,1 Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARI^AN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS c^ 4 'j^^^^ >-' 3 1924 072 433 828 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/cu31924072433828 MASSACHUSETTS DIGEST A DIGEST OF THE REPORTED DECISIONS OF THE SUPREME JUDICIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS PEOM 1879 TO 1887 CONTAINED IN Mass. Repoets (128 to 144 inclusive) BY WILLIAM V. KELLEl^T SUPPLEMENT BOSTON LITTLE, BROWN, AND COMPANY 1887 Copyright, 1887, Bt Littm, Beown, and Company. Univbksitt Pebss: John Wilson and Son, Cambridge. TO JOHN LATHROP, Esq., Repokter op Decisions of the Scpkeme Jddicial Coukt, TO whose unvarying diligence, keenness of legal insight, and accurate LEARNING, THE BENCH AND BAR OF MASSACHUSETTS OWE SO MUCH, THIS VOLUME IS DEDICATED BY HIS FKIEND AND FORMER ASSISTANT. PREFACE. This Supplement to the Massachusetts Digest embodies the decisions contained in Volumes 128 to 144 Mass. Eeports, inclusive, and brings the work down to date. The material collated by C. F. Williams, Esq., in the earlier Supplement has been used in this. The analysis of topics and the arrangement and form of the sub-titles adopted in the Digest have been followed ; all the topics being subdivided where the number of placita seemed to require such treatment. The cross-references have been reduced in number as much as practicable by the repetition of subject-matter under different heads, to the convenience, it is hoped, of the profession. W. V. K. Boston, October, 1887. MASSACHUSETTS DIGEST. SUPPLEMENT. A. ABANDONMENT. Of Attachment, see Attachment, III. Of Easement, see Easement. Of Vessel, see Insurance, V. ABATEMENT. 1. Misdescription of the plaintifE's resi- dence cannot be availed of by the defendant, unless pleaded in abatement. Day v. Floyd, 130 Mass. 488 (1881).. 2. Even if an action against a town for an injury caused by a defect in a highway, which is required by St. 1877, c. 234, § 5, to be brought in the county wherein the town is situated, is a local action, it is discretionary with the court, under Gen. Sts. c. 129, § 70, and 0. 133, § 14, to refuse to dismiss it when brought in the wrong county, the defendant having appeared and answered, and the cause having twice been tried before the filing of a plea to the jurisdiction. Osgood v. Lynn, 130 Mass. 335 (1881). See St. 1880, c. 251. So as to an action brought under Gen. Sts. c. 85, § 1, to recover treble the amount of money lost by gaming, the defendant having appeared and answered to the merits. Morris V. Farrington, 133 Mass. 466 (1882). 3. The provision of St. 1874, e. 271, § 11, relating to the municipal courts of Boston, that, " upon pleas in abatement, or motions to dismiss for defect of form in process, the decisions of said courts shall be final," ap- plies to decisions upon questions of law only. O'Loughlin v. Bird, 128 Mass. 600 (1880). 4. If, in a municipal court in which no trial by jury can be had, an issue of fact is joined upon a plea in abatement, and judgment ren- dered for the plaintiff, and the defendant ap- peals to the Superior Court, he is entitled to a trial by jury in' that court upon the same is- sue, but upon that issue only, unless the supe- rior court orders or permits him to plead anew. O'Loughlin v. Bird, 128 Mass. 600 (1880). SUPPLEMKHT. — 1 5. A mortgagor of land who has consented, without consideration, that the mortgagee might bring an action at law against one who, by the terms of a deed from the mortgagor, is bound to pay the mortgage, may withdraw his consent, and compel the dismissal of the action. Coffinv. Adams, 131 Mass. 133 (1881). 6. When an action is brought in the name of one person for the benefit of another, tes- timony of the nominal plaintiff that the ac- tion was brought without his authority and against his will or consent, and that he did not want it prosecuted, will not necessarily entitle the defendant to a verdict, the nominal plaintiff not ofiering to release the cause of action, nor asking to be indemnified, and it not appearing that the party entitled to the beneficial results of the suit has not the right to use the name of the nominal plaintiff. Fay V. Guynon, 131 Mass. 31 (1881). 7. If a defendant answers in abatement and to the merits of the action in due time and in the proper order, the fact that both answers are filed together and upon the same paper does not operate as a waiver of the answer in abatement. This mode of plead- ing is sanctioned by a usage of more than a century; the remarks in Pratt v. Sanger, 4 Gray, 84, 88, in Morion v. Sweetser, 12 Allen, 134, 137, and in Machinists' Bank v. Dean, 124 Mass. 81, 83, so far as they tend to dis- countenance it, ai'e obiter dicta, and are unsup- ported by the authorities there referred to. Gray, C. J., in O'Loughlin v. Bird, 128 Mass. 600 (1880). 8. A formal defect in a declaration, which might have been cured by an amendment, is waived, if first objected to at the trial in the Superior Court, a lull hearing having been had before an auditor. Bdslon ^Albany Railroad V. Pearson, 128 Mass. 445 (1880). 9. If the defendant files a declaration in set-off, appeals from a judgment against him, and enters into a recognizance to prosecute his appeal, the filing by the plaintiff, after the entry of the appeal, of an answer to the declaration in set-off, is a waiver of any defect in the form of the recognizance. Norris v. Munroe, 128 Mass. 386 (1880). ACCESSORY AND ACCOMPLICE. 10. If a transitot7 action is brought by a foreign corporation against several defendants, in a coanty where only one of the defendants resides, and the action is fully tried on its merits, ■without objection being taken to the venue, the plaintifi, if he subsequently dis- continues against such defendant, is entitled, on a new trial being granted, to prosecute the action against the other defendants in the same county. Merchants^ Ins. Co. v. Abbott, 131 Mass. 397 (1881). 11. If two parties to a written contract, whose liability is several, are joined as de- fendants in one action thereon, under Gen. Sts. c. 129, § 4, and one of them dies, his ex- ecutor may be summoned in to defend. Colt V. Learned, 133 Mass. 409 (1882). Of Abatement in Equity, see Equity Pleading and Pkacticb. Of Abatement of Nuisances, see Equity ; Nuisance. See also Case Stated; roRCiBLE Entey AND Detainer ; Indictment; Lis Pendens; Pleading; Record; Writ. ABDUCTION; ENTICEMENT; KIDNAP- PING. ABORTION. .1. It is not necessary to the maintenance qf an indictment under Gen. Sts. c. 165, § 9, for an attempt to procure the miscarriage of a woman, that she should be pregnant with child. Commonwealth r. Taylor, 132 Mass. 261 (1882). 2. Upon the trial of an indictment for attempting to procure a miscarriage, — Held, that exclamations, indicating present pain and weakness uttered by the woman immediately after leaving the house where the operation was claimed to have been performed upon her, were admissible in evidence in connection with other evidence tending to show that the operation was then and there performed. Commonwealth v. Fenno, 134 Mass. 217 (1883). 3. At the trial of an indictment for an at- tempt to procure the miscarriage of a woman, whereby she died, the defendant offered to prove that, shortly before the commission of the alleged offence, the woman told the wit- ness that she was pregnant by a person other than the defendant, and that if this person did not perform an operation to procure a miscarriage, or get some one else to do so, she should perform the operation on herself. The declarations neither accompanied nor were explanatory of any act then done by her. Held, that the evidence was hearsay, and not within any of the recognized exceptions to the rule making hearsay evidence incompe- tent. Commonwealth v. Feloh, 132 Mass. 22 (1882). 4. An indictment for abortion alleged that the act was committed on the 7th of a certain month. The principal witness for the govern- ment testified that the act was committed on the day alleged, and that the woman died on the next day; and gave a ch'cumstantial ac- count of all that took place between the com- mission of the act and the death. Several witnesses, including the medical attendant, testified that the death occm-red on the 9th of the month. The defendant put in evidence tending to prove that he was out of the State during the whole of the 7th. Held, that the attorney for the government was properly allowed to argue to the jury that the act was committed on a dav other than the 7th. Com- monwealth V. Baldinn, 129 Mass. 481 (1880). 5. An indictment alleged that the defend- ant, at a time and place named, unlawfully used a certain instrument, which instrument he "in his hands then and there had and held, by then and there forcing and thrusting the instrument aforesaid into the body and womb of a certain woman" named, "with intent then and there to cause and procure the miscarriage of" the woman. Held, on demurrer, that the indictment sufficiently de- scribed the offence set forth in the Pub. Sts. c. 207, § 9. Commonwealth v. Corkin, 136 Mass. 429 (1884). 6, At the trial of an indictment for unlaw- fully using a certain instrument, with intent to cause the miscaiTiage of a woman, evi- dence that, in addition to using the instru- ment, the defendant also administered other unlawful treatment for the same purpose, and evidence that he used the same treatment on the same woman upon two other occasions than that named in the indictment, and but a few days previously thereto, is competent to show his intent and his knowledge of the pregnant condition of the woman. Common- wealth V, Corkin, 136 Mass. 429 (1884). ABUSE OF FEMALE CHILD. See Assault ; Eafe. ACCESSION. See Confusion. ACCESSORY AND ACCOMPLICE. 1. On an indictment against an accessory before the fact of murder, the omission in the indictment to state the legal effect of the facts particularly set forth against the principal, to define the part of the body on which the mortal wound was inflicted, and to allege the Elace at which the defendant was an accessory efore the fact, are all formal objections not affecting the jurisdiction of the court, and cannot, therefore, be raised by motion in ar- rest of judgment, after a plea of guilty. See ACTION, I. 6 St. 1864, c. 250. Commonwealth v. Chiovaro, 129 Mass. 489 (1880). 2. At the trial of a criminal case, an accom- plice, who was a witness for the government, testified to the guilt of himself and of the de- fendant; and, on cross-examination, also tes- tified that he made a confession of' his guilt to the ofiicer who arrested him; that such confession was induced by promises, on the part of the officer, of protection and favor; and that the confession was true. Held, that the government might show, by the testimony of the officer, that the confession was volun- tary. Commonwealth v. Ackert, 133 Mass. 402 (1882). 3. If goods are stolen in one county and brought into another where an indictment is found, the testimony of an accomplice in re- gard to the original taking, and to acts done in respect to the stolen goods in the county where the indictment is found, is corroborated by testimony of other persons which relates merely to the original taking. Commonwealth v. Hayes, 140 Mass. 366 (1886). 4. In a criminal case, the testimony of a witness was admitted, without objection, as corroborating the testimony of an accomplice of the defendant. The defendant requested the judge presiding at the trial to instruct the jury that the testimony of the accomplice should be corroborated in some material fact. The judge gave this instruction. The defend- ant further asked the judge to rule that the evidence of the other witness afforded no such corroboration, but, on the contrary, was con- tradictory and conflicting, and, if the jury found it to be so, it was their duty to acquit. The judge refused so to rule. Held, that the defendant had no ground of exception. Com- monwealth V. Lynes, 142 Mass. 577 (1886). ACCIDENT INSURANCE. See Inscrakce, IV. ACCORD AND SATISFACTION. 1. The payment of a sura of money less than the amount of a debt wiU not, as a matter of law, operate as a discharge, unless received in accord and satisfaction of a dis- puted claim. Grinnell v. Spink, 128 Mass. 25 (1879). _ 2. Part payment of a debt, after its matu- rity, is not a sufficient consideration for a dis- charge, not under seal, of the remainder; it has no effect as an accord and satisfaction, and rests upon no legal or valid consideration. Lathrop v. Page, 129 Mass. 19 (1880). 3. In an action upon an account annexed, the defence of accord and satisfaction is not open under an answer containing a general denial, and alleging payment. Grinnell v. Spink, 128 Mass. 25 (1879). 4. A. and B. bought a quantity of goods in their own names, giving a promissory note therefor, signed by each. They then sold the goods to a corporation, making no reservation of any separate interest in either vendor. A. , on behalf of himself and B., settled with the corporation for the amount due, receiving iu full payment of their debt in part money and in part shares of stock in the corporation, and gave the corporation a receipted bill for the Erice of the goods and interest. B. then rought an action, joining A. as plaintiff, against the corporation, to recover his propor- tion of the original debt. Held, that the settlement made by A. with the corporation released the latter from further liability to A. and B.; and that the action could not be maintained. Osborn v. Martha's Vineyard Railroad, 140 Mass. 549 (1886). ACCOUNT. For Account in Equity, see Equity. For Account Stated and Account Annexed, see Assumpsit. See also Partnership; Pleading; Pro- bate Court; Limitations op Actions; Ship. ACTION. I. Where a Right op Action exists, "^ AND where not. (a) Where Right exists. (6) Where not. (c) When there is another Remedy. II. Commencement and Entry op Ac- tions. III. Actions which do or do not sur- vive. IV. Actions, Local or Transitory. Of Actions by and against Municipal Corpo- rations, see Town ; Way. Of Actions for Negligence against Carriers, Railroadg, &o., see leading titles respect- ively. Of Actions of Contract in the Nature of Assumpsit, Tort in the Nature of Trover, Replevin, Real Actions, &c., see those and similar titles, respectively. Of Parties to Actions, see Parties to Ac- tions. I. Where a Right of Action exists, AND where not. (a) Where Right exists. 1. If a religious society gives notice of a meeting to be held at its house of worship, and invites the members of other societies to attend, a member of a church so invited, while on the land of the society, is not a mere licensee, and may maintain an action against ACTION, I. 8 the society for a personal injury sustained, while in the exercise of due care, from the dangerous condition of the defendant's prem- ises. Davis -v. Central Congregational Society, 129 Mass. 367 (1880). 2. If an incorporated benevolent society, •whose by-laws provide for the payment of a ■weekly allowance to a sick member, upon the performance of certain conditions by him, re- fuses to fulfil its contract, the member in- jured thereby may maintain an action at law against it, if the by-laws of the society make no provision for a tribunal to decide ques- tions arising between the society and its members. Dolan v. Court Good Samaritan, 128 Mass. 437 (1880). 3. If the act of a dog is the'sole and proxi- mate cause of the shying of a horse, and such shying is not the result of any vicious habit of the horse, the fact that the shying contrib- uted to the plaintiff's injury does not pre- vent him from maintaining an action against the owner of the dog under Gen. Sts. c. 88, § 59. Denison v. Lincoln, 131 Mass. 236 (1881). 4. A steamboat, on which were goods in- sured against " immediate loss by fire," came into collision with another steamboat. Afire caused by the collision at once broke out, and the vessel soon sank, with the goods, before they were touched by the fire. Held, that, if the loss of the goods could have been avoided but for the intervention of the fire, the fire was the immediate cause of the loss, and an action on the policy could be maintained. New York Express Co. v. Traders' Ins. Co., 132 Mass. 377 (1882). For other cases of proximate cause, see Negligence ; Way. 5. A mortgagor, who had conveyed his equity of redemption, but who remained per- sonally liable upon the mortgage note, was compelled to pay the balance remaining, after the proceeds of a sale by the mortgagee under the power had been applied thereupon. Held, that he could maintain an action against the mortgagee for so misconducting the sale as to cause it to produce a less amount than might have been obtained. Fenlon v. Torrey, 133 Mass. 138 (1882). 6. Under the St. of 1872, c. 260, § 5, pro- viding that the openings of any hoistway, ele- vator, or well-hole in any building in a certain city shall be protected by a railing and trap- doors, a police officer who enters a build- ing, the doors of which are found open in the night-time, for the purpose of inspecting the premises, in accordance with a rule of the police commissioners, and falls down an un- guarded elevator well, may maintain an ac- tion against the owner or occupant of the building for injuries sustained thereby, al- though the statute also imposes a penalty for a violation of its provisions. Parker v. Bar- nard, 135 Mass. 116 (1883). 7. A person who excavates on his land in such a manner as to let in the sea, which un- dermines and injures adjoining land of an- other, is liable to an action by the latter for the injuries so caused, including injury done to a well by the percolation of salt water. Mears v. Dole, 135 Mass. 508 (1883). 8. An attorney of one party to an action re- ferred, under a rule of court, to arbitration, is liable to an action by the other party for con- spiring with one of the arbitrators to obtain an unjust award in favor of his client, which is obtained, and upon which judgment is en- tered, although such judgment remains unre- versed. Huosac Tunnel Dock Co. v. O'Brien, 137 Mass. 424 (1884). 9. In an action for personal injuries occa- sioned to the plaintiff's intestate by the fall of a mill, there was evidence that the intestate was last seen alive in the mill ten or fifteen minutes before the accident; that, three quar- ters of an hour after the accident, his dead body was found about twenty feet below where he had been last seen, with no mark of injury upon it, surrounded by loose grain, and with five or six feet of grain over his head. There was also expert evidence that he died from suffocation, and that a person situated as he was would retain consciousness from three to five minutes. Held, that the jury would be warranted in finding that the death was not instantaneous. Nourse v. Packard, 138 Mass. 307 (1885). 10. A person went to A.'s hotel, and regis- tered his name as B. He then took to C. goods, of which he represented himself to be the owner, to be sold by C. for him, giving his name as B. C, believing him to be one B., concerning whom he made inquiries and re- ceived by telegraph a favorable answer as to his trustworthiness, sold the goods for him, and gave him, in payment therefor, a bank check payable to the order of B. He indorsed the check in blank with the name of B., and, upon leaving A.'s hotel, where he had been staying in the mean time under the name of B., gave the check to A. in payment of his board bill, and received the balance of its amount in money from A. B. was not his true name; and C., upon discovering that he had stolen the goods which he left with him, directed the bank upon which the check was drawn not to pay it. Held, that A. could re- cover the amount of the check in an action against C. Robertson v. Coleman, 141 Mass. 231 (1886). 11. If a promissory note is void, because given by a debtor to his creditor to induce the latter to sign an agreement of compromise, which is signed by other creditors in igno- rance of the giving of the note, and which becomes ineffectual by reason of its condition being unperformed, and the note is avoided by the debtor on the ground of its fraudulent character, the creditor may maintain an ac- tion against the debtor for the original debt. Walker v. Mayo, 143 Mass. 42 (1886). 12. A writ of replevin in favor of A. was placed for service in the hands of a constable, who opened a storehouse and took the goods described in the writ. The officer was accom- panied by B. as A.'s agent, who had the mort- gage under which A. claimed the goods which were to be replevied, and discovered that the description in it covered property not men- 9 ACTION, I. 1» tioned in the writ. B. also found in the store, mingled with the goods to be replevied, nu- merous other articles which he believed to be, and told the officer were, the same covered by the mortgage. Upon his statement and rep- resentation that the mortgage covered all the goods in the store, the officer allowed B. to remove said other property, as he claimed a right to do. A. received the property so re- moved, and ratified the acts of B. in relation thereto. C, the owner of the goods so taken, brought an action against the officer for allow- ing them to be taken, and recovered judgment, which was satisfied by the officer. Held, that the parties were not in pari delicto ; and that the officer could maintain an action against A. for the amount of the judgment so paid by him. Williams v. Mercer, 144 Mass. 413 (1887). 13. The owner of a building under his own control and in his own occupation is liable for an injury caused to a traveller on the highway by tlie falling of a piece of zinc from the roof of the building, which has been repaired under an entire contract, by the terms of which the contractor was to furnish all the labor and materials therefor, if the contractor has com- pleted his contract and ceased to work there- under. Khron v. Brock, 144 Mass. 516 (1887). (b) Where not. 1. A surveyor of highways, who enters upon private land and removes an accumulation of ice and snow in a watercourse thereon, which has caused the water to ovei'flow and obstruct the highway, is not liable to an action by the owner of the land for injury done to his lower land by reason of the water overfowing the same and washing away the soil, if the acts of the surveyor were the necessary means for the removal of the nuisance, and he acted with due regard to the safety and protection of the land from needless injury. Johnson v. Dunn, 134 Mass. 522 (1883). 2. The intentional non-entry of an action upon a writ in which property has been at- tached-, and the bringing of a new action for the same cause of action, and attaching the same and other property, do not constitute a legal cause of action. Johnson v. Reed, 136 Mass. 421 (1884). 3. If A. borrows money for B., the pay- ment of which is secured to the lender by a transfer of stock furnished by B., to whom the money so borrowed is paid by A. , this does not constitute a loan by A. to B., to recover which A. can maintain an action against B., before A. has repaid the money which he bor- rowed, or has sustained some loss. Reeve v. Bennett, 137 Mass. 315 (1884) . 4. The treasurer of a savings bank took certificates of stock belonging to the savings bank, had them transferred to a national bank, and new certificates issued to such bank, and, on the pledge of the new certificates, bor- rowed a sum of money in the name of the savings bank. The debt not being paid, the national bank sold the shares of stock under a power given by the treasurer of the savings bank in its name. Held, that, whether the treasurer of the savings bank had authority or not to make the transfers of the stock, the receivers of the savings bank could not main- tain an action of contract against the national bank to recover the proceeds of the shares sold by it. Holden v. Metropolitan National Bank, 138 Mass. 48 (1884). 5. If a creditor executes with his debtor a composition deed, which purports to treat all the creditors equally, and receives the amount provided for therein in full satisfaction and payment of his account, the debtor having given him a promissory not« for the balance of his account in consideration and upon the secret agreement that he would sign the com- position deed, he cannot maintain an action against the debtor for the original debt, less the amount he has received. Huckins v. Hunt, 138 Mass. 366 (1885). 6. The mortgagee of a parcel of land took another mortgage covering the same parcel and also another parcel, on which last parcel there was no prior mortgage. Afterwards H., for a good consideration, promised in writing to pay the promissory note secured by the second mortgage, with a provision that the mortgagee should then assign said mortgage and note to him. The mortgagee gave notice of a sale, under a power in the second mort- gage, stating that it would be subject to the prior mortgage ; and both parcels were of- fered, and sold free from incumbrances for an entire price, and conveyed to the purchaser ■accordingly, without the assent of H. Held, that the mortgagee could not maintain an ac- tion against H. on his agreement to pay the mortgage note. Union Institution for Savings V. Hill, 139 Mass. 47 (1885). 7. A constable, in serving a replevin writ for a mortgagee of personal property, permit- ted the mortgagee's agent to remove certain articles not named in the writ, upon the agent's representation that they were included in the mortgage. The mortgagor recovered judgment against the constable for such re- moval. Without paying the judgment, the constable brought an action against the mort- gagee founded upon an alleged implied prom- ise of indemnity. Held, that the action could not be maintained. Williayns v. Mercer, 139 Mass. 141 (1885). 8. B. bought with the money of A. a parcel of land, and took a deed of it in his own name. He then made a declaration of trust, setting forth that he held it for A.'s benefit; and afterwards conveyed it, without A.'s knowledge, to A.'s wife. Held, that A. could not maintain an action at law against B. for a breach of the trust, but that his remedy was in equity. Norton v. Ray, 139 Mass. 230 two persons enter into an oral contract, by the terms of which one agrees to seU, and the other agrees to buy, certain goods at stipu- lated prices during a specified time, and, after a part of the goods have been delivered and paid for according to the contract, the seller refuses to deliver the rest of the goods ordered, or to fill future orders under the contract, un- 11 ACTION, I. 12 less the buyer will agree to pay a highei" price than that named in the contract, and the buyer consents to pay and pays the advanced price upon receipt of the goods, he cannot maintain an action against the seller for breach of the original contract. Rogers v. Rogers §• Brother, 139 Mass. 440 (1885). 10. A. was surety on three promissory notes made by B., in which C. was beneficially in- terested. An action had been begun upon them, and, B. having gone into bankruptcy, they had been proved against his estate. A., after some negotiation with C. about a com- promise and settlement of his liability, paid a sum, which was much less than the amount of the notes, and received back an agreement, by which C. as principal, and the other owner and the holder of the notes as sureties, agreed to indemnify and save harmless A. from the notes, and from any judgment upon the same. The agreement continued as follows: "It is expressly agreed that said sum paid by A. is not in part payment of said notes, or either of them, and is not to be applied in any manner to diminish or affect said notes, or the liabil- ity of said principal or sureties, but the same is paid by A. and received by C. as the con- sideration of this indemnity." Subsequently the creditors of B. formed a corporation, and purchased his business by leave of court. A. then brought an action against C, on the ground that the result of that transaction and of his payment had been to give C. enough moi-e than the full amount of his debt to en- able him to reimburse A. to the extent of such payment. Held, that the action could not be maintained. Wilson v. Whitmore, 140 Mass. 469 (1886). 11. Mortgaged land was permanently in- jured by water which escaped from a reser- voir in consequence of the giving way of a dam built by a city under legislative authority. After the mortgagee had brought an action against the city, which denied its liability, the amount of damages to the land was sub- mitted to arbitration, under an agreement that the city should pay two thirds only of the amount found by the arbitrators. The city paid to the mortgagee two thirds of such amount, and received a discharge in full from him. Held, that this settlement, if made in good faith, was a bar to an action by the mortgagor against the city for the damage to the land. James v. Worcester, 141 Mass. 361 (1886). 12. A., being insolvent, gave to B., in pay- ment for a pre-existing debt, his promissory note indorsed by C, to whom A., with B.'s knowledge, gave a mortgage of personal prop- erty not exempt from attachment. B. had reasonable cause to believe A. insolvent, and refused to take his note unless it was indorsed by C, who also refused to indorse the note unless the mortgage was given as security. Proceedings in insolvency were, within four months, begun against A., and his property, including that mortgaged to C, was duly sold by the messenger in insolvency, and the pro- ceeds paid to A.'s assignee. In pursuance of an agreement between B. and C, B. took up the note at its maturity, and C. paid him a certain sum received from A.'s assignee as a compromise of C.'s claim under the mort- gage. This sum was less than the amount of the note, and less than the amount paid by the messenger to the assignee. The assignee, before paying this sum to C, knew that B. refused to take the note unless indorsed by C, and that the mortgage was given to secure C. against his indorsement. Held, that the set- tlement between the assignee and C. was a bar to an action by the assignee against B. to recover the sum paid by C. to B. Stimpson v. Poole, 141 Mass. 502 (1886). 13. If B. sells the property of A. to a third person, he is not responsible to A. for the subsequent wrongful acts of the third person in respect to the property. Jones v. Good- mllie, 143 Mass. 281 (1887). 14. In an action by a child against a corpo- ration for personal injuries sustained by the plaintiff from falling down a precipitous place in a vacant lot where he was playing, the lot being in the rear of the premises where he lived, and separated therefrom by a picket fence with a gate, the only evidence tending to connect the defendant with the lot was that the fence and gate were built by the de- fendant's workmen about five years previously, and that the workmen had a key to the gate. There was no evidence to show that the de- fendant owned, or occupied, or had the care of the lot; or that it had any right to place a fence along the brow of the precipice ; or that, at the time of the accident, it used a road leading through the gate, or left the gate open on the day of the accident ; or that it ever, in any way, induced or invited the plaintiff or other children to come upon the vacant ground to play ; or that it ever did anything more than merely to suffer and permit the use of the lot by children. Held, that the action could not be maintained. GalUgan v. Metacomet Manuf. Co., 143 Mass. 527 (1887). 15. If a writ of replevin in favor of A. is placed for service in the hands of a con- stable, who opens a storehouse and takes the goods described in the writ, and does not pre- vait an agent of A., who accompanies him, from taking away certain goods of B. which are stored there, claiming a right to do so, and B. thereupon brings an action against the officer for allowing B.'s goods to be taken, re- covers judgment, which is satisfied, and then executes a written instrument assigning to the officer B.'s judgment against him, together with any and all claim and right of action B. might have against A. for the goods, and au- thorizing the officer to sue for and recover the same of A. for his own use, B.'s claim is ex- tinguished by the satisfaction of his judgment against the officer, and the officer cannot maintain an action in B.'s name against A. Simpson v. Mercer, 144 Mass. 413 (1887). (c) Where there is another Remedy. 1. Where a statute authorizes a work for public use, and the work is executed in a reasonably proper and skilful manner, any 13 ADMIRALTY. 14 damage necessarily caused to any person by taking his property can be recovered only in the manner pointed out by the statute. Hull V. Westfield, 133 Mass. 433 (1882). 2. A child, who is excluded from a public school in a city by a teacher acting without authority from the school committee, cannot maintain an action against the city under Gen. Sts. c. 41, § 11, without first appealing to the school committee. Davis v. Boston, 133 Mass, 103 (1882). 3. If a grantee, in consideration of the con- veyance of land, agrees to support the grantor during his life, and breaks the contract, the grantor may maintain an action to recover damages for the breach, and is not obliged to declare for the value of the land. Lyman v. Lyman, 133 Mass. 414 (1882). II. Commencement and Entry op Actions. See also Attachment; Practice; Trus- tee Process; Writ. As to what is a Commencement to suspend the running of the Statute of Limitations, see Limitations of Actions. 1. The defendant promised to pay the plain- tiff a certain sum of money, in consideration of a written agreement made by the plaintiff, by the terms of which the plaintifi promised for himself and his associates to convey to the defendant, by assignment or other conveyance, at his option, all the right, title, and interest which the plaintiff and his associates acquired by a certain bond for a deed given by D. to the plaintiff, and all the real and personal property belonging to a certain association ; and which also provided that, " should the title of said parties or the title of said D. prove defective, then this agreement shall be void unless said parties shall make said title good within a reasonable time." The bond from D. to the plaintiff contained this pro- vision: " Said deed to be made at the expira- tion of one year from this date, upon payment to me of " a sum stated. Held, in an action on the defendant's promise, brought before the expiration of one year from the date of the bond, that, if the plaintiff had performed his agreement, and the title of D. was not de- fective, the sum promised became immediately payable by the defendant; and that it could not be said, as matter of law, that the action was prematurely brought. Cram v. Holt, 135 Mass. 46 (1883). 2. In an action by an insurance company against its agent for failure to cancel a policy, as directed, it appeared that, by the terms of the policy, the plaintiff had sixty days after proofs of loss in which to pay the amount due thereunder; that the writ was dated on the same day upon which the proofs of loss on the insured property were made ; and that the loss was paid by the plaintiff before the expi- ration of sixty days therefrom. It was ad- mitted that the loss was fairly adjusted, and that the plaintiff was liable under its policy for the full amount paid by it. Held, that the action was not prematurely brought. Phoenix Ins. Co. V. Frissell, 142 Mass, 513 (1886). III. Actions which do or do not SURVIVE. See also Abatement. 1. If an action for the breach of a promise of marriage will survive against the executor of the promisor, where special damage is al- leged, an allegation of special damage for not executing an antenuptial contract which is within the statute of frauds is not sufficient to bring the case within the rule. Chase v. Filz, 132 Mass. 359 (1882). 2. An action cannot be maintained against a railroad corporation for personal injuries occasioned to a brakeman in its employ, by falling from a moving train, and resulting in death, if the evidence wholly fails to show how he fell, what he was doing at the time, whether his death was instantaneous, or whether he endured any conscious suffer- ing before his death. Corcoran v. Boston Sf Albany Railroad, 133 Mass. 507 (1882). 3. If two parties to a written contract, whose liability is several, are joined as de- fendants in one action thereon, under Gen. Sts. c. 129, § 4, and one of them dies, his executor may be summoned in to defend. Colt V. Learned, 133 Mass. 409 (1882). IV. Actions, Local or Transitory. See also Abatement. 1. Whether an action brought under St. 1877, c. 234, § 5, against a town to recover damages for injuries sustained from a defect- ive highway, is a local action, not decided. Osgood V. Lynn, 130 Mass. 335 (1880). 2. Whether an action brought under Gen. Sts. c. 85, § 1, to recover treble the amount of money lost by gaming, is a local action, not decided. Morris v. Farrington, 133 Mass. 466 (1882). ACTION ON THE CASE. See Action; Pleading; Trespass. ADMINISTRATOR. See Executor. ADMIRALTY. See also Insurance, V. ; Ship. 1. The wages of a seaman on a coasting voyage on the Atlantic coast are subject to 15 ADULTERY. 16 attachment by the trustee process. White v. Dunn, 134 Mass. 271 (1883). See also Eddy V. O'Hara, 132 Mass. 56 (1882). 2. Where, however, the owners of a coast- ing vessel, after being summoned as trustees, are compelled by the process of an admiralty court having knowledge of the pendency of the trustee process to pay the seaman his wages, the owners will not be charged as trustees in the state court. Eddy v. O'Hara, 132 Mass. 56 (1882). ADMISSIONS. See Evidence. ADOPTION. 1. A child adopted, with the consent of its father and the sanction of a judicial decree, in another State, where the pai'ties are domi- ciled at the time, under a statute by which a child so adopted has the same rights of inher- itance as legitimate offspring in the estate of the adopting father, is entitled, after the adopting father and the adopted child have removed their domicil into this Common- wealth, to inherit here the real estate of such father as against his collateral heirs ; although his wife has given no formal consent to the adoption, as is required under the statutes of adoption of this Commonwealth. Ross v. Ross, 129 Mass. 243 (1880). See also St. 1876, c. 213, § 11. 2. Under the Pub. Sts. c. 148, § 4, notice of a petition for the adoption of a child is necessary in all cases where the written con- sent required by § 2 is not submitted to the court with the petition, even if a case is pre- sented by the petition, which, if proved to ex- ist, would authorize the judge of probate to decree the adoption without consent. Hum- phrey, appellant, 137 Mass, 84 (1884). 3. It is no objection to the maintenance of a petition by a husband and wife to the Pro- bate Court, under the Pub. Sts. c. 148, for the adoption of a child, alleged to be of un- known parentage and a foundling, that the petition does not also allege that the child is not one of the class excepted in § 1. Edds, appellant, 137 Mass. 346 (1884). 4. The question of the sufficiency of service of an order of notice issued by the Probate Court, under the Pub. Sts. c. 148, upon a petition for the adoption of a child, is for that court; in deciding it, that court is not con- fined to the return ; and, on an appeal to this court, will be presumed to have satisfied itself that the return was properly made. Edds, appellant, 137 Mass. 346 (1881). 5. Under the Pub. Sts. c. 148, the Probate Court may decree the adoption of a child, whose parents are unknown and are not brought within any of the exceptions of § 3, and who has no guardian, and has not been given up in writing, for the purpose of adop- tion, to a charitable institution incorporated by law; and the Probate Court, after the no- tice required by § 4 has been given, may ap- point a guardian ad litem for such a child, with power to give or withhold consent to the adoption. Edds, appellant, 137 Mass. 346 (1884). 6. A testator left a widow, and no children except an adopted daughter, E. By his will, he gave all his property to a trustee, in trust to pay all the income to his wife during her life, and also gave, at her death, pecuniary legacies to certain of his and her nephews and nieces, describing them as " my nephews and nieces; " and then provided as follows : " Af- ter the payment of the foregoing legacies, I give, bequeath, and devise all the remainder of my estate to my adopted daughterj E., wife of H., in her own right; but if the said E. shall die without issue before the decease of my said wife, then I give, bequeath, and devise said remainder to uie heirs at law of my said wife." E. died without issue. The testator's widow died subsequently, having had no children of her body, but having adopted H., who survived her. Held, that, under the Pub. Sts. c. 148, §§ 7, 8, H. did not take un- der the devise to the " heirs at law" of the testator's wife. Wyeth v. Stone, 144 Mass. 441 (1887). See Bastakdy Process. ADULTERATION OF MILK. See CoNSiTUTiONAL Law; Milk. ADULTERY. See also Divorce ; Conspiracy. 1. Upon an indictment against a man and a married woman, for adultery, the man may be alone convicted, although, at the time the act was committed, the woman was in such a state of stupefaction as to be incapable of con- sent; although the crime may be rape, it is none the less adultery on his part. Common- wealth V. Bakeman, 131 Mass. 577 (1881). 2. At the trial of an indictment for adul- tery, evidence of the reputation for chastity of the woman with whom the defendant is al- leged to have committed adultery is compe- tent. Commonwealth v. Gray, 129 Mass. 474 (1880). 3. At the trial of an indictment for adul- tery, a witness testified that he had- seen the defendant write once, and had been accus- tomed for twenty years to compare manuscript writings, and handwriting and penmanship, and was allowed to give his opinion that cer- tain communications in cipher, written to the woman with whom the adultery was alleged to have been committed, were in the defendant's handwriting. Held, that the testimony in regard to the qualification of the witness as an expert was sufficient to warrant the reception 17 ADVERSE POSSESSION. 18 of his opinion. Commonwealth v. Nefus, 135 Mass. 533 (1883). 4. At the trial of an indictment for adul- tery, a witness, competent to testify as an ex- pert, testified in explanation of letters written in cipher by the defendant and the woman with whom the adultery was alleged to have been committed; and the defendant, while testifying in his own behalf, admitted the correctness of the testimony of the expert. A communication written upon a newspaper in a cipher, which the same key fitted, was then offered in evidence ; and there was testimony that it appeared to be in the defendant's handwriting. It contained plain evidence of adultery with the woman to whom it was addressed. She was called by the pet name used in a letter which the defendant admitted he wrote to the woman named in the indictment. Both communications con- tained a reference to a threat to arrest the writer for an abortion committed upon the woman to whom they were each addressed, and both contained certain similarities of ex- pression. Held, that the writing upon the newspaper was properly submitted to the jury. Commonwealth v. Nefus, 135 Mass. 533 (1883). 5. At the trial of an indictment for adul- tery, the woman with whom the adultery was alleged to have been committed testified as a witness for the defendant, denying the fact of adultery. The government sought to contrar diet her by showing that a letter, offered in evidence, was written by her. The contents of the letter tended to show illicit intercourse between the writer and the person to whom it was addressed. She denied that she wrote the letter, although she said it looked like her handwriting. Two other manuscripts were produced, with direct evidence that she wrote them, and were used as standards of compari- son for the letter in question. One person acquainted with her handwriting testified that the letter was in her handwriting ; and another person, competent to express an opinion, testi- fied that the letter appeared to be in the same handwriting with that of one of the other manuscripts. It was written in a cipher which had been used by the defendant in writing to her; and he testified that she understood this cipher and had written to him in it. The en- velope of the letter was addressed to a woman in a- certain town, with the number of a box in the post-office; and there was evidence that that was the number of the defendant's box in the post-office in that town, and that he had taken from that post-office and box another letter with a similar address, and had opened and read it. The letter also contained, twice repeated, three initials, the meaning of which was not explained, but which apparently had some secret meaning, and which were also used by the defendant inaletter acknowledged by him to have been sent by him to the same woma,n. Held, that the letter was properly submitted to the jury. Commonwealth v. Nefus, 135 Mass. 533 (1883). 6. At the trial of an indictment against a man and a woman for adultery, S., the hus- band of the female defendant, who was a witness for the government, testified, on cross- examination, that he had employed persons to watch his wife. The defendant called as a witness one W., who testified that she had lived in the family of S. for about one year, and had left his employ. The defendants asked her if she had not, during the time she was in the employ of S., been offered money by him if she would watch his wife and tell him what she knew about his wife's actions. This question was excluded. The defendants also offered to show by this witness, that, on other occasions than that of the alleged offence, S. had accused his wife of similar acts of which she was not guilty. The judge excluded this evidence also. Held, that the defendants had no ground of exception. Commonwealth v. Trider, 143 Mass. 180 (1887). ADVERSE POSSESSION; DISSEISIN; OUSTER. For pre'scriptive rights in easements and other incorporeal hereditaments, see Pre- scription; Way. For rights of disseisor against strangers, see Trespass. See also Contract; Railroad; Water- works. 1. A tenant in a writ of entry, who claims under a deed from a, disseisee, and who is in possession of the land at the time the writ is brought, may set up such title in defence ; and the fact that his deed is merely one of quit- claim with limited covenants of warranty does not affect the case. Rawson v. Putnam, 128 Mass. 552 (1880). 2. An entry on land by a person disseised, merely for the purpose of seeing if there is any evidence of an adverse occupation, is not, as matter of law, conclusive evidence of an inteiTuption of the disseisor's adverse posses- sion ; and a ruling to the contrary is not justi- fied by the decision in Brickett v. Spofford, 14 Gray, 514 (1860). Bowen v. Guild, 130 Mass. 121 (1881). 3. In an action for teai-ing away the plain- tiff's dam, it appeared that the entire town- ship, where the land on which the dam had been built was situated, belonged, between two and three centuries ago, to the town, and that the deeds put into the case by the plain- tiff, and under which he claimed title, were dated within twenty years before the date of the writ. Held, that the defendant was not entitled to a ruling that the plaintiff must show either a title in his grantors from the town, or an adverse possession for a term of twenty years; that the jury were properly in- structed that the deeds, together with the fact of continued and uninterrupted occupation under them, uncontrolled by other evidence except the admitted fact that the land origi- nally belonged to the town, would authorize the jury to find the plaintiff's title valid. Howes V. Crush, 131 Mass. 207 (1881). 19 ADVERSE POSSESSION. 20 4. At the trial of a writ of entry, brought in 1880, to recover a parcel of flats, there was evidence that the flats were originally flowed by tide water, and were in a cove, across the mouth of which, as early as 1645, a dam had been built to obtain power for running a tide- mill; that, in 1803, a coi-poration, authorized by its charter to operate a canal, and to hold mill-seats on waters connected with its canal, took a deed of the demanded premises; and entered its canal upon the mill-pond, and had a floating tow-path projecting into the pond, which, in 1829, was removed, and a solid tow- path was built; that, from 1829 to 1851, the pond was used for canal and mill purposes, and was flowed or emptied at convenience; that canal-boats and timber were kept in the pond by the corporation, and no person other than the corporation exercised any control over the pond; that, in 18-59, the corporation executed a lease of the mill for fifteen years, with liberty to use soil from the bottom of the pond to repair the dam; that the canal was discontinued in 1851, after which the pond was used for mill purposes and to store tim- ber; that, in 1844, the corporation conveyed the mill and pond, subject to the lease, and subject to the right of the corporation to use the pond for canal purposes and to store tim- ber therein ; that material was used at differ- ent times from the bottom of the pond to repair the dam; that access from the sea was cut off by the dam, and access from the up- land was cut off by the canal and tow-path ; and that the mill was abandoned in 1872. Held, that this evidence would warrant a finding that a title to the soil under the pond had been acquired by adverse possession. Eastern Railroad v. Allen, 135 Mass. 13 (1883). 5. Two minor children, while their father was at sea, their mother, who had built with her own money a house upon land owned by the father, having died, left the premises, which they had previously occupied with their mother, and went to live with their uncle, who was executor of her will and called himself their guardian. Their father visited them about a year afterwards, and paid money from time to time for their support, and cor- responded with them often, but, after his first visit, went to a foreign country and lived there. The uncle, while the children were living with him and their father was away, let the premises at will only, and without specifying his authority. lie credited the children with the rent in his private account- book, and charged them with the cost of their support; and also accounted with their father, so far as required. The mother left a will, by which she gave the house to the children ; and the uncle insured it for their benefit. They afterwards gave notice to quit to the tenant of the house, and occupied it themselves. Held, on a writ of entry by the father against the children, brought more than twenty years after their mother's death, that there was no evidence that they had acquired a title by adverse possession. Silva v. Wimpenney, 136 Mass. 253 (1884). 6. If A. is entitled to a conveyance of land, and, by an agreement between A. and B., in order to defraud A.'s creditors, the land is conveyed to B., a title to the land by adverse possession of more than twenty years may be acquired by A. against B., although A. is without means to pay his debts during such possession, if B. knows that A. is holding the land adversely and under a claim of right during his possession. Elwell v. Hinckley, 138 Mass. 225 (1885). 7. At the trial of a writ of entiy, dated in 1883, it appeared that the demanded premises were conveyed by A., in 1829, to the ancestor of the demandant; that, in 1837, A. conveyed the same premises to the inhabitants of a school district, " their successors and assigns forever," by a deed which contained, aftei- a description of the premises, the words, " Said lot of land to be used, occupied, and improved by said inhabitants as a school-house lot, and for no other purpose; " that, from 1837 to 1882, the school district had the exclusive use of the premises for school purposes, and had taken exclusive care of it; and that, in 1882, the school district conveyed the premises to the tenant, the school-house was removed, and the premises ceased to he used for school pur- poses. Held, that the demandant's ancestor was disseised in 1837; that the deed to the school district was in form a deed in fee ; and that the statute of limitations. Pub. Sts. c. 196, was a bar to the action. Barker v. Barrows, 138 Mass. 578 (1885). 8. In an action for breaking and entering the plaintiff's close, brought in 1883, it appeared that the plaintiff, in 1852, took possession of the land under a deed purporting to convey the same, and cut off all the wood and timber thereon; that the land was woodland when cut over by the plaintiff, and had been left to grow up to wood, and, at the commencement of the action, consisted of sprouts, about one acre of pasture, and some wet land, and all of it had been occupied by the defendant's cattle more or less since 1852 ; that it was entirely surrounded by the defendant's land; that the defendant had fenced his own land, and had thus included within the fence the plaintiff's laud; that the defendant had used the lot as a pasture and place for his cattle to run, feed, and drink upon, without any hindrance or objection made by any one for more than twenty years ; and that the defendant had also repaired a road through the plaintiff's land, and had used the road in going to and from his own land, and had from time to time, from 1856 to 1877, cut one or two cords of wood upon the plaintiff's land, and had allowed it to remain on the land for some time before taking the same away, so that it could be seen by any one. The defendant testified that he claimed this lot as his own since 1856 or 1857; and that he ever since had had full and ex- clusive possession and control of the same, unmolested by any one. Held, that the evi- dence did not tend to show a title to the land in the defendant by adverse posses.sion, as against the plaintiff's prior title. Richmond Iron Works v. Wadhams, 142 Mass. 569 (1886). 21 AGENT, I. 22 AFFIDAVIT. See Akrest; Lien. AGE. See Evidence. AGENT. I. Appointment and Revocation ; HOW PROVED. II. Ratification and Adoption. III. Extent op Authority. IV. Execution op Agency. V. Rights and Liabilities op Princi- pal. VI. Liabilities op Agent. VII. Factors and Commission Mer- chants. VIII. Brokers. IX. Actions by and against Princi- pals AND Agents. Agents of Corporations; See Corporation. of Insurance Companies ; See In- surance. of Municipal Corporations; see Town; Way. See also Spirituous Liquors. I. Appointment and Revocation; how PROVED. Whether Agency exists. 1. Evidence that a husband, who had the management of a parcel of land of his wife, ordered materials for building a house on the land, and that the wife knew that the house was building, and occupied it when finished, will warrant the jury, in an action against her for the price of the materials, in finding that the husband acted as her agent. Arnold v. Spurr, 130 Mass. 347 (1881). 2. In an action for the price of a horse al- leged to have been purchased by the defendant through an agent, there was evidence that the horse at the time of the alleged sale had been in the possession of the defendant for some days, and a horse of the defendant, which was part of the consideration of the trade, was in the possession of the agent ; that on the morn- ing of the alleged sale the horse was severely injured while being driven by the defendant; that, afterwards on the same day the defend- ant wrote a letter to the plaintiff, ante-dating it, in which he objected to the price asked; that, two days later, the defendant sent a tel- egram to the plaintiff, saying that he had disposed of his own horse and could not ex- change, when in fact he had given the horse to the alleged agent; that before this, the agent had bought horses for the defendant. Held, that this evidence would not warrant a finding that the defendant had authorized the purchase of the horse by the alleged agent. Shaw V. Hall, 184 Mass. 103 (1883). 3. The plaintiffs in a bill in equity were the members of an association, and trustees for it of a patent, which was sold to a third person for a certain sum, and the defendants were authorized to receive the money for the use of the shareholders. The defendants ac- cepted the money on the terms of a receipt or covenant, by which they agreed to hold it until certain documents and the great seal of the patent were delivered to the purchaser, and to repay the money to him if all the things men- tioned were not done as agreed. These things were not done, and the purchaser notified the defendants to retain the money. Held, that the defendants accepted the money as stake- holders for both parties until the conditions were fulfilled, and not as agents for the plain- tiffs, and that the bill could not be main- tained. Smith V. Moore, 134 Mass. 405 (1883). 4. A corporation brought an action against an administrator upon a contract made with his intestate, by which he agreed to cut the hemlock trees on a certain lot of land, to peel the bark from them and deliver it at a certain tanneiy, and to receive as his compensation the logs or timber after the bark was peeled off. The plaintiff offered no evidence as to who was the agent who acted for the corpora- tion ; but relied upon admissions of the intes- tate before his death that he had made a contract substantially like that declared on. The defendant then offered evidence that, at or about the time when the plaintiff alleged the contract sued on to have been made, his intes- tate made a contract with T., acting as the plaintiff's agent, which was identical in its terms with the contract sued on; that he pro- ceeded under the contract to cut and peel trees on the lot described in the declaration ; that he did not draw the bark, because S. claimed the premises; that he notified T. by letter of S.'s claim, and received in reply a letter from T. in which he directed him not to draw the bark until he should come and run the lines. Held, that there was evidence, aside from T.'s acts and declarations, that T. was the agent of the plaintiff; and, this being established, that T.'s acts and declarations were admissible in evidence. Richmond L-on Works v. Hayden, 132 Mass. 190 (1882). 5. A. bought goods of B., informing B. that the business for which the goods were bought belonged to A., but would be carried on by C. in A.'s name. C. afterwards formed a copartnership with E., and A. revoked the agency, and thenceforth had no connection with the business. B. was not informed of the revocation, and continued to sell goods to the firm on A.'s credit. D. also sold goods to the firm on A.'s credit. B. sued A. and attached goods of the firm. Then D. sued C. and E., as doing business in A.'s name, and attached the same goods. B. then amended his writ without notice to D., joining C. and 23 AGENT, I. 24 E., and declaring against all as doing business in A.'s name. A. had uo interest in the goods attached. B. and D. each recovered judg- ments, and the officer, notwithstanding D.'s objection, applied the proceeds of the sale of the attached property to the satisfaction, first, of B.'s claim. D. then sued the officer, and, at the trial, asked the court to rule that the relation of B. to C. and E. was that of prin- cipal and agent; that B. could not hold both, and that therefore the property of C. and E. could not be taken in B.'s suit. The judge declined so to rule, and found for the de- fendant. Held, that D. had no ground of exception. Wright v. Herrick, 128 Mass. 240 (1880). 6. If a city lets rooms in a public building for a sum which includes the rooms let, heat- ing, lighting, and the services of a janitor, the janitor is the servant of the city, not of the lessee. So held, in an action brought against a city by one who, while lawfully in the building by invitation of the lessee, sustained injuries caused by the negligence of the jani- tor. Warden v. New Bedford, 131 Mass. 23 (1881). Evidence of Agency. 7. In an action against a corporation for an assault and battery and false imprisonment by its agents and servants, the plaintiff's evidence showed that a certain machine bought by him of the defendant was replevied upon a writ, in favor of the defendant, brought by one S., an attorney, who, in its service, committed the torts sued for; and that the replevin bond was signed by the defendant by G. , manager. The plaintiff also offered to show that, at the trial of the replevin suit, G. testified that he was the manager and agent of the defendant ; and further offered to prove that, before the writ in that suit was sued out, G., as such manager and agent, employed an attorney to sue out the writ ; that the writ was placed in the hands of a person for service; and that, upon the refusal of this person and the attorney to serve the writ by committing a breach of the peace, G. said "he would find some one to obtain the machine;" and then followed the employment of, and service by, S. Held, that this evidence should have been submitted to the jury upon the question of S.'s agency. Frost v. Domestic Semng Machine Co., 133 Mass. 563 (1882). 8. In an action for goods sold and delivered, the plaintiff's evidence tended to show that his agent offered to sell to the defendant goods to be used in rigging his vessel; that the defend- ant agreed to take the goods, if a third person who was doing the work on the vessel ap- proved of the order; that he did approve; that the agent thereupon wrote the name of the third person on the order; and that the goods were delivered and used on the vessel. Held, that the agent might be asked whether he wrote the name of the third person on the order at his request and direction. Newhall V. Hamilton, 128 Mass. 463 (1880). 9. On the issue whether the defendant had, by a salesman, made a certain contract with the plaintiff, there was evidence that the sales, man had authority to make such a contract, and that the plaintiff wrote to the defendant stating that such a contract was made, to which the only reply received was a letter written by the salesman on the letter-paper of the defendant, to which the defendant's name was signed by the salesman, admitting the contract to be as the plaintiff contended it was. Held, that the jury might properly in- fer that the salesman had authority to write the letter. Thomas v. Wells, 140 Mass. 517 (1886). 10. At the trial of an action upon a guar- anty of the soundness of goods sold, it ap- peared that the written guaranty upon which the plaintiff relied had been altered after it was signed by the defendant. The plaintiff contended that it was altered by the defend- ant in his office ; and the defendant denied that it was altered by him or by his authority. The plaintiff introduced a witness, who testi- fied that A. brought the defendant's bill into a store where the plaintiff then was; that a roll of bills was given to A. ; and that A. and the plaintiff went out of the store together. The plaintiff then offered to show by this wit- ness that the plaintiff found fault with the terms of the guaranty; and that A. said that " he was authorized by the defendant to say, if it was not right, to' return it to him, and that he would make it satisfactory." The judge excluded the evidence offered, upon the ground that there was no evidence that A. had any authority from the defendant to receive or make such statements. Held, that the plain- tiff had no ground of exception. Bowker v. Belong, 141 Mass. 315 (1886). 11. In an action for money lent, the follow- ing facts appeared: The pastor of a Roman Catholic Church borrowed money of the plain- tiff, for the use of the church, upon a written contract of repayment, in the form of a de- posit-book in the name of the church. The chui'ch had no corporate existence, and was incapable of making a contract. The money borrowed was mingled with the revenues of the church ; and, from the fund thus consti- tuted, the ordinary expenses of the church and sums due other similar depositors were paid, and payments were made for real estate. The defendant was the bi,shop of the diocese in which this church was situated, and held the legal title to all the real estate of the church. It was his duty not to permit priests to contract debts in the name or for the sake of a church without written permission. He knew that the pastor of the church in question was doing a banking business, and did not stop it, though he had the power to do so. He also knew of the manner in. which the money i-eceived from depositors was mingled with the other funds of the church. Shortly before the death of a pastor of the church, the defendant received from him a large sum of money to meet the claims of depositors ; and this sum was turned over to the successor of said pastor for the benefit of depositors. The defendant also raised money upon mortgages of the church property and upon his own un- 26 AGENT, 11. 26 secured notes for the same purpose; and sub- sequently transferred the real estate of the church to an ecclesiastical corporation, which afterwards became insolvent. The defendant testified, and his testimony was the only evi- dence in the case on the question of what the canon law was, that, under the canon law, the bishop has full power, in the management of church affaii's; that the diocese is the parish, and the bishop the universal parish priest ; that all power possessed by priests is delegated from the bishop ; that the clergyman in charge of a church has charge of all its temporalities ; that it belongs to such pastor to make all con- tracts relating to the temporal affairs of the church, and he is not the agent or servant of the bishop in such matters; that the only con- trol of the bishop over the pastor is by eccle- siastical discipline. Held, that a verdict for the plaintiff could not, upon this evidence, be sustained. Leakey v. Williams, 141 Mass. 345 (1886). 12. S., the owner of S.'s express, sold the business to A., who leased it, for a certain sum monthly, to B., who continued to con- duct the business, under the lease, in the name of S.'s express. C, who was employed in the business before the sale to A., contin- ued in the service of A., and of B. afterwards ; and as such servant, after the lease to B., re- ceived from D., who had dealt with him while he was employed by A., goods to be de- livered to persons ordering them through said express, the price of which was to be collected and returned to D. The price of the goods was collected, but was not accounted for to D., who brought an action against A. to re- cover the same. D., who was notified by S. of the sale to A. soon after it took place, never saw A., or had any actual notice of the lease to B., or of his conducting the business under the lease. Although that fact was published in a newspaper and announced in circular notices sent by B. to persons dealing with the express, D. never received the newspaper or circular. The orders on which the goods were delivered to C. bore the printed heading, " S.'s express, B. agent." Held, that, on these facts, the judge, who tried the case without a jury, was warranted in finding for the defendant. Rich v. Crandall, 142 Mass. 117 (1886). 13. The law of a Territory required any insurance company doing business therein to appoint an attorney at law in each county where its agencies were established, and to file with the territorial auditor an instrument, duly signed and sealed, authorizing such attorney to acknowledge service of legal pro- cess, and consenting that any service of pro- cess on such attorney should be taken and held to be as valid as if served upon the com- pany. An insurance company filed such an instrument, designating A. and Company as its agents at a certain town, upon whom pro- cess could be served. Afterwards the firm of A. and Company, consisting of A. and B., was dissolved, and A., who was not an attor- neys at law, continued to do business at the same place, under the name of A. and Com- pany, as the agent of the insurance company. Subsequently, the company issued a policy of insurance to C, which was countersigned by A. ; and C. brought an action on the policy in a distiict court of the Territory, service of process being made upon A. alone, and re- covered judgment. The insurance company made no change in the instrument filed in the auditor's office, after the dissolution of A. and company ; and before the service of pro- cess the agency of A. as A. and Company was withdrawn. Held, that C. could maintain an action upon the judgment against the insur- ance company, although it did not appear that he knew that A. was appointed an agent of the company to accept service of process. Gibson V. Manufacturers' Ins. Co., 144 Mass. 81 (1887). n. Katification and Adoption. 1. A husband promised to pay for goods which had been furnished to his wife upon his credit. The goods were necessaries such as he would have been bound to supply her with. Held, that his promise, although ac- companied by a direction to sell no more goods to her on his credit, amounted to a ratification of her contract, and that an action might be maintained against him, although she had no previous authority to purchase the goods. Conrad v. Abbott, 132 Mass. 330 (1882). 2. A deed, containing a recital that the land therein described was subject to a mort- gage " which the grantee assumes and agrees to pay," was executed to a woman as grantee, without her knowledge or authority, by the direction of her husband, and was by him recorded. She neither saw the deed nor knew of its contents until after the land was sold by the mortgagee, when she repu- diated the deed. Soon after the deed was recorded, she knew that the land had been conveyed to her, and claimed to be the owner of it. Held, that these facts would warrant a finding that she had assented to the purchase, and a ruling that she was bound by the recital in the deed. Coolidge v. Smith, 129 Mass. 554 (1880). 3. The finance committee of a savings bank instructed, by vote, the treasurer of the bank to sell certain property of the bank at not less than a price named. The treasurer sold the property to himself and other members of the finance committee, for the price named, which was less than the market value of the prop- erty, and entered the amount on the cash-book of the bank. The vote was afterwards ap- proved by the trustees. Held, that this ap- proval was not a bar to an action by the bank against the treasurer to recover the difference between the mai-ket value of the property and the price paid, it not appearing that the atten- tion of the trustees was called to the entry in the cash-book. Greenfield Savings Bank v. Simons, 133 Mass. 415 (1882). 4. In an action against the owner of a hotel for the price of furniture sold and delivered, 27 AGENT, m. 23 on the order of a person who had the general management oi tha hotel, with the defend- ant's consent and for his benefit, the only- evidence was the report of an auditor, who found that the furniture was suitable for the hotel and was used in its equipment ; that the defendant knew that the manager had ordered similar articles from the plaintiff, for which he did not deny that he was liable ; that the defendant gave no notice to the plaintiff that the manager had no authority; that, two months after the goods sued for were deliv- ered, the defendant had knowledge of the way in which the goods were ordered, and neither offered to return them, nor directed the plain- tiff to take them away ; and that all the goods had, since their delivei-y, been at the hotel, in the possession and under the control of the defendant; and found for the plaintiff. Held, that the questions, whether the manager had authority to buy the goods on the credit of the defendant, and whether, if he had not authority, the defendant had ratified his acts, were questions of fact proper to be submitted to the jury upon this evidence; and that all the findings of the auditor were pertinent and material upon both these issues. Lawrence v. Lewis, 133 Mass. 561 (1882). 5. If a life insurance policy provides that it "shall not take effect until the advance premium hereon shall have been paid during the lifetime of the person whose life is here- by insured," a payment of such premium by a third person, without the knowledge of the assured, is of no effect, although made with his money, and his administrator cannot ratify the act. Whiting v. Massachusetts Ins. Co., 129 Mass. 240 (1880). 6. A. bought one hundred shares of stock in a corporation through B., who acted for her as a friend, without pay. One month later, B. ordered a broker to buy one hundred shares more on sixty days' credit, and deposited the first purchased shares as security. Ten days afterwards, A. asked B. how she should know, if anything happened to him, that she had any stock. He said he would give her some- thing to show her title, and wrote, signed, and delivered to her the following order, addressed to the broker: "The 100 shares of stock you pui-chased for me" on a day named, "for which you have been paid, and the 100 shares you purchased for me " on a later day named, " buyer 60, receiving from me the 100 shares of stock as collateral security, were bought by me for A. Please deliver the stock to her, if she calls for it at any time." Six months after- wards, A. ordered B. to sell her stock, suppos- ing that she had the original shares; and a hundred shares regarded as hers by B. were sold at a loss. A. subsequently attempted to repudiate the transaction set forth in the above order, and brought an action against B. for the conversion of the first one hundred shares of stock. Held, that A. must be pre- sumed to have understood the contents of the written order; that her silence ratified the purchase, and consequently the pledge; and that the action could not be maintained. Met- calfe. Williams, 144 Mass. 452 (1887). nr. Extent of Authority. 1. Upon the question of whether the auc- tioneer who sold an estate under the power contained in a mortgage had authority to buy for the plaintiff, two letters, written by the plaintiff to the auctioneer, were put in evi- dence, the first saying, " Please foreclose the mortgage as soon as convenient; " and the other, ' ' I have been waiting for that money to pay the remainder of my taxes, and the interest is accumulating there too. So, if you will advertise the property as soon as possible, you will greatly oblige me." Held, that the two letters, construed together, contained no authority to the auctioneer to purchase the estate for the plaintiff. Hood v. Adams, 128 Mass. 207 (1880). 2. Plaintiff sued a street railway company to recover for services rendered in preparing a statement of an accident witnessed by him. He claimed to have been employed in the mat- ter by a stable foreman, who was directed by the superintendent to look up the case. The plaintiff claimed that it was necessary for him to go to another town to obtain information, and for this he charged. Held, that the court properly instructed the jury that if the plain- tiff honestly believed that it was necessary for him to go to the neighboring town he could recover a reasonable price for the service, although the evidence introduced at the trial made it apparent that no real necessity ex- isted for his going ; and that the question of whether the foreman had authority to employ the plaintiff in the matter was a question of fact. Held, that the exceptions of the defend- ant company to these instructions were frivo- lous, and should be overruled with double costs. Lovejoy v. Middlesex Railroad, 128 Mass. 480 (1880). 3. A policy of insurance against fire pro- vided that it should be null and void if, with- out the written consent of the company first obtained, the dwelling-house insured should become vacant by the removal of the occu- pant. An agent of the company who took the risk, and whose commission authorized him to issue policies, make surveys, consent to the assignment of policies, receive premi- ums, and "attend to all other duties and business of the agency," wrote in the policy, after the house had been vacated by the ten- ant for several days, " permission granted to remain unoccupied until " a certain day, which was after the date of the loss; and shortly afterwards notified the company of this act, but the notice was not received until after the loss. Held, in an action on the policy, that the evidence warranted a finding that the agent had authority to grant such permission. Wheeler v. Watertown Ins. Co., 131 Mass. 1 (1881). 4. If an application for a policy of insur- ance on the life of a person provides that the representaitions and answers made therein " shall form the basis and become part of the contract of insurance," and " that any untrue answers will render the policy null and void," and the policy recites that it is issued " in con- 29 AGENT, IV. 30 sideration of the representations and agree- ments in the application for this policy, which application is referred to and made a part of this contract," in an action upon the policy the application is to be considered a part of the contract, and if the representations in it are in a material respect untrue, the action cannot be maintained, although the untrue representations were inserted in the applica- tion by the agent employed by the defendant to solicit insurance, without the knowledge of the applicant, who orally stated the truth to the agent; and Sts. 1861, c. 170, and 1864, 0. 114, do not apply. McCoy v. Metropolitan Ins. Co., 133 Mass. 82 (1882). 5. If an application for a policy of fire in- surance is made in writing, the insurance company has no right to rely upon a verbal representation made to the agent of the com- pany by a clerk of the broker who procured the insurance ; and such representation , though false, will not vitiate the policy. Dollioer v. St. Joseph Ins. Co., 131 Mass. 89 (1881). 6. A. delivered to an attorney at law, before its maturity, a negotiable note indorsed in blank for collection. The attorney deposited the note in a bank, where he kept an account. No statement was made by the attorney, and the deposit was made, apparently, in the usual course of business. The bank collected the note and credited the amount to the ac- count of the attorney, who was indebted to the bank. The attorney became bankrupt, and the bank made a settlement with his as- signees, in which settlement the amount of the note was included. A year afterwards, A. first ascertained the facts. Held, that he could not maintain an action against the bank. Wood V. Boylston Bank, 129 Mass. 358 (1880). 7. A corporation entered into a written contract with an agent, by the terms of which he guaranteed that his sales should not be less than a certain sum for the term of his employ- ment, and that all sales should be made to good and responsible parties, and at not less than market prices. Held, in an action against the corporation for the breach of a written contract, made by its agent in its name, to sell goods to the plaintiff, that the authority of the agent was not limited by the provisions in the contract between him and the corporation, and such provisions could not affect third persons; and that evidence that the agent, in making the sale to the plaintiff, violated such provisions, was inadmissible. Byrne v. Massasoit Packing Co., 137 Mass. 313 (1884). IV. Execution of Agency. 1. A written agreement, purporting to be between T., agent of the steamship A., of the one part, and G.,of the other part, and signed by "T. agent" and G., provided that the party of the first part let to the party of the second part a certain space on the steamship for the conveyance of cattle ; that the steam- ship should put on board a condenser capable of supplying the cattle with water; that the captain was to allow his officers and crew to render assistance in case of emergency, with- out liability to the ship-owner; that the at- tendants of the cattle were to have passages free of charge, but without liability to the ship-owner; and that the steamship was to have a lien on the cattle for the freight. Held, that the agreement was the contract of the steamship and her owners, and not of T. personally. Goodenough v. Thayer, 132 Mass. 152 (1882). 2. If an order for goods is addressed to a corporation, and is accepted by " A. B., treasurer," he being in fact the treasurer of the corporation, the acceptance is in form that of the corporation. Rogers v. Union Stone Co., 134 Mass. 31 (1883). 3. Three persons holding land as trustees of an association composed of themselves and several other persons, called "the B. Com- pany," entered into two contracts with the plaintiff, which, by the articles of the trust, they were authorized to make on behalf of the shareholders. Both of these contracts stated on their face that they were made by the trustees "as trustees of the B. Company;" and were both signed by these persons as trustees of the same company. By the first contract, the plaintiff was to construct a wharf " for said company on their land," on the line of a dock or canal " to be excavated for said company;" and "payments shall be made" at stated times. The second contract recited that the plaintiff agreed to construct a canal or dock ' ' for said company on the company's land; " and the provision as to payments was substantially like that in the first contract. Held, that it was intended by these contracts to bind the company, and not the trustees personally, and that they were sufficient in form for that purpose; and that the addition of seals, being unnecessary, might be disre- garded as surplusage. Cook v. Gray, 133 Mass. 106 (1882). 4. In an action against a firm of real estate brokers for negligence in selling a parcel of land belonging to the plaintiff, there was evi- dence that the land was situated in a State in which neither the plaintiff nor the defendants resided or had a place of business ; that the plaintiff employed the defendants to obtain offers for the land; that the defendants em- ployed one O. to obtain an offer; that he reported an offer, which was in fact made in his own behalf and which was less than the market value of the land, which offer was reported to the plaintiff and accepted by him, and the land conveyed ; that one of the defend- ants at the time of sending the order to the plaintiff, who did not know the value of the land, advised him that the sale was a good one, and the plaintiff relied to some extent on this advice; that the defendants did not in fact know the value, except as they were in- formed by O., who represented the value to be what was offered; that they did not com- municate their want of knowledge to the plaintiff; and that the plaintiff directed one of the defendants to telegraph to his partner to accept the offer " if a good sale." Held, that, 31 AGENT, v., VI. 82 if the acceptance by the plaintifE was on the condition that the defendants thought it was a good sale, they were not liable if their opin- ion was honestly formed and no misrepresen- tation of fact was made ; that if the acceptance was conditional on the sale being a good one, and the defendants were informed that the plaintifE relied upon them to decide upon that, they were bound to exercise reasonable care in determining that fact. Barnard v. Coffin, 138 Mass. 37 (1884). V. Eights and Liabilities of Principal. 1. A discharge in insolvency under the laws of this Commonwealth is no bar to an action by a citizen of another State, on a contract to be made and performed here with the defend- ant, a citizen of this Commonwealth, although the defendant made the contract with the plaintiff's agent, also a citizen of Massachu- setts, supposing him to be the principal, the fact of his being an agent merely not having been disclosed. Guernsey v. Wood, 130 Mass. 503 (1881). 2. If a person executes a deed of land, and places it in the hands of A. with directions to keep it during the grantor's life and on his death to deliver it to the grantee, A. holds it as agent of the grantor, and not as agent of the grantee, and the grantor may revoke it at any time. Hale v. Joslin, 134 Mass. 310 (1883). 3. A person is not bound by a contract which he is induced to sign by representa- tions of an agent, made, while acting within the scope of his agency, as true of his own knowledge, but which prove to be false, al- though not known by the agent to be so ; and the principal is bound by such representa- tions, although he does not expressly author- ize them, or know that the agent is to make them. Jewett v. Carter, 132 Mass. 835 (1882). 4. That a person knew, when he entered into a contract in writing, not under seal, purporting on its face to be made on the other part by A. and signed by "A., agent," that A. was in fact contracting as agent for B., will not prevent him from maintaining an action against B. on the contract. Byington V. Simpson, 134 Mass. 169 (1883). 5. An insurance company issued a paid-up policy of insurance on the life of F., payable either to F., his executors, administrators, or assigns, on a certain day, or, should F. die before that day, to F.'s wife. ' Before the policy was payable, F. became bankrupt, and the insurance company, wishing to procure the surrender of the policy, authorized B., its agent, to purchase it for $3,000. The as- signees in bankruptcy of F. assigned their interest in the policy to A., and A. assigned it to B., the latter giving A. a receipt for the policy signed by him as " manager," stating that it was surrendered for cash value. F.'s wife assigned her interest to the company, and F. executed a similar assignment. B. subse- quently obtained an assignment of the policy to himself from F.'s wife. The papers were thus drawn at the request of B., who said that they were necessary to perfect the title. On these assignments being received, the com- pany sent to B. a check for $3,000, and B. paid A. $2,000. In an action by A. against the company, to recover the remaining $1,000, the jury found that B. acted in these transac- tions as the agent of the defendant, and not as the agent of A. or of F.'s wife. Held, that the defendant was liable for B.'s acts; and that, although A.'s interest in the policy was less than $3,000, he could maintain the action . in his own name for his own benefit and for the benefit of F.'s wife. Atkins v. Equitable Assurance Society, 132 Mass. 395 (1882). VI. Liabilities of Agent. 1. If the treasurer of a savings bank is in- structed by a vote of the finance committee to sell certain rights to take stock in a corpora- tion, the property of the bank, for not less than a sum named, and undertakes to do so, he acts as an agent of the bank, and not as a trustee, although he is also a trustee of the baiik and a member of the finance committee; and if he immediately sells the rights to him- self and other members of the committee for the minimum price fixed, which is less than the market value of the rights, without mak- ing any attempt to procure purchasers at a higher rate, and pays to the bank ths money so obtained, the bank may, without returning the money, maintain an action at law against him to recover the difference between the mar- ket value of the rights and the price obtained. Greenfield Savings Bank v. Simons, 133 Mass. 415 (1882). 2. The duty of an agent, to whom a note is sent by the holder for collection, is to demand payment, and if the note is dishonored, to give seasonable notice to his principal. This duty performed, his principal retains his rights against an indorser to whom he transmits no- tice without delay. Lynn Bank v. Smith, 132 Mass. 227 (1882). 3. If an agent undertakes to do the work of his principal, and employs a sub-agent to assist him, on his own account, he is answerable to the principal for the wrong-doing of the sub- agent, although the principal has knowledge of the fact of the employment of the sub- agent. Barnard v. Coffin, 141 Mass. 37 (1886). 4. In an action by an insurance company against its agent for failure to cancel a policy of insurance, as directed, it appeared that the defendant issued a policy in the plaintiff com- pany upon certain property, containing the provision that " it may also be terminated at any time at the option of this company, on giving written or verbal notice to that effect, and refunding or tendering a ratable propor- tion of the premium for the unexpired term of the policy," and notified the plaintiff of it; that the plaintiff, on the same day, notified the defendant by letter that it declined to take the risk, and directed him to cancel the policy; and that this letter was received by 33 AGENT, VII., VIII. 34 the defendant on the next day. There was evidence tending to show that the defendant could have notifled tiie insured within half an hour after receiving the plaintiff's letter; that the defendant, being also the agent of another insurance company, on that day wrote a policy in that company, which he intended to take the place of the plaintiff's policy, but did not notify the insured of the other policy, or of the cancellation of the plaintifi's policy, and took no steps to eflect such cancellation until after the insured property was burned, which occurred five days later. Held, that it was competent for the judge, who tried the case without a jury, to find, from this evidence, that the defendant did not exercise that dili- gence which his duty to the plaintiff required; and that the action could be maintained. Phcenix Ins. Co. v. Brissell, 142 Mass. 513 (1886). VII. Factors and Commission Mer- chants. 1. J. , who did business in wool as a broker, as a commission merchant, and as a ware- houseman, applied to the plaintiff to take a consignment of wool from F., and to make advances thereon. The plaintiff agreed to take the wool, and J. subsequently delivered to him a railroad receipt, in which the wool was stated to have been received of F. and to be consigned to the plaintiff, and also an in- voice, signed by F., which stated that the wool was consigned to the plaintiff for sale on account of F. On the arrival of the wool, the plaintiff gave the carrier an order to deliver it to J. , and received from J. a receipt stating that he received the wool for the plaintiff's account, F. consignment; and the plaintiff paid drafts on the wool to the amount he had agreed to advance, some of the drafts being payable to the order of J. The plaintiff gave J. no authority to sell the wool as a factor or consignee, but intrusted it to him as a ware- houseman, for the purposes of sale, and -vfith authority as broker to receive offers for it and to negotiate sales, to be reported to and settled by the plaintiff. While the wool was thus in J.'s possession, J. stated to the defendant, who knew that J. was a warehouseman, broker, and merchant, that he owned the wool, and pledged it to him for a valuable consideration. .The defendant acted in good faith; and, be- fore leading money upon the wool, J. had the wool put in the warehouse of a third person, who gave a warehouse receipt for it. Held, in an action of tort for the conversion of the wool, that J. was not a factor or other agent intrusted with the possession of merchandise for sale, within Gen. Sts. c. 54, § 2, nor a person intrusted with merchandise, and hav- ing authority to sell or consign the same, within § 3, nor a consignee or factor having possession of merchandise with authority to sell the same, within § 4 ; and that the plain- tiff was entitled to maintain the action. Held, also, that the fact that J. and F. were jointly interested in the wool, J. having the right to SUPPLEMENT. — 2 dispose of it, and that the plaintiff, in igno- rance of this fact, placed the wool in J.'s pos- session, did not affect his right to maintain the action. Thacher v. Moors, 134 Mass. 156 (1883). 2. A. shipped a cargo of sugar to B., and gave him authority to sell the same. The bill of lading recited that the shipment was by order of B. , and that the sugar was deliver- able to his order, and made no mention of any agency. B. indorsed the bill of lading, and delivered it to a bank of which he was a di- rector, and pledged the cargo to the bank as security for a loan by the bank to him. This loan was approved by the board of directors, at a meeting at which B. was present. Held, that B.'s knowledge of the fraud was not im- putable to the bank; and that an action by A. against the bank, for the conversion of the sugar, could not be maintained. Innerarily V. Merchants' National Bank, 189 Mass. 332 (1885). 3. A. , a manufacturer, had two mills, one of which was run under his own name, and the other under the name of B. He con- signed goods to C, a commission merchant, under an agreement that C. should make advances, should sell the goods, and, after deducting his advances, with interest, and his expenses, charges, and commissions, should credit A. with the net proceeds. A. kept the accounts of each mill separate; and he con- signed and invoiced the goods to C, who had no knowledge that A. was the sole owner, in the name under which each mill was run. C. brought an action against A., to recover the balance of an account current with the mill run under the name of A., to which the an- swer was a general denial, and payment. Held, that, under the pleadings, A. could not show that there was a balance due him upon the account in the name of B., which should be allowed in this action, or that there were in C.'s hands goods from the mill rvm in the name of A., which were not included in the account sued on. Held, also, that the expense of printing a part of the goods was properly charged to A., it being shown that this was done under the usage of commission mer- chants in like cases. Talcott v. Smith, 142 Mass. .542 (1886). For rule of damages where factor sells goods for less than the price limited by their owner, see Damages; 132 Mass. 230. VIII. Brokers. 1. The defendant employed the plaintiff as a real-estate broker to sell his estate. The plaintiff rendered some services in attempting to sell the estate to P., who at one time thought of buying it, but abandoned the idea. A subscription was raised for the purpose of preserving the building standing on the estate as an historical monument. A committee of the subscribers employed C. as their agent, and he entered into negotiations for the prop- erty which resulted in an agi-eement by the defendant to sell it. Neither the plaintiff nor 35 AGENT, VIII. 36 P. had any connection -with these negotia- tions. The subscriptions were not sufficient to pay the price agi-eed upon, and it was neces- sary to borrow a large sum of money upon a mortgage of the estate. The lender required that the mortgage, note should be signed by some known responsible person, and there- upon the committee induced P.- to take the conveyance to himself and to sign the mort- gage and note. Held, that P. was not a pur- chaser of the estate, even if the information furnished him by the plaintiff induced him to take the position he did in regard to the prop- erty, within the meaning of a usage that a broker, whose services are accepted by the seller, and who introduces the seller to a pur- chaser, is entitled to a commission upon the amount for which the estate is sold, if ulti- mately purchased by the person so introduced, whether the sale is finally effected by the same broker or by another person. Viaux y. Old South Society, 133 Mass. 1 (18S2). 2. The maker of a promissory note payable to the order of F. applied to a broker to ne- gotiate a loan of money on the note and on other security. The broker applied to B., who agreed to lend the money if the secuiity was all right, and requested the broker to make inquiries and report particulars as to the suf- ficiency of the security. The broker procured P.'s indorsement oa the note, and B. lent the money. Held, iu an action on the note by B. against P., that there was no evidence that the broker acted as the agent of B. in procur- ing F.'s indorsement. BurlingameY. Foster, 128 Mass. 125 (1880). 3. If a broker, employed by A. to sell his house, effects a transaction by which A.'s house is bought by B., who sells his house to C, the purchase and the price paid by B. be- ing dependent upon the purchase and the price paid by C, by whom the purchase money, the amount of which is the same in each, is paid directly to A., who pays the broker a commission for his services in selling A.'s house, the broker cannot mainta,in an action to recover a commission of C, even if he was employed by C. to buy a house for him. Follansbee v. O'ReiUij, 135 Mass. 80 (1883). 4. A contract for the purchase of stocks, to be delivered within a specified time, made by a broker in pursuance of an order of a cus- tomer, who deposits with the broker a part of the price ^of the stocks as a " margin," and who is to pay or receive any difference be- tween the contract price and the market price of the stocks on the day the contract matures, if closed by the broker, is not illegal, even if it falls within the Pub. Sts. c. 78, § 6, but the broker may maintain an action against the customer for money paid under such con- tract; and, if the customer sets up the ille- gality of the contract as a defence, he has no ground of exception to a ruling that the bur- den is on him to prove such illegality. Jones v. Ames, 135 Mass. 431 (1883). 5. If a broker makes a contract for A. to sell and deliver to B. a certain quantity of wheat, at any time, during a year named, which A. may select, at a fixed price, and agrees that if, by a rise in the price of wheat, more margin shall be required, he wiU not sell the wheat, but will draw upon A. for such an amount as is necessary to carry the wheat, the broker has no right to close the contract without drawing upon A., although A. at the time is out of the State, and has made no provision for the payment of the draft, of which fact the broker has knowledge. Foote V. Smith, 136 Mass. 92 (1883). 6. A. employed a broker to purchase cer- tain shares of stock upon a margin, and to carry them for him. The broker reported that he had made the purchase. On a decline in value, A. instructed the broker to sell the shares ; the broker afterwards reported that he had done so; and A. paid him the differ- ence between the purchase price and the sale price, together with interest and commissions. Held, that, if no purchase or sale was in fact made, and the broker simply assumed the contract himself, A. was entitled to recover from the broker the money paid him, unless he made the payment with knowledge of the facts. Todd v. Bishop, 136 Mass. 386 (1884). 7. If A. is employed as a broker to sell B.'s house, on the agreement that he will inform B. if he sends a purchaser, and A. and C. then agree that, if C. will procure a pur- chaser, he shall share with A. in the commis- sion, and C, on going to look at the house, tells B. that no broker has anything to do with the trade, and a price is named on that understanding, and the house is bought by a purchaser procured by C, A. and C. are part- ners in the business of effecting a sale of B.'s house to such purchaser; and C.'s fraud, though not participated in by A., will bar an action by A. against B. for the commission, prosecuted for the joint benefit, and at the joint expense, of A. and C. Thwing v. Clif- ford, 136 Mass. 482 (1884). 8. A. employed B. to find purchasers for a certain number of shares of stock at a price named, and agreed to pay him a commission of a certain per cent on the sale. B. nego- tiated with C. for the purchase of the stock, and D. was subsequently consulted with by C. and later by B., as to joining in the pur- chase. D. suggested E. as an associate, and afterwards called his attention to the mattei". While these negotiations for a sale were pend- ing, A. informed B. that he had sold the stock to other persons, and could not sell to C. and his associates; but afterwards, at the request of B. and C, A. transferred the shares' to C, D., and E., as a sale in one " block," and at a lower price than that originally fixed by him, though B. had nothing to do with such reduction in price. Held, in an action by B. against A., that B. was entitled to recover a commission on the shares so sold. Dexter -v. Campbell, 137 Mass. 198 (1884). 9. If the owner of land employs a broker to sell it for a stipulated compensation, the broker is entitled to receive that sum, if, in pursuance of his employment, he substantially effects a sale by introducing to the owner a person to whom the owner sells the land. Desmond v. Stebb'ma, 140 Mass. 839 (1885). 37 AMENDMENT. 38 IX. Actions by and against Principals AND Agents. 1. A., as agent for the owners of a vessel, signed a charter-party, which purported to be made by the owners, and not by A. Held, that A. could not sue upon it, the covenants or promise not running to him. Terry v. Brightman, 132 Mass. 318 (1882). 2. If a factor, under an entire contract tor a gross sura, sells goods, some of which belong to himself and some to his principal, the principal cannot sever the contract and mam- tain an action against the -purchaser to re- cover the value of his goods. Roosevelt v. Doherty, 129 Mass. 301 (1880). 8. In an action against two persons as part- ners on a promissory note signed by one of them in the firm name, a verdict ma,y prop- erly be returned against both jointly, if it ap- pears that the one who signed was an agent with authority to sign the note, and held him- self out to the payee as a partner, and that the other defendant was the only member of the firm. Nichols v. James, 130 Mass. 580 (1881). AGREED FACTS. See Case Stated. If it appears that the note has been mate- rially altered since delivery, and the plaintiff proves that it has never rightfully or to his knowledge been in the possession of any one but himself or his agent, and that the altera, tion was not made by either of them or with the knowledge or consent of either of them, the plaintiff may recover upon the note as originally written, although he cannot show the circumstances of the alteration. Drum v. Drum, 133 Mass. 566 (1882). 4. A memorandum made by the holder on the back of a promissory note, to the effect that the rate of interest after a certain day will be less than that stated in the body of the note, is not a material alteration, such as will discharge the liability of a surety having no knowledge of it, nor of the agreement between the maker and holder. Cambridge Savings Bank V. Hyde, 131 Mass. 77 (1881). 5. If A. signs an agreement, which is partly printed and has blank spaces to be filled in writing, for a copy of a book, to be published by B. in several volumes, and B., after the agreement has been signed and delivered by A., inserts, without A.'s consent, the word "cloth" in the blank space after the printed words "bound in," and the figures "$6.25" in the blank space before the printed words "per volume," it is a material alteration which will avoid the contract. Osgood v. Stevenson, 143 Mass. 399 (1887). AGREEMENT. See Contract. ALIMONY. See Divorce ; Husband and Wife. ALTERATION OF INSTRUMENTS. 1. A corporation is not bound, as to third persons, by interpolations fraudulently in- serted in its records, if such third persons have not acted on or seen or known of the existence of the matters so interpolated and appearing to be a part of the records. Holden V. Hoyt, 134 Mass. 181 (1883). 2. The unauthorized alteration of a promis- sory note which is complete upon its face, and which has not been intrusted by the maker to any one for the purpose of being filled up or added to, does not make him liable to an ac- tion upon the note in its altered form. Cape Ann Bank v. Burns, 129 Mass. 596 (1880). 3. If the original tenor of the note is ap- parent on inspection, it is sufficient to declare upon it in the usual form : upon showing that the alteration is a spoliation, there is no vari- ance between allegation and proof. Drum v. Drum, 133 Mass. 566 (1882). AMENDMENT. Amendment in Equity, see Equity Plead- ing and Practice. Of effect of amendment in discharging attachment, see Attachment, III. 1. If an action is brought against an ad- ministrator on a promissory note made by his intestate, by an indorsee thereof, and this court sustains the defendant's exceptions on the ground that the note is not a negotiable note, it is within the discretion of the Supe- rior Court to allow the writ to be amended by striking out the name of the plaintiff and in- serting that of the payee of the note, although more than two years have elapsed since the time of the appointment of the administrator. Cosielo V. Crotcell, 134 Mass. 280 (1883). 2. If an administrator sells, under Gen. Sts. c. 98, § 4, to A. a claim due to the estate of his intestate from B., and then brings an action against B., in his own name, as admin- istrator, for the benefit of A., it is within the discretion of the Superior Court to allow the writ to be amended by striking out the name of the administrator, and inserting that of A. as plaintiff. BucklanU v. Green, 133 Mass. 421 (1882). 3. It is within the power of the Superior Court, after a rescript has been sent down by this court, ordering judgment for the defend- ant in an action at law pending in that court, and an entry has been made by the clerk on the docket of that court, in accordance with 39 AMENDMENT. 40 the rescript, to suspend the judgment, and to allow an amendment changing the action at law to a suit in equity, during the first term and before any final judgment has been en- tered by that court by a special or general order ; and the exercise of such power is a matter of discretion, to which no exception lies. Terry v. Brightman, 133 Mass. 536 (1882). 4. A court of record has no authority to allow an amendment to the return of a levy of an execution issued by it, by inserting a new and material fact, without proof of the truth of that fact. Bayley, petitioner, 132 Mass. 457 (1882). And the truth of such an amendment, that the oflBcer, "having made diligent search for " the debtor, "but not finding him in my pre- cinct," could make no personal service upon him, is not sustained by proof that the officer, upon hearing at the debtor's residence that he •w&s probably not in, left for him a written notice of the time and place of sale under the execution, and made no further inquiry or search. Bayley, petitioner, 132 Mass. 457 (1882). 5. A formal defect in a declaration, which might have been cured by an amendment, is waived, if first objected to at the trial in the Superior Court, a full hearing having been had before an auditor. Boston §• Albany Railroad V. Pearson, 128 Mass. 445 (1880). 6. A count upon an express promise to pay one half of the amount expended by a town for the support of a lunatic at a state hospital is not sustained by proof of the defendant's liability under Gen. Sts. c. 73, § 25; but, if the merits of the case have been tried, and the facts necessary to create the defendant's liability under the statute are undisputed, an amendment of the declaration may be al- lowed, by adding a count declaring for the amount claimed, alleging the facts necessary to make out a case of statutory liability, and averring an agreement and the plaintiff's will- ingness to abate one half of the amount paid. Arlington v. Lyons, 131 Mass. 328 (1881). 7. If a verdict as affirmed and recorded does not state with technical accuracy the finding of the jury upon the issue tried, and the court can see how it should be corrected, it will reject what is surplusage and make it conform to the issue tried. Asliton v. Touhey, 131 Mass. 26 (1881). 8. The Superior Court has power, under its Tules, upon petition of a party to an action pending therein, and after notice to the ad- verse party, to order the record of a former action between the same parties to be com- pleted, and the judgment therein made up and entered; the judgment, when so recorded, takes effect from the date of the original judgment; and it is within the discretion of the court to allow the plaintiff in the pending action, in whose favor the original judgment was rendered, to file an amended declaration therein, counting upon that judgment. King T. Bumham, 129 Mass. 598 (1880). 9. The board of park commissioners, ap- pointed under St. 1875, c. 185, has power to amend its record of an order laying an assess- ment, if at the time of the amendment the board consists of the same persons who were members at the time of the making of the order, although one of them has been mean- while reappointed upon the expiration of his first term of office. Foster v. Park Commis- sioners, 131 Mass. 225 (1881> 10. A petition to the mayor and aldermen of a city, for the assessment of damages occa- sioned to the petitioner's land by the con- struction of a drain, contained no reference to any statute, except that it prayed that the damages should be assessed and paid over ac- cording to the provisions of a certain statute. Held, on a petition to the Superior Court, for the assessment of damages, in the nature of an appeal from the action of the mayor and aldermen, that the court had power to allow the petition to be amended, if the petitioner could maintain the petition under any statute applicable to the proceedings. Porter v. New- ton, 133 Mass. 56 (1882). 11. A petition to the Superior Court, for the assessment of damages for injury done to th,e petitioner's mill by the taking by the re- spondent of the waters of a stream, may be amended, under Pub. Sts. c. 167, §§ 41, 42, 85, so as to enable the petitioner to maintain his action for the cause for which it was in- tended to be brought, although a new petition would be barred by the statute of limitations. Sanger v. Newton, 134 Mass. 308 (1883). 12. If evidence is admitted, against the objection of the defendant, that it is inad- missible under the pleadings, and the judge presiding at the trial, after allowing the de- fendant's bill of exceptions, permits the plain- tiff to amend his declaration, such amendment will not be considered by this court in de- termining the admissibility of the evidence. Rogers v. Union Stone Co,, 130 Mass. 581 (1881). 13. Where husband and wife conveyed the wife's land, subject to a mortgage which the grantees agreed to pay, and a suit for breach of the agreement was brought in the name of the wife alone, and the case was fully tried upon the merits, — - Held, that plaintiff should be allowed to amend by joining her husband. Fenton v. Lord, 128 Mass. 466 (1880). 14. If the Pub. Sts. c. 167, § 85, apply to an amendment of a writ by correcting a cler- ical error in the name of the defendant, the only effect of an omission to give, to a mort- gagee of the property attached on the writ, notice of the application for leave to amend, is that he is not precluded from the right to con- test the effect of the amendment, in an action against the attaching officer for a conversion of the property. Diettrich v. Wolffsohn, 136 Mass. 335 (1884). 15. If a husband and wife are sued jointly on a contract made by her in the prosecution of a business carried on by her separately in this Commonwealth, no certificate having been filed by either as provided in the St. of 1862, c. 198, and a verdict is returned against them jointly, the plaintiff may apply to the court for leave to amend, by discontinuing as to one 41 APPEAL, I. 42 of the defendants, and to enter judgment against the other. Ridley v. Knox, 138 Mass. 83 (1S84;. 16. In an action on a policy of life insur- ance, payable if the person whose life was in- sured survived a certain day, brought by an assignee in his own name, in the Superior Court, that court ordered a verdict for the plaintiff, with interest from the day the policy was payable; and allowed a bill of exceptions, which showed that the insurer had made no contract with the assignee, and that the declaration did not allege any demand. Held, that the exceptions must be sustained, unless the plaintiff was allowed by the Superior Court to amend by substituting for his own name that of his assignor, as plaintiff, and would remit interest prior to the date of his writ. Pierce v. Charter Oak Lis. Co., 138 Mass. 151 (1884). 17. An action on an account annexed, for making machinery, was brought against A. and B. The plaintiff discontinued as to A. At the trial, it appeared that the machinery was furnished on the credit of A. alone, and judgment was ordered for B. The plaintiff then moved to amend, by striking out his own name as plaintiff, and substituting therefor the name of A. At the hearing upon this motion, it was found that B. had made no contract with the plaintiff, but there was evi- dence that B. had made a contract with A., which A. contended made B. liable to the plaintiff, either solely, as principal, or jointly with A. Held, that these facts would not au- thorize a finding that the amendment sought was to " enable the plaintiff to sustain the action for the cause for which it was intended to be brought," within the Pub. Sts. c. 167, § 42. Silver v. Jordan, 139 Mass. 280 (1885). 18. A judgment was obtained in another State in favor of A. for the benefit of B., A. having no beneficial interest in it. A. died soon after, and his widow, C, was appointed his executrix, and assigned the judgment to B. B. afterwards brought an action in the Superior Court on the judgment in the name of A. Held, that the Superior Court had au- thority to allow an amendment of the writ, substituting the name of C. as executrix for that of A., and stating that the action was brought for the benefit of B. Lewis v. Austin, 144 Mass. 383 (1887). ANIMAL. Of Impounding of Animals, see Impound- ing. Of Exemption from Levy, see Execution. Of Dogs, see Dog. Of injury to horse escaping upon railroad from highway, see Railroad, V. pi. 3. See also Cruelty to Animals ; Board OF Health. A city permitted, upon a public square, the erection of a booth for the exhibition of a " sacred ox." While the ox was being exer- cised upon the highway, he frightened a horse, whose owner thereby sustained injury. Held, that the city was not liable for the injury. Cole V. Neuiburyport, 129 Mass. 594 (1880). ANSWER. See Pleading. APPEAL. I. When an Appeal will or will not Lie. n. Time and Mode of Claiming, Al- lowing, AND Entering Appeals. III. Security for and Prosecuting Ap- peals. IV. Effect of an Appeal . Proceedings IN the Court above. v. Appeal in Criminal Cases. VI. Appeal in Equity. See Equity Pleading. I. When an Appeal will or will not Lie. 1. The exercise of the discretion of the Superior Court in refusing an allowance for counsel fees to one summoned as trustee under the trustee process, cannot be revised by the Supreme Judicial Court. Hawkins v. Graham, 128 Mass. 20 (1879). 2. No appeal lies from a judgment of the Superior Court in favor of the petitioner, on a petition by a widow to have land of her late husband set off to her under Gen. Sts. c. 90, § 15, and St. 1861, c. 164, § 1, or under St. 1880, c. 211, the judgment being merely that she is entitled to have her interest as- signed to her according to her petition. Such a judgment is not a final judgment. Elliot v. EUiot, 133 Mass. 555 (1882). 3. Under St. 1880, c. 18, dividing one town and incorporating another, and providing that in case said towns should not agree in respect to a division of debts, unpaid taxes, state or county taxes, or support of paupers, the Su- perior Court should, upon petition of either town, appoint three commissioners to hear the parties and determine the matters of differ- ence, that t^jeir award, being accepted by said court, should be final, and that the court might make any order or decree upon the award, but it should not be set aside except for fraud or manifest error, in which case the court might recommit the award or ap- point new commissioners, neither party has a right of appeal from the decision of the Supe- rior Court accepting an award of commission- ers pursuant to the statute. Cottage City v. Edgartown, 134 Mass. 67 (1883). 43 APPEAL, I. 44 4. The memorandum of a judge of the Superior Court, stating the grounds of his overruling a motion to set aside an award, is no part of the record; and the remedy of the party aggrieved is by bill of exceptions, and not by appeal. Standish v. Old Colony Rail- road, 129 Mass. 158 (1880). 5. An appeal lies to this court from an order of the Superior Court, granting a peti- tion for the removal of an action to the Cir- cuit Court of the United States. Ellis v. Atlantic §• Pacific Railroad, 134 Mass. 338 (1883). 6. Under St. 1873, c. 360, authorizing the Eastern Railroad Company to take land for a freight station, and providing that the general railroad acts shall be applicable to and govern the proceedings, except that, instead of the county commissioners, three commissioners shall be appointed by tlie Supreme Judicial Court to adjudicate the damages, from whose decision "an appeal to a jury shall lie" in behalf of any owner of land taken, "as is provided in case of lands taken for railroad purposes," the award of commissioners so ap- pointed is to be returned to this com-t ; and the application for a jury, by way of appeal from their decision, is to be made, and the trial by jury had, at the bar of this court. Wyman v. Eastern Railroad, 128 Mass. 346 (1880). 7. This court has no jurisdiction, under Gen. Sts. c. 118, § 16, of a petition in the nature of an appeal by a creditor from the decision of the court of insolvency granting a discharge to a debtor, although since St. 1879, c. 245, § 4, the creditor cannot impeach the validity of the discharge in an action at law. Kempton v. Saunders, 132 Mass. 466 (1882). 8. The step-mother of minor children, whose parents are both dead, and whose grandmother has been appointed their guardian by the Pro- bate Court, is not a person aggrieved by the decree within the meaning of Gen. Sts. c. 117, § 8, so as to entitle her to appeal therefrom. Lawless v. Reagan, 128 Mass. 592 (1880). 9. No appeal lies to this court, under Gen. Sts. c. 117, § 8, from a decree of the Probate Court, ordering that the account of an ad- ministrator be not allowed, because he has not charged himself with the amount due on a certain mortgage, but not ascertaining that amount, nor settling the account. Cook v. Horton, 129 Mass. 527 (1880). 10. Where the omission of one aggrieved by the decree of a single justice of the Su- preme Judicial Court to appeal from such de- cree within the time limited by law, has been occasioned, clearly, by nlistake, leave to appeal may be granted under Gen. Sts. c. 113, §§ 13, 14. McFeely v. Scott, 128 Mass.*16 (1879). 11. No appeal lies to the Superior Court from the judgment of a magistrate who dis- charges a debtor without an examination, and adjudges the creditor in default for not ap- pearing at the time and place fixed for the examination of the debtor upon his applica- tion for the poor debtor's oath, and who re- fuses to render a judgment upon charges of fraud filed. Gen. Sts. c. 124, § 32, in terms gives an appeal only when a hearing is had. Longley v. Cleaveland, 133 Mass. 256 (1882). 12. The parties to an action pending in the Municipal Court of the city of Boston agreed that the action might be discontinued without costs to the plaintiff, and judgment was en- tered accordingly. After the adjournment of that court without day, but within the time allowed for an appeal, the plaintiff presented to a judge of that court a paper repudiating the agreement, on the ground that it was ob- tained by fraud, and claimed an appeal to the Superior Court. The judge permitted the paper to be filed, and allowed the appeal ; and the case was entered in the Superior Court. Held, that that court had jurisdiction of the appeal. Powell v. Turner, 139 Mass. 97 (1885). 13. Under the Pub. Sts. c. 156, § 9, giving this court power to allow a probate appeal to be entered where a party aggrieved by a de- cree of a probate court omits to prosecute it, " without default on his part," and where " it appears that justice requires a revision of the case," a justice of this court, on a petition for leave to enter an appeal from a decree admitting an instrument to probate as a will, found that' the party was not in default, and reported the case for the consideration of the full court, stating that the petitioner's evi- dence tended to show that the testator was of unsound mind at the time of executing the will, and that the respondent put in evidence to the contrary; and that the judge ruled that the petitioner was bound to show more than that the case was a debatable one, and such as might fairly have been submitted to a jury, if duly entered; that the petitioner should prove to the satisfaction of the court that jus- tice required a revision of the case; and that the evidence of the petitioner failed to do this. Held, that no error appeai'ed. Capen v. Skin- ner, 139 Mass. 190 (1885). 14. If a debt«r, against whom, upon his application to take the oath for the relief of poor debtors, charges of fraud are filed by his creditor under the Pub. Sts. c. 162, is found guilty by the magistrate of one of such charges, and not guilty of the other, and is sentenced accordingly, and does not appeal from the. sentence, the creditor is not entitled to appeal therefrom, although the charges are under different clauses of § 17. Smith v. Dickinson, 140 Mass. 171 (1886). 15. A taxable inhabitant of a town, owning land abutting upon a highway therein, which crosses a railroad by a bridge, in which and its approaches the county commissioners have, upon the petition of the selectmen of the town, ordered certain alterations to be made, is not a " party aggrieved " by the decision of the county commissioners, within the mean- ing of the St. of 1882, c. 135, § 1, giving to such party a right of appeal therefrom to the board of railroad coinmissioners, although he appeared before the county commissioners, and was heard by them; and the railroad commissioners may be restrained by writ of prohibition, at the instance of the selectmen of the town, from assuming jurisdiction of an 45 APPEAL, IL, III. 46 appeal by such person. Chandler v. Railroad Commissioners, 141 Mass. 208 (1886). 16. I£ the final account of the executor of the will of A. is allowed by the Probate Court, and an administrator de bonis non of A.'s estate, assents to the account as allowed, the debts and charges against the estate having been paid, one entitled to a share of the re- version in a trust fund to be accounted for is a " person aggrieved," within the meaning of the Pub. Sts. c. 156, § 6, giving such person a right to appeal from the decree of the Pro- bate Court. Pierce v. Gould, 143 Mass. 234 (1887). > 17. After an action had been tried in a municipal court upon the merits, and a find- ing made for the plaintiif in damages, it was continued for judgnient to await the disposi- tion of another action. After the disposition of that action, the plaintiS filed a motion " to have judgment entered in the above-entitled action," on which was indorsed, signed by the defendant's attorney, "It is agreed that this motion may be filed and allowed." Judg- ment was entered, and the defendant appealed to the Superior Court. In that court, the plaintiff moved that the appeal be dismissed, on the ground that the judgment appealed from was rendered by the defendant's con- sent. The court dismissed the appeal. Held, that the judgment of the municipal court was not such a judgment by the consent of "the defendant that he was not aggrieved by it and could not appeal from it. Emery v. Seavey, 144 Mass. 403 (1887). n. Time and Mode of Claiming, Allow- ing, AND Entering Appeals. 1. Notice must be given to the state board of health of an appeal from an order of that board, under St. 1878, c. 183, § 6. Pebbles V. Boston, 131 Mass. 197 (1881). 2. Under the Pub. Sts. c. 155, §§ 28, 29, a trial justice is not authorized to extend the time for perfecting an appeal until such time as he shall notify the appellant to appear be- fore him; and if subsequently, upon being notified, the appellant appears before the jus- tice and recognizes with surety, no notice hav- ing been given to the appellee, the appeal will be dismissed on motion. Parker v. Snow, 143 Mass. 423 (1887). III. Security for and Prosecuting Ap- peals. 1. If a party who appeals from a judgment of an inferior court does not file a bond with surety to the adverse party, as required by Pub. Sts. c; 154, § 52, and St. 1882, c. 95, § 1, conditioned to enter and prosecute his appeal, and to satisfy any judgment which may be entered against him in the Superior Court, on the appeal, for costs, the Superior Court has no jurisdiction of the action, and it may be dismissed at any time before judg- ment, although the appellee has entered a general appearance in the Superior Court. Santom v. Ballard, 133 Mass. 464 (1882). 2. Under Gen. Sts. c. 137, § 9, as amended by St. 1871, c. 315, § 2, a judgment of the Municipal Court of Boston, for possession of the demanded premises and costs, may be en- forced by scire facias upon the bond given on an appeal from that judgment to the Supe- rior Court. Melvin v. Bird, 131 Mass. 561 (1881). 3. In a scire facias upon the bond given on an appeal from a judgment, in an action under Gen. Sts. c. 137, for possession of the de- manded premises and costs, neither an assign- ment by the plaintiff of his interest in the premises, nor an adjudication of insolvency of the principal in the bond, made before the date of the judgment in the former action, and not pleaded in that action, will affect the va- lidity of that judgment, or the liability of the principal or sureties by reason thereof. Mel- vin V. Bird, 131 Mass. 561 (1881). 4. A bond, which was not dated, and did not contain an approval of the adverse party or of the justice, recited in its condition an appeal from a j udgment given by a district court in favor of the plaintiff in the action, but did not state against whom it was given, when it was rendered, or the amount thereof, either in debt or costs. The record of the district court showed that the appellant recog- nized before the court with sufficient sureties, but .made no mention of any bond. Held, that the bond did not comply with the require- ments of the Pub. Sts. c. 154, § 52, and the St. of 1882, c. 95; and that the appeal was rightly dismissed. Putnam v. Boyer, 140 Mass. 235. 5. A bond to dissolve an attachment in an action brought in a district court, which is not approved as required by the Pub. Sts. c. 161, § 122, does not relieve the principal, upon appealing from a judgment against him in such action, from the necessity of filing a bond with surety to prosecute his appeal, in accordance with the Pub. Sts. c. 154, § 52, and the St. of 1882, c. 95; and, if such bond is not filed within the time ordered by the court, the judgment is not vacated, but remains in full force, and the plaintiff may maintain an ac- tion against the principal and sureties on the bond to dissolve the attachment. Fogel v. Dussault, 141 Mass. 154 (1886). 6. A bond, without a surety, filed by an appellant from the judgment of a district court, is not a sufficient compliance with the requirements of the Pub. Sts. c. 154, § 52, and the St. of 1882, c. 95, although the bond is approved in writing by the attorney of the appellee; and the Superior Court acquires no jurisdiction of the appeal. Henderson v. Benson, 141 Mass. 218 (1886) . 7. If in an action on the Pub. Sts. c. 175, to recover possession of certain premises, brought in a district court, which has jurisdiction of the cause and of the parties, judgment is ren- dered for the plaintiff, from which the defend- ant appeals to the Superior Court, and gives a bond, with sureties, to prosecute his appeal, and the action is entered and tried in the 47 APPEAL, IV. 48 Superior Court, which affirms the decision of the district court, to ■which exceptions are taken, heard, and overruled in this court, and final judgment for the plaintiff is entered in the Superior Court for possession of the premises, it is not open to the ]nincipal or the sureties, in an action upon the bond, to ques- tion the validity of the judgment on the ground that the appeal should have been com- pleted by a recognizance instead of a bond. Granger v. Parker, 142 Mass. 186 (1886.) IV. Effect of an Appeal; Proceedings IN THE Court above. 1. If, in a municipal court in which no trial by jury can be had, an issue of fact is joined upon a plea in abatement, and judgment ren- dered for the plaintiff, and the defendant ap- peals to the Superior Court, he is entitled to a trial by jury in that court upon the same issue, but upon that issue only, unless that court orders or permits him to plead anew. O'Loughlin v. Bird, 128 Mass. 600 (1880). 2. An appeal from the clerk to a judge of the same court in the matter of taxing costs after judgment does not vacate the judgment; but, if waived before hearing, leaves the judgment in force as of the day when it was entered. Melvin v. Bird, 131 Mass. 561 (1881). 3. The omission of a debtor, at the trial of an appeal by him from the judgment of a magistrate upon charges of fraud under Gen. Sts. c. 124, to file in court copies of the charges and the plea thereto, and of his ex- amination before the magistrate, does not entitle the cieditor, after proceeding to trial without raising any objection on this ground, to have the debtor defaulted. Morse v. Dayton, 128 Mass. 451 (1880). 4. It is within the authority of this court, as the supreme court of probate, at the hear- ing upon an appeal from a decree of the Pro- bate Court allowing the account of a guardian, to inquire into the propriety of an investment objected to by the appellant, and, upon being satisfied that it has been negligently and im- providently made, and that the subject matter of it was of less value than as stated in the schedule annexed to the account, to charge the guardian with the full amount thereof in money. Kimball v. Perkins, 180 Mass. 141 (1881). 5. If an appeal from a decree of the Probate Court appointing a person administrator of an estate, upon his petition alleging that he was next of kin, fails because the appellant does not prove that he is aparty entitled to appeal, and is dismissed upon that ground only, the decree stands as if not appealed from; and it is within the power of the Probate Court, upon the petition of a public administrator, to re- voke and annul that decree. Cleveland v. Quilty, 128 Mass. 578 (1880). 6. Upon an appeal from the decree of the Probate Court upon a guardian's final account, a decree of distribution previously made upon the petition of the administrator of the estate from which the ward's property was derived cannot be impeached, though obviously erro- neous. Pierce v. Prescotl, 128 Mass. 140 (1880). 7. Where a case is appealed from the Mu- nicipal to the Superior Court, the defendant is not limited to the issue made in the court below. Though his answer below consisted of a general denial merely, he may answer and contend in the Superior Court that the suit was prematurely brought. Pels v. Raymond, 134 Mass. 376 (1883). 8. If the record on which an appeal from a decree of a justice of this court, affirming a decree of the Probate Court, states a fact essen- tial to the jurisdiction of the Probate Court, the appellant cannot contend in this court that the fact is otherwise, and move to dismiss the proceeding in the Probate Court. Robin- son V. Robinson, 129 Mass. 539 (1880). 9. If the defendant files a declaration in set-off, appeals from a judgment against him, and enters into a recognizance to prosecute his appeal, the filing by the plaintiff, after the entry of the appeal, of an answer to the decla- ration in set-off, is a waiver of any defect in the form of the recognizance. Norris v. Mun- roe, 128 Mass. 386 (1880). 10. An objection to a declaration, not speci- fied in a demurrer thereto, is not open at the hearing in this court on appeal. Smith v. Milton, 133 Mass. 369 (1882). 11. A question, not specified as one of the reasons of appeal from a decree of the Probate Court, is not open at the liearing of the appeal in this court. Murphy v. Walker, 131 Mass. 341 (1881). 12. A motion to dismiss an appeal from a judgment of an inferior court, on the ground that no bond to the adverse party has been filed, as required by the Pub. Sts. c. 154, § 52, and the St. of 1882, c. 95, § 1, comes too late, after the first term in the Superior Court, al- though the bond filed contains formal defects. Wheeler §• Wilson Manuf. Co. v. Burlingham, 137 Mass. 581 (1884). 13. Upon a judgment in replevin in favor of a party for part of the chattels, and against him for the resi.due, his appeal from the judg- ment against him does not reopen the judg- ment in his favor. Vinal v. Spofford, 139 Mass. 126 (1885). 14. Where the declaration in an action of contract contains two counts, on one of which judgment is entered for the plaintiff and on the other for the defendant, it seems that an appeal by one party only does not reopen the judgment rendered in his favor. Shepard v. Lavm-ence, 141 Mass. 479 (1886). 15. If the papers in a case which comes be- fore this court on appeal are copies of the pleadings, the report of an auditor, and the judgment of the court, the auditor's report is not properly before this court, unless it ap- pears, in some way, that it was made a part of the record of the court below. Davis v. Gay, 141 Mass. 531 (1886). 16. The record of a district court, in which an action was tried, recited that the party 49 AQUEDUCT. 50 against -whom judgment was rendered ap- pealed to the Superior Court, and filed a bond with sufficient sureties to prosecute his appeal, " not approved or disapproved by said court, as no motion was made by either party re- questing approval or disapproval." Held, that there was a sufficient compliance with the re- quirements of the Pub. Sts. c. 154, § 52, and the St. of 1882, c. 95, to give jurisdiction to the superior court. Rawson v. Dofner, 143 Mass. 76 (1886). V. Appeal in Criminal Cases. 1. Formal objections to a complaint, which are not taken in the lower court are not open in the Superior Court on appeal. Common- wealth V. Donahoe, 130 Mass. 280 (1881). 2. A complaint which does not set forth the facts necessary to constitute an offence, except by reference to a statute, the year of which is wrongly given, will not support a conviction, and the obj(iction may be taken for the first time at the trial in the Superior Court on ap- peal. Commonwealth v. Washburn, 128 Mass. 421 (1880). 3. The attestation by a magistrate at the end of a record, including a complaint and warrant not separately attested, sent up on appeal from him to the Superior Court, is a sufficient attestation of all the proceedings. Commonwealth v. Wait, 131 Mass. 417 (1881). 4. A person was convicted of maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, and appealed. His recognizance, dated in March, 1885, i-ecit- ed that he appealed " to the Superior Court, to be holden at N. in the county of Essex on the second Monday in May," and was condi- tioned to appear at the court appealed to. The St. of 1885, c. 191, which was approved in April, 1885, provided that "the Superior Court for the county of Essex, heretofore held on the second Monday of May, shall hereafter be held on the first Monday of May;" and that all writs, processes, and recognizances made re- turnable to the court as formerly held should be returnable to the term of the court as changed. The court was in session on the second Monday in May. Held, that the court had jurisdiction of the appeal. Commonwealth V. Parker, 140 Mass. 489 (1886). 5. If, at the time of taking an appeal to the Superior Court in a criminal case, a statute has been enacted and approved, but has not taken effect, providing for a new term of the Supe- rior Court, to be held at an earlier day than the term then provided for by law, an ap- peal to such new term is not a ground for an arrest of judgment in the Superior Court. Commonwealth v. Stevens, 142 Mass. 457 (1886). 6. The word "judgment" in the Pub. Sts. c. 154, § 61, requiring the clerk of the Muni- cipal Court of the city of Boston, when an ap- peal is taken in a criminal case to the Superior Court, to transmit a copy of the judgment, means the substance of the complaint and the judgment entered upon it. Commonwealth v. Keenan, 140 Mass. 481 (1886). APPORTIONMENT. See Capital and Income ; Landlord and Tenant, IV. APPROPRIATION OF PAYMENTS. See Payment. AQUEDUCT. For Public Aqueducts, see Watekwokks. 1. The owners of three lots of land, A, B, and C, constructed, in 1844, an aqueduct from a spring on lot C to the respective build- ings on each lot, but did not define their rights to the use of the water. In 1869, the buildings on lot C were removed, and in 1871 the use of the water on that lot was discon- tinued. In 1877, all the lots were owned by the same person, and he conveyed lot A and the house thereon, which for about nine years had been occupied by the plaintifE and others as tenants, to the plaintiff, by a deed which gave him the right to take water from the spring "by the aqueduct as now laid from said house to said spring, to the extent and as has been the custom of the occupants of the house hereby conveyed, grantee not to use more than one fourth of the water conveyed in said aqueduct for the use of the occupants of said house." Held, that the "custom" referred to was that of the tenants, and not that of the original builders of the aqueduct; that the grantee had the right to the use of the water, not exceeding one foui-th of the whole capacity of the aqueduct, in the same quantity and with the same force as such ten- ants had used it; and could maintain a bill in equity against his grantor, who continued to own lot B, and a pei-son to whom lot C had been conveyed, after the deed to the plaintiff, with a right to use the water, to restrain them from interfering with such use. Held, also, that the plaintiff was not estopped to assert his rights by the fact that he had sold lead pipe to the grantee of lot C, with the knowl- edge that he intended to use it to connect his house with the aqueduct. Wright v. Newton, 130 Mass. 552 (1881). 2. The Pub. Sts. c. 110, §§ 15, 16, author- izing a city or town in which an aqueduct is situated to put conductors into the pipes for the purpose of drawing water therefrom in case of fires, and empowering the selectmen to make provisions for taking water for protec- tion against fire, have no application to a water company whose charter does not confer 61 ARBITRAMENT AND AWARD, I,, II, 62 a similar power upon tlie town in which it is situated, or upon the selectmen. Smith v. Dedham, 144 Mass. 177 (1887). ARBITRAMENT AND AWARD. I. Submission; Parties and Subject Matter. II. Arbitrators. III. Award. I. Submission; Parties and Subject Matter. 1. An agreement to submit to arbitration, the effect of which is to oust the courts of jurisdiction, is invalid. Vass v. Wales, 129 Mass. 38 (1880). 2. The memorandum of a judge of the Su- perior Court, stating the grounds of his over- ruling a motion to set aside an award, is no part of the record; and the remedy of the party aggrieved is by bill of exceptions and not by appeal. Standish v. Old Colony Rail- road, 129 Mass. 158 (1880). 3. Land was conveyed to a trustee in trust to allow A. to occupy the land during the life of the grantor, A. to support the grantor dur- ing his life, and, in case A. should be unable or neglect to fulfil his obligations, the trustee to appoint arbitrators to pass upon the mat- ters submitted to them, with power to deter- mine the trust, if requested by either party, in which case the trustee should hold the land for the benefit of the grantor. Held, on a ■writ of entry by the trustee against A. , after an award of arbitrators determining the trust, that parol evidence was inadmissible to show that A. had fulfilled the obligations imposed on him by the deed. Cook v. Gardner, 130 Mass. 318 (1881). 4. If, after a loss under a policy of insur- ance against fire, the assured is induced to sign an agreement to submit the appraisal of the loss to arbitration, by the representation of the agent who took the risk that the policy requires such an appraisal, which in fact it did not require, but the representation is made without fraudulent purpose, and the assured has the opportunity to examine the policy be- fore signing the submission, and neglects to do so, he is bound by the award made under the submission. Wheeler v. Waterlown Ins. Co., 131 Mass. 1 (1881). 5. A party to a submission to arbitration, under Gen. Sts. c. 147, cannot, after his mo- tion to have an award made thereunder set aside has been overruled, assign the same reasons in support of a motion to have the submission set aside. Cowley v. Dobbins, 131 Mass. 327 (1881). 6. The refei-ence of a case, after its enti-y in court, by agreement of parties and by a rule of court in common form, to an arbitra- tor, is not a discharge of the sureties on a bond given to dissolve the attachment in the action, nor a waiver of the plaintiff's right to the special judgment authorized by St. 1875, c. 68, § 1, in cases where the defendant has been adjudged a bankrupt. Seavey v. Beckler, 132 Mass. 203 (1882). 7. Evidence that a party to a cause, which had been submitted to a referee by agreement of parties and under a rule of court, suffered the hearing to proceed without objection after he knew that the referee had conversed with the adverse party and investigated some of the facts ex parte, will warrant a finding that he waived the irregularity; and, after the award of the referee has been made, it is too late for him to object, on this ground, to its accept- ance. Duckworth v. Diggles, 139 Mass. 51 (1885). 8. An agreement in a submission to arbitra- tion, that the arbitrators may proceed ex parte if either party neglects to appear, does not make the submission irrevocable. Boston If Lowell Railroad v. Nashua §• Lowell Railroad, 139 Mass. 463 (1885). 9. The directors of a corporation, which was a party to a submission to arbitration, voted, on July 5, to revoke said submission .unless the arbitrators would make a special report of their findings of fact and rulings of law in reference to a certain claim ijiade by the cor- poration. Subsequently, the president of the corporation signed a paper with the name of the corporation, in terms absolutely revoking the submission. The record of a meeting of the directors stated that the president, hav- ing laid before the board a copy of an in- strument of revocation of the submission, "said submission being executed by him in behalf of this company, in pursuance of the directors' vote of July 5th last, it was voted that the course so taken by him be ratified and approved, and that the directors will treat the said submission as no longer in force." Held, that the revocation was unconditional. Boston §• Lowell Railroad v. Nashua §• Lowell Railroad, 139 Mass. 463 (1885). 10. A claim against a city for damages oc- casioned- to land by changing the grade of a street cannot be submitted to arbitration un- der the Pub. Sts. c. 188. Osborn v. Fall River, 140 Mass. 508 (1886). II. Arbitrators. 1. Parol evidence is competent to show that in an action of tort in the nature of trespass quare clausum fregit, the fact of title was tried and passed upon by a referee and made the basis of his finding, the pleadings in the case not showing on what ground the judgment was based. White v. Chase, 128 Mass. 158 (1880). 2. An award made by three arbitrators, two of whom had prejudged the case on ex parte testimony, is not binding upon a party to the submission to arbitration, especially if no no- tice of any meeting of the three is given to him. Hills v. Home Ins. Co., 129 Mass. 345 (1880). 63 ARBITRAMENT AND AWARD, III. 54 3. In an action upon an award of arbitra- tors, under a submission to them of all mat- ters in dispute between the parties, evidence is admissible in defence to show that the arbi- trators refused to consider and pass upon a claim submitted to them by the defendant. Gaylurdv. Norton, 130 Mass. 74 (1881). 4. In the absence of a provision concerning costs and expenses in a submission to arbitra- tion, under the Gen. Sts. c. 147, the arbitrator has authority by § 11 to award compensation for his own services and the costs of court, but has no authority to award that the losing party shall pay the counsel fees of the other party ; and such erroneous part may be stricken out, without invalidating the rest of the award. Warner Y. Collins, 135.Mass. 26 (1883). 5. An arbitrator, appointed under a rule of court, is not liable to an action by one party to the action referred to arbitration, for fraud- ulently inducing, in pursuance of a conspiracy with the attorney of the other party to the ac- tion so referred, the other arbitrators to unite with him in an unjust award in favor of the latter party. Hoosac Tunnel Dock Co. v. O'Brien, 137 Mass. 424 (1884). III. AWAKD. 1. If a person agrees with another to pay for an article if it accomplishes a particular result, the test to be made by a third person, the decision of the latter is in the nature of an award, and evidence is inadmissible to show that his decision was erroneous. Robbins v. Clark, 129 Mass. 145 (1880). 2. A. brought an action in two counts, one in tort and one in contract, against B., for damages caused by B.'s dam setting the water back upon A.'s mill. Subsequently the par- ties, by an agreement under seal, submitted " all matters covered by the suit " to a referee, who made an award in favor of A., giving him damages for setting the water back upon his wheel for six years prior to the date of his writ. A. afterwards brought another action with similar counts against B. for a continu- ance of the nuisance. It appeared at the trial, that the award of the referee was for damages claimed upon the count in tort; and that the dam was kept up to the same height as at the date of the former action. Held, that the- award established conclusively that the dam was kept up to the height it then was without right, and was a nuisance; and that these facts could not be controverted by B. and his privies in this action. Prentiss v. Wood, 132 Mass. 486 (1882). 3. It is no objection to the acceptance of an award made pursuant to a submission to arbi- tration, under the Gen. Sts. c. 147, that it does not appear on the face of the award that the parties were heard, or had opportunity to be heard, by the arbitrator. Warner v. Col- lins, 135 Mass. 26 (1883). 4. The parties to a submission to arbitra- tion may, before the award, agree to waive irregularities on the part of the arbitrators in obtaining information about the matter sub- mitted to them, without knowledge of what the irregulai'ities are ; and the unsuccessful party cannot rely upon such irregularities in defence to an action upon the award. Cogs- well V. Cameron, 136 Mass. 518 (1884). 5. A. and B. executed a written agreement to submit to referees the settlement of all matters relating to a copartnership formerly existing between them, whicli provided that, as soon as an accurate inventory of all the personal property of the copartnership could be made to the satisfaction of the referees, A. should convey to B. all his interest in all the copartnership property, and his interest in an existing lease belonging to the copartnership ; that B. should personally assume and pay all the copartnership debts, and should agree in writing to discharge A. from all liabilities therefor; and that each should pay to the other whatever sum he might be required to pay by the referees. The inventory was taken to the satisfaction of the referees ; A. 's inter- est in the property was conveyed to B., who took possession of it as his own ; and B.'s agreement to assume the debts of the copart- nership, and to indemnify A. from all liability therefor, was executed and delivered. Subse- quently, but after the referees had heard the parties, their evidence, and the arguments of counsel, and had held several meetings for consultation, B. gave a written notice, under seal, that he revoked "all authority to said referees to act under the submission contained in said agreement." Afterwards the referees executed and published an award, in which they determined that B. should pay A. a cer- tain sum. Held, that B. was not entitled to revoke the suLbmission, and that the award was valid. Haley v. Bellamy, 137 Mass. 357 (1884). 6. A supplementary award of arbitrators, rendered without the knowledge of one of the parties to the submission, and in his absence, after the expiration of the time within which the original award was to be made and " re- ported," which award, after it had been so made and reported, was to be conclusive, is invalid. Shurileff v. Parker, 138 Mass. 86 (1884). 7. An agreement was made in pais by A. and B. to submit to arbitration " all claims, demands, and controversies " which were the subject matter of an action for slander brought by A. against B., which was then pending in court, and which had been twice tried; " also all questions as to costs, expenses of said suit, and damages." B. gave a bond to perform and keep the award made by the arbitrators. The award, after finding that the charges which had been made by B. against A. were unsustained, expressed re- gret that B. is " to be holden for the pecuni- ary responsibilities growing out of the case," provided, first, that " all expenses incident to the failure of the hearings before the arbitra- tors" on a day named "must fall upon the plain tifE;" and proceeded as follows: "Sec- ond, owing to the statements made by coun- sel for the plaintiff, we dismiss the case with- out assessment of damages. Third, aU costs, 55 ARREST. 56 past and present, incurred in the trial of this case, shall be met by the defendant according to the established usage of our civil courts." A.'s legal costs in said action, taxed as if he had prevailed therein, amounted, at the date of the hearing before the arbitrators, to a cer- tain sum, and the costs of his witnesses before the arbitrators amounted to a certain other sum. Held, in an action on the award, that A. was entitled to recover of B. the former sura, but not the latter. Shurtleff \. Parker, 138 Mass. 86 (1884). 8. An award stated that it was agreed by the parties that it was desirable that the arbi- trators should fii'st hear and determine certain specified claims of A., one of the parties, be- fore entering upon a hearing of any other claims of either party ; and that the arbitra- tors proceeded to hear and determine these claims, and on a certain day " made their final award and determination in respect to said claims, and announced the same to the said par- ties in the words following." Then followed the finding that these claims were not allowed. The award further stated, that the hearing of any other claims was, by agreement of parties, adjourned to a certain day; that on that day A. filed a paper assuming to revoke the sub- mission, and withdrew; that the arbitrators went on and heard the claims put in by B., the other party, and " do now, in addition to their final award and determination," award and determine that A. is not entitled to re- cover any sum of B. by reason of any of the claims specifically made by A., or embraced by the agreement of reference against B., and that B. is entitled to recover certain sums against A. Held, in an action on the award by B. against A., that the finding first made by the arbitrators was not such a final award that A. could not revoke the submission to arbi- tration before the final award was made. Bos- ton Sj- Lowell Railroad v. Nashua Sf Lowell Rail- road, 139 Mass. 463 (1885). 9. A., B., and C. were copartners under the name of the H. Company; and B. and C. were copartners under the name of B. and Com- pany. All claims between A. and the firm of B. and Company, and all claims between the parties arising out of the business of the H. Company, were included in a submission to arbitration. A bill headed " H. Company to B. and Company, Dr.," upon which several payments had been made, leaving a balance due, was presented to the arbitrator, and, by inadvertence, was assumed by him to be a bill against A,, when in fact it was against the H. Company, A. stating to him that the balance shown was correct. The arbitrator made an award in A.'s favor, charging him with the balance of this bill, and B. and C. paid A. the amount awarded; but, if the arbitrator had noticed that the bill was against the H. Com- pany, and not against A., his award would have been different. Held, that there was such a mistake of fact by the arbitrator as to vitiate the award. Held, also, that an offer by A. to return to B. and C. the amount paid by them, or to give them credit for it, as they might prefer, was all that could be required of him before bringing an action upon his original claim. Barrows v. Sweet, 143 Mass. 316 (1887). 10. Under the Pub. Sts. c. 188, §§ 2, 5, 9, an award of arbitrators must be returned to the Superior Court within the time specified in the submission; and, if such time is ex- tended by an agreement in writing, signed by the parties, but not acknowledged before a justice of the peace, an award returned within the time so extended, but after the time lim- ited in the submission, is invalid, and the Superior Court has no jurisdiction to accept it. Bent v. Erie Telegraph Co., 144 Mass. 165 (1887). ARMY. See SoLDiEB. AB.REST. Of arrest on execution, see Execution, II. See also Escape; False Imprisonment; Poor Debtor. 1. A husband may be lawfully arrested on an execution issued upon a decree for alimony. Foster v. Foster, 180 Mass. 189 (1881). 2. The provision of Gen. Sts. c. 124, § 8, that " no arrest shall be made after sunset, unless specially authorized by the magistrate making the certificate," does not apply to an arrest upon an execution for costs only. Stone's case, 129 Mass. 156 (1880). 3. A debtor who has been illegally arrested does not, by recognizing with surety before the magistrate authorizing the arrest, submit- ting to examination, and taking the poor debtor's oath, waive the illegality of his ar- rest. Carleion v. Akron Sewer Pipe Co., 129 Mass. 40 (1880). 4. The affidavit made by a creditor, upon an application to a magistrate for a certificate authorizing the arrest of his debtor, included the first and fifth charges specified in the Pub. Sts. c. 162, § 17. No notice was issued to the debtor ; and the magistrate certified that, after due hearing, he was satisfied there was reasonable cause to believe that the charge made in the affidavit was true, and he au- thorized an arrest accordingly. Held, that the certificate of the magistrate referred only to the fifth charge specified in the statute. Way v. Brigham, 138 Mass. 384 (1885). 5. If an action is brought upon a judgment founded on a debt which was contracted with an intention not to pay it, the obtaining of the judgment does not exonerate the debtor from liability to arrest under the fifth charge specified in the Pub. Sts. c. 162, § 17. Way V. Brigham, 138 Mass. 384 (1885). 6. Under the Pub. Sts. c. 162, an infant is not liable to arrest for debt upon a civil pro- cess. Cassier's case, 139 Mass. 468 (1885). 67 ASSAULT AND BATTERY, I. 58 7. A police officer, arresting a person ■with- out a warrant, under the Pub. Sts. c. 207, § 25, for being intoxicated in a public street, is not liable criminally therefor, if he acted in good faith, and had reasonable cause to be- lieve such person to be intoxicated, although he was not in fact intoxicated. Commonwealth V. Cheney, 141 Mass. 102 (1886). 8. If a person, who has been arrested by a police officer without a warrant, under the Pub. Sts. e. 207, § 25, for being intoxicated in a public place, consents to his discharge from custody without a complaint being made against him, intending thereby to release any damages on account of a failure to make the complaint, and such agreement is fairly and intelligently made, he cannot maintain an ac- tion against the officer for an assault and false imprisonment. Caffrey v. Drugan, 144 Mass. 294 (1887). AKKEST OF JUDGMENT. See Judgment. ARSON AND OTHER BURNING. 1. An indictment on Gen. Sts. c. 161, § 1, for burning the dwelling-house of another, is not sustained by proof that the defendant burned the house by the owner's procurement, to enable him to obtain money from an in- surer. Commonwealth v. Makely, 131 Mass. 421 (1881). 2. An indictment under Gen. Sts. c. 161, § 2, which prescribes a penalty for wilfully and maliciously burning in the night-time the manufactory of another, " being, with the property therein contained, of the value of one thousand dollars," alleged that the defendant, at a time and place named, in the night-time, "feloniously, wilfully, and ma- liciously did burn a certain manufactory, used for the manufacture of fishpoles, the same being, with the property therein contained, of the value of one thousand dollars, of the prop- erty of one P." It appeared at the trial that the building burned was the property of P. , and was of the value of four hundred dollars; that the personal property contained in the building belonged to one B., excepting prop- erty of a small amount in value which belonged to the defendant; and that the prop- erty belonging to B. was of the value of one thousand dollars. Held, that there was not a fatal variance between the allegations and the proof. Commonwealth v. BraUey, 134 Mass. 527 (1883). 8. The first count of an indictment charged that the defendant, at a time and place named, " a certain building, to wit, an eleva- tor building there situate, and then and there the property of one A., feloniously, wilfully, and maliciously did set fire to, burn, and con- sume." The second count charged that the defendant, at the same time and place, " a certain building there situate, to wit, a build- ing then and there used for shops, mechanics' workshops, and for an elevator, and then and there called the elevator building, and tlien and there the property of one A., feloniously, wilfully, and maliciously did set fire to, burn, and consume." Held, that the two counts did not appear to describe different offences ; and that St. 1861, c. 181, requiring an averment that the different counts are different descrip- tions of the same act, did not apply, that statute being intended to prevent misjoinder; but not slight verbal changes in the descrip- tion of property when the substantial identity was not affected. Commonwealth v. Allen, 128 Mass. 46 (1879). 4. At the trial of an indictment for burning a building in L., it appeared that the fire was discovered at about half-past six o'clock in the morning; and the defendant contended that he left L. at ten o'clock on the previous night, and returned there about eleven o'clock on the day of the fire. A witness for the govern- ment testified that he saw the defendant at the fire about eight o'clock; and, against the defendant's objection, was allowed to testify to a conversation which he then had with him. Held, that the defendant had no ground of exception to the admission of the conversa- tion. Commonwealth v. Allen, 128 Mass. 46 (1879). 5. At the trial of an indictment for burning a building in a certain town, the evidence tended to show that the fire was of incendiary origin. , The defendant ofi'ered to prove that there were two other fires of incendiary ori- gin in the same neighborhood in that town, shortly before the burning alleged in the indict- ment; and contended that the three fires were set by the same person, and by some person other than the defendant. Held, that the evidence offered was rightly excluded. Com- monwealth V. Gauvin, 143 Mass. 134 (1886). 6. At the trial of an indictment for ai'son, alleging that the building burnt was owned by the N. Company, and occupied as a ware- house by the W. Company, a registered copy of the deed to the N. Company is admissible, and, together with evidence that the N. Com- pany had orally leased the building to the W. Company, is sufficient proof of the ownership and possession of the building alleged in the indictment. Commonwealth v. Preece, 140 Mass. 276 (1885). ASSAULT AND BATTERY. I. Indictment. II. Civil Action. I. Indictment. 1. Where an indictment contain.s every ele- nient of a formal and substantial charge of the offence of assault and battery, although fail- ing, possibly, to charge the aggravated offence 59 ASSAULT AND BATTERY, I. 60 of cutting, slitting, or mutilating the nose or lip, created by Pub. Sts. c. 20'2, § 19, a mo- tion to quash, and a motion for leave to plead specially to the charge of assault and battery, are rightly overruled. Commonwealth v. BLaney, 133 Mass. 571 (1882). 2. A parent, to ■whom the custody of his child has been awarded upon the termination of a divorce suit, may be convicted of an as- sault and battery, if, in endeavoring to effect an entrance into a house in which the child has been placed, for the purpose of obtaining possession of the child, he uses intentional force upon the person of the occupant of the house, in order to overcome resistance by the latter to his entrance. Commonwealth v. Beals, 133 Mass. 396 (1882). 3. It is no defence to an indictment for an assault upon a child with intent to cai-nally know and abuse her, that the defendant, in making the assault, threw the child into such a position that it was impossible for him to accomplish his purpose of ravishing her. Commonwealths. Shaiu, 134 Mass. 221 (1883). 4. A conviction cannot be had of an as- sault with intent to ravish, where the indict- ment, though properly charging an assault, is defective in not distinctly and foi'mally al- leging whom the defendant intended to rav- ish. Such an indictment, however, cannot be quashed on motion, and, if a motion to qiiash is overruled, and the judge, further, errone- ously rules that the jury may find a verdict of guilty of an assault with intent to ravish, whereupon the defendant withdraws his plea of not guilty and pleads guilty in order that the question of the sufficiency of the indict- ment to warrant a conviction of the aggra- vated offence may be passed upon by this court, he will not be deemed by his plea of guilty to have waived his exception to the rul- ing, and he can be sentenced only for a simple assault. Commonwealth v. Kennedy, 131 Mass. 584 (1881). 5. At the trial of an indictment charging an assault upon one who testifies thereto, evi- dence is incompetent, for the purpose of show- ing a propensity on the part of the witness to lie, that she had lied on other occasions. Commonwealth v. Kennon, 130 Mass. 39 (1880). 6. At the trial of an indictment in one count for an assault with a knife, with intent to kill and murder, the juiy agreed upon their ver- dict after the court had adjourned, and, on the coming in of the court on the next day, a sealed verdict in the following form was banded to the clerk: " In the above-entitled case the jury say the defendant is guilty on the first count of an assault, not guilty on the second count. ' ' The clerk read this paper in open court, and theninquired of the jury in the usual form whether they found the de- fendant guilty or not guilty. The foreman re- plied as follows, to which aU the jury assented : " Guilty of an assault with a knife without the intent to kill and murder." The verdict in this form was affirmed, received, and recorded. Held, that it did not conclusively appear that the jury before separating found the defend- ant guilty of the same crime of which they de- clared him to be guilty by their oral verdict; and that the verdict must be set aside. Com- monwealth V. Walsh, 132 Mass. 8 (1882). 7. At the trial of an indictment for an as- sault upon an officer while in the lawful exe- cution of the duties of his office, there was evidence tending to show that the defendant, while in an intoxicated condition, entered a passenger car of a railroad corporation, stand- ing upon a track at a station ; that, while in the car, he engaged in a scuffle with another person in a similar condition ; that he was re- quested by the conductor in charge of the car to leave the car, and, upon his refusal to com- ply, was ejected by the conductor and a brake- man, but immediately entered the car again, and refused to leave at the request of the con- ductor; that thereupon an officer came into the car and found the defendant standing in the car, drunk and staggering about, and cursing and talking in a drunken manner; that the conductor requested the officer to eject him ; that the officer told him to go out, and he refused;, that the officer then told him that, if he did not go out, he would arrest him; that the defendant again refused, and the officer arrested him; and that the defendant resisted and struck the officer. Held, that, upon this evidence,, the jury might infer that the arrest was for being drunk, and that the defendant knew that it was for that cause. Common- wealth V. Kennedy, 136 Mass. 152 (1883). 8. A man, while under the influence of in- toxicating liquors, went into a room containing abed occupied by a woman, removed the bed- clothes from off her person, and got into the bed without otherwise touching her person than in removing %uch clothes. She awoke, and, while stepping over the man in order to get out of the bed, he raised his hand and tried to prevent her from leaving the bed, but did not touch her person because he could not reach her. Held, that he could be convicted of an assault. Held, also, that it was a question for the jury whether he was so far intoxi- cated as to be unable to form a guilty intent. Commonwealth v. Hagenlock, 140 Mass. 125 (1885). 9. If a police officer, arresting a person without a warrant, under the Pub. Sts. c, 207, § 25, for being intoxicated in a public sti-eet, is indicted for an assault, a judgment of con- viction of the arrested person of the crime of drunkenness, rendered by a police court on the day after the arrest, is not conclusive evi- dence in favor of the officer, at the trial of the indictment, that such person was intoxicated when arrested. Commonwealth v. Cheney, 141 Mass. 102 (1886). 10. A conviction for a simple assault may be had on an indictment which charges in one count a riot and an assault committed riot- ously. Commonwealth v. Hall, 142 Mass. 454 (1886). 11. At the trial of an indictment against three persons for assaulting A., a constable and police officer of a certain town, while in the execution of the duties of his office, A. testified that he was appointed a special po- lice officer of the town ; that he was patrolling 61 ASSAULT AND BATTERY, II. 62 the highway, at the time of the alleged as- sault, in company with B., a,nother special police officer; that when they arrived at a point opposite the hotel of C, A. was accosted by C, who, after asking the officers if they had any business at his house, struck B., and B. and C. then clinched and engaged in a struggle ; that thereupon A. advanced toward the combatants to assist B., -when one of the defendants, who had not been seen or heard before, exclaimed, "Hold on there. A., don't strike him;" that, immediately afterwards, another defendant seized A. and held him while the third defendant struck him, and one of the defendants seized A. 's billy, which he had drawn in assisting B. ; that each de- fendant appeared separately, and was recog- nized by A. as he appeared. A.'s testimony was corroborated by B. There was also evi- dence tending to show that, among the duties for which A. and B. were appointed was the surveillance of C.'s house, which was an un- licensed inn and a place of common resort; and that the defendants had lived in the town many years, knew A. and B. well, and were well known by them. The defendants ad- mitted being in the vicinity at the time, but denied assaulting A., or knowing that the per- son assaulted was an officer. The judge in- structed the jury that they might infer from the evidence that the defendants knew that A. was an officer, as alleged in the indictment, audthat he was in the lawful execution of his office. Held, that the defendants had no ground of exception. Commonwealth v. Saio- yer, 142 Mass. 530 (1886). 12. An indictment for an assault upon a female child under the age of ten years, with intent to unlawfully and carnally know and abuse her, may be maintained upon § 28 of the Pub. Sts. c. 202, which provides that 'whoever assaults a female with intent to commit a rape shall be punished," although the child makes no resistance. Common- wealth V. Roosnell, 143 Mass. 32 (1886). 13. At the trial of an indictment, under the Pub. Sts. c. 202, § 28, for an assault up- on a female child under the age of ten years, with intent to unlawfully and carnally know and abuse her, the defendant asked the judge to rule that the jury must be satisfied, not only that the defendant intended to gratify his passions on the person of the child, but that he intended to do so at all events, and notwithstanding any resistance on her part. The judge declined so to rule, and instructed the jury that they must be satisfied that the defendant made the assault with the intent charged in the indictment, and although the offence of carnally knowing and abusing may not have been committed, because of a change of intent after the assault was made, yet if the assault was made with the intent charged, they would be warranted in returning a ver- dict of guilty. Held, that the defendant had no ground of exception. Commonwealth v. Roosnell, 143 Mass. 32 (1886). 14. At the trial of an indictment, under the Pub. Sts. c. 202, § 28, for an assault upon a female child under the age of ten years, with intent to unlawfully and carnally know and abuse her, the defendant introduced evidence tending to show that, at the time relied on by the government, he was in another State than that in which the offence was alleged to have been committed. The defendant asked the judge to rule that the burden of proof was on the government to prove that the defendant was at the time and place necessary for the commission of the crime alleged, and that, if the jury had a reasonable doubt of the de- fendant's presence at such time and place, the defendant must be acquitted. The judge de- clined so to rule, and instructed the jury that the government must prove all the allegations of the indictment beyond a reasonable doubt; and that it must be proved that the defendant was at the time and place charged in the in- dictment, the offence charged being one which could not be committed unless the defendant and the girl were, in immediate proximity to each other. Helct, that the defendant had no ground of exception. Commomoealth v. Roosnell, 143 Mass. 32 (1886). 15. At the trial of an indictment for an as- sault and battery, if the defendant introduces evidence that he was not the aggressive party, but acted in self-defence, and was severely beaten by the other party, and was confined to his bed for weeks, he may also show that, during his confinement, he complained of pain and sufl:ering in limbs and body; and the fact that he made such complaints may be proved by the testimony of his wife. Commonwealth V. Jardine, 143 Mass. 567 (1887). II. Civil Action. 1. If a tenant at will surrenders the prem- ises by an express agi'eement with the owner, and vacates them with his family and goods, leaving behind a person who has occupied the premises with him by his permission, but without the owner's knowledge or consent, the owner is not liable to an action for assault, if he ejects such person, after request and re- fusal to leave the premises, using no unrea- sonable force. Stone v. Lahey, 133 Mass. 426 (1882). 2. In an action by A. against B. for an as- sault, there was evidence that it was commit- ted by B. on his own land, in self-defence, he being attacked by A. and C. Held, that B. was properly allowed to show that he had told C. that day not to come upon the land; and also to show that, shortly before the assault, C. (who was a witness at the trial in A.'s behalf) said to another person, "You wait a few minutes, and you will see some fun." White v. Swain, 138 Mass. 325 (1885). 3. In an action for an assault, committed upon premises into the posession of which the defendant, after a suit with the plaintiff, had been put under an execution, evidence is in- competent that the officer who served the exe- cution told the plaintiff, two days after such service, that he might have until the evening 63 ASSIGNMENT, I. 64 of the day of the assault to remove his prop- erty from the premises, the defendant having forbidden him to enter thereon. White v. Swain, 138 Mass. 325 (1885). 4. In an action for an assault and battery, committed in arresting the plaintiii illegally, he is entitled to recover compensation for the loss of his time, and for the indignity suiiered by him. Morqan v. Curley, 142 Mass. 107 (1886). 5. In an action for an assault, evidence that a complaint had been preferred to the grand jury for the same assault, and that no indict- ment had been returned against the defend- ant, is inadmissible. Bonino v. Caledonia, 144 Mass. 299 (1887). 6. In an action for an assault, in biting the plaintiff's nose, the physician who attended the plaintiff after the assault, and who had testified as to the cause of the injury, stated, in answer to an inquiry, that he made an ex- amination of the plaintiff about eight months after he first came to him. The witness was then asked to state the condition in ■which he found the plaintiff, so far as related to the effect of the injury to the nose; and, after de- scribing the plaintiff's general condition, he answered that "there was then a large ulcer on the nose, and the nose was a running sore." The defendant requested the judge to exclude that part of the- answer quoted; but the judge declined so to do. On the re- direct examination, the plaintiff asked the witness, " When the plaintifE was under your treatment, did you find him syphilitic?" The defendant objected to this question ; and it did not appear what the answer of the witness was. Held, that the defendant showed no ground of exception. Bonino v. Caledonio, 144 Mass. 299 (1887). 7. In an action for an assault, no justifica- tion was pleaded ; but the defendant, after evidence had been admitted, without objec- tion, tending to show that the plaintifE had repeatedly threatened to assault the defend- ant, and had without provocation first as- saulted him on the occasion in question, offered to show that, on two occasions, two and three days respectively before the assault sued for, the plaintiff made unprovoked as- saults upon him and injured him. Held, that the evidence offered was rightly excluded. Bonino v. Caledonio, 144 Mass. 299 (1887). ASSESSMENTS. On Shares in Corporations, see Corpora- tion. In Mutual Insurance Companies, see In- SURANCE, VI. For Park, Sewer, and Street Improvements, see Park; Sewer; Way. Under St. 1873, c. 340, for raising grade of land in Boston to abate nuisance, see Nuisance. See also Board of Health. ASSESSOR OF DAMAGES. See Auditor. ASSESSORS. See Tax. ASSIGNMENT. I. Generally. (a) What is or is not Assignable. (6) How an Assignment may be made, (c) Effect of Assignment ; Rights of Parties under it. II. For the Benefit op Creditors. III. In Bankruptcy and Insolvency. See those titles. See Bank; Conflict of Laws; Corpora- tion ; Devise ; Gift ; Trustee Process ; Trust. For Assignment of Insurance Policy, see Insurance. For Assignment of Lease, see Landlord AND Tenant. For Assignment of Mortgage, see Mort- gage. I. Generally. (a) What is or is not Assignable. 1. If A. puts property in trust, the income to be paid to him for life, and after his' death to his wife for life, and the principal after the death of both to his executor to be divided equally among his children, and A. retains no power of revocation or further disposition, it does not pass by his will, or by an assignment executed by one of his children by which he conveys, after his father's death, " all my in- terest of whatever name, nature, or descrip- tion in the estate real and personal of my father, and all my share thereof under the will of my father, together with all income, benefit, and advantage thereof accrued or to accrue." Belknap v. Belknap, 128 Mass. 14 (1879). 2. A will gave to the testator's widow the use and impr'ovement of the testator's real and personal estate during her life ; and di- rected that, at her decease, all his estate should be converted into money, the income to be paid to his daughter, and at her decease the principal to be divided equally among her heirs at law. Held, that the daughter's chil- dren took during her life an interest in the fund which they could assign and which would pass to an assignee in bankruptcy. Putnam v. Story, 132 Mass. 205 (1882). 3. An assignment, under seal, to a town, of a sum of money held in trust for the assignor, purporting to be " in consideration of one dol- 65 ASSIGNMENT, I. 66 lar and other valuable consideration,'' and the object of which is expressed to be to repay ex- penses incurred by the town for the support of the assignor as a pauper, and, if anytliing is left after paying for past charges, to pay for his support in the future, is valid. O'Donnell V. Smith, 142 Mass. 505 (1886). 4, An assignment of a sum of money will not, after the death of the assignor, be held to be invalid, because, nine years before the execution of the assignment, the assignor was placed under guardianship as a spendthrift, if the person appointed guardian did not accept the oflBce, although the decree of the probate court appointing him has not been revoked. O'Donnell v. Smith, 142 Mass. 505 (1886). (b) How an Assignment may be marde. Although a conveyance is in form a deed of an interest in land, yet, it clearly being intended as an assignment of the grantor's interest in the land under a will, it may be construed in equity as an assignment of his interest in the proceeds of the land after its conversion by the executor. Putnam v. Story, 132 Mass. 205 (1882). (c) Effect of Assignment; Rights of Par- ties under it. 1. After a railroad corporation had filed a location of its railroad over A.'s land, A. conveyed a portion of the land to B. by a warranty deed containing a covenant against incumbrances. Both A. and B. filed petitions against the corporation for the assessment of damages for the land taken; and, B. having become insolvent, his assignee assigned to the corporation the claim of B. under his petition for the land taken and damages caused by the laying out of the railroad, with full power to prosecute the petition to final judgment, and to avail itself of all remedies both in law and in equity in relation to said claim. A. subse- quently recovered judgment against the cor- poration for damages for all the land taken. Held, on a bill in equity by the corporation against A., to restrain him from enforcing his judgment so far as the damages sustained by B.'s land were concerned, that the claim of B. against A. for breach of the covenant of warranty did not pass by the assignment to the corporation; and that the bill could not be maintained. New York §• New England Railroad Y. Drury, 133 Mass. 167 (1882). 2. A. had possession of goods under a con- tract of sale by which the goods were to be- come his when fully paid for. After making some payments, he borrowed money of B., giving a written assignment of his interest in the goods hj way of security. He still retained possession of the goods, and after- wards repaid B. Held, that A. could main- tain an action of replevin for the goods against one taking them from him, notwithstanding that the written assignment had never been formally delivered up or cancelled. Sviett v. Boyce, 134 Mass. 381 (1883). | SUPPI.EMKXT. — 3 3. If, after a loss by fire has happened through fraud of the assured, and been ad- justed by the insurers, the assured assigns his claim under the policy to a creditor of his to secure a debt, and the insurers, at the request of the assured, pay to the creditor the amount so adjusted, both the insurers and the creditor being ignorant of the fraud, the insurers may recover from the assured the sum so paid, notwithstanding his subsequent discharge in bankruptcy. But they cannot recover it back from the creditor, if it does not exceed the amount of the debt so secured, whether con- tracted before or at the time of the assign- ment. Merchants' Ins. Co. v. Abbott, 131 Mass. 397 (1881.) 4. An order, addressed by A. to his attor- ney, requesting the payment to B. of " all moneys which may become due me" from an action tlien pending, in whicli A. is plaintiff, but in wiiich no judgment has been entered, " and this shall be your receipt for the same," is a mere authority to the attorney, if funds should come to his hands from tliat source, to pay them to B., and not an assignment of such funds to B., valid against the trustee process; and an oral acceptance of the order by the attorney does not change the character of the order, so far as relates to its operation on the fund. White v. Coleman, 130 Mass. 316 (1881). See also S. C. 127 Mass. 34 (1879). 5. A. made an oral contract with B. for the erection of a house for him by B. B. par- tially performed this contract ; and, after sun- dry modifications of the contract had been made, B., with the assent of A., made a written assignment to C. of " all my right, title, and interest in and to a certain contract with A., which contract was to build for A. a certain house. C. to complete said house in a good and workmanlike manner, and in all respects according to the contract made by me with A." Held, in an action by C. against A., that the assignment was of the contract as it subsisted after the modifications thereof, and not .of the contract as originally made. Wood V. Donovan, 132 Mass. 84 (1882). 6. The delivery of n savings-bank book, although unaccompanied by a written assign- ment, transfers an equitable title to the de- posit represented . by the book, where such is the intention. Such a delivery may consti- tute a valid gift, causa mortis, of the deposit. Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425 (18S0). Such a delivery will enable the assignee to claim the deposit as collateral security for a debt as against one attaching it subsequently by the trustee process in a suit against the assignor. Tajl v. Bowker, 132 Mass. 277 (1882). 7. An assignee of a deposit in a savings bank can set off the same under St. 1878, c. 261, against a claim of the bank, without a previous notice to the bank of the assignment. North Bridgewaler Savings Bank v. Soule, 129 Mass. 528. 8. If A. holds a certificate of stock in a na- tional bank in trust for B., to whom he as- signs the certificate, B. may maintain a bill 67 ASSIGNMENT, II, 68 in equity to compel the bank to transfer the shares to him, although there has been no record of the transaction on the books of the bank, as required by its by-law. Sibley v. Quinsigamond Bank, 133 Mass. 515 (1882). 9. If a person, having made a settlement in trust of his own property by which he is entitled to the income, assigns his interest un- der the settlement as security for a debt, he cannot, as against the creditor, subsequently modify the terms of the trust, so as to make the payment of the income discretionary with the trustee. Pacific Bank v. Windram, 133 Mass. 175 (1882). 10. In the absence of fraud, an assign- ment of a chose in action is good against a subsequent purchaser, though not recorded, and though no notice is given to the debtor. Putnam v. Story, 132 Mass. 205 (1882). 11. A voluntary assignment of a chose in action not affecting creditors, made in good faith, is good as against a subsequent assignee for value. Putnam v. Story, 132 Mass. 205 (1882). 12. An assignment of a chose in action, made in fraud of creditors, is void as against them, both under the law of New York and of Massachusetts. Drake v. Rice, 130 Mass. 410 (1881). 13. A laborer assigned his wages. Upon a suit against his employers brought for the benefit of the assignee, the employer proposed to set off claims for rent and goods, accruing after notice of the assignment. The right to make such set-off was claimed, not under a contract, but under a usage. Held, that such set-off was not permissible as against the as- signee. St. Andrew v. Manchaug Manaf. Co., 184 Mass. 42 (1883). 14. If the purchaser at a sale on execution, under St. 1874, c. 188, § 5, of land, the legal title to which is fraudulently in a person other than the judgment debtor, conveys the land without taking possession, his grantee cannot maintain a writ of entiy in his own name to recover possession. It is the simple case of the assignment of a right of action, under which the assignee cannot sue in his own name. Hunt v. Mann, 132 Mass. 53 (1882). 15. The purchaser of a chose in action from an assignee in bankruptcy cannot bring suit in his own name, but may in the name of the assignee. Rogers v. Union Stone Co., 134 Mass. 31 (1883). 16. An action upon a debt due to a bank- rupt before his bankruptcy may be brought in the name of the bankrupt, with the consent and for the benefit of the assignee in bank- ruptcy, who is also the assignee in fact. May- hew V. Pentecost, 129 Mass. 332 (1880). 17. So, where the assignee in fact has brought a suit in the name and by authoi-ity of the assignor, who afterwards becomes a bankrupt, the suit, with the consent of the assignee in bankruptcy, may be prosecuted to final judgment in the name of the assignor. Reed v. Paul, 131 Mass. 129 (1881). 18. An assignment of "all my right, title, and interest in and to the real and personal estate of C, intending hereby to convey all right and title of or to property personal, real, or mixed, which I have or may have, as' heir of said C, including also any right, title, or interest I may have or have now to any sum of money in the hands of B. , derived from the sale by myself and mother of the farm oc- cupied by father in his lifetime," includes a sum of money derived from such sale, and de- posited in a savings bank by B., who holds the book issued for such deposit in the name of the assignor, although B., as administrator of C.'s estate, also holds a promissory note as part payment for the farm, and the proceeds of a sale of personal property of the estate. Swan V. Warren, 138 Mass. 11 (1884). 19. In February, 1884, A. and B. executed a contract, by which A. was to build a road in the town of W., and to have it completed on or before April 1, 1884, and for building and completing the road B. was to pay a certain sum, but the time of payment was not stated. The contract provided that, if A. failed to comply with the agreement, B. might complete the road and deduct the ex- penses thereof from the sum named in the contract. In March, 1884, A. executed to C. an assignment of " all claims and demands which I now have, and all which, at any time between the date hereof and May 1, 1884, 1 may and shall have against B., for all sums of money due, and for all sums of money and demand which, at any time between the date hereof and said May 1, 1884, may and shall become due to me, for services as sub-con- tractor, meaning especially to transfer all sums of money falling due to me by B. for work done by me for him in the town of W." A. continued to work on the road until June 1, 1884, when he abandoned the work, and B. proceeded and finished it at a cost of a certain sum, which, deducted from the bal- ance of the sum named in the contract, left a certain sum in the hands of B. as the final balance due to A. under the contract. Held, that the assignment to C. did not transfer this balance in B.'s hands. Segee v. Downes, 143 Mass. 240 (1887). 20. If the assignor of a chose in action brings an action thereon while the assign- ment is in force, and without the authority of the assignee, a reassignment by the as- signee to the assignor, dui-ing the pendency of the action, will authorize the latter to prose- cute the action for his own benefit. Moore V. Spiegel, 143 Mass. 413 (1887). n. For the Benefit op Creditors. 1. At common law an assignee under an assignment for the benefit of creditors takes no better title and no higher rights than the assignor himself had, and is not to be re- garded as a purchaser for a valuable consid- eration without notice. Chace v. Chapin, 130 Mass. 128 (1881). 2. A voluntary assignment by a debtor in another State of all his property situated in this Commonwealth, in trust for his creditors, the only consideration for which is the accept- 69 ASSIGNMENT, II. 70 ance of the trust by the assignee, although valid in the State where made, is invalid as against a subsequent attachment of his pei-- sonal property by a creditor in this Common- wealth not assenting to the assignment ; and a subsequent assent to the assignment by creditors in the other State, by proving their claims under it, cannot defeat the title ac- quired by the attachment here. Pierce v. O'Brien, 129 Mass. 314 (1880). 3. Two debtors made an assignment of all their property in trust, for the security of new notes to be given by them to such of their creditors as should become parties to the as- signment within two months from the date thereof. By the terms of the assignment each creditor was to receive four new notes, pay- able at different times, the last being payable in thirty months, and covenanted not to sue his original demand except on default in the payment of the new notes. The trustees paid only a dividend on the new notes. After the last of the new notes matured and one debtor had received a discharge in bankruptcy and the other had ceased to be a resident of this Commonwealth, a creditor brought a bill in equity seeking to become a party to the as- signment. Held, that, although the trustees had funds sufficient to pay him the same dividend which the creditors who signed had received, and although he had accidentally failed to be a party to the assignment, and would have been one had he known of it in time, the bill could not be maintained. Easton Bank V. Smith, 133 Mass. 26 (1882). 4. An assignment to trustees for the benefit of creditors, and accepted by them, contained a clause stating that " we do hereby accept " in satisfaction payments which were to be made in the future, and that " we do hereby absolutely release " the debtor from all debts, except as otherwise provided, &c. Held, that, in view of other provisions of the instrument, it was appai-ent that the present tense in the clause above quoted was inaccurately used, and that the assignment did not operate as a present payment and extinguishment of the debts, but was an executory agi'eement, sub- stantially a covenant not to sue by the cred- itors. Dickinson v. Melacomet Bank, 130 Mass. 132 (1881). 5. A corporation made an assignment to trustees of all its property for the benefit of its creditors, which was executed by each of the creditors. The instrument provided that it should become inoperative in case insolvency proceedings should be instituted. Afterwards, in insolvency proceedings, the creditors attempted to prove their claims, no dividends or payments having been received by them under the assignment. Held, that they did not hold any property of the insol- vent corporation in mortgage, pledge, or other- wise, as collateral security for their debts, within the meaning of Gen. Sts. c. 118, § 27, and that therefore their claims were prov- able. Dickinson v. Melacomet Bank, 130 Mass. 132 (1881). 6. A promissory note, delivered to a bank, concluded with the statement that the maker had pledged, as collateral security, certain shares of stock, with authority to the holder to sell the same ' ' on the non-performance of this promise, he giving me credit for any bal- ance of the net proceeds of such sale, and pay- ing all sums then due from me to said holder." Subsequently the maker assigned all his prop- erty to a trustee for the benefit of his cred- itors. Held, in a suit in equity to compel the redelivery of the shares upon payment of the note, that, even if the trustee had no greater rights than an assignee in insolvency, the de- fendant could not, under Gen. Sts. c. 118, § 26, set off other debts due him from the pledgor, at the time the note matured, nor could it, by way of defence, avail itself of the fact that it had applied the shares in payment of such debts. Hathaway v. Fall River Bank, 131 Mass. 14 (1881). 7. An assignment was made for the benefit of creditors under New Hampshire Gen. Sts. 1867, c. 126, while the U. S. Bankrupt Act of 1867 was in force, and a creditor proved his claim and received a dividend thereon. Held, that, if the efiect of the statute of New Hampshire was to bar an action upon the claim, it was an insolvent law, the operation of which was suspended by the Bankrupt Act. Lyman v. Bond, 130 Mass. 291 (1881). 8. A. made an assignment of his property to a trustee for the benefit of his creditors, by which the creditors released their claims ex- cept as therein provided ; and which provided that no creditor holding security should, by signing, release, impair, or in any manner af- fect his right to such security, but that, if the security would be applicable to A.'s liability under the insolvent laws of the Common- wealth in insolvency, the dividends should be paid only on so much of the debt as should remain after deducting from it the amount realized from the sale of the security ; and that the trustee might pay off liens on the prop- erty. A. had previously given to a bank a promissory note, payable on demand, and secured by a transfer of shares of stock ; and the bank made other advances to A. before and after this transaction, receiving other notes, which it still holds. Demand was made on the note secured three days before the date of the assignment, but no notice of intention to sell the security was given ; and the bank afterwards became a party to the assignment. Subsequently the bank sold the stock held as security, the trustee and A. waiving the sixty days' notice mentioned in the Gen. Sts. c. 1.51, § 9, and consenting to the sale; and the proceeds of the sale were more than sufficient to pay the note. Held, that the trustee could recover such surplus in an action against the bank. Brown v. New Bedford Institution for Savings, 137 Mass. 262 (1884). 9. An assignment of property to trustees, to be managed and disposed of for the benefit of the creditors of the assignors, was made in consideration of the covenants and agreements therein expressed to be performed by "their creditors " and the trustees, and of one dollar and other good and valuable considerations 71 ASSUMPSIT. 72 paid to the assignors by " said creditors " and the trustees. The assignment recited that it ■was the purpose of the assignors to have the instrument executed by all their creditors whose claims should equal or exceed a certain sum, and to secure their own release from all personal responsibility for their debts, except those which were trifling in amount ; provided that, when they should express their satisfac- tion with the due execution of the instrument in writing and upon the instrument, it should be a perfected conveyance and agreement, and not before ; and the assignors covenanted with the trustees and their creditors to execute further conveyances if required. The instru- ment also recited that the creditors had ap- pointed an advisoi-y committee, who were to advise the trustees; and provided for filling vacancies by a vote of the creditors. The trustees were constituted the attorneys of the assignors and of the creditors; and covenant- ed with them, "parties hereto," to execute the ti-ust faithfully; and the respective cred- itors of the assignors, each for himself, ratified the conveyance, and agreed to accept from the trustees their dividend or proportionate part of the estate in full payment, satisfaction, and discharge of their respective debts, " and an acceptance of this conveyance for our benefit, evidenced by our signature hereto, shall con- stitute such discharge." The instrument fur- ther provided that " the trustees shall pay pro rata dividends to all the unsecured creditors of said grantors; " and that, " in malting such payments to creditors, there shall be no pref- erence or priority, except to holders of valid liens and other creditors whose claims would be preferred under the laws of said Common- wealth relating to insolvency." Held, that only such creditors as became parties to the assignment were entitled to share in the divi- dends. Hewlett V. Cutler, 137 Mass. 285 (1884). 10. An assignment of property, executed in another State, by a debtor domiciled there, for the benefit of his creditors, which provides that certain creditors shall be paid in full be- fore the others are paid anything, and which is assented to by creditors holding claims ex- ceeding in amount the value of the property assigned, if valid by the law of that State, will be upheld in this Commonwealth, as against an attaching creditor of the assignor domiciled here. Train v. Kendall, 137 Mass. 366 (1884). 11. A. made an assignment of his property, in trust for the benefit of his creditors, to B., which did not require the written assent of the creditors, and which provided that, if A. should be adjudged insolvent, B. should con- vey the property to the assignee in insolvency. C, a creditor of A., brought an action against him, in which B. was summoned as- trustee; and afterwards C. assented verbally to the assignment, and presented his claim, which was allowed by B. at a sum agreed upon be- tween them. Subsequently, A. filed a petition in insolvency, and was adjudged an insolvent. Held, that, the assignment being valid, and - assented to by C, B. was entitled to be dis- charged as trustee. Jones v. Tillon, 139 Mass. 418 (1885). 12. A debtor made an assignment in writ- ing to trustees for the benefit of such creditors as should execute the instrument of assign- ment within sixty days from the date thereof, or within such further time as the trustees should allow " in and by a writing " indorsed on the instrument of assignment. By the terms of the assignment, the trustees were to convert the property of the debtor into money, and to distribute the net proceeds pro rata among said creditors. They also were per- mitted to carry on the debtor's business of manufacturing so long as they should deem expedient, and to compromise, without any limitMion of time, any claims against the debtor. Held, that the term "a writing" did not limit the trustees to the allowance of only one extension of the time in which creditors could become parties to the exten- sion. Held, al.10, that if the trustees, through inadvertence, did not indorse a renewal of time before one extension had expired, this did not render the granting of a subsequent extension illegal, if it were reasonable, under all the circumstances of the case, that such ex- tension should be made. National Union Bank v. Copeland, 141 Mass. 257 (1886). 13. Where an assignment is made in trust by a debtor for the benefit of his creditors, one creditor cannot maintain an action at law against the trustee to recover his whole debt, or a larger part than the trustee admits to be due, although there has been wilful neglect on the part of the trustee in collecting the assets of the debtor. Bouve v. Cottle, 143 Mass. 310 (1887). ASSUMPSIT AND ACTION OF CON- TRACT IN THE NATUllE OF ASSUMPSIT. I. When Assumpsit will or will not LIE. II. When Indebitatus Assumpsit will he; when the Count must be Special. III. For Labor, Services, &c. ; Express AND I.mplied. IV. For Goods Sold and Delivered; Waiving Torts. V. For Use and Occupation. See Landlord and Tenant. VI. For Mosey Lent; and on an Ac- count Stated. VII. For Money Paid, Laid out, and Expended; Contribution. VIII. For Money Had and Received; Generally. IX. To recover back Money paid by Mistake. X. For Money paid illegally; or on Compulsion, or Duress. XL Account Annexed. XII. Pleadings; Evidence; Judgment. T3 ASSUMPSIT, I., II., III. 74 I. When Assumpsit will or will not LIE. 1. A. entered into a written contract to erect a building for B., the contract including the roofing, and employed G. to do the roofing. After the building was completed, B. took possession of it, and A. gave C. an order on B. for the amount of his bill for the roofing, which B. refused to accept, saying that he Erefen-ed to wait and see how the roof proved efore paying. A. and B. afterwards met for a settlement, and B. complained that the roof leaked; and it was thereupon agreed between them that B. should pay A. all that was due him under the contract except the amount due for roofing, and should give a due-bill for the latter amount; which he did, payable to C, when the roof was made satisfactory. A. gave this due-bill to C, who afterwards did some work for the purpose of making the roof satisfactory, and then sent a bill to B. for the whole work, which he refused to pay, on the ground that the work was not done according to the contract. C. then brought an action against B. upon an account annexed for work and materials. Held, that, if there was any privity of contract between B. and C, it arose from the giving of the due-bill, and that the action could not be maintained. Farqukar v. Brown, 132 Mass. 340 (1882). 2. If a factor, under an entire contract for a gross sum, sells goods, some of which be- long to himself and some to his principal, the principal cannot sever the contract and main- tain an action against the purchaser to recover the value of his goods. Roosevelt v. Doherty, 129 Mass. 301 (1880). 8. The unauthorized addition of a seal to a contract will not defeat the plaintiff's right to recover on a quantum meruit, where he has done work under the contract, which he has abandoned justifiably. Cook v. Gray, 133 Mass. 106 (1882). II. When Indebitatus Assumpsit will LIE ; WHEN the CoUNT MUST BE Special. 1. A commissioner, appointed by the Pro- bate Court to make partition of land between two tenants in common, who has not been paid for his services, is not entitled under Gen. Sts. c. 136, § .59, to recover, as money received to his use, one half of the amount of the charges for his services, from the tenant collecting of the other tenant, upon an execu- tion issued therefor, one half of the expenses and charges allowed by the court, although the amount sued for is included in the sum collected. Langdon v. Palmer, 133 Mass. 413 (1882). 2. A count ia indebitatus asaumpsit for goods sold upon a credit will not lie until the credit has expired. Such a count imports an allega- tion either that there was no credit, or that it has expired. Wilder v. Colby, 134 Mass. 877 (1883). III. For Labor, Services, &c.; Express AND Implied. 1. If a written contract for work to be done is fully performed, the stipulated price may be recovered in an action upon a common count or an account annexed. Simmons v. Lawrence Duck Co., 133 Mass. 298 (1882). 2. If a plaintiff, after doine work under a written contract, has the rignt to avoid or rescind the contract, he may recover what his labor is reasonably worth, under a common count or an account annexed. Simmons v. Lawrence Duck Co , 133 Ma^s. 298 (1882). 3. If a person who performs work for an- other under a special contract, and is paid in part only for such work, is justified in aban- doning the contract, he may recover the value of his work on a quantum meruit. Cook v. Gray, 133 Mass. 106 (1882). 4. One who performs work for another un- der a special contract, which reserves to the latter the right to cancel the contract, is en- titled, after such cancellation, to recover, upon a quantum meruit, the full value of his work up to that time, although the contract provides that the amount of the first month's work is to be retained as security for the faithful per- formance of the work. Fitzgerald v. Allen, 128Mass. 232 (1880). 5. If A. performs work and furnishes ma- terials for B. under a special contract, which is afterwards broken by B. under such circum- stances that A. is justified in abandoning it before completion, he may maintain an action for the value of the work done and materials furnished; and may set off such a claim, under Gen. Sts. c. 130, §§ 1-3, in an action of contract against him by B. Ford v. Bw- chard, 130 Mass. 424 (1881). 6. In an action on an account annexed for work done and materials furnished, it ap- peared that the plaintiff had performed work and furnished materials, during the times stated in the account, under two proposals and a subsequent contract. Neither of the proposals was identical in terms with the other, or with the contract, though they had many things in common. They all referred to plans and specifications, which did not appear in the defendant's exceptions on which the case came before this court. There was oral evidence that the plans and specifications referred to in the proposals and the contract were the same, and that the parties intended to reduce their contract to writing, but delayed it until the conti-act in question was made. There was evidence that the plaintiff had been prevented from performing the final contract by the act of the defendant. The jury were instructed, at the request of the defendant, that the plaintiff could not recover for work done and materials furnished, not done and furnished under the final contract ; and were further instructed, against the defendant's objection, that whether the work done and materials furnished prior to the date of that contract were done and furnished under that contract, was for the jury to determine on all the evidence in the case. Held, that the de- 75 ASSUMPSIT, IV., Y., VI., VII. 76 fendant had no ground of exception to the admission of the evidence, or to the instruc- tions given, he neither having asked for more specific instructions, nor excepted to the ad- mission of the afore-mentioned evidence. Simmons v. Lawrence Duck Co., 133 Mass. 298 (1882). 7. In an action by an aunt against her nephew, for board and lodging furnished to him after he became of age, while in her family, the judge declined to rule, as request- ed by her, that there was no presumption that she should furnish board and lodging to the defendant gratuitously, and that the burden ■was on him to show, either that she had made a gift to him of, or that he had paid her for them; and instructed the jui-y, "that if noth- ing more was shown in any case, except the naked fact of the rendering and acceptance of valuable services, like those claimed in this case, there would arise a presumption of an implied contract to pay for them; that when all the circumstances were disclosed under ■which such services were rendered and ac- cepted, such presumption might be either strengthened or repelled; that in the case of persons living together in the same family, as these persons were, there were a variety of cii'oumstauces to be considered and weighed in determiniug the implication that should arise as to whether the services were gratui- tous or otherwise ; and that the general bur- den was on the party setting up a contract, express or implied, to satisfy the jury of it, taking the whole evidence and presumption together." Held, that the instructions re- quested, so far as the plaintiff was entitled to them, were covered by the instructions given, which afforded her no ground of exception. Thurston v. Perry, 130 Mass. 240 (1881). 8. The plaintiff agreed, in writing, to man- ufacture for the defendant certain machines, and to deliver them to his order ; and the de- fendant agreed to pay the plaintiff for all labor and materials used or furnished for the machines at a specified rate, and, in addition thereto, ten per cent of the cost. The defend- ant further agreed to remit to the plaintiff for each machine the amount due for the manu- facture and delivery of the same, and, in ad- dition thereto, all surplus of profits which should result to the defendant, after deduct- ing expenses of sale and subsistence, until the defendant's existing indebtedness to the plaintiff should be liquidated, " all and each of said remittances to be made immediately on receipt of sale of each machine." Held, that, on delivei-y of the machines, the plaintiff ■was entitled to maintain an action for the labor and materials furnished. Boston Sf Fair- haven Iron Works v. Montague, 135 Mass. 319 (1883). 9. A. was employed as superintendent of a railroad corporation, at a fixed salary, the em- ployment to be terminated by three months' notice in writing. The corporation leased its railroad for a long term of years to another corporation, of which lease A. had notice; and, upon liis representation that he had ac- cepted his position supposing it to be perma- nent, and that the lease would be a damage to him, for which he ought to be compensated, the corporation which employed him voted to pay him a certain sum as extra compensation whenever the lessee should take possession of the road. The lessee took possession on a certain day, and the corporation paid to A. the sum so voted, and also his regular salai-y up to that day. Held, in an action by A. against the corporation for three months' salary from the date when the lessee took possession, that it was error in the presiding judge, who tried the case without a jury, to rule that, as matter of law, A. was entitled to recover, without passing upon the question of fact whether A. , by accepting the extra compensation voted, had not waived his right to the three months' notice provided for in the contract of employment. Nashua 4" Lowell Railroad v. Paige, 135 Mass. 145 (1883). IV. Fob Goods Sold and Delivered; Waiving Torts. See Sale. A declaration for the price of milk de- livered to the defendant, at his request, is supported by proof of a delivery to the de- fendant's wife, while living apart from him, without means of support, by reason of his cruelty. Benjamin v. Dockham, 134 Mass. 418 (1883). V. For Use and Occupation. See Landlord and Tenant, V. VI. For Monet Lent; and on an Ac- count Stated. 1 . When the payee of a promissory note, upon which several payments have been made, pre- sents it to the maker, and at his request agrees to remit a part of the interest, and the parties compute the amount due upon that basis, and fix upon the sum so found as the amount to be taken as due upon the note, this is such an accounting together as will sustain an action upon an account stated. Buxton v. Edwards, 134 Mass. 567 (1883). 2. In an action for money lent, the payment of which is secured by a transfer of stock by the defendant to the plaintiff, the question whether the plaintiff, by an unauthorized sale of the stock, has incurred the liability imposed by the Pub. Sts. c. 203, § 72, is not involved. Reeve v. Dennett, 137 Mass. 315 (1884). VII. For Money Paid, Laid out, and Expended ; Contribution. 1. A grantee of land, who fails to pay a mortgage, his deed containing a stipulation that the land is subject thereto, and that he assumes and agrees to pay it, is liable in an action of contract in the nature of assumpsit 77 ASSUMPSIT, VIII. 78 to the grantor, who pays it; and it is imma^ terial that the grantor, upon paying the mort- gage, takes an assignment of it. Lappen v. GUI, 129 Mass. 349 (1880). 2. A count for money paid should contain an averment that the money was paid at the defendant's request. Mansfield v. Edwards, 136 Mass. 15 (1888). 3. A surety may recover contribution from his co-surety in an action for money paid. Mamfietd v. Edwards, 136 Mass. 15 (1883). 4. A count for money paid can be sustained only by proof that the money was paid at the defendant's express or implied request. Brown V. Fales, 139 Mass. 21 (1885). VIII. For Money Had and Received ; Generally. 1. Money held under an invalid attachment may be recovered of the attaching officer in an action for money had and received. Allen V. Butman, 134 Mass. 347 (1883). 2. A. owed a debt to B., which B. had as- signed to C. D., who had attached the debt, agreed that the amount thereof might be paid by A. to C. C, by mistake, demanded and received of A. part only of the debt, and A. thereupon paid the balance to D. Held, that C. could not maintain an action against D.for this balance as for money had and received. Butler V. Frank, 128 Mass. 29 (1879). 3. If a merchant, who is under no obliga- tion to procure insurance against fire upon goods which he has sold, and which have not been removed from his shop, but who is obliged to procure insurance upon goods con- signed to him for sale, procures a general policy of insurance upon his own goods, those consigned to him for sale, and those sold but not removed, and, upon a loss taking place, includes these three classes in his statement of loss, he is not responsible to the purchaser of goods sold but not removed for a propor- tionate part of the money received upon his policy of insurance, if such amount is not greater than he would have received if he had included in his statement of loss mere- ly his own goods and those consigned to him. Reitenbach v. Johnson, 129 Mass. 316 (1880). 4. A. procured buildings, on which he had effected insurance, to be burned. The insur- ers adjusted the loss, and, at A.'s request, paid the amount to B., A.'s creditor, who received it in good faith, and without knowl- edge of A.'s fraud. After the payment, the insurers learned of the fraud, and brought suit against A. and B. Held, that a recovery could be had against A., notwithstanding his discharge in bankruptcy, but not against B., the amount received by him not exceeding A.'s indebtedness to him; and that, in any event, A. and B. were improperly joined; and that it was immaterial that the form of the assignment was of A.'s interest in the policy, that A. as well as B. gave the insurers a re- ceipt for the money, and that it was paid to B. by check payable to A. and B. Merchants' Ins. Co. V. Abbott, 131 Mass. 397 (1881). 5. An administrater de bonis non, with the will annexed, of the estate of a person who, by his will, of which his wife was executrix, devised to her the income of his estate during widowhood, and the principal on her maniage or death, in equal shares, to his and her heirs, may maintain an action against her executor for the proceeds of certain shares of bank stock, purchased by her with money which was a part of her husband's estate, and which, standing in her name at the time of her de- cease, are sold and transferred by her execu- tor, the money so used by her being all the trust estate which she held, and there being no unsettled accounts between her as trustee and the trust estate. Sewall v. Patch, 132 Mass. 326 (1882). 6. In an action for money had and received, it appeared that the defendant received money, by virtue of a power of attorney executed by a person other than the plaintiff, from the trustee under a will, in pursuance of a decree of a court in another State. Held, that the action could not be maintained by evidence that the plaintiff was entitled to the money under a proper construction of the will, that the plaintiff was not a party to the action in which the decree was i-endered, and that the court which made the decree had no juris- diction of that action. Band v. Smallidge, 130 Mass. 337 (1881). 7. An insurance company issued a paid-up policy on F.'s life, payable to him on a cer- tain day, or to his wife if he should then have died. Before the day of payment, F. became bankrupt, and the company, wishing to have the policy surrendered, authorized its agent, B., to purchase it for $3,000. F.'s assignees in bankruptcy assigned their interest to A., who assigned to B., who gave A. a receipt for the policy signed by B, as " manager," stating that it was surrendered for cash value. F. and his wife each executed a simUar assign- ment to the company, and F.'s wife, at B.'s request, executed an assignment of the policy to B., who stated that these papers were neces- sary to perfect the title. The company sent B. $3,000, and B. paid A. |2,000. In an action for money had and received, brought by A. against the company for $1,000, the jury found that B. acted as the agent of the company, not as agent of A. or of F.'s wife. Held, that the action could be maintained for the benefit of F.'s wife, as well as for the plaintiff's own benefit. Atkins v. Equitable Assurance Society, 132 Mass. 395 (1882). 8. The owners of letters patent of the United States for a certain invention formed an asso- ciation for the purpose of introducing the in- vention in Europe, and obtaining patents therefor; and executed a declaration of trust, which declared that they held the property for the use of the association ; and provided that no member of the association should receive any money on behalf of the association, except as authorized by the declaration of trust ; that an executive committee should have the gen- eral management and control of the business; 79 ASSUMPSIT, IX., X, 80 and that all votes of the association, not in- consistent with the declaration of trust, should be binding upon the trustees, the association, and the execntive committee. On the day this was executed, an indenture (referred to in the declaration of trust) was made between the trustees and A., a member of the associa- tion, by which A. was to sell the invention in Europe and pay over the proceeds to the trus- tees. No sale having been made under this indenture, the executive committee authorized one of the trustees to go to Europe and sell the letters patent for not less than a certain sum. After he had left this country in pursuance of this authority, the association, at a meeting at which the other trustee was present and act- ing, passed a vote anthorizing the absent trus- tee to sell the letters patent for such sum as he should deem best, and directing the pro- ceeds to be deposited in a bank in England to the credit of A. for the use of the sharehold- ers. The executive committee passed a simi- lar vote. The absent trustee, acting under these votes, made a sale in England of the let- ters patent, and the money therefor was paid to A. in this country by the agent of the pur- chaser. On the return of the trustee to this country, he demanded the money of A., who refused to pay it. This trustee subsequently made a contract with A., by the terms of which certain sums were to be paid by A. out of this money, and the balance distributed among the shareholders. Held, in an action for money had and received, by the trustees against A., to recover the proceeds of the sale, that, even if the votes of the association were inconsist- ent with the declaration of trust, the trustees had waived their right to take this objection, and that the action could not be maintained ; that the plaintiff's remedy was by a bill in equity, in which the rights of all the members of the association could be finally adjusted. Smith V. Moore, 129 Mass. 222 (1880). 9. The plaintiff agreed, in writing, to man- ufacture machines for the defendant, and to deliver them to his order; and the defendant agreed to pay for them at a specified rate, and in addition thereto all surplus profits until the defendant's existing indebtedness to the plain- tiff should be liquidated, on receipt of sale of each machine. This agreement was subse- quently modified by an agreement that the plaintiff should be exclusively entitled to re- ceive payment for machines sold, and should pay over to the defendant one fourth of the surplus of receipts above the cost of machines. Held, in an action for the price of manufac- turing the machines, that the defendant was not entitled to a ruling, that, under the con- tract as modified, the defendant was liable, if at all, only for money had and received. Bos- ton §■ Fairhaven Iron Works v. Montague, 135 Mass. 319 (1883). 10. If a person is induced by the fraudulent representations of the promoter of a corpora- tion to subscribe for shares of stock in the corporation, and pays his subscription to the person holding the office of treasurer, he can- not, by rescinding the contract, maintain an action for money had and received against the other shareholders, even if the incorpora- tion is invalid, and the shareholders are part- ners. Perry v. Hale, 143 Mass. 540 (1887). 11. A relief association issued a certificate to a member, in which it agreed to pay, on the death of the member, a certain sum to a third person, "in trust" for a daughter of the member. The third person collected the sum of the association. Held, that the guar- dian of the daughter could maintain an action, in the name of his ward, against such thii-d person, for money had and received. Derome V. Vose, 140 Mass. 575 (1886). 12. In an action for money had and re- ceived, for fifteen tons of hay at $15 per ton, the evidence tended to show that the de- fendant received a little over fifteen tons of hay to sell for the plaintiff on a commission of one dollar per ton ; that the hay was worth about $17 per ton; that the defendant sold one small lot of it at the rate of f 17 per ton, and another small lot at the rate of $18 per ton; that he said he was getting pretty good prices by selling it in small lots; that at another time he said that it was all sold, but that there were a few small accounts which he had not then collected ; and that the plain- tiff could never get an account from the de- fendant of the hay. The defendant was present at the trial, but did not testify, and offered no evidence. Held, that the evidence was sufficient to support a finding for the full amount claimed. Patton v. BeU, 141 Mass. 197 (1886.) ix. to recover back money paid by Mistake. 1. If an indorser of a promissory note, rely- ing upon a notice received from a notary pub- lic that the note has been dishonored, and, being called upon to pay the note by a sub- sequent indorsee, pays it to him, when in fact a proper demand has not been made upon the maker, such payment is made under a mis- take of fact, and an action for money had and received will lie for the amount so paid. Talbot v. Commonwealth Bank, 129 Mass. 67 (1880). 2. No demand is necessary as a prerequisite to the bringing of an action for the recovery of money paid under a mistake of fact. Sturgis V. Preston, 134 Mass. 372 (1883). X. For Money paid illegally; or on Compulsion, or Duress. Plaintiff found a large sum of money, which he withheld, making no effort to find the owner, until the loss was advertised, and a reward offered, when plaintiff restored the money to the owner and received the reward. He was then complained of and arrested for a violation of Gen. Sts. c. 79, § 1. He pleaded guilty, and was told by the magistrate that the law required him to return the amount re- ceived as a reward. He returned it accord- ingly, and afterwards sued to recover it back. 81 ATTACHMENT. 82 Held, in an action for money had and received, that his arrest was legal, and that the evi- dence would warrant a finding that the money was repaid by him voluntarily, and not under duress. Felton v. Gregory, 130 Mass. 176 (1881). XI. Account Annexed. 1. A. and B., partners, made a contract with C. to do certain work for him. Before the work was completed, the partnership was dis- solved, and the work completed afterwards, so that nothing remained but for C. to make payment as agreed. Held, that the dissolu- tion of the partnership did not affect the right of A. and B. to sue jointly upon an ac- count annexed. Fish v. Gales, 133 Mass. 441 (1882). 2. In an action on an account annexed, if certain items are satisfactorily proved, they should not be struck out merely because they do not appear in the plaintiff's books of ac- count. Boston §• Fairhaven Iron Works v. Montague, 135 Mass. 319 (1883). 3. Under a count on an account annexed, the plaintiff may recover money to which he is entitled as commissions, for the use of chat- tels, for work done, for the use and occupa- tion of rooms, and for money paid at the defendant's request, under a contract with the defendant not under seal, which has been per- formed. Bowen v. South Building, 137 Mass. 274 (1884). 4. If the owner of a building agrees in writ- ing, not under seal, with A., that, in consid- eration of A.'s taking care of the building, he will allow him the use of certain rooms in the building, and the owner either refuses to let A. into possession of all of the rooms, or, after he is in possession, evicts him, and lets these rooms to a third person, A. cannot maintain an action against the owner, on an account annexed, for the rent of these rooms. Bowen v. South Building, 137 Mass. 274 (1884). 5. If one party to a contract has not fully performed it, but has, in good faith, done what he believes to be a compliance with it, and the other party receives a benefit thereby, the former can recover, in an action upon an account annexed, the value of his work and materials, not exceeding the contract price, after deducting the damages which the other party has sustained by the breach of the terms of the contract. Blood v. Wilson, 141 Mass. 25 (1886). XII. Pleadings; Evidence; Judgment. See also these titles respectively. 1. The answer to a declaration upon an ac- count annexed alleged that the plaintiff and the defendant accounted together, and the items of the plaintiff's claim against the de- fendant were passed upon and the amount of the items adjusted and agreed upon, and that the moneys owing from the plaintiff to the defendant were agreed upon, and a certain sum agreed upon by the parties, on accounting together, as the balance found due to the plaintiff, and in, full settlement to a data specified. Held, on demurrer, that the de- fence of insimul computassenl was sufiiciently pleaded. Rand v. Wright, 129 Mass. 50 (1880). 2. A declaration alleged that the plaintiff and defendant entered into a written contract, a copy of which was annexed; that the plain- tiff was induced to execute it by fraudulent misrepresentations of fact by the defendant ; that the plaintiff was not bound by it, but was entitled to recover what the labor performed and furnished was reasonably worth ; and con- cluded with an allegation like that contained in an account annexed. Held, that it was a good declaration on an account annexed ; and that the unnecessary averments might be re- jected as surplusage. Simmons v. Lavrrence Duck Co., 133 Mass. 298 (1882). 3. In an action upon an account annexed, the defence of accord and satisfaction is not open under an answer containing a general denial, and alleging payment. Grinnell v. Spink, 128 Mass. 25 (1879). 4. A count in indebitatus assumpsit for goods sold upon a credit will not lie until the credit has expired. Such a count imports an allega- tion either that there was no credit or that it has expired. Where, therefore, the evidence shows that the goods were sold upon a credit which had not expired at the date of the writ, there is a fatal variance, although the answer contains a general denial only. The question is not one of pleading by the defendant, but of proof by the plaintiff. Wilder v. Colby, 134 Mass. 377 (1883). 5. A declaration alleged that the plaintiff and defendant entered into a written contract, a copy of which was annexed; that the plain- tiff entered upon the performance of the con- tract, but the defendant neglected to perform his part thereof, and prevented the plaintiff from performing the contract, whereby the plaintiff was greatly injured and damaged; and concluded with an allegation like that con- tained in an account annexed. Held, that the count contained two inconsistent causes of action, and was bad. Simmons v. Lawrence Duck Co., 133 Mass. 298 (1882). ATTACHMENT. I. What is oe is not Attachable. II. Validity of Attachments. III. How Defeated ok Dissolved. (a) Negligence or Misconduct of Officer, (j) Amendments. (c) Lapse of Time after Judgment. (d) Giving Bond. IV. Effect op Attachment ; Rights and Liabilities thereupon. Of suits in equity to reach property not at- tachable at law, see Equity, IV. See Execution, Trdstee Process. ATTACHMENT, I., II. 84 I. What is or is not Attachable. 1. If A. holds national bank stock as trus- tee for B., A.'s creditor can acquire no rights in the stock by attachment, although neither the bank nor the creditor had notice of the trust, the certificate issued by the bank to A., and assigned to B., not having been trans- ferred on the books of the bank in accordance with its by-law. Sibley v. Quinsigamond Bank, 133 Mass. 515 (1882). 2. Notwithstanding that it is settled in this Commonwealth that if land is conveyed to A. by deed, and A. immediately conveys the land to B., so that the deeds are part of the same transaction, the seisin being instantaneous and only for the purpose of conveyance, the land is not the subject of attachment by a creditor of A., yet, if the deed to B. is with- held from record, so that the record title shall appear to be in A., a bona fide creditor of A., ■without notice, may attach the land as his, and such attachment will take precedence of the deed to B. recorded afterwards. Wood- ward V. Sartwell, 129 Mass. 210 (1880). 3. The title of one who purchases land of a fraudulent grantee, before the land is specifi- cally attached under Gen. Sts. o. 123, § 55, is good as against the creditors of all previous owners, in the absence of evidence of a par- ticip^ion by such purchaser in the fraud, or of evidence that his deed was without con- sideration. Mansfield v. Dyer, 131 Mass. 200 (1881). 4. At the trial of an action against an of- ficer for attaching the plaintiff's goods, the evidence was that the defendant attached the " stock of goods " in the plaintiff's stoi'e; and that a certain person had a mortgage upon "said stock of goods." Held, that the de- fendant was not entitled to a ruling that there was no evidence that all the stock of goods in the store at the time of the attachment was included in the moi'tgage, and that an attach- ment of goods not included in the mortgage would be lawful. Allen v. Wright, 136 Mass. 193 (1883). 5. Under the Pub. Sts. c. 161, §§ 38, 39, railroad cars are, for the purposes of attach- ment, personal property; and an attachment of them in the manner pointed out in the Pub. Sts. c. 161, § 69, is sufficient. Hall v. Carney, liOMass. 131 (1885). 6. The interest of a mortgagee in personal property mortgaged to him is not subject to attachment ; and such interest cannot be made attachable, by joining the mortgagor and mortgagee as defendants in an action upon a joint debt. Murphy v. Galloupe, 143 Mass. 123 (1886). II. Validity of Attachments. 1. In an action against an officer for the attachment of the plaintiff's goods on a writ against a third person, there was evidence that the officer went to a carrier, in whose cus- tody the goods were, and told him he had come to attach the goods ; that, on the carrier refusing to deliver the goods to any one until the freight was paid, the officer went away; that afterwards, on being told that the goods belonged to the plaintiff, he said nothing ex- cept to refer his informant to the attorney who made the writ ; and that his return on the writ stated that he had attached the goods. Held, that the defendant had no ground of excep- tion to a refusal to rule that there was no evi- dence of an attachment. Steams v. Dean, 129 Mass. 139 (1880). 2. When it is necessary to determine the exact time when an attachment was made, the hour, if not stated in the officer's return, may be proved by other evidence. Garity v. Gigie, 130 Mass. 184 (1881). 3. A voluntary assignment by a debtor in another State of all his property situated in this Commonwealth, in trust for his creditors, the only consideration for which is the accept- ance of the trust by the assignee, although valid in the State where made, is invalid as against a subsequent attachment of his per- sonal property by a creditor in this Common- wealth not assenting to the assignment ; and a subsequent assent to the assignment by ci-editors in the other State, by proving their claims under it, cannot defeat the title acquired by the attachment here. Pierce v. O'Brien, 129 Mass. 314 (1880). 4. If A. owes a debt to B. and C. , partners, a valid attachment cannot be had in a suit against B. alone; but, the plaintiff's writ be- ing amended by joining C. as a defendant, A. still continuing to hold the fund, and the rights of no third persons having intervened, the attachment becomes valid, and the trustee mav be charged upon his original answer. Sullivan v. Langley, 128 Mass. 235 (1880). 5. Land conveyed to a single woman was attached after her marriage, in an action against her by her maiden name, the creditor being ignorant of the marriage. Judgment was afterwards recovered against her by the same name, and the land was sold on execu- tion. After the attachment and before judg- ment, the woman, by her married name, and adding her former name, mortgaged the same land to a person who had no actual notice of the attachment. Held, that the attachment took precedence of the mortgage, and that the fact that, after her marriage and before the attachment, she made a conveyance of other land in the same county by her married name, was not constructive notice to the at- taching creditor of the marriage. Cleaveland V. Boston Five Cents Savings Bank, 129 Mass. 27 (1880). 6. A general attachment of all the right, title, and interest of the defendant in land, is a valid attachment. Woodward v. Sartwell, 129 Mass. 210 (1880). 7. Under the Pub. Sts. c. 192, § 1, an attachment of mortgaged personal property which is not delivered to the mortgagee, made after delivery of the mortgage but be- fore it is recorded, takes precedence of the mortgage, although the latter is recorded within fifteen days after its date. Drew v. Streeter, 137 Mass. 460 (1884). 85 ATTACHMENT, III. 86 8. In 1873, an attachment was made of all the real estate of C. in a certain county. At that time C. appeared on the records of the registry of deeds as owning a third mortgage on a parcel of land in the county, but nothing more. In fact, this mortgage, and also a second mortgage, the assignment of which to him had not been recorded, had been assigned by C. to A. after entry for breach of condi- tion. These assignments to and by him were recorded in 1881. At the time of the attach- ment, he owned the equity of redemption, but the conveyance to him was not recorded until 1881, although before the above-named assign- ments were recorded. Hdd, that A. could maintain a writ of entry, to recover the prem- ises, against the purchaser at an execution sale in pursuance of the attachment. Cowley v. McLaughlin, 141 Mass. 181 (1886). 9. The levy of an execution upon land, at- tached ou a writ against a person, to whom it was conveyed by a deed absolute in form, but which was, in fact, given as security for a debt of the grantor to him, is invalid, if the attaching creditor had notice, before the at- tachment was made, of the grantor's interest in the land. Clark v. Watson, 141 Mass. 248 (1886). 10. If land is conveyed by a deed absolute in form, but which is, in fact, given as secu- rity for a debt, a declaration, signed by the grantor, and not by the grantee, and recorded, setting forth the purpose of the conveyance, will not defeat the levy of an execution upon the land, attached on a writ against the gi'an- tee, if the attaching creditor had no notice, before the attachment was made, of the gran- tor's interest in the land. Clark v. Watson, 141 Mass. 248 (1886). III. How Defeated or Dissolved. By proceedings in Bankruptcy or Insol- vency, see Bankruptcy; Insolvency. (a) Negligence or Misconduct of Officer. 1. If an officer, who has attached several articles of personal property, which have been appraised, under Gen. Sts. c. 128, § 77, at a round sum, dissolves the attachment on one of the articles before the sale, it does not render the sale of the remaining articles illegal, if the debtor did not offer to deposit the money or give the bond permitted by Gen. Sts. c. 123, § 78, to prevent the sale. Wheeler V. Raymond, 130 Mass. 247 (1881). 2. The appraisement of several articles of attached property, under Gen. Sts. c. 123, § 77, is not invalid because the appraisers do not state in their certificate the separate value of each article in the schedule prepared by the attaching officer, but appraise the whole prop- erty at a round sum. Wheeler v. Raymond, 130 Mass. 247 (1881). 3. The charging by an officer of unlawful fees upon the writ on which he attaches per- sonal property does not avoid a sale of the property, or make him a trespasser ab initio as to the debtor. Wheeler v. Raymond, 130 Mass. 247 (1881). 4. The fact that an officer, who has attached several articles of personal property, which have been appraised, under Gen. Sts. c. 123, § 77, sells more than enough to realize the amount called for by his precept, will not ren- der the sale illegal, if the last article sold was indivisible, and the requisite amount wp.s not realized previous to its sale. Wheeler v. Ray- mond, 130 Mass. 247 (1881). (b) Amendments. 1. The amendment of a writ, by changing the name of the plaintifE from " Mary Cain " to " Ann Cain," does not vacate an attach- ment of funds in the hands of a person sum- moned as trustee, so as to give an assignment to a third person, made before the amend- ment, preference over the attachment. Cain V. Rockwell, 132 Mass. 193 (1882). 2. The amendment of a writ against " Wil- liam Robinson," by inserting the words " otherwise called William J. Robinson," does not vacate an attachment of personal property, so as to give a mortgage of the property to a third person, made after the attachment and before the amendment, pri- ority over the attachment, of which the mort- gagee was ignorant. Dieltrich v. Wolffsohn, 136 Mass. 335 (1884). (c.) Lapse of Time after Judgment. 1. If land of a debtor, unincumbered by mortgage, is attached on mesne process, and afterwards seized under Gen. Sts. c. 103, upon an execution issued on a judgment, and the officer suspends proceedings for more than two months on account of a prior attachment ex- isting on the land, and, after the dissolution of the attachment, gives notice to the debtor of a sale of the land, under St. 1874, c. 188, the levy will be deemed to have been made at the time of such notice, and is ineffectual as against a title acquired by deed from the debtor recorded after the judgment, and be- fore the notice of sale is given. Hardy v. Safford, 132 Mass. 332 (1882). (d) Giving Bond. 1. Upon a bond given under St. 1877, c. 97, by a person having an interest in money or credits attached by trustee process to dis- solve such attachment, with condition to pay to the plaintifE the sum for which the trustee may be charged, if any, within thirty days after final judgment, no action can be main- tained, if the trustee has been discharged in the trustee process. Porter v. Giles, 129 Mass. 589 (1880). 2. If an action is brought against A. and B. jointly, and process is served only upon A. and his property alone attached, and a bond is given by a third person to dissolve the at- tachment, in which the action is described as against A. alone, and the condition is to pay Any judgment that may be recovered in that 87 ATTORNEY AND COUNSELLOR. 88 action, and judgment is rendered against A. alone, the bond sufficiently identifies the ac- tion. Central Mills v. Stewart, 133 Mass. 461 (1882). 3. A bond to dissolve an attachment, duly executed by a third person, who receives the property attached, by which he agrees to pay the amount of any judgment which may be recovered by the creditor in the action in ■which the attachment was made, is given upon sufficient consideration, and is valid, although it does not contain the condition required by St. 1875, c. 68, § 2. Central Mills V. Stewart, 133 Mass. 461 (1882J. 4. The refei-ence of a case, after its entry in court, by agreement of parties and by a rule of court in common form, is not a dis- charge of the sureties on a bond given to dis- solve the attachment. Seavey v. Beckler, 132 Mass. 203 (1882). 5. The amendment of one of two counts of a declaration inserted in the writ does not discharge a surety on a bond given to dissolve the attachment in the action from liability for the amount sued for in the count not affected by the amendment. Warren v. Lord, 131 Mass. 560 (1881). 6. Under Gen. Sts. o. 123, § 104, and St. 1870, c. 291, § 5, upon the due approval and filing of a bond given to dissolve an attach- ment, the attachment is by law dissolved, without any order of court to that effect. O'Hare v. Downing, 130 Mass. 16 (1880). 7. Gen. Sts. c. 123, §§ 87, 88, providing that personal property, which has been at- tached in a suit against one part owner, shall, at the request of the other part owner, be ap- praised and delivered to him upon his giving bond to the attaching officer, do not apply to an attachment of partnership property in an action against one partner. Breck v. Blair, 129 Mass. 127 (1880). 8. Upon a bond given under the St. of 1877, c. 97, by a person having an interest in money or credits attached by trustee process, to dissolve such attachment with the condi- tion to pay to the plaintiff the sum for which the trustee may be charged, if any, within thirty days after final judgment, no action can be maintained if the trustee has been de- faulted, and, although adjudged a trustee, has not been charged for any sum. Cunningham V. Hogan, 136 Mass. 407 (1884). IV. Effect of Attachment ; Eights and Liabilities thereupon. 1. If an officer attaches personal property on a writ in favor of A., and then makes a second attachment of the same property on a writ in favor of B., and is afterwards re- quested by A. to have the property appraised and sold, by a written request signed by A., " by B., his attorney," B. being the same person who was plaintiff in the second action, the notice required by Gen. Sts. c. 123, § 74, need not be given by the officer. Wheeler v. Raymond, 130 Mass. 247 (1881). 2. Although, under Gen. Sts. c. 123, § 55, a general attachment of real estate, which has been fraudulently conveyed by a debtor to a third person, is not valid against a creditor making a subsequent special attachment, yet, where the land is sold on an execution ob- tained by the creditor making the general attachment, and the proceeds are applied first in satisfaction of his judgment, and then in satisfaction of the judgment obtained by the creditor making the special attachment, with his consent, and both judgments are fully sat- isfied, the statute is no defence to a writ of entry brought by the purchaser at such sale to recover possession of the land. Owen v. Neveau, 128 Mass. 427 (1880). 3. The seizure and actual removal of spe- cific chattels of a partnership, on mesne pro- cess against one member thereof for his private debt, and the exclusion of the firm from the possession of the property, are a trespass, for which an action against the officer may be maintained by the members of the firm. San- horn V. Royce, 132 Mass. 594 (1882) ; Craw- ford V. Capen, 132 Mass. 596, note (1882). 4. Money held under an invalid attachment may be recovered of the attaching officer in an action for money had and received. Allen V. Butman, 134 Mass. 347 (1883). 5. The owner of property does not, by re- ceipting for it upon its being attached as the property of another, preclude himself from afterwards asserting his title to the property. Edmunds v. Hill, 133 Mass. 445 (1882). 6. At the trial of an action against an offi- cer for attaching the plaintiff's goods, the de- fendant justified under a writ, which described a person summoned as trustee as the " mort- gagee " of the plaintiff ; and throughout the trial the defendant treated the property at- tached as mortgaged property. Held, that the defendant was not entitled to a ruling that there was no evidence of any mortgage on the plaintiff's goods, or that the mortgage, if any, was recorded. Allen v. Wright, 136 Mass. 193 (1883). ATTESTATION. Of Records, see Appeal, V. pi. 3. Of WiUs, see Will. ATTORNEY AND COUNSELLOR. 1. Under St. 1876, c. 197, an unmarried woman is not entitled to be examined for admission as an attorney and counsellor of this court. Robinson's case, 131 Mass. 376 (1881). But see St. 1882, c. 139, providing that the provisions of law relating to the qualification and admission to practice of attorneys at law shall apply to women. 2. An affidavit, made and signed by the attorney of one party to an action, — stating that a material witness is sick and unable to 89 AUCTION AND AUCTIONEER. 90 attend the trial, and would, if present, testify- to certain facts set forth, as be has been in- formed by his client, — and filed for the pur- pose of procuring a continuance of the trial, which is refused, upon the adverse party ad- mitting that the witness would, if present, testify to the facts stated in the affidavit, and agreeing that the same should be received and considered as evidence, is not admissible in evidence for the adverse party, upon the witness appearing and testifying materially differently from what it was stated in the affidavit he would testify to, it not appearing that the affidavit was known to or authorized by the party in whose behalf it was made, and there being nothing to show that the error in stating what the witness would testify to was not an innocent mistake of the attorney. Mur- ray V. Chase, 134 Mass. 92 (1883). 3. A. delivered to an attorney at law, before its maturity, a negotiable note for collection indorsed in blank. The attorney deposited the note in a bank where he kept an account. No statement was made by the attorney, and the deposit was made, apparently, in the usual course of business. The bank collected the note, and credited the amount to the account of the attorney, who was indebted to the bank. The attorney became bankrupt, and the bank made a settlement with his assignees, in which settlement the amount of the note was included. A year afterwards, A. first ascertained the facts. Held, that he could not maintain an action against the batik. Wood V. Boylston Bank, 129 Mass. 358 (1880). 4. A defamatory statement contained in the declaration in an action, signed by counsel, if not pertinent or material to the issue, is not privileged; and, in an action of libel against the counsel, he cannot justify by showing his belief that it was true, the sources of his in- formation, or his instructions from his client. McLaughlin v. Cowley, 131 Mass. 70 (1881). 5. An agreement between an attorney and client, by which the attorney is to prosecute an action for a sum of money in which he has himself no previous interest, and to receive, in case of success, one half of the sum re- covered after deducting the costs of the action, and nothing in case of failure, is unlawful, and void for champerty and maintenance; and the client may maintain an action for money had and received against the attorney for the whole amount so recovered, less the costs paid by him. Ackert v. Barker, 131 Mass. 436 (1881). 6. An attorney, who has received the fee prescribed by acts of Congress for services rendered in procuring a pension, cannot main- tain an action against a person other than the pensioner, to recover additional compensation, such person having promised to pay for the services as much as they reasonably were worth. Such an action is barred by U. S. Kev. Sts. §§ 4783, 4786, 5485, and U. S. St. June 20, 1878, which clearly prohibit the re- ceiving of additional compensation for such services, not only from the pensioner, but from any person. Wolcott v. Frissell, 134 Mass. 1 (1883). 7. An attorney at law, who places his name under the words, "From the office of," on the back of a writ in favor of a resident of another State, is liable, as iudorser, for costs. Morrill v. Lamson, 138 Mass. 115 (1884). . 8. If an a,ttorney at law indorses a writ in favor of a resident of another State, he can- not set up in defence to a, scire facias to en- force a judgment for costs awarded against such party, that, in so doing, he violated a rule of the court, prohibiting an attorney from becoming bail or surety in any civil suit or proceeding in which he is employed as such attorney. Morrill v. Lamson, 188 Mass. 115 (1884). 9. The authority of an attorney at law to collect a debt does not cease on his obtaining a judgment and execution, and if, by his pro- curement, or that of his clerk acting within the general scope of his employment, the judgment debtor is illegally arrested, the principal of the attorney is liable therefor. Shattuck V. Bill, 142 Mass. 56 (1886). ATTORNEY GENERAL. 1. The Attorney General has the' right, in the name and behalf of the Commonwealth, at his own discretion, to file an information against one usurping a public office ; the court has no authority to grant or to withhold leave to file it; and the mention of relators in the information is mere surplusage, which does not affect the validity of the information, or the form of the judgment to be rendered thereon. Commonwealth v. Allen, 128 Mass. 308 (1880). 2. 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 so abusing or perverting its powers as to create a public nuisance or injuriously to af- fect or endanger the public interests. As, for instance, when a corporation having the right to draw, for water supplies, water from one of the. great ponds of the Commonwealth, but not tiie right to reduce the level of the water below a specified limit, is sinking wells and conducting operations, the effect of which will be to reduce the level below the limit, thus impairing the rights of the public and creating a nuisance. Attorney General v. Jamaica Pond Aqueduct Co., 133 Mass. 361 (1882). See also Information; Quo Warranto. AUCTION AND AUCTIONEER. Land was sold under a power in a mort- gage for a sum more than sufficient to pay the mortgage debt, and the mortgagee refused to execute a deed to the purchaser, on the ground that the purchaser had not paid down fifty dollars iu cash as required by the terms of 91 AUDITOR OP ACCOUNTS. 92 sale. It appeared that the purchaser, when he bid off the estate, did not have the sum, but that the auctioneer agreed to advance it, and told the mortgagee that the purchaser had paid it, and that the money was ready for him. Held, that this being so, and the auctioneer being ready to pay, the effect was the same as if the sum had been paid in fact by the purchaser to the auctioneer. Muhlig v. Fiske, 131 Mass. 110 (1881). AUDITOR; ASSESSOR. 1. Judgment is correctly rendered for the amount found by an auditor, if his report is the only evidence at the trial. Eagan v. Luby, 133 Mass. 543 (1882). 2. Where, upon the facts reported by the auditor, the defendant clearly was liable, — Held, that the jury were properly instructed that the report y^as prima facie evidence, upon which, in the absence of other evidence, they were required to find for the plaintiff. Lyons V. Richer, 128 Mass. 452 (1880); Ford v. Burchard, 130 Mass. 424 (1881). 3. An ^auditor's report does not shift the burden of proof, technically speaking, which is on a party to establish a fact essential to the maintenance of his case ; yet, as the report is prima facie evidence of the facts found by it, it is incumbent on the other party to meet and control it, or it will be conclusive against him, and will authorize the jury in finding the facts as found by the report. Phillips v. Cornell, 133 Mass. 546 (1882). 4. Where an auditor's report in favor of one party states particular facts from which a conclusion in favor of either party may be inferred, the jury, from those facts, without other evidence, may give a verdict against the conclusion of the auditor. Emerson v. Patch, 129 Mass. 299 (1880). 5. A hearing before an auditor, who deter- mines nothing finally, but whose report is, by Gen. Sts. c. 121, § 46, only prima facie evi- dence upon a subsequent trial before the court or jury, is not a "trial," within the meaning of U. S. Rev. Sts. § 639, cl. 3, giving the right to remove a cause before trial from a State court into the Circuit Court of the United States ; and consent to the appointment of an auditor is no waiver of such right of removal. Stone V. Sargent, 129 Mass. 503 (1880). 6. In an action for the conversion of chat- tels, the plaintiff is not precluded from put- ting in evidence of their value by the fact that he offered no evidence on this point before an auditor, to whom the case had been referred. Fletchers. Powers, 131 Mass. 333 (1881). 7. A motion to recommit an auditor's re- port is addressed to the discretion of the court, and the decision thereon is not open to excep- tion. Butteneorth v. Western Assurance Co., 132 Mass. 489 (1882). 8. An auditor's report, though prima facie evidence, does not change the burden of proof. Lonergan v. Peck, 136 Mass. 361 (1884). 9. An action for the conversion of personal property was referred to an auditor, whose re- port found that the defendant converted to his own use the chattels specified in the declara- tion; and that he "owes the plaintiff upon the various items of account the sum of money respectively opposite each item," setting forth a sum certain in respect of each. Held, that the report plainly implied that the property belonged to the plaintiff ; and that an objec- tion to the sufficiency of the report upon that point was untenable. McMahon v. O'Connor, 137 Mass. 216 (1884). 10. In an action on a probate bond, the find- ings of an assessor upon matters of fact will not be revised by this court upon exceptions thereto, if they are established by a fair pre- ponderance of the evidence introduced be- fore him. McKim v. Blake, 139 Mass. 593 (1885). 11. In an action upon a policy of insurance, which has been referred to an auditor, a re- quest to have the jury instructed that the auditor's report " is not entitled to great weight " is properly refused. Clement v. Brit- ish American Assurance Co., 141 Mass. 298 (1886). 12. If an action for goods sold and delivered is referred to an auditor, whose report does not set out the evidence, but finds that charges for boxes, barrels, packing, and carting were on the bills of parcels sent with the goods, to which no objection was made at the time, and were in accordance with a custom of mer- chants, this court will not sustain an objec- tion that no recovery can be had for the same. Rogers v. Holden, 142 Mass. 196 (1886). 13. If an action for goods sold and delivered is referred to an auditor, who does not report the evidence, his finding, allowing all the items of the account, including those which did not accrue within six years before the date of the writ, if he finds no fact in conflict therewith, is final, the case being tried on the auditor's report alone. Rogers v. Holden, 142 Mass. 196 (1886). 14. If an auditor to whom a case has been referred reports general findings in favor of the plaintiff, but also reports the particular facts and evidence upon which he bases such findings, the defendant has the right to go to the jury upon the auditor's report; and it is error to take the case from the jury, and direct a verdict for the plaintiff. Peaslee v. Ross, 143 Mass. 275 (1887). AUDITOR OF ACCOUNTS. St. 1879, c. 256, § 1, by which it is enacted that " the auditor of accounts of the city of Boston shall be the auditor of the county of Suffolk ; and hereafter all bills for county salaries, expenses, and disbursements shall be examined, audited, and allowed by Said audi- tor prior to the paymeYlt thereof," is intended to regulate the internal administration of mu- nicipal affairs, and does not deprive a creditor 93 BAILMENT. 94 of his right of action against the county, at least after his claim has been represented to the auditor, and to the board of aldermen act- ing as county commissioners, and they have refused to allow it. A writ of mandamus, therefore, will not be granted to compel the auditing of an account against the county. Wheelnck v. Suffolk County Auditor, 130 Mass. 486 (1881). AUTOPSY. See Medical Examiner. AUTREFOIS ACQUIT AND AUTRE- FOIS CONVICT. 1. Neither the judgment of a magistrate, upon a complaint of which he has concurrent jurisdiction with the Superior Court, that the defendant be discharged for want of probable cause to believe him guilty, nor the judgment of the magistrate that there is probable cause to believe the defendant guilty, and that he recognize for his appearance in the Superior Court, can be pleaded in bar to a subsequent indictment for the same offence. Common- wealth V. Hamilton, 129 Mass. 479 (1880). 2. At the trial of a complaint alleging that the defendant, on a day named, kept intoxi- cating liquors with intent to sell the same unlawfully, a record of proceedings which re- sulted in favor of the defendant, for the seiz- ure and forfeiture of certain intoxicating liquors, alleged to have been kept by the de- fendant on the same day named in the present complaint, with intent to sell the same un- lawfully, is inadmissible, in the absence of evidence that the time relied on by the gov- ernment was the same in both cases, although it is admitted that the liquors described in the two complaints were the same. Common- wealth V. Doyle, 132 Mass. 244 (1882). 3. At the trial of a complaint for keeping intoxicating liquors with intent unlawfully to sell the same, there was evidence that the de- fendant had been acquitted on a charge of keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxi- cating liquors, upon the same evidence as that produced at the present trial. The judge ruled that such judgment of acquittal was evidence competent to be considered by the jury in the defendant's favor, but was not conclusive. Held, that the defendant had no ground of exception. Commonwealth v. Han- leg, 140 Mass. 457 (1886). AWARD. See Arbitrament. B. BACK BAY. See Equity; Easement. BAIL. See also Bond ; Recognizance. 1. A defendant, described in the writ as having his residence in Cambridge, in the county of Middlesex, and as having his usual place of business in Boston, in the county of Suffolk, was arrested on mesne process by a constable of Boston, and gave bail. An ex- ecution issuing in the action was delivered to the same officer who made the arrest, and he made a return of non est inventus thereon. Held, that this was sufficient to charge the bail on scire facias. Way v. Briqham, 138 Mass. 384 (1885). 2. The death of a judgment debtor, after a return of non est inventus upon the execution issued on the judgment, and before final judg- ment on a scire facias, does not discharge his bail, in an action began prior to the St of 1884, c. 260. Way v. Brigham, 138 Mass. 384 (1885). BAILMENT. See also Agent, VII. pi. 1; Carrier; Innholder; Pledge; Railroad; Trover; Wareho useman. 1. Where the violation of the terms of a lease or bailment of a chattel tends to show the assumption of dominion over, and owner- ship of, the chattel, by the lessee or bailee, this is evidence of a conversion of the chattel. Goell V. Smith, 128 Mass. 238 (1880). 2. A person who hires a horse of its owner to drive to a particular place, and in returning unintentionally takes the wrong road, and, after traveUiug on such road a few miles, dis- covers his mistake and takes what he con- siders the best way back to the place of hiring, which is by a circuit through another town, is not liable in trover for the conversion of the horse. Spooner v. Manchester, 133 Mass. 270 (1882). 3. A bailee for hire of a chattel, which he agrees to return "in as good order as when received, customary wear and tear excepted," is liable for injury to the chattel from inevi- table accident. Harvey v. Murray, 136 Mass. 377 (1884). 4. In an action for negligently keeping the plaintiff's goods, the report of an auditor 95 BANK. 96 stated that the defendant was the proprietor of a building which he let in suites to tenants for housekeeping purposes, furnishing them with attendance, heat, and water; that the plaintiff had a lease of one of the suites, and desired more room for storing trunks; that the defendant told him there was a general store-room in which he might put them; that the assistant janitor slept there, and he thought they would be safe; that he had em- ployed a competent man, who would guard the goods; that the plaintiff afterwards put his trunks there; that afterwards the assist- ant janitor went away and did not return; and that then the contents of the plaintiff's trunks were found to have been stolen. The report furtlier stated that the auditor found, that, on these facts, the defendant was not an innholder, and was not guilty of gross negli- gence; and that the plaintiff could not main- tain his action. Held, that no error of law ap- peared. Davis V. Gay, 141 Mass. 531 (18S6). 5. A. went to the shop of B., a tailor, to try on a suit of clothes which he had ordered to be made for him. He was directed by a clerk of B. to a closet in which to hang up the clothes he was wealing and put on the new suit. This closet was used by the clerks of the shop as a place in which to hang up their coats, and as a dressing-room for cus- tomers. A. hung up his clothes in the closet, put on the new suit, and went to a mirror about thirty feet distant and in the..farther end of the room therefrom, to have his suit fitted, no one being present in the room but A. and the clerk. A. then returned to the closet, meeting a person coming out as he entered it, and found that his pocket-book, watch, and other personal property, which he had left in his clothes hanging in the closet, had been stolen. A. brought an action against B. to recover the value of the property so stolen. The judge, who tried the case with- out a jury, found and ordered judgment for the defendant Held, that no error of law appeared. Rea v. Simmons, 141 Mass. 561 (1886). 6. A contract of bailment, made by the bailee with the agent of an undisclosed prin- cipal, who is a minor, cannot be rescinded by the bailee on the ground of the bailor's mi- nority, without delivering the goods to him, even if the contract is voidable; and it is im- material that the bailee would not have made the contract, if he had known that the bailor was a minor. Stiff v. Keith, 143 Mass. 224 (1887). BANK. See also Bills and Notes; Check; Col- lateral Secukity; Payment. Savings Bank, see Savings Bank. Transfer of Shares, see Corporation, III. 1. As to the duties of a cashier, and the extent to which the bank is chargeable with knowledge of facts known by him concerning collaterals pledged to the bank by a trustee for his own debt, see Loring v. Brodie, 134 Mass. 453 (1883). 2. The directors of a bank, at a regular meeting, appointed its president, its cashier, and a director, a committee on alterations of a building it had bought, and on which exten- sive repairs were to be made. At a subse- quent meeting of the board, complaint was made tliat no one was superintending the work, and the president, after consultation with the other membei-s of the committee, and with the knowledge of the directors, but without any other vote having been passed upon the subject, devoted all his time, except what was required for his duties as president, to superintending the work for a period of six months. If he had not done so, it would have been necessary to have employed a super- intendent. Held, in an action by the presi- dent on an implied promise of the bank, for the value of his services as superintendent, that the facts would not warrant a verdict in his favor. Pew v. Gloucester Bank, 130 Mass. 391 (1881). 3. The directors of a bank by vote fixed the salary of the president at $400 a year. The plaintiff acted under this vote as president for four years, then demanded an increase of salary, and verbally resigned his office. A committee of conference i-eported, at a sub- sequent meeting of the directors, that the plaintiff would not serve as president unless his salary was $2,000; after this report, the directors passed a vote fixing the salary at $400 ; and, at their next meeting, a vote was passed approving the record of the last meet- ing; and the plaintiff, in ignorance of these votes, came into the meeting and presided, saying, " At your request, and upon the as- surance that the salary shall be arranged to my satisfaction, I withdraw my resignation." Nothing was said in reply by any of the direc- tors ; and the plaintiff continued to act as president for four months longer, when, there having been no other vote passed fixing his salary, he resigned, and his resignation was accepted. Held, in an action by him against the bank, that there was no contract, express or implied, to pay him as salary more than $400 a year. Pew v. Gloucester Bank, 130 Mass. 391 (1881). 4. The rules of an association of banks, or- ganizing a clearing-house for the purpose of effecting exchanges between themselves at one time and place daily and the payment at the same place of the resulting balances, fixed a time before noon for making exchanges at the clearing-house, and a time between noon and one o'clock for paying balances there. The practice under the rules was for the exchanges and payments to be made according to tick- ets accompanying vouchers presented for ex- change, and not from an examination of the vouchers themselves in detail. The rules also provided that errors in the exchanges should be adjusted directly between the banks; and that, whenever checks which were not good should be sent through the clearing-house, the banks receiving them should retui'n them to 97 BANK. 98 the senders as soon as it should be found that they were not good, " and in no ease shall they be retained after one o'clock." Held, in the absence of evidence of a uniform custom, among the banks which were members of the clearing-house, to treat notes the same as checks, that the sending of a note through the clearing-house to a bank at which it was pay- able was not a formal demand for immediate payment made during business hours, but was equivalent to leaving the note at the bank for collection from the maker on or before the close of banking hours; and that the payment of such a note at the clearing-house was a pro- visional payment only, which became complete when the note was paid in the usual and ordi- nary course of business, and, if not so paid, the payment at the clearing-house was to be treated as a payment made under a mistake of fact to the same extent and subject to the same right of reclamation, although the note was retained until after one o'clock, as if it had been made without the intervention of the clearing-house. Held, also, that even if the bank at which the note was payable had funds of the maker of the note on deposit, the reten- tion of the note until after one o'clock did not amount to payment, in the absence of evidence that the maker had authorized the bank to pay his notes out of his money on deposit. Ex- change Bank v. Bank of North America, 132 Mass. 147 (1882). 5. In an action against the indorser of a promissory note, payable at the plaintiff bank, and discounted by another bank, it appeared that, when the note became due, the last-named bank charged it to the plaintiff bank and sent it to the clearing-house for payment; that the plaintiff's teller by mistake, thinking that' the maker of the note was in funds at the plain- tiff bank, stamped the word " paid " on the face of the note; that the mistake was soon discovered, and, before the close of banking hours on the same day, both the other bank and the indorser were notified of it, and the note was duly protested ; and that a dispute arose between the two banks as to whether the rules of the clearing-house had been complied with, which dispute was terminated by the payment of the amount of the note to the other bank by the plaintiff, without any waiver of its legal rights. Held, that the note was not paid, and that the defendant could not avail him- self, by way of defence, of the rules of the clearing-house, to which he was not a party. Manufacturers' Bank v. Thompson, 129 Mass. 438 (i880). 6. The fact that the A. bank, the holder of a note, indorses it to the B. bank for collec- tion, " for account of " the A. bank as holder, does not qualify the indorsement, so as to make the A. bank any the less the last in- dorser, within the rule regulating the notice necessary to indorsers. The duty of the B. bank to give the A. bank seasonable notice of the dishonor of the note is not varied by the fact that the indorsement on its face shows that it was made for collection. Lynn Bank V. Smith, 132 Mass. 227 (1882). 7. The owner of a negotiable promissory SUPPLEMENT. — 4 note, indorsed in blank by the payee, handed it to an attorney at law for collection. The attorney deposited it in a bank for collection, without stating for whose account. The bank collected it, credited the attorney with it, and applied the amount standing to his credit in part payment of the debt of the attorney to the bank. The attorney was subsequently ad- judged a bankrupt, and the bank made a set- tlement with his assignees, in which the amount of the note was included. The owner of the note, a year after the settlement, but as soon as he knew that the bank had collected the note, made a demand upon the bank for the proceeds of the note. Held, that he could not maintain an action therefor against the batik. Wood v. Boylston Bank, 129 Mass. 358 (1880). 8. The forfeiture of interest provided by U. S. Rev. Sts. § 5198, where a national bank has received a greater rate of interest on a promissory note than is allowed by the laws of the State when the note was made, in vio- lation of § 5197, may be availed of in defence of an action in a state court by the bank upon the note, although the suit is brought in a State other than that of the discount of the note; and such defence is not limited to two years after the unlawful receiving of interest; the limitation of two years applies to the time within which an action must be brought to recover back twice the amount of unlawful in- tereist paid. Peterborough Bank v. Childs, 130 Mass. 519 (188n. 9. Interest which has been received by a national bank upon such a note cannot be set off, in an action by the bank upon the note, against the amount of principal due thereon ; nor can the amount of interest unlawfully paid in advance by way of discount be thus set off; but the bank is entitled to recover the face of the note, without interest. Peterborough Bank V. ChihU, 133 Mass. 248 (1882). 10. Under Gen. Sts. c. 39, and St. 1873, c. 315, the stock of a national bank, belong- ing to an inhabitant of a school district in a town other than that in which the bank is situated, cannot be taxed for the purpose of defraying the expense of building a school- house in the district. Little v. Little, 131 Mass. 367 (1881). 11. B., as agent of a bank, sold goods pledged to the bank as collateral security for the payment of his promissory note, and wrongfully deposited the money received therefor to his own account in the bank; and, against the balance thus produced, he drew a check on the bank, which was paid by that bank to another bank through the clearing-house, of which both banks were members. The president of the bank on which the check was drawn, suspecting that B. was financially embarrassed, discovered that no payment had been made by B. on account of the goods entrusted to him for sale, and, looking at the condition of B.'s bank account, directed the return of the check to the bank to which it had been paid, after one o'clock of the day of such payment. The rules of the clearing-house 99 BANS. 100 provided that, whenever checks which were not good should be sent through the clearing- house, the banks receiving them should return them to the senders as soon as it should be found that they were not good, " and in no case shall they be retained after one o'clock." Held, that the check was paid under such a mistake of fact that the bank paying it could recover the amount from the bank to which it was paid, if the latter had not changed its position between one o'clock and the return of the check. Merchants' Bank v. Bank of the Commonwealth, 139 Mass. 513 (1885). 12. On a certain day, demand was made by a bank upon B. for payment of demand notes, which were then deemed to be amply secured by a pledge of goods as collateral security. Two days after this, B., who was a director in the bank, told the president of the bank that he had sold, or bargained to sell, a cer- tain quantity of goods, and the warehouse re- ceipts were delivered to B., as agent of the bank, to enable him to transfer the goods sold, with the understanding that the money re- ceived therefrom would be applied upon the debt for which they were held as collateral security. About a week afterwards, B. wrong- fully deposited the money received from the sale to his own account in the bank ; and three days later, against the balance thus pro- duced, he drew a check on the bank; which was paid by that bank to another bank through the clearing-house, of which both banks were members. The president of the bank on which the check was drawn, sus- pecting that B. was financially embarrassed, discovered that no payment had been made by B. on account of the goods entrusted to him for sale, and, looking at the condition of B.'s bank account, directed the return of the check to the bank to which it had been paid. Held, in an action by the bank paying the check to recover the amount thereof against the bank to which it was paid, that the plaintiff was not chargeable with laches in its dealings with B. Merchants' Bank v. Bank of the Commonwealth, 139 Mass. 513 (188o)> 13. If a bank is entitled to maintain an action to recover back the amount of a check paid by mistake to another bank through the clearing-house, the fact that the latter bank has credited the amount to the account of the customer depositing it does not render the de- positor, instead of such bank, liable to the action. Merchants' Bank v. Bank of the Com- monwealth, 139 Mass. 513 (1885). 14. In an action by one bank against an- other, to recover back the amount of a check paid through the clearing-house, under a mis- take of fact caused by the fraud of the drawer, the measure of damages is the difference be- tween the amount of the check and the amount for which he was entitled to draw ; and the fact that, where there is not enough money oq deposit to pay a check in full, the ordinary custom is to return the check, is immaterial. Merchants' Bank v. Bank of the Commonwealth, 139 Mass. 513 (1885). 15. A certificate, issued by a national bank, stating that a person named has deposited in the bank a certain sum, payable to the order of himself on return of the certificate properly indorsed, and understood between the bank and the depositor not to be payable until a future day agreed upon, is not in violation of the U. S. Rev. Sts. § 5183, forbidding national banks to issue any other notes to circulate as money than such as are authorized by its pro- visions. Hunt, appellant, 141 Mass. 515 (1888). 16. By the articles of association of a national bank, its capital might be increased according to the provisions of the U. S. Rev. Sts. § 5142, and each stockholder had the privilege of subsci-ibing for the increase in proportion to the number of shares already held by him. The directors also had the power to provide for an increase of capital and to regulate the manner in which it should be made. A by-law of the bank provided, that, when an increase of stock should be deter- mined on, the board of directors should notify the stockholders, and cause a subscription to be opened for the same ; and that if any stock- holder failed to subscribe for his proportion within a reasonable time, which should be stated in the notice, the directors might deter- mine what disposition should be made of the privilege of subscribing for the new stock. While these articles and this by-law were in force, the directors voted to double the capital stock, and a notice was sent to the stockhold- ers accordingly, which also stated when the subscriptions for the new stock were payable. No subscription-books were opened, but A., a stockholder, who held forty shares, paid the bank $4000, and took a receipt which stated that this sum was received " on account of subscription to new stock." The comptroller of the currency did not certify his approval of this increase of the capital stock, and the whole amount of the increase was not paid in. The bank suspended payment, and a bank ex- aminer was placed in charge of the bank by the comptroller of the currency, and he took possession of all the books and assets of the bank. While this state of things continued, the directors met, and passed a vote, which, after reciting the former vote, the amount paid in, and the amount not paid in, declared that the latter sura be cancelled and deducted from the capital stock, and that the paid up capital stock amounted to a certain sum, which was equal to the former capital and the amount paid in under the former vote. The comptroller of' the currency, upon being noti- fied of this vote, issued a cei-tificate that the capital stock was increased by a certain sum, being that paid in. On the same day, the comptroller of the currency notified the bank, that, as the entire capital stock was lost, an assessment of one hundred per cent was re- quired to make good the deficiency. After this, the bank made out a certificate for forty shares in the so-called increased capital, and A. was registered in the stock register of the bank as the- owner of forty shares. No notice was given to A. of the last vote, or of the ex- istence of the certificate,-and he never assented to any change in the proposed increase of the capital stock; but demanded back the money 101 BANKRUPT AND BANKRUPTCY, I., 11. 102 paid by him. Subsequently, the bank was allowed to resume business. Held, that A. could maintain an action against the bank to recover the $4000, and interest from the time of the demand. Eaton v. Pacific Bank, 144 Mass. 280 (1887). BANKRUPT And bankruptcy. I. General Principles. II. Effect op Adjudication ; Dissolu- tion OF Attachments; Special Judgments; Pending Suits. III. What passes to Assignee. IV. Powers and Duties of Assignee; Fraudulent Preferences. V. Composition. VI. Discharge and its Effect. I. General Principles. 1. The bankrupt act of 1867 only suspended the operation of the State insolvent law, so that, after the repeal of the bankrupt act, a conveyance made before its repeal by an insol- vent debtor by way of preference, in contra- vention of the provisions of the insolvent law, was held to be a sufficient cause for instituting proceedings in insolvency against the debtor. LotliropY. HigUand Foundry Co., 128 Mass. 120 (1880). 2. If the effect of an assignment for the benefit of creditors made under the law of an- other State, and proof of claim and receipt of a dividend thereunder, is to bar an action on the claim, the law is an insolvent law, the operation of which was suspended by the bankrupt act of 1867. Lyman v. Bond, 130 Mass. 291 (1881). 3. A fugitive from justice, whose domicil was in this Commonwealth at the time of his flight, and who has acquired no domicil else- where, may be proceeded against here in bankruptcy after his flight. Cohb v. Rice, 130 Mass. 231 (1881). II. Effect of Adjudication; Dissolu- tion OF Attachments; Special Judgments; Pending Suits. 1. The provisions of U. S. Eev. Sts. § 5106, for staying, upon the appUcation of a bank- rupt, and to await the determination of the question of his discharge, suits upon claims provable in bankruptcy, are applicable to a Suit pending 'before a referee to whom it has been referred by consent of parties and rule of court. Seavey v. Beckler, 128 M'ass. 471 (1880). _ 2. It is no ground for postponing judgment in an action on a promissory note, signed by a corporation as principal and an individual as surety, that the plaintiff has proved the note against the estate of the principal in bank- ruptcy, and that the amount of the dividend thereon has not been determined. New Bed- ford Savings Bank v. Union Mill Co., 128 Mass. 27 (1879). 3. Whether an action by a bankrupt upon a debt due to him before his baiikruptoy should be continued, to await the determination of the question of his discharge in the bank- ruptcy court, is wholly within the discretion of the court in which the case is pending; and the refusal of that court to continue the case affords no ground of exception. Reed v. Paul, .131 Mass. 129 (1881). 4. An attachment of property of a debtor, made within four months of the commence- ment of proceedings in bankruptcy, is as effectually dissolved when a conveyance of the bankrupt's estate is made by the bankrupt to trustees, under U. S. Rev. Sts. § 5103, as when it is made by the register to assignees in bankruptcy under § 5044 ; and, in an action by the attaching creditor to enforce his claim., in which judgment is rendered for the defend- ant on his discharge in bankruptcy, the trus- tees are entitled to judgment for their costs, they having intei-vened to protect the estate. Moors V. Albro, 129 Mass. 9 (1880). 5. The reference of a case, after its entry in court, by agreement of parties and by a rule of court in common form, does not discharge the sureties on a bond given to dissolve an attachment, nor is it a waiver of the plain- tiff's right to the special judgment authorized by St. 1875, c. 68, § 1, in cases where the defendant has been ^.djudged a bankrupt. Seavey v. Beckler, 132 Mass. 203 (1882). 6. St. 1875, c. 68, authorizing the entry of a special judgment for the purpose of charging the sureties on a bond given to dis- solve an attachment, if the defendant is " ad- judged a bankrupt," and the attachment is " not made within four months next preceding the commencement of proceedings in bank- ruptcy," does not warrant the entry of such a judgment when the attachment is made within the four months, and there is no assignment in bankruptcy, and the debtor is discharged by proceedings of composition under U. S. St. June 22, 1874, § 17, whether he is or is not adjudged a bankrupt. ' Denny v. Merrifield, 128 Mass 228 (1880); Comslocky. Peck, 128 Mass. 231, note (1880). 7. A writ, in which A. alone was the de- fendant, was served upon a bank as trustee, which answered that, at the time of service, it had standing on its books a certain sum to the credit of A. and Company. The writ was afterwards amended by joining B. as a de- fendant. The trustee still continued to hold the fund, and it was conceded that A. and B. composed the firm of A. and Company, and that the fund belonged to them, More than four months after the amendment, A. and B. filed a petition in bankruptcy and were ad- judged bankrupts, and C, their assignee, came in as a claimant of the fund in the hands of the trustee. Held, that the previous attachment became valid by the amendment, and the trustee was at once chargeable upon its original answer ; and that the assignment 103 BANKRUPT AND BANKRUPTCY, III., IV., V. 104 in bankruptcy did not discharge the attach- ment. Sullivan v. Langley, 128 Mass. 235 (1880). III. What passes to Assignee. 1. An absolute deed of land with a con- temporaneous, though unrecorded, agreement of defeasance, is, in equity at least, a mort- gage, as between the grantor and the grantee, leaving an equity of redemption in the former, which vests in his trustees in bankruptcy, under U. S. Rev. Sts. § 5103; and the fact that the deed is recorded, and the agreement of defeasance is not recorded, does not create any estoppel of which an attaching creditor of the bankrupt can avail himself. Moors v. Alhro, 129 Mass. 9 (1880). 2. A will gave to the testator's widow the use and improvement of his real and per- sonal estate during her life ; and directed that, at her decease, all his estate should be converted into money, the income to be paid to his daughter, and that at her decease the principal should be divided equally among her heirs at law. Held, that the daughter's chil- dren took during her life an interest in the fund which they could assign and which would pass to an assignee in bankruptcy. Putnam V. Story, 132 Mass. 205 (1882). 3. The delivery, more than four months before bankruptcy, of a certificate of national bank stock, together with a power of attorney to transfer the same, to secure a debt, — Held, to confer a power coupled with an interest, which gave to the transferee a right to demand of the bank a certificate of the stock, not- withstanding a similar demand by the as- signee in bankruptcy, and notwithstanding the fact that the transfer had not been re- corded on the books of the bank, as required by its by-law. Dickinsons. Central Bank, 129 Mass. 279 (1880). 4. B. gave an order on C. in favor of A., as collateral security for promissory notes of B., which order was accepted by C. There was a sufficient consideration as between A. and C. Some of the notes were transferred by A. under an agreement that the order should be held by A. as collateral security for the payment of all the notes. A. then became bankrupt. Held, that, on the failure of B. to pay the notes, the assignee in bankruptcy of A. could maintain an action on the order for the benefit of the bankrupt estate, and of the holders of the notes which had been trans- ferred. Rogers Y. Union Stone Co., 134 Mass. 31 (1883). 5. By the terms of a policy of life insur- ance, the insurer promised to pay a certain sum to the insured on a day named, or to his children within sixty days after due notice and proof of loss. Held, that the promise to pay to the children took effect only in case the assured should die before the day named ; that before that time the assured had a valu- able interest in the policy, which passed to his assignee in bankruptcy. Brigham v. Home Ins. Co., 131 Mass. 319 (1881). 6. Assignees in bankruptcy do not, like heirs and executors, take the whole legal title in the bankrupt's property. They take such estate only as the bankrupt had a beneficial as well as legal interest in, and which is to be applied to the payment of his debts. Chace V. Chapin, 130 Mass. 128 (1881). IV. Powers and Duties of Assignee ; Fraudulent Preferences. 1. An action upon a debt due to a bankrupt before his bankruptcy may be brought in the name of the bankrupt, with the consent and for the benefit of the assignee in bankruptcy, who is also the assignee in fact. Mayhew v. Pentecost, 129 Mass. 332 (1880). So, where the assignee in fact has brought a suit in the name and by authority of the assignor, who afterwards becomes a bankrupt, the suit, with the consent of the assignee in bankruptcy, may be prosecuted to final judgment in the name of the assignor. Reed v. Paul, 131 Mass. 129 (1881). 