. v. Boon, (2 G.) 68 74, IV. Otheb. 'Rules of Pleading. [As to misnomer of the defendant, see post, IV, (6).] (1.) Joinder of offences; two or more counts; duplicity. [See, also, post, VII.l 217. St. 1861, Ch. 181; P. S., Ch. 213, § 18, was designed to enable the pleader to join several counts, containing different offences, which could not be joined at common law; not to restrict his right to set out the same offence by different descriptions in different counts. Comm. v. Adams, 127 15; Comm. v. Andrews, 132 263; Comm. «. Ismahl, 134 201. See, also, Comm. v. O'Connell, (12 A.) 94 451; Comm. v. Cain, 102 487. 218. At common law, where the offences charged are of the same nature, they may be properly included in the same indictment. Comm. ». Ismahl, 134 201. See, also, Comm. v. Eaton, (15 P.) 32 273; Carlton v. Comm., (5 Met.) 46 532; Joss- lyn ». Comm., (6 Met,) 47 236; Comm. v. Kimball, (7 G.) 73 328 ; Comm. v, Davenport, (2 A.) 84 299; Comm. v. Costello, 120 358; Comm. v. Brown, 121 69; Comm. ■». Allen, 128 46; Comm. v. Darling, 129 112. 219. Thus a count for maintaining a house of ill fame, under the statute, and a count for maintaining a disorderly house, at common law, may be joined. Comm. -o. Ismahl, 134 201. 220. And the defendant is not entitled to require the government to elect, upon which count it will go to the jury. Comm. v. Ismahl, 134 201. 221. So several assaults upon different persons may be united, by several counts, in one indict- ment. Comm. v. Malone, 1 14 295. 222. So of several offences for feloniously receiving stolen goods. Comm. v. Hills, (10 C.) 64 530. 223. So of several larcenies. Comm. v. Sullivan, 104 552. 224. So of a count for larceny, and a count for receiving stolen goods, Comm. o. O'Connell, (12 A.) 94 451. 722 INDICTMENT, ETC., IV, (1). 225. So of a count for felonious assault, and a count for a common assault. Comm. v. McLaughlin, (12 C.) 66 612. 226. As to intoxicating liquors. Comm. v. Moorhouse, (1 G.) 67 470; Comm. a. Clark, (14 G.) 80 367; Comm. v. Gillon, (2 A.) 84= 505. 227. Upon an indictment for breaking and entering a building, 'with intent to steal, and for stealing therein, the defendant may be con- victed and sentenced for either offence; or, if they are charged in separate counts, and proved to be distinct, for both. Comm. v. Darling, 129 112. See, also, Comm. ». Tuck, (20 P.) 37 356; Crowley®. Comm, (11 Met.) 52 575; Jennings v. Comm., 105 586. 228. Where several offences are joined in the same indictment, the question of separate trials rests entirely in the discretion of the presiding judge, and an exception does not lie to his decision. Comm i). Hills, (10 C.) 64 530; Comm. v. Davenport, (2 A.) 84 299; Comm. n Sullivan, 104 552; Comm. v. Pratt, 137 98. 229. If the government proves only one offence, the jury may apply the evidence to the count to which it is applicable, and convict under that count, and acquit on the others. Comm. v. Edds, (14 G.) 80 406. 230. Two or more charges of distinct offences in one count renders an indictment bad for duplicity Comm. v. Symonds, 2 163. 231. It has been ruled, that an indictment is not open to the objection of duplicity, by reason of joining the following charges in one count: Different charges under the liquor laws. Comm. 1). Thurlow, (24 P.) 41 374; Comm. v. Wilcox, (1 C.) 55 503; Comm. ■». Foss, (14 G.) 80 50. Nuisance, under the statute, for keeping a house of ill fame, and an unlicensed liquor house. Comm. v. Kimball, (7 G.) 73 328; Comm. i>. Ballou, 124 26. Embezzling and stealing. Comm. ■». Simpson, (9 Met.) 50 138. Uttering and passing a counterfeit bank bill. Comm. v. Hall, (4 A.) 86 305. Causing an abortion by drugs, and by instru- ments. Comm. v. Brown, (14 G.) 80 419. An assault upon two persons at the same time. Comm. v. McLaughlin, (12 C.) 66 615; Comm. v. O'Brien, 107 208. An assault with intent to ravish, and a battery. Comm. ■». Thompson, 116 346. Violating a city by-law in two different places, they being one continuous street. Comm. *>. Curtis, (9 A.) 91 266. Setting up and promoting an illegal lottery. Comm «. Twitchell, (4 C.) 58 74; Comm. v. Harris, (13 A.) 95 534. Writing and publishing, and causing to be written and published, a libel. Comm. v. Eaton, (15 P.) 32 878' Comm. o. Twitchell, (4 C.) 58 74. Obtaining goods by false pretences, and thereupon uttering a counterfeit bank bill. Comm. v. Hulbert, (12 Met.) 53 446. Eeceiving, and aiding in the concealment of, stolen goods. Stevens v Comm., (6 Met.) 47 241. Breaking and entering a building, and at- tempting to set fire to it, while in it. Comm. «. Harney, (10 Met.) 51 482. 232. A nol. pros, as to one charge will cure duplicity. Comm. v. Holmes, 119 195. 233. If several counts in an indictment for larceny are intended to charge the larceny, at the same time, of the property of different per- sons, only one count is necessary. Bushman v. Comm., 138 507. See, also, Comm. v. O'Brien, 107 208. 234. But if the indictment contains several counts, each charging the larceny of the prop- erty of a different person on the same day, the court will not assume that all charge the same offence. Bushman v. Comm., 138 507. 235. Where the indictment contains several counts, each charging a distinct larceny of the property of a different person, the plea, convic- tion, and sentence, may be general upon the complaint as a whole, not upon each count sepa- , rately. Comm. v. Holmes, 137 248. 236. Two counts for different offences, pun- ishable in different modes, cannot be joined in one indictment. Comm. v. Symonds, 2 163. 237. A misjoinder of counts is cured by a verdict for the defendant, upon the count im- properly joined. Comm. v. Packard, (5 G.) 71 101; Comm. ii. Holmes, 103 440; Comm. v. Chase, 127 7; Comm. v. Adams, 127 15. 238. So where the evidence is applicable to either count, a conviction may be had upon one, and an acquittal upon the other. Comm.®. McLaughlin, (12 C.) 66 612. See, also, Practice, II, (5). 239. If one count is insufficient and one is good, and no evidence is admitted which was not competent under the latter, and the defend- ant is convicted upon that count, he is not pre- judiced by the refusal of the judge to quash the other count, and the conviction will stand. Comm. v. Andrews, 132 263. 240. When an indictment in one count charged the defendant with forging an instru- ment, and in another count with being an ac- cessory before the fact to the uttering of the same instrument by another, the offences charged in the two counts are not the same; and a verdict of acquittal upon the first, and of conviction on the second, is not repugnant. Pettes t>. Comm., 126 242 241. In an indictment against principal aud accessories, it is proper to set forth the offence of which the principal is guilty; and in such a case, an acquittal of the principal upon the INDICTMENT, ETC., IV, (1), (2), (3). 723 counts relating to the accessories and his con- viction upon those charging the principal off %ger1udt. Comm., 135 266. See, also Comm. v. Glover, 111 395; Comm. «. Cohen, 120 198. 243 Where the indictment alleges that two or more different counts are different descrip- tions of the same act, the evidence may be sub- mitted to the jury, with instructions to return a general verdict of guilty, if either count is sus- ♦cjnftd. Comm. v. Fitchburg Railroad, 120 372; Comm. ». Nichols, 134 531; Comm. ». Flagg, 135 545. 243. But such a course is erroneous, if one count is bad, and the evidence applicable to it is submitted to the jury with the rest, against the defendant's objection. §«., whether this qualification applies, if the indictment alleges that all the counts are different descriptions of the same act. Comm. v. Boston & M. R. R., 133 383. See, also, Comm. ■». Desmarteau, (16 G.) 82 1. (2.) Joinder of defendants. [See, also, post, VII.] 244. All who commit a misdemeanor are principals, and may be indicted as such. Comm.!). Drew, (3 C.) 57 279; Comm. b. Bay, (3 G.) 69 441; Comm. ■». Gan- nett, (1 A.) 83 7. 245. All who are present, aiding and abetting the commission of a felony, are principals, and a presence at the actual scene of the crime is not requisite, if one .was aiding the act in another place, as by watching, or the like. Comm. v. Lucas, (2 A.) 84 170; Coram, v. Roberts, 108 296. [See, also, Accessory; Homicide, II, (1).] 246. In every indictment against two or more, except for conspiracy, riot, or the like, the charge is several as well as joint, so that one may be convicted and the others acquitted. Comm. «. Griffin, (3 C.) 57 523; Comm. v. Slate, (11 G.) 77 60; Comm. «. Jenks, 138 484. 247. So one may be convicted, after a not. pros, as to the 'other. Comm. v. Colton, (11 G.) 77 1; Comm. ». Brown, (12 G.) 78 135. 248. Persons guilty of adultery together may lie jointly indicted. Comm. % Elwell, (2 Met.) 43 190. 249. Two may be jointly indicted, one for nrealsmg and entering a building and stealing inerein and one for receiving the stolen goods. Comm. «. Darling, 129 112. " 250. go a thief and the receiver of the stolen goods may be indicted together. Comm. v. Adams, (7 G.) 73 43. without? tW ° may he indicted f or selUn S liquors Comm. a. Tower, (8 Met.) 49 527; u>mm. „. sioan, (4 C.) 58 52. 252. Husband and wife may be jointly in- dicted, and upon sufficient proof both may be convicted. Comm. v. Murphy, (2 G.) 68 510; Comm. v. Tryon, 99 442 253. "Where two were indicted and tried for larceny, and one was acquitted, but the jury could not agree as to the other, the court dis- charged the acquitted defendant; and continued the indictment as to the other. Comm. 1>. "Wood, 12 313. 254. "Where one count of an indictment charged F, N, and S, with obtaining money and property from A by an unlawful game; and the second count charged the same offence upon F, as principal, and N and S as acces- sories before and after the fact, and F alone- was tried, and convicted upon the first count and acquitted upon the second, it was held that the indictment was good, and the judgment Fitzgerald v. Comm., 135 266. 255. "Where two are jointly indicted as prin- cipals, both can be convicted only upon proof of some joint and simultaneous act; thus, if two are indicted for receiving stolen goods, and the proof is that each received them at differ- ent times, one only can be convicted. Comm. «. Slate, (11 G.) 77 60. See, also, Comm. v. Sampson, 97 407: Comm. v. "Weatherhead, 110 175. 256. Two persons unlawfully fishing in the same boat, each on his own account, are joint offenders. Comm. v. "Weatherhead, 110 175. 257. Where two are indicted as common sellers of intoxicating liquors, an instruction that either may be convicted, for any sale made by him, without reference to any joint par- ticipation or privity of the two, is correct, and will sustain the conviction of one only. Comm. v. Cook, (12 A.) 94 542. (3.) Describing written Instruments. [See, also, ante. III, (3); and post, VIII, (35); Vin, (48); VIII, (50).] 258. In an indictment for larceny or embez- zlement of a bank note, or other written in- strument of value, or for obtaining it by false pretences, or by any other criminal act which is made an offence by statute, a brief general description of the instrument, and the value thereof, suffices. Comm. v. Richards, 1 337; Fitzger- ald o. Comm., 135 266. [See ante, III, (3).] 259. In an indictment for forgery of a bank bill, or passing a forged bank bill, the instru- ment must be set out; but words, figures, de- vices, mottoes, and the like, merely ornamental in their character, and forming no part of the contract, may be omitted. Comm. ■». Bailey, 1 62; Comm. «. Stevens, 1 203; Comm. v. Taylor, (5C.) 59 605. 260. Before St. 1864, Ch. 250, § 1; P. S., Ch. 214, § 26, it was held that the entire contract 124: INDICTMENT, ETC., IV, (3),. (4). must be set out; and that it was a fatal vari- ance to omit the name of the state, as it forms part of the date and of the contract. Comm. ■». Wilson, (2 G.) 68 70. 261. But the indorsement of a forged prom- issory note need not be set out, although it is also forged. Comm. «. Ward, 2 397; Comm. v. Adams, (7 Met.) 48 50. 262. Qu., whether substituting "cashier" for " cash'r," in describing a bank bill, is fatal. Comm. v. Woods, (10 G.) 76 477. 263. Where an indictment, for obtaining money, by pretending that a promissory note was genuine, omitted the words, "this note is secured by real estate mortgage," which were written in the margin, it was held that there was no variance since the statute of 1864. Comm. ». Parmenter, 121 354. See, also, Comm. v. Hall, 97 570; Comm. v. Henry, 118 460. 264. An indictment for passing an uncurrent bank bill, is fatally defective, if the president's and cashier's names are omitted, although it al- leges that the jurors cannot give a more par- ticular description. Comm. ». Clancy, (7 A.) 89 537. 265. Where a forged instrument does not state, in terms, any contract in detail, but only words and abbreviations, from which a contract may be inferred, the indictment must contain allegations stating the legal contract, and show- ing some valuable legal interest, arising from its ownership or possession. Comm. v. Ray, (3 G.) 69 441. 266. Where an indictment for forging a rail- road ticket, expressed upon its face to be " good for this day only," describes the ticket as signi- fying that it must be used continuously, and without stopping at intermediate stations, the variance is fatal. Comm. v. Ray, (3 G.) 69 441. 267. But where the instrument is in the de- fendant's possession, or cannot be produced, that fact maybe averred, and the substance may be stated. Comm. v. Houghton, 8 107. 268. An indictment for printing an obscene paper, must set it out in words; but where it is so obscene, as to render its appearance on the record improper, that fact may be averred, and a description substituted. Comm. i>. Holmes, 17 336; Comm. v. Tarbox, (1 C.) 55 66. 269. The description must be sufficient to identify the publication. Comm. v. Wright, 139 382. 270. Annexing one of the original printed papers, is not a sufficient indication that it is set out in the very words. Comm. v. Tarbox, (1 C.) 55 66. 271. Before the statute of 1864, it was held, strictly, that an indictment for a libel must set out the very words of the libel; but if part only of a publication was the subject of the indict- ment, that part sufficed. Comm. «. Wright, (1 C.) 55 46; Comm. ». Harmon, (2 G.) 68 289. 272. Alit&r, if the part not set out, alters in any respect, by its context or connection, the part set out; but a date, or a memorandum of time or place, which does not vary or modify the effect of the rest, is immaterial. Comm. v. Harmon, (2 G.) 68 289. 273. The words " according to the purport, and effect, and in substance," do not import that the very words of the libel are given; and they cannot be rejected as surplusage, where they precede " as follows." Comm. t>. Wright, (1 C.) 55 46. 274. But the word "tenor," and the words, "in the words and figures following," import that an exact copy of the libel is set out. Comm. ■». Wright, (1 C.) 55 46. See, also, Comm. v. Stow, 1 54; Comm. v. Bailey, 1 62. 275. Such is, also, the effect of the word "tenor," in an indictment for forging a bank bill. Comm. ■». Stevens, 1 203. 276. Quotation marks will not supply the want of an averment, that the matter set out contains the very words of the libel. Comm. v. Wright, (1 C.) 55 46. (4.) Indictment upon a statute, [See, also, ante, I; post, VII.] 277. In setting out a statutory offence, it is ' in general sufficient to pursue the very words of the statute, if, by so doing, the act is fully, directly, and expressly charged, without un- certainty or ambiguity. Comm. v. Ashley, (2 G.) 68 356; Comm. «. Welsh, (7 GO 73 324; Comm. v. Harris, (13 A.) 95 534; Comm. ». Barrett, 108 302; Comm. v. Ashton, 125 384. See, also, Comm. v. Cone, 2 132; Comm. v. Clapp, (5 P.) 22 41; Comm. d. Dana, (2 Met.) 43 329; Hop- kins v. Comm., (3 Met.) 44 460; / Comm. ». Edwards, (12 C.) 66 187; Comm. v. Raymond, 97 567; Comm. v. McClel- lan, 101 34; Comm. «. Malloy, 119 347; Comm. •». Dyer, 128 70. 278. But if the words of the statute do not set forth, and were not intended to set forth, all that is necessary to constitute the crime, the additional facts must be alleged. Comm. v. Dyer, 128 70. See, also, Comm. ». Slack, (19 P.) 36 304; Comm. ■e. Thurlow, (24 P.) 41 374; Comm. v. Col- lins, (2 C.) 56 556; Comm. «. Clifford,. (8 C.) 62 215; Comm. ■». Wolcott, (10 C.) 64 61; Comm. d. Bean, (11 CJ 65 414; Comm. ». Lindsay, (11 C.) 65 415; Comm. v. Hendrie, (2 G.) 68 503; Comm. v. Pilburn, 119 297. 279. And unless the statute is set out, noth- ing will make good an indictment, which does not bring the act within all the material words of the statute. Brown v. Comm., 8 59; Comm. v. Clifford, (8 C.) 62 215. 280. Where the statute creates an offence, and gives it a distinct appellation, the offence INDICTMENT, ETC., IV, (4), (5). 725 nay be charged by the statutory definition, without giving the particulars thereof. TuW «. Comm., (4 Met.) 45 357; Comm. o.Ashley, (2 G.) 68 356;Comm. «. Boon, (2 6.) 68 74; Comm. v. Woods, (9 6.) 75 181. 281. So where a statute declares that certain liquors, not actually intoxicating, shall be deemed intoxicating within its meaning, an in- dictment under the statute may describe them as intoxicating. Comm. v. Timothy, (8 a.) 74 480. 282. It is unnecessary, in an indictment upon a pablio statute, to indicate the statute, or spec- ially refer to it, or any section of it. Comm. ■». Griffin, (21 P.) 38 523; Lamed v. Comm., (12 Met.) 53 240; Comm. o. Hoye, (11 G.) 77 462. 283. Where a statute punishes an offence with greater severity, when accompanied with certain aggravating circumstances, it is un- necessary to aver that those circumstances did not exist; in such a case the minor offence only is deemed to be charged. Comm. v. Squire, (1 Met.) 42 258; Lamed v. Comm., (12 Met.) 53 240; Comm. «. Hamilton, (15 G.) 81 480; Comm. v. Beynolds, 122 454. 284. It is unnecessary, in an indictment under a statute, to pursue the exact language of the statute, if the essential ingredients of the crime are set forth; or to allege the conclu- sion that the act was done "unlawfully," "bur- glariously," "feloniously," or the like. Josslyn «. Comm., (6 Met.) 47 236; Comm. «. Hulbert, (12 Met.) 53 446; Comm. v. Twitchell, (4 C.) 58 74; Comm. «. Doherty, (10 C.) 64 52; „■, Comm. «. Bean, (11C.) 65 414; Comm.. ||„ ' v. Fogerty, (8 G.) 74 489; Comm. «. |. Hart, (11 C.) 65 130. 290. A fortiori, an indictment under a statute need not negative an exception created by a subsequent statute. Comm. •». Sheffield, (11 C.) 65 178. 291. The words "other than," "unless," "not being," and the like, suffice to create an exception. Comm. i). Hart, (11 C.) 65 130. 292. An indictment under G. S., Ch. 161, §38; P. S., Ch. 203, §40, which alleges that the defendant was the clerk, servant, and agent of A, B, and C, sufficiently negatives the fact of apprenticeship, by averring that he was not an apprentice of A, B, and C. Comm. v. Smith, 116 40. 293. Such an indictment, which avers that the property embezzled was the property of A, B, and C, sufficiently negatives the consent of the owners by averring that it was taken without the consent of A, B, and C. Comm. v. Smith, 116 40. 294. In an indictment upon a statute forbid- ding the disinterment of a human body, "with- out the consent of the selectmen of any town," it suffices to aver that the defendant was not authorized by the selectmen of the town, where the body had been buried. Comm. «. Loring, (8 P.) 25 370. (5.) Surplusage; repugnancy. [See, also, ante, arts. 189, 203, 273; poet, VII; and VIII, passim.] 295. It is sufficient, upon the trial of an in- dictment, to prove so much of the offence charged therein, as constitutes an offence pun- ishable by law. Matters of aggravation, with- out which a complete offence is set out, may be disregarded, either upon the trial, or upon a mo- tion in arrest. Comm. ■». Griffin, (21 P.) 38 523; Lamed e. Comm., (12 Met.) 53 240; Comm. v. O'Brien, 107 208; Comm. v. Adams, 127 15; Comm. «. Dyer, 128 70. See, also, Comm. t>. Pray, (13 P.) 30 359; Comm. v. Tuck, (20 P.) 37 356; Comm. v. Hope, (22 P.) 39 1 Turns v. Comm., (6 Met.) 47 224 Comm. v. Bryden, (9 Met.) 50 137 Comm. v. Kirby, (2 C.) 56 577; Comm. v. Woodward, 102 155; Comm. v. Ken- nedy, 131 584. Comm. v. Atwood, 11 93, overruled pro tanto. 296. Eepugnancy in an immaterial part of an indictment may be rejected as surplusage. Comm. v. Pray, (13 P.) 30 359. 726 INDICTMENT, ETC., IV, (5), (6), (7). 297. An indictment against an innkeeper for suffering persons to play at "cards and other unlawful games," is sufficiently certain, as the words " and other unlawful games " may be re- jected as surplusage. Comm. v. Bolkom, (3 P.) 20 281 298. So if it uses the expression "the game of cards," the words "the game of" may be rejected as surplusage. Comm. v. Arnold, (4 P.) 21 251 299. An averment, in an indictment for man- slaughter, that the killing was " wilful " is plusage. Comm. i). Woodward, 102 155 300. An allegation that an offence, punish- able at common law only, is contrary to a statute, may be rejected as surplusage. Comm. v. Hoxey, 16 385; Comm. o. Reynolds, (14 G.) 80 87. 301. In an indictment for abortion, an alle- f;ation of an act committed after the coming orth of the child, is surplusage. Comm. v. Brown, (14 G.) 80 419. 302. In an indictment for disinterring a corpse, an allegation of the ownership of the burying ground is surplusage. Comm. v. Cooley, (10 P.) 27 37. 303. "Feloniously" is surplusage, if the of- fence charged is not a felony. Comm. v. Squire, (1 Met.) 42 258. 304. Upon an indictment for unlawfully selling liquors, an allegation that the defendant presumed to be a seller, without a license, is in- sufficient to charge him as a common seller, and may be rejected, the remainder of the in- dictment being sufficient for a single sale. Comm. •». Stowell, (9 Met.) 50 569. 305. But where, in an indictment for arson of a dwelling house, by setting on fire an ad- joining building, the name of the owner of the latter was unnecessarily inserted, it was held that the government must prove his ownership. Comm. v. Wade, (17 P.) 34 395. 306. Allegations in an indictment for rescuing cattle on the way to the town pound, describing the place as "the town way" and "the said highway," are not repugnant. Comm. v. Hubbard, (24 P.) 41 98. 307. An indictment for burning a building, describing it as one not completed, is not bad for repugnancy. Comm. v. Squire, (1 Met.) 42 258. (6.) Misnomer. [See, also, post, VII; Name.] 308. Since the statute, G. S., Ch. 172, § 19; St. 1860, Ch. 191, § 10; P. S., Ch. 213, § 16, it is no longer necessary, in an indictment or com- plaint, to append to the defendant's name the appropriate addition, nor, where the jurisdiction does not depend upon it, his residence. Comm. v. Taylor, 113 1. 309. The middle name of a person, or an initial to represent it, is an essential part of his name; and if it is omitted in giving the de- fendant's name, an indictment or complaint is fatally defective. Comm. v. Perkins, (1 P.) 18 388. See, also, Comm. o. Hall, (3 P.) 20 262; Comm. i). Shearman, (11 C.) 65 546; Comm. v. McAvoy, (16 G.) 82 235; Terry v. Sisson, 125 560. 310. But if the name is correctly given, it is not necessary to add "junior," or the like., Comm. v. Perkins, (1 P.) 18 388. See, also, Kincaid «. Howe, 10 203; Cobb v. Lucas, (15 P.) 32 7; Comm. e. Parmenter, 101 211. 311. Upon an objection to an indictment against a town, by the name of "the town of ; Dedham," the court held that the defendants were rightly named. Comm. v. Dedham, 16 141. See, also, Lowell v. Morse, (1 Met.) 42 473. 312. Where, pending an indictment against a town, its name was changed by the legisla- ture, the court refused to quash the indictment. Comm. v. Phillipsburg, 10 78. 313. It is not a ground of error that a defend- ant, who has pleaded in chief, was indicted and convicted by the name of "J. T., other- wise known as T. D." as misnomer is matter of abatement only. Turns v. Comm., (6 Met.) 47 224. See, also, Comm. v. Dedham, 16 141; Comm. •». Lewis, (1 Met.) 42 151; Comm. *. Butler, (1 A.) 83 4; Comm. v. Darcey, (12 A.) 94 539; Comm. v. Fredericks, 119 199. 314. Where the defendant is described in the indictment as "A. B., wife of C. D.," the ad- dition is matter of description only, and, if erroneous, the remedy is by plea in abatement. Comm. ■». Lewis, (1 Met.) 42 151. 315. If misnomer is pleaded in abatement to an indictment for a misdemeanor, and the issue is found against the defendant, he is not entitled to plead over as matter of right. Comm. v. Carr, 114 280. (7.) Amendment. [See, also, Amendment.] 316. Amendments, supplying merely clerical omissions in the record, may be made in crim- inal as in civil causes. Comm b. Taylor, 1 13 1. See, also, Comm. v. Phillips, (11 P.) 28 28; Comm. v. Magoun, (14 G.) 80 398. 317. An indictment cannot be amended with- out the prisoner's consent; but, semble, that it may be amended with his consent, except in a capital cause. Comm. v. Smith, 1 245; Comm. v, Phillipsburg, lO 78; Comm. v. Mahar, (16 P.) 33 120; Comm. «. Holley, (3 G.) 69 458. 318. But the legislature has constitutional power to permit an amendment, even against the defendant's consent. Comm. v. Holley, (3 G.) 69 458. INDICTMENT, ETC., V, (1), (2). 727 V. Modes op objectins to Defects. (1.) Arrest of judgment. [See, also, Judgment, III.] 319. The statute of jeofails does not extend to indictments; and if an indictment is mate- Tally defective, judgment must be arrested. Comm. v. Morse, 2 128; Comm. 11. Child, (13 P.) 30 198; Comm. ». Col- lins (2 C.) 56 556; Comm. v. Bean, (14 G.) 80 52. 320. Misnomer is not a ground for arrest of judgment; it must be pleaded in abatement. Comm. v. Dedham, 16 141; Turns v Comm., (6 Met.) 47 224; Comm. v. Butler, (1 A.) 83 4. 321. Nor are, at common law, erasures, ab- breviations, or interlineations in the indictment. Comm. ». Pagan, (15 G.) 81 194; Comm. v. Desmarteau, (16 G.) 82 1. 322. Nor is the pendency of another indict- ment for the same cause, in the same court. ■ Comm. v. Murphy, (11 C.) 65 472. 323. Nor the insufficiency of one count only, where all the counts are for the same offence. Comm. v. Howe, (13 G.) 79 26. 324. Semble, that duplicity is not a ground for arresting judgment, at common law. Comm. v. Tuck, (20 P.) 37 356. See, however, Comm. *. Symonds, 2 163; Comm. v. "Woods, (9 G.) 75 131. 325. At common law, the conviction of an accessory, before the conviction of the principal, is a ground for arresting judgment, although the objection was not taken at the trial. . Comm. v. Andrews, 3 126. 326. The repeal, before judgment, of a statute under which the act was made an offence, with- out a saving clause, is a ground for arresting judgment. Comm. •». Marshall, (11 P.) 28 350; Comm. v. Kimball, (21 P.) 38 373; Comm. v. Herrick, (6 C.) 60 465; Comm. v. Pattee, (12 C.) 66 501. See, also, Comm.' v. Old Colony, etc., R. R., (14 G.) 80 93, and Statute, III. 327. Judgment will be arrested upon a de- fective indictment, although the defendant has pleaded nolo contendere. Comm. •». Northampton, 2 116; Comm. v. Grey, (2 G.) 68 501. • !?»" A 1 * 110 "^ a complaint or indictment is defective, the proceedings are not void, and a conviction thereunder is a bar to another prosecution for the same offence. Comm. v. Loud, (3 Met.) 44 328. 329. St. 1864, Ch. 250, § 3; P. S., Ch. 214, § <«, prevents an arrest of judgment for formal delects, not affecting the jurisdiction. Comm.B, Chiovaro, 129 489; Comm. ■0. Kennedy, 131 584. ; (2.) Motion to quash; formal detects [See, also, post, VII.] su 30 r o B K ef ? re st - 1864 - Ch - a50 - § 2 ; P - S-, Ch. «*, 8 45, it was within the discretion of the court to quash an indictment, or to leave the defendant to his motion in arrest; and a refusal to quash was not ground of exception. Comm. -v. Eastman, (1 C.) 55 189; Comm. v. Ryan, (9 G.) 75 137. _ 331. Under that statute, the defendant has no right to a ruling, whether the objections upon which he relies will be available upon motion in arrest; and an exception does not lie to a re- fusal of the judge to require him to point out the defects in the indictment, before the testi- mony is put in. Comm. v. Stoddard, (9 A.) 91 280. 332. An indictment ought not to be quashed in a doubtful case, but only where it is clearly insufficient to sustain a judgment against the defendant. Comm. v. Eastman, (1 C.) 55 189; Comm. «. Hawkins, (3 G.) 69 463;' Comm. i). Pratt, 137 98. 333. A prisoner indicted for a capital offence, and arraigned before the full court, may sug- gest a defect in the indictment, and the court will then adjudicate thereupon. Comm. v. Mahar, (16 P.) 33 120. 334. An indictment will not be quashed at common law, because it contains one or more defective counts, if there is a good count in it, upon which judgment may be rendered. Comm. v. Hawkins, (3 G.) 69 463; Comm. 13. Howe, (13 G.) 79 26. [See. also post, art. 340.] 335. Since St. 1864, Ch. 250, § 2; P. S., Ch. 214, § 25, a decision overruling a motion to quash is subject to exception. Comm. ». McGovern, (10 A.)' 92 193. 336. A motion to quash an indictment, on the ground that no offence is fully, formally, and plainly set up therein, and that all the facts which constitute the offence are not properly set forth, does not assign specifically the objec- tions relied upon, within that statute. Comm. v. Murray, 135 530. See, also, Comm. v. Sholes, (13 A.) 95 554; Comm. 1). Intoxicating Liquors, 105 176. 337. So of a motion "because the same is un- certain, indefinite, and insufficient." Comm. v. Jenks, 138 484. 338. A motion to quash for formal defects is too late, after a jury has been once impannelled; although they rendered a verdict which was set aside, and the motion was made before the second jury was impannelled. Comm. •». Fitchburg R. R., 126 472. See, also, Comm. ». O'Connell, (12 A.) 94 451. 339. The statute of 1864 is constitutional. Comm. v. McGovern, (10 A.) 92 193; Comm. ». Walton, (11 A.) 93 .238. 340. Two counts in one indictment are so far distinct presentments, that under the statute of 1864, one may be quashed without the other. Comm. v. Dorus, 108 488; Comm. D.Stevenson, 127 446; Comm. •». Ken- nedy, 131 584. 341. Section 2 of that statute (P. S., § 25) does not apply to an indictment containing only one count, which duly charges an offence but 728 INDICTMENT, ETC., V, (2), (3); VI, (1), (2). contains a defective allegation of an aggrava- tion of it. Comm. i>. Kennedy, 131 584 343. Upon an indictment for an assault with intent to ravish, where the defendant pleaded not guilty, and, before the jury were sworn, moved to quash that portion of the indictment alleging an intent to ravish, because the woman's name was not mentioned therein, and the judge denied the motion; whereupon the defendant withdrew his plea, pleaded guilty, and alleged exceptions; it was held that the indictment charged only a simple assault, and could not be quashed upon motion, and the defendant could be sentenced, under the plea of guilty, only for a simple assault. Comm. v. Kennedy, 131 584. 343. In such a case, the common law rule, that the indictment will not be quashed for a de- fective statement of matter of aggravation, is not changed. Comm. 0. Kennedy, 131 584. 344. As to the common law rule, see Comm. v. Fischblatt, (4 , Met.) 45 354; Comm. v. Kirby, (2 C.) 56 577; Comm. ». Hathaway, (14 G ) 80 392. 845. An objection that an indictment against a railroad corporation, for causing death by negligence, alleges that the negligence was that of the servants of the corporation, is not a formal objection within the statute of 1864, and may be taken after the jury have been sworn. Comm. 0. Boston & M. Railroad, 133 383. (3.) Objections taken at the trial. [See Exception; New Trial; Trial.] VI. Pleadings subsequent to the Indict- ment. [As to arraignment, pleading thereupon, or stand- tog mute, see Practice, II, (2).] (1.) Demurrer. 346. Upon an indictment for murder, before the jury were impannelled, the prisoner's coun- sel moved to allow the prisoner to withdraw his plea of not guilty, and to demur; the court denied the motion, but consented to hear the objection upon a motion to quash. Comm. 0. Chapman, (11 C.) 65 422. 347. Upon overruling a demurrer to an in- dictment for a misdemeanor, the superior court may order judgment for the Commonwealth, although the defendant has excepted Comm. v. Gloucester, 110 491. See, also, Comm. v. McGovern, (10 A.) 92 193. 348. Where a demurrer, to an information for additional punishment of a convict, is over- ruled, respondeat ouster is not the necessary judgment, but judgment in chief may be rendered. Evans v. Comm., (3 Met.) 44 453. 349. Semble, that the rule is otherwise in a case of felony. E-ans v. Comm., (3 Met.) 44 458. (3.) Plea. 350. The pendency of another indictment in the same court is not a sufficient ground for a plea in abatement. Comm. v. Drew, (3 C.) 57 279; Comm. 0. Berry, (5 G.) 71 93; Comm. v. Lahy, (8 G.) ante, art. 322, 2 459. See, also, 351. Where the whole or part of a penalty goes to the informer, he who first brings a qui torn action, or commences a prosecution by in- dictment or information, acquires the right in the penalty; and that prosecution, until it is determined, excludes all others. Comm. 0. Churchill, 5 174; Comm. 0. Cheney, 6 347; Comm. 0. Drew, (3C.) 57 279. 352. The pendency of such an action, at the time when an indictment for the same offence is returned, must be pleaded and proved like a plea of autrefois acquit or autrefois convict, and will defeat the indictment. Comm. 0. Churchill, 5 174; Howard 0. Comm., 13 221; Comm. v. Murphy, (2G.) 68 510. 353. The omission of the district-attorney to make any formal reply to an invalid plea in bar, signed by the defendant's counsel, does not make the averments therein competent evidence for or against the defendant. Comm. 0. Lannan, (13 A.) 95 563. 354. Where the plea in bar is invalid, the de- fendant may be required to plead further; and if he refuses so to do, a plea of not guilty may be entered. Comm. 0. Lannan, (13 A.) 95 563. 355. A plea in bar to an indictment for a vio- lation of the statutes, relating to the manufac- ture and sale of intoxicating liquors, which sets up a license and payment of a tax under the United States revenue laws, and alleges_ that the statutes in question are unconstitutional, etc., is bad, and requires no answer from the district-attorney. Comm. v. Lannan, (13 A.) 95 563. 356. Where an indictment charges the de- fendant in different counts as accessory to different principals, in different degrees, and all have not been convicted, he must plead to the counts, as far as it charges him with respect to the one convicted. Comm. v. Knapp, (10 P.) 27 477. 357. Where to an indictment charging the de- fendant with receiving different articles of prop- erty, knowing the same to have been stolen, specifically describing each, and alleging its value, he pleads "guilty of receiving $50 worth of said property, in manner and form as set forth in the indictment," no judgment can be rendered upon the plea. O'Connell0. Comm., (7 Met.) 48 460. 358. A plea of nolo contendere is an implied confession; but if pleaded with a protestation of innocence, it will not conclude the defendant INDICTMENT, ETC., VI, (2), (3); VII. 729 ftom disputing the allegations of the indictment, in a civil action. Comm. i). Horton, (9 P.) 26 206; Comm. v. Tilton, (8 Met.) 49 232. 859. It is discretionary with the court whether to receive a plea of nolo contendere. Comm. v. Horton, (9 P.) 26 206; Comm. «. Tilton, (8 Met.) 49 232. 860. The court will allow a defendant to offer evidence in mitigation of sentence, after plea of 2uilty, and a fortiori after a nolo contendere 6 Comm. v. Horton, (9 P.) 26 206. 361. As far as regards the proceedings upon the indictment, a plea of nolo contendere has the same effect as the plea of guilty, and judgment of conviction follows it. Comm. «. Horton, (9 P.) 26 206. 362. A plea of not guilty involves a denial of every material fact charged in the indictment, and the government must prove every essential Comm. v. Briggs, (5 P.) 22 429. 363. After a plea of guilty, the defendant can- not file another plea without leave of the court; and the rule is the same upon appeal to the supreme court, after conviction in the police court. Comm. v. Blake, (12 A.) 94 188: Comm. v. Lannan, (13 A.) 95 56° 364. In a criminal cause, a special plea in bar is bad, which sets up more than one defence. Nauer ». Thomas, (13 A.) 95 572. 365. Where a defendant pleads a former con- viction, and also not guilty, he cannot he put to trial upon the second plea, agaiDSt his objec- tion, until the first is found against him. Comm. v. Merrill, (8 A.) 90 545 366. To a complaint containing several counts, a plea of not guilty of the "offence" charged is good. Comm. ». Holmes, 137 248. I (3.) Subsequent pleadings. [See, also, ante, art. 353.] r 367. Where the defendant pleads in bar, and goes to trial without an issue being taken there- upon, either in law or to the country, he waives tae failure to join issue. Comm. v. McCauley, 105 69. 368. Where, to an indictment for larceny la a dwelling house, the; defendant pleaded a lormer conviction in the police court for pilfer- J?S> averring that it was the same offence, and jaat the police court had jurisdiction thereof; to wmch the replication was that larceny in a °J„ m g, house was a high and aggravated «nme, of which the police court had no juris- diction; and the defendant rejoined, alleging inat the stealing charged in the complaint was not a stealing in a dwelling house, and was not » aign and aggravated crime, of which the police court had no jurisdiction; it was held on file emurrer that the rejoinder was not Comm. v. Curtis, (11 P.) 28 134 Vol. I— 92j--~ D .) 38 334; Comm.' 19 531. VII. Complaint. 369. A complaint before a magistrate to cause a person to be arrested, and committed or bailed, to answer an indictment, or to recover a penalty for violation of a statute, is a sum- mary proceeding, in which the fact charged must be strictly within the statute, although the same rigid adherence to forms is not re- quired, as in an information or indictment. Comm. v. Messenger, 4 462; Comm. i>. Phillips, (16 P.) 33 211; Comm. «. Flynn, (3C.) 57 525. 370. But where a complaint is the basis of a substantive criminal prosecution, before a court of competent jurisdiction to hear and decide the same; it must charge the commission of the offence with all the certainty of an indictment. Comm. v. Phillips, (16 P.) 33 211; Comm. v. Dean, (21 P.) ». Keith, (8 Met.) 4^ 371. A clerical error, which cannot mislead or prejudice the defendant, as where the com- plainant's name is erroneously given; or where, the date of the complaint is omitted, or the month is erroneously ctatcd r.s June, instead of May, will not vitiate a conviction, if the signa- ture to, and the date of, the jurat and of the warrant are correct. Donahoe *. Shed, (8 Met.) 49 326; Comm. v. Randall, (4 G.) 70 36; Comm. t. Blake, (12 A.) 94 188; Comm. «. Egan, 103 71; Comm. v. McMahon, 133 394. 372. As to other misrecitals, surplusages, and and clerical errors, see Comm. v. Hunt, (4 P.) 21 252; Comm. i>. Penniman, (8 Met.) 49 519; Comm. v. Thayer, (8 Met.) 49 523; Comm. ». Baker, (10 C.) 64 405; Comm. v. Randall, (4 G.) 70 36; Comm. v. Keefe, (7 G.) 73 332; Comm. -o. Butler, (1 A.) 83 4; Comm. •». Hagar- man, (10 A.) 92 401; Comm. v. Intox. Liq., 135 519. 373. So where the illegal act is stated in the complaint to have been committed in the year 1878, but the jurat is dated in 1870, the error in the -urat will be rejected: Comm. •». Intox. Liquors, 128 72. 374. But such an error is fatal, if there is nothing to obviate it. Comm. v. Doyle, 110 103. 375. Where a complaint sets forth facts con- stituting a statutory offence, an omission to refer to the statute, or a mistake in tjie date of the statute is immaterial; but where the facts are set forth -only by reference to the statute, a mistake in the year of its enactment is fatal, and may be first taken on appeal. Comm. ». Unknown, (6 G.) 72 489; Comm. v. Keefe, (7 G.) 73 332: Comm. v. Burke, (15 G.) 81 408; Comm. •». Walton, (11 A.) 93 238; Comm. «. Washburn, 128 421. 376. So an erroneous reference to a repealed statute is immaterial, if the facts set forth con- stitute an offence within the existing statute. Comm. ■». Peto, 136 155. See, also, Comm. v. Hitchings, (5 G.) 7 1 483; Comm. v. Keefe, (7 G.) 73 332. Y30 INDICTMENT, ETC., VII. 377. Where a complaint under the liquor law was addressed to "A. B., justice of the peace, designated and commissioned to issue warrants in criminal causes," and the jurat was signed by A. B., justice of the peace, authorized "to issue warrants as aforesaid," it was held that the jurisdiction sufficiently appeared, although the town was not named. Comm. v. Peto, 136 155. 378. The complaint and warrant must show the magistrate's official character; but as no one but a justice of the peace can be a trial justice, the magistrate's signature to the jurat and war- rant, as trial justice only, is sufficient. Comm. v. Pay, 126 235; Comm. •». Mosher, 134 226 379. If a complaint against A. B. contains several counts, he may be referred to in sub- sequent counts as " the said A„" although the complainant's first name is the same. Comm. ■». Hagarman, (10 A.) 92 401. 380. The omission of the defendant's place of residence is immaterial, if the court has jurisdiction, irrespectively of the residence. Comm. i>. Taylor, 113 1. 381. A complaint must state with reasonable certainty, a time as that when the offence was committed, although the prosecution is not, in general, confined to the day stated. Comm. v. Penniman, (8 Met.) 49 519; Comm. D.Clark, (4 C.) 58 596; Comm. v. Adams, (1 G.) 67 481; Comm. v. McLoon, (5 G.) 71 91; Comm. ■». Hut-' ton, (5 G.) 71 89; Comm. ». Hitchings, (5G.) 71 482; Comm. v. Doran, (14 G.) 80 37-, Comm. v. Sullivan, (14 G.) SO 97; Comm. v. Hagarman, (10 A.) 92 401 382 And if a time is specified, general words added to embrace a subsequent or preceding period, will not admit proof of the act on another day. Comm. v. Traverse, (11 A.) 93 260. 383. Aliter, as to a conlinuando, laid in speci- fied words, which is good, and admits evidence covering the entire time.- Comm. v. Woods, (9 G.) 75 131; Comm. v. Snow, (14 G.) 80 20; Comm. v. Kingman, (14 G.) 80 85; Comm. v. Donnelly, (14 G.) 80 86, note; Comm. «. Frates, (16 G.) 82 236; Comm. v. Par- ker, (4 A.) 86 313; Comm. v. Sullivan, (5 A.) 87 511; Comm. v. Walton, (11 A.) 93 238; Comm. v. Blake, (12 A.) 94 188; Comm. v. Chisholm, 103 213; Comm. ii. Canada, > 107 405- Comm. v. Dunn, 111 426. [See, also, ante, HI,(1).] 384. Where the penalty has been increased, an allegation that the offence was committed on a different day from the day proved, is not sup- ported. Comm. v. Maloney, 112 283. 385. The complaint must also aver that the offence was committed at a certain town, and in a certain county, which must be within the ju- risdiction of the magistrate or court, and the proof must correspond to the allegation. Thayer « Comm., (12 Met.) 53 9; Comm. v Barnard, (6 G.) 72 488; Comm. v. Cummings, (6 G.) 72 487; Comm. ». Beily, (9 G.) 75 1; Comm. v. Kingman, (14 G.) 80 85; Comm. v. Hutchinson, (6 A.) 88 595; Comm. v. Desmond; 103 445; Comm. v. Bacon. 108 26. 386. But if the city and county are named, it is not necessary to add that the offence was committed within this Commonwealth. Comm. v. Quin, (5 G.) 71 478. 387. If the offence was committed within 100 yards of the dividing line between two counties, the complaint may allege that it was committed within either. Comm. i>. Gillon, (2 A.) 84 502. 388. Where the time and place, and the com- plainant and defendant, have once been named, they may be referred to afterwards, as " said complainant," "said J. S.," and "the town and county aforesaid." Comm. v. Clapp, (16 G.) 82 237. 389. A complaint, duly certified by the ma- gistrate to have been sworn to, cannot be affect- ed by proof that the warrant was issued without further examination. Comm. ■». Farrell, (8 G.) 74 463. 390. A complaint must be subscribed by the complainant, but his mark is sufficient, without an attesting witness. Comm. «. Sullivan, (14 G.) 80 97. 391. The use of initials only, in all but the surname, is no objection to the signature to the complaint, or to the designation of the magis- trate in the caption and the jurat. Comm. v. Quin, (5 G.) 7 1 478; Comm. ■o. Wallace, (14 G.) 80 382; Comm. v. Melling, (14 G.) 80 388. 392. The signature to a complaint for larceny, above the charge, is not sufficient. Comm. v. Barhight, (9 G.) 75 113. 393. The jurat must be sworn to, and sub- scribed by the complainant, and certified to by the magistrate; but any language suffices, which shows, by necessary implication, that the oath was duly administered by the magistrate to the complainant. Comm. v. Wingate, (6 G.) 72 485; Comm. v. Keefe, (7 G.) 73 332; Comm. «. Dillane, (11 G.) 77 67; Comm. v. Wallace, (14 G.) 80 382; Comm. •». Bennett, (7 A.) 89 533; Comm. .«. Des- mond, 103 445; Comm. ». Intox. Liquors, 122 8. 394. Where the complaint was presented to, and sworn to before, the police court, the clerk's certificate to the jurat is prima fade proof that the court was in session. Comm. «. Calhane, 110 498. 395. Formal objections to a complaint, in a police court, cannot be first taken upon appeal. Comm. v. Norton, (13 A.) 95 550; Comm. v. Blanchard, 105 173; Comm. v. Sheehan, 105 174; Comm. «. Harvey, 111 420; Comm. •». Legassy, 113 10; Comm. «. Doherty, 116 13; Comm. v. McCue, 121 358; Comm. «. O'Keefe, 123 252; Comm. «. Lewis, 123 251. 396. And in the court below, a formal objec- tion must have been specifically pointed out, not generally made. Comm. «. Walton, (11 A.) 93 238j INDICTMENT, ETC., VII; VIII, (1), (2), (3). 731 Comm. 1). Emmons, 98 6; Comm. ■». Intox. Liq., 105 176; Comm. ■». Brig- ham, 108 457; Comm. v. Wolcott, 110 67; Comm. v. Locke, 114 288. 397. Nor can such an objection be taken in arrest of judgment. Comm. v. Eagan, 103 71; Simpson v Comm., Ill 417; Green «. Comm., 111 417; Tower v. Comm., Ill 417. 398. If the age of the defendant does not ap- pear upon the record, the objection that under St. 1877, Ch. 210, § 5, the court has no juris- diction, cannot be taken in arrest of judgment. Comm. v. Donahue, 126 51. 399. The interest of the magistrate in the penalty, is not ground for arresting judgment, if the fact does not appear upon the record. Comm. d. Edwards, (12 C.) 66 187. Vin. Indictments and Complaints in par- ticular Cases. (1.) Abortion. [.See, also, Abortion.] 400. As to the sufficiency of an indictment for using an instrument with intent to procure a miscarriage, under St. 1845, Ch. 27; G. S., Ch. 165, § 9; P. 8., Ch. 207, § 9, see Comm. ». Wood, (11 G.) 77 85; Comm. v. Brown, (14 G.) 80 419; Comm. v. Jackson, (15 G.) 81 187; Comm. v. Snow, 116 47; Comm. v. Boynton, 116 343. Comm. v, Brown, 121 69; Comm. v. Corkin, 136 429. 401. As to . the sufficiency of an indictment for administering a poison, drug, etc, under the same statute, see Comm. i>. Brown, (14 G.) 80 419; Comm. . Goldstein, 114 272. 441. In such an indictment, it is not necessary to set forth the policy according to its tenor; and an allegation of intent to injure the insurer sufficiently sets forth that the property was insured. Comm. o. Goldstein, 114 272. 442. Kor is it necessary to allege or prove that the insurer, a. foreign corporation, has complied with the statutes relating to foreign insurance companies. Comm. v. Goldstein, 114 272 (8.) Assault and battery. -Pf^also, Assault and Battery ; and post, TH 443. As to the sufficiency of an indictment under the statute, for an assault upon an officer in the discharge of his duty, and obstructing and hindering him, etc. , see Comm. v. Kirby, (2 C.) 56 577: Comm. «. McGahey, (11 G.) 77 194. ' ,444. If such an indictment does not suffi- ciently charge the statutory offence, the de- fendant may be sentenced for a simple assault, ana judgment will not not be arrested. ' Comm. v. Kirby, (3 C.) 56 577. J$: ^d upon an indictment for an assault S *? t0 maim . or other felonious assault, m defendant may be found guilty of an assault wuriout the intent charged, and thereupon sen- tenced for a simple assault. Comm. •». McGrath, 115 150. See, also, Comm. «. Dean, 109 349; and Post, VII, (39); and VIII, (72). 446. An indictment, alleging that the defend- ant, at a time and place specified, feloniously assaulted A. B., and, being armed with a dan- geaous weapon, did strike, etc., is good, with- out the words " then and there." Comm. ii. Bugbee, (4 G.) 70 206. 447. An indictment, charging an assault upon " C. D., deceased, in the peace of the Common- wealth then and there being," with words of aggravation, charges an assault upon a living person. Comm. *. Ford, (5 G.) 71 475. 448. An indictment, charging an assault upon A with a loaded pistol, held in the defendant's hand, with intent " the said A then and there, with the pistol aforesaid, feloniously, etc., to kill and murder," sufficiently charges an assault with a dangerous weapon, and is sustained by proof of firing the pistol at A within range. Comm. «. Fenno, 125 387. 449. So of an indictment charging substan- tially the same with respect to a gun, and also beating, wounding, etc., with the gun; and it is supported by proof of firing the gun, or beat- ing A with it. Comm. v. Creed, (8 G.) 74 387. 450. An indictment for a felonious assault, which sets forth the facts sufficiently, need not allege that the defendant is a felonious assaulter. Comm. ■». Sanborn, (14 G.) 80 393. 451. Separate assaults upon different persons may be united by separate counts in one indict- ment. Comm. v. Malone, 114 295. 452. And an indictment with one count, charging an assault upon two at the same time, is good, and is supported by proof of an assault upon either. Comm. v. O'Brien, 107 208. 453. The description, in a complaint for an assault, of the person injured as " Mary R., wife of the complainant," suffices. Comm. v. Gray, (2 C.) 56 535. 454. Where a substantive charge of assault is specifically set forth in the complaint, the fur- ther allegation that the injured person was cru- elly beaten, and that the defendant committed other wrongs upon her, may be rejected as sur- plusage. Comm. v. Randall, (4 G.) 70 36. See,. also, Comm. d. Hunt, (4 P.) 21 252. (9.) Barratry. [See, also, BABRATBr.] 455. An indictment for barratry must charge the defendant with being "a common barrator," and need not specify any particular acts; but the court, upon the defendant's application, will require the government to furnish him a bill of particulars. Comm. v. Davis, (11 P.) 28 432; Comm. «t Snelling, (15 P.) 32 321. 456. The bill of particulars is sufficient, if it identifies the legal proceedings relied upon, so that the defendant can readily find the records; and If it is not sufficiently definite to enable- Ite INDICTMENT, ETC., VTH, (10-17). him so to do, that is ground for postponing the trial, until one more definite is furnished. Comm. v, Davis, (11 P.) 28 432. 457. Sufficiency of the bill of particulars. Comm. *. Davis, (11 P.) 28 432. (10.) Bawdy house; house of 111 fames disorderly house. [See, also, Bawdy House; Disorderly House; Intoxicating Liquors ; Nuisance; and post, VIII, (6D.1 458. A count for maintaining a house of ill fame, under the statute, and a count for main- taining a disorderly house, at common law, may he joined in one indictment, without an allega- tion that they are different descriptions of the same act. Comm. ■» Ismahl,. 134 201. 459 R S., Ch. 130, § 8, punishing the keep- ing of a house of ill fame, was not ropealed by St 1855, Ch 405, declaring such a house to be a nuisance, and providing for the punishment for so keeping a nuisance. Comm. v. Davis, (11 G.) 77 48. 460. An indictment for letting a house for the purpose of prostitution, is fatally defective, if it fails to allege time, place, and person, un- less the person is said to be unknown to the jorors; and, also, that he accepted the lease. Comm, i> Moore, (11 C.) 65 600, [See ante. art. 166.1 461 An indictment under G. S., Ch. 165, § 13, P. S., Ch. 207, § 13, which alleges that the defendant kept a house of ill fame, resorted to for the purpose of prostitution, need not allege that it was resorted to by divers persons, or that it was kept for lucre. Comm. v. Ashley. (2 G.) 68 356; Comm. v. Wood, 97 225. 462. See, under the former statute, Jennings «. Comm., (17 P.) 34 80. (11.) Betting and gaming. [See, post, Yin, (37).l (IS.) Billiards. [See, ante, VTO, (S).1 <13.) Blasphemy. [See Blasphemy.] (14.) Breaking and entering a building. [See, ante, VIII. (7); aakpost, VIII, (lO.'i (IS.) Bribery. 463. Sufficiency of an allegation, in an indict, ment for an attempted bribery of a judicial officer, that the matter, with respect to which the bribe was offered, was pending before him, in his official capacity, and that he was duly appointed. Comm. 'v. Murray, 135 530. (16.) Bridge; draw bridge. [See, also, Bridge.] 464. An indictment against a corporation for failing to provide a bridge with piers and a draw, as required by the defendant's charter, is de- fective for want of an averment that the bridge has been built. Comm. ■». Newburyport Bridge, (9 P.) 26 142. 465. In an indictment under St. 1874, Ch, 372, § 115; P. S., Ch. 112, § 155, for disobey- ing the superintendent of a draw bridge, an allegation that he was "duly and legally ap- pointed," suffices as an averment of his authority. Comm. v. Chase, 127 7. 466. And an allegation that it was the draw bridge of the B. & L. railroad, a corporation duly and legally established, etc., over the waters of C. river, and "duly erected and legally maintained as such draw bridge by said corporation," suffices as an averment of the right of the company. Comm. a. Chase, 127 7 467. As to the sufficiency of an averment of the attending circumstances, the superintend- ent's order, and the defendant's disobedience, see Comm. v. Chase, 127 7. (17.) Burglary; other criminal break- ing and entering; burglarious tools, [See, also, Burglary; and ante, arts. 140 to 142.] 468. Under the existing statute, it is sufficient to .allege generally that the offence was com- mitted in the night time; that means the night time as defined in the statute. Comm v Williams, (2 C ) 56 582 See, also, Comm. « Lamb, (1 G ) 67 493. 469. An indictment for burglary may be laid with an intent to steal, and actually stealing, and the defendant may be convicted of the whole, or of the burglary or larceny separately. Comm. v. Hope, (22 P ) 39 1 470. An indictment under P S., Ch. 210, § 8, is sufficient, which alleges that the defendant feloniously, in the night time, attempted to break and enter a certain dwelling house, with intent feloniously to steal, etc., the goods and chattels therein, "and, in such attempt, did then and there break and open three windows" therein, but "was then and there intercepted and prevented in the execution of said offence." Comm. v Shedd, 140 451 See, INDICTMENT, ETC., VIII, (It), (18), (19), (20). 735 also, Comm. b. Flynn, (8 C.) 57 629; Comm. v. McLaughlin, 105 460. 471. The felony, intended to be perpetrated by a burglarious, entry may be stated in general terms as "an intent to commit the crime of larceny," or " rape," or the like, and it is un- necessary to aver that the offence was com- mitted "burglariously." Tully v. Comm., (4 Met) 45 357; Josslyn ». Comm. (6 Met.) 47 236; Comm. *. Doherty, (10 C.) 64 52. 472. The allegation of intent refers to the time and place first stated, and it is not necessary to use the words "then and there," in that allegation. Comm. v. Doherty, (10 C.) 64 52, 473. It is not a misjoinder to charge in one indictment, either in one or several counts, one defendant with breaking and entering a build- ing, and another with receiving the goods Comm. b. Darling, 129 112. 474. As to the description of the building entered, and the property taken, see ante, HI, (3)i and Comm. v. Perris, 108 1. 475. Where two statutes punish the offence of breaking into an office, in the night time, one into an office adjoining a dwelling house, and the other into an office not adjoining a dwelling house, and both inflict a similar pun- ishment, it is unnecessary to state in the indict- ment, whether an office broken into did or did not adjoin a dwelling house. Devoe ». Comm., (3 Met.) 44 Evans b. Comm., (3 Met.) 44 Phillips ». Comm., (3 Met.) 44 Lamed v. Comm., (12 Met.) 53 Qualifying Comm. b. Tuck, (20 P.) 356; Comm. b. Hope, (23 P.) 39 1 316; 453; 588; 240. 37 476. An indictment against two, for having 'in their possession," tools, etc., designed and adapted for the breaking open of buildings, sufficiently charges a jomt possession; and is supported by proof of the commission of the offence on any day before the one specified. Comm ; o. Tivnon, (8 G.) 74 375. , 477. But proof of possession by one, both intending to use them in a joint undertaking, will not sustain it against both. Comm. b. Tivnon, (8 G.) 74 375. 478. It is sustained by proof that some of the mstruments described were in the defendants* possesaon with the intent, and were adapted fnr ( w purpose ' s P e cified although not made ict that purpose. Comm. b Tivnon, (8 G ) 74 375. birii* n J? e k Snd v 0t ? lent need not s P ecif y any EkTS to be i? oken °P en - or Property to be stolen no, need it name the owner of either U)mm.B. Tivnon, (8 G.) 74 375 (18.) Burning, criminal. (See ante, VIII, (7V] «9.) Carrier. ISee Cabbieb, IV, (8).] (20.) Conspiracy. JgftrWSST" " anipost ° YIIl > (31,i "* 480. An indictment, charging a conspiracy to extort money, by threats to accuse one of a crime, is not objectionable because the act amounts to a felony. Comm. b. Andrews, 132 263. See, also, Comm. b. Walker, 108 309. 481. Such an indictment is fatally defective, unless the person, from whom the money was intended to be extorted, is named therein. Comm. b. Andrews, 132 263. 482. As to the proper form of an indictment charging this offence, see Comm. v. O'Brien, (12 C.) 66 84, Comm. b. Andrews,^ 132 263. 483. An indictment may be framed for a con- spiracy to do an act, for the purpose of inducing one to commit a felony, or of aiding him in committing it. Comm. b. Barnes, 132 242. 484. An indictment for a conspiracy to re- move goods of one of the defendants from his house, to enable him to defraud an insurance company, by causing the house to be burned, etc., is defective, if it does not allege that the defendants knew that the goods were insured, or that the former defendant owned them, or intended to commit the felony, or that the others knew of such intent. Comm. b. Barnes, 132 242. 485. In an indictment for a conspiracy to accuse one of a crime, it is not necessary to allege that the defendants procured, or intended to procure, any legal process. Comm. v. Tibbetts, 2 536. 486. An indictment for a conspiracy may properly allege an intent to cheat and defraud the public generally. Comm. b. Judd, 2 329, Comm. v, Harley, (7 Met.) 48 506. 487. An indictment for a conspiracy to de> fraud the public, by an imitation of an article of merchandise, is good, without alleging an in- tent to affirm that the article was genuine, or that the imitation was not as useful as the gen- uine article, or an intent to sell the imitation within this Commonwealth Comm. « Judd, 2 329 488 An indictment for a conspiracy to com- pass an unlawful object, must set forth the ob- ject fully and clearly, and an indictment for a conspiracy to compass a lawful object by un- lawful means, must set forth in like manner the means to be used. Comm b Hunt, (4 Met.) 45 111. Comm b. O'Brien, (12 C.) 66 84; Comm. i) Prius, (9 G.) 75 127, Comm. v. Wal- lace, (16 G ) 82 221. 489 If the indictment does not allege facts sufficient to constitute the offence, it is not aided by matter, which precedes or follows the direct averments; nor by qualifying epithets, such as "unlawful," "deceitful," "pernicious," etc. Comm. b. Hunt, (4 Met.) 45 111. 490. An indictment for a conspiracy to de- fraud one of his property by false and fraudu- lent pretences, need not set out any overt acts, 736 INDICTMENT, ETC., VIII, (20-26). or any actual injury to the person to be de- frauded, or any specific denial of the truth of the fraudulent pretences: the general averment that they were false and fraudulent suffices. Comm. v. Fuller, 132 563. See, also, Comm. «. Eastman, (1 C.) 55 189- Comm. v. Shedd, (7 C.) 61 514; Comm. v. Wallace, (16 G.) 82 221; Comm. ». Walker, 108 309; Comm. *. Water- man, 122 43. 491. But the words "cheat and defraud" do not suffice; the indictment must show the fraud was such, that if perpetrated it would constitute a criminal offence. Comm. v. Eastman, (1 C.) 55 189; Comm. v. Shedd, (7 C.) 61 514; Comm. v. Prius, (9 G.) 75 127; Comm. ®. Wal- lace, (16 G.) 82 221. 492. An indictment for conspiracy is not bad, because it sets forth an executed conspiracy to commit a felony. Comm. ■». O'Brien, (12 C.) 66 84 493. Or, generally, that the object of the con- spiracy has been accomplished; and if such an allegation is made, it need not be proved. Comm. v. Judd, 2 329; Comm. i>. Tibbetts, 2 536; Comm. ■». Warren, 6 72; Comm. «. Davis, 9 415; Comm. v. Hunt, (4 Met.) 45 111; Comm. v. East- man, (1 C.) 55 189; Comm. ■». Shedd, (7 C.) 61 514; Comm. i>. O'Brien, (12 C.) 66 84. 494. An indictment against partners for a con- spiracy to procure an over-insurance upon their stock, with intent to cheat the insurers, "by means of false pretences of a loss thereafter- wards to happen," does not sufficiently set forth the means. • Comm. it. Prius, (9 G.) 75 127. 495. As to the form and sufficiency of indict- ments for conspiracy, see: To prevent a journeyman mechanic from fol- lowing his trade, by refusing to work for a master, employing any journeyman not a mem- ber of a certain society. Comm. v. Hunt, (4 Met.) 45 111. To cheat and defraud one of his goods, under pretence of buying them. Comm. -». Eastman, (1 C.) 55 189. Falsely to accuse one of a crime. Comm. v. O'Brien, (12 C.) 66 84; Comm. v. Nichols, 134 531. To cause it falsely to appear of record, that two persons were married, thereby preventing one of them from contracting a marriage with a third person. , Comm. v. Waterman, 122 43. (21.) Corporation. [See, ante, 8 345: post, VIII, (55) ; Till, (60) ; also, Carrier, IV, (2).] (32.) Counterfeiting. [See, poet, VIII, (35).] (23.) Cruelty to animals. {See, also, Animal, 1V.1 496. An averment in an indictment or com- plaint, that the defendant " did cruelly beat a certain horse," sufficiently describes the offence, and the horse. Comm. v. McClellan, 101 34. See, also, Comm. v. Lufkin, (7 A.) 89 579: Comm. -i>. Whitman, 118 458. 497. So that he did "cruelly over drive a certain horse." Comm. i>. Flannigan, 137 560. 498. So of an ayernment that the defendant, having the charge and custody of a dog, know- ingly and wilfully authorized and permitted him to be subjected to unnecessary torture, etc., by " suffering, and permitting said dog to be bitten, etc., by a certain other dog." Comm. v. Thornton, 113 457. 499. In a complaint, under the statute, an averment of the ownership of the animal is un- necessary, and such an averment, or an aver- ment that the defendant had charge or custody of the animal, may be rejected as surplusage. Comm. v. Whitman, 118 458. (24.) Dangerous weapon. [See, also, Dangerous Weapon.] 500. A complaint, under G. S., Ch. 164, § 10; P. S., Ch. 206, § 10, for being armed with a dangerous weapon, when arrested by an officer, must show that the arrest was lawful, and that the officer was authorized to make it. Comm. v. O'Connor, (7 A.) 89 583; Comm. ■». Doherty, 103 443. C25.) Disturbance of meeting. [See, also. Disturbance or Meeting.] 501. It was held, under St. 1791, Ch. 58, that a charge of behaving rudely and indecently in a house of public worship, and of interrupting and disturbing public worship, could not be joined in one count of an indictment, as differ- ent fines werfe to be imposed for those different offences. Comm. v. Symonds,. 2 163. (26.) Dog, unlicensed. [See, also, Animal, II.] 502. An averment in a complaint, under St. 1859, Ch. 225, § 9, that the defendant, on, etc., at, etc., " did keep a certain dog, without said dog being then and there licensed according to law," is sufficient, without averring that he was not registered, etc., and was not licensed in any other town. Comm. v. Thompson, (2 A.) 84 507. INDICTMENT, ETC., VIII, (27), (28), (29), (30), (31). 737 (27.) Drunkenness. [See, also, Drunkenness, and post, VIII, (47); VIII,(H)'] 503 The offence of feeing a common drunkard mavlie charged in the general language of the statute: and' 2 the charge is amplified by words, which alone would be insufficient to make out the offence, they may be rejected as surplusage. Coram. 1>. Boon, (2 G.) 68 74; Comm. v Ashley, (2 G.) 68 356; Comm. v. Whitney, (5 GO 71 85. 504. But where the allegation falls short of showing that the offence was committed; but the complaint proceeds, "and so, on, etc., was a common drunkard," the latter charge is made argumentatively merely, and the complaint is insufficient. Comm. n. Whitney, (5 G.) 71 85. 505. A complaint, charging the defendant with being a common drunkard, need not con- clude, ad commune nocumentwm. Comm. v. Boon, (2 G.) 68 74. 506. Where the complaint charges that on a specified day, the defendant "was, and is, a common drunkard, having been at divers days and times since that day, drunk," etc., the ■evi- dence must be confined to acts done on that day. Comm. e. Foley, 99 499. 507. As to the sufficiency of a complaint for a second drunkenness, under R. S., Ch. 130, §18, see Comm. v. Miller, (8 G.) 74 484. 508. Under G. S., Ch. 165, § 25, an allega- tion that the defendant "was guilty of the crime of drunkenness by the voluntary use of intoxicating liquor," was sufficient. Comm. v. McNamara, 116 340. (28.) Elections and electors. [See Elections and Electors,!, (2); and ante, art> (29.) Embezzlement. [See, also, Embezzlement; Larceny; ante, III, (3)i m&post, VIII, (48).] 509. No greater particularity in the descrip- tion of the property is required, in an indict- ment for embezzlement, than in an indictment lor larceny. Coram, d. Pratt, 137 98. See, also, Comm. v. Concannon, (5 A.) 87 502; Comm. «. Butterick, 100 1. 9no 10 B -,V n ! ier G - 8 - Ch - 161. §42; P. S., Ch. *»», & 44, it is sufficient to allege the embezzle- ™™ °? m °ney to a certain amount, without specifying the particulars of such embezzlement. Comm. ®. Bennett, 118 443; Comm. v. Pratt, 137 98. 1M 1 v S, Ut ln an m dictment under G. 8., Ch. «£." •? aUe g ati OD. of a count leaves it un- certain whether it is framed under § 38 or § 39, Vol. 1—93' — that count is bad, and will be quashed on motion. Comm. ii. Pratt, 137 98. 512. An indictment for larceny by embezzle- ment, must allege that the defendant "feloni- ously did steal, take, and carry away," the prop- erty. Comm. ■». Pratt, 137 98. 513. An indictment for embezzlement must allege matter sufficient to apprise the defendant that he is charged with that particular crime. Comm. ». Simpson, (9 Met.) 50 138. 514. An indictment under G. S., Ch. 161, § 38; P. S., Ch. 203, § 40, charging the defend- ant with being the clerk, servant, and agent of A, B, & C, sufficiently negatives the fact that he was their apprentice; and an averment that the property embezzled was their property, sufficiently negatives their consent. Comm. v. Smith, 116 40. 515. Sufficiency of an indictment under § 35 of the G. S., § 37 of the P. S., for embezzling a bank book. Comm. v. Doherty, 127 20. 516. An indictment is fatally defective, which omits to aver sufficiently the purpose for which the defendant was intrusted with the property, or what property he fraudulently converted to his own use. Comm. ■». Smart, (6 G.) 72 15, 517. As to the sufficiency of such an aver- ment, see Comm. •». Butterick, lOO 1; Comm. «. Hussey, 111 432. 518. An indictment, charging a member of a voluntary association, with embezzlement of money received by him, to be paid to the asso- ciation, is not sustained by proof of a specific trust to pay it to the treasurer of the associa- tion. Comm. v. O'Keefe, 121 59. (30.) Escape. [See, also, Escape ; Impounding.] 519. An indictment, alleging the arrest of A for drunkenness, by a constable named, and that the defendant did "unlawfully aid and assist the said A" in unlawfully escaping from the constable's custody, is sufficient, without giving further particulars of the defendant's acts. Comm. ■». Filburn, 119 297. (31.) Extortion. [See, also. Extortion, and ante, VIII, (30).] 520. An indictment for attempting to extort money, by threatening to accuse one of a crime, need not set forth the precise words of the threat, if the substance thereof is sufficiently stated. Comm. ■». Philpot, 130 59. See, also, Comm. v. Dorus, 108 488; Comm. v Moulton, 108 307; Comm. b. Good, win, 122 19. 738 INDICTMENT, ETC., VIII, (31), (32), (33), (34), (35). 521. An averment of 'an intent, "by such threat," to extort money, sufficiently Were an intent to extort, by the specific threat set forth. Comm. v. Dorus, 108 488. 522. It is not necessary to set forth the crime, of which the defendant threatened to accuse the other, with technical accuracy. Comm. v. Murphy, (12 A.) 94 449. 523. The indictment is bad, if it contains no averment that the threat was made, either verb- ally, or by written or printed communication. Robinson v. Comm., 101 27. 524. An averment of a threat, "with a, view and with the intent to extort money," from the person threatened, sufficiently avers the intent. Comm. v. Moulton, 108 307. (33.) False personation. [See, also, False Personation, etc.] 525. An indictment following the words of the statute, is not sufficient, without a further averment that the personation was of an officer of this Commonwealth. Comm. v. Wolcott, (10 C.) 64 61. (33.) False pretences. [See, also. False Pretences; ante. III, (1): and ante, VlII, (20).] 526. An indictment for obtaining money or property by false pretences, must aver distinctly: (1) an actual payment of money, or delivery of property between the parties; (2) that it was the defendant's purpose, in making the false pretences, to effect such a transaction; and (3) that the other party was actually deceived by the false pretences. Comm. v. Howe, 132 250. See, also, Comm. «. Strain, (10 Met.) 51 521; Comm. v. Lannan, (1 A.) 83 590; Comm. i>. Goddard, (4 A.) 86 312; Comm. v. Dean, 110 64. But see, Comm. «. Hulbert, (12 Met.) 53 446. 527. An allegation that the defendant " did receive and obtain goods of said B, from said B., by means," etc., sufficiently avers that they were designedly obtained. Comm. v. Hooper, 104 549. 528. It is.no objection to an indictment that it charges that the defendant obtained goods by false pretences made by him "in his capacity as merchandise broker." Comm. v. Jeffries, (7 A.) 89 548. 529. An averment that money, to a certain amount, was obtained, is good, without giving further particulars thereof. Comm. ■». Lincoln, (11 A.) 93 233 530. " A check and order for the payment of money," is also a sufficient allegation. Comm. v. Coe, 115 481. 531. That the defendant "obtained money as a loan, with the intent to cheat and defraud," Is a sufficient allegation. Comm. v. Coe, 115 481. 532. Where the indictment alleges as the false token, a certificate of stock, and that it was "false, forged, counterfeit, and of no value," proof that it was a genuine certificate for one share raised to 100, is no variance. Comm. v. Coe, 115 481. 533. An allegation that the false certificate "was of the tenor following," refers to the time of the transaction, and it is not necessary that the indorsement of the certificate should be set forth. Comm. v. Coe, 115 481. 534. The fact that the certificate was made out in the name of the person defrauded, is no reason for quashing an indictment. Comm. v. Coe, 115 481. 535. It is not necessary to set forth in what manner the certificate could be used to deceive. Comm. v. Coe, 115 481. 536. It is not necessary to set forth that the defendant gave his note for the money obtained by the false pretences, and proof of that fact does not establish a variance. Comm. v. Coe, 115 481. 537. It is no objection to an indictment, un- der G-. S., Ch. 161, § 54; P. S., Ch. 203, § 59, charging the defendant with having induced A to execute a lease to B, by false representations as to B's property, etc., that it is not alleged that the representations were in writing. Comm. ■». Stevenson, 127 446. 538. An allegation, in such an indictment, that the defendant represented that he had in his possession a check drawn by him in favor of A, with which he intended to pay certain debts of A, does not set out a false pretence within the statute. Comm. «. Stevenson, 127 446. 539. It is no ground for quashing such an in- dictment, that a pretence is not properly charged therein, if other pretences are properly charged. Comm. ». Stevenson, 127 44$. See, also, Comm. ». Parmenter, 121 354. 540. Nor is it a ground for arresting judg- ment, that one of the pretences is not property negatived, if others are so. Comm. v. Morrill, (8 C.) 62 571. 541. For rulings that the indictment, in each of the following cases, sufficiently set forth an offence, within the statute, see Comm. i). Devlin, 141 423; Comm. «. Blood, , 141 571. (34.) Forcible entry and detainer. [See Forcible Entry and Detainer.] (35.) Forgery; counterfeiting. [See, also, Forgery; and, ante, IV, (3); IV, (4).] 542. An indictment for having in one's pos- session counterfeit coin, with intent to pass it as true, must state the denomination, or name of the coin, as "a dollar," or the like, but any further description is not necessary. Comm. v. Stearns, (10 Met.) 51 256. INDICTMENT, ETC., VIII, (35). 739 543. An indictment for forging, or having in one's possession a forged or counterfeit note, or other paper representing value, is sustained by- proof of a genuine paper, which has been altered by raising its value. 1 Comm. «. Woods, (10 G.) 76 477; Comm. fl. Boutwell, 129 134. [See, also, Comm. v. Coe, 115 481; aide, arts. 533 544. It is not necessary, in an indictment for forging a bond to dissolve an attachment, to set • forth how the bond could have been used to defraud. Comm. «. Costello, 120 358. 545. An indictment for forging, or for utter- ing a forged instrument, must set forth the instrument forged, according to the tenor thereof, that the court may see whether it is one of those instruments, the forging or utter- ing of which is a crime; except where a suf- ficient reason for not doing so is stated in the indictment. Comm. v. Houghton, 8 107; Comm. q. Wright, (1 C.) 55 46. See, however, Comm. v. Ross, 2 373; Comm. «. Par- menter, (5 P.) 22 279. 546. BemMe, that if an indictment for forging a bondj alleges that it is dated on a certain day, and that date is in the penal part, but another date is in the condition, the former prevails. Comm. v. Hearsey, 1 143. 547. An indictment for uttering, as true, a forged indorsement of a promissory note, which sets out the note and indorsement, need not de- scribe it as an instrument for the payment of money. Comm. v. Castles, (9 G.) 75 123. 548. An indictment for forging a promissory note, payable to the order of A, must set out the indorsement. Comm. «. Dallinger, 118 439. 549. Where the signature and indorsement are forged, and the allegation is that the de- fendant forged the indorsement, it may be sus- tained, although the instrument became a pro- missory note only by means of the indorsement. Comm. v. Dallinger, 118 439. 550. In an indictment for forging a discharge or acquittance, under St. 1804, Ch. 120, § 1, it wasnot necessary to allege that goods were deliv- ered, of which the forged paper purported to be an acquittance. Comm. ». Ladd, 15 526. 551. An indictment for uttering, as true, a wrged security, need not aver the name of the person to whom it was uttered, nor, since the defra'dd l4 Dame the pers011 tended to be Comm. v. Butterick, 100 12. W 2 j ^ n aYerm ™t that an instrument was flS M sat J sfied b 7 Proof that a material part uiereot was forged. Comm. «. Butterick, 100 12. thft ** t0 the sufficiency of an averment that itwP ry J ex l sted ' when the instrument was Ml of ' ex" h an averment of acceptance of a Comm. «.' Butterick, 100 12. 554. An order for money, drawn by a person upon himself, and accepted and indorsed by him, may be properly described as a bill of ex- change. Comm. v. Butterick, 100 12. 555. An averment of the forgery of an in- dorsement to a promissory note, must show that the forged words bore such a relation to the note, as to be the subject of forgery, although it is also averred that the note is lost. Comm. «. Spilman, 124 327. 556. At common law, an indictment for forg- ing an instrument which, upon its face, appears not to be adapted for the purpose of fraud, must set forth such extrinsic matter as shows that it is so adapted. Comm. •». Hinds, 101 209. 557. An indictment for uttering a forged bank bill, must allege that the bank was incorporated, and in what state. Comm. ■». Simonds, (11 G.) 77 306. 558. Aliter, under St. 1804, Ch. 120. Comm. •». Carey, (2 P.) 19 47. 559. An indictment under G. S., Ch. 162, § 2; P. S., Ch. 204, § 2, for uttering a forged and counterfeit promissory note, is not sup- ported by proof of uttering a counterfeit bill upon an incorporated banking company, estab- lished in the Commonwealth; for that is made a distinct offence by § 6. Comm. v. Dole, (2 A.) 84 165. 560. But, except in such a case, a bank bill may be described in an indictment as a promis- sory note. Comm. v. Carey, (2 P.) 19 47; East- man 1). Comm., (4 G.) 70 416; Comm. ». Woods, (10 G.) 76 477; Comm. v. Thomas, (10 G.) 76 483; Comm. v. Paulus, (11 G.) 77 305; Comm. ■». Si- monds, (14 G.) SO 59. 561. To an indictment under St. 1804, Ch. 120, for having, in the defendant's possession, ten or more counterfeit bank bills, with intent to utter them, it is no objection that it is alleged of them collectively, that they purported to be bills of such a bank; that they were payable to the bearers thereof; that they are described as promissory notes or bank bills; or that it is not alleged that the defendant had knowledge of the false making, etc. Brown v. Comm., 8 59; Comm. v. Houghton, 8 107. 562. An averment that the defendant had them in possession " on the same day," does not suffice; it should be " at the same time." Edwards ». Comm., (19 P.) 36 124. 563. Where the indictmont alleges that they are similar bills, it is no objection that they bear different dates. Comm. v. Whitmarsh, (4 P.) 21 233. 564. Under the statute of 1804, it was not necessary to aver an intent to pass them in this Commonwealth. Comm. v. Cone, 2 132. See, also, Comm. v. Dana, (2 Met.) 43 329. 565. Nor to add the words " as true," after the averment of an intent to pass them. Hopkins o. Comm., (3 Met.) 44 460. 740 INDICTMENT, ETC., VIII, (35-42). 566. Knowingly having in possession and uttering five counterfeit notes, may be charged as one offence in one count, under the existing statute. Coram, v. Thomas, (10 G.) 76 483. 567. It is no ground of objection to an in- dictment charging such an offence, that the last of the five described notes is alleged to be different from the others, while in its recitals it corresponds with two of those previously de- scribed. Comm. ■». Thomas, (10 G ) 76 483. 568. Or that the bills set forth are those of a bank in another state. Comm. v. Thomas, (10 G.) 76 483. 569. An indictment for having a counterfeit bill at Boston, with intent " then and there " to pass the same, is supported by proof of an intent to pass it in another state. Comm. v Price, (10 G.) 76 472. 570. A written instrument, headed with the name of a certain bank, and a certain sum in figures, requesting payment of that sum to the order of A, purporting to be signed " T. M. C, Cashier," and addressed to another bank, is properly described in an indictment for forgery, which sets it forth according to its tenor, as an " order for money." Comm. v. Parsons, 138 189 (36.) Game, unlawful, LSee,ante,VIII,(5).] (37,) Gaming, [See, also. Betting, etc., and post, VTTI, (61).] 571. An indictment, charging the defendant with keeping a tenement "used" for illegal gaming, does not charge an offence at common law, or under the statute. Comm. ». Stahl, (7 A.) 89 304. 572. An indictment under the statute need not specify the kind of illegal gaming. Comm. «. Edds, (14 G.) 80 406 (38.) Highway. [See Highway, V, (3); V, (4); and ante, arts. 167 to 170.1 (39.) Homicide. [See, also, Homicide. As to the mode of describing the wound, or other means of death, see. ante, III, 573. An indictment alleging murder, in the same form as at common law, is good under the statute as an indictment for murder in the first degree, and warrants a sentence of death. Comm. ii. Desmarteau, (16 G.) 82 1; Green v. Comm., (13 A.) 94 155. ' 574. It is not neeessary to aver that the pre- liminary assault was made with malice afore- thought. Comm. v. Chapman, (11 C.) 65 433. 675. Or that the deceased was in the peace of the Commonwealth, or that the defendant was seduced, etc., by the devil. Comm. v. Murphy, (11 C.) 65 472. 576. Or, where the mnrder was by poison, that it was administered with intent to kill, if the other allegations are sufficient. Comm. v. Hersey, (2 A.) 84 173. 577. Or that the deceased was an officer, ex- ecuting his office; that fact may be proved to show malice. Comm. «. Drew, 4 391. 578. Or, where time and place have been once sufficiently alleged, that the defendant did "then and there" strike and give a mortal blow. Comm. ■». Barker, (12 C.) 66 186. 579. It is essential that the indictment should use the words "malice aforethought," and " kill and murder." Comm. -o. Davis, (11 P.) 28 432. 580. It is sufficient to allege that the death was caused by a series of beatings, adminis- tered on different days and months. Comm. ». Stafford. (12 C.) 66 619. . 581. So in a case of poisoning or starvation. Comm. ■». Stafford, (13 C.) 66 619. 582. Acts which hastened the death of a per. son, suffering with a disease, which would soon have caused death, may be set forth as the sole cause of death, without specifying the disease. Comm. c. Pox, (7 G.) 73 585. 583. An allegation that the death was caused by wounding, .starvation, and exposure, is suffi- cient, withoui alleging that they were mortal; and it is not ba;l for duplicity. Proof of death by either mcanj variants a conviction. Comm. v. Macloon, lOl 1. 584 If an indictment for manslaughter alleges that the killing was wilful, it is not necessary to prove that averment. Comm. •». Woodward, 102 155. 585. An indictment for manslaughter by causing the clothes of the person killed tobe- saturated with kerosene, need not allege that the defendant knew of the deadly or dangerous tendency of the kerosene. Comm. v. Pierce, 138 163. (40.) Horse railroad, obstructing. [See, porf, VIII, (68).] 41.) House of 111 fame; house of pros* titutlou. [See, ante, VIII, (10).] (43.) Illegal voting. [See Elections and Electors, I, (2).] INDICTMENT, ETC., VIII, (43), (44), (45), (46); (47), (A). ?41 i (43.) Indecent exposure, [See Lewdness; ante, art, 800 ; and, post, VIII, (49).] ' (44.) Innkeeper. I See Inn; and ante, arts. 163 to 165; also post, vin,(4T); vni, (6«.i (46,) Insurance company, defrauding. LSee, ante, VIII, (7) , VIII, (20).] (46,) Intimidation, |See, also, anfe, VIII, (20).] 586. An indictment under St. 1875, Ch. 211, 62; P. S., Ch. 74, § 2, alleging that the de- fendant, "by force and arms, did seek to pre- vent one A from continuing in the employment of" a certain corporation, is sufficient; and the further allegation that he did " unlawfully and wilfully intimidate, and seek to intimidate," the said A, may be rejected as surplusage. Comm. 0. Dyer, 128 70. (47.) Intoxicating liquors. [Si w See, also, Intoxicating Liquors; Nuisance; ff^VIII, (61); and various cases under ante, II; III; (A.) Indictment. 587. An indictmont under St. 1875, Ch. 99; P. S.,Ch.lOO, charging the defendant, in one count, with "keeping an open bar," and in another count, with keeping " a public bar for the sale of spirituous and intoxicating iiquors," but not alleging that he unlawfully sold, or kept or exposed for sale intoxicating liquors, sets forth no offence. Comm. v. Hickey, 126 250, 588. In an indictment for unlawfully selling or manufacturing intoxicating liquors, it is not necessary to set forth the quantity, or the par- ticular kind, and if either is set forth, the aver- ment need not be proved exactly as laid. Comm v. Odlin. (23 P.) 40 275- Comm. v. Thurlow, (24 P ) 41 374- Goodhue v. Comm., (5 Met.) 46 553- Comm. v. Buck, (12 Met.) 53 524; Comm. 0. Timothy, (8 G.) 74 480; Comm. 0. Dillane, (11 G.) 77 67; Comm. •». Clark, (14 G.) 80 367. ( 589 But an allegation of sale, etc., of ^Kuu 3 or intoxicating liquors," is bad for Comm. „. Grey, (2 G.) 68 501. See, also, Comm. Burns, (9 G.) 75 287. lim!!L Wl l e . r t thestatute declares that certain Hi*™ not > k fact - intoxicating, snail be considered intoxicating within the fidratin 11 ment ma, y descriD e them as (W^ *; Tim °thy, (8 G.) 74 480; tomm. 0. Anthes, (12 G.) 78 29. 591. An allegation that the defendant sold liquor, is supported by a sale of it mixed with water and sugar. Comm. 0. White, (10 Met.) 51 14. _ 592. An allegation that the defendent sold intoxicating liquors, and mixed liquors, part of which was intoxicating, is supported by proof of a sale of intoxicating liquors, and none of mixed. Comm. ». Burns, (9 G.) 75 287- Comm. i). Leonard, (11 G.) 77 458. 593. The allegation of time, in an indictment for a single sale, need not be proved as laid. Comm. «. Kelly, (10 C.) 64 69; Comm. v. Dillane, (11 G.) 77 67- Comm. v. Leo, (12 G.) 78 33; Comm.' 0. Carroll, (15 G.) 81 409; Comm. ■». Maloney, (16 G.) 82 20. (See, also, ante, III, (1).] 594. An indictment for an unlawful sale must name the person to whom the sale was made, or state that he is to the jurors unknown. Comm. v. Thurlow, (24 P.) 41 374; Comm. ». Kimball, (7 Met.) 48 304. [See, also, ante. III, (2).l 595. An allegation of a sale to George E. Allen, is not sustained by proof of a sale to George Allen, without evidence that he is the same person. Comm. 0. Shearman, (11 C.) 65 546. See, also, Comm. v. Gormley, 133 580. 596. If two or more are joined in one indict- ment, one may be convicted, and the other acquitted. Comm. 0. Tower, (8 Met.) 49 527; Comm. «. Griffin, (3 C) 57 523; Comm. 0. Sloan, (4 C ) 58 52; Comm. 0. Brown, (12 G.) 78 135. [See also, ante, IV, (8).] 597. Husband and wife may be jointly indicted and convicted. Comm. 0. Tryon, 99 442. 598. For various rulings, under the former statute, relating to a " common retailer," or " common seller," of intoxicating liquors; to an innnolder or common victualler, with authority to sell intoxicating liquors; and to sales in a quantity less than 28 gallons, see; Indictment generally. Comm. 0. Jordan, (18 P.) 35 228; Comm. 0. Stowell, (9 Met.) 50 569; Comm. v. Bryden, (9 Met.) 50 137. Allegations as to the quantity sold being less than 28 gallons. Comm. 0. Eaton, (9 P.) 26 165; Comm. 0. Pearson, (23 P.) 40 280, note; Comm. v. Odlin, (23 P.) 40 275, Comm. 0. Thurlow, (24 P.) 41 374; Comm. 0. Churchill, (2 Met.) 43 118; Goodhue 0. Comm., (5 Met.) 46 553; Comm. 0. Brown, (12 Met.) 53 522; Comm. 0. Roberts, (1 C.) 55 505. That the indictment might well charge the offence of being a common seller, as having been committed on a particular day, with a contirmando. Comm. 0. Pray, (13 P.) 30 359; Comm. v. Tower, (8 Met.) 49 527, Comm. 1i2 INDICTMENT, ETC., VIII, (47), (A), (B). v. Kendall, (12 C.) 66 414; Comm. «. Elwell, (1 G.) 67 463; Comm. «. Arm- strong, (7 G.) 73 49; Comm. v. Gardner, (7 G.) 73 494; Comm. v. Snow, (14 G.) 80 20; Comm. v. Langley, (14 G.) 80 21; Comm. v. Kingman, (14 G.) 80 85. An indictment for being a common seller, at a place and during a time specified, in the general words of the statute, was sufficient; and allegations as to particular sales, were sur- plusage. Comm. ». Pray, (13 P.) 30 359; Comm. v. Odlin, (23 P.) 40 275; Comm. ■v. Hart, (11 C.) 65 130; Comm. «. Wood, (4 G.) 70 11. It was not necessary in sucli an indictment to use the words "common seller," if sufficient facts were set forth. Comm. v. Leonard, (8 Met.) 49 529; Comm. «. Stowell, (9 Met.) 50 569. Nor to allege that the defendant was an inn- holder or Common victualler. Comm. v. Pearson, (3 Met.) 44 449. Nor that it was found, upon the application of a particular officer, or was prosecuted for the benefit of any town. Comm. «. Baker, (2 G.) 68 78. See, also, Taunton «. Sproat, (2 G.) 68 428. Nor where the penalty was to go. Comm. v. Tuttle, (12 C.) 66 502; Comm. v. Burding, (12 C.) 66 506. Nor that the liquor was sold in the Common- wealth, if the town was stated. Comm. v. Jones, (7 G.) 73 415. Nor that it was sold in the defendant's dwell- ing, or other building. Comm. ■». Stowell, (9 Met.) 50 569. If the allegation was that the defendant was not licensed as an innholder, whereas the proof was that he was licensed as a taverner, with authority to sell wine, but not liquor, the vari- ance was fatal. Comm. v. Thayer, (5 Met.) 46 246. But a general averment that he was a com- mon seller, without being authorized or ap- pointed thereto, sufficed as to that point. Comm. v. Tower, (8 Met.) 49 527; Comm. ». Hart, (11 C.) 65 130; Comm. ■o. Wilson, (11 C.) 65 412; Comm. o. Murphv, (2 G.) 68 510; Comm. v. Hoye, (11 G.) 77 462; Comm. v. Boyle, (14 G.) 80 3. So that he sold in quantities less than 28 gallons, without being licensed. Comm. v. Sloan, (4 C.) 58 52. It was not necessary to negative the proviso, as to cider, or a sale for the Lord's supper. Comm. v. Hart, (11 C.) 65 130; Comm. v. Edwards, (12 C.) 66 187. 599. It was not necessary, in an indictment under St. 1855, Ch. 215, §§ 15, 17, as to manu- facturing intoxicating liquor, to allege that it was manufactured for sale within this Com- monwealth, or with that intent. Comm. ■». Clark, (14 G.) 80 367. 600. In an indictment under that statute for selling, it was not necessary to aver whether the sale was made from a dwelling house or a tavern, etc., although § 34 prescribed different rules of evidence in the two cases. Comm. v. Clapp, (5 G.) 71 97. 601. In an indictment for selling liquors, to be used on the premises, it was not necessary to aver that the defendant was not licensed under St. 1850, Ch. 232, to sell liquors for mechanical and medical purposes. Comm. v. Shaw, (5 C.) 59 522 (B.) Complaint 602. A complaint which charges a sale con- trary to "the statute, in such case made and provided," need not allege what statute was violated. Comm. ■». Keefe, (7 G.) 73 332. 603. Where liquor and another article are sold together, it is sufficient to allege the sale of the liquor. Comm. v. Thayer, (8 Met.) 49 525. 604. Under St. 1875, Ch. 99; Pub. St., Ch. 100, exposing and keeping for sale spirituous and intoxicating liquors, constitutes but one offence, and a complaint charging both is good, and is supported by proof of either. Comm. v. Curran, 119 206; Comm.' v. Dolan, 121 374. See, also, Comm. v. Wilcox, (1 C.) 55 503. 605. A complaint, alleging that A kept cer- tain intoxicating liquors in his express office in S., "which said liquors were brought into said town of S. by said A, in violation of" P. S., Ch. 100, § 17, is uncertain and insufficient. Comm. «. Intox. Liq., 138 506. 606. A complaint, charging an unlawful sale on the Lord's day, "not having then or there any license, authority, etc., to make such sale," is supported by proof that the defendant was the barkeeper of the licensee, and was not authorized to make such sale, and is good, although not sufficient for violation either of the Lord's day act, or the provisions of the license. Comm. v. Hoyer, 125 209. 607. And a general averment that the de- fendant had no authority, etc., to sell, is suffi- cient in all cases. Comm. v. Lafontaine, (3 G.) 69 479; Comm. v. McSherry, (3 G.) 69 481, note; Comm. «. Clapp, (5 G.) 7l 97; Comm. v. Conant, (6 G.) 72 482; Comm. v. Keefe, (7 G.) 73 332; Comm. v. Roland, (12 G.) 78 132; Comm. v. Kingman, (14 G.) 80 85; Comm. «. Clark, (14 G.) 80 367; Comm. v. Dunn, (14 G.) 80 401; Comm. v. Intox. Liquors, (4 A.) 86 593; Comm. ». Chisholm, 103 213; Comm. ■». Lynn, 107 214; Comm. v. Intox. Liquors, 110 182; Comm. «. Intox. Liquors, 110 416; Comm. v. Fredericks, 119 199; Comm. ■». Burke, 121 39; Comm. e. Hanley, 121 377; Comm. ■». Davis, 121 352; Comm. v. O'Keefe, 123 252; Comm. v. Sprague, 128 75; Comm. v. McKiernan, 128 414. 608. It is not necessary that the complaint should negative the provisos or excepted cases in the statute. Comm. «. Hart, (11 C.) 65 139; Comm. INDICTMENT, ETC., VIII, (47), (B); (48). 743 Tuttte, (12 C.) 66 502; Comm. ». BnXg, (12 C.) 66 506; Comm.D.Ed- ST(fl C. 66 187; Comm v. pSflitflGO 77 78; Comm. *• Waters, (11 G) 77 81 > Comm. v. Chisholm, 103 213; Comm. 8. Grady, 108 412. (•09 As to the sufficiency of a complaint under St. 1849, Ch. 415, § 37, prohibiting con- veying to another liquor for an unlawful sale, Comm. v. Locke, 114 288. 610 It is sufficient to describe the liquor sold or manufactured as "intoxicating liquor," mtnout stating the kind or quantity. Comm. %. Conant, (6 G.) 72 482; Comm. ». Timothy, (8 G.) 74= 480; Comm. e. Ryan, (9 G.) 75 137; Comm. «. Clark, (14 6.) 80 367; Comm. ». Henderson, 140 303. 611. "Spiritous" for "spirituous" is not a fatal error. Comm. 8. Burke, (15 G.) 81 408. 612. For additional rulings as to the suffi- ciency of complaints, under statutes now super- seded by P. S., Ch. 100, and the statutes in- corporated therein, see Comm. «. Dean, (21 P.) 38 334; Comm. 8. Roberts, (1 C.) 55 503; Comm. v. Baker, (IOC.) 64 405; Comm. «, Moulton, (10 C.) 64 404; Comm. v, Edwards, (12 C.) 66 187; Comm. v. Adams, (1 G.) 67 481; Comm. o. Reily, (9 G.) 75 1; Comm. v. Gilland, (9 G.) 75 3; Comm. ». Purtle, (11 G.) 77 78; Comm. v. Davis, (11 G.) 77 457; Comm. v. Melling, (14 G.) 80 388; Comm. ■». Hutchinson, (6 A.) 88 595. 613. A complaint under P. S., Ch. 101, § 9, alleging that on, etc., at, etc., the defendant did "knowingly permit a certain tenement there situate, which was then and there under the control of " the defendant, "to be unlaw- fully used for the illegal sale and keeping of intoxicating liquors therein," is sufficient. Comm. v. Bartley, 138 181. 614. A charge of a sale to a person unknown "by" or "to" the complainant suffices, al- though the complainant might easily have ascertained his name. Comm. ». Hendrie, (2 G.) 68 503; Comm. 8. Blood, (4 G.) 70 31; Comm. 8. Hitchings, (5 G.) 71 482; Comm. v. Crawford, (9 G.) 75 129; Comm. v. Thornton, (14 G.) 80 41; Comm. v. Sherman, (13 A.) 95 248; Comm. v. Griffin, 105 175. 615. A complaint by J.,S. of a sale to "said J., sufficiently describes the person. Comm. 8. Melling, (14 G.) 80 388. 616. Where the forfeiture goes to the town, the complaint need not purport to be made by the town, and need not aver that the town has not sued for the penalty. Comm. 8. Murphy, (2 G.) 68 510; Comm. 8. Newell, (5 G.) 7 1 76. fl.^'11 ■*- com Pl a int for keeping a tenement for ™ illegal sale, etc., of intoxicating liquors, need not allege that they were spirituous. Batchelders. Comm., 109 361. See, also, Comm. v. Livermore, (4 G.) 70 18; Comm. 8. Timothy, (8 G.) 74 480; Comm. v. Ryan, (9 G.) 75 137. [For rulings as to complaints under the provisions relating to a search warrant and forfeiture, etc., see Intoxicating Liquors, VI, (2).] 618. A complaint alleging two different sales to different persons on different days, contains two counts, and is not bad for duplicity. Comm. 8. Dillane, (11 G.) 77 67. See, also, Comm. 8. Adams, (1 G.) 67 481; Comm. 8. Curran, 119 206; Comm. v. Dolan, 121 374. 619. If the complaint does not allege want of authority, etc., to sell, a license wSl be pre- sumed. Comm. 8. Lattinville, 120 385. 620. Under St. 1875, Ch. 99, § 1; P. S., Ch. 100, § 1, a complaint is sufficient which alleges that the defendant "unlawfully did expose, and keep for sale, intoxicating liquors, with intent unlawfully to sell the same within this Commonwealth. Comm. 8. Byrnes, 126 249. 621. Under St. 1869, Ch. 415, § 37, the offence consisted of receiving, for the purpose of conveying to a purchaser, liquor intended to be sold unlawfully; and, in a complaint there- under, it was not necessary to negative the pur chaser's authority to sell. Comm. 8. Locke, 114 288. (48.) Larceny, [See, also, Larceny; and ante, VIII, (29).] 622. The terms "taking," "carrying away," and "with intent to steal," are essential in an indictment for larceny; and, if any of them are omitted, the indictment is fatally defective. Comm. 8. Adams, (7 G.) 73 43; Comm. 8. Pratt, 132 246. See, also, Comm. ». James, (1 P.) 18 375. 623. Accordingly, judgment was arrested, upon an indictment against a thief and the re- ceiver of the stolen goods, where the word " away" was omitted in the charge against the thief, although the recital of his act in the charge against the receiver, contained that word. Comm. ■». Adams, (7 G.) 73 43. 624. A person, stealing, by one taking, of several articles belonging to different persons, may be indicted, either for one crime, or for several crimes. Comm. v. Sullivan, 104 552. 625. Distinct larcenies may be charged in different counts; and whether the Common- wealth must elect between them, rests entirely in the discretion of the presiding judge. Comm. 8. Sullivan, 104 552. 626. An indictment, alleging that the defend- ant did " embezzle, steal, and carry away" cer- tain goods, is not bad for duplicity: the word " embezzle " will be rejected as surplusage. Comm. 8. Simpson, (9 Met.) 50 138. 627. It is not necessary to prove the time, as allesred, in an indictment for larceny. Comm. 8. Sego, 125 210. Ite INDICTMENT, ETC., VIII, (49), (50), (51), (52). 628. An indictment, charging the larceny from the person, of " divers promissory notes," of an amount and value stated, meaning bank bills, and also of " divers coins of the United States, current as money in said Commonwealth," of an amount and value stated, with proper aver- ments of ownership, is sufficient. Comm. v. Collins, 138 483. [For numerous other rulings as to the sufficiency or the description of the property stolen, its owner- hip, and value, see, ante. III, (3); and III, (3).] (49.) Lewdness. [See, also. Lewdness; and ante, art. ZOO.] 629. An indictment for "open and gross lewdness, • and lascivious behaviour," is -sup- ported by proof of an intentional and indecent exposure of his person, by the defendant, to a girl eleven years old, in her mother's house. Comm. ■». "Wardell, 128 52. 630. A complaint for being a lewd, wanton, and lascivious person, in speech and behaviour, need not conclude ad commune nocumentwm. Comm. v. Parker, (4 A.) 86 313. See, also, Comm. v. Haynes, (2 G.) 68 72. 631. A complaint for being a lewd, wanton, and lascivious person, in speech and behaviour, which charges that the offence was committed on a certain day, with a continuando, does not set forth two offences, and is good. Comm. v. Parker ancl mav lDe taken upon the trial. Coram, v. Boston & M. Railroad, 133 (61.) Nuisance. rsee, also. Nuisance, T, (3); III; and ante, Tin, (5); VIII, (1U); VIII, (37); Tin, («).] (A.) In general. 688. It is necessary, in a complaint or an indictment for a nuisance, for an act not a nuisance per se, to allege it to have been to the great damage and common nuisance of all the citizens of the Commonwealth. Comm. v. Smith, (6 C.) 60 80. 689. Thus the uttering of loud cries in the public streets, if it is any offence, is a nuisance, and a complaint therefor must allege it to have been ad commune nocumentum. Comm. v. Smith, (6 C.) 60 80. 690. At common law, an indictment for a nuisance must always thus conclude. Comm. n. Boon, (2 G.) 68 74; Comm. v. Parker, (4 A.) 86 313; Comm. v. Sweeney, 131 579. 691. But semble, that where a statute ex- pressly declares an act to be a common nui- sance, and punishes it as such, it suffices to set forth the act itself. In such a case, the omis- sion of the allegation that it is a nuisance, if it constitutes any objection, is a formal one, and must be taken before the jury are impannelled. Comm. v, Lavonsair, 132 1; Comm. v. Goulding, 135 552. See, also, Comm. v Boon, (2 G.) 68 74; Wells i>. Comm., (12 G.) 78 326; Comm. ?>. Howe, (13 G.) 79 26. See, however, Comm. v. Davis, (11 G.) 77 48. 692. An indictment for collecting filth, and allowing it to remain in the highway, near the houses "of divers persons," to the great dam- age and common nuisance of such persons, and all others passing upon the highway, suffi- ciently charges a public nuisance. Comm. v. Sweeney, 131 579. 693. In an ind'ctment for a nuisance in the highway, it is unnecessary to allege the termini, or the length and breadth of the highway, or ot the nuisance. Comm. v. Hall, 15 240. J£n™5te n way nuisances, see ante, arts. 167 to 170; and Highway, T, (3); V, (4)Vl 694. A common law indictment for a nui- sance should set forth the nuisance precisely and accurately; it need not show what should be abated; and where it alleges a continuing offence, it is not bad for duplicity. Comm, i>. Rumford Chemical Works, (16 G.) 82 231. 695. A count for a common law nuisance may be joined with a count for a nuisance under the statute. Comm. v. Kimball, (7 G.) 73 328. 696. Or under two statutes. Comm. v. Welsh, (1 A.) 83 1. 697. And an indictment for a nuisance under the statute, by keeping a house of ill fame, may join also the common law offence of keep- ing a disorderly house Comm. v. Hart, (10 G.) 76 465. 698. For a ruling, sustaining the sufficiency of an indictment for a nuisance, by keeping swine near dwelling houses, streets, etc., see Comm. v. Perry, 139 198. (B.) Under the nuisance acts. [St. 1855, Ch. 405; (i. S., Ch. 87, §§ 6 to 9; St. 1866, Ch. 280, § 3; P. S., Ch. 101, §§ 6 to 9.] 699. An indictment, charging the keeping of a nuisance on a day named, with a continu- ando to the finding of the indictment, suffici- ently specifies the time,,and is supported by evidence of keeping it between the day named, and the day specified in the clerk's certificate, indorsed on the indictment. Comm. «. Langley, (14 G.) 80 21. 700. An indictment, charging the keeping of either of the nuisances specified in the statute, in a "tenement," "building," or the like, in a city *» town specified, sufficiently designates the place. Comm. ». Skelley, (10 G.) 76 464; Comm. v. Logan, (12 G.) 78 136; Comm. v. Donovan, (16 G.) 82 18; Comm. v. Welsh, (1 A.) 83 1; Comm. v. Gallagher, (1 A.) 83 592. 701. Where the indictment charges the keep- ing of a " building " as a nuisance, or the letting of a "building" for a prohibited purpose, it means an entire building ; and it is not sustained by proof with respect to one of several different tenements of the building. Comm. v. McCaughey, (9 G.) 75 296. 702. But when it alleges the facts with re- spect to a " tenement," it means a portion of the building, and is sustained by proof of thus using the whole, or a part. Comm. v. Godley, (11 G.) 77 454; Comm. ii. McArty, (11 G.) 77 456; Comm. ■». Hill, (14 G.) SO 24; Comm. 11. Donovan, (16 G.) 82 18; Comm. v. Welch, (2 A.) 84 510; Comm. v. Cogan, 107 212; Comm. «. Welsh, 110 359. 703 An indictment for letting " a tenement and building" for the prohibited purpose, has the same construction as if it charged the letting of the "building" only. Comm. ■». Bossidy, 112 277. 704. But where the defendant occupies the whole building, and uses part of it for the 748 INDICTMENT, ETC., VIII, (61), (B); (62-66). illegal purpose, the indictment rightly charges the keeping of the " building " as a nuisance. Comm. 0. Logan, (12 G.) 78 136; Comm. ». Shattuck, (14 G.) 80 23. 705. So where the offence is charged with re- spect to a "tenement," which consists of several rooms, one of whieh is used for the illegal pur- pose. Comm. v. Howe, (13 G.) 79 26. 706. And where two rooms of a tenement are interchangeably used for the illegal purpose, the charge of illegal use of a tenement is sus- tained, and proof as to such use of both is competent. Comm. v. Fraher, 126 56. 707. An indictment for keeping a tenement as a liquor nuisance, is not sustained by proof that the defendant kept a hotel, and that liquors were found concealed therein. Comm. 0. Welsh, 110 359. See, also, Comm. 0. Edds, (14 G.) 80 406. 708. An indictment for keeping a building for more than one of the purposes specified in the statute, is not bad for duplicity; and is sup- ported by proof that it was kept for either pur- pose. Comm. 0. Kimball, (7 G.) 73 338; Comm. 0. Kelley, (7 G.) 73 332, note; Comm. «. Edds, (14 G.) 80 406; Comm. 0. Ballou, 124 26. 709. So it may allege that the building was kept for either of the purposes specified. Comm. v. Edds, (14 G.) 80 406. 710. It is sufficient to allege in the indictment that the building, etc., was " used for the illegal sale and keeping of intoxicating liquors," with- out further particulars of the offence, or of the liquors, or of the defendant's want of authority, Comm. ». Kimball, (7 G.) 73 328; Comm. 0. Kelley, (7 G.) 73 332, note; Comm. 0. Kelly, (12 G.) 78 175; Comm. ®. Quinn, (12 G.) 78 178; Comm. 0. Edds, (14 G.) 80 406; Comm. 0. Daven- port, (2 A.) 84 299; Comm. 0. Hill, (4 A.) 86 589; Comm. Wright, (12 A.) 94 190; Comm. 0. Bennett, 108 27; Comm. 0. Conneally, 108 480; Batch- elder 0. Comm., 109 361; Comm. 0, Dunn, 111 425; Comm. 0. Shea, 115 102; Comm. 0. Byan, 136 436. 711. An indictment for keeping and main- taining a tenement used for the unlawful pur- pose is sufficient, without alleging by whom it was so used. Comm. 0. Sampson, 113 191. 712. An indictment for keeping a tenement, resorted to for illegal gaming, need not specify the kind of gaming. Comm. 0. Edds, (14 G.) 80 406. (62.) Obscene publication. [See, also, ante, art. 268 to 370.] 713. Qu., whether an indictment, averringthe printing and publication of obscene pictures, etc., "to wit, pictures, figures, and descriptions of naked girls," charges any offence under the statute. Comm. 0. Dejardin, 126 46. 714. If so, proof of pictures of girls, naked only to the waist, is a variance. Comm. 0. Dejardin, 126 46. (63.) Obstruction of horse and steam railroads. [See, also. Obstruction op Railroad, etc.] 715. In an indictment, under the statute, for obstructing a horse railroad, the words " wil- fully and maliciously " are sufficient to charge the intent. Comm. 0. Hicks, (7 A.) 89 573. 716. An indictment, charging that the defend- ant, on the 5th day of March, intending to ob- struct a certain railroad, did, "on the said 1st day of March," place a rail upon the track, is bad, as the intent is not connected with the act. Comm. 0. Bakeman, 105 53, (64.) Obstruction of justice. [See post, VIII, (84).] (65.) Officer, assault upon, [See, ante, VIII, <8).] (66.) Perjury, and subornation of per- jury. [See, also, Perjury.] 717. Statutory provisions as to the sufficiency of an indictment, for either offence; see L. 1860, Ch. 186; P. S., Ch. 205, §§ 5, 6. 718. An assignment in an indictment of the falseness of the defendant's sworn statements, in one particular, preceded by the words, "whereas, in truth and in fact, the said S did not," is a good assignment of perjury. Comm. 0. Sargent, 129 115. See, also, Comm. 0. Carel, 105 582; Comm. 0. Hatfield, 107 227; Comm. 0. Mc- Laughlin, 122 449. 719. Qu,., whether the other assignments of the falseness of his statements should have been each preceded by the same formal averment. Coinm. 0. Sargent, 129 115. See, also, Comm. 0. Johns, (6 G.) 72 274; Comm. v. McLaughlin, 122 449. 720. Whether particular allegations in an in- dictment, import that the oath was administered before signing, so that evidence that it was ad- ministered afterwards is a fatal variance, see Comm. 0. Sargent, 129 115. 721. Under the statute, if the indictment alleges, that on the 3d of January a complaint was made, and the person complained of was arrested, and an examination, upon which the perjury was committed, was had upon the com- plaint upon the said 3d of January; and the evidence proves a complaint on the 31st of INDICTMENT, ETC., VIII, (66), (67), (68), (69). T49 December, and an examination on the 3d of January, the variance is immaterial. Comm. i>. Soper, 133 393. See, also, as to variances under the statute, Comm. v. Hughes, (5 A.) 87 499; Comm. v. Hat- field, 107 227; Comm. v. Butland, 119 317. 722 Miter, before the statute. Comm. v. Monahan, (9 G.) 75 119. 723. In an allegation in an indictment, that the defendant swore falsely upon a trial before " a certain jury of the county," and continuing, "and so the jurors aforesaid do say" that he committed perjury, the words "the jurors aforesaid" refer to the grand jurors named in the commencement of the indictment. Comm. v. Kelly, 123 417. 724. Under the statute, it is not necessary to set forth the authority of the officer, before whom the perjury was committed. Comm. v. Hughes, (5 A.) 87 499. 725. As to the rule before the statute, see Comm. ii. Knight, 12 274. 726. Under the statute, it is not a sufficient objection to an indictment for perjury, upon an examination before a commissioner authorized to take bail, that it does not allege whether the person was committed with or without an order fixing the bail, or that any notice was given to the oliicer who committed him to jail. Comm. v. Hatfield, 107 227. 727. For rulings as to the sufficiency, in an indictment for perjury before the municipal court of Boston, of .the allegations of jurisdic- tion, as to the officer before whom the oath was administered, and as to the time and place of the perjury charged. Comm. «. Butland, 119 317. 728. For rulings as to the sufficiency of an indictment for perjury, charged to have been committed in swearing to an answer to a bill of discovery. Comm. v. Warden, (11 Met.) 52 406. 729. An indictment for perjury, or suborna- tion of perjury, committed in the course of an «? °J otller legal Proceeding, must set forth the pendency of the action or other proceeding, and contain sufficient allegations respecting the questions in controversy therein, to show that the false testimony was material to the issue or question to be determined. Coram. «. Knight, 12 274; Comm. «. Pollard, (13 Met.) 53 225; Comm. «. ^ s ; (6 « G ") 72 274 ; Comm. v. Byron, 93 243 81; COmm ' *" Smith ' ( A ^ J, S0 ; -^, indi ctment may embrace in a single count, all the particulars, with respect to which the defendant swore falsely. Comm. e. Johns, (6 G.) 72 274. tJ 31 ' ^ j ndi ctment for perjury, in taking he poor prisoner's oath, need not 'allege that j^oath was administered within the prison , Comm. v. Alden, 14 388. mm?' }t !l unne cessary to state in the indict- Sde^vdu;M d y! fendantWMSUbP. Richardson, 126 34. 738. An indictment, which alleges that the defendant's first wife has not continually remained beyond the sea, and withdrawn from him, and absent, for the space of seven years together, is sufficiently sustained by proof, that the defendant left his first wife in England, ■where she had been, during all the subsequent time. Comm. v. Johnson, (10 A.) 92 196. (69.) Provisions, unwholesome. [See, also, ante, VIII, (67).] 739. It is unnecessary to allege, in an indict- ment, under St. 1866, Ch. 353, § 1; P. S., Ch. 208, § 2, or prove, that the defendant knew that the calf killed was less than four weeks- old, or that he intended to sell the veal within this Commonwealth, or to an inhabitant thereof; or what use the purchaser intended to make of it. And the words "with intent to sell," are equivalent to " for the purpose of sale." Comm. 1). Raymond, 97 567. 750 INDICTMENT. ETC., VIII, (70), (71), (72), (12), (U). (70.) Prize fighting. [See, also, Prize Fighting, and ante, VUI, (5).] 740. If two, by mutual consent, fight -with each other, each is guilty of an assault, although there is no ill will. Comm. 9. Collberg, 119 350. 741. In an indictment under the statute, it is not necessary to allege or prove that the fight was for a prize or award. Comm. 9. Welsh, (7 G.) 73 334. 743. The indictment is sufficient, if it follows the language of the statute, without specifying what appointment or engagement was made, or when, where, or by whom, or further setting out the circumstances. Comm. i). Welsh, (7 G.) 73 334; Comm. v. Barrett, 108 303. 743. An indictment against an aider and abetter, may in like manner pursue the statute, without detailing the defendant's acts. Comm. v. Welsh, (7 G.) 73 334. 744. An indictment, alleging that on a certain day, the defendants, by a previous appoint- ment within the Commonwealth, did leave the Commonwealth, and on that day did engage in a fight with each other, without its limits, suf- ficiently charges that the fight was in pursuance of the previous appointment made here. Comm. s. Barrett, 108 303. (71.) Railroad. [See, ante, VIII, (60); VXQ, i and Obstruction, etc.] i); Carrier, IV, • (72.) Rape; abuse of female child; at- tempt at. [See, also, Bape ; and ante, arts. 150 to 153, and VIII, (8).l 745. An indictment charging an assault with intent to ravish, and also a battery, is not bad for duplicity. Comm. 9. Thompson, 116 346. 746. An indictment for rape need not allege that the defendant was over fourteen years of age. Comm. ». Scannel, (11 C.) 65 547. [As to the female's age, see ante, art. 150.] 747. The defendant cannot be convicted of an assault with intent to ravish, if the indict- ment, though properly charging an assault upon a woman, is defective, in formally alleging that she was the person whom he intended to ravish. The withdrawal of a plea of not guilty to such an indictment, and pleading guilty, are not a waiver of the objection; nor do they pre- vent the defendant from reviewing, upon excep- tion, a sentence for the aggravated offence. Comm. 9. Kennedy, 131 584 748. Senile, that a man may be charged in an indictment as principal in a rape on his own wife, if he assisted another man to ravish her. Comm. 9. Fogerty, (8 G.) 74 489. 749. The word " ravished," of itself," implies the use of force, and when coupled with the allegation that the act was against the woman's ^consent, technically and sufficiently charges the crime, without the word "force or "feloni- ously." Comm. 9. Fogerty, (8 G.) 74 489. See, also, Comm. 9. Scannel, (11 C.) 65 547. 750. An indictment for abuse of a female child, which sets forth her age, and an assault upon her, with time and place stated, and then avers the offence, is not fatally defective by reason of the omission of the words " then and there," before the latter allegation, or of the repetition of her age after the second mention of her name. Comm. 9. Sullivan, (6 G.) 72 477. [As to the regularity of a conviction for a minor offence, upon an indictment for rape, see Rape. As to an assault with intent to ravish, see Assault and Battery, and ante, VIII, (8).] (73.) Receiving stolen goods. [See, also, Burglary; Larceny; Receiver op Goods Stolen; and ante, III, (6); IV, (2); VIII, (17); VIII, (48).] 751. In an indictment for receiving stolen goods, it is not necessary to state the place of the larceny. Comm. 9. Sullivan, 136 170. 753. Or to name the thief; but if he is named, the allegation must be proved as laid. Comm. 9. King, (9 C.) 63 384; Comm. 9. Slate, (11 G.) 77 60; Comm. 9. Hogan, 121 373. 753. And it is no defence, where the indict- ment charges the stealing by a person unknown to the jurors, and that the goods were the prop- erty of persons to them unknown, that the same grand jury have indicted a certain person for stealing the same goods, alleging them to be the property of a person specified. Comm. 9. Hill, (11 C.) 65 137. 754. Where an indictment against B, for re- ceiving stolen goods, contained three' counts, each alleging the larceny by A of goods, and the receipt thereof byB, knowing them to have been "feloniously stolen as aforesaid," each count describing different goods, and alleging the larceny and receipt at a different time; and the record, treating the counts as three for larceny, and three for receiving stolen goods, stated that a nol. pros, was entered as to the second and fourth counts, it was held that the indictment contained, only three counts, and the validity of the last count was not affected by the nol. pros. Comm. 9. Cohen, 120 198. 755. An indictment, averring that the defend- ant received, on a specified day, goods " before then" stolen, is sustained by proof of receipt of goods stolen after the day. Comm. 9. Campbell, 103 486 (74.) Rescue. [See, also, Impounding; Rescue; and ante, VUI, 756. A complaint for forcibly rescuing A from a police officer, who had him in custody INDICTMENT, ETC., VIET, (75), (76), (77), (78), (79), (80). 751 noon charge of an offence, is sufficient, with- out alleging that the defendant knew that A was in custody. Comm. v. Malloy, 119 347. 757. An indictment for attempting forcibly to rescue a prisoner in .the custody of a police officer, who had arrested him on a charge of breaking and entering a dwelling house, with intent to steal therein, is not defective for omit- ting to state the process, and the nature and circumstances of the holding; and proof that the prisoner was arrested in the dwelling house, on a charge of breaking and entering, and stealing, is not a variance. Comm. ».Lee, 107 207 (75.) Blot. [See, also, Eiot.J 758. If the indictment alleges that the defendants, "with force and arms," unlawfully assembled, and being so assembled, committed the acts charged, the words, "with force and arms," are deemed to apply to the entire allega- tion. Comm. v. Eunnels, 10 518. 759. Semble, that in an indictment for riot, where the only unlawful act committed was going about armed, etc., the words in terrorem pjntii are essential; but they are not essential, where a specific additional unlawful act is charged. Comm. v. Runnels, 10 518. 760. An indictment for a riot against three, where one is tried separately, is supported by proof of riotous acts by him, and any two other persons. Comm. v. Berry, (5 G.) 71 93. 761. An averment, in an indictment for riot- ous assault upon an officer, that he had A in custody upon a charge of larceny, is supported by evidence that the charge was of larceny in another state, and that the officer held A, under a legal precept, as a fugitive from justice. Comm. i). Tracy, (5 Met.) 46 536. 762. An indictment for a riot must charge an unlawful assembling together by the defendants. Comm. -o. Gibney, (2 A.) 84 150. 763. For an application of this rule, where an indictment was ruled to be insufficient as an indictment for riot, for want of such an allega- tion, although it contained charges of various violent acts done, " unlawfully, riotously, rout- ously, and outrageously," by the five defend- ants indicted, and others, "to the number of twelve or more," see Comm. v. Gibney, (2 A.) 84 150. (76.) Robbery. [See, also, Bobbery.] 764. At common law, an indictment for rob- bery must allege, in addition to the averments required in indictments for other larcenies, that ws taking was from the person, and that it was either by violence or by putting in fear. Comm. v. Humphries, 7 242; Comm. v. Clifford, (8 C.) 62 215. 765. S&nrMe, that in an indictment, under R. S., Oh. 125, § 15; G. S., Ch. 160, § 24; P. 8., Ch. 202, § 24, the word "rob" is essential. Comm. ®. Clifford, (8 C.) 62 215. 766. The indictment must allege that the articles stolen were carried away, and that they were the property of the person robbed, or of some other person, and these allegations must be made as in a common law indictment for robbery. Comm. v. Clifford, (8 C.) 62 215. •767. In an indictment, under G. S., Ch. 160, § 22; P. S., Ch. 202, § 22, it is not necessary to aver that the wounding or striking was done with the dangerous weapon. Comm. v. Mowry, (11 A.) 93 20. 768. Under that provision, it suffices to aver that the defendant, being so armed, "the said A, in and upon the face and head of the said A, then and there did strike and wound." Comm. ■». Mowry, (11 A.) 93 20. 769. An allegation of striking and wounding under that provision, (R. S., Ch. 125, § 13,) is not proved by evidence of a slight scratch, rup- turing the cuticle only, or of putting the de- fendant's arms around the person robbed, throwing him to the ground, and holding him jammed there. Comm. ■». Gallagher, (6 Met.) 47 565. 770. An indictment for robbery of sundry- bank bills and United States treasury notes, alleged to amount "together" to a certain sum, is not sustained by proof of a robbery of treas- ury notes only. Comm. v. Cahill, (12 A.) 94 540. 771. St. 1818, Ch. 124, § 1, punished with death a robber, who, armed with a dangerous weapon, made an assault with intent to kill or maim the person attacked, in case that was necessary to his purpose of robbing. Por an ap- proved form of indictment under that pro- vision, see Comm. «. Martin, 17 359. [This statute, except as to the punishment, corres- ponds to P. S., Ch. 203, § 22.] (77.) Street railroad. [See Obstruction, etc., and ante, viii, (63).l (78.) Theatrical exhibition. LSeeonfc,Vin,(5).] (79.) Threat to accuse of crime. [8eeonfe,Vin,(31).] (80.) Unlawful game. [See ante, VTJI, (6).] 752 INDICTMENT, ETC., VIII, (81-84)— INFANT, I, (1), (2). (81.) Vagrant. [See ante, VIII, (49) ; Idle, etc., Person.] (82.) Violating grave. [See Burial, 1II.1 (83.) "Way. [See Highway, V, (*); V, (4); and ante. arts. 167 to 170.] (84.) "Witness. 772. It is indictable, at common law, to dis- suade, hinder, and prevent a witness, duly sum- moned, from attending; and if an indictment for such an offence concludes contra formam statuti, the conclusion may he rejected as surplusage. Comm. v. Reynolds, (14 G.) 80 87. 773. In such an indictment, if sufficient is otherwise stated to describe the offence, it is unnecessary to show further that the trial was hindered and obstructed, or the result altered; or to allege in whose behalf or' where the witness was summoned, or that his testimony was material, or where he was required to appear. Comm. v. Reynolds, (14 G.) 80 87. Indorsement. [See Bill of Exchange and Promissory Note, ir; Writ, II, (2).] Infant. I. Contract by ob with, and Transfer to or prom an Infant. (1.) General rules. (2.) What contracts and transfers bind an infant. (3.) Voidable contracts and transfers. (4.) Affirmance and disaffirmance. II. Infant's Earnings. III. Torts and Crimes by or against an Infant. IV. Suit or other legal Proceeding by OR AGAINST AN INFANT. V. Other Matters. [For other rulings upon this subject generally, Bee Apprentice; Parent and Child. For analo- gous cases upon many of the questions arising, see Lunatic, etc. As to the property, etc., of an infant, see Guardian. As to the enlistment of an infant into the army or navy, see United States Forces, I. For rulings as to the plaintiff's due care, in an action brought for an injury to the person of an infant by the defendant's negligence, see Neg- ligence, II, (1).] L Contract by or with, and Transfer to or from, an Infant. [For analogous cases under all these subdivisions, see Lunatic?) (1.) General rales. 1. Infancy is a personal privilege, of which no one but the infant himself can take advantage. Olivers Houdlet, 13 237. See, also, Worcester v. Eaton, 13 371; Whitney v. Dutch, 14 457; Boston Bk. «. Cham- berlin, 15 220; Nightingale «. With- ington, 15 272; Kendall «. Lawrence, (22 P.) 39 540; Bradford v. French, 110 365. 2. Therefore a sale to or other contract with an infant, by an adult, binds the latter, until disaffirmed by the infant. Oliver «. Houdlet. 13 237. 3. An infant executor, or administrator, may avoid his contract, in a case where the infant might have done so, and on the same terms. Smith v. Mayo, 9 62; Hussey v. Jewett, 9 100; Martin v. Mayo, 10 137; Bartlett v. Cowles, (15 G.) 81 445. 4.. So may his guardian. Chandler v. Simmons, ruling dicta, in Oliver i 237. 97 508, over- Houdlet, 13 5. An attaching creditor has no such power. Kendall ©.Lawrence, (22 P.) 39 540. 6. Nor can a creditor avoid an infant's con- veyance, or other transfer of property. McCarty ». Murray, (3 G.) 69 578; Kingman i>. Perkins, 105 111. 7. Qu., Whether an infant is subject to pro- ceedings under the insolvent laws. Butler v, Breck, (7 Met.) 48 164; Farris v. Richardson, (6 A.) 88 118; Winchester r. Thayer, 129 129. 8. If he can avoid the proceedings, it is his personal privilege; and if a firm, of which he is a member, has been subjected to such pro- ceedings, the other partners cannot avoid them. Winchester v. Thayer, 129 129. (2.) What contracts and transfers bind an Infant. 9. An infant is bound by a contract which the laws requires him to make, as a bastardy bond. McCall «. Parker, (13 Met.) 54 373. See, also, Baker v. Lovett, 6 78. 10. At common law, an infant husband is liable for his wife's debts, contracted before marriage. Butler v. Breck, (7 Met.) 48 164. 11. And an infant husband, whose estate is assigned under the insolvent law, cannot revoke a transfer previously made to pay such debts Butler v. Breck, (7 Met.) 48 164. 12. Qu., as to the rights and powers of an in- fant feme covert, under the married woman's Bartlett «. Cowles, (15 G.) 81 445. INFANT, I, (2), (3). 753 12 Where an infant enters into a contract of copartnership, puts capital therein, and con- tinues therein until dissolution thereof, and upon the dissolution the assets are insufficient to pay hack to the copartners their contribu- tions the infant must hear his share of the loss. 'Moleyfl. Brine, 120 324. 14. So if an infant partner puts capital into the firm, and does work for it, he cannot after- wards, by rescinding the contract, recover from his partners the money so paid, or the value of his tervices. Page v. Morse, 128 99. 15. Where an infant, in consideration of an outfit to enable him to go to California, agrees, with the consent of his father, to give to the party furnishing the outfit a portion of all the avails of his labor, and remits money accord- ingly, he cannot recover back the money sent, less the outfit, and other expenses of the other party. Breed v. Judd, (1 G.) 67 455. 16. Qu., whether such an outfit would he in- cluded within the term necessaries. Breed v. Judd, (1 G.) 67 455. 17. An infant's indorsement of a promissory note, given for his services, cannot be avoided by him, so as to give him the right to recover of the maker, who has paid the indorsee without notice of a countermand. Nightingale ii.Withington, 15 272. 18. Money, remitted by an infant to his broth- er, with directions to expend it for the support of their parents, and thus expended, cannot be recovered back on his attaining majority. Welch v. Welch, 103 562. 19. Qu., how far an infant's right to rescind an executed contract extends. Welch v. Welch, 103 562; Breed ®. Judd, (1 G.) 67 455; Gaffney *. Hay- den, 110 137. 20. An infant may bind himself by an ex" press contract for necessaries, and he is liable for money paid, at his request, to a third person for necessaries. Stone v. Dennison, (13 P.) 30 1; Swift v. Bennett, (10 C.) 64= 436. 21._ An express contract for necessaries must be fair and reasonable, in order to bind the in- fant to pay a stipulated price ; but the mere facts, that he was to pay for them in work, and has performed the work, and that, in an event which has happened, his services were worth more than the stipulated compensation, will not enable him to maintain a quantum meruit. Stone v. Dennison, (13 P ) 30 1. 22. One, who takes from an almshouse an in- fant, whose father is in the Soldiers' Home, whose mother is in a reformatory institution, too has a guardian, and who will inherit prop- erty upon his father's death, may maintain an action against him, after his father's death, for necessaries furnished on the credit of his ex- pectations. Trainer «. Trumbull, 141 527. 23. An infant, residing with his father, and supported by him, is not liable upon an implied contract for necessaries. Eoyt v. Casey, 114 397. See, also, Davis v. Caldwell, (12 C.) 66 512. Vol. 1—95 24. In such a case, the poverty of the father is not alone sufficient to render the infant liable; the plaintiff must show an omission of the father to furnish them. Hoyt v. Casey, 1 14 397. 25. An infant, arrived at years of discretion, and absent from home, or otherwise not sup- ported by his father, is liable, upon a quantum meruit, for necessaries furnished him at his request. Angel «. McLellan, 16 28. 26. The promisee in a negotiable note, given by an infant for necessaries, may, in an action upon the note, recover as much as the neces- saries were reasonably worth, but no more. Earle v. Eeed, (10 Met.) 51 387. 27. "Necessaries" is a flexible, not an abso- lute, term, having relation to the infant's con- dition in life, to the habits and pursuits of the place in which, and the people among whom, he lives, and to the change" in those habits and pursuits, occurring in the progress of society. Per Thomas, J., in Breed v. Judd, (1 G.) 67 455. See, also, Davis v. Caldwell, (12C.) 66 512. [.See further, on the subject of necessaries, Hus- band and Wife, II, (»).] 28. Whether particular articles furnished to an infant are necessaries, is generally a question of fact for the jury; the two principal circum- stance- being, whether they were suitable to his estate and condition, and whether he is without m3ans of support. Davis v. Caldwell, (12 C.) 66 512. 29. But in one case it was held, that it is for the conr; to determine whether the articles are necessaries, and for the jury to pass upon ques- tions of quantity and quality, and their adapta- tion to the infant's wants and condition. Merriam ■». Cunningham, (11 C.) 65 40. See, also, Swift v. Bennett, (10 C.) 64 436. 30. Bepairs on the infant's dwelling house are not necessaries, in the technical sense of the word. Wallis v. Badwell, 126 366. See, also, Tupper ■». Caldwell, (12 Met.) 53 559. (3.) Voidable contracts and transfers. 31. A special executory contract by an infant, for his services, is voidable; and upon his avoid- ing it, he may maintain an action upon a quantum meruit. Moses v. Stevens, (2 P.) 19 332; Nickerson v. Easton, (12 P.) 29 110; Vents, Osgood, (19 P.) 36 572; Gaffney ■». Hayden, 110 137. 32. But semble, that the employer may recoup for damages occasioned by the termination of the contract. Moses ■b. Stevens, (2 P.) 19 332. 33. A charter party to an infant is voidable at his election. Thompson*. Hamilton, (12 P) 29 425. 754 INFANT, I, (3), (4). 34. A release of damages for an injury to his person, executed by an infant, is voidable by him; but if the jury think the compensation sufficient, he can recover only nominal damages. Baker 9. Lovett, 6 78. 35. An infant heir, upon attaining majority, may avoid an award, made under a submission by his guardian, whereby he is required to pay to the widow an annuity in lieu of dower. Barnaby v. Barnaby, (1 P.) 18 231. 36. Any contract by an infant, not for neces- saries, which may or may not be beneficial to him according to circumstances, is not void, but voidable at his election. Bradford 1> French, HO 365; Owen 9. Long, 112 403; McCarthy B.Hender- son, 138 310. See, also, Chandler v. Simmons, 97 508; Gaffney v. Hayden, 110 137. 37. Signing a promissory note, as principal or as surety for another, is such a contract. Beed «. Batchelder, (1 Met.) 42 559; Owen D.Long, 112 403. 38. A conveyance of land by an infant is voidable; and if neither avoided nor confirmed by him after he attains majority, it is valid against an attachm nt by his creditor. Boston Bank 9. Chamberlin, 15 220; Kendall v. Lawrence, (22 P.) 39 540. 39. An infant over eighteen years old is bound by his contract of enlistment into the state militia, although without consent of his parent, master, or guardian. .Ez parte Dewey, (11 P.) 28 265. [As to enlistment in the United States forces, see TThited State 1 orces, I/] 40. An agreement by an infant apprentice to give his master the bounty money, if the latter will permit him to enlist, is voidable by the infant. Kelly ii. Sprout, 97 169. 41 . An infant's fraudulent representation that he was of age does not estop him from avoid- ing his contract. Merriam 9. Cunningham, (11 C.) 65 40; Baker v. Stone, 136 405. 42. Nor does the fact that he failed to dis- close his minority, although he knew that the other party believed him to be of age. Baker *. Stone, 136 405. 43. Where an infant rescinded a contract for the purchase of a vehicle, and sued to recover the price paid, it was held that the defendant could not recoup for the use of the vehicle, although the infant continued to use it after the date of the writ. . McCarthy 9. Henderson, 138 310 (4.) Affirmance and disaffirmance. 44. A voidable contract of an infant becomes binding upon him by his direct promise to pay, or otherwise perform, made after he became of age, and knowing that he had a defence by rea- son of his infancy. Owen 9. Long, 112 403.. See, also, Whitney 9. Dutch, 14 457; Beed «. Batchelder, (1 Met.) 42 559; Peirce v. Tobey, (5 Met.) 46 168; Bradford e. French, 110 365. 45. Semble, however, that his knowledge that he is not liable, is immaterial. Morse v. Wheeler, (4 A.) 86 570, overruling, pro tanto, Ford 9. Phillips, (1 P.) 18 202. 46. An infant's contract or conveyance can- not be affirmed by him, until he attains his ma- jority; but it may be avoided by his guardian.' Chandler «. Simmons, 97 508. 47. An infant, who receives property under a contract of sale to him, and then surrenders it to the seller, intending to avoid the contract, ceases to have any right over the property, and cannot retake it. Edgerton v. Wolf, (6 G.) 72 453. ' 48.. A sale of a chattel by or to an infant may be avoided by him, either during or after his m'nority Bradford v. French, 110 365. See, also, Edgerton v. Wolf, (6 G.) 72 453; Chandler 9. Simmons, 97 508. 49. If an infant purchases goods on credit, and refuses to pay, the vendor may reclaim the goods. Badger 9. Phinney, 15 359. 50. But money paid to an infant or insane person, for his conveyance or transfer of prop- erty, need not be tendered back, to enable him or his guardian to avoid the conveyance, and recover back the property. Dana 9. Stearns, (3 C.) 57 372; Gib- son v. Soper, (6 G.) 72 279; Chandler D.Simmons, 97 508; Bartlett v. Drake, lOO 174; Walsh v. Young, 110 396. Overruling, pro tanto, Badger 9. Phinney, ' 15 359; Bartlett v. Cowles, (15 G.) 81 1 445; Arnold v. Richmond Iron Works, (1 G.) 67 434. 51. Where an infant wife joined with her husband in a conveyance of land, held by them in common, and a child of the marriage was afterwards born, it was held, that she could maintain a writ of entry to recover an undi- vided moiety of the land, if she did not retain specifically a portion of the consideration, after she attained majority. Walsh s. Young, 110 396. 52. The mere acknowledgment of the exist- ence of a debt, is not a sufficient ratification of a contract, made while the party was an infant; there must be either a direct promise to pay, or a direct ratification, or something equivalent, either in words or acts. Thompson «. Lay, (4 P.) 21 48; Proc- tor ». Sears, (4 A.) 86 95. See, also, Ford 9 Phillips, (1 P.) 18 202; Tappan ». Abbott, cited, (1 P.) 18 203. 53 If the promise is to pay when the defend- ant is able, the plaintiff cannot recover without proof of ability; but he is not required to prove ability to pay without inconvenience. Thompson 9. Lay, (4 P.) 21 48; Proctor 9. Sears, (4 A.) 86 95. 54. The acts relied upon must be such, as fairly and justly lead to the inference, that he intended to ratify the contract and pay the debt. Tobey v. Wood, 123 88. See, also, Peirce v. Tobey, <5 Met.) 46 168; Proc- tor «. Sears, (4 A.) 86 05. INFANT, I, (4); II. 155 55 Where an infant purchases property, and, after he becomes of age, retains specifically the moperty and uses or disposes of it, this will, if unexplained, lead to the inference that he has ratified the transaction; but this does not apply to money, not specifically retained and specifi- cally used or disposed of. Chandler v. Simmons, 97 508; Todd v Clapp, 118 495; Tobey «. Wood, 123 88; Baker v. Stone, 136 405. 56. For applications and illustrations of the rule that retaining, etc., the specific fruits of the contract, after attaining majority, will war- rant a jury in finding that the infant intended to ratify it, see Boyden v. Boyden, (9 Met.) 50 519; Eeegan*. Cox, 116 289. 57. For ca^es where it was held that there was ho sufficient ratification under the rule, Smith v. Kelley, (13 Met.) 54 309; Dana v. Stearns, (3 C.) 57 372; Todd «. Clapp, 118 495; Tobey v. Wood, 123 88. 58. The rule as to ratification is the same, whether the debt was that of the infant alone, or that of the infant and another jointly. Whitney v. Dutch, 14 457; Kennedy , d. Doyle, (10 A.j 92 161; Todd v. Clapp, 118 495; Tobey®. Wood, 123 88. 59. And where two infants are partners, a ratification may be made by one only. Keegano. Cox, 116 289. 60. An award, under a submission by the guardian of an infant, whereby he is to pay the widow an annuity, and she is to release her dower, is ratified by his paying an instalment, and entering into and occupying the land, after attaining majority. Barnaby v. Barnaby, (1 P.) 18 221. 61. One is not estopped from avoiding a note and a mortgage given by him, when an infant, for borrowed money, by refusing to pay the note and continuing in possession of the land. Baker v. Stone, 136 405. 63 But a conveyance of the land, subject to tho mortgage, after he attains majority, would be a ratification. Boston Bk. ». Chamberlin, 15 220. 63. A clause in a will, directing payment of all just debts," is not a ratification of a con- tract made by the testator, during his infancy. Smith «. Mayo, 9 62. v , 64. Partial payment of a note, given during "nancy is not such a ratification as to render tie maker liable for the balance. Per Putnam, J., in Ford «. Phillips, (1 P.) 18 202. 65 Where an infant makes a partial pay- ment on his note, his oral promise, after he at- wtn i majority, to pay the balance, will ratify T Wment, so as to take the demand out of ™ ^tute of limitations. Peirce v. Tobey, (5 Met.) 46 168. ml ■ A P r ? mise to pay a note, made during the promisor s infancy, upon his return from a voy- S„ P u , Whlch he ls g° in S. is a ratification, fis&b&rtK: duHng the voyage; and m Martin v. Mayo, 10 137. See, also, Thompson «. Lay, (4 P.) 21 48. 67. Where an infant received money from the plaintiff upon a promise to pay it to his daughter, and, after attaining majority, prom- ised the daughter's husband to pay it to the plaintiff, this will enable the plaintiff to main- tain indebitatus assumpsit. Jackson v. Mayo, 1 1 147. 68. A ratification must be voluntary, not under terror of an arrest; and must have been made before the writ was issued. Ford v. Phillips, (1 P.) 18 202. 69. Where an infant gave notice to his assignee of a note not negotiable, that he con- sidered the bargain void, and offered to return the consideration, a subsequent payment by the maker to the inl ant, will protect him against an innocent purchaser from the assignee. Willis «. Twambly, 13 204. II. Infant's Earnings. [See, also, ante, I, (2) ; I, (3) ; and Appeentice; Pa- bent ant. Child, I, <3).l 70. An infant's father is entitled to his earn- ings, although he is at no expense for his sup- port, except as otherwise prescribed by statute. Benson v. Remington, 2 113. 71. And a father may recover for his infant son's services in an unlawful occupation, if he did not know the character of the services, while the son was perfoming them. Emery v. Kempton, (2 G.) 68 257. 72. But an infant who has been authorized by his father to go out to service, and retain his earnings to his own use, inay maintain an action therefor against his employer, although the latter was ignorant of such authority, when the infant entered his service; and, if no express contract was made, the law will imply a promise to the infant. Corey i> Corey, (19 P.) 36 29; Wood ii. Corcoran, (1 A.) 83 405. See, also, Jenney v. Alden, 12 375; Abbott «. Converse. (4 A ) 86 350. 73. Qu., whether a father is entitled to the pay earned by his infant son, as a soldier or a ' Kelly «. Sprout, 97 169. 74. He is not entitled to his infant son's bounty money upon enlistment. Banks v. Conant, (14 A.) 96 497; Taylor v. Mechs. Sav. Bk„ 97 345. 75. An infant, whose father is dead, and whose mother has married again, is. entitled to his own earnings Freto v. "Brown, 4 675; Worcester 11. Marchant, (14 P ) 31 510. 76. But where a husband receives into his family his wife's children by a former mar- riage, he stands to them in loco parentis, and in the absence of an express or implied arrange- ment to the contrary, he has a right to their services, and is liable for their support and education. Mulhern «. McDavitt. (16 G.) 82 404. 756 INFANT, II; III. 77. Qu., whether the marriage of an infant, -with his father's consent, operates as an emanci- pation, so as to give him the right to his own earnings. Taunton v. Plymouth, 15 203. 78. "Where an infant son makes a contract for his services on his own account, and his father knows of it, and makes no objection, this is an implied assent that the son shall have his own earnings, and entitles him to them, unless there is a design to defraud the father's creditors Whiting v. Barle, (3 P.) 20 201. 79. And where an infant made a contract for his services, and received therefor a negotiable note, which he indorsed to a third person, and his father made no claim until after the indorse- ment, it was held that payment to the father by the maker, with knowledge of the indorsement, was no defence to an action by the indorsee. Nightingale v. Withington, 15 272. 80. If the father denies his son a home and support, the law implies an emancipation; and payment to the son for his services is a defence to an action by the father. Nightingale «. Withington, 15 272. 81 Where an agreement is executed between A and B, and A's emancipated minor son, for the employment of the latter by B during his minority, the emancipation is no defence to A's action against B for breach thereof; and A can recover, with his other damages, the expenses incurred by him in obtaining new employment for the son; and the wages earned in the new employment will be allowed in diminution of damages. Dickinson v. Talmage, 138 249. 82 If such an agreement provides that A shall hold B harmless against an indenture of apprenticeship, simultaneously executed, that does not import the indenture into the agree- ment, so as to affect B's liability upon his cove- nants in the latter. Dickinson v. Talmage, 138 249. 83. For rulings as to the sufficiency of acts of emancipation of an infant son by his father, so as to entitle the son to his earnings, see Manchester v. Smith, (12 P.) 29 113; Stiles d. Granville, (6 C.) 60 458; Dodge v. Favor, (15 G.) 81 82; Abbott *. Con- verse, (4 A.) 86 530. 84. Where a widow made a contract that her infant son should work for the defendant, at a stipulated price, and she would board him, and after full performance she brought an action upon the promise, it was held that she might recover, as the son had consented to the con- tract, and fulfilled it, and the defendant would not be liable to him. Clapp v. Green, (10 Met.) 51 439. 85. Where B placed his infant child in A's family, on the Tatter's promise to educate and provide for her as his daughter; and subse- quently B's wife obtained a divorce, with an award of the custody of the child; and two years afterwards B sent her to her mother, hav- ing failed to fulfil his contract; it was held that the mother could not recover. Farnsworth. v. Wakefield, (12 C.) 66 514. 86. Where an infant shipped, without his father's consent, for a whaling voyage, and de- serted during the voyage, it was held that the father might, nevertheless, recover for his ser- vices from the shipowner, but not from the Bishop v. Shepherd, (23 P ) 40 492. 87. As to the measure of damages, see Weeks v. Holmes, (12 C.) 66 215; cited Damages, art. 115. 88. Where a father, whose infant daughter was employed by a manufacturing company, at a distance, gave the company notice not to em- ploy her any longer, and that if they did so, he should demand $3.50 per week, and would not allow any deduction, and that they were not to allow or pay her anything on account of her work; it was held that he was entitled to re- cover only as much as her labor was reasonably worth, deducting her board, but without de- duction for clothing supplied to her. Adams v. Woonsocket Co., (11' Met.) 52 327. 89. Where a father notified the child's grandfather, with whom the child was living, that if the child should thereafter perform ser- vices for his grandfather, the father would ex- pect full pay therefor, it was held that he was not entitled to recover the value of the child's services, irrespectively of their value to the de- fendant. Williams v. Williams, 132 304. III. Torts and Cbtmes by ob against an Infant. 90. An infant is not estopped from avoiding his contract, by his fraudulent representation that he was of age. Merriam ». Cunningham, (11 C.) 65 40; Baker «. Stone, 136 405. 91. Where an infant of such tender years, as to be incapable of either negligence or care, sues to recover damages for an injury caused by the negligence of another, the care or negli- gence by which he is affected, upon a question of contributory negligence, is that of the per- son under whose protection and control the infant is. Holly B.Boston Gas Light Co., ^G.) 74 123; Callahan v. Bean, 1.9 A.) 91 401; Mulligan v. Curtis, 100 512; Gibbons ©.Williams, 135 333; McGeary v. East- ern R. B., 135 363. 92. Where the plaintiff, a child five years' old, was in the care of an older child, the care required is such as would be ordinarily exer- cised, under like circumstances, by children of their respective ages. O'Connor ». Boston & L. Railroad, 135 352. See, also, Stock D.Wood, 136 353;' Tyler v. New York & N. E. R. R., 137, 238. [For additional rulings upon this subject, see Negligence, II, (1).] 93. An infant is liable in trover for conver-' sion of a horse hired by him for a specific trip,] and used for another trip. Homer v. Thwing, (3 P.) 20 492. INFANT, III; IV. 757 94. He is liable for a penalty under the militia law. Winslow v. Anderson, 4 376. 95. He is liable, in trespass, for procuring another to commit an assault and battery. Sikes v. Johnson, 16 389, 96. Where an infant and an adult were jointly sued for an assault and battery upon another infant, the plaintiff's release to the adult, is no defence to the infant. Baker «. Lovett, 6 78, 97. Where an infant avails himself of his minority to avoid payment of a note, given for a chattel sold to him, which he had procured by his fraud, and refused to deliver on demand, he is liable in trover, although he had parted jpith the chattel before demand. Walker v. Davis, (1 G.) 67 506. 98. In such a case replevin lies against the infant's administrator. Badger v. Phinney, 15 359. 99. An infant is not liable for the malicious prosecution of a suit in his name, by his next friend, and without his knowledge, although he assented to it after it came to his knowledge. Burnham v. Seaverns, 101 360. 100. Semble, that he would be liable if he continued to prosecute it after he became of age. Burnham v. Seaverns, 101 360. 101. A child between seven and fourteen years of age, is not presumed to be doli eapax, and in a criminal prosecution, either for a malum, in se, or a malum prohibitum, the gov- ernment must establish his legal capacity to commit the offence. . Comm. v. Mead, (10 A.) 92 398; Comm. ii. Mead, (10 A.) 92 400 note. 102. A boy, under fourteen years of age, is presumed to be incapable of committing a rape; hut he may be convicted of an assault with intent to commit a rape, Comm. ». Green, (2 P.) 19 380. IV. Suit or other legal Proceeding by OR AGAINST AN INFANT. 103. An action for money had and received, or for money lent, cannot be maintained against an infant, by one who, at the guardian's re- quest, has paid off a mortgage on the infant's land. Bicknell «. Bicknell, 111 265. 104. Where a street was irregularly laid out over infants' land, and more than a year elapsed Deiore either of them became of age, a certio- rari was granted upon the petition of one of uk 1 ' at the first term after he became of age, although the tenant had received notice to remove the buildings, and had communicated it to the infants' guardian. Stone v. Boston, (2 Met.) 43 220. 105 An infant, like an adult, is bound by guardian may recover treble the sum, although he knew the facts within three months. French v. Marshall, 136 564. _ 106. An action upon a contract, made by an infant and ratified after his majority, is prop- erly brought upon the contract, Lot the new promise. Whitney «. Dutch, 14 457. 107. "Where in an action against two, upon a contract, one pleads infancy, the plaintiff may discontinue as to him, and proceed against the other. Woodward «. Newhall, (1 P.) 18 500- Tappan ». Abbot, cited, (1 P.) 18 502.' _ 108, A decree against an infant, must allow him a day, after his becoming of age, to answer the bill. Coffin v. Heath, (6 Met.) 47 76; Whitney v. fctearns, (11 Met.) 52 319. 109. But this rule does not apply where the infant is a trustee, although the trust results by implication. Walsh «. Walsh, 116 377. 110. An infant who is tenant in common with another, of personal pr perty, cannot, by disaffirming the sale upon his majority, main- tain an action against one to whom the property was assigned by the other tenant. Furlong ». Bartlett, (21 P.) 38 401. 111. It is no ground for arrest of judgment in replevin by an infant, that he is principal in the replevin bond. Blood «. Harrington, (8 P.) 25 552. 112. AprocTiein ami for an infant plaintiff is now admitted, without any other authority than a recital in the record. Miles «. Boyden, (3 P.) 20 213. 113. A prochein ami is, in theory of law, appointed by the court, and formerly a judge's appointment was necessary. Guild I), Cranston, (8 C.) 62 506. 114. And now his authority will, in a proper case, be revoked by the court. The infant himself is an appropriate person to apply for such a revocation. If it is granted, the pro- ceedings may be stayed until his majority. Guild v. Cranston, (8 C.) 62 506. 115. A writ of entry in behalf of infants can- not be maintained in the name of their guardian, but must be brought in their name, by their next friend. Jennings v. Collins, 99 29. 116. And, since a guardian h,as only a naked power, not coupled with a trust, any suit relat- ing to the infant's property or other rights, must be brought in the infant's name, by any next friend whom the court may appoint or permit to act. French o. Marshall, 136 564. See, also, Hicks «. Chapman, (10 A.) 92 - 463; and Guardian, II. 117. Where a suit is commenced in the infant's name, without a next friend, the irregu- larity is pleadable in abatement, and thereupon a next friend may be allowed to come in by amendment to prosecute. Blood v. Harrington, (8 P.) 25 552; Smith v. Carney, 127 179. 758 INFANT, IV; V 118. The father of an infant Interested in a deceased person's estate, may apply to the judge of probate, as the infant's next friend, for leave to sue the administration bond. Stevens v. Cole, (7 C.) 61 467. 119. Semble, that a prochein ami can maintain a suit only for a cause, which does not require a special demand before suit brought. Miles v. Boyden, (3 P.) 20 213. See, Guild v. Cranston, (8 C.) 62 506; Brad- ford v. French, 1 10 365. 120 An infant plaintiff is, and his prochein, ami is not, liable for costs. Crandall «. Slaid, (11 Met.) 52 288; Smith v. Floyd, (1 P.) 18 275. 121. A writ, indorsed by a prochein ami, is ndorsed by the plaintiff, within St. Ch. 28, § 11. Crossen ». Dryer, 1 7 222. 122. That an infant, who sues by a stranger, as his next friend, has a mother living, is no ground for a plea in abatement; if the objection is good, it must be taken by motion to stay. Trask v. Stone, 7 241. 123. Under P. S., Ch. 162, an infant is not liable to arrest for debt upon a civil process; but he cannot maintain an action against the officer, or one acting in his aid, for arresting him upon a valid writ. In re. Cassier, 139 458; Cassier v. Fales, 139 461. 124. A judgment against an infant defendant, where a guardian ad litem has not been ap- pointed for him, is erroneous and voidable, but not void Knapp v. Crosby, 1 479; Valier «. Hart, 11 300; Goodridge v. Ross, (6 Met.) 47 487; Austin v. Charlestown Sem., (8 Met.) 49 196; Crockett v. Drew, (5 G.) 71 399; Swan v. Horton, (14 G.) 80 179; Farris v. Richardson, (6 A.) 88 118. 125. His release of errors, after attaining majority, will cure the error. Hill v. Keyes, (10 A.) 92 258. 126. But his mere promise to pay the debt will not. Goodridge o. Ross, (6 Met.) 47 487. 127 A guardian ad litem is neither necessary nor proper in a complaint under the militia law. Wmslow v. Anderson, 4 376. 128. A guardian ad litem should have no in- terest in the controversy adverse to the infant's. Parker v. Lincoln, 12 16; Bicknelli). Bicknell, 111 265. 129. On a bill in equity to redeem against an infant mortgagee, his guardian is properly joined, and the court will appoint another guardian ad litem. Parker v. Lincoln, 12 16. 130. In equity, if an infant has a probate guardian, a guardian ad litem need be appointed, only where the interests of the guardian and the ward conflict. Mansur v. Pratt, lOl 60 131. If an infant's guardian ad litem, duly appointed, assents to the allowance of a will, the Infant cannot maintain certiorari by his next friend to quash the proceedings. Peters «. Peters, (8 C.) 62 529. 132. The assent of a guardian ad litem to an account, rendered by a guardian or other trustee, and settled, is no bar to a revision and correc- tion of the account, where it is re-opened on the settlement of a subsequent account. Blake v. Pegram, 101 592. 133. Where the complainant in a bastardy process entered her complaint by attorney, but pleaded by guardian, it was presumed upon certiorari that she was of age. Comm. ». Moore, (3 P.) 20 194. 134. In an action upon a judgment recovered in another state, without actual notice to the defendant, he may show in defence that he was an infant, and no guardian ad litem was appointed. Bartlet v. Knight, 1 401. 135. Where insolvency proceedings were taken against two partners, one of whom was an infant, who was represented by a guardian ad litem, and has ratified the proceedings since attaining majority, the other cannot object. Winchester v. Thayer, 129 129. [For analogous cases, as to a guardian ad litem for aninsane defendant, see Divorce, II, (2); 111; Guak- diam AD Litem.] 136. The allowance of an administrator's account, while a legatee was an infant, and with- out notice to her, does not bar her action for the legacy. Collins v. Collins, 140 502. 137. An action, n^t for necessaries,- begun against a defendant while he was an infant, to which he pleads his infancy, cannot be main- tained upon proof of ratification since he attained majority. Freeman e. Nichols, 138 313. V. Other Matters. 138. An infant alien cannot be naturalized upon his petition: qu., whether he can be upon his parent's or guardian's petition. Me parte he VoiestieTe, 2 419. 139. An infant, more than eighteen years old, is competent to be clerk of a militia company. Mb parte Dewey, (11 P.) 28 265. 140. Where the words of a law, in their com- mon and ordinary signification, are sufficient to include infants, the virtual exception must be drawn from the intention of the legislature, manifested by other parts of the law, from the general purpose and design of the law, and from the subject matter of it. McCall v. Parker, (13 Met.) 54 372; Bradford v. French, HO 365. 141. The statutory demand by a mortgagee, upon an officer attaching mortgaged chattels, upon a writ against the mortgagor, may be made by an infant mortgagee. Bradford r>. French, 110 365. INFORMATION— INJUNCTION, I, (1). 159 142 At common law, an infant of fourteen years' and upwards, may dispose of his personal ^^eanetuttlefleld.aP.) 18 239. Us to the rule under the statute, see Will.] 143 Under the English statute, 24 Geo. II., Ch 23 for correcting the calendar, which was, bv its terms, applicable to the colonies a person horn on April 4, 1745, old style, would become of age on April 15, 1766, new style Danvers v. Boston, (10 P.) 27 513. Information. I As to informations in particular cases, see the titles of the subjects thereof, as Betting and Gam- ing; Charity; Conspiracy; Conviction and Senten ce ; Lottery ; Nuisance ; Quo Warranto ; Heal Action, etc. For additional and analogous cases, see attorney-General; Indictment.] 1. Before G. S., Ch. 158, § 3; P. S„ Ch. 200, 6 3 all public misdemeanors, which might be prosecuted by indictment, might also be prose- cuted by information, unless the statute other- wise directed. Comm. v. Waterborough; 5 257. 2. An information resembles, not only an in- dictment in the correct and technical descrip- tion of the offence, but also a qui tarn action, in which the informer must show the forfeiture, and its appropriation, or, at least, the portion given him by statute. Comm. v. Messenger, 4 462. [As to the precedence gained in an information for a penalty, by him who first commences a prosecu- tion, see Indictment, arts. 8, 350 to 352.] 3. A prosecution by information is com- menced by filing the information. Comm. v. Cheney, 6 347. 4. In an information against two or more, on a penal statute, for forfeitures incurred by mal- feasance, where the defendants plead not guilty, (he jury may convict some, of the whole or part of the offences charged, and acquit the others. Hill®. Davis, 4 137. 5. In such an information, judgment may be given against the defendants as trespassers. Hill v. Davis, 4 137. 6. A judgment for forfeiture, on an informa- tion, or inquest of office, annuls the original grant, and if any part of the lands is assigned to the defendants, they must hold the same sub- ject to the conditions and restrictions expressed in the judgment, which is like a decree in chancery. CushingB.Hacket, 10 164; Cushing v. Hackett, 11 202. 7. An information, filed by the attorney-gen- eral, is essentially a public criminal prosecution; it b filed by him without leave of the court, and the court will not direct or advise him on the subject, Goddard v. Smithett, (3 G.) 69 116. Initials. l.See, also, Indictment, arts. 40, 200; Name.] 1. A signature with the surname, and initials of the Christian name is a sufficient compliance with a statute requiring a writ to be indorsed with the plaintiff's " Christian and surname." Clark v. Paine, (11 P ) 28 66. 2. In a bill of particulars upon an indictment for barratry, the initial letters of the first names of the magistrates sufficiently specify their names, in the absence of any proof that there are two with the same initials. Comm. v. Davis, (11 P.) 28 432. 3. An official certificate is sufficiently signed, if the first name is expressed only by its initial " Webber v. Davis, (5 A.) 87 393. 4. Where the defendant, in an action brought by Daniel George Luce, introduces the record of a judgment in favor of Daniel G. Luce, it is presumed that the plaintiff in the action is the person in whose favor the judgment was ren- dered. Luce v. Dexter, 135 23 See, also, Braconier v. Packard, 136 50, cited in Intoxicating Liquors, art. 122; and Patrick v. Smith, 120 510; Getchel o. Moran, 124 404, cited in Lien, art. 107. Injunction. I. General Rules. (1.) Where granted or refused. (2.) Bond; punishing violation of injunction. II. Particular Cases. (1.) Staying proceedings. (2.) Water power and water course. (3.) Trade mark, firm' name; trade secret; restraint of trade. (4.) Other matters. [See, also. Equity Jurisdiction. For injunctions in cases other than those considered herein, see Cor- poration ; Easement; Fraud, V, (2) , Mortgage ; Nuisance, II; Quieting Title, II; Specific Per- formance; Waste, and the other principal heads of equity jurisprudence.! Inhabitant. [See Domicil.] I. General Rules. (1.) "Where granted or refused. 1. A party may be enjoined against a tortious act, although others interested with him are within the jurisdiction and not_ joined: much more when they are not within it. Florence B, M, Co. v. Grover & Baker S. M. Co., HO 1. 2. A motion to dissolve or modify a prelimi- nary injunction, made more than a year after it was granted, and after the cause has been brought to issue upon the merits, will not be granted without proof of new or special cir- cumstances. Florence S. M. Co. o. Grover & Baker S, M. Co., HO I. 160 INJUNCTION, I, (1), (2). 3. A preliminary injunction will not be granted to stay waste, or nuisance, except in case of urgent necessity, or where the plaintiff's right is clear, or irreparable injury will ensue by the continuance of the defendant's acts. Charles R. Bridge v. Warren Bridge, (6 P.) 23 376. 4. A court of chancery will restrain by in- junction a threatened levy of an execution upon real property not subject to levy, without put- ting the owner to a writ of entry, after the levy has been completed, and he has been disseized. O'Hare v. Downing, 130 16. _ 5. An injunction will not be granted to for- bid the sale of shares of stock by a citizen here, joined as defendant with a foreign corporation, where, by the reason of the inability to procure jurisdiction over the latter, the court cannot enforce and establish its decree, with respect to the principal subject of the controversy. Kansas Construction Co. v. Topeka, etc., Railroad, 135 34. 