2. If a second mortgagee of property, who is also a co-assignee in bankniptcy of the es- tate of the mortgagor, makes a quitclaim deed of the property to a third person, this consti- tutes the latter an assignee of the second mortgage, and does not pass the interest of the grantor as co-assignee in bankruptcy; and the equity of redemption remains in the as- signees in bankruptcy. Southwick v. Atlantic Ins. Co., 133 Mass. 457 (1882). 3. An assignment in bankruptcy, proved to have been executed and delivered by the regis- ter to the assignee, is, under U. S. Rev. Sts. § 5049, conclusive evidence of his right to sue; and any defects or irregularities in the pre- vious proceedings cannot be set up in defence ef an action brought by him, but can only be availed of by application to the supervisory jurisdiction in equity of the Circuit court of the United States. Hersey y. Jones, 128 Mass. 473 (1880). 4. In an action by the assignee of a bank- rupt, if the original assignment has not been recorded, secondai-y evidence of its contents is admissible. Hersey v. Jones, 128 Mass. 473 (1880). V. Composition. 1. A composition in bankruptcy, under U. S. St. 1874, does not bind a creditor, whose debt is stated at less than its true amount in the statement of the debtor, if the creditor does not join in the resolution of composition, or accept any money under it, and objects to its being recorded. Hemes v. Rand, 129 Mass. 519 (1880). 2. Land was leased by a trustee, and the lessee covenanted with him to pay rent and taxes. The trustee directed the lessee to pay the rent to the cestui que trust. The lessee sub- sequently went into bankruptcy, and entered into a composition with his creditors, under 105 BANKRUPT AND BANKRUPTCY, VI. 106 U. S. St. 1S74. His schedule of debts stated the amount due for rent and the name and address of the cestui que trust, but not the amount due for taxes, nor the name and ad- dress of the trustee. Neither the trustee nor the cestui que trust took any part in the pro- ceedings for composition. Held, in an action by the trustee for the rent and taxes due at the time of the bankruptcy, that the compo- sition was not a bar. MacMahon v. Jacobs, 129 Mass. 524, note (1880). 3. In order to give effect to a composition under U. S. St. 1874, it is not necessary that the debtor should make a tender to every creditor of the amount due him under the composition ; but it is sufficient that such no- tice of his readiness to pay that amount be given to each creditor as may enable him to demand it at a reasonable place, and at the time when it is payable by the terms of the composition. Home Bank v. Carpenter, 129 Mass. 1 (1880). 4. A married woman, the holder of a prom- issory note, died in 1875. Her husband took out letters of administration on her estate in 1878. In 1876, an indorser of the note be- came bankrupt, and entered into a compo- sition with his creditors under U. S. St. 1874. The schedule of liabilities filed by him gave the date and amount of the note, the place where made, the name of the maker and the time when due, and gave the husband's name as that of the holder, and did not give the name of the payee. The husband had no notice or knowledge of the proceedings in bankruptcy. The bankrupt sent to the per- son who usually acted as the husband's at- torney a check for the amount due on the note under the composition, together with a form of a receipt in full for the claim on the note. The attorney reduced the check to money, did not sign the receipt sent, but signed the husband's name to a receipt on account of the note. The husband, when in- formed of this, refused to take the money, but did not direct its return. Held, in an action on the note, by the husband, as ad- ministrator of his wife's estate, against the indorser, that the plaintiff was not the holder of the note in 1876 ; that the defendant had not complied with the provisions of the bankrupt act; that the plaintiff had not, as matter of law, waived his rights against the defendant; and that the action could be maintained. Stone v. Simonds, 131 Mass. 457 (1881). 5. St. 1875, c. 68, authorizing the entry of a special judgmentfor the purpose of charging sureties on a bond given to dissolve an attach- ment, if the defendant is " adjudged a bank- rupt," and the attachment is "not made within four months next preceding the com- mencement of proceedings in bankruptcy," does not warrant the entry of such a judgment when the attachment is made within the four months, and there is no assignment in bank- ruptcy, and the debtor is discharged by pro- ceedings of composition under U. S. St. 1874, whether he is or is not adjudged a banknipt. Denny v. Merrifield, 128 Mass. 228 (1880) ; Comstock V. Peck, 128 Mass. 231, note (1880). 6. Proceedings of composition under U. S. St. 1874, followed by payment or tender of the sums due, bar the rendering of any judg- ment against the debtor personally in an ac- tion by a creditor, whose debt is described in the statement of the debtor, and would be barred by a certificate of discharge in bank- ruptcy. Denny v. Merrifield, 128 Mass. 228 (1880). 7. If a resolution of composition, under U. S. St. 1874, has been signed by the re- quisite majority of creditors, and the debtor's assent to its terms has been manifested by his signature to the petition by which the proceedings for a composition were initiated, and the court has adjudged that the resolution has been duly passed, and has ordered it to be recorded, its operation cannot be impeached collaterally, in an action at law, by a creditor who otherwise would be bound by it, on the ground that it was not confirmed by the signa- tux'e of the debtor. Home Bank v. Carpenter, 129 Mass. 1 (1880). 8. A composition in bankruptcy, under U. S. St. 1874, cannot be impeached collaterally in an action at law in a state court, by a sin- gle creditor who was a party to the proceed- ings, by showing that the composition was obtained by fraudulent acts of the bankrupt. Farwell v. Raddln, 129 Mass. 7 (1880). VI. Discharge and its Effect. 1. AU the persons interested in an estate, the administrator of which was a defaulter, released him and his sureties from all claims against them. In consideration of this, two of the sureties gave separate notes payable at a certain time to a person as trustee for those interested in the estate, each for one half of the amount of the defalcation; at the same time the administrator gave his obligation under seal to repay the sureties the sums they paid as such ; and the third surety agreed to pay to each of them one third of the sum paid as surety, which he afterwards did, and then brought an action against the administrator for the sum so paid. Held, that the plaintiff's claim under the arrangement thus made was not a debt created by the defendant's defal- cation while acting in a fiduciary character within the provision of U. S. Rev. Sts. § 5117, and was barred by the defendant's discharge in bankruptcy. Light v. Merriam, 132 Mass. 283 (1882). 2. An action against an officer for a conver- sion of the plaintiff's property, by attaching it on a writ against a third person, is barred by a discharge in bankruptcy obtained subse- quently to the attachment; it cannot be con- tended that there was any fiduciary relation between the plaintiff and the officer, nor that the debt was created by his " defalcation as a public officer; " and it is immaterial that the incidental effect of the discharge is to exon- erate the sureties on his official bond from 107 BASTARDY. 108 liability for his misfeasance. Hayes v. Nash, 129 Mass. 62 (1880). 3.. A. procured his buildings to be burned, and assigned his claim upon the insurance money to B., to whom, in ignorance of the facts, the company paid it. Held, that the company might maintain an action in the na- ture of assumpsit against A., for the recovery of the money, notwithstanding his discharge in bankruptcy. Merchants' Ins. Co. v. Abbott, 131 Mass. 397 (1881). 4. A bond to dissolve an attachment in an action was given, with the condition that it should become void if the principal obligor should pay the final judgment in the action, if any was recovered, within thirty days after the recovery. Judgment was recovered, which the principal obligor did not pay; and, three days before the expiration of the thirty days, he filed a petition in bankruptcy, was duly adjudicated a bankrupt, and received his dis- charge. A surety on the bond paid the judg- ment, two months after the adjudication, and brought an action against the bankrupt for the sum so paid. The thirty days after the recovery of the judgment elapsed before the first meeting of the creditors of the bankrupt could have been held. Held, that the dis- charge in bankruptcy was a bar to the action. Fairbanks v. Lambert, 137 Mass. 373 (1884). 5. The validity of a discharge under the United States bankrupt act of March 2, 1867, cannot be contested in an action by a creditor against the bankrupt in a State court, even if the bankrupt wilfully and fraudulently omitted the creditor's name from his schedule of creditors, and the creditor had no knowl- edge of the proceedings in bankruptcy, until it was too late to make application to the United States court, as provided in § 34 of the above statute. Fuller v. Pease, 144 Mass. 390 (1887). BASTARDY. 1. Gen. Sts. c. 72, providing for the main- tenance of bastard children, does not apply to the case of a child which is still-born, and which, if born alive, would be a bastard. Schramm v. Stephan, 133 Mass. 559 (1882). 2. In entering judgment against the sure- ties on a bond given in bastardy proceedings, to secure the maintenance of the child, the sureties are not entitled to credit for pay- ments made by the principal. Judgment is properly entered for the amount named as penalty, and execution is properly issued for the amomit, within such sum, actually due at the time. Barnes v. Chase, 128 Mass. 211 (1880). 3. If the respondent in a bastardy com- plaint, who has been arrested upon a war- rant duly issued, upon being brought before a police court, waives an examination, and the court thereupon orders him to give a bond for his appearance before the Superior Court, ■which he does, there is no irregularity in these proceedings, upon which to found a motion to dismiss the complaint in the Superior Court. Hannan v. Doherty, 136 Mass. 567 (1884). 4. An irregularity in the proceedings of an inferior court, upon a bastardy complaint, can- not be availed of in the Superior Court. Han- nan V. Doherty, 136 Mass. 567 (1884). 5. A person charged under the bastardy act with being the father of a bastard child was ordered to give bonds to appear and answer to the complaint at the next term of the Supe- rior Court, to be holden on a day named, and to abide the order of the court thereon. In default of giving the bond, he was committed to jail. After the first day of the term he gave a bond conditioned as required in the order, and was released from jail. The com- plaint was not entered at the term of the Superior Court at which he was ordered to appear; but, at the next term, that court al- lowed the complaint to be entered as of the previous term. He was afterwards defaulted, adjudged to be the father of the child, and to stand charged with its maintenance, with which decree he failed to comply. Held, that there was a breach of the bond. Held, also, that a surety on the bond was liable, it not ap- pearing that he had been injured by the delay. Dineen v. Williams, 138 Mass. 367 (1885). 6. A child adopted under the St. of 1871, o. 310, § 8, acquires, under the Gen. Sts. c. 69, § 1, cl. 3, the settlement of its father by adoption ; and, if such child becomes pregnant before a new settlement is acquired, an over- seer of the poor of the town in which the adoptive father has his settlement may main- tain a complaint under the bastardy, act. Pub. Sts. c. 85, § 2. Washburn v. White, 140 Mass. . 568 (1886). 7. At the trial of a complaint under the bastardy act, Pub. Sts. c. 85, if the complain- ant testifies that the respondent got her with child in a certain month, and the respondent introduces evidence tending to show that, in that month, a third person spent parD of an evening with the complainant under circum- stances which naturally excite suspicions that they had sexual intercourse with each other, evidence that, in the preceding month, the complainant and such person had an interview under suspicious circumstances, is admissible, within the discretion of the presiding judge. Odewald v. Woodsum, 142 Mass. 512 (1886). 8. Under the Pub. Sts. c. 85, § 16, a com- plaint for bastardy need not allege that the complainant accused the respondent of being, the father of the bastard during her travail, and continued constant in such accusation; and, at the trial of the complaint, the com-, plainant may testify to the fact of the ac- cusation in the time of her travail, and of her constancy in such accusation, although the complaint does not contain such allegations. Bowers v. Wood, 143 Mass. 182 (1887). 9. The fact that the certificate of the oath to a complaint under the bastardy act. Pub'. Sts. c. 85, which complaint recites that it was taken on oath " before the justice " of a cer- tain police court, was made by the clerk, and states that the complaint was sworn to "before said court," raises a presumption 109 BENEFICIARY ASSOCIATION. 110 that the oath was taken when the court was in session. Tacey v. Noyes, 143 Mass. 4i9 (1887). 10. If the clerk of a police court, in which a complaint under the bastardy act, Pub. Sts. c. 8.5, is made, instead of transmitting to the Superior Court certified copies of the com- plaint and warrant, as required by § 7, trans- mits the original complaint and warrant, and they are lost from the files of the Superior Court, secondary evidence of their contents is admissible at the trial in that court, and the case is properly tried upon the supplemental complaint. Easdale v. Reynolds, 143 Mass. 126 (1886). 11. At the trial of a complaint under the bastardy act. Pub. Sts. c. 85, evidence of an act of sexual intercourse between the com- plainant and a man other than the respond- ent, from three to six months before the alleged bastard was begotten, is inadmissible, in the absence of evidence of any intimacy continuing between such man and the com- plainant down to the time of the begetting. Easdale v. Reynolds, 143 Mass. 126 (1888). ^ 12. If a woman, after her bastard child, is born but before the umbilical cord is severed, accuses a man of being the father of the child, this is an accusation "in the time of her travail" that he is the father of the child "of which she is about to be delivered," within the Pub. Sts. c. 85, § 16. Tacey v. Noyes, 143 Mass. 449 (1887). BAWDY-HOUSE. See House of Ill-fame; Disorderly House. BAY WINDOW. See Equity. BENEFICIARY ASSOCIATION. 1. A subordinate lodge of an incorporated benevolent association issued to K., upon his becoming a member, a certificate promising that the supreme lodge would pay a certain sum, upon due notice of his death and the surrender of the certificate, to such person as he should direct the same to be paid, " pro- vided he is in good standing when he dies." K. was suspended by the subordinate lodge, and had notice of such suspension, but did not appeal from the decision suspending him to the supreme lodge, as, under the constitu- tion, he had the right to do ; and such decision remained in force until his death. Held, that the administrator of K.'s estate, who was also the person to whom K. had directed the sum named in the certificate to be paid, could not maintain an action therefor against the su- preme lodge; and that evidence that he ought not to have been suspended was inadmissible. Karcher v. Knights of Honor, 137 Mass. 368 (1884). 2. An assignment, by a member of a bene- ficiary association organized under the St. of 1877, c. 204, of all his right, title, and inter- est in the certificate of memljership issued to him by the association, to a creditor, as col- lateral security for the payment of his debt, is invalid. Briggs v. Earl, 139 Mass. 473 (1885). 3. The widow of a member of a beneficiary association organized under the St. of 1877, c. 204, who was the beneficiary named in the certificate of membership issued to hira, as- signed in writing a part of the sum payable to her by the terms of the certificate to a creditor of hers. The assignment was drawn by the treasurer of the society, and a copy of it was kept by the society. Held, that the as- signment was valid, and could not be revoked by the widow. Held, also, that the acts of the treasurer amounted to a ratification of the as- signment. Briggs v. Earl, 139 Mass. 473 (1885). 4. A benefioiai-y association formed under the St. of 1877, c. 204, (Pub. Sts. c. 115, § 8,) issued a certificate to a member, by the terms of which a certain sum was payable to his wife, on his death, subject to such further disposal among his dependents as he might thereafter direct in compliance with the by- laws of the association. By the provisions of the by-laws, a member in good standing might surrender his certificate, and have a new one issued, payable to such beneficiary dependent on him as he might direct, and in the event of the death of the beneficiary named, and no other disposition being made, the benefit was to go to the dependent heirs of the deceased member. The wife died before her husband. He left a will bequeathing the benefit fund to a person to whom he was engaged to be mar- ried, but to whose support he had contributed nothing, and who was not dependent upon him. He died without marrying this person, and left his mother, who was dependent upon him, as his next of kin. Held, that he could not dispose of the fund by will, and that the mother was entitled to it. A merican Legion of Honor v. Pen-y, 140 Mass. 580 (1886). 5. A member of a beneficiary association formed under the St. of 1877, c. 204, (Pub. Sts. c. 115, § 8,) cannot direct by will that a person not within the class contemplated by the statute shall receive the benefit of a cer- tificate issued to him, even if the terms of the certificate permit such disposition to be made. American Legion of Honor v. Perry, 140 Mass. 580 (1886). 6. A person to whom a member of a bene- ficiary association, formed under the St. of 1877, c, 204, (Pub. Sts. c. 115, § 8,) is engaged to be married, cannot be said, as matter of law, to be dependent upon such member; nor can a sister of such member. Ameri- can Legion of Honor v. Perry, 140 Mass. 580 (1886). Ill BENEFICIARY ASSOCIATION. 112 7. A member of a beneficiary association formed under the St. of 1877, c. 204, (Pub. Sts. c. 115, § 8,) after the death of his wife, lived with M., her sister, until his own death. It was found as a fact that she had no property except real estate, valued at about $1400, and furniture, worth about $300; and that she de- pended on him to support her, if he was able and she was in need. A decree was entered that another person was entitled to the benefit of a certificate issued by the association to the member. Held, on appeal, that it could not be held, as matter of law, that M. was de- pendent upon the member. American Legion of Honor v. Perry, 140 Mass. 580 (1886). 8. The by-laws of an incorporated benevo- lent society provided that a member who be- came incapable of working, in consequence of sickness or accident, should receive from the society a certain sum per week ; and that he could not receive such benefit without making application in writing to the society, nor be- fore two members appointed by the president had visited him and made a report to the so- ciety. A member of the society became ill, and was unable to work. He gave due notice in writing of his illness to the society, and a committee of the society visited him and re- ported his condition to the society; and, on a day named, he was entitled to receive from the society a certain sum for two weeks' ill- ness, which was afterwards tendered to him. On that day, he resumed work at his regular employment, and worked for two consecutive days, receiving his wages therefor ; but during the two days he was not physically in a fit condition to work, and could only perform light work, and not even that without un- reasonable, excessive, and harmful exertion. During the time he was so employed, a com- mittee of the society visited his house, and afterwards reported to the society that he had returned to work, and the committee was dis- charged by the society. At the expiration of the two days, he suffered a relapse, and was un- able to work for a period sufficient to make four weeks from the date of his first illness by including said two days in the computation ; but no notice of his illness was given to the society after the day when he so resumed work, and the society took no action thereon. He then brought an action against the society, to recover the amount of the benefit for four weeks. The judge, who tried the case with- out a jury, found for the plaintiff. Held, that it could not be said, as matter of law, that the plaintiff might not be deemed "incapable of working" during the time in question, within the meaning of the by-law. Genest v. L' Union St. Joseph, 141 Mass. 417 (1886). 9. The Pub. Sts. c. 115, § 8, provide that a beneficiary association may, "for the purpose of assisting the widows, orphans, or other per- sons dependent upon deceased members, pro- vide in its by-laws for the payment by each member of a fixed sum, to be held by such association until the death of a member oc- curs, and then to be forthwith paid to the person or persons entitled thereto, and such fund shall not be liable to attachment by trustee or other process." An association was organized under the statute " for the pur- pose of defraying the expenses of the sickness and burial of its members, and rendering pe- cuniary aid to the families of deceased mem- bers or to their heirs." One of its by-laws provided that the benefit payable at the death of a member should be applied to the payment of the expenses of his last sickness and funeral, if not otherwise paid, and "the balance shall be paid to the person or persons designated by the member in his application for membership, or last legal assignment, provided such person or persons are heirs or members of the dece- dent's family." A member of this association, in his application for membership, designated his wife as the person to whom the benefit was to be paid upon his death. Aftei'wards he attempted to change the designation from his wife to his mother, who was not living with him, but who was living with her hus- band in another town and county. Held, that the attempted designation to the mother was invalid; that the original designation to the wife remained in force; and that she was entitled to the fund. Eliey v. Odd Fellows' Association, 142 Mass. 224 (1886). 10. A member of a beneficiary association, formed under the St. of 1874, c. 375, cannot designate his " estate " as the object of the money payable at his death. Daniels v. Pratt, 143 Mass. 216 (1887). 11. If a by-law of a beneficiary association, formed under the St. of 1874, c. 375, provides that no change of designation, by a member, of the person entitled to receive the aid de- rived from his membership, shall be valid without the consent and approval of the direc- tors, the last will of the member, not approved by the directors in the lifetime of the mem- ber, has no force as a change of designation. Daniels v. Pratt, 143 Mass. 216 (1887). 12. If the executor of the will of a member of a beneficiary association, formed under the St. of 1874, c. 375, receives from the associa- tion the amount due on a benefit certificate, he takes it in trust to pay over to the person entitled thereto. Daniels v. Pratt, 143 Mass. 216 (1887). 13. Although the amount derived from the benefit certificate of a member of a benefi- ciary association, formed under the St. of 1874, c. 375, forms no part of his estate, yet, if his estate is very small, and a person whose right to such benefit is controverted knowingly re- ceives from the executor, by the consent of the next of kin, a portion of the money derived from the benefit certificate, which portion is much larger than the estate, and, without be- ing induced by fraud, releases his claim to the " estate," he thereby gives up all claim to the amount received from the benefit certificate. Daniels v. Pratt,' 143 Mass. 216 (1887). 14. If the executor of the will of a member of a beneficiary association, formed under the St. of 1874, c. 375, has received from the as- sociation the amount due on the death of the member, and the persons who by the by-laws may be designated as beneficiaries are dead, or have relinquished their rights, and the will 113 BENEFICIARY ASSOCIATION. 114 cannot operate as a designation of tlie bene- ficiaries, the executor takes the money in trust to distribute it in accordance with the rules established by the statute of distributions, and not as assets of the estate. Daniels v. Pratt, 143 Mass. 216 (1887). 15. Under the St. of 1880, c. 196, § 3, pro- viding that any beneficiary association may hold, as a death fund belonging to the bene- ficiaries of anticipated deceased members, an amount not exceeding one assessment, and that nothing in the section shall be held to restrict such death fund to less than $10,000, a beneficiary association holding such a fund, when a loss occurs, is not obliged to pay the loss out of the fund, but may make. an assess- ment therefor ; and the fact that it designates such fund as a reserve fund is immaterial. Grossman v. Massachusetts Benefit Association, 143 Mass. 435 (1887). 16. A certificate of membership issued by a beneficiary association to C. provided that a failure to comply with the rules of the associ- ation as to payment should render the certifi- cate void. A rule of the association also pro- vided that, if an assessment was not received within thirty days from the mailing of the no- tice, it should be taken " as suflicient evidence that the party has decided to terminate his con- nection with the association, which connection shall thereupon terminate, and the party's contract with the association shall lapse and be void; but said party may again renew his connection with the association by a new con- tract made in the same manner as at first ; or for valid reasons to the ofiicers of the associa- tion (such as a failure to receive notice of an assessment) he may be reinstated by paying assessment arrearages." C. was habitually unpunctual in paying his assessments, and, in many instances, the association received the assessments after they were due, and the offi- cers required him to sign certificates that he was in good health before they would reinstate him. The association levied an assessment, which C. failed to pay within thirty days, and he died without paying the same. , Held, in an action by the administrator of his estate to recover the amount of his certificate of mem- bership, that there was no evidence of a waiver by the association of the provision of the certificate as to payment of assessments. Grossman v. Massachusetts Benefit Association, 143 Mass. 435 (1887). 17. The by-laws of a beneficiary associa- tion, formed under the laws of another State, provided that the sum payable on the death of a member should be paid " to such person or persons as the deceased may have designated to receive the same; " and, if no such desig- nation had been made, then, in the order named, to the widow, children, mother, or " the legal representatives of such deceased member." A member of this association designated said sum to be paid to his " es- tate." He left no widow, child, or mother, but left certain next of kin, and also made a will, by which he gave certain legacies, and which was admitted to probate in this Com- monwealth. The association paid the money to the executor of the will. Eeld, in the ab- sence of evidence that the designation was in- valid by the law of the other State, that this money was to be administered in accordance with the will, so far as not required for other lawful purposes. Daniels v. Pratt, 143 Mass. 216 (1887). 18. An association was incorporated by the St. of 1876, c. 16, "for the purpose of assist- ing the families of deceased members of said association, and the members thereof, when sick or disabled ; " and it was required that all the members should be members of the police department of a certain city. Article 1 of the by-laws provided that the corporation should be composed of members of the police department of said city ; and that, " when a member leaves the police department by resig- nation, discharge, or from any cause whatever, he shall cease to be a member of the corpora- tion." The act of incoi-poration was amended by the St. of 1882, c. 78, so that the benefit to accrue by reason of the decease of members " may be extended to such members as may be retired " from the police force under the St. of 1878, c. 244, § 5. The last-named statute authorized the police commissioners of said city to retire a member of the police department, and place him upon a pension, if he had become disabled while in the actual performance of duty. In Februai-y, 1884, new by-laws were adopted, article 1 being the same as article 1 of the former by-laws, with the proviso added that members who had been retired after the day when the St. of 1882, c. 78, took effect, or should thereafter be retired, and frho had been members of the corporation for five years previously to their being retired, or were retired through injuries received in the discharge of their duties, might retain their membership, as provided in the St. of 1882, c. 78. The bylaws also provided that every member, upon joining the corporation, should designate in writing, attested by two witnesses and the treasurer of the corporation, some member of his family to whom the amount to be paid upon his decease should be paid; and that any member might, at any meeting of the directors, make such change in the disposition of said sum, by transferring the payment to some other member of his fam- ily, as he should elect. A. became a member of the corporation after the St. of 18S2, c. 78, took effect, and before the change in the by- laws. In August, 1884, he was retired from the police force, under the St. of 1878, c. 244, § 5, and placed on the pension roll, for disa- bility, but not through injuries received in the discharge of his duties. Two semiannual as- sessments were paid by A. after his retirement, and received by the treasurer. A. 's name was reported in 1884, in the annual report by the officers to the corporation, as a retired officer, and his name was on the annual list of mem- bers. In May, 1885, A. changed the designa- tion of his beneficiary to B., his daughter, by an instrument under seal, and attested by two witnesses and by the treasurer of the corpora- tion. Held, in an action by B. against the corporation, that A. ceased to be a member of 115 BETTERMENTS. 116 the corporation upon his retirement from the police force ; that the corporation was not es- topped, by the acts of its officers, to deny that A. -was a member; and that the action could not be maintained. Burbank v. Boston Police Relief Association, 144 Mass. 434 (1887). 19. The charter of a beneficiary associa- tion, formed under the St. of 1877, c. 204j and also the statute, limited the persons whom a member could designate as his beneficiaries to his widow, orphans, and other persons dependent upon him. The by-laws of the association provided that, if he made no des- ignation, the amount payable on his death should be paid to his widow, or, if he left no widow, to a guardian or trustee of Ids minor children. A member of the association, -who had a wife and two minor daughters, to the question in his application for membership, " To whom will you have your death loss paid? " answered, " To my heirs," and to the question, " State relationship to you, if any, of the person or persons to whom pay- able," answered, " Wife or daughters." His wife and one daughter survived him. Held, that, whether there was a valid designation or not, the widow was entitled to the whole fund payable on his death. Addison v. New Eng- land Commercial Travellers' Association, 144 Mass. 591 (1887). 20. Under the Pub. Sts. c. 115, § 8, the sum payable upon the death of a member of a beneficiary association is not attachable by a creditor of the beneficiary by trustee pro- cess, while it remains in the hands of the as- sociation; and the creditor cannot maintain such process by proving that the person to whom the certificate was issued was not in fact a member of the corporation issuing it, or that its funds were not obtained in compliance with the law regulating such associations. Saunders v. Robinson, 144 Mass. 306 (1887). 21. A relief association issued a certificate to a member, in which it agreed to pay, on the death of the member, a certain sum to a third person, "in trust" for a daughter of the member. The third person collected the sum of the association. Held, that the guar- dian of the daughter could maintain an action, in the name of his ward, against such third person, for money had and received. Derome V. Vose, 140 Mass. 575 (1886). BEQUEST. See Devise. BETTERMENTS. See Partition; Real Action. Assessments for park and sewer improve- ments, see Park ; Sewer; Wat. 1. A city took land for laying out a way, and adjudicated no damages. The land- owners made no application for a jui-y within a year; but, before the year elapsed, they pre- sented a petition for damages to the mayor and aldermen, which was referred to the com- mittee on highways. This committee and the landowners agreed upon a rate of compensa- tion, which the committee recommended the city to pay ; and this sum was included in the committee's report of the cost of the way, and betterments were assessed upon that basis. The mayor and aldermen voted, on the same day that the betterments were assessed,, to pay the landowners the sum recommended, upon receiving a deed of the land taken. This vote was concurred in the next day by the common council ; and subsequently the laud was con- veyed in fee, and the price paid. Held, on a petition for a jury to revise the betterment assessment, that the sum so paid to the land- owners coiild not be included in the assessment. Fuller V. Sbmerville, 136 Mass. 556 (1884). 2. The city council of Worcester, having accepted the St. of 1869, c. 390, passed an or- dinance, providing that, when any sidewalk should be established, the commissioner of liighways should grade the saine, set the curb- stones, pave the gutters, and construct the sidewalk, and the city council should assess upon the owners of the several estates abutting thereon " their just and proportionate part of the expense of paving said walk;" and that the expense of constructing any sidewalk should be assessed upon the abutters, but no part of the expense of grading the street, set- ting the curbstones, or paving the gutters should be so assessed, but should be paid for by the citj'. Held, that the expense of grad- ing a sidewalk so as to conform to the already established grade of the street could not be included in the assessment. Held, also, that the words " gutters and curbstones " in the ordinance referred to the gutters and curb- stones lying between the sidewalk and the part of the street devoted to carriage travel. Dickinson v. Worcester, 138 Mass. 555 (1885). 8. In an action against a city to recover the amount of a betterment tax assessed for improvements on a street in the city, and, paid under protest, the orders passed by the city council for the improvements cannot be im- peached for alleged defects in the notices pre- ceding them ; but such defects can be availed of by certiorari only. Foley v. Haverhill, 144 Mass. 352 (1887). 4. It is no objection to the validity of a betterment tax assessed for improvements on a street in a city, that the adjudication of the board of aldermen is only that the estates mentioned "have been benefited," and does not declare that they receive any benefit be- yond the general advantage to all real estate in the city; nor is it any objection that the record does not show the actual expense of the improvements, if the actual expense was more than double the amount of the assess- ment, and the record discloses a liability for land damages, fixed by lapse of time, of a sum which is double the amount of the assessment. Foley V. Haverhill, 144 Mass. 352 (1887). ,5. In an action against a city to recover the amount of a betterment tax assessed for 117 BILL OP PARTICULARS. 118 improvements on a street in the city, and paid uiider protest, if the adjudication of the board of aldermen is that the estates named have been benefited " by the widening," and the sums assessed are declared not to exceed one half the amount of the adjudged benefit to the estates "by the said widening," as they did not in fact, the plaintiff is not entitled to a ruling that any assessment upon his land of a share of the expense of grading was void, the expenses apart from grading being double the amount of the assessment, and there be- ing nothing to show that the assessment took grading into account. Foley v. Haverhill, 144 Mass. 352 (1887). 6. It is no objection to the validity of orders for improvements on a street in a city, that they were passed first by the board of alder- men and then by the common council in con- currence, and not in joint convention, the city charter providing that the board of aldermen and the common council " in their joint capa- city, shall be denominated the city council," and requiring all petitions to be first acted on by the mayor and aldermen, and giving an appeal to " any person aggrieved by any pro- ceedings of the mayor and aldermen or of the city council imder this provision." Foley v. Haverhill, 144 Mass. 352 (1887). - BICYCLE. See Velocipede. BILLIARDS. See Pool. At the trial in the Superior Court, on appeal, of a complaint alleging that the defendant, not being duly licensed, unlawfully kept and suffered to be kept, in a certain building owned by him, a billiard table, for hire, gain, and reward, the evidence tended to show that the defendant owned the building and a billiard table therein, kept for hire, gain, or reward, and tha-t the room in which the table was kept and the table itself were let by the defendant to a tenant at a monthly rental. Held, that the defendant could be tried for suffering the table to be kept for the purpose alleged; that an objection, taken for the first time in the Superior Court, that the complaint did not allege that the keeper of the table was not duly licensed, was taken too late ; and that the bur- den was on the defendant to prove that the keeper of the table was duly licensed. Com- monweallh y. McCarty, 141 Mass. 420 (1886). BILL OF EXCEPTIONS. See ExcEPTiojfs. BILL OF LADING. See also Carrier; Railroad; Ship. 1. A delivery of an inland bill of lading for a valuable consideration is in law the de- livery of the property itself; and it is not necessary for the person to whom it is de- livered to take possession of the property upon its arrival, or to give notice to the carrier or warehouseman who has the actual possession of the property. Forbes v. Boston Sf Lowell Railroad, 133 Mass. 154 (1882). 2. The transfer and delivei'y of an inland bill of lading of goods, by the consignee to a person who advances money upon them, is not in form or effect a mortgage, but vests in such person a property in the goods, which entitles him to maintain an action against one who wrongfully converts them ; as, for in- stance, the carrier, if he delivers the goods to the consignee, without requiring the produc- tion of the bill of lading, but relying upon his assertion that he holds it. Forbes v. Boston §• Lowell Railroad, 133 Mass. 154 (1882). 3. By the usual course of business in for- warding grain from C. to B., it is sent by water from C. to an intermediate point, and is thence taken by railroad to B. A bill of lading is given at C, making the grain de- liverable to the shipper at the intermediate point, and there a railroad receipt is given, with a memorandum upon it showing that the grain was received from a vessel, and that a bill of lading is outstanding. The bill of lad- ing is regarded as transferring the property, and is alone used in procuring the goods from the carrier at B. Held, that the bill of lading is the repr^sentative of the gi-ain during the whole of the transit from C. to B. Forbes v. Fitchburg Railroad, 133 Mass. 154, 159 (1882). 4. The holder of a large number of inland bills of lading of corn issued by a railroad corporation, which he had received as col- lateral security for a loan of money to the con- signee, delivered them to the railroad corpor- ation and took from it receipts, which set forth the indorsement of the bills of lading to the pledgee, that notice was to be given to him of the arrival of the corn, and the rate of freight. By the contract of pledge, the consignee agi-eed to pay the freight. As the corn arrived, the freight was charged to the consignee, and not to the pledgee; and, when delivering the corn, the corporation did not insist upon its lien for freight. The pledgee at one time gave the consignee an order on the railroad corporation for a portion of the com, which stated that the consignee was to pay all charges of shipment. The consignee at an- other tame obtained all the corn then in the possession of the railroad corporation by means of false representations, and, to facilitate the obtaining of the corn, paid the freight on the same. Held, in an action by the pledgee against the railroad corporation, that the de- fendant was entitled to deduct the freight from the value of the corn wrongfully delivered by it. Massachusetts Loan Co. v. Fitchburg Railroad, 143 Mass. 318 (1887). BILL OF PARTICULARS. See Pleading. 119 BILLS AND NOTES, I., II., IIL 120 BILLS OF EXCHANGE AND PROMIS- SORY NOTES. I. Form; Requisites; Construction. II. Negotiability and Transfer. III. Acceptance, and Liability of Ac- ceptor. IV. Presentment ; Demand and No- tice. V. Liability as Promisor, Indohser, Surety, or Guarantor. VI. Of the Original Consideration; WHEN OPEN to INQUIRY. VII. When subject to Equities, or De- fences between other Parties. VIII. Various Defences to Bills and Notes. IX. Actions on Bills and Notes; Plead- ings; Parties; Evidence. See also Bank; Check; Collateral Se- curity ; Contract ; Guaranty ; Insol- vency; Laches; Law and Fact; Order; Payment : Surety ; Usury. I. Form; Requisites; Construction. 1. A promissory note payable " on demand after date " is not a note " payable on time," within the meaning of St. 1874, c. 404, which provides that all persons becoming parties to promissory notes payable on time by a signa- ture in blank on the back thereof, shall be en- titled to notice of non-payment the ' same as indorsers. HitcTiings v. Edmunds, 132 Mass. 338 (1882). 2. An instrument, signed by the maker and witnessed, stating that the maker had received of S. a horse, for which he promised to pay S. or order a sum named in one month from date, " said horse to be and remain the entire and absolute property of the said S. until paid for in full by me," is not a promissory note, and an action upon it cannot be maintained which is brought more than six years after its date, the statute permitting suits on wit- nessed promissory notes to be brought at any time within twenty years. Sloan v. McCarly, 134 Mass. 245 (1883). 3. A certificate of deposit issued by a na- tional bank is not a promissory note, within the meaning of the Gen. Sts. c. 53, § 10; and, in an action thereon by a person to whom it has been transferred by the depositor, the bank is not entitled to set off the amount due upon a promissory note given by the depositor to, and discounted by, the bank, the certificate being issued for the proceeds of such note. Shute V. Pacific National Bank, 136 Mass. 487 (1884). 4. A draft for a certain sum, drawn by one person upon another, payable at sight to the order of a bank named, and containing the direction to charge the same to a certain ac- count, is a negotiable bill of exchange, not payable out of a particular fund, and does not constitute an assignment of the fund. Whit- ney V. Eliot National Bank, 137 Mass. 351 (1884). 5. Payments and the indorsements of pay- ments, upon a promissory note in which no rate of interest is expressed, of interest at the rate of seven per cent per annum, in respect of time after the note has become overdue, do not amount to a change of the contract, or satisfy the statutory requirement of an agree- ment in writing to bind the maker to pay that rate in the future. Haydenville Savings Bank V. Parsons, 138 Mass. 53 (1884). 6. A promissory note, in the form " I prom- ise to pay," and signed by " E., Pres. and Treas., C. Company," is the note of E., and not of the C. Company. Davis v. England, 141 Mass. 587 (1886). 7. If a pi'omissory note is attested, before delivery, by a person not a party to it, with- out the procurement or knowledge of either party, and the note is accepted by the payee without any knowledge that it has been at- tested, and without relying upon the attesta- tion as a part of the contract, the attestation is not such a material alteration as will make the note void, but may be stricken out; and an action may be maintained upon the note. Church V. Fowle, 142 Mass. 12 (1886). II. Negotiability and Transfer. 1. A promissory note, payable "on demand or in three years from this date," with inter- est at a certain rate " during said term or for such further time as said principal sum or any part thereof shall remain unpaid," is not pay- able at a time certain, and therefore is not a negotiable note. Mahoney v. Fitzpatrick, 133 Mass. 151 (1882). 2. A promissory note for a certain amount, payable to a person named or bearer, "with interest the same as savings banks pay," is not negotiable. Whitwell v. Winslow, 134 Mass. 343 (18_83)._ 3. In an action in this Commonwealth on a promissory note, madei and payable in another State, the question whether the note is nego- tiable is, in the absence of evidence of the law of such State, to be determined by the com- mon law, and the St. of 3 & 4 Anne, c. 9, as declared by the decisions of this Common- wealth. Richards v. Barlow, 140 Mass. 218 (1885). 4. A promissory note, payable " ninety days after date," and containing on its faca a power of attorney authorizing a confession of judg- ment "at any time hereafter," is not nego- tiable. Richards v. Barlow, 140 Mass. 218 (1885). III. Acceptance, and Liability op Acceptor. In an action against the acceptor of a draft, there was evidence that the drawer of the draft was liable on a note held by a bank and soon to fall due ; that it was agreed between 121 BILLS AND NOTES, IV, 122 the defendant, the drawer, and the bank, that the defendant should accept a diaft in favor of the bank, which draft should be discounted by the bank and used to pay the note, and that the note should be delivered to the ac- ceptor. Held, that it was a necessary part of this agreement that the bank on discounting the draft should become the owner of it. Mechanics'' Bank v. Robins, 134 Mass. 331 (1883). IV. Presentment; Demand and Notice. 1. If a promissory note specifies no place of payment, a presentment of it for payment at the former place of business of the maker, without any inquiry as to his place of resi- dence, is not a good presentment to charge an indorser. Talbot v. Commonwealth Bank, 129 Mass. 67 (1880). 2. Where the indorser of a promissory note resides in a town in which there are two post- oiEces, of which fact the holder of the note is ignorant, a notice of the dishonor of the note, addressed to the indorser at the town gener- ally, is sufficient, unless he proves that he is accustomed to receive his letters at one of the offices only, and that the holder of the note might have ascertained that fact by reason- able inquiry. Burlingame v. Foster, 128 Mass. 125 (1880). 3. A promissory note was dated at "Bos- ton," and following the name of the maker were the words " Brighton District." In an action against an indorser on the note, the evidence tended to show that when the note was given, and until some weeks before it be- came due, the maker had a place of business in the Brighton District ; that, on the day it became due, a notary public went with the note to that place and found it closed and un- occupied; that he made inquiries at a hotel opposite to it, but could find no other place of business of the maker. There was no evi- dence that he made any further inquiries, or any attempt to find either the maker or his place of business or residence. Held, that the words "Brighton District " did not desig- nate the place at which the note was payable, and that there was not sufficient evidence of a demand upon the maker to charge the in- dorser. Demand v. Burnham, 133 Mass. 339 (1882). 4. If the holder of a note sends it to an agent for collection, it is sufficient to hold a prior indorser, if the agent gives notice of the dishonor in due time to his principal, and if he without delay transmits notice to the prior indorser. Lynn Bank v. Smith, 132 Mass. 227 (1882). 5. The fact that the holder of a note in- dorses it to his agent for collection "for ac- count of" himself as holder, does not qualify the indorsement, so as to make the holder any the less the last indorser, within the rule regulating the notice necessary to indorsers. His agent's duty to give him seasonable notice of the dishonor of the note, so that he may retain his rights against prior indorsers, is not varied by the fact that the indorsement on its face shows that it was made for col- lection. Lynn Bank v. Smith, 132 Mass. 227 (1882). 6. The indorser of a promissory note, on the day the note matured, telegraphed to the payee and holder of the note that the maker of the note was absent from the State and was ex- pected on a certain day, and that " I ask recall of note due, and hold over till I see him." The indorser afterwards had an interview with the payee, in which he promised to pay the note in a certain manner, but failed to do so. Held, in an action on the note, that the jury would be justified in finding a waiver by the indorser of demand and notice. Corner v. Pratt, 138 Mass. 446 (1885). 7. In the absence of evidence that a protest of a promissory note is necessary to hold an indorser, a waiver of protest by him may be found to mean a waiver of notice of demand on the maker and of his refusal to pay. John- son V. Parsons, 140 Mass. 173 (1885). 8. The indorser of a promissory note became insolvent and absconded from the Common- wealth before the maturity of the note, and his address was known only to his counsel, a confidential friend, and his immediate family. Before he absconded he left his address with his counsel, who had charge of his affairs, and it was understood between them that his counsel should send him anything relating to his affairs that he deemed important, and that everything sent to his former place of business should be turned over to his counsel. When the note became due, the indorser had no place of business in this Common- wealth ; but his sign remained over the door of the store he occupied before he absconded, and his assignee under a voluntary assignment for the benefit of his creditors was there. The indorser had a domicil in a town of the Com- monwealth other than that in which he did business, and this domicil he retained after absconding. The holder of the note knew of the insolvency and of the assignment, but did not know that the indorser had ceased to do business at his former place of business, or that he had a residence here, and, when the note matured, sent notice of its non-payment to the indorser's former place of business. The indorser did not receive the notice, in consequence of his counsel's telling the as- signee not to send to him notices of protests. Held, that due diligence was used in giving the notice. Bank of America v. Shaw, 142 Mass. 290 (1886). 9. Under the St. of 1871, c. 239, (Pub. Sts. c. 77, § 16,) a notice to an indorser of a prom- issory note of its non-payment, duly depos- ited, jjostage prepaid, in the post-ofBce in the town in which he lives, the direction on the envelope in which it is enclosed containing only his name and that of the town, is sufii- cient, although he lives on a street which has a name, if the houses on the street are not numbered, and there is no postal delivery by carriers; and the facts that he did notreceive- the notice, and that another person of the same name lived in the town who did not re- 123 BILLS AND NOTES, V., VL 124 ceive it, are immaterial. Morse v. Chamher- lin, 144 Mass. 406 (1887). 10. The indorser of a promissory note, who had a place of business in the city where the note was dated, failed in business, and made an assignment for the benefit of his creditors, under which the assignee had authority to carry on the business for completing the man- ufacture of stock and materials on hand, and otherwise so far as should be necessai-y for the purposes of the trust. The assignee continued the business, until long after the note became due, at the place of business of the indorser, where the sign with his name remained, and retained the indorser's box in the post-oiBce, which continued to be used exclusively for the business, and in which letters addressed to the indorser were placed, and taken out by the as- signee. The indorser left the Commonwealth after the assignment, and did not return until after the note became due, but retained his domicil in a town in the Commonwealth, where his family resided. He gave no in- structions in regard to forwarding his mail from the city where his former place of busi- ness was, although he had counsel there who was to communicate to him any matter of im- portance affecting his interest. The holder of the note duly sent notice of its non-pay- ment by mail to the indorser, addressed to him in said city, and it was received at his former place of business; but the indorser did not I'eceive it, in consequence of his counsel's telling the assignee that he had no duty in regai'd to such notices. The holder of the note, when he took it, knew where the indorser's place of business was, and he had no notice or knowledge of the discontinuance of the business, or of the removal of the in- dorser from the place of business, except what might be inferred from knowledge of the fail- ure and of the assignment ; and he believed, at the time the notice of non-payment was given, that the indorser did business and resided in said city. Held, that on these facts it might properly be found that due diligence was used in giving the notice. Importers Sf Traders' Bank v. Shaw, 144 Mass. 421 (1887). V. Liability as Promisor, Indorsee, Surety, or Guarantor. For contribution between co-sureties, see Surety. 1. A person, who, before St. 1874, c. 404, put his name on the back of a promissory note, before delivery to the payee, is liable as joint promisor ; and it is immaterial that he indorsed the note without consideration, at the request of the maker, for the accommoda- tion of the payee, if the payee did not author- ize such a request, or know of its being made. Spaulding v. Putnam, 128 Mass. 363 (1880). 2. A per.son, by signing a promissory note after it has been delivered, although for a distinct consideration sufficient to support his contract, does not become a joint and several promisor with the maker, if the original obli- gation of the latter on the note is not de- stroved. Howe v. Taggart, 133 Mass. 284 (1882). 3. A negotiable promissory note was in- dorsed by the payee for the accommodation of the maker. On the back of the note was the following, signed by the defendants: "We hereby guarantee the payment of the within note." Held, that their contract was not with the payee, but with the first holder for value; who took the note with the guaranty upon it; and that parol evidence was admissible to show the consideration of the contract, and the time when it first took effect by delivery, but not to vary or control its terms. Baldwin V. Dow, 180 Mass. 416 (1881). 4. A memorandum made by the holder on the back of a promissory note, to the effect, that the rate of interest after a certain day will be less than that stated in the body of the note, is not an alteration of the note; and does not discharge a surety of the maker, although written in pursuance of an agree- ment between the holder and the maker of the note without the knowledge of the surety. Cambridge Savings Bank v. Hyde, 131 Mass. 77 (1881). 5. If a promissory note, payable on demand to a third person, and indorsed by the payee, is given by the maker to his wife, in considera- tion of her joining with him, in release of her right of dower, in a mortgage of his land, an action on the note may be maintained against the indorser, although the mortgage is outstanding and unpaid, and there has been no breach of its conditions. Nichols v. Nichols, 136 Mass. 256 (1884). VI. Of the Original Consideration; WHEN OPEN to INQUIRY. 1. The payee of a promisory note, given as collateral security for his liability as in- dorser of another note made by the same per- son, may maintain an action thereon against the maker, although payment of the other note has not been enforced, and it is still outstand- ing and unpaid. Hapgood v. Wellington, 136 Mass. 17 (1884). 2. The release by a married woman of her right of dower in her husband's land is a good consideration for a promissory note, signed by him, payable to a third person , and given by him to her ; and a divorce subsequently ob- tained by him from her, on account of her adultery, is not a failure of such consideration. Nichols V. Nichols, 136 Mass. 256 (1884). 3. A promissory note, given by a debtor to his creditor for the balance of his account, in consideration and upon the secret agreement that the creditor will execute a composition deed with the debtor, which purports to treat all the creditors equally, is void. Suckins v. Hunt, 138 Mass. 366 (1885). ' 4. In an action on a promissory note, there was evidence that the payee had a claim against the maker's wife, of whose estate the maker was administrator and sole distributee ; 125 BILLS AND NOTES, VII. 126 that the note was given in settlement of this claim; and that the payee forbore to prosecute her claim for services until it was barred by the statute of limitations. Held, that there was sufficient evidence of consideration. Nye V. Chace, 139 Mass. 379 (1885). 5. A., who held wool of the value of less than $4,000, consigned to him by B. for sale, in reply to a demand for an advance, tele- graphed to B'. as follows: "Draw fifteen hundred." B. replied by telegraph as follows : "Will you accept draft two thousand dollars ?" To this A. responded as follows: "Think we can get fourteen cents for ninety-nine bales very best. If you decide to sell, draw twenty-five hundred dollars on demand ; if not, draw not over fifteen hundred." B. sent the following telegram in reply: "Sell ninety-nine bales, fourteen cents." On receiving the first tele- gram, B. took it to a bank, and obtained the discount of his draft on A. for $1500; but did not notify A. that he had drawn the draft. On receiving the last telegram sent by A., B. took it to the bank, and asked to have his draft, at sight, on A. for $2500 discounted. In reply to the question whether B. had authorized the sale of the wool proposed in that telegram, B. answered that he had, and showed the last tele- gram from him to A. ; and the bank then dis- counted the draft. Afterwards the draft for $1500 was presented for payment, and paid by A. Upon presentation of the draft for $2,500, A., who had been not previously notified that it had been drawn, refused acceptance and pay- ment ; and it was protested for non-payment, and returned to the bank. B. drew out of the bank his entire balance, before the bank had notice of the dishonor of the draft. Held, in an action on the draft by the bank against A., that the telegrams did not authorize B. to draw more than $2500 in all; and that the action could not be maintained. Nevada Bank v. Luce, 139 Mass. 488 (1885). 6. An agreement in writing, not under seal, was made, by which a minor was bound by his father to a master for a certain time, and the master agreed to teach him a certain art. Subsequently the master sold his business, and the father agreed to continue the agree- ment with the successor. The son afterwards had an opportunty to work for some one else, and his then master released him from his ap- prenticeship, in consideration of the father giving a promissory note for a certain sum, payable to the master. Held, that, although the agreement of apprenticeship did notcomply with the statutory requirements, it was good at common law, and that the note was given for a sufficient consideration. Crombie v. Mc- Grath, 139 Mass. 550 (1885). .- 7. A promissory note, given in payment of a judgment of the Superior Court upon which an action was pending in another State, and in pursuance of an agreement that "neither party" should be entered in the action, and that a person summoned in it as trustee should be allowed to pay the funds in his hands to a claim- ant, is founded upon a sufiicient consideration ; and, in an action upon the note, evidence is inadmissible to impeach the validity of the judgment. Brown v. Ladd, 144 Mass. 310 (1887). 8. A promissory note, given by a widow in paymetit of her deceased husband's debt, and received as such, at her request, by his cred- itor, who receipts his bill against the husband's estate, upon which no administration has been granted, is founded upon a sufficient consider- ation. Carpenter v. . Page, 144 vMass. 315 (1887). VII. Whes subject to Equities, on De- fences BETWEEN 0THE14 PaKTIES. 1. The promisor of an interest coupon pay- able to bearer, and distinguishable from others by a number, who, after notice that it has been stolen, pays it when overdue to the person presenting it, without any inquiry as to his title, is liable to the true owner there- for; although the notice did not contain an offer of a bond of indemnity; although the promisor is a corporation having a very large number of such coupons outstanding, has been in the habit of paying overdue coupons as if still current, and, after the payment, gave notice to the true owner of the name of the person to whom payment had been made; and although the Treasury Department of the United States pays coupons on bonds, issued by the government and payable to bearer, to the person presenting them, without regard to notices that such coupons have been stolen. Hinckley v. Union Pacific Railroad, 129 Mass. 52 (1880). 2. B. gave A. his promissory note, payable in five years, and declared on its face to be given as collateral security for a certain agree- ment. On the same day, and as part of the same transaction, the parties entered into an agreement, by which it appeared that A. ad- vanced to B. the amount stated in the note, which amount was used by B. in the purchase of a parcel of land, B. giving his promissory note, secured by a mortgage of the land, to his grantor. B. also agreed to save A. harm- less from all losses which might occur " in the decrease or sale of the land," and to pay the sum advanced by A. towards the purchase, and also to pay a certain amount in one year on the mortgage, and the balance of it in five years. B. was to have full control of the land, was to pay all taxes and interest on the mortgage, and to sell the land for the joint benefit of A. and B., the proceeds of the sale, after paying the mortgage, to be divided equally between them. Held, that A. could, after the expiration of five years, and after breach of the agreement by B., maintain an action against him on the note. Costelo v. Crowell, 134 Mass. 280 (1883). 3. Certain promissory notes, secured by a mortgage of land, the property of R., the mortgagee, were deposited by him in a bank, of which he was a director, in a package with other' securities, under an agreement that they were all to be held as collateral security for his liability to the bank. E. was accustomed to add securities to this package, and to take 127 BILLS AND NOTES, VIII. 128 securities away from it, ■with the consent of the officers of the bank ; and, in January, 1876, he took away these notes, with the permission of the cashier, and assigned them and the mortgage to W. for their full value ; but the assignment of the mortgage was not recorded until May, 1877. W. requested R. to take charge of the notes for him, and R. placed them in his package at the bank, and collected the interest as W.'s agent. The moi-tgage was never in the bank, and no inquiry was made there in i-elation to it until May, 1877, when the credit of R. had become bad. Neither the president, nor any director, ex- cept R. , knew that the notes had been taken from the bank, and no one connected with the bank knew that he had disposed of them, until he was asked to assign to the bank the several mortgages held by it as collateral security. At the time the notes were first left at the bank, and up to the time of his failure, R.'s debt to the bank had been much greater than the amount of these notes, but much less than the value of all his securities left with the bank. The notes had been re- lied on as fart of the collateral security in making loans to R. ; and, prior to January, 1876, R. had spoken of them as valuable, but they were not alluded to between R. and the other directors after that time. In July, 1876, the bank lent R. a certain sum, relying upon his package of securities as collateral security. At that time the package contained W.'s notes and other securities, including some bonds, which were worth more than the amount of the loan. These bonds R. was allowed, after that time, to take away and dispose of for his own benefit. The directors and officers of the bank had no actual knowl- edge of the return of W.'s notes, and did not rely upon them as security for any loan after- wards made to R. R, acted in good faith in selling the notes and mortgage to W., believ- ing his debt to the bank to be much less than the value of his other securities deposited there, and having forgotten that he had given the agreement as to collateral security. W. had no knowledge of this agreement. Held, that these facts warranted a finding that R. never intended that the notes, after they were again put in the bank, should form part of the collateral security, and that the bank did not hold them as such, nor rely upon them in making loans to R. Wyeih v. Market Bank, 132 Mass. 597 (1882). VIII. Various DErExcES to Bills and Notes. 1. The fact that the maker of a promissory note signed it under duress is no defence to an indorser who signs the note voluntarily, and upon a sufficient consideration. Bowman v. HiUer, 1.30 Mass. 153 (1881). 2. It is a good defence to a promissory note, that the plaintiff, although in possession of the note, has no interest in it, and is prose- cuting the action, not for the benefit of the person beneficially interested, but against his objection. Towne v. Wason, 128 Mass. 517 (1880). 3. If a negotiable proraissoiT- note is given, in payment of a premium for a policy of in- surance, to an insurance company, which gives to the maker of the note a receipt ac- knowledging such payment, and agreeing to return the "payment " if the company does not do a certain act, the maker of the note is not obliged, if the company fails to do the act mentioned, to pay the note, and then seek his remedy on the receipt, but may avail himself of the fact of such failure in defence to an action on the note. Penn Ins. Co, v. Crane, 13-1 Mass. 56 (1883). 4. In an action upon a promissory note given to an insurance company in payment of a premium for a policy of insurance, evidence is admissible that the defendant was induced to make the note by the representations of the plaintiff's agent that certain persons named and known to the defendant were to be men- bers of a local board of directors to be organ- ized for the management of the plaintiff's affairs; and that such representations were false and fraudulent. Penn Ins. Co. v. Crane, 134 Mass. 56 (1883). 5. A. sold to B. the note of a third person, and received therefor from B., after bank hours, his draft, payable at sight, on C, a banker, with whom B. had funds on deposit sufficient to pay it. On the next day, within an hour after the opening of C.'s banking- house, A. presented the draft to C. and re- ceived the latter's check on a bank for the amount thereof, and within an hour after- wards deposited the check for collection to his credit in another bank in which he kept his account. On the following day, the check was presented by the latter bank to the bank on which it was drawn, and payment was refused, C. having failed and suspended payment on that day before the check was presented ; and the check was returned, through his bank, to A. about noon. A. immediately filled out ready for signature a note for the amount of the draft, called on B., told him that the check which he received for the draft was not paid, but did not tell him that C. had failed, although he knew it, obtained B.'s signature to the note, and, after erasing his own in- dorsement on the check, delivered it to B. B., at the time he signed the note, did not know of C.'s failure, or that the check was not presented for payment until the day after it was received, and supposed he received his draft from A. instead of the check. B. at once called on C. and learned these facts, and then tendered the check to A. and demanded the note, but A. refused to receive the one or give up the other. Held, in an action on the note by A. against B., that a finding that B. gave the note voluntarily, and with full knowledge and under no mistake, was un- warranted. Fernald v. Bush, 131 Mass. 591 (1881). 6. If the payee of a draft presents and sur- renders it to the drawee, and receives dur- ing business hours the latter's check for the amount thereof, which is not presented to the 129 BILLS AND NOTES, VIIL 130 bank on which it is drawn until the next day, and payment is then refused, the drawer of the di-aft is discharged from liability thereon. Fernald v. Bush, 131 Mass. 591 (1881). 7. A. sold to B. certain personal property and real estate, taking in payment an amount in money greater than the value of the per- sonal estate, and a promissory note for the residue. The deed of the property was de- fective as to the real estate, because not under seal. Held, that A. could not maintain an action against B. on the promissory note, al- though B. entered into possession of the real estate, and remained in possession until after the action was brought upon the note. Curtis V. Clark, 133 Mass. 509 (1882). 8. A promissory note, which matures more than two years after the giving of a bond by the executor of the will of the deceased maker, is a debt for which provision is made in Gen. Sts. c. 97, § 8 ; and, if the holder does not present his claim to the Probate Court under that section, he cannot maintain an action thereon against the legatees of the deceased under Gen. Sts. c. 101, § 31. Pratt V. Lamson, 128 Mass. 528 (1880). 9. Partial failure of the consideration of a promissory note is a defence to an action on the note, only to the extent of the injury sus- tained by such failure. Black v. Rldgway, 131 Mass. 80 (1881). 10. The forfeiture of interest provided by U. S. Rev. Sts. § 5198, where a national bank has charged a greater rate of interest on a promissory note than is allowed by the laws of the State where the note was made, in vio- lation of § 5197, may be availed of in defence of an action in a State court by the bank upon the note, although the suit is brought in a State other than that of the discount of the note; and such defence is not limited to two years after the unlawful receiving of interest ; the limitation of two years applies to the time within which an action must be brought to recover back twice the amount of unlawful interest paid. Peterborough Bank v. Childs, 130 Mass. 519 (1881). When, however, unlawful interest has been received on such a note, the amount thus re- ceived cannot be set off, in an action by the bank upon the note, against the amount of the principal due thereon ; nor can the amount of interest unlawfully paid in advance by way of discount be thus set off. The bank is en- titled to recover the face of the note, without interest. Peterborough Bank v. Childs, 133 Mass. 248 (1882). 11. In an action on a promissory note se- cured by a mortgage of land, the defendant cannot recoup the damages he has sustained by the negligence of the mortgagee in procur- ing insurance upon a house upon the land un- der an agreement subsequent to the mortgage ; the remedy, if there is any, is by a cross ac- tion. Brighton Savings Bank v. Sawyer, 132 Mass. 185 (1882). 12. In an action against the executor of the maker of a promissory note, not negotiable, which had been assigned to a third person be- fore maturity, for whose benefit the action SUPPLEMENT. — 5 was brought, it appeared that the maker had indorsed another note for the accommodation of the nominal plaintiff, which note was due at the time the note in suit was given, but was not paid by the defendant until after notice to the testator of the assignment of the note in suit. Held, that the defendant could not, under Gen. Sts. c. 130, set off this note, although the plaintiff in interest knew when he took the note in suit that the payee was insolvent. Backus v. Spauluing, 129 Mass. 234 (1880). 13. If A. makes a claim upon B., and B. delivers his promissory note to A., and by his words or acts induces A. reasonably to under- stand that it is delivered in settlement of the claim, it is no defence to an action on the note that B. secretly intended it as a gift. Nye V. Chace, 139 Mass. 379 (1885). 14. Want of consideration between the drawer 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 v. Owens, 140 Mass. 144 (1885). 15. In an action upon a promissory note, it appeared that the note was made for the ac- commodation of L., who was not a party to it; that, when the note fell due, the plaintiff agreed with the defendant that, if the defend- ant would pay him another note made by the defendant and held by the plaintiff, and then due, " the plaintiff would undertake to see and would see L. and collect the note now sued upon from him, and release the defend- ant from liability thereon and deliver said note to him ; " and that the defendant paid the other note, and, relying upon the plain- tiff's agreement, omitted to take any steps to secure payment of the note in suit by L., as he would have done otherwise. Held, that these facts disclosed no defence to the action. Bragg v. Danielson, 141 Mass. 195 (1886). 16. Under tlie Gen. Sts. of Kentucky, c. 22, §§ 6, 21, promissory notes, though negotiable in form, are .subject, in the hands of an in- dorsee, to any defence the maker has against the payee before notice of the transfer. Shoe Sj- Leather Bank v. Wood, 142 Mass. 563 (1886). 17. If the sole consideration of at promis- sory note, which is not negotiable by the law of the State where it is made and is payable, is an agreement to deliver certain goods, and the payee fails in business and is unable to deliver a portion of the goods, in an action upon the note, by an indorsee against the maker, in this Commdnwealth, failure of con- sideration may be set up in defence thereto. Shoe §• Leather Bank v. Wood, 142 Mass. 563 (1886). 18. A. made a promissory note, payable to a town, which was also signed, before delivery, by a firm composed of B. and C. A. held, at the same time, a note of equal amount, signed by B. and C. individually, as an offset for an- other note of the same amount made by A. to D. for the use of B. and C. ; and the money received by B. and C. from the town on the first-named note was paid by them to D. After this A. held the note signed by B. and 131 BILLS AND NOTES, IX. 132 C. individually as an offset or protection ior his liability upon the first-named note; and there was no other consideration for the first- named note between the makers. A. died, and an executor of his will was appointed. A.'s daughter, who was also the wife of B , in settlement with the executor for her share of A.'s estate, made and signed with the other heirs of A. an agreement, by which they re- leased to her all their interest as such heirs in certain real estate, and " also all notes held by A. against B.," and she released to them all her interest in A.'s estate, real and personal. In execution of this agreement, the executor de- livered to A.'s daughter the note signed by B. and C. individually, which was received by her as a part of her share of said estate. B. and C. paid interest on the first-named note wp to a certain day, when the town made demand ■upon A.'s executor for payment of the note. Subsequently, two of A.'s heirs, one of whom was the executor, gave to the town their prom- issory note for the amount of the first-named note, and took from the town treasurer a cer- tificate that it was "given as a guaranty or indemnity" to the town for the first-named note, " which last-named note has been left with" the executor's attorney "for collec- tion," with a stipulation that the makers of the new note were to indemnify the town against the expenses of collection. The town afterwards brought au action on the first- named note against B. and C. The defend- ants offered to show, by C, that he had paid to A.'s daughter his one half of the note which she received from A.'s executor; and also offered to show, by the plaintiff's treas- urer, that he had told the defendants that the note in suit was paid by A.'s executor, and delivered up to him. The treasurer testified that the note in suit was paid him by the ex- ecutor, and that he surrendered the note and gave up all claim to it. Held, that the evi- dence admitted and excluded showed no equi- table defence to the action, within the St. of 1883, c. 223, § 14. Northborough v. Wood, 142 Mass. 551 (1886). IX. Actions on Bills and Notes ; Plead- ings; Pakties; Evidence. 1. In an action upon a promissory note, if it appears that the note has been materially altered since its delivery, and the plaintiff proves that the note has never rightfully or to his knowledge been in the possession of any one but himself and his agent, and that the alteration was not made by him or by his agent, or with the knowledge or consent, di- rectly or indirectly, of either of them, he is entitled to recover on the note as originally written, although he is unable to prove the cir- cumstances of its alteration. Drum v. Drum, 133 Mass. 566 (1882). 2. The unauthorized alteration of a promis- sory note which is complete upon its face, and which has not been intrusted by the maker to any one for the purpose of being filled up or added to, does not make him liable to an ac- tion upon the note in its altered form. Cape Ann Bank v. Burns, 129 Mass. 596 (1880). 3. In an action upon a promissoi-y note, which has been altered since its delivery, if its original tenor is apparent on inspection, it is suflicient to declare upon it in the usual form ; and, upon showing that the alteration is a mere spoliation, there is no variance be- tween the allegation and the proof. Drum v. Drum, 133 Mass. 566 (1882). 4. In an action upon a promissory note, the defendant's omission to deny his signature, as required by St. 1877, c. 163, does not pre- vent him, under a denial in his answer that he made the note, from contending that the note has been materially altered since he signed it, nor relieve the plaintiff from the burden of proving that the note remained in the same condition as when the signature was affixed. Cape Ann Bank v. Burns, 129 Mass. 596 (1880). 5. The owner of a stolen interest coupon payable to bearer, and which has not been paid by the promisor, is entitled to judgment in an action against the promisor, on filing a bond of indemnity, conditioned to save the defendant harmless against all lawful claims by any other person, and against all costs and expenses by reason of such claims. Hinck- ley V. Union Pacific Railroad, 129 Mass. 52 (i880). 6. In an action upon a promissory note secured by a mortgage of real estate, the an- swer to which admits the making of the note, sets up payment, and alleges that the plaintiff so negligently and fraudulently conducted a sale of the estate under a power in the mort- gage that it brought less than the amount due on the note, which would have been fully dis- charged if the sale had been properly man- aged, the burden is on the defendant to prove the facts alleged in the answer. Wadsworth v. Glynn, 131 Mass. 220 (1881). 7. In an action upon a promissory note, if the answer sets up a release under seal, and the release is put in evidence, the plaintiff may show that the release was obtained by fraud, although no replication is filed by him. Lyon V. Manning, 133 Mass. 439 (1882). 8. In an action upon a promissory note se- cured by a mortgage of real estate, which had been sold under a power in the mortgage, the answer admitted the making of the note, de- nied the other allegations of the writ and declaration, and alleged that the note had been fully paid from and out of the mortgaged premises and the rents and profits thereof. Held, that, under the answer, evidence tend- ing to show that the defendant was prevented from bidding at the sale of the estate by the fraud of the plaintiff, was inadmissible in re- coupment of damages. Torrey v. Fenton, 130 Mass. 329 (1881). 9. In an action upon a non-negotiable prom- issory note, signed by the defendant, and pay- able to a third person or bearer, the plaintiff offered to show that, when the defendant gave him the note, he told the defendant it should be in his name or to his order, and that the defendant replied, "It is all right, it makes 133 BILLS AND NOTES, IX. 134 no difference, it is payable to bearer, and yon can collect.'' Held, that the defendant was not estopped from contending that the plain- tiff could not maintain an action on the instrument in his own name. WMtwell v. Winslow, 134 Mass. 343 (1883). 10. In an action against the indorser of a promissory note, payable at the plaintiff bank and discounted by another bank, it appeared that, when the note became due, the last- named bank charged it to the plaintiff bank and sent it through the clearing-house for pay- ment; that the plaintiff's teller by mistake, thinking that the maker of the note was in funds at the plaintiff bank, stamped the word "paid " on the face of the note; that the mis- take was soon discovered, and, before the close of banking hours on the same day, both the other bank and the indorser were notified of it, and the note was duly protested ; and that a dispute betwen the two banks, as to whether the rules of the clearing-house had been com- plied with, was terminated by a payment of the amount of the note to the other bank by the plaintiff, without any waiver of its legal rights, and, at the trial, the other bank dis- claimed all title or interest in the note. Held, that the plaintiff bank had sufficient title and interest in the note to enable it to maintain the action. Manufacturers' Bankv. Thompson, 129 Mass. 438 (1880). 11. In the absence of evidence as to when a thief negotiated interest coupons stolen before maturity, there is no presumption that he ne- gotiated them before, rather than after matu- rity. The owner, therefore, can recover them from one who received them after maturity, and who is unable to show facts which would divest the owner of his title. Hinckley v. Mer- chants' Bank, 131 Mass. 147 (1881). 12. In an action against the indorser of a promissory note, the finding of an auditor that the defendant signed the note and owed the plaintiff the amount of it and the costs of protest will authorize a jury, in the absence of other evidence, in finding that the defendant had been duly notified of demand and non- payment, or had waived such notice, as, the note having been made since the enactment of St. 1874, c. 404, the defendant could not owe the amount unless his liability had thus been fixed. Black v. Ridgway, 131 Mass. 80 (1881). 13. In an action against D. and M. the writ described them as "late copartners under the firm name aud style of D. & Co.," and the declaration alleged that they made a promis- sory note signed " D. & Co." D. alone ap- peared, and filed a general denial. Held, that the signature to the note was alleged to be that of D.; and that, under St. 1877, c. 163, the genuineness of the signature was admitted, and it was not necessary for the plaintiff to prove that D. was a member of the firm of D. and Company. Haskins v. D'Este, 133 Mass. 356 (1882). 14. A memorandum written at the bottom of a promissory note, before delivery, which is repugnant and self-contradictory, is not a part of the contract, and need not be set forth in the copy of the note annexed to the declara- tion; and parol evidence is inadmissible to show what the parties intended by the memo- randum. Way V. Batchelder, 129 Mass. 361 (1880). 15. In an action against an indorser of a promissory note, upon the back of which was written, above the name of the defendant, a waiver of protest, the answer did not deny the signature, but did deny that the defendant in- dorsed the note with any portion of the in- dorsement thereon as set forth. At the trial, the defendant admitted his signature. Held, that the signature was prima facie evidence both of an indorsement of the note and of the waiver of protest. Johnson v. Parsons, 140 Mass. 173 (1885). 16. Upon the question whether a promis- sory note was indorsed for the benefit of a certain person, evidence that he received the proceeds of the note is competent. Winchester V. Whitney, 138 Mass. 549 (1885). 17. A promissory note, made and payable in another State, contained on its face a power of attorney " to confess a judgment without process in favor of the holder of this note." Judgment was rendered against the maker of the note, in favor of an indorsee, by a court of the State where it was made, upon a confession of judgment by virtue of the war- rant of attorney contained in the note. The judgment creditor then brought an action on the judgment in this Commonwealth. Held, that, although the note was not negotiable according to the law of this Commonwealth, the action could be maintained. Richards v. Barlow, 140 Mass. 218 (1885). 18. In an action upon a promissory note for 13,000, the defendant set up want or failure of consideration for the note; and testified that the note and $500 were given upon the plaintiff's promise to deliver to him forty shares of the stock of the N. Company. The plaintiff, in his opening to the jury, stated a different consideration. The defendant, to fortify his testimony, offered in evidence an agreement signed by the plaintiff, which be- gan as follows : " In consideration of |3500 paid me by " the defendant " for forty shares of the N. Company's stock, part of which is held in note .secured by said stock." This agreement was excluded. The plaintiff's signature was admitted; and the defendant testified that the agreement referred to the note in suit. Held, that the agreement should have been admitted. Sawyer v. Orr, 140 Mass. 234 (1885). 19. In an action on a promissory note signed by one H. and indorsed by the defendant, the issue was whether the defendant indorsed the note for the accommodation of the plaintiff, it not being disputed that he did so for H. There was evidence that H. owed the plaintiff, who was financially embarrassed, and the plaintiff desired H. to pay the debt or procure a note which he could get discounted, and suggested that H. should get the defendant to indorse the note, he having had a note of the defendant before. Held, that there was no evidence that H. was acting as the plaintiff's 135 BOARD OF HEALTH. 136 agent in procuring the note, so as to render admissible the testimony of the defendant as to what H. said when he procured him to in- dorse the note. Carter v. Goff, 141 Mass. 123 (1886). 20. At the trial of an action upon a prom- issory note, alleged to be made by the defend- ant, payable to his own order, and indorsed by him to the plaintiff, the latter called a wit- ness, who produced the note declared on, and handed it to the plaintiff's counsel, upon the understanding that it should be returned to him. The plaintiff then claimed the right to put the note in evidence as that declared upon by him, and as the foundation of his action ; and requested the judge to order the witness to produce the note for this purpose, the wit- ness contending that it was his own property. The judge declined so to do; and ruled that the plaintiff was not entitled to recover. Held, that the plaintiff had no ground of exception. Cobbv. Tirrell, 141 Mass. 459 (1886). 21. In an action upon a promissory note, payable " with interest annually," and se- cured by a mortgage of land, the answer alleged that, there being a breach of the con- dition of the mortgage, the plaintiff entered upon and took possession of the mortgaged premises for the purpose of foreclosing the mortgage, " and continued in said possession for the term of three years thereafter, when said mortgage was fully foreclosed;" and that the "land was of greater value than the amount of said note at the time of said fore- closure, and said note has been fully paid." It appeared that the plaintiff entered upon and took possession of the mortgaged prem- ises for the purpose of foreclosing the mort- gage for condition broken, and remained in possession, taking the rents and profits, until the mortgage was foreclosed by the lapse of three years. The judge refused to rule, as requested by the plaintiff, " that, under the answer and evidence, the annual rents and profits could not properly be' allowed in part payment of the note;" found that the note had been fully paid in the value of the mort- gaged premises and in the value of the annual rents and profits; and allowed the defendant to amend his answer, by alleging . that the rents and profits received by the plaintiff while in possession of the premises were of a cer- tain value, and that the same ought to be applied in reduction of the amount due on the note and interest thereon. No part of the evidence introduced at the trial was objected to as not admissible under the answer, as the answer then stood. Held, that the plaintiff had no ground of exception. Aldrich v. Al- drich, 143 Mass. 45 (1886). 22. In an action upon a promissory note, if the answer alleges payment only, evidence is inadmissible to show the delivery and accept- ance of goods, under an agreement that the price of the goods shall be taken as payment of the amount due on the note. Ulach v. Muller, 143 Mass. 379 (1887). 23. In an action upon a promissory note, payable to the plaintiff, and signed by the defendant, the plaintiff offered the note in evidence, and rested. The defendant, who wafs the plaintiff's brother, offered evidence tending to show that he received the amount for which the note was given as a gift from his father, of whose estate the plaintiff was administrator; and that the note was given as a memorandum to show payment, and was to be enforced only in the event that the plaintiff was called upon to account for the amount if needed for the payment of debts. The plain- tiff's evidence tended to show that he lent the amount to the defendant out of money which had been given to the plaintiff by his father, with which he was to pay certain debts, retaining the balance to his own use. Held, that the burden of proof was upon the plain- tiff throughout to show a consideration for the note. Perley v. Perky, 144 Mass. 104 (1887). BIRDS. Under St. 1879, c. 209, § 1, providing that "whoever in this Commonwealth takes or kills any woodcock," or other specified birds, between certain days of the year, " or within the respective times aforesaid sells, buys, has in possession, or offers for sale, any of said birds, shall upon conviction be punished," a person is not punishable for having in his pos- session, offering for sale, and selling a wood- cock lawfully taken or killed in another State. Commonwealth v. Hall, 128 Mass. 410 (1880). BOARD OF HEALTH. 1. An order of a city board of health, which, instead of directing in general terms, as re- quired by Gen. Sts. c. 28, §§ 8 et seq., the owner or occupant of land at his own expense to remove a nuisance, undertakes to prescribe the manner in which it shall be removed, is void. Watuppa Reservoir Co. v. Mackenzie, 132 Mass. 71 (1882). 2. So is an order void under St. 1868, c. 160, which, without a previous notice and hearing, directs the removal of a nuisance. Waluppa Reservoir Co. v. Mackenzie, 132 Mass. 71 (1882). 3. Notice must be given to the State board of health of an appeal from an order of that board, under St. 1878, c. 183, § 6. Pebbles v. Boston, 131 Mass. 197 (1881). 4. A city physician who, by virtue of his office, is a member of a city board of health, which is invested with important powers to be exercised for the safety and health of the peo- ple, is a public officer whose title to office can be. tried by an information in the nature of a quo warranto. Commonwealth v. Swasey, 133 Mass. 538 (1882)., 5. A petition k) the board of health of a city described a nuisance as " owing to large quantities of stagnant water standing in an open drain between " two streets of the city. 137 BOARD OP HEALTH. 138 The board of health issued a notice that it was acting uuder the St. of 1868, o. 160, and abated the nuisance. On a petition for a writ of cer- tiorari to quash the proceedings of the board of health, it did not appear whether the drain was a public or a private one, nor for what purpose it was made ; and it appeared to be a watercourse. Held, that it could not be said that the nuisance was not such as could be abated under the St. of 1868, c. 160; and that it was too late to take this objection. Grace V. Newton Board of Health, 135 Mass. 490 (1883). 6. On a petition for a writ of certiorari to quash the proceedings of the board of health of a city, assessing the expense of abating a nuisance under the St. of 1868, c. 160, the record showed a petition addressed to the board of health, which complained of large quantities of stagnant water standing in an open drain between two streets, from which arose such unhealthy odors as to cause great sickness in the neighborhood, and prayed for a hearing; a reference of the same to the next city government ; a vote of the board of health, the next year, to view the premises; a view taken ; an order that the city engineer, under direction of a committee, be directed to widen, straighten, and deepen a watercourse between the two streets, and that the clerk be in- structed to notify abutters on the watercourse of a hearing on a certain day, under the St. of 1868, c. 160; a warrant issued by the clerk to a constable to notify abutters of the intention of the board of health to enter upon the prem- ises for the purpose of widening, deepening, and straightening the brook, and that a hear- ing would be given, at a time and place named, to all parties interested in the matter, as to the necessity and mode of abating the nuisance caused by the brook, and the ques- tion of damages, and of the assessment and apportionment of the expenses thereof; and a notice setting forth these things, and stating that it was in accordance with the St. of 1868, c. 160. Held, that it sufficiently appeared that the board was attempting to act under this statute. Held, also, that the petition was suf- ficient to give the boai'd jurisdiction. Grace V. Newton Board of Health, 135 Mass. 490 (1883). 7. An assessment cannot be levied, for ex- penses incurred by a board of health under the St. of 1868, c. 160, upon a person to whom notice of the hearing, provided for in § 3, is not given, although he has knowledge of the doing of the work whereby the expenses are incurred. Grace v. Newton Board of Health, 13.5 Mass. 490 (1883). 8. Under the St. of 1868, c. 160, a board of health may act by a committee in abating a nuisance. Grace v. Newton Board of Health, 13o Mass. 490 (1883). 9. If a board of health has given notice of a hearing under the St. of 1868, o. 160, § 3, it need not give a new notice of its intention to make an assessment, under § 5. Grace v. Newton Board of Health, 135 Mass. 490 (1883). 10. A report of a committee of the board of health of a city, upon the assessment of dam- ages and benefits sustained by the abatement of a nuisance, under the St. of 1868, c. 160, was accompanied by orders drawn in accord- ance with the report, and by warrants upon the city treasurer for the collection of assess- ments. The record showed that the repoit was accepted and the orders aild warrants adopted. Held, that the adoption of the re- port sufficiently appeared. Grace v. Newton Board of Health, 135 Mass. 490 (1883). 11. A board of health of a town, in 1881, made a regulation which provided that no swine should be kept in any place in the town, without a permit being first obtained from the board. On a complaint against a person for violation of this regulation, it ap- peared that the defendant kept about a hun- dred and fifty swine, and had been engaged for years in the business of feeding offal to swine. Held, that such a keeping of swine was an "employment," and that the authority of the board to regulate the same was uuder the Gen. Sts. c. 26, § 52, and not under § 5; that the defendant was entitled to notice under § 55 ; and that a publication under § 6 was not sufficient. Commonwealth v. Young, 135 Mass. 526 (1883). 12. Under the Pub. Sts. c. 80, §§ 40, 41, 75, the board of health of a town has no au- thority to take possession of a dwelling-house and the furniture therein, without the consent of the owner and occupant and to his exclu- sion, and use the house as a hospital for a per- son found therein who is infected with a con- tagious disease, and is too sick to be removed without danger to his health ; and the owner cannot maintain an action of contract against the town for the use and occupation of the house during the time it was so held by the board of health. Spring v. Hyde Park, 137 Mass. 554 (1884). 13. A member of the board of health of a town has no authority, against the consent of the owner or occupant, to take possession of a dwelling-house in which a contagious disease exists, and of the furniture therein, to the ex- clusion of such owner or occupant, and to carry away and destroy portions of the furni- ture, or to station a person on the premises with instructions to prevent ingress to and egress from the same, except in the manner pointed out in the Pub. Sts. c. 80. Brown v. Murdoch, 140 Mass. 314 (1885). 14. In an action against a member of the board of health of a town, who unlawfully took possession of the furniture in a house in whicli a contagious disease existed, and de- stroyed it, the defendant asked the judge to rule that the measure of damages was the market value of the property in its infected condition. The judge refused so to rule, and instructed the jury that the plaintiff was en- titled to recover what the property was worth at the time it was taken, taking "into consid- eration how much the value had been affected by its exposure to infection. Held, that the defendant had no ground of ^ception. Brown V. Murdoch, 140 Mass. 314 (1885). 15. It is not necessai-y that a complaint to recover the forfeiture provided by the Pub. 139 BOND. 140 Sts. c. 80, § 21, for permiting a nuisance to remain on premises after the time pi'e- scribed by the board of health of the town for its removal, should be made by the town treasurer, but it may be made by an agent of the board of health, appointed under the Pub. Sts. c. 80, §'16. . Commonwealth v. Alden, 143 Mass. 113. (1886). 16. A notice issued, under the Pub. Sts. c. 80, § 21, by the board of health of a town to the occupant of certain premises, ordering him to remove a nuisance existing thereon, may be served by a constable, although he is a member of the board of health, and signs the notice. Commonwealth v. Alden, 143 Mass. 113 (1886J. 17. A notice issued, under the Pub. Sts. c. 80, § 21, by the board of health of a town to the occupant of certain premises, reciting that a nuisance, " consisting of afilth}' hog-pen and stable," exists thereon, and ordering him "to abate the said nuisance on your estate, and also to remove your hogs outside the limits of the village, within forty-eight hours from the service hereof," is valid as an order to abate the nuisance, and is not rendered void by the direction to remove the hogs. Commonwealth v. Alden, 143 Mass. 113 (1886). 18. A regulation of the board of health of a city, passed under the authoritv conferred by the St. of 1816, c. 44, and the P'ub. Sts. c. 80, and ordering " that on and after this date all rags arriving at this port from any foreign port shall, before being discharged, be disinfected under the supervision of an officer of this board, and in a manner satisfactory to this board," even if the order was formal only, and was passed without any inquiry into the character of the rags or their special history, is not unreasonable. Train v. Boston Disin- fecting Co., 144 Mass. 523 (1887). 19. A regulation of the board of health of a city, passed under the authority conferred by the St. of 1816, c. 44, and the Pub. Sts. c. 80, and ordering "that on and after this date all rags arriving at this port from a foreign poit shall, before being discharged, be disin- fected under the supervision of an officer of this board, and in a manner satisfactory to this board," is not void as infringing the power of Congress " to regulate commerce with foreign nations." Train v. Boston Disinfecting Co., 144 Mass. 523 (1887). 20. Under the St. of 1816, c. 44, and the Pub. Sts. c. 80, §§ 18, 64, 65, 67, 69, the board of health of a city may pass a regulation, with- out a hearing, ordering rags imported into the city to be disinfected, and the expense of such disinfection to be borne by the owner of the rags; and it is not competent for the owner of rags, as a defence to the claim for the charges for disinfection, to show that the rags did not require disinfection, and could not have transmitted disease, if they were of the class concerning which the regulation was made. Train v. Boston Dmnfecting Co., 144 Mass. 523 (1887). 21. Under a regulation of the board of health of a city, made in pursuance of the authority conferred by the St. of 1816, c. 44, and the Pub. Sts. c. 80, §§ 18, 64, 65, 67, 69, ordering rags imported into the city to be dis- infected at the expense of the owner, the work of disinfection may be delegated by the board to a third person, who is entitled to claim a lien upon the rags for his charges. Train v. Boston Disinfecting Co., 144 Mass. 523 (1887). BOND. Appeal Bonds, see Appeai. Bonds to dissolve Attachments, see At- tachment, III. (d) ; Bankruptcy. Bonds to convey Land, see Vendor and Purchaser. Replevin Bonds, see Eeplevin. Bonds of Executors, Guardians, Trustees, see Executor; Guardian; Trustee. See also Bastardy; Poor Debtor; Re- moval OP Action; Scire Facias; Surety. 1. The condition of a bond recited that the obligee was to be indemnified "against all loss, cost, damage, and expense to which he may be subjected by reason of his becoming bail in the United States Court for the State of New Hampshire," for a person charged with a criminal ofience. Held, that the State of New Hampshire is coextensive with the District of New Hampshire ; that there was no uncertainty or illegality in the bond; and that exceptions to a refusal so to rule must be over- ruled, with double costs. Connor v. Harlan, 130 Mass. 265 (1881). 2. A. brought a bill in equity against B. praying for an injunction to restrain the lat- ter from selling certain real estate, under a power of sale contained in a second mortgage, and upon which interest was overdue to a cer- tain amount, until it should be ascertained what sum, if any, was due on the mortgage. A temporary injunction was granted, upon the execution by A. of a bond to B., condi- tioned that, in case it should be determined in the suit that B. was entitled to hold the prem- ises chargeable for the payment of his mort- gage in full, A. should pay the overdue interest thereon with interest on that sum, and "keep down all interest accruing or accrued " on the first mortgage. On motion of A., the injunc- tion was dissolved ; the case was heard on the merits, and the bill dismissed with costs. B. thereupon sold the premises under the power for a sum sufficient to pay the first, but not the second, mortgage in full. Held, in an ac- tion against A. on the bond, he having paid the interest on the second mortgage, that B. was entitled to recover of A. the interest ac- crued on the first mortgage at the time the injunction issued, as well as the interest ac- cruing thereon from that time to the dissolu- tion of the injunction. Goodrich v. Foster, 131 Mass. 217 (1881). 3. A contract was made by a city with several persons, by the terms of which the lat- ter were to perform certain work for the city, and, in case of a breach on their part, the city had the right to order them to discontinue 141 BOND. 142 work, and to place such persons, and obtain by purchase or hire such animals, carts, im- plements, and tools, as the city engineer might deem necessary, " by contract or otherwise," and to charge the expense to the contractors. A breach took place, the contractors were no- tified to stop work, the city, intending to act in pursuance of the powers conferred upon it by the original contract, in good faith, and in the exercise of a reasonable discretion, made a new contract with one of the former con- tractors, in precisely the same terms as those contained in the first contract; he committed a breach of the new contract, and the city took possession of the work, hired men and implements, and completed the work. Held, in an action by the city against a surety on the bond of the first contractors, given for the faithful performance of their contract, that the defendant was not released from liability by the notice given to the original contractors to discontinue the work; that the city had the right to act as it did after the breach of the first contract, and had a right to charge him for services of men who took the place of men whom the contractors would have been obliged to employ, if they had gone on with the work, although the city had em- ployed these men, as inspectors, before the breach. Held, also, that the surety was liable for sums paid in settlement of claims for in- juries accidentally done to the property of third persons by the blasting of rocks, al- though no notice of such claims was given to the contractors. Held, also, that the surety was not liable for surgical assistance rendered to the workmen who were injured during the progress of the work, nor for sums which the city had paid, after the breach by the contrac- tor, for the wages of workmen hired by the contractors, for services rendered by them be- fore such breach. Newton v. Devlin, 134 Mass. 490 (1883). _ 4. Under Gen. Sts. c. 57, §§ 137, 138, pro- viding that the trustees of a savings bank shall be chosen annually, and shall appoint a treasurer who shall hold office during their pleasure, the office of the treasurer is not an annual one; and a bond given by him for the faithful performance of the duties of his office " while he acts as treasurer " is a continuing bond. Commonwealth v. Reading Savings Bank, 129 Mass. 73 (1880). 5. A fund was left by will, for a charitable purpose, to be managed by trustees to be chosen once in thi-ee years. The trustees were incorporated by an act which gave the corpo- ration power to appoint officers. A. was chosen treasurer for several successive terms of three years, and in 1874 gave a bond, conditioned that he would account for the funds of the corporation deposited in his hands, and which should come to his hands as treasurer, and would faithfully perform the duties of his office. Held, that the bond was not a con- tinuing bond ; and that the sureties could not be made liable for any default occurring after the expiration of the term of three years from 1874. Richardson School Fund v. Dean, 130 Mass. 242 (1881). | 6. An agent of an insurance company gave a bond, with sureties, to the company, con- ditioned for the faithful performance of his duties as agent, according to the by-laws of the company. A by-law required that the agents of the company should render monthly accounts and pay each month the balance due to the company. The agent rendered his ac- counts regularly; but, one month, did not pay the whole balance due from him, and there- after for more than a year his indebtedness to the company increased from month to month until it exceeded the penal sum in the bond, when, for the first time, the sureties were noti- fied. Held, that these facts did not discharge the sureties. Watertown Ins. Co. v. Simmons, 131 Mass. 85 (1881). 7. The refusal of a constable to restore at- tached property to the owner, upon the termi- nation of the action in the latter's favor, is a breach of the condition of his official bond that he shall " faithfully perform all the duties of a constable in the service of all civil pro- cesses which may be committed to him." Dennie v. Smith, 129 Mass. 143 (1880). 8. Under Gen. Sts. c. 137, § 9, as amended by St 1871, c. 315, § 2, a judgment of the Municipal Court of Boston, for possession of the demanded premises and costs, may be en- forced by scire facias upon the bond given on an appeal from that judgment to the Superior court. Melvin v. Bird, 131 Mass. 561 (1881). 9. In a suit upon a constable's official bond, it is immaterial that the declaration does not in terms describe him as holding the office of constable. Dennie v. Smith, 129 Mass. 143 (1880). 10. If the condition of a bond is that the obligor will, on demand, pay a debt of the obligee to a third person, and will indemnify and save the obligee harmless for the amount of the debt, the condition is broken on the re- fusal of the obligor to pay the debt, on demand by the obligee, and an action may be main- tained upon the bond, although the creditor has made no demand for payment of the debt. Shattuck v. Adams, 136 Mass. 84 (1883). 11. If the condition of a bond is that the obligor shall, upon demand, pay a debt of the obligee to a third person, the condition is broken if the obligor fails, upon demand by the obligee, to pay the debt; and the fact that the obligor has given a guaranty to the cred- itor is immaterial. Shattuck v. Adams, 136 Mass. 34 (1883). 12. A. gave a promissory note to a savings bank, signed by himself as principal and by B. as surety. For the security of B., A. gave him a mortgage of personal property. Subse- quently, A. sold the property to C, subject to the mortgage; and C. executed a bond to A., which contained the condition that C. should pay the note to the bank, and should hold A. and B. harmless thereon. Held, in an action on the bond brought for the benefit of B., that if B. without right took possession of the property, or subsequently foreclosed his mort- gage, there was no failure of the consideration of the bond. Shattuck v. .4 dams, 136 Mass. 34 (1883). 143 BOND. 144 13. In an action against the sureties upon a bond given to a bank by C, and conditioned for the faithful discharge of his duties as clerk of the bank, a breach of which is proved, the question whether a former judgment recovered by the bank against C. is conclusive evidence of the amount for which the sureties are liable is not open, but judgment must be entered for the penal sum of the bond. Rollstone Na- tional Bankv. Carleton, 136 Mass. 226 (1884). 14. An officer, who fails to complete an at- tachment of property by returning the writ upon which the attachment is made, cannot, after judgment against him in an action by the owner of the attached property, maintain an action against the obligors in a bond, given to the officer by the attaching creditor, to indem- nify the officer against liability by reason of the attachment. Wiggin v. Atkins, 136 Mass. 292 (1884). 15. B. executed a bond to A. conditioned to reimburse to A. a certain proportion of such sum as A. might be compelled to pay " to the treasurer or attorney of the United States," by reason of the liabilities to be assumed by A. as surety of H. for the faithful performance of his duties as additional paymaster, to which he had been appointed. The instrument pro- vided that the bond given by H. and A., when executed, was to be taken " as part of these presents for knowledge of the contents there- of." H. as principal and A. as surety subse- quently gave a bond to " the United States or their certain attorney," conditioned not only for the faithful performance by H. of the duties of his office, but to regularly account for moneys received by him as paymaster, and to refund any public moneys unaccounted for. Held, that these differences in the lan- guage of the two bonds did not affect the lia- bility of B. to A., if there was a breach of the bond given by A. as surety to the United States. Curtis v. Banker, 136 Mass. 355 (1884). 16. B. executed a bond to A. conditioned to reimburse to A. a certain proportion of such sum as A. might be compelled to pay to the United States by reason of the liabilities to be assumed by A. as surety of H. A bond was afterwards executed to the United States, by H. as principal and by A. as surety, for the faithful performance by H. of the duties of his office. A default on the part of H. afterwards took place, and the United States after his death, without making any demand on his representatives, brought an action against A. This action was continued for several years to allow A. to apply to the Court of Claims for relief. This relief was refused by that court. A. then consented to a default, and judgment was rendered against him for a certain amount, with interest from the date of the writ, and costs. The United States then sued out a writ of error, claiming to be entitled to interest from the time of the breach by H. ; and A. sued out a writ of error, claiming to be liable only for nominal damages. The judg- ment rendered below was affirmed by the Su- preme Court of the United States. A. paid the judgment, and brought an action against B. on the bond executed by him. Held, that, although no notice had been given to B. of the action brought against A., B. was liable, not only for his proportionate part of the principal sum, but also for his proportion of the interest and costs paid by A., if A. in resisting the action against him had acted with good faith and with due diligence. Curtis v. Banker, 136 Mass. 355 (1884). 17. Upon a bond given under the St. of 1877, c. 97, by a person having an interest in money or credits attached by trustee process, to dissolve such attachment, with the condi- tion to pay to the plaintiff the sum for which the trustee may be charged, if any, within thirty days after final judgment, no action can be maintained if the trustee has been de- faulted, and, although adjudged a trustee, lias not been charged for any sum. Cunningham V. Hogan, 136 Mass. 407 (1884). 18. It is no defence to an action upon a bond conditioned for the faithful performance by a person, who has been appointed ticket- seller of a railroad corporation, of "all the duties of the said office which are or may be imposed upon him under this or any future appointment," that, after his appointment, the capital stock of the corporation was increased, his duties, by reason of the corporation form- ing business connections with other corpora- tions, enlarged, and his salary augmented accordingly. Eastern Railroad v. Loring, 13S Mass. 381 (1885). 19. A bond was given to an officer with condition to indemnify him from all suits, damages, and costs whereto he might be liable or obliged by law to pay by reason of levying a certain execution. The owners of the prop- erty levied on recovered judgments against the officer, whereon executions were issued. Held, that, in an action on the bond, the obligor was liable for the amount of the pen- alty, although the executions had not been paid by the obligee. Cook v. Merrifield, 139 Mass. 139 (1885). 20. A bond, which was not dated, and did not contain an approval of the adverse party or of the justice, recited in its condition an appeal from a judgment given by a district court in favor of the plaintiff in the action, but did not state against whom it was given, when it was rendered, or the amount thereof, either in debt or costs. The record of the dis- trict court showed that the appellant recog- nized before the court with sufficient sureties, but made no mention of any bond. Held, that the bond did not comply with the re- quirements of the Pub. Sts. c. 154, § .52, and the St. of 1882, c. 95; and that the appeal was rightly dismissed. Putnam v. Boyer, 140 Mass. 235 (1885). 21. A bond executed by the treasurer of a corporation was conditioned that he " shall faithfully discharge his said trust as treas- urer, and shall take good care of the corpo- rate funds which may come to his hands, and shall make good to the corporation any losses therein which may accrue by reason of any gross neglect or misfeasance of his, during his official service ; and shall faithfully fulfil his 145 BOSTON. 146 duties as treasurer, according to the constitu- tioa and by-laws " of the corporation. The by-laws provided that it should be the duty of the treasurer to take charge of all moneys be- longing to the corporation ; to collect all fees and taxes ; to pay all bills against the corpora- tion when approved by the board of directors ; to keep a full account of all receipts and expenditures in a book belonging to the cor- poration ; and to invest the funds of the cor- poration, with the approval of the board of directors. In an action upon the bond, the plaintiff introduced evidence tending to show that the defendant refused to assist a person authorized by the directors to collect money due the corporation, by furnishing neces- sary bills and papers; that a book of records of the corporation was found on the defend- ant's table with some of the entries torn out; that he took part with others in seeking a dissolution of the corporation; and that he exposed property of the corporation to be at- tached by a creditor. Held, that there was no evidence of a breach of any condition of the bond in suit. The Literati v. Heald, 141 Mass. 326 (1886). 22. The condition of a bond given to an at- taching officer, to indemnify and save him harmless " of and from all suits, damages, and costs whatsoever, whereunto he may be liable, or obliged by law to pay to any person or persons, by reason of the said attachment," includes counsel fees reasonably incurred in the defence of an action occasioned by the attachment. Lindsey v. Parker, 142 Mass. 582 (1886). 23. If, in an action on the Pub. Sts. c. 175, to recover possession of certain premises, brought in a district court, which has jurisdic- tion of the cause and of the parties, judgment is rendered for the plaintiff, from which the defendant appeals to the Superior Court, and gives a bond, with sureties, to prosecute his appeal, and the action is entered and tried in the Superior Court, which affirms the decision of the district court, to which exceptions are taken, heard, and overruled in this court, and final judgment for the plaintiff is entered in the Superior Court for possession of the prem- ises, it is not open to the pi'incipal or sureties, in an action upon the bond, to question the validity of the judgment on the ground that the appeal should have been completed by a recognizance instead of a bond. Granger v. Parker, 142 Mass. 186 (1886). 24. B. and C, who were brother and sister, and who occupied a house and land owned by them, requested A. to enter into an arrange- ment for their support during their lives, in that house. In consequence of this, they con- veyed to A. the house and land, and A. exe- cuted to them a bond, in the penal sum of $3,000, conditioned that he should faithfully provide for them, in sickness and in health, good and proper food, medicine, and clothing, and proper and kind care and nursing during their natural lives, together with fuel for each of them, prepared and housed for their fires, and suitable board and care for a horse, for their own use ; that B. was to use and occupy a certain room of the house, and C. a certain other room in the house, when built; that they were to have the right to pass through the other rooms in the house, to and from their rooms, to the well, barn, privy, and yard; and that A. should not sell the house during their lives. A. on the same day executed a mort- gage of the premises to B. and C. which con- tained the condition that A. should pay them the sum of $3,000, on demand, or should sup- port and maintain them as provided in said bond. The mortgage also contained a power of sale. Before these instruments were exe- cuted, A. spent between $2,000 and $3,000 in making alterations in the house for their oc- cupancy. A., B., and C. lived together in the house for about three years, when B. died, and C, the sister, left the house, without fault on the part of A., and lived elsewhere, claim- ing a right to support from A. in her new home. This A. refused to furnish. Held, that there was no breach of the condition of the bond; and that A. could maintain a bill in equity against C. to restrain her from selling the land under the power contained in the mortgage. Dwelley v. Dwelley, 143 Mass. 509 (1887). BOOKS. Competency, as evidence, of medical books, books of record, books of account, &c., see EVIDENCB. BOSTON. Municipal Courts of Boston, see Appeal, III. ; Police Courts. Public Park in Boston, St. 1875, c. 185, see Park. Raising grade of land to abate nuisance in Boston, under St. 1873, c. 340, see Nui- sance. See Auditor of Accounts. 1. It is competent for the board of alder- men of the city of Boston to pass an order, directing the superintendent of streets to remove a sidewalk bordering on a paved street; and such order is not " executive" or "administrative," within the meaning of the St. of 1885, c. 266, § 6, vesting the " execu- tive" power of the city government in the mayor, " to be exercised through the several officers and boards of the city in their respect- ive departments, under his general super- vision and control," and giving to such officers and boards, in their respective departments, " the direction and control of all the executive and administrative business of said city." Attorney General v. Boston, 142 Mass. 200 (1886). 2. The board of aldermen of the city of Boston passed an order, directing the super- intendent of streets to remove a sidewalk on a paved street within a specified time, and to 147 BOUNDARY. 148 pave that portion of the street covered by the sidewalk so as to conform to the adjoining part of the street, " the expense thereof to be charged to the appropriation for paving." There had been an appropriation for the paving department, at the beginning of the year, of a certain sum for the objects and purposes explained in the recommendations of the committee on paving, which included new work on streets already laid out and on those which might be petitioned for, and for repairs and maintenance of streets and roads. The St. of 1885, c. 266, § 6, provided that "no expenditure shall be made nor liability in- curred for any purpose beyond the appropria- tion duly made therefor." Held, that the order was valid. Attorney General v. Boston, 142 Mass. 200 (1886). 3. The power conferred by the St. of 1846. c. 167, § 11, and the St. of 1861, c. 105, § 13, upon the city councils of Boston and Charles- town respectively to appropriate the surplus income arising from water rates to a sinking fund, and which, by the St. of 1875, c. 80, and an ordinance passed in pursuance thereof, became vested in the Boston Water Board, is not taken away by the St. of 1875, c. 209 (Pub. Sts. c. 29). Minotv. Boston, 142 Mass. 274 (1886). BOUNDARY. See Deed; Grant; Way. 1. In a conveyance of a parcel of land by several metes and bounds, the omission of one boundary line is unimportant, if there is suf- ficient in other parts of the deed, as applied to the particular premises, to show the extent and limits of the parcel intended to be con- veyed. Woodward v. Nims, 130 Mass. 70 (1881). 2. A misdescription of the courses of the boundary lines in a deed of land to the grantor of a vendor, will not justify a purchaser in re- fusing to accept a deed, and enable him to recover back the part of the purchase money already paid, if the monuments referred to so clearly identify the land that the courses may be rejected as en-oneous, and especially where the vendor's grantor had been in open, exclu- sive, and adverse possession of the land for more than twenty years. Galvin v. Collins, 128 Mass. 525 (1880). 8. On a writ of entry, it appeai'ed that the owner of a large tract of land lying between O. and P. Streets conveyed the lot bounded on O. Street to A., the next lot to B., and the re- maining land to C. , who conveyed to D. a lot bounded by P. Street, describing it as of a cer- tain width, to the tenant a lot of certain width, bounded easterly by D.'s land, and to the de- mandant a lot also of a certain width, bounded easterly by the tenant's land and westerly by B.'s land. It was found as a fact, that the line of P. Street had not been changed from its position since it was established, while the line of O. Street had varied. Held, that the demandant, for the purpose of establishing his easterly line, was entitled to pat in evi- dence th edeeds to D. and to the tenant; and that the tenant was not entitled to put in evidence the deeds to A. and B. Devine v. Wyman, 131 Mass. 73 (1881). 4. The owner of a large tract of land di- vided it into lots, shown on a plan, and con- veyed one lot, rectangular in shape, bounding it beginning at a certain distance from the westerly corner of a fence around a distant lot, and thence by a line running around the lot conveyed, the courses and distances of which were given. The deed also contained a condition that the front line of the house should be a certain distance from the street on which it bounded; a condition that the house should occupy the entire width of the lot; and a recital that the house then on the lot was in compliance with these conditions. An adjoining lot was conveyed to the same person by a deed containing a similar descrip- tion, and similar conditions and recitals. The grantee then conveyed the first lot, using the same description as in the deed to him. Held, that his grantee had title to the centre of the partition wall between the two estates, even though the effect of measuring from the fence of the distant lot would be to place the whole of the partition wall in the second lot. San- born V. Rice, 129 Mass. 387 (1880). 5. The proprietors of a town, in 1684, laid out two highways through the town, ten rods wide, crossing on6 another at a right angle. In 1723 they laid out a lot at the intersection of the two highways, describing it as " left for the minister," and as bounded " against " one of them, and as " butting " upon the other. Neither in 1684 nor in 1723 had the proprie- tors of a town any authority to lay out high- ways or town ways. From time immemorial the town used a portion of the way laid out in 1684 for a school-honse, and up to 1860 maintained a hearse-house upon it, and in 1811 the town voted to give a lot of land within the way to the Commonwealth for a gun -house. Held, that by the grant of 1723 the fee to the centre of the ways did not pass, and that the lot was bounded by the external lines of the ways. Phelps v. Webster, 184 Mass. 17 (1883). 6. A lease of a " store," — Held, to include the land under it, and to the middle of a pri- vate way in the rear, the fee of which was in the lessor. Hooper v. Farnsworth, 128 Mass. 487 (1880). 7. A passageway was laid out in the rear of lots of land which fronted on two streets, and ran in an easterly direction to another street, called S. Street ; and it was extended subsequently by other owners of land in a westerly direction to the land of a third per- son. After this the owner of a lot of land, the rear of which was bounded partly by the passageway as first laid out, and partly by the passageway as extended, conveyed the lot, bounding it on the " passageway which runs to S, Street, with a right to the free use in common with others having rights therein of the said passageway leading to S. Street." 149 BOUNDARY. 150 Held, that the grantee had a right of way only to S. Street, and had no rights in the ex- tended passageway westerly of his land, even if his grantor had rights therein at the time of the conveyance. Langmaid v. Higgins, 129 Mass. 353 (iSSO). 8. Ancient plottings for plans and field notes made by a surveyor, which are obtained from the custody of his administrator after his death, are inadmissible in evidence at the trial of a writ of entry, to show the location of a disputed boundary line, it not appearing that they were made by the authority or pro- curement of the grantors of either party to the action. Boston Water Power Co. v, Han- Ion, 132 Mass. 483 (1882). 9. A deed of land described it as "begin- ning at the northwesterly corner of a piece of land conveyed to me by C," thence by vari- ous courses and distances to a certain road, " thence southwesterly by said road " a cer- tain distance " to a stone wall, thence south- erly by said wall " a certain distance " to land of said C, thence easterly on said C.'s land" a certain distance "to the point of beginning." It appeared that the wall men- tioned in the deed terminated at the south- easterly line of the road. Held, that the deed passed the fee to the middle of the road. Dean v. Lowell, 135 Mass. 55 (1883). 10. A. conveyed a parcel of laud, the north- erly line being described as running fifty- four feet and four inches on a certain street, and the west line as running one hundred and the east line one hundred and five feet southerly, and both at right angles with the street, as conveyed to A. in three deeds, re- ferred to, and called in the last deed lot No. 27, "meaning and intending to convey all the land as now fenced." One of the deeds referred to conveyed a parcel of land called No. 27, the side lines of which extended back from the street the distances named in A.'s deed. The northeast corner of the lot was subsequently sold to B. and the remainder to C, and they conveyed to A., and their deeds were two of the deeds referred to in the deed made by A. At the time A. made his deed there was no fence along the southerly line of lot 27, but twenty-one feet north of this line was a fence extending part way across the lot, on the southerly line of the parcel sold to B. In extension of this fence was a gate and a shed, and the three ran entirely across the lot. Held, that the deed of A. conveyed the whole of lot 27 ; and that parol evidence was inadmissible to show that A. intended to con- vey only to the fence. Stowell v. Buswell, 135 Mass. 340 (1883). ' 11. A deed of land described as bounded by "the sea," or by "the harbor," conveys the shore below high-water mark ; otherwise when the land is bounded by "the beach," unless this description is controlled by other parts of the deed. Litchfield v. Seituate, 136 Mass. 39 (1883). 12. A deed described the boundaries of a parcel of land as "commencing" on a way, thence west ten rods, thence south four rods, thence east ten rods, thence south on the road to the place of beginning. Held, that the presumption that the side lines of the lot extended ten rods from the side of the way could be controlled by evidence that the par- ties at the time of the conveyance established monuments at the end of ten rods from the centre line of the highway, and that the land was thereafter fenced and occupied in accord- ance with such monuments. Dodd v. Witt, 139 Mass. 63 (1885). 13. A deed of a parcel of land described it as bounded north fifty-six feet by a certain street, " east two hundred feet by other land of said grantors on a passageway," south fifty-six feet by certain land, and west two hundred feet by another street. The grantors owned no part of the streets, and no passage- way in fact existed. Held, that no part of the passageway was on the land conveyed. Treat v. Joslyn, 139 Mass. 94 (1885). 14. A deed of a lot of land in a city described it as bounded beginning at the intersection of D. Street and W. Street, thence running northerly by W. Street one hundred and thirty-four feet to land of the grantor, thence running westerly by land of the grantor sixty feet, thence running southerly by land of the grantor " at right angles to D. Street one hun- dred and twenty-five feet to D. Street, thence running easterly by D. Street sixty-one feet more or less to the first-mentioned bound, containing 7,770 feet more or less." The lines of D. Street and W. Street were fixed bounds. Held, that the third line ran at a right angle to D. Street, although this would make the fourth line on D. Street eighty and fifty-two one-hundredths feet long, and the area 9,101 feet. Held, also, that the following evidence was inadmissible to control the construction given to the deed : Before the deed was exe- cuted, the grantor made a plan of a tract of land, of which the lot in question formed a part, on which the line on U. Street was rep- resented to be sixty feet and six inches in length, and the third line was not at a right angle to D. Street. It did not appear that this plan had been seen by the grantee. The grantor subsequently conveyed the adjoining lot, and the deed described the boundaries on the theory that the lot previously conveyed was as shown on said plan. Seven years after the first deed was given, the owner of the second lot erected, with the consent of the grantee of the first lot, a division fence be- tween the two lots, on the line shown on said plan, and this fence remained in position several years. Hall v. Eaton, 139 Mass. 217 (1885). 15. A deed described the west line of the land conveyed as starting at a fixed point, where it was agreed that there were a stake and stones, and thence running " north forty- two degrees west, forty-four rods, to the fence at the highway;" and covenanted that the land was free from all incumbrances, " except a right, which is reserved, to draw water at the well on the west line of said land." The description in the deed left the well about eleven feet from the west line. Held, that the well was not a monument fixing the west 151 BOUNDARY. 152 line of the land conveyed. Maguire v. Slur- tevant, 140 Mass. 258 (1885). 16. A deed of land contained the following boundaries: "thence southerly by the high- way to land of M.'s mill privilege, thence southerly by M.'s land to the highway; " and also contained general covenants of seisin, against incumbrances, and of warranty. Held, that the deed referred to the "land of M.'s mill privilege " merely as a monument or boundary of the land conveyed ; and that the mill privilege was not taken out of the opera- tion of the general covenants of the deed. Eddy V. Chace, 140 Mass. 471 (1886). 17. At the ti-ial of a writ of entry, it ap- peared that all the parties claimed title through deeds from one R., and that the question in dispute was the location of the northeast corner of the demandant's lot, and the southeast corner of the tenant's lot. The demandant's line was described as beginning at the southeast corner of the tenant's lot, and running southerly four rods on a road. The tenant's line on the road was described as run- ning from the northeast corirer of land of H. four rods, to land of O. R. had previously conveyed the demandant's lot to H. by a deed which described the line on the way as run- ning from the southeast corner of land sold to B. southerly four rods; and H. reconveyed it to R. No deed had been made by R. to B., but a bond for a deed had been given, the description of the land in which did not ap- pear in evidence. At the time that the deed to H. was given, R. still owned the land sold to O. Held, that, even if, at the time of the deed to the tenant, O.'s line was a fixed mon- ument, the demandant was not entitled to a ruling that the tenant's southeast corner and the demandant's northeast corner was to be determined by measuring four rods southerly on the way, from O.'s land. Held, also, that evidence was admissible, in behalf of the ten- ant, to show that, when H. took his deed, a stake was pointed out to him by the agent of R. as the boundary between his lot and B.'s lot; and that the owners of other lots, having deeds from R. , built their division fences on lines which recognized this stake as a monu- ment. Held, also, that R. was properly al- lowed to testify that the southern boundary of H.'s lot was a stone wall, which was four rods southerly of this stake. Barrett v. Murphy, 140 Mass. 133 (188.5). 18. A deed, which described the grantors and grantees as the heirs at law of E., re- leased and quitclaimed a lot of land on the north side of a street, describing it by metes and bounds, being the same premises con- veyed to E. by a certain deed, " together with all our right, title, and interest in the land be- tween said lot and the sea, lying on the south- erly side of said street. The said E. died seised of said estate." At the time of his death, E. was seised of the lot first described in the deed, and of an undivided interest in a large tract of land on the southerly side of the street, which tract embraced land not only directly in front of the lot on the north eide of the street, but east and west of that land. One of the grantors, at the time the deed was executed, held, as heir of E., an un- divided fortieth part in the lot north of the street, and in the tract south of it, and also, by an independent title, an undivided fifth part in the tract south of the street. Held, that the deed included the entire tract south of the street, and not merely the pai't directly in front of the lot on the north side of the street. Held, also, that as to this tract only the title which the grantors had therein as heirs passed; and that the independent title of the grantor mentioned did not pass. In- galls V. Newhall, 139 Mass. 268 (1885). 19. A deed described the land conveyed as bounded northerly on a lane in front, easterly on an alley way and other land owned by the grantor, and southerly and westerly by the lands of persons named. The deed gave the measurements of all the lines, and de- scribed the premises conveyed as extending over said alley way at the height of eight feet, and across the same "until it comes against another house of " the grantor. It gave also the right of passing up and down the alley way to a vault at the head thereof (the south- erly end), and a privilege in the pump in the street. It appeared that the measurements excluded the alley way; that the grantor's house on the westerly side of the alley way only extended as far northward as the northerly boundary of the land conveyed according to the measurement of the grantee's easterly line, but that the grantor's lot extended north- ward of his house, and that he owned a small strip in front of the alley way; and that the pump was either on this strip or in front of the land conveyed. Held, that this small strip northward of the alley way did not pass by the deed. Old South Society v. Wainwriglit, 141 Mass. 443 (1886). 20. A deed of land described as bounded "on the beach" does not convey the shore below high-water mark, unless this boundary is controlled by other parts of the description. Litchfield v. Ferguson, 141 Mass. 97 (1886). 21. A deed of land described the boundary line as beginning at the southwest corner, thence running northerly in the east line of P. Street, to the line of H. Street; thence easterly in line with said street to the river, and so on in the same course into the river. H. Street at the time of the conveyance ex- tended from P. Street to the river, a distance of about thirty feet. The entire length of the last line named was several hundred feet. The grantor owned other land northerly of the land conveyed, and abutting on it except for the distance the land conveyed was bounded by H. Street. Held, that the north- erly line of the land conveyed was the south- erly line of H. Street, and a line in extension of that line. Hamlin v. Pairpoint Manuf. Co., 141 Mass. 51 (1886). 22. At the trial of a writ of entry, brought in 1884, it appeared that the demandant claimed title under a deed, executed in 1863, which described the land conveyed as bounded as follows: "Beginning at a corner of the premises conveyed, on the road leading from 153 BREAKING AND ENTERING BUILDINGS. 154 O. to H. ; thence N. 16° W. 127i rods by land of P. to stones at a corner ; thence N. 54° E. 30 rods to stones; thence N. 53° E. 55 rods to stones; thence N. 54° E. 24 rods and 18 links to a white-oak or corner; thence S. 33° E. 37 rods to stones, the four last lines by land of grantor; thence S. 50° E. 62 rods by land of W. to the aforesaid road at stones; thence by said road 169 rods and 8 links to the first-mentioned bound." The deed also conveyed another lot, on the opposite side of the road, and described the whole as contain- ing by estimation 126 acres more or less. It further appeared, that the lines on the land of P., on the road, and on the laud of W. , were not in dispute; and that there were monu- ments at or near most of the points indicated by the courses and distances between the es- tablished boundaries. It further appeared, that the line " S. 33° E. 37 rods to stones " was not long enough, by about 850 feet, to reach to W.'s land. There was also evidence that, if the missing line were supplied, the tract would contain some forty acres more than the number stated in the deed; that a portion of some of the lines described as running by land of the grantor would fall outside of his land; and that there was an oak tree at the point which the tenant contended the deed was meant to indicate. Held, that oral evidence was admissible to show that such a line was adopted by the parties to the deed of 1863 as to warrant the inference that the monuments did not agree with the courses, and to raise a presumption that monuments of the kind mentioned had previously existed on this line. Flagg v. Mason, 141 Mass. 64 (1886). 23. The owner of a large tract of land laid out streets and passageways over it, divided it into lots, and caused a plan thereof to be made. He conveyed these lots to differ- ent grantees by deeds bounding them on the streets and passageways, and describing the lots by measurements which excluded the streets and passageways. The deeds also re- ferred to the plan, and conveyed to each grantee a right, as appurtenant to the lot con- veyed to him, to use the passageways in com- mon with the grantor and his assigns. Held, that each grantee took the fee to the centre of the street or passageway on which his lot abutted. Gould v. Eastern Railroad, 142 Mass. 85 (1886). 24. If a deed describes the boundary line of a parcel of land as beginning at a certain point, and thence running across a road, and thence by the side of the road, title to the centre of the road does not pass, unless a con- trary intent appears. Holmes v. Turner's Falls Co., 142 Mass. 590 (1886). 25. A deed described the boundary line of a parcel of land as "beginning at a stake and stones on the county road," thence by various courses and distances back to the county road, thence to the first bound, and bounding on said county road. In an action where the is- sue was whether the deed conveyed the title in fee to the centre of the road, the evidence was conflicting as to the location of the stake and stones. The judge instructed the jury that, if they found that the stake and stones were on the side line of the road, title to the centre of the road did not pass; and that, if they could not find where the stake and stones were, title to the centre line of the road passed by the deed. Held, that the first ruling was sufliciently favorable to the party who con- tended that the stake and stones were on the side of the road, and that the second ruling was correct. Chadwick v. Davis, 143 Mass. 7 (1886). BOUNTY. See Limitations. BREACH OF PROMISE OF MARRIAGE. 1. It is no defence to an action for breach of a contract to marry, that the defendant broke the contract because he felt that the proposed marriage would not tend to the hap- piness of both parties. Coolidge v. Neat, 129 Mass. 146 (1880). 2. In an action by a woman for breach of a promise of marriage, alleged to have been made in 1875, rescinded by mutual consent in 1878, and renewed the same year, the answer admitted the making of the contract in 1875 and its rescission, but denied its renewal. Held, that the plaintiff had no ground of ex- ception to the rejection of evidence, offered by her, that in 1839 and 1840 she and the de- fendant were attached to one another, but not engaged to be married; that each soon after married another person ; and that, while so mai-ried, there were friendly relations between them. Dean v. Skiff, 128 Mass. 174 (1880). 3. An oral agreement to execute an ante- nuptial contract is within the statute of frauds ; and if .an oral agreement to marry is depend- ent upon such an agreement, and a part of it, no action can be maintained upon it. Chase V. Filz, 132 Mass. 359 (1882). 4. In an action by a woman for breach of a promise of marriage, the judge instructed the jury that, in estimating the damages, they might take into consideration the money value or worldly advantage of a marriage which would have given her a permanent home and an advantageous establishment, the wound and injury to her affections, whatever mortification or distress of mind she suffered resulting from the defendant's refusal to perform his prom- ise, and, in this connection, the length of time during which the engagement had sub- sisted. Held, that the defendant had no ground of exception. Coolidge v. Neat, 129 Mass. 146 (1880). BREAKING AND ENTERING BUILDINGS. See HOUSBBKEAKING. 1. An indictment alleging that the defend- ant broke and entered the building of A. 155 BRIDGE. 156 " with intent then and therein to commit the crime of larceny, and the property, goods, and chattels of said A. in said building then being found, then and there in said building feloni- ously to steal, take, and carry away," charges but one intent, the allegation of which is descriptive, and i» not supported by proof of an intent to steal the property of B., in or of which A. had no title, custody, or possession. Commonwealth v. Moore, 130 Mass. 45 (1880). 2. An indictment alleged that the defendant " feloniously did break and enter a certain building, to wit the store of A., with intent then and there in said store to commit the crime of larceny." The evidence was that A. occupied a building, in which were a saloon, a kitchen, two dining-rooms, and a bedroom, and in one of the dining-rooms, which was a front room into which a door opened from the street, there was a bar ; that he kept and sold beer, cigars, and oysters, and cooked meals for customers ; and that the defendant entered by a back door which opened directly into the kitchen, one of the dining-rooms and the bedroom being between the kitchen and the bar-room. Eeld, that there was evidence for the jury that the building was a " store," vfithin the ordinary meaning of that word as used in this Commonwealth ; and that the de- fendant had no ground of exception to a rul- ing that he was not entitled, as a matter of law, to an acquittal on the ground of a vari- ance between the allegation and the proof. Commonwealth v. Whalen, 131 Mass. 419 (1881). 3. It is no misjoinder to charge in the same indictment, either in one or in several counts, one person with breaking and entering a build- ing, and another person with receiving the goods stolen. Commonwealth v. Darling, 129 Mass. 112 (1880). 4. An indictment, on the Gen. Sts. c. 161, § 12, alleged that the defendant broke and entered, in the night-time, a certain building in S., "to wit, the office building" of a cor- poration named, with intent to commit lar- ceny therein. At the trial there was evidence that the building entered was used for the general office of the corporation, and that there were other buildings in S. owned by the corporation and used for its subordinate offices. Held, that the building entered was sufficiently described in the indictment. Com- monwealth V. Moriarty, 135 Mass. 540 (1883). 5. An indictment, on the Pub. Sts. c. 210, § 8, alleged that the defendant attempted to break and enter a certain dwelling-house in the night-time, with the intent to steal therein, and in such attempt broke and opened three ■windows in said house, but was intercepted and prevented in the execution of said offence. At the trial, a police officer, who arrested the defendant, testified that, on the night in ques- tion, he saw the defendant on the piazza in front of said house ; that the defendant turned the corner of the house, and the witness fol- lowed; that the defendant then ran into the yard and hid; that the witness searched for him with a lantern, and found him lying on the ground, apparently asleep, and with his face covered with a handkerchief ; that he made conflicting statements to the witness as to his name and residence ; and that three windows in the lower part of the house, which had been shut, were opened, and the fasten- ings, which were on the inside, were turned aside. Held, that the judge properly declined to instruct the jury, as requested by the de- fendant, that, on the evidence, they would not be warranted in finding a verdict of guilty. Commonwealth v. Shedd, 140 Mass. 451 (1886). BRIBERY. 1. An indictment on the Pub. Sts. c. 205, § 9, for giving a bribe to a judicial officer, al- leged that the transaction took place when the defendant "was lawfully brought before the District Court of Central Berkshire, a court duly and legally established, and before J. T., Esquire, the standing justice of said court;" that said J. T. was then and there lawfully presiding in said court ; and that he was a judicial officer duly qualified to perform his duties as such. Held, that the indictment sufficiently alleged that the matters referred to were pending befoi-e the justice in his official capacity, and that he was duly ap- pointed. Commonwealth v. Murray, 135 Mass. 530 (1883). 2. If a person makes a full and complete delivery of money to a magistrate, with the corrupt intention of influencing his decision in a matter pending before him, such person is guilty of corruptly giving a gift to the magistrate, within the Pub. Sts. c. 205,' § 9, although the latter receives the money in ignorance of what it is, and retains it solely for the purposes of public justice. Common- wealth V. Murray, 135 Mass. 530 (1883). BRIDGE. See Railroad; Wat. 1. A city, which has the duty imposed upon it by statute of maintaining a bridge as a public highway, is not liable for an injury sustained by the owner of a vessel in conse- quence of a detention caused by the draw of the bi'idge being of less width than that pre- scribed by law, or for the carelessness of the superintendent of the bridge in delaying the vessel, unless such liability is expressly im- posed by statute. French v. Boston, 129 Mass. 592 (1880). 2. St. 1789, c. 35, § 3, by vphich a part of a town was incorporated into a separate town, provided that the inhabitants of the new town should thereafter support and keep in good repair their proportionable part of a bridge known by the name of M. Bridge in the same proportion that the towns now pay in the present valuation. The bridge referred to crossed a river, and from each end of the bridge a causeway was built of earth and 157 BRIDGE. 158 stones. In 1878, a new bridge was built, higher and wider than the old, and it became necessary to raise and widen the causeways accordingly. Held, that the word " bridge " in the statute meant the structure which crossed the stream and its approaches, and did not include the causeways, in the absence of any custom, usage, or agreement existing between the two towns which fixed the con- struction to be given to the word. Swanzey v. Somerset, 132 Mass. 312 (1882). 3. St, 1870, c. 219, authorized county com- missioners "to lay out a highway and con- struct a bridge and suitable draw across the M. Kiver in the towns o^ G. and H. ;" and provided that the commissioners were " to de- termine and award what cities and towns receive particular and special benefit from the construction and maintenance of said road and bridge, and to apportion and assess upon said county and such cities and towns, and in such manner and amount as they shall deem equitable and just, the cost of construc- tion and maintenance of such road, bridge, and draw." The commissioners duly pro- ceeded to locate the highway and bridge; ordered the same to be constructed, assessing the expense thereof on the county, the towns of W. and G., and the city of H. ; and awarded " that the city of H. and the town of G. shall each maintain and keep in repair one half of the bridge and one half of the draw, each main- taining that part contiguous to the highway leading on to the bridge from their own city and town." Held, that the award was valid; and that an action might be maintained against the town of G. for personal injuries oi-iiised by a defect in that portion of the bridge which the town was by the award bound to keep in repair, although such por- tion was outside the limits of the town of G. Whitman v. Groveland, 131 Mass. 5.53 (1881). 4. A statute authorized county commission- ei-s to lay out and build a bridge across a river between a city and a town, and to file a report of the cost in the office of the clerk of this court; directed the court to appoint commis- sioners to determme what cities and towns in the county were or would be specially bene- fited by the bridge, and what proportions of the cost should be paid by those cities and towns respectively ; and provided that their award, when returned to the court, and judg- ment entered thereon, should be binding upon all parties interested. After the bridge was built, and a report of the cost filed, commis- sioners were appointed, and made an award, upon which judgment was entered, determin- ing that the city and town between which the bridge was built should pay the county the whole cost of the bridge in certain propor- tions. A subsequent statute provided that this court should appoint commissioners to determine and report the amount of special benefit which the said city and town received from the bridge, and, if they should find that such special benefit did not equal the cost of the bridge, as appearing by the report on file, to determine that the county should pay to the city and town the amount that each had paid in excess of the benefit received therefrom. Held, that this statute was constitutional. Agawam v. Hampden County, 130 Mass. 528 (1881). 5. A town is not liable for an injury caused by a defect in a bridge or its approaches, which a railroad corporation is bound by law to keep in repair, although the bridge is part of a highway, and the town has made a con- tract with the railroad corporation to keep the same in repair, has made repairs upon it within six years prior to the injury, and, with knowlege of the defect in question, has suf- fered it to remain without warning to the public. Rouse v. Somerville, 130 Mass. 361 (1881). 6. The charter of a railroad corporation provided that, if the railroad should cross any highway, the railroad should be so constructed as not to impede or obstruct the safe and con- venient use thereof ; that the corporation should have the power to raise or lower such highway, and, if it should do so in a manner not satisfac- tory to the selectmen, the latter might require in writing of the corporation such alteration or amendment as they might think neces- sary; and that, if the required amendment or alteration was reasonable and proper, and the corporation should unnecessarily and unrea- sonably neglect to make the same, the select- men might proceed to make such alteration or amendment, and might recover the cost there- of from the corporation. Held, in an action for personal injuries, occasioned by the defect- ive construction of a bridge built and main- tained by the corporation over a highway, at a place where the highway had not been raised or lowered, that, under its charter, the corporation was bound so to construct and keep its railroad as not to impede or obstruct the safe and convenient use o£ the highway ; and that, even if the bridge was adequate for such use when built, and an increased use rendered it inadequate, the corporation must alter the bridge. Cooke v. Boston §• Lowell llailroad, 133 Mass. 185 (1882). 7. A person injured by a defect in a bridge, forming part of a highway, which a railroad corporation is bound to keep in repair, cannot maintain an action against the corporation without giving the notice required by St. 1877, c. 234, § 3, to be given to the " per- sons " obliged to keep the same in repair ; and a notice that the plaintiff was injured by " a defect in the bridge," does not sufficiently des- ignate the cause of the injury. An omission in the declaration to allege the giving of due notice may be availed of by demurrer. Dickie V. Boston §• Albany Railroad, 131 Mass. 516 (1881). 8. A notice, to a town bound to keep a bridge in repair, that a person was injured through a defect or want of repair in the bridge, and that the cause of the injury was the breaking and falling of a certain span in the bridge, sufficiently states the cause of the injury, within St. 1877, c. 234. Whitman v. Grooeland, 131 Mass. 553 (1881). 9. An action against a town for personal injuries caused by a defect in a highway or 159 BY-LAWS AND ORDINANCES. 160 bridge, since St. 1877, c. 234, is not prema- turely begun, although brought so soon after notice is given that an opportunity is not afforded the town to call a town meeting to see if the town will pay the amount of the injury. Whitman v. Groveland, 131 Mass. 553 (1881). 10. In an action against a town for an in- jury sustained by the falling of a bridge which the town was bound to keep in repair, evi- dence is admissible to show that the cause of the falling of the bridge was an accumulation of snow on the roadway, or the excessive weight of the planking thereon, or the defect- ive condition of the iron-work, or all of these combined. WhitTuan v. Groveland, 131 Mass. 553 (1881). 11. The St. of 1794, c. 30, provided, in § 1, that a bridge should be erected over a river in a certain town and county, "one half of which to be at the expense of said county, and the other half to be borne by the said town : " and, iu § 2, that the bridge " shall hereafter be maintained, repaired, and supported in man- ner as is hereinbefore directed." The officers of the town always made the necessary repairs of the bridge, receiving one half of the expense thereof from the county. Held, that a person injured by a defect in the bridge could main- tain an action therefor against the county; that, if tlie nonjoinder of the town as a de- fendant could be availed of, it could only be in abatement; and that, this not having been done, the county was liable for the whole damages. Lyman v. Hampshire, 140 Mass. 311 (1885). For cases concerning the notice requisite under St. 1877, c. 234, see also Way. BROKER. See Agent, VIII. BURDEN OF PROOF. See Evidence, II. BURGLARY. See Breaking and Entering ; Larceny. BURIAL; BURIAL GROUNDS. See Way. If a husband has not freely consented to the burial of his wife in a lot owned by an- other person, with the intention or under- standing that it should be her final resting- place, a court of equity may permit him, after such burial, to remove her body, coffin, and tombstones to his own land, and restrain interference with such removal. Weld v. Walker, 130 Mass. 422 (1881). BY-LAWS AND ORDINANCES. For By-Laws of Private Corporations and Associations, see Beneficiary Associa- tion ; Corporation ; Insurance ; Reli- gious Society ; Voluntary Association. 1. An ordinance of a city, by the charter of which all powers vested in the mayor and aldermen and common council jointly are " to be exercised by concurrent vote, each board to have a negative upon the other," the pas- sage of which is shown, as to the board of mayor and aldermen, by the certificate of the mayor, the chairman of that board, and, as to the common council, by the certificate of its president, is not invalidated by a departure from a provision of the joint rules and orders of the city council, directing that every ordi- nance shall be passed first in the common council. Chandler v. Lawrence, 128 Mass. 213 (1880). 2. An ordinance of a city, which provides that the pay of police officers shall be fixed by the mayor and aldermen, will not warrant the aldermen, the mayor non-concurring, in denying to police officers, lawfully holding their offices, all pav whatever. Murphy v. Webster, 131 Mass. 4'82 (1881). . 3. A city, which has located, built, and maintained a sewer, as laid out by an order of the board of aldermen, through the land of a person, cannot, at the trial of a petition by such person for an assessment of his damages, avail itself of an omission in the order of the boundaries and measurements, even if they are required by the ordinances of the city to be stated in such order. Saunders v. Lowell, 131 Mass. 387 (1881). 4. If an ordinance of a city creating a cer- tain office provides that the incumbent may be removed at the pleasure of the city council, the subsequent repeal of the ordinance by the city council, and notice to the incumbent of such repeal, operate as a removal from the office. Chandler v. Lawrence, 128 Mass. 213 (1880). 5. Under Gen. Sts. o. 19, § 13, authorizing cities to " make such rules and regulations for the erection and maintenance of balus- trades, or other projections upon the roofs or sides of buildings therein, as the safety of the public requires," a city has no power to pass an ordinance prohibiting the maintenance of door-steps within the limits of a highway, which are lawfully there; nor is such power conferred by its charter, which authorizes it to make " all such salutary and needful by- laws, as towns, by the laws of this Common- wealth, have power to make." Gushing v. Boston, 128 Mass. 330 (1880). 6. A city ordinance, repugnant to the stat- ute which confers power upon the authorities of the city to make ordinances, is void. Com- monwealth V. Allen, 128 Mass. 308 (1880). 7. Under a statute, authorizing a city to annex a penalty not exceeding fifty dollars for a breach of its by-laws, its board of fire com- missioners (whose only authority is to make regulations subject to penalties provided for the breach of the city by-laws) has no power, 161 BY-LAWS AND ORDINANCES. 162 after finding a person in tlie employ of tlie fire department guilty, on charges of violations of its rules and regulations, to sentence him to "forfeit the amount of one month's pay,' which is one hundred dollars, a rule of the a& partment providing that violations of its rules and regulations may be punished by fine; and he may maintain an action against the city for the amount so declared to be forfeited, and such action is not a violatioii by him of an agreement that he would be subject to the penalties in the regulations of the fire depart- ment. Tyngy. Boston, 133 Mass, 372 (1882). 8. The ordinance of the city of Boston, giv- ing the superintendent of the Common and public grounds the care and superintendence of the trees in the streets of the city, does not empower such superintendent to cut down a tree in a street of the city, which belongs to an abutter. McCarthy v. Boston, 135 Mass. 197 (1888). 9. The city ordinance of Worcester, c. 9, § 3, requiring the commissioner of highways to make a full and accurate estimate of the expense of proposed work, and of damages to abutters or others, and to make plans and re- port them with his estimates to the city coun- cil, is merely directory ; and his failure to do so is no ground for quashing an assessment laid upon an owner of a lot of land for con- structing a sidewalk in front of his land. Dickenson v. Worcester, 138 Mass. 555 (1885). 10. A municipal regulation which prohibits any person from allowing his vehicle to stop in a street for a longer time than twenty min- utes, is a valid police regulation, under the Pub. Sts. c. 28, § 25; and, on a complaint for violating the provisions of the regulation, evi- dence that the defendant had a license as a hawker or pedler from the Commonwealth, under the Pub. Sts. c. 68, is immaterial. Com- monwealth V. Fenton, 189 Mass. 195 (1885). 11. An ordinance of a city, prohibiting the riding or driving of any horse in its streets "at an immoderate gait, so as to endanger or expose to injury any person" thereon, is not authorized by the Pub. Sts. c. 53, § 13. Com- monwealth V. Roy, 140 Mass. 432 (1886). 12. -An ordinance of the city of Boston, providing that no person shall, except by per- mission of the committee of the city council having charge of the public grounds, deliver a sermon, lecture, address, or discourse on the Common, or other public grounds, is reason- able and valid. Commonwealth v. Davis, 140 Mass. 485 (1886). 13. The provision of the Pub. Sts. c. 27, § 21, requiring the by-laws of towns, after approval by the Superior Court, or a justice thereof, to be recorded in the oflBce of the clerk of that court, does not, by force of the Pub. Sts. c. 28, § 2, apply to the ordinances of the city of Boston. Commonwealth v. Dacis, 140 Mass. 485 (1886). 14. The provision of the Revised Ordi- nances of the city of Boston, that they " shall be published two weeks successively in three daily newspapers published in the city," is SUPPLEMENT. — 6 directory, and a compliance with it is not a condition precedent to the validity of an ordi- nance, especially if the ordinance is a re-enact- ment or continuation of a similar ordinance which was duly published. Commonwealth v. Daiiis, 140 Mass. 485 (1886). 15. At the trial of a complaint for the vio- lation of an ordinance of a city, which is a re- enactment of a similar ordinance, evidence that the previous ordinance had been repeat- edly violated and disregarded is immaterial and inadmissible. Commonwealth y. Davis, 140 Mass. 485(1886). 16. A regulation of the board of aldermen of a city provided that no person having the care or ordering of a vehicle should suffer the same to stop in a street more than twenty minutes. A complaint alleged that the de- fendant, on a day named, " was the person then and there having the care and ordering of a certain vehicle, to wit, a cab, and did then and there, without having any license, authority, or appointment, according to law, so to do, suffer said vehicle to Stop in a certain public street situate within said city, and called C. Street, for a longer time than twenty minutes." Held, that the complaint was sufficient. Commonwealth v. Rowe, 141 Mass. 79 (1886). 17. It is no defence to a complaint for the violation of a municipal regulation, prohibit- ing any person from allowing his vehicle to stop in a street for a longer time than twenty minutes, that the defendant had a license as a hawker and pedler from the Commonwealth , under the Pub. Sts. c. 68, §§ 4-6. Common- wealth V. Lagorio, 141 Mass. 81 (1886). 18. The provision of the Pub. Sts. c. 27, § 21, requiring the by-laws of towns to be approved by the Superior Court, or a justice thereof, does not apply to the regulations of the board of aldermen of the city of Bos- ton. Commonwealth v. Lagorio, 141 Mass. 81 (1886). 19. The Pub. Sts. c. 104, § 1, re-enacting the St. of 1872, e. 243, provide that any city or town, which accepts the statute, " may, for the prevention of fire and the preservation of life, by ordinances or by-laws not repugnant to law, and applicable throughout the whole or any defined part of its territory, regulate the inspection, materials, construction, altera- tion, and use of buildings and other structures within its limits." A city accepted the statute, and, assuming to act under it, passed the following ordinance: " No person shall erect, alter, or rebuild, or essentially change any building or any part thereof for any pur- pose other than a dwelling-house, without first obtaining in writing a permit from the board of aldermen. The application for such permit shall specify the location and size of the building, the material of which it is to be constructed, and the use for which it is intended." Held, that the ordinance was broader than that authorized by the statute, and was invalid. Newton y. Belger, 143 Mass. 598 (1887). 163 CAPITAL AND INCOME. 164 C. CAMP-MEETING. It is not necessary to the maintenance of an indictment under St. 1867, c. 59, for estab- lishing and maintaining a building for vend- ing provisions and refreshments, during the time and within one mile of the place of hold- ing a 6amp-meeting for religious purposes, ■without obtaining permission from the au- thorities or officers having the charge of the meeting, to show that there was a formal or- ganization of the meeting, or that notice of the meeting was given to the defendant. Com- mnnwealth v. Bearse, 132 Mass. 542 (1882). The foregoing statute is constitutional. It possesses the appropriate characteristics of a police regulation. Commonwealth v. Bearse, 132 Mass. 542 (1882). CANAL. 1. If the charter of a canal corporation pro- vides that the corporation shall not begin to construct its canal, or take any land or prop- erty therefor, until it has deposited a certain sum with the treasurer of the Commonwealth as security, among other purposes, for the payment of damages for taking land, a de- posit with the treasurer, by the corporation, of United States bonds of the par value of the sum required, and of a larger market value, is a sufficient compliance with the charter, when accepted as such by the treasurer, so far as any rights of a landowner, whose land is taken by the corporation, are affected. Briggs v. Cape Cod Ship Canal, 137 Mass. 71 (1884). 2. The St. of 1883, c. 259, incoi^jorated a canal corporation " with all the privileges and subject to all the liabilities set forth in all general laws which now are or may hereafter be in force relating to railroad corporations, so far as they may be applicable, except as hereinafter provided ; " and provided, in § 19, that the capital stock might be fixed by the corporation within certain limits; and that the corporation might locate, but could not begin to construct, its canal, or take land therefor, until it had deposited a certain sum with the treasurer of the Commonwealth as security for certain purposes. Held, that the Pub. Sts. c. 112, §§ 85, 86, relating to the location and construction of railroads, did not apply to the corporation. Briggs v. Cape Cod Ship Canal, 137 Mass. 71 (1884). 3. The St. of 1883, c. 259, incorporating a canal corporation, provided, in § 3, that the corporation might lay out its canal not exceed- ing a certain width, and should file the loca- tion thereof, within a time specified, with the county commissioners; in § 4, that the corpo- ration might purchase or otherwise take land and materials necessary for making or secur- ing its canal and structures and works, and, if not able to obtain such land or materials by agreement with the owner, the corporation should pay such damages as the county com- missioners or a jury upon appeal might esti- mate ; and in § 5, that the corporation should pay all damages occasioned by laying out and making and maintaining its canal, and by taking any land or materials, as provided in § 4, and such damages should, upon the appli- cation of either party, be estimated by the county commissioners, " and when it is in- tended to take land or materials, such applica- tion shall be made before the actual taking or appropriation thereof." Held, that the laying out and filing by the corporation of the loca- tion of its canal, under the provisions of § 3, was a taking of all the lands included within the limits of the location ; and that it was not necessary that an application for the assess- ment of a landowner's damages should be made before the actual taking or appropria- tion. Briggs v. Cape Cod Ship Canal, 137 Mass. 71 (1884). CAPITAL AND INCOME. See also Devise ; Tkust. 1. A testator bequeathed a residuary fund to trustees, in trust " to hold the said property as they may receive the same, or at their dis- cretion to sell the same or any part or parts thereof," and to invest the proceeds of such sales according to their best judgment; and, whenever they might deem it expedient, to sell at any time any substituted property held on the trusts, and to invest the proceeds ac- cording to their best judgment; with power to convert real estate into personal estate and personal estate into real estate, and to prefer a lower interest and gain to a larger one which might involve risk of loss, and, subject to the payment of certain annuities out of the income, "to pay all the remaining net rents and income during the continuance of trust " to such of four persons, the testator's wife and three children, as might be living at the time of payment, and to the lawful issue of any then deceased child, such issue taking by representation. Twenty years after the death of the survivor of said four persons, the trust property was to be conveyed to the tes- tator's issue then living, they taking by repre- sentation according to the stocks. At the tes- tator's death, he left bonds which were worth more than par, and which have since fallen, due. Since his death, the trustees had bought other bonds, some at a price slightly above par and some at par and accrued interest. Held, as between the life tenants and the remain- dermen, that the former were entitled to all the net interest on the bonds received from 165 CAPITAL TRIALS. 166 the testator or bought by the trustees when ■worth more than par; and that the amount paid for accrued interest on the bonds bought should be retained from the interest subse- quently received. Hemenway v. Hemenviay, 134 Mass. 446 (1883). 2. A testator directed the trustees under his will to pay out of the income of the estate annuities of |500 each to certain persons named, who were his nephews and nieces in the first degree, but were not designated as such, except that they were described as chil- dren of certain of his brothers and sisters. The will further provided as follows: " They [the trustees] shall annually divide and dis- tribute the residue of the net income of said trust property and estate, which shall remain after the foregoing provisions of this trust have been fulfilled, among my nephews and nieces in the first degree, in such proportions, not however exceeding five hundred dollars to any one in the same year, so long as the whole of said income may be distributed by giving no larger sum to any one, however un- equal, as my said trustees may deem expedi- ent, so long as five of ray said nephews and nieces shall survive." Tlie will also provided that, " In all cases where I mention my nephews and nieces in this will, I intend to include N. and S. as fully as though they were not otherwise mentioned herein." Held, that all the nephews and nieces in the first degree were entitled to share in the residue of the net income in the manner specified, with- out regard to the fact that some of them had received specific annuities under the will; that no more than $300 could be paid to any nephew or niece from the residue in any one year, until all the nephews and nieces had re- ceived that sum from the residue for that year; and that N. and S. were not-entitled to specific annuities, but only to share in the residue. Held, also, that the income which accrued in the hands of the executor and was paid to the trustees was to be treated by them as income. Cushing v. Burrell, 137 Mass. 21 (1884). 3. A testator by his will directed the trus- tees thereunder to hold the residue of his property "invested as they may receive the same, or at their discretion to sell or exchange the same." From before the date of his will to his death he was a member of a part- nership whose articles provided that, if any member should die, his executors should be entitled to his share of the profits up to the time of taking the second semiannual account after his death. The articles also declared that, the business requiring no capital, none was contributed, but provided for loans to the firm by the partners when needed, at a specified rate of interest. At the time of his death he had lent the firm a large sum of money. Held, that profits received by the trustees over and above interest on the loans should be treated as capital, and not as income. Mudge v. Parker, 139 Mass. 153 (1885). ' 4. A testator by his will gave the residue of his property in trust to pay all of the net in- come to his wife during her life, and at her death to distribute the fund among those who would take as distributees of his personal estate, if he had died intestate immediately after the death of his wife. At her death, the trust fund contained bonds for the pay- ment of money, with semiannual coupons attached, payable at different times. The trustee collected the coupons as they matured. Held, that, under the Pub. Sts. c. 136, § 25, the amounts received by the trustee from the coupons not payable at or before the time of the death of the wife, being coupons for interest for six months, which had begun to run at her death, should be apportioned be- tween her estate and the distributees under the will of the testator, according to the pro- portional part of the six months which in each class of coupons had elapsed at her death. Adams v. Adams, 139 Mass. 449 (1885). 5. If a trustee under a will, who holds a fund in trust to pay the income to a person during his life, with remainder over, makes an investment in bonds which are payable at a day certain, and are bought at a premium, he is not obliged to pay the entire net income to the tenant for life, but is entitled to deduct such an amount from the actual interest re- ceived on each bond as will, by successive de- ductions, make good to the capital the amount of premium paid upon the original purchase of the bond, without regard to the market value of the bond at the time of making such deductions. New England Trust Co. v. Eaton, 140 Mass. 532 (1886). 6. A testator by his wUl gave the residue of his estate to his executors in trust during the lives of his four sons ; and directed the trustees to convert said residue into three enumerated kinds of securities, called stocks, and "to pay over all the dividends and in- come of said stocks, over and above the costs and charges of the executors and trustees, .... as fast as they shall be received, in equal proportions, to each of my said four sons." The trustees bought certain bonds, included in the securities specified in the will, for which they paid a premium. Held, that the testator intended that the whole income, after conversion into the prescribed securities, should be paid to his sons, without any de- duction to make good to the remaindermen the premium which it might be necessary to pay in buying them. Shaw v. Cordis, 143 Mass. 443 (1887). CAPITAL TRIALS. See Homicide. CARRIER. I. Liability in General. II. Special Agreements, limiting or en- larging Liability. III. Duties as to Delivery. 167 CARRIER, L, IL 168 IV. Liability as Warehouseman. V. Successive Cakriers. VI. Freight, and Lien therefor. VII. Passenger Carriers. VIII. Carriers of Animals. IX. Indictment for Homicide. See Case Stated; Negligence j Kail- boad; Warehouseman. I. Liability in General. 1. In an action against a railroad corpora- tion for the loss of a case of goods intrusted to it for carriage, there was evidence that the case, together with other goods filling two cars, was delivered to the defendant at L. to be transported to P., whence it was to be car- ried by a line of steamers to A. ; that the two cars were received by the agents of a steamer from the defendant " unopened and just as they were received," and were kept on their wharf carefully watched and guarded until the goods were transferred to the steamer; and that, on unloading the cars, it was found that the case was not on either car. The de- fendant asked the judge to rule that there was no evidence of the loss of the case between L. and the depot at P. Held, that this ruling was rightly refused. Green v. Boston §• Lowell Railroad, 128 Mass. 221 (1880). 2. A person hired of a common carrier a hack and driver to take himself and two trunks to a house on a certain street, at each end of which posts were placed so that the hack could not enter it. Upon the earner proposing that the driver should take another man to assist him in carrying in the trunks, the hirer said that he would help him. When they arrived at the entrance to . the street, he went to the house with a valise, leaving the driver to unload the trunks; he then returned and suggested that they take the heavier trunk first, to which the driver assented, saying, " I will set the other in here," putting the smaller trunk inside the posts. They then went to the house with the larger trunk; and, upon their return, the other trunk had been stolen. Held, that these facts would warrant a find- ing that the hirer had waived a delivery of the trunks at the house. Patten v. Johnson, 131 Mass. 297 (1881). 3. A common carrier is not liable in trover to the consignor, for sun-endering the posses- sion of goods, intrusted to him for carriage, to an officer, who attaches them upon legal pro- cess against the consignee ; nor does the carrier become liable, for taking no notice of the con- signor's demand that he should notify the officer, or take other steps to stop the goods in transitu ; the carrier owes no such duty to the consignor. French v. Star Union Transp. Co., 134 Mass. 288 (1883). 4. A. hired a shop and also a post-office box in a certain town, assuming the same name as that of a reputable merchant in that town. After writing to the plaintiff, upon paper up- on which were printed his assumed name and the number of his post-office box, and asking the price of certain goods, and receiving a reply, he ordered a quantity of the goods. The plaintiff, relying upon the financial standing of the person whose name was as- sumed, and supposing the letters were written by him, forwarded the goods, addressed to A. with the name of the town, by a common carrier, and sent a letter, which was received by A., notifying him of the shipment. The carrier took the goods to the shop hired by A. and delivered them to the occupant, who signed receipts for them in his assumed name; and he'soon afterwards disappeared. Held, that, in the absence of negligence on the part of the carrier, the plaintiff could not maintain an action against him for conversion of the goods. Samuel v. Cheney, 135 Mass. 278 (1883). 5. An article was delivered in Paris, France, to L., who was engaged in the express busi- ness, for carriage to S. in this Commonwealth. The receipt issued by L. was headed " Amer-i ioan-European Express," with the name of B, in the margin. The bill rendered by B. for the carriage of the article was also headed " American-European Express," gave on one side the address of American "Branch Offi- ces," on the other side had the words, " For- eign Agencies: Paris," and charged the whole freight from Paris to S. A letter froiji B., written after the delivery at S., stated that "the American-Europea,n , Express is not a corporation. The propiietors in Paris are L., and in New York, B.,", In an action against B. for injury done to the article in the course of carriage from Paris to S., the jury found for the plaintiff, and also found specially that B. was jointly interested with L. in the ex- press business from Paris. Held, that the finding was warranted by the evidence. Case V. Baldwin, 136 Mass. 90 (1883). n. Special Agreements, limiting or enlarging Liability. 1. This clause in a carrier's contract, " Spe- cie, drafts, bank-bills, and other articles of great intrinsic or representative value, will only be taken upon a representation of their value, and by a special agreement assented to by the superintendent," does not apply to a family portrait, contained in a wooden, case. Green v. Boston Sj- Lowell Railroad, 128 Mass. 221 (1880). 2. Goods were delivered to a common car- rier under a bill of lading containing a stipu- lation that they were shipped at an agreed valuation of a certain sum, and that, if a loss occurred for which the carrier was responsi- ble, the value of the goods at the time and place of shipment was to govern the settle- ment, " except the value of the articles has been agreed upon with the shipper." The carrier had no knowledge of the value of the goods except that furnished by the statement of the shipper, and the charge for transporta- tion was based upon snch valuation. The goods were lost by the negligence of the car- rier's servants. Heldf in an action for such 169 CARRIER, III., IV., v., VI., VII. 170 loss, that the shipper was estopped to claim uiore than the agreed valuatiou of the goods. Graves v. Lake Shore Sf Michigan Southern Railroad, 137 Mass. 33 (1884). in. Duties as to Delivehy. 1. The delivery of goods by a common car- rier to a person unauthorized to receive them, without requiring the production of a bill of lading, but relying upon his representation that he is the holder of it, is a conversion, for which an action will lie against the carrier by the person entitled to the possession of the goods, without regard to the question of the carrier's due care or negligence. Forbes v. Boston Sf Lowell Railroad, 133 Mass. 154 2. If A., representing himself to be a brother of a reputable merchant in a certain town, buying for him, buys, in person, goods of another, the property in the goods, does not pass to A. ; and, in an action by the seller against a common carrier, to whom the car- riage of the goods is entrusted, for delivering them to A., the carrier cannot justify on the ground that he has delivered them to the owner. Edmunds v. Merchants' Transp. Co. , 135 Mass. 283 0883). 3. If A., fraudulently assuming the name of a reputable merchant in a certain town, buys, in person, goods of another, the property in the goods passes to A., and the seller can- not maintain an action against a common carrier, to whom the carriage of the goods is entrusted, for delivering them to A. Ed- munds V. Merchants' Transp. Co., 135 Mass. 283 (1883). See also Bill of Lading. IV. Liability as Warehouseman. See Agent, VII. ; Bill op Lading. V. Successive Caeriees. An agreement between two railroad cor- porations, that any injury to persons or goods shall be paid for by the corporation on whose road it may occur, and that, when the damage cannot be traced to either of the corporations, it shall be paid for by each in the proportion it shares in the through price of carriage, does not make the two corporations partners ; if one corporation has made a contract for the carriage of goods over the roads of both cor- porations, an action for breach of such con- tract cannot be maintained against the other corporation, if the loss is not proved to have taken place while the goods were in its cus- tody; and the contract between the two cor- porations is inadmissible in evidence. Aigen V, Boston §■ Maine Railroad, 132 Mass. 423 (1882). VI. Freight, Xnd Lien therefor. 1. The delivery, by a common earner, to a consignee, of a part of the goods transported without- payment of freight and advances, does not discharge the lien of the carrier upon the remainder of the goods for the whole amount of charges, unless such was the intention of the pai'ties; and, ordinarily, this is a question of fact for the jury. New Haven If Northamp- ton Co. V. Campbell, 128 Mass. 104 (1880). 2. Without proof of such intention, the lien is not discharged by the delivety of part of the goods, even as against the right of the consignor to stop in transitu the goods not de- livered. Potts V. New York If New England Railroad, 131 Mass. 435 (1881). 3. A carrier, having a lien for fi-eight upon an entire cargo of coal, delivered a portion of it, on the order of the consignee, to a person who had purchased the whole cargo from the consignee. Subsequently, the carrier, on the arrival of the remainder of the coal, notified the purchaser that he claimed a lien on the remainder for the, freight of the entire cargo, and ordered him not to disturb or unload it. The purchaser, without right, appropriated the remainder of the coal to his own use. Held, that the fact of such taking did not, of itself, as matter of law, import a promise on the part of the purchaser to pay to the carrier the freight of the entire cargo, and that noth- ing in the opinion in New Haven Sf Northampton Co. V. Campbell, 128 Mass. 104 (1880), was in- tended to imply the contrary. N. Y. Sf N. Eng- land Railroad v. Sanders, 134 Mass. 53 (1883). Vll. Passenger Carriers. See Railroad. 1. A., a student over twenty years of age, paid to a railroad corporation the regular price of a season ticket entitling him to transporta- tion over its road, between two stations, for three months. The directors of the corpora- tion had authorized its president, upon special application, and in his discretion, to allow season tickets to be sold to students over twenty years of age, for the same term, be- tween the same stations, for one half the price A. paid, and such tickets had been sold. Held, in an action by A. to recover of the corporation one half of the amount paid by him, that there was no violation of St. 1874, c. 372, § 138, which requires railroad corpora- tions to give to all persons reasonable and equal terms, facilities, and accommodations; that the requirement of this section, which is re-enacted from St. 1867, c. 339, is to be con- strued in the light of the decision in Fitchburg Railroad v. Gage, 12 Gray, 393 (1859), and the words " reasonable and equal terms " are not to be taken as used in a strict literal sense, and that the action could not be main- tained. Spofford V. Boston Sf Maine Railroad, 128 Mass. 326 (1880). 2. A regulation of a railroad corporation, that a passenger who shall purchase a ticket before entering its cars shall be entitled to a discount from the advertised rates of fare, but, if such ticket is not pui-chased, the full rate of fare shall be charged, is a reasonable regulation, and does not violate a rule pre- scribed by statute, that the rates of fare shall 171 CARRIER, VII. 172 be the same for all persons between the same points. Swan v. Manchester §• Lawrence Rail- road, 132 Mass. 116 (1882). 3. If a railroad corporation advertises to carry passengers purchasing tickets at a less . rate than the regular fare, it is not bound to keep its ticket office at a particular station open after the time when a train of cars is advertised to leave that station ; and if a per- son arrives after that time, and enters the train without a ticket, he may, in accordance with the I'egulations of the corporation, be ex- pelled for refusing to pay full fare, although he was unable to procure a ticket in conse- quence of the ticket office being closed. Swan V. Manchester Ij- Lawrence Railroad, 132 Mass. 116 (1882). 4. A passenger who enters a railroad car at one station, and is properly expelled from it, for non-payment of his fare, at a second sta- tion, is not entitled to be carried to a third station by the same train of cars, by tendering the fare between the second and third stations. Swan V. Manchester §• Lawrence Railroad, 132 Mass. 116 (1882). 5. A passenger on the train approaching the station to which he was going, which was a flag station, and at which the conductor had promised him to stop the train, left his seat and tried to make his way to the door of the car, in order to leave the train at the station. It was a day of great public excitement, and the train, which was a very long one, was overloaded with people, who filled all the seats, passageways, and platforms, and even occupied the roofs of the cars. The train did not come to a full stop on reaching the station, and the passenger, in making his way through the crowd, reached the platform, and, in the sur- ging of the crowd, fell, or was pushed out on the platform and down the steps of the car; and, after holding on with one hand for a short distance, he finally fell to the ground and was injured. Held, in an action by him against the railroad corporation, that whether the plaintifi was in the exei-cise of due care, and whether the defendant negligently and improperly managed its train so that the plain- tiff's injury was caused thereby, were ques- tions which should have been submitted to the jury. Treat v. Boston §• Lowell Railroad. 131 Mass. 371 (1881). 6. A passenger, who receives an injury by falling from the front platform of a street railway car while in motion, upon which he occupies a sitting position, against the rules of the corporation and the warning of the driver of the car, and without any reasonable excuse thei-efor, is not in the exercise of such care as will entitle him to maintain an action against the corporation. Wills v. Lynn Sj" Boston Railroad, 129 Mass. 351 (1880). 7. It is a reasonable regulation of a street railway corporation, which it has the right to make, that passengers shall not be on the front platform of a car. Wills v. Lynn §• Boston Railroad, 129 Mass. 351 (1880). 8. A passenger in a street car, after signal- ling to the conductor to stop the car, left his seat, and stood for a moment, while the car was in motion, on the rear platform, upon which there was an accumulation of snow and ice, rendering the platform slippery, expecting that the car would stop so that he could alight, and omitted to take hold of the rail. The car jolted, and he was thrown off. Held, that whether he was guilty of such negligence as to preclude his maintaining an action for the injuries thereby received, was a question of fact for the jury, and that the judge should not have directed a verdict for the defendant. Fleck V. Union Railway, 134 Mass. 480 (1883). 9. At the trial of an action of contract for a breach of the agreement of a railroad cor- poration to carry the plaintiff as a passenger on its railroad from S. to N., it appeared that he bought a ticket at S. which entitled him to be carried to N. ; that the defendant's con- ductor refused to receive the ticket, and, when the train arrived at an intermediate station, the conductor, who was a railroad police officer, arrested the plaintiff for evading his fare, and delivered him into the custody of two police officers, who detained him during the night in the place provided for arrested persons. Held, that the detention of the plaintiff during the night, his discomforts in the place of detention, illness produced by the dampness of the cell in which he was confined, and the indignities which he suffered at the hands of the police officers, were not elements of damage which he could recover in this ac- tion, and that the court, in ruling otherwise, had overlooked the distinction between the rules of damages applicable in actions of con- tract and in actions of tort. Murdoch v. Boston Sj- Albany Railroad, 133 Mass. 15 (1882). 10. St. 1877, c. 232, enacting that the pro- visions of Gen. Sts. c. 84, § 2, "prohibiting travelling on the Lord's day, shall not con- stitute a defence to an action against a com- mon carrier of passengers for any tort or injury suffered by a person so travelling," does not apply to an action brought after it went into effect for an injury received before its enact- ment. Bucher v. Fitchburg Railroad, 131 Mass. 156 (1881). 11. In an action against a corporation own- ing a ferry-boat, for personal injuries occa- sioned to a passenger, who, while standing, with others, in the passageway leading from the cabin to a gate near the end of the boat, while it was approaching the wharf, was, by a sudden movement of the crowd, pressed against the gate while it was being lifted, it is no defence that it was lifted by an un- authorized person, if passengers were exposed to danger by the lifting of the gate, and the gate was not fastened, and there was no ser- vant of the corporation there to attend to it. Peverly v. Boston, 136 Mass. 366 (1884). 12. In an action against a corporation own- ing a ferry-boat, for personal injuries occa- sioned to a passenger, who, while standing, with others, in the passageway leading from the cabin to a gate near the end of the boat, while it was approaching the wharf, was, by a sudden movement of the crowd, pressed against the gate, which was lifted by an un- authorized person, no servant of the corpora- 173 CARRIER, VIII., IX, 174 tion being there to attend to the gate, evidence is inadmissible in defence, that the boat never had approached the whariE before without a deck-hand at the bow of the boat; and that no accident ever had, happened before by the raising of the gate or by the pressing of pas- sengers against it. Peverly v. Boston, 136 Mass. 366 (1884). 18. In an action against a sleeping car com- pany for the loss of a passenger's property by theft, the evidence tended to show that tlie property of two passengers in one car was stolen from their berths during the same night; that the porter of the car was found asleep at an early hour of the morning in a .position from which no view could be had of that part of the car in which the passengers were asleep ; and that the porter was required to be on duty for thirty-six hours continuously, which included two nights. Held, that there was evidence of negligence on the part of the defendant proper to be submitted to the jury. Whitney v. Pullman's Palace Car Co., 143 Mass. 243 (1887). 14. A sleeping car company is bound to use reasonable care to guard from theft the property of a passenger occupying a berth in a car, and if, through want of such care, such personal effects of a passenger as he may rea- sonably carry with him are stolen, the com- pany is liable for the loss ; and the company cannot avoid its liability by posting in the car a notice disclaiming responsibility for personal property in berths, if the notice is not known to the passenger. Lewis v. New York Sleeping Car Co., 143 Mass. 267 (1887). As to whether the plaintiff in a suit brought while the provisions of Gen. Sts. c. 84, § 2, were operative, to recover damages for injuries sustained while travelling on the Lord's day, was travelling from necessity or charity, see Loed's Day. VIII. Carriers op Animals. See Railroad. Cows belonging to A. were delivered to a common carrier by an agent of A., who was employed to attend to the care and transpor- tation of the cattle, and who signed an agree- ment for their transportation by railroad, in which the value of each cow was estimated at a certain sum, and which provided that the owner of the cows should assume all risk of loss or damage from any cause except from collision of trains, in which case the carrier should not be held liable for a greater sum than that specified in the agreement; that the rates for transportation were based upon and intended only for cows of the value specified; and that an additional rate would be charged for cows of greater value. One of the cows was killed by the negligence of the carrier, and not by a collision of trains. Held, in an action by A. against the carrier, that he could recover only the value of the cow as expressed in the agreement ; and that he was bound by the agreement made by his agent. Hill v. Boston, Hoosac Tunnel, ^ Western Railroad, 144 Mass. 284 (1887). IX. Indictment for Homicide. 1. A passenger on a railroad left the train after the conductor had called out the name of the station to which he was entitled to be carried, and the car in which he was had passed the station, and had almost stopped; and, while crossing to the station, was killed by a locomotive engine on a parallel track, the approach of which he might have seen had he looked before leaving the train. Held, on an indictment against the railroad corporation, under St. 1874, c. 372, § 163, that, if an in- dictment would lie for the death of a passen- ger not in the exercise of due care, the person killed ceased to be a passenger by leaving the train while in motion. Commonwealth v. Boston §• AJaine Railroad, 129 Mass. 600 (1880). _ 2. It is no defence to an indictment against a railroad corporation, under St. 1874, c. 372, § 163, for causing the death of a passenger, that the passenger was not in the exercise of due care. Commonwealth v. Boston If Lowell Railroad, 134 Mass. 211 (1883). 3. St. 1874, c. 372, § 164, is not limited to cases of injury which do not result in death, but applies as well to cases of loss of life. Commonwealth v. Boston §• Maine Railroad, 133 Mass. 383 (1882). 4. A railroad corporation is responsible, under St. 1874, c. 372, § 164, for the neglect of its servants to give the signals required by § 123, when crossing a way at the same level. Commonwealth v. Boston Sf Maine Railroad, 133 Mass. 383 (1882). 5. An indictment against a railroad corpo- ration, under St. 1874, c. 372, § 163, alleged that at a certain place the railroad crossed a highway upon the same level; that one S. was travelling on the highway and in the exercise of due diligence; that a locomotive engine attached to a freight train was passing the place of intersection; that a locomotive engine was coming in the opposite direction; that while the corporation was thus running the last-named locomotive, it was the duty of the corporation, when approaching said place of intersection, in view of the position of said first-named locomotive and train of ears, to reduce its rate of speed and give proper sig- nals and warnings; but that the corporation neglected to do so, and with said last-named engine ran over and killed said S. Held, that the negligence alleged was that of the ser- vants of the corporation, and not of the cor- poration itself, and that the indictment was insufficient. Held, also, that the objections to the indictment were not for formal defects apparent on the face thereof, within St. 1864, c. 250, § 2, and could be taken after the jury had been sworn. Commomeealth v. Boston Sf Maine Railroad, 133 Mass. 388 (1882). 6. An indictment, under Gen. Sts. c. 160, § 34, against a carrier of passengers on a steamboat, to recover the penalty therein pro- vided for the loss of the life of a passenger, alleged that, by the negligence of the defend- ant, the boat was permitted to be defective and unsafe, and furnished with a hurricane 175 CASE STATED. 176 deck which endangered the safety of said boat and of passengers thereon ; and that by the negligence of the defendant Said deck was suffered to be and was overloaded with pas- sengers, and an undue number of passengers, in view of the whole number on the boat, was allowed to go, be, and remain on said hurri- cane deck, by reason of which said deck was torn ofE and a certain passenger killed. The evidence tended to show that the deck when fully loaded was insufficiently built and un- safe, and that the accident was caused by a crowd coming on board, without proper re- straint, from the wharf at which the boat was lying at the time. Held, that it was not necessary to allege in the indictment the evi- dence which tended to support the charge of negligence, or to allege the specific acts the neglect to do which constituted the negligence alleged. Commonwealth v. Coburn, 132 Mass. 555 (1882). 7. On an indictment, under Gen. Sts. c. 160, § 34, against a carrier of passengers to recover the penalty therein provided in case the life of a passenger is lost through the negligence of the carrier or that of his servants, the defend- ant is not entitled to a ruling that, if the loss of life was caused by the improper conduct of third persons, and the accident would not have happened without such improper con- duct, the defendant cannot be convicted, al- though it may not appear that the defendant or his servants did all that could be done to restrain such improper conduct. Common- wealth V. Coburn, 132 Mass. 555 (1882). 8. An indictment for manslaughter alleged that the defendant was a conductor, in the employ of a certain railroad corporation, in charge of a freight train, which had been run over the outward track of the corporation to a certain place, under his direction ; that the corporation had established certain rules in regard to the crossing of the inward track by trains on the outward track, which rules were then in force and known to the defendant; that it was the defendant's duty not to con- duct his train from the outward track across the inward track, without first sending for- ward the proper signal to warn the driver of any approaching train on the inward track that he could not safely pass without stop- ping; that the defendant, knowing that a train on the inward track was then due and approaching, wilfully, and in a wanton, neg- ligent, and improper manner, and while the train on the inward track was then approach- ing and due, drove his own engine across the inward track to a side track, and attached to it certain cai"s, and again crossed the inward track to the outward track, leaving the switch out of line so as to disconnect the rails upon the inward track, without first sending for- ward any signal to warn the driver of the approaching train, in accordance with the rules of the corporation ; that, by means of the premises and the felonious neglect and omission of the defendant, the driver of the approaching train did not stop, but continued on his course, and by reason of the misplace- ment of the switch the train was thrown from the track and a passenger killed. Held, that the allegation of the defendant's knowledge of the approach of the train on the inward track was a material allegation, and must be proved as laid. Commonwealth v. Hartwell, 128 Mass. 415 (1880). CASE STATED. 1. On a complaint under the mill act, the parties submitted the case to the Superior Court, and to this court, on appeal, after a judgment for the respondent, on an agreed statement of facts, which concluded as fol- lows: "The parties hereto admit the fore- going facts for the purpose of raising the preliminary question of law arising thereon; and the facts so admitted are not to be used by either party, without proof of the same, at any trial of this or any other cause." Held, that this meant that the facts agreed were to be passed upon by the court as if the com- plainant had made an offer of proof, and the Superior Court had ruled that, if proved, they would not warrant proceedings for the assess- ment of damages by a jury ; and that, so con- strued, the court might pass upon the question presented. Campbell v. Talbot, 132 Mass. 174 (1882). 2. A writ of entry against a mortgagee of land, to which the plea was nul disseisin, was submitted to the court on agreed facts, which set forth the respective titles of the parties and stated that the mortgagee had never taken possession of the demanded premises, although there had been a breach of condition. Held, that the fact that the tenant was not in pos- session was not decisive ; that the pleadings put in issue only the demandant's title; that, the case having been submitted on an agreed statement of facts, it might be decided on the merits; and that the only question open was whether the demandant could recover against the tenant in any form of action. Cleaveland V. Boston Five Cents Savings Bank, 129 Mass. 27 (1880). 3. A point which does not appear to have been intended to be raised, on an agreed statement of facts submitted to the Superior Court, will not be considered by this court on appeal. Fitzsimmons v. Carroll, 128 Mass. 401 (1880). 4. If a case is submitted on agreed facts, all questions of pleading are waived, and the case is to be determined on its merits, upon the facts agreed, as if the questions relating to them Were presented upon proper pleadings; and a matter which can be taken advantage of in pleading by plea in abatement only is not open in a case so submitted, unless spe- cially reserved. Fay v. Duggan, 135 Mass. 242 (1888). 5. An action by a common carrier against the consignee of goods, for the amount of freight charges, was submitted to the Superior Court upon an agreed statement of facts, which showed that the consig^nee ordered the goods of the consignor at a certain price-, 177 CERTIORARI. 178 deliverable at L. ; that the consignor marked the goods, " Collect freight charges at other end;" and that the goods were delivered to the consignee at L. without a demand by the carrier for the amount of such charges, and without an express promise by the consignee to pay them; but did not show whether the consignee accepted the goods, knowing that the carrier looked to him for the payment of the freight. Held, that the case stated was imperfect, in failing to state a vital fact, and should be discharged. Old Colony Railroad v. Wilder, 137 Mass. 536 (1884). 6. If a case is submitted to the Superior Court or to this court on agreed facts, infer- ences of fact cannot be drawn by the court, unless, as matter of law, they are necessary inferences. Mayhem v. Durfee, 138 Mass. 584 (1885). 7. An action on a poor debtor's recogni- zance was submitted to the court on agreed facts, which set forth a notice, in due form, to the JTidgment creditor, a return of the offi- cer that he had served an attested copy of the same, and the discharge of the debtor by the magistrate, the creditor not appearing. The agreed facts further set forth that the copy served upon the creditor did not state the time fixed for the examination of the debtor ; and concluded with the statement, that if, upon the foregoing facts, the court was of opinion that there had been a breach of the recognizance, judgment was to be entered for the plaintiff ; otherwise, for the defendant. Held, that the conclusiveness of the officer's return was not to be considered as waived by the agreed facts. Lowery v. Caldwell, 139 Mass. 88 (1885). 8. In a trustee process, an agreed statement of facts, upon the question whether a claim- ant has a valid assignment of the funds in the hands of the trustee, need not be signed by the trustee, Segee v. Dowries, 143 Mass. 240 (1887). CASES OVERRULED, Etc. Omitted, as in the former Digest, because superseded by Williams's Massachusetts Cita- tions. CEMETERY. See Burial. CERTIORARI. See also Board op Health; Park; Sewer; Way. 1. Certiorari does not lie to quash the pro- ceedings of a police court in issuing a warrant for the seizure of intoxicating liquors; such proceedings are according to the course and principles of the common law, and may be the subject of appeal or exceptions, or, in a proper case, of a writ of error. Lynch v. Crosby, 134 Mass. 313 (1883). 2. Whether objections to the regularity of the petition and warrant for a sheriff's jury, to assess damages for the taking of land for a highway, can be taken otherwise than by ap- plication for a writ of certiorari, — qucere. Warner v. Franklin, 131 Mass. 348 (1881). &. If the petition for a writ of certiorari to quash an order of the board of mayor and aldermen of a city sets forth the record and alleges extrinsic facts, the respondents may in their answer controvert such facts or allege other facts which avoid their effect, although the persons composing the board at the time the order was passed and when the answer is made are not the same, if such facts must have been passed upon in passing the order, and are within the knowledge of the persons making the answer. Fairbanks v. Fitchburg, 132 Mass. 42 (1882). 4. An answer to a petition for a writ of certiorari should state facts, and not matters which the respondents deem will occur; but such an irregularity affords no ground for granting the writ, if, after such averments are struck out, the answer discloses sufficient grounds for dismissing the petition. Fair- banks V. Fitchburg, 132 Mass, 42 (1882). 5. It is no ground for a writ of certiorari to quash an assessment levied for expenses incurred under the St. of 1868, u. 160, that the expenses were not assessed proportionally upon all persons benefited, or that items were included in the expenses which ought to have been excluded. Grace v. Newton Board of Health, 135 Mass. 490 (1883). 6. On a petition for a writ of certiorari to quash the proceedings of the board of health of a city in assessing the benefits accruing to any person by the abatement of a nuisance under the St. of 1868, c. 160, the respondent's answer alleged that the assessments were made upon the petitioners as owners of certain par- cels of land described in a schedule, and the same were exhibited upon a plan, which suffi- ciently described the premises, and was used in making the assessments. At the hearing it appeared that the schedule was made after the petition was brought; and that the plan was sufficient to identify each lot. Held, that if the assessment was not sufficiently specific for want of a description of the land benefited, it was competent for the board to amend its record, and that the schedule might be con- sidered as such an amendment. Grace v. New- ton Board of Health, 135 Mass. 490 (1883). 7. Objections to the proceedings of the city council of a city, in passing an order for spe- cific repairs, under the Gen. Sts. c. 43, § 59, consisting in the changing of the grade of a street, on account of a failure to give proper notices, cannot be taken by an abutter on the street, upon a petition to the Superior Court for a jury to assess the damages occasioned to his property by work done under the order, but only upon a petition for a writ of cer- tiorari. Sisson V. New Bedford, 137 Mass. 255 (1884). . 179 CHARITABLE ASSOCIATION. 180 8. If a petition for a writ of certiorari to be issued to a city council is reserved by a single justice of this court for the consideration of the full court, upon the petition and answer, and the report of certain evidence, the allega- tions of the answer in matters of fact are to be taken as true except so far as they are con- trolled by the evidence reported. Dickinson V. Worcester, 138 Mass. 555 (1885). 9. If the proceedings of an inferior court are erroneous only in awarding costs, this part of the proceedings only will be ordered to be quashed on a petition for a writ of certiorari. Young v. Btaisdell, 138 Mass. 344 (1885). 10. Certiorari does not lie to quash the pro- ceedings of the municipal authorities of a city in appointing a police officer, in alleged viola- tion of the rules established by the St. of 1884, c. 320, for the improvement of the civil ser- vice of the Commonwealth. Attorney-General V. Mayor §■ Aldermen of Northampton, 148 Mass. 589 (1887). 11. In an action against a city to recover the amount of a betterment tax assessed for improvements on a street in the city, and paid under protest, the orders passed by the city council for the improvements- cannot be im- peached for alleged defects in the notices pre- ceding them; but such defects can be availed of by certiorari only. Foley v. Haverhill, 144 Mass. 352 (1887). CHALLENGE. See Jury. CHAMPERTY AND MAINTENANCE. See also Contract. 1. An agreement is not champertons and illegal, by which an action, by the grantor in a deed of land against his grantee, upon the latter's promise therein to pay a mortgage on the land, is prosecuted at the expense and for the benefit of a person to whom the mortgage had been assigned, and who had sold the land under a power therein, and brought an action on the note secured thereby against the grantor, and summoned the grantee as trus- tee, in which the grantor was defaulted upon payment of a sum of money and promise of a further sum when collected of the grantee in the action against him. Williams v. Fowle, 132 Mass. 385 (1882). 2. An agreement between an attorney and client, by which the attorney is to prosecute an action for a sum of money in which he has himself no previous interest, and to receive, in case of success, one half of the sum recov- ered after deducting the costs of the action, and nothing in case of failure, is unlawful and void for champerty and maintenance; and the client may maintain an action for money had and received against the attorney for the whole amount so recovered, less the costs paid by him. Ackert v. Barker, 131 Mass. 436 (1881). 3. A. executed two instruments, which pur- ported to assign to B., an attorney at law, one half of A.'s interest in the estate of C, and to authorize B. to prosecute A.'s claim against the estate, and receive the sum recovered ; and provided that A. should be saved harmless from all costs and charges if B. was unsuc- cessful in establishing the claim, and, if he was successful, that the amount of the cash expenses should be deducted from the sum recovered and be retained by B., and the re- mainder be divided equally between A. and B. Held, on a bill in equity by A. against B. to compel the delivery for cancellation of the instruments, that the agreements were cham- pertous ; and that the parties were not in pari delicto. Bdding v. Smythe, 188 Mass. 530 (1885). 4. B., who was a domestic servant and had no means except her wages, hearing that her father, who had been a stranger to his family for years, had died in another State, leaving property there, consulted A., an attorney at law, in regard to recovering it, and gave him a power of attorney to collect her share of it. A. orally agreed with her to take charge of her case upon the terms that she should fur- nish money for all actual expenses, and that, in the event of success, he should charge more for his services than if he was sure of his pay in the outset; and A. rendered services un- der this agreement. Subsequently, a written agreement was signed by B., which recited that she had retained A. and authorized him to retain counsel in the other State, and that " said counsel and attorney are to depend upon the contingency of success for the fees for all services rendered" in the case; and agreed that A. and the counsel so employed " shall in view of the uncertainty of the result in their payment be entitled to .very large and liberal fees, in no event to exceed fifty per cent of the amount collected by them." Afterwards B., without notice to A., employed other coun- sel, and, on trial, recovered a certain sum. Held, in an action by A. against B. to recover for his services, that the contract under which they were rendered was not void for champerty or maintenance. Blaisdell v. Ahem, 144 Mass. 893 (1887). CHANCERY. See Equity. CHARACTER. See Damages; Evidence; Libel; Witness. CHARITABLE ASSOCIATION. See Beneficiary Association. 181 CHARITY AND CHARITABLE USES. 182 CHARITY AND CHARITABLE USES. See also Devise; Information; Trust. 1. A devise in trust "to assist, relieve, and benefit poor and necessitous persons, and to assist and co-operate with any such charitable, benevolent, religious, literary, and scientific societies aud associations, or any or either of them, as shall appear to the trustees best to deserve such assistance or co-operation," is a valid charitable devise. Suier v. Hilliard, 132 Mass. 412 (1882). 2. A testator by his will authorized a per- son named to withdraw a sum of money from a savings bank, "said money to be disposed of as follows: part for my burial and funeral expenses, and the residue for charitable pur- poses, masses, etc." Held, that the will cre- ated a valid trust " for charitable purposes, masses, or other charitable uses," and that, the nominee having died without qualifying as trustee, the court might appoint a successor who should administer the trust according to the directions of the will. Schouler, petitioner, 131 Mass. 426 (1883). 8. A provision in a wiU, establishing a fund for the preservation, adornment, and repair of a private monumental structure, creates a per- petuity for a use not charitable, and is void. Bates V. Bates, 134 Mass. 110 (1883). 4. A devise to the missionary cause of the Methodist Episcopal Church is sufficiently defi- nite to constitute a valid device for charitable purposes. Missionary Society v. Chapman, 128 Mass. 265 (1880). 5. A will, after several bequests to indi- viduals and to charitable corporations, con- tained the following clause : " After the payment of the foregoing legacies, and all expenses and charges in the settlement of my estate, should there be any surplus, I give and bequeath the same to my executors and the survivor of them, or their successors, if any such should be appointed to administer on my estate, to be by them distributed tq such persons, societies, or institutions as they may consider most deserving. ' ' By a separate clause two persons were appointed executors. Held, that the terms of this bequest clearly manifested the intention of the testatrix to create a trust; that the executors therefore took the bequest in trust ; but that the trust was too indefinite to be sustained as acharity; and that therefore the next of kin took by way of resulting trust. Nichols v. Allen, 130 Mass. 211 (1881). 6. So where a testator devised property to A., "to distribute the same in such manner as in his discretion shall appear best calcu- lated to carry out wishes which I have ex- pressed to him, or may express to him," — Held, that the trust, on its face, was too in- definite to be carried out, and that it could not be established by evidence of oral com- munications made by the testator to A., whether before or after the execution of the will, showing that the trust was for charita- ble purposes, and that the heirs or next of kin took by way of resulting trust. Olliffe v. Wells, 130' Mass. 221 (1881). 7. The late George Peabody, by deed of trust, gave to certain persons named as trus- tees a large sura of money, to be by them and their successors held in trust to found aud maintain a museum of archaeology and eth- nology in connection with Harvard College. A portion of the sum was to be invested by the trustees, and the income applied to form- ing and preserving a collection of antiquities; the income of another portion was to be ap- plied to the establishment and maintenance of a professorship of archseology and ethnology in the college; the trustees were directed to keep a record of their doings, and annually to make a report to the president and fellows of the college, setting forth the condition of the trust, and the amount of income received and paid out; provision was made for filling vacancies in the board of trustees, and per- mission was given to obtain an act of incor- poration; the trustees were authorized to appoint a treasurer, and to enter into any arrangements and agreements with the college, not inconsistent with the terms of the trust, which might, in their opinion, be expedient. An agreement was proposed subsequently to be made between the trustees and the college, by which the trust funds were to be invested and managed by the college as a part of its general fund, subject only to the right of the trustees to demand and receive the income; the college to invest the funds as it should see fit, and not to be responsible for any loss. Held, on a bill in equity by the trustees for instructions, that the proposed agreement was inconsistent with the terms of the trust; and that the facts that the treasui-er of the trustees, who had served without compensation, was about to resign, that by the plan proposed the funds would be managed without expense, and that another treasurer could not other- wise be secured without great expense, did not present a caseof such exigency as to warrant the sanction of the court to the agreement. Win- Ihrop V. Attorney General, 128 Mass. 258 (1880). 8. A bequest to a missionary society, ' ' to aid in propagating the Holy religion of Jesus Christ," is a good charitable bequest. Hinck- ley v. Thatcher, 139 Mass. 477 (1885). 9. A devise in a will of certain property of the testator to two persons named, "their, heirs and assigns forever, and to the survivor of them and his heirs foi-ever, in trust, to sell, dispose of, invest, and manage the same, and appropriate such part of the principal and in- terest as they may deem be.st, for the aid and support of those of my children and their de- scendants who may be destitute, and in the opinion of said trustees need such aid," cannot be upheld as a public charity, and is invalid. Kent V. Dunham, 142 Mass. 216 (1886). 10. A conveyance of land, " in trust for the uses of a Sabbath school and for the diffusion of Christian principles as taught and practised by Christian Evangelical de- nominations, with power to erect, repair, and renew from time to time all buildings neces- sary to carry out the object and purposes of the trust," constitutes a public charity. Mor- ville V. Fowle, 144 Mass. 109 (1887). 183 CITY. 184 CHARTER-PARTY. See Ship. CHATTEL MORTGAGE See Mortgage, IV. CHEATING. See Conspiracy; False Pretences; Fraud. CHECK. See also Bank. 1. A depositor in a bank drew his check upon the bank for a certain amount payable to the order of a person named. The clerk of the depositor erased the name of the payee and obtained the money on the check from the bank. On the first of the following mouth the bank returned this check among others to the depositor, and sent him a monthly state- ment which included this check as paid; and after another monthly statement the deposi- tor drew from the bank the balance remaining according to these statements; and made no objection to the payment of the check in ques- tion until twenty-three months after such payment. Held, in an action by the deposi- tor against the bank to recover the amount of the check, that the defendant was not en- titled to a ruling, as matter of law, that if the plaintiff did not, after a reasonable opportu- nity to examine the cheeks returned, object to the payment of the check in question, he would be presumed to have ratified it; but that the question of ratification was for the jury ; that the plaintiff was bound to use due diligence in discovering the forgery, and was affected by the knowledge which his clerk had, who committed the forgery and whose duty it was to examine the checks returned by the bank. Dana v. Bank of the Republic, 132 Mass. 156 (1882). 2. On the issue whether a depositor in a bank has ratified the payment by the bank of a check, drawn payable to the order of a per- son named and fraudulently altered by erasing the name of the payee, evidence that the bank had previously paid checks of the depositor showing upon their face alterations in the name of the payee is inadmissible. Dana v. Bank of the Republic, 132 Mass. 156 (1882). 3. The maker of a check, obtained from him by fraud, and payable to an existing firm, is not liable to an innocent indorsee holding the check under a forged indorsement of the payee's name. Rowe v. Putnam, 131 Mass. 281 (1881). 4. If a check made in this Commonwealth, and payable to a resident of another State, is deposited by him in a bank there, where he has a general account, under an agreement that all checks drawn on banks in other places shall be passed to his credit on the day of deposit, but, if they are returned unpaid, they shall be charged to his account, and by the law of that State the bank is not his agent in collecting the check, but becomes the owner of it, with the right of charging it back to his account if it is not paid by the bank on which it is drawn, the receiver of the bank, which sus- pends business on the day of such deposit, may maintain an action for the amount of the check against the maker, who cannot avail himself, in defence, of the fact that, upon such suspension, the payee of the check stopped payment of the same. Brooks v. Bigetow, 142 Mass. 6 (1886). CHIEF OF POLICE. An information by the Attorney General in the name and behalf of the Commonwealth is the proper process to oust one who holds de facto, and not de jure, the office of city chief of police of New Bedford, an office which is vacated only by the death, resigna- tion, or removal of the incumbent. Common- wealth V. Allen, 128 Mass. 308 (1880). CHILD. See Adoption ; Bastardy ; Devise ; Infant. Effect of not naming in Will, see Descent; Will. Negligence of, see Negligence. Right and duties of parent, see Parent; Seduction. CHURCH. See Parish. CIRCUIT COURT OF THE UNITED STATES. See Removal of Suits. CIRCUITY. See Recoupment. CITY. See Town. 185 COLLATERAL SECURITY. 186 CITY PHYSICIAN. 1. Under St. 1877, c. 133, which fji-ovides that in each of the cities of the Common- wealth, except Boston, the mayor and alder- men shall appoint two persons " who together with the city physician shall constitute the board of health of such city," and under St. 1878, c. 21, which provides that, "in the cities of the Commonwealth where the city physician is ex officio a member of the board of health, said city physician shall be ap- pointed by the mayor, with the approval of the board of aldermen, for a term of three years," the office of city physician is estab- lished in a city whose charter and ordinances make no provision in terms for such an office. Commonwealth v. Swasey, 133 Mass. 538 (1882). 2. Where a city physician is ex officio a mem- ber of the board of health, which is invested with important powers to be exercised for the safety and health of the people, he is a pub- lic officer, and his title to his office may be tried by an information in the nature of a quo warranto. Commonwealth v. Swasey, 133 Mass. 538 (1882). CIVIL SERVICE. See Certiokaki; Constitutional Law. CLOUD UPON TITLE. See Damages; Equity; Husband and Wife; Tax. CODICIL. See Devise; Will. COLLATERAL SECURITY. See also Agent ; Bank ; Bankruptcy ; Bill op Lading; Insolvency; Mortgage; Pledge; Surety; Trust. Of Bills and Notes given as collateral se- curity, see Bills and Notes, IX. 1. The plaintiif delivered to the defend- ant two certificates of a number of shares of stock in each of two corporations as col- lateral security for the payment of a debt, " with authority to sell the same without notice, either at public or private sale, or at brokers' board, at the option of the holder or holders hereof, on the non-performance of this promise, he or they giving me credit for any balance of the net proceeds of such sale re- maining after paying all sums due from me to the said holder or holders." Held, in an action for loss occasioned by the defendant's negligence in the sale of the stock, that, un- der the authority given him, the defendant had the right, on the non-performance of the plaintiff's promise, to sell either certificate of stock, or both if the proceeds of the sale of one did not satisfy the debt, and was not [bound to divide either certificate into small lots, or to sell the stock immediately on de- fault, or to postpone the right to sell if the stock was then depreciated in value; and that an instruction to the jury that the defendant " must use the same care, prudence, and dili- gence in the sale of it that a prudent man would in the sale of his own property," was erroneous. Newsome v. Dads, 133 Mass. 343 (1882). 2. A number of persons associated them- selves together to purchase of a corporation a large parcel of flats. As part of the consider- ation , the flats were to be filled by the cor- poration within seven months. The convey- ance was made to trustees of the associates; and the interests of the latter were divided into shares, and the trustees issued to each associate a certificate of the number of shai'es belonging to him. Each associate paid to the corporation in money ten per cent of his pro- portion of the entire consideration, and exe- cuted to the corporation his personal bond for the payment of the remaining ninety per cent of his proportion, payable one half in two years and one half in three years, with interest semiannually, and transferred to the corpora- tion his certificate of shares, as collateral security for the payment of the bond. The bond also contained a clause, by which it was agreed that the whole or any part of it might be paid, when interest was payable, and that when paid either by advance payments, or by the regular payment of instalments, the shares pledged should be released. By the terms of the transfer, the corporation was authorized to receive any dividends which might be made by the trustees, and, on payment of the bond " by said dividends or otherwise," the certifi- cate was to be reassigned to the owner. Each certificate contained this clause: " Said share is transferable by assignment in writing on this certificate, recorded on the books of the trustees, and not otherwise, except when the share is pledged ; in which case the interest of the general owner therein may be assigned in writing, approved by the trustees, and recorded in the books." By the terms of a declaration of trust, the trustees were to manage and dis- pose of the property from time to time, and to divide the net proceeds of sales among the general owners of the shares at the time of declaring dividends, or as such owners might order in any assignment of their shares as col- lateral security; and that, unless expressly provided in the instrument creating the pledge, the pledgor should alone be entitled to vote or to receive dividends. Held, on a bill in equity, that the corporation, taking one of these cer- tificates as collateral security for the payment of a bond, was not obliged to hold it until paid by dividends arising from the proceeds of the sale of the land, but was entitled, upon defg,ult in payment of the bond, to foreclose 187 COLLATERAL SECURITY. 188 the pledge by a sale of the certificate. Mer- chants^ Bank v. Thompson, 133 Mass. 482 (1882). 3. A. borrowed $300 of B., and, as collateral security, transferred and delivered to him a note and mortgage for' $1500. The assign- ment of the mortgage was absolute in form, and recited the consideration to be $300. B. transferred the note, before it came due, and assigned the mortgage to C. as collateral security for a loan of $1200. Held, on a bill iu equity brought by A. against B. and C. to redeem the note and mortgage, that the re- cital of the consideration in the assignment of the mortgage to B. was not alone sufficient to put C. on inquiry, or to prove fraud on his part; and that A. could redeem only on pay- ment of the amount for which C. held the note and mortgage as collateral security. Briggs V. Ric&, 130 Mass. 50 (1880). 4. In an action against the indorser of a promissory note, payable at a certain bank, it appeared that the bank lent the maker of the note a sum less than the face of the note on the pledge of it ; that subsequently the maker, while indebted to the bank iu that sum, failed, and the bank procured from him a note for the amount of the loan, payable on demand, containing a clause declaring that the note in suit was held as collateral security for it, and that the bank might sell the collateral note on the non-performance of the promise, either at public or private sale ; and that the second note was afterwards sold and transferred to the plaintiff, the note in suit, held as collateral security for it, being delivered with it to him. The plaintiff, who was called by the defend- ant, testified that he paid the full face value of the note thus bought, knew that the note in suit was collateral security for it, and re- ceived it as such. It also appeared that the plaintiff afterwards sold the note in suit for its full face value to a person who sought to collect its full amount, and who subsequently retransferred it to the plaintiff, The plain- tiff, who now sought to recover only the amount of the loan, asked the judge to instruct the jury that there was no evidence that the bank sold to the plaintiff absolutely the collateral security, or did anything more than to sell to the plaintiff the debt for which it held this security, and the interest of the bank in the collateral security, as such. Held, that this instruction should have been given. Proctor V. Whitcomh, 134 Mass. 428 (1883). 5. The delivery of a savings-bank book, although unaccompanied by a written assign- ment, and with the intention only that it shall be held as collateral security for the payment of a debt, transfers an equitable title to the deposit represented by the book, which will prevail against a subsequent attachment of it by trustee process. Taft v. Bowker, 132 Mass. 277 (1882). 6. If a promissory note to a bank is signed by the maker, as trustee, and a portion of the securities deposited as collateral therefor is clearly marked as trust property, it must be inferred that the other securities, consisting of bonds capable of mavmal delivery, are also trust property. Loring v. Brodie, 134 Mass 453 (1883). 7. A bank is affected with knowledge of its cashier, that securities pledged by the holder were held by him in trust. Loring v. Brodie, 134 Mass. 453 (1883). 8. Two certificates of stock in two corpo- rations, for one thousand shares each, were pledged as collateral security for a debt, the pledgee having the right to sell them, at pub- lic or private sale, if the debt was not paid when due. When the debt was payable, and for some time after, the shares of one of the corporations were worthless, and the shares in the second corporation had no known or uni- form price, and sometimes they could not be sold at any price. Tlie pledgee sold all the shares at private sale for $850. In an action by the pledgor against the pledgee for negli- gence in the sale, the plaintiff was allowed to put in evidence of a sale of one hundred .'hares of the second corporation at $1.37J per share, the day following the sale by the defendant, and a sale of fifty shares of the same stock, thi-ee days later, at $1.12J per share. Hdd, that the defendant had no ground of exception to the admission of this evidence. Newsome V. Davis, 133 Mass. 343 (1882). 9. A promissory note, delivered to a bank, concluded with the statement that the maker had pledged as collateral security certain shares in the capital stock of a corporation, with au- thority to the holder to sell the same " on the non-performance of this promise, he giving me credit for any balance of the net proceeds of such sale, and paying all sums then due from me to said holder." Subsequently the maker assigned all his property to a trustee for the benefit of his creditors. Held, in a suit in equity to compel the redelivery of the shares upon payment of the note, that, even if the trustee had no greater rights than an as- signee in insolvency, the defendant could not, under Gen. Sts. c. 118, § 26, set off other debts due him from the pledgor, at the time the note matured ; nor could it, by way of de- fence, avail itself of the fact that it had applied the shaies in payment of such debts. Hathaway v. Fall River Bank, 131 Mass. 14 (1881). 10. An accommodation indorser of a prom- issory note agreed with the maker that it should be " used " only at a certain bank. That bank, with knowledge of the agreement, allowed the maker to draw, from time to time, sums of money, and retained the note as collateral security. Held, that the bank was entitled to dispose of its claim against the maker, and to transfer the note as collateral security therefor. Proctor v. Whitcomb, 137 Mass. 303 (1884). 11. If a person takes a promissory note given as collateral security for a debt less in amount than the face of the note, with the intent to sell the note for its face value, this does not preclude him from maintaining an action on the note for the amount of the debt. Proctor V. Whitcomb, 137 Mass. 303 (1884). 12. A promissory note, payable in four months, was given to a bank as collateral 189 COMMON NUISANCE. 190 security for money to be advanced from time to time. The bank, after it had advanced certain sums less than the face of the note, on the failure of the maker before the ex- piration of the four months, took from him a demand note, bearing the same date as the collateral note, with a power to sell the col- lateral security, and sold the two notes to a person who had knowledge of these facts. Held, in an action by the purchaser, on the note given as collateral security, to recover the amount advanced and interest, against a per- son who had indorsed the collateral note for the accommodation of the maker, that interest was to be computed from the time the demand note was given, in the absence of evidence that interest on the debt had accrued before that date. Proctor v. Whilcomb, 137 Mass. 303 (1884). 13. Certain shares of stock in a corporation were pledged as collateral security for the pay- ment of a promissory note, with power to sell the same at public or private sale. After the maturity of the note, the payee frequently wrote to the maker, stating that he must sell the stock unless something was paid on the note. About a year and a half after the ma- turity of the note, the payee wrote to the maker that he should sell the stock on a cer- tain day, which was seven days later. The maker made no reply to this letter, and on the day named the payee sold the stock to A., and applied the proceeds in part payment of the note. The old certificate was sent to the maker, who was the treasurer of the corpora- tion issuing the stock, and he, as treasurer, made the transfer on the books of the corpora- tion, and issued a new certificate to A. About two years afterwards, the corporation sold out to another company of which the maker was also treasurer, and he, as treasurer, issued new stock to A. in exchange for the old stock. The maker did not, at the time of these trans- actions, make any objection to the sale, or to the notice given to him, nor at any time be- fore the action was brought, which was seven years after the sale. Held, that these facts would warrant a finding that the maker had waived any further notice of the sale than he had received. Downer v. Whillier, 144 Mass. 448 (1887). 14. A policy of life insurance was pledged as collateral security for the payment of a promissory note, with power to sell the same at public or private sale. The maker of the note, having been pressed for payment, wrote to the payee, fifteen months after the maturity of the note, that he could pay him a certain sum for the policy. The payee replied, that he had been offered a larger sum for it, and, unless the maker could pay him that amount, he should sell it. The maker made no reply, and, seven months later, the payee sold the policy for its value at that time, and notified the maker of the sale. He never made any objection or complaint for over seven years. Held, that these facts would warrant a find- ing that the maker had waived any further notice than he had received. Downer v. Whit- tier, 144 Mass. 448 (1887). COLLECTOR OF TAXES. See Tax. COLLUSION. See Divorce. COMMISSION. See Agent; Trust. COMMISSIONERS. Bridge Commissioners, see Bridge. County Commissioners, see County Com- missioners; Way. Commissioners to take Depositions, see Deposition. Park Commissioners, see Park. Railroad Commissioners, see Railroad. Water Commissioners of Town, see Town, IV. A statute authorized the Supreme Judicial Court, upon application being made, to ap- point commissioners within a certain time from the passage of the act, to determine the amount of special benefits received by a city and town from a bridge. Held, that the ap- pointment might be made after that time, nunc pro tunc, upon an application made and enter- tained by the court within the time limited. Agawam v. Hampden County, 130 Mass. 528 (1881). COMMISSION MERCHANT. See Agent. COMMON CARRIER. See Carrier. COMMON COUNCIL. See By-laws; Town. COMMON DRUNKARD See Drunkenness. COMMON NUISANCE. See Disorderly House; GAMmG; House op III- Fame; Nuisance ; Spirituous Li- quors. 191 CONDITION. 192 COMMON SELLER. See Spirituous Liquors. COMMON, TENANT IN. See Joint Tenants. COMMON THIEF. See Larceny. COMMONWEALTH. See also Attorney-General. A State lunatic hospital, under the control and government of the Commonwealth, can- not be charged as trustee of a person to whom it is indebted for personal services. Dewey V. Gareey, 130 Mass. 86 (1881). COMPLAINT. In general, see Indictment. See also Spirituous Liquors. COMPOSITION WITH CREDITORS. In Bankruptcy and Insolvency, see Bank- ruptcy; Insolvency. 1. If a debtor enters into an indenture with his creditors, which provides that all creditors are to become parties to the indenture, and by which he agrees to pay them, by promis- sory notes, a certain percentage of their re- spective claims, and they agree to accept this composition in full satisfaction and discharge of their claims, and the debtor, in order to in- duce some of his creditors to sign the inden- ture, pays them a larger percentage than that stipulated therein, without the knowledge of the other creditors who have signed it, one of the latter may maintain an action upon hia claim against the debtor, without first return- ing the composition notes received by him, or their proceeds. Cohh v. Tirrell, 137 Mass. 143 (1884). 2. E. executed a deed, by which he con- veyed his stock in trade and other property to trustees, in trust to sell and dispose of the same, " and apply the proceeds to the pay- ment of certain promissory notes, given to said creditors and indorsed by .1., his wife," to the amount of thirty cents on each dollar owed by said E. to his several creditors. Then, after the payment of said notes, to de- liver up to E. all that may remain of said property, to his use, discharged of said trust, " said creditors hereby agreeing to grant said E. a full discharge from all indebtedness upon the payment of said notes as aforesaid." The several creditors of E. signed this deed, placing against their names respectively the amount of their debts on account of which they had received the notes of E. indorsed by his wife, to the amount of thirty per cent. P., a creditor, who held a promissory note made by E., dated before and payable after the date of the deed, signed the deed, and against his signature was a certain sum, which was the amount of a book account due him, not including the note. For the amount of such account he had received notes of E. in- dorsed by his wife, but he never received any such notes for thirty per cent of the note above named. Held, in an action on the note by P. against E., that it was not barred by the deed. Preston v. Etter, 140 Mass. 465 (1886). 3. An agreement of composition, by which creditors agree to accept a certain percentage of their several debts in full settlement there- of, and which provides that it is "not to be binding unless signed by all the unsecured creditoi's," is not a bar to an action on a claim by a creditor who has signed the agreement, if the agreement is not signed by all the un- secured creditors. Walker y. Mayo, 143 Mass. 42 (1886). CONCEALING MORTGAGED GOODS. See Mortgage. CONDITION. See also Bond ; Covenant ; Deed ; Ease- ment; Mortgage. 1. A deed of real estate contained the fol- lowing clause : " This conveyance is made upon the condition that the said C," the grantee, " will erect upon said premises a cotton factory within two years from the date hereof." Held, that this was a condition an- nexed to the estate conveyed, and not a per^ sonal covenant with the grantor. Langley v. Chapin, 134 Mass. 82 (1883). 2. A lot of land twenty-one feet wide was conveyed subject to the condition that the front line of the building should be fifteen feet from the street on which the land bounded, and the deed recited that the building then on the land conformed to the condition. The front line of the building thus referred to was straight. Subsequently the owner built a rec- tangular addition to the front, eight or nine feet wide and projecting three feet and three inches towards the street. This structure be- gan four feet above the ground and extended to the top of the building. _ Held, that there was a violation of the condition. Sanborn v. Rice, 129 Mass. 387 (1880). 193 CONDITION. 194 3. A conveyance of a lot of land was subject to the " conditions " that "no dwelling-house or other building except necessary out-build- ings shall be erected or placed on the rear of the said lot," and that "no buildings which may be erected on the said lot shall be less than three stories in height, exclusive of the basement and attic, nor have exterior walla of any other material than brick, stone, or iron, nor be used or occupied for any other purpose or in any other way than as a dwelling-house for the term of twenty years," from a certain day. Held, that these were to be construed as restrictions, and not as conditions, and con- stituted a breach of a covenant against in- cumbrances in a subsequent deed. Ayling v. Kramer, 133 Mass. 12 (1882). 4. A deed of a lot of land, bounded on a street, contained a condition that "no dwell- ing-house or other building shall be erected on the rear of said lot." This deed also stated that the building then on the land conformed to the condition. Held, that there was no ambiguity as to what was meant by the rear of the lot, although the same condition had been inserted in an agreement for a deed made when the land was vacant. Sanborn v. Rice, 129 Mass. 387 (1880). 5. A devise to J. S. " in consideration " of the testator being taken good care of and well treated by the devisee for the remainder of the testator's life, is not a devise on condi- tion ; and failure of the consideration will not defeat or avoid the will without a cancelling or revocation by the testator. Martin v. Mar- tin, 131 Mass. 547 (1881). 6. An entry by a grantor of land, for breach of a condition annexed to the land conveyed, is not invalid for want of notice to the grantee. Langley v. Chapin, 134 Mass. 82 (1883). 7. A. conveyed land in a city to B. on a con- dition. While the land was in the possessior> of B. it was sold for non-payment of taxes, and a deed made to the city. A. then en- tered for breach of condition. After the two years allowed by law for the redemption of the land from the tax sale had expired, the city sold the land, by private sale, to B., in consideration of the payment by him of the amount of the tax for which it was originally sold, intervening taxes, and charges, and gave him a quitclaim deed of the land. Held, that, although the deed was invalid, the payment by B. inured to the benefit of A., and extin- guished the title acquired by the city; and that A. could maintain a writ of entry against B. to recover possession of the land. Langley V. Chapin, 134 Mass. 82 (1883). 8. On a writ of entry, brought by one of two grantors of land against a person claiming under the grantee, to recover the land, on the ground of a breach of a condition annexed to the land conveyed, the tenant's bill of excep- tions stated that the demandant entered for breach of condition, and that the other grantor subsequently conveyed his interest to him. Held, that, as the respective interests of the grantors did not appear in the exceptions, and as the entry by the demandant might have SUPPLEMKKT. — 7 been made as co-tenant or agent of the other grantor, the exceptions did not show that the entry was not sufBcient to revest the entire estate; and that the subsequent conveyance was not one of a mere right of re-entry. Langley v. Chapin, 134 Mass. 82 (1883). 9. Land was conveyed subject to the " re- strictions and conditions " that no building ever should be erected upon it to be used for certain trades, or within a certain distance of a street. The deed provided further, that any breach of these provisions should not work a forfeiture of the estate, but give a right of entry to remove the building. Held, that these were not conditions, but restrictions, which, although unlimited in point of time, were valid, and could be enforced in equity. Tubey v. Moore, 130 Mass. 448 (1881). 10. Land bounded on a street was conveyed "subject to the condition that no building shall ever be placed on that part of the land lying within twenty-flve feet of said street." Held, that the clause took effect only by way of restriction, and that, in the absence of evidence that it was imposed for the benefit of other land, it must be construed as a per- sonal covenant only with the grantor, and not as a condition enforceable by his heirs after his death. Skinner v. Shepard, 130 Mass. 180 (1881). 11. The rule against perpetuities, which governs limitations over to third persons to take effect in the future, 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 by him or them at any time. Tobey v. Moore, 130 Mass. 448 (1881). 12. Land was conveyed to a school district, in 1804, by a deed containing the following provisions; " The said land to be held by said district for the purpose of building a school-house thereon, and to be improved for the benefit of schools, and for no other use ; and when said district shall cease to improve the said land for the purposes aforesaid, for two years in succession, then the said land shall revert back to " the grantor. The dis- trict soon afterwards built a school-house on the land; and, upon the abolition of the school district in the town, the title of said district passed to the town. A school was kept in the school-house by the district and the town from the time the school-house was built until 1872. After that, no school was kept there, the scholars having been trans- f eiTed to another school-house where they could be graded. The land and school-house were not taxed to any one, but were always treated by the town and school committee as a part of the school property of the town. In 1881, under a vote of the school committee, a new fence was built around the land; the school- house and fence have since remained, and the land has never been used for any other pur- pose. Held, on a writ of entry, brought in 1881, by the grantor against the town, that there was no breach of the condition of the deed, or forfeiture of the estate. Crane v. Hyde Park, 135 Mass. 147 (1883). 195 CONFLICT OF LAWS. 196 13. A deed of land contained the re- striction that no building should be erected thereon "within twenty feet of C. Street." The grantee built a house on the land, facing towards C. Street, the front wall of which was twenty feet from that street. A part of the roof, which sloped towards the street, was extended to within less than fourteen feet of it, covering a piazza, and supported by posts six feet from the front wall of the house. In this part of the roof there was a dormer win- dow, by which a room in the second story was extended to within seventeen feet of the street. Held, that so much of the roof and of the dormer window as was nearer the street than the front line of the building was an extension of the building, and within the restriction in the deed. Bagnall v. Davies, 140 Mass. 76 (1885). CONDITIONAL LIMITATION. See Devise. CONDITIONAL SALE. See Sale. CONDONATION. See Divorce. CONFESSION. See Evidence. CONFLICT OP LAWS. 1. A testator domiciled in this Common- wealth devised real and personal estate situ- ated here to trustees in trust to the use of his daughter until her arrival at the age of twen- ty-one years or marriage within that age, and then in trust to convey one half to her dis- charged of all trusts, and to hold the other half during her life, paying her the income thereof, and, on her death, in trust to convey the same as she should, by deed or writing, or by her last will, or by any writing purporting to be her last will, appoint, and, m default of such appointment, to the use of her children and their heirs. The daughter married a res- ident of Maryland, and died there, possessed of property, real and personal, other than that over which she had the power of appointment; and leaving the husband and two children, and a will, which was duly admitted to pro- bate in Maryland and in this Commonwealth, by which she devised to her husband all the real and personal estate to which she should be entitled in law or equity at the time of her decease, but made no mention of the power of appointment. By the law of Maryland, her will was not a good execution of the power of appointment. Held, on a bill in equity by the trustees under the father's will to deter, mine to whom they should transfer the prop- erty held by them, that by the law of this Commonwealth the daughter's will was a good execution of the power; and that the power was therefore well executed. Sewall v. WU- mer, 132 Mass. 131 (1882). 2. A child adopted, with the consent of its father and the sanction of a judicial decree, in another State, where the parties are domi- ciled at the time, under a statute by which a child so adopted has the same rights of in- heritance as legitimate offspring in the estate of the adopting father, is entitled, after the adopting father and the adopted child have removed their domicil into this Common- wealth, to inherit here the real estate of such father as against his collateral heirs ; although his wife has given no formal consent to the adoption, as is required under the statutes of adoption of this Commonwealth. Eoss\. Ross, 129 Mass. 243 (1880). See also St. 1876, c. 213, § 11. 3. A trust on which property is held, cre- ated by judicial decree of a court of another State having jurisdiction of the matter, can- not be enforced in this Commonwealth by a beneficiary, or by his creditors, although the trustee personally resides here, and has not given any bond or filed any inventory in the State where he was appointed. Jenkins v. Lester, 131 Mass. 355 (1881); Leland v. Smith, 131 Mass. 358, note (1881). 4. If a person residing in this Common- ^vealth is appointed executor of a will in an- other State, and ancillary letters testamentary are also granted to him here, and his final ac- count, showing that the balance in his hands has been paid to him as executor under his appointment in the other State, is allowed by the Probate Court here, this court has no jurisdiction of a biU in equity to construe the will and marshal and distribute the estate. Emery v. Batche.lder, 132 Mass. 452 (1882). _ 5. If a person is summoned as trustee in another State, and later in the same day is summoned as trustee of the same person in another action in this Commonwealth, and the court in the other State assumes jurisdiction of the fund attached, and, after a full dis- closure by the trustee of the facts relating to the suit pending and the service made in this Commonwealth, renders judgment and exe- cution against him, upon which he pays oyer the fund, such payment is a bar to his being charged anew in this Commonwealth. Garily V. Gigie, 130 Mass. 184 (1881). 6. An employee of a seller of intoxicating liquors in another State, who there receives an order for such liquors, and, under authority from his employer to receive or reject orders, accepts the order, may be indicted for an un- lawful sale in this Commonwealth, if the 197 CONFLICT OP LAWS. 198 liquors, in pursuance of his direction, are de- livered to the buyer in this Commonwealth. Commonwealth v. Eggleston, 128 Mass. 408 (1880). 7. A joint-stock company formed under N. Y. Sts. 1849, c. 258, 1851, c. 455, and 1853, c. 153, is not a corporation, and members of it may be sued here as partners, although suits have riot been prosecuted in the first instance against the officers of the association, as required by the statutes of New York. Boston §• Albany Railroad v. Pearson, 128 Mass. 445 (1880). 8. An assignment of a chose in action made in fraud of creditors is void as against them under the law of New York as well as of Massachusetts; and where the remedy is sought in Massacliusetts, the assignment having been made in New York, the question as to the form of the remedy is to be deter- mined by the lex fori. Drake v. Rice, 130 Mass. 410 (1881). 9. Under the statutes of Massachusetts, a special partner is not personally liable for the debts of the copartnership, except in the cases specified by statute. Where, therefore, the general partners are sued in the courts of another State, the special partner not being joined, and judgment is obtained against them, such judgment wiU be recognized in Massachusetts, without -regard to the ques- tion of whether in any event it could be im- peached collaterally; and especially is this so when the statute of the State where the suit was brought, as well as the Massachusetts statute, provides that suits respecting the business of a limited partnership shall be brought by and against the general partners only. Lawrence v. Batchetler, 131 Mass. 504 (1881). 10. The forfeiture of interest provided by U. S. Rev. Sts. § 5198, where a national bank has received a greater rate of interest on a promissory note than is allowed by the laws of the State where the note was made, in vio- lation of § 5197, may be availed of in defence of an action in a State court by the bank upon, the note, although the suit is brought in a State other than that of the discount of the note. Peterborough Bank v. Childs, 130 Mass. 519 (1881). 11. A voluntary assignment by a debtor in another State of all his property situated in this Commonwealth, in trust for his creditors, the only consideration for which is the ac- ceptance of the trust by the assignee, although valid in the State where made, is invalid as against a subsequent attachment of his per- sonal property by a creditor in this Common- wealth not assenting to the assignment; and a subsequent assent to the assignment by creditors in the other State, by proving their claims under it, cannot defeat the title ac- quired by the attachment here. Pierce v. O'Brien, 129 Mass. 314 (1880). 12. An assignment was made for the bene- fit of creditors under New Hampshire Gen. Sts. 1867, c. 126, while the Bankrupt Act of the United States of 1867 was in force, and a creditor proved his claim and received a divi- dend thereon. Held, that, if the effect of the statute of New Hampshire was to bar an action upon the claim, it was an insolvent law, the operation of which was suspended by the Bankrupt Act. Lyman w. Bond, 130 Mass. 291 (1881). 13. An action upon a judgment recovered in this State against a resident thereof, on a debt due to a resident of another State, is not barred by a discharge in insolvency granted here on proceedings begun after the judgment was rendered, if the original debt would not have been discharged. Murphy v. Manning, 134 Mass. 488 (1883). 14. B., a citizen of Massachusetts, was a creditor of A., also a citizen of Massachusetts. B. sued A. in another State, trusteed A.'s debtor there, prosecuted his suit to final judg- ment, and recovered a sum of money from the trustee. After the attachment, A. was adjudged an insolvent. Held, that the as- signee in insolvency could not maintain against B. an action for the recovery of the money so obtained. Lawrence v. Batcheller, 131 Mass. 504 (1881). 15. A discharge in insolvency under the laws of this Commonwealth is no bar .to an action by a citizen of another State, on a con- tract made and to be performed here with the defendant, a citizen of this Commonwealth, although the defendant made the contract with the plaintifi's agent, who also was a citizen here, supposing him to be the princi- pal, and the fact that he was merely an agent was not disclosed. Guernsey v. Wood, 130 Mass. 503 (1881). 16. A non-resident may maintain an action in the courts of this Commonwealth, against a foreign insurance company doing business here, upon a contract made, and the subject matter of which is situated in another State, although the only service of process is made upon the insurance commissioner of the Com- monwealth, in accordance with St. 1878, c. 36. Johnston v. Trade Ins. Co., 132 Mass. 432 (1882). 17. The effect of the indorsement and de- livery, in another State, of a private ware- house receipt for goods stored in this State, is to be determined by the law of this State. Hallgarten v. Oldham, 135 Mass. 1 (1883). 18. A. executed a trust deed in this Com- monwealth, where he was then domiciled, by which he conveyed certain personal property to a trustee, in trust to pay the income of a portion to B. for life, and, on the death of B., to pay the principal of that portion to A , if then living, and, if not then living, to A.'s " heirs at law." The trust deed authorized the fund to be invested in real estate, and looked to a possible division in that form. A. died after B. , and at the time of his death he was domiciled in another State. The fund always remained invested in personal 'prop- erty. Held, that the construction of the in- strument depended upon Massachusetts law, and that the term " heirs at law ' ' meant heirs at law, and not next of kin, or persons enti- tled under the statute of distributions relating 199 CONSPIRACY. 200 to personal estates. Merrill v. Preston, 135 Mass. 451 (1883). 19. If an assignment is made in this Com- monwealth, between parties domiciled here, of a policy of insurance issued by a company Organized under the laws of another State, but delivered here, the questions of the validity of the assignment and of the capacity of the parties to contract are to be determined by the law of this Commonwealth. New York Mutual Ins. Co. v. Allen, 138 Mass. 24 (1884). 20. A promissory note, made and signed in another State, and payable there, although sent by mail to the payee in this Common- wealth, is executed in, and to be governed by the law of, the other State. Shoe Sj- Leather Bank V. Wood, 142 Mass. 563 (1886). 21. There is no presumption that the law of another State corresponds with a statute of this Commonwealth. Daniels v. Pratt, 143 Mass. 216 (1887). 22. A., a married woman living in another State, employed B. to borrow for her a sum of money from her brother living in this Com- monwealth. He declined to lend the money, but C, his wife, out of her own money, deliv- ered to B. the sum required, together with a paper, dated here, and reading as follows : "Borrowed and received from C. the sum " named. " Sign this and return it." B. car- vied the money and paper to A., who took and kept the money, signed the paper, know- ing its contents, and returned it to C. in this Commonwealth. Held, that the judge who tried the case without a jury was justified in finding, on these facts, that the contract was made and to be performed in this Common- wealth; and that it was immaterial that the paper was signed in the other State. Hill v. Chase, 143 Mass. 129 (1886). 23. A testator made a will in Rhode Island, where he was domiciled, by which he gave his property in trust, directing the payment of his debts, and providing for his wife, but not declaring the provision to be in lieu of dower. He changed his domicil to this Com- monwealth, where he died. At the time of his death, he owned lands in both of these States, and also in Minnesota. The widow accepted the provision of the will in her favor. By the law of each of the foreign States, such acceptance would not bar her right of dower or one third interest in the lands therein. The lands in this Commonwealth and in Khode Island were subject to mortgages. By a statute of Minnesota, the widow's interest was "subject in its just proportion with the other real estate for such debts of the deceased as are not paid from the personal estate." The executor of the will, under a power there- in, sold the land in Minnesota; and the widow brought an action against him here for one third of the proceeds of the sale. Held, that the Pub. Sts. c. 127, § 20, providing that a widow shall not be entitled to her dower in addition to the provisions of her husband's will, unless such plainly appears to have been his intention, did not apply to lands outside of this Commonwealth; and that the widow's interest in the proceeds of the sale was bound to contribute to the payment of the mortgages upon the lands in this Commonwealth. Staigg v. Atkinson, 144 Mass. 564 (1887). CONFUSION AND ACCESSION. See Attachment ; Trover. 1. If a person adds to goods, acquired under a fraudulent sale in which he participated, other goods subsequently purchased, he is not entitled, in an action against an officer who attaches all the goods as the property of the fraudulent vendor of the first-named goods, to recover the value of the goods subsequently purchased, if the mingling them with the other goods was purposely done, or through want of proper care. Stearns v. Herrick, 132 Mass. 114 (1882). 2. If articles of household furniture which are exempt from attachment are intermingled, in the house of the owner, with other similar articles not so exempt, this is not such a con- fusion of goods as will justify an officer, upon failure of the owner to claim any of the arti- cles as exempt, in attaching all of them. Copp V. Williams, 135 Mass. 401 (1883). CONNIVANCE. See Divorce. CONSIDERATION. See Bills and Notes ; Contract, II. CONSIGNOR AND CONSIGNEE. See Agent, VII. CONSPIRACY. 1. An indictment against A. and B. alleged that, on a day named, A. was the owner of certain goods and chattels of a stated value, contained in a dwelling-house occupied by him ; that, on that day, he was also the owner of a good and valid policy of insurance issued to him by a certain company, by the terms of which said goods and chattels were insured to him, until a certain day, against loss or dam- age by fire to an amount stated; that, on the day first named, the defendants unlawfully and fraudulently conspired together to remove said goods and chattels from A.'s house, and to secrete and conceal the same, so that A. might thereafter falsely and fraudulently ob- tain and acquire to himself from the insur- 201 CONSTABLE. 202 ance company the sum of money for which the goods were insured, by causing the house to be destroyed by fire and by thereafter falsely and fraudulently pretending to the insurance company that said goods and chattels had been burned with the house ; and that, in pur- suance of and according to said conspiracy, the defendants, on a day named, removed said goods and chattels from A.'s house, and con- cealed and secreted the same in B.'s barn. Held, that the indictment did not sufficiently allege a conspiracy to do an act for the pur- pose of aiding A. to commit a felony. Com- monwealth v. Barnes, 132 Mass. 242 (1882). 2. An indictment against A. and B. alleged that the defendants, intending to injure the wife of A. and to deprive her of her good name and character, conspired to entrap and ensnare her, and falsely to charge and accuse her of the crime of adultery with B., with the intent to induce her, through fear of being publicly charged with and prosecuted for said crime, to release, against her will, all rights of property and support to which she was and would be entitled as A.'s wife, including a re- lease of all right of dower in A.'s real estate; and with the intent to induce her, against her will, to surrender and release all claims under a certain promissory note made by A. payable to a third person, and by the latter indorsed to her, and held by her as her sole and separate property ; and with the intent that A. might wrongfully procure a divorce from her, against her will, for the crime of adultery falsely charged ; that, in pursuance of said conspiracy, the defendants plotted that B. should lodge in the dwelling-house occupied by A.'s wife as a residence, and should get in bed alone with her, against her will, and should be found therein with her; and that B. did get in bed alone with A.'s wife, against her will, and was found therein by A. Held, that the indictment sufficiently alleged a conspiracy falsely to charge and accuse the wife of A. of adultery, and thereby to extort from her a release of valuable rights, and to compel her to do acts against her will, and was good. Commonwealth v. Nichols, 134 Mass. 513 (1883}. 8. An indictment for a conspiracy, which sets out an intention to cheat and defraud a certain person, the conspiracy to do so, the property out of which he was to be cheated, the false and fraudulent pretences by means of which the fraud was to be accomplished, and connecting the defendants with them all, is sufficient ; and it is not necessary to set out any overt acts, or any actual injury to the person intended to be defrauded, or any denial in detail of the truth of the various false pre- tences. Commonwealth v. Fuller, 132 Mass. 563 (1882). 4. An indictment charging a conspiracy to extort money, without alleging from whom the money was sought to be extorted, cannot be sustained. Commonwealth v. Andrews, 132 Mass. 263 (1882). 5. An indictment against a man and a wo- man alleged that they falsely and maliciously conspired " to charge and accuse " one F. that he had committed the crime of adultery with the woman, " with intent thereby then and there unjustly and unlawfully to obtain and ac- quire to them " divers sums of money of said v., " for compounding the said pretended adul- tery so falsely and maliciously charged on him as aforesaid." Held, that the indictment charged an offence with sufficient certainty. Commonwealth v. Andrews, 132 Mass. 263 (1882). 6. It is no bar to an indictment against A. and B., for conspiracy falsely to accuse the wife of A. of adultery with B., that a divorce was granted to A. from his said wife upon his libel for the cause of adultery with B., to which she set up as a defence the charge of conspiracy contained in the indictment. Com- monwealth V. Nichols, 134 Mass. 531 (1883). 7. If one count of an indictment cbai'ges a conspiracy to commit the crime of extortion by falsely accusing one of the crime of adul- tery, and another count charges a conspiracy falsely to accuse one of the crime of adultery, if there is evidence to sustain the former count, a general verdict of guilty will not be set aside, although the latter count is insuffi- cient. Commonwealth v. Nichols, 134 Mass. 531 (1883). 8. No action lies by A. against B. for con- spiracy between B. and C. in obtaining a judgment against A. in an action brought in a court of another State having jurisdiction of the subject matter and of the parties, in which A. appeared and answered, but was defaulted, which judgment remains in full force, and to satisfy which A.'s property in that State was sold. Engstrom v. Sherburne, 137 Mass. 158 (1884). CONSTABLE. As to powers, duties, and liabilities common to constables and other officers, see Arrest; Attachment; Execdtion; Officer; Spir- ituous Liquors ; Town. See Bond; Divorce. 1. A constable may, upon a capias issued by a district court in a criminal case, arrest a person outside of the town for which he is elected, but in the same count}', and within the jurisdiction of the court issuing the war- rant. Sullivan v. Wenlworth, 137 Mass. 233 (1884). 2. An action maybe maintained upon a con- stable's bond, on proof of a judgment against him in an action for official misconduct, al- though no demand has been made upon him for payment of the amount of the judgment, if he has rendered such demand impossible by his withdrawal from the State. Fall River v. Riley, 138 Mass. 336 (1885). 3. In an action against the sureties upon a constable's bond, they may impeach the validity of the judgment against their prin- cipal, by showing that there was no jurisdic- tion in the court rendering the judgment, by reason of want of legal service upon him of the writ in the original action. Fall River v. Riley, 140 Mass. 488 (1886). 203 CONSTITUTIONAL LAW, I., IL 204 CONSTITUTIONAL LAW. I. Constitution of the United States. (a) Laws impairing the Obligation of Contracts. (6) Laws regulating Interstate Com- merce. (c) Miscellaneous Cases. II. Constitution op Massachusetts; Declaration of Rights. (a) Art. Xi : Taking Private Property for Public Uses. SArt. XII. : Formal Indictments. Art. XII.: No Subject to be de- prived of Property, etc. (rf) Art. XV. : Right to Trial by Jury in Civil Cases, (e) Art. XXX.: Legislative, Execu- tive, and Judicial Powers. III. Laws imposing Taxes and other Burdens. IV. Miscellaneous Cases. I. Constitution of the United States. (a) Laws impairing the Obligation of Contracts. 1. There is no objection; on the ground of constitutionality, to the provision of Gen. Sts. c. 68, § 41, declaring that every act of incor- poration shall be subject to amendment, alteration, or repeal, at the pleasure of the Legislature; nor to St. 1872, c. 342, authoriz- ing and directing a street railway thereby in- corporated to take possession of the tracks of a previously chartered corporation, upon pay- ment of compensation. United States Su- preme Court, in Greenwood v. Freight Co., 105 U. S. 13 (1881). 2. It is no ground of objection to the con- stitutionality of St. 1879, c. 297, that the defendant in an action, under that statute, to recover for injuries caused by the intoxication of a person to whom he sold intoxicating liquors, had a license to sell such liquors, and had not violated his license. A license is not a contract. It imports merely an authority to sell according to law, and subject to aU the limitations, restrictions, and liabilities which the law imposes. Moran v. Goodwin, 130 Mass. 158 (1881). (b) Liaws regnlating Interstate Com- merce. 1. Gen. Sts. c. 78, § 5, providing that "no person shall cause or permit to be driven or floated down Connecticut River any masts, spars, logs, or other timber, unless the same are formed and bound into rafts and placed under the care of a sufficient number of per- sons to govern and manage the same so as to prevent damage thereby," is constitutional, even in the case of logs coming from one State and passing through this Common- wealth on their way to another State. No attempt is here made to regulate interstate commerce. Harrigdn v. Connecticut River Lumber Co., 129 Mass. 580 (1880). 2. The provisions of Gen. Sts. c. 49, §§ 122- 124, relating to the inspection and sale, in this Commonwealth, of lime imported from the State of Maine, regulating the mode of packing, size of casks, etc., are repugnant to U. S. Const. Art. 1, §§ 8, 9, giving to Con- gress the power to regulate commerce among the several States, and providing that " no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another." Biggins v. Lime, 130 Mass. 1 (1880). 3. The St. of 1885, c. 338, § 2, providing that the board of railroad commissioners may fix a maximum charge and rate for any freight received in this Commonwealth by a certain railroad corporation for transportation to and delivery at any other point or place, and for any freight received by said corpora- tion at any point or place for transportation to and delivery at any place in the Common- wealth, that such order shall be binding upon the corporation, and that the corporation shall not receive or demand any greater sum for such transportation and delivery than the amount so fixed as a maximum, and an order of the railroad commissioners, passed under the authoi'ity of the statute, fixing the maxi- mum rates which the corporation might charge for the transportation of certain kinds of freight between various points or places iu this Commonwealth and other points or places in another State, are in conflict with the Constitution of the United States, art. 1, § 8, providing that Congress shall have the exclusive power to regulate " commerce among the several States," and are invalid. Com- monwealth v. Housatonic Railroad, 143 Mass. 264 (1887). (c) Miscellaneous Cases. 1. It is not contrary to the provisions of the Constitution of the United States for a State to enact a statute giving the maker of a ne- gotiable promissory note the same defence as against an indorsee that he has against the payee, if the note is made in such State and is payable there. Shoe If Leather Bank v. Wood, 142 Mass. 563 (1886^. 2. Under the fourteenth article of the Amendments of the Constitution of the Unit- ed States, a judgment in personam against a person who is not a resident of this Com- monwealth, who does not appear in the action, and who is not served personally with process within the Commonwealth, is invalid. Eliot v. McCormick, 144 Mass. 10 (1887). II. Constitution of Massachusetts; Declaration op Rights. (a) Art. X. : Taking Private Property for Public Uses. 1. It is undoubtedly within the power of the Legislature to authorize such a use of a 205 CONSTITUTIONAL LAW, II. 206 stream as shall wholly destroy a public fishery. Howes V. Grush, 131 Mass. 207 (1881). 2. There are no provisions of St. 1875, 0. 185, authorizing a board of park commis- sioners to locate and lay out within the city of Boston a public park, to take lands, assess expenses, etc., which need be so construed as to render the act unconstitutional. Foster v. Park Commissioners, 133 Mass. 321 (1882). 3. St. 1851, c. 290, re-enacted in Gen. Sts. 0. 43, §§ 17, 18, and providing for the appor- tionment of damages awarded for the taking for a highway of land in which there are dis- tinct or separate interests, is not unconstitu- tional so far as it afiects the parties to a lease made after its passage; such parties must be deemed to have taken their title subject to these provisions ; and if gross damages have been paid to a trustee appointed by the judge of probate, under said statutes, the lessee, or those claiming under him, cannot maintain a bill in equity against such trustee and the general owner of the land, to compel a differ- ent distribution of the damages from that provided for in the statutes, even if the ap- pointment of the trustee was irregular or invalid. Turner v. Rabbins, 133 Mass. 207 (1882). 4. The St. of 1867, c. 73, authorizing an aqueduct corporation to take and use the waters of certain ponds to supply the inhabit- ants of a town with water by an aqueduct, and to enter upon and take any lands neces- sary for laying and maintaining aqueduct pipes or other works necessary for that pur- pose, and providing that "all damages sus- tained by entering upon and taking land, water, or water rights, for either or any of the above purposes, shall, in case of disagree- ment with the parties injured, be ascertained, determined, and recovered in the same man- ner as is now provided in cases where land is taken for highways," makes, in connection with the general laws, adequate provision for compensation, and is constitutional. Brickett V. Haverhill Aqueduct, 142 Mass. 394 (1886). (b) Art. XII. : Formal Indictments. The clause of St. 1880, c. 221, § 2, providing that it shall not be necessary, in complaints under it for drunkenness, to allege the two previous convictions of a like offence within the next preceding twelve months, upon which the extent of the punishment depends, is in conflict with the twelfth article of the Decla- ration of Rights, and void. Commonwealth v. Harrington, 130 Mass. 35 (1880). (c) Art. XII.: No Subject to be deprived of Property, etc. 1. After the decision of this court in Wall V. Wall, 124 Mass. 65 (1878), adjudging that a collector of taxes had no authority to sell an undivided interest in the land, so as to con- stitute the purchaser tenant in common with the owner, — and that, when the only previous notice was that the land, or such undivided part thereof as might be necessary, would be sold, any sale, although of the entire parcel of land, was void, — St. of 1878, c. 229, en- acted that no such sale previously made should be held to be invalid by reason of such defect, provided that the act should not apply to any case wherein proceedings at law or in equity had been begun involving the validity of such sale, nor to any real estate which had been alienated between the date of the decision and the passage of the act. Held, that the stat- ute was unconstitutional, both for assuming to take away private property without due process of law, and without compensation, and because it was an attempt by the Legis- lature to exercise judicial power. Forster v. Forster, 129 Mass. 559 (1880). 2. St. 1876, c. 75, authorizing the owners of meadow lands lying on each side of the Neponset River to form a corporation for the purpose of draining and improving the mead- ows, and providing that the act shall take effect on its acceptance by a less number than all the owners, is unconstitutional, so far as it authorizes the corporation to maintain com- plaints under the mill act. Gen. Sts. c. 149, for flowing the meadows of owners who have not assented to the act. Neponset Meadow Co. V. Tileston, 133 Mass. 189 (1882). 3. Gen. Sts. c. 88, § 69, as amended by St. 1880, c. 94, providing that a license, granted to a person to keep a table for playing at pool for hire, " may be revoked at the pleas- ure of the authority granting it," is consti- tutional. Commonwealth v. Kinsley, 133 Mass. 578 (1882). 4. St. 1824, c. 16, providing that door-steps shall not project into a street of Charlestown for more than a given distance, is constitu- tional, and steps erected within that distance do not constitute a defect in the highway for which the city is liable. Cushing v. Boston, 128 Ma!3S. 330 (1880). 5. St. 1867, c. 59, so far as it prohibits a person, during the time of holding a camp or field meeting for religious purposes, and within one mile of the place thereof, from establish- ing or maintaining a building for vending provisions or refreshments, without permis- sion from the authorities or officers having the charge or direction of the meeting, provided, that a person having a regular, usual, and established place of business within such lim- its is not required to suspend his business, is constitutional. Comm.onwealth v. Bearse, 132 Mass. 542 (1882). 6. St. 1864, c. 122, § 2, so far as it author- izes inspectors of milk to enter all carriages used in the conveyance of milk, and, when- ever they have reason to believe any milk found therein is adulterated, to take speci- mens thereof for the purpose of analyzing or otherwise satisfactorily testing the same, is constitutional. Commonwealth v. Carter, 132 Mass. 12 (1882). 7. St. 1880, c. 209, § 7, providing that " in all prosecutions under this act," for selling adulterated milk, " if the milk shall be shown upon analysis to contain more than eighty- seven per centum of wateiy fluid, or to con- tain less than thirteen per centum of milk 207 CONSTITUTIONAL LAW, III. 208 solids, it shall be deemed for the purposes of this act to be adulterated," is constitu- tional. Commonwealth v. Evans, 132 Mass. 11 (1882). (d) Art. XV, : Bight to Trial by Jury in Civil Cases. 1. The right to a trial by jury is sufficiently secured, where the subject of the action ex- ceeds twenty dollars in value, by allowing a jury trial either in the Municipal Court or in the Superior Court on appeal. O'Loughlin v. Bird, 128 Mass. 600 (1880). 2 Sts. 1874, 0. 248, § 1, and 1875, c. 212, § 1, providing that in civil actions a party shall not be entitled to a trial by jury, unless he files, within the time therein prescribed, a notice that he desires such trial, are constitu- tional. Faster v. Morse, 132 Mass. 354 (1882) ; Bailey v. Joy, 132 Mass. 356 (1882). 3. St. 1879, c. 245, § 4, making a certifi- cate of discharge in insolvency conclusive evidence of the fact and regularity of the dis- charge, unless annulled by the court which granted it, is constitutional. There is no con- stitutional right to a trial by jury of the facts upon which a certificate of discharge may be granted or annulled by a court of bankruptcy or insolvency. Kempton v. Saunders, 130 Mass. 236 (1881); Upham v. Raymond, 132 Mass. 186 (1882). (e) Art. XXX. Legislative, Executive, and Judicial Povvrers. 1. After the decision of this court in Somer- ville V. Boston, 120 Mass. 574, that the words " any woman," in St. 1874, c. 274, § 2, re- lating to the settlement of paupers, applied only to unmarried women, St. 1878, c. 190, was passed, re-enacting the previous statute, and declaring that it should be held "to apply to married women." ' Held, that the later statute, as applied to future cases, was consti- tutional. Cambridge v. Boston, 130 Mass. 357 (1881). See also Forster v. Forster, 129 Mass. 559, supra, (c), pi. 1. 2. If the Governor of the Commonwealth, on receipt of a bill from the Senate or House of Representatives, states in writing his objec- tions to the bill, delivers it to his private sec- retary with instructions to have the bill with his objections returned to the House in which it originated, and then leaves the Common- wealth, temporarily, and the secretary, within five days from the time the bill was presented to the Governor, and while the Lieutenant- Governor is performing the duties incumbent upon the Governor, returns the bill with the objections, in accordance with the directions he received from the Governor, which have not been countermanded by the Lieutenant- Governor, the bill does not have the force of a law, without further action by the Legisla- ture; and the fact that the objections bear a date as of a day when the Governor is absent from the Commonwealth is immaterial. Opin- ion of the Justices, 135 Mass. 594 (1883). 3. The Pub. Sts. c. 218, §§ 12-14, providing that, in any case in which the Governor is authorized by the Constitution to grant a pardon, lie may, with the advice of the Coun- cil, upon the petition of the person convicted, grant a conditional pardon, and that, where the conditions of the pardon ai-e violated, he shall be arrested, and the Governor and Coun- cil shall " examine the case of such convict, and, if it appears by his own admission or by evidence that he has violated the conditions of his pardon, the Governor with the advice of the Council shall order the convict to be re- manded and confined for the unexpired term of his sentence," are constitutional; and the Governor and Council may order the convict to be so remanded and confined without notice to him, and without giving him an opportu- nity to be heard. Kennedy's case, 135 Mass. 48 (1883). 4. It is within the constitutional power of the Legislature to enact a statute which has the effect to pass a title to letters patent of the United States. Barton v. White, 144 Mass. 281 (1887). III. Laws imposing Taxes and other Burdens. 1. A statute authorized county commission- ers to lay out and build a bridge across a river between a city and a town, and to file a report of the cost in the office of the clerk of this court; directed the court to appoint commis- sioners to determine what cities and towns in the county were or would be specially bene- fited by the bridge, and what proportions of the cost should be paid by those cities and towns respectively; and provided that their award, when returned to the court, and judg- ment entered thereon, should be binding upon all parties interested. After the bridge was built, and a report of the cost filed, commis- sioners were appointed, and made an award, upon which judgment was entered, determin- ing that the city and town between which the bridge was built should pay the county the whole cost of the bridge in certain propor- tions. A subsequent statute provided that this court should appoint commissioners to determine and report the amount of special benefit which the said city and town received from the bridge, and. if they should find that such special benefit did not equal the cost of the bridge, as appearing by the report on file, to determine that the county should pay to the city and town the amount that each had paid in excess of the benefit received there- from. Held, that this statute was constitu- tional. Agawam v. Hampden County, 130 Mass. 528 (1881). 2. St. 1880, c. 227, imposing upon every corporation and association engaged within the Commonwealth in the business of life in- surance an annual excise tax, " to be deter- mined by assessment of the same upon a valu- ation equal to the aggregate net value of all policies in force on the thirty-first day of December then next preceding, issued or 209 CONSTITUTIONAL LAW, IV. 210 assumed by such corporation or association, and held by residents of the Commonwealth, at the rate of one half of one per centum per annum," is constitutional. Connecticut Ins. Co. V. Commonwealth, 133 Mass. 161 (1882). 3. St. 1878, c. 275, extending the provisions of St. 1865, c. 283, which authorizes the levy of an excise upon corporate franchises, so that they shall apply, " so far as applicable, to companies, copartnerships, and other associa- tions having a location or place of business within this Commonwealth, in which the beneficial interest is held in shares which are assignable without consent of the other asso- ciates specifically authorizing such transfer;" and providing that the tax provided for in St. 1865, c. 283, ','shall be paid by such com- pany, copartnership, or association upon the aggregate value of the shares of said capital stock, in the manner provided in said chapter for taxes upon corporations;" so far as it applies to a partnership in which, by agree- ment of the partners, the interest of each member may be transferred without the special assent of the other members, is un- constitutional. Gleason v. McKay, 134 Mass. 419 (1883). 4. St. 1873, c. 340, authorizing the city council of Boston to order the owners of lands situated in a certain district " to raise the grade of their said lands, filling up the same with good materials to such permanent grade as may be deemed necessary by the board of aldermen in order to secure a complete drain- age thereof, so as to abate and prevent nui- sances, and to preserve the public health of the city," and, if the owner of such lands fails to comply with the order, to fiU up the land, " and all necessary expenses incurred thereby shall constitute a lien upon the lands filled," is constitutional; the authority of the Legislature to pass laws of this character is too well settled to be questioned. Nickerson V. Boston, 131 Mass. 307 (1881). 5. The St. of 1882, c. 93, authorizing a cer- tain town to pay bounties to soldiers who re- enlisted in a certain regiment in 1864, and were credited to the town, is unconstitutional. Mead v. Acton, 139 Mass. 341 (1885). IV. Miscellaneous Cases. 1. St. 1878, c. 261, allowing a person in- debted to a savings bank, in a proceeding for the collection of the debt, to set ofE the amount of a deposit held and owned by him at the commencement of such proceeding, is con- stitutional. North Bridgewater Savings Bank V. ^oule, 129 Mass. 528 (1880). 2. Under the Constitution of Massachusetts 0. 3, art. 1, providing that " all judicial offi- cers, duly appointed, commissioned, and sworn, shall hold their offices during good behavior, . . . provided, nevertheless, the Governor, with consent of the Council, may remove them upon the address of both houses of the Legis- lature," a judicial officer may be removed by address, for misconduct and maladministration in office, although he is liable to trial therefor, by impeaoliment, by c. 1, § 2, art. 8, of the Constitution. The address need not assign reasons. The Constitution authorizes the re- moval without reasons being assigned, and, upon the hearing of an information in the nature of a quo warranto, filed upon the re- lation of a judicial officer so removed, it is immaterial what evidence or causes induced the Legislature to vote the address or led the (iovernor and Council to act upon it. Com- monwealth V. Harriman, 134 Mass. 314 (1883). 3. After the determination by this court, on a bill in equity, that the ringing of a bell on a mill, at a certain hour in the morning, was a private nuisance to the plaintiff, and after a final injunction was issued restrain- ing such ringing, the St. of 1883, c. 84, was passed, authorizing " manufacturers and others employing workmen, for the purpose of giving notice to such employees, to ring bells and use whistles and gongs of such size and weight, in such manner, and at such hours as the board of aldermen of cities and the selectmen of towns may in writing designate." The selectmen of the town where the mill was situated granted a license to the owner to ring the bell on the mill at the hour at which he was prevented from ringing it by the injunc- tion. Held, on a bill of review brought by the mill-owner, seeking to have the injunc- tion modified, that the statute was constitu- tional, and that the bill could be maintained. Sawyer v. Davis, 136 Mass. 239 (1884). 4. Section 7 of the Pub. Sts. c. 100, giving a district court authority to revoke a license granted for the sale of intoxicating liquors, upon the application of an owner of real estate adjoining the premises in which the license is to be exercised, is constitutional, although it requires the city or town in which the license is revoked to refund to. the licensee the money paid by him for such license. Young v. Blais- dell, 138 Mass. 344 (1885). 5. The St. of 1884, c. 320, providing for the appointment of commissioners to make rules for the selection of persons to fill offices in the government of the Commonwealth and of the several cities thereof, which are required to be filled by appointment, and for the selec- tion of persons to be employed as laborers or otherwise in the service of the Commonwealth, and of the several cities thereof, and to super- vise the administration of such rules, is con- stitutional; and the Legislature may provide a penalty for the violation of such rules, and may give them a general or limited applica- tion. Opinion of the Justices, 138 Mass. 601 (1885). 6. The twenty-second amendment to the Constitution of the Commonwealth requires the Commonwealth to be divided by the Gen- eral Court into senatorial districts according to the boundaries of towns and cities and the wards thereof, as they existed on the first day of May in the year in which the census of legal voters is taken that applies to said ap- portionment and division. Opinion of the Justices, 142 Mass. 601 (1886). 211 CONTRACT, I. 212 7. The twenty-first amendment to the Con- Btitution of the Commonwealth requires the aldermen of the city of Boston, and the county commissioners of the other counties than Suf- folk (in case no special commissioners are provided therefor), to divide the assignments of representatives to the several counties ap- portioned by the Legislature, according to the boundaries of the towns and cities and their wards, as they existed on the first day of May in the year in which the census of the legal voters is taken that applies to said apportion- ment and division. Opinion of the Justices, 142 Mass. 601 (1886). 8. In 1856, a town laid out a town way over the land of A. In the same year, the town, under an article in the warrant " to see if the town will discontinue any part of the road " referred to, voted to discontinue one half-i-od on A.'s land, and thence to land of B. to a point. The effect of this was to make the road narrower. In 1875, the Legislature passed an act confirming the vote of the town. The part of the road discontinued remained open until 1885, when C, to whom A. had conveyed his title in the land, erected a fence on the discontinued part of the street. Held, in an action by C. against the highway sur- veyor of the town for removing the fence, that the act of the Legislature was constitu- tional. Held, also, that declarations made by A. at the town meeting when the road was discontinued, that if the town would discon- tinue the road there should be no fence erected there, and that it should remain open to the public, were inadmissible. SpauMing v. Nourse, 143 Mass. 490 (1887). 9. Section 7 of the St. of 1885, c. 345, pro- viding that " no person hereafter naturalized in any court shall be entitled to be registered as a voter within thirty days of such natural- ization," is in conflict with the Constitution of the Commonwealth, and is void. Kinneen V. Wells, 144 Mass. 497 (1887). CONTINGENT KEMAINDEE. See Devise. CONTINUANCE. Whether a continuance of an action shall be granted, so as to enable the defendant to obtain and plead a certificate of discharge in insolvency, is within the discretion of the com't in which the action is pending. SuUings v. Ginn, 131 Mass. 479 (1881). See also Bankrupt, II. CONTRACT, ACTION OF. See Assumpsit; Pleading. CONTRACT. I. What constitutes a Contract; who BOUND BY ; Implied Contracts. II. Consideration. III. Validity. See also Duress; Insanity (a) As to Public Policy or Morality. (6) As to Uncertainty. IV. Construction. (a) Generally. (63 - • ■ Particular Agreements. V. Performance and Breach. VI. Rescission ; Waiver ; Merger ; Di8> charge. Of Ante-nuptial Contracts, see Husband and Wike. Of Breach of Contract of Marriage, see Breach of Promise. Of Contracts to convey Real Estate, see Vendor and Purchaser. Of Reforming Contracts, and of compelling the Specific Performance thereof, see Equity. See also Agent; Alteration of Instru- ments; Bankruptcy; Bills and Notes; Carrier ; Collateral Security ; Con- flict OF Laws; Constitutional Law; Corporation; Covenant; Damages; Du- ress ; Evidence ; Executor ; Fraud ; Frauds, Statute or ; Gaming ; Guar- dian; Insolvency; Landlord and Ten- ant; Limitations; Master and Servant; Mortgage; Partnership; Sale; Trust; Usury; Waiver. I. What constitutes a Contract; who bound by; Implied Contracts. 1. If a contract in writing, purporting to he between two persons, and containing mutual and dependent stipulations to be by them severally performed, is signed by them, and also by a third person, in such a manner as not to indicate the capacity in which he is a party to the contract, no action can be main- tained thereon by one of the parties named in the body of the contract against him and the other party jointly ; and parol evidence is in- admissible to show that he signed it intending to be bound, and as surety for the other de- fendant. Blackmer v. Davis, 128 Mass. 538 (1880). 2. B., who, for a commission, had agreed with C. to lend him his credit, and who had security for any liability which he might in- cur, offered to buy of A. for the use of C. a number of bales of rags at a certain price per pound. A. declined to sell at this price, and offered to sell at a higher price. Subsequently, in the absence of B., an arrangement vas made between A. and C, by which C. paid A. the difference between the two prices, and A. delivered the rags to C, and charged B. with the amount offered by him. Held, that there was no contract between A. and B. Held, aZso, that the fact that B., on receipt of a bill of the goods, gave a promissory note for the amount, did not of itself, as matter of law. 213 CONTRACT, I. 214 amount to a ratification of the transaction. Patton V. Toft, 143 Mass. 140 (1886). Implied Contracts. 3. A promise will not be implied against the express declaration of a person upon whom no duty is imposed by law. Earle v. Coburn, 130 Mass. 596 (1881). 4. An agreement to pay interest due on a promissory note of another, and taxes due upon his estate mortgaged to secure the note, and, upon a certain condition, to take care of the interest which might thereafter become due, by a person who is under no previous liability on the note, and has no interest in the estate, except an anticipated conveyance of it to him in the future, raises no implied promise on his part to pay the principal of the note. Home Savings Bank v. Mackintosh, 131 Mass. 489 (1881). 5. On the issue whether board and lodging were furnished and services rendered gratui- tously by a son-in-law to his father-in-law, there was evidence that both lived together on the land of the latter, who said that he ex- pected to live there all his days ; that he in- tended to pay his way, and that the land was to be his daughter's when he died. Held, that this evidence would warrant a verdict in favor of the son-in-law. James v. Cummings, 132 Mass. 78 (1882). 6. No contract can be implied in addition to an express contract in writing relating to the same subject matter. Brown v. Fales, 139 Mass. 21 (1885). Contract by Letter. 7. If an offer is made by letter, in which the person making the offer requests an an- swer by telegraph "yes" or "no," and states that, unless he receives the answer by a cer- tain date, he " shall conclude ' no,' " the ofier is made dependent upon an actual receipt of the despatch on or before the date named. Lewis V. Browning, 130 Mass. 173 (1881). 8. B. wrote to the president of a college as follows: " If you can raise one hundred thou- sand dollars within five years from date to aid the college, you may rely upon me for one hundred thousand in addition to what I have already given." Held, in an action upon this letter, as a contract on the part of B., that the condition therein requii-ed the raising of one hundred thousand dollars in money, and was not satisfied by a promise of money contained in a vote of a society, to the pay- ment of which a condition was attached. Bates College v. Bates, 135 Mass. 487 (1883). 9. The plaintiff wrote to the defendant, " At what price will you fill my orders for gauge glasses? " The defendant replied by letter, " We will supply you with gauge glasses at the same rates we supply A." Subsequently the defendant wrote to the plaintiff: " Our understanding with A. is bill at sight immediately on receipt of goods, and we hope you will comply with the same conditions ; we have put you exactly on the same terms as A. ; the present price 8^d. per lb." Held, that if the plaintiff did not, after this, pay for goods received by bill at sight, the defendant was not bound to fill a subse- quent order. Held, also, that the defendant had the right to accept or reject any particular order. Held, also, that there was no sufficient memorandum in writing to satisfy the statute of frauds, Gen. Sts. c. 105, § 5. Ashcrofl v. BuUerworih, 136 Mass. 511 (1884). 10. To a declaration upon an account an- nexed for goods sold and delivered, the answer set up the breach of a special contract to de- liver goods. At the trial, to prove the contract, the defendant offered in evidence a memoran- dum signed by himself, in connection with two letters written subsequently by the plain- tiff to the defendant. The memorandum contained an agreement by the plaintiff to furnish ten thousand croquet sets to the de- fendant at a price named. The first letter contained these words; " We will undertake the croquet job upon the terms agreed upon when at your place." The second letter con- tained the following: " We wrote you that we would undertake the job of ten thousand sets." Held, that the evidence offered was sufficient to prove the contract alleged in the answer. Smith v. Colby, 136 Mass. 562 (1884). 11. A. instructed B. to procure insurance in some good company. B. applied to C, an insurance agent, (who had authority to issue policies in the U. Company and in the N. Company,) and C. delivered to B. a policy in the U. Company which contained a clause reserving to the company the right, after giving written notice to the insured, to cancel the policy as to all risks subsequent to the ex- piration of ten days from such notice. B. de- livered the policy to A., who accepted it. Ten days later, the insurance company directed C. to cancel the risk. C. thereupon entered the risk on the policy register of the N. Company, and made out a policy. Five days later, the property insured was destroyed by fire. On the same day, after the fire, but with no knowl- edge of it, C. mailed the second policy to B. with a letter, dated the day before, informing him that the U. Company declined the risk, and requesting an exchange of policies. After he had sent the second policy, C, on the same day, received a letter from the N. Company declining the risk. B. notified C. of the loss on the same day, after he had received the second policy. C., after receiving the letter of the N. Company, went to see B., and A., at B.'s request, and in C.'s presence, handed the first policy to B., and accepted the second policy in exchange; and B. then gave the first policy to C. at his request. Each company returned the premium to C, and refused to pay the loss. Held, that A. could not main- tain an action against the N. Company. Wilson V. New Hampshire Ins. Co., 140 Mass. 210 (1885). Compare also Thurston v. Perry, 130 Mass. 240 (1881). For other cases where a conti-act was held not to have been implied, see Bank, pi. 2, 3; Cakkier, VII. pi. 3; Insanity, 215 CONTRACT, II. 216 II. Consideration. 1. If a creditor, by request of a third per- son, forbears to insist upon having collateral security for his debt given directly to himself by his debtor, and instead thereof it is agreed that the property of the debtor shall be trans- ferred by way of security to such third person, ■who shall thereupon and as part of the same transaction become responsible for the debt to the creditor, and this is accordingly done, a promissory note given by such third person to the creditor in pursuance of such agreement is for a valuable consideration. Parsons v. Clark, 132 Mass. 569 (1882). 2. A. agreed with B. to build two houses, payments to be made as specified. B. failed to make payments as required, and A. refused to go on, except upon receiving security, whereupon a note was given him as collateral. Held, that A.'s waiver of the breach of con- tract was a sufficient consideration for the note. Byington v. Simpson, 134 Mass. 145 (1883). 3. A. manufactured a machine on the order of B. , on the agreement that B. should pay cash for it. C. had ordered the machine of B. When the machine was completed, B. was not able to pay cash, and it was agreed between A., B., and C. , that B. should pay A. part cash, and give his promissory notes for the balance, secured by an order from B. on C. for goods, accepted by C. This was done, and, on the faith of the order, A. delivered the machine to C. on account of B. Held, that there was a good consideration between A. and C, and that A. could maintain an action against C. on the acceptance. Rogers V. Union Stone Co., 134 Mass. 31 (1883). 4. If the holder of a promissory note enters into an agreement, not under seal, with the maker, by which the time of payment is to be extended, the interest then due is to be paid at the original rate, and the holder is after- wards to apply a portion of the interest towards the extinguishment of the principal, no consideration being shown for the holder's promise, it is, in effect, merely a promise to take less than his debt, and is not binding upon him, and therefore does not operate to discharge a surety on the note. Wilson v. Powers, 130 Mass. 127 (1881). 5. The acceptance of a lease containing a covenant that the lessee will give up the demised premises to the lessor at the end of the term in as good order and condition " as the same now are or may be put into by the lessor," is a sufficient consideration for an agreement, executed and delivered by the les- sor contemporaneously with the lease, which refers in terms to the lease, and in which the lessor binds himself to make forthwith certain repairs upon the premises. Vass v. Wales, 129 Mass. 38 (1880). 6. If two persons enter into a written con- tract, which one refuses to fulfil, and tne other makes a new contract with him, which operates as a rescission of the original con- tract, the new contract is founded upon a sufficient consideration. Rollins v. Marsh, 128 Mass. 116 (1880). 7. In an action on a promissory note, by which the defendant agreed to pay the plain- tiff a certain sum the day he was married, it appeared that the parties, on the day of the date of the note, signed another paper by which they agreed to live together so long as they should live, and to marry as soon as they should think it safe on account of an old en- gagement of the defendant; and there was evidence that the agreements were afterwards rescinded by mutual consent, and the defend- ant married the person to whom he had been engaged formerly. The plaintiff asked the judge to rule, that, if a valuable consideration was shown, this was sufficient, however inade- quate ; that this with the consideration of love and affection would be a valid consideration. The judge declined so to rule, and instructed the jury that, if the note was made and de- livered in consideration of an existing promise of marriage, and an agreement that he would pay the amount stated, as a penalty for not fulfilling that promise on his marriage to an- other, there was a legal consideration for the note, and the plaintiff might recover, if it was not subsequently released. Held, that the plaintiff had no ground of exception. Dean v. Skiff, 128 Mass. 174 (1880). 8. The privileges of membership in a chari- table association afford a sufficient consider- ation for a promise to pay annual dues, especially where, in reliance upon the pay- ment of these and similar dues, the association has expended during the year a sum equal to their amount. United Hebrew Association v. Benshimol, 130 Mass. 325 (1881). 9. It seems to have been assumed in this Commonwealth that an agreement to forbear bringing suit for a debt due, even although for an indefinite time, and even although it cannot be construed to be an agreement for perpetual forbearance, if followed by actual forbearance for a reasonable time, is a good consideration for a promise to pay the debt by a person other than the debtor. Howe v. Tag- gart, 133 Mass. 284 (1882). 10. A. employed B. to make repairs upon a coasting vessel of which A. was the master. The repairs were made in a home port, from which the vessel afterwards departed, and B. filed no statement of his claim for such re- pairs, under the Gen. Sts. c. 151, § 13. C, more than a year later, became the owner of the vessel, and advertised it for sale by auc- tion. B. then demanded of C. payment for the work he had done upon the vessel, and threatened 'to proceed to enforce by legal means the lien which he claimed to have upon it, unless C. would pay or secure his claim. C, to induce B. to forbear legal pro- ceedings, promised to pay his claim, if it was one for which he could maintain a lien which could be enforced against the vessel ; and B. forbore all legal proceedings. Held, that B. had lost his lien, and could not maintain an action against C. Dunham v. Johnson, 135 Mass. 310 (1883). 11. A corporation engaged in transporting merchandise by railway made a contract, by its agent, W., with the agent of the owner of 217 CONTRACT, III. 218 a steamship, for the shipment of grain, and W. sent the agent of the steamship a paper headed " Memorandum of freight engage- ment," and signed by W. as agent, which contained the name of the steamship, the date of sailing, the number of bushels, the rate of freight, and the words, " For account of B. Engaged by W., agent." The grain not be- ing ready, W. and the agent of the steamship orally agreed that the contract for the grain should be transferred to another steamship, owned by a different person, but running in the same line and having the same agent. Held, in an action by the owner of the second steamship against the corporation, for breach of the contract to furnish the grain, that by the terms of the memorandum the defendant was the contracting party, and not the person on whose account it was shipped, although, by the course of dealing between the parties, it was the practice to carry grain, on one bill of lading, from the place where it was deliv- ered to the defendant to the place to which it was carried by the steamship. Held, also, that the defendant was not entitled to a rul- ing that, on all the evidence, the contract for the delivery of the grain to the owner of the steamship was the contract of the shipper, and not that of the defendant. Steamship Bulga- rian Co. V. Merchants' Transp. Co., 135 Mass. 421 (1883). 12. If A. advances to B. a sum of money towards the purchase of a house by B., this is a sufficient consideration for a subsequent promise by B. to pay the amount, although the deed was taken in the name of A., as security for the advance; and the debt is not extinguished. Hennessey v. Connor, 139 Mass. 120 (1885). 13. An oral agreement by a lessee to take a partner in his business for the ensuing three years, and to borrow a large sum of money, and put the same into the business, pro- vided the lessor will reduce the rent re- served in a written lease of the premises, and an actual fulfilment of that agreement in consequence of the lessor's promise to reduce the rent, and a continuance of the business under these circumstances for three years, are a good consideration for the lessor's promise ; and the lessor is not entitled to recover the amount so agreed to be abated. Hastings v. Lovejoyi 140 Mass. 261 (1885). III. Validity. (a) As to Public Policy or Morality. 1. A contract between two stockholders in a corporation, by the terms of which one, in consideration of a sum of money paid to him by the other, agrees to vote for a certain per- son as manager of the- corporation, and also to vote to increase the salaries of the officers of the corporation, including that of the man- ager, is void as against public policy, unless it is assented to by all the stockholders of the corporation; and whether it is valid if so as- sented to, qumre. Woodruff y. Wentworth, 183 Mass. 309 (1882). 2. The plaintiil, under a contract, was to contribute letters patent owned by him to a corporation to be formed by the defendants and himself in the District of Columbia, the capital stock to be paid partly in money, partly in the letters patent, and the plaintifE to receive a certain number of shares of the stock. Held, that as the law of the District of Columbia provided that a corporation should be dissolved unless the capital stock should be paid in within a certain time, and that noth- ing but money should be considered as pay- ment of any part of the capital stock, the scheme contemplated by the agreement was illegal; and that the plaintiff could not main- tain an action on the agreement for the failure of the defendants to complete the organization of the corporation and to convey to him his proportion of the capital stock. Maine v. Butler, 130 Mass. 196 (1881). 3. An agreement between a corporation and a person entering its employ provided that the employee should deposit a certain sum of money with the corporation, as security for the proper discharge of his duties; that the president of the corporation should be the sole judge between the corporation and the em- ployee whether the corporation was entitled to retain the whole or any part of the deposit, and that his certificate in writing that the whole or any part of said sum was to be so re- tained and forfeited to the coi-poration should be conclusive evidence between the parties, in all courts of justice, that the amount thereby forfeited was so forfeited, and should bar the employee o£ all right, under any circum- stances, to recover the money so certified to be forfeited. Held, in an action by the em- ployee against the corporation to recover the sum so deposited, that the latter clauses were an agreement to submit to arbitration and an attempt to oust the courts of jurisdiction, and were void. White v. Middlesex Railroad, 135 Mass. 216 (1883). 4. C. requested A. to recommend to him a builder "that you can indorse in every way responsible and reliable," who could erect a building for him cheaper than certain other builders. A. recommended B., who orally promised to pay A. a sum of money "for his trouble." B. was employed by C, erected the, building, and was paid. Held, that A. could not maintain an action against B. on his promise. Holcorrib v. Weaver, 136 Mass. 265 (1884). 5. A. bought by auction at a stock ex- change, of which he and B. were members, a number of shares of stock, at a price exceed- ing fifty dollars, but, in accordance with the custom of the exchange, he did not receive his certificates until the next business day. After his purchase, and before he received his cer- tificates, he sold to B. a less number of shares, at a price exceeding fifty dollars, deliverable in sixty days, buyer's option. After A. re- ceived his certificates, he and B. executed memoranda of purchase and sale. At the ex- piration of the sixty days, A. tendered to B. certificates of stock of the required amount, which he refused to accept; but it did not 219 CONTRACT, IV. 220 appear whether these were the same certificates which A. had when he made the sale to B. Purchases and sales of the same stock were made by A. during the sixty days, hut he always had in his possession certificates of stock sufficient in amount to satisfy the con- tract. Held, that A. could maintain an action against B. for refusing to accept the stock. Mann v. Bishop, 136 Mass. 495 (1884). 6. No action can be maintained upon a promissory note, given by a person while un- der arrest on a complaint for larceny of prop- erty exceeding in value $100, to the owner of the property alleged to have been stolen, un- der an agreement that the complaint shall be placed on file, the plaintiff having received the note with notice of the circumstances; and the question of the guilt or innocence of the accused person is not open in such action. Gorham v. Keyes, 137 Mass. 583 (1884). 7. If a bankrupt debtor orally promises to pay a creditor's debt in full, if the creditor will sign an assent to his discharge and enable him to obtain it, and the debtor, after having thus obtained his discharge, gives, in execu- tion of his oral promise, a written promise to pay the debt, no action can be maintained thereon. Tirrell v. Freeman, 139 Mass. 297 (1885). 8. A. signed a subscription paper, whereby he and the other subscribers agreed to con- tribute the amounts set opposite their names for the purpose of purchasing the property of a mining corporation. As part of the same transaction, the promoter of the scheme se- cretly agreed, on behalf of the corporation, to give A. a certain number of shares of stock free of cost. This was to induce A. to be a subscriber, and to influence others to sign; and some of those who afterwards subscribed were in part induced to do so by seeing that A. was a subscriber. Subsequently, the scheme was given up, because enough subscribers were not obtained to buy the entire property, and another scheme was set on foot by the pro- moter, by which the persons who signed the former paper were to take shares of stock in the company. A. refused to have anything to do with it unless he could have the same ad- vantage he would have derived had the prior arrangement been carried out; and the pro- moter agreed to this. No new papei-s were drawn up, and A. acted with the other sub- scribers to the original paper in carrying out the new scheme, apparently on an equality with them, and intending that his subsci'ip- tion should be used to secure this result. Held, in an action brought by A. against the promoter of the scheme to recover the value of the shares of stock secretly bargained for, that these facts would warrant the jury in finding that the new secret agreement was void as in fraud of the other subscribers. Nickerson v. English, 142 Mass. 267 (1886). 9. Three manufacturers of a certain kind of curtain fixture, under different letters patent owned by them severally, desiring to avoid competition, formed a corporation in which they were the only stockholders, and an agreement was executed by the corporation, of the one part, And the three manufacturers, of the other part, by the terms of which the manufacturers gave the corporation the sole right to sell said curtain fixture for three years, the corporation agreeing to buy, at a specified price, all that the manufacturers might make, and the manufacturers acting as the selling agents of the corporation, and re- ceiving a commission on goods sold by them. The agreement further provided, that, during the term of the contract, the manufacturers should not dispose of their patents except upon such terms that a transferee should be bound by the agreement; and that they should not dispose of their stock in the corporation without the written assent of a majority of the stockholders. Held, that the agreement was not void as against public policy; and that the court would restrain by injunction one of the manufacturers from selling goods on his own account, in violation of the agree- ment. Central Shade Roller Co. v. Cushman. 143 Mass. 353 (1887). (b) As to Uncertainty. A. owed a certain sum upon a promissory note payable to C. and secured by a mortgage running to him, but representing a debt due to B., and C. held the note and mortgage for B.'s benefit. A. owed other persons besides B., with whom, being insolvent, he settled, paying one in full, and to the others different portions of their debts. A. also made a settle- ment with B. and C, which was evidenced by a written agreement, according to the terms of which A. paid fifty per cent of B.'s debt, part to B. and part to C, and B. released C. from all liability to him, and the note and mortgage were given up by C. and discharged. The agreement then provided as follows : " Said B. is to receive from said A. pro rata per cent of all moneys said A. may hereafter pay his ' borrowed money creditors,' as he calls them, to the amount of fifty per cent on " the sum due on said note before the set- tlement, said amount being stated in figures; "the pro rata herein named is intended to mean on all moneys paid borrowed money creditors, after the settlement which A. now says he has made with such creditors," recit- ing in full the settlement said to have been made, and leaving the amount remaining un- paid to be computed. Held, in an action by B. against A. upon this agreement, that it was not void for uncertainty; and that the meaning was, that, when A. should pay to his " borrowed money creditors " any portion of their debts remaining unpaid, he should pay to B. the same proportion of his debt re- maining unpaid. Raymond v. Rhodes, 135 Mass. 337 (1883). IV. Construction. (a) Generally. 1. In an action on a policy of insurance on " stereotype, electrotype, and steel plates and 221 CONTRACT, IV. 222 cuts," the issue was whether brass plates out with designs and letters, and used for making impressions on the covers of books, were " cuts " within the meaning of this term in the policy. Held, that the defendant was en- titled to a ruling that, if the word "cuts" had, among persons in the trade in which the plaintiff was engaged, a technical meaning universally so understood, the jury might pre- sume that such was its meaning in the policy. Houghton v. Watertown Ins. Co., 131 Mass. 300 (1881). 2. A contract between A. and B. of the one part, and C. and D. of the other, whereby A. and B. conveyed to C. and D. the right to manufacture machinery, under letters patent, contained a clause beginning, " It is hereby mutually agreed between the parties hereto," followed by several mutual agreements, and concluding with an agreement by D. to pay to A. a certain sum in settlement of a former ac- count between them. Held, that this was an independent stipulation, the non-performance of which would not prevent C. from maintain- ing an action, after the death of D. , against A. and B. for breach of the agreements to be performed by them. Crawford v. Weston, 131 Mass. 283 (1881). 3. If a factor, under an entire contract for a gross sum, sells goods, some of which belong to his principal and some to himself, the prin- cipal cannot sever the contract and maintain an action to recover the value of his goods from the purchaser. Roosevelt v. Dokerty, 129 Mass. 301 (1880). 4. A. proposed by letter to B., who held a promissory note of C. secured by a mortgage of real estate, to pay the interest then due on the note on the day when the next semiannual payment became due, and whatever taxes B. had to pay on the mortgaged estate, and, after that, provided B. would reduce the rate of in- terest, to take care of it as it fell due. B. accepted this proposition. A. was under no previous liability on the note, and had no in- terest in the estate except an anticipated con- veyance of it to him by C. in the future, which in fact he did not get. B., instead of paying the taxes then due, allowed the estate to be sold for non-payment of the taxes,- and purchased it at the tax sale. Held, in an action by B. against A. on the agreement, that A.'s offer contemplated that the title to the estate would remain in the same condi- tion as when the offer was made, by the pay- ment of the taxes by B. ; and that the action could not be maintained. Home Savings Bank V. Mackintosh. 131 Mass. 489 (1881). 5. A written agreement provided that the defendant should work for the plaintiff for one year from a date named; that the plaintiff should pay the defendant for such labor a specified sum per month ; that any inventions made by the defendant " while in his [the plaintiff's] employ " should be the plaintiff's property; and that the defendant should as- sign them accordingly. The defendant re- mained in the plaintiff's employ after the expiration of the year, and certain inventions were made by him afterwards. Held, on a bill in equity to enforce specific performance of this agreement, that the words " while in his employ " must be construed with reference to the duration of the agreement; and that the defendant was not bound to assign to the plaintiff inventions made by him while em- ployed by the plaintiff after the expiration of the year. Hopedale Machine Co. v. Entwistle, 133 Mass. 443 (1882). 6. A contract for the erection of a building provided that the work should be done in all respects according to the plan and specifica- tions which had been furnished by the archi- tect. One clause in the specifications required " all walls to be vaulted." By the plan, the walls of the building appeared to be sixteen inches in width, without the appearance of any vault or space intended to be left in them. Held, that, by the contract, the walls were to be only sixteen inches including the vault; and that parol evidence was inadmissible to explain the contract. Smith v. Flanders, 129 Mass. 322 (1880). 7. B. agreed in writing to build a sea-wall for A. The contract did not define the exact location of the proposed wall, and said nothing about a pile foundation being required. B. built the wall on the lines pointed out by A., and it proved to be defective for want of a pile foundation. Held, that an action would lie against A. for the price agreed to be paid for the wall. Burke v. Dunbar, 128 Mass. 499 (1880). 8. A contract in writing provided that, in consideration of certain services rendered by the plaintiff, the defendant would pay him a sum named within a certain time after the defendant had sold and received pay for six machines, which had been invented by the de- fendant and of which he owned letters patent, he being at that time alone in business. Sub- sequently he entered into partnership with a third person in the manufacture and sale of the machines, and they sold and received pay for six machines. Held, that this was a sale, within the meaning of the contract, whether made for the sole benefit of the defendant, or in behalf of himself and his partner. Hanson V. Dodge, 134 Mass. 273 (1883). 9. A contract between A. and B. set forth the sale by A. to B. of the good will of the entire interest of A.'s business " of manufac- turing and selling machinery and apparatus, belonging or appertaining to presses for hot- pressing textile fabrics by means of hollow or chambered plates," and an agreement not to engage, within the United States, in the busi- ness of manufacturing or selling machinery or apparatus for hot-pressing textile fabrics by means of hollow or chambered plates, or espe- cially belonging or appertaining to the same. Held, that the right of A. to manufacture and sell presses passed to B. Held, also, that the contract was not void for uncertainty. Craw- ford V.Weston, 131 Mass. 283 (1881). 10. A. proposed by letter to B. to put the gutter of a mill " in proper shape." B.'s let- ter of acceptance stated A.'s proposal to be to "repair and renew so far as necessary the gutter." Held, that the contract contained 223 CONTRACT, lY. 224 in the letters required A. only to make such repairs and renewals that the gutter should do all that it was capable of doing, when in good condition, according to its original plan of construction, and not to build a new gutter of a different construction, even if the original plan was defective. Dwight v. Ludlow Manuf. Co., 128 Mass. 280 (1880). 11. An agreement, executed and delivered by a lessor contemporaneously with a lease of certain greenhouses, recited that the boiler and heating apparatus were not in satisfactory order, and that other small repairs were needed in and upon the houses ; and that, in consider- ation of the lease, the lessor agreed to put the boilers and heating apparatus in good work- ing order, to furnish the lumber required to repair the benches, and to put the houses "generally in good working order." Held, that he was required to do only the work in and upon the greenhouses themselves, neces- sary to put them in. good order; and not to place guards on the roof of an adjacent build- ing on the demised premises to protect the greenhouses from snow and ice which might slide from that roof. Vass v. Wales, 129 Mass. 38 (1880). 12. A. and B. entered into a contract, by which A., in consideration of $2600 to be paid by B., agreed to build a house for B. The contract further provided that " the lum- ber-dealer is to have reserved $600 for bill," and provided for payments by B. to A. as the work progressed, and on the completion of the house, amounting in all to $1900. Held, that the $600 was to be reserved from the balance due after the completion of the work ; and that B. could not apply liabilities incurred by him for lumber in payment of the sums agreed to be paid during the work. Ford v. Burchard, 130 Mass. 424 (1881). 13. The plaintiff began the manufacture of machines for the defendant under an oral con- tract. After a considerable amount of labor and materials had been furnished, a written contract was made between the parties, by the terms of which the plaintiff was to receive payment for completed machines on delivery. Subsequently, and before any machines had been completed, but after much work had been done, which, although necessary for the construction of all the machines, could not enter into the cost of any particular machine, the written contract was superseded by an- other written contract, by the terms of which all items furnished before the date of that contract were to be paid for under it, and the defendant acknowledged his indebtedness for work previously done. Held, in an action on the last contract, that the defendant was not entitled to a ruling, that the plaintiff could not recover, under it, for work and labor per- formed before its date. Boston & Fairhaven Iron Works v. Montague, 135 Mass. 319 (1883). 14. A contract, signed by B., stated that he had "purchased of N. one hundred shares of the stock of the D. Company, at" a certain sum, "payable and deliverable buyer's option in sixty days, with interest." Held, in an ac- tion by N. against B. , that B. was bound by the contract to accept and pay for the stock at the expiration of sixty days from its date, unless he had exercised his election to have it de- livered at an earlier day. Nichols v. Bishop, 136 Mass. 349 (1884). 15. A corporation executed a written agree- ment, promising to pay T. a sum of money " upon the successful working of a metallic packing this day purchased of him." Held, in an action by T. on the agreement, that the " successful working " of the packing, which was a mechanical device to pievent the escape of steam when applied to the piston-rod of an engine, meant its success as such a device, and not as a mercantile adventure; that the ques- tion whether it worked successfully was one of fact for the jury; and that evidence that it would work only in combination with another device, or that, on a single occasion, it worked successfully when applied to a piston-rod of average quality, would not be conclusive in law to disprove or to prove the fact. Tripp V. New Metallic Packing Co., 137 Mass. 499 (1884). 16. A corporation issued certain notes with interest coupons attached, payable to bearer in three years after their date, and containing this provision: " The holder hereof may " on a day named, " or " on another day named, six months later, " and at no other time, ex- change this note, coupons not due being at- tached, for the stock of the company at par, that is, for one share." At a meeting of the corporation, held after this issue and before the first date named in the note, it was voted to increase the capital stock, and the stockhold- ers were given the right to take shares at par therein, in the proportion of one new share to three old shares held by them respectively. . At the time the notes were issued, there was, in the hands of certain trustees, a sufficient amount of full paid stock of the corporation, subject to its control and not otherwise appro- priated, to enable it to perform its contract to deliver stock for the notes. Held, that a bill in equity, filed on the day when the above- named meeting was held, by a holder of said notes, to enable him to share on equitable terms in the benefit of the issue of the addi- tional shares, could not be maintained. Pratt V. American Bell Telephone Co., 141 Mass. 225 (1886). 17. A. sent a postal card, signed by him, to B., containing the following: "Please send us pice of counter screen like draft." Upon this card was a draft of a counter screen with the measurements thereof. Held, in an ac- tion by B. against A. for the price of tiie goods named, that the writing presented a case of incurable uncertainty; and that the judge properly refused to submit it to the juiy to determine whether the letters "pice" meant " piece " or " price." Cheney Bigelow Wire Works v. Sorrell, 142 Mass. 442 (1886). 18. A. and B. executed an agreement, which provided that, in consideration of an assignment to B. by C. of all right, title, and interest in a certain invention and the letters patent previously assigned to C. by A., B., in 225 CONTRACT, IV. 226 part payment therefor, ■would pay to A. a cer- tain sum " on each and every machine manu- factured by said B., his agents, successors, or assigns, and containing said patented im- provements or either of them," within a stated time after making returns to A. of the number of machines manufactured by B. or his agents. Held, that A. was entitled to the royalty named in the agreement upon ma- chines bought of a person who was adjudged, in a suit by B., to have infringed the letters patent owned by B. in manufacturing the machines, and for the use of which in the future B. received payment from the persons so buying them. Porter v. Standard Measur- ing Machine Co., 142 Mass. 191 (1886]). 19. A contract by which one subscribes for a copy of a book, to be published in parts, at a certain price for each part, payment to be made for each part after delivery, is so far an entire contract, that the subscriber, after re- ceiving one part and paying for it, cannot, without offering to return such part, set up, in defence to an action for damages for breach of the contract in refusing to take and pay for the other parts, that he was induced to enter into the contract by fraud. Barrie v. Earle, 143 Mass. 1 (1886). 20. A. and B. entered into a contract in writing, by the terms of which A. agreed to W'ork for B. , at a certain rate per day, for a year, and, if B. continued in business, at an advanced rate for the second year. During the first year, B. took in C. as a partner, and the business continued as before, except that B. gave up to C. the direction of the work. A. worked for the firm, after its formation, until the end of the two years, receiving his pay weekly at the rate agreed upon for the first year. He then brought an action against B. on the contract to recover the extra rate for the second year. The judge admitted evidence of admissions of C. in regard to the contract; instructed the jury that, if the defendant con- tinued business with a partner during the sec- ond year, he would be continuing business within the meaning of the contract; and left it to the jury to determine, as a question of fact, whether the defendant gave up business. The jury returned a verdict for the plain- tiff. Held, that the defendant had no gromid of exception. Collett v. Smith, 143 Mass. 473 (1887). (b) Particular Agreements. 1. In an action by the executor of C. against the indorser of a promissory note, it appaared that, before the maturity of the note, the plain- tiff and the defendant executed an indenture, which recited that there had been a partner- ship between the defendant and C, which was dissolved by the death of C, and that an ar- i-angement had been made by which the plain- tiff, as executor of C, was to take all the property of the partnership and pay all its debts and liabilities, and also to release the defendant from all sums " which he may be owing said copartnership, amounting to $6,000 more or less;" and by which the defendant SUPPLEMENT. — 8 assigned all the stock of goods, securities, debts, and effects, in which he had any right by virtue of the copartnership, and all his in- terest therein, to the plaintiff, with full power to sue for, receive, and collect the same; and the plaintiff covenanted that he would pay and discharge all the debts of the firm and would indemnify and hold the defendant harmless therefrom, and " doth hereby re- lease and forever discharge " the defendant " from any and all sums which he is individ- ually indebted to said partnership and to the estate of said C, being |6,000 more or less." Held, that the indenture applied to such debts only as were due from the defendant to the former partnership ; and that, it not appear- ing that the note in suit was a partnership transaction, it was not affected by the release. Lathrop v. Page, 129 Mass. 19 (1880). 2. A. and B., owners of mills on a small stream, and of a dam and reservoir built for the purpose of supplying water to the mills, entered into an agreement, by the terms of which B. conveyed to A. all his interest in the dam and reservoir, together with the right of passing over B.'s land to the dam for the pur- pose of drawing water from the reservoir, dur- ing working hours, at the rate of fifty cubic feet per second for the operation of A.'s mill; and A. conveyed to B. the right of using said dam for the purpose of drawing water from the reservoir at the rate of fifty cubic feet of water per second, " at any and all times dur- ing working hours," for the purpose of run- ning B.'s mill, "or such other mill or mills as may be erected on his privilege." The agree- ment further provided that, if A. should waste the water in the reservoir, or draw therefrom at other times than working hours, so that B. should fail to have the supply of water re- quired for his mill, the agreement should be void. At the time the agreement was made, the mills on the stream were cotton-mills, the working hours of which were eleven hours a day. B. subsequently changed his mill to a paper-mill, which ran day and night. Held, that the term " working hours " meant the working hours of the mills at the date of the agreement; and that B. could not maintain an action against A. for preventing him from using the water at night. Binney v. Phcenix Cotton Manuf. Co., 128 Mass. 496 (1880). 3. An agi-eement between A. and B., recit- ing that A. had lent to B. certain sums of money to enable him to carry on the business of canning fruits, and that B. desired further sums for the same purpose, and to secure B. therefor, contained the following terms : A. was to advance money, not exceeding a cer- tain amount, for the purpose of enabling B. to purchase fruit and materials, and pay all expenses of canning and preparing the same for market, until the end of the canning sea- son; "and when the process is completed, then the entire stock in trade of B. is to be the property of A. ; is to be conveyed to him by good and sufficient biU of sale, renewed and delivered to A. evei-y thirty days during said season;" and the money realized from the whole or part of the stock in trade was to 227 CONTRACT, IV. 228 be paid over to A., except such sums as might be necessary to defray the expenses of the business, until the whole amount advanced, and interest, should be paid; and in case B. should neglect or refuse to conduct the busi- ness according to the terms of the contract, A. might terminate the contract, and take possession of all the goods, effects, and credits of B., sell the same, and account to B. for any surplus remaining after the payment of the advances and interest. Held, that, at the end of the canning season, the title to the goods remained in B., unless A. had acquired title by a bill of sale or by taking possession. Wilson V. Russell, 138 Mass. 211 (1884). 4. A., the mortgagee in possession of a vessel, who was under a contract to sell his interest in the vessel to B. for a certain sum, made a contract with C, by which, in consid- eration of the payment by C. to A. of a sum named, and that C. would pay a further sum upon the signing of a bill of lading by B. for cargo on the vessel for an immediate voyage to L., and would also pay a certain other sum in advance on each of three subsequent and suc- cessive voyages of the vessel, (all the payments being on account of the amount that B. had agreed to pay A. for his interest in the vessel,) A. agreed to place B. in charge of the vessel " without assuming any responsibility under charter-parties made by him," and, the pay- ments to A. being duly made, not to foreclose the mortgage during the pendency of certain charter-parties between B. and C. Under this authority to B. from A., he made to C. the charter-parties referred to. One covered the contemplated voyage to L. The other pro- vided for another voyage from N. to a safe port in the M. Sea, or to a direct port between X. and G. ; and that the charterer should pay a certain sum for the round voyage, part on the delivery of the outward cargo, and the bal- ance on the delivery of the homeward cargo. The following clause was then written in : " The within-named vessel is under charter to C. to load for a port between G. and X., and this present charter-party is made and concluded upon for three successive voyages with same range of ports and all conditions for each round voyage as the within charter- party, and to take effect upon the termination of each respective voyage." The following was also written in : " Charterer to advance the captain, at the beginning of each of the three round voyages and at the time the vessel has commenced loading, the amount " above mentioned, "payable to the order of A." The two payments specified in the contract between A. and C. were duly made before the commencement of the voyage to L. Be- fore the first of the three voyages was begun, B and C, without A.'s knowledge, agreed in writing that the charterer might substitute for that voyage another voyage, the amount of the charter and the other conditions remain- ing the same. The vessel started on the sub- stituted voyage, and on her return was lost. Neither of the three instalments specified was paid. Held, in an action on the contract, by A. against C., that A. could recover the first instalment only. Cutler v. Lennox, 137 Mass. 506 (1884). 5. C. delivered a certificate of twelve shares of stock in a corporatirn to B. , a broker, for the purpose of speculation on joint account. B. sold the stock and received the proceeds, but falsely represented to U. that he had the stock in his possession, and paid C. the dividends on it for several years. B. died, and A., his wife, was appointed administratrix of his estate. After her appointment, C. applied to her for his stock, and A., with funds belonging to B.'s estate, bought twelve shares of said stock, had it transfeiTed to C, took the certificate in C. 's name, and delivered it to him, C. there- upon signing and giving to A. the following instrument: "Received of A., adm'x of the estate of B., twelve shares of .... stock; I agree to hold her hai-mless in any manner from loss arising out of her above action." A. charged the cost of this stock in her first account as administratrix, but the Probate Court disallowed it, and no appeal was taken from such decree. Subsequently the estate of B. was adjudged insolvent. Commissioners were appointed, whose report of the allowance of creditors' claims was confirmed. The sec- ond account of the administratrix, showing a balance in her hands, was allowed; and an order of distribution to the creditors was made. No claim was proved against the estate for or on account of said stock. C. executed the above instrument upon the information and in the belief that the shares named therein were the identical shares which he had pre- viously owned, and which had been found by A. and returned to C. as his property; and A. understood her husband's estate to be insol- vent before delivering said shares to C. Held, that A. could not maintain an action on the instrument against C. Brown v. Fales, 139 Mass. 21(1885). 6. A. and B. entered into a contract, by which A. agreed to sell B. a ti-act of land, and B. agreed to build ten houses upon it. A. was to advance a certain sum upon each house as the work progressed. B. was to give a mortgage of a certain amount upon each house, and, when the houses were finished, A. was to sell the mortgages, and, after taking out what was due him for the land and for advances, insurance, and other expenses, to pay the balance to B. B. gave C. an order on A. directing him to pay C. the amount of his bill for certain materials furnished for the houses, not exceeding a sum named, "to be paid when mortgages are placed, and from the amounts realized from said mortgages above the amount due A. for land and ad- vances." This was accepted by A. in the following terms : " I will reserve the amounts herein specified from the mortgages herein referred to, and from the amount left after deducting the payments due A. for land and advances, said amount to be paid when the mortgages are permanently placed by me." B. failed to perform his contract, and A. was obliged to expend a large sum to complete it. A. assigned two of the mortgages at their full value, transferred seven of them 229 CONTRACT, V. 230 as collateral security, on ■which he received about half of their iace value, and held the remaining one himself. B. then conveyed to A. eight of the lots of land, being those not covered by the two mortgages assigned as above stated, by a warranty deed, containing the clause that the premises were conveyed subject to eight mortgages, which the grantee assumed and agreed to pay as part of the con- sideration. There were unpaid taxes upon the premises, which A; was obliged to pay. The amount of the two mortgages assigned for their full value, and the net value of the eight lots covered by the other mortgages, after deducting the amounts paid out by A., were not sufficient to pay him for his land and advances. Held, that C. could not maintain an action against A. on the order accepted by him. Fiske v. Joy, 141 Mass. 311 (1886). 7. B., the owner of a stock of goods in a store, made a contract in writing with C, by which B. agreed to sell, and C. to buy, the goods for $14,214.94. C. was to have posses- sion of the goods, with full authority to sell the same as a retail dealer. For the security of B., the legal title of the goods was to re- main in B., until $14,214.94 was paid, with interest at seven per cent; and the title was to vest in C. "in the proportion to the amount which at any time he shall have paid on ac- count of said $14,214.94, and interest." C. covenanted and agreed that B. should be " the legal owner of a fractional part of the stock of goods in said store, whether it be these goods or goods subsequently purchased by said C, which fractional part shall at all times bear the same proportion to the bal- ance of $14,214.94, and interest, then unpaid and due from said C ., that the whole amount of goods now bears to said sum of $14,214.94." C. was to pay, out of the proceeds of sales made by him, the expenses of the store, and was to have the right to use the proceeds of sale to purchase new goods in the regular course of business, and to take from the pro- ceeds a certain sum each month for his own use. C. was also to take an account of stock twice a year, and to pay over to B. the net proceeds of the goods sold. C. was also to keep the , goods and other goods afterwards purchased insured, the insurance to be pay- able to B., who, in case of loss, was to collect the insurance, pay to himself the amount then due from C, and pay the balance to C; and if he was unable to collect the full amount, B. was to bear "that proportion of that loss which the amount due to him from said C. bears to said sum of $14,214.94, with interest at the rate aforesaid, at the time of said loss." C. took possession of the goods, made sales, bought other goods, and made partial pay- ments, when B., for breach of condition on the part of C, entered and took possession of all the goods then remaining, against C.'s con- sent. At this time the value of the goods in the store was $14,500, of which about $6,000 worth had been bought by C, but not paid for. At the time the goods were sold by B. to C. the price stated was their fair value. Held, that the contract was one of a condi- tional sale, and was not in effect a mortgage. Held, also, that the clause as to B.'s interest in the goods was to be interpreted as if it read, "B.'s fractional part shall at all times bear the same proportion to the whole amount of goods as the balance of $14,214.94, and interest, then unpaid, bears to $14,214.94." Held, also, that if the contract was not actu- ally fraudulent, as against the creditors of C, and B. rightfully took possession of the goods, before they were attached and proceedings in insolvency were instituted, and retained pos- session, his title to the extent of his interest was good against C.'s assignee in insolvency; and that this applied to the after-acquired goods, as well as to those sold by B. Blan- chard V. Cooke, 144 Mass. 207 (1887). v. Performance and Breach. 1. A., an advertising agent, entered into a written contract with B. , by the terms of which A. was to insert for B. an advertisement in a specified position in a certain number of lists of a newspaper union, which embraced a large number of papers, for the term of one year in consecutive weeks, for a sum stated, to be paid in advance by B. accepting four drafts of A. of a certain amount, payable in three, six, nine, and twelve months; to furnish B. copies weekly of the different papers ; to ex- amine the files of the lists and to make no charge for the advertisement when it was not in the specified position; and in case, from any cause, A. should be unable to carry out the provisions of this agreement, he agreed to return at once to B. either his acceptances or the full amount of the same in money, said money to be held by him until the return of the acceptances. A. failed to insert the ad- vertisement in consecutive weeks, and to fur- nish B. with all the papers he was required to furnish. The first three drafts were paid by B. Held, in an action against B. on the fourth draft, that the inability to perform the con- tract, provided for in the clause above stated, meant an absolute inability, and not a mere failure to perform in subordinate details; that the action could be maintained; and that B. was merely entitled to recoup the damages he had sustained by A.'s failure to comply with the terms of the agreement. Kenworihy v. Stevens, 132 Mass. 123 (1882). 2. A written agreement recited that A. had bought of B. a fractional part of a vessel, with the understanding that B. was " to take her back at the end of the voyage " at a cer- tain rate; and that A. agreed that B. should "have her at that rate." In an action for breach of this agreement, by A. against B., it appeared that, after the vessel had ended that voyage and started on another, A. tendered to B. a bill of sale of his share in the vessel, but the vessel then had been abandoned and sunk in the ocean. Held, that the action could not be maintained, the vessel not being in exist- ence. Thomas v. Knowles, 128 Mass. 22 (1879). 231 CONTEACT, V. 232 3. A. agreed to sell, and B. to purchase, A.'s milk route in certain towns, delivery to be made on a day named. In an action by A. against B. for breach of the agreement, in re- fusing to take the route and pay the consider- ation, A. testified, on cross-examination, that after he made the agreement, and before the day fixed for delivery, he bargained with C. to purchase his milk route, intending to run the same after B. took his route; that C.'s route comprised a portion of the same teiTi- toi-y which he sold to B. ; that; he was not to disturb any of the customers of the route sold to B., but he considered he had a right to ob- tain new customers on the same route ; that he told B. he had bargained for C.'s route, and also told him he could not hold the customers in one of the towns unless he got there early in the morning. Hdd, on this evidence, that a verdict for the defendant was rightly directed. Munsey v. Butter field, 133 Mass. 492 (1882). 4. In an action for breach of an agreement by the defendant to support the plaintiff dur- ing his life, it appeared that the defendant supported the plaintiff in the former's house for five years, when the house was destroyed by fire ; and that from the date of the fire to the date of the writ, a period of about two years, the defendant furnished no aid or sup- port to the plaintiS. The judge instructed the jury that, "if the defendant for a period of about two years neglected to furnish aid or support to the plaintiff, without any fault of the plaintiff, the plaintiff might treat the con- tract as at an end, and recover damages for the breach of the contract as a whole." Held, that the defendant had no ground of excep- tion. Parker v. Russell, 133 Mass. 74 (1882). 5. If a contract by one person to support another for his life is a continuing contract, it is also entire in its character, and a com- plete breach will justify the party entitled to the support to treat the contract as absolutely at an end, and to recover damages for its whole value. He is neither obliged to renew it by making subsequent demands, nor is he obliged to accept support afterwards tendered. Amos V. Oakletj, 131 Mass. 413 (1881); Par- ker v. Russell, 133 Mass. 74 (1882). 6. So where A. makes a contract with B., by the terras of which B. is to cultivate A.'s farm on shares for one year from a certain date, and, before the end of the year, A. orders B. off the premises, refuses to allow him to go on under the contract, and lets the land to a third person by a written lease for a year, B is entitled to maintain an action at once against A. and to recover as damages the value of the contract. Even if the contract is to be construed as creating a partnership, the rule that no action at law can be maintained be- fore a winding up has no application, the cause of action being the complete repudiation of the contract, and there being neither joint debts nor complicated accounts, and the case being simply that of a contract broken after part performance by the plaintiff. Jewett v. Brooks, 134 Mass. 505 (1883). 6. The plaintiff agreed to manufacture machines for the defendant, and to deliver them to his order, the defendant to pay the expense of transportation. Held, that the agreement was performed by manufactur- ing the machines and holding them subject to the defendant's order. Boston §• Fair- haven Iron Works v. Montague, 135 Mass. 319 (1883). 7. The plaintiff manufactured a machine for the defendant, under an agreement by which the defendant was to pay the price of manufacture. The defendant did not take the machine, and it was subsequently sold by the plaintiff's assignee in bankruptcy. Held, that the plaintiff could maintain an action for the agreed price on giving the defendant credit for the proceeds of the sale. Boston If Fairhaven Iron Works v. Montague, 135 Mass. 319 (1883). 8. The plaintiff manufactured machines for the defendant under a contract. After the machines were delivered to purchasers, they were returned for some fault or defect, and were repaired. Held, that the mere fact that these repairs were made after the contract had terminated would not prevent the plaintiff from maintaining an action for the repairs. Boston §• Fairhaven Iron Works v. Montague, 135 Mass. 319 (1883). 9. The buyer of land at a sale by auction is not bound to pay the purchase money and ac- cept the deed tendered, and leave the seller to clear up defects in the title afterwards with the aid of the purchase money. Gormleyy, Kyle, 137 Mass. 189 (1884). 10. If the parties to a sale of land by auc- tion meet on the day fixed for the performance of the contract, and the seller, without wait- ing for a formal request by the buyer, tenders a deed of the land, which is insufficient to convey a good title, and the buyer refuses to accept it upon that ground, no formal tender by the buyer of the balance of the purchase money, or offer to perform on his part, or re- quest to the seller for performance, is neces- sary, if the buyer is ready to perform, in order to entitle him to maintain an action against the seller for the portion of the pur- chase money paid at the sale. Gormley v. Kyle, 137 Mass. 189 (1884). 11. A., his minor son, and B. entered into a written agreement, by the terms of which A., with the assent of his son, in considera- tion of the covenants of B., agreed that the son should work for B. from the date of the agreement until the son should arrive at full age; and B. agreed to pay A. a certain sum monthly during the term, in full compensa- tion for the services of the son, and, in con- sideration thereof, A. bound himself in a certain sum to hold B. harmless from all obli- gations entered into by signing an indenture of apprenticeship, executed by the same par- ties on the same day, binding the son to B. ; and it was further agreed that all compensa- tion should be paid to the son. Held, that A. could maintain an action against B. for_ a breach of the agreement; and that the provis- ions of the indenture of apprenticeship could not be imported into the agreement so as to affect B.'s liability upon his covenants 233 CONTRACT, VI. 234 therein. Dickinson v. Talmage, 138 Mass. 2i9 (1885). 12. The coudition of a mortgage of a farm having been broken, the mortgagee cove- nanted with the mortgagor, for the term of three years, not to demand payment of the mortgage note, not to begin proceedings to foreclose the mortgage, and not to eject the mortgagor from the farm ; and the mortgagor covenanted that he would, during the three years, use and expend upon the farm the hay and fodder produced upon it for the use of the farm in the usual course of husbandry. Before the expiration of the three years, the mortgagee assigned the mortgage to a third person, who foreclosed the mortgage. Held, in an action by the mortgagor against the mortgagee, that there was a breach of the de- fendant's covenants. Held, also, that evi- dence, oifered in defence, that, while the plaintiff was in possession of the farm, there was not as much hay and fodder raised on the farm as it was capable of producing in the usual course of husbandry, or as was usual on like farms in the neighborhood, was rightly excluded. Held, also, that the plaintiff could properly testify what the farm was worth to him with his stock upon it from the date of the assignment to the end of the three years' term, it appearing that the farm was used as a milk farm, and that the plaintiff sold a cei-- tain number of cans of milk each day. Man- ning V. Fitch, 138 Mass. 273 (1885). 13. A. and B. executed an agreement, by which B. agreed to convey, as executor, a cer- tain parcel of land to A. , and A. agreed to pay for the same within four months fi-om the date of the agreement. In an action by A. against B. for breach of this agreement, it appeared that, before the expiration of the four months, A. made an arrangement with a third person for a loan of the sum of money necessary to enable him to perform his part of the contract, if B. could give a good title to the land; and that B. was informed of this. B. took no action to enable him to sell the land until after the expiration of the four months, when he obtained a license from the Probate Court, authorizing him to sell the land, and he sold it to a third person. Held, that the action could not be maintained. Brown v. Davis, 138 Mass. 458 (1885). 14. A contract for the sale of land provided that ten days were given to examine the title, and that if, upon examination of the records, it should appear that any material thing was necessary to be done in order to perfect the title, which the seller was unable to do within a reasonable time, not exceeding sixty days, the sale should be void at the option of either party. Held, on a bill in equity for specific performance, that the purchaser was entitled to a good record title, and was not obliged to accept a title by adverse possession. Noyes V. Johnson, 139 Mass. 436 (1885). 15. It B. agrees in writing to convey land to A. for other land and a sum of money, B.'s conveyance of the land to a third person, when A. is in no default, gives A. a right of action, although there has been no tender on his part; and it is no defence that A. has not shown that he was able to pay the money. Lowe v. Harwood, 139 Mass. 133 (1885). 16. B. agreed in writing, on November 8, to exchange farms with A. On November 12, B. wrote to A. that his wife would not sign a deed, and he would have to give up the trade. After other correspondence, in answer to a notice from A. that he should hold B. to the agreement, B. wrote, on November 24, that the bargain depended on his wife's consent, and she refused, and that wound up the busi- ness. Held, that this amounted to a repudia- tion on B.'s part, which authorized A. to bring an action without making a tender. Held, also, that, no time of performance having been stated in the agreement, it was to be performed within a reasonable time; and that an action brought on December 12 was not prematurely brought. Lowe v. Harwood, 139 Mass. 133 (1885). 17. A. consigned several lots of goods to B. at different times, to be sold by B. for A.'s account, at prices fixed in the invoices. On two certain days, B. reported to A. that he had sold the goods then on hand at prices below those limited in the invoices, both of which sales were promptly repudiated by A. by tele- gram and letter, and the reported sales were thereupon cancelled by B. Subsequently, B. wrote to A., asking him to allow sales on the present market. A. refused to give permis- sion for such sales, and offered to pay back advances made on the goods by B., and with- draw the consignment, if B. was not willing to wait. Afterwards B., without further cor- respondence with A. , sold the goods at prices less than he was authorized to do. A. refused to approve the sale; and, upon B. declining to cancel the same, brought an action against him for breach of the contract. At the trial, B. offered evidence to show that, in previous transactions between the parties, A. liad rati- fied sales by B. at lower prices than those lim- ited in the invoices. Held, that this evidence was properly excluded. Loehnberg v. Atherton, 141 Mass. 578 (1886). VI. Rescission ; Waiveb ; Merger ; Dis- charge. 1. A contract, the duration of which is not fixed, to pay a reasonable compensation for the board, tuition, and clothing of a person whom the promisor is not bound to support, is terminated by the death of the promisor ; and an action cannot be maintained against his executor for anything subsequently furnished, although the executor has not given notice of the death. Browne v. McDonald, 129 Mass. 66 (1880). 2. An agreement by B. to tan and curry a lot of hides received from A., to sell them and to pay a certain fixed sum to A. from the pro- ceeds, is not, necessarily, a personal contract which is terminated by B.'s death before he has finished the work upon the hides, so as to justify A. in resuming possession of them. B.'s administrator might equally well finish 235 CORONER. 236 the work. White v. Allen, 133 Mass. 423 (1882). 8. A., in anticipation of being appointed guardian of an insane person, who was then at an asylum, promised to pay the treasurer of the asylum for the board and supplies fur- nished the insane person, to remove him when discharged, and, if he was removed uncured, to pay the board for a certain length of time. A. was soon appointed guardian, but after- wards resigned, and a new guardian was ap- pointed. Held, that A. 's liability under the contract was not ended by the appointment of the new guardian. Massachusetts General Hospital V. Fairbanks, 182 Mass. 414 (1882). 4. If the parties to an executory contract mutually release one another from its per- formance, and subsequently enter into the same contract in form, it is the new contract which subsists between the parties, and the old one is as effectually discharged, released, and abrogated as if the new one had not been entered into. ' Dean v. Skiff, 128 Mass. 174 (1880). 5. A written contract, which by its terms has expired, cannot be considered as existing afterwards from the fact that it has been .so treated by the party against whom it is sought to be enforced, or from the fact that he has made oral statements that he was bound by it. Hopedak Machine Co. v. Entwislle, 138 Mass. 448 (1882). 6. If a person is induced, by the false and fraudulent representations of the agent of an insurance company, to take a policy of insur- ance in the company, and to pay the premium thereon, he may rescind the contract, and, in an action against such agent, recover as dam- ages the amount of the premium so paid. Hedden v. Griffin, 136 Mass. 229 (1884). 7. If one party to a contract under seal, which has been partly performed by the other party, totally repudiates it when the other party is not in default, the latter may rescind the contract, and maintain an action to re- cover back money paid by him under it. Bal- lou V. Billings, 186 Mass. 807 (1884). 8. G., who was in the employ of a firm, signed the following agreement: "I hereby agree to stand and pay to" the firm "one half the loss over and above ten dollars on all bills trusted by me since above date." The consideration of the agreement was the con- tinuance of his employment at a certain weekly salary. On the same day, but after the agree- ment was signed, the members of the firm filed a petition in bankruptcy, and were duly adjudicated bankrupts and received their dis- charge; and they carried on business as co- partners after their bankruptcy under the same name. After the filing of the petition in bankruptcy, and while in the employ of the firm, G. sold its goods upon credit to certain persons, the amount of which sales became a loss to the firm. Held, that the firm could maintain an action against G. upon the agree, ment. Freeman v. Griggs, 137 Mass. 75 (1884). 9. If an oral contract is entered into, and, before any material part of it has been per- formed, it is reduced to writing, the oral con- tract is merged in the written contract. Berqin v. Williams, 138 Mass. 544 (1885). 10. Special stock in a corporation was ille- gally issued to a creditor of the corporation, who subsequently received dividends on the stock. The corporation, at two subsequent meetings, attempted, without success, to cure the defect, and to make a valid issue of stock. Twenty-seven months after the first issue, and two months after the last attempt to cure the defect, the creditor, shortly before the insol- vency of the corporation, gave notice that he rescinded the contract, and tendered back the dividends received. Held, that the election to rescind was exercised within a reasonable time; and that the creditor could prove the amount of his debt against the insolvent estate of the corporation. American Tube Works y, Boston Machine Co., 139 Mass. 5 (1885). Of the effect of laches upon the right to rescind a contract induced by fraud, see Laches. CONTRIBUTION. Between insurance companies, see Insub- ANCK. Between joint tortfeasors, see Joint Tort- feasors. Between partners, see Partnership.. Between sureties, see Surety. See also other leading titles. CONVERSION. See Trover. CONVERSION (EQUITABLE). See Devise; Executor. CONVICTION AND SENTENCE. See Indictment; also leading titles of the various crimes and offences. COPYRIGHT. See Literary Property. CORONER. The office of coroner was abolished, and its duties transferred, by St. 1877, c. 200. See Medical Examiner. 237 COEPORATION, I., 11. 238 CORPORATION. I. Different Kinds of Corporations; Municipal Corporations. II. How created; Act of Incorpora- tion ; Effect of ; Membership. III. Transfer of Shares. IV. Meetings; Powers and Liabilities OF Officers. V. Powers, Rights, and Liabilities of Corporations; Ultra Vires. VI. Rights and Liabilities op Mem- bers. VII. Contracts by and with Corpora- tions. VIII. Actions by and against Corpora- tions; Pleadings and Evidence. IX. Forfeiture of Charter, and Dis- solution OF Corporations. X. Foreign Corporations. For the decisions respecting Banks, Bene- ficiary Associations, Canals, Insurance Com- panies, Parishes, Railroads, School Districts, and Voluntary Associations, see those titles respectively. 1. Different Kinds of Corporations; Municipal Corporations. See Town ; Way. II. How created; Act of Incorpora- tion; Effect of ; Membership. Power of Legislature to amend, alter, or re- peal charter, see Constitutional Law, I. (a), pi. 1. For decisions involving the application of principles of constitutional law to legislative enactments concerning corporations, see Con- stitutional Law. 1. A joint stock company formed under N. y. Sts. 1849, 0. 258, 1851, c. 455, and 1853, c. 153, is not a corporation, but a copartner- ship. This has been uniformly held by the courts of this and other States. Boston If Albany Railroad v. Pearson, 128 Mass. 445 (1880). 2. A statute enacted that four persons named "are hereby made a corporation," and fixed the capital stock at ^50,000, with liberty to increase it by vote of the corporation to $150,000. The persons named in the statute met, organized by the choice of a chairman and clerk, accepted the act of incorporation, appointed a committee to receive subscrip- tions, and voted that, when subscriptions were received to the amount of $50,000, the clerk should call a meeting of the subscribers. A subscription paper was. drawn up reciting the act of incorporation, stating ,the capital stock to be $50,000, that the signers associated themselves togetherto form said corporation, and agreed with the corporation to take the number of shares affixed to their respective names, and to pay therefor $100 a share at such times as should be determined on the organization of the corporation. The paper was signed by a number of persons, and the number of shares set opposite their names rep- resented nearly $100,000. At a meeting of the subscribers, a committee appointed for the purpose reported the names of fourteen per- sons whose subscriptions aggregated $50,000. These names were taken promiscuously, and not in the order of their subscriptions. By- laws were then adopted. On the motion of & subscriber, not one of the fourteen, the capi- tal stock was increased to $100,000; all the subscribers were admitted with the rights and privileges of stockholders; directors were chosen, and an assessment was levied on the capital stock, which was paid. At a subse- quent meeting another assessment was lev- ied. Held, in an action against one of the fourteen persons whose names were report- ed by the committee as above stated, to re- cover his proportion of this assessment, that the corporation was never legally organized, and that the action could not be main- tained. Katama Land Co. v. Holley, 129 Mass. 540 (1880). 3. A person who contracts with a de facto corporation cannot, in an action against him on the contract, impeach the legality of its organization. Butchers' Sf Drovers' Bank v. McDonald, 130 Mass. 264 (1881). .4. At the trial of a writ of entry brought by a corporation, a witness testified that he was its clerk, and that two books which he pro- duced were the records of the corporation kept by him, but these books were not other- wise offered in evidence. The demandant also put in evidence a mortgage deed of the demanded premises from a third per- son to itself, in which it was described as a corporation, and a subsequent deed exe- cuted by the tenant, which recited that the demandant was the holder of that mort- gage, and in which he agreed to pay the mortgage debt to " said corporation," Held, that there was evidence of the corporate existence of the demandant. Provident Insti- tution for Savings v. Burnham, 128 Mass. 458 (1880). 5. The constitution of a charitable corpora- tion provided that any person could apply for admission by paying an admittance fee, and; when declared elected, could, after signing the constitution, vote at all meetings, and be eligible to office ; and that each member should pay a certain amount yearly to the corpora- tion. Held, that signing the constitution was not a prerequisite to membership; and that an action would lie by the corporation against a member, who had not signed, for his yearly- dues. United Hebrew Association v. Benshi- mol, 130 Mass. 325 (1881). 6. A holder of special stock of a corpo- ration, which is illegally issued, cannot, by estoppel or otherwise, become a member 239 CORPORATION, III. 240 in respect to such shares. -American Tube Works V. Boston Machine Co., 139 Mass. 5 (1885). III. Transfer of Shakes. 1. A., ■who owned stock in a national bank, transferred it to B. to hold in trust for him, and a new certificate was issued to B., in ■which the stock was declared to be transfer- able only on the books of the bank by him or his attorney, on the surrender of the certifi- cate. The bank had no notice of the trust. B. indorsed upon his certificate an assignment to A., and delivered it to him. The stock continued to stand in the name of B. on the books of the bank, and he voted on it and re- ceived the dividends thereon, which he paid to A., and acted as shareholder. B. became insolvent, and an assignee in insolvency was appointed. The stock had been attached pre- viously by a creditor of B., and an order was afterwards made, on the application of the as- signee and the creditor, under Gen. Sts. c. 118, § 45, that the lien created by the attach- ment should continue. A. afterwards offered to surrender the certificate to the bank, and demanded a transfer of the stock to himself. The by-laws of the bank provided that the stock should be assignable only on its books, and that a transfer-book should be kept in which all assignments and transfers of stock should be made. Held, on a bill in equity by A. against the bank to compel a transfer of the stock, that the stock did not pass to the assignee in insolvency of B. ; that A. was entitled to the transfer; and that the order continuing the lien of the attachment did not affect the case. Sibley v. Quinsigamond Bank, 133 Mass. 515 (1882). 2. The owner of shares of stock in a national bank delivered his certificate of stock, to- gether with a power of attorney to transfer the same, to secure his promissory note ; and, more than four months afterwards, became a bankrupt, and an assignee in bankruptcy was appointed. Subsequently, the note being due and unpaid, the payee, after notice to the bankrupt and his assignee, sold the stock by public auction, under Gen. Sts. c. 151, § 9. The assignee subsequently demanded of the bank a transfer of the stock to himself, but the bank refused, and afterwards transferred the stock to the purchaser at the sale. The by-laws of the bank provided that its stock should be assignable only on its books, subject to the restrictions and provisions of U. S. Kev. Sts. § 5139, and that a transfer-book should be kept, in which all assignments and transfers of stock should be made; and that, when stock was transferred, the certificates thereof should be returned to the bank and cancelled, and new certificates issued. Held, that the assignee could not maintain an action against the bank for the conversion of the stock; that the delivery of the stock to the payee of the note, with the execution of the power of attorney, conferred a power cou- pled with an interest, which bankruptcy could not affect. Held, also, that evidence that it was agreed, at the time of the original delivery of the certificate and power of attorney, to keep the transaction secret, in order that the transferrer, who was a director of the bank, might obtain a false credit, was inadmissible, in the absence of evidence that the bank had knowledge or notice of such agi-eement. Dick- inson V. Central Bank, 129 Mass. 279 (1880). 3. If a corporation unreasonably refuses to examine the evidence on which a party bases his right to demand a transfer of stock to him- self, and unnecessarily compels a suit to be brought in order that the transfer may be compelled under a decree, the coi'poration may be properly charged with the costs of the suit. lasigi v. Chicago, Burlington, §■ Quincy Rail- road, 129 Mass. 46 (1880). 4. A sale of stock in a corporation is valid against a subsequent attaching creditor of the seller, although no transfer of the stock is made on the books of the corporation, in the absence of an express provision of statute, or of the charter of the corporation, requiring such transfer to be made. Boston Musk Hall V. Cory, 129 Mass. 435 (1880). 5. If the by-laws of a corporation require a transfer of stock to be under seal, a transfer signed in blank by the stockholder, with the word " seal " enclosed in brackets, is Of no ef- fect. Bishop V. Olobe Co., 135 Mass. 132 (1883). 6. An executor, whose power to dispose of the estate of his testator was not limited by the will, fraudulently transferred a certiflcatie of stock in a corporation, standing in the name of the testator, to a bank, " as collateral for the note of A.," who was a son of the testa- tor, but to whom the estate was not indebted. The note, signed by A., gave the bank a power to sell the stock in case of a default, and provided that the proceeds, after paying the debt, should be paid to A. The transfer was taken to the corporation, and, after as- certaining that the executor was duly ap- pointed, and that A. was an heir of the testator, it recorded the transfer, and issued a new certificate to the bank, " as collateral for the note of A." The note of A. not being paid, the bank sold the stock by auc- tion, and, on payment of its debt, transferred the certificate to A., who assigned it to the auctioneer, who in turn assigned it to the pur- chaser. The balance of the proceeds was paid to A. ; and the corporation, on presenta- tion of the former certificate and the transfers, issued a new certificate to the purchaser. Held, on a bill in equity, by the administra- tor de bonis non with the will annexed of the estate of the testator, against the corporation, to compel it to issue a new certificate for the benefit of the estate, that these facts did not show any negligence on the defendant's part in issuing either the certificate to the bank or that to the purchaser at the sale by auction; and that the bill could not be maintained. Crocker v. Old Colony Railroad, 137 Mass. 417 (1884). 7. If a trustee under a will, on demanding of a coi-poration a transfer of shares of stock standing in the name of his testator upon the 241 CORPORATION, IV. 242 books of the corporation, presents to the corporation certified copies o£ the wUl and of his appointment as trustee as evidence of his authority to demand a transfer, the cor- poration has no right to require that the copies shall remain in its custody. Bird v. Chicago, Iowa, §• Nebraska Railroad, 137 Mass. 428 (1884). 8. A., the owner of certain shares of the stock of a manufacturing corporation, de- livered the certificate of the shares to B., for the purpose of transferring the stock to B. as collateral security for the payment of a debt. The printed blank on the back of the certifi- cate was signed by A., but was not filled up. The certificate contained the following pro- vision, which was prescribed by a by-law of the corporation : " Transferable only on the books of the company, in person or by power of attorney, on surrender of this certificate." B. wrote to the corporation, notifying it that he held the certificate, and requesting that the stock be transferred to him on the books of the corporation. The clerk of the corpora- tion wrote on the stub from which the certi- ficate was cut as follows: "Memo. Held by B. See letter. " And the letter was pinned to the stub. The corporation had no book in which it recorded transfers of stock, but was accustomed to keep memoranda of attach- ments and the like on the stubs from which certificates had been taken. Subsequently C. caused these shares to be attached on a writ against A., with knowledge of the above- named memorandum and letter. Afterwards B. filled up the blank on the certificate and sent it to the corporation, demanding that the transfer be recorded and a new certificate issued, which demand was refused on account of the attachment. Seld, on a bill in equity, that, under the Pub. Sts. c. 106, § 30, and c. 105, § 24, C. was entitled to hold the stock as against B. Newell v. Williston, 138 Mass. 240 (1885). 9. An owner of stock in a manufacturing corporation, and holder of a certificate thereof in his own name, delivered the certificate, with a printed assignment in blank, signed by him, indorsed upon it, to A. for the pur- pose of transferring the stock to him as col- lateral security for a debt. While A. so held the certificate, and before the assignment had been filled out, and before notice of the assign- ment had been given to the corporation, the stock was attached by B., who had no notice of the assignment, as the property of the as- signor. The certificate contained on its face the words, " Transferable only on the books of the company, in person or by power of attor- ney, on surrender of this certificate. ' ' Held, on a bill in equity, that, under the St. of 1870, c. 224, § 26, B. was entitled to hold the stock as against A. Central National Bank v. Williston, 138 Mass. 244 (1885). 10. Shares of stock in a corporation are not necessarily extinguished by being trans- ferred to the corporation, so that they cannot be reissued ; nor the amount of its capital stock thereby reduced. Commonwealth v. Bos- ton If Albany Railroad, 142 Mass. 146 (1886). IV. Meetings; Powers and Liabilities OF Officers. 1. The treasurer of a savings bank, by vir- tue of his office merely, has no implied author- ity to transfer to a purchaser a promissory note belonging to the bank. Holden v. Up- ton, 134 Mass. 177 (1883). 2. A treasurer of a savings bank may direct a suit to be brought on an overdue note ; and if, judgment being obtained, and land taken on execution set oS to the bank, the attorney of the bank, acting under the direction of the treasurer and of a trustee, to whom such mat- ters have been intrusted, accepts seisin, and brings a writ of entry to recover possession of the land, it is no objection to the proceed- ings that a previous vote of the trustees authorizing them has not been passed. Bristol County Savings Bank v. Keavy, 128 Mass. 298 (1880). 3. Where the treasurer of a savings bank, who is also a trustee and a member of its finance committee, is intrusted by the bank with the duty of selling its property, he acts as agent of the bank, and is bound to the de- gree of diligence and good faith which should govern the conduct of agents generally. He cannot, by claiming to act as trustee and member of the finance committee, escape lia- bility to the bank, if he sells the property for less than the best price that might have been obtained. Greenfield Savings Bank v. Simons, 133 Mass. 415 (1882). 4. A treasurer of a corporation, who has sold, for its benefit, a bond issued by it, and who is unable or refuses to disclose the exact amount for which he sold it, is chargeable in equity for at least the full market value of the bond at the time of the sale. Parker v. Nick- erson, 137 Mass. 487 (1884). 5. The receivers of a corporation are not estopped, in a suit in equity against the for- mer treasurer of the corporation, to recover what is in fact due from him to the corpora- tion, by the acceptance by the directors of the report of an auditing committee on the treas- urer's accounts, where the report is based upon a fictitious entry on the books of the cor- poration to the credit of the treasurer, which was supposed by the committee to be a proper entry. Parker v. Nickerson, 137 Mass. 487 (1884). 6. If the treasurer of a corporation fails to pay over to it money ^vhich he has collected, and the corporation is thereby compelled to borrow money, and to pay a rate of interest greater than six per cent, the treasurer is not liable in equity to pay on the sums due from him more than six per cent interest, if the bill does not seek to recover any profits he has made. Parker v. Nickerson, 137 Mass. 487 (1884). 7. A treasurer of a corporation is not en- titled to compensation for indorsing its prom- issory notes in order to procure their being discounted, in the absence of a contract on his part with the corporation to pay him there- for. Parker v. Nickerson, 137 Mass. 487 (1884) 243 CORPORATION, V. 244 8. If the treasurer of a oorporation buys a quantity of coal on his own account, with no intention of selling it to the corporation, and at a time when it is not his duty, as treasurer, to buy coal for the corporation, and he after- wards sells it to the corporation at a price which is higher than that which he paid, but . which is its fair market value at the time, he is not chargeable in equity for the difference in price between what he paid for it and what he sold it atj Parker v. Nickerson, 137 Mass. 487 (1884). 9. The liability for damages arising from the infringement by a corporation of letters patent is not, before judgment is obtained against the corporation, a " debt," within the meaning of the St. of 1870, c. 224, § 38, making the officers of a corporation liable for its debts in certain cases. Child v. Boston §• Fairhaven Iron, IForfa,. 137 Mass. 516 (1884). 10. A vote of a corporation to issue " spec- ial stock," at a meeting called, under the St. of 1870, c. 224, § 26, to consider whether the corporation will issue " preferred stock," is invalid. American Tube Works \. Boston Ma- chine Co., 139 Mass. 5 (1885). 11. A vote of a corporation to issue special stock, passed at a meeting held under the Pub. Ste. c. 106, § 42, is invalid, if the record of the meeting fails to show that three fourths of the general stockholders voted for such issue. American Tube Works v. Boston Ma- chine Co., 139 Mass. 5 (1885). 12. A loan made by an insurance company to one of its finance committee may be made in good faith and in the usual course of bus- iness, although it is in violation of the Pub. Sts. c. 119, § 47, and of a rule of the direct- ors. Bowditch V. New England Life Ins. Co., 141 Mass. 292 (1886). 13. Section 47 of the Pub. Sts. c. 119, pro- viding that "no member of a committee or officer of a domestic insurance company, who is charged with the duty of investing its funds, shall borrow the same," is directory only; and if such an officer borrows money of such a company, and fraudulently pledges for the loan the negotiable bonds of an innocent third person, the company acquires title to the bouds, although the loan is in violation of the statute and of a rule of the directors, if it acts in good faith and without notice of the fraud. Bowditch V. New England Life Ins. Co., 141 Mass. 292 (1886). 14. The directors of a corporation author- ized certain promissory notes of the corpora- tion to be issued. The treasurer issued them under the seal of the corporation. In an ac- tion in which the plaintiff, declared on them as sealed instruments, the issue was whether the use of the seal had been ratified. On this point there was evidence that the notes were issued in 1875; that in 1877 and 1878 two of the directors, acting as a committee of the directors, examined them to see if they were genuine; that they pronounced them to be genuine, and from 1878 to 1883 one of them, as treasitter, paid the interest upon them semiannually, and this fact appeared in his annual reports to the corporation, which were accepted by the stockholders; and that this evidence was uncontradicted. Held, that there was sufficient evidence of ratification to go to the jury; and that a substantive act done by the directors with intent to ratify the act of the treasurer was unnecessary. St. James Parish v. Newburyport Horse Railroad, 141 Mass. 500 (1886). 15. A mortgage of all the personal property of a manufacturing corporation, except its book accounts, given by the president and treasurer of the corporation to secure the pay- ment of a pre-existing debt, without previous authority or subsequent ratification by, or the knowledge and acquiescence of, the directors of the corporation, is invalid, although the president and treasurer was also the general manager of the corporation, and owned all but two shares of its capital stock. England v. Dearborn, 141 Mass. 590 (1886). 16. In an action upon a written contract executed in the name of a corporation by its president, it appeared that there was no vote, either of the corporation or of the directors, giving the president authority to execute the contract; that, under the by-laws, the direc- tors might confer upon him such authority; that there were five directors, of whom the president was one; and there was evidence that one director besides the president knew of this contract; but there was no direct evi- dence that the other three directors had any knowledge of it. The judge instructed the jury, that, if " the corporation, represented by its entire board of officers, knew of and rati- fied the contract, it would be as binding as it the corporation had authorized it by express vote ; " and further instructed the jury as fol- lows : " But all directors of a corporation are presumed to know what it is their duty to know, what they are able to know, and what they undertook to know when they accepted the responsibility of directors, and a jury have a right to suppose that the directors of a cor- poration have a knowledge of its concerns. In the absence of direct and positive evidence of the knowledge of the directors, jurors have a right to assume that they are doing what they were appointed to do, and that they know what they are appointed to know." Held, that these last instructions were errone- ous. Murray v. Nelson Lumber Co., 143 Mass. 250 (1887). For a case in which a savings bank was held not to be liable for certain fraudulent acts of its treasurer, see Savings Bank. V. Powers, Eights, and Liabilities of CoRPOKATioNS ; Ultea Vires. 1. The charter of a corporation authorized it to purchase and hold " in fee simple or otherwise" real and personal estate to the amount of $50,000, which was increased by subsequent statutes to $600,000; and provided that the corporation might appropriate its funds to charitable purposes, and that its an- nual income should be employed, among other purposes, "to promote inventions and im- 245 CORPORATION, VI. 246 provements in the medhanio arts, by granting premiums for said inventions and improve- ments." Neither the charter nor the sub- sequent statutes directed the manner in which the provisions for granting these premiums should be carried out. Held, that the cor- poration might purchase land and erect a permanent building thereon in which to hold exhibitions and the meetings of the corpora- tion. Richardson v. Massachusetts Charitable Association, 131 Mass. 174 (1881). 2. It is beyond the powers of a railroad corporation chartered by the legislature, or of a corporation organized under St. 1870, c. 224, for the manufacture and sale of musi- cal instruments, to guarantee the payment of expenses of a musical festival; and no action can be maintained against either corporation upon such a guaranty, although it was made with the reasonable belief that the holding of the proposed festival would be of great pecu- niary benefit to the corporation by increasing its proper business, and the festival has been held and expenses incurred in reliance upon the guaranty. Davis v. Old Colony Railroad, 131 Mass. 258 (1881). 3. Under St. 1868, c. 182, authorizing the corporation therein named, for the purpose of better supplying fresh water and of saving and restraining the water that might percolate from a certain great pond into another pond named, in land owned by the corporation, to take, hold, or purchase any land near or ad- joining said land, and to enlarge the last- named pond and to raise a dam on said land, and providing that the water of said pond should never be drawn down lower than a certain depth, except for the purpose of re- pairing the dam or clearing out the pond, the corporation has no right to sink wells on the land so taken, for the purpose of intercepting the underground currents as a source of water supply; such acts are ultra vires and illegal, and will be enjoined upon an information in equity in the nature of a quo warrranto. Attorney General v. Jamaica Pond Aqueduct, 133 Mass. 361 (1882). 4. The rights of different persons claiming to represent a subordinate lodge of the Order of Good Templai-s of Massachusetts are to be determined by the constitution of the Grand Lodge, and, although a subordinate lodge has done acts which render it liable to have its charter declared forfeited by the Grand Lodge, yet, until such forfeiture has been declared, it is entitled to possession of the property of the lodge; and a bill in equity cannot be main- tained against its members to recover posses- sion of such property by persons claiming to be recognized by the Grand Lodge as the sub- ordinate lodge, until they have exhausted the remedies prescribed in the constitution of the Grand Lodge. Chamberlain v. Lincoln, 129 Mass. 70 (1880). 5. A corporation authorized by the legisla- ture to construct and maintain a railroad or a mill-dam is liable in an action of toi-t to a per- son injured by the negligent construction of its railroad or dam. Bryant v. Bigelow Carpet Co., 131 Mass. 491 (1881). For a case involving the joint liability of a mill corporation and a railroad corporation for improperly constructing a dam and culverts to the injury of the plaintiff's property, see Nuisance. 6. An action for malicious prosecution will lie against a corporation, — against, for in- stance, a savings bank. Reed v. Home Sav- ings Bank, 130 Mass. 443 (1881). 7. A corporation is not bound, as to third persons, by interpolations fraudulently in- serted in its records, if such third persons have not acted on or seen or known of the existence of the matters so interpolated and appearing to be a part of the records. Holden V. Hoyt, 134 Mass. 181 (1883). 8. If a corporation has a lien on stock for a debt due the corporation from a stockholder, it is not estopped to assert such lien by the fact, that, on the stockholder's presenting the certificate for transfer to the person in charge of the transfer-book, the latter promised to make the transfer and issue a new certificate as soon as a certain officer returned. Bishop V. Globe Co., 135 Mass. 132 (1883). 9. A corporation was authorized by statute to issue preferred stock, not to exceed a cer- tain number of shares, giving its guaranty that each share of such stock should receive semiannual dividends of a certain number of dollars on each share. The statute further provided that such stock should not be issued until the corporation had received a certain sum for each share ; that the stock might be exchanged for common stock, but not within a stated time preceding the making of a divi- dend; and that, upon the dissolution or ter- mination of the corporation, the holders of preferred stock were entitled to be paid in full next after the payment of debts, and before any payments to the holders of the common stock. Held, that the guaranty of dividends on the preferred stock was an absolute one, and not conditional upon the earning of suffi- cient profits by the corporation. Williams v. Parker, 136 Mass. 204 (1884). For a case involving the liability of a manu- facturing corporation under St. 1874, c. 221, as amended by St. 1880, c. 194, regulating the hours of labor, see Master and Servant. VI. Bights and Liabilities of Members. 1. St. 1870, 0. 179, provided that, in case of the increase of the capital stock in any cor- poration, the stockholders might take the new stock at par; and that the shares not taken might be sold at auction for the benefit of the corporation, but that all premiums realized from such sales should be paid to those stock- holders, in their proper proportions, who did not avail themselves of their right to take the new shares. St. 1877, c. 230, provided that, whenever any corporation subject to the pro- visions of the former statute should increase its capital stock, the shares not taken by the stockholders might be sold or issued in such manner as the stockholders of the corporation 247 CORPORATION, VII. 248 should by vote direct ; but that no shares should be sold for less than their par value. In 1879, a corporation increased its capital stock. The stockholders voted that all shares not taken at a certain date should be sold by public auc- tion, or in such manner as to the directors might seem advisable ; and the directors caused them to be sold by public auction. Held, in an action by a stockholder, to recover the pre- miums realized from the sale of the shares which he did not avail himself of the right to take, that the case was governed by the provisions of St. 1877, and that the action could not be maintained. Mason v. Davol Mills, 132 Mass. 76 (1882). 2. A by-law of a co-operative building asso- ciation provided that, " if any member wishes to withdraw from the company, he shall give notice in writing to the clerk of such inten- tion, when the company shall, within one year from the receipt of such notice, pay to said member the sum of money which he has paid as instalments and the one hundred dol- lars which he originally paid for stock, which certificate of stock he shall deliver to the treas- urer." Another by-law provided that, "if any member wilfully neglects his payments, he shall, after one year, take what money he has paid to the company as instalments and for stock, the certificate of which stock he shall surrender to the treasurer." Held, that the two by-laws should be construed together; and that a member, who had not given notice of his intention to withdraw until within less than a year before bringing suit, could not maintain an action against the association for the amount of stock and instalments paid by him. Hartford v. Co-operative Homestead Co., 128 Mass 494 (1880). 3. The by-laws of an incorporated benevo- lent society provided that a sick member, upon sending to the society " every week dur- ing his sickness " a certificate signed by a qualified surgeon, stating his illness, " shall be entitled to a weekly allowance of five dol- lars." A member of the society was taken ill, in another State, and sent to the society a cer- tificate, stating his illness, and signed by a person who was in fact a sm-geon in attend- ance upon him, but who did not describe him- self in the certificate as such. Accompanying the certificate was a letter from the member, in which he spoke of it as the doctor's certifi- cate. No other certificate was furnished until after his return to this State, about three months later, when he furnished a certificate that he had been ill since the date named in his first certificate. Held, that the first cer- tificate was a substantial compliance with the by-law, and entitled the member to receive an allowance for one week; and that he was not entitled to any further allowance. Dolan V. Court Good Samaritan, 128 Mass. 437 (1880). 4. A contract between two stockholders in a corporation, by the terms of which one, in consideration of a sum of money paid to him by the other, agrees to vote for a certain per- son as manager of the corporation, and also to vote to increase the salaries of the officers of the corporation, including that of the man- ager, is void as against public policy, unless it is assented to by all the stockholders of the corporation; and whether it is valid if so as sented to, quaere. Woodruff v. Wentworih, 133 Mass. 309 (1882). VII. Contracts bt and with Cokpoka- TIONS. 1. If a contract is made with a corporation, it is a proper inquiry whether the natural con- struction of language would show the contract to be ultra vires. But if the contract is one within the scope of the authority of the cor- poration, its construction is governed by the same general rules which govern all contracts. Lord, J., in Watuppa Reservoir Co. v. Mac- kenzie, 132 Mass. 71 (1882). 2. A promissory note, signed with the name of a corporation by its treaisurer, and indorsed with its name by its directors, was delivered to a person, under a written agreement be- tween him and the corporation, by which he sold property to the coi-poration and the cor- poration was to give the note as the price, and in pursuance of a contemporaneous oral agree- ment, made in a talk with the directors, " that there should be no personal liability on the note referred to " in the written agreement. He afterwards recovered judgment against the corporation in an action at law upon the note. Held, on a bill in equity against the stock- holders of the corporation, to enforce payment of the judgment, under Sts. 1870, c. 224, §§ 39 et seq., 1875, c. 177, § 1, and 1876, c. 1, § 1, (Pub. Sts. c. 106, §§ 61 et seq.,) that the oral agreement meant that there should be no statutoi-y liability on the part of the stock- holders; and that this agreement was admis- sible in defence, and was not merged in the judgment. Brown v. Eastern Slate Co., 134 Mass. 590 (1883). 3. An assignment of a mortgage of land from a loan and fund association, concluding, " In witness whereof the said association, by J. S., its president, duly authorized for this purpose, has hereunto set its seal, and the said J. S., president as aforesaid, has here- unto set his hand," signed "J. S., president of " (giving the name of the corporation), and sealed, is in form executed by the corporation. Murphy v. WelsJi, 128 Mass. 489 (1880). 4. If an order for goods is addressed to a corporation, and is accepted by " A. B., treas- urer," he being in fact the treasurer of the corporation, the acceptance is in form that of the corporation Rogers v. Union Stone Co., 131 Mass. 31 (1883). 5. A bill in equity, brought by a railroad corporation against a construction company, to restrain an action at law, brought by the company against the corporation, to recover sums of money alleged to be due for building its railroad, can be maintained only on the equity which the stockholders in the cor- poration have, if the bill proceeds upon the ground that the work was done under a con- 249 CORPORATION, VIII. 250 tract entered into by the corporation with an irresponsible person, through the fraudulent procurement of the managing director of the corporation and for his personal benefit, which contract was assigned to the construction com- pany, with the assent of the directors of the corporation, many of whom were interested in the construction company, although there are creditors of the corporation, and among them is the government which granted its charter. Union Pacific Railroad v. Credit Mohilier, 135 Mass. 367 (1883). 6. By the terms of the charter of a railroad corporation, the subscription books were to be kept open until $100,000,000 should be sub- scribed, and persons were to be allowed to subscribe at a late date on the same terms with the earlier subscribers, and one hundred miles of railroad were to be built within a certain time. Capitalists were unwilling to risk their money in the construction of the railroad, if others, after success was assured, could share the profifs equally with themselves. The managing director of the corporation pro- cured an irresponsible person to offer to con- struct a portion of the railroad, and procured the directors to accept the offer on behalf of the corporation. The managing director fur- nished this person with means to carry on the work, and took to himself the profits of the enterprise. He also had an agreement with this person, by which the contract should be assigned to such person as he should direct. The managing director intended that, if the scheme could be carried out, all of the stock- holders of the corporation should have an opportunity to become interested in it, in pro- portion to the number of their shares of stock. Subsequently, a construction company was chartered, in which the managing director and other dii'ectors of the coi-poration were largely interested, and which had as its direc- tors some of the directors of the corporation; the contract already made was assigned to this company with the assent of the directors of the corporation, and an opportunity was given to all the then stockholders of the cor- poration to become members of the company, and the road was built by the company. Held, on a bill in equity, brought by the railroad corporation against the construction company to restrain the prosecution of an action at law brought to recover sums of money due for building the road, that the managing director did not stand as to the con- tract procured by him in the relation of an undisclosed principal. Held, also, no actual fraud being found to exist, that the above facts did not show constructive fraud, so as to render the contract void in the hands of the construction company. Union Pacific Railroad v. Credit Mobilier, 135 Mass. 367 (1883). 7. A contract may be ratified by the stock- holders of a corporation if it is made with full knowledge of all the material facts, al- though in ignorance of the legal effect of such facts. Kelley v. Neieburyport Horse Railroad, 141 Mass. 496 (1886). 8. As a general rule, a contract between a corporation and its directors is not absolutely void, but voidable at the election of the cor- poration; and the right to avoid it may be waived. Kelley v. Newburyport Horse Rail- road, 141 Mass. 496 (1886). 9. The directors of a street railway coi-pora- tion made a contract with G. for building its road for a certain price in money and stock ; and he gave to the corporation a bond, with A. and B. as sureties, for the faithful per- formance of his contract. G. failed to per- form his contract, and the board of directors called on the sureties, who themselves were directors, to perform it, with notice that they would be held liable to the corporation for all damages that might accrue to the corporation by their default. Thereupon A. and B. pro- ceeded to finish the road according to the con- tract, in which originally they had no interest. The price was fair and reasonable ; the road, as completed by them, was a well-built road; the advancements made by them were in con- sequence of the notice given to them by the directors, and not with any fraudulent design to obtain any pecuniary benefit for themselves from the contract. The directors, acting under a general vote of the stockholders au- thorizing them to make any settlement, settled with A. and B. by giving them promissory notes. The corporation held and operated the road for nearly ten years without taking any steps to repudiate the notes, and paid interest upon them ; accepted reports of the treasurer in which these notes were referred to as out- standing obligations; and also accepted a statute authorizing the corporation to issue bonds to a certain amount for the purpose of extinguishing its floating debt. Held, in an action on the notes, that the evidence was sufiicient to warrant the jury in finding a rati- fication of the notes by the corporation . Kelley v. Newburyport Horse Railroad, 141 Mass. 496 (1886). VIII. Actions by and against Corpora- tions; Pleadings and Evidence. 1. If an injury is caused by the combined acts of negligence of two corporations, a joint action may be maintained for the entire in- jury against both ; it is not the duty of the plaintiff to attempt to apportion the degree of negligence of each defendant, nor to deter- mine whether the same injury would have resulted from the negligence of one, if the negligent acts of the other had not co-operated. Bryant v. Bigelow Carpet Co., 131 Mass. 491 (1881). 2. St. 1881, c. 113, providing that, when it appears from the pleadings in any suit that either party sues or is sued as a corporation, such fact shall be taken as admitted, unless the party controverting it shall file in court, within ten days from the time allowed for answer, a special demand for proof of the fact, — Held, not to apply to an action in which the plaintiff sued as a corporation, and in which an answer denying each and every allegation in the writ and declaration was 251 CORPORATION, IX. 252 filed, and more than ten days had elapsed, after the time allowed for answer, before the passage of the statute; that it was incumbent on the plaintiff to prove the existence and or- ganization of the alleged corporation. Good- win Bedstead Co. v. Darling, 133 Mass. 358 (1882). 3. If an incorporated benevolent society, whose by-laws provide for the payment of a weekly allowance to a sick member, upon the performance of certain conditions by him, re- fuses to fulfil its contract, the member injured thereby may maintain an action at law against it, if the by-laws of the society make no pro- vision for a tribunal to decide questions aris- ing between the society and its members. Dolan V. Court Good Samaritan, 128 Mass. 437 (1880). 4. A court of chancery has no peculiar ju- risdiction over an insolvent corporation, under which it can restrain the corporation, at the instance of a creditor, from making an im- provident contract, no fraud or breach of trust being alleged as the foundation of the claim for equitable relief. Pond v. Framing- ham ^Lowell Railroad, 130 Mass. 194 (1881). 5. A corporation may maintain an action against a person who presents a forged power of attorney to transfer stock, upon the faith of which the corporation issues to such person a new certificate of stock, although such per- son acted in good faith. Boston §■ Albany Railroad v. Richardson, 135 Mass. 473 (1883). 6. If, by the law of the State under which a corporation is organized, the corporation has a lien on the stock of any shareholder for a debt due from him to the corporation, such lien is a good defence to an action in another State against the corporation by a person to whom the shareholder has transferred the stock. Bishop v. Globe Co., 135 Mass. 132 7. In an action against a corporation for the alleged wrongful dismissal of the plaintiff from the office of clerk of the corporation, the issue was whether the record of a vote of the corporation, which stated the election of the plaintiff as clerk, and which was made by the plaintiff, was approved at a subsequent meeting of the corporation without correction. Held, that evidence that the plaintiff was not in fact elected at the former meeting was im- material. Held, also, that if the plaintiff was present, and recorded the vote of approval, acceptance of the oflBce would be presumed. Delano v. Smith Charities, 138 Mass. 63 (1884). 8. Before the St. of 1884, c. 330, providing for service of process upon a foreign corpora- tion having its usual place of business in this Commonwealth, a foreign corporation was sued here, its property was attached, and an attested copy of the writ left with its treas- urer. Held, that the cause was not so " com- menced by the service of process," within the Pub. Sts. c. 169, § 25, that the plaintiff could take a deposition by serving notice of the taking of the same upon the treasurer of the corporation. Lewis v. Northern Railroad, 139 Mass. 294 (1885). 9. A corporation, which is incorporated " for the purpose of manufacturing fabrics of wool and worsted or of a mixture thereof with other textile materials," may maintain an ac- tion for groceries, dry goods, and other similar articles, sold and delivered by and in the name of a person who is keeping a store as the un- disclosed agent of the corporation, to a per- son not in the employ of the corporation, who retains and uses the goods, even if the con- tracts of sale are not within the powers con- ferred upon the corporation by its charter. Slater Woollen Co. v. Lamb, 143 Mass. 420 (1887). 10. If the treasurer of a corporation misap- propriates its funds, and, without authority, lends them to a third person, an action of con- tract by the corporation against such person is not a ratification of the treasurer's acts, and does not discharge him from liability to the corporation. Goodyear Dental Vulcanite Co. V. Caduc, 144 Mass. 85 (1887). 11. In an action by a corporation against its treasurer, who had misappropriated its. funds, and, without authority, lent them to the C. Company, of which corporationhe was also the treasurer, and against which corpora- tion the plaintiff brought an action of con- tract, it appeared that in that action the plaintiff attached personal property of the C. Company of an uncertain value ; that a mort- gagee duly notified the officer that he claimed the attached property under a mortgage ; that the C. Company was in fact insolvent; that a receiver of that company was appointed in another State, where it was incorporated, who offered to pay the plaintiff, in settlement of the action, about forty per cent of its claim; that the plaintiff notified the defendant and the sureties on his treasurer's bond of this of- fer, and offered to permit him, upon paying the amount due the plaintiff, to assume the control of that action, and to assign to him its cause of action; and that the defendant declined this proposition, and thereupon the plaintiff compromised with the C. Company, and gave a release, discharging the company from all actions and causes of action, '-re- serving all its remedy against E., formerly its treasurer, and the sureties upon his official bond." Held, that these facts did not operate to discharge the defendant from liability to the plaintiff. Goodyear Dental Vulcanite Co. V. Caduc, 144 Mass. 85 (1887). IX. FORFEITURB OF CHARTER, AND DISSO- LUTION OF Corporations. 1. Although, strictly and technically, a judgment of ouster proljably does not dissolve the corporation against which it is rendered in proceedings upon an information in the nature of a quo warranto, it at least suspends its right to exercise its franchises, and it necessarily follows that no grantee or licensee of the corporation can afterwards justify his action under the right or franchise of the cor- poration. Campbell v. Talbot, 132 Mass. 174 (1882). 253 CORPOEATION, X. 254 2. The repeal of a general corporation law by a statute substantially re-enacting and ex- tending its provisions does not terminate the existence of corporations organized under it. Held, therefore, that St. 1874, c. 375, repealing Gen. Sts. o. 32, relating to corporations, was not intended to affect existing corporations. United Hebrew Association v. Benshimol, 130 Mass. 825 (1881). 3. If the charter of a corporation provides that the corporation shall cease to exist if a certain thing is not done in a certain time, the question whether the corporation has ceased to exist can be judicially determined only in a suit to which the Commonwealth is a party. Briggs v. Cape Cod Ship Canal, 137 Mass. 71 (1884). 4. An act incorporating a railroad company repealed the charter of an existing railroad company, and authorized the new one to take the tracks of the old, and made provision for the payment of compensation therefor. The tracks were taken, and a petition for damages was duly filed. Pending this petition, the three years allowed by the Gen. Sts. c. 68, § 36, for a corporation whose charter is an- nulled to close its business, expired; and, no receiver having been appointed under § 37, the petition was dismissed. Before the ex- piration of the time allowed for filing a petition for damages, a stockholder of the old company brought a bill in equity to restrain the new one from doing business. After the dismissal of the petition for damages, but within a year after the bill in equity was decided, a creditor of the old company brought a bill in equity against the new one for the appointment of a receiver to prosecute the claim for damages by reason of the taking of the tracks. Held, that the bill could not be maintained; and that the Gen. Sts. c. 63, § 30, did not apply. Bigelow v. Union Freight Railroad, 137 Mass. 478 (1884). X. Foreign Corporations. For Foreign Insurance Companies, see In- surance. 1. A railroad corporation, created by the laws of another State which has an office in this Commonwealth for the convenience of its stockholders «,nd for the better management of its finances and other business, where its principal ofiScers are to be found, and where it carries on such business as is usually carried on in the office of the president and treasurer of a railroad corporation, has a usual place of business in this Commonwealth, within the meaning of St. 1870, c. 194, and may be sum- moned as trustee by process served upon its ti'easurer. Bank of Commerce v. Huntington, 129 Mass. 444 (1880). 2. A non-resident may maintain an action in the courts of this Commonwealth against a foreign insurance company doing business here, upon a contract made, and the subject matter of which is situated, in another State, although the only service of process is made upon the insurance commissioner of the Commonwealth, in accordance with St. 1878, c. 36. Johnston y. Trade Ins. Co., 132 Mass. 432 (1882). 3. The charter of a corporation, which was granted by a foreign government, provided that no subscriber to the capital should be in- dividually liable for any debt or liability of the corporation beyond the par value of the stock subscribed by him ; and that no holder of stock in the corporation should be pro- ceeded against for the collection of any debt of the corporation until judgment thereon should be obtained against the corporation, and an execution on such judgment should be returned unsatisfied. Held, that a bill in equity, by a creditor of the corporation, to reach the amount remaining unpaid upon a subscription for the stock of the corporation, could not be maintained, unless the plaintiff had recovered a valid judgment against the corporation. E. Remington Sf Sons v. Samana Bay Co., 140 Mass. 494 (1886). 4. The charter of a corporation, granted by the Dominican government, constituted a part of a document called " Convention for the lease of the Peninsula and Bay of Samana, and for other purposes." By one article, the charter was to become operative on January 1, 1873, and was to continue in force for ninety-nine years, upon condition that the corporation should pay to the Dominican government a certain sum annually, in ad- vance, on the first day of January of each year. The next article provided that " this convention " might be declared null and void by " the government of the said republic " whenever the corporation should fail to fulfil the conditions established in the preceding article, except in case of war, or of other controlling circumstance duly attested, when thirty days' grace should be allowed, count- ing from the first day of January of the year in which the payment should be made. The corporation was organized, and the rental for the first year, which was due January 1, 1873, was duly paid. In November or December, 1873, the government which had granted the charter was overthrown by a revolutionary army under G., and a provisional govern- ment was established. In the latter part of December, 1873, G. was elected President, and on April 6, 1874, took the oath of office; but he acted as President, and was, in fact, the supreme executive of the republic from the beginning of December, and was recog- nized as such by the citizens. From Decem- ber into March, the corporation had various communications and dealings with the G. gov- ernment, which it also recognized as the gov- ernment of the republic. More than the thirty days of grace allowed by the charter in case of war had elapsed; and, on March 25, 1874, the G. government made a decree, re- citing the stipulation for rent in the charter, the dealings between the corporation and the present government, and the default on the part of the corporation; and declared that the agreement entered into between the Do- minican government and the corporation for 255 COSTS, I. 256 the renting of the peninsula and bay of Sa- mana "is, and is declared from this date to be, in virtue of that agreement itself, rescinded in all its parts, and null, and of no value or effect." The decree also provided that " the company shall make good the amount for re- exchange for the drafts protested through its default, and the proportionate amount of the rent which is due from the first of January to the date of this decree." The corporation was thereupon forcibly ejected from the terri- tory which it had occupied, and has never since had any possession or control of the property which had been possessed and occu- pied by it before under the grant; and the corporation has never since been recognized by the Dominican government as a corporation under its laws. A consul appointed by the G. government was recognized by the United States government on July 18, 1874. A creditor of the corporation brought an action against it in the State of New York on April 8, 1874, in which judgment was rendered against the corporation on January 14, 1875. Held, in an action by the creditor to enforce the liability of a stockholder of the corpora- tion, that the corporation was dissolved by the decree of the G. government of March 25, 1874 ; and that the judgment against the cor- poration was void for want of jurisdiction. E. Remington §• Sons v. Samana Bay Co., 140 Mass. 494 (1886). COSTS. I. When a Party will ok will not ke- covER Costs; Generally. II. Costs in Various Proceedings. Of Costs in Equity Proceedings, see Equity Pleading. Of Security for Costs, see Appeal, III. I. When a Party will or will not RECOVER Costs; Generally. 1. An action was commenced before a trial justice, who gave judgment for the plaintiff, from which the defendant appealed to the Su- perior Court, and there pleaded a tender, for the amount of which the court gave judgment for the plaintiff, to whom the defendant paid that sum. Held, that the defendant was not entitled to costs. King v. Marrow, 130 Mass. 277 (1881). 2. If, at the trial of an action of replevin of several articles, it is admitted that the plain- tiff's title to all the articles depends upon a bill of sale, and the validity of this is the only issue tried, and the jury find that it is valid, the defendant is not entitled to a verdict for costs, although it is admitted that he did not take some of the articles. Ashlon v. Touhey, 131 Mass 26 (1881). 3. Where trustees, to whom a bankrupt, under U. S. Kev. Sts. § 5103, has conveyed his estate, intervene in a suit brought by an attaching creditor to enforce his claim, under an attachment made within four months of the commencement of proceedings in bankruptcy, and judgment is rendered for the defendant on his discharge in bankruptcy, the trustees are entitled to judgment for their costs. Moors V. Albro, 129 Mass. 9 (1880). 4. If a general judgment for the defendant is rendered in an action in which he has filed a declaration in set-off, neither party is en- titled to costs. Hartford v. Co-operative Home- stead Co., 130 Mass. 447 (1881). 5. After judgment and execution for dam- ages and costs have been obtained and satis- fied in an action against one wrongdoer, while an action is pending against a joint wiong- doer, the plaintiff is not entitled to a judg- ment for nominal damages in the latter action, so as to enable him to recover the costs thereof also; the defendant in the second action, hav- ing pleaded the judgment and satisfaction in the first, is entitled to judgment for his costs. Savage v. Stevens, 128 Mass. 254 (1880). 6. The plaintifi in a personal action, brought originallv in the Superior Court, who recovers a verdict of $21.16, of which $20 is for the original debt and $1.16 is for interest from the date of the writ, is entitled to costs, under Pub. Sts. c. 198, §§ 1, 5. The oases in 116 Mass. 165, and 119 Mass. 95, do not affect the question, they having arisen under a different statute. Douglass v. Nichols, 133 Mass. 470 (1882). 7. An appeal from the clerk to a judge of the same court in the matter of taxing costs after judgment does not vacate the judgment; but, if waived before hearing, leaves the judg- ment in force as of the day when it was en- tered. Melmn v. Bird, 131 Mass. 561 (1881). 8. The provision of Gen. Sts. c. 124, § 8, that " no arrest shall be made after sunset, unless specially authorized by the magistrate making the certificate," does not apply to an arrest upon an execution for costs only. Stoned case, 129 Mass. 156 (1880). 9. In the absence of a provision concerning costs and expenses in a submission to arbitra- tion, under the Gen. Sts. c. 147, the arbitrator has authority by § 11 to award compensation for his own services and the costs of court, but has no authority to award that the losing party shall pay the counsel fees of the other party ; and such erroneous part may be stricken out, without invalidating the restK)f the award. Warner v. Collins, 135 Mass. 26 (1883). 10. An attorney at law, who places his name under the words, " From the office of," on the back of a writ in favor of a resident of another State, is liable, as indorser, for costs. Morrill v.Lamson, 138 Mass. 115 (1884). 11. If an attorney at law indorses a writ in favor of a resident of another State, he can- not set up in defence to a scire facias to en- force a judgment for costs awarded against such party, that, in so doing, he violated a rule of the court, prohibiting an attorney from becoming bail or surety in any civil suit or proceeding in which he is employed as such attorney. Morrill v. Lamson, 138 Mass. 115 (1884). 257 COUNTY. 258 12. For cases in which exceptions were ad- judged frivolous, and double costs allowed, see 128 Mass. 367,480; 130 Mass. 265; 134 Mass. 475. II. Costs in Various Peoceedings. See Insurance, pi. 18. 1. A. brought an action of contract against B., who filed an answer containing a general denial, and also filed a declaration in set-off. Subsequently B. was defaulted, and judgment was rendered against him on his default for more than |1,000 and costs. He then brought a writ of review, and, upon the trial, A. re- covered a verdict of one dollar. Held, that, under Pub. Sts. c. 187, §§ 34, 35, B. was en- titled to costs, even if the sum recovered by A. in the original action was reduced by set- off upon the trial on the review. Williams V. Williains, 138 Mass. 587 (1882). 2. Under Pub. Sts. c. 156, § 35, this court has no power, in contested probate cases, to award counsel fees or other expenses as "costs," in addition to the taxable costs; and such power does not exist independently of the statutes. Brown v. Corey, 134 Mass. 249 (1883); Morrill v. Wiseman, 134 Mass. 252, note (1883). 8. A right to an easement is involved in a suit brought to recover damages from a rail- road company for diverting surface water and turning it upon the plaintiff's land, where the defendant claims the right to do this, on the ground of its being necessary to the proper construction and maintenance of the road. So held, upon the question of costs under Pub. Sts., u. 198, § 6, giving full costs to the pre- vailing party, irrespective of the amount of damages recovered in a suit involving the right to an easement. Rathke v. Gardner, 134 Mass. 14 (1883). 4. A landowner who has applied, under St. 1873, c. 261, to the Superior Court for a jury to assess his damages sustained by a change of grade of a highway, and has obtained a verdict in his favor, is hot entitled to costs. Gijford v. Dartmouth, 129 Mass. 135 (1880). 5. The costs of the proceedings of commis- sioners appointed under St. 1871, c. 338, to make division of flats, are to be apportioned among the several owners thereof, according to the market value of their respective shares or interests, and not according to the area of the flats. King, petitioner, 129 Mass. 413 (1880). 6. If one summoned as trustee files an an- swer at the first term, upon which he is en- titled to be discharged, and no interrogatories or further allegations are filed, he is not en- titled to costs at subsequent terms, while the case is pending on the docket, although the principal defendant does not appear. Haw- kins V. Graham, 128 Mass. 20 (1879). 7. Under Gen. Sts. c. 142, § 60, a person summoned as trustee is not entitled to an at- torney's fee, nor to any allowance for counsel fees, except at the discretion of the court. Hawkins v. Graham, 128 Mass. 20 (1879). SUPPLEMENT. — 9 8. A person who prevails, upon an applica- tion for a sheriff's jury to assess the damages occasioned by the taking of his land by a rail- road corporation, is entitled to be allowed, in the taxation of costs in the Superior Court, as part of his " legal costs," given by the Pub. Sts., c. 112, § 100, the fees of his witnesses for travel and attendance before the sheriff's jury, and the officer's fees for summoning the witnesses; and it is immaterial that the items in question do not appear in the sheriff's cer- tificate of costs returned to the Superior Court. Childs V. New Haven §• Northampton Co., 135 Mass. 570 (1883). 9. If both parties to an action appeal from the decision of the Superior Court to this court, and one party waives his appeal and prevails on the appeal of the other party, neither party is entitled to recover the costs of the appeal, under the Pub. Sts. c. 198, §27. Childs V. New Haven §• Northampton Co., 135 Mass. 570 (1883). 10. Under the St. of 1882, c. 264, § 1, it is within the discretion of the presiding judge, if no question in an action is carried to the full bench of this court, to allow to the party recovering costs, in addition to the three term fees given by the statute, .such number of term fees as is deemed just. Leonard v. O'lteilley, 137 Mass. 138 (1884). 11. In the absence of evidence of the cir- cumstances of the attachment and keeping of personal property, a fee of three dollars taxed therefor will not be presumed to be illegal. Kellogg v. Kimball, 139 Mass. 296 (1885). 12. Where, on an appeal from a taxation of costs, the record does not disclose when, where, or by whom a deposition was taken, nor its length, an allowance in the Superior Court of a fee of ten dollars therefor will not be revised in this court. Kellogg v. Kimball, 139 Mass. 296 (1885). COUNSELLOR. See Attorney. COUNTY. See Bridge. 1. It is well settled that the Legislature may authorize and require a county or a town to raise and appropriate money for any public use within its limits, or for the reimburse- ment of money already paid for such a use. Agawam v. Hampden County, 130 Mass. 528 (1881). 2. The St. of 1794, c. 30, provided, in § 1, that a bridge should be erected over a river in a certain town and county, " one half of which to be at the expense of said county, and the other half to be borne by the said town , " and, in § 2, that the bridge " shall hereafter be 259 COVENANT. 260 maintained, repaired, and supported in man- ner as is hereinbefore directed." The officers of the town always made the necessary repairs of the bridge, receiving one half of the expense thereof from the county. Held, that a person injured by a defect in the bridge could main- tain an action therefor against the county; that, if the nonjoinder of the town as a de- fendant could be availed of, it could only be in abatement; and that, this not having been done, the county was liable for the whole damages. Lyman v. Hampshire, 140 Mass. 311 (I889). COUNTY COMMISSIONERS. As to the authority and proceeding of the county commissioners i-elative to ways, see Certiokari; Mandamus; Railroad; Way. 1. A notice to the inhabitants of a town of the meeting for the annual State election called upon them to meet on a certain day at a designated place, " to vote for government officers;" was signed by a majority only of the selectmen, without the addition of the name of their office to their signature ; was not directed to or served by a constable or other person appointed by the selectmen for that purpose ; but was posted more than seven days before the day of the election in a public place, according to the usual custom of the town, there being no by-law or vote of the town prescribing how warrants for meetings should be served. All but eight of the regis- tered voters of the town were present at the meeting, and of those all voted for the office of county commissioner but one. Of the eight who were not present, five had actual notice of the time and place of the meeting, and that a county commissioner was to be voted for, two had been absent at sea more than two weeks prior to the meeting, and one was confined to his bed by sickness. One of the candidates for county commissioner had a plurality of eight votes in all the towns of the county including the town in question. Held, upon an information in the nature of a quo warranto, that the election was valid; and that the defendant was duly elected county commissioner. Commonwealth v. Smith, 132 Mass. 289 (1882). 2. Under the Pub. Sts. c. 220, § 56, the master of a house of correction may employ a person to sell the articles manufactured by the prisoners; and, it being no part of the duty of a county commissioner to perform such services, a payment made to him for his expenses incurred in making such sales can- not be recovered of the commissioner in an action by the county. Bristol v. Gray, 140 Mass. 59 (1885). 3. Under the Pub. Sts. c. 22, § 22, county commissioners are not required to accept the lowest proposal for the construction of public •works, but may make such contract therefor as, in their judgment, will be for the best in- terests of the county. Mayo v. County Com- missioners, 141 Mass. 74 (1886). COURTS. See District Court ; Jurisdiction ; Justice of the Peace ; Police Courts ; Probate Court ; Rkmoval ; Superior Court ; Supreme Judicial Court ; Su- preme Court of the United States. If a court has acquired jurisdiction of a case by the fact that the person summoned as trustee has his usual place of busiuess within the territorial limits over which the court has jurisdiction, the subsequent discharge of the trustee does not oust the court of its jurisdic- tion over the remaining parties. Raymond v. Butterworth, 139 Mass. 471 (1885). COVENANT. Of covenants in leases, see Landlord and Tenant. Of restrictions and equitable easements, see Easement. See also Condition ; Contract ; Deed ; Equity. 1. A deed of land contained a clause that the conveyance was made subject to a mort- gage of a certain amount from A. to B., re- corded in a certain book and page iu the registry, and a covenant that the premises "are free from all incumbrances except as aforesaid." At the time of the conveyance, interest was due on the mortgage, which the grantee was afterwards obliged to pay to prevent foreclosure. Held, that the princi- pal and interest constituted a single incum- brance, which was excepted out of the grantor's covenant. Shanahan v. Perry, 130 Mass. 460 (1881). 2. Land bounded on a street was conveyed "subject to the condition that no building shall ever be placed on that part of the land lying within twenty-five feet of said street," etc. Held, that the clause took effect only by way of restriction, and that, in the absence of evidence that it was imposed for the benefit of other land, it must be construed as a per- sonal covenant only with the grantor, and not as a condition enforceable by his heirs after his death. Skinner v. Shepard, 130 Mass. 180 (1881). 3. The grantee in a deed of land, contain- ing a covenant against incumbrances, is enti- tled, in an action for breach of the covenant, the alleged incumbrance being an assessment upon the land for the cost of constructing a sewer, to recover not nominal damages only, but the reasonable expenses paid by him to remove the incumbrance, although the assess- ment is in fact invalid, if it can be reassessed. Coburn v. Litchfield, 132 Mass. 449 (1882). 4. The owner of a parcel of land granted by deed, duly recorded, a part thereof to A., and a right to maintain a dam on the other part ; and afterwards conveyed to a third per- son the whole parcel, "reserving" all the rights of A., his heirs and assigns, therein. Held, that this created an exception, and not 261 COVENANT. 262 a reservation ; and that the second grantee could not maintain an action against his grantor on the covenant of seisin in his deed, the covenant of seisin being qualified and limited by the grant. Slockwell v. Couillard, 129 Mass. 2-31 (1880). 5. A mere reference to a plan, in the de- scriptive part of a deed of a lot of land, does not import a stipulation by the grantor that the plan shall not, in any respect, be subse- quently changed in parts not adjacent to the land sold. Coolidge v. Dexter, 129 Mass. 167 (1880). 6. A deed of real estate contained the fol- lowing clause: "This conveyance is made upon the condition that the said C," the grantee, " will erect upon said premises a cot- ton factory within two years from the date hereof." Held, that this was a condition an- nexed to the estate conveyed, and not a per- sonal covenant with the grantor. Langley v. Chapin, 134 Mass. 82 (1883). 7. An agreement, by the grantee in a deed poll, to keep in repair a building on adjoining land of the grantor, is not a covenant, and will not sustain an action by a subsequent grantee of the adjoining land. Martin v. Dri- nan, 128 Mass. 515 (1880). 8. A deed of land from A. to B recited that the consideration had been paid to C, A. holding only the record title; and that C. agreed to release the premises from a certain mortgage. The final clause of the deed stated that C. joined to release an equitable interest in the premises. The deed was signed and sealed by C. as well as by A. Held, that B. could maintain an action against C. for breach of the covenant contained in the deed; that the final clause did not purport to state her only purpose in joining in the deed, and could not impair the effect of the covenant pre- viously expressed in apt and explicit terms. Palmer v. Wall, 128 Mass. 475 (1880). 9. A conveyance of a lot of land was sub- ject to the " conditions " that " no dwelling- house or other building except necessary out- buildings shall be erected or placed on the rear of the said lot," and that " no buildings which may be erected on the said lot shall be less than three stories in height, exclusive of the basement and attic, nor have exterior walls of any other material than brick, stone, or iron, nor be used or occupied for any other purpose or in any other way than as a dwell- ing house for the term of twenty yeai's " from a certain day. Held, that these were to be construed as restrictions, and not as condi- tions, and constituted a breach of a covenant against incumbrances in a subsequent deed. Aylinri v. Kramer, 133 Mass. 12 (1882). 10. In an action for a breach of the cove- nant against incumbrances in a deed of laud, evidence of the original agreement of the owner to convey the land to a person who as- signed the agreement to the grantor of the defendant, the deed to such grantor having been given in pursuance of the agreement, is inadmissible. If it agrees with the deed it is immaterial; if it differs, the deed, being the later contract, must control, and cannot be varied by it. Ayling v. Kramer, 133 Mass. 12 (1882). 11. The grantee in a deed, containing a stipulation that the land is subject to a mort- gage which he assumes and agrees to pay, is liable to the grantor, who pays the mortgage after failure of the grantee to pay it; and it is immaterial in such a case, that the grantor, when he pays the mortgage, takes an assign- ment of it; and it is immaterial that, at the time the mortgage was made, the grantor held the land in trust for the grantee and others, and that the mortgage was given to take up the defendant's share of a previous mortgage. Lappeny. Gill, 129 Mass 349 (1880). 12. The acceptance by the grantee of a deed poll containing a covenant that the land conveyed is free from incumbrances except a mortgage previously made by the grantor, " which the grantee assumes and agrees to hold the grantor harmless from," constitutes a contract by the grantee, not merely to in- demnify the grantor, but to pay the mortgage debt; and the measure of damages, in an action brought by the grantor against the grantee upon this contract after that debt has become payable, is the unpaid amount of that debt, although no part of it has been paid by the plaintiff. Locke v. Homer, 131 Mass. 93 (1881); ReedM. Paul, 131 Mass. 120 (1881); Williams v. Foicle, 132 Mass. 385 (1882). And the fact that the grantee has since sold the estate to a third person affords no reason for denying or limiting his liability upon his agreement with his grantor. Reed v. Paul, 131 Mass.l20 (1881). 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 in such an action. Muhlig v. Fiske, 131 Mass. 110 (1881). And see Locke v. Homer, uhi supra, for a full statement of the grounds and authorities upon which the decisions therein, and in Fur- nas V. Durgin, 119 Mass. 500 (1876), rest. See also Wilson v. Bryant, 134 Mass. 291 (1883). 13. A grantee, when sued upon such an agreement, cannot show by oral evidence that he never agreed to assume and pay the mort- gage, nor authorized nor knew of the inser- tion of such an agreement in the deed, no fraud in its execution or delivery being sug- gested. Muhlig V. Fiske, 131 Mass. 110 (1881). 14. A mortgagor of land, who has con- sented, without consideration, that the mort- gagee might bring an action at law against o:ie who, by the terms of a deed from the mortgagor, is bound to pay the mortgage, may withdraw his consent, and compel the dismis- sal of the action. Coffin v. Adams, 131 Mass. 133 (1881). 15. A husband and wife, who were joint tenants of a parcel of land, conveyed by a deed a portion of it to a raih-oad corporation for its road-bed, prior to St. 1841, c. 125. As part of the same transaction, they delivered to the corporation a receipt, not under seal, signed by the husband alone, and not recorded, 263 CRANBERRY LANDS. 264 i purporting to be a duplicate receipt for the consideration of the deed and to be in full "for land and land damages for the track of the road and for fencing the same." The husband afterwards died, and the wife sold the remainder of the land by a deed making no reference to fences. Held, that there was no contract to fence running with the land which the railroad corporation could enforce against the purchaser under St. 1879, c. 205, § 2. Boston §• Albany Railroad v. Briggs, 132 Mass. 24 (1882). 16. A payment or settlement of gross dam- ages caused by the ilowage from a mill-dam creates an incumbrance on the land flowed, which constitutes a breach of the covenants against incumbrances and of warranty in a subsequent deed of the land. Isele v. Arlington Savings Bank, 135 Mass. 142 (1883) 17. A stipulation in a deed poll, that the grantee, his heirs and assigns, shall make and maintain a fence between the granted premises and adjoining land of the grantor, is not a covenant, and will not sustain an action by a subsequent grantee of the adjoining land against a purchaser from the grantee in the deed poll. Kennedy v. Owen, 136 Mass. 199 (1884). 18. An action for a breach of the covenants against incumbrances and of warranty in a deed of land from the defendant to the plain- tifiE's grantor, occurring before the plaintiff became the owner of the land, cannot be maintained ; and evidence that the plaintifi's grantor knew, when he took his deed, of the existence of the matter relied upon to prove the alleged breach, is inadmissible. Laddy. Noyes, 137 Mass. 151 (1884). 19. F., the owner of a parcel of land on A. Street in a city, a private way which had been used by those abutting on it for manv years, with others, petitioned the city to lay out the street as a public way; and he, with other abutters, executed an agreement with the city, under seal, by which they stipulated that they would not claim any damages on account of the laying out of the street. The city duly laid out the street as a public way, according to a plan which established a grade about three feet lower than the old grade of the street. Afterwards F. executed and de- livered to P. a deed of the premises containing the usual covenant against incumbrances, and bounding the premises " westerly on A. Street." Subsequently the street was con- structed and graded according to the plan. Held, in an action by P. against F., that neither the grading and construction of the street, nor the agreement by F. with the city to release it from all claim for damages, was a breach of the covenant against incum- brances in the deed. Patten v. Filz, 138 Mass. 456 (1885). 20. K. conveyed to F. a quarry in L., bounded by other land of K., with a cove- nant as follows: " And I do for myself, my heirs, executors, and administrators, covenant with the said F., his heirs and assigns, that I will not open or work, or allow any person or [persons to open or work, any quarry or quar- ries on my farm or premises in said L." By mesne conveyances A. became possessed of the quarry conveyed to F., and B. of the sur- rounding land referred to in the covenant- and A. brought a bill in equity to restrain B. from quan-ying stone on his land. Held, that the bill could not be maintained. Norcross v James, 140 Mass. 188 (1885). 21. In 1869, A. bought of B. a parcel of land which was subject to a mortgage made by B. to a bank to secure his promissory note. The deed from B. to A. excepted the mort- gage from the covenant against incumbrances, and contained these words: " which mortgage the aforesaid A. assumes and is to pay and save me harmless for the same, that being a part of the aforesaid consideration." In 1871, A., by a quitclaim deed, conveyed the land to C, covenanting that it was free from incumbrances made or suffered by him, and containing a covenant of warranty against the claims of all persons claiming under him. This deed was delivered in 1871, but was not recorded until 1880. In 1873, A. gave a mortgage on the land to the above-named bank, which had no notice of his deed to C, to secure his own note for an amount similar to that of B.'s note to the bank, which was then paid and his mortgage discharged. The note of A., who died in 1880, was unpaid, and the mortgage undischarged, when C. presented to commissioners appointed by the Probate Court on the insolvent estate of A. a claim for an alleged breach of covenant, which was disallowed; and C. appealed to this court. Pending the appeal, the land was sold under a power in the mortgage for less than sufficient to pay the note. Held, that the claim of C. was rightly disallowed. Foster v. Woodward, 141 Mass. 160 (1886). 22. In an action to recover damages for breach of a covenant against incumbrances contained in a deed of land, oral evidence is inadmissible to prove that, a few days before the execution of the deed, the parties agi-eed that, in consideration that the defendant would execute the deed to the plaintiff for a certain sum, the plaintiff would assume a lia- bility to an assessment upon the land for betterments. Flynn v. Bourneuf, 143 Mass. 277 (1887). As to the construction of the covenants contained in marriage settlements, see Hus- band AND Wife, IV. CRANBERRY LANDS. 1. In an action by the owner of a cranberry meadow against a fish committee of a town, for tearing away the plaintiff's dam, built, under the provisions of St. 1866, o. 206, across a stream not navigable, the defendant asked the judge to rule that, if the plaintiff could have constructed his dam or meadow so that his use of the water would not interfere with or injure a public fishery, he was bound to do it, and, if he did not, the committee had the 265 DAMAGES, I. 266 right to reduce the dam to the point necessary to avoid such interference or injury. The judge declined so to rule; but instructed the jury that it was the duty of the plaintiff to use reasonable care, skill, and prudencein building and maintaining his dam, in the preparation, by way of grading or otherwise, of his meadow before it was ovei-flowed, and in raising and drawing off the water, so as to do the least injury to the fishery consistent with a reason- able exercise of his right to construct a dam, giving full instructions as to the meaning of the words "reasonable care, skill, and pru- dence ; " and that, if the plaintiff so exercised his right, and drew off the water at a proper time and only in a manner necessary for the cultivation of cranberries, the plaintiff was not responsible for injury to the fishery by reason of the spawn of the fish being deposited in shallow water on the meadow and injured by the drawing off of the water; and that, upon such a state of facts, the defendant had no right to remove the dam. The defendant further requested the judge to rule that, if the dam was built, without permission of the town, on land of the town, or against a bridge forming part of a highway, or on land of the town, or under the bridge, the defendant had the right to remove it. The judge declined so to rule, but instructed the jury that the plaintiff had no right to build his dam in the highway, with or without the consent of the town, nor to build it on land of the town without the consent of the town ; and that, if it was so built, the defendant had the right to remove it. Held, that the defendant had no ground of exception to either ruling, nor to an instruction to the jury that the injury caused by frost and insects after the date of the writ was not to be regarded as a distinct and independent ground of damage, but that the true measure of damages was the diminu- tion in value of the land for cranberry culture caused by the act of the defendant. Howes v. Grush, 131 Mass. 207 (1881). 2. In discussing the provisions of the fore- going statute, the court recognizes their va- lidity, without regard to the injury caused to a public fishery, in a stream not navigable, and although the same may be wholly de- stroyed. Howes V. Grush, 131 Mass. 207 (1881). • CREDITOE'S BILL. See Equity, IV. CRIMINAL LAW. See the leading titles of the various crimes and offences respectively. See also Accessory and Accomplice ; Appeai-, v.; AoTEEPOis Acquit; Carrikr, IX.: Constitutional Law; Evidence; Ex- ceptions; Indictment; Judgment; Joey; Justice op the Peace; New Trial; Prac- tice; Recognizance; Record; Report; Variance; Verdict; Warrant; Witness. CRIMINAL PLEADING. See Indictment. CRUELTY TO ANIMALS. A complaint, alleging that the defendant " did cruelly overdrive a certain horse," is suflScieiit, under the Pub. Sts. c. 207, § 52. Commonviealth v. Flannigan, 137 Mass. 560 (1884). CUSTOM. See Usage. CY PRES. See Charity. D. DAM. See Cranberry Lands; Eminent Domain; Mills; Nuisance; Watercourse. DAMAGES. I. In Actions on Contracts. II. In Actions foe Torts. For Land Damages, see Fish ; Mills ; Park ; Railroad, III. ; Sewer ; Water- works ; Way, For the rule of damages in actions for libel and slander, see Libel and Slander. In an action brought by a wife under St. 1879, c. 297, to recover damages for an injury to her means of support by reason of the sale of intoxicating liquors to her husband, see Spirituous Liquors. In actions upon administration bonds, see Executor. In actions for the detention of dower, see Dower. I. In Actions on Contracts. 1. If a bank lends money on a mortgage o: land and houses to be built thereon in a worki i 267 DAMAGES, I. 268 manlike manner, and at a certain cost each, and a third person covenants with the bank that the houses shall be so built, in an action by the bank against such third person the measure of damages is so much of the differ- ence between the value of the houses as built and their value if built according to the con- tract, as is sufficient with the value of the houses as built to pay the mortgage debt and interest at the time the houses were finished, or as soon afterwards as the bank had notice of the defects, or might have had notice with the exercise of reasonable diligence. Norway Plains Savings Bank v. Moors, 134 Mass. 129 (1883). 2. A savings bank intrusted its treasurer with the duty of selling rights to take stock in a national bank. The treasurer, instead of obtaining for the rights their full value, sold them to a committee, consisting of him- self and others, for the minimum price fixed by the vote which directed the sale. Held, in an action by the savings bank against him, that the damages recoverable were the difEer- ence between the sum for which the rights were sold and their cash value at the time of the sale, but that it was error to include in the estimate of damages dividends paid on the shares since the sale. Greenfield Savings Bank V. Simonds, 133 Mass. 415 (1882). 3. If a contract by one person to support another for his life is a continuing contract, it is also entire in its character, and a com- plete breach will justify the party entitled to the support to treat the contract as absolutely at an end, and to recover damages for its whole value. Amos v. Oakley, 131 Mass. 413 (1881) ; Parker v. Russell, 133 Mass. 74 (1882). So where B agrees to cultivate A.'s farm for a year, and before the end of the year A. orders B. ofl the farm, and leases the land to a third person, the damages, like the contract, are entire, and all accrue on the day when the contract is repudiated. Jewett v. Brooks, 134 Mass. 505 (1883). 4. In an action for breach of a contract to furnish a home and support to a person " when he is sober and well behaved," the damages are to be assessed to the date of the wiit only, not to the date of the verdict. Such is the rule in the case of a continuing contract, where there may be successive breaches, from which successive causes of action may arise. Fay V. Guynon, 131 Mass. 31 (1881); see also Parker v. iJ«.weZ/, 133 Mass. 74 (1882). 5. In an action by a woman for breach of a promise of marriage, the judge instructed the jury that, in estimating the damages, they might take into consideration the money value or worldly advantage of a marriage which would have given her a permanent home and an advantageous establishment, the wound and injury to her affections, whatever mortifications or distress of mind she suffered resulting from the defendant's refusal to per- form his promise, and, in this connection, the length of time during which the engagement had subsisted. Held, that the defendant had no ground of exception. Coolidge v. Neat, 129 Mass. 146 (1880). 6. If A. contracts with B. to do certain work, and makes a sub-contract with C. for certain materials which B. by his contract with A. is required to furnish, and, after C. has begun to make the materials, the contract is abandoned by A., the liability of B. to C. for loss of materials and profits is a proper element of damage in an action by B. against A. Smith V. Freeman, 129 Mass. 322 (1880). 7. If a consignee of goods, who has ad- vanced money upon them, without notice to the consignor, sells them in good faith for a less price than that fixed by the consignor, the measure of damages, in an action by the consignor against the consignee, is the differ- ence between the market value of the goods when sold and the price for which they were sold, if the market value has not increased before bringing the action, less the amount of advances, returns, discounts, and commis- sions. Dalby v. Stearns, 132 Mass. 230 (1882). 8. The acceptance by the grantee of a deed of land containing a covenant that the granted premises are free from incumbrances, except a mortgage previously made by the grantor, "which the grantee assumes and agrees to pay," constitutes a contract by the grantee, not merely to indemnify the grantor, but to pay the mortgage debt ; and the measure of damages, in an action brought by the grantor against the grantee upon this contract, after that debt has become payable, is the unpaid amount of that debt, although no part of it has been paid by the plaintiff. Locke v. Homer, 131 Mass. 93 (1881) ; Reed v. Paul, 131 Mass. 129 (1881) ; Williams v. Fowle, 132 Mass. 385 (1882). And the fact that the grantee has since sold the estate to a third person affords no reason for denying or limiting his liability upon his agreement with his grantor. Reed v. Paul, 131 Mass. 129 (1881). If, however, the mortgage has been paid out of the land, or extinguished by the act of the mortgagee, nominal damages only are recov- erable in such an action. Muhlig v. Fiske, 131 Mass. 110 (1881). And see Locke v. Homer, ubi supra, for a full statement of the gi'ounds and authorities upon which the decisions therein, and in Furnas v. Durgin, 119 Mass. 500 (1876), rest. 9. The grantee in a deed of land, contain- ing a covenant against incumbrances, is enti- tled, in an action for breach of the covenant, the alleged incumbrance being an assessment upon the land for the cost of constructing a sewer, to recover, not nominal damages only, but the reasonable expenses paid by him to remove the incumbrance, although the assess- ment is in fact invalid, if the assessment can be reassessed. Coburn v. Litchfield, 132 Mass. 449 (1882). 10. In an action brought by a lessor against a lessee, after the termination of the lease and the surrender of the premises, on the covenant to deliver up the premises in as good condi- tion as they were in at the inception of the lease, the defendant is not aggrieved by a rul- ing that the measure of damages for the re- moval of fixtures is the sum required to restore 269 DAMAGES, I. 270 the fixtures, allowing for reasonable use and wear, and foi the increase in value by sub- stituting new material for old. Watriss v. Cambridge Bank, 130 Mass. 3i3 (1881). 11. In an action against a railroad corpora- tion for the loss of a case containing a por- trait of the plaintiff's father, intrusted to the corporation for carriage, the measure of dam- ages is the actual value of the portrait to the plaintiff, and not the market value; and evi- dence that he had no other portrait of his father is admissible. Green v. Boston §• Lowell Railroad, 128 Mass. 2*21 (1880). 12. If a person contracts to do certain work for another, and commits a breach, and the other, as he has a right to do under the con- tract, finishes the work at the expense of the contractor, he is bound to keep an accurate account of the money expended; yet, if by accident a book containing the account is lost, so that the amount cannot be ascertained with exact precision, recovery may be had against a surety on the bond of the contractor for such amount as can be ascertained with reasonable certainty. Newton v. Devlin, 134 Mass. 490 (188-3). 13. An action at law for damages for breach of a covenant of title in a deed of land, in which the plaintiff claimed to be entitled to recover for two undivided thirds of the value of the land, was restrained by a bill in equity, and it was decided that the plaintiff in the ac- tion at law was estopped to claim damages for more than one sixth of the value of the land. Held, that, although the ad damnum named in the writ was less than two thirds of the value of the land, he was entitled to one sixth of the entire value, if this did not exceed the ad damnum. Lucas v. Wilcox, 135 Mass. 77 (1883). 14. In an action by a corporation against a person to whom it has issued a new certificate of stock, upon the faith of a forged power of attorney to transfer stock presented by him, the measure of damages will embrace: (1 ) The costs and expenses (not including counsel fees) of a suit brought against the cor- poration by the person whose name was forged, to compel an issue of new stock to replace that transferred, the corporation having notified the present defendant of that suit and re- quested him to defend it, which he refused to do; (2.) The amount paid by the corporation for stock bought by it in good faith to replace that so transferred, although the stock was then of a higher value in the market than at the, time when the forgery was committed; (3. ) The dividends upon the stock which the corporation was obliged to pay the person whose name was forged. Boston Sj- Albany Railroad v. Richardson, 135 Mass. 473 (1883). 15. If B. agrees to make for A. a certain number of castings in a specified time, A. to furnish patterns for the castings, and there is no unjustifiable delay on A.'s part in furnish- ing the patterns, in an action by A. against B, for breach of the contract, B. is not en- titled to a ruling that, if there was no unrea- sonable delay on his part after receiving the patterns, the plaintiff can recover only the additional cost which he has incurred, for so many castings as the defendant might have manufactured after the patterns were fur- nished, and before' the time specified in the contract for the completion of the work. Florence Machine Co. v. Daggett, 135 Mass. 582 (1883). 16. If, after suit brought upon a bond, the obligor performs the condition of the bond, the plaintiff is entitled to judgment for nom- inal damages. Shattuck v. Adams, 136 Mass. 34 (1883). 17. In an action upon a recognizance, given by an appellant from a judgment of an infe- rior court for damages and costs, under the St. of 1877, c. 236, § 1, requiring him " to enter and prosecute his appeal with effect, and to satisfy any judgment which may be entered against him in the Superior Court upon said appeal for costs," upon an entry of judgment for the penal sum of the recognizance, the appellee is not entitled to have execution issue for the amount of the original judgment, in- cluding costs, but only for the amount of the costs arising after the appeal. Robinson v. Masterson, 136 Mass. 560 (1884). 18. In an action for breach of an agreement to assign a policy of insurance upon a house sold by the defendant to the plaintiff, by rear son of which the policy became void, the measure of damages (the plaintiff having pro- cured no new insurance) is the cost of insur- ance for the unexpired term of the policy, and not the amount of the injury resulting from the subsequent burning of the house. Dodd V. Jones, 137 Mass. 322 (1884). 19. In au action against a common carrier for the loss of a package, delivered to him for carriage, containing a set of plans for a house, which have no market value and are useful only to the owner, the measure of damages is the cost of new plans, and other expenses rea- sonably incurred in procuring them, but does not include damages for the delay in construct- ing the house occasioned by the loss of the plans, if the carrier had no notice of the con- tents of the package, or of the use to which the plans were to be applied. Mather v. Amer- ican Express Co., 138 Mass. 55 (1884). 20. In an action by A. against B., for the breach of a written agreement, executed by A., his minor son, and B., for the employ- ment of the son during his minority by B., the measure of damages includes the reason- able expenses incuiTed by A. in obtaining new employment for his son after the breach, the wages earned by the son during his minority in such new employment being allowed in diminution of damages. Dickinson v. Tal- mage, 138 Mass. 249 (1885). 21. A machine was ordered to be made by an English manufacturer, to be fit for peculiar work in this country, which object was under- stood by him on accepting the order, but on the trial of the machine here it was found un- fit therefor. Held, in an action by the buyer against the seller, for breach of an express warranty, that expenses incurred by the buyer in a reasonable but unsuccessful attempt to adapt it to the purpose contemplated could be 271 DAMAGES, II. 272 recovered. Whitehead §• Atherton Machine Co. V. Ryder, 139 Mass. 366 (1885). 22. If a trustee sells securities belonging to the trust estate at a price less than their ori- ginal cost, and fraudulently appropriates the proceeds, a surety on his bond is chargeable, in an action thereon, with the value of such securities at the time of their sale and conver- sion, in the absence of evidence that the secu- rities had increased in value after the sale and during the continuance of the trust. McKim V. Blake, 139 Mass. 593 (1885). 23. If a deed of laud reserves to the grantor, his heirs and assigns, " the spring of vfater on said premises, and the right to lay down, re- pair, and rebuild aqueduct and pipe, and con- vey said water ofi from said premises, together with the right to fix said spring and do any other act or thing necessary for taking oft said water," and a grantee of the land subject to the reservation puts in an aqueduct, which diverts the water continuously, an owner of the right reserved to the grantor is entitled, in an action against such grantee for an inter- ference with his rights, at least to nominal damages. Peck v. Clark, 142 Mass. 436 (1886). 24. If a person contracts to store fruit at a temperature not exceeding a certain height, and decay of the fruit, occasioned by the temperature being allowed to reach a greater height, causes a diminution of market value, such diminution, in an action for breach of the contract, may be considered as an element of damage. Hyde v. Mechanical Refrigerating Co., 144 Mass. 432 (1887). II. In Actions for Torts. 1. In an action against a common carrier for the conversion of goods delivered to a per- son unauthorized to receive them, who pays the freight upon them, the measure of dam- ages is the market value of the goods, less the freight, with interest from the date of the conversion, this fairly representing the plain- tift's interest in the good£, and indemnifying him for the injury he has sustained by the conversion. Forbegry. Boston §• Lowell Rail- road, 133 Mass. 154 (1882). 2. Where the owner of a chattel, who has transferred the possession thereof to another person, with the agreement that it should be- come his property on the payment of a certain sum in weekly instalments, brings an action against a third person for a conversion of the chattel after payment of some of the instal- ments and a failure to pay the remainder, the measure of damages is the whole value of the property, with interest from the time of the conversion. Colcord v. McDonald, 128 Mass. 470 (1880). 3. In an action by a father for the loss of service of his minor daughter, caused by her being debauched by the defendant, the plain- tifi is entitled to damages for the injury to his feelings caused thereby, although the declaration does not allege that she is his daughter. Hatch v. Fuller, 181 Mass. 574 (1881). 4. A mortgagee of personal property may maintain an action for conversion, without proof of a demand and refusal, against an officer who sells the mortgaged property on an execution against the mortgagor, although the mortgagor was the purchaser at the sale, and then received and has since retained pos- session of the property; and the measure of damages is the same as if the purchaser had been a stranger. Leonard v. Hair, 133 Mass. 455 (1882). 5. In an action by the owner of a cranberry meadow for the removal of his dam, the jury were instructed not to regard the injury caused by frost and insects, after the date of the writ, as distinct and independent grounds of dam- age, but that the true measure of damages was the diminution in value of the land for cranberi-y culture caused by the act of the defendant. Held, that the defendant had no ground of exception. Howes v. Crush, 131 Mass. 207 (1881). 6. At the trial of an action of contract for a breach of the agreement of a railroad cor- poration to carry the plaintift as a passenger on its railroad from S. to N., it appeared that he bought a ticket at S. , which entitled him to be carried to N. ; that the defendant's con- ductor refused to receive the ticket, and, when the train arrived at an intermediate station, the conductor, who was a railroad police offi- cer, arrested the plaintiff for evading his fare, and delivered him into the custody of two police officers, who detained him during the night in the place provided for arrested per- sons. Held, that the detention of the plain- tiff during the night, his discomforts in the place of detention, illness produced by the dampness of the cell in which he was con- fined, and the indignities which he suffered at the hands of the police officers, were not elements of damage which he could recover in this action, and that the court, in ruling otherwise, had overlooked the distinction be- tween the rules of damages applicable in actions of contract and in actions of tort. Murdock v. Boston Sj- Albany Railroad, 133 Mass. 15 (1882). 7. If A. is induced by the false representa- tions of B. to buy property of him, and to give in payment therefor his promissory note in- dorsed by C, which, before maturity, is trans- ferred by B. for value to an innocent purchaser, to whom C. pays it, and if A. rescinds the sale, or the property bought by him is oi no value, he may recover, in an action against B., the amount paid by C, with interest from the time of such payment. Grant v. Mellen, 134 Mass. 335 (1883). 8. A bailee brought an action of tort for the conversion of goods. His bailor subse- quently brought an action of replevin and obtained possession of the goods. In the re- plevin suit a finding was made for the defend- ant, for want of a demand before bringing the action, and the case was continued to await the determination of the action in tort. Held, that these facts showed no ground of defence 273 DECLARATIONS. 274 to the recovery of full damages by the plaintiff in the action of tort. Pratt v. Boston Heel §• Leather Co., 134 Mass. 300 (1883). 9. A delivered a quantity of hides to B. to be by him tanned, curried, and sold; and out of the proceeds derived from the sale, B. was to pay A. a certain sum, at which the hides were charged to B., and to retain the balance of the proceeds of the sale for his labor on the hides and for his services in selling the same. Until thus tanned, curried, and paid for, the title to the hides was to remain in A. B. died before the process of tanning and currying was com- pleted, and A. immediately took possession of the hides and completed this process and sold them for a sum stated, which was their value at the time A. took possession of and sold them. Held, in an action by B.'s adminis- trator against A., that the contract between A. and B. was not so personal in its character that it was determined by the death of B. ; and that the administrator was entitled to re- cover only the difference between the amount at which the hides were charged to B. and the amount realized from the sale by A. While v. Allen, 138 Mass. 423 (1882). 10. If a pei'son, who has been struck by a locomotive engine, remains in a perfectly un- conscious condition until his death, his admin- istrator is not entitled, in an action against the corporation owning the engine, to recover substantial damages, in the absence of evi- dence of any considerable expense or loss in- curred between the time of the injury and the death. Tully v. Fitchburg Railroad, 134 Mass. 499 (1883). 11. In an action for a violation of the plain- tiff's right to lateral support, by so digging upon the defendant's adjoining land as to cause a portion of the plaintifi's land and a stone wall upon it to fall, and to endanger trees which have been set out upon the land, designed for a burial-place, which design is not known to the defendant, although the de- fendant is guilty of gross carelessness, the measure of damages will not include injury to the plaintiff's feelings. White v. Dresser, 135 Mass. 150 (1883). 12. If a person buys a horse, in reliance upon false representations by the seller that the horse is safe and not afraid of the cars, and is injured by reason of the horse being frightened by the cars, and running, he may maintain an action against the seller for such injuries; and the facts that the accident did not occur until five weeks after the sale, dur- ing which time the horse had been driven safely on several occasions, and that the horse, after being frightened, ran three fourths of a mile, and then turned from the highway to- wards a place where it had been accustomed to stand, and in so doing overturned the vehicle in which the buyer was riding, are not, as matter of law, conclusive that the vice of the horse did not cause the injui-y, but are for the jury. Allen v. Truesdell, 135 Mass. 75 (1883). 13. If the plaintiff in an action proves an invasion of his rights by the defendant, he is entitled to recover at least nominal damages. Hooten v. Barnard, 137 Mass. 36 (1884). 14. Damages for the breaking of the plain- tiff's wagon and harness, in consequence of tlie unkindness of a horse sold to him by the defendant, cannot be recovered in an action of tort for a breach of a warranty that the horse was kind, which, it is alleged, the de- fendant knew was false. Case v. Stevens, 137 Mass. 551 (1884). 15. In an action for breaking and entering the plaintiff's close, and placing thereon a quantity of earth, the benefits to the plain- tiff's land arising from placing the earth upon it may be considered in estimating the amount of damages, although the answer contains a general denial only. Mayo v. Springfield, 138 Mass. 70 (1881). 16. In an action by a married woman, liv- ing with her husband, for personal injuries sustained by her, she is entitled to recover for the diminution of her capacity to labor, re- sulting from the injuries. Jordan v. Middle- sex Railroad, 138 Mass. 425 (1885). 17. If, after the bringing of an action by a mortgagor against a third person for the con- version of the mortgaged property, the mort- gagee takes possession of it for breach of the condition of the mortgage, such taking is an application of the property for the benefit of the mortgagor, and should be considered by the jury in mitigation of damages, although the foreclosure was not complete at the time of the trial, and although the mortgagee has sold a portion of the mortgaged property, and has transferred another portion to the defend- ant. Dahill V. Booker, 140 Mass. 308 (1885). 18. In an action for an assault and battery, committed in arresting the plaintiff illegally, he is entitled to recover compensation for the loss of his time, and for the indignity suffered by him. Morgan v. Curley, 142 Mass. 107 (1886). DAY. See Time. DEATH. Effect of death on contracts, see Contract, VI., pi. 1, 2. Presumption of death, see Evi- dence, I. DECEIT. See CoNSFiBAcr; False Pretences; Fraud. DECLARATION". See Pleading. DECLARATIONS. See Evidence. 275 DEED, I., IL, III. 276 DECREE. See Equity Pleading; Judgment. DEDICATION. See Way. DEED. I. Parties. 11. Execution and Delivery. in. Acknowledgment and Kegisteation. IV. Validity and Effect. V. Coxsthuction. See also Aqueduct; Boundary; Condi- tion ; Contract ; Covenant ; Dower ; Easement; Equity; Estate Tail; Es- toppel; Evidence; Execution; Execu- tor; Fraud; Grant; Guardian; Home- stead ; Mortgage ; Power ; Release ; Tax; Trust; Vendor and Purchaser; Way. I. Parties. Disability of Indian to convey, see Indian. 1. A. and B. were in partnership. B. died, and A. was appointed his administrator. Subsequently, to secure his debt to the firm, a debtor of the firm executed a mortgage of land, in which the consideration was stated to be paid by "A. and the estate of B.;" the same form was used in designating the gran- tees; and a power of sale was given to " said grantees." Held, that A., as administrator, was sufficiently designated as one of the gran- tees; that the whole legal title was vested in him, one half to his own use, and the other as administrator. Look v. Kenney, 128 Mass. 284 (1880). 2. The assent in writing, required by St. 1857, c. 249, § 2, of a husband to his wife's deed of her real estate, is sufficiently shown by the insertion of his name in the attestation clause, " in token of relinquishment of his right in the above-named premises," with his signature and seal. Chapman v. Miller, 128 Mass. 269 (1880). 3. A. made a deed, and it was agreed that his wife should sign it in token of her release of homestead. She did not sign for five years afterwards, just before the deed was recorded, but in pursuance of the original agreement. Held, that her signature had the same efiect to bar the right of homestead as if it had been made simultaneously with her husband's. Howes V. Burt, 130 Mass. 368 (1881). 4. If land is conveyed to J. S. and there are two persons of that name, a father and a son, there is no presumption that the conveyance is to the father; and evidence is admissible to show who is, in fact, the grantee. Simpson v. Dix, 131 Mass. 179 (1881). 5. A deed of land to a voluntary unincor- porated association, which is well known, and all the members of which may be ascertained, but which is not one of the class authorized by the Gen. Sts. c. 30, § 24, to take and hold real estate, may be construed as a grant to those who are properly described by the title used in the- deed; and such persons are ten- ants in common of the land conveyed. Byam V. Bickford, 140 Mass. 31 (1885). II. Execution and Delivery. 1. An assignment of a mortgage of land from a loan and fund association, concluding, " In witness whereof the said association, by J. S., its president, duly authorized for this purpose, has hereunto set its seal, and the said J. S., president as aforesaid, has here- unto set his hand," signed " J. S., President of," (giving the name of the association), and sealed, is in form executed by the asso. elation. Murphy v. Welsh, 128 Mass. 489 (1880). 2. It may be shown by parol evidence that the date recited in the in testimonium clause of a mortgage is not its true date, from which the fifteen days, limited by St. 1874, c. HI, for the recording thereof, begin to run; the word "date," in the statute, refers to the day of the delivery of the deed. Shaughnessy v. Lewis, 130 Mass. 355 (1881) ; Orcutt v. Moore, 134 Mass. 48 (1883). 3. A. executed a deed of land, and placed it in B.'s hands, directing B. to keep it and to deliver it to the grantor named therein after A. 's death. Held, that A. might revoke the deed at any time; that B, was A.'s agent, and not agent or trustee for the grantee. Hale V. Joslin, 134 Mass. 310 (1883) 4. A., by a deed poU, conveyed land to B., and B. conveyed it to C. by a deed which re- cited that the premises were the same con- veyed by A. to B. Held, in an action by A. against B. on a contract contained in their deed, that the deed from B. to C. was admis- sible to prove that B. had accepted the deed from A. Locke v. Homer, 131 Mass. 93 (1881). 5. If an unrecorded deed of land is found, at the death of a grantee, in his pocketbook in his possession, it will warrant a finding that the deed was duly delivered to him. Butrick v. Tillon, 141 Mass. 93 (1886). III. Acknowledgment and Registration. 1. Land conveyed to a single woman was attached after her marriage, in an action brought against her by her maiden name, the creditor being ignorant of the marriage. Judgment was afterwards recovered against her by the same name, and the land was sold on execution. After the attachment and be- fore judgment, the woman, by her married name, and adding her former name, mort- gaged the same land to a person who had no actual notice of the attachment. Held, that 277 DEED, IV., V. 278 the attachment took precedence of the mort- gage, and that the fact that, after her mar- riage and before the attachment, she made a conveyance of other land in the same county by her married name, was not constructive notice to the attaching creditor of the mar- riage. Cleavelami v. Boston Five Cents Sav- ings Bank, 129 Mass. 27 (1880). 2. A. conveyed a parcel of land to B., and B., as part of the same transaction, recon- veyed the land to A. The first deed was at once recorded, but the second deed was not recorded until some months afterwards, it being the intention of the parties that it should not be recorded, in order that the record title should be in B. Held, that a creditor of B., without notice of the unre- corded deed, could attach the land as his property. Woodward v. Sartwell, 129 Mass. 210 (1880). 3. A., upon taking a deed of premises con- veyed to his grantor under an execution sale, found upon the record that a mortgage dated before the time of the attachment under ^hich the levy was made, but recorded after the attachment, had been discharged by the assignee of the mortgage, and full payment of the debt acknowledged. After A. had taken his deed, the mortgagee assumed to sell the premises under the power of sale contained in the mortgage, and the assignee recorded a paper, stating that he had made a mistake in discharging the mortgage, and intended to assign it to the tenant. Held, that A.'s title was in no way affected by the proceedings aforesaid. Gallagher v. Galletley, 128 Mass. 367 (1880). IV. Validity and Effect. 1. A grantee who has accepted a deed poll, by the terms of which he " assumes and agrees to pay " a certain mortgage on the land " and save the grantor harmless therefrom," cannot, in an action upon his agreement, no fraud in the execution or delivery of the deed being suggested, show by oral evidence that he never agreed to assume and pay the mortgage, nor authorized nor knew of the insertion of such an agreement in the deed. Muhlig v. Fiske, 131 Mass. 110 (1881). 2. If the real consideration of a deed of land is an oral promise of the grantee to hold the title and manage the property in trust for the benefit of the grantor and her children, and the grantee has performed, and is ready and willing to perform, his promise, the grantor Ciinnot maintain an action against him to re- cover the consideration stated in the deed; and oral evidence is admissible to show what the real consideration was. Twomey v. Crow- ley, 137 Mass. 18i (1884). 3. A deed of land, which is not executed by all those who purport to be grantors therein, conveys the interest of those who executed it. Butrick v. Tiltnn, 141 Mass. 93 (1886). 4. A deed of land conveys no greater title than the grantor has. Litchfieia v. Ferguson, 111 Mass. 97 (1866). 5. At the trial of a writ of entry, in which the demandant declared on his demesne as of fee, and the plea was nul disseisin, it appeared that the demanded premises were at one time owned by A., who, in 1848, conveyed them to the tenant by a deed which was not re- corded; that, in 1876, A. conveyed them to B., and, in 1881, B. conveyed them to the de- mandant, both deeds being absolute in form and duly recorded. There was evidence that, when B. received the deed from A., he made an oral agreement to reconvey to A. on the performance of certain conditions, which were not performed. Neither B. nor the de- mandant had knowledge of the existence of the prior deed to the tenant. Held, that the demandant was entitled to judgment. Held, also, that the St. of 1883, c. 223, § 14, relating to equitable defences in actions at law, could not avail the tenant. Sherman v. Galbraith, 141 Mass. 440 (1886). V. COKSTETJCTION. For decisions respecting boundaries, see Bocndaky; Way. 1. In a conveyance of a parcel of land by several metes and bounds, the omission of one boundary line is unimportant, if there is suf- ficient in other parts of the deed, as applied to the particular premises, to show the ex- tent and limits of the parcel intended to be conveyed. Woodward v. Nims, 130 Mass. 70 (1881). 2. A deed of five pai-cels of land contained the following clause: " Possession to be given the said grantee of the house and garden above specified (the first parcel) immediately and one undivided half of all the other tracts of land specified above, reserving the buildings now occupied by myself at my decease." Held, that the grantor intended to resen'e to himself only the buildings named, and not a life estate in the undivided half of the four parcels of land. Shannon v. Pratt, 131 Mass. 434 (1881). 3. A deed of land from P. to S. contained the following clause: "Except reserving all the pine trees or pine timber thereon standing and to stand and grow thereon for the term of ten years from " a certain day, " and longer by paying said S. ten dollars per year after the expiration of the ten years." Held, that the right of P. to the pine trees and tim- ber was lost by his failure to elect to have them stand and grow, longer, by any offer of payment to S. for more than a year after the expiration of the ten years named. Perkins V. Stockwell, 131 Mass. 529 (1881). 4. Land was conveyed in trust to permit A. and others to use it during their respective lives, and, on the purposes of the trust being accomplished, to convey it to certain children of A. by name, "and such other children of A. as shall then be living." Held, that the children named took contingent remainders only. Smith v. Rice, 130 Mass. 441 (1881). 5. A deed of land to " S. D., wife of A. D.," "to be held by said D. as a homestead," 279 DEED, V. 280 habendum " to the said S. D. and her heirs and assigns, to her and their use and behoof forever," is to be interpreted as ineaning that the premises are to be held by S. D., the grantee, as a homestead. Dunham v. Dunham, 128 Mass. 34 (1879). 6. A mere reference to a plan, in the de- scriptive part of a deed of a lot of land, does not import a stipulation by the grantor that the plan shall not, in any respect, be subse- quently changed in parts not adjacent to the land sold. Cooiidge v. Dexter, 129 Mass. 167 (1880). 7. A deed of a lot of land bounded on a street contained a condition that " no dwell- ing-house or other building shall be erected on the rear of said lot." The deed also stated that the building then on the land conformed to the condition. Held, that there was no ambiguity as to what was meant by the rear of the lot, although the same condition had been inserted in an agreement for a deed made when the land was vacant. Sanborn v. Bice, 129 Mass. 387 (1880). 8. The owner of a large tract of land di- vided it into lots, shown on a plan, and con- veyed one lot, rectangular in shape, bounding it beginning at a certain distance from the westerly corner of a fence around a distant lot, and thence by a line running around the lot conveyed, the courses and distances of which were given. The deed also contained a condition that the front line of the house should be a certain distance from the street on which it bounded; a condition that the house should occupy the entire vfidth of the lot; and a recital that the house then on the lot was in compliance with these con- ditions. An adjoining lot was conveyed to the same person by a deed containing a simi- lar description, and similar conditions and re- citals. The grantee then conveyed the first lot, using the same description as in the deed to him. Held, that his grantee had title to the centre of the partition wall between the two estates, even though the effect of measur- ing from the fence of the distant lot would be to place the whole of the partition wall in the second lot. Sanborn v. Rice, 129 Mass. 387 (1880). 9. The owner of a parcel of land granted, by deed duly recorded, a part of the land to A., and a right to maintain a dam on the other part; and afterwards conveyed to a third person the whole parcel, "reserving" all the rights of A., his heirs and assigns, therein. Held, that this created an exception, and not a reservation; and that the second grantee could not maintain an action on his grantor on the covenant of seisin in his deed, the covenant of seisin being qualified and lim- ited by the grant. Stockwell v. Couillard, 129 Mass. 231 (1880). 10. A deed of real estate contained the fol- lowing clause: "This conveyance is made upon the condition that the said C," the grantee, " will erect upon the premises a cot- ton factory within two years from the date hereof." Held, that this was a condition an- nexed to the estate conveyed, and not a per- sonal covenant with the grantor. Langley v Chapin, 134 Mass 82 (1883). 11. C. conveyed to J. "a tract of land called the T. lot, and described in two deeds, one from A. to S., dated June 23, 1862, and recorded book 656, page 145, the other in a deed from said S. to said A., and dated Oc- tober 17, 1862, and recorded book 665, page 564." At the time of the conveyance, C. owned six acres of the T. land, which was wild land. It had been conveyed to her in two parcels, which abutted on each other, with no fence between them. C.'s title to the first parcel was by deed from A. to S., dated June 23, 1862, and recorded book 656, page 145, and by deed from S. to C, dated Oc- tober 17, 1862, and recorded book 655, page 564. C.'s title to the second parcel was by deed from A. to C, dated June 23, 1862, and recorded book 656, page 146. Held, that both parcels passed by the deed of C. to J. Al- dnch V. Aldrich, 135 Mass. 153 (1883). 12. A testator gave certain lands, including an undivided half of his homestead estate, to his son for life, and, after the son's death, to the testator's heirs at law in fee. The lands were sold during the lifetime of the son for non-payment of taxes, the undivided half of the homestead estate being conveyed to P., the husband of one of the heirs. P. conveyed the title so acquired, and the other purchasers at the tax sale made conveyances, so that this title was acquired by several of said heirs. They, together with P., conveyed to S. by quitclaim deed all the right, title, and interest which was conveyed to P. by the deeds of the collector of taxes, in said lands, " meaning hereby to convey no other rights which we have in said estates than were acquired by said collector's deeds;" and containing the usual covenant against incumbrances and of warranty. Held, on a writ of entry by said heirs, gi'antors in the deed, against S., that the deed purported to convey only such title as was conveyed by the tax deeds to P. ; and that the covenants in said deed were limited to an estate acquired under the tax deeds, and did not estop the demandants from setting up any other title in themselves, nor from deny- ing the validity of the tax sale. Sanford v. Sanford, 185 Mass. 314 (1883). 13. The owner of a farm sold to B. the wood and timber on a lot of land described as "on the west side of the H. pasture, so called, containing about two acres, be the same more or less." On the same day, a deed of the farm was made to A. " excepting Etad reserving the wood and timber on the H. land." At the trial of an action brought by A. against B. for cutting down eight trees, it appeared that on the west side of the H. pas- ture there was a wooded tract of land con- taining about two acres; that some twenty rods off in the southwesterly portion of the pasture were the eight trees in question, stand- ing alone, and about four to six rods apart; and that these trees were of value as shade trees, and were also of value for wood and timber. Held, that these trees passed to A. by the deed to him, and were not embraced in 281 DEED, V. 282 the bill of sale to B. Howard v. Pepper, 136 Mass. 28 (1883). 14. A. died seised of a parcel of land bound- ing on a street 128 feet. There was set ofi to his widow, as dower, a parcel at the northerly end, measuring 49 feet on the street, and bounding southerly by a fence. Subsequently, by a partition among the heirs of A., the re- mainder of the land became the property of B., who conveyed it, through a third person, to his wife. On the death of the widow of A., her administrator assumed to convey the es- tate set ofi to her in dower, and included in the boundaries a strip of land south of the dower estate, making the measurement on the street 51 feet 7 inches, and B. and his wife executed a deed of release to the grantee of the same parcel. The names of both ap- peared in the granting part of the deed. The form of the covenants was, " I do hereby covenant," &c., and the wife released her right of dower and homestead in the granted premises. Held, that the deed passed the title of the wife in the whole parcel de- scribed in the deed. Smith v. Carmody, 137 Mass. 126 (1884). 15. Three undivided fourths of a parcel of land were owned by A., his wife B., C. the wife of P., and D. A deed of the land stated, in the granting clause, that " A., in the right of his wife B., P., in the right of his wife C, and C. in herown right, and D." conveyed the same to E. ; "it being the intention of this instrument to convey to said E. three undi- vided fourth parts of the above-described laud, being all our right and interest therein ; . . . and we, the said grantors, for ourselves and our heirs, ... do covenant with the said E. ; ... in witness whereof, we, the said A., B., P., C, and D., with M., wife of D., in token of her release of all right and title of or to dower in the granted premises, have hereunto set our hands and seals." Held, that by the deed B. conveyed all her interest in the land included therein. Bent v. Rogers, 137 Mass. 192 (1884). 16. A grant was made to A., her heirs and assigns, habendum to A., "to her sole and separate use, free from the control or inter- ference of any husband she may have, and to the use of heir heirs and assigns forever." Held, that the word " heir " was a clerical mistake for " her," and that she took an es- tate in fee simple. Huntington v. Lyman, 138 Mass. 205 (1884). 17. H. died seised of an undivided half of a parcel of land, and devised all his real estate to A., B., and C. The other half of the land was owned by E., who died after H., intes- tate, leaving A., B., and C, and several others, his heirs at law. After E.'s death, all his heirs, including A., B., and C, joined in a warranty deed to N., in which they de. scribed themselves as next of kin of E., of "the following described tracts or parcels of land," describing eight tracts by metes and bounds, the description of the eighth tract beginning as follows: "8th tract adjoining the last tract and being an undivided half thereof;" and describing the whole tract by bounds. The eighth tract was the same that had been owned by H. and E., and an undi- vided half of which had been devised by H. to A., B., and C. They subsequently gave a deed of an undivided half of it to M., who brought an action against them for breach of the covenant of seisin in the deed. Held, that an undivided half only of the eighth tract passed by the deed to N. ; and that the action could not be maintained. Maxwell v. Hosmer, 138 Mass. 207 (1884). 18. A. , the owner of a tract of land contain- ing about sixteen acres, used by him as a home- stead, purchased with his sons B. and L. a lot called the T. lot, which adjoined his lot on the west and on the south, and another lot, called the S. lot, which lay westerly of the T. lot, and southerly of a portion of the homestead lot. After the purchase, the three lots were used together for farm purposes, and the fences be- tween the lots were taken down. A barn on the lot of sixteen acres was moved partly on to the T. lot, and was the only barn on the farm. The father by his will devised the lot of sixteen acres to his son B, on condition that he furnished support to the testator's widow, and the rest of his property to his sons B. and L. B. conveyed the lot of sixteen acres to J. and C, and B. and L. conveyed the S. lot and the T. lot to C. alone. J. and C. then conveyed to M. a lot of land contain- ing sixteen acres, " being the former home- stead of A.," subject to the provisions in the will of A. for the support of his widow. The deed described the land on the south and west as bounded by a line running east and south about a certain number of rods on the S. lot and the T. lot to a highway. The T. lot was but two rods in width, and the distance stated did not correspond precisely with the actual length of the lines, whether the T. lot was included in the grantor excluded. Held, that the T. lot was excluded. Held, also, that oral evidence was inadmissible to show that the parties intended that this lot should pass by the deed. Held, also, that so much of the barn as was upon this lot did not pass as ap- purtenant to the land granted. Adams v. Marshall, 138 Mass. 228 (188.5). 19. A quitclaim deed conveyed " a certain right of land lying in the town formerly called B.," and " also all the right we have in any estate, real or personal, belonging to the estate of J., late of H., deceased." Held, that the deed conveyed all the right which the grantors had in the real estate in H. which belonged to J. Butrick v. Tilton, 141 Mass. 93 (1886). 20. A., being seised in fee of a parcel of land containing twenty-five acres, on which there were two dwelling-houses, one of which had been assigned to his father's widow as her dower, conveyed one undivided half of the dower estate to B. Subsequently the guardian of A. presented to the Probate Court a peti- tion setting forth that it was necessary to sell some part of a certain piece of land containing about twenty-five acres, with two dwelling- houses and other buildings thereon, one of the houses being occupied by the widow (naming her) as her dower, and that the ward was 283 DEED, V. 284 seised of one half of what she holds, and pray- ii\y. 1. Under Gen. Sts. c. 117, § 4, providing that the jurisdiction assumed in any case by the Probate Court, "so far as it depends on the place of residence of a person, shall not be contested in any suit or proceeding, except in an appeal in the original case, or where the want of jurisdiction appears on the same record," it is no defence to an action by an administrator, that his appointment as admin- istrator was procured by his fraud and false statements respecting the place of residence of his intestate, unless the want of jurisdiction in the Probate Court to appoint appears of record. McFeely v. Scott, 128 Mass. 16 (1879). 2. A. , the guardian of a minor, at the time of his death, held the promissory note of B., payable on demand to his order as guardian. B. and C. were appointed executors of A.'s will, but no mention of the note was made in their inventory or accounts. C. was also ap- pointed guardian in place of A., and several payments were subsequently indorsed upon the note, leaving a balance due. C. died and D. was appointed guardian in his stead, and he refused to receive the note as the property of his ward. B. resigned his office as executor, and E. was appointed administrator with the will annexed of the estate of A., and brought an action against B. on the note. Held, that the note was extinguished as a contract; and that the amount due thereon having become assets in the hands of B. as executor of A., no action could be maintained upon it by E. Tarbell v. Jewett, 129 Mass. 457 (1880). 8. In an action by an administrator, more than two years after his appointment, against the widow of his intestate for the conversion of certain personal property, evidence that the estate was insolvent at the date of the writ is inadmissible, it not appearing that the estate had been represented to the Probate Court to be insolvent, or that any creditor of the estate had begun an action against the administra- tor; and the defendant is entitled to hold the property in controversy, which was received by gift from her husband. Fellows v. Smiih, 130 Mass. 378 (1881). 4. An administrator, who, within one year after his qualification, pays a debt of his in- testate, cannot recover it back by proof that the estate has been represented insolvent, and 457 EXECUTOR, VII. 458 commissioners have been appointed, without also showing that a decree of distribution has been made. Flint v. Valpey, 130 Mass. 385 (1881). 5. An administrator de bonis non, with the will annexed, of the estate of a person who, by his will, of which his wife was executrix, devised to her the income of his estate during widowhood, and the principal on her marriage or death, in equal shares, to his and her heirs, may maintain an action against her execu- tor for the proceeds of certain shares of bank stock, purchased by her with money which was a part of her husband's estate, and which, standing in her name at the time of her de- cease, are sold and transferred by her executor, the money so used by her being all the trust estate which she held, and there being no un- settled accounts between her as trustee and the trust estate. Sewall v. Patch, 132 Mass. 326 (1882). 6. B. received from A. a lot of hides, which B. was to tan, curry, and sell, and to pay from the proceeds a certain sum to A., retaining the rest for his services. The title to the hides was to remain in A. B. died before he had completed the labor upon the hides, and A. took possession of them. Held, that the con- tract was not so personal as to be determined by the death of B. , and that his administrator could recover from A. the difference between the amount at which the hides were charged to B., and the amount realized from the sale by A.. While v. Allen, 133 Mass. 423 (1882). 7. An action cannot be maintained against a railroad corporation by the personal repre- sentative of one whose death is alleged to have been caused by negligence, it not ap- pearing that the death was not instantaneous. Corcoran v. Boston §• Albany Railroad, 133 Mass. 507 (1882). 8. A bill in equity may be maintained by the administrator of a deceased partner against the surviving partner, for a sale of letters pa- tent belonging to the partnership, and for an account of the profits received by the sm-viv- ing partner, from the use of the patent since the dissolution of the partnership. Freeman V. Freeman, 136 Mass. 260 (1884). 9. Section 33 of the Pub. Sts. c. 137, (St. 1880, c. 233,) applies only to an execution for a debt against the estate of a deceased person which has been rendered insolvent; and in an action by an executor, in which the defendant files a declaration in set-off, and obtains judg- ment in his favor, he is entitled to an execu- tion for costs against the executor de bonis propriis, under the Pub. Sts. c. 166, § 8, al- though the estate of the plaintiff's testator has been represented insolvent. Perkins v. Fellows, 136 Mass. 294 (1884). 10. An executor, who was also the residuaiy legatee, gave a bond to pay debts and lega- cies. He took the entire estate into his hands and filed no inventory. The estate was suffi- cient to pay all debts except a claim of his own. After he had applied a portion of the assets to his own claim, he was sued as execu- tor by a creditor of his testator, who recovered judgment, which was in part satisfied by the sale of real estate of the testator. He was then sued upon the bond, and paid the penal sum named therein in further satisfaction of the judgment. Held, that, under the Pub. Sts. c. 168, § 10, the creditor could maintain scire facias against him to recover the balance due. Jenkins v. Wood, 144 Mass. 238 (1887). 11. A bill in equity, by the administrator de bonis non, with the will annexed, of an es- tate, against the former executor of the will, alleging merely that the defendant, as execu- tor, sold real estate under a power in the will, and misappropriated the proceeds, and refuses to account for them, cannot be maintained as a bill for an account. Ammidown v. Kinsey, 144 Mass. 587 (1887). As to issuing execution for alimony against the estate of oue deceased, see Divokce. For a case involving facts upon which it was held that a creditor of an estate could not follow money specifically, see Equity. As to amendment of writ in suits by and against an administrator, see Amendment. Vn. Kepresenting the Estate Insol- vent; Proceedings thereupon. 1. An executor having a claim against the insolvent estate of his testator, which is dis- puted, must present it to the Probate Court, as provided in Gen. Sts. c. 97, §§ 26, 27, to determine the validity of his claim ; and not to the commissioners appointed under Gen. Sts. 0. 99. Green v. Russell, 132 Mass. 536 (1882). 2. A conveyed a parcel of land to B. by a, quitclaim deed, in which he reserved to him- self and wife a life estate therein, and cove- nanted that the premises were free from all incumbrances suffered by him, except said life estate. After this conveyance, but before the deed was recorded, A. mortgaged the land to a bank to secure the payment of a promissory note. On the same day, a previous mortgage on the land, given by A.'s grantor to the bank, and which A. had agreed in the deed to him to pay, and existing at the time of A.'s con- veyance to B., was discharged; each mort- gage being for the same amount. A. died, his estate was represented insolvent, and com- missioners were appointed under the statute. Held, that the bank could not prove before the commissioners its claim against A. 's estate for the full amount of the note, while it still held the mortgage. Bristol County Savings Bank v. Woodward, 137 Mass. 412 (1881). 3. The estate of a deceased person was rep- resented insolvent, and commissioners were appointed, who allowed a claim of a creditor, (who held a promissoiy note bearing interest at the rate of seven and a half per cent,) at a certain sum, vfhich was computed by adding the principal of the note and interest at the rate specified to the time of the death of the insolvent. After a payment of a dividend of fifty per cent, the e.state appeai-ing to be solr vent, the Probate Court passed an order that a second and final dividend of fifty per cent 459 EXECUTOR, VIII. 460 be paid upon all claims allowed, " with in- terest " to the time of payment. On June 1, 1881, the executor of the will of the insolvent paid the creditor the balance of his claim, as allowed by the commissioners, with six per cent interest from the time of the death of the insolvent to the times of the payments. On November 8, 1882, the creditor filed a pe- tition in the Probate Court, praying for a decree directing the executor to compute in- terest upon the petitioner's claim at seven and a half per cent, and to pay him such sum in addition to the sums already paid as such computation should call for. The judge of probate made a supplemental decree in ac- cordance with the petition. Held, on appeal to this court, that the adjudication of the commissioners was not in the nature of a judgment; and that the creditor was entitled to interest at the rate of seven and a half per cent. Held, also, that, if this was not the meaning of the order of the Probate Court, that court had the power to pass the supple- mental order. Held, also, that the creditor had not waived his right by accepting the second dividend, and by the delay in bringing his petition, it not appearing that the execu- tor had suffered any injury thereby. Bowers V. Hammond, 139 Mass. 360 (1885). 4. In 1869, A. bought of B. a parcel of land which was subject to a mortgage made by B. to a bank to secure his promissory note. The deed from B. to A. excepted the mort- gage from the covenant against incumbrances, and contained these words: "which mortgage the aforesaid A. assumes and is to pay and save me harmless for the same, that being a part of the aforesaid consideration." In 1871, A., by a quitclaim deed, conveyed the laud to C, covenanting that it was free from incumbrances made or suffered by him, and containing a covenant of warranty against the claims of all persons claiming under him. This deed was delivered in 1871, but was not recorded until 1880. In 1873, A. gave a mortgage on the land to the above-named bank, which had no notice of his deed to C. , to secure his own note for an amount similar to that of B.'s note to the bank, which was then paid and his mortgage discharged. The note of A. , who died in 1880, was unpaid, and the mortgage undischarged, when C. presented to commissioners appointed by the Probate Court on the insolvent estate of A. a claim for an alleged breach of covenant, which was disallowed; and C. appealed to this court. Pending the appeal, the land was sold under a power in the mortgage for less than suificient to pay the note. Held, that the claim of C. was rightly disallowed. Foster v. Woodward, 141 Mass. 160 (1886). 5. A. by his will devised the remainder of his estate to B., to be disposed of by him for such charitable purposes as he should think proper, and authorized him, or whoever should execute the will, to sell the real estate. The will also nominated B. as executor. B. was duly appointed executor, and sold the real estate, and died many years afterwards, not having rendered any account to the Probate Court; and his estate was insolvent. Held, that, under the St. of 1884, c. 293, an admin- istrator de bonis nan of the estate of A. was entitled to prove, before commissioners ap- pointed upon the insolvent estate of B., a claim for the amount received by B. from the sale of the real estate, and not accounted for. Held, also, that the burden of proof was on the administrator of the estate of B. to show that the money so received was expended by B. as directed in the will of A. Minot v. Norcross, 143 Mass. 326 (1887). See also ante, II. pi. 4. VIII. Payment op Debts and Legacies; Marshalling of Assets; Final Distribution to Heirs. 1. A testator bequeathed to his wife " the bank stock I hold in the bank." Held, that this was a specific bequest ; and that the widow was entitled to the stock, exonerated from incumbrances put upon it by the testa- tor. Johnson V. Goss, 128 Mass. 433 (1880). 2. A testator, owning a large number of shares of stock in a certain railroad company, bequeathed to several persons shares of stock in that company, amounting in the aggregate to a less number than he owned at the time of making his will and at his death ; and to some of these persons he gave also pecuniary legacies. To one he directed that a legacy should be paid in the bonds of another rail- road corporation at par, if he should possess them at his death. The will concluded with a residuary bequest of " all the rest, residue, and remainder of my estate" to nephews and nieces, with a like direction for the payment in railroad bonds of the portions of the chil- dren of a brother; and a clause empowering his executors to sell all real estate and per- sonal property, " excepting what I have here- inbefore disposed of." Held, that the be- quests of the shares of stock were specific. Metcalf V. Framingham Parish, 128 Mass. 370 (1880). 3. A testator, at the time he made his will, owned one hundred and eighty shares of stock in the C. Bank. By his will, he bequeathed to each of his two daughters " sixty shares of bank stock in the C. Bank; " and, after the will was made, he sold all his stock in that bank. Held, that these bequests were gen- eral; and that each daughter was entitled to sixty shares of stock in the C. Bank, or to their equivalent in money. Johnson v. Goss, 128 Mass. 433(1880). 4. A testator gave to his widow the use and improvement of certain real estate, to- gether with his horse and carriages, and an annuity of one thousand dollars, " the same to be paid from the income of my property;" and devised to his daughter the residue of his estate, real and personal, after payment of debts, expenses, and " the legacies hereinbe- fore mentioned." No trustee was named in the will or appointed by the Probate Court. Held, that the annuity to the widow was a 461 FALSE IMPRISONMENT. 462 charge upon the whole estate; and that she could maintain an action for the annuity against the administrator de bonis non witK the will annexed, while the estate wag in his hands unsettled, if the gross income of the estate was more than sufficient to pay the an- nuity, although the net income was not. Smith T. Fellows, 131 Mass. 20 (1881). IX. Accounts and Settlements. See Appeal, I. pi. 9 ; TV. pi. 4, 6; Guar- dian ; Trust. X. Foreign Executors and Ancillary Administration. 1. Under Gen. Sts. c. 117, § 2, the Probate Court has jurisdiction, upon the petition of a creditor, to grant administration of the estate of a person who dies a resident of another State, leaving only real estate in this Common- wealth, although his estate is solvent, and an administrator has been appointed in the State where he resided. PrescoU v. Durfee, 131 Mass. 477 (1881). 2. If a person residing in this Common- wealth is appointed executor of a will in another State, and ancillary letters testamen- taiy are also granted to him here, and his final account, showing that the bitlance in his hands has been paid to him as executor under his appointment in the other State, is allowed by the Probate Court here, this court has no jurisdiction of a bill in equity to construe the will and marshal and distribute the estate. Emery V. Batchetder, 132 Mass. 452 (1882). 3. An administrator, acting under letters of administration issued in another State, brought an action in this Commonwealth to recover a debt due his intestate, and obtained a verdict, the objection that the plaintifE was without authority to sue not having been taken. After verdict and before judgment, letters were taken out in this Commonwealth. Held, that the defendant had no ground of complaint that his petition for review was re- fused. Dearborn y. Mathes, 128 Mass. 194 (1880). EXECUTORY DEVISE. See Devise, VI. EXEMPTION. From attachment and execution, see Exe- cution, IV. ; Homestead. From taxation, see Tax. EXPERT. See Evidence, IV. (e). EXPOSURE OP PERSON. See Lewdness. F. FACTOR. See Agent, VII. FALSE IMPRISONMENT. See Arrest; Infant, pi. 9; MALiciots Prosecution; Police Officer. 1. To maintain an action for a malicious ar- rest, authorized by the certificate of a magis- trate issued under St. 1877, c. 250, § 5, the burden is on the plaintiff to prove that, at the time the defendant procured the arrest, he had no probable cause to believe that the plaintiff intended to leave the State; and it is not enough to prove that the plaintiff did not in fact intend to leave the State. Legallee v. BlaUdeU, 134 Mass. 473 (1883). 2. A person who has procured the arrest and imprisonment of another on a lawful warrant is not liable to an action for false imprison- ment, although his object in making the com- plaint upon which the warrant was issued was to enforce the payment of a debt. Mullen v. Brown, 138 Mass. 114 (1884). 3. In an action for an illegal arrest, made by authority of a certificate issued by a magis- trate upon the affidavit of the clerk of the de- fendant's attorney, evidence is admissible, on the issue of the authority of the clerk to act in the matter, of the presence and conduct of the defendant at the hearing, after the arrest, upon the application of the plaintiff to take the oath for the relief of poor debtors, although such hearing was subsequent to the date of the writ in the action for the illegal arrest. Shattuck V. Bill, 142 Mass. 56 (1886). 4. In an action for an assault and false im- prisonment, there was evidence that the stock 463 FALSE PRETENCES. 464 of goods in the defendant's shop had been at- tached in the defendant's absence, and the plaintiff had been put in as keeper; that, on the defendant's return, he was informed that the plaintiff had taken money from the money- drawer; that he accused the plaintiff of it, who said nothing ; and that he thereupon ar- rested the plaintiff, without a warrant. The judge instructed the jury, that, the plaintiff being rightfully in the shop, the defendant had no right, without a warrant, to arrest him, although he had reasonable cause to be- lieve that the plaintiff had committed a felony therein, unless the plaintiff, by an improper omission to disclose his business in the shop, contributed to induce such belief. The judge also refused to rule that, if the defendant was notified in the hearing of the plaintiff that the plaintiff had taken the money, and the plaintiff neglected to make any explanation, such neglect may have justified the arrest. Held, that the defendant had no ground of exception. Morley v. Chase, 143 Mass. 396 (1887). 5. An action for false imprisonment will lie for the misuse or abuse of legal process after it has issued, beyond the mere fact of arrest and detention. Wood v. Graoes, 144 Mass. 365 (1887). 6. In an action by A. against B. for false imprisonment and the abuse of legal process, there was evidence that A. had formerly been the treasurer of a railroad corporation, and, as such, had given a bond with B. as surety; that the corporation brought an action upon the bond against A. and B., for money wrong- fully appropriated by A. to his own use in payment of a claim for services, without the approval of the board of directors; that the corporation recovered judgment; that B. procured an indictment to be found against A. for the purpose of compelling him to pay the debt, on which he was arrested and held until he made a settlement. A. offered to show that, at the trial of the action on the bond, the defendants offered the testimony of a majority of the directors who were present at the meeting where his claim was considered, to show that they understood that the claim was to be paid in full, which evidence was excluded; and that, when the case came be- fore the Supreme Court, it was submitted on a brief by B., who acted as counsel; and that in his brief he assumed as a fact the existence of the assent of a majority of the directors. Held, that the evidence as to the brief was inadmissible to show that B. knew the fact to be as therein assumed. Wood v. Graves, 144 Mass. 365 (1887). 7. If a person does nothing more than to make a complaint to a magistrate against an- other for an offence, and the latter is arrested under a warrant duly issued by the magis- trate, who has jurisdiction of the subject matter and of the party, the complainant is not liable to an action by the arrested person for assault and false imprisonment, although the complaint is defective. Langford v. Boston |r Albany Railroad, 144 Mass. 431 (1887). FALSE PRETENCES. See also Conspiracy; Fkaud. 1. A person, who by false and fraudulent representations obtains the consent of a city to the entry of a judgment in his favor against it in an action then pending, and the pay- ment of a sum of money by the city in satis- faction of that judgment, cannot be convicted of obtaining money by false pretences, under Gen. Sts. c. 161, § 54. Gray, C. J., Ames & SouLE, JJ., dissenting. Commonwealth v. Harkins, 128 Mass. 79 (1879). 2. A false statement by the seller, in the negotiations for the sale of a horse, that he is " sound and kind," if made as a representa- tion of a fact and known to the seller to be false, is a false pretence, within Gen. Sts. c. 161, § 54. Commonwealth v. Jackson, 132 Mass. 16 (1882). 3. An allegation in an indictment charging two persons jointly with obtaining a loan of money by false pretences is a descriptive alle- gation, and is not supported by proof of a loan to one of the persons only. Common- wealth v. Pierce, 130 Mass. 81 (1880). 4. An averment in an indictment of obtain- ing a sum of money by false pretences is not supported by proof of obtaining a certificate of deposit of a bank. Commonwealth v. Howe, 132 Mass. 250 (1882). 5. An indictment alleged that the defend- ant obtained money from persons named, by falsely pretending to them that a certain great fund had been left under a legacy for the establishing of a charitable institution of de- posit for a certain class of people ; that such an institution had been established and car- ried on ; that there was a branch department of such institution in a certain city ; and that the defendant was the president of such branch department. There was evidence at the trial that the defendant's assignee in insolvency told the defendant that there was a deficiency of property to a large amount, and urged him to tell him if he had any means to make up this deficiency, and about the circumstances of the institution and in regard to its direc- tors; and that the defendant refused to give him any information as to any of these par- ticulars. Held, that evidence was admissible to show that the defendant had received from other persons than those named in the indict- ment a sum larger than the deficiency, and had given notes and deposit-books therefor; and that this evidence, coupled with the de- fendant's refusal to give the information de- sired by the assignee, and proof that the sum received had mostly disappeared, and that no trace of such institution or of the disposal of the property could be found, tended to show that the defendant's representations in regard to the existence of the institution were false. Commonwealth v. Howe, 132 Mass. 250 (1882). The indictment aforesaid alleged that the defendant made certain false pretences, and "then and there asked. and requested" the person defrauded " in consideration thereof to pay and deliver " to the defendant the money in question. Held, that the indictment sufiS.- 465 FALSE PRETENCES. 466 ciently set forth the defendant's purpose in making the false pretences. Held, also, that the request need not be literally proved ; and that it was no defence that the defendant might have obtained money from other per- sons by similar pretences, and omitted to do bo; or that in cases where he had obtained other money, either by false pretences or otherwise, he had repaid the same. Common- wealth V. Howe, 132 Mass. 250 (1882). 6. At the trial of an indictment, under Gen. Sts. 0. 161, § 54, for obtaining the property of another by false pretences in the sale of a horse, evidence of similar pretences made by the defendant in sales to other persons a short time previously to the sale in question is in- admissible for the purpose of showing the intent with which the defendant made the sale of the horse. Commonwealth v. Jackson, 132 Mass. 16 (1882). 7. At the trial of an indictment for effect- ing the sale and delivery of certain sheep by A., on the false pretences of the defendant that he had money in the bank upon which a check given by the defendant in payment of the price of the sheep was drawn by him, and that it was a good and available check for the amount thereof, there was evidence that A. agreed to sell the defendant the sheep for cash at a certain price per pound ; that they were then weighed, and were recorded by the weigher to the defendant in a book kept for that purpose ; that, " about an hour or so" after the weighing, A. and the defendant met to settle, no bill having been before made out, nor the weights reckoned; that the weights were then reckoned; that A. demanded cash, but was induced to take a check for the amount by the representations of the defend- ant that he had the money in the bank, and that the check was good. There was contra- dictory evidence as to whether, by custom, the weighing of the sheep and the recording in the weigher's book constituted a delivery. On this point the jury were instructed, that, if the defendant proved the custom, yet if the sale to the defendant was a sale for cash, then it was a conditional sale, and vested no title in the defendant until delivery; that a mere constructive, or even a manual delivery, would not in such a case deprive the owner of his property; and that, to have such an effect, the delivery must be absolute, under such circum- stances as to show a waiver of such condition. Held, that the ruling was correct. Common- wealth V. Deolin, 141 Mass. 423 (1886). 8. An indictment alleged that the defend- ant, at a time and place named, with intent to cheat and defraud, " and with the view and intent to effect the sale and delivery herein- after mentioned, did then and there unlaw- fully, knowingly, and designedly falsely pre- tend and represent to " A. certain facts stated ; and that A., " then and there believing the said false pretences and representations, so made" by the defendant, " and being de- ceived thereby, was induced by reason of the false pretences and representations, so made as aforesaid, to sell and deliver, and did then sell and deliver," to the said A. certain goods described, of the property of the said A. ; and the said defendant "did then and there receive and obtain the said goods ... by means of the false pretences and representa- tions aforesaid." Held, that the indictment sufficiently alleged a sale, that the owner was induced to sell and deliver the property, that the defendant obtained it by means of the false pretences, and that the defendant knew the pretences to be false. Commonwealth v. Devlin, 141 Mass. 423 (1886). 9. An indictment on the Pub. Sts. c. 203, § 59, for obtaining money by false pretences, in the sale of an interest in a partnership formed for medical purposes, alleged, as the false pretences, that a certain business in which the defendant was engaged was a busi- ness of great value, profit, extent, and respect- ability ; that certain pictures on the walls of the defendant's office were the property of the defendant and belonged to the business ; that the defendant owned a secret formula, by which a remedy for a certain disease was compounded, which was perfectly safe and harmless in its application ; that one of the partners was a skilful physician, in good and regular standing, and able to apply said rem- edy, and prescribe for every case of disease which might come into the office; that a certain remedy and appliance was a complete battery, and was patented by the defendant; that said appliance had been sold by the de- fendant in large quantities and at a great profit; that the defendant's interest in the business was of a certain value ; and that one of the then partners had paid a certain sum for his interest. Held, that a motion to quash the indictment on the ground that the pre- tences set forth were not within the statute was properly overruled. Commonwealth v. Blood, 141 Mass. 571 (1886). 10. At the trial of an indictment for ob- taining money by false pretences with the view of effecting the sale of the defendant's interest in a partnership, the defendant offered in evidence the articles of copartnership pre- viously entered into by him, and the lease of certain rooms where the business was carried on. Held, that the evidence was inadmissible. Commonwealth v. Blood, 141 Mass. 571 (1886). 11. At the trial of an indictment for ob- taining money of A. by false pretences, the bill of exceptions stated tUat evidence offered by the defendant was excluded, namely, that one B., a lawyer, said to the witness that, if the defendant did not pay a certain sum, B. and A. would not rest until the defendant was in pi-ison, but failed to show that B. was acting as the agent of A. in making the threat. Held, that the defendant had no ground of exception to the exclusion of the evidence. Commonwealth v. Blood, 141 Mass. 571 (1886). 12. At the trial of an indictment against two persons for obtaining money by false pretences, letters of one of the defendants to the other, which tended to prove the of- fence charged, were admitted for this purpose. They also tended to show a scheme between the defendants to obtain- large sums of money 467 FELONY. 468 by fraud, of ■which the offence which was the subject of the indictment was a part. The jury were instructed that the evidence as to other transactions was not evidence of the commission of the offence charged, and was not directly evidence of the fraudulent pur- pose in the case under consideration, but yfas competent on the question of fraudulent in- tent, so far as it tended to show that there was one scheme of fraud of which the transaction in question was a part ; that it was competent to establish the fraudulent character of the scheme ; but that to establish this was not conclusive of the fraudulent character of the transaction in question •, that it still remained to show that this transaction was a part of the scheme and shared its fraudulent purpose; and that the real issue was the fraudulent char- acter of the transaction in question, and not that of any other transaction. Held, that the defendant had no ground of exception. Com- monwealth V. Blood, 141 Mass. 571 (1886). 13. An indictment for obtaining money by false pretences alleged that the defendant, at a time and place named, falsely represented to A. that the defendant was treasurer and sec- retary of a corporation established in another State; that the capital stock of the corpo- ration was $400,000; that $200,000 worth of said stock had been subscribed for and paid in in cash, which was chiefly invested in real estate where the corporation was located ; that the stock was worth, and was selling for, a certain sum per share, at said place; and that the defendant, on a later day named, by a letter written by him and received by A. on said day, falsely represented that the amount of capital stock subscribed for, paid in, and invested as aforesaid was $192,000, instead of $200,000, as previously stated by the defend- ant. At the trial, the government introduced evidence tending to prove the oral statements alleged to have been made by the defendant ; and, to prove the modification of these state- ments alleged to have been made subsequently by letter, introduced a letter written by the defendant to A., the material part of which was as follows: "The issue of additional stock in the" corporation " will not be made till " a day named, " as we want to dispose of about $8,000 more stock; we have sold $192,000 and want to make it $200,000, then one half of the capital stock will have been issued. About two thirds of this stock has been taken by old stockholders at par, but part of the stock has sold as high as " a cer- tain sum "per share. The new stock does not receive any dividend until " a day named. The judge refused to rule, as requested by the defendant, that there was no evidence to prove the representation as alleged in the indict- ment, or that there was a variance between the allegation and the proof as to the letter ; and instructed the jury, that, if they should find that the statement in the letter was a cor- rection of the oral statement previously made as to the amount of stock issued, then stated to be $200,000, they would be authorized to convict the defendant, and that the meaning of the letter was for them, but, if it related to a new issue of stock, they must acquit. Held, that the defendant had no ground of excep- tion. Commonwealth v. Wood, 142 Mass. 459 (1886). 14. Under an indictment for obtaining money by false pretences, a conviction may he had for falsely representing that the stock of a corporation was selling at a certain price, but not for falsely representing that it was worth a certain price. Commonwealth v. Wood, 142 Mass. 459 (1886), 15. An indictment alleging that, by reason of false representations made by the defendant to A., as to the stock of a corporation, A. was induced to deliver to the defendant, at a cer- tain town in this Commonwealth, a cashier's draft for the payment of a sum named, is sup- ported by proof that A. sent the draft to the defendant in another State, being directed so to do by a note written by the defendant and left at A. 's place of business in this Common- wealth, whether A. sent the draft from this Commonwealth by the hand of an agent of the defendant, or deposited it in the mail. Commonwealth v. Wood, 142 Mass. 459 (1886). 16. An indictment alleged that A., induced by certain false pretences made by the defend- ant, (which were set forth,) delivered to the defendant a certain sum of money, in exchange and in payment for a certain number of shares of stock. A bill of exceptions, alleged by the defendant and allowed by the presiding judge, which purported to set out all the evi- dence material to the questions raised, stated that there was evidence tending to show that A. was induced to send a check, " a copy of which is inserted in said indictment," to the defendant. No copy of a check was inserted in the indictment. Held, that a ruling, re- quested by the defendant, that the evidence would not warrant a conviction, should have been given. Commonwealth v. Wood, 142 Mass. 459 (1886). FALSE REPRESENTATIONS. See False Pretences; Fraud. FEES. See Costs; Officer. FELONY. See the various leading titles. It is an indictable offence at common law for one to counsel and solicit another to commit a felony, although the solicitation is of no effect, and the crime counselled is not in fact committed. Commonwealth v. Flagg, 135 Mass. 545 (1883). 469 FISH AND FISHERIES. 470 FENCE AND FENCE-VIEWERS. See Deed; Easkment; Impounding; Railroad; Way. 1. An action on Gen. Sts. c. 25, § 4, to re- cover double the value of a partition fence, rebuilt by the plaintiff, and double the amount of the fees of the fence- viewers for their ser- vices in relation thereto, cannot be maintained, unless the fence is built upon the line which divides the premises of the parties, if this is known and undisputed; and, in the absence of any adjudication by the fence-viewers, under St. 1863, c. 190, designating the line on which the fence should be built, the line adopted by the plaintiff is not conclusively binding upon the defendant. Kennedy v. Owen, 131 Mass. 431 (1881). 2. The remedy provided by Gen. Sts. c. 25, § 4, for enforcing payment of an award of fence-viewers, is applicable only to a case ■where the duty of maintaining the fence is required by the statute, and does not apply to a case where such duty arises from the ac- ceptance of a deed containing a condition to maintain it. Kennedy v. Owen, 134 Mass. 227 (1883). 3. The duty of maintaining a fence at a place where one is required to be built by St. 1879, c. 205, § 1, is not imposed by law upon the owner of land adjoining a railroad con- structed prior to St. 1841, c. 125. Boston If Albany Railroad v. Briggs, 132 Mass. 24 (1882). 5. A stipulation in a deed poll, that the grantee, his heirs and assigns, shall make and maintain a fence between the granted premises and adjoining land of the grantor, is not a covenant, and will not sustain an action by a subsequent grantee of the adjoining land against a purchaser from the grantee in the deed poll. Kennedy v. Owen, 136 Mass. 199 6. Mere non-user of a mill privilege for more than twenty years, if unaccompanied by any decided or unequivocal acts of the owner inconsistent with the continued existence of the easement, will not extinguish it. Eddy V. Chace, 140 Mass. 471 (1886). For a case involving a conti'oversy between a railroad and an adjoining landowner con- cerning the liability of the latter to maintain a fence, see Covenant. FIELD-DRIVER. See Impounding. FIRES, FIRE DEPARTMENTS, AND FIRE DISTRICTS. See By-Laws, pL 7; Tax; Town. FISH AND FISHERIES. See Cranberry Lands; Law and Fact. 1. It is undoubtedly within the power of the Legislature to authorize such a use of a stream which is not navigable as will wholly destroy a public fishery. Howes v. Grush, 131 Mass. 207 (1881). 2. A complaint, under St. 1869, c. 384, § 19, for fishing in a pond, in which fishes are law- fully artificially cultivated, without the con- sent of the proprietors, cannot be maintained, if the fishes are cultivated by lessees under leases signed by some only of the proprie- tors. Commonwealth v. Perley, 130 Mass. 469 (1881). 3. A lessee of an ice-house a-nd land upon the shore of a great pond, who clears the snow from a portion of the ice in the pond, and then leaves the ice for a day and two nights for the purpose of increasing the thickness of the ice, cannot maintain an action against a person having the right to fish in the pond, who, in the exercise of this right, cuts holes in the ice thus cleared, although the lessee was diligently using the usual and reasonable method of harvesting ice, and the person cut- ting the holes knew the purpose with which the ice was cleared and the usual manner of gathering ice. Rowell v. Doyle, 131 Mass. 474 (1881). 4. St. 1879, o. 45, authorized the town of Eastham to make the necessary inaprovements for the preservation and taking of alewives in a great pond and the waters connected there- with; enacted that the town should pay " all damages that shall be sustained in any way by any persons in their property, in carrj'ing into effect this act; " and provided that any fishery so created should be the property of the town . Held, that a person whose land on both sides of a non-navigable stream, connecting with the pond, was taken under this act, could recover compensation only for the land taken, and not for the value of the fishery to him as a riparian owner. Cole v. Eastham, 133 Mass. 65 (1882). 5. A person may be indicted, under the Pub. Sts. c. 91, § 101, for digging oysters from fiats described in a license granted under § 97, without the consent of the licensee, if, in digging quahaugs, he disturbs and destroys oysters, although he does not take them from the water, and has no intent to do so. Com- monwealth V. Manimon, 136 Mass. 456 (1884). 6. No private right in an individual to dig quahaugs exists in this Commonwealth. Com- monwealth v. Manimon, 136 Mass. 456 (1884). 7. At the trial of an indictment, under the St. of 1882, c. 65, § 1, for unlawfully drawing a seine in certain waters with the intent to catch bluefish, the only witness for the gov- ernment testified that he was in a boat on said waters, and saw the defendant in a seining- boat drawing a seine and taking bluefish from it; that it was what was called a mesh net, having a square mesh two or three inches large; that the fish were caught by the gills in the seine, and were drawn in dead; that 471 FIXTURES. 472 the seine was forty or fifty fathoms long. Held, that there was sufficient evidence to justify a verdict of guilty; aild that the ques- tion whether a mesh net was a seine was properly left to the jury. Commonwealth v. Pease, 137 Mass. 576 (1884). . 8. A complaint on the Pub. Sts. c. 91, § 27, for unlawfully fishing in a certain pond, need not aver that the pond is a great pond or an artificial pond, nor that the defendant was not lawfully engaged in cultivating or maintain- ing said fish. Commonwealth v. Richardson, 142 Mass. 71 (1886). 9. At the trial of a complaint on the Pub. Sts. c. 91, § 27, for illegally fishing in a great pond, the defendant is not entitled to a ruling that fishing for any other fish than those which were the only useful fish alleged to be culti- vated in the pond would be no offence. Comr monweallh v. Richardson, 142 Mass. 71 (1886). 10. A person who paddles a boat, in which another is fishing in violation of the Pub. Sts. c. 91, § 27, may be convicted of illegally fish- ing, within that statute, as a participant in the offence. Commonwealth v. Richardson, 142 Mass. 71 (1886). _ 11. Under the St. of 1884, c. 212, § 1, pro- viding that " whoever sells or offers for sale, or has in his possession," a lobster less than a certain length, "shall forfeit five dollars for every such lobster, and in all prosecutions under this section the possession of any lob- ster not of the required length shall be prima facie evidence to convict," a complaint will lie for the having in possession a lobster less than the required length. Commonwealth v. Barber, 143 Mass. 560 (1887). 12. A person may, from a boat, enter upon and walk along the unenclosed fiats of an- other, between high and low water mark, and within one hundred rods of the upland, for the purpose of fishing in the sea, and may so fish while on such flats. Packard v. Ryder, 144 Mass. 440.(1887). FIXTURES. As to what is personal property by agree- ment or otherwise, and for questions arising from the erection or removal of buildings, see Personal Property. As to what are questions of fact, or of mixed law and fact, in controversies concerning fix- tures, see Law and Fact. 1. A mortgage of land does not cover ma- chines resting upon the floor of a building on the land, by means of iron legs, fastened to the floor by screws only for the purpose of steadying them when in use, and which, al- though of great weight, connected with shaft- ing, and adapted for use and necessary in the business carried on in the building, can be moved without injury to the building and used elsewhere. Hubbell v. Bast Cambridge Savings Bank, 132 Mass. 447 (1882). 2. A mortgagor of a factory, used for the manuf Picture of plate glass, placed therein an iron table, weighing thirty-three tons, resting on brick foundations, and adapted only for use in such a factory. Held, that, as between him and the mortgagee, it became part of the realty, although it could be removed without injury to the foundations on which it rested, or to itself. Smith Paper Co. v. Servin, 130 Mass. 511 (1881). 3. The owner of a machine, intending to hire a certain shop in the future, authorized the owner of the shop to remove the machine thereto and set it up ready for use, under an agreement by which it was to be stored free from charge until the owner of the machine used it, when rent for a portion of the shop was to be paid. The machine, which weighed about a ton, was placed in the shop under this agreement, and was fastened to the flooring by screws, and braced to the beams of the floor above. It could be removed, but with some injury to the floor. It was adapted and de- signed for use in a machine-shop. While the machine was thus in the shop, and before it was used by its owner^ the owner of the land mort- gaged the land and building to a person who saw the machine in the shop, and was ignorant of the agreement between the owner of it and the owner of the shop. Held, that the machine passed by the mortgage as part of the realty. Southbridge Savings Bank v. Stevens Tool Co., 130 Mass. 547 (1881). 4. A mortgagor of land remained in occu- pation thereof after the mortgage had been foreclosed, to his knowledge ; and, without the consent of the owner, erected a house and barii thereon, which rested on posts sunk into the ground, earth being banked up above the sills of the house, and the space between the baru and the ground being boarded up, the upper boards being nailed to the barn and the posts. The barn projected over other land of the mort- gagor, and the entrance to it was from his land. Both house and barn could be removed with- out doing any great injury to the land. Held, that both house and barn became part of the realty; and that the owner of the land could maintain a bill in equity to restrain the mort- gagor from removing them. Guernsey V. Wil- son, 134 Mass. 482 (1883). 5. A tenant at will of a lessee of land erected a small building on the land resting on stone posts sunk into the ground. The building was erected with the knowledge and consent of the lessor of the land, and with an understanding on his part, and on that of the tenant at will, that it could be removed as a trade fixture. Both tenancies expired at the same time, and neither tenant removed the building; the lessor resumed possession of the land, and soon afterwards the former ten- ant at will hired it with other land at an in- creased rent. Held, that the tenant at will could not, after this, remove the building, or maintain replevin for it, on the refusal of the owner of the land to allow its removal. Mc- Iver V. Estabrook, 134 Mass. 550 (1883). 6. At the time the lease of a shop was ex- ecuted, there were in the shop two large cases, each ten feet high and between thirty and forty feet long, baring shelves and drawers, and 473 FORCIBLE ENTRY AND DETAINER. 474 mirrors inserted, with a cornice on top and a moulding at the bottom, which had been put into the room by a former tenant of the shop. These cases occupied spaces for which they had been made, rested on the floor of the room, and were fastened to the wall by nails driven through the backs of the cases into the plaster- ing. The base-board round the room did not extend behind the cases, and the wall behind them was not painted. After they were put in, the woodwork of the room, the cases, and the walls of the room, except behind the cases, were painted, to correspond with each other. Held, in an action by the lessee against the lessor for a breach of the covenant of quiet en- joyment, — the cases having been removed by one to whom the former tenant had sold them, — that the cases were not fixtures, but furni- ture, and that the action could not, therefore, be maintained. Kimball v. Grand Lodge of Masons, 131 Mass. 59 (1881). 7. Machines separately constructed, adapted for use in any building in which they can be put, secured in position by bolts, screws, nails, or cleats, and capable of being removed with- out Injury to themselves or to the building in which they are placed, do not necessarily, as matter of law, pass under a mortgage of the building and the land on which it stands. Maguire v. Park, 140 Mass. 21 (1885). 8. A boiler and engine, cast together and weighing fifty-six hundred pounds, not at- tached to real estate except by being belted to shafting, do not necessai-ily, as matter of law, pass under a mortgage of the real estate, al- though they cannot be removed except by re- moving a shed built over them to protect them from the weather, or by enlarging an entrance to another building on the land. Carpenter V. Walker, 140 Mass. 416 (1886). 9. Machines separately constructed, adapt- ed to the work carried on in the building in which they are, but which can be used in the same business elsewhere, and which are se- cured in position by nails, Screws, cleats, and braces, and belted to shafting, do not neces- sarily, as matter of law, pass under a mort- gage of the building and the land on which it stands. Carpenter v. Walker, 140 Mass. 416 (1886). 10. A portable furnace was put into a house, under an agreement that it should re- main the property of the seller until paid for. It rested by its own weight upon a circle of bricks set on the cellar floor, and was con- nected by pipes with stationary pipes placed in the house when it was built. The house also had holes in its chimneys from the different rooms, so that stoves could be used to heat the house. After the furnace was put in, and before it was paid for, the land on which the house stood was conveyed to a person- who did not know about the agreement in regard to the furnace, and who did not know whether there was a furnace in the house or not. In an action of tort, by the seller of the furnace against _ the purchaser of the house, for the conversion of the furnace, the judge excluded evidence of the secret intention of the plain- tifi and of the former owner of the house, in regard to whether the furnace was to become part of the realty ; and found, as a fact, that the furnace was annexed to and became part of the realty, and passed to the defendant by his deed. The judge also found, as a fact, that the defendant was a bona fide purchaser for value, and ruled that he was not put upon inquiry as to the agreement made when the furnace was put into the house. Held, that the plaintiff had no ground of exception. Ridgeway Stove Co. v. Way, 141 Mass. 557 (1886). 11. An iron boiler placed in a building by a tenant at will, upon a foundation of brick- work and cement, the edges of the brickwork being cemented before the boiler was placed thereon, to keep it in place, and an iron tank similarly placed, do not become a part of the realty. Cooper v. Johnson, 143 Mass. 108 (1886). FLATS. See Adverse Possession; Fish; Grant. 1. If , upon a petition under St. 1871,0.338, for a division of flats, commissioners are appointed, who notify and hear all parties in- terested, make theif surveys and plan, and report to the court, and the report and plan are approved and ordered to be recorded, and no exception is taken to the repoi-t, the ob- jection is not open, upon the apportionment of costs of the proceedings, that the commis- sioners have failed to fix the boundaries of the flats wholly below mean high-water mark and not adjacent to upland held by the same owner. King, petitioner, 129 Mass. 413 (1880). 2. After the Province Charter took effect, the Massachusetts colonial ordinance of 1647 became law in the territory formerly part of Plymouth Colony; and by the effect of the or- dinance the flats in front of land previously granted by the Colony enured to the benefit of the grantees, or those claiming under them, if the Colony had not conveyed the flats to others before the Province Charter. Litch- field y. Scituaie, 136 Mass. 39 (1883). As to the rule of apportionment of costs in proceedings for a division of flats, see Costs, II. pi. 5. FLOWAGE. See Cranberry Lands; Easement: Mills. FORCIBLE ENTRY AND DETAINER. See also Landlord and Tenant. 1. A. leased a parcel of land with a build- ing thereon, of which he was the owner, to B. During the term of the lease, the building 475 FORCIBLE ENTRY AND DETAINER. 476 was destroyed by fire, and the actual use and occupation of the estate were wholly aban- doned by B. A. then conveyed the estate to C, who erected a new building thereon and leased it to several tenants. B. contended that he had a right of possession under his lease, and, before the erection of the new building, assigned the lease to D., who sev- eral years afterwards, but during the term of the lease, with the assistance of a large num- ber of men, at an unseasonable hour in the morning, forcibly entered the building and took possession thereof, but was ejected there- from by the tenants upon their arrival. He then brought an action of forcible entry and detainer, under Gen. Sts. c. 137, against C. Held, that the action could not be maintained. Hodgkins v. Price, 132 Mass. 196 (1882). 2. A., claiming title to premises under a deed from B., who was in possession and de- nied A.'s right and refused to give him pos- session, succeeded, in attempting to gain possession, in crossing the threshold of the house without actual resistance, but was then resisted and made no further progress, and B. continued his possession uninterrupted. Held, that A. never had such possession as entitled him to maintain an action on Gen. Sts. c. 137, for forcible entry and detainer. Williams v. McGaffigan, 132 Mass. 122 (1882). 3. If land is sold under a power contained in a mortgage, the grantee of the purchaser cannot maintain an action against the mort- gagor, to recover possession of the land, under St. 1879, c. 237, which makes the process of forcible entry and detainer applicable "when a mortgage of real estate is foreclosed by a Bale under a power contained therein, or other- wise, and the person having a valid title to such estate is kept out of possession by any person without right." Warrenw. James, 130 Mass. 540 (1881). Although the purchaser himself may. Lovie v. Moore, 134 Mass. 259 (1883). 4. In a landlord and tenant process, evi- dence offered by the defendant that the lessor of the plaintiff never had any title to the premises has no tendency to show that the defendant never occupied them as the tenant of the lessor; and, if he did so occupy, he is estopped, in this action, to deny his landlord's' original title. Gage v. Campbell, 131 Mass. 566 (1881). 5. In an action on Gen. Sts. c. 137, and St. 1879, c. 237, to recover possession of land, alleged to be held by the defendant " unlaw- fully and against the right of the plaintiff," evidence that the deed to the plaintiff was executed under duress is admissible under an answer containing a general denial only. The Erovisions of the practice act are not applica- le to such a case. Harris v. Carmody, 131 Mass. 51 (1881). 6. A mortgagee of land entered for the pur- pose of foreclosing his mortgage, and remained in possession, receiving the rents and profits. Subsequently, he put A. in possession, under an agreement by which he was to sell the mortgage to A. on payment by A. of an agreed sum, within a time fixed. Before the time expired, A. bought the equity of redemption in the land from the mortgagor, and conveyed the land to B. When A.'s right to purchase the mortgage had expired, without payment by him, the mortgagee, in the absence of B., entered a house upon the land by forcibly raising a. window, and took possession, without giving A. or B. notice to quit, and executed a lease of the premises to C. While C. was in possession under his lease, B., having notice of the lease, entered by breaking a window, against C.'s remonstrance, and C. left the house. Held, that C. could maintain an ac- tion against B. on the Pub. Sts. c. 175. Law- ion V. Savage, 136 Mass. Ill (1883). 7. The owner of an equity of redemption of land, not in possession, and not entitled to possession, as against an equitable assignee of the mortgage, cannot maintain an action, on the Gen. Sts. c. 137, to recover such possession, against one who originally entered as his ten- ant under a lease for a year, but who, before the expiration of the year, took a lease from the equitable assignee of the mortgage, and who, at the time of the bringing of the action, which was after the expiration of the year, was in possession under the latter lease. Chamherlain v. Peirp, 138 Mass. 546 (1885). 8. If an action is i)rought, under the Pub. Sts. c. 175, against a tenant at sufferance, after a notice to quit has been given, and before the tenant has had a reasonable time to remove, this does not render the notice in- competent in evidence, but is a matter to be shown in defence. Hooton v. Holt, 139 Mass. 54 (188.5). 9. It is no cause for the abatement of an action on the Pub. Sts. c. 175, by the lessee of a tenement against a tenant at sufferance, that, pending the action, the estate of the plaintiff has ceased in consequence of the foreclosure of a mortgage, and the purchaser has brought an action against the tenant, which is pending. Hooton v. Holt, 139 Mass. 54 (1885). 10. A., who held a first mortgage on certain premises, given by B., of which there had been a breach of the condition, paid a second mortgage on the premises, and also certain debts owed by B. "for which his equity of re- demption had been attached. B. then con- veyed the premises, by a warranty deed absolute in form, to A., who gave to B. a bond conditioned to reconvey the premises to him upon the payment of a certain sum within one year. B. did not pay the sum named within the year, and, by an oral agreement between the parties after the expiration of the year, B. continued to occupy the premises, and paid a stated sum monthly to A. as rent, for five years, when A. gave him a notice to quit, in due form and duly served, for non-pay- ment of rent. Held, that A. could maintain an action on the Pub. Sts. c. 175, against B., to recover possession of the premises. Murray V. Riley, 140 lilass. 490 (1886). 11. At the trial of an action on the Pub. Sts. c. 175, in the Superior Court, on appeal, to recover possession of certain premises leased to the plaintiff, he called witnesses, 477 FORGERY, 478 who testified that the defendant was present, and was represented by counsel at the trial of this action in the district court ; that one R. , a constable, who had since died, was also present, and stated to the presiding judge, in the course of the trial, that he served upon the defendant notice of the making of the lease and of the plaintiff's claim under it; that there was no denial of the notice on the part of the defendant during that trial; but the witnesses could not remember whether R. had been sworn or testified as a witness at the time of making such statement. Held, that the defendant had no ground of exception to the admission of the evidence. Pray v. Steb- bins, 141 Mass. 219 (1886). 12. A notice from A. to B., a tenant at sufferance, to quit, dated July 3, 1885, and served between six and seven o'clock on the evening of that day, after reciting that A. had "this day leased the tenement," notified B. to vacate the tenement " by Monday, 6th day of July current, by tweh-e o'clock noon." In an action on the Pub. Sts. c. 175, by A. against B., to recover possession of the tene- ment, it appeared that it was occupied by B., a married man, and was in the second story. The judge, who tried the case without a jury, found as a fact that the notice was sufiicient in point of time. Held, that no error in law appeared. Wardell v. Etter, 143 Mass. 19 (1886). 13. In an action on the Pub. Sts. o. 175, to recover possession of a certain tenement, if the plaintiff, who has received a written lease of the premises, notifies the defendant, who holds under an oral agreement, to vacate the tenement on a certain day ' ' by twelve o'clock noon," and the writ is dated, and the officer's return shows that it was served, on that day, the officer may testify, for the purpose of showing that the action was not prematurely brought, that he served it in the evening. WardeU v. Etter, 143 Mass. 19 (1886). As to the appeal bond and scire facias there- upon, see Appeal, III. ; Scire Facias. FORECLOSURE. See Mortgage. FOREIGN ATTACHMENT. See Trustee Process. FOREIGN LAW. See Agent ; Bills and Notes ; Conflict OF Laws; Evidence; Interest; Mar- riage. 1. If , at the trial of an action of replevin of personal property, to which the plaintiff claims title under a mortgage executed in another State, where the parties to the mort- gage reside and the property is situated, the statutes and judicial opinions of the courts of which are putin evidence, the presiding judge rules that, as matter of law, upon that evi- dence, the mortgage is invalid as against an attaching creditor, upon exceptions to this ruling the question to be decided by this court is, if the evidence is conflicting, whether the evidence was such as to warrant the judge in finding as a fact, that, by the law of the other State, the mortgage was invalid as against an attaching creditor. Hackelt v. Potter, 135 Mass. 349 (1883). 2. A dictum of the highest court of another State is admissible in evidence as to what the law of that State is. Hacketl v. Potter, 135 Mass. 349 (1883). 8. Where the evidence of a foreign law con- sists entirely of a statute, the question of its construction and effect is for the court. Shoe If Leather Bank v. Wood, 142 Mass. 563 (1886). FORFEITURE. See Condition; Equity; Spirituous Li- quors. FORGERY. 1. An indictment under Gen. Sts. c. 162, § 1, charging the defendant with the forgery of an accountable receipt for money, is sus- tained by proof that he inserted additional words and figures in a genuine receipt for money, by which the amount originally named therein was increased. Commonwealth v. Bout- well, 129 Mass. 124 (1880). 2. An instrument by which a mortgagee acknowledges payment and satisfaction of the mortgage, cancels and discharges the same, and releases and quitclaims to the mortgagor the premises conveyed thereby, is a deed, within the meaning of the Gen. Sts. c. 162, §§ 1, 2, making the forging and uttering of a deed a punishable offence. Meserve v. Com- monwealth, 137 Mass. 109 (1884). 3. A certificate of a justice of the peace of an acknowledgment by a mortgagee of an in- strument reciting payment and satisfaction of the mortgage, cancelling and discharging the same, and releasing and quitclaiming to the mortgagor the premises conveyed thereby, is a certificate " in relation to a matter wheVein such certificate may be received as legal proof," within the meaning of the Gen. Sts. c. 162, §§ 1, 2, making the forging and ut- tering of such a certificate a punishable of- fence. Meserve v. Commonwealth, 137 Mass. 109 (1884). 4. A written instrument, headed with the name of a certain bank, containing a certain sum in figures, and requesting the payment of that sum to the order of a person named, pur- porting to be signed by a certain person as 479 FRAUD, I. 480 cashier, and addressed to another bank, is properly described in an indictment for for- gery, in which it is set out according to its tenor, as an " order for money." Common- wealth V. Parsons, 138 Mass. 189 (1884). 5. Upon the issue ■whether a promissory note, in an action thereon, has been forged, evidence is inadmissible to show that the plaintiff has committed similar forgeries, or that he has the capacity, skill, and appliances which would enable him to forge the note. Costelo V. Crowell, 139 Mass. 588 (1885). FORMER ACQUITTAL. See Autrefois Convict ; Jukt. FORMER JUDGMENT. See Judgment. FRANCHISE. See Canal; Constitutional Law ; Cor- poration; Easement; Tax. FRAUD AND FRAUDULENT CON- VEYANCES. I. Fraud; what constitutes; Effect of; Evidence. II. Fraudulent Representations. m. Fraudulent Transfers of Personal Property. IV. Fraudulent Conveyances of Real Estate. As to jurisdiction in equity in cases of fraud, accident, and mistake, see Equity, VI. As to indictable frauds, see Conspiracy; False Pretences; Forgery. I. Fraud; what constitutes; Effect of; Evidence. See also Assumpsit, VIIT. pi. 4; Col- lateral Security, pi. 3 ; Confusion ; Evi- dence, VI. ; Will. 1. An assignment of a chose in action, made in fraud of creditors, is void as against them, both under the law of New York and of Massachusetts. Drake v. Rice, 130 Mass. 410 (1881). 2. A party to an oral asfreement, who was unable to read or write, affixed his mark to a paper, without its contents being read or explained to him, supposing that it contained the terms of the oral agreement, although no representation as to its contents was made. Held, that evidence was admissible to show that the terms of the written contract differed from those orally agreed upon; and that a finding that the writing was fraudulently ob- tained would be justified. Trambly v. Ricdrd, 130 Mass. 259 (1881). 3. A., to whom B. was indebted, advised C. to lend money to B. on the security of a mort- gage of personal property, and acted as C.'s agent in completing the transaction. With the money thus obtained, B. paid A. the debt which he owed him. Both A. and B. acted in fraud of the Gen. Sts. c. 118, §§ 89, 91; but C. had no knowledge of the fraud. Held, that the knowledge of A. was not in law im- putable to C. DUlaway v. Butler, 135 Mass. 479 (1883). 4. An arbitrator, appointed under a rule of court, is not liable to an action by one party to the action referred to arbitration, for fraudulently inducing, in pursuance of a con- spiracy with the attorney of the other party to the action so referred, the other arbitrators to unite with him in an unjust award in favor of the latter party. Hoosac Tunnel Dock Co. V. O'Brien, 137 Mass. 424 (1884). 5. A contract by which one subscribes for a copy of a book, to be published in parts, at a certain price for each part, payment to be made for each part after delivery, is so far an entire contract, that the subscriber, after re- ceiving one part and paying for it, cannot, without offering to return such part, set up, in defence to an action for damages for breach of the contract in refusing to take and pay for the other parts, that he was induced to enter into the contract by fraud. Barrie v. Earle, 143 Mass. 1 (1886). 6. In an action upon two promissory notes signed by the defendant's husband, who died before the trial, and by the defendant, it ap- peared that there had been a previous note, given by the defendant's husband for a debt to the plaintiff, in an amount equal to the aggregate of the two notes in suit ; that this note had been indorsed by the plaintiff, and had been discounted at a bank of which one W. was cashier; that, just before it became due, the defendant's husband sent for W., who agreed to renew the note, if the plaintiff would indorse it ; and that, according to the defendant's testimony, the plaintiff came to see her husband, and agreed to take care of the note, saying that he would have it put into two notes, and adding: "Don't worry about these at all. I will take care of them. All we want of you is to get well." The de- fendant further testified, that nothing was said to her about signing any note; that she had no property at the time, but had a policy of insurance, which would be available only at her husband's death. The defendant's daughter testified that she went to the bank to get a power of attorney to her for her father to sign ; that she obtained this from the at- torney of the bank; that W. gave her the two notes in suit, pointing out how they were to be signed, and saying, " Take them 481 FRAUD, 11. 482 home to your father, and tell yonr father to sign there and your mother there ; " and that she knew that the two notes were to take up the former note, because she was told so by her mother. The defendant and her daughter testified, against the plaintiff's exception, to the conversation which took place at the time of signing the notes, in substance, to the effect that the daughter repeated what W. had said ; that the defendant's husband said, " I do not see why your mother's name should be on there;" that he sank back, and said, "I guess it is all right;" and that the power of attorney was signed by the husband, after which the daughter signed hft name as it ap- peared on the notes, which the defendant then signed. The defendant further testified, that she had never been spoken to about signing the notes; that she did not think of binding herself on the notes; that she signed them at once after her daughter signed them; that her daughter went right back with the notes ; and that her husband was very sick, and she thought the plaintiff was very kind not to ■worry her husband about the note. Held, that there was no evidence that the defendant was induced to sign the notes by fraud on the part of the plaintiff. Held, also, that evidence of the conversation which took place at the time of signing the notes was admissible, so far as it formed a part of the act done by the defendant. Jackson v. Olney, 140 Mass. 195 (1885). II. Fraudulent Representations. See also Bills and Notes, X. pi. 4; Evi- dence, VI. ; Laches. 1. A buyer of an interest in a stock of goods and in a business, who has ample op- portunity afforded him to examine the goods and the books of the business, has no right to rely upon representations of the seller con- cerning the value of the goods or of the amount of business which the seller has pre- viously done. Poland v. Brownell, 131 Mass. 138 (1881). 2. A declaration alleged that the defendant was the cashier of a bank at which E. did business ; that at a certain date, and for a long time before, E. was indebted to various persons in large sums of money, and was in- solvent; that the bank had for a long time and continuously discounted commercial pa- per for E. ; that E. had not, for a long time prior to said date, "been able to meet his current obligations when due by payment, and had procured extensions by new discounts of his paper from time to time;" that E. during the same time was buying goods and selling them for less than their value, making drafts for their price, and procuring them to be discounted by the bank, through the hands of the defendant; that the defendant knew 'J the above-recited unusual, risky, and decep- tive manner in which E. was transacting his business, that he was of doubtful standing and responsibility, and was likely to fail and SUPPLEMENT. — 16 was insolvent; " that, a short time before said date, E., who had never traded with the plaintiff before, applied to him for a sale of goods, and refeiTed him, as to his standing and credit, to said bank; that at said date the plaintiff wrote to the defendant, as cashier of said bank, " as to the responsibility and finan- cial standing of E.; " that the defendant re- plied by letter as follows: " Not familiar with detail of his business; he has paid all paper with his name upon maturity without protest promptly since ray acquaintance with him," for a period of fifteen years; that the defend- ant, in making such representation, " did not deal fairly with the plaintiff and give him honestly such information as he had relative to the subject matter of the inquiry, but in- tended to and did deceive the plaintiff; " and that the plaintiff, relying on and deceived by the representations made by the defend- ant, sold and delivered goods to E., who at that time was insolvent and who failed in business, stopped payment, took the benefit of the insolvent law, and refused and ne- glected to pay the plaintiff for said goods. Held, on demurrer, that the declaration did not state a legal cause of action. Potts v. Chapin, 138 Mass. 276 (1882). 3. In an action upon an agreement to ac- cept and pay for a copy of a book when published, the defence to which is false representations, evidence is admissible, for the purpose of showing what the book was to be, that the plaintiff's agent, in order to induce the defendant to sign the agree- ment, made the representations relied upon, that those representations were false and known by the plaintiff to be so, and that the defendant was thereby induced to subscribe for the book. Jewett v. Carter, 132 Mass. 335 (1882). 4. If a person is induced, by the false and fraudulent representations of the agent of an insura,nce company, to take a policy of insur- ance in the company, and to pay the pre- mium thereon, he may rescind the contract, and, in an action against such agent, recover as damages the amount of the premium so paid. Hedden v. Griffin, 136 Mass. 229 (1884). 