6. The court will not grant a preliminary in- junction, to restrain the proprietors of a toll bridge, professing to act under authority of a statute, from erecting their bridge so near the plaintiffs', as to interfere with the plaintiffs' franchise, where the defendants deny the ex- clusive right claimed by the plaintiffs, and the injury which the plaintiffs might suffer by de- lay is not irreparable. Charles R. Bridge v. Warren Bridge, (6 P.) 23 376. 7. The remedy by bill for an injunction is appropriate, where a party claims a franchise under a statute, and is in the possession and en- joyment thereof, and the defendants claim to act under a legislative provision, vesting in them the power to erect a work, which is in its nature permanent and perpetual. Boston W. P. Co. v. Boston & W. Rail- road, (16 P.) 33 513. See, also, Charles R. Bridge ». Warren Bridge, (6 P.) 23 376. 8. A lessor is not entitled to an injunction to restrain the lessee from obstructing and darken- ing windows in the demised tenement, unless the injury will be irreparable, and cannot be compensated by damages at law. Atkins v. Chilson, (7 Met.) 48 398. 9. A creditor cannot maintain a bill against a corporation, alleging that it is insolvent, and praying for an injunction to restrain it from making a lease of its property for a long term of years, for a receiver, and a general liquida- tion of its affairs. Pond v. Framingham & L. Railroad, 130 194. [See, also, Corpobation, VIII; IX.] 10. Injunctions issue against parties, not against courts; and a court of chancery is not the proper tribunal to correct errors and irregu- larities of inferior tribunals. Gregg v. Massachusetts Medical Society, 111 185. 11. The court has, therefore, no jurisdiction to restrain a medical society, incorporated under a charter, giving it power to expel members, from proceeding to try a member upon charges, upon the allegation that the body to try him Is wrongfully constituted, and that the proceed- ings are irregular and void. Gregg v. Mass. Med. Society, 111 185. [For the rules relating to the right of a party to a contract, to an injunction against the violation thereof, wnere the contract stipulates for the pay- ment, in case of a breach, of a sum as a penalty or liquidated damages, seepost, II, (3).] (2.) Bond; punishing violation of in- junction. 12. For rulings relating to the sums recover- able by way of interest, under the particular circumstances of the case, upon a bond given upon granting a temporary injunction, to restrain the sale of real property under a power of sale contained in a mortgage, which was subsequently dissolved. Poster v. Goodrich, 127 176; Good- rich «. Poster, 131 217. 13. One, who has actual notice of an order for the immediate issuing of an injunction, and disobeys the terms of it as ordered, is guilty of contempt, and may be punished therefor; but where the order is that the injunction issue upon filing the bill, there can be no contempt until the bill is filed. Winslow v. Nayson, 113 411. 14. Where an injunction prohibited the defendant from collecting royalties, under a license.givento the plaintiff to use a patent; and the plaintiff in the suit, commenced also a similar suit in a United States court against another defendant, a foreign corporation, in which he paid into court a sum, to cover such royalties as the court might find to be due to the defendant in that suit under the license; and the defendant enjoined, transferred to the defendant in the United States court all its interest in the fund, to enable the latter to get possession of it; it was held that this was a violation of the injunction. Florence S. M. Co. v. Grover & Baker S. M. Co., 110 1. 15. Where the plaintiffs applied for an attachment against the defendants, for a con- tempt in violating an injunction, restraining them from setting back water upon the wheels in the plaintiffs' mill; pending which the parties entered into an agreement, which was made an order of the court, referring it to an engineer to determine and report, as master, to what height the water could be raised, etc., and whether the defendants had raised it, since the injunc- tion; and that meanwhile the water should be kept at the height so fixed, with various special stipulations as to further evidence, etc.; and afterwards they made another agreement, that the engineer might indicate the height to which the dam might be maintained, until he should finally determine the height at which it should be kept; it was held that the plaintiffs, by enter- ing into these agreements, had not waived the right, upon the coming in of the report, to an attachment for violating the injunction, before the agreements were made. Heywood i>. Miner, 102 466. [See, also, Contempt.] INJUNCTION, II, (1), (2). 761 II. Particular Cases. (1.) Staying proceedings. [See, also, ante, I.] 16. A bill in equity cannot be maintained to enjoin the prosecution of an action at law, where the matter of the bill is available in de- fence of the action at law. Fuller i). Cadwell, (6 A.) 88 503; McBride v. Little, 115 308; Jones*. Newhall, 115 344; Williams v. "Wilson, 124 257; Anthony v. Valentine, 130 119; Payson v. Lamson, 134 593. 17. Thus, if a note, and the morlgage to se- cure it, do not correspond, a bill will not lie to restrain an action to recover back the excess paid to the mortgagees, since extrinsic evidence is admissible at law, to show which paper ex- presses the true intent. Payson v. Lamson, 134 593 18. So as to an evidence of indebtedness, ob- tained by a fraud, available as a defence; but if the evidence is likely to disappear, or for any other reason the defence cannot be presented as fully at law as in equity, a bill will lie. Payson «. Lamson, 134 593. 19. An injunction will not be granted after Terdict to stay the judgment, if the party, by proper diligence, might have protected his rights in the action itself. McBride v. Little, 115 308. [As to staying proceedings in another state, see Conflict of Laws, art. 101.] 20. A writ of entry to foreclose a mortgage will not be stayed by injunction, where the questions in controversy can be litigated upon the writ of entry, although the plaintiff offers to redeem. Kilborn v. Robbins, (8 A.) 90 466. 21. A bill to enjoin the collection of a judg- ment, either by action or by execution, will lie ■where it has been partly paid, but the interven- tion of rights of third persons, prevents the ar- rangement from operating in law as a payment. Tompson v. National Redemption Bank, 106 138. 22. An injunction will not be granted to stay proceedings at law, upon notes given by one partner to the other, where a bill is filed for the settlement of the partnership affairs, and the notes were given upon the purchase, by one partner from the other, of a certain portion of partnership stock, as the transaction was not a co-partnership dealing. Grew v. Burditt, (9 P.) 26 365. 23. The assignee of a first mortgage may maintain a bill to enjoin the prosecution of a ™ ol entry to foreclose a subsequent mort- gage which embraces another lot now owned i7,,i t Ma S nee of the second mortgage, and - ^contribute towards the mortgage debt, "inborn v. Bobbins, (4 A.) 86 369. 1 nd ^ P laintm ' cannot be relieved against a Fagment where he has no equity; as where he conspired wrth the defendant to bring a ground- ririrt fS for the Purpose of defeating the ot his wife in certain trust property. Wells v. Smith, (13 G.) 79 207. TfhL^ 6 remed y at law, of a person upon m a tax . or an assessment for a betterment, Vol. 1—96 is illegally laid, is ample, and accordingly chan- cery has no jurisdiction to enjoin the collection of such a tax or assessment. Brewer v. Springfield, 97 153; Loud v. Charlestown, 99 308; Humiewell v Charlestown, 106 350; Norton . Hopkinton, (4 G.) 70 324. 31. Where several persons associated them- selves together, by an agreement in writing, to construct and maintain a reservoir for the use of their mills, and provided that the majority should control the time, manner, etc., of drawing off the water, with various other special powers; it was held that the majority, although they had no occasion to use the water themselves,, could not exact compensation from the minority for the use of the water, or let the water run to waste; and they were accord- ingly enjoined from so doing. Ballou v. Wood, (8 0.) 62 48. 32. For a peculiar and complicated case, aris- ing upon the construction of various deeds, etc., where the court refused an injunction restrain- ing the defendants from drawing more than a stated quantity of water from the common works, on the ground that although the defend- ants, in their answer, insisted upon their right 762 INJUNCTION, II, (2), (3). to take a greater quantity, yet they denied that they had done so or intended to do so, and it did not appear that they had done so, see Bardwell «. Ames, (22 P.) 39 333. 33. In another case for disturbing a water privilege, where the same decision was made for the same reason, the court refused to retain the bill for the purpose of enabling the plaintiffs, hereafter to apply fo'r an injunction, or of aiding them in securing the identity of their right, or of ascertaining its limits and extent; no special and sufficient reason being shown therefor. Pratt v. Lamson, (6 A.) 88 457. 34. Upon such a bill, the burden is upon the plaintiffs to show that their rights have been invaded, although since they acquired their privileges, the defendants have lawfully changed the places and manner of using the water, to which they are entitled, in priority to the plaintiffs. Pratt v. Lamson, (6 A.) 88 457. 35. Upon a bill, by the owner of a mill dam, to restrain a town from opening sluice ways therein, which it claims the right to do, on the ground that the dam, by raising the water over certain highways, is a nuisance, a temporary injunction will not be granted, or if granted ex parte, will be dissolved where it appears that the plaintiff will not suffer any loss which can- not be repaired in damages, and the merits of the controversy will not be affected on the trial. Wing «. Fairhaven, (8 C.) 62 363. (3.) Trade mark) firm name; trade se- cret ; restraint of trade. I See, also. Good Wiix.1 '36. A bill in equity cannot be maintained under St. 1852, Ch. 197; G. S., Ch. 56, § 4; P. S , Ch. 76, § 7, to restrain the fraudulent use of a trade mark, unless it alleges that such use was for the purpose of representing the articles so marked to be manufactured by the plaintiff. Ames v. King, (2 G.) 68 379; Gilman ». Hunnewell, 123 139. 37. The court has no power to restrain by in- junction the use of a trade mark, consisting in part of the name of one with whom some of the defendants were formerly associated as partners, and invented, adopted, and used by them in his lifetime, and used by them ever since; but, under the statute, it will, upon the applicati n of his executors, restrain the use of his name in the business, without having ob- tained his written consent in his lifetime, or that of his executors since his death, although such use has been continued for more than six years. Bowman «. Floyd, (3 A.) 85 76. 38. Where A, after dissolution of his part- nership with B, entered into a partnership with C, under the name of A & Co., and died, and his administrator conveyed to B the right to use A's name in his business, it was held that the administrator and B might join in a bill, to restrain C from continuing to do business, under the name of A and Co. Morse t>. Hall, 109 409. 39. The court will not restrain the use of a label, as infringing upon the plaintiff's trade mark, unless the words, the form of them, and the figures, lines, and devices are so similar, that any person, with such reasonable- care and observation as the public generally may be ex- pected to use, would mistake the one for the other. Gilman «. Hunnewell, 122 139. 40. Where C. E., of E. Place, taught his business to five nephews, and died, and after his death they carried on the same business at different places, one of them, named also C. E., carrying it on at E. Place, and using his uncle's label, it was held that he could not maintain a bill, to enjoin the son of another nephew, from using a label on his articles, stating that he was the son of the successor of " the original C. E., of E. Place." / Emerson ». Badger, 101 82. 41. For additional rulings upon bills to re- strain the use of trade markSj depending upon the peculiar circumstances of each case, see Hallett v. Cumston, HO 29; Sohier •o. Johnson, 111 238; Gilman ». Hun- newell, 122 139; Magee Furnace Co. v. Le Barron, 127 115; Lawrence Man. Co. v. Hosiery Mills, 129 325. 42. One who uses the word "East Indian" in his trade mark, falsely to indicate to the public that his medicines are used, and the formula was obtained, in the East Indies, can- not maintain a bill to restrain the infringement thereof; as that would be to lend the aid of the court to a scheme to defraud the public. Connell v. Reed, 128 477. 43. One who invents or discovers and keeps secret a process of manufacture, whether proper for a patent or not, has a property therein, which equity_ will protect, by injunction, against one who, in violation of a contract and breach of confidence, undertakes to apply to his own use, or disclose it to others. Peabody «. Norfolk, 98 452. A. One who, with knowlege of the facts, undertakes to have the secret communicated to him, may also be made a defendant in the hill and enjoined. Peabody «. Norfolk, 98 452. 45. If the plaintiff dies, pending the bill, it may be maintained by his executor. Peabody e. Norfolk, 98 452. 46. Where one has sold to another his inter- est in, and the good will of, a particular busi- ness, and has agreed not to carry on the same business, he may, if the contract is not void as being against public policy, be enjoined from carrying on such business in violation thereof. Angier v. Webber, (14 A.) 96 211; Dwight v. Hamilton, 113 175; Ropes v. Upton, 125 258. [As to what agreements in restraint of trade are, and what are not, void as against public policy, see Contract, III; Good Will.1 47. Where the defendant has agreed not to do an act under a fixed penalty for the breach, equity will restrain Mm; and semble, that he may be restrained, even if he has paid the pen- alty. Ropes v. Upton, 125 258 INJUNCTION, II, (3), (4)— INN. 763 48 Where, however, the sum stipulated is linui'dated damages, the court will not inter- fere if it appears, from the whole contract, tliat' the payment thereof was in lieu ol per- formance, and an alternative which the defend- ant had the option to adopt; otherwise liqui- dated damages will not oust the court of its jurisdiction; and the latter is the true construc- tion, where there is an express stipulation not to do the act. Ropes ii. Upton, 125 258. See, also, Hooker v. Pynchon, (8 G.) 74 550. I As to when a sum to be paid is regarded as a pen- alty and when as liquidated damages, see, also, CokWct.IV, (3).l 49. A child of a deceased member of a part- nership is not a "legal representative," whose consent to the continued use of the name of the deceased is required by P. S., Ch. 76, § 6; and he cannot maintain a bill in equity to restrain Sllfll USG Lodge v. "Weld, 139 499. 50. If a member of the firm is appointed ex- ecutor of the deceased, his consent, in his per- sonal capacity, does not satisfy the statute. Lodge v. Weld, 139 499. 51. The consent of a retiring member, that the remaing partners should continue to use the firm name, does not authorize one who subse- quently entered the firm to continue to use it, on his becoming the sole member. Lodge «. Weld, 139 499. 52. An order for goods on the firm, addressed to it by the name under which it is doing busi- ness, does not satisfy the statute. Lodge v. Weld, 139 499. (4.) Other matters, [See, also, the different heads of equity jurisdic- tion.] 53. An injunction will lie to restrain the commission of an alleged trespass, where the damage therefrom would be irreparable, but it would only be for the purpose of enabling the plaintiff to test his rights at law And where, in a previous suit brought by the plaintiff, such an act had already been held to be a trespass, and his title was established; and damages would not be an adequate compensation for it; it might .be proper that the act should be restrained by injunction. But in the absence of such circumstances a trespass cannot be restrained by injunction. Washburn v. Miller, 117 376. See, also, Winslow v. Nayson, 113 411. 54. Where, upon a bill to restrain a trespass, the plaintiff is entitled to a decree, the court, to prevent multiplicity of suits, and to do com- plete justice, may, under the prayer for general relief, award damages for the injury already Winslow v. Nayson, 1 13 411. imi 8 ' A . 1)ill ' w fll not lie to restrain a forfeiture, unless there is danger of irreparable injury. Walker v. Brooks, 125 241. 56 But where there is such danger a bill AcLta f° r tuat purpose, as to restrain the ueusnaants irom giving notice to terminate a license to use a patent in a manufacture of the plaintiffs. Florence 8. M. Co. o. Grover & Baker S. M. Co., 110 1. 57. The court will grant an injunction against a city, where a sewer constitutes a pri- vate nuisance to the plaintiff's property; but it will postpone the operation of the injunction to a reasonable time, in order to enable the defend- ant to take adequate measures to remove the nuisance, without unnecessary injury to the public health. Breed ». Lynn, 126 367. See, also, Haskeil i>. New Bedford, 108 208; Boston R. Mills v. Cambridge, 117 Inn and innkeeper. [For rulings as to an indictment against an inn- keeper, see references under Indictment, VIII, 1. Before G. S., Ch. 88, §§ 10, 11; St. 1870, Ch. 338, § 1; P- S., Ch. 102, § 12, it was held that the liability of an innkeeper for his guest's property was as absolute as that of a common earner. Mason ». Thompson, (9 P.) 26 280. 2. Where an innkeeper also kept a livery stable, it was held that he was liable for a harness, delivered at his stable with a horse and chaise, by the bailee of the owner, and stolen; although the bailee, but not the owner, had lodeing or refreshment at his inn. ' Mason «. Thompson, (9 P.) 26 280. 3. A person cannot be subject to the liability of a common carrier, and that of an iunkeeper, at the same time, and with regard to the same property Clark v. Burns, 118 275. 4. The owner of a steamship carrying pas- sengers is not an innkeeper, ahhough the pas- senger pays a round sum for transportation, board, and lodging. Clark «. Burns, 118 275. 5. The common law liability of an innkeeper extends to all movable goods, and money, placed within his inn by a guest, not merely to- such as are necessary for the ordinary travell ng expenses of the guest. Berkshire W. Co. «. Proctor, (7 C.) 61 417. 6. Where an agent of a corporation is robbed, while a guest at an inn, of money delivered to him by the corporation to be expended about its business, the innkeeper is liable to the corporation. Berkshire W. Co. v. Proctor, (7 C.) 61 417. 7. Making an agreement for board by the week, does not change a traveller from a guest into a boarder. Berkshire W. Co. v. Proctor, (7 O) 61 417. 8. Where one carries on, in the same house, the' business of an innkeeper and that of a keeper of boarders, and the circumstances are such as to render it doubtful, whether the plain- tiff was a boarder or a guest, that question is a 764 INN— INSOLVENT. question of fact, to be decided upon all the evidence. Hall v. Pike, 100 495. 9. As to an usage to deposit money or valu- ables with the innkeeper, independently of the statute, see Berkshire W. Co. v. Proctor, (7. C.) 61 417. 10. An innkeeper who gives notice, that he will furnish to his guests free conveyance to and from the station, and hires carriages for that purpose, is liable for baggage lost by an intending guest, on the way from the station to the inn.'thiough the driver's or the carriage owner's want of care or skill. Dickinson «. Winchester, (4 C.) 58 114. 11 Within G. S., Ch. 88, § 1; P S., Ch. 102, § 1, one presumes to be an innholder, who holds himself out to the public as prepared to enter- tain travellers and transient guests, after the manner of innholders, although he sometimes makes special bargains, does not keep his house open at night, places teams, etc., in another's stable, and part of the house is used as a grocery. Comm. ■». Wetherbee, 101 214. 12. Under P. S., Ch. 102, §§12, 16, an inn keeper is liable for the loss of his guest's prop- erty by theft, although the guest fails to comply •with a reasonable r. gulation, if the loss is not attributable to such failure Burbank b. Chapin, 140 123. 13 No error of law appears, which entitles the plaintiff to maintain an appeal upon a judg- ment for the defendant, upon an auditor's re- port finding that the defendant let suites of rooms in his building; that the plaintiff, his tenant, desired more room for stowing trunks; that the defendant permitted him to put them in a general storeroom, where the janitor slept; that the janitor went away, and it was then dis- covered that the contents of the trunks had been solen; that the defendant was not an inn- holder; and was not guilty of gross negligence. Davis v. Gay, 141 531. Inquest. [See Coroner ; Medical Examiner.] Insanity ; insane person. I See, Guardian; Lunatic; "Will, J, (1).] Insolvent ; insolvency. I. General Rules. (1.) To whom the insolvency statutes apply. (2.) Their constitutionality, and effect upon each other. (3.) Effect of the United States bankrupt laws. II. The Court op Insolvency; Review op its Proceedings. (1.) The court, and proceedings therein. (2.) Appeal to the superior court. (3.) Supervisory jurisdiction of the supreme judicial court. III. Application; Warrant; Schedule. (1.) Application by the debtor or a creditor. (2.) Warrant; proceedings Ihereupon. (3.) Schedule; creditors' first meeting. IV. Debts, and Proof thereof. (1.) What claims are, or are not, provable, and to what amount. (2.) When and how proved; expunging. (3.) Creditor having security. (4.) Effect of proof. V. Assignment and Assignee. (1.) Appointment and removal of assignee; his bond. (2.) What passes by the assignment. (3.) Effect of assignment on attachment or other process. VI. General Powers, Dutdss, and Liabili- ties of the Assignee. (1.) Sale of property; purchaser's rights. (2.) Actions and suits by and against him. (3.) Intervening in an action, and continuing an attachment. (4.) Administration; accounting; dividends; surplus. VII. Proceedings intermediate the Assign- ment and the Discharge. (1.) Examination of the debtor. (2.) Examination of a third person. (3.) Creditors' second and third meetings. VIII. Discharge. (1.) When and how granted; form. (2.) When refused; when void if granted. (A.) Defects in the proceedings. (B.) Creditors' dissent or assent. ((7.) Unlawful preferences. (Z>.) Tradesman not keeping proper books. (3.) Effect. (4.) New promise. (5.) Pleading; proving; attacking. (6.) Special judgment to hold sureties. IX. Unlawful Preferences, and otheb Frauds on the insolvent Laws. (1.) Where the assignee may or may not sue or defend. (2.) Evidence. (A.) Generally. (5.) Insolvency. (C.) Intent. INSOLVENT, I, (1), (2). 16& ID.) Reasonable cause to believe. IK) Ordinary course of business. (3.) Indictment of the debtor. X, Insolvent Partnership. XI. Insolvent Corporation. (See Bank, I, (3); Corporation, IX; Insurance Com- pany, III.) ISee, also. Assignment, V ; Bankruptcy; Com- position; Fraud, III; Poor Debtor/] I. General Rules. (1.) To whom the Insolvency statutes apply. 1 A trader is insolvent, within the meaning of the insolvent laws, when he is not in a con- dition to pay his debts in the ordinary course of business, as other similar traders usually do; although his inability is not so great, that he is compelled to stop business, and he may, upon the winding up of his concerns, be able to pay in full. Lee e. Kilburn, (3 G.) 69 594. See, also, Thompson v. Thompson, (4 C.) 58 127. 2. A debtor, who has concealed his property, in order to defraud his creditors, is to be re- garded as insolvent, although he may have sufficient property in money to pay all his debts. Bartholomew ». McKinstry, (6 A.) 88 567; Blake v. Sawin, (10 A.) 92 340. 8. A manufacturer, or manufacturing corpo- ration, selling the manufactured articles, is subject to the same definition of insolvency, as if his or its exclusive business was to buy and sell. J Hazelton v. Allen, (3 A.) 85 114. 4. Qu., whether an infant is subject to the insolvent laws. Butler v. Breck, (7 Met.) 48 164; Farris v. Richardson, (6 A.) 88 118; Winchester v. Thayer, 129 129. See, also, In re Cassier, 139 458. 5. It was held, under the statute of 1838, that an alien resident was entitled to the benefit of the insolvent laws. See G. S., Ch. 118, §«;P.S.,Ch. 157, §16. Judd v. Lawrence, (1 C.) 55 531. 6. Under St. 1855, Ch. 363, an inhabitant of the Commonwealth might take the benefit of the insolvent laws, and obtain a discharge, which would be good against debts contracted in another state while he resided there, if, since he became an inhabitant here, he had con- tracted any debts which he still owed. See, bow, G. S., Ch. 118, § 76; P. S., Ch. 157, Sol. Breed v. Lyman, (4 A.) 86 170. s 7. But not if he owed no debts contracted Dayton v. Crane, (9 G.) 75 250. ™L Un< l er v the statute of 1838 > proceedings ♦WT not . be taken > u P° n a creditor's applica- nt, against a debtor not a resident of the Commonwealth, when the application was made. See, now, G. S., Ch. 118, § 103; P. S., Ch. 157, § 112. Claflin v. Beach, (4 Met.) 4=5 392. 9. But under St. 1844, Ch. 178, such pro- ceedings might be taken against a partnership, where one of the members only had resided in the Commonwealth within a year, but had removed therefrom. McDaniel v. King, (5 C.) 59 469. 10. A street railroad corporation is within the exceptions of the statute relating to rail- road corporations. See St. 1866, Ch. 116, re- pealed by St. 1867, Ch. 215. Central National Bk. «. Worcester Horse Railroad, (13 A.) 95 105. 11. One who removes from another state to this Commonwealth, and contracts debts here, although solely to obtain the benefit of our insolvent law, is entitled to such benefit. McConnell v. Kelley, 138 372 (2.) Their constitutionality, and effect npon each other. [As to the effect of a foreign discharge upon pro- ceedings here, or of a domestic discharge upon foreign debts, see Conflict of Laws, III, (5).l 12. The statutes relating to insolvency have been adjudged to be constitutional, in the fol- lowing cases: St. 1879, Ch. 245, § 4; P. S., Ch. 157, § 81, as to conclusive character of discharge. Kempton v. Saunders, 130 236. St. 1875, Ch. 235; P. 8., Ch. 151, § 3. Powers v Raymond, 137 483. St. 1856, Ch. 284, creating the court of in- solvency, and transferring to it the jurisdiction formerly exercised by commissioners of in- solvency. Dearborn ». Ames, (8 G.) 74 1; Opin. of the Justices, (8 G.) 74 20. St. 1858, Ch. 93. Baker v. Fernald, (12 G.) 78 154. St. 1838, Ch. 163, as to dissolution of attach- ments. Bigelow v. Pritchard, (21 P.) 38 169. 13. G. S., Ch. 118, § 78; P. S., Ch. 157, § 83, prohibiting a nonresident, who has not proved his debt, from reaching property ac- quired after the first publication of the notice, is constitutional. Maxwell v. Cochran, 136 73. 14. None of the provisions of the insolvent laws are unconstitutional, as regards the debtor or his creditors, because they do no,t provide for a trial by a jury, as such proceedings are not according to the course of the common law, and constituted an established branch of the jurisdiction of the courts, when the consti- tution was adopted. O'Neil u. Glover, (5 G.) 71 144; Kempton v. Saunders, 130 236. [See, also, Constitutional Law, III, (8). | 15. St. 1856, Ch. 284, § 36, providing for the issuing of a warrant upon the complaint of an 766 INSOLVENT, I, (2), (3); II, (1). assignee in insolvency, to search for property of the debtor, was unconstitutional. Robinson v. Richardson, (13 G.) 79 454. 16. St. 1860, Ch. 78, purporting to confirm proceedings in insolvency, taken before a person claiming to act as judge, but with no title to the office, and which had therefore been ad- judged to be void, was unconstitutional. Denny v. Mattoon, (2 A.) 84 361. 17. The following decisions have been made as to the application and effect of insolvency statutes, with respect to former statutes: St. 1814, Ch. 178, applies to proceedings com- menced before the enactment thereof, and then pending. Eastman v. Hillard, (7 Met.) 48 429; Eddy v. Ames, (9 Met.) 50 585. St. 1844, Ch. 178, § 4, does not apply to a case where the debtor was previously entitled to a discharge, under the statute of 1838, and had appealed to the supreme court from a with- holding of his discharge. Ex parte Bartlett, (8 Met.) 49 72. See, however, Revere «. Newell, (4 C.) 58 584. St. 1844, Ch. 178, § 5, was not repealed by St. 1848, Ch. 304, § 9. Gates «. Campbell, (8 C.) 62 104. St. 1841, Ch. 124, § 3, applied to proceedings taken before the enactment thereof, and then pending. Ex parte Lane, (3 Met.) 44 213. A debt founded upon a contract, made while the insolvent act of 1838 was suspended by St. 1843, Ch. 71, might be discharged under that act, after it came into renewed operation. Austin v. Caverly, (10 Met.) 51 332. A discharge under the statute of 1838, did not release a debtor from a debt contracted be- tween the enactment thereof, and the time when it went into operation. Washburn t>. Bump, (10 Met.) 51 392. A judgment obtained after that statute took effect, upon a debt contracted before, was barred by a discharge under it. Pierce v. Eaton, (11 G.) 77 398. An action on a note, made before that statute took effect, and supported by an acknowledg- ment made since, was not barred by a discharge. Foster v. Shaw, (2 G.) 68 148. A certificate of discharge under St. 1848, Ch. 304, § 9, was subject to the reservation of St. 1838, Ch. 163, § 7, that a discharge should not release any other person liable for the debt. Sigourney v. Williams, (1 G.) 67 623. St. 1838, Ch. 163, § 12, as to a third meeting, was not repealed by St. 1844, Ch. 178. Sanderson v. Taylor, (1 C.) 55 87. So of § 7 of the same statute, as to a second meeting. Eastman «. Hillard, (7 Met.) 48 420. St. 1856, Ch. 284, transferred to the court of insolvency, jurisdiction over insolvent corpora- tions, as well as individuals. Dearborn v. Ames, (8 G.) 74 1. (3.) Effect of tbe United States bankrupt laws, 18. The bankrupt laws of the United States suspended the operation of the insolvency law's of this Commonwealth, from the time when they respectively took effect, until they were respectively repealed; and upon the repeal of each bankrupt law, the insolvency law of the Commonwealth, previously in effect, was revived in full force. This was accom- plished without legislation; and St. 1842, Ch. 71, suspending the insolvent law of 1838, was unnecessary. Ward v. Proctor, (7 Met.) 48 318; Atkins v: Spear, (8 Met.) 49 490; Gris- wold v. Pratt, (9 Met.) 50 16; Austin v. Caverly, (10 Met.) 51 332; Day®. Bardwell, 97 246; Lothrop s. High- land Foundry, 128 120; Fairbanks v. Belknap, 135 179. See, however, Judd ». Ives, (4 Met.) 45 401. 19. Fraudulent conveyances, after the bank- rupt law was passed, but before it took full effect, would impeach a certificate of discharge, or allow the property conveyed to be recovered back by the assignee in bankruptcy. Swan «. Littlefield, (4 C.) 58 574; Day d. Bardwell, 97 246. 20. The bankrupt law of 1867, took full effect June 2, 1867, and the act repealing it took effect September 1, 1878. Day v. Bardwell, 97 246; Lothrop v. Highland Foundry 128 120. 21. A conveyance, byway of preference, in violation of the insolvent law of the Com- monwealth, made while the bankrupt law of 1867 was in force, is a sufficient cause for insti- tuting proceedings in insolvency against the debtor, after the repeal thereof. Lothrop ■». Highland Foundry, 128 120; Fairbanks «. Belknap, 135 179. 22. After the repeal of the bankrupt law of 1841, creditors of one who was decreed a bank- rupt under that law, butobtained.no discharge, might prove their claims against the debtor, if he afterwards became insolvent under the State law. Fisher v. Currier, (7 Met.) 48 424. See, also, Minot v. Thacher, (7 Met.) 48 348. [See, also. Bankruptcy.;] II. The Coubt of Insolvency; Review op its Proceedings. <1 .) Tbe court, and proceedings therein. 23. The court of insolvency is a court of record, and as such has power to amend its records; and the record, as made up or amended by direction of the judge, is conclusive evidence of the doings of the court. Winchester v. Thayer, 129 129. See, also, Leigh e. Arnold, (5 C.) 59 615; Dearborn «. Ames, (8 G.) 74 1; Batty e. Fitch, (11 G.) 77 184; Marsh «. McKenzie, 99 64. 24. The original papers and records in insolvency, produced and verified by the regis- ter, are admissible in evidence as well as certi- fied copies thereof. Odiorne v. Bacon, (6 C.) 60 185. 25. A commissioner of insolvency who,_ as assignee of A, an insolvent, has a claim against INSOLVENT, II, (1), (2), (3). 7.67 B is so far interested in B's estate, that he has not iurisdiction as commissioner thereon. Blanchard v. Young, (11 C.) 65 341. 26. St. 1856, Ch. 284, § 5, providing that the iudge of an adjoining county should act as judge of insolvency, in case of the inability of the judge of the county to act, by reason of sick- ness, absence, or other cause, did not extend to the case of a vacancy. Grafton Bk. v. Bickford, (13 G.) 79 564. 27. By § 1 of that statute, the judges of insolvency were to be appointed by the gov- ernor and council. Dearborn v. Ames, (8 G.) 74 1. 28. Jurisdiction in proceedings in insolvency, pending when that statute took effect, before a commissioner, vested, upon his death, in the judge Of insolvency, not the judge of probate. 1 n. Fernald, (10 G.) 76 57. 29. Under St. 1851, Ch. 327, a commissioner of insolvency had no jurisdiction to stay the proceedings in case of an insolvent corporation. Cheshire Iron Works v. Gay, (3 G.) 69 531. 30. The proceedings can be taken only in the county where the debtor resides, not in another county where he has a place of business. Hassam v. Hodges, (12 G.) 78 208. 31. A judge of probate and insolvency has no authority, while out of his county, to receive the petition of an insolvent, to decide that its allegations are true, and to direct the issuing of a warrant. > Lee n. Wells, (15 G.) 81 459. 32. Under St. 1844, Ch. 178, a discharge was void, if granted by a judge of probate or a master in chancery, at a court held on the second Mon- day of the month, or by adjournment from one held on that day. Eddy v. Ames, (9 Met.) 50 585. . As to the power of the court to adjourn iaings, see Rice ii. Wallace, (7 Met.) 48 431; Ee- vere v. Newell, (4 C.) 58 584; Green- ough n. Whittemore, (8 G.) 74 193. 34. Semble, that the power to vacate the pro- ceedings upon the application of a creditor whose debt has been proved, does not extend to vacating a discharge. In re Bice, (7 A.) 89 112. (2.) Appeal to the superior court. [See, also, Appeal, II, (1).] m Hi' ^L here a disch a r ge has been granted, the wtnonty and jurisdiction of the judge of in- solvency are exhausted, and the only remedy is ny an appeal to the superior court. An appli- w on to the supreme judicial court will not lie ui such a case. In r Rice, (7 A ) 89 112; Kempton «. Saunders, 132 466. liill he onl 7. cases . m Which an appeal now ws to the superior court in an insolvency cause, e ""Lansing upon an allowance or rejection of a debt, and upon granting the debtor a dis- charge. Bassett v. Hutchinson, (9 A.) 91 199. 37. Under P. S., Ch. 151, §§ 35, 36, an ap- peal does not lie from a decision expunging a claim proved. The remedy is in equity. Woodward v. Spurr, 138 592; Spurr v. Dean, 139 84. 38. Under the statute of 1838, an appeal lay to the supreme judicial court, if the debt ex- ceeded $300 on the day of the first publication of the messenger's notice. Whiting v. Gray, (9 Met.) 50 291.^ 39. One whose claim has been allowed, but from which allowance an appeal is pending, cannot vote as a creditor. Betton ». Allen, (9 C.) 63 382. 40. A creditor's or an assignee's appeal must be claimed in ten days after the demand is allowed or rejected, and must be entered at the term of the superior court, held next after the expiration of fourteen days from the time of claiming it. (G. S., Ch. 118, § 34; P. S., Ch. 157, § 36.) If it is omitted so to be entered, it cannot be entered at a succeeding term, even by consent of the parties; and the record is conclusive evidence of the time of the decision. Palmer v. Dayton, (4 C.) 58 270; Leigh ii. Arnold, (5 C.) 59 615; In re Eddy, (6 C.) 60 28. 41. But if notice of appeal is duly given, and the register omits to record it within the ten days, the record may be amended and the appeal entered, upon petition to the supreme judicial court. Batty v. Pitch, (11 G.) 77 184. 42. A list of claims disallowed at a meeting of the creditors, made ■ and certified by the register, is a sufficient record to enable a claim- ant, whose claim is disallowed, to appeal. Curley v. Squire, 141 509. (3.) Supervisory jurisdiction of the su- preme judicial court. 43. The application to the supreme judicial court may be made by either bill or petition. Cushing v. Arnold, (9 Met.) 50 23; Barnard ®. Eaton, (2 C.) 56 294; Bas- sett ^Hutchinson, ( 9 A.) 91 199; Smith ■o. Warner, 133 71. 44. The court has power to review and cor- rect the decisions of the court below upon matters of fact, and it may allow the parties to introduce evidence, in addition to that before the court below. Lancaster v. Choate, (5 A.) 87 530. 45. A decree affirming the proceedings, upon the petition of the debtor to set them aside, is conclusive against a subsequent application by a creditor to set them aside, on the same and other grounds, even if he had no notice of the first application. Merriam a. Bewail, (8 G.) 74 316. 46. Where the general supervisory jurisdic- tion of the supreme judicial court is invoked by bill or petition in equity, the suit in that court, although it is not technically an appeal. 768 INSOLVENT, II, (3); III, (1). and does not per se vacate or stay the proceed- ings in the court below, is in the nature of an appeal, and its purpose is to review and correct the decisions of the court of insolvency. Winchester v. Thayer, 129 129. See, also, Eastman v. Foster, (8 Met.) 49 19; Barnard v. Eaton, (2 C.) 56 294; Harlow «. Tufts, (4 C.) 58 448; Lan- caster v. Choate, (5 A.) 87 530; Hall v. Marsh, (11 A.) 93 563. 47. The application is properly made by a party, whose rights are affected by an assign- ment in insolvency, where the preliminary pro- ceedings are irregular. Hanson v. Paige, (3 G.) 69 239. 48. Where the court has no jurisdiction, a delay of more than a year is immaterial. Grafton Bk. v. Bickford, (13 G.) 79 564. 49. But delay is evidence of acquiescence; and where the question is one of regularity merely, a great delay is fatal. Lincoln v. Bassett, (9 G.) 75 355. 50. Under the st. of 1838, it was held that the jurisdiction extended to an application by the insolvent's wife, to order the assignee to make provision for her out of her choses in action. Davis c. Newton, (6 Met.) 47 537. 51. And to an application to revise the pro- ceedings against a person, charged with embez- zling, etc., the insolvent's property. Harlow «. Tufts, (4 C.) 58 448. 52. Or by a creditor claiming a lien, to have the lien declared in his favor, without first proving his debt. Mass. Iron Co. v. Hooper, (7 C.) 61 183. 53. Or by a mortgagee to sell the mortgaged property, and apply the proceeds upon his debt, where the master has acted upon it. Barnard v. Eaton, (2 C.) 56 294. 54. But not to revise a compromise, made by the assignee with a debtor to the estate, under the direction of the commissioner. Richards v. Merriam, (11 C.) 65 582. 55. Where the debtor files a bill against the assignee for misconduct, without first applying to the court of insolvency, the bill cannot be maintained. Lincoln v. Bassett, (9 G.) 75 355. 56. A debtor cannot maintain a bill to reduce the allowance to the assignee for his services, unless the estate paid at least fifty per cent of the debts, besides the expenses, as otherwise he has no interest in the allowance. Richards c. Merriam, (11 C.) 65 582. 57. The court has power to expunge a fraudu- lent claim, upon the petition of the assignee, who did not know of the fraud until the expira- tion of the time to appeal. Hill v. Hersey, (1 G.) 67 584. 58. A creditor, whom the debtor has paid, can- not maintain a bill to set aside for irregularity the proceedings/ and to enjoin the assignee from suing to recover back the payment as a preference, if he alleges that the payment was not an unlawful preference. Fuller v. Cadwell, (6 A.) 88 503. 59. A debtor, who has obtained the requisite consent to entitle him to a discharge, and has temporarily left the Commonwealth, may main- tain a bill to set aside a groundless claim proved in his absence, where the time for an appeal had elapsed before he had knowledge of the facts. Foster v. Lamb, (6 A.) 88 560. 60. A creditor, who attaches property after the commencement of the proceedings, and before the assignment, may maintain a bill to set aside the proceedings; but, semble, not if the attachment was after the assignment. Merriam v. Bewail, (8 G.) 74 316. 61. For other adjudications upon bills or petitions to revise the proceedings in insolvency, see Stearns v. Kellogg, (1 C.) 55 449; Thompson v. Thompson, (4 C.) 58 127; Benchley v. Chapin, (10 C.) 64 173; Cheshire Iron Works v Gay, (3 G.) 69 531; Gross v. Potter, (15 G.) 81 556; Conant v. Perkins, 107 79; Viles v. Harris, 130 300; New Bedford Sav. Inst'n v. Hathaway, 134 69; Shepard v. Abbott, 137 224. 62. It is unnecessary and improper, that the judge of insolvency should be made a defend- ant in a bill to vacate the proceedings. Winchester v. Thayer, 129 129. 63. Miter, under the former statutes, where the remedy was by mandamus. Kimball v. Morris, (2 Met.) 43 573. III. Application; Warrant; Schedule. (1.) Application by the debtor or a creditor. 64. It is not necessary that the debtor's peti- tion should state, that he is a resident of the Commonwealth, or of the county. Whiton v. Nichols, (15 G.) 81 95; Ryan t>. Merriam, (4 A.) 86 77. 65. Nor is any formal adjudication requisite, that the statutory facts exist, before the war- rant issues. Holbrook v. Jackson, (7 C.) 61 136. 66. Where a creditor's petition alleges that the debtor has given a mortgage to secure a pre- existing debt, with intent to secure to the mort- gagee a preference, and to defraud creditors, he then being insolvent, and having reasonable cause to believe himself insolvent, it is not necessary that the petition should allege that that the mortgagee also knew, or had reasonable cause to believe, that the debtor was insolvent. Lothrop D.Highland Foundry Co., 128 120. See, also, Thompson v. Stone, (8 C.) 62 103. Dicta in Mx parte Jordan, (9 Met.) 50 292; overruled. 67. Under the G. S. the liability of the debtor to proceedings against him, and his right to a discharge, depend upon his own intent^ and not upon the question whether the assignee might maintain an action to recover back the property, etc., conveyed. Lothrop •». Highland Foundry Co., 1ZH 120. INSOLVENT, III, (1), (2). T69 68. As to what is a fraudulent conveyance within the insolvent law, see Ex parte Jordan, (9 Met.) 50 292, and post, VIII, (2), (C); IX. 69. Where one of the acts enumerated in the statute is set forth, it is not necessary, in pro- ceedings hy a creditor, to allege or to prove that the debtor was, or is, insolvent. O'Neil v. Glover, (5 G.) 71 144. 70. The presentation of the petition is the commencement of the proceedings. Whithead ». Mallory, (4 G.) 70 180. 71. The creditor must allege that the acts compla ned of were committed within the time, before the presentation of the petition, pre- scribed by the statute. Gross v. Potter, (15 G.) 81 556. 72. Under the statute of 1838, it was held that the attachment, which had not been dis- solved by the debtor, included an attachment by trustee process. Kimball v. Morris, (2 Met.) 43 573. 73. Also that it must appear, by the return of the process, that an attachment had been made of the debtor's specifically described real or personal property. Dennis v. Sayles, (11 Met.) 52 233. 74. And a general description of all the real estate of the debtor, in a particular county or town, is not sufficient, without proof that the debtor had real estate there. Dennis v. Sayles, (11 Met.) 52 233. 75. Also that the creditor's right to com- mence proceedings accrued, at the expiration of the statutory time, fixed for a dissolution of the attachment, and the proceedings could not be commenced more than 90 days after that time, although the action had been continued one term by reason of the debtor's absence. Bates s, Chapin, (8 C.) 62 99. 76. The debtor's failure to dissolve an attach- ment of mortgaged chattels suffices, although the property was already under attachment by other creditors, whose lien was subsequently lost by failure to comply with the mortgagee's demand, and the mortgagee has replevied the chattels from the officer, without demand of payment. Wheeler v. Bacon, (4 G.) 70 550. 77. A judgment, an execution on which has been returned satisfied by a levy on real prop- erty, not owned by the debtor, is not such a demand," as will authorize proceedings there- upon, until the levy has been set aside upon Dennis v. Sayles, (11 Met.) 52 233. See, also, Dennis v. Arnold, (12 Met.) 53 ™i : Wareham Sav. Bk. v. Vaughan, 133 524. tJ 8 ' A , ny "^ of the debtor, by which his true me and ownership of property are kept from we view of his creditors, with intent to prevent ™ being taken on legal process, is a conceal- ment within the statute. O'Neil a. Glover, (5 G.) 71 144. ™. A balance due to a creditor, upon an account consisting of many disputed items, if t actually amounts to $100, is sufficient for ™ e foundation of the proceedings, although Vol, 1—97 the creditor has commenced an action there- upon. O'Neil v. Glover, (5 G.) 71 144. 80. An insufficient specification of the facts constituting the charge, may be amended by leave of the court, by filing a specification, even at an adjourned day. O'Neil v. Glover, (5 G.) 71 144; Mer- riam v. Sewall, (8 G.) 74 316. 81. A signature "A, by B, his attorney," and a verification, by B's affidavit, to the effect that the petition is true, according to his best knowledge and belief, suffices. O'Neil v. Glover, (5 G.) 71 144. 82. But a signature, "Boylston Bank, by' T. G.," there being no evidence of T. G.'s authority, is insufficient to give jurisdiction. Merriam v. Sewall, (« G.) 74 316. 83. It is not necessary that the judge should make a record of the proceedings, where he refuses to issue the warrant: a refusal for insufficiency of proof is a sufficient adjudica- tion, that the requisite facts did not appear to his satisfaction. Randall v. Barton, (6 Met.) 47 518. 84. If, after the riling of the petition, a fraudu- lent agreement is made between the debtor and the petitioning creditor, to pay_ the lalter's debt, and that the petition be dismissed, other cred- itors may come in and prosecute it. Foster v. Goulding, (9 G.) 75 50. 85. The facts stated must be proved by legal and competent evidence; and taking a witness's statement, without oath or affirmation, is suffi- cient to set aside the proceedings. Merriam v. Sewall, (8 G.) 74 316. 86. So where an affidavit was taken in an- other state, without complying with the statu tory requisites as to notice. Steams v. Kellogg, (1 C.) 55 449. ■ 87. The allegations in the petition are not evidence upon the hearing. Ex parte Jordan, (9 Met.) 50 292. C2-) "Warrant ; proceedings thereupon. 88. Since the statute of 1844, if a warrant is issued upon a creditor's petition, without pub- lication of a notice as the statute requires, the proceedings are void. Thompson v. Snow, (4 C.) 58 121. See, also, Buck v. Sayles, (9 Met.) 50 459. 89. The rule was different under the. statute of 1838. Kimball v. Morris, (2 Met.) 43 573; Wheelock «. Hastings, (4 Met.) 45 504. 90. It is no objection to issuing the warrant, that the debtor has no creditors, whose debts are not secured, except the petitioner. O'Neil v. Glover, (5 G.) 71 144. 91. A messenger with a warrant is not justi- fied in taking possession of property, held under a valid atlachment. Cutter v. Gay, (8 A.) 90 134. 92. He is justified in locking the debtor's store, containing property seized by him, and 770 INSOLVENT, in, (2), (3); IV, (1). taking the key into his own possession, although the store was then unoccupied. Stevens v. Palmer, (12 Met.) 53 464. 93. He may set up as a defence to" an action, by a person to whom the insolvent has under- taken to sell the goods, the title of another, to whom the insolvent has undertaken to sell them. Ropes ii. Lane, (9 A.) 91 502. 94. He is not liable to an action by the debtor, for retaining possession of t :e goods, after dis- missal of the creditor's petition, and after the latter has appealed and the decision has been affirmed, unless he has retained them an un- reasonable time. Stevens ». Palmer, (12 Met.) 53 464. 95. He is liable to an action of replevin, without a previous demand, in favor of one, from whom the debtor procured by fraud, goods seized by him. Bussing v. Rice, (2 C.) 56 48. 96. The publication of notice of issuing the warrant is notice to all persons, whether they had actual noti e thereof or not. Butler « Mullen, 100 453. See, also, Edwards v. Sumner, (4 C.) 58 393; Hall v. Whiston, (5 A.) 87 126. (3.) Schedule ; creditors' first meeting, 97. "Where the proceedings are taken by a creditor, the failure of the debtor to furnish to the messenger a schedule of his creditors, before the choice of an assignee, and the consequent want of notice to several creditors of the first meeting, are not sufficient grounds to vacate thi proceedings upon a bill in equity. Shepard v. Abbott, 137 224. 98. Qu., whether upon a voluntary petition, the proceedings should stop, for want of a formal notice to creditors, where it becomes impossible to give it. Shepard v. Abbott, 137 224. 99. Where it was sought to impeach a dis- charge, on the ground that the debtor did not file the requisite schedules before the commis- sioner in insolvency, it was heli that a state- ment in the record of the proceedings before the commissioner, that the debtor did produce such schedules, was sufficient evidence of the fact, in the absence of evidence to the contrary. Lothrop v. Tilden, (8 C.) 62 375. [As to the first meeting of creditors, see, also, post, IV, (2); V, (1).] TV. Debts, and Proof thereof. (1.) What claims are, or are not, prova- ble, and to what amount. [For cases where set offs are allowed, see Set off. For additional rulings as to provable debts, see, ante, III, (1); and Cobpobation, art. 129.] 100. The holder of an indorsed note, not having security from the maker, is entitled to '/prove the note against the maker in insolvency, 1 without first having recourse to the indorsers. Viles v. Harris, 130 300. See, also, Agawam Bk. v. Morris, (4 C.) 58 99; Meedo Nelson, (9 G.) 75 55. 101. And where an indorser was secured by a mortgage, and the holder thus proved the note, and the assignee advertised the mortgaged prop- erty for sale, representing that the s am secured by the mortgage was due thereupon, and the indorser purchased it; and afterwards the as- signee was allowed in his account, as a loss, the difference between the appraised value and the purchase price, it was held, there being no fraud, that there could be no redress against either the indorser or the assignee. Viles 1>. Harris, 130 300. 102. When the holder of a promissory note, by agreement with a solvent surety, proved the note in insolvency against another surety, and then assigned the note and his claim to the sol- vent surety, who paid him in full, the proof was expunged, and the surety allowed to prove only half the claim. New Bedford Law Inst. v. Hathaway, 134 69. 103. A judgment against an insolvent so far merges the cause of action, that the latter can- not be proved or allowed. Bangs ». Watson, (9 G.) 75 211. 104. And where judgment was recovered three days after publication of notice that the warrant was issued, it was held that the original demand could not be proved, because it was merged in the judgment, and the judgment could not be proved, because it was not in exist- ence when the notice was published. Sampson v. Clark, (2 C.) 56 173. 105. A debt payable in work is provable. Barker v. Mann, (4 Met.) 45 302. 106. A stockholder's qualified liability for corporation debts is not provable. Kelton v. Phillips, (3 Met.) 44 61; Bangs v. Lincoln, (10 G.) 76 600. 107. The holder of a note or bill of exchange may prove it against the estate of each of the parties, and receive dividends on the whole, until he is paid in full; but if part of it is paid, he' can onlv prove for the balance. Sohier v. Loring, (6 C.) 60 537; Blake v. Ames, (8 A.) 90 318. 108. If a second dividend from one of the estates, will, with a former dividend from each of them, exceed the claim as proved, although it will amount to less than the claim, with inter- est, the holder can receive only enough to sat- isfy the claim as proved, until all others are paid in full as proved. Blake v. Ames, (8 A.) 90 318. 109. If, after proving the note against the in- dorsees estate, the holder surrenders it to the maker in exchange for his new note, he is not entitled to any further dividend, and must re- fund what he has received, although he has re- tained the old note as collateral, and sold it. Dearth ». Hide & L. Nat. Bk., 100 540. 110. ' An acceptance taken up by a third party fdr the accommodation of the drawer, is not provable as such, but as money paid. '■Bsiflen v. Cuyler, (lO.d.) 64 476. INSOLVENT, IV, (1), (2),. (3). Ill 111. A claim cannot be proved, where it was contracted by an agent, without disclosing the principal, although the proceeds were applied to the insolvent's use. Bank of British N. America «. Hooper, (5G.) 71 567. 112. A promissory note is not provable against an indorser, until the maturity thereof. Stowell v. Richardson, (3 A.) 85 64. 113. A note given as collateral security for a guaranty, for which the guarantor is still re' sponsible, is provable. Moseley v. Ames, (5 A.) 87 163. 114. A judgment in favor of an assignee, in an action to recover property from a preferred creditor, under St. 1841, Ch. 124, § 3, is not an absolute bar to proof of the debt, as the assignor may recover, if the preferred creditor " had rea- sonable cause to believe " that the debtor was insolvent, while actual knowledge is required to bar bis claim. Howland v. Mosher, (12 C.) 66 357. 115. An accommodation note is not provable against the maker, where, by arrangement with the person for whose accommodation it was made, it was afterwards indorsed by another, and taken up by him. Dewey v. Living, (3 A.) 85 22. 116. A claim for unliquidated damages, for failure to fulfil a contract of sale, is provable. Lothrop v. Reed, (13 A.) 95 294. 117. So is a claim not barred by the statute of limitations, at the time of the first publica- tion, although the statute has run when it is offered for proof. Minot v. Thacher, (7 Met.) 48 348. 118. A bond of indemnity to one who has not been compelled to pay, nor been sued, is not provable. Kingman v. Powle, (5 A.) 87 133; Wilson v. Bryant, 134 291. 119. Where an attaching officer refuses to give up the attached goods to the assignee, and they are taken from him by a writ of replevin, the plaintiff cannot prove for the expenses of keeping the goods after demand. Kussell Paper Co. ■». Smith, 135 588. 120. Where the insolvent, by a clause in a deed, became liable to pay a debt secured by t Uie mortgage of his grantor, and the debt sub- ;. , .sequently became the property of the grantor's ,.-Vte, it was held that the grantor could not , prove for the breach of the implied contract. Wilson v. Bryant, 134 291. 121. St. 1884, Ch. 293, does not enable a wife to prove a claim against her husband's estate, ior money loaned upon his note. Woodward v. Spurr, 141 283. [See, also. Husband and Wife, IV, (2); IV, (4).] «•) When and how proved; expunging. to nL U i lder the statute of 1838, claims may »e proved !at any regular meeting. Mmot*. Thacher, (7 Met.) 48 348. , davtn^ 9 '* "^ting may be. adjourned from ' 4&nreeting mm? ™ 7 ^ VX °^ Bt m Rice v. Wallace, (7 Met.) 48 431. See, however, Revere i>. Newell, (4 C.) 58 584. 124. Under the statute of 1838, the personal examination of a creditor proving his claim, after taking the formal oath, is in the nature of a cross examination. He may be allowed to consult counsel, in the discretion of the com- missioner. Peabody v. Harmon, (3 G.) 69 113. 125. Semble, that the commissioner has no power to imprison him for contempt, for refus- ing to answer questions thereupon. Peabody v. Harmon, (3 G.) 69 113. 126. If a claim is contested by the assignee, on the ground of a previous discharge of the debtor in insolvency, the validity of the former discharge may be impeached by the claimant, and the question decided by the commissioner. Gates v. Mack, (4 C.) 58 48. 127. The judge has no power to expunge a claim, which has been duly allowed at a previous meeting, without the claimant's consent. Hall v. Marsh, (11 A.) 93 563. 128. But under the statute of 1838, the master in chancery has power to allow a creditor to withdraw a claim which he has proved; and in such a case, the claim is no more barred by the discharge, than if it had not been proved. Safford v. Slade, (11 C.) 65 29. 129. Under that statute, he may waive or withdraw his claim, for the purpose of setting it off in an action against him, upon a covenant of warranty to the debtor and bis assigns, although the master refuses to allow him to do so, and orders a dividend upon the claim Bemis 11. Smith, (10 Met.) 51 194. 130. See, also, as to expunging a fraudulent claim, upon the assignee's petition to the supreme judicial court. Hill v. Hersey, (1 G.) 67 584, .cited ante, art. 57. 131. If an indorsee has proved a note, with an accommodation indorsement, against the maker and indorser, and by his vote has se- cured the discharge of the indorser, he cannot, on withdrawing his proof, compel an assign- ment to himself of a mortgage, given to the maker by the indorser, to secure Mm against the indorsement. New Bedford Sav. Inst'n v. Fairhaven Bk.,(9A.) 91 175. [As to expunging, see, also, ante, art. 102; post, art. 150.] (3.) Creditor having security, C^ee, also. Surety; and for analogous eases, see Executor and Administrator, VI.] 132. The rule, relating to a creditor having collateral security, does not go beyond prevent- ing parties from taking a larger proportion of fund, than they, or those whom they represent, may be supposed to have contributed to it. Where the principal and the collateral claim represent two distinct contributions, there is 172 INSOLVENT, IV, (3), (4). nothing in the policy of the insolvent law opposed to double proof. Miller's River Nat. Bk. . Vaughan, 133 634. See, also, Dennis v. Sayles, (11 Met.) 52 233; Dennis *. Arnold, (12 Met.) 53 449; Perry «. Perry, (2 G.) 68 826. 140. "Where the owner of land mortgages it, and subsequently sells it, the mortgagee, after Bale of the land under a power in the mortgage, "without an order of the court of insolvency, may prove against the mortgagor for the balance of the debt. "Wilson v. Bryant, 134 291. 141. But if the equity of redemption belongs to the debtor, and the creditor joins with the assignee in selling, without the order of the court, he cannot prove for the balance. Smith v. "Warner, 133 71. 142. An infant, to whom a mortgage was given to secure a debt, may, after attaining ma- jority, have the mortgaged property sold under the statute, and prove for the balance of the debt. Barnard v. Eaton, (2 C.) 56 294. 143. "Where a mortgagee of chattels com- mences a suit for the debt, and causes the mort- gaged chattels to be attached, and then waivea the attachment, and suffers them to go into the custody of the messenger, he may proceed for a sale under the statute, and to prove the bal- ance of the debt. Barnard e. Eaton, (2 C.) 56 294 _ 144. If an application for such a sale is re- sisted, on the ground that the mortgage was fraudulent, or an unlawful preference, a gen- eral allegation to that effect will not suffice; the facts must be specifically set forth, and all the evidence laid before the court. Barnard v. Eaton, (2 C.) 56 294 145. And the court must pass upon the valid- ity of the mortgage, before ordering a sale Day v. Lamb, (6 G.) 72 523. 146. Under the statute of 1838, a commis- sioner, upon the application of a second mort- gagee, may order the sale of his interest, hut not of the whole estate. Day v. Lamb, (6 G.) 72 523. 147. A creditor may prove his debt, without surrendering a mortgage therefor, upon the separate estate of the insolvent's wife. "Whitman v. "Winchester, (15 G.) 81 453. 148. "Where the assignee, in an action for conversion of chattels of the insolvent, held by the creditor upon a claim of lien for the debt, and sold by him, recovers for nart of the pro- ceeds, the creditor may prove his debt, deduct- ing so much of the proceeds as has not been thus recovered. Black v. Mitchell, (1C G.) 81 381. 149. It is no objection Co the proof of a debt, that an ind^r.cr or guarantor holds security therefor, ;iv^ 1 ? f :e~ insolvent, which has not been st rrend::c^, even -2 the debt is proved at the request of tie indorser or guarantor. Agawam Bk. o. Morris, (4 C ) 58 99; Meed t>. Nelson, (9 G.) 75 55; Provi- dent Sav. Inst'n v. Stetson, (12 G.) 78 27. (4.) Effect of proof. 150. Proof of a debt does not enable the creditor proving it to contest the claims of other creditors, and to apply to the supreme judicial court to expunge them. That power is conferred solely upon the assignee. Freeland v. Mechanics' Bk., (16 G.> 82 137. INSOLVENT, IV, (4); V, (1), (2). rra 151 As the statute makes no provision for iie discharge of an insolvent corporation, ravine a debt against a corporation, and re- eivins ; a dividend thereupon, will not bar a nit against the corporation, for the rest of the 6 ' Cohurn v. Boston Papier Mache M. Co., HO G ) 76 248. See, also, Johnson v. Somerville D & B. Co., (15 G.) 81 216- Athol Nat. Bk. i>. Hingham Man. Co.', 121 399. 152. Where, while an action is pending gainst an individual, he goes into insolvency, tie plaintiff may prosecute the action to judg- nent, although he has offered the claim in suit "^Barkers. Haskell, (9 C.) 63 218 153. A creditor who has proved his claim, md received a dividend thereupon, and the ;osls of a pending suit, is not estopped thereby irom contesting the validity of the insolvent's lischaree. torse ». Reed, (13 Met.) 54 62. 7. Assignment and Assignee. (1,) Appointment and removal of assig- nee ; his bond, 154. Before St. 1856, Ch. 287, the same person might be clerk and assignee. Ryan ». Merriam, (4 A.) 86 77. 155. Where the assignee has corrected his fault before it caused any harm, and no wrong intent appears, the court will not remove him, although his proceedings did not conform to the statute. Rogers e. Jackman, (12 G.) 78 144. 156. An appeal does not lie to the superior court, from an order directing the election of a new assignee; the remedy is by application to the supreme judicial court. Bassett «. Hutchinson, (9 A.) 91 199. 157. If an assignee has settled and obtained an allowance of his final account, and paid all the dividends ordered to be paid, his executors cannot maintain a bill to set aside the appoint- ment of a new assignee, although it does not appear that any of the insolvent estate remains undistributed. Bassett 11. Washburn, (9 A.) 91 197. 158. An action upon an assignee's bond may he brought, without a previous affidavit and order, in the name of the commissioner, and lor his benefit, to recover certain fees, and also for the benefit of certain creditors, who have not been paid the dividends declared to them. Chapin «. Avery, (4 G.) 70 286. (2.) What passes l>y the assignment. -Us to property without the Commonwealth, see Wnitjct of Laws, III, (1); III, (5). Tor additional "Uinga on this subject, see peat, VI.] 159. An assignment under the insolvent laws relates back to the first publication of the notice, and vests all the debtor's property in the assig- nee, so that, from that time, no conveyance or transfer of it has any validity against the assig- nee, whether the other party thereto did or did not know of the insolvency proceedings. Butler v. Mullen, lOO 453. See, also, Andrews v. Southwick, (13 Met.) 54 535; Gallup v. Robinson, (11 G.) 77 20; O'Neil v. Harrington, 129 591, and post VI, (2). 160. An assignment under the insolvent laws operates by force of the statute, and not as a conveyance from the debtor. Sibley v. Quinsigamond Nat. Bk., 133 515. 161. Property, held in trust by the debtor, is not his property, within the meaning of the statute, and does not pass by the assignment. Sibley v. Quinsigamond Nat. Bk., 133 515. See, also, Hunnewell «. Lane, (11 Met.) 52 163; Chace v. Chapin, 130 128; Holmes «. Winchester, 133 140. 162. The rule extends to stock in a national bank, standing in the name of the insolvent, although the bank had no notice of the trust. Sibley «. Quinsagamond Nat. Bk. , 133 515. 163. And to land, of which he holds the legal title , upon an implied trust for another, although no declaration of trust has been recorded. Low ij. Welch, 139 33. 164. And to property of a third person, put into the hands of the insolvent, for the purpose of giving him a false credit. Audenried « Betteley. (5 A.) 87 382. 165. The assignee takes no betten title than the debtor, to land held by him under a con- veyance, fraudulent as to the grantor's cred- itors. Pratt v. Wheeler, (6 G.) 72 520. [As to the assignee's right, under the existing statute, to avoid conveyances to defraud creditors, or giving unlawful preferences, see post, VI, (2); VIII, (2).] 166. He succeeds to all'the insolvent's rights, with respect to land which the latter has con veyed, taking back a defeasance. Stetson v. Gulliver, (2 C.) 56 494. 167. Or with respect to reducing to possession the choses in action of the insolvent's wife. Davis v. Newton, (6 Met.) 47 537. 168. Or with respect to a distributive share in the estate of a decedent, who died before the first publication of the notice, even though after the application; and it is his duty to give to the administrator a bond to refund, where that may lawfully be required. Davis «. Newton, (6 Met.) 47 537. 169. Or in an estate in remainder. Pierce «. Lee, (9 G.) 75 42. 170. Or in a trade mark, not personal in its character. Warren v. Warren Thread Co., 134 247. 171. Or in chattels mortgaged, bona fide, by the insolvent, if the mortgage is duly recorded before the first publication of the notice, al- though after the messenger took possession. Briggs v. Parkman, (2 Met.) 43 258; Howe v. Bartlett, (8 A.) 90 20. ra INSOLVENT, V, (2), (3). 172. But where the mortgage was not re- corded according to law, and possession was retained by the insolvent, the assignee has the be'tter title to the goods. Bingham v. Jordan, (1 A.) 831 373. 173. So where the mortgage, although exe- cuted before the proceedings in insolvency, was delivered by the insolvent to a third person without the mortgagee's knowledge, and did nqt come to the latter's possession, until after the assignment. Dole v. Bodman, (3 Met.) 44 139. 174. A right of action, for damages for a per- sonal injury, does not pass to the assignee, un- less judgment has been recovered. Stone v. Boston & M. Railroad, (7 G.) 73 539. 175. But a right of action for tort, in the nature of waste, passes. Bullock v. Hayward, (10 A.) 92 460. 476. So does a right of action, to recover threefold the amount of usurious interest paid. Gray «. Bennett, (3 Met.) 44 522; Tamplin v. Wentworth, 99 63. 177. The assignment does not revoke an order drawn, bona fide, by the debtor on one of his debtors, to pay money to another per- son, and accepted by the drawee. Bourne v. Cabot, (3 Met.) 44 305; Butler v. Breck, (7 Met.) 48 164. 178. But where the order does not transfer any interest %o the person who takes it, ! but operates merely as an authority to the drawee, to, sell property and pay over the proceeds, it is revoked by the. assignment, and the property passes to the assignee. Fuller v. Emerson, (7 C.) 61 203. 179. The insolvent's rights in a policy of in- nura'nce upon his life, payable to him if he sur- vives a day, subsequent to the first publication of the notice, passes to the assignee. Bassett v. Parsons, 140 169. (S.) Effect of assignment on attach- ment or otber process. [As to' continuing an attachment by order, see post, VI, (3).] 180. One who is charged as the insolvent's trustee, by judgment in a trustee process, and pays the same to the judgment creditor, before the first publication of the notice, is protected agains.t the assignee, although he had notice of the issuing of the warrant. Clarke ». Minot, (4 Met.) 45 346. 181. But'if the judgment was not rendered uritil after the first publication, the trustee is not protected, although he had no notice of the insolvency proceedings. Butler v. Mullen, IOO 453. 182. If one of two defendants in a bill in equity becomes insolvent, and his assignee, does not intervene, the plaintiff may continue to prosecute the suit against him, ■ Squire v. Lincoln, 137 399; Powers 9. Raymond, 137 483. 183. If attached goods have been sold by consent of parties, the assignee is entitled to the proceeds. Wheelocko. Hastings, (4 Met.) 45 504. I 184. An attachment after the first publication is invalid. Gallup 0. Robinson, (11 G.) 77 20. 185. The dissolution of an attachment by an assignment discharges the attaching officer's bailee, although he is indemnified. Spragues. Wheatland, (3 Met.) 44 416; Andrews*. Southwick, (13 Met.) 54 535. 186. An officer, who delivers the attached property to the assignee, is not liable therefor to the attaching creditor, although the assign- ment and all the proceedings are subsequently annulled, for want of notice to the debtor, in involuntary proceedings. Penniman ». Freeman, (3 G.) 69 245. 187. If, after the attachment of mortgaged chattels, the mortgagor goes into insolvency, it is the duty of the officer to deliver them to the mortgagee, not to the assignee. Howe v. Bartlett, (8 A.) 90 20. 188. An attachment, upon a writ against the insolvent, will render the attaching creditor liable to a purchaser, in possession under claim of title, when the attachment was made, although the sale was made in fraud of cred- itors. Hubbard v. Lyman, (8 A.) 90 520; Pomroy «. Lyman, (10 A.) 92 468. 189. Where a citizen of this Commonwealth has attached, in a suit in another state, property of an insolvent residing here, the court will enjoin him from proceeding,' unless there is some valid claim or lien in the other state, which would divert the property from the assignee. Dehon v. Foster, (4 A.) 86 545. See, I alsp, Pomroy s. Lyman, (10 A.) 92 468. j 190. A levy of real property upon execution, after the first publication, is not valid against the assignee,.. although the assignment is not recorded in the county .where the real property lies, and the creditor has.no actual notice; and the assignee may maintain a bill in equity to set it asidel Hall v. Whiston, (5 A.) 87 126; Merrick v. Bragg, 102 437. 191. If a levy js made before, although not completed until after the first publication, it is good against the assignee. Gushing v. Arnold, (9 Met.) 50 23. 192. Since St. 1880, Ch. 246, § 7; P. S., Ch. 157, § 46, took effect, the assignment does not dissolve an attachment, if it was made more than four months before the issuing of the war- rant, although the notice was published before the enactment of the statute. O'Neil v. Harrington, 129 591; Sul- lingss. Ginn, 131 479. 193. Where property of an insolvent was attached more than four months before the insolvency proceedings, and while they were pending he was defaulted; whereupon the plain- tiff, upon suggestion of the proceedings, and before St. 1885, Ch. 59, took a special judgment against the attached property, upon which a INSOLVENT,. VI, (1), (2). 775 special execution was issued and returned satis- fled in part only; it was held that this was a final judgment, and that the plaintiff could not have a further judgment or further process for the balance of his debt. Gay v. Raymond, 140 69. [For other oases relating to the dissolution of an 1)T attachment by proceedings in insolvency, see — t, IV, "" ' AlTACHMEKT, VI. General Powers, Duties, and Liabili- ties of the Assignee. (1.) Sale of property ; purchaser's rights. 194. An action may be brought in the name Df the insolvent, by and for the benefit of one, who has purchased a chose in action from the assignee, and where the promise was made jointly to him and another, the insolvent may be joined with the latter. Williams v. Fowle, 132 385. See, also, Drury®. Vannevar, (5 C.) 59 442: Stone v. Hubbard, (7 C.) 61 595; May- hew v. Pentecost, 129 332; Eeed v. Paul, 131 129. 195. A purchaser, in good faith, from an as- iignee, is not required, in order to sustain his itle, to show that the assignee has complied nth the directions for a sale contained in St. 1861, Ch. 104, § 2; P. S., Ch. 157, § 50.. Tuite 1). Stevens, 98 305. 196. A purchaser from an assignee in insol- vency of real or personal property, conveyed ir mortgaged to defraud creditors, has the same ight which the assignee has, to assail the f raudu- ent conveyance or mortgage, if there is un- :quivocal_ evidence, either in the previous acts if the assignee, or the terms of the conveyance, hat he has elected to treat it as void. Gibbs v. Thayer, (6 C.) GO 30; Free- land v. Fi-eeland, 102 475. 197. But under a conveyance of all the right nd title of the assignee, subject to a mortgage, he grantee is not authorized to contest the va- idity of .the mortgage. Tuite «. Stevens, 98 • 305. W 8 - Before the statute, G. S., Ch. 118, § 100; . S., Ch 157, § 109, an action could be brought ipon a claim sold by an assignee, only in his iame. Hay v. Green, (12 C.) 66 282. 199. If the action is brought, since the statute, a the name of the assignee, the defendant may et up in his answer as a defence, that before le commencement of the action, the assignee ad sold it to another. Cushman v'. Davis, (3 A.) 85 99. 200. Where an insolvent commenced a real ction in his own name, before his insolvency, Ml afterwards purchased the land from his as- gnee, and took a deed thereof; it was held wt he might prosecute the action in his own ame to judgment, if a plea in abatement had ot been filed. Gerrish v. Gary, (1 A.) 83 213. (2.) Actions and suits by and against htm. [For cases where the assignee may maintain an action to recover, by reason of a fraudulent or other unlawful act of the debtor, see post, IX.] 201. The assignment, purporting to be exe- cuted by the proper officer, although not le- corded, proves itself, and is conclusive evidence of the right of the assignee to sue, without proving the insolvency proceedings, If those are defective, the remedy is by application to the supreme judicial court. Doane v. Eussell, (3 G.) 69 382; Howes v. Burt, 130 368. See, also, Partridge v. Hannum, (2 Met.) 43 569; Wheelock v. Hastings, (4 Met.) 45 504; Penniman v. Freeman, (3 G.) 69 245; Merriam «. Sewall, (8 G.) 74 316; Her- sey v. Jones, 128 473. 202. An assignee may maintain an action in his own name upon any instrument, or other claim, which passes by the assignment; or he may sue in the debtor's name; or he may be admitted to prosecute an action brought by the debtor, although he does not move for leave to . do so at the first term. Pitts v. Holmes, (10 C.) 64 92; Weth- . erbee ». Maitin, (10 G.) 76 245; Bacon ». Williams, (11 G ; ) 77 222. 203. In such cases, the assignee succeeds to the debtor's rights, and is subject to the same set offs and other defences, as the same existed and were available, at the time of the first pub- lication of the notice. Minot v. Thacher, (7 Met.) 48 348 Willard v. Clarke, (7 Met.) 48 435 Aldrich v. Campbell, (4 G.) 70 284 Collester v. Hailey, (6 G.) 72 519 Parker v. Sanborn, (7 G.) 73 191. 204. So as to the enforcement of a mechanic's lien. Morton v. Austin. (12 C.) 66 389. 205. The assignee may maintain a writ of error; but he cannot avoid a judgment by plea and proof. Johnson »..Thaxter, (7 G.) 73 242; Johnson v. Thaxter, (12 G.) 78 198. 206. He cannot maintain a petition, under • the statute, to compel a prior mortgagee 1o bring an action to test the validity of the mort- gage. Hill «. Andrews, (12 C.) 66 185. 207. He may maintain a bill in equity for an accounting with respect to partnership matters, where that is necessary to enable him to obtain a note, transferred to a partnership creditor in violation of the insolvent law. Holmes «. Woodw^orth, (6 G.) 72 324. 208. He may maintain a bill in equity to compel a transfer to him by a fraudulent mort- gagee, of the insolvent. Bartholomew v. McKinstry, (2 A.) 84 448. 209. Or to set aside a mortgage or other con- veyance by the insolvent in fraud of creditors, as against any person, except a grantee bona fide, for value, and without notice. Clark v. Jones, (5 A.) 87 379; Hub- bell v. Currier, (10 A.) 92 333- Sher- man v. Fitch, 98 59. [See, also, pqs', IX.l m INSOLVENT, VI, (2). 210 But not if the property consisted of articles exempt from attachment. Rayner v. Whicher, (6 A.) 88 292. 211. Or if the remedy by writ of entry will suffice. Metcalf «. Cady, (8 A.) 90 587. See, also, Thayer v. Smith, (9 Met.) 50 469; .Woodman v. Saltonstall, (7 C.) 61 181; Pratt v. Pond, (5 A.) 87 09; Clark v. Jones, (5 A) 87 379; Sherman v. Fitch, 98 59. 212. He cannot maintain a writ of entry against the insolvent's wife, to recover land, paid for with money earned, partly by her own labor, before 1855, and partly afterwards, by keeping boarders, if there was no fraudulent intent; although her husband lived with her, and she purchased articles for the boarding house from him. Hinckley v. Phelps, (2 A.) 84 77 213 If the insolvent has fraudulently ex- pended money in building upon, and otherwise improving, his wife's land, the assignee may maintain a bill against her and her mortgagee, to compel payment to him of the increased value. Lynde v. McGregor, (13 A.) 95 182. 214. "Where the assignee has sold mortgaged chattels, claiming that two mortgages thereof were invalid, against him, and the first is thus invalid, and the second valid, a bill lies against him and the prior mortgagee in favor of the second mortgagee, upon which a decree may be made to compel the assignee to pay to the plaintiff the amount of his mortgage, out of the proceeds. Dillaway v. Butler, 135 479. [For additional rulings upon conveyances and transfers, made to defraud creditors, see Chattel Mortgage, II ; 1'baud, III.] 215. Where a husband indorsed a note to his wife, and then went into insolvency, and the assignee had no knowledge of the existence of the note, until after the husband's death; it was held that the indorsement was void; that the assignee only had a right to sue upon it; and, consequently, that the wife, as her husband's administratrix, could not maintain an action upon it. Gay v. Kingsley, (11 A.) 93 345. 216. The assignee may affirm a sale of goods by the insolvent, which was fraudulent as to creditors; and receiving the purchase price, or bringing an action therefor, with knowledge of the facts, is such an affirmance, which can- not be withdrawn by discontinuing the action, or otherwise. Butler v. Hildreth, (5 Met.) 46 49. 217. So where the sale or.other transfer was a fraudulent or illegal preference under the insolvent laws. Snow v. Lang, (2 A.) 84 18; Hazel- ton v. Allen, (3 A.) 85 114; Potter v. Belden, 105 11. 218. But where, in an action for the conver- sion of the goods, a count in contract for the price is joined with the count in tort, that is not evidence of an affirmance, if it appears that all the counts were intended to disaffirm it. although the assignee demanded the price before bringing the action. Crafts v. Belden, 99 535. 219. An assignee does not become liable for the rent of premises demised to the insolvent, by the mere acceptance of the trust. Hoyt ». Stoddard, (2 A.) 84 442. 220. Nor is he liable personally for debts of a corporation, of which the insolvent is a stock- holder, under a statute making stockholders personally liable. Gray v. Coffin, (9 C.) 63 192. 221. Where a guardian, being largely in- debted to his ward, executes an assignment to him of a mortgage for a smaller sum, and retains possession thereof, the ward, although ignorant of the transaction, till after the com- mencement of proceedings in insolvency by the guardian, more than a year after the execution of the assignment, may maintain a bill against the assignee to reach the assignment. Moore v. Hazelton, (9 A.) 91 102. 222. A mortgagor cannot maintain replevin against the assignee in insolvency of the mort- gagee, who holds the property, after nonpay- ment of the mortgage debt when due. Hall v. White, 106 599. 223. Where a wife releases dower in her husband's land, in consideration of his oral agreement to convey to her other land, she can- not maintain a bill in equity against his assignee in insolvency, to compel such conveyance or to reimburse to her the value of her dower right. Winchester v. Holmes, 138 540. See, also, Holmes v. Winchester, 135 299; Woodward v. Spurr, 141 283. 224. An action for use and occupation does not lie in favor of the landlord, against the assignee in insolvency of a tenant at will, upon proof that the insolvent's goods were allowed to remain upon the premises, for two months after filing the petition, during which time the assignee entered with workmen, who were engaged several days in removing them. Wales v. Chase, 139 538. See, also, post, art. 254; and Leonard v. Kingman, 136 123. 225. For a ruling that assignees in insolvency ^ere entitled to redeem mortgaged land, on payment of its value, without improvements, put upon the land by the insolvent, where the grantor had conveyed it for a consideration greater than its value, taking back a mortgage for a sum greater than the value, without the improvements, which he had assigned in trust for creditors; and that the creditors were not necessary parties to the bill, see Jewett v. Tucker, 139 566. 226. An assignee cannot maintain a bill in equity, to restrain certain creditors from prov- ing their claims, where, although they are num- erous, their rights depend upon the same ques- tion of law, and all the claims are controlled by one person. Fellows v. Spaulding, 141 89. 227. Where B, having reasonable cause to believe A insolvent, took his note in payment of a debt, with C's indorsement, C taking a chattel mortgage as security, B knowing all the facts; and within four months proceedings in insolvency were begun against A, and the INSOLVENT, VI, (3), (4). m mortgaged property, and the other property, •were sold by the messenger, and the proceeds paid to A's assignee; and by an agreement between them, B took up the note at maturity, and paid him a sum, less than the proceeds received from the assignee, as a compromise of C's claim; it was held that the settlement between the assignee and C barred his action against B, to recover the sum so paid. Stimpson v. Poole, 141 502. (3,) Intervening in an action, and con- tinuing an attachment. 228. Under the provisions of the statute of 1838, dissolving all attachments, it was found, that a dissolution of an attachment might not insure the distribution of the insolvent's prop- erty among his creditors pro rata, since other liens might have attached to the property, sub- ject only to the attachment, and, they being removed, the property would be applied to individual creditors. To obviate this evil, St. 1841, Ch. 124, § 5; St. 1855, Ch. 66; St. 1857, Ch. 247, were successively passed, and are now incorporated into G. S., Ch. 118, § 45; P. S., Ch. 157, § 47. Sibley v. Quinsigamond Nat. Bk. , 133 515. See, also, Grant v. Lyman, (4 Met.) 45 470; Purple e. Cooke, (4 G.) 70 120; Mclntire v. Maynard, (4 G.) 70 429; Nelson v. Winchester, 133 435. 229. The re-enactment of these provisions in the 6. S., was not intended to change the interest or property, which would pass to an assignee, or to enable the assignee to avail him- self of an attachment, based, not upon the right of creditors to the property of the debtor, but upon a right which particular facts, personal to the attaching creditor, gave to him in the property of another. Sibley «. Quinsigamond Nat. Bk., 133 515. 230. The application must be made on or before the day prescribed by law for holding the third meeting of creditors, and it cannot be made at an adjournment of that meeting. Nelson ®. Winchester, 133 435 231. A bill in equity to compel or restrain a conveyance, or to reach and apply in payment of a debt, the property of a debtor, and an in- junction thereupon, although commonly called an equitable attachment, do not create such an attachment as is Contemplated by this provision. Squire v. Lincoln, 137 399; Powers «. Raymond, 137 483. 232. If the court of insolvency grants an order that an attachment shall continue, that is not conclusive upon the duty of the court ■wherein the action is pending, to admit the assignee to prosecute. Squire s. Lincoln, 137 399 233. The assignee may intervene in such a jJJ", if he chooses, for the purpose of having it dismissed; but if he does not intervene, after notice, the insolvency of the defendant is not a oar to the bill. Powers d. Raymond, 137 483. See, also. Squire v. Lincoln, 137 399. Vol. 1—98 234. Where an order is granted, the subse- quent proceedings are in the name of the assig- nee; and if he recovers judgment, the attaching officer must ascertain from the record that the action is the one in which the attachment was made. Bacon «. Lincoln, (2 C.) 56 124. See, also, Denny v. Lincoln, (13 Met.) 54 200. 235. The assignee, upon recovering judg- ment, is entitled to full costs, and he holds the costs subject to the claim of the original plain- tiff, for the amount thereof disbursed by him, and to the lien of the attorney for the latter. Bacon . Chapin, t 10 C.) 64 173. See, also. Executor and Administrator, in, (i); v.] 241. The assignee of both partners, under different proceedings in insolvency, must ad- minister the partnership estate, although the partnership has not been declared insolvent. Harmon v. Clark, (13 G.) 79 114. 242. Where the proceedings are superseded by consent of all parties, and the assignees transfer to the debtor all the property in their hands, and the latter executes to them a full and absolute release, he cannot afterwards maintain an action against them for property not accounted for. Sawyer v. Haley, (6 G.) 72 243. 243. The assignee is entitled to be allowed for taxes, although paid after his removal, if previously assessed, and although the payment was made at the request of one who has indem- nified him, and who has taken a conveyance from the new assignee, with notice that he must pay the taxes. Loud v. Holden, (14 G.) 80 154. m INSOLVENT, VI, (4); VII, (1), (2). [For a ruling touching the liability of an assignee for a loss upon a sale of mortgaged property, see ante, art. 101. | 244. The assignee may keep his memoranda and accounts in the blank leaves of books of account, which belonged to the insolvent, and may cut out those leaves, before delivering the books to his successor: and after settling his account and making full distribution, he may retain his receipts, vouchers, and memoranda. Hoard v. Bassett, (.11 A.) 93 213. 245. A claim of a town against a tax collector, for taxes collected and unaccounted for by him, is a " debt" entitled to priority in the order for a dividend. Bent® Hubbardston, 138 99. 246 A creditor may be entitled to a prefer- ence in dividends, as an operative, for the labor of his wife Thayer v Mann, (2 C.) 56 371. 247. One, who received materials from the in- solvent's shop, took them home, manufactured them into boots and shoes, at agreed prices, and delivered them to the insolvent within sixty-five days before his insolvency, is entitled to prefer- ence as an operative. Thayer «. Mann, (2 0.) 56 371. 248. "Where the demand of a creditor is allowed as a debt, but his claim for preference in dividends as an operative is disallowed, his remedy is not by appeal; but he should file his petition for a preference, and, if it is disallowed, apply to the supreme court. Thayer v. Mann, (2 C.) 56 371. [For ruling as to dividends upon claims for which two or more persons are liable, see, ante, IV, (1.)] 249 An action for money had and received lies against an assignee, who refuses, upon de- mand, to pay a creditor a dividend ordered by the court. Carney v. Dewing, (10 C.) 64 498. 250. It is not a ground for relieving an as- signee, or his sureties, from the payment of a dividend ordered by the eourt, that the sum to be divided consists 1 of the purchase money of land, sold by the assignee with covenants of warranty, which the assignee is liable to refund by reason of failure; of the title. Chilson «. Adams, (6 G.) 72 364. 251. Creditors, whose claims accrued before the enactment of the homestead statutes, are entitled to have the entire sum realized by the assignee from the sale of the homestead right, applied to the payment of their claims, in pre- ference to the general creditors, and to take their dividends with the general creditors for the balance of their claims, if any; and the sum realized from the sale of the reversionary rights is to be distributed among all the credi- tors. White v. Bice, (5 A.) 87 73. 252. As to the mode of application of any surplus in the assignee's hands, after paying the debts proved, to the payment of interest thereon, see Brown e. Lamb, (6 Met.) 47 203. 253. The debtor may maintain a bill against his co-partner and a third person, to recover his proportion of money paid by the United States, in accordance with the decision of the commis- sioners of the Alabama claims, for property of the partnership, destroyed by an insurgent cruiser, after all the debts proved against his estate have been satisfied, and the assignee has consented in writing to the maintenance of the bill in the plaintiff's name. Jones v. Dexter, 125 469. 254. An assignee in insolvency is chargeable with rent, if he accepts a lease to the insolvent; and the court may order him to pay a reason- able sum for the use of the leased property, until he disclaims the lease, as provided in P. S., Ch. 157, § 26. Abbott v. Stearns, 139 168. See, also, Hoyt v. Stoddard, (2 A.) 84 442; Comm. v. Franklin Ins. Co., 115 278; Deane v. Caldwell, 127 242; Mason ». Smith, 131 510. [See, also, ante, arcs. 219,224.1 VII. Proceedings intermediate the Assign- ment and Discharge. (1.) Examination of the debtor* 255. It is within the discretion of the judge to allow the examination of the debtor, in matters relating to the disposition of his prop- erty, to be conducted by a single creditor, who is not th .- assignee. Chamberlain v. Hall, (3 G.) 69 250. 256. The debtor cannot be examined without his assent, upon the preliminary question whether he shall be adjudged an insolvent. In re Jordan, (9 Met.) 50 292. 257. Semble, that a debtor, examined under the statute, is entitled to consult counsel before answering. Ex parte Winsor, cited in Peabody v. Harmon, (3 G.) 69 113. 258. The judge may issue a warrant to arrest and imprison the debtor, if he refuses to appear at the third meeting of the creditors, and pro- duce o schedule of hii debts, and submit to an examination; and, semble; that he may be required to submit to an examination at any time before his discharge is gr nted. Kimball «. Morris, (2 Met.) 43 57a 259. The refusal of the commissioner to per- mit a creditor to examine the debtor will not avoid the discharge. Blanchard v. Young, (11 C.) 65 341. (2.) Examination of a third person. 260. St. 1856, Ch. 284, § 36, providing for issuing a warrant upon complaint of the assignee, to search for property of the debtor, was unconstitutional. Bobinson v. Bichardson, (13 G.) 79 454. 261. If the wife of the debtor is charged with a fraudulent concealment of his property, it is the duty of the judge to examine her on oath touching the same. Church «. Choate, (9 A.) 91 573. INSOLVENT, VII, (2), (3); VIII, (1); (2), (A), (B). 779 262. The purpose of the statute relating to the examination of a third person, is not only to provide for the investigation of cases of actual fraud, but to enable those inter- ested to discover and pursue property, so with- drawn from the assets of the insolvent, that it cannot be applied in satisfaction of his general creditors. Harlow v. Tufts, (4 C.) 58 448; Sawin v. Martin, (11 A.) 93 439. 263. The provisions of the statute extend to a. fraudulent conveyance of real property. Harlow v. Tufts, (4 C.) 58 448. 264. The word "embezzle" in the statute does not refer to a criminal embezzlement, but a violation of a civil right; and a person com- mitted under a mittimus for Tef using to be examined, cannot be discharged upon Jiabeas corpus, on the ground that he is required to criminate himself . Sawin v. Martin, (11 A.) 93 439. 265. Such a person is bound to submit to an examination, until he can state that objection in answer to a specific interrogatory. Sawin ». Martin, (11 A.) 93 439. (3.) Creditors' second and third meet- ings. 266. The third meeting may be adjourned for months or for years; the several adjourn- ments constitute but one meeting, and as, a general rule, anything required to be done at the third meeting may be done at any adjourn- ment thereof. Nelson v. Winchester, 133 435. See, also, Rice «. "Wallace, (7 Met.) 48 431. [For an exception to this rule, see ante, art. 230.] 267. Under the statute of 1838, the discharge was invalid, if the debtor did not take and sub- scribe 'the statutory oath at thesecond meeting. Cox e. Austin, (11 C.) 65 - 32. ffor additional rulings as to the second and third meetings, see ante, art. 258, and post, arte. 268, 271, 872.] Vm. Discharge. (1.) When and how granted; form. 268. It is the duty of the judge of insolvency, at the third meeting of the creditors, to deter- mine the right of the insolvent to a discharge, although it is hot specially applied for; and if such a determination has been formally made, his jurisdiction is' exhausted, and the only remedy is by appeal, or application to the supreme judicial court. In re Rice, (7 A.) 89 112. See, also, Marsh «. McKenzie, 99 64. 269. Semite, that upon an application for a discharge, the burden of proof is upon the objecting creditor, to show the facts which, Werthe statute, forfeit the insolvent's right to the' discharge. I» re Phillips, 132 233.. 270. Under St. 1848, Ch. 304, § 9, the dis- charge is not invalid, because it was granted within six months after the date of the assign- ment. Journeay «. Gardner, (11 C.) 65 355; Williams v. Coggeshall, (11 C.) 65 442; Wetherbee v. Martin, (16 G.) , 82 518. 271. Under the statute of 1838, an insolvent was not entitled to a discharge, where the second meeting of his creditors was not held until more than three months after the date of the warrant. West v. Shepardson, (11 C.) 65 164. As to the effect of St. 1844, Ch. 178, see Eastman v. Hillard, (7 Met.) 48 420. See, now, P. S., Ch. 157, § 78. 272. A discharge, granted at a third meeting, called more than six months after the appoint- ment of assignees, is void, even against a creditor who is himself the assignee. Williams v. Robinson, (4 C.) 58 529; Crocker «. Stone, (7 C.) 61 341 273. It is unnecessary that the certificate of discharge should contain a statement of the exemption of fiduciary debts, if no such debts exist. Williams v. Coggeshall, (11 C.) 65 442. 274. The recital in the certificate of dis- charge, that the debtor has in all things con- formed himself to the requirements of law, is not prima facie evidence that he has taken and subscribed the oath. Cox «. Austin, (11 C.) 65 32. [As to the assent of creditors, Bee post, VIII, (2), (B).] (2.) When refused ; when void, if granted. (A.) Defects in the proceedings. , 275. The discharge will not be void, in the absence ' of , a wilful or fraudulent intent, by reason of the omission of creditors from the schedule, or any other unintentional defect in the schedule Williams ». Coggeshall, (11 C.) 65 442; Whiton v. Nichols, (3 A.) 85 583. 276. Or by reason of an omission in voluntary proceedings, of a statement, in the petition, of the petitioner's residence or place of business. Whiton v. Nichols, (3 A.) 85 583. 277. If it is alleged that the debtor did not file the schedules, a statement in the record that he produced them before the commissioner, sufficiently proves the fact. Lothrop v. Tilden, (8 C.) 62 375. [See, also, post, VIII, (3).] (B.) Creditors' dissent or assent. 278. Under St. 1844, Ch. 178, § 4, the dissent of a majority in value of the creditors who have proved their claims, must be filed within 780 INSOLVENT, Vm, (2), (B), (C). six months after the assignment, in order to de- feat the discharge. Crocker v. Stone, (7 C.) 61 341 279. A dissent thus filed, could not be with- drawn without notice, and the consent of the commissioner. Beverly Bank «. Wilkinson, (2 G.) 68 519. 280. For other rulings, under the provisions of the former statutes, requiring the dissent of creditors to he filed, see Bice v. Wallace, (7 Met.) 48 431; Ex parte Bartlett, (8 Met.) 49 72; Gardner v. Nute, (2 C.) 56 333; Re- vere v. Newell, (4 C.) 58 584; Williams v. Robinson, (4 C.) 58 529. 281. Since the statute requiring the filing of creditors' assent, an assent filed within the six months cannot be withdrawn, without notice to the debtor, and the consent of the court. Merriam v. Richards, (3 G.) 69 252. 282. Nor is the insolvent's right to a discharge affected by the subsequent expunging of the proof of one assenting creditor, whose claim was necessary to make up the requisite propor- tion. Gifford v. Barker, (9 G.) 75 364. 283. The creditor's assent is valid, although signed on the back of the statement of the claim, before it was proved. Producers' Bk. «. Farnum, (5 A.) 87 10. 284. A creditor whose claim is proved partly for his own benefit, and partly for another's, may confine his assent to his own portion. Producers' Bk. «. Farnum, (5 A.) 87 10. 285. The discharge is not invalid, because some of the assenting creditors proved their claims, without making oath to them at a regular meeting, and the facts authorizing them so to . Eichardson, (12 A.) 94 365, [See further on this subject, Conflict of Laws, III, (5).] 313. As to debts due to residents of the Com- monwealth, while the United States bankrupt law was in force, see Fisher v. Currier, (7 Met.) 48 424;. Austin n. C'averly, (10 Met.) 51 332. 314. A debt payable in work, being prov- able, is discharged, although not proved. Barker v. Mann, (4 Met.) 45 302. 315. A discharge is not a bar to a debt, which was provable under previous insolvency p o- ceedings, unless it was discharged under the former proceedings, and revived by a new promise. Gardner*. Way, C8G.) 74 189; Whit- ney v. Willard, (13 G.) 79 203. 316. But semble, that the creditor may elect to prove the debt under the subsequent pro- ceedings; and if he does so, it will be barred by the discharge thereunder. Gilbert *. Hebard, (8 Met.) 49 129. 317. A debt created in 1833, for which a note was given in 1844, is deemed to have been created since 1838, within G. S., Ch. 118, 6 76; P. S., Ch. 157, § 81. Wyman v. Fabens, 111 77. 318. A discharge is not a bar to a writ of review, upon a judgment obtained before the. proceedings were commenced. Foster v. Hummer, (3 C.) 57 381. 319. Nor to an action for breaking and enter- ing the plaintiff's close. Hapgood *. Blood, (11 G.) 77 400. 320. But it is a bar to the recovery of dam- ages for converting goods, alleged in such an action by way of aggravation. Bickford n. Barnard, (8 A.) 90 314. 321. It is a bar to an action against E. S., although the discharge is to E. R. S., if he used both names, although the plaintiff knew him only as E. is., and had no notice of the in- solvency proceedings. Hubbard *. Smith, (4 G.) 70 72. 782 INSOLVENT, VEIL (3), (4), (5). 322. It is not a bar to an action by a surety, for money subsequently paid upon a debt proved by the holder. Thayer v. Daniels, 110 345. 323. Nor to an action upon a covenant of warranty, for damages sustained by a grantee after the discharge. French v. Morse, (3 G.) 68 111. 324. Nor to an award for costs to the defend- ant, made before the discharge, but accepted afterwards by the court. Mann ». Houghton, (7 C.) 61 592. 325. Nor to an action upon a replevin bond, the condition of which was broken after the discharge. Sleeper v. Miller, (7 C.) 61 594, note. 326. Nor to an action upon a recognizance, where the time for surrender was the day of the first publication. Smith n. Eandall, (1 A.) 83 456. 327. A receipt for a sum of money, " for the purchase of stocks for which I agree to account on demand," does not necessarily show that the debt was not barred as being fiduciary. Halpine v. May, 100 498. 328. Where the record, in an action wherein the defendant pleaded a discharge, does not show that the debt was fiduciary, the plaintiff cannot raise that question upon an exception. Halpine v. May, 100 498. 329. A discharge is not a bar to an action to enforce the lien of a mutual insurance com- pany, upon the property insured, for an assess- ment. Bowditch Ins. Co. v. Jackson, (12 G.) 78 114. 330. The rent of a boarding house is not a claim for necessaries, which is not barred by a discharge. Bee, however, G. S., Ch. 90, § 29: P. S., Oh. 121, §10. Prentice v. Eichards, (8 G.) 74 226. 331. A claim for rent of a house, occupied by several persons as joint lessors, is barred by a discharge to one of them, as against him. Plympton ». Eoberts, (12 A.) 94 366. 332. But a claim for rent for a house, occupied by the debtor and his family, is not barred, unless proved. Bell v. Tuttle, (1 A.) 83 219. 333. If articles, in their nature necessaries, are furnished to a boarding house keeper, and used in common by him, and his family and his boarders, the discharge bars a claim therefor. Lincoln v. Dunbar, (7 A.) 89 264. 334. There can be no claim under the statute for necessaries furnished a partnership, although the articles were used in the partners' families. Drake v. Bailey, (5 A.) 87 210. 335. A negotiable note or a judgment; the consideration of which was an account for nec- essaries, is barred by a discharge, although the original account could not have been barred, unless proved. Eindge v. Breck, (10 C.) 64 43; Bangs d. Watson, (9 G.); 75 211. 336. Contra, apparently, Smith ». Eandall, (j A.), ; 83 -. 456. 337. Since St. 1881, Ch. 257, § 8, a discharge does not bar an action of tort against an officer for conversion, by taking goods of the plaintiff on an execution against another, although the proceedings were commenced before the enact- ment of that statute. See P. S., Ch. 157, § 84. Batten v. Sisson, 133 557. [By St. 1885, Ch. 353, §6, a claim against a pledgee for an unauthorized' sale or the collateral, is notdis- charged.j (4.) New promise. [See, also, Bankruptcy, II, (7).] 338. If a debtor, after obtaining his dis- charge, performs work for another, under an oral agreement that the value of the work shall be applied in payment of the debt, he cannot recover therefor. Pierce v. Mann, 130 14. 339. In an action to recover a debt discharged in insolvency, the plaintiff must prove a dis- tinct and unequivocal new promise: part pay- ment will not suffice. Merriam i>. Bayley, (1 C.) 55 77: Cambridge Inst'n, etc. v. Littlefleld, (6 C.) 60 210; Seed v. Frederick, (8 G.) 74 230. 340. A promise to let the debtor's note re- main unpaid, upon a judgment, to abide the result of a suit, or to allow it in payment of money, coming to him on the performance of a special contract, is not such a new promise as will render him liable. Kelley v. Pike, (5 C.) 59 484. 341. Nor are a recognition of the debt in a letter, and expressions of a desire to pay it, and of an intentign to pay it as soon as the debtor can, and the like, sufficient as a written prom- ise within the statute. Eandidge «. Lyman, 124 361; Ken- ney v. Brown, 139 345. 342. But a positive promise, not qualified by the condition of ability, suffices. Lerow «. Wilmarth, (7 A.) 89 463; Cook v. Shearman, 103 21; explaining a dictum in Eeed ». Frederick, (8 G.) 74 230. See, also, Williams v. Bugbee, (6 C.) 60 418. 343; This expression, " I wish I could give you some money, but cannot at present. I shall not take any notice of your abuse of me, till I have paid you the amount I owe you, which I shall surely do," does not suffice. Dennari v. Gould, 141 16. . (5.) Pleading; proving; attacking 344 The insolvent law of this Common- wealth, differing in that respect from the United States bankrupt law, leaves the question whether a continuance shall.be granted, so as to enable the. insolvent to obtain and plead a discharge, to the discretion of the, court in which the action is pending. Sullings 63 318. INSOLVENT, Vm, (5), (6); IX, (1). 783 345. A defendant, -who, after taking excep- tions,' obtains a discharge, may waive his ex- ceptions and plead it. Swans. Easterbrooks, (16 G.) 82 520. 346. "Where a defendant, after verdict, and while'exceptions were pending, filed a plea of a discharge, by leave of the court, and the ex- ceptions were overruled, the court directed judgment upon the verdict, but that no execu- tion issue; that the judgment be certified as a debt proved, and the costs be paid in full. Morris a. Briggs, (3 C.) 57 342. 347. If the defendant neglects to plead his discharge, and allows judgment by default, he cannot he relieved upon audita querela. Faxon v. Baxter, (11 C.) 65 35. 348. The original certificate is evidence, as well as a certified copy from the record. Greene e. Durfee, (6 C.) 60 3C2. 349. Since St. 1879, Ch. 245, § 4; P S., Ch. 157, §§ 81, 95, a creditor cannot contest the va- lidity of a-discharge, where it is pleaded in an action brought by him; his remedy is confined to an application to the court of insolvency to annul it. And from the decision upon such ap- plication there is no appeal; and the supreme judicial court has no jurisdiction to revise the decision. Kempton v. Saunders, 132 466. 350. Before the enactment of that statute, the plaintiff, upon the defendant pleading his dis- charge, might reply, setting forth the facts •which avoided it. Kelman «. Sheen, (11 A.) 93 566. [See, also, ante, VIII, (3).] 351. In an action on a note, to which a dis- charge is pleaded, the plaintiff may, if no rep- lication is ordered by the court, prove a new promise, without having pleaded it. Cook v. Shearman, 103 21. (6.) Special judgment to hold sureties. 352. St. 1880, Ch. 246, § 8, amending St. 1875, Ch. 68, § 1, (see P. S., Ch. 171, § 23), by including an insolvent, under the state law, within the provisions as to a special judgment against a bankrupt, who has dissolved an attach- ment by a bond, did not apply to a bond given before the statute of 1880 took effect. Lincoln v. Leshure, 132 40. 353. For rulings under the statute of 1875, Before this amendment, now applicable to cases under the insolvent law, see Carpenter v. Turrell, 100 450; Bos- worth v. Pomeroy, 112 293; Stockwell a.Silloway/i 113 382; Braleyfl. Boomer, 116 527; Fickett v. Durham, i 119 159; Ray v. Wight, 119 426; Towne a.'Rice, 122 67; Barnstable Sav. Bk. ; ». Higgins, 124 115; Denny v. Merri- fleld, 128 228. 354. As to a similar provision with respect to a writ of review, P. S., Ch. 171, § 24, see Bush d. Hovey, 124 217. 355. But for the statute, the plaintiff could not take any judgment, so as to render the sure- ties liable. Loring v. Eager, (8,0.)., 67 .188. IX. Unlawful Preferences, and other Frauds on the insolvent Law. [See, also, ante, VIII, (2); Bankruptcy; Poor Debtor, III, (3).] (1 .) When the assignee may or may not sue or defend. 356. A preferential payment, mortgage, or other security, made or given to a bona fide creditor, is valid as to every one except the assignee ininsol vency, although both the creditor and the debtor knew that the latter was insol- vent. Penniman v. Cole, (8 Met.) 49 496; Burt i). Perkins, (9 G.) 75 317; Gardner v. Lane, (9 A.) 91 492; Bush ». Moore, 133 198. [See, also, Assignment, V; Fraud, III.] 357. An assignee may avoid a conveyance or other transfer, actually fraudulent as to credi- tors, if it was made within the time prescribed by the statute. Lynde v. McGregor, (13 A.) 95 172. 358. Although a chattel mortgage upon prop- erty thereafter to be acquired, gives the mort- gagee no title to the property, until he takes pos- session, yet if the mortgagee takes possession of his own motion, before insolvency proceed- ings are instituted against the mortgagor, he holds the property against the assignee, although he knew the mortgagor was insolvent. Chase «. Denny, 130 566. See, also, Mitchell «. Black, (6 G.) 72 100. 359. A mortgage by a debtor, Who was ac- tually insolvent, and had no reasonable cause to ' believe himself solvent, to a pre-existing creditor, who had reasonable cause to believe him insol- vent, was void under the statute of 1841, although the debtor believed himself solvent. Holbrook ». Jackson, (7 C.) 61 136. 360. "Where a defendant, sued by an assignee to recover goods, on the ground of a sale in fraud of the insolvent law, purchased the goods from an intervening purchaser from the debtor, all three being cognizant of the insolvency and intent, and the jury so found the facts, it was held that the assignee might recover. Leonard v. Strong, (11 G.) 77 186. 361. One who has advanced money to enable the insolvent to do business, taking bills of sale from the vendors, and assignments of the bills of lading, and bills of sale from the insolvent, as security; and has subsequently allowed the in- solvent to deal- with the goods as his own; may take possession at any time before the insol- vency proceedings, without committing a fraud upon the insolvent laws, although he knows the debtor to be insolvent. Mitchell «. Black, (6 G.) 72 100. 362. A consignment of goods by na insol- vent to a pre-existing creditor, who knows him to be insolvent, with authority to sell, and apply the proceeds upon his demand, is void against the assignee. Burpee v. Sparhawk,; 97 342. 363. As to the measure of damages in the action of the assignee, see ■ Burpee ». Sparhawk, -97 342. 364. One individual, acting in two .capacities, as the, debtor, and in /behalf of ■ the creditor. 784. INSOLVENT, IX, (1). may constitute the two persons contemplated by the statute. Bush ». Moore, 133 198. 365. Thus, where an insolvent guardian, who had misappropriated his ward's money, de- posited his own money to the credit of the ward, within six months before insolvency proceed- ings against him, for the purpose of preferring the ward, the assignee may recover the money, although the ward was ignorant of the appro- priation and of the insolvency. Bush v. Moore, 133 198. 366. If any part of the purpose of the sale or conveyance is fraudulent within the statute, the whole is void. Crafts v. Belden, 99 535. 367. But if there is a sale for a valuable con- sideration, it is not invalidated by the fact that part of the consideration was a credit on a previous debt. Smith v. Merrill, (9 G.) 75 144. 368 In an action for conversion against the assignee, if the jury find that the sale to the plaintiff was an unlawful preference, the plain- tiff cannot recover the difference between the value of the property and his debt. Bartlett v. Decreet, (4 G.) 70 111. 369. If the purchaser had reasonable cause to believe that the intent of the transaction was to prefer a creditor, the sale is void as against the assignee; and he can recover against the purchaser, although the benefit of the prefer- ence enures to a creditor, who has been paid by the defendant, and who, by reason of his ignorance of the intent, can retain the payment. Crafts v. Belden, 99 535. 370. See, further, as to a transaction for the benefit of an innocent creditor, with one cogni- zant of the insolvency, Crowninshield v. Kittridge, (7 Met.) 48 520. 371. Under § 10 of the st. of 1838, a convey- ance, made as part of the original contract, was valid, but only where the agreement to give security was not only made, but executed at the time; otherwise it fared like other securities for pre-existing debts. Stevens v. Blanchard, (3 C.) 57 169; Blodgett v. Hildreth, (11 C.) 65 311; Paine v. Waite, (11 G.) 77 190; Simp- son v. Carleton, (1 A.) 83 109. See, also, Gorham v. Stearns, (1 Met.) 42 366. 372. Where the purchase money for real property has been paid, but the giving of the deed postponed, a deed subsequently executed, before the insolvency proceedings, is valid; although the grantee's agent had reason to believe that the grantor was insolvent: in such a case, the grantee was not a creditor within the statute. Nickerson v. Baker, (5 A.) 87 142. 373. An oral agreement between husband and wife, that he will convey certain property to her, in consideration of her release of dower in his land; which he afterwards fulfils, when he is insolvent and she knows the fact, renders the transaction valid as to personal property, but not as to real property. Holmes v. Winchester, 133 140; Holmes v. Winchester, 135 299. 374. A transfer by one partner to another is valid, although the firm and both partners are then insolvent. Howe v. Lawrence, (9 C.) 63 553- Bobb v. Mudge, (14 G.) 80 534. 375. A conveyance by one partner of his separate property to one of his pre-existing creditors, with intent to give a preference, is within the statute, if the property of the part- nership, and of the individual partners, was in- sufficient to pay the partnership debts, although each partner's separate property was enough to pay his separate debts. . Judd o. Gibbs, (3 G.) 69 539. 376. For a case, where it was held that an agreement, between partners and attaching cred- itors, to discharge an attachment, in considera- tion of certain notes being placed in a trustee's hands, to pay out of the proceeds 75 per cent of the demands of the attaching creditors, and the remainder pro rata to certain other credit- ors, was not void under the statute of 1841, see Perkins v. Webster, (2 C.) 66 480. 377. But a mortgage of attached property, in consideration of the withdrawal of the attach- ment, is void, if the mortgagee had reasonable cause to believe that the mortgagor was insol- vent. Denny v. Dana, (2 C.) 56 160. 378. An agreement that judgment shall be rendered in favor of the first of several attach- ing creditors, on the first day of the term when the writs are returnable, was not void as a pref- ence under the statute of 1838, unless made in contemplation of obtaining a discharge under that statute. Eastman ®. Eveleth, (4 Met.) 45 137. 379. Where a debtor executed a deed of land to his creditor, and took back a defeasance, which he delivered to another creditor, and the first creditor conveyed the land to the second, on receiving payment of his debt; whereupon the second creditor gave the debtor a bond of defeasance for the amount of both debts; it was held, that the second creditor might hold the land, against the assignee, as security for the sum paid the first creditor, although the entire transaction was an unlawful preference of the second creditor. Judd v. Flint, (4 G.) 70 557. • 380. Where B gave his note to A for certain shares of stock, upon an agreement that, if B so preferred, A would pay the note at maturity, and take back the shares; and A lent the note to a firm of which he was a member, which pledged it, with other securities, as collateral security to its note; and, after the firm became insolvent, B furnished it with money to pay his note, and received from the pledgee the securi- ties pledged, and surrendered the shares to A; it was held, that the assignee in insolvency of the firm, could not maintain an action against B, to recover his note or its value, although, when B received it from the pledgee, he had reasonable cause to believe that the firm was insolvent. King v. Nichols, 138 18. 381. The assignee needs not offer to return the consideration, to enable him to maintain an ac- tion for goods sold in violation of the insolvent law. Tapley v. Forbes, (2 A.) 84 20. INSOLVENT, IX, (2), (A), (B), (C), (D). Y85 382. Nor is it necessary to set forth in detail, in the declaration, the facts upon which he re- lies, to show the illegality. Tapley e. Forbes, (2 A.) 84 20. (2.) Evidence. (A.) Generally. 383. It is necessary for the assignee, in an action by or against him, founded upon a trans- fer or conveyance in fraud of the insolvent law, to show, not only the debtor's insolvency and intent, but that the person receiving the property knew, or had reasonable cause to believe, that the debtor was insolvent or in con- templation of insolvency. Lothrop v. Highland Foundry, 128 120. See, also, Butler v. Breck, (7 Met.) 48 164; Thompson v. Stone, (8 C.) 62 103; Coburn v. Proctor, (15 a.) 81 38. 384. The 'proceedings in insolvency, to estab- lish the assignee's title, or the time of the com- mencement of the proceedings, may be proved by the schedules, proofs, list of debts, and the record; but these are competent only for that purpose, not as evidence of the facts therein stated. Holbrook v. Jackson, (7 C.) 61 136; Bartlett «. Decreet, (4 G.) 70 111; Heywood v. Heed, (4 G.) 70 574; Simpson e. Carleton, (1 A.) 83 109. (B.) Insolvency. 385. If it is shown that the debtor was insol- vent, before paying the preferred debt, the jury will be warranted in inferring that he was insol- vent, at the time of the payment. Cozzens v. Holt, 136 237. 386. Evidence that his note was then out- standing, although he denied its validity, and it was afterwards disallowed In the insolvency proceedings, is competent upon the question of insolvency. Metcalf «. Munson, (10 A.) 92 491. ihmSw Jh? 1 . a P ers01 } is insolvent, within the meaning of the insolvent law, see ante, I, (1).] (C.) Intent. 387. The debtor's intent unlawfully to SZV ? edltor > may *>e inferred by the jury from the fact that he did give the preference. « ™? y ^„ Dana > $ C -) 5 6 160; Beals ». Clark, (13 G.) 79 18. 388. The rule, that the acts and declarations oi a grantor, after he has divested himself of hp tw te i s ? a11 not be admitted to impeach vnW the ^antee, is applicable, where a Im ~1 ^ t con yeyance is impeached as fraudu- *m against ; subsequent creditors, or made with »» object to prevent the property from going Vol. 1—99 to satisfy existing debts; and the rule is the same, whether the fraudulent grantor is or is not a party. • Winchester i>. Charter, 97 140. See also, Aldrich v. Earle, (13 G.) 79 578- Lynde ». McGregor, (13 A.) 95 172; Holbrook v. Holbrook, 113 74; and Evidence, VI, (3). 389. Upon a writ of entry by an assignee against husband and wife, to recover land, as having been fraudulently conveyed by the hus- band to the wife, .through a third person, where it appeared that at the time of the conveyance, the husband's sons held his notes, it was held, that evidence that the sons had not the means to lend him the money, represented by the notes, was admissible for the purpose of showing that he was engaged in or contemplating other fraudulent acts,, of the same character. Winchester v. Charter, 97 140. 390. Upon a writ of entry by an assignee, to set aside a conveyance as having been fraudu- lent, where the tenant testifies that be received from the insolvent a letter addressed to another, and its contents, if known to him, had a tend- ency to prove the alleged fraud, the question whether he knew the contents is properly sub- mitted to the jury. Marsh v. Hammond, (11 A.) 93 483. 391. And if the insolvent has testified that he had no fraudulent intent, letters written by him, or by his authority, shortly after the trans- action, and tending to show such intent, are admissible for the purpose of contradicting him. Marsh v. Hammond, (11 A.) 93 483. 392. The insolvent's statement of the terms of a previous agreement, pursuant to which it is claimed that the sale impeached was made, are inadmissible against the assignee, to show that the transaction was in good faith. Heywood v. Reed, (4 G.) 70 574. 393. And his statements before or after the sale, as to the value of the property sold, and his other property, are likewise inadmissible. Heywood v. Reed, (4 G.) 70 574. 394. But his public statements of his intent to dispose of the property, are admissible, to show that his subsequent sale thereof was with- out a fraudulent intent. Heywood «. Reed, (4 G.) 70 574. 395. In an action by an assignee for conver- sion of property alleged to have been fraudu- lently assigned, which the defendant claims to hold under an independent lawful agreement, evidence of admissions by the debtor that such an agreement existed, made after the assign- ment, but before his petition in insolvency, is admissible for the defendant. Carnes v. White, (15 G.) 81 378 (D.) Seasonable cause to believe. 396. If facts are known to a creditor, which give him reasonable cause to believe his debtor to be insolvent, and he also knows that the debtor knows the same facts, he has reasonable cause to believe that the debtor believes himself to be 786 INSOLVENT, IX, (2), (D), (E); (3). insolvent, and that a payment of the debt is made in fraud of the insolvent law. Cozzens ». Holt, 136 237. 397. In an action for conversion by a mort- gagee of chattels, against the assignee of the mortgagor, who claims to hold the goods on the ground that the mortgage was an unlawful pre- ference, the issue is, not whether the plaintiff knew or believed that the mortgagor was insol- vent, but whether he had reasonable cause to be- lieve him to be ins jlvent. Purinton v. Chamberlin, 131 589. See, alse, Coburn v. Proctor, (15 G.) 81 38; Forbes v. Howe, 103 427; Otis v. Hadley, 112 100. 398. The facts, from which such reasonable cause may be inferred, are facts known to the creditor, touching the business, pecuniary con- dition, and purposes of the debtor, in connection with the time and manner of the conveyance. Purinton «. Chamberlin, 131 589. 399. Upon that issue, evidence that the mort- gagee was himself indebted to creditors who were pressing him, and he offered them the mortgage as collateral security for those debts, is inadmissible. Purint. n v. Chamberlin, 131 589. 400. Evidence that the insolvent had the repu- tation of being insolvent, or of neglecting and mismanaging his business, is admissible upon that issue. Bartholomew ■». McKinstry, (6 A.) 88 567. See, also, Lee ». Kilburn, (3 G.) 69 594; Simpson «. Carleton, (1 A.) 83 109. 401. So is evidence that the mortgagee knew that he was intemperate and neglected his busi- ness. Alden «. Marsh, 97 160. 402. So is evidence, in behalf of the mort- gagee, that he had a good reputation for prop- erty. Bartlett ». Decreet, (4 G.) 70 111; Heywood t> Reed, (4 G.) 70 574; Whitcher v Shattuck, (3 A.) 85 319; Metcalf v. Munson, (10 A.) 92 491. 403. But not that in fact his business was profitable. Bartlett v. Decreet, (4 G.) 70 111. 404. For other rulings, as to the competency upon this issue, of proof of particular facts and circumstances, relating to the debtor and his affairs, see Denny «. Dana, (2C.) 56 160; Hazel- ton «. Allen, (3 A.) 85 114; Carpenter ii. Leonard, (3 A.) 85 C2; Kingman i>. Tirrell, (11 A.) 93 97; Marsh v. Ham- mond, (11 A.) 93 483; Vennard i>. McConnell, (11 A.) 93 555; Everett v. Stowell, (14 A.) 96 32. 405 Where a father, not being the legal guar- dian of his infant daughter, received a prefer- ential conveyance to her, the fact that he had reasonable cause to believe that the grantor was insolvent, does not charge her with such cause. Cowell v. Daggett, 97 434. 406. Proof of the transferee's general reputa- tion for honesty and integrity is not admissible in his behalf. Heywood v. Reed, (4 G.) 70 574 (E.) Ordinary course of business. 407. Under St. 1841, Ch. 135, § 3, money or a third person's check, paid to a creditor in the ordinary course of business, could not be re- covered back by the assignee, although the transaction was a preference. Wall v. Lakin, (13 Met.) 54 167; Cushman v. Libbey, (15 G.) 81 358. 408. Whether a transaction was in the ordi- nary course of business of the debtor, is made by the statute an important element, in deter- mining whether the creditor had reasonable cause to believe him insolvent; but whether it was in the ordinary course of business of the creditor is wholly immaterial. Purinton ». Chamberlin, 131 589. 409. A mortgage upon real property, to secure a pre-existing debt, is not made in the ordinary course of the business of a mill- wright. Nary v. Merrill, (8 A.) 90 451. See, also, Metcalf i>. Munson, (10 A) 92 491. 410. But it is for the jury to decide, whether a mortgage on a stock of goods for money then borrowed, professedly to raise money to meet bills falling due, was made in the ordinary course of business; and whether the mortgagee had reasonable cause to believe the mortgagor insolvent, although the latter absconded two days afterwards. Alden «. Marsh, 97 160. 411. And it is according to the ordinary course of business of any man who owns real property, to sell it when he sees fit; it is not necessary that a sale should be connected with the business, which he ordinarily pursues, to relieve it from suspicion. Pearson v. Goodwin, (9 A.) 91 482. 412. Such a sale, at a fair price for cash, within six months before the vendor goes into insolvency, does not afford any prima facie evi- dence that the purchaser knew that he was insolvent. Pearson v. Goodwin, (9 A.) 91 482. 413. The statute applies only to conveyances, connected with the usual and ordinary business of the insolvent. Pearson v. Goodwin, (9 A.) 91 482. 414. Where, in an action by the assignee against tho transferee of goods, the judge in- structed the jury in the language of the statute, an exception will not lie to his refusal further to instruct them, that the plaintiff must prove that the defendant knew that the sale was out of the ordinary course of the insolvent's busi- Tapley v. Forbes, (2 A.) 84 20. (3.) Indictment of the debtor. 415. To support an indictment, under G. S., Ch. 118, § 106; P. S., Ch. 157, § 119, the debtor' must have had a notice from a judge to him; his knowledge that the petition was filed does not suffice. Comm. v. Martin, 130 465. INSOLVENT, X. 1ST X. Insolvent Partnership. [See, also, ante, arts. 374 to 376.] 416. Insolvency proceedings against T. K.., on his petition, do not include a limited partner- ship, doing business under his name as the general partner, and which is not mentioned in the petition, notice, or assignment. Nutting o. Ashcroft, 101 300. 417. One, who has entered a firm as a special partner, without complying with the statute respecting limited partnerships, is liable to be included as a general partner of the firm, in proceedings in insolvency. Lancaster ». Choate, (5 A.) 87 530. 418. A petition by a general partnership, for the benefit of the insolvent law, must set forth the individual insolvency of the partners. Hanson v. Paige, (3 G.) 69 239. 419. But an allegation that "they are in- debted," etc., and that " they are unable to pay in full," suffices. Hanson v. Paige, (3 G.) 69 239. 420. A warrant upon such a petition, direct- ing the messenger to take possession of all the property "of the said insolvent debtors," Hanson v. Paige, (3 G.) 69 239. 421. The messenger's omission to take pos- session of the individal property of the partners, is not a ground for setting aside the proceed- ings, after an assignment has been made by the commissioner of all the property of the partner- ship, and of the individual partners. Hanson v. Paige, (3 G.) 69 239. 422. Such proceedings are not rendered in- valid, as to the actual partners, by including persons who are not partners. Hanson v. Paige, (3 G.) 69 239. 423. A person, not actually a partner, though held out as such, cannot be included in pro- ceedings commenced by an actual partner, in behalf of the partnership; and the supreme judicial court, on his application, will vacate the proceedings, so far as they relate to him. Hanson v. Paige, (3 G.) 69 239. 424. A manufacturing corporation and an individual, who have actually made a contract of copartnership, and acted as partners for many years, cannot, on the individual's petition, he proceeded against as a partnership; and the supreme judicial court will suspend such pro- ceedings, upon the application of the corpora- Whittenton Mills v. Upton, (10 G.) 76 582, 425. Where two partners sign a petition, and one dies before it is presented, a warrant, issued thereupon, may be treated as having been issued upon ike survivor's application, and will autnorize the messenger to take possession of ?„!.•■! P artll ership property, but not of the individual assets of the decedent. Durgins. Coolidge, (3 A.) 85 554 t 426 - Sufficiency of a petition by one partner io authorize proceedings against the firm. Pierce «. Stockwell, (11 C.) 65 236. ft.Where one partner goes into insolvency, upon ni S own petition, setting forth that he is insolvent, individually and as a member of the firm, but not that the firm is insolvent; and an assignment is made of his separate property, and his interest in the firm property, after pay- ment of its debts; he cannot afterwards institute proceedings against the partnership, without averring that the individual partners, as well as the partnership, are insolvent. Dearborn v. Keith, (5 C.) 59 224 428. Where proceedings, commenced by one partner only, against the partnership, are sus- pended, upon the application of a partner not notified, the case will be referred to a master, to inquire and report as to the truth of the allegations, before making a final decision. Thompson v. Thompson, (4 C.) 58 127. 429. The dissolution of a partnership, if there are assets to be administered and debts to be paid, does not prevent an application, either by a creditor or one of the partners, so as to reach the firm property and the individual property" of all the partners. G. S., Ch. 118, § 108; P. S., Ch. 157, § 120. Parker v. Phillips, (2 C.) 56 175; Thompson v. Thompson, (4 C.) 58 127. 430. Sufficiency of a petition by one partner in such a case. Parker v. Phillips, (2 C.) 56 175. 431. Where a warrant is issued against part- ners upon the application of a creditor, without notice to them, a formal waiver of notice by one does not validate the proceedings against the other. Thompson v. Snow, (4 C.) 58 121. 432. An assignment upon a petition against a partnership, of " all the estate, real and per- sonal, of said insolvent debtors," passes the individual property of each partner. Judd v. Gibbs, (3 G.) 69 539. 433. As real property, although purchased with partnership funds, vests in the partners to whom it is conveyed as tenants in common, a failure to dissolve an attachment thereupon, in an action upon a note given by the partners individually, after dissolution, will not rerder the partnership liable to involuntary proceed- ings. Ensign ■». Briggs, (6 G.) 72 329. 434. But in marshalling the assets, real prop- erty thus purchased, will go to the partnership creditors, in preference to the individual credi- tors. Pall Eiver Whaling Co v. Borden, (10 C.) 64 458. 435. And the assignee of a surviving partner is entitled to all such real ] roperty, and may maintain a bill against the administrator, widow, and heirs, of the deceased partner, to compel a transfer of the latter's moiety to him. Burnslde v Merrick, (4 Met.) 45 537; Howard v. Priest. (5 Met.) 46 582. 436. Under St. 1838, Ch. 163, § 21, where a partnership and its members are in insolvency under one commission, and the individual prop- erty of one partner is more than enough to pay his individual debts, the surplus goes to the partnership estate, before paying interest on the individual debts. Thomas v. JVlinot, (10 G.) 76 263. 788 INSOLVENT, X. 437. The individual estate of the partners goes first to the invidual creditors, although there is no joint estate and no solvent partner; and vice versa. Howe «. Lawrence, (9 0.) 63 553; Somerset Potters Works o. Minot, (10 C.) 64 593. 438. The assignees of both partners, under distinct proceedings, must administer the estate of the partnership. Harmon «. Clark, (13 G.) 79 114. 4~9. A sale of his interest by an outgoing partner to the remaining partner, for a valuable consideration, if bona fide, is valid, and the property is to be distributed to the latter's indi- vidual creditors, although both partners and the firm were insolvent at the time. Howe v. Lawrence, (9 C.) 63 553; Robb v. Mudge, (14 G.) 80 534. 440. For a similar ruling, where partnership property was converted into individual property, by the formation of a new firm, see Richardson v. Tobey, (3 A.) 85 81. 441. Partnership property, conveyed upon dissolution to one partner, who agrees to con- vey one half to his copartner after paying the debts of the firm, is to be applied, where both are insolvent, to the partnership debts. Harmon v. Clark, (13 G.) 79 11 443. Where partnership property, mortgaged by the partners to secure their joint and several individual note, for money applied to the sepa- rate use of one partner, was applied by the assignees of the partnership to the payment of that note, it was held, that the partnership was not entitled to contribution from the partner's individual estate. Harmon u. Clark, (13 G.) 79 114 443 Real property of a partner, attached by creditcrs of the partnership, and taken on exe- cution by the assignee of such partner and the partnership, after an order that the attachment continue, and the suit continue in the assignee's name, is to be applied to the partner's individual debts. Purple ». Cooke, (4 G.) 70 120. 444 Materials charged by the firm to a part- ner, and shipped to him for his works on the day of the fa.lure, are to be treated as his indi- vidual property. Fisher v. Minot, (10 G.) 76 360. 445. Rsal property, contracted to be pur- chased in the name of one partner, part of the purchase price of which was paid wholly or partly out of partnership funds, at the time of the insolvency, and the remainder by the assignee of the joint and individual estates, out of the partnership assets, is individual property. Richards v. Manson, 101 483. 446. The question whether money, found upon the person of a deceased partner, and mingled with other money known to be his own, is part- nership or private property, is to be submitted to a jury, if a question arises thereupon, in in- solvency proceedings by the survivor. Durgin ». Coolidge, (3 A.) 85 554. 447. A promise by a new partnership to an outgoing partner, to pay the firm debts, and the compulsory payment of one by him, do not create a debt, provable against the partnership. Morton v. Richards, (13 G.) 79 15. 448. A debt of the partnership is not prova- ble against the individual estate of one partner, who has received from his outgoing par.ner an assignment of all the partnership property, and has undertaken to pay the partnership debts, without evidence of his assent to the creditor to treat it as his individual debt. Wild ». Dean, (3 A.) 85 579. 449. The firm's guaranty of a partner's indi- vidual debt cannot be proved against its estate, by a creditor who knew that it was insolvent. Phillips v. Ames, (5 A.) 87 183. 450. Semble, that the English rule, requiring a creditor who has the security of the firm, and also that of the individual partners, to elect between them, does not prevail here. Borden «. Cuyler, (10 C.) 64 476. 451. Creditors of a dissolved partnership may prove their claims against a partner, who is in insolvency; and an account must be kept, distinguishing joint and individual debts so proved. Barclay v. Phelps, (4 Met.) 45 397. 453. Where a partnership creditor has proved his debt against a partner, who, on dissolution, agreed to pay the partnership debts, and has received a dividend thereupon, he cannot main- tain an action upon the debt against the other partner, although both have since removed to another state. Buckhn «. Bucklin, 97 256. 453. Under the statute of 1838, the assignee of the firm cannot prove, against the separate estate of either partner, an indebtedness to the firm. Somerset Potters Works v. Minot, (10 C.) 64 592. 454. A note, executed by a partner in the name of the firm, as a substitute for one exe- uted by them before proceedings in insolvency by the firm, may be proved against the joint 'Moseleyu. Ames, (5 A.) 87 163. 455. A debt, due from a partnership in an- other state, cannot share in the estate of a part- ner residing here, in competition with his individual creditors. Catskill Bk. v. Hooper, (5 G.) 71 571 456. A creditor who sues two persons as partners in another state, one of whom resides there and is served with process there, and judgment is thereupon taken against them both, under the laws of that state, cannot prove his debt here against the other, in proceedings commenced before the action was brought. Catskill Bk. v. Hooper, (5 G.) 71 574. 457. Under the statute of 1838, where the principal business of a partnership is to pur- chase supplies for, and sell iron manufactured at, iron works owned by one partner, a claim for supplies furnished to the firm, without knowledge that the latter only was interested in the works, can be proved only against the partnership estate. Tremlett v. Hooper, (10 G.) 76 354. INSOLVENT, X; XI— INSPECTION. ?89 458. Where an attachment of the individual property of one partner, by a creditor of the partnership, is dissolved by an assignment in insolvency of that partner, the creditor, on proving his debt, is entitled to his costs before mvment of the individual debts. v Buck v. Burlingame, (13 G.) 79 307. 459. Proof and allowance, against the estate of a partnership, of a bill of exchange, drawn upon the firm by one partner, will not prevent its subsequent proof against his individual Fuller «. Hooper, (3 G.) 69 334. 460. "Where two partners sign, individually, as sureties for another, the debt is provable aeainst the individual estate of each. Me parte Weston, (12 Met.) 53 1 461. But where a note is signed individually by partners, but on partnership account, it is provable as a partnership debt, although the indorsee was ignorant of the partnership, the payee and indorser having known all the facts. Agawam Bk. «. Morris, (4 C.) 58 99. 463. A note, indorsed in the firm name, given by a partner for his own use, without his part- ner's authority, to a bank having knowledge of the facts, is not provable against the partner- ship. Fall River U. Bk. v. Sturtevant, (12 C.) 66 372. 463. If the discharge of two partners is an- nulled as to one, who goes again into insol- vency, a partnership debt, which had been proved against the firm in the former proceed- ings, m y be proved anew. Gates v. Mack, (5 C.) 59 613. 464. In proceedings against a partnership, a partner, whose estate pays fifty-five per cent, upon the debts proved against it, is entitled to a discharge from his separate debts, and an al- lowance of five per cent, on the net produce of his separate estate, although the partnership estate does not pay fifty per cent, of the debts proved against it. /rare Baker, (8C.) 62 109. 465. A discharge of an insolvent from "all debts founded upon any contract made by him," obtained in proceedings instituted by bim in his individual capacity, and also as a member of a partnership, discharges him from liability for the partnership debts. Lothrop «. Tilden, (8 C.) 62 375. 466. A discharge expressly limited to the in- solvent's individual debts, obtained in similar proceedings by a surviving partner, discharges him from debts which he owes as such surviv- ing partner. In re Rice, (7 A.) 89 112. 467. A contract, made by one member of a partnership in insolvent circumstances, but against whom proceedings have not been taken, that the other party shall finish articles partly manufactured in the course of the firm's busi- ness, hold and sell them, and pay over to the firm the surplus, after deducting his expendi- tures, cannot be avoided by the assignee of the firm, as void under the insolvent law, or because it was made "by one partner only. Cames «. White, (15 G.) 81 378. XI. Insolvent Corporation. [See Bank, I, (3); Corporation, IX, and art. 129; Insurance Company, III ; also ante, art. 3, 151, 424. As to the effect of a decree appointing a receiver, etc., upon the agents of an insurance company, see Insurance, art. 67.] Insolvent estate of decedent. [See Executor and Administrator, VI.] Inspection; survey. [See, also, Provisions ; Weights and Measures.] 1. G. S., Ch. 49, §§ 122 to 124, relating to inspection of lime imported from Maine, were in violation of the provision of the United States constitution, giving congress the power to regu- late commerce. Higgins v. Casks of lime, 130 1. 2. Under St. 1809, Ch. 120 (see, now, P. S., Ch. 56, § 23), the inspector general of fish was liable in the first instance for any damage, caused by want of reasonable skill, care, and fidelity, on the part of one of his deputies, but not for an error of judgment; and his liability was not limited by the penalty of the bond which he was authorized to take. Pearson v. Purkett, (15 P.) 32 264. 3. In such an action, evidence that the fish had ^passed inspection at Baltimore was not con- clusive against the plaintiff. Pearson ». Purkett, (15 P.) 32 264. 4. As to the measure of damages in such an action, see Pearson «. Purkett, (15 P.) 32 264. 5. Under G. S., Ch. 49, §§ 36 to 39; P S., Ch. 56, §§ 25 to 28, each quality of mackerel, after being prepared for market, is deemed a different kind of merchandize, within the rule respecting the property which passes to a vendee . as against an attaching creditor of the vendor, where the contract of sale relates to one kind of property, and a different kind is delivered. Gardner ». Lane, (12 A.) 94 39. 6. The provision of G. S., Ch. 49, § 131; P. S., Ch. 63, § 6, respecting the appointment of surveyors of lumber in cities, is not com- pulsory upon a city, whose charter provides that it may establish such ordinances; and if lumber is sola, without being surveyed by surveyors appointed under the charter, the sale is void. Prescott v. Battersby, 119 285 7. As to the construction of a city ordinance, where a person purchased lumber for his own use without being surveyed, and the seller was allowed to recover the price, see Howe v. JSTorris, (12 A.) 94 82. 8. A city ordinance prohibiting the sale of timber, without a survey, does not apply to timber delivered there for a specific purpose, under a contract made elsewhere. Briggs v. Light Boat, (7 A.) 89 287. 9. R. S., Ch. 28, § 154, requiring lumber to be surveyed before sale, did tot apply to a sale 790 INSPECTION— INSUKANCE, I, (1). in another state, of lumber in this Common- wealth. Hardy v. Potter, (10 G.) 76 89. 10. Under the R. S., a surveyor of lumber holds his office, until another is chosen in his place, and qualifies. Dow v. Bullock, (13 G.) 79 136. H. Under St. 1869, Oh. 152, § 1; P. S., Ch. 59, § 6, fees may be exacted under a city ordi- nance, only for the purpose of compensating the inspector of petroleum; and if the mayor and aldermen provide for his compensation by a salary, and require him to pay the fees into the city treasury, he cannot maintain an action for his fees against an owner of petroleum. Brophy ». Marble, 118 548. . 12. R. S., Ch. 28, § 200, did not prohibit the sale of wood by the side of the land where it was cut, although it is not of the prescribed length for cord wood. See now P. S., Ch. 60, § 73. Colton «. King, (2 A.) 84 317. 13. So bark, lying on the owner's land in the country, was not required to be measured before it was sold, by R. S., Ch. 28, § 201. See now P. S., Ch. 60, § 74. Huntington v. Knox, (7 C.) 61 371. 14. As to the construction of "thoroughly dried," in St. 1860, Ch. 99, § 6, relating to hides and sole leather. See now P. S., Ch. 56, § 72. Tenney i>. How, (24 P.) 41 335. 15. A note for shingles, not of the size pre- scribed by St. 1783, Ch. 15, cannot be enforced. Wheeler v. Russell, 17 258. 16. G. S., Ch. 49, § 116; P. S., Ch. 76, § 4, providing that leather shall not be deemed merchantable until stamped, does not require it to be stamped before it is sold, but gives the manufacturer an option to stamp it. Clark v. Oliver, (3 A.) 85 336. Insurance. I. Rules common to the different Kinds of Insurance. (1.) The contract; how made; how can- celled. (2.) Insurable interest. (3.) Application for insurance. (4.) Payment of the premium; waiver. (5.) Miscellaneous rulings respecting insur- ance agents. (6.) Notice and proofs of loss; acceptance and waiver. II. Accident Insurance. III. Fire Insurance. (1.) Policy; statutory form; when affected by conditions or warranties. (2.) Representation; warranty; concealment; fraud; effect thereof. (3.) Property and interest covered. (4.) Risks assumed. (5 ) Alienation of the property insured. (6.) Assignment of the policy. (7.) Other insurance. (8.) Increase of risk. (9.) Overvaluation; illegality; prohibited use. (A.) Overvaluation. (B.) Illegality. (C.) Prohibited use. (10.) Mortgagee. (11.) Remedies and defences; when and how suit brought; parties; pleadings; proceedings. (12.) Evidence. (13.) Damages. (14.) Insurer's remedy upon payment. IV. Life Insurance. (1.) Policy; effect thereof; application there- for. (2.) When the policy is or is not forfeited. (3.) When and to whom the insurance is payable; action upon the policy. V. Marine Insurance. (1.) The policy; validity; interest and prop- erty covered. (2.) Other insurance. (3.) Premium; return thereof; offset of prem- ium and loss. (4.) Assignment of the policy or property insured. (5.) Sea worthiness; evidence thereupon. (6.) Other warranties; representation; con- cealment; fraud. (7.) Perils insured against or excepted. (A.) In general. (B.) Seizure; capture; detention, (O.) Loss of freight. (X>.) Barratry. (E.) Collision. (8.) Beginning and end of risk. (9.) Voyage; deviation; transshipment (10.) Total loss. (11.) Abandonment. (A.) The right to abandon, (S.) When necessary; waiver thereof. ((7.) Computation of a constructive total loss. (D.) When and how made; acceptance and effect thereof. (12.) General average. (13.) Partial loss or particular average. (14.) Adjustment. (15.) Action upon the policy; damages; evidence. [See. also. Insurance Company.] I. Rules common to the different Kinds of Insurance. (1.) The contract j how made; how cancelled. 1. A contract of insurance is an agreement by which one party, for a consideration, pro- INSUEANCE, I, (1). 791 mises to make a certain payment in money, upon the destruction or injury of something, in which the other party has an interest. Comm. v. Wetherbee, 105 149. 2. The contract is personal with the insured; and if he parts with his interest in the property, before it is destroyed or injured, the benefit of the insurance does not pass to the purchaser. Wilson ». Hill, (3 Met.) 44 66. See, also, Felton «. Brooks, (4 C.) 58 203. 3. It makes no difference that the organiza- tion which enters into the contract is benevo- lent, not speculative; or that the sum to be paid by it is not fixed, but graduated by the number of members; or that a portion of the premiums is to be paid upon the uncertain periods of the deaths of the members. Comm. v. Wetherbee, 105 149. 4. A contract of insurance need not be in ■writing. Sanborn v. Fireman's Ins. Co., (16 G.) 82 448. See, also, McCulloch v. Eagle Ins. Co., (1 P.) 18 278; Kennebec Co. t>. Augusta Ins. & B. Co., (6 G.) 72 204; Baxter ». Massasoit Ins. Co., (13 A.) 95 320; Putnam v. Home Ins. Co., 123 324. 5. A corporation, chartered with authority to make contracts of insurance by the signature of the president, or such other officer as the by-laws shall direct, may make an oral contract of insurance. Sanborn i>. Fireman's Ins. Co., (16 G.) 82 448. 6. An oral contract of insurance per verba, de presenti, is not the less binding, because a policy is to be thereafter executed; and where the in- surer's agent, after such a contract, took the policy to the agent of the insured, to deliver it, and receive the premium, but failing to find Mm, retained it for a month, and the property was destroyed before delivery, it is for the jury to determine whether the contract was at an end; and evidence of usage is admissible. Baxter v. Massasoit Ins. Co. , (13 A.) 95 320. 7. But where the testimony expressly, or by necessary inference, shows that the only form of contract contemplated by the parties was a policy, to be issued by the insurer, and delivered to the insured, and the policy is made out, but a loss happens before the contract is completed by such delivery, the insured cannot recover. Markey v. Mutual Benefit Ins. Co., 118 178; Myers v. Liverpool & L. & G. Ins. Co., 121 338. See, also, Thayer «. Middlesex Ins. Co., (10 P.) 27 326; Real Estate Ins. Co. v. Roessle, (1 G.) 67 336; Hoyt v. Mut. Benefit Ins. Co., 98 539; Marks v. Hope Ins. Co., 117 528; Watkins «. Bowers, 119 383. , 8. Where a written policy has been executed, it may be extended or otherwise varied orally. Kennebec Co. v. Augusta Ins. Co,, (6 G.) 72 204; Dodd v. Gloucester Ins. Co., 120 468. 9. Where the plaintiff wrote by mail to the defendants, inquiring upon what terms they would insure his vessel, and on the first of the month they answered that they would insure it at a certain rate, and on the second they wrote another letter retracting the former, and the plaintiff, before receiving the last letter, mailed an acceptance of the first, it was held that the contract was complete. McCulloch ii. Eagle Ins. Co., (1 P.) 18 278. 10. A policy which provides that it shall not be in force, until it is countersigned by an agent or officer, is invalid until it is so countersigned, although the person to countersign it is the insured, and the policy has been received and retained by him. Badger v. American Popular Ins. Co., 103 244. 11. So the possession of a policy by the insured, without p waiver on the part of the insurer, of any condition upon which it is to take effect, does not show a delivery of it in completion of the contract. Whiting v. Mass. M. L. Ins. Co., 129 240. 12. A policy is not void, because it has no date; and the date therein inserted may be con- trolled by oral testimony. Lee r>. Mass. Ins. Co., 6 208. 13. And a policy "from August 1, 1854, to August 1, 1854," may be shown to be intended as a policy for five years by an indorsement thereupon, and a reference to the application and deposit note. Liberty Hall Ass'n «. Housatonic Ins. Co., (7 G.) 73 261. 14. A letter from the insured, holding a policy, to the insurers, stating by mistake that lie had not received his policy, is not a waiver or rescission of the policy. v. Pew, lOl 555. 15. Where a policy of fire insurance to A is sent to A's agent, and soon afterwards the agent returns it to the company, with a request to have it made payable to B, and the company accordingly cancels the first policy and sends to the agent a new one, and he retains it seven months, the transaction having been without authority from A, this is not, as a matter of law, an acceptance of the new policy by A. Bennett ®. City Ins. Co., 115 241. 16. Where A made an application for fire insurance to'B, who was agent for the B. com- pany and the W. company, and B placed the risk in the R. company, and made out a policy accordingly, terminable at the option of the company; and the R. company, on being in- formed of the facts by B, notified him that it refused to take the risk, whereupon B trans- ferred the risk on his books to the W. com- pany, and a loss occurred before A had notice of the facts; it was held that the R. company was and the W. company was not liable. Massasoit Steam Mills «. Western Ass. Co., 125 110. 17. Where the policy is made terminable by the insurer upon notice, and refunding a ratable portion of the premium, notice, without an offer to return part of the premium, is not sufficient. White v. Connecticut Ins. Co., 120 330. „8. An action on a note, given for the pre- mium on a policy of insurance, will not be defeated by proof of an unexecuted oral V92 INSURANCE, I, (1), (2). agreement to cancel the policy and surrender the note, on payment of a portion of the latter. Columbia Ins. Co. v. Stone, (3 A.) 85 385. 19. A person who accepts a policy of insur- ance, and holds it as a contract binding upon the insurer, is conclusively presumed, in the absence of fraud, to have read it, and to have assented to its terms. Monitor Mut. F. Ins. Co. v. Buffum, 115 343; Tuttle «. Travellers' Ins. Co., 134 175. See, also, Cluff v. Mutual Ben Ins. Co., (13 A.) 95 308; Cluff v. Mut. Ben. Ins. Co., 99 317. C2.) Insurable Interest. 20. As to a wager policy in general, see Amory «. Gilman, 2 1; Loomis v. Eagle Life and H. Ins. Co., (6 G.) 72 396. 21. The rule, with respect to fire and marine insurance, is that any person has an insurable interest in property, by the existence of which he receives a benefit, or by the destruction of which he will suffer a loss, whether he has or has not any title in, or lien upon, or possession of, the property itself. Putnam v. Mercantile Ins. Co., (5 Met.) 46 386; Eastern Railroad v. Relief F. Ins. Co., 98 420; Williams v. Roger "Williams Ins. Co., 107 377; Amsinck v. American Ins. Co., 129 185. 22. Thus the mortgagor and the mortgagee, the grantee who has given a defeasance, and the grantor to whom it was given, and one liable as indorser upon a mortgage note, have each an insurable interest in mortgaged prop- erty, although the other or a third person may be bound by contract to keep the property in- sured. Locke v. North Am. Ins. Co., 13 61; Higgiason ». Dall, 13 96; Gordon i>. Mass. Ins. Co., (2 P.) 19 249; Strong v. Manuf. Ins. Co., (10 P.) 27 40; Worth- ington v. Bearse, (12 A.) 94 382; Clark D.Washington Ins. Co., lOO 509; Haley ■». Manuf. Ins. Co., 120 292; Walsh v. Philadelphia F. Ass'n, 127 383. 23. So one, who has made an oral contract to purchase a vessel, has an insurable interest, notwithstanding the statute of frauds. Amsinck v. American Ins. Co., 129 185. 24. So one has an insurable interest, who holds a contract for a purchase, upon which he has made a part payment. Rider v. Ocean Ins. Co., (20 P.) 37 259. 25. Held, however, that one who had assigned a vessel for payment of his debts, had no insur- able interest in her, unless there would be a surplus. Lazarus v. Comm. Ins. Co., (5 P.) 22 76 26 But a hirer of a vessel has an insurable interest, and if he is released from the hire by loss of the vessel, he still has an insurable in- terest in the freight. Bartlet v. Walter, 13 267; Clark v. Ocean Ins. Co., (16 P.) 33 289. 27. One has an insurable interest in his build- ing standing on another's land. Converse v. Citizens' Ins. Co., (10 C.) 64 37. 28. Or in a building erected upon his land by another, without any contract that it should be personal property, although by one to whom he has agreed to sell the iand. Oakman». Dorchester Ins. Co., 98 57. 29. Or in goods sold by him, and partly paid for, if the contract of sale is yet executory. Boston & S. Ice Co. v. Royal Ins. Co.; (12 A.) 94 381. 30. Or in goods purchased by him, and not paid for, if the legal title has passed to him. Little v. Phoenix Ins. .Co., 123 380. 31. In the absence of any specific inquiry by the insurer, or express stipulation in the policy, no particular description of the nature of the title of the insured, or of the insurable interest, is necessary, either in a marine or a fire policy. Williams ®. Roger Williams Ins. Co., 107 377. See, also, Holbrook v. Brown, 2 280; Oliver ». Greene, 3 133; Strong v. Manuf. Ins. Co., (10 P.) 27 40; Finney *. Warren Ins. Co., (1 Met.) 42 10; King «. State Ins. Co., (7 C.) 61 1; Fowle«. Springfield Ins. Co., 122 191; Little ®. Phoenix Ins. Co., 123 380; Walsh v. Philadelphia F. Ass'n, 127 383. 32. In a life policy, the insured has an insur- able interest, if he has any interest in the life of the cestui que vie; as that his temporal affairs, his just hopes and well-grounded expectations of support, patronage, and advantage in life, will be impaired. Loomis v. Eagle L. & H. Ins. Co., (6 G.) 72 396. 33. Every man has an interest in his own life to any amount at which he chooses to value it, and may insure it accordingly. Loomis v. Eagle L. & H. Ins. Co., (6 G.) 72 396. 34. And he may make the insurance money payable to a person having no insurable interest in his life, who will be entitled to recover it upon his death. Campbell v. New England Ins. Co., 98 381. 35. A parent has an insurable interest in the life of a child, and a child in that of a parent. Loomis v. Eagle L. & H. Ins. Co., (6G.) 72 396. 36. An unmarried sister has an insurable Interest in the lif e of a brother who supports her. Lord®. Dall, 12 115. 37. A creditor has an insurable interest in the life of a member of a partnership, which is indebted to him, although the other partner is solvent. Morrell v. Trenton Ins. Co., (10 C.) 64 282. INSURANCE, I, (3), (4). 793 (3.) AppHcat lon for Insurance. fflor additional rulings respecting warranties, ma- terial and immaterial representations fraud etc in Explications, see j) st, III, (1); 111,(2); IV, (1); V, (5), V (6) For rulings upon the special statutes relat- tajr to warranties, etc.. upon lire policies, see post, 111,(1)-] 38. Where a written application for a life insurance policy is made, upon which, the policy is issued, or where, in a fire insurance policy, the application is made a part of the contract, in either case, if in fact the represen- tations made in it are untrue in any material respect, an action at- law will not lie upon the policy. And oral testimony cannot be received to show, either that the insurer knew that the representations were untrue, or that the untrue representations were inserted in the application by the agent, employed by the insurer to solicit the insurance, without the knowledge of the applicant, who orally stated the truth to such agent. Abbott v. Shawmut Ins. Co., (3 A.) 85 213; McCoy v. Metropolitan Ins. Co , 133 82. See, also, Stetson v. Mass. Ins. Co., 4 330; Houghton v. Manuf. Ins. Co., (8 Met.) 49 114; Holmes v. Charles- town Ins. Co., (10 Met.) 51 211;Vose«. Eagle Ins. Co., (6 C.) 60 42; Daven- port v. N. E. Ins. Co., (6 C.) 60 340; Clark «. New England Ins. Co., (6 C.) 60 342; Barrett t>. Union Ins. Co., (7 C.) 61 175; Lowell «. Middlesex Ins. Co., (8 C.) 62 127; Hayward v. N. E. Ins. Co., (IOC.) 64 444; Wilbur fl. Bowditch Ins. Co., (10 C.) 64 446; Miles v. Con- necticut ins. Co., (3 G.) 69 580; Lee e. Howard Ins. Co., (3 G.) 69 583; Jenkins v. Quincy Ins. Co., (7 G ) 73 370; Kibbe «. Hamilton Ins. Co., (11 G.) 77 163; Draper «. Charter Oak Ins. Co., (2 A.) 84 569; Tebbetts v. Hamilton Ins. Co., (3 A.) 85 569; Falis v. Con- way Ins. Co. (7 A.) 89 46; Towne v. Fitchburg Ins. Co , (7 A.) 89 51; Campbell «. New England Ins. Co., 98 381. i [As to the remedy in equity, see Equity Juris- diction. II, (IS).] 39 Where the application stipulates that its statements are true, "so far as regards the risk," that does not prevent the application of the rale, as respects a misrepresentation as to the title, or other material misrepresentation. Friesmuth v. Agawam Ins. Co., (10 C.) 64 587. 40. Nor is the rule varied by the fact that the agent was a director of the company. Lowell v. Middlesex Ins. Co., (8 C.) 62 127. , 41 Where the policy is expressed to be issued upon a written application, which is made a _ part thereof, but in fact no written application was ever made, it is not for that reason void; or if it was issued upon a defective application, if that was correct as far as it went. Blake v. Exchange Ins. oC, (12 G.) 78 265. 42. Where an application for a policy is made in writing, the insurer has no right to r «y upon an oral representation, made to the insurer by a clerk of the broker who procured Vol. I— ioo the insurance; and such a representation, though false, will not vitiate the policy. Dolliver v. St. Joseph Ins. Co., 131 (4.). Payment of the premium; waiver. 43. Where a policy of life insurance contains a provision, that it shall not take effect until the advance premium is paid, during the life of the insured, a payment thereof, during his life, by a third person, without his knowledge, is of no effect, although made with his money; and his administrator cannot ratify the act. The money may be recovered back by the administrator. Whiting o. Mass. M. L. Ins. Co., 129 240. See, also, Thayer «. Middlesex Ins. Co., (10 P.) 27 326; Hoyt «. Mut. Benefit Ins. Co., 98 539; Markey v. Mut. Benefit Ins. Co., 103 78. 44. But where the agent of the company received part of the premium for a fire policy from the assured, and gave him a receipt for the balance, and paid the entire sum to the com- pany, retaining the policy in his hands until a loss,the jury will be warranted in finding that the policy was duly issued and delivered. Wheeler v. Watertown Ins. Co., 131 1. See, also, White v. Connecticut Ins. Co., 120 330. 45. For a case in many respects similar, where the ruling was the same, with respect to a policy of life insurance, see Chickering v. Globe Ins. Co., 116 321. 46. For a similar ruling, where the agent of a life insurance company, without authority to waive forfeitures, received and accounted for the payment of an overdue premium note, given upon a policy terminable in case of fail- ure to pay it, see Hodsdon v. Guardian Ins. Co., 97 144. 47. If a fire policy contains a stipulation that it shall be invalid, until the premium is paid at the insurer's office, and another stipulation that any person receiving applications and for- warding premiums is the agent of the applicant, and not of the insurer, payment to the insur- ance agent is not sufficient, although the insurer was in the habit of settling accounts with him monthly, and he tendered the premium after the loss. Mulrey ». Shawmut Ins. Co., (4 A.) 86 116. 48. So where the treasurer of a mutual insurance company orally promised the insured, that if a loss happened he would see the prem- ium paid, and the policy was not delivered. Buffum v. Fayette Ins. Co., (3 A.) 85 360. 49. It is not evidence of waiver of a by-law of a mutual insurance company, requiring the insured to pay the cash premium and deliver the deposit note, before the policy takes effect, that it was made out and recorded under an agreement with the president; that the directors had previously voted, that if a premium \ as not paid in sixty days after the policy was issued, the policy should be cancelled; that a 794 INSUEANCE, I, (4), (5). demand of payment did not include any sug- gestion as to the invalidity of the policy; and that after the loss, an assessment was laid to pay it. Brewer v. Chelsea Ins. Co., (14 G.) 80 203. See, also, Baxter v. Chelsea Ins. Co., (1A.) 83 294. 50. In an action upon an agreement to insure, evidence is competent to prove a usage, that where there has been an oral agreement to insure, and the terms are agreed upon and entered on the insurer's books, the contract is considered binding, although the premium has not been paid. Baxter v. ,Massasoit Ins. Co., (13 A.) 95 320. 51. Where a life policy is terminable upon failure of the insured to pay a premium note when due, the burden of proving nonpayment is upon the insurer. Hodsdon®. Guardian Ins. Co., 97 144. 52. A life policy, terminable by failure to pay a premium note, is terminated by failure to pay an instalment due thereupon. Pitt v. Berkshire Ins. Co., 100 500. 53. Where the advance premium on a life policy became due on Sunday, it is not payable until Monday. Hammond ». American Ins. Co., (10 G.) 76 306. See, also, Howland v. Conti- nental Ins. Co., 121 499; and G. S., Ch. 53, § 7; P. S., Ch. 77, § 8. 54. Where, in such a case, the premium was tendered to the insurer's ag^nt on Monday, and refused, as too late, the agent claiming that the policy was forfeited, ana the insured went away, and gave no notice to the insurer until eleven months afterwards, that he considered the policy ended, it was held, that an action to recover back premiums, could not be main- tained, whether the tender was or was not in season. Howland i>. Continental Ins. Co., 121 499. 55. And where the insured, in a life policy, refused to pay a premium note when it was due, and declared that he "abandoned the whole thing," but retained the policy, and the insurer retained the note, and did not assent to the abandonment, and the language of the policy was such, that the court construed the forfeiture clause to apply to nonpayment of a subsequent premium note, it was held, that the policy re- mained in force. McAllister r>. Kew England Ins. Co., 101 558. 56. Where the agent of a life insurance com- pany received, from an applicant, his accept- ance of a draft for the premium, negotiated the draft, and delivered to him the policy, and for- warded to the company the proceeds of the draft, all of which was contrary to his instruc- tions as to the mode of receiving the premium; and upon receiving the policy the insured, be- ing dissatisfied with a condition therein, re- turned it to the agent, and demanded a return of the draft; it was held, that after paying the draft at maturity, the insured could not recover back the amount thereof. Leonard v. Washburn, 100 251. 57. An underwriter who has delivered to a broker, for the insured, a marine policy in his name, containing an acknowledgment of re- ceipt of the premium, cannot insist, as a condi- tion precedent, on his own receipt of the pre- mium note, which was delivered by the insured to the broker upon the receipt of the policy, and afterwards delivered to the underwriter. Mayo v. Pew, 101 555. 58. Where a fire policy fails to attach, by reason of fraudulent representations of the in-' sured, he is entitled to a return of the pre- mium. Friesmuth ®. Agawam Ins. Co., (10 C.) 64 587. [As to the rules respecting the return of the pre- mium paid upon a marine policy, eeepost, V, (3.)] (5.) miscellaneous rulings respecting Insurance agents. [See, also. Agency; and for rulings respecting agents in particular cases, see under all the captions hereof, passim.] 59. An agent, acting under the power of at- torney for an insurance company, authorizing him "to effect insurance," and "for this purpose to survey risks, fix the rate of pre- mium, and issue policies of insurance signed by the president," etc., has the right to bind the company by an oral contract of insurance. Sanborn v. Fireman'.s Ins. Co., (16 G.) 82 448. See, also, Putnam v. Home Ins. Co., 123 324. 60. But a sub-agent employed by such a gen- eral agent to solicit, receive, and forward appli- cations, and to deliver and collect premiums upon policies issued by the company, has no apparent power to bind the company by a con- tract of insurance. Markey «. Mut. Benefit Ins. Co., 103 78. See, also, McCoy v. Metropolitan Ins. Co., 133 82. 61. On the question of the authority of the agent of an insurance company to make a con- tract within his apparent power, instructions and rules of the company, n.t referred to in the application or policy, or otherwise commu- nicated to the applicant for insurance, are inad- missible to limit the authority. Markey v. Mut. Benefit Ins. Co., 103 78. See, also, Citizens' Ins. Co. ». Sort- well, (8 A.) 90 217. 62. An agent intrusted with blank policies, to be filled up and issued by him, has authority to add to a fire policy a memorandum that the building is in the course of construction, although the application, which is referred to in the policy as a part thereof, states that the building is finished; and his failure to inform the company of the memorandum, makes no difference. Gloucester Man. Co. v. Howard Ins. Co., (5G.) 71 497. 63. Or a memorandum consenting that in- sured building shall remain unoccupied. Wheeler «. Watertown Ins. Co., 131 1. 64. A provision in a policy that any person, other than the insured, who may have procured INSUEANCE, I, (5), (6). 795 the policy, shall be deemed the agent of the In- sured, not of the i:. surer, " in any transaction relating to this insurance," refers only to the original transactions connected with obtaining the insurance, and does not make such a person an agent to receive notice of the termination of the insurance, during the life of the policy. White i>. Connecticut Ins. Co., 120 330. 65. A similar provision will bar a defence to an action by a mutual insurance company upon a deposit note, founded upon fraudulent repre- sentations as to the condition of the company, by one who had acted as its general agent, which induced the insured to take out the policy. Shawmut Ins. Co. v. Stevens, (9 A.) 91 332, distinguishing Fogg v. Griffin, (2 A.) 84 1. See, also, Abbott v. Shawmut Ins. Co., (3 A.) 85 213; Mulrey v. Shawmut Ins. Co., (4 A.) 86 116. 66. For a ruling that in a particular case, a policy issued by an agent did not bind the com- pany, because his authority was revoked, ex- pressly, and by the loss of the property to be insured, see Wilson v. New Hampshire Fire Co. , 140 210. 67. An interlocutory decree against an insur- ance company, appointing, a receiver, with power to continue the business of the company, in the receipt of premiums, and the payment of necessary expenses, and enjoining the officers and agents from receiving and disposing of the property, except to deliver it to the receiver, does not revoke the authority of an agent to receiva the premium on a policy issued by the company ; and the assured cannot recover back such a premium, paid after the decree, he and the agent being ignorant thereof. Rice v. Barnard, 127 241. 68. Where a marine policy was made in the name of "A, and whoever else it might con- cern," the agent for A, having possession of the policy, may adjust the loss and surrender the policy. Erick v. Johnson, 6 193. 69. An insurance company is bound by the representations, respecting its capital paid in and invested, made to the insured by an agent, appointed by it to solicit risks, receive and transmit applications, receive back and deliver policies, and receive the premiums therefor, there being no stipulation in the application or policy, making him the agent of the insured. Fogg v. Griffin. (2 A.) 84 1. See, ante, art. 65. TO The fact that an insurance company has paid awards as to losses, made by a person to TOom their agent has referred the questions mmm thereupon, is not evidence of the agent's authority to appoint another person as afbitra- Turner v. Quincy Ins. Co., 109 568. 11. St. 1861, Ch. 170, and St. 1864, Ch. 114; e. »., Ch. 119, £§ 183, 184, do not change the «ues of the common law, as to insurance agents' powers. Harrison v. City Ins. Co., (9 A.) 91 H 1 ' darkey «. Mut. Benefit Ins. Co., 103 is\ Wood d. Fireman's Ins. Co., 126 , 72. Where the habit of dealing, between an insurance company and a broker, has been for the company to deliver policies to the broker and charge him with the premiums, and for him to collect the premiums and account monthly, the company may maintain an action again- 1 him to recover the amount of premiums collected, although it was insolvent when the policies issued; but not to recover premiums not paid upon policies delivered to, although not returned by him. Monitor Ins. Co. v. Young, 111 537. _ 73. Where a partnership is the agent of an insurance company, each partner has all the powers of the firm. Kennebec Co. v. Augusta Ins. Co., (6 8) 72 204. [As to the rule that notice to, or the oral declara- tions of the agent of the Insurer, before, or at the time of issuing the policy, will not avail the insured, it the written application or policy contains a war- ranty which has been broken, or a condition which in '(2?- e v T (6n ted ' see ' atoo * ""'"' I ' &y ' P< "*' m ' (1,; (6.) Notice and proofs of loss; accept- ance and waiver. 74. Knowledge by a fire insurance company's agent of a fire, by which a loss has occurred, does not relieve the insured from the duty of giving notice and making proof of the loss, as required by the conditions of his policy. Smith v. Haverhill Ins. Co., (1 A.) 83 297. 75. Notice claiming for a total loss of a wooden building, without mentioning the brick work and stone work unconsumed, suffices. Wyman v. People's Eq. Ins Co., (1 A.) 83 301. 76. Where no specific time is mentioned in the policy, reasonable notice suffices, although the act of incorporation, and a by-law printed upon the policy, require a specific time. Kingsley v. N. E. Ins. Co., (8 C.) 62 393. 77. If a limited partnership contains only one general partner, in whose name the business is carried on, it is no objection to the proofs of loss under a fire policy, in the absence of fraud or deceit, that they state that the insured prop- erty belonged to him, and no other person had an interest therein. Clement v. British Am. Ass. Co., 141 298. 78. A clause in a life policy, requiring " due notice and proof " of the death, does not make a physician's certificate an essential part of the proof, unless a usage, made known to the plain- tiff before he took the policy, so requires. Taylor v. jEtna Ins. Co., (13 G.) 79 434. 79. And afire policy, requiring "notice" and ' ' proof " of loss, without specifying what proof, is sufficiently complied with by a letter giving the notice, unless the insurer calls for further particulars. Heath v. Franklin Ins. Co., (1 C.) 55 257 80. Where the insured is required to state the value of the property lost and of that saved 796 INSUEANCE, I, (6). his statements in the proofs that there was a total loss, sufficiently complies with the require- ments, although some was saved without his knowledge. Harkins «. Quincy Ins. Co., (16 G.) 82 591. 81. "Where the policy provides that any fraud or false swearing ia the proofs of loss shall for- feit any claim under the policy, an honest mis- take of fact, or other misstatement, will not forfeit the claim. Little v. Phcenix Ins. Co., 123 380. * 82. But if the mistake is in the statement of fact, which avoids the policy by the express terms thereof, and no amended statement has been furnished to the insurer, before the trial of an action upon the policy, the action cannot be maintained. Campbell v. Charter Oak Ins. Co., (10 A.) 92 213; City P. C. 8av. Bk. v. Penn'alns. Co., 122 165. 83. The insured cannot recover, without a full compliance with all of the provisions of the policy, respecting notice and proofs of loss, unless they have been expressly or impliedly waived by the insurer. Thus, if the nature and value of the interest of the insured are re- quired to be stated, notice and proofs, other- wise sufficient, but omitting that statement, will not entitle him to recover. Kingsley ». N. E. Ins. Co., (8 C.) 62 393; Wellcome «. People's Ins. Co., (3 G.) 68 480; Shawmut S. R. Co. ■». People's Ins Co., (12 G.) 78 535. 84. So if the policy specifies a time within which proofs are to be made, they must be made within that time. Smith v. Haverhill Ins. Co., (1 A.) 83 297; Eastern Railroad v. Relief Ins. Co., 98 420. 85 So if the certificate of a magistrate is re- quired, the production of such a certificate, unless the insurer has waived it, or prevented the obtaining of it, is a condition precedent to recovery. Johnson v. Phcenix Ins. Co., 112 49; Dolliver v. St. Joseph Ins. Co., 131 39, 86. A provision that the magistrate, whose certificate is required, shall not.be "concerned in the loss as a creditor," means that he shall not have a specific interest, by way of hen, and does not disqualify a magistrate who is a gen- eral creditor. Dolliver v. St. Joseph Ins. Co., 131 39. 87. It suffices to comply with the condition as to proofs, as far as the nature of the case will permit. Eastern Railroad ». Relief Ins. Co., 98 420. 88. A notice to a life insurance company, of the death of one, whose life is insured by it, may refer, for proof of the death, to affidavits filed with the company by the holder of another policy on the same life. Loomis b. Eagle Ins. Co., (6 G.) 72 396. 89. The preliminary proof of loss upon a marine policy, need not be such as would be required in a court of justice. Lovering v. Mercantile Ins. Co., (12 P.) 29 348. 90. A provision in a fire policy, that the as- sured shall make affidavit, stating " the whole value and ownership of the property insured," does not require him to make any statement as to incumbrances. Taylor v. ..Etna Ins. Co., 120 254. 91. A general statement of ownership by the assured, is a sufficient compliance with the pro- vision in the statutory form of policy, requiring ' him to set forth his interest in the property; and the fact that he holds the property under an agreement to purchase it, does not vitiate, he having given his note for the balance due. Hinckley v. Germania Ins. Co., 140 38. 92. Upon the trial of an action upon a life policy, the plaintiff, to show the notice and proofs called for by the policy, called a witness, who testified that he delivered to the defendants some affidavits, with some cuttings from news- papers, and letters between persons not parties; and upon the production of these by the de- fendants, the plaintiff put in evidence the affida- vits, but not the cuttings or the letters; and the judge refused to require him to do so, or to al- low the defendants to do so. It was held, that the defendants were not prejudiced by the ruling, if the death was sufficiently shown by the papers produced. ClufE v. Mutual Ben. Ins. Co., 99 317. 93. If the defendants, in an action upon a marine policy, put in evidence some of the papers constituting the preliminary proofs of loss, without objecting to the sufficiency thereof, at any time during the trial, it is too late to raise the objection upon the argument of excep- tions. Graves v. Washington Ins. Co., (12 A.) 94 391. 94. In an action upon a marine policy, where there was no express evidence of preliminary proofs, but proof of an abandonment, a demand of payment, and an agreement to arbitrate, and it appeared that the insurers had refused pay- ment on the ground of unseaworthiness only, it was held that they had waived their right to further preliminary proofs, or that the giving of such proofs might be inferred. Martin «. Fishing Ins. Co., (20 P.) 37 389. 95. And a general refusal by the insurers in a marine policy to pay a loss, and a subsequent negotiation for the settlement thereof, without objection to the form of the preliminary proofs, constitute a waiver of any objection thereto. Graves v. Washington Ins. Co., (12 A.) 94 391. 96. So where the insurer in a fire policy re- ceives proofs, and makes no objection to their sufficiency within a reasonable time, or places his refusal to pay the loss on another giound; the jury are justified in finding, if not required to find, a waiver of any defects therein. Butterworth «. Western Ass. Co., 132 489. See, also, Priest «. Citizens' Ins. Co., '3 A.) 85 602; Eastern Railroad v. Relief Ins. Co., 105 570. 97. So if the assured in a marine policy pre- nts to the underwriter a statement, in proper INSURANCE, I, (6); II; III, (1). 197 form, of a constructive total loss, to which he makes no objection, the fact that it is not also stated as a partial loss, will not prevent a _ re- covery for a constructive total loss, notwith- standing a provision forbidding an abandon- ment for damage, unless the amount for which the insurer would be liable, under an adjustment as for a partial loss exceeds half the amount insured. Tabers. China Ins. Co., 131 239. 98. So a policy requiring notice of loss, with certain particulars, does not justify the insurers in objecting to the want of the required par- ticulars, if they declined paying for other reasons. Clark v. New England Ins. Co., (6 C.) 60 342; Underbill v. Agawam Ins. Co., (6C.) 60 440. 99. So waiver of any proofs of loss under a fire policy may be proved by evidence, that the officers examined the premises, and told the assured that no further proofs were necessary; and the directors afterwards appointed a com- mittee to adjust the loss; and then put the re- fusal to pay on other grounds, after the time to make the proofs had elapsed. - Priest s. Citizens' Ins. Co., (3 A.) 85 602. See, also, Blake v. Exchange Ins. Co., (12 G) 78 265; Smith v. Haverhill Ins. Co., (1 A.) 83 297. 100. But a mere submission of the claim to arbitration is not a sufficient waiver. Pettengill s. Hinks, (9 G.) 75 169. 101. The general agent of a foreign insurance company has power to waive proofs of loss. Eastern Railroad v. Relief Ins. Co., 105 570; Little s. Phoenix Ins. Co., 123 380. 102. But proof that an agent was authorized a receive applications, take risks, settle rates of premium, and issue policies, will not, in the absence of evidence that he was also the general agent of the company, warrant the jury in finding that he was authorized to waive proofs of loss. Lohnes v. North America Ins. Co., 121 439. II. Accident Insurance. [See, also, post, IV, (1).] 103. Under a policy, insuring in $2,000, against loss of life from accidental injuries, causing death within 90 days, and $10 a week, not exceeding twenty-six weeks, against an ac- cident, "by which the insured shall sustain any personal injury which shall not be fatal," the weekly sum is due for an injury by an accident, much does not cause death within 90 days, although it is finally fatal. Perry®. Provident Ins. Co., 103 242. 104. Under a policy against accident, pro- ^S that no claim shall be made under it, wnere the death, or injury, has happened in con- sequence of exposure to any obvious or unneces- sary clanger, and containing a provision that ine insured is required to use due diligence for personal safety and protection, no recovery can be had for death, caused by his being struck by a railroad train, while walking on the track in night, in order to get upon a train approaching on a parallel track. Turtles. Travellers' Ins. Co., 134 175, 105. In such a case it is immaterial, whether the bell or whistle was sounded. Turtles. Travellers' Ins. Co., 134 175. 106. The rule would have been different if the death had happend from some injury, which his walking on the track had no tendency to produce. Turtles. Travellers' Ins. Co., 134 175. III. Fire Insurance. (1.) Policys statutory form; when affected by conditions or warranties. [See, also, ante, I, (1); I, (3).] 107. Under St. 1864, Ch. 196; P. S. Ch. 119, § 138, representations contained in the applica- tion for insurance cannot be relied upon by the insurer as waranties, unless they are inserted into the body of the policy. Wheeler s.Watertown Ins. Co., 131 1. 108. The effect of the act of 1864, and its predecessor, St. 1861, Ch. 152, is to assimulate fire policies to marine policies, in which all the warranties are upon the face of the policy; and the representations; upon which it was issued, are collateral to and not parts of the contract. Eastern Railroad s. Relief Ins. Co. 98 420. 109. And a statement that this policy "is made and accepted," subject to the conditions, etc. , annexed, ' ' which are declared to be a part of this policy," does not import into it any condition, not set forth in the face of the policy. Eastern Railroad s. Relief Ins. Co. 98 420. See, also, Barre Boot Co v. Milford Ins. Co., (7 A.) 89 42, Kim- ball s. ^Etna Ins. Co., (9 A.) 91 540; Luce v. Dorchester Ins. Co., 105 297; Mullaneys. National Ins Co., 118 393; Taylors. ^Etna Ins. Co., 120 254. 110. Under the statute of 1864, it was held that it was sufficient, to state the substance of the condition in the body of the policy and that matters of detail, such as the mode of giving notice and making proofs of loss, might be contained in a schedule annexed to the policy, if they were distinctly and specifically referred to in the body thereof. But now see, St. 1881, Ch. 196, § 1; P. S-, Ch. 119, § 138. Eastern Railroad s. Relief Ins. Co., 98 420; Mullaney v. National Ins. Co., 118 393. 111. The statute does not apply to the obli- gation of the insured as a member of a mutual are insurance company. Comm. s. Mass. Ins. Co. 112 116. 112. Where false statements of existing facts, material to the risk, are made in an application, the statute does not prevent the policy from 198 INSURANCE, in, (1), (2). being voidable on that account, although they arc; not incorporated therein. Taylor v. Mtna, Ins. Co., 120 254 See, also, Goddard v. Monitor Ins. Co., 108 56. 113. But where the policy, by its terms, declares that the application is made a part of the policy, and a warranty on the part of the insured, the parties have thereby agreed to treat it, not as a representation preceding the contract, but as part of the contract; and if not incorporated into the policy, it will be disre- garded under the statute. Taylor v. Mtu& Ins. Co., 120 254. 114. For rulings under the statute of 1861, which are probably abrogated by the statute of 1864, see Barre Boot Co. v. Milford Ins. Co., (7 A.) 89 42; Campbell v. Charter Oak Ins. Co., (7 A.) 89 45, note. 115. Before the statute, applications, by-laws, or conditions of insurance, referred to in the policy as part thereof, were deemed to be em- bodied in the contract, as if recited and set forth at large therein. Houghton v. Manufacturers' Ins. Co., (8 Met.) 49 114; Daniels v. Hudson B. Ins. Co., (12 C.) 66 416; Kibbe v. Hamilton Ins. Co., (11 G.) 77 163. 116 The provision, in the statutory form of a policy, that in case of difference of opinion as to the amount of a loss, the question shall be referred to arbitrators, does not constitute a condition precedent to the right of. the assured to recover upon the policy. Beed e. Washington Ins. Co., 138 572. 117 Nor does it prevent the court, in an action upon the policy, from referring the action to an auditor. Clement v. British Am. Ass. Co., 141 298. (2.) Representation < warranty; con- cealment ; fraud ; effect thereof. [See, also, ante, I (3).] 118. A misrepresentation of a matter of fact, material to the risk, avoids the policy at the election of the insurer, but not unless it is ma- ' Elliott «.' Hamilton Ins. Co., (13 G.) 79 139; Towne v. Fitchburg Ins. Co., (7 A.) 89 51; Campbell t>. N. E. Ins. Co., 98 381; "Wood v. Firemen's Ins. Co., 126 316. 119. It matters not whether the misrepresent- ation was, or was not, made with intent to de- ' Wilbur v. Bowditch Ins. Co., (10 C.) 64 446. 120. A mere expression of opinion or belief is not such a misrepresentation. Wood v. Firemen's Ins. Co., 126 316; Bridgewater Iron Co. «. Enterprise Ins. Co., 134 433. 121. Misrepresentation is the statement by the assured of something, as a fact, which he knows to be untrue, or which he states posi- tively as true, not knowing it to be true, and which has a tendency to mislead, and is mate- rial to the risk. Daniels v. Hudson R. Ins. Co., (12 C.) 66 416; Bridgewater Iron Co. v. Enter- prise Ins Co., 134 433. 122. Concealment is the designed and inten- tional withholding of any fact, material to the risk, which the insured ought, in good faith, to have communicated. Daniels v. Hudson R. Ins. Co., (12 C.) 66 416. 123. A policy is not avoided by the fact that the property insured belonged to a limited part- nership, of which the person insured was the sole general partner, where that fact was not dis- closed or known to the insurer. Clement i>. British Am. Ass. Co., 141 298. 124. If the insurer issues a policy without in- quiry as to a specific matter, he cannot avoid the policy on the ground of misrepresentation or concealment, unless he shows that it was intentional. Washington Mills M. Co. «. Weymouth Ins. Co., • 135 503. See, also, Curry v. Comm. Ins. Co., (10 P.) 27 535; Comm. v. Hide & Leather Ins. Co., 112 136; Fowle«. Springfield Ins. Co., 122 191; Walsh v. Philadelphia F. Ass'n, 127 383. 125. Where a blank left in the application for the answer to a question is unfilled, proof that the assured designedly made false oral repre- sentations upon that subject, is inadmissible. Bardwellu Conway Ins. Co., 122 90. 126. And the issuing of a policy is a waiver of a failure to answer an interrogatory or of any objection to the sufficiency of an answer, or of the omission to make any written applica- tion, although such an application is recited therein. Hall v. People's Ins. Co., (6 G.J 72 185; Liberty Hall Ass'n i>. Housatonic Ins. Co., (7G) 73 261; Nichols v Fayette Ins. Co., (1 A.) 83 63; Comm. v. Hide and Leather Ins. Co., 112 136; Bard- well «. Conway Ins Co., 122 90. 127. Where the insurer has made a fact essen tial by a precise interrogatory, a substantial misstatement or concealment with respect thereto, in the absence of anything qualifying or limiting the obligation to answer correctly, avoids the policy, without a special stipulation to that effect. Towne t>. Fitchburg Ins. Co., (7 A.) 89 51 See, also, Davenport v. N. E. Ins. Co , (6 C.) 60 340; Clark «. N. E. Ins. Co., (6 C.) 60 342; Hayward v. N. E. Ins. Co., (10 C.) 64 444; Wilbur v. Bowditch Ins. Co., (10 C.) 64 446, Jenkins v. Quincy Ins. Co., (7 G.) 73 370; Draper ». Charter Oak Ins. Co., (2 A.) 84 569; Hardy ». Union Ins. Co., (4 A.) 86 217. 128. In other cases, it is for the jury to deter- mine, whether a misrepresentation or conceal- ment was material to the risk, if any question arises upon the evidence; otherwise it is for the court. Fletcher v. Comm. Ins. Co., (18 P.) 35 INSUEANCE, in, (2). 799 419; Lewis v. Eagle Ins. Co., (10 G.) 76 508; Haley v. Dorchester Ins. Co., (12 G.) 78 545; Campbell v. New England Ins. Co 98 381; Wood «. Firemen's Ins. Co.',' 126 316. 129. A mistake of fact or an honest misstate- ment in an affidavit, is not fraud or false swearing within those words in a policy. Little v. Phcenix Ins. Co , 123 380. 130. Where the policy provides that the per- son procuring the insurance shall be deemed the agent of the insured, the insured is bound bv the representations of an insurance broker, notwithstanding St. 1861, Ch. 170. See P. S., Ch. 119, § 183. Wood v. Firemen's Ins. Co., 126 316. 131. For other cases, turning upon the ques- tion, whether the assured was responsible for an alleged misrepresentation, he not having personally filled up the application, see Liberty Hall Ass'n v. Housatonic Ins. Co., (7 G.) 73 261; Denny v. Conway Ins. Co., (13 G.) 79 492. 132. The answers of the insured, to questions in the application, must be construed with ref- erence to the requirements of the insurer, as specified in the notice accompanying the ques- tions; and a mere literal conformity and com- pliance do not suffice. Houghton v. Manufacturers' Ins. Co., (8 Met.) 49 114. # 133. A stipulation that ashes are kept in brick is complied with, if they are kept in some mode equally safe. Underhill v. Agawam Ins. Co., (6 C.) 60 440. 134. A representation that a counting room is warmed by a stove, and that the stove and furniture are kept secure, does not bind the assured to keep \he stove and funnel secure, when not in use. Loud v. Citizens' Ins. Co., (2 G.) 68 221. 135. A description in an application of a building, as used 'for the manufacture of lead pipe," or 'of lead pipe only, ' includes the manufacture of wooden reels en which to coil the lead pipe, if essential to the reasonable and proper carrying on of the business. Collins v, Charlestown Ins. Co., (10 G.) 76 155. 136. A statement in an application that two buildings are "with fiftyfeet," means that they are within fifty feet, and is sufficient, although one was within two feet. Allen v. Charlestown Ins. Co., (5 G.) 71 384. 137 A correct statement of the distance of the two nearest buildings, in answer to an inquiry as to the relative situation of other Buildings, does not vitiate the policy, if hon- estly made, although there was another build- ">g a few feet further off. Hall ». People's Ins. Co., (6 G.) 72 i-OO, v j. 38 ; A . n °g pen and a hen house, three and a Ml to S1 x feet high, are not "buildings," Whm a similar inquiry. White v. Springfield Ass. Co., (8 G.) 74 566. 139. An omission to disclose incendiary attempts to Are the building does not avoid the policy. Clark v. Hamilton Ins. Co., (9 G.) 75 148. 140. An express oral promise that a dwelling house shall be occupied, is not avoided by a failure to fulfil the promise, unless fraud is shown. Kimball v. ^Etna Ins. Co , (9 A.) 91 540. 141. Where the representations are made warranties, if a question, as to how the build- ings are occupied, is answered "see plan," and the plan does not show all the tenants, the policy is avoided. Abbott v. Shawmut Ins. Co., (3 A.) 85 213. 142. So where a plan, professing to state the relative position of other buildings, omits one. Hardy v. Union Ins. Co., (4 A.) 86 217. 143. An open policy is not avoided by a statement, that the goods insured were worth from $2,000 to $3,000, where in fact the appli- cant had less than $2,000, if made in good faith that the stock on hand, with the goods to be added and kept during the policy, would range irom $2,000 to $3,000. Lee v. Howard Ins. Co., (11 C.) 65 324. 144. A representation, not a warranty, that water tanks should be kept full, does not avoid the policy, through neglect by servants to obey orders to keep them full. Daniels v. Hudson R. Ins. Co., (12 C.) 66 416. 145. A warranty that water tanks, in a build- ing in process of construcrion, should be kept full, is complied ,with, if their completion is then reasonably advanced, and is continued with reasonable dispatch until the fire. Gloucester Man. Co. ». Howard Ins. Co., (5G.) 71 497. 146. For various rulings, with respect to rep- resentations touching the mode of doing busi- ness in a factory, see Houghton v. Manufacturers' Ins. Co., (8 Met.) 49 114. 147. Breach of a condition against running a factory at night avoids a policy; and the insured cannot show that running at night is essential to a successful prosecution of his business, and that other similar factories do so. Reardon v. Faneuil Hall Ins. Co., 135 121. 148. A clause requiring a watchman to be kept, means only that he shall be kept at such times as men of ordinary care and skill, iu like business, keep a watchman on their premises. Ciocker v. People's Ins. Co., (8 C ) 62 79. 149. "A good watch' mrans a suitable and proper watch, and it is for the jury to decide whether the watch kept was such, and whether the risk was affected by the watch kept, as compared with that stipulated for. Parker v. Bridgeport Ins. Co., (10 G ) 76 302. 800 INSURANCE, m, (2). 150. When the policy stipulates that the in- surers shall he discharged, if ashes are kept in wood, keeping ashes for a short time before the fire, in a ban-el in an adjoining shed, discharges the insurers, although it was done by a boy em- ployed to take care of the building, without orders. Worcester v. Worcester Ins. Co., (9 G.) 75 27. 151. An omission in an application, with in- terrogatories as to buildings within 150 feet, to disclose a structure of rough timbers, 45 feet long, by 15 to 18 feet high, within 50 feet, used by the carpenters while erecting the building insured, leaves a question for the jury to decide, whether it was a carpenter's shop, within the extra hazardous class, and whether its dis- closure would have increased the premium. Richmondville U. Seminary v. Hamilton Ins. Co., (14 a.) 80 459. 152. A statement that a building is fastened up, and occupied only occasionally for a par- ticular purpose, if made a warranty, is a war- ranty only of the then existing situation; and a change which does not affect the risk will not avoid the policy. Blood ii. Howard Ins. Co., (12 C.) 66 472. 153. A building is unoccupied, within the meaning of the policy stipulating against such a contingency, unless it is under the care and supervision of some person in the actual occu- pation and use of it. Litch v. North British, etc., Ins. Co., 136 491. See, also, Keith ®. Quincy Mut. Ins. Co. , (10 A.) 92 228; Ashworth v. Builders' Ins. Co., 112 422; Corri- gan v. Connecticut Ins. Co., 122 298; Poor v. Humboldt Ins. Co., 125 274. 154. But the owner may recover, where his tenant vacates the building, and he uses all reasonable efforts to procure another tenant. Gamwell v. Merchants, etc., Ins. Co., (12 C.) 66 167. 155. As to the sufficiency of notice to the agent of the insurer, where the policy stipulates for notice, in case the building is unoccupied. Harrison v. City Ins. Co., (9 A.) 91 231. 156. A "tenement frame block ""is not "un- occupied" within the policy, where two of the tenements are in actual use and occupation as residences. Harringtons. Fitchburg Ins. Co., 124 126. 157. Where there is no express stipulation, the question, whether leaving a building unoc- cupied increases the risk, is for the jury, upon which proof of an usage to charge extra pre- miums is inadmissible, but the testimony of ex- perts is admissible. Luce«. Dorchester Ins. Co., 105 297. [Seepost, III, (8).] 158. Where a building is insured upon the representation that it is occupied as a machine shop, when, in fact, it is occupied as an organ factory, upon which the risk is greater, the policy is void. Goddard v. Monitor Ins. Co., 108 56. 159. But where a policy is issued in the sum- mer, a statement in it that the building was used for the storage of ice, is not a warranty that ice is then stored therein, but as descriptive of the business ordinarily done therein. Dolliver v. St. Joseph Ins. Co., 131 39. 160. A policy, with a clause providing that it shall be void, if the interest of the insured is any other than the entire, absolute, and uncon- ditional ownership, is void, where the only title of the assured is under a quit claim deed from a second mortgagee. Southwick v. Atlantic Ins. Co., 133 457. 161. So where, in answer to questions on the subject in an application, the applicant repre- sents himself to be the owner, when he is a mortgagee not in possession. Jenkins v. Quincy Ins. Co., (7 G.) 73 370. 162. But the answer is sufficient, if the in- sured has an equitable title, or a freehold title, giving him the absolute right of disposition and occupation, although not a legal title in fee simple. Curry v. Comm. Ins. Co., (10 P.) 27 535; Allen v. Charlestown Ins. Co., (5 G.) 71 384. 163. It is not sufficient, if the property is partly owned by another. Wilbur v. Bowditch Ins. Co., (10 C.) 64 446. 164. It is sufficient, if given by two partners, where the title to the land is in one, and the other has been charged in the books with half the cost. Collins v. Charlestown Ins. Co., (10 G.) 76 155. 165. An omission to disclose that the appli- cant has agreed to convey the property, and that the greater part of the consideration has been paid, will not avoid a policy, where no que'stion was asked in the application, particu- larly relating to the title. Davis v. Quincy Ins. Co., (10 A.) 92 113. 166. One who has conveyed land, reserving the building thereupon, with a right to remove the building within a specified time, otherwise the same to become the property of the grantee, is the owner of the building for the purpose of a policy thereupon, describing him as the owner, and issued before the time fixed for the removal, where it was burned before that time. Washington M E Man. Co. v. Wey- mouth Ins. Co., 135 503. 167. So where a lessee of land for a term of years erected a building upon the land, which was to become the property of the lessor, at the expiration of the term. Powle v. Springfield Ins. Co., 122 191. 168. Fo where a former owner's equity of redemption had been sold under execution, and there were two mortgages upon the property, all of which incumbrances the insured had a right to redeem. Buffum v. Bowditch Ins. Co., (10 C.) 64 540. 169. Where no inquiry was made by the insurer as to the title, the fact that the insured INSURANCE, III, (2), (3). 801 did not disclose that the building, insured as "his store," stood upon another's land, under an oral agreement, determinable upon six months' notice, does not avoid the policy on the mound of concealment. Fletchers. Comm. Ins. Co., (18 P.) 35 419. 170. So where the insured was a mortgagor, although his equity was subsequently seized and sold under an execution against him. Strong v. Manufacturers' Ins. Co., (10 P.) 27 40. 171. So where he was a mortgagor, and had leased the property for a term of years, that is not a breach of a condition that he is sole owner, etc., or that the title is truly stated. Dolliver ». St. Joseph Ins. Co., 128 315. 172. A statement that the insured is a mort- gagee in possession, does not avoid a policy, where he has taken an assignment of a first mortgage in trust for himself and others, and has completed a negotiation for the purchase of the interest of the mortgagor in a second mortgage, under which the title has been per- fected by foreclosure. Nichols ». Fayette Ins. Co., (1 A.) 83 63. 173. For other rulings, as to the sufficiency of statements by mortgagees, see Wyman v. People's Equity Ins. Co., (1 A.) 83 801; Jacobs v. Eagle Ins. Co., (7 A.) 89 132; Davis «. Quincylns. Co., (10 A.) 92 113; Walsh v. Philadelphia F Ass'n, 127 383. 174. One who has only a bond for a convey- ance, cannot recover upon a policy, describing the building as his, where it also provides that a failure truly to state the title avoids the policy. Smith v. Bowditch Ins. Co. , (6 C.) 60 448; Lowell v. Middlesex Ins. Co., (8 C.) 62 127; Falis i>. Conway Ins. Co., (7 A.) 89 46. 175. An appplicant for insurance upon per- sonal property, who has made, but not delivered, a bill of sale thereof, taking therefor a note secured by mortgage thereupon, may truly, represent and warrant himself to be the owner. Vogel v. People's Ins. Co., (9 6.) 75 23. 176. Where the applicant for insurance has falsely represented the property as unincum- bered, or has untruly stated the incumbrances thereon, and the truth of his statement is made a condition or a warranty, by the terms of the policy, the policy is void. Davenport «. N. E. Ins. Co., (6 C.) 60 340; CL*rk v. N. E. Ins. Co., (6 C ) 60 342; Lowell ». Middlesex Ins. Co., (8 C.) 62 127; Friesmuth v. Agawam Ins. Co., (10 C.) 64 587; Hayward v. N. E. Ins. Co., (10 C.) 64 444; Brown v. People's Ins. Co., (11 C.) 65 280; Draper v. Charter Oak Ins. Co., (2 A.) 84 569; Abbott «. Shawmut Ins. Co., (3 A.) 85 213; Towne v. Fitchburg Ins. Co , (7 A.) 89 51; Falis v. Conway Ins. Co., (7 A.) 89 46; Jacobs «. Eagle Ins. Co., (7 A.) 89 132; Murphy v. People's Eq. Ins. Co., (7 A.) 89 239. Vol. I— 101 177. It is immaterial that the incumbrance was a mortgage, made before the mortgagor acquired title, and not recorded until after the insurance. Packard v. Agawam Ins. Co., (2 G.) 68 334. 178. The rule applies to a sale for nonpay- ment of taxes, although the insured has a right to redeem. Wilbur v. Bowditch Ins. Co., (10 C.) 64 446. j.79. It is immaterial that a jury finds that the misrepresentation was immaterial to the risk, or that the insurer's agent, who filled up the appli- cation, knew of the incumbrance. Bowditch Ins. Co. v. Winslow, (3 G.) 69 415. 180. If, however, the applicant has answered a question in the application, by saying that in- cumbrances exist, without stating the amount thereof, the insurer cannot object to the insuf- ficiency of the statement. Nichols v. Fayette Ins. Co., (1 A.) 83 63. 181. Where a small assessment had been laid upon a deposit note, given for a former policy, which was a lien upon the land, the failure to disclose it does not avoid the policy, where the former policy was afterwards declared void, and the assessment remitted. Jackson ». Farmers' Ins. Co., (5 G.) 71 52. (3.) Property and Interest covered. 182. Where, after several policies on goods in a certain building were taken out, the insured erected an addition to the building, and removed thither part of the goods, before doing which he obtained a consent from all the insurers, except one, that the policies should extend to goods in the addition, and the latter gave per- mission to erect the addition, "all policies con- current," the agent then knowing of the consent of the other insurers, it was held that all the policies covered goods in the addition. Butterworth d. Western Ass. Co., 132 489. 183. A policy upon goods in a building, de- scribed as "D &Co.'s car factory," includes goods in a building, erected as a wing against tne car factory building, and communicating with the latter by an opening usually closed with an iron door, both buildings being used as part of the factory. Blake v. Exchange Ins. Co., (12 G.) 78 265. 184. But a policy on goods in a building, described as No. 117 Franklin street, does not include goods in an independent building front- ing on another street, although doors have been cut through the walls, and the business of the insured was carried on in rooms, situa(ed partly in one building, and partly in the others Sampson?;. Security Ins. Co., 133 49. 185. For a similar ruling in another case, where the language of the policy was obscure, and different buildings were used for one busi- ' Hews®. Atlas Ins. Co., 126 389. 802 INSURANCE, III, (3) 186. A policy on goods in a particular build- ing, covers them in whatever part of the build- ing they may be at the time of the Are, although a plan referred to shows them in a particular part. Fair v. Manhattan ins. Co., 112 320. 187. So where they are described as being in a particular story of a particular building, and the insured has since hired another room in the same story; and t the removal of part of the goods to that room, does not violate a clause in the policy against removal. West v. Old Colony Ins. Co., (9 A.) 91 316. 188. Where a policy is evidently intended to apply to one of two buildings, and the descrip- tion is false in different particulars, when ap- plied to each building, the policy will be deemed to apply to that budding, which, after rejecting as surplusage that part of the description which is false as applied to it, is most clearly and suffi- ciently identified by the residue, if that will sufficiently identify it; otherwise the policy is void for uncertainty. Heath «. Franklin Ins. Co., (1 C.) 55 257 189. Where, after giving the characteristics of the building insured, the description con- tinues, " connected by doors with the adjoining building, situate at the corner of C street and W avenue," the clause commencing "situate" applies to the building insured. Heath v. Franklin Ins. Co., (1 C.) 55 257. 190. Under a policy upon all or either of certain specified buildings, the insurer is liable for the full amount of a loss, not exceeding the sum insured, occasioned by burning one of the buildings. Comm. «. Hide & L. Ins. Co., 112 136. 191. Where a policy describes the property insured as contained in a " three story granite building," it covers property in a building with a granite front only, three stories high in front and rear, and one story high in the middle, although all the property burned was in the middle part. Medina «. Builders' Ins. Co., 120 225. 192. A policy on a " wood house," described in the application as "occupied for the usual purposes," covers the whole of a building, built at the same time for a wood house and carriage house, with a single frame and roof, and de- signed for one building. White v. Springfield Ass. Co., (8 G.) 74 566. 193. A policy on freight cars, "owned or used " by a railroad company, covers cars be- longing to another company, but in the posses- sion of the company insured, and used by it as & CSLYT1QY Comm. ». Hide & L. Ins. Co., 112 136. 194. A policy to a railroad company upon " any property upon which they may be liable in freight buildings or yards," covers merchan- dise, for which the insured is liable as a common carrier, although another carrier is bound by contract to indemnify the insured against any loss thereupon; but not articles of a kind specified in the policy as not insurable, except by special agreement. Comm. v. Hide & L. Ins. Co., 112 136. 195. The contingent interest of a railroad company in property of others, endangered by its engines, will not be presumed to be covered by a policy, in which that interest is not de- scribed in appropriate terms, where the com- pany has property of its own, to which the terms of the policy are applicable. Monadnock Railroad v. Manufacturers' Ins. Co., 113 77. 196. A policy to a railroad company upon cars "on the line of their road, and in actual use," covers cars of the insured, left in the ordi- nary course of business upon . a railroad track, connected with that of the insured, although such track is not owned or controlled by it. Fitchburg B. R. v. Charlestown Ins. Co., (7G.) 73 64. 197. A policy upon goods "held in trust" covers goods consigned to the insured as a commission merchant, there being no other goods to which the term could apply. • Parks v. General Interest Ass. Co., (5 P.) 22 34. 198. And semble, that if he has two or more kinds of such goods, oral testimony is admis- sible to apply the policy. Parks ». General Interest Ass. Co., (5 P.) 22 34. 199. A policy to a consignee upon goods, " his own, or held by him in trust or on com- mission," enures to the benefit of the consignor pro tanto. Johnson v. Campbell, 120 449. 200. But a policy upon a stock of clothing, manufactured, and in process of manufacture, which provides that the insurer shall not be lia- ble for property owned by another person, un- less such person's interest is stated in the policy, will not cover cloth, left with the insured, to be manufactured into clothing at his own risk, nor even the value of his work thereupon. Getchell v. iEtna Ins. Co., (14 A.) 96 325 201. A policy upon a " stock of hair, wrought, raw, and in process, as retail hair store," does not cover fancy goods not made of hair, al- though such as are usually kept in a retail hair ' Medina v. Builders' Ins. Co., 120 225. 202. A policy upon "an engine and ma- chinery" for the manufacture of Din ware, etc., covers iron or steel dies, used to give form to utensils manufactured by the insured, although it is found as a fact, that there is no custom to include dies in the term " machinery." Seavey v. Central Ins. Co., Ill 540. 203. A policy upon "a stock of watches, watch trimmings, etc.," includes, by force of the "etc.," the stock usually kept in watch establishments, such as silver and plated ware, clocks, and jewellery. Crosby v. Franklin Ins. Co., (5 G.) 71 504. 204. A policy upon " stock in trade, being mostly chamber furniture," covers paints ana INSURANCE, m, (3), (4). 803 varnish used to finish furniture, if usually kept by furniture dealers. Haley v. Dorchester Ins. Co., (12 G.) 78 542. 205. A policy upon "tools'" of a manufac- turer of machinery, covers patterns used in moulding castings, forming a part of the ma- chinery made by the insured; and they are not excluded hy a provision excepting "jewels, plate, watches, ornaments, medals, patterns, printed music," etc. Lovewell v. "Westchester Ins. Co., 124 418. 206. A policy upon "merchandise," covers only articles kept for sale; but a policy upon "property" covers articles kept either for use or for sale. Burgess v. Alliance Ins. Co., (10 A.) 92 221. 207. A policy upon a cutler's and jeweller's st'.ck in trade, does not cover blankets, pro- cured by the insured and spread upon his building, to prevent the progress of the flames, with the insurer's approbation, whereby the building and contents were saved; but the loss of the blankets is the subject of general aver- age, to which the insurer and insured must con- tribute, in proportion to the amount which they respectively had at risk, in the building and its contents. Welles f>. Boston Ins. Co., (6 P.) 23 182. 208. Oral testimony is admissible to prove a custom, in order to apply the term " store fix- tures," to all articles in a shop or warehouse, necessary or convenient for use in the business. Whitmarsh v. Conway Ins. Co., (16 G.) 82 359. 209. But not to show a mistake in the policy, and an intent to insure other property than that described. Holmess. Charlestown Ins. Co., (10 Met.) 51 211. 210. A description of the insured as " mort- gagee," suffices to cover his insurable interest m mortgaged property, although the policy recites that if the interest of the insured is otherwise than that of absolute ownership, it must be so expressed, and his interest must be truly stated. Williams v. Roger Williams Ins. Co., 107 377. IFor other rulings as to the effect of usage, in de- termining what property is covered by the language or the policy, and the binding effect of a usage of trade upon an insurer, see Usage.] (4.) Risks assumed. 211. To entitle the insured to recover upon a fire policy upon goods, it is not necessary that the goods themselves should be consumed or injured by the fire. The insurer is liable for all losses which result from the fire, and can be fairly attributed to it. New York, etc., Express Co. ■». Traders', etc., Ins. Co., 132 377. 212. If the property is injured by water used w put out the fire, it is within the protection of *Jw policy. New York, etc., Express Co. ■». Traders', etc., Ins. Co., 132 377. See, also. Lewis 11. Springfield Ins. Co., (10 G.) 76 159. 213. Where a steamboat, in which were goods insured against " immediate loss by fire," came into collision with another steamboat, and thereby caught fire, but sank before the fire reached the goods, it was held that if the damage could have been avoided, but for the intervention of the fire, the fire was the imme- diate cause of the loss, and the insurer was liable. New York, etc., Express Co. ■». Traders', etc.,- Ins. Co., 132 b77. 214. An insurance against loss or damage by fire covers a loss by explosion of gunpowder. Scripture v. Lowell Ins. Co., (10 C.) 64 356. 215. Semble, that a clause in a policy that the .nsurer shall not be liable in case of explosion, includes a case where fire is brought by an ex- plosion into contact with the insured property. Dows a. Paneuil Hall Ins. Co., 127 346. 216. But such a clause, with the addition, "unless fire ensues, and then for the loss or damage by fire only," renders the insurer liable for loss by fire ensuing upon an ei plosion, whether it is kindled by the explosion itself, or by any other cause. Dows d. Paneuil Hall Ins. Co., 127 346. 217. Where the clause excepts a, loss by explosion of gunpowder or a steam boiler, the insurer is liable for the loss occasioned by the explosion of inflammable gas. Dows v. Paneuil Hall Ins. Co., 127 346. 218. Where the proviso is that the insurer shall not be liable for loss by the explosion of any explosive substance, unless fire arises, and then, etc., followed by a provision that in case the building "shall fall, except as the result of a fire," all insurance upon it shall immediately cease, the latter clause does not exclude liability for the destruction of the building by an explo- sion within the building, and a fire immediately ensuing upon and connected with the explosion; in which case the insurer is liable for the damage by the fire only. Dows v: Paneuil Hall Ins. Co., 127 346. 219. Under a policy, similar to that in the last cited case, where, from a cause other than fire or an explosion, substantially all the floors and the roof of a building fall, leaving stand- ing only the outer walls, and a staircase and elevator, the building is deemed to have fallen, and the insurer is not liable for a fire, breaking out in the debris. Huck v. Globe Ins. Co., 127 306. 220. In such a case, where several buildings, or the goods therein, are insured in one policy, the fall of one building terminates the insur- ance, at least upon that building and its contents. Huck v. Globe Ins. Co., 127 306. 221. Where a policy upon a theatre provides that it shall not "cover any loss or damage by 'fire, which may originate in the theatre proper," 804 INSURANCE, III, (5), (6). if a brick wall of the building becomes so heated from a fire without, as to set fire to the woodwork in the theatre, the insurer is liable. Sohier v. Norwich Ins. Co., (11 A.) 93 336. <5.) Alienation of the property insured. 222. A conveyance of insured real property, by a husband to his wife, through the medium or a third person, avoids a policy of insurance, containing a provision that it shall be void, in case the property is "sold or conveyed in whole or in part," although the husband retains an insurable interest as tenant by the curtesy. Oakes v. Manufacturers' Ins. Co., 131 164. 223. But if the insured informs the insurer, that there had been a conveyance of. the prop- erty, and that there was an outstanding mort- gage_ on the property made before the policy was issued; and thereupon the insurer indorses upon the policy a consent to pay the insurance, in case of loss, to the mortgagee, that is a waiver of the forfeiture, and the insurance con- tinues in force, without a new consideration. Oakes v. Manufacturers' Ins. Co., 135 248. Barretts Union Ins. Co., (7C.) 61 175, distinguished. 224. A sale by one partner to another, and a mortgage back of the seller's share, is not a breach of a simple condition against a sale, con- tained in a policy to the firm. Qu., whether it would be a breach of a condition against any change of title. Powers v. Guardian Ins. Co., 136 108. 225. "Whether such a sale would increase the risk, within a condition against such an in- crease, is for the jury. Powers ®. Guardian Ins. Co., 136 108. 226. But a policy containing a simple condi- tion against a sale, with a stipulation that any loss is payable to a mortgagee, is avoided by the conveyance of the assured, or of his heirs after his death, to the mortgagee, by an absolute deed; even if the grantee orally agreed with the grantor to sell the land; and account for the proceeds, less the amount of the mortgage. Dailey v. Westchester Ins. Co., 131 173. 227. Or if the grantor took back a bond for a deed. Foote v. Hartford Ins. Co., 119 259. 228. A subsequent mortgage is not a breach of a condition in a policy against alienation, sale, or change of title, possession, or interest. Judge v. Connecticut Ins. Co., 132 521. See, however, Jackson v. Mass. Ins. Co., (23 P.) 40 418; Loring v. Manu- facturers' Ins. Co., (8 G.) 74 28; Orrell v. Hampden Ins Co., (13 G.) 79 431; Edmands v. Mut. Safety Ins. Co., (1 A.) 83 311; Edes v. Hamilton Ins. Co., (3 A.) 85 362; Smith v. Union Ins. Co., 120 90; Dolliver v. St. Joseph Ins. Co., 128 315; Oakes b. Manufacturers' Ins. Co., 131 164. 229. In that respect, there is no difference be- tween real and personal property, if possession is not taken of goods mortgaged. Judge v. Connecticut Ins. Co., 132 521. Bee, also, Rice v. Tower, (1 G.) 67 426. 230. A sale under an execution of the equity in property mortgaged, is not such an aliena- tion as avoids the policy, if a loss occurs before the expiration of the time to redeem. Strong v. Manufacturers' Ins. Co., (10 P ) 27 40; Clark v. N. E. Ins. Co., (6 C.) 60 342. 231. So as to personal property seized upon execution. Rice v. Tower, (1 G.) 67 426. 232. Where, however, the policy on goods contains a condition against entry of a fore- closure of a mortgage, the giving and recording of notice of intention to foreclose is a breach of the condition. Mclntire v. Norwich Ins. Co., 102 230. 233. An assignment in insolvency, or in trust for the benefit of creditors, is an alien- ation, within a policy containing a condition against alienation. Dadmun M. Co. v. Worcester Ins. Co., (11 Met.) 52 429; Young o. Eagle Ins. Co., (14 G.) 80 150. 234. But a mere agreement between the in- sured and another, to represent to the former's creditors that the property has been sold to the latter, is not a breach of a condition against "sale, transfer, or change of title." Orrell v. Hampden Ins. Co., (13 G.) 79 431. 235. The alienation of one of several build- ings, insured in the same policy, avoids the policy only as to that building. Clark v. N. E. Ins. Co., (6 C.) 60 342. 236. The foreclosure of a mortgage is an alienation. Macomber v. Cambridge Ins. Co., (8 C.) 62 133. (6.) Assignment of the policy. [For cases where a loss is made payable by the terms of the policy to a mortgagee, see post, III, 237. An agent of an insurance company, to receive premiums and applications for insur- ance, and transmit policies, has no authority to waive notice of assignment of a policy, con- taining: a condition against such an assignment. ^Tate «. Citizens' Ins. Co., (13 G.) 79 79. 238. A condition against an assignment of a policy relates only to an assignment before a loss. Dadmun M. Co. B.Worcester Ins. Co., (11 Met.) 52 429; Tolman «. Manu- facturers' Ins. Co., (1 C.) 55 73. 239. An assignment of a policy, either before or after a loss, or an order to pay a loss to another, if assented to by the insurer, enables INSURANCE, HI, (6), (7). 805 the assignee, in case of loss, to sue thereupon in his own name. Barrett v. Union Ins. Co., (7 C.) 61 175; Phillips v. Merrimack Ins. Co., (10 C.) 64 350. 240. But not unless it is assented to. Dadmun M. Co. ■». Worcester Ins. Co., (11 Met.) 52 129. 241. Where an assent in writing is required, an oral assent by the president of the insurance company will not suffice. Hale v. Mechanics' Ins. Co., (6 G.) 72 169. 242. An insurance company is not bound by its agent's assent to an assignment absolute in form, but made only as collateral security, where the agent had no authority to consent to an assignment as collateral security, and had no knowledge that such Was its character. Lynde ». Newark Ins. Co., 139 57. 243. A clause avoiding a policy, in case of transfer, is to be construed strictly; and a gen- eral assignment by the insured of his effects, including policies of insurance, will not vitiate a policy in the hands of one who has a lien upon it Lazarus v. Comm. Ins. Co., (5 P.) 22 76. 244. Where a policy contains a clause, per- mitting the insurer, in case of loss or damage, to replace the property, and the insured, after a loss, directs the loss to be paid to another, and the insurer assents thereto, this does not affect the insurer's right to replace the property. Tolman v. Manufacturers' Ins. Co., (1 C.) 55 73. 245. An order, by the insured, directing the payment of a loss to another, is an assign- ment of the money in case of loss, rather than an assignment of the policy; and the per- son named does not acquire thereby the rights of an assignee of a chose in action. Fogg ». Middlesex Ins. Co., (10 C.) 64 337; Hale v. Mechanics' Ins. Co., (6 G.) 72 169 246. The person, named in such an order, has only the right to receive whatever becomes due to the insured under the contract, and, if the policy is avoided by any subsequent act of the insured, the former cannot recover. Fogg v. Middlesex Ins. Co., (10 C.) 64 337; Hale v. Mechanics' Ins. Co., (6 G.) 72 169. 247. To render such an order a perfect assign- ment, the assignee must, where the by-laws of the insurance company so require, prove that he gave a new deposit note, and that the com- pany knew that the property bad been sold to nun where such is the case; and must affirma- tively show that the agent or officer, with whom ™ transaction took place, or who was chargea- oie with knowledge, was duly authorized. Fogg v. Middlesex Ins. Co., (10 C.) 64 248. An assignee of the policy, with the assent oi tne insurance company, where the policy re- quires a written assent to subsequent additional insurance, cannot recover, if the insured, sub- sequently to the assignment, procured addi- tional insurance, with the oral consent of the company's president. Hale v. Mechanics' Ins. Co., (6 G.) 72 169. 249. Aud where a policy contains a condition against alienation, without consent, "by sale, or otherwise," and the insured, after mortgaging the property and assigning the policy, conveys the equity without consent, the policy becomes void. Lawrence e. Holyoke Ins. Co., (11 A.) 93 387. See, also, Franklin Sav. Inst'n v. Central Ins. Co., 119 240. 250. If, when the insurance is effected, the insured has already conveyed his interest, the policy is void in his hands; and an assignment thereof to the purchaser, with the insurer's assent, does not create a new contract between the insurer and the purchaser, although the agent who issued the policy, and assented to the assignment, knew all the facts. McCluskey v. Providence Washington Ins. Co., 126 306. 251. A by-law of a mutual insurance com- pany, requiring the company's consent to a transfer of a policy, when the property shall be alienated by sale or otherwise, does not apply to an assignment of the sum secured by the policy, where the assignee is in possession under a bond for a deed. Phillips v. Merrimack Ins. Co., (10 C.) 64 350. 252. As to the sufficiency of a written assent by an insurance company, where the policy re- quires, in case of a sale of the property, "a certificate of the fact" or "an indorsement on the policy," see Loring «. Manufacturers' Ins. Co., (8 G.) 74 28. 253. A provision in a contract for the carriage of goods that, in case of loss or damage, the carrier shall have the benefit of any insurance upon the goods, is not within the clause of the policy, prohibiting an assignment without the insurer's consent. Jackson Co. v. Boylston Ins. Co., 139 508. (7.) Other insurance. 254. Where a policy is, by its terms, void in case of other insurance, oral testimony that the insurer knew, when the policy was issued, that there was other insurance, is inadmissible. Batchelder v. Queen Ins. Co., 135 449. See, also, Barrett v. Union Ins. Co., (7C.) 61 175. 255. The fact, that at the time of issuing the policy, there was a prior insurance upon the same pr. perty by the same insurer, which was not known to cither party, will not avoid the policy, although it is material, and if it had been known, the contract would not have been made. _ . T Bridgewater Iron Co. «. Enterprise Ins. Co., 134 433. 256 If, at the time of making an oral appli- cation for insurance, the applicant honestly states his belief that a list of existing insurances is correct, and the insurer has the means of verifying the statement, but fails to do so, and the list is incorrect; this is not a misrepresenta- tion which avoids the policy, although it con- 806 INSURANCE, IH, (7). tains an express warranty, that all the facts have heen truly stated in the application, and a con- dition avoiding the policy, if any material fact is not stated. Bridgewater Iron Co. ■». Enterprise Ins. Co., 134 433. 257. Where the mortgagor of a building:, the legal title to which was in his assignee in bank- ruptcy, upon which there was a policy, taken out by the bankrupt in the name of the assignee, loss made payable to a mortgagee, took out a new policy in his own name upon the same property, not mentioning either the assignee or the mortgagee, it was held that this was not a violation of a condition in the first policy against subsequent insurance. Wheelers. Watertown Ins. Co., 131 1. 258. In such a case, the second policy did not vitiate the first, because the condition is not broken, by an insurance obtained by a stranger, upon his own interest, which could not be con- trolled or prevented by the insured or the mortgagee Wheeler v. Watertown Ins Co., 131 1. See, also, City F C. Sav. Bk. v. Penn'a Ins. Co., 122 165. 259. Also, because a subsequent invalid policy is not a breach of the condition, although the, invalidity is of such a nature that it may be waived by the subsequent insurer. Wheeler 1> Watertown Ins. Co., 131 1 See, also, Jackson ». Mass. Ins. Co., (23 P.) 40 418; Clark v. N. E. Ins. Co., (6 C ) 60 342, Kimball v. Howard Ins. Co , (8 G.) 74 33; Hardy v. Union Ins. Co. (4 A.) 86 217; Thomas t>. Builders' Ins Co., 119 121. 200. So an insurance in the name of the in- sured, but without his authority, effected by another person interested, will not vitiate the policy Nichols v. Payette Ins. Co., (1 A.) 83 63 261 A condition that other insurance shall be assented ta by the first insurer, is sufficiently complied with, where the consent notes $5,000 additional insurance, whereas the additional insurance is $4,700 on the building insured in the first policy, and $300 upon a barn appurte- nant thereto Liscom ®. Boston Ins. Co., (9 Met.) 50 205. 262. If the condition requires the assent of the directors, or of the secretary, of a mutual in- surance company, it is not fulfilled by an assent, signed by a director; and the rule is not varied by the fact that the company, after the fire, made an assessment upon the assured, and included his claim in the schedule of losses. Forbes «. Agawam Ins. Co., (9 C.) 63 470. See, also, Hale v. Mechanics' Ins. Co., (6 G.) 72 169. 263. Nor is a condition, requiring a written assent of the insurance company, complied with by the delivery of a notice of the additional insurance to an agent, for entry in his books, and the return of the notice by the agent, after iking a memorandum for such an entry. Worcester Bk. v. Hartford Ins. Co., (11 C.) 65 265. See, also, Pendar v. American Ins. Co., (12 C.) 66 469; Kimball ®. Howard Ins. Co., (8 G.) 74 33. 264. Nor by an assent to an existing addi. tional insurance to the amount of $5 000 in the E. company, and $3,000 in the C company, where there was no additional insurance then, but the assured afterwards procured $8,000 additional insurance in the T andL. companies; and the oral consent of the agent to the change is immaterial. Conway Tool Co. » Hudson R. Ins. Co. (12 C.) 66 144. 265. So where the previous insurance assented to, expires, and the insured procures insurance for a smaller sum in another company. Burt v. People's Ins. Co., (2 G.) 68 397. 266. A clause written in the policy, to the effect that other insurance is permitted without notice, controls a printed clause, requiring notice and assent, and applies to either a pre- vious or a subsequent insurance. Kimball v. Howard Ins. Co., (8 G.) 74 33; Blake i>. Exchange Ins. Co., (12 G.) 78 265. 267. Where the condition requires reasonable notice uf subsequent insurance to the first insurers, the question whether the notice was reasonable, if all the facts are found, is for the court. Kimball v. Howard Ins. Co., (8 G.) 74 33. 268. Seven months is an unreasonable delay. Kimball «. Howard Ins. Co. (8 G.) 74 33. 269. Where the consideration of the policy is entire, and the insurance is for one sum on different articles, the policy is wholly avoided by a subsequent insurance, unassented to. upon part of them. Kimball o. Howard Ins. Co., (8 G.) 74 33. 270. Where any question arises, the burden of proof that the subsequent insurance was on the same property, is upon the insurer; and the fact that the articles described in each policy are of the same kind does not suffice. Clark ». Hamilton Ins. Co., (9 G.) 75 148. 271. The statement that there is additional insurance only relates to the time of issuing the policy; and if the former insurance is an- nulled, by failure to obtain the former insurer's assent to the second policy, the second insurer is liable for the entire loss to the amount insured. Forbush v. Western Mass. Ins. Co., (4G.) 70 337. 272. And the insured may show, that part of the property insured in the second policy was not covered by the first, and may recover accordingly. Haley v, Dorchester Ins. Co., (1 A.). 83 536. 273. So the liability of the insurer, under a policy noting additional insurance, is measured, not by the sum noted, but by the sum actually insured. Richmondville IT. Sem. v. Hamilton Ins. Co., (14 G.) 80 459. [For other rulings as to damages recoverable in case of double insurance, see post. III, (13).] INSURANCE, III, (8). 807 (8.) Increase of risk. 274. Where a policy is conditioned to be void, in case of an increase of risk, not assented to by the insurer, the question whether there was such an increase, if "any doubt arises upon the evidence, is for the jury. Curry « Comm. Ins. Co., (10 P.) 27 535; Gamwell v. Merchants', etc., Ins. Co., (12 C.) 66 167; Eice v. Tower. (1 G.) 67 426; Powers v. Guardian Ins. Co., 136 108 275. As to what increase of risk is "within the control of the assured," where the condition contains such a provision as to increase of risk. Rice «. Tower, (1 G.) 67 426; Sanford v. Mechanics' Ins. Co., (12 C.) 66 541. 276. The person referred to as " the insured" is the person who owns the property, applies for the insurance, pays the premium, and, in the case of a mutual insurance company, signs the deposit note, not another person to whom the loss is payable. Sanford v. Mechanics' Ins. Co., (12 C.) 66 541. 277. Where a landlord uses reasonable care and diligence in the selection of his tenants, and managing the property, a policy to him is not avoided by an increase of risk by a tenant, with- out his consent. White «. Springfield Ass. Co., (8 G.) 74 566. See, also. Stetson v. Mass. Ins. Co., 4 330. 278.^ Especially where the tenant's act is a violation of the express stipulations of his lease. Sanford v. Mechanics' Ins. Co., (12 C.) 66 m. 279. But such an act of the tenant, with the landlord's assent, avoids the latter's policy, although the increase of risk was temporary, and did not cause the fire. Lyman v. State Ins. Co., (14 A.) 96 329. 280. An unlawful act by a stranger, without the consent of the insured, is not a breach of a condition against increase of risk, whether the condition does or does not provide, that it must he within the control of the assured. Loud v. Citizens' Ins. Co., (2 G.) 68 221. ' 281. So, semile, where the act was one of humanity to persons in distress, and was tem- porary. Loud e. Citizens' Ins. Co . (2 G.) 68 221. 282 ; Where a policy containing a provision, that it should be void in case of increase of nsk, by the consent, etc., of the insured, also provided that if the risk should be increased by the erection of buildings, the insurer might terminate the insurance upon notice to the in- sured, and the insured erected a factory on an adjoining lot, so as to increase the risk, it was M d that, under the first clause the policy was avoided, without any notice to the insured. Allen v. Massasoit Ins. Co., 99 160. Bee also, Evans «. Trimountain Ins. Co., (9 A.) 91 329. In^ffi ^ n ora * consent t0 an increase of risk is msutncient, where the policy requires a written consent; and the consent of one officer of an insurance company is insufficient, where the policy requires the consent of another. Evans s. Trimountain Ins. Co., (9 A.) 91 329. [See, also, ante. III, (7).] 284. A policy upon the machinery of a silk factory, conditioned to be void if the premises are used as a cotton mill, woolen mill, etc., is not avoided by using one room for weaving a few pieces of stuff from woolen or linen thread, and cotton spun elsewhere, and kept in the room. Vogel v. People's Ins. Co., (9 G.) 75 23. 285. In an action on a policy upon a factory with the usual condition as to increase of risk, where the pipe of the stove in the lower story was changed, so that, instead of passing directly into the chimney, it was carried up through the floor to the third story, and there entered the chimney; it was held that the defendant could not maintain an exception, to the judge's refusal to instruct the jury, that the policy was avoided, if the risk of fire in the third story was in- creased by the alteration, where he instructed them generally that an increase of risk avoided it. Jones Man. Co. ». Manufacturers' Ins. Co., (8 C.) 62 82. 286. An alteration, which the jury find so material, that it would increase the rate of pre- mium is an increase of risk within the condi- tion, although it did not cause the fire. Merriam i>. Middlesex Ins. Co., (21 P ) 38 162. See, also, Luce v. Dorchester Ins. Co., 105 297. 287. If, before the issuing of the policy, a dummy engine has been used near the insured building, when its use was required, its subse- quent use when required, although it increased the risk does not avoid a policy conditioned against any change or alteration which in- creases the risk. Comm. v. Hide & L. Ins. Co., 112 136. 288. Where a policy, with the usual condition against increase of risk, was issued upon a build- ing described as "occupied by tenants," and experts testified that a higher premium was charged for unoccupied houses , but the pre- mium for occupied houses varied with the character of the tenants, and "some tenants were worse than no tenants at all;" it was held that the judge erred in refusing to rule, that the plaintiff could not recover, if the building was unoccupied so long as to render the risk greater than it would have been, with tenants of or- dinary care and habits. Luce ». Dorchester Ins. Co., 105 297. See, also, Mulry ». Mohawk Valley Ins. Co., (5G.) 71 541. 289. In stating facts, which have subsequently occurred, to increase the risk, pursuant to a re- quirement to that effect in the policy, the in- sured is bound to the same degree of strictness, as in disclosing facts existing at the time of the application. Calvert v. Hamilton Ins. Co., (1 A.) 83 308. 808 INSUKANCE, III, (9), (A), (B), (C). (9.) Overvaluation ; Illegality ; pro- hibited use. (A.) Overvaluation. 290. An indictment for a conspiracy to pro- cure an overinsurance, cannot be maintained. Comm. ij. Prius, (9 G.) 75 127. 291. Where the policy contains a condition against overvaluation, the assured cannot give in evidence, to show good faith on his part, offers to purchase and refusals, made after the policy. Wood v. Firemen's Ins. Co., 126 316. 292. Such offers and refusals, either before or after the policy, are inadmissible as evidence of actual value. Wood®. Firemen's Ins. Co., 126 316. [See, also, Evidence, IX, (6).] 293. So, upon the question of the value of buildings insured, evidence of the price at which the land was sold, after the buildings were burned, and of offers before, is inadmissible. Bardwellfl. Conway Ins. Co., 122 90. 294. An appraisal by another insurer, upon which a policy was issued, is inadmissible upon the question of overvaluation. Bardwellfl. Conway Ins. Co., 122 90. 295. If a representation of value is made in good faith, the fact that the actual value was less, will not avoid the policy. Harrington v. Fitchburg Ins. Co., 124 126. (B.) Illegality. 296. A policy upon billiard tables or liquors, kept in violation of law, is void, and so if it is on both, and either are illegally kept. Kelly v. Home Ins. Co., 97 288; Johnson v. Union Ins. Co., 127 555. 297. It is immaterial that the insured applied immediately for a license, and obtained one a month afterwards, and before the fire. Lawrence «. National Ins. Co., 127 557, note. 298. If the direct and immediate purpose of the contract of insurance, is to protect and en- courage an illegal traffic, the policy does not attach; but if the contract is collateral and in- dependent, although in some measure connected with acts in violation of law, it is not void. Boardman v. Merrimack Ins. Co., (8 C.) 62 583; Kelly v. Home Ins. Co., 97 288; Johnson v. Union Ins. Co., 127 555. 299. The illegal drawing of a lottery, with the consent and participation of the insured, in a building insured as a shoe manufactory, does not, per se, avoid the policy on the building or the stock. Boardman v. Merrimack Ins. Co., (8 C.) 62 583. See, also, Loud v. Citizens' Ins Co., (2 G.) 68 221. 300. A policy upon a billiard room and bowl- ing alley is valid, although issued to A only, where the license is to A and B, and although the license expires, and the business is continued without a license for a short time, a new license being obtained before the loss occurs. Hinckley a. Germania Ins. Co., 140 38. 301. Where a policy is conditioned against the use of the building for an unlawful pur- purpose, it is avoided by storing liquors therein, with intent to sell the same without a license. Kelly v. Worcester Ins. Co., 97 284. 302. And where such a condition is general and unqualified, an unlawful use by a tenant, without the knowledge of the insured, avoids the policy. Kelly v. Worcester Ins. Co., 97 284. 303. But where the policy contains no such condition, it is not avoided by the fact that the building is represented in an application, made by the terms thereof a warranty, as occupied by a tenant for a hotel, and leased as such; whereas it is used by the tenant as a house of ill fame, without the knowledge of the insured. Halls. People's Ins. Co., (6 G.) 72 185. 304. One who has received personal property, by a conveyance fraudulent as to creditors, has an insurable interest therein; and in case of loss, may hold the insurance money against them. Lerow v. Wilmarth, (9 A.) 91 382. (O.) Prohibited use. [See, also, onto, III, (2).] _ 305. Where a policy upon a factory is condi- tioned, in a printed clause, against working at night, and contains a written clause, allowing the insured to work at night for four months, and the insured continued to work at night after the expiration of the four months; it was held, that he could not recover; and that oral evi- dence was inadmissible, that similar establish- ments were run at night; that the insured could not successfully prosecute his business without doing so; and that the agent of the insurer knew the facts. Reardon v. Faneuil Hall Ins. Co., 135 121. 306. Where a policy is conditioned to be void, if the property is used for any of the purposes, specified as peculiarly hazardous, in the terms and conditions thereof, the use of part of the property for one of those purposes avoids it, although the property is described in the policy as used for another purpose, specified in the same or a lower class of hazards; and oral tes- timony that such use did not increase the risk, or that it was known to the insurer's agent, is incompetent. Lee D.Howard Ins. Co., (3G.) 69 583. 307. Such a policy to a mortgagor, out of possession, is avoided by the use of the property for a prohibited purpose, by a lessee of the mortgagee in possession. Wetherell v. City Ins. Co., (16 G.) 82 276. 308. Where "sailmakers" and "confec- tionery" were among the occupations and INSURANCE, III, (9), (C); (10). 809 articles, specified as peculiarly hazardous, in the list, annexed to a policy containing such a con- dition, it was held that the policy was avoided by hiring a portion of the building to a sail- maker, who had brought in his tools and stock, but had not begun work, and by keeping a small quantity of confectionery in glass jars in a barber's shop. Wetherell e. City Ins. Co. (16 G.) 82 276. 309. For a case where, under the peculiar language of the policy, it was held that such a prohibit.on as to "rags" was confined to oily rags, and did not apply to clean white rags, see Elliott v. Hamilton Ins. Co., (13 G.) 79 139. 310. A general description of the building, and of the purpose for which it is occupied, will allow the assured to keep articles included in the list of those peculiarly hazardous, if they are necessarily comprehended within a fair and reasonable interpretation of the language used. Whitmarsh v. Conway Ins. Co., (16 G.) 82 359. See, also, Whitmarsh s. Charter Oak Ins. Co., (2 A.) 84 581. 311. And a policy containing the condition referred to, with a list enumerating burning fluid, gunpowder, oil, friction matches, etc., as peculiarly hazardous, which insures on "a stock in trade, consisting of the usual variety of a country store," and contains a special per- mission to keep and sell burning fluid and gun- powder, is not avoided by keeping also oil and friction matches, where they are articles usually kept for sale in a country store; which fact may be proved by oral testimony. Whitmarsh ». Conway Ins. Co., (16 G.) 82 359. See, also, Elliott v. Hamilton Ins. Co., (13 G.) 79 139. 312. The provision as to peculiarly hazardous purposes does not apply to other condiiions in the policy, the nature and extent of which are specially prescribed therein. Mullaney v. National Ins. Co., 118 393. (10.) mortgagee. [See, also, a«fe,.III, (6).] 313. A mortgagee may insure his interest generally; he need not disclose the nature of it, unless inquired of; and in case of loss, he is entitled to recover to the amount of his debt, and apply the money to his own use, without accounting therefor with the mortgagor; and it is no defence that his title is defeasible, or that ne suiters no actual loss by the fire because his security . remains sufficient; even where the mortgagor has repaired the building, so that it is as valuable as before. King v. State Ins. Co., (7 C.) 61 1- Foster v. Equitable Ins. Co., (2 G ) 68 216; Suffolk Ins. Co. t>. Boyden, (9 A.) 5*1 123; Davis v. Quincy Ins. Co., (10 A.) 92 113; Per Morton, Ch. J., in Washington M. Man. Co. ■». Weymouth Ins. Co., 135 503. nmt' ^? eretne mortgagor's policy, issued by a mutual insurance company, is assigned to the mortgagee with the company's assent, and he Vol. 1—102 gives a new deposit note or agreement to pay assessments, etc., there is a new contract with him, which is not affected by any subsequent act of the mortgagor, in violation of the condi- tions of the policy. Poster v. Equitable Ins. Co., (2 G.) 68 216. See, also, Engsley v. N. E. Ins. Co., (8C.) 62 393. 315. But aemble, that unless he gives such a new note, the mortgagee is still "the insured," within the policy. Bowditch Ins. Co. «. Winslow, (3 G.) 69 415. 316. Where, by an indorsement upon a policy to the mortgagor, it is made payable, in case of loss, to a mortgagee, a violation of any of the conditions of the policy avoids it, both as to the mortgagor and the mortgagee. Franklin Sav. Inst. v. Central Ins. Co., 119 . 240. See, also, Foggs. Middlesex Ins. Co., (10 C.) 64 337; Hale. v. Me- chanics' Ins. Co., (6 G.) 72 169; Loring v. Manufacturers' Ins. Co., (8 G.) 74 28; Touug v. Eagle Ins. Co., (14 G.) SO 150; Smiths. Union Ins. Co., 120 90. 317. So where the violation of the conditions was in a false representation of the title, made by the mortgagor at the time the policy was effected. Fitchburg Sav. Bk. v. Amazon Ins. Co., 125 431. 318. But in such a case, the mortgagee's rights being fixed by the loss, he is not bound by an adjustment of the loss between the mortgagor and the insurer. Harrington v. Fitchburg Ins. Co,, 124 126. 319. And where the mortgagor has parted with the legal title, leaving only an equit- able and contingent right, his acts in violation of the conditions of the policy do not affect the mortgagee. Wheeler v. Watertown Ins. Co., 131 1 ; cited more fully, ante, arts. 257 to 259. 320. An indorsement by the insurer upon a policy to the mortgagor, consenting to pay the insurance money, in case of loss, to the mort- gagee, and a redelivery of the policy thereupon to the mortgagor, with knowledge of the fact, is a waiver of a forfeiture of the policy already incurred, by a violation of a condition thereof; and the mortgagor may recover thereupon, in case of a subsequent loss. Oakes i>. Manufacturers' Ins. Co., 135 248. 321. But where A was insured on a house by a policy, payable in case of loss to B, a mort- gagee, and after alienation by A and entry by B for breach of condition, whereby the policy became void, the insurer, without a new con- sideration, indorsed upon the policy an agree- ment that the policy should attach to and cover B's interest, and delivered the same to B, it was held that B could not maintain an action for a subsequent loss. Davis v. German American Ins. Co., 135 251. 322. Where a policy to a mortgagor, loss payable to a mortgagee, stipulated that no sale or transfer of the property should vitiate the right of the mortgagee to recover in case of 810 INSURANCE, HI, (10). loss, and the mortgagor afterwards made a second mortgage to one, who entered to fore- close, and who procured additional insurance with another insurer, and the property was then damaged by fire, and the loss adjusted at less than the amount of the first mortgage, it was held that the first mortgagee was entitled to recover for the full loss. City F. C. Sav. Bk. v. Pennsylvania Ins. Co., 122 165. 323. Where the owner of the equity of re- demption, pursuant to a stipulation in the mort- gage - , procures insurance, loss payable to the mortgagee, and the policy contains a similar provision as to sale or transfer, and the equity of redemption is afterwards sold, and a loss occurs, upon paying which the insurer takes from the mortgagee an assignment of the mort- gage and of the policy, the purchaser of the equity is nevertheless entitled to the benefit of the payment, and may redeem upon paying the mortgage debt, less the insurance money so paid. Graves v. Hampden Ins. Co., (10 A.) 92 281. 324. But where a policy of insurance, loss payable to a mortgagee, provides that the in- surance, as to the mortgagee only, shall not be invalidated by any acts of the mortgagor, and that, where a loss is paid to the mortgagee, the insurer shall be subrogated to his rights to the extent of the payment, and shall be entitled to an assignment of the policy, on paying the bal- ance of the mortgage debt; and a loss occurs under such circumstances, that the mortgagor could not have recovered; and the insurer pays the full amount of the mortgage, and takes an assignment thereof; a second mortgagee and owner of the equity of redemption, cannot re- deem from the insurer, without paying the en- tire mortgage debt. Allen v. "Watertown Ins. Co., 132 480. 325. If the purchaser at a sale under a power in a mortgage, executes to the mortgagee a new mortgage for the purchase money, and the former owner of the equity acquires his title, and takes out a policy, loss payable, generally, to the mortgagee, it will be presumed that the second mortgagee is the one contemplated. Bailey -«. Mtua, Ins. Co., (10 A.) 92 286. 326. Where a mortgagor covenants with the mortgagee to keep the building on the property insured for the latter's benefit, and afterwards, without the latter's knowledge, takes out a policy in his own name, partly on the building and partly on personal property; the mortgagee has no equitable claim upon the policy, which he can enforce by an action at law in the name of the mortgagor, after the insurer, with notice of the mortgagee's claim, has settled with the mortgagor. Stearns v. Quincy Ins. Co., 124 61. 327. A mortgagee, whose interest has been insured by a policy, providing that in case of payment of a loss he shall assign his mortgage to the insurer, may recover the sum insured, although, before the making of the policy, he had agreed to convey the property to another, who was to have the benefit of the insurance, and who before the loss had paid the expense thereof. Davis v. Quincy Ins. Co., (10 A.) 92 113. 328. A mortgagee of chattels may recover the full sum insured, although he has made an executory contract to assign the same, and has received a partial payment thereupon, which leaves the residue to be paid less than the sum insured. Haley *. Manufacturers' Ins. Co., 120 292. 329. Where a mortgagee takes out a policy in the name of the mortgagor, loss payable to the mortgagee, and afterwards sells the land under a power in the mortgage, and cancels the policy, taking out a new policy to the pur- chaser, the mortgagor cannot recover for rebate of premium. Parker v. Smith Charities, 127 499. 330. A mortgagor, with the consent of the mortgagee, may bring an action upon a policy wherein the loss is made payable to the latter. Jackson v. Farmers' Ins. Co., (5 G.) 71 52; Turner®. Quincy Ins. Co., 109 568. 331. Where a mortgage contains a covenant to insure for the benefit of the mortgagee, and the mortgagor takes out a policy in his own name, the mortgagee has an equitable lien upon the policy, which he may enforce by bill in equity. Hazard v. Draper, (7 A.) 89 267 332. Money, paid to a mortgagee by an insur- ance company, pursuant to its contract with the mortgagor, cannot be applied by the former, without the latter's consent, to the payment of the mortgage debt, if that is not due. Gordon v. Ware Sav. Bk., 115 588. 333. In such a case, if the mortgagee pays the money to the mortgagor, to be applied in repairs upon the premises, and it is so applied, a second mortgagee has no equity to have the sum applied upon the first mortgage. Gordon v. Ware Sav. Bk , 116 588. 334. An insurance by a mortgagee is not an insurance of the debt, although that is the measure of his insurable interest. There is no privity of contract between the insurer and the mortgagor; the mortgagee cannot charge the premium to the mortgagor; and the latter can derive no benefit from the insurance in case of loss. Suffolk Ins. Co. ■». Boyden, (9 A.) 91 123. See, also, White v. Brown, (2 C.) 56 412; King v. State Ins. Co., (7 C.) 61 1. 335. In such a case, the mortgagee is entitled to recover a loss accruing before payment of the mortgage debt, without assigning his mort- gage to the insurer. King v. State Ins. Co., (7 C.) 61 1. 336. And the insurer cannot, upon an offer to pay the loss, and the balance of the amount due upon the mortgage, maintain a bill in equity for an assignment of the mortgage, and a subrogation to the remedies of the insured thereunder. Suffolk Ins. Co. v. Boyden, (9 A.) 91 123. INSURANCE, HI, (11). 811 (11.) Remedies and defences; wlien and bow suit brought; parties; pleadings; proceedings. 337. Before the statute, G. S„ Ch. 58, § 16; P. S., Ch. 119, § 43, it was held that a provision in a policy or by-law, requiring an action against an insurance company, to be brought in the county where the company was es,tablised, was void; but a limitation of the time within which an action must be brought, to a time less than two years, was valid. Nute v Hamilton Ins. Co., (6 G.) 72 174; Hall v. People's Ins. Co., (6 G.) 72 185; Amesbury v. Bowditch Ins. Co., (6 G.) 72 596; Fullam v. N. Y. Union Ins. Co.. (7 G.) 73 61. 338. Where the policy of a foreign company provides that an action shall not be brought against it, unless within twelve months after a loss, an action brought after that time may be maintained, if the jury find that the company's agents purposely delayed a settlement, until the time should lapse, and wilfully and in bad faith misled the plaintiff into the delay. Little v. Phoenix Ins. Co., 123 380. 339. As to the time within which, and place where, an action must be brought against the Middlesex Mutual Fire Insurance Company, under its charter, St. 1825, Ch. 141, see Boynton v. Middlesex Ins. Co., (4 Met.) 45 212. 340. A by-law of an insurance company, allowing the directors to repair, rebuild, etc., within a reasonable time, the insured paying one third of the expense, and that the company shall not be liable to an action, until the insured has given security to pay such proportion, nor unless the company shall neglect for thirty days thereafter to repair, rebuild, etc., does not pre vent the insured from maintaining an action, upon the failure of the company to complete, within a reasonable time, repairs begun within the thirty days. Haskins v. Hamilton Ins. Co., (5 G.) 71 432. 341 A, as surviving partner of A & B, may sue upon a policy issued to the firm, upon a house owned by them as tenants in common; and the heir of B cannot join with him. Work v. Merchants', etc., Ins. Co., (11 C.) 65 271; Oakman «. Dorchester Ins. Co., 98 57. 342. One cannot sue upon a policy to two, upon their joint property, without proof of an assignment to him of the other's interest, and the insurer's assent thereto. Tate v. Citizens' Ins. Co., (13 G.) 79 79. „ <*43. A corporation may sue upon a policy to A and others," on proving that A was a stock- a£ m it; that itowne(i tlle insured property; and that the policy was procured by and issued to the plaintiff. Shawmut Sugar Ref. Co. v. Hampden Ins. Co., (12 G.) 78 540. 344. The directors of a mutual insurance company are liable to the insured upon a bill in equity, to which the company is a necessary party, where, having funds to pay a loss, they iraudulently apply the funds to other purposes, «ut not where they act in good faith, although ™A want of due care and judgment. Lyman v. Bonney, 101 562; Lyman v. Bonney, 118 222. 345. Under the R. S., a policyholder cannot recover against the directors, tor issuing the policy when the company's liability exceeded the capital, without first recovering judgment againt the company. Kinsley «. Rice, (10 G.) 76 325. 346. In an action upon a policy of re-insur- ance the plaintiff must prove the subject at risk and the loss, as if he was the original insured, and the re-insurer may make the same defences, as the original insurer. Merry ». Prince, 2 176; per Gray, J., in Eastern Railroad v. Relief Ins. Co., 98 420. 347. Sufficiency of a declaration upon a policy of insurance. Butterworth «. Western Ass. Co., 132 489. 348. An allegation in the declaration, that the plaintiff has furnished due proofs of loss, is sustained by proof that the defendant waived any informality in those furnished. Butterworth*. Western Ass. Co., 132 489. [As to proofs of loss, see ante, I, (6).] 349. Since the practice act, the defendant cannot rely upon a misrepresentation, to show the policy to be void, unless it is set forth in the answer, although it is first disclosed by the plaintiff's evidence. Haskins v. Hamilton Ins. Co., (5 G.) 7 1 432; Mulry v. Mohawk Valley Ins. Co., (5G.) 71 541. 350. An answer, setting forth a violation of a condition as to the occupation of the building by the insured, at the time he procured the policy and afterwards, will not admit proof of such a change of the occupation after he procured the policy. Peirce ■». Cohasset Ins Co. . 123 572. 351. In an action upon a policy, and also upon an agreement to insure, if it appears that a policy was filled up and not delivered, and it is in dispute, whether it was prepared in pur- suance of a completed agreement to insure, the defendant may be required to annex a copy of it to interrogatories filed by the plaintiff. Baxter i>. Massasoit Ins. Co , (13 A.) 95 320. 352. Mere negligence on the part of the insured, although it caused the fire, is no defence; but, semile, that gross recklessness or misconduct, although falling short of fraud, may form a defence. Chandler 13. Worcester Ins. Co., (3 C.) 57 328; Johnson v. Berkshire Ins. Co., (4 A.) 86 3»8. 353. It is not a defence to an action upon a policy on goods in transit, that the insured has, by a contract with the carrier, given him the benefit of the insurance, if there is no express or implied prohibition in the policy against his so doing; and the usual clause against an assignment of the policy is not such a pro- hibition. Jackson Co. v. Boylston Ins. Co., 139 508. 354 Where the sole general partner, in a limited partnership, effected an insurance in 812- INSUKANCE, HI, (12), (13). his own name only, it was held that the insur- ance company could not show in defence, that the members of the limited partnership had not complied with the statute, and had so trans- acted the business as to become general part- ners; or that the insured concealed the fact that the others were interested; or that he stated in the proofs of loss that he was the sole owner; or that he refused, after the fire, to separate the damaged from the undamaged portion of the goods, and to furnish the com- pany with a detailed statement of loss by items; that he could recover the full amount of the loss, not merely his interest; and, the evidence being conflicting as to whether any material part of the goods was undamaged, that the company was not entitled to an instruction to to the jury, that the result of an auction sale of the goods, damaged and undamaged, with- out separation, was not admissible as tending to show the amount of the loss. Clement v. British Am. Ass. Co., 141 298. (12.) Evidence. [See, also, ante, III, (11).] 355. The burden of proving untrue a repre- sentation upon which the policy was issued, is upon the insurer. Daniels v. Hudson R. Ins. Co., (12 C.) 66 416. See, also, Jones M. Co. ». Manufrs Ins. Co., (8 C.) 62 82; Camp- bell «. N. E. Ins. Co., 98 381; Dodd v. Gloucester Ins. Co., 127 151. 356. Where the insurer contends that the contract was made under a mutual mistake, as to whether a previous risk had expired, the bur- den of proof is upon him to show that the mistake was material, and the question of its materiality is for the jury. Dodd v. Gloucester Ins. Co., 127 151. 357. The words "on condition,'' etc., do not necessarily, create an exception or condition. If the entire contract shows that a clause nega- tiving the right to recover, is a proviso, avoid- ing the defendant's promise by way of defeas- ance or excuse, the defendant must plead it and prove it, if it is an exception or condition, so that the promise is to perform only what re- mains, after the part excepted is taken away, the plaintiff must negative it and prove his allegation. Kingsley v. N. B. Ins. Co., (8 C.) 62 393- Sohier v. Norwich Ins. Co., (11 A.) 93 336. 358. The burden of proving the applicant's knowledge of material facts, not disclosed, is upon the insurer. Houghton v. Manufacturers' Ins. Co., (8 Met) 49 114. 359. Upon the issue whether ashes were kept in wooden vessels, contrary to a stipulation in the application, the insurer cannot prove that they were so kept before the policy was made, even to contradict witnesses who testify that they were never so kept. Underhill v. Agawam Ins. Co., (6 C.) 60 440. 360. An application and policy describing the property as the plaintiff's, is prima fade evidence of his title and insurable interest. Nichols ». Fayette Ins. Co., (1 A.) 83 63. 361. The question whether repairs made by the insurer, under a right reserved in the policy, were made in a reasonable time, is for the jury, although the particular circumstances are not disputed. Haskins v. Hamilton Ins. Co., (5 G.) 71 432. 362. In an action upon a policy upon goods, another policy, made at the same time, and be- tween the same parties, upon the building, is admissible to explain the transaction. Fogg «. Middlesex Ins. Co., (10 C.) 64 337. 363. Where an application for insurance upon a factory states, that casks of water are kept full in each room, the insured may show a general usage among manufacturers, to apply the word "room" to an entire story devoted to a par- ticular department, whether the insurers knew of the usage or not; and the existence of the usage, and the meaning of' the word in the ap- plication, are for the jury. Daniels v. Hudson R. Ins. Co., (12 C.) 66 416. 364. In an action by the original insured on a policy assigned, with the insurer's assent, to a purchaser, and re-assigned as collateral security for a purchase-money mortgage, the purchaser s declarations as to the contents of the building, and the cause of the fire, are not admissible against the plaintiff. Kingsley v. N. E. Ins. Co., (8 C.) 62 393. 365. Evidence that three weeks before the fire, a bonfire was made by boys outside the building, with a trail of straw leading to the building, is not admissible against the insured, to show the condition of a quantity of loose straw in the building. White v. Springfield Ass. Co., (8 G.) 74 566. 366. A defence, that the property was de- stroyed by the wilful and fraudulent act of the insured, need not bo established beyond a rea- sonable doubt; and the general character of the plaintiff is not necessarily involved in the issue; nor is it necessary to prove that he committed an indictable offence. Schmidt v. N. Y. Union Ins. Co., (1 G.) 67 519. [As to proof of the actual value of the property insured, see Evidence, IX, (6); and ante, arts. 283, 294. As to proof of an increase of risk, see ante, III, (8) ; of other insurance, see ante, III, (7).] (13.) Damages. 367. A contract in a policy to pay within a certain time, after proofs, is not a contract to pay interest after that time; and a trustee pro- cess, commenced by a creditor of the assured, before the expiration of the time, excuses the insurer from paying interest while it is pending,, although the money is not kept separate; but, semble, that the insurer is chargeable with in- INSURANCE, HI, (13). 813 terest, for an unreasonable delay in answering in the trustee process. Oriental Bk. v. Tremont Ins. Co., (4 Met.) 45 1. 368. Where the property is covered by several policies, each insurer is liable only for his pro- portion of the loss, although some of the poli- cies also cover other property. Blake «. Exchange Ins. Co., (12 G.) 78 265. 369. The contract of the insurer is, not that if the property is burned, he will pay the insured its market value, but that he will save him harmless, or put him in as good condition as far as practicable, as he would have been if no fire had occurred; and the true rule of indem- nity is not always to ascertain what the actual loss to the plaintiff was, or to what extent he has suffered by the fire. .Per Moeton, Ch. J., in "Washington Mills M. Co v. Weymouth Ins. Co.. 135 503. See, also, Brinley v. National Ins. Co., (11 Met.) 52 195. 370. Thus where the grantor of land reserved the ownership of the buildings, if removed before a day named, and if not so removed, they were to be forfeited to the grantee, and they were destroyed before the day named, he may recover against the insurer their actual intrinsic cash value. Washington Mills M. Co. v. Weymouth Ins. Co., 135 503. 371. And where goods on a steamboat were insured against loss by fire, and a fire happened in consequence of collision with another steam- hoat, and the former boat sunk before the goods ■were reached, it was held that the insured might recover their actual value." New York, etc., Express Co.®. Traders', etc., Ins. Co., 135 221. [See, also, ante, HI, (4).] 372. The rule of salvage, and the distinction between total and partial losses, do not apply to a fire policy; and there is no settled rule of deduction from the estimated cost of a new building_ for the difference between old and new, as in a case of marine insurance. Liscom v. Boston Ins. Co., (9 Met.) 50 205; Brinley v. National Ins. Co., (11 Met.) 52 195; Post ». Hampshire Ins. Co., (12 Met.) 53 555. 373. But an instruction to the jury that no deduction is to be made from the expense of rebuilding, although the new building may be more durable, and for some purposes more valuable, than the old, 23 erroneous. Brinley v. National Ins. Co., (11 Met.) 52 195. ' . 374. If property insured at less than its value is partly destroyed, the insured may recover nis entire loss, not exceeding the sum insured. Underbill i>. Agawam Ins. Co., (6 C.) 60 440. J? 75 ' ^f t0 tlle mode of determining the loss, wnere the policy expresses the amount of the insurance in dollars, and the loss occurred in a wreign country, see Burgess v. Alliance Ins. Co.,. (10 A.) **« 221. 376. A consignee, representing that he wished insurance only upon goods on which he had made advances, can recover only to the extent of his lien, not for the consignor's in- terest. Parks v. General Interest Ass. Co., (5 P.) 22 34. 377. Where, after the insurer has pp'd for a partial loss, the property is destroyed by an- other fire, he is liable only for the difference between the sum insured and his former pay- ment; and if two buildings were insured in separate sums, and both losses are on the same building, the rule applies as to the sum sepa- rately insured on that building. Curry v. Comm. Ins. Co., (10 P.) 27 535; Trull ». Boxbury Ins. Co., (3 C.) 57 263. 378. If the policy provides that the insurer may make good the damage by repairs, the insured to contribute one quarter of the ex- pense thereof, and the insurer makes repairs of substantial benefit, but not fully making good the loss; the measure of damages is the difference between the value of the building, if fully re- paired, and its value as actually repaired, de- ducting one quarter of the value of the repairs. Parker ». Eagle Ins. Co., (9 G.) 75 152. 379. A mortgagor, insuring his equity of re- demption, may recover the value thereof, not exceeding the sum insured, although the equity is subsequently sold under an execu- tion. Strong v. Manuf'rs Ins. Co., (10 P.) 2 7 40. 380. Where a policy is issued upon a written application, by a company authorized to insure property to three fourths of its value, the valu- ation stated in the application is, in the absence of fraud, conclusive upon the insurer, if the policy contains no stipulation controlling it; and, since the statute of 1864, as to which, see ante, III, (1), a covenant in the application does not suffice for that purpose. Luce v. Dorchester Ins. Co., 105 297. See, also, Borden t>. Hingham Ins. Co., (18 P.) 35 523; Puller v. Boston Ins. Co., (4 Met.) 45 206; Phillips v. Merrimack Ins. Co., (10 C.) 64 350; Nichols v. Payette Ins. Co., (1 A.) 83 63; Phoenix Ins. Co. v. McLoon, IOO 475. 381. And a proviso in the policy, restricting the liability to a proportion of three fourths of the actual value, in case of additional insur- ance, does not control it. Luce v. Dorchester Ins. Co., 105 297. 382 Nor does this statement in the policy itself, "the amount insured being not more than three fourths the value of the property, as stated by tho applicant." Luce v. Dorchester Ins. Co., 105 297. 383. But a clause in the policy, that the insurer shall not be liable beyond three fourths of the actual cash value of the property, at the time of the loss, suffices to prevent fhc insurer from being concluded by the valuation in the application. Brown v. Quincy Ins. Co., 105 396. 814 INSURANCE, III, (13), (14); IV, (1). 384 The rule as to valuation applies in like manner to the insured, who cannot show that the property was worth more than his valua- tion, although the amount insured exceeded three fourths thereof. Holmes fl.Charlestown Ins. Co., (10 Met.) 51 211. 385. II where a valued policy is paid in full, the amount due under a subsequent policy, not valued, issued by a mutual company, does not exceed (he proportion which it bears to the whole insurance, and the assured will not receive in all more than three fourths of the value, it is immaterial that the prior policy contains no clause of contribution, or that the assured received, under an adjustment, less than the face of the prior policy. Bardwell v. Conway Ins. Co., 122 90. 386. For rulings, respecting the adjustment of losses, in various cases where the policies contained the clause as to three fourths of the value, or the insurances were limited by statute to such three fourths, see Post «. Hampshire Ins. Co., (12 Met.) 53 555; Trull v. Roxbury Ins. Co., (3 C.) 57 263; Haley v. Dorchester Ins. Co., (12 G.) 78 545; Richmondville IT. Seminary «. Hamilton Ins. Co., (14 G.) 80 459; Haley ». Dorchester Ins. Co.. (1 A.) 83 536; Bardwell v. Conway Ins. Co., 118 465. C14.) Insurer's remedy upon payment. 387 Where an insurer, at the request of the insured, and in ignorance that the latter had set fire to the property, paid the loss to a creditor, who received it in good faith, it was held that the insurer might recover against the insured, but not against the creditor; that the bank- ruptcy of the former was no defence; and that it was immaterial, as respected the creditor, that he took an assignment of the interest of the insured in the policy; that the payment was made by a, check to the order of both; and that both signed -a receipt. Merchants' Ins. Co. v. Abbott, 131 397. 388 Under St. 1840, Ch. 85, an insurance company, which has paid a loss from a Are, communicated by the engines of a railroad com- pany, may maintain an action against the com- pany in the name of the insured, who cannot release the action. Hart v. Western Railroad, (13 Met.) 54 99. [See St. 1874, Ch. 372, § 108; P. S., Ch. 112, § 214.] 389 Payment of a loss by an insurer, or an agreement with him to prosecute for his "benefit, does not affect one's right to recover against a wrong doer, for maliciously setting fire to the plaintiff's building Haywarda Cain, 105 213. 390. For other rulings upon this subject, and analogous rulings in cases of marine insurance, see Clark «. Wilson, 103 219; Mercan- tile Ins Co. v Clark, 118 288, and numerous cases cited therein. See, also, Stjbrogation. IV. Life Insurance. (1.) Policy; effect thereof; application therefor. [As to Insurable interest, see ante, I, (2).] 391. Where a policy insures A on the life of B, B cannot avoid the policy for fraud, or re- cover back the premiums paid, although he caused the policy to be effected, and paid the premiums. North America Ins. Co. v. Wilson, 111 542. See, also, Campbell «. N. E. Ins. Co., 98 381. 392. Where A, without B's knowledge, in- tending to make B a gift, took out a nonforfeit- able policy on his own life, payable to B, and paid the premiums as far as they were due, it was held that he could not maintain a bill in equity against B and the insurer, to compel an assignment of the policy to himself, and the insurer's assent thereto. Potter t>. Spilman, 117 322. 393. An application for a policy of life in- surance is part of the contract, where the latter so provides; and if a material fact is untruly stated or concealed therein, the policy is void, although no specific question relating thereto was put, and although the misrepresentation or concealment was accidental, if a general ques- tion was put, which would fairly elicit the fact. Vose v. Eagle Ins. Co., (6 C.) 60 42; McCoy v. Metropolitan Ins. Co., 133 82. [See ante, I, (3)/| 394. If the policy provides, that if the state- ments in the application shall be found in any respect untrue, the policy shall be void, they are warranties, and if untrue, even in a point immaterial to the risk, the policy is void. Miles v. Connecticut Ins Co., (3 G.) 69 580. 395. Where an applicant was in a consump- tion when he effected the policy, the symptoms of which had begun to develop themselves, and were known to him, and were not disclosed in answer to a general interrogatory as to his health, although sufficient to induce a reason able belief on his part that he had that disease; it was held, that whether his statements amounted to a warranty or riot, they were so materially untrue, as to avoid the policy, al- though true according to his belief. Vose v. Eagle Ins. Co., (6 C.) 60 42. 396. Qu., whether a general reference in the policy to " statements made by or in behalf of the insured as the basis of, or in the negotia- tions for, this contract," is sufficiently definite to incorporate the written application into the policy. Campbell v. N. E. Ins. Co., 98 381. 397. But even if they are so, if the applica- tion contains nothing to indicate that its state- ments are warranties, they are represenations, and are not made warranties by a provision in the policy that, if such statements shall be f ouud in any respect untrue, the policy shall be void, Campbell t>. N E. Ins. Co , 98 381. 398. The burden of proving such a represent- ation to be untrue, is upon the insurer. Campbell «. N. E. Ins. Co., 98 381. INSURANCE, IV, (1), (2). 815 399 For a case where it -was held that, under such a policy, the representations must be com- nlied with, not literally but substantially in all respects material to be disclosed; that, if ma- terially untrue in such respects, they avoid the policy although made ignorantly and in good faith- and that it was rightfully left to lie jury to decide, whether repeated instances of spitting blood were indications of such a dis- pose as the applicant was bound to disclose, see ' Campbell v. N. E. Ins. Co., 98 381 400. "Where one takes out a policy upon an- other's life, the fact that he was then engaged in an illegal trade, without the applicant's knowledge, does not render the policy void. Lords. Dall, 12 115. 401. Where a policy insured the party "for the period of twelve months," against loss of life from a personal injury, which ' ' shall oc- casion death within ninety days from the hap- pening thereof," and the insured sustained an injury, which occasioned his death at about the same hour of the day on the ninety-first day thereafter, excluding the day of the accident, the whole period being within the twelve months, it was held, that the insurers was not liable. Perry v Provident Ins. Co., 99 162. See this case explained in Bemis ». Leon- ard, 118 502. 402. If a policy contains a provision, that it shall not take effect until the advance premium is paid during the life of the insured, a pay- ment by another, without his knowledge, but with his money, does not validate it, and his administrator cannot ratify the payment. Whiting v. Mass. Ins. Co.. 129 240. [See ante, I, (4).] 403. Where a policy insures the life of A for the use of B, A cannot recover back premiums paid by him, although the policy was void by reason of the fraud of the insurer's agent. Trabandt v. Connecticut Ins. Co., 131 167. See, also, North America Ins. Co. *. Wilson, 111 542. 404. Where the policy was on the life of A, payable on his death to his wife and children and their assigns, and, if he survived a certain day, to himself, it was held, that he had an assignable interest therein. Pierce «. Charter Oak Ins. Co.. 138 151 405. Where the policy refers throughout the / body thereof to the annual payment of the pre- mium, but in the margin are words and figures denoting that half of the premium is payable in cash, and half by note, these words and figures form part thereof, and a payment pursuant thereto is a payment of " a complete annual pre- mium," within the meaning of the policy. Pierce v. Charter Oak Ins. Co., 138 151 C2.) When the policy Is or Is not for- feited. 406. A policy, permitting the insured to pass by sea between eertain ports, "on first class decked vessels," is not forfeited by his going on such a vessel as a steerage passenger. Taylor «. MAw, Ins. Co. (13 G.) 434. 79 407. Where one whose life was insured had permission to go to California, and return by way of Cape Horn or Vera Cruz, and, being taken sick in California, he returned by way of Panama and Chagres, and soon afterwards died, it was held that the policy was forfeited, although he returned by tht shortest and safest way. Hathaway v. Trenton Ins. Co., (11 C.) 65 448. 408. Where the policy was conditioned to be void, if the insured engaged in sea service, with- out the insurer's consent, but had a permit annexed to it authorizing him to do so, ' on the prior payment any year of an additional premium of five dollars," and he paid the add! tional premium fcr a year only, and remained in sea service more than a year, it was held that the policy was forfeited. Ayer ». N. E. Ins. Co., 109 430. 409. Where a policy of insurance, issued at Boston, described the insured as residing in Valparaiso, as did the application, it was held that he had a right to remain at Valparaiso without permission, although the policy con- tained a permit for him to do so upon payment of a sum left blank; and that a payment by the payee of the policy and agent of the insured, without his authority, for permission to reside there one year, might be recovered back. Forbes v. Am erican Ins. Co., (15 G.) 81 249. 410. Upon grounds of public policy, without any express stipulation to that effect, a recovery cannot be had upon a policy, where death ensues from the insured having voluntarily sub- mitted herself to an operation for an abortion. Hatch v. Mut. Ins. Co., 120 550. 411. Where a policy is conditioned to be void, if the assured dies in the known violation of any law, the fact that the insurer was a mutual insurance company, of which the insured was a member, does not give to the provision any different meaning or application, than it would have in a similar contract between other parties. ClufE ii Mutual Benefit Ins. Co., 99 317 412. Such a provision which specifies the laws of the states, or of th° United States, or of any country which the insured may be per- mitted under the policy to visit^ requiresfoe insurer to prove, in order to avoid the policy, that he died while engaged in a voluntary criminal act, known by him to be a crime against the laws of such state or country; but it will be presumbed that acts, criminal at com- mon law, and by the laws of civilized countries, are criminal by the laws of another state of the Union and that the insured knew that they were so. Cluff v. Mut. Benefit Ins. Co., (.13 A.) 95 308; Cluff v. Mut. Benefit Ins Co., 99 317. 413. To exonerate the insurer, it must be shown that the death was in consequence of the crime- and if there is a dispute whether the insured had desisted from his criminal act before he was killed, it must appear that the criminal act was not so far completed, as to 816 INSUKANCE, IV, (2), (3). render the killing a new and distinct event, -ather than a continuation of the original affray. Cluff ». Mut. Benefit Ins. Co., (13 A ) 95 308. 414. As to the proper instructions to the jury, where the act, in which the insured was engaged when he was killed, would he a crime, unless he acted under a belief which would avoid its criminal character, see Cluff «. Mut. Benefit Ins. Co., 99 317. 415. "Where a policy is conditioned to be void if the insured " shall die by suicide," it is avoided, although at the time of committing the act of self-destruction, the insured was insane, and his act of self-destruction was the direct result of his insanity. Cooper©. Mutual Ins. Co., 102 227. 416. As to the effect of the expression " shall die by his own hand," see Dean «. American Ins. Co., (4 A.) 86 96. 417. Where a policy on the life of a person is issued to another, who has an insurable interest therein, the assignment of the policy to a third person, having no such insurable interest, is valid. Mut. Life Ins. Co. v. Allen, 138 24. 413 Such an assignment, made here, of a policy issued by a foreign insurance company, but delivered here, is governed by our laws. Mut. Life Ins. Co. «. Allen, 138 24. [For general rules as to forfeiture for nonpayment of the premiums, see ante, I, (4)."] 419. The purpose of the statutes relating to forfeiture of life insurance policies, St. 1861, Ch. 186, § 1, (see, now, also, St. 1880, Ch. 232, § 6; P. S., Ch. 119, g 159), is to establish a rule, which shall enable the insured to reap the benefit of the premiums, paid before default on his part, and at the same time secure to the in- surance company the full amount of the pre- miums, which the terms of the policy call for; not to make a new contract between the parties, or any change in the time when the amount of the policy becomes payable. Per Sottle, J., in Carter v. John Han- cock Ins Co., 127 153. 420. Before St. 1877, Ch. 61, § 1; P. S., Ch. 119, § 166 the statute of 1861 applied to foreign insurance companies. Morris v. Penn Ins. Co., 120 503. 421. Where the policy was conditioned to be forfeited, upon nonpayment of a note given for part of the premium, and a note is, in fact, given for part of the first premium, which the policy acknowledges to have been paid in cash, the nonpayment of the note forfeits the policy; and if the net value of the policy is less than the amount of the note, there is nothing to apply, under the statute of 1861, as a single premium of temporary insurance. Pitt v. Berkshire Ins. Co., 100 500. 422. For a case, in many respects similar, where the same ruling was made, " presenting such a complicated, and, in some respects, in- consistent series of contracts, that it would serve no useful purpose to discuss it in detail," see- Bigelow v. State Ass. Ass'n, 123 113. 423. Where an endowment policy upon the life of A, payable to B. if A dies within 10 years, otherwise to A, contains the usual con- dition of forfeiture upon nonpayment of the premium, the expiration of the ten years is equivalent to the death of the assured, as re- gards the question when the policy is payable; and if A survives the ten years, and fails to pay the last premium, he is entitled, under the statute of 1861, to recover the amount of the policy, less the su u due from him to the in- surer with interest. Carter v. John Hancock Ins. Co., 127 153. 424. A certificate, given since the statute of 861, acknowledging the receipt of an annual premium on a policy issued before the statute, does not subject the policy to the provisions of the statute relating to forfeiture. Shaw a. Berkshire Ins. Co., 103 254. C3.) When and to whom the Insurance is payable ; action upon the policy, 425. Under G. S., Ch. 58, §52; P. S., Ch. 119, § 167, (see, also, St. 1864, Ch. 197,) if a policy of life insurance is expressed to be for the benefit of the wife of the insured, her children have no interest in it during her life; and her creditor may reach it by equitable attachment, even during her husband's life, without making the children parties. Troy ». Sargent, 132 408. See, also, Norris v. Mass. Ins. Co., 131 294. 426. Where a policy, issued by a foreign company, recited an insurance upon the life of A, in consideration of premiums paid by his wife, and promised to pay her the sum insured, within 90 days after notice and proof of her husband's death, and to her children, if she should die before her husband; and husband, wife, and children were lost at sea, there being no proof as to who survived; it was held that the interest of the wife was contingent on her surviving her husband, that there was no pre- sumption that either survived the other; and the burden was upon her next of kin to prove the fact. Puller «. Linzee, 135 468. LSee, also. Evidence, IV (5).] 427. Where a policy is expressed to be pay- able to the insured on a day certain, or to his children within sixty days after due notice and proof of loss, the promise to pay the children takes effect, only if the insured dies before the day named; and before that time, the insured has a valuable interest in it, which passes to his assignee in bankruptcy. Brigham v. Home Ins. Co., 131 319. 428. Where a policy is made payable to the wife of the insured, and she dies before him, leaving children, her administrator, upon re- ceiving the insurance after her husband's death, holds it, under the statute, for the benefit of the children, and the husband's administrator has no interest in it. Swan v. Snow, (11 A.) 93 224. 429. A policy expressed, under the statute, to be for the benefit of the widow and children INSUEANCE, IV, (3). 817 of the insured, is not affected by his will, and his executor is liable if be collects it. Gould d, Emerson, 99 154. 430. And if the wife assigns the policy, with the consent of her husband and the insurer, the child is entitled to the money after her death. Knickerbocker Ins. Co. «. Weitz, 99 157. 431. So if the husband assigns it with the insurer's assent; but the assignee, in good faith, is entitled to deduct the amount of the pre- miums subsequently paid by him. Unity Ass. Assoc'n v. Dugan, 118 219. 432. An assignment of a policy, without the consent of the insurer, to one who has no in- terest in the life of the insured, passes no interest, legal or equitable. Stevens v. Warren, 101 564. 433. Where a policy was issued by a mutual insurance company, payable to the wife of the iosured, and assignable with the consent of the company, and providing that the amount in- sured should go to the permanent funds of the company, if the insured died without wife and child, and without having made a valid assign- ment; and the wife and child of the insured died before him, and he assigned one half of the policy, with the company's c.nsent; it was held, that upon his death his administrator could not recover the ether half. Comm. v. Unity Ass; Co., 117 337. 434. Where a policy, payable to the insured, his executors, etc., was assigned by him, and forfeited in the assignee's hands for nonpayme..t of the premium; and afterwards it was assigned hy the latter to another in trust, for the wife of the assured and renewed by him for her benefit, with the consent of the insurer and the insured, and the premiums were subsequently paid by him; it was held, that the administrator of the assured had no \ alid claim to any part of the insurance money. Winchester v. Stebbins. (16 G.) 82 52. 435. A policy effected by the insured upon his own life, and payable "to his heirs or representatives," is not expressed to be for the benefit of any other person, within the statute, but is assets of the insured upon his death; and his oral declarations, after it was effected, that he intended it for the benefit of his son will not create any trust for the latter. Wason v. Colburn, 99 342. 436. Upon a policy payable to the insured, ms executors, etc. and assigned by him, with the insurer's consent, the assignee may maintain an action against the company, although it is expressed to be for the use of the wife and child ot t.:e insured, and he leaves a surviving child: but the plaintiff will hold the proceeds^ when collected in trust for the child, as far as they enure to his benefit under the statute. Burroughs v. State Ass. Co., 97 359. 437. Semble, that the husband of the sister of jne person whose life is insured, who has paid »nffl P ' rer ? lums as a S ent of the insured, has a sufficient interest to maintain an action upon a policy payable to him, and may recover the wnole sum insured, although the policy con- rained a condifon that policies payable to per- sons, not members of the family of the insured, Vol. 1—103 are subject to jproof of interest, and that the insurer is liable only for the amount of such interest. Forbes v, American Ins. Co., (15 G.) 81 249. See, also, Lord v. Dall, 12 115; Campbells N. E. Ins. Co., 98 381. 438. The insurer cannot rely upon want of insurable interest in the plaintiff, where the answer doe , r.ot specify that defence, but denies liability on other grounds. Forbes ». American Ins. Co., (15 G.) 81 249. ' 439. An action upon a policy under seal, whereby the insurer covenants with A, his heirs, etc., to pay to B the sum insured, upon the death of A, cannot be maintained by B. Flynn ». North American Ins Co.. 115 449. 440. And where the promise of the insurer in the policy is to pay to the insured, his heirs, etc., an action upon the policy cannot be main- tained by one for whose benefit it is expressed to be made. Bailey v. New England Ins. Co., 114 177. 441. Where the declaration refers to the policy, without annexing a copy, and does not set up any thing inconsistent with the policy, an objection that there is a variance between the policy and the declaration is untenable. Pierce v. Charter Oak Ins. Co., 138 151. 2. And if the declaration is not demurred to, an exception to the admission of the policy on the ground that it is ambiguous, if read in connection with the declaration, is untenable. Pierce ■». Charter Oak Ins. Co., 138 151. 443. The declaration need not allege facts, which defeat the plaintiff's claim under the special provisions ot the policy. Pierce v. Charter Oak Ins. Co., 138 151. 444. Notice to the insurer of an assignment, and an acknowledgment thereof by him, does not entitle an assignee to maintain the action ill his own name. Pierce t>. Charter Oak Ins. Co., 138 151. 445. Evidence is inadmissible, in defence of an action at law that a different day of pay- ment of the insurance should have been written in the policy. Pierce v. Charter Oak Ins. Co 138 151. 446. Where the insurance is payable if the insured survives a certain day, interest is recov- erable only from the date of the writ, unless the declaration alleges a previous demand. Pierce «. Charter Oak Ins. Co., 138 151. 447. The usual ninety days' clause has no ap- plication to such a provision, and intere t is not payable except as damages for wrongfully with- holding the money. Pierce v. Charter Oak Ins. Co., 138 151. 448. In an action by an assignee, in his own • name, where the superior court erroneously or- dered a verdict for the plaintiff, with interest 818 INSUEANCE, V, (1). from the time when the policy was payable it was held that exceptions must be sustained, unless the plaintiff was allowed by the superior court to amend, by substituting the assignor, and would remit the interest. Pierce v. Charter Oak Ins. Co., 138 151. V. Marine Insurance. [See. also, Shipping.] (1.) The policy; validity; interest and property covered. [See, also, ante, I. (1) As to insurable interest, see ante, I, (3).] 449. A policy of marine insurance, which does not express the commencement and termi- nation of the voyage, is void for uncertainty. Per Sedgwick, J , in Cleveland v. Union Ins. Co.. 8 308. 450. But a policy "at and from Salem," '• around the globe, one or more times, until her return to her port of dischargejn the United States," sufficiently expresses the commence- ment and termination. Cleveland v. Union Ins. Co., 8 308. 451. A ship master's commisions are insura- ble, and are covered by an insurance of his property on board the vessel. Holbrook v. Brown, 2 280. 452. A consignee's expected commissions on a cargo not jet arrived, and upon which he has not made advances, are insurable. Putnam v. Mercantile Ins. Co. (5 Met.) 46 386. 453. Profits are insurable. French v. Hope Ins. Co., (16 P.) 33 397. 454 So is freight. McGaw a. Ocean Ins. Co., (23 P.) 40 405. 455 And one may insure under the name of freight, the safe transportation of his own goods, in his own vessel. Wolcott ». Eagle Ins. Co., (4 P.) 21 429. • 456. But the owner of a cargo who has paid freight in advance, cannot recover upon a policy by which prepaid freight is insured. Minturn «. Warren Ins. Co., (2 A.) 84 86. 457. "Where the insured has received the full amount of his interest in a cargo, and a return premium for overinsurance from prior insur- ers, a policy on a cargo " for whom it may con- cern," is discharged, no other person being shown to be interested. Amory ■». Gilman, 2 1. 458. An insurance upon a voyage in violation of our laws is void; but not upon a voyage pro- hibited by the trade laws of a foreign state, nor on goods, contraband of war, if the facts are known to the underwriter, and the risks are not excepted in the policy; and in either of the two latter cases, if the policy is void as to those particular risks, it is good as to the other risks within it. Richardson v Maine Ins. Co., 6 102; Parker v. Jones, 13 173. 459. An insurance against condemnation for the breach of foreign trade laws, is not within the general words of a policy, unless the voyage is to a place where no legal t.ade can he carried on. Parker v. Jones, 13 173. 460. A policy is not void, although it is to cover conduct which forfeits the insured's bonds to the United States, or by an act of congress gives the crew a claim for double Ward v. Wood, 13 539; Warren v. Manuf'rs' Ins. Co., (13 P.) 30 518. 461. Having on board a vessel, bound to a neutral port, an enemy's license, does not avoid a policy on the voyage. Hayward v. Blake, 12 176. 462. An insurance that a license unfulfilled shall not be destroyed or rendered useless, is not illegal. Perkins v N. E. Ins. Co., 12 214. 463. Where a note was given for the premium on an insurance to the port of discharge, in Europe, not excepting ports " interdicted by the laws of the United States," the insured in an action upon the note, was allowed to prove in avoidance of the note, that the voyage was intended and made to a port interdicted. Russell v. De Grand, 15 35. 464. Where a policy on a belligerent vessel and cargo, sailing with neutral papers, stipu- lated that in case of a capture, the insured should claim the property as neutral; and a capture happened, but such a claim was not made; it was held that the assured could not recover, although the making of such a claim would involve perjury. Coolidge v. Blake, 15 429. 465. A statute, making the president and directors of an insurance company personally liable, on a policy issued when they knew the company to be insolvent, does not vitiate the policy Clark «. Brown, (12 G.) 78 355. 466. Where a vessel is insured for a certain voyage, excepting risks covered by other policies, the policy is good for the voyage, although the first two days thereof were cov- ered by a time policy. Kent «. Manuf'rs' Ins. Co., (18 P.) 35 19. 467. A master has no' authority to procure insurance for the owners. Poster v. United States Ins. Co., (11 P.) 28 85. 468. A part owner of a vessel has no au- thority to procure insurance for the others. Foster o. United States Ins. Co., (11 P.) 28 85; Finney v. Warren Ins. Co., (1 Met.) 42 16; Finney «. Fairhaven Ins. Co., (5 Met.) 46 192. 469. And where a master, who was also part owner, had his own property and property of the owners, on board, and caused insurance to be made "on property on board for the owners of the vessel," it was held that the INSUEANCE, V, (1). 819 policy covered his own joint and separate in- terest, but not, in the absence of authority or ratification, the interest of the others. Foster «. U S. Ins. Co., (11 P.) 28 85. 470. But bringing an action upon the policy in tie names of all is a ratification. Finney v. Fairhaven Ins. Co., (5 Met.) 46 192. [See, also, post, art. 502.] 471. A policy on the owner's interest in the catchings of a whaler covers only the share of the catchings, reserved to the owner, in accord- ance with the lays agreed upon in the shipping articles, without reference to the state of the accounts of the crew with the vessel at the time of the loss. Swift v. Mercantile Ins. Co., 113 287. 472. For the construction of a valued policy on the outfits of a whaler, with a special pro- vision as to the catchings, replacing; the outfits consumed, see Mutual Marine Ins. Co. v. Munro, (7 G.) 73 246. 473. A usage among owners of whalers and underwriters, that a policy on outfits shall cover one quarter of the catchings, is good. Macy v. Whaling Ins. Co.. (9 Met.) 50 354. 474. And where outfits are insured outward, and caterings homeward, the voyage is home- ward as to the catchings as soon as they are taken aboard, although the ship continues its adventure. Lewis t>. Manuf'rs' Ins. Co., 131 364. 475. An open policy upon goods of a specified kind, to be brought in a certain class of ships, within a certain time, and with a rate of pre- mium fixed, will embrace any such goods which may be lost and known to be lost, before they are indorsed upon the policy by the in- sured, although the insurer refuses to indorse Ihem; but where the policy lacks those elements of certainty, the indorsement requires the con- currence of both parties. E. Carver Co. v. Manuf'rs' Ins. Co., (6 G.) 72 214; Hartshorn v. Shoe & L. Dealers' Ins. Co., (15 G.) 81 240. 476. An insurer is not liable for property stowed on deck, without a special provision to that effect, unless it is property which, from its nature, is usually stowed on deck. Taunton Copper Co. v. Merchants' Ins. Co., (22 P.) 39 108. See, also, Wolcott *. Eagle Ins. Co., (4 P.) 21 429. 477. And a general policy on freight will not cover freight to be earned by carrying goods on Adams s. Warren Ins. Co., (22 P.) 39 163. 478. Rg copper is not an article, for the loss oi which an insurer is liable, where it is stowed on deck, merely because of a usage to carry on deck articles not injured by dampness. Taunton Copper Co. v. Merchants' Ins. Co., (22 P.) 39 108. «<9. Insurance on "cargo or freight" is an insurance of either, if the insured has one only at risk; if he has both at risk, it is an insurance of both, in proportion to his interest in each. Faris v. Newburyport Ins. Co., 3 476. 480. An insurance of "freight on board" a vessel means the same as freight of the vessel, and covers the freight which might have been earned, in case of a loss between two inter- mediate ports, for the entire voyage, not exceed- ing the valuation; including the freight for cargo to be taken in at the intermediate port to which the vessel was bound. Robinson t. Manuf'rs' Ins. Co., (1 Met.) 42 143. 481. A policy on goods, to be shipped "be- tween" twospecified days, does not cover goods shipped on either day. Atkins v. Boylston Ins. Co., (5 Met.) 46 439. - 482. Insurance by a master and owner of his " property," on a coasting vessel, covers current bank bills on board, to be used in the coasting business, and includes a loss thereof by a fire on board. Whiton v. Old Colony Ins. Co., (2 Met.) 43 1. 483. "Cargo" of a whaler includes oil and other articles, which are the ordinary products of the voyage: gu., whether it includes outfits. Paddock i>. Franklin Ins. Co., (11 P.) 28 227. 484. An insurance on " cargo " will not cover goods consigned to the insured for sale, belong- ing to a firm of which he is the general agent, and also a creditor, nor his commissions on the sale thereof. Tappan v. Atkinson, 2 365. 485. Cargo or merchandise "on board" covers goods in the ship's boats for the purpose of being reshipped, after they had been landed in the due prosecution of the voyage. Parsons «. Mass. Ins. Co., 6 197. 486. Live animals, the freight of them, and their provender, are not covered by ' cargo ' or "freight;" but coin is covered thereby. Wolcott v. Eagle Ins. Co., (4 P.) 21 429. 487. And where the assured, under a valued policy for $2,500, insuring "cargo or freight," had on board a large number of mules, and certain doubloons, the valuation was regarded as applying to both, and he was allowed to re- cover the proportionate part thereof for the doubloons. Wolcott v. Eagle Ins. Co., (4 P.) 21 429. 488. See, further, as to the effect of the word "cargo," Thwing v. Great Western Ins. Co., 103 401. 489. " Property" will cover articles in which the insured has only an equitable interest, the legal title being in another. Locke v. North American Ins. Co., 13 61. 490. But it will not cover freight Wiggin v. Mercantile Ins. Co., (7 P.) 24 271. 491. Where the cargo was lumber, three fifths of which were to be taken as freight money, it 820 INSUKANCE, V, (2), (3). •was held that a policy on "property" covered this portion of the lumber, but not the freight of the rest of the cargo. Wiggin i). Mercantile Ins. Co., (7 P.) 24 271. 492 An insurance upon an outward cargo, and the "proceeds" thereof in the return cargo, covers a return cargo taken upon credit before the outward cargo was sold, if it appears that the return cargo was a substitute for the out- ward cargo, so that it might fairly be con- sidered as the proceeds thereof. Haven v. Gray, 12 71. (2.) Other Insurance. 493. In case of double insurance, where no special provision is contained in the policy, the insured may recover the entire loss of either in- surer, who may have contribution from the other. Wiggin v. Suffolk Ins. Co., (18 P.) 35 145; Ryder «. Phoenix Ins. Co., 98 185. 494. And if the policies are capable, by their terms, of being appropriated to different risks, the assured may appropriate them as he pleases. Welles . Sumner, 4 56. 506. Or if the insured vessel was unseaworthy when the risk commenced. Comm. Ins. Co. v. Whitney, (1 Met.) 42 21. 507. But where an unseaworthy vessel was insured, and upon a deviation from her voyage was made seaworthy, and afterwards, by an alteration in the policy and for an additional premium, the insurer consented to a further deviation, it was held, that the insurer could recover both premiums. Merchants' Ins. Co. ■». Clapp, (11 P.) 28 56. 508. The insured is entitled to a return of the whole premium paid by him, if the ship was unseaworthy when the insurance was made, but with interest only from the date of the writ. Porter v. Bussey, 1 436. 509. Where the insured had given his note for the premium, and in an action upon the policy, the defendant had a verdict on the ground of unseaworthiness, the court . refused to set aside the verdict, so as to allow a recovery for the premium, on the ground that he might defend an action on the note. Penniman v. Tucker, 1 1 66. INSURANCE, V, (3), (4). 821 510 In an action upon the policy, where the nremium has been paid, and the declaiation contains a count for money had and received, if the defendant succeeds upon the ground that the policy did not attach, the plaintiff may have judgment for the return of the premium. Ryder v. Phoenix Ins. Co., 98 185. See aho, Dumas v. Jones, 4 647; Fos- ter v. U. S. Ins. Co, (11 P.) 28 85. 511. "Where the policy acknowledges the receipt of the premium, and the insured has a right to a return thereof, he may recover it upon a money count, although he has given his negotiable note therefor, which is unpaid. Hemmenway «. Bradford, 14 121. 512. The insured can recover back the pre- mium, where the goods insured were not shipped. Toppan v. Atkinson, 2 365. 513. So where his interest falls short of the_ interest insured, as where a vessel of which he' owns but one half, is insured to him only. Fbney v. Warren Ins. Co., (1 Met.) 42 16. 514. But he cannot recover back the pre- mium on a policy void through his own fraud. Hoyt v. Gilman, 8 336. See, also, Friesmuth v. Agawam Ins. Co., (10 C.) 64 587. 515. Where a ship was insured until her arrival, at four and one half per cent, per annum, and pro rata for a longer or shorter period, hut warranting two and one ha.f per cent, for six months; and she was captured just before the expiration of the six months, and after proof of detention for ninety days, accord- ing to the policy, was abandoned; it was held that the abandonment related back to the cap- ture, and the underwriters were entitled to six - months premium only. Lovering «. Mercantile Ins. Co., (12 P.) 29 348. 516. Upon another time policy of the same character, it was held that where a compromise "was made between the master and the captors, the premium was due from the commencement •of the risk, to the time of the compromise. Wood v. N. E. Ins. Co., 14 31. 517. An insurance broker, who effects insur- ance, may recover the premium in his own name. Taylor e, Lowell, 3 331. 518. Where the policy is assigned with the insurer's consent, the assignee is liable for the premium note, and the assignor is discharged. Cleveland v. Clap, 5 201. 519. Where an insurance was effected for $9,0U0, on a ship valued at $18,000, at a pre- mium of 45 per cent., the insured owning in fa t one third, and there was a total loss, he was allowed to recover the fu'l amount, on the ground that he intended to insure the premium. Mayo v Maine Ins. Co., 12 259. 520. A stipulation in a policy, that in case of loss, the premium, if unpaid, shall be deducted, is not a privilege given to the insurer, but binds poth parties, and the insured, when sued upon the premium note, is entitled to deduct a loss. Columbian Ins. Co. v. Bean, 113 541. 521. Such a stipulation provides for the mutual allowance of loss and premium, by way of recoupment and deduction, n' t of technical set off; and if the defendant fails to claim it in his answer, he cannot have the benefit of it by filing a declaration in set off. Union Ins. Co. v. Howts, 124 470. See, also, Livermore v. Newburyport Ins. Co., 2 232; Dodge v. Union Ins. Co., 17 471; Wiggin v. Suffolk Ins. Co., (18 P.) 35 145; St. Louis Ins. Co. v. Homer, (9 Met.) 50 39; Warren v. Franklin Ins. Co., 104 518. 522. Where a policy containing a stipulation that the premium note, and all sums due from the insured, shall be deducted, also prohibits an assignment without the consent of the insurer, and the latter's assent to an assignment reserves all rights expressed in the policy; the right of deduction, as between the insurer and the assignor, is unimpaired by the assignment. Wiggin v. Suffolk Ins. Co., (18 P.) 35 145; Wiggin v. American Ins. Co., (18 P.) 35 158. 523. Under the stipulation in question, prem- iums due upon other policies from the insured, may be set off by the insurer, unless they have been assigned with his consent. Cleveland i>. Clap, 5 201; Comm. v. Hational Ins. Co., 113 514. 524. Where assignees in insolvency have guarantied the payment of the premium note, and taken an agreement from the insurer, con- tinuing (he risk, for their benefit, the insurer is no longer entitled, under such stipulation, to deduct for premium notes of the insolvent, given for other policies. Tripp v. Pacific Ins. Co., (7 A.) 89 230. (4.) Assignment of tlie policy or property Insured. [See, also, ante, arts. 518, 522 to 524.] 525. Where the policy does not contain a re- strictive clause, an assignment thereof, without notice to the insurer, passes to the assignee an equitable interest, which he can enforce in case of a loss, occurring either before or after the assignment. Wakefield v. Martin, 3 558; Cleveland v. Clap, 5 201; Minturn v. Manuf'rs' Ins. Co., (10 G.) 76 501. 526. Where it contains such a restrictive clause, this indorsement thereupon, " Pay, un- der the within policy, to A or ordtr," is only an order to pay A the amount of any loss, not an assignment; and the insurer's assent thereto is not an assent to an assignment of the policy itself. Minturn v. Manuf'rs' Ins. Co., (10 6.) 76 501. 527. Where the policy does not contain a re- strictive clause against a transfer of the prop- erty insured, an assignment thereof, absolute in form, terminates (he policy, although in- tended by the parties only as a pledge or security. _ H _ Carroll ». Boston Ins. Co , 8 515; Minturn v. Manuf'rs' Ins. Co., (10 G.) 76 501. 822 INSUKANCE, V. (4), (5). 528. Aliter, where the assignee gave hack a ■written agreement to apply the proceeds, to pay certain notes and obligations of the assignor Gordon v Mass. Ins. Co., (2 P.) 19 249. 529. "Where a policy to the equitable owner of a vessel is conditioned to be void in case of a sale, assignment, transfer, or pledge of the vessel, without the insurer's assent, a mortgage of the vessel for repairs, given without such consent, or that of the insured, by one holding the legal title, and taken in good faith by the mortgagee, avoids the policy. Atherton u. Phoenix Ins Co , 109 32. 530. "Where the plaintiff and L were joint owaers of a vessel, and the plaintiff procured a policy upon her, for whom it might concern, containing no restrictive clause against a trans- fer, and subsequently the plaintiff bought L's share, and received a bill of sale thereof, it was held that the plaintiff was entitled to recover the entire amount of a subsequent loss, to his own use. Martin •». Fishing Ins. Co., (20 P.) 37 389. 531. "Where a policy, containing a restrictive clause against an assignment, etc., thereof, without the insurer's consent, was issued to A, payable in case of loss to B, a creditor, who procured it as A's agent, and retained it till after the loss, and whose debt was subsequently paid; and before the loss A made an assignment of all his property, including the vessel insured, and " all policies of insurance," in trust for his creditors, the surplus to be paid to him, to which the insurer did not assent; and there was a surplus, without resorting to the policy ; it was held that the policy was not included in the as- signment; and that the plaintiff had an insurable interest after the assignment, which was equal to the whole value of the vessel. Lazarus ■». Comm. Ins. Co., (19 P.) 36 81. (5./ Seaworthiness; evidence thereupon. [See, also, an'.e, art. 606 ; and post, V, (15).] 532. In every voyage policy, there is an implied warranty of seaworthiness; but if the vessel is then in port, the warranty is merely that she is then in a condition to afford reason- able security, and that she shall be seaworthy when she leaves If the warranty is broken the policy does not attach, and the premium is returnable. Porter v. Bussey, 1 436; Taylor v. Lowell, 3 331; Merchants' Ins. Co. v. Clapp, (11 P.) 28 56; Paddock v. Frank- lin Ins. Co , (11 P.) 28 227. 533. But if the vessel is at sea, there is no im- plied warranty that she is then seaworthy: the warranty is complied with if she is made sea- worthy, at any time before the loss. Capen ». "Washington Ins. Co., (12 C.) 66 517; Macy v. Mutual Ins. Co., (12 G.) 78 497. 534. And where a cargo was insured in an unseaworthy vessel then at sea, and she reached an intermediate port and was there condemned, and the master thereupon transshipped the cargo at the risk of the insurers, and upon that voyage the cargo was lost, it was held that the insurers were liable. Macy ». Mutual Ins. Co., (12 G.) 78 497; Pierce e. Columbian Ins. Co., (14 A.) 96 320. 535. In a time policy upon a vessel in a foreign port, where repairs can be made, there is an implied warranty of seaworthiness, both for port and on setting out therefrom. Hoxie v. Pacific Ins. Co., (7 A.) 89 211. 536. For a full discussion of the doctrine of seaworthiness, as applied to time policies, see Hoxie v. Pacific Ins. Co., (7 A.) 89 211. 537. Seaworthiness applies to the intended uses and purposes, to which the vessel is to be applied Paddock v. Franklin Ins. Co., (11 P) 28 227; Swift «. Union Ins. Co., 122 573 538. Negligence and want of skill in stowing the cargo may render a vessel unseaworthy; that question is for the jury. Chase v. Eagle Ins. Co., (5 P.) 22 51. 539. Failure to comply with an act of con' gress, requiring a certain quantity of water to be on. board, and forfeiting double wages to the crew in case of their being on short allowance, does not render a vessel unseaworthy, or shift to the insured the burden of proving her sea- worthy. Warren v. Manuf'rs' Ins. Co., (13 P.) 30 518; Deshon v. Merchants' Ins. Co., (11 Met.) 52 199. 540. Upon the issue of seaworthiness at a particular time, the question whether a vessel would be seaworthy, with pumps in the state in which hers were found to be upon the com- pletion of the voyage, is immaterial. Parsons ». Manuf'rs' Ins. Co., (16 G.) 82 463. 541. If a vessel becomes unseaworthy during the voyage, the insurers are discharged, if the master might have repa'red the defect, and the loss occurs in consequence thereof; otherwise not- Paddock v. Franklin Ins. Co., (11 P.) 28 227; Deblois v. Ocean Ins. Co. , (16 P.) 33 303; Starbuck v, N. E. Ins. Co., (19 P.) 36 198; Capen v. Washington Ins. Co., (12 C.) 66 517; Swift v. Union Ins. Co., 122 573. 542. A vessel which departs with officers and a crew competent for the voyage, does not become unseaworthy by the master's becoming incompetent to command, at a foreign port; and although in such a case the mate ought to take command, yet if he omits so to do, and the vessel is lost through the master's incapacity, the insurer is not discharged. Copeland ». N E. Ins. Co.,, (2 Met.) 3 432. 543. If the vessel, during her voyage, re- ceives an injury from the perils of the seas, which causes her to founder, but meanwhile she has put into a port where repairs might have been made; the insurer is liable, unless the master had reasonable cause to believe that the INSUEANCE, V, (5), (6). 823 defect existed, and that she could not safely reach home unless it was repaired. Starbuck ». N. E. Ins. Co., (19 P.) 36 198. 544. The burden of proving unseaworthiness is upon the insurer. Taylor v. Lowell, 3 331; Paddock v. Franklin Ins. Co., (11 P.) 28 327. 545. But if a ship is lost, without any appa- rent sea damage or accident, sufficient to destroy a sound vessel, there is a presumption that the loss proceeded from inherent weakness and decay, for which the insurer is not liable; and the burden of proof is upon the insured, to show that it arose from a peril insured against. Swift v. Union Ins. Co., 122 573. See, also, Paddock v. Pranklin Ins. Co., (UP.) 28 227, Paddock v. Commercial Ins. Co., 104 521. 546. And where, upon such an issue, the in- surer, the plaintiff, called a witness to prove that the vessel was seaworthy when she left port, the defendant cannot ask the witness, on cross examination, how old she was. Swift v. Union Ins. Co., 122 573. 547. If the vessel was seaworthy when the policy attached, it will be presumed that she continued to be so during the time of the risk. Martin v. Fishing Ins. Co., (20 P.) 37 389. 548. Upon the trial, the master may be asked what caused the vessel to leak, whether as a matter of opinion or as a matter of fact. Parsons v. Manufrs' Ins Co., (16 G) 82 463. ■ J 549. As to the competency of the certificate of a marine surveyor and inspector, see Perkins t. Augusta Ins. Co., (10 G.) 76 312; cited, post, art. 877. 550. As to the competency of a survey see Hall v. Franklin Ins. Co., (9 P.) 26 466; and other cases cited, post, arts. 880 to 883. See, also, post, art. 712. (6.) Other warranties ; representation concealment; fraud. 551. An express warranty in a policy is a condition precedent, the burden of proving per- formance of which rests upon the insured, wither it is of an affirmative or negative char- McLoon v. Com'l Ins. Co., 100 472- McLoon «. Mercantile Ins. Co., 100 474, note. « J 5 ?' u is t0 he strf ctly complied with accord- ug to its terms, whether such strictness oper- ates m favor of the insurer or the insured McLoon v. Com'l Ins. Co., 100 472. 8 h»n 3: h^ COrdin8 ; 1 J' a warr anty that the master ma,w 4 a ce . rtl . flcat e of the American Ship- masters Association, is complied with if he d«*J7* a certificat e, although he has ne- ^s renni! ^ 00 ^ 6 the yearly indorsement of it; as required by the rules of the association. McLoon v. Com'l Ins. Co 100 472. ticuW i£? Hc3 ^ pon S° ods at and f rom a P a r- ncular port, without more, does not create a warranty that the goods shall be loaded at that particular port. Silloway v. Neptune Ins. Co., (12 G.) 78 73; Clarke. Higgins, 132 586. 555. So held*, where the insured had no knowledge of the existence of such a clause in the policy. Clark ij. Higgins, 132 586. 556. So where the port of lading is left blank in an open policy, and is inserted in a certificate of indorsement upon the policy, issued by the agent of the insurer. Clark v. Higgins, 132 586. 557. Any breach of a warranty will defeat a policy, without regard to the question of its ma- teriality to the risk. Lewis ■». Thatcher 15 431; Odiorne v. N. E. Ins. Co.. lOl 551; Thwing v. Great "Western Ins Co, 103 401; Whiton 1). Albany Ins. Co., 109 24. 558. And oral testimony is not competent to create a warranty, as to which the policy is silent. "Whitney v. Haven, 13 172. 559. Or to contradict or explain a warranty in the policy. Odiorne ». New England Ins. Co. , 101 551. 560. Or to show a usage among urderwriters, that its violation does not avoid the policy. Odiorne v. N. E. Ins. Co., 101 551. 561. A description of the vessel in the policy as being of a particular nationality, is a war- ranty on the part of the insured that she is of that nationality. Higgins ». Livermore, 14 106; Ath- erton v. Brown, 14 152. 562. As to neutrality generally, see Stacker v. Merrimack Ins. Co., 6 220; Cleveland «. Union Ins. Co., 8 308. 563. A clause "prohibiting" the vessel from certain ports or waters, is a warranty that the vessel shall not enter them. Odiorne « N. E. Ins. Co., 101 551; "Whiton v. Albany Ins. Co., 109 24. 564. A warranty ' not to load more than her registered tonnage," with either of certain arti- cles, including coal, is not broken by taking an additional amount of coal for dunnage, although freight is received for the transportation thereof. Thwing o. Great "W. Ins. Co., 103 401 • 565. A warranty " not to carry grain in bulk across the Atlantic " is broken, if, at the time when the policy takes effect, the vessel is just entering the harbor with such a cargo, which she has carried across the Atlantic. Sawyer «. Coasters' Ins. Co., (6 G.) 72 221. 566. A warranty that the vessel shall be free from capture, seizure, or detention, includes capture by a cruiser of the Confederate States. Dole v. N. E. Ins. Co., (6 A ) 88 373. 567. But not a mutinous taking possession by the mariners Greene v. Pacific Ins. Co., (9 A.) 91 217. 824: INSURANCE, V, (6); (7), (A). 568. Upon a warranty not to carry petro- leum, the insured must prove that the article carried was known in commerce as a d fferent article, from that which is bought and sold as petroleum; and that question is for the jury. McLoon ». Mercantile Ins. Co., 474, note. LOO 569. A misrepresentation of a material fact, whereby the insurer is led into error, avoids the policy, whether it was made by the insured or his agent, and whether it was intentionally or unintentionally false. Sawyer v. Coasters' Ins. Co., (6 G.) 72 221. See, also, Bryant v. Ocean Ins. Co., (32 P.) 39 200. 570. A representation that a vessel has ar- rived at her port, and is clear of her cargo, when she is just enlering the harbor, is material. Sawyer v. Coasters' Ins. Co., (6 G.) 72 221. 571. For other instances of material repre- sentations, see A'sopfl. Coit, 12 40; Ellery v. N. E. Ins. Co., (8 P) 25 14. 572. Matters relating to the warranty of sea- worthiness, need not be represented, except in answer to inquiries; and the burden of proving misrepresentation in the answers is upon the insurer. Silloway v. Neptune Ins. Co., (12 G.) 78 73. 573. A mere statement of an intention or ex- pectation, unless fraudulent, is not a misrepre- sentation. Bryant » Ocean Ins. Co., (22 P.) 39 200 See, also, Rice ». New England Ins. Co., (4 P.) 21 439. 574. Nor is a true statement that the insured was "informed" as to a material matter, although the information was incorrect. Rice «. New England Ins. Co., (4 P.) 21 439. 575 Accepting a policy 5 providing that the insurer shall not be liable for damages to the sheathing of a vessel, is not a warranty or a representation that she is Fheathed. Martin o. Pishing Ins. Co., (20 P.) 37 389. 576. Concealment of a fact material to the risk, known to the insured, but not known to the insurer, avoids a policy, although no inquiry is made respecting the same. Stacker ®. Merrimack Ins. Co., 6 220; Green «. Merchants' Ins. Co., (10 P.; 27 402. See, also, Oliver v. Greene, 3 133. 577. The burden of proving the concealment, and the materiality of the fact concealed, is upon the insurer, and both questions are for the jury. Fiske «. N. E. Ins. Co., (15 P.) 32 310; Fletcher v. Comm. Ins. Co., (18 P.) 35 419. 578. But where the court directed a nonsuit, and the concealment was such that the court would have set aside a verdict for the plaintiff, the nonsuit was allowed to stand. Hoyt v. Gilman, 8 336. .<878. A designed concealment of the nature of the interest of the insured avoids the policy. Locke ».• North Am. Ins. Co., 13 61. 580. But in general, such a concealment will not be considered proved, if no inquiry was made as to the title. Locke v. North Am. Ins. Co., 13 61; Bixby®. Franklin Ins. Co., (8 P.) 25 86. See, also, Bartlet v. Walter, 13 267; Curry ».. Comm. Ins. Co., (10 P.) 27 535. 581. If the fact concealed was material, its concealment is not excused by the supposition of the insured that is was not material. Curry v. Comm Ins Co., (10 P ) 27 535. 582. A letter containing information, which turned out to be false, but would have in- fluenced the insurer, if concealed, avoids the policy. Hoyt ». Gilman, 8 336. 583. The time when a vessel sailed is not of itself material; but if there was a severe storm, immediately afterwards, or she is a missing ship, a concealment of the time becomes Tn fl f i^t*i fl 1 Fiske «. N. E. Ins. Co., (15 P.) 32 310. 584. A stipulation in a charter party, that the vessel shall carry timber both on and under deck, is not material to a general policy on her freight, unless special inquiry is made. Adams «. Warren Ins. Co., (2 J P.) 39 163. 585. Where a ship was insured from St. John's to Kingston, and a market in Jamaica, with orders in a certain contingency, which occured, to 'proceed to Port Maria, before going to Kingston, it was held th.t the concealment of these orders was not material. Houston a. N. E. Ins. Co., (5 P.) 22 89. 586. Where the insured, in making an aban- donment, in consequence of information re- ceived in a letter, communicates as much of the letter as he deems material, expressly stating that it is an extract, and the insurer does not call for the whole, there is no c nceal- ment which affects the validity of the aban- donment. Lovering «. Mercantile Ins. Co., (12 P.) 29 348. 