5. In an action for deceit, the declaration alleged that the defendant " falsely and fraud- ulently represented to the plaintiff that she knew of her own knowledge that D. had left assets exceeding all his liabilities by more than " a certain sum. The presiding judge found that the defendant represented that the a|Ssets were the sum named in excess of the liabilities; that, in fact, the estate was insol- vent; and that the defendant believed that the representation made was true, and did not ascertain the contrary until long after it was made. The plaintiff asked the judge to rule that, " if the court finds that the defendant represented to the plaintiff that the assets left by D. were" the sum named " in excess of all his debts and liabilities, but that, in fact, D. died insolvent," the defendant would be liable, if the plaintiff acted on such represen- tations. Held, that the ruling asked for was 483 FRAUD, III. 484 properly refused. Cowley v. Dobbins, 136 Mass. 401 (1884). 6. In an action for deceit, the declaration alleged that the defendant was a director of a certain national bank; that he falsely and fraudulently represented as of his own knowl- edge that the bank was sound ; that the plain- tiff was thereby induced to buy stock and make deposits in the bank; that the bank was not sound ; and that the defendant, when he made the representations, knew them to be untrue. The defendant was allowed to put in evidence of his relations to the bank, and tending directly to show that he did not know that the bank was unsound. Held, that the plaintiff had no ground of exception. Cole V. Cassidy, 138 Mass. 437 (1885). 7. In an action against a director of a na- tional bank for deceit, in falsely representing as of his own knowledge that the bank was sound, and thereby inducing the plaintiff to buy stock and make deposits therein, when in fact the bank was not sound, and the defend- ant knew of its unsoundness when he made the representations, the plaintiff asked the judge to instruct the jury, " that, if they found the defendant's representation as to the soundness of the bank was made as a state- ment of existing fact, and as of his own knowl- edge, and if such representation was in fact untrue, it was not necessary for the plaintiff to prove that the defendant made the repre- sentation with intent to deceive, but that it was sufficient for him to show that the de- fendant made the representation with the intent to induce the plaintiff to rely and act upon it, and that the plaintiff did so act and rely." The judge instructed the juiy, in substance, that the plaintiff could recover, if he proved, that the defendant represented as an existing fact that the bank was sound, that the plaintiff was thereby induced to act, that in fact the bank was not sound, and that the defendant then knew that it was not sound, or that, the fact of the soundness of the bank being a fact within his means of knowledge, he stated that the bank was sound, having no knowledge of that fact; and that, if these facts were established, the defendant would be liable, although he believed and had rea- sonable cause to believe his representations to be true. Held, that the plaintiff had no ground of exception. Cole v. Cassidy, 138 Mass. 437 (1885). 8. In an action for deceit in the sale of a quantity of flour, the declaration in which alleged in substance that the defendant falsely and fraudulently represented the flour to be sound and sweet, knowing it to be unsound and sour, and thereby induced the plaintiff to buy it, evidence that the flour was received by the defendant as a part of a large lot of flour, the rest of which was sound, and which flour, so far as he knew, was all alike, and was kept in the same manner until the sale to the plaintiff, is admissible; and evidence , that the plaintiff examined the flour before buying it, and said it was all right, is also admissible. Bowker v. Belong, 141 Mass. 315 (1S86). III. Fraudulent Transfers of Personal Property. See also Evidence, VI. 1. In an action of replevin, if the plaintiff claims title to the property replevied under a bill of sale given to him by a third person, which is contended by the defendant to be fraudulent as against the creditors of such person, the defendant is not entitled to intro- duce evidence that a mortgage, given by the third person to the plaintiff more than a year after the date of the bill of sale, is also fraudu- lent as to creditors, no connection being shown between the two transactions. Edmunds v. Hill, 133 Mass. 445 (1882). 2. In an action for the conversion of per- sonal property, attached upon a writ against the plaintiff'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 Mass. 207 (1884). 3. If an insolvent debtor mortgages to a per- son most of the property used in his business,, not to secure a pre-existing debt, but in con- sideration of a sum of money then advanced to him, being nearly the value of the property, and the mortgagee acts in good faith, not knowing of the mortgagor's insolvency, or that the mortgaged property coinprises about all of his property, and the mortgagor does not realize his condition, but makes the mort- gage to meet immediate wants, expecting to go on with business and to receive collections so as to pay off the mortgage debt within a month, in an action by the assignee of the insolvent debtor to recover the value of the mortgaged property, it cannot be ruled, as matter of law, that the transaction was a fraud ; but it is a question for the jury whether it was " in the usual and ordinary course of business of the debtor," within the Pub. Sts. c. 157, § 98. Buffum v. Jones, 144 Mass. 29 (1887). 4. A., who was insolvent, was sued by B., a creditor, and his property attached on the writ. A. thereupon paid B. $100 of the debt, and the attachment was released. Afterwards B. made another attachment of A.'s property on the writ, which was returned into court, but the service was insufficient. , A. endeav- ored to effect a compromise with his creditors, and employed as his attorney in the matter C, who acted as B.'s attorney in bringing the action against A. ; but the compromise failed. C. informed A. that the action had been en- tered in court, that he could not act for him therein, but would employ some one else to do so if A. desired, and A. requested him to do so. C. thereupon asked D., another attorney, to enter an appearance for A. in the action. D., acting without pay, and supposing that it was a matter of accommodation to C., entered an appearance and filed an answer for A. in the action ; and the case was placed on the trial list by C. D., having received no fur- ther instructions, did nothing more, A. was defaulted, and judgment was entered fctr If. 485 FRAUD, IV. 486 Execution issued on the judgment, and was levied upon property of A., which was sold, and the proceeds were applied to the exe- cution. On the same day, insolvency pro- ceedings were begun by A., and an assignee appointed. One of the purposes of C, in causing an appearance to be entered in the action, was to save the necessity of taking out an order of notice and making further service upon A. At the time the $100 was paid to B., he had no reason to believe that A. was insolvent, otherwise than by his inability to pay the debt due B. in the regular course of business; but B. and his attorney had full knowledge of the insolvency before the writ was entered in court. A. did not, at any time, personally intend to do or cause to be done anything which should give a fraudulent preference to B. Held, that there was a " preference " within the meaning of the Pub. Sts. c. 157, § 96, on the part of A., in respect to the property seised on execution, but not in respect of the pavment of the $100 to B. SartweU v. North,'U4: Mass. 188 (1887). IV. Fraudulent Conveyances of Real Estate. 1. On the issue whether a conveyance of real estate is fraudulent as to creditors, evi- dence of the register of deeds for the district in which the estate lies, that he has searched the records of the registry, and found that there was no other property standing in the name of the grantor, is admissible. Bristol County Savings Bank\. Keavy, 128 Mass. 298 (1880). 2. At the trial of a writ of entry to recover possession of a parcel of land, set ofE to a creditor of A. on execution, and alleged to have been previously fraudulently conveyed to the tenant by A., with the intent to hinder, delay, and defraud his creditors, the tenant asked the judge to rule that, if he bought the property from A. knowing that the effect of it would be to deprive the creditors of the power of reaching the property of A. by legal pro- cess, it was not fraud at common law. The judge declined so to rule, and ruled that, if such was the fact, it was not of itself fraud at common law, but had some tendency to prove fraud; and also ruled that the demandant must satisfy the jury either that there was no real sale to the tenant, or that, if there was a real sale, it was made by A. for the purpose of hindering, delaying, and defrauding his creditors, and that the tenant knew of and as- sisted in such fraudulent purpose. Held, that the tenant had no ground of exception. Bristol County Savings Bank v. Keavy, 128 Mass. 298 (1880). 3. A. recovered a judgment against B., and sought, by writ of entry, to subject, in satis- faction thereof, land, the legal title to which stood in the name of B.'s wife, and which A. had attached in his suit against B. The land had been attached by C. in a suit against B., before the date of A.'s attachment. C. had recovered judgment against B. and had brought a writ of entry to recover the land from B.'s wife. Pending this suit, B.'s wife had consented to judgment therein, and C, in consideration thereof, had conveyed the land to her. A. contended that this arrange- ment constituted fraudulent collusion, and that he therefore was entitled to judgment upon his writ of entry. He admitted that the judgment obtained by C. against B. was valid. Held, that although the consent to judgment by B.'s wife in the real action brought by C, and the conveyance by C, were collusive, A. could not contend that he was injured thereby, the judgment obtained by C. against B. being admitted to be valid, and that therefore, as against A., B.'s wife was entitled to judg- ment. Lamb v. Smith, 132 Mass. 574 (1882). 4. A. in fraud of his creditors conveyed land by a quitclaim deed to B., who partici- pated in the fraud, and who, by a deed in like form, conveyed the land to C. The land was then specifically attached by a creditor of A. , under Gen. Sts. c. 123, § 55. Held, on a writ of entry, by the purchaser at a sale on execu- tion made under this attachment, against C, that the fact that the latter took his title by a quitclaim deed was not conclusive evidence that he was not a purchaser in good faith and without notice of the fraud. Mansfield v. Dyer, 131 Mass. 200 (1881). See also Execution, III. ' 5. If a wife lends money to her husband out of her separate estate upon his promise to repay it, and he, in repayment of that loan, and not for the purpose of hindering, delay- ing, or defrauding creditors, conveys land to her through a third person, such conveyance is not voluntary, and is valid against his cred- itors. Atlantic Bank v. Tavener, 130 Mass. 407 (1881)._ 6. If a wife pays, with money earned by her own labor, since St. 1874, c. 184, a promissory note made by her husband and the princi- pal and interest of a mortgage on land owned by him, a conveyance of the land by him to her through a third person, made in connec- tion with such payments, is not in fraud of his creditors. Draper v. Buqqee, 133 Mass. 258 (1882). ' 7. If a father makes a deed of real estate to his son in good faith, and without any intent to defraud creditors, it is not conclusive evi- dence of fraud, sufficient to avoid the deed, that the son permits the father to occupy the premises in any way to his benefit. Chase v. Horton, 143 Mass. 118 (1886). 8. If the levy of an execution upon land is void, the debtor is stiU indebted to his cieditor, although this indebtedness must beestablished in a particular manner; and, if the debtor knows or is advised that the levy is void, he can actually intend to defeat, delay, or de- fraud his creditor, in making a conveyance of the land to a third person, although the judg- ment upon which the execution issued remains satisfied of record. Plimpton v. Goodell, 143 Mass. 365 (1887). 9. At the hearing of a bill in equity by A. to set aside a conveyance of land by B. to C. 487 FRAUDS, STATUTE OP, I., II. 488 as fraudulent against creditors, there was evi- dence tending to show that A. recovered judg- ment in an action against B., and levied the execution issuing on the judgment upon land of B. ; that the execution was returned satis- fied; that the levy was subsequently declared void; and that, while the question of the validity of the levy was in controversy, B. conveyed the land to C, who was her brother and lived with her, and the conveyance was made under the advice of B.'s counsel. C. testified that he knew or supposed that A.'s levy was void; that he knew or believed that, if the levy was set aside, A.'s judgment debt had uot been paid, and that C. took the deed for the purpose of preventing A. from pro- ceeding against the estate. It also appeared that, after C. had been advised by B.'s coun- sel to take a deed of the land, B. and C. went to the office of the counsel, and the deed was made, acknowledged, and subsequently re- corded ; that the deed purported to convey a fee simple absolute in the land to C, reserving an estate of homestead; that a bond was taken by B., reciting that " C. takes said farm and agrees to try the title of the same," and was on condition that the obligation should be void, if C. should reconvey the land to B. upon payment of all sums "due to him "for moneys loaned and services performed" in the present or the future ; that the existence of this bond was kept secret until it was pro- duced at the hearing; that this land was all the property which B. had ; and that B. was too ill to attend the hearing as a witness, and too ill to have her deposition taken, and her counsel did not ask for a postponement on this ground, and had not attempted to take her deposition before the hearing. Held, that there was evidence for the jury that the con- veyance was made by B. with intent to de- feat, delay, or defraud her creditors, and that C. participated in such fraudulent intent. Plimpton V. Goodell, 143 Mass. 365 (1887). FRAUDS, STATUTE OF. I. Promises by Executors, etc. II. Promises to answer for the Debt, ETC. of Another. III. Contracts for the Sale of Lands, etc. IV. The Memorandum. V. Representation of the Credit, ETC. OF Another. VI. Contracts for the Sale of Goods, ETC. VII. Contracts for the Sale of Stocks, ETC. Vin. Marriage Agreements. IX. New Promises by Insolvents, etc. See Guaranty. I. Promises bt Executors, etc. A. held three mortgages on a parcel of land, and there was a fourth mortgage on the same, owned one third by B. and two thirds by C. B. assigned his one third to C, who agreed that he would account to B. for one third of the profits arising out of the sale of the estate. C. then foreclosed the mortgage, and became owner of the equity of redemp- tion. Neither B. nor C. was liable for the payment of the notes secured by the three prior mortgages held by A. On a settlement of accounts between A. and B. arising out of other transactions, B. allowed A. to charge him with one third of the interest due on the three mortgage notes, thereby reducing A.'s debt to B. A. died, leaving a will in which his wife was appointed executrix and was the residuary legatee. She gave bond in common form, and not to pay debts and legacies. After A.'s death, B. charged in his books the bal- ance of A.'s debt to A.'s estate, and, in 1874, so informed A.'s wife, and also told her that he would allow, as a set-off against this debt, one third of the interest falling due on the three mortgage notes, so long as C. continued to pay his two thirds of the same. This ar- rangement was carried out, and the interest was so indorsed on the notes until 1877, leav- ing a considerable balance then due B. from A.'s estate. A.'s wife rendered her final ac- count as executrix in 1874, by which it ap- peared that the balance was paid to her si9 residuaiT legatee, and in this balance were in- cluded the three mortgage notes. Held, that she was not liable in equity to B. for her hus- band's debt. Clarke v. Palmer, 129 Mass. 378 (1880). II. Promises to answer for the Debt, etc. of Another. 1. In an action by A. against B. for goods sold and delivered, it appeared that the goods were delivered to C., and were charged to C. on A.'s books of account. A.'s evidence was to the efEect that B. said he would be respon- sible for and pay C.'s bills; that, after the goods were delivered, B. said it would be all right; that, after suit was brought, B. said he considered himself responsible to a certain time, but not afterwards. A witness for the plaintiff testified that the plaintiff said B. promised to pay the bill if 0. did not. The defendant testified that he only promised to pay if C. did not. Held, that there was evi- dence tending to show that B. was liable as an original promisor, and that therefore the finding to that effect was conclusive and should not be revised on exceptions. Barrett V. McHugh, 128 Mass. 165 (1880). 2. If any credit is given to the person to whom goods are delivered, the promise of an- other to pay for them is collateral, and within the statute of frauds. Bugbee v. Kendricken, 130 Mass. 437 (1881). 3. If the owner of a vessel, subject to a lien for a debt incurred by a former owner, agi'ees 489 FRAUDS, STATUTE OF, III., IV. 490 to pay the lien, on the holder of the lien for- bearing to enforce the same, this is not a promise to pay the debt of another, within the statute of frauds. Fears v. Story, 131 Mass. 47 (1881). 4. An oral guaranty of the payment of the note of a third person, given in payment of a debt of the guarantor, is within the statute of frauds, even if the principal object of the transaction is the payment of the guarantor's own debt. Dotes v. Swett, 134 Mass. 140 (1883). 5. At the trial of an action for breach of an agreement to save the plaintiff harmless from all loss by reason of any liens and incum- brances upon a horse, alleged to have been bought by the plaintiff of L., and on which the defendant held a mortgage, and for breach of a warranty that the horse was free from all incumbrances, the answer to which set up the statute of frauds, the plaintiff asked the judge to rule that " if the defendant said to the plaintiff, 'I will guarantee the horse to you in case you will buy him of L.,' that con- tract would not be within the statute of frauds ;" and that " if the plaintiff said to the defendant, ' I will buy the horse of L. if you will guarantee the title, but not otherwise,' and the defendant said, 'AH right, I wiU so guarantee the title if you will pay me $50 of the purchase money,' that contract would not be within the statute of frauds." The judge refused so to rule. Held, that the plaintiff had no ground of exception because of such refusal. Stratton v. Sill, 134 Mass. 27 (1883). in. Contracts for the Sale of Lands, etc. 1. An agreement by a grantee, in consider- ation of the conveyance of land, to support the grantor during his life, is not a contract for the sale of land or any interest therein, within the statute of frauds. Lyman v. Ly- man, 133 Mass. 414 (1882). 2. If A. and B. make an oral contract, by which A. is to buy land by auction upon the joint account of both in equal shares, the con- tract is within Gen. Sts. c. 100, § 19; c. 105, § 1 ; and, after the land has been conveyed to A. , B. cannot maintain an action for a breach of the contract. Parsons v. Phelan, 134 Mass. 109 (1883). 3. A written agreement, signed by the defendant, was as follows: "I agree to sell A. one half-acre of land, adjoining K.'s lot on the east, and running due east, for three hun- dred dollars." fleW, in an action by A. on the agreement, that the boundaries were not described with sufficient certainty to take the case out of the statute of frauds, and that oral evidence to show the boundaries agreed upon was inadmissible. Sherer v. Trowbridge, 135 Mass. 500 (1883). 4. A. and B. entered into an oral agreement, by which A. , who owned a parcel of land , was to buy an adjoining parcel at a certain price, value his own land at a sum named, and erect a warehouse on both parcels according to certain plans; and B. was to hire the same for a term of years, at a certain per- centage upon the cost of the building and land, at the valuation so agfreed upon. In the course of building, B. asked A. to make certain additions and alterations, and agreed to pay a cei'tain percentage, for the term of the lease, upon the cost. The building was erected with such additions and alterations as were requested; but B. refused to accept the lease. Held, that the agreement to take a lease was within the statute of frauds, and that A. could not maintain an action against B. for the cost of the land bought and of the building erected less their value at the time of B's refusal to take the lease; and that the agi'eement for the additions and altera- tions was not a separate agreement. Bacon V. Parker, 137 Mass. 309 (1884). 5. The owner of a building, in which there was a hall, agreed orally with A. to permit him to use the hall for dancing parties on the afternoons of four holidays named, a stipu- lated price for each afternoon. Held, that the contract was for a license, and not for the sale of an interest in land, within the statute of frauds; and that A. could maintain an action against the owner of the building for a breach of the contract. Johnson v. Wilkinson, 139 Mass. 3 (1885). 6. A bill in equity alleged that the defend- ant orally promised the plaintiff to convey to him certain real estate, if the plaintiff would assign to him a certain policy of insurance; that the defendant had in no part performed his promise; that the plaintiff had offered an assignment of the policy to the defendant, which he had not accepted; and that the defendant had conveyed the real estate to an- other person, and the plaintiff had incurred some expenses, relying upon the defendant's promise. Held, on demurrer, that the con- tract alleged was within the statute of frauds. Pub. Sts. c. 78, § 1, cl. 4 ; and that the bill could not be maintained. Clifford v. Eeald, 141 Mass. 322 (1886). 7. In an action for breach of an agreement to convey land to the plaintiff, the answer to which sets up the statute of frauds, a draft of a deed of the land is admissible, in connection with evidence that it was offered to the defend- ant for execution, to show a breach, but not to aid a memorandum of the sale previously executed, which is insufficient. Doherty v. HUl, 144 Mass. 465 (1887). IV. The Memorandum. 1. A., who had acted as a broker for B. and had also dealt with him on his own account, telegraphed B. as follows: " Telegraph how much corn you will sell, with lowest cash price." B. replied by telegraph: "Three thousand cases, one dollar five cents, open one week." A. replied by telegraph: " Sold corn, will see you to-morrow." In an action for the non-delivery of the corn, A. offered to show that, at an interview with B. on the next day, he verbally accepted the offer contained in 491 FRAUDS, STATUTE OF, V., VI. 492 the telegrams ; that B. promised to ship the com to him ; and that the last telegram re- ferred to a resale by himself of the same corn to C. Held, that there was no sufficient mem- orandum in writing within Gen. Sts. c. 105, § 5; that the evidence offered was properly excluded; and that the action could not be maintained. Lincoln v. Erie Preserving Co. , 132 Mass. 129 (1882). 2. A contract in writing signed by the defendant, a manufacturer of sheet-iron, was as follows: " I hereby agree to ship you bal- ance of twelve cars sheet-iron which we owe you on a previous arrangement, same to be agreed upon at prices and terms as below and specification not to exceed one car of heavy sizes heavier than twenty-one gauge and not more than one car of thirty gauge. Balance of specification to be No. 21 to No. 26 gauge, all specifications to be sent us at rate of one car-load per month." Then followed a list of prices for different sizes per one hundred pounds, and terms of payment. Held, in an action thereon, in which it appeared that the iron to which the contract related was of greater value than $50, that there was no sufficient memorandum in writing, within Gen. Sts. c. 105, § 5, even as to two car-loads; and that the action could not be maintained. Man V. Ward, 134 Mass. 127 (1883). 3. An account between A. and B. in the handwriting of A., containing the item, " B. Dr. To house lot," and stating the amount, but not otherwise signed by A., is not a sufficient memorandum in writing signed by him, within the statute of frauds, Pub. Sts. c. 78, § 1. Burns v. Daggett, 141 Mass. 368 (1886). 4. A. directed his agent to look for a store for him, and to negotiate for a lease of it. The agent wrote a letter to A., stating that he had been looking at B's store, containing a description of the premises, naming the an- nual rent asked for a term of five years, and inquiring whether the premises and amount of rent were satisfactory. A. telegraphed to the agent as follows: "If basement included at four thousand secure five years' lease." This telegram was handed by the agent to B., who verbally accepted the offer. Held, that there was not a sufficient memorandum in writing of a contract to accept a lease within the statute of frauds, to enable B. to maintain an action against A. Hastings v. Weber, 142 Mass. 282 (1886). 5. A. placed a parcel of land with a dwell- ing-house upon it in the hands of an agent for sale, who telegraphed to A. inquiring at what price he would sell, to which A. replied by telegraph, naming a price. Two days later, A. wrote to the agent as follows: "As I telegraphed you, I will sell the house for" the sum named in the telegram. After re- ceiving this letter, the agent accepted a sum of money from B., and executed and gave to him the following paper: " Rec'd of B." the sum named " to bind sale of estate on C. Street owned by A.," and signed it as " agent for A." A. owned another parcel of land on C. Street, which had no buildings upon it. A. afterwards sold the estate in question to a third person. B. then brought an action against A. for breach of an agreement to con- vey the land to him. Held, that, although the memorandum of the contract would have been sufficient, within the statute of frauds. Pub. Sts. c. 78, § 1, if A. had only owned one estate on C. Street, yet, as A. owned more than one estate on C. Street, the memorandum was in- sufficient; that the telegram and letter from A. were inadmissible in aid of the memo- randum ; and that the action could not be maintained. Doherty v. Hill, 144 Mass. 465 (1887).' 6. A. placed a parcel of land for sale in the hands of a broker, who made an oral, contract to sell it to B. ; and enter'ed a memorandum in his book, containing the date of the sale, the name of the purchaser, and the price for which, the property was sold, but not speci- fying the terms of sale. Before this memo- randum was entered, A. had made a contract for the sale of the land to a third person, and so notified the broker. B. then brought, an action against A. for a refusal to convey the land to him. Held, that there was no suf- ficient memorandum of the contract with B. within the statute of frauds. Pub. Sts. c. 78, § 1 ; and that the action could not be main- tained. Elliot V. Barrett, 144 Mass. 256 (1887j. V. Eepresentation of the Credit, ETC. OF Another. In an action against A. and B. for the conversion of certain goods, evidence is in- admissible, under the Pub. Sts. c. 78, § 4, of oral representations or assurances made by B., in regard to the credit and pecuniary re- sponsibility of A., that A. might obtain credit of the plaintiff, for the purpose of showing that the plaintiff was fraudulently induced to sell the goods in question to A. Bates v. Youngerman, 142 Mass. 120 (1886). VI. Contracts for the Sale of Goods, etc. 1. A contract for the sale of shares of stock in a corporation is a contract for the sale of "goods, wares, or merchandise," within the statute of frauds. Gen.. Sts. c. 105, § 5; and, in a suit for breach of an oral promise made by the defendant to take the shares from the plaintiff at a fixed price, it is immaterial that this promise constituted the inducement to the plaintiff to take the shares originally. Boardman v. Cutler, 128 Mass. 888 (1880). 2. One who has made an oral contract to purchase a vessel has an insurable interest in her, notwithstanding the statute of frauds. Amsinck v. Ame7'ican Ins. Co., 129 Mass. 185 (1880). 3. The defendant made an oral agreement with the plaintiff for the purchase of a spe^ cific lot of skins, at an agreed price per pound for merchantable skins and another price for damaged skins, and directed A. to see them 493 FRAUDS, STATUTE OF, VII., VIIL, IX. 494 put up, and not to take them away before a certaia day, because the defendant wished to' asaertairi in regard to his insurance. A. agreed to take them away on the day named, and as- sorted part of the skins, and then left, saying he would risk the plaintiff doing it all right. The plaintiff then assorted the rest of the skins, ascertained their weights in the usual manner, entered the weights in his books, and put all the skins apart in bundles, marked with the defendant's initials. A. did not take them away on the day named, and they were destroyed by five the following night. Held, that there was not an acceptance and receipt of the skins, within the statute of frauds. Rodgers v. Jones, 129 Mass. 420 (1880). VII. Contracts for the Sale op Stocks, etc. 1. An oral agreement to share equally in the profits and losses resulting from the pur- chase and sale of stock already owned by one of the parties to the agreement, he having bought it through a broker on a margin, is not a contract for the sale of goods, within ihe statute of frauds, nor within the statu- tory provision against stockjobbing, Gen. Sts. c. 105, §§ 5, 6; nor is it a wager contract. Bullardv. Smith, 139 Mass. 492 (1885). 2. If a broker, at the time he sells a certain number of shares of stock, has in his posses- sion certificates for that number of shares of such stock which he was duly authorized by his principal to sell for him, this takes the case out of the statutory provision against stockjobbing. Gen. Sts. c. 105, § 6. Frazier V. Simmons, 139 Mass. 531 (1885). _ 3. If a person contracting to deliver a cer- tain number of shares of stock at a future day has that number of shares in his possession or control when he makes the contract, the sale of such shares by him before the date of de- livei-y mentioned iu the contract does not make the original contract illegal, under the Pub. Sts. c. 78, § 6. Pratt v. American Bell Telephone Co., 141 Mass. 225 (1886). VIII. Marriage Agreements. An oral agreement to execute an ante-nup- tial contract is within the statute of frauds and if an oral agreement to marry is de- pendent upon such an agreement, and a part of it, no action can be maintained upon it. Chase v. Fitz, 132 Mass. 359 (1882). IX. New Promises by Insolvents, etc. 1. If a debtor, after obtaining a discharge in insolvency, performs work for his creditor, under an oral agreement that the value of the work shall be applied in payment of the old debt, he cannot maintain an action to recover money for the work; Gen. Sts. c. 105, § 3, do not apply to such a case. Pierce v. Mann, 130 Mass. 14 (1880). 2. A debtor while in bankruptcy wrote to his creditor as follows : " I shall pay you all I owe you with interest, but at this time I cannot. As soon as I can, I shall pay you. When 1 can, I shall pay up all my debts, and yours shall be the second that I pay. To pay you now, I cannot spare a dollar from my business, but if you will wait, I think I can pay you some time." Held, that these state- ments amounted only to a conditional promise to pay when the debtor should be able; and, iu the absence of evidence of his ability to pay, would not, under the Pub. Sts. c. 78, § 3, deprive the debtor of relying upon a dis- charge in bankruptcy, in bar of the recovery of a judgment upon the debt. Elwell v. Cum- ner, 136 Mass. 102 (1883). 3. A debtor while in bankruptcy wrote to his creditor as follows : " My lawyer says I must not pay any one a dollar until I get through bankruptcy, then I can pay if I want to do so. I shall pay you all and the interest, but you will have to give me time. This is all I can say now." Held, that this was not such evidence of a new or continuing contract, within the Pub. Sts. c. 78, § 3, as would de- prive the debtor of relying upon, a discharge in bankruptcy, in bar of the recovery of a judgment upon the debt. Elwell v. Cumner, 136 Mass 102 (1883). 4. A debtor, after his discharge in bank- ruptcy, wrote to his creditor, "I mean right; I will pay something on account; " and later, " I shall pay you something as soon as pos- sible." Held, in an action on the debt, that the letters did not take the debt out of the operation of the discharge in bankruptcy. Bigelow v. Norris, 139 Mass. 12 (1885). 5. A debtor, after his discharge in insol- vency, wrote to his creditor expressing his desire to pay all his debts, and his hope and trust that he would be able to pay the debt of his creditor in the future, mentioning partial payments made, and regretting that he could not do more. Held, insufficient to pre- vent the operation of his discharge. Kenney V. Brown, 139 Mass. 345 (1885). 6. A debtor, after he had applied for the benefit of the bankrupt act, wrote to his cred- itor: " I will send you the first spare ' V ' or ' X ' I have. I am compelled to go through bankruptcy, . as a single creditor held out against signing. I am so sorry I owed you. I will not long either, for I know a lone lady has nothing to lose." Held, in an action on the debt, that the letter did not take the debt out of the operation of a discharge in bank- ruptcy subsequently obtained. Bigelow v. Norris, 141 Mass. 14 (1886). 7. A debtor, after proceedings in insolvency had been begun, wrote to his creditor: " My last meeting of insolvency comes off the last of this month, when I intend to receive my discharge. I wish I could give you some money, as you ask, 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." Held, in an action on the debt, that the letter did not take the debt out of the operation of a discharge in iu- 495 GAMING. 496 Bolvency subsequently obtained. Dennan v. Gould, 141 Mass. 16 (1886). FRAUDULENT CONVEYANCE. See Fraud. FRAUDULENT PREFERENCE. See Bankrupt; Insolvency. FRAUDULENT REPRESENXATIONS. See Fraud. G. GAMING. 1. Under Gen. Sts. c. 85, §§ 1, 2, the amount of money lost as the net result of continuous gaming at one sitting, of mixed losses and gains or continuous losses, may be declared for in one count as a single loss. Hogle v. Con- nell, 134 Mass. 150 (1883). 2. If a loser of money by gaming does not bring an action therefor within three months, under Gen. Sts. c. 85, § 1, it will not defeat an action brought by another person, that the loser is to receive some benefit from the action, under an agreement between him and the plaintiff made after the right of action had accrued to the plaintiff, there being no covin or collusion between them by which suit was delayed by the loser. Morris v. Farrington, 133 Mass. 466 (1882). 3. That part of Gen. Sts. c. 85, § 1, author- izing an action by a third person is a penal statute; and consequently, under Gen. Sts. c. 155, § 50, such action must be brought within a year. Cole v. Groves, 134 Mass. 471 (1883). 4. A complaint on the Pub. Sts. c. 101, § 9, to a district court, alleged that the defendant, on a certain day, was the person having the control of a certain tenement described, and did then and there permit the said tenement to be used and resorted to for illegal gaming. In the Superior Court, on appeal, the defend- ant objected that the complaint did not allege that he maintained, or aided in maintaining, a common nuisance, or that the said tenement was a common nuisance, to the common nui- sance of all the citizens of the Commonwealth ; and that the possibility was not excluded that some other person might have had control of the premises on that part of the day when they were used for gaming. Held, that the defects alleged were merely formal, and the objec- tions were taken too late. Commonwealth V. Goulding, 135 Mass. 552 (1883). 5. The " covin or collusion " which bars an action, under the Gen. Sts. c. 85, § 1, to re- cover treble the amount of money lost by gaming, by a third person, after three months from the time of the loss, is covin or collu- sion between the loser and the winner of the money, and not between the loser and such third person. Cole v. Applebury, 136 Mass. 525 (1884). 6. At the trial of an action, under the Gen. Sts. o. 85, § 1, to recover treble the amount of money lost by gaming by C., the defendant contended that the action was not prosecuted by the plaintiff in good faith, and that C. was the real prosecutor of the action in the plaintiff's name; and, on cross- examination of the plaintiff, who testified that he had paid the counsel of record to bring the action, the defendant asked him how much he had so paid. Upon the plaintiff's objec- tion, the question was excluded. Held, that the defendant had no ground of exception. Cole V. Applebury, 136 Mass. 525 (1884). 7. The right of action of a minor to recov- er, under the Gen. Sts. c. 85, § 1, the amount of money lost by him by gaming, expires at the end of three months from the time of the loss. French v. Marshall, 136 Mass. 564 (1884). 8. If a minor fails, without covin or collu- sion, to prosecute an action, within the time limited, to recover, under the Gen. Sts. c. 85, § 1, the amount of money lost by him hy gaming, his guardian may in his own name maintain an action to recover treble the amount so lost, without regard to the ques- tion whether he knew of the loss within three months of its date. French v. Marshall, 136 Mass. 564 (1884). 9. A person, who appears in a municipal court as claimant of gaming implements seized under a warrant issued upon a com- plaint for their unlawful keeping, is not en- titled, at the trial of the complaint in the Superior Court, on appeal, to introduce evi- dence for the first time to show that the order _ of notice, issued on the information filed after the return of the warrant, was not properly served. Commonwealth v. Gaming Implements, 141 Mass. 114 (1886). 10. A person may be convicted upon a com- plaint, under the Pub. Sts. c. 99, § 10, as amended by the St. of 1883, c. 120, charging him with being present at an unlawful game, if the evidence at the trial shows that he was present at such a game, although it also tends to show that he was found playing the game. Commonwealth v. Hogarty, 141 Mass. 106 (1886). 11. At the trial of a complaint for the un- lawful keeping in certain rooms of gaming implements, evidence that the rooms were 497 GIFT. 498 resorted to for unlawful gaming at times previously to the day of the seizure of the implements under a warrant issued upon the complaint, is competent. Commonwealth v. Gaming Implements, 141 Mass. 114 (1886). 12. An action, under the Pub. Sts. _o._99 §§ 1, 2, to recover of the owner of a building treble the amount of money lost therein by gaming, does not survive against the legal representatives of the defendant, either at common law or by the Pub. Sts. c. 165, § 1. Yarter v. Flagg, 143 Mass. 280 (1887). As to the right of a mamed woman to maintain the action, since St. 1871, o. 312, see Husband and Wife. For a case involving the correctness of instructions concerning gaming, see Poor Debtor. GARNISHMENT. See Tktjstee Process. GAS. Injury from escape of, see Negligence. See also Equity, VI. pi. 7. GENERAL AVERAGE. See Insurance, V. GENERAL COURT. See Constitutional Law. Under the Gen. Sts. c. 5, § 9, and the St. of 1877, c. 181, a joint standing committee of the Legislature, appointed under the former statute, has no authority to contract debts on behalf of the Commonwealth, not having been empowered so to do by order of the two branches of the Legislature. Washburn v. Commonwealth, 137 Mass. 189 (1884). GIFT. See Bills and Notes ; Donatio Causa Mortis; Fraud, IV.; Husband and Wife; Savings Bank; Trust. 1. A., gave written directions to B., who had charge of the funds standing in A.'s name in a savings bank, to draw from the bank a cer- tain sum and give it to C. The paper was presented to B., who declined to draw the money, although afterwards verbally requested by A. to do so. After A.'s death, B. was appointed executor of his will, and was again requested to pay the money, but refused Held, in an action by C. against B., that there was no evidence of a perfected gift by A. in his life- time. Gerry v. Howe, 130 Mass. 350 (1881). 2. In an action by E. against the executor of the will of M., for money had and received, there was evidence tending to show that a deposit was made by a third person in a sav- ings bank, and a deposit-book was taken in the name of " E. or M. or the survivor of them;" that M. drew the money from the bank during the life of E. ; and that the amount so drawn out was put in the bank by the depositor as a perfected g^ft to the uses declared by the terms of the deposit-book, and that M. appropriated the money to her own use. E. admitted that she put no money of her own in the bank, and that she never had any exclusive possession or control of the deposit-book, and had no knowledge of the existence of such deposit until about the time it was withdrawn by M., which was after the death of the depositor. The evidence showed that M. had possession of the deposit-book when she withdrew the money. The judge instructed the jury, " that if they found the money was deposited by some third person in the name and to the use of 'E. or M. or the survivor of them,' and that such gift was com- pleted by a transfer and deKvery, and by a surrender of all control on his part over the fund, then the legal effect of such deposit would be the same as if in the name of ' E. and M. and the survivor of them; ' and that during their joint lives they would be entitled each to one half the dividends, and upon the decease of either the fund would go to the sur- vivor." Held, that the evidence did not es- tablish a trust; that it was for the jury to determine what were the terms of the gift; and that the instruction given was misleading. Ide V. Pierce, 134 Mass. 260 (1883). 3. On the issue whether the gift of a prom- issory note was made, statements of the al- leged donor, who died before the trial of an action on the note, made at different times before and after the time when the gift was alleged to have been made and inconsistent with the theory of a gift, are admissible to contradict the testimony of the donee, although not made in his presence. Whitwell v. Wins- low, 132 Mass. 307 (1882). 4. H. deposited a sum of money in a sav- ings bank in the name of E., " subject to the order of H." A few days afterwards H. asked E. to come to his house, showed him the deposit-book, said he was going to give it to him, and delivered it temporarily into his pos- session. H. then said he would keep the book for E., as he had a safe, and took it and put it into the safe. On the same day, by E.'s re- quest, H. signed and delivered to E. a paper certifying that the money was for him. H. never drew the interest upon the deposit, but allowed it to accumulate during his life, doing nothing to assert a personal ownership. E. gave seasonable notice to the bank that he should claim the money; but the bank paid the same to H.'s administrator. Held, in an action by E. against the bank, after the death 499 GIFT. 500 of H., for the amount of the depositj that the jury were authorized to find a completed gift of the money by H. to E. ; and that the bank had sufficient notice thereof. Eastman v. Woro- noco Savings Bank, 136 Mass. 208 (;1884). 5. A. deposited a sum of money in a savings bank in the name of B. , in whose name the pass-book, which A. kept in his possession, was issued, and the following condition was annexed: " Interest to be paid on order of A. Principal to be drawn by B. after decease of A." A. never had any communication with B. in regard to the matter, and B. did not know of the deposit until after the death of A. The by-laws of the bank provided that money deposited should only be di-awn out by the depositor or some person by him legally au- thorized, and that no payment should be made to any person without the production of the pass-book ; and that any depositor might des- ignate, at the time of making the deposit, the period for which he desired the same should remain, and the person for whose benefit it was made, and should be bound by such con- dition annexed to his deposit. Held, in an action by the executor of A.'s will against the bank for the amount of the deposit, in which action B. intervened as a claimant of the fund, under the Pub. Sts. c. 116, § 31, that there was not a perfected gift of the fund to B. ; and that the executor was entitled to it. Sherman v. New Bedford Savings Bank, 138 ■Mass. 581 (1885). 6. To constitute a gift of a sum of money, deposited in a savings bank by one person in the name of another, without the latter's knowl- edge, the depositor retaining possession of the deposit-book, the money must be deposited with the intention of making a gift of it to the person in whose name it is put, and it must be accepted by him. Scoit v. Berkshire County Savings Bank, 140 Mass. 157 (1885). 7. In an action by an administrator to re- cover a sum of' money given by his intestate to the defendant, on the ground that the money was obtained by the undue infiuence of the defendant, there was evidence that the donor was a woman eighty-four years of age, who was sick much of the time, weak in mind and memory, and broken down ; that the gift was of a large portion of the donor's estate ; that the defendant, who was not a relative of the donor, was her physician, and attended her frequently; that he had charge of all her affairs, and Was her only adviser; that he was consulted by the donor as to employing or discharging servants or nurses, and as to her domestic affairs; that she dressed according to his advice; that she relied upon him for direc- tion in all her affairs ; that the gift was made to him without consultation with any one ; that the fact of the gift having been made was kept secret by him until after her death ; and that, when the donor's relatives visited her, he kept away. Held, that the question whether the defendant exercised undue influence was properly submitted to the jury. Woodbury v. Woodbury, 141 Mass. 329 (1886). 8. In an action by an administrator to re- cover a sum of money given by his intestate to the defendant, on the ground that the money was obtained by the undue infiuence of the defendant, the jury were instructed that, when a fiduciary or confidential relation is estab- lished between a donor and a donee, a case arises for watchfulness on the part of those who have to pass on the validity of the gift, to see that this confidence has not been abused by the exercise of undue influence; that the mere existence of such a relation did not, as matter of law, operate to bar the right of the beneficiary to receive such a bounty; that if the donor was of sound mind, and clearly un- derstood the transaction, and exercised a free will in the act, under no restraint or undue influence, such gift would be supported ; that the law viewed such transactions with jeal- ousy; that if, at the time of the gift, the do- nor's mind was enfeebled by age and disease, though not to the extent of producing mental unsoundness, and the donor acted without independent and disinterested advice, and in the presence of the donee, and such gift was of a large portion of all the donor's estate, and operated to deprive those having a natu- ral claim to the donor's bounty of all benefit from the donor's estate, these circumstances, if proved and unexplained, would authorize a jury to find the gift void, through undue influence, without proof of specific acts or con- duct of the donee ; and that where the donee was a witness, and other evidence was in- troduced, the whole matter was for the deter- mination of the jui-y, and the general burden was on the plaintiff, taking all the evidence, natural presumptions, and inferences together, to establish the proposition of undue influence. Held, that the defendant had no ground of exception. Woodbury v. Woodbury, 141 Mass. 829 (1886). 9. In an action by an administrator to re- cover a sum of money given by his intestate to the defendant, on the ground that the money was obtained by the undue influence of the defendant, after a witness had testified to a conversation with the intestate about two years before her death, which disclosed her state of mind at that time towards her sister, because of the condition of the sister's son, evidence was admitted that the eister had living with her a son, who was partially blind at the date of the gift; and that the intestate then knew it. Held, that the defendant had no ground of exception. Woodbury v. Wood- bury, 141 Mass. 329 (1886'). 10. A. deposited several sums of money in a savings bank, "in trust " for certain rela- tives of his, and told each that he had done so, saying that he could control the money while he lived, but that it was theirs after his death. He gave the deposit-books into the possession of one of these persons, who had charge of A.'s books and papers; and A. di-ew the inter- est accruing on the several deposits. About a year before his death, A. said that he should not make a will; that he had provided for these relatives by depositing money in the savings bank. The night before he died, A. said to these persons, " When I am gone, you take these books and transfer the money to 501 GRANT. 502 your own names, and say nothing to nobody about it." Held, that there was not a per- fected gift of the money to said persons; and that the adrainisti-ator of A.'s estate was en- titled to it. Null V. Morse, 142 Mass. 1 (1886). 11. A corporation was authorized by will to lend money from the income of a fund, to the amount of $500, for a term not over five years, to each of certain apprentices, on his furnishing security for the repayment of the same, at the expiration of the term, with inter- est annually. The will further provided, that, if the interest were paid punctually, and in a certain other event, the obligation should be cancelled. The corporation deposited the sum of 1500 in a savings bank in the name of an apprentice, but payable to the corporation, as collateral security for the promissory note of the apprentice, by which he promised to pay the corporation $500 in. five years from date, or on demand, at the option of the trustees of the corporation, with interest an- nually. Three days before the five years from the date of the note expired, the trustees " voted to surrender " the note of the appren- tice. On the same day, and before anything further had been done, an action was brought against the apprentice by a third person, and the savings bank and the corporation were summoned as trustees. Held, that they were entitled to be discharged. Hayden v. Uayden, 142 Mass. 448 (1886). GOODS SOLD AND DELIVERED. See Assumpsit, IV. ; Frauds, Statute of: Sale. GOOD WILL. See Contkact, IV. (a) pi. 9. GOVERNOR. As to the removal of a judicial oflBcer by the Governor and Council, upon address of the Legislature, see Constitutional Law, IV. Under the Pub. Sts. c. 7, § 45, providing that the Governor, with five at least of the Council, shall " examine " the returns of votes, made by the city and town clerks to the Sec- retary of the Commonwealth, under § 40, and issue his summons to such persons as appear to be chosen, the Governor has no power to recount the votes. Opinion of the Justices, 136 Mass. 583 (1884). GRAND JURY. If a venire is under the seal of the court, and directs the drawing, selecting, and sum- moning of a grand juror from a particular town, and the return upon the venire is signed by a constable of the town, and shows that the person named in the return was so drawn and selected and was summoned to attend at the time specified in the venire, and such per- son attends and serves as a grand juror, and there is no question of his identity and qualifi- cations in point of fact, neither an inconsist- ency in the description in the return of the time for which he was summoned, 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, nor the absence of a statement of his qualifications in the venire and return, affects the validity of an indictment found by the grand jury on which he serves. Commonwealth v. Moran, 130 Mass. 281 (1881). GRANT. As to construction of grants generally, see Deed. See also Boundary, pi. 5. 1. An order of the General Court of Ply- mouth, made in 1636, that the town of Scituate be allowed to dispose of the land beyond the North River, except that which was before disposed of to others, did not operate as a grant to the town of a tract of land beyond the North River, which the General Court had three years before ordered to be reserved until the resolution of certain persons named in respect thereto should be ascertained ; nor as a grant of the sea-shore in front of the land reserved, although it was not included in the reservation. Litchfield v. Scituate, 136 Mass. 89 (1883). 2. A grant of land, made by Plymouth Colony to certain proprietors, defined the line between the proprietors and a town as begin- ning at high-Tvater mark and running three miles inland into the woods. Held, that the starting point was for the purpose of defining the distance the grant extended inland, and had no reference to the question whether it extended to low-water mark. Litchfield v. Scituate, 136 Mass. 39 (1883). 3. An order of the General Court of Ply- mouth Colony in 1642-3, defining the bounds of the town of Scituate by a line up the Indian Head River to a pond, from thence to another pond, named, and from thence to the sea by a described line, did not convey the sea-shore between the side lines to the town. Litchfield v. Scituate, 136 Mass. 39 (1883). 4. In the absence of evidence that a regula- tion similar to the Massachusetts colonial or- dinance of 1647 was in force in Plymouth Colony, or that a similar usage prevailed there, by which flats would pass as adjacent to up- land, a grant of lands, bounding on the sea, by the Plymouth Colony, conveyed only the upland. Litchfield v. Scituate, 136 Mass. 39 (1883). 5. The St. of 1806, c. 18, giving the owners of lots of land adjoining Acushnet River, and 503 GUARANTY. 504 their heirs and assigns, power to erect, con- tiuue, and maintain wharves, extending to the channel of the river, operates as a legisla- tive grant to the respective owners of such lots of the interest in the soil between their lots and the channel of the river, sufficient to enable them to maintain trespass if their rights are invaded. Hamlin v. Pairpoint Manuf. Co., 141 Mass. 51 (1886). 6. C. petitioned the proprietors of the com- mon and undivided lands in N. " to set ofE to him all the common land to the eastward of S. village and A. heights and in front of S. village." A meeting of the proprietors was called "to act upon the petition of C. for land to be set off to him near S." At the meeting it was voted " that the petition of C. for land near S. be granted;" and the lot- layers presented returns and a map pertaining to land to be set ofi to C, the material part of which was as follows: " Pursuant to a vote of proprietors of the common and undi- vided lands of N., we have this day set off in severalty to C. all the common and undivided land in and near the village of S., whether above or below the bank, contained and en- closed within the lines of the map or plan herewith presented; " and it was voted " that the returns and map of the lot-layers be ac- cepted." The plan bounded the lot set off to . C. southeasterly by the ocean, northeasterly and northwesterly by lots previously set ofE to Other persons, and northwesterly by a line defined by metes and bounds, as well as by courses and distances. At the trial of a writ of entry by a person claiming under C, it was admitted that the base or northerly " line of the lay-out passed through the eastern part of the village of S.," which was a part of N., but which, so far as appeared, had no legal, defined boundary. Held, that the grant by the proprietors to C. was within the scope of the business of which they were notified by the call for the meeting, and was valid. Coffin V. Lawrence, 143 Mass. 110 (1886). 7. In 1787, a town appointed a committee to dispose of the highways in the town, or any part thereof. In 1788, the committee report- ed that they had laid out the old ways of a certain width, and had measured out and bounded the several pieces of land at the front, rear, or sides of each man's lot bounded on the said new surveyed ways, which pieces of land the town would sell to the respective owners of the lots. The town voted to accept the report of the committee; that the tracts of land described " be and hereby are granted in fee to " the persons named; and that, when- ever payment should be made, " the town way in each tract respectively should be discon- tinued." Held, that the grant did not pass the fee to the centre of the ways as newly laid out. Gaylord v. King, 142 Mass. 495 (1886). 8. The owner of land bordering upon a highway, the fee of which was in the town, petitioned the town to allow him to straight- en his fence by extending it a few feet into the highway. A committee appointed by the town reported that the land prayed for would not encroach upon the county way or injure the street, and recommended the town to grant a parcel of land, according to a plan. The town voted to allow the petitioner to en- close a strip of town land in front of his land, on payment of a certain sum, as described in the report of the committee. Held, that the grant did not pass the fee to the centre of the way. Gaylord v. King, 142 Mass. 495 (1886). GREAT POND. See CoRPOEATioN, VI. pi. 3; Fish; Pokd. GUARANTY. As to when guaranty must be in writing, see Frauds, Statute of. Liability as guarantor of promissory note, see Bills and Notes, V. See also Surety. 1. H. agreed in writing with the plaintiff to " assume and pay " all the debts, notes, and accounts due from a firm, of which the plain- tiff was a member, and to "indemnify and save harmless " the plaintiff and the firm against any claims, suits, costs, and damages, by reason of the debts, notes, and accounts set forth. Held, that these were independent stipulations, and that the agreement to pay was not merged in the agreement to indem- nify; and that the plaintiff could maintain an action against a guarantor of the agree- ment before he had paid any of the debts. Farnsworth v. Boardman, 131 Mass. 115 (1881). 2. A. and B. entered into a written con- tract, which mentioned B. in several places as the agent of A., and by which he assumed some duties of agency; it also recited that A. agreed to sell his goods to B., who was made absolutely liable to pay for all goods delivered under it. C. made a written agreement by which he guaranteed to A. " the full perform- ance of the foregoing contract by B , and the payment by B. of all indebtedness to A. for property sold to B. under this contract.',' Each contract was dated May 8, but the first- named contract was not delivered until June 8, and the contract of guaranty was not de- livered until June 25. Held, in an action on, the guaranty, that, by the contract between A. and B., the latter was the purchaser of all goods delivered under it; that, by the terttis of the guaranty, C. was not liable for goods sold by A. to B" before June 8, but was liable, not only for goods sold after June 25, but also for goods sold between June 8 and that date, C. knowing that the contract between A. and B. had been delivered previously, and that the parties were transacting lousiness under it. Held, also, that oral evidence was inad- missible to show that the parties understood that the contracts were to have the same effect as if they had been delivered on the day of 505 GUARANTY. 506 their date. Davis Sewing Machine Co. v. Stone, 131 Mass. 384 (1881). 3. In an action on an agreement made by H. with the plaintiff, by which H. agreed " to assume and pay all the debts, notes, and ac- counts due from " a firm, of which the plain- tiff was a member, "or which may have been incurred for their benefit," and schedules of which were annexed, it appeared that one of the notes named in the schedule was made by a third person payable to H., and indorsed by him; that he gave it to the firm without con- sideration ; and it was sold by the firm, with- out becoming liable upon it, and the proceeds received by the firm. It further appeared that the maker of the note had signed notes to a large amount for the accommodation of H., which fell due at the same time as the note in question. Held, that these facts would war- rant a finding that the note was included in the contract, and that a guarantor of the contract was liable to the plaintiff for the amount of it, although the plaintiff had not paid it. Farnsworth v. Boardman, 131 Mass. 115 Q881). 4. B. owned land on which he desired to build houses. A bank agreed to lend a cer- tain sum of money for this purpose on mort- gage, the money to be paid by the bank to A. as the work progressed. A. guaranteed the contract, and that the houses should be built in a specified manner. At the time the con- tract was made, and the first instalment ad- vanced, the foundations of the houses were built, and were defective. A. knew this, but the bank did not. Held, in an action by the bank against A. for breach of contract, that he was liable for the loss caused to the bank by reason of the defective foundations; and that it was no defence that the bank had sold one lot of the land under the power of sale in the mortgage of that lot, A. not having offered to pay the mortgage and take an assignment of it, as under the contract he had the right to do. Norway Plains Savings Bank v. Moors, 134 Mass. 129 (1883). 5. The following instrument, signed by the defendant, was delivered to the plaintiff: " Please deliver to H. goods as he may want from time to time, not exceeding in amount three hundred dollars, and if not paid for by him within thirty days I will be responsible for the same." Held, that it was not a con- tinuing guaranty, but was exhausted and satisfied by the first purchase by H. of goods to the amount of $300, followed by payment for the same. Cutler v. Ballou, 136 Mass. 337 (1884). 6. A guaranty, indorsed upon a lease of cer- tain premises, and signed only by H., recited payment of the consideration to " each of us ; " that " we hereby jointly and severally guaran- tee " the performance of the covenant ; and, in conclusion, " Witness our hands and seals." H. was requested to sign the guaranty by the lessee, who' represented to him that it was to be signed also by another person. The lessor did not know that such a representation was made to H. The lessee entered into pos- session of the premises ; and, during the term, H. assented in writing to a modification of the lease, by a reduction of the rent, " such modification in no respect to impair or affect the above guaranty." The lessee failed to pay the rent reserved by the lease, and the lessor brought an action against H. on the guaranty. Held, that these facts would war- rant a ruling that the defendant was liable. Sartwell v. Humphrey, 136 Mass. 396 (1884). 7. A declaration alleged that a corporation, by its treasurer P., made a promissory note payable to P., for the purpose of negotiating it for the benefit of the corporation; that P. indorsed the note, waiving demand, notice, and protest; that the defendants, who were directors in the corporation, some of whom had approved the note in writing, " for said purposes and for said considerations," made the following contract, which they indorsed on the note : " We hereby guarantee the pay- ment of the within note ; " that the note was then, before its maturity, sold and delivered to the plaintiff for a valuable consideration paid by him to P. Held, on demurrer, that the declaration showed a guaranty of the note, for a sufficient consideration, to the plaintiff, as the first indorsee and holder for value. Jones V. Dow, 137 Mass. 119 (1884). 8. A. , the husband of B. , who had deserted her, agreed to pay her $50 a month for her support. Subsequently, C. executed the fol- lowing guaranty: " I hereby guarantee to B. the fufilment of A.'s agreement to pay her the sum of fifty dollars a month ; and in default of his paying the same, I agree to pay the same myself. And I also agree to pay to B.," on a day named, " the gross sum of five thou- sand dollars, or arrange for its payment with- in six months from that time ; and, on such payment, the payment of fifty dollars a month is to cease. But from the above amount shall be deducted the full amount received up to the time of gross payment." Held, in an action by B. against C. on the agreement, that the provision that the full amount re- ceived by B. should be deducted from the gross sum promised applied to money received from A., as well as to money received from C. after as well as before the time fixed for the gross payment, and that so long as B. re- ceived monthly payments from A., the time of making the gross payment was postponed. Thome V. Brown, 139 Mass. 35 (1885). 9. A lease of a house was executed, the lessee "to hold for the term of one year" from a certain date, paying a certain rent per annum. The lessee covenanted to pay the rent in equal monthly instalments, in advance, on the first day of each month, during the tenancy, " and to pay the rent as above stated during the term, and also the rent as above stated for such further time as the lessee may hold the same." On the back of the lease was a writing, by which the signer guaranteed to the lessor " the payments of the rent " stipu- lated in the lease. Held, that, if the lessee held over after the expiration of the year, and failed to pay rent for such further time, the guarantor was liable. Rice v. Loomis, 139 Mass. 302 (1885). 507 GUARDIAN AND WARD. 508 10. B., the grantee of land subject to a mortgage, which he assumed and agreed to pay, promised A., the assignee of the mort- gage and the indorsee of the promissory note secured thereby, in consideration of A.'s agree- ment to forbear foreclosure of the mortgage for a certain time, the note being overdue and unpaid, to become responsible for the pay- ment of the note, and wrote his name upon the back of the note for that purpose; and A. forbore to foreclose the mortgage, and B. afterwards made payments on the note. Held, in an action by A. against B., that the indorse- ment of the note by B. imported a guaranty of the payment of it to A. , and authorized A. to write over B.'s name, during the trial, the words, " I guarantee the payment of the with- in note." Scott v. Calkin, 139 Mass. 529 (1885). 11. A negotiable promissory note of a cor- poration, signed in its name by P., treasurer, and payable to the order of P. , was indorsed by the payee for the accommodation of the maker. On the back of the note was the fol- lowing, signed by the defendants: " We here- by guarantee the payment of the within note." Held, that the defendants' contract was not with the payee, but with the first holder for value. Held, also, that the guaranty was not within the statute of frauds. Jones v. Dow, 142 Mass. 130 (1886). 12. The declaration in an action alleged that a corporation, by its treasurer. P., made a promissory note for $5,000, payable to P., for the purpose of negotiating it for the bene- fit of the corporation; that P. indorsed the note, which was approved by the directors of the corporation; that the defendants, who were directors, "for said purposes and for said considerations," indorsed upon the note the following contract : " We hereby guarantee the payment of the within note ; " and that the note was then, before its maturity, sold and delivered to the plaintiff for a valuable consideration paid by him to P. At the trial, the plaintiff testified that P. asked him to dis- count the note; that he had the transaction with him as treasurer ; that P. said the money was going to the corporation ; that he let P. have $1,000, and took his individual note for the amount, with the note for $5,000 and a bill of sale of a lot of railroad ties as collateral security, with a power of sale on default of payment within five days; that he afterwards made two similar loans of $250 each, taking P. 's individual note for each with the same security ; that these loans were not paid when due ; and that payment was demanded. Held, that sufficient consideration had been shown to support the action on the guaranty; that there was no variance between the declaration and the proof; and that the testimony of the plaintiff was admissible for the purpose of identifying the plaintiff as the first holder for value and the promisee in the guaranty, and also to show the consideration. Jones v. Dow, 142 Mass. 130 (1886). For a case denying the power of certain classes of corporations to make certain guar- anties, see Corporation, VI. pi. 2. GUARDIAN AND WARD. See Executor; Gaming; Infant; In- sanity; Limitations of Actions, III. pi. 6 ; Trust. 1. By Gen. Sts. c. 109, § 1, every appoint- ment by the Probate Court of a guardian of a person residing in this Commonwealth, and who is not now under guardianship, whether there has been a previous guardianship or not, must be made in the county in which the ward resides when the petition for such appointment is presented; and there is nothing in St. 1873, c. 314, annexing the town of West Roxbury in the county of Norfolk to Boston in the county of Suffolk, which can be construed as depriving the Proloate Court of Suffolk county of the right to appoint a guardian of a minor resident in West Roxbury, upon the resigna- tion of a former guardian appointed by the Probate Court of Norfolk county. Harding v Weld, 128 Mass. 587 (1880). 2. It is not in the power of a guardian of an insane person to make a contract or to make admissions which shall bind the estate of his ward. Massachusetts General Hospital V. Fairbanks, 132 Mass. 414 (1882). 3. If one contracts with a guardian for the support and care of his ward, the guardian, personally, is bound, and although when sued he is described in the writ as guardian, such description may be rejected as surplusage. Rollins V. Marsh, 128 Mass. 116 (1880). 4. A surety on a special bond, given by a guardian upon obtaining a license to sell his ward's real estate for maintenance, under Gen. Sts. c. 102, §§ 26 et seq., is liable for a failure by the guardian to invest the proceeds of the sale not needed for maintenance. McKim v. Morse, 130 Mass. 439 (1881). 5. A guardian is entitled in equity to have securities, given by a former guardian to his sureties to indemnify them against their lia- bility for his debt to the ward's estate, sold, and the proceeds applied to the payment of that debt, the former guardian and the sure- ties having become insolvent, and a portion only of the debt having been paid by the sure- ties; and the sureties are not entitled to have the amount so paid allowed to them out of the proceeds of the securities before the claim of the guardian is satisfied, but only to the balance remaining after payment of such claim. Kelly v. Herrick, 131 Mass. 373 (1881). 6. The failure to bring an action, within the time prescribed by the statute of limitar tion, for breaches of a bond given by the guardian of an insane person, in not return- ing an inventory within three months, and in not rendering an account within one year of his appointment, does not dischai-ge the sure- ties on the bond from liability for a subse- quent breach by the principal, in not paying upon demand to his successor, after removal from office, the estate remaining in his hands as guardian. McKim v, Williams, 134 Mass. 136 (1883). 7. A guardian charged in her account the price of a piano purchased for her ward, a minor daughter. It appeared that the piano 509 GUARDIAN AND WARD. 510 was purchased with the ward's money, and was a suitable thing for her to have; that, after the ward was married, the guardian re- fused to let her have the piano, and, at the hearing before the judge of probate, when told that the item would not be allowed, un- less she would state that she would give up the piano, refused to answer. Held, that the item was properly disallowed. Pierce v. Pres- cott, 128 Mass. 140 (1880). 8. The guardian of an insane person who had been engaged in a manufacturing busi- ness, continued to carry on the business, either at the request or with the concurrence of all parties interested in the ward's estate, the result of which was advantageous to the es- tate. The business required storage-room, and the guardian erected a building for such purposes on land of the ward's wife, and charged the cost of the building to the ward's estate; but this charge was disallowed by the Probate Court, and he was required to ac- count to the estate in money for the amount so charged. Held, that the guardian was en- titled to charge the estate a reasonable rent for the building. Murphy v. Walker, 131 Mass. 341 (1881). 9. A guardian, in ignorance of the provis- ion of the statute under which an intestate estate descended to her ward, but knowing all the facts upon which her ward's title de- pended, permitted a decree to be taken upon the petition of the administrator of the in- testate for distribution of his estate, which petition, also, was drawn in ignorance of the provision of the statute aforesaid, and under such decree received, in her personal capacity as a distributee, one quarter of her ward's estate aforesaid, and saw distribution made of one half of said estate among others not en- titled to it. Held, upon an appeal from an order of the Probate Court in proceedings upon the settlement of the guardian's final account with her ward, that, although the decree of distribution could not be impeached in this, a collateral proceeding, yet that it was open to the ward to contend that the guardian, al- though she had no actual knowledge of the provisions of the statute aforesaid, was guilty of negligence in allowing the decree of dis- tribution to be made, and in not appealing therefrom, and should therefore be charged, not only with the amount personally i-eceived by her, but also with the amounts paid to the other distributees as aforesaid. Pierce v. Pres- cott, 128 Mass. 140 (1880). 10. Whether a guardian should be allowed a general commission in addition to a charge for special services depends largely upon how he has managed the estate, and whether it has been kept invested by itself. Pierce v. Prescott, 128 Mass. 140 (1880). 11. On a petition to the Probate Court to have the final account of a guardian reopened, it appeared that the matter in controversy was tried and determined by that court after hear- ing the same parties at the allowance of the account, which was more than two years be- fore the application to reopen it, from which no appeal was taken ; and that the balance of that account was the basis of the inventory filed by the guardian as administrator of his ward, and of his account as administrator, which was allowed by the Probate Court and by this court on an appeal taken by the pres- ent petitioner. Held that, under these cir- cumstances, the Probate Court was not author- ized to reopen the account, upon the mere ground that its decision of a question of fact, fully heard and determined at the hearing upon the allowance of the account, was erro- neous. Cummings v. Cummings, 128 Mass. 532 (1880). 12. The indorsing of a promissory note by a spendthrift under guardianship conveys no title in the note to the indorsee, although no copy of the complaint for the appointment of a guardian is filed in the registry of deeds, as provided by Gen. Sts. c. 109, § 10. Lynch v. Dodge, 130 Mass. 458 (1881). 13. A guardian cannot, during the exist- ence of that relation, maintain an action at law against his ward for necessaries furnished to him, even if the guardian has no property of the ward in his possession. McLane v. Curran, 133 Mass. 531 (1882). 14. A person was appointed guardian of a minor by the Probate Court in this Common- wealth, where he and his ward resided. He was also subsequently appointed guardian by the chancery court in another State by ancil- lary letters of guardianship, and as such col- lected in that State a certain sum of money. This sum he included in his inventory filed in the Probate Court, and also filed his account therein ; and, by a decree of that court, there was found to be due from him a certain sum, which decree is now in full force. He re- signed as guardian in this Commonwealth, his resignation was accepted, and another person was appointed guardian in his place ; and he had not received his discharge as guardian in the other State. Held, that, so long as the decree of the Probate Court remained in force, there was a breach of the condition of his bond, that, at the expiration of his trust and on the settlement of his accounts, he should "pay over and deliver all the estate and effects remaining in his hands, or due from him on such settlement, to the person or per- sons lawfully entitled thereto." Brooks v. ToUn, 135 Mass. 69 (1883). 15. In 1855, a guardian, acting under a license from the Probate Court, and intending to convey her two minor wards' one undivided fifth each of a lot of land, in which she had an estate of dower, by mistake conveyed ' ' two undivided fifths of two undivided thirds" of the lot. Through the agency of G. she be- came the purchaser, and made improvements, and in 1887, after the wards became of age, conveyed the land to G., who made costly im- provements. The guardian did not invest the proceeds of the sale for the ward's benefit, and did not pay over or account for the same. The wards did not know of her transaction with G., and had only a general knowledge of the visible improvements. Held, on a bill in equity by the assignees in insolvency of G., filed in 1880, against the former wardSj to pre- 511 HEIRS AND DEVISEES. 612 vent them from setting up a title to the land, that the bill could not be maintained. Dick- inson V. Durfee, 139 Mass. 232 (1885). 16. A guardian is liable to his ward for the rent of the ward's real estate which he re- ceived, or which he might have received by the use of due diligence. Shurtleff \. Rile, 140 Mass. 213 (18S5). 17. A guardian is liable to his ward for the loss to the ward of the value of his real estate sold, for the non-payment of a tax assessed thereon, more than two years before the ward became of age, the guardian having the means to pay the tax, derived from the rent of the real estate ; but the guardian is not so liable to a ward who became of age before the sale. Shurtleffv. Rile, 140 Mass. 213 (1885). 18. Two sons and two daughters, after the death of their parents, continued to occupy the house left by their father, forming one family. One son and one daughter were of age, and the others were minors. The elder son, who was appointed guardian of the minors, contributed to the support of the family, but a larger part of the household ex- penses were paid by the younger son, who was industrious and of good character, out of the wages earned by him, which he was allowed by his guardian to receive and retain. No account was kept of the amounts expended by either of them. The younger daughter did the housework, and the elder daughter was an invalid, unable to work. Held, in an action upon the guardian's bond, that he was not guilty of a breach of duty towards his ward in allowing him to receive his wages and to ap- ply them towards the support of the family. Held, also, that the younger daughter was not entitled to claim wages for her services over and above what her support was fairly worth. Shurtleffv. Rile, 140 Mass. 213 (1885). 19. Under the Pub. Sts. c. 156, § 4, it is no defence to an action by a guardian in the name of his ward, that his appointment as guardian in this Commonwealth was of no effect, because the ward did not reside here, unless the want of jurisdiction in the Probate Court to appoint appears of record. Derome v. Vose, 140 Mass. 575 (1886). 20. If a guardian's sale under a license of the Probate Court is void on account of a de- fective notice, it may be confirmed by a pro- ceeding in equity under the Pub. Sts. c. 142 § 22, although made before the passage of the St. of 1873, c. 253, § 3, of which § 22 of the Pub. Sts. c. 142, is a re-enactment. Noit v. Sampson Manuf. Co., 142 Mass. 479 (1886). 21. In 1863, a ward's interest in land was sold by his guardian under a license from the Probate Court, of which proper notice was not given. The sale was conducted in good faith. All the other interests in the land were sold at the same time, and the land brought its full value. Expensive improvements were subsequently made upon the land by the pur- chasers, without knowledge of any defect in the title. The guardian charged himself with the proceeds of the' sale in his account, and was charged by the court. Suit was brought on his bond by a subsequently appointed guardian, which was prosecuted by the ward after he became of age in 1882. Held, that these facts constituted an equitable defence, under the St. of 1883, c. 223, § 14, to a writ of entry, brought by the ward in 1885, to re- cover his interest in the land. Nott v. Samp- son Manuf. Co., 142 Mass. 479 (1886). 22. A ward, after coming of age, is not en- titled to prove, against the estate in insol- vency of his guardian, a claim for the property whicn came into the hands of the guardian, until the latter has settled his account in the Probate Court, or until a judgment has been obtained upon his bond. Murray v. Wood, 144 Mass. 195 (1887). For a case involving the right of an assignee in insolvency to treat as a fraudulent prefer- ence a deposit by a guardian to make good money misappropriated by him, see Iksol- VBNCY. For a statement of the measure of the liability of a surety for breaches of the bond before his discharge, see Executor, II. pi. 2. As to what will be considered upon an ap- peal from the allowance of a guardian's ac- count, see Appeal, IV. pi. 4, 6. As to when an appeal will not lie from a decree disallowing an account, see Appeal, I. pi. 9. H. HANDWRITING. See Evidence, IX. HARVARD COLLEGE. For a case involving the administration of a trust for Harvard College, see Chakitt, pi. 7. HEIRS AND DEVISEES. See also Adoption; Beneficiary Asso- ciation; Descent; Devise; Dower; Ex- ecutor; Trust; Widow; Will. 1. A bill in equity, against the heirs of a deceased person, to recover a debt due from his estate, cannot be maintained under Gen. Sts. c. 101, §§ 31-34, in the absence of allega- tion or proof that the estate has been settled. Grow V. Dobbins, 128 Mass. 271 (1880). 613 HOMICIDE. 514 2. A promissory note, which matures more than two years after the giving of bond by the executor of the will of the deceased maker, is a debt for which provision is made in Gen. Sts. 0. 97, § 8; and if the holder does not pre- sent his claim to the Probate Court under that section, he cannot maintain an action thereon against the legatees of the deceased, under Gen. Sts. o. 101, § 31. Pratt v. Lamson, 128 Mass. 528 (1880). For a case involving the question whether, in a marriage settlement, the words "heirs and assigns" were used as words of limita- tion or of purchase, see Husband and Wife, IV. pi. 1. See also Dowek, pi. 5. HIGHWAY. See Wat. HOMESTEAD. See Dowek. 1. A man acquired a right of homestead under St. 1855, c. 238. This statute was re- pealed by St. 1857, c. 298, saving rights ac- quired under the previous statute. Gen. Sts. 0. 104, § 3, provided that existing rights of homestead should be held notwithstanding the repeal of the statute under which they were acquired, and § 12 provided that the right of homestead of any householder existing at his death should continue for the benefit of his widow. After the passage of the last-named statutes, the man married and died. Held, that his widow was entitled to have an estate of homestead set off to her. Cowdrey v. Cow- drey, 131 Mass. 186 (1881). 2. A widow having an estate of homestead is entitled to have her dower assigned to her out of the whole of the real estate of her de- ceased husband, and then to have her estate of homestead set off to her from the remainder of the estate. Cowdrey v. Cowdrey, 131 Mass. 186 (1881). 3. The assignment, as her dower, to the widow of a person who acquired a homestead under St. 1855, c. 238, which existed at his death, of certain specific rooms in the house and certain specific parcels of land, with rights of way over other parts of the house and over parts of the remaining land, does not make her a tenant in common of the servient estate with the heir at law of the deceased, so as to bar her of an estate of homestead in the premises. Weller v. Weller, 181 Mass. 446 (1881). 4. If a person, having a right of homestead, executes a deed to another of an undivided half of the land, this bars the right of home- stead, and he cannot acquire a new right of homestead by continuing to occupy the prem- ises in common with the grantee; and it SUPPLEMENT. — 17 makes no difference that the wife of the grantor does not join in the deed until just before it is recorded, nearly five years after it was made, if the deed was delivered to the grantee with the understanding that she was to sign it, and she signed it in pursuance of the original agreement. Howes v. Burl, 130 Mass. 368 (1881). 5. Under a deed of land to " S. D., wife of A. D.," "to be held by said D. as a home- stead," habendum " to the said S. D. and her heirs and assigns, to her and their use and be- hoof forever," the wife acquires ahomestead; and if, after she has ceased to live with her husband, and has obtained an absolute divorce from him, he continues to occupy the prem- ises, no order concerning the land having been made in the divorce proceedings, she may re- cover possession of them by writ of entry. Dunham, v. Dunham, 128 Mass. 34 (1879). 6. The widow of a person who had acquired an estate of homestead continued, with his minor children, to occupy the premises, in which an estate of dower was set off to her, for several years, when she built a house else- where and moved her household goods into it, and has since resided there. The children continued to live on the premises, and ceased to be minors before the widow moved there- from. When the widow moved i nto the house built by her, she did not know that she had a right of homestead in the premises, and never intentionally abandoned such right. Held, that the widow had ceased to occupy the premises, and was not entitled to an estate of homestead therein. Paul v. Paul, 136 Mass. 286 (1884). 7. An estate of homestead, under the St. of 1855, c. 238, does not exist in land held in common and undivided. Holmes v. Winches- ter, 138 Mass. 542 (1885). 8. While the St. of 1855, c. 238, was in force, a parcel of land was purchased by a firm with a view to its occupancy by one member as his home. Immediately after the purchase, the amount was charged to this member on the books of the firm, and he took possession of it and occupied it. After the repeal of the St. of 1855, the other part- ner released his interest to the one in posses- sion. Held, that no estate of homestead was acquired under the statute. Holmes v. Win- chester, 138 Mass. 542 (1885). 9. A widow, who, in the lifetime of her husband, voluntarily leaves, with him, and with no intention of returning thereto, prem- ises owned by him, and occupied by them for three years as a homestead, under the St. of 1851, c. 340, he having conveyed them by a deed in which she joins in release of dower only, cannot maintain a writ of entry to re- cover the premises. Foster v. Leland, 141 Mass. 187 (1886). HOMICIDE. As to homicide by negligence of carriers, see Carrier, IX.; Street Railway. 615 HOUSE. 516 For a case involving the question of the materiality of certain allegations in an in- dictment against the conductor of a train, see Carrier, X. pi. 8. See also Accessory, pi. 1. 1. At the trial of an indictment for man- slaughter, in which the evidence shows that the deceased made an attack upon the defend- ant, on the issue whether the defendant acted in self-defence and under a reasonable appre- hension of bodily harm, evidence is admissi- ble in defence that the deceased was a larger and more powerful man than the defend- ant. Commonwealth v. Barnacle, 134 Mass. 215 (1883). 2. At the trial of an indictment for the manslaughter of G., by shooting him with a pistol, there was evidence that G. made an attack upon the defendant, giving him some serious blows about the head and face, and that during the encounter the defendant shot G. with a pistol. The defendant asked the judge to rule that, "if the defendant had rea- son to believe that G. intended to do him great bodily harm, and had reason to believe he was in danger of great bodily harm, he would be justified in defending himself by shooting his assailant." The judge gave the instruction requested, but inserted before the words "he would be justified" the words " which no other means could effectually pre- vent." Held, that the words " if the defendant had reason to believe " qualified the whole of the instruction; and that the defendant had no ground of exception. Commonwealth v. O'Malley, 131 Mass. 423 (1881). 3. The provision made by St. 1877, c. 200, for an autopsy by a medical examiner in cases of death by violence, does not, at the trial of an indictment for manslaughter, render inad- missible other competent evidence as to the condition of the deceased. Commonwealth v. Dunan, 128 Mass. 422 (1880). 4. The magistrate presiding at an inquest, under Pub. Sts. c. 26, is only required, by § 15, to file his report with the records of the Superior Court; and if he files, with the re- port, his minutes of the testimony taken at the inquest, one indicted for killing the per- son on whose body the inquest is held is not entitled to put in evidence the fact that the testimony was so filed, and that it was after- wards suppressed by the government. Com- monwealth v. Ryan, 134 Mass. 228 (1883). 5. The defendant being on trial for the murder of a woman in 1880, contended that the murder was committed by the woman's husband, and in order to show that at the time of the homicide she and her husband were living together in unfriendly and hostile relations, offered to show threats and acts of unkindness by the husband toward her in 1874 and in 1877. The presiding justices ex- cluded the evidence. Held, that it was within their discretion to determine whether the evi- dence offered was so remote in time, or so in- significant in character, as to furnish no aid in deciding tlie fact to be found. Common- wealth V. Abbott, 130 Mass. 472 (1881). 6. At the trial of an indictment for the murder of a woman by poison, there was evi- dence that the life of licentiousness and de- bauchery which she had led would account for her death and the symptoms attending her last sickness ; and that her reputation for so- briety was not good. The defendant then offered to show particular occasions when the woman had been seen drunk. Held, that, as it did not appear that the particular acts of drunkenness were connected with the death of the woman, or were near the time of her death, it was within the discretion of the pre- siding justices to admit or reject them, and that the defendant had no ground of exception to their rejection. Commonwealth v. Ryan, 134 Mass. 223 (1883). 7. An indictment for manslaughter, by causing the clothes of the person killed to be saturated with kerosene, need not allege that the accused knew of the deadly tendency of the kerosene, or that it was of a dangerous ten- dency. Commonwealth v. Pierce, 138 Mass. 165 (1884). 8. If a person publicly practising as a phy- sician, ou being called upon to attend a sick woman, prescribes, with foolhardy presump- tion or gross recklessness, a course of treat- ment which causes her death, he may he found guilty of manslaughter, although he acted with her consent, and with no evil intent. Commonwealth v. Pierce, 188 Mass. 165 (1884). 9. At the trial of an indictment for man- slaughter, there was evidence that the de- fendant, who practised as a physician, on being called to attend a sick woman, pre' scribed that her clothes should be kept sat- urated with kerosene, and that this course of treatment caused her death. The jury were instructed that the defendant was "to he tried by no other or higher standard of skill or learning than that which he necessarily as- sumed in treating her; that is, that he was able to do so without gross recklessness or foolhardy presumption in undertaking it." Held, that the instruction was sufficiently favorable to the defendant. Commonwealth v. Pierce, 138 Mass. 165 (1884). HORSE. Of injury to horse escaping upon railroad from highway, see Railroad, V. (a) pi. 3. See also Negligence ; Way. HORSE RAILROAD. See Negligence ; Street Railway. HOUSE. See Arson; Boundary; Covenant; Easemennt. As to when a house is personal property, see Fixtures; Personal Property. 517 HUSBAND AND WIFE, I., 11. 518 HOUSEBREAKING. See Breaking and Entering. 1. At the trial of an indictment on the Pub. Sts. c. 203, § 36, alleging the possession by the defendant of certain tools and imple- ments named, designed and intended to be used by him for burglarious purposes, evidence that other tools and implements than those named in the indictment, designed for the purposes alleged, were found, with those named, in the possession of the defendant, at the time and place named in the indictment, is admissible. Commonwealth v. Day, 138 Mass. 186 (1884). 2. At the trial of an indictment on the Pub. Sts. c. 203, § 36, alleging the possession by the defendant of certain tools and implements named, designed and intended to be used by him for burglarious purposes, evidence that the defendant had twice used the same or similar tools and implements in the commis- sion of burglaries, once ten days and once about five months before the time of the of- fence alleged in the indictment, is admissible. Commonwealth v. Day, 138 Mass. 186 (1884). 3. An indictment, on the Pub. Sts. c. 210, § 8, alleged that the defendant, at a time and place named, a dwelling-house described, in the night-time, " feloniously did attempt to break and enter, with intent the goods and chattels in said building, then and there being found, then and there feloniously to steal, take, and carry away, and in such attempt did then and there break and open three windows in said dwelling-house;" but that the defendant " was then and there inter- cepted and prevented in the execution of said offence." Held, that the indictment was sufficient. Commonwealth v. Shedd, 140 Mass. 451 (1886). HOUSE OP CORRECTION. See County Commissioner. HOUSE OF ILL-FAME. See also Disorderly House ; Nuisance. 1. A complaint, alleging that the defendant kept " a certain common nuisance, to wit, a certain house of ill-fame," resorted to for the purpose of prostitution and lewdness, to the common nuisance of all citizens, charges an offence under Gen. Sts. c. 165, § 13, which prohibits keeping a house of ill-fame, and not under c. 87, §§ 6, 7, which defines common nuisances and prohibits their maintenance. Commomoealth v. Lavonsair, 132 Mass. 1 (1882). 2. A count for maintaining a house of ill- fame, under Pub. Sts. c. 101, §§ 6, 7, and a count for maintaining a disorderly house at common law, may be joined in one indictment; and it is not necessary to aver that the different counts are different descriptions of the same act. Commonwealth v. Ismahl, 134 Mass. 201 (1883). HUSBAND AND WIFE. I. Op their Marriage. II. Rights and Liabilities of Hus- band. III. Rights and Liabilities op Wife. IV. Ante-nuptial Agreements ; Mar- riage Settlements. V. Conveyances, Contracts, and Suits between Husband and Wipe. VI. Separation Deeds. VII. Actions by or against Husband and Wipe; Parties; Pleadings; Evidence. VIII. Criminal Proceedings. As witnesses, see Witness. Of their divorce, see Divorce. Rights of widows, see Dower ; Homestead ; Widow. Rights of wife under conveyance from hus- band as against his creditors, see Fraud, IV. ; Insolvency. Right of husband to remove his wife's body after death, see Burial. Right of wife to maintain action under St. 1879, c. 297, against one selling intoxicat- ing liquor to her husband, see Spirituous Liquors. Ratification of acts of husband and wife as agent for one another, see Agent, II. pi. 1, 2. Deed of wife, see Deed, I. pi. 2, 3; Home- stead, pi. 4. Issue of execution for money ordered paid by husband for wife's support under St. 1874, c. 205, see Execution, 1. See also Equity; Joint Tenants; Spe- cific Performance ; Trust; Will. I. Op their Marriage. See Marriage. II. Rights and Liabilities of Husband. 1. A husband may maintain an action for the loss of the consortium with his wife, sgainst a person who has criminal conversation with her, whether such conversation is with or without her consent, and although the act caused no actual loss of her service to him. Bigaouette v. Paulet, 134 Mass. 123 (1888). 2. St. of 1874, c. 184, § 1, providing that all work and labor performed by a married woman for others than her husband and chil- dren " shall, unless there is an express agree- ment on her part to the contrary, be presumed to be on her separate account," declares a conclusive presumption of law, sufficient to defeat a husband's claim for such services per- formed by his wife after the statute took effect, 519 HUSBAND AND WIFE, II, 520 although she began to work for the defendant before the passage of the statute, in the ab- sence of evidence of an express agreement under which he had acquired rights previously, or which would bring the case within the ex- ception of the statute. Williams v. Williams, 131 Mass. 533 (1881). 3. A husband is liable for legal services rendered to his wife in successfully defend- ing her against a complaint instituted by him charging her with being a common drunkard. Conant v. Burnham, 133 Mass. 503 (1882). _ But not for legal services rendered her in connection with the institution of a complaint against him for an assault and battery upon her, legal services in such a case cannot be deemed necessary, as the complaint can be made orally to the magistrate, who will reduce it to writing, issue a warrant, and himself in- vestigate the case. Conant v. Burnham, 133 Mass. 503 (1882). 4. If a husband and wife live apart by mutual consent, the wife receiving a sum not sufficient for her support, and agreeing that she will release her dower in his land, there- after support herself and make no claim upon him, he is not liable for necessaries furnished to her, she not having, after such arrangement between them, made any claim upon him for support, or offered to return to him. Alley V. Winn, 134 Mass. 77 (1883). 5. An action for the price of milk delivered to a wife against her husband's express re- quest, while she was living apart from him, cannot be maintained against the husband, in the absence of evidence that she was living apart from him under such circumstances as gave her implied authority to bind him by a contract for necessaries. Benjamin v. Dock- ham, 132 Mass. 181 (1882). 6. H. and M. were lawfully married in this Commonwealth, and lived together here as husband and wife for several years. They then entered into an agreement in writing, at her request, with a view that she might marry one P., by which the husband agreed to furnish evidence and allow the wife to pro- cure a divorce from him for adultery, and she agreed to pay him a sum of money when the divorce was obtained. A libel for divorce was signed and sworn to by her in this Common- wealth, and, on the same day and at the same place, he signed an acknowledgment of ser- vice of the libel and a consent to be defaulted, and procured an affidavit of a witness of evi- dence, fabricated by the husband, of adultery by him. These papers were presented to a court in Utah, and a decree of divorce was rendered thereon. The wife then informed the husband that she had obtained a divorce, and he left her house and they did not live to- gether afterwards. She then went through a form of marriage with P. , with whom she lived as his wife until her death ; and she and P. paid H. the sum of money agreed upon. While she was living with P., she made a •will, to which H. did not consent in writing. Held, that H. was entitled to claim a distrib- utive share in the estate of his wife. Hardy V. Smith, 136 Mass. 328 (1884), 7. If a husband executes to a third person a mortgage of land, " in trust " for his wife seciuriug a promissory note, signed by the hus- band, payable to such person, " at my decease, in tru.st for my wife," the consideration of the mortgage being the transfer to the husband of real and personal property inherited by the wife from her father, the note and mortgage are personal property, held on a simple trust for her, and, upon the death of the wife, in- testate, before her husband, who is appointed the administrator of her estate, he is entitled to the note and mortgage to be disposed of for the payment of her debts, or under the statute of distributions; and, on a bill in equity by the husband against the trustee and the chil- dren of the wife, to remove a cloud upon the plaintiff's title to the land, the trustee should assign all his interest in the same to him. Bartlett v. Barllett, 137 Mass. 156 (1884). 8. D. died in 1852, leaving a will, of which he appointed B. executor, and made B. and his wife residuary legatees of his estate. B. administered the estate, of which there was a residue. For one half of the amount of this residue, B. made a promissory note to his wife, which stated that it was " given for D.'s legacy." B., although able to do so, never paid the amount of her legacy to his wife, but retained it with her consent, and mingled it with his own property. B. died, leaving a will, by which he gave various bequests to his wife, but did not mention the note or legacy under D.'s will. Held, that B.'s wife could not maintain a bill in equity against the ex- ecutor of B.'s will to establish a trust in her favor for the amount of the legacy. Bridgman V. Bridgman, 138 Mass. 58 (1884). 9. A decree of the Probate Court, under the Pub. Sts. u. 147, § 33, that a wife is living separate and apart from her husband for jus- tifiable cause, is not competent evidence, in an action against the husband by a third person for the board of his wife and child, that the wife was living apart from her husband for justifiable cause, although the same cafise which was the basis of the decree continued during all the time such board was furnished. Barney v. Tourtellotte, 138 Mass. 106 (1884). 10. If a wife leaves her husband without justifiable cause, taking their minor child with her, and the husband is able and will- ing to support the child, and so informs the wife and a third person, with whom she places the child, the fact that the father makes no attempt to obtain the custody of the child does not of itself authorize the wife to pledge his credit for necessaries furnished to the child by such third jierson at the request of the wife. Baldvnn v. Foster, 138 Mass. 449 (1885). 11. A delivery by a wife to her husband of a check payble to the order of a third person does not necessarily constitute the husband the agent of the wife to receive the amount of the check. Hunt v. Poole, 139 Mass. 224 (1885). 12. It is no bar to a petition, under the Pub. Sts. c. 147, § 33, by a wife, that her husband be ordered to provide for her support, that, for a valuable consideration received and re- 521 HUSBAND AND WIFE, III. 622 tained by her, she has executed an instrument releasing him from all claim by her on him for support, and agreeing to indemnify him from any such claim. Silverman v. Silverman, 140 Mass. 560 (1886). 13. A conveyance of land in fee to a hus- band and wife, prior to the St. of 1885, c. 237, conveyed an estate by entireties, of which he had the right to make a lease good against the wife during coverture. Pray v. Stebbins, 141 Mass. 219 (1886). 14. A man and a woman were married in 1852. There was no ante-nuptial contract in regard to her property. She was possessed of a sum of money, and in 1856 bought certain .shares of stock in a bank. The certificate was taken in the name of her husband, but was kept by her, and in 1859 he gave her a paper, in which he stated that the certificate was purchased with her money, and promised to transfer it "to her heirs or executors." In 1864, the bank became a national bank, and in 1879, upon his written statement that the original certificate was lost or stolen, the hus- band received from the bank a new certificate, and gave a bond of indemnity against any claim on the old certificate. The old certifi- cate was retained by the wife, who did not know that the new certificate was issued until after her husband's death. The dividends on the stock were for a time collected for the wife by a third person, but subsequently they were collected by the husband, and used by him for his own purposes; and the wife never claimed any interest in these latter dividends. The bank always treated the husband as the owner of the stock. He died in 1883, his wife surviving him, leaving a will, by which he gave these shares of stock to their child. Held, that the husband had reduced the shares of stock to his possession. Held, also, that the husband, by giving the paper writing to the wife in 1859, did not make himself a trustee of the stock for her. Cummings v. Cummings, 143 Mass. 340(1887). III. Rights and Liabilities of Wife. 1. The power given to a married woman by St. 1857, c. 249, § 2, to convey, with the as- sent of her husband, any real or personal Eroperty which might thereafter come to her y " gift of any person except her husband," includes land conveyed to her by a third person for a pecuniary consideration. Chap- man V. Miller, 128 Mass. 269 (1880). 2. Gen. Sts. c. 85, §§ 1, 2, provide that if the loser of money at gaming does not sue for the same within three months, "any other person may sue for and recover treble the value thereof in an action of tort." St. 1871, c. 312, provides that " any married woman may sue and be sued in actions of tort in the same manner as if she were sole." Held, that a married woman may maintain an action to recover treble the amount of money lost by her husband at gaming, he not having sued for the same within three months. Read v. Stewart, 129 Mass. 407 (1880). 3. If a husband buys a chattel for his wife as her property at a certain price, part of which he agrees to pay by releasing a debt due him from the seller, and the balance of which his wife pays, receiving at the same time from the seller a bill of parcels stating a sale from the seller to her for the price agreed, the title to the chattel is in the wife ; and she may maintain an action of replevin for it. McCowanv. Donaldson, 128 Mass. 169 (1880). 4. If a married woman, owning separate property, permits her husband to use it in a business carried on by him, she is not "doing business on her separate account," within the meaning of St. 1862, c. 198, so as to make it necessary for her to file the certificate required by that statute, in order to exempt the prop- erty from liability for her husband's debts. Wheeler v. Raymond, 130 Mass. 247 (1881). 5. St. 1862, c. 198, making the husband of a married woman, who does business on her separate account, liable on her contracts, if no certificate is filed as therein required, does not apply to a husband domiciled in another State, whose wife does business on her separate ac- count in this Commonwealth. Hill v. Wright, 129 Mass. 296 (1880). 6. The rule of law which prohibits a pro- vision in a settlement in trust, under which the income is made payable to the settler for life, which will prevent an alienation by anti- cipation, so as to prevent creditors from reach- ing the income by a bill in equity under Gen. Sts. c. 113, § 2, cl. 11, applies to a married woman settling her separate property after marriage, where she has by law the right to make contracts as if sole. Pacific Bank v. Windram, 133 Mass. 175 (1882). 7. Evidence that a husband, who had the management of a parcel of land belonging to his wife, ordered materials for building a house on the land, and that the wife knew that the house was building, and occupied it when finished, will warrant a jury, in an ac- tion against her for the price of the materials, in finding that her husband acted as her agent. Arnold v. Spwr, 130 Mass. 347 (1881). 8. The recording, in the town clerk's office, of the certificate of a married woman doing business on her separate account, is not a compliance with the St. of 1862, c. 198, re- quiring the woman to "file " such certificate, if, after being recorded, the certificate is not kept in the clerk's office. Chapin v. Kingsbury, 135 Mass. 580 (1883). 9. A married woman, whose husband, by reason of domestic troubles between them, has removed from the house formerly occupied by them and owned by him, and taken up his abode elsewhere, she remaining in the house, cannot maintain an action against a subse- quent lessee or a grantee of the house, for acts of dominion exercised by them tending to disturb her occupation, no assault having been committed upon her, although the lease and conveyance are made for the sole purpose of dispossessing her; and an ante-nuptial agree- ment, by which her husband promised her the use of the house for one year after his death, provided he should then be the owner or oc- 623 HUSBAND AND WIFE, IV., V. 524 cupant, does not enlarge' her rights. Goodnow V. Shattuck, 136 Mass. 223 (1884). 10. The statement, in a certificate filed hj a married woman, of her intention to do busi- ness as "a retail liquor dealer and saloon keeper " at a place named, is a sufficient de- scription of her business to protect the prop- erty employed ther'ein from attachment for her husband's debts, although she does to some extent a wholesale as well as a retail liquor business. O'Neil t. Wolffsohn, 137 Mass. 134 (1884). 11. In an action of replevin by a married wo- man doing business on her separate account, against an officer who had attached, on a writ against her husband, property employed in said business, the bill of exceptions stated that there was evidence that, while the St. of 1862, c. 198, was in force, a certificate was "filed " by the plaintiff in the office of the town clerk, stating that she proposed to do business on her separate account, which was recorded by the town clerk on the same day, who certified the fact of such record on the certificate, and that the certificate remained on " file " in the town clerk's office for some time, when the town clerk delivered it to the plaintiff's hus- band. Held, that, by the fair construction of the bill of exceptions, the evidence tended to' show a delivery to the town clerk of the cer- tificate and an entry on it by him that it was recorded; and that a jury would not be justi- fied in finding that it had been filed, as re- quired by the statute. Chapin v. Kingsbury, 138 Mass. 194 (1884). ' 12. The St. of 1881, c. 64, applies only to certificates made by married woihen after its passage, and does not give validity to a certi- ficate made before the passage of the statute, which was improperly recorded instead of being filed. Chapin v. Kingsbury, 138 Mass. 194 (1884). 13. The provision of the St. of 1862, c. 198, § 2, that, unless a married woman, proposing to do business on her separate account, or her husband, files a certificate as therein provided, the husband shall be liable upon "all con- tracts lawfully made in the prosecution of such business," applies to a purchase made in the prosecution of a business carried on in this Commonwealth by a married woman domi- ciled here, although made by her in another State, where payment is to be made. Ridley V. Knox, 138 Mass. 83 (1884). IV. Ante-Nuptial Agreements ; Mar- riage Settlements. 1. In a marriage Settlement made in 1830 between A., B. his intended wife, and C. as trustee, A. covenanted that he would stand seised of one undivided third part of all the lands of which he was then seised and pos- sessed, " to the sole use and behoof of A. dur- ing his natural life; and after his marriage with B. and after his decease, to the sole use and behoof of B. during her natiiral life, for her jointure, and in lieu and satisfaction of her whole dower in'all the land and real estate of which A. is now seised or may at any time be seised during his coverture with B., and also in lieu and satisfaction of B.'s whole claim to the thirds of the personal estate of A, ■ and after the decease of B.,'to the use of D.' and E. (B. 's daughters by a former marriage) during their natural lives and the life of the survivor of them ; and after the decease of D. and'E, to the use of the heirs and assigns of A. forever," JfifeW, that the concluding words of the covenant, " to the use of the heirs and assigns of A. forever," were intended as words Of limitation, and not of purchase. Bowditch v. Jordan, 131 Mass. 321 (1881). 2. An ante-nuptial contract between A. and B. recited that A. had agreed to accept a cer- tain provision to be made for her by B. as a substitute for all the rights, claims, and inter- ests to which she might be'entitled in or to the real and personal estate of R. in the event of her becoming his widow. A sum was then stated, to be paid one half in six months and one half in twelve months after the death of B. A. covenanted that she accepted the pro- vision in lieu and in full satisfaction of all dower and homestead, and of all other riglits to which she might at any time thereafter be entitled in or to any land of B., and in full satisfaction of, and as a substitute for, any distributive share, part, or allowance to which .she would be entitled in or to the personal es- tate or property of B. in the event of her be- coming his widow; and that the instrument should be a bar, both in law or equity, to any claim A. might make to any part of the real or personal estate of A. except the provision made for her. B. died, and A. petitioned the Probate Court, under the Pub. Sts. c. 135, § 2, for an allowance from B.'s estate. The executor of B.'s will brought a bill in equity to restrain A. from prosecuting the petition. Before the hearing on the bill, A. received from the executor -the sum stated in the con- tract. Held, that the plaintiff in the bill in equity was entitled to a decree. Paine v. Hollister, 139 Mass. 144 (1885). For another case involving the construction of an ante-nuptial contract, see Dower, pl.;9. See also Chase v. Fitz, 132 Mass. 359. See also ante, III. pi. 9. V. Conveyances, Contracts, and Suits BETWEEN Husband and Wife. 1. A husband may make a gift of personal property to his wife, which, if not revoked by him, will, after his death, give her a valid title to the property against his heirs, if, with the intention on his part to give it to her, the property is actually delivered to and retained by her, and no rights of the creditors of the husband are impaired. Marshall Vf Jaquith, 134 Mass. 138 (1883). 2. A donatio causa mortis from husband to wife is valid. Marshall y.' Jaquith, 134 Mass. 138 (1883). 3'. A married woman cannot enforce a note held by her against her husband, either at law or in equity; and the fact Wiat it was made 525 HUSBAND AND WIFE, VI., VII., VIII. 526 originally to another person is immaterial. WUson V. Bryant, 134 Mass. 291 (1883). 4. If a married woman lends money out of her separate estate to a partnership, of which her husband is a member, and on the dissolu- tion of which it is agreed between the part- ners that the partner other than the husband shall take the assets of the firm, and pay all the liabilities and indemnify his partner against them, but no promise is made by the other partner to pay the debt to the wife, no trust is impressed upon the money so lent by her ; and she cannot maintain a bill in equity against the two partners for the payment of the same. Fowle v. Torrey, 185 Mass. 87 (1883). 5. An action may be maintained by a wo- man upon a promissory note given to her by her former husband, after she has obtained a divorce from him, in pursuance of a written agreement made before the divorce, and con- ditioned upon the divorce being decreed, and which was called to the attention of the court granting the divorce, by the terms of which agreement, which were carried out by each party, she was to convey her land to him and give a release of all her rights of dower and homestead, and he was to give her a sum of money and the note in suit, which were to be accepted instead of alimony. Chapin v. Chapin, 135 Mass. 393 (1883). 6. The release by a married woman of her right of dower in her husband's land is a good consideration for a promissory note, signed by him, payable to a third person, and given by him to her; and a divorce subsequently ob- tained by him from her, on account of her adultery, is not a failure of such consideration. Nichoh V. Nichols, 136 Mass. 256 (1884). 7. Whether a piano is an article necessary for the personal use of a wife, within the St. of 1879, c. 133, so as to be the subject of a valid gift to her from her husband, is a ques- tion of fact for the jury, having regard to the circumstances in life of the parties; and the mere fact that the husband, at the time of the gift, kept a saloon and a lodging-house for fishermen does not show, as matter of law, that it is not such an article. Hamilton v. Lane, 138 Mass. 358 (1885). 8. In 1871, a husband advanced, money to his wife for the benefit of her separate estate, and she, in consideration thereof, made a promissory note payable to A. or bearer, and executed to A., as security therefor, a mort- gage of a parcel of land. A. assigned the mortgage to the husband, and delivered the note to him. The husband afterwards, dur- ing the life of the wife, assigned the note and mortgage to B., who entered to foreclose the mortgage, and brought a writ of entry, against a person claiming under the wife,, to recover possession of the land. Held, that the writ could be maintained. Butler v. Ivesj 139 Mass. 202 (1885). 9. An action upon a declaration, containing a count for money lent and a count for money had and received, cannot be maintained, by the administrator of the estate of a wife, who survived her husband, against the adminis- trator of the husband's estate, for a sum of money which he received from his wife " a few months before his death, upon his prom- ise to return it, or a like sum, to her in a short time." Kneil v. Egleston, 140 Mass. 202 (1885). 10. Under the Pub. Sts. o. 147, § 2, a hus- band and wife cannot enter into a contract of partnership ; and she is not liable for the rent of a store hired by him in the name of himself and wife as partners. Bowker v. Bradford, 140 Mass. 521 (1886). 11. A wife is not entitled to prove, against the estate of her husband in insolvency, a claim for money lent by her to him from her separate estate, and used by him in his busi- ness, and for the amount of which she holds his promissory note; and the St. of 1884, c. 293, providing for the proof of equitable liabilities against insolvent estates, does not apply. Woodward v. Spurr, 141 Mass. 283 (1886). VI. Separation Deeds. See ante, II. pi. 4. Vn. Actions by or against Husband AND AVife; Parties; Pleadings; Evidence. 1. A husband and wife conveyed the wife's land, subject to a mortgage which the grantees assumed and agreed to pay. Held, that an action for breach of this agreement should have been brought in the names of both the husband and wife, and not in the name of the wife alone. Fenton v. Lord, 128 Mass. 466 (1880). But, the case having been fully tried on the merits, — Held, that the plaintiff should be allowed to amend by joining her husband, taking no costs since the trial. Fenton v. Lord, 12?, Mass. 466 (1880). 2. A declaration for the price of milk de- livered to the defendant, at his request, is supported by proof of a delivery to the de- fendant's wife, while living apart from him without means of support, by reason of his cruelty. Benjamin v. Dockhajn, 184 Mass. 418 (1883). 3. A husband and wife cannot be sued jointly on a contract made by her in the pros- ecution of a business carried on by her sepa- rately in this Commonwealth, no certificate having been filed by either as provided in the St. of 1862, c. 198; but each is severally liable. Ridley v. Knox, 138 Mass. 88 (1884). Vin. Criminal Proceedings. 1. A married woman may be convicted, upon , an indictment under Gten. Sts. c. 87, §§ 6, 7, of keeping and maintaining a com- mon nuisance, by proof of illegal sales by her of intoxicating liquors, in the absence of her husband, in the dwelling-house occupied by them and hired by him. Commonwealth v. Roberts, 132 Mass. 267 (1882). 527 INCUMBRANCE. 628 2. A married -woman may be convicted of keeping a disorderly bouse, if sbe acts of bar own free will and without coercion by ber busband. Commonwealth v. Hopkins, 133 Mass. 381 (1882). 3. The fact that, at the time of an unlaw- ful sale of intoxicating liquor by a married woman, ber husband was lying sick upon a bed in a room adjoining that in which the sale took place, the door between the rooms being open, does not raise a conclusive presumption of law that she was acting under his coer. cion. Commonwealth v. Gormley, 133 Mass 580 (1882). For a case involving the effect of a want of certain knowledge on the wife's part, at the time of the execution of a mortgage on her land, see Mortgage. For a case involving the right of creditors of a wife to attach in equity her interest in a policy on her husband's life, see Insur- ance, III. I. ICE. See Pond. IDLE PERSON. See Vagabond. IMPLEMENTS OF HOUSEBREAKING. See Housebreaking. IMPOUNDING. 1. The mere driving of cows off a person's land into the highway, and detaining them there until the owner comes and takes them away, and then demanding a sum of money as damages, is not, as matter of law, an im- pounding of the cows. Conners v. Loker, 134 Mass. 510 (1883). 2. A field-driver cannot at the same time distrain and impound cattle for both causes prescribed by Gen. Sts. c. 25, — for going at large in the highway \vithout a keeper, and for doing damage on private lands. Phillips v. Bristol, 131 Mass. 426 (1881). 3. If one cause of the impounding of cattle by a field-driver is the damage done by them to the land of A. , a notice by the field-driver to the owner of the cattle, describing them and stating that they were impounded " for being at large out of enclosure in the high- way, said cattle delivered to me in said high- way by the agent of A.," and that the damage to A., together with the fees of the field-driver and pound-keeper, amounted to a certain sum, is not a sufficient notice, under Gen. Sts. c. 25, § 29. Phillips V. Bristol, 131 Mass. 426 (1881). INCEST. 1. At the trial of an indictment for incest, the judge instructed the jury that carnal knowledge and penetration were necessary to be proved to convict the defendant. Held, that the defendant was not entitled to have the jury further instructed, that, if they could not find, on the testimony of the girl with whom the offence was alleged to have been committed, that the defendant had actual sexual intercourse with her, by penetration, they should acquit. Commonwealth v. Lynes, 142 Mass. 577 (1886). 2. At the trial of a man for incest, it ap- peared that the girl with whom the offence was alleged to have been committed was thir- teen years old. Medical experts, who exam- ined the girl six weeks after the time of the alleged offence, were permitted to testify to the abnormal condition of the girl's private parts at the time they examined her, and to the causes which would produce such condi- tion. Held, that the defendant showed no ground of exception. Commonwealth v. Lynes, 142 Mass. 577 (1886). INCOME. See Capital and Income ; Devise; Trust. IMPROVEMENTS. See Equity; Real Action. INCUMBRANCE. See Covenant; Deed; Equity. At the trial of an indictment for conveying incumbered real estate, without informing the grantee of the existence of the incum- brance, if there is evidence tending to show a loss of mind and memory on the part of the defendant, who was sixty-nine years old at the time of the conveyance, the refusal to allow him to testify that he met with a large loss of property just before the con- veyance affords him good ground of excep- tion. Commonwealth v. Brayman, 136 Mass. 438 (1884). 529 INDICTMENT AND COMPLAINT. 530 INDECENT EXPOSURE. See Lewdness. INDIAN. 1. The deed of an Indian proprietor of land in the district of Marshpee, made after the passage of St. 1834, c. 166, to a person not a proprietor, is void, and is not made valid by the admission of the grantee to proprietorship by St. 1842, o. 72, nor by the removal of all disabilities from Indians by St. 1869, o. 463; and the heirs of the grantor are not estopped, in a writ of entry, to set up title in the land against such deed. Pells v. Webquish, 129 Mass. 469 (1880). 2. An authenticated copy of a return, pur- porting to be an enumeration by the overseers of the proprietors of Marshpee, made nearly fifty years ago, under St. 1818, c. 105, which is taken from the files of the Governor and Council, is admissible in evidence in a writ of entry, to prove that a person, under whom the tenant claims, and whose name does not ap- pear on the return, was not a proprietor at the time the return was made, although the re- turn is signed by one only of the three over- seers. Pells V. Webquish, 129 Mass. 469 (1880). INDICTMENT AND COMPLAINT. See the titles of the various crimes and offences respectively. See also Autrefois Acquit; Carrier, IX.; Grand Jury; Jury; Practice; Record. 1. It is no defence to an indictment that the evidence shows that the defendant com- mitted a higher ofEence than that charged. Commonwealth y. Andrews, 132 Mass. 263 (1882). 2. The rule that, where the same ofEence is charged in different counts of an indictment, the whole indictment may be submitted to the jury, with instructions, if they find the de- fendant guilty upon any count, to return a general verdict of guilty, is not applicable in a case where one count of the indictment is bad, and the evidence applicable to such count is submitted to the jury with the rest,. against the objection of the defendant. Common- wealth v. Boston Sj- Maine Railroad, 133 Mass. 383 (1882). 3. If, at the trial of an indictment contain- ing two counts, the second of which is insuf- ficient, no evidence was admitted which was particularly applicable to the second count and not competent under the first count, and the defendant was committed upon the first count on competent evidence, and no error is shown affecting his trial upon that count, he is not prejudiced as to his trial upon that count by a refusal of the judge to quash the second count, and the conviction should stand Commonwealth \. Andrews, 132 Mass. 263 (1882). 4. The word " feloniously," used in an in- dictment, may be rejected as surplusage, when improperly introduced in connection with an allegation of acts not amounting to a felony. Covimonwealth v. Philpot, 130 Mass. 59 (1880). 5. An indictment on St. 1875, c. 211, al- leging that the defendant "by force and in- timidation did seek to prevent one A. from continuing in the employment of " a, certain corporation, follows the words of the statute, and sufficiently sets out the offence intended to be charged; and allegations in the indict- ment, that the defendant "did unlawfully and wilfully intimidate, and did seek to in- timidate "A., may be rejected as surplusage. Commonwealth v. Dyer, 128 Mass 70 (1880). 6. A count for maintaining a house of ill- fame, under Pub. Sts. c. 101, §§ 6, 7, and a count for maintaining a disorderly house at common law, may be joined in one indict- ment; and it is not necessary to aver that the different counts are different descriptions of the same act. Commonwealth v. Ismahl, 134 Mass. 201 (1883). 7. Where an indictment contains sevei-al counts charging the same offence by different descriptions, it is not necessary to allege that they are different descriptions of the same act; and St. 1861, c. 181, does not apply. Commonwealth v. Andrews, 182 Mass. 263 (1882). See, on this point. Arson, pi. 3. 8. It is no misjoinder to charge in the same indictment, either in one or in several counts, one person with breaking and entering a building and stealing therein, and another person with receiving the goods stolen. Com- monwealth V. Darling, 129 Mass. 112 (1880). 9. Under St. 1864, c. 250, § 2, it is only where defects in an indictment are formal, and apparent on the face of the indictment, that objections must be taken before the juiy has been sworn. Commonwealth v. Boston §• Maine Railroad, 133 Mass. 383 (1882). As to what are formal defects, see Acces- sory, pi. 1. 10. St. 1864, c. 250, § 2, providing that any objection to an indictment, for any formal de- fect apparent on its face, shall be taken by demurrer or motion to quash, assigning spe- cifically the objections relied on, before the jury are sworn, does not apply to an indict- ment consisting of a single count, which duly charges an offence against the defendant, but contains a defective allegation of an aggrava- tion of the offence. Commonwealth v. Ken- nedy, 131 Mass. 584 (1881). li. A complaint to a trial justice by "A. W. T." alleged that the defendant, " on the twenty-fifth day of May," committed a cer- tain offence; was dated " this twenty-fifth day of June;" and was signed by " A. W. K., complainant." The jurat was dated "this twenty-fifth day of May." The warrant issued by the trial justice directed the officer to arrest the defendant, to answer " on the foregoing complaint of A. W. K., this day made on oath before me;" and was dated "this twenty-fifth day o£ May." The return of the officer stated that he arrested the de- 531 INFANT. 532 fendant " on June 1st." The record further showed that a hearing was had on the com- plaint before the magistrate on June 3, and the defendant was adjudged guilty and sen- tenced. Held, that the errors in the com- plaint were merely clerical ones, which could not mislead or prejudice the defendant, and furnished no ground for an arrest of judg- ment. Commonwealth v. McMahon, 133 Mass. 394 (1882). 12. A complaint, which does not set forth the facts necessary to constitute an offence, except by reference to a statute, the year of which is wrongly given, will not support a conviction ; and the defect is not a formal one which, not having been objected to before the trial justice, cannot be availed of in the Supe- rior Court. Commonwealth v. Washhurn, 128 Mass. 421 (1880). 13. Where it is plain that the apparent date of the jurat affixed to a complaint is a clerical error, for the correction of which the record furnishes ample evidence, such evidence may be appealed to for the correction of the error. Commonwealth v. Intoxicating Liquors, 128 Mass. 72 (1880). 14. Since, by Pub. Sts. c. 155, § 7, no one but a justice of the peace can be a trial jus- tice, and, by § 9, a justice of the peace duly appointed trial justice ceases to be such if his commission as justice of the peace expires be- fore his commission as trial justice, a signa- ture to the jurat annexed to a complaint, and to a warrant, as trial justice, involves a signa- ture as justice of the peace, and no separate designation of the inferior office is neces- sary. Commonwealth v. Mosher, 134 Mass. 226 (1883). 15. It seems, that a motion to quash an in- dictment, on the grounds that no offence is fully, plainly, and formally set up therein, and that all the facts which constitute the offence are not properly set fOrth, does not assign " specifically the objections relied on," within the Pub. Sts. c. 214, § 25. Commonwealth v. Murray, 135 Mass. 530 (1883). 16. If an indictment in several counts al- leges that they are different descriptions of the same act, and, at the trial, the evidence supports some of the counts and does not sup- port the others, a general verdict of guilty may be rendered. Commonwealth v. Flagg, 135 Mass. 545 (1883). 17. An indictment in two counts alleged in the first count that F.. N. and S., at a time and place named, " with force and arms, did fraudulently obtain from one A. , by means of a game, device, sleight of hand, and trick, by the use of cards and other implements and in- struments, a more particular description of which said game, device, sleight of hand, trick, implements, instruments, and cards is to said jurors unknown, one written check and order for the payment of money to the amount and of the value of two hundred and fifty dol- lars, one piece of paper of the value of two hundred and fifty dollars, of the property and moneys of said A. " The second count charged, in the same words used in the first count, that F. obtained from said A. certain checks and pieces of paper described in the same manner with those named in the first count; and that N. and S. were accessories thereto both before and after the fact. F. alone was tried, and was convicted on the first count and acquitted on the second count, Held, on a writ of error that the indictment was sufficient in form; and that the judgment was not erroneous. Filz- gerald v. Commonwealth, 135 Mass. 266 (1883). 18. A motion, on an appeal in the Superior Court, to quash a complaint to a justice of the peace for a formal defect only, is filed too late. Commonwealth v. Peto, 136 Mass. 155 (1883). 19. A formal defect in a complaint cannot be availed of for the first time in the Superior Court on appeal. Commonwealth v. Flannigan, 137 Mass. 560 (1884) ; Commonwealth v. Keefe, 143 Mass. 467 (1887). 20. If some of several counts in an indict- ment ai-e good, the indictment will not he quashed for defects in the other counts. Commonwealth v. Pratt, 137 Mass. 98 (1884). 21. A motion to quash an indictment, " be- cause the same is uncertain, indefinite, and insufficient," does not assign " specifically the objections relied on," within the Pub. Sts. c. 214, § 25. Commonwealth v. Jenks, 138 Mass. 484 (1885). 22. Under the Pub. Sts. c. 214, § 25, a for- mal defect apparent on the face of a complaint cannot be taken for the first time in the Su- perior Court, on appeal. Commonwealth v. Lagorio, 141 Mass. 81 (1886). 23.' An omission in a complaint,' under the Pub. Sts. c. 80, § 21, for permitting a nui- sance to remain on premises after the time prescribed by the board of health of the town for its removal, to allege that the complainant is au agent of the board of health, he being in fact such agent, is at most a formal defect, which can be availed of only by a motion to quash. Commonwealth v. Alden, 143 Mass. 113 (1886). 24. A complaint on the St. of 1885, o. 342, § 1, alleged that the defendant, at a time and place named, kept a certain room in a build- ing described, and occupied " said room with apparatus, books, betting-tickets, and other devices, for the purpose of • registering bets and of buying and selling pools upon the re- sults of trials and contests of skill, speed, and endurance of men, beasts, birds, and machines, and upon the results of certain games of ball to be played between contesting base-ball players." Held, that the complaint was not bad for duplicity. Commonwealth v. Moody, 143 Mass. 177 (1887). INFANT. See Gaming; Guardian; Parent; Parties, pi. 22. 1. If an infant becomes a partner with an- other, puts a sum of money into the business under an agreement to share in the profits, and does work for the partnership, he cannot afterwards, by rescinding the contract, recover 533 INFORMATION. 5B4 of his partner the money so paid, or for the labor performed, in the absence of an express promise to pay him therefor. Page v. Morse, 128 Mass. 99 (1880). 2. A person, against whom and his partner proceedings in insolvency have been insti- tuted, cannot avoid ithera on the ground that his partner was an infant when the proceed- ings were begun, if the infant was then repre- sented by a guardian ad litem, and has ratified the proceedings after coming of age. Win- chester V. Thayer, 129 Mass. 129 (1880). 3. A minor, who, knowing his minority and not disclosing it, borrows money from a per- son whom he knew believed him to be of full age, ind gives a promissory note and a mort- gage of land to secure it, is not estopped from avoiding the note and mortgage after coming of age; and continuing in possession of the land and refusing to pay the note are not suf- ficient to prove ratification. Baker v. Stone, 136 Mass. 405 (1884). 4. The right of action of a minor to re- cover, under the Gen. Sts. c. 85, § 1, the amount of money lost by him by gaming, expires at the end of three months from the time of the loss. French v. Marshall, 136 Mass. 564 (1884). 5. If a minor fails, without covin or collu- sion, to prosecute an action, within the time limited, to recover, under the Gen. Sts. c. 85, § 1, the amount of money lost by him by gaming, his guardian may in his own name maintain an action to recover treble the amount so lost, without regard to the ques- tion whether he knew of the loss within three months of its date. French v. Marshall, 136 Mass. 564 (1884). 6. An action, begun while the defendant was a minor, upon a contract, not for neces- saries, made by him, in answer to which he sets up his infancy at the time the contract was made, cannot be maintained upon evi- dence of ratification after he became of age. Freeman v. Nichols, 138 Mass. 313 (1885). 7. A minor signed an instrument in writing, acknowledging the receipt of a vehicle from H. for the use of which he agreed to pay $50 per month, and, when the payments amounted to $675, with interest, the vehicle was to be- come his property. The vehicle was delivered to him, on payment of $175, and he used it in his business. About a month after the agree- ment was signed, the minor offered to return the vehicle to H., and demanded back the money he had paid. H. refused to receive it; and the minor brought an action against him to recover the money he had paid, but con- tinued to use the vehicle in his business for about two weeks after the date of his writ, when H. took possession of it. Held, that the action could be maintained ; and that the de- fendant was not entitled to recoup for the use of the vehicle while in the possession of the minor. McCarthy v. Henderson, 138 Mass. 310 (1885). 8. Under the Pub. Sts. c. 162, an infant is not liable to arrest for debt upon a civil pro- cess. Cassier's case, 139 Mass. 458 (1885). 9. Although an infant is exempt from ar- rest for debt, either upon execution or mesne process, he cannot maintain an action for an illegal arrest and false imprisonment against the person aiding the officer in making the arrest, if the arrest was made upon a valid writ; and the fact that the infant notified the defendant of his infancy at the time of the arrest is immaterial. Cassier v. Fales, 139 Mass. 461 (1885). 10. A person who takes from an almshouse a minor, whose father is an inmate of a sol- diers' home, and whose mother has been com- mitted to a reformatory institution, who has a guardian, and who will inherit property upon the death of his father, may maintain an action against the minor, after his father's death, for necessaries furnished to him upon the credit of his expectations of property. Trainer V. Trumbull, 141 Mass. 527 (1886). 11. An assignee in insolvency cannot main- tain a bill in equity to relieve the real estate of the insolvent from the incumbrance of a mortgage thereon, executed by the insolvent when a minor, and not ratified or disaffirmed by him after coming of age. Mansjield v. Gordon, 144 Mass. 168 (1887). INFORMATION. See Attorney General; Corporation; Equity; Quo Warranto. 1. An information in equity, in the name of the Attorney General, lies to enforce the stipulation in a bond for a deed of land given by the Commonwealth, that a passageway of a certain width in the rear of the premises is to be kept open and maintained by the abut- ters in common, although the Commonwealth reserves to itself the right to enter upon the premises by its agents, and, at the expense of the party in fault, to remove or alter, in con- formity with the stipulations in the deed, any building, or portion thereof, which may be erected on the premises in a manner or to a use contrary to the stipulations. Attorney General v. Williams, 140 Mass. 329 (1885). 2. An information cannot be maintained, in the name of the Attorney General, at the relation of a private individual, to restrain a corporation from digging up the surface of the highway in front of his premises for the pur- pose of laying gas pipes, in the absence of evidence that a real and substantial injury exists or is threatened, and that the muni- cipal authorities have refused relief, upon ap- plication to them, under the Pub. Sts. c. 106, § 77. Attorney General v. Consumers' Gas Co., 142 Mass. 417 (1886). 3. An information, in the name of the Attorney General, which is not brought ex officio, but at the relation of an individual, for the protection of his private interests against the acts of a corporation, cannot be maintained for the purpose of restraining the corporation from the further use of its cor- porate powers, and from usurping public fran- chises to which it is not entitled; Attorney 535 INSANITY. 636 General v. Consumers^ Gas Co., 142 Mass. 417 (1886). 4. Money was contributed for the erection of a soldiers' monument in a town, and a com- mittee was appointed to have charge of the fund, and to erect a monument when the fund should be sufficient therefor. B., who was the treasurer of the committee, deposited the money in a savings bank in his name as "treasurer of monument association." Af- terwards he drew from the bank a part of the sum deposited, and appropriated it to his own use. He died subsequently; his will was duly proved, and an executor thereof ap- pointed, who gave bond and due notice of his appointment. Upon B.'s death, C. was ap- pointed treasurer of the committee; and, more than two years after B.'s executor gave bond, C. demanded of him payment of the sum misappropiiated, which demand was refused. Held, on an information in equity by the At- torney General, at the relation of the commit- tee, that, if the funds could be considered as given to a public charity, the proceeding, so far as it concerned the amount appropriated by B., was barred as to B.'s executor by the Pub. Sts. 0. 136, § 9, limiting suits against executors to two years after the time of giving bond; and that it could not be maintained against the heirs at law of B., or the town. Held, also, that, as all parties agreed, the plaintiff might take a decree that the fund in the bank be paid to the committee or to C, to be held for the purposes for which the money was contributed. A tlomey General v. Brigham, 142 Mass. 248 (1886). INJUNCTION. See Equity, VI. INNKEEPER AND INNHOLDER. See Spirituous Liquors. Under the Pub. Sts. c. 102, §§ 12, 16, an innholder is, in the absence of an express con- tract to the contrary, liable for a loss by theft of the property of his guest, although the guest knowingly fails to comply with a reason- able regulation of the inn, if the loss is not attributable to the non-compliance with such regulation. Burbank v. Chapin, 140 Mass. 123 (1885). See also Deehan y. Johnson, 141 Mass. 23. INSANITY; INSANE PERSON. See Guardian; Pauper. 1. A lunatic is civilly liable for an injury caused by the defective condition of a place, not in the exclusive occupancy and control of a tenant, upon real estate of which he is the owner, and of which his gaardian has the care and management. Morain v. Devlin 132 Mass. 87 (1882). 2. At the trial of a writ of entry by a judg- ment creditor (claiming under the levy of an execution) of a person to whom the demanded premises were devised by his father, who some time after the will was executed, con- veyed the premises by deed to the tenant, the demandant may show that the grantor was insane at the time he made the deed, and that he died without being restored to sanity, al- though no entry has been made, or any other act done to avoid the deed. Valpey v. Rea 130 Mass. 384 (1881). 3. If an insane person is received into an asylum, at the request of another, and on an express contract in writing by third persons to pay his board and other expenses there, no promise can be implied on the part of such in- sane person to pay anything; evidence that credit was given to him by the officers of the asylum is inadmissible; and an action against him by the asylum cannot be maintained. And it is immaterial that it was orally under- stood between the persons signing the contract and the proprietors of the asylum that the board and supplies were to be furnished on the credit of the insane person, and that the lia- bility of the former was to be collateral only to the liability of the insane person, and that the guardian of the insane person subsequently agreed to pay the debt out of his ward's estate, and in part paid it. Massachusetts General Hospital y. Fairbanks, 129 Mass. 78 (1880); Same v. Same, 132 Mass. 414 (1882). 4. The St. of 1862, c. 223, §§ 10, 11, pro- viding for the expenses of the support of lunatics in State lunatic hospitals, does not apply to the case of a sane person acquitted of homicide by reason of insanity and commit- ted to such a hospital, under the St. of 1873, c. 227. Oleason v. West Boylston, 136 Maas. 489 (1884). 5. At the hearing of a petition, under the Pub. Sts. c. 176, to compel an action to be brought to try an alleged title to a parcel of land, if one of the respondents is an insane person under guardianship, the presiding jus- tice may, in the exercise of his discretion, order a decree against such person, if he deems it " equitable and just ; " but such decree cannot be ordered as matter of law. Gurney v. Waldron, 137 Mass. 376 (1884). 6. On the issue whether a person was in- sane at the time of making a contract, evi- dence of his mental condition eight months afterwards was excluded. Held, that the party offering the evidence had no ground of exception. Wright v. Wright, 139 Mass. 177 (1885). 7. On the issue whether a person was insane on a certain day, the judge presiding at the trial is not bound to instruct the jury that, " in the absence of frenzy or raving madness, delu.sion is the true and legal test of insanity. An insane delusion consists in the belief of things as real which do not in fact exist, or which a rational person would not believe." Wright V. Wright, 139 Mass. 177 (1885). 537 INSOLVENT DEBTOR, I., II. 538 INSOLVEiTT DEBTOR AND INSOL- VENCY. I. Institution of Proceedings. II. Proop of Claims. III. Collateral Security of Creditor. IV. Assignment; Rights and Duties of Assignee. V. Dissolution and Preservation of Attachments; Continuation of Suits by Assignees. VI. Fraudulent Preferences. VII. Granting and Validity op Dis- charge. VIII. Effect of a Valid Discharge; New Promise. IX. Application to the Supreme Court. For analogous cases, see Assignment (for the benefit of creditors), II.; Bankrupt; Composition with Creditors. See also Frauds, Statute of; Pledge, pi. 4. I. Institution of Proceedings. 1. A conveyance by way of preference, made by an insolvent debtor, in contravention of the provisions of the insolvent law of the Common- wealth, while the United States bankrupt act of 1867 was in force, is a sufficient cause for instituting proceedings in insolvency against the debtor after the repeal of the bankrupt act. Lolhrop v. Highland Foundry Co., 128 Mass. 120 (1880). 2. A petition for a warrant to seize the estate of an insolvent debtor, under Gen. Sts. 0. 118, § 103, which alleges that he has made a mortgage of his personal property to secure the payment of a pre-existing debt to the mort- gagee, with intent to secure to the latter a preference, and to defraud his creditors, the debtor being at the time insolvent and having reasonable cause to believe himself insolvent, need not allege that the mortgagee knew or had reasonable cause to believe that the debtor was insolvent. Lolhrop v. Highland Foundry Co., 128 Mass. 120 (1880). • 3. Proceedings in insolvency were instituted against A. and B., copartners. B. was an in- fant. Held, that this fact afforded A. no ground upon which to avoid the proceedings, B. having been represented by a guardian ad litem, and having ratified the partnership and the proceedings, after coming of age. Win- chester V. Thayer, 129 Mass. 129 (1880). 4. Actual knowledge, by a debtor, of the filing of a petition in insolvency against him, is not sufficient to support an indictment against him, on Gen. Sts. c. 118, § 106, for secreting a portion of his estate, after "no- tice " of such filing. Commonwealth v. Mar- tin, 130 Mass, 465 (1831). 5. Whether a continuance of an action shall be granted, so as to enable the defendant to obtain and plead a certificate of discharge in insolvency, is within the discretion of the court in which the action is pending. Suitings V. Ginn, 131 Mass. 479 (1881). 6. St. 1875, c. 68, § 1, providing that, when any defendant in a civil action, who has dis- solved an attachment made therein, is ad- judged a bankrupt, the court may enter a special judgment, to enable the plaintifi to proceed against the sureties on the bond given to dissolve the attachment, does not apply to a defendant against whose estate a warrant in insolvency has been issued; and St. 1880, c. 246, § 8, amending § 1 of St. 1875, by in- serting after the word " bankrupt " the words " or against whose estate a warrant in insol- vency has already been or afterwards is issued," does not apply to a bond given be- fore the statute took effect, the condition of which is to pay the amount recovered " after any special judgment entered in accordance with " St. 1 875, c. 68, § 1. Lincoln v. Leshure, 132 Mass, 40 (1882j. 7. A creditor of an insolvent debtor, against whom involuntary proceedings in insolvency have been iustituted, cannot maintain a bill in equity to restrain the further prosecution of the proceedings, on account of the failure of the debtor to furnish to the messenger a schedule of his creditors before the choice of an assignee, and the consequent absence of notice to such creditors of the first meeting. Shepard v. Abbott, 137 Mass. 224 (1884). 8. A person who removes to and becomes an inhabitant of this Commonwealth, and owes debts contracted therein, is entitled to the benefit of the insolvent law, although the sole purpose of his change of domicil and of contracting debts here was to obtain the ben- efit of such law. McConnell v. Kelley, 138 Mass. 372 (1885). II. Proof op Claims. 1. A corporation made an assignment to trustees of all its property for the benefit of its creditors, which was executed by each of the creditors. The instrument provided that it should become inoperative in case insolvency proceedings should be instituted. Afterwards, in insolvency proceedings, the creditors at- tempted to prove their claims, no dividends or payments having been received by them under the assignment. Held, that they did not hold any property of the insolvent corporation in mortgage, pledge, or otherwise, as collateral security for their debts, within the meaning of Gen Sts, c. 118, § 27, and that therefore their claims were provable. Dickinson v. Mela- comet Bank, 130 Mass. 132 (1881). 2. The holder of a promissory note, by an arrangement with a solvent surety thereon, proved the note against the insolvent estate of another surety, and then assigned the note with his claim against the estate to the solvent surety, who paid the holder in full. Held, on a bill in equity, that this amounted to pay- ment of the note, and that the Court of Insol- vency rightly ordered the proof to be expunged, and the surety to prove only one half of the claim, although he would not receive more than half of what he had paid for the note, if allowed to prove to the full amount. New 539 INSOLVENT DEBTOR, II. 540 Bedford Savings Institution v. Hathaway, 134 Mass. 69 (1883). 3. The owner of a parcel of land mortgaged it, subsequently conveyed his equity of re- demption, and several years afterwards went into insolvency. The mortgagee sold the land under a power of sale contained in his mort- gage, without obtaining any order of the in- solvency court, and applied the proceeds in part satisfaction of his debt. Held, that he was entitled to prove the balance of his claim against the estate of the insolvent; and that Gen. Sts. c. 118, § 27, making to the general provision for proof of debts an exception where a creditor holds a mortgage on the debtor's estate, and regulating the proceed- ings in such case by special provision, did not apply. Wilson v. Bryant, 134 Mass. 291 (1883). 4. A., owning land subject to a mortgage, conveyed his equity to B., who agreed with A. to assume and pay the mortgage. On the mortgage becoming due, neither A. nor B. paid the same. The mortgagee subsequently indorsed the note secured by the mortgage in blank, without recourse, and delivered it to the wife of A., who paid for it out of her separate estate, and the mortgagee at the same time assigned the mortgage to her. B. afterwards became insolvent. Held, that A. could not prove, against B.'s estate in insolvency, a claim for the amount remaining unpaid on the mortgage. Wilson v. Bryant, 134 Mass. 291 (1883). 5. If an attachment is dissolved under the Pub. Sts. c. 157, § 46, by the debtor going into insolvency, and the attaching officer re- fuses to deliver up the goods on demand by the assignee in insolvency, the creditor is not entitled to prove, under § 139, as a claim against the estate, the expenses subsequently incurred by the officer in keeping the goods. Russell Paper Co. v. Smith, 135 Mass. 588 (1883). 6. A bank discounted a draft of a firm, consisting of A., B., and C; and, as a con- dition of making the discount, required secu- rity to be given for the whole debt of the firm to it, including previous advances as well as the draft. A. and B. accordingly trans- ferred to the bank promissory notes of the firm owned by them respectively, given for advances made by them to the firm, and pay- able on demand. The firm and the individual members of it became insolvent. The draft had been paid before the insolvency proceed- ings were begun, but some of the previous advances had not been. Held, that the bank could prove the notes against the estate of the firm in insolvency, after having already proved for the whole amount of the unpaid advances. Miller'' s River National Bank v. Jefferson, 138 Mass. Ill (1884). 7. A claim against the estate in insolvency of the collector of taxes of a town, for taxes collected and unaccounted for by him, is one entitled to priority in the order for a dividend, as a " debt due to " the town, under the Pub. Sts. c. 157, § 104, cl. 1. Bent v. Hubbardston, 138 Mass. 99 (1884). 8. Under the Pub. Sts. c. 157, §§ 35, 36, no appeal lies to the Superior Court from a de- cision of the Court of Insolvency, expunging a claim proved against au insolvent estate. Woodward v. Spurr, 138 Mass. 592 (1885). 9. A. and B. each held promissory notes signed by C. and indorsed by D. for C.'s ac- commodation. In pursuance of an arrange- ment agreed to by all the parties, C. executed to D. mortgages of real estate, conditioned to save D. harmless from all loss by reason of his signing or indorsing any notes for or on account of C. C. went into insolvency, and D., although not ininsolvenoy, became in f»ct insolvent before the proceedings in insolvency were begun by C. A. offered the notes held by him for proof at the first meeting of the creditors of C, and they were allowed in full, against the objection of unsecured creditors; and A. voted on the proof and controlled the election of the assignee. B. did not offer his notes for proof, but petitioned the Court of Insolvency to have the property conveyed by the mortgages sold, and the proceeds of the sale applied to the payment of his notes; and that he might be admitted as a creditor for the balance of his debt. All parties consented that the petition might be granted. The mortgaged premises were sold pursuant to a decree of the court, and the proceeds of the sale were ordered to be applied in part pay- ment of B.'s notes, and he was admitted to prove for the balance of his debt. A. there- upon filed a bill in equity under the Pub. Sts. c. 157, § 15, praying that the decree of the Court of Insolvency might be set aside, and that part of the proceeds of said sale might be ordered to be paid to A. ; or, if he was not entitled to such part, that it might be paid over to the assignee for the benefit of the creditors generally. Held, that the decree of the Court of Insolvency should be so modified that A. and B. should share in said proceeds proportionately to the amount of the notes held by each; and that each should prove against the general assets for the residue of the notes. Franklin County National Bank v. Greenjield National Bank, 138 Mass. 515(1885). 10. One who lends money after publ cation of notice of the filing of a petition in insol- vency against the borrower, but before the issuing of the warrant, is not entitled to prove his claim against the estate. Spurr v. Dean, 139 Mass. 84 (1885). 11. Under the Pub. Sts. c. 157, §§ 35, 36, no appeal lies to the Superior Court from a de- cision of the Court of Insolvency, expunging a claim proved against an insolvent estate; but the remedy is by a bill in equity, under the Pub. Sts. c. 157, § 15. Spurr v. Dean, 139 Mass. 84 (1885). 12. An assignee in insolvency cannot main- tain a bill in equity to restrain certain credi- tors of the insolvent from proving their claims against his estate in the Court of Insolvency, when, although the number of creditors is large, their right to prove their claims de- pends upon the same question of law, and the claims are controlled by one person. Fellows V. Spaulding, 141 Mass. 89 (1886). 541 INSOLVENT DEBTOR, III., IV. 542 13. A wife is not entitled to prove, against the estate of her husband in insolvency, a claim for money lent by her to him from her separate estate, and used by hira in his busi- ness, and for the amount of which she holds his promissory note ; and the St. of 1884, c. 293, providing for the proof of equitable liabili- ties against insolvent estates, does not apply. Woodward v. Spurr, 141 Mass. 283 (1886). 14. A holder of special stock of a corpora- tion, which is illegally issued, may prove against the estate of the corporation in insol- vency the amount paid by him for the stock, deducting any dividends received, although he did not rescind the contract before the in- solvency. Reed v. Boston Machine Co., 141 Mass. 454 (1886). 15. A list of claims disallowed at a meeting of the creditors of an insolvent debtor, made and certified by the register of insolvency, is a sufficient record of the disallowance to en- able a creditor, whose claim is contained in the list, to appeal from the decision disallow- ing it. Curley v. Squire, 141 Mass. 509 (1886). 16. A second mortgagee of land, who re- ceives from the first mortgagee the surplus proceeds of a sale of the land made under a power in the first mortgage, which are not sufficient to satisfy his debt, is entitled to prove the balance of his claim against the estate in insolvency of the mortgagor, al- though the sale of the land is made after the first meeting of creditors. Washburn v. Tisdale, 143 Mass. 376 (1887). 17. A ward, after coming of age, is not en- titled to prove, against the estate in insol- vency of his guardian, a claim for the property which came into the hands of the guardian, until the latter has settled his account in the Probate Court, or until a judgment has been obtained upon his bond. Murray v. Wood, 144 Mass. 195 (1887). m. Collateral Security of CreditoiI. 1. A creditor of an insolvent debtor, who has a mortgage of real estate of the debtor as security for his claim, and who joins with the assignee in insolvency in making sale of the property, without the order of the judge of insolvency, cannot be allowed, under Gen. Sts. c. 118, § 27, to prove the residue of his claim, after applying the proceeds of the sale. Smith V. Warner, 133 Mass. 71 (1882). 2. A creditor, who levies an execution, issued upon a judgment obtained by him against his debtor, on land of the debtor, which is set off to him, and seisin and pos- session thereof are received by him in full satisfaction of his judgment, is not entitled afterwards, if the debtor becomes insolvent, to tender a deed of release of the land to the assignee in insolvency, and be admitted as a creditorfortheamountof the judgment, under Gen. Sts. 0. 118, § 27, although the land, at the time of the levy, stood in the name of a third person. Wareham Savings Bank v. Vaughan, 133 Mass. 534 (1882). 3. If a creditor of an insolvent debtor, who holds security which comes within the terms of the Pub. Sts. c. 157, § 28, inadvertently and by mistake, either of law or fact, proves his whole debt against the insolvent estate without disclosing his security, and, before he has derived any advantage or the other cred- itors have suffered any detriment from his act, takes proper measures to waive his proof and to pursue his rights as a secured creditor according to the statute, he does not waive his security, and the unsecured creditors do not acquire an equitable right to it which can be enforced by the assignee of the estate. Nichols V. SmUh, 143 Mass. 455 (1887). IV. Assignment; Eights and Ddties op Assignee. 1. A. held by indorsement notes made by B., but did not hold a mortgage which had been given to secure these notes and other amounts due from B. A. proved his claim against B.'s estate in insolvency. The as- signee offered for sale the property covered by the mortgage aforesaid, representing the in- cumbrance to include A.'s notes. The prop- erty sold for a nominal sum only. No dividend was paid. A creditor contended that the as- signee should be charged with the amount of A.'s notes. Held, that, the assignee having acted in good faith, and being powerless to prevent A. from proving his claim, and the estate not having been injuriously affected by such proof, and no unfair advantage having been reaped by the holders of the security, the assignee was not chargeable as claimed, he neither having actually nor constructively received the amount. Viles v. Harris, 130 Mass. 300 (1881). 2. Under Gen. Sts. c. 118, § 47, an assign- ment in insolvency, made by the judge to the assignee, is conclusive evidence of the author- ity of the latter to sue; and, in a suit by him, it is not open to the adverse party to contest the regularity and validity of the proceedings in insolvency; nor is the assignment invali- dated, nor the right to sue defeated, by the fact that the assignment has not been re- corded, as directed by statute. Howes v. Burt, 130 Mass. 368 (1881). 3. A mortgagee of after-acquired propei-ty, who takes possession of it of his own motion, before proceedings in insolvency are instituted against the mortgagor, has a valid lien upon it as against the assignees in insolvency of the mortgagor, although the mortgagor is insol- vent at the time possession was taken, and the mortgagee knows it. Chase v. Denny, 130 Mass. 566 (1881). 4. An action may be brought in the name of an insolvent for the benefit of one who has purchased a chose in action from the assignee in insolvency. Mayhem v. Pentecost, 129 Mass. 332 (1880) ; or in the name of the insolvent and a person to whom jointly with him the contract on which the action is brought was made. Williams v. Fowle, 132 Mass. 385 (1882). Compare also Beed v. Paul, 131 Mass. 129 (1881). 543 INSOLVENT DEBTOR, IV. 544 5. National bank stock held by A. as trustee for B. will not pass to A.'s assignee in insolvency, A. having assigned his certifi- cate to B. , but no record of the transfer having been made on the books of the bank in ac- cordance with its by-law. Sibley v. Quinsiga- mond Bank, 133 Mass. 515 (1882). As to the right of a creditor to hold, as against an assignee in insolvency, money re- covered upon a trustee process in another State, see Conflict of Laws, pi. 14. 6. The right to use trade-marks, in con- nection with a manufacturing business, which are not personal in their character, but des- ignate merely the place or establishment at which the goods are manufactured, passes to the assignee in insolvency of the owner, under Gen. Sts. c. 118, § 44. Warren v. Warren Thread Co., 134 Mass. 247 (1883). 7. The Court of Insolvency may order the assignee of an insolvent estate to pay out of the assets a reasonable sum for the use of leasehold property, by the messenger and as- signee, for the storage, sale, and delivery of goods of the insolvent estate, until the lease is disclaimed by the assignee in the manner provided in the Pub. Sts. c. 157, §26. Abhotl V. Stearns, 139 Mass. 168 (1885). 8. A. shipped a quantity of goods to B., and drew two drafts on him, each for one half of the amount, in favor of a bank, which discounted the drafts, though no bill of lading was attached thereto. B. , instead of accept- ing the drafts on presentation, remitted the amount in money to A. The same mail which brought the remittance to A. brought notice of the protest of the drafts for non- acceptance, and of disaster to certain property of A. A. thereupon suspended payment, and deposited the money received from B. in the hands of C, "for the benefit of whom it might concern. " Before procuring the drafts to be discounted, A. received directions from B. not to draw upon him, but this was not known to the bank until some time after the drafts were discounted. B. was notified, be- fore he remitted the money to A., that A. had drawn upon him for the amount of the consignment. Held, on a bill of intei'pleader by C, that the assignee in insolvency of A., and not the bank, was entitled to the money deposited with C. Whitneyy. Eliot National Bank, 137 Mass. 351 (1884). 9. If a bill in equity is brought against A. and B., and A. becomes insolvent, and his assignee in insolvency is admitted to prosecute the suit, under the Pub. Sts. c. 157, § 47, such assignee is not entitled to a personal de- cree against B., or to have a conveyance of land held by B. declared void. Squire v. Lin- coln, 137 Mass. 399 (1884). 10. The plaintiff in a suit in equity, under the St. of 1875, c. 235, for the collection of a debt out of property alleged to have been fraudulently conveyed to a third person by the debtor, who has been adjudged insolvent, does not, by filing his hill, acquire a lien on the property, within the meaning of the Pub. Sts. c. 157, § 47; and the assignee in insol- vency may, if he chooses, intervene in the suit for the purpose of having it dismissed, hut if the assignee, after notice of the suit, does not intervene, the fact that the defendant has been adjudged an insolvent is not a bar to the bill. Powers v. Raymond, 137 Mass. 483 (1884). 11. If a wife releases dower in her hus- band's land, at his request, in consideration of an oral agreement by him to convey to her other land, and he neglects to do so, and be- comes insolvent, she cannot maintain a bill in equity against his assignees in insolvency to compel such conveyance, although he was sol- vent at the time he made the agreement, and the land which he agreed to convey was no more than a fair equivalent for the value of the dower released by her. Nor can the bill be maintained to compel the assignees to make reimbursement to her, for the value of the dower, out of her husband's estate. Win- chester V. Holmes, 138 Mass. 540 (188.5). 12. Land to which an insolvent holds the legal title, upon an implied trust in favor of another, does not pass to the assignee as " property of the debtor which might have been taken on execution," within the mean- ing of the Pub. Sts. c. 157, § 46, although no declaration of trust has been recorded. Low V. Welch, 139 Mass. 33 (1885). 13. The right which an insolvent debtor has in a policy of insurance on his life, pay- able to him in case he survives a certain day, which day is after the first publication of no- tice, passes to his assignee, under the Pub. Sts. c. 157, § 46. Bassett v. Parsons, 140 Mass. 169 (1885). 14. If A., a citizen of this Commonwealth, with knowledge that his debtor residing here has stopped payment, and anticipating that proceedings in insolvency will be begun against the debtor, makes an assignment of his claim to a citizen of another State, without consid- eration, and the latter, before proceedings in insolvency are begun against the debtor, brings an action upon the claim in said State, and at- taches property of the debtor there, this court will, on a bill in equity, by the assignee in insolvency of the debtor, restrain A. from prosecuting the action to judgment, if A. has control of such action. Cunningham ■v. Butler, 142 Mass. 47 (1886). 15. An assignment of property, executed in another State, by a debtor domiciled there, for the benefit of his creditors, which is valid by the law of that State, but is invalid by the law of this Commonwealth, because not exe- cuted or assented to by the creditors, will not be upheld in this Commonwealth, as against attaching creditors of the assignor constitut- ing a partnership, although some of such creditors are domiciled in the State where the assignment was executed, and where the firm has a place of business, and some in an- other State, the others being domiciled and the firm having its usual place of business here. Faulkner v. Hyman, 142 Mass. 53 (1886). 16. An assignment for value, without the consent of the debtor, of a part of a debt due under an existing contract between the debtor 545 INSOLVENT DEBTOR, V., VI. 546 and the assignor, may be enforced by a bill in equity by the assignee against the debtor and the assignee in insolvency of the assignor, although the debtor is a municipal corpora- tion, if the debtor in its answer admits that the debt is due, and asks that the rights of the different claimants of the fund be deter- mined by the court. James v. Newton, 142 Mass. 366 (1886). 17. At the trial of an action by the assignee of an insolf ent debtor, to recover the value of property mortgaged by the debtor to the de- fendant, the plaintiff is not entitled to offer the testimony of witnesses " that the giving of a mortgage, such as the mortgage in ques- tion, would not be in the usual and ordinary course of such business." Buffum v. Jones, 144 Mass. 29 (1887). 18. An assignee in insolvency cannot main- tain a bill in equity to relieve the real estate of the insolvent from the incumbrance of a mortgage thereon, executed by the insolvent when a minor, and not ratified or disaffirmed by him after coming of age. Mans/ield v. Gorrlon, 144 Mass. 168 (1887). 19. Letters patent of the United States, owned by an insolvent debtor, pass to the as- signee in insolvency of his estate by an assign- ment of the estate under the Pub. Sts. c. 157, § 46 ; and the assignee may maintain a bill in equity against the insolvent debtor to compel him to assign such letters patent. Barton v. White, 144 Mass. 281 (1887). V. Dissolution and Preservation of At- tachments ; Continuation of Suits BY Assignees. 1. Although an assignment in insolvency relates back to the date of the first publica- tion of notice of the issuing of the warrant, and has effect as of that time, yet the extent of its operation depends on the law in force when the assignment is made. An assign- ment in insolvency, therefore, made since St. 1880, c. 216, § 7, took effect, does not dissolve an attachment of the debtor's property made more than four months before, although the first publication of notice of the issuing of the wan-ant was published before the enactment of the statute, and, but for its enactment, would, under Gen. Sts. c. 118, § 44, have dissolved the attachment, irrespective of the length of time during which it had been in force. O'Neil V. Harrington, 129 Mass. 591 (1880) ; SuUings v. Ginn, 131 Mass. 479 (1881). 2. Under Gen. Sts. c. 118, § 45, providing that the judge, before whom proceedings in insolvency are pending, may order the lien created by an attachment of the property of an insolvent debtor to continue, upon applica- tion made by any person interested, " on or before the day of the third meeting of credit- ors," taken in connection with the provision of § 75, that the third meeting of the creditors is "to be held within six months from the time of the appointment of the assignee," the application must be made on or before the day provided by law for the holding of supplement. — 18 the third meeting, and cannot be made at an adjournment of that meeting. Nelson v. Winchester, 133 Mass. 435 (1882). 3. A. attached national bank stock as the property of B. The stock stood on the books of the bank in B.'s name, but B., in fact, held it in trust for C, to whom he had assigned the certificate. Of this assignment the bank had no notice. B. became insolvent, and it was ordered that the lien of the attachment should continue. Held, that this order did not affect C.'s right to compel the bank to transfer the stock to C. Sibley v. Quinsiga- mond Bank, 133 Mass. 515 (1882). 4. If the defendant in an action becomes insolvent, and the Court of Insolvency passes an order, under the Pub. Sts. c. 157, § 47, that the lien created by an attachment in the action shall continue, such order is not con- clusive upon the duty of the court in which the action is pending to admit the assignee to prosecute. Squire v. Lincoln, 137 Mass. 399 (1884). 5. The bringing of a bill in equity and the issuing of an injunction, under the power a court of equity has to compel or restrain con- veyances of property, or to reach and apply in payment of a debt the property, legal or equitable, of a debtor, do not constitute an attachment of property, within the Pub. Sts. c. 157, § 47, authorizing, in certain cases, the lien created by the attachment to continue where the attachment would otherwise be dis- solved by proceedings in insolvency. Squire V. Lincoln, 137 Mass. 399 (1884). VI. Fraudulent Preferences. 1. On the issue whether a mortgagee had reasonable cause to believe the mortgagor to be insolvent or in contemplation of insol- vency, within Gen. Sts. c. 118, §§ 89, 91, evi- dence that the mortgagee, before he took the mortgage, was himself indebted to other per- sons, who were pressing him for payment of their debts, and that he exhibited the mort- gage to them and offered it as collateral secu- rity for those debts, is inadmissible. Purin- ton V. Chamberlin, 131 Mass. 589 (1881). 2. A wife's release of dower in her hus- band's land, at his request and for his benefit, in consideration of an agreement by him to make a transfer to her of shares of stock in a corporation, which are no more than a fair equivalent for the value of the dower, he being solvent at the time of making such agreement, vests in her such an equitable title to the shares agreed to be transferred, that his as- signees in insolvency cannot, on a bill in equity, avoid a subsequent transfer of the shares to her, made by him when insolvent, under such circumstances that it would be in fraud of Gen. Sts. c. 118, § 91, if the property then belonged to him. Holmes \. Winchester, 133 Mass. 140 (1882). 3. A guardian, who had misappropriated money belonging to his ward, being insolvent, within six months before the filing of a peti- tion in insolvency against him, and with a 547 INSOLVENT DEBTOR, VI. 648 view to give a preference to his ■ward, de- posited his own money in a savings bank in his name as guardian of the ward. Held, that his assignee in insolvency could main- tain a bill in equity to recover the amount so deposited, although the ward was ignorant of the misappropriation and of the fact of the guardian's insolvency. Bush v. Moore, 133 Mass. 198 (1882). 4. If a wife releases dower in her husband's land, at his request, in consideration of an oral agreement by him to convey to her other land, which is no more than a fair equivalent for the value of her dower so released, he being solvent at the time of making such agreement, and if he subsequently, within six months of the commencement of proceed- ings in insolvency, conveys such land to her through a third person, at a time when he is insolvent and she has reasonable cause to be- lieve him insolvent, his assignees may avoid the conveyance, under the Gen. Sts. c. 118, § 89 or § 91. Holmes v. Winchester, 135 Mass. 299 (1883). 5. 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 reason- able cause to believe that the debtor believes himself to be insolvent, and that a payment of the debt by him is made in fraud of the laws relating to insolvency. Cozzens v. Holt, 136 Mass. 237 (1884). 6. If a debtor is insolvent before making payment of his debt, and there is no evidence of a subsequent change in his financial condi- tion, a jury will be warranted in finding that he was insolvent at the time of the payment. Cozzens v. Holt, 136 Mass. 237 (1884). 7. B. gave his promissory note to A. in ex- change for certain shares of stock in a cor- poration, and received from A. an agreement, by which A. agreed, if B. desired it, to pay the note at maturity and accept the shares of stock as payment. A. lent the note to a firm of which he was a member, and the firm pledged the note with other securities as col- lateral security for the note of the firm. The pledgee took a good title to the securities. Subsequently, the firm became insolvent, and B. furnished it with sufficient money to pay its note, and received from the pledgee the securities which had been pledged, together with his own note. B. also surrendered to A. the shares of stock mentioned in the agree- ment between them. Held, that the assignee in insolvency of the firm and of A. could not maintain an action against B., under the Pub. Sts. c. 157, §§ 96, 98, to recover the note given to A., or its value, although B. had reasonable cause to believe that A. and his firm were insolvent, when he received the note from the pledgee. King v. Nichols, 138 Mass. 18 (1884). 8. In an action, by the assignee in insol- vency of the estate of A., to recover the amount of certain promissory notes, alleged to have been transferred by A. to the defend- ant, in violation of the provisions of the in- solvent law, it appeared that, about two months before the proceedings in insolvency were begun, A. sold his business to a third person, and, of the amount received therefor transferred the greater part to the defendant' to whom A. was largely indebted. The plain- tiff introduced evidence tending to show that A. had been connected in business with D.- that this firm failed in the previous year, and compromised with its creditors, including the defendant, for forty cents on the dollar; that A. began business again, and continued it until he sold out as above stated; that the defend- ant examined into the assets and liabilities of A. soon after he so started in business again,- and ascertained his condition; and that A. was insolvent from the time of the failure of the firm of A. and D. until the proceedings in insolvency were begun against him. The defendant introduced evidence tending to show that A. was solvent when he began business again, and at the time of said transfer to the defendant; and that he had no reason to believe that A. was insolvent. The judge instructed the jury that the plaintiff must prove three things : first, that, at the time of the payment or transfer in question, A. was insolvent, or in contemplation of insolvency; secondly, that the payment or transfer in ques- tion was made with a view to give a prefer- ence to the defendant over other creditors; thirdly, that, at the time of the payment or transfer in question, the defendant had reason- able cause to believe that A. was then insol- vent, or in contemplation of insolvency ; and that, if those three propositions were estab- lished, then the verdict must be for the plain- tiff. The defendant then requested the judge to instruct the jury that the plaintiff must also satisfy them that the defendant had reasonable cause to believe that the transfer of the notes was made in fraud of the laws relating to insolvency. This instruction the judge gave, but with the further instruction, that, if they found affirmatively estabhshed the three propositions before stated, that would authorize the finding that the transfer was in fraud of the insolvent law. Held, that the defendant had no ground of exception. Abbott V. Shepard, W2. Mass. 17 (1886). 9. A., who was erecting a building under a contract in writing with B., became insolvent, and a majority of his creditors voted to ac- cept his offer to pay a certain sum on the dol- lar in full settlement of their claims. C, with full knowledge of these facts, lent him a sum of money to enable him to complete his con- tract with B. and to fulfil his agreement of compromise with his creditors, and took from him an assignment, under seal, of an equiva- lent sum due under the contract. A. expend- ed most of the money received from C. for the purpose for which it was borrowed. By reason of the refusal of certain creditors to accept the amount offered, A. filed a petition in insolvency, five days after the assignment was executed, and an assignee of his estate was appointed. Held, that the assignment by A. to C. was not made in fraud of the insol- vent law. James v. Newton, 142 Mass. 366 (1886). 549 INSOLVENT DEBTOR, VII., VIII. 550 10. An insolvent, shortly before the he- ginning of insolvency proceedings, conveyed chattels to another, in consideration of the grantee agreeing to pay certain mortages up- on the property; and afterwards the grantee, being then in possession of the property, ob- tained an assignment of one of the mortgages, and an indorsement of the note, then overdue. Held, that the assignee in insolvency of the grantor could maintain an action, under the Pub. Sts. a. 157, § 98, against the grantee, to recover the value of the property so conveyed, less the amount due on the mortgage. Wells V. White, 142 Mass. 518 (1886). VII. Granting and Validity of Discharge. 1. If a person gets a note discounted at a bank, and on the maturity of the note, having on deposit a sum insufficient to pay the note, gets another note discounted at the same bank and deposits the proceeds to his account, and then draws his check on the bank for the amount of the first note payable to the bank as holder, this is a payment of that note, within Gen. Sts. c. 118, § 87, which, if the other conditions mentioned in the statute ex- ist, will forfeit his right to a discharge in insol- vency. Phillips's case, 132 Mass. 233 (1882). 2. If a person, being insolvent, and knowing himself to be so, pays, within one year next preceding the filing of his petition in insol- vency, a debt at its maturity, in the usual course of business, this is a payment of a " pre-existing debt," within the Gen. Sts. c. 118, § 87, which forfeits his right to a dis- charge in insolvency. Fletcher, appellant, 136 Mass. 340 (1884). 3. Under the Pub. Sts. c. 157, § 93, pro- viding that a discharge shall not be granted, or valid, if the insolvent debtor, " being a merchant or tradesman, has not kept proper books of account," it is a question of fact in each case whether the debtor has kept such books as will enable a competent person ex- amining them to ascertain the true state of his affairs ; and it cannot be ruled, as matter of law, that the failure to keep a cash-book invalidates a discharge. Wilkins v. Jenkins, 136 Mass. 38 (1883). VIII. Effect OP a Valid Discharge; New Promise. 1. If a debtor, after obtaining a discharge in insolvency, performs work for his creditor, under an oral agreement that the value of the work shall be applied in payment of the old debt, he cannot maintain an action to recover compensation therefor. Gen. Sts. c. 105, § 3, providing that no oral promise to pay a debt, made after the debtor's discharge in insol- vency, shall be evidence of a new or continu- ing contract, whereby to deprive him of relying upon his discharge, if sued, has no application to such a case. Pierce v. Mann, 130 Mass. 14 (1880). 2. St. 1879, c. 245, § 4, making a certifi- cate of discharge in insolvency conclusive evidence of the fact and regularity of the discharge, unless aimuUed by the court which granted it, is constitutional, and is applicable to a certificate granted after its passage upon proceedings begun before. Kempton v. Saun- ders, 130 Mass. 236 (1881). And it is immaterial that the action in which the discharge is pleaded was begun be- fore the passage of the statute. Upham. v. Raymond, 132 Mass. 186 (1882). 3. Although a discharge in insolvency, when granted, takes effect, not from its date, but from the commencement of the proceed- ings in insolvency, the extent of its operation is to be determined by the law in force at the time it is granted, and not by the law in force at the time the proceedings in insolvency are begun. Batten v. Sisson, 133 Mass. 557 (1882). 4. A debtor while in bankruptcy wrote to his creditor as follows: " I shall pay you all I owe you with interest, but at this time I cannot. As soon as I can, I shall pay you. When I can, I shall pay up all my debts, apd yours shall be the second that I pay. To pay you now, I cannot spare a dollar from my business, but if you will wait, I think I can pay you some time." Held, that these state- ments amounted only to a conditional promise to pay when the debtor should be able; and, in the absence of evidence of his ability to pay, would not, under the Pub. Sts. c. 78, § 3, deprive the debtor of relying upon a dis- charge in bankruptcy, in bar of the recovery of a judgment upon the debt. Elwell v. Cum- ner, 136 Mass. 102 (1883). 5. A debtor while in bankruptcy wrote to his creditor as follows: "My lawyer says I must not pay any one a dollar until I get through bankruptcy, then I can pay if I want to do so. I shall pay you all and the interest, but you will have to give me time. This is all I can say now." Held, that this was not such evidence of a new or continuing contract, within the Pub. Sts. c. 78, § 3, as would de- prive the debtor of relying upon a discharge in bankruptcy, in bar of the recovery of a judgment upon the debt. Elwell v. Cumner, 136 Mass. 102 (1883). 6. A debtor, after his discharge in bank- ruptcy, wrote to his creditor, " I mean right; I will pay something on account; " and later, "I shall pay you something as soon as pos- sible." Held, in an action on the debt, that the letters did not take the debt out of the operation of the discharge in bankruptcy. Bigelow v. Norris, 139 Mass. 12 (1885). 7. A debtor, after his discharge in insol- vency, wrote to his. creditor expressing his desire to pay all his debts, and his hope and trust that he would be able to pay the debt of his creditor in the future, mentioning partial payments made, and regretting that he could not do more. Held, insufficient to pre- vent the operation of his discharge. Kenney V. Brown, 139 Mass. 345 (1885). 8. A debtor, after he had applied for the benefit of the bankrupt act, wrote to his cred- 551 INSURANCE^ I., II. 552 itor: " I will send you the first spare ' V ' or ' X ' I have. I am compelled to go through bankruptcy, as a single creditor held out against signing. I am so sorry I owed you. 1 will not long either, for I know a lone lady has nothing to lose." Held, in an action on the debt, that the letter did not take the debt out of the operation of a discharge in bank- ruptcy subsequently obtained. Bigelow v. Norris, 141 Mass. 14 (1886). 9. A debtor, after proceedings in insolvency had been begun, wrote to his creditor: " My last meeting of insolvency comes off the last of this month, when I intend to receive my discharge. I wish I could give you some money, as you ask, 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." Held, in an action on the debt, that the letter did not take the debt out of the operation of a discharge in in- solvency subsequently obtained. I>ennan,'v. GowW, 141 Mass. 16 (1886). For cases involving the effect of a discharge upon debts due residents of other States, see Conflict op Laws, pi. 13, 15. IX. Application to the Supreme Court. 1. The record of a Court of Insolvency, as made up or amended by direction of the judge, cannot be contradicted by parol evidence upon a petition to this court, under Gen. Sts. c. 118, § 16, to vacate the proceedings. Winchester V. Thayer, 129 Mass. 129 (1880). 2. A judge of the Court of Insolvency should not be joined as a defendant in a bill in equity, under Gen. Sts. c. 118, § 16, to vacate proceedings in insolvency. Winchester V. Thayer, 129 Mass. 129 (1880). 3. If the judge of the Court of Insolvency declines to entertain an application of the petitioning creditor to vacate proceedings in insolvency, because not presented at a regular meeting, and the application is withdrawn, without asking for an order of notice thereon, or giving opportunity to other creditors to come in and prosecute the proceedings, the refusal of the judge affords no ground for this court to vacate the proceedings, under Gen. Sts. c. 118, § 16. Winchester v. Thayer, 129 Mass. 129 (1880). 4. The supervisory jurisdiction of this court conferred by Gen. Sts. c 118, § 16, does not embrace a petition in the nature of an appeal by a creditor from the' decision of the Court of Insolvency granting a discharge to a debtor, although since St. 1879, c. 245, § 4, the creditor cannot impeach the validity of the discharge in an action at law. Kemp- ton V. Saunders, 132 Mass. 466 (1882). INSOLVENT ESTATES OF DECEASED PERSONS. See Executor, VII. INSPECTION LAWS, WEIGHTS AND MEASURES. For milk cases, see Milk. 1. In an action for the price of coal sold to the defendant, and for weighing coal for him at a fixed price per load, if the defence is that the coal was not weighed in either instance by a sworn weigher, as required by St. 1870, c. 205, the burden of proof is on the defend- ant to show a violation of the statute. God- dard v. Rawson, 130 Mass. 97 (1881). 2. Gen. Sts. c. 49, §§ 122-124, relating to the inspection and sale, in this Common- wealth, of lime imported from Maine^ regu- lating the mode of packing, size of casks, &o., are in violation of D. S. Const., Art. 1, §§ 8, 9, giving to Congress the power to regulate commerce, and providing that " no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another." Higgins v. Lime, 130 Mass. 1 (1880). INSURANCE AND INSURANCE COM- PANIES. I. Generally. II. Fire Insurance. (a) Making and Cancelling the Con- tract; What it Covers. (J) Insurable Interest. (c) Representations and Warranties. id) Change of Risk ; Illegal Use. (e) Alienation of Property; Assign- ment of Property. (/) Notice of Loss. Xg) Amount recoverable. (Ji) Actions on Policies; Evidence, etc. III. Life Insurance. IV. Accident Insurance. V. Marine Insurance. VI. Mutual Companies. VII. Foreign Companies. I. Generally. A loan made by an insurance company to one of its finance committee may be made in good faith and in the usual course of busi- ness, although it is in violation of the Pub. Sts. c. 119, § 47, and of a rule of the direc- tors. Bowditch V. New England Life Ins. Co., 141 Mass. 292 (1886). n. Fire Insurance. (a) Making and Cancelling the Contract ; What it Covers. 1. Evidence that the amount of the pre- mium on a policy of fire insurance was paid to the insurance company by the agent who 553 INSURANCE, II. 554 took the risk, although the agent received from the assured only part of the premium and retained the policy in his hands until the time of the loss, will warrant a finding, in an action against the company on the policy, that it was duly issued and deUvei-ed; all that con- cerns the defendant is, thafthe premium was paid to it with the consent and in hehalf of the insured. Wheeler v. Waterlown Ins. Co., 131 Mass. 1 (1881). • 2. A steamhoat, on which were goods in- sured agstinst " immediate loss by fire," came into collision with another steamboat. A fire caused by the collision at once broke out, and the vessel soon sank, with the goods, before they were touched by the fire. Held, that if the loss of the goods could have been avoided but for the intervention of the fire, the fire was the immediate cause of the loss, and an action on the policy could be maintained. New York Express Co. v. Traders' Ins. Co., 132 Mass. 377 (1882). 3. In actions against insurance companies upon policies of insurance against loss by fire, it appeared that, after insurance had been effected in several companies, the plaintiff made an addition to the building in which was the property insured, and that at the time of the loss a part of the property de- stroyed was in the addition ; that, before this was done, permission was obtained from all the companies except one, whereby the insur- ance was extended to the property contained in the addition after its completion. In the case of one company, permission was given to erect the addition, " all policies concurrent." It appeared that, at the time this permission was given, it was known to the agent who signed it that the other companies had given permission to erect the addition; and that, by the terms of the permission, the other policies attached to the property in the addition when completed. Held, that the property in the addition at the time of the loss was covered by all the policies. Butterworlh v. Western Assurance Co., 132 Mass. 489 (1882). 4. Insurance against fire was effected on goods contained in the chambers of A., in brick, stone, and iron building No. 117 F. Street. A. was the proprietor of a printing establishment, and occupied chambers in build- ings owned by four different persons, all of which fronted on B. Street. The entrance to the upper stories of one of them was at 117 F. Street, and the other three had entrances to their upper stories on B. Street. The one having its entrance on F. Street and the two others adjoining were built at the same time, and were known as the F. Buildings. There were party-walls between them. The fourth building was put up soon after, with distinct walls and with floors at a different level, and was known as the M. Building. Doors were cut through the walls of all the buildings, so that A.'s chambers were connected with each other, and the public entrance to all of them was at 117 F. Street, though they were ac- cessible by the staircases leading from B. Street. At the time of a loss by fire, some of the goods destroyed were in one of the F. Buildings, the entrance to the staircase of which was on B. Streets and other goods de- stroyed were in the M. Building. Held, that the former were covered by the insurance, and that the latter were not. Sampson v. Security Ins. Co., 133 Mass. 49 (1882). (b) Insurable Interest. An owner of land with buildings thereon conveyed the land to a city by a deed contain- ing the following clause: " The grantor ex- cepts and reserves to himself all of the build- ings and structures standing on the granted lands, with all machinery and fixtures; pro- vided, however, that the same shall be re- moved from the granted premises by the grantor, at his sole expense, before " a day named, " and if not so removed, the grantor forfeits all right thereto, and the same shall thenceforth be the absolute property of said city." The buildings were insured against loss by fire by the grantor, after the date of the deed, and were burned before the day limited by the deed for their removal. Held, that the insured was the owner of the build- ings at the time of the loss. Washington Mills Manuf. Co. v. Weymouth Ins. Co., 135 Mass. 503 (1888). (c) Representations and Warranties. 1. A policy of insurance against fire con- tained the following provisions : " If the prop- erty be sold or transferred, or upon the pass- ing or entry of a decree of foreclosure, or if any change takes place in title or possession, or if the interest of the assured, whether as owner, trustee, consignee, factor, agent, mort- gagee, lessee, or otherwise, be not truly stated in' the policy, the policy is void." " If the interest of the assured be any other than the entire, uncondititional, and sole ownership of the property, for the use and benefit of the assured, it must be so represented to the com- pany, and so expressed in the written part of this policy, otherwise the policy shall be void." The assured at the time the policy was issued was the owner in fee of the prop- erty insured, but had mortgaged it, and also leased it for a term of years. The policy con- tained no statement of these incumbrances. Held, that the policy was not thereby avoided. Dollivery. St. Joseph Ins. Co., 128 Mass. 315 (1880). 2. If, according to the terms of a policy of insurance, the representations in the appli- cation are to be regarded as warranties on the part of the assured; it is necessary, under St. 1864, c. 196, if the insurer pro- poses to rely upon them as such, that they should be stated in the body of the policy. Wheeler v. Watertoum Ins. Co., 131 Mass. 1 (1881). 3. A mortgagor of buildings, the legal title to which stood in the name of his assignee in bankruptcy, and upon which there was a policy of insurance against loss by fire, pay- able to the mortgagee in case of loss, which provided that, "if there is other prior or sub- 555 INSURANCE, II. 656 sequent insurance without written consent of the company, this policy shall be null and void," without the knowledge or consent of his assignee or mortgagee, obtained from an- other company a policy on the same premises, in which he was represented to be the owner thereof and no mortgage was expressed, and which provided that, " if the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property, it must be so expressed in the policy, otherwise the policy shall be void." Held, in an action by the mortgagee for a loss under the first policy, that the policy obtained by the mortgagor was not " subsequent insur- ance," within the meaning of the policy in suit, and did not avoid it; and that, even if it were to be regarded as coming within the stipulation of the policy in suit, it would not avoid it, by reason of invalidity, in failing to state the true interest of the mortgagor in the premises. Wheeler v. Watertown Ins. Co., 131 Mass. 1 (1881). 4. A fire insurance policy issued in mid- summer contained a statement that the build- ing insured was " used for the storage of ice." Held, that this was not a warranty that ice was then stored in the building, but descrip- tive only of the business ordinarily done there. Dolliver v. St. Joseph Ins. Co., 131 Mass. 39 (1881). 5. A description, in a policy of insurance, of the ownership of property as " his frame dwelling-house," by an assured whose only title thereto is under a quitclaim deed from a second mortgagee of the property, avoids the policy under a clause providing that, " if the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property for the laenefit of the assured, the policy shall be void." It is not important that the assured is actually in possession, his title being defeasible upon the payment of the mortgage debt, and the holder of the first mortgage having a superior title which can be defeated only by payment of the debt secured thereby. Southwick v. Atlantic Ins. Co., 133 Mass. 457 (1882). 6. The agent of an applicant for fire insur- ance stated what he believed to be the exist- ing insurance on the property. As a matter of fact, the company to which application was made had issued a prior policy, which was forgotten by all. Had it been remembered, the policy applied for would not have been issued. Held, that it was none the less valid, although it contained an express warranty that all the facts and circumstances have been truly stated in the application, and a condi- tion that, "if any material fact or circum- stance shall not have been fairly represented, ' ' the policy shall be null and void. Bridge- water Iron Co. V. Enterprise Ins. Co., 134 Mass. 433 (1883). 7. An owner of land with buildings there- on, upon which he had insurance against loss by fire, sold the land, retaining the ownership of the buildings, and obtained new insurance thereon in the same company. The assured at the time of effecting the new insurance said nothing about the change of title in the land; and the insurer was ignorant of it; but there was no fraud on the part of the assured. Held, that the policy was not avoided. Wash- ington Mills Manuf. Co. v. Weymouth Ins Co. 135 Mass. 503 (1883). 8. In an action on a policy of insurance against loss by fire, it appeared that the plain- tiff in his proof of loss described himself as owner, and that his title to the property in- sured was by virtue of an instrument in writ- ing by which he acknowledged to have received and hired the property of A., and for the use of the property and as "rent" for the same had paid A. a certain sum, and agreed to pay him the balance in equal monthly instalments, on payment of which the property was to be- come the plaintiif 's ' ' absolute property ; " that in case of failure to pay rent, A. had the right to take possession of the property, and the plaintiff agreed to return it. It further ap- peared that, at the time of executing this in- strument, the plaintiff gave his promissory note to A. for the balance due; and that, after the loss by fire, A. brought an action against this plaintiff to recover the amount then dne, but did not enter the writ in court. Held, that it could not be ruled, as matter of law, that the plaintiff was not the owner of the property. Hinckley v. Germania Ins. Co., 140 Mass. 38 (1885). Q. If a person, without any fraud or inten- tion to deceive, procures insurance in his name upon property belonging to a limited partnership, in which he is the general part- ner and another person is the special partner, without disclosing the fact that his name is used as the name of the partnership, and the insurer has no knowledge of the partnership, and supposes that it is dealing with such person as an individual, this will not avoid the policy. Clement v. British American As- surance Co., 141 Mass. 298 (1886). (d) Change of Bisk; Illegal Use. 1. A policy of insurance against loss by' fire, issued to a partnership upon its prop- erty, contained the condition that the policy should be void, if, without the written assent of the insurer, "the situation or circumstan- ces affecting the risk shall, by or with the advice, agency, or consent of the insured, be so altered as to cause an increase of such risk." One partner sold to his copartner, and took back a mortgage of, the seller's share of the partnership property. Held, in an action on the policy, in which both partners joined, that it could not be said, as matter of law, after a finding for the plain- tiffs, that there was a breach of the condition. Powers V. Guardian Ins. Co., 136 Mass. 108 (1883). 2. A dwelling-house is unoccupied, within the meaning of an insurance policy which pro- vides that the policy shall be void if the prem- ises become vacant or unoccupied, and so remain, without notice to and consent of the insurer, where the house, without such notice and assent, remains vacant for three months, 557 INSURANCE, II. 558 and is then let to a tenant, who, up to the time of the loss, has placed in the house im- plements for cleaning it, but has not other- wise occupied it. Litch v. North British & Mercantile Ins. Co., 136 Mass. 491 (1884). 3. If the owner of a bowling alley and pool table has a license to keep the same, under the Pub. Sts. c. 102, § 111, at the time a policy of insurance against loss by fire upon the property used in his business is issued to him, the fact that, after the expiration of the license during the term of the policy, he uses the property, without a renewal of the license, for a short time, if not contemplated at the time of taking out the policy, will not of it- self, and as matter of law, avoid the policy during the remainder of the term, and after the illegal use ceased, in the absence of evidence that the insurer was injuriously affected by such illegal use of the property after it had ceased. Hinckley v. Germania Ins. Co., 140 Mass. 38 (1885). 4. A policy of insurance, in the form pre- scribed by the Pub. Sts. c. 119, § 139, against loss by fire upon property used in keeping a bowling alley and pool table, provided that ' ' this policy shall be void .... if gunpowder or other articles subject to legal restriction shall be kept in quantities or manner dif- ferent from those allowed or prescribed by law." The assured had a licsnse, under the Pub. Sts. c. 102, § 111, at the time the policy was issued, which expired during the terra of the policy; and he then used the insured property for a short time, without obtaining a renewal of his license. Held, in an action on the policy, that the temporary illegal use of the property did not prevent the policy from reviving after such use had ceased. Hinckley v. Germania Ins. Co., 140 Mass. 38 (1885). 5. A local agent of an insurance company, with authority to receive premiums and issue policies, has no authority, as such, to waive the condition of a policy requiring the written or printed assent of the company to any change in the situation or circumstances af- fecting the risk. Kyte v. Commercial Union Assurance Co., 144 Mass. 43 (1887). (e) Alienation of Property ; Assignment of Policy. 1. A conveyance of insured premises by a husband, by warranty deed, to a person who, at the same time and as part of the same transaction, conveys the premises to the gran- tor's wife, avoids a policy of insurance con- taining a provision that it shall become void if the insured premises are " sold or conveyed in whole or in part," although the husband retains an interest in the land as tenant by the curtesy. Oakes v. Manufacturers' Ins. Co., 131 Mass. 164 (1881). 2. If a policy of insurance against fire, pay- able in case of loss to a mortgagee of the premises insured, provides that it shall become void if the property insured shall " be sold," a conveyance by the heirs of the assured, after his death, to the mortgagee, by a deed absolute in form and containing no mention of the mortgage and no declaration of trust in favor of the grantors, avoids the policy; and the fact that the grantee, when he took the deed, orally agreed to sell the estate in a few months and account to the grantors for the proceeds after paying his mortgage, does not affect the case. Dailey v. Westchester Ins. Co., 131 Mass. 173 (1881). 3. A policy of insurance against fire, upon personal property, containing the following provisions : " If the property be sold or trans- ferred, or upon the passing or entry of a de- cree of foreclosure, or upon a sale under a deed of trust, or any change take place in title or possession (except in case of succession by reason of the-death of the assured), whether by legal process or judicial decree or voluntary transfer or conveyance, or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in this policy, then and in every such case this policy shall be void." " If the interest of the as- sured be any other than the entire, uncon- ditional, and sole ownership of the property, for the use and benefit of the assured," the policy shall be void. After the policy was issued, the assured made a mortgage on the insured property, under which no possession had been taken by the mortgagee, and the sura secured by which was not due, at the time of a loss by fire. Held, that the policy was not thereby avoided. Judge v. Connecti- cut Ins. Co., 132 Mass. 521 (1882). 4. A. was insured against loss by fire on a house, by a policy of insurance payable in case of loss to B., who was in fact a mort- gagee of the premises insured. After an alienation of the premises by A., and after an entry by B. for breach of condition of his mortgage, so that the policy, by its terms, had become void, the insurance company, at the request of B., and without asking or receiving any consideration, made an indorsement on the policy, which, after reciting that B. had entered for breach of condition of his mort- gage, provided that the policy should attach and cover his interest as such; that the in- surance as to the interest of the mortgagee only therein should not be invalidated by any act or neglect of the mortgagor; and that, whenever the insurer should pay the mort- gagee any sum for loss under the policy, and should claim that, as to the mortgagor or owner, no liability existed, the insurer should be subrogated to the legal rights of the mort- gagee under all securities held as collateral to the mortgage debt. Held, that the mortgagee could not maintain an action against the in- surer for a loss occurring after the indorse- ment was made. Davis v. German American Ins. Co., 135 Mass. 251 (1883). 5. A sale by one partner to his copartner, and a mortgage back, of the seller's share of the partnership property, upon which there is a policy of insurance against loss by fire, issued to the partnership, are not a breach of a condition in the policy that it shall be void, if, without the written assent of the 559 INSURANCE, II. 660 insurer, "the said property shall be sold." Powers V. Guardian Ins. Co., 136 Mass. 108 (1883). 6. In an action for breach of an agreement to assign a policy of insurance upon a house sold by the defendant to the plaintiff, by reason of which the policy became void, the measure of damages (the plaintiff having pro- cured no new insurance) is the cost of insur- ance for the unexpired term of the policy, and not the amount of the injury resulting from the subsequent burning of the house. Dodd V. Jones, 137 Mass. 322 (1884). 7. A policy of insurance against loss by fire, issued to G., provided that " this policy is not assignable for purposes of collateral security; but for such purpose it is to be made payable in case of loss, etc., by indorsement on its face. In cases of actual sale and trans- fer of title, leave having been previously ob- tained, the form subjoined may be used, which must be executed at the time of said transfer." Then followed an assent, signed by an agent of the company, " that the in- terest of G. in the within policy .... be as- signed to A." This was in tui'n followed by an assignment by G of " all [G.'s] title and interest in this policy, and all advantages to be derived therefrom," to A. The assign- ment in fact was made as collateral security for a debt, which was also secured by a mort- gage of the insured property executed a few days after the policy was assigned. The agent who signed the assent had no authority to assent to an assignment by way of col- lateral security, and neither knew that this was such an assignment, nor gave A. any reason to suppose that he knew it. Held, that A. could not maintain an action upon the policy. Lynde v. Newark Ins. Co., 139 Mass. 57 (1885). 8. A provision in a contract of carriage, that the carrier incurring liability by reason of loss or damage to the goods sustained during transportation shall have the benefit of any insarance which may have been ef- fected upon the goods, is not within the clause in a policy of insurance on the goods, that "this insurance shall be void in case the policy or the interest insured thereby shall be sold, assigned, transferred, or pledged, with- out the consent in writing of the insurer." Jackson Co. v. Boylston Ins. Co., 139 Mass. 508 (1885). 9. If a policy of insurance is issued to "A., payable in case of loss to B., mortgagee," and is in the form prescribed by the Pub. Sts. 0. 119, § 139, containing the provision that, " if this policy shall be made payable to a mortgagee of the insured real estate, no act or default of any person other than such mortgagee, or his agents or those claiming under him, shall affect such mortgagee's right to recover in case of loss on such real estate," a conveyance of the insured property by A. to C, without the assent of the in- surer, although it may avoid the policy as to them, will not affect B.'s right to recover, after a loss. Eliot Savings Bank v. Commer- cial Assurance Co., 142 Mass. 143 (1888). 10. Before a policy of insurance against fire had been issued to A., the land on which the building insured was situated had been conveyed to B. for the non-payment of a tax assessed thereon, and B. had conveyed his title to A.'s wife. During the term of the policy, for the purpose of vesting the entire interest in A., the wife conveyed the land to C, and A. joined in the conveyance in release of his right as tenant by the curtesy. C. on the same day conveyed the land to A. Hdd, that there was no breach of a condition in the policy rendering it void if " the prop- erty shall be sold." Kyte v. Commercial Union Assurance Co., 144 Mass. 43 (1887). " (f ) Notice of TjOss. 1. The provision in a policy of insurance against fire, that a loss under it shall not be payable iintil the assured produces the cer- tificate of loss of a magistrate "not con- cerned in the loss as a creditor," means a magistrate who is not concerned in the loss by reason of having an interest in the property insured or in the policy as security for an obligation to him, and does not disqualify a magistrate from acting who is a general creditor of the assured. Dolliver v. Si. Joseph Ins. Co., 131 Mass. 39 (1881). 2. In an action against an insurance com- pany upon a policy of insurance against loss by fire, it appeared that proofs of loss were sent to the defendant in the same month in which the loss occurred, and no objection was made to their sufficiency; that during the same month the plaintiff and the agent of the defendant met and agreed upon ah ad- justment of the loss; that the defendant afterwards repudiated this adjustment, on the ground that the agent had no authority to make it, and wrote to the plaintiff refusing to pay " your claim at the maturity of the sixty days from the presentation of your formal proofs of loss," and offering to meet the plaintiff with a view " to explain our posi- tion and to have any explanation from yon." Held, that the defendant had waived the right to object at the trial that the proofs of IbSs were insufficient. Butlerworth v. Western As- surance Co., 132 Mass. 489 (1882). _ 3. If a limited partnership contains but one general partner, C, in whose name the busi- ness is carried on, it is no objection, in the, absence of fraud or deceit, to a proof of loss made to an insurer, that it states that the property insured belongs to C, and that no other person or party has any interest there- in. Clement v. British American Assurance Co., 141 Mass. 298 (1886). 4. A general statement of ownership by the assured in a policy of insurance against loss by fire, in the form prescribed by the Pub. Sts. c. 119, § 139, is a sufficient compliance with the requirement that, after a loss of the insured property, a statement in writing by the assured shall be rendered to the insurer, setting forth "the interest of the insured therein." Hinckley v. Germania Ins. Co., 140 Mass. 38 (1883). 661 INSURANCE, II. 562 5. A policy of insurance, in the form pre- scribed by tiie Pub. Sts. c. 119, § 139, against loss by fire upon certain premises, was issued to A., payable in case of loss to B., mort- gagee, and providing that the insurer, within sixty days after statement or proof of loss, should either pay the amount of its liability or replace the property. After the policy was issued, A- conveyed the premises to C. A loss occurred, and within a month afterwards B. delivered to the insurer a proof of loss, signed and sworn to by C. ; and, more than sixty days before bringing suit, B. delivered to the insurer another proof of loss, signed and sworn to by A. The insurer received and retained both of these proofs without objec- tion, and, though twice asked in writing to inform B. if it req[uired or wished for any further statement, made no reply. Held, in an action upon the policy, that the insurer had waived any defects in the proofs of loss, if any existed. Eliot Savings Bank v. Com- mercial Assurance Co., 142 Mass. 142 (1886). (g) Amount recoverable. 1. An owner of land with buildings thereon conveyed the land by a deed, which reserved to the grantor the ownership of the buildings, if removed from the land before a day named, and if not so removed they were to be for- feited to the grantee of the land. After the conveyance the grantor obtained insurance on the buildings against loss by fire; and they were destroyed by fire before the day limited by the deed for their removal. Held, in an action by him on the policy, that he was en- titled to recover the actual intrinsic cash value of the property destroyed, without regard to the fact that it was to be removed by a day named. Washington Mills Manuf. Co. v. Wey- mouth Ins. Co., 135 Mass. 503 (1883). 2. If property belonging to a limited part- nership, in which C. is the general partner and another person is the special partner, is insured in the name of C, which is the name used by the partnership, in an action upon the pohcy C. is entitled to recover the full amount of the loss, and not merely the value of his interest in the property. Clement v. British American Assurance Co., 141 Mass. 298 (1886). (h) Actions on Policies ; Evidence, etc. 1. The declaration in an action against an insurance company alleged that the defendant made to the plaintiff a policy of insurance, and set out its legal effect; that the defendant was " bound by the terms of said policy to pay the plaintiff a proportionate share as hereinafter set forth of said loss;" that at the time of the loss the plaintiff held certain other policies of insurance upon the prop- erty destroyed (naming the several companies which issued the policies), " amounting in the aggregate, including the policy issued by the defendant corporation," to a sum stated, " and the said insurance companies were liable to the plaintiff under said policies for such por- tion of the loss sustained as the sum insured by each of said companies bore to the whole amount insured by all of said companies there- on, and the defendant corporation was liable for and bound to pay the plaintiff its said pro- portionate share, to wit " (naming a sum equal to the whole amount insured by the defend- ant). Held, on demurrer, that the declara- tion was sufficient. Butterworth v. Western Assurance Co., 132 Mass. 489 (1882). 2. Under the provision in a policy of insur- ance against loss by fire, in the form pre- scribed by the Pub. Sts. c. 119, § 139, that, if any difference of opinion shall arise as to the amount of the loss, it is mutually agreed that the loss shall be referred to arbitrators to be chosen, whose decision shall be final, such agreement to refer the loss to arbitration is not a condition precedent to the right of the assured to bring an action upon the policy. Reed v. Washington Ins. Co., 138 Mass. 572 (1885). 3. If a policy of insurance on goods in tran- sit contains no clause specifically subrogating the insurer to the rights of the insured in case of a loss through the fault of a carrier, it is no defence to an action on the policy for a loss insured against, that the insured has, by a contract with the carrier, given him the benefit of any insurance effected, if there is no fraud or concealment on the part of the insured in effecting the insurance. Jackson Co. V. Boylston Ins. Co., 139 Mass. 508 (1885). 4. The parties to a policy of insurance, in the form prescribed by the Pub. Sts. c. 119, § 139, after a loss by fire, entered into an agreement to submit to referees the appraisal and estimate of the damage by fire to the in- sured property, which provided that the award should have no reference' to any other ques- tion or matter of difference, and should be " of binding effect only so far as regards the actual cash value of, or damage to, such property." Before payment of the amount awarded by the referees, the assured brought an action upon the policy. Held, that the action was properly brought upon the policy, and not upon the award. Soars v. Home Ins. Co., 140 Mass. 343 (1885). 5. A license was duly granted to A. and B., under the Pub. Sts. c. 102, § 111, to keep a billiard or pool table or a bowling alley, for hire. B. had then retired from the business; and A., during the term of the license, ob- tained insurance in his own name upon the property. Held, in an action by A. upon the policy, that the license was valid. Hinckley V. Germania Ins. Co., 140 Mass. 38 (1885). 6. An- action upon a policy of insurance, in the form prescribed by the Pub. Sts. c. 119, §139, against loss by fire, containing the pro- vision that, if any difference of opinion shall arise as to the amount of loss, it is mutually agreed that the loss shall be referred to arbi- trators to be chosen, whose decision shall be final, may be referred to an auditor, whose report is admissible in evidence, and has the same effect as in other cases. Clement v. British American Assurance Co., 141 Mass. 298 (1886). 663 INSURANCE, II. 564 7. The refusal of a person insured against loss by fire on a large stock of boots and shoes to separate, after injury by fire, the damaged portion from that undamaged, and to give to the insurer a detailed statement by cases of the amount of damage claimed on each item, does not defeat his right of action. Clement V. British American Assurance Co., 141 Mass. 298 (1886). 8. A policy of insurance, in the form pre- scribed by the Pub. Sts. c. 119, § 139, against loss by fire upon certain premises, was issued to "A., payable in case of loss to B., mort- gagee," and providing that the insurer, within sixty days after proof of loss, should either pay the amount of its liability or replace the property, or might, within fifteen days, after such statement, notify the insured of its in- tention to rebuild or repair the premises. A loss occurred, and, nine days afterwards, and after an agent of the insurer had examined the premises and appraised the loss, B., at the request of A., who was unable to do so, began to repair the premises. Immediate repairs were necessary in order to prevent further damage. The repairs were duly fin- ished, and were reasonable and proper for the protection of the property. The insurer never notified the insured of an intention to re- pair. Held, in an action by B. upon the policy, that his acts in making repairs di i not defeat his right to recover. Eliot Savings Bank v. Commercial Assurance Co., 142 Mass. 142 (1886). 9. A policy of insurance, in the form pre- scribed by the Pub. Sts. o. 119, § 139, against loss by fire upon certain premises, issued to "A., payable in case of loss to B., mortga- gee," provided that the insurer might elect, when it was not liable to the mortgagor or owner, either to pay to the mortgagee the loss, or to pay the full amount secured by the mortgage, and to receive an assignment of the mortgage and debt. A loss occurred, and B., at the request of A., who was unable to do so, made repairs upon the premises which were necessary for the protection of the prop- erty. The insurer denied its liability for the loss ; and B. brought an action upon the pol- icy. The insurer filed an answer, denying any liability on its part; and, seven months after the action was brought, made a tender to B. of the amount of the mortgage, princi- pal and interest, and requested an assignment of the mortgage and note, which B. declined to make. Held, that the tender was not made within a reasonable time, and was not suffi- cient in amount. Eliot Savings Bank v. Comr viercial Assurance Co., 142 Mass. 142 (1886). 10. If, in an action on a policy of insur- ance against loss by fire, brought by the in- sured in his own behalf, and in behalf of a mortgagee, it appears by the bill of exceptions that the case was tried as if the insured were the only person interested, and no ruling was requested as to any independent right of the mortgagee to recover, and the extent of his interest did not appear, an exception taken by the defendant to a ruling of the judge, in regard to the effect of a breach of a condition in the policy by the insured, will not be re- garded as immaterial, although by the terms of another provision in the policy such breach would not affect the right of a mortgagee to recover. Kyte v. Commercial Union Assurance Co., 144 Mass. 48 (1887). Evidence. 11. Under a declaration on a policy of in- surance against loss by fire, alleging that the plaintiff has performed the condition of the policy by giving proofs of loss, the plaintifi may show that the defendant has waived any informality in the proofs of loss furnished. Buiteneorth v. Western Assurance Co., 132 Mass. 489 (1882). 12. A policy of insurance against loss by fire was issued, for the term of one year, upon a building described as occupied principally for making certain articles named, and con- tained a written clause stating that, in consid- eration of a sum named, " extra premium, permission given to work nights for four months from date;" and also contained a printed condition that, if the property insured " be a manufacturing establishment, running in whole or in part over or extra time, or running at night without special agreement indor.sed on this policy," the policy should be void. In an action on the policy, it appeared that the building was destroyed by fire in the night-time, within the term ; and that, after the expiration of four months from the date of the policy, the plaintiff had run his manu- factory at night as well as by day. Held, that the action could not be maintained. Held, also, that oral evidence to show that similar establishments were usually run at night, that the plaintiff could not success- fully and profitably carry on his business without working at night, and that the de- fendant's agent, who fixed the premium, knew these facts, was incompetent. . Rear- don V. Faneuil Hall Ins. Co., 135 Mass. 121 (1883). 13. In an action upon a policy of insurance, conditioned to be void if the property insured should be ' ' sold or conveyed in whole or in part," oral evidence is admissible to prove that the plaintiff informed the defendant that there had been a conveyance of the property, at the same time that he informed the defend- ant of the existence of an outstanding mort- gage on the property made before the policy was issued; and that the defendant thereupon indorsed ou the policy its consent to pay the insurance in case of loss to the mortgagee named in the mortgage, and redelivered the policy to the plaintiff. Oakes v. Manuf. Ins. Co., 135 Mass. 248 (1883). 14. In an action upon a policy of insurance, conditioned to be void in case of other insur- ance, oral evidence that the insurance com- pany knew, when it delivered the policy, that there was other insurance outstanding, is in- admissible. Batchelder v. Queen Ins. Co., 135 Mass. 449 (1883). 15. In an action upon a policy of insurance against loss by fire on a junk-dealer's stock 565 INSURANCE, III. 566 of " rags " and " old metals," evidence is ad- missible to show that, by a usage of the trade, the terms quoted have acquired a broader signification than belongs to those words as commonly used. Mooney v. Howard Ins. Co., 138 Mass. 375 (1885). 16. In an action upon a policy of insurance against loss by fire on a building used as a manufactory, two witnesses, who were manu- facturers and familiar with the plaintiff's factory before the fire, were allowed to testify, iu behalf of the plaintiff, to the value of the property burned. Held, that the defendant had no ground of exception. Reed v. Wash- ington Ins. Co., 138 Mass. 572 (1885). 17. In an action upon a policy of insurance against loss by fire on certain goods, if the evidence is conflicting as to whether any ma- terial part of the insured goods was undam- aged, the defendant is not entitled to have the jury instructed that "the result of an auction sale of the goods, damaged and un- damaged, without separation, is not admissi- ble as evidence tending to show the amount of loss for which the insurers are liable." i Clement v. British American Assurance Co., 141 Mass. 298 (1886). IS. If a person makes, in behalf of a limited partnership of which he is a member, a valid contract of insurance, in an action upon the policy of insurance evidence is inadmissible to show that the members of the partnership have not complied with the requirements of the Pub. Sts. c. 75, §§ 4, 12, and have so transacted their business as to become liable as general partners to third persons. Clement V. British American Assurance Co., 141 Mass. 298 (1886). 19. In an action upon a policy of insurance against loss by fire on certain goods, upon the question of the value of damaged goods after the fire, evidence of what the goods brought at a sale by auction is competent; and, if the defendant puts in evidence tending to show that such a sale is not the proper course which a prudent man, desiring to make the most out of his damaged stock, would adopt, it is com- petent for the plaintiff to ask of an expert in such matters whether there is any other better mode of disposing of such goods. Clement v. British American Assurance Co., 141 Mass. 298 (1886). 20. In an action upon a policy of insurance against loss by fire on certain goods, upon the issue of the value of the goods before they were damaged, they being staple goods con- stantly manufactured and sold in the market, it is competent for the plaintiff to show what it cost to manufacture such goods. Clement V. British American Assurance Co., 141 Mass. 208 (1886). 21. In February, 1876, A. agreed for a cer- tain consideration to build a school-house for a school district in a town. The contract contained expressions indicating that the building when finished was to belong to the district. The location of the house was not then determined upon. In March, the dis- trict voted, at the solicitation of A., to erect the school-house on a certain lot, then owned by a third person; and A. promised to give the land to the district. In April he bought the land, taking a deed in his own name, and also made a dted conveying the land to the district, but did not deliver it. In May, A. received his pay in full for building the school- house. Until 1882 the district had possession of the school house, and until 1884 the town was in possession. During this time the building was insured by the district or by the town, and part of the time it was so insui-ed with the knowledge and with the advice of A. In 1884 A. took possession of the school- house, and conveyed it, through a third per- son, to his wife. Held, in an action by the wife on a policy of insurance issued to her husband after he took possession of the build- ing, and assigned to her, for loss of the build- ing by fire, that there was evidence that the building was personal property, and belonged to the town, although it was fixed to the land. Batcheller v. Commercial Assurance Co., 143 Mass. 495(1887). For a case involving the right to have cor- rected, in equity, certain indorsements on a policy, see Equity, V. pi. 1. For a case involving the meaning of the word " cuts " in a policy upon steel plates, &c., see Contract, IV. pl.-l. For a case involving the rights of a com- pany against a second mortgagee, after having paid a loss to the first mortgagee and taken an assignment of the mortgage, see Mort- gage. For other cases involving the authority of agents, see Agent, III. pi. 3, 5. For a case involving the liability of a mer- chant to consignors, he having procui-ed a general policy upon his and their goods, see Assumpsit, VIII. pi. 3. For a case involving the rights of a company which has paid a loss upon a building burned by the procurement of the insured, see As- sumpsit, VIII. pi. 4. For a case involving the effect of an agreement to arbitrate, see Arbitrament, pi. 4. III. Life Insurance. 1. The application for a life insurance policy is a part of the contract where it is so provided. If the representations in the application are in a material respect untrue, an action cannot be maintained on the policy; and oral testimony cannot be received to show either that the company when it issued the policy knew that the representations were un- true, or that the untrue representations were inserted in the application by the agent em- ployed by the company to solicit the insur- ance, without the knowledge of the applicant, who had stated orally the truth to tiie com- pany; and Sts. 1861, c. 170, and 1864, c. 114, do not apply. McCoy v. Metropolitan Ins. Co., 133 Mass. 82 (1882). 2. If a policy of life insurance contains the provision that the policy " shall not take ef- fect until the advance premium hereon shall 567 INSURANCE, III. 568 have been paid during the lifetime of the per- son whose life is hereby insured," a payment of such premium by a third person, ■without the knowledge of the assured, is of no effect, although made with his money ; and his ad- ministrator cannot ratify the act. Whiting v. Massachusetts Ins. Co., 129 Mass. 240 (1880). 3. By the terms of a policy of life insur- ance, the insurer promised to pay a certain sum to the assured on a day named, or to his children within sixty days after due notice and proof of loss. Aeld, that the promise to pay to the children took effect only in case the assured should die before the day named; that, before that time, the assured had a valu- able interest in the policy, which passed to his assignee in bankruptcy. Brigham v. Home Ins. Co., 131 Mass. 319 (1881). 4. If a policy is expressed to be for the benefit of the wife of the assured, her children have no interest in the policy during her life- time, and her interest may be attached in equity for her debt, either before or after the death of her husband ; and the children are not necessary parties to the suit. Norris v. Massachusetts Ins. Co., 131 Mass. 294 (1881); 2>oy V. Sargent, 132 Mass. 408 (1882). 5. If a policy insures the life of A. for the use of B. , A. cannot maintain an action against the insurer for the premiums paid by him on the policy, although the policy never took effect by reason of fraud on the part of the agents of the insurer. Trahandt v. Connecti- cut Ins. Co., 131 Mass. 167 (1881). 6. A policy of insurance, issued by an in- surance company chartered by a State other than this Commonwealth, recited that, in con- sideration of the payment of premiums by a wife, the life of her husband was insured, and the company agreed " with the said assured " to pay the sum insured, at its office in the State from which it obtained its charter, to the wife, " or assigns," within ninety days after notice and proof of the death of the hus- band. The policy further provided that, "in case the said assured should die before the decease of" her husband, "the amount of this insurance " should be payable to their children. The charter of the corporation is- suing the policy authorized a married woman to cause the life of her husband to be insured for her sole use, and provided, that, " in case of her surviving her husband," the amount of the insurance should be payable to her, and that, " in case of the death of the wife before the decease of her husband," the amount of the insurance might be made payable to her children. At the time the policy was issued, the general laws of the State contained sim- ilar provisions. The policy was in fact pro- cured by the husband, and all the premiums were paid by him. The husband and wife and their children were lost at sea, and there was no direct evidence as to which survived the other. The next of kin of the husband took out letters of administration, in this Commonwealth, on the estates of the husband and wife, and obtained the amount of the in- surance from the insurance company, receipt- ing for it as administrator of each estate,' "lor whom it may concern." The Probate Court declined to order him to account for the in- surance in the settlement of the wife's estate. Held, on an appeal to this court by the next of kin of the wife, that the interest of the wife in the policy was contingent on her sur- viving her husband ; that the burden of proof was on her next of kin to show that she sur- vived; and that the decree of the Probate Court must be affirmed. FuUet v. Linzee, 135 Mass. 468 (1883). 7. If a policy of insurance on the life of another is issued to a person having an in- surable interest in such life, an assignment of such policy to a person having no such in- surable interest does not render the assign- ment void. New York Mutual Ins. Co. v. Allen, 138 Mass. 24 (1884). 8. A policy of insurance, in consideration of the ■ payment of an annual premiums in- sured the life of A. in' a certain sum, "or after the due payment of premium fortwo or more years, if default shall be made in the payment of any subsequent premium, for as many tenth parts of the original sum insured as there shall have been complete annual * premiums paid." In the margin of the policy were words and figures denoting that one half the annual premium was payable in cash, and one half by note. Held, that these words and figures formed part of the policy, and that, if annual premiums were paid one half in cash and one half by note, " complete annual pre- miums " were paid. Pierce v. Charter Oak Ins. Co., 138 Mass. 151 (1884). 9. A policy of life insurance on the life of A. was payable on his death to his wife and children, and their assigns; and, if he- sur- vived a certain day, was payable to him. Held, that he had an assignable interest in the policy. Pierce v. Charter Oak Ins. Co.; 138 Mass. 151 (1884). 10. In an action at law on a policy of life in- surance payable at a day named in the policy, evidence is inadmissible, in defence, to show that a different day should haVe been written. Pierce v. Charter Oak Ins. Co., 138 Mass. 151 (1884). 11. In an action on a policy of life insur- ance, payable if the person whose' life is in- sured survives a certain day, the plaintiff can recover interest only from the date of the writ,' unless in his declaration be alleges a demand before that time. Pierce v. Charter Oak Ins. Co., 138 Mass. 151 (1884). 12. If a policy of life insurance ispayable ninety days after due notice and satisfactory evidence of the death of the person whose life is insured, or, if he survives a certain day, is then payable to him, the ninety-days clause has no application to the latter contingency, and interest is not payable except as damages for wrongfully witholding the money. Pierce V. Charter Oak Ins. Co., 138 Mass. 151' (1884). 13. If a person is induced, by the false and fraudulent representations of the agent of an insurance company, to take a policy of insur- ance in the company, and to pay the premium thereon, he may rescind the contract, and, in an action against such agent, recover as dam- 569 INSURANCE, IV., V. 670 ages the amount of the premium so paid. Hedden v. Griffin, 136 Mass. 229 (1884). 14. The right which an insolvent debtor has in a policy of insurance on his life, pay- able to him in case he survives a certain day, ■which day is after the first publication of no- tice, passes to his assignee, under the Pub. Sts. 0. 157, § 46. Basselt v. Parsons, 140 Mass. 169 (1885). 15. If a life insurance company has issued a policy on the life of A. payable to B., has allowed A. to surrender the policy without the consent of B., and has issued a new policy to A. payable to C, it cannot, on the death of A., maintain a bill of interpleader against B. and C. to determine its liability. National Life Ins. Co. v. Pingrey, 141 Mass. 411 (1886). 15. An insurance company issued a policy of insurance on the life of A. , payable to him as soon as the premiums, together with such other sums as he should pay, should amount to the sum insured. In case of his prior death the company agreed with A. to pay the sum insured to his mother. The policy further provided that, after the payment of two full premiums, it should not lapse. The inten- tion of A. was to make the policy for the benefit of his mother, who furnished him with money to pay part of the first premium. The mother never had possession of this policy. A. subsequently married, and, without his mother's assent, surrendered the policy to the company, and took out a new one for the same amount payable to his wife. This policy contained the statement that it was a continu- ation of the first policy. A. died before his payments amounted to the sum insured. Held, that the first policy was a settlement in trust for the benefit of the mother, which A. could not revoke; and that the mother was entitled to the proceeds. Held, also, that the company was not liable on the second policy. Pingrey V. National Ins. Co., 144 Mass. 374 (1887). For a case deciding that St. 1880, c. 227, imposing an excise tax upon life insurance companies, is constitutional, see Constitu- tional Law, III. pi. 2. IV. Accident Insurance. 1. Under a policy of insurance against ac- cident, providing that no claim shall be made under it when the death or injury may have happened in consequence of exposure to any obvious or unnecessary danger, and contain- ing a condition that the assured is required to use all due diligence for personal safety and protection, no recovery can be had for the death of the assured, which is caused by his being struck by a railroad train, while run- ning along the tracks in front of it in the night-time, for the purpose of getting on a train approaching in an opposite direction on a parallel track. Tuttle v. Travellers' Ins. Co. , 134 Mass. 175(1883). 2. In an action upon a policy of insurance against bodily injuries "effected through ex- ternal^ violent, and accidental means, within the meaning of this contract and the condi- tions hereunto annexed," one of which is that " the party insured is required to use all due diligence for personal safety and protection," the burden of proof is on the defendant to show that the assured did not use such due diligence. Freeman v. Travelers' Ins. Co., 144 Mass. 572 (1887). V. Marine Insurance. 1. One who has made an oral contract to purchase a vessel has an insurable intei-est in her, notwithstanding the statute of frauds. Amsinck v. American Ins. Co., 129 Mass. 185 (1880). 2. Underwriters issued an open policy of insurance to their agents on account of whom it might concern, " as per certificates " issued, on merchandise from A. to B. by railroad and from B. to C. by steamer; and to cover such other risks as might be indorsed thereon. The policy contained this clause: " Beginning the adventure upon the said goods and merchan- dises from and immediately following the load- ing thereof on board the said vessel at as aforesaid, and shall continue and endure until the said goods and merchandises shall be safely landed at as aforesaid." The agents issued a certificate to a person which stated that they had entered on an open policy, referring to it by its number, and it being the one above set forth, a certain risk on cargo by a schooner from D. to E., " loss to be adjusted in conformity with the conditions of said policy." The insured had no knowledge of the existence in the policy of the clause above set forth. Held, in an action for the loss of the cargo by a peril insured against, that there was no warranty that the cargo should be loaded at D. Clark v. Higgins, 132 Mass. 586 (1882). 3. A policy of marine insurance was effected on a vessel and outfits " on a whaling voyage in the Atlantic, Pacific, and Arctic Oceans," which provided that the policy attached " on provisions, oil casks, iron boilers, and whaling apparatus generally outward, and on oil, bone and other taking, empty casks, and whaling apparatus generally homeward;" and that, " as fast as oil, bone and other articles of cargo are procured, this insurance is to attach." The holder effected a subsequent policy on catchings, which contained a clause that, if the insured had made any prior insurance upon the catchings, then the insurer " shall be answerable only for so much as the amount of said prior insurance may be deficient toward fully covering the property at risk." At the time of the loss the amount of catchings on board was less than the amount insured upon them in the first policy. Held, that the first policy applied to catchings as soon as they were taken on board, without reference to the fact whether the vessel was on her outward or homeward voyage, and did not cover the out- fits and catchings pro rata; and that the second policy did not attach. Lewis v. Manu- facturers' Ins. Co., 131 Mass. 364 (1881). 671 INSURANCE, V. 572 4. If a ship suffers damage by perils insured against, sufficient to justify an abandonment, the assured may abandon and recover for a constructive total loss, although the damage was caused by successive perils, and there is no evidence that the damage caused by any one peril was sufficient to justify an abandonment. Taberv. China Ins. Co., 131 Mass. 239 (1861). 5. When a vessel has been so injured by perils insured against as to become a con- structive total loss, yet if she is in a safe port and in no danger of further injury before com- munication can be had with the insui'er, a sale of the vessel by the master will not dispense with the necessity of an abandonment. Taher V. China Ins. Co., 131 Mass. 239 (1881). 6. A delay of two months in making an abandonment, after knowledge of the con- demnation of a vessel by a board of survey, in the absence of evidence that the delay was necessary to enable the assured to ascertain the real extent of the injuries to the vessel, prevents the assured from relying upon the abandonment, although the insurer has not been prejudiced by the delay. Taher v. China Ins. Co., 131 Mass. 239 (1881). 7. If the assured in a policy of marine in- surance presents to the underwriter a state- ment in proper form of a constructive total loss, which the underwriter makes no objec- tion to, and suggests no modification of, the fact that the loss is not also stated therein as a partial loss will not prevent the assured from recovering for a constructive total loss, although the policy provides that, " in case of loss, such loss shall be paid in sixty days after proof and adjustment thereof," and that " the assured shall not have the right to abandon the vessel for the amount of damage merely, unless the amount which the insurer would be liable to pay under an adjustment as of a partial loss shall e.xceed half the amount in- sured." Taber v. China Ins. Co., 131 Mass. 239 (1881). 8 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 constructive total loss of the outfits ; and evidence of a usage to regard it as such at the port from which the ship sailed is inadmissible. Taber v. China Ins. Co., 131 Mass. 239 (1881). 9. In an action on a policy of marine insur- ance, evidence of a deviation from the voyage insured, by an unreasonable delay in prose- cuting it, is admissible under a general denial in the answer. Amsinckv. American Ins. Co., 129 Mass. 185 (1880). 10. The constructive total loss of a whaling ship at a port where whaling outfits are bought and sold, and where the outfits ai-e in safety, is not a constructive total loss of the outfits, although no vessel is obtainable, within a rea- sonable time, to carry forward the outfits on the voyage insured. Macy v. China Ins. Co., 135 Mass. 328 (1883). 11. A whaling ship and her outfits, which were separately valued, were insured against loss by perils of the seas. The policy pro- vided that catohings shipped home during the voyage should be at the risk of the insured, without diminution of the value of outfits at the time, and that one fourth of all other catchings should replace the outfits consumed. There was a constructive total loss of the ship at a whaling port, the unconsumed outfits were sold there, and the quarter catch was properly shipped to the home port of the ves- sel. Held, that the insured was entitled to recover of the insurer the expense of trans- shipping the quarter catch, but not the freight paid for carrying it to the home port, nor the cost of insurance effected upon it. Macy v. China Ins. Co., 135 Mass. 328 (1883). 12. If a fire in a vessel lying at a wharf in a city is extinguished by members of the fire department of the city, acting wholly under its municipal authority, and not under the direction or at the request of the master of the vessel, there is not a general average loss to which the cargo saved is liable to contrib- ute. Wamsutta Mills v. Old Colony Steamboat Co., 137 Mass. 471 (1884). 13. Evidence of a usage to require a written application for marine insurance is incompe- tent for the purpose of meeting evidence on the part of the plaintiff tending to prove an oral contract of insurance. Emery v. Boston Marine his. Co., 138 Mass. 398 (1885). 14. An open policy of marine insurance contained the clause, "no risk to be binding until accepted by the company and indorsed herein." Held, that this did not preclude the insurer from afterwards orally accepting a new risk, subject to the other provisions of the policy, with an agreement to put it in writing thereafter by indorsing it upon the policy. Emery v. Boston Marine Ins. Co., 138 Mass. 398 (1885). 15. The by-laws of a marine insurance com- pany provided that the president should re- ceive applications, for insurance, fix the rates of premium, and sign all policies ; that, in the absence of the president, policies should be signed by two directors; and that the secre- tary should countersign all policies. In an action against the company on an alleged oral contract to indorse a risk upon an open policy of insurance, made by the secretary in the ab- sence of the president, there was evidence that the president had signed policies in blank and had left the secretary to make the contract; that the secretary had made such indorsements in the absence of the president; that the sec- retary had never been forbidden to do so; that the president did not think the business of the company stopped when he was away ; that the directors did not pretend to have much to do with the business ; and that no instance was remembered where the president had re- voked a policy issued or risk taken by the secretary in his absence. Held, that the juiy might infer from this evidence that the secre- tary had the requisite authority to make a binding oral agreement to enter an indorse- ment upon the policy. Emery v. Boston Ma- rine Ins. Co., 138 Mass. 398 (1885). 16. In an action on an alleged oral agree- ment to indorse a risk upon an open policy of marine insurance, the plaintifE testified that 573 INSURANCE, VI. 574 he said to the secretary of the insurance com- pany, that he had seen a clerk of the company a few days before and told him to enter up a certain sum on a certain cargo, and had said that he would bring in the open policy and have it entered up when the invoice arrived, and that the secretary said, " All right." Held, that the jury would be warranted in finding from this evidence a waiver of a con- dition in the policy that no risk was to be binding until indorsed on the policy. Emery V. Boston Marine Ins. Co., 138 Mass. 398 (1885). 17. An oral contract of insurance on cargo was all(sged to be made, by the terms of which the insured was to bring in to the insurer the invoice of the cargo on its arrival, and have the risk indorsed on an open policy of insurance. The invoice arrived on September 9, and was not taken to the insurer. On September 12, when the loss of the vessel carrying the cargo was reported, the insured demanded that the , indorsement be made on the policy. The in- surer refused, on the ground that he had made no such contract. Eeld, that it was for the jury to determine whether the delay was a reasonable one. Held, also, that the ground of refusal would render a subsequent presen- tation of the invoice unnecessary. Emery v. Boston Marine Ins. Co., 138 Mass. 398 (1885). 18. In an action on a policy of marine in- surance on " advances," evidence is inadmis- sible that, before the contract was executed, the parties agreed to insure " outfits " under the term "advances." Burnham v. Boston Marine Ins. Co, 139 Mass. 399 (1885). 19. In an action on a policy of marine in- surance on " advances," an expert testified that the word " advances " had not of itself a fixed and definite meaning in insurance ; that it was sometimes used to describe an interest which could not be othei-wise described; that, under the circumstances of the case, the word might apply to any pecuniary interest in any- thing put on board the vessel ; and that cer- tain articles might properly be insured as " advances," but that "outfits" would be a better word to describe them ; that, if insur- ing them himself, he should so describe them ; and that "advances" commonly meant ad- vances to crew or advances on account of freight. Held, that this did not show that "outfits" had ever been insured as "ad- vances," or an existing usage to this effect. Burnham v. Boston Marine Ins. Co., 139 Mass. 399 (1885). 20. If the owners of a fishing-vessel have a lien on the catch for money expended for bait, such money may be insured under the term " advances. " Burnham v. Boston Marine Ins. Co , 139 Mass. 399 (1885). 21. The owners of a vessel, on receiving notice by telegraph of the vessel being lost by stranding, handed the telegram to the presi- dent of an insurance company, and made an oral abandonment. A month later, they made a written abandonment of the vessel to the same company, and also delivered to the presi- dent, who was the agent of another insurance company which had executed a policy of in- surance on "advances on board," a notice, addressed to him as agent of the latter com- pany, that they abandoned the vessel " in- sured under your policy " (stating the number of the policy on advances). Held, that the abandonment was sufficient. Burnham v. Boston Marine Ins. Co., 139 Mass. 399 (1885). 22. A policy of insurance upon a vessel, against the perils of the seas, provided that the insurer should not be liable for any par- tial loss " on the vessel or freight, unless it amounts to seven per cent," and, by a clause attached to the margin of the policy, the in- surer agreed to " cover the risk of loss by collision, according to the decisions of the courts of Massachusetts prior to 1853, pro- vided that the company shall not, in any case, be liable for a greater sum than the amount insured by this policy." This court decided, in 1852, that underwriters insuring a vessel against perils of the sea are bound to pay the assured the amount paid by him to the owners of another vessel for damages suf- fered in a collision with the vessel insured, occasioned by the negligence of the master and crew of the latter. The insured vessel came into collision with another, was herself alone in fault, and the damages which her owner was compelled to pay the owner of the other vessel did not amount to a sum equal to seven per cent of the value of the vessel, as agreed in the policy. Held, that no action could be maintained on the policy for the amount so paid. Whorf v. Equitable Ins. Co., 144 Mass. 68 (1887). VI. Mutual Companies. For a case involving defences upon premi- um notes, see Bills and Notes, VIII.pl.S, 4. A mutual fire insurance company was in- corporated in 1848, subject to the provisions of the Rev. Sts. c. 37. In 1854, it was author- ized, on receiving from the subscribers thereto a guaranty capital of a certain amount, to make insurance " otherwise than on the mu- tual principle," and was made subject to the Rev. Sts. c. 37, and all subsequent acts re- lating to insurance companies. To induce persons to subscribe to the guaranty capital, it adopted certain by-laws, by which the di- rectors were authorized, before obtaining sub- scriptions, to determine the rate of the semi- annual dividend, which rate should not be liable to be reduced without the written con- sent of each shareholder. The directors ac- cordingly fixed such rate. The by-laws also provided that the funds of the company arising from premiums or assessments should be appropriated in a way which treated the mutual and stock departments as one. The St. of 1856, 0. 252, § 36, provided that all business done by mutual insurance compa- nies, on account of each department, should be kept separate. From 1854, the insurance company in question kept distinct and sepa- rate accounts of the business of the two departments. In 1882, the company, having 575 INTEREST. 576 a large surplus accumulated from the earnings of the stock department, voted to discontinue this department, and to redeem its guaranty capital. Held, on a bill in equity, under the Pub. Sts. c. 119, § 94, brought for this pur- pose by the company against the shareholders of the guaranty capital, that the by-laws were contrary to the provisions of the Rev. Sts. c. 37, and were void; that the company had acted rightly in keeping separate the accounts of the two departments ; and that the share- holders of the guaranty capital were entitled to the surplus belonging to the stock depart- ment. Traders §• Mechanics' Ins. Co. v. Brown, 142 Mass. 403 (1886). "VII. Foreign Companies. 1. St. 1861, c. 186, relating to the forfeiture of policies of life insurance, and known as the "non-forfeiture law," applies, by force of St. 1872, c. 325, § 7, to foreign insurance compa- nies doing business in this Commonwealth, without rega.rd to the question whether the contract of insurance was made here or in the State where the company is incorporated. Holmes v. Charier Oak Ins. Co., 131 Mass. 64 (1881). But see, however, St. 1877, c. 61, and St. 1880, c. 232, § 6. 2. A non-resident may maintain an action in the courts of this Commonwealth, against a foreign insurance company doing business here, upon a contract made, and the subject matter of which is situated, in another State, although the only service of process is made upon the insurance commissioner of the Com- monwealth, in accordance with St. 1878, c. 36. Johnston v. Trade Ins. Co., 132 Mass. 432 (1882). INTEREST. Illegal interest, see Usury. As to when a partner is entitled to or is chargeable with interest, see Partnership. See Devise, V. pi. 3. 1. Under the St. 1867, c. 56, § 1, if the parties to a contract stipulate for a higher rate of interest than six per cent, interest after the breach of the contract is ordinarily to be meas- ured, to the time of payment or of judgment, by the rate stated in the contract. Union Savings Institution v. Boston, 129 Mass. 82 (1880). 2. If a savings bank agrees to pay a depos- itor a less rate of interest than six per cent, the plaintifE in an action to recover the deposit is only entitled to the rate agreed upon, to the date of the judgment. Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425 (1880). 3. Under St. 1862, o. 183, § 6, which pro- vides that a collector's deed of land sold for taxes shall contain a special warranty that the sale has been conducted according to the provisions of law, and gives the purchaser the right, if it subsequently appears that he has no claim to the property sold, by reason of in- formality in the proceedings, upon surrender of his deed, to the amount paid by him " to- gether with ten per cent interest per annum on the same, .... in full satisfaction of all claims for damages," interest, in an action on the covenant of warranty, may be recovered at that rate to the time of judgment. Slociim V. Boston, 129 Mass. 559 (1880). 4. Pending an appeal from the probate of a will, by which the entiie estate of the testator was devised to a charity, the person named as executor and the heirs at law and next of kiu of the testator made an agreement of com- promise, which was afterwards ratified by this court, on a petition in equity, under St. 1864, c. 173, by the terms of which the executor was to pay to trustees, to be appointed by the Probate Court to carry out the charity created by the will, a certain sum ; after payment of debts and charges of administration, to pay the residue, not exceeding, a certain sum, to the next of kin; and, if anything remained after such payment, to divide the same be- tween the trustees of the charity and the next of kin, in a certain proportion. After the payment of debts and charges of administra- tion, the residue in the hands of the adminis- trators was less than the sum which by the agreement was to be paid to the next of kin. Held, that the trustees of the chaiity were not entitled out of this fund to any interest on the sum paid to them. Lincoln v. Wood, 128 Mass. 203 (1880). 5. In an action upon a foreign judgment, the plaintifE is entitled, without alleging or proving any demand, to recover interest by way of damages upon the judgment sued on, from the date of that judgment to the date of the judgment in this action, computed at the ordinary legal rate of interest in this Com- monwealth. Hopkins v. Shepard, 129 Mass. 600 (1880). 6. Where an insurance company is restrained by proceedings in the nature of an equitable trustee process, instituted by a creditor of a widow to whom a policy of insurance on her husband's life, by its terms, was made pay- able, the company will not be charged ynih. interest pending the proceedings, in, the ab- sence of evidence that the company has had any beneficial use of the money. Norris Vj Massachusetts Ins. Co., 131 Mass. 294 (1881). 7. If a person summoned as trustee is in- debted to the principal defendant upon a de- mand where interest would be recoverable, by the latter only as damages for breach of con- tract, interest will not be deemed to accrue during the pendency of the trustee process. SmUh V. Flanders, 129 Mass. 322 (1880) ._ 8. In an action for money had and received, interest is to be computed only from the date of the writ, in the absence of evidence ofa demand for the money before bringing suit. Talbot V. Commonwealth Bank, 129 Mass. 67 (1880). 9. In an action upon a foreign judgment, the plaintiff is entitled to recover interest upon the judgment, both for damages and costs, from the date of that judgment to the 577 INTERROGATORIES. 578 date of the judgment in this action, computed at the ordinary legal rate of interest in this Commonwealth, although a different rate of interest, being that of the State in which the judgment sued on was obtained, is em- bodied in the record of tha^ judgment. Clark V. Child, 136 Mass. 344 (1884). 10. In an action on a policy of life insur- ance, payable if the person whose life is in- sured survives a certain day, the plaintiff can recover interest only from the date of the writ, unless in his declaration he alleges a demand before that time. Pierce v. Charter Oak Ins. Co., 138 Mass. 151 (1884). 11. If a trustee wrongfully sells securities belonging to the trust estate, and converts the proceeds to his own use, in an action against a surety on his bond, interest should be com- puted on the amount converted from the day it is found to be due up to the day of issuing the execution, without rests. McKim v. Blake, 139 Mass. 593 (1885). 12. In an action against the sureties upon the bond of an executor, to whom the residu- ary clause of the will gave a fund to be dis- posed of by him for charitable purposes, if there is no wilful breach of duty by the ex- ecutor, simple interest at six per cent should be computed upon the residue unaccounted for, from the date when this duty should have been performed to the rendition of judg- ment, and added to the principal sum, from which should be deducted his commission. Whiter. Ditson, 140 Mass. 851 (1885). 13. In an action for breach of an agree- ment to sell and deliver certain goods, it was agi-eed that, if the plaintiff was entitled to recover, he was entitled to recover for the failure to deliver a certain number of tons at a certain rate per ton. Held, that the plain- tiff was entitled to interest on the amount so computed from the date of his demand. Thovias V. Wells, 140 Mass. 517 (1886). 14. If C. denies his liability for the destruc- tion of A.'s property by a disaster which also destroyed B.'s property, and, after B. has maintained an action against C. for his loss, A. brings an action against C. in which C. admits his liability, the tribunal assessing the damages has power, in its discretion, to add interest to the sum which it finds to represent A.'s loss on the day it occurred. Frazer v. Bigelow Carpet Co., 141 Mass. 126 (1886). 15. An action of ejectment for the recovery of a term was referred to an assessor, who found that the fair value of the lease to the plaintiff was a cei-tain sum for each year while he was dispossessed. Held, that the plaintiil was entitled to interest on each yearly sum of the amount named, from the time when it might have been realized by him if he had not been ejected, and that the plaintiff was not entitled to have the interest computed by making quarterly rests, although by the terms of the lease the rent was payable quarterly. Hodgkins v. Price, 141 Mass. 162 (1886). 16. If the defendant, in an action for money had and received, has wrongfully ob- tained and fraudulently withheld the plain- BUPPLEMENT. — 10 tiff's money, he is chargeable with interest from the time of his so obtaining it. Manu- facturers' Bank v. Perry, 144 Mass. 313 (1887). 17. In an action upon a promissory note, payable within a certain time after date " with ten per cent annual interest," in which the plaintiff recovers judgment, if there are two partial payments on the note after its maturity, interest is to be computed on the principal at the rate of ten per cent to the time of the first partial payment, which is less than the interest due; and is then to be computed on the principal to the time of the next payment, and both payments, which to- gether are more than the interest then due, and enough to reduce the principal below the original amount, are to be subtracted; and interest is then computed on the balance to the date of the judgment. Dovmer v. Whittier, 144 Mass. 448 (1887). INTERPLEADER. See Equity, VII. INTERROGATORIES TO ADVERSE PARTY. 1. Under Gen. Sts. c. 129, § 46, a defend- ant is bound to answer interrogatories as to such matters only as tend to support the plaintiff's claim, and not as to matters which relate exclusively to his own defence. Weth- erbee v. Winchester, 128 Mass. 293 (1880). 2. If matters which a defendant is not, as well as matters which he is, bound to answer, are included in a single interrogatory, under Gen. Sts. c. 129, § 46, he is not required to take the risk of separating the two ; and can- not, under a general order to make further answers, with which he has complied in ap- parent good faith, be defaulted for imperfec- tions in such answers, without a specific order of the court as to the particulars in which they are insufficient, and opportunity to amend them. Wetherbee v. Winchester, 128 Mass. 298 (1880). 3. If, after interrogatories to a defendant, under Gen. Sts. c. 129, § 46, have been filed and answered, an additional interrogatory is filed without leave of court, the defendant cannot be defaulted for not answering it. Wetherbee v. Winchester, 128 Mass. 298 (1880). 4. The fact that an action is brought for the benefit of a third person does not deprive the defendant of the right, given by the Pub. Sts. c. 167, § 49, to file interrogatories for the discovery of facts material to the defence of the action, to be answered on oath by the plaintiff. Harding v. Morrill, 136 Mass. 291 (1884). 5. If the plaintiff in an action wholly ne- glects to answer interrogatories filed by the defendant, any of which are pertinent and material, it is within the discretion of the 579 JOINT TENANTS. 680 court to order a nonsuit; and no exception lies to the exercise of such discretion. Har- ding V. Morrill, 136 Mass. 291 (1884). 6. If the answer to an interrogatory to a party to an action shows that the interroga- tory is immaterial and does the party no harm, he has no ground of exception to an order compelling him to answer. Todd v. £isAop, 136 Mass. 386 (1884). 7. Under the Pub. Sts. c. 167, §§ 49-60, if a party to a suit files answers to interroga- tories, the court cannot, without further pro- ceedings, enter a nonsuit or defaixlt because the answers are deemed insufficient or evasive. Pels V. Raymond, 139 Mass. 98 (1885). INTERSTATE COMMERCE. See Constitutional Law; Inspection Laws. INTOXICATING LIQUORS. See Spirituous Liquors. INTOXICATION. See Drunkenness. J. JOINDER OF COUNTS. See Indictment; Pleading. JOINDER OP PARTIES. See Equity Pleading, I. ; Parties. JOINT STOCK COMPANIES. See Corporation; Partnership; Volun- tary Association. JOINT TENANTS AND TENANTS IN COMMON. 1. A part owner of a vessel cannot main- tain replevin for his undivided part, although he owns a major interest in the vessel. Hack- ett V. Potter, 131 Mass. 50 (1881). 2. The assignment to a widow of dower in certain specific rooms in a house and in cer- tain specific parcels of land, with rights of way over other parts of the house and over parts of the remaining land, does not make her a tenant in common of the servient estate with the heir at law, so as to bar her right to an estate of homestead. Weller v. Weller, 131 Mass, 446 (1881). 3. If two tenants in common of land mort- gage it, and the mortgagee sells the land, under a power of sale contained in the mort- gage, for more than the mortgage debt, and pays the surplus proceeds to one of the mort- gagors, who has paid out, in interest, insur- ance, and taxes, not only his own part of these expenses, but, on account of his cotenant, a sum greater than the latter's proportion of the surplus proceeds, the mortgagee is not liable to the latter for his share of such proceeds. Roche V. Hampden Savings Bank, 128 Mass. 115 (1880). 4. Two mortgagees of land, holding sev- eral mortgages, given at the same time to secure several obligations, are tenants in common, and may join in one writ of entry to foreclose. Cochran v. Goodell, 131 Mass. 464 (1881). 5. Under the Gen. Sts. c. 136, a tenant in common of land, who has erected a house upon the land without the knowledge or con- sent of his cotenant, is not entitled to have partition made of the land without the house, and to have that part of the land on which the house stands set ofE to him. Hmband v. Aldrich, 135 Mass. 317 <1883). 6. This court has no jurisdiction in equity to order partition of land between tenants in common. Husband v. Aldrich, 135 Mass. 317 (1883). 7. Tenants in common of land may be joined as respondents in a petition, under the Pub. Sts. c. 176, to compel them to bring an action to try their titles to the land, although their alleged titles are several. Gurney v. Waldron, 137 Mass. 376 (1884). 8. An estate of homestead, under the St. of 1855, c. 238, does not exist in land held in common and undivided. Holmes v. Winches- ter, 138 Mass. 542 (1885). 9. A. and B. owned a building erected on land of C. A. took, in his own name, a writ- ten lease of the land from C. The lease ex- pired, the occupation continued, the rent was increased, and A. continued to pay the rent as he had done previously, by giving his promissory notes therefor. A., becoming un- able to pay his debts in full, compromised with C. by paying a certain sum on the dol- lar, and received a discharge. A. then sought, in an action against B., to recover B.'s share of the full amount of the rent due at the time of the compromise. Held, that B. was liable 581 JUDGMENT AND DECREE. 582 only for his share of the reduced sum paid by A. to C. Mayhem v. Durfee, 138 Mass. 584 (1885). 10. One tenant in common of a tract of land bordering upon the sea enclosed a por- tion by a bank wall, and placed upon a part of it a fish-house, not fastened to the soil, and susceptible of easy removal, and a pump. He afterwards let the fish-house, receiving rent therefor, paid taxes on the house, but hot, eo nomine, on the land. The other tenants in common used the fish-house as they found it convenient to do so. The pump was used as a common convenience by the neighborhood; and the land thus enclosed was used as a place of common resort for smoking and conversa- tion, and as a place where all might draw up their boats. Held, that such use and occupa- tion, even if continued for twenty-nine years, would not amount to an ouster of the co- tenants. Ingalls y. Newhall, 139 Mass. 268 (1884). 11. A conveyance of land in fee to a hus- band and wife, prior to the St. of 1885, c. 287, conveyed an estate by entireties, of which he had the right to make a lease good against the wife during coverture. Pray v. Stebbins, 141 Mass. 219 (1886). 12. A tenant in common of real estate may recover of his cotenant, under a count on an account annexed, one half of the amount paid for taxes assessed upon the estate. Kites v. Church, 142 Mass. 586 (1886). 13. If a tenant in common of real estate occupies the whole estate under an oral agree- ment to pay his cotenant for the occupation, the latter may recover for the same under a count on an account annexed, although his claim is described therein as for "rent." KUes V. Church, 142 Mass. 586 (1886). 14. A tenant in common of land, who re- moves, without doing any unnecessary dam- age thereto, a structure placed upon the land by his cotenant without his assent, which ex- cludes him from that portion of the land, is not liable to an action in the nature of tres- pass by his cotenant; nor can an action be maintained against him under the Pub. Sts. c. 179, §§ 6, 7. Byam v. Bickford, 140 Mass. 31 (1885). 15. A lease of a parcel of land executed by two of three tenants in common confers suf- ficient title upon the lessee to enable him to maintain an action, under the Pub. Sts. c. 175, for possession against a tenant at will of the lessors. Grundy v. Martin, 143 Mass. 279 (1887). As to the unconstitutionality of St. 1878, 0. 229, which attempted to make valid certain tax sales, see Constitutional Law, II. (c), pi. 1. As to the extinguishment of a mill privi- lege by tenants in common, see Easement, 1. pi. 4. As to the effect of partition upon rights of a tenant in common, in a building affixed by him to the land, see Partition. As to the effect of a contract to cultivate land on shares, see Landlord and Tenant, pi. 19. JOINT TORTFEASORS. If a person leaves a hatchway in the side- walk connected with his premises in an unsafe condition, so that an injury to a traveller on the street is liable to happen in consequence of it, and another person so interferes with the hatchway as to cause it to be more dan- gerous, and a traveller is injured by the hatch- way, the occupant of the premises is in pari delicto with the other person, and cannot re- cover indemnity of him, if compelled to pay damages recovered in an action by the in- jured person. Churchill v. Holt, 131 Mass. 67 (1881). JUDGE. See Justice of the Peace. As to the removal of a judicial officer upon address, see Constitutional Law, IV. pi. 2. JUDGMENT AND DECREE. Judgment, how proved, see Evidence. See Equity Pleading, VII. See also the titles of the various courts. 1. The Superior Court has power, under its rules, upon petition of a party to an action pending therein, and after notice to the ad- verse party, to order the record of a former action between the same parties to be com- pleted, and the judgment therein made up and entered; the judgment, when so recorded, takes effect from the date of the original judg- ment; and it is within the discretion of the court to allow the plaintiff in the pending action, in whose favor the original judgment was rendered, to file an amended declaration therein, counting upon that judgment. King V. Burnham, 129 Mass. 598 (1880). 2. Gen. Sts. c. 133, § 7, and c. 115, § 14, authorizing " the court," upon overruling a motion for a new trial, to enter judgment as of a former term, confer no authority upon a judge in vacation to enter judgment, where the case has not been continued nisi. Green- wood V. Bradford, 128 Mass. 296 (1830). 3. A question, which was in issue in a suit in equity, and was settled by the decree therein, cannot be tried anew in an action at law between two persons who were parties to that suit. Powers v. Chelsea Savings Bank, 129 Mass. 44 (1880). 4. The declaration in an action of tort brought by A. against B. and C. alleged that the plaintiff employed C. to buy goods for him ; and that C. without authority sold the goods to B., and the same were wrongfully converted by the defendants to their own use. B.'s answer alleged that he bought the goods in good faith from C, who was authorized to sell them; and that the goods in question were seized by A., against whom he brought an action for the conversion of the goods, and recovered judgment. The answer of A. in 583 JUDGMENT AND DECREE. 584 the action brought against him by B. averred that the goods were purchased with his own money; that B. never had any title to them, and paid no money for them in good faith, but conspired with C. to defraud A. It ap- peared that the action of B. against A. was tried on these issues, and that a judgment was rendered for B. Held, that the judgment was a bar to the action by A. against B. and C, so far as B. was concerned. Morse v. Elms, 131 Mass. 151 (1881). 5. At the trial of an action for the main- tenance of a fence upon the plaintiff's land, a judgment for the plaintiff for nominal dam- ages in a former action between the same parties for building the fence, entered by agreement of counsel with the consent of the defendant, is competent evidence, but is not conclusive of any other fact than that the plaintiff was at that time under his declara- tion entitled to recover such damages. Staple- ton V. Dee, 132 Mass. 279 (1882). 6. The recoi'd of a judgment in an action of trespass quare clausum /regit, if the ques- tion of title was put in issue, tried, and passed upon, is admissible in a subsequent writ of entry between the same parties to recover the same land; and, if the pleadings in the for- mer action do not alone show upon what ground the judgment was based, this may be shown by parol evidence. White v. Chase, 128 Mass. 158 (1880). 7. Although a former judgment, if rendered on the merits, is an absolute bar to a subse- quent action for the same cause of action be- tween the same parties, yet, if the second action is upon a different cause of action from the first, the judgment in the former action is conclusive only upon those issues which were actually tried and determined; and, if extrin- sic evidence is necessary to determine what issues were actually tried and determined, such evidence must be submitted to the jury. Foye V. Patch, 132 Mass. 105 (1882). 8. A judgment against a constable for the conversion of property attached by him and not returned to the owner, after the termina- tion of an action in his favor, concludes the sureties in an action on the constable's offi- cial bond. Dennie v. Smith, 129 Mass. 143 (1880). 9. After judgment and execution for dam- ages and costs have been obtained and satis- fied in an action against one wrongdoer, while an action is pending against a joint wrongdoer, the plaintiff is not entitled to a judgment for nominal damages in the latter action, so as to enable him to recover the costs thereof also ; the defendant in the second action, having pleaded the judgment and satisfaction in the first, is entitled to judgment for his costs. Savage v. Stevens, 128 Mass. 254 (1880). 10. If A. obtains against B. a judgment on a promissory note, and levies upon land conveyed by B. to C., C. being neither a party nor a privy, may show, by way of de- fence to a real action brought by A. to recover the land, that the note had been paid or ex- tinguished. Tarbell r. Jewett, 129 Mass. 457 (1880). 11. The record of a judgment of a court of another State is only prima facie evidence of the jurisdiction of that court over the defend- ant ; and, if the record shows that he resided in this Commonwealth when sued, and was not served with process in the other State, it is open to him to prove that he did not ap- pear, in person or by attorney, in the action in which the judgment was rendered. Wnght V. Andrews, 1.30 Mass. 149 (1881). 12. The judgment of a court of another State against two persons jointly, who were residents of this Commonwealth, over one of whom only the court had jurisdiction, being entire and unqualified, is, in the absence of any evidence of the law of the other State upon the subject, void against both. Wright V. Andrews, 130 Mass. 149 (1881). 13. Evidence that, in an action brought in a court of another State against a resident in this Commonwealth, the defendant never em- ployed counsel, nor authorized any one to em- ploy counsel for him, and that, at the trial of the case, he appeared and testified as a wit- ness only, and not as a party, is sufficient to show that that court had no jurisdiction over him. Wright v. Andrews, 130 Mass. 149 (1881). 14. Although the wages of a seaman on a coasting voyage on the Atlantic coast are sub- ject to attachment by the trustee process (see While V. Dunn, 134 Mass. 271, 1883), yet, where, after service of the trustee process upon the owners, they are compelled to pay the sea- man his wages by virtue of the judgment of an admiralty court rendered with knowl- edge of the pendency of the trustee process, they will not be charged as trustees by the State court. Eddy v. O'Hara, 132 Mass. 56 (1882). ■ 15. The provision of Gen. Sts. c. 155, § 23, that decrees of courts of record " shall be pre- sumed to be paid and satisfied at the expiration of twenty years " after the rendition thereof, does not operate as an absolute bar to a writ of scire facias on such a decree; but the presumption may be rebutted by evidence showing that the decree has not in fact been satisfied. Knapp v. Knapp, 134 Mass. 453 (1883). 16. At the trial of an action for assault and false imprisonment against an officer for arresting the plaintiff on a writ in favor of A., which did not contain a declaration, the defendant put in evidence the record of a for- mer action by the same plaintiff against A., in which the plaintiff obtained a judgment, which was satisfied, and the declaration in which alleged that A. swore out an affidavit, maliciously setting forth that he had reason to believe, and believed, that the plaintiff in- tended to leave the State; that a magistrate thereupon authorized the arrest of the plain- tiff; that the plaintiff was arrested and in^- prisoned for a certain time; that the affidavit was falsely made; that the defendant's object was to harass and imprison the plaintiff; that the plaintiff, after being imprisoned for a cer- tain time, was discharged from custody; and that the defendant afterwards boasted that be 585 JUDGMENT AND DECREE. 586 knew the plaintiff did not intend to leave the State, and he only intended to have him im- prisoned. Held, that the judgment in the for- mer action was a bar to the present action. Luce V. Dexler, 135 Mass. 23 (1883). 17. Judgment was entered for the plaintiff in an action in the Superior Court. The de- fendant took out a writ of error from the Su- preme Court of the United States; and, while the case was pending in that court, he was duly adjudicated a bankrupt, and obtained his discharge, the plaintiff not proving his claim in the bankruptcy proceedings. This discharge was pleaded in the Superior Court. Subsequently, the Supreme Court of the United States issued a mandate affirming the judgment of the Superior Court, giving judg- ment for costs accruing in error, and ordering execution therefor. Held, that the defendant was not entitled, on motion of the plaintiff in the Superior Court that the judgment be af- firmed in accordance with the mandate, to try the question of the effect of the discharge in bankruptcy. Goodrich v. Wilson, 135 Mass. 31 (1883). 18. Under the forty-first rule of the Supe- rior Court, it is within the discretion of that court, to the exercise of which no exception lies, to order a judgment rendered at a for- mer term to be recorded, upon the petition of the prevailing party; and the fact that partial payments have been made since the recovery of the judgment will not take the case out of the operation of the rule. Taber v. Wilcox, 136 Mass. 56 (1883). 19. A bill in equity for the specific perform- ance of a contract under seal, alleging that it has never been rescinded, but containing an alternative prayer for the payment back of money paid under the contract, which, after a hearing upon the merits, is dismissed with costs, is not a bar to an action at law between the same parties, founded upon a rescission of the contract by the plaintiff, to recover back the money so paid. Ballou v. Billings, 136 Mass. 807 (1884). 20. If, by the law of a State where a judg- ment is obtained, an appeal does not stay pro- ceedings on the judgment in that State, the pendency of such an appeal is no bar to an action on the judgment in this Commonwealth. Clark V. Child, 136 Mass. 344 (1884). 21. In an action upon a foreign judgment, the plaintiff is entitled to recover interest upon the judgment, both for damages and costs, from the date of that judgment to the date of the judgment in this action, computed at the ordinary legal rate of interest in this Commonwealth, although a different rate of interest, being that of the State in which the judgment sued on was obtained, is em- bodied in the record of that judgment. Clark v. ChUd, 136 Mass. 344 (1884). 22. No action lies by A. against B. for con- spiracy between B. and C. in obtaining a judgment against A. in an action brought in a court of another State having jurisdiction of the subject matter and of the parties, in which A. appeared and answered, but was defaulted, which judgment remains in full force, and to satisfy which A.'s property in that State was sold. Engslrom v. Sherburne, 137 Mass. 153 (1884). 