587. It is no defence to a note, given as a com- promise by the insurer to a mortgagee insured on a vessel, that she was lost by the fraud of the mortgagor, since discovered. Barlow «. Ocean Ins. Co., (4 Met.) 45 270. 588. And a payment upon an execution can- not be recovered back by the insurer, although he has since discovered that the action might have been successfully defended for fraud by the insured. Homer v. Fish, (1 P.) 18 435. (7.) Perils Insured against or excepted. [See, also, ante, V, (1); V, (5).] (A.) In general. 589. For a definition of the expression " perils of the sea," see INSUKANCE, V, (7), (A), (B). 825 Per Bigelow, Ch. J. in Gage v. Tirrell, (9 A.) 91 399. 590. Underwriters against perils of the sea, and other usual perils, do not assume the risk of ordinary perils incident to the course of the voyage, nor of damages arising from in- trinsic qualities or defects of the thing insured, including -waste from ordinary leakage of liquors. Cory e. Boylston Ins. Co., 107 140. 591. For an enumeration of other causes of injury, which are not within a policy against usual perils, see IVLrtin v. Salem Ins. Co., 2 420. 592 If the jury is satisfied that a ship, sinking in port and while at anc.or, from a leak, was seaworthy, they may find that she was lost by a peril insured against, although ' they may be unable to ascertain precisely what the peril was. Per Endicott, J., in Swift v. Union Ins. Co., 122 573. * 593. Where the policy covers not only perils of the sea, but "all other losses and misfor- tunes," the insurer is liable for an accident happening to the vessel, in the course of neces- sary repairs, while upon a railway, or in dock, or hove down upon a beach, or by a wharf. Per Endicott, J., in Swift v. Union Ins. Co., 122 573. See, also, Ellerv ». N. E. Ins. Co., (8 P.) 25 14. 594. An insurance against " total loss only," even if in a time policy, covers a constructive as well as an actual total loss. Heebner v. Eagle Ins. Co., (10 G.) 76 181. See, also, Greene v. Pacific Ins. Co., (9 A.) 91 217; Snow «. Union Ins. Co., 119 592. 595. Where a policy on a steamer exempts the insurer from liability for breaking cf machinery, unless occasioned by stranding, if the machinety is first injured by a peril of the sea, and the sieamer is afterwards stranded, the insurer is liable only for such damages to the machinery, as the insured definitely proves was occasioned by the stranding. Heebner v. Eagle Ins. Co., (10 G.) 76 131. 596. The insurer of goods in the hold is Hable for damage, caused by sea water shipping during an extraordinary stress of weather, and steam and gas generated thereby; but not for damage from the ordinary dampness of the Md, although aggravated in consequence of such stress of weather. Baker a. Manufrs' Ins. Co., (12 G.) 78 603. 597. But where a policy on wine in cases expressly excepts leakage, and damage by dampness, unless caused by actual contact of sea water, occasioned by sea perils, the insurer is not liable for loss of wine, escaped from Dottles still corked, or forinju.y by dampness or change of flavor, to cases with which the sea water had not actually come in contact, although the injury was caused by steam and dampness, gene-ated in the hold, by sea water shipped during a stress of weather. Cory ». Boylston Ins. Co., 107 120. 598. The insurer is not liable for a hawser ^overboard, which was stowed in a boat on Vol. 1—104 Brooks ( 259. Oriental Ins. Co., (7 P ) 24 599. But he is liable for the loss of a boat from the stern davits at sea, unless it is proved that the boat was improperly carried there or slung. Hall v. Ocean Ins. Co., (21 P,) 38 472. 600. A special clause in the policy, containing an exception from the ribks covered, is to be con- strued strictly, and most strongly against the insurer. Ti dor v. N. E. Ins. Co., (12 C.) 66 554; Prince ». Equitable S. Ins. Co., (12 G.) 78 527. See, also, Dole v. N. E. Ins. Co., (6 A.) 88 373; Parkhurst «. Glou- cester Ins. Co., 100 301 601. An exception in a policy upon a cargo of ice, from liability for "melting in conse- quence of putting into port," does not apply to a loss from melting, where, in consequence of leaking, the vessel put into a port in distress, and the cargo was necessarily unloaded to re- pair her. Tudor v. N. E. Ins. Co., (12 C.) 66 554. 602. Where the policy contained an exception of a partial loss upon cargo, unless by strand- ing and bilging, and the vessel was thrown upon her beam ends, and, in consequence thereof, the seams opened and let in water, but there was no fracture of her bottom, it was held, that this was not a bilging. Ellery ». Merchants' Ins. Co., .3 P.) 20 46. 603. The insurer is liable for goods jettisoned, although the insured has not required contribu- tion from the other interests benefited Forbes v. Manufacturers' Ins. Co , (1 G.) 67 371. (B.) Seizure; capture ; detention. 604. These words, and the expression re- straints and detainments of princes 'do not include seizure in consequence of the violation of the laws of a foreign country, unless it was understood that the voyage was illicit. Richardson v. Maine Ins. Co , 6 102; Higginson ». Pomeroy, 11 104, Archi- bald v. Mercantile Ins. Co., (3 P ) 20 70. 605. And it is immaterial that the insurer did not know that the voyage was illicit by the for- eign law. Archibald ». Mercantile Ins. Co., (3 P.) 20 70. 606. They do not include a detention or an abandonment of the voyage, for fear of cap- ture, where there was no actual taking of pos- session, or application of hostile force. Bichardson ■». Maine Ins. Co., 6 102; Brewer i>. Union Ins. Co., 12 170. 607. The word " capture," does not merely signify a forcible taking by a belligerent power, or by the authority or act of a government: it includes any unlawful taking by pirates, or otherwise. Dole v. N. E. Ins. Co.. (6 A.) 88 373. 826 INSUEANCE, V, (1), (B), (C), (D). 608. Thus where the policy contained a war- ranty that the vessel should be free from cap- ture, it was held, that the insurer's liability ceased upon the capture of the vessel by a con- federate cruiser, so that he was not liable for the burning of the vessel immediately after- wards. Dole v. N. E. Ins. Co., (6 A.) 88 373. 609. A capture by a belligerent, while the ves- sel was proceeding to a blockaded port, the master having had no warning of the blockade, be ng ignorant of the war, and having no goods on board which were contraband of war, is within the ordinary insurance against capture. Lovering ». Mercantile Ins. Co., (12 P.) 29 348. 610. Goods lawfully landed at the port of destination, and in the process of reshipment, for sufficient cause, which were seized while in the boats of the ship for that purpose, either by the orders of a prince, or by assailing thieves, are regarded as being on board, and are covered by an insurance against seizure and detention. Parsons v. Mass. Ins. Co., 6 197. 611. The wrongful seizure and sale of a cargo, by a consul of the United States, is not within a clause of a policy insuring against the acts of rioters and assailing thieves. Paddock v. Com'l Ins. Co., (2 A.) 84 93. 612. "Where the policy excepts loss from any violation of " existing regulations" of a belliger- ent, the insurer is liable for a loss arising from a violation of a decree subsequently passed. Wood v. ST. E. Ins. Co., 14 31. 613. Where, after capture and abandonment, the vessel was restored to the ostensible owners, who took her upon another voyage without authority from the real owner, it was held that the underwriters were not liable for the loss. Smith v. Touro, 14 112. 614. Where goods insured were seized by a foreign government, on the ground of an intent to carry on a traffic in violation of its laws, the intent not being proved, and the insurer being presumed to know the risks of the voyage, it was held that he was liable for the loss. Pollock v. Babcock, 6 234. 6J.5. Where the capture of the vessel is caused by the master's negligence in 'leaving the ship's papers ashore, ihe insurer is not liable. Cleveland «. Union Ins. Co.. 8 308. 616. A rescue of a neutral ship from a bel- ligerent is a breach of neutrality, which exoner- ates the insurer, unless the belligerent has omit- ted to make known his character and the cause of detention. McLellanu. Maine Ins. Co., 12 246. See, also, Robinson v. Jones, 8 536. 617. Where a vessel puts into port in distress, and is there seized, the insurer is not liable un- der a policy exempting him from loss by cap- ture and condemnation. Rice v. Homer, 12 229, 618. As to the effect of the arrest of a vessel by a belligerent cruiser, and the indorsement by h.m of the license, so as to render it useless for another vess n l, where the owners had agreed to return it to the insured, so that he could i'se it for another vessel, see Perkins v. N. E. Ins. Co., 12 214. 619. A reasonable compromise by a super- cargo to free the vessal from detention, after capture, by giving up part of her cargo, binds the insurer. Welles v. Gray, lO 42. 620. Where, however, the insured stipulated, in cjse of capture, to claim and prosecute until condemnation in the high court of admirals, or acquittal, the insurer to contribute to the ex- penses, and he f iled to make a claim or prose- cute an appeal, insisting that the insurer should advance the expenses, it was held that the in- surer was not liable. Thatcher v. Bellows, 13 111. (O.) Loss of freight. 621. If a vessel is lost on her voyage to a port, where a cargo is waiting, which the owner had contracted to transport, he can recover, ♦ under a policy on her freight, the earnings which she would have made by the transport- ation. Adams v. Warren Ins. Co., (22 P.) 39 163. 622. The insurer of a cargo is liable for in- crease of freight, arising from a peril insured against. Dodge v. Union Ins. Co., 17 471. 623. He is not liable for freight insured, if the owner has lost the freight by his own act in giving up the voyage. Clark v. Mass. Ins. Co., (2 P.) 19 104. 624. If the vessel is injured, and the insured gives up the voyage, when he might have de- tained the cargo, and made the repairs, he is deemed to have lost the freight by his own act. Clark v. Mass. Ins. Co., (2 P.) 19 104. 625. So where part of the cargo is destroyed and the ship is injured, and the master returns to the port of departure, and restores to the shipper the sound part of the cargo, the insurer of the freight is liable only for loss of freight on the part destroyed. McGaw v. Ocean Ins. Co., (23 P.) 40 405. 626. Where the ship is detained during the voyage, but afterwards proceeds and earns full freight, an insurer of the freight is not liable. Mayo ». Maine Ins. Co., 4 374. 627. An insurer of freight is liable, where there is a constructive total loss, followed by an abandonment. Coolidge «. Gloucester Ins. Co. 15 341; McGaw «. Ocean Ins. Co., (23 P.) 40 405. (D.) Barratry. [ As to what is barratry, see Barratry (Maritimb Law). As to a constructive total loss, occurred by barratry, see post, V, (i0).l 628. Where the master of a commercial ship takes a commission of marque, and takes in an INSUKANCE, V, (7), (D), (E); (8). 827 armament and men, with the owner's consent, a shipper of goods insured cannot recover, on the ground that the deviation was barratrous. Wiggin v. Amory, 14 1. 629. The mate of a vessel, who has insured goods on hoard, can recover tor barratry of the mariners by t jef t. Stone v. National Ins. Co., (19 P.) 36 34. 630. A policy insuring against the usual risks, covers barratry of the master or mariners. Parkhurst v. Gloucester Ins. Co., lOO 301. 631. The insurer is liable for barratry, al- though the insured is the owner of the vessel, and has the appointment of the master and mariners. Parkhurst?). Gloucester Ins. Co., lOO 301. See, also, Nelson v. Suffolk Ins. Co., (8 C.) 62 477; Wilson v. General M. Ins. Co., (13 C.) 66 360. 632. A usage of marine underwriters at Bos- ton, to except barratry where the insured is the owner, will not import such an exception by implication into a policy underwritten at Gloucester. Parkhurst v. Gloucester Ins. Co., 100 301. 633. A policy covering barratry does not cover damages, arising from the delay of the vessel, and the ultimate loss of the voyage, caused by the master's barratry, in selling por- tions of the ship's tackle, apparel, furniture, supplies, and outfits. Lawton o. Sun Ins. Co., (2 C.) 56 500. (E.) Collision. 634. Where a policy is signed in New York, by the officers of an insurance company there, and delivered, and the premium note therefor given, in Boston, it is to be interpreted by our laws, and covers a sum paid by the insured vessel to another vessel, for damages by a col- lision; and evidence of usage at New York, or at Boston, is not admissible to control that interpretation. Thwing e. Great W. Ins. Co., Ill 93. 635. That the insurer is liable for a sum so t>ai(L, even if the collision was caused by the negligence of the vessel insured, see Nelson t>. Suffolk Ins. Co., (8 C.) 62 477; Walker «. Boston Ins. Co., (14 G.) 80 288; Blanchard v. Equitable S. Ins. Co., (12 A.) 94 386; Thwing v. Great W. Ins. Co., Ill 93. 636. In an action to recover such a sum, if no notice was given to the insurers before the Beginning of the action, interest can be recov- ered only from the date of the writ. Thwing®. Great W. Ins. Co., Ill yd. 637. The decree of a foreign court of admi- ralty, holding the vessel insured liable for such thF!' renders the insurers liable, although "»ey nad no notice of the proceedings there, if the question was litigated in good faith, and after the decree, the amount of damages fairly adjusted by the owners. Thwing v. Great W. Ins. Co., Ill (8.) Beginning and end of risk. tSee, also, ante, V, (1) smdpoat, V, (9).] 638. A policy on " cargo, lost or not lost, on board of a ship now on a whaling voyage," etc., relates back to the beginning of the voyage, and covers a loss anterior to the date of the policy, after any oil was taken on board. Paddock v. Franklin Ins. Co., (11 P.) 28 227. 639. Where freight was insured in New York for a voyage from the St. John's Kiver, in Florida, to Charlestown, and the cargo was ready for her at the St. John's, but she was lost on her way thither from New York, it was held that the insurer was liable for the freight which she would have earned. Adams v. Warren Ins. Co., (22 P.) 39 163. See, also, Robinson v. Manuf'rs' Ins. Co., (1 Met.) 42 143. 640. A policy on a vessel, to take effect as soon as she is water-borne from A, with liberty to stop at B, and thence on a certain voyage, is binding if she is described as "building" at A, and is, in fact, so far completed, that she can be towed to B, where it is the custom to tow vessels launched, in order to fit them for sea. Cobb v. N. E. Ins. Co., (6 G.) 72 192. 641. A time policy, "commencing the risk at Barbados, on the 7th December, 1810, at noon," where in fact the vessel left the port on the 6th of December, and was at sea on the 7th, and was lost within the year, renders the insurer liable. Manly v. United F. & M. Ins. Co., 9 85. See, also, Martin v. Fishing Ins. Co., (20 P.) 37 389. 642. Where a policy was made for a voyage from Boston to Charleston, providing that if prior insurance had been made, the insurer should be chargeable only pro rata, and the prior insurance expired after the vessel left Boston, it was field that the second policy took full effect upon the expiration of the first, while the vessel was at sea. Kent v. Manuf'rs' Ins. Co., (18 P.) 35 19. See, also, Cleveland v. Fettyplace, 3 392. , 643. Where a policy on a cargo is evidently in- tended to protect it, as long as it continues out- ward cargo, and a second policy is made upon the return cargo, and merchandise is shirped at a port for the return voyage, the first policy ends and the second attaches at once, as to that portion of the cargo, although part of the out- ward cargo is yet to be transported to, and part of the return cargo is to be received at, another port, before the home voyage begins. Cleveland v. Fettyplace, 3 392. 644. A vessel is "at sea," or " on her pas- sage," within the meaning of a time policy, where, before arriving at her port of destina- 828 MSUEANCE, V, (8). tion, she is carried into another port by over- whelming force, against her master's ■will. Wood v. New England Ins. Co., 14 31. 645. Or where she has left her port of lading, and dropped down the straits a few miles lo pursue her voyage, and has there been obliged by a head wind to anchor. Bowen «. Hope & M. Ins. Co.', (20 P.) 37 275; Bowen v. Hope & M. Ins. Co., (12 G.) 78 512, note. 646. But not where she is anchored in an open roadstead, for the purpose of taking in her cargo. Cole v. Union Ins. Co., (12 G.) 78 501. 647. Nor where she has reached an interme- diate port into which she has put, not for orders merely, but to obtain the necessary clearance, water, and crew, for her further voyage, with none of which she had been supplied. Washington Ins. Co. «. White, 103 238. 648. A vessel has arrived at her "port of destination," within the meaning of a time policy, when she arrives at a place where she is sent to take in cargo, although it is not a legal port, and not her final destination. Gookin v. N. E. Ins. Co., (12 G.) 78 501. 649. Or where she is chartere 1 to go to one port, there to receive orders which would ind- cate to her, within 24 hours, whether to discharge there or to go on to another port, and she has arrived at the first port, and 24 hours have elapsed without her receiving orders. Wales v. China Ins. Co., (8 A.) 90 380. 650. An insurance " from Norfolk to Salem or Boston," terminates on the arrival cf the vessel at Salem, without a previous election of Boston as the port of destination, although she at once receives orders to proeeed to Boston. Dodge ®. Essex Ins. Co., (12 G.) 78 65. 651. An insurance " at and from Boston to all ports and places on the globe, and until her return to Boston, not exceeding two years, is not terminated by her arrival in the bay below Boston harbor, destined for Boston, within the ■ two years, and thence proceeding, pursuant to orders then received, to Salem for repairs. Ellery«.N.E.Ins.Co., (8 P.) 25 14. 652. A vessel insured to "a, port of dis- charge," in Europe, or in a particular country, may put into a port, there to inquire for a market, or procure supplies or repairs, or even take in a deck load, without discharging the insurers, if she proceeds to another po:t with- out breaking bulk. Coolidge v. Gray, 8 527; Lapham v. Atlas Ins. Co., (24 P.) 41 1. 653. But such an insurance ends, when the cargo is substantially discharged, although a small portion of it is transported, with mer- chandise there taken on board, to another port there to be discharged, and the vessel is lost on the passage thither; and whether the cargo was substantially discharged within the meaning of the policy, is for the jury. Upton v. Salem Ins. Co., (8 Met.) 49 605. See also, Fay ». Alliance Ins. Co (16 G.) 82 455. 654. For a peculiar case, where the question arose as to which was the port of discharge of the bay of Port Philip, there being three sepa- rate "landing places," or "ports" within the bay, see Fay v. Alliance Ins. Co., (16 G.) 82 "455. 655. An insurance upon a vessel till arrival " and moored twenty-four hours in safety," does not cover a loss, occuring after she has lain three weeks, at a place to whi h she was destined as her port of discharge, and where she has discharged a substantial part of her cargo, although her owner intended to take her into Ln inner basin in the port, to complete her discharge. Bramhallfl. Sun Ins. Co., 104 510. 656. Such an insurance is not terminated, where the vessel came to anchor, not to unload, but to lighten in order to get to her wharf, and lightens with all due diligence, but is des- troyed while lightening. Meigs v. Mutual Ins. Co., (2 C.) 56 439. 657. And a usage as to when a voyage is deemed terminated, with respect to the payment of premium notes, is not admissible to show when it terminates, with respect to the payment of losses. Meigs «. Mutual Ins. Co., (2 C.) 56 439. 658. The clause referred to terminates the insurance, after the vessel has been 24 hours in the usual anchorage ground, although she may not be able, at any time within the 24 hours, to land her cargo. Bill v. Mason, 6 313. See, also, Gray v. Gardner, 17 188. 659. Under an insurance upon merchandise, " until landed," where, while it is being landed, and part of it is on the wharf, a fire breaks out on the wharf, and consumes that portion landed, but the ship, with the remainder on board, is hauled away from the wharf and saved, the insurer is not liable for the merchandise destroyed upon the wharf. Mansur v. N. E. Ins. Co., (12 G.) 78 520. 660. An insurance upon a vessel for a voyage out and back to the port of departure, is ter- minated where she has put into a port in dis- tress, and has been surveyed and condemned and sold, by direction of the United States consul. Paddock ». Commercial Ins. Co., (2 A.) 84 93. 661. Where a vessel was insured from Boston to some port in Holland, or elsewhere, in case the master could liot "get into " Holland, and she arrived in Maese, and might have gone to Botterdam, but the master, hearing that she would be confiscated at Rotterdam, left Holland for the Baltic, and was there captured, it was held that the underwiters were liable. Coolidge v. Gray, 8 527. 662. An insurance to "St. Thomas and a market in the West Indies," implies that the INSUKANCE, V, (9). 829 master may return to port, after having once lpft it if with intent to find a market. 'Deblois e. Ocean Ins. Co., (16 P.) 33 30a. 663 Where a ship has been brought to wharf, so as to be subject to municipal control, the general maritime law no longer governs the rights and obligations of the parties to the adventure, so far as the consequences of such control are concerned. "Wamsutta Mills v. Old Colony Steam- boat Co., 137 471. (9.) Voyage s deviation ; transshipment. [See ante, V, (7); and V, (8).] 664. For the general rules as to the descrip- tion of a voyage in a policy, and the effect of a misdescription, see per Sew all. J., in Manly «. United M. & F. Ins. Co., 9 85. 6(15. Smble, that unless the commencement and termination of a voyage is expressed in the policy, the policy is void for uncertainty. Per Sedgwick, J., in Cleveland v. Union Ins. Co., 8 308. [See, also, ante, arts. 449, 150.] 666. The voyage is to he performed in such a manner that the underwriters are responsible for no extraordinary risks which were not con- templated, and which may be unnecessarily in- curred. Per Sedgwick, J., in Cleveland v. Union Ins. Co., 8 308. 667. Where the policy permits the insured to sail anywhere, there can be no delay in the nature of deviation which will avoid it; it pro- tects the property at every place wherever it may be, unless greater than ordinary danger is unnecessarily incurred. Per Sedgwick, J., in Cleveland v. Union Ins. Co., 8 308. 663. A voyage is the sailing of a vessel from one port or place to another port or place, and the purpose for which it is conducted, whether as a trading, freighting, or fishing voyage, is often mentioned in the policy; but such desig- nation cannot vary or extend the description, route, or termini of the voyage, as expressed in the policy, unless some usage, connected with the particular trade or adventure, is shown to exist. Burgess v. Equitable Ins. Co., 126 70. 669. Where a vessel, insured " at and from " a certain port, to, etc., sails with her cargo from the port, puis back on account of the discovery of a leak, and sails again after being repaired, the insurer is liable, while she is again in port, and for her subsequent voyage. Taylo.D Lowell, 3 331; Merchants' Ins. Co. v Clapp, (11 P.) 28 56. 670 The insured is protected while his vessel pursues the usual and customary course; but any departure from such course, or from the route named in the policy, to a port or place not named, or any delay in prosecuting the voyage, ?r the business thereof, without necessity or just cause, or for the prosecution of business not connected with the voyage, is a deviation, which discharges the insurer; and whether the risk is increased thereby, is immaterial. Where- ever, therefore, the vessel thus deviates,, the insured must show that the departure was neces- sary, or the delay reasonable, under the circum- stances. Burgess v. Equitable Ins. Co., 126 70; Amsinck v. American Ins. Co., 129 185. See, also, Stocker v. Harris, 3 409; Brazier •». Clap, 5 1; Coffin v. Newbury- port Ins. Co., 9 436; Kettell «. Wiggin, 13 68; Dodge v. Essex Ins. Co., (12 G.) 78 65. 671. Going to another port, for a clearance and supply of water, and a change of crew, is not a deviation, if in the usual course of trade upon such a voyage. Parsons v. Manuf'rs' Ins. Co., (16 G.) 82 463; Washington Ins. Co. v. White, 103 238. 672. A deviation is justified, where the ma'ter is compelled by force to depart rrom his route, or to delay its prosecution by the acts of his crew ; or where he is detained by those in authority; or taken out of his course by a ship of war; or obliged to leave his course or delay, by s>ress of weather, or other peril of the sea, or to rep ir, or refit, or recruit his crew, or to avoid capture, or join convoy, in time of war; or where the de- parture is to save human life, or obtain medical assistance for those on board. Burgess a. Equitable Ins. Co., 126 70. See, also, Stocker v. Harris, 3 409; Lee ■o. Gray, 7 349; Clark «. United F. and M. Ins. Co., 7 365; Coolidge ». Gray, 8 527; Wiggin v. Amory, 13 118; Whit- ney v. Haven, 13 172; Hobart v. Nor- ton, (6 IP.) 25 159; Perkins s. Augusta Ins. Co., (10 G.) 76 312; Silloway v. Neptune Ins. Co., (12 G.) 78 73; Parsons v. Manuf'rs' Ins. Co., (16 G.) 82 463. 673. Where a master of ordinary skill and discretion, acts bona fide, according to his best judgment, semble, the insurers are liable, al- though he makes a mistake. Brazier ». Clap, 5 1. 674. Where the particular port of discharge is not named, it is no deviation to put into one port to inquire for a market, and then sail to* another. Lapham v. Atlas Ins. Co., (24 P.) 41 1. See, also, Clark «. United F. and M. Ins. Co., 7 365. 675. Where a policy was issued on a vessel " at and from Plymouth to Banks, codfishing, and at and thence back to Plymouth," and the vessel, having exhausted the bait, went to the nearest port for ba t, returned to the fishing grounds, and was afterwards lost, it was held that the insurer was discharged. Burgess v. Equitable Ins. Co., 126 70. See, also, Friend ». Gloucester Ins. Co., 113 326. 676. Taking a letter of marque by a mercan- tile vessel does not avoid her policy, but cap- turing a prize and taking possession of it do. Wiggin «. Amory, 13 118. See, also, Hobart v. Norton, (8 P.) 25. 159. 677 A voluntary deviation, to avoid a peril not insured against, discharges the insurer. Breed «. Eaton 10 21. 830 INSUEANCE, V, (9), (10). 678. A vessel may land or take goods in a port of necessity, if no delay or increase of risk occurs therefrom. Chase v. Eagle Ins. Co., (5 P.) 22 51 ; Perkins v. Augusta Ins. Co., (10 G.) 76 312. 679. So where the policy allows her to ' 'touch" or ' ' call " at that port. Thomdike «. Bordman, (4 P.) 21 471 ; Chases. Eagle Ins. Co., (5 P.) 22 51. 680. "Where a policy insures a vessel "to Kingston and a market in Jamaica, thence back," etc., it is no deviation if she goes direct to another port in Jamaica, and leaves for home, without touching at Kingston. Houston b. N. E. Ins. Co., (5 P.) 22 89. See, also, Hale v. Mercantile Ins. Co., (6 P.) 23 172;Debloisi>.OceanIns.Co., (16 P.) 33 303. 681 . Where a vessel is insured for two years, to all places on the globe, there can be no devi- ation. Elleryii. N. E. Ins. Co., (8 P.) 25 14. 682. For a case, arising upon a policy " to any port, or ports, beyond the Cape of Good Hope, one or more times to the same port for the pur- pose of selling the outward, and procuring a return cargo, and at and from thence to a port of final discharge in Europe and the United States," where, after purchasing part of the cargo, the master sold the same, 'and purchased other cargo with the proceeds, going to various ports in China, Japan, etc , and it was held that there was no deviation, see Thorndikes. Bordman, (4P.) 21 471. 683. A policy on a vessel from New York to ports in South America, and thence to ports of discharge in the U. S., with "liberty to deviate by going to port or ports in Europe, by paying an equitable premium therefor," covers one round voyage, but not intermediate voyages and adventures between European ports, such as an independent adventure from one port to another while awaiting return cargo; and oral testimony of usage is inadmissible to control it. Seccomb ». Provincial Ins. Co., (10 A.) 92 305. 684. For the construction of particular poli- cies, containing leave to go to a second or other additional port, see Perkins «. Augusta Ins. Co., (10 G.) 76 312; Parsons v. Manufrs' Ins. Co., (16 G.) 82 463; Nicholson*. Mercantile Ins. Co., 106 399. 685. Where an armed vessel was insured from the United States to India, " with liberty to cruise and capture," it was held that convoy- ing her prizes for eight or ten days was no deviation, it not appearing that she went out of her way for the purpose, and the jury hav- ing found that there was no increase of risk Wards. Wood, 13 539. 686. Where a voyage insured for is aban- doned, by substituting a new port of discharge, and the vessel is lost while pursuing a course which she might have taken, if she had con- tinued upon the voyage insured for, the insurer is nevertheless not liable. Merrill v. Boylston Ins. Co., (3 A.) 85 247. 687. A policy upon goods in a particular ship covers them in another ship, if they are transshipped from necessity, or under a stipula- tion in the policy allowing transshipment. Macy v. Mutual Ins. Co., (12 G.) 78 97; Pierce i>. Columbian Ins. Co., tl4 A.) 96 320; Macy v. China Ins. Co., 135 328. See, also, Parsons v. Manufrs' Ins. Co., (16 G.) 82 463. 688. If the goods are transshipped partly to one vessel and partly to another, they are sub- ject to the different perils of separate voyages, to distinct liens for freight, and to independent contributions in case of jettison. Pierce ». Columbian Ins. Co., (14 A.) 96 320. 689. Goods, carried from necessity overland, are still at the risk of the insurer. Bryant v. Comm. Ins. Co., (13 P.) 30 543. (10.) Total loss. [See, also, post, V, (11)0 690. An actual total loss occurs, where the subject of the insurance is physically destroyed, or otherwise lost to the insured; it is not incon- sistent with the fact that there may be a claim for salvage. Murray v. Hatch, 6 465; Wood v. Lincoln & K. Ins. Co., 6 479. 691. A submersion of a vessel is an actual total loss, where there is no permanent vestige of her; and, semile, that vestige means any thing which affords the means of recovery and resto- ration, whether visible or not. Sewall «. U. S. Ins. Co., (11 P.) 28 90. 692. If the vessel, being entire, is sunk and gone, the whole valuation is the measure of indemnity to the insured; but if any boats or materials have been saved and sold, the pro- ceeds must be deducted. Smith a. Manufrs' Ins. Co., (7 Met.) 48 448. 693. Where the vessel insured was captured by a French cruiser, recaptured by a British frigate, libelled and sold in England for salvage, and purchased by the master, who restored her to the owner; it was held that the owner might recover for an actual total loss, crediting the insurer with the proceeds, and might retain the vessel Storer v. Gray, 2 565. 694. But in a similar case, where the sale was made at the instance of the master, to avoid payment of salvage, it was held that the in- surer was not liable for a total loss. Oliver ». Newburyport Ins. Co., 3 37. 695. Where an article insured (in this case ice) has been, by reason of a peril insured against, placed in such a condition that it will inevitably perish or waste away, before reach- ing the port of destination, and it is sold at an intermediate port, this is an actual total loss, and the proceeds become salvage for the benefit of the insurer. Tudor u. N. E. Ins. Co., (12 C.) 66 554. . INSUEANOE, V, (10). 831 696. The insurer is liable for a total loss, •where there is an actual total loss, without an abandonment; but where the total loss is constructive merely, there must have been an abandonment, to enable the insured to recover as for a total loss. ,„ „ . Murray v. Hatch, 6 465; Peirce i>. Ocean Ins. Co., (18 P.) 35 83; Smith ®. Manufrs' Ins. Co., (7 Met.) 48 448. 697. Under a policy against a total loss only, the insured may recover for a constructive, as well as an actual total loss. Heebner v. Eagle Ins. Co., (10 G.) 76 131; Kettell ». Alliance Ins. Co., (10 G.) 76 144; Greenes. Pacific Ins. Co., (9 A.) 91 217. 698. And under a declaration for a total loss, he may recover for a constructive total loss. Snow «. Union Ins. Co., 119 592. 699. A constructive total loss of a vessel oc- curs, where she sustains an injury, to repair which would exceed half her value. Woods. Lincoln &K. Ins. Co., 6 479. 700. The American rule, stated more exactly, is that if a vessel is damaged to such an amount, that the insurer, after repair, and upon an ad- justment as for a partial loss, would have to pay more than half her value, the loss is con- structively total, at the option of the insured. Kettell s. Alliance Ins. Co., (10 G.) 76 144. 701. Where goods are damaged to more than half their value, the assured may consider the adventure at an end, abandon, and claim for a total loss. Bryant ». Comm. Ins. Co., (6 P.) 23 181; Bryant «. Comm. Ins. Co., (9 P.) 26 485; Bryant s. Comm. Ins. Co., (13 P.) 30 543; Kettell v. Alliance Ins. Co., (10 G.) 76 144. 702. If the expense of repairs to the insured vessel, including general average charges, would exceed her value, the assured is not en- titled to recover for a constructive total loss, without regard to any discrimination between damages constituting a partial loss, and a gene- ral average loss; and such estimated cost does not constitute an actual total loss. Greely ». Tremont Ins. Co., (9 C.) 63 415. 703. And a general average loss cannot be added to a partial loss, to make up a constructive total loss. Sewall s. U. S. Ins. Co., (11 P.) 28 90; Orrok s. Comm. Ins. Co., (21 P.) 38 456; Hall v. Ocean Ins. Co., (21 P.) 38 472; Reynolds v. Ocean Ins. Co., (22 P.) 39 191; Bllicott v. Alliance Ins. Co., (14 G.) 80 318. 704. A barratrous seizure of the vessel by the manners, in consequence whereof she receives damages, which cannot be repaired at the foreign port where she puts in, after possession of her nas been regained, nor can stores, equipments, etc., be procured there; in consequence of which tne United States consul sends her home, for the oenefit of whom it may concern, may be found "y the jury to be a constructive total loss. .Greene v. Pacific Ins. Co., (9 A.) 91 217 705. "Where the vessel was abandoned in the ice in the Arctic Ocean by the officers and crew, to save their lives, and subsequently was rescued by another ship and brought into port, but be- fore that time had been abandoned to the un- derwriters, it was held that the jury might find that there was a constructive total loss. Snow s. Marine Ins. Co., 119 592. 706. The constructive total loss of a whaling ship, at a port where whaling outfits are bought and sold, and where the outfits are in safety, is not a construct.ve total loss of the outfits, al- though no vessel is obtainable to carry them forward on the voyage. Macy v. China Ins. Co., 135 328. 707. Where the insured vessel is wrecked, or arrives damaged at a foreign port, the master has no right to sell it, and thus render the in- surer liable for a total loss, unless the sale is indispensably requisite, a necessity leaving no other alternative. Gordon s. Mass. Ins. Co., (2 P.) 19 249; Hall s. Franklin Ins. Co., (9 P.) 26 466; Howland v. India Ins. Co., 131 239. See, also, Winn s. Columbian Ins. Co., (12 P.) 29 279; Orrok v. Comm. Ins. Co., (21 P.) 38 456. 708. The master has no right to sell of his own motion, if there is opportunity, within a reasonable time, to consult and receive direc- tions from the owners and insurers. Halls. Franklin Ins. Co., (9 P.) 26 466; Allen «. Com'l Ins. Co., (1 G.) 67 154. 709. And where a sale is made, because the master ii unable to raise funds to make the ne- cessary repairs, he is bound to communicate with the insurers, so as to enable them to fur- nish the funds, if he can do so by the use of reasonable means, and without extraordinary or unreasonable delay. Stephenson s. Pacific Ins. Co., (7 A.) 89 232. See, also, Murray s. Hatch, 6 465; Bryant v. Comm. Ins. Co., (13 J-.) 30 543; Peirce ». Ocean Ins. Co., (18 P.) 35 83; Allen s Com'l Ins. Co.. (1 G.) 67 154. 710. In determining the question whether the sale was justifiable, it is not sufficient to show that the master acted in good faith; it must appear that he acted with good judgment and discretion, as a prudent owner, under like cir- cumstances, would have acted. Stephenson i>. Pacific Ins. Co., (7 A.) 89 232. See, also, Gordon s. Mass. Ins. Co., (2 P.) 19 249. 711. Where there is some evidence that a sale by the master, without consulting the insurer, is necessary, the insurer cannot com- plain of a ruling of the court that the sale was justifiable, unless he asks to submit the ques- tion to the jury. Mayo «. Pew, 101 555. 712. A survey and condemnation is not per se sufficient evidence, of the necessity of a sale by the master. Peirce v. Ocean Ins. Co., (18 P.) 35 83. 713. Nor is a sale by the public authorities against the master's protest, sufficient to charge the insurer with a total loss. Paddock v. Com'l Ins. Co., (2 A.) 84 93. 832 INSUKANCE, V, (10). 714. And if the master is present and in charge of the vessel, a total loss cannot be claimed by reason of a sale made by another. Paddock o. Com'l Ins. Co., (2 A.) 84 93. 715. If the ship, after the injury, remains in the control of the insured, and there is not a total loss, independently of the master's sale, such a sale will not make a total loss. Greely 11. Tremont Ins. Co., (9 C.) 63 415. 716. The rule as to a sale of goods by the master, with respect to the urgency of the necessity, and the impossibility of communi- cating with the insurers, is the same as where a vessel is sold. Bryant v. Comm. Ins. Co., (6 P.) 23 131; Bryant v. Comm. Ins. Co., (13 P.) 30 343. 717. Where a vessel is wrecked, in estimating whether the damage to the cargo was such that it might have been transported to a port and thence shipped to its destination, for less than half its value, the premium t > insure the goods during the transportation by land and water, and the duties upon them, are not to be reckoned. Bryant «. Comm. Ins. Co., (6 P.) 23 131; Bryant ». Comm. Ins. Co., (13 P.) 30 543. [See, further, as to when a sale of the vessel or cargo by the master is justifiable, post, V, (11); and Shipping, II, (1).] 718. Where goods have been insured against a total loss only, and they are necessarly trans- shipped, part in one vessel which arrives in safety, and part in another which is lost with all its cargo, the insurer is liable for the part lost. Pierce v. Columbian Ins. Co., (14 A.) 96 320. [See, also, ante, art. 687.] 719. Where an insurance upon goods is limited by the terms of the policy to a total loss, if several boxes, containing such goods, shipped and valued as one parcel, and damaged by the stranding of the ship, are taken to the nearest market, and there sold for less than half their valuation in the policy, less expenses, and are duly abandoned, that is a constructive total loss for which the insurer is liable. Kettell e. Alliance Ins. Co., (10 G.) 76 141. 720. Where a policy excludes a partial loss upon certain specified perishable articles, the insurer is liable for a total loss upon any one kind of such articles, which, in consequence of perils insured against, is of. no value upon arrival, although other kinds are only partially injured. Silloway v. Neptune Ins. Co., (12 G.) 78 73. 721. Where goods insured by a valued policy are jettisoned, the insurer is liable for the valua- tion in the policy, although it exceeds their market value at the place of destination. Forbes v. Manuf'rs' Ins. Co., (1 G.) 67 371. 722. Uppn an insurance of profits, where the goods are discharged in a damaged con- dition, at an intermediate port, and the insured has actually contracted for the goods with the consignee, he may recover for a total loss, although the consignee has received a small French v. Hope Ins. Co., (16 P.) 397. 33 723. An insurer of the freight of a ship for a voyage, is not liable for the total loss of the freight, where there Las been no total loss of the ship, and the goods could have arrived in specie, at the port of destination, although the ship was obliged, by a peril of the sea, to put back to the port of departure, and the goods, being damaged by the peril to the extent of half their value, or to the extent of goods yielding more than half the freight, have been sold there, accrding to the interests of all parties, except the insurer on freight. Lord v. Neptune Ins. Co., (10 G.) 76 109. 724. And where, notwithstanding an injury to the vessel, which renders her incapable of performing her voyage, the cargo remains capable of delivery in specie at the port of destination, there is no loss of freight for which an insurer on freight is liable, except in case of general average: but if the cargo has become, through the peril, wholly worthless, and incapable of being carried with safety to the vessel and the remaining cargo, and is, therefore, thrown overboard, there is a total loss of freight as to that part, although the remainder has been transshipped. Parsons «. Manuf'rs' Ins. Co., (16 G.) 82 463. 725. Where a vessel, on her way to the port of lading, was stranded and abandoned to her underwriters, who got her off, repaired her at' a cost of less than half her value, and tendered her back to her owner, who refused to receive her, and abandoned the charter-party, it was held that he could not recover the insurance on the freight. Marmaud v. Melledge, 123 173. See, also, Coolidge v. Gloucester Ins. Co., 15 341; McGaw s Ocean Ins. Co., (23 P.) 40 405; Thwing D.Washington Ius. Co., (10 G.) 76 443. 726. Under a policy on freight from Boston to San Francisco, and thence to the East Indies, and a port of discharge in the United States, with liberty to return with a cargo of guano from the Chincha Islands, instead of the East Indies, freight carried en the outward voyage is not to be deducted from the valuation in the policy, in computing a constructive total loss on the passage from the Chincha Islands home. Thwing v. Washington Ins. Co., (10 G.) 76 443. 727. Under a policy to the charterers of a vessel upon the freight, "for whom it concerns," the charterers are entitled to recover a sum, pay- able under the charter-par y at the termination of the round voyage, although the vessel is lost at the outward port. Silloway v. Neptune Ins. Co., (12 G.) 78 73. [As to the items allowed in computing a construc- tive total loss, see, also, pott, V, (11), (C).] INSURANCE. V, (11), (A). 833 (11.) Abandonment. (A.) The right to abandon. 728. Where an insured vessel is so injured by a peril, or by successive perils, insured against, that she cannot be repaired for half her value, the insured may treat this as a total loss, and may abandon her to the insurer, and recover accordingly. Wood v. Lincoln, etc., Ins. Co., 6 479; Peeles. Suffolk Ins. Co., (7 P.) 24 254; Orrok v. Comm. Ins. Co., (21 P.) 38 456; Hall v. Ocean Ins. Co., (21 P.) 38 472; Allen v. Com'l Ins. Co., (1 G.) 67 154; Kettell «. Alliance Ins. Co., (10 G.) 76 144; Taber a. China, etc., Ins. Co., 131 239. See, also, ante, V, (10). 729. See, for a ruling under a special policy relating to repairs in California, Lincoln v. Hope Ins. Co., (8 G.) 74 23. 730. Imminent danger of total loss will not justify an abandoment, if the ship is saved and repaired for less than half her value. Hall v. Frankl n Ins. Co., (9 P.) 26 466; Deblois «. Ocean Ins. Co., (16 P.) 33 303. 731. Nor can the insured abandon, if she can be thus repaired, although she will not then be as valuable as before. Orrok v. Comm. Ins. Co., (21 P.) 38 456. 732. If, after abandonment, a stranded or sunk vessel is in fact got off or raised, and re- paired for less than half her value, a previous abandonment is of no effect. Hall v. Franklin Ins. Co., (9 P.) 26 466; Sewall v. U. S. Ins. Co., (11 P.) 28 90; Reynolds «. Ocean Ins. Co., (22 P) 39 191; Marmaud v. Melledge, 123 173. s 733. And in such a case, the insurer, if the policy stipulates that he is not to be liable for a partial loss of less than half the value, may recover from the assured the expense of saving and repairing. Comm. Ins. Co. v. Chase, (20 P.) 37 142. 734. But the right of abandonment depends upon the state of facts when it is made; and if the ship is actually lost, so that the master, with Que diligence, cannot regain her, and pursue tbe voyage, the abandonment is not affected by her subsequent recovery by others. Dorr v. Union Ins. Co., 8 502; Rob- inson v. Jones, 8 536; Snow «. Union Ins. Co., 119 592. 735. The same rule holds in case of capture or detention, by a hostile or a friendly power, ana the restoration of the vessel, after abandon- ment, where the assured does not accept it. Lee e. Boardman, 3 238; Dorr «. N. E. Ins. Co., 4 221; Lovering v. Merc. Ins. Co., (12 P.) 29 348. 736. Where a captured vessel, after being rescued, is retaken, the right to abandon after recapture, depends upon the legality or illegality °i the rescue. Rpbinson v. Jones, 8 536; McLellan *. Maine Ins. Co., 12 346. Vol 1—105 737. Where the voyage is lost from fear of capture, however reasonable, the insured can- not abandon. Richardson v. Maine Ins. Co. 6 102- Cook v. Essex Ins. Co., 6 122; Wheat ™«' ? ra y. 6 134; Amory v. Jones, 6 318; Lee v. Gray, 7 349; Brewer •». Union Ins. Co., 12 170; Tucker v. Lnited M. & P. Ins. Co., 12 388. 738. Where the policy prohibits an abandon- ment for capture or detention, without condem- nation, or detention for a specific time, the pol- icy governs. Dorr a. Union Ins. Co., 8 502; Delano i>. Bedford Ins. Co., 10 347; Law v Goddard, 12 112; Lovering v. Merc. Ins. Co., (12 P.) 29 348. 739. Where a vessel is captured while a policy is in force, but not condemned till after it has expired, the insured may abandon after condemnation, al. hough he had previously elected not to abandon. Dorr e. N. E. Ins. Co., 11 1. 740. Where the whole purpose of the voyage been substantially accomplished, though not in the way intended, there can be no abandonment for subsequent capture. Shapley v. Tappan, 9 20. 741. Where part only of an interest is insured, that part only may be abandoned. Coolidge a. Gloucester Ins. Co., 15 341. 742. Where there are two successive policies, and the owner abandons under the second, and the abandonment is accepted, he has nothing to abandon under the first, and can only recover an actual indemnity. Higginson ». Dall, 13 96. 743. Where the loss is not constructively total, and the master can repair within a reasonable time, there can be no abandonment for the freight. Clark «. Mass. Ins. Co., (2 P.) 19 104. 744. A part owner, who ins res for whom it may concern, loss payable to himself, is prima facie authorized to abandon. Reynolds v. Ocean Ins. Co., (22 P.) 39 191. 745. Where a considerable portion, though less than half in value, of goods insured, arrives in safety, the insurer cannot abandon and re- cover for a total loss. Forbes «. Manuf. Ins. Co., (1 G.) 67 371. 746. Nor can goods be abandoned on account of detention, if, upon the whole, it is reasonable that the master should procure another vessel to send them on, although it may be necessary to use land carriage to reship them. Bryant v. Comm. Ins. Co., (6 P.) 23 131. 747. Where a vessel is justifiably abandoned, tbe freight, insured in the same policy, may be abandoned, although the vessel is subsequently repaired, proceeds on her voyage, and earns the freight. Coolidge v. Gloucester Ins. Co., 15 341; Thwing i>. Washington Ins. Co., (10 G.) 76 443. 834 INSUEANCE, V, (11), (B), (C), (D). (B.) When necessary; viaiver thereof. 748. Where there is a mere constructive total loss, the insured may abandon or not at his option. Without an abandonment, he can- not recover for a total loss, but he may recover an indemnity for his actual loss. In such a case, the proceeds of the materials are to be deducted. Peirce v. Ocean Ins. Co., (18 P.) 35 83; Smith «. Manufrs' Ins. Co., (7 Met.) 48 448; Graves B.Washington Ins. Co., (12 A.) 94 391. 749. Where a vessel has become a construc- tive total loss, and has been necessarily sold by the master in a foreign port, the insured may recover for a total loss 'without abandonment; but an illegal sale by the master does not relieve him from an abandonment. Gordon v. Mass. Ins. Co., (2. P.) 19 249; Peirce v. Ocean Ins. Co., (18 P.) 35 83; Orrok «. Comm. Ins. Co., (21 P.) 38 456; Lord v. Neptune Ins. Co., (10 G.) 76 109; Howland «. India Ins. Co., 131 239. See, also, a peculiar case, Badger «. Ocean Ins. Co., (23 P.) 40 347. These cases overrule dicta in Smith v. Manufrs' Ins. Co., (7 Met.) 48 448, and Graves «. Washington Ins. Co., (12 A.) 94 391. 750. Where the insured, or his representative, after abandonment, receives and disposes of the vessel and the proceeds of the cargo, this is a waiver of the abandonment. Martin v. Salem Ins. Co., 2 420; Smith v. Touro, 14 112. 751. Where the insurers, with frdl knowl- edge, make an adjustment of a claim for total loss, by reason of capture, the jury may infer an abandonment, or a waiver of the right to require it. McLellan v. Maine Ins. Co., 12 246. 752. Delivery of the vessel upon bail, to an agent appointed by the master after the cap- ture, is not a waiver of an abandonment, for he. is deemed the insurer's agent. 1 Lovering v. Merc. Ins. Co., (12 P.) 29 348. (C.) Computation of a construc- tive total loss. 753. In computing a constructive total loss, the expense allowed is what it will cost to com- pletely and thoroughly repair the vessel, so as to put her in her former condition; not merely what it will cost to make her seaworthy. The cost of taking her to the nearest port, where this can be done, is also allowed. Lincoln v. Hope Ins. Co., (8 G.) 74 22; Ellicott v. Alliance Ins. Co., (14 G.) 80 318. 754. Items which properly belong to general average, the expense of ascertaining the loss, the wages, etc., of the crew while repairing, are not allowed. But the expense of the custody of the vessel and superintendence are allowed, de- ducting one third new for old. Orrok v. Comm. Ins. Co., (21 P.) 38 456; Hall v. Ocean Ins. Co., (21 P.) 38 472; Reynolds i>. Ocean Ins. Co., (22 P.) 39 191; Greely v. Tremont Ins. Co., (9 C.) 63 415. 755. Semble, that a reasonable interest on the funds raised for repairs, must be allowed. Heebner v. Eagle Ins. Co., (10 G.) 76 131. 756. As to the expense of a new bottom, under a special stipulation in the policy, see Prince v. Eq. Safety Ins. Co., (12 G.) 78 527. 757. A constructive total loss of a whaling vessel, at a port where whaling outfits are sold, the outfits being in safety, is not a constructive total loss of the outfits, although the usage is such in the port of departure. Taber v. China Ins. Co., 131 239. 758. So, also, as to a chronometer. Bond e. McKinnon, (9 A.) 91 344. 759. So, also, as to goods actually delivered to the consignee. Silloway v. Neptune Ins. Co., (12 G.) 78 73. 760. In computing the value of the vessel, under a valued policy, the valuation in the policy must be taken as conclusive, deducting one third new for old. Lovering'!). Merc. Ins. Co., (12 P.) 29 348; Deblois v. Ocean Ins. Co., (16 P.) 33 303; Orrok v. Comm. Ins. Co., (21 P.) 38 456; Hall t>. Ocean Ins. Co., (21 P.) 38 472; Allen v. Com'l Ins. Co., (1 G.) 67 154; Heebner v. Eagle Ins. Co., (10 G.) 76 '131. 761. Such being the Massachusetts rule, it holds under a policy of a foreign insurance company, which was executed and delivered here. Heebner v. Eagle Ins. Co., (10 G.) 76 131; Thwing v. Great West. Ins. Co., Ill 93. (D.) When and how made; ac- ceptance and effect thereof. 762. The insured, if he elects to abandon, must do so within a reasonable time after he has, or can, with due diligence, have, knowl- edge of the facts constituting the constructive total loss. What is a reasonable time, and what is sufficient knowledge, depend upon the peculiar circumstances of each case. Livermore «. Newburyport Ins. Co., 1 264; Oliver v. Newburyport Ins. Co., 3 37; Munson «. N. E. Ins. Co., 4 88; Smith v. Newburyport Ins. Co., 4 668; Dorr v. Union Ins. Co., 8 494; Orrok «. Comm. In*. Co., (21 P.) 38 456; Keyaolds v. Ocean Ins. Co., (22 P.) 39 191. 763. What is a reasonable_time is a mixed question of law and fact. Reynolds v. Ocean Ins. Co., (23 P.) 39 INSUEANCE, V, (11), (D); (12). 835 191. See, also, Smith v. Newburyport Ins. Co., 4 668; and Reasonable Time. 764 An abandonment by reason of capture must be made before the vessel is released. Where the policy stipulates respecting the same, it must be followed. Tucker v. United M. & P. Ins. Co., 12 288, and ante, art. 738. 765. The acceptance of an abandonment •waives all questions as to its seasonableness or 8UffiC1 Reynolds v. Ocean Ins. Co., (22 P.) 39 191. 766. No particular form of abandonment is prescribed. It may be in writing, or oral; it must be absolute, and to take effect immedi- ately; and it must truly state the grounds of making it; otherwise it is insufficient. Peirce «. Ocean Ins. Co., (18 P.) 35 83; Reynolds i>. Ocean Ins. Co., (22 P) 39 191; Macy ». Whaling Ins. Co., (9 Met.) 50 354; Lincoln v. Hope Ins. Co., (8 G.) 74 32; Heebner v. Eagle Ins. Co., (10 G.) 76 131; Perkins v. Augusta Ins. Co., (10 G.) 76 312; Thwing v. Wash'n Ins. Co., (10 G.) 76 443; Sillo- way v. Neptune Ins. Co., (12 G.) 78 73. [See, also, ante, art. 686.] 767. A notice of abandonment of a certain vessel, "insured under your policy," (stating the number of the policy), is a sufficient aban- donment in case of an insurance upon advances. Burnham e. Boston Ins. Co., 139 399. 768. Semble, that an abandonment is a nullity, if a bottomry bond, which the assured had an opportunity to pay, remains unpaid. Allen v. Com'l Ins. Co., (1 G.) 67 154. See, also, Gordon v. Mass. Ins. Co., (8 P.) 19 249. 769. As to the kind of proof, necessary to be * furnished, where the policy requires proof, see Lovering v. Merc. Ins. Co., (12 P.) 29 348. 770. Where an abandonment is once legally made, subsequent events, happening without the consent of the insured, do not affect the right to recover for a total loss. Munson v. N. E. Ins. Co., 4 88^ Wood v. Lincoln, etc., Ins. Co., 6 479. [See, also, ante, art. 734.] 771. An authorized abandonment relates back to the loss, and the insurer's rights and liabili- ties, with respect to the property abandoned, events taking place since the loss, although be- fore the abandonment, are fixed as of that time. Lovering v. Merc. Ins. Co., (12 P.) 29 348; Peirce i>. Ocean Ins. Co., (18 P.) 35 83; Sun Ins. Co. v. Hall, 104 507; Snow v. Union Ins. Co., 119 592. [Seei also, ante, art. 515.] 772. The insurer is consequently bound to pay the seamen's wages earned after loss, out of the proceeds, if any, of the wreck. Prothingham v. Prince, 3 563. 773. And he is entitled to freight subse- quently earned, if the vessel is repaired and toshes the voyage. Coolidge v. Gloucester Ins. Co., 15 341. 774. But an unauthorized abandonment has no effect upon the insurer's rights or liabilities. Bryant v. Comm. Ins. Co., (6 P.) 23 131 ; Bryant v. Comm. Ins. Co., (13 P.) 30 543; Peirce v. Ocean Ins. Co., (18 P.) 35 83; Orrok v. Comm. Ins. Co., (21 P.) 38 450. 775. Taking possession of a vessel to repair her, and restore her to the insured, is not an acceptance of the abandonment, if within a reasonable time she is fully so repaired and re- stored; otherwise it is an acceptance. And if the insured, on restoration, makes no objection to the time, or to the completeness of the re- pairs, he cannot afterwards take such objections. Wood v. Lincoln, etc., Ins. Co., 6 479; Comm. Ins. Co. v. Chase, (20 P.) 37 142; Reynolds v. Ocean Ins. Co., (22 P.) 39 191 ; Badger v. Ocean Ins. Co. , (23 P.) 40 347; Reynolds v. Ocean Ins. Co., (1 Met.) 42 160; Marmaud v. Melledge, 123 173. 776. But he may recover for a deficiency subsequently discovered, as for a partial loss. Reynolds v. Ocean Ins. Co., (22 P.) 39 191. 777. And the insurer's duty and liability in such a case are not affected by a clause in the policy, providing that his acts in saving, etc., the vessel, shall not be construed as an accept- ance. Reynolds v. Ocean Ins. Co., (1 Met.) 42 160. 778. Where goods insured by a marine policy are seized by a foreign government, and aban- doned to the underwriters, who accept, the abandonment, and pay the amount insured, they are entitled to all damages awarded for the seizure; but if they permit the insured to make the claim, and themselves make no claim for a number of years, and until the award is made to the assured or his assignee, by their laches they lose the right, and cannot recover the compensation for the seizure, allowed and paid to the insured or his assignee. Mercantile Ins. Co. v. Corcoran, (1 G.) 67 76. (12.) General average. [See, also, post, V, (14); Shipping, III, (4). As to general average under a Are policy, see ante, art. Ml 779. Average signifies contribution, and gen- eral average is a contribution made ratably by the ship, freight, and cargo, to a loss or expense voluntarily incurred for the preservation of the whole- , no Padelford v. Boardman, 4 548. 780 All who are concerned in the ship, freight, and cargo, must bear their proportions of a general average loss, and for the contribu- tion thus made, each owner contributing is en- titled to be indemnified by his insurer. Padelford «. Boardman, 4 548; Bed- ford Com'l Ins. Co. v. Parker, (2 P.) 19 836 INSURANCE, V, (12). 1; Orrok e. Coram. Ins. Co., (21 P.) 38 456; Brewer ». American Ins. Co , 123 78. 781 . To constitute a general average loss, there must be a voluntary and intentional sacrifice of part of the property to save the remainder from a common peril; or extraordinary expenditures must he incurred to save the property in peril. The authority to determine when a sacrifice shall be made, and what property shall be sac- rificed, rests with the master. Wamsutta Mills v. Old Colony S. B. Co., 137 471. See, also, Whitteridge v. Norris, 6 125; Scudder v. Bradford, (14 P.) 31 13; Reynolds v. Ocean Ins. Co., (22 P.) 39 191; G-eely e. Tremont Ins. Co., (9 C.) 63 415; Dabney v. N. E. Ins. Co., (14 A.) 96 300. 782. If the property is injured or destroyed by strangers to the ship and cargo, not employed by the master, it is not a general average loss. Wamsutta Mills v. Old Colony S. B. Co. , 137 471. 783. And it makes no difference whether the act of the strangers was a tort, or justifiable on the ground of a public or paramount right, as where a fire on a vessel, lying at a wharf, is ex- tinguished by members of the fire department. Wamsutta Mills v. Old Colony S. B. Co., 137 471. 784. A loss, arising partly from a peril in- sured against, and partly from the consul's mis- take, is not a general average loss. Dodge v. Union Ins. Co., 17 471. 785. Cutting away the masts of a vessel is not the less a general average charge, because the vessel was then in ballast, and there was neither cargo or freight to contribute. Greely v. Tremont Ins. Co., (9 C.) 63 415. 786. It is essential, to sustain a general aver- age cla m, that the property to contribute was rescued by the sacrifice from the peril. Scudder e. Bradford, (14 P.) 31 13; Dabney ». N. E. Ins. Co., (14 A.) 96 300. 787. But if once rescued, it makes no differ- ence that it was afterwards lost by another peril. Scudder v. Bradford, (14 P.) 31 13. 788. It is essential that the benefit to the property saved was intended, as well as ob- tained. Whitteridge v. Norris, 6 125; Scud- der «. Bradford, (14 P.) 31 13; Dabney v. N. E. Ins. Co., (14 A.) 96 300. 789. Cutting the cables is not the less a gen- eral average charge, that there was reason to believe that they would soon have parted. It was a voluntary act when it was done, and this gives it its character. Reynolds v. Ocean Ins. Co., (22 P.) 39 191; Greely ». Tremont Ins. Co., (9 C.) 63 415. 790. A sacrifice of property, to rescue persons from shi wreck on another vessel, is not the subject of a general avenge claim. Dabney v. N. E. Ins. Co., (14 A.) 96 300. 791. Where part of a cargo was thrown over- board, to make room for the passengers and crew of a vessel about to sink, the work having been begun before they came on board, and continued while they were coming on board, it was held, that the ship owner could not recover for a general average contribution. Dabney t>. N. E. Ins. Co., (14 A.) 96 300. 792. Where property taken into a boat, upon leaving the vessel, through fear of perishing, is necessarily thrown overboard to lighten the boat, the owners of the property have no gen- eral average claim, as the sacrifice was not for the common benefit. Whitteridge v. Norris, 6 125. 793. The cost of raising a ship and bringing her in, after she has been abandoned by the underwriters, who refuse to accept, and raise her, is not a general average charge. Ellicott v. Alliance Ins: Co., (14 G.) 80 318. 794. The expense of going into a port out of course, to refit, and the wages and provisions of the master and crew during detention, are proper subjects of general average. Padelford i>. Boardman, 4 548. 795. Wages and provisions during detention by capture, are not the subject of general aver- age, but costs and charges to procure the resto- ration of the ship and cargo are. Dorr v. Union Ins. Co., 8 494; Spaf- ford v. Dodge, 14 66. 796. Permanent repairs are not the subject of general average; but tempora; y repairs abroad,, merely to enable the vessel to reach home, are. Padelford v. Boardman, 4 548; Brooks v. Oriental Ins. Co.,. (7 P.) 24 259. 797. As to the liability, as a general average charge, for aid to the master and crew in get- ting off and refitting a stranded vessel, see Bedford Com'l Ins. Co. v. Parker, (2 P.) 19 1; Giles v. Eagle Ins. Co., (2 Met.) 43 140. 798. Where part of the outfits of a whaler are sold to pay the cost of repairing her, the loss thereby is a subject of general average. Giles v. Eagle Ins. Co., (2 Met.) 43 140. 799. The master's commissions and disburse- ments in a foreign port, into which the vessel has put in distress, and the premium of exchange on the sums expended there, are not subjects of general average, but the master's board on shore is. Dodge v. Union Ins. Co., 17 471. 800. An insurer on freight is liable for the freight of goods jettisoned, without waiting for the adjustment of the general average, although the loss is payable within 60 days after adjust- ment. Lord v. Heptane Ins. Co., (10 G.) 76 109. 801. Owners of cargo under deck, are not, in general, l'able for general average on goods on deck jettisoned. Taunton Copper Co. ®. Merchants' Ins. Co., (22 P.) 39 108. INSUEANOE, V, (13). 837 eral." (13.) Partial loftm or particular average. [See, also, ante, V, (10); post, V, (5).] 802. Where a policy specifies that the insur- ance is to be " free of particular average," the ■words "particular average" mean partial loss, and the entire clause is equivalent to a stipula- tion against liability for any loss which is not total.* Pierce v. Columbian Ins. Co., (14 A.) 96 330. See, alsj, Padelford v. Board- man, 4 548. 3. So as to " free from average, except gen- Paddock v. Com'l Ins. Co., 104 521. 804. If goods of one kind in one ship are insured by one description and valuation, against total loss only, the total loss of some of them, although in separate packages, is a partial loss. Wherever a part of a cargo is trea.ed as a distinct subject of insurance, so as to give a right to recover for that part as a total loss, the goods lost are of a different kind from those saved; or so described or valued, with the insurer's assent, as to distinguish them. Pierce o. Columbian Ins. Co., (14 A.) 96 320. See, also, Kettell «. Alliance Ins. Co., (10 G.) 76 144; Silloway v. Neptune Ins. Co., (12 G.) 78 73; Harts- horn «. Shoe & L. Ins. Co., (15 G.) 81 240. 805. Where, after a partial loss has been re- paired, a total loss happens, the insurer, in the absence of any special stipulation in the policy, is liable for both. Matheson *. Equitable Ins. Co., 118 209. 806. And it is immaterial whether the policy is a time policy or a voyage policy. Matheson v. Equitable Ins. Co., 118 209. See, also, Wood v. Lincoln, etc., Ins. Co., 6 479; Rice v. Homer, 12 230; Lovering ». Mercantile Ins. Co., (12 P.) 29 348. 807. AMter, if no expense has been incurred, to repair the partial loss. Rice v. Homer, 12 230. 1 808. And if the partial loss has been repaired with materials taken from the cargo, it is par- ticular average. Brooks d. Oriental Ins. Co., (7 P.) 24 259. 809. Where a ship, receiving damage, returns to her port of departure to repair, and the mas- ter delivers up the cargo to the shipper, although she can be refitted in a reasonable time, the in- surer on freight is liable only for the freight on the portion of the cargo destroyed. McGaw v. Ocean Ins. Co., (23 P.) 40 405. . MO- He is not, in such a case, liable for freight on a portion sold by the master, in con- sequence of its being wet with sea water, al- though it is cotton, which, in such a condition, is liable to spontaneous ignition. McGaw i>. Ocean Ins. Co., (23 P.) 40 405. v ' Partial loss includes both general and particular fl! age ' and the latter term includes all partial losse\exeept general average." wadsworth v. Pacific Ins. Co., 4 Wend., 33. 811. Where part of the cargo was cotton and part tobacco, the freight being valued at an en- tire sum, the valuation should be applied to each, in the proportion which the stipulated freight of each bears to the valuation of the whole freight. McGaw v. Ocean Ins. Co., (23 P.) 40 405. 812. As to the allowance of the expense of transportation, as an item of partial loss, see Macy*. China Ins. Co., 135 328. 813. If the insured, under a valued policy, puts at risk only part of the goods and freight, to which he intended the valuation to apply, he can recover only a proportion of the valua- tion, although the loss is total. Wolcott v. Eagle Ins. Co., (4 P.) 21 429. 814. Where there is a partial loss of freight, one half of which is insured, the valuation of which is less than the actual amount of the freight, the insured can recover the proportion of the valuation, which the freight actually lost bears to the real amount. Fay v. Alliance Ins. Co., (16 G.) 82 455. 815. In computing a partial loss, return duties are not deducted from the sum which the underwriters are to contribute. Cory d. Boylstonlns. Co., 107 140. 816. Where the injury to the vessel is of such a character, that her value is diminished in consequence of the repairs, the insurer is liable for the diminished value and the expense of repairs. Giles «. Eagle Ins. Co., (2 Met.) 43 140. 817. Where the policy provides that the insurer shall not be liable for a partial loss, unless it exceeds a certain percentage, the bur- den of proving a loss to that amount, for which the insurer is liable, is upon the insured. Cory v. Boylston Ins. Co., 107 140. See, also, Padelford v. Boardman, 4 548; Paddock . Comm. Ins. Co., (21 P.) 38 456; Giles «. Eagle Ins. Co., (2 Met.) 43 140; Lincoln v. Hope Ins. Co., (8 G.) 74 22; Paddock v. Com'l Ins. Co., 104 521. 838. Usage at a particular port to deduct one third new for old, from the gross amount, will not control the rule, there being no stipulation to that effect in the policy. Brooks «. Oriental Ins. Co., (7 P.) 24 259. 839. Qu, , if an anchor may not be an excep- tion to the rule. Brooks v. Oriental Ins. Co., (7 P.) 24. 259. (15.) Action upon the policy; damages! evidence. 840. A person not named in a policy cannot maintain an action upon it, although he is the real party interested, unless he is an assignee of INSURANCE, V, (15). 839 the policy with the consent of the insurer, or the policy runs to whom it may concern, in either of which cases he may do so. Carroll v. Boston Ins. Co., 8 515; Farron i. Coram. Ins. Co., (18 P.) 35 53; Cobb v. N. E. Ins. Co., (6 G.) 72 192; Somes v. Equitable S. Ins. Co., (12 Q.) 78 531. 841. An insurance to "A, as agent for B," does not entitle B to sue upon the policy. Russell fl. N. E. Ins. Co., 4 82. 843. An insurance to "A, or as agent," enti- tles A to recover the entire loss, for the benefit of himself and another part owner. Davis v. Boardman, 12 80. 843. But an insurance to one part owner in his own name only, entitles him to recover only his own share. Dumas v. Jones, 4 647; Pearson v. Lord, 6 81. 844. He may, however, recover the whole, where the intention was to insure the premium. Mayo v. Maine Ins. Co., 12 259. 845. By usage, an insurance to A for another person, or whom it may concern, entitles the person insured to sue in his own name; but if, before suit brought, A's authority is disavowed or revoked by the party interested, he cannot maintain an action, unless the policy contains some express provision, making the loss pay- able to him, or he shows some lien or other interest, which the party interested cannot Reed v. Pacific Ins. Co., (1 Met.) 42 166. See, also, Davis v. Boardman, 12 80; "Ward v. Wood, 13 539; Copeland «. Mercantile Ins. Co., (6 P.) 23 198; Farrow v. Comm. Ins. Co., (18 P.) 35 53; Lazarus x>. Comm. Ins. Co., (19 P.) 36 81. 846. One insured for himself and others con- cerned, cannot recover in his own name, as one joint owner, if his interest is protected by a former policy. Gardner v. Bedford Ins. Co., 17 613. 847. An insurance to A, for whom it may concern, loss payable to B, where B's claim is satisfied before suit brought, has the same effect as if B's name was not in the policy. Rider v. Ocean Ins. Co., (20 P.) 37 259. 848. If the action is brought in the name of an agent who procured the insurance, the declaration should state who were the real par- ties in interest, at the time when the policy was issued, and at the time of the loss. Rider v. Ocean Ins. Co., (20 P.) 37 259. v ' , 849. So where a part owner sues, who has : paid part of the purchase money, but has not i the legal title. Rider v. Ocean Ins. Co., (20 P.) 37 259. 850. And a part owner, who has procured insurance on the vessel for whom it may con- cern, for her whole value, payable to himself in case of loss, and who procures the entire title before the loss, may recover the entire loss. Martin v. Pishing Ins. Co., (20 P.) 37 851. Where the insurance is to A, for whom it may concern, and the policy is indorsed with a statement that the insurance attaches for A, B, and C, each one third, payable to A, the three may join in an action upon it. Williams v. Ocean Ins. Co., (2 Met.) 43 303. 852. And in such an action the insurer can- not set off a debt due to him from A only. Williams i>. Ocean Ins. Co., (2 Met.) 43 303. [For other rulings respecting the right of a part owner or an assignee to sue, see ante, V, (1) ; V, (4).] 853. Where the policy makes the loss paya- ble within sixty days after notice and proof of loss, an action for a gen. ral average loss brought before the expiration of the sixty days, is pre- mature. Bryant ». Comm. Ins. Co., (6 P.) 23 131. 854. Claims for a general average loss and a total loss, may be joined in one count. Bryant v. Comm. Ins. Co., (6 P.) 23 131. 855. A constructive total loss may be recov- ered under a declaration for a total loss, which does not allege abandonment. Snow v. Union Ins. Co., 119 592. 856. In an action upon a policy, evidence of deviation is admissible under a general denial. Amsinck «. American Ins. Co., 129 185. 857. After adjustment and payment of a par- tial loss by the insurer's agent, with knowledge of a deviation, the deviation cannot be set up as a defence in an action for a subsequent total loss. Silloway «. Neptune Ins. Co., (12 G.) 78 73. 858. An answer, alleging false and fraudulent representations, will admit evidence of repre- sentations which were false but not fraudulent. Lewis s>. Eagle Ins. Co., (10 G.) 76 508. 859. For a ruling dismissing a bill in equity by an insurance company, to reform a policy, upon the ground that the company had only just discovered, that the insured had made a claim for a loss not covered by the policy, upon which he had recovered a verdict against the company, see Thwing v. Great West. Ins. Co., Ill 93; cited, also, ante, arts. 634 to 637. [For rulings as to the sum recoverable in cases of double insurance, see ante, V, (2).] 860. The valuation in the policy is conclusive upon the insurer and insured, in the absence of fraud, or proof that it was intended as a cover for a wager. Clark v. Ocean Ins. Co., (16 P.) 33 289; Phoenix Ins. Co. ». McLoon, 100 475. 861. And the insured can recover only the proportion of the valuation, which the goods and freight at risk bore to the subject matter insured. Wolcott v. Eagle Ins. Co., (4 P.) 21 429. [See as to the rule of valuation of goods, with re- spect to the place where the value is to be deter- mined, ante, V, (14).] 840 INSURANCE, V, (15). 862. In an action to recover the sum paid in a foreign country, for an injury to another ves- sel by collision, the insured may recover also his reasonable counsel fees, agent's commis- sions, and the premium paid by him for ex- change on remitting the sum. Blanchard v. Equitable Safety Ins. Co., (12 A.) 94 386. 863. Where the policy provides that certain funds only of the insurance company shall be applicable to the payment of a loss, an action may be nevertheless maintained (hereupon, -with- out a previous demand for such application, or proof that the company has funds thus appli- ' Cobb v. N. E. Ins. Co., (6 G.) 72 192. 864. The insured is entitled only to indemnity, although the policy provides that in case of loss no proof of property shall be required. Hemmenway v. Eaton, 13 108. 865. The insurer is not liable for a loss, aris- ing from a breach of a contract with a third person. Parsons v. Mass. Ins. Co., 6 197. 866. Under the suing and laboring clause in the policy, the insurer is liable for a proportion of the expenses, incurred in preserving the property from the operation of the perils insured against, but not of the expenses of ascer- taining the amount of the loss, or refitting the goods for market. Cory v. Boylston Ins. Co., 107 140. 867. Nor is he liable for commissions on the expense of repairs made at home. Brooks «. Oriental Ins. Co., (7 P.) 24 259. 868. Nor for the expense of a survey made at home, after the repairs are made. Giles ». Eagle Ins. Co., (2 Met.) 43 140. 869. In computing a loss by the perils of the seas, semble, that the jury are not authorized to add to the expense of repairs "damage of leak and straining of the vessel." Peele v. Suffolk Ins. Co., (7 P.) 24 254; Orrok v. Comm. Ins. Co., (21 P.) 38 456. 870. An inquiry of an expert, whether a damaged ship can be repaired so as to be as good a ship as before the injury, is too loose and indefinite. Orrok v. Comm. Ins. Co., (21 P.) 38 456. 871. Upon the question of the amount of Injury caused to a ship by perils of the sea, evidence as to what it would cost to put her in repair ;it the end of the voyage, without refer- ence to the causes which made the repairs needful, is competent. Paddock «. Com'l Ins. Co., 104 521. 872. Where the vessel has been sold at her port of destination, by the master, on account of his inability to raise funds to repair her, evidence that it would have been dangerous and impracticable to repair her there is incom- petent. Allen v. Com'l Ins. Co., (1 G.) 67 154. 873. Where, in the margin of a policy, upon a ship at sea, it was written that she had been spoken on the 27th of August, oral testimony that the date was a mistake for August 20th, is inadmissible. Ewer ». Washington Ins. Co., (16 P.) 33 502. 874. The officers of a marine insurance com- pany are presumed to have examined, with some care, the items of marine inteligence con- tained in newspapers taken at the office. Green v. Merchants Ins. Co., (10 P.) 27 402. 875. In an action for sea damage to bales of blankets, where the defence is that the damage arose in the manufacture or packing, evidence that the damage was different from salt water damage, and that other bales of the same manu- facturer, imported in the same year in other vessels, were damaged in the same manner, is admissible. Bradford v. Boylston Ins. Co., (11 P.) 28 162. 876. A paper stating the repairs made on a vessel, and her condition at the time, signed but not written by a shipbuilder's foreman, who cannot verify the facts from his own recol- lection, is not competent. Parsons «. Manuf'rs' Ins. Co., (16 G.) 82 463. 877. A certificate of a marine surveyor and inspector, made in the cours j of his business, is competent evidence of seaworthiness, if he testifies that he examined the vessel, and has no doubt that the facts are truly stated therein, although he has no independent recollection of the facts, or of having signed it. Perkins v. Augusta Ins. Co., (10 G.) 76 312. [See further as to evidence of seaworthiness, ante, V, (5).] 878. An ex parte survey, made at the plain- tiff's instance, is not competent evidence, unless called for by the defendant. Hall v. Franklin Ins. Co., (9 P.) 26 466. 879. This certificate to a survey, "Done before me, R. P., notary public," does not im- port that the surveyor was sworn. Hall v. Franklin Ins. Co., (9 P.) 26 466. 880. The survey need not be produced, if previously seen, and not called for, by the de- fendant. Mitchell «. N. E. Ins. Co., (6 P.) 23 117. 881. A survey is not conclusive evidence of the necessity of a sale. Gordon v. Mass. Ins. Co., (2 P.) 19 249. 882. A survey signed by two is not evidence, unless verified by the oaths of both. Cunningham s. Hall, (4 A.) 86 268. 883. The declaration of one of the surveyors, made at the time, but not contained in the report, cannot be proved by oral testimony. Orrok v. Comm. Ins. Co., (21 P.) 38 456. 884. The sentence of a foreign admiralty court, condemning the ship insured for breach of a blockade, is conclusive evidence of such INSUKANCE, V, (15) -INSUEANCE COMPANY, I; II, (1). 841 breach, if it distinctly and specifically states the causes of condemnation; but not otherwise. Baxter v. N. E. Ins. Co., 6 277; Rob- inson v. Jones, 8 536. 885. And the record must show the filing of a libel, the issuing of process, and a trial. Sawyer ». Maine Ins. Co., 12 291. See, also, Higgins v. Livermore, 14 106. 886. As to the effect of the words " or other- ■wise," " or for other sufficient reasons," added after the statement of the causes of condemna- tion, see Baxter v. N. E. Ins. Co., 6 277; Rob- inson v. Jones, 8 536. 887. If the record shows that the condemna- tion was for misconduct of the master, amount- ing to a breach of an express or implied con- dition, the insurer is discharged. Coffin v. Newburyport Ins. Co., 9 436. 888. So if it shows that the condemnation was founded upon an attempted rescue by the crew. Eobinson v. Jones, 8 536. 889. A loss by capture may also be proved, by evidence that the vessel was seen in posses- sion of armed soldiers in the foreign countiy, and that she never returned home; and the plaintiff is not bound to produce the decree of condemnation, which he has in court, and has offered to the defendant for his use. Dorr ». Pope, (8 P.) 25 232. 890. Where, upon the sale of a vessel, under a decree of an admiralty court, the master pur- chased her on his own account, without au- thority from the owners, the insurer cannot reduce the loss from a total to a partial one. Sawyer v. Maine Ins. Co., 12 291. Insurance company. I. Miscellaneous statutory Provisions. II. Mutual Insurance Company. (1.) Officers; members; policy, and cancel- ment thereof. (2.) Classification of risks; deposit notes. (3.) Assessment. (4.) Ratification of assessment; action there- for. III. Insolvent Insurance Company. IV. Foreign Insurance Company. [See, also. Corporation ; Insurance.! I. Miscellaneous statutory Provisions. . 1. St. 1874, Ch. 222, relating to dividends of joint stock fire and marine insurance com- panies, did not apply to companies established under special charters. See, now, P. S., Ch. W, §§69, 72. Atty.-Gen'l v. Mercantile Inr Co., 121 524. Vol. 1—106 2. A statute, relating generally to insurance companies, embraces any company whose busi- ness it is to make contracts for the payment of money to the other party, upon the destruction or injury of something in which the latter has an interest, whatever may be the terms of pay- ment of the consideration, or the mode of esti- mating or securing payment of the loss, and although the company's object is not specula- tive but benevolent. Comm. v. Wetherbee, 105 149. 3. St. 1880, Ch. 227; P. 8., Ch. 13, §§ 25 to 28, imposing an excise tax upon insurance com- panies, is constitutional. Connecticut Ins. Co. i>. Comm., 133 161. 4. The holder of a policy of insurance made by a stock company, when under liability for losses to an amount equal to the capital, could not, under R. S., Ch. 37, § 18, maintain an ac- tion against the directors for a loss, without first recovering judgment against the corpora- tion. See, now, P. S., Ch. 119, § 57. Kinsley v. Rice, (10 G.) 76 325. 5. P. S., Ch. 119, § 47, is directory only; and if a managing officer of an insurance com- pany borrows its money, and fraudulently pledges for the loan the negotiable bonds of an innocent third person, the company, acting in good faith and without notice, acquires title to the bonds. Bowditch v. New England Ins. Co., 141 292. 6. A loan by an insurance company to one of its finance committee, may be made in good faith and in the ordinary course of business, notwithstanding that statute, and a rule of the board of directors prohibiting such loan. Bowditch v. New England Ins. Co., 141 292. II. Mutual Insurance Company. (1.) Officers; members; policy, and can- celment thereof. 7. The officers of a mutual insurance com- pany have no power to waive the by-laws and other provisions for its protection, adopted by the company, and incorporated into its policies. Mulrey v. Shawmut Ins. Co., (4 A.) 86 116; Murphyc. People's Eq. Ins. Co., (7 A.) 89 239. 8. The president has no power to waive the forfeiture of a policy, for nonpayment of the premium pursuant to the by-laws. Baxter v. Chelsea Ins. Co., (1 A,) 83 294. 9. Directors can be chosen only at a meeting called specially for that purpose; and if, at a meeting not so called, it is voted to increase the number of directors, and additional directors are then chosen, an assessment by them is in- valid. People's Ins. Co. v. Westcott, (14 Q ) 80 440. 10. "Where a by-law provides that a risk shall be suspended, if an assessment is not paid 842 INSURANCE COMPANY, II, (1). within a certain time after notice, it is no ex- cuse on the part of member for failure to pay his assessment, that the company owes him a smaller sum, if he did not offer to pay the bal- ance. Hollisterfl. Quincylns. Co., 118 478. 11. Personal notice is sufficient, where the charter requires payment within 30 days after publication. Jones v. Sisson, (6 G.) 72 288. 12. Evidence that a notice of an assessment, addressed to each member assessed, was made out, that the treasurer took some to the post- office, and the secretary others, and that a member, when after wards called upon for his assessment, refused to pay on other grounds, is sufficient to go to the jury upon the question whether he had notice. Jones v. Sisson, (6 G.) 72 288. 13. If the by-law and the policy provide for a notice to the policy holder by mail, it is no excuse that the notice did not reach him, if proof is given that it was duly mailed. Lothrop ». Greenfield Ins. Co., (2 A.) 84 82. 14. Where they provide only for notice left at his abode, or personal notice, and no such notice is given, but a notice is sent by mail, which he receives, and thereupon has a corres- pondence with the secretary, in which he makes no objection to the mode of giving the notice, he waives the objection. Uollistert). Quincylns. Co., 118 478. 15. No formal action is necessary to suspend the risk; it is suspended by the failure to pay, as required; and if the property is burned dur- ing the suspension, the company is not liable. Holhster «. Quincylns. Co., 118 478. 16. But a refusal to pay an illegal assessment will not either avoid the policy, or defeat a sub- sequent valid assessment. Ex parte People's Eq. Ins. Co., (9 A.) 91 319. 17. Where the by-law provides for cancel- ment within a certain time after receipt of notice of an assessment, and notice was given to a policy holder by mail, and not received by him, and the directors afterwards voted to can- cel all policies, the holders of which had not paid the assessment, and notice of the cancel- ment was sent by mail and not received, it was held that the policy was not cancelled. Mullen v. Dorchester Ins. Co., 121 171. 18. A notice that if an assessment is not paid within a certain time the policy would be cancelled, does not cancel the policy in case of nonpayment within the time. Lyman «. State Ins. Co., (14 A.) 96 329. 19. As to the rights of a member of the Mas- sachusetts Mutual Fire Insurance Company to surrender his policy, upon alienating the prop- erty, and the liability of the company in case of alienation without surrender, see Sullivan v. Mass. Ins. Co., 2 318; Stetson «. Mass. Ins. Co., 4 330. 20. A person, who has neither taken out a policy, nor signed an application or a premium note, is not a member, although his policy has been made out and is ready for delivery. Real Estate Ins. Co. v. Roessle, (1 G. 67 336; Comm. v. Mass. Ins. Co., 116. 11 y 21. It is no defence to an action by the com- pany on a premium note, that the company is insolvent, or that it voted to cancel all its poli- cies, if the insured did not assent to the cancel- ment. Alliance Ins. Co. v. Swift, (10 C.) 64 433. 22. Neither the insolvency of the corporation, nor the cancelment of its policies, will deprive the corporation of the right, or relieve its officers of the duty, to assess upon those who were members, all losses which occurred while they were members. Alliance Ins. Co. ■». Swift, (10 C.) 64 433; Marblehead Ins. Co. v. Underwood, (3 G.) 69 210; Payette Ins. Co. v. Puller, (8 A.) 90 27; Comm. v. Me- chanics' Ins. Co., 112 116. 23. St. 1864, Ch. 196; P. S., Ch. 119, § 138, as to incorporating conditions in the policy, does not apply to the obligations of the insured as a member of the corporation. Comm. v. Mass. Ins. Co., 112 116. 24. A member is not discharged from liability upon his deposit note, by the cancelment of his policy by a general corresponding agent of the company, without proving his authority. Marblehead Ins. Co. v. Underwood, (3 G.) 69 210. 25. A member is liable to assessment, although he had not, or has ceased to have, an insurable interest in the property, if his policy remains uncancelled. New England Ins. Co. v. Belknap, (9 C.) 63 140; Comm. v. Mass. Ins. Co., 112 116. 26. An assignee of a policy, who has been substituted to all the rights of the original in- sured, with the assent of the company, thereby becomes a member, and is liable to assessment. What acts or facts will constitute such a substi- tution, in any particular case, must be deter- mined by the provisions of the contract, or the by-laws or rules of the corporation. Comm. «. Mass. Ins. Co., 112 116, 27. But where, upon the sale of real property, the purchaser gives back to the seller aJinort- gage upon the property, and assigns to him the policy as security, and the transfer is recorded upon the books of the company, the mortgagor is the person liable to assessment. Cumings «. Hildreth, 117 309. 28. Upon the question, under what circum- stances an assignor of a policy continues to be, or an assignee is rendered, a member of the company and liable to assessment, see Bowditchlns. Co. e. Buffum, (2 G.) 68 550; Cumings v. Sawyer, 117 30; Boot & Shoe Man. Ins. Co. v. Melrose Cong. Soc, 117 199; Cumings n. Hildreth, 117 309. 29. As to the construction of a special agree- ment by members, to furnish a fund to a mutual insurance company, which the court held was a mere contingent agreement, discharged by INSURANCE COMPANY, II, (2), (3). 843 the insolvency of the company, and its conse- quent inability to furnish insurance to the sub- scribers, as contemplated. „,. .. Pendergast «. Com'l Ins. Co., (15 G.) 81 257. (2.) Classification of risks; deposit notes. 30 Where the risks have been classified, as provided by the statute, the directors are not liable for omitting to assess subsequent policy holders, to satisfy a judgment upon a note, given for a loss upon a policy in a class, the business of which has been closed, and all its policies cancelled. Upton «. Pratt, 103 551. 81. The company cannot maintain an action to recover an assessment upon one class only of policy holders, without proving the classifica- tion, as provided for by statute. People's Eq. Ins. Co. v. Arthur, (7 G.) 73 267. 32. The directors may divide the property in- sured into classes, from time to time, as the policies arc issued, and after the statutory amount is subscribed in each class the policies will take effect; and one who takes out a policy thereafter cannot object, in an action to recover an assessment, to the regularity of the proceed- ings. Citizens' Ins. Co. v. Sortwell, (8 A.) 90 217. 33. Subscriptions for insurance in a particu- lar class, made shortly before the adoption by the company of the classification act, may, in an action to recover an assessment, be taken as part of the statutory amount, after the lapse of ten years, without objection from the company or the persons insured. Citizens' Ins. Co. v. Sortwell, (8 A.) 90 217. 34. As to the general character of a deposit note, and the rights of the directors of the com- nany with respect thereto. Coram. ». Dorchester Ins. Co., 112 143. 35. In making an assessment, the deposit notes must be first exhausted before resorting to the further liability, imposed by law, upon the policy holders as members of the corpora- tion. Comm. v. Monitor Ins. Co., 112 150. See, also, Appleton Ins. Co. v. Jesser, (5 A.) 87 446. 36. The only difference, in this respect, be- tween absolute and contingent funds, consists in the degree to which the collection of such notes is placed within, or removed from, the dis- cretion of the directors, by the form of the notes or the by-laws of the company. Comm. v. Monitor Ins. Co. , 112 150 ; explaining Appleton Ins. Co. v. Jesser, (5 A.) 87 446. 37. An order for the collection of the deposit notes in full, without the form of an assess- ment, is valid, where the by-laws and the form of the notes do not require an assessment. Shawmut Ins. Co. v. Stevens, (9 A.) 91 332. 38. So an order for the collection of the de- posit notes in full, and a further uniform per- centage upon the members' contingent liability, is valid under the same circumstances. Long Pond Ins. Co. ». Houghton, (6 G.) 72 77. 39. But where the by-laws do not make the deposit notes absolute funds, but, on the con- trary, provide for assessments of such notes, they may be assessed in the usual manner. Payette Ins. Co. v. Puller, (8 A.) 90 27; Citizens' Ins. Co. v. Sortwell, (10 A.) 92 110. »40. A deposit note which is part of the abso- lute funds, may be collected to pay losses, which accrued before the maker became a member of the company. Long Pond Ins. Co. ■». Houghton, (6 G.) 72 77. 41. In an action upon such a note, where it is payable on demand, it is unnecessary to allege, in the declaration, that the directors have called for the full amount and notified the defendant thereof. Shawmut Ins. Co. v. Stevens, (9 A.) 91 332. 42. A member may be assessed the whole amount of his deposit note, although he has, an insurable interest in part only of the property- insured, and he is estopped from setting up his want of insurable interest. N. E. Ins. Co. v. Belknap, (9 C.) 63 140. C3.) Assessment. [See, also, ante, II, (1); II, (2).] 43. The provisions of the G. S., as to the mode of assessing the members of insolvent companies, do not deprive a company previ- ously chartered, of the right to proceed accord- ing to its charter. Comm. ». Mass. Ins. Co., 112 116. 44. Where an assessment has been adjudged to be illegal, sums paid upon that assessment may be included in a new assessment, as claims against the company. In re People's Eq. Ins. Co., (9 A.) 91 319. 45. In making such new assessment, where, two years previously, a large debt was due from the company, and many of the members who paid under the former assessment have become exempt by lapse of time, the whole debt may be taken as a unit, and assessed upon all the policies then outstanding. In re People's Eq. Ins. Co., (9 A.) 91 319. 46 In making such assessment for just claims accruing, within two years, the aggregate of expenses and sums received upon the illegal assessment, in each year, may be divided by- twelve, to ascertain the average amount to be raised for each month, and the losses for the month added. The sum thus ascertained may be assessed upon the policies existing during that 844 INSURANCE COMPANY, IT, (3). month, in proportion to the amonnts of prem- iums therefor, applicable to that month. In re People's Eq. Ins. Co., (9 A.) 91 319. See, also, People's Ins. Co. 0. Allen, (10 G.) 76 297. 47. Return premiums on cancelled policies may be included in an assessment upon deposit notes, where the by-laws so provide. Fayetts Ins. Co. v. Puller, (8 A.) 90 27; as explained in Comm. 11. Mass. Ins. Co., 112 116. 48. But in the absence of such a provision, an assessment for unearned premiums is illegal. Comm. ■». Mass. Ins. Co., 112 116; Comm. v. Mechanics' Ins. Co., 112 192; Comm. ■». Mass. Ins. Co., 119 45; overruling dictum, in Citizens' Ins. Co. 0. Sortwell, (10 A.) 92 110. 49. An assessment upon all the members, to pay for losses and expenses, part of which accrued before some become members, is void as to the latter, but valid as to the others. Long Pond Ins. Co. v. Houghton, (6 G.) 72 77. 50. An assessment made in good faith and substantially correct is binding, notwithstand- ing small errors or omisssions, upon a member not materially affected by the errors. Marblehead Ins. Co. 0.Underwood, (3 G.) 69 210; In re People's Eq. Ins. Co., (9 A.) 91 319. See, also, People's Ins. Co. 0. Allen, (10 G.) 76 297; Fayette Ins. Co. 0. Fuller, (8 A.) 90 27. 51. But an intentional omission of some members liable, invalidates the assessment as to all, although the liability of those omitted was computed, the directors intending to assess them upon the expiration of their policies. Marblehead Ins. Co. 0. Hayward, (3 G.) 69 208. 52. An assessment is not rendered invalid, by the fact that the proportions between the cash premiums and the deposit not s varied at dif- ferent times, as against a member who has suffered no damage. Marblehead Ins. Co. v. Underwood, (3 G.) 69 210; Long Pond Ins. Co. 0. Houghton, (6 G.) 72 77. 53. The amount for which an assessment may be laid, may include a reasonable margin for interest, expenses, failure to collect assess- ments, and the like. Jones 0. Sisson, (6 G.) 72 288; Fay- ette Ins. Co. 0. Fuller, (8 A.) 90 27; In re People's Eq. Ins. Co., (9 A.) 91 319. 54. But an unreasonable margin invalidates the entire assessment. People's Eq. Ins. Co. 0. Babbitt, (7 A.) 89 2:^5; Traders' Ins. Co. v. Stone, (9 A.) 91 483. 55. See, however, criticizing and in part overruling the foregoing cases, Comm. v. Dorchester Ins. Co., 112 142. 56. As to the proper method of computation, where the company has issued policies running for one year, three years, and five years, re- spectively, with premiums for the longer terms, less than the proportionate increase for the shorter terms, see Citizens' Ins. Co. v. Sortwell, (10 A.) 92 110. 57. It was held, however, in later cases, that assessments could not be graduated by the age of the policies; and the liability of each policy holder to assessment is not in accordance with the proportion of the expired to the unexpired term of his policy. Comm. i>. Mass. Ins. Co., 112 116; Comm. v. Mechanics' Ins. Co., 112 192. 58. An assessment is not invalid, because it includes losses occasioned by bad investments, nor because it has been delayed by a previous illegal assessment. People's Ins. Co. 0. Allen, (10 G.) 76 297. 59. Nor by a delay for any othef sufficient cause, if not unreasonable. Marblehead Ins. Co. v. Underwood, (3G.) 69 210. 60. And the company is not required to make a separate assessment after every loss; but it may adopt a rule, approximating as nearly as is practicable and reasonable to that method New England Ins. Co. 0. Belknap, (9C.) 63 140. 61. The company, after voting to take no more risks, may resume business and lay assess- ments. Traders' Ins. Co. ■». Stone, (9 A.) 91 483. , 62. A vote cancelling outstanding policies, to take effect at a future day, does not prevent the directors from laying an assessment after that day. Fayette Ins. Co. 0. Fuller, (8 A.) 90 27. 63. Under G. S., Ch. 58, § 54; P. S., Ch. 119, § 99, the statement of the condition of the eompany may be recorded in the book in which the annual statements are recorded; and if signed by some of the directors, and it does not appear that any others voted for it, the pre- sumption is that all who voted for it signed it. Citizens' Ins. Co. 0. Sortwell, (10 A.) 92 110. 64. If a committee of the directors have made a report, recommending an assessment on the deposit notes, and stating the amount and all necessary details, a vote of the directors to ac- cept and adopt the report, suffices to authorize the laying of the assessment. Citizens' Ins. Co. 0. Sortwell, (10 A.) 92 110. 65. St. 1863, Ch. 249, § 4; P. S., Ch. 119, § 100, allowing the directors to make two assess- ments, between which members may elect, is permissive merely, and does not apply to an assessment to close the company's affairs. Comm. «. Mass. Ins. Co., 112 116. 66. If no provision as to calling a meeting of the directors is prescribed by the by-laws, ex- cept that the secretary shall give notice of it, an assessment upon the deposit notes may be made at a meeting of which the secretary, by order of the president, has given notice, al- INSUEANCE COMPANY, II, (4); in. 845 Fayette 27. 67. And where the by-laws provide that an assessment may be ordered at a meeting called for the purpose, it may be laid at a regular monthly meeting, held pursuant to the statute and the company's by-laws, of which no special notice was given. Bay State Ins. Co. v. Sawyer, (12 C.) 66 64. (4.) Ratification of assessment; action therefor. 68. The provisions of St. 1862, Ch. 181; St. 1863, Ch. 249; P. S., Ch. 119, §§ 101 etseq., as to the proceedings for the ratification of an as- sessment, are constitutional. Hamilton Ins. Co. v. Parker, (11 A.) 93 574. 69. After a decree ratifying an assessment, one whose policy terminated two years pre- viously, cannot object, in an action by the com- pany, to recover the sum assessed upon him, that the absolute funds had not been exhausted, and that if he is liable at all, it is for a smaller sum. Hamilton Ins. Co. «. Parker, (11 A.) 93 574. 70. The statute applies only to an assessment made by authority of the statute, not to an assess- ment or call made by virtue of the contracts in die deposit notes. Comm. «. Dorchester Ins. Co., 112 142. 71. The auditor's report is intended to furnish to the court the means and information to en- able it to pass upon the questions submitted to it for determination; it is like the report of a master in chancery, and is not prima facie evidence. Comm. v. Mechanics' Ins. Co., 112 192. 72. A member, sued for an assessment, can- not object that the company gave no notice to the secretary of the Commonwealth of its ac- ceptance of its charter. Traders' Ins. Co. v. Stone, (9 A.) 91 483. 73. Where a deposit note is made payable to the company, or its treasurer for the time being, the treasurer may sue thereupon, although the by-laws provide that the directors may sue for the deposit notes. Jones v. Sisson, (6 6.) 72 288. i 74. And where it also provides for payment, in such sum or sums as may be called for by a vote of _ the directors, or by the treasurer, a declaration averring a promise to pay t-> the company, and that the sum sued for has been duly demanded and called for, is sufficient. Shawmut Ins. Co. t>. Stevens, (9 A.) 91 332. 75., Under a declaration alleging that the de- iendant, in consideration of the receipt of a policy, agreed to pay his proportion of losses and expenses, not exceeding a certain sum, while he was a member, the company may re- cover any amount duly assessed within that sum; and the policy is admissible in evidence, to prove the plaintiff's claim. People's Ins. Co. v. Clark, (12 G.) 78 165. 76. So a deposit note, reciting the issuing of a policy, is prima facie evidence that a policy has been issued, and the admission of an ab- stract thereof is not ground for a new trial. N. E. Ins. Co. ii. Belknap, (9 C.) 63 140. 77. Showing a .bill for the assessment by a. person authorized to demand payment, asking the member to pay it, and his refusal to pay it, constitute a sufficient demand. People's Ins. Co. ■». Clark, (12 G.) 78 165. 78. The company is bound to prove an assess- ment, made pursuant to its act of incorporation and by-laws. Atlantic Ins. Co. «. Fitzpatrick, (2 G.) 68 279; People's Ins. Co. v. Arthur, (7 G.) 73 267., 79. And an answer denying that "any such assessment has been made, as set forth in the plaintiff's declaration." authorizes the defend- ant to litigate the validity of the assessment. People's Ins. Co. v. Arthur, (7 G.) 73 267. 80. A foreign insurance company must show compliance with the statutes, relating to its right to issue a policy. Jones «. Smi h, (3 G.) 69 500. [See, also, post. III.] 81. In an action to recover an assessment, the record of losses kept by the company is prima facie evidence that they have occurred. People's Ins. Co. v. Allen, (10 G.) 76 2.97. 82. "Whether the company's books furnish sufficient data for a correct assessment, is for the jury. Marblehead Ins. Co. v. Underwood, (3. G.) 69 210. III. Insolvent Insurance Company. [See, also, Eeceivbh.] 83. A decree, perpetually enjoining a mutual insurance company from proceeding with its business, and sequestering its property, made under G. S., Ch. 58, § 6; P. S., Ch. 119, § 14, terminates the liability of the company for any future losses. Comm. v. Mass. Ins. Co., 119 45. 84. Where the property of an insurance com- pany, either stock or mutual, has been seques- tered and placed in the hands of receivers, under that statute, a loss previously sustained may be set off against a debt due to the company, even if the company holds collateral security. Comm. v. Shoe & L. D. Ins. Co., 112 131. 85. Where a mutual company becomes insol- vent, the holder of an unexpired policy, the 846 ItfSUEANCE COMPANY, III; IV. cancelment of which is rendered , necessary thereby, has no right of set off, or of recoup- ment, or claim for return premium or for damages, on account of the unexpired term. Comm. v. Mass. Ins. Co., 113 116. 86. But the holder of a policy cancelled before the company's insolvency, who, under his contract with the company, is entitled to a return premium, has a valid claim to share in the assets in the receivers' hands. Comm. «. Mass. Ins. Co., 112 116. 87. And previously accrued profits, which have been credited to the policies, do not belong to the policy holders, but are funds for the payment of losses. Comm. v. Mass. Ins. Co., 112 116. 88. After receivers have been appointed, and an injunction issued under the statute, neither the receivers nor the corporation, either stock or mutual, can be charged by trustee process. Columbian Book Co. v. DeGolyer, 1 15 67. 89. Nor can a creditor apply by petition to reach the funds in the receiver's hands. Comm. 1>. Hide & Leather Ins. Co.. 119 155. 99. Where losses, upon policies of a mutual company, will exhaust the company's absolute funds, and an assessment upon the contingent liability of the members proves to be more than sufficient to pay them, the surplus, in the absence of any special provision to the contrary in the rules of the company, must be repaid to the members by whom the assessment was paid. Comm. ». Mass. Ins. Co., 119 45. 91. In such a case, the receivers cannot retain any part of the surplus, for the purpose of meeting future losses. Comm. «. Mass. Ins.. Co., 119 45. 92. Nor is an insured, who has sustained losses, entitled to payment of interest out of such surplus. Comm. v. Mass. Ins. Co., 119 45. 93. "Where receivers of a mutual company company were appointed, under the statute, and assessments were levied upon the policy holders, who employed counsel to contest the validity thereof; and the receivers, after paying losses and claims; had a large surplus in their hands, which was to be distributed to the policy holders; it was held that a petition would not lie in favor of the counsel, to be paid out of the surplus for his services. Comm. v. Mechanics' Ins. Co., 122 431. 94. Where receivers were appointed, and the company enjoined from doing any business, ex- cept acts necessary to continue its corporate existence, and to lay such assessments as might be necessary to pay its liabilities; the president will be entitled thenceforth to reasonable com- pensation for his services* not to the sum there- tofore fixed by the vote of the corporation as his salary. Comm. v. Eagle Ins. Co., (14 A.) 96 344. 95. Where, just after a fire which rendered a mutual qompany insolvent, one who had agreed to take policies, which had been signed and entered, but not delivered, called at the company's office; and upon the expression of the secretary of an opinion that the company was sound, took tue policies, paid the cash pre- miums a.;d gave the deposit notes; and nine days afterwards the company was enjoined; it was held, upon his petition to compel the re- ceivers to return the premiums, and to enjoin them from collecting an assessment upon him, that he was not entitled to relief. Comm. v. Mechanics' Ins. Co., 120 495. 96. For a ruling as to the effect of the ap- pointment of a receiver of, and an injunction against, a foreign stock company, in the foreign jurisdiction, upon the power of a general agent to receive a premium, see Bice v. Barnard, 127 241; cited, In- surance, art. 67. 97. The receiver of an insurance company has no power to dispense with rules of law as to the allowance of claims against the company. Evans v. Trimountain Ins. Co., (9 A.) 91 329. 98. Payments to the receiver of a mutual in- surance company, upon an assessment which is afterwards adjudged to be void, are so far vol- untary that they cannot be recovered back; and he and his sureties are liable therefor to the c r 6 d i t o r s Wilde v. Baker, (14 A.) 96 349. IV. Foreign Insprance Company. [See ante, arts. 80, 96; and Insurance, I, (5).] 99. A nonresident may maintain an action here against a foreign insurance company doing business here, upon a contract made, and the subject matter whereof is situated, in another state, althdugh the process is served upon the insurance commissioner under St. 1878, Ch. 36; P. S., Ch. 119, § 202. Johnston 1>. Trade Ins. Co., 132 432. 100. The provisions of B. S., Ch. 37, § 40, as to depositing a copy of the charter, applied to foreign mutual companies. See now G. S., Ch. 58, § 71; P. S., Ch. 119, 8 199. General Ins. Co. v. Phillips, (13 G.) 79 90. 101. In an action by a foreign mutual com- pany to recover an assessment, if the answer denies that a copy of the charter was deposited with the proper officer, the burden upon the company is to prove that fact; and it is not sus- tained by the officer's certificate, which does not show that such deposit was made before the date of the deposit note. Washington Ins. Co. ■». Chamberlain, (16 G.) 82 165. 102. So as to the other provisions, forbidding a foreign company to insure here, without com- plying with certain conditions. Jones «. Smith, (3 G.) 69 500. See, also, Williams v. Cheney, (3 G.) 69 215; Washington Ins. Co. v. Dawes, (6 G.) 72 376. 103. But if the action is brought by a bona fide holder of the note, without notice, a com- INSUEANCE COMPANY, IV— INTEEEST, I. 841 pliance with the provisions of the statute will be presumed, in the absence of evidence to the contrary. Williams v. Cheney, (3 G.) 69 Jones v. Smith, (3 G.) 69 500. 215: 104. The provision of the R. S., restricting a foreign company from insuring in one risk more than one tenth of its capital, did not apply to a mutual company. Atlantic Ins. Co. v. Concklin, (6 G.) 72 73. 105. The failure of a foreign company to file a statement on the first Monday of January, as required by the R. S., did not avoid a contract, made after the actual filing on a subsequent day. Atlantic Ins. Co. ■». Concklin, (6 G.) 72 73. 106. As to the sufficiency of the statement. Atlantic Ins. Co. ■». Concklin, (6 G.) 72 73. 107. Under the E. S., a contract of insurance by a foreign mutual company, through an agent here, was invalid, unless the company had published a statement of its affairs in a news- paper of the county. Washington Ins. Co. ». Dawes, (6 G.) 72 376. 108. As to the sufficiency of the statement. Washington Ins. Co. e. Dawes, (6 G.) 72 376. 109. If, in an action by such a company upon a deposit note, the plaintiff's evidence of a demand shows that the defendant refused to pay, because the plaintiff's agent came to him in this Commonwealth, and induced him to insure by fraudulent representations, such evi- dence is competent to show that the contract was made here, and so within the statute. Washington Ins. Co. «. Dawes, (6 G.) 72 376. 110. A provision in the charter of a foreign mutual company, that a member neglecting to pay an assessment on his deposit note, shall be liable for. the full amount, the amount not needed to be returned to him, etc., will be enforced in an action here. Jones v. Sisson, (6 G.) 72 288. 111. St. 1861, Ch. 186, known as the "non- forfeiture law," applied to foreign life insurance companies doing business here. But see sub- sequent statutes, incorporated into P. S., Ch. 19, §§159 to 166. Holmes v. Charter Oak Ins. Co., 131 64. 112. The Connecticat Mutual Benefit Com- pany is within St. 1867, Ch. 267, § 5; P. 8., Ch- 119, § 209. Comm. ii. Wetherbee, 105 149. [See, also, ante, arts. 2, 3] 113. Where the agent of a foreign insurance company makes an insurance without comply- ing with the statute, the insured cannot recover Back the premium. Leonard v. Washburn, 100 251. mi I ^ ut a note ' g^ ven for trie premium upon sucn an insurance, is void in the hands of the payee, or an indorsee who took it as collateral security, for a debt since paid, although paid after the action upon the note was commenced. Rocheti. Ladd, (1 A.) 83 43li; Drink- house v. Surette, (1 A.) 83 443, note. 115. Aliter, in the hands of a bona fide holder for value without notice. Williams t>. Cheney, (8 G.) 74 206. 116. Under St. 1854, Ch. 453, § 36, neither the omission of a foreign company to appoint a general agent here, without notice from the treasurer of the Commonwealth, nor the fact that the capital stock is less than required by § 31, will prevent the corporation from main- taining an action upon a premium note. See now St. 1878, Ch. 36; P. S., Ch. 119, § 199, etc. Provincial Ins. Co. v. Lapsley, (15 G.) 1 262; Lester v. Webb, (5 A.) 87 569. 117. Under G. S., Ch. 58, §§ 72, 74, an insur- ance by a foreign company, without complying with the requisites of that chapter, is valid, although made through an agent who is not a general agent under § 68. See, now, P. S., Ch. 119, § 200. Hartford Ins. Co. v. Matthews, 102 221. 118. A foreign mutual company, which has issued a policy to a citizen without complying with § 68 of that chapter, may, upon subse- quently appointing such an agent, maintain an action to recover an assessment laid before such appointment. National Ins. Co. •». Pursell, (10 A.) 92 231. Interest. I. General Rules. II. Rtjles in particular Cases. (1.) Restraint by judicial proceedings. (2.) Land taken for public use. (3.) Trust. (4.) Certain contracts. III. Bate and Time of Computation. iv". rulings since the repeal op the Usury Law. [For cases under the repealed usury statute, see Usury, k or other rulings directly upon the subject of interest, or upon questions connected therewith, see Damages; also the titles of the different actions and suits in equity; also Advancement; Agency, III; V, (1); Application op Payments; Assign- ment, V ; Bank; Bankruptcy; Bill or Exchange and Promissory Note; Bond; Conflict op Laws, III, (4); Contract; Corporation; Devise and Bequest, VI; Evidence; Exception; Executor and Administrator; Guardian; Highway; In- solvent; Insurance; Judgment; Mortgage; Notice and Demand; Partnership; Railroad; Surety; Taxation; Trustee and Cestui que Trust; Trustee Process.] I. General Rules. 1. Interest is to be allowed, where the law by implication makes it the duty of the party to pay over the money without a previous demand, or where there has been a default of payment, according to an agreement, express or 848 INTEEEST, I. implied, to pay on a day certain, or after demand, or after a reasonable time. Dodge v. Perkins, (9 P.) 26 368; Foote «. Blanchard, (6 A.) 88 221. 2. Where money is obtained and held by fraud, interest should be calculated from the time when it was received. Dodge v. Perkins, (9 P.) 26 368. See, also, Wood v. Bobbins, 11 504; Atlantic Bk. v. Harris, 118 147. 3. But obtaining money from a bank by an over draft, is not within the rule, if it is not wrongfully obtained or wrongfully withheld. Hubbard v. Charlestown Br. B. B., (11 Met.) 52 124. 4. Upon breach of an agreement to deliver a certain quantity of certain goods, at a certain rate, the party in default must pay interest. Thomas v. Wells, 140 517. 5. Interest is not recoverable upon an open and running account for work and labor, goods sold, or the like, unless there is some contract or usage to pay interest, or the defendant is a wrong doer in acquiring or obtaining the money. Hunt v. Nevers, (15 P.) 32 500; Goff v. Behoboth, (2 C.) 56 475, explaining Barnard «. Bartholomew, (23 P.) 39 291. See, also, Winsor v. Savage, (9 Met.) 50 346. 6. As to what is sufficient evidence of such a custom, see Von Hemert v. Porter, (11 Met.) 52 210; Fisher v. Sargent, (10 C.) 64= 250. 7. Where an interest account is kept between the parties, interest is allowed on all the items, without a special agreement. Cole t>. Trull, (9 P.) 26 325. 8. Where a demand and refusal are necessary to enable the party to recover, there must, to lay the foundation of a claim for interest, be a sep- arate and distinct demand for a sum of money, which is afterwards admitted or proved to be due. Goff v. Behoboth, (2 C.) 56 475. See, also, Stevens v. Goodell, (3 Met.) 44 31; Oriental Bk. v. Tremont Ins. Co., (4 Met.) 45 1; Hubbard v. Charlestown Br. E. B., (11 Met.) 52 124. 9. And a demand for a debt due, together with another claim, which is afterwards proved or admitted not to be due, will not lay the foundation of a claim for interest. Goff v. Behoboth, (2 C.) 56 475. 10. Calling for, and taking security for a debt, may be a sufficient demand. Etheridge v. Binney, (9 P.) 26 272. [See, further, as to a demand as the foundation of a claim for interest, Notice and Demand, and. poet, J3I. And for illustrations and applications of the distinction between interest, as d e by the terms of the contract, and interest awarded as d images for withholding money due under a contract, see, also, post, II, (4); III.] 11. An offer, in good faith, to pay the sum actually due, although not a technical tender, will prevent the accruing of interest as damages. Goff v. Behoboth, (2 C.) 56 475. See, also, Suffolk Bk. o. Worcester Bk., (5 P.) 22 106. 12. Where one maUes a payment at the ex- press or implied request of another, the former is entitled to interest from the time of the pay- ment. French c. French, 126 360. See, also, Weeks v. Hasty, 13 218; Gibbs «. Bryant, (1 P.) 18 118; Ayer v. Tilden, (15 G.) 81 178. 13. Under an agreement to "manage" cer- tain property and cconvey it to another, interest is chargeable [in favor of the promisor, for all advances and payments in managing the prop- erty. French v. French, 126 360. See, also, Capen v. Crehore, (23 P.) 40 496. -4. In an action by an officer against an at- torney, for falsely representing that he had authority to indemnify the plaintiff, the jury may allow interest on the sums which the plain- tiff has been compelled to pay. Jones ii. Wolcott, (2 A.) 84 247. 15. Where a statute authorizes a town to con- struct certain works, to assess the expenses upon land owners, and collect the assessment, and provides that after collection and approval of the work, the town shall be liable to those furnishing the materials, labor, etc., such per- sons cannot have interest on their demands, until the assessment is collected. Hendrick v. West Springfield, 107 541. 16. Payment of the principal of an interest- bearing debt, either in money or by a new security, does not extinguish the debtor's lia- bility for the interest, if it is agreed that such payment or renewal shall not have that effect; and there is no distiction between a case where the interest is payable at a different time, or at the same time as the principal. Eames ». Cushman, 135 573. See, however, Gage ». Gannett, 11 217. 17. And judgment for the interest does not extinguish the liability for the principal, although the latter was also due. Sparhawk t>. Wills, (6 G.) 72 163; Andover Sav. Bk. v. Adams, (1 A.) 83 28. 18. Where one of two joint owners of vessels and cargoes takes charge of the vessels and their outfits and repairs, and the other attends to the providing of the cargoes and settling for them, and they agree that interest shall be cast upon their accounts, the long neglect of one of them to render his accounts, although frequently requested, does not deprive him of interest. Winsor v. Savage, (9 Met.) 50 346. 19. So of a long neglect to enter notes upon which he paid interest. Winsor v. Savage, (9 Met.) 50 346. 20. Where, in ejectment for a term, the auditor fixed the fair value of the lease at a yearly sum, it was held that the plaintiff was entitled to interest on each yearly sum, from the time when he might have realized it, if he had not been ejected, but. without quarterly rests, although the rent was'payable quarterly. Hodgkins v. Price, 141 162. 21. Where A denied his liability for the destruction of B's property by A's negligence, and C's property was destroyed by the same act, for which C recovered; whereupon B INTEREST, II, (1), (2), (3). 8i9 brought an action against A, in -which A admitted his liability, it was held that B might, in the discretion of (he court, be allowed inter- est on the sum ascertained as his loss. Frazer v. Bigelow Carpet Co., 141 126 II. Rules in particular Cases. (1,) Restraint by judicial proceedings. 22. Before the statute, it was held that where the plaintiff in an action of contract was delayed of his judgment, by an unsuccessful motion of the defendant for a new trial, he should have interest on his verdict until judg- ment. Vail v. Nickerson, 6 262; Comm. v. Boston & M. Eailroad, (3 C.) 57 25. 23. In adjusting the claims against an insolv- ent bank, in the hands of receivers, under the E. S., those creditors who had demanded pay- ment of the bills, were not allowed the 24 per cent, interest, but six per cent, interest from the demand. Atlas Bk. v. Nahant Bk., (3 Met.) 44 581. 24. Where the ad damnum is not large enough, to include in the judgment interest, accruing during the pendency of a petition of a subse- quent attaching creditor, to vacate the attach- ment, the latter is not liable to the plaintiff for such interest. Guild v. Guild, (2 Met.) 43 229. 25. Where a suit is commenced, which either party may bring to trial, delay in prosecuting it, however unreasonable, will not affect the right to or create a liab.lity for interest. Drury v. Midland Railroad, 127 571. 26. Where the person summoned as trustee in a trustee process is indebted to the principal defendant upon a demand, interest upon which would be recoverable by the latter only as damages, and not as part of the debt, interest is not deemed to accrue against him during the pendency of the trustee process. Rennell®. Kimball, (5 A.) 87 356; Smith v. Flanders, 129 3. Tremont Ins. Co. , (4 Met.) 45 1. 29. So where he uses the money during the pendency of the proceedings. Adams e. Cordis, (8 P.) 25 260. See, also, Hubbard v. Charlestown Br. E- R., (11 Met.) 52 124; Norris «. Mass. Ins. Co., 131 294. Vol. I— lot 30. The rule excusing the trustee extends to a case, where the principal debtor had recov- ered judgment. Prescott v. Parker, 4 170. 31. Under the insolvent act of 1836, a creditor who became a party to the assignment, after the first dividend was made, but before the second was declared, was entitled to his pro- portion of the first dividend, if there was a sufficient surplus to pay him, but without inter- est thereupon. Peck v. Stimpson, (20 P.) 37 312 (2.) Land taken for public use. __|See, also, Highway, IV, (i); Railroad, II, (7); Town and City, VI.] 32. "Where land is taken under the authority of a statute by a corporation, the land owner's right to damages is complUe, when the location is made; and the jury may allow interest upon the amount ascertained as damages, from that time. Old Colony Railroad «. Miller, 125 1. See, also, Whitman v. Boston & M. Railroad, (7 A.) 89 313; Reed d. Han- over Br. Railroad, 105 303; Chandler o. Jamaica P. Aqueduct, 125 544; Drury v. Midland Railroad, 127 571. 33. Where land is taken for a "private way," the jury mr.y include in the damages interest from the taking of the land. Kidder «. Oxford, 116 165. 34. Where land is taken to widen a street, interest can be allowed only from the time of the actual entry upon the land, in the absence of evidence of any special damage, or expense, or lo s, or advantage to the owner, by proceed- ings before the entry, which has not been con- sidered in the damages. Edmands v. Boston, 108 535. See, however, Parks v. Boston, (15 P.) 32 198. (3.) Trust. [See, also, Devtse and Bequest, VI; Executor and Administrator; Guardian; Trust.] 35. In the settlement of a trustee's account, he is allowed interest on money advanced when he was not in funds, but at the rate of six per cent only, unless there was an agreement for a higher rate. Urann v. Coates, 117 41. 36. But in another case, he was allowed compound interest. Barrell ®. Joy, 16 221. 37. Money received by a trustee must be first applied to extinguish accrued interest Urann v. Coates, 117 41. 38. Where, upon the settlement of a trustee's account, he is charged with sums not included in it, interest is to be computed thereupon, as if they had been charged when they ought to have been charged. Blake v. Pegram, 109 541. 850 INTEREST, II, (3), (4). 39. An executor or administrator, who neces- sarily advances money when he is not in funds, is entitled to interest thereupon. Jennison v. Hapgood, (10 P.) 27 77. See, however, Storer v. Storer, 9 37. 40. Where an executor or other trustee has made a profit out of the trust fund, for which he refuses or is unable to account, he should be charged with compound interest, or annual rests should be made. _ Jennison v. Hapgood, (10 P.) 27 77. See, also, Fay v. Howe, (1 P.) 18 527: Robbins®. Hay ward, (1 P.) 18 528, note. 41. But where an executor bought at his own sale wild lands of the testator, and the heirs elected to consider him the purchaser, and ho had made no profit, and the lands were un- salable, and the title doubtful, he was charged only with simple interest. | Jennison «. Hapgood, (10 P.) 27 77. 42. And where an executor or administrator has made use and profit of the money in his hands, pending an appeal as to the disposition thereof, he is chargeable with interest there-" upon. Stearns v. Brown, (1 P.) 18 530. 43. But where he has not used it, or made a profit, he is not chargeable with interest for de- laying a settlement, especially if the persons interested in the estate are also chargeable with laches. Lamb v. Lamb, (11 P.) 28 371; For- ward e. Forward, (6 A.) 88 494. 44. An executor having a demand against the testator, upon which the latter told him to charge reasonable interest, will not be allowed compound interest thereupon in the settlement of his account. Jennison t. Hapgood, (10 P.) 27 77. 45. An administrator was allowed only eighteen months' interest upon a debt due him from the intestate, on the ground that he ought in that time to have sold land to pay it. Ex -parte Richmond, (2 P.) 19 567. 46. One who is administrator of two estates, one of which is indebted to the other, cannot charge interest on the debt, after his liability to pay it has ceased. Dickinson v. Arms, (8 P.) 25 394. 47. If an executor, after one year has elapsed from the date of his bond, delays paying the debts, when he has money to do so, he cannot be allowed for the interest which he thus suffers to accrue. Forward v. Forward, (6 A.) 88 494. 48. In an action on an administration bond, to recover the balance of an execution issued against the administrator for waste, interest was allowed on the debt and costs, and the partial payments were first applied to keep down the interest. Fay v. Bradley, (1 P.) 18 194. 49. An executor is chargeable with simple interest, only where his conduct, although wrongful, is waste merely, not a case where funds were used by him which ought to have been invested, or income withheld which ought to have been paid over or re-invested. Chapin v. Waters, 116 140. 50. And an executor is not chargeable with interest on money in his hands, except where he actually uses it, or is guilty of some negli- gence with respect thereto. Wyman v. Hubbard, 13 232; Stearns v. Brown, (1 P.) 18 530. 51. A guardian, however, is chargeable with interest, if he neglects, within a reasonable time, to put out his ward's money at interest; and if the delinquency is gross, he is chargeable with compound interest. Robbins v. Hayward, (1 P.) 18 528, note; Boynton v. Dyer, (18 P.) 35 1. 52. In a guardian's account the interest for a year should be added to the principal, and the current expenses should be deducted, and the balance will be the principal for the next year. Boynton v. Dyer, (18 P.) 35 1. See, also, Miller v. Congdon, (14 G.) 80 ,114. 53. Where a guardian necessarily advances his own money for debts or expenses, he is entitled to interest thereupon. Hayward v. Ellis, (13 P.) 30 272. 54. Where the guardian was indebted to the ward in a sum so small, that it was not a suffi- cient object to re-invest the interest, he was charged with simple interest only. Fay v. Howe, (1 P.) 18 527. 55. Where a guardian had settled two ac- counts, without charging himself with interest, and no adjudication had been made on that subject, it was held that in his third account he should be charged with interest, as if no pre- vious account had been settled: it would have been too late to do so, if the question of interest had been raised and decided on the former settlements. Boynton ». Dyer, (18 P.) 35 1 (4.) Certain contracts. 56. In an action for money had and received, where no previous demand is proved, interest, being recoverable only as damages, can be com- puted only from the date of the writ. Talbot v. Nat. Bk. of Comm., 129 67. See, also, Ordway ». Colcord, (14 A.) 96 59. 57. In an action 10 recover back money paid upon a consideration which has failed, interest runs from the date of the writ, and no previous demand is necessary. Dill v. Wareham, (7 Met.) 48 438; Earle v. Bickford, (6 A.) 88 549. 58. A contract in a policy of insurance to pay the loss within a certain time after proofs of loss, is not a contract to pay interest after that day; and so the insurer is not chargeable with the interest where the money was attached by trustee process. Oriental Bk. v. Tremont Ins. Co., (4 Met.) 45 1. [See, ante, II, (1)0 59. In an action for breach of a covenant for quiet enjoyment, the jury or referee may allow the plaintiff interest on the amount of the in- jury, from the time of the breach. Hovey v. Newton, (11 P.) 28 421. INTEKEST, II, (4); III. 851 60. Where several judgment Creditors, who had levied upon real property, appointed an agent to sell it, and apply the net proceeds "to the payment of the several judgments, in the order of the attachments," it was held that the law raises no promise, and imposes no duty, re- specting interest under such an agreement, and that the older judgment creditors could not. as against the others, claim interest after the agreement. Buffum v. Deane, (4 G.) 70 385. 61. A purchaser at a foreclosure sale, who is put at once in possession, is chargeable with interest on the purchase money till payment thereof; and where the mortgagee is a trustee, and the charge may he enforced through him, in settling his accounts, and in the final decree of distribution, that course will be pursued. Haven «. Grand Junction R. B., etc., Co., 109 88. 62. Where, upon a sale of land, the vendor agreed to discharge a mortgage thereupon at a day certain, and the vendee retained part of the consideration till it should be discharged, and the latter was compelled to pay the mort- gage and interest, he cannot recover interest paid which accrued after the date when the mortgage should have been discharged. Somers v. Wright, 115 292. 63. In an equity cause, a motion for the allowance of interest from the time of a certain payment, first made after the hearing before the full court, will be denied. Dearth n. Hide & L. Nat. Bk., lOO ,540. 64. A partner, who, upon dissolution, is in- trusted with winding up the affairs of the firm, is chargeable with interest in favor of his co- partner, if he mingles the firm money with his own, or unreasonably delays a settlement. Dunlap v. Watson, 124 305. 65. So where surviving partners unreason- ably delay cl sing and settling the partnership affairs, the decedent's estate will be entitled to interest on his share, as against them. Washburn «. Goodman, (17 P.) 34 519. 66. As between partners, interest will not be allowed upon sums annually withdrawn by the several partners, pursuant to a stipulation in the articles, which is silent touching interest. Miller ». Lord, (11 P.) 28 11. 67. Upon a petition to enforce a statutory hen on a vessel, for materials furnished for her construction, as interest is not due as part of the debt under the original contract, but as damages merely, and the debt only is secured oy the. statute, interest can be claimed only from the filing of the petition, which is the first lawful demand. Young v. The Orpheus, 119 179. See, also, Barstow v. Robinson, (2 A.) 84 68 So upon a petition to enforce a statutory mechanic's lien; and interest, although not specifically claimed in the petition, will be allowed from the filing of the petition. Johnson v. Boudry, 1 16 196. 69 Under a voluntary assignment for the nS j °* certam scheduled creditors by notes and drafts, those creditors are entitled to interest, to be computed from the time when their notes and drafts became due. Bryant v. Russell, (23 P.) 40 508. III. Rate and Time of Computation. 70. In an action upon a foreign judgment, the plaintiff is entitled to interest from the date of the foreign judgment, to the date of the judgment in the action here, at the legal rate in this Commonwealth, although a different rate of interest, being that of the state where the judgment sued upon was recovered, is embodied m the record of that judgment. Clark v. Child, 136 344. See, also, Barringer v. King, (5 G.) 71 9; Hop- kins n. Shepard, 129 600. _ . This is upon the principle that the inter- est is recoverable as damages, and not as due by the contract. Clark v. Child, 136 344. 72. Interest is to be paid upon a contract, ac- cording to the law of the place where it is to be performed, in all cases where interest is ex- pressly or impliedly to be paid. Von Hemert v. Porter, (11 Met.) 52 210; French n. French, 126 360. See, further, upon this subject, Conflict or Laws, III, (4).] 73. Under St. 1862, Ch. 183, § 6; P. S., Ch. 12, § 39, interest in an action upon the covenant of warranty, contained in a tax collector's deed, must be computed at the rate of ten per cent to the time of the judgment. Slocum v. Boston, 129 559. 74. Where A, in consideration of $6,000 paid to him by B, executed a bond to pay B the in- terest on that sum for life, and after B's death, to pay the principal to C, A is liable for interest at the rate of six per cent., and not merely for what he has received upon investing the money. Granger v. Pierce, 112 244. 75. In an action upon a note, payable at a day certain, without interest, or with interest at less than the lawful rate, and if not then paid, with lawful interest until paid, lawful interest is recoverable from the date of the note. Daggett v. Pratt, 15 177. 76. As to the rule of computation, where par- tial payments have been from time to time made, upon an interest-bearing debt, see Dean v. Williams, 17 417; Fay v. Bradley, (1 P.) 18 194; Ferrv n. Ferry, (2C.) 56 92. 77. Partial payments upon successive execu- tions, or otherwise, must be first applied to ex- tinguish interest. Fay ii. Bradley, (1 P.) 18 194; Reed v. Reed, (10 P.) 27 398; Ferry n. Ferry, (2C.) 56 92. /8. It is against the policy of the law to al- low compound interest. Hodgkins v. Price, 141 162. See, also, Shaw v. Norfolk Co. Railroad, (16 G.) 82 407. 79. Upon a promissory note, with interest payable annually, if the interest is not punctu- 852 INTEEEST, ni. ally paid, the holder cannot recover interest on that interest, but only simple interest on the principal. Ferry «. Ferry, (2 C.) 56 92, explain- ing Dodge v. Perkins, (9 P.) 26 368. See, also, Hastings v. Wiswall, 8 455; Barrell «. Joy, 16 221; Dean v. Wil- liams, 17 417; Von Hemert v. Porter, (11 Met.) 52 210; Henry «. Flagg, (13 Met.) 54 64. 80. But if a new note is given for the interest, it is thereby converted into capital, and under the usury laws, might lawfully bear interest. Wilcox ». Howland, (23 P.) 40 167; Ferry «. Ferry, (2 C.) 56 92. 81. Upon a promissory note, dated Oct. 7, for $825, payable $100 on March 1, following, and " the balance in two years from this date, with interest from the first day of November next, on the said sum," no interest is due on the second instalment, till the instalment itself is due. Saunders v. McCarthy, (8 A.) 90 42. 82. Upon a mortgage note to pay a sum in instalments, "with interest semi-annually," in- terest begins to run from the date of the note, and the first payment is due at the expiration of the first half year. Conners v. Holland, 113 50. 83. The holder of such a note may sue for each half year's interest as it falls due, although the principal is not due. Conners «. Holland, 113 50. See, also, Greenleaf v. Kellogg, 2 568; Cooley v. Rose, 3 221; Hastings v. Wis- wall, 8 455; Sparhawk c. Wills, (6 G.) 72 163. 84 If the treasurer of a corporation fails to pay over money which he has collected, and the corporation is thereby compelled to borrow money, and to pay interest at a rate greater than six per cent., the treasurer is not liable inequity to pay more than six per cent, interest, if the bill does not seek to recover any profits he may have made. Parker v. Nickerson, 137 487. 85. In an action upon an administration bond, to recover a distributive share in the decedent's estate, interest was allowed from the time of passing the decree. Paine «. Mclntier, 1 69. 86 But in such an action by a creditor of an insolvent estate, interest runs only from the time of demand of payment. Heath v. Gay, 10 371; Williams v. American Bk., (4 Met.) 45 317. 87. Where judgment has been recovered against an administrator for waste, interest is allowed, in scire facias, from the time of the first judgment, deducting payments, if any. Fay v. Brauley, (1 P.) 18 194; Wil- liams ». Am. Bk., (4 Met.) 45 317. 88. In an action upon a probate bond to recover for waste, interest on the sum ascer- tained to be due upon a bill in chancery, was allowed from the date of the writ, not from the time when the property was at its highest value, or the time of the waste. Brazier v. Clark, (5 P.) 22 96; Dawes v. Winship, (5 P.) 22 97, note. 89. Where the settlement of the insolvent estate of a decedent is delayed after- the com- missioners' return, and part of the claims are paid by others or withdrawn, so that the assets exceed the remainder of the claims allowed, the judge of probate may correct the list, so as to add interest from the return to the decree of distribution. Williams ». American Bk., (4 Met.) 45 317. 90. In an action by the administrator of an insolvent estate, to recover back a debt paid in full, in the belief the estate was solvent, interest is recoverable from the demand of repayment, not from the payment. Walker v. Bradley, (3 P.) 20 261. 91. In each of the following cases, interest was allowed from the date of the writ, or the filing of the bill in equity. Upon the balance of an unliquidated account, although there had been a demand of payment. Palmer v. Stockwell, (9 G.) 75 237. In an action upon a quantum meruit, for services in part execution of a special contract, where there had been a demand. Brower*. Tyringham, (12 P.) 29 547. In an action for the return premium on a policy of insurance which did not attach, although there had been a demand. Porter v. Bussey, 1 436. Upon a bill in equity by the heirs of a testa- tor, to recover a fund bequeathed to charitable uses which had failed, where there had been no adverse claim or demand by the plaintiff. Stone v. Framingham, 109 303. Upon a bill for an account of profits of a joint enterprize, where an account was rendered but disputed. Stimpson v. Green, (13 A.) 95 326. In an action for an escape. Whitehead e. Varnum, (14 P.) 31 523. In an action for money payable on demand, where there no contract or usage for interest, and the defendant was not a wrong doer. ^unt o. Nevers, (15 P.) 32 500. 92. Where a contract provided that B should pay A for work in building a house, within 80 days after its completion, and it was not com- pleted within the stipulated time, whereupon B forbade A to do any further work, A was allowed to recover interest after 30 days from the time when he would have completed it Bassett v. Sanborn, (9 C.) 63 58 93. On money due for work and labor, inter- est may be recovered from a demand, made- within a reasonable time after the work was done. Ford v. Tirrell, (9 G.) 75 401. 94. On a contract to repay any money, not exceeding $1,500, which the promisee should be compelled to pay to A, if he is compelled to pay $1,500, he can have interest from demand of repayment. Parker v. Thompson, (3 P.) 20 429. .95. A surety is entitled to interest,_ upon money paid for his principal, from the time of the payment. Dsley v. Jewett, (2 Met.) 43 168. INTEREST, IV— INTERPLEADER. 853 IV. Rulings since the Repeal of the Usury Law. [See, also, ante, art. 36.] 96. Under St. 1867, Ch. 56, § 1; P. S., Ch. 77, § 3, if the parties stipulate for a higher rate ofinterest than six per cent., the same rate of interest is allowable, after breach, to the pay- ment or judgment. Brannon v. Hursell, 112 63; Union Sav. Inst. v. Boston, 129 82. 97. And where a savings bank agrees to pay a depositor a less rate of interest than six per cent., he is entitled, in an action to recover the deposit, only to that rate to the judgment. Pierce v. Boston F. C. Sav. Bk., 129 425. 98. Where interest at a greater rate than six per cent., in acordance with a contract made be- fore the statute of 1867, is voluntarily paid after that statute, an action will not lie to recover back the amount, or the three-fold penalty un- der the G. S. Seavey v. Moors, 103 317. 99. Where a mortgage bears interest at a greater rate than six per cent. , if the mortgagee refuses to accept payment when tender is made, except upon compliance with an illegal de- mand, interest at six per cent, only from the tender, will be allowed him on a bill to redeem. Donohue v. Chase, 139 407. 100. Where no rate of interest is expressed in a note, payments and indorsements of pay- ments of interest, at the rate of seven per cent., do not amount to a change of the contract, or satisfy the statutory requirement of an agree- ment, in writing, for a greater rate than six per cent. Haydenville Sav. Bk. v. Parsons, 138 53. Internal revenue (United States). [See, also. Customs and Collector of Customs ; Intoxicating Liquors, I, (2).] 1. An informer cannot maintain an action against a collector of internal revenue, for a share of a penalty paid to the collector, unless it was recovered by judgment of the United States court. Rice v. Thayer, 105 258. See, also, Lapham i>. Almy, (13 A.) 95 301. 2 - The failure of a wholesale dealer to pay i. v- interna l revenue tax, does not invali- date his sales, or prevent him from recovering the price. Lamed v. Andrews, 106 435. 8. As to the constitutionality, effect, and ap- plication, of U. S. St. 1864, Ch. 173, § 97, im- posing an additional duty upon certain articles, ana allowing any person who had previously made a contract for the sale of such articles to recover also the duties, see Ammidown v. Freeland, 101 303. tint' T ? e ; P Tovisi011 of the U. S. internal reve- Zn £ ' ™ a t.no instrumont, not duly stamped, Zl * Emitted as evidence or recorded, until JSSf 1, d i d n 2 l *PPly to the state courts or records under the state laws. Carpenter v. Snelling, 97 452; Lynch ii. Morse, 97 458, note; Green v. Hol- way, 101 243; Moore®. Quirk, 105 49. 5. For rulings as to the necessity of a stamp, and the effect of an omission of the stamp in particular cases, made under the supposition or assumption that the provision referred to applied to the state courts and state records, see Comm. v. Hardiman, (9 A.) 91 487; Cardell v. Bridge, (9 A.) 91 355; Trull v Moulton, (12 A.) 94 396; Crocker v. Foley, (13 A.) 95 376; Sampson v. Barn- ard, 98 359; Cook v. Shearman, 103 21. 6. That statute did not avoid an instrument for the omission to affix or cancel the stamp, without proof that such omission was made with intent to defraud the revenue. Green «. Holway, lOl 243; Moore v. Quirk, 105 49. See, also, Desmond v. N orris, (10 A.) 92 250; Tobey v. Chip- man, (13 A.) 95 123; Willey v. Robin- son, (13 A.) 95 128, note; Govern v. Littkfield, (13 A.) 95 127, note; Hol- yoke Machine Co. ■». Frankl.n Paper Co., 97 150. 7. United States internal revenue stamps are not subject to state or local taxation, as prop- erty or stock in trade. Palfrey s. Boston, 101 329 International award. [As to the conclusiveness of an award by commis- sioners, appointed under a treaty between the TJ. ti. and a foreign power, see Estoppel, art. 73. t or other rulings arising under such an award, see Assumpsit, art. 138; Bankruptcy, art. 43; Execu- tor and Administrator, art. 306; Insolvent, art. 253; Insurance, art. 778.] Interpleader. [For rulings as to bills in equity by executors, and other trustees, for instructions, and in the nature of bills of interpleader, see Equity Jurisdiction. II, (2). i or rulings as to bills in equity, where there are many parties with distinct rights, etc., and in the nature of bills of interpleader, see Equity Juris- diction, II,(6). As to costs on bills of interpleader, see Equity Pleading and Practice, II, (10).] 1. A bill of interpleader will lie, only where two persons claim from a third the same duty or debt, by virtue of some privity existing between them. Third Nat. Bk. v. Skillings Lumber Co., 132 410; Fairbanks v. Belknap, 135 179; Whitney v. Eliot Nat. Bk., 137 351. 2. For various illustrations and applications of this principle, see Third Nat. Bk. v. Skillings Lumber Co., 132 410; Fairbanks ». Belknap, 135 179. 3. G. S., Ch. 113, §2, clause 6; P. S., Ch. 151, § 2, clause 6, does not enlarge the right to bring a bill of interpleader, but enables a party to a controversy to bring a bill, in the nature of a bill of interpleader, to adjust the whole matter in controversy, where a judgment at law be- 854 INTEEPLEADEE— INTEEEOGATOEIES TO PARTY.- tween two of them would leave open to one or both a controversy with a third person. Third Nat. Bk. v. Skillings Lumber Co., 132 410. See, also, Angell v. Stone, 110 54; McNeil v. Ames, 120 481. 4 A bill of interpleader will not lie by a debtor, against his creditor, and a third person who claims the debt, not through any privity with the creditor, but by a title paramount and adverse to his. Third Nat. Bk. v., Skillings Lumber Co., 132 410. 5. A bill of interpleader will .not lie, where the plaintiff has put himself in such a position, that he is not authorized to dispute the title of one of the defendants. Fairbanks v. Belknap, 135 179. 6. Where personal property, to the ownership of which there are conflicting claims, comes rightfully into the possession of a person, who has no claim upon or interest in it, he may bring a bill of interpleader to determine the person entitled to it. Cobb v. Rice, 130 231. See, also, Salisbury Mills v. Townsend, 109 115. 7. A trustee under a will cannot maintain a bill against two towns, to determine in which he shall be taxed. Macy v. Nantucket, 121 351. 8. A bill of interpleader cannot be main- tained, where it is brought, not for the plain- tiff's protection, but by the attorney, at the expense and for the benefit of one of the two persons claiming the fund, after Ihe other had recovered a judgment at law against the plaint- iff, in defence of which the right of the former was pleaded. Provident Inst'n, etc., v. White, 115 112. 9. It is no objection to a bill of interpleader, that the plaintiff has interests, in other questions not relating to the specific fund. Salisbury Mills v. Townsend, 109 115. 10. Legatees cannot maintain a bill against the administrator, who has obtained a license to sell land, and against the husband of the testatrix, who claims a life estate in the land, to determine the rights of the plaintiffs and of the husband. Sprague ». West, 127 471. 11. As to the effect of the twenty-seventh chancery rule of 1870, (104 578), re-adopted in 1884 as the twenty-sixth chancery rule, (136 607), see Gordon v. Green, 113 259; Provi- dent Inst'n, etc., s. White, 115 112. 12. The principle embodied in that rule was declared before its adoption, in Houghton ». Kendall, (7 A.) 89 72. 13. A life insurance company, which has is- sued a policy on A's life, payable to B, and has allowed A to surrender the policy without B's consent, and take out a new policy, payable to C, cannot, upon A's death, maintain a bill of interpleader against B and C, because the ques- tion is, whether it has not made itself liable to both. Nat. L. Ins. Co. v. Pingrey, 141 411. Interrogatories to party. [For analogous cases, see Equity Jurisdiction. 1. InG. S„ Ch. 129, §§ 51, 74; P. S., Ch. 167, §§ 54, 77, the words "issue" and "subject- matter "refer not only to the particular fact, covered by any one or more interrogatories, but to any matter put in issue by the pleadings, and thus inquired of. Churchill «. Packer, 109 209. See, also, Williams ». Cheney, (3 G.) 69 215; Baxter v. Massasoit Ins. Co., (13 A.) 95 320. 2. The fact that an action is brought for the benefit of a third person, does not deprive the defendant of his right to require the plaintiff to answer interrogatories. Harding v. Morrill, 136 291. See, also, Harding v. Noyes, 125 572. 3. The right of a party to file interrogatories to the adverse party, is confined to the discovery of such facts and documents, as are material to the support or defence of the suit. Wetherbee v. Winchester, 128 293; Todd v. Bishop, 136 386. See, also, Elliott v. Lyman, (3 A.) 85 110. 4. Where the defendant pleads an accounting and payment, and the plaintiff replies that the defendant never paid him, and his accounts were false and fraudulent, the plaintiff may file interrogatories relating to the issue raised by the replication. Todd ». Bishop, 136 386. See, also, Wilson D.Webber, (2 G.) 68 558; Hobbs «. Stone, (5 A.) 87 109; Baker «. Car- penter, 127 226. 5. If the answer to an interrogatory shows that the interrogatory was immaterial, the party has no valid ground of exception to an order compelling him to answer. Todd «. Bishop, 136 386. 6. The defendant who pleads a discharge in insolvency, which the plaintiff claims to be void for fraud on the insolvent law, cannot refuse to answer interrogatories to support the plaintiff's case; and if he declines, on the ground that his answer would criminate him, he must so state under oath. Hobbs v. Stone, (5 A.) 87 109. See, also, Worthington «. Scribner, 109 487. 7. The party's affidavit is not conclusive that his interrogatories are material. Poss v. Nutting, (14 G.) 80 484. 8. Where the court refuses to order the ad- verse party to answer a material and pertinent interrogatory, the error is not cured by the in- troduction of, or the opportunity to introduce, testimony upon the same point at the trial. Baker ». Carpenter, 127 226, over- ruling dicta to the contrary, in Sheren v. Lowell, 104 24. 9. A party cannot be required to answer in- terrogatories, relating only to facts material to the support of his own case, or the manner in which he proposes to prove it. Sheren u. Lowell, 104 24. 10. There is nothing in the statute to prevent a party from making one answer to several INTERROGATORIES TO PARTY. 855 interrogatories, if it is responsive to each of them. Amherst & B. Railroad «. Watson, (8 G.) 74 529. 11. A party cannot, as of right, without a special order, require the other party to produce all his books and papers in answer to interroga- tories. Amherst & B. Railroad v. "Watson, (8 G.) 74 529. 12. Under the existing siatute, a party is re- quired to answer interrogatories, although he resides without the Commonwealth. Townsend v. Gibbs, (11 C.) 65 158. 13. AUter, under the' first statute, St. 1851, Ch. 233. Sheldon v. Kendall, (11 C.) 65 74. 14. Interrogatories may be filed upon a bill of interpleader, or other equity suit. Cobb v. Rice, 130 231. 15. An answer to an interrogatory as to the contents of a document, which is or ought to be in the custody of the interrogating party, is not competent, without proof of its loss or destruc- tion. Hope Ins. Co. v. Chapman, (6 G.) 72 75. 16. The statute gives the party a right to interrogate his adversary only once; but the court, in its discretion, may allow interrogato- ries to be amended, and new interrogatories to be filed. Hancock v. Franklin Ins. Co., 107 113. 17. Interrogatories are not to be treated with unnecessary strictness; and if one is too broad, the party is not bound to answer it, as far as it includes irrelevant matter, but may confine his answer to such portion as is relevant. Hancock v. Franklin Ins. Co., 107 113. See, however, Wetherbee v. Win- chester, 128 293, cited post, art. 35. 18. The plaintiff may require interrogatories to be answered, although the case is one where he may be required to file a replication, where no order for a replication has been made. Hancock «. Franklin Ins. Co., 107 113. 19. To entitle the party to require answers to interrogatories from a person, as an officer of corporation, he must prove to the satisfaction of the presiding judge, that the other party is a corporation. Gott «. Adams Express Co., 100 320. 20. An officer of a municipal corporation cannot be required to answer interrogatories. Linehan v. Cambridge, 109 212. 21. In an action against a corporation, inter- rogatories to the president, which do not call tor official information, but relate to his personal knowledge and admissions concerning the matter in suit, need not be answered. Hancock v. Franklin Ins. Co., 107 113. 22. Interrogatories may be addressed to one of several defendants, in an action of contract, and his answers are evidence for the plaintiff. Stetson «. Wolcott, (15 G.) 81 545. 23. Amending the declaration does not pre- clude the plaintiff from using answers to inter- tories previonsly filed. Weatherby «. Brown, 106 338. 24. The right to file interrogatories in the common pleas, where the action was com- menced before a justice of tiie peace, is not affected by -having filed and then having waived such interrogatories, in the court below. Kennedy v. Gooding, (7 G.) 73 417. 25. And placing the action on the trial list is not a waiver of the right to claim a default, for failure to answer the interrogatories. Kennedy i>. Gooding, (7 G.) 73 417. 26. Answers signed and sworn to by the attorney, are insufficient. Harding v. Noyes, 125 572. 27. Where the plaintiff neglects to answer interrogatories filed by the defendant, any of which are pertinent, it is within the discretion of the court to order a nonsuit, and no excep- tion lies to the exercise of such discretion. Harding v. Morrill, 136 291. 28. So where the court refuses to order a nonsuit. Stern ». Filene, (14 A.) 96 9. 29. But the court cannot enter a nonsuit or a default, because the answers to the interrogato- ries are insufficient or evasive, without giving an opportunity to amend. Fels v. Raymond, 139 98. 30. The court may, in its discretion, allow a party further time to answer. Stern e. Filene, (14 A.) 96 9; Harding •v. Noyes, 125 572. 31. A plaintiff cannot be nonsuited for insuffi- ciency of his answers, which substantially meet the defendant's interrogatories, unless he has disobeyed an order directing further answers. Amherst & B. Railroad v. Watson, (8 G.) 74 529. 32. In computing the ten days, within which the party is bound to answer the interrogatories, an intermediate Sunday is counted; but not a Sunday which is the last day. Robbins «. Holman, (11 C.) 65 26. 33. A defendant is bound to answer inter- rogatories only as to such matters as tend to support the plaintiff's claim, not as to mat- ters relating exclusively to his defence. Wetherbee d. Winchester, 128 293. 34. If after the defendant has answered interrogatories, an additional interrogatory is filed without leave, he cannot be defaulted for not answering it. Wetherbee v. Winchester, 128 293. 35. If an interrogatory includes matters as to which the defendant is not, with those as to which he is, bound to answer, he is not required to answer any of it, and cannot be defaulted for such refusal, under a general order to answer further, without a specific order as to the par- ticulars in which his answers are deficient. Wetherbee v. Winchester, 128 293. 36. The statute of 1851 applied to pending actions. Robbins v. Holman, (11 C.) 65 26. 856 INTESTATE'S ESTATE— INTOXICATING LIQUORS, I, (1). 37. The statute was not affected by the statute making parties competent witnesses. Hubbard v. Hubbard, (6 G) 72 362. Intestate's estate. [See Descent and Distribution ; Executor and Administrator; Heirs, etc.; Widow, II.] Intoxicating liquors. I. The Statutes. (1.) General principles. (2.) Constitutionality; and effect upon each other. (3.) Effect upon contracts relating to liquor; evidence thereupon. II. Statutory Prohibitions. (1.) To what liquors and sales the prohibition applies. (2.) Sale without license; generally. (3.) Sale without license; agent or servant. (4.) Sale to infant; infant loitering; sale on Sunday. (5.) Keeping, etc., with intent unlawfully to sell. III. License. (1.) General principles. (2.) Sufficiency; validity; schoolhouse within 400 feet. (3.) Effect; conditions, and violation thereof; forfeiture; revocation. IV. Civil Action. (1.) For damages caused by another's intoxica- tion. (2.) For furnishing to a drunkard, after notice. V. Criminal Prosecution. (1.) General principles. (2.) Indictment; complaint. (See Indict- ment.) (3.) Burden of proof. (4.) Evidence. (A.) Time and place. (B.) Act of selling. (C.) Keeping with intent to sell; keeping tenement for unlawful sales. (-D.) Character of the liquor. (5.) Conviction; sentence; former conviction or acquittal. VI. Search; Forfeiture; Seizure. (1.) General principles. (2.) Complaint; warrant. (3.) Execution and return of the warrant; notice to claimant. (4.) Trial; verdict; judgment; review of the proceedings. VII. Miscellaneous Rulings under obso- lete Statutes. [As to the form, sufficiency, and interpretation, of an ind ctmen oi complaint for an offence under the statutes relating to intoxicating liquors, see Indict- ment and Complaint, III; IV; VII; VIII, (17). For additional and analogous cases upon all ques- tions relating to buildings, places, or tenements used for the unlawful keeping or sale of intoxicating liquors, see Nuisance, III.] I. The Statutes. Cl.) General principles. [See, also post, II, (1).] 1. Apart from the statute, it is not illegal to sell intoxicating liquors, and a tenement used for such a purpose is not a nusiance. Comm. v. Churchill, 136 148. See, also, Comm. ■». McDonough, (13 A.) 95 581. 2. But where an act, without a license, is made an offence by statute, and an act, appar- ently criminial under the statute, is proved in support of an indictment, the duty rests upon the defendant of proving, not only a license, but a license which is sufficient for his justifi- cation. Comm. v. Rafferty, 133 574. 3. The statute does not prohibit the drinking or buying of liquor, but only the sale thereof, or keeping it for sale; nor does it prohibit the the distribution of it in severalty, among per sons who own it in common, whatever may be the intent in thus buying and distributing it. Comm. v. Pomphret, 137 564. See, also, Comm. v. Willard, (22 P.) 39 476; Comm. v. Downing, (4 G.) 70 29. 4. Intoxicating liquors are property, and en- titled to protection as such. Brown v. Perkins, (12 G.) 78 89; Booraem v. Ci ane, 103 522. 5. And the house or tenement, in which they are kept, cannot be broken open, and the liquors destroyed as a nuisance, without the express authority of law. Brown ». Perkins, (12 G.) 78 89. 6. There is nothing in the statutes, in relation to intoxicating liquors, to prevent the owner of such liquors from maintaining an action, to recover them or their value, where they are tortiously taken from him, although he has no license. Booraem v. Crane, 103 522. See, also, Fisher v. McGirr, (1 G.) 67 1; Breck v. Adams, (3 G.) 69 569; Cobb ». Farr, (16 G.) 82 597. 7. So intoxicating liquor, although pur- chased, intended to be sold, and being trans- ported, in violation of a statute, is the subject of larceny. Comm. v. Coffee, (9 G.) 75 139. 8. In such a case the owner might forfeit and lose his property, but only upon such proof, and in such method as the law points out. Comm. 1). Coffee, (9 G.) 75 139. See, also, Comm. v. Rourke, (10 C.) 64 397, Mason v. Lothrop, (7 G.) 73 354; Reed v. Adams, (2 A.) 84 41ii. INTOXICATING LIQUOES, I, (1), (2). 85T 9. And an officer, seizing it under a warrant, is liable as a trespasser, if the proceedings are abated for irregularity, although no order for its return was made. Ewings s. Walker, (9 G.) 75 95. 10. A statute forbidding such an action is unconstitutional. . Fisher «. McGirr, (1 G.) 67 1; Breck „. Adams, (3 G.) 69 569. 11. And an action for nondelivery of such, liauor lies against a carrier. Kiff v. Old Colony & N. E. R., 117 591. (2.) Constitutionality ; and effect upon each other. 12. Those portions of the existing statute, St. 1875, Ch. 99; St. 1881, Ch. 255; P. S., Ch. 100, which authorize the granting of licenses by municipal authorities, and require the pay- mentof a fee or excise therefor, and empower a district court to revoke the same, are consti- tutional. Comm. v. Fredericks, 119 199; Young 0. Blaisdell, 138 344. See, also, Comm. 0. Blackington, (34 P.) 41 352. 13. Section 11 of the act of 1875, P. S., Ch. 100, § 15, as to entering upon the premises of a person licensed, is constitutional. Comm. ■». Ducey, 126 269. 14. So is St. 1879, Ch. 297, § 1; P. S., Ch. 100, § 21. Moran v. Goodwin, 130 158. 15. For rulings in favor of the constitution- ality of obsolete statutes, see: B. S. Ch. 47, as to retailers in less quantity than 28 gallons, Comm. a. Kimball, (24 P.) 41 359. St. 1852, Ch. 322, § 7. Comm. e. Burding, (12 C.) 66 506. St. 1852, Ch. 322, § 12. Comm. v. Kendall, (12 C.) 66 414; Comm. 0. "Williams, (6 G.) 72 1. St. 1852, Ch. 322, 8 18. Comm. 0. Holley, (3 G.) 69 458. St. 1855, Ch. 215, § 13. Jones 0. Root, (6 G.) 72 435; Mason 0. Lothrop, (7 G.) 73 354. St. 1855, Ch. 215, §§ 15, 17. Comm. 0. Clapp, (5 G.) 71 97; Comm. 0. Hitchings, (5 G.) 71 482; Comm. 0. Pomeroy, (5 G.) 71 486, note; Comm. 0. Burns, (9 G.) 75 132; Comm. 0. Mur- phy, (10 G.) 76 1; Comm. 0. Munn, (14 G.) 80 361. St. 1855, Ch. 215, § 25. Allen 0. Staples, (6 G.) 72 491 St. 1855, Ch. 215, § 34. Comm. 0. Wallace, (7 G.) 73 222; Comm. 0. Rowe, (14 G.) 80 47. St. 1855, Ch. 401, § 1. Comm. 0. Howe, (13 G.) 79 26. G. S Ch. 87, §§ 6, 7. Comm. 0. Owens, 114 252. St. 1869, Ch. 191. Comm. 0. Brennan, 103 70. Vol. 1—108 St. 1869, Ch.415. Comm. 0. Intoxicating Liquors, 115 153; aff'd, Boston Beer Co. 0. Massachu- setts, 97 U. S., 25. _6. For rulings against the constitutionality of obsolete statutes, see St. 1852, Ch. 322, § 14. Fisher 0. McGirr, (1 G.) 67 1. St. 1855, Ch. 215, § 32. Sullivan 0. Adams, (3 G.) 69 476. 17. A license, under the United States inter- nal revenue laws, to sell intoxicating liquor, is no defence to a prosecution for violating the statutes of the Commonwealth, prohibiting such sales, without complying with the latter. Comm. ». Thorniley, (6 A.) 88 445; Comm. 0. O'Donnell, (8 A.) 90 548; Comm. n. Holbrook; (10 A.) 92 200: Comm. 0. Keenan, (11 A.) 93 262. See, also, McGuire 0. Comm., 3 Wall. (XT. S.), 387; Pervear 0. Comm., 5 Wall. (TJ. S.), 475. 18. But the jury may take such a license into consideration in dete rminin g the question of the defendant's guilt. Comm. 0. Keenan, (11 A.) 93 262. 19. Nor is a payment of a tax to, or a certifi- cate, from a "United States internal revenue offi- cer, a defence to a prosecution for keeping a tenement for illegal sale of liquor. Comm. 0. McNamee, 113 12; Comm. 0. Sanborn, 116 61. 20. For rulings as to the sale of imported liquors in the original packages, see, pout, II, (1), and Bradford 0. Stevens, (10 G.) 76 379. 21. As to the effect upon each other of the successive statutes, see the following cases: R. 8., Ch. 47, §§ 2, 3, repealed by St. 1838, Ch. 157. Comm. 0. Kimball, (21 P.) 38 373. And revived by the repeal of the st. 1838, by St. 1840, Ch. 1. Comm. 0. Churchill, (2 Met.) 43 118. Section 1 of the same chapter not repealed by the st. of 1838. Comm. 0. Odliu, (23 P.) 40 275; Har- ris 0. Comm., (23 P.) 40 280. St. 1850, Ch. 232, § 1, did not repeal R. S., Ch. 47, §§ 1 to 3. Comm. 0. Herrick, (6 C.) 60 465. St. 1855, Ch. 215, § 39, repealing St. 1852, Ch. 322, did not annul pending prosecutions under the latter statu' e. Comm. 0. Edwards, (4 G.) 70 1. St. 1855, Ch. 405, § 1, did not affect St: 1855, Ch. 215, § 17. Comm. 0. Roland, (12 G.) 78 132. St. 1870, Ch. 389, § 8, saved the prosecutions under St. 1869, Ch. 415, § 31, for a sale between the time when the former was approved and the time when it took effect. Comm. 0. Bennett, 108 30. St. 1871, Ch. 334, limited to the first day of July next, after the vote was taken, the effect of a vote of a town or city, on the first Tues- day of May, 1871, under St. 1870, Ch. 389. Comm. 0. Kevill, 108 42a 858 INTOXICATING LIQUOKS, I, (3); II, (1). St. 1873, Ch.42, took from cities and towns the power to license sales of ale, porter, and beer; and the illegal sale thereof was punishable under St. 1869, Ch, 415. Comm. 0. Locke, 114 288. [As to the effect of the nuisance statutes upon each other, and their effect upon the intoxicating liquor statutes, and vice versa, see Nuisance, III, (1).] (3.) Effect upon contracts relating to liquor; evidence thereupon. [As to the effect of the statutes upon securities, etc., given partly for illegal sales of liquor, and partly for u valid consideration, see Contract, II, (2); III, (1). As to the effect of contracts in another state, relating to or contemplating an unlawful sale, etc., here, see Conflict os Lat\s, I; III, (4).] 22. The foreclosure of a mortgage upon real property renders the title of the mortgagee valid and absolute, although the consideration was a de')t contracted upon an unlawful sale of liquor. McLaughlin 0. Cosgrove, 99 4. ■ 23. This upon the ground that G. S.', Ch. 86, § 01, did not affect a payment in real property for liquor thus sold. McLaughlin v. Cosgrove, 99 4. 24. But that provision allowed every such payment in money, labor, or personal property, to be recovered back, in whatever mode it was made, cs by a credit upon settlement of mutual accounts, and a receipt in full. Walan «. Kerby, 99 1. 25. So where note:; were given, some of which were paid to the seller, and others to a bank, where he had procured them to be dis- counted. Orcutt ». Symonds, 107 382. 26 And it was immaterial that the purchaser bought to sell again illegally. Orcutt 0. Symonds, 107 383. 27. The repeal of that provision by St. 1868, Ch. 141, § 26, did not prevent such a recovery upon a previous sale. Adams 0. Goodnow, 101 81. See, also, Dewey 0. Dolan, 121 9. 28. So the repeal of St. 1832, Ch. 322, by' St. 1855, Ch. 215, did not validate a note given for liquors, in violation of the former statute, when it was in force. Holden 0. Cosgrove, (12 G.) 78 216. 29. G. S., Ch. 86, § 61, applied only to sales within this Commonwealth. Abberger 0. Marrin, 102 70; Ely 0. Webster, 102 304; Tracy ». "Webster, 102 307, note. 30. See, further, as to the effect of that pro- vision, and corresponding provisions in subse- quent statutes, now repealed: Poster 0. Thurston, (11 C.) 65 322; Hubbell 0. Flint, (13 G.) 79 277; Briggs 0. Rafferty, (14 G.) 80 525; King 0. McEvoy, (4 A.) 86 110; Galligan 0. Fannan, (7 A.) 89 255; Howard 0. Harris, (8 A.) 90 297; Nourse 0. Pope, (13 A.I 95 87;Hotckiss0.Finan, 105 86; Bolduc 0. Randall, 107 121. 31. A father may recover for the services of his infant son, in unlawfully selling liquors, if he did not know the character of the services, while his son was rendering them. Emery 0. Kempton, (2 G.) 68 257. 32. An unlawful sale of liquors, with an agreement that the vessels containing them shall be returned, will not sustain an action for the price of the vessels. Holt 0. O'Brien, (15 G.) 81 311. 33. A policy of insurance against loss by Are, upon liquors unlawfully kept for sale by the insured, is void as to him. Kelly 0. Home Ins. Co., 97 288; Johnson 0. Union Ins. Co., 127 555; Lawrence 0. National Ins. Co., 127 557, note. 34. In an action for a debt, where the defence is that it was eontracted for the unlawful sale of intoxicating liquors, the defendant, to prove a scienter by the plaintiff, may prove other sales by the plaintiff to him. Hubbell 0. Flint, (13 G.) 79 277; Briggs 0. Rafferty, (14 G.) 80 525. 35. But not that it was notorious that no licenses were granted in the county. Dunbar 0. Merley, (8 G.) 74 163. 36. The refusal of the seller to testify whether he had a license, on the ground that his answer might criminate himself, and evidence that the liquors sold were part of his stock in trade as a druggist, and that the subject of the sale was the entire stock, will warrant the jury in finding that the sale was illegal. Andrews 0. Frye, 104 234. 37. As to evidence of the acts of an agent ior the seller, see Merchant 0. Chapman, (2 A.) 84 228. 38. "Where, in an action for the price of liquor, the defence was that the liquor was sold in N, the plaintiff having only a license 10 sell in B, and it appeared that the order was given in N, subject to the plaintiff's approval, and that he approved it in B, and there delivered the liquor to a carrier for the defendant, it was held that the sale was made in B. Frank 0. Hoey, 128 263. [See post, art. 70.] 39. Evidence that an insolvent was a retail liquor dealer, and that the notes were given for liquor sold by him, is sufficient, against the as- signee, to prove an unlawful sale. Blake 0. Sawin, (10 A.) 92 340. 40. Evidence that a tenement was let, with the lessor's knowledge that it was to be teed for the sale of liquors, is no defence to an action for whe rent, if the jury find that it was not knowingly let by him for the illegal sale, or permitted by him to be thus used. Codman 0. Hall, (9 A.) 91 335. [As to forfeiture of a lease by the illegal sale of liquors, see Landlord and Tenant, V, (4).] II. Statutory Prohibitions. (1.) To what liquors and sales the pro- hibition applies. [See, also, ante, I, (1); post, V, (i), (D).] 41. The statutes does not apply to sales, in a city which has voted to grant licenses, by the INTOXICATING LIQUORS, II, (1). 859 steward of a club, to the members thereof, of l.quor bought in the name and as the property of the club. Comm. v. Pomphret, 137 564; ex- plaining Comm. 11. Smith, 102 144. 42. The statute does not prohibit the sale of every medicine or article of food, in the pre- paration of which liquor is used; but if the article sold is in reality intoxicating liquor, the sale is unlawful, although it is sold to be used as medicine, or is disguised under the name of a medicine, or is a mixture of liquor and other ingredients. Comm. ». Kamsdell, 130 68. See, also, Comm. n. Sloan, (4 C.) 58 52- Comm. v. Bathrick, (6 C.) 60 247- Comm. v. Hallett, 103 453. 43. So if the article sold cannot be used as an intoxicating drink, the sale is not unlawful although liquor is one of its ingredients Comm. ii. Ramsdell, 130 68. 44. Therefore a druggist who keeps liquor, only to mix it with other ingredients, accord- ing to physicians' prescriptions, and to manu- facture such compounds as are usually sold by druggists for medicinal purposes, does not require any license, under St. 1875, Oh. 99 Comm. v. Ramsdell, 130 68. See under the former statute, Comm. v Kim- ball, (24 P.) 41 366. 45 Under St. 1869, Ch. 415, § 28, a sale of alcohol, by a commission merchant, to a wholesale druggist, was not a sale by a drug- gist to " other druggists." Mills v. Perkins, 120 41. 46. A sale to a wholesale druggist was not under that section, evidence of a sale "for medicinal purposes only." Mills v. Perkins, 120 41. n, 47 i™ n !? e L St - 18 . 75 ' Ch - "• § 18 ; see p - s., ui. iuu, §. ,27, an instruction to the jury that they cannot convict, unless the government proves that the liquors exposed for sale were intoxicating, but that they must convict if such hquors were ale, or distilled spirits, called whiskey, is correct. Comm. v. Curran, 119 206. rr 4 ! ' J^i 111 inai ctment under G. S., Ch. 87, SS b, 7 the defendant having contended that he used the liquors in the manufacture of "S's Diners, a well known medicine, it was erro- neous to exclude a question in behalf of the S, r ^ ent ' M t0 what Proportion of liquor those bitters contained. Comm. v Pease, HO 412. it^\ A i 1° the distm ction, under the former statute, between liquors which are "spirituous," and liquors which are ' ' intoxicating," see Comm. n. Herrick, (6 C.) 60 465- Comm. v. Grey, (2 G.) 68 501; Comm. *>. Livermore, (4 G.) 70 18; Batchelder ■>■ Comm., 109 361. auetfim? ru 'i n f >™ der the former statute.upon questions, chiefly of evidence, as to whether W, Zfl 0r - la S er beer > soM ty the defendant, was intoxicating," within the statute, see Comm. v. Hardiman, (9 G.) 75 136 Jfmm. «. Anthes, (12 G.) 78 29 Uanm. „ Bubser, (14 G.) 80 83: coram, v. Shea, (14 G.) 80 386; Comm v. Gourdier, (14 G.) 80 390; Comm. v. Dobbyn, (14 G.) 80 44; Comm. o. White, (15 G.) 81 407; Comm. «. Good- man, 97 117; Comm. v. Bentley, 97 551; Comm. ». Heywood, 105 187- Comm. v. Bios, 116 56; Comm. v. Leo, 110 414. See, also, Haines «. Hanrahan, 105 480. .51. For rulings upon similar questions as to cider, see Comm. v. Dean, (14 G.) 80 99; Comm. v. Smith, 102 144; Comm. v Hallett, 103 452; Comm. «. Chappel 116 7. 52. Any person may testify that a certain liquor was gin. Comm. v. Timothy, (8 G.) 74 480. 53. And it was unnecessary, under the for- mer statute, to prove that gin is "intoxicating " Comm. u. Pockham, (2 G.) 68 514. 54. An allegation, in an indictment under the R. S., of a sale of spirituous liquor, is supported by evidence of a sale of brandy or gin, mixed with sugar and water. Comm. v. White, (10 Met.) 51 14. 55. And an allegation of a sale of "intoxi- cating liquors, and mixed liquors, part of which was intoxicating," is supported by proof of a sale of intoxicating liquors. Comm. ii. Leonard, (11 G.) 77 458. 56. As to fermented liquors, and three sales to convict of being a common seller. Comm. v. Giles, (1 G.) 67 466; Comm. ii. Burns, (9 G.) 75 287. 57. As to mixing liquors with unknown in- gredients, and calling the mixture beer. Comm. v. Bathrick, (6 C.) 60 247. 58. Under the statute of 1855, declaring that lager beer shall be deemed intoxicating, (see P S., Ch. 100, § 27), it maybe described in the indictment as intoxicating liquor, and proof that it is not intoxicating is inadmissible. Comm. n. Anthes, (12 G.) 78 29. 59. A sale of imported liquor by the im- porter, in the original packages, is valid, although the seller knows that it was purchased to resell in violation of the statute. Richards v. Woodward, 113 285. 60. In an action to recover a debt for liquors sold, a bill of parcels which describes the plaintiffs as wholesale grocers and dealers in ship stores and salt provisions, is compe- tent evidence, in behalf of the defendant, for the consideration of the jury, upon the question whether the plaintiffs were importers. Baker v. Callender, 1 18 390. 61 A mortgagee who forecloses an import- er's mortgage upon a cask of spirits, bonded in the United States warehouse, and pays the duties and receives the cask, is not an importer within the statute. Kingo. McEvoy, (4 A.) 86 110 62. Guilty knowledge that one is acting in violation of law, is not essential to the offence of unlawfully selling intoxicating liquors; and whoever has a license is bound at his peril to to keep within the terms of it. Comm. v. Uhrig, 138 492. 860 INTOXICATING LIQUOES, H, (2), (3). (3.) Sale without license; generally. 63. A statute, prohibiting a sale without license, extends to liquor owned bythe seller at the time of its enactment. Comm. v. Logan, (12 G) 78 136. See, also, Comm. i>. Murphy, (10 G.) 76 1. 64. Payment or an agreement to pay is essential to a s.ile. Comm. •». Packard, (5 G.) 71 101; Comm. v. Williams, (6 G.) 72 1. 65. A barter of liquor for goods or services, or a sale on credit, is a sale within the statute, whether the liquor is delivered at the time of receiving the services or article exchanged for it, or before or afterwards. Mason v. Lothrop, (7 G.) 73 354; Comm. «.Burns, (8 G.) 74 482; Comm. v. Clark, (14 G.) 80 367; Howard v. Harris, (8 A.) 90 297. 66. Where any part of the consideration for money paid or an article delivered, is the delivery of, or express or implied permission to take, liquor, that is a sale within the statute. Comm. d. Thayer, (8 Met.) 49 525. 67. So a complaint for keeping a tenement for the unlawful sale of liquor, is sustained by proof that the defendant furnished to his guests liquor with their meals, one payment including both. Comm. i). "Worcester, 126 256. 68. "Where two persons ask together for liquor, and it is delivered in separate vessels to each, and one pays for both, that is a sale to Comm i>. Very, (12 G.) 78 124. 69. Under St. 1869, Ch. 115, it was not a de- fence that the defendant believed that the liquor sold was a medicine or not intoxicating. Comm. v. Hallett, 103 452. See, also, Comm. v. Boynton, (2 A.) 84 160; Comm. v. Goodman, 97 117. 70. "Where the defendant, having a place of business in B, issued from that place circulars to persons in H, offering to sell them liquor, applications to be made at a post-office box in H, which was hired by his employee; and an order for a bottle of whiskey was addressed to that box, and taken by the employee to the defendant, who delivered a bottle, addressed to his correspondent at H, to an expressman at B, by whom it was delivered, it was held that this was evidence of a sale at H. Comm. v. Burgett, 136 450. [See ante, art. 38.] (3.) Sale without license; agent or ser- vant, [See, also, post, arts. 97, 164, 165, 170, 171, 309 to 211.] 71. A servant is not liable for selling liquor in his master's tenement, or otherwise maintain- ing a nuisance therein, except where he had charge and control of the place, at least tempor- arily. If his master was present, or otherwise exercised personal supervision, the' latter only is liable. Comm. v. Churchill, 136 148. See, also, Comm. v. Hadley, (11 Met.) 52 66- Comm. v. Mann, (4G.) 70 213; Comm. v. Gannett, (1 A.'i 83 7; Comm. v. Tryon, 99 442; Comm. i>. Kimball, 105 465; Comm. v. Maroney, 105 467, note; Comm. v. Dowling, 114 259; Comm. v. Burke, 114 261; Comm. i. Roberts, 132 267. 72. An employee of a seller of liquors in another state, who there receives an order for liquor, and under his employer's authority to act, accepts the order, may be indicted here for an unlawful sale, if the liquor is delivered here. Comm. v. Eggleston, 128 408. See, also, Comm. ». Hadley, (11 Met.) 52 66; Comm. v. Drew, (3 C.) 57 SJ79. 73. An unlawful sale by a servant on his master's premises is prima facie evidence of the master's assent; but the jury must be satisfied that he did assent. , Comm. v. Nichols, (10 Met.) 51 259; Comm. . Nash, 135 541. 75. A mere messenger of the seller cannot be punished for taking the liquor to and receiving the money from the purchaser. Comm. v. "Williams, (4 A.) 86 587. 76. Assuming to act for one without authority does not exonerate the defendant. Comm. «. Williams, (4 A.) 86 587. 77. Evidence that the master prohibited the sale, is incompetent in favor of the servant. Comm. v. Tinkham, (14 G.) 80 12. 78. Evidence that while a woman was tending the defendant's bar, a man took a bottle from the bar, and at the same time the woman took a piece of money from the bar, with evidence that liquor was kept for sale, is sufficient to go to the jury. Comm. ■». Fitzgerald, (14 G.) 80 14. 79. As to the liability to punishment of the agent of a club for selling liquors to members, see Comm. «. Smith, 102 144; explained in Comm. v. Pomphret, 137 564; ante, art. 41. 80. An allegation in a complaint, or indict- ment, of a sale to A, is sustained by proof of a sale to A's agent, although the principal was not disclosed. Comm. «. McGuire, (11 G.) 77 460. 81. But in such a case, a complaint alleging a sale to the agent is also sustained. Comm. v. Kimball, (7 Met.) 48 308; Comm. v. Very, (12 G.) 78 124; Comm. «. Gormley, 133 580. INTOXICATING LIQUOKS, II, (3), (4), (5). 861 82. But if the seller had notice of the agency, the indictment must allege the sale to the prin- Clpa ' Comm. 11. Eemby, (2 G.) 68 508. [For rulings where the wife acts as her husband's agent, or under hiE control, see Husband and wife.] 83. Where one sells liquor as agent for anoth- er he cannot, upon trial of an indictment against him, show that he afterwards returned the money, with a letter, saying that his prin- cipal did not sell liquor, and wished the money to be given back. Comm. «. Williams, (4 A.) 86 587. [For additional rulings, as to the liability of a mas- ter tor his servant's Acts m violation of the statutes, see,j»s«,III, (3); IV, (2); V, (1); V, dK (4.) Sale to Infant ; Infant loitering ; sale on Sunday. 84. It is immaterial whether a person who furnishes liquor to an infant is licensed or un- licensed; and in an action to recover the pen- alty, an allegation in the declaration that he was unlicensed, may he rejected as surplusage. McNeil «. Collinson, 128 318. 85. And the omission of any allegation on the subject, in a complaint for such a sale, is immaterial. Comm. v. O'Brien, 134 198. See, also, Comm. ■». Lattinville, 120 385. 86. A person may be liable to the several penalties for selling liquor to an infant, and for allowing him to loiter upon the premises, on the same occasion. McNeil v. Collinson, 130 167. 87. An action for the penalty may be main- tained by the mother, without proof that the infant has no father. McNeil v. Collinson, 130 167. 88. Under St. 1875, Ch. 99, § 6, cl. 4, a sale to an infant who has authority from his parent to buy for him, and states that he is so buying, but, in fact, buys for himself, will support a complaint. Comm. v. Finnegan, 124 334. 89. But under that statute, a sale to an infant for his parent's use, was not prohibited. See, now, P. S., Ch. 100, § 9, cl. 4 Comm. v. Lattinville, 120 385. 90. In an action for the penalty, it is not necessary to prove the defendant s knowledge, that the person to whom he sold was an infant. Boberge v. Burnham, 124 277. 91 Such an action is a civil proceeding, and the defendant's guilt need not be proved beyond all reasonable doubt. Roberge «. Burnham, 124 277. 92 The surety in the licensee's bond is liable for a judgment recovered in such an action. Day «.Frank, 127 497. 93. Evidence that liquor was delivered to an infant, which was ordered and paid for by a third person, will not support such an action, although the infant stated what kind of liquor he wanted. St. Goddard e. Burnham, 124 578. 94. Upon the trial of a complaint for selling liquor to an infant, a witness, who saw the trans- action, may give his opinion as to the age of the person, to whom the sale was made. Comm. v. O'Brien, 134 198. 95. A complaint for an unlawful sale, is sup- ported by proof of a sale on Sunday. Comm. v. Harrison, (11 G.) 77 310. 96. So an indictment under G. S., Ch. 87, §§ 5, 7, for keeping a tenement for the unlawful sale of liquor, is supported by proof of sales on Sunday, although the liquor was such that its sale on another day would have been lawful. Comm. v. McCurdy, 109 364. 97. For a case where the question was, whether a sale on Sunday was made by a ser- vant, acting by authority of the defendant, see Comm. v. Nash, 135 541, ante, art. 74. :-ee, also, Comm. v. Auberton, 133 404; Comm. v. Casey, 134 194. (5.) Keeping, etc., with Intent unlaw- fully to sell. 98. A complaint for unlawfully exposing and keeping liquor, with intent unlawfully to sell the same, is sustained by proof of either keep- ing or exposing with that intent. Comm. v. Atkins, 136 160. See, also, Comm. v. Curran, 119 206; Comm. v. Dolan, 121 374; Comm. v. Welch, 140 372. 99. But an indictment, under the nuisance act, for keeping and mainta ning a tenement for such unlawful sale, is not supported by proof of a lease for such purpose. Comm. v. Churchill, 136 148. 100. The question of intent, in keeping or exposing liquor, is for the jury. Comm. v. Goodman, 97 117; Comm. n. Atkins, 136 160. See, also, Comm. v. Blood, ill G.) 77 74. 101. It suffices to convict, if the keeping was on but a single occasion, or for but a short time. Comm. 1>. Cleary, 105 384; Comm. v. Atkins, 136 160. See, also, Comm. v. Hoar, 121 375. 102. Upon the question of intent, it is not necessary to prove the defendant's knowledge that the liquor was intoxicating. Comm. v. Goodman, 97 117. See, also, Comm. e. Boynton, (2 A.) 84 160. 103. It is not necessary to prove that the de- fendant owned the liquor. Comm. ii. O'Reilly, 1 16 15. 104. Or that he intended to sell it in the same same house wherein he kept it. Comm. v. Intox. Liquors, 116 24; Comm. 11. Intox. Liquors, 116 27; Comm. ■». McCluskey, 123 401. 105. If an intent to sell exists, there is no presumption that it was to sell without the Commonwealth. Comm. v. Blood, (11 G.) It 74. 106. Having liquor in a wagon, under cir- cumstances tending to show, that the possessor 862 INTOXICATING LIQUOES; H, (5); HI, (1), (2). is carrying and peddling it from house to house, supports an indictment. Comm. v. McConnell, (11 G.) 77 204. 107. It is not necessary to prove any overt act; but there must be some offer of the liquor, by exposing it to those who might become pur- chasers, in order to constitute the offence of exposing. Comm. v. McCue, 121 358. 108. Upon the trial, the police officer who made the complaint cannot be asked, on cross examination, whether he made a complaint ten days previously against another person for keep- ing at the same place. Comm. «. Brown, 136 171. 109. As to the jurisdiction, under St. 1855, Ch. 215, see Comm. v. Murphy, (11 G.) 77 53. III. License. (1.) General principles. 110. A license is n t a contract; but simply an authority to sell according to law, and sub- ject to all the limitations, restrictions, and liabilities, which the law imposes. Moran ». Goodwin, 130 158. See, also, Calder v. Kurby, (5 G.) 71 597; Comm. v. Brennan, 103 70. 111. Therefore, a statute imposing a new condition or liability upon a licensee, is not unconstitutional. Moran ». Goodwin, 130 158. 112 A license may be annulled by subsequent legislation. Calder «. Kurby, (5 G.) 71 597. 113. It is a personal trust and cannot be Comm. v. Hadley, (11 Met.) 52 66. 114. A license granted contrary to law is void, but mere irregularities in the anterior proceedings will not vitiate it. Goff».Fowler,(3P.) 20 300; Comm. i>. Markoe, (17 P.) 34 465. 115. Where a sale can be lawfully made only by a licensed person, it is not made lawful, because the person selling has complied with the statutory provisions for procuring a license, and those whose duty it was to grant it, have, for any reason, omitted to do so. Comm. 1>. Blackington, (24 P.) 41 352. See, also, Comm. v. Spring, (19 P.) 36 396. 116. Under St. 1796, Ch. 68, a license to sell in a particular building included , contiguous buildings, or even those not contiguous, if all were used together. Goff*. Fowler, (3 P.) 20 300; Comm. v. Estabrook, (10 P.) 27 293. 117. As to the sufficiency of evidence, under the former statutes, of the grant or nonexistence of a license, see. Comm. ■» Bolkom, (3 P.) 20 281 Comm. v. Spring, (19 P.) 36 396 Comm. v. Kimball, (7 Met.) 48 304 Comm. v. Tuttle, (12 C.) 66 Comm. ■». Foss, (14 G,) 80 50 502; 118. As to the authority of the county com- missioners to grant licenses under St. 1832, Ch. 266, see Comm. v. Markoe, (17 P.) 34 465; Comm. ». Jordan, (18 P.) 35 228. 119. Under P. S., Ch. 102, §§ 2 and 8, and St. 1882, Ch. 164, a mandamus will not lie to the mayor of a city to compel him to sign a license to a common victualler, if the mayor is not satisfied that he has complied with all the provisions of the statutes. Deehan v. Johnson, 141 23. (2.) Sufficiency; validity; school house within 400 feet, 120. Under the existing statute, the mayor's signature to a license is a merely ministerial act, and may be enforced by mandamus, where the license has been granted by the board of j aldermen. Braconier *. Packard, 136 50. See, however, ante, art. 119. 121. It is no objection to the mandamus, that the board did not act in accordance with their usual modes and rules of procedure, they hav- ing suspended the rules. Braconier v. Packard, 136 50. See, also, Holt v. Somerville, 127 408. 122. Where the published notice of the ap- plication gave only the initial of the applicant's middle name, and described the building as "K's block, on the easterly side of M. street, at the corner of S. street," neither street being numbered, and the applicant's shop was in K's block, the third from the corner, it was held that the notice was sufficient. Braconier ». Packard, 136 50. 123. A license, which sets forth the name of the street only, and not the building, is defec- tive, and will not justify a sale, although the fault is that of the selectmen. Comm. v. Merriam, 136 433. 124. A certificate upon a license, authorizing a change of the place of business, is invalid, unless authenticated by the signatures of the chairman of the selectmen and the town clerk. Comm. ». Merriam, 136 433. 125. As to the sufficiency of a license, with respect to a substantial compliance with the formal requirements of the statute of 1875, see Murphy v. Nolan, 126 542. 126. St. 1870, Chs. 389, 390, as to prohibition of the sale of malt liquor by vote of a town, are satisfied by a "vote by hand. Comm. v. Doe, 108 418. 127. Under the statute of 1882, Ch. 220, for- bidding a license for a building on the same street, and within 400 feet of a public school, if the school house lot runs through from street to street, or is on the corner of two streets, the school house is deemed to be upon the street or streets from which it is entered. Comm. «. Jenkins, . 137 572; Comm. v. Heaganey, 137 574. INTOXICATING- LIQUOKS, HI, (2), (3). 863 128 And the building specified in the license is subject to the same rule. And where it has a front entrance on one street, and a back en- trance on another, from the line of -which it is 30 feet distant; and a school house stands within 400 feet, with entrances from that street, and also from a third street; the license is not a pro- tection against an indictment for a nuisance, or a compla ; nt for an unlawful sale. Comm. d. Heaganey, 137 574. See, also, Comm. n. Whelan, 134 206. 129. Upon the trial of such a complaint, where the superintendent of public buildings and the superintendent of schools, each testified that he had no knowledge that a certain primary- school was a public school, and the clerk of the school hoard produced a manual issued by him, under the direction of the school board, in which that primary school was included in the public schools, it was held that the manual was ad- missible in evidence. Comm. v. Whelan, 134 206. 130. Where the defendant's premises ran through from one street to another, and on the rear street there was a school within 400 feet of a gate, opening on a walk leading to the build- ing, it was held that the question was for the jury, whether the gate was open for the use of all persons having occasion to go to the pre- mises. Comm. 1>. Everson, 140 434. (3.) Effect; conditions, and violations thereof}- forfeiture ; revocation. 131. Upon the trial of a complaint, if the defendant relies upon a license as a justification, the burden is upon him to prove a license broad enough to authorize the acts complained of. Comm. i). Rafferty, 133 574. 132. And if the proof is that the defendant had a license to sell liquors, but its class is Dot shown, an indictment for a nuisance, for keep- ing a tenement for the sale of liquor, will be sustained. Comm. v. Rafferty, 133 574. 133. One licensed as a common victualler, and to sell liquor to be drunk on the premises, may be convicted of keeping "a public bar," if he sells liquor indiscriminately to whomso- ever calls for it, not solely in connection with food, although the sales are made over a lunch counter. Comm. v. Rogers, 135 536; Comm. «. Salmon, 136 431. 134. And under P. S., Ch. 100, § 12, as amended by St. 1882, Ch. 259, § 1, if he main- tains a partition, etc., which interferes with a view of the premises, his license is ipso facto void, and affords no protection. Comm. e. Salmon, 136 431. 135. The provision, as thus amended, applies to a licensee, who maintains shutters upon his premises on Sunday, whether he is, or is not, carrying on business on that day. Comm. v. Auberton, 133 404; Comm. s.Casey, 134 194. lo6. As to the sufficiency of a complaint against a licensee, for maintaining "a certain screen, blind, shutter, curtain, and partition," (-■((' S66 Comm. ■». Gibbons, 134 197. As to such a complaint before the amend- ment of 1882, see Comm. v. Auberton, 133 404. 137. A frame covered with wire netting, in a window, is within the statutor j prohibition; and is covered by an allegation that tne defendant maintained "screens, blinds, shutters, partitions, and other obstructions." Comm. ■». Auberton, 133 404. 138. Before the amendmeut of 1882, the statute did not avoid the license for maintaining the obstruction, but subjected the licensee to a penalty. Comm. v. Costello, 133 192. 139. Now such an act renders the license void, without any proceeding to invalidate it. Comm. ■». Barnes, 138 511. 140. The words " no such licensee," in P. S., Ch. 100, 1 12, refers to, every licensee, not merely to one who has been required by the board to remove screens. Comm. v. Rourke, 141 321. 141. The statute is violated by maintaining a curtain which interferes with a view of a part of the interior, not used for the sale of liquor. Comm. i). Worcester, 141 58. 142. The jury may convict for maintaining such blinds on the outside of the roo^, that a person can look into the room only by stoop- ing and peering through the slats. Comm. v. Costello, 133 192. 143. As to the sufficiency of the evidence to convict under St. 1880, Ch. 239, § 2, as amended by St. 1881, Ch. 225, prohibiting blinds , etc., see Comm. ■». Costello, 133 192. .44. The licensee may be convicted of main- taining a curtain interfering with a view of the premises, although it was placed there by his servant, in his absence and against his orders. Comm. v. Kelley, 140 441. 145. If one is licensed to sell "in the front room and rear room," the partition between the two rooms is not within the statute, unless the licensing board requires its removal. Comm. 1>. Barnes, 140 447. 146. If the complaint describes the premises as "the front room in the first story" of a certain house, the fact that the license covers also the cellar does not constitute a variance. Comm. n. Keefe, 140 301. - 147. One who has a license of the first class may be convicted of keeping and maintaining a tenement for illegal sale, etc., on, proof of two sales to infants, and one to an intoxicated person. Comm. v. Tabor, 138 496. 48. Under St. 1875, Ch. 99, § 12, a licensee may be convicted for unlawfully keeping liquor with intent to sell, upon the production of the record of the mayor and aldermen, showing that the board declared the license forfeited, after a hearing upon an oral complaint, the 864 INTOXICATING LIQUOKS, III, (3); IV 3 (1), (2); V, (1). licensee being present, and a finding that he had violated the provisions of the license. Comm. v. Hamer, 128 76. 149. If any notice of the revocation to the license is required, oral notice suffices. Comm v. Hamer, 128 76. 150. But a record showing only that the board declared the license "revoked," with oral evidence that the licensee was heard, is not sufficient to establish a forfeiture. Comm. v Moylan, 119 109. 151. Insufficient minutes of the selectmen cannot be rendered competent evidence of a revocation, by an amendment made in court, with the permission of the judge, by one of the selectmen, who acted as clerk of the board, in the absence of the others. Comm. v. McGarry, 135 553. 152. Upon an application to a district court for a revocation under P. S., Ch. 100, § 7, the applicant must prove that he is the owner of adjoining real property, and the licensee must have notice. Young v. Blaisdell, 138 344. 153. A clause in a license, requiring the clos- ing of all entrances, except from the public street, is broken by keeping open a door in the rear, opening upon a driveway to the street. Comm. •». Ferden, 141 28. 154. Upon trial of a complaint for placing a screen, etc., the jury may infer from the defendant's admissions that he had a license. Comm. v. Cameron, 141 83. 155. Upon the trial of such a complaint, the defendant who applied for, accepted, and acted under a common victualler's license, cannot set up that he was not duly licensed. Comm. «. Rourke, 141 321. IV. Crra, Action. [As to the civil action for selling to an infant, see ante, II, (1).] (1.) For damages caused by another's Intoxication. [St. 1875, Ch. 99, § 14; St. 1879, Ch. 297, § 1; St. 1880, CH 256. § 1; P. S., Ch. 100 § 21. 156. Under St. 1879. Ch. 297, a wife cannot maintain an action for the death of her husband, caused by intoxication, produced by liquor sold or given to him by the defendant. Barrett v. Dolan, 130 366; Harring- ton v. McKillop, 132 567. 157. A husband can maintain an action under that statute, for injury to his "means of sup- port," by the intoxication of his wife. Moran ». Goodwin, 130 158. 158. It is no defence that the defendant had a license, which he has not violated. Moran v. Goodwin, 130 158. 159. It is for the jury to determine, whether and how far the intoxication was an injury to the plaintiff's "means of support." Moran v. Goodwin, 130 158. 160. An action lies in favor of a wife, if the intoxication of her husband was caused in part by liquor sold to him by the defendant, although it was also caused in part by liquor sold to him by others. Bryant v. Tidgewell, 133 86. 161. Under a declaration by a wife, alleging that on divers days, etc., the defendant sold intoxicating liquor to her husband, in conse- quence whereof he acquired confirmed habits of intoxication, and became and was habitually drunk, the plaintiff may prove sales of liquor which produced intoxication on more than two occasions. Bryant v. Tidgewell, 133 86. 162. The action cannot be maintained by the husband for his wife's intoxication, where they were married in another state, and the marriage was absolutely void by the laws of that state. Blaisdell v. Bickum, 139 250. (2.) For furnishing to a drunkard, after notice. [St. 1885, Ch. 99, § 16; F. S., Ch. 100, § 25.] 163. This is a civil action, and is governed by the rules applicable to such actions. George v. Gobey, 128 2o9. 164. A master is liable to the penalty, if his servant, in the course of the master's business, sells liquor in the case prescribed, although the sale was made without the master's knowledge, and against his orders. George «. Gobey, 128 289. 165. Qu., whether he would be liable if the servant made the sale for his own purposes. George v. Gobey, 128 289. V. Criminal Prosecution. [See, also, ante, II; III.] (1.) General principles. LSee. also, ante, I, (1).] 166. Apart from any special provision of the statute, for punishing an act prohibited by it, such an act is a misdemeanor. Comm. v. Willard, (22 P.) 39 476. 167. It is no defence to a complaint, for sell- ing to a person unknown to the complainant, that the latter's only knowledge of the offence was derived from others. Comm. ». Crawford, (9 G.) 75 129. 168. It is not necessary that the complainant should be present at the trial, so that the de- fendant may examine him. Comm. v. Harrison, (11 G.) 77 310. 169. An indictment under St. 1852, Ch. 322, § 7_, might be maintained without proof that no action of debt, or other concurrent remedy, had been brought. Comm. v. Peckham, (2 G.) 68 514. INTOXICATING LIQUORS, V, (1), (2), (3); (4), (A). 865 170. Guilty knowledge that the defendant is acting in violation of the law, is not essential to the offence of unlawfully s.lling liquor. Comm. ». Unrig, 138 492. 171. Thus, an innkeeper having a license may be convicted, under the nuisance act, for selling to one to whom the license does not au- thorize a sale although the sale was made by his servant, in ignorance of the fact that the nurchaser was one of such a class. Comm. v. Uhrig, 138 492. 172. So as to sales on the Lord's day to per- sons not guests. Comm. v. Barnes, 138 511. (2.) Indictments complaint. [See Indictment, III; IV; VII; VIII, («).] (3.) Burden of proof. 173. At common law, the burden was upon the government to prove that the defendant was not duly licensed. Comm. v. Thurlow, (24 P.) 41 374. 174. This rule was changed by St. 1844, Ch. 102, enacting that the presumption should be that the defendant was not licensed. For rulings under that statute, see Comm. «. Kelly, (10 C.) 64 69; Comm. «. Tuttle, (12 C.) 66 502; Comm. e. Lahy, (8 G.) 74 459; Comm. v. Eyan, (9 G.) 75 137; Comm. v. Murphy, (10 G.) 76 1; Comm. v. Hill, (4 A.) 86 589. 175. Upon a complaint for selling liquor on the Lord's day, against an innkeeper, having a first class license, the burden of proof is upon him to show that the purchasers were guests. Comm. d. Towle, 138 490; Comm. v. Barnes, 138 511. 176. The existing s'atute, St. 1864, Ch. 121; P S., Ch 214, § 12, as far as it affects prosecu- tions under the liquor laws, is subs.antially identical with St. 1859, Ch. 160; G. S., Ch. 172, § 10. Under this statute, the burden is upon the defendant to prove, not only a valid and sufficient license, but one which is broad enough to justify any act proved against him, whieh would be unlawful without a license au- thorizing him to do it. Comm. v. Bafferty, 133 574. See. also, Comm. «. Carpenter, 100 204; Comm. ». Shea, 115 102; Comm. v. Belou, 115 139; Comm v. Curran, 119 206; Comm. v. Intox. Liq., 122 8; Comm. v. Intojj. Liq., 122 36. [See, also, ante. III, (1).] 177. Where the defendant relies for his justi- fication upon the fact, that under the former statutes, the town had or had not voted to pro- hibit or allow the sale proved against him, the burden is upon him to prove such a vote, or failure to vote. Comm. v. Kennedy, 108 292; Comm. ». Bibcock, 110 107; Comm. «. Dean, 110 357; Comm. v. Leo, 110 414. Vol, 1—109 178. The statute does not apply to a case, where the guilt of the defendant depends upon the license or authority of a third person. Comm. v. Locke, 114 288. 179. But in such a case the want of a license or authority may be inferred from the circum- stances. Comm. v. Locke, 114 288. 180. As that persons to whom sales were made were not druggists, apothecaries, or phy- sicians. Comm. v. Livermore, (4 A.) 86 434. 181. Upon a complaint for unlawfully keep- ing or exposing liquor, with intent to sell it, the burden of proof of the defendant's intent is upon the government, and the presumption is that the liq" or was kept for lawful purposes. (.oram. v. Blood, (11 G.) 77 74; Comm. v. Dowdican, 114 257. [See, also, ante, II, (5). As to the burden, with re- spect to all matters not covered by the statute, see Evidence, III, (1); III, (2).] (•I.) Evidence. (A.) Time and place. 182. Upon a complaint for keeping, with in- tent to sell, the government may show, upon the question of intent, that the defendant had liquor in his saloon, a week or ten days later than the day specified in the complaint. Comm. v. Matthews, 129 487. 183. A witness testifying to a sale may, for the purposing of fixing the time, state that he. testified to the same sale, at the preliminary hearing before the magistrate. Comm. v. Sullivan, 123 221. 184. Upon the trial, on an appeal, the com- plainant testified to two sa'es. and that they were the same to which he had testified in the police court, and it was held that the fact that there was testimony of others in the police court to other sales, was immaterial. Comm. v. McGrath, 102 485. 185. Upon such an appeal, evidence of a sale at a different time and place, from those of the sale proved below, is admissible. Comm. v. Crawford, (9 G.) 75 129. 186. Where the sale testified to in the appel- late court is in fact the same, as that tesiified to in the court below, the fact that the witness gives different dates in the two courts, is imma- ' Comm. «. Mahoney, 134 220. See, also, Comm. v. Dillane, (11 G.) 77 67; Comm. n. Burk, (15 G.) 81 404. 187. And if the proof corresponds to the allegations of the complaint, the jury may pre- sume that the two offences were the same. Comm. ii. Hogan, (11 G.) 77 315; Comm. v. Burke, (14 G.) 80 81; Comm. v. Carroll, (15 G.) 81 412; Comm. «. Fields, 119 105. 188 Where, upon the trial of a complaint for keeping liquor in Boston with intent to sell, a witness testified that the defendant kept liquor 866 INTOXICATING LIQUORS, V, (4), (A), (B). at the corner of H. and C. streets, the jury may find that those streets in Boston were intended. Comm. v. Dearborn, 109 368. 189 Upon the trial of a complaint for keep- ing a liquor tenement, a witness, who has testi- fied that he has repeatedly seen the defendant there, apparently controlling the premises, may testify that during the time specified in the complaint, he has not seen him doing business elsewhre. Comm. ■». Mclvor, 117 118. 190. The record of proceedings for forfeiture, which resulted in. favor of the defendant, alleging that he kept the liquor on the same day, as that specified in a complaint for keeping with intent to sell, is inadmissible for the defendant upon the trial of the latter, without proof that the times were the same, although it is admitted that the liquors vere the same. Comm. v. Doyle, 132 244. 191. For rulings upon questions of evidence as to time, upon complaints under the former statutes, charging the defendants with being common sellers of liqurs, see Comm. v. Briggs, (11 Met.) 52 573; Comm. i). Elwell, (1 G.) 67 463; Comm. v. Wood, (4 G.) 70 11 j Comm. ■». Arm- strong, (7 G.) 73 49; Comm. v. Gard- ner, (7 G.) 73 494; Comm. e. Melley, (14 G.) SO 39; Comm. t: Boyden, (14 G.) 80 101; Comm. ■». Leighton, (7 A.) 89 528. 192. It is no objection that the evidence shows, that the defendant is punishable for keeping a liquor nuisance. Comm. v. Maloney, (16 G.) 82 20. (B.) Act of selling. [See, also, ante, II, (2) ; II, (3).J 193. An unlawful sale may be proved by a person other than the purchaser. Comm. v. Tinkham, (14 G.) 80 12. 194. The fact that the wit ess, proving the fact, is the agent of an association to procure evidence of such sales, is not ground for an ex- ception to the judge's refusal to instruct the jury, that his testimony is to be received " with great caution and distrust," or the like, if he rules that the jury may take that fact into con- sideration. Comm. v. Mason, 135 555. 195. The refusal of the judge to instruct the jury, that the fact that such a witness did not fortify his testimony, by producing the persons to whom the sales were made, was to be con- sidered by them, is not ground for an excep- tion. Comm. v. Farrell, 137 579. 196. It is sufficient that the witness testifies that the defendant "sold" the liquor, without giving details. Comm. «. Carroll. (15 G.) 81 409. 197. The provisions, St. 1855, Ch. 215, § 34; St. 1869, Ch. 415, § 35; St. 1875, Ch. 99, § 17; P. S , Ch. 100, § 26, making a delivery prima facie evidence of a sale, are constitutional. Comm. v. Rowe, (14 G) 80 47. See, also, Comm. v. "Wallace, (7 G.) 73 222. 198. And it is unnecessary, to give them appli- cation, that the fact should be set forth in detail in the indictment or complaint. Comm. •». Rowe, (14 G.) 80 47. 199. The statute does not preclude the gov- ernment from proving a sale by circumstantial evidence. Comm. v. Campbell, 116 32. 200. Evidence that a waiter took wine into an eating room, and brought back money, is sufficient evidence of a sale. Comm. v. Reichart, 108 482. 201. Where the defendant's shop is accessible on Sunday, only through the rooms occupied by him as a dwelling, if a person calls on Sun- day at the dwelling rooms for liquor, and the defendant takes him into the shop, a delivery there is not a delivery within a dwelling house. Comm. ■». Harrison, (11 G.) 77 310. See, also, Comm. ■». Thrasher, (11 G.) 77 57. 202. Evidence that the defendant's wife was on the premises is admissible, to show that they were under his control. Comm. *. Hogan, (11 G.) 77 315; Comm. v. Hurley, (14 G.) 80 411. 203. Where the bar where liquor is sold is in a different room, from that where the defendant carries on another business, but connected there- with, the question, whether the defendant con- trols the bar room, is one of fact for the jury, depending upon the circumstances shown in evidence. Comm. v. Hoye, (9 G.) 75 292; Comm. v. Sisson, 126 48. 204. The fact that a witness, testifying to a sale to himself, djd not testify before the grand jury, is sufficient to be submitted to the jury upon an indictment, charging a sale to a person to the jurors unknown. Comm. «. Herrick, (12 G.) 78 125. 205. The testimony of a witness, that he bought liquor from a man whom they called by the defendant's surname, and who "looked pretty near like him," but whom he would not swear was the defendant, is not a sufficient identification. Comm. v. Snow, (14 G.) 80 385. See, also, Comm. v. Munsey, 112 287. 206. A servant of the defendant,' who has testified that no liquor was sold in the defend- ant's shop on that day, cannot be asked on cross examination, whether he had seen liquor in the shop on a subsequent day. Comm. •». Page, (6 G.) 72 361. 207. Evidence that there were implements and materials for selling*liquor in the defend- ant's shop, is admissible. Comm. v. Lincoln, .(9 G.) 75 288. 208. Under the R. S., it was held that the defendant could not prove that the liquor was bought from him to be used as a medicine, unless he was a druggist. Comm. v. Kimball, (24 P.) 41 366; Comm. v. Sloan, (4 C.) 58 52. 209. Where the defendant was an innkeeper's servant, the jury may convict him upon proof INTOXICATING LIQUOES, V, (4), (0). 867 of his selling and taking pay therefor, when the nronrietor was in another room. V Comm. 0, Sinclair, 138 493 210. And a licensed person cannot he con- victed upon proof of a sale, after eleven o'clock at night, by his servant, in violation of his fiTflBIS Comm. 0. "Wachendorf, 141 270. (C.) Keeping with intent to sell; keeping tenement for unlawful [See, also. Nuisance, III, (2).] 211. Upon the question of the defendant's in- tent to sell liquor in his possession, evidence is admissible of previous sales of liquor in his shop, although not in his presence. Comm. v. Dearborn, 109 368; Comm. v. Stoehr, 109 365. 212. So is evidence of the condition of the room, as to appointments and fixtures the next morning. Comm. iir Powers, 123 244. 213. So is evidence that there were jugs in his house, which had recently contained liquor. Comm. 0. Timothy, (8 G.) 74 480. 214. And circumstantial evidence, such as that there was a barrel of ale on tap in the house, an empty ale barrel in the shed, and in the house an ale pump, bottles with liquor, and other conveniences for the sale of liquor, is competent, upon a complaint for keeping with intent to sell, or keeping a tenement for unlaw- ful sale. Comm. «. Levy, 126 240. See, also, Comm. v. Boyden, (14 G.) 80 101; Comm. «. Whalen, (16 G.) 82 23; Comm. 0. Dee, 108 418; Comm. 0. Conneally, 108 480; Comm. 0. Intox. Liq., 116 24; Comm. 0. Gafley, 122 334; Comm. 0. Wallace, 123 401; Comm. 0. Gallagher, 124 29. 215. For a ruling in a case where implements and conveniences were deemed insufficient evi- dence of sale, or attempt to sell, see Comm. 0. Intox Liq;, 105 595, ex- plained in Comm. 0. Intox. Liq., 116 24. 216. So, under the former statute, evidence of the possession of implements, etc., was ad- missible, upon the question of being a common np||p*i Comm. 0. "Webster, (6 A.) 88 593. 217. Where sales of malt liquor are permitted, the evidence of implements, etc., is less signifi- cant than when they are forbidden. Comm. 0. Cogan, 107 212. 218. The fact that liquor is kept with other merchandise, is a circumstance tending to show that it is kept for sale. Comm. 0. Hayes, 114 282. 219. Proof that persons came out of the house ■with pitchers, jugs, and pails, and' that the de- fendant's wife made intoxicating home-brewed beer, and the defendant sold it, is competent on the question of unlawful use of the premises. Comm. 0. Hey wood, 105 187. 220. Proof of unlawful sales will sustain an indictment for unlawful keeping. Comm. 0. Greenen, (11 A.) 93 241; Comm. 0. Kennedy, 108 292. See, also, Comm. 0. Farrand, (12 G.) 78 177. 221 . It is not necessary that the liquors should be kept for sale in the same house; if they are intended to be sold in another place, the charge is proved. Comm. 0. Aaron, 114 255; Comm. 0. Intox. Liq., 116 24; Comm. 0. Mc- Cluskey, 123 401. 222. If the liquors are kept, where they are not likely to be seen by persons visiting the premises, it is for the jury to say whether they were to be sold as opportunities were presented, although they were not offered to persons who might purchase. Comm. 0. Fraher, 126 56. 223. An indictment for keeping a tenement, used by the defendant for unlawful sales, and for unlawful keeping of liquors for sale, is sup- ported by pr^of of either act; but proof of keeping the place for the mere purpose of mak- ing unlawful sales, without proof of actually keeping liquors for sale, is not sufficient. Comm. 0. Wel.-h, (1 A.) 83 1. See, also, Comm. 11. Carolin, (2 A.) 84 169; Comm. 0. Conneally, 108 480; Comm. 0. Finnegan, 109 363. 224. Where the defendant is an innkeeper, having a first class license, he cannot be con- victed of keeping and maintaining a tenement, etc. , on proof of one sale of liquor, which was carried away by the buyer. Comm. v. Patterson, 138 498. 225. But he may be convicted of that offence, upon circumstantial evidence of sales on the Lord's day, to persons not guests. Comm. 0. Leighton, 140 305. 226. Upon a complaint for unlawfully ex- posing and keeping for sale intoxicating liquors, with intent to sell the same, if the defendant kept them with that intent, it is immaterial whether they were exposed or concealed, or whether an officer's proceedings in executing a search warrant, were regular or not; and evi- dence of a sale two days previously is compe- tent. Comm. 0. Henderson, 140 303. 227. A complaint for keeping, etc., a tene- ment for unlawful sale and unlawful keeping of liquors, is supported by proof of unlawful keeping on on a single occasion, within the time covered by the complaint. Comm. 0. Kerrissey, 141 110. See, also, Comm. 0. Higgins, (16 G.) 82 19; Comm. 0. Gallagher, (1 A.) 83 592; Comm. 0. Cogan, 107 212; Comm. 0. Mitchell, 115 141. 228. Upon the issue of an unlawful use, and, also, upon that of keeping with intent to sell, proof that intoxicated persons were seen in the building, or going in and out of tlie building, is competent for the jury, in connection with proof of possession of ]iquor,"implements, etc. Comm. 0. Taylor, (14 G.) 80 26; Comm. 0. Higgins, (16 G.) 82 19; 868 INTOXICATING LIQUOES, V, (4), (C). Comm. v. Kennedy, 97 224; Comm. v. Berry, 109 366; Comm. v. Dowdican, 114 257; Comm. v. Kane, 116 8; Comm. e. Mead, 140 300. See, also, under the former statutes, upon the question, whether the defendant was a common ' Comm. v. Maloney, (16 G.) 82 20; Comm. «. Leighton, (7 A.) 89 528; Comm. v. Van Stone, 97 548. 229 The defendant cannot contradict the tes- timony of the purchaser, by proof that he had forbidden her the premises, although she denies it on cross examination: he cannot ask an officer, who seized liquor on his premises, whether he knows other places in the town where liquor was unlawfully sold, and which he has not searched. Comm. v. Fitzpatrick, 140 455. 230. A witness may testify generally that he has seen persons going in there sober, and com- ing out drunk. Comm. b. Dowdican, 1 14 257. 231 Evidence that liquor was found in the defendant's cellar, that he kept a saloon at a dis- tance of an eighth of a mile, that he had been convicted of an unlawful sale of liquor there, that a boy shortly before brought liquor to the saloon, similar to that in the cellar, and that he came by thj street which led to the house where the liquor was found, is competent upon the ques- tion whether the liquor was kept with intent to sell unlawful y. Comm. v. Intox. Liq., 116 27. 232. Upon the question of keeping a tene- ment for unlawful sales, evidence of finding liquor in the cellar under a large building, where the defendant kept a saloon, is admissible, although there is no evidence that the cellar and the saloon were connected. Comm. v. Pierce, 107 487. See, also, Comm. v. Shaw, 116 8; Comm. v. Sisson, 126 48. 233. For rulings in other special cases, as to the admissibility of evidence of finding liquor, in places other than that where the defendant is charged with committing the unlawful act, see Comm. v. Kinsley, 108 24; Comm. e. Hayes, 1 14 282; Comm. i>. Cronin, 117 140; Comm. v. McCluskey, 123 401; Comm. v. Kahlmeyer, 124 322. 231. Such evidence, where it consists of the testimony of an officer with a search warrant, is not rendered inadmissible by the officer's mis- conduct in executing the warrant. Comm. ». Welsh, 110 359. 235. Upon a complaint agiinst a common seller, under the former statute, the testimony of a witness that he had liquor in the office of the defendant's public house, but did not pay for it, is admissible to corroborate evidence of sales to anoth r person. Comm. v. Munn, (14 G.) 80 3G1 236. Upon the question of keeping with in- tent to sell, evidence that the defendant stated five months previously, that he was the owner of the place where the liquor was found, and that he had been seen there since, is competent to show that he was the person who kept the liquor. Comm. v. Dearborn, 109 368. See, also, Comm. «. Haher, 113 207; Comm. v. Kelley, 116 341. 237. So the defendant's previous declarations that he intended to sell liquor, or previous declarations from which such an intent may be inferred, are competent upon the question of selling, keeping with intent to sell, or main- taining a tenement for unlawful sales." Comm. v. Kimball, (24 P.) 41 366; Comm. «. Davenport, (2 A.) 84 299. 238. Upon either question, the concealment or destruction of liquor by the defendant, or those in his employent, upon the entrance of an officer, or upon the occurrence of any other event, which might lead to his prosecution, is competent for the consideration of the jury, in connection with other proof. Comm. v. Cotter, 97 336; Comm. v. Doe, 108 418; Comm. v. Sheehey, 116 8; Comm. v. Wallace, 123 400; Comm. v. Kahlmeyer, 124 322; Comm. v. Daily, 133 577. - 239. So is a request to a witness to conceal the fact that he had liquor. Comm. v. Jennings, 107 488. 240. So is a false statement that he had no liquor. Comm. v. Glennan, 116 46. 241. So is an attempt to bribe the officer who arrested him. Comm. ■». Wallace, 123 400. 212. Upon the question of keeping with, intent to sell unlawfully, evidence that the defendant keeps a saloon or public house is. competent. Comm. v. Intox. Liq., 107 386. See, also, Comm. v. Madden, (1 G.) 67 486; Comm. v. Norton, (16 G.) 82 30. 243. So that the place in question bore a sign with the defendant's name upon it. Comm. *. Owens, 114 252; Comm. v. Shaw, 116 8; Comm. v. Intox. Liq., 122 36; Comm. v. Sisson, 126 48. As to the effect of a sign put up, where the defendant held a license, and left after his license expired, see Comm. v. Collier, 134 203. 244. As to the effect of a witness describing the place as " D.'s hotel," (D. being the defend- ant,) and as "his place," and the proper instruc- tions to the jury with respect thereto, see Comm. v. Dow, (12 G.) 78 133. 245. Where liquor was seized at the railroad station, under St. 1869, Ch. 415, § 44, as kept for sale by A, and A appeared as claimant, evidence that he kept a shop on Duncan street, and that the liquor was marked with his nam& andthe address, ' ' Duncan street," and as to what he said, at the time of the seizure, was properly admitted. Comm. «. Intox. Liq., 110 500 246. For a case where marks on the liquor, and gesticulations, on the part of a person unconnected therewith, were not deemed suf- ficient, that any body was intending to sell it unlawfully, see Comm. v Intox. Liq., 116 21. INTOXICATING LIQUOES, V, (4), (0), (D); (5). 869 247. An admission by the defendant that a card with her name, and the words " d* aler in liquors," etc., was her card, which she had printed about a year before, is competent upon a trial in October, on a complaint for keeping a house for unlawful sales, from the first of the preceding May to the 27th of September. Comm. i). Twombly, 119 104. 348. So cards, taken from jugs which con- taine I the liquor, and marked with the names of the different kinds of liquors and of the de- fendant, are admissible upon a trial for keeping ■with intent to sell. Comm. 1). Dearborn, 109 368. 249. For various rulings upon the evidence to support an indictment for keeping with intent to sell, where the defendant was em- ployed to drive a delivery wagon, by a person licensed to sell in another town, see Comm. i>. Cotton, 138 500; Comm. v. Fisher, 138 504. 250. For rulings as to evidence to charge a married woman, where her husband was upon the premises, but not in the room, see Comm. v. Flaherty, 140 454. p.) Character of the liquor. [See, also, ante, II, (1).] 251. Upon a complaint for keeping with intent to sell, it is for the government to prove that lager beer, kept by the defendant, was kept ■with that intent; it is not necessary to show that it was intoxicating, or that it contained more than three per cent of alcohol. Comm. v. Snow, 133 575. See, also, Comm. «. Curran, 119 206; Comm. v. Whelan, 134 206. 252. An expert in the manufacture of beer cannot be asked, whether any one can determine, from the taste alone, the proportion of alcohol m a given sample of beer. Comm. v. Collier, 134 203. 253. Upon the question whether the oeer sold was lager beer or Bavarian hop beer, which depended up :n whether it came from Stanley's, it is competent to show that the barrel from which it was drawn had Stanley's label upon it. Comm. v. Collier, 134 203. ♦i, 2 ^-' f 'witness may give his opinion as to the kind of liquor from the smell thereof. Comm v. Daily, 133 577. See, W>, Comm. v. Timothy, (8 6.) 74 480; Comm. v. Conneally, 108 480. 255. The testimony of a witness that he aranK something which tasted like rum, but S? 5°,-, rum '" and " smelt alcoholic, and looked like whiskey, but was not exhilarating or intoxicating;" that he should say "it might put a quietus on a man;" and that after he prank it he went to sleep and slept for two ™urs, is sufficient to sustain a conviction Comm. ii. Peto, 136 155 „* 2 fL 6 ' A witness may testify as to the writing «n me labels, attached to the jugs and decanters in the defendant's shop, without producing them or accounting for their nonproduction. Comm. «. Blood, (11 G.) 77 74. 257. Testimony that in answer to a call for whiskey, the defendant poured something from a jug; and that it was "reddish," is admissible. Comm. ii, Owens, 114 252. 258. So the question, "What did it look like ?" and the answer, "Whiskey," are admsi- sible. Comm. v. Dowdican, 114 257. 259. So testimony that the defendant's shop contained counters, on one of which was a pitcher containing " something that looked like ale or beer," and " a pump which looked like a beer pump," is competent. Comm. v. Lamere, (11 G.) 77 319. 260. Where the purchaser testifies for the government that the liquor sold was weak beer, having no intoxicating effect, the government may question him, in the nature of a cross examination, and may show that in the court below he testified that it was lager beer. Comm. v. Moinehan, 140 463. 261. Upon a complaint for exposing and keep- ing intoxicating liquors, where a chemist and State assayer testifies that he analyzed the liquor, and found it to contain more than three per cent of alcohol, it was held, that the jury might infer that he understood the purpose of the analysis, and meant to testify that it was made according to P. S., Ch. 100, § 27. Comm. v. Magee, 141 lil (5.) Conviction; sentence; former con- viction, or acquittal. [See, also, Conviction and Sentence; Pobmeb Adjudication, II.] 262. An acquittal or conviction, upon a charge of keeping a tenement for unlawful sales, from January 1 to May 28, is a bar to a subsequent complaint for so keeping it from January 1 to August 20. Comm. v. Robinson, 126 259. 263. Aliter, where the first charge laid the offence on the 3d of June, with a continuando, and the second laid it on the second of June. Comm. «. Keefe, (7 G.) 73 332. 264. A person convicted before the same jus- tice, upon a complaint for keeping a disorderly house, and illegally sentenced thereupon, and also upon a complaint for an unlawf . 1 sale of liquor, the sentence upon which is legal and regular, and held under both warrants during the whole time of his imprisonment, is lawfully imprisoned, and the justice is liab'e, at most, for nominal damages, for issuing the first war- rant. Doherty «\ Munson, 127 495. 265. An offence, under the statute of \&lfj, of unlawfully keeping liquor for sale, is not " a similar offence" to that under the G. S., of keeping and maintaining a tenement for unlaw- ful sale and unlawful keeping, within the mean- ing of St. 1866, Ch. 280, § 1; P. S., Ch. 215, §8. Comm. v. Fontain, 127 452. See, also, Comm. v. Hanley, 140 457 870 INTOXICATING LIQUOES, V, (5); VI, (1). 266. And a conviction or acquittal of one is not a bar to a prosecution for the other, although the evidence is the same in each case. . Comm. v. McCauley, 105 69; Comm. v. Sheehan, 105 192; Comm. v. Mc- Shane, 110 502; Comm. v. Hanley, 140 457. 267. So keeping a tenement for unlawful sales, and being a common seller, were distinct offences under the former statutes, and a con- viction or acquittal of one was not a bar to a prosecution for the other, although tho same acts were relied upon. Comm. v. Roland, (12 G.) 78 132; Jomm. v. Bubser, (14 G.) SO 83; Comm. «. O'Donnell, (8 A.) 90 548; Comm. «. Cutler, (9 A.) 91 486; Comm. v. Hogan, 97 122; Comm. v. Carpenter, lOO 204. 268. So as to keeping open on Sunday, and keeping the same shop at the same time for un- lawful sales. Comm. ». Shea, (14 G.) 80 386. 269. So as to being a common seller, and making a single unlawful sale. Comm. v. Hudson, (14 G.) 80 11. 270. A record upon a complaint charging an unlawful keeping for sale, is admissible upon a complaint for keeping a tenement for unlaw- ful sales. Comm. i>. Hazeltine, 108 479. 271. But the jury must be satisfied that the place was the same. Comm. v. Austin, 97 595. 272. Evidence withdrawn upon a trial for one offence, may be introduced upon a subse- quent trial for another offence. Comm. v. Leonard, (9 G.) 75 285. 273. A verdict of guilty, upon which no sen- tence has been pronounced, where the cause is pending upon exceptions, is not a bar to a second prosecution for the same offence. Comm. e. Fraher, 126 265. 274. A man's conviction is not a bar to the prosecution of his wife for a like offence, at the same time and place. Comm. v. Heffron, 102 148. 275. A defendant in an indictment containing two counts for different offences at the same time, who has pleaded guilty to the second count, may be tried on the first, and, if he is convicted, a nolle prosequi on the second may "t)G cntcrc't 1 Comm. v. Mead, (10 A.) 92 396. 276. A conviction upon an indictment for maintaining a liquor nuisance on July 1, 1872, with a eontinuando to May 1, 1873, does not bar an indictment found at the same session, for maintaining the same nuisance on May 1, 1873, with a eontinuando to June 12, 1873. Comm. n. Connors, 116 35. See, also, Comm. «. Cain, (14 G.) 80 9. 277 One, convicted on several complaints, charging him with unlawful sales to the same person, on different days, upon evidence of one sale only, may be sentenced upon one, and have a new trial as to the others. Comm. * Eemby, (2 G.) 68 508. 278. A complaint charging a sale to D. C. H. on one day, and to D. 0. H. on another, con- tains two counts, and an acquittal on the first charge does not bar a trial on the second. Comm. v. Dillane, (11 G.) 77 67. 279. Under St. 1855, Ch. 215, § 3i, the de- fendant could not be adjudged guilty upon a plea of nolo contendere, unless it was received with the prosecutor's consent. Comm. o. Adams, (6 G.) 72 359. 280. Tor rulings under St. 1852, Ch. 322, see As to the bond on conviction. Comm. v Kelly, (9 G.) 75 259. As to previous conviction and second offence. Tuttle v. Comm., (2 G.) 68 505; Comm. n. Daley, (4 G.) 70 209. As to sentence upon conviction upon three counts, for unlawful sales. Comm. v. Tuttle, (12 C.) 66 505; Tuttle v. Comm., (2 G.) 68 505; Comm. v. Porter, (4 G.) 70 426. 281. As to increased punishment for a second offence, under St. 1855, Ch. 215, §15, see Garvey ». Comm., (8 G.) 74 382. 282. As to a sentence under R. S., Ch. 47, see Harris v. Comm., (23 P.) 40 280; Wilde v. Comm., (2 Met.) 43 408. 283. As to the disposition of the penalties, under St. 1852, Ch. 322, §§ 7 and 12, see Taunton v. Sproat, (2 G.) 68 428. VI. Seakch; Seizure; Forfeiture. (1.) General principles. 284. These proceedings constitute a criminal prosecution, and accordingly St. 1864, Ch. 121; P. S., Ch. 214, § 12, casts the burden of prov- ing a license or other authority to sell upon the claimant. Comm. ». Intox. Liq., 122 8; Comm. ®. Intox. Liq , 122 36. 285. For rulings upon other questions of evi- dence, and questions of jurisdiction, challenges, costs, etc., based upon the doctrine that these proceedings are of a criminal character, see Comm. ii. Intox. Liq., (14 G.) 80 375; Comm. v. Intox. Liq., (13 A.) 95 561; Comm. v. Intox. Liq., 105 595; Comm. v. Intox. Liq., 107 216; Comm. v. Intox. Liq., 113 23; Comm. v. Intox. Liq., 115 142. 286. The search and seizure provision in St. 1855, Ch. 215, § 25, was constitutional. Allen v. Staples, (6 G.) 72 491. 287. The owner of liquor lawfully seized can- not maintain replevin against the officer for the liquor and the vessels containing it, as they are in the custody of the law. Allen v. Staples, (6 G.) 72 491. 288. The fact that some of liquors seized were not intoxicating, does not invalidate the seizure of the remainder. Comm. ii. Intox. Liq., 1 L3 Vo. INTOXICATING LIQUOES, VI, (1), (2). 871 289. Nor is it invalidated by the delivery by the officer, with the claimant's assent, of part of the liquors seized, to a third person claiming to own them. Comm. 0. Intox. Liq., 113 13. 290. The proceedings will lie, although tne liquor is held and to be sold, in fraud of the true owner, by a bailee. Comm. v. Intox. Liq., 107 396. 291. Under the statute of 1855, it was held that a warrant might issue for liquor in the possession of an officer, who had taken it on a charge of unlawful transportation. Allen 0. Staples, (6 G.) 72 491. (2.) Complaint; warrant. 292. For rulings, now obsolete, as to the court having jurisdiction to entertain the pro- ceedings under St. 1869, Ch. 415, § 44, see Comm. 0. Intox. Liq., 103 448; Comm. v. Intox. Liq., 105 176. 293. The same under G. S. Comm. 0. Intox. Liq., 97 63. 294. Upon the application, no other oath than the complainant's is required. Allen v. Staples, 1 6 G.) 72 491; Down- ing v. Porter, (8 G.) 74 539. 295. A record, showing that a complaint by two competent persons was " received and sworn to," and that the search warrant recited that the complaint was " on oath," sufficiently shows that both were sworn. Comm. v. Intox. Liq., 103 448. See, also, under the former statute, Comm. 0. Intox. Liq., (6 A.) 88 599. 296. Under the statutes of 1855 and 1859, it was indispensable that the name and residence of the complainant should appear in the war- rant, but the county of his residence sufficed. Guenther».Day,(6G.) 72 490; Comm. v. Intox. Liq., 113 13. 297. Under the existing statute, an allegation in the complaint that the liquors were kept by the person named at a place specified, and in- tended to be sold by him in this Commonwealth contrary to law, he not being authorized to sell the same in this Commonwealth, or to keep the same for sale for any purpose or by any legal authority, is sufficient. Comm. 0. Intox. Liq., HO 182; Comm. 0. Intox. Liq., 110 416; Comm. ■o. Intox. Liq., 122 8. 298. As to the former statute, see Comm. ». Intox. Liq., (4 A.) 86 593; Comm. v. Leddy. 105 381. 299. A blank in the date to the jurat to the complaint is not fatal, if it may be supplied by reference to other matters in the record. Comm. 0. Intox. Liq., 128 72. i 300. The preliminary adjudication that there is "probable cause to believe" that the com- plaint is true, is final. Comm. 0. Intox. Liq., 103 448. 301. The recital in the warrant that such probable cause exists, is indispensable to its validity. Comm. s. Intox. Liq., 105 178. 302. But it is immaterial in what part of the warrant the recital appears. Comm. 1). Intox. Liq., HO 182; Comm. «. Intox. Liq., 113 13. 303. It is unnecessary that the averment, as to probable cause, should be contained in the certificate or jurat to the complaint. Comm. 0. Intox. Liq., 110 182; Comm. 0. Intox. Liq., 113 13. 304. Under the st of 1855, it was unneces- sary that this averment should be contained in the warrant. Holland v. Seagrave, (11 G.) 77 207. 305. If the description of the place to be searched in the complaint and warrant is suffi- cient to identify it, they are not open to objec- tion for immaterial errors therein, or even a misdescription of the street or number. Comm. ». Intox. Liq., 122 36. See, also, Downing 0. Porter, (8 G.) 74 539; Comm. 0. Intox. Liq., (6 A.) 88 596; Comm. v. Intox. Liq., 117 427. 306. As to the sufficiency of the description. Comm. b. Intox. Liq., HO 182; Comm. 0. Intox. Liq., 113 13; Comm. 0. Intox. Liq., 113 208; Comm. 0. Intox. Liq., 113 455; Comm. v. Intox. Liq., 116 27; Comm. 0. Intox. Liq., 122 14; Comm. 0. Intox. Liq., 122 8. See, also, Comm. 0. Intox. Liq., 97 63; Comm 0. Intox. Liq. , 107 216; Comm. 0. Intox. Liq., 116 27. 307. Where the premises were described as a basement, and the liquors were seized in a room under the sidewalk, opening into the basement by a door, it was left to the jury to say whether the room was part of the basement. Comm. 0. Intox. Liq., 117 427. 308. For cases where the description of the premises has been ruled to be insufficient, see Comm. 0. Intox. Liq., 07 334; Comm. 0. Intox. Liq., 109 371; Comm. 0. Intox. Liq., HO 490; Comm. 0. Intox. Liq., 115 145; Comm. v. Intox. Liq., 116 26; Comm. 0. Intox. Liq., 116 342. 309. For a ruling as to the sufficiency of the description, in a warrant to search a vehicle, see Comm. 0. Intox. Liq., 107 386. 310. The oath required, to authorize the issu- ing of a warrant to search a dwelling house, is not part of the complaint, and need not be framed with technical accuracy. Comm. v. Intox. Liq., 105 181. See, also, Comm. 0. Intox. Liq., (13 A.) 95 52. 311. A warrant may bo issued, under the ex- isting statute, to search a storehouse kept in a dwelling house, without the special oath of one of the complainants, or the allegations in re- spect th reto in the complaint and warrant, prescribed in St. 1876, Ch. 162, § 2; P. S., Ch. 100, § 31. Comm. 0. Intox. Liq., 122 14; Accord, under the former statute, Comm. 0. Intox. Liq., 108 19; Comm. 0. Intox. Liq., 1 10 182; Comm. v. Intox. Liq., 116 27. 8T2 INTOXICATING LIQUOES, VI, (2), (3). 312. And where the complaint and warrant aver that the liquor is kept in ihe cellar of a particular house, occupied by the claimant as a storehouse, and the proof shows that it was the cellar of his dwelling house, there is no vari- ance. Comm. v. Intox. Liq., 122 14. 313 And the officer may search a shop de- scribed in the warrant, although the rooms above are occupied by the claimant and his family. Comm. v. Intox. Liq., 122 36. See, also, Comm. v. Intox. Liq., 108 19. 314. The special allegations, required to obtain a warrant to search a dwelling house, may be made upon belief, setting forth the facts and circumstances; and a statement that many people have been seen going to and com- ing from there, and waiting outside of the house for J. S. to come, with, bottles in their hands, is sufficient. Comm. v. Intox. Liq., 105 595. See, also, Comm. v. Intox. Liq., 105 181. 315. Common report is a sufficient statement of the grounds of belief, if it satisfies the magistrate. Comm. v. Leddy, 105 381. 316. Under St. 1869, Ch. 415, § 44, if the complaint sets forth the complainant's belief, that liquor has been sold in a dwelling house within one month, by the occupant, it is un- necessary that either the complaint or the war- rant should contain an averment, that a place of common resort is kept there, or that the occu- pant keeps a place of common resort. Comm. v. Intox. Liq., 110 182; Comm. v. Intox. Liq., 116 27. 317. An averment, that the place was occu- pied as a place of common resort, is sustained by proof that persons went there without re- striction to buy liquor, although the business was conducted in an orderly manner. Comm. •». Intox. Liq., 107 216. 318. Where the complaint is for a warrant to search the cellar of a dwelling house, it is no objection that the complaint affirms a belief that "the house," not specifically the cellar, is used unlawfully. Comm. ». Intox. Liq., 105 181. 319. For rulings under the G. S., as to a place of common resort, see Comm. v. Intox. Liq., 97 332; Comm. ii. Leddy, 105 381. 320. A complaint and warrant to search for "intoxicating liquors, to wit," (enumerating whiskey, etc., and then) "a certain quantity of mixed liquors, being about and not exceeding four gallons," is a sufficient averment that the mixed liquors were intoxicating. Comm. v. Intox. Liq., 110 416. 321. Under the statute of 1855, "a certain quantity of gin, being about and not exceeding 100 gallons." is a sufficient description of the liquor to be seized. Downing «. Porter, (8 G.) 74 539. See. also, Comm. ■». Intox. Liq., (13 A.) 95 561; Comm. i>. Intox. Liq., 97 322. Such a description suffices, although only two gallons of that kind were found, and none of other liquors specified. Comm. v. Intox. Liq., (13 A.) 95 52. 323. The same rule holds under the existing statute. Comm. n. Intox. Liq., 113 13. 324. Under the statute of 1855, it was not necessary that the. owner of the liquor should be named in the warrant, if the person in whose possession it was found was named. Allen v. Staples, (6 G.) 72 491. 325. And an averment in the complaint, that the liquor was kept by a person unknown, sufficed under the statute of lfc69. Comm. v. Intox. Liq., 116 21. 326. Under the statute of 1869, where liquor had been seized in a vehicle, under § 57, with- out a warrant, the complaint might describe it as still in the possession of the person by whom it was then kept in the vehicle. Comm. ■». Intox. Liq., 107 386. (3.) Execution and return of the war- rant; notice to claimant. [For the general rules respecting the execution, etc., of search warrants, see search Warrant.] 327. An officer who seizes any liquor, not de- scribed in the warrant, is liable to the owner. Arthur ». Flanders, (10 G.) 76 107. 328. An officer may execute a warrant, issued upon the joint complaint of himself and another. Comm. ». Intjx. Liq., (6 A.) 88 596. 329. As to the power of a deputy of the con- stable of the Commonwealth, under St. 1865, Ch. 249, § 2, see Comm. v. Intox.Liq., 97 63; Comm. t>. Intox. Liq., 97 601. 330. Under the G. S., a direction in the war- rant "to make due return of the warrant," sufficed. Comm. b. Intox. Liq., 97 62. 331. And it might be returned before a jus- tice of the town, other than that where the liquor was kept. Comm. «. Intox. Liq., 97 63. 332. When the warrant directed the officer to enter the ho.:se of A, and seize and remove liquor kept there by A, it was held that he might lawfully enter the adjoining room of B, in the same house, and seize a barrel of ale there, having a faucet which passed into A's room. Comm. v. Leddy, 105 381. \ 333. A return, "Bj virtue of this warrant, I have searched the within premises, and have seized therein the liquors described in this warrant, with the vessels," etc., "to wit, about 295 gallons of whiskey," etc., is sufficient. Comm. ». Intox. Liq., 113 13. See, also, Comm. *. Intox. Liq., (6 A.) 88 596. 334. Under the statute of 1869, the jurisdic- tion of the court, and the validity of the pro- INTOXICATING LIQUOES, VI, (3), (4); VII. 873 ceedings, are not affected by an omission to summon the complainants as witnesses. Comm. 0. Intox. Liq., 108 290. 335 So under the former statutes. Downing 0. Porter, (8 G.) 74 539; Comm. v. Intox. Liq., 97 62. 336. A recital in a notice to all persons claim- ing an interest in liquor seized, that the seizure was made under a warrant of the district court, where it was, in fact, made under a warrant of a special justice thereof, does not iuvalidate the proceedings. Comm.'D. Intox. Liq., 128 72. 337. For rulings under the G. S., and the statute of 1869, as to the term of the superior court to which the notice was returnable, see Comm. v. Intox. Liq., (13 A.) 95 561; Comm. e. Intox. Liq., 107 386; Comm. v. Intox. Liq., 113 13. 338. As to the transmission of the docu- ments. Comm. v. Intox. Liq., 97 600; Comm. ■o. Intox. Liq., HO 172. 339. The opinion of the court that the value of the liquor seized exceeds the statutory sum, sufficiently appears of record, if it is stated in the notice to the keeper and all other persons claiming, etc. Cumm. v. Intox. Liq., (13 A.) 95 561. See, also, Comm. v. Intox. Liq., (4 A.) 86 593. 340. The notice is merely ministerial, and need not be recorded; and a clerical error in the record, showing that it was not issued within 24 hours, is immaterial if other documents show that it was so issued. Comm. 0. Intox. Liq., (4 A.) 86 593. 341. The twenty-four hours within which the notice must be issued, are exclusive of Sunday. Comm. ii. Intox. Liq., 97 601. 342. As to the sufficiency of the description of the liquors and vessels in the notice. Comm. v. Intox. Liq., (6 A.) 88 599. 343. As to the sufficiency of the description of the place of seizure in the notice. Comm. v. Intox. Liq., (6 A.) 88 599; Comm. v. Intox. Liq., 97 334. 344. A claimant, who has" in fact received notice, and has appeared generally, cannot dis- pute the regularity of the notice. Comm. v. Intox. Liq., 110 182. See, also, Comm. v. Intox. Liq., (13 A.) 95 561. 345. And one who appears as a claimant can- not object that notice was not given to others. Comm. «. Intox. Liq., (6 A.) 88 596. (4.) Trial; verdict; judgment; review of the proceedings. 346. The jury may find that the liquors seized were the liquors described in the com- plaint, although the officer testifies that he has no knowledge of the quantity, kinds, or pack- Comm. ii. Intox. Liq., 110 182. See, also, Comm. «. Intox. Liq., (6 A.) 88 596. Vol. I— no 347. Misconduct of the officer does not pre- vent the fact that liquor was found from being proved. Comm. v. Welsh, 110 359. 348. So if the evidence was obtained by means of former proceedings, instituted to gain possession of the buildings. Comm. v. Intox. Liq., (4 A ) 86 593. 349. The allegation of the place where the liquors were kept, is a material traversable allegation, which the claimant is entitled to have proved and passed upon by the jury. Comm. «. Intox. Liq., 117 427. 350. A complaint, under the G. S., that liquor was kept in a specified place, is not sus- tained by a verdict that it was owned or kept ' Comm. ii. Intox. Liq., (4 A.) 86 601. 351. A verdict, under the statute of 1869, that the liquors described in the complaint, and seized on the warrant, were, at the time, etc., owned and kept by the claimant, for the pur- pose of being sold in violation of St. 1869, Ch. 115, identifies the liquor as intoxicating liquor owned and kept for sale, contrary to law, and warrants a judgment oi forfeiture. Comm. 0. Intox. Liq., 113 13. See, also, Comm. v. Blanchard, 105 173. 352. The claimant is entitled to judgment for a return, if the proceedings are quashed for in- formality. Comm. 0. Intox. Liq., 103 454. 353. Judgment of forfeiture cannot be ren- dered upon the claimant's default, without proof; but after his default, he is not entitled to be heard or offer evidence, except by leave of the court. Comm. 0. Intox. Liq., 113 23. 354. It was held, under the G. S., that unless a final judgment of forfeiture had been ren- dered in the superior court, it was immaterial whether the bill of exceptions showed that the liquor seized was the same as the liquor de- scribed in the complaint . Comm. 0. Intox. Liq., (4 A.) 86 593. 355. Under the statute of 1855, the claimant was not entitled to costs upon a judgment for return. Comm. 0. Intox. Liq., (14 G.) 80 375. 356. Under the statute of 1869, if the person complained against does not appear as a claim- ant, but consents,, of record, that the liquor may be destroyed, without publication of notice, he cannot maintain a writ of error. Leslie d. Comm., 107 215. 357. And a person who does not appear as a claimant, until after judgment of forfeiture and destruction, cannot appeal therefrom. Comm. 0. Intox. Liq., HO 188. VII. Miscellaneous Rulings under obso- lete Statutes. [Rulings under obsolete statutes, which are sup- posed to be applicable to provisions of existing stat- utes, either directly or by analogy, have been given under former captions of this title, in connection with such provisions.] 874 INTOXICATING LIQUORS, VII. Arrest. [St. 1855, Ch. 815, § 13.] 358. In what cases officer could justify arrest "without warrant. Mason v. Lothrop, (7 G.) 73 354; Kennedy v. Favor, (14 G.) 80 200. 359. Evidence of party's declarations before the arrest, admissible upon justification. Mason v. Lothrop, (7 G.) 73 354. 360. Officer's powers and duties as to horse and wagon of person arrested. Jones «. Eoqt, (6 G.) 72 435. Attorneys fee. [St. 1855, Ch. 215, § 15.] 361. The provision allowing the taxation of an attorney's fee was constitutional. Comm. ii. Munn, (14 G.) 80 361. 362. To whom the fee was payable. Comm. v. Rogers, (9 G.) 75 278. 363. Not taxable if defendant, convicted be- low, was acquitted upon appeal. Comm. i>. Bundy, (5 G.) 71 305. 364. Repeal by St. 1859, Ch. 200, not a ground for arresting judgment. Comm. v. McKenney, (14 G.) 80 1 Common seller. [B. S., Ch. 47, § 1; St. 1852, Ch. 322, § 12; St. 1855, Ch. 215, § 17.] 365. Common seller not entitled to be dis- charged as a poor convict, until three months after expiration of the time for which he was sentenced to imprisonment. Gannon v. Adams, (8 G.) 74 395. 366. St. 1852, extended to a common seller of liquor, not manufactured by himself. Comm. v. Bralley, (6 G.) 69 456. 367. Three distinct sales, within the time al- leged, must have been proved; whether to the same or different persons, or on the same or dif- ferent occasions, etc., was immaterial; various rulings as to the character of the three sales, and the evidence thereof. Comm. ». Odlin, (23 P.) 40 275; Comm. v. Tubbs, (1 C.) 55 2; Comm. v. Perley, (2 C.) 56 559; Comm. •». Rumrill, (1 G.) 67 .388; Comm. v. Kirk, (7 G.) 73 496; Comm. v. Lamere, (11 G.) 77 319; Comm. ■». Mahony, (14 G.) 80 46; Comm. v. Munn, (14 G.) SO 361; Comm. v. Clark, (14 G.) 80 367; Comm. v. Barker, (14 G.) 80 412; Comm. v. Whalen, (16 G.) 82 23; Comm. v. Dady, (7 A.) 89 531; Comm. v. Graves, 97 114; Comm. ■». Hogan, 97 120. 368. The government was not confined to the sales proved before the grand jury. Comm. ■». Phelps, (11 G.) 77 73. 369. Circumstantial evidence of the place being habitually used for drinking purposes, was competent, in connection with proof of the three sales. Comm. v. Burnham, (14 G.) 80 101. 370. The defendant could not prove that certain persons had heard others call for drinks, and that they were invariably refused. Comm. v. Barlow, 97 597. 371. The defendant might be convicted, al- though he did not know that the liquor was intoxicating. Comm. ■». Boynton, (2 A.) 84 160. 372. One who made three or more sales might be prosecuted for the several sales, instead of being charged as a common seller. Comm. ■». Porter, (4 G.) 70 426. 373. Proof that the defendant was authorized to sell, during part of the time embraced in the, indictment, was not an answer to the whole indictment. Comm. ■». Putnam, (4 G.) 70 16. [For other cases, as to the evidence upon this charge, see ante, V, (4).] Sales less than twenty-eight gal- lons. [E. S., Ch. 47, § 3.] 374. One such sale constituted this offence. Comm. v. Thurlow, (24 P.) 41 374. 375. If the aggregate exceeded 28 gallons, no offence was committed under the statute, although it was made up of several kinds of liquors, each less than 28 gallons in quantity, all being delivered and carried away at one time. Browne v. Hilton, (23 P.) 40 319. Seizure without warrant. [St. 1855, Ch. 215, § 13.] 376. The officer became a trespasser, ' if he failed to procure a warrant within a reasonable time afterwards. Kent v. Willey, (11 G.) 77 368. Town agent ; State agent. [G. S., Ch. Ch. 470.] 86, §§ 17-20; St. 1855, Ch. 215, § 5; St 1865, 377. Appointment, qualification, and evidence of authority of a town agent. Comm. ». Putnam, (4 G.) 70 16; Comm. ». Pillsbury, (12 G.) 78 127. 378. In what cases selectmen were or were not liable to the penalty for failure to appoint a town agent. Rowe v. Edmands, (3 A.) 85 334; Sears v. Tyler, (10 A.) 92 469. INTOXICATING LIQUOKS, VII— ISLAND. 875 379. A contract that his compensation should depend upon the amount of sales, was unlawful. Washington v Barnes, (8 A.) ,90 432. 380. Liquor purchased by him was the prop- erty of the town, and it was his duty to account- therefor, and for the proceeds thereof. Washington e. Eames, (6 A.) 88 417. 381. Sufficiency of his accounts of purchases. Wenham v. Dodge, 98 474. 382. His record of sales; rulings with respect to its sufficiency and effect; and his omission to keep it. Wenham v. Dodge, 98 474. 383. He was not liable for damages to an in- dividual for refusing to. sell him liquor. Dwinnels v. Parsons, 98 470. 384. Liquor purchased by him from the State agent must have been paid for in cash, and the latter could not maintain an action therefor. Mansfield v. Stoneham, (15 G.) 81 149. Town by-laws. [St. 1847, Ch. 166; St. 1870, Chs. 389, 390.] 385. The statute of 1847 did not authorize a town to make a by-law, prohibiting sales in less quantity than twenty-eight gallons. Comm. ». Turner, (1 C.) 55 493. 386. The statutes of 1870 did not require a vote by ballot. Comm. t>. Doe, 108 418. Transportation, unlawful. [St. 1855, Ch. 315, §§ 20, etc.; St. 1869, Ch. 415, §8 39, etc.] 387. Construction and effect of the statutes of 1855 and 1869, with respect to the character of the offence. Comm. v. Waters, (11 G.) 77 81; Comm. v. Intox. Liq., 107 386; Comm. v. McCluskey, 116 64. 388. A finding that the carrier had reasonable cause to believe, that the person to whom he was carrying the liquor, intended to sell it un- lawfully, was necessary to a forfeiture under the statute of 1869. Comm. v. Intox. Liq., 107 386. 389 For rulings upon questions of evidence, relating to such reasonable cause, in proceedings against the carrier, see Comm. s. Waters, (11 G.) 77 81; Comm. «. Commeskey, (13 A.) 95 585; Comm. a. Intox. Liquors, 107 386; Comm. v. McLaughlin, 108 477; Comm. «. Locke, 114 288; Comm. v. Kenney, 115 149. 390. The exclusion of evidence that the de- fendant did not know, whether the sale of liquor was permitted in the town, would not sustain an exception. Comm. «. Babcock, 110 107. 391. It was not a defence to a complaint for transportation, in a city where it was not lawful to sell liquor, that it had been sold in another city where such a sale was lawful, for delivery in the former city. Comm. «. McLaughlin, 108 477. 392. For a ruling, in a proceeding for forfeit- ure of the liqu r, upon the sufficiency of cer- tain circumstantial evidence, to show an intent to sell unlawfully, see Comm. v. Intox. Liq., 107 386. And for other rulings upon that subject, sse ante, V, (4). 393. In an action against an officer for seizing the plaintiff's horse and wagon, evidence that the defendant had reasonable cause to believe, that they were being used for the transporta- tion of liquor for an unlawful sale, was incom- petent. Kent ». Willey, (11 G.) 77 368. See, also, Jones *>. Root, (6 G.) 72 435. Intoxication. [See Drunkenness; Intoxicating Liquors, IV.] Inventory (of decedent's estate). [See Executor and Administrator, III, (1)0 Ipswich. 1. Boundary of, see Ex parte Ipswich, (13 P.) 30 431. 2. Taking clams, etc., in, see Fish, III. 3. As to the effect and interpretation of the grant made by the town of Ipswich, in 1650, in trust for the use of a school in that trwn, the rights of the feoffees thereunder, and under statutes passed in 1765 and 1786. and the rights of the tenants of the feoffees, with respect to the deduction of the town taxes from their rent, see Ipswich Grammar School i>. Andrews, (8 Met.) 49 584. Island. [See, also, Alluvion; Boundary Line; 'Water Course.] 1. An island in a river not navigable, not otherwise appropriated by the rules of law, if altogether on one side of the dividing line, or filum aqvee, belongs to the owner of the bank on that side. Ingraham v. Wilkinson, (4P.) 21 268. 2. But if it is in the middle, it belongs in severalty to the owners on each side, and the dividing line will run as if there was no island. Ingraham «. Wilkinson, (4 P.) 21 268. 3 If the course of a river not navigable changes, and cuts off a point of land on one side, making it an island, such island still be- longs to the original owner. Hopkins Academy v. Dickinson, (9 C.) 63 544. 876 ISLAND— JAIL. 4. In such a case, if the old bed of the river fills up, and new land is formed, the new land belongs to the opposite riparian proprietors, to the old thread of the river. Hopkins Academy «. Dickinson, (9 C.) 63 544. 5. And if new land is formed in the river, above the island, independent of the island, and not by slow, gradual, and insensible accretion to it, the new land belongs to the opposite ripa- rian proprietors, respectively, to the thread of the river. Hopkins Academy v. Dickinson, (9 C.) 63 544. 6. The thread of the river in such a case, is the medium line between the shores, at the time when the new land is formed, without regard to the channel or deepest part of the water. Hopkins Academy v. Dickinson, (9 C.) 63 544. Jail; jailor. [See, also, Arrest; Baii.; Escape; Execution, VI; House or Correction; Poor, 11,(7); Poor Debtor.] 1. S'nce by statute, the jails are to be used for the confinement of all persons, duly committed for any cause authorized by law, the sergeant- at-arms of the legislature may detain in the county jail, with the sheriff's permission, a person committed by authority of the house of representatives. * Bumhamfl. Morrissey,(14G.) 80 226. 2. The duty imposed by_ St. 1787, Ch. 54, upon the court of sessions in each county, to provide a house of correction, distinct from the jail, may be enforced by mandamus. Until such provision is made, the jail may be used as the house of correction, if so established by the court of sessions, but not otherwise. Taunton v. Westport, 12 355; Comm. v. Hampden Sessions, (2 P.) 19 414. 3. An oral authority by a creditor to the jailor, to discharge a debtor, is a sufficient justification. B.idge ». McLane, 2 520. 4. For various rulings, under the former statutes, as to the liability of the town to the jailor for support, etc., of a prisoner, see Cargill v. Wiscassett, 2 547; Doggett «. Dedham, 2 564; Sayward v. Alfred, 5 214; Bowman ». Wiscasset, 13 247. 5. As to the liability of a townfto a physician for his services to prisoners. Adams v. Wiscassett, 5 328. 6. The remedy of a jailor for the support of infant children of prisoners, is against the town in which the jail is situated, not by application to the county commissioners for an allowance. Adams v. Hampden, (13 G.) 79 439. 7. The additional compensation to a jailor, beyond the board of prisoners, under St. 1848, Ch. 276, § 1, upon an appeal from the county commissioners to the common pleas, under St. 1846, Ch. 11, § 1, is within the discretion of the court, which cannot be reviewed upon exceptions. Adams v. Hampden, (13 G.) 79 439. 8. The keeping of a prison book by the jailor, as required by § 2 of the statute of 1848, is a condition precedent to an allowance by the county commissioners, of such additional com- pensation Adams v. Hampden, (13 G.) 79 439. 9. The fee of twenty cents for each prisoner committed or discharged, to which the jailor is entitled under St. 1836, Ch. 277, is not to be included in the sum to be allowed him. Adams v. Hampden, (13 G.) , 79 439. 10. The inhabitants of a county cannot main- tain an action against a creditor, who has had his debtor arrested upon meine process, and kept in close confinement in the jail, for the support of the debtor as a pauper, if the cred- itor, after demand upon him by the jailor to pay for the debtor's board, has not requested his detention, or promised to pay for his support. Worcester Co. ■». Schlesinger, (16 G.) 82 166. 11. Under St. 1821, Ch. 22, a demand by the jailor of security for a debtor's support from the creditor, need not be in any particular form; it suffices if it is understood by the creditor. Blood v. Austin, (3 P.) 20 259. 12. If the debtor represents himself to the jailor as a pauper, and claims support, that is a sufficient claim for relief as a pauper under the statute of 1821. Blood v. Austin, (3 P.) 20 259. 13. Under the statute of 1821, the creditor was not liable for the support of a debtor, sur- rendered and committed by his bail, after a return of non est to the execution. Chamberlain v. Mallard, (2 P.) 19 439. 14. For other rulings under the statute of 1821, supposed to be obsolete under the exist- ing statute, see Doggett t. Dedham, 2 564; Cargill v. Wiscassett, 2 547; Richards ■». Crane, (7 P.) 24= 216. 15. A debtor arrested under an execution and refused the poor debtor's oath, was entitled to give bond for the jail limits. Brown v. Bartlett, (5 G.) 71 461. 16.. In an action upon a bond for the liberty of the jail limits, the burden was upon the plaintiff to prove a breach. Thornton «. Adams, (11 G.) 77 391. 17. For other rulings under the former statutes, as to the right of a debtor to give a bond for the jail limits, the effect of such a bond, and the liability of the sureties there- upon, see Bartlett «. Willis, 3 86; Clap v. Cofran, 7 98; Freeman v. Davis, 7 JAIL— JOINT LIABILITY, I. 877 200; Burroughs v. Powder, 8 373; Pat- terson «. Pnilbrook, 9 151; Trull 9. Wilson, 9 154; Smith 9. Stockbridge, 9 221; Locke v. Dane, 9 360; B.own v Getchell, 11 11; Whiting 9. Putnam, 17 175; Bean 9. Parker, 17 591; Eeed 9. Fullum, (2 P.) 19 158; Trull i>. Wheeler, (19 P.) 36 240; Farley 9. Randall, (22 P.) 39 146; Wiggin 9. Peters, (1 Met.) 42 127; Abbott 9. Bul- lard, (8 C.) 62 141; Pratt 9. Gibbs, (9 C.) 63 82; Puller 9. Davis, (1 G.) 67 612; Dooley 9. Cotton. (3 G.) 69 496; Burnett 9. Small, (7 G.) 73 548; Plummer v. Odiorne, (8 G.) 74 246. 18. For rulings under the former statutes, as to the extent of the -jail limits, and the mode of fixing them, see Baxter i>. Taber, 4 361; Clap v. Cofran, 7 98; Burroughs 9. Lowder, 8 373; Walter 9. Bacon, 8 468; Locke 9. Dane, 9 360: Trull 9. Wheeler, (1!; P.) 36 240; Appleton 9. Bascom, (:J Met.) 44 169; Ilsley «. Jewett, (3 Met.) 44 439. Joinder of counts. ND1CTMENT, IV, (1); PLEADING, HI, (2).] Joinder of parti ISee Abatement, II. (2);Nequity Pleading and Practice, 11,(1); Indictment^V, (2); Joint Lia- bility, I; II; Parties, II.] Joint liability; several liability. I. On Contract. II. For a Tort. (1.) When tort feasors are jointly liable. (2.) Contribution or indemnity between tort III. Release or Discharge op one joint Debtor or Tort Feasor. LSee, also, Contract, IV, (1); Former Adjudi- cation, II, (ii); Fraud, V; Partnership. As to questions of pleading, and the effect of the practice act, see Parties; Pleading. As to the liability of the executor or administrator < f a deceased joint or seveial debtor, Fee Executor and Administra- tor, V, (3); also Abatement. As to the damages against joint tort feasors, see Damages, IV, (2)-l I. On Contract. [As to what contracts create a joint liability, and what contracts create a several liability, see, also, Contract, IV, (1).] 1. Where, in a deed of land to three persons, as tenants in common in different proportions, there is a stipulation that the grantees are to assume a mortgage upon the property, they are jointly liable upon the implied promise, notwith- standing the different proportions in which they take. Fenton 9. Lord, 128 466. See, also, Swasey «. Little, (7 P.) 24 296. 2. And where husband and wife are the grantors, the implied promise is to both. Fenton 9. Lord, 128 466. 3. The executor or administrator of a deceased joint d-jbtor, cannot be sued at law jointly with the survivor; and where, pending an action upon a joint and several contract, one defend- ant dies, his executor or administrator cannot be summoned in. Niles 9. Drake, (17 P.) 34 516; New Haven & N. Co. v. Hayden, 119 361; Cochrane 9. Cushing, 124 219; Ricker 9. Gerrish, 1 367. 4. But where one defendant dies, pending an action upon a several contract, his administra- tor may be summoned in. Colt 9. Learned, 133 409. [See, olso. Abatement, I, (1) ; Executor and Ad- ministrator, V, (3).] 5. An agreement in behalf of joint owners of property, partners, or others similarly situated, made with one of their own number, cannot be enforced at law, because the latter is a necessary defendant to any action at law upon the agree- ment, and the same person cannot be plaintiff and defendant at law. Eastman v. Wright, (6 P.) 23 316; Warren 9. Stearns, (.19 P.) 36 73; Thayer ii. Buffum, (11 Met.) 52 398; Belknap v. Gibbens, (13 Met.) 54 471; Morley 9. French, (2 C.) 56 130; Winthrop 9. Minot, (9 C.) 63 405; Pierce 9. Boston F. C. Sav. Bk., 125 593; Terry v. Brightman, 132 318. 6. Where six part owners of a vessel under- took, two jointy and the other four severally in their several proportions, a declaration against the two, averring performance by the four, was holden good on error. Barstow v. Fossett, 1 1 250. 7. Purchasers in severalty of d fferent par- cels of land, are jointly liable for a legacy, charged upon the entire land; and heirs or assigns by deed are jointly chargeable upon a covenant running with the land. Swaseya. Little, (7 P.) 24 296; Morse 9. Aldrich, (1 Met.) 42 544. 8. Two guardians, one of three infant heirs, and the other of one infant heir, who join in a sale of their wards' land, under a license from the probate court, and in a covenant of quiet enjoyment in the deed, are personally and jointly liable for breach of the covenant. Donahoe ». Emery, (9 Met.) 50 63. 9. Where three owners of a patent licensed a manufacturer to use it, upon payment of a fee for each machine to a receiver appointed by them, who divided it among them; it was held, that an action by the licensees to recover back fees paid to the receiver, under a mistake of fact, lay against all the licensors joinily , although no demai.d for repayment was made before dis- tribution. Florence S. M. Co. v. Grover & B. b. M. Co., 110 70. 10. As to the several liability of two towns, for services of a committee, under a statute to regulate a fishery, see ,„„, oc S1K Robinson 9. Wareham, (2 G.) o» olo. [As to the remedy for_conte|bution E bPtween^oint : (4);1V.(1).1 co L htrac'toVs,see Assumpsit. Ill, &): Equity Juris- diction, 11.(5); Partnership, I t (40 878 JOINT LIABILITY, II, (1), (2). II. For a Toet. (1.) When lort feasors are jointly liable. [See, also, the titles of the different actions and causes of action rf or torts.] 11. Where persons are charged in trespass, by reason of holding real property as joint tenants, or tenants in common, all must be made de- fendants. Sumner v. Tileston, (4 P.) 21 308. 12. An action of trespass against assessors, for illegally assessing and collecting a school tax on a person not belonging to the district, lies against one or all. "Withington®. Eveleth, (6 P.) 23 106. 13. Partners, a r d other joint owners, are liable jointly, for fraudulent representations made by one in behalf of the others, in the course of the joint business. Patten ». Gurney, 17 182: Cook®. Oastner, (9 C.) 63 266; White ». Saw- yer, (16 G.) 82 586. [See, also, Fraud, V, (1) ; Partnership, II, (3).] 14. Where the case is one in which the law prohibits the arrest of a defendant, a justice of the peace, who issues an execution commanding an arrest, and the attorney who procures it to be issued, knowing the facts, are jointly liable in an action by the defendant arrested. Sullivan ». Jones, (2 G.) 68 570. 15. A sheriff and his deputy cannot be sued jointly, in an action for the tortious act of the deputy only, although each is severally liable therefor. Campbell ®. Phelps, (1 P.) 18 62. 16. A master and his servant are not liable jointly, in an action on the case for an injury caused by the negligence of the servant, while doing the master's business in his absence. Parsons ®. Winchell, (5 C.) 59 592; Mulchey ®. Method. Relig. Soc, 125 487. 17. But where a wilful injury is committed, by a servant or agent, by the command or authority of his master or principal, both are in law principal trespassers, and jointly liable. Hewett ®. Swift, (3 A.) 85 420; > Holmes ®. Wakefield, (12 A.) 94 580; Mulchey v. Method. Relig. Soc, 125 487. 18. And a joint action of tort in the nature of trespass lies against a corporation and its servant, for a personal injury inflicted by the latter, in discharging the duties imposed upon him by the corporation, although they might have been well discharged without the use of undue or unlawful force. Moore «. Pitchburg Railroad, (4 G.) 70 465; Hewett e. Swift, (3 A.) 85 420; Holmes ®. Wakefield, (12 A.) 94 580. 19. Where one superintends, although gratui- tously, work done on another's land, and an in- jury occurs to a third person, through the negligence of both, they are jointly liable therefor. Hawkesworth ®. Thompson, 98 77. 20. Where a customer sent to each of two different manufacturers a separate order for a substance, not dangerous in itself, but which, combined with the other, formed a highly dan- gerous explosive; and each manufacturer, with- out concert with the other, delivered his package to the same carrier, without giving him notice of its nature; and they were stowed together, and caused an explosion on the journey; it was held, that the customer was not liable, but the two manufacturers were jointly liable, to the carrier and a third person, whose property was in- jured. Boston & A Railroad ®. Shanly, 107 568. 21. In an action against two for an injury done by a dog, alleged in the declaration to be- long to both, where one of the defendants died, it was held that the action might be maintained against the other, without proving that the de- ceased was also part owner. Buddington®. Shearer, (22 P.) 39 , 427. 22. Two or more creditors who, acting sepa- rately and without concert, wrongfully cause their common debtor to be arrested on their several writs, which is done upon both writs simultaneously, and by the same officer, are joint trespassers, within the rule that satisfac- tion from one bars an action against the others. Stone «. Dickinson, (5 A.) 87 29; Stone ®. Dickinson, (7 A.) 89 26. 23. Where there is a joint conversion by sev- eral, the owner may sue some of them jointly, and one separately. Elliott v. Hayden, 104 180; McAvoy ®. Wright, 137 207. (2.) Contribution or indemnity between tort feasors. [As to the remedy over of a town, compelled to pay damages for an obstruction in the highway, against the person who caused the obstruction, see Highway, V, (4).] 24. Where one of two wrong doers, equally culpable, is held responsible in damages, he cannot have indemnity or contribution from the other. Gray ®. Boston Gas L. Co., 1 14 149; Churchill ». Holt, 127 165; Churchill «. Holt, 131 67. 25. But where one, who does not join in the act, is liable therefor, he may recover from the other; for in such a case the parties arc not in pari delicto as to each other, although either is liable to a third person. Gray®. Boston Gas L. Co., 114 149; Churchill ®. Holt, 127 165. 26. Thus, the owner of a building, to the chimney of which a gas company has affixed a wire, without his consent, may recover against the company a sum reasonably paid by him in settlement of damases to a passer-by, upon whom it fell, with his expenses and the dam- ages to his building. Gray®. Boston Gas L. Co., 114 149. 27. But where the owner leaves open a hatch- way in a sidewalk, and another so interferes with it as to make it even more dangerous, both are in pari delicto, and the former cannot re- cover against the latter for damages, which he has been compelled to pay to a passer-by, who fell in. Churchill v. Holt, 127 165. JOINT LIABILITY, III— JOINT STOCK COMPANY 879 28. It is only, however, where a person knows, or must he presumed to know, that his act is unlawful, that he cannot call upon an- other for indemnity or contribution. Jacobs «. Pollard, (10 C.) 64 287. 29. And where A took, in good faith, cattle damage feasant, and B, a field driver, sold them at A's request, and received the money, and the proceedings were irregular, so that A was cast in damages to the owner, it was held that A might recover from B the money received by Mm. T -cobs v. Pollard. ttO C.I 64 287. HI. Release or Discharge of one joint Debtor or Tort Feasor. [See, also, Accord and Satisfaction ; Contract, VI, (2) ; Eelease.] 30. A technical release, under seal, of one joint debtor, discharges all. "Ward v. Johnson, 13 148; Tucker- man v. Newhall, 17 581; Wiggin v. Tudor, (23 P.) 40 434. 31. But an oral discharge of one joint or joint and several promisor, or a written dis- charge not under seal, does not discharge the others. Buggies v. Patten, 8 480; Shaw v. Pratt, (22 P.) 39 305; Goodnow v. Smith, (18 P.) 35 414; Smith «. Bar- tholomew, (1 Met.) 42 276; Pond v. "Williams, (1 G.) 67 630; Bemis v. Hoseley, (16 G.) 82 63; Gold Medal S. M. Co. ii. Harris, 124 206. 32. For a case where, by agreement, two joint debtors became each severally liable for half of the debt, and a subsequent discharge of one did not release the other, see Gold Medal S. M. Co. v. Harris, 124 206. 33. A promise by the holder of a joint and several note, on payment of part thereof by one maker, to look to the other only for the re- mainder, is not even binding in favor of the promisee, for want of consideration. Smith «. Bartholomew, (1 Met.) 42 276. 34. Semble, that a covenant never to sue one of two or more joint or joint and several debtors, is not a bar to an action against all; the remedy of the covenantee is by action for breach of the covenant. Tuckerman «. Newhall, 17 581 ; Shed ".Pierce, 17 633; Goodnow «. Smith, (18 P.) 35 414. 35. Such a covenant is not a discharge of the others, where it reserves the covenantor's rights against them. Kenworthy v. Sawyer, 125 28. 36. A discharge by operation of law, as in Dankruptcy, of one of two joint debtors, does not affect the other's liability "Ward v. Johnson, 13 148. 37. A release to one of two or more joint tort teasors, or a satisfaction received from him in compromise or settlement of the claim against him, or the collection of a judgment recovered for the tort against all or either of them, is an effectual release and discharge of all. Brown v. Cambridge, (3 A.) 85 474; Stone ». Dickinson, (5 A.) 87 29; Stone i). Dickinson, (7 A.) 89 26; Elliott v. Hayden, 104 180; Boston & A. Rail- road i>. Shanly, 107 568; Knight v. Telson, 117 458; Luce ■». Lexter, 135 23; Goss «. Ellison, 136 503. 38. And this whether the one released was liable or not. Leddy v. Barney, 139 394. 39. And where a receipt in full was given to one, oral testimony is inadmissible to show that it was intended to be only a partial satisfaction. Goss v. Ellison, 136 503. 40. The identity of the cause of action re- leased, with the cause of action prosecuted against the other, appears by showing that whatever action would lie against one would lie against the other. Leddy v. Barney, 139 394. 41. But an unsatisfied judgment against one joint tort feasor does not bar an action against the others. Elliott v. Hayden, 104 180; Knight D.Nelson, 117 458. 42. "Where a corporation, with knowledge of the facts, issues a new certificate of stock to one, to whom the trustee thereof has sold it in violation of the trust, proof of the claim by the cestui que trust, against the estate of the deceased trustee, and the receipt of dividends thereupon, are not a bar to his action against the corpora- tion, and are only a pro tanto satisfaction. Loring «. Salisbury Mills, 125 138. 43. A judgment against two jointly, is not discharged as to either, by the arrest and subse- quent release of one. Raymond ». Butterworth, 139 471. See, also, Cheney «. "Whitely, (9 C.) 63 289. 44. For a ruling that a compromise and set- tlement by an assignee in insolvency, with an indorser, discharged the original creditor, who had reasonable cause to believe the debtor to be insolvent, when he took the security, see Stimpson v. Poole, 141 502; cited in Insolvent, art. 227. Joint stock company; yoluntary association. [See, also, Corporation; Benevolent Associa- tion; Loan and Fund Association; Partner- ship, VI, (4); Eeligious association, as to a Joint stock association under a foreign statute, see Conflict op Laws, IIIJ (6).] 1. A partnership, with transferable shares, is legal in this Commonwealth. Phillips v. Blatchford, 137 510. See also, Alvord v. Smith, (5 P.) 22 232; Tyrrell 1>. Washburn, (6 A.) 88 466. 2. A provision in the articles of such a part- nership, that the shares shall not be transfer- able without the consent of the directors and the treasurer, will prevent an assignee, without 880 JOINT STOCK COMPANY— JOINT TENANTS. such consent, from maintaining a bill for an accounting. Kingman v. Spurr, (7 P.) 24 235. 3. Where the articles of such a partnership provide that the decease of a member shall not work a dissolution of it, or entitle his repre- sentatives to an account, but merely to succeed to his interest in the shares; the estate of a de- ceased member is liable to contribute to the other members, for the payment of debts incur- red after his decease, and before the executor had done any act, whereby he became a partner in the testator's place. Phillips v. Blatchford, 137 510. See, also, Tyrrell ».Washburn, (6 A) 88 466. 4. Where the articles confined the manage- ment of the business exclusively to a board of managers, and a debt was incurred, which one member paid, after he and others had been sued, it was held that his cause of action for contribution did not accrue before the payment. Phillips v. Blatchford, 137 510. 5. Where a voluntary unincorporated associ- ation, for purposes other than trading, etc., provides in its constitution and by-laws that the directors shall have the management of all its affairs, etc., that does not authorize them to contract a debt; only the members who were present when a vote to contract a debt was passed, or who assented to such a vote, are liable therefor, and may call upon each other for contribution. Newell v. Borden, 128 81; Volger v. Ray, 131 439; Ray v. Powers, 134 22. 6. The plaintiff is not precluded from show- ing orally that such a vote was passed, by the fact that the clerk of the meeting has destroyed the informal minutes, taken by him to prepare a record. Newell v. Borden, 128 81. 7. Wh3re the articles stipulate that a sub- scriber is not liable to pay an assessment, if he chooses to abandon his share to the company, and a refusal to pay an assessment operates as a forfeiture of his share, the subscribers are" not partners inter sese, and not liable to con- tribute beyond their subscriptions. Clark «. Reed, (11 P.) 28 446. 8. A mere association to run a line of stages, a general meeting, and the contraction of debts on account of the company, do not render the members partners inter sese, and prevent one who has paid a note, signed by all, from com- pelling contribution. Chandler i>. Brainard, (14 P.) 31 285. 9. The membership of a person sued for a debt of a company, organized as a voluntary joint stock association, may be proved by cir- cumstantial evidence of his acts and declara- tions. Tyrrell v. Washburn, (6 A.) 88 466; Taft®. Warde, 111 618; Machinists' Bk. v. Dean, 124 81. 10. A member of such an association, who withdraws without fraud, is, thereafter, as between himself an 1 the others, relieved from liability for the debts. Tyrrell t>. Washburn, (6 A.) 88 466. 11. If such an association, in the erroneous belief that profits have been realized, votes to issue new shares upon specified terms, a member who takes such new shares is, between himself and the others, liable for a proportion- ately increased share of the debts. Tyrrell t>. Washburn, (6 A.) 88 466. 12. A provision in the articles of a voluntary association, that in case a member is reduced in circumstances by fire, the society shall con- sider his case and grant him reasonable aid, does not give a member any vested right. Torrey t>. Baker, (1 A.) 83 120. 13. And a provision allowing an amendment of the articles in a particular mode, implies the power to adopt a rule for the disposition of its funds, wholly different from that which pre- viously existed; but such a change can be made only in the mode indicated. Torrey v. Baker, (1 A.) 83 120. 14. And where the name of the association has been changed by a vote in the regular way, and one of the three trustees refuses to join with his colleagues in a transfer to their succes- sors of the funds, etc., one or more of the mem- bers may maintain a bill in behalf of all, to compel such an assignment. Birmingham «. Gallagher, 112 190. 15. Three members of a board of eleven, appointed by a society to manage a fair, and take charge of the proceeds, cannot maintain an action to recover the proceeds from one act- ing as the treasurer. O'Gara®. Moriarty, 98 526. 16. For rulings, upon the interpretation and effect of particular provisions in the articles of association, by-laws, etc., of particular volun- tary or joint stock associations, see Danforth v. Allen, (8 Met.) 49 334; Ballou v. Wood, (8 C.) 62 48; Davis v. Allen, (9 G.) 75 322; Tyrrell v. Wash- burn, (6 A.) 88 466; Duff v. Maguire, 99 300; Whitman v. Porter, 107 522; Smith v. Moore, 129 222; Cook v. Gray, 133 106. 17. A deed, conveying land to a well known voluntary unincorporated association, which is not one of the class speciiied in G. S., Ch. 30, § 24; P. S., Ch. 39, § 9, maybe construed as a grant to the members, who take as tenants in common. Byam «. Bickford, 140 81. 18. For rulings as to the taxation of property, held in trust for a voluntary association, see Ricker v. American L. & T. Co., 140 346. Joint tenants; tenants in common. I. Of seal Property. (1.) What estates are held in joint tenancy or in common. (2.) Conveyance, or other alienation. (3. ) Rights and remedies. II. Of personal Property. [For additional or analogous cases, see Action; A ssumpsit ; Contract ; Deed ; Devise and Be- quest; Joint Liability; Mortgage, II, (4); Part- nership; Real Action; Seisin and Disseisin; Trespass: Trover, a b to partition, either volun- tarily c by legal proceedings, see Partition. As to disseisin and adverse possession by one joint tenant or tenant in common, or his grantee, as against the other, see adverse Possession, I.] JOINT" TENANTS, I, (1), (2). 881 I. Of real Property. (It) What estates are livid In joint ten- ancy or In common. [See, also, Deed, III, (3); Devise and Bequest, III, (6).] 1. At common law, a conveyance of a moiety, of land, in quantity and quality, creates an estate in common, between the grantor and the grantee. Adams v. Frothingham, 3 352. 2. Berrible, also, that at common law, a grant in fee to two persons, "jointly to be equally divided between them," creates a tenancy in common. Burghardt ». Turner, (12 P.) 29 534. See, also, Rickard n. Rickard, (13 P.) 30 251. 3. From the earliest times, grants under acts or resolutions of the legislature, to two or more persons in fee, have been construed as convey- ing estates in common, unless a different inten- tion is expressed. Higbees. Rice, 5 344. See, however, Eice «. Osgood, 9 38. 4. St. 1785, Ch. 62, § 4, did not, nor does the existing statute, create a tenancy in common, where a conveyance is made to husband and ■wife: they take by entirety, not by moieties; and neither can convey during the life of the other, so as to defeat the right of the survivor to the entire estate. Shaw v. Hearsey. 5 521; Pierce v. Ohace, 108 254. See, also, Fox v. Fletcher, 8 274. 5. But where land is conveyed to a man and woman before marriage, without words indi- cating a joint tenancy, the tenancy in common thus created is not affected by their subsequent marriage; and now the husband has no freehold in his wife's share. Walsh r. Young, 110 396. 6. Two mortgagees, holding separate mort- gages, executed at the same time, each to secure a separate debt, are tenants in common; and each may enforce his mortgage by a separate suit, or both may join in a writ of entry or a suit in chancery for that purpose. Cochran v. Goodell, 131 464. See, also, Burnett v. Pratt, (22 P.) 39 556; Gilson«j.Gilson,(2A.) 84 115; Howard n. Chase, 104 249. 7. But under an assignment of a mortgage to two persons, as trustees of an unincorporated association, they take as joint tenants. "Webster «. Yandeventer, (6 G.) 72 428. 8. The statute of 1785 was not unconstitu- tional with respect to previous conveyances, as it tended to make the estate more beneficial. Miller v. Miller, 16 59. 9. So as to a will which had previously taken 11. So under the R. S. Blake «. Sanborn, (8 G.) 74 154. Annable t>. Patch, (3 P.) 20 360. 10. The statute of 1785 did not apply to a mortgage to two to secure a joint debt, and they took as joint tenants; but upon' foreclosure they Became tenants in common. Appleton v. Boyd, 7 131; Goodwin v. Btchardson, 11 469. Vol, I— hi 12. That the assignment of dower to the widow of one having a homestead right, in certain rooms, etc., does not make her a tenant in common with the heir, see Weller v. Weller, 131 446, cited in Homestead, art. 19. 13. The statute does not apply to an estate created by disseisin, so that two or more persons who disseise another are joint tenants. Putney v. Dresser, (2 Met.) 43 583. 14. Where each of two persons has an appar- ently perfect title to the same land, by which he might hold the whole, except for the other's title, as where two creditors simultaneously at- tach the same land, and levy executions there- upon, they are tenants in common. Shove v. Dow, 13 529. 15. Real property, conveyed to partners, and purchased with partnership funds, vests in them as tenants in common. Ensign v. Briggs, (6 G.) 72 329. See, also, Pitts v. Waugh, 4 424; Goodwin ». Richardson, l'l 469; Whitman v. Boston & M. Railroad, (3 A.) 85 133. [As to the equitable rights of the survivors, and the equitable remedy of' creditors and others, see Partnership.] 16. Where A and B owned each an undi- vided half of land, and each paid half of the expense of building a house upon it, and A con- veyed to B that part of the land which included the house, reserving one half of the house, they remain tenants in common of the house, and of the land beneath it. Webster v. Potter, 105 414. 17. But the erection by A and B of buildings upon A's land, under an agreement that the buildings shall be owned in common, does not make them tenants in common of the land. Hurd n. Cushing, (7 P.) 24 169. 18. So where two religious societies agree to build a meeting house together, on land belong- ing to one. Manning ». Gloucester Parish, (6 P.) 23 6. 19. A residuary devise to A and B, and their heirs and assigns forever, creates an estate in common, and if either dies before the testator, his moiety descends to the testator's heirs. Jones v. Crane, (16 G.) 82 308. 20. Where two persons take a deed, by which nothing passes, they are neither joint tenants nor tenants in common, and neith r can main- tain a bill in equity against the other, founded upon that relation. v. Mann, (14 P.) 31 467. (2.) Conveyance, or other alienation. [See, also, Adverse Possession, I;J)eed, III, (3).] 21. A lease or a deed by one joint tenant or tenant in common, to a stranger;, of a specific portion of the land, by metes and bounds, is voidable by his cotenant. Porter v. Hill, 9 34; Varnum ». Ab- bot, 12 474; Niohols v. Smith, (22 P.) 882 JOINT TENANTS, I, (2), (3). 39 316; Dall «. Brown, (5 C.) 59 289; DeWitt v. Harvey, (4 GJ 70 486; Cun- ningham v. Pattee, 99 248. Tainter v. Cole, 120 162; Marks s.Sewall, 120 171. 22. So if the grantor takes back a mortgage on the portion conveyed, which he assigns, the assignee cannot deny the mortgagor's right to redeem. Bacon «. Bowdoin, (2 Met.) 43 591. 23. But a lease or deed by one tenant in com- mon to a stranger, is valid between the parties and against all persons, unless so avoided. Cunningham «. Pattee, 99 248. 24. And if the title of the cotenant entitled to disaffirm, becomes afterward vested in the grantor, it enures, by way of estoppel, to the benefit of the lessee or grantee. Cunningham ». Pattee, 99 248. See, also, Keay v. Goodwin, 16 1; Rising®. Stannard, 17 282; Johnson v. Stevens, (7 C.) 61 431; DeWitt v. Harvey, (4 G.) 70 486. 25. One entering, under a conveyance by one tenant of a specific portion, gains no seisin, right or wrong, against his granto^ or the other cotenant. Porter t>. Hill, 9 34. 26. The rules above stated apply, where one tenant conveys all his interest in a part only of several tracts owned in common. Blossom «.Brightman, (21 P.) 38 285; Peabody e. Minot, (24 P.) 41 329. 27. But if there are two distinct tenancies in common, one of two thirds in fee, and the other of the reversion of one third, the share of one tenant in common in either, may be conveyed separately. Peabody v. Minot, (24 P.) 41 329. 28. Qu., whether the rule against a separate conveyance of part, applies, where the common lands lie in different counties, and one tenant conveys his share of all the land in one county. Per Moston, J., in Peabody v. Minot, (24 P.) 41 329. 29. The rules above stated apply to a convey- ance by a tenant in common, of his entire share • in all the land, reserving a separate right to himself. Adam v. Briggs Iron Co., (7 C.) 61 361 30. And to a levy, under an execution, against one of the tenants, upon bis share in a specific portion of the common estate. Bartlet v. Harlow, 12 348; Baldwin ■». Whiting, 13 57; Blossom v. Bright- man, (21 P.) 38 285; Peabody v. Minot, (24 P.) 41 329; Brown v. Bailey, (1 Met.) 42 254. 31. A levy upon the undivided one seventh of land, under an execution against a tenant in common, who owns 9-64ths, is good even against the cotenant. Atkins ». Bean, 14 404. 32. A tenant in common may make a valid lease for a year of a specific portion of the land. Rising v. Stannard, 17 282. 33. And where two of three tenants in com- mon executed a lease for years of the entire estate, the lessee covenanting to insure for the benefit of the lessors, and he procured a policy, and assigned it, with the insurers' consent, to one, who received 'the whole amount of a loss, it was held that the latter was liable to the third cotenant for his proportion. Starts v. Sikes, (8 G.) 74 609. 34. The deed of a tenant in common, pur- porting to convey the whole estate, is good as to the grantor's share, and the grantee becomes tenant in common with the grantor's cotenant. By entering into possession, his title becomes good, as to the whole estate, as against strangers. Benedict v. Morse, (10 Met.) 51 223. For additional r:.:lings upon such a deed, see Deed, III, (3). 35. If one of two tenants in common, who hold by disseisin, abandons the land, the other continues to hold the entire land against the person disseised. Allen ii. Holton, (20 P.) 37 458. 36. An agreement by tenants in common, to five a good and sufficient warranty deed, is ful- lled, if each warrants the title to his share only. Coe «. Harahan, (8 G.) 74 198. 37. The death of one of several cotrustees vests the entire title in the survivors; but mere abandonment or mismanagement does not. Webster ». Vandeventer, (6 G.) 72 428. 88. The incorporation of tenants in common, for the better management of their business, does not transfer the title to the corporation, without a deed; nor does the transfer of all the shares by the members have that effect, although the land was occupied and used by the corpora- tion. Lefflngwell e. Elliott, (8 P.) 25 455; Holland t>. Cruft, (3 G.) 69 162. (3.) Rights and remedies. 39. If one, being the sole owner of a mill, and a tenant in common of another mill, uses in the former mill more water than appertains to it, his cotenants in the latter mill may have redress in equity. May v. Parker, (12 P.) 29 34. 40. If two tenants in common mortgage the land, and one pays the mortgage, he has a lien upon his cotenant's share for the latter's pro- portion. Roche v. Hampden Sav. Bk., 128 115. See, also, Sargent v. McFarland, (8 P.) 25 500; Dickinson v. Williams, (11C.) 65 258. 41. If the mortgagee sells under a power for more than the debt, and pays the entire surplus to one of the mortgagors, and the latter has paid so much more than his share of the inter- est, insurance, and taxes, that the half of the surplus will not reimburse him, the mortgagee is nqt liable to the other tenant. Roche «. Hampden Sav. Bk., 128 115. 42. At common law, one tenant in common, who has expended more than his share in re- JOINT TENANTS, I, (3). 883 pairing the common property, cannot maintain an action against his cotenant for his propor- Converse v. Ferre, 11 325; Calvert®. Aldrieh, 99 74; overruling dicta, Carver . "Williams, (11 C.) 65 258; Shepard «. Richards, (2 G.) 68 424; Peck t>. Car- penter, (7 G.) 73 283; Starks ». Sikes, (8G.) 74 609. [As to the rule between tenants in common of personal properiy, see pout, II.] 47. Such an action will lie after partition by legal process. Munroe v. Luke, (1 Met.) 42 459. 48. But a tenant in common who occupies the entire property, without any agreement with his cotenant, or any claim to possession by the latter, is not liable in assumpsit for use and occupation to the latter. Sargent ®. Parsons, 12 149; "Wilbur D.Wilbur, (13 Met.) 54 404. 49. Nor can he recover against a lessee from his cotenant, who has occupied the whole, under a lease from the latter of his interest only. Badger «. Holmes, (6 G.) 72 118. 50. An agreement between one of the co- tenants and the county commissioners, as to the location of a way over the common land, does not bind the other. Merrill i>. Berkshire, (11 P.) 28 269. 51. Nor, before the R. S., could one tennant apply for a jury, without joining his cotenant. Merrill v. Berkshire, (11 P.) 28 269; Dwight e. Hampden Com'rs, (7 C.) 61 533. 52. The seisin of one tenant in common, who floes not deny his cotenant's title, is the seisin of both. Barnard v. Pope, 14 434; Shumway «. Holbrook, (IP) 18 114. [See, also Adverse Possession, I.] 53. One tenant in common cannot maintain an action against another,- for breaking and entering the common close, and taking the crops. Keay i>. Goodwin, 16 1. 54. Or for cutting and carrying away wood. Hastings v. Hastings, 110 280. 55. But if one destroys the common estate, or ousts the other, the latter may maintain tres- pass quare clausuvi against him. Bennett ». Clemence, (6 A.) 88 10; Silloway v. Brown, (12 A.) 94 30. 56. As to the rights and liabilities of persons, occupying the same dwelling house as tenants in common, see Keay «. ■ Goodwin, 16 1. 57. If the legal title is solely in one, and he is in possession, he may maintain trespass quare dausum against another, also in possession, and claiming title as tenant in common with the plaintiff. Hunting v. Russell, (2 C.) 56 145. 58. A tenant in common may maintain an action against his cotenant for obstructing him in cleaning out a well. Newton v. Newton, (17 P ) 34 201. 59. Or for destroying their ancester's unre- corded deed, and procuring another deed to himself. Daniels ®. Daniels, 7 135. 60. An indictment for assault and battery will lie, for forcibly preventing a cotenant from removing his own personal property from the common land. Comm. v. Lakeman, (4 C.) 58 597. 61. A tenant in common may have a process for forcible entry against the other. Presbrey «. Presbrey, (13 A.) 95 281 62.' But he cannot maintain an action for treble damages, under the R. S., for continuing to occupy the land as before their ancestor's death, and, being the latter's administrator, cutting and carrying away the timb< r trees. Adams «, Palmer, (6 G.) 72 338. See, also, Goodridge v. Rogers, (22 P.) 39 495. 63. A homestead estate cannot exist in com- mon and undivided land. Thurston®. Maddocks, (6 A.) 88 427; Silloway v. Brown, (12 A.) 94 30; Bate8 v. Bates, 97 392. 64. One who buys standing grass from one tenant in common of the land, and cuts it, can- not avoid payment of the full price, because the other tenant has forbidden the payment. Brown «. Wellington, 106 318. 65. Towns claiming as tenants in common cannot join in a writ of entry; but if one may sue alone, the court may amend the writ by striking out the other's name. Rehoboth v. Hunt, (1 P.) 18 224. 66. So where joint tenants or_ tenants in common join in a real action, if it fails as to one, it must fail as to all, unless the writ be amended in like manner before verdict. Oxnard v. Kennebeck Purchase, lO 179; Thayer s. Hollis, (3 Met.) 44 369; Chandler v. Simmons, 97 508. 884 JOINT TENANTS, I, (3); II. 67. If the disseisor of one tenant in common has effected a partition, the disseisee may either recover his undivided moiety, or he may affirm the partition, and recover the part assigned therein to the disseisor. Brown v. Wood, 17 68. 68. One joint tenant under a mortgage title, cannot alone maintain a writ of entry to fore- close the mortgage, and the objection of the nonjoinder of the other may be now raised under the general issue. Webster v. Vandeventer, (6 G.) 72 428. 69. Tenants in common may join in an action for the destruction of their title deeds. Daniels v. Daniels, 7 135. 70. Or for the proceeds of wood, wrongfully taken from their land by the defendant. Gilmore v. Wilbur, (12 P.) 29 120. 71. Or for the rent due under a lease of the common land, where the covenants run to them jointly, although an agreement is annexed to the lease, and made part thereof, that half the rent shall be payable to each. Wall v. Hinds, (4 G.) 70 256. 72. Where one tenant in common took a lease • in his own name, and gave his notes for the rent, and, being unable to pay all his debts, compr mised the debt, and received a discharge from the landlord, it was held that he could recover against his cotenant only the latter's share of the sum paid to compromise. Mayhew v. Durfee, 138 584. 73. A tenant in common, who removes a structure placed upon the land, without his assent, by his cotenant, which excludes him from that portion of the land, is not liable to his cotenant in trespass, under P, S., Ch. 179, §§ 6 and 7. Byam ». Bickford, 140 31. II. Of personal Property. 74. The distinction between a partnership and a tenancy in common, or joint ownership of personal property, as respects the rights of individual creditors, is that a partner's share cannot be taken, until it is shown to be free from the lien of the other partners, but tenants in common have no lien upon each other's shares, and are not answerable for each other's debts. Thorndike®. DeWolf, (6 P.) 23 120. 75. Two persons who build a ship together, under an agreement that they shall own it in certain proportions, are tenants in common of the ship. Merrills. Bartlett, (6 P.) 23 46. See, also, French «. Price, (24 P.) 41 13. 76. So of a machine. Beaumont v. Crane, 14 400. 77. Tenants in common are presumed, in the absence of proof to the contrary, to be equally Glover v. Austin, (6 P.) 23 209. 78. Where the king of the Sandwich Islands gave the master of a ship a quantity of sandal wood, which he sold, it was held that th*e owners were tenants in common of the pro- ceeds, and the master was entitled to a portion of the proceeds for his agency. Thorndikea. DeWolf, (6 P.) 23 120. 79. One who advances money to the owners of a vessel and its cargo, upon a promise to pay him a proportion of the proceeds, does not be- come a tenant in common. Gallop 0. Newman, (7 P.) 24 282. 80. Where two persons buy a horse, each, paying half of the price, under an agreement that the one having possession of him shall pro- vide for his keeping, without cost to the other, and each shall endeavor to find a purchaser at a profit, but neither shall sell him without con- sent of the other, the mode of using and the expense of keeping are conclusive to show, that the transaction created a tenancy in common, and not a partnership. Goell v. Morse, 126 480. 81. And, therefore, the one keeping the horse has no lien on the other's share for any ex-' pehses incurred, as by shoeing, advertising, etc. Goell e. Morse, 126 480. 82. And where a third person, who had kept the horse for one part owner, sold him by the latter's authority; and after deducting his bill for keeping, paid the balance to the latter, it was held that both were liable for a conversion to the other part owner. Goell v. Morse, 126 480. See, also, as to the stranger's liability, Weld v. Oliver, (21 P.) 38 559; Burbank «. Crooker, 7G.) 73 158. 83. It is settled, in this Commonwealth, that one tenant in common of a chattel may main- tain trover against his cotenant, for convertng the chattel to his own use; and that such con- version is proved by the destruction or sale of the chattel, or any other act, which finally pre- cludes the other from any future enjoyment of it. Delaney v. Boot, 99 546; Needham w.Hill, 127 133. See, also, Daniels v. Daniels, 7 135; Weld «. Oliver, (21 P.) 38 559; Burbank v. Crooker, (7 G.J 73 158; Warner ®. Abbey, 112 355. 84. But a tenant in common cannot maintain trespass rr replevin against his cotenant. Bigelow ». Jones, (10 P.) 27 161; Barnes ». Bartlett, (15 P.) 32 71; Sillo- way v. Brown, (12 A.) 94 30. 85. Nor can a tenant in common maintain a replevin for his fractional part, where a delivery thereof cannot be made without delivering to him the whole chattel, in which another, al- though not a party, has a right of ownership. Hackett v. Potter, 131 50. See, also, Hart v. Fitzgerald, 2 509; Gard- ner v. Dutch, 9 427; Ladd v. Billings, 15 15; Webster v. Vandeventer, (6 G.> 72 428. ' 86. Qu. , whether a part owner may maintain replevin for the whole chattel, against a defend- ant who has no right to it, where the nonjoin- der of the other owners is not pleaded. Hackett v. P.tter, 131 50. See, also, Fay v. Duggan, 135 422. 87. A tenant in common cannot maintain any action against an officer who seizes the property, upon a writ against his cotenant. JOINT TENANTS, II— JUDGE. 885 Prince v. Shepard, (9 P.) 26 176; Hackett v. Potter, 131 50. 88. Nor can the purchaser from both main- tain such an action, if the sale by that one was fraudulent against his creditors. Kimball v. Thompson, (4 C.) 58 441. 89. But if the officer sells the entire interest, he is liable to the other tenant for his share; or the latter may affirm the sale and claim his share of the proceeds, if he gives notice before they are paid over. Melville «. Brown, 15 82; Prince v. Shepard, (9 P.) 26 176; Bryant v. Clif- ford, (13 Met.) 54 138. 90. If the officer sells only the undivided in- terest, the purchaser and the other cotenant are tenants in common. Prince v. Shepard, (9 P.) 26 176. 91. If one partner assigns his interest in the partnership to a stranger, the latter becomes a tenant in common. Kingman v. Spurr, (7 P.) 24 235. 92. Where the owner of land lets it to an- other for cultivation, upon an agreement to share the crops, the question whether the par- ties are tenants in common of the crops, before they are gathered and divided, depends in each case upon the peculiar facts and circumstances of the case itself, and must be governed by the intention of the parties manifested in the con- tract. And if the contract was oral, and is in- capable of being exactly proved, it must be left to the jury to determine what the contract was. Warner v. Abbey, 112 355; Orcutt «. Moore, 134 48. 93. Where the intention is clearly manifested, that the specific products were to be divided between them, and that they were to be jointly owners of the crops, they are tenants in com- mon. Walker ». Pitts, (24 P.) 41 191; De- laney v. Eoot, 99 546. 94. But where the contract shows that the lessee is to have the exclusive possession of the land and crops, until the latter are divided, the lessor has no interest in the crops until such division. Cornell v. Dean, 105 435; Darling v. Kelly, 113 29; Orcutt v. Moore, 134 48. 95. The circumstance that the land was ac- tually in the exclusive possession of the lessee, during the term, is strong evidence to show that his occupation was intended to be exclu- sive. Orcutt v. Moore, 134 48. 96. For other cases involving this question, see Chandler v. Thurston, (10 P.) 27 205; Munsell ». Carew, (2 C.) 56 50; Comm. ». Rigney, (4 A.) 86 316. [See, also, Contract, IV, (7).] 97. A joint owner of a patent right cannot maintain a bill in equity against another joint owner, to reach a share of the profits made by the defendant, from sales of the patented article, in the absence of an agreement. Vose v. Singer, (4 A.) 86 226. 98. But with respect to other personal prop- erty, an action at law lies in favor of one tenant in common against his cotenant, to recover his share of the proceeds of the sale of the prop- erty by the latter, or earnings of the property received by the latter, in excess of his just pro- portion. Brigham «. Eveleth, 9 538; Jones v. Harraden, 9 540, note; Fanning t>. Chad- wick, (3 P.) 20 420; Blood ». Blood, 1 lO 545. See, also, Shepard ». Rich- ards, (2 G ) 68 424; Peck v. Carpenter, (7G.) 73 283. [For the corresponding rule as to real property, see ante, I, (3).] 99. And as there is a remedy at law, a bill in equity will not lie for that purpose, without an averment of such facts as show that the remedy at law is inadequate. Blood i). Blood, 110 545. 100. Where one of the tenants in common has died, or become insolvent, the fact that a sale and division of the property are necessary to settle his estate, lays a sufficient foundation for the jurisdiction of equity. Field v. Craig, (8 A.) 90 357; Blood v. Blood, HO 545. [For cases arising upon an insurance, procured by one joint owner, see Insurance, V, (1). J Jointure. [See Dower; Widow.] Judge. [See, also. Bribery; Justice of the Peace. As to the effect of the election of a judge to the house of representatives, and the removal of a judge upon address, see Constitutional Law, III, (3).] 1. Art. 29 of the declaration of rights, as to impartiality, etc., of judges, incapacitates one from acting in any matter in which he has a pecuniary interest, or in which a near relative or connection is one of the'parties. Hall i>. Thayer, 105 219; In re Al- drich, HO 189. See, also, Pearce v. Atwood, 13 324; Hush v. Sherman, (2 A.) 84 596. 2. It applies to civil and criminal causes; and not only to judges of courts of common law, equity, and probate, but to special tribunals, and persons authorized on a special occasion to de- cide between parties with respect to their rights. Hall v. Thayer, 105 219. 3. The exceptions to the rule are those where, from the peculiar circumstances of the case, if interest in the judge ousted the court of juris- diction, the operation of the law would be de- feated. Comm. v. Ryan, 5 90; Pearce v. At- wood, 13 324; Hill v. Wells, (6 P.) 23 104; Comm. v. Emery, (11 C.) 65 406; Comm. ■». Burdinsr, (12 C^ 66 506; Comm. v. McLane, (4 G.) 427. 4. The objection of pecuniary interest may be removed by statute. Comm. i). Reed, (1 G.) 67 472; Comm. McLane, (4 G.) 70 427. 5. A police court, established by a statute, providing that its jurisdiction shall not be lim- 886 JUDGE— JUDGMENT. ited by reason of the interest of any of the jus- tices, in the payment of fines and costs into the treasury of the. town or county, has jurisdiction of an action to recover a statutory penalty, half of which goes to the town, and half to the plaintiff. Hanscomb ft Russell, (11 G.) 77 373. 6. Where the justice of a police court had heard the plaintiff state the case, and had con- ceived a prejudice in his favor, it was held that he properly declined to act, and called in the special justice. Williams ft Robinson, (6 C.) 60 333. See, however, Northampton v. Smith, (11 Met.) 52 390. 7. A judge of probate has no jurisdiction to settle an estate, where he has a demand against, or is a debtor to, the estate, although in the capacity of executor of another estate. See now G. 8., Ch. 119, § 4; P. S,, Ch. 158, § 4. Ex parte Cottle, (5 P.) 22 483; Coffin ft Cottle, (9 P.) 26 287; Sigourney ft Sibley, (21 P.) 38 101; Gay ft Minot, (3 C.) 57 352; In re Bacon, (7 G.) 73 391. 8. In such a case, under the existing statute, the jurisdiction is to be exercised in the probate court, by the judge of another county, acting by interchange, or pro 7iae vice. In re Aldrich, 110 189. 9. But his interest merely as a resident of a town interested, does not disqualify him. Northampton v Smith, (11 Met.) 52 390. 10. The principle applies to county commis- sioners laying out a way. Wilbraham ft Hampden Com'rs, (11 P.) 28 322; Tolland ft Berkshire Com'rs, (13 G.) 79 12. 11. And to a juror. Davis ft Allen, (11 P.) 28 466. 12. And to an appraiser of land set off on execution. Wolcott i). Ely, (2 A.) 84 338; McGough ft Wellington, (6 A.) 88 505. 13. And to a referee, although selected by the parties, unless the objection is known and waived. Fox ft Hazelton, (10 P.) 27 275; Strong ft Strong, (9 C.) 63 560. [For rulings as to the disqualification of a justice of the peace, see Justice ot the Peace, I, (1).] 14. Bemble, that a judge of the common pleas was not disqualified, from sitting at the trial of an appeal from his judgment, as a justice of the peace. Young ft Adams, 6 182. 15. An objection to the impartiality of the judge is an incurable defect, which renders the proceedings void, and incapable of being made good by confirmation, waiver, or ratification. Gay ft Minot, (3 C.) 57 352; Hall ft Thayer, 105 219. 16. But if the objection is then known to the counsel who conducts the cause, it must be taken at the trial. Crosby ft Blanchard, (7 A.) 89 385. So as .to a juror, Kent ft Charlestown, (2G.) 68 281. 17. The appointment by a judge of probate of his brother-in-law, as administrator cb bonis non of an estate, renders void so much of the decree as appoints him, but not the previous proceedings. Hall ft Thayer, 105 219; explained In re Aldrich, 110 189. 18. And a judge of probate is not disqualified from granting probate of a will, approving the executor's bond, issuing letters testamentary, or accepting the resignation of the executor, by the fact that his father-in-law is a creditor, if the latter is not a party to the proceedings. In re Aldrich, HO 189. 19. Where a judge has accepted an incom- patible office, or a justice of the peace has been elected to and taken a seat in the legislature, and still acts as a judge or justice, his right to hold the office can only be tried by information, or perhaps by an action against him; it cannot be questioned collaterally. Fowler ft Bebee, 9 231; Comm. ft Fowler, lO 290; J?i re Sheehan, 122 445; Comm. ». Taber, 123 253. 20. And his warrant protects the officer. Comm. ft Kirby, (2 C.) 56 577. 21. So as to the validity of the appointment of one who is acting, under a commission, as justice de facto. Coolidge «. Brigham, (1 A.) 83 333. 22. Where it has been held that one assuming to be a judge was not a judge de facto, and his proceedings were invalid, a statute ratifying them is unconstitutional. Denny ft Mattoon, (2 A.) 84 361; Fayerweather ft Dickinson, (2 A.) 84 385, note. 23. Every judge, whether of a higher or lower court, is exempt from liability to an action for any judgment given by him in the due course of the administration of justice; and this rule extends to an arbitrator. Hoosac Tunnel D. & E. Co. v. O'Brien, 137 424. See, also, Pratt ft Gardner, (2 C.) 56 63, and Justice op teb Peace, I, (2). Judgment. I. General Rules. (1.) Domestic judgment. (2.) Foreign judgment. n. Judgments in pabticulab, Cases. (1.) Judgment by default. (2.) Judgment nunc pro tunc. (3.) Two or more defendants. III. Akeest op Judgment ; Judgment non OBSTANTE VEREDICTO. IV. Action upon a domestic Judgment. (1.) When the action does or does not lie; pleadings. (2.) Defences; evidence; statutory presump- tion of payment. JUDGMENT, I, (1) 887 fSee, also, the titles of the different courts and of #,p different proceedings, civil and criminal; also SVucijtioh; interest ; Judge; Jurisdiction; TnsTiOB Of the Peace. As to a decree in equity, in equity Pleading and Practice, II, (7). as to Ement in a criminal cause, see Conviction and Stence. AS to the record of a judgment, see tStobd As to proof of a judgment.seeBviDENCE, VIII (2) As to a writ of error on a judgment, see TfREOR As to scire facias, see Scire Facias. As in a SDeoial judgment to preserve an attachment lien, in a bankruptcy or insolvent caBe, see Bankruptcy, n (3)- Insolvent, "VI, (3). As to the conclusiveness and effect of a former adjudication in a civil or criminal cause, see Estoppel, II, (1); I'ormer Ad- judication. As to the conclusiveness, effect, etc., of judgments rendered without the Commonwealth, see in courts of other states of the Union, Consti- tution 4l Law, II, (6); in courts of foreign coun- tries generally, Conflict of Laws, III, (5); in foreign admiralty courts, in blockade and prize causes, Insurance, V, (15) ; in a collision cause, In- surance, V, (7.) As to recovering back money paid upon a reversed or vacated judgment, or an exces- sive judgment, see Assumpsit, III, (2).] I. General Rules. (1.) Domestic judgment. 1. The expression "the court," as used in the statutes relating to judgments, means the court held, whether by one or more judges, at a term established by law. Greenwood v. Bradford, 128 296. 2. A judgment, obtained without legal notice or service of process on the defendant, is void- able only, not void. Hendrick v. Whittemore, 105 23; "Henderson v. Stamford, 105 504. 3. The defendant can avoid it only by plea, except where he is compelled to resort to a writ of eiTor; and upon such a pica the burden is upon him to show the invalidity of the judg- ment. Henderson v. Staniford, 105 504. See, also, Bissell». Wheelock, (11 C.) 65 277; Morrison v. New Bedford Sav. Inst. (7 G.) 73 269; Carleton v. Bickford, (13 G.) " 79 591; Wheeler v. Aldrich, (13 G.) 79 51. 4. Besides the defendant and those in privity with him, only those who derive from the de- fendant some light, which is affected by the judgment, can avoid it by plea. Henderson 1>. Staniford, 105 504. See, also, Downs v. Puller, (2 Met.) 43 135; Vose v. Morton, (4 C.) 58 27. 5. Where the writ is personally served upon the defendant he is constructively present in court, and a judgment by default is not a judg- ment rendered in his absence, within G. S., Ch. 146, § 21; P. S., Ch. 187, § 22, relating to a writ of review. Matthewson e. Moulton, 135 122; Smith «. Brown, 136 416. 6. Until the record is fully extended, the clerk's docket is the recerd. Read ». Sutton, (2 C.) 56 115; Green- wood v. Bradford, 128 296. 7. But the clerk's docket cannot be used to control an extended record. Pall River ». Riley, 140 488. 8. A judgment upon a report of referees ap- pointed under a rule of court, where the report has been accepted, must exactly conform to the report, and it may be conditional. Nelson «. Andrews, 2 164; Comm. v. Pejepscut Prop'rs, 7 399. 9. Upon a general order on the last day of term, that judgment be entered in all cases ripe for judgment, it is the duty of the clerk to enter judgment, which finally disposes of the case. Pierce v. Lamper, 141 20. 10. The superior court has no power to vacate such a judgment, upon a petition filed more than a year after it was entered. Piercer. Lamper, 141 20. 11. By the practice in this State, judgment is presumed to be entered on the last day_, unless, on motion, it is entered previously, in which case the time is minuted, and the thirty days, during which property attached is holden, are to be reckoned accordingly. (See, now, G. S., Ch. 133, § 1; P. S., Ch. 171, § 1.) Herring v. Polley, 8 113; Portland Bk. v. Maine Bk., 11 204; Pierce v. Lamper, 14 20. See, however, post, II, (1.) 12. Judgment against one " in his capacifry'of administrator," means a judgment de bonis pro- Hardy v. Call, 16 530. 13. Where a judgment is erroneously en- tered, by mistake of the clerk, against an administrator, de bonis propriis : instead of against the goods, etc., of the intestate, the record may be amended on motion. • Atkins v. Sawyer, (IP.) 18 351. See, also, Amendment, III. 14. A judgment erroneously entered in favor of one, who has died since the verdict, will be vacated, and the administrator will be allowed to come in. Stickney v. Davis, (17 P.) 34 169. 15. As to the validity of judgments against or in favor of deceased persons, and allowing the executor or administrator to amend, see Loringo.Folger, (7G.) 73 505; Crosby «. Leavitt, (4 A.) 86 410; Reid v. Holmes, 127 326; and post, II, (2). 16. Under the statute, St. 1875, Ch. 33; P. S., Ch. 187, § 17, the court may vacate a decree upon a mechanics' lien. Hubon v. Bousley, 123 368. 17. Before that statute, the court had no power to vacate a judgment entered without error or mistake, upon motion of the adverse party, after the term when it was reoovered. Mason i>. Pearson, 118 61. 18. Before the statute, a judgment against a married woman alone was wholly void. Morse i>. Toppan, (3 G.) 69 411. 19. A judgment in the common pleas, after the cause has been removed to the supreme court, is void. Boynton «. Poster, (7 Met.) 48 415. 20. After judgment in the superior court, and exceptions allowed, although not entered in the supreme judicial court, the superior court cannot enter final judgment, but the original judgment may be affirmed by the supreme judicial court on complaint, under R. S., Ch. 82, § 14. Gassett v. Cottle, (10 G.) 76 375. 888 JUDGMENT, I, (1), (2) 21. Where an action at law for breach of a covenant for title, in which the plaintiff claimed to be entitled for two undivided thirds of the value of the land, was restrained upon a bill in equity, and it was decided that the plaintiff was estopped to claim damages for more than one sixth of the value; it was held that although the ad damnum in the writ was less than two thirds the value of the land, he was entitled to one sixth of the value, if this did not exceed the ad damnum. Lucas «. Wilcox, 135 77. 22. A judgment can be impeached collate- rally for want o f jurisdiction, as by showing that there was no legal service of the writ. Fall River ». Riley, 140 488. [See, also. Former Abjudiction, II, (3).] (2.) Foreign judgment. [See, also. Conflict of Laws, III, (5); CONSTTnr- tional Law, II, (6); Insurance, V, (7) ; V, (15). 23. An action does not lie by A against B, for a conspiracy between B and C, in obtaining judgment against A, in a court of another state having jurisdiction, in which A appeared and was defaulted, and to satisfy which A's prop- erty was sold. Engstrom v. Sherburne, 137 153. See, also, Homer v. Fish, (1 P.) 18 435; McRae «. Mattoon, (13 P.) 30 53; Comm. «. Harkins, 128 79. 24. A creditor who has obtained a judgment in another state, which is not absolutely void by its laws, cannot maintain an action here upon the original demand. Henderson v. Staniford, 105 504. 25. But a judgment against joint contractors, upon service of process upon one only, is not a bar to an action here upon the original demand. Odom v. Denny, (16 G.) 82 114. 26. Where, after service of a trustee process attaching the wages of a seaman on a coasting voyage, the owners of the ship are compelled to pay the wages by a sentence of an admiralty court, sitting in another state, rendered with knowledge of the trustee process, tbey will not be charged as trustees by the State court. Eddy v. O'Hara, 132 56. See, also, Hull ». Blake, 13 153; Meriam v. Rundlett, (13 P.) 30 511; Wilkinson v. Hall, (6 a.) 72 568. 27. But where the defendant did not make full disclosure of the facts, to the court which rendered the foreign judgment, the latter will not protect him. Eddy v. O'Hara, 132 56. See, also, Wilkinson v. Hall, (6 G.) 72 568; Whipple v. Robbins, 97 107; Garity i>. Gigie, 130 184; Wardle v. Briggs, 131 518. [See, also, Conflict of Laws, III, (5).] 28. A judgment recovered in a foreign coun- try, during the pendency of a suit here for the same cause, is no defence to the suit here. Wood v. Gamble, (11 C.) 65 8. 29. An action of assumpsit lies on a judg- ment rendered in a foreign country; for, as it is only prima facie evidence, the defendant has all the benefit to which he would be entitled in an action for the original cause. Buttrick v. Allen, 8 273. 30. An action of debt lies here on a qui tarn judgment rendered in Pennsylvania, although part of the penalty will go to that state. Healy v. Root, (11 P.) 28 389. 31. So if the judgment was in favor of the ' Healy e. Root, (11 P.) 28 389. 32. In an action upon a judgment rendered in another state, the defendant may set off demands which he could not set off in the origi- nal action. Sheldon t>. Kendall, (7 C.) 61 217. 33. In an action of debt upon such a judg- ment, mil tiel record is the proper plea, and it should conclude with a verification. Halle. Williams, (6 P.) 23 232. See, also, Carleton «. Bickford, (13 G.) 79 591. 34. Upon such an issue it suffices to produce a copy of the record, without a copy of the antecedent or subsequent proceedings; and where the judgment was for the penalty of a bond, and by the laws of the other state, a fieri facias issues only for the sum actually due, such an execution will be awarded here. Rathbone». Rathbone, (10 P.) 27 1. 35. Where a discharge in bankruptcy might be pleaded in the other state, in an action upon the judgment, it may be pleaded here under the same circumstances. Haggerty v. Amory, (7 A.) 89 458. 36. A judgment in another state, convicting one of larceny, does not render him an incom- petent witness, but goes to his credibility. Comm. v. Green, 17 515. 37. Sernble, that an action at law lies upon the final decree of a court of equity, in another jurisdiction, for the .payment of a sum of money, including alimony. Allen «. Allen, lOO 373, disapprov- ing dictum in Battey v. Holbrook, (11 G.) 77 212. 38. An action lies here upon a judgment, rendered by a United States court in another state, upon scire facias sued out upon its own judgment, if the defendant had reasonable notice of the scire facias, as by service thereof in this Commonwealth. Comstock v. Holbrook, (16 G.) 82 111. 39. In an action upon a foreign judgment, where the execution has been returned partly satisfied, the plaintiff can recover only the sum for which it remained unsatisfied, although damages have been recovered against the officer for selling the goods, the proceeds of which formed the sum, for which it was partly satisfied. Arnold v. Roraback, (8 A.) 90 429. 40. A foreign judgment is not condusive here, if the party could not have had his rights adjudicated therein. Dooley v. Potter, 140 49. JUDGMENT, II, (1), (2). 889 II. Judgments in pamticular Cases. [See, also, the titles of the different actions.] (1.) Judgment by default. [See, also, ante, art. 5; Review, I.] 41. After the defendant's default, judgment goes, of course, unless there is good reason for postponing it; and if the plaintiff does not move for judgment, the defendant may, as where he wishes to set running the thirty days. Coolidge ». Cary, 14 115. 43. But where tone defendant only has ap- peared, he cannot have the others defaulted, so that he may use them as witnesses. Vinal i>. Burrill, (18 P.) 35 29. 43. As to the mode of rendering judgment, and the validity thereof, under St. 1784, Ch. 28, 8 7, now superseded by G. S., Ch. 133, § 2; P. S., Ch. 171, 82, see Jarvis v. Blanchard, 6 4. 44. An entry of judgment in the superior court upon default, made by the clerk, without special order, iray be stricken off at a subse- quent term, in the discretion of the court, and the cause brought forward, and others interested summoned in. Lucy v. Dowling, 114 92. See, also, Stickney v. Davis, (17 P.) 34 169; Capen v. Stoughton, (16 G.) 82 364. 45. And where, under the rule, the clerk has no power to make up and enter the judgment, because the necessary papers were not filed within six months after the judgment upon de- fault, the court may, upon petition, order the record to be completed, and the judgment made up and entered; and then it takes effect from the date of the original judgment. King v. Burnham, 129 598. See, also, Rugg v. Parker, (7 G.) 73 172; Parker v. Rugg, (9 G.) 75 209. 46. It was held that the justices' court of Suffolk had power to take off a default, suffered through the clerk's mistake, at a subsequent term day. Me parte Sawtell, (6 P.) 23 110. - 47. Where the inhabitants of a school district voted to be defaulted, in a suit against them, it was held that the proper course for the plaintiff, was to question the right of their agent or coun- sel to proceed further, rather than to move for a default. Hayward «. No. Bridgewater School Dist., (2C.) 56 419. 48. Under G. S., Ch. 129, § 62; P. S., Ch. 187, § 65, a consent to be defaulted, and offer of judgment, filed during vacation, take effect on the first day of the next term. Madden v. Brown, 97 148. C2.) Judgment nunc pro tunc. 49. As to judgment by special order, where the papers were not filed within six months, see, King 1>. Burnham, 129 598. 50. Upon overruling a motion for a new trial, only the court, at an established term, not a Vol. 1—112 judge in vacation, can render judgment as of the former term, where the cause has not been continued nisi. Greenwood v. Bradford, 128 296. 51. Under rule 44 of the superior court, it is within the discretion of that court, to the exercise of which an exception will not lie, to order a judgment to be recorded which was rendered at a former term; and subsequent partial payments make no difference. Brewster ■». Warner, 136 57. 52. Where a party dies after verdict in his favor, while a motion for a new trial is pend- ing, the court may direct a judgment nunc pro tunc, but the clerk cannot so enter it without an order. Reid v. Holmes, 127 326: Cowley ». McLaughlin, 137 221. 53. Where, in tort aga.nst three aefenaants, they had a verdict, and the plaintiff moved for a new trial, which was granted as to one only, and another died, pending the motion; where- upon the plaintiff filed a discontinuance and con- sent to judgment against him, which the clerk entered on the docket, and subsequently in vacation struck out the second entry; it was held that the judge, at a subsequent term, cor- rectly ordered judgment for the deceased defendant, as of the term when the verdict was rendered; for the one who had a new trial, as of the term cf the discontinuance; and for the other defendant as of the then term. Cowley v. McLaughlin, 137 221. 54. The statute allowing the court to render a judgment nunc pro tunc does not use the words "motion for a new trial," in a techni- cal sense; but they include every case, where the cause is continued upon motion of a dis- satisfied party, who seeks to be relieved from a verdict. Springfield v. Worcester, (2 C.) 56 52; Tapley v. Goodsell, 122 176. 55. And it is the common course to allow judgment nunc pro tunc so as to prevent injus- tice, wherever a party dies after a cause, either at law or in equity, has been continued for advisement. Perry v. Wilson, 7 393; Currier ». Lowell, (16 P.) 33 170; Springfield v. Worcester, (2 C.) 56 52; Emery v. Parrott, 107 95. 56. But the court will not do so, where the party entitled delays his application, until the statute bar has closed upon claims against the decedent's estate. Terry «. Briggs, (12 C.) 66 319. 57. It is immaterial whether an adminis- trator has been appointed. Tapley v. Martin, 116 275. 58 Or whether the cause of action survives. Kelley v. Riley, 106 339. 59. A judgment rendered nunc pro tunc is conclusive against a surety of the. decedent. Tapley n. Goodsell, 122 176. 60. Where, after the defendant had been defaulted, and the trustee in a trustee process had answered unsatisfactorily, and a further examination was ordered, both the defendant and the trustee died before the ensuing tern:, 890 JUDGMENT, II, (2), (3); III. the court rendered judgment and gave execu- tion against the trustee, as of the former term. Patterson v. Buckminster, 14 144. 