23. In an action of tort, in the Superior Court, against three defendants, a verdict was returned for the defendants, and the plaintiff moved for a new trial. Pending this motion, one of the defendants died, and his death was suggested of record. The court granted the motion for a new trial as against one of the remaining defendants only. The plaintiff subsequently filed a paper in the case, stating that he discontinued the action, and consented that judgment be entered for the defendants for costs. The clerk thereupon entered upon the docket, " Plaintiff discontinues action," and "Judgment for defendants by consent." The clerk subsequently, in vacation, struck out the second entry, and continued the case on the docket. At a subsequent term, the judge ordered judgment for the defendant who had died, as of the term when the verdict was rendered; for the defendant against whom a new trial was gi-anted, as of the term of the discontinuance; and for the other defendant, as of the then term. Held, that the plain- tiff had no ground of exception. Cowley v. McLaughlin, 187 Mass. 221 (1884). 24. If a writ issued by a district court is served by a summons which does not state the hour of the day nor the place where the court is to be holden, and the plaintiff obtains a, judgment against the defendant on his de- fault, such judgment, until reversed, is a valid judgment, and is conclusive upon the plaintiff. Wood V. Payea, 138 Mass. 61 (1884). 25. A judgment for the plaintiff, in an ac- tion of replevin by a mortgagee of the prop- erty replevied, conclusively establishes that, at the time he brought the action, he was en- titled to the immediate possession of the property. Allen v. Butman, 138 Mass. 586 (1885). 26. A bill in equity brought under the Gten. Sts. c. 113, § 2, cl. 11, by a creditor not a resident of this Commonwealth at the time of the first publication of proceedings in insol- vency against his debtor, to reach and apply, in payment of the debt, the interest of the debtor in the assets of a copartnership of which he was a member, acquired since such first publication, was dismissed, on the ground that the plaintiff could not thus obtain a lien upon such property before he had obtained a judgment at law upon his debt. Held, that the decree was not a bar to an action at law upon the debt. Maxwell v. Clarke, 139 Mass. 112 (1885). 27. A judgment against two debtors jointly is not discharged by the commitment and sub- sequent release from arrest of one of the debt- ors, but remains in full force against both. Raymond v. Butterworth, 139 Mass. 471 (1885). 28. A person, who has been admitted as claimant, under the Pub. Sts. c. 116, § 31, in an action to recover money deposited in a sav- ings bank, is not entitled, after a verdict for the plaintiff, to move in arrest of judgment, until some unauthorized order or judgment adverse to him has been entered by the Supe- 587 JURY AND JURORS. 688 rior Court. Sullioan v. New Bedford Institu- tion for Savings, 140 Mass. 260 (1885). 29. A conditional judgment, rendered upon a writ of entry brought by a mortgagee of land against the mortgagor in possession to foreclose his equity of redemption therein, is not conclusive of the amount then due on the mortgage, against one who has purchased the equity of redemption before the bringing of the writ of entry, on a bill in equity by him to redeem the land. Dooley v. Potter, 140 Mass. 49 (1885). 30. Property of the defendant in an action was attached more than four months before the institution by him of insolvency proceed- ings. He was defaulted pending such pro- ceedings. The plaintiff thereupon suggested these proceedings, and, before the St. of 1885, c. 59, took effect, obtained a special judgment against the property attached. Execution issued, reciting the judgment for the plaintiff for the amount of the debt and costs, to be levied only on the property attached. The execution was returned satisfied in part only. Held, that the judgment was a final judg- ment ; and that the plaintiff was not entitled to have a further judgment entered, or pro- cess issued, for the unsatisfied balance of his debt. Gay v. Raymond, 140 Mass. 69 (1885). 31. If a writ of error to reverse a domestic judgment rendered in an action is open to the defendant in such action, he cannot set up, in defence to an action on the judgment, that the court had no jurisdiction of the original action because there was no proper service of the writ therein. Kittredge v. Martin, 141 Mass. 410 (1886). 32. The demandant in a writ of entry claimed title to the premises by a deed, which was executed and delivered before, but was not recorded until after, an attachment of the premises in an action against his grantor. The tenant claimed title under a levy and sale on an execution issued upon the judg- ment in the action after the demandant's deed was recorded. The judgment was for a sum greater than the ad damnum in the writ. Held, that the judgment was erroneous, and could be avoided by the demandant ; and that he was entitled to the premises. Safford v. Weare, 142 Mass. 231 (1886). 33. If, at the time of taking an appeal to the Superior Court in a criminal case, a statute has been enacted and approved, but has not taken effect, providing for a new term of the Superior Court, to be held at an earlier day than the term then provided for by law, an appeal to such new term is not a ground for an arrest of judgment in the Superior Court. Commonwealth -7. Stevens, 142 Mass. 457 (1886). 34. Under the fourteenth article of the Amendments of the Constitution of the Unit- ed States, a judgment in personam against 'a person who is not a resident of this Com- monwealth, who does not appear in the action, and who is not served personally with process within the Commonwealth, is invalid. Eliot V. McCormick, 144 Mass. 10 (1887). For other cases involving questions relating to judgments, see Amendment, pi. 3; Con- flict OF Laws, pi. 5, 9; Corporation, VII. pi. 2 J Drunkenness; Error; Inter- est, pi. 5 J Pauper; Pleading. JURISDICTION. Evidence that, in an action brought in a court of another State against a resident in this Commonwealth, the defendant never em- ployed counsel, nor authorized any one to em- ploy counsel for him, and that, at the trial of the case, he appeared and testified as a wit- ness only, and not as a party, is sufficient to show that that court had no jurisdiction over him. WrigU v. Andrews, 130 Mass. 149 (1881). As to jurisdiction in equity, see Equity. See the titles of the various courts re- spectively; also, Accessory, pi. 1; Appeal; Bankrupt, I. pi. 2; Deposition; Excep- tions ; Indictment ; Judgment, pi. 30; Removal. JURY AND JURORS. As to what questions are for the jury, see Law and Fact. See also Constitutional Law, II. (rl); Equity Pleading ; New Trial ; Verdict. 1. Under St. 1873, c. 44, providing that "no person shall serve as a traverse juror in the county of Suffolk more than thirty days at any term of court," it is no ground for a chal- lenge to the array that, at the time it was made, more than thirty days had elapsed since the jurors had begun to serve, if during that time the court had been in session less than thirty days. Provident Savings Institution v. Burnham, 128 Mass. 458 (1880). 2. If, in a municipal court, in which no trial by jury can be had, an issue of fact is joined upon a plea in abatement, and judg- ment rendered for the plaintiff, and the de- fendant appeals to the Superior Court, he is entitled to a trial by jury in that court upon the same issue, but upon that issue only, un- less the Superior Court orders or permits him to plead anew. O'Loughlin v. Bird, 128 Mass. 600 (1880). 3. It is no bar to an indictment against sev- eral persons jointly, that, at a previous term of court, after a jury was impanelled and the trial begun, the judge, without the consent of the defendants, stopped the trial, and took the case from the jury, because one of the jurors was found to be surety upon a recogni- zance entered into by one of the defendants before the trial. Commonwealth v. McCormick, 130 Mass. 61 (1881). 4. By consent of counsel, an answer was filed in which was reserved the right to file an amended answer. Subsequently the de- fendant gave notice to the plaintiff that he should not file an amended answer. Held, that the parties were then " at issue " within 589 JUSTICE OF THE PEACE. 690 St. 1874, c. 248, § 1, and the 16th rule of the Superior Court, requiring a party desiring a jury trial to file a notice to that effect within ten days after the parties are "at issue;" and that the plaintiff, by not filing a notice within the time required, had waived a right to a trial by jury. Bailey v. Joy, 132 Mass. 356 (1882). 5. It is within the discretion of the judge presiding at a trial, to the exercise of which no exception lies, to put inquiries to the jury as to the grounds upon which they found their verdict; their answers may be made a part of the record, and will have the effect of special findings of the facts stated by them. Spurr V. Shelburne, 131 Mass. 429 (1881). 6. The fact that, in an action against a railroad corporation for personal injuries oc- casioned to the plaintiff's intestate by being struck by a locomotive engine, the jury took a view of the place where the accident oc- cun-ed, will not warrant the inference that they acquired knowledge of material facts, which were not put in evidence, and which might have influenced their verdict, especially if the view was taken more than two years after the accident and at a different season of the year; or that they rejected as incorrect, from their own observations, the testimony of a civil engineer, who made measurements of certain distances in the vicinity of the place of the accident. TuUy v. FUchburg Railroad, 134 Mass. 499 (1883). 7. K the name, the street and number of the residence, and the occupation, of persons summoned as jurors in the county of Suffolk are written upon cards, which are shaken to- gether in a revolving barrel before being drawn, the provisions of the Pub. Sts. c. 170, § 31, as to empanelling a jury, are sufficiently com- plied with; and the word " liquors " on such a card sufficiently designates the person's oc- cupation. Commonwealth v. Bacon, 135 Mass. 521 (1883). 8. A member of the Common Council of the city of Boston is not competent to sit as a juror in a case to which the city is a party. Boston V. Baldwin, 139 Mass. 315 (1885). 9. During the trial of an action, it appeared that an uncle of the plaintiff married an aunt of a juror, and that two uncles of the juror married aunts of the plaintiff. The judge ruled that the juror was not related to the plaintiff. Held, that the ruling was right. Bigelowv. Sprague, 140 Mass. 425 (1886). 10. If a constable, who, under the Pub. Sts. c. 170, § 2, is exempt from serving as a juror, is duly drawn and serves as a juror in a case, a party thereto is not entitled to a new trial as of right. Moehs v. Wolffsohn, 143 Mass. 130 (1886). 11. Under the Pub. Sts. c. 170, § 22, it is not necessary that the town clerk or select- men of a town should indorse upon a venire for jurors the names of the persons who are drawn. Commonwealth v. Besse, 143 Mass. 80 (1886). 12. A member of a voluntary association, formed for the enforcement in a certain city of the laws against the illegal sale of intox- icating liquors, and for the prosecution of violations of those laws, is incompetent to sit as a juror on the trial of a complaint for such a violation, instituted by an agent of the as- sociation, who is furnished by it with money to pay his expenses in carrying on the work, and is also paid for his services. Common- wealth v. Moore, 143 Mass. 136 (1886). JUSTICE OF THE PEACE. Of attestation of record, see Appeal, V. pi. 3. See Indictment; Poor Debtor; War- rant. Of want of power under Gen. Sts. c. 152, to take recognizance in term time, see Re- cognizance. 1. The power conferred upon justices of the peace by Gen. Sts. c. 46, § 5, to order the removal of obstructions in ways, is not a judi- cial power. Davis v. Smith, 130 Mass. 113 (1881). 2. Since by Pub. Sts. c. 155, § 7, no one but a justice of the peace can be a trial jus- tice, and, by § 9, a justice of the peace duly appointed trial justice ceases to be such if^his commission as justice of the peace expires before his commission as trial justice, a signa- ture to the jurat annexed to a complaint, and to a warrant, as trial justice, involves a signa- ture as justice of the peace, and no separate designation of the inferior office is necessary. Commonwealth v. Mosher, 134 Mass. 226 (1883). 3. A warrant issued by a trial justice to an officer, under St. 1876, c. 162, in which he is directed to " make due return of this wur- rant," does not authorize him to return it to another trial justice. Commonwealth v. Intoxi- cating Liquors, 130 Mass. 29 (1880). 4. A certificate of the entry of a mortgagee for the purpose of foreclosure, sworn to before himself as a justice of the peace, is invalid. JuddY. 2Vyon, 131 Mass. 345 (1881). 5. A trial justice is not liable to a civil ac- tion for having rendered a judgment for costs in violation of the provisions of the Pub. Sts. c. 183, § 88; nor for having issued execution on the judgment when it was not appealed from nor reversed. White v. Morse, 139 Mass. 162 (1885). 591 LACHES. 5d2 L. LABOR. Work and labor, see Assumpsit, in. LACHES. 1. In an action on a promissory note, trans- ferred to the plaintiff after maturity and with- out consideration, the following facts appeared. The consideration of the note was a convey- ance, by warranty deed, of a parcel of land, of which the grantor owned only three undi- vided fifths, he having forged the signatures of the owners of the other two fifths. This fact was not known to the defendant until June, 1877, and he soon after informed the plaintifE, the widow of the grantor, of it. In August following, a writ of entry was brought against the defendant to recover these two fifths; the defendant notified the plaintiff, and she as- sumed the defence of the suit. In September, 1880, the demandants i-ecovered judgment. In December, 1877, this action on the note was brought. The defendant in January, 1878, filed an answer setting up a partial failure of consideration ; and in Febraary, 1879, filed an amended answer setting up that the note was obtained by fraud, and offering to reconvey the land. Held, that the judge who presided at the trial properly refused to rule, as matter of law, that the defendant had lost his right to rescind by his delay to elect so to do beyond a reasonable time after he had full knowledge of the fraud. Nealon v. Henry, 131 Mass. 153 (1881). 2. A delay of three years in bringing a bill in equity, to enforce a charge upon land created by a will, is. not such laches as will defeat the plaintiff's right, if there has been no change in the defendant's position by rea- son of such delay. Nudd v. Powers, 136 Mass. 273 (1884). 3. A leasehold estate was held in trust under a will, by the terms of which the trus- tees were to pay the income to each surviving child of the testator for life, and on the death of each child to transfer such child's share to his children. The trustees were empowered to convey any of the trust property discharged of the trust. In 1872, the trustees, without fraud, conveyed, for less than its fair value, an undivided portion of the leasehold estate, through a third person, to two of their num- ber, who then owned the remaining undivided portion of the estate. In 1875, the beneficia- ries under the will knew of the transaction. In 1877, on their petition, the then trustee was removed by the Probate Court, and a new trustee was appointed. In 1880, a bill in equity was brought by the new trustee, and by some of the beneficiaries, to set aside the conveyance. Held, that the plaintiffs had not been guilty of such laches as to prevent their maintaining the bill. Morse v. Hill, 136 Mass. 60 (1883). 4. A town, in November, 1881, voted to appoint a committee to appear before the Legislature and procure certain legislation desired, with authority to employ counsel. The legislation was procured, and the town voted, in September, 1882, to pay the bill of the committee. Three days afterwards, a petition was filed, under the Pub. Sts. c. 27, § 129, to restrain the town from paying the bill. Held, that the petition was seasonably filed. Mead v. Acton, 139 Mass. 341 (1885). 5. In 1878, a brook was taken by a town lor a public use, whereby mortgaged land was in- jured. An action was brought against the mortgagor, and the town was summoned as trustee. In 1880, the mortgagee died, and his administrator held the mortgage, on account of this suit, without foreclosing it, until 1882, when he assigned it to the distributees of the estate. In 1881, the mortgagor filed a petition to have his damages sustained by the taking assessed; and in January, 1884, he obtained a verdict. One of the distributees knew of the taking of the brook, and was informed of the petition of the mortgagor when it was on trial; but it did not appear that the distribu- tees then knew that they were entitled to damages. In February, 1884, the distributees, as assignees of the mortgage, brought a hill in equity against the town and the mort- gagor to have the damages awarded applied to the payment of the mortgage debt. Held, that these facts would warrant a finding that the plaintiffs had not been guilty of laches. Wood v. Weslborough, 140 Mass. 403 (1886). 6. A. sent from a distant State to B., the husband of his sister C, in this Common- wealth, where A. formerly resided, a sum of money, which B. deposited in a savings bank, subject to the order of A. upon him therefor. C. bought a parcel of real estate here, and ob- tained from B., and used in part payment for , the same, a portion of A.'s money which he had so entrusted to B. C. then wrote a letter to A., which informed him of such purchase, and contained the following language : " I could not make the purchase until I prevailed after a hard struggle with B. to let me have a little of your money, which he gave me on these terms, that the deed should be made out in my name, that at my death all should be yours ; all B. wants is a living out of it whilst he lives, and if you don't approve of this let- ter, all the favor I ask of you is to give me one or two years, and I will pay you up your money with thanks, for so doing you will be the means of making me a home whilst my- self and. husband lives, and after that it is 593 LANDLORD AND TENANT, L, II. 594 your property forever." A. received this let- ter, but did not answer it. C. lived in pos- session of the estate for nearly eight years, when she died, leaving a will, by which she devised the estate to B for life, and, after his decease, to D., another brother, in fee, upon the conditions that he should pay the ex- penses of her last sickness and funeral, and should also pay to A. a certain sum larger in amount than tnat part of his money used as above stated. A. was, soon afterwards, in- formed of the contents of the will. B. went iuto possession of the estate, and held it until his death, twenty years after that of C. D., who had lent C. sums of money, and had also paid the expenses of her last illness and fnneral, then took possession of the estate. D. knew, at the time of the transaction, that a part of A.'s money was used without his consent by C. in paying for the estate. A., upon hearing of B.'s death, returned to this Commonwealth, and brought a bill in equity against D. for the conveyance of the legal title to the estate, having refused a tender by D. of the sum directed to be paid him in C.'s will. Held, that A., by his laches, had lost the right to assert any claim to the estate which he might have had otherwise ; and that he was entitled only to the sum given him by the will of C, with interest from the time of B.' s death. McGivney v. McGivney, 142 Mass. 156 (1886). LAND DAMAGES. See references under Eminent Domain. See also Asbiikament ; Damages. LANDLORD AND TENANT. I. What constitutes the Relation. 11. Leases. III. Tenancy at Will and at Suffer- ance. IV. Rent ; Eviction. V. Action fob Use and Occupation. VI. Rights and Liabilities op Land- lords AND Tenants. VII. Notice to Quit. VIII. Statutory Process to recover Possession. IX. Crops and Emblements. See also Equity; Fixtures; Forcible Entry; Personal Property. I. What constitutes the Relation. 1. After an entry by a mortgagee of a farm to foreclose his mortgage, an arrangement was made between the mortgagee and mortgagor by which the latter was to carry on the farm. Subsequently, A., who had purchased the equity of redemption of the mortgagor, by deed duly recorded, took possession of the farm and carried it on, employing the mortgagor as his agent. A. then, after the crops were sown, borrowed money of the plaintiff, under a promise to pay it back from the first crops raised on the farm. The mortgagee, after this, was informed for the first time that A. was carrying on the farm, and of the agree- ment A. had made with the plaintiff, and he objected to A.'s paying the plaintiff from the crops. After the crops were gathered, they were allowed to remain in the possession of A. , who delivered to the plaintiff a part of the crops to pay the debt due the plaintiff, and who informed the plaintiff, at the time of such delivery, of the mortgagee's claim. The mort- gagee subsequently took possession of the crops , including that portion of them delivered to the plaintiff. Held, that, even if the ar- rangement between the mortgagee, after entry, and the mortgagor constituted the latter a tenant at will, there was no evidence that such a relation existed between the mortgagee and A. ; and that an action of tort in the nature of trover would not lie against the mortgagee. Porter v. Hubbard, 134 Mass. 233 (1883). 2. A woman mortgaged a parcel of land to a bank. The bank foreclosed the mortgage, and the husband of the woman agreed to pay rent for the same to the bank until the bank sold the land. Subsequently the bank con- veyed the land, and the grantee brought an action, under the Pub. Sts. c. 175, against the husband to recover possession. The judge, who tried the case without a jury, found that the defendant was, at the time of the deed to the plaintiff, the tenant of the bank; and ruled that it was not open to the defendant to deny, in this action, the bank's title or pos- session at the time of s,aid deed. Held, that the finding was warranted by the evidence, and that the ruling was correct. Granger v. Parker, 137 Mass. 228 (1884). II. Leases. 1. A lease of a " store " includes the land under it and to the middle of a private way in the rear, the fee of which is in the lessor. Hooper v. Farnsworth, 128 Mass. 487 (1880). 2. Where a lessee of a lot of land makes a lease, for the remainder of his term, of a building standing on a portion of the lease- hold premises, and by the terms of the lease grants easements, appurtenant to the building, of light and air, and of passing and repassing, over other portions of the leasehold premises, in common with himself and those claiming under him, such lease is an underlease, and not an assignment of his whole term in a por- tion of the leasehold premises. McNeU v. Kendall, 128 Mass. 245 (1880). 3. The lessee of an estate for a term of years, at a fixed rent payable quarterly, and who had covenanted to pay taxes, demised it to another for a term equal to the whole of the unexpired term of the original lease, by a 595 LANDLORD AND TENANT, IL 696 lease containing covenants by the lessee to pay rent monthly at an increased rate and taxes, and providing that the lessor might enter and take possession for breach of cove- nant, and that the lessee would quit and de- liver up the premises to the lessor at the end of the term. Held, that this was a sub-lease, and not an assignment of the original lease; and that the sub-lessee was not liable to the original lessor upon the covenant to pay taxes in the original lease. Dunlap v. Bullard, 131 Mass. 161 (1881). 4. If a lease, containing a covenant for the payment by the lessee of the taxes assessed upon the demised premises, is assigned with- out any covenant on this subject, the assignee is liable to his assignor for the amount of taxes accruing during his term and paid by the assignor, but is not so liable for taxes ac- cruing after he has parted with his possession by assignment to another ; although the lease was for more than seven years and the second assignment was not recorded. Mason v. Smith , 131 Mass. 510 (1881). 5. A lease of a tenement for the term of two years contained the following provision: " And it is hereby mutually agreed that if, before the end of said term, neither of the parties shall give to the other three months' notice in writing of his intention to terminate this lease at the end of said term, said lease shall continue in force for another term of one year, and in the same manner from year to year, until one of said parties shall determine this lease by notice in writing, in the manner afoi-esaid, which notice shall terminate with the end of the year for which the premises are then held; and provided that either party may terminate this lease by notice in writing given three months before the termination of any one year." Held, that, upon the failure of the lessee to give notice, three months be- fore the end of the second year, of his inten- tion to terminate the lease, it continued in force for another term of one year. Dix v. Atkins, 130 Mass. 171 (1881). 6. Certain premises were let by a written lease " for the term of one year " for a sum named, " with the privilege of continuing five years " at an increased rent. Held, that the latter clause was not an executory contract for a lease; but was sufficient to create a present demise, if the occupation of the prem- ises was continued after the expiration of the first year. Kimball v. Cross, 126 Mass. 300 (1884). 7. Certain premises were Jet by a written lease " for the term of one year " for a sum named, " with the privilege of continuing five years " at an increased rent, payable semi- annually. The lessee, after the expiration of the first year, continued to occupy the prem- ises, with a building which had been erected by him, and paid rent subsequently. He afterwards stated to the lessor that he did not wish to keep the premises longer; but the only assent to a surrender of the premises was on condition that he would remove his building, which he did not do. Held, in an action for six months' rent, that there was sufficient evidence for the jury to find an election to continue in possession of the premises, after the expiration of one year, under the lease; and that there was no surrender. Kimball v Cross, 136 Mass. 300 (1884). 8. A lease for twenty years contained the provisions, that, if the premises or any part thereof should, during the term, be destroyed by fire, the rent, or a proportionate part there- of, should abate until the lessor or lessee should put the premises in repair; that if the lessee should rebuild, the lessor should contribute the amount of insurance money received; and that, if the lessor should want the premises for the purpose of building any time after the expiration of fifteen years from the commence- ment of the lease, the lessee should give up the premises, after reasonable notice. A fire took place, the lessor illegally ousted the lessee and erected new buildings, and eight years afterwards, at the expiration of fifteen years, not intending then to rebuild, and while stUl in possession, notified the lessee that he wanted the premises for the purpose of building. Held, in an action of ejectment begun by the lessee two years before the no- tice was given, that the notice was of no effect. HodgUns v. Price, 137 Mass. 13 (1884). 9. A. executed a written lease to B. of a parcel of land, to be used as a coal yard, for a term of ten years, rent payable monthly. The lease contained a clause by which A. agreed to pay B. the value of all buildings and scales which he should place and leave on the prem- ises at the end of the term, " provided the said premises shall not be relet to the lessee." After the execution of the lease, B. placed up- on the land expensive buildings and scales. After the expiration of the lease, B. contin- ued to occupy the premises for more than two years, paying monthly the same amount as the rent fixed in the lease. Held, in an action on the agreement in the lease, that, even if the subsequent occupation by B. amounted to a tenancy at will, the premises were not " re- let," within the meaning of that word in the lease. Moseley v. Allen, 138 Mass. 81 (1884). 10. A lease of certain premises contained the covenant by the lessee that he or others having his estate in the premises would not assign the lease without the written consent of the lessor. During the term, the lessee, with such consent, assigned one undivided half of his interest in the lease to a third person, who subsequently, during the term, reassigned the same to the lessee, without the consent of the lessor. Held, that the reassignment was not a breach of the covenant in the lease. Mc- Cormick v. Stowell, 138 Mass. 431 (1885). 11. In 1874, a lease of a building in a city was made for the term of ten years, the lessee agreeing to pay rent and taxes. The tax-bills were made out to the lessor, and he, in 1875 and 1876, sent them to the lessee, who paid them to the city. In 1877, the lessor agreed orally that, if the lessee would pay rent then due, and thereafter pay rent promptly, he would assume the taxes. The lessor paid the taxes for several years, ending in 1882. Two months after paying the taxes for that 597 LANDLORD AND TENANT, III. 698 year, the lessor notified the lessee that, unless he would renew the lease, he would be called upon for the taxes of that year. The lessee refused to renew the lease. Held, that these facts constituted no defence to an action by the lessor against the lessee for the amount of the taxes of 1882. BowdUch v. Chickering, 139 Mass. 283 (1885). 12. In an action upon a written lease " for the term of one year, with privilege of two years more at lessee's option," if the lessee holds over and pays rent after the expiration of the first year, evidence is admissible to show that he did so as a tenant at will, under an oral agreement with the lessor made before the execution of the lease. Atlantic National Bank v. Demmon, 139 Mass. 420 (1885). 18. The execution and delivei-y, by a hus- band, of a written lease of land conveyed in fee to him and his wife prior to the St. of 1885, c. 237, determines the rights of a person holding as a tenant at will or licensee of the wife; and the lessee may maintain an action on the Pub. Sts. c. 175, against such person, to recover possession of the premises. Pray V. Stebbins, 141 Mass. 219 (1886). 14. A. owned two lots of land, one fronting on E. Street, and the other adjoining the first in the rear. Both lots were bounded on one side by M. Street. Before A. acquired title, a building had been erected, three stories in height, covering both lots, and having a par- tition wall, through which there was no pas- sageway, between the two on the line of the two lots. A. took down the partition wall on the first floor, thus making one large room, but did not alter the partition wall above. The entrance to this room, and to the rooms above on the front of the building, was from E. Street. The rooms in the rear on the two upper floors were reached by an outside stair- case, in the rear of the building, from M. Street. A. then made a lease to B., in which the building was described only by its num- ber on E. Street. Held, that the rooms in the rear in the upper stories were not in- cluded in the lease. Houghton v. Moore, 141 Mass. 437 (1886). 15. A lease of a parcel of land executed by two of three tenants in common confers suf- ficient title upon the lessee to enable him to maintain an action, under the Pub. Sts. c. 175, for possession against a tenant at will of the lessors. Grundy v. Martin, 143 Mass. 279 (1887). 16. The owner of a building leased to A. the first floor of the building, with a light to use a hoistway in common with the other occupants of the building. This hoistway ran from the top to the bottom of the building, and was enclosed, but communicated with each story by a door. The hoistway on each story had two trap doors, which, when down, made a continuous floor with that of the rest of the story. The owner of the building sub- sequently leased to B. " all the chambers in the building over the store on the street floor," with a right to use the hoistway in common with the occupant of the store be- low. Held, that B. had, under his lease, a right to the use of the trap doors on the floors leased to him, for the purpose of storage, when not required by A. for hoisting pur- poses. Held, also, that if the tenants made an agreement by which any person after using the hoistway should shut the trap doors, B. had a right to expect that A., after using the hoistway, would shut the trap doors, although B. subsequently went to the hoistway to get something he had stored there. Kent v. Todd, 144 Mass. 478(1887). in. Tenancy at Will and at Sufferance. 1. A taking of land by a city for the pur- pose of widening a street, without actual evic- tion, does not determine the estate of a tenant at will of the land. Emmes v. Feeley, 132 Mass. 346 (1882). 2. A conveyance in fee of a portion of a parcel of land determines the estate of a ten- ant at will in the entire parcel. Emmes v. Feeley, 132 Mass. 346 (1882). 3. A tenant at will is not estopped to deny that since his own entry into possession his landlord's title has been determined by the act of the landlord. Emmes v. Feeley, 132 Mass. 346 (1882). 4. A tenant at will, who continues to oc- cupy land after a portion of it has been con- veyed by the landlord to a third person, is liable as a tenant at sufferance, under Gen. Sts. c. 90, § 25, to pay as rent what the re- maining portion of the premises is reasonably worth, from the date of the conveyance to the entry by the grantee. Emmes v. Feeley, 132 Mass. 346 (1882). 5. If a tenant at will surrenders the prem- ises by an express agreement with the owner, and vacates them with his family and goods, leaving behind a person who has occupied the premises with him by his permission, but without the owner's knowledge or consent, the owner is not liable to an action for an assault, if he ejects such person , after reque.'t and refusal to leave the premises, using no unreasonable force. Stone v. Lahey, 133 Mass. 426 (1882). 6. The facts, that a tenant at will of the mortgagor of premises had been notified by a purchaser of the equity of redemption of the mortgagor that he owned the premises, and requested to hold possession for him and to pay rent to him, which he agreed to do, and that afterwards the mortgagee made an entry upon the premises for condition broken, and notified the tenant to pay rent to him, and the tenant made no answer, but continued to occupy the premises and paid rent to such purchaser after the mortgagee's entry, it not appearing that the purchaser claimed ad- versely to the mortgagee, nor that, in paying rent to the purchaser, the tenant asserted any title adversely to the mortgagee, do not show that the tenant occupied adversely to the mortgagee, who may maintain against the tenant an action for use and occupation. Lucier v. Marsales, 133 Mass. 454 (1882). 599 LANDLORD AND TENANT, IV. 600 7. The letting into and taking possession of premises, under an agreenaent for a written lease, do not, of themselves, create such a ten- ancy at will as requires the notice prescribed by the Gen. Sts. c. 90, § 31, by the tenant, in order to determine it, if the landlord refuses to execute the lease agreed upon. Lyon v. Cunningham, 136 Mass. 532 (1884). 8. A tenant at will of a part of a building, the other part being occupied by the landlord, and in each part of which personal property of the landlord is contained, is liable for the destruction of the part in the possession of the landlord and its contents by fire, caused by the negligence of himself or his servants in kindling or guarding fires in stoves used for heating the part of the premises let to him ; but he is not liable for the destruction of the part so let from the same cause, if the burning is not intentional, and the negligence is not so gross as to amount to recklessness. The liability of the tenant for the landlord's chat- tels in the possession of the tenant depends upon the nature of the bailment. Lolhrop v. Thayer, 138 Mass. 466 (1885). 9. A notice from A. to B., a tenant at sufierance, to quit, dated January 30, 1883, after reciting that a lease had been given to A. for the terra of one year from January 29, 1883, notified B. to vacate the premises " within two days from the above date." Held, that the notice was sufficient. Hooton V. Holt, 139 Mass. 54 (1885). 10. A verbal agreement by the owner of land that A. may remain in possession during life, without paying rent, constitutes A. a tenant at will ; and his tenancy is terminated by the execution of a written lease of the land by the owner to a third person. Hooton v. Holt, 139 Mass. 54 (1885). 11. A tenant at will cannot maintain an action against his landlord for advising and procuring a person to whom he has given a lease of the premises to eject the tenant; and evidence of the lessee's motives in ejecting the tenant is immaterial. Groustra v. Bourges, 141 Mass. 7 (1886). IV. Rent; Eviction. 1. A. leased land which he owned subject to a mortgage given by his grantor, and which he had not assumed. A few days before an instalment of rent became due, the mortgagee entered and foreclosed the mortgage, and de- manded rent of the tenant, and the latter at- torned to him. Held, that the owner of the land could not maintain an action against the tenant for the whole or any part of this instal- ment; and that St. 1869, c. 368, § 1, concern- ing the apportionment of rent, was inappli- cable to the case. Adams v. Bigelow, 128 Mass. 365 (1880). 2. If rent is payable in advance on the first day of the month, no demand of the rent on the day it falls due is necessary to entitle the landlord to maintain an action therefor. Clarke v. Charter, 128 Mass. 483 (1880). 3. If wrongful acts of a lessor upon the de- mised premises are such as permanently to deprive the lessee of the beneficial enjoyment of them, and the lessee, in consequence thereof, abandons the premises, it is an eviction ; and the intent to evict is conclusively presumed. Skally V. Shute, 132 Mass. 367 (1882). 4. In an action for rent due under a lease which the lessee admits he has executed, evi- dence offered by the lessee that he had not seen the lease is properly excluded. Kimball V. Cross, 136 Mass. 300 (1884). 5. In an action for rent due under a written lease " for the term of one year " for a sum named, " with the privilege of continuing five years " at an increased rent, the lessee having failed, after the expiration of the first year, to remove a building which had been erected by him, evidence that he had been told by others than the lessor that the building was not on the demised premises is hearsay, and inadmissible. Kimball v. Cross, 136 Mass. 300 (1884). 6. If a lessee for a term of years, within fourteen days after a notice to quit, is given him by the lessor for non-payment of rent, under the Gen. Sts. c. 90, § 30, tenders to the lessor the rent due, he prevents a forfeiture of his estate; and he is not obliged to tender the taxes due on the estate which the lessor has paid to prevent the estate being sold for taxes, although the lease contains a covenant that the lessee shall pay the taxes. Hodgkins v. Price, 137 Mass. 13 (1884). 7. A lease under seal of a tract of land for the term of ten years, by A. to B., and afterwards assigned to C, contained the fol- lowing provisions:' " The party of the first part, in consideration of grading and opening the yard, etc., shall furnish clay, sand, and water the first year, commencing " on a day named, " free of expense to the party of the second part ; for nine successive years follow- ing, the party of the first part shall furnish to party of the second part same materials at the rate of twenty-five cents per thousand brick as they may count out of the kiln." It also provided that, if the clay on the premises should be exhausted before the lease expired, the lessee might use adjoining land to procure clay; and that the lessee should "pay the said rent in semiannual payments." A new agreement under seal, changing some of the terms of the lease, was made before the assign- ment, by which the lessor agreed with the assignee " that, if he shall take an assignment of the lease aforesaid and proceed to manufac- ture bricks upon the premises covered thereby, then I wiU receive as rent " a certain sura "for each thousand bricks manufactured;" and that " if clay pipe is manufactured upon the said premises, or if any other articles are manufactured from the clay thereon," the rent shall be determined in a certain manner. The lessee never manufactured any brick. Held, in an action upon the covenants of the lease, to recover rent while the defendant was in possession after the first year, that no rent had become due thereunder; and that there was no implied covenant of the lease that the 601 LANDLORD AND TENANT, V. 602 lessee should proceed and manufacture brick under it. Smiley v. McLautklin, 138 Mass. 363 (1885). 8. In an action for the rent reserved in a written lease, the lessee may prove, in de- fence, that, after the delivery of the lease, the lessor, for a good consideration, entered into an oral agreement that for the future the rent should be reduced. Hastings v. Lovejoy, 140 Mass. 261 (1885). 9. An oral agreement by a lessee to take a partner in his business for the ensuing three years, and to borrow a lai-ge sum of money, and put the same into the business, pi-ovided the lessor will reduce the rent reserved in a written lease of the premises, and an actual fulfilment of that agi'eement in consequence of the lessor's promise to reduce the rent, and a continuance of the business under these cir- cumstances for three years, are a good consid- eration for the lessor's promise; and the lessor is not entitled to recover the amount so agreed to be abated. Hastings v. Lovejoy, 140 Mass. 261 (1885). 10. If an owner of land, after conveying it in mortgage, leases it, and the mortgagee, after an entry for breach of condition of the mortgage, brings a writ of entry against the lessee to recover possession of the land, to which the lessee files a plea of nul disseisin, the lessee is not estopped by the lease to con- test the demandant's title, if he has not at- torned to him, or been compelled to pay rent to him. Holmes v. Turner's Falls Co., 142 Mass. 590 (1880). V. Action foe Use and Occupation. 1. If a tenancy at will is terminated be- tween two rent days, by a conveyance of the premises by the landlord to a third person, the tenant is not liable to his landlord for use and occupation of the premises from the beginning of the term to the date of the conveyance ; and St. 1869, c. 368, does not apply. Emmes v. Feeley, 132 Mass. 346 (1882). 2. If a person is in possession of a build- ing adapted for use as a foundry and machine- shop, and furnished with power from a water- wheel belonging to the owner of the building, he is liable for the fair rental value of the premises as a machine-shop and foundry, after notice from the owner that he shall hold him liable if he continues such occupation there- after, although he continues to use it for storage purposes only. Horton v. Cooley, 135 Mass, 589 (1883). 3. An officer attached a stock of goods in a building let to the owner of the goods by parol, and placed a keeper in the building, who remained there in possession of the goods for two months, when the officer discharged him and left the keys to the building inside, leaving the outer door unlocked. As the officer was leaving the premises, the owner, in the presence of the keeper and the owner of the goods, said to the officer, " What shall I do about rent?" The officer replied, "I don't know." The owner then said, "I notify you now, and the other party too, that I shall claim rent. " The owner then locked the door, retaining the keys, but not occupying or using the building otherwise than for the storage of these goods, until they were removed by the officer nearly two years afterwards. About a month before their removal, the owner of the building demanded of the officer such removal and payment of rent for the building; and in the same month, and also in the following month, the officer demanded the goods of the owner of the building, and, upon his refusal to deliver them, removed the same. Held, in an action by the owner of the building against the officer for use and occupation, that the evidence failed to show any relation of land- lord and tenant between the parties. Leonard V. Kingman, 136 Mass. 123 (1883). 4. B. placed upon a building in process of erection by A., of which B. had orally agreed to take a lease when completed, a sign stating that he would occupy the store upon its com- pletion, and that the chambers were to be let. B. also offered the chambers to let to various persons; he was at the building daily, giving directions to the workmen; he selected the gas fixtures for the building; and he caused various changes to be made in . the details of the work in finishing the building. Upon the completion of the building, B. refused to take the lease, and removed his sign. Held, that A. could not recover of B. for use and occupa- tion. Bacon v. Parker, 137 Mass. 309 (1884). 5. Rent due under a written lease cannot be recovered under a count for use and occu- pation. Smiley v. McLautklin, 138 Mass. 363 (1885). 6. An action for use and occupation will not lie against the assignee in insolvency of a debtor, who, at the time of the filing of his petition, was a tenant at will of certain prem- ises, merely upon proof that the goods of the insolvent were allowed to remain on the premises for about two months thereafter, and that during said time the assignee entered with workmen, who for several days were en- gaged in removing the goods. Wales v. Chase, 139 Mass. 538 (1885). 7. In an action for use and occupation against A. and B., it appeared that A. took no part in the hiring of the plaintiff's prem- ises, except that he was present when B. made the agreement with the plaintiff ; that B. hired the premises for the purpose of cann- ing on business there under the name of A.; that the plaintiff made out his bills for rent to B.; and that the plaintiff afterwards proved the claim which is the subject of this action against the estate of A. in insolvency. The judge ruled that there was no evidence that A. had made a contract with the plaintiff ; in- structed the jury that, if A. was the agent of B., the plaintiff could not recover against B.; and refused to rule that, if B. was doing business under the name of A., and the premises were hired in furtherance of said business, the plaintiff could not recover. The jury found for the plaintiff against B. Held, that B. had no ground of exception. Gard- ner V. Peaslee, 143 Mass. 382 (1887). 603 LANDLORD AND TENANT, VL 604 VI. Rights and Liabilities of Land- lords AND Tenants. 1. A landlord who lets rooms in a building to different tenants, with a right of way in common over a staircase, is bound to use reasonable care to keep such staircase in re- pair; if he fails to do so, he is liable to a ten- ant injured thereby while in the exercise of reasonable care; and the fact that the tenant uses the staircase after knowing that it is in a dangerous condition is not conclusive evidence that he is not in the exercise of due care. Looney v. McLean, 129 Mass. 33 (1880). 2. At the time of the execution of the lease of a shop, there were in the shop certain cases, decided by the court to be furniture, and not fixtures. These cases had been sold by the former tenant to a person who removed them against the objection of the lessee, and in consequence of their removal the lessee had to expend the sum of $200 to paint the walls behind the places where the cases had stood, and the rental value of the shop was lessened. The lessee did not know of the sale when he took his lease, and nothing was then said about the cases. Held, in an action by the lessee agailist the lessor for breach of the cov- enant for quiet enjoyment, that, even if the cases were removed with the consent of the lessor, the act of removal was a trespass, and not an eviction; and that the action could not be maintained. Kimball v. Grand Lodge of Masons, 181 Mass. 59 (1881). 3. A landlord who lets tenements in a building to different tenants, with a right of way in common over a flight of stone steps, without a railing, leading from the street to the yard of the building, is not liable to a tenant injured by falling upon ice accumu- lated upon the steps, if it is not the landlord's duty to keep the steps clear of ice, although the steps are constructed of such material and in such a way as to occasion the accumulation of ice thereon, there being no change in the construction of the steps since the tenancy be- gan. Woods V. Naumkeag Steam Cotton Co., 134 Mass. 357 (1883). 4. A tenant cannot maintain an action against his landlord for an injury caused by falling upon a stair in the tenement, the tread of which has been sawed out and left un- supported by a previous tenant, there having been full opportunity to examine the stair at the time of hiring, and no warranty of the fitness of the tenement having been given by the landlord ; the only evidence of knowledge on the part of the landlord being that he knew the stair had been sawed out, that he tried it and, it bore his weight, and he thought it would bear anybody's weight. Bowe v. Hunk- ing, 135 Mass. 380 (1883). 5. The allowing an old, defective, and de- caying plank sidewalk, along one side of a private way, to remain contiguous to the rear of premises which have been under lease for several years, with no means of access from the premises to the sidewalk, will not render the owner of the premises and of the land under the sidewalk liable to an action for personal injuries sustained by one passing over the sidewalk, in consequence of its de- fective condition. Birnbaum v. Crowninshield 137 Mass. 177 (1884). ' 6. A landlord is liable for the acts of his tenant in polluting the waters of a brook, which is a natural watercourse running through the premises, by discharging sink-water there, in, if the building leased is adapted and in- tended to be used in the manner complained of, whether he retains control over the house or not. Jackman v. A rlington Mills, 137 Mass. 277 (1884). 7. An officer, who enters upon premises at the request of a tenant, for the purpose of arresting a person there engaged in disturbing the peace, may maintain an action for an in- jury caused by their defective condition, while leaving them with the offender in his custody. Learoyd v. Godfrey, 138 Mass. 315 (1885). 8. The owner of premises may be liable to a person lawfully there, by request of a tenant of a portion of them, for an injury caused by a defect therein, although there is an unas- serted right in the premises outstanding in an assignee of a lessee of such owner, if the owner is in the possession and control of that part where the accident happened, and let the premises in their defective condition. Learoyd V. Godfrey, 138 Mass. 315 (1885). 9. In an action for personal injuries occa- sioned to a third person by the fall of a shed, owned by the defendant and used by A. with the consent of the defendant, A. testified that the defendant said he could not let the shed to him, but he might keep his things there if he would look after the premises till he heard from him again, and that he was to pay no rent and receive no compensation. The de- fendant testified that he told A. he could use the premises and take care of them, but need pay no rent, and make what repairs were necessary. Another witness testified that the' defendant told A. that he could use the shed, he keeping it in shape for his occupancy such as he wanted. Held, that, whether A. was a tenant of the shed and bound to keep it in repair, so as to exonerate the defendant from liability for its fall, was a question for the jury. Cunningham Y. Cambridge Savings Bank, 138 Mass. 480 (1885). 10. A landlord, who lets tenements in a building to different tenants, with a right of way in common over an uncovered piazza an- nexed to the rear of the building, and extend- ing its whole length, and over steps leading from the end of the piazza down to the street, is liable to a tenant injured, while in the ex- ercise of due carg, by falling upon ice accumu- lated upon the piazza and steps, by reason of water flowing thereon from a defective pipe connecting with the roof of the building. Watkins v. Goodall, 188 Mass. 588 (1885). 11. The basement of a building in a city extended under the sidewalk of the street on which the building abutted, and was lighted by a " Hyatt light," the iron frame of which was set in and formed part of the sidewalk. The first story and basement of the building were occupied under a lease of " the store and 605 LARCENY. 606 cellar under the same," containing the cov- enants that the lessees would keep the prem- ises in repair, " but the lessees are not bound to repair the roof," and that the lessor might enter to view the premises, or to make repairs if he should elect to do so. The upper stories of the building were occupied by another ten- ant under a lease, containing the covenant that the lessee should make " all repairs on the demised premises." A traveller on the sidewalk was injured by falling thereon, solely because the iron frame of said light had worn smooth and slippery from long use, and recovered judgment against the city, which the city paid. Held, that the owner of the building was not liable to the city. Boston v. Gray, 144 Mass. 53 (1887). 12. In an action of ejectment for the re- covery of a term, it appeared that the build- ings on the demised premises were partially destroyed by fire during the term ; that the plaintifE did not express or entertain any in- tention of repairing or rebuilding them ; that the lessor removed the remains of the old buildings, and afterwards erected a new build- ing, which was much larger, more expensive, and more valuable than the old buildings, and yielded larger rents and profits; and that the lessor, in so doing, acted in good faith, and in the belief that he was entitled to the posses- sion of the premises. Held, that the plaintiff had no ground of exception to a ruling that the measure of damages was the same as it would have been if the defendant had wrong- fully withheld possession of the demised premises for the same length of time in sub- stantially the same condition in which they were just before the fire ; and that, from the gross rents and profits which might have been received from the estate, there should be de- ducted a fair compensation for the necessary time and labor involved in the care and man- agement of the premises and in the collection of rents. Hodgkins v. Price, 141 Mass. 162 (1886). Vn. Notice to Quit. 1. A lessor served a notice to quit for non- payment of rent, by leaving the notice at the lessee's house, off the demised premises, and called the attention of a person, not an agent of the lessee nor a member of his family, to it. This person gave the notice to the lessee the next day. Held, that the leaving of the notice was not a good service on the lessee, and that the fourteen days, prescribed by the Gen. Sts. c. 90, § 30, did not begin to run un- til the lessee received the notice. Hodgkins v. Price, 137 Mass. 13 (1884). 2. A notice to quit served upon one of two tenants in common is notice to both. Grundy V. Martin, 143 Mass. 279 (1887). Vm. Statutory Process to recovek Possession. See Forcible Entry akd Detainer. After breach of the condition of a mortgage of land, the mortgagor paid the amount due and "received a discharge of the mortgage not under seal. After this the mortgagee entered for the purpose of foreclosing the mortgage, and notified a tenant of the mortgagor not to pay rent to the mortgagor. Held, that the mortgagor could recover possession of the land from the tenant by an action under Gen. Sts. c. 135, § 5, and that the tenant could not, by way of defence, avail himself of any title in the mortgagee. Baker v. Gavitt, 128 Mass. 93 (1880). IX. Crops and Emblements. If the owner of a farm leases it to a per- son for a year, under an oral agreement, by which the lessee is to " carry on the farm at the halves," and is to leave at the end of the term as much hay as he found there at the be- ginning, and the lessor does not occupy the farm during the term, it cannot be held, as matter of law, that the parties are tenants in common, and that the lessor has, during the year, such a potential interest in the crops as to enable him to mortgage them. Orcutt v. Moore, 134 Mass. 48 (1883). LAPSE. See Devise, XI. LAPSE OF TIME. See Laches; Limitation. As to the presumptions arising from lapse of time, see Evidence, I. ; Judgment ; Pay- ment. LARCENY. See also Breaking and Entering ; House- breaking ; Indictment. 1. An indictment for larceny by embezzle- ment must allege that the defendant "felo- niously did steal, take, and carry away" the property which is the subject of the indict- ment. Commonwealth v. Pratt, 132 Mass. 246 (1882). 2. An indictment on Gen. Sts. c. 161, § 15, for larceny in a building, is not sustained by evidence that the owner of the property, which was part of a stock of goods in a shop, placed the property in the hands of the defendant for inspection, who ran off with it, while the owner momentarily turned his back upon him. Commonwealth v. Lester, 129 Mass. 101 (1880). 3. That a police officer is present in a shop in the night-time when an article, which forms part of the stock in trade and is in its usual place therein, is stolen therefrom, he having been stationed there for the purpose of detecting the thief, will not have the effect to change the character of the offence from 607 LARCENY. 608 that of larceny in a building. Commonwealth V. Nott, 135 Mass. 269 (1883). 4. At the trial of an indictment for larceny, the defendant has no ground of exception to the exclusion of a paper, signed by the owner of the article stolen, in which he states that he is " content not to have the matter further prosecuted," and gives his reasons therefor. Commonwealth v. Nott, 133 Mass. 269 (1883). 5. At the trial of an indictment for lar- ceny, the defendant has no ground of excep- tion to the exclusion of the question, " Why did you not yourself swear to the original complaint ? " put, on cross-examination, to a witness who detected the defendant in the commission of the larceny. Commonwealth v. Nott, 135 Mass. 269 (1883). 6. The words, "You had better own up," followed by, "I was in the place when you took it; we have got you down fine; this is not the first you have taken; we have got other things against you nearly as good as this," spoken by one police officer to another, in a police station, and in the presence of the superior officer of the person addressed and of the speaker, who has detected him in the act of stealing, will render a subsequent confes- sion of guilt by the accused person inadmis- sible at the trial of an indictment against him for the larceny. Commonwealth v. Nott, 135 Mass, 269 (1883). 7. While a person was under arrest for the larceny of two barrels of whiskey, the arrest- ing officer told him " that they had evidence enough to bind him over, that they had found one barrel of the whiskey and the other would do him no good, and that he better tell, or might as well tell, him where the other barrel was ; " and the accused person thereupon ad- mitted that he took the whiskey, and told the officer where the barrel could be found. On the trial of the person for larceny, at the close of all the evidence, the defendant asked the judge to rule that the admission of the de- fendant to the officer should not be considered by the jury. The judge declined so to rule, but instructed the jury that, if they found that the officer said in substance, " We have found one barrel of the whiskey, and it will be bet- tier for you to tell where the other is," the jury should disregard the admission altogether. Held, that the defendant had no ground of exception. Commonwealth v. Kennedy, 135 Mass. 543 (1883). 8. If two persons are jointly indicted for larceny, and one of them pleads guilty, the other cannot be convicted without proof of joint action with the former in the larceny of which he has pleaded guilty. Commonwealth V. Jones, 136 Mass. 173 (1883). 9. A., B., and C. were jointly indicted for larceny. At the trial there was evidence that, after their arrest, A. and B. were placed in adjoining cells; and thereupon A. said to li., " What did you tell the old man " (meaning the owner of the stolen property) " about me?" B. replied, "I told him nothing;" and A. then said, "I guess C. has given us away." B. pleaded guilty, and C. was ac- quitted. Held, that this was not sufficient evidence of any joint action of A. with B. Commonwealth v. Jones, 136 Mass. 173 (1883). 10. If a complaint contains several counts, each charging a distinct larceny of the prop, erty of a different person, it is no ground for a motion to dismiss the complaint, on appeal in the Superior Court, that the record of the lower court shows that, on the complaint being read to the defendant, he was asked whether he was guilty or not guilty of the " offence " charged ; that he pleaded not guilty, and was tried, and convicted " of the offence aforesaid;" and that sentence was imposed " for the offence aforesaid." Commonwealth v. Holmes, 137 Mass. 248 (188i). 11. An indictment, alleging the larceny from the person of " divers promissory notes," (in- tending to charge the larceny of bank-bills,) and of " divers coins of the United States current as money in said Commonwealth," with proper averments of value, ownership, and possession, is sufficient. Commonwealth v. Collins, 138 Mass. 483 (188.5). 12. If an indictment contains several counts, each charging the larceny of property of a different person, the court is not bound to as- sume that the larcenies were one and the same offence, although alleged to have been com- mitted on the same day. Bushman v. Com- monwealth, 138 Mass. 507 (1885). 13. An indictment, alleging the larceny of " divers promissory notes," of a certain value, of the property of a person named, sufficiently charges the larceny of bank-bills. Common- wealth V. Jenks, 138 Mass. 484 (1885). 14. Under an indictment against two per- sons jointly for larceny, one only may be con- victed. Commonwealth v. Jenks, 138 Mass. 484 (1885). 15. An indictment for the larceny of " di- vers promissory notes " is sustained by proof of stealing bank-bills. Commonwealth v. Jenks, 138 Mass. 484 (1885). 16. A. asked B. to bet money as to whether A. or C. would win in shaking dice on a coun- ter. B. produced his money, placing part of it on the counter and keeping the other part in his hand, and bet that A. would be the winner. The dice were not shaken, but A. immediately seized the money, both that on the counter and that in B.'s hand, and ran away with it. Held, that A. was guilty of larceny, and not of fraudulently obtaining property by a game, under the Pub- Sts. c. 203, § 65. Commonwealth v. Jenb:, 138 Mass. 484 (1885). 17. If pigeons are stolen from the house in which they were confined by the owner, and are found in the possession of a person who bought them of another about two weeks after the larceny, the latter may be convicted of such larceny, if his possession of the pigeons is not satisfactorily explained. Commonwealth V. Deegan, 138 Mass. 182 (1884). 18. An indictment, containing three counts, alleged in each count that certain articles, the property of a corporation named, were stolen ; and that afterwards the " goods, chattels, and property aforesaid, so as aforesaid feloniously stolen," were feloniously received by the de- 609 LAW AND FACT, I., 11. 610 fendant, he knowing the same to have been stolen. Held, that the articles in each count alleged to have been feloniously received were the articles in that count alleged to have been stolen. Commonwealth v. Leonard, 140 Mass. 473 (1886). LASCIVIOUS BEHAVIOR. See Lewdness. LAW AND FACT. I. Questions op Law. II. Questions op Fact. See Exceptions, II. As to what is matter of law and what are questions of fact in negligence cases, see Car- KiBK, VIII. pi. 5, 8; Negligence. See also Dog; Judgment, pi. 7; Land- lord and Tenant, pi. 7, 21 ; and other lead- ing titles. I. Questions or Law. 1. The sufficiency of the notice given, un- der the statute, to a city, of an injuiy sus- tained by reason of a defect in a highway, is to be determined by the court. Shea v. Lowell, 132 Mass. 187 (1882). 2. If it is sought to avoid a contract on the ground that it was induced by false and fraud- ulent representations, the question of the ma- teriality of the representations is for the court, and not for the jury. Penn Ins. Co. v. Crane, 134 Mass. 56 (1883). 3. If a servant is injured by the breaking of a rope used in hoisting goods, in conse- quence of the neglect of a fellow servant, who knew of the defective condition of the rope, to supply a new one, in accordance with a duty which the master has imposed upon him, the question whether the f eUow servant acted as a fellow servant merely, or as the repre- sentative of the master, is a question of law, and not of fact. Johnson v. Boston Tow-Boat Co., 135 Mass. 209 (1883). 4. In an action for a breach of the cove- nants in a deed of land, the construction of the deed is for the court. Eddy v. Chace, 140 Mass. 471 (1886). 5. A person to whom a member of a bene- ficiary association, formed under the St. of 1877, c. 204, (Pub. Sts. c. 115, § 8,) is engaged to be married, cannot be said, as matter of law, to be dependent upon such member ; nor can a sister of such member. Ameri- can Legion of Honor v. Perry, 140 Mass. 580 (1886). _ 6. Where the evidence of a foreign law con- sists entirely of a statute, the question of its construction and eifect is for the court. Shoe Sr Leather Bank v. Wood, 142 Mass. 563 C1886). SUPPLEMENT. — 20 II. Questions of Fact. 1. Whether a portable furnace set upon a brick foundation, with the pipes and registers connected therewith, is so placed in a house upon land mortgaged as to become a part of the realty, is a question of fact, or of mixed law and fact, upon which the decision of a judge of the Superior Court, sitting without a jury, is not open to revision on a bill of ex- ceptions. Allen V. Mooney, 130 Mass. 155 (1881). 2. If a deed of a house conveys " all steam- heating apparatus and its connections," the question whether iron screens placed in front of the steam-radiating pipes resting on the floor and kept in position by their own weight, with marble slabs upon them, pass by the deed, is a question of fact for the jury, if the evidence is conflicting on the points whether the screens and slabs formed part of the steam-heating apparatus and its connections; whether the apparatus would be complete without them; whether they were fitted to their places, having regard to the walls near which they stood and the apparatus itself; whether they could be arranged for any other place without disproportionate expense; and whether, if removed, they were worth more than their value as marble and old iron. Leonardo. Stickney, 131 Mass. 541 (1831). 3. On the issue whether a grate and front- piece passed by a deed of a house, there was evidence that the grate and front-piece formed a portion of the fireplace, which consisted of an iron frame fixed in masonry; that the front-piece was adapted to this frame by be- ing cut and notched, although it could be removed, and the grate could be moved by raising the front side of it and thus unhook- ing the horizontal bars which projected into the masonry. Held, that the party contend- ing that the articles in question did not form part of the realty had no ground of exception to the submission of this question to the jury. Leonard v. Stickney, 131 Mass. 541 (1881). 4. A. built four houses upon a lot of land owned by him. No cellars were built under the houses, but there was a vacant space under them below the basement floors. The founda- tion walls ran across this space so that it was substantially enclosed by the walls, and the houses were drained by a line of cement pipe running through the space underneath the floors of all the houses and terminating in a cesspool. Stagnant water was found under the several houses, caused by a leakage or leakages in the above pipe. Four complaints were brought against A., each charging him with permitting waste and stagnant water to stand upon a distinct lot of land. At the trial, the judge declined to rule, as requested by the defendant, that there was only one lot of land and but one offence committed, but instructed the jury that it was a question of fact for them, upon the evidence, whether there was more than one lot of land. Held, that the defendant had no ground of exception. Com- monwealth V. Colby, 128 Mass. 91 (1880). 611 LAW AND FACT, II. 612 5. It is a question of fact, upon the evi- dence, whether a note was given in payment of a pre-existing debt; the presumption that it was is not a conclusive presumption. Dodge V. Emerson, 131 Mass. 467 (1881). 6. At the trial of a writ of entry to foreclose a mortgage of land, given to the demandant by a person who afterwards conveyed the premises to the tenant, who agreed to assume and pay the mortgage, the demandant, who was the only witness, testified that he brought an action on the mortgage note against the mortgagor, who settled the action by paying the demandant a certain sum on the note, which was not indorsed thereon; that there was no agreement whether it should be in- dorsed or not; and that the payment was made with the understanding and agreement that the demandant should foreclose the moi-t- gage, and, if he collected the full amount of the note from the mortgage security, pay back the sum in question to the mortgagor. Held, that the question was one of fact, whether the parties intended that the amount should go in part payment, or was to be applied in payment only in case the whole of the debt should not be obtained from the mortgaged property. Dean v. Toppin, 130 Mass. 517 (1881). 7. In an action on a promissory note to which the defence was payment, it appeared that the plaintiff held certain railroad bonds as collateral security for another note, of which the note in suit was a renewal ; that he sold these bonds by auction, and they were bought by his agent for twenty per cent of their face value. There was also evidence that the plaintiff made an agreement with the assignee in bankruptcy of another party to the first note to allow twenty per cent on the face value of the bonds as their real value, and it was agreed between them that the bonds should be sold by auction for any price above that percentage, and if they sold for less the plaintiff should keep the bonds and allow the percentage agreed upon. The plaintiff con- tended that the sale made was in pursuance of this agreement, and was not an actual sale of the bonds of which the defendant was entitled to avail himself. Held, that a ruling that there was no sale of the bonds by the plaintiff was erroneous; that the question should have been submitted to the jury. Glohe Bank v. Ingalls, 130 Mass. 8 (1880). 8. Where a railroad crossing, in connection with the street which it crosses, has been used by the public as a highway for more than twenty years, the street, during that period, having been kept in repair by the town, and the crossing, during the same period, having been planked and kept in repair by the rail- road corporation, it is a question for the jury, upon all the evidence, whether such use was adverse and under a claim of right, or merely permissive. Fitckburg Railroad v. Page, 131 Mass. 391 (1881). 9. It is for the jury to determine, under proper instructions, whether a person injured by a defect in a highway was mentally or physically incapacitated from seasonably giv- ing the notice required by statute, the evi- dence as to his capacity being conflicting. Welch V. Gardner, 133 Mass. 529 (1882). Compare also Mitchell v. Worcester, 129 Mass' 525 (1880). For a case where, upon an indictment for obstructing a highway, it was held that the question of whether the defendant's structure was an illegal one should have been submit- ted to the jury, see Way. See also Taylor v. Wdburn, 130 Mass. 494, for a discussion as to what was properly sub- mitted to a jury, in an action to recover dam- ages for injuries received from a defect in a highway. 10. In an action for goods sold and deliv- ered, the fact that the goods were charged on the plaintiff's books to a third person is not, as matter of law, conclusive evidence that the defendant is not liable. Bughee v. Kendricken, 132 Mass. 349 (1882). 11. On the issue whether a person author- ized by a mortgagee to sell a mortgaged es- tate had authority to purchase the estate for the mortgagee, there were several letters be- tween the parties, before and after the sale, put in evidence, and there was conflicting testimony of witnesses. Held, that the ques- tion was properly submitted to the jury, and that the court would not have been justified in ruling that the agent was authorized to purchase the estate. Hood v. Adams, 128 Mass. 207 (1880). 12. At the trial of an action against a rail- road corporation for personal injuries occa- sioned to the plaintiff's intestate, by being struck by a locomotive engine, if the evidence is conflicting on the question whether the in- testate survived his injuries, it should be sub- mitted to the jury. Tully v. Fitchburg Rail- road, 134 Mass. 499 (1883). 13. Whether a bank, having deposits stand- ing in the names of two separate persons, which are spelled differently, but pronounced alike, in paying the amount due to one of these depositors, ought to have known or sup- posed that he was the person intended as the defendant in a trustee process served upon the bank, in which his name was spelled like that of the other depositor, is a question of fact, upon which the finding of the Superior Court is not open to revision in this court. White V. Springfield Savings Institution, 134 Mass. 232 (1883). 14. It is, ordinarily, a question of fact for the jury, whether a carrier by delivering a portion of a lot of goods, without insisting upon payment of freight and charges, in- tended to relinquish his lien upon the re- mainder for the whole amount. New Haven §• Northampton Co. v. Campbell, 128 Mass. 104 (1880). 15. The question whether the holder of a promissory note indorsed by a member of a commercial firm with the firm name, in fraud of the firm, took it with knowledge of the want of authority, is a question of fact for the jury, the evidence being conflicting, and the indorsement of such a note being an act within the general authority of a member of 613 LAW AND PACT, 11. 614 such firm. Stimson v. Whitney, 130 Mass. 591 (1881). 16. Upon the issue of a change of domicil, the question of the party's intent, when his testimony is contradicted by other evidence, is one of fact for the jury. Mooar v. Harvey, 128 Mass. 219 (1880). 17. At the trial of an action under Gen. Sts. c. 83, § 18, for taking oysters from a tract claimed by the plaintiff to be covered by a license to him, which purports to describe the tract by metes and bounds, it cannot be ruled, as matter of law, that, upon the face of the license, such tract is not described by metes and bounds. Mitchell v. Hart, 132 Mass. 297 (1882). 18. If a person buys a horse, in reliance upon false representations by the seller that the horse is safe and not afraid of the cars, and is injured by reason of the horse being frightened by the cars, and running, he may maintain an action against the seller for such injuries ; and the facts that the accident did not occur until five weeks after the sale, dur- ing which time the horse had been driven safely on several occasions, and that the horse, after being frightened, ran three fourths of a mile, and then turned from the highway to- wards a place where it had been accustomed to stand, and in so doing overturned the ve- hicle in which the buyer was riding, are not, as matter of law, conclusive that the vice of the horse did not cause the injm-y, but are for the jury. Allen v. Truesdell, 133 Mass. 75 (1883). 19. A. was employed as superintendent of a railroad corporation, at a fixed salary, the employment to be terminated by three months' notice in writing. The corporation leased its railroad for a long term of years to an- other corporation, of which lease A. had notice; and, upon his representation that he had accepted his position supposing it to be permanent, and that the lease would be a damage to him, for which he ought to be compensated, the corporation which employed him voted to pay him a certain sum as extra compensation whenever the lessee should take possession of the road. The lessee took pos- session on a certain day, and the corporation paid to A. the sum so voted, and also his regular salary up to that day. Held, in an action by A. against the corporation for three months' salary from the date when the lessee took possesion, that it was error in the pre- siding judge, who tried the case without a jury, to rule that, as matter of law, A. was entitled to i-ecover, without passing upon the question of fact whether A. , by accepting the extra compensation voted, had not waived his right to the three months' notice provided for in the contract of employment. Nashua §• Lowell Railroad v. Paige, 135 Mass. 145 (1883). 20. In an action for trespass and assault, in ejecting a tenant at will, the defendant justified as agent of a lessee of the premises, testifying that he, as owner, executed and de- livered a written lease of the premises to the lessee, who signed the lease and also a written notice to the plaintiff to vacate the premises, and handed them both to the defendant, say- ing, " Go ahead and get possession." There was no other evidence as to the execution and delivery of the lease and notice, or of the de- fendant's authority to act for the lessee. Held, that the plaintiff was entitled to go to the jury upon the defendant's evidence. Twombly t. Monroe, 136 Mass. 464 (1884). 21. A corporation executed a written agree- ment, promising to pay T. a sum of money " upon the successful working of a metallic packing this day purchased of him." Held, in an action by T. on the agreement, that the " successful working " of the packing, which was a mechanical device to prevent the escape of steam when applied to the piston-rod of an engine, meant its success as such a device, and not as a mercantile adventure ; that the ques- tion whether it worked successfully was one of fact for the jury; and that evidence that it would work only in combination with another device, or that, on a single occasion, it worked successfully when applied to a piston-rod of average quality, would not be conclusive in law to disprove or to prove the fact. Tripp v. New Metallic Packing Co., 137 Mass. 499 (1884). 22. It cannot be ruled, as matter of law, that the use of a velocipede upon a sidewalk of a street is necessarily unlawful. Purple v. Greenfield, 138 Mass. 1 (1884). 28. If the appearance of premises is such as to indicate an open space as the mode of ap- proach to a certain portion thereof, in an action by a person lawfully thereon, for an injury caused by a defect in such open space, the jury would be warranted in finding, from the absence of any marks defining and sep- arating the approach proper from the rest of the space, that the plaintiff was properly where he was injured. Learoyd v. Godfrey, 138 Mass. 315 (1885). 24. At the trial of an action for personal injuries sustained by a boy eight years of age, there was evidence that the defendant was erecting a building in a city under a permit of the inspector of buildings, which permitted the defendant to occupy the whole of the side- walk, under an ordinance of the city which authorized the inspector to grant such a per- mit, and which provided that the space allot- ted should be enclosed by a sufficient fence, and that the person holding the permit should provide a safe and convenient passage around or over the space allotted for public travel, and should be responsible for any injury sus- tained in consequence of any neglect so to do; that the defendant did not enclose the side- walk, or provide a way around or over it; that the defendant had in the building, in close proximity to the sidewalk, a wheel and rope used for hoisting purposes ; that, on the day of the accident, the boy, who had been warned from the premises a short time before the accident, while passing along the sidewalk stopped to speak to another boy who was wrongfully in the cellar of the building; and that, while so stopping, he took hold of the rope for about two minutes, and, the rope 615 LIBEL AND SLANDER, I. ei6 being started, his hand was dra-wn into the ■wheel and injured. Held, that it could not be ruled, as matter of law, that the action could not be maintained. Moynihan v. Whid- den, 143 Mass. 287 (1887). 25. In an action for personal injuries sus- tained by the plaintiff by falling into a coal- hole owned by the defendant, on the issue whether the plaintifE's evidence showed that the cover of the coal-hole was insufficiently guarded, a witness for the plaintifE testified that he saw the coyer immediately after the accident and there was no weight attached to the under side of it; and that, on the night before the accident, he stepped on the cover, and it came off. On cross-examination, he testified that, a month before, he saw, while at a certain place in the cellar, a weight at- tached to the cover. There was other evi- dence for the plaintiff that the cover could not be seen from this place in the cellar. Held, that the issue should have been submitted to the jury. Delory v. Canny, 144 Mass. 445 (1887). LEASE. See Landlord and Tenant. LEGACY. See Devise. LEGISLATURE. See General Court; Constitutional Law. LEWDNESS. An indictment on Gen. Sts. c. 165, § 6, for " open and gross lewdness and lascivious be- havior," is supported by proof that a man intentionally and indecently exposed his per- son, without necessity or reasonable excuse therefor, in the house of another, to a girl eleven years old. Commonwealth v. Wardell, 128 Mass. 52 (1880). LIBEL AND SLANDER. I. Civil Action. (a) Generally. (bj Damages. (c) Evidence. (d) Privileged Communications. n. Indictment. I. Civil Action. (a) Generally. 1. Slanderous words are actionable, although spoken when no one else is present, to a per- son who knows them to be false, and who does not repeat them until after action brought. Marble v. Chapin, 132 Mass. 225 (1882). 2. A declaration for slander alleged that the defendant publicly, falsely, and malicious- ly accused the plaintiff of the crime of adul- tery, by words spoken of him substantially as follows: " H. A. was intimate with his brother's wife for a number of years " (mean- ing thereby that the plaintiff had committed adultery with his brother's wife for a number of years, meaning the wife of L. A.). Held, on demurrer, that the words charged in the declaration as spoken by the defendant were not in themselves actionable; and that the innuendo did not enlarge their natural mean- ing. Adams v. Stone, 131 Mass. 433 (1881). 3. A person who utters a slander is not responsible for its unauthorized repetition by another. Shurtieff v. Parker, 130 Mass. 293 (1881). 4. Under Gen. Sts. c. 129, § 77, which pro- vide that, in a civil action for libel, the de- fendant may upon the trial give in evidence the truth of the matter charged as libellous, " and such evidence shall be deemed a suffi- cient justification, unless malicious intention shall be proved," if a libel is published in a newspaper owned by copartners, all the part- ners are responsible for the express malice of one of them. Lothrop v. Adams, 133 Mass. 471 (1882). 5. In an action for slander, a repetition by the defendant of the slander is admissible to show malice. Hastings v. Stetson, 130 Mass. 7i3 (1881). 6. An article published in a newspaper was headed " The Locust Street Brutality ex- plained," and signed "The Landlord;" stated that " the woman " came to his house on a certain day, engaged rooms at a price named, and left at a certain time, having paid a certain sum; that about three months pre- viously she decided not to come down stairs at all, and was consequently a great deal of trouble ; that he told her if she would leave at a time named and give him a certain sum, he would give her a receipt in full, which she would not do ; and that she kept her door locked, and would not give any satisfaction ; and concluded as follows: " She is not a stranger here, — she never made friends. Can find out all about her by taking a Uttle trouble." Held, in an action by the tenant against the landlord for hbel, that a ruUng, as matter of law, that the publication was not libellous or actionable, was erroneous ; and that the question should have been submitted to the jury. Twombly v. Monroe, 136 Mass. 464(1884). 7. An averment in a declaration for libel, that the alleged libel was published concern- ing the plaintiff, is sufficient to identify with him a person of the same name mentioned with others in the publieatiou. Hurley v. 617 LIBEL AND SLANDER, I. 618 Fall River Publishing Co., 138 Mass. 334 (1885). 8. An article in a newspaper, alleged in a declaration to be a libellous publication con- cerning the plaintiff, was headed, " Was his a 'graveyard' case?" and began as follows: " The death of D., who was buried on Tues- day, has revived the matter of graveyard in- surance. It is reported that several men had policies on his life, knowing when they were issued that he was suffering from consump- tion, which policies, it is alleged, were ob- tained through a fraudulent physical exami- nation by Dr. H." After stating that D.'s father charged his son's death to malpractice on the part of Dr. H., and giving the particu- lars of his illness, it proceeded as follows: " He had been informed that policies on his son's life were held by Dr. H." and several other persons named, including the plaintiff. Held, on demurrer, that the publication con- tained a libel upon the plaintiff. Hurley v. Fall River Publishing Co., 138 Mass. 334 (1885). 9. At the trial of an action for publishing a libel, the plaintiff introduced evidence tend- ing to show that the defendant was concerned as a principal in printing and distributing a large number of copies of a libellous pam- phlet. The jury were instructed, that all of the distinct publications, if any, or if more than one, which they should find to have been made by the defendant, were to be treated by . them as substantiating the allegation of a publication in the declaration; and that all publications that they should find to have been made by the defendant before the writ were to be treated by them as a pubMcation upon which the plaintiff should recover. Held, that the defendant had no ground of excep- tion. Bigelow v. Sprague, 140 Mass. 425 (1886). 10. The publication of an article stating that a dinner furnished by a caterer on a pub- lic occasion was " wretched," and was served " in such a way that even hungry barbarians might justly object," and that "the cigars were simply vile, and the wines not much better," is not actionable, without proof of special damage. Dooling v. Budget Publishing Co., 144 Mass. 258 (1887). 11. If the declaration in an action for slan- der avers that the alleged slanderous words were spoken of the plaintiff, no innuendoes are necessary to apply them, and the absence of such innuendoes does not render the decla- ration demurrable. Young v. Cook, 144 Mass. 38 (1887). 12. The declaration in an action by Jerusha A. Young for slander, and the declaration in another action by Eliza H. Higgins, also for slander, each alleged that the plaintiff was a resident of the town of W. ; that, on a day named, certain workmen, who were engaged in digging on a road in W., discovered, bur- ied in a bank of earth, the body of a child, which had the appearance of having been murdered; that the facts relative thereto were well known by the inhabitants of the town ; that " it then was the common belief of the town authorities and of said inhabitants that said infant had been brutally murdered by some person or persons, and had been surrep- titiously buried in said bank of earth, for the purpose of concealing the commission of the crime;" that "the defendant, with the in- tent to cause it to be believed that the plain- tiff was a party to the murder and burial of said infant, and also with the intent to bring the plaintiff into hatred, contempt, and dis- grace, and also with the intent to incite and instigate criminal proceedings against her. and thereby to cause her mental and physical suffering and great pecuniary expense, and with the intent to injure her mentally and physically, did, on divers times, in presence of divers persons, and in divers places, pub- licly, falsely, and maliciously accuse the plain- tiff of being a participant in the murder and burial of said infant, by words spoken of and concerning the plaintiff substantially as fol- lows: ' That child is Aunt Jerusha's, and Eliza Higgins took it away ; ' ' It is my opin- ion that Jerusha Young had that child, and Eliza Higgins took it away ; ' ' In my opinion that child belonged to Aunt Jerusha, and Eliza Higgins was her aid ; ' ' In my opinion Jerusha Young had that baby, and Eliza Hig- gins buried it; ' ' My boy told me that Liza Higgins had that young one in her cellar two or three days, and he says that B. told him so; ' " and that, in consequence of the vile and slanderous statements of the defendant, she became an object of suspicion to the au- thorities of W. and to the inhabitants thereof, causing her great mental and bodily suffering and serious damage to her reputation. Held, that the declaration in each case was insuffi- cient, in failing to show how the alleged slan- derous words imputed the commission of a crime to the plaintiff. Young v. Cook, 144 Mass. 38 (1887.) (b) Damages. 1. In an action for libel, evidence of par- ticular instances of misconduct on the part of the plaintiff is inadmissible in mitigation of damages. McLaughlin v. Cowley, 131 Mass. 70 (1881). 2. In an action of slander, in accusing the plaintiff of having stolen from a former em- ployer, evidence of the plaintiff's general reputation as to his having stolen from his employer, both at the time he was in his em- ploy and at the time of the alleged slander, is inadmissible in mitigation of damages. Ma- honey V. Belford, 132 Mass. 393 (1882). 3. In an action for slander, evidence of the bad character of the defendant is inadmissi- ble in mitigation of damages. Hastings v. Stetson, 130 Mass. 76 (1881). 4. In an action for slander, the plaintiff may recover damages for the mental distress naturally resulting from the publication of the slander. Hastings v. Stetson, 130 Mass. 76 (1881). 5. In an action for slander, in accusing the plaintiff of having stolen from his employer, during an angry (Uspute at an election in the 619 LIBEL AND SLANDER, II. 620 presence of from twenty to sixty persons, the mental sufEering of the plaintiS is an element of damage. Mahoney v. Belford, 132 Mass. 393 (1882). 6. In an action for libel, the defendant asked the judge to instruct the jury that, if the charges proved were of such a nature or character that the existence of those not proved, if any, would not affect the plaintiff, he could recover only nominal damages. The judge instructed the jury that, if they should find that some of the charges were true and some not true, they should give the plaintiff only such damages as he had proved that he had sustained solely by reason of those that were not true. Held, that the defendant had no ground of exception. Lothrop v. Adams, 133 Mass. 471 (1882). (c) Evidence. 1. In an action for a libel published in a newspaper, the defendant is not entitled, for the purpose of showing that he had no mali- cious intention, to prov- that there were re- ports in circulation, similar to those contained in the newspaper, before the publication of the libel, without showing that he knew of such reports. Lothrop v. Adams, 133 Mass, 471 (1882). 2. In an action for libel, in charging the plaintiff with cruelly treating one of his chil- dren, the defendant put in evidence that the plaintiff had whipped a daughter. The plain- tiff then testified that he whipped her because he believed that she had been stealing. Held, that the defendant had no ground of excep- tion to the refusal of the judge to allow him to show that the daughter had not in fact been guilty of stealing. Lothrop v. Adams, 133 Mass. 471 (1882). As to evidence admissible as part of the res gestcB, see EviDjiNCE, VI. pi. 1. In an action of slander, the plaintiff may testify to mental suffering caused to him by the publication of the slander, although dam- ages for such suffering are not specifically al- leged in the declaration. Chesley v. Tompson, 137 Mass. 136 (1884). 3. In an action for libel, for calling T. W. (meaning the plaintiff) a thief, a bill of exceptions tendered by the defendant was allowed, which stated that, evidence of pub- lication by the defendant being put in, the plaintiff was allowed, against the objection and exception of the defendant, to ask wit- nesses, " Who did you understand was meant in the statement published by the defend- ant?" and that they answered, "The plain- tiff." Held, that the defendant did not show any ground of exception Wilson v. Fall Ricer Herald Publishing Co., 143 Mass. 581 (1887). (d) Privileged Communications. 1. Although a newspaper has the right to publish a fair report of the proceedings before an ecclesiastical tribunal, yet if a report in a newspaper contains defamatory matter, and does not purport to be a full report of the proceedings, and the answer to an action of libel based upon such report does not set up the defence of privilege, the report cannot be treated as privileged. Lothrop v. Adams, 133 Mass. 471 (1882). 2. A letter to a member of an association of ministers, containing libellous matter con- cerning another member, and written by a minister not a member of the association, is not a privileged communication. Shurtleff v Parker, 130 Mass. 293 (1881). 3. A defamatory statement contained in the declaration in an action, signed by coun- sel, if not pertinent or material to the issue, is not privileged; and, in an action of libel against the counsel, he cannot justify by show- ing his belief that it was true, the sources of his information, or his instructions from his client. McLaughlin v. Cowley, 131 Mass. 70 (1881). 4. If a person, who has been accused by his employer of stealing money from him, informs a friend of the accusation and seeks his ad- vice, and the latter has an interview with the employer, in which he informs him of the grounds of the charge, and during which the accused person comes in and begins a con- versation with his employer, referring to the charge of larceny, whereupon the employer repeats the accusation, the third person still being present, the occasion renders the words privileged. Billings v. Fairlariks, 186 Mass. 177 (1883). 5. The publication in a newspaper of the contents of a petition for the removal of an attorney from the bar, filed in the ofBce of the clerk of this court in vacation, but which has not been presented to the court or entered on the docket, and which includes actionable allegations unless justified, although the pub- lication is a fair and correct report of the peti- tion, is not privileged. Cowley v. Pulsifer, 137 Mass. 392 (1884). 6. If an employer, on an occasion which renders the words privileged, accuses his em- ployee, in the presence of a third person, of stealing money from him, the fact that the employer does not have a full belief that the employee is guilty does not render the words the less privileged, if he honestly suspects him of committing the crime. JBillings v. Fairbanks, 139 Mass. 66 (1885). II. Indictment. 1. An indictment alleged that the defend- ant, " contriving and unlawfully and mali- ciously intending to injure, vilify, and prejudice one S., and to deprive him of his good name, fame, credit, and reputation, and to bring him into great contempt, scandal, infamy, and disgrace, he the said S. being then and there sheriff of the county of W., and also keeper of the jail and house of cor- rection at W., unlawfully and maliciously did publish, and cause and procure to be published, a false, scandalous, malicious, and defamatory libel, containing divers false, 621 LICENSE. 622 scandalous, malicious, and defamatory mat- ters and things of and concerning the said S." Held, that the indictment alleged a libel upon S. in his private, and not in his official capacity. Commonwealth v. Wardwell, 136 Mass. 164(1883). 2. An alleged libel upon a person holding a public office charged him with being "an untruthful man," " a profane man," " a libertine; " with "ruining a young and inno- cent lady; " with " boasting of the influence of his office, money, and friends being suffi- cient to crush any one who should attempt to expose him ; " and with drawing " a pistol on a virtuous Christian lady, in the presence of men and women, for no cause other than ex- posing him in a crime which would send him to the state prison as a criminal." Held, that these charges related to the person named in his private, and not in his official capacity. Commonwealth v. Wardwell, 136 Mass. 164 (1883). 3. A communication containing charges against the private character of a person hold- ing a public elective office, published more than a year before the occurrence of the next election, although he has not disclaimed his intention to be a candidate for re-election, is not made upon a privileged occasion, and is not prima facie privileged. Commonwealth v. Wardwell, 136 Mass. 164 (1883). 4. At the trial of an indictment for libel, in publishing a communication containing charges against the private character of a per- son holding a public elective office, the good faith of the defendant in making the publi- cation has no tendency to show that it was made upon a privileged occasion ; and, if the presiding judge decides that the occasion was not such as to render the publication privi- leged, he is not required to make any assump- tion as to the defendant's good faith. Com- monwealth V. Wardwell, 136 Mass. 164 (1883). 5. An indictment alleged that the defend- ant, who was the publisher of a newspaper, published a libel upon H., who was the mar- shal of a certain city, consisting of a letter written to the defendant by a third person, the material parts of which were as follows: "'i'he writer of this article hired recently a stand at the corner of E. and C. Streets, for the sale of flowers, for a season of about two months. After locating I was instructed by Marshal H. (meaning thereby the said H.) and threatened with prosecution. It is well known that this corner has been occupied for years by parties, and some not citizens, who have obstructed the sidewalk more or less, yet they have carried on their business unmo- lested. There are a dozen or more parties, not far from the police station, who obstruct a great portion of sidewalks every day, and they are allowed so to do. Yet the narrow shelf located on this corner, that I hired to do a legitimate business and which would con- tain nothing but flowers, at once an ornament and no obstruction whatever, was obnoxious to this official (meaning thereby the said H.). Why this partiaUty? Does it require the presentation of a turkey, potatoes, flowers, a gold watch, or other perquisites, quietly de- livered, to close the eye of this vigilant official (meaning thereby that the said H. had been bribed by offenders against the law to neglect his official duty as city marshal) in every particular case? If so, I am not so disposed in such cases." Held, that the publication. particular case ? in such cases." even if the innuendo be considered too broad, conveyed the imputation that H., as city mar- shal, received presents for permitting persons to occupy the sidewalks of the city ; and that he threatened the defendant with prosecution for obstructing the sidewalk, maliciously, and because he had received no presents from him. Commonwealth v. Damon, 136 Mass. 441 (1884). 6. At the trial of an indictment against the publisher of a newspaper for libel, if the truth of the matters contained in the alleged libel, evidence of which is offered, is estab- lished, the government must show that the defendant, in a legal sense, actually partici- pated in, or authorized, the publication, and that he did this with an actual malicious in- tention. Commonwealth v. Damon, 136 Mass. 441 (1884). 7. At the trial of an indictment against the publisher of a newspaper for libel, who offered evidence of the truth of the statements in the alleged libel, the judge instructed the jury that, " if the truth of the article is established as claimed by the defendant, it is a perfect and complete defence, unless express maUce in the publication is shown, — maUce in the popular sense of hatred and ill-will." Held, that the defendant had no ground of excep- tion. Commonwealth v. Damon, 136 Mass. 441 (1884). 8. At the trial of an indictment against the publisher of a newspaper for libel, who offers evidence of the truth of the statements in the alleged libel, other pubUcations in the same paper, if they tend to show general ill-will towards the person alleged to have been libelled, and are of such a nature as to indi- cate a persistent disposition of hatred towards him, or if they appear to be a part of a settled purpose to bring him into public hatred, con- tempt, or ridicule, and are sufficiently near in time to afford a natural inference that the same state of mind existed when the alleged libellous publication was made, are admissi- ble in evidence, although they are published subsequently to the alleged libel, and do not expressly refer to it. Commonwealth v. Da- mon, 136 Mass. 441 (1884). , LICENSE. For liability for negligence to one entering upon land by implied license or invitation, see Action, I. (a), pi. 1. As to licenses to executors, &c., for the sale of real estate, see Executor, V. ; , Guardian. As to licenses for keeping dogs, see Dog. As to license for keeping a pool table, see Pool. 623 LIEN, I. 624 As to licenses for the sale of spirituous and intoxicating liquors, see Spirituous Liquors. See also Constitutional Law ; Law and Fact, II. pi. 17; Steam-Engine. 1. A licensee, under a parol license from the owner of land, of a well, and an hydrau- lic ram thereon, cannot maintain a petition for damages against a city for an interference with the use of the well and ram, by the tak- ing of the land by the city for a highway. Clapp V. Boston, 133 Mass. 867 (1882). 2. The owner of a building, in which there was a hall, agreed orally with A. to permit him to use the hall for dancing parties on the afternoons of four holidays named, a stipu- lated price for each afternoon. Held, that the contract was for a license, and not for the sale of an interest in land, within the statute of frauds ; and that A. could maintain an action against the owner of the building for a breach of the contract. Johnson v. Wilkinson, 139 Mass. 3 (1885). 3. The parties to a policy of insurance, in the form prescribed by the Pub. Sts. c. 119, § 139, after a loss by fire, entered into an agreement to submit to referees the appraisal and estimate of the damage by fire to the in- sured property, which provided that the award should have no reference to any other question or matter of difference, and should be "of binding effect only so far as regards the actual cash value of, or damage to, such property." Before payment of the amount awarded by the referees, the assured brought an action upon the policy. Held, that the action was properly brought upon the policy, and not upon the award. Soars v. Home Ins. Co., 140 Mass. .343 (1885). 4. A license was duly granted to A. and B. , under the Pub. Sts. c. 102, § 111, to keep a billiard or pool table or a bowling alley, for hire. B. had then retired from the business; and A., during the term of the license, ob- tained insurance in his own name upon the property. Held, in an action by A. upon the policy, that the license was valid. Hinckley V. Germania Ins. Co., 140 Mass. 38 (1885). 5. Mandamus will not lie to compel the mayor of a city to sign a license, granted by the board of aldermen of the city to the petitioner, to be a common victualler., if the mayor is not satisfied that the petitioner has complied with all the provisions of the Pub. Sts. c. 102, § 8, so as to entitle him to a license. Deehan v. Johnson, 141 Mass. 23 (1886). 6. A parol license by a town to a person to place a gate on a public way does not include an authority to keep the gate locked, with the key in his possession. Commonwealth v. Carr, 143 Mass. 84 (1886). 7. If A., the owner of a parcel of land, agrees with B. that B. may take gravel from the land at a certain price per cubic yard, and A. afterwards makes a deed of the laud, this does not operate as a revocation of the license to 6. to enter upon the land, if the deed is colorable, and A. remains in possession and control of the land ; and A. may maintain an action for gravel taken from the land by B. after the conveyance. Barry v. Worcester 143 Mass. 476 (1887). LIEN. I. In General. II. Mechanic's Lien. III. Material-men's Lien on Vessels, by Statute. See also Attachment; Attorney; Car- rier; Collateral Security; Execution; Pilot; Pledge; Sale; Warehouseman. I. In General. 1. If a corporation has a lien on stock for a debt due the corporation from a stockholder, it is not estopped to assert such lieu by the fact, that, on the stockholder's presenting the certificate for transfer to the person in charge of the transfer-book, the latter promised to make the transfer and issue a new certificate as soon as a certain officer returned. Bishop V. Globe Co., 135 Mass. 132 (1883). 2. If, by the law of the State under which a corporation is organized, the corporation has a lien on the stock of any shareholder for a debt due from him to the corporation, such lien is a good defence to an action in another State against the corporation by a person to whom the shareholder has transferred the stock. Bishop v. Globe Co., 135 Mass. 132 (1883). 3. A. boarded his horse at B.'s stable, his custom being to take the horse from the stable each day and use it in his business, and return it to the stable at night. On one occasion, a certain sum being due B. for the horse's board, A. did not return the horse to the stable as usual, and B., upon finding the horse in A.'s possession about three weeks afterwards, took possession of the horse under a claim of a lien upon it, and left it in charge of his agent, who, with A., was to return the horse to the stable on the next day. On that day, A. told B.'s agent that he had concluded not to take the horse to B., but was going to see him. B.'s agent returned with A., leaving the horse behind. A. offered B. a certain sum in settle- ment of his claim, which he refused to accept, ' and A. then promised to send the horse to B. on the next day, which he did not do. Held, on a petition to enforce a lien upon the horsQ, under the Pub. Sts. c. 192, § 32, that there was evidence that B. had waived his lien. Papineau v. Wentworth, 136 Mass. 543 (1884). 4. If a mortgagor in possession of personal property removes and stores it with a third person, who has no actual notice of the mort- gage, .which is recorded, the mortgagee, who afterwards is informed of the removal and storing, and expresses no disapproval of the same, is not Uable to such. person for the charges for storage, although the storage is necessary for the preservation of the property, 625 LIEN, II. 626 but may maintain an action against him for its conversion. Storms v. Smith, 137 Mass. 201 (1884). 5. If a horse which is boarded at a livery stable is allowed by the stable keeper to be used by its owner in his business, and is sold by the owner, without the knowledge of the stable keeper, while the horse is away from the stable, the stable keeper loses his lien; and he cannot regain it by taking the horse from the possession of the purchaser. Vinal V. Spofford, 139 Mass. 126 (1885). 6. If the owners of a jSshing vessel have a lien on the catch for money expended for bait, such money, may be insured under the term "advances." Burnhamv. Boston Marine Ins. Co., 139 Mass. 399 (1885). 7. If A. knows or believes that B., in good faith, claims goods as the consignee of a sup- posed owner other than A., and, believing him- self to be the owner and intending to claim the goods, stands by and permits B. to pay customs duties upon the goods without dis- closing his claim, and with the intention of replevying the goods after the duties are paid, B. acquires an equitable lien upon the goods, which he is entitled to have discharged before A. can obtain possession of them ; and such lien is not waived or lost by the refusal of B. to surrender the goods without placing his refusal on the ground of lien. Fowler v. Parsons, 143 Mass. 401 (1887). II. Mechanic's Lien. 1. A general employment of a carpenter by a contractor, to work in getting out finish for the buildings of two different persons in pro- cess of erection at day's wages to be afterwards fixed, is a sufficiently definite contract for the foundation of a mechanic's lien, under Gen. Sts. c. 150, by the carpenter for the labor performed on the finish for one of the build- ings. Wilson V. Sleeper, 131 Mass. 177 (1881). 2. A mechanic's lien may be maintained, under Gen. Sts. c. 150, for labor performed away from the premises on which the lien is claimed, in preparing material which is in- tended for use, and actually used, in the con- struction of a building upon the premises. Wilson V. Sleeper, 131 Mass. 177 (1881). 3. On a petition to enforce a mechanic's lien, it appeared that the respondent agreed to convey a parcel of land to a person on con- dition that the latter should build a house upon the land within a certain time. This person made a contract with the petitioner to build a cellar wall warranted to stand. The wall was completed, but was afterwards in- jured by the action of the frost, and was re- paired by the petitioner after his employer's authority to bind the respondent had ceased. The petitioner filed his statement of lien more than thirty days after he completed the wall, and within thirty days after he made the re- pairs. Held, that, if he made the repairs without the authority of the respondent, he could not enforce his lien; otherwise, if he acted in good faith to fulfil his warranty, at the request of the respondent, the latter hav- ing knowledge of the terms of the contract under which the wall was built. Worthen v. Cleaveland, 129 Mass. 570 (1880). 4. C. performed labor and furnished mate- rials under a contract with B., for an entire price, in the erection of four buildings, one of whichi was on land owned by B , one on land owned by A., and the others on land the own- ership of which did not appear. He then filed a petition, under Gen. Sts. c. 150, as amended by St. 1872, o. 318, to enforce a lien on the house and land of A. for the labor per- formed by him on that house, and at the trial showed what such labor was worth. Held, that the petition could not be maintained; that St. 1872 simply extended provisions of law then existing, and was not designed to abrogate contracts, and, by its own force, to create a lien upon any building for labor per- formed upon it, the price thereof to be quan- tum valebat. Childs v. Anderson, 128 Mass. 108 (1880). 5. At the trial of a petition to enforce a me- chanic's lien upon land, under Gen. Sts. o. 150, it appeared that in the certificate of lien the respondent was alleged to be the owner of the land; that, before the contract with the petitioner was made, the respondent, who had then merely a bond for a deed of the land, borrowed a sum of money from his daughter, and told her he would give her a deed when he got one, and secure her on the place ; that, after he got his deed, without her knowledge, he caused a deed, conveying the land to her absolutely, to be executed and recorded, and subsequently told her that a deed had been made; but there was no evidence that she ever had possession of the deed or of the land, or knew of the form or contents of the deed; and that the petitioner had knowledge of the deed when he filed his certificate of lien. Held, that this evidence would warrant a find- ing for the respondent. Amidony. Benjamin, 128 Mass. 534 (1880). 6. A person who furnishes materials, at dif- ferent times, under one contract, in the erec- tion of a building, loses his lien, under Gen. Sts. c. 150, § 5, if he neglects to file his state- ment of the amount due him within thirty days after the last item is furnished which is actually used in the erection of the building. Gale V. BlaOde, 129 Mass. 206 (1880). 7. If a petition to enforce a mechanic's lien, under Gen. Sts. c. 150, is filed in vacar tion, the order of notice issued under St. 1871, c. 78, need not be made returnable at the next term. Worthen v. Cleaveland, 129 Mass. 570 (1880). 8. N. conveyed land, by warranty deed, to B. , who mortgaged back the land to N. They also entered into a written agreement, which recited the conveyance and the mortgage; that the mortgage was made in contemplation of the erection by B. of a building on the land, and of an advance of money by N. to B. in consideration of the mortgage, the price of the land forming the remainder of the consid- eration ; that B. agreed to erect and complete the building within a time named; that, upon 627 LIEN, II. 628 default by B., N. might complete the building at B.'s expense, all sums so expended to be considered as secured by the mortgage ; and that any liens claimed on the building and land might be settled by N. , and any sums so paid should be charged as advances under the mortgage. The deed, mortgage, and agree- ment were executed and delivered at the same time, ■which was seven days after their date, and as parts of the same transaction. Be- tween the time of such date and delivery, B., without the authority of N., hired E. to work on the building to be erected, and E. contin- ued such labor for two months, when he ceased, and seasonably filed a certificate of lien therefor, and prosecuted a petition to en- force the same. The mortgage was previously assigned by N. to a person who had no notice of the agreement between B. and N., and who foreclosed the same ; and the title, by mesne conveyances, became vested in N., who de- fended the petition. Held, that the petition could not be maintained. EUridge v. Bassett, 136 Mass. 314 (1884). 9. Under the Pub. Sts. c. 191, no lien can be maintained on several lots of land, for a general balance of an account due for labor performed, under an entire contract, partly on the land described in the petition, and partly on other land owned by the same per- son. Rice V. Nantasket Co., 140 Mass. 256 (1885). 10. Under the Pub. Sts. c. 191, no lien can be maintained for labor performed in hauling lumber and sand to the premises upon which the lien is sought to be enforced, although the lumber and sand are intended to be used in the construction of a house, and portions of them are actually so used. Webster v. Real Estate Improvement Co., 140 Mass. 526 (1886). 11. A. was employed by B., who had con- tracts for building houses for C. and others, to work thereon. A. worked upon the differ- ent houses, and B. paid him money from time to time on account of his work generally, but no account was kept of his work on the dif- ferent houses, and no application of any pay- ment was made for labor on any specific house. B. failed, owing A. a certain sum. Held, that the payments by B. to A. should be applied to the earlier items of the account ; and that A. could maintain a petition against C, under the Pub. Sts. c. 191, to enforce a lien for so much of his labor as was performed upon C.'s house, and which had not been paid for, but not for such as was upon the houses of others. Sexton v. Weaver, 141 Mass. 273 (1886). 12. It is no objection to the sufficiency of the statement of account of the amount due a person seeking to enforce a mechanic's lien, under the Pub. Sts. c. 191, that it gives the total number of days' labor between two dates named, without specifying the days on which the labor was performed ; nor that it does not include all the labor performed by him upon the premises on which the lien is sought to be enforced, with credits for pay- ments admitted to have been made, if it does not include any labor for which payment is not claimed. Sexton v. Weaver, 141 Mass. 273 (1886). 13. If a mechanic works on several houses, at day's wages, and is paid by his employer, from time to time, sums of money on account, the fact that, in filing a hen statement for work done on one of the houses, he incor- rectly states the amount due him owing to a mistake on his part of the proper way of appropriating the payments, does not prevent his maintaining a lien, under the Pub. Sts. c. 191, if he does not wilfully and knowingly claim more than is due. Sexton v. Weaver, 141 Mass. 273 (1886). 14. A petition, under the Pub. Sts. c. 191, to enforce a mechanic's lien, brought by one creditor, in which another creditor, who is served with notice thereof, does not appear, and which is prosecuted to judgment for the respondent, is no bar to a petition, subse- quently filed, by such other creditor, to en- force a lien upon the same property. Sexton V. Weaver. 141 Mass. 273 (1886). 15. At the trial of a petition to enforce a mechanic's lien, under the Pub. Sts. c. 191, it is a question of fact whether a promissory note received by the petitioner from his em- ployer was payment pro tanto. Casey v. Wea- ver, 141 Mass. 280 (1886). 16. At the trial of a petition to enforce a mechanic's lien, under the Pub. Sts. c. 191, if the finding is for the petitioner, interest from the date of the petition is properly included. Casey v. Weaver, 141 Mass. 280 (1886). 17. If an entire contract is made for labor and materials, and a part payment is made, before any is due, to enable payment to be made for materials provided, no agreement can be inferred from these facts that the part payment shall not go in reduction of the amount of lien which may exist for labor performed. Casey v. Weaver, 141 Mass. 280 (1886). IS. If a person has furnished labor and materials, in the construction of a house for an entire price, to be paid on the completion of the contract, and has given no notice of his intention to claim a lien for the materials, and can distinctly show what the labor was worth, he may enforce a lien, under the Pub. Sts. c. 191, § 2, for the labor alone, hmited by the contract price, although a partial pay- ment has been made under the contract. Casey v. Weaver, 141 Mass, 280 (1886). 19. A drain-pipe, extending from the cellar of a house in a city through the cellar wall, yard, and street into a sewer, and included in the contract for building the house, which is fitted for the use of the city water, is a part of the house, for the laying of which a lien, under the Pub. Sts. c. 191, may be main- tained ; and it is immaterial that the fee of the street is not in the owner of the house. Beatty v. Parker, 141 Mass. 523 (1886). 20. The owner of land made a contract with A. to erect a house for him, including the laying of a drain-pipe. A. contracted with B. to lay the pipe at a fixed price, and B. employed C. to do a part of the work and 1 furnish the materials therefor. C.'s employ- 629 LIEN, III. 630 ment was known to A. Held, that C. could maintain a lien, under the Pub. Sts. c. 191, for the work and materials so furnished by him. Beatty v. Parker, 141 Mass. 523 (1886). 21. A person, who furnishes lumber at a certain price per thousand feet, at different times, under an entire contract, in the erection of a building, loses his lien, under the Pub. Sts. 0. 191, § 6, if he neglects to file his state- ment of the amount due him within thirty days after the last item is furnished which is actnally used in the erection of the building. Kennebec Framing Co. v. Pickering, 142 Mass. 80 (1886). 22. A petition for a mechanic's lien, under the Pub. Sts. c. 191, cannot be maintained for work done in making slight changes in a building, which is merely incidental to work in putting in a machine which is personal property, nor for the work on the machine. Curnew v. Lee, 143 Mass. 105 (1886). 23. It is no objection to the validity of a certificate of account, offered in evidence at the trial of a petition to enforce a mechanic's lien, that the oath to the certificate was ad- ministered by a magistrate who was at the time the attorney of the petitioner. McDon- ald V. Willis, 143 Mass. 452 (1887). 24. A statement, filed in the registry of deeds, by a person claiming a mechanic's lien, and subscribed and sworn to by him, in accordance with the Pub. Sts. c. 191, § 6, is not invalidated by the omission of the magistrate by whom the oath was administered to add the title of his office after his signature; and evidence is admissible to show that he held such office at the time he administered the oath. Jackman v. Gloucester, 143 Mass. 380 (1887). 25. If A., supposing that B. owns certain land, enters into a contract under seal with him to build a house on the land, to be paid for by three promissory notes of B., and, be- fore the contract is completed, ascertains that the land belongs to C, and, being induced by fraudulent statements of C. as to B.'s finan- cial ability, completes the contract, all of the notes having been tendered and two of them accepted by A., he cannot then rescind the contract and maintain a petition against C. to enforce a rnechanic's lien, under the Pub. Sts. c. 191, on the ground of an implied contract on the part of C. coexistent with the contract with B. Ellenwood v. Burgess, 144 Mass. 534 (1887). 26. If a person has furnished labor and materials, in the construction of a house, under an entire contract with a person not the owner of the land, and has given no no- tice to the owner of his intention to claim a lien for the materials, and cannot distinctly show what the labor was worth, he cannot enforce a mechanic's lien, under the Pub. Sts. c. 191, for either the materials or the labor. Ellenwood v. Burgess, 144 Mass. 534 (1887). 27. A mechanic's lien cannot be enforced, under the Pub. Sts. c. 191, for the amount in which land has been enhanced in value by the labor and materials expended upon it by the petitioner. Ellenwood v. Burgess, 144 Mass. 534 (1887V 28. If A., supposing that B. owns certain land, enters into a contract under seal with B. to build a house on the land, and, before the contract is completed, ascertains that the land belongs to C, and, being induced by the fraudulent statements of C. as to B. 's finan- cial ability, completes the contract, A. cannot then rescind the contract and maintain a pe- tition against C. to enforce a mechanic's lien, under the Pub. Sts. c. 191, to the preju- dice of a person, who, in good faith and for a full consideration, has taken a mortgage of the land while the contract was in^ force. Ellenwood v. Burgess, 144 Mass. 534 (1887). See also Removal of Suits, pi. 1. III. Material-men's Lien on Vessels, BY Statute. 1. The builder of a vessel made an agree- ment with A. , who had worked on the vessel for wages, that, when she was finished, A. should furnish sails, which were to remain A.'s property; and that A. should use her and give the builder a portion of her earn- ings. A. , falsely representing that he owned the hull, made a contract with a sailmaker, under which the sails were furnished, and A. used the vessel under the agreement with the builder. Held, that the sailmaker could not maintain a petition, under Gen. Sts. c. 151, §§ 12, 13, to enforce a lien against the vessel. Bates V. Emery, 134 Mass. 186 (1883). 2. A. employed B. to make repairs upon a coasting vessel of which A. was the master. The repairs were made in a home port, from which the vessel afterwards departed, and B. filed no statement of his claim for such re- pairs, under the Gen. Sts. c. 151, § 13. C, more than a year later, became the owner of the vessel, and advertised it for sale by auc- tion. B. then demanded of C. payment for the work he had done upon the vessel, and threatened to proceed to enforce by legal means the lien which he claimed to have upon it, unless C. would pay or secure his claim. C. to induce B. to forbear legal pro- ceedings, promised to pay his claim, if it was one for which he could maintain a lien which could be enforced against the vessel; and B. forbore all legal proceedings. Held, that B. had lost his lien, and could not maintain an action against C. Dunham v. Johnson, 135 Mass. 310 (1885'). 3. If the hull and spars of a vessel are completed at one port, and sufficient rigging is put on her, and a sufficient cargo for the necessary ballast is taken, to enable her to go to another port, where materials necessary to the rigging and equipment of a vessel, and the first put upon her, are procured, the ma- terials so furnished at the latter port are fur- nished in the " construction " of the ves-sel, within the Gen. Sts. c. 151, § 12. McDonald V. The Nimbus, 137 Mass. 360 (1884). 4. No lien can be enforced, under the Gen. Sts. c. 151, §§ 12-15, for materials furnished 631 LIMITATION OF ACTIONS, I. 632 in this Commonwealth, in the construction of a vessel at a port in another State. Mc- Donald V. The Nimbus, 137 Mass. 360 (1884). 5. A lien upon a vessel, under the Gen. Sts. c. 151, § 12, for materials furnished in her construction, is not invalidated hy including articles for which no lien attaches, or by an error in the addition of the amounts of the items, in the statement filed in the clerk's oflRce of the city where the materials are fur- nished, if the claimant has not "wilfully and knowingly claimed more than is due." McDonald v. The Nimbus, 137 Mass. 360 (1884). 6. A statement of a claim of a lien for materials furnished in the construction of a vessel was filed, under the Gen. Sts. c. 151, §§ 12, 13, within four days after the first de- parture of the vessel from the port where the materials were furnished. During the next two and a half years, the vessel came into that port on several occasions, to the knowl- edge of the person claiming the lien; but he did not file his petition to enforce the lien until four and a half years after such first de- parture, and after the vessel had been sold. Held, that the petition was seasonably filed. McDonald v. The Nimbus, 137 Mass. 360 (1884). LIFE INSURANCE. See Iksuhance, III. LIFE TENANT. See Capital and Income; Devise; Pekpetuity; Trust. LIGHT AND AIR. See Easement; Prescription. LIMITATION OF ACTIONS. I. General Rules op Limitation. II. Extension or Avoidance of the Limitation. in. When the Limitation commences ; Computation op Time. IV. Pleadings ; Evidence ; Practice. For acquisition of easements by prescrip- tion, see Prescription. As to the limitation of petitions for dama- ges brought under special statutes concerning waterworks, see Waterworks. See also Bills and Notes, I. pi. 2; Domi- ciL ; Heirs. I. General Rules of Limitation. 1. Under U. S. Rev. Sts. § 5057, an action by an assignee in bankruptcy to collect a debt due to the estate must be brought within two years from the time when the cause of action accrued to the assignee. Ross v. Wilcox, 134 Mass. 21 (1883). 2. An action against a town for the amount of a bounty voted to the plaintiff, more than six years before the action was begun, in con- sideration of his enlisting on the quota of the town in the military service of the United States, is barred by the general statute of lim- itations, the same being upon a " contract or liability not under seal." Sturtevant v. Pem- broke, 130 Mass. 373 (1881). 3. In an action for a malicious prosecution, the plaintiff may recover damages for Lis imprisonment upon a warrant, although the action is brought after the time when by the statute of limitations an action for false imprisonment would be barred. Graves v. Dawson, 133 Mass. 419 (1882). 4. The holder of a m.ortgage of land as- signed it as security for his own promissory note. There being a breach of the condition of the mortgage and of the assignment, the assignee brought an action to foreclose the mortgage, obtained conditional judgment for the amount of the debt due from the assignor, and on an execution obtained seisin and pos- session of the land. After retaining posses- sion for three years, the assignee sold the land. Held, that a bUl in equity by the as- signor to redeem the laud, brought within twenty years from such sale, but more than twenty years after possession was obtained, could not be maintained. Stevens v. Dedham Savings Institution, 129 Mass. 547 (1880). 5. Gen. Sts. c. 85, § 1, so far as it author- izes a third person to recover treble the value of money lost by gaming, is a penal statute; and by Gen. Sts. c. 155, § 20, an action by such third person is barred, if not brought within one year after the date of the loss. Cole V. Groves, 134 Mass. 471 (1883). 6. If suit is brought upon a note, and the forfeiture of interest provided by U. S. Rev. Sts. § 5198, where a national bank has re- ceived a greater rate of interest than is al- lowed by the laws of the State where the note was made, in violation of § 5197, is sought to be availed of by way of defence, such defence is not limited to two years after the unlawful receiving of interest; the limitation of two years applies to the time within which an ac- tion must be brought to recover back twice the amount of unlawful interest paid. Peter- borough Bank-7. Childs, 130 Mass. 519 (1881); Same v. Same, 133 Mass. 253 (1882). 7. A creditor who recovers a judgment against an executor in an action upon a debt due from the testator, brought within the two years limited by Gen. Sts. c. 97, § 5, is not entitled, the execution issued on the judg- ment not being satisfied, to bring an action upon the judgment after the expiration of the two years, although the bond given bj the executor, who is also residuary legatee, is one 633 LIMITATION OP ACTIONS, II. 634 conditioned to pay debts and legacies. Jen- kins V. Wood, 134 Mass. 115 (1883). 8. A testator by his -will bequeathed to A. and B. a certain fund in trust. They ac- cepted the trust, and, in 1861, gave bonds with C. as surety. C. died testate in 1876, an administrator with the will annexed gave bond and published notice of his appointment in that year, and his estate had not been fully administered, when, in 1879, A. and B. were removed from the office of trustee, and D. was appointed in their stead and made a written demand upon them to deliver to him all the trust property in their hands, which they re- fused to do. Held, that their refusal con- stituted a breach of their bond, and a claim thereupon arose against the estate of C. as a surety on that bond; and that D. could main- tain a petition to the Probate Court under Gen. Sts. c. 97, § 8, to order C.'s administra- tor to retain in his hands suflRcient funds to satisfy D.'s claim against the estate. Ham- mond v. Granger, 128 Mass. 272 (1880). 9. If the existence of a claim against the estate of a deceased person depends upon a future contingency, it is not a debt " justly due " from the estate, within Gen. Sts. c. 97, § 8. Ames v. Ames, 128 Mass. 277 (1880). 10. (Jpon an application to the Probate Court, under Gen. Sts. c. 97, § 8, by a cred- itor, whose right of action does not accrue within two years after the giving of the ad- ministration bond, to order the administrator to retain in his hands suificient to satisfy his claim, the duty of that court does not involve an inquiry into the amount of assets then in the hands of the administrator. Hammond v. Granger, 131 Mass. 351 (1881). 11. The owner of land devised it to his widow. The executor of his estate, under a license from the Probate Court, sold the land to B., and took in payment promissory notes payable to himself personally, and secured by a mortgage on the land. The widow died in- debted to B. The executor of her husband's estate was appointed executor of her estate, and, after the notes were overdue, assigned them with the mortgage to A. No demand was made by B. upon the executor for the payment of the debt due him from the widow, within two years after the appointment of the executor. Held, on a writ of entry to fore- close the mortgage, brought by A. against B., that B. was not entitled to set off against the notes the amount due him from the widow. Tyler v. Boyce, 135 Mass. 558 (1883). 12. No particular kind of evidence is re- quired to rebut the presumption, declared by the Pub. Sts. c. 197, § 23, that a judgment of a court of record has been paid and satisfied at the expiration of twenty years after the rendering thereof, but any legal evidence having a tendency to show that such judgment has not been paid or satisfied is competent; and if the evidence furnished is such as to produce conviction that the judgment has not been paid or satisfied, it is suflicient to rebut the presumption. Walker v. Robinson, 136 Mass 280 (1884). 13. A testator authorized his executor to sell and convey all or any part of his real estate, and directed him to appropriate a cer- tain sum of money, to be raised out of his estate, and to place the same at interest se- cured by mortgage ; and that the interest of said sum be paid to the testator's wife during her life, and, after her death, said sum be divided between several persons named. The executor did not appropriate and set apart the sum directed by the will, but gave to the widow his personal bond to pay her the in- terest of that sum; and, after her death, failed to pay the legacies to the persons named. Held, that an action brought, for the benefit of the legatees, against a surety on the ex- ecutor's bond, more than twenty years after the failure of the executor to appropriate the money raised from the estate, but within twenty years from the death of the widow, was not barred by the statute of limitations. Thayer -7. Keyes, 136 Mass. 104 (1883). 14. Under the Gen. Sts. c. Ill, § 16, an action upon an indenture, by the inspectors of a State almshouse, binding as an apprentice a State pauper, is barred, unless brought during the term of apprenticeship, or within two years after the expiration thereof. Johnson v. Gibis, 140 Mass. 186 (1886). 15. Under the Pub. Sts. c. 84, § 14, provid- ing that the expenses incurred in the relief of a pauper, within three months next before notice given to the place to be charged, may be recovered of such place by the place incur- ring the same, in an action " to be instituted within two years after the cause of action arises, but not otherwise," no such action can be maintained, unless brought within two years from the time of giving the notice re- quired by the statute. Reading v. Maiden, 141 Mass. 580 (1886). 16. Two counters, which belonged to A., were, without his knowledge or authority, placed by B. in a shop built by him on his land, nailed to the floor, and used there. Four years afterwards, B. mortgaged the premises to C, who, eight years later, foreclosed the mortgage, and then sold the premises to D., making no mention of the counters. A., who two years subsequently first learned where the counters were, took them from D.'s pos- session. Held, that D. could maintain replevin against A. for the counters. Field, J., dis- senting. Chapin v. Freeland, 142 Mass. 383 (1886). II. Extension or Avoidance of the Limitation. 1. After a debt from B. to A. was barred by the statute of limitations, A. became in- debted to B. in a less amount, and B. orally agreed that this debt should be applied to his debt to A. so far as it would go. There was no evidence, in a suit brought by A., that the application was ever made, and the account annexed, upon which alone the credit ap- peared, was filed after the date of the writ. Held, that the action could not be main- 635 LIMITATION OF ACTIONS, II. 636 tained. Winchester v. Sibley, 132 Mass. 273 (1882). 2. The pendency of proceedings in bank- ruptcy against a debtor, does not suspend the operation of the statute of limitations in his favor. Doe v. Erwin, 134 Mass. 90 (1883). 3. An action entered "neither party," for failure of the plaintiff to prosecute, is not de- feated "for any matter of form," within the meaning of that term as used iu the general statute of limitations. Cumming v. Jacobs, 130 Mass. 419 ([1881). 4. In an action upon four promissory notes, the defence to three of which was the statute of limitations, it appeared that, upon pay- ment of the notes being demanded, the de- fendant assigned to the plaintiff certain choses in action, the proceeds of which were to be applied as far as such moneys went upon the defendant's indebtedness to him upon the notes ^ and that there was no agreement or understanding between the parties, and no direction by the defendant, as to how any money received by the plaintiff through said assignments should be specifically applied. Held, that the money received by the plaintiff under the assignments should be applied as a partial payment upon each of the notes ; and that the whole debt was taken out of the statute of limitations. Taylor v. Foster, 132 Mass. 30 (1882). 5. A partnership debt is taken out of the operation of the statute of limitations by a part payment thereof made by one partner within six years, although the firm had then been dissolved by the voluntary act of the partners, if the holder of the debt had no knowledge of the dissolution. Buxton v. Ed- wards, 134 Mass. 567 ( 1883). 6. If the assignee of a mortgage of real estate containing a power of sale sells the mortgaged premises, and, after paying the ex- penses of the sale, applies the balance to the mortgaged debt, this does not operate as a part payment on the note, so as to take it out of the operation of the statute of limitations as to the mortgagor, who, at the time of the sale, had conveyed the premises to a third person, who agreed to pay the note. Campbell V. Baldwin, 130 Mass. 199 (1881). 7. An account for goods sold and delivered, upon which the buyer makes payments of money, which are applied in reduction of the account, is not a " mutual and open account current," within the Gen. Sts. c. 1.55, § 5 ; and it cannot be made such an account by an oral agreement of the parties. Parker v. Schwartz, 136 Mass. 30 (1883). 8. The maker of three promissory notes wrote a letter to the agent of the payee, W., containing the following: " What is W. will- ing to take for the notes ? I cannot pay the face of them and interest, as he looks at it ; he must not expect it. 1 will tell him how much I will pay him per month; but I want him to set the amount which he thinks he ought to have." A second letter written by the maker of the notes to the same person, after referring to another letter written by the latter to third persons, contained the fol- lowing: " According to the letter, you gave them to understand that W. had not had but $37; and what you paid him, and what was paid M. for him, makes $80. You wrote also that he would make a discount. Now write what he will do, and I will tell you on what terms I will make payments." Held, in an action by W. on the notes, that the letters did not take the notes out of the operation of the statute of limitations. Weston v. Hodq- kins, 136 Mass. 326 (1884). " 9. A creditor wrote to his debtor, asking him to send his note for the amount of the creditor's account. In reply, the debtor wrote that he was unable to send the note requested ; that his mother's house and furniture had been sold at a mortgagee's sale; that hia father had lost all of his property; that he himself was just starting in his profession, and was earning scarcely anything; that his uncle had assisted him in his education, but that he was then thrown on his own resources ; and concluded as follows: " I hope, however, in the course of a few years to be in receipt of enough income to attend to your bill, to- gether with others." Held, in an action on the debt, that the letter did not take the debt out of the operation of the statute of lim- itations. Krebs v. Olmstead, 137 Mass. 504. (1884). 10. If false representations as to the con- tents of public records constitute a cause of action, they are not sufficient to prove a sub- sequent fraudulent concealment of it from the knowledge of the person entitled to bring the action, within the meaning of the Pub. Sts. 0. 197, § 14. Walker v. Soule, 138 Mass. 570 (1885). 11. An account due to the firm of A. and B. by C, and an account due to C. by A. after the dissolution of the firm by the death of B., do not constitute a " mutual and ppen account current," within the meaning of the Pub. Sts. c. 197, § 8 ; and all the items of each account, not contracted within six years before the date of the writ in an action upon the account due the firm, by A. as surviving partner, against C, who files his account against A. in set-off, are barred by the statute of limitations. Eldridge v. Smith, 144 Mass. 35 (1887). 12. A bank, by mistake, overpaid to A.'s clerk, on a check drawn by A., a certain sura. The clerk, upon his return to A.'s place of business on the same day, discovered the mis- take, notified A. of it, and requested A. to allow him to return the money to the bank, and A. refused. Upon the clerk's next visit to the bank, within a few days, the bank teller asked him if he had been overpaid, and he denied it. The clerk reported this to A., who approved it, and afterwards kept the money without ever giving notice to the bank. The bank brought an action against A. to recover the money more than six years after its over- payment. Held, that there was a fraudulent concealment by the defendant of the plain- tiff's cause of action, within the Pub. Sts. c. 197, § 14; and that the action could be 637 LIS PENDENS. 638 maintained. Manufacturers' Bank v. Perry, 144 Mass. 313 (1887). III. When the Limitation commences ; Computation of Time. 1. An action for money had and received, to recover money paid under a mistake of fact, in which there is no claim of fraudulent con- cealment, is barred by the statute of limita- tions, unless brought within six years from the date of the payment of the money; not in six years from the time of demand, for no de- mand is nfecessary. Sturgis v. Preston, 134 Mass. 372 (1888). 2. An action by an assignee in bankruptcy against an officer holding the proceeds of a sale of goods of the bankrupt, " to be dis- posed of according to law," under an attach- ment made within four months of the com- mencement of the proceedings in bankruptcy, is not barred by U. S. Rev. Sts. § 5057, if be- gun within two years after demand and re- fusal, although not begun until eleven years after the attachment, in consequence of the negligence of the assignee in ascertaining the existence of such attachment. French v. Mer- rill, 132 Mass. 525 (1882). 3. An action for damages sustained within six years by the wrongful continuance of a dam is not barred by the statute of limita- tions, although the dam was erected without right more than six years before the date of the writ. Prentiss v, Wood, 132 Mass. 486 (1882). 4. The statute of limitations does not begin to run in favor of a trustee against his cestui que trust until the trustee has repudiated the trust, and knowledge of the repudiation has come home to the cestui que trust. Davis v. Coburn, 128 Mass. 377 (1880). 5. If A.'s wife, at his request, and for the purpose of paying a debt due from him to B,, borrows of C. a sum of money, giving C. therefor a promissory note signed by her and by D., and the money so borrowed is applied in payment of A.'s debt to B., and D. pays the judgment obtained in an action season- ably brought against him on the note by C, D. may maintain an action against A- for the amount so paid; and the statute of limitations does not begin to run until the date of such payment by D. Wheeler v. Young, 143 Mass. 143 (1887). 6. Section 28 of the Pub. Sts. c. 139, pro- viding that "no action shall be maintained against the sureties on a bond given by a guardian, unless such action is commenced within four years from the time of the dis- charge of the guardian," begins to run from the death of the ward; and the further pro- vision of the statute, that, " if at the time ot such discharge the person entitled to bring such action is out of the Commonwealth, the action may be commenced at any time within four years after his return," does not apply to the case where an administrator of the ward's estate is not appointed until more than four years after the death of the ward. McKim v. Mann, 141 Mass. 507 (1886). rV. Pleadings; Evidence; Practice. 1. The answer to a declaration under Gen. Sts. c. 85, § 1, authorizing the recovery of money lost at gaming, in three counts, averred that " the cause of action, the alleged offence men- tioned in the plaintiff's declaration, was not committed within one year before the suing out of the plaintiff's writ, wherefore he can- not maintain his said action." Held, that, even if the declaration set out more than one cause of action, the statute of limitations was properly pleaded. Cole v. Groves, 134 Mass. 471 (1883). 2. In an action, begun in the fall of 1882, for an injury occasioned by flooding the plain- tiff's land in the spring of 1876, and in 1877 and 1878, evidence of the flowage or damage done in the spring of 1876 is properly excluded, the claim being barred by the statute of lim- itations. Stanchfield v. Newton, 142 Mass. 110 3. When the statute of limitations would be a bar to a direct proceeding by the original owner of personal property, it cannot be de- feated by indirection within the jurisdiction where it is law. A title which will not sus- tain a declaration will not sustain a plea. Field, J., dissenting. Chapin v. Freeland, 142 Mass. 383 (1886). LIQUOES. See Spirituous Liquors. LIS PENDENS. 1. In 1874, P., the owner of land, mort- gaged it to W. In 1875, W. assigned the mortgage to H., but the assignment was not recorded until 1882. In 1876, W. by mistake discharged the mortgage on the margin of the record thereof in the registry of deeds. In 1877, before the St. of 1877, c. 229, took effect, W. and H. brought a bill in equity against F. to have the discharge of the mortgage can- celled. In 1876, after the discharge of the mortgage, and in 1877 and 1878, a tax on the land was assessed to F. as owner, and, not being paid, the land was sold in 1879 to J., by the collector of taxes of the town in which the land was situated, and deeds in due form to J. were executed by the collector, and re- corded. In 1882, a decree was entered in the bill in equity ordering a cancellation of the mortgage, which decree was recorded, in the same year, in the registry of deeds, and there was no evidence that J. had any knowl- edge of the suit prior to such record. Soon after, in the same year, H. foreclosed the mortgage by a sale under the power therein contained, and conveyed the land to himself. More than two years after the sale for taxes, but within two years after H. had knowledge of such sale, he made a tender to J., for the 639 LORD'S DAY. 640 purpose of redeeming the land. Held, that, on the tender being refused, H. could main- tain a writ of entry against J. to recover pos- session of the land. Hawes v. Howland, 136 Mass. 267 (1884). 2. The pendency of another action for the same cause of action in another State, if it can be pleaded at all, can be pleaded in abate- ment only, and not iu bar. Moore v. Spiegel, 143 Mass. 413 (1887). LITERAKY PROPERTY. The representation of a dramatic work, which the proprietor has never caused to be printed and has not obtained a copyright of, if made without license of the proprietor, is a violation of his right, and may be restrained by injunction, although such representation is from a copy obtained by a spectator attend- ing a public representation by the proprietor for money, and afterwards writing it from memory. Tompkins v. Halleck, 133 Mass. 32 (1882). LIVERY STABLE. If a horse which is boarded at a livery stable is allowed by the stable keeper to be used by its owner in his business, and is sold by the owner, without the knowledge of the stable keeper, while the horse is away from the stable, the stable keeper loses his lien; and he cannot regain it by taking the horse from the possession of the purchaser. Vinal V. Spofford, 139 Mass. 126 (1885). LOAF AND FUND ASSOCIATION. See Voluntary Association. LOBSTER. See Fish. LORD'S DAY. 1. St. 1877, c. 232, enacting that the pro- visions of Gen. Sts. c. 84, § 2, " prohibiting travelling on the Lord's day, shall not consti- tute a defence to an action against a common carrier of passengers for any tort or injury suffered by a person so travelling," does not apply to an action brought after it went into effect for an injury received before its enact- ment. Though the language of this statute is sufficient to embrace cases arising as well be- fore as after its passage, there is no express provision .that it shall be retroactive, and no necessity for so construing it. Bucher v. Fitchhurg Railroad, 131 Mass. 156 (1881). 2. In an action against a railroad company for personal injuries occasioned to the plain- tiff while a passenger in one of its cars, it appeared that he was a travelling agent for an insurance company; that his sister, who was unwell and was temporarily residing in a distant State, had written to him that she had had a severe attack of illness and desired to be carried to her home ; that he had written to her, stating his situation, that he was trav- elling, and asking her to arrange with a friend to bring her as far as a certain city, and that he would make arrangements for some one to accompany her from that place to her home, if her friend could not come with her any far- ther ; that he expected an answer to his letter would reach B. in a week, which would decide whether he would have to go after her, or whether her friend would take her home; that, after writing this letter, he was absent from B. for about three weeks, travelling on his insurance business, but expected to reach there on the evening of a certain Saturday, for the purpose of getting his mail, procuring funds, and attending to his business at the office of the insurance company; and that he missed a connection of trains, and, being de- sirous to reach B. in order that he might re- ceive the expected reply from his sister, took passage on a freight train of the defendant on the following Sunday morning, and received the injuries complained of. Held, that there was no evidence which would justify the jury in finding that the plaintiff was travelling from necessity or charity, within the meaning of Gen. Sts. c. 84, § 2. Bucher v. FUchburg Railroad, 131 Mass. 156 (1881). 3. If a person sails for pleasure in his yacht on the Lord's day, in violation of Gen. Sts. c. 84, § 2, and if, while he is so sailing, his yacht is injured by being negligently run into by a steamboat, his unlawful act necessarily contributes to the injuiy, and he cannot main- tain an action therefor against the owner of the steamboat; but if the act of those in charge of the steamboat, in running against the plaintiff's yacht, was wanton and mali- cious, he can maintain such action, if they were acting within the general'scope of their employment, and were executing their mas- ter's business. Wallace v. Merrimack River Navigation Co., 134 Mass. 95(1883). 4. Although a person may lawfully travel on the Lord's day for the purpose of attending a funeral, and is not obliged to return by the shortest route, yet if, after the funeral is over, to enable a friend with him to make a social call, he departs from the ordinary return route, and, after such departure, is injured by a defect in the highway, he cannot main- tain an action therefor against the town bound to keep the highway in repair. Davis v. Som- erville, 128 Mass. 594 (1880). 5. If a person, while unlawfully travelling on the Lord's day, is injured by the assault of a dog, the act of travelling is not a contribu- tory cause of the injury, and he can main- 641 LORD'S DAY. 642 tain an action against the owner of the dog. White V. Lang, 128 Mass. 598 (1880). 6. A contract made on Sunday by the over- seers of a town for the relief of a sick pauper is a work of -necessity or charity, and there- fore within the exception of Gen. Sts; c. 84, § 1. Aldrich V. Blackstone, 128 Mass. 148 (1880). 7. It is no defence to an action for compul- sory pilotage fees, under St. 1862, c. 176, that the services of the pilot were offered on Sun- day Perkins v. O'Malwney, • 131 Mass. 546 (1881). 8. A street railway car, which is run on Sunday for the purpose of accommodating the public generally and earning money from any one who may see fit to travel upon it, is run in violation of the Gen. Sts. c. 84, §§ 1, 2, although some of the passengers are lawfully travelling. Day v. Highland Railway, 135 Mass. 113 (1888). 9. A conductor of a street railway car, who is performing the ordinary duties of his em- ployment on Sunday, is both laboring and travelling in violation of the Gen. Sts. c. 84, §§1,2; and if, while standing on the step on the side of an open car, he is injured by being struck by a car of another corporation passing on a parallel track, his illegal acts necessarily contribute to cause his injury, and preclude his maintaining an action therefor, notwithstand- ing the St. of 1877, c. 232. Day v. Highland Railway; 135 Mass. 113 (1883). 10. A person who travels from one town to another on the Lord's day, for the sole pur- pose of visiting an invalid sister, whom he be- lieves to be ill, and another person who drives the former, at his request, solely for the saihe purpose, are travelling from charity, within the Pub. Sts. c. 98, § 3; and each person may maintain an action against a town for personal injuries occasioned by a defect in a highway therein, although the plaintiff testifies that his only reason for going on the Lord's day instead of on a week day was that he could not have gone on a week day on account of his work. Cronan v. Boston,^ 136 Mass. 384 (1884). 11. In an action against a street railway corporation for personal injuries occasioned to the plaintiff, a boy thirteen years and five months old, accustomed to ride in street cars, in attempting to get upon the front platform of the defendant's car while it was in motion, on the Lord's day, but not to travel for any purpose of necessity or chaiity, the plaintiff's testimony tended to show that, when he saw the car coming, he, with another boy, left the sidewalk where they had been waiting, crossed the street, and stood by the side of the track ; that the car stopped less than two car-lengths from the place of the accident, and started with a tow-horse attached; that the grade was rising; that the horses started on a walk, and, at the time the plaintiff at- tempted to get upon, the platform, were just beginning to trot,, or going at a slow trot; tliat,"when: the car approached the plaintiff, he signalled the driver to stop;; that the driver saw him and turned to speak to the tow-boy, who'was on the front. platform on the opposite SUPPLEMENT. — 21 side of the car from the plaintiff; that the plaintiff's companion got upon the front plat- form ; that, as the plaintiff was getting upon it, with one foot upon the step and holding to the railing with both hands, the driver and the tow-boy started up the horses, giving the car a jerk by which the plaintiff's foot was thrown off the step, and, after being dragged a few feet, he fell, receiving the injuries com- plained of. There was no rule or notice pro- hibiting the getting on the front platform of the car when in motion. Held, that, if the jury found that the driver believed that the plaintiff was getting upon the car, there was sufficient evidence of the defendant's negli- gence. Held, also, that the question whether the plaintiff was in the exercise of due care was for the jury. Held, also, that the plaintiff was " travelling," within the Pub. Sts. c. 98, § 3. McDonough v. Metropolitan Railroad, 137 Mass. 210 (1884). 12. A person on the Lord's day, pai-tly for exercise and partly to make a social call, walked a mile to the house of a friend, spent the evening there with him and another friend, accepted the latter's invitation to go to his hotel in a carriage, thus deviating one eighth of a mile from his direct route home, spent a quarter of an hour at the hotel, and, while walking home therefrom, sustained an injury through a defect in a highway. Held, that he was not " travelling," within the Pub. Sts. 0. 98, § 3; and could maintain an action against the city bound to keep the way in re- pair. Barker v. Worcester, 139 Mass. 74 (1885). 13. An engineer of a locomotive engine, who is performing the ordinary duties of his employment on Sunday, is laboring in viola- tion of the Pub. Sts. c. 98, § 2, unless the running of the train on which he is employed is a work of necessity or charity; and if it is not, and, while so laboring, he is injured by a defect in the railroad track, his illegal act necessarily contributes to cause his injury, and precludes his maintaining an action there- for. Read v. Boston §• Albany Railroad, 140 Mass. 199 (1885). 14. The St. of 1884, c. 37, enacting that the provisions of the Pub. Sts. c. 98, " relating to the observance of the Lord's day, shall not constitute a defence to an action for a tort or injury suffered by a person on that day," does not apply to an action for an injury received before its enactment. Read v. Boston Ij' Al- bany Railroad, 140 Mass. 199 (1885). 15. Sunday is excluded from the three days allowed by the Pub. Sts. c. 153, § 8, for filing a bill of exceptions. Cowley v. McLaughlin, 141 Mass. 181 (1886). 16. In an action against a railroad corpora- tion for personal injuries occasioned, on Sun- day, to the plaintiff, while in the defendant's employ as an engineer of a locomotive en- gine, by a defect in the railroad track, the plaintiff testified " that the train was made up of box and stock cars, and that there was stock on the train ; " and " that there was no convenience for feeding and watering stock at P.," the place of departure; "that he did 643 MALICIOUS PROSECUTION. 644 not know how they were to be fed and wa^ tered there." This was all the evidence on this point. Held, that there was not sufficient evidence that the plaintiff was engaged in a work of " necessity " or " charity," within the Pub. Sts. c. 98, § 2. Read v. Boston §• Al- hany RaUroad, 140 Mass. 199 (1885). 17. A complaint on the Pub. Sts. c. 98, § 2, alleged that the defendant, on the Lord's day, " unlawfully did take part in a certain game, to wit, the game of cards." In the Superior Court, on appeal, the defendant moved to quash the complaint, because it set forth no offence ; because it did not aver that the game of cards was an unlawful game ; and because it did not aver that the defendant took part in an unlawful game. Held, that the defects, if any existed, were formal defects ; and that the objection was taken too late. Commcn- wealih v. Hallahan, 143 Mass. 167 (1887). 18. The Pub. Sts. c. 98, § 2, prohibit the keeping open of a shop on the Lord's day for the purpose of doing business therein, whether the business be one of necessity or charity, or not. Commonwealth v. Dextra, 143 Mass. 28 (1886). 19. If a complaint, on the Pub. Sts. c. 98, § 2, alleges the keeping open of a shop on the Lord's day, for the purpose of doing business therein, and further alleges the kind of busi- ness, and that it is not a work of necessity or charity, the last allegations may be rejected as surplusage. Commonwealth v. Dextra, 143 Mass. 28 (1886). 20. The Pub. Sts. c. 98, § 2, prohibit the keeping open of a shop on the Lord's day for the purpose of doing business therein, whether the business be one of necessity or charity, or not. Commonwealth v. Starr, 144 Mass. 359 (1887). 21. The Pub. Sts. c. 98, § 2, prohibit the keeping open of a shop on the Lord's day for the purpose of doing business therein, al- though the business is that of selling Sunday newspapers. Commonwealth v. Osgood, 144 Mass. 362 (1887). 22. It is no defence to a complaint on the Pub. Sts. c. 98, § 2, for keeping open a shop on the Lord's day, that the defendant is a Hebrew, who conscientiously believes that the seventh day of the week ought to be observed as the Sabbath, and actually refrains from secular business on that day. CommonwealOi V. Starr, 144 Mass. 359 (1887). 23. A person who has the charge and control of a shop, and carries on the business thereof, although both the shop and the business are owned by another, may be convicted of keep- ing open the shop on the Lord's day, in viola- tion of the Pub. Sts. c. 98, § 2 ; and in the complaint for such violation, the shop is properly described as his shop. Common- wealth v. Bale, 144 Mass. 363 (1887). LOST PROPERTY. See Assumpsit, X. LOTTERY. A person carried on a game, in which the public were invited to take part, described as follows: Any one wishing to play chose a number, and paid a certain sum for it; and the conductor of the game then drew an en- velope from a box full of them, which en- velope contained a slip with many numbers upon it. If the nuinber chosen was found among those upon the slip, the person who chose it received a multiple of the sum paid by him, greater or less according to the odds agreed upon ; if not, he lost what he had paid. Held, that a jury would be warranted in find- ing that the game was a " lottery," within the Pub. Sts. c. 209, § 1. Commonwealth v. Wright, 137 Mass. 250 (1884). LUNATIC. See Guardian; Insanity. M. MAINE. As to unconstitutionality of Gen. Sts. c. 49, §§ 122-124, regulating mode of packing. Sec. of lime from Maine, see Constitutional Law, I. (b), pi. 1. MAINTENANCE. See Champerty. MALICIOUS PROSECUTION. See False Imprisonment; Limitation, L pi. 3. 1. An action for malicious prosecution will lie against a savings bank. Reed v. Home Savings Bank, 130 Mass. 443 (1881). 2. If A. brings an action upon a promissory note against B., who sets up in defence that he has paid the note and that he has a claim in set-off against A. larger than the amount of the note, and the jury return a verdict for 645 MALICIOUS PROSECUTION. 646 B. under his declaration in set-off, the verdict is conclusive that A. had a cause of action against B., and the latter cannot maintain an action against A. for malicious prosecution founded upon such cause of action. Dolan V. Thompson, 129 Mass. 205 (1880). 3. The discharge, upon the failure to find an indictment, of an accused person, bound over on a complaint to await the action of the grand jury, is a termination of the proceed- ings against him such as will sustain an action for a malicious prosecution, without regard to the fact that a nolle prosequi is subsequently entered. Oraves v. Dawson, 130 Mass. 78 (1881). The effect is the same, when the discharge of one bound over is had without any action by the grand jury, and a nolle prosequi is en- tered. Graves v. Dawson, 133 Mass. 419 (1882). 4. Whether a nolle prosequi is or is not such a termination of a criminal proceedings as is necessary to sustain an action for a malicious prosecution, depends upon the other facts of the case. Graves v. Dawson, 130 Mass. 78 (1881). See this case for an examination of the doctrine announced in Parker v. Farley, 10 Cush. 279 (1852). 5. In an action for malicious prosecution, evidence that the defendant, in instituting the prosecution, acted under the advice of counsel, is admissible under an answer containing a general denial only. Folger v. Washburn, 137 Mass. 60 (1884). 6. An officer attached all the goods in a store occupied by A., on a writ against him; and A. delivered the key of the store to the officer, who closed and looked it. A few days after the store was closed, A. and B. broke and entered it in the night-time, and were found there by the officer; and they refused to leave when requested by the officer, and resisted his attempt to expel them, claiming a right to remain there. The officer there- upon procured their arrest, and made a com- plaint against them for breaking and enter- ing his store with intent to steal. A., who was the owner of the goods attached and the lessee of the store, and lived in a tenement over it, was known to the officer. B. was not known to the officer, but offered to him a writing as evidence of his right to be in the store. Held, in an action by A. and B. against the attaching officer for malicious prosecution, that the evidence would warrant a finding that the prosecution was without probable cause, and malicious. Bobsin v. Kingsbury, 138 Mass. 538 (1885). 7. A cause of action for breaking and en- tering the plaintiff's close cannot be joined in one count with one for malicious prosecution. Allen V. Codman, 139 Mass. 136 (1885). 8. In an action for a malicious prosecution, the following facts appeared: The plaintiff was the tenant of the defendant under a lease which gave the lessee the right to make such aUerations "as do not injure the existing buildings, or impair their strength, or affect any insurance thereon, but no others," and the lessee covenanted not to use the building in any manner that shall be "liable to endan- ger or affect auv insurance on said building, or to increase the premium thereof." The lessee removed a rear wall of the leased build- ing. The lessor was notified by his insurer that the insurance was thereby terminated and he paid an additional premium to have it continue; and, acting under the advice of counsel, brought an action of ejectment against the lessee, (which was the alleged malicious prosecution,) and judgment was entered for the lessee. There was conflicting evidence of experts, put in by each side, without objection, on the question whether the risk was injuriously affected by the change. Held, that there was no evidence to be submitted to the jury of want of prob- able cause in bringing the ejectment suit. Allen v. Codman, 139 Mass. 136 (1885). 9. If a passenger on a railroad is prose- cuted, on a complaint by the conductor, for fraudulently evading his fare, and is acquitted, in an action by him against the railroad cor- poration for malicious prosecution, the honest and reasonable belief of the conductor in mak- ing the complaint is a necessary element in determining whether he acted without prob- able cause and maliciously. Krulevitz v. Eastern Railroad, 140 Mass. 573 (1886). 10. A discharge by a magistrate of a person arrested on a complaint is a sufficient termina- tion of the case to support an action for ma^ licious prosecution, even if the magistrate has only power to bind over or discharge the accused. Mdyle v. Drake, 141 Mass. 238 (1886). 11. At the trial of an action for malicious prosecution, it appeared that the plaintiff had been arrested, on a complaint made by the de- fendant, for a wilful trespass by cutting down three hundred trees on the defendant's laud. The evidence tended to show that the land was a brush pasture unenclosed by a fence ; that the plaintiff, having a license to cut a footpath on the land of a third person, by mistake cut it on the defendant's land; that, at the most, only ten trees were cut ; that the damage done did not exceed twenty-five cents ; and that, before the complaint was made, the plaintiff, being informed by the defendant that the cutting was on his land, offered to pay the damages. Held, that there was evi- dence for the jury that the complaint was prosecuted without probable cause, and with malice. Moyle v. Drake, 141 Mass. 238 (1886). 12. Two actions, one brought by A. against B., and the other by B. against A., and which were pending at the same time, were included in one settlement by the parties, by which A. paid to B. the difference between a portion of the sum sued for by B. and the amount sought to be recovered by A. ; and judgment was en- tered for B. in the action against him. Held, that B. could not maintain an action against A. for malicious prosecution in instituting that action. Sarlwell v. Parker, 141 Mass. 405 (1886). 13. A. made two complaints against B., the first in order to obtain a warrant to search for 647 MANDAMUS. 648 intoxicating liquors alleged to be in B.'s pos- session ■with intent to sell the same contrary to law ; the second, in order to obtain a war- rant to search for intoxicating liquors in B.'s possession, alleged to be illegally transported by him, he having reasonable cause to believe that they were intended to be sold in vio- lation of law. B. was acquitted on the first complaint, and convicted on the second. B. then brought an action against A. for ma- licious prosecution in making the first com- plaint. Held, that evidence given at the trial of the second complaint was inadmissible to show a justification for making the first complaint. Held, also, that evidence of the subsequent conviction of a third person for illegally selling a portion of the liquors so transported by B. was inadmissible to show probable cause on A.'s part for making the first complaint. Falvey v. Faxon, 143 Mass. 284 (1887). 14. In an action for malicious prosecution, in making a complaint in order to obtain a warrant to search for intoxicating liquors al- leged to be in the possession of the plaintiJBE in a certain town, with intent to sell the same contrary to law, the fact that the plaintiff col- lected money in the town for liquors brought there in the name of a third person, and for liquors brought to fill orders given to such per- son in the town, affords no justification to the defendant for making the complaint. Falvey V. Faxon, 143 Mass. 284 (1887). 15. In an action against a railroad corpora- tion for malicious prosecution, the plaintiff's evidence tended to show that he entered the defendant's train at L., intending to go to S. ; that he had previously ridden in the same train with the same conductor a great number of times within a year or two, that, on this occasion, when the conductor asked him for his ticket, he offered a ticket of the defendant cor- poration, which read " L. to S. and return," on which he had already ridden from L. to S on a previous day; that the conductor refused to accept the ticket, and demanded of the plaintiff payment of his fare ; that the plain- tiff replied that he had taken no money with him because he thought the ticket was good, and asked the conductor why it was not good, to which the conductor said that it was not good;for a passage in that direction, and said the plaintiff must pay his fare or get off ; that the plaintiff said that he did not want to walk either to L. or S., and that he would pay the fare at night, to which the conductor retorted that that was what all tramps said; that the plaintiff then offered to allow the conductor to keep the ticket as security ; that the conductoi' refused the offer, and told the plaintiff that he would fix him when they got to S. ; that the conductor, who was a railroad police officer, after informing the plaintiff that, if he did not pay fare, he should arrest him or have him ar- rested on arrival at S., allowed the plaintiff to retain his position in the train until he ar- rived at S. ; that, when the train arrived at S., a police officer, who had been previously notified by the conductor, entered the train, and, at the conductor's request, arrested the plaintiff, before he left or attempted to leave the car; that the conductor afterwards made a complaint against the plaintiff for evading the payment of fare by leaving the car with- out having paid his fare ; and that the plain- tiff was tried on this complaint, the conductor being a witness, and was acquitted. Held, that there was' evidence that the complaint was made without probable cause. Kruleoitz V. Eastern Railroad, 143 Mass. 228 (1887). 16. After a criminal complaint has been en- tered in the Superior Court, upon appeal, the entry of a noUe prosequi by the prosecuting officer, by the procurement of the defendant's attorney, his discharge not being ordered by the court, is not sucn a termination of the prosecution as will enable him to maintain an action against the complainant for malicious prosecution. Langford v. Boston If Albany Railroad, 144 Mass. 431 (1887). MALPRACTICE. See Physician. MANDAMUS. See Certiorari. 1. Mandamus lies to enforce the right of one elected to the office of water commissioner of a town, by ballot at the annual town meet- ing, as shown by a recount properly had of the ballots cast. Putnam v. Langley, 133 Mass. 204 (1882). 2. A refusal to grant a writ of mandamus to the mayor of a city to compel him to make a nomination to the board of aldermen for the office of chief of police, while a person is holding that office de, facto, and no one but the incumbent is claiming it, and while an iur formation, in the nature^ of a quo warranto, is pending to try his title to the office, cannot be said to be erroneous. Attorney General V. Mayor of New Bedford, 128 Mass. 312 (1880). . As to whether the writ could be granted, the term of office held by the mayor at the time of the filing of the petition having ex- pired, doubted. Attorney General v. Mayor of New Bedford, 128 Mass. 312 (1880). 3. Mandamus does not lie to compel the marshal of a city to station a police officer at a certain place, in accordance with an order passed by the board of aldermen. Alger v. Seaver, 138 Mass. 331 ( 1885). 4. Mandamus will not lie to compel the mayor of a city to sign a license, granted by the board of aldermen of the city to the petitioner, to be a common victualler, if the mayor is not satisfied that the petitioner has complied with all the provisions of the Pub. Sts. 0. 102, § 8, so as to entitle him to a license. Deehan v. Johnson, \il Mass. 23 (1886). 649 MASTER AND SERVANT. 650 For other cases where the writ was denied, see Auditor of Accounts ; Bailboad ; Way. MANSLAUGHTER. SeeCAEKiER, IX.; Homicide; Indictment. MANUFACTURING COMPANY. See Corporation. For a case involving the construction of the statutes regulating the hours of lahor of minors and , women, see Mastbr and. Ser- vant, III. MARINE INSURANCE. See Insurance, V.. MARRIAGE. See Breach of Promise ; Husband and Wife; Divorce. For cases involving questions of evidence of marriage, see Pauper. 1. Under the Gen. Sts. of New Hampshire, c. 161, §§ 1, 2, as amended hy the St- of 1869, c. 9, a marriage between a man and his mother's sister's daughter is ahsolutely void, without any judicial process or decree. Blais- dell V. Bickum, 139 Mass. 250 (1885). 2. On the issue whether a marriage was valid, the woman testified that, previously to the alleged marriage, she had been the wife of another man. For the purpose of showing that this man was deadi the witness was asked whether it was a, matter of common report that this man had been killed before she mar- ried again. Held, that the question was in- admissible. BlaisdeU v. Bickum, 139 Mass. 250 (1885). 3. A man married A. in Vermont in 1836, and lived with her there until 1863, when he went to Canada with B., by whom he had a child, whom he always afterwards recognized as his sou, and who bore his name. B< died the same year. In 1884, he /went through the form of ; marriage with C. in New Hamp- shire, and lived with her for several years, she supposing she was his wife. In 1866. A. died. . In 1867, he married, D. in this Com- monwealth, and lived with her as well as with C. for nearly a year, until D.'s discovery of his relations with C., when D. ceased to live with him, he acknowledging to her that C. was his wife ; and he then went back to C. and hved with her for many years in New Hampshire and Maine recognizing her as his wife. In 1880, D., while the man whom she married in 1867 was living, but of whom she had not heard since he left her, married another man, supposing her former mar- riage to be void. Neither C. nor D. knew of the existence of A., and A.'s husband had no knowledge of her death until after the events above set forth. On the death of the man whom D. married in 1880, she filed a petition in the Probate Court for an allowance from his estate as his widow. Held, that there was no presumption of law that the man so many times married was divorced from A. before his marriage toC., or was legally married to C. after A. died, and before his marriage to D., or that he ob- tained a divorce from D. before she married again in 1880; and that the facts would not, in favor of D.'s innocence, permit such infer- ences of fact to be drawn; that D.'s marriage in 1867 was a valid marriage, and the one in 1880 invalid; and that her petition must be dismissed. Randlett v. Rice, 141 Mass. 385 (1886). 4. A marriage, solemnized after the filing by the woman of an application to have a decree nisi, entered in her favor upon a libel for di- vorce from a former husband, made absolute, but before the entry of the decree absolute, which is not entered until the day after the marriage, is void, under the Pub. Sts. c. 145, §§ 4, 7, and the man is entitled to have the same annulled, under § 11; and the belief of the parties that the marriage was valid, although they knew that the decree absolute had not been entered, is immaterial, and does not bring the case within the pro- visions of § 27. Cook V. Cook, 144 Mass. 163 (1887). MARRIAGE SETTLEMENT. See Husband and Wife, IV. ; Trust. MARRIED WOMAN. See Husband and Wife. MARSHALLING OF ASSETS. See Executor, VIII. MASTER AND SERVANT. Liability of Mastfb to Servant. (a) Generally, (6) Whether Relation of Master and Servant exists. (c) Injuries through Negligence of Fel- low Servant. (d) Defective and Dangerous Machin- ery, etc. (e) Contributory Negligence or Due Care of Servant. 651 MASTER AND SERVANT, I. 652 II. Liability of Servant to Fellow Servant. III. Ten-Hour Law. As to criminal liability for acts of servant, see Spirituous Liquors. As to the liability of one employing a con- tractor who improperly does his work, see Nuisance. As to what is a sufficient indictment mider St. 1875, c. 211, prohibiting attempts, by in- timidation, to prevent persons from continU' ing in the employment of corporations, etc. see Indictment, pi. 5. See also Agent ; Corporation. I. Liability of Master to Servant. (a) Generally. 1. If a railroad corporation suffers a der- rick, not actually in use for the purposes of its business, to remain for an unreasonable length of time, on land within its control, in such a position by the side of its track as to be in danger of being thrown down by ordi- nary natural causes so as to interfere with the safe passage of its trains, the corporation is liable to a brakeman for injuries resulting from its own neglect in not removing the der- rick, or in not guarding against the danger of allowing ,it to remain, even if it was put up by other servants of the corporation, and in- dependently of the question of their negli- gence. Holden v. Fitchburg Railroad, 129 Mass. 268 (1880). 2. If a person employed to dig a trench is injured by the caving in of the sides of the trench, his employer is not liable to an action for such injury, if he furnished the materials for sheathing or shoring up the sides of the trench, and the materials were not used for that purpose by the person employed by him to superintend the digging of the trench. Floyd V. Sugden, 134 Mass. 563 (1883). 3. A master's duty of giving notice to his servant of risks to which the latter will be exposed in the course of his employment, when such duty exists, is an absolute one, and is not performed by delegating it to a third person, who, though competent for that purpose, fails to give the proper information. Wheeler v. Wason Manuf. Co., 135 Mass. 294 (1883). 4. At the trial of an action for personal in- juries occasioned to the plaiutifE while operat- ing a circular saw in the defendant's employ, witnesses called by the defendant testified that they had seen guards upon circular saws at various times, without describing them; and that a guard, if of sufficient height, would furnish a great protection under certain cir- cumstances. One R. testified of a guard in use on his saw; and that he had never seen another guard like the one used by him. There was nothing to show that the guard used by R. differed in principle from those spoken of by the other witnesses, or from that belonging to the defendant's saw, except in I respect to its height. The judge instructed the jury, that if, in their opinion, the defend- ant in the use of ordinary care ought to have furnished a guard similar to that testified of by R. as in use upon his saw, and the accident happened by reason of the defendant's failure to furnish it, the defendant would be liable. Held, that the defendant had no ground of exception. Wheeler v. Wason Manuf. Co., 135 Mass. 294 (1883). 5. The fact that a brakeman in the employ of a railroad corporation knew, or might have ascertained, that the draw-bars of a locomo- tive engine and of a car, to which it was to be coupled by him while standing upon a plank in front of the engine, were of une- qual height, so that they would be likely to pass each other instead of coupling together, though furnishing strong evidence of careless- ness on his part, will not, as matter of law, pre- clude him from maintaining an action against the corporation for injuries occasioned by reason of the draw-bars so passing each other, that of the engine being tpo low for the pur- pose for which it was used. Lawless v. Con- necticut River Railroad, 136 Mass. 1 (1883). 6. At the trial of an action against a rail- road corporation for personal injuries occa- sioned to the plaintiff while in its employ as a brakeman, by reason of the draw-bar on a lo- comotive engine being too low for the work for which it was used, the defendant has no ground of exception to a refusal to rule that, " if the jury find that the conductor, or any person in charge of the cars at the time, directed the coupling of an engine to a car the draw-bars of which were of unequal height, whereby the injury was caused, the plaintiff cannot recover, the injury being the result of the carelessness of a fellow servant." Lawless v. Connecticut River Railroad, 136 Mass. 1 (1883). 7. The general superintendent of a manu- facturing corporation, whose works covered several acres of ground, and in whose employ were fifteen hundred men, designed, for one of its new mills, a mechanical fixture consisting of a rail sixteen feet above the ground, on which was a movable truck and chain. The rail was designed to go from one side of the building to the other. The foreman of the master mechanic made it too short, so that, at one end, it only came within fourteen inches of the side of the building. The master builder put it up and left it without a stop. After the mill had been running some months, a closet was built under the end of the rail, so that, in fact, although it was not designed for this purpose, the truck could not get off of the rail while the closet remained, on account of the chain going against it. The day after the closet was made, the general superintendent, not having noticed that the rail was too short and was not bvdlt as designed, ordered the closet removed, so far as it interfered with the movement of the truck; and while a carpen- ter in the employ of the corporation was en- gaged in this work, as directed by the master builder, the truck came off of the rail and in- jured him. Held, in an action by the carpeur 653 MASTER AND SERVANT, I. 654 ter against the general superintendent for the injuries so sustained, that, even if the defend- ant was not liable for any negligence in the construction of the building or its appliances, the jury would be warranted in finding that the defendant failed in his duty to the plain- tiff, in ordering the removal of the closet, without ascertaining whether the removal would be attended with danger; and that the action could be maintaine4. Osborne v. Mor- gan, 137 Mass. 1 (1884). 8. A contractor entered into a written con- tract with the trustees of an estate, by which he agreed " to take down the entire building known as the A. House, belonging to said trustees, or so much thereof as the trustees may request; " and which also provided as follows: "All of said work to be done care- fully, and under the direction and subject to the approval of the trustees." Held, that the trustees were liable for injuries occasioned to a third person by the negligence of the con- tractor, or of his servants, in doing the work named in the contract. Linnehan v. Rollins, 137 Mass. 123 (1884). 9. A railroad corporation is liable to one of its employees for an injury occasioned to him by being struck by a bridge-guard, if the guard is out of its proper position, and this is caused by the wearing out of a rope attached to the guard, and the corporation has not made suitable provision to have notice of, and to remedy, defects liable to be occasioned by its use. Warden v. Old Colony Railroad, 137 Mass. 204 (1884). 10. The cook of a steam tug, nineteen years old, who has lived on the sea-shore all his life, has been to sea three summers, and has been employed on the tug four months, the length of time which it took his predecessor to be- come familiar with the duties on board, can- not maintain an action against the owner of the tug, who was also its master, for personal injuries caused, in broad daylight, by his get- ting entangled in the loose end of a line which he was engaged in making fast to a cleat toward the bow of the boat, the bow line be- ing more dangerous to handle than the stern line, because the strain upon it is greater, and it being usual to employ him at the stern, although a part of his duty was to work on deck generally ; and the fact that the master urged him forward by saying, with an oath, " You won't get that rope fast," will not enhance the liability of the defendant Wil- laims V. Churchill, 137 Mass. 243 (1884). 11. In an action by a workman against his employer, for personal injuries caused by the fall of a staging upon which he was at work, it was in dispute whether the defendant un- dertook to furnish the staging as a completed whole, or whether he undertook merely to provide, and did provide, a quantity of sta- ging materials from which fellow servants of the workman erected the staging. The judge instructed the jury that the master is liable to his servant for injuries resulting from defect- ive materials negligently furnished by him, although the negligence of a fellow servant contributes to the accident ; and, on the ques- tion whether the obligation of the master extended to the furnishing of the staging as a completed structure, read the instructions requested by each party, and instructed the jury, that, if the plaintiff's theory was cor- recit, the instructions he asked for were law ; and that, if the defendant's theory was cor- rect, the instructions he asked for were law. Held, that the plaintiff had no ground of ex- ception. Clark V. Soule, 137 Mass. 380 (1884). 12. If a person is employed upon a raised platform, not guarded by a railing, to assist in guiding blocks of ice over wooden tracks, adjoining the platform, from an elevator at the top to a house at the bottom, he cannot maintain an action against his employer for an injury caused by his falling off the side of the platform, the absence of the railing and the risks consequent thereon being as well known to him as to his employer. Moul- ton V. Gage, 188 Mass. 390 (1885). 13. A corporation, owning a parlor car in use on a railroad, under an agreement be- tween it and the railroad corporation, is not liable for an injury caused, to a person not a passenger, by the porter of the car, who was in its employ, throwing from the car a bundle, containing his soiled clothing and other per- sonal property, solely for his own convenience. Walton V. New York Central Sleeping Car Co. , 139 Mass. 556 (1885). 14. If a servant, of full age and ordinary intelligence, upon being required by his mas- ter to perform other duties more dangerous and complicated than those embraced in his original hiring, undertakes the same, knowing their dangerous character, although unwill- ingly and from fear of losing his employ- ment, and is injured by reason of his igno- rance and inexperience, he cannot maintain an action against the master for such injury. Leary v. Boston §• Albany Railroad, 139 Mass. 580 (1885). 15. A person of full age and ordinary in- telligence entered the employ of a railroad corporation as a freight truckman, loading and unloading cars in its yard and shifting freight in its freight-houses. After working in this capacity about three years, he was directed to perform, in addition to his regu- lar duties, those of a fireman, from one to three hours a day, upon an engine which was used to shift freight cars in the yard, where there were many tracks, sidings, frogs, and switches, and to make up trains. He had acted as such fireman about twenty times, when, while standing on the footboard of the engine, with his back towards the direc- tion in which it was moving, and waiting for its speed to slacken so that he could get off, he was jolted off, and injured. He had been brought up on a farm, and had ridden but six times in railroad cars. In an action against the corporation, he testified, that the engine was going so fast that he thought it unsafe to get off; that he never got off the engine at any other time when it was in mo- tion, except when it was nearly at a standstill; and that fie used to observe a jolting of the engine as he stood in the cab. Held, that the 655 MASTER AND SERVANT, I. 656 injury was caused by one of the risks as- sumed by him in his employment; and that the action could not be maintained. Leary V. Boston Sf Albany Railroad, 139 Mass. 580 (1885). 18. An employee in a mill was ordered by the foreman to go up a ladder, which was standing against a belt box into which a re- volving shaft ran at right angles, and nail a board on the box. The employee, who had worked in mills for a long time, and was act- ing within the scope of the duties which he had undertaken, was injured by his apron and jacket catching on the shaft while he was nailing on the board. The shaft was plainly visible, and was seen by him ; and he could have moved the ladder to the opposite side of the box, where there would have been no danger. Held, that he could not maintain an action against his employer for the injury so received. Russell v. Tillotson, 140 Mass. 201 (1885). 17. The committee on highways of a city directed the highway commissioner to erect a building to be used to contain a machine for crushing stone for the highways of the city. The commissioner employed A., a master builder, to furnish the labor and tools re- quired in the erection of the building. The city paid A. and the men employed by him for their services, and furnished all the ma- terials used in the erection of the building. A. directed B., one of the men employed by him, to erect a staging for the purpose of shingling the roof of the building, and to use therefor certain brackets which belonged to A. B. used' the brackets for the support of the staging. One of the brackets, being defective, broke, and the staging, upon which C. was working, fell, and he was injured. Held, that C. could not maintain an action against the city for his injury. Hoppin v. Worcester, 140 Mass. 222 (1885). 18. A laborer, employed by a city to work on a sewer, was injured by the upsetting of a derrick, one of the legs of which he was hold- ing, and which was being used to draw out of the earth, by means of power applied by a steam-engine, the planks which protected the sides of the trench excavated for the sewer. In an action for such injury, the judge in- structed the jury, in substance, that a person undei'takes the ordinary risks of an employ- ment into which he enters, and if the employ- ment is attended with extraordinary risks, which are fully known to the workman when he enters on the employment, he assumes these risks also ; and that the city was responsible for all injuries resulting from defective ma- chinery or apparatus, although the negligence of a fellow servant contributed to cause the injury; and declined to instruct the jury, as requested by the plaintiff, that his " knowl- edge of the danger of drawing the plank was not conclusive evidence of neglect in failing to avoid it." Held, there being no evidence that the plaintiff was negligent, that he had no ground of exception to the refusal to rule as requested. Joyce v. Worcester, 140 Mass. 245(1885). 19. If a servant, 'who is engaged in back- ing, while standing at his horses' heads, a loaded van, is directed by his master to mount the van and drive it under a gateway, over which there is a sign, and then to back down, the master being familiar with the practice of so driving vans; and the servant, though an experienced teamster, never hav- iilg driven under the gateway before, and their relative positions are such that the mas- ter has better means of observation than the servant, whose attention is devoted chiefly to the management of his horses, and of season- ably appreciating the dangers attending the act, and the servant, in following the direc- tions of the master is injured by coming in contact with the sign, the servant may main- tain an action against the master for such injury. Haley y. Case, 142 Mass. 316 (1886). 20. In an action for personal injuries re- ceived by the plaintiff while in the defend- ant's employ, through the alleged neglect of the defendant to provide the plaintiff with safe and suitable machinery and tools, and to give him suitable and proper instructions as to the manner of doing his work, the! judge declined to rule, as requested by the defend- ant, that, " unless the jury find that the plain- tiff was a man of manifest imbeciUty, their verdict must be for the defendant, because the defendant had a right to assume that the plaintiff would protect himself by whatever precautions were necessary." HeW,that the defendant had no ground of exception. At- kins V. Merrick Thread Co., 142 Mass. 431 (1886). 21. In an action for personal injuries sus- tained by a boy while in the defendant's em- ploy, there was evidence that the injuries were caused by his playing with a machine, on which he was not at work, and which he had been cautioned to keep away from. Held, that the plaintiff had no ground of exception to a ruling given to the jury, that, if he was playing with the machine, he could not re- cover. Rock V. Indian Orchard Mills, 142 Mass. 522 (1886). 22. In an action for personal injuries sus- tained by a boy while in the defendant's em- ploy, by his hand coming in contact with a machine, on which he was not at work, but which he was required to pass, thebill of ex- ceptions stated that the plaintiff excepted to certain portions of the judge's charge, and set forth certain detached sentences of the charge as those excepted to. One of these was, that there was nothing in the nature of the ma- chine which rendered it peculiarly and espe- cially dangerous. The plaintiff did not ask to go to the jury on this question. Held, that he had no ground of exception. Rock V. Indian Orchard MiUs, 142 Mass. 522 (1886). 28. In an action by a boy against a corpora- tion for personal injuries sustained, while in the defendant's employ, by getting his hand in a certain machine, between which and another machine he was required to pass in doing his work, if it appears that the first- nam^d machine is not peculiarly dangerous, evidence is inadmissible to show that a gate 657 MASTER AND SERVANT, I. 658 might have been put up at slight expense in front of the machine, or that either machine might as well have been put in another part of the room. Rock v. Indian Orchard Mills, 142 Mass. 522 (1886). 24. In an action for injuries sustained by the plaintifE while in the defendant's employ, there was evidence that the defendant, a rail- road corporation, was the owner of a yard, in which was a building used as a blacksmith's shop, opposite the door of which was a track, which from the door to the corner of the building, a distance of about twenty-two feet, gradually approached the building, so that at the corner there was not room for a person to pass between the building and a car on the track; that the plaintiff was employed as a blacksmith, but was accustomed to assist, when called upon, to move oars in the yard ; that he had been there for many years, and was familiar with the premises, but had not assisted in moving cars on this track, and had not been between the track and the' corner of the building ; that, on the day of the injury, in answer to a call from the foreman of the shop, he went to assist in moving a car on this track ; that, when he took hold of the car, he saw the building and the space between the track and the building ; and that, while mov- ing the car, he was injured by being crushed between the oar and the corner of the building. Held, that it could not be ruled, as matter of law, that the evidence would not warrant the jury in finding negligence on the part of the defendant, and the exercise of due care by the plaintiff. Ferren v. Old Colony Railroad, 143 Mass. 197 (1887). 25. If a person who is employed as a fire- man in a mill, where there are several boilers connected with a main steam-pipe by means ot smaller pipes, each of which has a valve directly over the boiler, but no drip-cock, and whose duty it is to start the steam in the boilers in the morning, and who knows that it is dangerous to let on the steam when there is water in the pipes, is injured while letting on the steam, having the danger in mind, by the bursting of a valve in wMch there is no defect and the escaping of steam, it is an injury arising from the risks of his employ- ment, and he cannot maintain an action against the mill-owner therefor. Linoh v. Sag- amore Manuf. Co., 143 Mass. 206 (1887). 26. In an action against a corporation for personal injuries, the plaintiff's evidence tended to show that the defendant contracted with another corporation to take out a con- denser and put in a new one, and for that purpose sent to the latter's place of business one A. as its agent, with authority to employ all necessary labor and materials to do the work; that A. employed the plaintiff and others to assist him in the work, and asked the plaintiff if he had any blocking, to which the plaintiff replied in the affirmative, and A. told him to get it, which direction the plain- tiff repeated to andther, who procured three blocks and a piece of joist for a cross bar; that, under A. 's direction, one block was placed on one side of a hole in the floor of a room, and the other two blocks were placed in a similar position on the opposite side of the hole, one on top of the other, the cross bar was placed across the hole upon the blocking, a chain cable was attached to the cross bar by a strap, and hung down through the hole, and the whole arrangement was used as a hoisting apparatus; that none of the blocking was fastened ; and that, while so used for hoisting, the blocking slipped and the cross bar came down the hole, and injured the plaintiff. The plaintiff also offered evi- dence that, with the articles actually used in constructing the hoisting arrangement, and no more, it could not be made safe for the work to be done. There was no evidence that anything broke, or that the materials were de- fective. Eeld, that it could not be ruled, as matter of law, that it was the duty of the de- fendant to furnish the materials. Held, also, that if it was the duty of the defendant to fur- nish materials, and the accident was caused by an error of judgment on the part of A. in not fastening the blocks together, the plain- tiff could not recover, in the absence of evi- dence that means of fastening could not readily have been had. Robinson v. Blake Manuf. Co., 143 Mass. 528 (1887). 27. H a person, knowing that the foreman under whom he is working is incompetent, continues to work under him, making no complaint to their employer, and not calling his attention to the fact of such incompetency, and is injured by the carelessness of the fore- man, he cannot maintain an action against the employer therefor. Halt v. Nay, 144 Mass. 186 (1887). (b) Whether Relation of master and Servant exists. 1. In an action for personal injuries occa- sioned to the plaintiff by the negligence of the defendant's servant, it appeared that the plaintiff was a machinist in the employ of W., a builder of steam-engines; that the de- fendant, a teamster, was employed to trans- port an engine from W.'s shop to the railroad station, and went with his truck and servants to do this work ; that, after the engine was loaded upon the truck, he falsely represented to the plaintiff that W. had agreed to send two of his men to the station to assist in load- ing_ the engine upon the car ; and that the plaintiff was thereby induced to go to the sta- tion and assist the defendant, and^ while put- ting the engine upon the car, was injured. Held, that the plaintiff did not become the servant of the defendant ; and that the action could be maintained. Kelly v. Johnson, 128 Mass. 530 (1880). 2. If a person undertakes voluntarily to perform service for a corporation, and an agent of the corporation assents to his per- forming such service, he stands in the rela- tion of a servant to the corporation while so engaged ; and the rule, that a master is not liable to his servant for an injury occasioned by the negligence of a fellow servant in the course of their common employment, applies 659 MASTER AND SERVANT, I. 660 to such volunteer. Barstow v. Old Colony Rail- road, 143 Mass. 535 (1887). (c) Injuries through Negligence of Fellow Servant. 1. A person employed by a city to superin- tend the digging of a trench, and a person employed as a laborer to dig the trench by the same master, are, prima facie, fellow ser- vants ; and, to maintain an action against the city for personal injuries occasioned to the laborer by the negligence of the superintend- ent, the declaration must allege facts, the legal efiect of which is that they are not such fel- low servants. Flynn v. Salem, 134 Mass. 351 (1883). 2. Through the negligence of a competent road-master of a railroad corporation, a switch was misplaced, and a locomotive engine and a train of cars were turned upon a side track, the sleepers of which were rotten ; the engine and train were thrown from the track, and the engineer and fireman were injured. Held, that they were fellow servants with the road- master, and could not maintain an action against the corporation. Walker v. Boston §• Maine Railroad, 128 Mass. 8 (1879). 3. A laborer, engaged in the service of a city under the direction of a foreman, cannot recover against the city for personal injuries resulting from the negligence of the foreman, in the ^sence of evidence that the foreman was incompetent, or that the city was negli- gent in employing him or in providing suitable apparatus for the work in which they were employed. McDermott v. Boston, 133 Mass. 349 (1882). 4. If a boy between fourteen and fifteen years of age, while cleaning machinery in a mill, is injured by the negligence of a fellow servant in starting the machinery, he cannot maintain an action against his employer, if it appears that he has done such work for two years and a half. Curran v. Merchants^ Manufacturing Co., 130 Mass. 374 (1881). 5. A workman, engaged in blasting at a quarry, assumes the risks of his employment, and cannot maintain an action against his employer for an injury sustained in conse- quence of his obeying an order of another workman who superintends the blasting. Kenney v. Shaw, 133 Mass. 501 (1882). 6. A master is not liable to a servant for an injury sustained by him from the fall of an elevator caused by the negligence of a fellow servant. Kelley v. Boston Lead Co., 128 Mass. 456 (1880). 7. An inspector of a railroad car and a brakeman employed on the car are fellow servants; and the latter cannot maintain an action against their common employer for an injury resulting from a failure of the former to perform his duty. Mackin v. Boston §• Al- bany Railroad, 135 Mass. 201 (1883). 8. If a servant is injured by the breaking of a rope used in hoisting goods, in conse- quence of the neglect of a fellow servant, who knew of the defective condition of the rope, to supply a new one, in accordance with a duty which the master has imposed upon him, the question whether the fellow servant acted as a fellow servant merely, or as the repre- sentative of the master, is a question of law, and not of fact. Johnson v. Boston Toiv-Boat Co., 135 Mass. 209 (1883). 9. The foreman of a gang of men employed by a railroad corporation in repairing its track ordered them to quit work at fifteen minutes before the usual hour, and take a train, which was to carry them to a certain station without payment of fare, according to a monthly cus- tom, to receive their wages. One of the men, while running along the track in order to get on the train, was struck and injured by a hand car operated by another gang of men in the employ of the corporation. Held, that he was in the service of the corporation at the time he was injured, and was a fellow ser- vant with those whose act caused the injury. O'Brien v. Boston If Albany Railroad, 138 Mass. 387 (1885). 10. A person employed to make such ordi- nary repairs of a macmine as its use requires to keep it in order from day to day is a fellow servant with those employed to run the ma- chine ; and, if the master employs competent servants to make such repairs, and supplies them with suitable means, he has performed his duty to those employed in running the machine. McGee v. Boston Cordage Co., 139 Mass. 445(1885). 11. A section hand in the employ of a rail- road corporation cannot maintain an action against the corporation for personal injuries, caused by a collision between a hand car on which he was at work and an engine of a train run by servants of the corporation, if the accident was occasioned by the negligence of the section boss and of the engineer of the train. Clifford v. Old Colony Railroad, 141 Mass. 564 (1886). (d) Defective and Dangerous Machinery, etc. 1. If a railroad corporation is bound to use reasonable care in furnishing its employees with suitable cars, on which they are em- ployed, this rule does not apply to a car re- ceived from another corporation, while in transit to its place of destination; but the only duty it owes its employees in such a case is that of providing suitable and competent inspectors. Mackin v. Boston §• Albany Rail- road, IS6 Mass. 201 (1883). 2. In an action for personal injuries occa- sioned to the plaintiff while in the defendant's employ, it appeared that the defendant had contracted with the owners to tear down an old brick building; that one of the walls was built of two courses of brick, each four inches in thickness; and that the inner course supported a chimney extending down to the second floor, but not to the ground. There was evidence tending to show that, on the day of the accident, the defendant's foreman discovered a crack between the outer and the inner courses of the brick where the chimney was; that he notified the defendant of it, he being present in the direction and control of 661 MASTER AND SERVANT, I. 662 the work ; that the foreman called the plain- tiff to aid in putting up braces to prevent the ■wall from falling, and, while they were at work, the wall and chimney fell, carrying away a part of the floor on which they were \l at work, and injuring the plaintiff. Held, that the evidence tended to show personal negligence on the defendant's part in setting the plaintiff to work in a place of peculiar danger, unknown to the plaintiff, without any caution, and should have been submitted to the jury. Ryan v. Tarbox, 135 Mass. 207 (1883). 3. A corporation owning a lighter is bound to use reasonable care in maintaining in suit- able condition the appliances used on board the lighter by its servants in hoisting and lowering merchandise ; but if it furnishes such appliances, and employs a competent servant to see that they are kept in proper condition, it is not liable for an injury occasioned to one servant by the parting of a rope, in conse- quence of its being used for too long a time, and after its defective condition was known to the servant whose duty it was to replace it. Johnson v. Boston Tow-Boat Co., 135 Mass. 209 (1883). 4. In an action for personal injuries occa^ sioned to the plaintiff while in the defend- ant's employ and operating a circular saw used in sawing boards, there was evidence tending to show that boards, while being sawed, sometimes spring back ; and that it is customary to put the hand behind the saw to steady a board which becomes unsteady in sawing; that, in sawing boards into strips, and in some other kinds of work, it is practi- cable to have a guard, of about the thickness of the saw, so placed behind the saw as to furnish protection in case of the board jump- ing back when the hand is behind the saw. It was admitted by the defendant that there was a guard which belonged to the saw used by the plaintiff, as a part of its equipment, and which was kept about it, and was used with the saw or not, as suited the convenience of the workmen ; and there was evidence that this guard was not high enough to afford any protection. The plaintiff testified that there was no guard on the saw on the day of the accident, and that he did not know there was any belonging to it. There was also evidence tending to show that the plain- tiff was inexperienced in the use of circular saws ; and that, until that day, he had never undertaken to run one. Held, that there was evidence to be submitted to the jury that the saw was in an unsafe and improper condition for the plaintiff to be put to work upon. Held, also, that it was a question for the jury whether a guard was reasonably necessary. Held, also, that there was evidence which would warrant the jury in finding that there was danger in using the saw, known by the defendant and not known by the plaintiff, and which he might not have known, though in the exercise of ordinary care. Wheeler v. Wason Manuf. Co., 185 Mass. 294 (1883). 5. A., a person forty-five years of age, en- tered the employ of a railroad corporation as a brakeman, having previously had some ex- perience in that kind of work. He was placed at work in a jrard of the corporation upon a switching engine, which was used to change cars about the yard and to make up trains. He, with others, was in the habit of taking cars which had been damaged, and putting them upon a certain track in the yard, two or three times a week. After working a few weeks he was injured by reason of a broken brake on a car. Whenever there had been damaged cars to be moved, during his employ, his attention had been called to the fact by the yard-master, who usually told the men that the cars had been damaged, and that he wanted them put on a track indicated. They could usually tell a damaged car by its appear- ance. A. was sometimes accustomed to ex- amine to see if cars were damaged; and he looked at the car in question, with others, on the day of the accident, but saw nothing out of order about it. Held, in an action by A. against the corporation, that the injury was caused by one of the risks assumed by him in his employment; and that the action could not be maintained. Yeaton v. Boston §• Lowell Railroad, 135 Mass. 418 (1883). 6. A brakeman in the employ of a railroad corporation may maintain an action against the corporation for personal injuries occa- sioned, while in the exercise of due care, by the fall of a trestle-work supporting a portion of a spur track, which was intended for use for an indefinite period of time, if the fall is caused partly by the defective construction of the trestle-work, and partly by negligence of the fellow servants of the plaintiff. Elmer V. Locke, 135 Mass. 575 (1883). 7. At the trial of an action against a rail- road corporation for personal injuries occa- sioned to the plaintiff while in its employ as a brakeman, by reason of the draw-bar on a locomotive engine being too low for the work for which it was used, if the facts are in dis- pute, the defendant is not entitled to a ruling that, upon all the evidence in the case, the plaintiff cannot recover; and that, if the jury find that the only defect in the engine was the height of the draw-bar, the plaintiff cannot recover. Lawless v. Connecticut River Rail- road, 136 Mass. 1 (1883). 8. In action against a railroad corporation by a brakeman in its employ, for personal injuries caused by a defective ladder on a freight car received from another corporation, while in transit to its place of destination, the defendant's inspector at the place where the car was received testified, that he heard of the accident the same day it occurred; that he had no recollection of having inspected that train, or having seen any defective ladders ; and that he did not remember having in- spected any particular train before it started out. Held, that it could not be said, as mat- ter of law, that the appearance and conduct of the inspector as a witness, which the jury were instructed to consider, in addition to the evidence that the car was defective and to the testimony of the inspector, would not warrant the juiy in finding that he was an incompe- 663 MASTER AND SERVANT, I. 664 tent person for such a position. Keith v. New Haven ^ Northampton Co., 140 Mass. 175 (1885). 9. In an action by a boy thirteen years old against a corporation for personal injuries sustained, while in the defendant's employ, by getting his band in a machine, called a winder, it appeared that this machine was about four feet and four inches long, and two feet and ten inches high, consisting of three smooth steel cylinders, two large ones, with a small one between them on which cotton was wound; that they revolved about fifteen to twenty times a minute; that the gears and pulleys connected with them were covered, but there was no fence or other protection against danger from the other part of the machine ; that a machine called a card-grinder stood about four and one third feet from the winder, and the plaintiff, in the course of his work, was required to pass between these machines, but did not work on the winder; and that the plaintiff had been in the defend- ant's employ three weeks and three days when he was injured. Held, that the winder was not a peculiarly dangerous machine ; that the defendant was not liable for neglect to fence it ; and that, i£ the defendant sufficiently in- structed the plaiutifE as to the dangers of the machine, the action could not be maintained. Rock V. Indian Orchard Mills, 142 Mass. 522 (1886). 10. A part of a machine used in a cotton mill consisted of a pulley, over which a chain passed, to one end of which was hung a weight. An extra weight was hung by a raw- hide lacing to a hook made of wire, fastened into the chain to which the other weight hung. The extra weight did not come with the machine, and was not specially intended as a weight. It had been used upon the ma- chine for about two years for the purpose of moving more rapidly a part of the machine, but the weight had been off at times during the two years, and the machine operated suc- cessfully without it, although better with it. A person who was employed upon the ma- chine was injured by the falling of the weight, in consequence of the breaking of the lacing. Held, in an action for such injury, that, there being no dispute how the weight was attached, or as to its purpose, it was rightly ruled that the weight was a part of the machine, liice V. King PhUip Mills, 144 Mass. 229 (1887). 11. In an action for personal injuries occa- sioned to the plaintiff while in . the employ of the defendant, by the falling of a weight, in consequence of the breaking of a lacing by which the weight was hung to a hook fas- tened into a chain attached to a machine on which the plaintiff was at work, the defendant asked the judge to instruct the jury as follows: ♦' The duty of seeing that the lacing by which the weight was put on the machine was prop- erly secured, or was a suitable one, was a duty- which the defendant could delegate to an em- ployee; and if it was delegated, and the em- ployee was provided with suitable means to repair or replace the lacing, then the neglect of such employee to see that the same was properly renewed or was a suitable one was the neglect of a fellow servant of the plain- tiff, and the plaintiff cannot recover for any injury caused by such neglect" The judge declined so to rule, and instructed the jury as follows: "If the master provides suitable appliances and competent persons ' to attend to them, he has done his duty. If he pro- vides proper persons to see that his machinery is kept in proper condition to use, and the in- jury is caused by the negligence of the person so employed, the master is not liable, and a person so employed to keep the machinery in repair is a fellow servant, within the rule. If you find that the weight, as tied up by the lacing, was not a proper machine, and the defendant knew or ought to have known it, the defendant is liable, if the accident hap- pened while the plaintiff was in the exercise of due care." Held, that the defendant had no ground of exception. Rice v. King PhUip Mills, 144 Mass. 229 (1887). . 12. In an action for personal injuries sus- tained by_ the plaintiff while at work on a machine in the defendant's mill, there was evidence that the machine was constructed for carding wool, and, when the fan was run in the manner indicated by the construction of the machine, the machine was safe, but when the fan was made to revolve in the op- posite direction the machine was dangerous; that the plaintiff did not control the running of the machine; that he had never known the fan to be run in the wrong direction but once, and this was two days before the injury; that he examined the belting the day before, and found the fan running in the right direction; that he could not tell, from the place where he stood when attending to his duties, the direction of the revolution of the fan ; that he had no notice or knowledge that, on the day of the injury, the fan was running in the wrong direction ; and that no guard had been placed over the fan to protect the plaintiff from injury. Held, that there was evidence for the jury that the plaintiff was in the exer- cise of due care, and that the defendant was not. White v. Nonanlum Worsted Co,, 144 Mass. 276 (1887). 13. If a master employs a servant to work on a machine which is so far out of repair as to be dangerous, and which has remained in that condition for a long time, he is not re- lieved from responsibility to the servant, for an injury sustained while working on the machine, merely by proof that he has in- trusted to competent servants the duty of making ordinary repairs of the machine, and the keeping of it in order from day to day, and has supplied them with suitable means for that purpose, if it appears that the ser- vants only inspected the machine for the pur- pose of keeping it in order so that it would do good work, without regard to its condition as a dangerous machine. Rogers v. Ludlow Manuf. Co., 144 Mass. 198 (1887). 14. If a boy niaeteen years of age under^ takes to work on a dangerous machine un- derstanding the danger, and is injured, his employeris not liable therefor, although the 665 MASTER AND SERVANT, I. 666 machine would not have been dangerous, had guards been used. Qilbert v. GuUd, 144 Mass. 601 (1887). 3. Pending a complaint under Gen. Sts. c. 149, for flowing land by a mill-dam, the parties entered into an agreement under seal by which all past and future claims for com- pensation for flowage were released, and the complaint was entered " neither party." Af- ter the entry of the complaint, and before the execution of the agreement, the complainant mortgaged his land; the nlortgage was subse- quently foreclosed and the land sold. Held, that the purchaser could not maintain a com- plaint under the mill act, although neither he nor the mortgagee had knowledge of the agreement when each acquired his title. Isele T. Schwamb, 131 Mass. 337 (1881). 4. If exceptions are taken by the respond- ent to rulings of the Superior Court at the trial of a complaint under the mill act, Gen. Sts. c. 149, which are overruled by this court after the verdict of a sheriffs jury assessing the complainant's damages in accordance with that act has been returned into and accepted by the Superior Court, the verdict is not "al- lowed and recorded," within the meaning of Gen. Sts. c. 149, § 21, until after the over- ruling of the exceptions; and, after judgment by the Superior Court for the complainant for past damages and costs, an election by him to take damages in gross, although made more than three months after the acceptance of the verdict, is not too late, and he is entitled to judgment on the verdict. Hamilton v. Farrar, 131 Mass. 572 (1881). 5. A payment or settlement of gross dam- ages caused_ by the flowage from a mill-dam creates an incumbrance on the land flowed, which constitutes a breach of the covenants against incumbrances and of warranty in a subsequent deed of the land. Isele v. Arling- ton Saoings Bank, 135 Mass. 142 (1883). supplement. — 22 6. The acceptance by a town of a bond from a person who builds a dam therein, " to clear the town from any damage from the flowing of the water, that the dam never should inter- fere with the town road," is no bar to an action by the town against a person who re- builds the dam to a greater height, which damages the road by setting the water back upon it. New Salem v. Eagle Mill, 138 Mass. 8 (1884). 7. A person who rebuilds and maintains a dam originally buUt by another is liable, with- out a demand, to an action by a town for damages caused by the dam setting the water back upon a highway therein ; and may con- tinue liable, notwithstanding a subsequent lease to or occupation by others. New Salem V. Eagle Mill, 138 Mass. 8 (1884). 8. in an action for diverting the waters of a natural stream, and preventing the same from coming to the plaintiff's mill, the fact that a certain percentage of the water -was re- turned to the stream may be considered in estimatingthe amount of damages. Mannville Co. V. Worcester, 138 Mass. 89 (1884). 9. Mere non-user of a mill privilege for more than twenty years, if unaccompanied by any decided or unequivocal acts of the owner inconsistent with the continued existence of the easement, will not extinguish it. Eddy v. Chace, 140 Mass. 471 (1886). 10. The owner of land, having a right to flow, by means of a dam, adjoining land which is used for pasturage purposes, is not entitled to remove an ordinary farm fence erected on tlie servient estate, while he is not exercising his right of flowage. Smith v. Langewald, 140 Mass. 205 (1885). 11. A bill in equity, to restrain the mainte- nance of a dam, whereby the water of a great pond may be raised above its natural level at high water, and of a sluiceway, whereby the water may be drawn off below its natural level at low water, may be maintained by a person suffering special and peculiar damage there- from ; and a person whose land is flowed by means of such a dam, or whose land is cut off from the pond, when the water is lowered, by reason of a strip of land belonging to the State intervening between his land and the water, suffers special damage within this rule. Pot- ter v. Howe, 141 Mass. 857 (18S6). 12. A. and B. entered into an indenture, by which A. granted to B., his heirs and assigns, the right to build a mill or mills, and the " privilege to draw and use the water from the mill-pond above said dam for the purpose of carrying said mill or mills;" and A. re- served to himself, his heirs and assigns, " the first and exclusive right to the use of sufficient water from said pond to carry a fulling-mill and three breast-wheels each twelve feet in diameter and fifteen feet in length, with the machinery and works that may be attached to or connected with the same." A., for him- self, his heirs and assigns, covenanted that he would maintain and keep the mill-dam iu good repair, and would erect and keep a flume in repair ; and that he and his heirs and assigns " will not draw or use any of the water from 675 MONEY. 676 the aforesaid mill-pond when there is not suf- ficient head of water in said pond to carry a fulling-mill and three breast-wheels as afore- said." Held, on a bill in equity by a person claiming under B., to restrain a person claim- ing under A. from removing the breast-wheels and substituting therefor turbine wheels, that the indenture did not restrict A. and those claiming under him to the use of breast- wheels, but that the terms of the reservation, so far as they referred to breast-wheels, were intended to describe the quantity of water the use of which was reserved ; and that the bill could not be maintained. Coburn v. Middle- sex Co., 142 Mass. 264 (1886). 13. On a complaint, under the mill act, brought by A. against B., the Superior Court determined that B. maintained his dam higher than he had a right to maintain it in that part of the year between April 12 and Novem- ber 1. After this adjudication, the jui'y found that the height of the dam between April 12 and November 1 should be established at its height as viewed on October 16, 1883, and that it should be left open a space of not less than ten feet in width ; and fixed the past dam- ages, and determined what would be proper compensation for future damages. B. paid both sums. A. afterwards brought an action against B. for maintaining his dam higher than he had a right to maintain it. The judge ruled, "that the former finding of the court and jury should be construed to mean that' the defendant was not required to alter his dam as to height from what it was on October 16, 1883; and that the former jury had a right to fix the height as they did fix it, although the finding of the court, that it was higher than the defendant had a right to have it, had been made." Held, that A. had no ground of exception. A ikins v. Witherell, 142 Mass. 482 (1886). 14. The St. of 1791, c. 32, incorporated a navigation company, and authorized it to build such dams, locks, and canals as were necessary for its purposes. The St. of 1880, 0. 148, which was accepted by the corporation, provided that the corporation might maintain and use its dams, locks, and canals "as at present constructed ; ' ' authorized it to con- struct other dams, locks, and canals for the purpose of creating a water power to use or to lease for manufacturing purposes; provided that, for those purposes, the corporation should have all the powers and privileges, and be subject to all the duties, liabihties, and restrictions, set forth in the general laws re- lating to manufacturing and other corpora- tions ; relieved the corporation from the obli- gation to support its dams, locks, and canals for the purposes of navigation; and discon- tinued its canals as a navigable highway. Held, that the corporation, by accepting the St. of 1880, waived its right to build and maintain its dam at a greater height than that of the dam when the statute was passed; and that, if it did so, a person injured thereby could maintain a complaint under the mill act. Pub. Sts. c. 190. Comins v. Turner's Falls Co., 142 Mass. 443 (1886). MINGLED GOODS. See CoNFDSioif. MINOR. See Guardian; Infant; Master and . Servant; Parent. MISDEMEANOR. See the various titles of the criminal law. • MISJOINDER. See Indictment; Parties; Pleading. MISNOMER. See Name. A complaint by Charles J. Rock alleged that the defendant, at a time and place named, " unlawfully did sell intoxicating liquors to Charles Rock aforesaid." At the trial, the complainant testified to a sale to himself by the defendant of intoxicating liquor at the time and place alleged; and fur- ther testified that his proper name was Charles J. Rock ; that he was so baptized ; and that he was called Charles Rock, and was as well known by that name as by the name of Charles J. Rock. Held, that there was no variance between the allegations of the complaint and the proof. Commonwealth v. O'Hearn, 132 Mass. 553(1882). See also Deed, I. pi. 4. MISREPRESENTATIONS. See False Pretences; Fraud; Insurance. MISTAKE. See Assumpsit ; Equity. See also leading titles. MONEY HAD AND RECEIVED; MONEY LENT; MONEY PAID. See Assumpsit; Evidence. 677 MOKTGAGE, I. 678 II. III. IV. MORTGAGE. Or Real Estate. (a) What does or does not constitute a Mortgage; Bonds to Reconvey. (6) Validity and Construction. (c) Respective Rights and Interests of the Parties. (d) Transfer of Rights in Mortgaged Estates. (e) Discharge, Extinguishment, and Merger of a Mortgage; Pay- ment of Mortgage Debt. (f) Foreclosure. (g) Redemption. (1.) Generally. (2.) Adjustment of Mortgagee's Account; Improvements; Interest; Repairs; Rents and Profits. Mortgage with Power of Sale. Of a Railroad. Of Personal Property. Of the effect of a covenant to assume a mortgage, see Covenant. As to the cancellation of a discharge exe- cuted by mistake, see Equity, V. pi. 2, 3; for other cases concerning mortgages, see Equity, I. pi. 1, 3, II. pi. 2. Of the rights of a mortgagee who purchases or redeems under a tax sale, see Dower, pi. 6; Tax. See also Bond, pi. 2; Collateral Se- curity; Eastern Railroad; Fixtures; Equity Pleading And Practice, I. ; Es- toppel; Husband and Wife; Insolvent Debtor, II. pi. 4, IV. pi. 3; Insurance; Interest; Joint Tenant; Justice op the Peace, pi. 4; Law and Fact, II. pi. 6; Landlord and Tenant, I. pi. 1, VIIL, IX. ; Lien, II. ; Limitation, I. pi. 4, II. pi. 6 ; Mill, pi. 3; Payment; Pledge; Railroad. 1. Op Real Estate. (a) What does or does not constitute a Mortgage; Bonds to Reconvey. 1. Recorded deeds of land, with contempo- raneous though unrecorded agreements of defeasance, are, in equity at least, mortgages, leaving an equity of redemption in the grantor. Moors Y. Albro, 129 Mass. 9 (1880). 2. A. conveyed to B. by deed certain land, subject to two mortgages, then overdue, "both of which mortgages, and the notes secured thereby and interest thereon, the said grantee by the acceptance of this deed assumes and agrees to pay and save me harmless there- from, the same forming part of the considera- tion." Contemporaneously with the execu- tion of this deed, B. agreed in writing under seal, with A., to save A. harmless from cer- tain promissory notes amounting to a certain sum, and upon payment of that sum by A. at any time within one year, to reconvey to A. the land in question free from all incum- 1 brances the deed from A. to B. During the year, the holder of the second mortgage foreclosed, and sold the land for a sum insufficient to pay that mortgage. Held, in an action by A. against B. for the balance due on the second mort- gage, that the deed and the agreement to re- convey, taken together, constituted a third mortgage on the land, from which A. was entitled to redeem upon the payment to B. of the amount secured thereby; and that the action could not be maintained. Gaffney v. Hicks, 131 Mass. 124 (1881). (b) Validity and Construction. 1 . The condition of a mortgage of land recited that, if the grantor should pay the grantee a certain sum with interest in a certain time, the deed, as well as a promissory note for the amount stated, with interest, should be void. The note referred to made no mention of in- terest. The mortgagor, under a threat to foreclose the mortgage, paid both principal and interest, and brought an action against the mortgagee, under Gen. Sts. c. 140, § 30, to recover the amount of the interest. Held, that parol evidence was admissible to show that the note was the only debt secured by the mortgage ; and that, if this were proved, the action could be maintained. Hampden Cotton Mills V. Payson, 130 Mass. 88 (1881). 2. A. made and delivered his promissory note, secured by a mortgage of land, to B., who had the mortgage recorded. There was no consideration for the note, and the mort- gage was made by A. and received by B. with intent to defraud A.'s creditors, and on a secret trust for A. B. afterwards returned the mort- gage to A. and offered to return the note soon. A. told him to destroy the note, and he prom- ised to do so. The mortgage thereafter re- mained in A.'s possession; and, upon B.'s death subsequently, the note was found among his papers by his administrator, who demanded payment of A. and threatened to foreclose the mortgage. A., to protect himself against the mortgage and to have it set aside by proceed- ings in equity, borrowed a sum of money of C. and gave his promissory note therefor, secured by a mortgage upon the same prem- ises. 0., when he lent the money and took the mortgage, knew of the mortgage to B., and of A.'s purpose in borrowing the money, and participated therein, and did so with the belief that the first mortgage was invalid, and in order that A. might have such benefit as he could derive from the enforcement of the second mortgage against the first. Held, that p., to the extent of his debt, stood in the position of a bona fide purchaser with notice; and that his mortgage was entitled to priority over the first mortgage. Hill v. Ahern, 135 Mass. 158 (1883). 3. Under a condition in a mortgage of land, given in 1874, that the mortgagor " shall pay all taxes and assessments on the granted premises," he is bound to pay the taxes assessed, under the Pub. Sts. c. 11, §§ 13 et seq. , upon the amount of the mort- , except the two mortgages named in | gagee's interest in the premises; and, until 679 MORTGAGE, I. 680 he has done so, he cannot maintain a bill in equity to compel the mortgagee to discharge the mortgage. Hammond v. Loveli, 136 Mass. 184 (1883). 4. A mortgage " of all the right, title, and interest which we now or may hereafter have in and to the property and estate of J. de- ceased, testate, whether the same comes to us by will or descent, a part of said property being the late homestead of said J.," does not include land which was originally part of the homestead of J., but which was conveyed by him to one of the mortgagors before his death. Wentworth v. Daly, 136 Mass. 423 (1884). 5. If the language of a mortgage of real estate excludes a certain parcel of land, evi- dence of an intention of the parties to include it is not admissible, on a bill in equity to re- deem the parcel from a sale for taxes, against a third person. Wentworth v. Daly, 136 Mass. 423 (1884). 6. A mortgage made by A. embraced four different parcels of land. Each of the first three parcels was described separately by a general description referring to the deeds, re- corded in a certain registry, by which it was conveyed to him, with an exception of the lots embraced in such parcel which had been previously conveyed by the mortgagor. The lourth parcel was described as " the land by me owned" in a certain locality; "for boundaries and description reference is made to deeds to me recorded in said registry; " and the deed did not in terms except lots in this locality previously conveyed. In fact, the mortgagor had previously conveyed a por- tion of the fourth parcel by a deed which was not recorded until after the mortgage was recorded. Held, that such portion did not pass by the mortgage. Fitzgerald v. it%, 142 Mass. 235 (1886). 7. A woman, whose mind was so impaired by old age and sickness that sh'j had not sufficient mental capacity to execute a deed, executed a mortgage of her real estate to a creditor, who practised no fraud, to secure a claim which was then due, whereby payment of the claim was postponed for a year. She died eighteen months afterwards, and five months after her death her devisee brought a bill in equity to set aside the mortgage. Held, that he could, on these facts, maintain the bill; and that his presence when the mort- gage was executed did not estop him from so doing. Brigham v. Fayerweaiher, 144 Mass. 48 (1887). (c) Respective Rights and Interests of the Parties. 1. If mortgaged land in a city is sold for a tax assessed to the mortgagor, and conveyed by the collector of taxes to the city, under St. 1862, c. 183, and let to the mortgagor as a tenant at will, the mortgagee has no right, before redemption, to possession for breach of a condition in the mortgage. Coughlin v. Gray, 131 Mass. 56 (1881). 2. The use by the grantee of an easement in land previously mortgaged by his grantor, does not begin to be adverse until possession is taken by the mortgagee. Murphy y. Weldi 128 Mass. 489 (1880). 3. A mortgagor of land, who has con- sented, without consideration, that the mort- gagee might bring an action at law in his name against a person who, by the terms of a deed poll to him from the mortgagor, has promised to pay the mortgage, may withdraw his consent, and have the action dismissed. Coffin V. Adams, 131 Mass. 133 (1881). (d) Transfer of Bights in Mortgaged Kstates. 1. If a second mortgagee of property, who is also a co-assignee in bankruptcy of the estate of the mortgagor, makes a quitclaim deed of the property to a third person, this constitutes the latter an assignee of the second mortgage, and does not pass the in- terest of the grantor as co-assignee in bank- ruptcy ; and the equity of redemption remains in the assignees in bankruptcy. Southmck v. Atlantic Ins. Co., 133 Mass. 457 (1882). 2. An unauthorized assignment and de- livery of a mortgage, the property of a sav- ings bank, by its treasurer, is an embezzlement of the mortgage, although his act did not pass the title of the bank. Commonweallh v. Pratt, 137 Mass. 98 (1884). 3. An assignment and delivery of a mort- gage, the property of a savings bank, by its treasurer, for his own use and benefit, is au embezzlment of the mortgage, although the treasurer believed that he had authority to assign the same for the benefit of the bank. Commonwealth v. Pratt, 137 Mass. 98 (1884). 4. An assignment of a mortgage held by an incorporated savings bank purported to be the deed of the bank, and to assign " the mortgage deed, the real estate thereby con- veyed, and the note and claim thereby se- cured." It was signed in the name of the bank by A. B., treasurer. The in testimonium clause read, "In witness whereof, 1, A. B., treasurer of said corporation, have hereunto set my hand and seal. ' ' The promissory note which the mortgage was given to secure was indorsed, " A. B., treasurer." Held, that, if the assignment was so defectively executed as not to transfer the mortgage and land, the note and claim thereby secured passed, and that a court of equity would correct the assignment, and treat the mortgage as trans- ' ferred with the debt. Commonweallh v. Read- ing Savings Bank, 137 Mass. 431 (1884). 5. In 1871, a husband advanced money to his wife for the benefit of her separate estate, and she, in consideration thereof, made a promissory note payable to A. or bearer, and executed to A., as security therefor, a mort- gage of a parcel of land. A. assigned the mortgage to the husband, and delivered the note to him. The husband afterwards, dur- ing the life of the wife, assigned the note and mortgage to B., who entered to foreclose the mortgage, and brought a writ of entry, against a person claiming under the wife, to recover 681 MORTGAGE, I. 682 possession of the land. Held, that the 'writ could be maintained. Butler v. Ives, 139 Mass. 202 (1885). 6. A mortgagee of land executed and ac- knowledged an assignment in blank of the mortgage, and orally authorized his son to find a purchaser, write in the latter's name as grantee, and deliver the assignment. The son did so, the assignee not knowing that the son was acting as agent in any respect except to deliver the assignment. Held, that the assign- ment was valid. Phelps v. Sullivan, 140 Mass, 36 (1885). 7. The owner of land mortgaged it to A., and then mortgaged it to B., who had notice of the earlier mortgage, and who recorded his mortgage before the mortgage to A. was re- corded. After both mortgages were recorded, B. assigned his mortgage to C, who had no actual notice of the mortgage to A. Held, on a writ of entry by A. against C, that C. had the better title to the land. Morse v. Curtis, 140 Mass. 112 (1885). 8. A conveyance of land made by a mort- gagee, which declares that it is made by virtue and in execution of the power contained in the mortgage, and of every other power him thereto enabling, operates as an assignment of the mortgage, even if the fee is not con- veyed by reason of a defect in the execution of the power of sale; and, after an entry has been made for breach of the condition of the mortgage, the assignee may maintain a writ of entry against a person in possession who shows no title to the land. Holmes v. Tur- ners Falls Co., U2 Mass. 590 (1886). Of transfer of rights by legal process, see Attachment; Execution. (e) Discharge, Kxtinguishment, and Merger of a Mortgage; Payment of Mortgage Debt. 1. An owner of a parcel of land mortgaged it to B., and devised it to A. for her life, and at her death to C, and appointed A. execu- trix. A., acting as executrix, although the will was not proved and allowed until seven years afterwards, took possession of the estate, sold portions of it with which to pay debts, and substantially settled the estate ; but did not pay the mortgage, although the assets of the estate were sufficient. D., acting in col- lusion with A., and with the fraudulent pur- pose of extinguishing the rights of C, bought and took an assignment of the mortgage held by B., and made an entry for the purpose of foreclosing; the usual certificate was duly made and recorded, together with the as.sign- ment. During the three years following the entry, A. repeatedly stated to C. that she was keeping the mterest paid up. A. continued to occupy the estate after the entry by D., who subsequently conveyed all his interest therein to her. A. afterwards mortgaged the estate to E., who had no knowledge of the collusion between A. and D. A. died, leaving said estate to F., who was appointed executor. The estate of A. was more than sufficient to pay all her debts, including the mortgage to E. C. did not know of the purchase of the mortgage by, or the entry of, D. until after the death of A. Held, on a bill in equity by C. to redeem, that the mortgage to B. was discharged ; that the mortgage to E. was valid, and that P. must surrender the premises to C, and account for the rents and profits since the death of A. Morse v. Basseit, 132 Mass. 502 (1882). 2. The mortgagee of a large parcel of land, pending negotiations with the mortgagor for a release of the equity of redemption, con- veyed, by warranty deed, a portion of the land to the plaintiffs, who knew the state of the title, and who took possession of the land conveyed to them. The negotiations having failed, the mortgagee entered to foreclose. A few months afterwards, H., who had full knowledge of these facts, agreed with L., one of the plaintiffs, to furnish him with money to buy the mortgage from the mortgagee, L. to take an assignment of the mortgage to him- self, release the mortgage on the plaintiffs' land to the mortgagee, and then assign the mortgage, excepting the release, to H., it being supposed that this would perfect the plaintiffs' title. This arrangement was car- ried out except that L. quitclaimed the plain- tiffs' land to the mortgagee, and then exe- cuted a release or discharge of the mortgage to H. instead of an assignment. H. in the mean time procured a deed of the entire land from the mortgagor, which fact was known to L. when he executed the discharge of the mortgage. Held, on a bill in equity to re- strain H. from prosecuting a writ of entry to obtain possession of the land conveyed to the plaintiffs, and to compel him to transfer his interest in the land to the plaintiffs, that the conveyance by the mortgagee to them operated as an equitable assignment of the mortgage held by their grantor, and that the plaintiffs were entitled to no other relief than that H. be restrained from prosecuting the writ of entry until payment to them of the amount they had paid for the land. Smith v. Hitch- cock, 130 Mass. 570 (1881). 3. If a person conveys, in fraud of his creditors, land subject to a mortgage, and the grantee, although he does not assume the mortgage debt, pays the mortgage, which is discharged on the record, aud then conveys the land to a third person, and afterwards a judgment creditor of the first grantor levies upon the land by a sale of it as an equity of redemption, the payment and discharge "will not be treated as an assignment of the mort- gage, such not being the intention of the parties to the transaction, and a levy, there- fore, as upon an equity of redemption, is void. Mansfield v. Dyer, 133 Mass. 374 (1882). 4. A. mortgaged land to B., and subse- quently to C. by a deed which was signed and sealed by B. as well as by A., but B.'s name did not appear in the deed except in the in testimonium clause, as " mortgagee named in a rnortgage on said premises, for the purpose of discharging said mortgage." This deed was aclsnowledged by A., but not by B., and was recorded. No reference was made on the mar- 683 MORTGAGE, I. 684 gin of the record of the first mortgage to the second. B. died, and his administrator assigned the first mortgage to D., who purchased it in good faith and for a valua- ble consideration. C. and D. then foreclosed their mortgages. Held, that D. could not maintain a writ of entry against C. to obtain possession of the land. Allen y. Leominster Savings Bank, 134 Mass. 580 (1883). 5. Land subject to a mortgage was con- veyed by the mortgagor, the grantee assuming and agreeing to pay the mortgage. The grantee subsequently conveyed the land to the mortgagee by a deed which recited that the conveyance was subject to the mortgage. Held, that the mortgage was thereby merged; and that the mortgagee could not maintain an action against the mortgagor on the mort- gage note, although the value of the land, at the time of the last conveyance, was less than the amount of the mortgage. Dickason v. Williams, 129 Mass. 182 (1880). 6. A. mortgaged land to B. and C. to secure them against liability as sureties on a note of even date given by A. to a bank for money lent. It contained a power of sale upon de- fault for breach of the condition, included in which was the payment of the note by the principal to the holder, which power was to be exercised by the mortgagees, or the sur- vivor or the executor or administrator of the survivor of them. Afterwards, A., who oc- cupied mortgaged premises, executed a quit- claim deed of the same to B. and C, who gave a bond to reconvey them, within a time named, upon certain terms and conditions. The quitclaim deed was recorded, but the bond was not, and A. never complied with its terms. The mortgage when made was delivered to the bank, in pursuance of the original agreement between the parties, and was recorded ; the loan was then made to A. , and the mortgage has since remained in the custody of the bank. Sales, with warranty, of portions of the mortgaged premises were subsequently made, some of which were as- sented to by the bank after they were made, and others were previously authorized by the bank, payment of sums satisfactory in amount upon the mortgage being made in all cases, and receipts therefor given by the bank. One half of the amount then due on the note was afterwards paid to the bank by the adminis- trator of C, who survived B., upon the agree- ment that it was to be " in full payment of claim on said note, provided the balance due on the note be paid by the estate of B., or by any one for said estate or for themselves." Such balance was not paid to the bank. A creditor of the residuary devisee of B. filed a bill in equity to have the mortgage declared of no validity, and to restrain the adminis- trator of C. from selling the mortgaged prem- ises to satisfy the balance claimed to be due the bank upon the note. C.'s administrator, the residuary devisee of B., and the bank filed a cross bill, asserting the existence of the debt to the bank, the validity of the mort- gage, and the right of C.'s administrator to sell the real estate to satisfy the debt still due the bank, and to reimburse the sureties for the sums paid by them. It- was found as a fact, that, when the quitclaim deed was made by A. to B. and C, it was not intended by the parties to operate as a merger of the mort- gage title. Held, that the original bill should be dismissed; and that the cross bill could be maintained. Aldrich v. Blake, 134 Mass. 682 (1883). 7. A bill in equity by a mortgagor, to compel the mortgagee to discharge the mort- gage, alleged that the defendant "agreed that, if the plaintiff would pay him the sum of $40, he would allow him to take up the balance of the same; that the plaintiff agreed to take up said mortgage upon these terms, and then paid the defendant the balance of said mortgage and $40 in addition thereto; and, in consideration thereof, the defendant agreed to discharge said mortgage upon the record." The mortgage contained the condi- tion that the mortgagor "shall pay all taxes and assessments on the granted premises." Held, on demurrer, that the bill did not set up any agreement by the defendant to dis- charge the mortgage without performance by the plaintiff of all its conditions. Hammond V. Lovell, 136 Mass. 184 (1883). 8. T. conveyed a parcel of land to O. by a mortgage not containing a power of sale, and, after a breach of the condition, 0. made an entry for possession, and afterwards assigned the mortgage to the wife of M., " together with the possession taken to foreclose said mortga|;e." The consideration expressed in the assignment was the same as that in the mortgage. The heirs of T. , one of whom was the wife of O., together with O., who joined in the deed, conveyed the land to M., " sub- ject to a mortgage " described, which was the one above named. M. then mortgaged the land to O., with full covenants of wan-anty and against incumbrances. M.'s wife did not join in the grant, but joined in the in lesti- monixim clause, releasing her rights of dower and homestead, and as follows: " And also, as further security for the mortgage, I release and convey my interest under the mortgage given by T. to O." She died intestate, leav- ing her husband M. and a child surviving her; and letters of administration were taken out on her estate. O. , for breach of the condition of the mortgage from M. , sold the land, under a power of sale in the mortgage, by public auction. Held, in an action by the purchaser at the sale against O. to recover the amount of a deposit made in accordance with the terms of sale, On the ground that the title to the land was defective, that the mortgage from T. to O. was not extinguished, and was an outstanding title. Held, also, that evi- dence of the manner in which the considera- tion of the deed to M. was paid, and of the purpose _for which the assignment to M. s wife was made, was inadmissible to control the effect of the conveyances. Cal(aghan v. O'Brien, 136 Mass. 378 (1884). 9. The mortgagor of two parcels of land conveyed them subject to the mortgage, it being understood between the mortgagor and 686 MORTGAGE, I. the grantee that the latter was to pay the mortgage. Subsequently the grantee con- veyed one of the parcels, and the mortgagee, understanding and believing that, under the contract between the mortgagor and his gran- tee, the mortgage debt was to be primarily a charge upon the land, released the mortgage as to this parcel on payment of a sum less than the value thereof, without the consent of the mortgagor, reserving his right to enforce the mortgage against the remaining parcel. Subsequently the mortgagee sold this parcel under the power contamed in the mortgage, and brought an action against the mortgagor to recover the balance due on the mortgage debt. Held, that the action could be main- tained notwithstanding the release. Held, also, that the defendant was entitled to have applied in payment of the debt the full value of the parcel released, although the mortgagee in releasing the parcel acted in good faith. Worcester Mechanics' Savings Bank v. Thayer, 136 Mass. 459 (1884). 10. If the owner of land, who holds it sub- ject to two mortgages made by his predeces- sors in title, conveys it, reserving an easement therein, to the first mortgagee, by a warranty deed, in which the grantee assumes and agrees to pay both mortgages and to hold the grantor harmless therefrom, the first mortgage is ex- tinguished; a foreclosure of that mortgage, by a sale under a power contained therein, is in- valid ; and the second mortgagee may maintain a writ of entry against the first mortgagee to foreclose the second mortgage. Kneeland v. Moore, 138 Mass.. 198 (1884). (f) Foreclosure, 1. A second mortgagee may maintain a writ of entry to foreclose against the first mort- gagee and owner of the equity of redemption. Cochran v. Goodell, 131 Mass. 464 (1881). 2. Two mortgagees of land, holding several mortgages, given at the same time to secure several obligations, are tenants in common, and may join in a writ of entry to foreclose their mortgages under Gen. Sts. c. 140, § 8. Cochran v. Goodell, 131 Mass. 464 (1881). 8. A mortgagee, who has once entered to foreclose, need not, in a writ of entry to re- cover the land, allege his seisin to be in mort- gage. Gen. Sts. c. 129, § 3, and c. 140, § 3, apply to actions brought by the mortgagee to foreclose.- Simpson v. Dix, 131 Mass. 179 (1881). 4. A. conveyed land to B., who, in turn, conveyed the land to A.'s wife. Both deeds purported to be for a valuable consideration, and were recorded. A.'s wife, while St. 1857, c. 249, was in force, mortgaged the land to C., A. assenting thereto in writing, but not join- ing as grantor. Held, on a writ of entry to foreclose the mortgage, that the wife could not impeach C.'s title by showing that the deeds from A. to B., and from B. to her, were given without consideration. Chapman v. MUler, 130 Mass. 289 (1881). 5. On a writ of entry to foreclose a mort- gage, if neither party moves for conditional judgment, judgment is to be entered in the common form, under Gen. Sts. c. 140, § 4, and the demandant cannot recover money paid for insurance. Provident Savings Institution V. Burnham, 128 Mass. 458 (1880). 6. An entry, by an assignee of a mortgage, upon mortgaged premises, made, certified, and recorded as provided in the Gen. Sts. u. 140, §§ 1, 2, will have the effect to foreclose the mortgage, after the expiration of three years, as against a second mortgagee, although the assignee had purchased the land after both mortgages were made, and held it at the time of making the entry, and although the second mortgagee was ignorant of the entry until after the expiration of the three years. Tompson V. Tappan, 139 Mass. 506 (1885). 7. The fact that, before the expiration of three years from the date of an entry upon land to foreclose a mortgage thereon, the mortgagee received the avails of other security held by him for the same debt, but to an amount less than that of the mortgage debt, does not of itself prove an intention on his part to waive the foreclosure. Tompson v. Tappan, 139 Mass. 506 (1885). 8. A mortgage of land was given to secure the payment of a certain sum of money in in- stalments at different dates, for which prom- issory notes were given. A. held two of the notes by gift from a person, to whom they were indorsed by the mortgagee, with an oral agreement to hold the mortgage in trust to secure them. The mortgagee afterwards transferred the other notes and the mortgage to B., who had notice of this agreement. B. received payment of his notes, surrendered them to the mortgagor, and afterwards as- signed the mortgage to A. Interest was paid on the two notes held by A., and the mort- gage was recognized as outstanding by the mortgagor, who conveyed the land to C. by a deed which also referred to a mortgage as outstanding. Held, that A. could maintain a writ of entry to foreclose the mortgage against C, brought within twenty years of such pay- ment of interest, although the notes were barred by the statute of limitations. Norton V. Palmer, 142 Mass. 433 (1886). (g) Redemption. (1.) Generally. 1. The holder of an equity of redemption in a parcel of land, who was under no obliga- tion to pay either of two mortgages existing on the land and duly recorded, in ignorance of the second mortgage, for the purpose of perfecting his title, made a part payment on the first mortgage, and afterwards, on being informed of the second mortgage, paid the balance due on the first, and caused that mortgage to be assigned to a third person in trust for himself. Held, that the holder of the second mortgage was not entitled to redeem the first, except by paying the full amount thereof. Ryer v. Gass, 130 Mass. 227 (1881). 2. A mortgage of land provided that the mortgagor should pay a certain sum in five 687 MORTGAGE, I. 688 years, ■with interest payable semiannually; and should pay all taxes and assessments ; that he might at his option pay the whole or any part of the debt at any time within five years ; and that the mortgagee would at any time release any portion of the premises upon pay- ment of a certain sum per foot for the portion so released. After default of interest, taxes, and principal, a person who bought the land subject to the mortgage brought a bill in equity against the mortgagee to compel the release of a portion of the premises. No demand for such release, nor tender of the stipulated price per foot, was made until more than two years after the expiration of the time for the payment of the principal; and the mortgagee had not by any act waived or deprived himself of any rights under the mortgage. Held, that the bill could not be maintained. Reed v. Jones, 133 Mass. 116 (1882). 3. If a policy of insurance against fire upon mortgaged premises, payable in case of loss to the mortgagee as his interest may appear, provides that the policy shall be void if the premises become vacated, and that the insur- ance, "as to the interest of the mortgagee only therein," shall not be invalidated by acts of the mortgagor, and that, when a loss after a forfeiture is paid to the mortgagee, the in- surance company shall be subrogated to his rights under the mortgage to the extent of such payment, and may pay the full amount of the debt to the mortgagee and shall there- upon receive an assignment of the mortgage, and a loss by fire occurs while the premises are vacant, and, upon payment by the com- pany to the mortgagee of the amount due on the mortgage, the latter assigns the same to the company, a second mortgagee and owner of the equity of redemption of the first mort- gage cannot redeem the premises from the first mortgage, without paying to the com- pany the full amount of the debt secured by that mortgage. Allen v. Watertovm Ins. Co., 132 Mass. 480 (1882). 4. If the last day of the three years limited by Gen. Sts. o. 140, § 1, for the redemption of land from a mortgage, falls on Sunday, a tender of the amount due on the mortgage upon the following day is too late. Haley v. Young, 134 Mass. 364 (1883). 5. A plaintifE in a bill in equity to redeem land from a mortgage, who conveys his inter- est in the land pendente Hie, is not entitled to a decree. Johnson v. Thompson, 129 Mass. 398 (1880). 6. By the terms of a mortgage of land, the mortgagee agreed with the mortgagor, his legal representatives and assigns, to release any portion or portions, on being paid a cer- tain rate per foot, all sums so paid to be in- dorsed on the mortgage note, the mortgagee not being required to release so as to impair the mortgage as security for the part of the debt remaining unpaid. The mortgagor di- vided up the land into lots, and on two of them built dwelling-houses.. He conveyed one of these lots to A., by a warranty deed, and afterwards conveyed the other lot to B., by a warranty deed. The mortgagee, against A.'s protest, allowed B. to redeem his lot by pay- ing the price per foot stated in the mortgage. The land remaining unsold was not sufficient to satisfy the mortgage debt, though it was sufficient with B. 'slot. Held, that A. could not maintain a bill in equity to restrain the mortgagee from selling A.'s lot under tlie power contained in the mortgage; but was entitled to redeem on paying the stipulated price per foot. Clark v. Fonlain, 135 Mass. 464 (1883). 7. A bill in equity by the guardian of an insane person, to compel a reconveyance of land conveyed by his ward to the defendant, alleged that, although the deed was absolute in form, it was intended by the parties only as a mortgage to indemnify the defendant against loss upon a bond, executed by him as part of the same transaction, and conditioned for the payment of debts and legacies men- tioned in the will of the obligee, said ward, in case the estate of t|he latter was not sufficient to pay them at the time of his decease. Held, on demurrer, that the deed was sufficiently alleged to have been a mortgage. Warfield v. Fisk, 136 Mass. 219 (1884). 8. A guardian of an insane person may maintain a bill in equity, to compel a recon- veyance of land conveyed by his ward to in- demnify the grantee against loss upon a bond, executed by him as part of the same transac- tion, and conditioned for the payment of debts and legacies given by the will of the ward, in case the estate of the latter is not sufficient to pay them at the time of his decease, the deed, though absolute in form, having been intended by the parties only as a mortgage, the laud being necessary for the ward's support, and a surrender of the bond and a release of the obligor's liability upon it being offered. War- field V. Fisk, 136 Mass. 219 (1884). 9. In 1874, F., the owner of land, mort- gaged it to W. In 1875, W. assigned the mortgage to H., but the assignment was not recorded until 1882. In 1876, W. by mistake discharged the mortgage on the margin of the record thereof in the registry of deeds. In 1877, before the St. of 1877, c. 229, took effect, W. and H. brought a bill in equity against F. to have the discharge of the mort- gage cancelled. In 1876, after the discharge of the mortgage, and in 1877 and 1878, a tax on the land was assessed to F. as owner, and, not being paid, the land was sold in 1879 to J., by the collector of taxes of the town in which the land was situated, and deeds in due form to J. were executed by the collector, and recorded. In 1882, a decree was entered in the bill in equity ordering a cancellation of the mortgage, which decree was recorded, in the same year, in the registry of deeds, and there was no evidence that J. had any knowl- edge of the suit prior to such record. Soon after, in the same year, H. foreclosed the mortgage by a sale under the power therein contained, and conveyed the land to himself. More than two years after the sale for taxes, but within two years after H. had knowledge of such sale, he made a tender to J., for tlia 689 MORTGAGE, I. 690 purpose of redeeming the land. Held, that, on the tender being refused, H. could main- tain a writ of entry against J. to recover pos- session of the land. Hawes v. Howland, 136 Mass. 267 (1884). 10. If a decree in equity is entered that the plaintiff is entitled to redeem land from a mortgage on payment of a certain sum, and the plaintiff alone appeals on the gi'ound that he ought not to be compelled to pay so large a sum, it is not open to the defendant to contend that the plaintiff is not entitled to redeem at all. May v. Gates, 137 Mass. 389 (1881). 11. On a bill in equity to redeem a mort- gage, a person who became an assignee of the mortgage after maturity of the note which it was given to secure, stands in no better posi- tion than his assignor. Bacon v. Abbott, 137 Mass. 397 (1884). 12. After a mortgage of land was executed, the mortgagor went into bankruptcy, but paid his creditors in full, and, after filing a bill in equity to redeem the land from the mortgage, received his discharge in bankruptcy. His assignees, at the hearing on the bill, stated that they were willing to convey the land to the proper person. Held, that the bill could be maintained. Bacon v. Abbott, 137 Mass. 397 (1884). 13. R., the agent of T., the owner of a lot of land, made an arrangement with N. to buy the land, but at no definitely fixed price. N. entered into a contract with a builder to erect a block of houses, for which he was to be paid in instalments, partly in cash and partly in promissory notes guaranteed by R. After the houses were partially completed, to enable T. to get the benefit of the improvements placed upon the land, T., with knowledge that N". was insolvent, executed a deed of the land to N. at a price more than twice its real value without the improvements, and N. made a mortgage of the same back to T., to secure his promissory note for a sum of money much greater than the value of the land without the improvements. The note was payable at a fixed time. It was also under seal, and referred to the mortgage. The mortgage gave N. the right to pay the debt in instalments from time to time. T. subsequently, and be- fore the maturity of the note, assigned the mortgage and note to trustees, in trust to pay certain unsecured creditors, and to pay over the surplus to him. Subsequently these cred- itors, by an instrument to which T. was not a party, agreed with the trustees to extend the time of payment of their claims. Held, on a bill in equity by the assignees in insolvency of N. against T. and his trustees, that the assignees were entitled to redeem the land from the mortgage on payment of its value without the improvements ; and that the trus- tees did not stand in the position of bona fide purchasers for a valuable consideration. Held, also, that the creditors were not necessary parties to the bill. Held, also, that the court would not act on a suggestion, made for the first time in this court, that R. should be made a party, it not appearing that the rights of the plaintiffs as against the defendants could not otherwise be determined. Jeuiett v. Tucker, 139 Mass. 566 (1885). 14. A conditional judgment, rendered upon a writ of entry brought by a mortgagee of land against the mortgagor in possession to foreclose his equity of redemption therein, is not conclusive of the amount then due on the mortgage, against one who has purchased the equity of redemption before the bringing of the writ of entry, on a biU in equity by him to redeem the land. Dooley v. Potter, 140 Mass. 49 (1885).. 15. Where a mortgage of land contains a power of sale, the mortgagor may, under the Pub. Sts. c. 181, §27, after breach of the con- dition of the mortgage, and befoi'e a sale of the premises conveyed by it has actually taken place, without a previous tender, bring a bill in equity to redeem the land, on offering in the bill to pay what is due. Way v. MvMett, 143 Mass. 49 (1886). 16. If there have been successive sales of land to different purchasers, for non-payment of taxes assessed thereon, a bill in equity to redeem the land, brought by the original owner against the last purchaser, cannot be maint lined, if the right to redeem, as against the first purchaser, has been lost by failure to bring the bill within five years, as specified in the Pub. Sts. c. 12, § 66, from the first sale, although five years from the last sale have not expired; and it makes no difference that the plaintiff is an infant. O'Day v. Bowker, 143 Mass. 159 (1886). 17. On the day of the date of a writ in which a bill in equity, by A. against B. to redeem land from a mortgage given by A. to B., was brought, C. bought A.'s equity of re- demption in the land at a sale on an execu- tion issued upon a judgment in an action against A., and a deed of such equity was executed and delivered to C, and was duly recorded. B. had previously assigned the mortgage and the note secured by it to C, and the assignment was duly recorded. Service of the writ was afterwards made on B., and C. was also made a party defendant. jSTeither the writ nor a copy was deposited in the oifioe of the clerk of the court until sub- sequently, when the suit was entered. More than one year after the levy of the execution upon A.'s equity, C. conveyed the land by a quitclaim deed to A. B. received, while he held the mortgage, and before the suit was begun, a certain sum, which was more than sufficient to satisfy the mortgage debt. Held, that the bill could not be maintained to re- deem the land ; that the bill should be dis- missed as to C. ; and that A. was entitled to a decree against B. for the amount so received by him. Tyler v. Brigham, 143 Mass. 410 (1887). 18. On a bill in equity by C. against F., in 1878, to restrain P. from foreclosing a mort- gage held by F. on land of C, it appeared that F. held a mortgage from H. on a tract of land which had subsequently been divided by H. into three lots; that by the terms of the mortgage F. agreed with H. , his representa- 691 MORTGAGE, I. 692 tives and assigns, to release any portion or portions of the land, on being paid a certain rate per foot, all sums so paid to be indorsed on the mortgage note, F. not being required to release so as to impair the mortgage as security for the part of the debt remaining unpaid. H., after dividing the lots, built dwelling-houses on two of them. He then con- veyed one of these lots to C. by a warranty deed, and afterwards conveyed the other lot to S. by a similar deed, leaving the vacant lot unsold. F., against the protest of C, allowed S. to redeem his lot by paying the price per foot stated in the mortgage. The vacant lot ■was insufficient to satisfy the mortgage debt, although it was sufficient with the lot of S. In 1883, the court decided that C. was not entitled to maintain the bill ; but allowed it to be amended so as to be in form a bill for a release of the land from the mortgage on pay- ing the stipulated price per foot. C. amended his bill accordingly, and joined S. as a party, but subsequently, by agreement of parties, the bill was discontinued as to S. It appeared from the amended bill, that, after S. paid F. the sum stipulated for the release of his lot, there was due on the mortgage a sum largely exceeding the value of the vacant land. Held, that C. was entitled to a release of his lot, on paying the price per foot mentioned in the mortgage, without interest. Clark v. Fontain, 144 Mass. 287 (1887). (2.) Adjustment of Mortgagee's Account; Im- provements ; Interest ; Repairs ; Rents and Profits. 1. A person died seised of a parcel of land, with a house thereon in vphich he lived. He left a widow and two minor children, a son and a daughter. The real estate was subject to a mortgage, on which a portion of the prin- cipal was due. The personal estate was only {sufficient to pay the debts, not including the mortgage. The widow's dower was not as- signed to her. She continued to live on the land with her children for three years after her husband's death, when she maiTied again. Before her second marriage, she conveyed to her intended husband, by quitclaim deed duly executed, one undivided half of said real estate, also the other undivided half, " to re- vert to him " when her children became of age. After the second marriage, they con- tinued to live in the house, the children being supported by their mother and her husband until the son became seventeen years of age, when he left the premises and ceased to have his home there, and has since taken all his earnings and contributed nothing to the family. The husband afterwards erected a new dwelling-house on the land, the old house having gone to decay; and, by his own labor and means, greatly improved the land after he moved upon it. After her first husband's death, and before her second marriage, the ■widow paid the interest and part of the prin- cipal due on the mortgage, and the second ihusband paid the balance of the principal and the interest, and took and stiU holds the mortgage and note ; and, when the last pay- ment was made, there was written on the mortgage, signed, sealed, and acknowledged by the assignee of the mortgage, the follow- ing: " The within mortgage is hereby dis- chai'ged by me ; " and this instrument was duly recorded. The taxes on the estate have always been paid by the husband and wife. The son afterwards applied by petition to the Probate Court, not making his step-father a party, for an assignment of dower to his mother and for partition of the real estate between himself and his sister, and procured decrees from that court for such assignment and partition, from which his mother and sister appealed, and the appeals are still pend- ing. Held, on a bill in equity by the step- father, mother, and daughter against the son, that the step-father was not entitled to an allowance for the improvements made by him upon the estate, or for the taxes paid by him ; that the mortgage should be treated as as- signed to him for his benefit and that of his wife against the children, who were entitled to redeem upon payment of their proportions of the mortgage debt; and that the children were not chargeable with interest. GucMan V. Riley, 135 Mass. 71 (1883). 2. A. executed a mortgage of land to B., to secure a promissory note for a speciiied amount. In fact, the note was intended to secure advances to be made by B. After B. had made advances to an amount less than the face of the note, he executed an assign- ment of his " interest " in the mortgage and note to C, and indorsed the note in blank, without recourse. B. then sold the note and mortgage to D. for certain property, and de- livered to him the note, on which an instal- ment of interest -was then overdue, the assign- ment to C, and what purported to be an assignment from C. to D. There was no such person as C. in existence; but D. acted in good faith and without notice that the note was given for future advances. After D. had notice of all the facts, he took a new assign- ment from B. When D. took the note, he believed it to be of no value, and relied only on the land as his security. Held, on a bill in equity by A. against D., that A. was enti- tled to redeem only on paying the full amount of the note. Bassett v. Daniels, 136 Mass. 547 (1884). 3. A mortgage of land, securing a promis- sory note, was conditioned for the payment of a certain sum in two months, "with interest ■ as specified in the note." The rate of interest expressed in the note ■was three per cent a month for the two months, and five per cent a month for such further time as any part of the principal should remain unpaid. An agent of the mortgagee had the custody of the mortgage and note, and knew their con- tents, and had full authority to receive pay- ment of the note at any time, and to dispose of it as he saw fit. A creditor of the mort- gagor brought an action against him, aitached his interest in the land, recovered judgment, levied his execution upon the debtor's equity of redemption, and became the purchaser 693 MORTGAGE, I. 694 thereof at a sale. Before the maturity of the note, and while his action was pending, the creditor informed the mortgagee's agent that he had attached the land and wished to pay off the mortgage, and asked him what amount was due. The agent, by falsehood and evasive answers, intentionally misled him, so that no payment was m4de. Subsequently, the cred- itor obtained a decree entitling him to redeem the land from the mortgage. Held, that the mortgagee was estopped, by his agent's con- duct, to receive from such creditor interest at a higher rate than six per cent per annum after the maturity of the mortgage debt ; and that, as the creditor made no offer to pay any sum to the mortgagee, he must pay the ex- penses incurred in proceedings to foreclose the mortgage before the service of an injunc- tion restraining them. May v. Gates, 137 Mass. 389 (1884). 4. On a bill in equity against two persons to redeem a parcel of land from a mortgage, if one of them alone has received rents and profits more than sufficient to pay the mort- gage debt, he alone should be ordered to pay such surplus and costs. Merriam v. Goss, 139 Mass. 77 (1885). 5. After the pai'ties to a mortgage had negotiated for a release of the equity of re- demption, the mortgagee moved a dwelling- house upon the land. Execution of the re- lease was deferred by the mortgagor, and was never made. The house was destroyed by fire after a decree was entered on a bill in equity that the mortgagor was entitled to redeem, but befoi'e the account was taken. Held, that the defendant was not to be allowed for the improvement. Merriam v. Goss, 13U Mass. 77 (1885). 6. On a bill in equity to redeem land from a mortgage, an interlocutory decree was en- tered that the plaintiff be allowed to redeem; that the defendant be allowed for the im- provements made on the premises; and that the case be sent to a master to report the amount due on the mortgage, and the value of improvements placed on the land, after deducting the rents and profits. Held, that the plaintiff was not precluded at the hearing before the master from showing that no im- provements had been made on the land. Mer- riam V. Goss, 139 Mass. 77 (1885). 7. If a mortgagee refuses to accept pay- ment of the mortgage debt, bearing inteiest at a greater rate than six per cent, when tendered by the mortgagor, except upon com- pliance with an illegal demand, on a bill in equity to redeem from the mortgage, interest should be allowed the mortgagee only at six per cent from the time of the tender. Donahue V. Chase, 139 Mass. 407 (1885). 8. The sum paid by a mortgagee, upon taking possession of the premises, for water- rates due from the mortgagor, to prevent the supply of water from being cut off, is properly chargeable to the mortgagor in the mort- gagee's account. Donahue v. Chase, 139 Mass. 407 (1885). 9. In the absence of proof of negligence or want of due diligence on the part of a mort- gagee to procure rent for a tenement on the mortgaged premises, he is not chargeable with the same; and the fact that the mortgagee properly put the mortgagor out of the tene- ment, which thereafter for a time remained unoccupied, is not sufficient to charge the mortgagee with the rent. Donahue v. Chase, 139 Ma.ss. 407 (1885). 10. The mere fact that a mortgagor knows that a person in possession of mortgaged land, and who contemplates buying the mortgage, is putting buildings on the land, and makes no objection thereto, does not prevent him, on a bill to redeem the land, from contesting the reasonableness of the improvements. Merriam V. Goss, 139 Mass. 77 (1885). 11. In 1869, A. gave a mortgage, of which B. became the assignee in 1876, covering land in this Commonwealth and also land in Ver- mont, to secure the payment of certain prom- issory notes made by A. In 1871, A. gave a second mortgage of the land in this Common- wealth to a person who assigned the same to 0. in 1878. Previously to this assignment, B., in 1876, as assignee of the first mortgage, brought a writ of entry against A. to fore- close his equity of redemption in the land in this Commonwealth, obtained conditional judgment therein, and was put into posses- sion thereunder in 1877. In 1876, after the assignment to him of the first mort- gage, B. brought a bill in equity in Vermont against A. to foreclose his right of redemp- tion in the land in that State, and, in 1878, obtained a decree which would become absolute in December, 1879, upon failure then to pay the notes which the mortgage was given to secure. In November, 1879, B. brought an- other bill in Vermont against C, to foreclose the equity of redemption in the same land under the same mortgage, setting forth the decree rendered against A., and alleging that C. claimed some interest in the land by virtue of a deed made to him by A. in 1872. In that suit, it appeared that such a deed had been made to C. in 1872, but had not been recorded until after the decree against A. before stated was rendered; and it was held that said de- cree vvas binding upon C. ; and, in 1882, a conditional decree was rendered against C, founded upon the former decree against A. This decree became absolute by the failure to pay the sum found due for the redemption of the land in Vermont within the time named. In 1879, C. brought a bill in equity, as assignee of the second mortgage, to redeem the land in this Commonwealth from the first mortgage. Held, that C. was not concluded, as to the amount due on the mortgage, by the decree in Vermont; and that he might show that there was nothing due on the mortgage notes. Doo- ley V. Palter, 140 Mass 49 (1885). 12. Upon a bill in equity, by an assignee of a mortgage of land in this Commonwealth, to redeem the same from a prior mortgage cover- ing that land and also land in another State, of which latter land the defendant has be- come the owner by foreclosure and the expira- tion of the mortgagor's right to redeem, the value of such land is to be deducted from thei 695 MORTGAGE, II. 696 amount now due on the mortgage. Dooley v. Potter, 140 Mass.' 49 (1885). 13. In 1870, A., the owner of land, mort- gaged it to D. , the condition of the mortgage being the payment of a certain sum of money, on demand, with interest semiannually, and to secure and save the mortgagee harmless for all indorsements, liabilities, expenses, and ser- vices, on account of the mortgagor. In 1878, A. mortgaged a portion of the same land to H., by a deed which referred to the mortgage to D. In 1880, D. assigned the first mort- gage to S., the consideration expressed being $1. On a bill in equity, brought, in 1884, by H. against S., to redeem the land from the first mortgage, it appeared that, in 1867, the firm of which A. was a member executed an assignment for the benefit of their creditors to S. and others, as trustees, by the terms of which certain property (in which that subse- quently mortgaged by A. was not included) was to be sold, and the proceeds, after deduct- ing the disbursements, expenses, and charges of the trustees, were to be divided ratably among the creditors of the firm. S. was per- mitted to testify, against the objection of H., that, at the time of the execution of the first mortgage, it was to be held as security for the payment to S. for all the services he had rendered, or should thereafter render, to A. as trustee under the assignment of 1867, or as his attorney, and also for all advances and payments made or to be made, or liabilities incurred, by S. in behalf of A. ; that D. did not make any advances to A. , or incur any liability for him ; and that these facts were all known to H. when he took the second mort- gage. The judge found that this testimony was true, and ordered a decree to be entered that S. was entitled to hold the first mortgage as security for money paid out to the creditors of the firm of which A. was a member beyond what he had received from the assets of the firm, for money advanced to A., and for money paid one of his co-trustees for his ser- vices, with interest on these amounts; and that he was also entitled to hold it as security for money due him as trustee, or^as attorney, without interest, no demand having been made; but that S. was not entitled to be in- demnified against any claim of creditors of the firm, the judge having found that S. had fully executed the trust, although there was evidence that a creditor had recently made a demand upon him. Held, that the decree was right. Taft V. Stoddard, 142 Mass. 545 (1886). 14. On a bill in equity to redeem land from a mortgage, the defendant died pending the suit, and the executor of his will was made a party defendant. The bill was maintained only as a bill to recover a sum overpaid the original defendant by the mortgagor on the mortgage. Held, that execution should issue, as at common law, for the sum overpaid, with interest, against the goods or estate of the original defendant in the hands of the ex- ecutor ; and that another execution for costs should issue .against the goods, estate, and body of the executor. Tyler v. Brigham, 143 Mass. 410 (1887), II. Mortgage with Power of Sale. See AucTioif. 1. One who undertakes to execute a power of sale in a mortgage is bound to the obseiT- ance of good faith, and to a careful regard for the interests of the mortgagor ; and a mere literal compliance with the terms of the power is not enough. Thompson v. Heymood, 129 Mass. 401 (1880). 2. A mortgagor, who had conveyed hia equity of redemption, but who remained pier- sonally liable upon the mortgage note, was compelled to pay the balance remaining after the proceeds of a sale under the power had been applied thereon. Held, that he could maintain an action against the mortgagee for so misconducting the sale as to cause it to produce a less amount than might have been obtained. Fenton v. Torrey, 133 Mass. 138 (1882). 3. A second mortgagee cannot, under his mortgage, sell the entire estate free from in- cumbrances, and require purchasers to bid a sum suflScient to pay prior incumbrances. Such a sale is invalid. Donahue v. Chase, 130 Mass. 137 (1881). 4. After the incorporation of the south part of the town of M. as the town of E., the owner of land therein, upon which he lived, mortgaged it by a deed which described him as of M. and the land as situated in the south part of M., and which contained a power au- thorizing the mortgagee, upon breach of con- dition, to sell the land by public auction " in said M." Upon breach of condition, the mortgagee published a notice stating that the sale would take place on the premises, in the south part of M., and described the land by metes and bounds, gave the date of the mort- gage, and the book and page where recorded. Held, on a bill in equity to redeem, that the notice sufficiently described the land, and that the sale was made at a place authorized by the mortgage. Colcord v. Bettinson, 131 Mass. 233 (1831). 5. Under a single mortgage of three dis- tinct parcels of land, situated respectively in three different towns in the same county, con- taining a condition that, on default in the payment of the sum secured thereby, the mortgagee might "sell the granted premises, or such portion thereof as may remain sub- ject to this mortgage, in case of any partial relief therefrom, in said town, on the prem- ises," a sale by him of one of the parcels is valid, although the amount realized is less than the amount of the debt. Pryor v. Baker, 133 Mass. 459 (1882). 