61. Where a special tribunal was abolished, and its jurisdiction vested elsewhere, after a return to an alternative mandamus, the court refused to award a peremptory mandamus, as of a previous term. Springfield v. Hampden Com'rs, (6 P.) 23 501. 62. But where the statute, upon which the successful party's right rests, is repealed, pend- ing exceptions, after a verdict or other decision in his favor, the court, on overruling the excep- tions, will render judgment as of a term before the repeal. Springfield v. Worcester, (2 C.) 56 52: Whiting v. Whiting, 114 494. 63. Where, however, a statute granting juris- diction where one judge only was present, upon appeal from the probate court, was passed after the cause was continued nisi, the full bench refused judgment as of the previous term, when one judge only was present, as the record would show a want of jurisdiction. Thaxter ». Weston, 2 445. 64. Where a statute allowed ten per cent damages fjir refusing payment of bank bills, and the cause was continued for advisement, the court directed judgment for such damages only to the time of the continuance. Brown ■». Penobscot Bk., 8 445. (3.) Two or more defendants. 65. Where an action is brought against several defendants, upon several promissory notes, and a verdict is rendered against one defendant upon one of them only, and against all on the others, separate judgments cannot be entered; but the plaintiff must elect upon which verdict he will take judgment, and he may amend his declaration accordingly upon terms. Leonard v. Bobbins, (13 A.) 95 217. 66. Before St. 1834, Ch. 189, in an action of contract against two or more defendants, upon a verdict or default against some only, no judgment could be rendered. Tuttle «. Cooper, (10 P.) 27 281. 67. Except that, where some could not be served with process, by reason of absence from the Commonwealth, the plaintiff might take judgment against those served. Tappan v. Bruen, 5 193. 68. For rulings under the statute of 1834, and the subsequent statutes in pari materia, see Goodnow v. Smith, (18 P.) 35 414; Hathaway v. Crocker, (7 Met.) 48 262; Wiggin v. Lewis, (12 C.) 66 486. 69. Under the existing statutes, if, in an action against husband and wife upon a joint promissory note, the plaintiff discontinues as to the husband, by reason of proceedings in bank- ruptcy against him, and proof of the note against his estate, he may prosecute the action to judgment against the wife. Goodnow v. Hill, 125 587. III. Arhest op Judgment; Judgment non OBSTANTE VEREDICTO. [See, also, Indictment, V, (1); Pleading, I, (4).] 70. In a criminal cause, a motion in arrest of judgment may he most conveniently filed before the argument of the exceptions; but there is no established rule. Comm. v. Dana, (2 Met.) 43 329. 71. If a defendant who is convicted does not appear, after being called, the court is not re- quired to decide, in his absence, a motion in arrest. Comm. v. Dowdican, 115 133. See, also, Comm. ». Andrews, 97 543. 72. It is no cause for arresting judgment in partition, that the description of the land is loose and uncertain. Mitchell v. Starbuck, lO 5. 73. Judgment will not be arrested, because the judge, by whom the writ bears teste, is of the same name as the plaintiff. Prescott v. Tufts, 7 209. 74. Where there is a misjoinder of counts, judgment will not be arrested, if one is stricken out by leave of the court, before the cause goes to the jury. Prescott v. Tufts, 7 209. 75. And where there is a fatally defective count, a general verdict may be amended so as to apply to a good count, and thus avoid an arrest of judgment. Smith v. Cleveland, (6 Met.) 47 332. 76. So of a misjoinder, where the jury were instructed that the defendants were not respon- sible upon one count, and there was no request to assess damages upon each count separately. Richmond «. Whittlesey, (2 A.) 84 230. 77. Judgment will not be arrested for an irregularity in taking the verdict. Fuller v. Chamberlain, (11 Met.) 52 503. 78^ Or because the writ was not indorsed by the plaintiff's attorney, or the service thereof was informal, or the venue was laid in a wrong county, or the defendant, being a corporation, was misnamed, it having appeared and pleaded by its proper name. Gilbert v. Nantucket Bk., 5 97. 79. Or because the proof showed that the note, alleged in the declaration to have been indorsed, and so found by the verdict, was not indorsed regularly and in legal form. Boot v. Henry, 6 504. 80. Or because a transitory action is brought in the wrong county. Barry v. Page, (10 G.) 76 398. 81. Or because » trustee was summoned to appear out of his own county, contrary to the B. S. Brown v. Webber, (6 C.) 60 560. 82. Or for nonjoinder of a plaintiff. Morgan ». 'Stone, (11 C.) 65 253. 83. Or because one of the demandants died before the date of the writ. Emery «. Osgood, (1 A.) 83 244. JUDGMENT, III; IV, (1). 891 84. Or because the note in suit is dated on the Lord's day. Hill s. Dunham, (7 G.) 73 543. 85. Or in the common pleas, because the magistrate did not default the defendant at once, but continued the cause, thereby increas- ing the witnesses' fees. Crippen «. Byron, (4 G.) 70 314, 86. Or because a writ, entered in the supreme iudicial court, did not have annexed to it the affidavit required by G. S., Ch. 112, § 6; P. S„ Oh. 150, § 5. McLaughlin v. Cowley, 127 316. 87. Judgment will be arrested if no action will lie for the cause alleged in the declaration. Stowell v. Plagg, 11 364. 88. Or where the plaintiff sues in a police court for a sum beyond its jurisdiction. McQuade v. O'Neil, (15 G.) 81 52. 89. Or for any other want of jurisdiction. Elder v. Dwight Man. Co., (4 G.) 70 201. 90. Or for joinder of a count by an adminis- trator, upon a promise to the intestate, with a count upon a promise to himself. Brown v. Webber, (6 C.) 60 560. 91. Or where a local action is brought in the wrong county. Robinson v. Mead, 7 353. 92. A charge of fraud against a poor debtor, is not a " civil action" within the statute, and a motion in arrest of judgment therein may be granted for anv good cause after verdict. Chamberlain v. Hoogs, (1 G.) 67 172. 93. A motion in arrest of judgment may be decided by a single judge, and the unsuccessful party may have his writ of error. ' , Root v. Henry, 6 504. 94. A plea of tender of rent, after the day when it fell due, is bad; and if there is a ver- dict for the defendant upon such a plea, the plaintiff is entitled to judgment non obstante Dewey v. Humphrey, (5 P.) 22 187. [As to arrest of judgment, see, also, Justice of the Peace, arts. 6, 35.] IV. Action upon a, domestic Judgment. [As to the remedy by scire facias or execution; see those titles. As to an action upon a foreign judg- ment, see ante, I, (2).] (1*) AVlien the action does or does not He; pleadings. 95. An action of a contract upon a judgment is the remedy most commonly used in this Com- monwealth, although scire facias also lies to obtain execution thereupon, against the estate of a deceased judgment debtor. Knapp «. Knapp, 134 353. 96. Before the practice act, debt was an ap- propriate form of action upon a judgment. Allen i). Holden, 9 133; Clark v. Goodwin, 14 237. 97. It is not an objection to the maintenance of an action upon a judgment, that an execu- tion has been issued thereupon, whether it has or has not been returned; and, in the latter event, although the bail have surrendered the judgment debtor. Clark 1). Goodwin, 14 237; Linton i>. Hurley, 114 76; Wilson e. Hatfield, 121 551. 98. Or that the officer has been sued for neglecting to serve the execution, and has settled with the creditor. ' Alden v. Holden, 9 133. 99. Or that an appeal has been claimed and allowed, if the case is one in which an appeal cannot lawfully be taken. Campbell v. Howard, 5 376. 100. Or that 1he officer, having arrested the judgment debtor, discharged him without the creditor's consent. Appleby v. Clark, 10 59. 101. Or that a petition for review has been, filed, and a supersedeas of execution issued. Gifford v. Whalon, (8 C.) 62 428. 102. Or that the judgment debtor was ar- rested and taken before a magistrate, if he did not obtain his discharge as a poor debtor, accord- ing to law. Brown v. Kendall, (8 A.) 90 209. 103. An action lies upon a decree for salvage, by a United States admiralty count and it is not barred in six years. Brown v. Bridge, "* 06 563. 104. An action at law will not lie upon a de- cree for alimony made within this Common- wealth. Allen v. Allen, 100 373. [See Divorce, IV.] 105. Nor where the judgment debtor was taken in execution, and discharged by the cred- itor's consent, or admitted to the jail limits, except as otherwise prescribed by statute. Dunning v. Owen, 14 157; King v. Goodwin, 16 63; Coburn v. Palmer, (IOC.) 64 273. [See, aiso. Execution, VI.] 106. Where a levy has been maae Upon land to the amount of the judgment, and duly re- corded, and the execution has been returned accordingly, an action does not lie upon the judgment, although the land did not belong to the debtor: the only remedy is by scire facias. Dennis v. Arnold, (12 Met.) 53 449; Perry v. Perry, (2 G.) 68 326; Dewing v. Durant, (10 G.) 76 29. [See, also, Scire Facias.] 107. Formerly it was held otherwise. Greene ■». Hatch, 12 195;Goochs. Atkins, 14 378. 108. Sernble, that although the execution has been levied, an action lies upon the judgment, if it has not been returned. Ladd v. Blunt, 4 402. 109. So, sernble, if the proceedings appear on their face to have been irregular. Tate ii. Anderson, 9 92; McLellan «. Whitney, 15 137; Lawrence v. Pond, 17 433. 110. But a mere failure to record the levy in the registry of deeds, within the time required 892 JUDGMENT, IV, (1), (2)— JUNK DEALER. by statute, will not sustain an action upon the judgment, if no intervening rights have ac- crued to others, and the creditor remains in possession. McLellan v. Whitney, 15 137. 111. If a judgment against two joint debtors is absolutely v> id as to one for want of juris- diction, an action upon it will not lie against the other. Hall v. Williams, (6 P.) 23 232. See, also, Knapp v. Abell, (10 A.) 92 485. 112. Where A, having recovered judgment against B and C, as copartners, undertook, for a valuable consideration with B, not to sue out process, by which B's separate estate might be taken, and B, having died insolvent, and A, having presented his claim to the commission- ers, who rejected it, brought debt on the judg- ment againstB's adminis'.ratof ; it was held that the action could not be maintained. Sewall v Sparrow, 16 24. 113. As to the general sufficiency of a decla- ration upon a judgment, see O'Neal v. Kittredge, (3 A.) 85 470 114. A declaration, setting forth the recovery of a judgment, the issuing of an execution, and an acknowledgment of satisfaction, by receipt of a note f»r the amount thereof; that the note was, by mistake, written for a smaller amount; and that, to that extent, the judgment is unsatis- fied; sets forth a good cause of action for the unsatisfied amount. ' Canfield v. Miller, (13 G.) 79 274 115. An administrator may declare, in his own name, upon a judgment recovered by him as administrator. Talmage «. Chapel, 16 71. (3.) Defences; evidence; statutory pre- sumption of payment. 116. Either in scire facias, or in debt upon the judgment, no defence is admissible which ex- isted prior to the judgment, Thatcher v. Gammon, 12 268; Rich- ards n®. Wolcott, (10 A.) 92 439. See, also, Homer v. Fish, (1 P.) 18 435; Hall i). Williams, (6 P.) 23 232; Gleason v. Dodd, (4 Met.) 45 333; Sheldon v. Ken- dall, (7 C.) 61 217; Brigham v. Burn- ham, (12 A.) 94 97. 117. And evidence that before the judgment was rendered against two, the plaintiff agreed to release one, and that the other should be liable only for one half, is incompetent. Stephens «. Howe, 127 164. 118. It is no defence that the judgment was erroneous, if it has not been reversed. Hawes v. Hathaway, 14 233. 119. An exception does not lie to the decision of the court, in an action upon a judgment ob- tained by default, and without the defendant's knowledge, whether or not to allow him, under G. S., Ch. 129, § 78; P. S., Ch. 167, § 81, to show in defence matter which he might have shown on a writ of review. Mowry v. Chase, lOO 79. 120. That statute does not allow the defend- ant to dispute a judgment rendered upon an ar- bitrator's award. Brigham i>. Burnham, (12 A.) 94 97. 121. Payment of a judgment by one joint judgment debtor, operates to discharge all. Holmes v. Day, 108 563; Nat. Secu- rity Bk. ». Hunnewell, 124 260. "122. Payment by sureties in an attachment bond, of an execution for costs only, issued upon a judgment against the principal defendant, for which a receipt, but not a release, was given, is merely a payment pro tanto, and does not dis- charge them as to the remainder. Wood v. Mann, 125 319. 123. The presumption of payment, declared by R. S., Ch. 120, § 24; G. S., Ch. 155, § 23; P. S. , Ch. 197, § 23, may be rebutted by any kind of legal evidence, tending to show that the judg- ment has not been paid; and if the evidence fur- nished is such as to produce conviction that the judgment has not been paid, it suffices to rebut the presumption. Walker «. Robinson, 136 280. See, also, Denny v. Eddy, (22 P.) 39 533; Knapp «. Knapp, 134 353. [See, also, Limitation op Actions, IV, (2).l 124. In an action upon a bond, conditioned that a judgment should be satisfied, the produc- tion of an execution, unserved and unsatisfied, will warrant a finding that it is not satisfied, in the absence of any other testimony. Huntress v. Burbank, 111 213. 125. Upon an issue of nul tiel record, the su- preme judicial court will receive an attested copy of the record of the common pleas. Ladd v. Blunt, 4 402. 126. Such an issue, upon a domestic judg- ment, is to the court, not the jury. » Hall s. Williams, (6 P.) 23 232. 127. A record, setting forth that A recovers of B "costs of suit, taxed at ," will not support a declaration on the judgment as for a fixed sum, and the omission cannot be supplied by a resort to the clerk's docket. Noyes v. Newmarch, (1 A.) 83 51. 128. But in an action against Newbury Day, on a judgment against " Day," oral evi- dence is admissible that he is the man. Root v. Eellowes, (6 C.) 60 29. 129. If a writ of error to reverse a domestic judgment is open to the defendant, he cannot set up, in an action upon the judgment, that the court had no jurisdiction, because there was no proper service of the writ. McCormick v. Fiske, 138 379; Kit- tredge v. Martin, 141 410. Judicial sale. [See Execution, II, (2) ; IV, (2); Taxation, VH, Junk dealer. 1. Upon the trial of a licensd junk dealer for recriving stolen goods, where it appeared that he did not keep the book required by P. S., Ch. 102, § 29, the testimony of an inspector of junk JUEISDICTION, I, (1). 893 shops that he notified the defendant, before the offence, was committed, that unless he kept the book he would report him, and that the defend- ant then promised to keep the book, is compe- tent, Comm. v. Leonard, 140 473. Jurisdiction. I. Courts and othbb Tribunals of the Commonwealth. (1.) In a civil cause. (2.) In a criminal cause. II. Courts of the United States; exclu- sive AND CONCURRENT. [See, also, the titles of the different actions and proceedings, civil and criminal, and the titles of the different courts; also Action; Court; Indict- ment; Justice of the Peace ; Poor Debtor ; also Judgment, and the different titles referred to under the captions to that title. As to ju- risdiction in equity, see Equity Jurisdiction. As to the general jurisdiction of the United States courts, see Constitutional Law, II, (7); of the State courts, see Constitutional Law, III, (3) . As to coucurrent jurisdiction of the United States courts and state courts, see, also, Bank, II; Bank- ruptcy, II, (1); Customs; Internal Revenue. As to impeaching a judgment for want of jurisdiction, see Former Adjudication, II, (3). As to the re- moval of caus< s from one court to another, see Re- moval op Cause. As to jurisdiction, as affected by defects in the writ or the service thereof, see Abatement, II,' (1) ; Scire Facias ; Writ. As to jurisdiction in an action or suit in equity, against a foreign corporation, see Corporation, v II.] I. Courts and other Tribunals of the Commonwealth. (1.) In a civil cause: 1. In this Commonwealth, jurisdiction is assumed to be exercised against parties who have been inhabitants of the Commonwealth, although they are not so at the time when the suit is brought. Morrison v. Underwood, (5 C) 59 52; Orcutt v. Ranney, (10 C.) 64 183; Hen- derson v. Staniford, 105 504. See, also, Hall o. Williams, (6 P.) 23 232; Gillespie v. Com'l Ins. Co., (12 G.) 78 201. 2. If a court acquires jurisdiction by the residence of the person summoned as trustee, his subsequent discharge does not oust the juris- diction over the other parties. Raymond v. Butterworth, 139 471. 3. The jurisdiction of the supreme judicial court, as a court of common law, is unlimited, and all cases cognizable by the courts of com- mon law in England are cognizable therein. Barrell v. Benjamin, 15 354. 4. The rule that consent, a general appear- ance, cr_ other waiver, cures objections to the jurisdiction, applies to objections growing out of defects in the process, and has no applica- tion unless the court has jurisdiction of the subject matter. Consent or waiver may give jurisdiction of the person, but cannot create a jurisdiction over the cause and subject matter, which is not vested in the court by law. Brown v. "Webber, (6 C.) 60 560; Ashuelot Bk. v. Pearson, (14 G.) 80 521; McQuade v O'Neil, (15 G.) 81 52; Riley 11. Lowell, 117 76; Santom v. Ballard, 133 464. See. also, Foster v. Durant, (2 C.) 56 544; Murphy ». Mer- rill, (12 C.) 66 284; Loomiss.Wadhams, (8 G.) 74 557; Barry v. Page, (10 G.) 76 398; Briggs v. Humphrey, (1 A.) 83 371; Lawrence v. Bassett, (5 A ) 87 140; Cahoon v. Harlow, (7 A.) 89 151; Bearce v. Bowker, 115 129; Peabody v. Boston School Com., 115 383. 5. Such an objection may be taken at any time before judgment. Santom «. Ballard, 133 464; S-milh v. Brown, 136 416. See, also, Martin . Comm., 1 347; Simonds v. Parker, (1 Met.) 42 508; Richardson v. Wel- come, (6 C) 60 331; Elder i: Dwight Man. Co., (4 G.) 70 201; Riley v. Lowell, 117 76; Custy *. L. well, 117 78; Cheshire v. Adams and C R. Co., 119 356. 6. Where the statute affixes certain condition* to the right of appeal, to a writ of review, or other revision of a decision, the failure to con- form to the statute is a jurisdidional defect, which is not waived by appearance, and may be taken in the appellate court at any time be- fore judgment. Santom v. Ballard, 133 464; Smith v. Brown, 136 416. 7. The judgment or decree of a court, upon a matter of which it has no jurisdiction, is void ; and may be treated as such in any c> llateral proceeding, if such want of jurisdiction ap- pears. Peters «. Peters, (8 C.) 62 529; Jochumsen v. Suffolk Bk., (3 A.) 85 87; Mercier i>. Chace, (9 A.) 91 242. 8. But a statutory requirement of notice or the like, in order to exercise a jurisdiction, con- ferred upon a court in general terms, does not create a jurisdictional requisite; and a defect therein is available only upon appeal, review, or other direct proceeding to vacate the erro- neous proceeding. Emery «. Hildreth, (2 G.) 68 228; Bassett v. Crafts, 129 513; McKim ». Doane, 137 195. 9. Where the want of jurisdiction depends, upon matter of law, apparent upon the face of the record, a plaintiff against whom judgment is rendered, may bring error to reverse it. Jordan v. Dennis, (7 Met.) 48 590; Riley v. Waugh, (8 C.) 62 220. 10. Where two or more tribunals have con- current jurisdiction, the one whe se Jurisdiction first attaches acquires exclusive jurisdiction, and while the proceedings are pending in it, no action can be taken by the other. Stearns «. Stearns, 16 167; Powers v. Springfield City Council, 116 84; Miller v. Barnstable C'om'rs, 119 485; Brockton v. Cross, 138 297. 11. If the indorsement of the petition shows that it was filed after, but the record shows that it was presented before, the other tribunal acquired juiisdiction, the record controls. Brockton v. Cross, 138 297. 894 JURISDICTION, I, (1), (2). 12; For an application of the general rule, to a case where the land in controversy was set off to another state, see Brown 0. Desmond, 100 267. 13. Where a special tribunal is created by a statute, which is repealed, without a saving clause, it cannot proceed to finish proceedings then pending before it. Springfield 0. Hampden Com'rs, (6 P.) 23 501. 14. But where an action was commenced in such a court on the day when the repealing statute was passed, but with a saving clause; it was held that the action could not be dismissed, without proof that it was commenced it a later hour, than that when the statute was approved by the governor. Kennedy 0. Palmer, (6 G.) 72 316. 15. Where the record stated that the justices of two different courts had taken cognizance of the cause, and the same persons were justices of both courts, but only one had jurisdiction, it was held that the description of the other might 1 e rejected as surplusage. Hill 0. Wells, (6 P.) 23 104. 16. The court will, of its own motion, decline to proceed further, where it appears that it has no jurisdiction, although no plea to the juris- diction has been filed. Lawrence 0. Smith, 5 362. 17. Where a statute limits the jurisdiction of a court by " the debt or damages claimed," these words refer to the ad damnum clause in the writ, not to the amount claimed in the declaration, or proved at the trial. Chamberlain 0. Cochran-, (8 P.) 25 522; Hapgood 0. Doherty, (8 G.) 74 373; Trees 0. Rushworth,(9G.) 75 47; Ladd Kimball, (12 G.) 78 139; Ashuelot Bk Pearson, (14 G.) SO 521; Clayu. Barlow, 123 378. 18. Where the ad damnum of the writ is for a sum which exceeds the jurisdiction, it cannot be amended upon appeal, although the recovery was for nominal damages. McQuade v. O'Neil, (15 G.) 81 52. 19. Where a warrant to assess damages is made returnable to the wrong tribunal, the error is fatal, and cannot be cured by transmission to the right tribunal. Hampshire & H. Canal 0. Ashley, (15 P.) 32 496. 20. Where jurisdiction of a cause, the defend- ant in which resides in another state, depends upon an attachment, the record must show an actual and effectual attachment; and where it depends upon a notice, the notice must be such as the court is competent to direct, and as may be served within its jurisdiction. Ewer 0. Coffin, (1 C.) 55 23. 21. A personal or transitory action maybe maintained in our courts, although both of the parties are, or either is, an alien, and the trans- action occurred elsewhere. Barrell 0. Benjamin, 15 354; Roberts 0. Knights, (7 A.) 89 449; Peabody 0. Hamilton, 106 217. 22 In an action of trespass, for destroying the plaintiff's "camp," consisting of a wooden one story building without a cellar, upon an island in another state, if the defendant would oust our courts of jurisdiction, he must prove that the property was realty. Rogers 0. Woodbury, (15 P.) 32 156. 23 An action of tort for diverting the waters of a natural stream in this Commonwealth, and thus preventing them from going to the plain- tiff's mill, in another state, may be maintained here. Mannville Co. 0. Worcester, 138 89. 24. The probate court has jurisdiction, under P. S. , Ch. 147, § 33, of a petition by a wife against her husband for a maintenance, where the parties married here, and the husband has removed to another state, the wife remaining here; and an order, made upon n ,tice served upon him in the state of his domicil, may be enforced against his property here, and his person, if he is found here. Blackinton 0. Blackinton, 141 432. (2.) In a criminal cause, [See, also, Indictment and Complaint] 25. In a criminal cause, " jurisdiction " em- braces every kind of judicial action upon the subject matter, from finding the indictment, to pronouncing the sentence; and if the jurisdic- tion is transferred from one court to another, it carries with it the power to inflict any punish- ment, which the former court might have in- flicted. Per Shaw, Ch. J., in Hopkins 0. Comm., (3 Met.) 44 460. 26. A statute giving a court jurisdiction of an offence does not, per se, take away the juris- diction already possessed by another court. Comm. 0. Byce, (8 G.) 74 461 Comm. 0. O'Connell, (8 G.) 74 464 Comm. 0. Hudson, (11 G.) 77 64 Comm. 0. Rowe, (14 G.) 80 47. 27. One who is not a citizen of this Com- monwealth may be convicted here, of homicide caused by injuries, inflicted on the high seas in a foreign merchant vessel, if the injured person dies here. Comm. v. Macloon, 101 1. 28. A prisoner of war may be convicted of any offence committed here, which is malum in se. The Government and People, etc., v. McGregory, 14 498. 29. The statute which provides that where the cause of death happens in one county, and the death happens in another, an indictment may be found in the latter, is constitutional. Comm. 0. Parker, (2 P.) 19 550. 30. It applies where the cause of death was a shot from a pistol, fired in an adjoining county, .more than one hundred rods from the boundary line, and the death happened in the county where the indictment was found, within one hundred rods from the boundary line. Comm. 0. Costley, 118 1. 31. Where an offence is committed within one hundred rods of the boundary line between two counties, a police court or trial justice of either county, having general jurisdiction of the offence, has jurisdiction of that offence. Comm. 0. Gillon, (2 A.) 84 502. JUBISDICTION, II— JUEY. 895 II. COUBTS OF THE UNITED STATES; EXCLU- SIVE AND CONCURBENT. [See, also, Bank, II ; Bankruptcy, IT, fl) ; II, (3) j Constitutional Law, II, (1); Customs; Internal, revenue ; Patent ; Supreme Court of the United States. A3 to the power of a state legisla- ture to provide for the creating and enforcing in the state courts, liens upon vessels, see Lien, III.] 32. A court of admiralty has no jurisdiction of an action of trespass and false imprisonment, by a seaman against the master of the vessel, for ordering the mate to go on shore and arrest the plaintiff. Adams v. Haffards, (20 P.) 37 127. 33. The jurisdiction of a state court over an action against a ship owner, for damage by fire to goods on his vessel, is not excluded by sub- sequent proceedings by the ship owner in the admiralty courts. Hill Man. Co. ». Providence, etc., S. S. Co., 113 495. 34. A state court has jurisdiction to decree specific performance of a contract to assign a patent. Binney v. Annan, 107 94; Somerby u.Buntin, 118 279. 35. And where questions as to the validity or effect of a patent arise collaterally in a suit in the state court, they must be tried and deter- mined there. Nash v. Lull, 102 60; David v. Park, 103 501. [See, also, Patent.] 36. The state courts cannot entertain replevin against a United States marshal, for property seized by him on process from a United, States court, field otherwise in Howe v. Freeman, (14 G.) 80 566; reversed, and the foregoing ruling estab- lished, Freeman 1>. Howe, 24 How. (U. S.) 450. 37. A statute of a state legislature, restricting state courts from exercising the power to natr uralize foreigners, is not repugnant to the U. S. constitution. Ex parte Stephens, (4 G.) 70 559. 38. A state court may entertain an action against a foreign consul, if he waives his privi- lege, expressly or by not claiming it. . Hall v. Young, (3 P.) 20 80. 39. The state courts have jurisdiction of the offence of having in possession counterfeit coin; and an indictment therefor will oust the jurisdiction of the United States courts to en- tertain an indictment therefor. Comm. o. Fuller, (8 Met.) 49 313. 40. The general jurisdiction of the state courts over the sea, and its coasts and tide water< within the state, remains subject to the special jurisdiction vested in the United States with Tespect thereto, and the power of congress to regulate foreign commerce and inter-state commerce. Comm. ii. Alger, (7 C.) 61 53. 41. But offences committed within territory of the United States, lying within the bound- aries of the Commonwealth, are exclusively cognizable in the United States courts, except where congress has given jurisdiction thereof to the state courts, or where the title of the United States was acquired by consent of the Commonwealth, reserving jurisdiction. Comm. v. Clary, 8 72; Mitchell «. Tibbetts, (17 P.) 34 298. 42. Such a consent, with such a reservation, for the Charlestown navy yard, was made by St. 1800, Ch. 26; and subsequently a statute was passed by the state legislature, affixing a penalty for the transportation of stone, unless weighed and marked; and it was held that the penalty was not incurred by the employment of a vessel to transport stone from Maine to the Charlestown navy yard, which was not weighed and marked. Mitchell v. Tibbetts, (17 P.) 34 298. 43. Persons residing on such lands, where the only reservation is that of jurisdiction in. the state courts, are not entitled to the benefit of the common schools, or the elective franchise; nor are they liable to be assessed or taxed by state authority; nor do they gain a settlement hy such residence. Opin. of the Justices, (1 Met.) 42 580. 44. A ship, lying at anchor, in water 5 fathoms deep, off a Boston wharf, one third of a mile distant therefrom, and about the same distance from the Charlestown navy yard, is within the county of Suffolk; and if she is a merchant ship, owned within the United States, our courts have exclusive jurisdiction of an offence committed on board thereof. Comm. v. Peters, (12 Met.) 53 387. 45. The circuit court of the United States has no jurisdiction of a suit commenced therein, against a citizen of this Commonwealth, by another citizen thereof, for his own benefit, in the name of a citizen of another state, who has no interest in the matter; although a transfer of the cause of action is made to him after suit brought. Vose *>. Morton, (4 C.) 58 37. Jury ; jurors. I. General Rules. (1.) Qualifications; exemptions; selecting; summoning. (2.) Talesmen. H. Objections to Jurors; when and how taken; Challenges, and Disposition thereof. (1.) Challenge generally; when requisite to render objection available. (2.) Challenge to the array. (3.) Challenge to the poll; when sustained, and when not; questions as to juror's compe- tency. (4.) Peremptory challenge. III. Province of the Jury upon Questions of Law in a criminal Cause. rSee, also, the different titles of actions and pro- peedinsri. civil and criminal; also Courts; High- way III, (T) ; Mill and Mill Dam, II ; N ew Trial, III; Questions op Law, etc.; Kailroad, II, (5); Record; Town and City, VI.. For rulings under the constitutional provision securing the- right to a trial by jury, see Constitutional Law, HI (8); under the constitutional provision. 896 JURY, I, (1), (2). that no one shall twice be put in jeopardy for the same offence, see Former Adjudication, I. As tn a jury trial in an equity suit, see Equity Pleading and Practice, II, &. 1'or various rulings relating to the jury and jurors upon the trial, including in- structions of the judge, see Exception ; New Trial, III, (1) : Trial. Eor other rulings relating to the proceedings upon the trial, including the delibera- tions of the jury, see New Trial, III ; Trial, III. As to the verdict of a jury upcm a trial, and all mat- ters connected therewith, see Trial, IV.] I. General Rules. (1.) Qualifications; exemptions; select- ing; summoning. LAs to disqualification, see, also, Judge, arts. 11, 16.] 1. The provisions of G. S., Ch. 132; P. S., Ch. 170, as to selecting and drawing jurors, are constitutional. Comm. v. Brown, 121 69; Comm. «. Walsh, 124 32. 2. If the name, the street, and number, and the occupation of each juror in Suffolk county are written on cards, which are shaken together in a revolving barrel before being drawn, that is a suilicient compliance with P. S., Ch. 170, §31; and the word "liquors," sufficiently designates a person's occupation. Comm. v. Bacon, 135 521. 3. Where it appeared during the trial that the plaintiff's uncle married a juror's aunt, and two of the juror's uncles married two of the plaintiff's aunts, it was held that a ruling that the juror was qualified was correct. Bigelow 1>. Sprague, .140 425. 4. An attorney at law is exempted from jury duty, although retired from practice. In re Swett, (20 P.) 37 1. 5. A member of the legislature is exempted while the legislature is in session. Comm. v. Walton, (17 P.) 34 403. 6. Under the R. S., a person over sixty-five years of age was not absolutely disqualified, but only exempted, at his election, and liable to objection. Munroe v. Brigham, (19 P.) 36 368. 7. A Quaker is neither exempted nor disquali- fied. Comm. v. Smith, 9 107. 8. A minister, of the Methodist Episcopal Church, who belongs to the "local connec- tion," and is liable to be called upon at any time to preach, is a "settled minister of the gospel," within the statute. Comm. v. Buzzell, (16 P.) 33 153. 9. Under the statute of 1807, one who had served as a juror in the U. S. circuit court within three years, was not liable to jury duty in the State courts. In re Swan, 16 220. 10. The service within three years contem- plated by the statute, is a service in court, not upon a sheriff's jury. Brewer v. Tyringham, (14 P.) 31 196. 11. The statute excuses one who has served within three years, although he was drafted as a grand juror more than three years previously. Mc parte, Brown, (8 P.) 25 504. 12. Under St. 1873, Ch. 44; P. S., Ch. 170, § 5, it is not a ground of challenge to the array, that when the challenge was made, more than 30 days had elapsed, since the jurors had begun to serve, if the court had been in session less than 30 days. Provident Sav. Inst. v. Burnham, 128 458. 13. Where a jury list was prepared by the selectmen, and the town voted that it be accepted, and also voted to elect a list by nomi- nation, and some of those thus elected were not on the list, it was held that they were legally elected jurors. Page ». Danvers, (7 Met.) 48 326. 14. A juror was put upon the panel, on his swearing that he was summoned, the constable having omitted his name in the return. In re Patterson, 6 486. See, also, Anon., (1 P.) 18 196. 15. After a verdict of guilty in a capital cause, the constable was allowed to amend his return to the venire for Ihe grand jury, by adding his signature. Comm. v. Parker, (2 P.) 19 550. 16. It is not a ground for setting aside a ver- dict, that a juror was drawn more 30 days before the sitting of the court. Amherst i>. Hadley, (1 P.) 18 38. 17. The fact that the foreman for civil causes, served as the foreman in a capital cause, with- out being duly appointed for that cause, is not ground for setting aside the verdict. Anon., cited by Jackson, J., (1 P.) 18 42. 18. The summoning of more than twelve to attend a3 a sheriff's jury, is not irregular, if twelve only are impanelled. Pitchburg Railroad v. Boston & M. Rail- road, (3 C.) 57 58; Hosmer ». Warner, (15 G.) 81 46. 19. It is not requisite that jurors for land damages, in highway or railroad cases, should be notified by a constable; they may be notified by the officer to whom the warrant for sum- moning them is directed. Wyman ». Lexington, etc.. Railroad, (13 Met.) 54 316. 20. An objection to the regularity of the summoning of sheriff's jurors, cannot be first made after verdict. Comm. v. Norfolk Sessions, 5 435; Tripp v. Bristol Com'rs, (2 A.) 84 556; Fowler «. Middlesex Com'rs, (6 A.) 88 92. 21. So as to the regularity of summoning jurors for a trial, although the party did not know of the irregularity until after the verdict. Page v. Danvers, (7 Met.) 48 326. 22. A member of the common council of Boston is not a competent juror, in a cause to which the city is a party. Boston «. Baldwin, 139 315. (2.) Talesmen. 23. In a capital cause, one called as a tales- man cannot be sworn as a juror, unless the court is satisfied that his name is in the jury box. Comm. v. Knapp, (10 P.) 27 477. JUEY, I, (2); II, (1), (2), (3) 89? 24. Talesmen cannot regularly serve as jurors in any cause, except that tor which they were specially returned; but the objection cannot Dievail after verdict. Howlandfl. Gifford, (IP.) 18 43, note. 25. And if a jury is completed from the by- standers, an objection that either of the tales- men was not qualified to be a juror, must be taken before he is put upon the panel. Comm. v. Gee, (6 0.) 60 174. 26. It is not necessary that the indictment should be read to a talesman, before questioning him as to whether he stands indifferent; it suf- fices that the substance of the indictment and the party's name be stated. Comm. v. Gee, (6 C.) 60 174. II. Objections to Jurors; when and how taken; Challenges and Disposition THEREOF. (1.) Challenge generally; when requi- site to render objection available. 27. Interest of a juror, if known to the coun- sel before the trial, although not known to his client till after verdict, is not a ground for a new trial. Kent v. Charlestown, (2 G.) 68 281. See, also, Fox v. Hazelton, (10 P.) 27 275; Davis v. Allen, (11 P.) 28 466; Orrok v. Comm. Ins. Co., (21 P.) 38 456. 28. Where a party has had an opportunity to challenge, no disqualification or incompetency of a juror entitles him to a new trial, although unknown until after verdict, whether the juror was disqualified by interest or relationship, or, even in a capital case, where the juror was not of the county or vicinage. Woodward v. Dean, 113 297; Rus- sell v. Quinn, 114 103; Smith ». Earle, 118 531; Wassum «. Feeney, 121 93. See, also, Jeffries ». Randall, 14 205; Anon., cited by Jackson, J., (1 P.) 18 42; Cook ». Castner, (9 C.) 63 266; Comm. 1>. Jenkins, (10 G.) 76 485; Woodward v. Dean, 113 297. 29. So, semble, where he is disqualified by alienage, although the fact was not known un- til after verdict. Wassum v. Feeney, 121 93. 30. So where he is an infant, and the fact was not known until after verdict. Wassum ». Feeney, 121 93. 31. So under the R. S., where the juror was over sixty-five years old. Munroe v. Biigham, (19 P.) 36 368. _ 32. The same rules apply as to taking objec- tions to a talesman. See ante, I, (2). 33. In this Commonwealth, a challenge is usually tried by the court. Comm. v. Wa'sh, 124 32. See, also, Comm. v. Knapp, (9 P.) 26 496. 34. An exception does not lie to the decision oi the common pleas, overruling a motion for a new trial, upon an allegation of interest in a juror, or his disability, on the ground of illness. Borden v. Borden, 5 67; Kinnicutt v. Stockwell, (8 C.) 62 73; Hubbard v. Gale, 105 511. 35. Nor to the refusal of the presiding judge to take the case from the jury, or to grant a new trial, for the same cause, unless the refusal in- volved a question of law. Norton i). Wilbur, (5 G.) 717. (2.) Challenge to tbe array, 36. A challenge to the array is to the whole body of the jurors, rt turned from the body of the county, and was allowed at common law, only on account of some partiality or default of the officer who mude the return. Comm. v. Walsh, 124 32. 37. For various instances where a challenge to the array will lie at common law, see Comm. «. Walsh, 124 32. 38. In this Commonwealth, partiality or mis- conduct in the issuing or transmission of the venire by the sheriff or the clerk, might be ground of a challenge to the array; but an ob- jection to the manner of preparing the jury list, or drawing the jurors, or to the return of the constable, in any town or city, affects only the jurors from that town or city, and is ground of challenge to the polls of those jurors, and not to the array. ( omm. s. Walsh, 124 32. See, also, ante, I, (1). (3.) Challenge to tbe poll; when sus- tained and when not ; questions as to juror's competency. 39. In a criminal cause, it is too late to in- quire into the impartiality of a juror after the jury is impanelled; but not where they have been merely sworn. Comm. v. Knapp, (10 P.) 27 477; Comm. v. Twombly, (10 P.) 27 480, note. 40. In a civil or a criminal cause, it rests in the" discretion of the presiding judge to deter- mine the order in which the right to challenge a juror shall be exercised by either party, and whether any, and if so what questions shall be put to him, in addition to those specified in the statute. R. S., Ch. 95, § 27; G. S., Ch. 132, 8 29; P. S., Ch. 170, § : 5. Comm. v. Gee, (6 C.) 60 174; Comm. «. Piper, 120 185. 41. A minute, theoretic, and remote interest, such as a possible participation in a penalty, payable to the juror's town or county, did not disqualify a juror before the statute, and the statute on that subject is constitutional Comm. v. Ryan, 5 90; Comm. v. Worcester, (3 P.) 20 462; Comm. v. Reed, (1 G.) 67 472. See, also, Davis v. Allen, (11 P.) 28 466. 42 But upon a complaint under the bastardy act, the inhabitants of the town interested have Vol. 1—113 898 JUBY, II, (3). a direct interest, and one of them is not a com- petent juror. Hawes v Gustm, (2 A.) 84 402. 43 It is a good ground of challenge that the juror is interested in a similar question to that on trial, although his claim is not against either party Jeffries v. Randall, 14 205; Flagg v. Worcester, (8 C.) 62 69. 44 But where two corporations petition for land damages against the same railroad, it is not an objection to a juror, upon the trial of the petition of one corporation, that he is a stock- holder in the other. Comm. v. Boston & M. Railroad, (3 C.) 57 25. 45. A challenge is well taken, if the same facts, which will warrant a verdict for the plain- tiff, will support an action upon the trustee statute against the defendant, upon a judgment against the plaintiff, which has been assigned to the juror Davis 0. Allen, (11 P.) 28 466. 43. A grand juror is not competent to sit upon the trial of an indictment found by his grand jury. Comm ». Hussey, 13 221. 47. But one who, as a traverse juror, has participated in the conviction of the defendant, upon another trial, for a similar offence, is not rendered incompetent thereby. Comm. v. Hill, (4 A.) 86 591. 48 A member of an association formed to prosecute offences against certain statutes, is not incompetent to sit upon the trial of such a prosecution, if he paid his subscription before this prosecution was commenced. Comm. ■». O'Neil, (6 G.) 72 343. 49 And the refusal of a judge to ask a per- son summoned as a juror, whether he belongs to such an association, does not found a valid exception, if the defendant's counsel disclaims any knowledge or suspicion of such a connec- tion. Comm v- Thrasher, (11 G.) 77 55. 50. But a member of an association, formed to enforce or resist the execution of a particular law, who is liable to contribute to the expenses of prosecutions thereunder, is incompetent. Ccmm. i). Eagan, (4 G.) 70 18. 51 The.presiding judge may exclude a juror, who states that he has formed such an opinion of the unconstitutionality of the statute, under which the prosecution is instituted, that, if per- sisted in, he could not convict. Comm. 0. Austin, (7 G.) 73 51. 52. But one who is opposed to capital punish- ment, is competent in a capital cause, if he be- lieves that he can give an unbiased verdict. Comm. 0. Webster, (5 C.) 59 295. See, however, Comm. 0. Twombly, (10 P.) 27 480, mote. 53. A juror cannot be asked, whether he thinks that the crime charged ought not to be punishable by law. or ought to receive a dif- ferent punishment from that prescribed. Comm. v. Buzzell, (16 P.) 33 153. 54. A juror who states that he has formed and expressed an opinion, that the statute under which the defendant is indicted, is in force, and was constitutionally enacted, is not incompe- tent, on the ground that he does not stand in- different; and he cannot be asked if he can give due weight to the arguments of the defendant's counsel against such opinion. Comm. 0. Abbott, (13 Met.) 54 120. 55. After putting a juror upon his voir dire, a want of impartiality is not to be proved by a witness; aliter, as to a distinct cause of chal- lenge, which could not be known to the juror. Comm. v. Wade, (17 P.) 34 395. 56. The presiding judge may, in his discre- tion, allow a juror, who resides in the same town with the defendant in a criminal c.iuse, to leave the panel before the commencement of the trial, and supply his place with another. Comm. v. Hayden, (4 G.) 70 18. 57. The word "prejudice," in R. S., Ch. 95, § 27; G. S., Ch. 132, § 29; P. S., Ch. 170, §35, seems to imply nearly the same thing as " opinion," and not necessarily ill will against either party. It means, not a vague impression, but such an opinion as would be likely to pre- vent a candid judgment, upon all the evidence. Comm. ». Webster, (5 C.) 59 295; Comm. 0. Thrasher, (11 G.) 77 57. 58. As to the proper form of the question as to opinion, bias, or prejudice, in a capital cause. Comm. v. Webster, (5 C.) 59 295. 59. In a capital cause, a challenge by the government to a juror who had formed an opinion, and stated that he did not know how much he might be influenced thereby, was sustained. Comm. a. Knapp, (9 P.) 26 496. 60. And where a juror said, that from what he had read in the newspapers, his prejudices were against the prisoner, but that he had no definite opinion, and should be governed by the evidence, a challenge by the prisoner in a capital cause was sustained Comm. v. Knapp, (9 P.) 26 496. 61. A juror who is under the impression „nat he has been sworn only upon his voir dire, although he has been actually sworn in chief, should be sworn again in chief. Comm. 0. Knapp, (9 P.) 26 496. 62. Where a prosecution is to be supported in part by testimony of persons of a particular religious faith, a juror cannot be asked whether he thinks that one professing that faith is not to be believed upon oath. Comm. 0. Buzzell, (16 P.) 33 153. 63. Upon an indictment for burning aRoman Catholic convent, which was burned by many persons, it was permitted to ask a juror, whether he had expressed or formed an opinion, as to the general guilt or innocence of all concerned in the act. Comm. 0. Buzzell, (16 P.) 33 153. 64. The defendant, indicted as a common seller of intoxicating liquor, was not allowed to ask the jurors, before they were impanelled, whether they had formed or expressed _ an opinion, as to the credibility of the principal witness for the prosecution, who had testified, and whose credibility had been questioned, in another cause before them; and the defendant cannot prove upon the trial, that they had ex- JURY, II, (4); III— JUSTICE OF THE PEACE. 899 pressed themselves favorably as to the witness's credibility. Comm. v. Porter, (4 G.) 70 433. (4.) Peremptory challenge. 65. Under St. 1862, Ch. 84, § 1; P. S., Ch. 170, § 36, two or more defendants jointly in- dicted, or two or more plaintiffs or defendants in a civil action, are entitled collectively to two peremptory challenges only, not two for each; and it makes no difference that distinct offences are charged in the different counts. Stone v. Segur, (11 A.) 93 568; Comm. v. Walsh, 124 32. [See, also, St. 1875, Ch. 167, § 1.] 66. The right to a peremptory challenge, ■under that statute, must have been exercised, before St. 1873, Ch. 317, § 1; P S., Ch. 170, § 37, before the examination as to interest, bias, Comm. ii. McElhaney, 111 439. 67. As to the construction of St. 1869, Ch. 151, giving the government two peremptory challenges, now merged in P. S., Ch. 170, § 36 Comm. v. Intox. Liq., 107 216. 68. The statute of 1869 was constitutional. Comm. v. Dorsey, 103 412. 69. Before St. 1873, Ch. 317, § 1; P. S., Ch. 170, § 37, it was held that the right to per- emptory challenges under G. S., Ch. 172, § 4, upon an indictment in a capital cause, must be «xercised before the examination as to interest, bias, etc. See, now, P. S., Ch. 214, §6, embodying the provision of theG. S., last cited, with St. 1862, Ch. 84, 8 1, and St. 1875, Ch. 167, § 1. Comm. u. Rogers, (7 Met.) 48 500; Comm. v Webster, (5 C.) 59 295, over- ruling, pro tanto, Comm. n. Knapp, (9 P.) 26 496. 70. Where, after a juror was sworn in a capital cause, and before he was set aside at the instance of the government, others were Challenged peremptorily, the prisoner was per- mitted to waive any of his challenges. Comm. v. Twombly, (10 P.) 27 480, note. III. Province of the Jury, upon Questions of Law in a criminal Cause [See, also, Questions or Law, etc] 71. Under St. 1855, Ch. 152; G. S., Ch. 172, S 15; P. S., Ch. 214, § 17, " it is the duty of the jury to receive the law from the court, and to conform their judgment and decision to such instructions, so far as they understand them, applying the law to the facts found by them; and it is not within their legitimate province to revise, reconsider, or decide contrary to, the opinion or direction of the court in matter of law," Comm. v. Anthes, (12 G.) 78 29; Comm. v. Huber, (12 G.) 78 29; ex- pounding Comm. «. Anthes, (5 G.) 71 185. See, also, Comm. v. Martin, (5 G.) 7 1 303, note; Comm. n. Austin, (7 G.) 73 51; Comm. s.Rock, (10 G.) 76 4. Sem'jle, that a statute, purporting to authorize the jury to disregard the instructions of the court, would be unconstitutional. Comm. v. Anthes, (5 G.) 71 185. 72. That statute does not authorize the jury to disregard any statutory provision applicable to the case before them, and it is proper for the judge so to instruct them. Comm. i). Whalen, (16 G.) 82 25. 73. Most of the rulings upon this subject, in cases arising before the statute of 1855, sub- stantially accord with these principles. Comm. ii. Blanding, (3 P.) 20 304 Comm. b. Knapp, (10 P.) 27 477 Comm. v. White, (10 Met.) 51 14 Comm. n. Porter, (10 Met.) 51 263 Comm. v, Abbott, (13 Met.) 54 120. 74. But in some cases, it was held or intimated that in a criminal cause, the jury were right- fully judges of the law and of the fact. Comm. n. Woicester, (3 P.) 20 462; Comm. v. Knapp, (10 P.) 27 477; Bryant v. Comm. Ins. Co., (13 P.) 30 543; Comm. -o. Kneeland, (20 P.) 37 206. 75. Held, before the statute of 1855, that in a criminal cause, the defendant's counsel is enti- tled to address the jury upon questions of law. Comm. v. Porter, (10 Met.) 51 263. 76. Since the statute of 1855, it was held that it was not error, to refuse to permit the defend- ant's counsel to read to the juiy, the whole of the statute, upon one section of which the prosecution was founded, he having been allowed to read that section, and such other parts as affected it, and to comment to the jury upon the whole statute. Comm. v. Austin, (7 G.) 73 51. Justice of the peace ; trial justice, and his court. I. The Justice and his Office. (1.) Nature of the office; incidental powers; disqualification. (2.) Personal liability; what acts are judicial, what ministerial. II. Teial Justice, and his Court. (1.) The office of trial justice; general attri- butes of his court. (3.) Civil jurisdiction. 1,3.) Removal .of cause concerning real prop- erty. (4.) Practice, pleadings, and proceedings. III. Criminal Cause. IV. Justice's Record in a crvn, or crimi- nal Cause. [See, also, Deposition ; Indictment ; Judge ; Jurisdiction; Police, etc.. Court, as to an ap- peal from a justice of the peace, see Appeal, II, (?).\ 900 JUSTICE OF THE PEACE, I, (1), (2). I. The Justice and his Office. <1.) Nature of the office; Incidental powers ; disqualification. 1. By the coustitution of this Commonwealth, the office of justice of the peace is a judicial office, and must he exercised by the officer in person; and a woman, whether married or un- married, cannot he appointed to such an office. Opin. of the Justices, 107 604. 2. Before the st. of 1863, it was held that a justice might take the acknowledgment of a deed in any county. Learned v. Riley, (14 A.). 96 109. 3. The office of justice of the peace is not in- compatible with that of constable. Comm. v. Kirby, (2 C.) 56 577. 4. If a justice continues to act as such, after accepting an incompatible office, he is a justice de faclo, anl his warrant justifies an officer. Comm. «. Ki by, (2 C.) 56 577. 5. An action pending in the common pleas on appeal from a justice, will be dismissed upon motion, upon proof that the justice was inter- ested. Richardson®. Welcome, (6 C.) 60 331. 6. But judgment will not be arrested for that cause, unless the justice's interest appears of record. Comm. v. Edwards, (12 C.) 66 187. 7. A justice is .not incompetent to try a statu- tory proceeding for the recovery of land, founde I upon a lease, because he drew and wit- nessed the lease, and wrote a notice from the owner to the defendant to quit the premises. Cook v. Berth, 102 372. 8 But a justice is disqualified, who has acted as attorney for the plaintiff, at the same time, and in the same m tter. Richardson®. "Welcome, (6C.) 60 331; McGregor v. Crane, 98 530. 9. The fees, which the law gives for the per- formance of official duties, do not constitute an interest in the proceedings; and a magistrate is not disqualified because his decision may render further official action necessary, for which he will receive lawful fees, although the services are to be rendered and the fees received, in different official capacities. Comm. ®. Keenan, 97 589. 10. So ruled where a trial justice was also clerk of the courts for the county. Comm. v. Keenan, 97 589. 11. Under G. S., Ch. 122, § 13; P. S., Ch. 160, § 13, a justice is not disqualified by being an inhabitant of the town entitled to the penalty Gifford®. White, (IOC.) 64 494; Hall ®. Kent, (11 G.) 77 467. 12. Aliter, before that statute, except where no other justice had jurisdiction. Comm. ®. Ryan, 5 90; Pearce ®. At- wood, 13 324; Hill ». Wells, (6 P.) 23 104; Comm. ®. Emery, (11 C.) 65 406; Comm. ■». Tuttle, (12 CJ 66 502; Comm. >' ®. Reed, (1 G.) 67 472; Comm. ®. McLane, (4 G.) 70 427; Clark®. Lamb, (2 A.) 84 396; Hush v. Sherman, (2 A.) 84 596 13. The statute removing disqualification for such a cause is constitutional. Comm. ». Worcester, (3 P.) 20 462; Comm. ®. Reed, (1 G.) 67 472; Comm. e. McLane, (4 G.) 70 427. 14. Apart from the statute, the most minute interest in the result operates to disqualify the justice. Pearce ®. Atwood, 13 324; Comm. v. McLane, (4 G.J 70 427. -5. A bastardy process will not be dismissed by the common pleas, because the attorney ap- pearing for the complainant is the justice be- fore whom the accusation was made; but he cannot act as attorney or counsel in the case. Reardon ®. Russell, (9 G.) 75 366; Kenney ». Driscoll, (1 A.) 83 210. [For other rulings as to disqualification, Bee Judge. As to a justice's power to punish for contempt, see Contempt.] (2.) Personal liability: what acts are judicial: what ministerial. 16. Where a justice neglected to return a re- cognizance taken by him, until the second day of the term, the court fined him. Ex parte Neal, 14 205. 17. A justice is liable to an action in favor of a defendant, arrested under process issued by him, where he was notified, and voluntarily or negligently absented himself at the time speci- fied therein. Shaw ®. Reed, 16 450. See, how- ever, Van Kuran ®. May, (7 A.) 89 466. 18. An action will not lie against a justice, for any act done by him in the lawful exercise of his judicial functions, within the, scope of hia jurisdiction, although it was done wilfully and maliciously. Pratt v. Gardner, (2 C.) 56 63; Chickering ®. Robinson, (3 C.) 57 543; Piper ®. Pearson, (2 G.) 68 120; Fisher ®. Deans, 107 118. 19. Thus he is not liable for taking a recog- nizance in a form not authorized by law, and so invalid. Chickering v. Robinson, (3 C.) 57 543; Way v. Townsend, (4 A.) 86 114. 20. So where he issued a writ in favor of a third person upon a false claim, and secreted or destroyed it after service, and refused to enter it or to allow the defendant his costs, the remedy in such a case is against the plaintiff in the writ. Raymond v. Bolles, (11 C.) 65 315. 21. But he is personally lijble to the person aggrieved, in damages, for acting in a cause of which he has no jurisdiction, or for exceeding his jurisdiction, with knowledge or the means of knowledge of the facts, upon which the de- fect of jurisdiction depends. Piper ®. Pearson, (2 G.) 68 120; Clarke v. May, (2 G.) 68 410; Sullivan ®. Jones, (2 Q.) 68 570. 22. Or under an unconstitutional statute. Kelly v. Bemis, (4 G.) 70 83; Barker v. Stetson, (7 G.) 73 53. JUSTICE OF THE PEACE, I, (2); II, (1). 901 23. In such a case the complainant is not liable. Barker ». Stetson, (7 G.) 73 53. 24. The exemption of a justice from personal liability for his official acts, does not extend to illegal acts, done in the exercise of his minis- terial powers and duties; and issuing an execu- tion, or other warrant lor that purpose, is a ministerial and not a judicial act, for which, if illegal, he is liable in damages. Fisher b. Deans, 107 118. See, also, Albee v. Ward, 8 79. 25. A judgment creditor may maintain an action against the justice, for issuing an execu- tion void upon its lace. Noxon v. Hill, (2 A.) 84 215. 26. He is liable to a defendant arrested under an execution issued by him, before the time, ■when he can lawfully issue execution. Briggs «. Wardwell, lO 356. 27. Or where, after a defendant, convicted of being a common drunkard, has taken an appeal, he issues a general commitment, instead of a commitment until the defendant recognizes with sureties. Kendall ». Powers, (4 Met.) 45 553. 28. So where, having power to cause a prisoner to recognize for appearance only, he also requires him to recognize for good behavior. Knowles v. Davis, (2 A.) 84 61. 29. So where, after convicting a person of assault and battery, he allows him to go at large, and then issues a mittimus, without a previous capias to show cause. Doggett v. Cook, (11 C.) 65 262; Fisher v. Deans, 107 118. 30. A certificate of the entry of a mortgagee for foreclosure, is a ministerial act, and if sworn to before himself, as justice, it is void. Juddo. Tryon, 131 345. 31. The power, conferred by statute on a justice of the peace, to ( rder the removal of an obstruction upon a town way or a private way, not judicial, and his order is not judicial pro- cess; and any acts, done by a deputy sheriff in theexecution thereof, are his personal acts, for which the sheriff is not responsible. Davis v. Smith, 130 113. 32. A justice is not liable to an action for not sending up the recognizance of the appellant in a civil cause, if the same is not demanded from him, and his fees tendered. Jones v. Werden, (12 C.) 66 133. 33. A trial justice is not liable to an action for rendering judgment for costs in violation of P. S., Ch. 183, § 88, or for issuing an exe- cution upon such a judgment, it not having been appealed from. White s. Morse, 139 162. n. Teial Justice, and his Court. (1.) The office of trial justice; general attributes of bis court. .34- A signature of an officer to a jurat as trial justice involves a signature as justice of the peace, and no separate, designation of the inferior office is necessary. Comm. v. Mosher, 134 226. 35. Since St. 1877, Ch. 211, § 1; p. S. Ch 155, § 6, took effect, the fact that the justice of the peace, issuing the warrant in it criminal cause, holds the additional office of trial justice, or clerk, etc., must appear upon the face of the papers; and if it does not to appear, this is a jurisdictional defect, which may be raised by motion in arrest of judgment. Comm. v. Fay, 126 235. 36. St. 1877,. Ch. 210, § 4, giving to police and district courts jurisdiction in lort, where the damages demanded exceed $20 and do not exceed $300, was not affected by St. 1877, Ch. 211, § 3, giving trial justices exclusive juris- diction in tort, where the damages demanded do not exceed $300. Bossidy v. Branniff , 1 35 290. 37. A change of domicil of a trial justice, which disqua.ifies him under the statute, ter- minates the proceedings before him. Godfrey v. Muiiyan, 120 240. 38. A warrant under the statute of 1850, issued by a justice of the peace, and command- ing the officer to arrest the party, and bring him before A, "or some other justice of the peace," of the county, A being a trial justice, authorizes the officer to bring him before A only, and not before any other magistrate, although he is also a trial justice and A is absent. Stetson 11. Packer, (7 C.) 61 562. 39. A justice of the peace exercises his juris- diction mainly according to the course of the common law; his court is, for many purposes, a court of recorj, to which a writ of error will lie. Hendrick v. Whittemore, 105 23 See, also, Martin v. Comm , 1 347; Clap ». Clap, 4 520, Valier v. Hart, 11 300; Arnold v. Tourtellot, (13 P.) 30 172; Gay «. Richardson, (18 P ) 35 417; Thayer 11. Comm.. (12 Met.) 53 9. 40. His court is not a court of record, within the provision relating to the limitation of actions upon judgments of courts of record. Smith v. Morrison, (22 P ) 39 430; Mowry ». Cheesman, (6 G.) 72 515. 41. Probably the result, from an examination of all the statutes, is that justices' courts will be regarded for some purposes as courts of record, but not for all purposes. Ex parte Gladhill, (8 Met.) 49 168; Mowry t> Cheesman, (6 G.) 72 515. 42. The rule which makes the judgment of a court of record binding upon the pai ties, until reversed by proper proceedings, although juris- diction of the person was not properly ob- tained, is applicable as well to a judgment of a court of a justice of the peace, as to one ot a court of general jurisdiction. Hendrick v. Whittemore, 105 23; overruling Eossiter v. Peck, (3 G.) 69 538; and explaining Piper v.' Pearson, (2 G.) 68 120. See, also, Hawes v. Hatha- way, 14 233; Crockett ». Drew, (5 G.) 71 399. [See, also, post, TV; Estoppel, II, (1); Fokmer Adjudication.] 902 JUSTICE OF THE PEACE, II, (2), (3), (4). (3.) Civil jurisdiction. 43. The power of a court of general juris- diction to render a judgment, will be presumed, until the contrary is shown; but the judgment of ,-i court of inferior and limited or special ju- risdiction, must affirmatively appear to be within its jurisdiction; but this rule applies only to the subject matter. Hendrick v. Whittemore, 105 23. See also Bridge «. Ford, 4 641; Piper 11. Pearson, (2 G.) 68 120; Rossiter v. Peck, (3 G.) 69 538; the latter case overruled pro tanto, in 105 23. 44. A defendant who has voluntarily appeared and submitted to the jurisdiction of a justice, cannot object to the jurisdiction upon appeal, on the ground that when the writ was served he resided in another county. Cahocp v. Harlow, (7 A.) 89 151. 45. Where a penalty is given by statute to the party suing therefor, and the amount thereof exceeds a justice's statutory jurisdiction, the plaintiff may bring the action before a justice, reducing his demand accordingly. Carroll v. Richardson, 9 329. 46. Where the declaration contains counts for causes of action, of some of which the justice has, and of others he has not, jurisdiction, the action cannot be dismissed upon appeal, if the plaintiff recovered judgment on the former, and the defendant on the latter counts. Harris v. Doggett, (16 G.) 82 118. 47. It is immaterial in what county the cause of action arose, although it is for injuries to real property, if the damages demanded do not exceed the justice's jurisdiction. Sumner v. Pinegan, 15 280; Pitman «. Flint, (10 P.) 27 504. 48. Semble, that the writ of a justice, even for the purpose of an attachment, cannot run into another county, in any case where he has not, when the writ is issued, or when it is served, a right to take jurisdiction of the de- fendant's person. Cahoon v. Harlow, (7 A.) • 89 151. _ 49. A statute, extending a justice's jurisdic- tion to $100, and requiring security for an appeal, was constitutional. Hapgood v. Doherty, (8 G.) 74 373. 50. Under the,R. S. , as a justice had no juris- diction of replevin, except for beasts distrained or impounded, so the common pleas had no other appellate jurisdiction in replevin. Jordan «. Dennis, (7 Met.) 48 590. See, also, King «. Dewey, (11 C.) 65 218. (3.) Removal of cause concerning real property. 81. The word "action" in G. S., Ch. 120 § 13: P. S., Ch. 155, §24, refers only to the actions named in the preceding sections of the same chapter, and accordingly does not include a proceeding to enforce a mechanic's lien, which cannot be removed to the superior court. Dion ». Powers, 128 192. 52. So held also with respect to a writ of scire facias, against one charged as trustee, in the municipal court of Boston. Gray v. Thrasher, 104 373. 53. Under the R. S., it was held that the filing of a plea of title took away the justice's jurisdiction; and pleading over and joining issue upon another question did not restore it. Kelley v. Taylor, (17 P.; 34 218. 54. But it was subsequently held that the justice retained power to act upon a motion to waive or amend the plea, or to amend the declaration, or new assign; and that if the pleadings, as finally settled by the parties, did not present a question of title, he should pro- ceed with the cause. Magoun v. Lapham, (19 P.) 36 419; Wesson v. Joslin, (19 P.) 36 422, note. 55. Upon the questions whether the record sufficiently showed that title came in question, and the word "appealed" sufficiently indicated an election to remove the cause to the com- mon pleas, see Lawrences. Souther, (8 Met.) 49 166. 56. After the cause is removed, the plaintiff may have leave to amend his declaration, by alleging other torts in the same close, or describ- ing the close more particularly. Cuminge v. Rawson, 7 440. 57. In an action of trespass, the question whether a lease, under which the plaintiff claims to be in possession, has been terminated, does not involve the title to real property, within the meaning of the pr vision for removal. Martin v. Tobin, 123 85. 58. Nor, in trespass quare clausum, does a plea in bar that the defendant entered his own adjoining close, and there erected a fence, etc. Wood ». Prescott, 2 174. 59. But in such an action, a plea that the locus in quo is a public highway, and the plaintiff wrongfully incumbered it with a gate, etc., presents an issue involving title to real property. Spear v. Bicknell, 5 125. See, also, Strout v. Berry, 7 385. 60. So does a declaration on a covenant for title, assigning as a breach that the defendant was not seized, or had no right to convey. Bickford «. Page, 2 462, note. 61. Held that an easement in the land of another was within St. 1783, Ch. 42. Spear v. Bicknell, 5 125; Strout «. Berry, 7 385. 62. In order to entitle himself to a removal, it is not necessary that the party should formally request that the cause be removed; it suffices that he objects to the jurisdiction, and recog- nizes to enter the action and does enter it, in the superior court. If he had not recognized, it would have been the duty of the court below to proceed. Leary v. Reagan, 115 558. (4.) Practice, pleadings, and proceed* Ings. > 63. The proper time for the entry of an ac- tion in a justice's court is within the hour JUSTICE OF THE PEACE, II, (4); III. 903 named in the writ; if not then entered the de- fendant may refuse to appear, or may appear specially for a motion to dismiss. Blanchard ®. Walker, (4 C.) 58 455. 64. Before St. 1863, Ch. 20; P. S., Cli. 167, §§ 7 and 8, it was not necessary, notwithstand- ing the practice act, to insert the declaration in the writ before service, in an action in a justice's court. Keenan v. Knight, (9 A.) 91 257. 65. And under that statute, the declaration in a justice's court cannot he filed after the entry of the writ. Keenan v. Knight, (9 A.) 91 257. 66. If, in the superior court, the declaration is inserted in the writ, or filed with it at the en- try, no addition to it can afterwards be made, except by consent, or by leave of the court. Jones v. Ilsley, (1 A.) 83 273. See, also, Clark o. Ward, (7 G.) 73 409. 67. But the defendant, after answering to the merits, cannot afterwards object that no declara- tion was inserted in the writ or filed, on or be- fore the return day. Clark v. Montague, (1 G.) 67 446 68. A justice of the peace may sign and seal a writ, before or after it is filled up; and he may alter the return day, while it is in the hands of the officer for service. Lapham v. Locke, 103 555. 69. A writ, other than a trustee process, can- not be served by summoning the defendant in any county, other than that in which it is returnable. Pitman v. Tremont Nail Co., (2 A.) 84 531. See, however, Cahoon v. Harlow, (7 A.) 89 151; cited, ante, art. 44. 70. If the defendant is absent and does not return until after the judgment, a judgment taken without continuing the action or giving further notice, as the statute requiies, will be reversed on a writ of error. Smith v. Paige, (4 A.) 86 94.' 71. It was held, before the practice act, that in trespass quare clausum, the defendant could not, under the general issue, give evidence that the plaintiff was not in possession. Lynch ». Eosseter, (6 P.) 23 419. 72. Nor was it necessary in such an action, under the general issue, for the plaintiff to prove his exclusive possession. Stone v. Hubbard, (17 P.) 34 217. 73. Nor could an easement be proved under the general issue. Strout ». Berry, 7 385; Waters «. Lilley, (4 P.) 21 148; Haggles v. Lesure, (24 P.) 41 187. 74. But in an action for trespass of the de- fendant's cattle, a plea of not guilty rendered any matter admissible, which would be admis- sible under a special plea. Wilbur o. Taber, (9 G.) 75 361. See, also, Blood v. Kemp, (4 P.) 21 169. 75. So as to the statute of limitations, or any otter matter in bar, under the general issue in "'■"™psit. - Williams v. Boot, 14 273. 76. But the general issue in replevin was not within St. 1783, Ch. 42, § 7. Holmes v. Wood, 6 1. 77. Under St. 1832, Ch. 314, if the ad dam- num exceeded $20, either party was entitled to a jury, although the account sued was only $17. Trees v. Rushworth. (9 G.) 75 47 III. Criminal Cause. 78. The jurisdiction of a justice, designated under St. 1879, Ch. 254, § 1; P. S., Ch. 155, § 4, to issue warrants in criminal causes, is not limited to complaints for offences committed within his town. Comm. v. Peto, 136 155. 79. If the papers fairly disclose the official character and authority, by virtue of which such a justice assumes to act, his jurisdiction sufficiently appears upon the face thereof. Comm. «. Peto, 136 155. See, also, Comm. v. Mosher, 134 226. 80. A warrant, issued by a trial justice to an officer, directing him to "make due return thereof," does not authorize him to return it to another trial justice. Comm. s. Intox. Liq., 130 29. See, ■ also, Stetson v. Packer, (7 C.) 61 562, cited, ante, art. 38. 81. The warrant of an inferior magistrate to arrest a person is void, unless the authority to issue it appears upon the face of the instru- ment. Comm. v. Fay, 126 235. 82. And where, upon the face of the com- plaint and warrant, the magistrate is described only as "justice of the peace," the court will not take judicial notice that he is also clerk of the district court, and therefore authorized to act under St. 1877, Ch. 211, although the record is certified bv him as " clerk." Comm. v. Pay, 126 235. 83. A trial justice has jurisdiction, where the penalty does not exceed $50, although a defend- ant convicted is also required to pay the costs and recognize for his good behavior. Comm. v. Burns, (14 G.) 80 35. See, also, Wilde 1>. Comm., (2 Met.) 43 408. 84. But where the offence is punishable by fine of not less than $50, he can only bind over the offender for trial in the superior court. Comm. ii. Woolford, 108 483. 85. It is no objection to the jurisdiction to proceed by complaint and examination, for the purpose of binding over to a higher court, for an offence punishable by indictment, that the fine may be sued for and recovered by action in the name of the Commonwealth, or by infor- mation qui tarn. Knowles v. Davis, (2 A.) 84 61. Comm. v. Cheney, 6 347, overruled pro tanto. 86. A statute, conferring upon the police court of a city, the same jurisdiction in criminal causes, therein as justices of the peace possess, does not take away the jurisdiction of a justice 904 JUSTICE OF THE PEACE, III; IV. of a town within the county, of an offence com- mitted within the city. Comm. v. Pindar, (11 Met.) 52 539. See, also, Comm. «. Brady, (7 G.) 73 320; Comm. v. Roark, (8 C.) 62 210. 87. A statute, purporting to give to inferior tribunals jurisdiction of offences punishable by infamous punishment, is unconstitutional. Jones ii. Robbins, (8 G.) 74 329; In, re Nolan, 122 330; Comm. n. Hor- regan, 127 450. 88. The statute, giving a justice jurisdiction of larceny to the amount of $15, does not take away the power of the courts of record to in- flict, for a larceny to that amount, a severer penalty than a justice can i flict. Comm. v. McKenney, (9 G.) 75 114. 89. A trial justice now has jurisdiction of the offence of keeping a house of ill fame. Comm. v. Ring, 111 427. 90. A justice may bind over for trial in the common p'eas (superior court), a person charged with an offence, of which he has jurisdiction concurrent with that court; and his record, showing that after a hearing, etc., the court determined that the defendant was guilty, and that he should, therefore, recognize for such appearance, is not a bar to an indictment for the offence. Comm. v. Harris, (8 G.) 74 470; Comm. v. Boyle, (14 G.) 80 3; Comm. v. Golding, (14 G.) 80 49; Comm. v. Many, (14, G.) 80 82. 91. After a justice has ordered a prisoner to Tecognize for his appearance in the higher court, he may lawfully reconsider his determination, while the proceedings remain open, and pro- ceed to hear the cause, and punish the offence. Comm. d. Goddard, 13 455. 92. A justice has no authority to take the note of a defendant convicted by him, for the fine and costs imposed by him. Kingsbury n. Ellis, (4 C.) 58 578. See, also, Bills v. Comstock, (12 Met.) 53 468. 93. The question whether an offence is beyond the jurisdiction of the justice, by reason of its being " of a high and aggravated nature," is open for examination in a subsequent prose- cution before a higher tribunal for the same offence. Comm. v. Cunningham, 13 245; Comm. v. Goddard, 13 455. 94. A warrant against a person charged with a crime may be lawfully issued and served on Sunday. Pearce ». Atwood, 13 324. 95. As to the direction and service of war- rants, under the former statutes, now obsolete. Comm. v. Poster, 1 488; Comm. v. "Ward, 4 497. 96. As to issuing a warrant leturnable before another justice or court, under the former statutes. Comm. v. "Wilcox, (1 C.) 55 503; Comm. ■B.Brady, (7 G.) 73 320; Comm. v. O'Connell, (8 G.) 74 464. 97. As to the limitation of the authority of a justice to require a recognizance to keep the peace, under former statutes, now obsolete. Comm. v. Ward, 4 497; Comm. «. Morey, 8 78; Comm. v. McNeill, (19 P.) 36 127. 98. As to the power of a justice to take recog- nizances for various offences, under statutes now obsolete. Vose v. Deane, 7 280; Comm. «. Loveridge, 11 337; Dow v. Prescott, 12 419; Comm. v. Otis, 16 198; Comm. «. Canada, (13 P.) 30 86. 99. For discussions of, and rulings upon, the effect of certain English and colonial statutes, and of St. 1783, Ch. 51, upon the jurisdiction of a justice of the peace in a criminal cause, see Comm. v. Leach, 1 59; Comm. v. Foster, 1 488; Comm. v. Cheney, 6 347; Vose v. Deane, 7 280; Comm. v. Loveridge, 11 337; Comm. n. Otis, 16 198; Harrington «. Brown, (7 P.) 24 232; Comm. n. McNeill, (19 P.) 36 127; Knowles ». Davis, (2 A.) 84 61. rv. Justice's Rbcoed in a civil or criminal Cause. [See, also, ante, II, (1).] 100. A record must be precise and clear, and must contain proof of every essential jurisdic- tional fact. It cannot exist partly in writing and partly in parol. Sayles v. Briggs, (4 Met.) 45 421; Moore v. Lyman, (13 G.) 79 394; Piper v. Pearson, (2 G.) 68 120. 101. It is no objection to the record of pro- ceedings, which the law requires to be taken before a justice of the peace, that they purport to be taken before a trial justice; but if they are required to be taken before a trial justice, and the record is signed by the magistrate as justice of the peace only, it is bad, although he was actually a trial justice. Maloney «. Piper, 105 233; Nash v. Coffey, 105 341. 102. After a conviction upon appeal, it is not open to the defendant to object that the magis- trate's record set forth the decision to be, "that he guilty" of the offence. Comm. ■». Hardiman, (7 A.) 89 583. 103. The record of a justice in a civil or a criminal cause, if in due form, and showing jurisdiction, is conclusive in his favor or against him, in an action even for fraud and corruption. Sayles «. Briggs, (4 Met.) 45 421; Kendall v. Powers, (4 Met.) 45 553; Pratt v. Gardner, (2 C.) 56 63; "Wells v. Stevens, (2 G.) 68 115; Moore «. Lyman, (13 G.) 79 394; Kelley v. Dresser, (11 A.) 93 31. See, also, Betts v. Bag- ley, (12 P.) 29 572. 104. But not in his favor, if want of jurisdic- tion appears on the face thereof. Piper ». Pearson, (2 G.) 68 120. 105. As to the sufficiency of the record of a judgment upon confession, before a justice of the peace of Vermont, under the statutes of that state, see Henry v. Estes, 127 474. 106. A lost record may be proved by oral testimony, and the minutes may be introduced. KEEPER, ETC.— LACHES. 905 where the record was not drawn out in ex- Davidson v. Slocomb, (18 P.) 35 Sayles v. Briggs, (4 Met.) 45 McGrath i>. Seagrave, (2 A.) 84 See, also, Park v. Darling, (4 C.) 58 Justifiable homicide. [See Homicide I.] 464; 421; 443. 197. Juvenile offenders. [See, also, Conviction and Sentence, arts. 60 to 62.] 1. St. 1870, Ch. 359, § 11, St. 1872, Ch. 358; St. 1874, Ch. 258, § 1, relating to juvenile offenders were unconstitutional, so far as they conferred jurisdiction upon inferior courts to inflict infamous punishment. In re Nolan, 122 330; Comm. ». Horregan, 127 450. K. Keeper of attached property. [See Attachment, II, (3)J Kerosene. [See Illuminating Fluid Kidnapping. 1. Upon an indictment for an attempt to kidnap A, a precept from the governor of this Commonwealth, authorizing the defendant to "take and to receive into his custody " A, as a fugitive from justice from another state, and reciting an application by the governor of that state, and the other facts necessary, to give him authority to issue the precept, authorizes the arrest, and is prima facie evidence of the truth of the recitals. Comm. v. Hall, (9 a.) 75 262. 2. Upon an indictment under G. S., Ch. 160, § 30; P. S., Ch. 202, § 30, the intent to take out of the Commonwealth must be proved as charged; and it is not enough to show that the defendants were employed by one who had such an intent, to seize and to deliver to him the person seized, where they were ignorant of his intent. Comm. ». Nickerson, (5 A.) 87 518. 3. But in this case, it was held that where the indictment contained a count for assault and battery, that count was proved. Comm. «. Nickerson, (5 A.) 87 518. [See, also, this case, under Parent and Child.] 4. For a ruling upon an indictment for an attempt to kidnap, by the arrest here, under di- rection of the authorities of Rhode Island, of insurgent citizens of that state, who had fled to this Commonwealth, see Comm. ii. Blodgett, (12 Met.) 53 56, cited Constitutional Law, art. 79, Kin, next of; kindred. [See Descent and Distribution; Devise and Bequest, II, (3); II, (4); Executor and Adminis- trator, VII, (2); Heirs, etc; Poor, I, (2).] Laches. [As to the effect of laches upon a bill in equity for fpeciflc performance, see Specific Performance, . (3).] 1. The general rule in equity is that the court will not give relief, if the party has been guilty of unreasonable delay; especially where, ' being cognizant of his .rights, he suffers others to incur expenses or enter into engagements of a burdensome character. Tash «. Adams, (10 C.) 64 252; Royal Bk. of Liverpool v. Grand J. Rail- road, 125 490. See, also, Stockbridge Iron Co. v. Hudson Iron Co., 107 290. 2. Equity regards diligence as one of its most important elements, and it discounten- ances laches as inequitable. Unreasonable delay is a bar; especially where the parties can- not be restored to their original position, and injustice may be done. Peabody ». Flint, (6 A.) 88 52; Royal Bk. of Liverpool «. Grand J. R. R. 125 490. ,, "• Even where a fraud has been committed, me right to rescind remains only for a reason- awe time after the discovery thereof. Vol. 1—114: Evans ». Bacon, 99 Foster, 117 365. 213; Learned v. 4. "What constitutes laches depends upon the particular circumstances of the case; but where a trustee purchases the trust property for his own benefit, the word is rarely used in reference to proceedings against him. Morse v. Hill, 136 60. 5. Where, in such a case, although testimony had been lost and other parties had became bankrupt, during the delay, and before notice that the title of the trustee would be contested but it did not appear that any thing had been done by the trustee to his prejudice since he had notice, in consequence of a belief that the intention to contest his title had been abandoned by the cestui que trust; or that he had ever made inquiry of them, whether they had changed their intention; and the delay was far within the statute of limitations as to real property; it was held that there were no laches to prevent the plaintiffs from maintaining their bill. Morse «. Hill, 136 60. See, also, Hayward •. Ellis, (13 P.) 30 272 Litchfield v. Cudworth, (15 P) 32 23 Yeackel v. Litchfield, (13 A.) 95 417 906 LACHES— LANDLORD, ETC. Clark v. Blackington, 110 369; Learn- ed v. Foster, 117 365. 6. Upon a writ of entry to foreclose a mort- gage, equitable rules are applied, and after a long lapse of years, during which the parties have treated the mortgage as a debt against the plaintiff only, he cannot take an assignment of it, and foreclose it by writ of entry. Pike v. Goodnow, (12 A.) 94 472. 7. Where there is a vested right of property, such as a charge upon land created by a will, a delay of three years in bringing a bill to enforce it, is not such laches as will defeat the bill, especially where the defendants have not made any change in their position, which they had any right to attribute to the plaintiff's quies- C6UC6 ' ' Nudd v. Powers, 136 273. 8. For additional expositions of the forego- ing rules, and applications thereof to particular cases in equity, see ' Upon a bill to account by an executor of a deceased partner, against the executor of the surviving partner, after great delay, loss of papers by fire, etc. Codman v. Rogers, (10 P.) 27 112 Upon a bill to enforce land damages awarded to the plaintiff, against a corporation, where va- rious other rights had intervened during a long delay. Forward v. Hampshire, etc., Canal, (22 P.) 39 462. Against devisees and legatees of a surety on an administration bond, whose estate had been settled, and there had been great delay, although no other intervening rights had accrued. Phillips v. Rogers, (12 Met.) 53 405. Where there was an unexplained delay of four years, after the discovery of new evidence, by reason of which a bill was filed to set aside an award. Plymouth B.Russell Mills, (7 A.) 89 438. Upon a bill to set aside a decree as obtained by fraud, where the plaintiff had delayed more than two years, after the discovery of the fraud. Evans v. Bacon, 99 213. Defence of laches, not sustained upon a bill to reform a deed, where both parties had ac- quiesced, for many years, in the construction claimed. Stockbridge Iron Co. v. Hudson Iron Co., 107 290. So where a bill to enforce the liability of offi- cers of a corpora ion, was filed four years and a half after the return of execution against the corporation. Pope v. Salamanca Oil Co., 115 286. So where a bill to set aside a conveyance of shares in a corporation by a married woman, was filed 18 months after she was informed of her rights, no new title having accrued since such information. Merriam «. Boston, C. & F. Railroad, 117 241. Defence of laches sustained to a bill against certain corporations and others, to apply a sum of money in possession of one corporation, alleged to belong to another, on account of fraud by the other defendants, in payment of bonds. Royal Bk. of Liverpool *>. Grand J. Rail- road, 125 490. 9 Where the defence of laches was inter, posed, but the case was reserved for the opin- ion of the whole court on other grounds, after a decision upon which there was a reference to a master to take an account; and the objection of laches was not renewed before him; it was held, that after the return of his report, and the lapse of eight years .since the reference, the ob- jection of laches could not be renewed upon the final hearing on the report. Pingree «. Coffin, (12 G.) 78 288. -0. In equity, laches cannot be imputed to an infant plaintiff. Burns ». Thayer, 115 89. 11. Stale demands are not favored in equity. Andrews v. Sparhawk, (13 P.) 30 393. 12. The rule at law is, that a party who would rescind a contract on the ground of fraud, must exercise his election within a rea- sonable time after the discovery of the fraud. Nealon v. Henry, 131 153. See, also, Holbrook v. Burt, (22 P.) 39 546; Bassett v. Brown, 105 551 ; and Con- tract, VI, (1); Fraud, I; H; V. Lading, bill of. ee Bill of Lading.] Lake. [See Boundary Line, II, (4); Pish, etc; Ice; Pond ; Water Course.] Land. Us to what passes as appurtenant to land, and what land is included in an instrument under which title is acquired, see Boundary Line; Deed, III, (5); III, (H) ; Devtse and Bequest, II, (1); III; Easement, II, (3); Fixture; Will. As to the rights and lia- bilities of land owners, see Boundary Line ; Base- ment, IV ; Highway; Ice ; Landlord and Tenant; Land Owner; Negligence; Nuisance; Keal Property; Town *nd City ; Water Course.] 1. For the legal definition of land, see First Sudbury Par. v. Jones, (8 C.) 62 184; Leavitt v. Cambridge, 120 157; cited in Fixture, art. 2; also, Coombs v. An- derson, 138 376; cited in Estate Tail, art. 14. Land damages. [See Eminent Domain ; Highway. IV, (4); Bail- road, II, (7); Town and City, VI. J Landlord and tenant ; lease. I. The Relation; how created. tT. Different Kinds of Tenancy. (1.) Tenant at will. (2.) Tenant at sufferance. (3.) Tenant under a lease. {See post, Y, VI.) LANDLOED, ETC., I. 907 HI. Notice to quit. (1.) When necessary, and when not. (2.) Sufficiency. (3.) How rendered nugatory. IV. Eights, Duties, and Liabilities, Pro- ' CEEDING PROM THE RELATION. (1.) Defects in, or improper use of, the prop- erty. (2.) Repairs; injury; destruction. (3.) Tenant estopped lo deny landlord's title. (4.) Crops; emblements; fixtures; appurte- nances. (5 ) Other rights, duties, and liabilities. V. Lease; Validity, Effect; Duration. (1.) Nature; validity; what passes. (2.) Assignment by lessee; sublease; cove- nants running with land. (3.) Assignment by lessor; attornment. (4.) Surrender; forfeiture. (5.) Eviction. (6.) Other modes of termination. VI. Lease; certain special Stipulations. (1.) Election to renew. (2.) Payment of taxes and assessments. (3.) Repairs; rebuilding; redelivery in good condition. (4.) Quiet enjoyment. (5.) Alterations and additions. (6.) Underletting; assignment. (7.) Abatement of rent. (8.) Other stipulations. VII. Landlord's Remedies. (1.) Action for rent. (2.) Action for use and occupation. (3.) Ejectment; re-entry; writ of entry. (4.) Statutory action to recover possession. |As to the interests of the parties in the crops of laud let on shares, see Joint Tenants, arts. 92 to 96. Aa to the law of fixtures between landlord and ten- am,, see Fixture, II. As to leases of personal prop- erty, tee Contract, IV, (7); Sale, I, ('); I, (2). As to damages for taking leased property for a way, see Highway, IV, (1); IV, («. For other rulings upon questions relating to or connected with this subject, see Condition ; Covenant ; Deed ; Fire; ice; Intoxicating Liquors; Joint Tenants; land Owner; Mine; Nuisance; Real Property; statute of Frauds; Tenant eor Life; Town and City. ] I. Tee Relation; how created. 1. The relation of landlord and tenant can only be created by an express or implied agree- ment between the parties, or those in privity with them.in the nature of a demise. Fletcher v. McParlane, 12 46; Cod- man v. Jenkins, 14 93; Allen v. Thay- er, 17 299. Boston v. Binney, (11 P.) 28 1; Patch fl.Loring, (17P.) 34 336 Gould v. Thompson, (4 Met.) 45 324 Kittredge v. Peaslee, (3 A.) 85 235, Merrill v. Bullock, 105 486; Central Mills v. Hart, 124 123; Leonard v. Kingman, 136 123. 2. The contract need not be technically formal, but there must be at least a permissive occupation by the tenant. Central Mills v. Hart, 124 123. 3. And the mere use of the land by the de- fendant, although by permission of the plain- tiff, in the absence of any such legal or con- structive possession of the premises, as is im- plied in the word demise, will not sustain an action for use and occupation. Central Mills v. Hart, 124 123. See, also, Hamblett v. Bennett, (6 A.) 88 140. 4. A trespass can never raise the relation of landlord and tenant. Central Mills «. Hart, 124 123. 5. A mere lodger in the house of another is not a tenant; and an oral contract to provide" a man and his family for six months with board and three specified rooms, is not a contract re- lating to real property, and is, therefore, not affected by the statute of frauds. White i). Maynard, 111 250. 6. But a floor, or a series of rooms, or even a single room, may be let for lodgings, so separated from the rest of the house as to be- come the tenement of the lessee. Swain t). Mizner, (8G.) 74 182; White v. Maynard, 111 250; Porter v. Merrill, 124 534. See, also, Shumway v. Col- lins, (6 G.) 72 227. 7. And where such an agreement is made, the fact that, besides leasing the rooms, the owner agrees to furnish a private table and other ac- commodations, and imposes certain restrictions upon the mode of occupation, does not take away its character as a lease. Porter v. Merrill, 124 534. 8. The question whether an instrument is a lease, or an agreement for a lease, depends upon the intention of the parties, to be collected from the whole instrument; and the words " agree to let " are not conclusive. Bacon v. Bowdoin, (22 P.) 39 401; Kabley «. Worcester G. L. Co., 102 392. 9. An instrument whereby A lets to B real property for a specified rent, commencing two months thereafter, and B also agrees to pay in addition ten per cent, upon certain specified improvements to be made by A, is a lease for a term to commence in future, and not an agree- ment for a lease. Weed v. Crocker, (13 G.) 79 219. 10. For other cases, where it was held that a particular instrument was a present demise, for a term to commence infuturo, see Fiske i>. Framingham M. Co., (14 P.) 31 491; Bacon v. Bowdoin, (22 P.) 39 401 ; Kabley «. Worcester G. L. Co. , 102 392; Shaw v. Farnsworth, 108 357; Eastman v. Perkins, 111 30; Dix v. Atkins, 130 171; Kimball v. Cross, 136 300. [See, also, post VI, (1).] 11. Where a second lease, to commence at the expiration of the first, is executed before the expiration of the first, the effect is to prolong the tenant's estate, and the second lease must be considered in estimating his damages for taking the property for public use. Cobb v. Boston, 109 438. See, also, Kimball v. Cross, 136 300. 908 LANDLORD, ETC., I; II, (1). 12. For cases where it was held that stimula- tions for the future holding of the premises, contained either in a lease, and relating to the expiration of the term thereby created, or in a separate instrument, did not create a lease, but amounted only to an agreement for a lease, see Weld i>. Traip, (14 G.) 80 330; Cum- ings v. Hackett, 98 51; McGrath v. Boston, 103 369; O'Brien v. Ball, 119 28. [As to whether a person let into possession, under an agreement for a lease or a deed, is a tenant at will, Bee post, II, (1).] 13. A vote of a town, authorizing the select- men to lease land for a year, is not a lease. Hingham ®. Sprague, (15 P.) 32 102. [As to whether an instrument or oral agreement, between a tenant and a third person, is or is not a sublease, seepost, V, (3)."] 14. The relation of landlord and tenant does . not exist between a mortgagor and the mort- gagee in possession. Wood «. Felton, (9 P.) 26 171. [See, Mortgage, I, (4).] 15. But if one in possession of land under a lease takes a mortgage from the lessor, he is considered as holding under the lease, until he has made his election to hold under the mort- gage, and notified the lessor thereof. Newall v. Wright, 3 138; Wood «. Felton, (9 P.) 26 171. 16. As to what is sufficient as such election and notice, and the rights of the parties there- after, see Newall v. Wright, 3 138; Wood «. Felton, (9 P.) 26 171. 17. A mortgagee, who enters to foreclose for condition broken, and gives uotice to the tenant of 1 the mortgagor, in possession under a lease executed aftjr the mortgage, is entitled to the subsequently accruing rent, although the entry is ineffectual to foreclose, because the certificate was not seasonably recorded. Cook v. Johnson, 121 326. See, also, Stone v. Patterson, (19 P.) 36 476; Welch v. Adams, (1 Met.) 42 494; Shepard v. Richards, (2 G.) 68 424. 18. In such a case, the mortgagee is entitled to the whole of the next accruing instalment of rent, without reference to the time which has elapsed, at the time of the entry, since the pay- ment of the last preceding instalment. Knowles ». Maynard, (13 Met.) 54 352. 19. And a subsequent entry for foreclosure is not a waiver of the mortgagee's right to the Tent, under the previous entry. Cook v. Johnson, 121 326. See, also, Fay ». Valentine, (5 P.) 22 418; Page v. Robinson, (10 C.) 64 99; Fletcher v. Cary, 103 475. 20. So a tenant at will of the mortgagor, who, after such entry and notification by the mortgagee, continues to occupy the land, is liable to the latter for use and occupation of the land, subsequently to the entry. Lucier » Marsales, 133 454. See, also, Mass. Hospital Ins. Co. «. Wilson, (10 Met.) 51 126; Shepard v. Richards, (2 0.) 68 424; Button v. Richardson, (10 A.) ©2 200; Merrill e. Bullock, 105 486; Porter®. Hubbard, 134 233. 81. Entry is required in such cases, because there is no privity between the mortgagee and the tenant; but where the lease was given before the execution of the mortgage, the mortgagee, upon giving notice to the tenant in possession, is entitled to receive the rent becoming due after the execution of the mortgage, without entry. Burden s. Thayer, (3 Met.) 44 76; Russell v. Allen, (2 A.) 84 42; Mirick v. Hoppin, 118 582. 22. But not rent which became due before the execution of the mortgage. Burden v. Thayer, (3 Met.) 44 76. 23. The mere continuing, after notice from the mortgagee, to pay rent to the mortgagor, or the purchaser of the equity of redemption, does not per se show that the continued occupation, by a tenant at will of the mortgagor, was adverse to the mortgagee. Lucier v. Marsales, 133 454. 24. Where, after entry by the mortgagee to foreclose, he arranged with the mortgagor that the latter should continue to carry on the farm, and afterwards a purchaser of the equity of re- demption took possession, and employed the mortgagor to carry on the farm as his agent, it was held that, in the absence of any agreement, between the purchaser of the equity and the mertgagee, the latter had a right to the crops. Porter® Hubbard, 134 233. 25. Upon the question whether the defendant or A was liable for an injury, caused by the fall of a shed, owned by the defendant, where the testimony was conflicting as to the terms upon which A occupied the shed, it was held that the jury were properly allowed to determine whether A was the defendant's tenant, and bound to keep the shed in repair. Cunningham v. Cambridge Sav. Bk., 138 480. , 26. Where a sealed lease, for a term of years, was made to A, who was the general agent aud treasurer of a corporation, which had authorized him to hire such a building, his agency being known to the lessor; and the corporation occu- pied the building, and paid the rent upon bills rendered to it by the lessor, and collected the rent from subtenants of A, of part of the building not used by the corporation; it was held that the lessor could not maintain a bill in equity to charge the corporation upon the cove- nants of the lease, and that A's assignee in bankruptcy was entitled to the rent due from the subtenants, at the time of the bankruptcy. Haley «. Boston Belting Co. , 140 73. II. Different Kinds of Tenancy. (1.) Tenant at will. 27. One who enters upon land to use and occupy it, with the consent of the owner, but for no definite time, is a tenant at will. Gould 1). Thompson, (4 Met.) 45 224. See, also, Quincy Par. *. Spear, (15 P.) 32 144; Cheever a. Pearson, (16 P.) 33 266. 28. An oral lease, whether for a certain or uncertain time, and whether an annual rent is LANDLOED, ETC., II, (1). 909 or is not reserved, creates a tenancy at will. G. S., Ch. 89, § 2; P. S., Ch. 120, § 3. Rising v. Stannard, 17 282; Ellis v. Paige, (1 P.) 18 43. See, also, Howard v. Merriam, (5 C.) 59 563; Ashley «. Warner, (11 G.) 77 43. 29. A tenancy at will is created by contract, which may be express, or may be inferred from circumstances; but it must exist. Edwards v. Hale, (9 A.) 91 462; Em- mons v. Scudder, 1 15 367. [See ante, I.] 30. Permission merely by the landlord to a tenant by sufferance to occupy, does not create a tenancy at will; th re must be an agreement, whereby one agrees to hold, and the other to permit him to hold. Porter v. Hubbard, 134 233. 31. Formerly it was doubted, in this Com- monwealth, whether one who is let into posses- sion of land under a contract for a deed, in- tended to be executed and delivered as soon as it can be prepared and the title examined, was, while the contract remained in force and un- executed, a tenant of the vendor, and liable to pay for use and occupation. Lyon v. Cunningham, 136 532. See Number Six v. McFarland, 12 325; Little v. Pearson, (7 P.) 24 301; Boston v. Binney, (11 P.) 28 1; Sanders o. Richardson, (14 P.) 31 522; Quincy Par. v. Spear, (15 P.) 32 144; Cheever v. Pearson, (16 P.) 33 266. 32. But now it is settled that such an occu- pant is a tenant at will. Gould v. Thompson, (4 Met.) 45 224; Foley v. Wyeth, (2 A.) 84 131; Towne v. Butterfield, 97 105; Dunham v. Townsend, 110 440; Emmons v. Scud- der, 115 367; Lyon v. Cunninffham. 136 532. S 33 But such a tenancy at will is of a peculiar character, and does not subject the parties to all the liabilities of an ordinary tenancy at will; ec. gr., the tenant is not liable to pay rent, without a special agreement, or to the statutory proceedings by a landlord to recover posses- sion. Welch v. Andrews, (9 Met.) 50 78; Dakin v. Allen, (8 C.) 62 33; Hastings v. Pratt, (8 CJ 62 121, King v. John- son, (7 G.) 73 239; Lyon v. Cunning- ham, 136 532. Gould v. Thompson, (4 Met.) 45 224, overruled in part. 34. So it cannot be terminated by a convey- ance to a third person, as long as the occu- pant is not in default. White v. Livingston, (10 C.) 64 259. 35. A person let into possession under an agreement for a written lease, reserving rent, is a tenant at will, liable as such for use and occupation, unless there is an agreement to the contrary. Lyon v. Cunningham, 136 532. See, also, Emmons «. Scudder, 115 367; Currier ». Jordan, 117 260. 36. But such a tenancy at will is conditional; and u the owner refuses to give a written lease according to the agreement, and there was no express or implied agreement, as to the inter- vening rent, the occupant may immediately and without notice rescind the contract, and abandon possession, without being liable to pay, except for the time of actual occupation. Lyon ii. Cunningham, 136 532. 37. A tenancy at will may be determined in any manner the parties may have agreed upon, and may be subject to a condition, or limited upon a contingency, and determinable upon the happening of the contingency; and in such a case the tenant is liable for rent only during his actual occupation. Mays. Eice, 108 150; Lyon v. Cun- ningham, 136 532. See, also, Creech v. Crockett, (5 C.) 59 133; Elliott v. Stone, (1 G.) 67 571; Ashley v. Warner, (11 G.) 77 43; Davis v. Murphy, 126 143. 38. Where, however, a tenant whose lease had expired, continued in possession under an agreement for a new lease, and abandoned the premises because the owner refused to repair as agreed upon, and the plaintiff had offered him a new lease, it was held that he was a tenant at will, and not entitled to quit, except upon notice. Emmons v. Scudder, 1 15 367. See, also, Delano v. Montague, (4 C.) 58 42; Edwards «. Hale, (9 A.) 91 462. 39. If the tenant, being in possession under a lease, and having made an agreement with the landlord for a renewal, orally notifies the lessor, before the expiration of his term, that he will not fulfil the new agri. ement, and still holds over, he is but a tenant at sv.fferance, and liable only for the time of actual occupation. Delano*. Montague, (4 C.) 58 42. See, also, Brewer v. Dyer, (7 C.) 61 337. 40. A written lease will create a mere ten- ancy at will, if the term begins upon a con- tingency, and is of uncertain duration. Murray v. Cherrington, 99 229. 41. A tenant at will, evicted without notice, may recover from his landlord damages to the time when the tenancy might have been termi- nated by notice, although the action is brought previously. Ashley v. Warner, (11 G.) 77 43. 42. Where a tenant at will transfers his interest to another, who takes possession, the landlord may show that a notice by him, ad- dressed to the former tenant, or the \ resent occupant, was not intended as a recognition of the latter as the tenant at will. King «. Lawson, 98 309. 43. A tenant at will may maintain trespass quare clausum against his landlord. Dickinson v. Goodspeed, (8 C.) 62 119; Porter v. Hubbard, 134 233. 44. A tenancy at will is terminated by the execution of a conveyance in fee, or a written lease, by the landlord to another, and reasona- ble notice to surrender, without a statutory notice to quit; and the tenant cannot inquire into- the considerat.on, or avail himself of a pro- vision in the lease that rent shall not be claimed, till the lessee is in actual possession. Hildreth v. Corant. (10 Met.) 51 298; Kelly t>. Waite, (12 Met.) 53 300; How- ard i). Merriam, (5 C.) 59 563; McFar- land v. Chase, (7 G.) 73 462; Curtis t>. Galvin, (1 A.) S3 315; Rooney v. Gil- 910 LANDLOED, ETC., II, (1), (2). lespie, (6 A.) 88 74; Pratt v. Farrar, (10 A.) 92 519; Emmes «. Feeley, 133 346; Lawton ». Savage, 136 111; Twombly v. Monroe, 136 464. See, also, Furlong «. Leary, (8 C.) 62 409; Hooton v. Holt, 139 54. 45. So where tenant3 in common convey the land to a partnership, consisting of themselves and another, the acquisition of the undivided share by the new partner terminates a tenancy at will in the property. McFarland *. Chase, (7 G.) 73 462. 46. Where land was conveyed, before 1885, to a husband and wife, they hold by the entirety, and his lease determines the tenancy at will of one holding under the wife. Pray v. Stebbins, 141 219. 47 Where the tenant at will has underlet, and surrendered possession to his subtenant, notice to the latter of a written lease, and to quit forthwith, will sustain an action for pos- session brought by the lessee twelve days after- wards. Clark v. Wheelock, 99 14 48. Notice of the lease need not state that it is in writing, and the tenant cannot inquire into the authority of the attorney who gives the notice. Mizner v. Munroe, (10 G.) 76 290. 49 After the execution of the lease, and notice thereof, the lessee may take possession and eject the tenant, using only such force as is reasonably necessary. Curtis v. Galvin, (1 A.) 83 215; Twombly v. Monroe, 136 464. See, also, Low v. Elwell, 121 309. 50. If a tenancy at will is terminated by a conveyance between two rent days, the tenant is not liable for use and occupation from the last rent day to the time of the conveyance. Emmes v. Feeley, 132 346. See, also, Fuller v. Swett, (6 A.) 88 219, note; Dexter v. Phillips, 121 178. 51. Taking land by a city for a public im- provement does not determine the estate of a tenant at will. Emmes t>. Feeley, 132 346. 52. A conveyance of part of the land de- termines the tenancy at will as to the whole. Emmes v. Feeley, 132 346. See, also, Edwards ». Hale, (9 A.) 91 462. 53. The recovery of judgment by the lessor against the lessee, for possession of the property leased, terminates the right of one occupying as subtenant at will to the lessee. Hatstat v. Packard, (7 C.) 61 245. 54. A tenancy at will, under one tenant in common, of a specific portion of the land, is determined by a partition of the land. Rising v. Stannard, 1 7 282. 55. An assignment of his estate by a tenant at will, terminates the tenancy. Cooper i). Adams, (6 C.) 60 87; King v. Lawson, 98 309; Clark v. Wheelock, 99 14; Borden «. Sackett, 113 214. 56. Trespass guare clcmsum lies against a ten- ant at will, and his estate is terminated, if he commits waste. Daniels v. Pond, (21 P.) 38 367. 57. An entry by the landlord, and a legal no- tice to quit, terminates a tenancy at will, with- out actual expulsion. Ellis «. Paige, (1 P.) 18 43; Curl «. Lowell, (19 P.) 36 25. [As to termination of the tenancy by notice to quit, seepos*, III] (2.) Tenant at sufferance. 58. Where a tenancy at will is terminated, in any mode known to the law; or an oral license to enter and occupy, or an oral lease, expires by its own limitation, and the tenunt in possession has notice; he thenceforth becomes a tenant at sufferance, and has no title, upon which he can maintain an action for ejecting him or disturbing his possession, and is liable immediately to the statutory process for re- covery of possession. Dorrell v. Johnson, (17 P.) 34 263; Hollis v. Pool, (3 Met.) 44 350; Meader v. Stone, (7 Met.) 48 147; Benedict v. Morse, (10 Met.) 51 223; Hildretk e. Conant, (10 Met.) 51 298; Kelly e. Waite, (12 Met.) 53 300; Howard v. Merriam, (5 C.) 59 563; Creech®. Crock- ett, (5 C.) 59 133; Hatstat v. Packard. (7 C.) 61 245; Mason v. Holt, (1 A.) 83 45; Pratt v. Farrar, (10 A.) 92 519; Low «. Elwell, 121 309. 59. So, a tenant under a written lease, who holds over after the expiration of his term, is, in the absence of any agreement to the con- trary, a tenant at sufferance: the doctrine that the landlord may treat him as a tenant at will is not law in this Commonwealth. Edwards a. Hale, (9 A.) 91 462. See, also, Delano v. Montague, (4 C.) 58 42; Low®. Elwell, 121 309. 60. And he does not become a tenant at will, in consequence of a clause in the lease, to the effect that during the term, " and for such fur- ther term " as he may hold the premises, he will "pay the said quarterly rent upon the day," etc. Edwards v. Hale, (9 A.) 91 462. 61. An undertenant, after the termination of the lease to his lessor, becomes a tenant at suf- ferance to the original lessor. Evans v. Read, (5 G.) 71 308. 62. A mortgagor, who continues in posses- sion after condition broken, or a sale under a power in the mortgage, and an entry by the mortgagee or purchaser, is a tenant at suffer- ance. Mayo v. Fletcher, (14 P.) 31 525; Kinsley v. Ames, (2 Met.) 43 29. See, also, Howard v. Merriam, (5 C.) 59 563; Woodside v. Ridgeway, 126 292. _ 63. A tenant at sufferance is liable to an ac- tion of trespass qwvre elauswm, after entry by the landlord or notice to quit, but not before. Danforth v. Sargeant, 14 491; Keay ». Goodwin, 16 1; Risings. Stannard, 17 282. 64. A tenant at sufferance is not entitled to the statutory notice to quit, but he is entitled to such reasonable notice to surrender the pre- LANDLOED, ETC., II, (2), (3); HI, (1). 911 mises, as will enable him to remove his effects; and what is reasonable notice depends upon the neculiar circumstances of each case. Pratt b. Farrar, (10 A.) 92 519. See, also, Rising v. Stannard, 17 282; Curl v. Lowell, (19 P.) 36 25; McFarland v. Chase, (7 G.) 73 462; Clark v. Keliher, 107 406; Arnold v. Nash, 126 397. [See, also, Reasonable Time.1 65. After such reasonable notice, the landlord may forcibly enter and expel him, without be- ing liable to an action, either for the entry, or, if unreasonable and unnecessary force is not used, for an assault. Low*). Elwell, 121 309. See, also, Sampson v. Henry, (11 P.) 28 379; Sampson v. Henry, (13 V.) 30 36; Meader v. Stone, (7 Met.) 48 147; Miner v. Stevens, (1 C.) 55 482; Earnest. Prentice, (8 C.) 62 337; Mason v. Holt, (1A.) 83 45; Curtis «. Galvin, (1 A.) 83 215; Moove «. Mason, (1 A.) 83 406; Mugford v. Richardson, (6 A.) 88 76; Winter v. Stevens, (9 A.) 91 526. 66. But the landlord may be liable to indict- ment for a forcible entry or a breach of the ' Low v. Elwell, 121 309. See, also, Fifty Associates ». Howland, (5 C.) 59 214; Comm. v. Haley, (4 A.) 86 318. [As to the tenant's liability to the statutory pro- cess, seepost, VII, (4).l 67. Where a tenant by lease holds over after the expiration of his term, and is removed by statutory proceedings, the landlord has an action of tort against him for damages by reason of his exclusion. Sargent «. Smith, (12 G.) 78 426. 68. The statute, rendering a tenant at suffer- ance liable for use and occupation, applies to a tenant at will, who continues to occupy a por- tion of the land, after the remainder has been conveyed by the landlord. Bunton v. Richardson, (10 A.) 92 260; Emmes v. Feeley, 132 346. See, also, as to the liability of a tenant at sufferance for use and occupation, under the statute, Weston v. Weston, 102 514; Merrill s.Bullock, 105 486. 69. Qu., whether a mere tenant at sufferance was liable before the statute. Flood v. Flood, (1 A.) 83 217; Mer- rill v. Bullock, 105 486; Porter v. Hub- bard, 134 233. 70. Where a tenancy at will is determined between two rent days, the landlord cannot re- cover a proportional part of the rent since the last payment, as he cannot hold a tenant at will as a tenant at sufferance. Nicholson v. Munigle, (6 A.) 88 215; Emmes r>. Feeley, 132 346. (3.) Tenant under a lease. [See poet, V; VI.] III. Notice to quit. (1.) When necessary, and when not. [As to a tenant at sufferance, see ante, II, (2).] 71. At common law, a failure to pay rent did not work a forfeiture of the term, unless the lease so provided. Hodgkins v. Price, 137 13. 72. At common law, a tenancy at will was determinable at the landlord's pleasure, upon reasonable notice to quit. Hodgkins v. Price, 137 13. See, also, Ellis v. Paige, (1 P.) 18 43. 73. The purpose of the statute, requiring notice to quit, was, as regards a tenancy at will, not to provide a new method of determining such a tenancy, but merely to fix a time which should be deemed a reasonable notice. Hodgkins v. Price, 137 13. 74. The statute does not apply to a case where the tenancy is determined by consent, or by breach of a condition of the lease, or by expiration of a fixed term. Dorrell «. Johnson, (17 P.) 34 263; Creech i>. Crockett, (5 C.) 59 133; Cooper v. Adams, (6 C.) 60 87. 75. Or where the parties have provided by agreement for another kind of notice, or for • termination of the tenancy at pleasure, without notice. Farson «. Goodale, (8 A.) 90 202; Davis v. Murphy, 126 143, overruling, pro tanto, Batchelder v. Batchelder, (2 A.) 84 105. See, also, May v. Rice, 108 150. 76. Where a tenant at will surrenders the premises, by agreement with the landlord, one who has occupied them with him, by his per- mission, but without any agreement with the landlord, is entitled only to reasonable notice to quit, failing to comply with which he may be forcibly ejected. Stone v. Lahey, 133 426. See, also, Low «. Elwell, 121 309. 77. Notice by a landlord to a tenant at will, paying rent monthly, that after a certain day the rent will be raised, and payable weekly, does not, unless assented to by the tenant, estop the the landlord to terminate the tenancy by a month's notice. Blish v. Harlow, (15 G.) 81 316. 78. A tenant at will does not acquire the right to leave without giving the statutory notice to quit, from the mere fact that the rent is payable in advance. Sprague v. Quinn, 108 553. 79. And e converso, the failure to pay the rent in advance, pursuant to an agreement to that effect in an oral lease, does not enable the land- lord to eject the tenant without the statutory notice. Elliott v. Stone, (12 C.) 66 174; Sprague ». Quinn, 108 553. 80. Aliter, if the parties, by their agreement, have made the advance payment a conditional limitation of the tenancy. Elliott v. Stone, (1 G.) 67 571 81. A stipulation in a lease for five years^ that it might be terminated by six months' 912 LANDLOED, ETC., in, (1), (2), (3). notice, was construed, upon a consideration of the entire instrument, to require that the six months' notice must be so given, as to expire at the end of a year of the term. Baker «. Adams, (5 C.) 59 99. 82 A tenant at will who leaves the premises without giving notice to quit, continues to be liable for use and occupation. Walker v. Furbush, 11 C.) 65 366. See, also, Whitney ». Gordon, (1 C.) 55 266. [For additional rulings upon this subject, see ante, II, (1); andpost, VII, (fl C2.) Sufficiency. 83. Service by putting the notice through an open window of a house, where the tenant slept at night, is not sufficient to set running the fourteen days, in case of nonpayment of rent under a lease. Hodgkins v. Price, 137 13. 84. And service by leaving the notice at the tenant's hjuse, not upon the demised premises, without explaining it to any one, is insufficient; but service by leaving it on the demised prem- ises, with an agent or partner of the tenant, or " at his house with his wife, explaining it to her, is sufficient. Walker «. Sharpe, 103 154; Hodg- kins v. Price, 137 13. See, also, Blish o. Harlow, (15 G.) 81 316; Clark v. Keliher, 107 406. And if the wife understands that it is for her husband, a mistake in his name is immaterial. Clark v. Keliher, 107 406. 85. But if the tenant actually receives the notice, it matters not how service was made; and if the service was insufficient, the time begins to run from such receipt. Hodgkins v. Price, 137 13. See, also, Hultain v. Munigle, (6 A.) 88 220. 86. So where a tenant serves a notice on his landlord to terminate a tenancy at will, by putting it into a box at the latter's office, pur- suant to a placard on the door, the office being locked, the notice takes effect from the land- lord's receipt of it. May v. Bice, 108 150. 87. Notice by a tenant at will, addressed to the landlord's agent, is sufficient, if received by him as such agent. Bay State Bk. v. Kiley, (14 G.) 80 492. 88. An objection that a notice to quit was served too late is waived, if not stated until the trial. Bay State Bk. v. Kiley, (14 G.) 80 492. 89. So the jury may find that an objection was waived by the acts of the party entitled to take it, denoting his acquiesence. Boynton v. Bodwell, 113 531. 90. A notice to quit, given to a tenant at will, which does not state the time when he is re- quired to quit, is insufficient. Currier v. Barker, (2 G.) 68 224; Steward v. Harding, (2 G.) 68 335. 91. So is a notice to quit forthwith, given either to a tenant at will, or a tenant in default for rent. Oakes e. Munroe, (8 C.) 62 282; Elliott «. Stone, (12 C.) 66 174. 92. But a notice to quit "within fourteen days from date," if served more than fourteen days before the action is brought, suffices. Johnson v. Stewart, (11 G.) 77 181. See, also, Granger «. Brown, (11 C.) 65 191. 93. Where the tenancy is at will, and the rent is payable monthly, the notice must either specify the day on which the next month expires, or state that the tenancy will be termi- nated in one month from the next rent day. Sanford v. Harvey, (11 C.) 65 93. 94.. In such a case, notice on the first dny of a month to quit on the first day of the next month suffices. Walker v. Sharpe, (14 A.) 96 43. See, also, Coffin «. Lunt, (2 P.) 19 70. 95. In case of a tenancy at will, with rent payable at intervals less than 3 months, notice to quit must terminate at the expiration of one of the intervals, and be served not less than the time of each interval prior thereto. Prescott ». Elm, (7 C.) 61 346. See, also, Baker v. Adams, (5 C.) 59 99; Currier v. Barker, (2 G.) 68 224 96. The date of the notice cannot be pre- sumed to be a rent day, without proof. Prescott v. Elm, (7 C.) 61 346. 97. It is unnecessary to specify in the notice the cause of giving it. Granger «. Brown, (11 C.) 65 191. See, however, Elliott v. Sione, (12 C.) 66 174; Currier v. Barker, (2 G.) 68 224. 98. Notice to a tenant at sufferance to quit within one day is sufficient; if the time is not sufficient, that is matter of defence to an action under P. 8., Ch. 175. Hooton ». Holt, 139 54. (3.) How rendered nugatory. 99. In case of nonpayment of rent under a lease, the forfeiture is not absolute until the 14 days have expired, but it is at most conditional, and may be saved by payment or tender of the rent, at any time before the expiration of the fourteen days, although proceedings have not been commenced. Hodgkins v. Price, 137 13. 100. Qu., as to the effect of a tender after the fourteen days have elapsed. Hodgkins v. Price, 137 13. 101. It is not requisite to tender also the taxes, although the lease provides that the ten- ant shall pay the taxes, and the landlord has paid them to prevent a sale. Hodgkins «. Price, 137 13. 102. An acceptance of the rent due under a lease, for a time subsequent to the expiration of the notice, waives the notice. Collins e. Canty, (6 C.) 60 415. LANDLORD, ETC., Ill, (3); IV, (1). 913 103. But not in case of a tenancy at will, wnere the rent, tailing due the day after the notice, is accepted witn an express reservation of the landlor 's rights iinder the notice. Kimball v. Rowland, (6 G.) 72 224. 104. The burden of proof of waiver is upon the party who asserts it. Whitney ®. Gordon, (1 C.) 55 266. 105. As to what acts of the landlord, other than the receipt of rent, do not amount to a waiver of a previous notice to quit, see Babcock ®. Albee, (13 Met.) 54 273; Tuttle®. Bean, (13 Met.) 54 275. IV. Rights, Duties, and Liabilities, pro- ceeding from the Relation. [As to the landlord's action for use and occupa- tion , see post, VII, (2).T (1.) Defects In, or improper use of, the property. [See, also, Beal Property. As to unlawful use, eeellAWDY House; Imoxicating Liquors, I, ( u ); Nuisance, III, (2); and post, V, (]).] 106. There is no warranty implied in the let- ting of an unfurnished house or tenement that it is reasonably fit for use. Bowe v. Hunking, 135 380. See, also, Dutton «. Gerrish, (9 O.) 63 89; Foster ®. Peyser, (9 C.) 63 242; Welles v. Castles, (3 G.) 69 323; Gill®. Middle- ton, 105 477; Royce ®. Guggenheim, 106 201; Looney®. McLean, 129 33; Woods ®.NaumkeagS. C. Co., 134 257. 107. The tenant takes an estate in the premises hired; and those who occupy by his permission, or as members of his family, cannot be considered as occupying by the landlord's invilation, so as to create a greater liability on the landlord's part to them than to the tenant. Bowe s. Hunking, 135 380. 108. But if the house is infected with small pox, or there is any other concealed source of mischief about it, which no examination can discover, the landlord, if he conceals the fact, is liable to the tenant or a stranger rightfully therein. Minor ®. Sharon, 112 477; Bowe®. Hunking, 135 380. See, also, Carleton «. Franconia I. & S. Co:, 99 216; French ®. Yining, 102 132; Woods ®. Naumkeag S. C. Co , 134 357 109. A landlord is, therefore, not liable to his tenant for an injury, caused by the giving way of a defective stair. Bowe ®. Hunking, 135 380. 110. But where different parts of a building are let to different tenants, with th i right in the tenants to use in common the approaches, stairs, and passage ways, which are not let; the land- lord is liable to a tenant or a stranger, right- fully and with due care using such approaches, stairs, and passage ways, for injuries caused by defects in their construction or want of repair. Readman ®. Conway, 126 374; Looney®. McLean, 129 33; Woods ®. Naumkeag S. C. Co., 134 357. See, Vol. 1—115 also, Foster ®. Peyser, (9 C.) 63 242; Milford ®. Holbrook, (9 A.) 91 17; Leaviit ». Fletcher, (10 A.) 92 119. 111. The fact that the plaintiff knew that the stairs, etc., were in a dangerous condition, is not conclusive evidence that he did not use due care Looney ». McLean, 129 33. See, also, Reed ». Northfield, (13 P ) 30 94; Whittaker ®. West Boylston, 97 273. 112. This liability does not extend to an injury, received from falling on ice on the stone st ps of the common approach, without proof that it was the landlord's duty to keep the steps free from ice. Woods ®. Naumkeag S. C. Co., 134 357. 113. But it does, extend to a similar injury to the tenant, where the ice was accumulated by reason of water flowing from a defective pipe, connected with the roof. Watkins ®. Goodall, 138 533. 114. A landlord is liable for an injury to his tenant, caused by his want of ordinary skill in making repairs, although he undertook to make them gratuitously, and at the tenant's solicita- tion. Gill ». Middleton, 105 477. 115. A landlord, who occupies part of a build- ing, is liable to his tenant, occupying another part, for injury to the latter's goods from water escaping through the landlord's negligence. Priest ®. Nichols, 116 401. [For the general rules as to a landlord's liabilities for the improper use of his property, or negligence with respect thereto, see Land Owner; Negli- gence; Nuisance; Eeal Property.] 116. The general rule is, that the occupant, and not the owner, of a building, is liable to a third person for damages ai ising from any de- fect; but this does not refer merely to the physical occupant, but to the person who occu- pies it as a tenant, having the control of it, and being, as to the public, under the duty of keep- ing it in repair. If such control and duty remain upon the owner, he is responsible for defects. Cunningham ®. Cambridge Sav. Bk., 138 480. 117. As between the parties and the public, the rule is, that the occupant is bound to keep the property in such repair, that it is safe for the use of travellers upon the highway, and he is rrima facie liable for a damage from such a de- fect; but if the landlord is bound by express agreement with the tenant to repair ,_ the person injured may maintain an action against him, to avoid circuity. Kirby ®. Boylston Market, (14 G.) 80 249; Milford®. Holbrook, (9 A.) 91 17. See, also, Lowell ®. Spaulding, (4 C.) 58 277; Oakham ®. Holbrook, (11 C ) 65 299; Boston ». Worthington, (10 G.) 76 496; Rea man ®. Conway, 126 374; Mellen ®. Morrill, 1 26 545. 118. So the town, having been compelled to pay the damages, has a remedy over against the tenant. Lowell v. Spaulding, (4 C.) 58 277. 119. If the landlord controls the roof of the building, he is liable for an injury, caused by 914 LANDLOED, ETC., IV, (1), (2), (3). the falling of ice and snow therefrom npon a passer by. Kirby «. Boylston Market, (14 G.) 80 249; Shipley «. Fifty Associates, 101 251, Shipley v. Fifty Associates, 106 194; Leonard v. Storer, 115 86. 120. As to his liability for the safety of an. \ awning. Milford v. Holbrook, (9 A.) 91 17. 121. Letting a store and cellar does not re- lieve him from liability for a defect in the side- walk in front of the store, he occupying the remainder of the building. Larue v. Farren Hotel Co., 116 67. 122. As to the liability of a landlord for an injury to a passer by, caused by the negligence of the tenant's servant, where the parties had agreed to surrender the lease, but the tenant re- mained in possession to collect rent on sub- leases, as agent for the landlord, and to take care of the building, make repairs, etc., for a compensation, see Stewart v. Putnam, 127 403. 123. A landlord is liable to a lower riparian proprietor, for the pollution of a stream by his tenants, if the building is so constructed as to drain into the stream. Jackman «. Arlington Mills, 137 277. 124. And it is no defence that the plaintiff has also polluted the stream in some degree. Jackman v. Arlington Mills, 137 277. See, also, Sherman v. Fall Be I. Works, (5 A.) 87 213; Clarke v. French, 122 419; Brown v. Dean, 123 254. 125 As a general rule, a landlord is not liable for a nuisance caused by the act or neglect of his tenant. Shipley v Fifty Associates, 101 251; Shipley » Fifty Associates, 106 194. 126 He is not liable for the explosion of a boiler used by his tenant, if it has been inspected, and is furnished with a safety plug, as required by law. Saltonstall i> Banker, (8 G.) 74 195. 127. Nor for injury from tide water escaping into the plaintiffs cellar, through his tenant's negligence in leaving open, for repairs, a drain, which communicated with a sewer, through which the tide water came ; although the land- lord authorized the tenant to make the repairs, and undertook to pay him a specified sum therefor. Murray v. Richards, (1 A.) 83 414. 128. The tenant is liable for the fall of a sign hung over a store, although put up with due care, if it was put up in violation of a city or- dinance. Salisbury v. Herchenroder, 106 458. (2.) Repairs ; Injury ; destruction. 129. A landlord cannot maintain an action against a third person for an injury to the pos- session of his tenant, although he is a mere tenant at will. Wheeler v Train, (3 P ) 20 255; French ». Fuller, (23 P.) 40 104. 130. But he can maintain such an action to recover damages for any injury to his reversion- ary interest, whether it was a direct injurj *, the property, . Fletcher, (14 P.) 31 525. 150. As to the title to crops and emblements, between the demandant and the tenant, in a writ of right, see King v. Fowler, (14 P.) 31 238. [As to the interest of landlord and tenant respect- ively, in the crops of a farm leased upon shares, see Joiht Tenauts, etc., arts, 92 to 96.] (5.) Other rights, duties, and liabilities. 151. In this Commonwealth, a landlord has no right of distress for rent. Mb parte "Wait, (7 P.; 24 100. 152. If a lessee for years of a farm and stock sells part of the stock, and the lease is then determined by mutual agreement, the pur- chaser is liable to the lessor in trover. Billings ». Tucker, (6 G.) 72 368. 153. "Where the rent in a lease is reserved generally, without being made payable to any particular person, and is covenanted to be paid quarterly during the term, the lease does not terminate on the death of the lessor, but is pay- able to his heirs at law, if he dies intestate, who may maintain debt on the lease to recover it. Jaques v. Gould, (4 C.) 58 384. 154. A person, who agrees by a writing, not under seal, to allow another the use of certain rooms in a building, in consideration of the latter's taking care of the building, is not liable to the latter lor the rent of those rooms, either for his eviction, or for refusing to let him into possession. Bowen *. So. Building Prop'rs, 137 274. 155. "Where a lessee enters upon land, under a lease from one in possession claiming title, who is afterwards evicted by t^itle paramount, the lessee is not liable for mesne profits to the real owner. Allen v. Thayer, 17 299. 156. In the absence of a special agreement, a landlord, not an innkeeper, has no lien upon the chattels of an outgoing tenant; but he may recover a reasonable compensation for storing them until demanded, but not afterwards. Preston v. Neale, (12 G.) 78 222. 157. A landlord's remedy for an unauthor- ized removal of fixtures, put in by the tenant under a special agreement, is by action on the agreement, and not on the covenant in the lease against waste. Wall v. Hinds, (4 G.) 70 256. 158. A lessee, who has erected on the premises a building, which he has the right by special agreement to remove, renounces his right by 916 LANDLOED, ETC., V, (1). an unqualified surrender of the premises, even although he takes a new lease. bhepard v. Spaulding, (4 Met.) 45 416. V. Lease; Validity; Effect; Duration. [See, also. Contract, II, (2); III, (1); IV, (7).l (1.) Nature; validity; what passes. 159. A widow's unassigned right of dower is not an estate which can be the subject of a lease, and in an instrument purporting to. be a lease thereof, the covenant to pay rent is a mere personal covenant, and does not estop the lessee or his assignee to deny her title. Croade v. Ingraham, (13 P.) 30 33. 160. A lease by one tenant in common of a portion of the estate in severalty, is invalid as to those who do not join. Tainter v. Cole, 120 162. See, also, De Witt v. Harvey, (4 G.) 70 486; Cun- ningham v. Pattee, 99 248, and Joint Tenants, etc., I (2) 161. But one who enters under a lease of property, execu'ed by one of three joint owners, is lialble to the survivors for the rent, or for use and occupation. Codman v. Hall, (9 A.) 91 335. 162. So a lessee who enters under an instru- ment, i jvalid as a lease, for want of compliance with the statutory requisites in the state where the land is situated, and has not been evicted, is liable upon his covenants therein. Ripley v. Cross, 111 41. See, also, Hunt v Thompson, (2 A.) 84 341. 163. So where a lease to a corporation is signed by the committee appointed to make it, and the corporation enters, it is bound by it as a lease. Carroll v. St. John's Catholic, etc., So- ciety, 125 565. 164. And where trustees, who held land in trust to apply the rents to A during his life, and on his death to convey the land to others, made a lease of the property for three years, in ignor- ance of the fact thai A was dead, jt was held that the lease was only voidable, and, not hav- ing been avoided, and the lessee having entered, that it was a valid lease. Pennock «. Lyons, 118 92. 165. If the term specified in a lease com- mence : infuturo, and will not expire in seven years from the making thereof, the lease is within the statute requiring it to be recorded. G. S., Ch. 89. § 3; P. S., Ch. 120, § 4. Chapman v. Gray, 15 439. 166. Oral testimony is admissible to show that a lease, containing a covenant that the premises s'.ould not be used for an unlawful purpose, was made with intent that Ihey should be so used; and such proof renders it void. Sherman v. Wilder, 106 537. 167. If originally void for that reason, it can not be made valid by the lessee's assign- ment of it. Sherman v. Wilder, 106 537. 168. Evidence that the premises were so used, with the lessor's knowledge, is competent upon the question of its valiuity. Sherman v. Wilder, 106 537. 169. Oral testimony is inadmissible to show, that the words " to let, lease," etc., in a written instrument, were intended as a contract to assign a lease, instead of a contract to lease. Gardner v. Hazelton, 121 494. 170. As to the admissibility of evidence of usage to control a lease, see Sawtelle v. Drew, 122 228. 171. A lease of "a store" includes the land und.r it, and to the middle of a vrivate way in the rear, the fee of which is in the lessor. Hooper v. Parnsworth, 128 487. See, also, Forbush «. Lombard, (13 Met.) 54 109; Boston v. Richardson, (13 A.) 95 146; Oliver t>. Dickinson, lOO 114; Rogers v. Snow, 118 118; McNeil «. Kendall, 128 245. 172. The lease of a "building" includes the land under the eaves, if owned by the lessor Sherman v. Williams, 113 481. 173. Where the lessor demised "all that farm, etc., now occupied by the lessor, but lately occupied by T," reserving the house, p-arden and garden grounds; and he occupied at the time, as part of the farm, a lot which had never been owned or occupied by T, but several acres of which were included in the garden and. garden grouuds; and the lessee immediately entered upon that lot, and cultivated it during the lease; it was held that the lease included that lot. Jewett v. Steer, (6 C.) 60 99. 174. In a lease by a tenant pur autre vie to the remainderman, it was held tl:at the legal estate in fee vested in the latter, and that certain words of reservation should not be construed so as to render them repugnant to the habendum, and thus defeat the grant of the life estate. Pynchon«. Stearns, (11 Met.) 52 312. 175. A lease by the owner of a factory and water power, of an adjoining building, "for the purpose of carrying on a foundry," with the right to take water for a fan bellows, when there is water sufficient for the lessor's fan bellows gives the lessee no right to take the water for any other purpose, although incidental to the business of a foundry, which shall impede the lessor's fan bellor. s. Sibley a. Hoar, (4 G.) 70 222. 176. Where a person owning two lots of land, one fronting on E. street and the other in the rear thereof, both bounded on one side by M. street, on which a building had been erected, covering both lots, and having a partition wall, with no opening, on the line between the lots, took down the partition wall on the first floor, but not above, the entrance to the large rcom thus formed and the rooms i.bove in front being on E. street, and the rear rooms on the upper floors being reached from M. street by an out- side stairway; and then made a lease, describing the property by the number on E. street, it was held that the upper stories in the rear did not pass. Houghton v. Moore, 141 437. 177. In another case, where a lessor, in a lease of a factory, water power, and machinery,. LANDLOED, ETC., V, (1), (2). 917 reserved a room in the building, with the priv- elege of running a turning lathe and saw therein, it was ruled that the reservation must he construe i so as to enable the lessee to carry- on his factory; and it was for the jury to judge what was a reasonable and proper limitation of the right reserved. Dexter v. Manley, (4 C.) 58 14. 178. For various rulings, upon questions of evidence, arising upon such a lease and reserva- tion, see Dexter v. Manley, (4 C.) 58 14. [For rulings relating to grants and reservations of water rights in deeds, see Deed III, (4). 1 (2.) Assignment by lessee; sublease; cov- enants running with the laud. [See, also, arte, arts. 55, 141, 167. As to covenants relating to assignments, see post, VI, (6). | 179. The assignee of a lessee for a term of years is bound by the covenants in the lease which run with the land, and liable thereupon to the lessor; but a sublessee is not so liable. Daniels v. Richardson, (.'2 P.) 39 565; Campbell v. Stetson, (2 Met.) 43 504; Torrey v. "Wallis, (3 0.) 57 442; McNeil «. Kendall, 128 245; Dunlap v. Bullard, 131 161; Mason v. Smith, 131 510. 180. If Ihere are two or more assignees, each of a portion, the liability is apportionable upon each, according to the annual value of his his portion. Daniels v. Richardson, (22 P.) 39 565. 181. The test, whether an instrument is an assignment or a sublease, is whether the party has acquired the whole estate and interest of the lessee, in the whole or part of the land; to render him an assignee he must not only take the whole term, but precisely the same estate, and the whole estate, in the leased premises, or the part thereof transferred to him. McNeil v. Kendall, 128 245; Dun lap «. Bullard, 131 161. See, also, Patten v. Deshon, (1 G.) 67 325; Buf • fum v. Dea-e, (4 G.) 70 385; Shum way v. Collins, (6 G.) 72 227; Hunt «. Thompson, (2 A.) 84= 341; Way v. Reed, (6 A.) 88 364; Sanders v. Part- ridge, 108 556; McNeil v. Ames, 120 481; Porters. Merrill, 124 534; Farrington . Howland, (5 C.) 59 214. 191. Where, upon an assignment by a lessee, the assignee executes back an instrument cove- nanting to make certain improvements, and to re-assign upon payment of the cost thereof by the lessre, the assignee is nevertheless liable upon the covenants. Simonds v. Turner, 120 328. 192. A bequest of all the lessee's interest, op- erates as an assignment. Martin «. Tobin, 123 85. 193. So does a sale under an execution. McNeil v. Ames, 120 481. 194. Where the lease is under seal, an assign- ment thereof, either by the lessor or lessee, must be under seal; but an equitable assign- ment will save equitable rights. Wood v. Partridge, 11 488; Dennis v Twiichell, (10 Met.) 51 180; Brewer v. Djer, (7 0.) 61 337. 195. And an assignment by a lessee, not un- der seal, will render the assignee liable to the assignor' for the rent, if he enters or takes the rents and profits. Sanders «. Partridge, 108 556. 918 LANDLOKD, ETC., V, (2), (3). 196 A lessee who assigns only his "term," •without warranty, is not liable to the assignee for an eviction. • Waldo i> Hall, 14 486 197 Where the lessee assigns an undivided half of his interest with the landlord's consent, a re-assignment to him does not require consent. McCormick v. Stowell, 138 431. 198. An agreement by the lessor with an assignee to release the lessee, after a future day, does not operate as a release to him for rent ac- cruing before that day. Dwightu Mudge, (12 G.) 78 23. 199. An assignment by a lessee, after the lessor has recovered possession upon execution against him, is void, and is not validated by the lessor's assent thereto. Carter v. Kussell, 101 53. See, also, Grundin v. Carter, 99 15. 200. Where one of two lessees, who cove- nant jointly in the lease, is described as surety, the assignment by the other of the lease, with the assent of the lessor and the surety, and the acceptance of a written contract by the lessor from the assignee to fulfil all the stipulations of the lease, do not discharge the surety. Way v. Reed, (6 A.) 88 364. 201. Nor is he discharged by the re-entry of the lessor, for the failure of the assignee to fulfil his contract. Way v. Reed, (6 A.) 88 364. 202. Nor by the use of the premises by the assignee for an unlawful purpose, without the lessor's knowledge. Way v. Reed, (6 A.) 88 364. 203. A covenant to pay rent runs with the land, and binds the assignee. Kendall v. Carland, (5 C.) 59 74; Pat- ten v. Deshon, (1 G.) 67 325; Sanders v. Partridge, 108 556, Mason v. Smith, 131 510. See, also, ante, arts. 179, 184. 204. So does a covenant to pay taxes. Dunlap v. Bullard, 131 161; Mason «.Smith, 131 510. See, also, post, VI, (2;. 205. So does a covenant to pay duties or as- sessments on the land, and it includes a better- ments assessment. Simonds v. Turner, 120 328. See, also, Curtis ■». Pierce, 115 186; Blake v. Baker, 115 188, and, post, VI, (2). 206. So does a covenant against unlawful use of the premises. Wheeler v. Earle, (5 C.) 59 31. 207. So does a covenant to pay " other sums of money." Mason v. Smith, 131 510. (3.) Assignment by lessor; attornment, [As to the necessity of a seal, if the lease is tinder seal, see, ante, arts. 194, 195.] 208. An assignment of a lease by the lessor entitles the assignee to sue, in his own name, upon the covenants in the lease. Hunt v. Thompson, (2 A.) 84 341; Pfaff v. Golden, 126 402. 209. So an assignment of the rent, without mentioning the reversion, entitles the assignee to recover the rent in his own name. Kendall v. Carland, (5 C.) 59 74; Pat- ten «. Deshon, (1 G.) 67 325. 210. So the assignee of the lessor may re- cover the rent in debt against the assignee of tllG J.GSS66 Howlandfl. Coffin, (9 P.) 26 52; How- and v. Coffin, (12 P.) 29 125, Way v. Reed, (6 A.) 88 364; Pfaff v. Golden, 126 402. 211 For a case where an assignment was con- strued to be a mere power cf attorney, and not to authorize an action in the assignee's name, see Lord v. Carnes, 98 308. 212. A lease for a longer period than an out- standing lease of part of the property, with power to collect the rent due on the latter lease, authorizes the lessee under the former lease to sue for the rent in his own name. Harmon i>. Flanagan, 123 288. See, also, Burden v. Thayer, (3 Met.) 44 76; Hunt ». Thompson, (2 A.) 84 341. 213. A grant of a reversion is effectual in this Commonwealth, without an attornment of the tenant. Burden v. Thayer, (3 Met.) 44 76. 214. But the assignee is not entitled to rent due and in arrear, at the time of the grant. Burden v. Thayer, (3 Met.) 44 76. 215. And if the grantor assigns such rent to him, he cannot recover therefor in his own name. Burden v. Thayer, (3 Met.) 44 76. 216. If the tenant pays the rent to the lessor, he is protected against the assignee's claim, unless the latter has given him notice. Farley v. Thompson, 15 18. 217. Where one party to an agreement for an exchange of lauds, executed his conveyance, and the other refused to execute his, but sub- sequently executed it, and it was accepted, it was held that the acceptance barred an action by the first grantor for the intermediate rent. Warner v. Bacon, (8 G.) 74 397. 218. A purchaser under an execution may collect rent thereafter accruing, as an assignee, and tho lessee cannot set off a debt against the lessor, contracted since the attachment Buffum v. Deane, (4 G.) 70 385 |As to the right of a mortgagee, who enters for condition broken, see ante, I/j 219. If the rent is payable in advance, and an instalment is due on the day when the mort- gagee enters for condition broken, he is entitled to that instalment. Smith v. Shepard, (15 P.) 32 147. 220. A lessor's mere right- to re-enter for for- feiture cannot be assigned. Rice v. Stone, (1 A.) 83 566; Trask v. Wheeler, (7 A.) 89 109. 221. Where the lessor conveyed his interest to A, and A conveyed it to B, who reconveyed it to the lessor, all the conveyances constituting one transaction, and A demanded possession; it was held, in an action for rent by the lessor, that the assignments effected no change in the LANDLOED, ETC., V, (4). 919 title, and that the plaintiff might recover, unless the tenant had been misled to his prejudice. Borden v. Sackett, 113 214. [As to the effect of an attornment by a tenant to one claiming under title paramount, see^jos (, V, (5) ] (4.) Surrender; forfeiture. 222. In an action -for rent due upon a lease, evidence of a contemporaneous qral agreement, that the lessee might surrender at any time, was excluded as controlling the lease, but ad mitted to explain facts, as to which the lessee claimed that they constituted a surrender. McGlynn v. Brock, 111 219. 223. Where, by agreement between the lessee and the lessor, the lessee abandons and the lessee lvsumes possession, this is a surrender by operation of law, not requiring a writing under G. S„ Ch. 89, § 2; P. S., Ch. 120, § y 3. Amory v. Kannoff sky, 117 351. See, also, Randall v. Rich, 11 494; Talbot e. Whipple, (14 A ) 96 177; Hanham «. Sherman, 114 19; Fifty Associates v. Grace, 125 161. 224. It makes no difference that the lessor acted through an agent, who had no written authority. Amory ». Kannoffsky, 117 351. 225. Nor that the surrender was by means of an oral acceptance by the lessor, with the lessee's assent, of the lessee's subtenant as his tenant. Amory v. Kannoffsky, 117 351. 226. Such a surrender may be made by the administrator of a deceased lessee. Deane v. Caldwell, 127 242. 227. Such a surrender may be accepted in consideration of the assignment to the lessor of the underleases, in winch case he may enforce them. Beal v. Boston Car S. Co., 125 157. 228. The making and acceptance of a new lease is ordinarily the surrender of an existing lease; but it may be regarded, where such appears to have been the intent, as a confirma- tion of a former lease Flagg v. Dow, 99 18. 229. And where the term of the former lease had expired before the second lease was given, hut the former remained in force for the pur- pose of obtaining compensation for the value of the buildings, it was held, under the peculiar circumstances of a complicated case, that to that extent the former lease was not surrendered by the new lease. Flagg v Dow, 99 13. ■ 2 ?v' £ conv eyance by the lessee to the lessor, m the form of a lease, was held to be a good surrender and merger of the term. Shepard ».. Spaulding, (4 Met.) 45 231 At common law, to enable the landlord to enforce the forfeiture of a lease, for nonpay- i,™ ?£ , e rent ' the rent must De demanded due md Up0n the day when U is Chapman v. Harney, 100 353; Hart- well «. Kelly, 117 235. 232. Upon a demand elsewhere than upon the land, the tenant's answer that he cannot then pay the rent is not a waiver of a demand upon the land, for the purpose of the forfeiture. Chapman v. Harney, 100 353. 233. A lease is not merged or extinguished by a deed from the lessor to the lessee, as against a prior attachment of the lessor's interest. Buffum 1). Deane, (4 G.) 70 385. 234. "Where a lease expressly provides, that in case of a breach of any of the covenants or conditions therein contained, the lessor may enter and expel the lessee, and the lease shall cease; the lease remains in force, notwithstand- ing a breach, unless, while the default continues, the lessor enters. Guild v. Richards, (16 G.) 82 309; Hubbard v. Hubbard, 97 188; Chap- man v. Harney, 100 353; Rogers v. Snow, 118 118. See, also, Fifty Associates v. Howland, (11 Met.) 52 99; Fifty Associates v. Howland, (5 C.) 59 214; Wheeler «. Earle, (5 C.) 59 31; Gould v. Bugbee, (6 G.) 72 371; Shat- tuck v. Lovejoy, (8 G.) 74 204; Bart- lett v. Greenleaf, (11 G.) 7 7 98. 235. A forfeiture incurred, pursuant to the provisions of a lease, by an assignment thereof, is 'waived by the receipt of rent upon the lease, with knowledge of the facts, by the lessor. O'Keefe o. Kennedy, (3 C.) 57 325. 236. But a waiver of a forfeiture, incurred by reason of one breach, is not a waiver of a forfeiture incurred by a subsequent breach. Seaver s. Coburn, (10 C.) 64 324. 237. A condition in a lease against alienation without the lessor's consent, is determined by one alienation with his consent; and a subse- quent alienation will not create a forfeiture. Pennock v. Lyons, 118 92. 238. Under the statutes relating to keeping a tenement for the unlawful sale of intoxicating liquors, or under an agreement that the lessor may enter in case of unlawful use of the prop- erty, the lease may be declared forfeited by the lessor, in case cf such unlawful use by a sub- tenant, with the knowledge or consent of the lessee " '"Wheeler v. Earle, (5 C.) 59 31; Trask ». "Wheeler, (7 A.) 89 109; Prescott v. Kyle, 103 381. 239. But if the lessee has not expressly or impliedly consented, the illegal use forfeits only the sublease. O'Connell v. McGrath, (14 A.) 96 289. See, also, Healy v. Trant, (15 G.) 81 312. 240. The supreme judicial court will stay, at common law, proceedings upon a writ of entry to enforce a forfeiture, designed to secure the payment of rent, and incurred by accident or mistake, upon the tenant's paying to or bringing into court for the demandant, the full amount, with interest and costs. Atkins v. Chilson, (11 Met.) 52 112. 241. For a peculiar case, where the_ forfeiture of a lease for nonpayment of rent in specific articles, hard to be obtained, was enjoined in equity, see Lilley v. Fifty Associates, 101 432. [As to the general jurisdiction in equity to restrain forfeitures, see Injunction, arts 55, 56.] 920 LANDLOED, ETC., V, (5), (6). (5.) Eviction. [See, also, post, VI, (4).] 242. General rules respecting an eviction. Skally v. Shute, 132 3U7. 243. An action upon the covenant in a lease to pay rent, cannot be maintained for an instal- ment of rent, falling due after the eviction of the lessee; but an eviction does not excuse the payment of an instalment previously due. Fitchburg Cotton M. Go. v. Melven, 15 268, Smith v. Shepard, (15 P.) 32 147. 244 Where a lessee, to prevent actual expul- sion from the premises, yields to one having a title paramount to his lessor's, and attorns to him, this is equivalent to an actual ouster, and is a defence to an action upon the lease for the rent Morse v. Goddard, (13 Met.) 54 177. 245. So of a sublessee of a tenant at •will. Holbrook i>. Young, 108 83. 246. So where a judgment creditor of the lessor has levied upon the land. George v. Putney. (4 C.) 58 351. 247. Eviction by the tenant from a part of the demised premises, bars any action for the rent, or for use and occupation, as long as the eviction continues. Shumway v. Collins, (6 G.) 72 227; Fuller v. Ruby, (10 G.) 76 285; Irish- man «. White, (1 A.) 83 489; Royce «. Guggenheim, 106 201; Colburn v. Morrill, 117 262; Fillebrown v. Hoar, 124 580. 248 But an eviction by title paramount from a part of the demised premises, is a bar pro tanto only, and the rent will be apportioned. Fitchburg Cotton M. Co. v. Melven, 15 268; Fillebrown v. Hoar, 124 580. 249 At. interruption by the landlord of the tenant's occupation, Without an actual eviction, does not suspend the rent. Fuller v. Ruby, (10 G.) 76 285. 250. This is the rule, although the landlord's acts are annoying trespasses; and no act of the landlord, however aggravated, will entitle the tenant to defend an action for the rent, or to any diminution of the rent agreed upon, unless he abandons possession in consequence thereof. Boston & Worcester Railroad ». Ripley, (13 A.) 95 421; De Witt «. Pierson, 112 8; Bartlett v. Farrington, 120 284. 251. But acts of the landlord which have the effect of permanently depriving the tenant of the beneficial enjoyment of the demised premises, or some part thereof, to which he yields, and abandons possession within a reason- able time, constitute an eviction, and the landlord's intent to evict is conclusively pre- sumed therefrom. Skally v. Shute, 132 367. See, also, Royce v. Guggenheim, 106 201; De Witt v. Pierson, 112 8; Mirick ij. Hoppin, 118 582; Bartlett ». Farring- ton, 120 284. 252. The erection by the landlord of a wall under the eaves of the demised building may be treated by the tenant as a partial eviction. Sherman v. Williams, 113 481. 253. Where the landlord, by mistake, put up a fence between the demised land and lus adjoining land, so as to cut off part of the former, and on discovering the mistake offered to remove it, bu the lessee forbade his doing so, it was held that there had been no partial eviction. Mirick v. Hoppin, 118 582. 254. Where the parties agree that the value of the unexpired term, where the lessee has been evicted, shou.d be set off against the claim for rent,, it is erroneous to rule that the fact that the lease is not assignable is immater- ial in estimating its value. Rice v. Baker, (2 A.) 84 411. 255. Where lessor and lessee agree that the cost of certain repairs, to be made by the latter, may be applied in payment of the rent; if, after making the repairs, the lessee is evicted for nonpayment of rent, he is entitled to have the value of the repairs deducted from the rent, although it has not been settled between the parties. Fillebrown v. Hoar, 124 580. (6.) Other modes of termination. LAs to termination by virtue of special provisions in the lease see. aLo, post, \ I/] 256. Where a lease for 20 years contained a provision, that if the lessor should want the premises for building at any time after 15 years, the lessee would surrender upon reasonable notice; and, a fire having taken place, the lessor illegally ousted the lessee, and erected new buildings; and eight years afterwards, at the expiration of the 15 years, notified the lessee that he wanted the premises for building; it was held, in ejectment by the lessee, that the notice was of no effect. Hodgiiins «. Price, 137 13. 257. Where the "right to terminate this lease " was reserved, between the lessor's words of demise for five years, and the tenant's promise to pay rent as long as he should occupy the ho.ise, and to furnish board and lodging to the lessor; then a clause followed, giving the lessee a further term, and containing an executory agreement on his part: it was held that the right of revocation did not apply to the execu- tory agreement. Cumings « Hackett, 98 51. 258. A lease, given during th o owner's ab- sence, by an agent who had authority only "to take charge of the land while he was gone," etc., is terminable by the owner on his return. Antoni v. Belknap, 102 193. 259. In the absence of a stipulation to that effect, or its equivalent, the destruction by fire of the buildings upon the premises does not terminate a lease. Fowler v. Bott, 6 63; Davis v. Alden, (2G.) 68 309. 260. Partial injury by fire does not authorize the tenant to terminate a lease, providing for such termination, if the building should be "destroyed by fire.' Wall v. Hinds, (4 G.) 70 256. LANDLOED, ETC., V, (6); VI, (1). 921 261. Where a lease contains a clause, that if the building is "destroyed or damaged by lire," the rent shall be suspended until the premises are put in proper condition by the lessor, it is not terminated by such destruction; and a new building, erected by the lessor, becomes part of the premises demised, and enures to the tenant's benefit. Rogers v. Snow, 118 118. 262 Nor is such a lease terminated at the lessor's election, by the enactment of a statute requiring the new building to be constructed of different materials, and in a more expensive manner. Eogers v. Snow, 118 118. [ As to tT*e general liability to repair or rebuild, see ante, IV, (2) ; as to the effect of a covenant to repair or rebuild, ecepost, VI, (3); as to abatement of rent, seepost, VI, (7)0 263. The taking of part of leased land for public use does not extinguish the lease. Parks v. Boston, (15 P.) 32 198; Pat- terson v. Boston, (20 P.) 37 159. 264. But the taking of the entire premises, under a statute which vests the title in the city, terminates the lease, although the tenant still continues in possession, subject to the works which the city is carrying on. O'Brien ». Ball, 119 28. See, also, Dingley v. Boston, 100 544. 265. And wherever, for any reason, the estate of the lessor ends, before the rent accrues, the lessee is discharged from his covenant to pay rent, and he is not estopped thereby to show the fact. Lamson v. Clarkson, 113 348. See, also, Munigle v, Boston, (3 A.) 85 230, and ante, IV, (3). 266. A clause in a lease, that the lessor shall have the right to sell during the term, by giv- ing the lessee two months' notice, and the option to purchase, is enabling and not restrictive, and a sale of the premises, subject to the lease, •without notice or offer to the lessee, is not a breach thereof. Callaghan v. Hawkes, 121 298. 267. For another case, where the right to sell was reserved, see Knowles v. Hull, 97 206, cited, post, art. 279. 268. Where the owner of land sold a fur- nace, etc., and then leased the land to a pur- chaser, who covenanted to pay a stipulated annual sum, " so long as he should keep the furnace and buildings on the land, in full for rent," and afterwards suffered the furnace to go down, and used one of the buildings for another purpose; it was held that the lessor could not determine the lease, until after reasonable notice to the lessee to repair the furnace. Cook v. Bisbee, (18 P.) 35 527. 269. A clause in a lease, that the lessee agrees to surrender the premises on three months' notice, and payment of $250, is not a condition or limitation, but a covenant; and the lessee's estate is not determined by thfl notice and offer to pay the money. Wheeler ». Dascomb, (3 C.) 57 285. 270. For a ruling as to the measure of dam- ages of a lessee under a lease, providing that it might be terminated on notice, and payment of Vol. 1—116 such loss as he might, "by such abridgment of the term, sustain, in consequence of expendi- tures incurred by the lessee in fitting up the premises, and expenses incuired in removing," see Pratt v. Paine, 119 439. 271. A landlord who terminates a tenancy between two rent days, pursuant to a power reserved in the lease, cannot recover, cither a portion of the rent, or for use and occupation since ihe last rent day. Nichokon v. Munigle, (6 A.) 88 215. 272. So where the lease is oral. Fuller ». Swett, (6 A.) 88 219, note. VI. Lease; certain special Stipulations. (1.) Election to renew. [See, also, ante, I.] 273. Where premises are leased for one year at a sum named, "with the privilege of con- tinuing five years," at an increased rent, the latter clause is not an executory contract, but creates a present demise, if, iit the end of the year, the i ccupation is continued. Kimball v. Cross, 136 300. See, also, Kramer v. Cook, (7 G.) 73 550; Weld v. Traip, (14 G.) 80 330; McGrath v. Boston, 103 369. /4. If, however, the tenant thus holds over and pays rent, evidence is admissible to show that he did so as a tenant at will, under an oral agreement between him and the lessor, made before the execution of the lease. Atlantic Nat. Bk. ■». Demmon, 139 420. 275. As to what facts entitle the jury to find that the lessee elected to renew, see Kimball v. Cross, 136 300. 276. So where a lease for two years provides, that unless three months' notice is gi en by either party, of an election to terminate the lease at the end of the term, it shall continue in force for another year, and so on from year to year; this is not an agreement for a lease in futuro, but upon a failure to give the notice, it con- tinues in operation as a lea^e in presenti from year to year. Dix ii. Atkins, 130 171. 277. In an action upon such a lease for a quarter's rent of the third year, evidence that the plaintiff let, or occupied the tenement, after that quarter, is immaterial. Dix «. Atkins, 130 171. 278. As to the effect and sufficiency of a covenant for renewal in a peculiar case. Cunningham *. Pattee, 99 248. 279 Where a religious society leased a store to a person for a term of three years, with a privilege of two years more, unless the society should sell the store, it was held, that the privi- lege was annulled by a sale, either before or during the additional term of two years. Knowles v. Hull, 97 206. 280. Where a lease for ten years stipulated that the lessor should pay the lessee for certain 922 LANDLORD, ETC., VI, (2), (3). improvements, "provided the said premises shall not be relet to the lessee"; it was held, that a continued occupation for two years, after the expiration of the term, without a new lease, was not such a reletting as the original lease contemplated Moseley v. Allen, 138 81. (2.) Payment of taxes and assessments. [See, also ante, V, (2).] 281. Where a lease contains a covenant by the lessee to pay taxes, a provision in it, that in case of destruction of the building, the rent or a portion thereof shall be suspended or partially abated, does not apply to the taxes, which the tenant must pay without abatement. Sargent v. Pray. 117 267; Minot «. Joy, 118 308; Hodgkins v. Price, 137 13. 282. Nor is he entitled to a return of any part of the taxes paid by him to the assessor, although the building is afterwards destroyed, and the lease terminated thereby. Wood j). Bogle, 115 30; Carnes v. Hersey, 117 269; Howe v. Bryant, 117 273. rate. 283 And where such destruction and ter- mination occurred soon after May 1, when the tax was laid for the year, and the lessor sold the land to a purchaser, who agreed to pay half the tax for the year, the lessee is, nevertheless, liable to the lessor for the whole tax. Paul t>. Chickering, 117 265. 284. The tax for the year is deemed to be assessed on May 1, and the lessee is liable to pay that tax, where the lease expires on the fol- lowing July 1, although the valuation and rule of taxation are not definitely fixed until August. Amory v. Melvin, 112 83. See, also, Wilkinson v. Libbey, (1 A.) 83 375. 285. A covenant to pay taxes, in a lease of part of an estate, binds the lessee to pay a pro- portionate part of the tax laid upon the whole 'Wall*. Hinds, (4G.) 70 256. 286. And where the lease is of part of a building, the lessor may prove a usage to appor- tion the entire tax among the different tenants, according to the rent paid by each. Oodman v. Hall, (9 A.) 91 335; Amory «, Melvin, 112 83. 287. Where the lessor agrees to pay "all taxes " assessed upon the premises, and the lessee agrees to pay "all costs, expenses and charges, except the yearly taxes," an assess- ment for paving the sidewalk, which by statute, is imposed in terms upon the owner, as distin- guished from the tenant, is payable by the lessor. Torrey v. Wallis, (3 C.) 57 442; Twycross «. Fitchburg Railroad, (10 G.) 76 293, as explained in Codman v. Johnson, 104 491. 288. A covenant by the lessee to pay " all taxes and assessments," binds him to pay the entire assessment upon the premises, under a statute, for the expense of altering a street. Codman v. Johnson, 104 491. 289. And a statute providing for an assess- ment for betterments, and that the owner of leased property shall pay the assessment there- upon, and may thereafter collect from his ten- ant an additional rent, equal to ten per centum per annum upon such payment, does not affect the lessee's covenant to pay for all taxes and assessments, in a lease previously made; and such a covenant binds him to pay the better- ments assessment. Walker v. Whittemore, 112 187. 290. So where the covenant was to pay "rates, taxes, and duties of every kind, that shall be levied or assessed on the demised premises, or on the lessors of the same." Curtis v. Pierce, 115 186; Blake e. Baker, 115 188. See, also, Simonds ». Turner, 120 328. 291. Where a lease for ten years required the lessee to pay taxes, and he did so for two years, when the lessor agreed with him to pay the taxes, if he would pay the rent due, and there- after pay the rent promptly, and the lessor ac- cordingly paid them for five years thereafter, and sued the lessee for the tax of the fifth year, it was held that the lessee had no defence. Bowditch v. Chickering, 139 283. (3.) Repairs; rebuilding; redelivery In good condition. [.See, also, ante, IV, (2); V, (6); and post, VI, (7).] 292. A lessee may recover for a breach of the lessor's covenant to keep in repair, without pre- vious notice of want of repair. Hayden v. Bradley, (6 G.) 72 425. 293. An action upon such a covenant is not defeated by proof of negligence on the part of the plaintiff which contributed to the injury complained of, if the defendant was also guilty of negligence in failing to repair. Plynn v. Trask, (11 A.) 93 550. 