6. If a person, who purchases an estate at a sale under a power contained in a mortgage thereof, upon a seasonable tender of a deed of the estate, is unable, being financially worth- less, to comply with the terms of the sale, the mortgagee may again sell the estate under the power; and, having acted in good faith, and notified the surety on the mortgage note of all the proceedings attending the sales, may re- cover of him the balance due thereon. Fall 697 MORTGAGE, 11. 698 Rioer Savings Bank v. Sullioan, 131 Mass. 537 (1881). 7. Land was mortgaged to A. with power to sell. One half he held in his own right, the other half as administrator. Held, that his deed made in execution of the power con- veyed a good title, though he did not describe himself as administrator. Looh v. Kenney, 128 Mass. 284 (1880). 8. The purchaser of land sold under a power contained in a mortgage may maintain an ac- tion, on St. 1879, c. 237, against the mortga- gor, to recover possession of the land. Lowe V. Moore, 134 Mass. 259 (1883). The grantee of the purchaser cannot, how- ever, maintain such action. Warren v. James, 130 Mass. 540 (1881). 9. A purchaser oi land, under a power of sale contained in a mortgage, who, after he has taken possession of the land, pays a tax, assessed upon the land to a subsequent mort- gagee while the latter was in possession under his mortgage, cannot maintain an action against the subsequent mortgagee to recover the amount of the tax so paid. Swan v. Emer- son, 129 Mass. 289 (1880). 10. If land is sold, under a power contained in a mortgage, subject to outstanding tax titles, the mortgagee is not entitled to deduct from the proceeds of the sale money subse- quently paid by him to redeem such tax titles. SkUton V. Roberts, 129 Mass. 306 (1880). 11. A. sold land to B., subject to a mort- gage, which B. assumed and agreed to pay. Subsequently, at an attempted sale of the land by the mortgagee, A. bid a certain sum, at which it was struck off to him, but he failed to complete the purchase. He afterwards brought an action against B. for the amount of the mortgage debt, and obtained a verdict for the difference between that amount and the amount bid by him at the sale, but no judgment was entered thereon; and the land was afterwards sold and conveyed, under the mortgage, to C. for a certain sum. Held, that B. was not entitled, on a bill in equity against A., to have the amount paid by C. credited on the verdict. Cilley v. Fenton, 130 Mass. 323 (1881). 12. A bill in equity may be maintained by the receivers of a savings bank, the treasurer of which has, without authority, assigned a mortgage owned by the bank, to restrain the assignee, who was a depositor in the bank, from enforcing a power of sale in the mort- gage, and to compel him to surrender and can- cel the assignment, although, upon receiving the assignment, he released the debt of the bank to him as such depositor. Holden v. Phelps, 135 Mass. 61 (1883). 13. At the hearing of a bill in equity to redeem land from a mortgage, which has been sold under a power of sale contained in the mortgage, evidence of a general repute that the sale was to take place is not admissible on the issue whether due notice was given. Briggs v. Briggs, 135 Mass. 306 (1883). 14. The holder of two mortgages on a par- cel of land advertised it for sale, under the powers of sale in the mortgages, in a newspa- per which had no circulation in the town where the land was situated. The notices- of sale, although published for three successive weeks, were published, one only eleven days, and the other only twelve days, before the time fixed for the sale. The notices failed to attract bid- ders. There were only a few persons present at the sales, and they were all there in the interest of the holder of the mortgages, or upon a verbal notice of the sale from him. Notice was not given to the mortgagor, al- though he had notice of one of the sales, and he was not present. Only one or two bids were made besides that of the holder of the mortgages, who became the purchaser for much less than the value of the premises. Held, on a bill in equity to redeem the land from the mortgages, that the holder of the mortgages, in executing the powers of sale, failed to protect properly the interests of the mortgagor; and that the mortgagor was en- titled to a decree in his favor. Briggs v. Briggs, 135 Mass. 306 (1883). 15. A sale, under a power contained in a second mortgage of land, of the entire estate, as unencifmbered, is not a valid execution of the power, although at the sale the auction- eer states the existence of the first mortgage, and that it may remain at the option of the purchaser, and the deed delivered to the purchaser also states that he assumes and agrees to pay the first mortgage as part of the consideration; but the deed operates as an assignment of the second mortgage to the purchaser. Dearnaley v. Chase, 136 Mass. 288 (1884). 16. A mortgagee advertised to sell by pub- lic auction, under the power of sale in his mortgage, "all and singular the premises described in said mortgage, namely, a certain parcel of land," describing it by metes and bounds, and stating that "the above premises are to be sold subject to taxes." The terms of sale referred to the premises as "frame building and land mentioned and described in the printed advertisement." The memoran- dum signed by the purchaser stated that he was the puychaser "of the above described estate in the printed advertisement;" and the receipt given by the auctioneer to the pur- chaser, for the amount deposited in accordance with the terms of sale, acknowledged payment of that sum as part payment of the price " of house and land." i7eW, that it was the in- tention to sell the land, and not an equity of redemption ; and that the purchaser must have so understood. Callaghan v. O^Brien, 136 Mass. 378 (1884). 17. If a mortgagee, selling the mortgaged premises by public auction, is bound, but does not offer, to give a good title thereto, the purchaser at the sale is entitled, in an action for money had and received, to recover the amount of a deposit made in accordance with the terms of sale. Callaghan v. O'Brien, 136 Mass. 378 (1884) . 18. A savings bank, which holds two prom- issory notes made by the same person, the payment of one of which is secured by a mortgage of land, and of the other not, is not MORTGAGE, III. 700 entitled to apply the surplus proceeds of a sale of the land, under a power in the mort- gage, to the payment of the unsecured note, if the sale is made after the publication of a petition in insolvency against the maker of the notes, who is afterwards adjudged an in- solvent, although the first publication of the time and place of the sale under the mortgage is made, and read by the mortgagor, before the publication of the petition in insolvency. Tallman v. New Bedford Savings Bank, 138 Mass. 330 (1885). 19. If a mortgagee, in selling by auction the mortgaged premises under a power in the mortgage, acts in entire good faith, and fully conforms to the terms of the power, this court ■will not set aside the sale because there was only one bidder at the sale, and the premises were sold for less than their value. Learned V. Geer, 139 Mass. 31 (1885). 20. The fact that an auctioneer, who sells mortgaged premises under a power in the mortgage, was not licensed as such, will not invalidate the sale, if the mortgagee was ignorant of that fact, and the mortgagor was not injured by it. Learned'^. Geer, 139 Mass. 31 (1885). 21. A. mortgaged land to B., subject to a prior mortgage to a bank, and excepted from the covenant of warranty in the second mort- gage any claims under the prior mortgage. The bank foreclosed the first mortgage, and, under a power of sale contained therein, sold the land to C, who subsequently conveyed the land to the bank, by which it was again conveyed to A., and it afterwards, by inesne conveyances, was acquired by D. Held, that B. could not maintain a writ of entry against D. to recover the land. Huzzey v. Heffernan, 143 Mass. 232 (1887). III. Or A Railroad. See Eastern Railroad. 1. A railroad corporation mortgaged its property and franchise to trustees to secure the payment of certain bonds, by an in- strument which provided that, until default, the corporation should remain in possession ; that if the bonds were paid the conveyance should be void; and that, on default of the payment of the principal and interest on any bond, and on request of one half in amount of the holders of the bonds, the trustees should sell the property and apply the pro- ceeds to the payment of the bonds. Held, that, on default in the payment of interest, the trustees had the power to foreclose and take possession of the property, although not requested so to do by one half in amount of the bondholders, and that a bill in equity, brought by less than one sixth in amount of the bondholders against the trustees under said mortgage, to compel them to take pos- session of the property, — alleging that there had been a default in the payment of interest on the bonds, that the corporation had signi- fied a purpose not to pay interest unless the holders would take a less rate than the bonds called for, that the net income of the corpo- ration was sufficient to enable it to pay in- terest, that the corporation was applying the income to unsecured debts, and that thei-e was danger that, if this course continued, the property would be inadequate security for the payment of the mortgage, — could be main- tained ; and that it was no defence to such a bill that litigation might be necessary to as- certain what property the mortgage covered; or that a great burden and personal liability for injuries done and debts subsequently in- curred would thereby be imposed upon the trustees; and that other bondholders had a right to come in as plaintiffs. National In- surance Co. V. Salisbury, 130 Mass. 303 (1881). 2. By the terms of a mortgage made by a railroad corporation to trustees, to secure the payment of certain bonds with interest cou- pons attached, in case of default in payment of principal or interest, the trustees were to take possession of the property mortgaged for the purposes of foreclosure, and on the fore- closure becoming absolute, by such possession continuing a certain time, the bondholders might form themselves into a new corpora- tion, with a capital stock equal to the out- standing mortgage debt, at a meeting at which each bondholder was entitled to cast one vote for " every one thousand dollars principal sum of such bonded debt held by him. ' ' It was fur- ther provided that the new corporation should consist of the holders of the mortgage bonds, "at the rate of ten shares for every bond of one thousand dollars, as said bonds shall be surrendered to said new corporation to be ex- changed for certificates of stock at the rate aforesaid." While this mortgage was iu force, the corporation made a contract with A., by which the latter agreed that the in- terest maturing on a portion of the bonds should be paid at maturity; that an agree- ment to that effect should be indorsed on these bonds; and that any interest which A. should be obliged to pay should be and remain a valid lien on all the property secured by the mortgage. Held, that, upon foreclosure, the capital stock of the new corporation was to be determined by the principal sum of the mort- gage debt, without regard to the unpaid in- terest; and that a holder of bonds, issued under the contract between the corporation and A., and who had received payment of interest from A., was entitled to ten shares of stock for each bond, without redeeming the coupons paid; that A. was not entitled to any stock; and that a person to whom A. had sold in- terest coupons when overdue had no greater rights than A. Child v. New York §• New England Railroad, 129 Mass. 170 (1880). 3. In 1876 the property of a railroad com- pany was benefited by a public improvement,, made under authority of the St. of 1875, c. 200, which rendered any corporation bene- fited by the improvement liable to pay its pro- portion of the cost. In 1880 the company mortgaged its property to secure certain bonds ; and in 1884 the mortgage was foreclosed, and the property was bought by A., as trustee of the bondholders, he being authorized so to do 701 MORTGAGE, IV. 702 by the St. of 1883, c. 64, which also provided, that, immediately after the sale, a new corpo- ration should be organized, which should be subject to all the debts, duties, and liabilities of the former company. The St. of 1875 di- rected that a certain commission should deter- mine what persons and corporations were benefited by the improvement, with a right of appeal to a jury. The commission deter- mined that A., " the owner in fee of the prop- erty mentioned in the St. of 1883, c. 64," was benefited, and should pay a certain propor- tion of the cost of the work. On appeal to a jury, a verdict was returned that the real property formerly of the railroad company and now held by A. should pay a certain pro- portion; and that A. pay the same as trus- tee out of the property held by him in trust. Held, that A. had no ground of objection. County Commissioners, petitioners, 143 Mass. 424 (1887). IV. Of Personal Pkopeety. See Fixtures. 1. Parol evidence is admissible to show that the date stated in the in testimonium clause of a mortgage deed of personal prop- erty is not its true date, from which the fif- teen days, limited by St. 1874, c. Ill, for the recording thereof, begin to run. The word " date," in the statute, refers to the day of the deliverv of the deed. Shaughnessey v. Lewis, 130 Mass. 355 (1881) ; Orcutt v. Moore, 134 Mass. 48 (1883). 2. A power to a mortgagor, in a mortgage of a stock of goods, to sell the goods in the reg- ular course of trade, does not of itself avoid the mortgage. Fletcher v. Powers, 131 Mass. 333 (1881). 3. A mortgage of " groceries," contained in a "country and village grocery store," does not include pails, shovels, and the like, al- though such goods are usually kept in such a store. Fletcher v. Powers, 131 Mass. 333 (1881). 4. Upon the issue of the validity of a mort- gage to A. upon personal property of B., in whose possession it was attached by a cred- itor, — Held, that an instrument signed by A. and B. when the mortgage was made, and as part of the same transaction, reciting that A. held the mortgage in trust, was ad- missible. Rogers v. Abbott, 128 Mass. 102 (1880). 5. A mortgage of personal property, given to secure the mortgagee against liability as indorser for the mortgagor, is valid as against an attaching creditor of the mortgagor, al- though the liability of the mortgagee has not become absolute at the time of the attach- ment. Rogers v. Abbott, 128 Mass. 102 (1880). The sum "justly due" upon the mortgage, to be ascertained by the court, is that sum which will fully secure the mortgagee against all contingent future liabilities covered by the mortgage. Rogers v. Abbott, 128 Mass. 102 (1880). 6. A mortgage of a vessel contained the condition that it should be void on payment of a certain sum, and contained an agreement that the mortgagor would procure insurance on the vessel, and that, if he should fail to do so, the mortgagee might procure such insurance at the expense of the mortgagor. Insurance was procured, the mortgagee indors- ing the note of the mortgagor for the premium, which note the mortgagee paid after protest. Held, on a bill by a subsequent mortgagee to redeem the first mortgage, that the first mort- gagee was entitled to have repaid the amount paid for insurance, as well as the amount due on the sum for which the mortgage was given. Carrv. Hodge, 130 Mass. 55 (1880). 7. An attachment of mortgaged personal property in the possession of the mortgagor is invalid, if the mortgagee, summoned as trus- tee, under Gen. Sts. c. 123, § 67, is a resident of another State, and has no usual place of business in this Commonwealth. Allen v. Wright, 134 Mass. 347 (1883). 8. A creditor of a mortgagor of personal property caused it to be attached while in the possession of the mortgagor on a writ in which the mortgagee was summoned as trus- tee, under Gen. Sts. c. 123, § 67. The morf> gagee filed a general answer, denying that he had any goods or credits of the defendant in his possession, but not disclosing his mort- gage, and was thereupon discharged by the court, without objection by the creditor and without being further examined. The attach- ing ofiicer duly sold the goods on mesne pro- cess before the trustee was discharged, and, after said discharge, levied upon the proceeds, and paid them over to the creditor. Held, that the discharge of the trustee dissolved the attachment; and that the mortgagee might maintain an action against the ofiicer for the proceeds of the sale. Held, also, that it was no defence that the defendant had made a second attachment of the same property on a writ in favor of another creditor of the mort- gagor in an action in which the mortgagee was summoned as trustee, which action was pending at the time the present action was brought, and in which the trustee had not been charged or discharged. Goulding v. Hair, 133 Mass. 78 (1882). 9. A mortgagee of personal property may maintain an action for conversion, without proof of a demand and refusal, against an officer who sells the mortgaged property on an execution against the mortgagor, although the mortgagor was the purchaser at the sale, and then received and has since retained the pos- session of the property; the measure of dam- ages is the same as if the purchaser had been a stranger; and it is immaterial that after the seizure and before the sale the ofiicer attached the property on mesne process, for the sale dissolved that attachment. Leonard v. Hair, 133 Mass. 455 (1882). 10. A mortgagor of personal property, who is rightfully in possession at the time when it is wrongfully attached, may maintain an ac- tion against the attaching ofiicer, although the attachment constitutes a breach of a con- 703 MORTGAGE, IV. 704 dition of the mortgage. Copp v. Williams, 135 Mass. 401 (1883). 11. At the trial of an action against an officer for attaching the plaintiff's goods, the evidence was that the defendant attached the " stock of goods " in the plaintiff's store ; and that a certain person had a mortgage upon " said stock of goods." Held, that the de- fendant was not entitled to a ruling that there was no evidence that all the stock of goods in the store at the time of the attachment was included in the mortgage, and that an attach- ment of goods not included in the mortgage would be lawful. Allen v. Wright, 138 Mass. 193 (188.3). 12. The amendment of a writ against " Wil- liam Robinson," by inserting the words " otherwise called William J. Robinson," does not vacate an attachment of personal property, so as to give a mortgage of the property to a third person, made after the attachment and before the amendment, pri- ority over the attachment, of which the mort- gagee was ignorant. Diellrich v. Wolffsohn, 136 Mass. 3:35 (1884). 13. If a mortgage of personal property is fraudulent and void as to creditors of the mortgagor, a judgment creditor may levy an execution upon the mortgaged property, as if the mortgage did not exist, although the property has not been previously attached. Sherman v. Davis, 137 Mass. 132 (1884). 14. If a mortgagor in possession of personal property removes and stores it with a third person, who has no actual notice of the mort- gage, which is recorded, the mortgagee, who afterwards is informed of the removal and storing, and expresses no disapproval of the same, is not liable to such person for the charges for storage, although the storage is necessary for the preservation of the property, but may maintain an action against him for its conversion. Stortns v. Smith, 137 Mass. 201 (1884). 15. Under the Pub. Sts. c. 192, § 1, an attachment of mortgaged personal property which is not delivered to the mortgagee, made after delivery of the mortgage but be- fore it is recorded, takes precedence of the mortgage, although the latter is recorded within fifteen days after its date. Drew v. Streeter, 137 Mass. 460 (1884). 16. A demand in writing, under the Pub. Sts. c. 161, § 75, by a mortgagee of personal property attached on a writ against the mort- gagor, in which, although he refers to the mortgage by its date and by the book and page of its record, he states that it covers cer- tain articles specified, but omits to name one article covered by the mortgage and included in the attachment, does not defeat the attach- ment as to such article. Woodward v. Ham, 140 Mass. 154 (1885). 17. Mortgaged personal property may be sold on an execution against the mortgagor, if there was a valid attachment subsisting on the property when it was taken by the officer on the execution; and it is immaterial that the attaching creditor paid the amount due upon the mortgage after the officer took the property on the execution, if it was paid within the time prescribed, under the Pub. Sts. c. 161, § 80, by the court passing upon the validity of the mortgage. Loomis v. Lewis, 140 Mass 208 (1885). 18. In November, 1873, A. agreed in writ- ing to give to B., for money to be lent him, a mortgage upon certain personal property to secure such loan. In May, 1874, A. delivered to B. a mortgage, in which the date named in the in testimonium clause was November, 1874. The certificate of the clerk of the city in which the property was situated stated that the mort- gage was recorded in May, 1874; and, in re- cording the same, the date in the in testimonium clause was made to read November, 1873. In February, 1874, A. gave another mortgage of the same property to C, which was recorded in September, 1874. Held, that the mortgage to B. was entitled to priority over that to C. Jacobs V. Denison, 141 Mass. 117 (1886). 19. A mortgage of all the personal property of a manufacturing corporation, except its book accounts, given by the president and treasurer of the corporation to secure the pay- ment of a pre-existing debt, without previous authority or subsequent ratification by, or the knowledge and acquiescence of, the directors of the corporation, is invalid, although the president and treasurer was also the general manager of the corporation, and owned all but two shares of its capital stock. England v. Dearborn, 141 Mass. 590 (1886). 20. An attaching creditor of personal prop- erty, who, after a demand by a mortgagee of the amount due him upon his mortgage, which includes said property and other articles ex- empt by law from attachment, tenders the amount due the mortgagee, cannot maintain a bill in equity to compel the mortgagee to as- sign the mortgage to him. Cochrane v. Rich, 142 Mass. 15 (1886). 21. In an action of replevin by a mortgagee against an officer, who attached the property on a writ against the moi-tgagor, the issue was whether the mortgaged property had been de- livered to and retained by the mortgagee be- fore the attachment. The judge, who tried the case without a jury, ordered that judg- ment for a return of the replevied property be entered for the defendant, and allowed a bill of exceptions, which stated that the mort- gagor was a sub-contractor under B., and used the replevied property in his business; that after a breach of the conditions of the mort- gage, and before the attachment, C, as the agent of B., and as the agent of the plaintiff to take possession of the property for the breach of said conditions, with the assent of the mortgagor assumed control of the busi- ness, the mortgagor remaining to assist him, and the property continued to be used as be- fore, but under C.'s control. The exceptions further stated, that the judge found that, when the property was attached, the mortgagor was in actual possession and use of the prop- erty subject to the control of C. Held, that, in the absence of a finding that the property was "delivered to and retained by " the mort- gagee, as required by the Gen. Ste. c 151, § 1, 705 NEGLIGENCE. 706 the court could not say, as matter of law, that the judgment was erroneous. Citizens^ Na- tional Bank v. Oldham, 142 Mass. 379 (1886). 22. In an action of replevin against an offi- cer, who had attached the chattels replevied as the property of B., it appeared that B. had mortgaged them to A., who subsequently, but before the attachment, took possession of them, with the consent of the mortgagor, but without foreclosure, and that the mort- gagor made an oral release or gift to him of the equity of redemption. Held, that the judge rightly refused to instruct the jury, as requested by the defendant, that a mortgagor of chattels has an indefeasible right to re- deem as between himself and the mortgagee, unless he has parted with such right for some new consideration, or unless the mortgage has been duly foreclosed. Stone v. Jenks, 142 Mass. 519 (1886). 23. The interest of a mortgagee in personal property mortgaged to him is not subject to attachment; and such interest cannot be made attachable, by joining the mortgagor and mortgagee as defendants in an action upon a joint debt. Murphy v. Galloupe, 143 Mass. 123 (1886). 24. An attachment of mortgaged personal property in the possession of the mortgagor, with his consent and by his procurement, al- though the attachment is void, and the mortga- gor has no attachable interest in the property, is a breach of a condition in the mortgage that the mortgagor shall not sufPer the property to be attached on mesne process. Crocker v. Atwood, 144 Mass. 588 (1887). 25. If mortgaged personal property in the possession of the mortgagor is attached, with his consent and by his procurement, and the person causing the attachment holds the prop- erty as keeper under the attachment, in denial of the mortgagee's right, and the attachment is invalid, there is evidence of the mortga- gee's right of possession of the property, and of the conversion of it by the person causing the attachment. Crocker v. Atwood, 144 Mass. 588 (1887). MOTION TO QUASH. See Indictment. MUNICIPAL CORPORATION. See Town. MUNICIPAL COURT. See Police Courts. MURDER. See Homicide. N. NAME. See Action; Attachment; Misnomer. At the trial of an indictment for polygamy, it appeared that the first name of the defend- ant's first wife was spelled " Celeste " in the indictment. The first wife testified that her first name was "Celestia." She pronounced " Celeste " in two syllables, with the accent on the last. There was no other evidence as to the pronunciation and sound of " Celeste." Held, that the question of misnomer was rightly submitted to the jury. Commonwealth V. Warren, 143 Mass. 568 (1887). NATIONAL BANK. See Bank ; Tax. NAVIGABLE WATERS. See Grant. SUPPLEMENT. — 23 NECESSARIES. See Infant; Trustee Process. NEGLIGENCE. I. In General. H. Contributort Negligence and Due Care op Plaintiff. III. Injuries from Escape of Gas. IV". Injuries from Negligent Driving AND Collision of Vehicles. V. Negligence of Railroads. As to liability of master for negligence of servant, see Master and Servant. As to negligence of carriers, see Carri- er; indictment therefor, see Carrier, IX.; Railroad. As to right of action against owner or oc- cupier of land irrespective of negligence, see Nuisance. As to right of action against landlord by TOT NEGLIGENCE, T. T08 one injured by a defect in his building, see Landlord and Tenant. For questions of negligence for defects in highways, see Way. Of efiect of negligence in preventing a re- covery upon an accident insurance policy, see Insurance, IV. See also Action, I. (a), pi. 3, 4; Lord's Day, pi. 3; Ship; Telegraph. I. In General. 1. An action cannot be maintained against a railroad corporation by the personal repre- sentative of one alleged to have been killed by negligence, it not appearing that the death was not instantaneous. Corcoran v. Boston §■ Albany Railroad, 133 Mass. 507 (1882). 2. If a religious society gives notice of a meeting to be held at its house of worship, and invites the members of other societies to attend, a member of a church so invited, while on the land of the society, is not a mere licensee, and may maintain an action against the society for a personal injury sustained while in the exercise of due care, from the dangerous condition of the defendant's prem- ises. Davis V. Central Congregational Society, 129 Mass. 367 (1880). 3. The proprietor of a hall to ■which the public is invited is bound to use ordinary care and diligence to put and keep the hall in a reasonably safe condition for persons at- tending in pursuance of such invitation ; and if he neglects his duty in this respect, so that the hall is in fact unsafe, his knowledge or ignorance of the defect is immaterial. Currier V. Boston Music Hall, 135 Mass. 414 (1883). 4. The St. of 1872, o. 79, authorized a city to take certain water, and land for the con- struction of such works as might be necessary therefor, and also " for laying and maintain- ing aqueducts or pipes." 'The act further provided a remedy for damages sustained by any person by the taking of any land or water, or by the construction of waterworks or the lay- ing of pipes. Held, that this statute did not prevent a person whose house was injured by the negligence of the servants of the city, in laying a pipe from the main pipe in the street to the house, from maintaining an action of tort for such injury. Perkins v. Lawrence, 136 Mass. 305 (1884). 5. No action can be maintained against the Trustees of the City Hospital of the city of Boston, incorporated by the St. of 1880, c. 174, by a person who has entered the hospi- tal building on business, for personal injuries occasioned by reason of the unsafe condition of the covering of stairs over which he is pass- ing in leaving the building, although such condition is caused by the negligence of the superintendent of the hospital. Benton v. Bus- ton City Hospital, 140 Mass. 13 (1885). 6. In an action for personal injuries occa- sioned to the plaintiff by the failing of an hydraulic elevator in a building owned by the defendant, while the plaintiff was riding therein, the defendant offered evidence tend- ing to show that, immediately after the acci- dent, the builder of the elevator examined its machinery, valves, and connections, and found them in perfect order, and nothing broken or injured; and that he had examined the shut- off valve in the cellar from time to time, and had always found it in perfect order. The defendant called certain experts, who testi- fied, in substance, that all appliances for safety in general use were connected with this elevator, and were in good order; that they had examined its machinery and connections, and found everything in good working order; that there were no appliances known to them to prevent air from getting into cylinders when the street pipe was opened, except such as were attached to this machine; that the clos- ing of the shut-off valve in the cellar would have no effect on the running of the elevator, as the pipe between it and the cylinders would remain full of water all the time, whether closed or open, owing to the fact that the cellar pipe was lower than the street main ; and that they did not consider that there was any danger to hydraulic elevators from opening the street mains. The defendant, among other things, asked the judge to instruct the jury that, "if the elevator had all known safety appliances, and the defendant had no knowledge or reason- able cause to believe that there was any dan- ger from air coming from the street pipe, and an accident happened therefrom, he would not be liable, even if he had knowledge that the water was being shut off." The judge re- fused to give this instruction. Held, that the defendant had , good ground of exception. Shattuck V. Rand, 142 Mass. 83 (1886). 6. At the trial of an action for personal injuries sustained by a boy eight years of age, there was evidence that the defendant was erecting a building in a city under a permit of the inspector of buildings, which permitted the defendant to occupy the whole of the side- walk, under an ordinance of the city which authorized the inspector to grant such a per- mit, and which provided that the space allot- ted should be enclosed by a sufficient fence, and that the person holding the permit should provide a safe and convenient passage around or over the space allotted for public travel, and should be responsible for any injury sus- tained in consequence of any neglect so to do; that the defendant did not enclose the side- walk, or provide a way around or over it; that the defendant had in the building, in close proximity to the sidewalk, a wheel and rope used for hoisting purposes; that, on the day of the accident, the boy, who had been warned from the premises a short time before the accident, while passing along the sidewalk stopped to speak to another boy who was wrongfully in the cellar of the building; and that, while so stopping, he took hold of the rope for about two minutes, and, the rope being started, his hand was drawn into the wheel and injured. Held, that it could not be ruled, as matter "of law, that the action could not be maintained. Moynihan v. Whid- den, 143 Mass. 287 (1887). 7. In an action for the value of a heifer, delivered to the defendant to be pastured, and 709 NEGLIGENCE, II. 710 afterwards found dead in his pasture, the bur- den of proof is upon the plaintifE to show that the heifer's death was caused by the negli- gence of the defendant. Wood v. Remick, 143 Mass. 453 (1887). 8. In an action for personal injuries sus- tained by the plaintiff by falling into a coal- hole owned by the defendant, on the issue whether the plaintiff's evidence showed that the cover of the coal-hole was insufficiently guarded, a witness for the plaintiff testified that he saw the cover immediately after the accident and there was no weight attached to the under side of it; and that, on the night before the accident, he stepped on the cover, and it came off. On cross-examination, he testified that, a month before, he saw, while at a certain place in the cellar, a weight attached to the cover. There was other evidence for the plaintiff that the cover could not be seen from this place in the cellar. Held, that the issue should have been submitted to the jury. Delory v. Canny, 144 Mass. 445 (1887). II. Contributory Negligence and Due Care of Plaintiff. See Master and Servant, I. (e). 1. In an action against a religious society for a personal injury sustained by falling over a wall on the defendant's premises, there was evidence that there was a circular path, eigh- teen feet wide, leading from the defendant's meeting-house to the street; that one side of this path, as it approached the street, was bounded by a wall, which separated the de- fendant's land from a side street, and was two and a half feet high on the street; that the plaintiff, a woman, while going from the meeting-house, after dark, to the street, and walking in the manner in which she usually walked, struck her foot against the wall, at a point where it was about eight inches above the path, and fell over the wall into the side street, and was injured; and that the path was so insufficiently lighted that she did not see the wall. Held, that whether the plaintiff was in the exercise of due care, and whether the way was reasonably safe, were questions of fact for the jury. Davis v. Central Congre- gational Society, 129 Mass. 367 (1880). 2. The fact that a pei-son noticed, on enter- ing a building, that there was ice and snow on a plank sidewalk in front of the door, is not conclusive evidence, in an action by him against the owner of the building for an in- jury sustained on his way out of the building in consequence of such snow and ice, that he was not in the exercise of due care in at- tempting to pass over the sidewalk. Dewire V. BaUey, 131 Mass. 169 (1881). 3. A horse escaped, through the negligence of the person in charge of him, ran six hun- dred feet, then entered upon a railroad track at a point where there was no barrier, — • it being contended that there should have been one, — then ran on the track five hundred feet farther, and sustained an injury from falling between the ties of a bridge. Held, in a suit by the owner of the horse against the railroad manager, that the court could not say, as matter of law, that the negligence of the person in charge of the horse was too re- mote to be considered; that the question was, with the other facts, for the jury. Amstein v. Gardner, 134 Mass. 4 (1883). 4. In an action against a railroad corpora- tion for injury to goods, in which the evi- dence was conflicting on the question of the defendant's negligence, the judge refused to rule that certain facts, if proved, would con- stitute negligence, and submitted the question of negligence to the jury. Held, that the plain- tiff had no ground of exception. Aigen v. Bos- ton Sf Maine Railroad, 132 Mass. 423 (1882). 5. At the trial of an action against a rail- road corporation for personal injuries occa- sioned to the plaintiff's intestate, by being struck by an engine while crossing the rail- road on foot in the daytime, it appeared that the track was straight for five hundred feet from the crossing, and then curved so slightly as to permit a train to be seen for a much greater distance ; that it was sixteen feet from certain posts set in a fence, through which the in- testate passed in going upon the railroad, to the nearest rail upon which the engine came, and about five feet between the rails; the only witness who saw the intestate at the time of the accident testified that he was moving quickly. Held, that the jury should have been instructed that the evidence would not warrant a finding that he was in the exercise of due care. Tully v. Fitchburg Railroad, 134 Mass. 499 (1883). 6. At a railroad station, the tracks ran easterly and westerly. On the south side of the tracks were the station-house, and a plat- form over five hundred feet in length, which ran, on the east, to a highway crossing the rail- road at grade. On the north side of the tracks was a platform five hundred feet in length, which ran, on the west, to a passageway lead- ing from a highway parallel with the railroad on its northerly side. Between the two plat- forms were two strips of planking, each ten feet wide, and the rest of the space was left unplanked. The railroad tracks were straight from the passageway for the distance of a quarter of a mile in an easterly direction. Passengers going eastward could only enter the cars from the south platform. A woman, who lived on the north side of the railroad, intending to take a train going eastward, went, in the daytime, down the passageway to the northerly platform, and found a freight train passing, which was going westward. She waited until it had passed, looked east- ward to see if any other train was coming, and saw none. Her attention was then at- tracted to the incoming of the train on which she was going, and knowing that, by the rules of the road, while one train was at a station another was not allowed to pass, and that one train was not allowed to follow another within five minutes, she, without looking again to see if a train was coming, stepped on the north track, attempted to cross at a place where there was no planking, and was struck by a 711 NEGLIGENCE, II. 712 train coming from the east, a few hundred feet behind the other freight train. Held, in an action against the raih'oad corporation for the injuries sustained, that there was no evi- dence to warrant a filiding that the plaintiff was in the exercise of due care, although, for nearly twenty years, persons coming from the north side of the railroad had been accustomed to cross to the south platform in the place where the plaintiff was attempting to cross. Wheelwright v. Boston Sf Albany Railroad, 135 Mass. 225 (1883). 7. A passenger, who, on the approach of a steam ferry-boat to the wharf , leaves the cabin and stands on the deck between the cabin and the end of the boat, cannot be said, as matter of law, not to be in the exercise of due care. Peverly v. Boston, 136 Mass. 3C6 (1884). 8. A passenger on a ferryrboat, upon the boat approaching the wharf, left the cabin, and, with others, stood in the passageway leading fi-om the cabin to a gate near the end of the boat. He was in the front rank of those thus standing, and was over two feet distant from the gate. The lock at the top of the gate had been removed, and the catch on the bottom was out of working order. The gate was lifted, apparently by some unau- thorized person, no servant of the corpora- tion owning the boat being there to operate the gate, and, by a sudden movement of the crowd, the passenger was pressed against the gate, and injured. Held, in an action by him against the corporation, that the question whether he was in the exercise of due care was for the jury. Peverly v. Boston, 186 Mass. 366 (1884). 9. If a person in the employ of a telegraph company, which has not obtained the writing from the mayor and aldermen requii-ed by the Gen. Sts. c. 64, § 3, specifying the places where the company may run its wires upon a highway of a city, while engaged in climbing a telegraph pole on such highway, with his back to the street, and carrying a telegraph wire attached to his person, is injured by a street railway car running against the wire, which extends across the highway, and pull- ing him from the pole, he is doing an illegal act, which contributes to cause his injury, and precludes his maintaining an action therefor, unless the driver of the car recklessly and wantonly drives against the wire ; and § 5263 of the U. S. Rev. Sts. has no application to the case. Banks v. Highland Street Railway, 136 Mass.^485 (1884). 10. If a person, who lawfully enters in the dark upon premises with which he is unfamil- iar, and, upon coming to an obstacle fifteen inches high, consisting of a curbing of stone and plank around a well in an open space, steps upon it, and then forward, and, through an opening, into the well, he cannot be said, as matter of law, not to be in the exercise of due care. Learoyd v. Godfrey, 138 Mass. 315 (1885). 11. In an action for personal injuries oc- casioned to the plaintiff, by falling upon ice accumulated on an uncovered piazza and steps of a building owned by the defendant, and occupied by the plaintiff and by other tenants, the plaintiff testified that she knew ice had accumulated there, and that it had been there several days before the accident; that there was a ridge of ice on the piazza and also on the steps; that, during the night before the accident, it had snowed and covered the ice; that, when she heard a bell rung by a yeast- man, she took a cup and a broom, and started out of the back door of her tenement for the street; that, as she went along the piazza, she pushed the snow in front of her with one hand upon the broom and the other holding the cup ; that she looked towards the yeast-man ; that she "had not presence of mind to be thinking about ice," but "was thinkingabout yeast; " and that she struck the ridge of ice and fell. Held, that the question whether the plaintiff was in the exercise of due care was for the jury. Watkins v. Ooodall, 138 Mass. 533 (1885). 12. It IS no defence to an action of tort against a railroad corporation, under the Pub. Sts. c. 112, § 212, for causing the death of a passenger, that the passenger was not in the exercise of due care. Merrill v. Eastern Rail- road, 139 Mass. 252 (1885). 13. In an action against a county for per- sonal injuries occasioned to the plaintiff by stepping into a hole in the flooring of a bridge, which was a county way, there was evidence that the hole, which was a large and dangerous one, had existed for ten years ; and that the of- ficers of the county were very frequently upon the bridge. A witness testified that he saw the plaintiff, who died before the trial, walking on the bridge carefully, apparently; and that, when he next saw him, his left foot and leg were in the hole. It appeared that the plain- tiff had previous knowledge of the defect. Held, that the questions of want of due dili- gence on the part of the county, and of due care on the part of the plaintiff, were properly submitted to the jury. Lyman v. Hampshire, 140 Mass. 311 (1885). 14. In an action against a railroad corporar tion for personal injuries, the evidence tended to show that the plaintiff was struck by a train on the defendant's railroad, while he was standing upon and near the edge of the platform at a station on the railroad, with his back to the appi'oaching train, and looking at a train which he was intending to take by crossing the tracks, and for which he had bought a ticket ; and that a broken step on the side of a car of the train projected over the platform. The jury found that the de- fendant negligently omitted to ring the bell on the engine, and that this omission caused the accident. Held, that the question whether the plaintiff was using due care was properly submitted to the jury. Sonier v. Boston §■ Albany Railroad, 141 Mass. 10 (1886). 15. In an action against the keeper of a shop for personal injuries occasioned to the plaintiff, a blind man, while walking, unat- tended, along a street in a city, by falling into a hole in the sidewalk of the street in front of the shop, left by removing a trap door for the purpose of raising cases of goods from the 713 NEGLIGENCE, II. 714 basement of the shop, there was evidence that the plaintiff was forty-nine years old, used to going about alone, and well acquainted with the particular locality, and that the defendant placed no barrier about the hole, and no per- son to warn passers by of the danger, although one side of the hole was guarded by the build- ing, and on each of the other three sides was a man engaged in hoisting goods from the basement; that the plaintiff, while walking along, came against one of the men, did not know what the obstacle was, and did not stop to examine it, but, supposing there would be a safe passage between the obstacle and the building, without asking any question, turned to the right, and walked into the hole. Held, that the questions of due care on the part of the plaintiff, and of negligence on the part of the defendant, were for the jury. Smitk v. Wildes, 143 Mass. 556 (1887). 16. In an action against a palace car com- pany for the value of a satchel and its contents, alleged to have been lost by the neg- ligence of the defendant's servants, it appeared that the plaintiff bought of a certain railroad corporation a ticket which entitled him to ride from one station to another in a day parlor car owned by the defendant, and in use by said railroad corporation under a contract with the defendant; and that the plaintiff had with him a small satchel, which he did not deliver to the defendant's agents, but which he kept in his personal control. There was evidence tending to show that the satchel was stolen while the train in which he was riding was stopping at an intermediate station for refreshments. When the train stopped at that station, the plaintiff left the car for ten minutes, leaving his satchel upon the sill of one of the car windows, which could be reached from the outside through an adjoin- ing open window. Held, that the plaintiff was guilty of negligence which contributed to his loss ; and that the action could not be maintained. Whitney v. Pullman's Palace Car Co., 143 Mass. 243 (1887). Contributory Negligence of Children or their ^ Parents. 17. In an action against a railroad corpora- tion for personal injuries occasioned to the plaintiff, a boy nine years old, by being struck by a train of cars run by the defendant along a highway, evidence that, prior to the acci- dent, the plaintiff had been seen on the tracks, and had been warned not to go there, is ad- missible upon the question whether he was using due care. FUzpatrick v. Fitchhurg Rail- road, 128 Mass. 13 (1879). 18. A boy about nine years old had in his charge, in a street of a city, in the daytime, his brother, who was nearly five years of age. On approaching a place where the way crossed a railroad at grade, the younger boy, who was a short distance in advance, turned to see if his brother was coming, and, while walking backwards over the railroad, caught his foot between one of the rails and the planking which was laid between the rails, and, before he could extricate his foot, he was run over by a locomotive engine. At the time the boys began to cross the railroad, there were no in- dications of the approach of the engine. Held, in an action for the injuries sustained, against the corporation owning the railroad, that the question whether the boys and their parents were in the exercise of due care was one of fact for the jui-y. O'Connor v. Boston §• Low- ell Railroad, 135 Mass. 352 (1883). 19. In an action for personal injuries sus- tained by a child eighteen months old, by be- ing run over by a locomotive engine, there was evidence that the plaintiff lived with his mother in a house near a railroad track, with no fence between the house and track ; that the mother and child were in a room, the door of which was open and faced the track ; that the mother placed the child in a chair, gave it something to eat, and, with her back to the child, began to wash the floor of the room ; that about two minutes afterwards, hearing a noise, she went to the door and saw the child by the track, he having attempted to cross it when struck by the locomotive engine. Held, that whether the mother exercised due care in looking after the child was a question of fact for the jury. McGeary v. Eastern Railroad, 135 Mass. 363 (1883). 20. A child, nineteen months old, strayed from its home into an adjoining highway, and was injured by being run over. Held, in an action for such injury, that the fact that the child was in the highway unattended was prima facie, but not conclusive, evidence of contributory negligence on the part of the person in whose charge it was. Gibbons v. Williams, 135 Mass. 333 (1883). 21. A boy eight years and nine months old, who, while engaged in the sport of riding up- on the runners of sleighs in the public streets, with the consent of his parents, suddenly leaves a sleigh on which he is riding, while it is in motion, in a frequented thoroughfare, without looking behind him, and within thirty feet of a horse and sleigh following it, by which he is struck and injured, is guilty of such negligence as to preclude him from maintaining an action for the injury. Messenger v. Dennie, 137 Mass. 197 (18e:4). 22. A child six years and seven months old, who, while crossing a street in a city, and see- ing a horse and wagon approaching, stops, with her back to the horse, to pick up a bundle which she has dropped, and is injured by be- ing run over, cannot be said, as matter of law, to be guilty of such contributory negligence as will preclude her from maintaining an ac- tion for her injury, if the evidence is conflict- ing as to the speed at which the horse was being driven, and as to the distance of the horse at the time the child stopped to pick up her bundle ; and the question whether she was in the exercise of due care is for the jury. Mattey v. Whittier Machine Co., 140 Mass. 337 (1885). 23. A boy eight years and nine months old, who was allowed by his parents to ride upon the runners of sleighs, got upon the runner of a sleigh, with the consent of its driver, in a public street. After riding in this way some 715 NEGLIGENCE, III., IV. 716 distance, he told the driver that he would get off; and the driver slackened the speed of his horse nearly to a walk. The boy looked round and saw that there was another sleigh behind the one he was on, in the same track, about thirty feet away, and going in the same direc- tion. The boy then stepped off the runner, and out of the track of the other sleigh, and reached the middle of the street, and was knocked down and injured by the horse draw- ing the other sleigh, which had turned out of the track to pass the sleigh on which the boy had been riding, while the driver was watch- ing some boys coasting in a field. Held, that the boy was guilty of such contributory neg- ligence as to prelude him from maintaining au action for the injui-y. Messenger v. Den- nie, 141 Mass. 335 (1886). 24. The parents of a boy about four years old permitted him to walk in the streets of a city in the daytime under the care of his sis- ter, who was nearly eleven years old. In an action against a street railway corporation for an injury sustained by the boy while so walk- ing, there was evidence that the girl was ac- customed to take her brother to walk, and that she was a girl of ordinary intelligence, and bright about doing errands. Held, that it could not be ruled, as matter of law, that the parents of the boy were negligent in per- mitting him to go upon the streets with his sister, or that she had not sufficient intelli- gence and discretion to be intrusted with his care. Collins v. South Boston Railroad, 142 Mass. 301 (1886). 25. In an action against a street railway corporation for an injury occasioned, in the daytime, to a boy about four years old, the plaintiff's evidence tended to show that he was in the care of his sister, who was about eleven years old and of ordinary intelligence; that, after starting to cross a street on the cross walk, the sister, who had hold of her brother's left hand, saw a car approaching, and kept on until they were near the track on which the car was approaching, and nearly abreast of the horses ; that then she, becoming frightened, pulled away from her brother, or he from her, and left him, going either in front of the horses or in the rear of the car, and he, after being left, ran in front of the horses, and was knocked down either by the feet of the horse which ■was the farther from him when he started to run, or by the side of the dasher of the car, and was drawn under the car and injured. The rate of speed of the car, its distance when the sister first saw it, and the persons and ob- jects in the street which might have influ- enced her conduct, were differently described by different witnesses. Held, that it could not be ruled, as matter of law, that the sister was not exercising the care over her brother which might reasonably be expected of a child of her age. Collins v. South Boston Railroad, 142 Mass. 301 (1886). III. Injuries pkom Escape or Gas. In an action against a gas company for in- juries received by the plaintiff, from the inhalation of gas, which escaped from the de- fendant's pipes, it appeared that the plaintiff, who was too young to testify, occupied the same room and bed with his mother; that the door of the room in which they slept was broken open in the morning, and the plain- tiff was foimd insensible by the body of his mother, whose death had been caused by the escaping gas, which came from a crack in the pipe laid by the defendant through the street on which the plaintiff lived ; that there were no gas fixtures in the room ; and there was no evidence that the plaintiff or his mother had notice of escaping gas, or were conscious of its presence in the room in time to leave or to open doors or windows. There was also evi- dence that, on the day before the accident, there was no smell of gas in the street ; and that the mother was a sober and prudent woman. Held, that there was evidence suffi- cient to support a verdict for the plaintiff; and that a ruling " that there was evidence enough of want of proper care on the part of the defendant to make it responsible, on the ground that it was bound to conduct its gas in a proper manner, and that the fact that the gas escaped was prima facie evidence of some neglect on the part of the defendant," was not open to exception. Smith v. Boston Gas Light Co., 129 Mass. 318 (1880). IV. Injuries from Negligent Driving AND Collision of Vehicles. 1. In an action for personal injuries occa- sioned to a woman sixty-seven years old, by being knocked down by a horse and wagon, while crossing a street on some flagstones at a point where the street forms a junction with two other streets, all much travelled, in the compact part of a city, the fact that, before attempting to cross and while crossing, she did not look up or down the street but straight ahead, is not conclusive evidence of a want of due care on her part; but the question is rightly submitted to the jury. Shapleigh v. Wyman, 134 Mass. 118 (1883). 2. In an action for personal injuries occa- sioned to a boy under seven years of age, by being run over by the defendant's wagon, while sitting on the sidewalk, the evidence was conflicting as to the character and con- dition of the sidewalk, and whether it was clearly separated from the rest of the street. The judge instructed the jury fully as to the rights of travellers with wagons and travellers on foot in public highways ; and that the plain- tiff could not recover, unless, at the time of the injury, he was in that part of the high- way where it was then proper for him to be, and was in the exercise of due care. The defendant then asked the judge to rule that, if the plaintiff was sitting on the sidewalk, and the sidewalk was a part of the street over which both wagons and foot-passengers passed, he was negligent, and could not recover. The judge declined so to rule ; and ruled as foUows: " If the boy was sitting on a sidewalk which was clearly defined and distinguishable from 717 NEGLIGENCE, V. 718 the travelled way, which was sufficient for persons passing with teams, he had a right to be there, that was a proper use of the sidewalk, and the defendant would have no right to drive his horse on the sidewalk against him." Held, that the defendant had no ground of exception. Murley v. Roche, 130 Mass. 330 (1881). 3. A. boy, four years old, accompanied by his two sisters, one five years old and the other eleven years old, left his home for the purpose of going to a shop to do an errand. The elder sister went into the shop, which was on a public street, leaving the boy and the younger sister on the sidewalk of the street. While in the shop, she was informed by her younger sister that the boy had been run over and injured by a horse and buggy; and, on coming out, she found him sitting on the curbstone of the sidewalk on the opposite side of the street, in an injured condition. The driver of the horse and buggy admitted that he ran over the boy. Held, in an action for the injury, that there was no evidence of due care by the plaintiff, or of negligence by the defendant. Stock v. Wood, 136 Mass. 353 (1884). 4. In an action for personal injuries occa- sioned by the plaintiff's being thrown from his wagon by a collision with the defendants' wagon, driven by one of the defendants, who is alleged to have been careless, because his wagon was so overloaded, while going down a hill, that his horse could not control it, and because he was driving at an unreasonable speed, evidence of acts of negligence of the defendants or their driver at other times, in overloading their wagon, or in driving at an unreasonable rate of speed, in the same place, is not admissible. Whitney v. Gross, 140 Mass. 232 (1885). V. Negligence of Railroads. Liability for Accidents to Passengers. 1. A passenger, who receives an injury by falling from the front platform of a street railway car while in motion, upon which he occupies a sitting position, • against the rules of the corporation and the warning of the driver of the car, and without any reasonable excuse therefor, is not in the exercise of such care as will entitle him to maintain an action against the corporation. Wills v. Lynn §• Boston Railroad, 129 Mass. 351 (1880). 2. It is a reasonable regulation of a street railway corporation, which it has the right to make, that passengers shaU not be on the front platform of a car. Wills v. Lynn §• Boston Railroad, 129 Mass. 351 (1880). 3. A passenger on the train approaching the station to which he was going, which was a flag station, and at which the conductor had promised him to stop the train, left his seat and tried to make his way to the door of the car, in order to leave the train at the station. It was a day of gi-eat public excitement, and the train, which was a very long one, was overloaded with people, who filled all the seats, passageways, and platforms, and even occupied the roofs of the cars. The train did not come to a full stop on reaching the station, and the passenger, in making his way through the crowd, reached the platform, and, in the sur- ging of the crowd, fell, or was pushed out on the platform and down the steps of the car; and, after holding on with one hand for a short distance, he finally fell to the ground and was injured. Held, in an action by him against the railroad corporation, that whether the plaintiff was in the exercise of due care, and whether the defendant negligently and improperly managed its train so that the plain- tiff's injury was caused thereby, were ques- tions which should have been submitted to the jury. Treat v. Boston §• Lowell Railroad, 131 Mass. 371 (1881). 4. A passenger in a street car, after signal- ling to the conductor to stop the car, left his seat, and stood for a moment, while the car was in motion, on the rear platform, upon which there was an accumulation of snow and ice, rendering the platform slippery, expect- ing that the car would stop so that he could alight, and omitted to take hold of the rail. The car jolted, and he was thrown off. Held, that whether he was guilty of such negligence as to preclude his maintaining an action for the injuries thereby received, was a question of fact for the jury, and that the judge should not have directed a verdict for the defendant. Flecks. Union Railway, 134 Mass. 480 (1883). 5. In an action by a woman against a railroad corporation for personal injuries occa- sioned to her while a passenger on the defend- ant's train, it appeared that, when the train reached her destination, the conductor called the name of the station, the train stopped, and several passengers got out at once, with- out unusual delay, among them the plain- tiff, who followed close after the person in front of her; and that, when she got off, the train had started and was moving, by reason of which she fell, and received the injuries complained of. The plaintiff testified that she looked when she was stepping off, but that it was so dark she could not see the plat- form ; and that she did not look to see whether the train was moving, because she felt sure it was still; and there was also evidence that there was no object which any one could see, from which it could be determined whether the train was moving or not. It did not appear that there was any warning which the plaintiff could have heard that the train was about to start. Held, that the question whether the plaintiff was in the exercise of due care should have been submitted to the jury. Brooks v. Boston §• Maine Railroad, 135 Mass. 21 (1883). 6. If a passenger, in a railroad car stand- ing on a side track, is injured by the car be- ing struck by the car of another corporation, through the negligence of a brakeman in the employ of such corporation, in connecting the two cars for the purpose of carrying out a contract between the corporations for their joint benefit, an action may be maintained by the injured person against the corporation owning the car in which he was a passen- 719 NEGLIGENCE, V. 720 ger. White v. Fitchburg Railroad, 136 Mass. 321 (1884). 7. lu an action against a railroad corpor- ation for personal injuries sustained by the plaintiff, while a passenger on a car of the de- fendant road, the accident being caused by another car coming violently against the car in which the plaintifE was riding, while mak- ing a "flying switch," there was evidence that on other occasions the cars had come to- gether with as much violence. Experts testi- fied for the defendant, that connecting cars in this way was a safe and prudent mode of management. One of them testified, on cross- examination, that there was a great dispute among railroad experts as to the safety of "flying switches." The plaintifE put in no expert testimony on this point.- Held, that he was properly allowed to go to the jury on the question whether such a mode of connect- ing the cars, under all the circumstances of the case, was proper. White v. Fitchburg Rail- road, 136 Mass. 321 (1884). 8. A passenger on a steam railroad, who, while waiting, in a proper place and using due cave, on the platform at a station of the railroad corporation, to make a necessary change from one train to another, is injured by being struck by a mail-bag thrown, in ac- cordance with a custom known to the corpo- ration, by a mail agent in the employ of the United States, from a mail car belonging to the corporation on one of its express trains running at a high rate of speed, may main- tain an action for such injury against the corporation. Snow v. Fitchburg Railroad, 136 Mass. 552 (1884). 9. In order to maintain an action against a railroad corporation for causing the death of the plaintiff's intestate, while a passenger, by its negligence or the gross negligence of its servants or agents, it is not necessary for the plaintifE to show that his intestate was not negligent. McKimble v. Boston §• Maine Rail- road, 139 Mass. 542 (1885). 10. If a passenger on a railroad car, who has in his possession a ticket good from one station to another on that road, leaves the car at an intermediate station, not having had an opportunity to surrender his ticket or pay his fare, it cannot be assumed, as matter of law, in an action against the railroad corporation for negligently causing his death, that he was not riding upon the ticket which he held, or that he intended to evade the payment of his fare, or left the car for that purpose. Mc- Kimble V. Boston Sf Maine Railroad, 139 Mass. 542 (1885). 11. A passenger on a railroad car continues to be such while rightfully leaving the car and the station at which it has stopped. Mc- Kimble V. Boston §• Maine Railroad, 139 Mass. 542 (1885). 12. If a railroad corporation has made pro- vision for passengers to leave its cars upon one side only of the track at a station, and it is dangerous to leave upon the other side, in an action against the corporation for negli- gently causing the death of a passenger, while leaving a car upon the wrong side, it is a question for the jury whether it was negli- gent in the corporation not to have provided some means to prevent passengers from leav- ing on that side, or to notify them not to do so. McKimble v. Boston if Maine Railroad, 139 Mass. 542 (1885). 13. A railroad corporation is not bound to exercise the same care towards a passenger who is passing through the station grounds on his way from a train to the highway, that it is under obligation to exercise while the passen- ger is in the train; and in an action by a passenger, who was injured by stepping on some shingles lying on the station grounds, an instruction that "the railroad corporation was bound to take every possible precaution against injury to the plaintiff, and was liable if hu- man foresight could have prevented it, is er- roneous. Moreland v. Boston Sf Providence Railroad, 141 Mass. 31 (1886). 14. A railroad corporation is liable for per- sonal injuries occasioned to a passenger by the unsafe condition of the platform at a sta- tion, along which he was walking, after alight- ing from a train, for the purpose of leaving the station to go to his home, if the platform at that place was fitted and intended for the use of passengers, or was so arranged as to invite them to use it, although the corporation was under no obligation to furnish such a platform, and the proper mode of egress from the station to the nearest highway was in an opposite direction to that in which the pas- senger was going; and the fact that he in- tended, after leaving the platform, to cross the railroad at a place where he had no right to cross it, does not make him a trespasser, or mere licensee, when and where he was in- jured. Keefe v. Boston Sj- Albany Railroad, 142 Mass. 251 (1886). 15. In an action against a railroad corpora- tion for personal injuries occasioned to a pas- senger by coming into collision with a baggage truck, while walking along the platform at a station, after alighting from a train, the ques- tions whether he backed against the truck, or was struck by it, wliether he or the servant of the corporation who was pulling the truck was in the exercise of due care, and whether the platform was properly lighted, are for the jury. Keefe v. Boston §• Albany Railroad, 142 Mass. 251 (1886). Where Traveller is injured at Crossing. 16. In an action against a railroad corpora- tion for personal injuries sustained by the plaintiff by being struck by a train of cars at a place where the railroad crossed a highway at grade, the plaintiff's evidence showed that he was employed by a corporation other than the defendant to watch the track and give notice when any cars or engines of either corporation were about to pass over the highway; that he saw the smoke of the engine when it first came in sight, went to the crossing, and gave the usual signal; that after the engine passed he looked up and down the track, saw nothing, and started to reoross the track, when he was struck, by the train, which was making a fly- 721 NEGLIGENCE, V. 722 ine switch, and -which came upon him from behind ; that the usual signal for cars making a flying switch was not given, but one was given indicating that only an engine or a train of cars was coming, and there was no brakeman on the cars; that a person could see up the track from where he stood nearly seven hundred feet; that he could not tell ■whether any smoke prevented his seeing the cars coming, but if it did he should have waited until it passed away. Held, that the action could not be maintained. Clark v. Boston ^Allany Railroad, 128 Mass. 1 (1879). 17. In an action against a railroad corpora- tion, under a declaration alleging that the plaintiff, while travelling on the highway, was injured at a grade crossing " by reason of the carelessness and negligence of the agents and servants of the defendant," the jury may consider whether, under all the circumstances of the case, the defendant was guilty of neg- ligence m not having a gate or a flagman at the crossing," although never requested by the selectmen of the town, nor ordered by the county commissioners, to do so, under St. 1874, c. 372, § 126. Eaton v. Fitchburg Rail- road, 129 Mass. .364 (1880}. 18. A person, who is injured while crossing the tracks of a railroad corporation at a place not a highway, aud where no inducement is held out to him to cross by the corporation, cannot maintain an action against the corpo- ration for such injury. Wright v. Boston §• Maine Railroad, 129 Mass. UO (1880). 19. A person, who is injured by a train of cars at a place where a highway crosses a railroad at grade, cannot maintain an action against the raUroad corporation, if it appears in evidence, undisputed, that he attempted to cross on foot, without looking to see if a train was coming. Wright v. Boston If Maine Rail- road, 129 Mass. 440 (1880). 20. An action for personal injuries cannot be maintained against a railroad corporation, under St. 1874, c. 372, § 164, if the decla- ration does not allege that the accident oc- curred upon a crossing of a highway at grade, that the statutory signals required at such crossings were neglected by the defendant, and that such neglect contributed to the in- jury. Wright v. Boston If Maine Railroad, 129 Mass. 440 (1880). 21. At the trial of an action against a rail- road corporation for personal injuries occa- sioned to the plaintiff while attempting to cross the tracks in a wagon at a grade cross- ing, the evidence as to how far the view of the track was obstructed by buildings and fences was conflicting. The plaintiff's evi- dence tended to show that, before crossing, he looked up the track; that it was obscured by the smoke of a train which had just passed; that he listened for the whistle of a train, and could hear no whistle or other sig- nal of its approach. Held, that the question whether the plaintiff used due care in cross- ing the track was for the jury. Randall v. Connecticut River Railroad, 132 Mass. 269 (1882). 22. If a railroad corporation so constructs a private crossing over its track, at grade, in a city, that it is held out as a suitable place for foot pas.sengers to cross, the coi-poration is bound to use reasonable precautions for their protection, and is liable for an injury sustained by a person, using due care, who is thereby induced to enter upon the crossing, and is injured by the negligence of the corpo- ration or its servants. And if the plaintiff at the time he was injured was on that part of the crossing so constructed, it is no defence to an action by him against the corporation for such injury, that he entered upon the crossing at a place not so constructed. Murphy v. Boston §• Albany Railroad, 133 Mass. 121 (1882). 23. In an action against a railroad cor- poration for personal injuries, the declaration alleged that the defendant's road crossed a certain highway in a city at grade ; that, on a day named, while the plaintiff was crossing the track on said highway, and in the exer- cise of due care, he was stnick by one of the defendant's locomotive engines, and received the injuries complained of, " through the neg- ligence aud carelessness of the defendant, who carelessly omitted to give any signal while ap- proaching said highway with said locomotive, or warning the plaintiff by ringing a bell or blowing a whistle, or by a flagman or other- wise, that it was dangerous or unsafe then to cross, by reason of the approach of said loco- motive." Held, that the declaration set out a good cause of action against the defendant at common law, but did not sufficiently state a cause of action under St. 1874, c. 372, § 164; and that, under the declaration, the plaintiff could not recover, unless he was using due care when hurt. Fuller v. Boston §• Albany Railroad, 133 Mass. 491 (1882). 24. A railroad corporation constructed its tracks across a private way, which connected two public ways of a city, and over which there was much travel. At the crossing the corporation put up a sign, upon which was the following: " This is not a public way, and is dangerous." Held, in an action against the corporation, by a person injured at the cross- ing by being struck by a locomotive engine of the defendant, that the corporation was not entitled to a ruling, as matter of law, that this sign was a denial of the right of cross- ing, and that a person crossing did so at his own risk. O'Connor v. Boston Sf Lowell Rail- road, 135 Mass. 352 (1883). 25. If, in an action against a railroad cor- poration for an injury sustained by being run over by a locomotive engine of the defendant, at a crossing of a private way at grade, the plaintiff relies upon the alleged negligence of the engineer of the locomotive, and also upon the want of a flagman, the defendant is not entitled to a ruling that, if the engineer used reasonable care, the plaintiff is not entitled to recover. O'Connor v. Boston If Lowell Rail- road, 135 Mass. 352 (1883). 26. In an action against a railroad corpora- tion, for an injury sustained at a crossing at grade, the defendant is not entitled to a rul- ing that the amount of care required of the 723 NEGLIGENCE, V. .724 railroad in using the crossing is the same that is required of the person who attempts to use the crossing, to avoid danger. O'Connor v. Boston §• Lowell Railroad, 135 Mass. 352 (1883). 27. In an action against a railroad corpora- tion, on the St. of 1881, c. 199, § 2, for run- ning over and killing a girl sixteen years old, at a place where a highway crossed a railroad at grade, there was contradictory evidence upon the question of the neglect of the de- fendant to give the signals required by law, but it was conceded that the head-light of the locomotive engine was burning, that the girl was familiar with the locality, that the track was visible for nearly a mile, and that, at the time, it was not dark, but twilight. The plaintiff's evidence tended to show that, when the locomotive engine was within from three to six rods of the crossing, the whistle was blown twice, and the girl, who was then within a few feet of the track, quickened her pace and ran upon the track, and was killed. Held, that the burden of proof was upon the defend- ant to show that the girl was guilty of gross or wilful negligence. Held, also, that the court could not say, as matter of law, that attempt- ing to cross the track under such circum- stances was gross or wilful negligence. Cop- ley V. New Haven §• Northampton Co., 136 Mass. 6 (1883). 28. In an action against a railroad corpora- tion for personal injuries occasioned to the plaintiff, a boy fourteen years old, the evidence tended to show that he, in company with an- other boy, was driving a horse attached to an open wagon, when it came into collision with the defendant's train at a grade crossing ; that the street on which he was riding sloped down- ward through a cut for one hundred feet until it entered upon the railroad track ; that, for a portion of this distance, the smoke-stack of an approaching engine could be seen through a picket fence, and, at a distance of from fifteen to thirty-five feet, a clear view of the track could be had ; and that a train could be heard by a person in that street before it came in sight through the fence. The plaintiff testified that he drove into the street towards the railroad track on an easy trot; that, when he came to the crest of the hill, about one hundred feet from the track, he pulled up, and afterwards drove at a rate half-way between a trot and a walk ; that the other boy pointed out to him a house, which had been hidden from their view by an intervening building until they were over the crest of the hill; that he looked at the house, and then turned to his horse ; that the other boy called his attention to the train when he was within from ten to forty-six feet of the track, and he pulled up the horse, but, thinking he could not stop him, whipped him, drove across, and the wagon was struck on the hind wheel ; and that there was nothing to prevent his hearing the train, except the rattle of the wagon. Both hoys, and another witness, who heard the train coming while sitting in a house near the track, with the windows shut, before the boys turned to look at the house above mentioned, testified that they did not remember hearing the bell on the engine ring. The engineer and the fireman testified that the bell did ring; but the whistle did not sound; and there was no flagman at the crossing at the time of the accident. Held, that the question whether the plaintiff exercised due care was for the jury. Tyler v. New York §• New England Railroad, 137 Mass. 238 (1884). 29. The trains of a railroad corporation were obliged by law to stop within five hundred feet of the point where its tracks crossed those of another railroad. At this stopping place, the coi-poration maintained, upon the eastern side of its tracks, a building and plat- form adapted for the use of passengers, and used by them to enter its trains, and also by the workmen at its shops in the vicinity. No trains of the corporation were advertised to stop at this point; no tickets were sold, and no fares were taken for passages to or from this point; and the name of this stopping place was never called in the trains. A passenger on one of the trains left it at this place upon the westerly side of the tracks, where no provision was made for passengers, and where it was dangerous for passengers to alight, and was killed by a passing train on a parallel track. Held, in an action of tort against the railroad corporation for the death, that the question of the defendant's liability was properly submitted to the jury. McKimble v. Boston §■ Maine Railroad, 141 Mass. 463 (1886). 30. In an action against a railroad corpora- tion for an injury sustained by the plaintifE while crossing the tracks of the defendant railroad, there was evidence that the plaintifE approached the tracks from the northward by a path which did not connect with a public street, but which for some distance northward of the tracks had been used by the public for twenty-five years, and at a more remote point, in the same direction, for fifteen or sixteen years ; that the path was from three to five feet in width, and well defined; that on eact side of the path, near the railroad, there was a ridge two or three feet in height, caused by dirt being thrown up in cleaning ditches oa the side of the railroad, with a clear passage- way left for the path through the ridge; that there was no fence or other obstruction to passing across the railroad from the path, and no objection had been made by the servants of the defendant to persons crossing there, except when cars were approaching: that, when freight cars were left standing on the tracks, openings were sometimes left between them opposite the path ; that at some distance to the westward of the place where the path crossed the tracks was a covered culvert, and between the path and the culvert was a well- worn and smooth space between two lines of tracks; that to the westward of the culvert there was planking between the rails, and a path on the south side of the tracks near the platform of a station of the railroad ; and that some persons using the path when coming from the northward, on reaching the tracks, went by this space between the two tracks to 725 NEGLIGENCE, V. 726 the path on the south side, and others went in different directions. Held, that these facts would not warrant the jury in finding that the defendant had held out an inducement or invitation to use the path to cross the tracks ; and that, in the absence of evidence that the injury to the plaintiff was occasioned by the wilful or reckless misconduct of the defendant or its agents, the action could not be main- tained. Wright v. Boston §• Albany Railroad, 142 Mass. 296 (1886). What is Negligence of Railroad. 31. A city made a contract with a person to take down and rebuild a bridge used as a highway over the tracks of a railroad corpora- tion. In taking down and rebuilding the abutments of the bridge, if more men were needed temporarily on one side than were there at work, they were called to fchat_ side from the other; and were in the habit of crossing the track for that purpose. If a larger force had been employed, there would have been no necessity for crossing. Held, that an action would not lie against the rail- road corporation for an injury sustained by a workman by being struck by a locomotive engine while so crossing the track. Svieeney V. Boston If Albany Railroad, 128 Mass. 5 (1879). 32. In an action against a street railway corporation, for an injury caused by a car being carelessly driven upon and over the plaintiff, the fact that, at the time of the in- jury, the car was being driven at a rate of speed prohibited by a city ordinance, although evidence of negligence on the part of the cor- poration, is not conclusive evidence of such negligence. Hanlon v. South Boston Horse Railroad, 129 Mass. 310 (1880). 33. In an action against a street railway corporation, a declaration alleging that the plaintiff was injured by a car of the defend- ant being carelessly driven upon and over him, is not supported by proof that the plain- tiff was injured by another car, not carelessly driven, in attempting to escape from a car which was carelessly driven. Hanlon v. South Boston Horse Railroad, 129 Mass. 310 (1880). 34. A plaintiff contended that the defend- ant was negligent in not ringing the bell or sounding the steam-whistle; and that the speed was unreasonable. The only witness upon the first point testified that he did not remember whether or not he heard the bell or whistle. The only evidence as to the rate of speed came from two witnesses. One, who saw the train stop, testified that it stopped forty or fifty yards from the crossing where the intestate was struck. The other witness testified that he noticed that the train, after it had stopped, was about three hundred yards from the place of the accident. Held, that there was not sufficient evidence of negligence on the part of the defendant to warrant a ver- dict against it. Tully v. Fitchourg Railroad, 134 Mass. 499 (1883). 35. A railroad corporation made a contract with a person to build a culvert under a high- way alongside of its railroad. By the terms of its contract, the corporation furnished a derrick for use in the work. The derrick, while in use in the highway, fell, in conse- quence of the parting of a guy, which was old and obviously defective when the derrick was delivered by the corporation to the contractor. By the fall, the plaintiff, who was not a ser- vant of the corporation or of the contractor, was injured. Held, that these facts would warrant the jury in returning a verdict for the plaintiff against the corporation. Conlon v. Eastern Railroad, 135 Mass. 195 (1883). 36. At the trial of an action against a street railway corporation for personal injuries occa- sioned to the plaintiff, while a passenger in one of its open cars, by being thrown out of the car, it appeared that the defendant was repairing its track at the place where the ac- cident happened; that, for this purpose, it had removed the paving-stones in the street, and, at the time of the accident, some of them had not been replaced; and there was evidence tending to show that the absence of the pav- ing-stones made the passage at this point dangerous; and that this caused the injury to the plaintiff. Held, that there was evidence of the defendant's negligence which was properly submitted to the jury. Valentine v. Middlesex Railroad, 137 Mass. 28 (1884). 37. Running a railroad passenger train at the rate of thirty miles an hour on a straight track is not gross negligence, within the Pub. Sts. c. 112, § 212. Merrill v. Eastern Rail- road, 139 Mass. 238 (1885). 88. If goods are received by a railroad com- pany and stored, under such circumstances that it is a mere gratuitous bailee, and the goods are destroyed by an accidental fire while so stored, evidence that the place where the goods were stored was not a suitable place with reference to safety from fire, and that suitable means were not provided for extin- guishing fire, is not sufficient to show that the railroad company was guilty of gross negli- gence. Clark V. Eastern Railroad, 139 Mass. 423 (1885). 39. In an action against a street railway corporation for injuries occasioned to the plaintiff, while on a street crossing, by being struck by a car of the defendant, there was evidence that the driver of the car, as it ap- proached the crossing, was looking back at a car which had passed. Held, that there was evidence of negligence on the part of the driver. Collins v. South Boston Railroad, 142 Mass. 301 (1886). 40. At the trial of an action against a railroad corporation for personal injuries oc- casioned to the plaintiff by the alleged negli- gence of the defendant, it was a material question whether a certain gas-burner near the rear of the defendant's station was lighted at the timp of the accident to the plaintiff. Two witnesses produced by the defendant testified, on direct examination, that this bui-ner was lighted at the time of the accident. Upon cross-examination, they testified that they had no memory of that particular night, but that it was the practice to light it. The 727 NEW TRIAL, I., II. 728 plaintiff was then allowed to show, by wit- nesses who had visited the station after the accident, that thia burner was often unlighted in the evening. This testimony was admitted solely upon the ground that the defendant's witnesses had testified that the knowledge they had as to the burner being lighted on the night of the accident was derived from the fact that it was always the practice to light it. Held, that the defendant had no ground of exception. Wentworth v. Eastern Railroad, 143 Mass. 248 (1887). 41. In an action against a railroad corpora- tion for pei'sonal injuries sustained by the plaintiff, while a passenger in the defendant's car, by the fall of the shade of a lamp affixed to the upper part of the car, the only evidence that the fall was occasioned by the defendant's negligence was the fact of the fall while the lamp was not lighted. Held, that, in the ab- sence of evidence of any other cause of the accident, the jury were authorized to infer that the fall was caused by the insufficiency of the fixture. White v. Boston Sf Albany Railroad, 144 Mass. 404 (1887). Accident caused by Fright of Horse. 42. A railroad corporation is not liable for injuries occasioned to a person by reason of his horse becoming frightened, while being driven along a highway parallel to and ad- joining the railroad, by smoke from the engine of a train passing on the railroad in a direc- tion opposite to that in which he was going, caused by adding coal to the fire in the engine, if such act at that place was necessary in the ordinary running of the train; and it is not the duty of those on the engine to be on the lookout for travellers on the highway who may be endangered by such act. Lamb v. Old Colony Railroad, 140 Mass. 79 (1885). NEGOTIABLE INSTRUMENTS. See Bank; Bills and Notes; Check. NEWTON. See Board of Health, pi. 5-10. For a case involving questions arising under the construction of the acts providing for drainage in Newton, see Seweb, pi. 3, 4. NEW TRIAL; SETTING ASIDE VERDICT. I. Objection to Jurors, etc. II. Errors of the Court. III. Errors of the Jury. IV. Newly discovered Evidence. V. Other Causes. VI. Proceedings, Practice; Evidence. As to setting aside verdict in land damage oases, see Railroad; Way. See also Exceptions ; Verdict. I. Objections to Jurors, etc. 1. In an action against a city for personal injuries occasioned to the plaintiff by a defect in a highway, if the jury are directed that, if there are any residents or taxpayers in the city on the jury, such should leave their seats, and the plaintiff does not move to have them ex- amined on oath, under the Pub. Sts. c. 170, § 35, he is not entitled, after a verdict for the defendant, to a new trial, as matter of law although he was ignorant until after the ver- dict that one of the juroi-s was a taxpayer in the city. Daniels v. Lowell, 139 Mass. 56 (1885). 2. In empanelling the jury for the trial of a criminal cause, the clerk drew and called the name of a juror; but through misappre- hension of the name, both by the juror called and by another person, who was in attendance as a juror; duly summoned and qualified, the latter took his seat on the jury, was sworn, and served during the trial. Held, that the defendant, if not injured by the mistake, was not, of right, entitled to a new trial. Com- nwnwealth v. Parsons, 139 Mass. 381 (1885). II. Errors of the Court. 1. In an action for the conversion of per- sonal property, attached upon a writ in favor of the defendant and against one D., the plain- tiff offered evidence tending to show that the property was sold and delivered to him by D. before the attachment. The defendant con- tended that the sale, if made, was fraudulent as against D.'s creditors. The plaintiff testi- fied that, after the sale to him, he kept the property in a place hired by him, and paid rent therefor both before and after the attach- ment, and he was allowed to put in evidence the receipt taken by- him for such payment. Held, that the admission in evidence of the receipt, although the evidence was immate- rial, was not sufficient ground for a new trial. McAvoy V. Wright, 137 Mass. 207 (1884). 2. In an action against several defendants for malicious prosecution, the jury returned a verdict against each defendant for different and largely varying sums. Upon inquiry by the presiding judge, the foreman stated that the aggregate of those sums was the amount which the jury intended to give the plaintiff as damages ; to which the jury assented. The judge then instructed the clerk to prepare another verdict against the defendants, by adding together as damages the several sums named in the first verdict. The verdict was then exhibited to each of the jurors in com- parison with the former verdict, assented to 729 NEW TRIAL, III. 730 by them, signed by the foreman, and affirmed as their verdict. During all these proceed- ings, the jury remained in their seats. Held, that the defendants were entitled to a new trial. Kenney. v. Habich, 137 Mass. 421 (1884). 3. If a case is submitted to the jury under instructions which permit them to find a ver- dict for a party who has not offered evidence sufficient in law to sustain a verdict in his favor, the other party is entitled to a new trial. King v. Nichols.lSS Mass. 18 (1884). 4. If evidence is admitted which constitutes a variance, this court will not grant a new trial on account of such variance, if the case has been fully and fairly tried, but will permit the pleadings to be amended. Denham v; Bryant, 139 Mass. 110 (1885). III. Errors of the Jury. 1. The fact that, at the trial of a criminal case on appeal in the Superior Court, a copy of the record of the lower court went to the jury with the other papers in the case, by in- advertence, does not entitle the defendant to a new trial as of right. Commonwealth v. Nash, 135 Mass. 541 (1883). 2. The original writ in an action, taken on appeal, by the defendant, from a municipal court to the Superior Court, was transmitted to the latter court. Upon the back of it was a memorandum of the amount of the judg- ment, made by the clerk of the municipal court. STeither counsel was aware that this memorandum was upon the writ, and the writ went to the jury without the attention of any one being called to it. The jury returned a verdict for the plaintiff. Held, that the de- fendant was not entitled, as of right, to a new trial. Clapp v. Clapp, 137 Mass. 183 (1884). 3. During the trial of an action, a witness for the defendant, without his knowledge, ap- proached two of the jurors and said to them, "You are on our case; keep your head level and do what is right." The jury returned a verdict for the plaintiff. Held, that the pre- siding judge was not required, as matter of law, to set aside the verdict. Johnson v. Witt, 138 Mass. 79 (1884). 4. Soon after the trial of an action began, one of the jurors asked a friend of the defend- ant " why the defendant had not settled the case, and not allowed the same to come into court." The defendant was informed of this on the same day it occurred. The trial con- tinued two days thereafter, and resulted in a verdict for the plaintiff. Held, that the de- fendant had waived his right to rely upon the conduct of the juror as ground for a new trial. Rowe v. Canney, 139 Mass. 41 (1885). 5. Duringthe trial of a writ of entry brought by the heirs at law of a man who had conveyed the land in controversy against the grantee, a juror was accosted on the street by a man whose faculties were known to be impaired by reason of his advanced age, and who did not know that the person to wliora he spoke was a juror, and asked what case was on trial. On being informed, he said he thought the man had a right to do as he did ; that it was too common in these days, after a man was dead, for the widow or heirs to question his right to dispose of his property ; and that he did not care how many witnesses there were, or what the evidence was, it would not change his mind about the deed standing. The jury returned a verdict in favor of the tenant. Held, that the presiding judge was not re- quired, as matter of law, to set aside the ver- dict. Cowles V. Merchants, 140 Mass. 377 (1886). 6. At the trial of a complaint, on the Pub. Sts. c. 57, § 5, alleging that the defendant had in his possession adulterated milk, to wit, milk containing less than thirteen per cent of milk solids, with intent to sell the same, the only issue on the question of adulteration was whether the milk contained less than thirteen per cent of milk solids or more than eighty- seven per cent of water; and the jury were fully instructed as to what would constitute an adulteration under the statute. When the jury retired to make up their verdict, a paper was given to them, which purported to be, and was, a true copy of the complaint, except that the word "thirteen" was written "thirtee." After a verdict of guilty, the defendant, who then first learned of the clerical error in said paper, moved to set aside the verdict, and for a new trial, upon the ground that the paper was improperly given to the jury; but this motion was overruled. Held, that the defend- ant had no ground of exception. Common- wealth V. Keenan, 140 Mass. 481 (1886). 7. At the trial of an indictment for an as- sault with a dangerous weapon, it appeared that the assault was committed by the defend- ant, in his saloon, by discharging four bullets from a revolver, one of which wounded the person assaulted, and the others lodged in the floor and about the door of the saloon ; and that the holes made by the bullets, and the interior arrangement of the saloon, were in the same condition at the time of the trial as at the time of the assault. After the adjourn- ment of the court the jury agreed upon and sealed up their verdict, and separated. At an early hour the next morning, before the open- ing of court, one of the jurors went to the defendant's saloon, and asked a person living near to show him the shots in the floor and about the door. The person showed the juror the saloon and the holes made by the bullets ; and this was unknown to the defendant or his counsel until after the verdict was ren- dered. Upon the coming in of the court, a verdict of guilty, • sealed up, was returned, affirmed, and recorded. At the hearing of a motion to set aside the verdict, upon the ground of the misconduct of the juror, the presiding judge found that the defendant was not prejudiced by the act of the juror. Held, that this court was not required, as matter of law, to set aside the verdict. Commonwealth V. Desmond, 141 Mass. 200 (1886). 731 NOTICE. 732 IV. Newly Discovered Evidence. No exception lies to the refusal of the Su- perior Court to grant a new trial in a criminal case, where the new trial is asked for on the ground that the verdict is against the weight of the evidence, and on the ground of newly discovered evidence. Commonwealth v. Ruis- seau, 140 Mass. 363 (1886). v. Other Causes. 1. The judge presiding at a trial is not bound, as matter of law, to set aside a verdict, because, in his opinion, it is against the weight of the evidence. Reeve v. Dennett, 187 Mass. 315 (1884). 2. It is within the disci-etion of the Superior Court, under the Pub. Sts. c. 153, § 6, to set aside the verdict and order a new trial in an action, for the omission of the plaintiff's at- torney, by reason of forgetfulness, to put in evidence a deed of land which was material to his cause of action ; and no exception lies to the exercise of such discretion. Greene v. Farlow, 138 Mass. 146 (1884). VI. Proceedings; Practice; Evidence. 1. The court, on ordering a new trial, may direct that issues which were fully tried or conceded at the previous trial shall not be tried again. Merchants' Ins. Co. v. Abbott, 131 Mass. 397 (1881). 2. A motion for a new trial, based upon reasons relating entirely to rulings or omis- sions to rule during the progress of the trial and before verdict, to which the aggrieved party might have excepted, is addressed to the discretion of the presiding judge, to the exercise of which discretion no exception lies ; Pub. Sts. c. 153, § 8, do not apply. Com- monwealth V. Morrison, 134 Mass. 189 (1883). 3. At a new trial, granted upon motion of the defendant, in an action for the conversion of goods, on the issue of the value of the goods alone, no other question than their value is open to the defendant. Pratt v. Bos- ton Heel Sf Leather Co., 134 Mass. 300 (1883). 4. At the hearing of a motion for a new trial, on the ground that, during the trial, jurors were approached improperly, outside of the jury-room, by a witness for one of the parties, although the testimony of the jurors is admissible to prove what such person said to them, it is not competent to prove by their testimony what effect was produced upon their minds. Johnson v. Witt, 138 Mass. 79 (1884). 5. Upon the hearing of a motion for a new trial, the testimony of one juror is not ad- missible to show misconduct of another juror during the trial of the case, whether the mis- conduct is in or out of the jury-room. Rowe V. Canney, 139 Mass. 41 (1885). 6. If a motion for a new trial in a crimi- nal case is overruled, the court is not re- quired to hear another motion based upon the same grounds and supported by the same evidence. Commonwealth v. Ruisseau, 140 Mass. 363 (1886). 7. The declarations of a juror, after the verdict in a case has been rendered, as to his reasons for arriving at the verdict, and the manner in which the verdict was arrived at by the jury, are inadmissible in support of a motion for a new trial. Warren v. Spencer Water Co., 143 Mass. 155 (1887). NOLLE PROSEQUL As to the effect of a nolle prosequi upon the right to maintain an action for a malicious prosecution, see Malicious Prosecution. 1. One count of an indictment charged the defendant with the larceny of a chattel ; an- other count charged him with receiving the same, chattel knowing it to have been stolen. The verdict found the defendant guilty on both counts. Held, that the inconsistency of the verdict could not be cured by the entry of a nolle prosequi of the second count. Com- monwealth V. Haskins, 128 Mass. 60 (1880). 2. After a crimin.al complaint has been en- tered in the Superior Court, upon appeal, the entry of a nolle prosequi by the prosecuting oiEcer, by the procurement of the defendant's attorney, his discharge not being ordered by the court, is not such a termination of the prosecution as will enable him to maintain an action against the complainant for malicious prosecution. Langford v. Boston §• Albany Railroad, 144 Mass. 431 (1887). NONSUIT. 1. If the plaintiff in an action wholly ne- glects to answer interrogatories filed by the defendant, any of which are pertinent and material, it is within the discretion of the court to order a nonsuit; and no exception lies to the exercise of such discretion. Har- ding v. Morrill, 136 Mass. 291 (1884). 2. Under the Pub. Sts. c. 167, §§ 49-60, if a party to a suit flies answers to interroga- tories, the court cannot, without further pro- ceedings, enter a nonsuit or default because the answers are deemed insufficient or evasive, Fels V. Raymond, 139 Mass. 98 (1885). NOTICE. Of the demand and notice necessary in cases of bills and notes, see Bills and Notes, IV. As to what is constructive notice of an un- recorded deed or of a trust, see Deed, III.; Trust. As to notice in taking deposition, see Depo- sition. 733 NUISANCE. 734 As to notice in case of impounding cattle, see Impounding, pi. 3. As to notice of loss in insurance cases, see Insurance, II. (f). As to notice to quit, see Landlord and Tenant, VII. As to notice of sale under power in mort- gage, see Mortgage, II. As to the effect of notice upon the right of a father to exact compensation for the ser- vices of his child, see Parent and Child. As to notice of dissolution of partnership, see Partnership. As to notices under the pauper acts, see Pauper. As to notice in poor debtor cases, see Poor Debtor. As to notice to adverse party, or to produce documents at trial, see Practice. As to notices in laying out ways, assessing damages, &c., see Railroad ; Way. As to the necessity of notice before bring- ing an action for obstructing a private way, see Way. See also Action ; Adoption; Agent; At- tachment ; Board of Health ; Bond ; Carrier ; Demand ; Evidence ; Excep- tions; Execution; Executor; Forcible Entry AND Detainer; Gift; Master and Servant; Presumption; Review; Savings Bank; Spirituous Liquors; Waiver. 1. An entry by a grantor of land, for breach of a condition annexed to the land conveyed, is not invalid for want of notice to the grantee. Langley v. Chapin, 134 Mass. 82 (1883). 2. An assignee of a deposit in a savings bank can set off the same, under St. 1878, c. 261, against a claim of the bank, without a previous notice to the bank of the assign- ment. North Bridgewater Savings Bank v. Soule, 129 Mass. 528. 3. Under the St. of 1877, c. 234, § 8, requir- ing one injured by a defect in a highway to give notice within thirty days to " the county, town, place, or persons by law obliged to keep said highway," etc., in repair, notice need not be given to a person into whose coal-hole one injured stepped, as a prerequisite to a suit against such person. Fisher v. Cushing, 134 Mass. 374 (1883). 4. A notice from a city treasurer that it is his duty to enforce the payment of a tax on land by sale unless the tax is paid forthwith, is not "a notice of sale" within Gen. Sts. c. 12, § 56. Knowles v. Boston, 129 Mass. 551 (1880). NUISANCE. As to abatement by board of health, see Board of Health. As to remedy in equity, see Equity, VIII. Se^ also Action; Arbitrament, III. pi. 2; Attorney General; Constitutional Law; Corporation, V. pi. 3; House of Ill-Fame; Indictment; Law and Fact, I II. pi. 4; Limitation, III. pi. 3; Sewer; Spirituous Liquors; Steam-engine; Town, II.; Urinal; Warrant; Watercourse; Way. 1. In pursuance of St. 1873, c. 340, author- izing the city council of Boston to order the owners of lands within a certain district, " or any of such owners," to raise the grade of their lands "to such permanent grade as may be deemed necessary by the board of aldermen," the board of aldermen passed an order, " that the grade of the cellars, back yards, and va- cant lots of land included within the district " named in the statute " is hereby established at twelve feet above mean low water;" and the city council passed an order that the own- ers of land within the district raise the grade of their lands, " or such portions thereof as are below the grade established by the board of aldermen," to the grade as established by the above order of that board. Upon the land of a person in this district there was a stone building used as a factory, which was built on piles and had no cellar under it. The grade of the lower floor of the building and of the land under it was below the grade established by the above order. The city filled his land outside of the building, but did not fill under or raise the building. Held, that the order of the city council did not in- clude the land upon which his factory stood ; and that he had no legal ground to complain of the assessment. Held, also, that it was no objection to the validity of the assessment that it was made upon each of three distinct lots of land separately for the expense of filling that lot, instead of a single assessment upon all of the petitioner's land in the district. Nicker- son V. Boston, 131 Mass. 307 (1881). No question can be made as to the constitu- tionality of the above statute; and, under it, the whole expense of filling the laud is to be borne by the owner, without regard to the question whether the land is benefited by such filling. Nickerson v. Boston, 131 Mass. 307 (1881). 2. A mill-owner, whose mill is injured by a dam erected and kept up without right, may maintain an action against the person who erected it, for injuries sustained after the wrongdoer has conveyed the dam to a third person. Prentiss v. Wood, 132 Mass. 486 (1882). 3. Upon a lot of land there were two dwell- ing-houses, one fronting on the street, the entrance thereto being from the street, and the-other being at the rear of the lot, front- ing upon a yard and a passageway which ran from the street in a straight line to the rear house. Both of the houses were occupied by tenants, the tenant of the rear house Iseing a shoemaker, who had placed on the side of the front house, with the consent of the tenant, but without the knowledge or consent of the owner of the land, a sign bearing his name and the words " Boot and Shoemaker in the rear." At the rear of the front house there was a storm-door projecting two feet into the yard, which was used only for the purpose of 735 NUISANCE. 736 access to and from the cellar of the house. The owner of the land made an excavation in the yard about a foot from the storm-door, and seventeen feet from the passageway, in order to drain the cellar; and the same was left without light or guard at night. A per- son, who entered upon the premises in the evening for the purpose of transacting busi- ness with the tenant of the rear house, sup- posing that the storm-door was the entrance to the house indicated by the tenant's sign, left the passageway, and, in crossing the yard towards the storm-door, fell into the excava- tion and was injured. Held, that he could not maintain an action against the owner of the land for such injury. Mistier y. O' Grady, 132 Mass. 139 (1882). 4. The declaration in an action of tort against a mill corporation and a railroad cor- poration alleged that the plaintiff was the owner of a parcel of land with buildings thereon; that the mill corporation, in order to form a reservoir for its own use, constructed and maintained a dam across a natural stream, whereby water was dammed up and accumu- lated, which flowed back into a pond ; that the railroad corporation constructed an embank- ment for its railroad through said reservoir, and between the dam of the mill corpora- tion and the plaintiff's land, said embank- ment being solid, except that two small culverts were inserted in it to permit the flow of water from one side of the embankment to the other; that the natural banks of the pond near the plaintiff's land were not of sufficient height to hold the waters of the pond as raised by the dam and the embankment, and the mill corporation raised the banks so that they were higher than the raceway of the dam over which the surplus water passed ; that the embankment was carelessly constructed and maintained by the mill corporation, and was insufficient in height and strength ; that the culverts built by the railroad corporation were carelessly and improperly constructed, and were insufficient in size and improperly placed, so that they would not permit the water to pass freely through the embankment, so as to pass over the raceway of the dam; that both the defendants had knowingly and carelessly permitted said culverts for a long time to be partially filled up with sand and stones, and had knowingly and carelessly permit- ted deposits of sand and other material to accumulate near the entrances to and exits from said culverts, whereby they had become choked and in a great measure filled up and insufficient to permit the water to pass through ; that, in consequence of said dam of the mill corporation and the ill-placed and inslifflcient culverts, and the choked up con- dition thereof, as well as of the entrances and exits thereof, the waters on the side of the railroad embankment nearest to the plaintiff's land were on a certain day, in a season of rain, raised to a great height, and higher than the raceway of the dam, and were kept and maintained by both defendants negligently and at an improper and dangerous height; in consequence of which, and of the careless manner in which the embankment on the shores of the pond was maintained, the wa- ters broke through said embankment and washed away the plaintiff's buildings. Held on demurrer, that the declaration set forth a good cause of action against both defendants. Bryant v. Bigelow Carpel Co., 131 Mass. 491 (1881). 5. If a person employs a contractor to con- struct a drain from his' cellar into the com- mon sewer in the street, through a plank barrier which surrounds, beneath the surface of the street, the block of buildings in which the cellar is situated, and the work is done so negligently and improperly that, after it ia finished, tide-water flows through the opening made in the barrier and through the cellar into an adjoining cellar, the person employ- ing the contractor is liable for the damage caused to the owner of the adjoining cellar. Sturges v. Theological Educational Society, 130 Mass. 414 (1881j. 6. An indictment alleging that the defend- ant collected together certain filth and allowed it to remain near the dwelling-houses of dirers persons then inhabiting said houses, and near a certain public road and highway, "to the great damage and common nuisance of the in- habitants of the said houses and of all per- sons then and there passing upon and along the said public road and highway," suffi- ciently avers the nuisance to be public in its character. Commonwealth v. Sweeney, 131 Mass. 579 (1881). 7. In an action for a violation of the plain- tiff's right to lateral support, by so digging upon the defendant's adjoining land as to cause a portion of the plaintiff's land and a stone wall upon it to fall, and to endanger trees which have been set out upon the laud, designed for a burial place, which design is not known to the defendant, although the de- fendant is guilty of gross carelessness, the measure of damages will not include injury to the plaintiff's feelings. White v. Dresser, 135 Mass. 150 (1883). 8. An indictment on the Pub. Sts. c. 101, § 6, for keeping and maintaining a common nuisance, to wit, a tenement used for the ille- gal sale and illegal keeping of intoxicating liquors, to the nuisance of all peaceable citi- zens, is sufficient, without more particularly charging the illegal sale or illegal keeping of intoxicating liquors ; and is supported by proof that the tenement was used by the defendant for the illegal sale and illegal keeping of in- toxicating liquors. Commonwealth v. Ryan, 136 Mass. 436 (1884). 9. The allowing an old, defective, and de- caying plank sidewalk, along one side of a private way, to remain contiguous to the rear of premises which have been under lease for several years, with no means of access from the premises to the sidewalk, will not render the owner of the premises and of the land under the sidewalk, liable to an action for personal injuries sustained by one passing over the sidewalk, in consequence of_ its de- fective condition. Birnhaum v. Croioninshield, 137 Mass. 177 (1884). 737 NUNC PRO TUNC. 738 10. Maintaining a public nuisance for twenty years does not give a prescriptive right to maintain it. New Salem v. Eagle Mill, 138 Mass. 8 (1884). 11. An action, by a person who suffers a peculiar and special damage from a public nuisance, may be maintained against a person ■who continues the nuisance, although a recov- ery for the injury done by the creation of the nuisance is barred by the statute of limita- tions. New Salem v. Eagle MUl, 138 Mass. 8 (1884). 12. The owner of a lot of land, on which was a barn, conveyed, by a warranty deed, a portion of the land, by metes and bounds, the boundary line in fact runuing through the barn. The grantee out off so much of the barn as was on his own land. Held, that the grantor could maintain an action against the grantee for the loss of support and of shelter to the plaintiff's portion of the bam. Adams V. Marshall, 138 Mass.. 228 (1885). 13. If the appearance of premises is such as to indicate an open space as the mode of approach to a certain portion thereof, in an action by a person lawfully thereon, for an injury caused by a defect in such open space, the jury would be warranted in finding, from the absence of any marks defining and sepa- rating the approach proper from the rest of the space, that the plaintiff was properly where he was injured. Learoyd v. Godfrey, 138 Mass. 315 (1885). 14. If a pond and the waters of a stream running into the pond are taken for the pur- pose of supplying a city with pure water, it is. no defence to a petition in equity, under the St. of 1884, c. 154, for an injunction to re- strain a person from polluting the stream, that the city lias, by means of a dike, prevented the waters of the stream from running into and polluting the waters of the pond. Mar- tin V. Gleason, 139 JVIass. 183 (1885). 15. An indictment charged that the defend- ant, at certain times and at a place named, " near the dwelling-houses of divers good citi- zens of the said Commonwealth, and also near divers public streets and common high- ways there situate," did keep and maintain five hundred swine, " by reason whereof di- vers large quantities of noisome, noxious, and unwholesome smokes, smells, and stenches, on the days and times aforesaid, then and there were emitted and the air there- abouts .... greatly filled and impregnated with many noisome .... stinks and stenches, and has been corrupted and rendered very in- salubrious, to the great damage and common nuisance of all the citizens," etc. Held, suf- ficient. Commonwealth v. Perry, 139 Mass 198 (1885). 16. A piggery, in which swine are kept in such numbers that their natural odors fill the air thereabouts, and make the occupation of the neighboring houses and passage over the adjacent highways disagreeable, is a nuisance. Commonwealth v. Perry, 139 Mass. 198 (1885). 17. On the trial of an indictment for main- taming a common nuisance, by keeping a large number of swine in the neighborhood SUPPLEMENT. — 24 of certain dwellings and highways, evidence is inadmissible that it is a custom in this Com- monwealth to tolerate the location of such establishments in populous localities. Com- monwealth V. Perry, 139 Mass. 198 (1885). 18. A license " to set up and run a station- ary steam-engine, for the purpose of driving machinery used in generating electricity," is no bar to an action, oy the owner of a dwell- ing-house within five hundred feet of the licensee's works, for a nuisance occasioned by noise, jarring, and vibration caused by the machineiy, as distinct from the engine. Quinn V. Lowell Electric Light Corporation, 140 Mass. 106 (1885). 19. An omission in a complaint, under the Pub. Sts. c. 80, § 21, for permitting a nui- sance to remain on premises after the time prescribed by the board of health of the town for its removal, to allege that the complainant is an agent of the board of health, he being in fact such agent, is at most a formal defect, which can be availed of only by a motion to quash. Commonwealth v. Alden, 143 Mass. 113 (1886). 20. On a petition by a person whose land had been taken to abate a nuisance under the authority of the St. 1883, c. 176, it appeared that no agreement had been made as to the amount of damages ; and that no award had been made by the city taking. Held, that, under the Pub. Sts. c. 49, § 105, the petitioner was not entitled to costs. Hamlin v. New Bedford, 143 Mass. 192 (1887). 21. In an action for a nuisance, namely, the maintenance and use of a steam-engine, boil- ers, and machinery, from May to November, 1883, in violation or in excess of a license to the defendant, the record of a judgment re- covered by the plaintiff in a former action against the defendant for the same nuisance, from December, 1882, to May, 1883, the last two months only of which period were cov- ered by a license, is inadmissible in evidence. Quinn v. Lowell Electric Light Corporation, 144 Mass. 476 (1887). 22. In an action for a nuisance, namely, the maintenance and use of a steam-engine, etc., from May to September, 1883, within five hundred feet of the plaintiff's dwelling, it appeared that, on September 1, the defendant sold and ceased to occupy the premises. The plaintiff put in evidence the amount of jar- ring, trembling, and shaking during defend- ant's occupancy up to September 1, 1883; and was then asked by his counsel what was the comparative amount of jarring, etc. in Oc- tober, 1883, preparatory to introducing the testimony of others, who visited the premises m October, 1883, as to the jarring, etc. at that time. Held, that the question to the plaintiff was rightly excluded. Quinn v. Lowell Electric Light Corporation, 144 Mass. 476 (1887). NUNC PRO TUNC. See Judgment. 739 OFFICER. 740 o. OBSCENE PUBLICATION. An indictment on the Pub. Sts. c. 207, § 15, for publishing a paper containing obscene language, must, at least by some general de- scription, identify the paper. Commonwealth V. WrigU, 139 Mass. 382 (1885). OFFER OF REWARD. If a town ofiers a reward for the detection and conviction of an incendiary, and infor- mation which leads to the discovery of the criminal is first obtained by a State detective (who is prohibited by St. 1875, c. 15, § 6, from claiming any part of the reward), and he communicates such information to another person, upon whose advice the criminal con- fesses his guilt to him and to the officer together, and conviction is secured upon proceedings founded on the confession, such person is not entitled to maintain an action against the town for the recovery of the re- ward. Dunham v. Stoekbridge, 133 Mass. 233 (1882). OFFICER. As to military officers, see Militia. As to police officers, see Police Officer. As to public officers other than sheriffs, constables, etc., see Public Officer. See also Action ; Arrest ; Assault ; At- tachment; Bankrupt, VI. pi. 2; Bond; Case Stated; Certiorari; Escape; Estop- pel; Execution; False Imprisonment; Husband and Wife; Malicious Prosecu- tion; Mortgage, IV. pi. 8, 9; Pilot; Poor Debtor ; Receiptor ; Replevin ; Town; Trespass; Trover; Warrant; Writ. 1. As the power confeiTed upon justices of the peace by Gen. Sts. c. 46, § 5, to order ob- structions in a town way or private way to be removed, is not a judicial power, a sheriff is not responsible for the acts of his deputy in executing such an order. Davis v. Smith, 130 Mass. 113 (1881). 2. The mortgagee of goods attached, while in the possession of the mortgagor, by an invalid attachment, may maintain replevin against the attaching officer. Allen v. But- man, 134 Mass. 347 (1883). 3. An officer, who has attached the property of one person on a writ against another per- son, cannot set up, in bar of an action of trover against him by the owner, that the property when attached was in the possession of a carrier who had a lien upon it for freight. Stearns v. Dean, 129 Mass. 139 (1880). 4. When it is necessary to determine the exact time of an attachment, the hour at which it was made, if not stated in the officer's re- turn, may be proved by other evidence. Garity V. Gigie, 130 Mass. 184 (1881). 5. The refusal of a constable to restore at- tached property to the owner, upon the ter. mination of the action in the latter's favor, is a breach of the condition of his official bond that he shall " faithfully perform all the du- ties of a constable in the service of all civil processes which may be committed to him." Dennie v. Smith, 129 Mass. 143 (1880). 6. If an equity of redemption in land is sold, under the Gen. Sts. c. 103, § 40, the pur- chaser acquires no title by the delivery and recording of the deed of the officer who makes the sale, unless the officer makes a return upon the execution. Walsh v. Anderson, 135 Mass. 65 (1883). 7. A constable or a private person has no authority to serve the process issuing upon a libel for divorce, unless by special order of the court. Leavitt v. Leavitt, 135 Mass. 191 (1883). 8. A mortgagor of personal property, who is rightfully in possession at the time when it is wrongfully attached, may maintain an ac- tion against the attaching officer, although the attachment constitutes a breach of a condition of the mortgage. Copp v. Williams, 135 Mass. 401 (1883). 9. At the trial of an action against an offi- cer for attaching the plaintiff's goods, the evi- dence was that the defendant attached the "stock of goods " in the plaintiff's store; and that a certain person had a mortgage upon " said stock of goods." Held, that the de- fendant was not entitled to a ruling that there was no evidence that all the stock of goods in the store at the time of the attachment was included in the mortgage, and that an attach- ment of goods not included in the mortgage would be lawful. Allen v. Wright, 136 Mass. 193 (1883). 10. An officer, who fails to complete an at- tachment of property by returning the writ upon which the attachment is made, cannot, after judgment against him in an action by the owner of the attached property, maintain an action against the obligors in a laond, given to the officer by the attaching creditor, to indem- nify the officer against liability by reason of the attachment. Wiggin v. Atkins, 136 Mass. 292 (1884). 11. The testimony of a referee, to whom is referred an action against an attaching officer by the owner of the attached property, as to the reasons for his award against the officer, upon which judgment is rendered, is incom- petent and immaterial in an action by the officer against the obligors in a bond, given to him by the attaching creditor, to indemnify 741 OFFICER. 742 him against liability by reason of the attach- ment, although the obligors were notified of the action against the officer, and defended it. Wiggin v. Alkins, 136 Mass. 292 (1884). 12. An officer's return on an execution levied upon land stated that he gave notice in writ- ing of the time and place of sale to A., the debtor, by leaving the same at his last and usual place of abode. The officer subsequently petitioned the court for leave to amend the return by adding the words, "as I could not find the said A. in my precinct," and in the petition stated, under oath, that he " did not find said A." in his precinct. The court al- lowed the amendment. Held, on a writ of entry, against the purchaser at the sale on execution, by a subsequent mortgagee of "the debtor, to foreclose the mortgage, that the court had power to allow the amendment; and that, if the legality of the action of the court in allowing the amendment could be questioned in this proceeding, it was not to be presumed that the amendment was allowed on the affi- davit of the officer alone. Held, also, that the amended return could not be contradicted or falsified by oral evidence. Sawyer v. Harmon, 136 Mass. 414 (1884). 13. A seizure, by a constable, of the prop- erty of one person upon an execution against another, is a breach of the condition of the constable's bond for the faithful perform- ance of his duties in the service of civil processes, for which he and his sureties are liable; and it is immaterial that the execu- tion is one which he has no authority to serve, if, in making the seizure, he acts colore officii. Turner v. Sisson, 137 Mass. 191 (1884). 14. A constable may, upon a capias issued by a district court in a criminal case, arrest a person outside of the town for which he is elected, but in the same county, and within the jurisdiction of the court issuing the war- rant. Sullivan v. Wentworth, 137 Mass. 233 (1884). 15. An officer, who enters upon premises at the request of a tenant, for the purpose of ai-- resting a person there engaged in disturbing the peace, may maintain an action for an in- jury caused by their defective condition, while leaving them with the offender in his custody. Learoyd v. Godfrey, 138 Mass. 315 (1885). 16. An officer attached all the goods in a store occupied by A., on a writ against him ; and A. delivered the key of the store to the officer, who closed and looked it. A few days after the store was closed, A. and B. broke and entered it in the night-time, and were found there by the officer; and they refused to leave when requested by the officer, and resisted his attempt to expel them, claiming a right to remain there. The officer there- upon procured their arrest, and made a com- plaint against them for breaking and enter- ing his store with intent to steal. A., who was the owner of the goods attached and the lesseeof the store, and lived in a tenement over it, was known to the officer. B. was not known to the officer, but offered to him a writing as evidence of his right to be in the store. Held, in an action by A. and B. against the attaching officer for malicious prosecution, that the evidence would warrant a finding that the prosecution was without probable cause, and malicious. Bobsin v. Kingsbury, 138 Mass. 538 (1885). 17. An action may be maintained upon a constable's bond, on proof of a judgment against him in an action for official miscon- duct, although no demand has been made upon him for payment of the amount of the judgment, if he has rendered such demand impossible by his withdrawal from the State. Fall River v. Riley, 138 Mass. 336 (1885). 18. A bond was given to an officer with condition to indemnify him from all suits, damages, and costs whereto he might be liable or obliged by law to pay by reason of levying a certain execution. The owners of the prop- erty levied on recovered judgments against the officer, whereon executions were issued. Held, that, in an action on the bond, the obligor was liable for the amount of the pen- alty, although the executions had not been paid by the obligee. Cook v. Merrijield, 139 Mass. 139 (1885). 19. In an action against the sureties upon a constable's bond, they may impeach the validity of the judgment against their prin- cipal, by showing that there was no jurisdic- tion in the court rendering the judgment, by reason of want of legal service upon him of the writ in the original action. Fall River v. Riley, 140 Mass. 488 (1886). 20. The return of an officer who served the writ in an action stated that the officer, " being unable to find the defendant at his last and usual place of abode," summoned him to appear and answer by leaving with one M., "agent of said defendant, a sum- mons of this writ, and he accepted the same as said agent." Held, that the return did not show a valid service upon the defendant. Fall River v. Riley, 140 Mass. 488 (1886). 21. The condition of a bond given to an at- taching officer, to indemnify and save him harmless "of and from all suits, damages, and costs whatsoever, whereunto he may be liable, or obliged by law to pay to any person or persons, by reason of the said attachment," includes counsel fees reasonably incurred in the defence of an action occasioned by the attachment. Lindsey v. Parker, 142 Mass. 582 (1886). 22. If a constable, who, under the Pub. Sts. c. 170, § 2, is exempt from serving as a juror, is duly drawn and serves as a juror in a case, a party thereto is not entitled to a new trial as of right. Moebs v. Wolffsohn, 143 Mass. 130 (1886). 23. In an action against a constable for ac- cepting insufficient sureties on a bond taken by him in a service of a replevin writ, the re- plevin writ with the defendant's return there- on, and the bond with his acceptance thereon, are admissible in evidence to prove the execu- tion of the bond, and that he accepted it as sufficient, without proving the signatures to the bond by the attesting witness, or offering further proof that the defendant accepted the bond. Carter v. Duggan, 144 Mass. 32 (1887). 743 ORDER. T44 24. In aa action against a constable for ac- cepting, on January 23, 1875, insufficient sureties on a bond taken by him in the ser- vice of a replevin writ, the record of an action brought by the plaintifE upon the bond, and the return of the officer upon the execu- tion which issued in it, dated May 23, 1877, that he had made diligent search, and could find no property of the defendant within his precinct, are admissible to show that the bond was insufficient ; aud the fact that the execu- tion had not been returned into court does not make it incompetent evidence. Carter v. Duggan, 144 Mass. 32 (1887). 25. In an action against a constable for ac- cepting, on January 23, 1875, insufficient sure- ties on a bond taken by him in the service of a replevin writ, an officer, who served the execution issuing in an action brought by the plaintifE upon the bond, may testify that, be- tween March 24 and May 23, 1877, he could find no property of the principal or sureties on the bond, and that they were worthless. Carter v. Duggan, 144 Mass. 32 (1887). 26. In an action against a constable for ac- cepting insufficient sureties on a bond taken by him in the service of a replevin writ, the amount of the judgment recovered by the plaintifE in an action brought upon the bond is admissible in evidence upon the question of damages. Carter v. Duggan, 144 Mass. 32 (1887). ORDER. See also Assignment, I. (c), pi. 4; Bank- rupt, III. pi. 4; Bills and Notes; Con- tract, II. pi. 8; Trustee Process. 1. A. and B. entered into a contract, by which A. agreed to sell B. a tract of land, and B. was to build ten houses upon it. A. was to advance a certain sum upon each house as the work progressed. B. was to give a power of sale mortgage of a certain amount upon each house, and, when the houses were finished, A. was to sell the mortgages, and, after taking out such amounts as were due him for the land and for advances, insurance, and other expenses, to pay over the balance to B. The mortgages were made and placed in the hands of A.'s agent. Afterwards, but before the mortgages were recorded, B. gave C. an order on A.'s agent, directing the latter to pay C. the amount of his bill for certain materials furnished for the houses, not ex- ceeding a sum named, "to be paid when mortgages are placed, and from the amounts realized from said mortgages above the amount due A. for land and advances." On the back of this order A.'s agent indorsed the following: " Received from C. the original of which the within is a duplicate, and which I hold for the purpose within named, and which will be reserved in accordance with bills pre- sented, approved by B., and on conditions within named." B. failed to perform his contract. A. disposed of two of the mort- gages at their full value ; and, by transferring the others as collateral security, he realized a sum which was not enough to pay him for his land and advances. Held, in an action by C. against A. on the order accepted by him, that by the words " when mortgages are placed," the parties meant sold or realized ; and that the action could not be maintained. Bailey V. /oj/, 132 Mass. 356 (1882). 2. A sub-contractor for building a church drew an order on the person with whom he made the contract, payable to A. " from per- centage retained on work." The order was accepted, " payable when the work is accepted by the church." Before the order was ac- cepted, the tower of the church was found to be defective, and was taken down, and its completion had been abandoned. by the mu- tual consent of the church society and the contractor; but the society then contended that the defect was owing to the fault of the contractor, and retained a large sum of money which, by the terms of the contract, would have been payable on the completion of the work. Held, in an action on the order by A. against the acceptor, that, if the defect was owing to this cause, and not to a defect iu the plan, the action could not be maintained, although the society, before the action was brought, occupied and used the building. Gray V. James, 128 Mass. 110 (1880). 3. B. gave to A. an order on C. payable in goods, as collateral security for promissory notes of B. C. accepted the order, and there was a good consideration as between A. and C. The notes, except one, were not paid by B., and A. made a demand on C. to fill the order according to C.'s own construction of it, and in C.'s own way. C. refused, assign- ing no reason except that the order was not legal. Held, that C. could not successfully defend a suit on the order to the amount of the notes not paid, on the ground that no statement had been made "of the amount due on said notes, or how many had been paid," the refusal to perform the contract having been absolute. Rogers v. Union Stone Co., 134 Mass. 31 (1883). 4. An acknowledgment by the drawee of the receipt of an order does not constitute an acceptance of and promise to pay the order. Smith V. Milton, 133 Mass. 369 (1882). 5. An order drawn upon a committee com- posed of several persons may be accepted by such persons individually, it not appearing that the committee difEers from any associar tion of individuals, not incorporated nor co- partners. In such a case, although a bill may be treated as dishonored if not accepted by all the drawees, if accepted by a part it will be a good acceptance as to them. Smith v. Milton, 133 Mass. 369 (1882). 6. A written instrument, headed with the name of a certain bank, containing a certain sum in figures, and requesting the payment of that sum to the order of a person named, purporting to be signed by a certain person as cashier, and addressed to another bank, is properly described in an indictment for for- gery, in which it is set out according to its tenor, as an "order for money." Common- wealth Y. Parsons, 138 Mass. 189 (1884). 745 PARENT AND CHILD. 746 7. In an action for the price of a safe, it appeared that the defendant delivered to the agent of the plaintiff a paper signed by him, and addressed to the plaintiff, requesting him to send the safe to him at a certain place, and promising to pay a certain price after receipt of the safe. The paper stated on its face that the order was subject to the plaintiff's approval, and was not to be countermanded; and that the safe was to be delivered on the cars in the city where the plaintiff did busi- ness. The order was sent to the plaintiff, the day after it was signed, and he put the safe on the cars, addressed to the defendant. The defendant was allowed to testify, against the plaintiff's objection, that the paper was delivered by the defendant to the plaintiff's agent with the understanding that he was not to forward it to the plaintiff for several days, but was to hold it subject to the defendant's order, and to destroy it if the latter should decide, within the interval specified, that he did not want the goods; and also to put in evidence a letter from the defendant to the agent, mailed the day after the paper was signed, countermanding the order for the safe. Held, that the plaintiff had no ground of ex- ception. Morris v. Brighlman, 143 Mass. 149 (1887). 8. In an action by the payee against the acceptor of an order, above whose accept- tance were written the words, "To be paid out of the last payment," evidence is ad- missible that the words quoted were under- stood and agreed by the parties to mean that the order was only to be paid out of the last payment provided for in a building contract between the drawer and the acceptor, and that, if the drawer did not fulfil his contract so that said payment became due, the ac- ceptor would not be liable to the payee on the order; and evidence is also admissible that the acceptor's architect told the payee to write into the order the words, " To be paid out of the last payment under the con- tract," that the payee then wrote the words appearing on the order, saying that there was not room to write the rest, and that would do just as well, and that the architect and the acceptor assented to it. Proctor v. liarligan, 143 Mass. 462 (1887). 9. If A. draws an order on B., which he accepts, for the payment of a sum of money to C, " to be paid out of the last payment," which words are understood by the parties to mean that the sum named in the order is to be paid out of the last payment to become due to A. under a written contract with B., which is afterwards broken by A., so that the last payment contemplated by it never becomes due to him, the acceptance of the order by B. is conditional, and C. cannot maintain an action thereon against B. Proctor v. Harti- gan, 143 Mass. 462 (1887). ORDINANCE. See By-Laws. OUSTER. See Adverse Possbssion; Joint Tenants. OVERSEER OF THE POOR. See Bastardy Process; Pauper; Parent AND Child. P. PARDON. The Pub. Sts. c. 218, §§ 12-14, providing that, in any case in which the Governor is authorized by the Constitution to grant a pardon, he may, with the advice of the Coun- cil, upon the petition of the person convicted, grant a conditional pardon, and that, where the conditions of the pardon are violated, he shall be arrested, and the Governor and Coun- cil shall " examine the case of such convict, and, if it appears by his own admission or by evidence that he has violated the conditions of his pardon, the Governor with the advice of the Council shall order the convict to be re- manded and confined for the unexpired term of his sentence," are constitutional; and the Governor and Council may order the convict to be so remanded and confined without notice to him, and without giving him an opportu- nity to be heard. Kennedy's case, 135 Mass. 48 (1883). PARENT AND CHILD. See also Adoption ; Assault, I. pi. 2 ; Bastardy; Descent; Devise; Guardian; Infant; Negligence; Pauper; Seduc- tion; Will. 1. A man is under no legal obligation to support his step-children, either at common law or under the pauper acts of this Common- wealth. Brookfield v. Warren, 128 Mass. 287 (1880). 2. In an action by a father to recover com- pensation for the services of his minor son 747 PARK. 748 rendered to the child's grandfather, there was evidence that the child lived with his grand- father during the period covered by the claim, attending school part of the time and working on the defendant's farm during vacations and after he left school; and that, a few months before the period covered by the claim, the plaintiff notified the defendant that, if the child should thereafter perform services for the defendant, the plaintiff would exact full pay for such services. Held, that the plaintiff was not entitled to a ruling that, if this noti- fication were proved, the plaintiff was entitled to recover the value of such services to him, irrespective of their value to the defendant. Williams v. Williams, 132 Mass. 304 (1882). 8. A father is not liable for the support of his minor child, after the custody of the child has been given to the mother by a decree of this court, under the St. of 1874, c. 205. Brow V. Brightman, 136 Mass. 187 (1883). 4. A complaint on the St. of 1882, c. 270, § 4, which provides that " whoever unreason- ably neglects to provide for the support of his minor child shall be punished," alleged that the defendant was the father of one M., a minor child under the age of twenty-one years ; that the defendant, at a time and place named, knowingly and unreasonably neglected to provide for the support of the said M., the minor child of the defendant; and that the defendant, at the place and from the time first named to the date of the complaint, knowingly and unreasonably had neglected to provide for the support of the said M. , the minor child aforesaid. Held, that the complaint was suf- ficient. Commonwealths. Burlington, 136 Mass. 435 (1884). 5. At the trial of a complaint on the St. of 1882, c. 270, § 4, for neglecting to provide for the support of a minor child, a witness for the government testified that he had a conversa- tion with the defendant, a few days before the statute went into effect, about the statute and about the future support of his child. The witness was then asked by the government what the defendant said at that time about the future support of his child, and the wit- ness testified that the defendant said " he would do nothing about supporting the child; that he would break up his business and leave the country first, unless he could control his mother-in-law's property." Held, that this evidence was admissible, as tending to show that the defendant intentionally neglected to support his child. Commonwealth v. Burling- ton, 136 Mass. 435 (1884). 6. The commitment, under the St. of 1882, c. 181, § 8, of a child to the custody of the overseers of the poor of a city, by a district court, upon finding that the child was, by the neglect of its parent, growing up without edu- cation or salutary control, and in circumstan- ces exposing it to lead an idle and dissolute life, is valid, and the statute is constitutional; but the commitment is not conclusive upon the parent as an adjudication on his right to the custody of the child; and, upon a petition for a writ of habeas corpus to obtain the cus- tody of the chUd, the parent may show that the cause stated for the commitment no longer exists, that he is competent and fit to have the care of the child, and that the welfare of the child will permit of its removal to its parent's custody. Farnham, v. Pierce, 141 Mass. 203 (1886). 7. Neither at common law, nor under the Pub. Sts. c. 84, § 6, is a married woman, whose husband is living, under legal obliga- tion to support their children, even if the husband is imprisoned for crime;, and her right to acquire a settlement, under the Pub. Sts. c. 88, § 1, cl. 6, 7, by a residence of five years, is not taken away, under § 2, by her receiving money, during the five years, to be used for the board of her pauper child. Glea- son V. Boston, 144 Mass. 25 (1887). PARISH AND RELIGIOUS SOCIETY. See Charity; Trust. For a case involving the liability of a reli- gious society to a person entering its premises under an implied license, see Negligence, I., II. As to exemption from taxation, see Tax. 1. A by-law of a religious society provided as follows: " Any member who shall either cease to regularly worship with the society, or who shall fail to contribute to the support of its public worship for the term of one year, shall have his or her name dropped from the list of members." Held, that a member could be deprived of his membership only by a vote of the society, after a hearing. Gray v. Christian Society, 137 Mass. 329 (1884). 2. A by-law of a religious society provided that the object for which a special meeting was called must be stated. Another by-law provided that a new member must be approved by a vote of the society. The wan-ant which called a special meeting of the society, at which several persons were admitted to mem- bership and allowed to vote, contained no ar- ticle for the admission of new members, but contained the general article, " To transact any other business that may legally come be- fore said meeting." Held, that the election of such persons was invalid. Gray v. Chris- tian Society, 137 Mass. 329 (1884). 8. Under a by-law of a religious society, which, after specifying certain particular pow- ers and duties of its standing committee, provides, " and generally to manage the busi- ness of the society, expending only such sums of money as the society shall place at their disposal," the committee have no authority to employ counsel on the credit of the society, in a suit in equity brought against the society. Childy. Christian Society, 144Mass. 473 (1887). PARK. 1. St. 1875, c. 185, authorized a board of park commissioners to locate and lay out t49 PARTIES TO ACTIONS. 750 •within the city of Boston a public park, to take such lands as the board should deem desirable therefor, and to assess upon any real estate in Boston, -which, in the opinion of the board, should receive any benefit and advantage from such locating and laying out, beyond the gen- eral advantages to all real estate in the city, " a proportional share of the expense of such location and laying out," the entire amount so assessed upon any estate not to exceed one half of the amount adjudged by the board to be the whole benefit received by it. Held, that the statute authorized an as- sessment only for expenses either actually paid or incurred, and not for estimated expenses. Foster v. Park Commissioners, 131 Mass. 225 (1881). The board purchased a large tract of flats, over part of which the tide flowed, the rest being marsh, and proceeded to lay out ave- nues and to fill them vs^ith gravel ; and, when but a small portion of the area was filled, and none of the avenues were completed, passed an order declaring that they had taken, and did thereby take and create, as a public park, certain land, being in fact that already pur- chased, and also passed a further order recit- ing that, whereas by the previous order a park was located and laid out, they laid an assess- ment upon certain lands benefited thereby. This assessment was in fact less than the suras which had then been expended for the purchase of the land and for the filling al- ready done. Held, on a petition for a writ of certiorari, by the owners of estates so assessed, to quash the assessment, that the park was laid out, within the statute; and that the court could not say, as matter of law, that the estates of the petitioners had not been bene- fited by what had been done at the time the assessment was made. Foster v. Park Com- missioners, 133 Mass. 321 (1882). As to the power of the board aforesaid to amend its record, see Amendment, pi. 9. 2. Under the St. of 1875, c. 185, authorizing the taking of land for a park in Boston, and the laying out and improvement of the same, and the assessment of betterments, and pro- viding that there shall be no expenditure of money until an appropriation is made therefor by a vote of two thirds of each branch of the city council, and under the St. of 1886, c. 304, providing that the city council may, by a two- thirds vote, authorize the issue of bonds to the amount of $500,000 each year, and that, upon such vote being passed, the park commission- ers appointed under the St. of 1875 shall pro- ceed without delay to construct the park, the city council can alone determine what appro- priations shall be made; and persons whose lands have been assessed for betterments, and whose lands are so situated that access cannot be had to them until the park is completed, cannot maintain a petition for a writ of man- damus to compel the city council to appro- priate money to complete the park. Boston Water Power Co. v. Mayor and City Council of Boston, 143 Mass. 546 ([1887). 3. At the trial of a petition for the assess- ment of damages for a parcel of land taken by a city for a park, under the St. of 1875, c. 185, evidence of sales of lots situated like the petitioner's land is not incompetent merely because the lots sold are small and the parcel taken is large. Sawyer v. Boston, 144 Mass. 470 (1887). 4. At the trial of a petition for the assess- ment of damages for land taken by a city for a park, under the St. of 1875, c. 185, no ex- ception lies to the exclusion of evidence of the price paid by the city for other land similarly situated, if the settlement was made when it was apparent that, if the owner did not agree with the city, bis land would be taken for the park. Sawyer v. Boston, 144 Mass. 470 (1887). 5. At the trial of a petition for the assess- ment of damages for land taken by a city for a park, under the St. of 1875, c. 185, an ex- pert, who had testified, for the respondent, as to the value of the land taken, gave as one of his reasons the price paid by the city for other land similarly situated, and stated it. The settlement for this land was made when it was apparent that, if the owner did not agree with the city, his land would be taken for the park. The judge instructed the jury, that, " so far as an expert's opinion is based upon what the jury would not have the right to consider, his opinion is, of course, impaired in value for that reason." Held, that the respondent had no ground of exception. Sawyer v. Boston, 144 Mass. 470 (1887). 6. At the trial of a petition for the assess- ment of damages for several parcels of land taken by a city for a park, under the St. of 1875, c. 185, after a verdict for the petitioner, a motion in arrest' of judgment, upon the ground that the petition was not filed within the time prescribed by the statute, cannot be sustained, if the record fails to show affirma- tively that the petition was filed too late. Sawyer v. Boston, 144 Mass. 470 (1887). PARTIES TO ACTIONS. As to parties in equity, see Equity Plead- ing, I. Where chose in action is assigned, see Assignment. On contract of insurance, see Insurance. See also Action ; Amendment; Attach- ment; Bills and Notes, IX. pi. 10 ; Car- rier, v. ; Corporation, VIII. pi. 1; Insol- vent Debtor, IV. pi. 4. 1. If A., having a contract with B. for the delivery of certain goods, gives him a written order to deliver the goods to C, which order B. accepts, C. cannot maintain an action on the contract against B., in the absence of evi- dence that there was a good consideration therefor between the parties to the action. Rogers v. Union Stone Co., 130 Mass. 581 (1881); Morse v. Adams, 130 Mass. 585, note (1881). 2. If A., who owes C, and to whom B. is indebted in an equal amount, gives C. a writ- ten order on B. for the amount, and B. does 751 PARTIES TO ACTIONS. 752" not accept the order, but orally promises to pay the amount to C., of which promise A. has no notice, C. cannot maintain an action for money had and received against B. Cle- ment V. Sarle, 130 Mass. 585 note (1881). 3. A., as agent for the owners of a vessel, signed a charter-party, which purported to be made by the owners and not by A. Held, that A. could not sue upon it, the covenants or promise not running to him. Terry v. Brightman, 132 Mass. 318 (1882). 4. An agreement made by all the owners of a vessel jointly with one of their own number cannot be enforced at law. Terry v. Bright- man, 132 Mass. 318 (1882). 5. A. owed a debt to B., which B. had as- signed to C. D. , who had attached the debt, agreed that the amount thereof might be paid by A. to C. C, by mistake, demanded and received of A. part only of the debt, and A. thereupon paid the balance to D. Held, that C. could not maintain an action against D. for this balance as for' money had and re- ceived. Butler V. Frank, 128 Mass. 29 (1879), 6. A part owner of a vessel cannot main- tain replevin for his undivided part, although he owns a major interest in the vessel. Hack- ett v. Potter, 131 Mass. 50 (1881). 7. A., the owner of a parcel of land, leased it to a religious corporation. Afterwards some of the members of the corporation with- drew therefrom, and formed an unincorporated society, two of whom and A., without author- ity from the corporation, signed a cancella- tion on the back of the lease. After this, the unincorporated society made a verbal agree- ment with A., by which, on payment of a sum of money and delivery of certain notes, he agreed to sell them the church building on the land, and he went with a committee of the society to the building, and, putting his hand upon it, said it was theirs. Subse- quently certain members of the corporation to which the land was leased broke the lock upon the building, and entered the same, A. being present. The unincorporated society thereupon sued A. in trespass and for a con- version of the building. Held, that the plain- tiffs had no such title in the building as to give them a right of action. Payne v. Davis, 128 Mass. 383 (1880). 8. A mortgagor of land, who has consented, without consideration, that the mortgagee might bring an action at law against one who, by the terms of a deed from the mortgagor, is bound to pay the mortgage, may withdraw his consent, and compel the dismissal of the action. Coffin v. Adams, 131 Mass. 133 (1881). 9. If a person makes deposits on two sepa- rate accounts at a savings bank in trust for two of his children, the claims of the children against the bank after his death are several, and not joint, and cannot be united in one action ; and the fact that the bank, at the trial, made no objection to the joint action, cannot enable this court to enter a judgment which the law does not warrant. Ellison v. New Bedford Savings Bank, 130 Mass. 48 (1880). 10. If two persons, as copartners, make a special contract to do work for another, they must join as plaintiffs in an action for the money due thereunder, although the partner- ship is dissolved before the work is completed. Fish V. Gates, 133 Mass. 441 (1882). 11. A deed conveyed land to A., B., and C. in the following proportions, namely, one half to A. and the other half to B. and C., and the habendum was in the same form. The deed also stated that the land was subject to a mort- gage which " the said grantees are to assume and pay." For a breach of this agreement, A., B., and C. were sued jointly, and de- murred, on the ground that they should have been sued severally. Held, that the demurrer was rightly overruled. Fenton v. Lord, 128 Mass. 466 (1880). 12. If two parties to a written contract, whose liability is several, are joined as de- fendants in one action thereon, under Gen. Sts. c. 129, § 4, and one of them dies, his executor may be summoned in to defend. Colt V. Learned, 133 Mass. 409 (1882). 13. A. procured his buildings to be burned, and then assigned to B. his claim to the in- surance money, to whom, in ignorance of the facts, the company paid it, B. having no knowledge of the fraud. The company brought an action in the nature of assumpsit against A. and B. jointly. Held, that, even if the amount received by B. exceeded A.'s indebtedness to him, which indebtedness con- stituted the consideration for the assignment, the action was not maintainable against A. and B. jointly. Merchants' Ins. Co. v. Abbott, 131 Mass. 397 (1881). 14. If B. sells goods to A. by a conditional sale, and afterwards takes possession of them for an alleged breach of condition, and sells them to C, in whose possession they are when taken by A. , by a writ of replevin, the joinder of B. as a party defendant is wrongful. Swett V. Boyce, 134 Mass. 381 (1883). 15. If an action of replevin brought by A. against C. is submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on agreed facts, by which it appears that the property replevied belongs to A. and B. as copartners, the judgment should be aflftrmed, unless the plaintiff obtains leave to amend in the Superior Court by joining B. as a plaintiff. Fay v. Duggan, 135 Mass. 242 (1883) 16. A mortgagor of personal property, who ■ is rightfully in possession at the time when it is wrongfully attached, may maintain an ac- tion against the attaching officer, although the attachment constitutes a breach of a condi- tion of the mortgage. Copp v. Williams, 135 Mass. 401 (1883). 17. If a chattel, while in the possession of a bailee for hire, is injured by the negligence of a third person, and is repaired by the bailor, and the cost of the repairs is charged to the bailee, at his request, the latter, although he has not paid such cost, may maintain^ an ac- tion of tort against the person causing the damage. Brewster v. Warner, 136 Mass. 57 (1883). 753 PARTIES TO ACTIONS. 754 18. A promise by A. to B. , who has assigned certain goods to A. , to pay the amount owed by B. to his employees for labor on the goods, ■will not render A. liable to an action of con- tract by one of such employees. Morrill v. Lane, 136 Mass. 93 (1883.) 19. If an agent at the time of the making of a contract discloses the name of his prin- cipal, and the contract is then made with the agent alone, the person making the contract cannot maintain an action upon it against the principal. Silver v. Jordan, 136 Mass. 319 (1884). 20. Where there is a joint conversion of personal property by several persons, the owner of the property may elect to sue some of them jointly, and, at the same time, may maintain another action against one of them separately. McAvoy v. Wright, 137 Mass. 207 (1884). 21. A husband and wife cannot be sued jointly on a contract made by her in the pros- ecution of a business carried on by her sepa- rately in this Commonwealth, no certificate having been filed by either as provided in the St. of 1862, c. 198; but each is sever- ally liable. Midley v. Knox, 138 Mass. 83 (1884). 22. A policy of life insurance provided that, if assigned, written notice should be given to the insurer. An assignment was made, notice was given, and the insurer acknowledged notice thereof. Held, that this did not amount to a promise, on the part of the insurer, to pay the assignee; and that he could not main- tain an action on the policy in his own name. Pierce v. Charter Oak Ins. Co., 138 Mass. 151 (1884). 23. If A., his minor son, whom he had emancipated, and B. execute a written agree- ment for the employment of the son during his minority by B., the emancipation of the son is no defence to an action by A. against B. on the agreements made by B. with A. Dickinson v. Talmage, 138 Mass. 249 (1885). 24. Section 18 of the Pub. Sts. c. 126, giv- ing a right of action against the grantor in a deed to an assignee of the grantee, for breach of a covenant against incumbrances, where the incumbrance " appears of record," applies only where the incumbrance is of record in the registry of deeds; and a lien for unpaid taxes which only appears in the records of a city or town is not within the statute. Carter v. Peak, 138 Mass. 439 (1885). 25. If an owner of land dies after his land has been injured by the discontinuance of a way, his executor or administrator is the proper party to bring a petition for damages, under the Pub. Sts. c. 49, § 36. Webster v. Lowell, 139 Mass. 172 (1885). 26. If the members of a fire-engine company of a town take and detain, in order to keep it from the succeeding company, property used in furnishing the hall occupied by the com- pany, and for the general purposes of the com- pany, which has been bought from the general funds of the company, and has passed, from year to year, to the succeeding company, the members of the new company may maintain replevin for the property without a demand, although, at the time of the original taking, they had not been appointed enginemen. Bis- bee V. Fadden, 140 Mass. 6 (1885). 27. The St. of 1881, c. 110 (Pub. Sts. c. 49, § 110), allowing mortgagors and mortgagees, when mortgaged land is taken for public uses, to join in a petition for damages, is remedial in its character, and applies to proceedings begun after it took effect, although the land was previously taken. Woody. Weatboro'ugh, 140 Mass. 403 (1886). 28. The declaration in an action by a corpo- ration alleged that certain persons agreed to form a corporation under general laws, if they could obtain certain machinery from the de- fendant, and to build a factory for the manu- facture of certain goods; that such persons informed the defendant of the premises, and, in the name and for the benefit of the proposed corporation, applied to the defendant, who was a manufacturer of the machinery desired, for such machinery, and informed the defend- ant that the proposed corporation would pro- ceed with its organization and would build a factory only in case a contract could be made with the defendant for the machinery; that thereupon the defendant made two contracts in writing, one of which was under seal, to furnish the corporation with the machinery upon certain specified terms ; that afterwards, in anticipation of the defendant's fulfilling his agreement a factory was built for the corpo- ration; that said machinery could not be pro- cured otherwise than from the defendant, which he well knew ; that the persons named, in behalf of the proposed corporation, before its organization was completed, were always ready to receive and pay for said machinery, and frequently demanded the same, but the defendant neglected and refused to furnish said machinery or any part thereof; and that said corporation was now duly organized and existed under the general laws. Held, on de- murrer, that the declaration alleged a contract made before the plaintiff had a legal existence, and did not show any contract to which the plaintiff was a party; and that the action could not be maintained. Penn Match Co. v. Hapgood, 141 Mass. 145 (1886). 29. A. executed to B., " trustee for myself," a written assignment of all the money due A. on account of a certain deposit-book issued by a savings bank. B. brought an action against the bank to recover the balance of deposits made by A. The bank admitted the deposits and balance as alleged, and the assignment by A. to B. as trustee, and paid the money into court. Upon motion of the bank, the administrator of A.'s estate was summoned in and admitted as claimant under the Pub. Sts. c. 116, § 31. He denied the validity of the assignment, set up that it was in trust, and claimed the money. Held, that the adminis- trator of A. 's estate was rightly admitted as claimant; that the controversy between him and B. could be decided in this proceeding; and that the bank was entitled to be dis- charged. Underwood v. Boston Five Cents Savings Bank, 141 Mass. 305 (1886). 755 PAETNERSHIP. 756 30. A. employed B. to sell his goods at prices not less than minimum prices, so called. B. sold goods to C. , -who knew of the limita- tions of B.'s authority, upon an agreement that he should settle with him for the goods at prices less than those limited. B. then sent an order for the goods to A., with the minimum prices mai-ked thereon. A., who was ignorant of the agreement between B. and C, delivered the goods to C. with a bill of parcels containing the minimum prices, at which also the goods were charged to C. on A.'s books; and C. made no objection to the bill. C. settled with B. for the goods, accord- ing to their agreement, at less than the mini- mum prices; and B. reported to A. that he had received payment of the amount stated in the bill of parcels. A. credited C, and charged B., with this amount on his books; and A. never had a final settlement with B. Held, that A. could maintain an action of con- tract against C. for the difference between the amount of the bill of parcels and the amount paid by C. to B.; and that A. had not, by novation, accepted B. as his creditor. Rogers V. Holden, 142 Mass. 196 (1886). PARTITION. As to division of flats, see Flats. See also Personal Property. 1. A refusal of the Superior Court to confirm and to render judgment upon the report of commissioners appointed to make partition, is an interlocutory, and not a final decision, and exceptions thereto are prematurely entered in this court. Boyce v. Wheeler, 133 Mass. 554 (1882). 2. Under the Gen. Sts. c. 136, a tenant in common of land, who has erected a house upon the land without the knowledge or con- sent of his cotenant, is not entitled to have partition made of the land without the house, and to have that part of the land on which the house stands set off to him. Husband v. Aldrich, 135 Mass. 317 (1883). 3. This court has no jurisdiction in equity to order partition of land between tenants in common. Husband v. Aldrich, 135 Mass. 317 (1883). 4. Judgment was rendered upon the report of commissioners on a petition for partition of land, that their report be accepted and "partition be made firm and effectual for- ever ; " and it was further ordered that the case be "continued nisi upon the question of costs." Before any adjudication upon this question, the petitioner died, and his adminis- trator was admitted by the court to prosecute the case. Held, that the administrator was erroneously adniitted to prosecute; and that costs could not be awarded against the re- spondent. Richards v. Richards, 136 Mass. 126 (1883). 5. A testator by his will devised certain real estate to his children and grandchildren, as tenants in common, expressed his desire that the property should be kept in common, undivided, and gave the executors of his will power to seU the shares of the grandchildren under age. By a codicil to his will, made several years afterwards, he recited that it was necessary for him to enlai-ge the power to make sales given to his executors by his will; and that, in order to avoid the expense and labor of a partition among his devisees, he gave to his executors full power to sell said real estate without the consent, conveyance, or signature of his children and grandchildren ; and devised said real estate to his executors, ' or such of them as from time to time might be in the United States, in trust to sell the same, to collect the rents, and out of them to pay the taxes, to enclose the lands with fences, to fill up the lots, and, until sold, to open streets to prepare the lands for sale, and to divide the net proceeds of sales among his childi-en and gi-andchildren, according to their respective interests " which in my said origi- nal will I have devised to them." Held, that by the codicil the legal estate in the lands was vested in the executors ; and that a partition could not be granted, although all the parties in interest desired it. Gerard v. Buckley, 137 Mass. 475 (1884). 6. A tenant in fee simple of land, subject to the life estate which the widow of an intes- tate, without issue, has, under the Gen. Sts. c. 90, § 15, in an undivided half thereof, may maintain a petition for partition against the widow, as to so much of his interest as he has in possession ; and the court may, under the Pub. Sts. c. 178, § 65, order the land to be sold. Allen v. Libbey, 140 Mass. 82 (1885). 7. The respondent in a petition for parti". tion of land, who does not object to an inter- locutory judgment for partition, cannot, at a hearing upon the motion to confirm the com- missioners' report, set up want of title in the petitioner as a bar to the petition. Mount Hope Iron Co. v. Dearden, 140 Mass. 430 (1886). 8. Commissioners appointed to make par- tition of land may assign to the petitioner all the right in a passageway theretofore appur- tenant to the whole estate, " to become exclu- sively appurtenant to the share set off to the petitioner," the way being upon other land of the petitioner, and the parcel set off to the respondent being separated from it by that set off to the petitioner. Mount Hope Iron Co. v. Dearden, 140 Mass. 430 (1886). PARTITION WALL. See Party Wall. PARTNERSHIP. I. In General. II. Power of each Partner to bind the Firm. Ill Limited Partnerships. 757 PARTNERSHIP, L, II. 758 IV. Rights and Eemedies between Part- ners; BEFORE AND AFTER DISSOLU- TION. V. Suits by and against Partners. VI. Dissolution; Rights and Liabilities afterwards. For a case holding that successive carriers were not partners, and could not be sued jointly, see Carrier, V. For a case recognizing the validity of a foreign judgment against general partners, a special partner not having been joined, see Conflict of Laws, pi. 9. For a case asserting the unconstitutionality of St. 1878, c. 275, extending to copartner- ships, etc., the provisions of St. 1865, c. 283, which authorized the levy of an excise on cor- porate franchises, see Constitutional Law, HI. pi. 3. For a case involving the liability of a part- ner to a third person arising out of a trans- action of which such partner had no knowl- edge, see Specific Performance, pi. 4. As to when, after a dissolution, all the partners must be made parties to a suit in equity, see Equity Pleading, I. pi. 1. As to the liability of retiring partner for a tax, see Tax. See also Limitation, II. pi. 5; Tax, I. pi. 22; Trust. I. In General. 1. Entries in the books of a partnership are not evidence against any one to show that he is a member of the partnership. Abbott v. Pearson, 130 Mass. 191 (1881). 2. If A. agrees with B. to furnish a stock of goods, and to pay B. for selling them a sum equal to a certain part of the net profits, the goods to remain the exclusive property of A., and B. to have no interest therein, A. and B. are not partners; and, in an action by A. against an officer, who attaches the goods as the property of B. on a writ in favor of a pri- vate creditor of B. whose debt was contracted before the agreement, A. is not estopped to show that he and B. are not partners by the fact that the goods are bought in the name of A. and B. Partridge v. Kingman, 130 Mass. 476 (1881), 8. A written agreement stated that A. and B. had entered into a partnership, and had agreed to employ C. as treasurer, who was to receive for his services as such "ten per cent on the business; " that C. was to be allowed to furnish capital for the firm ; and that the pi'oflts and losses were to be divided among all of them. On a bill in equity brought by A. and B. against C. to settle the affairs of the partnership, it was found as a fact that the three parties were partners. Held, that " ten per cent on the business " meant ten per cent of the profits of the business. Funck v. Has- kell, 132 Mass. 580 (1882). 4. If two persons enter into an arrange- ment, by which one is to furnish a yard and put it in order for manufacturing bricks, and the other is to furnish the materials and labor for making the bricks, which are to be divided between them when made, but there is no agreement to share the profits and losses of the business, they do not become partners even as to third persons, they not having held them- selves out as partners. La Mont v. Fullam, 133 Mass. 583 (1883). 5. A partnership formed in this Common- wealth with transferable shares is legal. Phil- lips V. Blatchford, 137 Mass. 510 (1884). 6. Under the Pub. Sts. c. 147, § 2, a hus- band and wife cannot enter into a contract of partnership ; and she is not liable for the rent of a store hired by him in the name of himself and wife as partners. Bowker v. Bradford, 140 Mass. 521 (1886). 7. A. and B. began negotiations in refer- ence to the formation of a partnership be- tween them for carrying on a certain business, which was then being prosecuted by B. No agreement to form a present partnership was arrived at, but A. agreed to lend money to B. from time to time to use in the business, taking promissory notes therefor; and the parties further agreed, that if, after further examination, A. should conclude to become a partner in the business, he should have the right to do so, and sliould be admitted as an equal partner with B. , with a right to share the profits from a day named, and that the sums for which the notes were given should in such case be considered as contributions to the capital of the firm. A. accordingly lent certain sums of money to B.j who gave him promissory notes for the same, and used the money in the business. About two years afterwards, A., on inspection of B.'s books, found that B. had credited A. with interest upon the money so lent, and had not credited him with any profits. A. then told B. that he was a partner with him in the business, and should be credited with one half of the profits from the day named in their agreement, and should not be credited with interest upon the notes; but B. made no change in his books, and did nothing to admit A. as a partner. The following year A. discovered that he had again been credited with interest, instead of a share of the profits, and repeated to B. his statement of the preceding year ; thereupon a controversy arose between the parties, during which no change was made in the books or in the conduct of the business by B. B. did not in fact intend to carry out his original under- standing with A., and never admitted the right of A. to become an equal partner with him. A. thereupon brought an action against B. upon the notes. Held, that the judge, who tried the case without a jury, was justi- fied in finding that no partnership was ever formed between the parties ; and that the ac- tion could be maintained. Morrill v. Spurr, 143 Mass. 257 (1887). II. Power op each Partner to bind the Firm. 1. A member of the firm of B. & Co., a commercial firm, made a promissory note isx 759 PARTNERSHIP, III., IV. 760 the firm name, payable to the order of W. & Co., and gave it to W., a member of both firms, who indorsed the firm name of W. & Co. upon it in fraud of that firm, and nego- tiated it. Held, in an action upon the note against the members of the firm of W. & Co. , that there was nothing upon the face of the note, which, as matter of law, was conclusive notice to the plaintifE that the indorsement of W. & Co. was invalid, or that their indorse- ment was for the accommodation of B. & Co., although the plaintifE knew that W. was a member of both firms; held, also, that it was immaterial that the articles of copartnership of W. & Co. contained restrictions against the indorsement of notes by one partner without the consent of the others, or that, in fact, the copartnership, at the time of the indorsement, was dissolved, the plaintiff having no notice, actual or constructive, of the restriction or the dissolution. Stimson v. Whitney, 130 Mass. 591 (1881). 2. Under Gen. Sts. c. 129, § 77, providing that in a libel suit evidence of the truth of the matter charged as libellous shall be deemed a justification, " unless malicious intention sliall be proved," all of the partners owning a newspaper are responsible for a libel published by the express malice of one of them. Loihrop V. Adams, 133 Mass. 471 (1882). m. Limited Partnerships. 1. A special partner in a firm, who is a party to a transfer of all the assets of his firm to one creditor for the benefit of the creditors of the firm, becomes liable to such creditors as a general partner, under Gen. Sts. c. 55, § 7. Farnsworth v. Boardman,\Z\ Mass. 115(1881). 2. If a person makes, in behalf of a limited partnership of which he is a member, a valid contract of insurance, in an action upon the policy of insurance evidence is inadmissible to show that the members of the partnership have not complied with the requirements of the Pub. Sts. c. 75, §§ 4, 12, and have so transacted their business as to become liable as general partners to third persons. Clement V. British American Assurance Co., 141 Mass. 298 (1886). IV. Rights and Remedies between Part- ners; BEFORE AND AFTER DISSOLU- TION. 1. The fact that one partner deposits, in his own name, in a bank the funds of the firm and his own funds, and draws checks thereon in payment of his private debts and the firm debts, does not preclude a finding that he is entitled to interest on money advanced by him for the use of the firm, in the absence of evi- dence that the firm was injured by his manner of depositing money. Baker v. Mayo, 129 Mass. 517 (1880). 2. A partner whose firm is indebted to him for advances is entitled to charge the amount paid by him as discount on notes payable to the firm, and is not chargeable with the amount of a premium received by him on a draft pay- able in gold, if he has credited the firm with all he received on the draft. Fletcher v. Reed 131 Mass. 312 (1881). ' 3. A partner of a firm formed for an in- definite time may withdraw when he pleases, and dissolve the partnership, if he acts with- out any fraudulent purpose; and he is not liable to his copartner for damages caused by such withdrawal. Fletcher v. Reed, 131 Mass. 812 (1881). 4. If a member of a copartnership, the ar- ticles of which provide that each partner is to give his time to the business of the firm, and is not to engage in any other speculation or business in his own name and on his own account to the detriment of the firm, uses his time, and labor and materials belonging to the firm, in making improvements in ma- chines manufactured and sold by the fiim, with the knowledge and without the objection of the other partners, they can claim no in- terest in letters patent procured by him, at his expense and in his name, for such im- provements. Belcher v. Whittemore, 134 Mass. 330 (1883). 5. If B. agrees to cultivate A.'s farm for a year, and before the end of the year A. orders B. off the farm and leases it to a third person, B. may at once maintain an action at law for breach of the contract. If the contract can be construed as creating a partnership, the rule that no action at law can be maintained be- fore a winding up has no application, the cause of action being the complete repudiation of the contract,- and there being neither joint debts nor complicated accounts, and the ease being simply that of a contract broken after part performance by the plaintifE. Jewett v. Brooks, 134 Mass. 505(1883). 6. A bill in equity may be maintained by the administrator of a deceased partner against the surviving partner, for a sale of letters pat- ent belonging to the partnership, and for an account of the profits received by the surviving partner from the use of the patent since the dissolution of the partnership. Freeman v. Freeman, 136 Mass. 260 (1884). 7. A partnership, with a capital stock di- vided into shares for which certificates were issued, was formed under a declaration of trust, containing the following provision : " The decease of a member of the association shall not work a dissolution of it, nor shall it entitle his legal representatives to an account, or to take any action in the courts or other- wise, against the association or the trustee, for such ; but they shall simply succeed to the right of the deceased to the certificate and the shares it represents, subject to this declaration of trust." Held, that the estate of a share- holder was liable to contribute to the other partners for the payment of debts incurred after his decease, and before his executor had done any act by which he became a partner in the testator's place. Phillips v. Blatchford, 137 Mass. 510 (1884). 8. A partneirship was formed under a decla- ration of trust, by the terms of which no member of it had, as such, any control over 761 PARTNERSHIP, Y. 762 the business, except through a board of mana- gers. A debt was incurred by the partner- ship, which one member paid, after he and the other members were sued by the creditor. Held, that the cause of action which such member had against the other members for contribution did not accrue before payment. Phillips V. Blatchford, 137 Mass. 510 (1884). 9. A debt to a firm composed of A. and B., by a partnership of which A. and C. are mem- bers, is not paid by A. by being charged to profit and loss on the boolcs of the firm, so as to give A. a claim for contribution against C. Phillips V. Blatchford, 137 Mass. 510 (1884). 10. If one partner pays a debt of the firm, he cannot maintain a bill in equity for contri- bution against the other partners. Phillips v. Blatchford, 137 Mass. 510 (1884). 11. A copartnership was formed between A., B., C, and D. under a verbal agreement, by which A. and B. were to furnish all the capital, the partners were to share equally the profits and losses, and interest was to be cred- ited or charged to the partners respectively on the yearly balances due to or from them. A. and B. advanced all the money used in the business; interest was charged and allowed on the different balances until the dissolution of the copartnership ; there were balances due to A. and B. for money paid in by them, and balances due from C. and D. for money drawn out by them in excess of their share of the profits and of the moneys paid in by A. and B. ; annual balances were struck, the last one before the dissolution being the same as at the time of the dissolution ; and C. and D. had the books in their keeping, and had full knowledge of their contents and the state of the accounts. Held, on a bill in equity for a settlement of the partnership account, that the parties intended that interest should continue on the balances until they were settled, with- out regard to the dissolution of the copartner- ship. Bradley v. Brigham, 187 Mass. 545 (1884). 12. A surviving partner, who has bought all the assets of the partnership except letters patent for a product, and who uses the patent in the manufacture of such product, against the objection of the administrator of the estate of the deceased partner, is liable, upon a bill in equity by the administrator for an account, for one half of the profits of the manufacture and sale of such article, less all costs and ex- penses incurred therein by the surviving part- ner, and a fair allowance for manufacturer's profits ; but the administrator is not entitled to interest, except from the date of filing his bill. Freeman v. Freeman, 142 Mass. 98 (1886). V. Suits by and against Partners. 1. Gen. Sts. o. 123, §§ 87, 88, providing that personal property which has been at- tached in a suit against one part owner, shall, at the request of the other part owners, be appraised and delivered to him upon his giv- ing bond to the attaching officer, do not apply to an attachment of partnership property in an action against one partner. Breck v. Blair, 129 Mass. 127 (1880). 2. In an action against two persons as partners on a promissory note signed by one of them in the firm name, a verdict may properly be returned against both jointly, if it appears that the one who signed was an agent with authority to sign the note, and held himself out to the payee of the note as a partner, and that the other defendant was the only member of the firm. Nichols v. James, 130 Mass. 589 (1881). 3. The seizure and actual removal of specific chattels of a pai'tnership, on mesne process against one member thereof for his private debt, and the exclusion of the firm from the possession of the property, are a trespass, for which an action against the officer may be maintained by the members of the firm. San- born V. Royce, 132 Mass. 594 (1882) ; Crawford V. Capen, 132 Mass. 596, note (1882). 4. If two persons, as copai-tners, make a special contract to do work for another, they must join as plaintiffs in an action for the money due thereunder, although the partner- ship is dissolved before the work is completed. Fish V. Gates, 133 Mass. 441 (1882). 5. If a person having a claim against a partnership takes in payment a promissory note of the successors of the firm, without knowledge that the old firm had been dis- solved, and supposing that the note was that of the old firm, he may maintain an action on the debt, without showing that he was fraud- ulently induced to take the note. Buxton v. Edwards, 134 Mass. 567 (1883). 6. In an action on a debt due from a part- nership, to which the defence is payment by a promissory note of the successors in business of the old firm, the plaintiif may put in evi- dence what was said when the note was given ; and, if it appears that he has offered proof of the note against the insolvent estate of the new firm and has withdrawn the proof, evi- dence is competent, on the issue whether he had knowledge or notice of the dissolution of the old firm, that he supposed when he proved the note that it was the old firm that had gone into insolvency. Buxton v. Edwards, 134 Mass. 567 (1883). 7. If a married woman lends money out of her separate estate to a partnership, of which her husband is a member, and on the dissolu- tion of which it is agreed between the part- ners that the partner other than the husband shall take the assets of the firm, and pay all the liabilities and indemnify his partner against them, but no promise is made by the other partner to pay the debt to the wife, no trust is impressed upon the money so lent by her; and she cannot maintain a bill in equity against the two partners for the payment of the same. Fowle v. Torrey, 135 Mass. 87 (1883). 8. In an action of replevin against an oflB- cer, who has attached partnership property on a writ against one of two partners, both partners should join; and the non-joinder of res PARTNERSHIP, VI. 764 one may be pleaded in bar. Fay v. Duggan, 135 Mass. 242 (1883). 9. If a partnership so intrusts goods be- longing to it to an agent af? to enable him to deal with them as his own, a person who, in ignorance of his agency, buys such goods of him under an agreement by which they are to be paid for by accounting to a third per- son, is not liable to an action by the partner- ship for the price of the goods. Dean v. Plun- kett, 136 Mass. 195 (1884). 10. A partnership consisting of A. and his son was dissolved by the death of A. His son continued to carry on the business as surviving partner, and as administrator with the will annexed of his father's estate. Sub- sequently, the firm property was transferred to the widow and some of the next of kin of A., who appointed the son as their agent. He continued to carry on the business under the original firm name, and had entire charge and control of the business, but gave no no- tice of the new partnership. AVhile so act- ing as agent, he sold goods of the partnership to B., who agreed to pay for them by account- ing to C. therefor, to whom the estate of A. was indebted. After this contract was made, B. was informed of the fact of the existence of the new partnership. Held, that an action by this partnership against B., for the price of the goods, could not be maintained, al- though B. had not fully accounted to C. Dean v. Plunkett, 136 Mass. 195 (1884). 11. In an action against the members of a partnership upon a promissory note, and on an account annexed for goods sold and de- livered, if one of the issues is whether the plaintiff had notice of the dissolution of the partnership, a notice of such dissolution pub- lished in a newspaper is competent, in con- nection with other evidence tending to show that the plaintiff saw and read the notice. Smith V. Jackman, 138 Mass. 143 (1884). 12. If assets of a partnership are in the pos- session of one of the partners at his death, and are sold by the executor of his will for less than their value, and the amount received is accounted for as assets of the estate, the sur- viving partners, on a bill in equity against the executor in his capacity as executor, are only entitled to recover their proportion of the amount actually received, with interest. Bradley v. Brigham, 144 Mass. 181 (1887). VI. DissoLtTTiON; Rights and Liabili- ties AFTERWARDS. 1. If A. and B. enter into articles of part- nership, which provide that A. shall con- tribute the whole capital, and that the profits, after payment of the expenses, including rent of store, interest on the capital, and an annual salary to B., shall be divided equally between them, the capital becomes partnership prop- erty, the expense of insuring which is a part of the expenses of the business; and on a dis- solution of the partnership, A. is entitled to repayment of the capital contributed by him, before B. is entitled to receive anything as profits. Livingston v. Blanchard, 130 Mass. 341 (1881). 2. If, on the dissolution of a firm, one partner sells the partnership assets by public auction to a person who af terwai'ds, in pursu- ance of a secret arrangement made with him before the sale, reconveys them to him, he will be held in equity to account to the other part- ner as if no sale had been made, although such partner was present at the sale, and made a bid for the assets himself. Jones v. Dexter, 130 Mass. 380 (1881). 3. A partner, who has had the manage- ment of the business of the firm, and has never made a settlement with or rendered a final account to his copartner, and whose duty it is to wind up the affairs of the part- nership on its dissolution, is chargeable with interest, as between himself and nis copart- ner, on moneys drawn from the firm over and above what he was entitled to draw, on the amount of a debt incurred by a third person for which he was liable, and on his share of the net general loss upon the business, from a reasonable time after the firm is dissolved, or from such time as he has had the benefit of the sums withheld by him. Crabtree v. lian- dall, 133 Mass. 552 (1882). 4. One partner, after the dissolution of a partnership, has authority to adjust a claim upon the firm; and if the partner and the creditor account together, the presumption is that an account stated states the debt of the firm; and this presumption is not rebutted by evidence that the creditor had notice of the dissolution of the partnership. Buxton v. Edwards,. 134 Mass. 567 (1883). 5. Upon the retirement of a member of a partnership, whose name formed a part of the name under which the firm did business, he consented that the remaining partners should have the right to use the same name " under which to trade in future." Held, that this did not amount to a consent, within the Pub. Sts. c. 76, § 6, that a person who afterwards became a member of the firm might use the same name on his becoming the sole member. Lodge v. Weld, 139 Mass. 499 (1885). 6. The fact that an order for goods is sent to a firm, addressed by the name under which it is doing business, does not amount to the consent required by the Pub. Sts. c. 76, § 6. Lodge v. Weld, 139 Mass. 499 (1885). 7. If a member of a firm is appointed ex- ecutor of a deceased partner, his consent, in his personal capacity, that the name of the deceased partner may be used by the succes- sors in business of the firm, is not sufficient, within the Pub. Sts. c. 76, § 6. Lodge v. Weld, 139 Mass. 499 (1885). 8. A child of a deceased member of a part- nership is not a "legal representative," with- in the meaning of the Pub. Sts. c. 76, § 6, whose consent in writing is required to author- ize the use of such deceased member's name by his successor in business ; and such child cannot maintain a bill in equity to restrain the unauthorized use of his father's name in the business. Lodge v. Weld, 139 Mass. 499 (1885). 765 PATENT. 766 9. A firm doing business under the name of the S. Company, B., Agent, sold their business, and dissolved their firm, publishing notice of the dissolution in a newspaper. The business was subsequently carried on under the same name as before. A customer of the old firm sold and delivered goods to the S. Company after the change. Held, in an ac- tion by him against the members of the old firm for the price of the goods, that he could recover, if he sold the goods, without notice of the dissolution, relying on the responsibil- ity of the members of the old firm, although at the time of the dissolution the firm was not indebted to him. Elkinton v. Booth, 143 Mass. 479 (1887). PART OWNERS. See Paktneeship, V. pi. 1 ; Ship. 3. If A. is informed by B., who owns land adjoining that of A., that B, proposes to erect a wall on his own land at his own expense, and A. assents that the wall shall be built ac- cording to the line of B.'s land as established by the survey of C, A. is not estopped to maintain a writ of entry against B., after the wall has been built, for land erroneously in- cluded in such survey, if, in assenting to the building of the wall, he acted under a mistake of fact, and not with intent to mislead B. Proclor V. Putnam Machine Co., 137 Mass. 159 (1881). 4. The Prov. St. of 1692-93 (5 W. & M.), c. 13, § 2, providing that any one building on his own land in Boston might set half his partition wall on his neighbor's land, and that the neighbor, when he should build, should pay for half of so much of the wall as he should build against, has never been in force in this Commonwealth. Willcins v. Jeweit, 139 Mass. 29 (1885). PARTY WALL. 1. It seems, that the provision of the laws of the Colony and Province, that any one building on his own land in Boston might set half his partition wall on his neighbor's land, and that the neighbor, when he should build, should pay for half of so much of the wall as he should build against, is still in force. Quinn v. Morse, 130 Mass. 317 (1881). 2. A. owned two lots of land, one of which was occupied by him as a homestead, and was covered by a building several stories high ex- cept for a space of seventeen feet in the rear, where it was but one story high, and the other was vacant except that it had on it one half the side wall of the building. A. agreed to sell the vacant lot to B., the latter to pay what arbitrators should determine the wall on the land sold was worth "in building a store;" and it was further agreed that B. might build a "partition wall" in the rear of A.'s homestead lot, one half on A.'s land, for the use of both parties in common. B. assigned this agreement to C, to whom A. conveyed the vacant lot by a deed in which the boundary line between this lot and the homestead lot was described as running ' ' through the centre of the brick partition wall." C. afterwards became the owner of the lot in the rear of A.'s homestead lot. The value of the side wall on C.'s land was appraised by arbitrators, who in their award described it as " the party wall owned by A. and C, assignee of an agreement made be- tween A. and B." The sum appraised was paid by C. to A., and A. executed to him a formal release in full for the wall and all walls mentioned in the agreement. Held, that the effect of these agreements was to make both the side wall and the rear wall party walls, upon which C. might build, pla- cing one half the wall upon the land of A. Quinn ^. Morse, 130 Mass. 317 (1881). PASSENGER. See Cakkiee, VII. ; Railroad. PATENT. See Equity, II. pi. 4, 5, VI. 9. As to the impossibility of reaching a patent right by process of equitable attachment, see Equity, IV., pi. 1. See also Paktnbrship, IV. pi. 6, 12. 1. A bill in equity may be maintained by the administrator of a deceased partner against the surviving partner, for a sale of letters pa- tent belonging to the partnership, and for an account of the profits received by the surviving partner from the use of the patent since the dissolution of the partnership. Freeman v. Freeman, 136 Mass. 260 (1884). 2. A surviving partner, who has bought all the assets of the partnership except letters patent for a product, and who uses the patent in the manufacture of such product, against the objection of the administrator of the estate of the deceased partner, is liable upon a bill in equity by the administrator for an account, for one half of the profits of the manufacture and sale of such article, less all costs and ex- penses incurred therein by the surviving part- ner, and a fair allowance for manufacturer's profits; but the administrator is not entitled to interest, except from the date of filhig his bill. Freeman v. Freeman, 142 Mass. 98 (1886). 3. Letters patent of the United States, owned by an insolvent debtor, pass to the as- signee in insolvency of his estate by an assign- ment of the estate under the Pub. Sts. c. 137, § 46 ; and the assignee may maintain a bill in equity against the insolvent debtor to compel him to assign such letters patent. Barton v. White, 144 Mass. 281 (18S7). 767 PAUPER, I., II. 768 4. It is within the constitutional power of the Legislature to enact a statute which has the effect to pass a title to letters patent of the United States. Barton v. White, 144 Mass. 281 (1887). PAUPER; POOR LAWS: SETTLE- MENT. I. What constithtes a Pauper. II. Settlement of Pauper; how ac- quired OR LOST. III. Actions for supporting Paupers. As to the constitutionality of St. 1878, c. 190, declaring that the words "any wo- man," in St. 1874, c. 274, § 2, should apply to married women, see Constitutional Law, II. (e). See also Amendment, pi. 6. I. What constitutes a Pauper. 1. A man is under no legal obligation to support his step-child; and the fact that such child receives aid from a town as a pauper, upon the application of the step-father, will not make the latter a pauper. Brookfield v. Warren, 128 Mass. 287 (1880). 2. The St. of 1881, c. 188, which provides that no person actually supporting himself and his family shall be deemed a pauper, because of the commitment of his wife or minor child to a lunatic hospital, etc., and his inability to maintain them therein, is prospective only in its operation. Worcester v. Barre, 138 Mass. 101 (1884). 3. S., an insanewoman, havingno property, had been supported for several years by her brother and her sister C, who owned and carried on a sifllhfarm as tenants in common, keeping a common purse, and maintaining S. as one of the family. The brother, without the knowledge of his sister C, stated to the overseers of the poor of the town that he was unable and unwilling to support S. longer, and made application for aid in supporting her. Thereupon the overseers arranged with the brother to pay him a certain sum a month on account of her support, she to live and be supported in the family as formerly. This was done without the knowledge of C. ; and C. would have supported S. without aid from the town, if she had known that application for aid was to be made. Held, in an action by the town furnishing the relief against the town where S. had her settlement, that the presiding judge, who tried the case without a jury, was justified in finding that, at the time the aid was furnished, S. was not " in need of immediate relief," within the meaning of the Pub. Sts. c. 84, § 14. Templeton v. Winchen- don, 138 Mass. 109 (1884). 4. While the St. of 1878, o. 282, providing for " additional pay to poor and indigent sol- diers," was in force, it did not prevent the wife and minor children of such a soldier from receiving relief as paupers, even if it had such effect as to him. Granville v. Southampton, 138 Mass. 256 (1885). II. Settlement of Pauper; how acquired or lost. 1. Under St. 1878, c. 190, § 1, cl. 10, pro- viding that any person "duly enlisted and mustered " into the military service of the United States, as part of the quota of a city or town, under any call of the President dur- ing the late civil war, and who fulfils the other requirements of that act, shall be deemed to have acquired a settlement in such city or town, the fact that a person has been enlisted and mustered by a false name does not pre- vent his acquiring a settlement; and, in an action by one town against another for his support as a pauper, his identity may be shown by parol evidence. Milford v. Uxbridge, 130 Mass. 107 (1881). 2. St. 1874, c. 274, does not give a settle- ment to a person who voluntarily ceased to be a re-sident of the Commonwealth twenty years before it was enacted; nor by derivation to the son of such person, the son not having re- sided in the Commonwealth within seventeen years before, nor at any time since the enact- ment ; nor by derivation to the wife of such son, who resides in, and after the enactment becomes a pauper within, the Commonwealth. Fitchburg v. Athol, 130 Mass. 370 (1881). a. St. 1871, c. 379, § 1, in amendment of St. 1868, c. 328, does not give a settlement by derivation to the child of an unsettled per- son who died before its passage. Taunton v. Boston, 131 Mass. 18 (1881). 4. In an action by one town against another for the support of a pauper, it appeared that the pauper had no settlement in this Com- monwealth, except one acquired under St. 1874, c. 274; that prior to 1865, beingtwenty- one years of age, he resided five years in the town of G., and paid the taxes assessed oti him for three years within that time; that in 1865 he removed to the town of A., and con- tinued to reside there for five years, and paid taxes assessed upon him for three years within that time; and that he had since then gained no settlement elsewhere. Held, upon these facts, that the pauper acquired a settlement in G., under St. 1874, c. 274, and that the town of A. was not liable for his support. [Field, J, dissenting.] Fitchhurg \. Ashhy, 132 Mass. 495 (1882). 5. A man was mustered into the military service of the United States during the civil war as part of the quota of a town in this Commonwealth; and became a deserter from such service with no intention of returning thereto. Subsequently he surrendered himself as a deserter under a proclamation of the President of the United States, and was honorably discharged as a surrendered de- serter. Held, on the issue whether he had " duly served " one year, within St. 1878, c. 190, § 1, cl. 10, so as to entitle him to a settle- ment in a town of whose quota he was a part, 769 PAUPER, II. 770 that the time he was absent as a deserter was to be excluded. Lunenburg v. Shirley, 132 Mass. 498 (1882). 6. A., having his settlement in the city of N., entered the naval service of the United States, as part of the quota of the town of W., in 1864, and served until September, 1886, when he was honorably discharged. His minor daughter was married in May, 1866. Held, in an action by the city of N. against the town of W. for aid furnished the daughter in 1879, as an insane pauper, that, under St. 1878, c. 190, § 1, cl. 10, A. had ac- quired a settlement in W. for himself, his wife, and his minor children, at the end of one year's service; and that the action could be maintained. JSfemhuryport v. Worthington, 132 Mass. 510 (1882). 7. A man, who, under St. of 1870, c. 392, § 8, acquired a settlement in a town in this Commonwealth, by serving in the quota of such town during the civil war for more than one year, may, under Gen. Sts. c. 69, § 1, cl. 12, gain a new settlement in another town, by residing there for ten years, and by paying for six years during that time taxes assessed upon his poll or estate. Boston v. Warwick, 132 Mass. 519 (1882). 8. In an action against the town of H. for aid furnished a female pauper in 1878 and 1879, it appeared that the husband of the pauper, an alien, being of age, lived in H. ten years, from 1836 to 1846, and paid taxes there for five years during that time; and died in 1872, never having been naturalized. Held, tl.at, under Gen. Sts. c. 69, § 1, cl. 1'2, and St. 1868, c. 328, as amended by St. 1871, c. 379, the husband of the pauper gained a settlement in H., and that the pauper gained a derivative settlement from him. Shutesbury v. Hadley, 133 Mass. 242 (1882). 9. Under the St. of 1878, c. 190, § 1, cl. 6, as amended by the St. of 1879, c. 242, an un- married woman, over twenty -one years of age, may acquire a settlement in a town in this Commonwealth by residing there for five con- secutive years without receiving relief as a pauper, although she had ceased to reside there before the enactment of the former statute. Dedham v. Milton, 136 Mass. 424 (1884). 10. Under the St. of 1874, c. 274, § 2, a widow may acquire a settlement in a town in this Commonwealth by residing therein for five consecutive years without receiving relief as a pauper. Cambridge v. Boston, 137 Mass. 152 (1884). _ 11. A militai-y settlement, gained by a per- son in a town in this Commonwealth, under the St. of 1878, c. 190, § 1, cl. 10, may be re- placed by a new military settlement gained by him in another town, under the same statute, although both settlements were acquired be- fore the passage of the statute. Granville v. Southampton, 138 Mass. 256 (1885). 12. A settlement may be acquired, under the Pub. Sts. o. 83, § 1, cl. 11, by reason of service in the navy of the United States as part of the quota of a town in this Common- wealth, although the person performing such service was, at the time of his enlistment, a SUPPLEMENT. — 25 resident of another town, notwithstanding the provision of the U. S. St. of July 4, 1864, § 8, that naval recruits are to be credited to the quota of the town " in which they respectively reside." Brockton v. Uxbridge, 138 Mass. 292 (1885). 13. The records of a town showed votes " to hire out F. and take his wages for to sup- port his family," and " to vendue the poor," followed by the record of the bidding off of F.'s children ; and to pay various bills for the support of him and them ; a vote, at a meeting held under a warrant " to see what the town will do with the town poor," that " the chil- dren of F. be sold to the lowest bidder," and that whatever it should cost to get them kept until they were twenty-one should be paid in one year; and also that "the rest of the town's poor that are not provided for be left to the care of the selectmen." Held, that these votes contained admissions that F. had his settlement in the town, and warranted a finding of such settlement. West Bridgewater Y. Wareham, 138 Mass. 305 (1885). 14. A person, who was assigned as part of the quota of a town in this Commonwealth, under the U. S. St. of July 4, 1864, § 8, al- though he was enlisted and mustered into the naval service of the United States several days before the beginning of the war of the Rebel- lion, was " duly assigned," within the meaning of the Pub. Sts. c. 83, § 1, cl. 11. Boston v. Mount Washington, 139 Mass. 15 (1885). 15. The words " any unsettled woman," in the St. of 1879, c. 242, § 2, mean a woman unsettled at the time the statute took effect. Worcester v. Great Barrington, 140 Mass. 243 (1885). 16. The provision of the St. of 1879, c.242, § 2, that a settlement, by a residence of five years in any place within this Commonwealth, shall be deemed to have been gained by any un;jettled woman upon the completion of such term of residence, " although the whole or a part of the same accrues before the passage of this act," does not, so far as it is retroactive, apply to a married woman whose husband had no settlement, and who, when the statute went into effect, had a derivative settlement from her father. Middleborough v. Plympton, 140 Mass. 325 (1885). 17. The provision of the Pub. Sts. c. 83, § 1, cl. 4, that " any person of the age of twenty- one years, having an estate of inheritance or freehold in any place within the State, and living on the same three years successively, shall thereby gain a settlement in such place," does not apply to a married woman. Spencer V. Leicester, 140 Mass. 224 (1885), 18. Neither at common law, nor under the Pub. Sts. c. 84, § 6, is a married woman, whose husband is living, under legal obliga- tion to support their children, even if the husband is imprisoned for crime ; and her right to acquire a settlement, under the Pub. Sts. c. 83, § 1, cl. 6, 7, by a residence of five years, is not taken away, under § 2, by her receiving money, during the five years, to be used for the board of her pauper child. Glea- son V. Boston, 144 Mass. 25 (1887). 771 PAUPER, m. 772 in. ACTIOKS FOR SUPPORTING PaUPERS. 1. On a complaint, under Gen. Sts. c. 70, § 5, by a town against a father for the sup- port of his adult pauper daughter, it may properly be found that he is of " sufficient ability" to contribute to such support, where the value of his entire property, above his debts, is between $5,000 and $6,000, notwith- standing he is in poor health, unable to do hard work, has a wife and infant child de- pendent upon him, and his income, although he has lived in a prudent manner, is, and has been for some years, less than his expenses. Templeton v. Stratton, 128 Mass. 137 (1880). 2. Under Gen. Sts. c. 70, the overseers of the poor of a town have authority to bind the town by a contract for support to be furnished in another town to a pauper whose settlement is in the former town, but who, at the time the contract for his support is made, is too ill to be removed to the town of his settlement. Aldrich v. Blackstone, 128 Mass. 148 (1880). 3. In an action by a city under Gen. Sts. c. 73, § 25, against a woman, to recover $479, paid for her support at a lunatic hospital, there was evidence that the defendant, when out of the hospital, lived with an intemper- ate husband and a lame daughter, neither of whom rendered her much assistance, and that the defendant's mental condition was such as to incapacitate her for any labor; that she owned a lot of land worth $375, which, after part of the money sued for had been paid by the plaintiff, she had conveyed to her daughter, without consideration; that, after this conveyance, she effected insurance on the house in her own name, and the attoi-ney of her guardian had received $775 from the in- surance company for the destruction of the same by fire, which sum was claimed by the daughter. Held, that this evidence would warrant a finding that the defendant was not "of sufficient ability" to pay the sums ex- pended by the plaintifi. Newton v. Feeley, 130 Mass. 12 (1880). 4. In an action by a town against another town for the support of a pauper, the defence was that the pauper had acquired a settlement in a third town by reason of his military ser- vice in the army of the United States as part of the quota of that town. The pauper testi- fied that he heard that he was drafted, and went into another State to avoid the draft, and there enlisted, but was not mustered into the service ; and that he then left that State, and enlisted and served as part of the quota of the town in question. Held, that this evi- dence did not show that he had been "proved guilty of wilful desertion," within the mean- ing of St. 1878, c. 190, § 1, cl. 10. Milford v. Uxhridge, 130 Mass. 107 (1881). 5. In an action by one town against another for the support of a female pauper, the agreed facts on which the case was submitted stated that the pauper contracted a valid marriage with a pei'soa in a town in another State, where they both resided, and they lived there as husband and wife for three years, when he left his home and family, and had not been heard from by h^r since; that, in the next month after he left her, she removed to the defendant town, where, five years and eight months afterwards, she married a person who had a legail settlement therein, and they lived together as husband and wife in the plaintiff town, where he soon after deserted her and removed out of the Commonwealth. Held, that the agreed facts did not warrant a find- ing that the pauper's first husband was dead when she contracted her second marriage. Hyde Park v. Canton, 130 Mass. 505 (1881). 6. Under Gen. Sts. c. 70, §§ 17, 18, if the overseers of a town, when notified that a per- son, whose settlement is supposed to he in that town, has become chargeable to the town sending the notice, and a request is made that he be removed, neglect in their answer to deny that the pauper has his settlement in their town, the town, in an action for the expenses of his support, is estopped to deny the fact of settlement. Easton v. Wareham, 131 Mass. 10 (1881). 7. The overseers of a town sent a notice to the overseers of another town that a female pauper, wife of J. S., "whose settlement is in your town," had applied for relief, and re- questing that she be removed. The answer acknowleged the receipt of the notice "in regard to the circumstances " of the pauper; stated that, " under the circumstances," they declined to pay the bill; and added, that the woman, when married to J. S., was insane, and an inmate of the almshouse of the town sending the notice, and that the marriage was for the purpose of making their town re- sponsible. Held, that the answer did not deny the settlement of the pauper's husband. Easton v. Wareham, 131 Mass. 10 (1881). 8. Under Gen. Sts. c. 73, § 25, a town, which has paid for the support at a State hospital of an infant lunatic, whose father has a legal settlement in such town, may maintain an action at law against the father for the amount so paid. Arlington v. Lyons, 131 Mass. 328 (1881). 9. In an action by one town against another for the support of a female pauper, it appeared that, prior to St. 1874, c. 274, under which it was contended that she had acquired a settle- ment in the defendant town as an unmarried woman, she had resided there for five years without receiving aid as a pauper. There was evidence that she married a person thiity years ago and lived with him in the defendant town about three months, and he then went to another State and died ; but there was no evidence of the time of his death. Held, that the action could not be maintained. Uxbridge V. Northbridge, 131 Mass. 454 (1881). 10. In an action by the town of S. against the town of H. for the support of a female pauper, whose settlement through her hus- band was alleged to be in H., it appeared that the town of A. bad previously sued the town of S. for the support of the same pauper; that in that action S. set up in its answer that the pauper's husband had his settlement in H.; that the question of his settlement was the only question in issue in that action; that, on 773 PAUPER, III. 774 filing the answer, -H. was requested by A. to assume the prosecution of the action, and did 60, and that A. obtained a judgment, which was satisfied by S. Held, that these facts did not estop S. from raising the question of the husband's settlement in the present action. ShuteKbury v. Hadley, 133 Mass. 242 (1882). 11. In an action by one town against an- other for the support of a female pauper, the main issue was whether the pauper's husband, who was an alien, and was assessed and paid taxes in the defendant town from 1837 to 1845, and resided there until April 1, 1846, was domiciled there on April 1, 1836. The plaintiff oflered in evidence a certified copy from the town clerk's records of another town, purporting to be the copy of a marriage cer- tificate made in April, 1837, certifying that the magistrate joined the pauper's husband and a former wife in marriage on May 24, 1836, and describing the husband as of the defendant town. The plaintiff also intro- duced evidence that the husband had lived in the defendant town several months before his first marriage, but the witnesses were unable to fix the date of that marriage. The de- fendant admitted that the husband was mar- ried to his first wife on the day named in the certificate; but objected to the admissibility of the certificate to show that at that time the husband was a resident of the defendant town. But the judge admitted it as prima facie evidence that the husband's residence was in the defendant town on the day named, but not of his residence there before that date. Held, that the defendant had no ground of exception. Shutesbury v. Hadley, 133 Mass. 242 (1882). 12. A town which furnishes relief to a pauper having a settlement in another town may maintain an action against such town therefor, without waiting until it is deter- mined whether such pauper acquires a settle- ment in the plaintiff town by reimbursing the cost of such relief within five years from the time it is furnished, under the St. of 1879, c. 242, § 2. Dedham v. Milton, 136 Mass. 424 (1884). 13. A notice, given by one town to another, stated that " A. B. and family (wife and two children), whose legal settlement is in your town, but now residing in this town, being in needy circumstances," had applied for relief, which was furnished. A. B. had four chil- dren, but only two were living with him. Where the other two were did not appear. Held, that the notice sufficiently indicated the two children who were living with their parents. Granville v. Southampton, 138 Mass. 256 (1885). 14. After the passage of the St. of 1863, c. 254, § 8, which provides that a resident of one town enlisting in any other shall be counted in the quota of the town in which he is a resident until the quota of that town is filled. A., who resided in the town of G., en- listed as part of the quota of the town of S. Held, in an action by the town of G. against the town of S. for aid furnished A. as a pau- per, after the passage of the St. of 1878, c. 190, § 1, cl. 10, that the defendant was not entitled to a ruling that A. was counted on the quota of G. Granville v. Southampton, 138 Mass. 256 (1885). 15. In an action against the town of U. for supplies furnished to W., a pauper, who was alleged to have a settlement therein, under the Pub. Sts. 0. 83, § 1, cl. 11, the record of naval enlistments prepared by a commission appointed under the U. S. St. of July 4, 1864, § 8, and the report of the Adjutant General of Massachusetts relating to the matter, were put in evidence. Upon this list appeai'ed in print the name of W., the date and term of his enlistment, and the place of rendezvous, which was the name of a place in another State ; and opposite his name was written the name of the defendant town. A clerk in the office of the Adjutant General testified that this meant that W, was apportioned to that town; and that "rendezvous" meant the place where the naval recruit enlisted. A rule established by the above-named commis- sion, for the assignment to the quota, provided that only those were to be credited " who had joined the service at some rendezvous in this State." The record of enlistments above mentioned was prepared from the rolls of a, receiving-ship for naval recruits at a port in this State. Held, that this evidence would justify a finding that W. was duly assigned as part of the quota of U. Brockton v. Ox- bridge, 138 Mass. 292 (1885). 16. In an action against a town for supplies furnished to a pauper, who was alleged to have a settlement therein, under the Pub. Sts. c. 83, § 1, cl. 11, by reason of service in the navy of the United States as part of the quota of that town, the names of a pauper and of a naval recruit, the dates of joining the service, of the an-ival at the receiving- ship, and of the departure therefrom on duty, as they appeared on the records, and as testi- fied to by the pauper, corresponded. Held, that this would justify, a finding that the pau- per and the recruit were the same person. Brockton v. Uxbridge, 138 Mass. 292 (1885). 17. In an action against a town for supplies furnished to a pauper, who was alleged to have a settlement therein, under the Pub. Sts. c. 83, § 1, cl. 11, by reason of service in the navy of the United States as part of the quota of that town, the enlistment papers and muster roll, or authenticated copies of them, were not produced. Held, that testi- mony of the pauper that he was enlisted, the facts that his name was found on the rolls of a ship of war, that he was transferred from there on duty, that he performed various ser- vices described by him, and that his discharge showed that he had served for more than a year, would justify a finding that he was duly enlisted and mustered into the naval service of the United States. Brockton v. Uxbridge, 138 Mass. 292 (1885). 18. Underjthe Gen. Sts. c. Ill, § 16, an action upon an indenture, by the inspectors of a State almshouse, binding as an apprentice a State pauper, is barred, unless brought dur- ing the term of apprenticeship, or within two 775 PAYMENT. 776 years after the expiration thereof. Johnson v. Gibhs, 140 Mass. 186 (1885). 19. In an action by one town against an- other for the support of a pauper alleged to have a settlement in the defendant town under the Pub. Sts. c. 83, § 1, ol. 11, a clerk in the Adjutant General's office was allowed to testify that in 1862 the Adjutant General's depart- ment was governed by the place of residence stated in the descriptive rolls of regiments, in assigning credits to towns. Held, that the evidence was admissible, although the clerk was not employed in said office until July, 1863, and only professed to be able to testify to the fact from his knowledge of the customs of the department after he was employed there. Worcester v. Norlhhorough, 140 Mass. 897 (1886). 20. Under the Pub. Sts. e. 84, § 14, pro- viding that the expenses incurred in the relief of a pauper, within three months next before notice given to the place to be charged, may be recovered of such place by the place incur- ring the same, in an action "to be instituted within two years after the cause of action arises, but not otherwise," no such action can be maintained, unless brought within two years from the time of giving the notice re- quired by the statute. Reading v. Maiden, 141 Mass. 580 (1885). 21. If a person who, after having served in the navy of the United States as part of the quota of a town in this Commonwealth, and having been honorably discharged, in 1864, enlists again as part of the quota of another town, and during the term of his second en- listment is convicted of wilful desertion in 1864, § 3 of the St. of 1865, c. 230, enacting that the provisions of the statute in relation to the acquirement of a settlement by those who had served in the army and navy of the United States shall not apply " to any person who shall have been guilty of wilful deser- tion," prevents him from gaining the settle- ment which, but for his desertion, he might have acquired by virtue of his first enlistment. Cambridge v. Paxton, 144 Mass. 520 (1887). PAWN. See Pledge. PAYMENT. See Assumpsit, IV., IX.; Bank, pi. 4, 5; Bills and Notes, VIII. pi. 5, 6; Guaranty; Insolvent Debtor, II. pi. 2; Insurance, III. pi. 2; Interest ; Judgment, pi. 15; Law AND Fact, II. pi. 6, 7; Lien; Limitation, II. pi. 4, 6; Mortgage, I. (e), pi. 6; Part- nership; Release. 1 . The presumption that a negotiable prom- issory note, given for a pre-existing debt, is taken in satisfaction of the debt, is a pre- sumption of fact, which may be controlled by evidence that such was not the intention of the parties. Brigham \. tally, 130 Mass. 485(1881); Dodge v. Emerson, 131 Mass. 467 (188])- Green v. Russell, 132 Mass. 536 (1882). 2. The giving by a creditor of a receipt, not under seal, for a certain sum "in full" of a claim for a larger sum, is not of itself conclusive evidence of payment. Grinnell v. i Spink, 128 Mass. 25 (1879). 3. Part payment of a debt, after its matu- rity, is not a sufficient consideration for a dis- charge, not under seal, of the remainder; it has no effect as an accord and satisfaction, and rests upon no legal or valid considera- tion. Lathrop V. Page, 129 Mass. 19 (1880). 4. In an action by a savings bank against the surety on a promissory note, to which the defence was payment, there was evidence that the treasurer of the plaintiff bank, who was the officer in charge of its business, and the defendant were joint sureties on another note, which had been paid by the defendant, and which was signed by the same principal as the note in suit; that, on the bankruptcy of this principal, an agreement was entered into by the treasurer and the defendant, by which the treasurer should pay the note held by the bank, and the defendant should deliver to the treasurer the note paid by him, and pay the treasurer whatever on a final settlement should be found to be due ; that the note held by the bank was delivered by the treasurer to the defendant and proved by him as a claim against the estate of the bankrupt, and the treasurer proved the other note as a claim held by him against the same estate, and stated to the register that the bank had re- ceived payment on the note formerly held by it. It was admitted that the note in suit was not in fact paid by the treasurer, and there was evidence that, on the death of the treas- urer, the note was found with the other secu- rities of the bank. Held, that this evidence constituted no defence to the action. North Bridgewaler Savings Bank v. Soule, 129 Mass. 528 (1880). 5. In an action by an administrator upon several promissory notes given for sums of money lent to the defendant by the intestate, it appeared that the intestate, who was a part- ner with S., requested the defendant to sign a certain note as surety for them, saying that, if he would do so, " the defendant should never lose anything by so doing, and that he should not be called upon for the money which the intestate had and should thereafter put into the defendant's hands until the defend- ant should be relieved from all responsibility on said note, and that the intestate would protect him from all loss on account of said note. ' ' Some of the sums of money expressed by the defendant's notes were lent to him be- fore, and some of them after, this promise; and relying upon it, the defendant signed, as surety for the intestate and S., a note at a certain bank upon which a certain sum was due at the intestate's death. S. was appoint- ed administrator of his estate, and, the bank desiring a living surety in place of the intes- 777 PERJURY. 778 tate, S. asked the defendant to sign a new note for the amount due on the old note, if the intestate's heirs would sign; and said that the defendant would stand in the same rela- tion as on the old note ; such a note was made, signed by S., as principal, and by the defend- ant and the widow and daughter of the in- testate as sureties, and transmitted to the bank. The presiding judge found that the amount due on the old note " was paid by S. by said new note." The new note was after- wards paid by the defendant, who claimed to set off so much of the sums lent him by the intestate as would reimburse him for this pay- ment. Held, that such application could not be made. Kingman v. Soule, 132 Mass. 285 (1882). 6. A. bought goods under a contract in writing by which the title to the goods was to remain in the seller until paid for by instal- ments. Subsequently, A. bought other goods from time to time, and at each time a sched- ule of the goods was entered upon the origi- nal contract, and A. signed an agreement upon the same instrument, stating that he authorized the additions to the within "upon the same terms, conditions, and agreements " as therein contained. A. made payments from time to time, for which receipts were given " as per lease." The entire amount due not having been paid, the seller took pos- session of the goods under the contract, and A. replevied the goods. At the trial of the action, there was no evidence as to the ap- propriation of any of the payments, by either party, to any particular portion of the goods. Held, that these facts would warrant a find- ing that the successive purchases were in- tended to be separate contracts; and that a ruling was right, that the payments should be applied to the earliest items of the account; and that, when they amounted to the price of the goods bought at any one time, there was a payment for that lot. Swett v. Boyce, 134 Mass. 381 (1883). 7. In an action by the payee against the maker and the indorser of a promissory note, it appeared that, after the maturity of the note, the indorser agreed to give, and the payee agreed to accept, in payment of it, new notes for two thirds of its amount, and cash for the other third; that the indorser sent to the payee the new notes, but did not send the money; that the payee immediately replied by letter that he did not agree to accept the notes except in connection with the money, and should expect to receive the money not later than a day named; and that he retained the new notes until the trial, when he tendered them to the defendants. Held, that it was a question for the jury whether the new notes were accepted in part payment of the note in suit. Corner v. Pratt, 138 Mass. 446 (1885). 8. The defendant gave the plaintiff prom- issory notes, in renewal of earlier notes upon ■which the interest was overdue. The new notes did not include, and were not received in satisfaction of, the overdue interest ; but the question of interest was understood by the parties to remain an open one, the de- fendant saying that he would make it all right, acknowledging that he was legally lia- ble, and urging certain reasons why the claim ought not to be pressed. The old notes were left, together with the new ones, in the de- fendant's possession, where they had been before, but crumpled up, and not for safe keeping. Held, that these facts would war- rant a finding for the plaintiff in an action for the overdue interest. Eamesv. Cushman, 135 Mass. 573 (1883). 9. At the trial of a petition to enforce a mechanic's lien, under the Pub. Sts. c. 191, it is a question of fact whether a promissory note received by the petitioner from his em- ployer was payment pro tanto. Casey v. Wea- ver, 141 Mass. 280 (1886). 10. If wages accrue to a seaman under two different masters of a vessel, and payments are made by the latter master out of money belonging to the vessel, such payments are, in the absence of a specific appropriation by either party, to be applied to the earliest items of the account. Smith v. Oakes, 141 Mass. 451 (1886). 11. If A.'s wife, at his request, and for the purpose of paying a debt due from him to B., borrows of C. a sum of money, giving C. therefor a promissory note signed by her and by D. , and the money so borrowed is applied in payment of A.'s debt to B., and D. pays the judgment obtained in an action season- ably brought against him on the note by C, D. may maintain an action against A. for the amount so paid; and the statute of limitations does not begin to run until the date of such payment by D. Wheeler v. Young, 143 Mass. 148 (1887). PENALTY. See Gaming. PENSION. Under U. S. Rev. Sts. §§ 4785, 4786, 5485, or U. S. St. June 20, 1878, an attorney, who has received the fee thereiu prescribed for services in procuring a pension, is not en- titled to maintain an action, against a person other than the pensioner, for a larger fee, upon an alleged promise of such person to pay him for his services as much as they were reasonably worth. The statutes clearly pro- hibit the receiving of additional compensation for such services, not only from the pensioner, but from any person. Wolcott v. Frissell, 131 Mass. 1 (1883). PERJURY AND SUBORNATION OP PERJURY. 1. An indictment against S. for perjury al- leged that he offered himself as bail for a T79 PERPETUITY. 780 person under arrest for an offence, and, on his examination before a bail commissioner, made a statement under oath that he had certain personal estate of a value not less than fifteen hundred dollars, " whereas in truth and in fact said S. did not then and there have personal estate of the value of not less than fifteen hundred dollars." Held, that there was a good assignment of the falseness of the statement. Commonwealth v. Sargent, 129 Mass. 1]5 (1880). 2. If an indictment for perjury alleges that the defendant, being required " to make a written statement under oath " of his prop- erty, and, " being duly sworn, did, in pur- suance of said requirement, make said state- ment," evidence that the defendant was not sworn until after the statement was reduced to writing is not a variance. Commonwealth V. Sargent, 129 Mass. 115 (1880). 3. An indictment for perjury alleged that, on the third day of January, a complaint was made before a trial justice against T., char- ging him with a certain offence; that T. was arrested and brought before the justice and an examination had upon the complaint on the said third day of January ; and that at such examination the defendant committed the perjury for which he was indicted. Upon the production of the record of the trial jus- tice, it appeared that the complaint against T. was dated on the thirty-first day of De- cember, but that the arrest and examination were on the said third day of January follow- ing. Held, that, under Pub. Sts. c. 214, § 26, there was no material variance between the allegations of the indictment and the proof. Commonwealth v. Soper, 133 Mass. 393 (1882). 4. If an indictment for perjury contains several assignments of the falseness of the statements alleged to have been made, and one of them is sufficiently set forth, the de- fendant has no ground of exception to the admission of evidence applicable to all the as- signments, if he does not request the evidence to be confined to the valid assignment. Com- monwealth V. Sargent, 129 Mass. 115 (1880). 5. At the trial of an indictment for suborn- ing one S. to commit perjury upon the trial of a complaint charging certain persons with adultery, it appeared that S. testified, at the trial upon the complaint, that he went up a ladder, and looked through a window, and saw such persons lying on a sofa, and saw them, while so lying on the sofa, committing adultery. S. testified for the government, at the trial on the indictment, that he did not go up the ladder, did not look through the win- dow, and did not see the persons as he had before testified that he saw them. The gov- ernment also introduced evidence to prove that it was impossible that S. could have seen persons upon the sofa by looking through the window. The defendant then offered evi- dence of , former acts of familiarity between the persons referred to, which was excluded. The defendant testified that at the time in question he also went up the ladder and saw the persons named lying on the sofa and committing adultery. The government then, the defendant consenting, called the persons named, and they testified that they were net upon the sofa together, and did not commit adultery. The defendant did not renew his offer of proof. Held, that the evidence offered was rightly excluded. Commonwealth v. Hollia, 140 Mass. 436 (1886). PERPETUATING TESTIMONY. See Defosition. PERPETUITY; REMOTENESS. See Devise, III. pi. 5; Trust, II. 1. A testator provided in his will for the erection of a monument in memory of himself and his wife, at a cost named. His wife left a will, which, after giving several specific lega- cies, contained the following residuary clause:. " My house and furniture, silver plate, fix- tures, and everything to be sold, if there should not be enough from iny husband's es- tate for a monument, I wish to have my money expended for a monument of granite, .... if there should be money enough left from my husband's estate. I want a memento of Hope, Faith, and Charity, the expenses to be taken from my own estate, and his name cut on the steps, the remainder left I wish it to be kept in trust to beautify and keep the it in good order. I wish this to be carried strictly through." Held, that the testatrix intended to direct that her house and other property should be sold for the purpose of erecting the monument provided for by her husband's will with the proceeds, in case his estate should not be suflicient for that purpose ; that, in case there was money enough for that pur- pose from his estate, a memento was to be erected, at the expense of her own estate, which was to be a design of Hope, Faith, and Charity, upon which her husband's name was to be cut; and that the remainder of her property was to be held in trust to beautify and keep in order the monument, and that the provision sought to create a perpetuity for a use not charitable, and was therefore Void. Bates V. Bates, 134 Mass. 110 (1883). 2. The rule against perpetuities, which governs limitations over to third persons to take effect in the future, 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 by him or them at any time. Tobey y. Moorei 130 Mass. 448 (1881). 3. A testator by his will devised the residue of his property to his six children. By a cod- icil he devised certain stores to a charitable corporation, its successors and assigns forever, in trust to apply the net rents and income to the support of such indigent students in the- 781 PERSONAL PROPERTY. 782 ology, while resident at C, as should be pre- paring themselves for the ministry, who should be deemed most meritorious and worthy of assistance, in sums not exceeding $100 to $150 a year for three years. The codicil further provided, as a " condition," that, in case of the corporation " accepting said bequest, and afterwards applying or appropriating said rents and income to any other or dinerent purpose or object than that hereinbefore ex- pressed, then said bequest or devise from that time shall become null and void to all intents and purposes, and the said stores shall from thenceforward revert to and become a part of my estate, to be distributed, divided, and dis- posed of, under the provisions of my said last will and testament, in the same way and manner as if the aforegoing devise had never been made." On a bill in equity, brought by the charitable corporation, it appeared that the income from the trust estate had largely increased from what it was at the testator's death; that there had not been a sufficient number of indigent students to exhaust the net income, if each beneficiary was paid no more than the amount stated in the codicil ; and that there was a large surplus income which was constantly increasing. Held, that the codicil created, not a condition, but a conditional limitation, which was void for re- moteness. Held, also, that the principal ob- ject of the trust could be best carried out by increasing the amount to be paid to each beneficiary. Theological Education Society v. Attorney General, 135 Mass. 285 (1883). 4. A testator, by his will, gave the residue of his estate to trustees in trust to pay the in- come to his sister M. during her life, and, at her death, to pay over the income, during their respective lives, to such of the children of his sister A. as should then be living or thereaf terwards be born ; and further provided that, upon the death of any of said children of A., leaving issue, " such issue to take equally, to them and their respective heirs and assigns, the share of which the parent during life was entitled to the income ; but in case of the death of any of said children without issue, the share or shares of such deceased children is to be equally divided among his or her broth- ers and sisters, the said share, however, to be held in trust as aforesaid." Held, on a bill in equity, by the trustees under the will, to obtain the instructions of the court, that the children of A. took only life estates, and not estates tail; that the limitation over to such children was not void for remoteness; and that any questions as to the effect of the limitations over upon the death of any of the children of A. could not be considered. Pratt V. Alger, 136 Mass. 550 (1884). 5. A testator left by his will the residue of his property to trustees, in trust to pay his wife from the net income a certain sum annu- ally, to add the balance thereof to the capital, and, after the death of the wife, to add the whole net income to the capital. The will further provided that, " at the expiration of three years from the death of my wife, or at such time, whether earlier or later, as may in the discretion of the trustees be found expe- dient and practicable for the final settlement and distribution of my estate, the trustees shall pay, convey, and transfer said fund in equal shares, viz. one share to each " of cer- tain " nieces and nephew then surviving, and one share to the issue of each of said nieces and nephew then deceased leaving issue then surviving, according to their right of repre- sentation. " The widow waived the provisions of the will. Held, that the bequests to the nephew and nieces were not void for remote- ness. Held, also, that, during the life of the widow, the nephew and nieces were not en- titled to have the trust terminated. Held, also, that the annuity to the widow was not to be treated as intestate property. Branden- burg V. Thorndike, 139 Mass. 102 (1885). 6. A testator, by his will, gave the remainder of his property to his executors in trust, to use so much of the income thereof as should be needed for the support of his daughter during her life, and of her child or children during the life of each and all; and directed that " the balance of said income and the property after the death of my said child, and her child pr children, if any, shall all be paid over by my executors for the sole use and benefit of " a certain religious corporation " to said corporation forevei." The daughter died unmarried and without issue. Held, that the devise over to the corporation was not void for remoteness. SeaverY. Fitzgerald, 141 Mass. 401 (1886). PERSONAL PROPERTY. As to when a building is taxable as real estate with the land on which it stands, see Tax. See also Fixtures; Mortgage. 1. The enumeration, in a deed of land with a house thereon, of certain articles in the house, which would not pass by a grant of the realty, does not make personal property other articles not included in the enumeration, which, as between grantor and grantee, might be treated as part of the realty. Leonard v. Stickney, 131 Mass. 541 (1881). 2. A building fitted up as a dwelling-house and affixed by a person to land owned by him in common with another person, without any previous or contemporaneous agreement that it shall remain personal property, becomes a part of the realty, and cannot afterwards be made a chattel by an indefinite understanding between them ; and upon a petition for par- tition of the land under Gen. Sts. c. 136, the person so affixing the building is not entitled to set up any special right therein as real es- tate. Aldrich v. Husband, 131 Mass. 480 (1881). 3. A mortgagor of a factory placed therein a table, under such circumstances that, as between him and A., the mortgagee, it be- came a part of the realty. Subsequently A. 783 PHYSICIAN. 784 foreclosed the mortgage, and B., a second mortgagee of the real and personal estate, re- leased to him all his interest in the property covered hy the first mortgage. A dispute afterwards having arisen concerning certain property in the factory, A. and B. submitted the question concerning this property to ar- bitrators, the submission reciting that no ques- tion was made about the table, which was con- ceded to be the property of B. The submis- sion and the award of the arbitrators were filed in court. B. subsequently, without the knowledge of A., sold the table to C, who suffered it to remain in the factory, under an agreement with persons using the factory by A.'s consent that it should remain his prop- erty. While the table was thus in the factory , A. sold the land to D., who had no actual knowledge of the statement contained in the submission to arbitration, but who was in- formed after he had paid for the land, and before he received his deed, that C. claimed to own the table, and of the facts upon which his claim was based. Held, that the title to the table passed to D. as part of the realty. Smith Paper Co. v. Servin, 130 Mass. 511 (1881). 4. A. , who was in possession of a parcel of land under a bond for a deed, erected a barn upon the land, the sills of which rested in part on large stones imbedded in the soil, and in part upon the soil itself. There was no agree- ment between A. and the owner of the land as to whose property the barn should be in case A. did not fulfil the obligations of the bond. After a breach of the bond, bat while A. was in possession of the land, the barn was attached by a creditor of A., and removed from the land. Held, in an action of tort in the nature of trover, by the owner of the land against the attaching ofiicer, after a demand, that the barn was part of the realty, and was not subject to attachment; and that the action could be maintained. Westgate v. Wixon, 128 Mass. 304 (1880). 5. A., while in possession of land belong- ing to B., who had agreed to give him a deed upon certain terms, erected a building thereon under an agreement that it was not to be the property of B., but that A. should have the right to remove it at any time. Subsequently A., without the knowledge of B., sold the building by bill of sale, not recorded, to C. Afterwards B., at the request of A., conveyed the land to D. by a warranty deed, which made no mention of the building. At the same time, B.'s agreement to convey to A. was given up, and A. gave B. a release of the land "with all the privileges and appurte- nances thereto belonging." C. then brought an action against B. for the conversion of the building. Held, that, as against B., the title to the building passed by the sale to C. ; and that the action could be maintained. Dolliver V. Ela, 128 Mass. 557 (1880). 6. A bake-house and oven, built of brick and resting on stone foundations, embedded in the ground, were erected, under an agreement with the owner, by a tenant of a store on the land who carried on the business of a bakery therein, the owner agreeing that, if the ten- ant " should be taken away, or anything should happen, he would take it ofi his hands at a fair valuation. " The tenant afterwards sold the business and fixtures, including the bake-house and oven, and the owner con- sented to accept the purchaser as tenant on the same terms as the former tenant; and also agreed that the purchaser might remove everything he bought of the former tenant, including the oven. The purchaser, after re- ceiving notice as tenant at will to quit the premises, attempted to remove the bake-honse and oven, and was forbidden to do so by the owner. Held, in an action, by the purchaser against the owner of the land, for the conver- sion of the bake-house and oven, that there was evidence of a conversion proper to be submitted to the jury. Korhe v. Barbour, 130 Mass. 255 (1881). PHOTOGRAPH. See Evidence, IH. pi. 1. PHYSICIAN. 1. In an action against a physician and surgeon for not properly treating a wound on the plaintiff's Tirrist, there was evidence that the wound was a very severe one, and re- quired a considerable degree of skill in its treatment; that the defendant lived in a small country town, and had no experience in sur- gery beyond that usually had by country sur- geons; that an eminent surgeon lived within four miles of the defendant, and the plain- tiff was physically able to have visited any other surgeon than the defendant, if so di- rected, but no such direction was given him. At the request of the plaintiff, the judge instructed the jury that, if the defendant had not the requisite skill and experience to treat the wound, he should have tempora- rily dressed it, and recommended the plaintiff to a more skilful surgeon; and also instructed the jury, against the plaintiff's objection, that the implied contract of a physician or surgeon was that he possessed that reasonable degree of learning, skill, and experience which is or- dinarily possessed by others of his profession, ' having regard to the advanced state of the science of surgery; that the defendant was bound to possess that skill only which phy- sicians and surgeons of ordinary ability and skill, practising in similar localities, with op- portunities for no larger experience, ordina- rily possess; and he was not bound to possess that high degree of art and skill possessed by eminent surgeons in large cities, and making a specialty of the practice of surgery; that the rule applicable to the case was not appli- cable to physicians and surgeons alone, and was not confined to other members of the learned professions ; but it was equally appli- cable to all persons holding themselves out 785 PLEADING. 786 as possessing special skill in the business in which they were engaged ; that a civil engi- neer, watchmaker, mechanic, or blacksmith was subject to the same rule of law. The judge declined to instruct the jury, as re- quested by the plaintiff, that it was incum- bent on the defendant to possess the degree of skill and learning possessed by well-edu- cated surgeons ; and that the average degree of skill and learning possessed by the sur- geons of this Commonwealth was not neces- sarily all the skill and learning which it was incumbent on the defendant to possess. Held, that the plaintiff had no ground of exception. Small V. Howard, 128 Mass. 131 (1880). 2. In an action against a physician and surgeon practising his profession in a small country town, for not properly treating the plaintiff's broken arm, the judge instructed the jury as follows : " If the defendant, at any time during his attendance upon the plaintiff, either at the time of the original injury or afterwards, was uncertain and in doubt as to the extent or nature of the in- jury, or any injury which he was attending upon, the defendant was required to use his best judgment as to the best course of treat- ment, and also whether he should consult some competent surgeon, if such could have been found within a reasonable distance. If the defendant had not the requisite skill and experience to treat the arm, or felt incompe- tent to care for the injury, he should have temporarily dressed it, if necessary, and rec- ommended the plaintiff to a more skilful sur- geon. ' ' Held, that the plaintiff had no ground of exception. Mallen v. Boynton, 132 Mass. 443 (1882). _ 8. If a person publicly practising as a phy- sician, on being called upon to attend a sick woman, prescribes, with foolhardy presump- tion or gross recklessness, a course of treat- iiient which causes her death, he may be found guilty of manslaughter, although he acted with her consent, and with no evil intent. Commonwealth V. Pierce, 138 Mass. 165 (1S84). 9. At the trial of an indictment for man- slaughter, there was evidence that the de- fendant, who practised as a physician, on being called to attend a sick woman, pre- scribed that her clothes should be kept sat- urated with kerosene, and that this course of treatment caused her death. The jury were instructed that the defendant was "to be tried by no other or higher standard of skill or learning than that which he necessarily as- sumed in treating her ; that is, that he was able to do so without gross recklessness or foolhardy presumption in undertaking it." Held, that the instruction was sufficiently favorable to the defendant. Commonwealth V. Pierce, 138 Mass. 165 (1884). PILOT. 1. The provision of Gen. Sts. c. 52, § 7, and of St, 1862, 0. 176, that a pilot shall have a lien for his fees upon a vessel liable to him therefor, does not take away his right of action against the master for the same. Per- kins V. O'Mahoney, 131 Mass. 546 (1881). 2. It is no defence to an action for compul- sory pilotage fees, under St. 1862, c. 176, that the services of the pilot were offered on Sun- day. Perkins v. O'Mahoney, 131 Mass. 546 (1881). 3. Under the St. of 1862, c. 176, § 17, an order of the Governor and Council, providing that an outward bound vessel, liable to pilot- age if inward bound, shall be held to pay pilotage to the pilot offering his services, whether such services are accepted or not, is valid. Martin v. Wilherspoon, 135 Mass. 175 (1883). 4. A vessel, regularly documented and sail- ing under a coasting license, and engaged in transporting coal from the depot of the char- terer in one port to his depot in another port, for sale at the latter port in the regular course of his business, and which has been engaged continuously for several years in carrying coal for him and others between various ports along the coast of the United States, is " reg- ularly employed in the coasting trade," with- in the Pub. Sts. c. 70, § 32, and exempt from compulsory pilotage. Chase v. Philadelphia §• Reading Railroad, 135 Mass. 347 (1883). 5. The provision of the Pub. Sts. c. 70, § 17, that " no person shall receive a com- mission or exercise the office of pilot until he has given to the Treasurer of the Common- wealth a bond with two sureties in the penal sum of one thousand dollars," requires a bond for that sum with two sureties, each bound for the whole sum ; and a person whose bond recites that the two sureties are bound in the sum of $500 each, and to whom the commissioners of pilots issue a commission, under which he acts, is a pilot de facto only, and cannot maintain an action against the owner of a vessel for compulsory pilotage fees. Dolliver v. Parks, 136 Mass. 499 (1884). PLAN. See Deed; Grant; Trial; Wat. PLAY. See Literary Property. PLEADING. I. Declarations. II. Answers. III. Demurrers. IV. Replications. V. Pleas in Abatement. VI. Motions to Dismiss. 787 PLEADING, I. 788 Parties to actions, see Parties. Equity pleading, see Equity Pleading AND Practice. Criminal pleading, see Indictment. Pleading peculiar to actions of contract in the nature of assumpsit, see Assumpsit. In actions on bills and notes, see Bills AND Notes. In actions for forcible entry, see Forcible Entry. In real actions, see Real Action. In replevin and in actions of tort in the nature of trespass and of trover, see Re- plevin; Trespass; Trover. In actions for slander and libel, see Libel. In actions by and against executors^ see Executor. In actions by and against corporations, see Corporation. In insurance cases, see Insurance. In questions of limitation, see Limita- tion. In actions against towns and cities for de- fects in highways, see Way. Other cases involving questions of pleading peculiar to particular titles will be found un- der those titles. Practice, see Practice. Variance, see Variance. I. Declarations. 1. A declaration contained two counts, al- leged to be for the same cause of action. The first count was in tort in the nature of trover, for the conversion of ten barrels of flour. The second count was in contract, alleging that the plaintiff had in his posses- sion as a common carrier fifteen barrels of flour transported by him and consigned to the defendant; that he permitted the defendant to take five barrels, claiming and notifying him that the plaintiff would hold' the remain- ing ten barrels until the freight and advances due to him were paid; and that the defendant afterwards took and carried away the ten bar- rels, thereby becoming liable to pay the plain- tiff the amount due him for such freight and advances. Held, that the two counts were properly joined; and that it was within the discretion of the court to determine whether the plaintiff should elect upon which count he would go to the jury. New Haven §• North- ampton Co. V. Campbell, 128 Mass. 104 (1880). 2. In a suit upon a constable's official bond, it is immaterial that the declaration does not in terms describe him as holding the office of constable. Dennie v. Smith, 129 Mass. 143 (1880). 3. A. signed a note thus: " Jamesville Man'f'g Co. by A., Agt." A. had authority to sign the note, and, moreover, held himself out as a member of tiie firm of B. and C, who did business under the name aforesaid. A. , B. , and C. were sued upon the note. Held^ that a judgment might be entered against them without an amendment of the decla- ration. Nichols V. James, 130 Mass. 589 (1881). .4. A declaration,. Containing several counts^ alleged that W. had a contract with a build- ing committee to build a ,schoolhouge, and applied to the plaintiff to furnish lumber and materials ;, that the plaintiff refused to furnish these on the credit of W. ; that the defend- ants, the building committee, in consideration " that the plaintiff would so furnish and sell to W. the said lumber and materials," promr ised to accept and honor such orders as W. should draw, and to pay them out of the moneys which should become due to W. un- der the contract; that the plaintiff' sold and delivered said lumber and materials to W.,; that certain orders were made and presentpi^i containing a specification that they were to be paid respectively " out of the third and fourth payments ; " that these orders were such as the defendants had promised and agreed to accept; that afterwards the, third and fourth payments mentioned in the orders were due and payable to W. ; and that the defendants refused to pay the orders, ffeld, on demurrer, that it was not necessary toallege that the lumber and materials were us^din the schoolhouse ; that the declaration did not show that the orders presented were such as the defendants promised to accept;. and that the averment that the third and fourth pay- ments were due and payable was sufficient to show a breach of the promise to pay the or- ders, without alleging that the payments were ordered by the architect, as required by the contract of building. Smith v. Milton,, 133 Mass. 369 (1882). 5. A declaration alleging that, in consider- ation of the conveyance by the plaintiff to the defendant of certain real estate, the.de- fendant agreed to support the plaintiff during his life, and that the defendant accepted the conveyance and occupied the estate, but re- fused and neglected to perform his agfee- ment, is sufficient to enable the plaintiff to recover damages a^ for a total breach of the agreement. Parker v. Russell, 133 . Mass, 74 (1882). 6. A declaration averred that the plaintiff was to make skates for the defendant, who ordered the plaintiff to keep on hand at all times stock enough for future use ; and that, suddenly and without warning, he was or- dered by the defendant to stop manufactur- ing, and that the defendant refused to take the stock, and that the plaintiff could not.uge it because of the defendant's patents. No breach of contract was averred or proved, nor did any specific agreement appear under which the defendant was bound to take the stock off the plaintiff's hands. Held, that no cause of action was shown. Winslow v. Plimpton, 134 Mass. 44 (1883). 7. A count in tort for , deceit in thp sale (ft stock may be joined with a count in contract to recover back the price paid. Teague v. Irwin, 134 Mass. 303 (1883). 8. A declaration alleged " that S. gave the plaintiff an order upon the defendant for the amount of money which was then due from the defendajit toS., to wit, the sum of fifty dollars; .which > order the defendant accepted 789 PLEADING, I. 790 and agreed to pay, a copy whereof is hereunto annexed, and the defendant owes the plaintiff the amount for which said order was given, to wit, the sum of fifty dollars." Annexed was a copy of an order, signed hy S., addressed to and accepted hy the defendant, requesting him to pay the plaintiff " what money may be due me, and charge the same to my account." Held, that evidence was admissible to show what amount was due from the defendant to S. at the time the order was accepted. Capron V. Anness, 136 Mass. 271 (1884). 9. An allegation in a declaration of a con- clusion of law from the facts averred is not traversable, and is not admitted by a demur- rer, and may be rejected as surplusage. Jones V. Dow, 137 Mass. 119 (1884). 10. A declai-ation alleged that a corpora- tion, by its treasurer P., made a promissory note payable to P., for the purpose of negoti- ating it for the benefit of the coi-poration ; that P. indorsed the note, waiving demand, notice, and protest; that the defendants, who were directors in the corporation, some of vehom had approved the note in writing, "for said purposes and for said considerations," made the followingxcontraot, which they in- dorsed on the note: "We hereby guarantee the payment of the within note ; " that the note was then, before its maturity, sold and delivered to the plaintiff for a valuable con- sideration paid by him to P. Held, on demur- rer, that the declaration showed a guaranty of the note, for a sufficient consideration, to the plaintiff, as the first indorsee and holder for value. Jones v. Bow, 137 Mass. 119 (1884). 11. An objection to a ruling, that an action cannot be maintained under the declaration, is done away with by the allowance of an amendment to the declaration. Birnbaum v. CrowninsUeld, 187 Mass. 177 (1884). 12. If a declaration on a policy of life in- surance, which refers to the policy, is not de- murred to, it is no ground of exception to the admission of the policy in evidence, that the declaration construed in connection with the policy ia ambiguous. Pierce v. Charter Oak Ins. Co., 138 Mass. 151 (1884). 13. A declaration on a policy of life insur- ance need not allege facts which defeat a part of the plaintiff's claim under special provisions of the policy. Pierce -v. Charter Oak Ins. Co., 138 Mass. 151 (1884). 14. A declaration contained a count alleging that the plaintiff mortgaged certain personal property to the defendant to secure the pay- ment of a promissory note, and that the mort- gage was duly recorded; that the defendant, without notice required by law and without any legal notices to the plaintiff, took and sold the mortgaged property, and thereby de- prived the plaintiff of his right to pay the note and redeem the property, " and the defendant has converted said property to his own use. " Held, that the count was in tort in the nature of trover. Wells v. Connable, 138 Mass. 513 (1885). 15. A cause of action for breaking and en- tering the plaintiff!a close cannot be joined in one count with one for malicious prosecution. Allen V. Codman, 139 Mass. 136 (1885). 16. If an action is entitled in the writ one of tort,! and the declaration contains only counts in tort, an amendment of the writ, whereby the words " or contract " are inserted after the word " tort," may be disregarded, on demurrer to the writ and declaration. Bishop V. Weher, 139 Mass. 411 (1885). 17. A declaration alleged that the plaintiff attended a ball, having a ticket therefor; that the defendant, who was a caterer, was em- ployed to cater for all who might attend the ball, and to furnish, for all who might wish, good and wholesome food, for a certain sum to be paid therefor by each person who par- took of the same ; that the defendant under- took and agreed to cater and to furnish good and wholesome food at the ball to whomso- ever wished and paid therefor; that the de- fendant was himself present at the ball, and superintended the catering, and furnished the waiters who supplied the food eaten by each person ; that the plaintiff, having a ticket therefor, bought of and paid for to the de- fendant, ate of the food furnished by the de- fendant, and given to the plaintiff by the defendant's waiters, believing that the same was wholesome and good and safe to be eaten, and had been properly prepared by the defend- ant; and that the food was not good and wholesome and properly prepared, but was improperly and negligently prepared, and was unwholesome^ poisonous, dangerous, and unfit to be eaten, and, by reason thereof, the plaintiff was poisoned and injured. Held, on demurrer, that the declaration set forth a good cause of action. Bishop v. Weber, 139 Mass. 411 (1885). 18. An objection that the declaration in an action on the Pub. Sts. c. 136, §§ 26, 27, against the heirs of a deceased person, for a breach of the covenants in a deed of land from him to the plaintiff, does not allege that the estate of the deceased has been settled, and that the defendants have received any estate from him, must be taken by demurrer; and it is too late to take it at the trial. Eddy v. Chace, 140 Mass. 471 (1886). 19. A declaration alleged that an election was to be held on November 6, 1883; that the plaintiff's name was on the register of voters, and the plaintiff had the right to vote at such election; that on November 3, 1883, the select- men of the town, although they had sufficient evidence furnished them of the plaintiff's qualifications as a voter, wrongfully removed his name from the register and the lists of voters, and wrongfully refused the ballot ten- dered by the plaintiff at the election. Held, that the declaration set forth a good cause of action for the erasure of the plaintiff's name from the register of voters. Lamed v. Wheeler, 140 Mass. 390 (1886). 20. A declaration alleged that "the defend- ant's servant. B., who was at the time watch- ing and guarding the defendant's lumber-yard and had charge thereof, unlawfully, without cause, and maliciously, made an assault upon" the plaintiff to an extent specified, " all of 791 PLEADING, I. 792 ■which the said defendant's servant did wrong- fully and without cause in an unjustifiable attack upon the plaintiff, under an assumption that the plaintiff was trespassing upon the de- fendant's land, and without notice to leave." Held, on demurrer, that the declaration did not sufficiently allege that the assault vras committed by B. •while acting within the scope of his employment as the defendant's servant. McCann v. TUlinghast, 140 Mass. 327 (1885). 21. The declaration in an action by a cor- poration alleged that certain persons agreed to form a corporation under general laws, if they could obtain certain machinery from the defendant, and to build a factory for the manufacture of certain goods ; that such per- sons Informed the defendant of the premises, and, in the name and for the benefit of the proposed corporation, applied to the defend- ant, who was a manufacturer of the machin- ery desired, for such machinery, and informed the defendant that the proposed corporation would proceed with its organization and would build a factory only in case a contract could be made with the defendant for the machin- ery ; that thereupon the defendant made two contracts in writing, one of which was under seal, to furnish the corporation with the ma- chinery upon certain specified terms; that afterwai'ds, in anticipation of the defendant's fulfilling his agreement, a factory was built for the corporation; that said machinery could not be procured otherwise than from the defendant, which he well knew ; that the per- sons named, in behalf of the proposed corpo- ration, befoi'e its organization was completed, were always ready to receive and pay for said machinery, and frequently demanded the same, but the defendant neglected and refused to furnish said machinery or any part thereof; and that said corporation was now duly or- ganized and existed under the general laws. Held, on demurrer, that the declaration al- leged a contract made before the plaintiff had a legal existence, and did not show any contract to which the plaintiff was a party; and that the action could not be maintained. Penn Match Co. v. Hapgood, 141 Mass. 145 (1886). 22. A declaration alleged that the plaintiff had been for many years a compiler and pub- lisher of directories of cities, towns, and coun- ties in this Commonwealth; that, after great labor and expense he had acquired a large number of subscribers throughout the cities and towns of the Commonwealth for a certain directory, which he had compiled and pub- lished biennially for many years ; that, at great labor and expense, he had acquired a large and valuable list of advertisers in said directory, from -whom, as well as from said subscribers, he obtained a large income ; that he would have compiled and published said directory in the year 1885, and had made his preparations therefor, but that the defendant and his servants and agents, in order to injure the plaintiff, and to deprive him of the oppor- tunity of compiling and publishing said direc- tory for the year 1885, and afterwards, and receiving the profits therefrom, and to secure the same to the defendant, knowingly and wilfully, falsely and fraudulently pretended and represented to many persons, and par- ticularly to the plaintiff's said advertisers and subscribers, that the plaintiff had gone out of the business of compiling and publishing said directory, that the plaintiff had sold out said business to the defendant, that the defendant's servants and agents were compiling the ma- terials for the plaintiff's directory, the same as formerly, and thereby deceitfully and wrongfully induced the plaintiff's said adver- tisers and subscribers to give to the defendant their advertisements and subscriptions, and to pay him instead of the plaintiff therefor; that said representations Were wholly false and untrue; that the defendant wrongfully and deceitfully compiled and published said directory for the year 1885, and sold the same to the plaintiff's said advertisers and subscrib- ers, and to other persons; that the plaintiff had thereby been prevented from compiling, publishing, and selling said directory in the year 1885; that he had lost great gains and profits which he would otherwise have made, and had been put to great loss and expense in preparing for said compilation and publica- tion until he learned of the defendant's acts, and would be hereafter prevented from com- piling and publishing said directory except at an increased expense and with diminished profits. Held, on demurrer, that the declara- tion did not state a legal cause of action. Dudley v. Briggs, 141 Mass. 582 (1886). 23. The declaration in an action alleged that a corporation, by its treasurer, P., made a promissory note for f 5,000, payable to P., for the purpose of negotiating it for the bene- fit of the corporation; that P. indorsed the note, which was approved by the directors of the corporation ; that the defendants, who were directors, " for said purposes and for said considerations," indorsed upon the note the following contract: " We hereby guarantee the payment of the within note ; " and that the note was then, before its maturity, sold and delivered to the plaintiff for a valuable consideration paid by him to P. At the trial, the plaintiff testified that P. asked him to dis- count the note ; that he had the transaction with him as treasurer ; that P. said the money was going to the corporation ; that he let P. have $1,000, and took his individual note for the amount, with the note for $5,000 and a bill of sale of a lot of railroad ties as collat- eral security, with a power of sale on default of payment within five days; that he after- wards made two similar loans of $250 each, taking P. 's individual note for each with the same security ; that these loans were not paid when due; and that payment was demanded. Held, that sufficient consideration had been shown to support the action on the guaranty; that there was no variance between the decla- ration and the proof; and that the testimony of the plaintiff was admissible for the pur- pose of identifying the plaintiff as the first holder for value and the promisee in the guar- anty, and also to show the consideration. Jones V. Dow, 142 Mass. 130 (1886). 793 PLEADING, I. 794 24. A declaration alleged that the plaintiff delivered to the defendant, to be held and safely kept by him, certain shares of stock in a corporation, as collateral security for the payment of a promissory note signed by the plaintiff, with authority to sell the same and apply the proceeds towards the payment of the note, in case of default in the payment thereof by the plaintiff; that the defendant, in consideration of such pledge and delivery by the plaintiff, promised and undertook to hold and keep said stock, and redeliver the same to the plaintiff on payment of the note ; that, on or before the maturity of the note, the plaintiff, in order to provide for the pay- ment of the note at maturity, had effected a valid contract for the sale of said stock at a certain price per share, the stock to be deliv- ered and assigned on or after maturity of the note; that, at the maturity of the note, the plaintiff was ready and willing to pay said debt and receive back the stock, and offered to redeem the same, and demanded the same of the defendant, who informed him that the note and certificates had been lost, and that it was out of his power to return either the note or the certificates; that the defendant refused and neglected for a long time to re- turn said certificates to the plaintiff, or permit him to redeem the same; that, by reason of said loss, refusal, and neglect, the plaintiff lost his said sale and the benefit thereof, and was deprived of his right to sell the same, as he could have done; that, about fifteen months after the maturity of the note, said stock was found by the defendant, and the debt to him discharged, and the stock received back by the plaintiff, and sold by him at a greatly di- minished price, whereby he had suffered the loss of a certain sum, which was caused solely by the defendant's neglect to keep safely the property so pledged as collateral security. Held, on demurrer, that the declaration did not state a legal cause of action. Cumnock v. Newburyport Savings Institution, 142 Mass. 342 (1886). 25. A declaration alleged that the plaintiff executed a mortgage, with a power of sale, of certain real estate owned by him, to B., trustee, subject to two prior mortgages of said premises, to secure the payment of a sum named, " and upon the trust therein ex- pressed and hereinafter stated ; " that, on a day named, B. offered said premises for sale by auction in pursuance of said power, and the defendant bid for the equity of redemp- tion of said premises a certain sum, and the same was struck off to the defendant for that price, the record thereof being in a certain book at a certain page; that on said day, "B., trustee as aforesaid, executed and de- livered a deed of assignment of said trust mortgage deed and the premises therein de- scribed to the defendant, who then and there accepted the same, and became charged with the trusts therein contained;" that on said day the defendant took possession of said premises, and had used and occupied the same and had the rents and profits thereof ever since; that on said day the defendant applied in part payment of the sum bid by him for the premises the amount due him upon said deed of assignment, leaving a certain bal- ance " unpaid and due upon the defendant's said bid at auction, the same then and there being the property of the plaintiff; " that the defendant had held in trust for the use and benefit of the plaintiff said balance, and said real estate to the extent of said balance, from said day to the present time; that the defend- ant was chargeable with said balance, and the reasonable interest and annual income and ac- cumulations thereon, " and in the use of said real estate ' ' from said day to the present time ; that the plaintiff had requested pay ment of the annual income thereof, " and of the amount due upon said trust," of the defendant, but the defendant had neglected to comply with the plaintiff's requests; and that the defendant owed the plaintiff " by reason of said trust " a sum named. Held, that the declaration set forth no cause of action. Walpole v. Quirk, 143 Mass. 72 (1886). 26. A declaration alleged that the defend- ant represented to the plaintiff that he was the treasurer and agent of a certain company, that said company owned an invention or apparatus used as an attachment to stoves, whereby petroleum or its products were used for fuel in stoves, that said apparatus or in- vention was of great value, that experiments had been made therewith, which had proved Euooessful, that in the use of said apparatus there was no dirt, smell, or smoke, or filling the pipes, that it burned one year without the necessity of repairing or renewing the same, and that the cost of using said apparatus for heating purposes was not more than from one half to two thirds as much as that of wood or coal; that all of said representations were false and fraudulent, and known to be such by the defendant when made ; that the defendant re- sorted to various methods of concealing the falsity of said representations from the plain- tiff; that said representations were made and the falsity thereof concealed to induce the plaintiff to purchase of said company the exclusive right to sell said apparatus in cer- tain towns in this Commonwealth; that, be- lieving said representations to be true, the plaintiff was induced to, and did, purchase of said company the exclusive right to sell said apparatus, and paid said company a certain sum therefor; that the plaintiff, believing said representations to be true, bought of said company said apparatus in large numbers, and paid said company large sums of money therefor; that he sold said apparatus and put them into stoves, and spent a large amount of time and labor in trying to make them work, but they would not work, and proved to be wholly worthless and valueless, and he was obliged to take them back and repay the money received therefor ; and that he returned said apparatus, and demanded the money he had paid for the same, but the defendant and said company refused to repay him. Held, on demurrer, that the declaration did not state a legal cause of action. Kimiall T. Bangs, 141 Mass. 321(1887). 795 PLEADING, II. 796 n. Answers. 1. In an action upon an account annexed, the defence of accord and satisfaction is not open under an answer containing a general denial, and alleging payment. Grinnell v. Spink, 128 Mass. 25 (1879). 2. Under Gen. Sts. o. 129, if a former judgment is an adjudication between the same parties to a second action, and against the plaintiff, of issues which tend directly to disprove the allegations contained in the declaration, it is admissible in evidence under an answer denying those allegations. Foye V. Patch, 132 Mass. 105 (1882). ' 3. In an action against an executor for the conversion of a chattel, alleged to be the property of the plaintiff, the defendant, after the plaintiff has made out a prima facie case, may, under an answer denying property in the plaintiff, put in evidence that the chattel belonged to the defendant's testator. Foye V. Patch, 132 Mass. 105 (1882). 4. In an action for damages for manufac- turing machinery covered by letters patent, in contravention of an agreement between the parties, the answer set up that the defendant had paid a license for the machinery manu- factured by him ; and a supplemental answer averred that a certain person gave the defend- ant a license to manufacture and sell under said contract, a copy of which was annexed. Annexed to the answer was a written contract from a joint owner with the plaintiff of the patent. Held, that evidence of a parol license from such joint owner was not admissible under the answer. Crawford v. Weston, 131 Mass. 283 (1881). 5. Under an answer to a declaration for goods sold and delivered, alleging that, if the defendant bought such goods of the plaintiff, " he did so through the false and fraudulent representations made by the defendant," but containing no allegation as to what consti- tuted, or what were the circumstances of, the alleged fraudulent representations, evidence of such representations is admissible. Good- sell V. Trumbull, 135 Mass. 99 (1883). 6. A declaration in an action against a city contained three counts, the first of which al- leged that the defendant broke and entered the plaintiff's close and tore down and de- stroyed a certain wooden building thereon; the second count alleged a conversion of the building; and the third count alleged a con- version of a lot of lumber. The answer con- tained two paragraphs, the first of which denied that a part of the close described in the declaration was the soil and freehold of the plaintiff, and alleged " that the same is within the limits of a town way," which it was the defendant's duty to keep in repair; that " the plaintiff had erected on said way a wooden building obstructing said way," which was a public nuisance; and that the "defend- ant by its agents entered upon said way and removed said building." The second para- graph of the answer denied that the defendant broke and entered the plaintiff's close, and converted to its own use the goods and chat- tels of the plaintiff, as alleged in his writ. Held, that it was open to the defendantj under the pleadings, to contend that the acts of its superintendent of streets, in forcibly entering with his men upon the plaintiff's close in pursuance of a vote of its board of aldermen, even if the acts constituted a tres- pass by these persons, did not constitute a breaking and entering by the defendant. Manners v. Haverhill, lib Mass. 165 (1883). 7. In an action upon a promissory note, an answer, as follows, " the defendant denies the signature of the alleged note described in the plaintiff's declaration," does not contain such " a special denial of the genuineness " of the signature to the note, " and a demand that " it " shall be proved at the trial," as to require the plaintiff to prove the signature, under the Pub. Sts. c. 167, § 21. Spooner v. Gilmore, 136 Mass. 248 (1884). 8. In an action for malicious prosecution,, evidence that the defendant, in instituting the prosecution, acted under the advice of counsel, is admissible under an answer containing a general denial only. Folger v. Washburn, 137 Mass. 60 (1884). 9. In an action against the maker of a promissory note, payable to bearer, brought in a police court, the defendant filed in that court an answer, as follows: " The defendant denies that the note declared on by the plain- tiff was ever signed by her, and denies that the signature to said note was ever made by her, or at her request or with her knowledge, and requests that the plaintiff may be compelled and obliged to prove the said signature to said note was made by her at the trial of said cause." In the Superior Court, on appeal, the defendant filed an answer containing a general denial only; and an additional answer, repeating such general denial, denying that the plaintiff was the bearer of the note, and further averring that, if any evidence should be offered tending to show that she signed said note, she would show that the note was obtained from her by false and fraudulent representations. Held, that the special denial of the genuineness of the signature to the note, and the demand for its proof, were in the form required by the Pub. Sts. c. 167, § 21 ; that the defendant was not required to file such special denial and demand anew in the Superior Court; and that it was necessary for the plaintiff to prove the genuineness of the signature to the note. I'rue v. Dillon, 138 Mass. 347(1885). 10. If the answer to a declaration for goods sold and delivered alleges that the goods were delivered under a special contract, and sets out the contract, which contains several stipu- lations, and further alleges that the plaintiff has failed to perform the contract, and that the goods delivered have been paid for, evi- dence that the defendant has been injured by the breach of the contract on the part of the plaintiff' is inadmissible, if it appears that the goods delivered have not been paid for. Den- ham V. Bryant, 139 Mass. 110 (1885). 11. In an action against the principal and sureties upou a bond to dissolve an attach- 79T PLEDGE OR PAWN. 798 ment, the declaration in which alleges a final judgment for the plaintifE against the princi- pal defendant in the original action, it is open to the defendants, under a joint answer con- sisting of a general denial only, to show that no final judgment has been rendered which is still in force ; but not to impeach the validity of the judgment. Fogel v. Dussault, 141 Mass. 154 (1886). m. Demurrers. 1. If a declaration alleges that a contract was made by A., as agent for the defendant, and sets forth facts which show that A. was not an agent, a demurrer to the declaration does not admit the fact of agency. Everett v. Drew, 129 Mass. 150 (1880). 2. Where the declaration in an action against a railroad corporation to recover dam- .ages for injuries received by a defect in a bridge which the corporation was bound to keep in repair, fails to allege that notice was given as required by St. 1877, c. 234, § 3, such notice being a condition precedent to the right to maintain an action, the omission may be availed of by demurrer. Dickie v. Boston §■ Albany Railroad, 131 Mass. 516 (1881). 8. If a declaration does not set forth any known cause of action, even imperfectly, a demurrer assigning that it does not state any legal cause of action is sufficient. Johnson v. Reed, 136 Mass. 421 (1884). 4. An objection that the declaration in an ac- tion on the Pub. Sts. c. 136, §§ 26, 27, against the heirs of a deceased person, for a breach of the covenants in a deed of land from him to the plaintifE, does not allege that the estate of the deceased has been settled, and that the defendants have received any estate from him, must be taken by demurrer; and it is too late to take it at the trial. Eddy v. Chace, 140 Mass. 471 (1886). 5. In an action of replevin of certain rags imported into a city by the plaintiff, and re- tained by the defendant under a claim of lien for the charges for disinfecting the rags, it is not open to the plaintifE to object that the answer, which is demurred to, does not show that the disinfection was accomplished to the satisfaction of the board of health of the city, in accordance with a regulation of the board, but only shows that the defendant's process of disinfection was one satisfactory to the board, if such objection is not specifically assigned as a cause of demurrer. Train v. Boston Disinfecting Co., 144 Mass. .523 (1887). 6. In an action of replevin of certain rags imported into a city by the plaintiff, and re- tained by the defendant under a claim of lien for the charges for disinfecting the rags, it is not open to the plaintiff to contend that the provisions of the Pub. Sts. c. 80, §§ 64, 67, contemplate a special exercise of the judgment of the board of health as to each cargo arriv- ing, and not the passage of a general regula- tion, if the answer, which is demurred to, shows that there was a distinct order for the disinfection of the rags in question. Train v. Boston Disinfecting Co., 144 Mass. 523 (1887). IV. Keplications. 