294. Where the lease contains a written clause, providing that the buildings are to be "kept in repair and maintained in good condition" by the lessee, and printed clauses requiring him to deliver up the premises in as good condition as when received, reasonable use and wear, and fire and unavoidable casualties excepted, and to keep the buildings insured," etc., the lessee is not liable to repair injuries, occurring through ordinary use, or fire, or other unavoidable casualty. Ball v. Wyeth, (8 A.) 90 275. 295. A covenant to redeliver the premises in as good order and condition as when received, requires the lessee to make whatever repairs are necessary, to keep the premises in such order and condition, and in case of destruction of a. building by fire or otherwise, to rebuild within a reasonable time. Phillips v. Stevens, 16 238- Adams o. Nichols, (19 P.) 36 275; Jaques fl. Gould, (4 C.) 58 385; Tilden v. Tilden, (13 G.) 79 103. 296. Under such a covenant, where lessees were allowed to occupy part of the premises before their term began, in consideration of putting in new in place of broken glass, it was LANDLOED, ETC., VI, (3), (4), (5). 923 held that the new glass was in effect put in by the lessor, and the lessees were bound to replace it when again broken. Holbrook v. Chamberlin, 116 155. 297. Leaving ashes and rubbish on the pre- mises, is not a breach of a covenant for rede- livery in good tenantable repair. Thorndike v. Burrage, 111 531. 298. An express covenant to repair binds the covenantor to make good any injury, which human power can remedy. Leavitt v. Fletcher, (10 A.) 92 119 299. Where the lease contains a covenant by the lessor to make all necessary repairs " on the outside" of the building, and by the lessee 10 make all necessary repairs "on the inside," and to redeliver in as good condition as, etc. , the lessor is bound to rebuild a carriage house, which fell from the weight of snow upon it; and he is liable to an action for refusal so to do, out not for the injury to the lessee's carriages'. Leavitt i>. Fletcher, (10 A.) 92 119. 300. A covenant by the lessor, in a lease for a term commencing infuturo, to make repairs during Ihe term, does not bind him to repair a building, part of which was taken for a public improvement, before the term began. Prager v. Bancroft, 112 76. 301. The damages for a breach of a lessee's covenant to repair, and to surrender in as good condition, etc., are what it would cost to repair the premises, so as to put them in the condition in which they ought to be. "Watriss ». Cambridge Nat. Bk., 130 343. 302. But, sernble, that if the action is brought only on the covenant to repair, and pending the lease, the damages would be the diminution of the market value. "Watriss v. Cambridge Nat. Bk., 130 343. (4.) Qniet enjoyment. [See, also, ante, V, (5).] 303. A lease, containing no express covenant for quiet enjoyment, nevertheless- contains an implied covenant against any act of the lessor, to interrupt the quiet and peaceable enjoyment of the demised premises. Dexter v. Manley, (4 C.) 58 14. 304. Under a covenant for quiet enjoyment, the lessor is not liable for the act of a wrong doer, but only for an entry or interruption by one having lawful title. Ellis v. Welch, 6 246; Sherman i>. Williams, 113 481; Kimball «. Grand Lodge, etc., 131 59. 305. The laying out of a highway by the town is not a breach of the covenant, where the lessee has by statute a remedy against the town. Ellis e. Welch, 6 Williams, 113 481. 246; Sherman v. 306. But if the way had been laid out by the lessor, there would have been a breach; for an eviction by the lessor of the tenant from any portion of the premises, is a breach of the cov- enant, if the tenant chooses to remain, instead of treating the transaction as a total eviction, and abandoning possession. Sherman v. Williams, 113 481. See, also, Sprague a. Baker, 17 586, O'Keefe ii. Kennedy, (3 C.) 57 325; Whitney •». Dmsmore, (6 C.) 60 124; Estabrook v Smith, (6 G.) 72 570 307. A sublessee, under a lessee whose lease provides that it may be terminated by a sale, has no right of action against his lessor for breach of an implied covenant of quiet enjoy- ment, by a purchaser from the principal lessor, where the sublease provides for the contingency of the termination of the estate. O'Connor ii. Daily, 109 235. 308. Where A let a shop to B as tenant at will, and B underlet it to C by lease with a covenant for quiet enjoyment, and A threatened to eject C, unless paid his rent by C, whereupon C took a new lease frcm A; it was held that C had been practically evicted, and could recoup his damages from breach of B's covenant, in B's action for the rent. Holbrook v. Young, 108 83. 309. In a lease of a wharf, particularly de- scribing it by metes and bounds, followed by general words, including rights, privileges, and appurtenances, a covenant for quiet enjoyment will not be deemed to apply to the dock, so as to render the lessor liable for damages, for the lawful filling up, by the owner of the adjacent wharf, of a portion of the interveung dock. Davis s. Atkins, (9 C.) 63 13. (5.) Alterations and additions. 310. A covenant in a lease, that no alteration or addition shall be made to the pri mises, with- out the lessor's consent, does not relieve the lessee from liability to a third person, injured by falling into a cellar way, which is not prop- erly protected or guarded. Boston v. Worthington, (10 G.) 76 496 311 The repairing of a defect is not an alter- ation or addition, within the meaning of such a covenant Boston v. Worthington, (10 G.) 76 496. 312. The erection of a small wooden building on the back of the lot leased, although it could be removed without leaving any permanent traces that it had ever been on the premises, is a breach of a condition againtt alterations or additions, and forfeits the estate. Whitwell v. Harris, 106 532 313. But the erection by the tenant of a build- ing upon adjacent land, leased by him from an- other, which closes five windows on the leased premises, the right to close which is reserved to the lessor by the lease, is not a breach of such a condition. Atkins v. Chilson, (9 Met.) 50 52. 314. And the lessor has no right to complain of such an erection, while the lease is in force. Atkins v. Chilson, (7 Met.) 48 398. 315. Where the lessor gives notice that he enters for breach of the covenant against alter- 924 LANDLOKD, ETC., VI, (5), (6), (7), (8). ations and additions, he cannot maintain his writ of entry, by showing that the tenant has broken a condition to keep the premises in re- pair. Atkins «. Chilson, (9 Met.) 50 52. 316 Where premises used as a manufactory of carpet bags, were leased " to be used for the same purpose they now are,'' the use of them as a manufactory of caps is not such a material alteration as to determine the lease. Shumway v. Collins, (6 G.) 72 227. 317. "Where the lease is void within the statute of frauds, a subsequent agreement to pay a percentage upon additions and alterations to be made by the lessor, is also void. Bacon ». Parker, 137 309. (6.) Underletting; assignment. [See, also, ante, V, (3).] 318 Where a lease contains a condition against underletting, or permitting any other person to occupy without the lessor's consent, an agreement between the lessee and a third person, to assign the demised premises for the residue of the term, is not fulfilled by an as- signment executed by him, but not assented to by the lessor. Austin ». Harris, (10 G.) 76 296. 319 Where a lease contained a covenant against assigning without the lessor's consent, and it was assigned to A, with such consent, and afterwards by A to B, without such con- sent; it was held, that the covenant was waived, and B's title validated against A, as well as the lessor, by the lessor's acceptance of rent from him. Porter ». Merrill, 124 534. 320 A lessee cannot defend an action to recover possession, brought by a purchaser of his leasehold estate from his assignee in insolv- ency, on the ground that his lease contains a covenant against underletting, or permitting any other occupation, without the landlord's assent, or that the assignment to the purchaser has not been recorded. Bemis v. Wilder, 100 446. (7.) Abatement of rent. 321. Where rent is paid in advance for the full term of a lease, containing a clause, to the effect that if the building is destroyed by fire, the rent or a proportional part thereof shall be suspended or abated, until the lessor rebuilds, unless he elects to terminate the lease ; and, the building having been thus destroyed, the lessor elects not to rebuild; the lessee may recover back a proportionate part of the .rent paid. Bich«. Smith, 121 328. 322. Where a lease of mill property contains a similar provision as to abatement of rent, and a boarding house on the premises, used by the mill operatives, is destroyed by fire, the abatement is net limited to the rental value of the building destroyed, but includes any depre- ciation in the rental value of the remainder of the premises, caused by such destruction. Cary v. Whiting, 118 363. [i?or additional rulings as to the effect of destruc- tion by tire, see ante, IV, (2); V, (6); VI, (3).] 323. Under a lease stipulating for an abate- ment of rent in case ' ' the premises, or any part thereof, are destroyed or damaged by fire ... or other unavoidable casualty," so as to be " rendered unfit for use," etc., the lessee is not entitled to an abatement for an injury, caused by the neglect of the landlord to repair adjoining tenements, nor without proving that the premises were so rendered unfit for use, etc. Welles v. Castles, (3 G.) 69 323. 324. Under a lease of mill property contain- ing a similar stipulation, the lessee is not entitled to an abatement, where the water wheel of a mill broke down, in consequence of its having been rotten, old, and out of repair, when the lease was made, no proof being given of any special cause, sudden event, or accident, which led to the injury. Bigelow v. Collamore, (5 C.) 59 226. 325. Where a shop, held under a lease con- taining a similar clause as to abatement, until the premises should be put in proper condition by the lessor, was so injured by fire as to be unfit for use, and the lessor did not repair, and demanded full payment of the rent, which the lessee paid accordingly under protest, it was held that this was a voluntary payment, which he could not recover back. Regan v. Baldwin, 126 485. (8.) Other stipulation. 326. The lessee of part of a house, with a right "to have the improvement of all the homestead land," has no power to license a stranger to pass over the land for his own pur- Richardson v. Richardson, (9 G.) 213. 75 327. Where a lease stipulates that at the end of the term, the buildings erected by the lessee sh.ill be appraised by appraisers, chosen in a mode provided *for, and the lessor shall pay him the appraised value, the lessee may recover the value of the buildings, to be determined by the jury, if he has done all in his power, but ineffectually, to procure an appraisal as pre- scribed in the lease. Hood ». Hartshorn, lOO 117. 328. What acts are sufficient for that pur- pose. Hood ». Hartshorn, 100 117. 329. For rulings upon stipnlations in leases, for furnishing board to the lessor, see Morrill v. De la Granja, 99 383; Porter v. Merrill, 124 534. 330. For rulings upon stipulations in leases, relating to the furnishing by the lessor or the right by the lessee to furnish steam power, see Fisher v. Barrett, (4 C.) 58 381; Hardy v. Briggs, (14 A.) 96 473; Shorey ». Farrell, 1 14 441. LANDLOKD, ETC., VI, (8); VII, (1). 925 831. The lessor is not liable for damage to the lessee's goods, by the bursting of a water pipe in another part of the building, where the lease provides generally against such liability. Fera v. Child, 115 32. 332. A clause allowing the lessee of certain rooms in a building to place signs "upon the outer walls of said rooms," does not entitle him to remove the sign of another, already there, by the owner's license. Pevey ». Skinner, 116 129. 333. Under a clause authorizing the lessee to retain out of the first rents, and pay to A, the cost of floors, and "such further sums as the parties shall hereafter agree, or shall hereafter be determined," are due to A from the lessor, for work on the premises, the lessee may retain a reasonable and proper sum to pay his claim, although the amount thereof has not been agreed upon or determined, when the first rents are due. Hunt v. Thompson, (2 A.) 84 341 334. The tenant of part of a build ng, whose lease provides that he shall pay "the propor- tionate part of the expense of heating the bu.ld- ing by steam," is not liable for interest on the cost of the heating apparatus, the expense, of keeping it in repair, or its depreciation .n value. Stanwood ». Comer, 118 54. 335. A stipulation in a lease that any question in dispute, arising between the parties, during the term, shall be determined by the award of arbitrators, does not bar an action on the cove- nant to pay rent, without an offer to submit. Rowe v. Williams, 97 163. ,- 336. A provision in a lease that after seven years, arbitrators might determine the future rent, by an award " indorsed on the lease," is not satisfied by an award on a separate paper, annexed to the lease. Montague v. Smith, 13 396. 337. The lease of a mill, where the lessee covenants to pay rent for certain water power to be furnished by the lessor, and to put in all the machinery, "except the main shaft and wheel, which is to be furnished by the lessor," does not create any liability to pay the rent, until the lessor has furnished the shaft and wheel. Weed v. Crocker, (13 G.) 79 219. 338. And where the lessee agrees to pay as additional rent, a percentage on the cost of cer- tain additional buildings, to be erected by the lessor, the additional rent does not begin to run, until the lessee has had notice of the cost. Weed v. Crocker, (13 G.) 79 *19. 339. The stipulated time of payment of the rent, and the lessor's right to sue therefor, are not postponed by a provision in the lease, that, after sixty days default, the lessor may enter into possession. Rowe v. Williams, 97 163. 340. For rulings under a lease for 1,000 years, containing a provision for payment of the rent in iron and partly for certain years in gold bullion, with provisions for forfeiture, see Lilley «. Fifty Associates, 101 432. 341. For rulings upon questions of evidence, as affecting the damages in an action by the lessee against the lessor, for breach of a cove- nant to keep the premises heated during certain, months, see McC'ormick v. Stowell, 138 431. 342. A stipulation in a lease, that the lessor shall receive as rent a certain sum, for each 1,1)00 bricks manufactured on the land, and if day pipe, etc., is manufactured, then the rent shall be determined in another mode, does not imply a covenant that the lessee shall manufac- ture brick, or entitle the lessor to maintain an action for use and occupation if he does not. Smiley 11. McLauthlin, 138 363. VII. Landlord's Remedies. (1.) Action for rent. 343. A demand of rent, on the day it falls due by the terms of the lease, is not necessary to enable the landlord to maintain an action there- for, although it is payable in advance. Clarke v. Charter, 128 483. See* also, McGlynn i>. Brock, 111 219. 344. Where a tenant occupies premises, upon an agreement to pay rent, but neither the time nor the amount are fixed, and the landlord gives him notice to quit immediately, to which he assents and quits accordingly, no demand is necessary to enable the landlord to sue. Spauldinga. McOsker, (7 Met.) 48 8, 345. Under the practice act, as at common law, in an action for rent due under a lease, the plaintiff must declare upon the lease. Warren v. Ferdinand, (9 A.) 91 357; Burnham «. Roberts, 103 379; Bowen ». South Building Prop'rs, 137 274. See, also, Smiley v. McLauthlin, 138 363, cited, ante, art. 342. 346. Evidence to show that the rent agreed to be paid is more than the value, is inad- missible. Howland®. Coffin, (12 P.) 29 125. 347. Rent does not accrue to the lessor as a debt until the lessee has enjoyed the use of the land. Bordman ® Osborn, (23 P.) 40 295. 348 Occupation by one of two tenants, to- whom the land is leased jointly, suffices to ren- der both liable for the rent. Kendall v. Carland, (5 C.) 59 74. 349. Tenants in common, who have leased the estate held in common, may maintain a joint action on the covenant to pay rent, altho gh by an agreement annexed, half is payable to each. Wall v. Hinds, (4 G.) 70 *56. 350. Where a lessee covenants to pay rent in advance, if he is evicted by title paramount on the day when it is due, he is not liable to the lessor 'Smith*. Shepard, (15 P.) 32 147. 351. Where he has pa'd advance rent, he is not liable anew to a grantee of his lessor, who bouarht without notice of the payment. Stone v. Patterson, (19 P.) 36 476. 352. A receipt for a quarter's rent under a lease, raise the presumption of payment of the previons rent. Brewer v. Knapp. (1 P.) 18 332. 926 LANDLORD, ETC., VII, (1), (2). 353. If a lessee holds over after his term ex- pires, the law implies a new contract similar to the former,, although the landlord has died. Brewer v. Knapp, (1 P.) 18 332; Jaques v. Gould, (4 C.) 58 384. 354. But not as between the landlord and tffe tenant's surety. Brewer v. Knapp, (1 P.) 18 332. 355. An election by the lessee to continue to occupy for an additional term, at an increased rent, as provided in the lease, may be presumed from his continuing to occupy, and paying the next in talment at the increased rate. Kramer v. Cook, (7 G.) 73 550. See, also, Salisbury v. Hale, (12 P.) 29 416. 356. But where the lessee dies, and his widow continues to occupy, and the increased rent is paid Dy the administrator, the presumption is not conclusive. Bradford v. Patten,. 108 153. 357. Where rent is payable monthly or quar- terly, nothing is due until the quarter day ar- rives. Wood v. Partridge, 11 488; Fitch- burg C. Manuf'y v. Melven, 15 268; 268; Earle v. Kingsbury, (3 C.) 57 206. 358. And if the lessor recovers judgment for part of the rent for the stipulated period, an action for the remainder is barred. Warren v. Comings, (6 C.) 60 103. 359. The statute providing for an apportion- ment, does not declare when the rent is due, or by what acts it is created, vested, or transferred. Campbell v. Stetson, (2 Met,) 43 504; Warren v. Comings, (6 C.) 60 103. 360. As respects the liability of a stockholder of a corporation for its debts, where an instal- ment of rent, under a lease to it, becomes pay- able after he has sold his shares, it is not a debt contracted or accrued while he was a stocklioldpr Bordinan «. Osborn, (23 P.) 40 295. 361. Where, after mills and machinery have been leased for an entire rent, so much thereof as is real property is sold under an execution against the lessor, the lessee is liable to the pur- chaser for a proportionate part only of the rent. Buffum v. Deane, (4 G.) 70 385. 362. Where the lessee, before the quarter day, leaves the premises, and authorizes the lessor to enter and fit them for a new tenant, and he does so, it is for the jury to determine whether this is a contract to apportion the quarter's rent. Blake e. Sanderson, (1 G.) 67 332. 363. In an ,action for rent reserved in a writ- ten lease, the lessee may show, in defence, that after its execution it was orally agreed by the lessor, upon sufficient consideration, that for the future the rent should be reduced. Hastings v. Lovejoy, 140 261. 364. Where a lease provides for payment of a certain rent during the term, and " for such further time as the lessee may hold the same," a guarantor of payment of the rent stipulated in the lease, is liable for rent for the time the lessee may hold over. Bice v. Loomis, 139 302. (2.) Action for use and occupation, [See, also, ante, I; II; VII, (1).] 365. Where an oral agreement was made to lease, for a term of years, a building to be erected by the lessor; and the lessee, during the progress of the building, put up a sign to the effect that he would occupy it when completed; offered to let the chambers to different per- sons; and was there daily, giving directions, etc.; but upon completion refused to take the lease; it was held that he was not liable for use and occupation. Bacon'®. Parker," 137 309. 366. The lessor cannot recover for use and occupation, where there was a written lease; ard the fact that the plaintiff signed it upon the defenrJant's oral promise that it should be altered, so as to express their real agreement, will not make the lease conditional, and so support a recovery. Browning e. Haskell, (22 P.) 39 310. See, also, Bogle v. Chase, 117 273. 367. The heir of a married woman, whose husband's right expired upon her death, can maintain the action against the husband's le^e, who continues to occupy, if he has demanded rent from the latter; otherwise he cannot. Codman v. Jenkins, 14 93; George v. Putney, (4 C.) 58 351. 368. Where the parties to a written agree- ment for a Lase, have a difference as to their rights, and refer the difference to arbitrators, who award that the lessees may occupy the premises for a certain time, free of rent, and they occupy them accordingly; the agreement is merged in the award, but if they occupy the premises after the specified time, they are liabel in assumpsit for use and occupation. Knowles v. Shapleigh, (8 C.) 62 333. 369. An agreement for occupation, made on the Lord's day, followed by a subsequent oc- cupation, entitles the lessor to recover. Stebbins v. Peck, (8 G.) 74 553. 370. Where there was a question as to the defendant's occupancy and agreement as the plaintiff's tenant, the plaintiff claiming, that by agreement with him, he took the place of lessees under a written lease, whose term had not ex- pired; it was held that the fact that the plaintiff brought a suit, which was still pending, against the original lessees, was for the consideration of the jury. Bogle «. Chase, 117 273. 371. Where the defendant expressly under- took to occupy his own land as tenant to the plaintiff till August 1, pending an arbitration upon a difference between them, touching a contract to convey the land by the defendant to the plaintiff, and, the award being unsatisfac- tory to him, refused to fulfil it, and consented that the tenants in possession should remain, upon condition of their paying rent to him; it was held that there was no implied contract, upon which the plaintiff could hold him for use and occupation, after August 1. Boston o. Binney, (11 P.) 28 1. 372. In the absence of any special agreement, the law implies an agreement similar to the former lease, where the tenant holds over; upon which the lessor may recover for use and occu- pation. LANDLORD, ETC., VII, (2), (3), (4) 927 Brewer ». Knapp, (1 P.) 18 332; Sib- ley v. Brown, (4 P.) 21 137; Dimockfl. Van Bergen, (12 A.) 94 551. [See, also, ante, VII, (1).] 373. But where a lease was to one as princi- pal, and two as sureties, and the principal only holds over, the sureties are not liable. Brewer v. Knapp, (1 P.) 18 332. 374. So where one of two lessees occupies during the term, and continues to occupy after its expiration, during all of which time the other remains with him only as a boarder, the latter is not liable. / Theological Inst. v. Barbour, (4 G.) 70 329. 375. One who has entered by permission of joint owners, is liable for use and occupation to the survivors, although he entered under a lease executed by some of them only. Codman v. Hall, (9 A.) 91 335. 376. The heirs at law of the owner, who in his life had let the land to his illegitimate son, cannot maintain an action against the latter, for use and occupation continued after the father's death, under a claim of right, and in the belief that he was legitimate. Flood v. Flood, (1 A.) 83 217. 377. And assumpsit for use and occupation will not l.e, where the holding was under a title adverse to the plaintiff's. ' Fletcher v. McFarlane, 12 43; Allen v. Thayer, 17 299; Kittredge v. Peas- lee, (3 A.) 85 235. 378. So where there was no evidence that the user was by the plaintiff's permission. Central Mills v. Hart, 124 123. 379. Rent, agreed to be paid under a parol demise, could formerly be recovered under a general count for use and occupation, and can now be recovered under a count on an account annexed. Bowen*. South Building Prop'rs, 137 274. See, as to pleading before the practice act, Codman v. Jenkins, 14 93; Eaton ». Dugan, (21 P.) 38 538; Gould i>. Thomp- son, (4 Met.) 45 224. 380. Except for the purpose of showing title to real property by a written lease, oral testi- mony is competent to show, that an agreement for use and occupation, not under seal, signed by A, was in fact made by him in behalf of B, and that he was authorized to make it. Bowen v. South Building Prop'rs, 137 274. 381. One in possession of a building, adapted for use as a foundry and machine shop, and furnished with power from a water wheel be- longing to the owner of the building, is liable for the fair rental value of the building as a machine shop and foundry, after notice from the owner that he shall hold him so liable, if he continues thereafter to occupy it, although he uses it for storage only. Horton v. Cooley, 135 589. 382. An action for use and occupation will not he against an assignee in insolvency, merely u P° n Proof that the insolvent's goods were allowed to .remain on the premises for two months, during which time the assignee entered with workmen, who were occupied several days in removing the goods. "Wales v. Chase, 139 538. [As to the liability of an assignee in insolvency, see Insolvent, arts. 219, 234, 254.] (3.) Ejectment; re-entry; writ of entry. [See Condition, II, (3) ; Keal Action.] (4.) Statutory action to recover posses- sion, [See, also, Forcible Entry and Detainer, I; Mortgage, V, (6). As to these proceedings against a tenant at will or at sufferance, including the notice required, see ante, II, (1) ; and II, (2;. As to notice to quit in general, see ante, III.] 383. Fourteen days notice to quit for non- payment of rent due on a lease at will, entitles the landlord to maintain this action, without a demand of the rent. Kimball v. Rowland, (6 G.) 72 224; Borden v. Sackett, 113 214. 384. This action may be maintained in such a case, although the landlord is indebted to the tenant in a greater sum than the amount of the rent. Borden «. Sackett, 113 214. 385. In order to maintain these proceedings, the parties must occupy the relation of landlord and tenant; or, if the reversion or the term has been transferred, there must be a privity of estate between the parties, derived from the grantor of the reversion, or the assignor of the term. Howard v. Merriam, (5 C.) 59 563; Whitney v. Dart, 117 153; Lawton v. Savage, 136 111. 386. In order to maintain these proceedings, the plaintiff cannot rely upon possession and payment of rent, after producing a written lease, the execution of which he fails to prove. Barry v. Ryan, (4 G.) 70 523. 387. The relation of landlord and tenant, sufficient to maintain these proceedings, does not exist between mortgagor and mortgagee, even after entry by the latter under a judgment, and a continued possession by the former, tem- porarily and by the latter's permission. Larned v. Clarke, (8 C.) 62 29. Upon this subject, see, also, ante, I. 388. They cannot be maintained by the owner of ihe equity of redemption, against one who entered as his tenant, but, before the expiration of his term, took a lease from the equitable assignee of the mortgage, where the term under the original lease has expired. ChamberlaSn v. Perry, 138 546. 389. One who has leased land to another for a year, in consideration of the lessee taking care of certain trees thereupon, cannot maintain this action for the latter's neglect, without a previous notice to quit. Gleason v. Gleason, (8 C.) 62 32. [Thntthe action does not lie against an occupant under an agreement for a c.ced, sve ante, ml, S3.] 928 LANDLOED, ETC., VII, (4). 390. A grantee of land is not estopped from maintaining the action, against one in occupa- tion as tenant at will, at the time of the convey ance, who has been duly notified to surrender, by his serving a notice to determine an invalid lease, and a notice to quit for noupayment of rent. Melley v. Casey, 99 241. 391. Nor by his bringing actions to recover for the prev.ous and subsequent use and occu- pation of the premises, and being paid theretor. Blish v. Harlow. (15 G.) 81 316. 392. Nor by the fact that the plaintiff and de- fendant were joint tenants at will, where the pla ntiff obtained a lease, vacated the premises, and brought the action, the defendant being then in exclusive possession Casey v King, 98 503. 393. Nor by the defendant's discharge, under the United States bankrupt law. Crosby v Wentworth, (7 Met.) 48 10. 394. Evidence offered by the defendant to show, that the lessor of the plaintiff never had title to the premises, has no tendency to show that he did not occupy as tenant of the lessor; and if he did so occupy, he is estopped in this action to deny his landlord's title. Gage v Campbell, 131 566. See, also, Coburn « Palmer, (8 C.) 62 124; Towne v. Butterfield, 97 105. 395 If the action is brought against a tenant at sufferance, after notice to quit, and before he has had a reasonable time to remove, that does not render the notice incompetent as evidence, but is matter of defence. Hooton v. Holt, 139 54. 396. Where, after breach of the condition of a mortgage, the mortgagor paid it, but after- wards the mortgagee entered to foreclose, and notified the mortgagor's tenant not to pay rent to the mortgagor, and the latter brought this action against the tenant, who set up the mort- gagee's title, it was held that the action could be maintained Baker v Gavitt. 128 93. 397. If a tenant at sufferance holds possession unlawfully, by force, he is immediately liable to these proceedings. Kinsley ». Ames, (2 Met.) 43 29, Hollis v Pool, (3 Met ) 44 350. I *s to the notice required m. general, see ante, II, (8)0 398. Semble, that under the existing statute, the landlord's entry does not prevent this action. WhitweL v. Harris, 106 532. 399. /fliter, under the R. S. Fifty Associates v. Howland, (11 Met.) 52 99. 400. Where A was in possession as tenant at will, of B, who claimed title under C, and D levied an execution on the land, alleging that the deed to B was void, these proceedings will not lie in favor of D against A, the question of title between B and D being undetermined. Green v. Tourtellott, (11 C.) 65 227. 401. Semble, that the action cannot be main- tained upon proof that the plaintiff, and one under whom the defendant hold?, are ten- ants in common, and that the plaintiff gave the defendant notice to quit the whole estate. King v. Dickerman, (11 G.) 77 480, as explained in Presbrey v. Presbrey, (13 A.) 95 281. 402. A determination of the plaintiff's estate, pending the action, does not abate it, and he is entitled to judgment for the rent and costs, or such other judgment as the case requires. Coburn v. Palmer, (8 C.) 62 124; Blish v Harlow, (15 G.) 81 316, King v. Lawson, 98 309; Casey v. King, 98 503; Hooton «. Holt, 139 54. 403. So where the plaintiff has taken posses- ion pending the action. Crosby v. Wentworth, (7 Met.) 48 10; Hayden v. Ahearn, (9 G) 75 4S8; Hebron Church v. Adams, 121 257. 404 Where the owner of land, having upon it a house occupied by a tenant at will, conveyed the land, orally reserving the right to move the house within six months, and the tenant continued in possession, paying rent to him, until after the expiration of the six months, and continued in possession after a conveyance by the grantee; it was held that the second grantee might maintain the action Hayden » Ahearn, (9 G.) 75 438. 405 A judgment for the tenant, in an action commenced on the 22d of September, is not a bar to a subsequent action commenced on the 29th of September, a.though proof is given that no new r.otice was given after the 22d. Thayer v. Carew, (13 A.) 95 82. 406. Occupation by a tenant at will is not such a disseisin or adverse occupation, as to require an actual entry by the owner, or his grantee or lessee, to enable the latter to take these proceedings. Alexander v. Carew, (13 A.) 95 70. 407. After the estate of a tenant at will has been determined by notice to quit, one who has been put in possession by the owner, although secretly and under an invalid lease, is a tenant at wid of the owner, and may main- tain these proceedings against the former tenant who has regained possession. Walker v. Sharpe, (14 A.) 96 43. 408. A plea that the respondent "is not in possession of the premises demanded," is bad on general demurrer; and the complainant is entitled to judgment on the merits. Davis v. Alden, (12 C.) 66 323. 409. Under an answer denying that he holds the premises unlawfully, or against the plaint- iff's right, the defendant m^y show that he has been in adverse possession for three years. Mitchell » Shanley, (12 G ) 78 206. 410. In order to save the forfeiture, where notice to quit is given for nonpayment of rent, it is sufficient to tender the rent, without the taxes, paid by the lessor, although the lease contains a covenant that the lessee shall pay taxes. Hodgkins v. Price, 137 13 |As to what constitutes a ground of abatement of these proceedings, see Abatement, I, (1); as to an appeal therein, see Appeal, II, (2).l LAND OWNEE. 929 Land Owner. [For other rule3 as to the rights, duties, and liabili- ties of a land owner, see Boundary Limb, Condi- tion I, (1),Dekd. Easement, IV Highway, Ice; Landlord and Tenant, IV, (1); IV, <2) Negli- gence, Nuisance. Party Wall, Real Prop- erty Town and City Water Course.1 1. One who digs a pit on land, his own or another's, so that by the operation of natural and ordinary causes, which he takes no precau- tion to guard against, the land of another falls into the pit, is liable to the latter for the injury to his land, in its natural state; but not, without proof of actual negligence, for injuries to build- ings, fences, shrubbery, and other improve- ments. Gilmore v. Driscoll, 122 199. See, also, Thurston «. Hancock, 12 220; Foley v. Wyeth, (2 A.) 84 131; White ». Dresser, 135 150. 2. Injuries done in the making of a highway are regulated by statute, not the rules of the common law. Gilmore v. Driscoll, 122 199, ex- plaining Hartshorn «. Worcester, 113 111; Marsden » Cambridge, 114 490. 3. One who excavates on his land in such a manner as to let in the sea, which undermines and injures the adjoining land of another, is liable to the latter for the injuries so caused, including injury to a well from the percolation of salt water. Mears v. Dole, 135 508. See, also, Cormn. v. Alger, (7 C.) 61 53; Wilson v. New Bedford, 108 261. 4. As to the right of the injured person to ' maintain a bill in equity in such a case, see Mears » Dole, 135 508; cited Equity Jurisdiction, arts. 45, 46. 5. So where one makes a drain upon his own premises, so as to set the water back and over- flow his neighbor's land. Rockwood v. Wilson, (11 C.) 65 221. 6. Or to let the sea water into his neighbor's Sturges v. Theo. Ed. Soc, 130 414. 7. A person is liable for injuries, caused by the percolation through the earth, of water, artificially introduced or accumulated upon his land, into the cellar, or well, or upon the vegeta- tion, of a neighboring proprietor. Fuller v. Chicopee M. Co., (16 G.) 82 43, Wilson v. New Bedford, 108 261; Mears v. Dole, 135 508. 8. And this, although the adjoining pro- prietor conveyed the land, for the purpose of erectinga reservoir thereupon Wilson v. New Bedford, 108 261. 9. So one who maintains a vault, so that, with his knowledge, filthy water habitually percolates from it, either above or below the surface of the ground, into his neighbor's cellar or well, is liable without other proof of negli- gence. Ball «. Nye, 99 582. 10 One who builds a drain from his own premises into a common sewer, into which the tide ebbs and flows, so carelessly, that by loosen- mg the earth, he causes water to escape at high ~~— Vol, 1—117 tide into the cellar of another, connected with the sewer, is liable to the latter. Hawkesworth v. Thompson, 98 77. 11. But a land owner is not liable for not pre- venting surface water from accumulating upon his land, and flowing thence upon the adjoining land of another. Morrill i>. Hurley, 120 99. I See, also Water Course, 1.1 12 One who builds a dam across a stream subject to extraordinary freshets, is bound to construct it so as to resist such fnshets, although they occur only once in several years. Gray v. Harris, 107 492, explaining Shrewsbury v. Smith, (12 C.) 66 177. 13 Where A, who owned land upon both sides of a highway built upon an embankment, made a Written agreement with B, that B should build a dam along the upper side of the high- way, to raise a water power for a mill; and B built the same with an aperture and flush boards, to allow the water to pass under the highway through a culvert; and afterwards A sold the land, with the dam and mill; and a freshet came while the flush boards were on, and the gate closed, and broke down the dam and washed away the highway; it was held, in an action by the town, that A was not liable for B's unskilfulness. that neither A nor B was liable for the injury, or for any other damage, caused by closing the gate, etc. ; but if the dam broke in consequence of decay, etc., A's grantees were liable Wendell v Pratt, (12 A.) 94 464. 14 It is the duty of every land owner to keep the buildings or structures upon his land, in such a condition that they shall not, by falling, injure property or persons lawfully upon adjoining land, but where the condition of his structures has been changed so as to render them injurious or dangerous by ms major (in this case a fire), or the act of a third person, he is not so liable, until after the lapse of a reason- able time to make them safe Mahoney v Libbey 123 20, Gor- ham v. Gross 125 232 15. A person who. for his own purposes, brings upon his land and keeps there, anything likely to do mischief if it escapes must keep it in at his peril. Gorham v Gross, 125 232 See, also, Shipley ® Fifty Associates, 106 194; Gray v Boston Gas L. Co , 1 14 149, Gorham s Gross. 117 443 . 16. The owner of land, who employs a mason to build a party wall, half on his land, and half on his neighbor's, is liable :n tort to the latter, for an injury, caused by the fall of the wall, after it has been completed and accepted, result- ing from its defective condition whether the negligence was his own, ct th<3 mason's. Gorham «. Gross, 125 232. ' 17 A mason who is constructing for the land owner, a wail abutting on the highway, is liable for an injury caused to a passer by on tne high- way by a falling brick, if he provides no safe- guards. Jager «. Adams, 123 26. 18 No action lies for excavating one's own land within a foot or two of the public street, 930 LAND OWNEK— LAECENY, I, (1). and not taking any precaution against falling into the pit, whereby a passenger in the street, at night, fell in. Howland v. Vincent, (10 Met.) 51 371. See, also, Boynton v. Rees, (9 P.) 26 528; Tourtellot v. Rosebrook, (11 Met.) 52 460; Brown «. Kendall, (6 C.) 60 292, Rockwood ». Wilson, (11 C.) 65 221. 19 As to the liability of a city in a similar case, see Oliver r>. Worcester, 102 489, and Town and City. V, (I). 20 One whose land has fallen into an exca- vation, made by an adjoining land owner on his own land, cannot recover damages for injury to his feelings, although the defendant was guilty of gross carelessness, and the plaintiff had prepared his land for a burial ground. White v. Dresser, 135 150. [As to damages, generally, see Damages, I; IV, (5).] 21. One who negligently sets a fire upon his own land, or keeps it negligently, is liable for any injury done by the spreading and commu- nication of the fire directly to the land of another, either through the air or along the ground, and whether he might or might not have reasonably anticipated the particular man- ner and direction, in which it is actually com- municated. Higgins v. Dewey, 107 494. See, also, Barnard v. Poor, (21 P.) 38 378; Tourtellot v. Rosebrook, (11 Met) 52 460; Perley v. Eastern Railroad, 98 414. 22 And the testimony of one experienced in clearing land by fire, that there was no proba- bility that a fire thus set" would have spread to the plaintiff's land, is insufficient to disprove his negligence. Higgins v, Dewey, 107 494. See, also, White v. Ballou, (8 A.) 90 408;. Luce v. Dorchester Ins. Co., 105 297. 23. Where there were two dwelling houses on the same lot, one in the front and one in the rear, with a passage way to the latter, and the tenant of the latter put up a sign on the front build- ing, with the consent of the tenant thereof, but without the landlord's knowledge, in such a manner as to mislead one having occasion to call upon him, to enter by a storm door, leading to a cellar, where the landlord had made an ex- cavation, whereby he fell into the excavation, and was injured, it was held that the landlord was not liable. Mistier v. O'Grady, 132 139. 24. As against adjoining proprietors, the owner of land may plant trees upon it, or cover it with a thick forest; and the injury to them thereby is damnum absque injuria. Bliss v. Ball, 99 597. 25 One who conveys a portion of his land by metes and bounds, sb that the boundary line runs through a barn, may maintain an action against the grantee, who cuts off the part of the barn standing on his land, for the loss of sup- port and shelter to the remainder. Adams v. Marshall, 138 228. 26. One who digs a well on his own land, is not liable to his neighbor, by reason of the dimi- nution thereby of the water in the latter's well. Greealeaf v. Francis, (18 P.) 35 117. Lapse. [Of devise or bequest, see Devise and Bequest, V. Of time, see Accord and Satisfaction; Ad- verse Possession ; Evidence, IV; Judgment, IV; Laches; Limitation; Payment; Reasonable Time;|Vendor and|Vendee,JII. Larceny. I. Larceny in general, or simple Lar- ceny. (1.) The crime. (2. ) Seizure and restoration of stolen property. (3.) Punishment. II. Particular Kinds of Larceny; common Thief. (1.) In a building or vessel. (2.) From the person. (3.) Common and notorious thief. III. Evidence and Rulings at the Trial. [For matters relating to the form and sufficiency of the indictment, see Indictment, VIII, (48). As to the distinction between larceny and embezzlement, see, also, Embezzlement. Por additional rulings on this subject, or analogous cases, see Burglary; Conviction and Sentence; Embezzlement; Trial, IV.] I. Larceny in general, or simple Lar- ceny. ll.) The crime, [As to the necessity of alleging and proving that the party charged took and carried away the per- sonal property of another, with intent to steal the same, see Indictment, arts. 622, 623.] 1. It is not larceny for one to take another's property in an honest belief that he had the right to do so, although he had no such right. Comm. ■». Stebbins, (8 G.) 74 492. 2. But one who takes another's money with intent to appropriate it to the payment of a note which he held against the other, takes it with intent to appropriate it to his own use. Comm. v. Stebbins, (8 G.) 74 492. 3. One who wrongfully takes into his posses- sion an article not his own, without intent to convert it to his own use, commits a trespass only. Comm. «. White, (11 C.) 65 483. 4. And in many cases, the subsequent fraudu- lent appropriation and conversion of goods, possession of which has been rightfully ob- tained, does not constitute a felony. Comm. v. White, (11 C.) 65 483. 5. But if one who, by committing a trespass, has tortiously and unlawfully obtained posses- sion of another's property, afterwards conceives the purpose of fraudulently depriving the owner of it, and, in pursuance thereof, and with a felonious intent, carries it away and converts it to his own use, this is larceny. Comm. v. White, (11 C.) 65 483. 6. And, in such a case, he may be convicted in the county where he committed the original trespass. Comm. «. White, (11 C.) 65 483. LAEOENY, I, (1). 931 7. If the finder of lost goods takes them with- out a felonious intent, his subsequent conver- sion of them to his own use is not larceny, whatever his intent may he; but if, when he takes them, he knows, or has the means of knowing, who the owner is, yet intends to ap- propriate them to his own use, this is larceny. Comni. i>. Titus, 116 42. 8. The intent to convert an article to his own use, extends to all articles which the party ob- tained by the same means, although they were not ihe object for which he engaged in the un- dertaking; thus, one who steals a coat, steals also whatever'may be in the pockets. Comm. v. Lawless, 103 425. 9. A miller who receives barilla to grind, and fraudulently retains a part of it, supplying its place with plaster of Paris, commits larceny. Comm. v. James, (1 P.) 18 375. 10. The questions which have arisen, whether the acts of a bailee amount to larceny, or only a breach of trust, do not arise where "the person who takes the property is the bailee's servant or laborer. Comm. i). Brown, 4 580; Comm. n. Doane, (1 C.) 55 5. 11. Taking a horse, with intent to conceal it ■until the owner should offer a reward, and then to return it and claim the reward, or with intent to purchase it at less- than its value,, is larceny. Comm. v. Mason, 105 163. 12. Where one obtains possession of goods, ■with intent to convert them to his own use, and the person paring with the possession, intends to part with that only, and not the title, the offence is larceny. Comm. v. Barry, 124 325. 13. As to the distinction between larceny, embezzlement, and obtaining by false pretences, where one obtains another's property with his consent, see Comm. v. Barry, 124 325. 14. One who remains at night down stairs in his own house, while his confederate mounts the stairs, enters the sleeping room of a lodger, and takes and brings down stairs the lodger's money, and there delivers it to the former, is guilty of larceny as a principal. Comm. v. Lucas, (2 A.) 84 170. 15. It is no defence to an indictment for lar- ceny, that the money stolen was acquired by the unlawful sale of intoxicating liquor, or that the liquor stolen had been bought to sell unlawfully. Comm. n. Rourke, (10 C.) 64 397; Comm. n. Coffee, (9 G.) 75 139. 16. Where a gas company has closed a cus- tomer's service pipe and removed its meter, it is larceny of the gas for him to secretly open the service pipe, and connect it with another, so as to supply his house with gas. Comm. v. Shaw, (4 A.) 86 , 308. 17. Where the defendant, by falsely per- sonating A, w ho had left a watch in a shop to he repaired, obtained the watch, with felonious intent, this is larceny. Comm. ■». Collins, (12 A.) 94 181. 18. As to obtaining property by false person- ation of another, see, also, Comm. u. Lawless, 103 435; Comm. ^.Whitman, 121 361. 19. So where one changes the checks on his valise and on another's trunk, and thereby ob- tains the latter from the baggageman of a rail- road company, this is larceny. Comm. ii. Barry, 125 390. 20. The fact that the articles stolen belonged to a national bank, of which the defendant was an officer, and so was liable to punishment for embezzlement under the act of congress, does not relieve him from punishment by the -courts of a state. Comm. v. Barry, 116 1. 21. Semite, that one may be indicted for larceny for taking articles from the body of an unknown dead man. Wonson v. Sayward, (13 P.) 30 402. 22. A memorandum book, given by a tailor to a workman by the piece, in which the latter enters the work and the price thereof, is a "book of accounts, for or concerning money," etc., within the statute of larceny, and is the workman^ property. Comm. n. Williams, (9 Met.) 50 273. 23. And a receipt to A by B, whom C has promised to pay for work, stating that A has paid for the work, and B has no claim therefor on C, is a "receipt" or "release" within the statute. Comm. v. Williams, (9 Met.) 50 273. 24. Bank bills redeemed by the bank, and in the hands of its agents, are the subject of larceny. Comm. n. Rand, (7 Met.) 48 475. [See, further, on the subject of bank bills, etc . Indictment, III, (3). jVs to when animals and birds are thesubject of larceny, see Ajsimal, etc, I.] 25. It is no objection to putting a person on trial for larceny that he is deaf and dumb. Comm. 11. Hill, 14 207. 26. Where property is stolen in one county, and carried by the thief into another county, he may be indicted in either county, whether the property was the subject of larceny at com- mon law, or only by statute. Comm. v. Rand, (7 Met.) 48 475. 27. So where property stolen in one county, by two persons, is brought into another county by one of them, and the other thief follow* him into the latter county, and there assists in the custody and disposition of the goods, both are guilty of larceny in the latter county. Comm. v. Dewitt, 10 154. 28. By analogy the same rule applies, where property is stolen in another state of the Union, and brought into this Commonwealth by the thief: in such a case he may be punished here, the transaction being regarded as a new taking and asportation here. Comm. v. Cullins, 1 116; Comm. i\ Andrews 2 14; Comm. v. Lord, cited in 2 16; Comm. ■». Holder, (9 G.) 75 7; Comm. 11. Macloon,. 101 1; Comm. r. White, 123 430. 29 So a thief may be indicted here, who serds into this Commonwealth by an innocent agent, goods stolen by him in another state. S Comm. v. White, 123 430. 932 LAKCENY, I, (2), (3); H, (1). 30. But the bringing into this Commonwealth of goods stolen in a foreign country, is not larceny here Comm. v. Uprichard, (3 G.) 69 434; Comm. «. Holder, (9 G.) 75 7. (2.) Seizure and restoration of stolen property. 31. The right of the owner to a summary restitution of stolen property under the statute, is limited to the articles stolen, and does not extend to money into which they have been changed by the thief. Comm. v. Boudrie, (4 G.) 70 418. 32. If the defendant is discharged, it is the duty of the officer to restore to him, upon de- mand, the goods taken from him as having been stolen; and the fact that the complainant has afterwards obtai.ied judgment against the officer by default for the conversion thereof, is no defence to an action against the latter by the defendant for a conversion. Fitzgerald v. Jordan, (11 A.) 93 128. 33. Under a warrant in the usual form, upon a complaint for larceny, the officer is authorized to break, and enter the shop of the person accused, to seize the goods alleged to have been stolen. Banks v. Farwell, (31 P.) 38 156. 34. If the officer takes from the person arretted other property than that alleged to have been stolen, and rdf uses to deliver it up on de- mand, and retains possession of it two years after the defendant's convi tion, he is liable in damage's; and if the property is a promissory note, the maker of which has in the meantime become insolvent the measure of damages is the value of the note at time of the conversion, with interest. King v. Ham, (6 A.) 88 298. (3.) Punishment. [See. also, Conviction and Sentence.] 35. If, upon the trial of an indictment for larceny of several articles, worth in all more than $100, but each worth less than that sum, a general verdict of guilty is returned, under instructions which re.ider it possible, that the jury found the defendant guilty of stealing one article only, the supreme judicial court may affirm the verdict, if the attorney for the Com- monwealth will move for judgment, as upon a conviction for stealing property not exceeding $100 in value. Comm. ». Lawless, 103 425. 36. The punishment which the common pleas might inflict, under the E. S., where the value of the property did not exceed $100, was not affected by the concurrent jurisdiction given to justices of the peace, where it did not exceed $15. Comm. v. McKenney, (9 G.) 75 114. 37. Under the R. S., if an indictment for stealing in a dwelling house, etc. , property of less value than $100, did not allege that the offence was committed in the day time, the de- fendant could be punished only for a simple larceny. Haggett v. Comm., (3 Met.) 44 457; Hopkins v. Comm., (3 Met.) 44 460; Tully v. Comm., (4 Met.) 45 357; Hutchinson «. Comm., (4 Met.) 45 359. 38. Under the R. S., the offence of breaking and entering, in the night time, a house not occupied as a dwelling house, and stealing therefrom goods, less than $100 in value, was punishable only as simple larceny. Wilde v. Comm., (2 Met.) 43 408. II. Partictjlak Kinds op Larceny; common; Thief. (1.) In a building or a vessel. 39. To constitute this kind of larceny, it is not enough that the property stolen was in a building; the property must have been under the protection of the building, placed there for safe keeping; and not under the eye or personal care of some one in the building. Comm. ■». Lester, 129 101. See, also, Comm. v. Smith, 111 429. . 40. Thus the offence is not committed where the defendant, pretending to be a customer, asked a shopkeeper to look at a watch, and while his attention was diverted, ran away with it. Comm. v. Lester, 129 101. 41. But where a police officer is hidden at night in a shop to detect a thief, the stealing of an article in its usual place therein is larceny in a building. Comm. v. Kott, 135 269. 42. And where a lodger in a dwelling house, in the night took a key from his room mate's pocket, while the latter was asleep in bed, opened therewith the latter's trunk, took out money, relocked the trunk and replaced the key, it was held that the money was under the protection of the house, and this crime was committed. Comm. v. Smith, 111 429. 43. "A refreshment saloon'' is not a suffi- cient specification of a building in the indict- ment. Comm. v. Mahar, (8 G.) 74 469. 44. But "a building, called and being a shop," suffices, although it is called a "store." Comm. v. Riggs, (14 G.) SO 376. See, also, Comm. ■». Annis, (15 G.) 81 197. 45. See, further, as to the description of the building, Comm. v. Williams, (2 C.) 56 582; Comm. v. Smith, 111 429. 46. One convicted under an indictment for larceny in a building, where the building is not properly described, maybe sentenced for simple larceny. Comm. v. Hathaway, (14 G.) 80 392. See, also, Comm. ». Eastman, (2 G.) 68 76; Comm. v. Mahar, (8 G.) 74 469. LARCENY, II, (1), (2), (3); III. 933 47. So where the indictment charges larceny in a certain building, and the proof shows lar- ceny in another building, if both are in the same county. Comm. v. Lavery, 101 207. " 48. A wife cannot commit this offence in her husband's building, under St. 1851, Ch. 156, §4. Comm. ». Hartnett, (3 G.) 69 450, explaining the statute of 1851, and Comm. v. White, (6 C.) 60 181. 49. The former statutes took a distinction between stealing from a vessel in the day time, and in the night time; for rulings thereunder, depending upon this distinction, see Hopkins v. Comm., (3 Met.) 44 460; Comm. •». McLaughlin, (11 C.) 65 598. (2.) From the person. 50. The commission or punishment of this crime does not depend on the value of the ar- ticles taken, and the jury need not find the value. The inspection of the articles by the jury is proper, for the purpose of ascertaining that they are of some value. Comm. v. Burke, (13 A.) 94 182. 51. Nor is it necessary, under an indictment for an attempt to commit this crime, that there was property, capable of being stolen, upon the person of the individual, against whom the at- tempt was made. Comm. v. McDonald, (5 C.) 59 365. 52. As to the sufficiency of an indictment for an attempt to commit this crime, by thrusting the hand into another's pocket, see Ccmm. v. Bonner, 97 587; Comm. v. Sherman, 105 169. 53. Under the existing statute, this crime may be committed, although the taking is neither open and violent, or privy and fraudu- lent; or, although it is with the knowledge, and without the dissent or resistance, of the owner. Comm. v. Dimond, (3 C.) 57 235. 54. An indictment against three, for an at- tempt to commit the crime, which alleges that they thrust "their hands" into a person's pocket, is sustained by proof that one thrust his hand, the others being present and partici- pating. Comm. «. Fortune, 105 592. 55. The offence itself can be committed, only where the article sought to be taken was within the defendant's full custody and control; but if it was within the defendant's grasp, though but for an instant, and he was prevented by inter- ference from removing it from the pocket, the offence is complete. Comm. ■». Luckis, 99 431. 56. For a ruling upon evidence, which raised a doubt upon that question, see Comm. v. Luckis, 99 431. 57. This crime is punishable in the common «! ea S or mum raP a l court, by imprisonment in the State prison, although the property does not exceed $5 in value. Comm. v. Nolan, (5 C.) 59 288. See Jones «. Robbins, (8 G.) 74 329; Lewis «. Robbins, (13 A.) 95 552. (3.) Common and notorious tlilef. [See, also, Conviction and Sentence, IV.] 58. One convicted of three distinct larcenies at the_ same term of the court, must receive a consolidated sentence as a common and notori- ous thief; separate judgments on separate con- victions are erroneous. Haggett v. Comm., (3 Met.) 44 457. 59. A conviction upon an indictment contain- ing three counts, each describing different prop- erty and different owners, but each alleging an offence on the same day, is not a conviction of three distinct larcenies within the statute. Stevens«. Comm., (4 Met.) 45 360. 60. Nor is a conviction upon an indictment, which charges in one count breaking and enter- ing a building, with intent to steal, and stealing therein, to be counted as one of the three; in such a case the larceny is merged in the bur- glary, and the sentence must be for the latter offence. Kite 1). Comm., (11 Met.) 52 581. See, also, Comm. ■». Hope, (22 P.) 39 1. 61. JiutseinMe, that convictions for aggravated larcenies under the R. S. may be so counted. Comm. v. Hope, (22 P.) 39 1. 62. A sentence as a common and notorious thief is regarded as one conviction upon an ag- gregate offence, and is one of the convictions sufficient to found the sentence to additional punishment. Ex parts White, (14 P.) 31 90; Plumbly v. Comm., (2 Met.) 43 413. 63. To warrant an additional sentence to a person previously convicted of larceny, it is not necessary that the court should, in terms, adjudge him to be a common and notorious thief. Rice®. Comm., (12 Met.) 53 246. 64. As to the extent of the sentence under the former statute, now obsolete, see Shepherd v. Comm., (2 Met.) 43 419. III. Evidence and Rttlings at the Trial. 65. If two are jointly indicted for larceny, and one pleads guilty, the other cannot be convicted, except upon proof that he was a joint actor with the former in the same larceny: and proof of a conversation between the two, consistent with the hypothesis that each had committed a separate larceny, is not sufficient. Comm. v. Jones, 136 173. 66. Possession of part of the stolen goods, even if not precisely identified, is evidence of the larceny of all. Comm. v. Millard, 1 6; Comm. v. Montgomery, (11 Met.) 52 534; Comm. v. Parmenter, 101 211; Comm. v. Randall, 119 107. See, also, Comm. «. Deegan, 138 182. 67. Evidence of the possession of money by the defendant, immediately alter a larceny of money, of the same general character as that of 934 LAECENY, III. the money stolen, and of his previous destitu- tion, may be considered by the jury. Comm. v. Montgomery, (11 Met.) 52 534. 68. Evidence is competent that goods, found in the defendant's possession, were stolen at the same time with the goods described in the indictment, and the goods so found may be exhibited to the jury, and taken into the jury room. Comm. v. Riggs, (14 G.) 80 376. 69. Where stolen goods were found in the defendant's outbuilding, the defendant's refusal to permit a search is competent upon the ques- tion of his guilty knowledge. Comm. v. Bell, 102 163. 70. Evidence that stolen goods were found with the defendant's property, in a room to which he had access, is competent. Comm. n. Parmenter, 101 21,1. See, also, Comm. v. Annis, (15 G.) 81 197. 71. Where the government proves the de- fendant's confession, tending to show that soon after the larceny he was in possession of some of the stolen property, and gave it to his mother, he may show that his mother never had it. Comm. v. Howe, (2 A.) 84 153. 72. Proof of an embezzlement will not sustain an indictment for larceny, and vice versa, although the statute declares certain embezzle- ments to be larceny. Comm. v. Simpson, (9 Met.) SO 138; Comm. v. King, (9 C.) 63 284; Comm. v. Berry, 99 428. 73. As to evidence of confessions of a feloni- ous intent, with respect to lost property, found by the defendant, see Comm. v. Titus, 116 42. 74. Where there was conflicting evidence, as to the defendant's authority from the owner to sell the property, instructions to the jury were sustained, that if the defendant believed he had a right to sell the.property, the wrongful appro- priation of the money was not larceny, and that the jury might consider the fact that he absconded, upon the question whether the tak- ing and sale were felonious. Comm. v. Hurd, 123 438. 75. The defendant cannot prove the confes- sion of another, that the latter committed the theft. Comm. v. Chabbock, 1 144. 76. Or that the defendant was reputed to be a person of property. Comm. v. Stebbins, (8 G.) 74 492. 77. The owner of stolen goods may testify to certain marks upon them to identify them, although neither the goods nor the marks are produced. Comm. v. Hills, (10 C.) 64 530. 78. Upon an indictment of the owner of goods, for stealing them from an attaching officer, the defendant may prove that he le.t enough to satisfy the claim, as corroborating his statement that he took them only to protect himself against other creditors. Comm. v. Greene, 111 392. See, also, Comm. n. Rowe, 105 590. 79. Where the government proves a receipt, which states a time, as that when a telegraph messenger started on his errand, it is not con- cluded as to the time stated. Comm. v. Whitman, 121 361. 80. An exception does not lie to a ruling, that the taking from a messenger of money, intended for another, althougli the defendant did not personate the latter, is larceny, if he induced the messenger to believe that he had authority to receive it. Comm. v. Whitman, 121 361. 81. Upon the question, whether the defendant * in such a ca a e was the man who wrote the receipt for the money, another receipt, proved to have been signed by him, is competent, to enable the jurv to compare the signatures. Comm.V Whitman, 121 361. 82. As to the sufficiency of the proof of the allegation, that the money stolen was the prop- erty of the District Telegraph Company a New York corporation, see Comm. v. Whitman, 121 361. 83. Upon an indictment for stealing a dis- charge paper from the military serAice of the United States, alleged to be of the value of one hundred dollars, where the paper itself is not produced, the jury were rightfully instructed . that the Commonwealth need not offer direct evidence of its value, but the jury might, upon the evidence, infer suc.i value as they should find it to have, as it was "instrument of well known character." Comm. v. Lawless, 103 425. See, also, Comm. u. Williams, (9 Met.) 50 273; Comm. 11. Stebbins, (8 G.) 74 492; Comm. ». McKenney, (9 G.) 75 114; Comm. ». Riggs, (14 G.) SO 376; Comm. ». Burke, (12 A.) 94 182. 84. The jury may judge of the value by in- spection. Comm. v. Riggs, (14 G.) 80 376; Comm. v. Burke, (12 A.) 94 182. 85. Upon an indictment for stealing bank bills, it is not necessary to prove that the amount stolen was not more than alleged. Comm. v. Gallagher, 126 54. See, also, Comm. ». Hussey, 111 432. 86. An indictment for stealing promissory notes is supported by proof of stealing bank bills. Comm. n. Butts, 124 449; Comm. v. Gallagher, 126 54. See, also, Comm. v. Stebbins, (8 G.) 74 492, and Indict- ment, III, (3); VIII, (48). 87. Upon an indictment for stealing " twelve handkerchiefs, of the value of six dollars," the defendant cannot be convicted by proof of a theft of a smaller number, inasmuch as the indictment does not allege that each was of some value, and it may be that only those not stolen were deemed to be of value by the grand jury. Comm. v. Lavery, 101 207. 88. See further as to an allegation of the col- lective value of several articles. Hope v. Comm., (9 Met.) 50 134; Comm. v. O'Connell, (12 A.) 94 451; Comm. v. Cahill, (12 A.) 94 540: Comm. v. Hussey, 111 432; Comm. v. Green, 122 333; Comm. v. Butts, 124 449. LARCENY, III— LEGATEE. 935 89. Evidence is competent that the signature to a receipt for the stolen goods, made by one who personated the owner, is in the defendant's handwriting. Conim. 1). Lawless, 103 425. See, also, Comm. v. Whitman, 121 361, cited ante, arts. 79 to 82. 90. For rulings upon various matters of cir- cumstantial evidence, as tending to identify the defendant with the person who committed the offence, see Comm. v. Annis, (15 G.) 81 197. 91. Confessions of the defendant, that he had committed several larcenies in a shop, some alone and some with an accomplice, but not fixing any particular occasions, are sufficient to warrant the jury to render a verdict of guilty upon an indictment, containing five counts for distinct larcenies. Comm. v. Sego, 125 210. 92. For rulings upon the sufficiency of cir- cumstantial evidence, whether the defendant and another person, not indicted, were acting in concert in a larceny, in which the latter participated, see Comm. «. Griffin, (4 A.) 86 310; Comm. v. Mason, 105 163. 93. Where an indictment charges larceny of bank notes "of the property of F, in his pos- session then and there being, and the proof is that F, as the cashier of a bank, had received a sealed package of notes, and, while on his way to the bank, laid them down on the table in an eating house to eat his dinner, and the defend- ant then took them, it was held that the jury might find that they were in F's possession. Comm. ®. Butts, 124 449. 94. Where the proofs showed that A had a large amount of wool stored in a building, and that a quantity exceeding that charged in the in- dictment was missing, it was held that the jury might find, that the wool stolen was the prop- erty of A. Comm. v, Carroll, 123 411. 95. A custom for the officers of a vessel to appropriate a small portion of the cargo to themselves, is not admissible to negative a felo- nious intent, in taking a portion of such a cargo. Comm. v. Doane, (1 C.) 55 5. 96. Upon an indictment against a miller, for stealing barilla sent to him to be ground, by substituting plaster of Paris for part of it, the Commonwealth is not bound to produce the truckman, who carried the barilla to and from the mill, to prove that it was not adulterated in the course of transportation, although the evi- dence is circumstantial. Comm. v. James, (1 P.) 18 375 97. Upon an indictment of a married woman, evidence that her husband deposited a sum of money, to secure the absence of a witness for the government, is inadmissible against her, unless it is proved that she was privy to the transaction. Comm. «. Eobbins, (3 P.) 20 63. 98. Where an indictment contains several counts, each charging the larceny of the prop- erty of a different person on the same day, the court is not bound to assume that all constitute the same offence. Bushman v. Comm., 138 507. 99. Where a third person's money is staked on the throw of dice, between the defendant and another, and, without waiting for the throw, the defendant seizes it and runs away, he is guilty of larceny, but not of fraudulently ob- taining money by a game, under P. S., Ch. 203, § 65. Comm. v. Jenks, 138 484. Lascivious cohabitation. [See Cohabitation.] Lascivious person. [See Lewdness] Lasciviousness. [See Lewdness.] Lateral support. [See Land Owner.] Law and fact, questions of. [See Questions oe Law, etc.] Law of nations. [See Conflict of Laws.] Law of the road. [See Highway, I, (4).] Lease. I See Landlord and Tenant, V; VI.] Leather. Legacy. [See Inspection.] [See Devise and Bequest.] Legal tender. [See Monet.] Legatee. [See Devise and Bequest ; Heiks, etc.] 936 LEGISLATIVE— LIBEL, ETC., I, (1). Legislature. [See Constitutional Law, III, (2) ; General Court.] Legitimacy. [See bastard, I; Descent, etc., II; Husband and Wife, I.] Letter of credit. [See Bill, op Exchange, etc., Ii (7).] Letters and answers. [When evidence, and effect thereof, in general, see Evidence, IV, (9); V, (4); VI, (2); and art. 835. As to anonymous letters, see Evidence, art. 1019. As to expert ^evidence of handwriting! cipher, etc., see Evidence, IX, (2).] Levy. [See Execution, II; III; TV.'] o Lewd and lascivious cohabitation. [See Cohabitation.] Lewdness. [See, also, Cohabitation; Indictment, VIL (49).] 1. The word "lewdness," at common law, means open and public indecency; but in the statutes it has a broader sense. Comm. v. "Wardell, 128 53. 2. In G. 8., Ch. 165, § 13; P. S., Ch. 207, 8 13, and in G. 8., Ch. Ch. 87, § 6; P. 8., Ch. 101, § 6, it means the irregular indulgence of lust, either public or private. Comm. ■». Wardell, 128 52. See, also, Comm. v. Parker, (4 A.) 86 313; Comm. v. Lambert, (12 A.) 94 177. 3. " Open and gross lewdness," under G. S., Ch. 165. § 6; P. S. Ch. 207, § 6, is committed by a man. where he intentionally and indecently exposes his person, in another's house, to a girl eleven years old. Comm". v. Wardell. 128 52. 4. But acts of sexuil intercourse, which both parties intended should be secret, are not within this statute. Comm. ■». Catlin, 1 8. Libel and slander. I. In what Cases an Action lies ob does NOT LIE. (1.) Slanderous words. (2.) Libellous words or pictures. (3.) Words, etc., of doubtful meaning or ap- plication. (4.) Publication; repetition. II. In what Cases an Indictment for Libel lies. III. Malice. IV. Privileged Communication. (1.) General principles. (2.) Confidential communication; members of churches and other societies. (3.) Detection, etc., of crime; public officer; candidate for office. (4.) Judicial, quasi judicial, or legislative pro- ceedings, and reports thereof. V. Justification VI. Parties and Pleadings in a civil Action. (1.) Parties. (2.) Declaration. (3.) Plea; answer. VII. Damages. (1.) General principles. (2.) Evidence in mitigation or aggravation of VIII. Evidence. (1.) In a civil action. (2.) In a criminal prosecution. IX. Trial; Verdict. [For matters pertaining to an indictment for libel, see, also, Indictment, passim; particularly, IV, (3); VIII, (50).] I. In what Cases an action lies ob does not lie. (1.) Slanderous words. 1. Words spoken are actionable per se, that is, without special damage, which import any offence, punishable by criminal proceedings, al- though the punishment is not infamous. Dunnell v. Eiske, (11 Met.) 52 551; Brown v. Nickerson, (5 G.) 71 1. See, also, Chaddock v. Briggs, 13 248; Bloss t>. Tobey, (2 P.) 19 320; Miller r>. Parish, (8 P.) 25 384. 2. So where they are spoken of one in office, and impute to him an act, the commission of which, by an officer, is punishable, but by a private person is not. Allen ®. Hillman, (12 P.) 29 101. 3. Words spoken, not in themselves action- able, may become so by being spoken of the special profession, office, or occupation, of the person to whom they apply. Chaddock d. Briggs, 13 248; Fitz- gerald v. Robinson, 112 371. 4. Thus a slander tending to disgrace and disparage one, in an office ol profit and honor which he held, is actionable, but not after he has ceased to hold the office. Allen «. Hillman, (12 P.) 29 101; Goodrich v. Hooper, 97 1. LIBEL, ETC., I, (1), (2). 937 5. And any words spoken of one engaged in a profession, trade, or other business, tending to show him morally unfit for it, and to cause Mm to lose the benefit of it by a loss of public confidence in him, are actionable upon proof of special damage. Chaddock ®. Briggs, 13 348; Hem- menway ». Woods, (1 P.) 18 524. 6. A charge that one has the plague, leprosy, or a venereal disorder, is actionable per se. Joannes ®. Burt, (6 A ) 88 236. See, also, Chaddock ®. Briggs, 13 248; Bloss ®. Tobey, (2 P.) 19 320; Golder- man ®. Stearns, (7 G.) 73 181. 7. But a charge that one has had such a disease is not actionable. Golderman ®. Stearns, (7 G.) 73 181. 8. And a charge of insanity, or other disease not loathsome or contagious, is actionable only on proof of a special damage. Joannes v. Burt, (6 A.) 88 236. 9. The following words spoken, concerning the plain iff, are -not actionable, except under the special circumstances stated: "Cheat "and "swindler," unless spoken of the plaintiff in his business. Stevenson ®. Hayden, 2 406; Odiorne v. Bacon, (6 C.) 60 185. A charge of burning the plaintiff's own store, unless it is connected with other matter, showing that a criminal offence has been com- mitted or attempted. Bloss a. Tobey, (2 P.) 19 320. That the library has been '-plundered" by the plaintiff, unless special damage is shown. Carter ®. Andrews, (16 P.) 33 1. Words importing a mere breach of trust, under the same circumstances, although the word "robbed" was used. Allen v. Hillman, (12 P.) 29 101. A charge of offering unwholesome provisions for sale, without charging that he knew them to be unwholesome, unless special damage is shown. Hemmenway ®. Woods, (1 P.) 18 524; Stevens ». Hartwell, (11 Met.) 52 542. 10. An imprecation, a curse, and a sentence of excommunication upon the plaintiff, by a Boman Catholic priest in church, is not slander- ous per se. Fitzgerald v. Kobinson, 112 371. 11. The words "he keeps a bad place of resort, keep away from it," spoken of a trades- man, in relation to his trade, are actionable. Fitzgerald ®. Robinson, 112 371 12. The words "he keeps a bad house . . . he keeps bad girls there," imports a charge of keeping a house of ill fame, and are actionable. Fitzgerald ®. Robinson, 112 371. 13. The words "do not go to his house, etc., • . . he is a bad man," spoken of a trades- man, in relation to his trade, are actionable. Fitzgerald ®. Robinson, 112 371. 14. A sentence of excommunication for un- chaste and licentious conduct, does not import an indictable offence, although the charge is made of a violation of the seventh commandment. Farnsworth ®. Storrs, (5 C.) 59 412. VOL. 1—118 15. For a case where it was held, notwith- standing the inuendoes in the complaint, that words spoken concerning a collector of the United States customs, did not import a charge, either of embezzlement or receiving a bribe, see Goodrich ®. Hooper. 97 1. 16. The following spoken words, applied to the plaintiff, were ruled to be actionable per se: "He keeps a gambling place; he keeps a gambling hell." Buckley v. O'Niel, 113 193 "Knave." Harding ». Brooks, (5 P.) 22 244. " He has stolen my book." Nye ®. Otis, 8 122. A charge that the plaintiff took the clothes from the body of a shipwrecked man, import- ing theft. Wonson ®. Sayward, (13 P.) 30 402. A charge that the plaintiff has been impris- oned for larceny in a foreign country. Krebs ®. Oliver, (12 G.) 78 239. " You swore false at the trial of your brother John," after verdict. Fowle ®. Robbins, 12 498. A charge of drunkenness against a woman. Brown ®. Nickerson, (5 G.) 71 1. Or a clergyman. Chaddock ®. Briggs, 13 248. A charge of fornication against a woman. Miller ®. Parish, (8 P.) 25 384; Ken- ney ®. McLaughlin, (5 G.) 71 3. , 17. A charge of perjury on a material point on the trial of a complaint before a magistrate, for an offence of which he had jurisdiction, is actionable per se, although the complaint was fatally defective. Wood ®. Southwick, 97 354. 18. An action for slander, by falsely testify- ing that the plaintiff's character for truth and veracity "is bad, can be sustained only upon proof of special damage. Cook ®. Cook, 100 194 (2.) libellous words or pictures. 19. An action for libel lies for the publication, in writing or in print, or by signs or pictures, of any words, which, in their ordinary import, have any tendency to bring the plaintiff into public hatred, contempt, ridicule, reproach, or disgrace, although the speaking of the same words would not be actionable. Miller®. Buller, (6 C.) 60 71; Atwill ®. Mackintosh, 120 177; Twombly v. Monroe, 136 464. See, also, Clark®. Binney (2 P.) 19 113; Curtis®. Mussey, (6G.) 72 261. 20 Conductors of the press have no special privileges or rights, but only such as are com- mon to all. n Sheckell ®. Jackson, (10 C.) 64 25. 21 A charge of any criminal or quasi crimi- nal offence, or any other matter which would maintain an action for a slander, a fortiori will maintain an action for a libel. Walker ®. Winn, 8 248; Worthing- ton v. Houghton, 109 481. 938 LIBEL, ETC., I, (2), (3). 22. As to an action for libel by a caricature, see Ellis ii. Kimball, (16 P.) 33 132. 23. An action also lies for a false publication disparaging the plaintiff's property, if actual malice and special damage are proved; but not otherwise. Swan ». Tappan, (5 C.) 59 104; Gott v. Pulsifer, 122 235. 24. Where the special damage alleged is the loss of the sale of the property, evidence of its value for scientific purposes or for exhibition is immaterial. Gott v. Pulsifer, 122 235. 25. But the fact that property is concerned does not give chancery jurisdiction over this species of libel. Boston Diatite Co. v. Florence M. Co., 114 69; Whitehead v. Kitson, 119 484. 26. The publication of a libel is not excused oy the publisher's ignorance that it contained libellous matter. Curtis v. Mussey, (6 G.) 72 261. [See poet, I, (4).] 27. Nor by the fact that the plaintiff failed to sue for . McLaughlin, (5 6.) 71 3; Hastings t>. Stetson, 126 329. 47. And where the defendant repeated a slander, already in circulation, to one person, who testified that she did not believe it, or think any worse of the plaintiff from having heard it, it was held that the plaintiff was entitled to a new trial, where trifling damages were found, upon an instruction that the repetition was not actionable, unless the defendant intended to in- crease the circulation of the slander, or to add to it some sanction, authority, or credit. Kenney «. McLaughlin, (5 G.) 71 3. 48. A witness who testifies that the defend- ant, orally, charged the plaintiff with an offence, cannot be asked by the defendant whether he did not so inform the defendant. Clark v. Munsell, (6 Met.) 47 373 49. One who publishes in a newspaper mat- ter written by another, the natural effect of which is to vilify the plaintiff, is liable, although he did not know that it was libellous. Curtis ii. Mussey, (6 G.) 72 261. 50. But if he supposed it to be a fictitious nar- rative, or a fancy sketch, and did not know that it applied to any one, he is not, but the writer is, liable. Smith n. Ashley, (11 Met.) 52 367. 51. For rulings upon questions of evidence, where the libel was published in the defendant's newspaper, and, as he alleged, by an agent, without his knowledge and consent, and during his absence. Goodrich *. Stone, (11 Met.) 52 486. 52. For similar rulings, where the defendant's newspaper was printed by another, one of whose workmen, in the absence of the defendr ant and the editor, set up and inserted the libel- ous matter. Goodrich v. Stone, (11 Met.) 52 486. 53. Where two persons participate in the com- position of a libellous letter, written by one of them, and it is sent by mail, by whom it does not appear, and received by the person to whom it is addressed, this is evidence of publication by both. Miller «. Butler, (6 C.) 60 71. 54 An allegation in libel that the defendants published cr caused to be published a pamphlet, containing a libellous charge against the plain- tiff, is not supported by proof, that they pro- cured the plaintiff to be expelled from a medi- cal society for immorality, and that the pro- ceedings were published in the regular reports of the society by a committee, of which the de- fendants were not members. Barrows v. Carpenter, (11 C.) 65 456. [For rulings upon this 3ubjeet in criminal prosecu- tions, see,pos«, VIII, (3).] II. In what Cases an Indictment for Libel LIES. 55. An indictable libel is a malicious publi- cation, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule. Comm. n. Clap, 4 163. See, also, Comm. 11. Holmes, 17 H36; Comm. v. Child, (13 P.) 30 198: Comm. «: Kneeland, (20 P.) 37 206; Comm. v. Chapman, (13 Met.) 54 68; Comm. ■o. Wright, (1 C.) 55 46. 56. The publication of such a libel is not made punishable by any statute, but it is punishable by the common law of Massachusetts. Comm. ii. Chapman, (13 Met.) 54 68. 57. The malice which renders a libel indict- able is not malice, in its popular sense of hatred and ill will to the individual libelled, but an act done wilfully, unlawfully, and in violation of his just rights. Comm. v. Snelling, (15 P.) 32 337; Comm. ii. York, (9 Met.) 50 93; Comm. ii. Bonner, (9 Met.) 50 410. 58. It results by inference of law from the falsity of the libel. Comm. v. Blanding, (3 P.) 20 304. [See, further, as to malice, post. III.] 59. A libellous publication is not within the constitutional protection of the liberty of the Comm. «. Blanding, (3 P.) 20 304. 60. Independently of the statute concering blasphemy, an indictment for a libel lies for publishing written or printed words, blasphem- ing the holy name of God. Comm. v. Kneeland, (20 P.) 37 206. [See, further, Blasphemy.] 61. Where a libel is sold in a bookseller's shop by his servant, in the ordinary course of business, this is presumptive but not conclusive evidence of publication by the master. Comm. v. Nichols, (10 Met.) 51 259. Comm. ii. Morgan, 107 199. 62. So an indictment is sustained by evidence that the defendant procured another to publish the libel. Comm. v. Park, (1 G.) 67 553. 63. The publisher of a newspaper, in which a libel appears, is presumed to have published it, and the presumption is not rebutted by proof that he did not know of the publication. 940 LIBEL, ETC., in. until it was pointed out to him, and that a retraction and apology were published in a subsequent number of the newspaper. Comm. v, Morgan, 107 199. 64 On the trial of an indictment against two, proof that the newspaper was printed and published by only one of them is not a fatal variance, if the newspaper is so described as to prevent any prejudice to the defendant. Comm. 0. Morgan, 107 199. [See, further, as to publication! ante, I, (4) ; post, VIII.] III. Malice. [See, also, ante, I, (4); II; post, TV, (1) ; Vr VIII. As to proof of other libels or slanders to show malice, see Evidence, I, (3).] 65. Malice in uttering false statements may consist either in a direct intention to injure another, or in a reckless disregard of his rights, and of the consequences that may result to him. Gott v. Pulsifer, 122 235. [See, also, ante, II.] 66. A laudable motive is not inconsistent with the legal inference of malice, as the law does not permit a volunteer to publish his opinion in defamation of another with im- punity, simply because he means well in so doing. Shurtleff 0. Parker, 130 293. See, also, Comm. 0. Wardwell, 136 164. 67. In judging of the malicious character of a libel, the jury may take into consideration the whole publication; and if statements therein concerning others are malicious, they may infer malice in thosa concerning the plaintiff. Miller 0. Butler, (6 C.) 60 71. 68. As to the general rules respecting the proof of absence of malice, where the defend- ant, sued for libel relies upon a defence that the publication was privileged, as published without malice and for a justifiable purpose, etc., see Bradley Heath, (12 P.) 29 163; Swan® Tappan,(5C.) 59 104; Sheckell 0. Jackson, (10 C.) 64 25; Gassett 0. Gilbert, (6 G.) 72 94. As to similar rules in slander for disparaging property, see Swan 0. Tappan, (5 C.) 59 104; Gott 0. Pulsifer, 122 235. 69 If the judge states to the jury that there is no evidence of malice, where there is slight evidence of it, this is not a sufficient reason for a new trial Remington 0. Congdon, (2 P.) 19 310. 70. Upon an indictment for a libel, evidence, that the defendant's object was to attack vicious persons and establishments, is inadmissible to rebut the presumption of malice. Comm. «. Snelling, (15 P.) 32 337. 71. Upon an indictment, the burden was formerly upon the defendant, not only to prove the truth, but to prove the absence of malice. Comm. v. Bonner, (9 Met.) 50 410. 72. But under the existing statute, if the defendant proves the truth, the government must prove malice, in the popular sense of hatred and ill will, towards the person against whom the publication was levelled. Comm. 0. Damon, 136 441. 73. Where the declaration, in an action of slander, contains two counts, each containing different words, and the matter in the first count is privileged, but for express malice, the defamatory words in the second count may be used, to show malice in those alleged in the first count, and the plaintiff may thereupon recover under both. Clark 0. Brown, 116 504. See, also, also, Baldwin 0. Soule, (6 G.) 72 321; Markham v. Russell, (12 A.) 94 573; Robbins 0. Fletcher, lOl 115. 74. Where the person slandered has, by some act of his own, contributed to produce a belief in the truth of the words spoken, he cannot recover; but in such a case, the defend- ant cannot shield himself, by showing that he believed the charge to be true, if such belief was induced by conduct which fell short of the charge. Bradley 0. Heath, (12 P.) 29 163; Watson 0. Moore, (2 C.) 56 133; Part- hurst v. Ketchum, (6 A.) 88 406; Clark B.Brown, 116 504. 75. In slander, if the plaintiff shows a repetition of the charge in another conversa- tion, the defendant may prove the whole of that conversation. Perry v. Breed, 117 155. 76. Where a communication is privileged, except for malice, evidence that the defendant had been informed by others that the facts were as he stated them, is competent, as tending to show a belief that the charge was true, and consequently an absence of malice. Lawler v. Earle, (5 A.) 87 22. See, also, Carpenter 0. Leonard, (3 A.) 85 32. 77. In slander by an infant, for a charge of larceny, evidence of a previous quarrel between the defendant and the plaintiff's father and next friend, is inadmissible to prove malice in the defendant towards the plaintiff. York 0. Pease, (2 G.) 68 282. 78. In slander, for charging a woman with fornication, where the defendant denies ill will towards the plaintiff, he may be cross examined as to ill will towards the person spoken of as the other party to the offence. Robbins 0. Fletcher, lOl 115. 79. In slander for statements made concern- ing the plaintiff's difficulties with his wife, it was held that the defendant could notrebut the inference of malice, by proof of the wife's state- ments, after she left her husband. Collins 0. Stephenson, (8 G.) 74 438. 80. In slander, a repetition by the defendant of the slander, is admissible to show malice. Bodwcll 0. Swan, (3 P.) 20 76; Hast- ings 0. Stetson, 130 76. 81. Before the statute, a plea in justification, which the defendant failed to establish, was evidence of malice. Jackson 0. Stetson, 15 48; Clark 0. Binney, (2 P.) 19 113; Bodwell 0. Os- LIBEL, ETC., Ill; IV, (1), (2). 941 good, (3 P.) 20 379; Hix v. Drury, (5 P.) 22 296. 82. To rebut the inference of malice, but for no other purpose, the truth of the charge may be given in evidence, under the general issue Remington v. Congdon, (2 P.) 19 310; Bradley «. Heath, (la P.) 29 163. 83. In an action for a libel, charging the plaintiff with dishonesty and bad faith, the de- fendant cannot ask the news collector, who wrote the article in question, what inquiries he made on the subject; nor can he show as a foundation for such a question, that there was a general anxiety in the community in regard to the matters stated. Sheckell v. Jackson, (10 C.) 64 25. 84. In an action for libel, the defendant can- not prove, for the purpose of showing that he had no malice, that there were similar reports in circulat on before the publication of the libel, without showing that he knew of them. Lothrop v. Adams, 133 471. 85. In such an action against copartners, all are liable for the malice of one. Lothrop e. Adams, 133 471 IV. Privileged Communication. (1.) General principles. 86. No action for slander or libel lies upon a privileged communication, without proof of actual malice; but where such malice is proved, the occasion furnishes no excuse. Bradley «. Heath, (12 P.) 29 163; Swan v. Tappan, (5 C.) 59 104; Sheck- ell v. Jackson, (10 C.) 64 25; Gassett «. Gilbert, (6 G.) 72 94; Gott v. Pulsi- fer, 122 235. 87. It is for the court to determine, in the first instance, whether the occasion is such as to render the communication privileged. Sheckell v. Jackson, (10 C.) 64 25; Gassett v. Gilbert, (6 G.) 72 94; Brow». Hathaway, (13 A.) 95 239. 88. A notice that a person, formerly in the defendant's employment, has been dismissed, is privileged only as far as it is given in good faith, for the pr Section of the defendant, or a corporation of which he is an officer, and as far as the jury shall find that it is a necessary or reasonable mode of giving notice. Gassett e. Gilbert. (6 G.) 72 94; Hatch v. Lane, 105 394. 89. Where the communication is shown to be privileged, that rebuts the prima facie infer- ence of malice, and throws upon the plaintiff the burden of proving actual malice; and if there is any evidence upon that question, it is for the jury. Bodwell i>. Osgood, (3 P.) 20 379; Watson v. Moore, (2 C.) 56 133; Swan «. Tappan, (5 C.) 59 104; Gassett «. Gil- bert, (6 G.) 72 94; Brow v. Hathaway, (13 A.) 95 239. 90. An oral privileged communication is pro- tected, although it was intemperate or exces- sive from overexcitement. Brow «. Hathaway, (13 A.) 95 239- Billings v. Fairbanks, 136 177. See, also, Atwill ii. Mackintosh, 120 177. 91 But a privileged communication must have been honestly made, in the belief that it was true; and an inference of malice may be drawn by the jury either from extrinsic facts, or from the terms in which the communication was made. Atwill v. Mackintosh, 120 177. 92. Fair and reasonable comments in a news- paper, concerning a public exhibition, are priv- ileged. Gott v. Pulsifer, 122 235. (2.) Confidential communication; mem- bers of churches and other societies. 93. A communication made bona fide upon a. subject matter, in which the party communi- cating has an interest, or in reference to which he has a duty to perform, to a person having a corresponding interest or duty, is privileged. Joannes ■». Bennett, (5 A.) 87 169; Atwill v. Mackintosh, 120 177. See also, Bradley v. Heath, (12 P.) 29 163; Billings v. Fairbanks, 136 177. 94. An interest of the same description whicn all members of the community have, in know- ing the character of others with whom they are brought in contact, does not render a commu- nication privileged, although the person utter- ing it, the person to whom it is uttered, and the person of whom it is uttered, are members of a church committee. York v. Johnson, 116 482. 95. A communication to the family of a woman, whom the plaintiff was about to marry, by one who is no relation to either, and not made in answer to inquiries, is not not privileged. Krebs v. Oliver, (12 G.; 78 239. 96. Aliter, semble, if the writer of a letter con- taining such a communication was the woman's former pastor, and the letter was written at her parents' request. Joannes v. Bennett, (5 A.") 87 169. 97. Where the plaintiff, being accused by his employer of stealing money from him, informs a friend of the accusation, and seeks his advice, and during an interview between the latter and the employer upon the subject, the plaintiff comes in and joins in the conversation, in the course of which the employer repeats the charge, the occasion renders the words privi- leged. Billings v. Fairbanks, 136 177. 98. Churches have authority to deal with their members for immoral and scandalous conduct; and every member, by entering into the church covenant, submits to that jurisdic- tion. The proceedings of the church are quasi judicial, and those who complain, testify, act, vote, and pronounce the result, are protected by the rules relating to privileged commundsa- tions. Farnsworth «. Starrs, (5 C.) 59 412. See, also, Remington t>. Congdon, (. Stetson, 130 76; Marble «. Chapin, 132 225; Mahoney « Belford, 132 393; Chesley v. Tompson, 137 136. 184. In libel, the court sustained the judge in refusing an instruction to the jury, that, if the charges proved were of such a nature, that those not proved wmld not affect the plaintiff, he could recover only nominal damages; and in giving an instruction to them, that, if they found that some of the charges were true, and some untrue, they should give only such dam- ages as he had sustained by those that were untrue. Lothrop «. Adams, 133 471. 185. In an action against husband and wife for a libel by the wife, the damages should be such as would be recoverable if she was sole. Austin i). Wilson, (4 C.) 58 273. 186. In slander or libel, although the court would have been better satisfied with lower damages, it will not set aside a verdict for ex- cessive damages, unless the amount thereof, as compared with the facts proved, shows that the jury must have, acted from undue motives, or some gross error and misconception. Treanor v. Donahoe, (9 C.) 63 228. See, also, Clark ». Bimiey, (2 P.) 19 113. [For additional statements of this principle, and cases where it has been practically applied, see New Trial, III, (3).l (2.) Evidence In mitigation or aggrava- tion of damages. [As to the rule of pleading on this subject, see ante, VI, (3).] 187. In libel or slander, the defendant may, without specially pleading the fact, and al- though he has pleaded a justification, introduce evidence, in mitigation of damages, that the plaintiff's general reputation is bad; and he may also show that his general reputation is bad, with respect to the charges made by the words proved. Clark v. Brown, 116 504. See, also, Wolcott i). Hall, 6 514; Bodwell v. Swan, (3 P.) 20 376; Stone «. Varney, (7 Met.) 48 86; Leonard v. Allen, (11C.) 65 241; Parkhurst». Ketchum, (6 A.) 88 406; Peterson t>. Morgan, 116 350. 188. Such evidence may be given after the plaintiff has introduced testimony, in rebuttal of the defendant's evidence in justification; but the court must instruct the jury that it cannot be used to sustain the justification. Stone e. Varney. (7 Met.) 48 86. 189. But a general report that the plaintiff was guilty of the particular offence charged, is inadmissible. Wolcott v. Hall, 6 514; Alderman v. French, (IP.) 18 1; Bodwell t>. Swan, (3 P.) 20 376; Clark «. Munsell, (6 Met.) 47 373; Stone v. Varney, (7 Met.) 48 86; Watson v. Moore, (2 C.) 56 133; Kenney e. McLaughlin, (5 G-.) 71 3; Chapman v. Ordway, (5 A.) 87 593; Peterson*. Morgan, 116 350;Mahoney ». Belford, 132 393. 190. Where the charge was that the plaintiff had stolen from his former employer, evidence of a general reputation as to the plaintiff's having, during the time he lived with the latter, and at the time of the alleged slander, stolen from him, is only tantamount to proving his general reputation as to the particular offence, and is inadmissible. Mahoney «. Belford, 132 393. 191. It was not competent for the defendant to show, under the general issue, in mitigation, the existence of circumstances which afforded him reasonable ground to believe that the charge was true. Alderman v. French, (IP.) 18 1; Bodwell v. Swan, (3 P.) 20 376; Hix v. Drury, (5 P.) 22 296; Brickett v. Davis, (21 P.) 38 404; Watson v. Moore, (2 C.) 56 133. -92. Nor is such evidence competent, under the practice act, either in justification or miti- gation, although the fact is specially pleaded. Parkhurst «. Ketchum, (6 A.) 88 406; Clark v. Brown, 116 504. .93. In an early case, it was held that in slander for charging the plaintiff with perjury, the defendant might mitigate by proof that the plaintiff was an atheist. Ross ■». Lapham, 14 275. 194. In libel or slander, evidence of particular acts of misconduct on the part of the plaintiff, is inadmissible in mitigation. Watson v. Mooro, (2 C.) 56 133; Parkhurst e. Ketchum, (6 A.) 88 406; McLaughlin v. Cowley, 131 70. See, also, Alderman v. French, (1 P.) 18 1, explaining Lamed «. Bufflnton, 3 546. 195. So is evidence of hostile feeling on the plaintiff's part towards the defendant Andrews v. Bartholomew, (2 Met.) 43 509. 196. Evidence of immediate rrovocation by the plaintiff is admissible in slander to mitigate damages, but not of a provocation given at a LIBEL, ETC., VII, (2); VIII, (1). 947 previous time (in thir case the evening before), and not connected with the speaking of the words. Sheffillfl. Van Deusen, (15 G.) 81 485. 197. Evidence that the plaintiff had libelled the defendant is generally inadmissible; but it is admissible in mitigation, if the act is so recent as to afford a fair presumption, that the defend- ant's libel was published under the influence of the passion excited by it; or if the evidence is explanatory of, or otherwise connected with, the defendant's libel. Child v. Homer, (13 P.) 30 503. 198. The defendant's own bad character cannot be shown by him in mitigation. Hastings ». Stetson, 130 76. See, also, Howe v. Perry, (15 P.) 32 506. 199. But he may show in mitigation, that he was insane or partially so, at the time of speak- ing the words, or immediately before. Dickinson v. Barber, 9 225. 200. The plaintiff cannot show, to aggravate the damages, that it was currently reported in the neighborhood, that the defendant had charged him with the offence, as alleged in the declaration. Leonard v. Allen, (11 C.) 65 241 201. The plaintiff may show, to aggravate damages, his rank and condition in life; and the defendant may also avail himself of such evi- dence, either in mitigation, or upon the issue of justification. Larned v. Buffmton, 3 546. See, also, Stone ». Varney, (7 Met.) 48 86. 202. Evidence of the moral or intellectual character of the person, to whom slanderous words were spoken, is immaterial on the ques- tion of damages. SheffiflD. Van Deusen, (15 G.) 81 485. 203. The plaintiff's mental suffering is matter of aggravation merely, and can be proved with- out any special allegation on the subject in the declaration; his own testimony is admissible for that purpose. Chesley v. Tompson, 137 136. Vin. Evidence. [As to evidence upon particular subjects or issues, see, also, ante, I, (4); II; III; V; VII, (1); VII, (2). As to evidence of other libels or slanders to show malice, see Evidence, I, (3).) (1.) la a civil action. 204. Upon an issue of justification, the bur- den is upon the defendant to establish the truth of the charge, and if the jury doubt as to that fact, they must find for the plaintiff Sperry ». Wilcox, (1 Met.) 42 267. 205. Under the existing system of pleading, it the declaration alleges that the defendant charged the plaintiff with a crime, "T>y words spoken of the plaintiff, substantially as follows," « is not necessary to prove that the words were exactly those set forth, but only substantially so, m order that it may appear that the crime was charged, in the manner in which plaintiff alleges that it was charged. Chace v. Sherman, 119 387. See, also, Baldwin v. Soule, (6 G.) 72 321; Bobbins v. Fletcher, lOl 115. 206. But it is not competent to prove the same charge, made by words substantially dif- ferent from those set forth. Chace «. Sherman, 1 19 387. See, also, Baldwin v. Soule, (6 G.) 72 321; Lee v. Kane, (6 G.) 72 495; Doherty v. Brown, (10 G.) 76 250; Pay-on ». Ma- comber, (3 A.) 85 69; Clark v. Brown, 116 504. [For the practical application of this rule to par- ticular words, see the cases above c.ted.1 207. Formerly the rule was, that the material and actionable words must be strictly proved as they are alleged; but as to unimportant, con- necting, or descriptive words, or ihe circum- stantial parts of the slander, greater latitude was allowed. Whiting v. Smith, (13 P.) 30 364. 208. An allegation that the defendant accused the plaintiff of a specific offence, is not sustained by proof of an accusation of a different offence. Perry v. Porter, 124 338. 209. The burden of proof is upon the plain- tiff, to show that the slanderous words were spoken within two years before issuing the writ. Pond v. Gibson, (5 A.) 87 19. 210. Where a declaration in libel sets out only part of the publication, and the entire publication is read to the jury without objection from the defendant, they may consider the whole, to form an opinion as to the meaning of the part set out. Goodrich ». Davis, (11 Met.) 52 473. 211. A witness cannot be permitted to state what meaning he understood was conveyed by the libellous or slanderous words. Snell «. Snow, (13 Met.) 54 278. See, also, Goodrich v. Davis, (11 Mel.) 52 473; Leonard «. Allen, (11 C.) 65 241, and Comm. v. Morgan, 107 199, cited, post, arts. 222, 223. 212. But where the libel was addressed "to the editor of the Massachusetts Cataract," and witnesses were permitted to testify that they understood that the publication applied to the plaintiff, it was held that they might thus testify as respects such application. Goodrich v. Davis, (11 Met.) 52 473. See, also, Miller v. Butler, (6 C.) 60 71. 213. And where a slander consists in a charge made by certain expressions, gestures and intonations, and not solely in words, a witness may state his understanding of their meaning and application. Leonard v. Allen, (11 C.) 65 241. 214. In slander for charging the plaintiff with fornication, the defendant having attemp- ted to justify, the plaintiff cannot prove, by way of rebuttal, that he had not any_ pecuniary means beyond those necessary for his bare sup- port! Orcutt «. Ranney, (10 C.) 64 183. 215. Where the evidence, as to whether the defendant used the defamatory words, is con- 948 LIBEL, ETC., VIII, (1), (2); IX— LICENSE. flicting, the plaintiff may show that he at- tempted to bribe a juror upon a former trial of the cause. Hastings v. Stetson, 130 76. 316. In libel, for charging the plaintiff with cruel trea:ment of his children, where the defendant proves that the plaintiff whipped a daughter, and he testifies that 1 e did so because he believed that she had been stealing, the defendant cannot show that she had not stolen. Lothrop ». Adams, 133 471. 217. For various rulings, upon the sufficiency and competency of the evidence, in an action for publishing a libel, tending to show the defendant's connection with the publication, see, Bigelow v. Sprague, 140 425. (3.) In a criminal prosecution. 218. It is not a variance, if the libel read in evidence contains matter, in addition to that set out in the indictment, unless the additional mat- ter in some way affects the sense or application, of the matter so set forth. Comm. v. Harmon, (2 G.) 68 289. See, also, Comm. v. Kneeland, (20 P.) 37 206; C. mm. v. Varney, (10 C.) 64 402. 219. The government must affirmatively prove that the publication was made within the county; if it was contained in a newspaper printed in another state, proof of circulation in the county suffices ■ Comm. v. Blanding, (3 P.) 20 304. [As to proof of publication, see, also, ante, II.] 220. It is not necessary to prove the publica- tion on the day set out in the indictment; proof of publication at any time within the statute of limitations suffices". Comm. v. Varney, (10 C.) 64 402; Comm. v. Morgan, 107 199. 221. But if the indictment alleges that the libel was published in a newspaper bearing a certain date, it is necessary to prove the precise date alleged. Comm. v. Varney, (10 C.) 64 402 222. The Commonwealth must prove the ap- plication of the words to the person named in the indictment; and "the meaning of the de- fendant in the language used, where it is am- biguous, or consists of expressions not in com- . mon use, but having a known meaning among certain persons, may be explained by those who know their application." Comm i). Morgan, 107 199. 223. In the case referred to, evidence was ad- mitted, at the trial, that " State cop " meant a deputy State cons able. Comm. v. Morgan, 107 199. [Upon this question, see, also, ante, VIII, (1).] 224. If the defendant offers himself as a wit- ness, although he is examined only as to his knowledge of the publication of the libel, he may be asked, on cross examination, whether he was the publisher, and must answer. Comm. ■». Morgan, 107 199. 225. And such a witness may be asked, whether his paper had subsequently contained articles unfriendly to the person libelled, and whether it has pursued an unfriendly course towards him, he being a public officer. Comm. v. Damon, 136 441. 236. Upon the trial, if the truth of the mat- ters alleged in the publication is established to the satisfaction of the jury, the defendant must be acquitted, unless it is shown that he actually participated in or authorized the publication, and that he did so with malice, in the popular sense of hatred and ill will. Comm v. Damon, 136 441. See, also, Lothrop ■». Adams, 133 471. IX. Trial; Verdict. 227. In a civil cause, it is only where the court can say that the publication is not reasonably capable of any defamatory meaning, and can- not reasonably be understood in any defama- tory sense, that the court can rule, as matter of law, that the publication is not libellous, and withdraw the case from the jury, or order a verdict for the defendant. Twombly v. Monroe, 136 464. See, also, Shattuck v. Allen, (4 G.) 70 540. [For other rulings as to the province of the jury in a civil action for slander or libel, see ante, I, (3) ; III; IV, (1); VII, (1) ; VII, (2). As to the province of the jury upon questions of law in a criminal cause, see Jury.III.] 228. Under the former practice, where the defendant, in an action for slander, filed several pleas in justification, to all of which the plain- tiff replied generally de injuria, and a verdict for the plaintiff was rendered, which followed the issue, without affirming or denying the truth of the allegations in the pleas, it was held that the verdict was correct in form. Harding v. Brooks, (5 P.) 22 244. 229. A verdict upon an indictment for com- posing, writing, printing, and publishing a libel, that the defendant " is guilty of publishing, as alleged in the indictment, and not guilty as to the residue," is equivalent to a general verdict of guilty. Comm. ■». Morgan, 107 199. Libel. (Process.) [For divorce, see Divorce, III. For forfeiture! see Betting, etc.; Fish, etc., II ; Gunpowder.] License. [As to a license by the public authorities to do cer- tain acts, or to keep or sell certain property, see Amusement; Animal; Hawker and Peddler; Intoxicating Liquors ; Steam Engine, and the other titles of the subjects of such licenses. As to a license from the probate court for the sale of real fropcrty, see Executor and administrator, V, (3); Guardian, III, (2). As to the effect of a the- atre ticket as a license, see Amusement, arts, 2,3. As to c ther private licenses, see Burial, I: II ; Ease- ment, I; II; Mine; Negligence, I, (1); Railroad, II; Keal Property; statute of Frauds, II, (4); Trespass, II, (2); VI.] 1. A license is technically an authority given to do some one act, or a series of acts, on the lands of another, without passing any estate'in LICENSE. 9i9 the land; such as to hunt on another's land, or to cut down a certain number of trees. These are held to be revocable when executory, but irrevocable when executed. Cook «. Stearns, 1 1 533. See, also, Cheever b. Pearson, (16 P.) 33 266; Rug- gles b. Lesure, (24 P.) 41 187; Giles «. Simonds, (15 G.) 81 441; Drake «. Wells, (11 A.) 93 141;-Clappe. Boston, 133 367; Johnsons. Wilkinson, 139 3. [As to the distinction between a license and an in- terest in land, see, also, Statute of Frauds, 11, (4).] 2. A license to do a particular act, but pass- ing no estate, may be created by parol; but licenses which, in their nature, amount to the granting of an estate, for however short a time, are not good without deed, and are considered as leases or grants. Cook v. Stearns, 11 533. See, also, Francis b. Boston & R. Mill Corporation, (4 P.) 21 365; Cheever v. Pearson, (16 P.) 33 266; Claflin b. Carpenter, (4 Met.) 45 580. 3. An executory parol license is revoked by the death of the licensor or licensee. Johnson b. Carter, 16 443; Ruggles v. Lesure, (24 P.) 41 187. .4. Or by alienation or demise of the land by the licensor. Cook v. Stearns, 11 533; Drake b. Wells, (11 A.) 93 141; Cobb b. Fisher, 121 169. 5. Or by whatever deprives him of the right to do the acts, which he had given a license to do, as where the land is taken under the right of eminent domain. Clapp v. Boston, 133 367. 6. The fact that a parol executory license was given upon consideration, or that the licensee has incurred expenses, or otherwise subjected himself to injury, on the faith thereof, does not affect the licensor's right to revoke it as to future acts, without reference to the injury or inconvenience, occasioned to the licensee by the revocation. Cheever v. Pearson, (16 P.) 33 266; Ruggles «. Lesure, (24 P.) 41 187; Stevens «. Stevens, (11 Met.) 52 251; Morse v. Copeland, (2 G.) 68 302; Mc- Crea b. Marsh, (12 G.) 78 211; Giles*. Simonds, (15 G.) 81 441; Burton v. Scherpf, (1 A.) 83 133; Wood ». Edes, (2 A.) 84 578. 7. A user of the license for twenty years and more does not impair such right of revocation. Morse b. Copeland, (2 G.) 68 302. 8. In such a case equity, will not interfere. Owen v. Field, (12 A.) 94 457. 9. But a parol license becomes irrevocable, where it is directly connected with the title or right of possession of personal property, pur- 'chased from the licensor; as a license to enter, and remove the same. Claflin v. Carpenter, (4 Met.) 45 580; Nettleton b. Sikes, (8 Met.) 49 34; Nel- son v. Nelson, (6 G.) 72 385; McNeal «. Emerson, (15 G.) 81 384; McLeod b. Jones, 105 403. 10. A reservation to the grantor in a deed of a right to enter, and cut standing timber, is assignable without deed; and after it nas been acted upon, and the trees cut down by the assignee, it cannot be revoked. Hill b. Cutting, 107 596. See, also, Briggs Iron Co. ». North Adams Iron Co., (12 C.) 66 114; Driscoll b. Marshall, (15 G.) 81 62; Giles b. Simonds, (15 G.) 81 441; Drake v. Wells, (11 A.) 93 141. 11. A license of such a character may be im- plied from the transaction, and in such a case it is also irrevocable. Heath b. Randall, (4 C.) 58 195. See, also, Doty «. Gorham, (5 P.) 22 487; McLeod b. Jones, 105 403. 12. A chattel mortgage confers no implied license, even after condition broken, to enter upon land of the mortgagor, to which it has been removed, since the mortgage was given; although, scmble, the rule is otherwise if it re- mains on the same land. McLeod b. Jones, 105 403; explain- ing Heath «. Randall, (4 C.) 58 195; McNeal b. Emerson, (15 G.) 81 384. 13. An executed license i elieves the licensee from liability for an act done thereunder. Cook b. Stearns, 11 533; Cheever v. Pearson, (16 P.) 33 266; Kent b. Kent, (18 P) 35 569; Stevens v. Stevens, (11 Met.) 52 251. 14. But he is liable for any unnecessary and unreasonable injury to the licensor's property. Cushing b. Adams, (18 P.) 35 110. 15. An easement may be destroyed or extin- guished, or irrevocably abandoned orrenounced, by a parol license granted by the owner of the dominant tenement, and executed upon the ser- vient tenement. Dyer v. Sanford, (9 Met.) 50 395; Morse v. Copeland, (2 G.) 68 302; Cur- tis b. Noonan, (10 A.) ' 92 406. 16. A parol license, which, if given by deed, would c. eate an easement, is revocable, although executed by the licensee. Morse b. Copeland, (2 G.) 68 302. 17. A license to a mill owner to flow another's land, given for a valuable consideration, waiv- ing all further claim for damages, is irrevoca- ble, since by statute the licensee had the right, on paying damages. Seymour b. Carter, (2 Met.) 43 520. See, also, Smith b. Goulding, (6 C.) 60 154; Cobb v. Fisher, 121 169. 18. A general license to cut and carry away wood, must be acted upon within a reasonable time; and, if the facts are ascertained, the court is to determine what is a reasonable time. Gilmore b. Wilbur, (12 P.) 29 120. 19. As to what is a reasonable time, see Gilmore r. Wilbur, (12 P.) 29 120; Hill b. Hill, 113 103; Hill b. Cutting, 113 107. See, also, Reasonable Time. 20. If not acted upon within a reasonable time it may be revoked, and, after revocation, a sale of the wood by the licensee is a nullity as to the licensor. Hill b. Hill, 113 103; Hill b. Cut- ting. 113 107. 21. A city and its officers are distinct bodies; the latter have duties imposed by the legisla- 950 LICENSE— LIEN, I, (1). ture, and the sale bv a city of buildings belong- ing to it, does not imply that the officers having charge of the streets will grant a license to remove them. Woodward v. Boston, 1 15 81. 22. A license to a tenant by the landlord, to keep a sign on the outer wall of a different part of the building, will be implied from long user. Pevey «. Skinner, 116 129. '23. A license to take stonls from a quarry will be implied from the owner's knowledge that it was done, without objection by him. Merrick v. Plumley, 99 566. 24. A license from the mayor and aldermen of a city to move a building through the streets is no protection, if the licensee does not comply with the terms thereof. Morrison v. Howe, 120 565. 25. So as to a private license to take sea weed. Giflord v. Brownell, (2 A.) 84 535. 26. For rulings upon the construction of an indenture between the town of Boston and the Boston Mill Corporation, as regards a license to abutter* to navigate the creek, see Baker «. Boston, (12 P.) 29 184. 27. For rulings upon an agreement between individuals, who had contracted with a canal corporation to construct its canal, and a land owner, whereby the latter gave them leave to construct the canal through his land, as regards the right of the corporation to enter, after the canal was constructed, see Cobb v. Hampshire & H. Canal Co., (18 P.) 35 340. 28. The delivery, simultaneously with a war- ranty deed of land, of an earlier agreement, under seal, by the grantee to purchase the land, subject to a reservation of the wood, which had been previously sold to another, with the right to remove it, operates as a license to the latter to enter and cut the wood, although the deed contains no such reservation. Driscoll v. Marshall, (15 G.) 81 62. 29. In trespass qua/re clausu/m, a lease will not support a plea of license. Johnson v. Carter, 16 443. 30. In such an action, the defendant cannot, under the general issue, prove a license to enter. Ruggles «. Lesure, (24 P.) 41 187 31. An authority, given to a widow by the heirs, to erect a monument upon the burial lo.t of her late husband, empowers her to give to the contractor a license to enter the lot for thit purpose, and to remove the monument if it is not satisfactory, or if she does not pay for it. Fletcher v. Evans, 140 241. Lien. I. General Rules; common Law Lien. (1.) "When and how a lien is created. (2.) "Waiver; extinguishment; enforcement. II. Mechanic's and Materialman's statu- tory Lien on real Property. (1.) How created; effect thereof. (A.) General principles. (B.) General requisites of the contract; priority of the lien. {O.) Owner's authority. (D.) One contract for different jobs. (2.) Filing the statement; subsequent pro- ceedings to enforce the lien. (3.) Miscellaneous rulings under former statutes. III. Mechanic's and Materialman's statu- tory lien on a Vessel. [As to the lien of the United States for duties, see Customs, etc. For rulings relating to liens in par- ticular cases, see Agency, V,(l); Attachment, I; (3); I, (5); III; Attorney, III, (2); Bank and Banking ; Bankruptcy; Billob' Lading; Board- ing-House; Carrier, I, (8); Chattel Mortgage; Collateral Security; Corporation; Deed; Inn and Innkeeper; Insolvent; Insurance Com- pany; Joint Tenants, etc.; Mortgage; Pilot, II, Pledge; Beward, Offer of; Sale, I, (2) ; II; IV, (2); Savings Bank, II; Shipping, III.'] I. General Rttles; common Law Lien. (1.) When and how a lien Is created. 1. As to the definition and general character- istics of a lien, see, per Shaw, Ch. J., in Arnold ». Delano, (4 C.) 58 33. 2. A lien on personal property cannot be cre- ated without the authority of the owner. Hollingsworth v. Dow, (19 P.) 36 228; Globe Works v. Wright, 106 207; Hammond v. Danielson, 126 294. 3. But the authority may be implied from the circumstances. Hammond «. Danielson, 126 294. 4. In this Commonwealth, the vendor of land by an absolute deed has no lien upon the land for the purchase money, in the absence of a written agreement. Ahrend «. Odiorne, 118 261. 5. But a written agreement by the owner of land, to pay a certain sum out of the proceeds of the sale thereof, creates an equitable lien on the land. Pinch «. Anthony, (8 A.) 90 536. 6. And one, whose land is taken under the right of eminent domain, has a right, in the nature of a lien, upon the land, for his com- pensation. Drury ». Midland Railroad, 127 571. 7. A mere creditor, who happens to have in his possession articles of the debtor, has no lien upon them for his debt. Allen v. Megguire, 15 490. 8. So where they are deposited with him by the debtor for a particular purpose. Jarvi's v. Rogers, 15 389. 9. A man cannot have a lien upon his own goods. Arnold v. Delano, (4 C.) 58 33. 10. Therefore, when a vendor has a lien upon goods sold, it imports, ex vi termini, that the property has vested in the vendee. Arnold ». Delano, (4 C.) 58 33. LIEN, I, (1), (2). 951 11. A lien for the price of goods sold, is in- cident to the contract of sale, where there is no stipulation to the contrary; but where a term of credit is given by agreement, the vendee has a right to the possession without paying the money, and where he takes possession the lien of the vendor is gone, it being a right incident to possession. Arnold v. Delano, (4 C.) 58 33. See, also, Parks v. Hall, (2 P.) 19 206; Barrett v, Pritchard, (2 P.) 19 512. 12. A manufacturer has a lien upon goods delivered to him to be manufactured, for the labor and expense bestowed thereupon. Townsend v. Newell, (14 P.) 31 332. 13. But where he has no possession of the article, he has no lien. King «. Indian Orchard Canal Co., (11 C.) 65 231. 14. The holding of a bill of lading may be a sufficient possession to create a lien. Rice «. Austin, 17 197. 15. A mechanic has a lien for work and materials bestowed upon a chattel in his posses- sion, to the extent that he may retain possession of it, until he is paid, or enforce his lien under the statute. Doane v. Russell, (3 G.) 69 382; Bus- field v. Wheeler, (14 A.) 96 139. 16. But a mechanic has no lien upon prop- erty for labor done to it, if he agrees to do the labor in consideration of being employed and paid by the owner to do other labor for him. Stickney s. Allen, (10 G.) 76 352. 17. Independently of any statute, a lien of a mechanic, for repairs upon a vessel in his pos- session, exists at common law as well as in admiralty, and takes precedence of a prior mortgage. Hammond v. Danielson, 126 294. See, also, Donnell v. The Starlight, 103 227. 18. And such a lien upon an ordinary chattel, where the repairs were made by order of the mortgagor in possession, takes precedence of the mortgage. Hammond ». Danielson, 126 294 19. But a lien created by an agreement will not hold against a subsequent mortgage, if the owner is permitted to hold and use the property. Perkins «. Boardman, (14 G.) 80 [See, also. Chattel Mortgage.] 20. Statute liens, which give a preference to one class of creditors over another, are stricti juris, and are not to be extended beyond the clearly expressed intent of the legislature. Rogers v. Currier, (13 G.) 79 129. 21. A part owner of merchandise, who has given bonds to secure the payment of the United States duties, and afterwards pays them, has no lien upon the goods for such payment. Ladd v. Billings, 15 15. 22. Qu., whether the English decisions, which adopt a custom of merchants, giving a banker a lien for a general balance, state the law here. Brown v. New Bedford Inst'n for Sav., 137 262. 23. Such a rule does not here apply to a sav- ings bank, taking security for a specific note. Brown «. New Bedford Inst'n, etc., 137 262. 24. If, by the law of the state under which a foreign corporation is organized, it ha-; a lien upon the stock of a shareholder for a debt, such a lien is a good defence to an action here, by one to whom the shareholder has transfer! ed his stock. Bishop ». Globe Company, 135 132. 25. In the absence of any special provision in the charter or by-laws, a corporation has no such lien by our laws. Sargent v. Franklin Ins. Co., (8 P.) 25 90; Mass. Iron Co. v. Hooper, (7 C.) 61 183. 26. Qu., whether a by-law, giving such a lien, is operative against other creditors. Nesmithfl. "Washington Bk., (6 P.) 23 324; Plymouth Bk. v. Norfolk Bk., (10 P.) 27 454. 27. Apart from the statute, an agister has no lien upon cattle for their keeping, except by special agreement. See, now, St. 1878, Ch. 208, § 1; P. S., Ch. 192, § 32. Goodrich ■o. Willard, (7 G.) 73 183. 28. Semite, that a stable keeper has a lien upon a horse for his keeping. Papineau e. Wentworth, 136 543. 29. But not where he is merely a teamster, who keeps the horse in his stable with his other horses. Goell v. Morse, 126 480. 30. One who improves and trains a horse, so as to be in a condition to run at an illegal race, has a lien on the horse for his skill and expenses. Harris «. Woodruff, 124 205. 81. In the absence of a special agreement, a landlord has no lien upon the chattels left by his outgoing tenant, except for storing Ihem. Preston e. Neale, (12 G.) 78 222. 32. An insurance broker, who receives prem- iums and pays losses, has a lien on the policies and abandonments in his hands, for a general balance against the underwriter. Moody *>. Webster, (3 P.) 20 424. 33. But one, not a broker or general agent, who procures insurance in his own name for another, has no lien upon the policy for a balance of account, although he is the ship's husband. Reed v. Pacific Ins. Co., (1 Met.) 42 166 (2.) "Waiver; extinguishment; enforce- ment. 34. To complete the right of lien, it is essen- tial that the possession and right of possession of the goods should be continued and uninter- rupted; and a relinquishment of possession 'to the general owner is an abandonment of the lien. Jarvis v. Rogers, 15 389; Holly ». Huggeford,(8P.) 25 73; King v. Indian Orchard Canal, (11C.) 65 231; Stickney v. Allen, (10 G.) 76 352; Papineau «. 952 LIEN, I, (2); II, (1), (A), (B). Wentworth, 136 543. See, also, Per- kins B.Boardman, (14 G.) 80 481; Sears •». Wills, (4 A.) 86 212; "Walker v. Staples, (5 A.) 87 34; Wilkie v. Day, 141 68. 35. Thus where the lessor of woodland, with privilege of cutting and removing wood, retains a lien on the wood cut for his rent, he loses the lien by the removal of the wood with his con- sent. Wilkie v. Day, 141 68. 36. But, semble, that a stable keeper does not lose his lien, by allowing the owner of a horse to use him, returning him at night; although he loses it if the owner takes the horse and keeps him three weeks. Papineau «. Wentworth, 136 543. 37. The lien of a vendor for the price of goods sold ceases upon delivery, either actual or constructive. Parks ». Hall, (2 P.) 19 206; Chap- man v. Searle, (3 P.) 20 38. 38. A bailee of chattels loses his lien by a purchase from the owner, although it is void against the latter's creditors. Mexal e. Dearborn, (12 G.) 78 336. 39. Or by procuring them to be attached in his own suit against the owner. Legg v. Willard, (17 P.) 34 140. 40. But not where, after they have been attached at the suit of another, and he has receipted for them to the officer, under an agreement asserting his lien, he procures them to be attached in his own suit, and he again receipts for them, asserting his lien. Townsend v, Newell, (14 P.) 31 332. 41. For a case where it was held that the master of a whaling vessel, having a lien on the oil for supplies furnished the seamen, did not lose his lien by putting the oil on a wharf, whence part was taken by the owners, and after- wards returned, and by delivering the oil to a general agent, to be sold for settling the voyage. Barney v. Coffin, (3 P.) 20 115. 42. A lien upon goods in favor of a partner- ship is not lost by dissolution, and the assign- ment of his interest by one partner to the other; but it may be enforced by the latter in the name of. the firm. Busfield e. Wheeler, (14 A.) 96 139. 43. A corporation does not lose its lien upon a shareholder's stock for a debt, because the person in charge of the transfer office, on the certificate being presented to him, promises to make a transfer and issue a new certificate. Bishop v. Globe Company, 135 132. 44. Where a warehouseman, with whom goods had been stored by a carrier, delivered a portion of them without claiming his lien, but refused to deliver the remainder until his charges were paid, it was held that he had a lien on the remainder for his charges on all the goods. Barker v. Brown, 138 340. 45. A lien upon a chattel, for labor and materials, does not entitle the party to sell the chattel to enforce his lien. Doane v. Russell, (3 G.) 69 382; Briggs ■». Boston & L. Railroad, (6 A.) 88 246. 46. A justice of the peace has Jurisdiction of a petition to enforce a lien, under G. S., Ch. 151, § 21; P. S., Ch. 192, § 24, although the amount of the claim exceeds $100. Busfield v. Wheeler, (14 A.) 96 139. 47. Such a petition may be maintained, al- though it was not commenced for more than two years, and a demand of payment was not made for more than fifteen months, after com- pletion of the work. Busfield v. Wheeler, (14 A.) 96 139. 48. If the owner failed, pursuant to his agree- ment, to furnish materials, it is no defence that the petitioner ceased to work, and the unfin- ished work is of no value to the owner. Busfield v. Wheeler, (14 A.) 96 139. 49. Notice filed or recorded in the town clerk's office is not essential to the right to maintain the petition. Busfield v. Wheeler, (14 A.) 96 139. 50. Nor will the petition be defeated, because the petitioner demanded too much from the owner, and failed to describe the property cov- ered by the lien. Busfield v. Wheeler, (14 A.) 96 139. 51. For rulings as to the sufficiency of the notice issued upon the petition, and of the bill of particulars of the petitioner, see Busfield v. Wheeler, (14 A.) 96 139. 52. The statute uses the word "lien" in the same sense as that of the common law; and if the owner takes possession with the lienor's consent, the lien cannot be enforced under the statute. Vinal v. Spofford, 139 126. II. Mechanic's and Materialman's statu- tory Lien on real Property. (1.) How created; effect tbereof. (A.) General principles. 53. Mechanics' liens for labor on buildings are wholly the creation of the statutes upon the subject; there was no lien at common law for such labor. Trask v. Searle, 121 229. 54. Where the lien attaches, the statute, being remedial, will be liberally construed. Trask v. Searle, 121 229. 55. But upon the question whether the lien attaches, a different rule obtains. Liens are in derogation of the common law, and the court cannot extend the statute beyond,, the cases specially provided for. It cannot say that the statute, by implication, includes labor not within its terms; ... or that the performance of other labor, than that what the statute has ex- pressly named, shall thus create an interest in another's land. Trask v. Searle, 121 229. (B.) General requisites of the con- tract; priority of the lien. 56. No lien exists for labor in removing a building. Trask v. Searle, 121 229. LIEN, II, (1), (B), (0). 953 57. Or for hauling lumber and sand for a building. Webster «. Eeal Est. Imp. Co., 140 526. 58. Where a lien is claimed for putting in furnaces and ranges, the question whether the transaction was a purchase and sale, or furnish- ing materials for the building, is a mixed ques- tion of law and of fact. Turner v. Wentworth, 119 459. 59. As to a boiler, see Kelley *. Border City Mills, 126 148. 60. Qu., whether work upon -and materials for fences will create a lien upon the dwelling house. Hubbard v. Brown, (8 A.) 90 590. 61. A drain pipe is part of a house, for which a lien may be created, although the owner of the house does not own the fee of the street. Beatty v. Parker, 141 523. 62. There is no lien for planing and sawing lumber, without any agreement as to the use to be made thereof, although it is afterwards put into a building. Bennett «. Shackford, (11 A.) 93 444. 63. But if work was done upon materials in- tended for use, and actually used, in a building,, a lien therefor exists, although it was not done on the premises. Wilson v. Sleeper, 131 177. See, also, Dewing v. Wilbraham Cong. Soc, (13 G.) 79 414; Jones v. Keen, 115 170; Donaher v. Boston, 126 309; cited and commented upon in the case last cited. 64. It is not necessary that the agreement should be in writing. Whitford v. Newell, (2 A.) 84 424. 65. A general employment to work in "get- ing out finish," at day's wages, thereafter to be fixed, is sufficiently definite to create a lien. Wilson e. Sleeper, 131 177. 66. But in order to create a lien against a subsequent mortgagee without notice, it is necessary that the contract should be precise, certain, and definite, not subject to be affected, modified, or changed, at the will of one of the parties. Manchester v. Searle, 121 418. 67. As to the definiteness and precision re- quired in the contract, under St. 1851, Ch. 343. Sanderson v. Taft, (6 6.) 72 533. Under St. 1852, Ch. 307. Wilder v. French, (9 G.) 75 393. 68. That a sufficient contract with the owner will create a lien, entitled to priority over a sub- sequent mortgage, see Dunklee v. Crane, 103 470; Batchel- dere. Rand, 117 176. 69. So as to a subsequent conveyance. Hilton v. Merrill, 106 528; Smith «. Norris, 120 58; Gale 1>. Blaikie, 126 274; Amidon v. Benjamin, 126 276; Bttridge v. Bassett, 136 314. 70. But where the contract is made with one not the owner, and he subsequently procures a deed, and simultaneously gives back a mort- gage for the purchase money, so that his seisin is only instantaneous, the work then being in Vol. 1—120 progress, there is no lien as against the mort- gage, tor work done before or afterwards. Perkins v. Davis, 120 408; Ettridge ». Bassett, 136 314. See, also, Thaxter «. Williams, (14 P.) 31 49; Hayes v. Eessenden, 106 228. 71. Where, after the contract was orally made, the mechanic was induced by the own- er's fraud to delay signing it, until the latter had given a mortgage, without consideration, it was held that he might maintain a bill in equity to cancel the mortgage, before the payment was due. Hulsman ®. Whitman, 109 411. 72. If an entire contract for labor and mate- rials is made, and part payment is made before it is due, to enable materials to be purchased, no agreement can be inferred that the part pay- ment shall not reduce the sum for which a lien for labor may exist. Casey v. Weaver, 141 280. 73. Where one has furnished labor and mate- rials for an entire price, payable on completion, and has given no notice of his intention to claim a lien for the materials, he may enforce a lien for the value of the labor, although a partial payment has been made. Casey «. Weaver, 141 280. (C.) Owners authority. 74. In order to entitle the party to a lien, it is essential that there should have been an agreement with, or the consent of, the owner of the real property; and no lien, as against the owner, can be created for labor performed, un- der an agreement with a lessee, who has cove- nanted to make all repairs. Conant v. Brackett, 112 18. See also, Francis *. Sayles, lOl 435; Hayes v. Fessenden, 106 228; Hilton v. Mer- rill, 106 528. 75. But a lien may be enforced for labor per- formed in the erection of a house, under the employment of one, who has agreed with the owner to erect the house, and to pay and dis- charge all claims for labor and materials, so that there shall be no lien therefor. Mulrey v. Barrow, (11 A.) 93 152. See, also, Dewing v. Wilbraham Cong. Soc, (13 G.) 79 414; Bockwi od «. Wal- cott, (3 A.) 85 458; Hilton ®. Merrill, 106 528. 76. It is immaterial that the employer did not own the land, when he contracted for the work, if it was conveyed to him before the work was begun. Corbett v. Greenlaw 117 167. 77. Where A agreed with B, to convey land to him, on condition that he would build a house upon it within a certain time; and B made a contract with C to build a cellar wall, warranted to stand; and after the wall was built, and after B's authority had ceased, it was repaired by C, who, within 30 days thereafter, but more than 30 days after completion, filed his petition; it was held, that if he made the repairs without A's authority, he had no lien; otherwise if he 954 LIEN, II, (1), (C), (D). made them with A's knowledge of the contract, and at A's request, in order to fulfil his war- ranty. Worthen *. Cleaveland, 129 570. 78. For other cases, turning upon the question whether the work was done by the authority of the owner of the land, see Weeks v. Walcott, (15 G.) 81 54. See, also, Morse i>. Newbury School Dist., (3 A.) 85 307; Peabody v. Lynn Method. Soc, (5 A.) 87 540; Francis v. Sayles, lOl 435; Hayes v. Fessenden, 106 228; Davis v. Humphrey, 112 309; Smith ». Norris, 120 58. 79. An oral notice by the land owner, to the mechanics working under a contract with a builder, will not prevent their liens from at- taching. Shaw v. Tompson, 105 345. 80. As to the effect of a written notice by the owner, after the work has been partly done. Gogin v. Walsh, 124 516. 81. If the work is done for a contractor with the owner, and no lien exists when it is done, a subsequent rescinding of the contract will not give a lien against the owner. Clark v. Kingsley, (8 A.) 90 543. 82. Where the lien has attached, it is not de- feated by a conveyance by the owner; and in such a case, the statement is properly filed with- in 30 days after the completion of the original contract. Gale ii. Blaikie, 126 274. 83. And a lienor may attach the owner's con- veyance, as fraudulent against him and other creditors. Amidon v. Benjamin, 126 276. 84. Under the statute of 1855, a plasterer, employed by a builder, who has made a written contract with the owner, is entitled to a lien for his own labor and that of his apprentices, but not for that of his journeymen and laborers. Parker v. Bell, (7 G.) 73 429. 85. Where the owner of the land makes a contract with A to build a house, including laying a drain pipe, and A, with his knowledge, employs B to lay the pipe, and B employs C, with the owner's knowledge, to do part of the work, and furnish materials therefor, C may maintain a lien. Beatty «. Parker, 141 523. (D.) One contract for different jobs. 86. Under the G. S., a mechanic, who fur- nished labor and materials for an entire sum, under a contract with one not the owner, had no lien for materials, unless he gave notice to the owner of his intention to claim such a lien, before furnishing them. Morrison v. Minot, (5 A.) 87 403; Brewster «. Wyman, (5 A.) 87 405, note, overruling, pro tanto, Whitford v. Newell, (2 A.) 84 424. See, also, Bobbins v. Blevins, 109 219. 87. Under St. 1872, Ch. 318; P. S., Ch. 191, §§ 2, 3, if the statement filed fails to set forth the entire sum for the entire contract, and no notice was given to the owner, as required by the G. S., of an intention to claim a lien for materials, the mechanic has no lien, either for his labor or his materials. Gogin v. Walsh, 124 516. 88. Where C performed labor and furnished materials, under a contract with B, for an entire price, in the erection of four buildings, one on B's land, one on A's land, and the other two on land of others; and filed a petition, under the statute of 1872, to enforce a lien on the house and land of A, for labor on that house; and, on the trial, showed what such labor was worth; it was held that the petition could not be main- tained. Childs v. Anderson, 128 108. 89. As to the rule, where the contract speci- fies different sums for different buildings, see Wall v. Robinson, 115 429; Batch- elder v. Band, 117 176, cited and ex- plained in the case last cited. See, also, Worthley v. Emerson, 116 374. 90. It was not the intent of the statute of 1872 to disregard contracts, and create a lien for labor done upon any building, irrespective of the contract under which it was done. Childs v. Anderson, 128 108; Casey v. Weaver, 141 280. See, also, Smith ». Emerson, 126 169; Donaher ». Bos- ton, 126 309. 91. Where labor and materials were furnished under an entire contract, with no stipulation for a sepa.ate price for either, and there was no lien for the whole, there was no lien under the st. of 1855, or the G. S., for any part. Morrison «. Minot, (5 A.) 87 403; Brewster «. Wyman, (5 A.) 87 505, note ; Graves «. Bemis, (8 A.) 90 573; Mulrey v. Barrow, (11 A.) 93 152. 92. But a lien for extra labor might be en- forced. Mulrey v. Barrow, (11 A.) 93 152. See, also, Whitney v. Joslin, 108 103. 93. Where labor and materials were fur- nished, and a payment was made on general account, so that it could not be determined how much was due separately for each, there was no lien for any part. Driscoll ». Hill, (11 A.) 93 154. 94. But where the contract was entire, but no definite sum was specified, a lien might exist for the labor, although there was none for the materials. Felton ». Minot; (7 A.) 89 412. 95. Where the labor was performed upon two houses, the fact that the petitioner cannot state the precise share performed on each will not defeat his recovery, but the jury may fix the amount on each. Shaw v. Tompson, 105 345. 96. But where labor and materials are per- formed and furnished upon the land of differ- ent owners, under an entire contract, without stating separate prices, there can be no lien for any part. Kathbun v. Hayford, (5 A.) 87 406. LIEN, II, (1), (D); (2). 955 97. So where, labor was performed under an entire contract, partly on the land described in the petition, and partly on adjoining land. Foster v. Cox, 123 45; Rice v. Nan- tasketCo., 140 256. 98. If the work is done, partly upon land which the employer owns, and partly upon land to which he has no title, there is no lien upon either land. Stevens v. Lincoln, 114 476; Mc- Guinness v. Boyle, 123 570. 99. The question whether labor was fur- nished, upon each of time houses, under an entire contract, or a separate contract, is one of fact, as to which the decision of the judge who tries the cause without a jury is final. Turner v. Wentworth, 1 19 459. 100. Where A was employed by B to work upon B's building contracts for C and others, and worked on the different houses, and B paid him money from time to time on account gen- erally, and B failed; it was held that the pay- ment should be applied to the earlier it ms; and A might maintain a petition for work done on C's house only, which was not thus paid for. Sexton v. Weaver, 141 273. (2.) Filing tbe statement; subsequent proceedings to enforce the lien. 101. The lien is a creature of the statute, and can be preserved a^d enforced only by a strict compliance with the requirements of the statute. Gale v. Blaikie, 129 206. 102. The statement of account is intended to embrace only those charges which ,the lien secures, and it must be filed within 30 days after the last of the items secured is furnished; otherwise the lien Is lost. Gale «. Blaikie, 129 206. 103. Upon the question whether the notice was filed in time, under the peculiar circum- stances of each case, see Hubbard «. Brown, (8 A.) 90 590; Miller v. Batchelder, 117 179; Turner v. Wentworth, 119 459. 104. The provision, saving the statement in case of inaccuracy, etc. , does not provide that a lien may be saved by inserting in the state- ment a charge actually due, but for which there is no security by lien under the statute, if that charge covers all the articles furnished within 30 days before the filing. Gale v. Blaikie, 129 206. 105. That provision saves the statement in case of any overstatement or other error, in the amount of the claim, not wilfully and know- ingly made, including a failure to credit pay- ments, an insertion of a claim for which there is no lien, and the like. Parker v. Bell, (7 G.) 73 429; Lewin v. Whittenton Mills, (13 G.) 79 100; Whitford v. Newell, (2 A.) 84 424; Undeiwood v. Walcott, (3 A.) 85 464; Hubbard i>. Brown, (8 A.) 90 590; Whitney v. Joslin, 108 103; Corbett v. Greenlaw, 117 167; Smith ®. Norris, 120 58; Getchell v. Moran, 124 404; Sexton v. Weaver, 141 273. 106. Where, after the contract for the work was made, the respondent conveyed the land to his daughter, without the latter's knowledge, and in payment of a debt; but there was evi- dence to show that the daughter assented to and accepted it, and the petitioner knew the facts; it was held, that by filing his certificate, under the G. S., in the town clerk's office, naming the respondent as the owner, he lost his lien. Amidon v. Benjamin, 128 534. See, also, Kelly v. Laws, 109 395. 107. It suffices if the initials only of the owner's name are inserted in the statement, although the lienor knows his full name. Patrick v. Smith, 120 510; Getchell v. Moran, 124 404. 108. A mistake of the recording officer in the owner's name, in the record of the certifi- cate filed, does not affect the lienor. Getchell «. Moran, 124 404. 109. A description of the property suffices, although general, if it is " sufficiently accui ate for identification;" but if the description is un- necessarily detailed, and contradicts the petition, the latter will fail. Patrick v. Smith, 120 510; Bristow v. Evans, 124 548. 110. In the absence of any evidence, tending to show that the owner of the buildings was not also the owner of the land, an averment that the building belonged to the respondent, will be considered as applicable to the land under and adjoining the building. Patrick v. Smith, 120 510. 111. Under the G. S., it was sufficient, if the lienor gave the statement to the town clerk at the latte.' s house within the 30 days, and the latter then noted the receipt, although he took it to his office and recorded it after lie lapse of the 30 days. Wood «. Simons, 110 116. 112. It is not essential that the statement or certificate filed should contain an affirmative averment, that it contains " a just and true ac- count" of the amount due, " with all credits;" it suffices if the statement in fact contains such an account, not wilfully or knowingly inaccu- rate. Gilbert v. Fowler, 116 375. 113. A petition by one creditor, upon which another creditor served with notice does not appear, and judgment for the respondent there- upon, do not bar the latter creditor's petition. Sexton v. Weaver, 141 273. 114. Upon the trial of a petition under the statute, the question whether a promissory note was taken as part payment, is a question of fact. Casey v. Weaver, 141 280. 115. The provision of St. 1872, Ch. 318, § 2; P. S. Ch. 191, § 6, requiring the statement to set forth "the number of days of labor per- formed or furnished," does not apply to a claim arising upon a contract for labor only. Patrick v. Smith, 120 510. 116. If the petition is inserted in a writ, sued out within 90 days after the petitioner has ceased to perform labor or furnish materials, it is in time, although not served until after the 90 days. Spofford v. Huse, (9 A.) 91 575. 956 LIEN, II, (2), (3). 117. A joint petition may be maintained by two, who have performed the labor together, and for their common benefit, and if one dies, the other may prosecute it. Rockwood v. "Walcott, (3 A.) 85 458. 118. If the petition alleges that the contract was made with the petitioner, and the answer admits the contract, and upon the trial it appears that the petitioner's name was used as that of a partnership, the nonjoinder of the the other partner is not available to the respond- ent, without an amendment of his answer Gilbert v. Fowler, 116 375. 119. The owner of the building or structure is a necessary party to the petition. Peabody «. Lynn Method. Soc., (5 A.) 87 540. 120. Under the existing statute, the husband of a married woman, who is the owner, is. not a necessary party. Whitney c. Joslin, 108 103. 121. If the petition is filed in vacation, the order of notice, under St. 1871, Ch. 78; P. S., Ch. 191. § 16, need not be made returnable at the next term. Worthen v. Cleaveland, 129 570. See, also, Donnell v The Starlight, 103 227. 122. Other workmen summoned in have the same rights, as if they had filed separate petit- ions at the same time. Dewing D.Wilbraham Cong. Soc, (13 G.) 79 414. 123. A description of the contract in the petition, as "an oral contract between the petitioners of the one part, and J. S., carpenter and builder, of the other part," suffices. Parker ». Bell, (7 G.) 73 429. 124. A general description of the property also suffices. Parker v. Bell, (7 G.) 73 426. 125. An objection that the contract is not sufficiently set out .must be taken by demurer. Goulding e. Smith, 1 14 487. 126. The admission of the land owner is com- petent evidence of the amount due. Batchelder v. Rand, 117 176. 127. The contract price, where that is fixed, is the amount due, for which the lien may be maintained, in the absence of fraud, and that question is not to be submitted to the jury. Ward «. Edmunds, HO 340. 128. In these proceedings, under G. S., Ch. 150, § 18; P S., Ch. 191, § 21, the whole case is not to be submitted to the jury, but only such material questions of fact as arise upon a question stated, or an issue framed, or other- wise as the court orders. Ward «. Edmunds, 110 340. 129. Bankruptcy of the owner does not effect the proceedings, except that, where the state- ment is not filed until after the commencement of the bankruptcy proceedings, the petition may be entered in the superior court, and ordered to be continued, to await the result of the bank- ruptcy proceedings. Clifton v. Foster, 108 238. 130. But it will not be continued where the debtor has, before his bankruptcy, legally conveyed all his interest in the land. Glendon Co. v. Townsend, 120 346. 131. A debtor, who has conveyed the land with warranty, is not entitled to dissolve the lien, under St. 1874, Ch. 321; P. S., Ch. 191, §42. Glendon Co. i>. Townsend, 120 346. 132. Interest, even if not claimed in the statement or petition, will be allowed upon the debt, from the filing of the petition till the judgment, and upon the judgment until satisfac- tion out of the proceeds of the sale. Johnson ». Boudry, 116 196; Casey v. Weaver, 141 280. (3.) Miscellaneous rulings under former statutes. 133. Under St. 1819, Ch. 156, it was held that: The owner of the land could come in and defend, although not a party to the contract. Thaxter v. Williams, (14 P.) 31 49; Van Vronker i>. Eastman, (7 Met.) 48 157. There could be no lien where the debtor had only an instantaneous seisin. Thaxter «. Williams, (14 P.) 31 49. 134. Under R. S., Ch. 117, it was held that: The lien attached, although the contract was not recorded until after the owner's death, Foster v. Stone, (20 P.) 37 542. If husband and wife joined in a contract to erect a building upon her land, the lien attached only upon the husband's estate. Kirby c. Tead, (13 Met.) 54 149. And if she was joined in the petition, the petitioner might discontinue as to her, without " Kirby v. Tead, (13 Met.) 54 149. A lien upon the husband's estate, under such a contract, was not dissolved, where a dispute arose between the parties as to the amount due, and a submission was made to arbitrators, and the petition was filed within six months after the award, although more than six months after the work was done. Kirby v. Tead, (13 Met.) 54 149. Aliter, if the postponement was in conse- quence of a parol agreement or formal cove- nant, or from considerations of equity or of benefit to all parties. Hilliard v. Allen, (4 C.) 58 532. The lien was dissolved, if the contract was subsequently modified, and the alteration was not recorded, or the petition not brought, within six months after the last instalment became due, under the original contract. McClallan e. Smith, (11 C.) 65 238. The notice to the owner of land and other creditors need not have been given at any par- ticular term of the court. Rockwood «. Walcott, (3 A.) 85 458. If the owner of land subject to a hen mort- gaged it, and remained in possession, the mort- gagee was not entitled to notice. Howard ■». Robinson, (5 C.) 59 119. LIEN, II, (3); III. 95T A lien could not be acquired under a written contract, not purporting to create a lien, made with one who had then no title, although he acquired a title before the contract was recorded, or the labor or material furnished; and his ad- missions, after a sale of his interest, were not competent against his grantee. Howard v. Veazie, (3 G.) 69 233. 135. Under St. 1851, Ch. 343, it was held that a wall, built around the stack of an iron furnace, to protect it from an earthslide, was not a building; and including work upon such a wall in the statement filed in the town clerk's office, defeated a lien for work upon the T 1TTT13P P Truesdellc. Gay, (13G.) 79 311. 136. And that if the certificate, filed in the registry of deeds, failed to credit a payment of $1, the lien was dissolved. Lynch «i. Cronan, (6 G.) 72 531. 137. As to the requisites of a petition under the statute of 1851, with respect to the state- ment of the contract, and of the ownership of the building by the contractor, see Simpson o. Dalrymple, (11 C.) 65 308. 138. Under that statute, the workman had no lien for labor on a building, under a contract with one who was employed by the owner, but had not contracted with him for erecting, alter- ing, or repairing the building. Belding«.,Cushing, (1 G.) 67 576. 139. And it made no difference that the per- son, with whom he contracted, had an agree- ment with the owner, to purchase the same on certain conditions, and that he afterwards did purchase it and received a conveyance thereof. Metcalf v. Hunnewell, (1 G.) 67 297. 140. Nor did a lien exist under such a con- tract, with a person employed by the land owner to erect a building, il an agreement between the employer and the land owner, for the erec- tion of the building, was made before that statute took effect,, although after its enactment, and although the labor was performed after the statute took effect. Donahyn.'Clapp, (12 0.) 66 440. 141. And to give a lien under that statute for wages v the contract must have been an express contract, entered into before the commencement of the work. Parker v. Anthony, (4 G.) 70 289. 142. Before parties were made competent witnesses, the mechanic's book and his supple- tory oath were not evidence in his favor. Lynch v. Cronan, (6 G.) 72 531. III. Mechanic's and Materialman's statu- tory Lien on a Vessel. 143. A light boat, made to be used as a float- ing light, is a vessel, subject to a lien within the statute. Briggs v. Light Boat, (7 A.) 89 287. 144. A contract to construct a vessel is not a maritime contract; a lien created by a state sta ute, for labor and materials furnished in the construction of a vessel, is not a maritime lien; and, therefore, the statute of the Common- wealth giving such a lien is constitutional, and the state courts have, and the United States ad- miralty courts have not, jurisdiction to enforce such a lien. McDonald v. The Nimbus, 137 360. See, also, Foster v. The Richard Busteed, 100 409; Donnell v. The Starlight, 103 227. [See, also, Jurisdiction, II: and the cases in the United States courts, cited in McDonald v. The Nim- bus, 137 360.1 145. A builder's lien, against a vessel owned by the United States, may be enforced in the courts of the Commonwealth, if the United States took title subject to the lien. Briggs n. Light Boat, (7 A.) 89 287; Briggs 4i. Light Boats, (11 A.) 93 157. 146. A lien exists at common law, as in ad- miralty, independently of any statute, for re- pairs made by a mechanic upon a vessel in his possession. Hammond v>. Danielson, 126 294. See, also, Donnell v. The Starlight, 103 227. 147. The statute contemplates that the vessel must be in the Commonwealth, when the debt is contracted. McDonald ». The Nimbus, 137 360. 148. Where a vessel's hull and spars are completed in a port of another state, and suffi- cient cargo for ballast taken in, to enable her to proceed to a port in this Commonwealth, where materials necessary to the rigging and equip- ment of the vessel are first put upon her. those materials are furnished in her construction, within the statute. McDonald v. The Nimbus, 137 360. 149. In order to give a lien, the materials must have been furnished specifically for use in the particular vessel, and must have been used in her, or fitted and prepared for £uch use. If so fitted and prepared, there is a lien, although they were not used. Rogers «. Currier, (13 G.) 79 129; Barstow v. Robinson, (2 A.) 84 605; Youngs. The Orpheus, 119 179. See, also, Jones ». Keen, 115 170. 150. Labor and materials, furnished in the alteration of a vessel for new uses, are fnr- nished for her "construction and repairs," within the statute. Donnell n. The Starlight, 103 227. 151. A lien is not defeated by the fact that the materials for the vessel were furnished upon credit, or that they were delivered pri- marily upon the credit of the builder, if exclu- sive credit was not given to him, and no note or other security was taken. Young v. The Orpheus, 119 179. 152. One, who performs labor on two vessels, under an entire written contract, for a round sum, cannot maintain a lien upon one only for the work done on that vessel, whatever may be the reason for his failure to complete. Jones ». Keen, 115 170. 153. And a destruction by consent of both parties of the contract, and the making and antedating of a new contract, applicable to one 958 LIEN, III. only, after the work is done and the materials furnished, will not give a lien. Jones i). Keen, 1 15 170. 154. Aliter, if no entire sum was stipulated, ■but certain rates were specified, or no rates specified. Jones v. Keen, 115 170. 155. The rules in this respect are the same, as where the work is done upon two or more buildings, and the question arises upon a mechanic's lien. Jones ■». Keen, 115 170. [See ante, II, (1), ff>).] 156. In order to create a lien upon a vessel, the labor must have been performed, or the materials furnished by virtue of a contract, express or implied, with the owner, or with an agent, contractor, or subcontractor with the owner, or some person employed to construct, repair, or launch the vessel, or to assist therein. Bates v. Emery, 134 186. See, also, Jones v. Keen, 1 15 170. 157. A contract with a sailmaker for sails for an unfinished vessel, made by one who has a contract with the owner, that he will put in such sails, which shall be his own property, and thereupon he shall use the vessel, gives no lien upon the vessel; and the owner is not estopped to set up the facts, by that person's false representation that he was the owner. Bates ». Emery, 134 186. 158. The lien takes priority of a mortgage upon the vessel. Donnell v. The Starlight, 103 227; Jones*. Keen, 115 170. 159. A lien once acquired continues without limitation of time, until the debt is satisfied, al- though the ownership is changed. Poster v. The Richard Bustead, lOO 409; Young «. The Orpheus, 119 179. 160. The petition to enforce the lien is not barred hy a general decree, dismissing a former petition to enforce the same lien, upon techni- cal grounds; but proceedings may be stayed until the costs of the former proceedings are paid. Poster v. The Richard Busteed, lOO 409. 161. The identity of the vessel is not destroyed and the lien lost, because the vessel afterwards received an injury, in consequence of which she sank, lost her deck, rigging, etc., and be- came of no vajue, and was raised and repaired at great expense by a purchaser. McMonagle v. Nolan, 98 320. 162. The statement filed need not show the kind or the purpose of the work. McMonagle «. Nolan, 98 320. 163. The lien is not defeated by any error in the statement as to the amount or items, or by including a claim for materials, for which no lien exists, or materials furnished for another xessel, if it was made ignorantly or accidentally, and not knowingly and wilfully. Jones v. Keen, 115 170; Young ■». The Orpheus, 119 179; McDonald «. The Nimbus, 137 360. 164. But if the amount of the claim is wil- iully and knowingly overstated, the lien is lost. Jones i>. Keen, 115 170. 165. So if the statement alleges that a credit exists, the amount of which is not known and cannot be computed by the petitioner, where in fact he knows very nearly the amount; or if it alleges that the owner is unknown, where in fact he knows who the owner is. Story v. Buffum, (8 A.) 90 35. 166. Where the vessel was nearly finished in another state, but was completed at a port here, a statement filed in the latter port, is notice to all subsequent purchasers. McDonald v. The Nimbus, 137 360. 167. Where a statement was thus Uied within four days after the first departure of the vessel, but the petition was not filed until four and a half years afterwards, during which time she frequently returned to that port, and was sold; it was held that the petition might be main- tained. McDonald v. The Nimbus, 137 360. 168. The statement may be filed before the departure of the vessel. Young i>. The Orpheus, 119 179. 169. The vessel does not depart, within the meaning of the statute, by leaving Chelsea for Boston, as the shore of Chelsea is within the limits of the port of Boston. Young ». The Orpheus, 119 179. 170. But if the statement is not filed within four days after her first departure, the lien is lost, although she was attached before her departure, under a petition to enforce the lien. Hawes v. Mitchell, (15 G.) 81 234; Dunham v. Johnson, 135 310. 171. The right to enforce the lien may be con- tested by one who has another lien, although he has not sought to enforce the latter under the statute, but has proceeded by libel in the United States admiralty court. Hawes «. Mitchell, (15 G.) 81 234. 172. Under St. 1855, Ch. 231, providing for enforcing the lien in the manner prescribed in R. S., Ch. 117, the petition could not be filed until the expiration of sixty days from the time when the debt was payable. Tyler v. Currier, (10 G.) 76 54. 173. Under the st. of 1855, after attachment of the vessel, she cannot rightfully be sold dur- ing the pendency of the proceedings. Cobum ii. Clark r (3 A.) 85 207. 174. The order of notice upon the petition may be issued after the attachment, at any time before the hearing, and the court may allow it to be served upon the respndents out of the State. Donnell ». The Starlight, 103 227. 175. It may be made returnable at the same term at which the petition has been filed. Donnell v. The Starlight, 103 227. 176. If no objection to the form of the petition is taken by demurrer or answer, a general objection to the sufficiency thereof, which was overruled at the trial, will not entitle the respondent to take specific objections thereto, upon the hearing in the supreme judicial court upon exceptions. McMonagle v. Nolan, 98 320. LIFE ESTATE— LIMITATION OF ACTION, I, (1). 959 177. Interest, upon the amount due for labor or materials, will be computed from the time of filing the petition. Barstow v. Robinson, (2 A.) 84 605. 178. If interest is not due as part of the debt, but only as damages, it cannot be computed from the time of a demand, made before filing the petition. Young v. The Orpheus, 119 179. life estate. [See Curtesy; Devise and Bequest; Do'Web; Tenant iron Life; Trust. Life insurance. [See Insurance, V.] Life, tenant for. [See Tenant fob Life.] Light and air. [See Condition, art. 22; Easement, arts. 27, 70, 71, 89, 91, 115, 148, 170; Highway, art. 379; INJUNCTION, art. 8; Landlord, etc., art. 313.1 Limitation of action. I. General Rules. (1.) Effect and application of the statute. (2.) Limitation in equity; cases of trust, in equity and at law. (3.) Statutes of other jurisdictions. II. Pleading the Statute. III. Decedent's Estate. (1.) Special statutory bar in favor of an execu- tor or administrator. (2.) Statutory exceptions. (3.) Equitable relief after two years. (4) Land sold by an executor or aolministra- tor. (5.) Action by creditor against heir, etc. IV. What Times aee limited in other Cases. (1.) Attested note; bank bill. (2.) Real action; specialty; judgment. (3.) Simple contract; tort; penal statute. V. Running of the Limitation. fl.) General rules as to beginning. (2.) General rules as to ending; mode of computation. (3.) Mutual and open account current. (4.) Fraudulent concealment. (5.) Acknowledgment and new promise. (6.) Part payment. VI. Suspension of the Limitation. (1.) Absence. (3.) Disability. (3.) Death. [As to limitation in a criminal cause, see P. S., Ch. 213, §§ 25, 26. For special limitations in particular actions, see tbe titles of the actions and subjects of action. As to the limitation upon an application for a Jury in a highway cause, see Highway, IV, (2). Generally, see, also, Adverse Possession; Mortgage ; Prescription.] I. General Rules. (1.) Effect and application of tbe statute. 1. The statute of limitations affects the remedy only; and so is not affected by the pro- vision of the United States constitution, forbid- ding the enactment of laws impairing the obli- gation of contracts, provided a reasonable limitation only is imposed. [See Constitutional Law, II, (1).] 2. The statute proceeds upon the presumption that the defendant, from lapse of time, has lost the evidence which would have availed him in defence, if he had been seasonably called upon; and it is upon that ground that an acknowledg- ment within six years sufficed. Baxter «. Penniman, 8 133. 3. It is said that a creditor may collect a debt due to him, although barred by the statute, if he can do so by means of a lien, an appro- priation of payments, or the exercise of other legal or equitable rights, without resorting to an action. Allen v. Edwards, 136 138. 4. But a debt due from a legatee to a testator, which was barred when the latter died, cannot be deducted from the legacy. Allen v. Edwards, 136 138. 5. Where one has the right to elect either of two actions, the one which he elects is not barred, because the other would have been barred by the statute. Lamb v. Clark, (5 P.) 22 193. 6. And in an action for malicious prosecution, the plaintiff may have damages for his impris- onment, although an action for false imprison- ment would have been barred. Graves i>. Dawson, 133 419. 7 Where a mortgage upon either real or personal property is given to secure a promissory note the remedy upon the mortgage is not affected by the running of the statute upon the Thayer v. Mann, (19 P.) 36 535; Crain v. Paine, (4 C.) 58 483. See also, American Bank «. Baker, (4 Met.) 45 164. 8. There is no time prescribed by law, within which the executor or administrator of a 960 LIMITATION OF ACTION, I, (1), (2), (3). defendant wno dies, pending an action, must be cited in to defend. Brighton Bk. v. Russell, (13 A.) 95 221. 9. But semble, that a scire facias is a new suit ■within the statute. Brighton Bk. •». Russell, (13 A.) 95 221. 10. Except as otherwise expressly prescribed, the statute of limitations does not run against the Commonwealth. Ward t>. Bartholomew, (6 P.) 23 409; Piper ». Richardson, (9 Met.) 50 155. 11. So as to a writ of dower, before the G. S. Parker v. Obear, (7 Mst.) . 48 24. 12. As to a delay of twenty years by a cred- itor to levy his execution upon land, see Gore v. Brazier, 3 523; Wyman v. Brigden, 4 150. C2. > Limitation In equity ; cases of trust, In equity and. at law, [See, also. Laches. As to pleading the statute in equity, see post, II.] 13. The provisions of the R. S. as to limita- tions applied only to actions at law. Bancroft v. Andrews, (6 C.) 60 493. 14. But equity gives full force and effect to the statute, not as a rule of comity, or as a measure of judicial discretion, but as operating upon equitable proceedings suo vigore. Dodge ii. Essex Ins. Co., (12 G.) 78 65. See, also, Farnam v. Brooks, (9 P.) 26 212; Ayres v. Waite, (10 C.) 64 72. 15. Thus a bill in equity to reform a con- tract, filed more than six years after notice, is barred. Dodge v. Essex Ins. Co., (12 G.) 78 65. 16. So a bill by creditors of a bank against stockholders, for loss of or deficiency in the capital stock, must be filed within six years after the loss occurs. Baker v. Atlas Bk., (9 Met.) 50 182. 17. So of a bill by receivers of a bank to confirm an assessment under St. 1860, Ch. 167, must be brought wi hin six years after the in- junction is made perpetual. Comm. v. Cochituate Bk., (3 A.) 85 42. 18. B ut m equity, and also at law, the statute does not run in favor of a trustee against the cestui que trust, until the trustee has repudiated the trust, and knowledge of such repudiation is brought home to the cestui que trust. Davis v. Coburn, 128 377. See, also, Merriam «. Hassam, (14 A.) 96 516; Childs v. Jordan, 106 321; Jones B.McDermott, 114 400. 19. But where the trustee sells the trust estate to a purchaser for value, without notice of the trust, his possession is adverse to the trustee and the cestui que trust, subject to any disability of the latter; and if continued long enough to bar the legal right, it will bar also the equita- ble right. Merriam v. Hassam, (14 A.) 96 516. See further on this subject, Atty.-Gen'l ®. Federal St. Meeting House, (3 G.) 69 1; Whitings. Whiting, (4 G.) 70 236. 20. The exception of trusts is confined to express trusts, and does not extend to construc- tive trusts, resulting from partnerships, agencies and the like. Paruam ». Brooks, (9 P.) 26 212; Codman v. Rogers, (10 P.) 27 112. 21. It applies to actual subsisting trusts, which are continuous in their nature, and to those which attach to a specific property, or to a particular fund in the hands of the party sought to be charged. Harlow e. Dehon, 111 195. 22. A right of action to enforce a constructive trust is barred at law or in equity in six years. Parnam v. Brooks, (9 P.) 26 212; Johnson «. Ames, (11 P.) 28 173; Har- low v. Dehon, 111 195. [See, also;'post. III, (1); III, (2).] 23. A bill to redeem land, brought after twenty years from the time when the mortgagee took possession, is barred. Ayres ». Waite, (IOC.) 64 72; Stevens v. Dedham Sav. Inst., 129 547. 24. So where it is brought by an assignor of the mortgage against the assignee, under an as- signment, as collateral security, who, after breach, obtained judgment, and seisin and pos- session of the land under an execution, and after holding the land three years sold it; and the bill was brought within 20 years after the sale, but more than 20 years after possession was obtained. Stevens v. Dedham Sav. Inst., 129 547. 25. As to the effect of fraud or mistake upon the statute, in an equitable suit, see Wells v. Child, (12 A.) 94 333. (3.) Statutes of otber jurisdictions. 26. Before St. 1880, Ch. 98; P. S., Ch. 197, § 11, the statute of limitations of another state could not be enforced here, although the con- tract was made in that state, and between citi- zens thereof. Pearsall v. Dwight, 2 84; Byrne v. Crowninshield, 17 55; Bulger «. Roche, (11 P.) 28 36; Brigham «. Bigelow, (12 Met.) 53 268; Way«. Sperry, (6C.) 60 238; Putnam «. Dike, (13 G.) 79 535. [See, also, post, VI, (1) ] 27. Congress, in the exercise of its constitu- tional power respecting bankruptcy, may regu- late the limitation of actions by or against an assignee; and such limitations apply where an action is brought in a state court. French v. Merrill, 132 525. 28. An action by an assignee in bankruptcy against an officer holding the proceeds of the sale of the bankrupt's goods, attached within four months of the commencement of the bank- ruptcy proceedings, is not barred by U. S. R. S. , § 5057, if begun within two years after de- LIMITATION OF ACTION, I, (3); II; III, (1). 961 mand and refusal, although not until eleven years after the attachment. ' French v. Merrill, 132 525.. 29. Under that section, an action to collect a debt due to the estate, must be brought within two years from the time when the cause of ac- tion accrued to the assignee. Boss v. Wilcox, 134 21. 30. Congress has the like power with respect to national banks. Peterborough Nat. Bk. v. Childs, 130 519. 31. Although the penal action against a na- tional bank, for taking excessive interest, is lim- ited to two years, the forfeiture under U. S. B. S., §§ 5197, 5198, may be enforced in defence of an action brought in a state court upon the security, and it is not limited to two years after the unlawful taking of interest. Peterborough Nat. Bk. t>, Childs, 130 519; Peterborough Nat. Bk. «. Childs, 133 248. n. Pleading the Statute. 32. Formerly the defendant could avail him- self of the statute in an action before a justice of the peace, under a plea of non assumpsit. Williams v. Boot, 14 273. 33. In an action upon a debt, if the statute of limitations is pleaded, the plaintiff may reply a new promise; his action is founded upon the debt, and the new promise is only a waiver of the defence. Baxter » Penniman, 8 133; Little v. Blunt, (9 P.) 26 488; Ilsley v. Jewett, (3 Met.) 44 439; Foster v. Shaw, (2 G.) 68 148. 34. And under the former system of plead- ing, the new promise might be proved under a traverse of the plea. Baxter v. Penniman, 8 133. 35. Senible, that an executor or administrator might declare upon a promise to the decedent, and show an acknowledgement to himself, to avoid the plea of the statute. Browne. Anderson, 13 201; Sullivan v. Holker, 15 374. 36. Semble, that under the present system of pleading, if no replication is ordered by the court, the plaintiff may prove a new promise without having alleged it. Cook v. Shearman, 103 21; Chace v. Trafford, 116 529. 37. In pleading the special statutory limita- tion, in suits against executors and administra- tors, it is sufficient to allege that the defendant posted notifications of his appointment in two public places of the town, without specifying the places; and that he gave a bond according to law. Sewall v. Valentine, (6 P.) 23 '276; Burditt v. Grew, (8 P.) 25 108. 38. Where the defendant pleads the statute as a bar in equity, he must answer, in support of his plea, as to all of the charges in the bill Vol. 1—121 which might avoid the bar, by showing a new promise, but not as to the original cause of action. Chapin v. Coleman, (11 P.) 28 331. 39. In an action to recover money lost at gaming, where the declaration contained three counts, an answer t at " the cause of action, the alleged offence mentioned in the plaintiff's declaration, was not committed within one year before the suing out of the plaintiff's writ, wherefore, etc.," is sufficient to set up the statute to all the causes of action. Cole v. Groves, 134 471. 40. One summoned as trustee on a foreign attachment, who relies upon the statute, should set it up in his answer. Hazen v. Emerson, (9 P.; 26 144. 41. In slander, if no notice is given of a de- fence of the statute, the plaintiff may give evi- dence of words spoken more than two years before the commencement of the action; but where such proof was given under a declara- tion, alleging the speaking of the words within two years, the defendant was allowed, without terms, to file a plea, setting up the statute. Brickett v. Davis, (21 P.) 38 404. 42. Where the statute is pleaded in slander, the burden is upon the plaintiff, to show that the words were spoken within two years. Pond v. Gibson, (5 A.) 87 19. 43. A defendant is not estopped from setting up the statute, by filing an admission of the plaintiff's ca?e, in order to obtain the right to open and close. Emmons v. Hayward, (11 C.) 65 48. 44. Under the former system of pleading, where the statute was pleaded, the plaintiff might reply, generally, a fraudulent conceal- ment of the cause of action by the defendant, and a discovery thereof by the plaintiff within the statutory time, without setting forth the details. Homer v. Fish, (1 P.) 18 435; Welles «. Fish, (3 P.) 20 74. III. Decedent's Estate. [See, also, post, VI, (3).] (1.) Special statutory bar In favor of an executor or administrator. 45. The statute, limiting an action against an executor or administrator to two years after he has given his bond, includes an executor, who, being also residuary . egatee, has given a bond to pay debts and legacies. Jenkins -v. W< od, 134 115. See, also, Thompson ». Brown, 16 172; Holden v. Fletcher, (6 C.) 60 235; Troy Nat. Bk. ». Stanton, 116 435. 46. A creditor who recovers a judgment against an executor, in an action upon the debt, brought within the two years, is not entitled, after the return of the execution thereupon un- satisfied, to brins an action upon (he judgment, after the expiration of the two years, although 962 LIMITATION OF ACTION, HE, (1). the executor has given such a bond as residuary legatee. Jenkins v. Wood, 134 115. 47. In computing the two years, the day upon which the bond was given must be excluded. Paul «. Stone, 112 27. 48. The statutory bar of two years, does not apply to an action against an executor for a legacy. G. S., Ch. 97, § 22; P. S., Ch. 136, §19. Kent v. Dunham, 106 586. See, also, Brooks v. Lynde, (7 A.) 89 64. 49. But a lapse of twenty years creates a pre- sumption of payment of a legacy, and the ques- tion whether the legatee has overcome that presumption is one of fact. Kingman v. Kingman, 121 249. See, also, Andrews v. Sparhawk, (13 P.) 30 393; Cheever v. Perley, (11 A.) 93 584. 50. And an executor's bond is a continuing obligation, each violation of which furnishes a cause of action; so that an action upon the bond by a legatee is in time, if the duty of paying him arose within twenty years, although there was an earlier breach in the duty of investing for his benefit. Thayer v. Keyes, 136 104. See, also, Prescott v. Bead, (8 C.) 62 365, and Executor and Administrator, II, (4). As to a guardian's bond, see Guar- dian, V. 51. The two years' limitation applies to an action by a collector of taxes. Kichfl. Tuckerman, 121 222. 52. It applies to a demand arising upon a sealed instrument given by the testator. Harlow v. Dehon, 111 195. 53. And to a case of trust, where the trust is terminated by death. Harlow v. Dehon, 111 195. 54. But not where the decedent was a trustee who had misappropriated the fund, and the cestui que trust, or his representative, has done nothing to change the character of the trust. Burgess v. Keyes, 108 43. 55. For a peculiar case, where it was held that the two years' bar was a defence to a bill in equity, to enforce a claim for contribution, towards a payment made by the plaintiff within the two years, upon a debt which accrued be- fore the two years began to run, see Bacon v. Pomeroy, 104 577. 56. Since the enactment of the G. S., an ad- ministrator de bonis non is entitled to avail him- self of the statutory limitation. Fisher *. Metcalf, (7 A.) 89 209. 57. Under St. 1852, Ch. 204, an action upon a decree of the probate court, for the payment of a balance due from a deceased guardian to his ward, was barred in two years from the ap- pointment of an administrator of the guardian's estate, although the decree was not made until the two years had expired. Bemis v. Bemis, (13 G.) 79 559. 58. For rulings as to the effect of St. 1852, Ch. 294; St. 1855, Ch, 283; and G. S., Ch. 97, § 5, upon rights of action which had accrued, or were barred, under the statutes superseded by them, see King v. Tirrell, (2 G.) 68 331; Hil- dreth v. Marshall, (7 G.) 73 167; Page «. Melvin, (10 G.) 76 208; Thompson v. Burnham, (13 G.) 79 211: Bemis v. Bemis, (13 G.) 79 559; Bigelow v. Bemis, (2 A.) 89 496. 59. Under St. 1788, Ch. 36, and St. 1791, Ch. 28, it was held that the limitation of actions against executors, etc., applied only to general demands against the decedent's estate, not to property held in trust, which had come to the hands of the executor, etc., and could be specifically distinguished from the general property. Johnson v. Ames, (11 P.) 28 173. 60. For other rulings as to the application and the time of running of St. 1791, Ch. 28, now superseded, see Hemenway v. Gates, (5 P.) 22 321; Sewall v. Valentine, (6 P.) ' 23 276; Bur- ditt v. Grew, (8 P.) 25 108. 61. An executor or administrator is bound to plead the special statute of limitations, and no promise by him can waive or avoid the statute, so as to bind the estate, and enable the creditor to maintain a suit in equity or at law. Waltham Bk. v. Wright, (8 A.) 90 121; Wells v. Child, (12 A.) 94 333. See, also, Brown v. Anderson, 13 201; Dawes v. Shed, 15 6; Thompson v. Brown, 16 172; Emerson v. Thompson, 16 429; Ex parte Richmond, (2 P.) 19 567; Thayer v. Hollis, (3 Met.) 44 369; Lamson v. Schutt, (4 A.) 86 359; Jen- ney v. Wilcox, (9 A.) 91 245; Bradford v. Forbes, (9 A.) 91 365; Bacon o. Pomeroy, 104 577. 62. But it has been held that a payment by an executor would take a demand out of the general statute of limitations. Emerson ». Thompson, 16 429; Foster v. Starkey, (12 C.) 66 324; Fisher v. Metcalf, (7 A.) 89 209. 63. So of an acknowledgment or new promise. Baxter ». Penniman, 8 133; Emerson «. Thompson, 16 429. 64. A surety on the executor's or adminis- trator's bond, sued upon a judgment against his principal, may defend upon the ground that the special statute had run against the principal. Dawes v. Shed, 15 6; Kobinson v. Hodge, 117 222. 65. Where an administrator had admitted claims before they were barred, and had agreed with the creditors to bring a suit for their benefit, to recover back a gift causa mortis, he may bring such a suit after the expiration of the two years. Chase v. Redding, (13 G.) 79 418. 66. The two years' limitation is not suspended by the institution of proceedings in insolvency against the estate. Aiken v. Morse, 104 277; Blanchard v. Allen, 116 447. [See, also, post, V, (2).] 67. And the statutory lapse of two years before filing the claim, will prevent a debt from being proved in the insolvency proceedings, or in proceedings for a license to sell real property. Aiken v. Morse, 104 277. LIMITATION OF ACTION, III, (1), (2), (3). 963 68. Under the R. S., it was held that a divi- dend in insolvency proceedings would take a claim out of the statute. Bancroft «. Andrews, (6 C.) 60 493. 69. For rulings under St. 1784, Ch. 2, as to the statutory bar in insolvency proceedings upon a decedent's estate, see "Wildridge v. Patterson, 15 148; Johnson v. Libby, 15 140; Mansfield v. Patterson, 15 491; Thayer?). Hollis, (3 Met.) 44 369. (2.) Statutory exceptions. 70. The provisions of G. S., Ch. 97, § 8; St. 1879, Ch. 71, Ch. 243; P. S., Ch. 136, § 13, relating to a creditor, whose right of action does not accrue within the two years, cover every such claim, which appears at the time of the application to "justly due," even if it was neither debitum nor sokendum within the two years. Hammond t. Granger, 128 273. 71. Where A and B, trustees under a will, gave a bond, with C as surety, and three years after C's death, the trustees were removed, and D was appointed in their stead, it was held that the claim against the estate of C was allowable, under that provision. Hammond v. Granger, 128 272. 72. Where nothing has become due under a contract, and the existence of any demand or debt depends upon a contingency, it is not a case where the probate court can determine that any debt is "justly due," or whether a debt will arise in the future; and so the claim is not within the statute. Ames v. Ames, 128 277. 73. A promissory note, maturing more than two years after the executor's bond is given, is within the provision. Pratt v. Lamson, 128 528. 74. Upon an application under the statute, the duty of the probate court does not involve an inquiry into the amount of assets, then in the hands of the executor or administrator. Hammond v. Granger, 131 351. 75. See, further, as to the application and effect of this statute, dicta in Bacon». Pomeroy, 104 577; Tarbell v. Parker, 106 347; Grow v. Dobbins, 124 560, explained in Ames v. Ames, 128 277; also, Grow v. Dobbins, 128 271. 76. The provision of R. S., Ch. 66, § 4; G. S., Ch. 97, § 6; P. S., Ch. 136, 8 11, allow- ing an action or a proceeding in the probate court, on account of new assets received by the executor or administrator, avoids the limitation with respect to those assets, in favor of claims not proved, as well as those proved, within the statutory time. Holland v. Cruft, (20 P.) 37 321. 77. The administrator of an insolvent estate may maintain a bill in equity, filed within two years after giving bond to recover property conveyed fraudulently by the intestate, for the benefit of creditors barred by the special limita- tion; and such property, when recovered, will constitute new assets in his hands, within this statute. Welsh v. Welsh, 105 229. See, also, Chase v. Redding, (13 G.) 79 418; Chenery «. Webster, (8 A.) 90 76; Aiken v. Morse, 104 277. 78. Where the interest of the deceased in either real or personal property is sold, the re- ceipt by the executor or administrator of the proceeds of the sale, does not constitute a re- ceipt of new assets within this statute. Sturtevant «. Sturtevant, (4 A.) 86 122; Chenery t>. Webster, (8 A.) 90 76; Alden v. Stebbins, 99 616. 79. Nor does the receipt of the rents and profits to the time of the sale. Alden v. Stebbins, 99 616. 80. Nor does the receipt of property in settle- ment of a suit against a surety on his prede- cessor's bond. Veazie v. Marrett, (6 A.) 88 372. 81. Nor does the collection of a judgment in a suit pending at the time of the decedent's death. Bradford ■». Forbes, (9 A.) 91 365. 82. Nor does the receipt of royalties from patent rights included in the inventory. Robinson v. Hodge, 117 222. (3.) Equitable relief after two years. 83. St. 1861, Ch. 174, § 2; P. S., Ch. 136, § 10, does not cover a claim for contribution, where, pending a joint action against several defendants, one of them died, and judgment was recovered against the survivors, more than two years after letters of administration had been taken out upon the estate of the deceased, which they paid. Spelman v. Talbot, 123 489. 84. In such a case ; as they had no claim until after the special limitation had run, they were never in a position to assert their claim, until the administrators were relieved of all liability to them; and the statute does not apply to a claim of that character. Spelman v. Talbot, 123 489. See, also, Wood «. Leland, (1 Met.) 42 387; Holden v. Fletcher, (6 C.) 60 235; Lovell v. Nelson, (11 A.) 93 101; Bacon v. Pomeroy, 104 577. 85. The equitable relief cannot be granted upon a debt barred by the special limitation, on the ground that the creditor is an alien and a nonresident, who did not know of the debtor's decease, until more than two years after the ad- ministrator had given bond. Sykes 1>. Meacham, 103 285. 86. Qu., whether the words " culpable ne- glect " in the statute, mean anything more than gross neglect, or failure to make reasonable inquiry. Sykes v. Meacham, 103 285. 87. Where the creditor resides in another county, he cannot be relieved of an imputation of culpable neglect, without an averment that QQi LIMITATION OF ACTION, in, (3), (4), (5); IV, (1). he did not seasonably know of the decedent's death. Richards v. Child, 98 284. See, also, Marlett v. Jackman, (3 A.) 85 287. 88. Ignorance of the special limitation does not r.lieve the creditor from the imputation of culpable neglect. Jenney v. "Wilcox, (9 A.) 91 245. See, also, Waltham Bk v. Wright, (8 A.) 90 121; Wells v. Child, (12 A.) 94 333. 89. Nor do promises of the executor to pay, when he could sell real property, and an assurance that no suit was necessary. Wells e. Ch Id, (12 A.) 94 333. See, also, Brooks ». Bayner, 127 268. 90. The statute of 1861 did not apply to a claim barred when it was enacted. Garfield «. Bemis, (2 A.) 84 446, 91. One whose claim is barred by the special limitation, and who has not filed a bill under the statute of 1861, cannot be heard as a creditor in a matter touching the settlement of the estate. Allen v. Trustees of Ashley School Fund, 102 262. (4.) Laud sold Ity an executor or admin- istrator, [As to the effect of lapse of time upon the appli- cation for a license to sell, see Executor and Administrator, IV, (3).] 92. Under R. S., Ch. 71, § 37 (see now, G. S., Ch. 102, § 4tf; P. S., Ch. 142, § 21), an action by heirs or devisees, to recover real property sold by the executor or administrator, is barred by five years possession of the purchaser, and he is not required to show the validity of the Holmes v. Beal, (9 C.) 63 223 93. For rulings under the former statute, St. 1817, Ch. 190, § 2, see Shearman v. Akins, (4 P.) 21 283; Holyoke v. Haskins, (5 P.) 22 20; Jewett «. Jewett, (10 G.) 76 31. (5.) Action by creditor against lieir, etc. [See, also, Heirs, etc., II.] 94. Under R. S., Ch. 70, § 13, a joint maker of a note, on paying the same, may maintain an action against the heirs of the other maker, within one year after the payment, although it was made after the settlement of the latter's estate by his administrator, and after the expi- ration of the time limited for the the com- mencement of an action against the latter. Hayward «. Hapgood, (4 G.) 70 437. See, also, Bacon v. Pomeroy, 104 577; Tarbell v. Parker, 106 347; Grow v. Dobbins, 124 560; Grow v. Dobbins, 128 271; Ames v. Ames, 128 277. 95. It was held, under St. 1788, Ch. 66, §§ 4, 5, that the declaration must aver, not only that administration was taken out, and that the demand was not due, and payment thereof could not be enforced, within four years after administration, but that the action was brought within one year after tne demand was payable. Hall v. Bumstead, (20 P.) 37 2. 96. A right of action, against the trustee under a will and the sureties on his bond, arises upon a demand of the trust fund by his succes- sessor, and a suit in equity against the devisees and legatees of the sureties, brought more than a year thereafter, cannot be maintained; and the bar is not removed by a new demand within the year, ' although the successor has been re-appointed. McKim v. Doane, 137 195. iv. what tlmes abb limited in other Cases. (1.) Attested note; bank bill. 97. The statute limiting to twenty years an action upon an attested note, applies only to an instrument which is, in law, a promissory note, apart from the attestation. Sloan i>. McCarty, 134 245. 98. For rulings that particular instruments are within the statute, see Comm. Ins. Co. v. Whitney, (1 Met.) 42 21; Daggett®. Daggett, 124 149; Almy ». Winslow, 126 342. 99. An attested indorsement upon a promis- sory note, acknowledging it to be due, and signed by the maker, is not within the statute. Gray ». Bowden, (23 P.) 40 282. 100. An attested instrument in the form of a noie, which contains something more than a promise to pay money, and wherein the prom- ise to pay the money is not absolute, but sub- ject to a contingency, is within the limitation of six years. Sloan v. McCarty, 134 245. [See, further, as to the requisites of a promissory note, Bill, of Exchange, etc., I, (1); I, (2); I, (3).] 101. Where the signature of the witness is- between the body of the note and the date, it applies to the whole note, if shown by oral testimony to have been made for that purpose, and after the note was completed. Warren ». Chapman, 115 584. 102. It is not material that any words of at- testation should accompany the signature of the witness. Faulkner v. Jones, 16 290. 103. The attestation must have been made in the presence of the maker. Drury v. Vannevar, (1 C.) 55 276. See, also, Smith v. Dunham, (8 P.) 25 246. 104. It need not have been contemporaneous with the making of the note, if there was a contemporaneous agreement that the note should be witnessed. Swazey «. Allen, 115 594. 105. The question whether the attestation was made, under the circumstances requisite to- its sufficiency, is for the jury, and the burden LIMITATION OF ACTION, IV, (1), (2). 965 of proof, respecting the same, is upon the plaintiff. Drury t. Vannevar, (1 C.) 55 276; Swazey v. Allen, 115 594; Tompson v. Fisher, . 123 559. 106. If, after the signature of one person has been attested, another person signs the note as maker, it is not an attested note as to the latter. "Walker v. Warfleld, (6 Met.) 47 466. 107. It is not essential that the note should he negotiable. Sibley *. Phelps, (6 C.) 60 173. 108 An infant's note is within the statute. Earleo. Eeed, (10 Met.) 51 387. 109. Where two instruments are executed, one a promissory note in the ordinary form, the other a promissory note by construction of law, and the latter only is attested, it is within the twenty years limitation, although the former is barred in six years. Grinnell v. Baxter, (17 P.) 34 386. 110. The attesting witness must be one com- petent, at the time of the attestation, to testify. Jenkins i>. Dawes, 115 599. See, also, Jourdain v. Sherman, (6 C.) 60 139. 111. An indorsement of a witnessed negoti- able note, made more than six years after it is due, does not discharge the maker, but changes its character to an unattested note. Frye v. Barker, (4 P.) 21 382. 112. "Where an attested note, although nego- tiable, is indorsed over to a third person, the latter may maintain an action upon it, in the name of the payee, or of his execu'.or or admin- istrator, with his express or implied consent, and thereby have the benefit of the 20 years' limitation. And qu., whether the latter can refuse his assent. Mosher v. Allen, 6 451; Hodges v. Holland, (19 P.) 36 43; Sigourney *. Severy, (4 C.) 58 176; Eockwood v. Brown, (1 G.) 67 261. See, however, Village Bank v. Arnold, (4 Met.) 45 587. 113. But where the attesting witness thus be- came the holder, it was held that in an action by him, in the payee's name, he could not tes- tify to the attestation, or save the limitation by evidence i f his own and the maker's signature. Jourdain v. Sherman, (6 C.) 60 139. 114. So, semble, in case of a transfer by an assignee in bankruptcy or insolvency. Drury v. Vannevar, (5 C.) 59 442; Pitts v. Holmes, (10 C.) 64 92. 115. But an action in the name of the in- dorsee is barred in six years. Houghton v. Mann, (13 Met.) 54 128. 116. So where an attested note was payable to the maker's order, and indorsed by him to the plaintiff, but the indorsement was not attested. Kinsman v. "Wright, (4 Met.) 45 219. 117. "Where an attested note was payable to a copartnership, and by the copartnership in- dorsed to a member thereof, it was held that an action by his executor was not brought by the executor of the payee within the statute. Russell «. Swan, 16 314. 118. A part payment upon an attested note to the payee, extends the time in his favor twenty years from the payment. Gilbert e. Collins, 124 174. 119. The interest follows the principal, and is not barred by the general limitation. Ferry v. Ferry, (2 L.) 56 92. 120. The mere fact that a receipt for a prom- issory note shows that it has run more than six years, where there is no proof whether it was or was not attested, does not raise a legal pre- sumption that it is barred by the statute. Thomas fl.Waterman, (7 Met.) 48 227. As to a bank bill, see G. S., Ch. 155, § 4; P. S., Ch. 197, § 6; and before the statute, Hinsdale v. Lamed, 16 65. (2.) Real action; specialty; judgment. 121. Where the ancestor of the demandant was seized of the premises, under a deed made and recorded in 1829; and in 1837 he conveyed the premises to a school district, to be used as a school house lot, and for no other purposes, and from 1837 to 1882 the school district used it for that purpose; and in 1882 the school house was removed, and the land conveyed by the district to the tenant, it was held that the statute of limitations barred a wr.t of entry. Barker v. Barrows, 138 578. 122. A writ of entry to foreclose a mortgage is not barred, unless the mortgagee has been disseized for twenty years by the mortgagor, or some one claiming under him. Bacon v. Mclntire, (8 Met.) 49 87. 123. An action for rent reserved by deed is not barred in less than twenty years. Buffum «. Deane, (4 G.) 70 385. 124. So of an action for covenant broken. Clark v. Swift, (3 Met.) 44 390. 125. So of an action upon a bond, having a parol agreement varying it, indorsed upon it, and a subsequent sealed agreement, executed by both parties, extending the time of payment, and otherwise acknowledging it to be in full force. Loring «. "Whittemore, (13 G.) 79 228. 126. So of an action upon a deputy sheriff's official bond to his principal, although the breach assigned is an omission to render an account of fees, etc. Austin v. Moore, (7 Met.) 48 116. 127. So of a bond to perform an award. Wood i). "Willis, 110 454. [As to a mortgage given to secure a note", .see anU, I, H). As to ii bail bond, see G. S., Ch 125, §10; P. 8., Ch. 163, § 10; and Bail in an Action, I As to an action upon an executor's bond, see ante. III, (1); and Executor and Administrator, II, (4).] 128. A judgment of a justice of the peace of another state, is not a judgment of a court of record within the statute, and an action there- upon is barred in six years, although by the laws of that state, an execution might still be issued thereupon Mowry i>. Cheesman, (6 G.) 72 515. 966 LIMITATION OF ACTION, IV, (2), (3); V, (1). 129. The polios court of Lowell is a court of record, within the statute, and an action upon its judgment is not barred in six years. Bannegan v. Murphy, (13 Met.) 54 «ol. 130. For rulings as to the application to a judgment of a justice of the peace within the State, of St. 1786, Ch. 52; R. S., Ch. 120, § 1, as explained by St. 1839, Ch. 73; and the effect of the latter statu e upon a justice's judgment, rendered before May 1, 1836, see Smith ii. Morrison, (22 P.) 39 430; Seymour *. Deming, (9 C.) 63 527. l.As to the existing statutory presumption of pay- ment of a judgment, see Judgment, TV, (2).] (3.) Simple contract; tort; penal statute. 131. The limitation of six years applies to an action by a surety upon a bond, to recover against his principal payments made by him. Penniman v. Vinton, 4 276. 132. A note, which had been due more than six years at the time of the maker's death, is barred by the statute, although the holder is the administrator of the estate; and it is properly re- jected by the probate court. Grinnell v. Baxter, (17 P.) 34 383. 133. An action against a town for a bounty voted to the plaintiff, in consideration of his enlisting in the United States military service, is barred in six years. Sturtsvant v. Pembroke, 130 373. 134. An action for assault and false imprison- ment, brought against a sheriff for the act of his deputy, is barred in two years, under R. S., Ch. 1^0, § 2; G. S., Ch. 155, § 2; P. S., Ch. 197, § 3, notwithstanding the limitation of four years, for an action against a sheriff for the misconduct of his deputy. Sibley v. Estabrook, (4 G.) 70 295. 135. The statute authorizing a third person to recover treble the money lost by gaming, is a penal statute, within G. S., Ch. 155, § 20; P. S., Ch. 197, § 4; and an action by such a per- son is barred in one year. Cole v. Groves, 134 471. 136. The action by the loser must be brought within a year. Plummer v. Gray, (8 G.) 74 243. 137. So must the action against the owner or occupant of the building. Low v. Blanchard, 116 272. 138. The limitation of an action for a penalty or forfeiture, does not apply to an indictment against a railroad company, for negligently causing the death of a passenger. Comm. i). Boston & W. Railroad, (11 C.) 65 512. 139. Under the existing statute, such an in- dictment is limited to six years. Comm. v. East Boston Perry, (13 A.) 95 589. 140. An action by one tenant in common against another, to recover treble damages for "waste, is not barred in a year. Adams v. Palmer, (6 G.) 72 338. See, also, Goodridge v. Rogers, 39 495. P.) 141. No statute of limitation bars a mother's right to complain against the father of her bastard child. Wheelwright v. Greer, (10 A.) 92 389. 142. An action on a statute, prescribing a penalty for erecting a wooden building within a city, is barred in a year. BarnicoatD. Foiling, (3 G.) 69 134. 143 An action against the finder of a stray beast for the value thereof, as a forfeiture for failure lo proceed according to the statute, is barred in a year. "Wilson v. McLaughlin, 107 587. [ As to the time limited to apply for a jury to assess damages in a highway case, see Highway, IV, (2).] V. Running of the Limitation. (1.) General rules as to beginning. [See, also, post, VF. A a to when the statute begins to run in favor of a trustee against the cestui que trust, see ante, I, (2).] 144. The statute of limitations begins to run, at law and in equi;y, where it is not suspended by absence, disability, or other sufficient cause, whenever the party is entitled to bring an action to collect his claim, or otherwise enforce his right; in other words, when his cause of action is complete. Newman v. Kettelle, (13 P.) 30 418; Houg'iton ». Field, (2 C.) 56 141; Eliot «. Lawton, (7 A.) 89 274; Finn «. Western Railroad, 102 283; Hall v. Felton, lOS 516. 145. Thus a surety's cause of action against a fellow surety or his principal arises, not when the debt was due, but when he paid it. Wood e. Leland, (1 Met.) 42 387; Tillotson ». Rose, (11 Met.) 52 299; Hunt u. Taylor, 108 508; Thayer v. Dan.els, HO 345. 146. So where the plaintiff was indemnified by, or paid at the request of, the defendant. Hall v. Thayer, (12 Met.) 53 130; "Brown v. Tyler, (8 G.) 74 135; Perkins v. Liltlefield, (5 A.) 87 370. 147. In an action for money had and received, where it was paid under a mistake of fact or otherwise, under such circumstances that the defendant ought, in equ'ty and good conscience, to have repaid it immediately to the plaintiff, the plaintiff's cause of action arises, and the statute begins to run, immediately upon the receipt of the money, although the plaintiff was ignorant of the facts. Sturgis v. Preston, 134 372. [See, also. Notice, I.] 148. It was held, however, that in an action by a bank against a depositor, to recover an overdraft, the statute began to run from the striking of the monthly balance. Union Bk. v. Knapp, (3 P.) 20 96. 149. And that where the administrator of an insolvent estate paid a creditor in full, the statute commenced to run against his action to LIMITATION OF ACTION, V, (1), (2). 967 recover back, upon the passing of the decree of insolvency. Walker v. Bradley, (3 P.) 20 261. 150. But where the defendant is rightfully in possession of money or property, making no claim to it as his own, but ready to pay or deliver it over to the rightful owner, no right of action arises, and the statute does not begin to run, until after a demand upon him by the party entitled, and his refusal to pay it. Sturgis v. Preston, 134 £72. See, also, Brewster®. Hobart, (15 P.) 32 302; Emmons «. Hayward, (6 C.) 60 501; and Notice, I. 151. So where the promise is to deliver goods or pay money on demand, the statute begins to run from the demand. Little v. Blunt, (9 P.) 26 488; Cod- man v. Rogers, (10 P.) 27 112; Emmons v. Hayward, (6 C.) 60 501. 152. So where there is a failure of considera- tion, the statute begins to run upon demand of repayment. Eames o. Savage, 14 425. 153. So where the promisor received land as collateral security for a debt, which he promised to reconvey upon demand and payment of the debt. Hall v. Pelton, 105 516. 154. In an action for money paid to the use of the defendant, where the plaintiff, at the de- fendant's request, assigned a mortgage to a bank as security for the defendant's debt, and the bank foreclosed, and afterwards sold the property, and applied the proceeds to the debt; it was held that the statute began to run upon the sale and conversion into money. Brown s. Tyler, (8 a.) 74 135. 155. In an action by a tenant in common against his cotenant, for the proceeds of trees cut and sold, the statute begins to run, not from the sale, but from the payment; and if a note is taken, upon which the purchaser makes payments, the statute begins to run upon each payment when it is made. Miller v. Miller, (7 P.) 24 133. 156. An action for breach of the implied warranty of title on the sale of a chattel, accrues at the time of the sale, and the statute begins then to run. Perkins v. Whelan, 116 542. 157. So upon a covenant in a deed against in- cumbrances. Harrington v. Murphy, 109 299. [See, also, Covenant, II, (4).] 158. An action against a carrier, for goods destroyed while in transportation, begins to run upon their destruction. Finn v. Western Railroad, 102 283. _ 159. An action against a person who con- tinues a nuisance, after request and refusal to abate it, is not barred, although the nuisance was created more than six years before the action was brought. Prentiss v. Wood, 132 486. See, also, Hodges «. Hodges, (5 Met.) 46 «U5. 160. The statute does not begin to run upon a deposit note of a mutual insurance company payable "when required," until an assessment is levied thereupon. Bigelow v. Libby, 117 359. See, also, Long Pond Ins. Co. v, Houghton, (6 G.) 72 77; Appleton Ins. Co. v. Jesser, (5 A.) 87 446. 161. Nor against an attorney's claim for ser- vices in a suit, under a general employment, until the entry of judgment in the suit. . Eliot v. Lawion, (7 A.) 89 274. 162. So where work is done under an entire contract, the statute begins to run from the last item. Hall «. Wood, (9 G.) 75 60. 163. But upon an account, consisting of sev- eral promissory notes, although at the foot of it there is an acknowledgment, signed by the defendant, that the balance is due, made within six years, each note is a separate cause of action, upon which the statute begins to run when it is due. Foster v. Shaw, (2 G.) 68 148. See, also, Baxter v. Penniman, 8 133. 164. The right of action against an officer for taking insufficient bail accrues, and the statute begins to run upon return of the execution. Rice v. Hosmer, 12 127; Mather v. Green, 17 60; West c Rice, (9 Met.) 50 564. 165. For making an insufficient return, by reason of which the plaintiff lost his attach- ment, the statute begins to run from the return of the writ into the clerk's office. Miller v. Adams, 16 456. 166. For not paying over money collected upon execution, it runs from a demand. Weston e. Ames, (10 Met.) 51 244. 167. For the proceeds of a sale under execu- tion, held by the officer upon a second attach- ment, which has failed, it runs f om notice to him of the dissolution of the second attach- ment. King v. Rice, (12 C.) 66 161. 168. Where the officer receives a note of the execution debtor, in satisfaction, payable to him, the statute begins to run, against the cred- itor's action to recover the proceeds from the officer, upon a demand. Childs «. Jordan, 106 321. 169. So the statute runs in favor of an officer, holding the proceeds of the sale of a bankrupt's goods, attached within four months of the bankruptcy proceedings, as against the assignee in bankruptcy, from the time of demand thereof by the latter. French v. Merrill, 132 525. 170. The statute does not begin to run against a reversioner or remainderman, until the death of the tenant for life, although the latter has been disseized many years. Miller v. Ewing, (6 C.) 60 34; Jewett v. Jewett, (10 G.) 76 31. See, also, Wallingford v. Hearl, 15 471. (2.) General rules as to ending; mode of computation. 171. As a general rule, an action is deemed to be commenced wben the writ is made, of which 968 LIMITATION OF ACTION, V, (2), (3). time the date of the writ is prima facie evidence; and this, although service is not made, till after the expiration of the statutory period of limi- tation. Gardner v. Webber, (17 P.) 34 407, Bunker v. Shed, (8 Met.) 49 150. [See, also, Action, III.] 172. The actual time of suing out the writ may be shown by oral testimony. Parkman ». Crosby, (16 P.) 33 297. 173. Filing a claim with ths commissioners of a deceased insolvent's estate, is a sufficient commencement of an action against the execu- tor or administrator, within the special statutory limitation applicable to such actions. Guild ». Hale, 15 455; Freeman v. Ward, (16 P.) 33 201; Hunt v. Spauld- ing, (18 P.) 35 531; Aiken i>. Morse, 104 277. See, also, Blanchard v. Allen, 116 447. 174. The pendency of insolvency proceedings- does not affect the running of the statute against an action. Collester v. Hailey, (6 G.) 72 517; Richardson v. Thomas, (13 G.) 79 381. 175. So as to proceedings in bankruptcy. Doe c. Erwin, 134 90. 176. But the statute does not prevent a credi- tor from proving his claim in the insolvency proceedings, if it was not barred by the statute, at the time of the first publication of the notice. Minot v. Thacher, (7 Met.) 48 348; Willardfl. Clarke, (7 Met.) 48 435; Col- lester ®. Hailey, (6 G.) 72 517; Stoddard v. Doane, (7 G.) 73 387; Richardson v. Thomas, (13 G.) 79 381. [See, also, Insolvent, IV, (1).] .77. Under St. 1793, Ch. 75, filing a claim in set off was equivalent to the commencement of an action by the defendant, to save the statute; and if the plaintiff discontinued, the defendant might commence an action within 3 months afterwards, although the six years had then ex- pired. Hunt v. Spaulding, (18 P.) 35 521. As to set off under the existing statute, see G. S., Ch. 155, § .18; P. S., Ch. 197, § 20. 178. Under R. S., Ch. 120, § 11; G. S., Ch. 155, § 11; P. S., Ch. 197, § 13 where an action, seasonably commenced, is dismissed by reason of the clerk's omission to enter it seasonably upon the docket, it is defeated for "matter of form," and a new action may be commenced within a year, although the period of limitation has then run. Allen v. Sawtelle, (7 G.) 73 165. 179. So where a trustee process is abated or dismissed, because it is brought in the wrong county. Woods «/ Houghton, (1 G.) 67 580. 180. Aliter, where the plaintiff becomes non- suit by leave of the court, upon a plea of dis- charge in insolvency. Swan v. Littlefield, (6 C.) 60 417. Or where the action is entered "neither party," for failure of the plaintiff to prosecute. Cumming v. Jacobs, 130 419. 181. For the general principles governing the construction of this statute, see Cumming v. Jacobs, 130 419. 182. An action is "duly commenced," within this statute, where the writ is duly returnable according to law, and contains a declaration appropriate to the cause of action. Woods v. Houghton, (1 G.) 67 580. 183. So where the writ failed of service by " an unavoidable accident," to wit, the removal of the de endant from the county of his resi- dence to another county, without the plaintiff's knowledge. Bullock ». Dean, (12 Met.) 53 15. 184. So held under St. 1786, Ch. 52, § 1, whire, after judgment against an administrator, and pending a scire facias alleging waste, the letters of administration were annuded, and new letters issued. Coffin ii. Cottle, (16 P.) 33 383. 185. St. 1793, Ch. 71, § 2, did not apply to an action ex delicto. Cook v. Darling, (2 P.) 19 605. 186. In computing the two years' special limitation of an action against an executor or administrator, the day upon which the bond is given is excluded. Paul e. Stone, 112 27. See, also, Bigelow v. Willson, (1 P.) 18 485. 187. But in computing the general limita- tion, the first day on which the plaintiff might have brought his action is included; so that a demand note dated Nov. 1, 1811, is barred on Nov. 1, 1817. Presbrey v. Williams, 15 193. See, also, Little v. Blunt, (9 P.) 26 488; Newman v. Kettelle, (13 P.) 30 418. (3.) mutual and open account current. 188. An account for goods sold and delivered, upon which the purchaser has from time to time made payments, is not a mutual and open account current within the statute, and it can- not be made such an account by the parties' oral agreement. Parker «. Schwartz, 136 30, disap- proving dicta in Penniman v. Rotch, (3 Met.) 44 216. See, also, Gold a. Whitcomb,. (14 P.) 31 188. 189. In order to create a mutual and open account current, within the statute, each party must have had an acconnt against the other, upon which he had a right of action, or of set off. Parker v. Schwartz, 136 30. See, also, Cogswell v. Dolliver, 2 217; Union Bk. v. Knapp, (3 P.) 20 96; Wh pple «. Blackington, 97 476; Belchertown «. Bridgman, 118 486; SafEord B.Barney, 121 300. 190. Items of money may be proper items in such an account, if they are not strictly pay- ments on the other's account. Parker v. Schwartz, 136 30. See, also, Dickinson v. Williams, (11 C.) 65 258. LIMITATION OF ACTION, V, (3), (4), (5). 191. Where the plaintiff declares only on the debit side of the account, if the defendant does not file his account in offset, the plaintiff may prove it, and may show an item on either side within six years. Penniman v. Rotch, (3 Met.) 44 216. 192. It is immaterial whether a balance has or has not been struck. Penniman v. Rotch, (3 Met.) 44 216; Safford v. Barney, 121 300. 193. Where the parties, for convenience of bookkeeping, enter in the account, with other dealings, matters which are not the subject of an account, such as accommodation bills, such transactions do not affect the running of the statute as to the items of the account proper. Stickney v. Eaton, (4 A.) 86 108. 194. But where such a matter, in this case a breach of an agreement, which occurred more than six years previously, was entered in an account, the last item of which was within six years, and the defendant did not object that it was not a proper item of an account, the plain- tiff was allowed to recover it with the others. James v. Clapp, 116 358. 195. The statute does not apply to an account stated, although the balance is carried forward to a new account. Chacea. Trafford, 116 539; Belcher- town v. Bridgman, 118 486. See, also, Union Bk. v. Knapp, (3 P.) 20 96; Bass ■b. Bass, (8 P.) 25 187. 196. Nor to a cass where the relation is one of trust rather than of debtor and creditor, as where the question arises between a town treasurer and the town. Belchertown v. Bridgman, 1 18 486. 197. For rulings under St. 1786, Ch. 52, § 1, which excepted " such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants," see Bass v. Bass, (6 P.) 23 362; Bass v. Bass, (8 P.) 25 187; Codmantt. Rogers, (10 P.) 27 112; Hancock ». Cook, (18 P.) 35 30. 198. Before parties were made competent witnesses, the plaintiff could not prove an item on the credit side of the account, by his book and suppletory oath, to avoid the statute. Hancock ». Cook, (18 P.) 35 30; Pen- niman v. Rotch, (3 Met.) 44 216. (4.) Fraudulent concealment. 199. There is no fraudulent concealment, within the meaning of the* statute, if the other party possesses means of acquiring full infor- mation of the facts, and nothing is done to pre- vent him from doing so, and there is no fidu- ciary relation between the parties, although the transaction may amount to a constructive fraud. Farnam v. Brooks, (9 P.) 26 212; Nudd v. Hamblin, (8 A.) 90 130. 200. But this principle does not apply to a case where an officer of a corporation concealed from the other officers his own transactions, in dealing with the corporate funds. Atlantic Nat. Bk. v. Harris, 118 147. See, also, First Mass. Turnpike v. Field, 3 201. 201. The concealment of property by an in- solvent debtor from his assignee, and the con- cealment by him from a creditor, of facts which would avoid his discharge, is not a concealment of the creditor's cause of action. Rice «. Burt, (4 C.) 58 208. 202. If a false representation as to the con- tents of a public record will lay the foundation of an ac ion, it will not prove a subsequent con- cealment of the cause of action, within P. S., Ch. 197, § 14. Walker v. Soule, 138 570. (5.) Acknowledgment and new promise. [See, also, Bankkuptcy, II, (7) ; Insolvent, VIII, 203. It is not enough to prove an admission of the debt; an acknowledgment does not re- new or revive the debt; the question is whether there has been a new promise within six years, of which the acknowledgment is evidence, more or less controlling. Krebs v. Olmstead, 137 504. See, also, Fiske«. Needham, 11 452; Bangs v. Hall, (2 P.) 19 368; Gardner v. Tudor, (8 P.) 25 206; Gold e. Whit comb, (14 P.) 31 188; Bailey v. Crane, (21 P.) 38 323; Penniman e. Rotch, (3 Met.) 44 216: Gibson v. Grosvenor, (4 G.) 70 606; Roscoe i>. Hale, (7 G.) 73 274; Rhoades v. Allen, (10 G.) 76 35. 204. A letter written by the debtor, in answer to one by the creditor, requesting a note for the debt, saying that he was unable to give it, and adding that he hoped in the course of a few years to be able to pay the debt, does not take the debt out of the statute. Krebs v. Olmstead, 137 504. 205. There must be an unqualified acknowl- edgment, from which a promise to pay can fairly be implied, either an express promise, or a conditional promise, the condition of which has been performed. Weston if. Hodgkins, 136 326. 206. An offer to compromise, or to pay part for the whole, will not take the debt out of the statute. Smith v. Eastman, (3 C.) 57 355; Weston v. Hodgkins, 136 326. > 207. Nor does a promise to pay or renew, upon terms which are not accepted. Mumford t>. Freeman, (8 Met.) 49 432; Weston v. Hodgkins, 136 326. See, also, WiUiams i\ Root, 14 273; Robbins v. Otis, (IP.) 18 368; Smith v. Eastman, (3 C.) 57 355. But a substantial compliance with the terms suffices, although they are not formally ac- cepted. Webber e. Williams College, (23 P.) 40 302. 208. Nor does an admission by a joint debtor that he presumed that the debt was due: al- though such an admission might formerly have sufficed, in the case of a sole debtor. Cambridge «. Hobart, (10 P.) 27 232. Vol. 1—122 970 LIMITATION OF ACTION, V, (5), (6). 209 Nor does the execution of an indenture, in trust to pay creditors. Harvey v. Tobey, (15 P.) 32 99. 210. Nor does the insertion of the debt in the debtor's schedule in insolvency proceedings. Roscoe v. Hale, (7 G.) 73 274; Stod- dard 1). Doane, (7 G.) 73 387; Richard- son v. Thomas, (13 G.) 79 381. 211. But such an insertion, coupled with a previous letter acknowledging the debt, will suffice. Woodbridge *. Allen, (12 Met.) 53 470, 212. An accounting together is not the cre- ation of a new debt, but a statement and ac- knowledgment of an old debt, from which a promise to pay it may be implied. Buxlon v. Edwards, 134 567. 213. An offer to pay when the party is able, is evidence of a conditional promise, which will take the debt out of the statute, upon proof of his ability. "Woodbridge v. Allen, (12 Met.) 53 470; Bidwell «. Rogers, (10 A.) 92 438; Krebs v. Olmstead, 137 504. 214. A general acknowledgment of indebt- edness, and a promise to " settle," suffices; and such a promise may be applied to the entire account. Barnard v. Bartholomew, (22 P.) 39 291. 215. A mortgage executed and recorded, but not delivered, found among the papers of the mortgagor after his death, to secure a demand barred by the statute, is not sufficient as a new promise. Merriam v. Leonard, (6 C.) 60 151. 216. "Where a note, given in settlement of a demand barred by the statute, is given up to the maker, the question whether the provision, requiring a new promise to be in writing, has been complied with, depends upon the intent with which the surrender was made. Sumner v. Sumner, (1 Met.) 42 394. 217. A written promise prevents the statute from running as to actions barred in 20 years, as well as those barred in six years. Von Hemert v. Porter, (11 Met.) 52 210. 218. An account stated, not supported by evidence of some writing, signed by the party to be charged, will not prevent the running of the statute, against the previously existing liabil- ities included therein. Chace «. Trafford, 116 529. See, also, Poster v. Shaw, (2 G.) 68 148; Rundlett v. Weeber, (3 G.) 69 263. 219. No new consideration is necessary to render the new promise effectual. Little ». Blunt, (9 P.) 26 488. 220. The new promise extends the limitation, whether it was made before or after the statute had run. Little v. Blunt, (9 P.) 26 488; Miles v. Linnell, 97 298. 221. A new promise by the guardian of a spendthrift, to pay the ward's debt, will take the debt out of the statute, so as to bind the ward; but the ward's new promise will not. Manson «. Felton, (13 P.) 30 208. [As to the effect of an acknowledgment, new promise, or part payment, by an executor or admin- istrator, see ante. III, (1). As to an Implied new Sromise, resulting from a decree in equity, that the ebt is due, see Phelps v. Brewer, (9 C.) 63 BSW.] 222. An agreement by a creditor to extend the right to redeem land mortgaged to him to secure his debt, and not to foreclose for a speci- fied time, does not extend the personal liability of the debtor beyond the statutory limitation. Ball v. "Wyeth, (8 A.) 90 275. 223. Before the amendment to the statute, requiring an acknowledgment or new promise to be in writing, it was held, that an oral new promise or acknowledgment sufficed to take a debt out of the statute, as follows: If made to a stranger, in the absence of the creditor. Whitney «. Bigelow, (4 P.) 21 110. If made to a former holder of a note. Little v. Blunt, (9 P.) 26 488. If made by the overseers of a town to pay the expenses of a pauper chargeable to the town. Belfast v. Leominster, (1 P.) 18 123. If made by a principal in a note, as against the surety. Frye «. Barker, (4 P.) 21 382. If made by one partner, as against all. White v. Hale, (3 P.) 20 291. When it might be inferred from acts, with- out express words. Whitney v. Bigelow, (4 P.) 21 110. Where it was a mere general acknowledg- ment of being indebted. Whitney v. Bigelow, (4 P.) 21 110. (6.) Part payment. 224. The ground, upon which a part payment is held to take a case out of the statute, is that such a payment is a voluntary admission that the debt is then due, which raises by implication a new promise to pay the balance. To have this effect, it must be such an acknowledgment, as reasonably leads to the inference that the debtor intended to renew his promise to pay. Campbell «. Baldwin, 130 199. See, also, Baxter v. Penniman, 8 133; Pond v. Williams, (1 G.) 67 630; Roscoe *>. Hale, (7 G.) 73 274; Stoddard v. Doane, (7 G.) 73 387; Richardson v. Thomas, (13 G.) 79 381; Taylors. Poster, 132 30. 225. The application upon the debt of the proceeds of a foreclosure sale is not a part pay- ment, within the statute; as the application was not under the debtor's control, and involved no action of his mind. Campbell v. Baldwin, 130 199. 226. Where the plaintiff held the defendant's four notes, due at' different dates, and the defendant assigned to him choses in action as collateral security, the proceeds to be applied generally upon the defendant'* indebtedness; it was held that the proceeds should be applied as a partial payment upon each of the notes, so as to take all out of the statute. Taylor o. Foster, 132 30. See, also, Pond v. Williams, (1 G.) 67 630. LIMITATION OF ACTION, V, (6); VI, (1). 971 227. But unless the application is made ■within a reasonable time, the statute is not Porter ». Blood, (5 P.) 22 54. 228. Payment by a wife upon her husband's note will not affect the running of the statute, •without proof of authority from him. Butler ». Price, 110 97; Butler i>. Price, 115 578. 229. And evidence that the creditor wrote to the husband, demanding payment, and the payment by the wife was in answer thereto, is not sufficient to show her authority. Butler v. Price, 115 578. 230. So of payment by an assignee in insolv- ency. Boscoe v. Hale, (7 G.) 73 274; Stod- dard ii. Doane, (7 G.) 73 387; Richard- son v. Thomas, (13 G.) 79 381; Taylor v. Foster, 132 30. 231. An agreement that a payment had been made, where it was not in fact made, will not take a debt without the statute. Blanchard v. Blanchard, 122 558. See, also, Parker v. Schwartz, 136 30. 232. So, where after a debt from B to A had become barred by the statute, A became in- debted to B in a smaller sum, and B orally agreed that this debt should be applied to his debt to A, as far as it would go, and A sued upon an account annexed, giving B credit for the latter's debt ; it was held that, as it never had actually been so applied, there was no part payment, within the statute. Winchester v. Sibley, 132 273. See, also, Cary ». Bancroft, (14 P.) 31 315. 233. But a constructive payment was deemed sufficient, under peculiar circumstances of agency, trust, and agreement, in Upham v. Wyman, (7 A.) 89 499, 234. A negotiable note is a sufficient part payment to save the statute Ilsley v. Jewett, (2 Met.) 43 168; Sigourneys. Wetherell, (6 Met.) 47 553. 235. A part payment on Sunday will not suffice for that purpose; and if the indorsement of the payment is dated on Sunday, that, with other circumstances, will warrant a jury in find- ing that the payment was then made. Clapp s.Hale, 112 368. 236. Part payment of an attested note extends the limitation twenty years from the time thereof, in favor of the payee. Gilbert v. Collins, 124 174. 237. A partnership debt is taken out of the statute by a part payment made by one partner, although the firm had been dissolved, if he creditor had no notice of the dissolution. Sage v. Ensign, (2 A.) 84 245; Bux- ton «. Edwards, 134 567. 238. Aliter, under R. S., Ch. 120, 8 18; G. S., Ch. 155, § 14; P. S., Ch. 197, § 17, "where a payment is made by one of two joint debtors, not partners. Peirce v. Tobey, (5 Met.) 46 168; Balcom v. Richards, (6 C.) 60 360. See, also, before that provision was enacted, Hathaway «. Haskell, (9 P.) 26 42. 239. And under that provision, a payment by the principal will not affect the running of the limitation in favor of the surety. Faulkner v. Bailey, 123 588. 240. Aliter, before that provision. .Hunt v. Bridgham, (2 P.) 19 581; Sigourney v. Drury, (14 P.) 31 387. 241. The debtor's oral admission or oral agree- ment is sufficient prima facie evidence of part payment; and so is the giving of a receipt by the creditor to and its acceptance by the debtor, although it was afterwards returned. Williams v. Gridley, (9 Met.) 50 482. See, also, Blanchard a. Blanchard, 122 558. 242. The creditor's indorsement of part pay- ment has no effect upon the statute, without proof of the payment, or of some other suffi- cient concurrent act of the defendant. Whitney «. Bigelow, (4 P.) 21 110; Waterman v. Burbank, (8 Met.) 49 352; Davidson «. Delano, (11 A.) 93 523. 243. But proof of the debtor's concurrence, or that the indorsement was in his handwriting, is prima facie but not conclusive evidence, of an actual payment. Sibley e. Phelps, (6 C.) 60 172; Blanchard v. Blanchard, 122 558. 244. For a peculiar case, where the question of the sufficiency of evidence to prove a part payment, arose in an act on between the credi- tor's executor and the debtor, and depended upon proof of transactions during the creditor's life, and a conversation between the executor and the debtor, see Litchfield v. Merritt, 102 520. [4 to the effect of part payment by an executor or administrator, see ante, til, (l).l VI. Suspension op the Limitation. (1.) Absence. 245. The statute is not a bar to a debt con- tracted forty years ago, without proof that the defendant has been within the Commonwealth. Putnam «. Dike, (13 G.) 79 535. See, also, Lawrence v. Bassett, (5 A.) 87 140. 246. The one year's limitation of a scire facias against bail is not affected by the provision re- lating to absence. Gass v. Bean, (5 G) 71 397. 247. Where a justice's judgment was recov- ered against the defendant, and he soon after left the Commonwealth, and continued to reside abroad, the plaintiff was allowed to re- cover 24 years after the judgment. Seymour ?>. Deming, (9 C.) 63 527. 248. After the statute begins to run in favor of a party domiciled here, there is no deduction for absences which do not amount to a change of domicil. Whitton v. Wass, 109 40. See, also, Collester v. Hailey, (6 G.) 72 517; Lang- don «. Doud, (10 A.) 92 433; Perkins v. Davis, 109 239. 972 LIMITATION OF ACTION, VI, (1), (2), (3). 249 Even although he represented, to his creditor that he intended to change his domicil. Langdon v. Doud, (10 A.) 92 433. 250. But where a person, domiciled without the Commonwealth, becomes liable for a debt, the statute begins to run in his favor upon his open return to the Commonwealth; and it is immaterial that the creditor did not know of his return, or that he had no attachable prop- erty here. Whitton «. Wass, 109 40. See, also, Milton v Babscn, (6 A.) 88 332. 251. For rulings under St. 1786, Ch. 52, § 4, which established a different rule, see White v. Bailey, 3 271; Dwight o. Clark, 7 515; Byrne i>. Crowninshield, (1 P.) 18 263; Little v. Blunt, (9 P.) 26 488; Little v. Blunt, (16 P.) 33 359. 252. One domiciled elsewhere, who comes here occasionally, or even for a few hours daily, is " absent from and resides out of the state," within the statute. Rockwood v. Whiting, 118 337. 253. The statute runs, while a resident debtor is here, although he fled to another state, was brought back on the governor's requisition, and was sentenced to and remained within the State prison. Turner v. Shearer, (6 G.) 72 427. 254. Where the debtor resides in another state, retaining no dwelling house or boarding house here, the limitation is suspended, although he intends at some future indefinite time to return here. Sleeper ■». Paige, (15 G.) 81 349. 255. The question whether the debtor was absent, or had a domicil in another state, is for the jury. For rulings upon the competency and the sufficiency of particular matters of evidence upon that issue, see Shaw-y. McGregory, 105 96; Perkins kins». Davis, 109 239; Kennedy i>. Shea, HO 147; Ware «. McGowen, 111 526. 256. Semble, that the appointment of an ad- ministrator here is equivalent to a return. Corliss Steam E. Co. v. Schumacher, 109 416. 257. As to the application of the provisions of the R. S. on this subject, to cases where the cause of action had accrued, or the right of ac- tion was barred under the former statutes, see Battles v. Fobes, (18 P.) 35 532; Battles «. Fobes, (19 P.) 36 578; Wright v. Oakley, (5 Met.) 46 400; Willard v. Clarke, (7 Met.) 48 435; Brigham v. Bigelow, (12 Met.) 53 268; Darling v. Wells, (1 C.) 55 508. 258. The former statutes, St. 1786, Ch. 52, 8 4; R. S., Ch. 120, § 6, and G. S., Ch. 155, § 6, contained also an exception, where the person entitled to sue was absent from the United States. This exception was stricken out by St. 1880, Ch. 13. For rulings under that exception, see Vans v. Higginson, 10 29; Hall -o. Little, 14 2u3, Wilson «. Appleton, 17 180; Whitney v. Goddard, (20 P.) 37 304; Von Hemert v. Porter, (11 Met.) 52 210; Goetz v. Voelinger, 99 504. [As to the effect of a statute of limitations of an- other state, of which the party was a citizen and a resident, see ante, I, (3).l (2.) Disability. 259. The disability of infancy does not sus- pend the special limitation, as to an action against an executor or administrator. Hall v. Bumstead, (20 P.) 37 2. 260. A disability suspends the running of the limitation, only where it exists at the time when the cause of action accrues; if it occurs after- wards, the limitation continues to run. Allis v. Moore, (2 A.) 84 306. See, also, Eager ». Comm., 4 182; Dow v. Warren, 6 328; Melvin v. Locks & Canals, (16 P.) 33 161. 261. But, semble, that if the owner of land has been disseized when under no disability, the disseisor's title does not mature in twenty years, if a disability occurred to the former, before the lapse of a reasonable time to assert his rights. Currier v. Gale, (3 A.) 85 328. 262. It was held, under the R. S., that 20 years' adverse possession of land sold for non- payment of taxes, under the United States statutes, would not bar an action by a married woman, brought within ten years after the ter- mination of her coverture. Atherton*. Hitchings, (12 G.) 78 117. 263. It was held, under St. 1817, Ch 190, § 12, that a remainderman was under "legal disability " during the continuance of the life estate, and was not barred, until five years after the termination thereof, from his action to recover land sold by an executor under a license Jewett v. Jewett, (10 G.) 76 81. See, also, Miller t>. Ewing, (6 C.) 60 34, and ante, V, (1). 264. Neither lapse of time, nor the allowance by the probate court of the account of an ad- ministrator de bonis rum, while the legatee was an infant, and without notice to her, will bar an action by her for her legacy. Collins v. Collins, 140 502. (3.) Death. [As to the effect of the statute in matters relating to a decedent's estate, see, also, ante, III.] 265. Part payment, within six years and one month of the creditor's death, will save the stat- ute, in an action by the latter's executor. Blackler v. Boott, 114 24. 266. Where the debtor left the Common- wealth, and died abroad; and the action was commenced, more than two years after the grant of administration here, and, deducting the time between his departure and the grant of administration, more than six years after the cause of action accrued, it was held that it was barred. Corliss S. E. Co. «. Schumacher, 109 416. 267. The statute does not extend the time within which the executor of the creditor may sue the executor of the debtor. Hill «. Mixter, (5 A.) 87 27. 268. Semble, that where the creditor is ap- pointed administrator of the deceased debtor, LIMITATION OF ACTION, VI, (3)— LOAN, ETC., ASSO'N. 973 he is within the equity of the statute, and his taking out administration is equivalent to bringing an action. Grinnell v. Baxter, (17 P ) 34 383. 269. The claim of a creditor of a deceased in- solvent's estate, in whose favor the commission of insolvency is opened, is not barred by the statute, in consequence of the lapse of time sub- sequently to the closing of the first commission. Ostroms. Curtis, (1 (J.) 55 461. 270. Under St. 1793, Ch. 75, § 3, where six years after the dissolution of a partnership, one of the partners died; and more than six years after the dissolution, but, within two years after grant of administration, his administra- tors brought an actio. i for an accounting against the other partners, it was held, that the action was not barred. Chandler v. Chandler, (4 P.) 21 78. 271. An action, brought by an administrator of a nonresident's estate, within two years after his appointment here, is not barred by any previous lapse of time. Gallup v. Gallup, (11 Met.) 52 445. 272. Under R. S., Ch. 120, § 10, it was held, that the donee causa mortis of a negotiable note, payable to A, might bring an action thereupon in the name of A's administrator, at any time within two years after the grant of letters; since A was entitled to bring it at the last hour of his life, notwithstanding the gift causa "s. Bates «. Kempton, (7 G.) 73 382. 273. The two years after grant of administra- tion bar the action, although the creditor had no knowledge thereof. Corliss S. E. Co. v. Schumacher, 109 416. 274. This bar is irrespective of the question whether notice of the administrator's appoint- ment has been given. Corliss S. E. Co. •». Schumacher, 109 416. 275. The plaintiff in a bill in equity, seeking to avail himself of this provision, must set forth all the facts; otherwise a plea, that the action did not accrue within six years before the suit was commenced, will be good. Codman v. Rogers, (10 P.) 27 112. Liquidated damages. [See Cohteact, IV, (2); Injunction, n, (3).] Liquor. Limitation of estate. [ ; ee Deed, III; Devise and Bequest, Trust, III.] Limited partnership. [See Partnebship, VT, (1).] Ill; Limits of the prison. [See House op Correction; J ah,.] [See Intoxicating Liquors.] Lis pendens. 1. St. 1877, Ch. 229; P. S., Ch. 126, § 13, did not apply to causes then pending. Hawes v. Howland, 136 267. 2. Apart from the statute, Us pendens is notice to all the world. Wight v. Packer, 114 473. See, also, Haven v. Adams, (8 A.) 90 363; Hawes », Howland, 136 267. Literary property. [See Copyright.] Livery stable. 1. As to the constitutionality of, and a declaration under, St. 1819, Ch. 37, forbidding a livery stable keeper, etc., to give credit to an undergraduate of a college. Soper i>. Harvard College, <1 P.) 1* 177. [See now, G. S., Ch. 88, § 18; P. S , Ch. 102, § 21.] 2. St. 1810, Ch. 124, forbidding the erection, etc., of a building in Boston for a livery stable, within 170 feet of any church, applied to the altering and fitting up for a livery stable, of a building erected before the enactment of the statute. Hastings v. Aiken, (1 G.) 67 163. 3. It was not repealed by R. S., Ch. 58, § 4. Hastings e. Aiken, (1 G.) 67 163. 4. A unlicensed keeper of a livery stable can- not recover for an injury to his business, caused by the escape of gas into his premises; but he may recover for the nuisance to his real property. i Sherman v. Pall River Iron Works, (5 A'.) 87 213. Loan and fund association. I The following decisions were made under St. 1854, Ch. 454; G. S, Ch. 59. In the table prefixed to the P i , Ch. 59 of the G.S., is thus referred to ■' Goes out. No such institutions." In place of such institutions, the statute now provides for the incorporation of "Co-operative saving fund and loan associations. St 1877, Ch. 224; St. 1879, Ch. 129; bt. 1881, Ch. 271; P. S., Ch. 117-] 1. Voluntary loan fund associations were lawful before the st. of 1854. Baxter v. Mclntire, (13 G.) 79 166. [See, also, Joint Stock Association.] 2. The organization of such an association into a corporation, under that statute, did not transfer its property without an assignment. Manahan «. Varnum, (11 G.) 77 405. 974 LOAN, ETC., ASSOCIATION— LORD'S DAY, I, (1). 3. In the absence of a provision to the con- trary in the by-laws, an assignment by the trustees of the voluntary association sufficed for that purpose. Manahan v. Varnum, (11 G.) 77 405. 4 The incorporation of the association did not affect the right of the trustees of the volun- tary association, to recover upon a bond pre- viously given. Merrill v. Mclntire, (13 G.) 79 157. 5. A bond to the trustees of a voluntary association, to pay a certain sum monthly, as long as the association should exist, was not void for uncertainty, although the articles provided for the termination of the association, when its funds should attain a certain sum. Merrill v. Mclntire, (13 G.) 79 157. 6. The jurisdiction in equity, conferred by the statute, did not affect the right of a member to sue at law. Puller v Salem & D. L. & F. Ass'n, (10 G.) 76 94. 7 For rulings to the effect that bonds and mortgages, given to such associations, in ac- cordance with the articles of association and by-laws thereof, were not usurious, see Merrill v. Mclntire, (13 G.) 79 157; Delano v. Wild, (6 A.) 88 1. 8. For rulings upon provisions of the articles of association, relating to the right of a mem- ber to withdraw, and his liability to pay inter- est, dues, and fines, after his withdrawal, see Fuller v. Salem & D. L. & F. Ass'n, (10 G.) 76 94; Baxter v. Mclntire, (13 G.) 79 168; Barker v. Bigelow, (15 G.) 81 130; Delano «. "Wild, (6 A.) 88 1; Bowker «. Mill Biver L. F. Ass'n, (7 A.) 89 100; Cook v. Kent, 105 246. 9. For rulings as to the right of a member, under particular articles, to redeem his mort- gage, see Cook ti. Kent, 105 246. 10. In the absence of evidence of an intent to evade the statute, one, whose mortgage recited that he was a member of the association, was estopped from denying that fact, in an action for foreclosure. Howard Mut. L. & F. Ass'n v. Mclntyre, (3 A.) 85 571. lord's day. I. What is a Violation of the Statute. (1 .) When an act is deemed to be done on the lord's day. (2.) What acts are or are not forbidden. (3.) Work of necessity or charity. II. Effect of Violation. (1.) Upon a contract. (2.) Upon an action for a tort. III. Criminal Prosecution. [As to rulings upon the form and sufficiency of an indictment or complaint, see Indictment, VIII,, (51). As to including or excluding Sunday in a computa- tion of time, see Time. For other rulings pertaining to this subject, see Contract, III, (1) ; Intoxicat- ing Liquors; n, (4); III, (3); V; Nuisance, HI.] I. What is a Violation of the Statute. (1.) When an act is deemed to be done on the Lord's day. 1. For a full history of all the legislation on the subject of the Lord's day, applicable to the province, colony, and Commonwealth of Mas- sachusetts, until the enactment of the R. S., see Hamilton v. Boston, (14 A.) 96 475. 2. For rulings upon the provision of St. 1791, Ch. 58, fixing the time of the Lord's day from midnight on Saturday to sunset on Sunday, see Tracy*. Jenks, (15 P.) 32 465; John- son ». Day, (17 P.) 34 106. 3. For rulings relating to the duties of a tything man on the Lord's day, under the same statute, and an indictment for refusing to an- swer him, see Pearce v. Atwood, 13 324; Comm. v. Caldwell, 14 330. 4. Where a proposition for a conlract is made on Sunday, but is not accepted till the follow- ing day, the transaction is lawful ; but if it is accepted on Sunday, it is unlawful. Tuckerman v. Hinkley, (9 A.) 91 452; Dickinson v. Richmond, 97 45; Clapp a. Hale, 112 368. 5. So money paid on Sunday, and retained afterwards, discharges a debt. Johnson «. Willis, (7 G.) 73 164. 6. But a guaranty of a lease, executed and delivered on Sunday, is void, although the lease itself is not excuted till the next day. Merriam «. Stearns, (10 C.) 64 257. 7. Where an assignment was made for the benefit of creditors, with a provision for the annexation of a schedule of property thereafter, the annexation of the schedule on Sunday is not void. Clap v. Smith, (16 P.) 33 247. 8. Part payment of a debt on Sunday, will not take the debt out of the statute of limita- tions. Clapp D.Hale, 112 368. 9. The date, on a Sunday, of an indorsement of payment, receipt, or other paper, will war- rant a finding that the transaction was com- pleted on the day of the date; but the actual time of the transaction may be shown. Clapp v. Hale, 1 12 368; Sartwell v. Humphrey, 136 396. See, also, Bus- tin v. Rogers, (11 C.) 65 346; Moseley «. Hatch, 108 517. iO. But judgment will not be arrested, be- cause the note sued upon is dated on Sunday Hill ». Dunham, (7 G.) 73 543. 11. A delivery of goods or a payment of money on the Lord's day, may vest the prop- erty therein, or extinguish an existing obliga- tion, as far as the property or money has passed from one party to the other; but it will not avail for any other purpose. The courts will not assist one party to recover back the goods or money; or the other party to deny that he received it, or to assert any new rights by reason of the transaction. Clapp v. Hale, 112 368. See, also, Johnson v. Willis, (7 G.) 73 164; Ham- mond ». American Ins. Co., (10 G.) 76 LOKD'S DAY, I, (1), (2), (3). 975 306; Myers v. Meinrath, 101 866; Cranson v. Goss, 107 439; Moseley v. Hatch, 108 517. 12. Where a bargain for goods is made on the Lord's day, and they are delivered and ac- cepted on Monday, the vendor may recover the market value, but not the price agreed upon; nor is he liable upon any special warranty. Bradley v. Rea, 103 188. 13. Where goods are sold and delivered to A and B on the Lord's day, the sale having been induced by A's false representations on the preceding day, and afterwards the seller demands the price from A, and lie promises to pay it, this amounts to a subsequent sale to A, and he is liable thereupon. Winchell v. Carey, 115 560. 14. Where a deed of land is executed on Sunday, under an oral agreement for a trust, and a declaration of the trust is afterwards signed by the grantee, the latter cannot hold the land discharged of the trust. Faxon «. Folvey, 110 392. See, also, Myers v. Meinrath, 101 366; At- wood ». Fisk, lOl 363; Hall v. Cor- coran, 107 251. C2.) What acts are or are not forbidden. [For additional rulings, and other analogous cases, see Contract, III, (1).J 15. At common law, and under St. 29, Car. H, Ch. 7, § 6, judicial acts on Sunday were void; but ministerial acts in legal proceedings, either civil or criminal, were valid. Pearce v. Atwood, 13 324; Johnson v. Day, (17 P.) 34 106. 16. The execution of one's will is not work, labor, or business, within the existing statute. Bennett ». Brooks, (9 A.) 91 118. 17. The purpose of the statute is only to pre- vent the carrying on of the usual occupations of men, whereby they gain a livelihood or acquire property, and the doing of acts which usually belong to or are connected with worldly affairs, and the common transactions of business. Bennett «. Brooks, (9 A.) 91 118. See, also, Pattee v. Greely, (13 Met.) 54 284. 18. A search warrant may be served on Sunday. Wright v. Dressel, 140 147. See, also, Robinson v. Richardson, (13 G.) 79 454. 19. The driver of a mail coach, under a con- tract with the United States government, is not liable to punishment for driving on Sunday, or any of its necessary incidents; but semble, that he is so liable, if he drives about to receive or discharge passengers, or blows his horn; semble, also, that travellers in the coach are liable. Comm. «. Knox, 6 76. 20. The mere fact that some of the passen- gers in a public conveyance were lawfully travelling, will not render the running of the conveyance lawful. Day v. Highland St. Railway, 135 21. Where a boy thirteen years of age at- tempted, on Sunday, to get upon the platform of a street car while in motion, and, the horses starting suddenly, was thrown off and injured, it was held, that he was travelling within the statute, and could not recover. McDonough v. Metropolitan Railroad, 137 210. 22. A person, walking for open air and gentle exercise, is not travelling within the statute. Hamilton v. Boston, (14 A.) 96 475. . 23. So where he goes to a hotel to visit a friend. Barker «. Worcester, 139 74. 24. But one who sails in his yacht for pleasure, on Sunday, is travelling in violation of the statute. Wallace v. Merrimack River, etc., Co., 134 95. other rulings as to travelling', see post, I, (3); [For ir; (3).] (3.) Work of necessity or charity. 25. The exception in the statute as to works of necessity, does not extend merely to works which are physically or absolutely necessary, but comprehends all acts which it is morally fit and proper to do on the Sabbath. Bennett i>. Brooks, (9 A.) 91 118, citing Comm. i>. Knox, 6 76. 26. The necessity intended by the statute is not to be limited, on the one hand, to absolute physical necessity, nor, on the other hand, to include mere business convenience or advan- tage. Davis v. Somerville, 128 594. See, also, Pearce i>. Atwood, 13 324; Flagg v. Millbury, (4 C.) 58 243; Smith v. Boston & M. Railroad, 120 490. 27. In order to constitute an act of charity within the statute, the act which is done must be in itself a charitable act. The act of ascer- taining whether a charity is needful, is not the charity; in such a case the question woidd be, is it a necessary act. Buchcr v. Fitchburg Railroad, 131 156. 28. Where a travelling insurance agent, whose sister was ill in a distant state, wrote to have her meet him in a certain place; and, being absent on business until Saturday, missed a connection of trains, by which he expected to reach Boston on Saturday night, to receive her expected answer; and thereupon took passage on a freight train for Boston on Sunday; it was held that his travelling was not an act of neces- sity, nor was it an act of charity, as bis duty to his sister was made subservient to his business. Bucher v. Fitchburg Railroad, 131 156. 29. But one who travels on Sunday from one town to another, solely to visit an invalid sister, whom he believes to be ill, and one who is driving him, are both travelling from charity; although the only reason, why the former went on Sunday, was that his work prevented him from going on a week day. Cronan v. Boston, 136 384. See, 976 LORD'S DAY, I, (3); II, (1), (2). also, Doyle v. Lynn & B. Railroad, 118 195. 30. The fact that seaweed will probahly float away on the next tide, does not render the gath- ering of it a work of necessity. Comm. *. Sampson, 97 407. because « .mini! 'u. OitllipSUlL, t7J Wl. 81. Nor is hoeing a work of necessity, the crops need hoeing. Comm. ■». Josselyn, 97 411. 32. For other cases wherein it was ruled that convenience, the need of avoiding a business loss, or the like, does not render the work one of necessity, see Jones v. Andover, (10 A.) 92 18; Connolly v. Boston, 117 64; Smith v. Boston & M. Railroad, 120 490. 33. Piloting a vessel into port is a work of necessity, within the statute. Perkins*. O'Mahoney, 131 546. 34. A contract by the overseers of a town, for the relief of a sick pauper, is a work of neces- sity or charity. Aldrich v. Blackstone, 128 148. 35. Travelling on the Lord's day to attend a funeral, is not a violation of the statute; and the party is not obliged to return by the shortest route. Davis v. Somerville, 128 594. See, also, Home v. Meakin, 115 326. 36 But if he deviates from the ordinary return route, to enable a friend with him to make a social call, he is, while thus deviating, travelling in violation of the statute. Davis v. Somerville, 128 594. 37 Putting a highway in repair is a work of necessity, within the statute. Plagg e. Millbury, (4 C.) 58 243. 38. Clearing out a wheel-pit is not a work of charity, although otherwise a mill, employing many hands, will stop, and the party was doing the work gratuitously, and as a matter of kind- McGrath v. Merwin, 112 467. 39. Taking a maid servant from her mother's house to his own house by a master, that she may prepare food for the family, is a work of necessity, within the statute. Crosman ». Lynn, 121 301. 40. Travelling from one town to another, to make the acquaintance of a stranger, no work of necessity or charity being proved, is within the prohibition of the statute. Stanton v. Metropolitan Railroad, (14 A.) 96 485. 41. And the burden is upon the party, travel- , ling upon the Lord's day, to show ihat he was travelling from necessity or charity. Bosworth v. Swansey, (10 Met.) 51 363. 42. "Where a woman, wno worked in a mill, went to another town to see her children, and, one of them being sick, she returned on Sunday night to procure medicine, intending to send it to the sick child by another person, it was held that the jury were warranted in finding that she was travelling from necessity or charity. Gorman t>. Lowell, 117 65. 43. Where one is travelling to attend a spiritu- alistic camp meeting, where an admission fee is charged, it is for the jury to say whether he was travelling from necessity or charity. Feital ». Middlesex Railroad, 109 398. 44. Where an engineer of a railroad train was injured by a defect in the track, while run- ning on Sunday a train, consisting in part of stock cars, it was held that his testimony, that there was no convenience for watering and feeding stock at the place of departure, and that he did not know how they were to be fed and watered there, was not sufficient to show that he was engaged in work of necessity or charity. Read v. Boston & A. Railroad, 140 199. II. Effect of Violation. (1.) Upon a contract. [See, also, Contract, III, (l).l 45. A contract made upon the Lord's day cannot be enforced. Hulet v. Stratton, (5 C.) 59 539; Horton v. Buffinton, 105 399. [See, also, ante, I, (1).] 46. But a sale of a chattel on the Lord's day will enable the purchaser to pass a good title, to a subsequent purchaser without notice, against an attaching creditor of the first vendor. Horton v. Buffinton, 105 399. 47 And wh.re the contract is executed, neither party can repudiate it. Horton v. Buffinton, 105 399. See, also, Myers v. Meinrath, lOl 366; overruling dicta, in Ladd ». Rogers, (11 A.) 93 209. [See, also, Contract, in, (1).] 48. A bona fide holder of a promissory note, executed, b..t not dated, on the Lord's day, may recover upon it, although the original payee could not do so. Cranson v. Goss, 107 439; Stevens «. Wood, 127 123. 49. A contract made upon the Lord's day is incapable of being validated, as between the parties, by subsequent ratification, as long as it is executory. Day v. McAllister, (15 G.) 81 433; Ladd ii. Rogers, (11 A.) 93 209. (2.) Upon an action for a tort. 50. St. 1884, Ch. 37, providing that the Lord's day act shall not constitute a defence to an action for a tort, etc., does not apply where the injury was suffered before its enactment. Read ®. Boston & A. Railroad, 140 199. 51. A person travelling on the Lord's day, in violation of the statute, cannot recover in an action against a city or a town, for injuries sus- tained from a defect in the highway. LOED'S DAY, II, (2); III 977 Bosworth v. Swansey, (10 Met) 51 368; Jones v. Andover, (10 A.) 92 18; Hamilton v. Boston, (14 A.) 96 475; Connolly i>. Boston, 117 64; Gorman ». ' 'LoweU, 117 65; Crosman v. Lynn, 121 301; Davis v. Somerville, 128 594. 52. Nor could he, before St. 1877, Oh. 232; P. S., Ch., 98, § 3, recover against a common carrier for an injury received by negligence, while thus travelling. Stanton «. Metropolitan Railroad, (14 A.) 96 485; Hall v. C rcoran, 107 251; Doyle v. Lynn & Boston Railroad, 118 195"; Bucher ®. Fitchburg Railroad, 131 ■ ■ 156; McDonough c. Metropolitan Railroad, 137 210. 53 Nor can he recover against any person, for an injury received through that person's fault or negligence, while engaged in an act prohibited by the statute, if his unlawful act in any way contributed to the injury. Alitor, if his unlawful act was entirely independent of the injury, although it was a condition of the injury. Cox n. Cook, (14 A.) 96 165; Hall v. Corcoran, 107 251 ; McGrath v. Mer- win, 112 467; Lyons n. Desotelle, 124 387; White ». Lang, 128 598; Wallace i>. Merrimack, etc., Co., 134: 95. 54. But he can recover, even although en- gaged in violating the statute, for a wanton and malicious act. Wallace «. Merrimack, etc., Co., 134 95. 55. In an action by a town for cutting a hose used in extinguishing a fire on the Lord's day by running a train over the railroad track on which the hose was laid, it was held that the action might be maintained without special proof of negligence. Hyde Park «, Gay, 120 589. 56. Under the statute of 1877; P. S.. Ch. 98, § 3, a person is ' ' travelling " on a street car, who is thrown off while getting on the car, and the defendant is only entitled to the ordi- nary ruling as to contributory negligence. McDonough n. Metropolitan Railroad, 137 210. 57. The conductor of a street railway car is both laboring and travelling in violation of law where the car is run on Sunday; and, if while standing on the step of the car, he is injured by bein i struck by another car on a parallel track, his unlawful act in laboring contributed to the injury, and he cannot recover under the act of li77. Day n. Highland St. Railway, 135 113. 58. One who, on the Lord's day, delivers a chattel in pledge, to secure the hire of a horse for unlawful travel on that day, cannot recover the chattel without paying the hire. King v. Green, (6 A.) 88 139. 59. One who, while unlawfully travelling on the Lord's day, stopped at an inn and left a robe there, may recover it the next day. Cox v. Cook, (14 A.) 96 165. 60. One who hires a horse on the Lord's day, to drive for pleasure to a particular place, and Vol. 1—123 drives to another place, is liable for a conver- sion of the horse. Hall v, Corcoran, 107 251; limiting, and partly overruling, Gregg v. Wynian, (4 0.) 58 322. 61. But an action of tort will not lie, for immoderately diiving a hired horse on the Lord's day, upon the very journey for the pur- pose of which it was hired; since the action, although tort in form, is founded upon the un- lawful contract. Way v. Foster, (1 A.) 83 408, ex- plained in Hall i>. Corcoran, 107 251. 111. Criminal Prosecution. LAs to the indictment or complaint, see Indict- ment VIII, (51)0 62. As to jurisdiction under St. 1791, Ch. 58. Comm. v. Johnson, 8 87; Pearce v. Atwood, 13 324. 63. As to the construction of St. 1816, Ch. 112, § 1, now obsolete, see Comm. «. Newton, (8 P.) 25 234. 64. An indictment for keeping a shop open on the Lord's day, is sustained by proof that the defendant has kept his shop open on any Sun- day, within the time limited for the prosecution. Comm. n. Newton, (8 P.) 25 234. 65. A shop is open within the statute, if any one can obtain access thereto to buy, al hough the door is closed. Comm i) Lynch, (8 G.) 74 384; Comm. v. Harrison, (11 G.) 77 308. 66. Upon the trial of a complaint for keep- ing a shop open, the jury are to c.ecide whether it was a work of necessity or chaiity; but it is not incumbent upon the government to show when the sun set on that day. Comm. i). Harrison, (11 G.) 77 308. 67. It was held, however, in a later case, that the clause as to works of necessity and charity does not apply to keeping a shop open. Comm. n. Nagle, 117 142. 68. One who conscientiously keeps the seventh day of the week as the Sabbath, is punishable for keeping his shop open on Sunday. Comm. v. Has, 122 40. See, also, Comm. o. Hyneman, 101 30. 69. The statute is cons itutional. Comm. n. Has, 122 40. 70. The defendant may be convicted under this statute, although the business done by him was the unlawful sale of liquors. Comm. «. Trickey, (13 A.) 95 559; Comm. v. Hyneman, 101 30; Comm. v. Nagle, 117 142. 71. And an acquittal for either offence will not bar a prosecution f , r the other. '" Comm. v. Shea, (14 G.) 80 386. 72. And evidence, used upon trial for one offence, may be used for the government upon a trial for the other. Comm. ii. Harrison, (11 G.) 77 308. 978 LOST PROPEETY— LOTTEEY 73. If it does not appear that the defendant was present, or who was in charge of the saloon, it is erroneous to instruct the jury that they can presume the defendant's guilt, from the improbability that a stranger could have access to and use the saloon in the day time; and that the fact that it was kept open by a servant of the defendant is provable by circumstantial evidence. Comm. ■». Mason, (12 A.) 94 185. 74. Two defendants, joined in one complaint for working on the Lord's day may be con- victed upon proof of a joint act. Comm. ■». Sampson, 97 407. 75. A complaint, charging that the defendant' " hoed in his field " on the Lord's day, is sup- ported by evidence that he hoed " in a field in a part of his garden." Comm. 1>. Josselyn, 97 411. Lost property. [See, also, Estray; Larceny, I, (1); Reward, Offer of; Wreck.] 1. The finder of lost property has a valid claim thereto, against all the world except the owner. McAvoy v. Medina, (11 A.) 93 548. 2. The statute concerning "wrecks and ship- wrecked goods," does not apply to property afloat, not appearing to have been cast ashore, or thrown overboard, or lost, from a vessel in distress Chase ». Corcoran, 106 286. 3. The statute concerning "timber afloat, or cast ashore," does not apply to a boat or vessel. Chase v. Corcoran, 106 286. 4. The statute concerning "lost money, or goods," and "stray beasts," applies only to property found on land. Chase v. Corcoran, 106 286. 5. The owner of a boat, who has taken it from a person who found it adrift in tide water, is liable to him for the necessary expenses of taking care of it. Chase v. Corcoran, 106 286. 6. The finder of goods derelict upon tne ocean, and brought into port, has a lien upon them until the salvage is paid, but he has no right to sell or pledge them. "Whitwell v. "Wells, (24 P.) 41 25. 7. But where the mate of a vessel found such derelict goods, and brought them into port, where the owners of the vessel took them, and agreed to sell them, and account to him for the proceeds, if the owner was not discovered; and no owner appeared in four years; it was held that they were liable to the mate for the proceeds. Ellery «. Cunningham, (1 Met.) 42 112. 8. A pocket book, accidsntally left by a cus- tomer upon a table in a shop, is not lost prop- erty; aliter, if it was dropped on the floor. McAvoy v. Medina, (11 A.) 93 548. 9. Another customer, who first sees and takes possession of a pocket book so left, cannot hold it against the shopkeeper, whose duty it is to keep it safely for the owner. McAvoy v. Medina, (11 A.) 93 548. Lottery. [As to the form, etc., of an indictment or com- plaint for violation of the lottery statutes, see In- dictment, VIII, (53). As to a search warrant, see, also. Search Warrant.] 1. The game, popularly known as "the pol- icy " or "envelope" game, is a lottery; and one can be convicted for setting up and promoting a lottery for carrying on such a game. Comm. v. Wright, 137 250. 2. Where a price is paid for the chance of a prize, and it is determined by any mechanical scheme, whether he who pays the money is to have a prize or nothing, that is a lottery. Comm. ». Wright, 137 250. See, also, Comm. v. Thacher, 97 583. 3. As to the difference between a bet and a lottery, see Comm. v. Wright, 137 250. 4. The statute relating to false or fictitious lottery tickets, applies to tickets in lotteries set up either in the Commonwealth or elsewhere. Comm. v. Harris, (13 A.) 95 534. 5. One who has set up or promoted an un- lawful lottery in this Commonwealth, and sold tickets therein, may be convicted, under the different sections of the statute, for setting up and promoting the lottery; for selling a ticket therein to one person; and for selling a false and fictitious lottery ticket to a different person. Comm. v. Harris, (13 A.) 95 534. 6. An indictment for a sale of a lottery ticket to two persons, is sustained by proof of the selection of the ticket by one, in the presence of the other, pursuant to an agreement between them to buy it on shares; delivery to the former with the latter's consent; and payment by each of a share of the price. Comm. ». Lang, (14 P.) 31 76. 7. Where the evidence tended to prove that the defendant sold lottery tickets, and had them in his possession for that purpose, an instruction to the jury that they must find him guilty, unless he had explained the circumstances con- sistently with an innocent intent, is not objec- tionable, as casting the burden of proving innocence on the defendant. Comm. v. Dana, (2 Met.) 43 329. 8. Lottery tickets seized under K. S., Ch. 142, § 1, and brought into court to be used as evi- dence, are not to be burnt or destroyed. Comm. v. Lottery Tickets, (5 C.) 59 369. 9. The admission in evidence upon the trial, of articles seized under a search warrant, and taken from the defendant, does not violate arti- cle 12 of the declaration of rights. Comm. ». Dana, (2 Met.) 43 329. 10. In a complaint for a search warrant, the complainant must make oath to his belief of the facts stated; it does not suffice for him to swear that he has reasonable cause to suspect, and does suspect, that they are true. Comm. v. Lottery Tickets, (5 C.) 59 369. 11. Books, kept in relation to the proceedings respecting a lottery, are "materials," liable to seizure under a search warrant. Comm. v. Dana, (2 Met.) 43 339. [See, also. Search Warrant.] LOW LAND— LUNATIC, ETC., I. 979 12. It was held, under St. 1825, Ch. 184, that a signboard, giving notice that lottery tickets were sold at the detendant's place of business, was an advertisement. Coram. v. Hooper, (5 P.) 22 42. 13. For rulings as to the effect of the excep- tion in the R. S. and previous statutes, in favor of a lottery, " authorized by law," see Gilbert v. Williams, 8 476; Homer v. Whitman, 15 132, Nichols v. Squire, (5 P.) 22 168; Williams v. Woodman, (8 P.) 25 78; Comm. v. Howes, (15 P.) 32 231; Comm. 1>. Dana, (2 Met.) 43 329. Low land. [See Meadow.] Lowell. [See, also, Bridge, II, (1); Highway, arts. 806,470; Town and City.] 1. The police court of Lowell is a court of record, within the statute of limitations. Bannegan v. Murphy, (13 Met.) 54 251. 2. As to the jurisdiction of that court before and since St. 1848, Ch. 331, see Comm. t). Pindar, (11 Met.) 52 539; Comm. v. Emery, (11 C.) 65 406. 3. St. 1836, Ch. 128, incorporating the city of Lowell, did not entitle a land owner to dam- ages, in consequence of raising or lowering a stvppf ' Brown v. Lowell, (8 Met.) 49 172. 4. As to the right of the city solicitor to recover against the city, for services in a cause for flowing land, and for examining records, and reporting on the business of his office, see Caverly 1>. Lowell, (1 A.) 83 289. Lumber. [See Inspection.] Lunatic; idiot; person of unsound mind. I. Civil Rights and Liabilities. II. Criminal Responsibility. III. Evidence as to Insanity, and other mental Incapacity. [As to the support of insane paupers, see Poor, II, <5). As to the rights, duties, and liabilities of the guardian of an insane person, see Guardian. For rulings upon a special contract to pay board of a lunatic at the Mass. General Hospital, see Contract, art. 13. .As to evidence upon questions of insanity, see, also. Evidence, I, (4); I, (8); III, (2). For analogous or additional rulings, see Divorce,IT, (1); Drunkenness; Infant, I; III; IV; Will, I, (I); Witness, art. 14 ] I. Civtl Rights and Liabilities. [For analogous cases, see, Infant, I; III; IT.] 1. At common law, a lunatic, although, being incapable of criminal intent, he is not liable to indictment and punishment for his wrongful acts, is civilly liable to make compensation to persons injured thereby. Morain 1>. Devlin, 132 87. See, also, Dickinson v. Barber, 9 225; Brown v. Howe, (9 G.) 75 84. 2. Thus he is liable in tort to one injured by the defective condition of his building, of which his guardian has the management. Morain v. Devlin, 132 87. 3. The contract of an insane person, including a contract of matrimony, is void. Middleborough v. Rochester, 12 363; Mitchell v. Kingman, (5 P.) 22 431; Seaver v. Phelps, (11 P.) 28 304; Car- rier «. Sears, (4 A.) 86 336. 4. A pledge by an insane person, or a payment of money to him, is void, although the other party acted in ignorance of the insanity. Seaver v. Phelps, (11 P.) 28 304; Leonard ». Leonard, (14 P.) 31 280. 5. But the maker of a promissory note can- not set up the insanity of the payee, at the time of the indorsement. Carrier v. Sears, (4 A.) 86 336; ex- plaining Peaslee v. Robbins, (3 Met.) 44 164. 6. The deed of an insane person is ineffectual to convey a title to land, good against the grantor, or his heirs or devisees, unless it is con- firmed by the latter, or by the lunatic's guar- dian, or by himself, when of sound mind. Valpey v. Rea, 130 384. i~ee, also, Wait v. Maxwell, (5 P.) 22 217; Allis v. Billings, (6 Met.) 47 415; Arnold ». Richmond I. Works, (1 G.) 67 434; Gibson «. Soper, (6 G.) 72 279; Carrier i>. Sears, (4 A.; 86 336; Howe v. Howe, 99 88. 7. The deed of a man and his wife of her land, while he was insane, was void, and not merely voidable, under G S., Ch. 108, § 3. Leggate v. Clark, 111 308. 8. A judgment creditor of a devisee may attack the conveyance of the testator, made after the will, on the ground of the latter's insanity. Valpey ». Rea, 130 384. 9. The guardian of an insane person may maintain a bill in equity for a reconveyance. Warfield v. Fisk, 136 219. [See, Guardian, II, (1).] 10. Money, paid to an infant or insane person for his conveyance or transfer of property, need not be tendered back as a condition of avoiding the same. _ „ Dana v. Stearns, (3 C.) 57 372; Gib- son v. Soper, (6 G.) 72 279; Chandlers Simmons, 97 50-; Bartlett v. Drake, lOO 174; Walsh v. Young, HO 396. Overruling, pro tanto, Badger v. Phinney, 15 359; Arnold v. Richmond I. Works, (1 G ) 67 434; Bartlett v. Cowles, (15 G.) 81 445. 11. The grantor's ratification of his deed, executed during his insanity, will not validate it as against a previous deed, executed while he was sane, and recorded after the execution, but before the ratification, of the second deed. Bond i). Bond, (7 A.) 89 1. 980 LUNATIC, ETC., I; H. 12. As to the nature and degree of insanity which avoids a deed, and the sufficiency of a ratification thereof, s e Bond v. Bond, (7 A.) 89 1. 13. An easement cannot be acquired by pre- scription, on the land of an insane person. Edson v. Munsell, (10 A.) 92 557. 14. But if a person is disseized while sane, his subsequent insanity will not prevent the ad- verse possession from running. Allis i>. Moore, (2 A.) 84 306. 15. The mere fact that one is insane, does not authorize his arrest and confinement with- out warrant, if he is not dangerous to himself or others. Look v. Dean, 108 116. 16. Upon the trial of an action for such an arrest, it is immaterial that the defendant acted under orders from a superior offlcer.or, that the plaintiff was afterward duly committed to a lunatic hospital. Look v. Dean, 108 116. 17. Although a party is insane, yet, if he is competent to testify, the other party may be a witness in his own behalf. Kendall v. May, (10 A.) 92 59. ' 18. Counsel for an insane person is entitled to a reasonable compensation, for prosecuting a habeas corpus to inquire into the person's in- sanity, if he is restrained without legal process, and the case was one where a judicial investi- gation was proper. Hallett v. Oakes, (1 C.) 55 296. 19. One who takes a wealthy insane person, who has no guardian, on a journey for pleasure, may recover the expenses thereof, if the jury find that they were reasonable and proper. Kendall v. May, (10 A.) 92 59. 20. An insane mar ied woman, committed to a lunatic hospital by her husband, is not entitled to a discharge on habeas corpus, if it appears that she is properly and kindly treated, although she has filed a libel for a divorce. Denny «. Tyler, (3 A.) 85 225. 21. "Whether a person has so far lost self control, as to be unable to make choice of a settlement, is for the jury. Townsend v. Pepperell, 99 40. 22. For rulings upon the degree of insanity, which is sufficient to deprive a person of such a power, and the evidence thereof, see Farnam v. Brooks, (9 P.) 26 212; Townsend v. Pepperell, 99 40. 23. After one has acquired a domicil, his sub- sequent insanity will not prevent his acquiring a settlement, by continuance of the domicil. Chicopee v. Whately, (6 A.) 88 508. 24. Tie settlement of an insane person, who has no sufficient estate to give him a settlement by reason thereof, follows that of his father, as well after as before he comes of age. Upton v. Northbridge, 15 237. 25. But not if he became insane after he at- tained majority. Buckland v.- Charlemont. (3 P.) 20 173. 26. A daughter's incipient insanity will not prevent her gaining a settlement, in the town of her father's settlement, when she attains ma- jority. Buckland v. Charlemont, (3 P.) 20 173. [See, further, as to the support of insane paupers. Poor, II, (5).] 27. A commitment of a lunatic to a hospital by a judge of probate, need not be in open court or recorded. Amherst v. Shelburne, (11 G.) 77 107. 28. A lunatic may be transf erred from one State hospital to another, under the original mittimus. Adams n. Ipswich, 116 570. 29. The repeal of St. 1833, Ch. 95, under which lunatics were committed to the hospital, did not discharge them. Poster v. Medfield, (3 Met.) 44 1. II. Criminal Responsibility. [See, also, post. III.] 30. As to the responsibility of one whose in- sanity is caused by drunkenness, see Drunken- ness. 31. In order to convict one of a crime, where- the defence is idiocy, the jury must be satisfied, when the evidence is all in, not only of the doing of the acts, but that they proceeded from a responsible agent, capable of commit- ting the offence. Comm. v. Heath, (11 G.) 77 303. 32. In order to constitute a crime, a person must have intelligence and capacity enough to have a criminal intent and purpose; and if his reason and mental powers are either so deficient that he has no will, conscience, or controlling mental power; or through the overwhelm ng influence of mental disease his intellectual power is for the time obliterated; he is not a re- sponsible agent, and is not punishable for criminal acts. Comm. ». Rogers, (1 Met.) 48 500; Morain «. Devlin, 132 87. 33. But a man is not excused from responsi- bility, if he has capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act; and has suffi- cient power of memory to recollect the relations, in which he stands to others, and others stand to him. Comm. ■». Rogers, (7 Met.) 48 500. 34. Where one has such a delusion, that he believes in the existence of an imaginary fact, and under that delusion does an act which would be justifiable if the fact existed, he is not responsible for the act. Comm. v. Rogers, (7 Met.) 48 500. 35. And one is not responsible for an act done under an uncontrollable impulse, which is the result of mental disease. Comm. ». Rogers, (7 Met.) 48 500. 36. In an indictment for a capital crime, if the jury find that the prisoner neglects to plead by the act of God, the court will remand him to jail without trial. Comm. ■». Braley, 1 103. LUNATIC, ETC., III. 981 87. So where one brought from the house of correction as a dangerous madman, was tried and acquitted on an indictment for murder, he was remanded by the court to the place from which he had been brought. Comm. v. Meriam, 7 168. [As to the deposition of persons acquitted of crime on the gr >unrl of insanity, see at. 1862, Ch. SK3, § 17: St. 1873, Ch.»27, §§ 1, X; f. &, (Jh. 214, §§ i9to 210 III. Evidence as to Insanity, and other mental Incapacity. [As to the competency of opinions, and the evi- dence of experts on this subject, see Evidence, I, (i). As to scientific bo. ks, see Evidence, I, (8). As to the burden of proof on questions of sanity, see Evidence, III, (2). Upon the question of testamen- tary capacity, see also, Wild, I, (1).] 38. Although the burden of proof as to the sanity of a testator is upon t e party who sets up the will, the fact that it is unreasonable in its provisions, is competent upon the question whether it is the testator's will, but imposes upon the party setting it up no new or special burden. Barker ». Comins, 1 10 477. 39. The presumption of law is that a person of full age is sane and responsible; and that presumption stands, until it is overcome by evidence. Comm. «. Heath, (11 G.) 77 303. 40. That presumption extends to a case where the sanity of a testator is in question. Brooks v. Barrett, (7 P.) 24 94; Bax- ter «. Abbott, (7 G.) 73 71. 41. The presumption that insanity, once proved, continues, does not apply, where it was caused by a violent disease. Hix n. Wittemore, (4 Met.) 45 545. 43. "Whether proof of insanity, after the time as to which the question arises, shall be admi ted, rests greatly in the sound discretion of the presiding judge, under the particular cir- cumstances of each case. Dickinson v. Barber, 9 225; Shailer v. Bumstead, 99 112; White «. Graves, 107 325. See, also, Peaslee v. Robbins, (3 Met.) 44 164; Comm. v. Pomerov, 117 143; "Wright v. "Wright, 139 '177. 43. But upon an indictment for murder, evidence of the defendant's subsequent acts or conduct is inadmissible, to prove his insanity at the time of the offence, unless they are con- nected with evidence of previous mental disor- der, or indicate such permanent unsoundn ss of mind, as necessarily to reach back beyond that time. Comm. ®. Pomeroy, 117 143. 44. As to the competency of secondary evi- dence to prove the appointment of a guardian, on the ground of insanity, upon an issue whether an easement had run by prescription against the ward, no such appointment being found of record, see Edson «. Munsell, (10 A.) 92 557. 45. The fact that the testator was under guardianship as an insane person, when thewilj was made, is prima facie evidence of insanity. Crowninshield v. Crowninshield, (2 G.) 68 524. See, also, Stone v. Damon, 12 488; Breed v. Pratt, (18 P.) 35 115. 46. But the inference may be rebutted, by the guardian, or by any other person intrusted. Breed i>. Pratt, (18 P.) 35 115; Crown- inshield v. Crowninshield, (2 G.) 68 524. 47. So the appointment of a guardian ad for a party, is pnma facie evidence of that party's insanity in any subsequent stage of the cause. Little v. Little, (13 G.) 79 264. 48. So a decree dismissing a petition for a guardian, and a verdict affirming the party's sanity, are only prima facie evidence. Gibson v. Soper, (6 G.) 72 279. 49. In a writ of entry by a married woman to recover land conveyed by her and her hus- band, on the ground that he was insane, an order of the judge of probate committing the husband to a lunatic hospital, under St. 1862, Ch. 223, § 3, is not admissible to prove his in- sanity. Leggate v. Clark, 111 308. 50. This, not only on the ground that it was res inte.- alios acta, but also because a man may be a fit subject for treatment and custody in a lunatic hospital, and yet have sufficient capacity to make a will or a contract, or to transact other business, or to be a witness. Leggate v. Clark, 111 308. See, also, Woodbury n. Obear, (7 G,) 73 467; Doud ii. Hall, (8 A ) 90 410; Kendall v. May, (10 A.) 92 59. 51. On the question of mental capacity of the defendant in a criminal cause, a witness, not an expert, may be asked whether he noticed a difference in the defendant's mode of doing business at the time of the offence, and previ- ously. Comm. i>. Brayman, 136 438. 52. Such a witness may testify whether, within a given time, a person has failed men- tally or physically. Comm. v. Brayman, 136 438. 53. "Where the defendant was 69 years old at the time of the offence charged, and there is evidence tending to show a loss of mind and memory at the time, evidence is competent that just previously he met with a large loss of property. Comm. ». Brayman, 136 438. See, however, Hall «. Hall, (17 P.) 34 373. 54. Upon the question, whether a testatrix was of unsound mind and under undue influ- ence, where it had been shown that the testatrix had said that her sisters, the contestants, were ashamed of her and had tried to put her down, the contestants cannot show that they used their property for her support, without proof that she knew that fact. Mansfield «. Frobisher, 111 311. 55. The testator's suicide, soon after making the will, is not conclusive evidence of his insanity. Brooks v. Barrett, (7 P.) 24 94. 982 LUNATIC, ETC., in— MALICIOUS MISCHIEF. 56. Proof of insanity of the testator's parents and of an uncle is competent upon an issue of his sanity. Baxter v. Abbott, (7 G.) 73 71. 57. Upon an appeal from the decree of the probate court, allowing a will, evidence that an attesting witness, since deceased, who testified below to the testator's sanity, declared, after the probate, that he wished to unsay what he said, and that the testator was insane, is incom- petent for the contestants. Baxter v. Abbott, (7 G.) 73 71. 58. The attestation of a will is not evidence, that the witness believed the testator to be sane. Baxter v. Abbott, (7 G.) 73 71. 59. Upon an appeal by an heir at law from a decree allowing a will, statements of the tes- tator that the heir had neglected him, and tried to poison him, admitted to show an insane de- lusion, are not evidence of the truth of the statements. Woodbury v. Obear, (7 G.) 73 467. 60. A verdict that a testator was of unsound mind, and unduly influenced, is not inconsist- ent. Woodbury v. Obear, (7 G.) 73 467. 61. For rulings upon the question of the sanity of A when he executed a deed for the benefit of B, of the declarations of counsel in the presence of A and B, and of efforts of B to procure the deed, see Brooks ». Tarbell, 103 496. 62. Upon a trial for murder, where the de- fence was an insane delusion, that the deceased and others were engaged in a conspiracy against the defendant, it is competent for the defence to prove expressions of hostile feelings towards the defendant, made by the deceased, but not in the defendant's presence, as tending to show some ground for the latter's apprehension. Comm. v. Wilson, (1 G.) 67 337. 63. In an action at law, where the issue is whether a person was insane on a certain day, if the plaintiff proves that he was insane at an earlier day, and the insanity was not of a tem- porary character, the burden of proof is not thereby cast upon the defendant, to show that he was sane on the day in question. Wright v. Wright, 139 177. 64. Upon such an issue, an exception will not lie to the refusal of the judge to instruct the jury, that, in the absence of frenzy, delusion is the legal test of insanity; and that an insane delusion consists of the belief of things as real, which do not in fact exist, or which a rational person would not believe. Wright «. Wright, 139 177. 65. The proper course is to leave it to the jury, in general terms, whether the person was of unsound mind, and incapable of understand- ing and deciding upon the terms of the con- ' Wright v. Wright, 139 177. Lunenburg. Boundary of, see Putnam i>. Bond, 100 58. M. Machinery. Mackerel. Magistrate. [See Judge ; Justice op the Peace; Police Coukt.] [See Fixture.] o [See Inspection.] Mail. [May be driven on the Lord's day, see Lord's Day, I, (2). As to the presumption of the receipt of letters, see, EvidencbJIV', (9). As to other matters, see Post Office.] Maine, state of. 1. The state of Maine cannot maintain an action here upon a contract made before the B. S., with the warden of its state prison. Maine 1>. Gould, (11 Met.) 52 220. 2. The separation of Maine from Massachu- setts did not affect the right of a town in the former, to maintain an action against a town in the latter, upon a promise, made before the separation, to pay a pauper's expenses. Belfast v. Leominster, (IP.) 18 1 23. 3. G. S., Ch. 49, §§ 122 to 124, as to the in- spection of lime brought from Maine were un- constitutional. Higgins v. Casks of lime, 130 1. Maintenance. [See Champerty and Maintenance.] Malice. [See Homicide, II, (1); Indictment, in, (4): III, (5); III, (6); Libel and Slander, III; Malicious Mischief; Malicious Prosecution, I, (3).] -o- Malicious mischief. [As to an indictment or complaint for malicious mischief, see Indictment, VIET, (53). As to obstruct- ing railroad trains or street cars, see Obstruction of Railroad; Indictment, "VIII, (63).] 1. Malicious mischief, amounting to a crime, is an injury done out of a spirit of either wan- ton cruelty or wicked revenge. Comm v. Walden, (3 C.) 57 558. MALICIOUS PEOSECUTION, I, (1). 983 2. In order to convict for this offence, the jury must be satisfied, not only that the injury- was intentional, but that it was done out of cruelty, hostility, or revenge. Comm. v Williams, 110 401. 3. Poisoning another's hens is punishable under G. S. Oh. 161, § 85; P. S., Ch. 203, § 103. Comm. v. Falvey, 108 304. 4. Evidence that the hens found and ate the poison, at a place where the defendant exposed it, with intent that they should do so, will sus- tain an indictment alleging that he caused them to eat it. Comm. ». Falvey, 108 304. 5. Maliciously poisoning a cow is an offence at common law. Comm. v. Leach, 1 59. 6. Under the statute, it is not a material vari- ance, where the indictment charges the defend- ant with saturating a potato with poison, with intent to give it to a horse, and the evidence shows that a hole was made in a potato, and filled with bran saturated with the poison. Comm. i), McLaughlin, 105 460. 7. Upon the trial of an indictment against several for malicious mischief to a sloop, by taking her fronv her moorings, evidence that several hours afterwards the defendants were pursued in a steamboat, and, when overtaken, one of them made threats of violence against whomsoever should attempt to arrest him, is inadmissible, if there is nothing to connect the language with the offence charged. Comm. v. Smith, (2 A.) 84 517. 8. An indictment for wilfully, etc., injuring and destroying a cable, by which a fish car was moored, is sustained by proof of cutting off a few feet from the end thereof. Comm. v. Soule, (2 Met.) 43 21. 9. It is an indictable offence to discharge a gun at wild fowl, with knowledge and warning that the report will injuriously affect the health of a sick person, near by Comm. v. Wing, (9 P ) 26 1. See, also, Cole i>. Fisher, 11 137. 10. As to the effect of St. 1846, Ch. 52, § 1, upon E. S., Ch. 126, § 39, see Britton «. Comm , (1 C.) 55 302. 11. Maliciously burning ricks of hay and straw was not punishable, under St. 1804, Ch. 131, for the punishment of incendiaries. Comm. «. Macomber, 3 254. Malicious prosecution; abuse of process. I. In what Cases the Action lies, ok does HOT LIE. (1.) General principles. (2.) Probable cause; malice. II. Damages. TSee, also, Action, I; Arrest, III; Assault, II; Conspiracy, II.] 1. In what Cases the Action libs, or does not LIE. (1.) General principles. 1 . An action for a malicious prosecution for a criminal offence does not lie, where the magis- trate, before whom the complaint was made, had no jurisdiction of the offence charged. Bixby v. Brundige, (2 G.) 68 129; Whiting i). Johnson, (6 G.) 72 246. See, also, Bodwell v. Osgood, (3 P.) 20 379. ' 2. But the action will lie notwithstanding a want of jurisdiction, by reason of the insuffi- ciency of the complaint, or a de ect in the pro- cess whe' eby the plaintiff was arrested, if the magistrate had jurisdiction of the subject matter of the complaint. Gibbs r. Ames, 1 19 60. See, also, Bodwell ». Osgood, (3 P.) 20 379. 3. For maliciously prosecuting a good cause of action in the manner provided by law, for the purpose of recovering damages therein, there is no remedy, because there is no wrong. Johnson v. Reed, 136 421. See, also, Lindsay v. Lamed, 17 190; Ran- dall ii. Hazelton, (12 A.) 94 412. 4. But for falsely and maliciously, and with- out probable cause, suing o . t civil process and causing the party to be arrested, or his goods to be attached, an action lies. Lindsay ». Lamed, 17 190; Savage ». Brewer, (16 P.) 33 453; Bicknell v. Dorion, (16 P.) 33 478; Cardival v. Smith, 109 158 ; Hamilburgh v. Shepard, 119 30. 5. Such an action lies against the attorney, if he knew the suit to be groundless, and acted without authority. Bicknell e. Dorion, (16 P.) 33 478 6. The rule extends to a case, where the suit was knowingly and maliciously, brought and an arrest effected, for a much larger sum than the amount of the plaintiff's just demand. Savage v. Brewer, (16 P.) 33 453. 7. Where A brings an action upon a promis- sory note against B, who sets up in defence payment, and files a declaration in set off, and. the jury return a verdict for B on the set off, the verdict is a conclusive answer to an action for malicious prosecution Dolan v. Thompson, 129 205. 8. And, semble, that if the debtor in an action settles the demand upon which an attachment was made, by paying part of the sum de- manded, he is thereby estopped from denying, in an action for malicious prosecution, that the creditor had a just claim for that amount. Savage ». Brewer, (16 P.) 33 453. See, also, Sartwell v. Parker, 141 405. 9. Where one prosecutes a suit against an- other, in the name of a third person, without the latter's authority, he is liable, without proof of malice. Bond «. Chapin, (8 Met.) 49 31; Smith v. Hyndman, (10 C.) 64 554. See, also, Pierce v. Thompson, (6 P.) 23 193. 984 MALICIOUS PEOSECUTION, I, (1), (2). 10. AUter, if he did so at the plaintiff's re- quest, although made indirectly to another person. Linda 0. Hudson, (1 C.) 55 385. 11. The intentional nonentry of a writ, on which property has been attached, and the bringing of a new action for the same cause of action, in which the same property and other property are at. ached, do not constitute a legal cause of action. Johnson v. Reed, 136 421. See, also, Harding u. Downs, 110 56; Hamil- burgh v. Shepard, 119 30; Duffee «. Call, 123 318. Contra, serrMe, Cardival v. Smith, 109 158. 12. Where the prosecution, alleged to have been malicious, is by complaint on behalf of the government for a crime, and an indictment was duly found, an acquittal by a jury must be shown to maintain the action: a nolle prosequi will not suffice. Bacon v. Towne, (4 0.) 58 217; Parker v. Farley, (10 C.) 64 279; Bacon «. Waters, (2 A.) 84 400; Cardival v. Smith, 109 158. See, also, Brown ». Lakeman, (12 C.) 66 482; Dennehey s. Woodsum, 100 195; Coupal v. Ward, 106 289. This rule was qualified and limited in Graves v. Dawson, 130 78. 13. But if it is commenced by complaint be- fore a magistrate, who has jurisdicti n only to bind over or discharge, his record discharging the accused is eq: ivalent to an acquittal. Sayles v. Briggs, (4 Met.) 45 421; Cardival v. Smith, 109 158; Gibbs «. Ames, 119 00; Moyle v. Drake, 141 238. See, also, Stone v. Crocker, (24 P.) 41 81; Olmstead «. Partridge, (16 G.) 82 381. 14. If the accused, after being arrested, is discharged by the grand jury's failure to indict, that U a sufficient termination. Cardival i>. Smith, 109 158. See, also, Bacon « Waters, (2 A.) 84 400. 15. But not until the end of the term. Johnson «. Shove, (6 G.) 72 498. And not then, if the cause is continued to the next t.rm. Knott ®. Sargent, 125 95. 16. If the party is discharged for a failure to indict, he may u.aintain the action, although a nolle prosequi was entered. Graves ». Dawson, 130 78; Graves v. Dawson, 133 419. 17. If the suit complained of was a civil ac- tion, and the plaintiff therein be ame nonsuit, or settled the cause for part of the demand, or otherwise discharged the suit, the action lies. Cardival v. Smith, 109 lf-8. See, also, Savage v. Brewer, (16 P.) 33 453; Bicknell «. Dorion, (16 P.) 33 478. 18. But if the action for malicious prosecu- tion is begun before the former suit is ended, it will fail for that reason. O'Brien v. Barry, 106 300; Hamil- burgh i). Shepard, 119 30. See, also, Bicknell v. Dorion, (16 P.) 33 478. 19. The submission to referees of a ground- less civil action, is not a waiver of the defend- ant's right to sue for malicious prosecution. Pierce «. Thompson, (6 P.) 23 193. 20. The action will not lie, because the plain- tiff in the former suit, having commenced it in good faith, maliciously continued his attach- ment, after he became satisfied that the amt was groundless. Stone v. Swift, (4 P.) 21 389. 21. A count for breaking and entering the plaintiff's close, cannot be joined with a count for malicious prosecution. Allen «, Codman, 139 136. 22. An action for malicious prosecution lies against a savings bank. Beeds. Home Sav. Bk., 130 443. 23. The common law action, for the abuse of legal process, is confined to the use of process for the purpose of compelling the defendant to do some collateral thing, which he could not lawfully be compelled to do. Johnson v. Re d, 136 421. See, also, White «. Dingley, 4 433; Watkins i>. Baird, 6 506; Hayden v. Shed, 11 500; Stone v. Swift, (4 P.) 21 389. (2.) Probable cause; malice. 24. In order to maintain an action for mali- cious prosecution of either a civil suit or a criminal proceedii g, the plaintiff must aver and prove, that it was commenced and prose- cuted without reasonable or probable cause, and that it was malicious. Wills*. Noyes, (12 P.) 29 324. See, also, Stone*. Swift, (4 P.) 21 389; Den- nehey v. Woodsum, lOO 195; Ripley v. McBarron, 125 272; Reed v. Home Sav. Bk., 130 443; Folger v. Wash- burn, 137 60; and ante, I, (1). 25. And a declaration which fails to make both those allegations distinctly is demurrable. Dennehey ». Woodsum, 100 195. 26. As to the probable cause, the legal pre- sumption that every one knows the law is ap- plicable, and where the former suit could not, as a matter of law, be maintained, the defend- ant is required to show that he did not know that such was the law. Wills v. Noyes, (12 P.) 29 324. 27. Although the want of probable cause is a negative averment, the burden of establishing it is upon the plaintiff. Stone v. Crocker, (24 P.) 41 81; Kid- der «. Parkhurst, (3 A.) 85 393; Good «. French, 115 201; Legallee®. Blais- dell, 134 473; Folger «. Washburn, 137 60. 28. The existence of probable cause is to be judged of, not upon the actual state of 'the case, but upon the honest and reasonable belief of the party proseeuting. Kidder v. Parkhurst, (3 A.) 85 393. See, also, Bacon «. Towne, (4 C.) 58 217. 29. Whether there was probable cause, is a question of law upon the evidence; but if the MALICIOUS PKOSECUTION, I, (2). 985 evidence is contradictory, the court will submit the question to the jury, under instructions adapted to the facts wliich they shall nnd to be proved. Stone v. Crocker, (24 P.) 41 81; Bacon v. Towne, (4 C.J 58 217; Cloon a. Gerry, (13 G.) 79 201; Kidder «. Parkhurst, (3 A.) 85 393; Good v. French, 115 201; Sartwell v. Parker, 141 405. 30. If a prosecutor, after procuring an arrest upon a criminal charge, fails to enter any com- plaint, that is evidence of want of probable cause. Cardival v. Smith, 109 158. 81. As to malice, to do a wrongful or unlaw- ful act, knowing it to be such, constitutes malice; and the plaintiff in the former suit can- not justify doing such an act, on the ground that he did it to obtain a lawful end. Wills v. Noyes, (12 P.) 29 324. 32. The malice necessary to be shown, in order to maintain this action, is not necessarily revenge, or other base and malignant passion; if the act was done wilfully and purposely, contrary to one's own conviction of duty, with wilful disregard of the rights of others, either to compass some unlawful end, or some lawful end by lawful means, that constitutes legal malice. Wills v, Noyes, (12 P.) 29 324. 33. If the former suit was to recover a gen- eral balance, and the balance is found against the plaintiff therein, that shows that the suit was groundless; and if he had. the means of ascertaining the true balance, that is evidence of malice. Pierce v. Thompson, (6 P.) 23 193, 34. So where the defendant overstated the amount of the stolen p.operty, in a complaint for larceny. Olmsteadi). Partridge, (16 G.) 82 381. 35. Where the former suit was commenced without authority, evidence of malice, although unnecessary, is competent. Smith a. Hyndman, (10 C.) 64 554. 36. In an action against a railroad company, for the prosecution, on the complaint of the con- dnctor, of a passenger for fraudulently evading his fare, the honest aud reasonable belief of the conductor, in making the complaint, is a neces- sary element in determinina; whether he acted without probable cause and maliciously. Krulevitz v. Eastern Kailroad, 140 573. 37. In ordinary cases, proof of want of prob- able cause is sufficient proof of malice; but the question of malice is still a distinct issue, and even then the defendant may show that I he former proceeding was instituted in good faith, and without malice. And from malice, want of probable cause cannot be inferred. Ripley v. McBarron, 125 272; Reed D.HomeSav. Bk., 130 443. See, also, ■Savage v. Brewer, (16 P.) 33 453; Wilder «. Holden, (24 P.) 41 8; Stone «. Crocker, (24 P.) 41 81; Bond v. Chapin, (8 Met.) 49 31 ; Parker «. Parley, (10 C.) 64 279; Cloon v. Gerry, (13 G.) 79 201. 38. Proof that in fact A had committed an assault upon B's servant, and that by mistake. Vol. 1—124 the complaint was made for an assault upon B is competent upon the issue of maiice, in an action by A against B for malicious prosecution Ripley «. JVlcBarron, 125 272. 39. Want of probable cause is not established merely by a trial and acquittal. Kidder «. larkhurst, (3 A.) 85 393. See, also, Stone v. Crocker, (24 P. ) 41 81; Bacon «. Towne, (4 C.) 58 217. 40. Where the former prosecution was for obtaining flour under false pretences, evidence that the party was in good credit, and that there is a custom to buy flour in another's name, is incompetent to s. ow want of probable cause. Good v. French, 115 201. 41. In an action for a malicious arrest, authorized by a certificate procured by the defendant, under § 5 of the poor debtor's act of 1877; P. S., Ch. 162, § 25; it is not enough to show that the plaintiff did not in fact intend to leave the Commonwealih; he must also show that the defendant had no probable cause to believe that he so intended. Legallec v. Blaisdell, 134 473. 42. That the plaintiff in an action for mali- cious prosecution upon a criminal charge was convicted, is ordinarily conclusive evii ence of the existence of probable cause, and defeats the action, although the 'conviction was before a trial justice, and upon appeal to the superior court he was acquitted. Whitney v. Peckham, 15 243; Comm. v. Davis, (11 P.) 28 432; Cloon v. Gerry, (13 G.) 79 201; Dennehey®. Woodsum, lOO 195. These cases overrule dicta in Bacon v. Towne, (4 C.) 58 217. 43. And the plaintiff cannot show that the conviction below was procured by false testi- mony. Parker v. Parley, (10 C.) 64 279; Parker «. Huntington, (7 G.) 73 36; Dennehey v. Woodsum, lOO 195. 44. But, qu,, whether the plaintiff might not avoid the effect of the conviction below, by showing that it was obtained solely by the false testimony of the defendant himself, given in pursuance of his original malicious purpose. Dennehey v. Woodsum, lOO 195. 45. The defendant, to show probable cause and absence of malice, may show by the magis- trate, the proof before him, without calling the witnesses, or, if the witnesses are called, and are unable to remember what their testimony was. Bacon v. Towne, (4 C.) 58 217. 46. So he may show conversations between third persons, communicated to him. Bacon «. Towne, (4 C.) 58 217. 47. But evidence that before an assault upon him, the defendant had been in ormed that the plaintiff carried a weapon, and had been prose- cuted therefor, has no tendency to show, that the defendant had probable cause for prosecut- ing the plaintiff for assaulting him with a knife. Bullock v. Lindsay, (9 G.) 75 30. 48. Where it appeared that the plaintiff was arrested, upon the defendant's complaint for a wilful trespass, in cutting 300 trees on the de- fendant's land; and it appeared that the land was an uninclosed brush pasture; that the plain- tiff, having a license to cut a foot path upon 986 MALICIOUS PROSECUTION, I, (2); II— MANDAMUS. adjoining land, by mistake cut it on the de- fendant's land; that only 10 trees were cut down; that the damage was trifling, and the plaintiff offered to pay it bef ore the complaint was made; it was held that this was sufficient evidence of malice and want of probable cause. Moyle d. Drake, 141 238. 49. Where a settlement was made of an action by A against B, and also of an action by B against A, upon "which B paid to A a certain sum, and judgment in the .former action was rendered in his favor, it was held that B could not maintain an action for malicious prosecu- tion against A. Sartwell v. Parker, 141 405. 50. As to the effect of a variance between the indictment and the charge, upon the ques- tion of probable cause, see White v. Ray, (8 P.) 25 467. 51. If two or more actions are submitted to referees, who award a balance to the plaintiff, that is not conclusive evidence of probable cause, as regards those which were groundless. Pierce v. Thompson, (6 P.) 23 193. 52. As to circumstantial evidence of probable cause for making a complaint for larceny, see Wilder «. Holden, (24 P. ) 41 8. 53. In malicious prosecution, for charging the plaintiff with removing a fence between his and the defendant's land, the boundary line having been fettled by arbitration, evidence of removals of the fence before the submission has no tendency to show probable cause. Tillotson t>. Warner, (3 G.) 69 574. 54. That the defendant, in instituting the proseculion compla'ned of, acted under the advice of counsel, tends to rebut the allegations of malice and want cf probable cause, and is therefore admissible, under a general denial. Folger v. Washburn, 137 60. See, also, Stone v. Swift, (4 P.) 21 389; Wills v. Noyes, (12 P.) 29 324; Wilder «. Holden, (24 P.) 41 8; Comm. ». Bradford, (9 Met.) 50 268. 55. But evidence that he acted under the advice of one not a lawy.r is incompetent. Olmstead d. Partridge, (16 G.) 82 381. 56. As to the sufficiency of the evidence of want of probable cause, to sustain an action against a deputy sheriff, for prosecuting the defendant in an attachment, for breaking and entering with intent to steal the goods attached. Bobsin v. Kingsbury, 138 538. 57. As to the sufficiency of similar evidence, in an action against a landlord by a tenant, for bringing an action of ejectment. Allen «. Codman, 139 136. II. Damages. 58. The defendant may show, under a general denial, in mitigation of damages, that the plain- tiff was guilty of the offence charged upon him; although he cannot justify by showing that he knew the fact, when he made the charge. Bacon v. Towne, (4 C.) 58 217. 59. Semble, that evidence of the plaintiff's bad character is admissible in mitigation of Bacon v. Towne, (4 C.) 58 217. 60. But if the plaintiff disclaims damages for injury to his character, the defendant cannot attack h.s character, either to rebut the evidence of malice, or in mitigation of damages. Smitn v. Hyndman, (10 C.) 64 554. 61. The defendant cannot show in mitigation of damages, that the plaintiff had instituted similar proceedings against him. Bliss v. Franklin, (13 A.) 95 244. 62. If no specific instructions are asked as to damages, the jury should be instructed, if they find for the plaintiff, to give him such a sum as will indemnify him for the injuries he has sus- tained by the defendant's wrongful acts. Leach o. Wilbur, (9 A.) 91 212. 63. The plaintiff may recover in this action damages for his imprisonment, although the statute of limitations has run against an action for false imprisonment. Graves v. Dawson, 133 419. Malpractice. [See Abortion; Attorney; Physician.] Malum in se ; malum prohibitum. 1. A defendant is bound to know the facts, and obey the law, at his peril, not only with re- spect to acts w ich are mala in se, but with re- spect to those which are made mala prohibita from motives of public policy, and not because of their moral turpitude, or the criminal intent with which they are committed. Comm. v. Raymond, 97 567. See, also, Comm. •». Willard, (22 P.) 39 476; Comm. v. Boynton, (2 A.) 84 160; Comm. v. Farren, (9 A.) 91 489; Comm. v. Waite, (11 A.) 93 264. [See, also, Indictment, III, (5).l 2. Acts which are mala in se are absolutely void; but acts which are mala proMMta are either void r voidable, according to the nature and effect of the act prohibited. F etcher v. Stone, (3 P.) 20 250; per Wilde, J., p. 253. Manchester. 1. The colonial grant of 1640, in connection with subsequent proceedings in 1642 and 1645, is sufficient to show that the title to the beach, therein included, vested in the town of Man- chester. Tappan v. Bumham, (8 A.) 90 65. [See, also, Town and CrnrJ Mandamus. I. General Rules; when the Wbtt IB GRANTED OK BEFDSED. MANDAMUS, I. 98T II. Application for the Whit; Practice and Proceedings. [See, also, Certiorari ; Prohibition j Quo Warranto.] I. General Rules ; when the Writ is GRANTED OR REFUSED. 1. The proper office of a mandamus, is to compel, not only inferior courts, but also officers and corporations, to obey and execute the laws, especially in matters of public concern, where no other equally effectual remedy is provided. Atty.-Genl. » Boston, 123 460, per Gray, Ch. J., p. 471. See, also, Chase v. Blackstone Canal, (10 P.) 27 244. 2. It ought to be used upon all occasions where the law has establishe i no specific remedy, and where, in justice and good government, there ought to be one. The value of the mat- ter, or the degree of its importance to the public police, is not scrupulously weighed. If there is a right, and no other specific remedy, this should not be denied. Atty.-Genl. v. Boston, 123 460, per Gray, Ch. J., p. 471. 3. The granting of the writ of mandamus rests in the sound judicial discretion of the court, which has cautiously abstained from laying down' any limits to the exercise of this discretionary power. Atty.-Genl. «. Boston, 123 460, per Gray, Ch. J., p. 471; See, also, Comm. i>. Hampden Sessions, (2 P.) 19 414; In re Strong, 20 P.) 37 484; Carpenter v Bristol Com'rs, (21 P.) 38 258; St. Luke's Church v. Slack, (7 C.) 61 226; American R. W. P. Co. v. Haven, 101 398; Murray v. Stevens, HO 95. 4. But where the petitioner has a clear, direct, and adequate remedy by action at law, no case is shown for the extraordinary jurisdiction to issue a mandamus. Wheelocka. Suffolk Co. Auditor, 130 486. See, also, Oakes v. Hill, (8 P.) 25 47; Lexington ». Mulliken, (7 G.) 73 280; Adams «. Hampden Com'rs, (16 G.) 82 41; Murray ». fctevens, HO 95. 5. Especially where no public interest or corporate right is in question. Stackpole e. Seymour, 127 104. 6. Where, however, the petitioner is entitled to compensation out of a particular fund only, and not to a general judgment against a town, a mandamus will issue against the selectmen, even in case of an ordinary tort. Osborn v. Lenox Selectmen, (2 A.) 84 207. 7. Applications for writs of mandamus, being addressed to the sound judicial discretion of the court, the circumstances of each case must be considered; and the court will not giant the writ, unless satisfierl that it is necessary to do so in order to secure the execution of the laws; but if the person or corporation against whom or which the writ is demanded, has manifested a determination to disobey the laws, the court is not obliged to wait until the evil is done, before issuing the writ. Att'y-Genl. v. Boston, 123 460, per Gray, Ch. J., p. 474. 8. As a general rule, there must have been a demand of that which the party moving for the writ desires to enforce; but whtre a muni- cipal corporation, or board, has distinctly mani- fested its intention not to perform a definite public duty, no demand is necessary. Att'y-Genl. v. Boston, 123 460. 9. Where no misapplication of funds held upon a public trust, and no nuisance to the public are shown, the appropriate remedy to compel the performance of a duty imposed upon a corporation by statute, is not by decree in equity, but by mandamus. Att'y-Genl. v. Boston, 123 460, ex- plaining Att'y-Genl. t>. Salem, 103 138. See, also, Att'y-Genl. v. Tudor Ice Co., 104 239. 10. In such a case the attorney-general, as representing the public, may properly apply for the mandamus, where the matter is one of public interest and use; qu., if a private person may apply. Att'y-Genl. v. Boston, 123 460. See, also, In re Wellington, (16 P.) 33 87; Att'y-Genl. i>. Lawrence, 111 90; Alger v. Seaver, 138 331. 11. A mandamus will not lie to compel the marshal of a city to station a police officer at a certain place, in accordance with the order of the board of alderman. The remedy is by, proceeding under the charter for his removal. And, qu., whether a mandamus will issue to a subordinate officer. Alger v. Seaver, 138 331. 12. The proper function of a mandamus is to compel the tribunal, body, or person, to whom it is directed, to perform a ministerial act; or, where its functions axe of a judicial character, to render some judgment or decision. Chase v. Blackstone Canal, (10 P.) 27 244; Gibbs ». Hampden Com'rs, (19 P.) 36 298; Ex parte Strong, (20 P.) 37 484; Carpenter v. Bristol Com'rs, (21 P.) 38 258; Harrington®. Berkshire Com'rs, (22 P.) 39 i 63; Dodger Essex Com'rs, (3 Met.) 44 380; Richards v. Bristol Com'rs, 120 401 ; Braconier v. Packard, 136 50. See, also, Comm. v. Hampden Sessions, (2 P.) 19 414; Waldron u. Lee, (5 P.) 22 323. 13. It will not lie to compel action in a matter resting in the discretion of the tribunal, body, or officer, or where its or his decision is made final by statute. Gray v. Bridge, (11 P.) 28 189; Rice ii. Middlesex Com'rs, (13 P.) 30 225; Ex parte Morse, (18 P.) 35 443; Smith v. Boston, (1 G.) 67 72; Lunt v. Davi- son 104 498; Peabody v. Boston School Com., 115 383. 14. Thus where a statute provided for the discontinuance of several railroad tracks, etc. , in a city, and the construction by the city of a track to accommodate business establishments, etc., it was held that the duty was confided to the judgment and discretion of the city authorities, and mandamus would not lie. Rice Machine, etc., Co. v. Worcester, 130 575. 15. It lies to compel the treasurer of a town, to deliver to the board of water commissioners, 988 MANDAMUS, I; IL bonds in his hands, issued by the town to raise money for the works. Pearsons v. Ranlett, 110 118. 16. It lies to compel a public officer or an officer of a corporation, whose term has expired, to deliver over to his successor the books, papers, etc., belonging to the office. Taylor v. Henry, (2 P.) 19 397; St. Luke's Church «. Slack, (7 C.) 61 226; American E. W. P. Co. ». Haven, 101 398. 17. It lies to compel a corporation to admit a member wrongfully expelled, but not without proof that the expulsion was wrongful. Barrows ». Mass. Medical Soc, (12 C.) 66 402. See, also, Crocker v. Old South Society, 106 489. 18. It lies to compel the clerk of a town or a parish to record a vote. Manning ». Gloucester Par., (6 P.) 23 6. 19. Or to compel the school committee of a town to admit a qualified person to the town school. Nourse v. Merriam, (8 C.) 62 11. 20 It lies to compel a court to certify to another court a recognizance, so that it may be entered of rec rd. Johnson ». Randall, 7 340. 21. It lies to compel a judge of probate to issue process for the arrest of an insolvent" for refusing to be examined; but not without proof that the facts required by statute to be set forth appeared to such judge to be true. Kimball «. Morris, (2 Met.) 43 573. 22. It lies' to compel commissioners of high- ways cr county commissioners to perform their duties, as to the making, laying out, etc., of roads, estimating damages, or the like. Springfield v. Hampden C m'rs, (4 P.) 21 68; Dangers * Essex Com'rs, (6 P.) 23 20; Boxford v. Essex Com'rs, (7 P.) 24 337; Carpenter v. Bristol Com'rs, (21 P.) 38 258; Harrington ■». Berkshire Com'rs, (22 P.) 39 263; Dodge B.Essex Com'rs, (3 Met.) 44 380. 23. Or, under the former system, to the court of sessions, to compel it to accept a verdict for highway damages. Comm. v. Norfolk Sessions, 5 435; Comm. v. Middlesex Sessions, 9 388. 24. It does not lie to compel the mayor of a city to sign a license, granted by the board of aldermen, where the statute requires him to be satisfied that the petitioner has complied with its conditions, although the mayor did not assign that ground for his refusal. Deehan v. Johnson, 141 23, distin- guishing Braconier ». Packard, 136 50. 25. It does not lie to compel county commis- sioners to order part of the expense of a town, in laying out a highway, to be repaid out of the county treasury. Ex parte Ipswich, (24 P.) 41 343. 26. Or, under the statute of 1827, to compel them to issue a warrant for a new jury, where one jury has not been able to agree, as to locat- ing a highway. Mendon -o. Worcester Co., (10 P.) 27 235. 27. Or to compel them to complete a town way, laid out by them, but which has since become unnecessary. Hill v. "Worcester Com'rs, (4 G.) 70 414. 28. It lies to enforce the right of a person elected to a public office, and to compel the person claiming to fill the office to refrain from acting as such. In re Strong, (20 P.) 37 484; Putnam ». Langley, 133 204. See, also, How- ard ». Gage, 6 462; Ellis v. Brislol Com'rs, (2 G.) 68 370; Conlin v. Al- drich, 98 557. 29. But not to compel the mayor to make a new nomination to a municipal office, to which no one but the incumbent lays claim, and while an information is pending to try his title. Atty.-Gen'la. New Bedford, 128 312. See, also, Oakes v. Hill, (8 P.) 25 47; In re Strong, (20 P.) 37 484. 30. Qu. , whether a mandamus lies to a public officer, after the expiration of the term of office held by him, at the time of filing the petition. Atty.-Gen'l v. New Bedford, 128 312. II. Application fob the Writ; Practice and Proceedings. 31. The petitioner for the writ must show an interest or title in himself to the relief prayed for; a servant or agent cannot enforce, in his own name, the rights of his master or prin- cipal. Bates «. Plymouth Overseers, (14 G.) SO 163. 32. A committee, appointed by a town to audit the accounts of the overseers of the poor, cannot have a mandamus for the books. Bates v. Plymouth Overseers, (14 G.) 80 163. 33. A religious society may have the writ, to compel its former treasurer to deliver to his successor the books and papers. St. Luke's Church v. Slack, (7 C.) 61 226. 34. Semble, that the officer may apply in his own name. Taylor ». Henry, (2 P.) 19 397. 35. Semble, that selectmen cannot apply, in behalf of the town, for a mandamus against a town officer. Lexington «. Mulliken, (7 G.) 73 280. [For additional rulings as to the proper party to apply for the writ, see ante, I.] 86. Where an application is made by one, claiming to be clerk of a town in Hampden county, for a mandamus to a former clerk, the rulj to show cause why it should l.ot issue may be granted to be heard in any county, but the writ must be returnable in Hampden. Taylor v. Henry, (2 P.) 19 397. The rule to show cause need not have a teste, or be under seal. Taylor v. Henry, (2 P.) 19 397. MANDAMUS, II— MASTEE AND SEEVANT. 989' 37. Notice of a petition for a mandamus, to admit the petitioner to an office, must be given to the incumbent, before the court will hear the application. Mx parte Strong, (20 P.) 37 484. 38. Where an alternative mandamus is issued to a town treasurer, to issue a warrant of dis- tress against a delinquent collector of taxes, it is not necessary to make the collector a party, or to give him notice. Waldron v. Lee, (5 P.) 22 . 323. 39. An alternative mandamus having been issued to a city clerk, requiring him not to re- record the vote of a ward, the court refused a peremptory mandamus, on the ground that the mayor and aldermen should have been parties. Taylor v. McPheters, 111 351. 40. Where an act of a city council requires the approval of the mayor, a mandamus to com- pel performance of the act, must mn against the mayor and the council. Farnsworth v. Boston, 121 173. 41. But where the act is to be done by the board of aldermen, and the mayor's signature is a mere ministerial act, and the aldermen have acted, the signing by the mayor may be enforced' by mandamus to him only. Braconier ». Packard, 136 50. See, however, Deehan v. Johnson, 141 23. 42. Upon an application by a widow for a mandamus, to compel county commissioners to pay her damages awarded to her husband, for taking her land for a highway, in ignorance that ue was deceased, the court directed notice of the application to be given to his adminis- trator. Kent v. Essex Com'rs, (10 P.) 27 581. 43. If, after a return to an alternative man- damus to a tribunal created by statute, the statute is repealed without a saving clause, a peremptory mandamus will not be granted. Springfield v. Hampden Com'rs, (6 P.) 23 501. 44. If, upon the return of an alternative mandamus, to compel a town treasurer to issue a warrant against a delinquent town collector, it ap; ears that the tax was unlawful, the per- emptory writ will be refused. Waldron «. Lee, (5 P.) 22 323. '45. A return, which contains a full and certain answer to all the averments of the petition, and a lawful reason for disobeying the alternative mandamus, suffices; and the return may be amended, even after exceptions are filed. Springfield v. Hampden Com'rs, (10 P.) 27 59. 46. At common law, the return to a mandamus could not be traversed, and the only remedy of the petitioner who wished to falsify the return, was by action; and before the practice act, such was the rule here. Lunt v. Davison, 104 498. See, also, Howard v. Gage, 6 462; Deehan v. Johnson, 141 23. Manslaughter. [See Cabbieb, XV. (2); Homicide.] Manufacturing company. [See Corporation; Joint Stock Association.] Manure. [See Executor, art., 515: Fixture, arts. 14, 16, 38,. 39; .Landlord, etc., art. 133; Mill , art 147.] Marine insurance. [See Insurance, V.] Market. [See Town and City, II, (5); IV, (1).] Market overt. [See Sale, art. 11.] Marriage. [See Husband and Wife, I.] Marriage, breach of promise of. [See Promise to Marry.] Marriage settlement. [See Husband and Wife, V; Statute of Frauds, II, (3).] Married woman. [See Husband and Wife.] Marsh. [See Meadow.] o Marshalling of assets and legacies. [Pee Devise and Bequest, II, (2); IV; Executor, and Administrator, Vi; VII, (1).] Massachusetts Medical Society. [See Injunction . arts. 10.11; Libel and Slander, art. 101; Mandamus, art 17.] Master and servant. I. The Relation. (1.) When it exists, and when it does not exist. (2.) Termination; when notice is required. 990 MASTEE AND SEEVANT, I, (1). II. Master's Liability for an Injury to Person ok 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. III. Servant's Liability; Joint Liability of Master and Servant. IV. Third Person's Liability to the Master. [For rulings relating to sales of liquors by a ser- vant, see Intoxicating Liquors, II, (3); III, (3); IV, (2); V, (1); V,(4). as to the statute against intimidat- ing a servant from continuing in his master's em- ployment, see Indictment, IV, (4) ; VIII, (46). As to the statute regulating the hours of work in manufactories, see Indictment,. VIII, (55). Gene- rally, for cases additional and analogous to those hereinafter cited, see Agency; Apprentice; As- sault; assumpsit, III, (4); Carrier, II, (3); Con- spiracy, II; Contract; Corporation, IV; High- way, I, (4); Negligence; Nuisance; Parent and Child; Railroad, IV; Seduction; Town and City, III; V.] I. The Eelation. (1.) When It exists, and when it does not exist. [See, also, po-t, II, (2); II, (3).] 1. A religious society, which has made a con- tract with A to paint its church, and has agreed to erect a scaffolding for that purpose, and has employed B to erect the scaffolding, is liable to C, a painter employed by A, for an injury caused by the dangerous condition of the scaffolding, on the ground that it had accepted and used the scaffolding, and had invited A and his servants to occupy it. Mulchey ». Methodist Bel. Soc, 125 481 See, also, Elliott v. Pray, (10 A.) 92 378; Gilbert v. Nagle, 118 278; Gorham v. Gross, 125 233. 2. In the case stated, is not the servant of the society, and its liability to him is not governed by the rules applicable between master and servant, as he was not employed, controlled, or paid by it. Mulchey v. Methodist Rel. Soc, 125 487. See, also, Johnson v. Boston, 118 114. 3. Nor would the society have been liable for an injury occasioned by the negligence of B or his servants, in the course of building the scaffolding, and before its completion. Mulchey v. Methodist Rel. Soc, 125 ■487. See, also, Stone v. Codman, (15 P.) 32 297; Lowell v. Boston & L. Railroad, (23 P.) 40 24; Earle v. Hall, (2 Met.) 43 353; Hilliard v. Richardson, (3 G.) 69 349; Lintm v. Smith, (8 G.) 74 147; Forsyth v. Hooper, (11 A.) 93 419; "Wendell v. Pratt, (12 A.) 94 464; Conners «. Hennessey, 112 96; Gorham ». Gross, 125 232. 4. Where the plaintiff was a machinist, em- ployed by W, a builder of steam engines; and the defendant, who was a teamster, employed by W to transport a steam engine to the rail- road station, and engaged in doing so with his truck and servants, falsely represented to the defendant that W had agreed to send two of his men to aid him; whereby the plaintiff was induced to aid him, and in so doing received an injury; it was held that there was no contract of service between the defendant at.d the plain- tiff, and the latter could not recover. Kelly v. Johnson, 128 530. See, also, "Wood v. Cobb, (13 A.) 95 58. 5. A public officer, elected in a city or town, or appointed by the authorities thereof, pursu- ant to a statute, to perform duties prescribed by the statute, of a public character, and not for the benefit of the city or town in its corporate capacity, is not either the servant or agent of the city or town. Hafford v. New Bedford, (16 G.) 82 297; "Walcott i>. Swampscott, (1 A.) 83 101; Dunbar v. Boston, 112 75; Alger v. Easton, 119 77. See, also, Buttrick v Lowell, (1 A.) 83 172; Kimball v. Boston, (1 A.) 83 417; Rossire B.Boston, (4 A.) 86 57; Griggs v. Foote, (4 A.) 86 195; New Bedford v. Taunton, (9 A.) 91 207; Barney ». Lowell, 98 570; McCarthy ». Boston, 135 197; Sullivan v. Holyoke, 135 273. 6. One, employed and paid by a person who, has contracted with a town to keep its lamps lighted, is not the servant of the town, and may recover for an injury received in his work from a defect in the highway. Eaton v. "Woburn, 127 270. 7. A pilot, while he has charge of a vessel, although he holds a commission under public authority, is the servant of the owner who em- ploys him. Yates v. Brown, (8 P.) 25 23. 8. "Where a vessel is being towed by a steam- tug, the master and crew of the latter are not the servants of the owners of the former. Sproul». Hemmingway, (14 P.) 31 1. 9. A stevedore, employed in port to unload a vessel for a gross sum, is not the servant of the owners. Linton v. Smith, (8 G.) 74 147; Pin- gree v. Leyland, 135 398. 10. Whether one in charge of a horse, with the owner's assent, and engaged on his business, but in the general employment of a third per- son, is the servant of the former or of the latter, depends upon the question, whether the relation of the latter to the business was such, as to give him exclusive control and direction; and upon that question the jury are to pass. Kimball v, Cushman, 103 194. See, also, Preston v. Knight, 120 5. 11. For rulings in other peculiar cases, upon the question, whether the relation of master and servant existed between owner or employer, and the servant of a contractor or employee, Forsyth v. Hooper, (11 A.) 93 419; Curley v. Harris, (11 A.) 93 112; Wood v. Cobb, (13 A.) 95 58; Coomes v. Houghton, 102 211; Brooks v. Somer- ville, 106 271; Clapp v. Kemp, 122 481; Huff B.Ford, 126 24. 12. It was held that one, employed in work- ing out his highway tax, under the superin- MASTER AND SERVANT, I, (1), (2). 991 tendence of the surveyor of highways, was the latter's servant. Elder v. Bemis, (2 Met.) 43 599 13. Undei' a peculiar contract, it was held that one, running a mill for another, was the latter's lessee, and not his servant. Fiske v. Framingharn M. Co., (14 P.) 31 491. 14. A carpenter, employed by the lessee of a huilding to repair an awning extending over the sidewalk, without specification as to price or time, is the latter's servant. Brackett e. Lubke, (4 A.) 86 138. 15. One, employed by a railroad company, in connecting the cars of that company ancl an- other company, under a contract between them for their mutual benefit, is so far the servant of the latter company, that a passenger in its car may recover for damages resulting from an in- jury from his negligence, while connecting that car with those of the former company. White v. Fitchburg Railroad, 136 (2.) Termination; when notice Is re- quired. [See, also, Assumpsit, III, (4.)] 16. Where the plaintiff was employed for one year as superintendent of the defendant's works, at a fixed salary, and also, a commission upon all sales, made by him or agents appointed by him, and was wrongfully discharged before the expiration of the year; it was held that the jury, in estimating the damages, might consider the commissions on all sales during the year, although the action was brought before the year had expired. Blair v. Laflin, 127 518. See, also, Revere v. Boston Copper Co., (15 P.) 32 351; Dennis i>. Maxfield, (10 A.) 92 138. 17. In such a case, evidence that the plaintiff, in order to procure his employment, falsely represented that he was " a first rate salesman " is immaterial, in the absence of evidence of the affirmation of a specific lact, or of a usage, giving to those words a precise and definite meaning. Blair v. Laflin, 127 ^518. See, also, Greene v. Washburn, (7 A.)\ 89 390. 18. In an action for discharging the plaintiff, before the expiration of the time, for which a contract for service as a salesman was made, evidence of the reason for discharging the plaintiff is immaterial; the question is, whether the defendant had a justifiable cause for so doing; and that is for the jury. Greene v. Washburn, (7 A.) 89 390. 19. In such a case, evidence that the plaintiff sold less goods than the other salesmen is in- competent. Greene «. Washburn, (7 A.) 89 390. 20. For a ruling, that a usage to give a certi- ficate of honorable discharge to an operative in a mill, does not render it obligatory upon the employer to give such a certificate, see Thornton e. Suffolk M. Co. , (10 C.) 64 376. 21. A hiring for personal service, for which payment is made quarterly, is not necessarily a hiring by the quarter, or terminable by a quar- ter's notice. Tatterson ». Suffolk M. Co., 106 56. 22. When A and B agreed orally upon a con- tract for a year's services by B, and B, after serving for tue year, began a second year with- out a new bargain; it was held that the original contract was competent evidence of the terms of an implied new contract, and the statute of frauds did not bar the action. Tatterson v. Suffolk Mf Co^, 106 56. 23. If the terms of a contract ofohiring re- quire, that a written notice must be given by the servant before leaving, failing which, he is not entitled to the wages^due him on the next pay day, and the servant leaves without , notice, he cannot recover any of the wages then unpaid, although there is no corresponding provision that he shall not be discharged without notice. Preston «. American Linen Co., 119 400. See, also, Noon ». Salisbury Mills, (3 A.) 85 340; Hughes v. Wamsutta Mills, (11 A.) 93 201; Potter «. Cain, 117 238. 24. Where such a provision was not expressly made, in a contract of hiring in a mill, but was printed on an envelope, in which the plaintiff regularly received his pay for a long time, the question, whether, he assented to it, is for the jury- Preston v. American Linen Co., 119 400. 25. Where such a provision is contained in a printed notice, hung up in the shop, the ques- tion, whether the workman assented to it, is one of fact, not of law. CoUins v. N. E. Iron Co., 115 23. 26. Where the contract contains such a pro- vision, and the servant leaves his work without notice, and remains absent so long as to war- rant the master in supposing that he has aban- doned his work, and the latter employs another accordingly in his place; the servant cannot recover, although he intended to be absent only temporarily. Naylor «. Fall R. I. Works, 118 317. See, also, Partington v. Wamsutta Mills, HO 467. 27. But if the servant is kept away by sick- ness^ he may recover for the work that he has done, if he is ready to return when he is able. Fuller v. Brown, (11 Met.) 52 440; Harrington v. Fall R. I. Works, 119 82. 28. Qu., whether, in such a case, he is not required to give reasonable notice to his master of his sickness. Harrington v. Fall R. I. Works, 1 19 82. 29. Where the contract expressly requires notice of his sickness, the servant cannot re- cover, if he failed to give such notice, being able so to do. Noon®. Salisbury Mills, (3 A.) 85 340. 30. An arrest, conviction, and imprisonment for a crime, will exonerate the servant from giving notice of his intention to leave, where the contract so requires. Hughes v. Wamsutta Mills, (11 A.) 93 201. 992 MASTER AND SERVANT, II, (1). 31. Mere knowledge of a regulation of the employer, that notice shall be given before leaving, does not bind the servant, unless he assented to it. Hunt v. Otis Co., (4 Met.) 45 464. 32. Nor does a custom of the trade to that effect bind Ihe. servant, unless, he knew of it; and qu. , whether his assent is not" required. Stevens v. Reeves, (9 P.) 26 198; Collins v. N. E. Iron Co., 115 23. II. Master's Liability for an Injury to Persons or Property. (1.) To the servant, for a personal in- jury from the work. ISee St, 1883, Cta. 243. as to a railroad company's lia- bility for an employee's death.] 33. The general rule of law is, that a servant takes upon himself the risk of the damages which ordinarily attend, or are incident to, ihe business in which he voluntaiily engages. Yeaton ». Boston & L. Railroad Co., 135 418. See, also, Coombs v. New Bedford C. Co., 102 572; Huddleston v. Lowell M. Shop, 106 282; Sullivan v. India M. Co., 113 396; Ladd