1. If in an action two issues are raised and tried, one of which is the fraud of the defend- ant in obtaining the money sued for, and the other is the minority of the plaintiff at the time the contract was entered into, under which the money was paid, and the jury re- turn a general verdict for the plaintiff, and the defendant afterwards obtains his discharge in bankruptcy and pleads it in bar of judg- ment in the action, the plaintiff should file a replication to such plea, setting up that his debt was created by fraud of the bankrupt ; and a motion for judgment, notwithstanding the plea, is properly denied. Kellogg v. Kim- ball, 135 Mass. 125 (1883). 2. The answer to a declaration for money had and received contained a general denial, and alleged that the defendant had duly ac- counted for and paid all moneys ever received by him of the plaintiff. Held, that the plain- tiff was entitled, under the Pub. Sts. c. 167, § 24, to file a replication, averring that the defendant had never paid him, and that the accounts rendered were false and fraudulent. Held, also, that the plaintiff was entitled to file interrogatories to the defendant, under the Pub. Sts. c. 167, § 49, relating to the issue raised by the replication. Todd v. Bishop, 136 Mass. 386 (1884). 3. After a verdict for the plaintiff in an action, the defendant filed a plea puis darrein continuance, setting up his discharge in bank- ruptcy; and the plaintiff filed a replication to this plea, alleging that the debt of the defend- ant, " aa alleged in said declaration," was created by the fraud of the defendant, and is not barred by the discharge in bankruptcy. The defendant demurred to the replication, on the ground that the debt, as alleged in said declaration, did not appear to have been created by the fraud of the defendant. Held, that the words in the replication, " as alleged in said declaration," referred to the debt, and not to the fraud; and that the demurrer was rightly overruled. Kellogg v. Kimball, 138 Mass. 441 (1885). V. Pleas in Abatement. See Abatement. VI. Motions to Dismiss. See Appeal ; Bastardy. PLEDGE OR PAWN. See Collateral Security; Mortgage. As to pledge by factor, see Agent, VII. As to pledge by symbolical delivery, see Bill of Lading. 1. A receipted bill of parcels of chattels, purporting on its face to be as security for a debt, is a pledge, and not a mortgage; and if the pledgee, after receiving possession of the chattels, permits the pledgor to resume pos- 799 POLICE, MUNICIPAL, AND DISTRICT COURTS. 800 session of them and to hold them until his death, he cannot by then takinpf possession of them defeat the right of the administrator to maintain against him an action for their con- version. Thompson v. Dolliver, 132 Mass. 103 (1882). 2. If a broker agrees to buy and hold cer- tain stock for a customer, who pays a part of the purchase money, agreeing to pay interest on the sums advanced by the broker, and, in case the stock depreciates in value, to make a "margin" of a certain sum per share in ex- cess of the market price, this does not create the relation of pledgor and pledgee between the parties ; and if, after the failure of the customer to make the necessary advances up- on demand, the stock having depreciated in value, the broker sells the same at the broker's board without notice to the customer, he is not liable for a conversion of the stock. Covell V. Loud, 135 Mass. 41 (1883). 3. If a promissory note, held in pledge, is delivered by the pledgee to the pledgor for the purpose of procuring it to be discounted, and a third person advances money upon the note, in good faith, and in ignorance of the pledg- ee's title, he can retain the note, as against the pledgee, as security for the advance ; but if such person knew, at the time the note came into his possession, of the pledgee's title, he cannot hold it, as against the latter, either for an advance of money upon it as a loan to the pledgor, or as security for any for- mer indebtness of the pledgor to him. Kellogg V. Tompson, 142 Mass. 76 (1886). 4. In January, 1883, the owner of a lot of woodland executed a lease of it, for two years from April 1, 1883, the lessee to have the privilege of cutting and removing the wood and timber during that time, and agreeing to pay a certain sum on May 1, 1883, with inter- est from the day of the execution of the lease. The lease also contained an agreement " that the wood and timber on the described prem- ises shall be held by the lessor as guaranty for the payment " of the sum named and interest. At the same time, the lessee gave the plaintiff a promissory note for the amount named, with interest, payable on May 1, 1883. When the note became due it was not paid, and the par- ties agreed that it might lie, on interest. The lessor afterwards permitted the lessee to cut and remove some of the wood and timber. Held, that the transaction was not a condi- tional sale, but was in the nature of a pledge. Held, also, that, after the failure of the lessee, the lessor could acquire no additional title, as against an assignee in insolvency subsequently appointed, by taking possession of the wood and timber, with the consent of the lessee. Wilkie v. Day, 141 Mass. 68 (1886). POISONING. 1. At the trial of an indictment for the murder of a woman by poison, there was evi- dence that the life of licentiousness and de- bauchery which she had led would account for her death and the symptoms attending her last sickness; and that her reputation for so- briety was not good. The defendant then offered to show particular occasions when the woman had been seen drunk. Held, that, as it did not appear that the particular acts of drunkenness were connected with the death of the woman, or were near the time of her death, it was within the discretion of the pre- siding justices to admit or reject them, and that the defendant had no ground of exception to their rejection. Commonwealth v. Evan 134 Mass. 223 (1883). 2. An indictment, on the Pub. Sts. c. 202, § 32, alleging that the defendant feloniously, wilfully, and maliciously mingled two ounces of a certain poison, to wit, white arsenic, with certain food, with intent that the same should be cooked and eaten by one C, with the in- tent to injure and kill said C, is sufficient, without further alleging that the defendant knew that the arsenic was a poison. Common- wealth v. Hobbs, 140 Mass. 443 (1886). 3. At the trial of an indictment, on the Pub. Sts. c. 202, § 32, for attempting to poi- son a person by mingling white arsenic with his food, a chemical analysis, which was put in evidence, showed that certain food eaten by him contained a quantity of white arsenic. There was also evidence that, prior to the time of the alleged attempt to poison, the de- fendant bought two boxes of an article called " Rough on Rats," for the declared purpose of killing cats and rats ; that there was but one article called by that name ; that it was manufactured by one W. ; and that it was a uniform article. A chemist, who had ana- lyzed a box of the article, manufactured by W., was allowed to testify that it consisted almost wholly of white arsenic, colored with a little lamp-black. Held, that the evidence of the chemist was competent; and that the fact that the arsenic was colored with lamp- black was immaterial. Commonwealth v. Hobbs, 140 Mass. 443 (1886). POLICE, MUNICIPAL, AND DISTRICT COURTS. See Appeal; Certiorari, pi. 1; Justice OP THE Peace; Removal op Suits. 1. A warrant issued by a special justice of the First District Court of Bristol at a session thereof at Attleborough, held under St. 1877, c. 189, may be returned to that court sitting at Taunton. Commonwealth v. Intoxicating Liquors, 128 Mass. 72 (1880). 2. The provision of St. 1874, c. 271, § 11, relating to the municipal courts of Boston, that, "upon pleas in abatement, or motions to dismiss for defect of form in process, the decisions of said courts shall be final," applies to decisions upon questions of law only. O'Loughlin v. Bird, 128 Mass. 600 (1880). 3. The exclusive original jurisdiction of all actions of replevin where the value of the property alleged to be detained does not ex- ceed one hundred dollars, conferred upon trial 801 POLICE OFFICER. 802 justices by St. 1877, o. 211, § 3, extends, by force of Gen. Sts. c. 116,' §§ 10, 18, to district and police courts; and an' action of replevin where the value of the property replevied does not exceed one hundred dollars cannot be brought originally in the Superior Court. Ocio V. Teahan, l33'Maas. 430 (1882). 4. The jurisdiction given to police and dis- trict courts, by the St. of 1877, o. 210, § 4, in actions of tort, where the damages demanded are more than $20 and do not exceed $300, is not taken away by the St. of 1877, c. 211, § 3, giving trial justices exclusive jurisdiction in actions of tort where the damages demanded do not exceed |100. Bossidy v. Branniff, 135 Mass. 290 (1883). 5. If judgnient is rendered against a party in a district court, and he has, without fault on his part, lost his right of appeal, the Su- perior Court has, under the Pub. Sts. c. 187, § 25, power to grant a writ of review. Keene V. White, 136 Mass. 23 (1883). 6. A constable may, upon a capias issued by a district court in a criminal case, arrest a person outside of the town for which he is elected, but in the same county, and within the jurisdiction of the court issuing the war- rant. Sullivan v. Wentworth, 137 Mass. 233 (1884). 7. A district court, which, in accordance with the provisions of the statute establishing it, holds weekly terOis, has no authority, on motion at one of such terms, to vacate a final judgment duly entered in an action at a pre- vious term. Wood v. Payea, 138 Mass. 61 (1884). 8. If a writ issued by a district court is served by a summons which does not state the hour of the day nor the place where the court is to be holden, and the plaintiff obtains a judgment against the defendant on his de- fault, such judgment, until reversed, is a valid judgment, and is conclusive upon the plaintiff. Wood V. Payea, 138 Mass. 61 (1884). 9. The St. of 1882, c. 233, § 3, provided that " the town of Marlborough shall consti- tute a judicial district under the jurisdiction of a court to be called the Police Court of Marlborough." The record of proceedings upon a complaint to that court stated that they were had " at the Police Court of Marl- borough, in the district of Marlborough, in the county of Middlesex, holden in said dis- trict." Held, that the record showed suffi- ciently that the proceedings were within the judicial district of the court. Commonwealth V. Lynch, 138 Mass. 190 (1884). id. Under the Pub. Sts. c. 154, § 50, the Municipal Court of Boston has jurisdiction of a complaint on the Pub. Sts. c. 207, § 18, for keeping a house of ill-fame. Commonwealth V. Smith, 138 Mass. 489 (1885). 11. The word "judgment " in the Pub. Sts. 0. 154, § 61, re.eep- 917 SPIRITUOUS LIQUCfRS, 11. 918 iiig and illegal sale of intoxicating liquors, applications purporting to be signed by the defendant, for licenses to sell intoxicating liquors and as a common victualler at the premises described in the complaint, were offered in evidence. The clerk of the city to which the applications were made testified that he thought the signatures to the applica- tions were those of the defendant; but, upon cross-examination, said that he would not swear that they were; and the applications were admitted in evidence. The defendant introduced in evidence a lease of said prem- ises, signed by him. The district attorney argued to the jury that the signatures to the applications and to the lease were in the same handwriting. The applications and lease were submitted to the jury. Held, that the de- fendant had no ground of exception. Com- monwealth v. Andrews, 143 Mass. 23 (1886). Burden of Proof. 26. At the trial of a complaint for main- taining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, if the defendant relies upon a license as a justi- fication, the burden is upon Ijim, under Pub. Sts. c. 214, § 12, to prove a license which is broad enough to authorize the acts complained of. Commonwealth v. Rafferty, 133 Mass. 574 (1882). 27. At the trial of a complaint for unlawful sales of intoxicating liquors on the Lord's day, if the defendant has an innholder's license, and a license of the first class for the sale of such liquors to be drunk on the prem- ises, covering the time of the alleged sales, the burden of proof is upon him to show that the persons to whom the sales were made were guests who had resorted to his house for food or lodging. Commonwealth v. Tovile, 138 Mass. 490 (1885). 28. At the trial of a complaint for unlawful sales of intoxicating liquors on the Lord's day, if the defendant has an innholder's license, and a license of the first class for the sale of such liquors to be drank on the premises, covering the time of the alleged sales, the burden of proof is upon him to show that the persons to whom the sales were made were guests who had resorted to his house for food or lodging. Commonwealth v. Molter, 142 Mass. 533 (1886). Implements and Fixtures. 29. At the trial of a complaint for an un- lawful sale of intoxicating liquor to A., he testified for the government that he bought one half -pint of whiskey of the defendant, paying a certain sum therefor; and he pro- duced a small bottle of iluid, which he said was the same whiskey which he bought of the defendant, in the bottle in which it was de- livered. Held, that the bottle was properly admitted in evidence. Commonwealth v. Ste- vens, 142 Mass. 457 (1886). 30. At the trial of a complaint for keeping and maintaining a tenement used for the il- legal sale and illegal keeping of intoxicating liquors, the testimony of aa officer, who had searched the defendant's premises, that a tumbler which he seized contained intoxicat- ing liquor, is competent, without producing the liquor, or accounting for its absence. Comnumwealth v. Welch, 142 Mass. 473 (1886). Label. 31. At the trial of a complaint for an un- lawful sale of intoxicating liquors, the evi- dence for the government tended to show a sale by the defendant of lager beer. The defendant testified that, at the time of the alleged sale, he had no intoxicating liquors on his premises ; that the only beer he had was Bavarian hop beer ; and that he bought all of his beer of a certain brewer ; and he produced and identified a label as the label which was on the barrel from which the alleged lager beer was drawn. He then offered the label in evidence for the purpose of identifying the barrel and its contents; but it was excluded. Held, that it should have been admitted. Commonwealth y. Collier, 134 Mass. 203 (1883). Eecord. 32. At the trial of a complaint alleging that the defendant, on a day named, kept intoxi- cating liquors with the intent to sell the same unlawfully, a record of proceedings, which resulted in favor of the defendant, for the seizure and forfeiture of certain intoxicating liquors, alleged to have been kept by the de- fendant on the same day named in the pres- ent complaint, with the intent to sell the same unlawfully, is inadmissible, in the ab- sence of evidence that the time relied on by the government was the same in both cases, although it is admitted that the liquors de- scribed in the two complaints were the same. Commonwealth v. Doyle, 132 Mass. 244 (1882). Third Persons. 33. At the trial of a complaint for keeping intoxicating liquors with intent unlawfully to sell the same, there was evidence tending to show that the house in which the defendant lived was a place of common resort for per- sons who did not live there; that persons under the influence of liquor were seen to come from the house, especially on Sundays ; that, at the time officers searched the prem- ises, a large number of men were found there- in, one of whom was intoxicated; that there were signs of the recent drinking of beer in the house, and there was a pile of sawdust wet with beer ; and that, about three weeks pi'eviously, the defendant was engaged in re- ceiving and laying in a stock of beer, or of some kind of liquor. Held, that it could not be said, as matter of law, that the evidence was not sufficient to justify a verdict of guilty. Commonwealth V. Mead, 140 Mass. 300 (1885). 34. At the trial of a complaint for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, it appeared that the defendant was a licensed innholder, and also had licenses of the first and fourth classes to sell intoxicating liquors. A witness, who lived opposite the deiendaut's hotel, testified that he had seuu 919 SPIRlfUOUS LIQUORS, II. 920 many people go in and come out of the hotel every day, mostly on Sundays, and once he had counted fifty persons go into the hotel in one hour; that he saw many drunken people about the place; that, on one occasion, he saw some men come out of the hotel, making con- siderable noise, and engage in a quarrel in the street near the hotel ; that on Sundays he had seen many persons going over a passage- way toward the rear of the hotel, in which the bar-room was situated, but he could not tell whether they entered the hotel; that on Sundays he had seen people go in and come out of the hotel drunk and fighting; and that he saw the defendant there at various times. Held, that there was evidence, proper to be submitted to the jury, tending to show that the defendant illegally sold intoxicating liquors on the Lord's day to persons who were not guests. Commonwealth v. Leighton, 140 Mass. 305 (1885). (c) Instructions and Rulings. 1. At the trial of a complaint for maintain- ing a tenement used for the illegal sale and keeping for sale of intoxicating liquors, from April to July, a witness testified that, during that time, the defendant sold and delivei-ed to him a glass of lager beer; and that the beer was taken from a bottle. The defendant tes- tified that the beer sold to the witness was Berlin beer, and contained less than three per cent of alcohol; and that he had kept this same kind of beer down through August, and had kept no other kind of beer since April. An officer testified, against the defendant's ob- jection, that he went to the defendant's place of business in August, in the evening, with a search-warrant for intoxicating liquors ; that, as he entered a certain room, some one put out the light; that he afterwards saw the de- fendant break a bottle in the room; that he also found a number of broken bottles in the room, but he did not know who had broken them ; and that there was a smell of lager beer in the room where he saw the broken bottles. The judge instructed the jury, that if the de- fendant purposely broke a bottle containing the same kind of beer which he testified he had kept in his place of business from April down through August, to keep it away from the searching officer, this act might be con- sidered as evidence bearing on the question of whether the defendant thought the beer was intoxicating liquor. Held, that the defendant had no ground of exception. Commonwealth V. Daily, 133 Mass. 577 (1882). 2. At the trial of a complaint for maintain- ing a tenement used for the illegal sale of in- toxicating liquors, a witness, who testified to seeing sales of such liquors by the defendant to several persons, also testified that he was employed by a certain association to procure evidence of illegal sales of intoxicating liquors. The defendant asked the judge to rule that the fact that the witness did not fortify his evidence by producing the persons to whom the sales were made, to testify, if he could have done so, was "a proper matter for con- sideration in weighing his testimony." The judge declined so to rule; and ruled that " the witness had nothing to do with summoning and procuring witnesses, as that was the duty of the district attorney." Held, that the de- fendant had no ground of exception. Com- monweallh v. Fan-ell, 137 Mass. 579 (1884). 3. At the trial of a complaint for keeping and maintaining a tenement used for the il- legal sale and illegal keeping of intoxicating liquors, it appeared that the defendant had a license of the first class to sell such liquors, to be drunk on the premises; and the evidence for the government tended to show two sales of liquors by the defendant, which were car- ried away from the premises by the buyer. The judge instructed the jury, that, if the de- fendant was the proprietor of the premises, and made either of the sales testified to, they must return a verdict of guilty. Held, that the instruction was erroneous. Commonwealth V. Patterson,' \Z% Mass. 498 (1885). 4. At the trial of an indictment for keeping a tenement used for the illegal sale and illegal keeping of intoxicating liquors, if the defend- ant has a license to sell such liquors, and also a license as an i.nnholder, he is not entitled to a ruling that, if he sold intoxicating liquors in good faith to one as a guest, he was not responsible. Commonwealth v. Barnes, 188 Mass. 511 (1885). 5. At the trial of a complaint for unlawful sales of intoxicating liquors, it appeared that the defendant had a license; that the front of the defendant's premises was on L. Street; that on M. Street there was a building used as a public school, within four hundred feet of an alleged entrance to the defendant's premises; that between M. Street and the de- fendant's premises was land of one T. , bound- ing the defendant's premises upon the entire easterly side ; that about twenty feet west of M. Street, and nearly parallel therewith, a fence had been erected throughout the entire length of T.'s lot, leaving that part upon M. Street un fenced; that through this fence there was a picket gate, to which a footpath pro- ceeded from a door on the east side of the licensed tenement across land of the defendant and of T. to the gate, and thence across the other land of T. to M. Street. The judge instructed the jury that, if they were satisfied that M. Street, as used and occupied by_ the public, adjoined the defendant's premises, and there was an entrance thereto from M. Street, they should find that the defendant had no license ; that it made no difference as to the legal title to the land adjoining the street; if it adjoined the street as used by the public, and as used by school children going to and from school, the defendant ought to have no license. Held, that the instructions were erroneous in omitting to submit to the jury the question whether the gate was open for the use of all persons having occasion to go to the defendant's premises from M. Street. Commonwealth v. Everson, 140 Mass. 434 (1886). 6. At the trial of an indictment for keep- ing and maintaining a tenement used for the 921 SPIRITUOUS LIQUORS, II. 922 illegal sale and illegal keeping of intoxicating liquors, it appeared that the defendant had a license of the first class, under the Pub. Sts. c. 100, to sell such liquors at premises situated at the corner of two streets ; and the govern- ment introduced evidence tending to show, among other tilings, that intoxicated persons congregated on the sidewalk at the corner of said streets. The defendant asked the judge to rule " that evidence of drunkenness or dis- turbance on the street and street corner, not shown to be connected with the defendant, or with the defendant's premises, is not compe- tent to prove violation by the defendant of his license." The judge declined so to rule. Held, that the defendant had no ground of exception. Commonwealth v. Wallace, 143 Mass. 88 (1886). 7. At the trial of a complaint for an unlaw- ful sale of intoxicating liquors to be drunk on the defendant's premises, a police officer tes- tified that he entered the place of business of the defendant, who had a license to sell intoxi- cating liquors not to be drunk on the premises, and saw the defendant standing behind the counter, and a person standing in front of the counter, who held a glass of ale in his hands, which he had raised to his lips, and which he returned to and placed upon the counter with- out drinking any of the contents of the glass; and that the officer saw no money paid. The defendant asked the judge to rule that, upon these facts, the government had not sustained the complaint; but the judge refused so to rule. Held, that the defendant had no ground of exception. Commonwealth v. Luddy, 143 Mass. 563 (1887). 8. At the trial of an indictment against two persons for keeping and maintaining a tene- ment used for the illegal sale and illegal keep- ing of intoxicating liquors, an instruction to the jury, that, " if one was the sole proprietor, and the other was present, aiding and abetting him in acts of proprietorship and control, both might be found guilty of maintaining the tene- ment," is erroneous. Commonwealth v. Galli- gan, 144 Mass. 171 (1887). 9. At the trial of an indictment against A. and B, for keeping and maintaining a tene- ment used for the illegal sale and illegal keep- ing of intoxicating liquors, a witness te.stified that the saloon, during the time named in the indictment, was, to his personal knowledge, A.'s. The defendants, on cross-examination, inquired of the witness what personal knowl- edge he had as to A.'s proprietorship of the saloon, and the witness answered that he knew from the books of the town assessors that the saloon was taxed to A. ; that he had also seen a lease of the saloon to A. covering this period, although he did not know whether A. signed it, and knew nothing further about the lease except what C, the lessor and owner of the estate, had told him, A. not being present at the time; and that he had had a conversation with A. upon the street, during the time named in the indictment, in regard to carry- ing on the business there after the authorities had refused to grant a license for the place. The judge instructed the jury that the asses- sors' books, showing a taxation of the saloon to A,, were not competent evidence that he was the proprietor; that what C. said about him or the lease in his absence was not evi- dence against him; and that an opinion founded on matters of that kind could not be called personal knowledge. Held, that the jury should have been instructed to disregard the testimony of the witness, except that part of it which contained the conversation with A. Commonwealth v. Galligan, 144 Mass. 171 (1887). (d) Screens. 1. At the trial of a complaint under St. 1880, c. 239, § 2, as amended by St. 1881, c. 225, alleging the unlawful placing and maintaining of blinds, on a certain day, on premises used by the defendant for the sale of spirituous and intoxicating liquors under a license, there was evidence of the sale of liquor in the licensed room three days before the day named in the complaint, and that, on the evening of the day named in the com- plaint, the rooms were lighted and voices were heard in the building, which the wit- ness believed came from the bar-room. The judge refused to instruct the jury that there was no evidence that the defendant was car- rying on business on the premises described in the complaint, but left the question to the jury under instructions not objected to; and, at the request of the defendant, further in- structed the jury that the government must prove beyond a reasonable doubt that the business of selling spirituous and intoxicating liquors was being carried on at the time set forth in the complaint; and that this was not to be presumed from the fact that the defend- ant had a license to sell such liquors. Held, that the defendant had no ground of excep- tion. Commonwealth v. Costetto, 133 Mass. 192 (1882). 2. Pub. Sts. c. 100, § 12, providing that no licensee shall maintain, or permit to be maintained, upon any premises used by him for the sale of spirituous or intoxicating liquor under the provisions of his license, any screen, blind, or other obstruction, in such a way as to interfere with a view of the busi- ness conducted upon the premises, applies to a licensee carrying on business upon the Lord's day, in violation of the conditions of his license. Commonwealth v. Auberton, 133 Mass. 404 (1882). 3. Pub. Sts. c. 100, § 12, as amended bv St. 1882, c. 259, § 1, providing that no licen- see shall maintain, or permit to be main- tained, upon any premises used by him for the sale of spirituous or intoxicating liquor under the provisions of his license, any screen, blind, shutter, or other obstruction, in such a way as to interfere with a view of the business conducted upon the premises, or with a view of the interior of the premises, applies to a licensee who maintains such shutters upon his premises on the Lord's day, although he is prohibited from, and is not in fact, carrying on business on that day. Commonwealth v. Casey, 134 Mass. 194 (1883). 923 SPIRITUOUS LIQUORS, 11. 924 4. A complaint on Pub. Sts. c. 100, § 12, as amended by St. 1882, c. 259, § 1, alleged that the defendant, at a time and place named, was duly licensed to sell spirituous and intoxicating liquor in certain premises, to wit, " the room in the first story of the building situate and numbered fourteen in Charter Street in said city," and then and there used by him for the sale of spirituous and intoxicating liquor under the provisions of such license, and that he " did then and there place and maintain upon said premises, so used as aforesaid, a certain screen, blind, shutter, curtain, and partition, in such a way as to interfere with a view of the business conducted upon said premises, and with a view of the interior of said premises." Held, that the complaint was sufficient; that it was not bad for duplicity, and that it described the premises with suflScient certainty. Com- monweallh v. Gibbons, 134 Mass_. 197 (1883). Compare also Commonwealth v. 'Auberton, 138 Mass. 404 (1882). These statutes create a substantive offence ; and it is not necessary to allege in a complaint thereunder that the defendant has violated the conditions of his license, or that he has sold spirituous and intoxicating liquors in viola- tion of law. Commomoealth v. Costello, 133 Mass. 192 (1882). On such a complaint, the jury are author- ized to find that blinds on the outside of a room, so placed that a person can look into the room only by stooping down and peering through the slats of the blinds, do interfere with a view of the business carried on in the room. Commonwealth v. Costello, 133 Mass. 192 (1882). And the complaint averring that he unlaw- fully maintained " upon said premises used by him as aforesaid " certain blinds, and the evi- dence showing that the blinds were on the out- side of the windows of the room, — Held, that there was no variance. Commonwealth v. Cos- tello, 133 Mass. 192 (1882). 5. A complaint under Pub. Sts. c. 100, § 12, alleged that the defendant unlawfully maintained "upon said premises used by him for the sale of intoxicating liquors under the provisions of his license, certain screens, blinds, shutters, partitions, and other obstruc- tions." It appeared in evidence at the trial, that the defendant maintained in a window of the premises, outside the sash, a frame covered with wire netting, which was sub- mitted to the inspection of the jury. The defendant asked the judge to instruct the jury that they could not convict " unless they should find the article complained of and ex- hibited to them to be a screen or other article specifically named in the complaint; " which instruction the judge gave with this qualifi- cation, "or something in the nature of a screen." Held, that the defendant had no ground of exception. Commonweallh v. Au- berton, 133 Mass. 404. 6. If a person is licensed to sell intoxi- cating liquors "in the front room and rear room " on a certain floor of a building, and is not required by the licensing board to remove the partition between the two rooms, that par- tition is not within the provisions of the Pub. Sts. c. 100, § 12, and the St. of 1882, c. 259, § 1, although it may obstruct the view of the interior of one or the other of such rooms from the public street. Commonwealth v. Barnes, 140 Mass. 447 (1885). 7. A person, licensed to sell intoxicating liquors, may be convicted, under the Pub. Sts. c. 100, § 12, of placing and maintaining upon the licensed pi-emises a curtain, so as to inter- fere with a view of the interior of tlie prem- ises, although the illegal act was done by his servant in his absence, without his knowledge and consent, and in violation of his instruc- tions. Commonwealth v. Kelley, 140 Mass. 441 (1885). 8. Under the Pub. Sts. c. 100, § 12, and the St. of 1882, c. 259, § 1, a person licensed to sell intoxicating liquors cannot place or main- tain upon the licensed premises a curtain which interferes with a view of any part of the interior of the same, whether such part is used for the sale of liquor or not. Common- wealth v. Worcester, 141 Mass. 58 (188G). 9. The words " no such licensee," in the Pub. Sts. c. 100, § 12, prohibiting the mainte- nance of screens or other obstructions upon premises licensed for the sale of intoxicating liquors, refer to every licensee, and not merely to one who has been required by the licensing board to remove screens or other obstructions. Commonwealth v. Rourke, 141 Mass. 321 (1886). 10. At the trial of a complaint for placing and maintaining a screen, blind, shutter, and curtain upon premises alleged to be licensed for the sale of intoxicating liquors, a police officer testified that, on the day named in the complaint, in passing the defendant's prem- ises, he saw the curtains drawn so as to pre- vent a view of the interior; that he went in, and asked the defendant if he was the licensed owner of the place; that the defendant said he was, and that he was licensed; and that the witness called the defendant's attention to the screens, and he made some reply which the witness could not remember. Held, that the jury might infer, from the defendant's admis- sions that he was licensed and was the licensed owner of the premises, that he had a license to sell intoxicating liquors. Commonvealth v. Cameron, 141 Mass. 83 (1886). 11. Under the Pub. Sts. c. 100, § 12, and the St. of 1882, c. 259, § 1, if a person who is licensed to sell intoxicating liquors in a build- ing uses a middle room for the sale of such liquors, the usual entrance to which is had from the street by a door leading from the street to a front room, and thence by a door to the middle room, screens on the windows of the front room, which interfere with a view of the door into the middle room, render the license void. Commonwealth v. Kane, 143 Mass. 92 (1886). (e) Sales. (1.) Generally/. 1. A master is liable to the penalty imposed by St. 1875, o. 99, § 16, if his servant, in the 925 SPIRITUOUS LIQUORS, IL 926 course of his master's business, sells intoxicat- ing liquor, after notice requesting the master not to do so, to a person who has the habit of drinking intoxicating liquor to excess, al though the master has instructed the servant not to make a sale to such person, and the sale is without the knowledge and consent of the master. George v. Gobey, 128 Mass. 289 (1880). 2. An employee of a seller of intoxicating liquors in another State, who there receives an order for such liquors, and, under authority from his employer to receive or reject orders, accepts the order, may be indicted for an unlawful sale in this Commonwealth, if the liquors, in pursuance of his direction, are de- livered to the buyer in this Commonwealth. Commonweallh v. Eggleston, 128 Mass. 408 (18S0_). 3. The keeping without a license of in- toxicating liquors, only for the purposes of mixing them with other ingredients, accord- ing to the prescriptions of physicians, to be used as medicine, and of manufacturing such compounds as are commonly used by druggists for medicinal purposes, is not a violation of St. 1875, c. 99. Commonweallh v. Ramsdell, 130 Mass. 68 (1881). 4. A., having a place of business in B., where he sold liquors, issued a circular to per- sons in H. offering to sell them liquors at prices in B., free of expressage, and stating that applications might be made to a certain post-office box in H. This box was hired by an employee of A. An order for a bottle of whiskey was addressed to this box, and was taken by the employee to A., who selected and set apart a bottle of whiskey, and delivered it to an expressman in B., who carried it to H. and delivered it to the person ordering it. Held, that, on these facts, A. might be found guilty of a sale at H. Commonwealth v. Bur- gett, 136 Mass. 450 (1884). 5. If, in a city which has voted to grant licenses to sell intoxicating liquors, a club, composed of a number of persons, who pay an admission fee upon joining it, and to which all who desire cannot obtain admission, owns a quantity of such liquors, and employs one of its members as a steward, to whom it pays a certain sum for his services and for the use of the room in which the liquors are kept, and who delivers the liquors to the other members upon presentation of checks representing a certain sum, which are sold by him to them at a certain rate, and the money received for which is used by him in buying liquors in the name and as the property of the club, he can- not be convicted, under the Pub. Sts. c. 100, of keeping intoxicating liquors with intent to sell the same. Commonwealth v. Pomphret, 137 Mass. 564 (1884). 6. If the servant of an innkeeper having a license sells intoxicating liquor to a person to whom the license does not authorize such sale to be made, the innkeeper may be convicted of an illegal sale, although neither he nor his servant intended to violate the conditions of the license, and the sale was made in igno- rance of the fact that the purchaser was one of a class to which no sale could legally be made. Commonwealth v. Uhrig, 138 Mass. 492 (1885). 7. At the trial of a complaint against an innholder's clerk, for an unlawful sale of in- toxicating liquors, the judge instructed the jury, " that, if the defendant was not in the room with the proprietor, and the door was locked between him and the proprietor, and the defendant took orders for intoxicating liquors and delivered the liquor to the party ordering it, and took pay therefor, it was a sale by the defendant." Held, that the de- fendant had no ground of exception. Com- monwealth V. Sinclair, 138 Mass. 493 (1885). 8. A person, who has a license of the first class for the sale of intoxicating liquors to be drunk on the premises, may be convicted of keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicat- ing liquors, upon proof of two sales of such liquors to minors, and one sale to an intoxi- cated person. Commonweallh v. Tabor, 138 Mass. 496 (1885).. 9. At the trial of an indictment for keep- ing a common nuisance, to wit, a tenement used for the illegal sale and illegal keeping of intoxicating liquors, having no license to keep such liquors for sale, if it appears that the de- fendant had such license, and also a license as an innholder, it is competent to show that the defendant made sales of liquors on the Lord's day, which were in violation of the conditions of his license unless made to guests who had resorted to the inn for food or lodging; and that he maintained curtains and screens which interfered with a view of the interior of the premises. Commonwealth v. Barnes, 138 Mass. 511 (1885). 10. Upon a complaint for unlawfully expos- ing and keeping for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth, if the defendant kept such liquors with the intent alleged, it is immate- rial whether they were exposed or concealed. Commonweallh v. Henderson, 140 Mass. 303 (1885). 11. At the trial of a complaint for unlaw- fully exposing and keeping for sale intoxicat- ing liquors, with intent unlawfully to sell the same in this Commonwealth, it is immaterial whether the proceedings of an officer, in serv- ing a search-warrant upon the defendant's premises, were regular and lawful, or not. Commonwealth v. Henderson, 140 Mass. 303 (1885). 12. At the trial of a complaint for unlaw- fully exposing and keeping for sale intoxicat- ing liquors, with intent unlawfully to sell the same in this Commonwealth, evidence of sales of such liquors on the defendant's premises two days before the day alleged in the com- plaint is admissible. Commonwealth v. Hen- derson, 140 Mass. 303 (1885). 13. At the trial of a complaint against a married woman, for keeping a tenement used for the illegal sale and illegal keeping of in- toxica'ting liquors, the evidence showed three sales, two in the presence of the defendant's husband, and a third when he was in the 927 SPIRITUOUS LIQUORS, II. 928 yard outside the kitchen where the sale was made. As to this last sale, the jury were in- structed that " no presumption arises that sales made by the wife, when the husband is on the estate, or on the premises, not in her presence, are made under constraint of the husband, and the defendant would be liable for any such sale so made." Held, that the defendant had good ground of exception. Commonwealth v. Flaherty, 140 Mass. 454 (1886). 14. A person, licensed as an innholder, and to sell intoxicating liquors to be drunk on ttie premises, may be convicted of keeping and maintaining a tenement used for the ille- gal sale and illegal keeping of intoxicating liquors, if he sells and delivers such liquors to persons on the Lord's day, although, before supplying such persons with liquors, he re- quires them to eat a cold lunch placed on a table at which the liquors ai'e served. Com- monwealth V. Hagan, 140 Mass. 289 (1885). 15. A person licensed to sell intoxicating liquors cannot be convicted, under the Pub. Sts. c. 100, § 1, of an unlawful sale, upon proof of a sale of such liquors, after eleven o'clock at night, contrary to one of the con- ditions of his license, by his servant, without his knowledge and consent, and in violation of liis instructions. Commonwealth \. Wachen- dorf, 141 Mass. 270 (1886). 16. At the trial of a complaint for keeping intoxicating liquors with intent to sell the same contrary to law, the evidence tended to prove that the defendant kept lager beer with intent to sell the same to be used as a bever- age, and to be drunk on the premises. The judge instructed the jury, that "a license of the sixth class gave to the party holding the same the right to keep for sale and to sell in- toxicating liquors for three purposes only, namely, medicinal, mechanical, and chemical, and gave the holder no right to keep for sale or to sell intoxicating liquors to be used as a beverage, and gave no right to keep for sale or to sell intoxicating liquors, to be drunk on the premises." Held, that the defendant had no ground of exception. Commonwealth v. Mandeoille, 142 Mass. 469 (1886). 17. A complaint alleged that the defendant, at a time and place named, sold intoxicating liquor " without any authority therefor." At the trial, a witness for the government testified that he knew where the defend- ant kept a place, and that he saw a sale of liquor there after eleven o'clock in the evening of the day iu question, but that he could not identify the defendant. It was ad- mitted that the defendant was the proprietor of the place where the sale was made, and had a license of the first class, under the Pub. Sts. c. 100, to do business thereat. The gov- ernment rested its case; and the defendant asked the judge to rule that there was no evi- dence upon which the jury could find the de- fendant guilty. The judge refused so to rule, and ruled that there was such evidence. The defendant then introduced evidence tending to show that no sale was made after eleven o'clock. There was evidence tending to show that the defendant kept a public bar; and that the sale testified to was made over said bar. The defendant repeated his previous request for a ruling, which was again refused; and the judge instructed the jury that the alleged sale must have been made by the defendant, or under his sanction or authority, and that, if so made after eleven o'clock at night, or if so made over a public bar before that hour, they might find the defendant guilty. Held, that the defendant had no ground of excep- tion. Commonwealth v. Chadwick, 142 Mass. 595 (1886). 18. If a person, holding a license of the first class, under the Pub. Sts. c. 100, to sell intoxicating liquors, sells such liquors to an intoxicated person, it is immaterial whether he knew that the person to whom he sold was intoxicated or not. Commonwealth v. Julius, 143 Mass. 132 (1886). (2.) Sales to Minors. 1. A person may be liable to the several penalties prescribed by St. 1875, c. 99, § 15, for selling intoxicating liquor to a minor, giving such liquor to him, and allowing him to loiter upon his premises on the same oc- casion. McNeil V. Collinson, 130 Mass. 1C7 (1881). 2. The action given by St. 1875, c. 99, § 15, to the "parent" of a minor to whom intoxicating liquor has been sold, may be maintained by the mother of the minor, with- out proof that he has no father. McNeil v. Collinson, 130 Mass. 167 (1881). 8. In an action to recover the penalty pro- vided by St. 1875, c. 99, § 15, for the sale of intoxicating liquor to a minor, an allegation in the declaration that the defendant was licensed may be rejected as surplusage. Mc- Neil V. Collinson, 128 Mass. 313 (1880). 4. A complaint for selling into.xicating li- quors to a minor, without having "any license, authority, or appointment, according to law, to make such sale to said minor," need not allege that the defendant was licensed under Pub. Sts. c. 100. Commonwealth v. O'Brien, 134 Mass. 198 (1883). 5. At the trial of a complaint for unlaw- fully selling intoxicating liquors to a minor, the person to whom the sale was made may testify that he was twenty years and eight months old at the time of the sale. Common- wealth V. Stevenson, 142 Mass. 466 (1886). 6. At the trial of a complaint for unlaw- fully selling intoxicating liquors to a minor, it is error to rule that a sale of such liquors by a servant in his master's shop, and in the regular course of his master's lawful business, is prima facie a sale by the master, although the sale is an illegal sale. Commonwealth v. Briant, 142 Mass. 463 (1886). Commonwealth V. Stevenson, 142 Mass. 466 (1886). 7. A complaint, on the Pub. Sts. c. 100, § 9, cl. 4, alleging a sale of intoxicating liquor to a minor, may be maintained by evi- dence that the sale was made,- by a person having a license, to a minor for the u.'e of an adult, although the fact of its being for such 929 SPIRITUOUS LIQUORS, II. 930 adult's use was disclosed at the time of the sale. CoimmnweaUh v. O'Leary, 143 Mass. 95 (1886). (f) Scbool-houses. 1. A license to sell intoxicating liquors, granted to a person ■whose premises are within four hundred feet of a building on the same street occupied by a public school, is void, under St. 1882, c. 220. Commonwealth v. Whelan, 134 Mass. 206 (1883). 2. At the trial of a complaint for an unlaw- ful sale of intoxicating liquors, it appeared that the building in which the sale was made was bounded on one side by C. Street and on another side by S. Sti-eet, the two streets in- tersecting each other at the corner of the building; that the only entrance to the build- ing and the only windows of the premises were on C. Street, the entrance being numbered "28 C. Street;" that a former entrance and a former window on S. Street had been per- manently closed by boardinj up, to meet the requirements of the authorities in granting a license to the defendant; that upon the wall of the building on S. Street there were two signs on which the defendant's name ap- peared, and upon the same wall a sign on which were the words, " Entrance 28 C. Street;" and that the whole building was within four hundred feet of a building on S. Street, then occupied by a public school. Held, that the defendant's building was on S. Street, within the meaning of St. 1882, c. 220. Commomoealih v. Whelan, 134 Mass. 206 (1883). 3. At the trial of a complaint for an un- lawful sale of intoxicating liquors, the gov- ernment contended that the place in which the sale was made was within four hundred feet of a building on the same street, then occupied by a public school. The superin- tendent of public buildings testified that he had charge of said building, and had repaired the same under appropriations for public schools by the school board of the city ; that he had seen schools in session there, but had no further personal kno'Medge that it was a public school. The superintendent of schools testified that said building was occupied by a certain primary school, and that it was under his charge as such superintendent; and that he had no personal knowledge of its establish- ment as a public school. The clerk of the school board produced a printed manual of all the public schools in the city, which he testi- fied was issued by him under the direction of the school board; and produced from the rec- ords of said board the order for its preparation by him, and stated that this was the manual prepared under that order. The manual was then admitted in evidence, by which it ap- peared that said primary school was a public school, and located in said building. Held, that all the evidence was competent, and was sufficient to prove that the building was in fact occupied by a public school, within St. 1882, c. 220. Commonwealth \. Whelan, 134 Mass. 206 (1883). , SUPPLEMEKT. — 30 4. A hotel, in which intoxicating liquors were licensed to be sold, was situated on C. Street. A building occupied by a public school was situated on a lot bounding on C. Street and on W. Street. It was twenty- three feet from the line of C. Street, and fronted on W. Street, and had its entrances therefrom ; and was within four hundred feet of the hotel. There was an entrance into the cellar of the school-house, which was used only by the janitor, by passing through a door, which was usually kept locked, in a fence, and crossing a portion of the lot abutting on C. Street, fenced ofi from the rest of the lot, and occupied in part by an engine-house built in the rear of the school-house. Held, that the hotel was not " on the same street " with the school-house, within the meaning of the St. of 1882, c. 220. Commonwealth y. Jenkins, 137 Mass. 572 (1884). 5. A building, in which intoxicating liquors were licensed to be sold, and a building occu- pied by a public school, were situated within a triangle formed by three streets, M., C, and U., and within four hundred feet of each other. The lot on which the first-named building stood fronted on U. Street, and ran through to M. Street, the latter street having a lower grade than the former, so that there was a cellar basement in the building with doors open- ing into the lot on the M. Street side, where the building was thirty feet distant from the street. The room in the building where the liquors were sold opened into a common hall- way, from which stairs led into the basement. The school-house faced an angle made by the junction of M. Street and C. Street, and had entrances from both, the lot being en- closed by a fence with a gate at the entrance from each street. Held, that it was compe- tent for a jury to find that both buildings were " on the same street," within the mean- ing of the St. of 1882, c. 220. Commonwealth V. Heaganey, 137 Mass. 574 (1884). 6. If a license is granted for the sale of in- toxicating liquors in a certain room of a building, the location of the whole building is to be considered in determining whether it is within the "four hundred feet " of a public school-house on the same street, under the St. of 1882, c. 220, § 1. Commonwealth v. Jones, 142 Ma-ss. 573 (1886). 7. The " four hundred feet " from a build- ing occupied by a public school, named in the St. of 1882, c. 220, § 1, as the distance within which no license of the classes speci- fied shall be granted for the sale of intoxi- cating liquors in any building on the same street, are to be determined by measuring the nearest point of each building to the other, whether they are close to the line of the street, or some distance from it. Commonwealth v. Jones, 142 Mass. 573 (1886). (g) lilquor Nuisances. 1. An indictment on the Pub. Sts. c. 101, § 6, for keeping and maintaining a common nuisance, to wit, a tenement used for the ille- gal sale and illegal keeping of intoxicating 931 SPIRITUOUS LIQUORS, II. 932 liquors, to the nuisance of all peaceable citi- zens, ia sufficient, without more particularly charging the illegal sale or illegal keeping of intoxicating liquors; and is supported by proof that the tenement was used by the defendant for the illegal sale and illegal keeping of in- toxicating liquors. Commonwealth v. Ryan, 138 Mass. 436 (1884). 2. At the trial of a complaint for keeping and maintaining a common nuisance, the evi- dence for the government tended to show that two persons went into an apothecary shop kept by the defendant, and asked him for soda; that he asked them what syrup they would have, and one of them said, "Whiskey; " and that the defendant then delivered to them two drinks of soda and whiskey, for which one of them paid. Held, that it could not be said, as matter of law, that there was not sufficient evidence to warrant a verdict of guilty. Com- monwealth V. CooUdge, 138 Mass. 193 (1884). 3. A person may be convicted of keeping and maintaining a common nuisance, under the Pub. Sts. c. 101, §§ 6, 7, upon evidence of illegal sales of intoxicating liquors, although he has a license for the sale of such liquors. Com- monwealth v. Murray, 138 Mass. 508 (1885). 4. At the trial of a complaint for keeping a common nuisance, there was evidence for the government that the premises of the defend- ant were searched, under a warrant, and only a bottle half full of whiskey was found, and a glass smelling of beer ; that the defendant's mother occupied a portion of the defendant's building, where she kept house by herself, and which could be reached from the defend- ant's store only by passing through the tene- ment where the defendant's family lived; and that the mother's tenement was searched, under another warrant, at the same time as the defendant's, and two cases of lager beer were found there, and a quart of whiskey. Held, that the defendant had no ground of exception to the admission of the evidence relating to the search of the mother's tene- ment and to what was found there, although the liquor taken on the warrant was after- wards returned to her by order of court. Commonwealth v. McCullow, 140 Mass. 370 (1886). 5. A complaint on the Pub. Sts. c. 101, §§ 6, 7, alleging that the defendant kept and maintained a common nuisance, to wit, a " tenement " in N., used for the illegal sale and illegal keeping of intoxicating liquoi's, is supported by proof that he maintained such a nuisance in a house consisting of a single room, a small part of which was situated in W., a town adjoining N., and the remaining part in N., in which part the nuisance was kept. Commonwealth v. Hersey, 144 Mass. 297 (1887). (h) Public Bars. 1. A person, licensed as a common victual- ler, and to sell intoxicating liquors to be drunk on the premises, may be convicted of keeping a " public bar," within the Pub. Sts. c. 100, § 9, cl. 5, if he sells and delivers, not in connection with food, intoxicating liquors indiscriminately to such persons as may call for them, over a bar or counter, although there is no public display of the liquors, and the bar is also used for luncheon purposes. Com- monwealth V. Rogers, 135 Mass. 536 (1883). 2. At the trial of a complaint for keeping a tenement used for the illegal sale and illegal keeping, of intoxicating liquors, it appeared that the defendant was licensed as an inn- holder, and to sell intoxicating liquor to be drunk on the premises. The government of- fered evidence tending to prove that a public bar was kept thereon. The defendant's evi- dence tended to show that lunch was kept upon the bar; and, to show that this was not done in fraud of the law, the defendant offered to prove that he was ignorant that the keeping or not keeping of lunch on the bar made any difference in law. Held, that the evidence was inadmissible. Commonwehlth v. Everson, 140 Mass. 292 (1885). 3. A person licensed as an innholder, and to sell intoxicating liquors to be drunk on the premises, may be convicted of keeping a "pub- lic bar," within the Pub. Sts. c. 100, § 9, cl. 5, if he sells and delivers, not in connection with food, intoxicating liquors indiscriminately to such persons as may call for them, over a bar, although the bar is also used for luncheon pur- poses. Commonwealth v. Everson, 140 Mass. 292 (1885). (i) Illegal Transportation. 1. At the trial of a complaint, charging F. with bringing into the town of S. certain in- toxicating liquors, he " having reasonable cause to believe that said liquors were intend." ed to be sold in violation of law iij said S.," the evidence showed that some one carried on the express business between S. and B. under the name of " F.'s Express," having an office in S. The government contended that F. was the proprietor, and, for the purpose of showing this, asked a witness what he had seen F. "doing with reference to this place." Held, that the question was com- petent. Commonwealth v. Fisher, 138 Mass. 504 (1885). 2. At the trial of a complaint for bringing into the town of S. certain intoxicating liquors, the defendant having reasonable cause to be- lieve that the liquors were intended to be sold in S. in violation of law, it appeared that a constable of S. went to the defendant's ex- press office with a search-warrant; and that he found there a large quantity of intoxicating liquors in jugs and bottles. A ban-el con- taining the bottles and several of the jugs had a tag attached with the initals of a name and " S." on it in writing, and, in print, " from" a certain dealer in liquors in a city between which and S. the defendant's express business was carried on. Another case of liquors was marked with the name of a person and " S." Other jugs and packages had no marks. Some of the jugs containing liquors were in locked boxes, and, when the officer asked the defend- ant for the keys, he replied that "he did not 933 SPIRITUOUS LIQUORS, III. 934 know anything about any keys." There was also evidence that the defendant had been seen at diilerent times carrying jugs from the railroad depot to his express office. Held, that it could not be said, as matter of law, that the jury were not justified in finding the defendant guilty. Commonwealth v. Fisher, 138 Mass. 504 (1885). (j) Forfeiture Proceedings. 1. A recital, in a notice to all persons claiming any interest in intoxicating liquors seized under St. 1876, c. 162, that the seizure was made under a warrant issued by a district eom't, when in fact it was made under a war- rant issued by a special justice thereof, does not invalidate the proceedings. Commonwealth V. Intoxicating Liquors, 128 Mass. 72 (1880). 2. A complaint alleged that, on September 24, 1878, intoxicating liquors were kept and deposited by A. in a certain building for sale in violation of law. The seai'ch-warrant is- sued under the complaint recited that the complaint was made on September 24, 1878. The jurat affixed to the complaint was dated "this twenty-fourth day of September in the year one thousand eight hundred and sev- enty- ." The court, to a special justice of which the complaint was addressed, was established in 1874. Helil, that the jurat was not the only evidence of the time of making oath to the complaint; and that the record showed that the complaint was sworn to on September 24, 1878. Commonwealth v. Intox- icating Liquors, 128 Mass. 72 (1880). 3. Certiorari does not lie to quash the pro- ceedings of a police court in issuing a warrant for the seizure of intoxicating liquors; such proceedings are according to the course and principles of the common law, and may be the subject of appeal or exceptions, or, in a proper case, of a writ of error. Lynch v. Crosbj/, 134 Mass. 313 (1883). 4. A recital, in a notice to all persons claim- ing any interest in intoxicating liquors seized under the Pub. Sts. c. 100, that the warrant was " issued by the clerk " of the court to which the complaint was addressed, when in fact the warrant was issued by the justice of the court, does not invalidate the proceed- ings. Commonwealth v. Intoxicating Liquors, 135 Mass. 519 (1883). 5. A warrant, under the Pub. Sts. c. 100, § 30, to search a certain building, " and the out- buildings within the curtilage thereof," does not authorize the search of another building, not in the same enclosure with the one spe- cifically mentioned in the warrant, but sepa- rated from it by a narrow passageway, the top of which is covered by rough boards, each building and the passageway having a separate entrance from the street. Commonwealth v. Intoxicating Liquors, 140 Mass. 287 (1885). 6. A complaint, under the Pub. Sts. c. 101, §§ 6, 7, alleged that the defendant maintained a certain common nuisance, to wit, a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors. The warrant issued upon the complaint recited that the complaint was " for maintaining a common liquor nuisance." Held, that the warrant sufficiently recited the substance of the accu- sation of the complaint. Commonwealth v. Ferden, 141 Mass. 28 (1886). 7. A complaint made by " Freewaldau C. Thayer," signed " F. C. Thayer, complain- ant," and certified by the clerk of the court to which it is addressed to have been "re- ceived and sworn to before said court," suffi- ciently appears to be signed and sworn to by the complainant. Commonwealth v. Intoxicat- ing Liquors, 142 Mass. 470 (1886). 8. The oath of one of the complainants, re- quired by the Pub. Sts. c. 100, § 31, to au- thorize the issue of a warrant to search a dwelling-house for liquor, does not form a part of the complaint, although incorporated there- in ; and, at the trial to determine whether the liquor seized shall be forfeited, the govern- ment is not required to prove that intoxicating liquor has been sold in the house contrary to law within one month prior to the filing of the complaint. Commonwealth v. Intoxicating Liquors, 142 Mass. 470 (1886). See Certiorari, pi. 1. III. Licenses. See ante, II. (f), pi. 1. 1. If any notice is necessary to a licensee, that his license to sell intoxicating liquors has been revoked by the mayor and aldermen of a city, verbal notice is enough. Common- wealth V. Hamer, 128 Mass. 76 (1880). 2. Under St. 1875, c. 99, § 12, authorizing the mayor and aldermen of a city, by whom a license to sell intoxicating liquors has been issued, to declare a license forfeited upon proof satisfactory to them of a violation of its conditions, after notice to the licensee and reasonable opportunity for him to be heard by them, a licensee can be convicted of keep- ing intoxicating liquors for sale in violation of law upon the production of the record of the mayor and aldermen, showing that, before the day named in the complaint, the board declared his license forfeited, after a hearing on a verbal complaint made to the board, the licensee being present with counsel, and after a finding that he had violated the provisions of his license. Commonwealth v. Hamer, 12S Mass. 76 (1880). 8. It is no ground of objection to the con- stitutionality of St. 1879, c. 297, that the defendant in an action, under that statute, to recover for injuries caused by the intoxication of a person to whom he sold intoxicating liquors, had a license to sell such liquors, and had not violated his license. A license is not a contract. It imports, merely, an authority to sell according to law, and subject to all the limitations, restrictions, and liabilities which the law imposes. Moran v. Goodwin, 130 Mass. 158 (1881). 4. At the trial of a complaint for keeping intoxicating liquors with intent unlawfully to sell the same, the minutes of a vote of the 935 SPIRITUOUS LIQUORS, III. 93G selectmen, amended in court by permission of the judge, in the absence of the other select- men, by one of the selectmen who acted as clerk of the board, so as to show a valid revo- cation of a license to sell intoxicating liquors issued by the selectmen to the defendant, are inadmissible in evidence to prove such revoca- tion. Commonwealih v. McGarry, 135 Mass. 553 (1883). 5. Under the Pub. Sts. c. 100, § 5, and the St. of 1882, c. 164, the mayor of a city, in signing a license for the sale of intoxicating liquors, performs a merely ministerial duty; and, if a license is granted by the board of aldermen, the signing by the mayor may be enforced by mandamus. Braconier v. Pack- ard, 136 Mass. 50 (1883). 6. It is no objection to the validity of a license for the sale of intoxicating liquors, granted by the board of aldermen of a city, that the board did not act in accordance with their usual modes and their rules of procedure, if the rules were suspended. Braconier v. Packard, 136 Mass. 50 (1883). 7. A notice, published in a newspaper, of an application for a license to sell intoxicating liquors, gave the first name and surname and the initial letter of the middle name of the ap- plicant, the class of the license applied for, and described his place of business as " in a build- ing known as K.'s Block, on the easterly side of M. Street, at the corner of S. Street." The applicant had a druggist's sign in front of the shop occupied by him in K.'s Block, which shop was the third from the corner of the two streets; neither the block nor the street was numbered; and the applicant wrote his name as it appeared in the published no- tice. Held, that the notice was a sufficient compliance with the Pub. Sts. c. 100, § 6. Braconier v. Packard, 136 Mass. 50 (1883). 8. A license to a common victualler, to sell intoxicating liquors to be drunk on the prem- ises, is no defence to a complaint for exposing and keeping for sale intoxicating liquors with intent unlawfully to sell the same in this Com- monwealth, if the licensee keeps a public bar, or maintains a partition which interferes with a view of the interior of the premises, in vio- lation of the Pub. Sts. c. 100, § 9, cl. 5, and § 12; and of the St. of 1882, c. 259, § 1. Cojn- monweallh v. Salmon, 136 Mass. 431 (1884). 9. A license to sell intoxicating liquors, which sets forth the name of the street only, and not "the building in which the business is to be carried on," as required by the Pub. Sts. c. 100, § 5, is defective, and the licensee cannot justify sales under it; and it is im- material that the defect is the fault of the selectmen who granted it. Commonwealth v. Merriam, 136 Mass. 433 (1884). 10. A certificate, made upon a license to sell intoxicating liquors, authorizing the licen- see to change his place of business, in order to have any effect, must be authenticated by the signatures of the chairman of the select- men and of the town clerk, as required for the original license. Commonwealth v. Salmon, 136 Mass. 431 (1884). 11. Section 7 of the Pub. Sts. c. 100, giving a district court authority to revoke a license granted for the sale of intoxicating liquors, upon the application of an owner of real estate adjoining the premises in which the license is to be exercised, is constitutional, although it requires the city or town in which the license is revoked to refund to the licensee the money paid by him for such license. Young v. Blais- dell, 138 Mass. 344 (1885). 12. Section 7 of the Pub. Sts. c. 100, giving a district court authority to revoke a license granted for the sale of intoxicating liquors, upon the application of an owner of real estate adjoining the premises in which the license is to be exercised, by implication pro- vides for notice to the licensee, and that the applicant shall prove that he is the owner of adjoining real estate. Young v. Blaisdell, 138 Mass. 344 (1885). 13. No appeal lies from the judgment of a district court, under the Pub. Sts. c. 100, § 7, revoking a license granted for the sale of in- toxicating liquors, upon the application of an owner of real estate adjoining the premises in which the license is to be exercised. Young V. Blaindell, 138 Mass. 344 (1885). 14. The Pub. Sts. c. 100, § 7, do not au- thorize a district court to render a judgment for costs against a licensee, whose license for the sale of intoxicating liquors is revoked, up- on the application of an owner of real estate adjoining the premises in which the license is to be exei-cised. Young v. Blaisdell, 138 Mass. 344 (1885). 15. If a person applies for, accepts, and acts under a license to sell intoxicating liquors, in which he is described as a common victualler, he cannot set up, in defence of a complaint for the violation of a condition of his license, that he is not a duly licensed common victual- ler. Commonwealth v. liourke, 141 Mass. 321, (1886). 16. A license for the sale of intoxicating liquors contained the following clause : " The licensee is required to close permanently all entrances to the licensed premises other than those from the public street or streets upon which such premises are located." The licensed premises were a saloon thirty feet deep, with a door fronting on the street upon which the premises were located, and opening into the saloon ; and there was another door, which was put in at the time the building was constructed, at the rear of the saloon, opening upon a driveway from the street to the rear, and which was not kept closed. Held, that these facts constituted a violation of the license. Commonwealth v. Ferden, 141 Mass. 28 (1886). 17. The Pub. Sts. c. 7, § 57, providing that " whoever .... at any national, state, or mu- nicipal election .... knowingly gives more than one ballot at one time of balloting at such election, shall be punished," do not ap- ply to ballots given, at a municipal election of a city, upon the question of granting licenses for the sale of intoxicating liquors. Common- wealth V. Howe, 144 Mass. 144 (1887;). 18. If a person, who is charged with keep- ing intoxicating liquors for sale unlawfully, 937 STATUTE. 9S8 relies upon a license authorizing him to sell such liquors, dated before the day of the al- leged oifence, the government may show that the bond required by the Pub. Sts. c. 100, was not filed, the license fee was not paid by the defendant, and the license was not issued, un- til after the day of the alleged offence ; and such license affords no justification for the de- fendant's acts. Commonwealth v. Welch, 114 Mass. 356 (1887). IV. Powers op Towns. A town may vote to appropriate money for the enforcement of the liquor law, and to em- ploy agents and counsel to suppress the sale of intoxicating liquors. Dunn v. Framingham, ri:i Mass. 430 (1862;. STABLE KEEPER. See Lien, L ; Liveky Stable. STATE. See Commonwealth. STATUTE. For cases involving questions of the consti- tutionality of statutes, see Constitutional Law. See also Nuisance, pi. 18. — 1. The repeal of a general corporation law by a statute substantially re-enacting and ex- tending its provisions does not terminate the existence of corporations organized under it. Held, therefore, that St. 1874, c. 375, repeal- ing Gen. Sts. o. 32, relating to corporations, was not intended to affect existing corpora- tions. United Hebrew Association v. Benshimol, 130 Mass. 325 (1881). 2. That part of Gen. Sts. c. 85. § 1, author- izing a third person to recover treble the value of money lost by gaming, is a penal statute. Cole V. Groves, 134 Mass. 471 (1883). 3. The St. of 1861, c. 100, does not prevent the owner of land adjoining a railroad from acquiring a right to a private way across the railroad by twenty years' use thereof. Fisher V. New York §• New England Railroad, 135 Mass. 107 (1883). 4. Under the St. of 1862, c. 176, § 17, an order of the Governor and Council, providing that an outward bound vessel, liable to pilot- age it inward bound, shall be held to pay pilotage to the pilot offering his services, whether such services are accepted or not, is valid. Martin v. Witherspdon, 135 Mass. 175 (1883). 5. Under the St. of 1879, c. 291, § 2, which provided that the Governoi', with the advice and consent of the Council, should appoint nine persons, who should constitute a State board of health, lunacy, and charity, it was competent to appoint a woman a member of such board. Opinion of the Justices, 13b Mass. 578 (1884). 6. If the language of a section of the Public Statutes is unambiguous, the court will not, in determining its meaning, consider the lan- guage of the statutes of which it is a re- vision. Bent V. Hubbardslon, 138 Mass. 99 (1884). 7. The St. of 1881, c. 188, which provides that no person actually supporting himself and his family shall be deemed a pauper, because jof the commitment of his wife or minor child to a lunatic hospital, etc., and his inability to maintain them thei-ein, is prospective only in its operation. Woixesler v. Barre, 138 Mass. 101 (1884). 8. The St. of 1791, c. 32; incorporated a navigation company ; authorized it to build such dams, locks, and canals as were necessaiy for its purposes; and provided a special rem- edy for all persons injured in their property by the works of the corporation, by an appli- cation to a certain court. The St. of 1880, c. 148, legalized the existing dams, locks, and canals of the corporation ; authorized it to construct other dams, locks, and canals for the purpose of creating a water power to use or to lease for manufacturing purposes; pro- vided that, for those purposes, the corpoi'ation should have all the powers and privileges, and be subject to all the duties, liabilities, and re- strictions, set forth in the general laws relat- ing to manufacturing and other corporations; relieved the corporation from the obligation to support its dams, locks, and canals for the purposes of navigation; and discontinued its canal as a navigable highway. Held, that the remedy of a person injured by the raising of its dam by the corporation, after the passage of the later statute, was by a complaint under the mill act. Pub. Sts. c. 190. Cnmins v. Turner's FaUs Co., 138 Mass. 222 (1885). 9. Section 18 of the Pub. Sts. c. 126, giv- ing a right of action against the grantor in a deed to an assignee of the grantee, for breach of a covenant against incumbrances, where the incumbrance " appears of record," applies only where the incumbrance is of record in the registry of deeds; and a lien for unpaid taxes which only appears in the records of a city or town is not within the statute. Carter v. Peak, 138 Mass. 439 (1885). 10. The Prov. St. of 1692-93 (5 W. & M.), c. 13, § 2, providing that any one building on his own land in Boston might set half his par- tition wall on his neighbor's land, and that the neighbor, when he should build, should pay for half of so much of the wall as he should build against, has never been in force in this Commonwealth. Wilkins v. Jewelt, 139 Mass. 29 (1885). 11. Punctuation maybe disregarded in con- struing a statute. Martin v. Gleason, 139 Mass. 183 (1885). 939 STATUTE. 940 12. If the language of a section of the Pub- lic Statutes is ambiguous, or susceptible of two constructions, the court, in determining its meaning, will consider the language of the statutes of which it is a revision. Pratt v. Street Commissioners, 139 Mass. 559 (1885). 13. The St. of 1875, c. 200, provided that the county commissioners of Hampshire should make certain public improvements, paying the cost in the first instance out of the county treasury; that, after the completion of the work, this court should appoint three spe- cial commissioners, who should determine and decree what towns, persons, and corporations, including the county, were benefited by said work, and what proportion of the cost of the work should be paid severally by them ; that such commissioners should make their report to this court; and that, when accepted and judgment entered thereon, it should be abso- lutely binding upon all parties interested; but that any party affected by the decree and determination of the commissioners might appeal to a jury. Held, that the special com- missioners were not authorized by the statute to reserve questions of law for the determi- nation of this court. County Commissioners, petitioners, 140 Mass. 181 (1885). 14. The St. of 1881, c. 110, (Pub. Sts. c. 49, § 110,) allowing mortgagors and mortgagees, when mortgaged land is taken for public uses, to join in a petition for damages, is remedial in its character, and applies to proceedings begun after it took efEect, although the land was previously taken. Wood v. Westborough, 140 Mass. 403 (1886). 15. Where the terms of a statute of one State which have received a judicial construc- tion are used in a later statute in another State, that construction is to be given to the later statute. Pratt v. American Bell Tele- phone Co., 141 Mass. 225 (1886). 16. The St. of 1867, c. 73, in § 1, author- ized an aqueduct company to take and use the waters of two ponds named, and of a certain lake. In § 5, it was provided that nothing in the act should be construed to au- thorize the company " to raise the water of any of said ponds above high-water mark, nor to drain any of them below low-water mark." Held, that the restriction applied to the lake as well as to the ponds. Brickett v. Haverhill Aqueduct, 142 Mass. 394 (1886). 17. Under the St. of 1882, c. 121, § 1, pro- viding that the Treasurer of the Common- wealth shall assign to the corporation therein named all the shares of the capital stock of the corporation which are owned by the Com- monwealth, or which belong to funds over which the Commonwealth has exclusive con- trol, in exchange for certain bonds of the corporation, at a rate specified, and that there- upon the corporation " shall hold and dispose of the shares of stock so assigned to it as its absoiute property," the corporation may divide such shares among its stockholders. Com- monwealth V. Boston §■ Albany Railroad, 142 Mass. 146 (1886). 18. The St. of 1885, c. 352, § 6, provides that § 9 of the Pub. Sts. c. 57, (which relates to the sale of adulterated milk,) " is hereby amended so as to read as follows." The St. of 1886, c. 318, § 2, provides that § 9 of the Pub. Sts. e. 57, " is hereby amended so as to read as follows." In each section, after the words quoted, there follows a sentence which covers the whole subject of the original sec- tion. Held, that the St. of 1886, c. 318, § 2, was a valid enactment. Commonwealth v. Kenneson, 143 Mass. 418 (1887). 19. The St. of 1875, c. 200, provided that the county commissioners of Hampshire should make certain public improvements on the banks of a river, and directed " the ex- penses and charges" to be paid out of the treasury of the county; that upon the comple- tion of the work they should make a record in detail of their doings, and of the amount of "actual expenditure" incurred; that the amount of "such expenditures" should be borne by the county, and by such towns, per- sons, and corporations, and iu such propor- tions, as commissioners to be appointed by this court, upon petition by the county com- missioners, should determine; that the com- missioners so appointed should determine and decree what towns, persons, and corporations, including the county, were benefited, and what proportion of the " cost of said work " should be paid by them severally; and that any person affected by the decree, and dis- satisfied with the determination of the com- missioners, might appeal to a jury. The county commissioners made the improve- ments, the last expense for the same being incurred prior to September 1, 1876. On August 4, 1884, they made a record, in which they charged as their expenditure a sum com- posed of this amount with compound interest to date. On August 5, 1884, they filed a peti- tion for the appointment of commissioners. Such commissioners were appointed, and they made a decree, from which several appeals were taken. Held, that the appeal of one of the parties did not open for the consideration of the jury the question of what parties were benefited, and the amount to be assessed to each, but only the questions whether it was benefited, and whether the amount assessed to it was too great. Held, also, that laches which would prevent an assessment against the parties benefited was not imputable to the county by reason of delay on the part of the county commissioners in filing their petition for the appointment of commissioners. Held, also, that simple interest only upon the sums expended by the county commissioners could be included as part of the expenditure to be assessed. Held, also, that the record of the county commissioners was conclusive only as to the amount and propriety of the expendi- tures; and could be revised upon the ques- tion of what interest should be allowed. County Commissioners, petitioners, 143 Mass. 424 (1887). 20. It is within the constitutional power of the Legislature to enact a statute which has the effect to pass a title to letters patent of the United States. Barton v. White, 144 Mass. 281 (1887). 941 STIPULATION. 942 STATUTE OF DISTRIBUTIONS. See Descent. STATUTE OF FKAUDS. See Frauds, Statute of. STATUTE OF LIMITATIONS. See Limitation. STATUTE OF USES. See Trust. STEAMBOAT. See Carrier. STEAM-ENGINE. 1. A license " to set up and run a station- ary steam-engine, for the purpose of driving machinery used in generating electricity," is no bar to an action, by the owner of a dwell- ing-house within five hundred feet of the licensee's works, for a nuisance occasioned by noise, jarring, and vibration caused by the machinery, as distinct from the engine. Quinn V. Lowell Electric Light Corporation, 140 Mass. 106 (1885). 2. The Pub. Sts. c. 102, §§ 40, 47, prohibit the erection of a stationary engine within five hundred feet of a dwelling-house or public building, without a license, in any city or town in which the St. of 1862, c. 74, has been adopted at a legal meeting of the city council of the city or the inhabitants of the town called for that purpose. Held, that the re- quirement that the adoption of the statute shall be at a meeting called for the purpose is limited to an adoption by the inhabitants of a town, and does not apply to the action of a city council. Quinn v. Lowell Electric Light Corporation, 140 Mass. 106 (1885). <5. A person, by attending at the hearing upon an application to the board of aldermen of a city for a license, under the Pub. Sts. c. 102, § 47, to set up and run a stationary steam-engine, and not objecting to the insuf- ficiency in time of the notice of the hearing, waives longer notice to himself; and he cannot object that others had not due notice. Quinn V. Middlesex Electric Light Co., 140 Mass. 109 •<1885). 4. A license, under the Pub. Sts. c. 102, § 47, to set up and run a stationary steam- engine upon certain premises in a city, passes, without assignment, to a purchaser of the property. Quinn v. Middlesex Electric Light Co., 14b Mass. 109(1885). 5. A license, under the Pub. Sts. c. 102, §47, to set up and run a stationary steam- engine of a specified horse-power, does not import authority to set up and run three such engines, although their combined power is no greater than that of the single engine. Quinn V. Middlesex Electric Light Co., 140 Mass. 109 (1885). 6. The owner of a brick building in a city, used as a manufactory of shoes, and situated within five hundred feet of a dwelling-house, was licensed by the board of aldermen of the city " to erect for use a stationary engine, to be propelled by steam power, at his shoe manufactory on P. Street." Held, that the license sufficiently complied with the provis- ions of the Pub. Sts. c. 102, § 40. Alter v. Dodge, 140 Mass. 594 (1886). 7. In an action for a nuisance, namely, the maintenance and use of a steam-engine, boil- ers, and machinery, from May to November, 1883, in violation or in excess of a license to the defendant, the record of a judgment re- covered by the plaintifE in a former action against the defendant for the same nuisance, from December, 1882, to May, 1883, the last two months only of which period were cov- ered by a license, is inadmissible in evidence. Quinn v. Lowell Electric Light Corporation, 144 Mass. 476 (1887). 8. In an action for a nuisance, namely, the maintenance and use of a steam-engine, boil- ers, and machinery, from May to September, 1883, on the defendant's premises, and within five hundred feet of the plaintiff's dwelling- house, it appeared that, on September 1, the defendant sold and conveyed said premises, and ceased to occupy the same or carry on business therein. The plaintifE was allowed to put in evidence, by the testimony of several witnesses, the amount of jarring, trembling and shaking during the time of the defend- ant's occupancy up to September 1, 1883; and the plaintifl was then asked by his counsel what was the amount of jarring, trembling, and shaking in October, 1883, after the de- fendant's occupation had ceased, as compared with what it had been through the summer of 1883, for the purpose, after getting the plain- tiff's testimony as to the comparative amount of the two periods, to introduce the testimony of other persons who visited the premises in October, 1883, as to the amount of jarring, shaking, and trembling at that time. Held, that the question to the plaintiff was rightly excluded. Quinn v. Lowell Electric Light Cor- poration, 144 Mass. 476 (1887). STIPULATION. See Quieting Title. 943 STEEET RAILWAY. 944 STOCKJOBBING. 1. An oral agreement to share equally in the profits and losses resulting from the pur- chase and sale of stock already owned by one of the parties to the agreement, he having bought it through a broker on a margin, is not a contract for the sale of goods, within the statute of frauds, nor within the statutory pro- vision against stockjobbing, Gen. Sts. c. 105, §§5, 6 ; nor is it a wager contract. BuUard V. Smith, 139 Mass. 492 (1885). 2. If a broker, at the time he sells a certain number of shares of stock, has in his posses- sion certificates for that number of shares of such stock which he was duly authorized by his principal to sell for him, this takes the case out of the statutory provision against stockjobbing, Gen. Sts. c. 105, § 6. Frazier v. Simmons, 139 Mass. 531 (1885). 3. If a person contracting to deliver a cer- tain number of shares of stock at a future day has that number of shares in his possession or control when he makes the contract, the sale of such shares by him before the date of de- livery mentioned in the contract does not make the original contract illegal, under the Pub. Sts. c 78, § 6. Pratt v. American Bell Telephone Co., 141 Mass. 225 (1886). STOPPAGE IN TRANSITU. See Sale, IV. STREET. See Way. STREET RAILWAY. As to liability for running over a person, see Negligence. 1. The provision of Gen. Sts. c. 68, § 41, de- claring that every act of incorporation shall be subject to amendment, alteration, or repeal at the pleasure of the Legislature, makes valid St. 1872, c. 342, incorporating the Union Freight Railroad Co., and authorizing it to take pos- session of the tracks of the Marginal Freight Railway Co., a corporation previously char- tered, upon payment of compensation; and it is immaterial that the charter of the Marginal Co. contained a clause declaring it to be sub- ject to the restrictions and liabilities contained in the general laws relating to street railways : this does not withdraw it from the operation of Gen. Sts. c. 68, § 41, which declares all acts of incorporation subject to its provisions. Greenwood v. FriigJit Co., 105 U. S. 13 (1881). 2. Under St. 1871, o. 381, § 21, providing that street railway corporations " shall be lia- ble for any loss or injnry that any person may sustain by reason of any carelessness, neglect, or misconduct of its agents and servants, in the construction, management, and use of its, tracks," a husband may maintain an action against such a corporation for loss of services and society of and expense of curing his wife, who is injured by a defective construction of its tracks ; and it is immaterial that the tracks were constructed to the satisfaction of the superintendent of streets. Osgood v. Lynn Sf Boston Railroad, 130 Mass. 492 (1881). 3. The provision of St. 1877, c. 234, § 3, that any person injured by a defect in a high- way may bring an action of tort therefor in the Superior Court, does not apply to an action of tort, under St. 1871, c. 381, § 21, against a street railway corporation, for an injury caused by a defective construction of its tracks. Brookhouse v. l/nion Railway, 132 Mass. 178 (1882). 4. A street railway car, which is run on Sunday for the purpose of accommodating the public generally and earning money from any one who may see fit to travel upon it, is run in violation of the Gen. Sts. c. 84, §§ 1, 2, although some of the passengers are lawfully travelling. Day v. Highland Railway, 135 Mass. 113 (1883). 5. A conductor of a street railway car, who is performing the ordinary duties of his em- ployment on Sunday, is both laboring and travelling in violation of the Gen. Sts. c. 84, §§ 1, 2; and if, while standing on the step on the side of an open car, he is injured by being struck by a car of another corporation passing on a parallel. track, his illegal acts necessarily contribute to cause his injury, and preclude his maintaining an action therefor, notwith- standing the St. of 1877, c. 232. Day v. Highland Railway, 135 Mass. 113 (1883). 6. If a corporation, owning several lines of street cars, has a practice of giving transfer checks to passengers, who, after having ridden on one of its lines, desire to ride on another line, such checks differing in language and color according to the line on which they are to be used, and not being good on any line except the one indicated, and a passenger, who is familiar with this practice, receives, by the mistake of the conductor of a car on which he has ridden, without reading it, a wrong ti'ansfer check, which, upon presentation to the conductor of a car on the second line, is declined on that ground, the passenger can- not, after having refused to pay his fare to the second conductor and been by him ex- pelled from the car, maintain an action against the corporation for such expulsion. B7-ad- shaw V. South Boston Railroad, 135 Mass. 407 (1883). 7. The board of railroad commissioners, in determining, under the Pub. Sts. c. 113, §§ 50, 51, the rate of compensation to be paid by one street railway company for the use of the tracks of another company, adopted, as an element, the interest on the cost of constnic- tion of the latter company's railroad, and in- cluded in the cost of such construction a sum which the latter company paid to a bridge corporation, over whose bridge its tracks were laid, "in full compensation or toll" for the 945 STREET RAILWAY. 946 right of using the bridge. The bridge was made a free bridge before the tracks upon it were used by the company required to make the compensation. Held, that, whether the sum paid to the bridge corporation could legally be regarded as part of the cost of construction of the road or not, the company required to make compensation showed no ground of objection to the acceptance of the award. Cambridge Railroad v. Charles River Railway, 139 Mass. 454 (1885). 8. A street railway corporation, -which has duly filed the certificate required by the St. of 1871, c. 381, § 6, stating that the amount of its capital stock has been unconditionally subscribed for by responsible parties, and that fifty per cent of the par value of each share thereof has been actually paid into its treasury in cash, cannot escape liability upon promis- sory notes given in payment for the building of its road, on the ground that fifty per cent of the par value of each share of its capital stock had not in fact been paid in at that time. Kelley v. Newburyporl Horse Railroad, 141 Mass. 496 (1886). 9. The St. of 1872, c. 11, § 1, incorporated a street railway company within a certain city and town, "subject to all the duties, restrictions, and liabilities set forth in all general law.s which now are or may hereafter be in force applicable to street railway corpora- tions; provided, however, that said city or town is hereby authorized and empowered to contract with said railway corporation con- cerning the construction, maintenance, and operation of said railway, upon such terms as it may agree with said railway corporation, any laws now existing to the contrary notwith- standing." Held, that the statute did not authorize a contract by the city excluding the use of the tracks of the corporation by another corporation under the provisions of the St. of 1874, c. 29, § 12 (Pub. Sts. c. 113, § 48). New Bedford Sireet Railway v. Acushnei Street Railway, 143 Mass. 200 (1887). 10. The tracks of a street railway corpora- tion extended through a city into an adjoining town. The city granted a license to another corporation to enter upon and use a portion of said tracks lying wholly within the limits of the city. Held, that, under the Pub. Sts. c. 113, § 49, no application to the selectmen of the town for permission to use such portion of said tracks was necessary. New Bedford Street Railway v. Acushnet Street Railway, 143 Mass. 200 (1887). 11. If the driver of a street railway car, owned by a corporation, on being relieved by another driver, immediately leaves the car for the purpose of getting a meal, he is while so leaving engaged in the business of the cor- poration, and an indictment, under the Pub. Sts. c. 112, § 212, will lie against the corpora- tion for the loss of the life of a pas-senger caused by the gross negligence or carelessness of the driver while so leaving. Commonwealth V. Brockton Sireet Railway, 148 Mass. 501 (1887). 12. An indictment, on the Pub. Sts. c. 112, § 212, against a street railway corporation, which alleges that by reason of the unfitness, gross negligence, and carelessness of A., the servant of the defendant corporation, and en- gaged in its business, the life of a passenger on the railway is lost, sufficiently alleges that the life was lost by reason of the unfitness, gross negligence, and carelessness of an agent of the coi-poration. Commonwealth v. Brock- ton Street Raihoay, 143 Mass. 501 (1887). 13. In an action against a street railway corporation for personal injuries, an agent of an insurance company testified for the defend- ant, that he solicited from the plaintiff, at a date subsequent to the injury, an application for a policy in the company he represented; that the plaintiif made such application, and he had with him on the witness stand a blank application such as was used by him at the time ; that he asked the plaintiff the usual questions, and wrote down the answers on the blank, which the plaintiff afterwards read and signed ; that the original blank ap'plicatiou thus filled and signed was at the office of the company in another State; that he had made efforts to get the original from that office, but, instead of the original, what purported to be a copy thereof was sent him, which he produced; and that it was an exact copy of the original signed by the plaintiff. The de- fendant then offered the copy in evidence; and the judge admitted it. Held, that the plaintiif had no ground of exception. Williamson v. Cambridge Railroad, 144 Mass. 148 (1887). 14. Before the enactment of the St. of 1886, c. 140, authorizing such an action, a street railway corporation was not liable to an action of tort for the loss, by reason of its negligence or that of its servants, of the life of a person, whether a passenger or not, Holland v. Lynn §• Boston Railroad, 144 Mass. 425 (1887). Giinn v. Cambridge Railroad, 144 Mass. 430, note (1887). 15. Under the Pub. Sts. c. 113, § 47, pro- viding that a commutation check issued by a street railway company in Boston shall entitle the holder " to a passage on the same day only in any car run by any other company between any two points in said city, but not to a passage over the same route on which the check was issued or a route parallel thereto and between and including two common points," the holder of such a check, in re- turning towards his starting point, is not entitled to be carried upon the check in the car of another company, whose route is sub- stantially parallel to the route of the company issuing the check, and is between and includes two common points, although a wide detour is made at one place in the route of the latter company between the two common points. Cronin v. Highland Street Railway, 144 Mass. 249 (1887). 16. A person who enters an open street car, the seats of which are all occupied by passen- gers, and, without objection by the conductor of the car, who collects a fare of him, stands in the space between the passengers occupy- ing one seat and the back of the next seat, holding on to the latter with his hands, is not precluded, by reason of having taken such a 947 SUNDAY. 948 position, from maintaining an action against the corporation owning the car for injuries occasioned by being thrown from the car while it is being driven around a curve in the street. Lapointe v. Middlesex Railroad, 144 Mass. 18 (1887). SUBORNATION OF PERJURY. See Perjuky. SUBROGATION. 1. A bank, which held the note of a bank- rupt corporation, proved the note in bank- ruptcy against the corporation, and, before it received any dividend, brought an action on the iiote against a surety thereon, and obtained judgment. The surety did not pay or tender to the bank the full amount due on the note. Under a resolution of the cred- itors, confirmed by the bankruptcy court, the estate of the corporation was transferred to trustees, of whom the surety was one, for the purpose of being wound up. The trustees obtained leave from the court to sell the prop- erty by public sale, and it was bid off in be- half to the creditors for a sum which was its fair market value at that time, and was after- wards conveyed to a new corporation which was formed by the creditors of the old cor- poration. The stockholders actually paid in a large amount of the capital stock at its par value in cash, and the balance of the stock was sold by public auction. The money so received was paid to the trustees in bank- ruptcy, and distributed among the creditors of the old corporation according to their re- spective interests. The bank paid a certain sum for a number of shares in the new cor- poration, and received dividends in bank- ruptcy to an equal amount. This sum was indorsed on the note, and the surety paid the balance due on the note in cash. At the time of payment, the bank assigned and de- livered to the surety all the property which it held as security for the payment of the note, but declined to transfer the stock in the new corporation. The surety then brought a bill in equity against the bank to compel such transfer. Held, that the stock in question was never held by the bank as collateral se- curity for its claim against the old corpora- tion; and that the bill could not be main- tained. Stafford v. New Bedford Savings Bank, 132 Mass. 315 (1882). 2. A. was insured against loss by fire on a house, by a policy of insurance payable in case of loss to B., who was in fact a mort- gagee of the premises insured. After an alienation of the premises by A., and after an entry by B. for breach of condition of his mortgage, so that the policy, by its terms, had become void, the insurance company, at the request of B., and without asking or re- ceiving any consideration, made an indorse-. ment on the policy, which, after reciting that B. had entered for breach of condition of his mortgage, provided that the policy should at- tach and cover his interest as such ; that the iusuiance as to the interest of the mortgagee only therein should not be invalidated by any act or neglect of the mortgagor; and that, whenever the insurer should pay the mort- gagee any sum for loss under the policy, and should claim that, as to the mortgagor or owner, no liability existed, the insurer should be subrogated to the legal rights of the mort- gagee under all securities held as collateral to the mortgage debt. Held, that the mortga- gee could not maintain an action against the insurer for a loss occurring after the indorse- ment was made. Davis v. German American Ins. Co., 135 Mass. 251 (1883). 3. If a policy of insurance on goods in transit contains no clause specifically subro- gating the insurer to the rights of the insured in case of a loss through the fault of a carrier, it is no defence to an action on the policy for a loss insured against, that the insured has, by a contract with the carrier, given him the benefit of any insurance effected, if there is no fraud or concealment on the part of the insured in effecting th« insurance. Jackson Co. V. Boylston Ins. Co., 139 Mass. 508 (1885). 4. A. was appointed administrator of an estate, and gave a bond with B. and C. as sureties ; and, without a decree of the Probate Court, distributed a large portion of the estate among the heirs, of whom A. was one, and converted the remainder to his own use. He was removed from his office, and B. was ap- pointed his successor, and gave bond with C. and another as sureties. No property of the* intestate was delivered by A. to B., except certain promissory notes. A. was adjudged insolvent, and an assignee of his estate was appointed. B. resigned as administrator, and D. was appointed in his place, and brought an action against B. and the sureties on his bond, in which judgment was rendered for D. for the fuU amount of the property of the intestate which came into the hands of A., less said promissory notes and the amount of certain small accounts paid by A. B. and C. paid the full amount of this judgment to D. The estate was not finally settled, and all the unpaid accounts against the estate, payment of which could be enforced, amounted to a smaller sum than that paid by B. and C. upon the judgment against them. B. and'C. then brought a bill in equity against D., A., his assignee, and the heirs of the intestate, asking that, upon the settlement of the estate, B. and C. might be subrogated to the rights of the distributees, after the payment of all debts, to the extent that the latter had re- ceived advances by the acts of A. Held, on demurrer, that the bill could be maintained. Stetson V. Moulton, 140 Mass. 597 (1886). SUNDAY. See Lord's Day. 949 SUPERIOR COURT. 950 SUPERIOR COURT. See Amendment; Appeal; Deposition; Exceptions; Judgment; Removal; Re- port ; Verdict. See also Rules of Court. 1. If, in a municipal court, in which no trial by jury can be had, an issue of fact is joined upon a plea in abatement, and judg- ment rendered for the plWntiff, and the de- fendant appeals to the Superior Court, lie is entitled to a trial by jury in that court upon the same issue, but upon that issue only, un- less the Superior Court orders or permits him to plead anew. O^Loughlin v. Bird, 128 Mass. 600 (1880). 2. The files and docket entries of the Su- perior Court in an action, the judgment in which is pleaded in bar of another action, are admissible in evidence, the record not having been extended, although a certified copy of the same is obtainable. Luce v. Dex- ter, 135 Mass. 23 (1883). 3. Judgment was entered for the plaintiff in an action in the Superior Court. The de- fendant took out a writ of eiTor from the Su- preme Court of the United States ; and, while the case was pending in that court, he was duly adjudicated a bankrupt, and obtained his discharge, the plaintiif not proving his claim in the bankruptcy proceedings. This discharge was pleaded in the Superior Court. Subsequently the Supreme Court of the United States issued a mandate affirming the judg- ment of the Superior Court, giving judgment for costs accruing in error, and ordering exe- cution therefor. Held, that the defendant • was not entitled, on motion of the plaintifE in the Superior Court that the judgment be af- firmed in accordance with the mandate, to try the question of the effect of the discharge in bankruptcy. Goodrich v. Wilson, 135 Mass. 31 (1883). 4. Under the forty-first rule of the Superior Court, it is within the discretion of that court, to the exercise of which no exception lies, to order a judgment rendered at a former term to be recorded, upon the petition of the pre- vailing party ; and the fact that partial pay- ments have been made since the recovery of the judgment will not take the case out of the operation of the rule. Taber v. Wilcox, 136 Mass. 56 (1883). 5. It is within the power of the Superior Court, after a rescript has been sent down by this court, affirming the judgment of the Su- perior Court for the plaintifE in an action at law pending in that court against several de- fendants, to allow the plaintifE to discontinue against one of the defendants, and to enter final judgment against the other defendants; and the exercise of such power is a matter of discretion, which will not be revised on a writ of error. Gray v. Cook, 135 Mass. 189 (1883). 6. I£ judgment is rendered against a party in a district court, and he has, without fault on his part, lost his right of appeal, the Su- perior Court has, under the Pub. Sts. c. 187, § 25, power to grant a writ of review. Keene v. WhUe, 136 Mass. 23 (1883). 7. Under the Pub. Sts. o. 153, § 6, a judge of the Superior Court, who has ordered judg- ment for the penal sum of a bond, may report the case for the determination of this court, without awarding tlie damages for which ex- ecution is to issue; but, on such a report,, the only question open is whether there has been a breach of the bond. Shattuck v. Adams, 136 Mass. 34 (1883). 8. The Superior Court has no authority to order a return of property replevied in an ac- tion which has been dismissed by that court for want of jurisdiction because the value of the property did not exceed one hundred dol- lars. Gi-ay V. Dean, 136 Mass. 128 (1883). 9. If the Superior Court grants a petition for a writ of review, which it had no jurisdic- tion to entertain, an objection to such juris- diction, taken at the hearing upon the writ, is not too late, Smith v. Brown, 136 Mass. 416 (1884). 10. The defendant in an action brought in the Superior Court by trustee process was de- faulted. The case was afterwards left ofE the docket for non-payment of the clerk's fees. Subsequently the trustee was discharged as of a previous term, without notice to the plaintiff or his attorney. Held, no judgment having been entered, that it was in the power of the court to bring forward the case, and to vacate the order discharging the trustee. Mortland V. Little, 137 Mass. 339 (1884). 11. A petition by a city to the Superior Court for a jury to assess the damages sustained by A. by the taking of certain waters by the city was filed with the clerk of the court at ten minutes after eleven o'clock in the forenoon of a qertain day. A petition by A. to the county commissioners for a like assessment of dam- ages was indorsed by the clerk of the board as filed at twenty minutes after eleven o'clock on the same day. The record of the coimty commissioners showed that A.'s petition was presented to the chairman in the presence of the full board, at an adjournment of a certain term, at forty-five minutes after ten o'clock on that day, with the request that it be filed. Held, that the petition pending in the Supe- rior Court should be dismissed. Brockton v. Cross, 138 Mass. 297 (1885). 12. Under the Pub. Sts. c. 152, § 9, if the ad damnum in a writ is laid at a sum exceed- ing $100, the Superior Court has original jurisdiction of the action, and has no authority on its own motion, or on motion of the de- fendant, to compel the plaintiff to amend his writ by reducing the ad damnum, so as to oust the court of its jurisdiction, although the amount demanded in the declaration is less than $100. Wright v. Potomska Mills, 138 Mass. 328 (1885). 13. It seems that Rule 15 of the Superior Court, providing that no motion to amend, in matters of substance, shall be allowed, except upon payment of a terra fee to the adverse party, does not apply to a plea puis darrein continuance. Burton v. Fiye, 139 Mass. 131 (1885). 14. If the verdict of a sheriff's jury is set aside by the Superior Court, a new trial can- 951 SUPREME JUDICIAL COURT. 952 not be had at the bar of that court. Wamesit Power Co. v. Lowell ^ Andooer Railroad, 139 Mass. 173 (1S85). 15. If a trial justice, in an action against the admiuisti-ator of an estate, erroneously renders a judgment for damages and costs against the estate, and the execution issued thereon is declaied illegal, an order of the Superior Court, upon a petition for a writ of scire facias to obtain a new execution on the judgment, that execution should issue against the estate for the damages, will be affirmed by this court, upon the plaintiff entering a remitlilur for the amount of the costs. Look V. Luce, 140 Mass. 461 (1886). 16. The Superior Court has no jurisdiction, under the St. of 1883, c. 223, of a petition, under the Pub. Sts. c. 27, § 129, by ten taxable inhabitants of a town, to restrain the town from an alleged illegal expenditure of money. Baldwin v. Wilbraham, 140 Mass. 459 (1886). 17. The Superior Court has no power, on a bill in equity, to order real estate of a deceased person to be sold, and the proceeds to be ap- plied to the payment of his debts, funeral ex- penses, and charges of administration. Amer- ican Legion of Honor v. Perry, 140 Mass. 580 (1886). 18. Under the Pub. Sts. c. 151, § 20, a judge of the Superior Court is not authorized to reserve, for the determination of this court, specific questions of law arising in a suit in equity, when the determination of such ques- tions will not enable this court to enter or order a final decree disposing of the case. Taft V. Stoddard, 141 Mass. 150 (1886). 19. An action pending in the Superior Court was dismissed under the fifty-fourth rule of that court. On the last day of the term, the general order was passed that judg- ment be entered in all cases ripe for judgment. The clerk made an entry in the case on the day the action was dismissed, stating that fact, but made no entry in it under the general order. Held, that the Superior Court had no jurisdiction, upon a petition filed more than a year after the last day of the said term, to order the case to be brought forward upon the docket. Pierce v. Lamper, 141 Mass. 20 (1886). 20. The Pub. Sts. c. 153, § 6, providing that the Superior Court, " after verdict or de- cision by the coui-t, may report the case for determination by " this court, do not author- ize the Superior Court, after making a formal finding against the defendants, in an action upon a recognizance given in a criminal case, "that the penalty is ad j udged to be forfeited, ' ' to report the case to this court. Commonwealth V. Teevens, 141 Mass. 577 (1886). 21. If, at the time of taking an appeal to the Superior Court in a criminal case, a statute has been enacted and approved, but has not taken effect, providing for a new term of the Superior Court, to be held at an earlier day than the term then provided for by law, an appeal to such new term is not a ground for an arrest of judgment in the Superior Court. Commonwealth v. Stevens, 142 Mass. 457 (1886). 22. The jurisdiction given to the Superior Court by the Pub. Sts. o. 195, § 1, " of all claims against the Commonwealth wliich ai-e founded on contract for the payment of mon- ey," does not extend to a claim for damages for breach of a contract. Wesson v. Com- monwealth, 144 Mass. 60 (1887). (See St. 1887, c. 246.) 23. The jurisdiction given to the Superior Court by the Pub. Sts. c. 195, § 1, "of all claims against the Commonwealth which are founded on contract for the payment of mon- ey," does not extend to the obligation imposed by the Pub. Sts. c. 86, § 26, upon the Com- monwealth, to reimburse the expense incurred by a town in the support of a State pauper. MUfordv Commonwealth, 144 Mass. 64 (1887). SUPPORT. See Bond; Nuisakcb. SUPREME COURT OF THE UNITED STATES. See Constitutional Law, I. (a), pi. 1; Superior Court, pi. 3. SUPREME JUDICIAL COURT. See Appeal; Commissioners; Deposi- tion; Exceptions; Railroad, II. pi. 2; Removal; Report. 1. If, upon the hearing of a libel for divorce, on the ground of adultery, there is evidence from which the inference of connivance may fairly be drawn, this court, upon a report of the case, will not revise the finding of such connivance. Morrison v. Morrison, 136 Mass. 310 (1884). 2. If the libellant in a libel for divorce goes to hearing without an answer having been filed by the libellee, it is too late at the argu- ment, upon the report of the case, to object that no answer was filed. Morrison v. Mor- rison, 136 Mass. 310 (18S4). 3. The common council of a city passed an order, appointing a special committee to inves- tigate and report to the council the facts relat- ing to a purchase of land by the water board of the city. The chairman of the committee brought a petition to a justice of this court, under the St. of 1883, c. 195, to compel W., from whom the land was bought, to appear and testify before the committee. The jus- tice to whom the petition was presented re- served the case for the full court. It appeared at the argument, that the council which passed the order had ceased to exist, and its com- mittee had no further power to conduct any investigation; that the members of the water board, whose conduct was to be investigated, had been removed from office, and that the city had brought an action against W. and another, to recover money alleged to_ have been fraudulently obtained by them in the purchase and sale of the land. Held, in the 953 SURETY. 954 exercise of the disorebion of the court, that the petition should not be granted. Osborne, petitioner, 141 Mass. 307 (1886). 4. Before 1874, the statutes of the Com- monwealth provided for the appointment of a reporter of the decisions of the Supreme Judi- cial Court, who was required to be sworn to the faithful performance of his duties. The manner in which the decisions were to be re- ported, and the time in which they were to be published, were also prescribed. He was paid ii salary by the State, and given " the profits arising from the publication of his reports." By the St. of 1874, c. 43, the reporter was re- quired to keep in 'a public office the written opinions of the court in all cases argued, until their publication in the reports, and also his dockets and copies of papers in such cases, and to " afford due facilities for their exam- ination." By the St. of 1879, c. 280, the Sec- retary of the Commonwealth was directed to enter into a contract with A. for the publica- tion of the reports, the statute specifying the size, style, and form of the volume, obliging the publisher to sell at a certain price to the public in this State, and at a certain less price to the State, and to pay the reporter a salary. The statute further provided, that the reporter should not be required or allowed to publish the reports; and that the stereotype plates and copyright of the volumes published should be the property of A. Held, that A. had no right, under a contract entered into with the Commonwealth in pursuance of the statute, to the first publication of the opinions of the court; and that any one, although not a citi- zen of the State, had a right to require the re- porter to allow copies of such opinions to be made for the purpose of publication. Nash V. Lathrop, 142 Mass. 29 (1886). SURETY. For liability of surety on bond to dissolve attachment, see Attachment, III. (d). For liability of surety on poor debtor's bond, see Poor Debtor. For liability of surety on bonds of executor, administrator, guardian, or trustee, see Exec- utor; Guardian; Trustee. For liability of surety on promissory note, see Bills and Notes, V. For liability of surety on official bond, see Bond. See also Bankrupt, VI. pi. 1; Bastardy; Constable; Contract, II. pi. 4; Damages, I- pi. 12; Insolvent Debtor, II. pi. 2; Limitation, III. pi. 6; Mortgage, I. (e), pi 6, II. pi. 6; Officer; Subhogation. 1. A. induced B. to become a co-surety wjth him and another on the bond of a third person, by depositing with B. a certain sum of money " with the agreement that B should hold the same as collateral security for his ultimate liability as a surety on said bond, and to in- demnify him from any loss or cost arising out of such liability." There was a breach of the bond, and the obligee brought an action against the principal and sureties, and obtained judg- ment against all the defendants, Execution issued on the judgment, which was partially satisfied from the proceeds of a sale of A.'s real estate, which had been attached in the action; and the balance due upon the execu- tion, which was more than the sum deposited by A. with B., and amounted to more than one third of the judgment, was afterwards paid by B. A. then brought an action against B., the declaration in which contained two counts, one for the sum deposited with B. as money lent, and the other for one third of the amount for which A.'s real estate was sold. There was no evidence that the third surety was insolvent. Held, that the action could not be maintained. Griffin v. Kelleher, 132 Mass. 82 (1882). 2. While Gen. Sts. c. 63, § 11, (which pro- vided that no conveyance of shares in the capital stock of a railroad corporation should be valid against any other persons than the grantors and their representatives, unless re- corded within ten days,) were in force. A., the owner of stock in a railroad corporation , caused a certificate to be issued to B., who executed an assignment in blank on the back thereof, and the certificate thus assigned was delivered to a bank "for the protection of the parties and as collateral security " for a prom- issory note payable to the bank, and signed by A. as principal and by B. as surety. Sub- sequently, the railroad corporation consoli- dated with another, under an agreement by which the stockholders were entitled to re- ceive for each share of stock a bond for a cer- tain amount. A., with the consent of the bank, obtained the certificate of stock and received the bonds, and they were paid in full, and the bank received no benefit from them. Held, in an action by the bank on the note against A. and B., that such consent of the bank was a good defence to B., so far as he was injured by the giving up of the stock by the bank. Fitchburg Savings Bank v. Torrey, 134 Mass. 239 (1883). 3. A surety may recover contribution from his co-surety in an action for money paid. Mansfield v. Edwards,^ 136 Mass. 15 (1883). 4. In an action against the sureties upon a bond, given to a bank, and conditioned for the faithful discharge by C. of " all his duties as clerk of said bank," and against the mis- appropriation of any of the funds of the bank " which may come under the care or control of said C. as clerk," the evidence showed that C, during the whole term of his employment, performed the duty, to some extent, usually performed by a teller, of paying and receiving money over the counter of the bank. It was found as a fact, that "the duties as clerk," contemplated in the bond, did not mean merely the duties of a bookkeeper, but that they embraced the duty of receiving and pay- ing out money at the counter of the bank. Held, that the defendants were not entitled to a ruling, as matter of law, that there had been such a change in the duties of the clerk as to discharge them from liabihty. liollstune 955 SURVIVAL OP ACTIONS. 956 National Bank v. Carleton, 136 Mass. 226 (1884). 5. If a bond, given for the faithful per- formance by the principal of his duties as an officer, is entrusted by the surety, after sign- ing it, on the day of its date, which is several days before the expiration of a term which the principal is then serving, to the principal, who delivers it to the obligee on the day when a new term of the office, to which the princi- pal has been reappointed, begins, the recitals o£ the bond being equally applicable to either term, in an action against the surety for a breach of the bond occurring during the sec- ond term, it cannot be ruled, as matter of law, that the bond took eifect so as to bind the surety from the date of its delivery by the principal to the obligee. Thomas v. Bleakie, 136 Mass. 568 (188i). 6. The receipt of interest in advance upon an overdue promissory note from the maker does not of itself import such a giving of time as will discharge a surety. Haydenville Sav- ings Bank v. Parsons, 138 Mass. 63 (1884). 7. The maker of a promissory note payable to a banlc, in which no rate of interest was expressed, after its maturity, asked for an extension of time until a certain estate could be settled, and was answered by the treasurer of the bank on behalf of the finance commit- tee, " We have concluded to let the note lay along if you keep up the interest as you have done." A few days later, the maker received a letter from the treasurer, saying, " Your interest must be paid." The next day he paid a sum equal to seven per cent per annum for six months on the amount of the note, which was not then six months overdue; and it was the same sum which the maker had paid several times when renewing. The treasurer indorsed on the note the amount so paid as " received on the within note." The maker called his attention to the fact, that it was not specified that it was paid as interest. He replied, that it was paid as interest, and he preferred to have it indorsed in that way. Before the next six months elapsed, another similar payment was made and indorsed in like form. Subsequent payments were made at the end of each successive six months, and were indorsed as interest. Held, in an action by the bank against the sureties on the note, that they were not discharged. Held, also, that the fact that one surety told the treasurer of the bank to sue the note was immaterial. Haydenville Savings Bank v. Parsons, 138 Mass. 58 (1884). 8. A person who executes as surety a pro- bate bond in blank, and entrusts it to his principal to be filled in and delivered to the obligee, is bound by the instrument as deliv- ered, although the principal, before delivery, inserts in the bond a larger penal sum than that agreed upon between him and the surety, if the obligee has no notice, from the face of the bond or otherwise, of the unauthorized act of the principal. \Yhile v. Duggan, 140 Mass. IS (1883). 9. A bond, given for the faithful perform- ance by C. of his duties as cashier of a bank, contained the condition " that no suit at law shall be brought or founded upon it, unless the same be commenced within the period of twelve months after the connection of the said C. with said bank, or his 'employment with said bank, shall have closed and been termi- nated." C. misappropriated the funds of the bank, and resigned his office; and an action was seasonably brought upon the bond. While this action was pending, the surety on the bond died, more than twelve months after C.'s em- ployment by the bank had terminated. Held, that a new action could be maintained against the administi-ator of his estate. Eliot National Bank v. Beal, 141 Mass. 566 (1886). 10. If the declaration in an action contains a count in contract and one in tort, not alleged to be for the same cause of action, and a de- murrer to the declaration is sustained for mis- joinder of counts, and the count in tort is stricken out, and, by amendment, a count in tort is added for the same cause of action, and this is properly averred, such amendment does not discharge the sureties on a bond given to dissolve an attachment in the action, although the amendment is made without notice to the sureties. Kellogg Vi Kimball, 142 Mass. 124 (1886). SURPLUSAGE. See Lord's Day, pi. 19 ; Pleading, I. pi. 9, 15; Spiuithous Liquors, IL (a), pi. 5, 9; Writ. SURVEYOR OF HIGHWAYS. See Way. SURVIVAL OF ACTIONS. See Abatement, pi. 11; Action, III.; Contract, VI. pi 1,2; Executor; Gam- ing, pi. 12; Railroad. 957 TAX, I. 958 T. TAX. I. Persons and Pkopbuty subject to Taxation. II. Assessment of Taxes. III. Collection of Taxes. IV. Remedy for an Illegal Tax. For cases involving the constitutionality of statutes imposing taxes, see Constitutional Law, III., pi. 2, 3. See also Bank, pi. 10; Betterment; Con- stitutional Law, II. (o), pi. 1; Dower, pi. 6; Equity, XL; Interest, pi. 3; Mort- gage, I. (c), pi. 1; Recoupment, pi. 2. I. Persons and Property subject to Taxation. 1. A building resting on sills upon the gronnd is taxable as real estate, under Gen. Sts. c. 11, §3, providing that "real estate for the purposes of taxation shall include all lands and all buildings and other things erected on or affixed to the same;" and this although, by agreement between a lessor and lessee of the land, the latter has the right to remove the building at the expiration of the lease. Milligan v. Drury, 130 Mass. 428 (1881). 2. Land owned by a religious corporation, upon which no church edifice has been or is intended to be erected, and which is separated by a passageway from the portion of the estate on which the church of the corporation stands, and which is not necessary or inci- dental to the use of the church as a house of public worship, is not exempt from taxation, under Gen. Sts. c. 11, § 5, cl. 7. Redempto- rist Fathers v. Boston, 129 Mass. 178 (1880). The fact that a benevolent or charitable corporation intends at some indefinite future time to occupy land owned by it for the pur- poses for which it was incorporated, does not exempt the land from taxation, under Gen. Sts. c. 11, § 5, cl. 3. Redemptorist Fathers v. Boston, 129 Mass. 178 (1880). 3. A tax on real estate may be assessed to a person who appears by the records to be the owner, if the municipality assessing the tax has no notice that he has previously conveyed the land. Tucker v. Deshon, 129 Mass. 559 (1880). 4. A person, having his domicil in Boston, left that city in 1876 with his family to reside in Europe for an indefinite length of time, with the fixed purpose never to return to Bos- ton as a place of residence, and to make some place other than Boston his residence when he should return ; and, while in Europe, before May 1, 1877, fixed upon a place of residence in another State, but remained in Europe until 1879. Held, that he retained his domi- cil in Boston for the purposes of taxation on May 1, 1877. Borland v. Boston, 132 Mass. 89 (1882). 5. An inhabitant of one town, doing busi- ness in another town as a manufacturer of iron, sold all the iron on hand, taking promis- sory notes in payment therefor. Before the first day of May he had ceased to manufacture iron, and was not manufacturing it on that day. Held, that the notes were not liable to be taxed on May 1 in the town where he had done business, although they were due and unpaid, and were kept in his safe in that town. Lanesborough v. Berkshire County Com- missioners, 131 Mass. 424 (1881). 6. A partner, who retires from the partner- ship before the first day of May, and there- after takes no part in the management of its affairs, and retains no interest in its property, is not liable, under Gen. Sts. c. 11, § 15, for a tax assessed on that day upon the personal property of the partnership ; and the fact that no notice was given by the retiring partner of the dissolution of the partnership does not affect his liability. Washburn v. Walwcyrth, 133 Mass. 499 (1882). 7. A dealer in ice had in a town, other than that in which he resided and had his office, a storehouse, in which the ice which constituted his stock in trade was kept, and from which it was delivered on contracts principally made elsewhere. Held, that the building in which the ice was kept was not a " store " within the Gen. Sts. c. 11, § 12, cl. 1; and that the ice was not taxable to him in that town. Hittin- ger v. Westford, 135 Mass. 258 (1883). 8. The cutting of ice on the surface of a pond, and storing the pieces so cut in a build- ing, is not a "manufacture," so that the machinery employed therein is taxable to the owner, under the Gen. Sts. c. 11, § 12, cl. 2. Hittinger v. Westford, 135 Mass. 258 (1883). 9. The St. of 1849, c. 96, made the trustees of cei'tain funds given for charitable purposes a corporation; and provided, in § 4, that "no part of the funds aforesaid shall, by the operation of this act, be exempted from taxa- tion; but, for the purpose of taxation, said funds shall be equally apportioned among" certain towns named. Held, that the funds in question were subject to the general laws, passed from time to time, relating to the taxation of property, as they would have been if the trustees had remained unincorporated. Held, also, that the statute did not authorize a franchise tax. Held, also, that the Pub. Sts. c. 13, § 52, providing that property held in trust by the class of corporations therein named shall, for the purposes of taxation, be governed by the provisions of their charters, and the Pub. Sts. c. 11, § 38, requiring a list of taxable property to be given to the asses- sors, did not apply to this corporation. Green- 959 TAX, I. 960 field Y. County Commissioners, \Z5 Mass. 566 (1883). 10. Under a condition in a mortgage of land, given in 1874, that the mortgagor " shall pay all taxes and assessments on the granted prem- ises," he is bound to pay the taxes assessed, under the Pub. Sts. c. 11, §§ 13 et seg., upon the amount of the mortgagee's interest in the premises; and, until he has done so, he can- not maintain a bill in equity to compel the mortgagee to discharge the mortgage. Ham- mond V. Loveli, 136 Mass. 184 (1883). 11. A corporation was chartered with au- thority to purchase and hold land, to improve the same for houses to be owned by working people and others, and to sell houses and lots, payable at cost, on instalments. On May 1, 1880, and on May 1, 1881, the corporation owned land with buildings thereon. At the former date, none of the buildings were occu- pied. At the latter date, some of the build- ings were occupied by persons to whom the corporation had given bonds for deeds. The corporation had as far as practicable improved all its land, and assigned it and caused it to be occupied, as provided in its charter, and had made no other use of any of its land. Held, that, even if the coi-poration was to be considered a benevolent or charitable institu- tion, within the Gen. Sts. c. 11, § 5, cl. 3, its real estate was not at the times above men- tioned so occupied by it as to be exempt from taxation. Lynn Workingtnen's Aid Association V. Lynn, 136 Mass. 283 (1884). 12. Bonds issued by a railroad corporation, which is managed by its stockholders for the purposes of private gain, are not "public stocks and securities," within the meaning of the Pub. Sts. c. 11, § 4, but are "debts due," and the money invested in them is " money at interest," from which the. owner is entitled, in determining the amount for which his per- sonal estate shall be taxed, under that stat- ute, to have money upon which he is paying interest deducted, although the corporation is established by an act of Congress of the United States, and large grants of land have been made to it by Congress to aid in its con- struction for public purposes, and the bonds are secured by a mortgage on its road, and the mortgage is, as required by law, filed and re- corded in the office of the Secretary of the Interior, and the corporation is to some extent subject to government control. Hale v. County Commissioners, 137 Mass. Ill (1884). 13. If a foreign corporation has a place of business in this Commonwealth, where it has personal property, consisting of office fur- niture and fixtures, and where it keeps per- sonal property pledged to it as collateral security for money lent, which it sells when not redeemed, such place of business is a " shop," and the property so used and pledged is "stock in trade," which is taxable to it, under the Gen. Sts. c. 11, § 12, cl. 1. Boston Loan Co. v. Boston, 137 Mass. 382 (1884). 14. Under the Pub. Sts. c. 11, §§ 14, 16, and c. 13, §§ 39, 40, the tax commissioner, in de- termining the basis upon which to_ levy the annual excise on the franchise of an insurance corporation, should deduct from the aggre- gate value of the shares of the corporation the value of mortgages of real estate held by it, and subject to local taxation. Firemen's Ins, Co. V. Commonwealth, 137 Mass. 80 (1884). 15. A firm, one member of which resided in B. and the other in N., had an office in B., where its books were kept, and in which it also kept a small stock of goods as samples, and for the accommodation of retail custom- ers. It had three factories where its goods were made, one in B., one in N., and one in W. The goods made at the factory in W. were put into an adjacent storehouse, and there kept until sold. Nearly all the sales were made on orders received at the office in B , and one of the partners went each day to one or anotlier of the factories, and shipped the goods from those there stored direct to the customers. Held, that the firm had a " place of business " in W., and the goods made and stored there were "employed" in its business, and were taxable there, under the Pub. Sts. c. 11, § 24. Barker v. Watertown, 137 Mass. 227 (1884). 16. The obligation of a person to pay a tax depends upon his title on May 1 ; and the fact that the tax is not actually assessed until after that day is immaterial. Kearns v. Cunniff, 138 Mass. 434 (1885). 17. Money deposited in a national bank, and bearing no interest, is liable to be taxed to the depositor, under the Pub. Sts. c. 11, § 4, without any deduction on account of debts due from him. Gray v. Street Commissioners, 138 Mass. 414 (1885). 18. Under the Pub. Sts. c. 18, §§ 8-19, the shares in a national bank of stockholdeis who reside in a regulai-ly organized fire district in the town in which the bank is located, cannot be subjected to a tax assessed for fire district purposes. Rich v. Packard National Bank, 138 Mass. 527 (1885). 19. " Stock in trade" must be domiciled in the place where the owner has his " store " or " shop," in order to be taxable to him there, under the Pub. Sts. c. 11, § 20, cl. 1. Hillinger v. Boston, 139 Mass. 17 (1885). 20. A foreign corporation had a general office in B. and a store in L,, both in this Commonwealth. On May 1, it had sewing- machines in L., in the possession of persons under contracts, by the terms of which each person agreed to pay as rent a certain sum monthly until a certain other sum should be paid, and then to return the machine to the company, or to purchase the machine for one cent. These machines were delivered from the store in L. and the contracts were immediately sent to the office in B., which took charge of and enforced them. The employees in the store in L. had no further connection with the machines after delivery, except to make collections, and to remit them to the office in B. If the persons having the machines did not pay under their contracts, which seldom happened, the employees in L., acting under general directions from the office in B., took possession of the machines. Held, under the Pub. Sts. c. 11, § 20, that the ma- 961 TAX, II. 962 chines were propei-ly taxable to the corpo- ration in L. as " stock in trade." Singer Manuf. Co. v. County Commissioners, 139 Mass. 266 (1885). 21. Under the Pub. Sts. c. 11, § 4, and c. 13, §§ 43, 46, 57, the shares of stock of a corporation organized under the laws of this Commonwealth to build a railroad in a foreign country are taxable to the owner for state, county, or town purposes. Pratt v. Street Commissioners, 139 Mass. 559 (1885). 22. A number of persons formed an asso- ciation, by an instrument in writing contain- ing numerous articles, for the purpose of buying, selling, and leasing railroad rolling stock, to be sold or leased to a certain rail- road company, with provisions for admitting other persons to membership. The members of the association were to furnish money for the purchase of the rolling stock, and were to have certificates for the amounts so furnished, providing that the principal sum contributed by each member should be repaid in ten an- nual instalments, with interest; both princi- pal and interest being payable only out of the rentals received for the rolling stock. A plan was adopted by which the association deliv- ered the property to a corporation as trustee, which issued the certificates to the members of the association, and also executed the leases to the railroad company, with provis- ions for a rental sufficient to meet the above payments of principal and interest, in addi- tion to expenses, including taxes ; and at the end of ten years the rolling stock was to be- come the property of the railroad company. All contracts relating to any business of the association, involving liabilities for the pay- ment of money, were to be in writing, and made under the direction of the board of man- agers. The original board of managers was named in the articles of association, but the shareholders were to have the power to re- move them and to elect others. At all meet- ings, every shareholder was to have one vote for each share of stock owned by him, and provision was made for the transfer of shares, and the association was not to be dissolved by the death of members. Every owner of one or more shares was to be entitled to a propor- tionate share of the rentals received. The meetings of the board of managers were al- ways held in B., and all the business done by them for the association was done there, and the association never had any other place where its business was carried on, and the certificate holders never held any meeting. Held, that the association was a partnership ; that its place of business was in B. ; that roll- ing stock bought in pursuance of a vote of the board of managers authorizing such purchase, delivered to the corporation as trustee, and leased by the trustee to the railroad company, was personal property employed in the busi- ness of the association, within the Pub. Sts. c. 11, § 24; and that, under the Pub. Sts. 0. 11, § 20, cl. 5, such property was taxable to the trustee in B. Richer v. American Loan ir Trust Co., 140 Mass. 346 (1885). 23. By the St. of 1868, c. 81, certain per- SUPPLEMENT. — 31 sons were incorporated as the "Massachu- setts Society for the Prevention of Cruelty to Animals;" but the objects and purposes were not defined otherwise than by the title of the act. By the St. of 1868, c. 212, § 8, re-enacted in the St, of 1869, c. 344, § 7, all tines col- lected upon the complaint or information of any officer or agent of the corporation under that statute are to be paid over to the coi-pora- tion " in aid of the benevolent objects for which it was incorporated." The methods adopted by the corporation are the gratuitous dissemination of papers and essays, and the delivery of free lectures, setting forth the proper treatment of animals; the organiza- tion of societies whose members are pledged to the prevention of cruelty to animals; the employment of agents to aid in enforcing the laws upon the subject ; and the erection and maintenance of a free hospital for homeless, neglected, diseased, or abused animals, where they may be kindly cared for or humanely disposed of. Held, that the corporation was a "benevolent" and "charitable" institu- tion, within the Pub. Sts. c. 11, § 5, cl. 3, exempting the property of such institutions from taxation. Massachusetts Society, Sfc. v. Boston, 142 Mass. 24 (1886). II. Assessment op Taxes. 1. The tax, authorized by St. 1868, c. 320, as amended by St. 1873, c. 272, to be assessed upon the property of any person to a certain amount and liable to taxation, discovered by the assessors, after their warrant has been com- mitted to the collector, to have been omitted from the last annual assessment, is not a new tax, but an amendment of the annual assess- ment ; and it is immaterial that a person who has not furnished the assessors with a list of his taxable property is not the actual owner of property so assessed to him. Harwood v. North Brookfield, 130 Mass. 561 (1881). 2. Real estate in the possession of a mort- gagee, the equity of redemption of which had been conveyed, was improperly taxed to the mortgagor. It was afterwards sold and con- veyed under a power of sale in a second mort- gage ; and the tax was subsequently reassessed under Gen. Sts. c. 11, § 53, to the holder of the equity, based upon a valuation other than that of the year for which the tax was origi- nally assessed. Held, that the reassessment was invalid. Daois v. Boston, 129 Mass. 377 (1880). 3. Under Gen. Sts. c. 11, § 25, after a per- son has seasonably filed a schedule purporting to be a true list of all his property liable to taxation, and has made oath to the same, the assessors have no right to add to such list other property for which they consider him taxable, and assess him thereon, without mak- ing any inquiries of him in relation thereto. Moors V. Boston Street Commissioners, 134 Mass. 431 (1883). 4. A person filed with the assessors of the town where he did business a list, enumerat- 963 TAX, III. 964 ing in detail his real and personal property in that town, but it did not in terms state that it was all his property liable to taxation there. The jurat recited that " the statement and valuation is correct and true according to his best knowledge and belief. " Eeld, that there was a substantial compliance with the require- ments of Gen. Sts. c. 11, §§ 22, 23, 25, 46. Lanesborough v. Berkshire County Commission- ers, 131 Mass. 424 (1881). . 5. When the original assessment of a tax is valid, its reassessment is void. Deane v. Hathaway, 136 Mass. 129 (1883). 6. Under the Pub. Sts. c. 11, § 4, providing that personal property, for the purposes of taxation, shall include " debts due the persons to be taxed more than they are indebted or pay interest for," a tax upon a debt due from an intestate is properly assessed to the creditor, although the amount is in dispute, if it is con- ceded by the administrator to be as much as that taxed, and is finally compromised, by authority of the Probate Court, by the pay- ment of a larger sum. Deane v. Hathaway, 136 Mass. 129 (1883). 7. An additional tax, authorized by the St. of 1868, c. 320, upon property discovered by the assessors to have been omitted from the last annual assessment, is properly assessed to the owner of the property on the first day of May, although he has died between that day and the date of the new assessment, and not to his executor. Noyes v. Hale, 137 Mass. 266 (1884). 8. A tax upon the personal property of a person, who does not bring in a list to the as- sessors, as required by the Gen. Sts. c. 11, § 22, may be assessed on "personal property," with- out any enumeration of particular kinds or items of property, if the assessors are unable to ascertain such particulars; and an addi- tional assessment upon personal property, dis- covered by the assessors to have been omitted from the last annual assessment, as authorized by the St. of 1868, c. 320, may be laid in the same manner. Noyes v. Hale, 137 Mass. 266 (1884). 9. Assessors of taxes cannot be said to ' ' dis- cover " that the property of a person liable to taxation has been omitted from the last an- nual assessment, within the meaning of the St. of 1868, c. 320, until they become satisfied as a board that there has been such omission; and private information of the omission ob- tained by one member of the board, before the tax list and warrant have been committed to the collector, is not sufBcient. Noyes v. Hale, 137 Mass. 266 (1884). 10. The St. of 1880, c. 204, setoS a part of the town of B. and annexed it to the city of C. ; and provided, in § 2, that " the inhab- itants and estates within the territory hereby set off and the owners of such estates shall be holden to pay all taxes assessed and in arrears to the same persons, and such taxes may be collected in the same manner, as if this act had not been passed." Held, that the assessors of B. could reassess a tax, originally assessed to the wrong person, for a year previously to the passage of the statute, to the owner of land included in that so set off. Market National Bank v. Belmont, 137 Mass. 407 (1884). 11. An entry upon land by a mortgagee, for the purpose of foreclosing his mortgage, between the date of an assessment of a tax upon the land and the date of a reassessment of the same tax, the original tax having been assessed to the wrong person, is not an aliena- tion of the land between the first and second assessments, within the meaning of the Pub. Sts. c. 12, § 25. Market National Bank v. Belmont, 137 Mass. 407 (1884). 12. If a person buys a parcel of land at a tax collector's sale, and receives a deed thereof, which is recorded before the first day of May, and no other transfer of the parcel is made until after that date, he is the " person ap- pearing of record as'owner," within the Pub. Sts. c. 11, § 13, and a tax upon the land is properly assessed to him, although the former owner had on said first day of May a right to redeem the land. Butler v. Stark, 139 Mass. 19 (1885). 13. A parcel of land in a city was bounded in part on W. Street and in part on M. Street. There, were on the land a mansion-house, with a stable and greenhouse attached, fronting on W. Street, and a smaller house fronting on M. Street. The assessors of the city taxed this estate to the owner, and, in the valuation list, entered the estate as follows: " House, W. St. 13200. House, M. St. $1600. Sta- ble, $400. Greenhouse, $200. Land, six acres, $1800. Aggregate value of real estate, $7200." Held, that, under the Pub. Sts. c. 11, § 53, the assessment of the tax was valid. Bemis v. Caldwell, 143 Mass. 299 (1887). 14. The owner of a parcel of land died, leaving a widow and an heir at law. Dower was not assigned to the widow, and she, act- ing as agent for the heir at law, let the land to a tenant. While the tenant was in sole occupation of the land, a tax upon it was as- sessed to the widow. Held, that the widow was not the person "in possession," within the Pub. Sts. c. 11, § 13; and that the assess- ment was invalid. Lynde v. Brown, 143 Mass. 337 (1887). III. Collection of Taxes. See also Condition, pi. 7. 1. A mortgagee of land, whether in pos- session, before foreclosure, or out of posses- sion, who purchases the land at a sale thereof for non-payment of taxes, is entitled, under St. 1862, c. 183, § 6, to have the purchase money repaid him in case the sale is invalid. Home Savings Bank v. Boston, 131 Mass. 277 (1881). If, however, he has become, at the time of the collector's sale, the absolute owner by having purchased at a sale under the power in the mortgage, he is not entitled to repay- ment of the amount paid by him at the col- lector's sale, although such sale is invalid. Home Savings Bank v. Boston, 131 Mass. 277 (1881). 965 TAX, III. 966 2. Under the following article in the war- rant for the annual meeting of a town, " To determine the manner of collecting taxes," all that the record of the town clerk showed in relation to the choice or appointment of a col- lector of taxes was as follows: "Motion that the treasurer be collector." Held, that the record did not show that the treasurer of the town was chosen collector of taxes. Lincoln V. CUpin, 132 Mass. 470 (1882). 3. Under Gen. Sts. c. 12, § 51, a collector of taxes de facto is accountable to the town for the payment of taxes actually collected by him; but he is not accountable for taxes re- fused to be paid to him on the ground that he had no leg;al authority to collect them. Lin- coln V. Chapin, 132 Mass. 470 (1882). 4. An assessor of taxes of a town is not liable to an action by the town for neglecting to commit the tax list to the proper collector of taxes, if he commits the warrant to him- self under the honest belief that he was authorized by vote of the town to collect the taxes. Lincoln v. Chapin, 132 Mass. 470 (1882). 5. In an action for taxes assessed by a city upon the personal property of a partnership, evidence that the defendant had retired from the firm before the tax was assessed, and there- after retained no interest in the firm or in the property taxed, is admissible under a general denial in the answer. Washburn v. Walworth, 133 Mass. 499 (1882). 6. A notice from a city treasurer, that it is his duty to enforce the payment of a tax on land by sale unless the tax is paid forth- with, is not "a notice of sale" within Gen. Sts. c. 12, § 56. Knowles v. Boston, 129 Mass. 551 (1880). 7. A sale of land for non-payment of taxes, if valid, creates a title paramount to any ex- isting estate therein ; and such title becomes absolute by the lapse of two years. Langley V. Chapin, 134 Mass. 82 (1883). 8. If a city has taken a deed of land sold for taxes, under St. 1862, c. 183, it cannot, after the expiration of two years, under St. 1878, c. 266, § 10, sell the laud to a person not entitled to redeem, except by public auction. Langley v. Chapin, 134 Mass. 82 (1883). 9. A sale of land, under an advertisement of a collector of taxes, which offers for sale " said parcels of real estate, or such undivided portions of them as may be necessary," is in- valid. Sanford v. Sanford, 135 Mass. 314 (1883). 10. An assignee of a recoi-ded mortgage, whose assignment is unrecorded at the time of a sale of the mortgaged land for the non- payment of taxes, but which is recorded be- fore making tender for the purpose of redemp- tion, is a "mortgagee of record," within the meaning of the Gen. Sts. c 12, § 36, cl. 4. Hawes v. Rowland, 136 Mass. 267 (1884). 11. An advertisement of a sale of a parcel of land taken for a tax, which incorrectly states the year for which the tax is assessed, does not comply with the Gen. Sts. c, 12, § 29; and is fatally defective, although it states correctly the amount of the tax assessed, Knowlton v. Moore, 136 Mass. 32 (1883). 12. The provision in the Gen. Sts. c. 12 § 35, that the collector's deed of land sold foi the non-payment of a tax shall state " the place of residence of the grantee," is uo( merely directory; and a deed which omiti such a statement is fatally defective. Knowl- ton V. j!loore, 186 Mass. 32 (1883). 13. A warrant to the collector of taxes of i town, issued and signed by the selectmen, af ter referring to a copy of an assessment raad( upon a landowner for the cost of the construe tion of a sewer, directed the collector to col lect it " aocoiding to law," and did not direci him how to dispose of the money when he re^ ceived it. There was no informality in the proceedings of the collector under it. Held that the warrant was valid. Leominster v Conant, 139 Mass. 384 (1885). 14. The provision of the St. of 1868, c. 320 requiring that the additional tax therein au thorized, upon property discovered by thf assessors to have been omitted from the las' annual assessment, shall be entered in the taj list of the collector, may be complied with bj entering the same in a separate book, or on i separate paper, with a new warrant for its col lection. Noyes v. Hale, 137 Mass. 266 (1884) 15. In an action for the amount of a tai assessed, under the St. of 1868, c. 320, upoi property discovered by the assessors to havi been omitted from the last annual assessment a statement, made by one assessor to his asso elates at a meeting of the board, of a privat( conversation between him and the executor o; the deceased owner of the property, in relatioi to its valuation, is admissible in evidence and evidence that the conversation was no stated truly is immaterial. Noyes v. Hale 137 Mass. 266 (1884). 16. An action on the Gen. Sts. c. 12, § 40 by the collector of taxes of a city, against i mortgagee of land, who has entered thereor and foreclosed his mortgage, after the liei created by § 22 has expired, for the amouift o: taxes assessed upon the land to the mortgagoi in possession, cannot be maintained. Sher win V. Boston Five Cents Saoings Bank, 13' Mass. 444 (1881). 17. At the hearing of a bill in equity to re move a cloud upon the title to land, if th( evidence shows that the purchaser at a sale o the land for the non-payment of taxes assessec thereon failed to pay the collector of taxes th sum bid by him, and to receive a deed, withii ten days, as required by the Pub. Sts. c. 12 § 41, a deed delivered to him by the collecto afterwards is properly held to be void, and cloud upon the title. Holt v. Weld, 140 Mass 578 (1886). 18. If there have been successive sales o land to different purchasers, for non-paymen of taxes assessed thereon, a bill in equity t redeem the land, brought by the origina owner against the last purchaser, cannot b maintained, if the right to redeem, as agains the first purchaser, has been lost by failure t bring the bill within five vears, as specific in the Pub. Sts. c. 12, § 66, from the firs 967 TELEGRAPH. 968 sale, although five years from the last sale have not expired; and it makes no difference that the plaintiff is an infant. O'Day v. Bowker, 143 Mass. 59 (1886). 19. A deed of a collector of taxes recited that " no person has appeared to discharge said tax," and that the collector "has de- manded the same of S., the reported owner of said real estate;" but the deed did not state that fourteen days elapsed after the de- mand before advertising the premises for sale, or that the tax was not paid within fourteen days after the demand. Held, that, under the Gen. Sts. c.l2, §§ 22, 35, the deed was void. Langdon v. Stewart, 142 Mass. 576 (1886). IV. Remedy for an Illegal Tax. 1. An action to recover back the amount of a tax paid under protest cannot be main- tained, unless the plaintiff shows that the tax was wholly illegal ; therefore, the amount of a tax assessed upon the property of a firm after its dissolution, and paid under protest by one partner, cannot be recovered back by him, if the statement of facts upon which the case is submitted to the court does not show that, at the time the tax was assessed, the affairs of the firm had been wound up, or that there was no taxable property of the firm remaining undisposed of. Oliver v. Lynn, 130 Mass. 143 (1881). 2. A non-resident who is taxed as a res- ident on all his personal property, cannot maintain an action to recover back the amount of the tax paid by him under pro- test, if he had horses and cattle kept in the town assessing the tax, and liable to taxa- tion there under Gen. Sts. c. 11, § 12, cl. 3. Hicks V. Wesiport, 130 Mass. 478 (1881). .3. It is no objection to the sufficiency of a written protest by a tax-payer against the pay- ment of a tax, under Gen. Sts. c. 12, § 56, that it was presented to the collector; that it was.written across the face of the tax-bill; and that it was not left with the collector, but was taken away by the tax-payer. Bor- land V. Boston, 132 Mass. 89 (1882). 4. A person paying a tax stated orally to the clerk of the treasurer of a city that he paid it under protest, and wished the clerk to make a note of it. The clerk, acting un- der instructions from the treasurer to make a note of all protests, written or oral, wrote upon the receipt given for the tax that it was paid under protest, and made a memorandum to that effect on the books of the treasurer. Held, that there was not " a protest in writ- ing " by the person paying, within Gen. Sts. c. 12, § 56. Knowles v. Boston, 129 Mass. 551 (1880). 5. A petition to this court, under the Pub. Sts. c. 13, § 64, to recover the amount of a tax assessed to and paid by a corporation upon the market value of the shares of its capital stock, cannot be maintained for an over-valu- ation of the shares. Boston Manuf. Co. v. Commonwealth, 144 Mass. 598 (1887). 6. In an action to recover tiie amount of a tax assessed upon the plaintiff's estate by the city of C, the plaintiff contended that he had changed his domicil from C. to a town in an- other State about the month of October, 1881 ; and offered evidence that, in the autumn of 1880, he declined to accept a nomination for the common council of C, or to serve if elect- ed, " on the ground that he had no connection with, or interest in, the affairs of C." Held, that this evidence was rightly excluded. Pick- ering V. Cambridge, 144 Mass. 244 (1887). 7. In an action to recover the amount of a tax assessed upon the plaintiff's estate by the city of C. on May 1, 1883, the plaintiff con- tended that, about October, 1881, he had changed his domicil from C. to the town of G. in another State. It appeared that in May, 1881, he became the owner of the home- stead fai-m in G. on which be was born. He offered evidence of a statement, made by him upon his farm in G. in November, 1881, to the superintendent, when giving him in- structions in regard to work to be done upon the farm, " that he had now made G. his resi- dence and domicil, and' that he wished to be taxed there, and to vote there, and to become a. citizen of the town, and that he had left C. as a resident." The plaintiff also offered in evidence a statement, made by him at C. in the autumn of 1881, to one P., a witness, when the plaintiff requested P. to go to G. and " make and report to him an estimate of the expense of making certain repairs and improvements in the house in G.," that the plaintiff " had changed his residence from C. to G., and that he was no longer an inhab- itant or citizen of C." Held, that it could not be said that the judge, who tried the case without a jury, erred in excluding the evi- dence offered. Pickering v. Cambridge, 144 Mass. 244 (1887). TELEGRAPH. See Negligence, II. pi. 9. 1. A corporation organized under the St. of 1874, c. 165, for the transmission of intelli- gence by electricity, may avail itself of the powers granted by the Pub. Sts. c. 109, to "every company incorporated for the trans- mission of intelligence by electricity. ' ' Pierce V. Drew, 136 Mass. 75 (1883). 2. The transmission of intelligence by elec- tricity is a business of a public character; and the Legislature may grant to a telegraph com- pany the exercise of the right of eminent do- main. Pierce v. Drew, 136 Mass. 75 (1883). 3. No compensation is provided by the Pub. Sts. c. 109, §§ 4, 12, to the owner of the fee of a highway for the use of the same by a tele- graph company. Pierce v. Drew, 136 Mass. 75 (1883). 4. An additional servitude is not imposed by the appropriation of a public highway, un- der the Pub. Sts. c. 109, for the use of a line of electric telegraph, by the erection of poles and wires above the service of the ground; 969 TENDER. 97 and the statute is constitutional, although it makes no provision for compensation to the owner of the fee in the highway. W. Allen & C. Allen, JJ., dissenting. Pierce v. Drew, 136 Mass. 75 (1883'). 5. An agent, with knowledge that the rules of a telegraph company provided that mes- sages sent by it should be subject to certain stipulations as set forth in the printed form in use by the company, sent a message to the company to transmit to his principal. Held, in an action by the principal against the com- pany for not seasonably delivering the mes- sage, that, although it did not appear that the message was copied on the printed form, these facts would warrant a finding that the con- tract was entered into subject to the stipula- tions therein contained. Clement v. Western Union Telegraph Co., 137 Mass. 463 (1884). 6. The printed form issued by a telegraph company contained the following stipulation : " It is agreed between the sender of the fol- lowing message and this company that said company shall not be liable for mistakes or de- lays in the transmission or delivery, or for non- delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same." Held, that the sender of an unrepeated message subject to this stipula- tion, in an action against the company for a delay in its delivery, caused by the gross negli- gence of the messenger of the company, could recover only the cost of the message. Clement V. Western Union Telegraph Co., 137 Mass. 468 (1884). TENANT. See Estate Tail ; Landlord and Tenant. TENANT FOR LIFE. 1 Capital and Income ; Deed ; Devise : Trust. TENANTS IN COMMON. See Joint Tenants. TENDER. 1. If the parties to a sale of land by auc- tion meet on the day fixed for the performance of the contract, and the seller, without wait- ing for a formal request by the buyer, tenders a deed of the land, which is insufficient to convey a good title, and the buyer refuses to accept it upon that gi-ound, no formal tender by the buyer of the balance of the purchase money, or offer to perform on hia part, or r quest to the seller for performance, is nece sary, if the buyer is ready to perform, i order to entitle him to maintain an actio against the seller for the portion of the pu chase money paid at the sale. Gormley \ Kyle, 137 Mass. 189 (1884). 2. The wife of H died without issue, seise in fee of a parcel of land of less value tha $.5,000, which had been conveyed to her t W., and H. became entitled to it in fee. W knowing that H. had an estate in fee, repn sented to him that his estate was for life onl; as he had been informed, and made an off( for the land, which H. refused. Subsequent); H., influenced by the said representation, a cepted another offer made by W., and conveye the land, for much less than its value, to W. wife, who paid no part of the conaideratioi Held, that H. was entitled to maintain a bi in equity against W. and his wife, for a ri conveyance of the land, upon repayment ( the consideration, without having made tender of the considei-ation. Held, also, thf evidence was inadmissible that the wife of I: owed W. $100 as part of the consideration t the deed of W. to her. Hogan v. Wixted, 13 Mass. 270 (1885). 3. If B. agrees in writing to convey Ian to A. for other land and a sum of money, B.' conveyance of the land to a third person , whe A. is in no default, gives A. a right of actior although there has been no tender on his part and it is no defence that A. has not show that he was able to pay the money. Lowe ^ Harwood, 139 Mass. 133 (1885). 4. B. agi-eed in writing, on November i to exchange farms with A. On November 11 B. wrote to A. that his wife would not sign deed, and he would have to give up the trad( After other correspondence, in answer to notice from A. that he should hold B. to th agreement, B. wrote, on November 24, tha the bargain depended on his wife's consent and she refused, and that wound up the busi ness. Held, that this amounted to a repndia tion on B.'s part, which authorized A. to brin: an action without making a tender. Hela also, that, no time of performance having beei stated in the agreement, it was to be performs within a reasonable time; and that an actioi brought on December 12 was not premature! brought. Lowe v. Harwood, 139 Mass. 13: (1885). 5. A policy of insurance, in the form pre scribed by the Pub. Sts. c. 119, § 139, agains loss by fire upon certain premises, issued t "A., payable in case of loss to B., mort gagee,'' provided that the insurer might elect when it was not liable to the mortgagor 6 owner, either to pay to the mortgagee the loss or to pay the full amount secured by the mort gage, and to receive an assignment of thi mortgage and debt. A loss occurred, and B. at the request of A., who was unable to do so made repairs upon the premises which wen necessary for the protection of the property The insurer denied its liability for the loss and B. brought an action upon the policy The insurer filed an answer, denying any lia 971 TIME, COMPUTATION OF. 972 bility on its part; and, seven months after the action was brought, made a tender to B. of the amount of the mortgage, principal and inter- estj and requested an assignment of the mort- gage and note, which B. declined to make. Held, that the tender was not made within a reasonable time, and was not sufficient in amount. Eliot Savings Bank v. Commercial Assurance Co., 142 Mass. 142 (1886). 6. In an action by a creditor against a trus- tee under an assignment made by a debtor for the benefit of his creditors, the declaration was for money had and received, with interest thereon. The answer contained a general de- nial, and also a denial that the defendant had received the money, except the sum of $45.20, and alleged that, before the return day of the writ in the action, the defendant tendered to the plaintiff the sum of f 47, including fl.SO costs, being all the costs that had accrued, which the plaintiff had received. Th# de- fendant was allowed to testify, that on the day of the date of the writ he made up his account as trustee, and there was due the creditors twenty per cent of their claims; that he tendered the suras mentioned in his answer, which were received by the plaintiff on ac- count; and that the sum of $45.20 was more than twenty per cent of the plaintiff's claim, with interest to the day of tender. The judge instructed the jury, that, if they found that the sum paid, exclusive of costs, equalled twenty per cent of the amount due the plain- tiff, with interest from the date of the writ, their verdict should be for the defendant. Held, that the plaintiff had no ground of ex- ception. Bouvi V. Cottle, 143 Mass. 310 (1887). THREATS TO ACCUSE OF CRIME. See Conspiracy. 1. An indictment on Gen. Sts. o. 180, § 28, for attempting to extort money by thi-eatening to accuse of a crime, need not set out the pre- cise words used, if their substance is stated with sufficient certainty to comply with the provisions of the statute and to inform the defendant of the charge against him. Com- monwealth V. Philpot, 130 Mass. 59 (1880). 2. At the trial of an indictment on Gen. Sts. c. 160, § 28, for maliciously sending a threatening letter to A. with intent to extort money from him, the defendant requested the judge to instruct the jury, that they must find that the defendant must have maliciously in- tended to obtain what he knew he had no right to receive ; and that, if he believed that A. actually owed him the sum demanded, he was not guilty of the offence charged. The judge declined to give these instructions, and instructed the jury that, to maintain the in- dictment, it was not essential that the defend- ant was endeavoring -to obtain money that was not due him; that, if he endeavored to obtain money that was justly his due in this way, he would be guilty; that a man had no right to use this way to collect his debts; that a threat made by one whose goods had been stolen that he would prosecute the supposed thief for the offence, if there were grounds to suspect him to be guilty, could not be con- sidered as made maliciously, unless there were other proofs of malice ; and the jury were fur- ther instructed what would constitute a mali- cious threatening, and as to the weight to be given to the fact whether the defendant was or was not claiming more than he believed to be due, upon the question of malice, in a manner not excepted to. Held, that the de- fendant had no ground of exception. Com- monwealth V. Coolidge, 128 Mass. 55 (1880). 3. At the trial of an indictment for threat- ening to accuse a person of crime, with the intent to extort money from him, the govern- ment may show that the defendant, under an assumed name, brought an action against the person alleged in the indictment to have been threatened, by the testimony of the attorney of record for the plaintiff in that action, al- though he testifies that all the knowledge he has as to the identity of the plaintiff therein with the present defendant was acquired while acting as such attorney. Commonwealth v. Bacon, 135 Mass. 521 (1883). 4. At the trial of an indictment for threat- ening to accuse a person " of having commit- ted the crime of open and gross lewdness and lascivious behaviour in the presence of " the defendant, with the intent of the defendant to extort money from him, there was evidence tending to show that the defendant had ac- cused him of an act of grossly indecent and irregular indulgence of lust, involving the ille- gal use of force on the defendant's person, and had threatened to give publicity to the pre- tended acts unless he was paid money; and that, among other threats, the defendant used the following language: "Give me five hun- dred dollars, or I'll put this thing in court." " If you don't go and see my lawyer before five o'clock, you will be arrested." Held, upon a bill of exceptions which did not set forth all the evidence, that there was no vaii- ance between the allegations and the proof. Commonwealth -v. Bacon, 135 Mass. 521 (1883). TIDE WATER. See Action, I. (a), pi. 7; Astbrse Pos- session; Way, TIMBER. See Constitutional Law, I. (b), pi. 1. TIME, COMPUTATION OF. See Officer, pi. 4. 1. If the last day, of the three years limited by Gen. Sts. c. 140, § 1, for the redemption 973 TOWN, I. 974 of land from a mortgage, falls on Sunday, a tender of the amount due on the mortgage upon the following day is too late. Haley T Young, 134 Mass. 304 (1883). 2. Sunday is excluded from the three days allowed by the Pub. Sts. c. 153, § 8, for filing a bill of exceptions. Cowley v. McLaughlin, 141 Mass. 181 (1886). TORT. See Action ; Assault ; Conspiracy ; False Impkisonmbnt; Fraud; Libel; Ma- licious Prosecution; Limitation; Mas- ter and Servant; Negligence; Nuisance; Officer; Physician; Seduction; Town; Trespass; Trover; Way. For damages in actions of tort, see Dam- ages, II. For joinder of counts in tort and contract, see Pleading. TOWN OR CITY. I. Powers and Rights. II. Liabilities. III. Town Meetings. IV. Of Town Officers. V. Of the Division of Towns. As to the liability of towns for defects in bridges and ways, see Bridge ; Way. As to the rights and liabilities of towns growing out of the exercise of the power of eminent domain, see Bridge; Cranberry Lands; Fish; Nuisance; Park; Post- office; Railroad; Sewek; Waterworks; Way. See also By-Laws ; Dog ; Constitutional Law; Pauper; Spirituous Liquors. I. Powers and Rights. 1. It is well settled that the Legislature may authorize and require a county or a town to raise and appropriate money for any public use within its limits, or for the reimburse- ment of money already paid for such a use. Agawam v. Hampden County, 130 Mass. 528 (1881). 2. A town may vote to pay a person who has performed work on its highways, although the work was done merely under the direction of one of the selectmen, who was also sur- veyor of highways, and not under the direc- tion of the board of selectmen, as required by St. 1877, c. 58. Curran v. Holliston, 130 Mass. 272 (1881). 3. A city has the right to allow a building, erected for municipal purposes, to be used in- cidentally for other purposes, either gratui- tously or for compensation. Warden v. New Bedford, 131 Mass. 23 (1881). 4. A town may vote to appropriate money for the enforcement of the liquor law, and to employ agents and counsel to suppress the sale of intoxicating liquors. Dunn v. Fram- ingham, 132 Mass. 436 (1882). 5. The acceptance by a town of a bond from a person who builds a dam therein, " to clear the town from any damage from the flowing of the water, that the dam never should inter- fere with the town road," is no bar to an action by the town against a person who re- builds the dam to a greater height, which damages the road by setting the water back upon it. New Salem v. Eagle Mill, 138 Mass. 8 (1884). 6. A claim against the estate in insolvency of the collector of taxes of a town, for taxes collected and unaccounted for by him, is one entitled to priority in the order for a dividend, as a " debt due to " the town, under the Pub. Sts. c. 157, § 104, cl. 1. Bent v. Hubbardston, 138 Mass. 99 (1884). 7. Under the St of 1870, c. 325, §3, a town, within the limits therein prescribed, may sub- scribe for the stock of a railroad corporation to be organized under the St. of 1872, c. 53, and become an associate in its formation. Kiltredge v. North Brookfield, 138 Mass. 286 (1885). 8. A town may, by its vote, admit that a person had a settlement therein. West Bridge, water v. Wareham, 138 Mass. 305 (1885). 9. A town cannot raise money by taxation to pay the expense of a committee directed by a vote of a town to procure from the Legisla- ture the passage of an act, which act, when passed, is unconstitutional. Mead v. Acton, 139 Mass. 341 (1885). 10. A town, in November, 1881, voted to appoint a committee to appear before the Legislature and procure certain legislation desired, with authority to employ counsel. The legislation was procured, and the town voted, in September, 1882, to pay the bill of the committee. Three days afterwards, a petition was filed, under the Pub. Sts. c. 27, § 129, to restrain the town from paying the bill. Held, that the petition was seasonably filed. Mead v. Acton, 139 Mass. 341 (1885). 11. In the absence of statutory authoritjr, neither the board of health nor the city council of a city has any power to erect a dam on a person's land, without his consent, for the purpose of abating a nuisance existing on adjacent land. Cavanagh v. Boston, 139 Mass. 426 (1885). 12. A town organized a fire department, built an engine-house, in which its engine was kept, and paid the members of the engine company, who were appointed, from time to time, by the fire engineers. A room in the engine-house was fitted up for the use of the enginemen, with furniture bought with a fund raised by a subscription by citizens of the town, by contributions by members of the company and by tty; town, by prize-money received at a contest with another company, and by an assessment laid upon the members of the company. This furniture was used by each succeeding company in the engine-house 975 TOWN, n. 976 from the time it was placed there. Ten years after its purchase, the members of the then existing company removed the furniture from the engine-house and divided it among them- selves, pursuant to a vote, and subsequently disbanded. Held, that the town could main- tain replevin for the furniture. Brookline v. Sherman, 140 Mass. 1 (1885). 13. If the members of a fire-engine company of a town take and detain, in order to keep it from the succeeding company, property used in furnishing the hall occupied by the com- pany, and for the general purposes of the com- pany, which has been bought from the general funds of the company, and has passed from year to year, to the succeeding company, the members of the new company may maintain replevin for the property without a demand, although, at the time of the original taking, they had not been appointed enginemen. Bis- bee V. Faddea, 140 Mass. 6 (1886). 14. The Superior Court has no jurisdiction, under the St. of 1883, c. 223, of a petition, under the Pub. Sts. c. 27, § 129, by ten tax- able inhabitants of a town, to restrain the town from an alleged illegal expenditure of money. Baldwin v. WUbraham, 140 Mass. 459 (1886). 15. The Pub. Sts. c. 27, § 11, authorizing a " town " to raise money by taxation " for the purpose of celebrating any centennial anniver- sary of its incorporation," refer to the act which was the beginning of its corporate ex- istence, whether as a district or as a town. Hill V. Easthampton, 140 Mass. 381 (1886). 18. Under the Pub. Sts. c. 28, § 13, author- izing the city council of a city, in a manner specified, to appropriate money, not exceeding a cei-tain amount, for armories, for the cele- bration of holidays, " and for other public purposes," a city council may appropriate money for public concerts by a band. Huh- bard v. Taunton, 140 Mass. 467 (1886). 17. The common council of a city passed an order, appointing a special committee to investigate and report to the council the facts relating to a purchase of land by the water board of the city. The chairman of the com- mittee brought a petition to a justice of this court, under the St. of 1883, c. 195, to compel W., from whom the land was bought, to ap- pear and testify before the committee. The justice to whom the petition was presented reserved the case for the full court. It ap- peared at the argument, that the council which passed the order had ceased to exist, and its committee had no further power to conduct any investigation ; that the members of the water board, whose conduct was to be investigated, had been removed from office, and that the city had brought an action against W. and another, to recover money alleged to have been fraudulently obtained by them in the pmxshase and sale of the land. Held, in the exercise of the discretion of the court, that the petitioik should not be granted. Osborne, petitioner, 141 Mass. 307 (1886). 18. At the trial of a complaint on the Pub. Sts. c. 91, § 27, for illegally fishing in a great pond, it appeared that a lease of the pond by the commissioners of inland fisheries had been, , made to the inhabitants of the town in which the pond was situated; that tlie lease was in possession of the town officers, and was le- corded in the town records; and that there were repeated votes appropriating money to • .stock the pond with fish, choosing committees to stock the pond and other committees to look after the pond, receiving and acting on the re- ports of their fish committees, accepting the rules and regulations made by them for the use of the pond, changing the times of fish- ing therein, and directing their fish committee to apply for changes to the commissioners. Held, that these facts afforded ample evidence, as against the defendant, that the inhabitants were lawfully the lessees of the pond ; although there was no formal vote of the town accepting the lease. Commonwealth v. Richardson, 142 Mass. 71 (1886). 19. The selectmen of a town, by a vote of the town, represented to the county commis- sioners that the boundary lines of a certain highway had been lost or become uncertain, and prayed that the way be established and determined. The county commissioners, after due proceedings, adjudged that the highway was a certain number of rods wide, and indi- cated its limits. Held, that the town was not estopped by these proceedings from setting up, as against an abutter, a title in fee in the way. Gaylord v. King, 142 Mass. 495 (1886). 20. The Pub. Sts. c. 110, §§ 15, 16, author- izing a city or town in which an aqueduct is situated to put conductors into the pipes for the purpose of drawing water therefrom in case of fires, and empowering the selectmen to make provisions for taking water for protec- tion against fire, have no application to a water company whose charter does not confer a similar power upon the town in which it is situated, or upon the selectmen. Smith v. Dedham, 144 Mass. 177 (1887). For a case involving the powers of the city of Worcester, under St. 1877, c. 152, obliging five railroads to unite in one station, see Railroad, II. pi. 9. n. Liabilities. 1. St. 1879, c. 150, gave to a town author- ity to construct a dike, to dig a channel in a river, to cut down and remove any trees or brush, and to remove and can-y away any logs, stones, or earth which hindered the free passage of the water, and provided that dam- ages should be determined by the town, and gave to any party aggrieved the right to apply to a jury to revise such- determination. The town by vote appointed a committee to do the work, and authorized it to cause all trees and brushwood to be cut down and removed, and all the logs, driftwood, and other obstructions to be removed and carried away, and to re- move the material excavated to or beyond the dike. Held, that the committee might cause the logs to be burned, if that was the most convenient and prudent way of disposing of them, and might use the material excavated 977 TOWN, II. 978 in the construction of the dike. Held, also, that an action of tort for the conveision of such material could not be niaintained; and that the remedy was that pointed out by the statute. Hull v. Westfield, 133 Mass. 433 (1882). 2. A city caused open paved gutters to be constructed on the sides of a street, and simi- lar gutters to be constructed on other streets leading into it. At the end of the gutters on the principal street were underground drains, leading into a culvert through which flowed a natural watercourse. In consequence of this constructioo, quantities of sand and filth were carried into the watercourse, causing it to overflow upon the plaintiff's land below the culvert, and obstructing the passage of water from a drain which ran from the plaintiff's house to the watercourse. Held, that, if the city had diverted the water from its natural course, and had accumulated it in such quan- tities as to create a private nuisance to the plaintiff, he could maintain an action of tort against the city for the injury caused thereby. Manning v. Lowell, 130 Mass. 21 (1880). 3. A city, which has for compensation granted the right to erect a booth on one of its public squares, for the use and exhibition of an animal, is not liable for an injury occa- sioned by the animal frightening a horse, while exercising upon the highway outside of the booth. Cole v. Newburyport, 129 Mass. 594 (1880), 4. If a city lets rooms in a public building for a sum which includes the use of the rooms let, heating, lighting, and the services of a janitor, the janitor is the servant of tlie city, and the city is responsible for an injury caused by his negligence to a person lawfully there by invitation of the hirer. Warden v. New Bedford, 181 Mass. 23 (1881). 5. A town is not liable to a person, who has been visiting a public building of the town for the purpose of attending an entertainment of a society, to which the free use of the building had been given, for an injury re- ceived by falling into a trench near the build- ing and outside of the highway; and the fact that, before the accident, the town had occa- sionally let the building for meetings and entertainments, is immaterial. Larrabee v. Peabody, 128 Mass. 561 (1880). 6. The city of Boston is not liable for an injury caused to a person on Boston Common by coming into collision with a sled on one of the paths thereon, upon which the city has permitted boys and men to coast in the winter season, and which the city has fitted for that purpose by building a bridge across it at an intersecting path, and by turning water upon it to freeze and render it slippery. Steele v. Boston, 128 Mass. 583 (1880). 7. A town is not liable for an injury occa- sioned to a traveller by a defect in a public common, which has been conveyed to the town upon the condition that it should " for- ever after be kept open as and for a common for the use of the inhabitants of the town," and across which the town has constructed footpaths; and the fact that a portion of the land originally conveyed to the town is occu- pied by a building used in part for the pecu- niary benefit of the town, but which portion is by the conveyance excepted from the condi- tion, and is separated from the common by a fence, does not operate to make the town liable, the accident having happened in a part of the common lemote from the building. Clark V. Waltham, 128 Mass. 567 (1880). 8. If a town votes to construct a way, as ordered by the county commissioners, under the direction of the selectmen, the latter, in the execution of the work, act as agents and not as officers of the town ; and the town is liable for injury to the property of a person caused by the negligence of those employed by the selectmen to do the work. Veane v. Randolph, 132 M.ass. 475 (1882). 9. A child, who is excluded from a public school in a city by a teacher acting without authority from the school committee, cannot maintain an action against the city under Gen. Sts. c. 41, § 11, without first appealing to the school committee. Davis v. Boston, 133 Mass. 103 (1882). 10. While the superintendent of the Com- mon and public gi-ouuds in the city of Boston was attempting to cut down a tree in a street of the city, which belonged to an abutter, a workman employed by him for the city was injured, through the alleged negligence of the supei-intendent. Held, that whether the su- perintendent was acting under the authority of the board of aldermen as surveyors of high- ways, or was acting without authority of law, the city was not responsible to the workman. McCarty v. Boston, 135 Mass. 197 (1883). 11. A city owned a building which was principally occupied by its superintendent of streets. In 1879, naphtha was stored there by the chairman of the committee on fuel and street lights, who was also an alderman of the city. A particular portion of the building was devoted to its storage, to which the city lamp- lighter, an employee of the committee on fuel and street lights, had access. Naphtha was used in the street lights. In 1880, while the naphtha was so stored, an explosion of it took place, but what caused such explosion did not appear. Held, in an action for an injury caused by the explosion, that there was evi- dence tending to show negligence in storing the naphthain the building; and that it could not be ruled, as matter of law, that the city was not liable. Sulliean v. Holyoke, 135 Mass. 273 (1883). 12. The St. of 1881, c. 199, allowing ac- tions of tort against i-ailroad corporations, common carriers, and towns, for loss of life by negligence, does not apply to an action brought after it went into effect for a loss of life occurring before its enactment. Kelley V. Boston Ij- Maine Railroad, 135 Mass. 448 (1883). 13. A city which undertakes the celebra- tion of a holiday, under the authority of the Pub. Sts. c. 28, § 13, (which provides that the city council may appropriate money for such a purpose,) exclusively for the gratuitous amusement of the public, is not liable to an 979 TOWN^ III. 980 action by one who sustains personal injuries through the negligence of servants of the city in discharging fireworks for the purposes of the celebration. Tindley v. Salem, 137 Mass. 171 (1884). 14. The warrant for a town meeting con- tained the following article: " To see what provision the town will make for the better accommodation of the high school, and, if necessary, to raise and appropriate money for the same." At such meeting, the school com- mittee submitted a report, stating that the needs of the high school for more adequate accommodation could be no longer postponed; that, in pursuance of the by-laws of the town, they had caused estimates to be made "of the cost of land and buildings therefor ; " that they recommended the construction of a build- ing in accordance with a certain plan, the estimated cost of which would be a sum named; and that they also recommended an appropriation of that sum, and the appoint- ment of a committee, " to locate and con- struct a new high school." It was voted to accept the report and adopt its recom- mendations ; and a committee was chosen " to carry out said recommendations." Under an article in a warrant for a subsequent town meeting, providing for the consideration of the question of raising money to carry into effect the vote of the former meeting, "rela- tive to a new high school building," it was voted to raise, by taxation and loan, the sum named in the previous appropriation, to be expended in the construction of the high school building. Subsequently, an agreement for the sale and purchase of land in the town, " for the purpose of erecting a high school building," was executed by the owner and by the committee. The town owned many school-house lots of various sizes, on one of which there was a high school building. At the meeting first held, during the discussion of the article under which the committee was appointed, nothing was said as to the pur- chase of any land, A by-law of the town provided that no grant of a sum of money exceeding a certain amount, which was less than that appropriated by the above vote, should be made until estimates had been re- ported to the town. Held, that the commit- tee had no authority to bind the town by an agreement to purchase land. Marsh v. Ded- ham, 137 Mass. 235 (1884). 15. A city is not responsible for damages resulting from work done under the supposed authority of illegal and void votes of the city council; and it is immaterial that the work was done in a negligent manner. Cavanagh V. Boston, 139 Mass. 426 (1885). 16. By the charter of a city, the adminis- tration of all the fiscal, prudential, and muni- cipal affairs of the city was vested in the city council. By the city ordinances, a superin- tendent of highways was to be chosen, who should be removable at the pleasm-e of the city council, and who should act under the direction of the committee on streets, ways, and sewers, which was a committee of the city council; and special provisions showed his subordination to the city council and to its committee. A stone-crusher, owned by the city, and operated, under the direction of its superintendent of streets, for the purpose of crushing rocks and stones to be used in keep- ing the streets of the city in proper condition for travel, upon land belonging to the city, which land for a period of nearly three months was used exclusively in the preparation of materials for repairing the streets and ways of the city, damaged the adjoining land by de- positing dust thereon. Held, that the owner of such land could maintain an action there- for against the city. Waldron v. Haverhill, 143 Mass. 582 (1887). 17. The selectmen of a town, under a vote of the town authorizing it to do so, made a contract with a water company for three years, at a certain rate a year, for the service of a certain number of hydrants. At the ex- pii'ation of the three years, a town meeting was duly called to consider an article in the warrant, to see what action the town would take with reference to a supply of water for fire and other service. Under this article, it was voted, " that the selectmen be authorized to renew the contract for ten years with the " water company at a reduced rate per year. Held, that the contract authorized by the vote did not come within the provisions of the Pub. Sts. c. 27, § 27; and that, by the vote, the town did not incur a debt, within the meaning of the Pub. Sts. c. 29, § 1. Smith v. Dedham, 144 Mass. 177 (1887). III. Town JtlEETiNGS. 1. Under articles in a warrant for a town meeting, " to choose all necessary town officers for the year ensuing," and "to see if the town will accept the provisions of " St. 1871, c. 158, as amended by St. 1873, c. 51, in re- gard to the election of road commissioners, " or do or act anything thereon," the town,' after having accepted the provisions of the statute, may proceed to elect road commission- ers. Wood v. Jewell^ 130 Mass. 270 (1881). 2. Under an article in a warrant for a town meeting, " to see if the town will grant aid to A. for injuries received while in the employ of the town," the town may vote to pay a sum in compromise of A.'s claim against the town. Matthewsv. Westborough, 131 Mass. 521 (1881). 3. In an action by A. against a town to re- cover a sum voted by the town to him as com- pensation for injuries received by him while in the employ of the town, the plaintiff put in evidence the records of the town, from which it appeared that, at a regular town meeting, under an ai-ticle in the warrant to see if the town will grant aid to A. for injuries received while in the employ of the town, the matter - was referred to the selectmen to inquire into the facts and report to the town- what they consider would be a fair compensation to A. for his injuries, in addition to what he has •already received from the town; that, at a subsequent town meeting, the selectmen re- ported the facts of the plaintiffs injuries, and 981 TOWN, IV. 982 that " the town would do well " to pay him a sum named by them; and that, when the report came up for consideration, it was amended by inserting a larger sum instead of that named, and, as amended, it was adopted. The judge instructed the jury, among other things, that the validity o£ the town's action depended upon whether the money was voted as a gratuity, or was voted as a settlemeirt of a claim against the town, which had been made, or might reasonably be expected to be made, founded upon an alleged legal liability; that if there was no legal liability, but the plaintiff made a claim under such circum- stances as to indicate that it was not a mere pretence, but was a real claim founded upon an alleged legal liability, and that claim was made known to the committee, and their re- port was made in reference to it, the vote was valid; that if the town was not legally liable, and no claim was made of any legal liability, and upon the facts of the case no such claim could reasonably be expected to be made, and the plaintiff asked aid because he was poor and deserving of favor, the money was voted as a gratuity, and the town was not liable. Held, that the vote of the town was so far equivocal that parol evidence was admissible in its interpretation; and that the plaintiii had no ground of exception to the instructions given. Matthews v. Westborough, 134 Mass. 555 (1883) ; compare also Same v. Same, 131 Mass. 521 (1881). 4. The authority of tellers, appointed to aid in checking the names of voters and in assorting and counting the votes cast at a town meeting, in accordance with the St. of 1883, c. 229, does not cease with the resigna- tion of the moderator who appointed them, before they have reported the result of the votes. Attorney General v. Crocker, 138 Mass. 214 (1885). 5. The record of a town meeting showed that a moderator was chosen with the use of the check list; that a vote was then passed that the check list be used in the election of town officers and upon the question of grant- ing licenses, and no other, without a vote of at least one half the meeting; that the mod- erator resigned; and that another person was elected moderator, and acted as such. Held, that, whether the record showed that this person was elected by ballot and by the use of the check list or not, it sufficiently showed that he was a moderator defaclo. Attorney General v. Crocker, 138 Mass. 214 (1885). 6. While the Sts. of 1870, c. 325, and of 1872, c. 53, were in force, a warrant for a town meeting contained the following articles : " To see if the town will vote to subscribe for and hold shares in the capital stock of " a cer- tain railroad corporation, to be formed under the St. of 1872, c. 53, for the purpose of build- ing a railroad from that town to another; "to see if the town will vote to become an associate for the formation of" the railroad; and " to see what action the town will take in regard to raising money to aid in building " the railroad. At the meeting held in pur- suance of this warrant, the town voted to sub- scribe for the stock of the railroad corporation to a certain amount, and to become an asso- ciate for the formation of the corporation ; and, in order to pay this subscription, voted to authorize its treasurer to borrow a sura not exceeding that subscribed, "in amounts as may be required by the directors," and to give therefor the notes or bonds of the town payable to a certain amount in each year. Bonds were issued in pursuance of this vote, and taxes were levied in each year to meet the bonds falling due. Held, in an action to re- cover back such taxes paid under protest, that the warrant was sufficient; and that the votes of the town thereunder were valid. Kittredge V. North Brookjield, 138 Mass. 286 (1885). 7. The Pub. Sts. c. 102, §§ 40, 47, prohibit the erection of a stationary engine within five hundred feet of a dwelling-house or public building, without a license, in any city or town in which the St. of 1862, c. 74, has been adopted at a legal meeting of the city council of the city or the inhabitants of the town called for that purpose. Held, that the re- quirement that the adoption of the statute shall be at a meeting called for the purpose is limited to an adoption by the inhabitants of a town, and does not apply to the action of a city council. Quinn v. Lowell Electric Light Corporation, 140 Mass. 106 (1885). IV. Or Town Officers. As to surveyors of highways, see Wat. See also Board of Health; Bond; Po- lice Officer; Public Officek. 1. If a person nominated for an office by the mayor of a city is not duly confirmed in the manner prescribed by St. 1876, c. 80, pro- viding that " in all cases in which appoint- ments are directed to be made by the mayor and aldermen in any city of the Common- wealth, the mayor shall have the exclusive power of nomination, being subject however to confirmation or rejection by the board of aldermen," the facts, that the mayor an- nounces that he is confirmed, without objec- tion by the aldermen, that they approve his bond after he has taken the oath of office, and that he performs the duties of the office, do not supply the want of the proper vote of confirmation, and one so nominated can be confirmed only by receiving the votes of a majority of the aldermen voting. Common- wealth V. Allen, 128 Mass. 808 (1880). 2. The election of a water commissioner of a town was required by statute to be by ballot, and at the annual town meeting for the elec- tion of town officers. The moderator of the meeting at which such officer was to be voted for appointed a committee of five citizens to count the ballots cast, who reported to him, and he announced the vote, and a certain per- son was declared elected by a majority of one vote. A motion was thereupon made and carried that the votes be recounted by a new committee. The moderator then appointed a new committee, who recounted the votes, and 983 TOWN, IV. 984 reported that another person was elected by a majority of one vote, and the moderator so de- clared the vote, stating that it so appeared by the recount. No objection was made to this declaration. The ballots were not preserved, and it did not appear where the ballot-box was during the time that elapsed between the first declai'ation and the recount. Held, on a petition for a writ of mandamus by the person declared to be elected on the recount, that he was entitled to the office; and that mandamus was the proper remedy. Putnam v. Langley, 133 Mass. 204 (1882). 3. The election of road commissioners by a town, under a proper warrant therefor, is not illegal because they are chosen at a special meeting called for that purpose, nor because St. 1871, 0. 158, providing for the election of road commissioners, is accepted at the same meeting. Walker v. West Boylslon, 128 Mass. 550 (1880). 4. If, by the by-laws of a city, a certain committee has charge of its public building, subject to such rules as the city council may adopt, and the committee, for several years, in the absence of any such rules, has been in the habit of letting the building for occasional use, and paying the money received therefor into the city treasury, the authority of the committee so to act will be presumed. Warden V. New Bedford, 131 Mass. 23 (1881). 5. Since St. 1875, c. 209, an action cannot be maintained against a town on a promis- sory note given by its treasurer for borrowed money, unless the vote of the town authorizing the b-easurer to borrow money shows either that the debt was in anticipation of the taxes of the year iu which the debt was incurred, and of the year next ensuing, and expressly made payable therefrom, or that the vote was passed by two thirds of the legal voters pres- ent and voting at a legal meeting. Agawam Bank V. South Hadley, 128 Mass. 503 (1880). 6. If a town treasurer borrows money in a manner unauthorized by St. 1875, c. 209, the lender cannot maintain an action against the town to recover it back, although the money is used by the treasurer in payment of debts of the town. Agawam Bank v. South Hadley, 128 Mass. 503 (1880). 7. If the superintendent of streets of a city, with men in the employ of the city, enters upon a person's close, pursuant to a vote of the board of aldermen, but the act is not done under any vote of the city council, or in ref- erence to any property which the city claimed to own, or in performance of any work which the city was specially authorized to do, or in which the city had a corporate interest dis- tinct from that of the inhabitants generally of the Commonwealth, the city is not liable to an action by the owner of the close. Man- ners V. Haverhill, 135 Mass. 165 (1883). 8. The records of the board of railroad commissioners contained a vote that the board approved the relocation of a passenger station of a railroad corporation, " as pro- posed by the selectmen " of the town. The records of the selectmen contained a vote, written by the town clerk, who was not a member of the board or sworn as its clerk, but who acted as such, that the station "be relocated " at the place named, " in concur- rence with the vote of the railroad commis- sioners." Held, that there was an "approval in writing" by the railroad commissionere and by the selectmen, within the Pub. Sts. c. 112, § 157. Attorney General v. Eastern Railroad, 137 Mass. 45 (1884). 9. At a town meeting, after the votes for town officers had been c'ast, but before the re- sult was announced, the moderator and clerk resigned their offices. The selectmen, who were not present at the meeting, appointed, in writing, C. town clerk pro tempore. C. ap- peared and was duly sworn, and made a record of his appointment and qualification, and of the subsequent doings of the meeting, which included the election of a moderator, the an- nouncement of the vote for town officers, the declaration of the persons elected, the vote to adjourn the meeting, and the resignation of C. as clerk pro tempore. Held, on an informa- tion by the Attorney General in the nature of a quo warranto against the persons elected, that C. was a town clerk de facto at the meeting, although the selectmen had no authority, un- der the Pub. Sts. c. 27, §§ 80, 97, 98, to ap- point a clerk at that time, and notwithstand- ing one voter protested against the validity of the election; that his record was admissible in evidence; and that the officers elected were entitled to their offices. Attorney General v. Crocker, 138 Mass. 214 (1885). 10. Mandamus does not lie to compel the marshal of a city to station a police officer at a certain place, in accordance with an order passed by the board of aldermen. Alger v. Seaeer, 138 Mass. 331 (1885). 11. The office of collector of taxes of a town being vacant, the selectmen orally agreed to appoint A. collector. A paper purporting to be such an appointment was signed by one of the selectmen, who also, without any other authority than that implied by the oral agree- ment, signed the names of the other select- men to the paper, and it was delivered to A. He subsequently took the oath of office, and gave bond in such sum as the selectmen re- quired. After this the selectmen, as assessors of taxes, committed to him a warrant to col- lect the taxes. Held, that his appointment was not in compliance with the Pub. Sts. c. 27, § 90 ; and that he could not maintain an ac- tion against the town to recover compensation for his services in collecting the taxes. Phe- Ion V. Granville, 140 Mass. 386 (1886). 12. An action will lie against the selectmen of a town by a person whose name is wrong- fully erased from the register of votei-s, re- quired to be kept bv the Pub. Sts. c. 6, § 13. LarnedY. Wheeler,'UO Mass. 390 (1885). 13. Mandamus wiU not lie to compel the mayor of a city to sign a license, granted by the board of aldermen of the city to the peti- tioner, to be a common victualler, if the mayor is not satisfied that the petitioner has complied with all the provisions of the Pub. Sts. c. 102, § 8, so as to entitle him to a license. Deehan V. Johnson, 141 Mass. 23 (1886). 985 TOWN, V. 986 14. H the record of the clerk of the board of aldermen of a city states that a certain vote was in concurrence with the vote of the common council, when the whole record shows that the vote was an independent one, the erroneous statement need not be regarded. Saunders v. Lawrence, 141 Mass. 380 (1886). 15. The ordinances of a city provided that a city solicitor should be chosen annually by concurrent vote of both branches of the city council; and that either branch of the city council might fli'st elect said officer. The rules and orders of the city council provided that, when either board should not concur in the action of the other, written notice of such non-concurrence should be given to the other board. On January 9, at a regular meeting of the common council of said city, A. was declared elected city solicitor on the part of that board, and notice of his election was sent on that day to the board of aldermen. At a regular meeting of the board of aldermen on the same day, the notice of A.'s election on the part of the common council was received, and the board of aldermen refused to concur in said election. The board of aldermen, after several ballots for city solicitor, which resulted in no choice, adjourned to January 11, when A. was declared elected to that office on the part of that board. The next meeting of the common council was held on January 16, when notice was received that the board of aldermen, at a meeting held on January 9, had voted to non-concur in A. 'a election; and, at the same meeting, notice was also received that, at a meeting of the board of aldermen held on January 11, A. was elected city soli- citor on the part of that board. The common council then non-concurred with the board of aldermen in A.'s election, and sent notice of such non-concurrence to that board; and B. was elected city solicitor on the part of the common council. Notices of the non-concur- rence in A.'s election, and of the election of B., on the part of the common council, were received by the board of aldermen, which sub- sequently elected B. city solicitor in concur- rence with the common council. Held, that A. was not elected city solicitor by concurrent vote of both branches of the city government. Saunders V. Lawrence, 141 Mass. 380 (1886). 16. The Pub. Sts. c. 32, § 12, provide that the clerk of each city or town shall receive from the city or town certain fees for record- ing marriages and deaths, and that a city or town containing a certain number of in- habitants " may limit the aggregate com- pensation" allowed to the clerk. The city council of a city containing the number of in- liabitants specified passed a resolution making the salary of the clerk a stated sum, and pro- viding that he should " account for all moneys received in his official capacity." Held, that the clerk was not entitled to the fees above mentioned in addition to his salary. Shepard V. Lawrence, 141 Mass. 479 (1886). 17. The fees received by the clerk of a city for licensing dogs, under the Pub. Sts. c. 102, § 84, allowing him to retain to his own use a certain sum for each license issued, the balance to be paid into the treasury of the county, are not received in his "official capacity," within the meaning of a resolution of the city council fixing his salary at a stated sum, and provid- ing that he shall account for all moneys re- ceived in such capacity. Shepard v. Lawrence, 141 Mass. 479 (1886). 18. Neither the selectmen of a town nor its highway surveyors have power, without a vote of the town authorizing it, to make a contract for the construction of a way ordered by the county commissioners, and pledge the credit of the town therefor; and a vote of the town appropriating a certain sum " for highways " does not confer such authority. Beari v. Hyde Park, 143 Mass. 245 (1887). V. Or THE Division op Towns. See also Guardian, pi. 1. 1. Under St. 1880, c. 18, dividing one town and incorporating another, and providing that in case said towns should not agree in respect to a division of debts, unpaid taxes, state or county taxes, or support of paupers, the Su- perior Court should, upon petition of either towuj appoint three commissioners to hear the parties and determine the matters of dif- ference, that their award, being accepted by said court, should be final, and that the court might make any order or decree upon the award, but it should not be set aside except for fraud or manifest error, in which case the court might recommit the award or appoint new commissioners, neither party has a right of appeal from the decision of the Superior Court accepting an award of commissioners appointed pursuant to the statute. Cottage City V. Edgartown, 134 Mass. 67 (1883). 2. The St. of 1881, c. 172, incorporating a part of the territory of a town into a new town, provided, in § 6, that "the annual ex- cess, if any, of maintaining the public schools" in the part remaining after the division, over and above the expense of maii.taiiiing the public schools in the new town, should be ascertained " on the basis of the average number of scholars in the public schools of legal school age " for the preceding year ; and the new town should pay of such excess in the proportion which its valuation, in the pre- ceding year, bore to the valuation of the part remaining in the old town ; and that the new town should pay to the old town " a sum of money, the annual interest of which, at five per cent, shall equal in amount the part of such excess." Held, that " the average num- ber of scholars in the public schools" meant the average membership of the public schools, as shown by the school register, and not the average attendance. Held, also, that " of legal school age " included all members of the public schools under twenty-one yeai-s of age. Held, also, that the grades of the schools in the two towns could not be taken into con- sideration. Held, also, that interest on the cost of the school-houses could not be in- cluded in estimating the expense of main- taining the schools for the preceding year. 987 TRESPASS. 988 Held, also, that interest on the amount the new town was to pay the old did not begin to run until the final decree on a petition, provided for by the statute, for commissioners to determine the amount to be paid. Need- ham V. Wellesley, 139 Mass. 372 (1885). TKADE-MAEK. 1. Numerals, arbitrarily selected, and used on goods in combination with other devices to denote the origin of the goods, and not their quality, are a valid trade-mark; and a person who uses them, in combination with other de- vices which he has a right to use, may be re- strained by a bill in equity from so using them, if he does so for the purpose of imitat- ing the trade-niai-k, and his use is calculated to deceive, and does deceive, persons buying his goods. Lawrence Manujfacluring Co. v. Lowell Hosiery Mills, 129 Mass. 325 (1880). 2. If a person can have a trade-mark in the ■words " East Indian " in connection with the word "remedy" upon bottles of medicine (which is at least doubtful), yet if he has falsely adopted and used these words to de- note, and to indicate to the public, that the medicines were used in the East Indies, and that the formula for them was obtained there, he cannot maintain a bill in equity to restrain an infringement of such trade-mark. Con- nell V. Reed, 128 Mass. 477 (1880). 3. The right to use a trade-mark which is not strictly personal, passes to an assignee in insolvency. Warren v. Warren Thread Co., 134 Mass. 247 (1883). 4. The trade-marks " A. N. Hoxie's Min- eral Soap,'" and "A. N. Hoxie's Pumice Soap," are assignable; and if the assignee uses them to denote soaps made according to the formulas of A. N. Hoxie, and not to de- note that they are made by said Hoxie, he may maintain a bill in equity to restrain an infringement of the trade-marks. Hoxie v. Chaney, 143 Mass. 592 (1887). 5. A manufacturer, who had acquired trade- marks in two kinds of soap manufactured by him, entered into a partnership with another, under articles in writing by which he con- tributed the good-will of the business he was carrying on, with the tools, implements, and fixtures. On the dissolution of the partner- ship, he conveyed to his former partner, by a bill of sale, "the following goods and chattels, namely : All my right, title, and in- terest in and to all and singular the partner- ship property belonging to the firm, meaning hereby to sell and convey all my interest in the entire assets of the firm." Held, that the trade-marks became, by the articles of copart- nership, a part of the property of the firm; and that they passed by the bill of sale. Held, also, on a bill in equity by the purchaser under the bill of sale to restrain the seller from mak- ing and selling said two kinds of soap, from using wrappers bearing the trade-marks, and from doing matters tending to injure and impair the good-will of the business, that the plaintifl was entitled to an injunction, ex- cept as to the making and selling the soap. Hoxie V. Chaney, 143 Mass. 592 (1887). TREE. See Town, II. pi. 10. In an action, brought in 1884, for cutting down shade trees, it appeared that they were planted by the plaintiff, in 1866 or 1867, in front of his house, and within the limits of the highway, the fee of which was in the town;, and that the defendant was acting under authority from the selectmen of the town. Held, that the provision of the Pub. Sts. c. 54, § 6, relating to "shade trees stand- ing," did not apply; and that there was no conclusive presumption of law that the plain- tiff had a license to plant them. Gaylord v. King, 142 Mass. 495 (1886). TRAVELLER. See Carrier; Lord's Day; Railroad; Street Railway; Way. TRESPASS, AND ACTION OF TORT IN THE NATURE OF TRESPASS. See also Dog ; Judgment, pi. 5, 6 ; Par- ties TO Actions; Partkership, V. pi. 3; Pleading II. pi. 6; Replevin; Trover. 1. If, in an action of tort for breaking and entering the plaintiff's close, the plain tift' does not assert or prove any injury to the reversion of the premises, but relies only upon his pos- session at the time of the trespass sued for, and the judge, who tries the case without a jury, finds, as matter of fact, that he was not in possession, a ruling, as matter of law, that he cannot maintain the action, is right. Dear- born V. Wellman, 130 Mass. 238 (1881). 2. If the owner of land is disseised while in possession, he may maintain an action of trespass for the act of disseisin ; and it is im- material that the declaration alleges, as ag- gravation of the entry, acts which the plaintiff is not permitted to prove. Murray v. FUch- burg Railroad, 130 Mass. 99 (1881). 3. A disseisee who enters upon the land of which he is disseised and removes a fence therefrom, against the wishes of the disseisor, is liable to an action of trespass by the latter, although the entry is made without a breach of the peace, and the effect of it, followed by abandonment of possession by the disseisor, is to give to the disseisee a good title to the land. Ramon v. Ward, 128 Mass. 552 (1880). 4. A declaration, alleging an interference with the plaintiff's right to cut and remove TRESPASS. 990 standing timber, is not sustained by proof that he had the seisin or the possession of the timber, without proof that he had the right to cut and remove it. Putnam v. Lewis, 133 Mass. 284 (1S82). In such action the defendant may show that the plaintiff's grantor had, previously to the deed to the plaintiff, and under which he claims, conveyed all his right in said land, although the defendant does not claim under such conveyance. Putnam v. Lewis, 133 Mass. 281: (1882). 5. If a railroad is laid out through a man's land, and he afterwards gives a deed of the location to the railroad company, and acquires a ri^ht of way across the location by adverse possession for more than twenty years, he may maintain an action of tort for the obstruction of the way by the railroad corporation ; and the St. of 1874, c. 372, § 105, does not apply. Fisher v. New York Sj' New England Railroad, 135 Mass. 107(1883). 6. In an action against a city for breaking and entering the plaintiff's close, the answer to which alleges that a part of the close is within the limits of a town way, the plaintiff is not estopped by deeds put in evidence by the defendant, under which the plaintiff's title is derived, from showing where the location of the way is, there being no privity of title between the plaintiff and the defendant. Man- ners V. Haverhill, 135 Mass. 165 (1883). 7. If, in an action for breaking and enter- ing the plaintiff's close, the plaintiff relies on a possessory title merely, and the defendant puts in evidence the deeds of the plaintiff's land, the latter is not entitled to a ruling that those deriving their title through a deed to one of the predecessors in title to the plaintiff took no more than was conveyed to such pre- decessor. Manners v. Haverhill, 135 Mass. 165 (1883). 8. In an action for trespass and assault, in ejecting a tenant at will, the defendant justified as agent of a lessee of the premises, testifying that he, as owner, executed and de- livered a written lease of the premises to the lessee, who signed the lease, and also a written notice to the plaintiff to vacate the premises, and handed them both to the defendant, say- ing, " Go ahead and get possession." There was no other evidence as to the execution and delivery of the lease and notice, or of the de- fendant's authority to act for the lessee. Held, that the plaintiff was entitled to go to the jury upon the defendant's evidence. Twombly v. Monroe, 136 Mass. 464 (1884). 9. A declaration, in an action of ejectment by A. against B., alleged a lease by P. to F. of a certain parcel of land, for a term of years, entry into possession by F., an assignment of the lease to A., and an ejection thereafter by B. Held, that this was a sufficient declaration of ejectment of a term to authorize a judgment for possession and for damages, and was not a declaration merely in trespass. Hodgkins v. Price, 137 Mass. 13 (1884). 10. In an action for breaking and entering the plaintiff's close, and placing thereon a quantity of earth, the benefits to the plain- tiff's land arising from placing the earth upon it may be considered in estimating the amount of damages, although the answer contains a general denial only. Marjo v. Springfield, 138 Mass. 70 (1884). 11. A cause of action for breaking and en- tering the plaintiff's close cannot be joined in one count with one for malicious prosecution. Allen V. Codman, 139 Mass. 136 (1885). 12. By an accident to a freight train on the Troy and Greenfield Railroad, (then operated by the Fitchburg Railroad Company under a contract, by the terms of which the manager of the first-named road was authorized, in case of an accident thereon, to direct the cleaving of the road when necessaiy to prevent delay to other roads,) a large number of swine were let loose from the train, and scattered on and about the tracks. The manager directed his servants to collect them, and put them in a safe place. The servants took them to the barn-yard of the plaintiff, in his absence and without his license. On his return, he did not assent or object. He was asked to feed the swine, and did so, and collected a few of them himself, placing them in his yard. Afterwards he assisted in taking them away, and sent a bill for food and services, and for the dam- age done to his grass. Neither the plaintiff nor the manager knew that the swine were diseased at the time they were in the plain- tiff's yard, bnt it afterwards appeared that the swine were then diseased, and that the disease was communicated to the plaintiff's swine a few minutes after the swine were placed in his yard. Held, in an action against tlie manager for the loss thus sustained, that the manager acted within the general scope of his authority. Held, also, that it could not be ruled, as matter of law, that the manor ger had been guilty of a trespass, and was lia- ble forthe loss of the plaintiff's swine. Hawks V. Locke, 139 Mass. 205 (1885). 13. A tenant in common of land, who re- moves, without doing any unnecessai-y dam- age thereto, a structure placed upon the land by his cotenant without his assent, which ex- cludes him from that portion of the land, is not liable to an action in the nature of tres- pass by his cotenant; nor can an action be maintained against him under the Pub. Sts. c. 179, §§ 6, 7. Byam v. Bickford, 140 Mass. 31 (1885). 14. An action of tort in the nature of tres- pass for mesne profits cannot be maintained by a lessor against a mortgagee, who makes a formal entry upon the premises, in tlie pos- session of a tenant, to foreclose his mortgage, in the absence of evidence showing any actual possession, or any reception of the rents and profits, or any ouster of the plaintiff by the de- fendant, even if the mortgage is invalid. Baker V. Kimball, 140 Mass. 120 (1885). 15. In an action of tort, brought in 1876, for breaking and entering the plaintiff's close and taking sea-weed therefrom, it appeared that the locus was a beach upon the sea-shore, which with the upland had been conveyed to the plaintiff, in 1824 and 1826, by his father; that the deed to the father, given in 1795, by 991 TEOVER. 992 its description did not include the beach ; that the defendant showed no record title to the beach ; that the plaiotifi and his grantor had sold stones and gravel from the beach, and had taken sea-weed therefrom; and that the defendant and his grantor had, for sixty years, taken sea- weed from the beach under a claim of right. Held, that the judge, who tried the case without a jury, was not bound to find that there was a lost deed of the beach to the plaintiff's grantor; and was justified in find- ing for the defendant. Litchfield v. ferguson, 141 Mass. 97 (1886). 16. In an action of tort for breaking and entering the plaintiff's close, it appeared that the defendant acted under a claim that he had a right of way over said close as appurtenant to two parcels of land, vfhereas, in fact, he had the right as appurtenant to one parcel only. Held, that it was rightly ruled that the de- fendant was not a trespasser. Hayes v. Di Vito, 141 Mass. 233 (1886). 17. An owner of land which is in the actual possession of a tenant cannot maintain an action of tort in the nature of trespass for an act which is not alleged in the declaration to be an injury to the reversion. Bascom v. Dempsey, 143 Mass. 409 (1887). TRIAL. See Practice. TRIAL JUSTICE. See Appeal; Jdstice of the Peace; Police Courts; Scire Facias. TROVER, AND ACTION OF TORT IN THE NATURE OF TROVER. See Action ; Agent, VII. ; Attachment, 11. pi. 1 ; Auditor, pi. 6 ; Bailment ; Car- rier; Damages, II.; Landlord and Ten- ant, I. pi. 1 ; Mortgage, IV. pi. 8, 9 ; New Trial, VI. pi. 3; OrFiCER, pi. 3; Personal Property, pi. 4, 5, 6; Pleading; Replevin; Trespass. 1. If the grantor in a bill of sale of per- sonal property, acknowledging receipt of the consideration therein named, retains posses- sion of the property and again sells it, the second sale, and not a refusal to deliver the property to the first purchaser upon a subse- quent demand, constitutes a conversion. Phil- brook v. Eaton, 134 Mass. 398 (1883). 2. The owners of grain stored, according to the usual course of business, in an eleva- tor of the railroad corporation transporting it, are tenants in common in proportion to their respective interests; and a delivery by the corpoi'ation of the quantity of grain be- longing to one of such owners to a person unauthorized to receive it, is a conversion, for which an action of tort in the nature of trover will lie by the owner against the cor- poration. Forbes v. Fitchburg Railroad, 138 Mass. 154 (1882). 3. A pui'chaser in the possession of prop^ erty bought of a debtor, an assignment of whose estate has been made under the insol- vent law, part of which property so sold be- longed to him before his insolvency, and part of which was acquired afterwards, may main- tain an action of tort in the nature of trover against a person who attaches the property as that of the insolvent. Taber v. Lawrence, 134 Mass. 94 (1883). 4. Evidence that a person, claiming title in a case, wrongfully removed from the case certain glass plates, and left them with the person in whose custody the case had been, and took the case away, is not sufficient to maintain an action for the conversion of the plates, even if the owner of them was igno- rant that they were left with such person. Farnsworlh v. Lowery, 134 Mass. 512 (1883). 5. The entering upon land and cutting tim- ber by the agent of a person, under a claim of right, operates to put the latter into posses- sion of such timber as is severed, and gives him sufficient title to maintain an action for the conversion of the timber as against a per- son having no right in it. Putnam v. Lewis, 133 Mass. 264 (1882). 6. An administrator, upon proof of the ex- ecution of a formal bill of sale of personal property to his intestate, acknowledging re- ceipt of the consideration therein named, and proof of a subsequent sale of the same prop- erty by the grantor, is prima facie entitled, in an action for conversion against the latter, to recover the value of the property at the time of the subsequent sale. Philbrook v. Eaton, 134 Mass. 398 (1883). 7. Demand and refusal are never necessary, except as furnishing evidence of an unlawful taking or detention against the rights of the true owner, in an action of replevin, or of an unlawful conversion in an action of trover. When the circumstances, without these, are sufficient to prove such takiug or detention, they are superfluous. Devkns, J., in Ed- munds V. Hill, 133 Mass. 445 (1882). 8. If a broker agrees to buy and hold cer- tain stock for a customer, who pays a part of the purchase money, agreeing to pay interest ' on the sums advanced by the broker, and, in case the stock depreciates in value, to make a " margin " of a certain sum per share in ex- cess of the market price, this does not create the relation of pledgor and pledgee between the parties; and if, after the failure of the customer to make the necessary advances up on demand, the stock having depreciated in value, the broker sells the same at the broker's board without notice to the customer, he is not liable for a conversion of the stock. CoveU V. Loud, 135 Mass. 41 (1883). 9. If the master of a vessel, which has drifted upon a beach in a damaged condition, 993 TROVER. 99i sella her, without right, to a person who, after repairing her, getting her off, and taking her into port, sells her hull to another person, the latter is liable for the conversion of the hull ; and, in an action against him by the owner, the measure of damages is the market value of the hull, at the time and place of the conver- sion. Glaspy V. Cahot, 135 Mass. 435 (1883). 10. If the master of a vessel, which has drifted upon a beach in a damaged condition, sells her, without right, to a person who re- pairs her, gets her oil, and takes her into port, the buyer is liable for her conversion ; and, in an action against him by the owner, the meas- ure of damages, if there is no market at the place where she lay when bought, is her value there, determined by her value at a port where there is a market for such a vessel, less a rear sonable allowance for the probable cost of re- pairing her, getting her off, and taking her into port, and for diminution in her market value on account of having been ashore, and for the risk of getting her to market. Glaspy V. Caboi, 135 Mass. 435 (1883). 11. Where there is a joint conversion of personal property by several persons, the owner of the property may elect to sue some of them jointly, and, at the same time, may maintain another action against one of thetn separately. McAooy^. Wright, 137 Mass. 207 (1884). 12. In an action for the conversion of a wagon, evidence of the market value of the wagon four months befoi'e the conversion is not too remote. McAvoy v. Wright, 137 Mass. 207 (1884). 13. In an action against an officer for the conversion of certain fish traps, with a count for deceit, the defendant's bill of exceptions stated that the defendant, by virtue of a writ against the present plaintiffs, attached certain personal property of theirs on a certain wharf, but did not attach the traps in question ; that, at this time, the plaintiffs had spread upon a field, at some distance from the wharf, the traps in question, for the puipose of drying them; that the defendant told the plaintiifs that all their personal property was attached, and the plaintiffs requested the defendant to store the traps, as they were perishable ; that the defendant told the plaintiffs that if they meddled with the traps it would be at their peril; and that the traps were not taken care of, and were destroyed by the action of the weather. The bill of exceptions further set forth, that one of the plaintiffs lived near the field where the traps were, and saw them a number of times; and that a son of the other plaintiff, who was in his employ, saw the traps nearly every day, and talked with his father about them; and that none of them saw the defendant or any one as keeper of the traps on the field, or in possession of them. Held, that, if the officer told the plaintiffs that he had attached the traps, with the intention that they should believe and act upon such statement, this was a representation of fact; and that, if they, in the exercise of reason- able care, believed the statement, and, be- cause of that belief, refrained from taking care of the traps, so that they perished, the BUPPLEMKNT. — 32 action could be maintained. Burns v. Lane, 138 Mass. 350 (1885). 14. A mortgagor of personal property, who has not the right to the possession of the prop- erty, cannot maintain an action of tort in the nature of trover against his mortgagee, for taking possession of and selling the property without notice to the mortgagor. Wells v. Connable, 138 Mass. 513 (1885). 15. In an action of tort by A. against B. for the mutilation and conversion of a promis- sory note, A. testified that B. agreed to take an interest in the business of A. and furnish a part of the capital; that, to raise money therefor, A. and B. made a promissory note payable to bearer, which was delivered to A. to get discounted; that A. procured the money on his own note, and gave the money to B ; that A. did not, until the trial, notify B. that he had not procured the money on the joint note and afterwards taken it up; that he demanded of B. payment of his part of the amount, but B, denied liability, and asked to see the note, and, on receiving it, cut out his name, against A.'s remonstrance; and that the partnership had never been settled. B. testified that he signed the note, not as a part- ner, but for the accommodation of A., who was to pay it himself ; and that he cut his name from it with A.'s assent, and after a, full settlement. The judge submitted to the jury certain questions, and their answers showed that B. did not sign the note for A.'s accommodation, but for the purpose of having A. raise money for a business in which A. and B. were jointly interested; that B. did not take his name from the note with A.'s con- sent, but against A.'s will, and wrongfully. Held, that the questions failed to submit to the jury all the material issues of fact, and that it was error to order, against B.'s objection, a general verdict thereon. Held, also, that if A. and B. were partners, A. could not main- tain against B. an action at law for mutilating the note until a settlement of their joint in- terests was had. Held, also, that an action would not lie against B. for conversion of the note, without proof that A. was individually entitled to its possession^ and that B. had wrongfully deprived him thereof. Couilliard V. Eaton, 139 Mass, 105 (1885). 16. If, after the bringing of an action by a mortgagor against a third person for the con- version of the mortgaged property, the mort- gagee takes possession of it for breach of the condition of the mortgage, such taking is an application of the property for the benefit of the mortgagor, and should be considered by the jury in mitigation of damages, although the foreclosure was not complete at the time of the trial, and although the mortgagee has sold a portion of the mortgaged property, and has transferred another portion to the defendant. Dahill V. Booker, 140 Mass. 308 (1885). 17. The making of a second mortgage of personal property, after the bringing of an action by the mortgagor against a third per- son for the conversion of the same, is not an abandonment of the cause of action. Dahill v. Booker, 140 Mass. 308 (1885). «**ij^ 995 TROVER. 996 18. In an action for the conversion of a promissory note, several months before its maturity, evidence of the financial condition of the maker of the note at its maturity is inadmissible upon the question of damages. Kellogg v. Tompson, 142 Mass. 76 (1886). 19. The heirs at law of a mortgagor of land cannot maintain trover against an as- signee of the mortgage, in possession for breach of condition, before foreclosure, for cutting and carrying away trees growing on the land. Place v. Sawiell, 142 Mass. 477 (1886). 20. In an action against A. and B. for the conversion of certain goods, the plaintiff's evidence showed that A. was introduced to the plaintiff by B., who had previously bought goods of the plaintiff, as a person desirous of buying goods of the plaintiff on credit; that A. then signed, in B.'s presence, a written statement, showing his assets and liabilities, and B. also made to the plaintiff oral repre- sentations in regard to A.'s pecuniary respon- sibility; that the plaintiff, relying upon the statement and these representations, sold the goods in question to A. on a credit of thirty days; that B. was present during the sale, and assisted in the selection of the goods by A. ; that a bill of parcels was made out to A., and the goods were shipped, according to A.'s directions, in a cEise marked with his name, to his place of business ; that the plaintiff after- wards saw the goods exposed for sale, and the case in which they were shipped, unpacked, in B.'s shop ; that, at the end of the thirty days, A. was unable, when called upon, to pay for the goods ; and that B. refused, upon demand, to pay for them. Held, that there was no evidence of a conversion by A. and B., jointly or severally. Bates v. Youngerman, 142 Mass. 121 (1886). 21. If the mortgagor of personal property consents to the removal of the property from his possession by a third person, such removal does not amount to a conversion of the prop- erty; and the mortgagee cannot maintain an action therefor against such person. Jones v. Goodwillie, 143 Mass. 281 (1887). 22. If personal property of two persons is mingled, and one makes a bill of sale of his own, reserving the rights of all other persons, such sale does not of itself amount to a con- version of the property of the other. Jones V. Goodwillie, 143 Mass. 281 (1887). 23. If the personal property of A. and B. is mingled, and, while in the possession of B., the claim of A. to a portion of the property is not conti'overted by B., who tells A. to take his own, this does not of itself amount to a conversion of A.'s property, although B. has previously sold the whole to a third person. Jones V. Goodwillie, 143 Mass. 281 (1887). 24. If goods, consigned by A., the owner, to B., and of which A. has the right of im- mediate possession, are attached by C. upon a writ against B., and C. refuses to deliver them to A. upon his demand, B. having also notified C. of A.'s ownership of the goods and direct- ed their delivery to him, A. may maintain an action of tort in the nature of trover against C. for the goods. Clark v. Dean, 143 Mass. 292 (1887). 25. In an action against A. and B. for the conversion of certain goods, evidence is inad- missible, under the Pub. Sts. c. 78, § 4, of oral representations or assurances made by B., in regard to the credit and pecuniary re- sponsibility of A., that A. might obtain credit of the plaintiff, for the purpose of sliowing that the plaintiff was fraudulently induced to sell the goods in question to A. Bates v. Youngerman, 142 Mass. 120 (1886). 26. A. sold to B. goods in bond, subject to the payment of the government tax thereon. While the goods were in bond and the tax un- paid, B. died, and C. was appointed adminis- trator of his estate. C. wrote to A., asking to be informed when the time would expire for withdrawing the goods, and stating that B.'s widow would like to sell the goods where they were, if she could, and, if she could not, the tax would be forwarded to A. A. there- upon paid the tax on the goods, which C. re- paid to him ; and A. gave C. a receipt, stating that he had received of C. as administrator of B. a certain sum for the tax advanced by A. on the goods, " held by me for B.'s widow." C. then gave A. an order to forward the goods to him "for account of B.'s widow." A. afterwards attached the goods as the property of B.'s widow, and sold them in satisfaction of a debt due from her to him. Held, that C. was not estopped from maintaining an ac- tion against A. for the conversion of the goods. Moore v. Spiegel, 143 Mass. 413 (1887). 27. In an action for the conversion of a horse, carriage, and harness, both parties claimed title, to the property in controversy under bills of sale from A. ; and one of the questions was whether the plaintiff, either personally or by his agent, retained posses- sion of the property named in the bill of sale to him. It appeared that the property was in the livery and boarding stable of the defend- ant ; that the plaintiff and A. went to the stable, the defendant being absent, and A. delivered the property to the plaintiff, who thereupon took a receijft, signed by B. as agent of the defendant, reciting that the prop- erty was received of the plaintiff for board and storage; and that B. was the defendant's foreman, accustomed to attend to his busi- ness in his absence. The judge admitted the receipt in evidence; and instructed the jury that B. had no authority to convey away the defendant's property, or to deprive him of any rights in it. Held, that the defendant had no ground of exception. Fennessy v. Spnfford, 144 Mass. 22 (1887). 28. If A. delivers to B. certain bonds, for two distinct considerations to be performed by B., the fir.st for the benefit of a third per- son, whereby an advantage enures to A., and the second for A.'s own benefit, and B. per- forms the first but not the second, A. cannot, without returning to B. the benefit received from him, rescind the contract, and main- tain an action of tort in the nature of trover against B. for the conversion of the bonds, by 997 TRUST, I. 998 proof that B., when he entered into the con- tract, fraudulently intended not to perforin the second consideration, although the benefit received by A. from the performance of the first consideration is of such a nature that it cannot be returned. Snow v. Alley, 144 Mass. .546 (1887). 29. If an attachment of mortgaged personal property in the possession of the mortgagor, under which the property is sold on mesne process, is made in a fictitious action brought by A. in the name of B. against both the mortgagor and the mortgagee. A., B., and the mortgagor being in collusion to deprive the mortgagee of the property and to defeat his mortgage, it is no defence to an action by the mortgagee against A. for the conversion of the property, that the mortgagee has a rem- edy by an action for malicious prosecution. Crocker Y. Atwood, 144 Mass. 588 (1887). 30. If mortgaged personal property in the possession of the mortgagor is attached, with his consent and by his procurement, and the person causing the attachment holds the prop- erty as keeper under the attachment, in denial of the mortgagee's right, and the attachment is invalid, there is evidence of the mortga- gee's right of possession of the property, and of the conversion of it by the person causing the attachment. Crocker v. Atwood, 144 Mass. 588 (1887). TRUST; TRUSTEE; USES. I. Creation and Nature op Trust Estates; Incidents and Termina- tion OF. (a) Generally. (6) Resulting Trusts. (c) What is notice of a Trust. (d) Voluntary Settlements; Alien- ation of Income; Equitable Attachments. (e) Termination of Trusts. n. Construction of Express Trusts. III. Appointment and Resignation op Trustee. rv. Bonds of Trustees ; Rights and Li- abilities op Sureties. V. Rights, Duties, and Liabilities of Trustee. VI. Rights and Remedies op the Cestui que Trust. VII. Compensation and Accounts op Trustee. As to Capital and Income, Charity, Pp.rpetuity, Power, see those titles re- spectively. See also Devise. For other cases involving questions of trusts, see Assignment, I. (a), pi. 1; Col- lateral Security; Conflict op Laws, pl- 3; Corporation, IV.; Deed, V. pi. 4; Execution, III. pl. 3 ; Gift, pl. 2 ; Limi- tation, L pl. 8; in. pl. 4; Post-Opficb; Savings Bane ; Voluntary Association. I. Creation and Nature of Trust Es- tates; Incidents and Termination of. (a) Generally. 1. Where property is left by will in trust, and the trust on its face is too indefinite to be carried out, it cannot be established against the heirs or nextof kin of the testator by evi- dence of oral communications made to the trustee by the testator, whether before or after the execution of the will, although the property is devised to the trustee to enable him " to distribute the same in such manner as in his discretion shall appear best calculated to carry out wishes which I have expressed to him or may express to him." Olliffe v. Wells, 130 Mass. 221 (1881). 2. If personal property is transferred by a conveyance absolute in form, it may be shown to have been in trust by the subsequent decla- rations of the transferor assented to and acted upon by the transferee. Chace v. Chan in, 130 Mass. 128 (1881). 4. A trust in personal property may be shown by parol evidence. Chace v. Chapin, 130 Mass. 128 (1881). 5. A bill in equity, against the adminis- trator and heirs of W., alleged that C, an uncle of the plaintiff, who, at the time of his death, was supporting the plaintiff, then an infant and an orphan, in the family of W., his brother-in-law, and who died without making a will, intended to make the plaintiff " the heir at law of one full half of all his propei-ty and es- tate; " that on his death-bed he gave direction that one half the same should be the property of the plaintiff ; that the plaintiff's name should be changed; that W. should be appointed his guardian; that, after the settlement of C.'s estate, C.'s father, who was sole heir at law, "being desirous of carrying into full effect the intentions and wishes of his deceased son in relation to the plaintiff," at the instance and suggestion of F., who was the owner of one undivided half of certain land in another State, the title to the whole standing in the name of C. alone, and also at the instance of W., who had been appointed guardian of the plaintiff, executed and delivered a deed of this land to P., to C.'s administrator, and to W., as copartners; that neither C.'s administrator nor W. paid any consideration for this convey- ance, and that it was not the intention of the parties that W. should take any title there- in in his own right, but only in his repre- sentative capacity; that he "never claimed any personal interest in said land, but only as the guardian of the plaintiff, and as holding under said deed in trust for the use and bene- fit of the plaintiff. Held, on derauri-er, that the bill did not set forth any ground upon which to raise an express, implied, resulting or constructive trust for the benefit of the plaintiff ; and that the bill could not be main- tained. Campbell v. Brown, 129 Mass. 23 (1880). 6. An executor who had given a bond to pay debts and legacies, under a will by which an annuity was bequeathed to A. for life, paid 999 TEUST, I. 1000 the annuity during his own life, and by his will directed his executor to dispose of so much of his real estate as might be necessary to meet his liabilities under the will of his testator, and so to invest the proceeds that the income might be sufficient to meet those lia- bilities. B., his executor, sold real estate of his testator, assuming to act under this power, and took mortgages from the grantees, which he subsequently sold. He paid the annuity to A. for several years, until he became bank- rupt, previously to which a surety on his bond as executor died, leaving a will, and his estate was fully settled before any default in paying the legacy to A. Held, in an action for the benefit oJE A., under'Gen. Sts. o. 101, §§ 31, 32, against the devisees under the will of the surety, that the first-named executor could properly create a trust in his will for the payment of the annuity to A. ; that, in dis- chai'ging the trust, B. was not acting as the executor of an executor, within Gen. Sts. c. 98, § 9 ; that it might be inferred that B. created a trust fund; and that the action could h6 maintained. Brooks v. Rice, 131 Mass. 408 (1881). 7. If the real consideration of a deed of land is an oral promise of the grantee to hold the title and manage the property in trust for the benefit of the grantor and her children, and the grantee has performed, and is ready and willing to perform, his promise, the grantor cannot maintain an action against him to re- cover the consideration stated in the deed; and oral evidence is admissible to show what the real consideration was. Twomey v. Crow- ley, 137 Mass. 184 (1884). 8. If a husband executes to a third person a mortgage of land, " in trust " for his wife, securing a promissory note, signed by the hus- band, payable to such person, " at my decease, in trust for my wife," the consideration of the mortgage being the transfer to the husband of real and personal property inherited by the wife from her father, the note and mortgage are personal property, held on a simple trust for her, and, upon the death of the wife, in- testate, before her husband, who is appointed the administrator of her estate, he is entitled to the note and mortgage to be disposed of for the payment of her debts, or under the statute of distributions ; and, on a bill in equity by the husband against the trustee and the chil- dren of the wife, to remove a cloud upon the plaintiff's title to the land, the trustee should assign all his interest in the same to him. Bartlett v. Bartlett, 137 Mass. 156 (1884). 9. A testator by his will ga;ve a small leg- acy to each of his three eldest children; a cer- tain sum to his next elder child, in trust for her support and education ; the residue of his property in trust for the maintenance and education of his two youngest children ; and, by another instrument, executed the same day, provided as follows: " And it is my will further, in case I receive anything from my interest in the N. Bank, in litigation with the United States, that my three oldest children shall receive one third part of said sum re- ceived in addition to the sum before men- tioned bequeathed to them and to be divided equally among them, and the balance of said sum received to be divided equally among my three youngest children in addition to the sum before named bequeathed to them . Held, that the bequest in the second instrument to the three youngest children of the testator was to them absolutely, and not in trust for their maintenance and education. Brown v. Brown, 137 Mass. 539 (1884). 10. If A., the trustee of a fund, misappro- priates and mingles it with his own propertv, and with it pays off mortgages on his own real estate, and buys with it, in whole or in part, other real estate, and, becoming insol- vent, conveys all his property to B., who knows that the trust fund has been so misapplied, upon the consideration that B. shall pay A.'s debts, and the whole of it is not expended in the payment of such debts, a bill in equity to have B. declared a trustee of the original fund cannot be maintained, if the bill does not specify any property which it identifies with the trust innd. Howard v. Fay, 138 Mass. 104 (1884). 11. After a bequest in trust to A. and B., to be by them expended in securing the pas- sage of laws granting women the right to vote, had been decreed void as not being a charity, a daughter of the testator bequeathed the residue of her estate (being about the amount she had received from her father's estate) to A. and B. " as their absolute property; " and added: " I request said A. and B. to use said fund thus given to further what is called the Woman's Eights Cause. But neither of them is under any legal responsibility to any one or any court to do so." Held, that the bequest was valid, and did not create a trust. Bacon V. Ransom, 139 Mass. 117 (1885). 12. A testator had three daughters. A., B., and C, the last of whom was insane. His property consisted of certain personal prop- erty, and of an undivided half of a farm, the other half of which was owned by A. His will was as follows: "To my daughter A. I give my half of tlie farm, together with pro- duce, stock, and farming implements thereon, and the rest and residue of all my property, whether real or personal, of whatever name or nature, for the support of my daughter C, except the following legacies." Then fol- lowed a legacy of five dollars to B., and one of the same amount to C. Held, that A. took an estate in fee in the farm, etc., and that she took the residue in trust for C, and might be required by the Probate Court to give a bond with sureties. Buffinton v. Maxam, 140 Mass. 557 (1886). 13. If a quitclaim deed of land of an as- signee in bankruptcy recites a considei'ation, and contains an habendum to the grantee to the grantee's use, and the usual covenants, in the absence of fraud on the part of the gran- tee, no trust results to the grantor, although he received no consideration in fact. Gove v. Learoyd, 140 Mass. 524 (1886). 14. If the executor of the will of a member of a beneficiary association, formed under the St. of 1877, 0. 204, (Pub. Sts. c. 115, § 8,) 1001 TRUST, I. 1002 receives from the association the amount due on a benefit certificate issued to the member, he takes it in trust to pay it over to the person entitled tliereto. American Legion of Honor V. Pen-y, 140 Mass. 580 (1888). 15. A testator by his will gave to his two younger sons all his estate, real or personal, in fee simple. The will then proceeded as follows: " In making this disposition of my property, I assume that my eldest son will un- derstand and appreciate my reasons for giving whatever property I may have at my decease to his younger brothers; and that they on their part will not fail to do for him and his family all that in the circumstances the truest fraternal regard may require them to do." Held, that the will did not create a trust for the benefit of the testator's eldest sou and his family; and that the devisees took an estate in fee simple. Rose v. Porter, 141 Mass. 309 (1886). 16. If the executor of the will of a member of a beneficiary association, formed under the St. of 1874, c. 375, has received from the as- sociation the amount due on the death of the member, and the persons who by the by-laws may be designated as beneficiaries are dead, or have relinquished their rights, and the will cannot operate as a designation of the bene- ficiaries, the executor takes the money in trust to distribute it in accordance with the rules established by the statute of distributions, and not as assets of the estate. Daniels v. Pratt, 143 Mass. 216 (1887). 17. A. and B. executed a written agree- ment, by the terms of which certain securities were to be placed in the hands of C. for col- lection ; if a certain sum with interest, which was less than the amount of certain promis- sory notes held by A. and indorsed by B., was paid by B. to A. on or before a day named, A. was to assign to B. all his rights in the securities, and C. was to hold the securities for B., and all sums collected on them were to belong to B. ; if B, did not pay the sum stated to A. on or before the day named, C. was to apply the sums collected on the securities to the payment of the amount due upon the notes, and account to B. for the sui'plus. A. also covenanted that, if said sum was paid to him on or before the "day named, he would not sue B. upon the notes. B. did not pay the sum named in the agreement within the time therein specified. Afterwards C. collected a certain sum upon the securities held by him, and paid to A. a sum which was less than the amount due upon the notes. Held, on a bill in equity by A. against B. and C. to enforce the trust created by the agreement, that time was of the essence of the contract ; that oral evidence was inadmissible to show any inten- tion or understanding of the parties other than that expressed in the contract; and that A. had not lost his right to have the money collected upon the securities applied in pay- ment of the notes, by not demanding payment of B. or bringing suit against him upon the notes. AmesY. Brooks, 143 Mass. 344 (1887). 18. An insurance company issued a policy of insurance on the life of A., payable to him as soon as the premiums, together with such other sums as he should pay, should amount to the sum insured. In case of his prior death the company agreed with A. to pay the sum insured to his mother. The policy further provided, that, after the payment of two full premiums, it should not lapse. The inten- tion of A. was to make the policy for the benefit of his mother, who furnished him with money to pay part of the first premium. The mother never had possession of this policy. A. subsequently married, and, without his mother's assent, surrendered the policy to the company, and took out a new one for the same amount payable to his wife. The policy contained the statement that it was a continu- ation of the first policy. A. died tefore his payments amounted to the sum insured. Held, that the first policy was a settlement in trust for the benefit of the mother, which A. could not revoke ; and that the mother was entitled to the proceeds. Held, also, that the company was not liable on the second policy. Pingrey V. National Ins. Co., 144 Mass. 374 (1887). 19. A parcel of land, on which there was a house, was conveyed to A., " in trust for B., wife of C, and her heirs and assigns forever;" and the consideration named in the deed was stated to be paid to the grantor " by A. in trust for B." C. was insane at the time the deed was made, and died a year afterwards; and subsequently B. married D. B. thereupon made a will, by which she gave the estate in question to D. B. occupied the premises from the time of the conveyance to her death. Held, on a bill in equity by D., after B.'s death, to compel a conveyance to him of the estate by A., that the legal effect of the deed to A. was to create a trust for B. during cov- erture, and a legal estate afterwards, which was not affected by her second marriage ; that it was not competent for A. to show by parol that his money was used by B., together with her own, for the purchase of the estate, upon the agreement that she should occupy it for life without any authority to sell or give it away, and that, upon her death, it should belong to A. ; and that D. was entitled to a decree. Moore v. Stinson, 144 Mass. 594 (1887). (b) Resulting Trusts. 1. A testator devised the residue of his estate to A. " to distribute the same in such manner as in his discretion shall appear best calculated to carry out wishes which I have expressed to him or may express to him," and appointed A. his executor. Held, that the devisee took no beneficial interest in the de- vise; that the trust on its face was too indefi- nite to be carried out; that it could not be established against the heirs or next of kin of the testator by evidence of oral communica- tions made to A. by the testator, whether before or after the execution of the will, showing that the trust was for charitable pur- poses ; but that the heirs or next of kin took by way of resulting trust. Olliffe v. Wells, 130 Mass. 221 (1881). Compare also Nichols V. AUen, 130 Mass. 211 (1881). 1003 TRUST, I. 1004 2. Shares of stock in several corporations ■were transferred to A. to hold in trust for B., a ■woman, the certificates being in the name of A. personally. A. used the shares as his own, and sold all of them, and, for the pur- pose of protecting the trust, subsequently pur- chased other shares to the same amount in the same corporations. While he held the latter shares, B. asked him for the names of her stocks, and A. gave her a list. After a libel for divorce was filed against A., he sold some of the shares, and a few days after purchased the same number in the same corporation. Subsequently, A. transferred all the shares to C, with the undisclosed intent of protecting the trust. Held, on- a bill in equity by the ■wife of A., against A., B., and C, to reach and apply these shares in satisfaction of an execution for alimony which she had obtained against A., that these facts would warrant a finding that the shares in the hands of C. were impressed with a trust in favor of B. ; and that the bill could not be main- tained. Perkins v. Perkins, 134 Mass. 441 (1883). 3. A relief association issued a certificate to a member, in which it agreed to pay, on the death of the member, a certain sum to a third person, "in trust "for a daughter of the member. The third person collected the sura of the association. Held, that the guar- dian of the daughter could maintain an action, in the name of his ward, against such third person, for money had and received. Derome V. Vose, 140 Mass. 575 (1886). (c) What is Notice of a Trust. 1. Land was conveyed to a trustee, ■with power to sell, provided it should be for the benefit of the cestui que trust, and to reinvest the proceeds. The trustee made a deed, pur- porting to convey the land, in consideration of one dollar and other valuable considera- tions, his grantee mortgaged the land and reconveyed it to the trustee subject to the mortgage, and the mortgagee assigned the mortgage. Held, that the recital in the deed from the trustee was not sufficient notice to the assignee that the trustee was not acting in accordance with the power conferred upon him; and that the assignee was not bound to ascertain whether the trustee had reinvested the proceeds derived from the transaction. Norman v. Towne,lSO Mass. 52 (1880). 2. A. lent money held in trust by him for C, and took therefor a note and a mortgage of land, the note being payable to A. per- sonally, and the mortgage, which was re- corded, reciting that the consideration ■was paid by A., "trustee of C," and conveying the land to A., "trustee as aforesaid." A. afterwards borrowed money of B and as- signed the note and mortgage to him as se- curity therefor; and the assignment of the mortgage was recorded. The note was deliv- ered, but not indorsed, to B. ; and the words " trustee of C." were erased by A. before the mortgage was delivered to B. B. did not ex- amine the record, and his attention -was not attracted to the words " trustee as aforesaid," and he had no actual knowledge of their ex- istence, or of the fact that both note and mortgage represented trust funds held by A., but he knew that the money lent to A. was for his personal use. Held, that B. was charged with constructive notice of the trust under which A. held the note and mortgage. SmUh V. Burgess, 133 Mass. 511 (1882). 3. An indenture of trust, executed in this State, gave the trustee power to manage and improve the trust estate, and receive the in- come and profits from time to time, and also to sell or exchange the whole or any part of the trust estate, and the proceeds to invest in any other real or personal estate. The trus- tee applied to a bank here for an advance on cotton to be shipped from a distant State, proposing to forward to the bank drafts on the consignee of the cotton, and, further to protect the bank, offered to pledge personal securities belonging to the trust estate. He also falsely represented that the cotton was grown on plantations belonging to the trust. The bank, without further inquiry, accepted the proposal, and took the securities, know- ing that they formed part of the trust estate. Held, that the bank was liable for the value of the securities to the trust estate. Loring V. Brodie, 134 Mass. 453 (1883). 4. A bank cashier received from a trustee, as collateral security for a loan made to him personally, shares of stock and bonds known to the cashier to belong to the trust estate. Held, that the bank was chargeable with knowledge, and liable to the estate, and that it made no difference that renewal notes were made from time to time, the later ones with- out knowledge on the part of the succes- sor of the former cashier that the securities, which were constantly retained by the bank as collateral, were trust securities. Loring v. Brodie, 134 Mass. 453 (1883). 5. If a bank, in which a trustee has an ac- count, permits him to overdraw his account, and to pay the overdraft with the proceeds of trust property, which he had a right to sell, the bank is not responsible to the trust estate, if the money overdrawn is misused by the trustee, in the absence of evidence that the money was overdrawn under such circum- stances that the bank was fairly put upon inquii-y whether the money -was to be used for other purposes than those of the trust. Loring v. Brodie, 134 Mass. 453 (1883). (d) Voluntary Settlements ; Alienation of Income ; Equitable Attachments. 1. A person having the entire right to dis- pose of property may settle it in trust in favor of another, with the provision that the income shall not be alienated by the beneficiary by anticipation, or be subject to be taken by his creditors in advance of its payment to him, although there is no cesser or limitation of the estate in such an event. Broadway Bank v. Adams, 133 Mass. 170 (1882). 2. The interest of a person in a trust fund created for his benefit by the will of another, 1005 TRUST, I. 1006 which provides that the trustees may in their discretion pay or apply the income to the benefit of such person, or the members of his family, as the trustees may think proper, and that the income shall not be subject to his debts or assignable by him by way of antici- pation, cannot be reached by a creditor of such person by a bill in equity, under Gen. Sts. c. 113, § 2, cl. 11. Foster v. Foster, 133 Mass. 179 (1882). 3. A person cannot settle his property in trust to pay the income to himself for life, with a provision that it shall not be alienated by anticipation, so as to prevent his creditors from reaching the income by a bill in equity under Gen. Sts. c. 113, § 2, cl. 11; and this rule applies to a married woman settling her separate property after marriage, where she has by law the right to make contracts as if she were sole. Pacific Bank v. Windram, 133 Mass. 175 (1882). 4. If a person, having made a settlement in trust of his own property by which he is en- titled to the income, assigns his interest un- der the settlement as security for a debt, he cannot, as against the creditor, subsequently modify the terms of the trust, so as to make the payment of the income discretionary with the trustee. Pacific Bank v. Windram, 133 Mass. 175 (1882). 5. A testator gave the residue of his prop- erty to trustees, upon the trusts, first, to pay all the income to his widow during her life ; second, upon her death, to divide the trust estate into as many parts as there were chil- dren of him and his wife then living, and deceased leaving issue then living; and third, to hold one of said parts in trust for his son T. and to pay him semiannually the net in- come arising therefrom to a certain amount annually, and, in the discretion of the trustees, to further pay him the excess of the net annual income above the amount named, with a limita- tion over, upon the death of T., of the prin- cipal and accumulated income. Within a month after the wiU was proved, before the estate was settled and before any property was transferred to the trustees, and while the widow was living, a creditor of T. brought a bill in equity, under Gen. Sts. o. 113, § 2, cl. 11, to reach and apply to the payment of his claim the interest of T. in the trust fund. Held, that the bill could not be maintained. Rus- sell V. Milton, 133 Mass. 180 (1882). 6. 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 by anticipation, so as to prevent her creditors from reaching the income by a bill in equity under the Pub. Sts. c. 151, § 2, cl. 11 ; and such provision is not rendered valid by the Pub. Sts. c. 147, § 15. Jackson v. Von Zedlitz, 136 Mass. 342 (1884). 7. A testator by his will gave to trustees a certain sum, in trust to " pay to my daugh- ter the income thereof for her own sole and separate use, taking therefor her own re- ceipt;" devised the residue of his estate to his wife for her life, and directed that the balance remaining should be equally di- vided among his children and their heirs by right of representation, "my daughter's share to be held in trust as aforesaid; " that his sons, if of age, should receive their re- spective parts free from trust; otherwise, in trust until they should severally become of age, " it being my will that my daughter shall have also the income for life of an equal shai-e of my remaining estate after my wife's decease; " and that " all the property in ti'ust for my daughter may be disposed of by her at her decease by will or otherwise." Held, that, after the death of the testator's widow, both the principal and income of the daugh- ter's interest in the trust fund could be reached by her creditors by a bill in equity, under the Pub. Sts. 0. 151, § 2, cl. 11. Forbes v. Lothrop, 137 Mass. 523 (1884). 8. A married woman, for the purpose of preventing her husband from influencing her to dispose of her real estate, conveyed it to her brother as trustee, in trust to pay over the income to her during her life, and after her decease to pay over and account for the same to her children. The trustee was also given the power to sell the real estate, at his discretion, and, at any time after the death of the settler, to convey the same to her chil- dren, and, if not conveyed during the lifetime of the children, then to convey the same to their issue. In consideration of her execut- ing the ^eed, her brother lent her $600. No fraud or imposition was practised upon her, and the deed was carefully read to her. At the time of executing the deed, the contin- gency of her surviving her husband was not in her mind or in that of her advisers. The trustee sold the real estate and invested the proceeds. Held, that she was not, on her hus- band's death, entitled to have the trust set aside. Keyes v. Carleton, 141 Mass. 45 (1886). (e) Termination of Trusts. 1. A testator gave to his son G. the income of certain stocks during his life, " the princi- pal of said stocks to be held by my executors during his life, and at his decease I give the same to his child or children who shall sur- vive him, provided that, if my said son shall leave his wife surviving him, then his said wife shall be entitled to her support out of the same so long as she shall remain his widow." G. died after the testator, leaving a widow and infant child. Held, that the trust terminated by the death of G., and did not continue during the life of his widow. Hyde v. Wason, 131 Mass. 450 (1881). 2. G., the grantee in a deed of i-eal estate, executed a declaration of trust in relation to it, containing the following provisions: "To hold the same for the life of my daughters, C. and M., and of the survivor of them, for their sole nse and benefit, free from the con- trol or interference of any future husband, and to permit them to occupy and enjoy the same, free of rent, ... or at their discre- tion, with my approval, to let the same, and they or the survivor to receive the rents and profits thereof. . . . And at their written re- 1007 TRUST, n. 1008 quest, or that of the survivor, I promise to convey the same forthwith, in fee, to such person as they or she in writing direct, free and discharged from any and all trusts created by said deed, or by this declaration of trust; reserving however to myself the right to rein- vest the price received therefor in such other estate or property as they or the survivor of them may elect, I, or the then trustee, holding the same upon the same uses and trusts as are herein set forth. . . . And upon the decease of either said C. and M. leaving children, I am to hold one half of the trust estate, or, in case of sale as above provided, one half of the proceeds, in trust for her children. And upon the decease of the survivor prior to any such conveyance, I am to hold the estate in trust for their children, one half for the children of each, at my discretion, reserving the right after their decease to convey any estate exist- ing by virtue of this trust declaration in fee to any person, free and fully discharged from all trusts ■whatever. In the event of the de- cease of both my daughters leaving no children or grandchildren, this trust estate shall imme- diately cease, and all right therein revert to myself and my heirs, together with the estate hereby held. In the event of my decease pre- vious to that of my daughters herein named, the estate held by virtue of said deed, and of these presents, shall be immediately conveyed to some other suitable person by mjf executor or administrator, to be held for the same uses and trusts, or, at the election of piy said daughters, may be received by them toward their proportion of my estate, according to the laws of descent of the State of Massachusetts." C. and M. were the only children of G., who died intestate. C. died in the lifetime of G., intestate and unmarried. M. had one child living. Held, that M. could maintain a pe- tition in equity for the termination of the trust. Stone, petitioner, 138 Mass. 476 (1885). II. Construction of Express Trusts. See also Devise. 1. A testator gave to his wife real and per- sonal property for life, which on her death was to be equally divided between his son and his daughters, E. and M. ; and the will further provided as follows: " The part coming to E., I wish placed in trust, and at her decease, if she leaves no children, paid to her sister M." After the death of the widow, the executor settled his account in the Probate Court, showing a balance of personal property in his hands to be divided. Held, that the will created a valid trust; and that a trustee should be appointed for the personal prop- erty. Hooper v. Bradbury, 133 Mass. 303 (1882). 2. A testator devised the residue of his es- tate to his brother, in trust, to take from the income what he should deem necessary for the support and education of the testator's only son during his minority; to add the ex- cess of income over the sum expended to the principal of the fund; and, upon the son's coming of age, to pay over to him, for his own use, one half of the principal with accu- mulations, the other half to be held in trust to pay over the entire income to the son dur- ing his life, and, at his death leaving issue, to transfer the principal to such issue as he should by will direct, or, in default of such issue, to the son's children in equal shares; in case of the son's death before coming of age, or of his subsequent death leaving no issue, the property then held in trust to go to the trustee. The testator subsequently made a codicil to his ■will, which, after reciting that he was about to marry C., and making pro- vision for her, proceeded as follows: " In case I shall leave any child, or children, or post- humous child, born of C, then, and in such case, I give to each and every such child the sum of $250,000, the same to be held in trust by my brother until such child attains the age of twenty-one years, and if daughter or daugh- ters, the same is to be held in trust so long as they shall live, and the income only to be paid to them for their own sole and separate use, and if son or sons, one half, with the accumu- lated income, to be paid over to them, and the other half to be held in trust, on the same terms as the property I have left my son in my will." Held, that the reference to the will in the codicil governed the provisions for daughters as well as those relating to sons; that the trustee could devote such portion of the income as was needed for the support and education of a daughter during her minority; that the residue should be added to the prin- cipal; that, after a daughter came of age, she was not entitled to any portion of the accumu- lated income, or to have the trust terminated, but only to the income during life of the principal and accumulated income, with a power of disposal by will among her issue. Thayer v. Thayer, 129 Mass. 189 (1880). 3. A testator by his will appointed his brother P. executor, and gave him the residue of his estate, after providing for the payment of his debts, and making the following pro- vision : "I give and devise to my said execu- tor eight hundred dollars in money, to have and to hold the same to the use of my sister S., as follows, I desire, in case my sister S. should at any time need assistance or come to want, that my executor should expend such part of said eight hundred dollars as will make her comfortable and keep her so during her lifetime. The remainder, if any, of said eight hundred dollars, at the time of the decease of said S., I give and devise to my brother, said P., and his heirs." Held, that the testator intended to create a trust in the money given for the use of S., and to impose upon the ex- ecutor the duty of a trustee in regard to it; and that he also intended that the income of the fund should be paid to her during life, and so much of the principal as might be neces- sary for her comfortable support, if she should come to want, and that P.'s contention that he was entitled to the income, subject only to S.'s right thereto in case of her needing as- sistance or coming to want, could not be main- 1009 TRUST, II. 1010 tained. Colurn r. Anderson, 131 Mass. 513 (1881). 4. A testator gave the use and income of his estate to his wife, who was appointed ex- ecutrix of the will, during her life, and di- rected that, at her decease, all his estate should be converted into money, and invested in a certain manner for the benefit of his daughter, for her life, and on her decease be divided among her heirs. The real estate held bj' the testator at his death was sold by the executrix under the authority of a resolve of the Legisla- ture; and, as a substitute therefor, other real estate was purchased by her with the proceeds. The resolve provided that she should invest the proceeds in the manner prescribed in the will, for her use during her life, and on her decease for the uses and purposes set forth in the will. Upon making the purchase of the substituted estate, she executed a declaration that she held said estate in the said manner and for said uses and purposes. Held, that she took only a life estate in the land pur- chased by her; that it was held in the same manner and for the same purposes as the land for which it was substituted; and that the power of the administrator de bonis non to sell attached and applied to it. Putnam v. Story, 132 Mass. 205 (1882). 5. B. was indebted to A., which indebted- ness was secured in part by a mortgage of real estate. A. desired additional security, and B., who was unwilling to give such security di- rectly to A. , was willing to give a mortgage to C, to whom he was also indebted, and A. consented to this, provided C. would give to him a guaranty to the amount of $3,000. B. accordingly gave a mortgage to C. with a note for $12,000, "this note and mortgage being collateral for all loans to me by C. and all his liabilities on my account, including his guar- anty given to A. for what I owe him to date ; " and C. gave to A. his note for $3,000. A. did not see B. personally in this transaction, and B. did not know of the form in which C. as- sumed liability to A., although he knew of the existence of an outstanding guaranty from C. to A., which A. then held and afterwards surrendered. Held, on a bill in equity by A. against B. and C, that the mortgage was taken by C. upon the trust, first, to pay A. the indebtedness of B. to him not otherwise secured, to an amount not exceeding $3,000, second, to indemnify himself (C.) against loss on account of money lent to and liabilities in- cuiTed for B., and, third, to pay the balance, if any, to B. ; that the trust was not subordi- nate to C.'s right to be first secured for the whole amount of his claim against B., and was not to be held for the benefit of C. & A. pro rata; and that A. should apply upon B.'s debt to him the value of the security which he received from B., which was applicable to such debt, and conditional judgment should be entered for the balance. Parsons v. Clark, 132 Mass. 569 (1882). _ 6. Personal property was conveyed by an indenture, in trust to pay from the " net income " an annuity to the sister of the grantor " during her life; " to pay from the " net in- come " an annuity to a chaiitable corporation " during the continuance of this trust ; " " af- ter the payment of said sums," to invest the remainder of the income, " to be accounted for as an accumulation of the capital fund," until certain grandchildren of the grantor be- came of age, and then to pay thein certain specified sums ; after payment of these sums, then " after paying out of the income the said annuities," to divide the remaining in- come among the four children of the grantor, until a certain grandson should arrive at the age of twenty-five years, and one or more of the grantor's children should die; on said grandson arriving at the age of twenty-five years, "and after payment of all the said sums specifically directed to be paid," to pay "one fourth part of the remaining accumu- lated principal and income" on the death of any child to such person as he should by will appoint, or, in default of appointment, to his issue, " it being the intention of the grantor that each child shall have and receive its equal share of the income of the whole fund after the period " when the said grandson should have attained to the age of twenty-five years, and that, after his death, " his equal portion of the principal and any accumulated income" should be subject to his disposal by will, or should go to his issue. Held, that the trust in favor of the charitable corporation continued after the arrival of the grandson at the age of twenty-five years, and until the death of the sister of the grantor and the de- cease of all the grantor's children. Dexter v. Episcopal City Mission, 134 Mass. 394 (1883). 7. A testator bequeathed a sum of money in trust for the establishment of a school in a city, and appointed certain persons named and the " mayor of the city " a board of trustees to oaiTy into effect the provisions of the will. A codicil provided that the fund was to be paid over to the city for educational pni-poses, if two thirds of the trustees should be of opin- ion that they could not administer it as the testator intended. Held, that, .while the trus- tees held the fund, the city took no interest in it; and that the person who was the " mayor of the city" at the time of the testator's death, and not the mayor at the time the trustees were appointed, was entitled to be appointed a trustee. Dunbar v. Soule, 129 Mass. 284 (1880). 8. A testator left a fund in trust, and pro- vided that, after the payment of certain legacies and the termination of certain life estates, the trustee should pay over " all the residue of said trust fund, in equal portions, to my surviving nephews and nieces." Held, that only those nephews and nieces were en- titled to take who were living when the time for the final distribution came ; and that the representatives of a nephew who survived the testator, but died before the time for the final distribution, were not entitled to share there- in. Denny v. Kettell, 135 Mass. 138 (1883). 9. A. executed a trust deed in this Com- monwealth, where he was then domiciled, by which he conveyed certain personal property to a trustee, in trust to pay the income of a 1011 TRUST, II. 1012 portion to B. for life, and, on the death of B., to pay the principal of that portion to A., if then living, and, if not then living, to A.'s " heirs at law." The trust deed authorized the fund to be invested in real estate, and looked to a possible division in that form. A. died after B., and at the time of his death he was domiciled in another State. The fund always i-emained invested in personal prop- erty. Held, that the construction of the in- strument depended upon Massachusetts law, and that the term " heirs at law " meant heirs at law, and not next of kin, or persons enti- tled under the statute of distributions relating to personal estates. Merrill v. Preston, 135 Mass. 451 (1883). 10. A. executed a trust deed in this Com- monwealth, where he was then domiciled, by which he conveyed certain personal property, inherited from his father, to a trustee, in trust to pay the income of a portion to B., for life, and, on the death of B., to pay the principal of that portion to A., if then living, and, if not then living, to A.'s " heirs at law." A. died before B., leaving a mother, a widow, and certain uncles and aunts, descendants of his paternal grandfather. The trust fund re- mained invested in personal estate. A., at the time of his death, was domiciled in an- other State, by the law of which, if he had left real estate which descended on the part of his father, it would have parsed to his uncles and aunts, as descendants of his paternal grandfather ; if it had vested in the intestate by purchase, or in any other way than by de- scent on the part of the father or mother, it would have passed to his mother. Held, that, if the law of the State of his domicil at the time of his death governed, the mother was to be deemed his heir at law. Merrill y. Preston, 135 Mass. 451 (18S3). 11. A. conveyed land to B. in trust, first, to hold the land as security for all claims of B. against A., which then amounted to sev- eral thousand dollars, and were partly secured by two mortgages on the same land; and second, to convey the surplus to any person to whom A., his grantee, devisee, or appointee, might request. The next year after this con- veyance, A. and B. made their wills. A.'s will devised the land in question to B. and his wife for life, and, after their death, to C. and D. B.'s will provided concerning the land in question, "conveyed to me by A." by the deed referred to, that "the same go to such person or persons as he may by will or deed appoint, according to the terms of said deed; but if he makes no such appointment by deed or otherwise, my will is that he shall have the use, improvement, income, rents, and profits of the same during his natural life, including also the income from any money paid for the same, or any part thereof, for public improvements; and in case he makes no different disposition of the same, my will is that the same go after his decease to such of my nephews and nieces as may then be living." " And I hereby release said A. from all claim against him or said estate by virtue of any mortgage thereon, now held by me." A. died in the following year, and, during the same year, B., by a deed reciting the conveyance to him in trust and the will of A., and interpreting the latter as leaving " the remainder after the death of both of us, and after the payment of all claims I, or my estate, may have against him or his estate," to C. and l3., " in pursuance of the trust men- tioned in said deed of A. to me," conveyed to C. and D. " all the right, title, and interest in said estate to which they should become en- titled at my decease and the decease of my said wife, and after the payment of all claims which I or my estate may have against said A. or his estate." B. died six years later, having been in pos."ession of the land up to that time, taking the rents and profits, and having reduced his claim to several hundred dollars and cancelled the mortgage notes which he held. Held, on a bill in equity by the executor of A. against C. and D., to es- tablish a charge on the land to the extent of the amount due on B.'s claim, that B.'s will disposed of the interest in the land which he had under the trust deed from A. to him. Damon v. Bibber, 135 Mass. 458 (1883). 12. W. made an offer to an incorporated library association, that, if it would buy a suitable lot, grade the grounds, lay the foun-- dations, and provide for heating and lighting, he would at his own expense erect a library building. A subscription paper was circu- lated, by the terms of which the subscribers agreed to pay to the treasurer of the associa- tion the sum set against their names, " to be used for the purpose of purchasing land for a library building, putting in the foundations, providing for heating, lighting, etc., in order that said association may avail itself of the offer made by W. to erect a building for the use of the association." The directors of the association accepted W.'s offer, and bought two adjoining lots of land, and a library build- ing was erected by W. The sum subscribed was insufficient to pay for the land and to put in the foundations and provide for heating and lighting, and the association sold and conveyed to W., for a sum larger than it paid, and for its fair value, a portion of one of the lots, which the association did not need, and which it bought in order to secure the control of it, and prevent its future use for any ob- jectionable pui-pose; and the remaining land is a suitable site, and amply sufficient for the present and future needs of the association. Held, on an information in equity, by the Attorney General, at the relation of a sub- scriber to the fund, that there had been no violation of the trust on which the money was given to the association. Attorney General v. Greenfield Library Association, 135 Mass. 563 (1883). 13. A testator directed that the remainder of his property should be divided into three equal parts, "one part to be given to my sister A., in trust nevertheless as hereinafter provided." He then provided as follows: "I hereby give and bequeath to C, to have and to hold to him, his survivors, heirs, ex- ecutors, assigns, and administrators forever, 1013 TRUST, II. 1014 in trust, neverthelesa, to and for the ends, intents, and purposes following, to take care of the said property, and from time to time to sell and reinvest the same in real or per- sonal property, any of the trust funds in his bauds, and to pay over the whole of the net income and profits, as they accrue, to my sister A. . and all and any portion of the prin- cipal held in trust, whenever the said A. shall claim she requires the same for her comfort- able support, and it so seems in the discretion of the said trustee." Held, that the testa- tor's intention was to give one third of the residue of his estate to A., to be held in trust for her by the trustee named in the will. Wells V. Williams, 136 Mass. 33.3 (1884). 14. A testator, by a codicil to his will, re- voked a devise and bequest of one fifth of the residue of his estate to one of his sous, and devised said one fifth to trustees in trust " to manage, invest, and reinvest the same from time to time," as his sou might wish, and to pay the net income to his son, half-yearly, during his life. On the death of the son, the testator gave said one fifth part to his son's children, equally, in fee simple, the issue of any deceased child taking his or her parent's share by right of representation. If, at the time of the son's death, any child of his was under the age of twenty-one years, his "share of the trust fund " was to " continue to be held and managed " by said trustees, " and paid over to him or her only as he or she shall respectively come of age." If any child of his son should die under twenty-one, his share of the principal was to be paid over and con- veyed to his or her issue, if any; otherwise, to his or her brothers and sisters. If the son should leave no issue, or if all his children should die under the age of twenty-one years, and without leaving issue living at their de- cease, then at the death of the son without issue, or at the death of the last survivor of the children, "the principal" of the trust fund was to be paid or conveyed to the testa- tor's heirs at law. Held, that on the death of the testator's sou, his minor children took vested interests in the trust fund subject to be devested on their dying under twenty-one years of age, and that until their attaining that age, or dying before, they were entitled to a share of the net income of the fund. Wright V. White, 136 Mass. 470 (1884). 15. A testator by his will devised his real estate to trustees, in trust to apply the rents and income to the maintenance, support, and comfort of a son and three daughters in equal shares of one fourth each, and of their fam- ilies, if they should have any, the issue of a deceased son or daughter to take the parent's share of the income until the termination of the trust. Held, tl at the trustees might, in their discretion, pay to either child of the testator its full proportionate share of the income. Held, also , that the word ' ' family ' ' included the son and daughters, and their Respective children so long as the latter should live with their respective parents, or be of tender years and entitled to support. Held, also, that it would include the son's wife, if she continued to reside with, or be entitled to support from, him. Bradlee v. Andrews, 137 Mass. 50 (1884.) 16. A testator by his will provided as fol- lows: " All the residue of my estate, real and personal, whether acquired before or after the execution of this my will, and including here- in any property which I have a right to dis- pose of by my will or appointment by virtue of the provisions of the trust indenture, made by my late father with myself and others, ... I give and devise to " certain persons named, " to hold the same in strict trust, to collect the rents and incomes of said trust property, and, after deducting all necessary expenses and charges, to set aside one sixth part of the annual income to be added to the original trust fund. Then to pay over the remaining net income to my wife, in quarterly payments during her natural life or until her marriage, unless said net yearly income ex- ceed the sum of $20,000; and if said yearly income exceed the sum of $20,000, I desire my trustees of said fund, from the time of my decease until" a day named, "to place the amount over and above said $20,000 in good and safe investments, to become a part of the original trust fund. After the above-named date, I desire the yearly income from the above-named fund, over and above the said $20,000 which my wife will receive yearly, be divided equally between my daughter E. and my son'W." By the provisions of the inden- ture mentioned in the will, one fourth of the whole trust fund became payable, after the death of the testator, on the day before that named in the will, to such person or persons, and upon such terms and conditions, as the testator, who died before that day, might by his will appoint. If the testator had survived that day, the annual income of said fourth would have been payable to him. Such in- come, at the date of the will, exceeded, and, after deducting all necessary expenses and charges, and setting aside one sixth thereof, as directed in the will. On the day named ex- ceeded, and has ever since exceeded, $20,000. Held, that, after the day named in the will, the two accumulations therein provided for were to cease, and the words ''the yearly in- come from the above-named fund" which was to be divided between the testator's son and daughter meant the whole income of the whole fund. Dexter v. Appleion, 137 Mass. 323 (1884). 17. A testator by his will gave to his son F., in trust for his son C, certain real estate, the income to be used for the support and benefit of C. during his life ; and directed that, if it should become expedient to sell the estate, the proceeds should be reinvested for the benefit of C. ; and provided as follows: "If at my decease said property should ex- ceed in value one third of my estate, so much must be paid at once, or from time to time, to my sons E. and F. as shall make equal; should my son C. die without wife or children, the above-named property to be divided equally between my two sons or their heirs." He also gave certain real and personal property 1015 TRUST, II. 1016 to his sons E. and F. ; and further provided as follows: "If at my decease the property given to my sons K. and F. should exceed two thirds the value of that given my son C, then it is my will that they pay to their brother from time to time such sum as may make them equal, as it is my most earnest wish that each should share alike." C. died, leaving a wife, but no children, and, by his will, be- queathed all his estate to her. Held, that the testator intended to make an equal distribu- tion of his estate between his three sons, with the exception that C.'s share was to be held in trust for his benefit; and that C. could dis- 'pose of his share, by will or otherwise, in case of his leaving either wife or childi'en. Rhodes V. Rhodes, 137 Mass. 343 (1884). 18. Under a devise in a will of a fund in trust for " the maintenance and education of " the two minor children of the testator, nam- ing them, each child is entitled to share equally in the fund, without regard to their different needs. Jones v. Foote, 137 Mass. 543 (1884). 19. A testator by his will devised the resi- due of his estate to certain persons "in trust, for the use and benefit of my son C, to be applied and appropriated to the use and bene- fit of said C, at the disci-etion of my said trustees;" and authorized the trustees "to sell and pass deeds, to convey any and all of my real estate at their discretion." C. was the testator's only issue who survived him ; and he died, leaving children surviving him. The trustees gave no bond as trustees, and, during C.'s lifetime, conveyed a portion of the testator's land. Held, that the trustees took an estate in fee; that if their convey- ance was void on account of their not having given a bond, the legal title remained in them; and that C.'s children could not maintain a writ of entry to recover the land conveyed. Packard v. Marshall, 138 Mass. 301 (1885). 20. A testator by his will gave to trustees a certain sum, " to be paid to them out of my estate by my executors in one year after the probate of my will, in trust to pay over the income thereof from time to time to my son F., as in their judgment they may think right and best, during his life," with a remainder over in fee. Held, that the trustees were not entitled to receive from the executors the in- come of the trust fund until the expiration of one year after the probate of the will ; and that the Pub. Sts. c. 136, § 24, did not apply. Keith V. Copeland, 138 Mass. 303 (1885). 21. A testator, by the third article of his will, devised a parcel of land to his wife for life, and on her decease devised the same to his children then living. He also provided that, if his wife desired the land to be sold, he authorized his executors and trustees to sell the same, pay the proceeds to his trustees, to be invested by them, the income thereof to be paid to his wife for life, and the principal to be disposed of in accordance with the pro- visions regulating the distribution of the trust fund as provided in the next article of his will. By the fourth article, he bequeathed to trustees a sum of money, in trust to pay the net in- come to his wife for life, and on her death to distribute the principal among his children then living. The fifth article directed that all "moneys" bequeathed to each of his daughters should be managed by the trustees in separate trusts, and the income only paid to each daughter during her life, and on her death " the principal sum" should be "dis- tributed" in a way specified. A subsequent article directed that all " moneys " diiected to be given to his sons A. and T. should be managed by his trustees in separate trusts, they to receive only the income for life. By the ninth article, the residue of the testator's property, real, personal, and mixed, was de- vised to trustees, in trust to pay over the in- come to the children equally, and on a certain day, if the fund was then large enough to give each child a certain sum, to distribute the principal among the children. The eleventh article authorized the trustees to sell "any and all of my said trust property and estate, both real and personal," preserving to the wife the rights given by the third article of the will. The only land owned by the testator was that mentioned in the third article of the will, and this was not sold during the life- time of the testator's widow. Held, that the trust estate did not include this land, and that the gift to the children in fee contained in the third article of the will was not controlled by the subsequent articles. Parker v. lasigl, 138 Mass. 416 (1885). 22. An undivided third of a parcelof land was devised to a trustee to hold during the life of A., and on A.'s death to convey the same to the children of A. The will also em- powered the trustee to sell and convey, in fee simple or for any less estate, any part or the whole of the land. During the life of A., the trustee and the owners of the other undivided thirds joined in a lease of a portion of the land for a term of years, and agreed tliat, at the expiration of the term, the lease might be extended for a further term. At the expira- tion of the first term, A. was living, and the lessee demanded a renewal of the lease. Held, on a bill in equity for specific performance of the agreement to renew the lease, brought after the death of A^, that the trustee had no authority to bind the remaindermen; and that the court would not decree specific perform- ance as to them or as to the owner of the other interests in the land. Bergengren v. Aldrich, 139 Mass. 259 (1885). 23. Land was conveyed to a trustee in trust to allow the grantor to occupy the premises, and to receive the rents and profits, to join with the grantor in such conveyances as he should make, if the trustee deemed it expe- dient, and, if requested by the wife and all the children of the grantor then living, to convey to the grantor, or to such person as he should nominate, and lastly, on the death of the grantor, to convey the property to the heirs of the grantor. Held, that the children of the grantor took, during his life, vested equitable interests in the land, which they could convey, subject to the contingency of their dying before their father, or of his exer- 1017 TRUST, II. 1018 cising his right of appointment. Whipple v. FairchM, 139 Mass. 262 (1885). 24. A testator by his will gave to his son J. a certain sum "to be held in trust as here- after directed," and to the three children of J., naming them, each "one hundred dollars as hereafter directed;" appointed a certain person trustee to hold the sum of money given to J. so " that he shall have no right to de- mand any part of said legacy; " ordered the trustee to grant to J. such aid and assistance as his situation might require until the whole sum was expended, and, upon his decease, whatever remained was to be " equally di- vided among and between his children then living; " empowered the trustee, upon being satisfied that J. would take care of himself and his property, to pay over the whole sum to J., and thus discharge himself as trustee; and directed the trustee to take the full care of J.'s " children's legacy until they arrive to a legal age to receive it ; if they should need it sooner, then pay it over to or for them with the interest it has gained or received." By a codicil to his will, the testator gave to j.'s children, naming them, a certain parcel of real estate, " which J. now has as his home- stead;" provided that, if there were after- born children of J., they should receive equal shares with the others ; and further provided as follows: " This estate I give in trust the same as mentioned in my aforesaid will, and I hereby order and direct said trustee to not allow any account or claim against the said J. or his heirs' legacies previous to the date of this codicil, from my estate, but to see that the full amount of the legacy to him and his heirs be saved for them, the trustee to be fairly paid and to receive the same from said legacies, and to have the same duties and power in this codicil as given in said will." Held, that the use and occupation of said real estate was not given to J. ; and that the trus- tee was entitled to charge the trust estate held for J. with the rent of the real estate. Thomp- son V. Thompson, 140 Mass. 28 (188.5). 25. A testator dii-ected that the residue of his estate should remain as invested at his death for five years thereafter, the income to he divided into five shares: one for his wife, and in case of her death to be divided among "her immediate surviving children;" one for his son A., " and in case of his death without issue his said share shall be equally divided among his immediate surviving broth- ers and sisters; " one share for L., a daugh- ter, and in case of her death " her said share, together with all other income that may have accrued under the provisions of this will, shall be equally divided between her two children ; but should either or both of her said children decease without legal issue, then the said in- come bequeathed to such child or children shall be equally divided among my imme- diate surviving children; " and one share for each of his other children in the same terms as those of the gift to A. The will further provided, that, at the expiration of five years, the principal of the estate should be divided iBto five portions, one of which was to be held in trust, to pay the income to L. for her life, and at her death to be equally divided be- tween her two children, the same to be held in trust for them, the income to be paid them during their life ; " and should either or both of the said children decease without legal issue," the portion bequeathed to them to be divided " among my immediate surviving children." A sou died, without issue, before the testator, and his portion was, after the testator's death, divided among the shares of the other children. L. died after the expira- tion of the five years, leaving a husband and the two children mentioned in the will. One of these children died, intestate, after her mother, leaving a husband and a child. Held, that the portion which L.'s share received from the share bequeathed to the brother was to be added to her share and held in trust. Held, also, that L. took only an equitable es- tate for life, and that the gift over was not void for remoteness. Held, also, that, on the decease of L.'s daughter, the trust terminated as to her half of her mother's portion, and that it was to be treated as property of which she had died intestate. Goddard v. Whitney, 140 Mass. 92 (1885). 26. A testator by his will, after expressing the hope that one or both of his sons would carry on a manufacturing business formerly carried on by his father and subsequently carried on by himself, and reciting that his son T. was a minor, gave all his manufactur- ing property to A. and two others, in trust "to continue and carry on without interrup- tion, till my son T. shall arrive at the age of twenty-one years, the manufacturing business now carried on by me, in the same general manner said business is now carried on, tak- ing up and continuing said manufacturing business as the same shall be found at my decease." At the time of the testator's death, it had long been his habit to consign about half the goods of his manufacture to a firm of which A. was a member and in which he had a certain share of the profits, allowing the firm commissions and guaranty on sales; and the trustees continued to do the same after the testator's death. The testator was a member of this firm; and, by his will, his estate remained interested in it for some time after his death. Held, that a charge for com- missions and guaranty on sales might be al- lowed to said firm after the testator's death ; and that A. might be allowed his share of such charge. Turnhull v. Pomeroy, 140 Mass. 117 (1885). 27. Land was devised to trustees in trust to pay two thirds of the net income to a daughter of the testator during her life, and the other third thereof to another daughter during her life ; on the death of either daugh- ter, to pay " to the child or children " of such daughter the share "their mother" would be entitled to if living; in case of the death of a daughter leaving no "issue" then liv- ing, to pay the whole net income to the sur- viving daughter; and, at the decease of the surviving daughter, to convey the land with all accumulation of income then unexpended 1019 TRUST, II. 1G20 " to the issue or children of my said two daughters who may then be living, to be equally divided among all such issue or chil- dren, share and share alike, to them and their respective heirs and assigns in fee sim- ple." At the death of the last surviving daughter, there were living two children of hers, and three children of the other daugh- ter, two having previously died, leaving issue. Held, that the words " issue or children " did not mean "child or children," but included the children of the two daughters then living, and the issue of the deceased children by right of representation. Hall v. Hall, 140 Mass. 267 (1885). 28. A testator by his will gave to trustees, one of whom was his brother, certain property connected with a business in which he was engaged, in trust, to continue the business so long as they should deem it a good business investment, under the personal direction and management of the brother, and to divide the net income therefrom equally between the brother and the testator's wife, the sum paid to the widow to be for her support and the support of the testator's children, and, upon the discontinuance of the business, or if the brother should decline to enter upon the con- duct of the business, or in the event of his death, to sell the business and property, and divide the proceeds thereof, with all the ac- cumulations, equally between the testator's widow and children who might then be liv- ing, and the issue of any deceased child by right of representation. The will further pro- vided, that all sums of money which should become due upon the testator's death from a certain association should be held by the trus- tees in trust, after payment of certain debts and expenses, to invest the residue, and pay over the same to his wife and children, the trustees to exercise their judgment as -to the amounts and times of such payment ; that certain wharf property and privileges should be held by the trustees, in trust, to pay the income from the same to the testator's wife while she remained his widow; and gave the rest and residue of his estate to his wife and children, to be equally divided between them. Held, that the income from the business, di- rected by the will to be paid to the widow, was to be received by her on a trust, and that the children had a vested beneficial interest in it. Proctor v. Proctor, 141 Mass. 165 (1886). 29. A testator, who was described in his will as of S. , gave the income of certain prop- erty in trust for the support of his widow and children. One of the children, a daughter, who was about nineteen years old, entered into an engagement of marriage; and, some difficulty having arisen between her mother and her affianced husband, the relations of the daughter with her mother became inharmoni- ous, and she left her mother at B., where she was then boarding, and went to M. to live with an aunt, where she continued to live apart from the other members of the family. Held, that the daughter had not lost the berefit of the trust in her favor by her removal to M. Proctor v. Proctor, 141 Mass. 165 (1886). 30. A testator, leaving a son, three married daughters, and two unmarried daughters, by his will gave to his son one sixth of the resi- due of his personal estate; provided that, if one or more of his daughters should die be- fore the probate of the will, leaving no issue, the share given to his son should be propor- tionally increased; and "the remaining five sixths (or other portioi^, whatever the same may be) of such residue" he bequeathed to trustees in trust to pay the net income thereof, quarter-yearly or oftener, "to all my daugh- ters in equal shares, and the issue of any deceased daughter shall take the mother's share ; " and further provided that, ' ' after the decease of the survivor of my daughtSrsj" the trust fund should be distributed to those persons " who may then take the same as my heirs." After the testator's death and the probate of the will, one of his daughters died unmarried, leaving a will, by which she be- queathed the residue of her property to one of her sisters. Held, that no part of the prin- cipal of the trust fund was to be distributed until the death of the survivor of the testa- tor's daughters ; that the direction to pay the income of " the remaining five sixths (or other portion, whatever the same may be) " of the residue " to all my daughters in equal shares," was a gift to the daughters as a class; and that, in the event which had happened, the surviving daughters took the whole income. Dove V. Johnson, 141 Mass 287 (1886). 31. A testator by his will gave his home- stead and furniture to his wife for her life, and provided that, after her death, they should go with the residue of his estate; appointed his two eldest sons executors and trustees; and then provided as follows: "Of all my other property, either in money, stocks, bonds, goods, vessels, real estate, or whatever it may be, is to be reserved in trust for the heirs of my children, my wife and my children to have the income of it, as follows: as fast as the children become of age they will be entitled to their portion of the income, the income to be divided into as many parts as there are heirs, counting my wife as one, . . . and until my younger children become of age my wife to have their portion in consideration of paying all their expenses, but after being of age and receiving their portion, should they live with their mother, they must pay their portion of expenses, as their mother will not have sufficient for the whole expenses." He also gave to the trustees full power of invest- ment, and of sale and reinvestment, of both real and personal property. By a codicil to the will, the testator expressed the wish that, if there should be any vacancy among the number of executors and trustees named in the will, his wife should be appointed to fill it; that his younger son, on becoming of age, should also be appointed executor and trus- tee ; and that his executors and trustees might be exempt from giving sureties on their offi* cial bonds. The testator left a widow and four children, three sons and a daughter, the last being unmarried. One of the elder sons died intestate, leaving a widow and three mi- 1021 TRUST, II. 1022 nor children. The property in the hands of the trustees was all personal property. Held, that the distribution of the whole estate was not to be postponed until the death of the widow and of all of the testator's children ; and that the heirs of the deceased son of the testator, and not his widow, who was appointed admin- istratrix of his estate, were entitled to receive a distribution of that portion of the estate of which he had received the income. Fabens v. Fabens, 141 Mass. 395 (1886). 32. A testator by his will gave to his exec- ntors, for the use of his grandson, A. , $2000, the income of which was to be paid to him daring the life of his father, B., and then the principal was to be paid to A. or his heirs at law; and also gave to his executors $3000, to be invested in their names, and, at such times as they saw fit, they were to pay the interest thereof to B. ; provided that, if any creditor of B. should attempt to obtain any portion of this sum, the executors should not be held to owe the same or any portion thereof to B., but in such case all of the interest or income then due was to be paid to A., or, if he should not be living, the executors were to retain it for their own use; that, on B.'s death, the $3000 was to be paid to A. or his heirs; and that, if A. should die before B., the $2000 was to be held during B.'s life, and then " be paid in the same way to the heirs at law of said A." A. died before B., leaving no widow or issue. Held, that the trust fund did not vest in B. upon A.'s death; that B. was not one of the legal heirs of A. under the will; and that the fund should be distributed among those who were heirs at law of A. upon B.'s death. KnowUony. Sanderson, 141 Mass. 823 (1886). 33. A. by his will provided that the exec- utors thereof were to have full charge of his real estate, to lease the same and collect the rents, and, as soon as convenient and profita- ble, to sell and convey the same to any pur- chaser or purchasers, at public or private sale, without any order of court or license; with the power to " turn over and convey any part or parts of the same in discharge of any de- vises or bequests herein, ... all as in their judgment may appear best." Afterwards A. executed a deed, by which he conveyed his real estate to three trustees, to have and to hold to them, " and their heirs and assigns forever, in trust nevertheless for the said A., with full power and authority to said trustees to manage said real estate as they may deem best, to lease, let, to sell and convey the same, or any part thereof, at public or private sale, and to execute and deliver a deed or deeds of the same." Subsequently, the testator made a codicil to his will, bestowing an additional legacy, and in all other respects confirming his will. After A.'s death, the trustees named in the deed conveyed the real estate to the ex- ecutors of his will, " executors as aforesaid, their heirs, successors, and assigns, for their use and behoof forever." The executors made a contract with a person for the sale of a_ parcel of the real estate, and executed to him a quitclaim deed of the same, " by virtue of the power conferred upon us by said will. and of every other power us thereto ena- bling," which he refused to accept. Held, that the executors had power to convey a good title to the land, and could maintain a bill in equity for specific performance of the con- tract. Chesman v. Cummings, 142 Mass. 65 (1886). 34. A testator by his will provided that, at the death of his widow, two funds should be set apart in trust from the personal prop- erty; made a specific devise of a parcel of real estate ; gave the trustee power to sell the resi- due, "the proceeds of which is to pay the following legacies; " and then gave three leg- acies of equal sums. There was a deficiency of the proceeds of the real estate, and a smaller deficiency of the personal property. Held, that the three legacies were specific legacies, and were not entitled to contribution from the per- sonal property. Boston Safe Deposit If Trust Co. V. Plummer, 142 Mass. 257 (1886). 35. A testator by his will gave his property in trust for the benefit of his widow during her life; and, after her death, $25,000 of the personal property was to be set apart for the benefit of the testator's daughter during her life, and $12,000 for the benefit of the testa- tor's granddaughter during her life. At the death of the daughter, certain real estate, which was given to her for life, was given to a city in fee for charitable purposes, " and also $20,000 added to it." At the death of the granddaughter, $5000 of the $12,000 set apart for her use was given to the city for certain charitable purposes, and " the other seven thousand dollars of this twelve " was given to the same city for similar purposes. At the time of the widow's death the personal prop- erty amounted to about $32,000, and it was managed by the trustee as a single fund, and proportionate parts of the income were paid to the daughter and granddaughter. The daughter died, and the fund depreciated so that it was not sufficient to pay the $12,000 directed to be set apart for the granddaugh- ter's use and the legacy of $20,000 to the city. Held, that the legacy to the city was a general legacy; that the fund directed to be set apart for the daughter became general assets of the estate upon her decease ; and that the personal property existing at the daughter's death should be divided between the city and the granddaughter proportionally. Boston Safe Deposit If Trust Co. v. Plummer, 142 Mass. 257 (1886). 36. A testator by his will, after making sev- eral bequests, some of them payable when the legatees should arrive at a certain age, and providing that a grandson should, if he wished to have a college education, receive a certain sum annually, to be paid by the executors, while in college, gave one half of the income of the remainder of his property, both real and personal, to his son H. for the support of himself and family, at his decease to be dis- posed of to his legal heirs, as he should desire or direct by will or otherwise; and gave the income of the other half of the remainder, both real and personal, to his son J., for the support of himself and J.'s son W., the sup- 1023 TRUST, III., IV. 1024 port of the son to be as the father should direct. At the decease of J., one half of this half was to be disposed of to J.'s heirs, as he should direct, and the other half to W., if, at the death of J., the executors should judge W. to be a person of good habita and capable of managing the property; otherwise, to the legal heirs of the testator. The will also gave to the executors authority to sell real estate, and invest the proceeds; and appointed ex- ecutors, but did not appoint trustees. Held, on a bill in equity by the executors for in- structions, that the real and personal estate vested in the executors on the following trusts : 1st. To pay the legacies as they should become due, with interest only from the time when due. 2d. To pay one half of the income of the gen- eral fund, after payment of legacies as they should become due, to H., for life, in trust for the support of himself and family, and to pay the other half of the income to J. , for life, in trust for the support of himself and W., and, at the decea.se of H. and J. respectively, to dispose of the remainder in accordance with the will. Held, also, that H. had power to dispose of one half of the remainder of the estate, and not merely of the income, to take effect at his death. Phelps v. Phelps, 143 Mass. 570 (1887). 37. A testatrix by her will created a fund of f20,000 from the proceeds of certain insur- ance policies, with the addition of a sufficient amount "out of any moneys belonging to my estate " to make that sum, the income of which was to be paid to her mother for life. By the next article of the will, she gave, " out of my estate after my said mother's decease," to her two brothers the sum of $10,000 each. The same article likewise provided that " the remainder of said principal sum or insurance, and its increase thereon, over the sum of $20,000, as herein provided for as aforesaid, I hereby direct my said trustees to hold for the purpose of this my will;" and that at any time after the decease of her mother, on request of the brother.?, the sum of $10,000 should be paid to each absolutely; "and if requested by the survivor of my said brothers, the full sum of twenty thousand dollars ab- solutely, without condition, out of my estate, by said trustees, shall be paid." By a subse- quent clause " all the rest and residue " of the estate was left to trustees, in trust to apply the income to the education, maintenance, and support of the two daughters of the testa- trix during their minority; and, on being married or reaching twenty-one years of age, each daughter was to receive a certain sum out of the principal, and the income of the remainder for life. The will contained other articles, by which a watch was to be purchased by the executors " out of any funds belonging to my estate; " certain pecuniary legacies were to be paid "out of my estate;" and the ex- ecutors were to purchase certain books "with any funds in their hands belonging to my estate." During the life of the mother of the testatrix, some of the securities in which the $20,000 was invested were stolen, and there was an increase in the value of the other securities, but this was not enough to make good the loss by the theft. Held, on the death of the mother, that the legacies to the brothers were chargeable only to the $20,000 fund ; and that the brothers were entitled to the benefit in the increase of this fund. Stevens v. Fisher, 144 Mass. 114 (1887). III. Appointment and Resignation op Trustee. 1. A decree of this court appointing a trus- tee under a will made in a county other than that in which the will is admitted to probate, but in which part of the trust estate is situ- ated, is not void, and cannot be collaterally impeached ; and it is immaterial that the peti- tion for the appointment of the trustee pre- sented to and acted on by the court in one county was in form addressed to the court in another county. Bradstreet v. Butterfield, 129 Mass. 339 (1880). 2. By a marriage settlement made in an- other State, personal property was conveyed to two trustees, " and the survivor of them, his heirs, executors, administrators, and as- signs," on certain trusts during the joint lives of the husband and wife, with power of nomi- nation by them in case of a vacancy in the office of trustee, and, on the death of both the husband and wife, in trnst for the use of the issue of the marriage. Held, on the death of both trustees, and of the husband and wife leaving issue, that the Probate Court of a county in this Commonwealth, where the property then was, and where some of the issue lived, had jurisdiction to appoint a new trustee. Bassett v. Crafts, 129 Mass. 513 (1880). 3. A testator by his will authorized a per- son named to withdraw a sum of money from a savings bank, " said money to be disposed of as follows, part for my burial and funeral expenses and the residue for charitable pur- poses, masses, etc." Held, that the power and discretion conferred were not personal to the nominee; and that, he having died with- out qualifying as trustee, the court might ap- point a successor. Scliouler, petitioner, 134 • Mass. 426 (1883). 4. An appointment of a trustee under a will, by the Pi-obate Court, cannot be im- peached, for an irregularity in the proceedings not affecting the jurisdiction of that court, in a suit in equity, under the Gen. Sts. c. 101, §§ 31-34, against the devisees and legatees of the sureties on the trustee's bond, but is to be regarded as a valid appointment. McKim V. Doane, 137 Mass. 193 (1884). IV. Bonds of Trustees ; Eights and Liabilities op Sureties. 1. If a testator devises property to A. in trust, and also appoints A. his executor, the two offices are distinct; and if A. refuses or neglects to qualify as trustee and give bond, another person may be appointed trustee. Daggett y. White, 128 Maes. 398 (1880). 1025 TRUST, IV. 1026 2. A new trustee under a ■will, appointed by this court, under Gen. Sts. o. 100, § 9, is not required to give a bond, unless such bond is required of him by the will, or by the order of the court appointing him. Bradstreei v. Butterfield, 129 Mass. 339 (1880). 3. if a probate court, having jurisdiction of the subject matter, appoints a trustee, under Gen. Sts. c. 100, § 9, without notice to all the pai'ties interested, the sureties on the trustee's bond cannot, in an action against them on the bond, impeach the validity of the appoint- ment. Bassett v. Crafts, 129 Mass. 513 (1880). 4. If a surety on a bond is discharged from all further responsibility thereon by a decree of the Probate Court, after due notice to all parties interested, as required by St. 1843, c. 56, § 1, the validity of the decree is not affected by the fact that his co-surety had no actual knowledge of it ; nor by the fact that a new bond given recites that it is in addition to the first bond; and the discharge of the surety discharges also his co-sureties. Mc- Kim V. Demmon, 130 Mass. 404 (1881). 5. A surety on a bond, who has been dis- charged from " further responsibility " there- on by the judge of probate, is liable, under Gen. Sts. c. 101, § 18, for any breaches of the condition of the bond by the principal during the entire time he was his surety. McKim v. Bartlett, 129 Mass. 226 (1880); McKim v. Blake, 132 Mass. 343 (1882). 6. A bond was executed to the judge of probate by S., trustee under a will, as princi- pal, and G. as surety. The trustee was re- moved; H. was appointed trustee in his place, and demanded of S. the trust funds, which S. refused to deliver. G. died, and S. and an- other person were appointed administrators of his estate, and gave a joint bond. More than two years afterwards, but before the es- tate was fully administered, H. brought a petition, under the Gen. Sts. c. 97, § 8, to the Probate Court, to order the administrators to retain in their hands sufficient funds to satisfy his claim, as trustee, against G.'s estate. The petition was granted, but the amount in the hands of the administrators was insufficient to satisfy H.'s claim. H. then brought an action, under the Gen. Sts. o. 97, § 10, in the name of the judge of probate, upon the trus- tee's bond, against the administrators of the estate of G. Held, that the refusal of the former trustee to deliver the trust fund to H. was a breach of his bond as trustee, for which a claim arose against the estate of G. as surety; that, on payment by the administra- tors of the amount in their hands, an obliga- tion would arise on the part of S. to indemnify the estate, which would be assets in the hands of both administrators ; that judgment should be entered for the penal sum of the bond, and execution awarded for the amount of the trust fund due from the former trustee to H. Bas- sett V. Granger, 136 Mass. 174 (1883). 7. A right of action against a trustee under a will, and the sureties on his bond, arises upon a demand by his successor for the trust fund and his refusal to pay over the same; and a suit in equity, under the Gen. Sts. SUPPLEMENT. — 33 c. 101, §§ 81-84, against the devisees and legatees of the sureties on the trustee's bond, brought more than a year after such demand and refusal, cannot be maintained. McKim V. Doane, 137 Mass. 195 (1884). 8. If a right of action against a trustee under a will, and the sureties on his bond, has been barred by the failure of his successor to sue within the time limited by the Gen. Sts. c. 101, § 32, such bar cannot be removed, and a new right of action created, by a new demand upon the first trustee for the trust fund, made by the second trustee after a re- appointment as such. McKim v. Doane, 137 Mass. 195 (1884). 9. In 1874, a trustee under a will gave a probate bond, with sureties. One surety died, and the other surety petitioned the Probate Court to be discharged, and due notice of the petition was given. The surety was discharged in 1877, the decree of discharge reciting that the trustee had filed "a new and sufficient bond," which had been examined and ap- proved. In fact, the second bond was approved on the same day that the discharge was grant- ed, but before the granting of the discharge; and the second bond was approved as "an additional bond." Held, that the second bond was to be treated as a " new bond," under the Gen. Sts. c. 101, §§ 15, 16; and that the sureties upon it were not discharged by the discharge of the surety upon the first bond. Brooks v. Whilmore, 139 Mass. 356 (1885). 10. In an action against a surety on a trus- tee's bond, the surety is chargeable with a sum received by the trustee as part of the in- come of the trust fund, which he has not paid over to the cestui que trust, but which he has applied to make up a deficiency in the in- vestment of capital. McKim v. Blake, 139 Mass. 593 (188.5). 11. If a trustee wrongfully sells securities belonging to the trust estate, and converts the proceeds to his own use, in an action against a surety on his bond, interest should be com- puted on the the amount converted from the day it is found to be due up to the day of is- suing the execution, without rests. McKim V. Btake, 139 Mass. 593 (1885). 12. A testator by his will, of which H. was appointed executor, gave the residue of his estate to H., " to be disposed of by him for such charitable purposes as he shall think proper." H. paid all the debts, legacies, and funeral expenses of the testator, but rendered no final account, as executor, to the Probate Court, and gave no bond as trustee. Held, that the residuary estate was given to H. in trust; and that the sureties on his bond as executor were liable for so much of such es- tate as was received by him, and not disposed of for " charitable purposes." White v. Dit- son, 140 Mass. 351 (1886). 13. A trustee under a will gave a probate bond, with A. and B. as sureties. • A. died, and D., who was a surety on another bond for the same principal as trustee of another estate, supposed that he was a co-surety with A. on the first-named bond, and petitioned the Pro- 1027 TRUST, V. 1028 bate Court to be discharged; and he was dis- charged accordingly. The trustee then gave another bond, in the same penal sum as the other, with B. and C. as sureties, which was approved by the judge of probate as " a new bond." The judge and the parties all acted under the same misapprehension as D. Held, that both bonds were valid; and that the sureties on each bond, after a breach thereof, were responsible in proportion to the several liabilities assumed by them. Brooks v. Whit- more, 142 Mass. 399 (1886). 14. A trustee under a will, which gave him the power to sell and dispose of the trust es- tate, and to reinvest the proceeds from time to time as he should deem advisable, filed an inventory in the Probate Court, in which cer- tain shares of stock in a corporation were valued at a certain sum. He then sold the shares for the purpose of converting them to his own use, and appropriated the proceeds. In his subsequent accounts he represented the .thares as in his possession. Held, in an ac- tion on his bond, that a surety thereon could not object to being charged with the market value of the shares at the date of the writ, with all dividends declared thereon to that time. McKim v. Hibbard, 142 Mass. 422 (1883). 15. A testator by his will gave certain property in trust for the benefit of two chil- dren; and provided that, during their minor- ity, interest was to be added to the principal, and that, after that period, each child was en- titled to the income of his portion, and, under certain circumstances, to the principal or a part thereof. When the elder child became of age, the trustee rendered an account of the property held by him for the benefit of both children, including accumulations to a certain amount; and, two years and a half afterwards, a settlement was made between the trustee and the elder child on the basis of this account, and the income of his proportionate share, with its proportionate accumulation, from the date of his majority to the date of the settle- ment, was paid to him, together with a cer- tain sum out of his share of the principal as accumulated. In fact the trustee had before the.'ie settlements wrongfully sold and appro- priated all of the trust property. Held, in an action against a surety on the trustee's bond, that the surety was chargeable with interest upon the elder child's share of the principal, with its share of added accumulation from the date of his majority to the date of the writ; and that a rest was properly made as of the former date. Held, also, that the surety was chargeable with interest on the younger child's similar share from the date of the elder child's majority; and that a rest should be made at the date of the younger child's majority, which v/as before the date of the writ. McKim v. Hibbard, 142 Mass. 422 (1886). 16. If a trustee misappropriates the trust property, and, in an action against a sui-ety on his bond, the surety is charged with the full amount of the trust property to a period later than the misappropriation, a sum equal to commissions which the trustee would have earned if the estate had been properly admin- istered should be deducted, and also the amount of taxes paid by the trustee, although they were paid to conceal his embezzlement. McKim V. Hibbard, 142 Mass. 422 (1886). 17. If a trustee sells securities belonging to the trust estate, and converts the proceeds to his own use, in an action against a surety on his bond interest should be computed on the amount converted from the day it is found to be due up to the day of issuing the execution, without making a rest at the date of the writ. McKim V. Hibbard, 142 Mass. 422 (1886). V. Rights, Duties, and Liabilities op Trustee. 1. B. purchased real and personal property in his own name, and held it in trust for the use and benefit of a firm, in which he and A. were the partners. An agreement was after- wards entered into between B. and C. by which B. became bound to convey the prop- erty to C. within a given time, upon payment of a certain sum and the performance of cer- tain other stipulations. 'This agreement was entered into by the request and for the benefit of A., and was taken and held by him. It contained no reference to the partnership or to the termination of the trust upon which B. then held the land. The money was not paid within the time allowed, and by its express terms the agreement thereby became " void and null." Held, that the execution of the agreement was not a bar to the maintenance of a bill in equity by A. against B. to have the property decreed to be held by B. in trust for the firm. Sherburne v. Morse, 132 Mass. 469 (1882). 2. If a person, who is a legatee and also cestui que trust under a will, fraudulently re- ceives from the executor of, and trustee un- der, the will, property which forms part of the principal of the trust fund, and converts it to his own use, a person subsequently ap- pointed trustee may retain, out of the income afterwards coming to the cestui que trust, the amount so converted. Crocker v. Dillon, 133 Mass. 91 (1882). 3. A trustee under a will, who, in good faith and in the exercise of a sound discre- tion, decides to retain an investment made by the testator in stock of a railroad corporation, when it is gradually falling in value in the market, is not responsible for the deprecia^ tion, although the stock becomes worthless. Bowkerv. Pierce, 130 Mass. 262 (1881). 4. A single trustee appointed by the Pro- bate Court, in the place of two trustees who have been removed, takes the title in the trust property, and the right to prosecute all necessary suits to recover the same. Ham- mond V. Granger, 128 Mass. 272 (1880). 5. A corporation, having large tracts of un- improved lands, for the purpose of borrow- ing money to discharge existing liens upon the lands and to make thrm available for sale, issued bonds, the interest on which was 1029 TRUST, V. 1030 payable semiannually, and, as security for the payment of principal and interest, con- veyed its lands to trustees on the following trusts: 1. to permit the corporation to remain in possession, improve and sell the lands un- til default should be made in the payment of the bonds, or the interest thereon; 2. to re- lease from time to time from the lien created by the conveyance such portions as, in the opinion of the trustees and of the president of the coi'poration, might be safely released with- out impairing the security for the payment of the bonds; 3. to receive and invest the moneys received from the proceeds of sales of said lands, and to pay therefrom interest due on the bonds and the expenses of the trust, and to apply the residue to the purchase and can- cellation of the bonds. The deed further pro- vided, that, in case default should be made in the payment of the bonds or of the interest thereof, and for six months thereafter, all the bonds should become payable ; that the trus- tees then might, and, upon the request of a certain number of the holders of the bonds, should, enter and take possession of the granted premises, and sliould thereafter, as attorneys of the corporation, so long as the default should continue, so manage and dis- pose of the same as to carry out the purposes of the trust, by sales of the lands from time to time. The corporation covenanted that, in case of default continuing for six months, it would on the request of the trustees deliver up possession of the granted premises, and make any further conveyance required. Held, that until entry by the trustees on default in the payment of the principal or interest of the bonds, they had no power to make a contract to sell any portion of the lands. Foster v. Boston, 133 Mass. 143 (1882). 6. A testator named R. executor of his will, and R. and D. trustees thereof, and gave full power to them or the survivors of them to deal with the trust estate. He also gave to the trustees specific suras to hold on separate tru-sts for the benefit of three persons named, and also created a residuary trust fund. R. was duly appointed executor, and subsequently sole trustee. D. was never appointed trustee, and filed in the Probate Court a resignation of his trust. On the same day that R. was appointed sole trustee, his first account, filed some time before, was allowed by the Probate Court, at the request of persons other than the three beneficiaries, and without further notice, in which he credited himself as execu- tor with moneys paid to the trustees of the beneficiaries equal in amount to the suras named in the will. At that time R. had funds iu his hands sufficient for this purpose. On the same day, three other accounts, signed by R. and D. as trustees, and containing items of income paid over to the three cestuis que trust at different times, were allowed by the Probate Court with the assent of the cestuis que trust. A second and final account of R. as executor was subsequently allowed by the Probate Court, showing his disbursements of all the assets in his hands as executor, when the first account was rendered, in which he credited himself with a certain sum paid to himself as trustee of the residuary trust fund. He also filed an account as trustee of the re- siduary trust fund; and was subsequently removed by the Probate Court from the offices of executor and trustee. Held, on a bill in equity, by his successor in the trusts, to deter- mine whether, as between the specific and the residuary cestuis que trust, R. as executor had paid to hiraself as trustee the moneys specifi- cally left in trust, that the accounts filed by hira warranted a finding that he had so paid them. Crocker v. Dillon, 133 Mass. 91 (1882). 7. A power in a trustee to sell trust prop- perty, and change investments, gives him no authority to pledge the property. Loring v. Brodie, 134 Mass. 453 (1883). 8. If trustees under a will convey trust property to themselves through a third per- son, for an inadequate consideration, though without fraud, and subsequently render an account to the Probate Court, in which the conveyance to the third person is stated, and a decree is made, these proceedings do not operate as a bar to a bill in equity for a re- conveyance of the property, brought by a new trustee and the beneficiaries against per- sons to whom the former trustees conveyed the property, the new trustee and some of the ben- eficiaries not having been parties to the pro- bate proceedings. Morse v. Hill, 136 Mass. 60 (1883). 9. On a bill in equity by a trustee under a will and some of the cestuis que trust, to set aside a conveyance of a fractional part of a leasehold estate by former trustees under the will to themselves, it appeared that all of the cestuis que trust were not agreed in desiring to avoid the conveyance, and that their inter- ests could not be separated; that the trustees had a general power to convey the trust prop- erty, and intended no actual fraud by the sale to themselves; that there were future inter- ests in the trust, which were not represented, except by the trustee; that considerable time had elapsed since the conveyance; and that persons other than the trustees had acquired interests in the property for valuable consid- erations, and without fraud. Held, that the court would allow the defendants to retain the property, on paying the difference be- tween the amount for which the trustees con- veyed it to themselves and its then fair value, and interest, with annual rests. Morse v. Hill, 136 Mass. 60 (1883). 10. An obligee of a bond to convey a mine in a distant Territory, who had agreed to sell certain interests in it, became insolvent, and notified the intended purchasers of the fact, and they entered into an agreement by which one of their number was to have the " sole, absolute, and untraramelled control " of the interests, and was authorized to distribute thera frora time to time as he might deem best, provided that he reserved to the parties " some interest in the mine." The trustee agreed to use his best skill and judgment to bring to a successful result the recovery of the mine, or the money of the parties. Money was advanced to the trustee, and he purchased 1081 TRUST, V. 1032 undivided parts of the mine, and made sales of parts. Within three months from the date of the agreement, one of the parties thereto requested the trustee to convey to him his interest, and to render an account. The trustee refused. Held, that a bill in equity, brought ■within six months from the date of the agreement, could not be main- tained. Nichols v. Rogers, 139 Mass. 146 (1885). 11. If a trustee under a will, on demanding of a corporation a transfer of shares of stock standing in the name of his testator upon the books of the corporation, presents to the cor- poration certified copies of the will and of his appointment as trustee as evidence of his authority to demand a transfer, the corpora- tion has no right to require that the copies shall remain in its custody. Bird v. Chicago, Iowa, §■ Nebraska Railroad, 137 Mass. 428 (1884). 12. A will made several specific devises and bequests ; in the fourth clause it gave to trus- tees a certain sum to be held upon certain trusts therein defined ; in the tenth clause it gave to the trustees the residue of the estate remaining " after paying all previous bequests and legacies " upon certain trusts therein named, different from those created by the fourth clause ; and appointed one of the trus- tees executor. The executor rendered a first and second account, both of which were ap- proved, seven years after the will was proved, in which he credited himself with having paid to the trustees under the fourth clause the trust fund therein named. The trustees ren- dered an account four years later, which was allowed, and in which they charged them- selves with said trust fund, and with yearly interest thereon for nine years, and credited themselves with the payment of such interest to the cestvis que trust. The second account of the executor, which was not a final ac- count, showed a certain balance due him from the estate; and he has continued to act as executor since. An action upon the bond given to the judge of probate by the trustees was referred to an assessor, to ascertain the amount for which execution should issue. The assessor found that the trustees had mis- appropriated a large part of the trust fund and of the income thereof, which, with inter- est, amounted to a certain sum, for which execution ought to issue, and that the sum which by the executor's second account ap- peared to be due him from the estate should not be deducted. Held, that execution should issue for the amount found due by the asses- sor, with interest to the date of the execution. Bassett v. Granger, 140 Mass. 183 (1885). 13. If a will is so ambiguous that a trustee appointed thereunder is unwilling to take the responsibility of action under it, his proper course is to seek the instructions of this court by a suit in equity, and not to render a ficti- tious account in the Probate Court for the purpose of settling the rights of the parties interested. Lincoln v. Aldrich, 141 Mass. 342 (1886). 14. The purchase by a trustee, with the trust funds, in good faith, of a certificate of deposit, payable at a future day, issued by a national bank, the stock of which was selling at par, and occasionally at a small premium, and which was issuing large numbers of such certificates to individuals, savings banks, and trust companies, is not such an imprudent in- vestment of the trust funds as will make the trustee liable for a loss arising from the failure of the bank before the day stipulated for the payment of the certificate. Hunt, appellant, 141 Mass. 515 (1886). 1 5. Where the court determines, on a bill in equity, the right of certain trustees, undei- a mortp;age executed by a railroad corporation, to vote at a meeting for the election of direc- tors on certificates of indebtedness of the cor- poration, held by them for a sinking fund, and thus incidentally determines the validity of votes cast by them, it will not go further and determine who is elected, if it becomes necessary to determine the validity of other votes cast at the same election. New England Life Ins. Co.v. Phillips, 141 Mass. 535(1886). 16. A trustee under a will filed an inven- tory in the Probate Court, in which certain shares of stock in a corporation were valued at a certain sum. Subsequently he wrong- fully sold the shares and converted the pro- ceeds to his own use. In an action against a surety on his bond, it appeared thatthe market value of the shares on the day the same were transferred on the books of the corporation was less than the valuation in the inventory; but it did not appear what the market value was on the day they were sold, or what amount the trustee received for them. Held, that the trustee could not object to being charged with the valuation in the inventory. McKim v. Hibbard, 142 Mass. 422 (1886). 17. Land was conveyed to A., B., and C. " in trust for the uses of a Sabbath school and for the diffusion of Christian principles as taught and practised by Christian Evan- gelical denominations, with power to erect, repair, and renew from time to time all build- ings necessary to carry out the object and pur- poses of the trust; " and " with full power to sell or exchange said land and improvements, whenever, in the judgment of said trustees or of their successors, another location would better subserve the objects and purposes of said trusts." A building was erected on the land by the trustees, and was occupied and used for the uses and purposes named in the trust deed. Afterwards A. and B., without the consent and against the wishes of C. , con- veyed the premises to a religious coi-poration, discharged from all trusts named in the trust deed. On the same day, without C.'s knowl- edge or consent, A. and B. received from the corporation a deed purporting to convey to A., B., and C. as trustees, to be held upon the trusts stated in the original trust deed, a cer- tain other parcel of land, recited to be given as an exchange for the premises conveyed to the corporation. Four days later, without C.'s knowledge or consent, A. and B. recon- veyed to the corporation the parcel of land which the corporation had previously conveyed 1033 TRUST, VI., VII. 1084 to the three trustees. This deed was without cousideration other than the conditions stated therein, which bound the corporation to erect upon the premises a building suitable for Sab- bath school work, and, in substance, to per- form all the trusts imposed upon the trustees by the original trust deed; and provided " that, when these premises or some other which may be substituted for them shall cease to be used in accordance with the foregoing conditions, the same shall revert to the gran- tors or their successors, to be held under the original trust." Held, that C. could maintain a bill in equity against A. and B. and the cor- poration to have the several conveyances de- clared void, and to compel a reconveyance of the land named therein. Morville v. Fowle, 144 Mass. 109 (18S7). VI. Rights and Remedies of the Cestui QUE Trust. 1. If a person, acting as trustee for others, makes a contract in his own name, his cestuis que trust are not liable thereon, although the fact that he is a trustee is not known to the person with whom he makes the contract at the time it is made. Everett v. Drew, 129 Mass. 150 (1880). 2. A cestui que trust cannot maintain an action at law. against a trustee while the trust is still open. Davis v. Coburn, 128 Mass. 377 (1880). 3. A corporation conveyed all its property to trustees to secure the payment of certain bonds issued by it and payable to bearer. One of the bonds, duly executed, and payable in five years, with interest coupons attached, was lost before issue. Receivers of the cor- poration were subsequently appointed by this court, with power to collect the assets of the corporation, pay the debts, and divide the balance among the stockholders. The trus- tees, at the I'equest of the receivers, released to the receivers the property held in trust, and accepted from the receivers a sum of money as security for the lost bond, until such time as the lost bond and coupons should be paid, or the rights of any holder thereof be extin- guished. The receivers paid all the debts of the corporation and the bonds which had been issued. Nine years after these bonds were paid, the lost bond not having been pre- sented for payment, the receivers, being ready to close their trust, brought a bill in equity against the trustees to compel a trans- fer of the sura of money deposited as security for the lost bond, but did not offer to give security which might avail the bondholder if one should appear. The court ordered notice by publication to any one having an interest iu the bond, which order was complied with, and no such person appeared. Held, that the bill could not be maintained. Sohier v. Lamb, 134 Mass. 275 (1883). 4. Land was conveyed to a person in trust, with full power to manage it and sell ofE the gravel, loam, and wood from time to time at his discretion; to sell and convey the land itself or any part thereof, and for such sums as might seem to him judicious; and to divide the net proceeds of all sales among the equi- table owners of the land according to their re- spective interests, or at his discretion to expend them in improving the property. He executed declarations of trust, which declared that he was to hold the shares of the equitable owners respectively, or the proceeds thereof, to be managed as set forth in the trusts contained in the deed to him. No specific time was stated for the termination of the trust. Held, that one equitable owner was not entitled to call for a conveyance before the purposes of the trust were accomplished, without showing maladministration on the part of the trustee. SeamansY. Gihbs, 132 Mass. 289 (1882). 5. If a trustee conveys trust property to himself, the conveyance may be avoided by a part only of the cestuis que trust. Morse v. Hill, 136 Mass. 60 (1883). 6. One of several cestuis que trust, a citizen of another State, filed a bill in equity in this court to have the trustee removed and a new trustee appointed. The defendant, a citizen of this State, filed a petition under the U. S. St. of March 8, 1875, § 2, for the removal of the cause to a Circuit Court of the United States. Held, that the court would not deter- mine the questions arising on the petition until opportunity was given to make the other cestuis que trust parties. Baxter v. Proctor, 139 Mass. 151 (1885). VII. Compensation and Accounts op Trustee. 1. An agreement made by a trustee with his cestui que trust, in regard to the amount of compensation he shall receive for his care of the trust property, is not invalid, if the cestui que trust is sui juris and competent to act, and no fraud is practised or undue advantage taken; and such agreement should be taken into consideration by the Probate Court in determining the amount the trustee is entitled to charge. Bowker v. Pierce, 130 Mass. 262 (1881). 2. Property was devised to trustees in trust to invest and hold it and pay over the net in- come to the testator's widow during her life, and on her decease to pay over the principal to the children of the testator, the issue of any deceased child to take by right of repre- sentation. While the widow was living, the trustees allowed a son of the testator to appro- priate to his own use a portion of the income. This son died before the widow. Held, that, in settling their account in the Probate Court with the remaindermen , the trustees could not credit themselves with the sum thus appropri- ated by the son, as part of the estate coming to his children. Dodd v. Winship, 133 Mass. 3.59 (1882). 8. The Probate Court, in passing upon the allowance of the account of a trustee under a will, may determine whether the trustee has accounted to the parties entitled to the income of the trust fund for the whole of the income ; 1035 TRUSTEE PROCESS, I., II. 1036 and the question of the correctness of such de- termination is open in this court on appeal. New England Trust Co. v. Eaton, 140 Mass. 532 (1886). 4. At the hearing of an appeal by a trustee from a decree of the Probate Court, disallow- ing an item in his account showing an invest- ment of the trust funds in a certificate of deposit issued by a national bank, and pay- able at a future day, evidence is admissible that, at and about the time of such invest- ment, the bank issued large numbers of such certificates to individuals, savings banks, and trust companies; and the evidence of bank examiners, that it is not usual for national banks to issue such certificates, is also admis- sible. Hunt, appellant, 141 Mass. 515 (1886). 5. Under the Pub. Sts. c. 144, § 9, if a trustee under a will, through inadvertence and without any fault on his part, errs in stating in an account filed by him that a cer- tain sum paid to one of the cestuis que trust vpas a part of the income of the trust fund, instead of a part of the principal, the Probate Court, or, upon appeal, this court, may grant the trustee leave to reopen the account and correct the error, if it is material. Dodd v. Winship, 144 Mass. 461 (1887). TRUSTEE PROCESS; FOREIGN ATTACHMENT. I. Appearance and Answer of Trus- tee. II. Adverse Claimants; Prior Assign- ments. III. Who are Chargeable; and for WHAT. IV. Practice; Dissolution; Judgment, ETC. As to attachment of seamen's wages by trustee process, see Ship, pi. 3. As to costs, see Costs, II. pi. 6, 7. See also Assignment, I. (c), pi. 4; At- tachment; Commonwealth; Conflict of Laws, pi. 5; Corporation, X. pi. 1; Inter- est, pi 7. I. Appearance and Answer of Trustee. 1. In atrustee process, the trustee answered denying funds of the principal defendant. In answer to interrogatories, the trustee stated that he was a lessee of the principal defend- ant, and that an instalment of rent was due under the lease ; and further stated that, after adjustment of all mutual demands between the defendant and the trustee, a certain bal- ance was due the trustee from the defendant at the time of service of the writ. Held, that the plaintiff might file further interrogatories to the trustee for the purpose of ascertaining the state of the accounts between the parties ; and might ask him whether he had not assigned his claims against the principal defendant before service of the writ ; but could not ask whether he was not aware of this when he answered the preceding interrogatories. Nut- ter V. Framingham If Lowell Railroad, 131 Mass. 231 (1881). 2. If a savings bank, summoned as trustee in a trustee process, answers that it has funds on deposit in the defendant's name as trustee for a third person, and, in answering an inter- rogatory, states that it has been informed and believes that the fund belongs to the third person, the latter is not precluded from ap- pearing and disclaiming all right to the fund; and, upon a finding that he has no right or interest in the fund, the trustee is properly chargeable. Mortlaiid v. Little, 137 Mass. 339 (1884). 3. A creditor, who has an attachment in an action at law begun by a trustee process, can- not maintain a bill for discovery, in aid of such attachment, to obtain evidence to con- tradict the answers made by the trustee in the trustee process, even though the trustee is an administrator, and his answers are in respect to matters of which he has no personal knowl- edge. Emery v. Bidwell, 140 Mass. 271 (1885) . II. Adverse Claimants ; Prior Assign- ments. 1. A writ, in which A. alone was the de- fendant, was served upon a baiik as trustee, which answered that, at the time of service, it had standing on its books a certain sum to the credit of A. and Company. The writ was afterwards amended by joining B. as a defend- ant. The trustee still continued to hold the fund, and it was conceded that A. and B. composed the firm of A. and Company, and that the fund belonged to them. More than four months after the amendment, A. and B. filed a petition in bankruptcy and were ad- judged bankrupts, and C, their assignee, came in as a claimant of the fund in the hands of the trustee. Held, that the previous attach- ment became valid by the amendment, and the trustee was at once chargeable upon its original answer; and that the assignment in bankruptcy did not discharge the attachment. Sullivan v. Langley, 128 Mass. 235 (1880). 2. Money due for board furnished to sailors by a debtor, under an agreement with a third person, is " earnings," within the meaning of St. 1865, c. 43, § 2, which declares an unre- corded assignment of future earnings invalid against a trustee process. Jason v. Antone, 131 Mass. 534 (1881). 3. An assignment of all sums that may be- come due from the city to the assignor on or before a future day named, for services as jani- tor of a public school building, which position he has held for several years by virtue of an annual election by a committee on public prop- erty of the city, is ineffectual, as against the trustee process, to pass to the assignee sums earned before that day, but under a subse- quent appointment as janitor, there being no agreement for such subsequent appointment at the time of making the assignment; al- 1037 TRUSTEE PROCESS, III. 1038 though the terms of his subsequent appoint- iiient are similar to that which preceded it, and a custom prevails in that city by which he would have been entitled to keep his employ- ment until a successor was chosen. Eagan v. Luhy, 133 Mass. .M3 (1882). 4. Payment of an execution issued upon a judgment charging a trustee in foreign attach- ment is no bar to an action brought against him, by an assignee of the debt, in the name of the principal defendant, if the judgment charging him as trustee was obtained upon his wilful default, after he had notice of the as- signment. Wardle v. Briggs, 131 Mass. 518 (1881). 5. If in a trustee process the answer of the trustee admits that he owes the principal de- fendant a certain sum in payment for work and labor, a claimant of the funds in the hands of the trustee may show that the principal defendant acted in the matter merely as the claimant's agent. Sheehan v. Marston, 132 Mass. 161 (188-J). 6. An insurance company was summoned, by a special precept of attachment, as trustee of the principal defendant in an action against P. At the dates of the action and of the issu- ing of the trustee process, there was an out- standing policy of insurance issued by the trustee on the life of P. " for the benefit of the children of P.," and providing that, " if the said insured shall survive until " a certain day, which was before the service of the trus- tee process, " then the said sum insured shall be paid to him." After the action was brought, and before the service of the trus- tee process, P. went into insolvency, and C, his assignee in insolvency, appeared as claim- ant of the fund, his claim stating, if " the amoant due . . . was at the time of the issu- ing said special precept of attachment, by the terms of said policy, the property of said P. and liable to attachment as his estate, that the same belongs to him, the said C, as assignee aforesaid, and he therefore claims the same." Held, that the claim was sufficient. Sassetl v. Parsons, 140 Mass. 169 (1885). 7. B., aa administrator, acting under a li- cense of the Probate Court, sold real estate of his intestate, and the proceeds were paid to his counsel. An action was then brought against B. on a private debt, and his counsel was summoned as trustee. Subsequently B. was discharged from his office, and an admin- istrator de bonis non was appointed, who ap- peared as claimant of the fund. Held, that the trustee was entitled to be discharged ; and that the administrator de bonis non was enti- tled to have the proceeds awarded to him. Maruel v. Babbitt, 143 Mass. 226 (1887). III. Who are Chargeable; and for WHAT. 1. An insurance company, which, by the terms of a policy issued by it, has the right to rebuild instead of paying the amount of a loss insured against, is not chargeable in a trustee process as the trustee of the assured ; and the fact, that, after service of process upon it, it makes an arrangement with the assured and a creditor of his, by which the insurance com- pany pays the money to the creditor who erects a building on his own land, is immaterial. Godfrey v. Macomber, 128 Mass. 188 (1880). 2. A manufacturer employed workmen by the piece, and a tag was used to show the kind and value of the work done. From these tags each workman, on completing a piece of work, cut off a slip representing his work and tlie value thereof, and such slips were sometimes transferred by delivery by the workmen, and were paid on a certain day in each month by the manufacturer to any person presenting them. At the time of the service of a writ upon the manufacturer as trustee of a work- man, the workman had in his possession a number of these slips representing the labor performed by him, and worth a certain sum. Held, that on these facts the trustee was prop- erly charged. Fitzsimmons v. Carroll, 12S Mass. 40i (1880). 3. A town cannot be charged as trustee of an assessor of taxes, to whom no compensation has been voted, additional to that provided by Gen. Sts. c. 11, § 52, as amended by St. 1873, c. 156 ; the sum due by virtue of the statute is neither goods, effects, nor credits intrusted or deposited in the hands or possession of the town, within the meaning of Gen. Sts. c. 142, § 21. Waiker v. Cook, 129 Mass. 577 (1880). 4. If, by the contract between a street rail- way corporation and a person in its employ as conductor, he is to account for the tickets in- trusted to him to sell in the settlement for his wages, and, at the time of the service of the writ in a trustee process upon the corporation, he has in his hands money received from the sale of tickets and tickets of a certain value, which together exceed the wages then earned by him, there is nothing due him " absolutely and without any contingency," within Gen. Sts. c. 142, § 24, so that the corporation can be charged as trustee. Fellows v. Smith, 131 Mass. 363 (1881). 5. Although the wages of a seaman on a coasting voyage on the Atlantic coast are subject to attachment by the trustee process, (see White v. Dunn, 134 Mass. 271, 1883,) yet where, after service of the trustee process upon the owners, they are compelled to pay the sea- man his wages by virtue of the judgment of an admiralty court rendered with knowledge of the pendency of the trustee process, they will not be charged as trustees by the State court. Eddy v. O'Hara, 132 Mass 56 (1882). 6. In a trustee process, the trustee may set off, against the debt due the principal defend- ant, the amount of a non-negotiable chose in action against the latter, assigned by the trus- tee, before the service upon him, to a third person, who executes an instrument to the trustee, by which the assignee agrees to hold the claim for the joint benefit of the two par- ties, and not to dispose of the claim without the consent of the trustee, and that " any and all benefits and emoluments and advantages at any time directly or indirectly derived from said claim " shall enure to the joint benefit of 1039 TRUSTEE PROCESS, lY. 1040 the two parties. Nutter v. Framingham If Lowell Railroad, 132 Mass. 427 (1882). 7. A consignee of a cargo of coal cannot be held as trustee of the master of the vessel upon a writ served before the entire cargo has been delivered, although, by the terms of the bill of lading, the consignee is to pay freight at a certain rate per ton. Peterson v. Loring, 135 Mass. 397 (1883). 8. If an executor, summoned as the trustee of a devisee of his testator, after the service of the writ upon him, obtains leave of the Pro- bate Court to sell real estate for the payment of debts, the personal estate being insufficient for that purpose, and, after applying a portion of the proceeds of such sale to the payment of the debts, pays to such devisee a certain sum as his share of the surplus, he is not charge- able as trustee for that sum. Capen v. Dug- gan, 136 Mass. 501 (1884). 9. Under the Pub. Sts..c. 115, § 8, the sum payable upon the death of a member of a beneficiary association is not attachable by a creditor of the beneficiary by trustee pro- cess, while it remains in the hands of the as- sociation; and the creditor cannot maintain such process by proving that the person to whom the certificate was issued was not in fact a member of the corporation issuing it, or that its funds were not obtained in com- pliance with the law regulating such associa- tions. Saunders v. Robinson, 144 Mass. 306 (1887). IV. Practice; Dissolution; Judgment, ETC. 1. Upon a bond given under St. 1877, o. 97, by a person having an interest in money or credits attached by trustee process, to dis- solve such attachment, with condition to pay to the plaintiff the sum for which the trustee may be charged, if any, within thirty days after final judgment, no action can be main- tained, if the trustee has been discharged in the trustee process. Porter v. Giles, 129 Mass. 589 (1880). 2. If an attachment of mortgaged personal property in the possession of the mortgagor IS invalid, because the mortgagee, summoned as trustee under the Gen. Sts. o. 123, § 67, is a resident of another State, and has no usual place of business in this Commonwealth, it is immaterial, in an action by the mortgagor against the attaching officer, that another per- son, a resident of this Commonwealth, is also named in the writ as a trustee. Allen v. Wright, 136 Mass. 193 (1883). 3. At the trial of an action against an offi- cer for attaching the plaintiff's goods, the de- fendant justified under a writ, which described a person summoned as trustee as the " mort- gagee " of the plaintiff; and throughout the trial the defendant treated the property at- tached as mortgaged property. Held, that the defendant was not entitled to a ruling that there was no evidence of any mortgage on the plaintiff's goods, or that the mortgage, if any, was recorded. Allen v. Wright, 136 Mass. 193 (1883). 4. Upon a bond given under the St. of 1877, c. 97, by a person having an interest in. money or credits attached by trustee process, to dissolve such attachment with the condi- tion to pay to the plaintiff the sum for which the trustee may be charged, if any, within thirty days after final judgment, no action can be maintained if the trustee has been de- faulted, and, although adjudged a trustee, has not been charged for any sum. Cunning- ham V. Hogan, 136 Mass. 407 (1884). 5. Two actions brought by different plain- tiffs against the same defendant, and in which the same person was summoned as trustee, were pending in court. In the second action no service was made upon the defendant, and he did not appear. The first action was left off the docket for non-payment of the clerk's fees, and the trustee in that action was sub- sequently discharged as of a previous term, without notice to the plaintiff. The first action was subsequently restored to the docket, and the order discharging the trustee vacated. Held, that the pendency of the second action afforded no ground for not charging the trus- tee. Morlland v. Little, 137 Mass. 339 (1884). 6. A. made an assignment of his property, in trust for the benefit of his creditors, to B., which did not require the written assent of the creditors, and which provided that, if A. should be adjudged insolvent, B. should con- vey the property to the assignee in insolvency. C. , a creditor of A. , brought an action against him, in which B. was summoned as trustee; and afterwards C. assented verbally to the assignment, and presented his claim, which was allowed by B. at a sum agreed upon be- tween them. Subsequently, A. filed a petition in insolvency, and was adjudged an insolvent. Held, that, the assignment being valid, and assented to by C, B. was entitled to be dis- charged as trustee. Jones ■7. Tilton, 139 Mass. 418 (1885). 7. If the plaintiff in an action, for the pur- pose of giving the court jurisdiction, inserts in the writ the name of a fictitious trustee, described as having his usual place of business within the territorial jurisdiction of the court, a writ of error cannot be maintained to re- verse a judgment entered for the plaintiff in the action. Raymond v. Butterworth, 139 Mass. 471 (1885). 8. If a court has acquired jurisdiction of a case by the fact that the person summoned as trustee has his usual place of business within the territorial limits over which the court has jurisdiction, the subsequent discharge of the trustee does not oust the court of its jurisdic- tion over the remaining parties. Raymond v. Butterworth, 139 Mass. 471 (1885). 9. In a trustee process, where there are suc- cessive services of the writ upon the trustee, under the Pub. Sts. c. 183, § 8, and the action is on a demand for necessaries, the trustee is entitled, under § 80, to reserve from the amount due the defendant for personal labor the sum of ten dollars at the time of each ser- vice. Hall V. Hartwell, 142 Mass. 447 (1886). 10. A corporation was authorized by will to lend money from the income of a fund, to 1041 USAGE. 1042 the amount of $500, for a term not over five years, to each of certain apprentices, on his furnishing security for the repayment of the same, at the expiration of the term, with in- terest annually. The will further provided, that, if the interest were paid punctually, and in a certain other event, the obligation should be cancelled. The corporation deposited the sum of $500 in a savings bank in the name of an apprentice, but payable to the corporation, as collateral security for the promissory note of the apprentice, by which he promised to pay the corporation $500 in five years from date, or on demand, at the option of the trustees of the corporation, with interest an- nually. Three days before the five years from the date of the note expired, the trustees " voted to surrender " the note of the appi-en- tice. On the same day, and before anything further had been done, an action was brought against the apprentice by a third person, and the savings bank and the corporation were summoned as trustees. Held, that they were entitled to be discharged. Hayden v. Hayden, 142 Mass. 448 (1886). 11. In a trustee process, an agreed statement of facts, upon the question whethel' a claim- ant has a valid assignment of the funds in the hands of the trustee, need not be signed by the trustee. Segee v. Downes, 143 Mass. 240 (1887). 12. If the alleged mortgagee of personal property is summoned, under the Pub. Sts. c. 161, § 79, as trustee of the alleged mortga- gor in an action against the latter in which the property is attached, under the Pub. Sts. c. 161, §§ 69, 70, and the trustee's answer dis- claims all right as mortgagee, and shows that there is no mortgage and no debt, the dis- charge of the trustee by the plaintiff does not dissolve the attachment. Simmons v. Woods, 144 Mass. 385 (1887). TURNPIKE. See Bridge ; Wat. u. ULTRA VIRES. See Corporation, V. UNDUE INFLUENCE. See WiLi?. UNITED STATES COURTS. See Removal op Suits. URINAL. At the trial of a petition for the assessment of damages caused to the petitioner's estate by the construction of a public urinal, under St. 1876, c. 65, evidence is not admissible that offensive smells came from the building after it was used as a urinal, causing a nuisance and injuriously aflecting the petitioner's tenants. Badger v. Boslon, 130 Mass. 170 (1881). USAGE. See also Assignment, I. (c), pi. 13; In- 8DRANCB, V. pi. 8. 1. A usage of brokers that one, on receipt of an order to buy stocks on a margin, as- sumes the contract himself, instead of making it with a third person, is illegal, and evidence of such a usage is therefore inadmissible. Commonweallhv. Cooper, 130 Mass. 285 (1881). 2. The plaintiff sued for the price of a monument. The answer set up that the con- tract was for a monument and two tablets to be made and erected in the defendant's ceme- tery lot ; and that the plaintiff had not per- formed or offered to perform this contract. At the trial, the plaintiff offered evidence of a general custom among manufacturers of monuments, when a special contract is made for a monument and accompanying tablets to be set up in a cemetery lot, not to furnish the tablets until the purchaser has selected them and furnished the lettering for them. Held, that evidence of such a custom was in- admissible. Hedden v. Roberts, 134 Mass. 38 (1883). 3. If a usage exists for railroad corporations in a certain city to deliver to a consignee goods consigned to him by a bill of lading, not containing the words " or order," without requiring the production of the bill of lading, such a delivery is good as against a person to whom the consignee has previously delivered the bill of lading as security for an advance made by him tb the consignee. Forbes v. Bos- ton §■ Lowell Railroad, 133 Mass. 154 (1882). i. If goods in cases are sold by weight, without more specific agreement, evidence of a general usage is admissible to show that the weight is to be computed as previously ascer- tained at the time of packing, and marked on the qases, and not by the actual weight at the time of the sale ; and there is nothing incon- 1043 USAGE. 1044 sistent with this iu Gen. Sts. c. 51, § 17, pro- viding that sales of goods by the hundred- ■weight shall be construed to mean by the net weight, or one hundred pounds, and not by the gross weight, or one hundred and twelve pounds. Jones v. Hoey, 128 Mass. 585 (1880). 5. A usage may be established by the tes- timony of one witness : the fact that one witness only testifies thereto does not affect its competency or sufficiency as matter of law, however unsatisfactory it may be in point of fact. Jones v. Hoey, 128 Mass. 588 (1880). 6. B. agreed to make for A. a certain num- ber of castings of a new stove, in a specified time, the patterns for which were to be fur- nished by A. In an action by A. against B., for breach of this contract, one ground of de- fence was, that delays were occasioned by the failui-e of A to furnish patterns in time, be- cause of alterations made by him in the pat- terns. Held, that A. was entitled to put in evidence that there was a well-known univer- sal usage in the business to make changes in new patterns, arising from the fact that the first set of patterns, however good, would never produce castings that could be put to- gether without alteration. Florence Machine Co. V. Daggett, 135 Mass. 582 (1883). 7. In an action for the breach of a written contract, made by an agent of the defendant in another State, for the sale of goods to the plaintiff, evidence of a custom among dealers in such goods in this Commonwealth to accept or reject contracts made by their selling agents is inadmissible, in the absence of evidence that such a custoin was known in the place where the contract was made, or that any notice of it was given to the plaintiff. Byrne V. Massasoit Packing Co., 137 Mass. 313 (1884). 8. Upon the issue whether a sale of goods for " cash, five per cent off, thirty days," was conditional or absolute, the plaintiff testified that a sale for cash, by universal custom of his trade, was for payment in thiity days and delivery of the goods. The defendant was allowed to ask his witnesses the question, " Is there any custom which is general and universal among your trade iu selling a bill of goods, cash, five off, thirty, and goods deliv- ered, as to whether that is regarded as an ab- solute sale? " The answer was, that, by the universal custom of the trade, such a sale, if there was a delivery, was treated and regarded as an absolute sale. Held, that the plaintiff had no ground of exception. Sears v. Le- Better, 137 Mass. 374 (1884). 9. Knowledge by an insurer of a usage in a certain trade, extending the meaning of terms used in a policy of insurance upon articles designated by those terms, may be inferred from the universality and long existence of the usage. Mooney v. Howard Ins. Co., 138 Mass. 375 (1885). 10. In an action upon a policy of insurance against loss by fire on a junk-dealer's stock of " rags " and " old metals," evidence is ad- missible to show that, by a usage of the trade, the terms quoted -have acquired a brop,der signification than belongs to those words as commonly used. Mooney v. Howard Ins. Co., 138 Mass. 375 (1885). 11. Evidence of a usage to require a written application for marine insurance is incompe- tent for the purpose of meeting evidence on the part of the plaintiff tending to prove an oral contract of insurance. Emeri/ v. Boston Marine Ins. Co., 138 Mass. 398 (1885). 12. On the trial of an indictment for main- taining a common nuisance, by keeping a large number of swine in the neighborhood of certain dwellings and highways, evidence is inadmissible that it is a custom in this Commonwealth to tolerate the location of such establishments in populous localities. Commonwealth \. Perry, 139 Mass. 198 (1885). 13. In an action on a policy of marine in- surance on " advances," an expert testified that the word "advances" had not of itself a fixed and definite meaning in insurance; that it was sometimes used to describe an in- terest which could not be otherwise described; that, under the circumstances of the case, the word might apply to any pecuniary interest in anything put on board the vessel ; and that certain articles might properly be insured as "advances," but that "outfits" would be a better word to describe them; that, if insur- ing them himself, he should so describe them; and that "advances" commonly meant ad- vances to crew or advances on account of freight. Held, that this did not show that "outfits" had ever been insured as "ad- vances," or an existing usage to this effect. Burnham v. Boston Marine Ins. Co. , 139 Mass. 399 (1885). 14. At the trial of an indictment for effect- ing the sale and delivery of certain sheep by A., on the false pretences of the defendant that he had money in the bank upon which a check given by the defendant in payment of the price of the sheep was drawn by him, and that it was a good and available check for the amount thereof, there was evidence that A. agreed to sell the defendant the sheep for cash at a certain price per pound ; that they were then weighed, and were recorded by the weigher to the defendant in a book kept for that purpose; that, "about an hour or so" after the weighing, A. and the defendant met to settle, no bill having been before made out, nor the weights reckoned ; that the weights were then reckoned ; that A. demanded cash, but was induced to take a check for the amount by the representations of the defend- ant that he had the money in the bank, and that the check was good. There was contra- dictory evidence as to whether, by custom, the weighing of the sheep and the recording in the weigher's book constituted a delivery. On this point the jury were instructed, that, if the defendant proved the custom, yet if the sale to the defendant was a sale for cash, then it was a conditional sale, and vested no title in the defendant until delivery; that a mere constructive, or even a manual delivery, would not in such a case deprive the owner of his property; and that, to have such an effect, the delivery must be absolute, under sncli circumstances as to show a waiver of such 1045 VARIANCE, I. 1046 condition. Held, that the ruling was correct. Commonweallhv. JDevUn, 141 Mass. 423 (1886). 15. If an action for goods sold and delivered is referred to an auditor, ■whose report does not set out the evidence, but finds that charges for boxes, barrels, packing, and carting were on the bills of parcels sent with the goods, to ■which no objection was made at the time, and were in accordance with a custom of mer- chants, this court will not sustain an objec- tion that no recovery can be had for the same. Rogers v. Holden, 142 Mass. 196 (1886). 16. In an action by an insurance company against its agent for failure to cancel a policy, as directed, the evidence tended to show that the defendant took no steps to effect such can- cellation for five days after receiving direc- tions to do so, when the insured property was burned. The defendant offered to testify that " orders generally from the companies are to cancel the policy as soon as convenient, and that it is generally understood that an agent has from five to ten days in which to cancel a policy." Held, that this evidence was rightly excluded. Phoenix Ins. Co. v. Fnssell, 142 Mass. 513 (1886). 17. A., a manufacturer, had two mills, one of which was run under his own name, and the other under the name of B. He con- signed goods to C, a commission merchant, under an agreement that C. should make advances, should sell the goods, and, after deducting his advances, with interest, and his expenses, charges, and commissions, should credit A. with the net proceeds. A. kept the accounts of each will separate; and he con- signed and invoiced the goods to C, who had no knowledge that A. was tiie sole owner, in the name under which each mill was run. C. brought an action against A., to recover the balance of an account current with the mill run under the name of A., to which the an- swer was a general denial, and payment. Held, that, under the pleadings, A. could not show that there was a balance due him upon the account in the name of B., which should be allowed in this action, or that there were in C.'s hands goods from the mill run in the name of A., which were not included in the account sued on. Held, also, that the expense of printing a part of the goods was properly charged to A., it being shown that this was done under the usage of commission mer- chants in like cases. Talcott v. Smith, 142 Mass. 542 (1886). USE AND OCCUPATION. See Landlokd and Tenant, V. USURY. See Bank, pi. 8, 9. Y. VAGABOND. 1. An indictment on the Pub. Sts. c. 207, § 29, charging a woman with being an idle and disorderly person, and with neglecting all lawful business, and habitually misspending her time by frequenting houses of ill-fame, gaming-houses, and tippling-shops, is sup- ported by evidence that she was seen, at all times of the day and night, frequenting one or another of the class of places named, and was not known, during that time, to be engaged in any lawful occupation or work, although there is no specific evidence of her pecuniary resources, or of their insufficiency for her maintenance ; and the government is not bound to prove that she has refused opportunities to work which have been offered to her. Commonwealth v. Doherty, 137 Mass. 245 (1884). , 2. A complaint, on the Pub. Sts. c. 207, § 29, alleging that the defendant, on a day named, and on divers other days and times between that day and the day of making the complaint, at B., " was and is an idle and dis- orderly person, and on said days and times, at said B., has neglected all lawful business and habitually misspent her time by frequent- ing houses of ill-fame, gaming-houses, and tippling-shops," is sufficient, without further alleging that the defendant was under any necessity or duty of laboring or supporting herself, or foUovring any business or vocation. Commonwealth v. Brown, 141 Mass. 78 (1886). VARIANCE. I. In Civil Cases. II. In Ckiminal Cases. See also Abortion, pi. 4; Arson, pi. 2; Assumpsit, IV., XII. pi. 4; Bills and Notes, IX. pi. 3; Breaking and Entering, pi. 1; False Pretences; Forgery; Mis- nomer; Negligence, V. pi. 32; Perjury, pi. 2, 3; Way. I. In Civil Cases. 1. If a declaration alleges that the defend- ant agreed to bid for a parcel of land at a sale by auction, and buy one undivided half of the 1047 VARIANCE, II. 1048 land in behalf of, and as agent for, the plain- tiff, and the evidence is that the defendant agreed with the plaintiff to buy the land on their joint account, there is a variance. Par- sons V. Phelan, 134 Mass. 109 (1883). 2. A declaration alleged that the defendant agreed to pay the plaintiff a certain sum, in consideration that the plaintiff would assent to the election of a certain person as manager, in the defendant's place, of a corporation of which the plaintiff and defendant were both members. The evidence introduced at the trial showed that the consideration of the de- fendant's promise was that the plaintiff would vote for the person named as manager, and would also vote to increase the salaries of the officers of the corporation. Held, that there was a variance between the declaration and proof in regard to the consideration ; that the consideration should have been proved as alleged ; that an instruction that, if any con- sideration other than the one declared on was shown to have been actually paid and received, there was no variance which would prevent the plaintiff's recovery, but that the action might still be maintained, was erroneous; and that an amendment of the declaration after verdict was not permissible. Woodruff v. Wentworth, 133 Mass. 309 (1882). 3. The plaintiff sued for breach of an agree- ment to save him harmless from loss on a horse bought from A. Upon the trial, the plaintiff's affidavit, which claimed to set forth the contract, was introduced in evidence, and tended to show that the plaintiff bought the horse from the defendant, instead of from A. Held, a variance, which precluded recovery upon the contract sued on. Siration v. Hill, 134 Mass. 27 (1883). 4. In an action of tort, in which the writ set forth the first name and middle name of the plaintiff in full, the answer averred that the plaintiff had recovered judgment, which had been satisfied, against another person named. The defendant offered in evidence the record of an action in which judgment had been recovered against the person named, by a plaintiff described in the writ by the same first name and surname, and by the initial letter of the middle name. Held, that there was no material variance. Luce v. Dexter, 135 Mass. 23 (1883). 5. If a declaration on a policy of life ii»- surance refers to the policy without annexing a copy, and does not set up any contract in- consistent with the policy, an objection, taken when the policy is offered in evidence, that there is a variance between the policy and the declaration, cannot be maintained. Pierce v. Charter Oak Ins. Co., 138 Mass. 151 (1884). 6. If evidence is admitted which constitutes a variance, this court will not grant a new trial on account of such variance, if the case has been fully and fairly tried, but will per- mit the pleadings to be amended. Denham v. Bryant, 139 Mass. 110 (1885). _ 7. The declaration in an action alleged that a corporation, by its treasurer. P., made a promissory note for $5,000, payable to P., for the purpose of negotiating it for the bene- fit of the corporation; that P. indorsed the note, which was approved by the directors of the corporation; that the defendants, who were directors, " for said purposes and for said considerations," indorsed upon the note the following contract : " We hereby guarantee the payment of the within note ;" and that the note was then, before its maturity, sold and delivered to the plaintiff for a valuable consideration paid by him to P. At the trial, the plaintiff' testified that P. asked him to dis- count the note ; that he had the transaction with him as treasurer; that P. said the money was going to the corporation ; that he let P. have $1,000, and took his individual note for the amount, with the note for $5,000 and a bill of sale of a lot of railroad ties as collateral security, with a power of sale on default of payment within five days ; that he afterwards made two similar loans of $250 each, taking P.'s individual note for each with the same security ; that these loans were not paid when due ; and that payment was demanded. Held, that sufficient consideration had been shown to support the action on the guaranty; that there was no variance between the declaration and the proof; and that the testimony of the plaintiff was admissible for the purpose of identifying the plaintiff as the first holder for value and the promisee in the guaranty, and also to show the consideration. Jones v. Dow, 142 Mass. 130 (1886). 8. In an action on a bond for the convey- ance of a parcel of land, it appeared that one of the boundaries of the land as described in the bond was " southerly by F. Street; " and that the boundary as given in the deed ten- dered was " south by the north line of con- templated F. Street." It further appeared that, when the parties met, before the trial, the only objection made by the plaintiff to this description was to the word " contem- plated." At the trial, the plaintiff took the objection that the description in the deed did not convey the land to the centre of the street. On the question, whether the plain- tiff had waived this objection, the judge in- structed the jury that, if the plaintiff, when the parties met, was willing to take the deed notwithstanding this variance, and only in- sisted on the other variance, whether he knew there was such a variance or not was imma- terial. Held, that this ruling was erroneous. Holdsworth v. Tucker, 143 Mass. 369 (1887). II. In Criminal Cases. 1. At the trial of an indictment for threat- ening to accuse a person "of having commit- ted the crime of open and gross lewdness and lascivious behavior in the presence of "the defendant, with the intent of the defendant to extort money from him, there was evidence tending to show that the defendant had ac- cused him of an act of grossly indecent and irregular indulgence of lust, involving the ille- gal use of force on the defendant's person, and had threatened to give publicity to the pre- tended acts unless he was paid money; and 1049 VEEDICT. 1050 that, among other threats, the defendant used the following language: "Give me five hun- dred dollars, or I'll put this thing in court." " If you don't go and see ray lawyer before five o'clock, you will be arrested." Held, upon a bill of exceptions which did not set forth all the evidence, that there was no vari- ance between the allegations and the proof. Commonwealth v. Bacon, 135 Mass. 521 (1883). 2. If a complaint for placing and maintain- ing a screen, blind, shutter, and curtain upon premises licensed for the sale of intoxicating liquors, describes the premises as "the front room in the first story " of a certain building, the fact that the license produced in evidence covers the room alleged in the complaint and also the cellar under the same does not con- stitute a variance. Commonwealth v. Keefe, 140 Mass. 301 (1885). 3. At the trial of an indictment, on the Pub. Sts. c. 202, § 32, for attempting to poison a person by mingling a certain quantity of white arsenic with his food, if a chemical analysis of a portion of such food eaten by him showed that it contained white arsenic, the fact that the relative quantity of arsenic found therein did not correspond with that alleged in the indictment is immaterial. Com- monwealth V. Hohhs, 140 Mass. 443 (1886). 4. A person may be convicted upon a com- plaint, under the Pub. Sts. c. 99, § 10, as amended by the St. of 1883, c. 120, charging him with being present at an unlawful game, if the evidence at the trial shows that he was present at such a game, although it also tends to show that he was found playing the game. Commonwealth v. Hogarty, 141 Mass. 106 (1886). 5. A complaint, under the Pub. Sts. c. 57, § 5, alleging that the defendant sold one pint of adulterated milk, to wit, milk containing less than thirteen per cent of milk solids, is not supported by proof that he sold the milk as skimmed milk out of a tank marked as re- quired by § 7, although the milk was watered. Commonwealth v. ToUas, 141 Mass. 129 (1886). 6. A complaint, under the Pub. Sts. c. .57, § 5, alleging a sale of adulterated milk, to wit, milk containing less than thirteen per cent of milk solids, is supported by proof of a sale of milk, which , by the removal of a part of the cream, has been reduced in solids below thir- teen per cent, unless the milk was sold as skimmed milk, and out of a vessel, can, or package marked as required by § 7 ; and it is not necessary that a complaint charging such an offence should be drawn under § 6. Commonwealth v. Tobias, 141 Mass. 129 (1886). 7. If there is any evidence in support of an allegation in an indictment, there is no vari- ance between the allegation and the proof, although the evidence is contradictory; and, if the question of variance is submitted to the jury under proper instructions, the defendant has no ground of exception. Commonwealth V. Blood, 141 Mass. 571 (1886). 8. _ At the trial of an indictment for polyga- my, it appeared that the first name of the de- fendant's first wife was spelled " Celeste " in the indictment. The first wife testified that her first name was " Celestia." She pro- nounced " Celeste " in two syllables, with the accent on the last. There was no other evi- dence as to the pronunciation and sound of " Celeste." Held, that the question of mis- r.omer was rightly submitted to the jury. Commonwealth v. Warren, 143 Mass. 568 (1887). VELOCIPEDE. It cannot be ruled, as matter of law, that the use of a velocipede upon a sidewalk of a street is necessarily unlawful Purple v. In- habitants of Greenfield, 138 Mass. 1 (1884). VENDOR AND PURCHASER. See also Bills and Notes, VIII. pi. 7 ; Boundary, pi. 2 ; Deed; Fixtures; Per- sonal Property; Sale; Specific Per- formance; Tender. 1. A mortgage on the estate of a vendor of land will not justify the purchaser in refusing to accept the deed, and enable him to recover back the part of the purchase money already paid, if the vendor at the time is able and willing to have the mortgage discharged. Qalcm V. Collins, 128 Mass. 525 (1880). 2. The buyer of land at a sale by auction is not bound to pay the purchase money and ac- cept the deed tendered, and leave the seller to clear up defects in the title afterwards with the aid of the purchase money. Gormley v. Kyle, 137 Mass. 189 (1884). . 3. If the parties to a sale of land by auction meet on the day fixed for the performance of the contract, and the seller, without waiting for a formal request by the buyer, tenders a deed of the land, which is insufficient to convey a good title, and the buyer refuses to accept it upon that ground, no formal tender by the buyer of the balance of the purchase money, or offer to perform on his part, or i-equest to the seller for performance, is necessary, if the buyer is ready to perform, in order to entitle him to maintain an action against the seller for the portion of the purchase money paid at the sale. Gormley v. Kyle, 137 Mass. 189 (1880). VENUE. See Action, IV. VERDICT. See Jury; New Trial; Practice. As to verdict in land damage cases, see Railroad; Way. See also Assault, I. pi. 6; Conspiracy, pi. 7. 1. Upon the trial of an indictment charging the defendant in one count with the larceny 1051 VERDICT. 1052 of a chattel, and in another count with re- ceiving the same chattel, knowing it to have been stolen, a verdict of guilty on both counts is inconsistent in law, and no judgment can be rendered upon it; and the subsequent entry of a nolle prosequi of the second count does not cure the defect. Commonwealth v. Haskins, ll'8 Mass. 60 (1880). 2. In a case of felony, not capital, the jury may be authorized by the court, without ex- press assent of the defendant, after the case has been finally committed to them, to sepa- rate upon signing and sealing up a form of verdict, and to deliver their verdict orally upon the next coming in of the court. Com- monwealth V. Costello, 128 Mass. 88 (1880). 3. In a criminal case, not capital, the jury were instructed that, if they agreed after the adjournment of the court, the foreman should sign and seal up a statement of the verdict agreed upon, and return their verdict in the morning, The jury agreed upon their verdict after the adjournment of the court, and sepa- rated. After the jury had returned into court the next morning, and the written form of verdict had been handed by the foreman to the clerk and read, the jury were asked by the clerk if they had agreed upon their verdict, to which the foreman answered that they had, and that they found the defendant guilty, and thereupon the verdict was affirmed in the usual form. Held, that the verdict was duly re- turned Commonwealth v. Costello, 128 Mass. 88 (1880). 4. If a verdict as affirmed and recorded does not state with technical accuracy the finding of the jury upon the issue tried, and the court can see how it should be corrected, it will re- ject what is surplusage and make it conform to the issue tried. Ashton v. Touhey, 131 Mass. 26 (1881). 5. In an action of contract, on a promissory note, the defendant filed an answer in recoup- ment, for a larger amount than the note. At the trial in the Superior Court, the evidence tended to show that the defendant's damages were less than the note. The jury returned a verdict for the defendant, which the court set aside of its own motion. The defendant then moved that a verdict be entered for the plain- tiff for the difference between the amount of the note and the damages which the evidence showed that the defendant had sustained. The court overruled the motion; and the de- fendant alleged exceptions. Held, that the ex- ceptions must be overruled, with double costs. Phillips V. Granger, 134 Mass. 475 (1883). 6. If a husband and wife are sued jointly on a contract made by her in the prosecution of a business carried on by her separately in this Commonwealth, no certificate having been filed by either as provided in the St. of 1862, c. 198, and a verdict is returned against them jointly, the plaintiff may apply to the court for leave to amend, by discontinuing as to one of the defendants, and to enter judgment against the other. Ridley v. Knox, 138 Mass. 83 (1883). 7. If questions in writing are submitted to the jui'y, and a general verdict is returned without the questions being answered, it is within the discretion of the presiding judge to accept the verdict and to withdraw the questions; and to the exercise of this dis- cretion no exception lies. Florence Machine Co. V. Daggett, 135 Mass. 582 (1883). 8. If an indictment in several counts al- leges that they are different descriptions of the same act, and, at the trial, the evidence supports some of the counts and does not sup- port the others, a general verdict of guilty may be rendered. Commonwealth v. Flaqq, 135 Mass. 545 (1883). 9. During the deliberations of a jury, and in the absence of the presiding judge from the court, the officer in charge of the jury, upon being informed by the foreman that a juror was ill and required some brandy, saw the juror, thought him ill, and sent for and gave to the foreman two ounces of brandy. Afterwards another juror fell upon the floor in a fit, and the officer allowed a phj'sician to administer to the juror, who recovered. The jury subsequently agreed upon a verdict. Up- on a motion to set aside the verdict, the pre- sicMng judge found that the officer acted in entire good faith, and that the party against whom the verdict was given was in no way prejudiced by his acts. Held, that this court was not required, as matter of law, to set aside the verdict. Nichols v. Nichols, 136 Mass. 256 (1884). 10. After a verdict for the plaintiff in an action, if the defendant files a plea^uis dar- rein continuance, setting up his discharge in bankruptcy, to which the plaintiff replies, that the debt set out in the declaration was created by the fraud of the defendant, and is not barred by the discharge in bankruptcy, the issue so raised may be submitted to a jury, and the court is not first required to set aside the verdict rendered on the merits. Kellogg V. Kimball, 138 Mass. 441 (1885). 11. If, at the trial of an indictment, the jury fail to agree upon a special issue submitted to them, and, without objection, their general verdict is taken, the defendant has no ground of exception to the course of the judge in receiving the verdict. Commonwealth v. Carr, 143 Mass. 84 (1886). 12. If an indictment for adultery contains three counts, each charging a distinct offence, there is no repugnancy or inconsistency in a verdict convicting on one count and acquitting on the others. Commonwealth v. Ruisseau, 140 Mass. 363 (1888). 13. The 33d rule of the Superior Court, of 1874, prescribes that the general form of ver- dict shall be, if for the plaintiff, " The jury find for the plaintiff, and assess damages in the sum of ." In an action in that court against two defendants, the jury re- turned a paper, signed by the foreman, and not entitled with the name of the action, in the following words : " Verdict for plaintiff in the sum of," and stating the amount This was accepted as a verdict, and assented to by the jury. Held, that the defendants had no ground of exception. Miller v. Morgan, 143 Mass. 25 (1886). 1053 VOLUNTARY ASSOCIATION. 1054 VESTED REMAINDER. See Deed, V. pi. 21 ; Devise; Equity, X. pi. 9. VESSEL. See Ship. VOLUNTARY ASSOCIATION. See Assumpsit, VIII. pi. 8; Beneficiary Association; Corporation; Paktnekship. 1. A member of a voluntary association is not liable for a debt incurred by a committee of the association, if it does not appear that the member was present at the meeting ap- pointing the committee, and there is no evi- dence of the authority of the committee to incur the debt. Volger v. Ray, 131 Mass. 439 (1S81). 2. A voluntary association was formed for the encouragement of pigeon-breeding. A public exhibition was held, which, although not specially authorized by the constitution or by-laws of the association, was not incon- sistent with its objects. Held, that members who participated in a vote authorizing ex- penses to be incurred for the purposes of the exhibition, or who assented to be bound by such vote, might be charged, in equity, with their share of such expenses, at the suit of those members who had paid them. Ray v. Powers, 134 Mass. 22 (1883). 3. In an action against the members of an unincorporated association, for work and ma- terials furnished in fitting up the room in which the association held its meetings, oral evidence that the defendants, at one of the meetings of the association, passed a vote authorizing the acts of the defendant who ordered the woi'k and materials of the plain- tiff, is competent to show that the other de- fendants were jointly liable with him ; and the fact that one of the defendants, who acted as clerk of the meeting at which such vote was passed, has since destroyed the infor- mal minutes which he had taken for the pur- pose of preparing a record, does not pre- clude the plaintiff from showing that such a vote was passed. Newell v. Borden, 128 Mass. 81 (1879). 4. A number of persons associated them- selves together for the purchase of several tracts of upland and flats situated on the sea- shore, for the purpose of improvement and subsequent sales, and took a deed of the premises running to three of their number as trustees, and containing a detailed statement, in fifteen articles, of the trusts upon which the premises should be held. In these arti- cles, the names of the purchasers and their respective interests were mentioned. It was then provided that the "trustees shall and may pay all lawful taxes and assessments thereon ; represent the parties interested in all suits and legal proceedings relating to the premises in any court, and commence the same when necessary ; make and execute all necessary agreements relating to the said granted premises ; employ counsel, and do all acts and things, and pay out all sums of money necessary and proper, in the due execu- tion and management of said property; and, in particular, may provide for proper drain- age, and may determine all questions relative to the proper laying out of streets and ways, or building lots, subject to the instruction hereinafter provided for." A subsequent article provided that the interest of the pur- chasers should be divided into sixty thousand transferable shares of the nominal value of a certain sum each; and that the beneficiaries should be styled " The B. Company," An- other article provided that, in case the trustees should find it necessary to raise and expend money before they should receive sufficient funds from sales, they should have authority to collect all necessary sums by assessment upon the shareholders of not more than two dollars per share, with authority to make sales of shares for non-payment of assess- ments. The last article was as follows : " Said trustees shall not, in behalf of the shareholders, incur liabilities which will not be covered by said assessment of two dollars per share and receipts from sale of company property." Held, that, by the true construc- tion of the articles, the trustees were author- ized to incur liabilities on behalf of the share- holders to the amount of at least one hundred and twenty thousand dollars, and to make proper and reasonable contracts for the de- velopment and improvement of the property. Cooky. Gray, 133 Mass. 106 (1882). 5. A joint stock company formed under N. Y. Sts. of 1819, c. 258, 1851, c. 455, and 1853, c. 153, is not a corporation, and mem- bers of it may be sued here as partners, although suits have not been prosecuted here in the first instance against the officers of the association, as required by the statutes of New York. Boston §• Albany Railroad v. Pearson, 128 Mass. 445 (1880). 6. Under the laws of New York certain persons met, and resolved that " we organize ourselves and such others as shall join here- after into a joint stock association, and that we adopt" certain articles of association. They then signed the articles of association and adopted a form of subscription, which stated the name of the association and the names of the officers, and that the capital stock was $2,500,000, and by which the sign- ers purported to subscribe for the number of shares set opposite their names in the capital stock of the association, agreed to pay a cer- tain percentage on every share within ten days, and to pay such further calls as might be made by the company in pursuance of its articles of association, whereupon the com- pany was to issue its stock for the amount so subscribed, and authorized the secretary of the company to sign their names to the arti- cles of association. The prospectus stated 1055 VOTER. 1056 that the company " is organized with a capi- tal stock of $2,500,000;" that "a relatively small cash capital, and a percentage only of the subscriptions, will be required to put the company in working order; " and that subse- quent calls will be made as the business of the company requires. Subscriptions were obtained to the amount of $150,000. Held, that the subscription paper contained an ab- solute contract to take stock in an association already formed; that a person signing it, and paying the percentage required, became a partner in the enterprise, and was liable as such for a debt of the company, although he did not sign the articles of association, and never attended any meeting of the associa- tion, had no knowledge of the amount of the subscriptions or of the business of the asso- ciation, and was not known to the creditor to be a partner when the debt was incurred, and although no certificates of stock were issued to any one ; and, that if it was necessary to prove that a subscriber's percentage had been paid to the association in order to hold him as a partner, evidence that he paid it to the ex- ecutive committee of the association was suf- ficient. Boston If A Ibany Railroad v. Pearson, 128 Mass. 4i5 (1880). 7. A deed of land to a voluntary unincor- porated association, which is well known, and all the members of which may be ascertained, but which is not one of the class authorized by the Gen. Sts. c. 30, § 24, to take and hold real estate, may be construed as a grant to those who are properly described by the title used in the deed; and such persons are ten- ants in common of the land conveyed. Byam V. Bickford, 140 Mass. 31 (1885). 8. A member of a voluntary association, formed for the enforcement in a certain city of the laws against the illegal sale of intoxi- cating liquors, and for the prosecution of vio- lations of those laws, is incompetent to sit as a juror on the trial of a complaint of such a violation, instituted by an agent of the asso- ciation, who is furnished by it with money to pay his expenses in carrying on the work, and is also paid for his services. Commonweallh V. Moore, 143 Mass. 136 (1886). VOLUNTARY CONVEYANCE. See Fraud. VOTEE. See Constitutional Law, IV. pi. 6, 7; County Commissioners; Town. 1. Under the Pub. Sts. c. 7, §45, providing that the Governor, with five at least of the Council, shall " examine " the returns of votes, made by the city and town clerks to the Secretary of the Commonwealth, under § 40, and issue his summons to such persons as ap- pear to be chosen, the Governor has no power to recount the votes. Opinion of the Justices, 136 Mass. 583 (1884). 2. Under the Pub. Sts. c. 7, § 36, the board of aldermen of a city, upon a proper statement in writing by ten or more qualified voters of any ward, filed with the city clerk within three days following any election, has the jurisdiction and authority to open the envelope containing the ballots thrown at the election, and recount the same, including those for the offices of sheriff and district attorney. Opin- ion of the Justices, 136 Mass. 588 (1884). 3. Under the Pub. Sts. c. 7, § 36, providing for the filing, by ten or more qualified voters of a city, of " a statement in writing that they have reason to believe that the returns of the ward officers are erroneous, specifying where- in they deem them in error," a statement that the signers have reason to believe that the returns of the ward officers are erroneous in reg9,rd to certain officers mentioned is suffi- cient. Opinion of the Justices, 136 Mass. 583 (1884). 4. An action will lie against the selectmen of a town by ,a person whose name is wrong- fully erased from the register of voters re- quired to be kept by the Pub. Sts. c. 6, § 13. Lamed v. Wheeler, 140 Mass. 390 (1886). 5. A declaration alleged that an election was to be held on November 6, 1883; that the plaintiff's name was on the register of voters, and the plaintiff had the right to vote at such election; that on November 3, 1883, the se- lectmen of the town, although they had suffi- cient evidence furnished them of the plaintiff's qualifications as a voter, wrongfully removed his name from the register and the lists of voters, and wrongfully refused the ballot tendered by the plaintiff at the election. Held, that the declaration set forth a good cause of action for the erasure of the plain- tiff's name from the register of voters. Lamed V. Wheeler, 140 Mass. 390 (1886). 6. The Pub. Sts. c. 7, § 57, providing that "whoever . . . at any national, state, or mu- nicipal election . . . knowingly gives more than one ballot at one time of balloting at such election, shall be punished," do not ap- ply to ballots given, at a municipal election of a city, upon the question of granting licenses for the sale of intoxicating liquors. Commvn- wealth V. Howe, 144 Mass. 144 (1887). 7. Section 7 of the St. of 1885, c. 345, pro- viding that "no person hereafter naturalized in any court shall be entitled to be registered as a voter within thirty days of such natural- ization," is in conflict with the Constitution of the Commonwealth, and is void. Kinneen V. Wells, 144 Mass. 497 (1887). 1057 WAIVER. 1058 w. WAGES. See Assignment, I.; Assumpsit, III.; Master and Servant ; Ship ; Trustee Process. WAIVER. See Abatement; Appeal; Arbitrament, 1. pi. 7, III. pi. 4; Beneficiary Associa- tion, pi. 7; Bills and Notes, IV. pi. 6, 7, IX. pi. 15 ; Carrier, II. pi. 2, VII. ; Case Stated, pi. 4, 7; Collateral Security, pi. 12, 13; Equity Pleading; Exceptions; Executor, VII. pi. 3: Insurance; Jury; JIiLLS, pi. 14; Poor Debtor; Removal of Action, pi. 13; Savings Bank, pi. 24. 1. If a waiver, by all persons interested in land sold by a collector of taxes, of an infor- mality in the sale, after the bringing of a writ of entry by the purchaser at the sale against a person claiming title to the land as a disseisor, will operate by estoppel to make good the demandant's title as against such persons, it will not have that effect as against the tenant, who has the right to insist that judgment shall be rendered upon the title as it stood at the date of the writ. Reed v. Crapo, V6i Mass. 201 (1882). 2. A. was employed as superintendent of a railroad corporation, at a fixed salary, the employment to be terminated by three months' notice in writing. The corporation leased its railroad for a long term of years to another corporation, of which lease A. had notice; and, upon his representation that he had ac- cepted his position supposing it to be perma- nent, and that the lease would be a damage to him, for which he ought to be compensated, the corporation which employed him voted to pay him a certain sum as extra compensation whenever the lessee should take possession of the road. The lessee took possession on a certain day, and the corporation paid to A. the sum so voted, and also his regular salary up to that day. Held, in au action by A. against the corporation for three months' salary from the date when the lessee took possession, that it was error in the presiding judge, who tried the case without a jury, to rule that, as matter of law, A. was entitled to recover, without passing upon the question of fact whether A., by accepting the extra compensation voted, had not waived his right to the three months' notice provided for in the contract of employment. Nashua §" Low- ell Railroad v. Paige, 135 Mass. 145 (1883). 3. If an officer attaches personal property which is exempt from attachment, an omis- sion of the owner to claim it as exempt does not, as matter of law, constitute a waiver of supplement. — 34 the exemption. Copp v. Williams, 135 Mass. 401 (1883). 4. A. boarded his horse at B.'s stable, his custom being to take the horse from the stable each day and use it in his business, and return it to the stable at night. On one occasion, a certain sum being due B. for the horse's board, A. did not return the horse to the stable as usual, and B., upon finding the horse in A.'s possession about three weeks afterwards, took possession of the horse under a claim of a lien upon it, and left it in charge of his agent, who, with A., was to return the horse to the stable on the next day. On that day, A. told B.'s agent that he had concluded not to take the horse to B., but was going to see him. B.'s agent returned with A., leaving the horse behind. A. offered B. a certain sum in settle- ment of his claim, which he refused to ac- cept, and A. then promised to send the horse to B. on the next day, which he did not do. Held, on a petition to enforce a lien upon the horse, under the Pub. Sts. c. 192, § 32, that there was evidence that B. had waived his lien. Papineau v. Wentworth, 136 Mass. 543 (1884). 5. If the libellant in a libel for divorce goes to hearing without an answer having been filed by the libellee, it is too late at the argu- ment, upon a report of the case, to object that no answer was filed. Momson v. Morrison, 136 Mass. 310 (1884). 6. If the respondent in a bastardy com- plaint, who has been arrested upon a warrant duly issued, upon being brought before a police court, waives an examination, and the court thereupon orders hira to give a bond for his appearance before the Superior Court, which he does, there is no irregularity in these proceedings, upon which to found a motion to dismiss the complaint in the Su- perior Court. Hannan v. Doherty, 130 Mass. 567 (1884). 7. Soon after the trial of an action began, one of the jurors asked a friend of the defend- ant " why the defendant had not settled the case, and not allowed the same to come into court." The defendant was informed of this on the same day it occurred. The trial con- tinued two days thereafter, and resulted in a verdict for the plaintiff. Held, that the de- fendant had waived his right to rely upon the conduct of the juror as ground for a new trial. Rome V. Canney, 139 Mass., 41 (1885). 8. The fact that, before the expiration of three years from the date of an entry upon land to foreclose a mortgage thereon, the mortgagee received the avails of other secu- rity held by him for the same debt, but to an amount less than that of the mortgage debt, does not of itself prove an intention on his part to waive the foreclosure. Tompson v. Tappan, 139 Mass. 506 (1885). 1059 WAIVER. 1060 9. In an action on a bond for the convey- ance of a parcel of land, it appeared that one of the boundaries of the land as described in the bond was " southerly by F. Street;" and that the boundary as given in the deed ten- dered was "south by the north line of con- templated F. Street." It further appeared that, when the parties met, before the trial, the only objection made by the plaintiff to this description was to the word "contem- plated." At the trial the plaintiff took the objection that the description in the deed did not convey the land to the centre of the street. On the question whether the plaintiff had waived this objection, the judge instructed the jury that, if the plaintiff, when the parties met, was willing to take the deed notwithstanding this variance, and only insisted on the other variance, whether he knew there was such a variance or not was immaterial. Held, that this ruling was er- roneous. Holdsworth v. Tucker, 143 Mass. 369 (1887). 10. The giving of a bail bond by the defend- ant in an action is not a waiver of his right to object that the service of the writ was insuf- ficient. Baker v. Copeland, 140 Mass. 342 (1885). 11. The respondent in a petition for parti- tion of land, who does not object to an inter- locutory judgment for partition, cannot, at a hearing upon the motion to confirm the com- missioner's report, set up want of title in the petitioner as a bar to the petition. Mount Hope Iron Co. v. Dearden, 140 Mass. 430 (1886). .12. A bond, without a surety, filed by an appellant from the judgment of a district court, is not a sufficient compliance with the requirements of the Pub. Sts. c. 154, § 52, and the St. of 1882, c. 95, although the bond is approved in writing by the attorney of the appellee; and the Superior Court acquires no jurisdiction of the appeal. Henderson v. Benson, 141 Mass. 218 (1886). 13. As a general rule, a contract between a corporation and its directors is not absolutely void, but voidable at the election of the cor- poration; and the right to avoid it may be waived. Kelley v. Newburyport Horse Rail- road, 141 Mass. 496 (1886). 14. The plaintiff filed interrogatories to a witness, whose deposition was to be taken on a commission. The defendant objected to each and every interrogatory for form and substance, and waived the filing of cross-in- terrogatories. The plaintiff then filed addi- tional interrogatories, to which the defendant made the same objections, and also waived tlie filing of cross-interrogatories. The addi- tional interrogatories were not answered. Held, that this fact did not entitle the de- fendant to have the deposition excluded. Dole V. Wooldredge, 142 Mass. 161 (1886). 15. The St. of 1791, c. 32, incorporated a navigation company, and authorized it to build such dams, looks, and canals as were necessary for its purposes. The St. of 1880, c. 148, which was accepted by the corporation, provided that the corporation might maintain and use its dams, locks, and canals "as at present constructed; " authorized it to con- struct other dams, locks, and canals for the purpose of creating a water power to use or to lease for manufacturing purposes; provided that, for those purposes, the corporation should have all the powers and privileges, and be subject to all the duties, liabilities, and restrictions, set forth ia the general laws re- lating to manufacturing and other corpora- tions; relieved the corporation from the obli- gation to support its dams, locks, and canals for the purposes of navigation; and discon- tinued its canals as a navigable highway. Held, that the corporation, by accepting the St. of 1880, waived its right to build and maintain its dam at a greater height than that of the dam when the statute was passed ; and that, if it did so, a person injured thereby could maintain a complaint under the miU act, Pub. Sts. c. 190. Comins v. Turner's Falls Co., 142 Mass. 443 (1886). 16. A. and B., each of whom occupied a separate tenement in the same house, sepa- rately subscribed for a certain book, to be published in parts, each part to be delivered singly, and the subscriber's name to be printed on the title page. Two copies of a part were sent to the house occupied by A. and B., in one package, were there separated, and, by mistake, that with A. 's name on the title page was delivered to^., and that with B.'s name on the title page was delivered to A., the parts being in all other respects alike. This mistake was known to both A. and B., but was not known to the publisher of the book, who, upon A.'s refusal to pay, brought an action against him for the price of the same. Held, that A., by not giving notice of the mistake in the delivery of the part, must be considered to have waived it. Barrie v. Earle, 143 Mass. 1 (1888). 17. If a water company is authorized to take land for the purpose of laying its pipes, by a statute which prescribes the remedy for a person injured thereby, and the company does not comply with the requirements of the statute by filing a description of the land taken "sufficiently accurate for identifica- tion," a woman through whose land pipes are laid is not estopped to deny the sufficiency of the description by the fact that a peti- tion (which was afterwards discontinued) to have the damages assessed for the taking was brought, under the statute, with her knowl- edge, in the name of her husband; nor is she to be considered as having thereby waived her right to bring an action at law against the company for the trespass. Warren v. Spencer Water Co., 143 Mass. 9 (1886). 18. A person, by attending at the hearing upon an application to the board of aldermen of a city for a license, under the Pub. Sts. c. 102, § 47, to set up and run a stationary steam-engine, and not objecting to the insuf- ficiency in time of the notice of the hearing, waives longer notice to himself; and he can- not object that others had not due notice. Quinn v. Middlesex Electric Light Co., 140 Mass. 109 (1885). 1061 WARRANT. 1062 19. If A. knows or believes that B., in good faith, claims goods as the consignee of a sup- posed owner other than A., and, believing himself to be the owner and intending to claim the goods, stands by and permits B. to pay customs duties upon the goods without disclosing his claim, and with the intention of replevying the goods after the duties are paid, B. acquires an equitable lien upon the goods, which he is entitled to have discharged before A. can obtain possession of them ; and such lien is not waived or lost by the refusal of B. to surrender the goods without placing his refusal on the ground of lien. Fowler v. Parsons, 143 Mass. 401 (1887). 20. If a creditor of an insolvent debtor, who holds security which comes within the terms of the Pub. Sts. c. 157, § 28, inadvertently and by mistake, either of law or fact, proves his whole debt against the insolvent estate without disclosing his security, and, before he has derived any advantage or the other creditors have suffered any detriment from his act, takes proper measures to waive his proof and to pursue his rights as a secured creditor according to the statute, he does not waive his security, and the unsecured cred- itors do not acquire an equitable right to it which can be enforced by the assignee of the estate. Nichols v. Smilh, 143 Mass. 455 (1887). 21. A. brought an action in the Superior Court upon a judgment obtained therein against B., in which action personal service of the writ was made upon B , who appeared therein, and set up in his answer that the judgment was erroneous, because there was no sufficient service upon him in the original action, and that, before the judgment was ob- tained, he had paid in full the debt upon which it was founded. The judge ruled that error in the original judgment could not be set up in the action thereon, and, upon ex- ceptions, this ruling was sustained ; and, upon the other issue presented, the judge refused to permit B. to go to the jury. B. after- wards applied to the Superior Court for leave to show that the claim on which the judg- ment was based had been paid and extin- guished before the judgment was rendered; and the court, in its discretion, refused to permit this. Held, that B. had not waived his right to bring a writ of error to reveise the former judgment. Eliot v. McCormick, 144 Mass. 10 (1887). See also Martin v. Kit- treilge, 144 Mass. 13, note (1887). 22. If the Probate Court, upon the petition of a wife, under the Pub. Sts. c. 147, § 33, for separate support, enters a decree, by con- sent of both parties, that the husband pay to the wife a sum in gross, as the whole sum to which she is entitled by way of separate sup- port, and the husband pays such sum to the wife, who gives a receipt for it, and never offers to return it, she thereby waives her right to appeal from the decree upon the ground that the sum awarded is "insufficient for her apparent needs during the probable length of her life." Dnole\. Doole, 144 Mass. 278 (1887> WALL. See Fence ; Party Wall. WAREHOUSEMAN". See Agent, VII. ; Bill of Lading. 1. The effect of the indorsement and de- livery, in another State, of a private ware- house receipt for goods stored in this State, is to be determined by the law of this State. Hallgarten v. Oldham, 135 Mass. 1 (1883). 2. The indorsement and delivery, by the bailor, of a receipt for goods stored in a private warehouse, in which the bailee under- takes to deliver the goods to the bailor upon the payment of charges, but not to hold or deliver to his order, do not pass the title in the goods to the indorsee, as against a credi- tor of the bailor, who attaches the goods be- fore notice of such indorsement has been given to the bailee. Hallgarten v. Oldham, 135 Mass. 1 (1883). 3. B. bargained with A. for a car-load of goods of a certain quality. A. sent the goods, by a railroad company, consigned to himself, and sent to B. a bill for the goods, and an order on the carrier to dehver to B. on payment of freight. B. paid the freight, and, finding that the goods were not of the quality ordered, refused to receive them. The carrier notiiied B. that, if he did not take the goods, it would store them. The goods were not taken away, and the car- rier stored them with a warehouseman, but did not notify either A. or B. of this fact, which came to the knowledge of B. ten days after the storage began. Five months afterwards, B. made an arrangement with A. and bought the goods. The carrier delivered a portion of them without claiming a lien, and refused to deliver the remainder unless his charges were paid. B. then replevied the remainder from the warehouseman. Held, that the warehouseman had a lien on the goods replevied for his storage charges on all the goods; and that the action of replevin could not be maintained. Barker v. Brown, 138 Mass. 340 (1885). 4. In an action of contract against a ware- houseman, for a failure to keep safely goods entrusted to him, if it appears that the goods were returned in a damaged condition, and that the damage was caused by the fall of the warehouse, the burden of proof is on the plain- tiff to show that such damage was caused by the negligence of the defendant or his ser- vants. Willett V. Rich, 142 Mass. 356 (1886). WARRANT. See Indictment, pi. 14; Justice op the Peace; Parish Record; Search- War- rant; Spirituous Liquors. 1. It may be doubted whether, when the ac- cused is before the court, any objection to the 1063 ■WATERCOURSE. 1064 form of the warrant on -which he has been brought in is open to him at any stage of the prosecution. Gray, C. J., in Commonwealth V. Wait, 131 Mass. 417 (1881). 2. The recitals in a warrant issued by a justice of the Superior Court, under the Pub. Sts. c. 80, § 88, for a jury to revise an order of the board of health of a town, that the court was not then in session in the county where the order was made, and that a fail- ure of the applicants for the warrant to appeal from the order was caused by mistake, are not conclusive ; and if the court was then in ses- sion in such county, and no hearing was had upon the question whether the failure to ap- peal was caused by mistake, the warrant and the proceedings under it are void. Greene v. Milford, 139 Mass. 69 (1885). 3. On an application to a justice of the Su- perior Court, under the Pub. Sts. c. 80, § 88, for a warrant for a jury to revise an order of the board of health of a town, a warrant issued, dated October 27, requiring the sheriff to em- panel a jury on November .15, and containing the recitals that the court was not then in session in the county where the order of the board of health was made, and that a failure of the applicants to appeal from such order within three days was caused by mistake. On November 12, application was made to the same justice to change the time of em- panelling the jury to November 23. He did so by changing the date in the warrant from November 15 to November 23; and nothing further was done at that time. Held, that the warrant could not be considered as issued on November 12 ; and that, even if it could be so considered, and if the court was in session on that day, the warrant would not be valid un- less the judge then passed upon the question whether the failure to appeal within three days was caused by mistake. Greene v. Mil- ford, 139 Mass. 69 (1885). 4. A warrant to the collector of taxes of a town, issued and signed by the selectmen, af- ter referring to a copy of an assessment made upon a landowner for the cost of the construc- tion of a sewer, directed the collector to col- lect it " according to law," and did not direct him how to dispose of the money when he re- ceived it. There was no informality in the proceedings of the collector under it. Held, that the warrant was valid. Leominster v. Conant, 139 Mass. 384 (1885). WARRANTY. See Covenant; Sale, V. WATERCOURSE. As to artificial watercourses, see Aque- duct. As to Fisheries, see Fish. For rights and liabilities of mill-owners, see Mills. As to ponds, see Pond. As to sewers, see Seweb. See also Equity, VIII. pi. 1. 1. St. 1872, c. 343, authorized the town of Brookline to take, hold, and convey, for ne- cessary uses, the waters of Charles River to a certain amount daily, and for this purpose to take and hold lands, build reservoirs, aque- ducts, and dams; and provided that it should pay all damages sustained by any person in his property by such taking of water, or of any land, rights of way, water rights, or ease- ments, and that the owner of any property taken as aforesaid, or other person " sustain- ing damages as aforesaid," should recover damages in a mode pointed out. Held, that if a person on the river, above the place where the town took water, had acquired the right to foul the stream, there was no taking by the town of such right by implication. Brookline V. Mackintosh, 133 Mass. 215 (1882). The town accquired land on the bank of the river, and took the water by percolation into a filtering galley. Four thousand feet above its works, A. carried on the business of wool- pulling, and cast daily into the stream, in the process of such business, animal matter in a state of decomposition,. together with a small amount of arsenic. The quantity so cast into the river made no perceptible difference in the quality of the water at the point where the town took its supply, and no trace of arse- nic could be there discovei-ed by chemical analysis. If the town should take its water directly from the river, there would be a pos- sibility, especially in times of freshets, that some arsenic would be carried into the water used by the town. A.'s factory was not run to its full extent, and the danger from arsenic would be increased by any increase in the use of the factory. A. could not acquire a pre- scriptive right to pollute the river. Held, that the town could not maintain a bill in equity against A. to restrain him by injunc- tion from continuing his business. Brookline V. Mackintosh, 133 Mass. 215 (1882). 2. Since "the passage of St. 1878, c. 183, forbidding the discharge into any river or stream, used as a source of water supply by any city or town, within twenty miles above the point where such supply is taken, of any sewage, drainage, refuse, or polluted matter of such quality or amount as to be deleterious to health, a person cannot acquire by prescrip- tion the right so to foul a stream within such distance, as against a city or town using the stream as its source of water supply. Brook- line V. Mackintosh, 133 Mass. 215 (1882). 3. An owner of land on one side of a brook, opposite to which land, at the mouth of and bounding on the brook, there is a public land- ing, and also of land on both sides of the brook at a short distance up the stream, is not entitled to withdraw and dispose of one half of the water running in the brook, as an article of merchandise, but only to use such water as it flows down the channel. Moulton 1065 WATERWORKS. 1066 V. Newluryport Water Co. 137 Mass. 163 (1884). 4. A. landowner may collect the surface water of his land, and the water drawn from wells therein, into an artificial stream, and discharge this stream into a natural water- course running through his land, provided that this is done in the reasonable use of his land, and that the volume of water is not in- creased beyond the natural capacity of the watercourse to discharge it, and the land of an adjoining owner is not thereby overflowed and materially injured. Jackman v. Arling- ton Mills, 137 Mass. 277 (1884). 5. A landlord is liable for the acts of bis tenant in polluting the waters of a brook, which is a natural watercourse running through the premises, by discharging sink- water therein, if the building leased is adapted and intended to be used in the man- ner complained of, whether he retains control over the house or not. Jackman v. Arlington Mills, 137 Mass. 277 (1884). 6. In an action for polluting the waters of a brook, which is a natural watercourse, if the iajury to the plaintiff resulting from the defendant's acts can be specifically ascer- tained, it is no defence that the plaintiff has also polluted the brook. Jackman v. Arling- ton Mills, 137 Mass. 277 (1884). 7. An action of tort, for diverting the waters of a natural stream in this Commonwealth, and preventing the same from coming to the plaintiff's mill in an adjoining State, may be maintained in this Commonwealth. Mannoille Co. V. Worcester, 138 Mass. 89 (1884). 8. In an action for obstructing a water- course by a dam, and thereby preventing the flow of water to the plaintiff's pond, there was evidence, in behalf of the defendant, that, in making a pond on his own land, he tapped some springs of water, and that more water at all times ran down to the plaintiff's pond, through the watercourse, after the construc- tion of the defendant's poud than before, by reason of the raising of the defendant's draw- gate from time to time, the overflow from the pond, and leakage. Held, that the defendant was not entitled to a ruling, that, if because of the defendant's opening up new sources of supply to his pond the overflow or amount that ran down to the plaintiff's pond was equal to or larger than before, the plaintiif could not recover. Ware v. Allen, 140 Mass. 513 (1886). 9. A petition to the Superior Court for a jury to assess against a railroad corporation damages caused to land adjoining that taken for the location of the railroad and conveyed to the corporation by the petitioner's predeces- sor in title, by subsequently cutting off, in changing the grade of the road, all natural drainage of surface water from the adjacent lands, by discharging surface water from the road-bed of the railroad upon the petitioner's land, and by shutting off the view, light, and air therefrom, cannot be maintained. Cassidy y. Old Colony Raaroad,U\ Mass. 174 (1886). 10. Mere surface drainage over one tract of laud to anpthelTj through a ditch, does not con- stitute a watercourse. Stanchfield v. Newton, 142 Mass. 110 (1886). 11. In an action of tort against a city for flooding the plaintiff's land, the plaintiff's evidence tended to show that the defendant constructed a drain along a street, and thence through a private way to a catch basin near the rear of the plaintiff's land ; that the ob- ject of the drain was to carry off surface water, a portion of which naturally ran away from the plaintiff's land; that in the rear of this land was a small brook or ditch; that the water in wet seasons overflowed the catch basin, rose to the surface of the ground, ran into the brook, and did the injury complained of; and that the ditch or brook ran under a street through a culvert which was insufficient in size and choked up, and thereby water was backed upon the plaintiff's land. The evi- dence for the defendant contradicted the facts and causes of damage alleged by the plaintiff. The plaintiff asked the judge to instruct the jury that the defendant could not lawfully collect water not naturally coming near the plaintiff's land, and, conducting it by an arti- ficial channel, precipitate it upon his land; that, if the ditch was a natural watercourse, the defendant was bound to make a suitable culvert for it under the street, for the passage of water which might naturally come there or be brought there by the defendant's acts; that, if the culvert had been maintained by private persons for more than twenty years, it was the duty of the defendant to see that it was not obstructed, even if the waters were not those of a natural stream. The judge declined so to rule, and instructed the jury that the de- fendant had no right to go beyond the limits of its highways for the disposal of surface water, without the permission of the adjoin- ing proprietors; that, if the owners of the private way assented, the defendant might place the drain therein, and, with the assent of the owners of the land, conduct the water to the ditch and culvert, and the plaintiff could not complain unless he was a riparian proprietor on the brook ; that, if the plaintiff was not such proprietor, he could not com- plain that the brook was so interfered with that the water which flowed into it could not flow out of it; and that, if the defendant im- properly constructed the drain, and so negli- gently maintained it, either by itself or in connection with the culvert, that the plaintiff sustained an injury, he could recover. Held, that the plaintiff had no ground of exception. Stanchfield v. Newton, 142 Mass. 110 (1886). WATERWORKS. See Aqueduct ; Attorney General ; Corporation, V. pi. 3 ; Equity, VIII. 1. By St. 1872, c. 177, §§ 1, 4, authorizing the city of Boston to take, hold, and convey into the city all the water of Sudbnry River, and the water of Farm Pond, and the waters that may flow into and from said river and 1067 WATERWORKS. 1068 pond, and to take any water rights in or upon said river or pond in or above a certain town, or connected therewith; and providing that nothing contained in the act shall be construed to prevent the inhabitants of certain towns ' ' from taking from the Sudbury or Assabet Rivers or Farm Pond so much of the water hereby granted as shall be necessary for ex- tinguishing fires and for all ordinary domestic and household purposes," the owner of land in one of the towns named, through which a tributary of the Sudbury River flows, is not deprived of the right to use the water of such tributary stream for domestic purposes. Johnson v. Boston, 130 Mass. 452 (1881). 2. At the trial of a petition for the assess- ment of damages for land taken by the city of Boston for a storage reservoir, under St. 1872, 0. 177, evidence is admissible to show that the use of the land taken as a storage basin will necessarily render the petitioner's dwelling-house on his remaining land un- healthy as a residence. Johnson v. Boston, 130 Mass. 452 (1881). 3. The recovery of a judgment, which has been satisfied, upon a petition under St. 1872, c. 177, for the taking of land by the city of Boston, for the purpose of connecting the waters of Sudbury River with Lake Cochitu- ate, is a bar to an action of tort against the city for injury to the same land, done before the city had filed a statement and description of the land taken under the statute. Lewis v. Boston, 130 Mass. 339 (1881). 4. St. 1863, c. 163, gave a city the right to construct a reservoir and dam for the storage of water, and provided that the owner of any land taken by the city for the purposes of the act, or other person, who should sustain dam- age by the construction of any dam or reser- voir, might apply by petition for the assess- ment of his damages at any time within three years from the taking of said land or sustain- ing damage as aforesaid, and not afterwards; and that whenever any damages were sus- tained as above set forth, the city might, in case of neglect by the person damaged to in- stitute proceedings for twelve months, com- mence such proceedings, which should be determined as if commenced by such person. Held, that a petition could not be maintained, after the expiration of three years from the construction of the dam and reservoir, by a person whose land was injured by water per- colating through his land from the reservoir, although such percolation did not take place until after the expiration of the three years. Davis V. New Bedford, 133 Mass. 549 (1882). 5. St. 1S72, c. 343, gave a town the right to take the waters of a river, and provided that any person, sustaining damage in his property by the taking of lands and water rights, or by the construction of any aqueducts or other works for the purposes of the act, might apply by petition for the assessment of his damages at any time within three years from the taking of said property or construc- tion of said works, and not afterwards ; and that no application should be made for such assessment of damages until the water was actually withdrawn or diverted by the town under the authority of the act. Held, that a petition, filed more than three years after a withdrawal of the water, by direction of the engineer of the town, acting under authority of the water commissioners, for the purpose of testing the engine, but less than three years before an actual distribution of water to the inhabitants of the town, was filed too late. Tileston v. Brookline, 134 Mass. 438 (1883). 6. St. 1871, c. 133, authorized a city to take the waters of a great pond for the pur- pose of supplying its inhabitants with pure water; and provided that the city should be liable to pay all damages that should be sus- tained by any person in his property by the taking of said waters, or by the taking of any land or water rights. Under the authority of this statute, the city passed an order taking a certain quantity per day of the waters of the pond. A company had been previously incor- porated " for the purpose of constructing a reservoir of water in " the pond, "for the benefit of the manufacturing establishments on " a river which was the outlet of the pond; and it had power to build a dam so as to raise the water in the pond to a certain height. Its capital stock had always been owned, and it had been managed, by the mill-owners on the river, each of whom owned the privilege at- tached to his mill. Held, that the corpora- tion could maintain a petition for any damage to its dam or other property caused by the taking by the city of the waters of the pond; and that each mill-owner was the proper party to bring a petition for damages to his privilege by such taking. Held, also, that the city was liable for depriving the petition- ers of water used for other purposes, as well as for power. Held, also, that a corporation, whose lands did not border on the stream, but to whose' mill water was conveyed by a canal running through the land of a riparian owner, under a deed giving the right to the flow of water from the stream, had the same rights against the city as the riparian owners ; and that an owner of a mill privilege on a river half a mile long, which was the outlet of the pond, could maintain a petition, under the statute, for an assessment of the damages to his privilege by the taking by the city of the waters of the pond. Watuppa Reservoir v. Fall River, 134 Mass. 267 (1883). 7. If water from a reservoir constnicted by a city flows upon a person's land, and the city proposes to divert the water so that it will cease to flow upon and injure the land, and is induced not to do so by the request and pro- hibition of the owner of the land, the latter is estopped to maintain a petition against the city for damages caused by such flowage, if there has been no revocation of such request and prohibition. Griffin v. Lawrence, 135 Mass. 365 (1883). 8. The St, of 1872, c. 79, authorized a city to take certain water, and land for the con- struction of such works as might be necessary therefor, and also " for laying and maintain- ing aqueducts or pipes." The act further 1069 WATERWORKS. 1070 provided a remedy for damages sustained by any person by the taking of any land or water, or by the construction of waterworks or the laying of pipes. Held, that this statute did not prevent a person whose house was injured by the negligence of the servants of the city, in laying a pipe from the main pipe in the street to the house, from maintaining an action of tort for such injury. Perkins v. Lawrence, 136 Mass. 305 (1884). 9. The St. of 1871, c. 307, authorized a town, for the purpose of supplying its inhabit- ants with water, to take the waters of a great pond and the waters which flowed into it, and any water rights connected therewith, and to take and hold such lands as might be neces- sary for erecting and maintaining dams and reservoirs, and for laying and maintaining pipes and other works for collecting, conduct- ing, and distributing said waters; provided that the town should be liable to pay all dam- ages that should be sustained by any person in his property by such taking of land, water, or water rights, or by the construction of such works; that no application should be made for the assessment of damages for the taking of any water rights until the water was actu- ally withdrawn or diverted by the town ; and that such application must be made within one year from the time when the water was actually withdrawn or diverted. The town accepted the statute; and took land, which was afterwards conveyed to it by the owners, and constructed thereon a water gallery and pumping station. It laid pipes from the gal- lery to the pond, but never used them. It pumped water for the use of its inhabitants fi'om the gallery on a certain day, and con- tinued to supply water from the gallery; and, within a year from that day, the owner of a mill privilege on a brook, which was the out- let of the pond, applied for the assessment of his damages. Held, that, if a substantial portion of the water in the gallery came by percolation from the pond, or if the water intercepted by the works constructed by the town and used by it would otherwise have flowed into the pond, the petition for the as- sessment of damages was not premature, and could be maintained. Cowdrey v. Woburn, 136 Mass. 409 (1884). 10. By the St. of 1871, c. 307, §§ 1, 2, a town was authorized to take the waters af a pond, and for this purpose to build aqueducts, and erect and maintain dams, and make reser- voirs. By § 11, it was authorized to erect and maintain a dam at or near the outlet of the pond, so as to hold the waters of the pond at a level not exceeding six feet above high- water mark. Held, that, under §§ 1, 2, the town had the right to build a dam at the out- let so as to hold the waters of the pond at high-water mark. Cowdrey v. Woburn, 136 Mass. 409 (1884). 11. At the trial of a petition for the assess- ment of damages caused to the owner of a mill privilege on a pond by the taking of the waters of the pond by a town under the au- thority of a statute, which provided that no such petition should be filed until the water was actually withdrawn or diverted by the town, the following rule of damages was given to the jury: "First ascertain what was the fair market value of the petitioner's mill with its water rights appurtenant to it, and then ascertain how much its value has been di- minished by the existence of this right of the town to use now and prospectively the waters which would otherwise come to his mill. This diminution is the sum to which the petitioner is justly entitled as compensation. To this sum add interest from the time when the water was first actually diverted." Held, that the respondent had no ground of excep- tion. Cowdrey v. Woburn, 136 Mass. 409 (1884). 12. The measure of damages for taking land on the side of a stream by a water company is the fair market value of the land at the time it is taken, and not its market value as a storage basin to the company, or as such a basin for supplying the town in which it is situated, or other adjacent towns, with water by pipes carried thereto. Mvulton v. New- buryport Water Co., 137 Mass. 163 (1884). 13. The St. of 1882, c. 192, gave a town the right to take certain waters, or so much thereof as might be necessary, and the water rights connected therewith, and lands; and provided that the town should, within ninety days after the taking of any lands or water rights, file in the registry of deeds a descrip- tion thereof sufficiently accurate for identifies^ tion, with a statement of the purpose for which the same was taken. A subsequent section of the act provided that a person in- jured in property under the act might have the same assessed by an application in writing within one year after the taking of such land or water right, but not thereafter; and that no assessment for damage should be made for the taking of any water right until the water was actually withdrawn or diverted by the town under the authority of the act. Held, that an application for injury to a water right, filed more than a year after the right had been taken, but within a year after the de- scription was filed in the registry of deeds, was filed too late. Northborough v. County Commissioners, 138 Mass. 263 (1885). 14. A town authorized by a special statute to take water and water rights, and required to file a description thereof, filed a paper con- taining a recital that "whereas" the town has erected a dam across a certain brook, and has taken and appropriated the water from said brook and water rights connected there- with above said dam, followed by the sen- tence, " The water so taken as aforesaid is for the purpose of supplying the town with pure water." Held, that the description was sufficient, and that it applied to water rights below the dam as well as to those above. Northborough v. County Commissioners, 138 aiass. 263 (1885). 15. A town authorized by a special statute to take water and water rights, and required to file a description thereof within ninety days, built a dam across a stream in 1882, and filed a paper about six months afterwards re- 1071 WATERWORKS. 1072 citing the taking, and that the town " within ninety days after said taking hereby files " a description thereof. By the terms of the statute, a person injured by a taking under the statute was required to file an application for damages within a year after the taking. A petition was filed on the last day of the year after the filing of the description. Held, that, if the town was estopped by the declara- tions in the description, it could still refer the taking to the earliest point of time consistent with the instrument; and that the petition was filed too late. Northborough v. County Commissioners, 138 Mass. 263 (1885). 16. Water rights belonging to different owners were taken by a water company, for the purpose of supplying a town with pure water, under a statute which provided that damages occasioned by the taking should be assessed and determined in the manner pro- vided when land is taken for highways. Sep- arate petitions were filed, and the cases were heard together before a sheriff's jury, which awarded to some of the owners larger dam- ages than had been awarded by the county commissioners, and to one owner a less sum. Held, that none of the petitioners were enti- tled to have costs taxed against the water company ; but that the prevailing pai-ties were entitled, under the Pub. Sts. c. 49, § 56, to have their costs paid from the county treas- ury. Held, also, that the provisions of the Pub. Sts. c. 49, §§ 18-24, did not apply. Dickinson v. Amherst Water Co., 139 Mass. 210 (1885). 17. The city of Boston took the watei-s of Farm Pond, under the St. of 1872, c. 177. Section 4 of the act provided that nofting in the act should be so construed as to prevent the inhabitants of certain towns from taking from the pond so much of the water granted as should be necessary ' ' for all ordinary do- mestic and household purposes, and for the generation of steam." A manufacturing cor- poration in one of the towns drew water from the pond for generating steam, and for grind- ing, washing, and cooling rubber. Held, on a bill in equity by the corporation to restrain the city from interfering with the plaintiff in the use of the water, that grinding, washing, and cooling rubber were not purposes for which the inhabitants had a right, under the act, to use the water; and that, until the un- lawful use was discontinued, the plaintiff had no standing in court. Para Rubber Shoe Co. v. Boston, 139 Mass. 155 (1885). 18. The St. of 1846, c. 167, § 1, authorized the city of Boston to take the water of Long Pond, " and the waters which may flow into and from the same, and any other ponds and streams within the distance of four miles from said Long Pond, and any water rights con- nected therewith;" and also to "take and hold any land on and around the margin of said Long Pond, not exceeding five rods in width, .... and on and around the said Other ponds and streams, so far as may be necessary for the preservation and purity of the same, for the purpose of furnishing a supply of pure water for the said city of Boston." Held, that water rights might be taken, so far as might be necessary for the preservation and purity of the water; and that the words " and any water rights connected therewith " were not limited to the " other ponds and streams," but included Long Pond itself, and the waters which might flow into and from the same. Held, also, that, under this statute, the city might take a prescriptive right to pollute the waters of a stream running into Long Pond ; and that it was not necessary for this purpoSjC to take the land on the sides of the stream. Martin v. Gleason, 139 Mass. 183 (1885). 19. Under the St. of 1846, c. 167, § 1, the city of Boston filed a taking of all the waters of Long Pond, "and other brooks and streams, whether permanent or temporary, entering into the same, . . . and all the water rights thereunto belonging, or in any wise appertain- ing, for the sole use and benefit of said city." Held, that this included the waters of any stream running into Long Pond, and any fight then existing to pollute the waters of such stream. Martin v. Gleason, 139 Mass. 183 (1885). 20. After the taking of the waters of a stream for the purpose of supplying a city with pure water, a prescriptive right to pol- lute the stream cannot be acquired. Martin V. Gleason, 139 Mass. 183 (1885). 21. If a pond and the waters of a stream running into the pond are taken for the pur- pose of supplying a city with pure water, it is no defence to a petition in equity, under the St. of 1884, c. 154, for an injunction to re- strain a person from polluting the stream, that the city has, by means of a dike, prevented the waters of the stream from running into and polluting the waters of the pond. Mar- tin V. Gleason, 139 Mass. 183 (1885). 22. The power conferred by the St. of 1846, c. 167, § 11, and the St. of 1861, c. 105, § 13, upon the city councils of Boston and Charles- town respectively to appropriate the sur- plus income arising from water rates to a sinking fund, and which by the St. of 1875, c. 80, and an ordinance passed in pursuance thereof, became vested in the Boston Water Board, is not taken away by the St. of 1875, c. 209 (Pub. Sts. c. 29). Minoty. Boston, 142 Mass. 274 (1886). 23. If a statute authorizes an aqueduct cor- poration to take and use the waters of certain ponds to supply the inhabitants of a town with water, and to enter upon and take any lands necessary for maintaining its works for this purpose, and provides that damages sustained thereby may be recovered in the manner pro- vided where land is taken for highways, and that nothing in the act shall authorize the cor- poration to raise the water of any of said ponds above high-water mark, nor to drain any of them below low-water mark, and the corporation, in proceeding under the statute, violates this last provision, and causes damage to a landowner, the latter may maintain an action of tort against the corporation there- for; and it is immaterial that the land so in- jured is situated in another State. Brickett v. Haverhill Aqueduct, 142 Mass. 394 (1686). 1073 WATERWOEKS. 1074 24. The St. of 1867, o. 73, in § 1, author- ized an aqueduct company to take and use the waters of two ponds named, and of a cer- tain lake. In § 5, it was provided that nothing in the act should be construed to authorize the company " to raise the water of any of said ponds above high-water mark, nor to drain any of them below low- water mark." Held, that the restriction applied to the lake as well as to the ponds. Brickett v. Haverhill Aque- duct, 142 Mass. 394 (1886). 25. The St. of 1867, c. 73, authorizing an aqueduct corporation to take and use the waters of certain ponds to supply the inhab- itants of a town with water by an aqueduct, and to enter upon and take any lands neces- sary for laying and maintaining aqueduct pipes or other works necessary for that pur- pose, and providing that "all damages sus- tained by entering upon and taking land, water, or water rights, for either or any of the above purposes, shall, in case of disagree- ment with the parties injured, be ascertained, determined, and recovered in the same man- ner as is now provided in cases where land is taken for highways," makes, in connection with the general laws, adequate provision for compensation, and is constitutional. Brickett V. Haverhill Aqueduct, 142 Mass. 394(1886). 26. If a water company is authorized to take land for the purpose of laying its pipes, by a statute which prescribes the remedy for a person injured thereby, and the company does not comply with the requirements of the statute by filing a description of the land taken "sufficiently accurate for identifica- tion," a woman through whose land pipes are laid is not estopped to deny the suf- ficiency of the description by the fact that a petition (which was afterwards discontinued) to have the damages assessed for the taking was brought, under the statute, with her knowledge, in the name of her husband; nor is she to be considered as having thereby waived her right to bring an action at law against the company for the trespass. War- renv. Spencer Water Co., 148 Mass. 9 (1886). 27. The St. of 1882, c. 119, § 2, authorized a water company to take and hold any real estate necessary for laying and maintaining aqueducts and pipes, and to lay its water pipes through any private lands, with the right to enter upon the same and dig therein for that purpose. Section 3 provided that "said corporation shall, within sixty days after taking any land under the provisions of this act, file and cause to be recorded in the registry of deeds ... a description of any land so taken, sufficiently accurate for identi- fication, with a statement of the purpose for which it is so taken, and shall also notify the owner of any such land of the taking thereof; and the title of the land so taken shall then vest in said corporation." The corporation filed in the registry of deeds a plan, pui-port- ing to show the location of the " pipe line," and containing a declaration that the corpo- ration " has taken for the purpose of laying its main pipes the lands of " certain persons named, " which lands are described as on the above plan." The plan showed the courses and distances of the line through tracts of land which were marked with the names of the supposed owners. The point on a certain pond where the line began, the other terminus of the line, and the points where the line crossed the boundaries of the land of the persons named, were not defined with refer- ence to monuments, or distances from monu- ments; and the width of the line was not defined, although the plan had on it "14 inch pipe from pond to Main Street." There was no declaration on the plan that the waters of any pond, brook, or river had been taken. Held, that the location was invalid. War- ren V. Spencer Water Co., 148 Mass. 9 (1886). 28. At the trial of a petition for the assess- ment of damages caused by the taking by the respondent, a water company, of the water of a certain pond, and diverting it from flowing in its natural channel through the petitioner's land, it appeared that the respondent, in 1883, acting under its charter, took the water of the pond; that the petitioner owned land near by, through which a brook from the outlet of the pond flowed; that, some three miles down stream, the S. Company ovmed mills, and claimed to own the right to stop the flow of the water from the pond by a dam at the out- let, and also to draw down the water through the outlet, at its pleasure; that, about seven months after the respondent had taken the water of the pond, the S. Company conveyed to the respondent all its right in and to the water of the pond; that, in 1774, the pro- prietors of the common and undivided lands in the town where the pond was situated passed a vote, giving to one D. the right to drain off the water of the pond, and to build a dam at the mouth of it ; and that a succes- sion of deeds followed, beginning with one from D., with another from his representa- tives in 1818, and finally coming down, by mesne conveyances, to the S. Company, grant- ing such rights as the grantors respectively had to the use of the pond and the outlet thereof, for stopping or letting off the water of the pond. The respondent asked the judge to rule that the respondent, by the deed from the S. Company, acquired and succeeded to the rights of that company in the pond and in the outlet thereof in all respects, whether for stopping or letting off the water from the pond ; and that the deeds in this case showed a right in the S. Company to stop and let down the water in the pond at its pleasure, and its right was conveyed to the respondent. The judge declined so to rule, and instructed the jury that a prescriptive right might be acquired by the respondent and those under whom it claimed to regulate the flow of the water of the pond, but that it must allow the water of the pond to flow through the channel of the brook, and that the deeds were only some evidence of a prescriptive right to regu- late the flow of water. Held, it being con- ceded that the grant to D. was only for his life, that the respondent had no ground of exception. Warren v. Spencer Water Co., 143 Mass. 155 (1887). 1075 WAY, I. 1076 29. The St. of 1872, c. 188, authorized a town, for the purpose of supplying its inhab- itants with water, to take the waters of a pond and the waters which flowed into and from the same, and to take and hold lands, and to make dams and lay pipes; and provided that no application should be made for the assess- ment of damages for the taking of any water rights until the water was actually taken and diverted by the town, and that any such appli- cation must be made within three years from the time when the water was actually with- drawn or diverted. The town accepted the statute, took " the waters " of the pond, and laid a pipe, which was capable of withdrawing a portion only of the water, and which had but little effect upon the flow of water through the outlet. More than four years afterwards, the town took "the outlet " of the pond, and land of A. at the outlet, and constructed a dam on the land. A. filed a petition for the assessment of damages to his land and water rights more than three years after the first taking, but within three years from the second taking. Held, that the petition, as to his water rights, was filed too late. Smith v. Concord, 143 Mass. 253 (1887). 30. The Pub. Sts. c. 110, §§ 15, 16, author- izing a city or town in which an aqueduct is situated to put conductors into the pipes for the purpose of drawing water thei'efrom in case of fires, and empowering the selectmen to make provisions for taking water for pro- tection against fire, have no application to a water company whose charter does not confer a similar power upon the town in which it is situated, or upon the selectmen. Smith v. Dedham, 144 Mass. 177 (1887). 31. The selectmen of a town, under a vote of the town authorizing it to do so. made a contract with a water company for three years, at a certain rate a year, for the service of a certain number of hydrants. At the ex- piration of the three years, a town meeting was duly called to consider an article in the warrant, to see what action the town would take with reference to a supply of water for fire and other service. Under this article, it was voted "that the selectmen be authorized to renew the contract for ten years with the " water company at a reduced rate per year. Held, that the contract authorized by the vote did not come within -the provisions of the Pub. Sts. c. 27, § 27 ; and that, by the vote, the town did not incur a debt, within the meaning of the Pub. Sts. c. 29, § 1. Smith v. Dedham, 144 Mass. 177 (1887). 32. If a statute authorizing a town to take land for waterworks requires the town to file in the registry of deeds a description of the land so taken, and provides a remedy for a person injured by the taking, a description filed by the town, which includes land taken on which there is a dam and a mill privilege capable of flowing adjacent land, must include the land flowed, in order to enable the town, in an action of tort by the owner of the land flowed, to justify under the statute, and con- fine such owner to his statutory remedy. Ken- ison V. Arlington, 144 Mass. 456 (1887). 33. If, under a statute authorizing a town to take land for waterworks, and requiring the town to file in the registry of deeds a descrip- tion of the land so taken, the town takes land on which there is a dam and a mill privilege, attached to which is a prescriptive right to flow certain meadows to a certain height, and describes as taken "all the water rights and other privileges and appurtenances " of the land taken, this is a taking and description only of the right to flow to the point to which the owner of the prescriptive right was enti- tled to flow; and, in an action of tort, by the owner of the land flowed, against the town, a special finding by the jury that the town has flowed to a greater extent than the mill-owner had a right to before the taking by the town establishes the right of action. Kenison v. Arlington, 144 Mass. 456 (1887). WAY, PUBLIC AND PRIVATE. I. In General. II. Lay-out of Wats. (a) Generally. (J) Assessment of Damages. (c) Set-off of Benefits. III. Constructing of Statutory Ways; Sidewalks. IV. Repairs and Grading; Surveyors OF Highways. V. Civil Liability of Towns foe De- fects IN Ways. (a) Of the Right of Action. (6) What constitutes a Defect, (c) Where Fault of Plaintiff con- tributes, (rf) Where other Causes contribute, (c) Evidence. (f) Statutory Notices. 1. Generally. 2. Statement of Time, Place, and Cause. VI. Liability of Individuals for De- fects AND Obstructions, Civilly AND Criminally. VII. Discontinuing Public Ways; Dam- ages THEREFOR. VIII. Private Ways and Rights of Pas- sage. I. In General. See Bridge ; Railroad. See also Betterments; By-Laws, pi. 5; Certiorari, pi. 2; Constitutional Law, II. pi. 3; Easement; Estoppel, pi. 10; Horse Railroad; Information; Law and Fact, pi. 8; License; Officer, pi. 1. I. Town ways and private ways laid out under the provisions of the statutes of the Commonwealth are public ways. Davis v. SmUh, 130 Mass. 113 (1881). 1077 WAY, II. 1078 2. The provisions of St. 1846, o. 203, re- enacted in Gen. Sts. o. 43, § 82, concerning the dedication of ways, do not apply to ways es- tablished by prescription. Commonwealth v. Coupe, 128 Mass. 63 (1880); McKenna v. Bos- ton, 131 Mass. 143 (188n. 3. On the issue whether a street in a city had, before St. 1846, c. 203, been dedicated to the public use as a highway and accepted by the city, evidence was offered showing that, in 1825, the city sold a large tract of land, taking back a mortgage to secure a portion of the purchase money; that the purchaser laid out the tract for building pur- poses, and recorded a plan in the registry of deeds, upon which appeared the street in question and other streets; that, in 1828, the city, under an order passed by the city coun- cil, appointing a committee with full powers, released its interest in certain lots covered by the mortgage, and its interest in the street in question and other streets, reserving to itself the right to use the land so released in the same manner as such streets might be used by the proprietors of estates bounding thereon, and providing that these streets should never be encroached upon without the consent of the city; that the committee made a report of their doings to the city council, which was accepted by both branches, in which they stated that they released the security upon the land covered by the streets only upon con- dition that the streets should forever be kept open as public highways; that, in 1831, the city released other land covered by the mort- gage, describing it as bounding upon the street in question; and that the street had always been open and unobstructed, and had been used by the public. Held, that the evidence was admissible, even if the city council had no authority to lay out a highway. McKenna v. Boston, 131 Mass. 143 (1881). 4. No compensation is provided by the Pub. Sts. c. 109, §§ 4, 12, to the owner of the fee of a highway for the use of the same by a tele- graph company. Pierce v. Drew, 136 Mass. 75 (1883). 5. An additional servitude is not imposed by the appropriation of a public highway, un- der the Pub. Sts. c. 109, for the use of a line of electric telegraph, by the erection of poles and wires above the surface of the ground; and the statute is constitutional, although it makes no provision for compensation to the owner of the fee in the highway. W. Allen & C. Allen, J J., dissenting. Pierce v. Drew, 138 Mass. 75 (1883). 6. The term " particular and private ways " in the Colony ordinance of 1641 includes town ways. Butchers' Slaughtering Association v. Boxion, 139 Mass. 290 (1885). 7. A bill in equity cannot be maintained to restrain a gas company from digging up, with- out the consent of the municipal authorities, the surface of the highway in front of the plaintiff's premises for the purpose of laying gas pipes, if the injury caused to the plaintiff is not of such a serious, permanent character that it cannot be adequately compensated in damages. Kenneyx. Consumers' Gas Co., 142 Mass, 417 (1886). 8. In an action, brought in 1884, for cutting down shade trees, it appeared that they were planted by the plaintiff, in 1866 or 1867, in front of his house, and within the limits of the highway, the fee of which was in the town ; and that the defendant was acting under authority from the selectmen of the town. Held, that the provision of the Pub. Sts. c. 54, § 6, relating to " shade ti-ees stand- ing," did not apply; and that there was no conclusive presumption of law that the plain- tiff had a license to plant them. Gaylord v. King, 142 Mass. 495 (1886). 9. A parol license by a town to a person to place a gate on a public way does not include an authority to keep the gate locked, with the key in his possession. Commonwealth v. Carr, 143 Mass. 84 (1886). 10. On the issue whether a town had ac- quired a right of way by prescription in 1883, within the location of a railroad, there was evidence that in 1855, on a petition that a private way leading to the town burial ground be altered by being carried a certain distance to the east, the town voted to grade i the road agreeably to the petition, appropri- ated a sum of money therefor, and appointed the selectmen a committee for the purpose; that in the same year the road was changed so as to pass along and within the location of the railroad, and a fence was moved back ; that from time to time, as the fence around the burial ground needed to be repaired, materials for that purpose were carried over the road ; and that the bodies of a number of paupers were taken over the road for burial. Held, that the evidence was sufficient to sustain the issue. Deerfield v. Connecticut River Railroad, 144 Mass. 325 (1887). II. Lay-out of Wats. (a) Generally. 1. The provisions of the Gen. Sts. c. 43, § 65, requiring a report of the laying out or altering of a town way to be filed in the town clerk's office seven days before a meeting of the voters to take action thereon, are not ap- plicable to ways laid.out by the authorities of a city. Taber v. New Bedford, 135 Mass. 162 (1883). 2. It is no objection to the validity of the laying out of a way by a city, that the lines and measurements of the way are left to the city surveyor by direction of the mayor and aldermen. Taher v. New Bedford, 135 Mass. 162 (1883). 3. If the record of the laying out of a way by a city shows that it was accepted by the two bi-anches of the city council, but fails to show that it was presented to the mayor for his signature, an abutter who had notice of the laying out and of its acceptance, and made no effort to invalidate the proceedings, cannot maintain an action against the city, two years afterwards, to recover the amount of a better- 1079 WAY, n. 1080 ment tax assessed upon him for such laying out. Taber v. Neu) Bedford, 135 Mass. 162 (1883). 4. If private land has been entered upon and possession taken by the selectmen of a town for the purpose of constructing a way, which has been laid out by the selectmen and accepted by the town, a sewer may be con- structed in the way by the selectmen without further notice or proceedings; and it is no ob- jection to the validity of the laying out, that there is no intention to complete the way im- mediately, except as its construction is inci- dental to the building of the sewer. Lawrence V. Nahant, 136 Mass. 477 (1884). 5. The selectmen of a town issued a notice, addressed to J. and H., heirs of the late P., stating that they proposed to lay out a road through certain laud, including " the estate of the late P.," and appointing a time and place to hear all parties interested. This notice was enclosed in an envelope addressed to L., who was the husband of H., and was left at his xesideince in another town by a messenger, and came to his knowledge on the same day. J. was absent from the country at the time of these proceedings. P. died seised of the land over which the proposed way was located, and devised the same to J., who conveyed it to L. by a deed which was not recorded at the time of the proceedings in question. The selectmen had no notice of the conveyance to L. ; and they did not post a notice of their in- tention to lay out the way. On the day before the proposed meeting of the selectmen, L. had a conversation with their chairman in regard to the intended way and the meeting; and, by reason of a misunderstanding on his part as to the quantity of his land taken by the location, he made no objection to the laying out, and said that he should not be present at the meeting. Held, on a bill in equity by L. to restrain the town from occupying his land, that the notice given by the selectmen was sufficient. Lawrence v. Nahant, 136 Mass. 477 (1884). 6. If a city lays out a street of a certain ■width, at a grade higher than that of the ad- joining land, the owner of the adjoining land may maintain an action of tort against the city for damages caused to his land by the act of the agents and servants of the city in placing part of the embankment necessary to support the street upon his land. Mayo v. Springfield, 136 Mass. 10 (1883). 7. A petition that a way be laid out fifty feet wide in a city was presented to the board of mayor and aldermen ; and the usual order of notice was issued and served. An order in- troduced in the board to lay out the way fifty feet wide was lost by a vote of three to three, and then " was laid on the table until the next meeting of the board." Three months later, the city surveyor was instructed to sur- vey a way forty feet wide, and, on his return being made, the board adjudicated that pub- lic necessity and convenience required that the way be laid out forty feet wide, and gave due notice of an intention so to lay out the way. Subsequently a new order, laying out the way fifty feet wide, and giving the same metes and bounds as in the order first men~ tioned, was adopted by the board, concuiTed in by the common council, and approved by the mayor. Held, that the proceedings under the first order were not terminated by its being laid on the table, nor waived by the proceedings relating to the forty-foot way; and that a pei'son whose land was taken by the location of fifty feet, but not by the location of forty feet, could not maintain a writ of certiorari to quash the proceedings laying out the way. Cornell v. Mayor and Aldermen af New Bedford, 138 Mass. 588 (1885). 8. Under the Pub. Sts. c. 112, § 125, au- thorizing a highway or town way to be laid out across a railroad previously constructed, a footway may be laid out. Boston §• Albany Railroad v, Boston, 140 Mass. 87 (1885). 9. If the location of a way refers to a cer- tain plan, and the description in the location and that on the plan differ, but, taking the description and the plan together, the way can be identified with reasonable certainty, the misdescription will not render the laying out of the way void. Gilkey v. Walerlown, 141 Mass. 317 (1886). (b) Assessment of Damages. 1. The owner of land taken for the laying out or altering of a highway is entitled to a jury under Sts. 1870, c. 75, and 1873, c. 261, although he has not claimed damages be- fore the county commissioners; the reasons governing the decision in the case of Brown V. Haverhill, 3 Dane Ab. 263, n6 longer ap- plying. Oilman v. Haverhill, 128 Mass. 36 (1879). 2. Under Gen. Sts. c. 43, § 22, an applica- tion for a jury to revise the judgment of the county commissioners in the assessment of damages, caused by the laying out of a way, must be made within one year from the adop- tion of the final order of location, unless there has been a suit instituted in which the legal effect of the proceedings is drawn in question ; and an order by the county commis- sioners to their clerk, to draw his warrant on the treasurer of the county for the payment of damages to the persons named in it, whose land has been taken by the commissioners in laying out a way, is not an order of location. Chiids V. Franklin, 128 Mass. 97 (1880). 3. County commissioners adjudicated at one meeting the necessity of two highways across a parcel of land, intersecting each other at nearly right angles, laid out one of the ways, and some months afterwards laid out the other. Subsequently, the owner of the land obtained a warrant for a jury, which, by mistake of his counsel, included only the land taken for the first way. Within a year from the laying out of the first way, he ob- tained a new warrant for a jury to estimate his damages for the land taken for both ways. Held, that the issuing of the second warrant was within the power of the county commis- sioners. Warner v. FranUin, 131 Masfe. 348 1 (1881). 1081 WAY, II. 1082 4. At the trial before a sheriff's jury of a petition for the assessment of damages oc- casioned to the petitioner by the taking of his land for a town way, evidence is admis- sible to show the cost of fencing on each side of the way. Stone v. Heatl^, 135 Mass. 561 (1883). 5. A petition to the county commissioners alleged that a town laid out a town way of a certain width across the petitioner's land ; that the land had been entered upon and possession thereof taken for the purpose of constructing the way; that the selectmen of the town awarded tlie petitioner a certain sum for his damages occasioned by the lay- ing out of the way, " which sura is wholly inadequate as payment for his damages in that behalf sustained;" and prayed that a jury might be summoned to determine the matter of the complaint, and award to the petitioner such damages as he was entitled to receive. Held, that the petition was suffi- cient in form. Stone v. Heath, 135 Mass. 561 (1883). 6. It is not necessary to set forth in detail all the elements of the damages claimed, in a petition to county commissioners for a sheriff's jury to assess the damages occasioned to the petitioner by the taking of his land for a town way. Stone v. Heath, 135 Mass. 561 (1883). 7. In 1827 a highway was laid out by the county commissioners. In 1849, the city coun- cil of the city in which the highway was situ- ated passed a resolution defining the line of the street. In 1850, the city presented a petition to the county commissioners repi'esenting that the boundary lines were in dispute, and re- questing that the street might be located anew and the boundary lines established. The county commis.sioners thei-eupon, in 1852, es- tablished the lines, and determined that these lines were the oiiginal location of the sti-eet. An owner of land filed a petition to the county commissioners representing that by the loca- tion anew they had changed the line estab- lished by the location of 1827, and had taken part of his land, and praying for a jury to as- sess his damages. The commissioners refused to order a jury. The landowner then filed a petition to this court for a writ of mandamus to compel the commissioners to issue a war- rant for a jury. After a hearing, the writ was ordered; and a warrant was issued by the commissioners for a jury. The jury changed the line from that established in 1852, and awarded no damages. This verdict was ac- cepted by the court in 1855, and a copy of the verdict was sent to the commissioners, who thereupon passed an order declaring that the highway as altered and described by the verdict be established as a public highway. In 1877, the city passed an order defining and locating the line of the street, carrying the line as established by the jury to the line fixed by the commissioners in 1852. The same landowner filed a petition for a jury to assess his damages for the land so taken. Held, that, for the purpose of showing the line of the street at the time of the taking, the pe- titioner was entitled to put in evidence the proceedings of the commissioners in 1852, the petition and warrant for a jury, the verdict of the jury, and its acceptance; and that the respondent was not entitled to put in evidence the records of the laying out of the way in 1827, the resolution of the city council in 1849, and that portion of the records of the commissioners, in 1852, relocating the line of the street, with evidence tending to show that the line established in 1827, defined in 1849, and relocated in 1852, was identical with that established in 1877. Dean v. Lowell, 135 Mass. 55 (1883). 8. At the trial of a petition for the assess- ment of damages for land taken by a city to widen a street, upon the corner of which and another street there was a block of buildings owned by the petitioner and let to tenants, a portion of which block was taken by the wid- ening, there was evidence that it was the most advantageous and prudent use of the estate to take down the entire remainder of the block an(J erect a new structure upon the estate; and that the petitioner did this as soon as he reasonably could. He was then asked by his counsel how long it was after he took down the building before the new build- ing was in condition to use. Held, that the question was rightly excluded. Boles v. Bos- ton, 136 Mass. 398 (1884). 9. At the trial of a petition for the assess- ment of damages for land taken by a city for the extension of a street, evidence that the land was subject to an easement or restriction is competent. Allen v. Boston, 137 Mass. 319 (1884). 10. At the trial of a petition for the assess- ment of damages for land taken by a city for the extension of a street, an early deed convey- ing the land contained the provision that " no other building shall be erected or built on the lot hereby conveyed, except one of brick or stone, not less than three stories in height, and for a dwelling-house only." The peti- tioner asked the judge to instruct the jury, "that the city cannot have the value of the whole estate reduced by any deductions on ac- count of building restrictions. Such restric- tions, if they have any value, belong to the party by whom they were created, or his repre- sentatives, and if they do not appear and claim them, then the restrictions must be deemed to be waived in favor of the general owner." The judge declined to give this instruction ; and instructed the jury that, in their estimate of the fair market value of the whole estate, they might take into account the effect, if any, of the provision in the deed, as tending to show a cloud upon the title of the estate in question which might diminish its fair market value. Held, that the petitioner had no ground of exception. Allen v. Boston, 137 Mass. 319 (1884). 11. At the trial of a petition for the assess- ment of damages for land taken by a city, for the extension of a street, the jury, in estimat- ing the damages, may take into account fix- tures in a building on the land, as part of the building, and consider them only so far as they enhanced the market value of the estate 1083 WAY, III. 1084 for any purpose for which it might be used. Allen V. Boston, 137 Mass. 319 (1884). 12. The St. of 1883, c. 176, § 1, authorized the city council of a city to lay out a street over tide water, and contained no reference to the Pub. Sts. c. 49. Held, that, by necessary implication, the provisions of this chapter applied, and that, under § 105, on a petition to the Superior Couit by a person whose land was injured by the extension of the street, if the petitioner recovered a less amount than had previously been awarded to him, the city was entitled to its costs. Hamlin v. New Bed- ford, 143 Mass. 192 (1887). 13. On a petition for the assessment of damages sustained by reason of the laying out of a way by a town over the petitioner's laud, the respondent offered to show that the prem- ises in question were, from fifteen to nineteen years before 1886, dedicated, at common law, by the owner thereof to the public, as a public square or park ; that such dedication was then accepted by the public, but not under any statute or by vote of the town ; and that pub- lic use thereof for all purposes of a public park had continued since then to the present time. Held, that the evidence was admissible. Abbott v. Cottage City, 143 Mass. 521 (1887). 14. At the trial of a petition for the assess- ment of damages, under the Pub. Sts. c. 49, § 16, caused to the petitioner's property by the laying out of a street in a city, it appeared that the city constructed a sidewalk in front of the petitioner's land two years after the laying out of the street and before this trial, but six months after a former trial, and fif- teen months after the bringing of the petition. Held, that the petitioner was not entitled to recover, as an independent and substantive ground of damages, one half the cost of con- structing the sidewalk, which he was liable to be assessed for in accordance with law, nor the expense of keeping the sidewalk clear of snow. Cushing v. Boston, 144 Mass. 317 (1887). 15. A.'s land was taken by a city for a street, under the St. of 1871, c. 182, and an award of the damages caused to him was duly made by the city. Within a year after such award, A. prepared a complaint or petition to the county commissioners for an order for a jury to assess his damages, under § 22, signed in his behalf by his counsel, B. B. being iU, C, an attorney in B.'s employ, acting in his behalf, took the petition to the office of the clerk of the commissioners and filed it. At the same time he entered into a recognizance, as required by the Pub. Sts. c. 49, § 35, in the name of the petitioner, and also as surety, which was noted by the clerk on the back of the petition, after the date, as follows: " C. recogs. as pr. & su. in $200." A jury was ordered, and A. failed to prosecute his claim within three months, as required by the Pnb. Sts. c. 49, § 52. Held, that there was sufii- cient evidence of a recognizance; that the act of C. was binding on A. ; and that A. was not entitled to another order for a jury. Mahoney v. County Commissioners, 144 Mass. 459 (1887). (c) Set-off of Benefits. If land is taken to widen a public street, under the Pub. Sts. c. 49, the benefit which may be set off, under § 16, against the dam- ages sustained by a person whose land is taken in part, is not prevented from being special by the fact that the lands on the other side of the street, none of which are taken, are bene- fited in like manner. Abbott v. Cottage Cily, 143 Mass. 521 (1887). III. Constructing op Statutory Wats; Sidewalks. 1. This court will not issue a writ of man- damus to compel county commissioners to construct a town way laid out by them, after refusal of the selectmen of the town to con- struct the same, if a second way between the same termini has been laid out and accepted by the town, by the construction of which the county commissioners, in their answer to the petition for the writ of mandamus, state the public convenience and necessity for a way will be fully satisfied. Hitchcock v. Hampden County Commissioners, 131 Mass. 519 (1881). 2. In November, 1874, a city laid out land for an extension of H. Street. Before said laying out, the city laid out a sewer through the middle portion of the proposed extension, and, as the sewer was filled, its top was lev- elled off by the city, and made passable for driving with carriages over a part of said ex- tension. The city also removed an old wall which partly obstructed the entrance to the extension from C. Street, and placed curved or corner edgestones at the coi-ner of C. Street and the extension, but in the line of and in C. Street; it located a place for a sidewalk on the south side of the extension, and curbed it with cut edgestones for about fourteen feet west of the west line of C. Street and about four feet from a sand-catcher built on the ex- tension ; and it built a paved gutter fi-om C. Street to the sand-catcher, which was a brick structure, under ground, with an opening into the gutter. Within two years after Novem- ber, 1874, the city used the sand-catcher, and cleaned it out twice a year; it altered the sand-catcher, raised the ground of the exten- sion at C. Street and near the sand-catcher, and repaved the surface of the extension where the water ran into the gutter, for a few feet, for the purpose of providing for the surface water and water coming from C. Street and H. Street east of C. Street. Since November, 1874, the extension has been open, passable for carriages for a certain distance, and the public has used it largely for car- riages. Held, that the city, within two years from the laying out, took possession of a part of the land laid out for the extengion of H. Street, for the purpose of constructing the way. Wilcox v. New Bedford, 140 Mass. 570 (1886). 3. The surveyor of highways of a town, by order of the selectmen, began to build a way within two years after it was relocated by the 1085 WAY, IV. 1086 county commissioners, and built a portion of it; but the town never specifically authorized, by an express vote, the building of the way as laid out. The officers of the town, with its acquiescence, proceeded from time to time to complete other parts of the way. At a meet- ing of the town, the return of the county com- missioners was laid before the town, and the selectmen were instructed to obtain estimates of the cost of grading the way " according to the instructions of the county commissioners in their report thereon, and to report to the town at its next town meeting." The select- men did not report to the town until more than eight years afterwards, when the town voted to grant a certain sum to be expended in repairing the way, " not having reference to settling any land damages for widening the same, if any should arise." Held, that the town took possession of the land for the pur- pose of constructing the way, within the two vears required by the Pub. Sts. c. 49, § 88. 'Gilkey v. Watertown, 141 Mass. 317 (1886). Sidewalks. 4. If a person makes a sidewalk about four feet wide in the street in front of his land, marking the outer line by trees, posts, and stones, and at one end the walk touches the line of his land and at the other end is about eight feet from the line of his land, it is error to rule, at the trial of an indictment for ob- structing the highway, that the walk is an illegal structure, and not in accordance with Gen. Sts. c. 45, § 6, but it is a question of fact for the jury whether the walk is an unreasonable obstruction. Commonwealth v. Franklin, 133 Mass. 569 (1882). 5. It cannot be ruled.' as matter of law, that the use of a velocipede upon a sidewalk of a street is necessarily unlawful. Purple v. Greenfield, 138 Mass. 1 (1884). 6. An assessment upon the owner of a lot of land, for building a sidewalk in front of such lot, is not necessarily iinjust and dispropor- tionate because the amount by the linear foot is greater than the amount assessed at the same rate upon an adjoining lot. Dickinson v. Worcester, 138 Mass. 555 (1885). _ 7. Under the Pub. Sts. o. 50, § 22, giving city authorities the power, in their discretion, to construct sidewalks, they may remove a sidewalk bordering on a paved street. Attor- ney General v. Boston, 142 Mass. 200 (1886). IV. Repairs and Grading; Surveyors OF Highways. 1. Under St. 1871, c. 158, as amended by St. 1873, c. 51, providing that the road com- missioners of a town " in matters concerning streets, ways," &c., " shall exclusively have the powers, and be subject to the duties, liabilities, and penalties of selectmen and surveyors of highways," the petition of a land- owner for an assessment of damages occa- sioned by a change of grade in a highway, after the town has accepted the statute and elected road commissioners, should be pre- sented to the commissioners, and not to the selectmen. Walker v. West Boylston, 128 Mass. 550 (1880). 2. Under Gen Sts. c. 43, § 13, county commissioners, in laying out a highway, have no authority to allow a portion of a building to remain in the highway " while the present building stands;" and, after notice to the owner, and failure by him to remove it, it can be removed by the surveyor of highways, under Gen. Sts. c. 44, § 8. Colburn v. Kit- trid(je, 131 Mass. 470 (1881). 3. County commissioners, under the author- ity of a statute, laid out and built a highway and bridge, from one town to another, over a channel which connected a harbor with the sea; the statute providing that the cost of maintaining and repairing the highway and bridge should be borne equally by the two towns. The Commonwealth afterwards built a solid dike across the channel, completely cutting off the harbor from the sea. Subse- quently, the bridge being out of repair, the county commissionei-s, upon the petition of citizens of one of the towns to repair the bridge or to locate a new highway in place of it, located a new highway running near the bridge, and ordered the two towns to build a solid roadway of earth across the channel to take the place of the bridge. The highway was built accordingly, and the bridge was sold by auction by the selectmen of the two towns, and was taken down. Held, in an ac- tion by one of the towns against the other, to recover one half of the expense of repairing the new highway, that, when the bridge was discontinued and replaced by the new high- way, the statute became inoperative; that the rights and duties of the two towns as to the new highway were governed by the Gen. Sts. c. 44, § 1 ; and that the action conld not be maintained. Provincetown v. Truro, 185 Mass. 203 (1883). 4. An order passed by the city council of a city, by which the grade of a street as estab- lished by the city surveyor is accepted, and tlie former established grade is discontinued, is an order for specific repairs, under the Gen. Sts. c. 43, § 59 ; and an abutter, who sustains dam- age by the work done in pursuance of the order, must bring his petition for a jury to assess his damages within one year from the adoption of the order, under the Gen. Sts. c. 43, § 73; and the Gen. Sts. c. 44, §§ 19, 2(5, have no application to the case. Sisson v. New Bedford, 137 Mass. 255 (1884). 5. The omission of the mayor and alder- men of a city to award damages to an abutter on a street, the grade of which has been changed by an order for specific repairs, under the Gen. Sts. c. 43, § 59, is equivalent to a determination that he has sustained no dam- ages, and he is entitled at once to apply for a jury to assess his damages. Sisson v. New Bedford, 137 Mass. 255 (1884). 6. A claim against a city for damages oc- casioned to land by changing the grade of a street cannot be submitted to arbitration un- der the Pub. Sts. c. 188. Oshorn v. Fall Ricer, 140 Mass. 508 (1886). 1087 WAY, V. 1088 7. An order, passed- by the mayor and alder- men of a city, directing the superintendent of streets to cause granite curbing to be laid on the side of a street, is not an order for specific repairs, under the JPub. Sts. c. 49, § 65, so far as the lowering the grade of the street in doing the work is concerned ; and the remedy of an abutter, who sustains damage by such lowering, is- by a petition to the mayor and aldermen for an assessment of his damages, under the Pub. Sts. c. 52, § 15, and not by a petition for a jury, under c. 49, § 79 i and, at the trial of a petition brought under the latter statute, the city is not concluded by an ad- mission in its answer that the order was one for specific repairs. Sullivan v. Fall River, 144 Mass. 579 (1887). Surveyors of Highways. 8. A surveyor of highways, who enters upon private land and removes an accumulation of ice and snow in a watercourse thereon, which has caused the water to overflow and obstruct the highway, is not liable to an action by an owner of the land for injury done to his lower land by reason of the water overflowing the same and washing away the soil, if the acts of the surveyor were the necessary means for the removal of the nuisance, and if he acted with due regard to the safety and protection of the land from needless injury. Johnson v. Dunn, 134 Mass. 522 (1883). 9. If a surveyor of highways judges it to be for the interest of the town to dispose of soil, taken from land within the limits of a high- way for the purpose of lowering the highway, by depositing it on his own land as the best way of clearing the road of useless material, rather than to use it elsewhere on the road, he is not liable to an action by the person who owns the fee of the road at the place where the soil was taken. Upham v. Marsh, 128 Mass. 546 (1880). 10. A person who has been elected a sur- veyor of highways of a town cannot maintain an action against the town for money paid by him, without the direction or knowledge of the' selectmen, for labor upon the highways of the town, before his district has been assigned to him for the year, although a portion of the money was expended judiciously, arid the selectmen sent him an order on the town for that amount, which he returned because it was less than he claimed, and the whole amount paid by him was for work done in the district subsequently assigned to him, and was less than the sum allowed him to be ex- pended in that district. Goddard v. Peters- ham, 136 Mass. 235 (1884). V. Civil Liability of Towns for Defects in Ways. (a) Of the Bight of Action. See Constitutional Law, IL (c), pi. 4. 1. An action against a town for personal injuries caused by a defect in a highway, since St. 1877, c. 234, is not prematurely begun,^ although brought within thirty days after the injury and notice thereof to the town. Harris v. Newbury, 128 Mass. 321 (1880). 2. Whether an action brought under St. 1877, c. 234, § 5, is a local action, not decided. Osgood V. Lynn, 130 Mass. 335 (1880>. 3. A person, whose son was killed and two minor daughters injured by a collision with a post in a highway in a town, testified, in actions against the town, by himself as ad- ministrator of hiS' son and by his daughters, that he went to one of the selectmen in behalf of his daughters and himself, and notified him of the accident; and that he told him "it was hard to have a son killed and daughter? almost killed by such a post." Held, that the question was properly submitted to the jury as to how far such interview was in behalf of the minor daughters. Taylor v. Woburn, 130 Mass. 494 (1881). 4. In an action against a town for personal injuries caused by a defect in S. Street, it ap- peared that S. Street, which had been lon. Hyde Park, 143 Mass. 245 .. . 986 (Smith !).) 130 Mass. 298 444, 811, 1141 Bearse (Commonwealth !;.) 132 Mass. 542 163, 206 Beatty v. Parker, 141 Mass. 523 . . . 628, 629 Beckler (Seavey v.) 128 Mass. 471 ... 101 (Seavey v.) 132 Mass. 203 . 52, 87, 102 Beckwith v. Cheshire Railroad, 143 Mass. . 840 . 438 . 760 . 180 618, 619 . 162 . 64 . 357 . 54 . . 80, 395 440, 443, 444 Belmont (Market National Bank «.) 137 Mass. 407 964, 1137 Bemis v. Caldwell, 143 Mass. 299 ... . 964 Benjamin (Amidon v.) 128 Mass. 534 . . . 626 !). Dockham, 132 Mass. 181 ... . 519 !). Dockham, 134 Mass. 418 . . . 76, 526 Benshimol (United Hebrew Association v.) 130 Mass. 325 . . 216, 238, 253, 937 Benson (Henderson v.) 141 Mass. 218 . 46, 1059 Bent !i. Erie Telegraph Co. 144 Mass. 165 . 56 V. Hubbardston, 138 Mass. 99 . 539, 938, 974, 1138 V. Rogers, 137 Mass. 192 .... 281 Benton v. Boston City Hospital, 140 Mass. 13 707 Bergengren d. Aldrich, 139 Mass. 259 . . 1016 Bergin v. Williams, 138 Mass. 544 . . 236, 400 Berkshire County Comm'rs (Lanesborough !).) 131 Mass. 424 .... 958,963 Berkshire County Savings Bank (Scott d.) 140 Mass. 157 . 407, 408, 410, 432, 499 Berney v. Dinsmore, 141 Mass. 42 ... . 395 Berrenberg v. Boston, 137 Mass. 231 .. . 1097 Besse (Commonwealth !).) 143 Mass. 80 . . 590 Bellamy (Haley v.) 137 Mass. 357 Bell (Patten v.) 141 Mass. 197 . 1). Walsh, 130 Mass. 163 1155 TABLE OF CASES. 1156 Bettinson (Colcordt!.) 131 Mass. 233 ... 696 Beverly (Crowell ».) 134 Mass. 98 .... 378 Bibber (Damon v.) 135 Mass. 458 ... . 1012 (Percy v.) 134 Mass. 404 .... 406 Bickford (Byam v.) 140 Mass. 31 276, 581, 990, 1055 Bickum (Blaisdellu.) 139 Mass. 250 ... 649 Bidwell (Emery v.) 140 Mass. 271 345, 346, 455, 1036 Bigaouette v. Paulet, 184 Mass. 123 .. . 518 Bigelow (Adams v.) 128 Mass. 365 . 599, 1138 (Brooks V.) 142 Mass. 6 184 V. Norris, 139 Mass. 12 ... . 494, 550 V. Norris, 141 Mass. 14 ... . 494, 551 (Perry !>.) 128 Mass. 129 .... 399 V. Sprague, 140 Mass. 425 . 423, 434, 435, 436, 439, 589, 617 V. Union Freight Railroad, 137 Mass. 478 253 Bigelow Carpet Co. (Bryant v.) 131 Mass. 491 245,250,736 (Frazer v.) 141 Mass. 126 .... 577 Bigler (India Ins. Co. u.) 132 Mass. 171 . . 286 Bill (Sliattucku.) 142 Mass. 56 . . 90,444,462 Billings (Ballou v.) 136 Mass. 307 . 235, 585, 902 U.Fairbanks, 136 Mass. 177 ... 620 V. Fairbanks, 139 Mass. 66 .... 620 Binney v. Phoenix Cotton Manuf. Co., 128 Mass. 496 226, 1142 Birch V. Hutchings, 144 Mass. 561 . . 284, 1142 Bird V. Chicago, Iowa, & Nebraska Rail- road, 137 Mass. 428 .. . 241, 1031 (Melvin v.) 131 Mass. 561 . 46, 47, 142, 266 (O'Loughlin v.) 128 Mass. 600 . 1, 2, 47, 207, 588, 800, 949 Birnbaum v. Crowninshield, 137 Mass. 177 431, 604, 736, 789 Bisbee v. Fadden, 140 Mass. 6 ... 754, 975 Bishop V. Globe Co., 135 Mass. 132 . 240, 246, 251, 624, 887 (Mann v.) 136 Mass. 495 .... 219 (Nichols V.) 136 Mass. 349 . . 224, 876 (Todd V.) 136 Mass. 386 . 36, 287, 418, 579, 798, 846 I). Weber, 139 Mass. 411 . . . 790, 1143 Black V. Ridgway, 131 Mass. 80 . . 129, 133 Blackinton v. Blackinton, 141 Mass. 432 . . 823 Blackmer v. Davis, 128 Mass. 538 ... . 212 Blackstone (Aldrich v.) 128 Mass. 148 641, 771 Blaikie (Gale w.) 129 Mass. 206 626 Blair (Breck v.) 129 Mass. 127 . . 87, 762, 1140 Blaisdell v. Ahem, 144 Mass. 393 ... . 180 V. Bickum, 139 Mass. 250 ... . 649 (ChafEee v.) 142 Mass. 538 ... . 865 (Legallee v.) 134 Mass. 473 ... . 461 (Young V.) 138 Mass. 344 . 179, 210, 936 Blake (Aldrich v.) 134 Mass. 582 ... . 684 V. Lowell, 143 Mass. 296 . . . 1094, 1099 (McKim V.) 132 Mass. 343 . . 450, 1025 (McKim V.) 139 Mass. 593 . 92, 271, 401, 414, 416, 577, 1026 V. Ward, 137 Mass. 94 822 Blake Manuf. Co. (Robinson v.) 143 Mass. 628 658 Blamey (Stockwell v.) 129 Mass. 312 . . . 407 Blanchard v. Cooke, 144 Mass. 207 . 230, 371, 372 V. Ferdinand, 132 Mass. 389 ... 815 (Livingston v.) 130 Mass. 341 . . . 764 Blanchette v. Border City Manuf. Co., 143 Mass. 21 666 Blaney (Commonwealth v.) 133 Mass. 571 . 69 Blatchford (PhiUips v.) 137 Mass. 510 758, 760, 761 Bleakie (Thomas v.) 186 Mass. 568 .. . 955 Bliss (Osgood w.) 141 Mass. 474 1125 Blume (Frampton v.) 129 Mass. 152 Boardman v. Cutter, 128 Mass. 388 . (Farnsworth v.) 131 Mass. 115 . Block V. Fitchburg Railroad, 189 Mass. 308 837. Blodgett V. Moore, 141 Mass. 75 .... 1125 Blood (Baker K.) 128 Mass. 543 821 (Commonwealth v.) 141 Mass. 571 . 407, 432, 434, 439, 466, 467, 1049 Wilson, 141 Mass. 25 181 "" . . 303 492 504, 505, 759 V. Gardiner, 131 Mass. 549 ... . 814 Bobsin v. Kingsbury, 138 Mass. 538 . 645, 742 Boles V. Boston, 136 Mass. 398 1082 70, 101, 198 . . 63,434 . 274, 994 ... 765 . . . 1121 . . . 1053 Border City Manuf. Co. (Blanchette v.) 143 Mass. 21 666 Borland v. Boston, 132 Mass. 89 . 958, 967, 1139 Bossidy v. BranniflE, 135 Mass. 290 . . . . 801 Boston (Allen v.) 137 Mass. 319 . . . 1082, 1088 (Attorney General v.) 142 Mass. 200 146, 147, 1085, 1137, 1138, 1141 (Badger v.) 130 Mass. 170 ... . 1041 V. Baldwin, 139 Mass. 315 ... . 589 (Berrenberg v.) 137 Mass. 231 . . . 1097 (Boles V.) 136 Mass. 398 1082 (Borland v.) 132 Mass. 89 . 958, 967, 1139 (Boston & Albany Railroad v.) 140 Mass. 87 1080, 1139 " 959, 1141 Bond (Lyman v.) 130 Mass. 291 . Bonino v. Caledonio, 144 Mass. I Booker (Dahill v.) 140 Mass. 308 Booth (Elkinton v.) 143 Mass. 479 Borden v. Jenks, 140 Mass. 562 . (Newell ».) 128 Mass. 31 ■ (Boston Loan Co. v.) 137 Mass. 332 • (Butchers' Slaughtering & Melting Association v.) 137 Mass. 186 ■ (Butchers' Slaughtering. & Melting Association v.) 139 Mass. 290 370 406, 1077 . . 207 769, 1137 . . 1106 974, 979 . . 623 641, 1091 . . 1103 • (Cambridge v.) 130 Mass. 357 . (Cambridge v.) 137 Mass. 152 ■ (Canterbury v.) 141 Mass. 215 - (Cavanagh v.) 139 Mass. 426 ■ (Clapp V.) 133 Mass. 367 . • (Cronan v.) 136 Mass. 384 . ■ (Cronin v.) 135 Mass. 110 . ■ (Gushing v.) 128 Mass. 330 160, 206, 1137, 1141 ■ (Gushing v.) 144 Mass. 317 . • (Davis V.) 129 Mass. 377 . - (Davis V.) 133 Mass. 103 . ■ (Foster v.) 133 Mass. 143 . • (French v.) 129 Mass. 592 . ■ (Gilbert!!.) 139 Mass. 313 . . (Gleason v.) 144 Mass. 25 . ■ V. Gray, 144 Mass. 53 . . ■ (Hanscom v.) 141 Mass. 242 ■ (Hittinger v.) 139 Mass. 17 ■ (Home Savings Banks.) 131 277 ■ (Johnson v.) 130 Mass. 452 ■ (Knowles v.) 129 Mass. 551 • (Larkin v.) 128 Mass. 521 . ■ (Lewis V.) 130 Mass. 339 . . - (McCarthy v.) 135 Mass. 197 ■ (McDermott«.) 133 Mass. 349 ■ (McDougall V.) 134 Mass. 149 . . - (McKenna v.) 131 Mass. 143 .. . ■ (Marcus v.) 136 Mass. 350 .... - (Massachusetts Society, &c. v.) 142 Mass. 24 962, 1137 - (Minot V.) 142 Mass. 274 . . 147, 1072 • V. Mount Washington, 139 Mass. 15 770, 1137. n-S8 ■ (Nickerson v.) 131 Mass. 307 . 209, 734 . 1083 359, 962 13, 885, 978 . . 1029 . . 1.56 . . 1094 748, 770 60.5, 1109 . . 1094 . . 960 Mass. 856, 964 . 1067 733, 966, 967, 1141 . . . 1106 . . . 1067 161, 978 . 659 . 1101 . 1077 . 902 1157 TABLE OF CASES. 1158 Boston (Para Rubber Shoe Co.».) 189 Mass. 155 , 1071 (Pebbles ti.) 131 Mass. 197 ... . 136 (Peverly v.) 136 Mass. 366 172, 173, 711 (Post t>.) 141 Mass. 189 . . 1093,1099 ( Redemptorist Fathers v.) 129 Mass. 178 957 (Sawyer i».) 144 Mass. 470 . . 750,856 (Scanlanii.) 140Ma8s. 84 . . . .1090 (Slocum V.) 129 Mass. 559 ... . 576 (Steele v.) 128 Mass. 583 .... 977 (Sweeney w.) 128 Mass. 5 .... 725 (Tauntor v.) 131 Mass. 18 .... 768 Tyng V.) 133 Mass. 372 .... 161 (Union Savings Institution v.) 129 Mass. 82 575 (Veale v.] 135 Mass. 187 .... 1089 V. Warwick, 132 Mass. 519 ... 769 Boston Academy of Notre Dame (Nowell v.) 130 Mass. 209 325 Boston & Albany Railroad v. Boston, 140 Mass. 87 1080, 1139 V. Briggs, 132 Mass. 24 ... 263, 469 ( Commonwealth K.) 142 Mass. 146 241, 989 (Clark V.) 128 Mass. 1 721 (Corcoran v.) 133 Mass. 507 14, 457, 707 (Dickie v.) 131 Mass. 516 158, 797, 1140 (Fuller V.) 133 Mass. 491 .... 722 (Gay K.) 141 Mass. 407 . . . 420,1114 (Keefei-.) 142 Mass. 251 .... 720 (Langford v.) 144 Mass. 431 463, 648, 732 (Leary v.) 139 Mass. 580 . . 654, 655 (Mackin t;.) 135 Mass. 201 . . 659, 660 (Murdock v.) 133 Mass. 15 172, 272, 888 (Murdock v.) 137 Mass. 293 ... 839 (Murphy v.) 133 Mass. 121 . . 428, 722 (O'Brien «.) 138 Mass. 387 . ... 660 V. Pearson, 128 Mass. 445 2, 39, 197, 1054, 1055 (Read v.) 140 Mass. 199 . . 642, 643, 666 V. Richardson, 185 Mass. 473 . 251, 269 (Sonieru.) UlMass. 10 712 (Wheelwright!;.) 135 Mass. 225 . . 711 (White v.] 144 Mass. 404 .... 727 (Wright V.) 142 Mass. 296 ... . 725 Boston & Fairhaven Iron Works (Child v.) 137 Mass. 516 243, 1138 V. Montague, 135 Mass. 319 . . 75, 79, 81, 22.% 232, 286 Boston & Lowell Railroad (Commonwealth V.) 134 Mass. 211 ... . 174, 843 (Cooke V.) 1.33 Mass. 185 .... 158 (Forbes v.) 133 Mass. 154 118, 169, 271, 836, 1042 (Green v.) 128 Mass. 221 167, 168, 269, 409, 411, 428, 835 (O'Connor «. ) 135 Mass. 352 714, 722, 723 ■ (Peirce v.) 141 Mass. 481 . . 831, 850 — ^ V, Nashua & Lowell Railroad, 139 Mass. 463 52, 55 (Treat v.) 131 Mass, 371 . . 171, 718 (Yeatonw.) 135 Mass. 418 .... 662 Boston & Maine Railroad (Aigen v.) 132 Mass. 423 169, 710, 836 7 (Brooks w.) 135 Mass. 21 .... 718 (Barnes v.) 130 Mass. 388 ... . 900 (Commonwealthw.) 129 Mass. 500 174,843, 1140 (Commonwealth v.) 133 Mass. 383 174, 529, 530, 843 (Kelley v.) 135 Mass. 448 . . 844, 978 (McKimble v.) 139 Mass. 542 719, 720, 839, 845, 1140 (McKimble u.) 141 Mass. 463 . 724,845 V. Ordway, 140 Mass. 510 . . 404, 410 (Spofford V.) 128 Mass. 826 . . . 170, 837 Boston & Maine Railroad (Walker v.) 128 Mass. 8 659 (Wright!).) 129 Mass. 440 .... 721 Boston & ProTidence Railroad (Carter v.) 139 Mass. 525 834, 1109 (Moreland v.) 141 Mass. 31 ... . 720 Boston, Barre, & Gardner Railroad (Common- wealth i;.) 135 Mass. 550 114, 833, 1112 Boston Belting Co. (Haley ;;.) 140 Mass. 73 .340 Boston Board of Police (Ham v.) 142 Mass. 90 808 Boston City Hospital (Benton v.) 140 Mass. 13 707 Boston, Clinton, &c. Railroad (Julian v.) 128 Mass. 555 317 Boston Cordage Co. (McGee v.) 139 Mass. 445 660 Boston Disinfecting Co. (Train v.) 144 Mass. 523 139, 140, 797 Boston Five Cents Savings Bank (Cleave- land V.) 129 Mass. 27 . 84, 176, 277 ( Kim ins !).) 141 Mass. 33 .... 884 (Pierce v.) 129 Mass. 425 . 66, 316, 575, 881 (Sherwiu!;.) 137 Mass. 444. ... 966 (Underwood !;.) 141 Mass. 805 . . 754, 884 Boston Gas Light Co. (Regan v.) 137 Mass. 37 322, 1112 (Smith i;.) 129 Mass. 318 716 Boston Heel & Leather Co. (Pratt k.) 134 Mass. 300 273,731 Boston, Hoosac Tunnel, & Western Rail- road (Hill B.) 144 Mass. 284 173, 841 Boston Lead Co. (Kelley v.) 128 Mass. 456 659 Boston Loan Co. v. Boston, 187 Mass. 332 . 959, 1141 V. Myers, 143 Mass. 446 . . . .442, 866 (Roosa V.) 182 Mass. 439 .... 403 Boston Machine Co. (American Tube Works V.) 139 Mass. 5 . . 236, 239, 243, 380, 1140, 1141 (Reed w.) 141 Mass. 454 541 Boston Manuf. Co. v. Commonwealth, 144 - Mass. 598 967 Boston Marine Ins. Co. (Burnham b.) 139 Mass. 399 . . 573, 574, 625, 1044, 1137 (Emery v.) 138 Mass. 398 572, 573, 1044 Boston, Mayor, &c. of (Boston Water Power Co. V.) 143 Mass. 546 749 Boston Music Hall v. Cory, 129 Mass. 435 . 240 373, 871 (Currier !).) 135 Mass. 414 .... 707 Boston Police Relief Association (Burbank V.) 144 Mass. 484 115 Boston Safe Deposit & Trust Co. v. Plum- raer, 142 Mass. 257 .. . 300, 1022 Boston Street Commissioners (Gray v.) 188 Mass. 414 960, 1140 (Moors V.) 134 Mass. 431 .... 962 V. Moors, 134 Mass. 431 962 (Pratt V.) 139 Mass. 559 ... . 989, 961 Boston Third National Bank v. Skillings, &c. Lumber Co., 132 Mass. 410 . . 351 Boston Tow-Boat Co. (Johnson v.) 135 Mass. 209 609, 660, 661 Boston Water Power Co. v. Hanlon, 132 Mass. 483 149 V. Mayor and City Council of Boston, 143 Mass. 546 749 (Williams!).) 134 Mass. 406 . . . 326 Bourges (Groustra v.) 141 Mass. 7 . . 421, 599 Bourneuf (Flynn d.) 143 Mass. 277 ... 264 Boutwell (Commonwealth v.) 129 Mass. 124 478 Bouvg V. Cottle, 143 Mass. 310 ... . 72, 971 Bowditch !). Chickering, 139 Mass. 283 . . 597 !). Jordan, 131 Mass. 321 . . . 381, 524 1). New England Life Ins. Co., 141 Mass. 292 243, 552 1159 TABLE OP CASES. 1160 Bowe V. Hunking, 135 Mass. 380 ... . 60S Bowen v. Guild, 130 Mass. 121 17 V. Hoxie, 137 Mass. 527 .. . 1123, 1138 u. Richardson, 133 Mass. 293 .. . 343 11. South Building, 137 Mass. 274 . 81, 400 Bowers (Commonwealth v.) 140 Mass. 483 669, 670 V. Hammond, 139 Mass. 360 ... 459 V. Wood, 143 Mass. 182 108 Bowker v. Bradford, 140 Mass. 521 . 526, 758 V. Belong, 141 Mass. 315 . . . . 24, 483 (O'Day v.) 143 Mass. 59 . . 371, 690, 967 V. Pierce, 130 Mass. 262 .. . 1028, 1034 (Taft V.) 132 Mass. 277 . . 66, 187, 881 Bowles (Cathaway v.) 1.S6 Mass. 54 . . . 454 Bowley (Wigtonu.) 130 Mass. 252. ... 874 Bowman v. Hiller, 130 Mass. 153 .. . 127, 320 Boyce (Swett v.) 134 Mass. 381 . . 65, 762, 777 (Tyler v.) 135 Mass. 558 . . 633, 848, 890, 1119 V. Wheeler, 133 Mass. 554 .. . 433, 755 Boyer (Putnam i'.) 140 Mass. 235 .. . 46, 144 Boylston Bank ( Wood v. ) 129 Mass. 358 29, 89, 98 Boylston Ins. Co. (Jackson Co. v.) 139 Mass. 508 559, 562, 948 Boynton (Mallen v.) 132 Mass. 443 . . 403, 785 (Pettingill v.) 139 Mass. 244 300, 848, 849 Braconier v. Packard, 136 Mass. 50 . . . 935 Bradbury (Hooper w.) 133 Mass. 303 . . .1007 Bradford (Bowker v.) 140 Mass. 521 . 526, 758 (Greenwood v.) 128 Mass. 296 . 582, 1138 V. Monks, 132 Mass. 405 8U Bradlee v. Andrews, 137 Mass. 50 294, 307, 308, 1014, 1139 Bradley v. Brigham, 137 Mass. 545 ... 761 V. Brigham, 144 Mass. 181 . . 454, 763 Bradshaw v. South Boston Railroad, 135 Mass. 407 944 Bradstreet v. Butterfleld, 129 Mass. 339 1024, 1025 Bragg V. Dauielson, 141 Mass. 195 .... 130 Brailey (Commonwealth v.] 134 Mass. 527 . 57, 412 Brainard v. Darling, 132 Mass. 218 ... 293 Brandenburg v. Thorndike, 139 Mass. 102 . 782, 1120 Brannifi (Bossidyw.) 135 Mass. 290 ... 801 Brayman (Commonwealth v.] 136 Mass. 438 394, 528 V. Whitoomb, 134 Mass. 525 . 378, 853, 1142 Breck v. Blair, 129 Mass. 127 . . 87, 762, 1140 Brewster v. Warner, 136 Mass. 57 .... 752 Briant (Commonwealth v.) 142 Mass. 463 . 928 Brie (Edmundson v.) 136 Mass. 189 . 285, 429 Brickett v. Haverhill Aqueduct, 142 Mass. 394 205, 939, 1072, 1073 Bridgewater Iron Co. v. Enterprise Ins. Co., 134 Mass. 433 555 Bridgman v. Bridgman, 138 Mass. 58 . . . 520 Brierly v. Davol Mills, 128 Mass. 291 . . . 386 Briggs (Boston & Albany Railroad v.) 132 Mass. 24 263,469 V. Briggs, 135 Mass. .306 . . . 697, 698 V. Cape Cod Ship Ciinal, 137 Mass. 71 163, 164, 253 (Dudley f.) 141 Mass. 582 .... 792 V. Earl, 139 Mass. 473 110 V. Hervey, 130 Mass. 186 .. . 382, 815 V. Rice, 130 Mass. 50 187 (Wardlew.) 131 Mass. 518 . . . .1037 Brigham (Attorney-General v.) 142 Mass. 248 ^ 355 (Bradley v.) 137 Mass. 545 ... . 761 (Bradley v) 144 Mass. 181 . . 454, 763 V. Fayerweather, 140 Mass. 411 822, 1134 V. Fayerweather, 144 Mass. 48 343, 679 Brigham (Frost v.) 139 Mass. 43 . . V. Home Ins. Co., 131 Mass 319 401, 858 103, 359, 567 V. Lally, 130 Mass. 485 776 (Tyler v.) 143 Mass. 410 . . 871, 690, 695 (Way V.) 138 Mass. 384 .. . 56, 93, 806 Brightman (Brow v.) 136 Mass. 187 .. . 747 (Morris v.) 143 Mass. 149 ... . 745 (Terry K.) 129 Mass. 535 (Terry v.) 132 Mass. 318 (Terry v.) 133 Mass. 536 Brighton Savings Bank v. Sawyer, Mass. 185 Bristol V. Gray, 140 Mass. 59 . . (Phillips V.) 131 Mass. 426 87, 751 . 39 132 129, 856 . 259 • 527 Bristol County Savings Bank v. Keavy, 128 Mass. 298 242, 893, 485 V. Woodward, 137 Mass. 412 .. . 458 British American Assurance Co. (Clement v. ) 141 Mass. 298 . 92, 556, 560, 561, 562, 563, 565, 759 Broadway Bank v. Adams, 130 Mass. 431 . 860 V. Adams, 133 Mass. 170 1004 Brock (Khron v.) 144 Mass. 516 . . Brockton v. Cross, 138 Mass. 297 . (Keith V.) 136 Mass. 119 . . (Paine v.) 138 Mass. 564 . . (Thornell v.) 141 Mass. 151 . Uxbridge, 138 Mass. 292 9,442 . 950 . 1089 . 1090 . 401 770, 774, 900 Brockton Street Railway (Commonwealth v.) 143 Mass. 501 945 Brodie (Loring y.)134 Mass. 453 96, 188, 1004, 1030 Brooke Iron Co. v. O'Brien, 135 Mass. 442 . 878 Brookfield v. Warren, 128 Mass. 287 405, 746, 767 Brookhouse v. Union Railway, 132 Mass. 178 944 Brookline v. Mackintosh, 133 Mass. 215 . . 1064 V. Sherman, 140 Mass. 1 976 (Tileston v.) 134 Mass. 438 . . . . 1068 (Trowbridge v.) 144 Mass. 139 . . 895 Brooks (Ames v.] 143 Mass. 844 .... 1001 V. Bigelow, 142 Mass. 6 184 V. Boston & Maine Railroad, 135 Mass. 21 718 ». Hope, 139 Mass. 351 452 ( Jewett V.) 1.34 Mass. 505 . . . 231, 267, 393, 760 V. Rice, 131 Mass. 408 999 Tobin, 135 Mass. 69 510 V. Whitmore, 139 Mass. 356 V. Whitmore, 142 Mass. 399 Brow V. Brightman, 136 Mass. 187 . Brown (Barker v.) 138 Mass. 340 . V. Brown, 137 Mass. 539 . . (Campbell v.) 129 Mass. 23 . ■ (Commonwealth v.) 130 Mass. 279 1026, 1137, 1140 . . . 1027 . . . 747 . . . 1062 . 299, 1000 362, 998 405, 427, 1128 (Commonwealth v) 136 Mass. 171 . 913 (Commonwealth v.) 141 Mass. 78. . 1046 V. Corey, 134 Mass. 249 .. . 257, 821 • V. Davis, 138 Mass. 468 233 ■ V. Eastern Slate Co., 134 Mass. 590 . 248 • V. Fales, 139 Mass. 21 . . 77, 213, 228, 419 • (Farquhar v.) 132 Mass. 340 ... 73 • V. Fitchburg, 128 Mass. 282 ... 890 ■ (Kenney ti.) 139 Mass. 345 . . 494, 550 ■ V. Ladd, 144.Mass. 310 126 (Lynde v.) 143 Mass. 337 . . 964, 1117 • (Meriam v.) 128 Mass. 391 ... . 828 ■ V. Merrill, 131 Mass. 324 296 • (Mullen V.) 138 Mass. 114 ... . 462 • V. Murdock, 140 Mass. 314 ... . 138 • V. New Bedford Institution for Sav- ings, 137 Mass. 262 ... . 70, 882 ■ (Smith V.) 136 Mass. 416 . . 868, 950 • (Thorne v.) 139 Mass. 35 .... 506 1161 TABLE OF CASES. 1162 Brown (Traders & Mechanics' Ins. Co. v.) 142 Mass. 403 575 ■ (Yeager Milling Co. v.) 128 Mass. 171 404 Browne v. McDonald, 129 Mass. 66 . . 234, 454 Brownell (Poland v.) 131 Mass. 138 . . 386, 481 Browning (Lewis v.) 130 Mass. 173 ... 213 Bruce v. Nickerson, 141 Mass. 403 . . . 391, 392 Bryant v. Bigelow Carpet Co., 131 Mass. 491 245, 250, 736 (Denhamu.) 139 Mass. 110. . 729,796, 1047 V. Tidgewell, 133 Mass. 86 . . 907, 1135 (Wilson V.) 134 Mass. 291 . 262, 525, 539 Buoher v. Fitchburg Railroad, 131 Mass. 156 172, 640, 838 Buck (HackettD.) 128 Mass. 369 .... 446 Backland v. Green, 133 Mass. 421 ... . 38 Buckley (Gerard a.) 137 Mass. 475 . .305,756 Budget Publishing Co. (Dooling v.) 144 Mass. 258 617 Buffinton v. Maxani, 140 Mass. 557 ... 1000 Buffum V. Jones, 144 Mass. 29 . . 397, 484, 545 Bugbee v. Kendrioken, 130 Mass. 437 . . . 488 V. Kendricken, 132 Mass. 349 . . 416, 428 612 Buggee (Draper v.) 133 Mass. 258 ... . 486 Bulgarian Co. v. Merchants' Despatch Co., 135 Mass. 421 217 Bullard (Dunlap v.) 131 Mass. 161 ... . 695 V. Smith, 139 Mass. 492 ... . 493, 943 Burbank v. Boston Police Relief Associ- ation, 144 Mass. 434 115 i V. Chapin, 140 Mass. 123 535 Burchard (Ford v.) 130 Mass. 424 . 74, 91, 223, 889 Burgess (EUenwood v.) 144 Mass. 534 629, 630 (Kemptont).) 136 Mass. 192. ... 369 (Smith v.] 133 Mass. 511 1004 Burgett (Commonwealth v.) 136 Mass. 450 925 Burke v. Colbert, 144 Mass. 160 . . 1127, 1141 V. Dunbar, 128 Mass. 499 ... . 222 V. Kaley, 138 Mass. 464 388 Burlingame v. Foster, 128 Mass. 125 . . 35, 121, 398 Burlingham (Wheeler & Wilson Manuf. Co. w.) 137 Mass. 581 .... 48 Burlington (Commonwealth v.) 136 Mass. 435 747 Bumham v. Boston Marine Ins. Co., 139 Mass. 399 . . 573, 574, 625, 1044, 1137 (Conant v.) 133 Mass. 503 ... . 519 (Demondt).)133Mass.339 . ... 121 (King V.) 129 Mass. 598 ... . 39, 582 Bumham v. Nevins, 144 Mass. 88 ... . 330 (Payson v.) 141 Mass. 547 ... . 330 (Provident Savings Institution v.) 128 UaAs. 458 . . 238, 588, 686, 847 Burns (Cape Ann Bank v.) 129 Mass. 596 . .37, 131, 132 V. Daggett, 141 Mass. 368 .. . 491, 905 V. Lane, 138 Mass. 350 994 Burrell (Gushing v.) 137 Mass. 21 .... 165 Burrill (Smith w.) 131 Mass. 92 427 Burt i). Geary, 128 Mass. 414 807 (Howes V.) 130 Mass. 368 . 275, 514, 542 (Laws w.) 129 Mass, 202 813 Burton v. Frye, 139 Mass. 131 . . 870, 897, 950 (Marple w.) 144Mass. 79 812 Bush (Fernaldw.) 131 Mass. 691 .... 128 V. Moore, 138 Mass. 198 547 Bushman v. Commonwealth, 138 Mass. 607 608 Buswell (Stowell v.) 136 Mass. 340 . Buswell Trimmer Co. i^. Case, 144 Mass. 350 149 389, 390 Butchers & Drovers' Bank v. McDonald, 130 Mass. 264 238 Butchers' Slaughtering & Melting Associ- ation V. Boston, 137 Mass. 186 . 370 , Boston, 139 Mass. 290 . Butler (Cunningham v.) 142 Mass. 47 (Dillaway v.) 135 Mass. 479 . V. Frank, 128 Mass. 29 . . !). Ives, 139 Mass. 202 . . (Maine v.) 130 Mass. 196 . V. Stark, 139 Mass. 19 . . . Butman (Allen v.) 134 Mass. 347 . (Allen V.) 138 Mass. 686 . . Howell, 144 Mass. "~ Butrick v. Tiltou, 141 Mass. 406, 1077 . 350, 544 . 3.39, 480 . 77,751 . 525, 681 . . 218 . . 964 77, 88, 739 .586,864 . . 877 276, 277, 282, 850 Butterfield (Bradstreet v.) 129 Mass. 339 424, 425, 1024, 1025 (Munseyw.) 133 Mass. 492 .... 231 Butterworth (Ashcroft v.) 136 Mass. 511 . 214 (Raymond v.) 139 Mass. 471 260, 375, 586, 1040 V. Western Assurance Co., 132 Mass. 489 . 91, 421, 430, 553, 560, 562, 564, 866, 1137 Butts V. Andrews, 186 Mass. 221 . . 902, 1127 Buxton V. Edwards, 134 Mass. 567 . 76, 635, 762, 764 Byam v. Bickford, 140 Mass. 31 276, 581, 990, 1055 Byington v. Simpson, 184 Mass. 145 . . . 215 V. Simpson, 134 Mass. 169 ... . 31 Byrne v. Massasoit Packing Co., 137 Mass. 318 29, 1048 c. Cabot (Glaspy v.) 135 Mass. 435 .... 993 Caduc (Goodyear Dental Vulcanite Co. v.) 144 Mass. 85 252 Ca£Erey i>. Drugan, 144 Mass. 294 .... 57 Cain V. Rockwell, 132 Mass. 193 .... 86 Caldwell (Bemisw.) 143 Mass. 229 . ... 964 (Lowery v.) 139 Mass. 88 .... 177 ( Western Union Telegraph Co. «. ) 141 Mass. 489 341 Caledonio (Bonino v.) 144 Mass. 299 . . 63, 434 Calkin (Scott w.) 139 Mass. 529 507 Callaghan v. O'Brien, 136 Mass. 378 . 684, 698 Calnan ». Toomey, 129 Mass. 451 ... . 807 Cambridge v. Boston, 130 Mass. 357 .. . 207 V. Boston, 187 Mass. 152 . . 769, 1117 Cambridge (Gay v.) 128 Mass. 387 (Hayes v.) 138 Mass. 461 (Lyon V.) 136 Mass. 419 . (Lyons v.) 131 Mass. 571 (Lyons v.) 132 Mass. 534 (McCabe v.) 134 Mass. 484 (McNulty V.) 130 Mass. 275 . . . 1099 . 1097, 1098 . 1092, 1105 ... 435 . . . 1101 . 1099, 1107 . 1100, 1101, 1104 ... 775 ... 968 Mass. V. Paxton, 144 Mass. 520 . . (Pickering v.) 144 Mass. 244 Cambridge Bank (Watriss v.) 130 343 269 Cambridge Railroad v. Charles River Rail- way, 139 Mass. 454 945 (Gunn v.) 144 Mass. 430 .... 946 1163 TABLE OP CASES. 1164 Cambridge Eailroad (Williamson v.) 144 Mass. 148 385, 411, 946 Cambridge Savings Bank (Cunningham v.) 1-38 Mass. 480 . 604 V. Hyde, 131 Mass. 77 .... 38, 124 Cameron (Cogswell v.) 136 Mass. 518 .. . 54 (Commonwealth v.) 141 Mass. 88 . 924 Campbell v. Baldwin 130 Mass. 199 .. . 635 V. Brown, 129 Mass. 23 . . . 362, 998 (Dexter u.) 1.37 Mass. 198 .... 36 (Gage V.) 131 Mass. 566 . . 384,435, 475 (New Haven & Northampton Co. u.) 128 Mass. 104 . 170, 439, 612, 787, 836 V. Russell, 139 Mass. 278 . 388, 891,439 Canuey (Rowe v.) 139 Mass. 41 . . 409, 729, 731, 1058 Canny (Delory v.) 144 Mass. 445 .. . 615, 709 (Greene v.) 137 Mass. 64 . . 327, 1113 u. Talbot, 132 Mass. 174 . . 176,252,818 Canterbury v. Boston, 141 Mass. 215 .. . 1106 Canton (Hyde Park w.) 130 Mass. 505 . . 772 Cape Ann Bank ti. Burns, 129 Mass. 596. . . 87, 131, 132 Cape Cod Ship Canal (Briggs «.) 137 Mass. 71 163,164,253 Capen (Crawford v.) 132 Mass. 596, n. . 88, 762 V. Duggan, 136 Mass. 501 .... 1039 V. Skinner, 139 Mass. 190 ... . 44 Capron v. Anness, 136 Mass. 271 .. . 422, 789 Carbin (Commonwealth v.) 143 Mass. 124 . 916 Card (Grossman v.) 143 Mass. 152 ... 367 Carew Manuf Co. (Taylor v.) 140 Mass. 150 666 (Taylor v.) 143 Mass. 470 ... . 667 Carleton v. Akron Sewer Pipe Co., 129 Mass. 40 . 56,444,806 (Keyes v.) 141 Mass. 46 1006 (Rollstone National Bank v.) 136 Mass. 226 954 Oarmody (Harris v.) 131 Mass. 51 . . 320,475 (Smith!).) 137 Mass. 126 .... 281 Carney (Hall v.) 140 Mass. 131 83 Carpenter (Home Bank v.) 129 Mass. 1 . 105, 106 V. Page, 144 Mass. 315 . . . 126, 1118 (Quinoy v.) 135 Mass. 102 ... . 862 V. Walker, 140 Mass. 416 .... 473 Carr (Commonwealth v.) 143 Mass. 84 623, 1052, 1078, 1109 V. Hodge, 130 Mass. 55 702 Carroll (Fitzsimmons v.) 128 Mass. 401 . . 176 Carter v. Boston & Providence Railroad, 139 Mass. 525 834, 1109 (Commonwealth v.) 132 Mass. 12 . 206 V. Duggan, 144 Mass. 32 . . . 742, 743 V. Goff, 141 Mass. 123 .... 135, 430 (Kramer v.) 136 Mass. 504 .. . 327, 361 ( Jewett V.) 132 Mass. 336 .. . 31, 482 V. Peak, 138 Mass. 439 . . 753, 938, 1141 V. Phillips, 144 Mass. 100 ... . 906 V. Wabash, St. Louis, & Pacific Rail- road, 137 Mass. 187 861 Carver v. Peck, 131 Mass. 291 ... . 339, 345 Case V. Baldwin, 136 Mass. 90 168 (Bealsw.) 138 Mass. 138 329 (Buswell Trimmer Co. v.) 144 Mass. 360 389, 390 (Haley v.) 142 Mass. 316 656 D. Stevens, 137 Mass. 551 . . . 274,878 Casey (Commonwealth v.) 134 Mass. 194 . 922 V. Weaver, 141 Mass. 280 .. . 628, 778 Cassidy (Andrews v.) 142 Mass. 96 . 811, 1140 ("Cole V.) 138 Mass. 437 483 V. Old Colony Railroad, 141 Mass. 174 831, 1065 Cassier's case, 139 Mass. 458 .... 56, 533 Gassier v. Pales, 139 Mass. 461 534 Cathaway v. Bowles, 136 Mass. 54 ... 454 Cavanagh (Barry «.) 130 Mass. 436 ... 889 Cavanagh v. Boston, 139 Mass. 426 Caverly v. Eastman, 142 Mass. 4 . V. Simpson, 132 Mass.' 462 974, 979 453, 904 . . 337 Cecconi (McLaughlin v.) 141 Mass. 252 . . Central Bank (Dickinson v.) 129 Mass. 279 324 103, 240 Central Congregational Society (Davis v.) 129 Mass. 367 7, 707, 709 Central Mills v. Stewart, 133 Mass. 461 . . 87 Central National Bank v. Williston, 138 Mass. 244 241 Central Shade Roller Co. v. Cushman, 143 Mass. 353 220, 351 Chace ». Chapin, 130 Mjss. 128 . . 68, 104, 998 (Eddy V.) 140 Mass. 471 . . 151, 323, 469, 609, 674 (Nye V.) 139 Mass. 379 ... . 125, 130 Chadwick (Commonwealth v.) 142 Mass. 595 928 V. Davis, 143 Mass. 7 154 Chaffee v. Blaisdell, 142 Mass. 538 ... . 865 Chamberlain v. Lincoln, 129 Mass. 70 . . 245 V. Perry, 138 Mass. 546 476 Chamberlin (Purinton v.) 131 Mass. 589 . 546 (Morse ».) 144 Mass. 406 .... 123 Chandler v. Railroad Commissioners, 141 Mass. 208 45, 1140 V. Lawrence, 128 Mass. 213 . . 160, 824 Chaney(Hoxiew.) 143 Mass. 592 . . 987,988 Chapin (Burbank v.) 140 Mass. 123 ... 636 (Chace v.) 130 Mass. 128 . 68, 104, 998 y. Chapin, 135 Mass. 393 525 V. Freeland, 142 Mass. 383 . . 634, 638 V. Haley, 133 Mass. 127 . . 422, 438, 808 V. Kingsbury, 138 Mass. 194 522, 523, 1139 (Langley v.) 134 Mass. 82 . 192, 193, 261, 280, 429, 733, 966 (Lincoln v.) 132 Mass. 470 ... . 965 (Marble u.) 132 Mass. 226 .... 616 (Potts V.) 133 Mass. 276 482 (Whiter.) 134 Mass. 230 .... 356 Chapman v. Banker & Tradesman Publish- ing Co., 128 Mass. 478 . . 345,346 V. Miller, 128 Mass. 269 . 276, 521, 1139 V. Miller, 130 Mass. 289 685 (Missionary Society v.) 128 Mass. 265 181, 289, 1137 Chappell (Hodgkins v.) 128 Mass. 197 . 386, 405,427 Charles River Railway (Cambridge Rail- road V.) 139 Mass. 454 ... . 946 Charlton (Davis v.) 140 Mass. 422 ... . 1106 Charter (Clarke v.) 128 Mass. 483 . 286y 441, 599 Charter Oak Ins. Co. (Holmes v.) 131 Mass. 64 575 (Pierce v.) 138 Mass. 151 . 41, 400, 423, 668, 577, 753, 789, 1047 Chase (Barnes ».) 128 Mass. 211 .... 107 .— ^ ggg . 542 . 698 V. Chase, 132 Mass. 473 V. Denny, 130 Mass. 566 . (Dearnaley u.) 136 Mass. 288 (Donohueu.) 130 Mass. 137 (Donohue v.) 139 Mass. 407 373, 693, 694 V. Fitz, 132 Mass. 359 . 14, 154, 493, 524 ^^ (Hill u.) 143 Mass. 129 199 V. Horton, 143 Mass. 118 . 408, 433, 486 (Morley I!.) 143Mas8.396 .... 463 (Murray u.) 134 Mass. 92 .... 89 V. Perry, 132 Mass. 582 1112 V. Philadelphia & Reading Railroad, 136 Mass. 347 786 (Randall v.) 133 Mass. 210 321, 383, 429, 1111, 1112 (Wales V.) 139 Mass. 5.38 .... 602 (White V.) 128 Mass. 158 . 52, 399, 583 Chelsea Savings Bank (Powers v.) 129 Mass. 44 582 1165 TABLE OP CASES. 1166 Cheney (Commonwealth v.) 141 Mass. 102 57,60 (Samuel u.) 135 Mass. 278 .... 168 Cheney Bigelow Wire Works v. Sorrell, 142 Mass. 442 224, 1140 Cheshire Bailroad (Beckwith v.) 143 Mass. 68 840 Chesley K. Tompson, 137 Mass. 136 ... 619 Chesman o. Cummings, 142 Mass. 65 . 904, 1022 Clilcago, Burlington , & Quinoy Railroad (lasigi V.) 129 Mass. 46 240, 372, 374 Chicago, Iowa, & Nebraska Railroad (Bird v.] 137 Mass. 428 241, lO.Sl Chiekering (Bowditchw.) 139 Mass. 283 . . 597 Chicopee (Barnes v.) 138 Mass. 67 ... . 1093 (Spellmanu.) 131 Mass. 443 . . .1088 Cliild i;. Boston & Fairhaven Iron Works, 137 Mass. 516 243, 1138 (Clark w.) 136 Mass. 344 . . .577,585 V. Christian Society, 144 Mass. 473 . 748 V. New York & New England Kail- road, 129 Mass. 170 700 Childs V. Anderson, 128 Mass. 108 ... . 626 V. Franklin County, 128 Mass. 97 439, 1080 (Gibbsw.) 143 Mass. 103 865 V. New Haven & Northampton Co., 133 Mass. 253 832 V. New Haven & Northampton Co., 135 Mass. 570 258, 1139 (Peterborough Bank v.) 130 Mass. 519 98, 129, 197, 632 (Peterborough Bank v.) 133 Mass. 248 98, 129, 632, 889 II. Stoddard, 130 Mass. 110 ... . 348 Cliina Ins. Co. (Macy v.) 135 Mass. 328 571, 572 (Taberu.) 131 Mass. 239 .... 571 Ohiovaro (Commonwealth v.) 129 Mass. 489 5 Oliipman u.Fowle, 130 Mass. 352 . . 421,889 Clioate V. Jacobs, 136 Mass. 297 451, 821, 1118 V. Thorndike, 138 Mass. 371 .. . 452 Cliristian Society (Child!).) 144 Mass. 473 . 748 (Gray i>.) 137 Mass. 329 748 Church V. Fowle, 142 Mass. 12 120 (Kites v.] 142 Mass. 586 . . . 581, 1141 Clmrchill (Commonwealth v.) 136 Mass. 148 909 V. Holt, 131 Mass. 67 582 (Williams v.) 137 Mass. 243 ... 653 Cilley v. Fenton, 130 Mass. 323 697 Citizens' National Bank v. Oldham, 136 Mass. 515 863,864 V. Oldham, 142 Mass. 379 ... . 705 Claflin V. Ashton, 128 Mass. 441 .... 298 u. Tilton, 141 Mass. 343 308 Clapp V. Boston, 133 Mass. 367 623 V. Clapp, 137 Mass. 183 729 . V. Herrick, 129 Mass. 292 ... . 673 Clark V. Boston & Albany Railroad, 128 Mass. 1 721 V. Child, 136 Mass. 344 . 577, 585, 860 (Curtis K.) 133 Mass. 509 .... 129 V. Dean, 143 Mass. 292 996 V. Eastern Railroad, 139 Mass. 423 . 726 V. Fontain, 135 Mass. 464 .... 688 V. Fontain, 144 Mass. 287 ... . 691 V. Higgins, 132 Mass. 586 ... . 570 • (Kelleher v.) 135 Mass. 45 .... 863 (Parsons v.) 132 Mass. 569 . . 215, 1009 (Peck V.) 142 Mass. 436 . 271, 389, 408, 415, 428, 1141 (Robbins v.) 129 Mass. 145 ... 53 V. Snule, 137 Mass. 380 654 V. Waltham, 128 Mass. 567 ... 978 V. Watson, 141 Mass. 248 ... . 85 (Williams «.) 140 Mass. 238 ... 323 Clarke v. Charter, 128 Mass. 483 . 286, 441, 599 (Maxwell!).) 139 Mass. 112 ... 586 !). Palmer, 129 Mass. 373 .... 488 Cleaveland v. Boston Five Cents Savings Bank, 129 Mass. 27 . . 84, 176, 277 (Worthen i'.) 129 Mass. 570 . 441, 626 Cleavland (Longley v.) 133 Mass. 256 . 44, 808 Clement V. British American Assurance Co., 141 Mass. 298 92, 656, 561, 562, 563, 565, 759 !). Earle, 130 Mass. 585 n 751 V. Western Union Telegraph Co., 137 Mass. 463 969 Cleveland d. Quilty, 128 Mass. 578 ... 47 Clifford !). Heald, 141 Mass. 322 .... 490 !). Old Colony Railroad, 141 Mass. 564 660 (Thwing V.) 136 Mass. 482 . . 36, 434 Clinton (Lowe w.) 133 Mass. 526 .... 1107 (Lowe !).) 136 Mass. 24 1093 Closson (Whitney D.) 138 Mass. 49. . . .1119 Cobb !). Rice, 128 Mass. 11 373 V. Rice, 130 Mass. 231 101, 351, 362, 374 !). Tirrell, 137 Mass. 143 191 !). Tirrell, 141 Mass. 459 135 Coburn v. Anderson, 131 Mass. 513 ... 1009 (Commonwealth v.) 132 Mass. 555 175, 844 (Davis V.) 128 Mass. 377 387, 637, 1033 (Earle v.) 130 Mass. 696 213 !). Litchfield, 132 Mass. 449 . 260, 268 !). Middlesex Co., 142 Mass. 264 . . 675 Cochran v. Goodell, 131 Mass. 464 445, 580, 685 — (Maxwell!).) 136 Mass. 73 . ... 346 V. Thorndike, 133 Mass. 46 . . . 1119 Coclirane v. Rich, 142 Mass. 15 . . 341, 704 Codman (Allen v.) 139 Mass. 136 645, 646, 790, 990 Coffin V. Adams, 131 Mass. 133 2, 262, 680, 761 (Barnard!).) 138 Mass. 37 .... 31 (Barnard «.) 141 Mass. 37 .... 32 V. Lawrence, 143 Mass. 110 . . . 503 (Lynch v.) 131 Mass. 311 .... 424 Cogswell !). Cameron, 136 Mass. 518 . . 54 Colbert (Burke !>.) 144 Mass. 160 . . 1127, 1141 Colburn v. Jewell, 130 Mass. 182 ... . 445 !). Kittridge, 131 Mass. 470 ... 1086 Colby (Commonwealth!).) 128 Mass. 91 . 610 V. Duncan, 139 Mass. 398 ... . 302 (Smith!).) 136 Mass. 562 . . 214,441 (Wilder!).) 134 Mass. 377 . . . 7.3,82 Colcord I). Bettinson, 131 Mass. 233 .. . 696 !). McDonald, 128 Mass. 470 .. . 271 Cole V. Applebury, 136 Mass. 525 422, 426, 496, 496 V. Cassidy, 138 Mass. 437 ... . 483 !). Eastham, 133 Mass. 65 .... 470 !). Groves, 134 Mass. 471 495, 632, 638, 937 D. Hall, 131 Mass. 88 286 (Hodge !).) 140 Mass. 116 .. . 349, 455 V, Newburyport, 129 Mass. 594 42, 977 Coleman (Robertson v.) 141 Mass. 231 . . 8 (White !).) 130 Mass. 316 ... . 66 CoUett !). Smith, 143 Mass. 473 225 Collier (Commonwealth d.) 134 Mass. 203 385, 394, 918 Collingill !). Haverhill, 128 Mass. 218 . . 315 Collins !). Collins, 140 Mass. 502 ... . 455 (Commonwealth!).) 188 Mass. 483 . 608 (Galvin v.) 128 Mass. 525 . . 147, 1050 1). South Boston Railroad, 142 Mass. 301 715, 726 . V. Sullivan, 135 Mass. 461 ... . 348 • (Warner D.) 135 Mass. 26 . 53,256,855 CoUinson (McNeil v.) 128 Mass. 313 .. . 928 (McNeil !).) 130 Mass. 167 . . 928, 1140 Colt !). Learned, 133 Mass. 409 . 3, 14, 454, 752 Comins !). Turner's Falls Co., 138 Mass. 222 V. Turner's FaUs Co., 140 Mass. 146 434 1167 TABLE OF CASES. 1168 Comins v. Turner's Falls Co., 142 Mass. 443 675, 1060 Commercial Assurance Co, (Batcheller v.) 143 Mass. 495 566 (Eliot Savings Bank v.) 142 Mass. 142 559, 561, 563, 971 Commercial Union Assurance Co. (Kyte v.) 144 Mass. 43 . . 557, 560, 564, 1141 Commonwealtli v. Abbott, 130 Mass. 472 . 615 V. Ackert, 133 Mass. 402 ... . 5 V. Alden, 143 Mass. 113 . 139, 532, 738 V. Allen, 128 Mass. 46 . . 58, 414, 424 V. Allen, 128 Mass. 308 90, 160, 184, 828, 982 • V. Andrews, 132 Mass. 263 • V. Andrews, 143 Mass. 23 - V. Atkins, 136 Mass. 160 . ■ V. Auberton, 133 Mass. 404 - V. Bacon, 135 Mass. 521 . ■ V. Bakeman, 131 Mass. 577 ■ V. Baldwin, 129 Mass. 481 . V. Barber, 143 Mass. 560 . V. Barker, 133 Mass. 399 ■ V. Barnacle, 184 Mass. 215 ■ V. Barnes, 132 Mass. 242 - V. Barnes, 138 Mass. 511 201, 529, 530 . . 916, 917 919 '922,923,1141 589, 972, 1049, 1137 ... 16 . . 4 ... 471 375, 1137, 1139 ... 515 ... 201 913,914,920, • f. Barnes, 140 Mass. 447 .... 924 • v. Bartley, 138 Mass. 181 .... 910 • V. Beals, 133 Mass. 396 59 ■ V. Bean, 137 Mass. 570 423 ■ V. Bearse, 132 Mass. 542 .. . 163, 206 ■ V. Besse, 143 Mass. 80 590 ■ V. Blaney, 133 Mass. 671 69 ■ V. Blood, 141 Mass. 571 . . 407, 432, 434, 439, 466, 467, 1049 . V. Boston & Albany Railroad, 142 Mass. 146 241, 939 ■ V. Boston & Lowell Railroad, 134 Mass. 211 174,843 . V. Boston & Maine Railroad, 129 Mass. 500 174, 843, 1140 ■ V. Boston & Maine Railroad, 133 Mass. 383 174, 629, 530, 843 • V. Boston, Barre, & Gardner Railroad, 135 Mass. 660 .. . 833, 1112, 1141 - (Boston Manuf. Co. v.) 144 Mass. 598 967 - V. Boutwell, 129 Mass. 124 . . . . 478 ■ V. Bowers, 140 Mass. 483 . . 669, 670 - V. Brailey, 134 Mass. 527 .. . 57, 412 ■ V. Brayman, 136 Mass. 438 . 394, 528, 629 - V. Briant, 142 Mass. 463 928 - V. Brockton Street Railway, 143 Mass. 601 946 - V. Brown, 1.30 Mass. 279 . 405, 427, 1128 - V. Brown, 136 Mass. 171 913 - V. Brown, 141 Mass. 78 1046 - V. Burgett, 136 Mass. 450 .... 925 - V. Burlington, 136 Mass. 435 .. . 747 - (Bushman v.) 138 Mass. 507 .. . 608 - V. Cameron, 141 Mass. 83 .... 924 - V. Carbin, 143 Mass. 124. . . 852, 916 - r. Carr, 143 Mass. 84 623, 1046, 1062, 1078 - V. Carter, 132 Mass. 12 206 - V. Casey, 134 Mass. 194 922 - V. Chadwick, 142 Mass. 596 ... 928 - V. Cheney, 141 Mass. 102 .. . 57, 60 - V. Chiovaro, 129 Mass. 489 ... . 6 - V. Churcliill, 136 Mass. 148 ... . 909 - V. Coburn, 132 Mass. 555 . . 175, 844 - V. Colby, 128 Mass. 91 610 - V. Collier, 134 Mass. 203 . 885, 394, 918 - V. Collins, 138 Mass. 483 608 - (Connecticut Ins. Co. v) 133 Mass. 161 209 - u. Coolidge, 128 Mass. 55 .... 972 Commonwealth v. Coolidge, 138 Mass. 193 . 931 V. Cooper, 130 Mass. 286 333, 430, 1042 V. Corkin, 136 Mass. 429 ... . 4 V. Costello, 128 Mass. 88 . V. Costello, 133 Mass. 192 V. Cotton, 138 Mass. 600 . V. Coupe, 128 Mass. 63 . V. Dally, 133 Mass. 577 . V. Dale, 144 Mass. 863 . I). Damon, 136 Mass. 441 V. Darling, 129 Mass. 112 V. Davis, 140 Mass. 485 . V. Day, 138 Mass. 186 . V. Deegan, 138 Mass. 182 V. Desmond, 141 Mass. 200 V. Devlin, 141 Mass. 423 . ■ V. Doherty, 137 Mass. 245 ■ i). Donahoe, 130 Mass. 280 . V. Donahoe, 133 Mass. 407 ■ V. Doyle, 132 Mass. 244 . ■ 1'. Dunan, 128 Mass. 422 . ■ V. Dyer, 128 Mass. 70 . . ■ V. Eggleston, 128 Mass. 408 - V. Este, 140 Mass. 279 . . ■ !-■. Evans, 132 Mass. 11 . - V. Everson, 140 Mass. 434 - V. Farrell, 137 Mass. 579 . - V. Felch, 132 Mass. 22 . . - V. Feldman, 131 Mass. 688 - V. Fenno, 134 Mass. 217 . - V. Fenton, 139 Mass. 195 - V. Ferden, 141 Mass. 28 . - V. Fisher, 138 Mass. 604 . . 1051 922, 923 913, 914 . . 1108 . . 919 . . 644 622, 1130 165, 530 161, 162 . . 617 . . 608 ... 730 4.32, 442, 465, 466, 643, 1046 . . . 1045 ... 49 . . . 1137 . . 94,918 ... 515 ... 630 . 197, 925 . 335, 428 . 207, 669 817, 920, 932 ... 920 . . 319 . 3, 438 . . 161 934, 936 932, 933 (Firemen's Ins. Co. v.) 137 Mass. 80 960 ■ (Fitzgerald v.) 135 Mass. 266 .. . 632 ■ V. Fitzpatrick, 140 Mass. 456 426, 914, 1134 ■ V. Flagg, 136 Mass. 645 468, 531, 1062 • V. Flaherty, 140 Mass. 454 .... 927 ■ V. Flannigan, 137 Mass. 560 . 266, 532 ■ V. Ford, 130 Mass. 64 1129 ■ V. Franklin, 133 Mass. 669 ... . 1086 ■ V. Fuller, 132 Mass. 663 201 • V. Galligan, 144 Mass. 171 . . 921, 922 ■ V. Gaming Implements, 141 Mass. 114 496, 497 . V. Gauvin, 143 Mass. 134 ... . 58 • V. Gibbons, 134 Mass. 197 ... . 923 - V. Gilson, 128 Mass. 426 441 - V. Gormley, 133 Mass. 580 . . 628, 909 ■ V. Goulding, 136 Mass. 662 ... . 405 - V. Gray, 129 Mass. 474 16 ■ V. Green, 138 Mass. 200 ... . 853, 854 ■ V. Hagan, 140 Mass. 289 927 ■ V. Hagenlock, 140 Mass. 125 .. . 60 ■ V. Hall, 128 Mass. 410 136 ■ V. Hall, 142 Mass. 4.54 .... 60, 869 ■ V. Hallahan, 143 Mass. 167 ... . 643 - K. Hamer, 128 Mass. 76 934 ■ V. Hamilton, 129 Mass. 479 ... . 93 ■ V. Hanley, 140 Mass. 457 . 94, 817, 1128 - V. Harkins, 128 Mass. 79 464 - V. Harriman, 134 Mass. 314 ... 210 ■ V. Harrington, 130 Mass. 36 . . 206,320 ■ V. Harris, 131 Mass. 336 846 - V. Hartwell, 128 Mass. 415 .. . 176, 844 - V. Haskell, 140 Mass. 128 817, 1128, 1136 - V. Haskins, 128 Mass. 60 . . 732, 1051 - V. Hayes, 138 Mass. 185 414 - V. Hayes, 140 Mass. 366 5 - V. Heaganey, 1.37 Mass. 574 ... 930 - V. Henderson, 140 Mass. 303 . . 911, 926 - V. Hersey, 144 Mass. 297 . . 931, 1142 - V. Hobbs, 140 Mass. 443 . 800, 1049, 1133 - V. Hogarty, 141 Mass. 106 . . 496, 1049 - V. HoUis, 140 Mass. 436 780 - V. Holmes, 137 Mass. 248 ... . 608 1169 TABLE OF CASES. 1170 Commonwealth v. Hopkins, 133 Mass. 381 310, 527 I V. Housatonic Railroad, 143 Mass. 264 204, 834 V. Howe, 132 Mass. 250 ... . 413, 464 V. Howe, 144 Mass. 144 . 833, 936, 1056, 1138 V. Hughes, 133 Mass. 496 .... 319 V. Intoxicating Liquors, 128 Mass. 72 531, 800, 933 V. Intoxicating Liquors, 130 Mass. 29 590 ' V. Intoxicating Liquors, 135 Mass. 519 855, 909, 933 V. Intoxicating Liquors, 138 Mass. 506 910 V. Intoxicating Liquors, 140 Mass. 287 887, 933, 1138 V. Intoxicating Liquors, 142 Mass. 470 934 V. Ismahl, 134 Mass. 201 . 518, 530, 816 V. Jackson, 132 Mass. 16 . . . 464, 465 V. Jardine, 143 Mass. 567 ... . 62 V. Jeffs, 132 Mass. 5 392 V. Jenkins, 137 Mass. 672 ... . 930 V. Jenks, 188 Mass. 484 ... . 532, 608 (Joan V.) 136 Mass. 162 374 V. Johnson, 137 Mass. 562 ... . 441 V. Jones, 136 Mass, 173 607 V. Jones, 142 Mass. 573 .. . 930, 1140 u. Julius, 143 Mass. 132 928 V. Kane, 143 Mass. 92 924 V. Keating, 133 Mass. 572 ... . 438 V. Keefe, 140 Mass. 301 . . . 911, 1049 V. Keefe, 143 Mass. 467 . V. Keenan, 139 Mass. 193 — V, Keenan, 140 Mass. 481 911 532, 911 669, 1140 50, 730, 801, 11.39 . 924 . 672 59, 530 413, 607 60, 1130 418, 671 . 59 . 911 206, 805 162, 532 . 517 . 804 919 609, 817, 853 . . 606 672, 1141 911, 916, 921 • V. Kelley, 140 Mass. 441 . • v. Kendall, 144 Mass. 357 • V. Kennedy, 131 Mass. 584 ■ V, Kennedy, 135 Mass. 543 V. Kennedy, 136 Mass. 152 • V. Kenneson, 143 Mass. 418 ■ V. Kennon, 130 Mass. 39 ■ V. Kerrissey, 141 Mass. 110 • I). Kinsley, 133 Mass. 578 ■ V. Lagorio, 141 Mass. 81 ■ V. Lavonsair, 132 Mass. 1 • V. Lee, 143 Mass. 100 ■ V. Leighton, 140 Mass. 305 - 0. Leonard, 140 Mass. 473 ■ V. Lester, 129 Mass. 101 . - >!. Lockhardt, 144 Mass. 132 ■ V. Luddy, 143 Mass. 563 ■ V. Luscomb, 130 Mass. 42 - V. Lynch, 138 Mass. 190 .... 801 ■ V. Lynes, 142 Mass. 577 5, 395, 528, 1129 • V. McCarty, 141 Mass. 420 ... . 117 • V. McCormick, 130 Mass. 61 . . . 588 ■ ». McCuUow, 140 Mass. 370 ... 931 • V. McGarry, 135 Mass. 5-53 . . .935 - 0. McGrath, 140 Mass. 296 . . . 803, 820 ■ V. McKiernan, 128 Mass. 414 .. . 908 - V. McMahon, 133 Mass. 394 ... 531 ■ V. Magee, 141 Mass. Ill .... 914 • V. Mahoney, 134 Mass. 220 ... . 912 ■ V. Makely, 131 Mass. 421 ... . 57 • V. Mandeville, 142 Mass. 469 .. . 927 ■ V. Manimon, 136 Mass. 456 .... 470 ■ V. Martin, LSO Mass. 465 . . 537, 1140 - V. Mason, 135 Mass. 555 1132 • V. Matthews, 129 Mass. 485 . . . . 1131 ■ V. Matthews, 129 Mass. 487 ... 912 ■ V. Mead, 140 Mass. 300 918 ■ V. Merriam, 136 Mass. 433 .... 935 ■ (Meserve w.) 137 Mass. 109 478, 1137, 1138 ■ (Milford V.) 144 Mass. 64 . . 952, 1138 Commonwealth v. Moinehan, 140 Mass. 463 1134 ■ V. Moody, 143 Mass. 177 . u. Molter, 142 Mass. 533 . • V. Moore, 130 Mass. 45 . ■ V. Moore, 143 Mass. 136 . ■ V. Moran, 130 Mass. 281 . ■ V. Moriarty, 135 Mass. 540 • V. Morrison, 134 Mass. 189 ■ V. Mosher, 134 Mass. 226 ■ V. Murray, 135 Mass. 530 ■ V. Murray, 138 Mass. 508 • 0. Murray, 144 Mass. 170 • V. Nash, 135 Mass. 541 425, ■ V. Nefus, 135 Mass. 533 . ■ V. Nicliols, 1.34 Mass. 531 ■ V. Nott, 135 Mass. 269 . - f. O'Brien, 134 Mass. 198 • V. O'Donnell, 143 Mass. 178 • V. O'Hearn, 132 Mass. 558 ■ V. O'Leary, 143 Mass. 95 • V. O'Malley, 131 Mass. 423 ■ t'. Osborn Mill, 130 Mass. 33 ■ V. Osgood, 144 Mass. 362 • V. Palmer, 134 Mass. 537 - V. Parker, 130 Mass. 40 . - V. Parker, 140 Mass. 439 ■ V. Parsons, 138 Mass. 189 ■ V. Parsons, 139 Mass. 381 • V. Patterson, 138 Mass. 498 729, 5.32 . 915, 917 155 690, 1055 502, 1128 . 155 421, 731 531, 590 156, 531, 1139 931 802 912,1130 17,417 201, 202 413, 417, 426, 607,802 . 394, 928 . . 916 . . 676 . . 929 . . 515 668, 1138 . . 643 316, 1139 . . 437 . . 49 . 479, 744 . . 728 920, 11.39, 1140, 1142 . 471, 1133 ... 470 . . 737, 788 632,910,912 . .530,971 ... 464 . . 516, 785 . 925, 1137 . 334, 606 ■ y. Pease, 137 Mass. 576 . • y. Perley, 1-30 Mass. 469 . ■ V. Perry, 139 Mass. 198 . . 0. Peto, 136 Mass. 155 . ■ V. Philpot, 130 Mass. 59 . V. Pierce, 130 Mass. 31 . ■ V. Pierce, 138 Mass. 165 . • V. Pomphret, 137 Mass 564 ■ V. Pratt, 132 Mass. 246 . ■ V. Pratt, 137 Mass. 98 334, 335, 422, 532, 680, 816, 881, 883, 1136 ■ V. Preece, 140 Mass. 276 ... . 88, 413 - a. Rafferty, 133 Mass. 574 ... . 917 ■ V. Ramsdell, 130 Mass. 68 ... . 925 ■ V. Ratcliffe, 130 Mass. 36 .... 403 ■ V. Reading Sayings Bank, 129 Mass. 73 141 - V, Reading Savings Bank, 133 Mass. 16 880 - V. Reading Savings Bank, 137 Mass. 431 680, 882 ■ V. Richardson, 142 Mass. 71 71, 416, 471, 806, 976 ■ V. Ricker, 131 Mass. 581 390 V. Roberts, 132 Mass. 267 ... . 526 • V. Rogers, 135 Mass. 636 . . . 932, 1141 ■ V. Rogers, 136 Mass. 158 . . . 1132, 1135 ■ V. Rooney, 142 Mass. 474 .... 915 • V. Roosnell, 143 Mass. 32 . 61, 62, 1141 ■ V. Rourke, 141 Mass. 321 ... 924, 936 ■ V. Rowe, 141 Mass. 79 162 - 0. Roy, 140 Mass. 432 . . -. . . . 161 - V. Ruisseau, 140 Mass. 363 731, 732, 10-52 - V. Ryan, 134 Mass. 223 . . 516, 516, 800 ■ V. Ryan, 136 Mass. 436 ... . 736, 931 ■ y. Salmon, 136 Mass. 431 . . .439,935 - V. Sargent, 129 Mass. 116 . 438, 441, 779 - V. Sawtelle, 141 Mass. 140 ... . 335 - V. Sawyer, 142 Mass. 530 .... - V. Scituate Savings Bank, 137 Mass. 301 - V. Shaw, 134 Mass. 221 - V. Shedd, 140 Mass. 451 . . - V. Sheehan, 143 Mass. 468 . - V. Sinclair, 138 Mass. 493 . - V. Smith, 129 Mass. 104 . . 61 882 . 59 156,517 . 911 913, 926 333. 3-^4 1171 TABLE OF CASES. 1172 Commonwealth v. Smith, 132 Mass. 289 V. Smith, ]38 Mass. 489 V. Smith, 141 Mass. 135 V. Smith, 143 Mass. 169 , V. Snow, 133 Mass. 575 V. Soper, 133 Mass. 393 V. Spear, 143 Mass. 172 V. Sprague, 128 Mass. 75 V. Starr, 144 Mass. 359 V. Stevens, 142 Mass. 457 V. Stevenson, 142 Mass. 466 V. Sullivan, 136 Mass. 170 v. Sallivan, 138 Mass. 191 . 259 , 801 , 671 , 671 . 912 . 779 672, 1135 643, 644 49,587,917,951 890, 928 . . 853 .855,910 ■ V. Swasey , 133 Mass. 538 136, 185, 824, 828 ■ V. Sweeney, 131 Mass. 579 ... . 736 ■ V. Tabor, 138 Mass. 496 926 - V. Taylor, 132 Mass. 261 ... . 3, 393 ■ V. Teevens, 141 Mass. 577 . . 867, 951 ■ V. Teevens, 143 Mass. 210 .... 854 • V. Thyng, 134 Mass. 191 .. . 11.32, 1135 ■ V. Tobias, 141 Mass. 129 . . . 670, 1049 ■ V. Towie, 138 Mass. 490 917 • V. Trider, 143 Mass. 180 . . . 18, 1136 - V. Uhrig, 138 Mass. 492 926 • V. Wachendorf, 141 Mass. 270 . . . 927 • V. Wait, 131 Mass. 417 . . 49, 854, 1063 ■ V. Wallace, 143 Mass. 88 ... . 915, 921 - V. Walsh, 132 Mass. 8 60 - V. Warden, 128 Mass. 52 615 - !). Wardwell, 136 Mass. 164 . . 418, 621 - V. Warren, 143 Mass. 568 705, 804, 1050 V. Washburn, 128 Mass. 421 . . 49, 531 (Washburn v.) 137 Mass. 139 . . . 497 V. Welch, 140 Mass. 372 910 V. Welch, 142 Mass. 473 918 V. Welch, 144 Mass. 356 937 (Wesson «.) 144 Mass. 60 . . 952,1138 t). Whalen, 131 Mass. 419 . . 155, 1131 V. Whelan, 134 Mass. 206 ... 912, 929 V. Whittaker, 131 Mass. 224 ... 382 V. Wood, 142 Mass. 459 u. Worcester, 141 Mass. 58 818, 924, 1128 V. Wright, 137 Mass. 250 . . 644, 1139 V. Wright, 139 Mass. 382 .... 739 V. Wunsch, 129 Mass. 477 ... . 438 V. Young, 135 Mass. 526 . . . 138, 1138 Commonwealth Bank (Talbot v.) 129 Mass. 67 80, 121, 576 Comstock V. Peck, 128 Mass. 231 n. . . 102, 105 Conant v. Burnham, 133 Mass. 503 . . . 519 V. Kent, 130 Mass. 178 287 (Leominster v.) 139 Mass. 384 894, 966, 1063 Concord (Smith v.) 143 Mass. 253 ... . 1075 Conlon V. Eastern Railroad, 135 Mass. 195 . 726 Connable (Wells t).) 138 Mass. 513. . 789,994 Connecticut Ins. Co. v. Commonwealth, 133 Mass. 161 ,. . 209 (Judge B.) 182 Mass. 521 558 (Trabandt v.) 131 Mass. 167 .. . 567 Connecticut River Lumber Co. (Harrigan v.) 129 Mass. 580 .. . 203, 1137, 1140 Connecticut River Railroad (Deerfield v.) 144 Mass. 325 .. . 429, 1078, 1116 (Lawless w.) 136 Mass. 1. . . .652,662 (Randall «.) 132 Mass. 269 . (Riley v.) 135 Mass. 292 . . Connell (Hogle «.) 134 Mass. 150 . V. Reed, 128 Mass. 477 . . Connelly (Fuller v.) 142 Mass. 227 . Conners v. Loker, 134 Mass. 510 . Connor v. Harlan, 130 Mass. 265 . (Hennessey v.) 139 Mass. 120 Conrad v. Abbott, 132 Mass. 330 721 665 495 987 456 527 140 , 217 26 Consumers' Gas Co. (Attorney General v.) 142 Mass. 417 534 (Kenney v.) 142 Mass. 417 343, 350, 1078 Continental Water Meter Co. (Desper v.) 137 Mass. 252 902 Cook V. Cook, 144 Mass. 163 650 w. Gardner, 130 Mass. 313 . , . . 51 D. Gray, 133 Mass. 106 30, 73, 74, 1054 (Gray D.) 135 Mass. 189 . . . .374,949 V. Harrington, 139 Mass. 38 V. Horton, 129 Mass. 527 . . V. Merrifield, 139 Mass. 139 . (Walker v.) 129 Mass. 577 . (Young V.) 144 Mass. Cooke (Blanchard v.) 144 Mass. 207 812 . . 43 . . 144 . . 1038 .617,618 230, 371, 872 u. Boston & Lowell Railroad, 183 Mass. 185 158 Cooley (Horton u.) 135 Mass. 589 . . .442,601 Coolidge (Commonwealth v.) 128 Mass. 55 . 972 (Commonwealth v.) 138 Mass. 198 . 931 V. Dexter, 129 Mass. 167 . . . . 261, 279 V. Ueat, 129 Mass. 146 .... 154, 267 V. Smith, 129 Mass. 554 26 Coombs V. Anderson, 138 Mass. 376 876, 1139, 1141 Cooper (Commonwealth v.) 130 Mass. 285 . 333, 430, 1042 V. Johnson, 143 Mass. 108 ... . 474 Co-operative Homestead Co. (Hartford v.) 128 Mass. 494 247 (Hartford v.) 130 Mass. 447 ... 256 Copeland (Baker v.) 140 Mass. 342 428, 1059, 1144, 1145 (Keith V.) 138 Mass. 303 1015 (National Union Bank v.) 141 Mass. 257 72, 1137 Copley V. New Haven & Northampton Co., 136 Mass. 6 723 Copp V. Williams, 135 Mass. 401 . 200, 417, 703, 740, 752, 1058 Corcoran v. Boston & Albany Railroad, 133 Mass. 507 14, 457, 707 Cordis (Shaw v.) 143 Mass. 443 166 Corey (Brown w.) 134 Mass. 249 . . .257,821 Corkin (Commonwealth v.) 136 Mass. 429 . 4 Cornell v. Mayor and Aldermen of New Bed- ford, 138 Mass. 588 1080 (Phillips V.) 133 Mass. 546 . 91, 387, 431 Corner v. Pratt, 138 Mass. 446 ... . 122, 777 Cory (Boston Music Hall v.) 129 Mass. 435 240, 373, 871 Costelo V. Crowell, 139 Mass. 588 . 392, 393, 430, 479 V. Crowell, 134 Mass. 280 . . 38, 126 Costello (Commonwealth v.) 128 Mass. 88 1051 (Commonwealth v.) 133 Mass. 192 . 922, 928 V. Crowell, 183 Mass. 352 . 387, 390, 414, 427, 429, 431 1083, 1084 42, 986 72, 971 . 913, 914 . 857 261, 279 . . 994 679, 1138, 1141 140 Cottage City (Abbott v.) 143 Mass. 621 V. Edgartown, 134 Mass. 67 . . . Cottle (Bouv^t).) 143 Mass. 310. . . . Cotton (Commonwealth v.) 138 Mass. 500 Couch (Weber w.) 134 Mass. 26 . . . . Couillard (Stockwell v.) 129 Mass. 231 Couilliard v. Eaton, 139 Mass. 105 . . Coughlin li. Gray, 131 Mass. 56 . . County Commissioners, petitioners, Mass. 181 867, 989 petitioners, 143 Mass. 424 . 701, 835, 940 (Greenfield v.) 135 Mass. 566 .. . 958 (Hale ».) 137 Mass. Ill . . . 959, 1141 (Hitchcock u.) 131 Mass. 519 . . .1084 (Lanesborough v.) 131 Mrss. 424 958, 963 (Mahoney v.) 144 Mass. 459 ... 1083 (Mayo V.) 141 Mass. 74 259 1173 TABLE OP CASES. 1174 County Commissioners, (Northborough v.) 138 Mass. 263 1070, 1071 (vSinger Manuf. Co. v.) 139 Mass. 268 961 (Worcester Gas Light Co. ».) 138 Mass. 289 893 Coupe (Commonwealth v.) 128 Mass. 63 1077, 1108 Court Grood Samaritan (Dolan v.) 128 Mass. 437 Covell V. Loud, 135 Mass. 41 . . . Cowan V. Cowan, 139 Mass. 377 . . Cowdrey v. Cowdrey, 131 Mass. 186 V. Woburn, 136 Mass. 409 Cowles V. Dickinson, 140 Mass. 373 , 7, 247, 251 799, 992 . . 313 .316,513 443, 1069, 1070 . . 447 ■ V. Merchants, 140 Mass. 377 395, 432, 1133 " " . . 61 . . 483 . 89, 618, 620, 1131 . . 586 . 85, 434, 642, 973 . . 620 . . 547 . . 764 1024, 1025 . . 306 . . 13 Cowley V. Dobbins, 131 Mass. 327 V. Dobbins, 136 Mass. 401 . (McLaughlin v.) 131 Mass. 70 ■ V. McLaughlin, 137 Mass. 221 ■ V. McLaughlin, 141 Mass. 181 V. Pulsifer, 137 Mass. 392 . Cozzens v. Holt, 136 Mass. 237 . . Crabtree v. Bandall, 133 Mass. 552 . Crafts (Bassett w.) 129 Mass. 513 . V. Hunnewell, 129 Mass. 220 Cram v. Holt, 135 Mass. 46 . . . (Newmarket Bank v.) 131 Mass. 204 444 Crandall(Richi).) 142Mass. 117 .... 25 Crane v. Hyde Park, 135 Mass. 147 ... 194 (Penn. Ins. Co. v.) 134 Mass. 56 . . 128, 438, 609 Crapo (Reed v.) 133 Mass. 201 1057 Crawford v. Capen, 132 Mass. 596 n. . . 88, 762 V. Weston, 131 Mass. 283 221, 222, 795, 1131 Credit Mobilier (Union Pacific Railroad v.) 135 Mass. 367 249 Croacher v. Oesting, 143 Mass. 195 . . . 447, 851 Crocker v. Atwood, 144 Mass. 588 397, 705, 706, 997 (Attorney General v.) 138 Mass. 214 824, 981, 984 V. Dillon, 133 Mass. 91 . 362, 1028, 1030 V. Old Colony Railroad, 137 Mass. 417 240 Crombie v. McGrath, 139 Mass. 550 .. . 125 Cronan v. Boston, 136 Mass. 384 . . 641, 1091 Cronin ». Boston, 135 Mass. 110 1103 V. Highland Street Railway, 144 Mass. 249 Crosby (Lynch v.) 134 Mass. 313 Cross (Brockton v.] 138 Mass. 297 ■ (Perry v.) 132 Mass. 454 . 946, 1140 . 178, 933 . . 950 298, 1142 • (Kimball v.) 136 Mass. 300 . 595, 596, 600 Grossman v. Card, 143 Mass. 152 .... 367 V. Massachusetts Benefit Association, 143 Mass. 435 113 Crowell V. Beverly, 134 Mass. 98 .... 378 (Costelo V.) 134 Mass. 280 .. . 38, 126 (Costelo B.) 139 Mass. 588 . . 392,393, 430, 479 (CosteUo V.) 133 Mass. 352 . . 387, 390, 414, 427, 429, 431 Crowley (Twomey v.) 137 Mass, 184 . . 277, 999 Crowninshield (Birnbaum v.) 137 Mass. 177 431, 604, 736, 789 Cumming v. Gumming, 135 Mass. 386 . . 312 V. Jacobs, 130 Mass. 419 635 Cummings (Chesman v.) 142 Mass. 65 904, 1022 V. Cummings, 128 Mass. 532 ... 510 V. Cummings, 143 Mass, 340 . 357, 521, 1118 (James v.) 132 Mass. 78 . . 213, 377, 405 Cumner (Elwell v.) 136 Mass. 102 . . .494, 550 Cumnock v. Newburyport Savings Institu- tion, 142 Mass. 312 793 CunnifE (Kearns v.) 138 Mass. 434 822, 960, 1120 Cunningham v. Butler, 142 Mass. 47 . . 350, 544 V, Cambridge Savings Bank, 138 Mass. 480 604 V. Hogan, 136 Mass. 407 . . 87, 144, 1040 (Lyon V.) 136 Mass. 532 599 Curley (Morgan v.) 142 Mass. 107 . . . 63, 812 V. Squire, 141 Mass. 509 541 Curnew v. Lee, 143 Mass. 105 629 Curran v. HoUiston, 130 Mass. 272 . . . . 973 (McLanev.) 133 Mass. 531 . ... 510 V. Merchants' Manuf. Co., 130 Mass. 374 659 Currier v. Boston Music Hall, 135 Mass. 414 707 Curtis V. Banker, 136 Mass. 355 ... 14.3, 144 V. Clark, 133 Mass. 509 129 (Morse u.) 140 Mass. 112 681 Gushing v. Boston, 128 Mass. 330 160, 206, 1137, 1141 ». Boston, 144 Mass. 317 1083 V. Burrell, 137 Mass. 21 165 (Fisher v.) 134 Mass. 374 .... 783 V. Nantasket Beach Railroad, 143 Mass. 77 384, 832, 856 Gushman (Central Shade Roller Co. v.) 143 Mass. 353 220, 351 (Eames v.) 135 Mass. 573 .... 778 (Graves v.) 131 Mass. 359 ... . 1144 Cutler V. Ballon, 136 Mass, 337 505 (Hewlett V.) 137 Mass. 285 ... . 71 V. Lennox, 137 Mass. 506 .... 228 Cutter (Boardman v.] 128 Mass. 388 .. . 492 Wood V.) 138 Mass. 149 . . . . ' 885 D. Daggett (Burns !).) 141 Mass, 368 . . .491,905 V. Daggett, 143 Mass. 616 ... . 283 (Florence Machine Co. v.) 135 Mass. 582 270, 1043, 1052 V. Tracy, 128 Mass. 167 847 V. White, 128 Mass. 398 .. . 453, 1024 Dahill V. Booker, 140 Mass. 308 . . . . 274, 994 Dailey v. Westchester Ins. Co., 131 Mass. 173 558, 1141 Daily (Commonwealth v.) 133 Mass. 577 . 919 V. Worcester, 131 Mass. 452 .. . 1092 Dalby v. Stearns, 132 Mass, 230 .... 268 Dale (Commonwealth v.) 144 Mass. 363 . . 644 Dallinger (Rodliff v.) 141 Mass. 1 . . .864, 878 Daltou V. Salem, 131 Mass. 551 1104 V. Salem, 136 Mass. 278 1104 V. Salem, 139 Mass. 91 1108 Daly (Wentworth v.) 136 Mass. 423 . .400, 679 Damon (Commonwealth v.) 136 Mass. 441 622, 1130 V. Bibber, 135 Mass. 458 1012 Damon (Fuller «.) 135 Mass. 586 .... 287 (Hopkins v.) 138 Mass. 65 .... 431 Damrell v. Hartt, 137 Mass. 218 .... 290 Dana v. Bank of the Republic, 132 Mass. 156 183 1175 TABLE OP CASES. 1176 Daniels (Bassett v.) 136 Mass. 547 . . . . 692 V. Lowell, 139 Mass. 56 . . . 728, 1098 V. Pratt, 143 Mass. 216 112, 113, 114, 199, 820, 1001 Danielson (Bragg u.) 141 Mass. 195 . . . 180 Danvers Savings Bank v. Thompson, 130 Mass. 490 860 • !;. Thompson, 133 Mass. 182 Danvir v. Morse, 139 Mass. 823 Darling (Brainard v.) 132 Mass. 218 . . (Commonwealth v.) 129 Mass. 112 860 898 293 165, 530 (Goodwin Bedstead Co. v.) 138 Mass. ... 251 . . 257 ... 195 212 ". ' 359, 962 13, 885, 978 233 Dartmouth (GifEord v.) 129 Mass. 135 Da vies (Bagnall v.) 140 Mass. 76 . Davis (Blackmer v.) 128 Mass. 538 V. Boston, 129 Mass. 377 V. Boston, 133 Mass. 103 -(Brown v.) 138 Mass. 458 - V. Central Congregational Society, 129 Mass. 867 ... . 7, 707, 709 - (Chadwick v.) 143 Mass..7 .... 154 - V. Charlton, 140 Mass. 422 ... . 1106 - V. Coburn, 128 Mass. 377 387, 637, 1033 -(Commonwealth!).) 140 Mass. 485 161,162 - V. England, 141 Mass. 587 . . 120, 401 - V. Gay, 141 Mass. 531 .... 48, 95 ■ (German American Ins. Co. v.) 131 Mass. 316 347 ■ a. German American Ins. Co., 135 Mass. 251 558, 948 - V. Mailey, 134 Mass. 588 .... 298 ■ V. New Bedford, 133 Mass. 549 . . 1067 ■ (Newsome v.) 133 Mass. 343 . 186, 188 • V. New York & New England Rail- road, 143 Mass. 801 834 • V. Old Colony Railroad, 131 Mass. 258 • (Payne v.) 128 Mass. 883 ... . • (Pickens v.] 134 Mass. 252 - (Savage v.) 134 Mass. 401 - V. Sawyer, 133 Mass. 289 - (Sawyer v.) 136 Mass. 239 - (Sherman v.) 187 Mass. 132 - V. Smith, 130 Mass. 113 245 . . 751 . . 1124 . . 448 . . 354 210, 354 448, 703 590, 739, 1076 V. Somerville, 128 Mass. 594 . 610, 1091 '■ V. Sullivan, 141 Mass. 76 .... 371 Davis Sewing Machine Co. v. Stone, 131 Mass. 384 505 Davol Mills (Brierly v.) 128 Mass. 291 . . 386 (Mason v.) 132 Mass. 76 .... 247 Dawson (Graves v.) 130 Mass. 78 .... 645 (Graves v.) 133 Mass. 419 . . 682, 645 Day (Commonwealths) 138 Mass. 186 . . 517 V. Floyd, 180 Mass. 488 .... 1, 454 a. Highland Railway, 135 Mass. 113 641, 944 V. Kinney, 181 Mass. 37 .... 871 " "' . 799,1139 . . 47, 807 ... 996 ... 435 ... 864 . 149, 1082 ... 763 V.) 130 ... 141 154, 216, 235 ... 540 . . 84, 739 ... 611 ... 963 (Wilkie V.) 141 Mass, Dayton (Morse v.) 128 Mass. 451 Dean (Clark v.) 143 Mass. 292 . (Ferguson v.) 132 Mass. 183 (Gray v.) 1.36 Mass. 128 . V. Lowell, 185 Mass. 55 . V. Plunkett, 136 Mass. 195 (Richardson School Fund Mass. 242 .... V. Skiff, 128 Mass. 174 . (Spurr V.) 139 Mass. 84 . (Stearns v.) 129 Mass. 139 V. Toppin, 130 Mass. 517 Deane v. Hathaway, 136 Mass. 129 V. Randolph, 182 Mass. 475 Dearborn (England v.) 141 Mass. 590 V. Mathes, 128 Mass. 194 V. Wellman, 130 Mass. 238 244, 704 420, 462 Dearden (Mount Hope Iron Co. v.) 140 Mass. 430 756, 1059 Dearnaley v. Chase, 136 Mass. 288 ... 698 Decatur v. Walker, 137 Mass. 141 ... . 822 Dedham v. Milton, 186 Mass. 424 . . 769, 773 ( Marsh w.) 137 Mass. 235 .... 979 (Smith V.) 144 Mass. 177 . 51, 976, 980, 1075, 1138 Dedham Savings Institution (Stevens v.) 129 Mass. 547 682 Dee (StapletonK.) 132 Mass. 279 .... 583 Deegan (Commonwealth v.) 138 Mass. 182 . 608 Deehan v. Johnson, 141 Mass. 23 535, 623, 648, 984 Deerfleld v. Connecticut River Railroad, 144 Mass. 325 .... 429, 1078, 1116 Delaney v. Hall, 130 Mass. 524 428 Delano v. Smith, 142 Mass. 490 827 V. Smith Charities, 138 Mass. 63 . . 251 (Towlew.) 144Mass. 96 801 Delong (Bowker v.) 141 Mass. 315 . . 24, 483 Delory v. Canny, 144 Mass. 445 . . 615, 709 Demmon (Atlantic National Bank v.) 139 Mass. 420 401, 697 (McKim V.) 130 Mass. 404 ... . 1025 Demond v. Burnham, 133 Mass. 389 .. . 121 Dempsey (Bascom v.) 143 Mass. 409 ... 991 Denhara v. Bryant, 189 Mass. 110 729, 796, 1047 Denison (Jacobs v.) 141 Mass. 117 ... 704 V. Lincoln, 131 Mass. 236 .. . 7, 815 Dennan v. Gould, 141 Mass. 16 . . . 495, 551 Dennett (Reeve v.) 137 Mass. 315 9, 76, 400, 428, 731 (Reeve v.) 141 Mass. 207 . . 420, 1130 Dennie (Messenger v.) 141 Mass. 885 . 714, 715 V. Smith, 129 Mass. 143 142, 683, 740, 787 V. Williams, 135 Mass. 28 . . 409, 422 Denny (Chase v.) 180 Mass. 566 .... 642 V. Kettell, 135 Mass. 138 ... . 1010 V. Merrifield, 128 Mass. 228 102, 105, 106 Derome v. Vose, 140 Mass. 575 80, 115, 511, 1003 Deshon (Tucker w.) 129 Mass. 559 ... 967 Desmond (Commonwealths.) 141 Mass. 200 730 V. Stebbins, 140 Mass. 339 Desper v. Continental Water Meter Co., 137 Mass. 252 902 D'Este (Haskins v.) 133 Mass. 356 ... 133 Devine v. Wyman, 131 Mass. 73 .... 148 Devlin (Commonwealth v.) 141 Mass. 423 432, 442, 465, 466, 1045 (Morain v.) 132 Mass. 87 .... 536 (Newton v.] 134 Mass. 490 . . 141, 269 Dewey v. Garvey, 180 Mass. 86 .... 191 Dewire v. Bailey, 131 Mass. 169 .... 709 Dewson (Bates v.) 128 Mass. 334 306, 360, 1139 Dexter v. Appleton, 187 Mass. 323 . . 1014 V. Campbell, 187 Mass. 198 ... . 36 (Coolidge V. ) 129 Mass. 167 . 261, 279 V. Episcopal City Mission, 134 Mass. 394 1010 (Luce B. ) 135 Mass. 23 414, 586, 949, 1047 (Jones v.) 130 Mass. 380 .... 764 Dextra (Commonwealth w.) 148 Mass. 28 . 643 Dickason v. Williams, 129 Mass. 182 .. . 683 Dickie v. Boston & Albany Railroad, 131 Mass. 516 .... 168, 797, 1140 Dickinson v. Amherst Water Co., 139 Mass. 210 1071 V. Central Bank, 129 Mass. 279 10.3, 240 (Cowles V.) 140 Mass. 373 .... 447 V. Durfee, 139 Mass. 232 .... 511 V. Metacomet Bank, 130 Mass. 132 69, 638 (Smith v.) 140 Mass. 171 ... 44, 810 V. Talmage, 138 Mass. 249 283, 270, 753 V. Whiting, 141 Mass. 414 ... . 1114 ;;. Worcester, 138 Mass. 555 116, 161, 179, 867, 1085, 1138, 1139, 1141 1177 TABLE OF CASES. 1178 Dietrich v. Northampton, 138 Mass. 14 . . 1089, 1140 Diettrich v. Wolffsohn, 136 Mass. 336 40, 86, 703 niggles (Duckworths.) 139 Mass. 61 . . . 52 Dillon (Crocker v.) 183 Mass. 91 362, 1028, 10.30 (True V.) 138 Mass. 347 796 Dillaway v. Butler, 135 Mass. 479 . . 339, 480 Dineen v. Williams, 138 Mass. 367 ... 108 Dinsmore (Berney K.) 141 Mass. 42 . . . 395 Dion V. Powers, 128 Mass. 192 859 Ditson (White v.) 140 Mass. 351 383, 418, 451, 677, 1026 Divito (Hayes v.) 141 Mass. 233 .... 991 Dix V. Atkins, 128 Mass. 43 384 V. Atkins, 130 Mass. 171 695 (Simpson v.) 131 Mass. 179 275, 286, 382, 686, 847 . . 1026 . . 51 . . 483 . . 512 . . 519 76, 526 . . 270, 559 .... 1034 303, 823, 1035, 1138 150 942 421,611,776 222 510 352 1143 635 49 1116 1045 1068 Doane (McKim v.) 151 Mass. 195 . . Dobbins (Cowley v.) 131 Mass. 327 . (Cowley V.) 136 Mass. 401 . . (Grow II.) 128 Mass. 271 . . Dockham (Benjamin v.) 132 Mass. 181 (Benjamin v.) 134 Mass. 418 . Dodd V. Jones, 137 Mass. 322 .. . V. Winship, 133 Mass. 359 — ^— V. Winship, 144 Mass, 461 V. Witt, 139 Mass. 63 . . Dodge (Alter v.) 140 Mass. 594 . V. Emerson, 131 Mass. 467 (Hanson v.) 134 Mass. 273 (Lynch v.) 130 Mass. 458 V. Morse, 129 Mass. 423 . Doe (Baxter v.] 142 Mass. 658 . V. Erwin, 134 Mass. 90 . Dofner (Rawson v.) 143 Mass. 76 Doggett (Rowell v.) 143 Mass. 483 Doherty (Commonwealth v.) 137 Mass (Hannan a.) 136 Mass. 567 V. Hill, 144 Mass. 465 . . ■ (Roosevelt v.) 129 Mass. 301 899, 245 108 416, 490, 492 37,73,221 . . 907 Dolan (Barrett v.) 130 Mass. 366 V. Court Good Samaritan, 128 Mass. 487 7,247,251 V. Thompson, 129 Mass. 205 .. . 645 Dole V. Keyes, 143 Mass. 237 . 303, 1141, 1142 (Mears u.) 136 Mass. 508 . . . 8,363 V. Wooldredge, 185 Mass. 140 .. . 344 !>. Wooldredge, 142 Mass. 161 . 287, 349, 404, 428, 1059 Dolliver v. Ela, 128 Mass. 657 783 V. Parks, 136 Mass. 499 786 V. St. Joseph Ins. Co., 128 Mass. 315 554 V. St. Joseph Ins. Co., 131 Mass. 39 29, 555, 560, 1138 (Thompson v.) 132 Mass. 103 .. . 799 Domestic Sewing Machine Co. (Frost v.) 133 Mass. 663 23 Donahoe (Commonwealth v.) 130 Mass. 280 49 (Commonwealth v.) 133 Mass. 407 . 1131 Donald.-on (McCowan v.) 128 Mass. 169 . 522 Donnelly v. Fall River, 130 Mass. 115 1103, 1106 V. Fall River, 132 Mass. 299 .. . 1096 V. Fitch, 136 Mass. 5-58 394 Donohue v. Chase, 130 Mass. 137 ... . 696 V. Chase, 139 Mass. 407 . . 373, 693, 694 Donovan (Tate v.) 143 Mass. 590 ... . 907 (Woods.) 132 Mass. 84 66 Doole V. Doole, 144 Mass. 278 .. . 823, 1061 Dooley v. Potter, 140 Mass. 49 587, 690, 694, 849 Dooling V. Budget Publishing Co., 144 Mass. 268 617 Dorr V. Tremont Bank, 128 Mass. 349 . 368, 373, 416, 815 Douglas (Roberts v.) 140 Mass. 129 .. . 1105 Douglass V. Nichols, 133 Mass. 470 . . . . 256 Dove V. Johnson, 141 Mass. 287 .... 1020 V. Torr, 128 Mass. 38 . . 289, 1188, 1139, 1142 Dow (Baldwin v.) 130 Mass. 416 (Jones V.) 142 Mass. 130 Downer v. Whittier, 144 Mass. 448 Downes (Segee t).) 143 Mass. 240 . Downing (O'Hare v.) 130 Mass. 16 DowB V. Swett, 134 Mass. 140 . . Doyle (Commonwealth v.) 132 Mass. 244 (Rowell V.) 131 Mass. 474 .. . . .124,398 506, 507, 789, 792, 1048 . . 189, 578 68, 177, 1042 . . 87, 349, 362, 372 ... 489 94, 918 ... 470 , ... 646 67, 197, 479 ... 486 . 888, 1139, 1141 . . 273, 736 . 797, 1033 968, 969, 1077 . . 84,703 Drinan (Martin v.) 128 Mass. 515 ... . 261 Drugan (Caffrey v.) 144 Mass. 294 ... . 67 Drum V. Drum, 133 Mass. 566 . 37, 88, 131, 1.32 Drury (Milliganw.) 130 Mass. 428. ... 957 (New York & New England Railroad !).) 138 Mass. 167 Drake (Moyle v.) 141 Mass. 238 V. Rice, 130 Mass. 410 Draper v. Buggee, 133 Mass. 258 Dressel (Wright v.) 140 Mass. 147 Dresser (White v.) 135 Mass. 150 Drew (Everett v.) 129 Mass. 150 (Pierce v.) 136 Mass. 76 . V. Streeter, 137 Mass. 460 65 52 792 Duckworth v Diggles, 189 Mass. 51 . Dudley v. Briggs, 141 Mass. 582 . . Duff(Leary v.) 137Mass. 147 825 Duggan (Capen K.) 136 Mass. 501 . . . .1039 (Carter v.] 144 Mass. 32 . . . 742, 743 (Fay V.) 135 Mass. 242 . . 176, 752, 763 (White y.) 140 Mass. 18 956 Dunan (Commonwealth ii.) 128 Mass. 422 . 515 Dunbar (Burke v.) 128 Mass. 499 V. Soule, 129 Mass. 284 222 . 1010, 1140 ... 802 279, 311, 514 216, 530 Duncan (Colby v.) 139 Mass. 398 Dunham v. Dunham, 128 Mass. 84 V. Johnson, 135 Mass. 310 (Kent v.) 142 Mass. 216 ' 182 V. Stockbridge, 133 Mass. 283 . . . 739 Dunlap V. Bullard, 131 Mass. 161 ... . 595 Dunn V. Framingham, 182 Mass. 436 . . 937, 974 (Johnson v.) 134 Mass. 622 ... 9, 1087 (White w.) 134 Mass. 271 . . . 15,896 Durant (Ockershausen v.) 141 Mass. 338 . 389, 877 . 611 177,581 . 461 Dussault (Fogel v.) 141 Mass. 154 ... . 46 Dwelley v. Dwelley, 143 Mass. 509 ... 146 Dwight V. Ludlow Manuf. Co., 128 Mass. 280 Durfee (Dickinson v.) 139 Mass. 232 (Mayhew v.) 138 Mass. 584 (Prescott V.) 131 Mass. 477 . 223, 1141 . . 363 . 386, 486 Dwinell (Sanborn v.) 135 Mass. 236 Dwyer v. Fuller, 144 Mass. 420 . . Dyer (Commonwealth v.) 128 Mass. 70 . . 530 (Mansfield u.) 131 Mass. 200 . . 83,486 (Mansfield v.) 1^3 Mass. 374 445, 447, 682 1179 TABLE OP CASES. 1180 E. I V. Luby, 133 Mass. 543 . . 91, 440, 1037 Eagle Mill (New Salem v.) 138 Mass. 8 . . 674, 737, 819, 974 Eames v. Cushman, 135 Mass. 573 .... 778 «. Snell, 143 Mass. 165 865 Earl (Briggs v.] 139 Mass. 473 110 Earle (Barrie y.) 143 Mass. 1 . .225,402,480, 1060 (Clement v.) 130 Mass. 585 n. . . . 751 V. Coburn, 130 Mass. 596 .... 213 Easdale v. Reynolds, 143 Mass. 126 . . 109, 855 East Cambridge Five Cents Savings Bank (Hubbellu.) 132 Mass. 447 . . 471 Eastern Railroad v. Allen, 136 Mass. 13 . . 19 (Attorney General v.) 137 Mass. 45 829, 984, 1137 (Clark V.) 139 Mass. 423 .... 726 (Conlonv.) 1.35Mass. 195 .... 726 (Gould I). ) 142 Mass. 85 153 (Hamor v.) 133 Mass. 315 ... . 330 (Krulevitz v.) 140 Mass. 573 . . 646, 803 (Krulevitz v. ) 143 Mass. 228 . . 648, 803 V. Loring, 138 Mass. 381 144 (McGeary v.) 135 Mass. 363 .. . 714 (Merrill v.) 139 Mass. 238 726, 839, 1140 (Merrill v.) 139 Mass. 252 . 712, 839, 845 (Phillips V.) 138 Mass. 122 . 331, 332, 828 (Wentworthw.) 143 Mass. 248 . . 727 ( Wy man z).) 128 Mass. 346 . . . 43,832 Eastern Slate Co. (Brown v.) 134 Mass. 590 248 Eastham (Cole v.) 133 Mass. 65 470 Easthampton (Fortin v.) 142 Mass. 486 . . 1099, 1106 (Hill V.) 140 Mass. 381 . 975, 1139, 1142 Easton v. Wareham, 131 Mass. 10 .... 772 Easton Bank v. Smith, 133 Mass. 26 . . . 69 Eastman (Caverly K.) 142 Mass. 4 . . 453,904 V. Simpson, 139 Mass. 348 ... . 370 V. Woronoco Savings Bank, 136 Mass. 208 499 Eaton (Couilliard v.) 139 Mass. 105 .. . 994 V. Fitehburg Railroad, 129 Mass. 364 721 (Hall i>.) 139 Mass. 217 150 (Lincoln v.) 132 Mass. 63 . . . 344, 372 (New England Trust Co. v.) 140 Mass. 532 166, 822, 1035 V. Pacific Bank, 144 Mass. 260 . . 101, 867 (Phiibrook v.) 134 Mass. 398 874, 991, 992 Edds, appellant, 137 Mass. 346 ... . 15, 16 Eddy V. Chace, 140 Mass. 471 151, 323, 469, 609, 674, 790, 797, 817 V. O'Hara, 132 Mass. 56 15, 584, 896, 1038 Edgartown (Cottage City v.) 134 Mass. 67 42,987 Edmands (Hitchings v.) 132 Mass. 338 119, 1138 Edmunds v. Hill, 133 Mass. 445 88, 484, 862, 863, 992 V. Merchants' Transp. Co., 135 Mass. 283 169 Edmundson v. Brie, 136 Mass. 189 . . 285, 429 Edwards (Allen v.) 136 Mass. 138 ... . 307 (Buxton V.) 134 Mass. 567 . 76, 635, 762, 764 (Mansfield v.) 136'Mass. 15 77, 400, 955 (Vitrified Wheel & Emery Co. v.) 135 Mass. 591 816 Egan (Lavery v.) 143 Mass. 389 291, 300, 1139 Eggleston ( Commonwealtli y. 1 128 Mass. 408 197, 925 Egleston (Kneil v.] 140 Mass. 202 ... . 526 Ela (DoUiver v.) 128 Mass. 557 783 Eldridge v. Smith, 144 Mass. 35 . . . 636, 1140 Eliot V. McCormick, 141 Mass. 194 . . . . 875 ».MoCormick,A44Mass. 10 . 204,375, 587, 1061 Eliot National Bank v. Beal, 141 Mass. 566 956 (Whitney v.) 137 Mass. 351 . . 119, 543 Eliot Savings Bank v. Commercial Assur- ance Co., 142 Mass. 142 . . 559, 561, 563, 971 Ellenwood v. Burgess, 144 Mass. 534 . . 629, 630 Elliot V. Barrett, 144 Mass. 256 492 V. Elliot, 133 Mass. 855 42 V. Elliot, 137 Mass. 116 .. . 288, 1119 Elkinton v. Booth, 143 Mass. 479 ... . 765 Ellis V. Atlantic & Pacific Railroad, 134 Mass. 338 43,859 V. Ellis, 133 Mass. 469 1122 V. Fairbanks, 132 Mass. 485 ... 295 Ellison (Goss v.) 136 Mass. 503 857 (Kimball v.) 128 Mass. 41 .... 291 V. New Bedford Savings Bank, 130 Mass. 48 751 Elmer v. Locke, 135 Mass. 675 662 Elms (Morse v.) 131 Mass. 151 583 Elsey V. Odd Fellows' Association, 142 Mass. 224 112, 1139 Elwell V. Cumner, 136 Mass. 102 .. . 494, 560 V. Hinckley, 138 Mass. 225 . . 20, 414, 848 Emerson (Dodge v.) 131 Mass. 467 421, 611, 776 V. Patch, 129 Mass. 299 91 (Swan?;.) 129 Mass. 289 697 Emery v. Batohelder, 132 Mass. 452 . . 196, 461 (Bates y.) 134 Mass. 186 630 V. Bidwell, 140 Mass. 271 . 345, 846, 455, 1036 V. Boston Marine Ins. Co., 138 Mass. 398 572, 573, 1044 V. Seavey, 144 Mass. 403 . . 45, 1188 Emmes v. Feeley, 132 Mass. 346 ... 598, 601 England (Davis v.) 141 Mass. 587 .. . 120, 401 V. Dearborn, 141 Mass. 590 . . . 244, 704 English (Nickerson v.) 142 Mass. 267 . . . 219 Engstrom v. Sherburne, 137 Mass. 153 . 202, 686 Enterprise Ins. Co. (Bridgewaterlron Co. v.) 1.34 Mass. 433 555 Entwistle (Hopedale Machine Co. v.) 133 Mass. 443 222,235 Episcopal City Mission (Dexter v.) 134 Mass. 394 1010 Equitable Assurance Society (Atkins v.) 132 Mass. 395 32,78 Equitable Ins. Co. (Whorf n.) 144 Mass. 68 674, 1139 E. Remington & Sons v. Samana Bay Co., 140 Mass. 494 2-54, 255 Erie Preserving Co. (Lincoln v.) 132 Mass. 129 491 Erie Telegraph Co. (Bent v.) 144 Mass. 165 56 Erwin (Doer.) 134 Mass. 90 635 Estabrook (Mclver v.) 134 Mass. 550 . . . 472 (Turner v.) 129 Mass. 425 ... . 316 Este (Commonwealth v.) 140 Mass. 279 .335, 428 Etter (Preston w.) 140 Mass. 465 192 (Warden v.) 143 Mass. 19 .... 477 Ettridge v. Bassett, 136 Mass. 314 ... . 627 Evans (Commonwealth v.) 132 Mass. 11 207,669 (Fletcher ».).140 Mass. 241. . . .1117 Everett (Bailey v.) 132 Mass. 441 ... . 1104 V. Drew, 129 Mass. i50 . . . 797, 1033 Everson (Commonwealth v.) 140 Mass. 292 . 932 (Commonwealth v.) 140 Mass. 434 . 920 Exchange Bank a. Bank of North America, 132 Mass. 147 97 1181 TABLE OP CASES. 1182 F. Fabens v. Fabens, Ul Mass. 395 . . 1021, 1189 Fadden (Bisbee v.) 140 Masf. 6 . . . . 754, 975 Fairlianks v. Belknap, 135 Mass. 179 .. . 357 (Billings V.) 136 Mass. 177 ... . 620 (Billings V.) 139 Mass. 66 .... 620 (Ellis V.) 132 Mass. 485 295 «. Fitchburg, 132 Mass. 42 . . . 178, 892 V. Lambert, 137 Mass. 373 ... . 107 ■ (Massachusetts General Hospital v.) 129 Mass. 78 536 (Massaehusetts'General Plospital v.) 132 Mass. 414 235, 508, 5.S6 Fairchiia (Whipple v.] 139 Mass. 262 . . . 1017 Fales (Brown v.) 139 Mass. 21 77, 213, 228, 419 (Gassier w.) 139 Mass. 461 .... 534 Fall River (Donnelly v.) 1.30 Mass. 115 . . 1103, 1106 (Donnelly v.) 132 Mass. 299 ... 1096 (Osborn v.)' 140 Mass. 508 . . 52, 1086 V. Eiley, 138 Mass. 336 ... . 202, 742 V. Riley, 140 Mass. 488 . . 202, 742, 855, 1145 (Sullivan v.) 144 Mass. 579 ... . 1087 ( Watuppa Reservoir Co. v.) 134 Mass. 267 1068 Fall Eiver Bank (Hathaway v.) 131 Mass. 14 . 70, 188 Fall River Herald Publishing Co. (Wilson ».) 143 Mass. 581 619 Fall River Publishing Co. (Hurley v.) 138 Mass. 334 617 Fall River Savings Bank (Barnard v.) 135 Mass. 326 318 V. Sullivan, 131 Mass. 537 ... . 696 Falvey v. Faxon, 143 Mass. 284 647 Faneuil Hall Ins. Co. (Reardonw.) 135 Mass. 121 564 Farlow (Greener.) 138 Mass. 146 .... 731 Farnham v. Pierce, 141 Mass. 203 .... 748 Farnsworth v. Boardman, 131 Mass. 115 . 504, 505, 759 (Hooper v.) 128 Mass. 487 148, 594, 1141 - V. Lowery, 134 Mass. 512 Farquhar v. Brown, 132 Mass. 340 . Farrar (Hamilton v.) 128 Mass. 492 (Hamilton v.) 131 Mass. 572 Farrell (Commonwealth v.) 137 Mass. Farrington (Morris v.) 133 Mass. 466 . 435, 992 . . 73 . . 321 67.3, 1137, 1141 , 579 . 920 1, 14, 438, 495 Farwell v. Raddin, 129 Mass. 7 106 Faulkner v. Hyraan, 142 Mass. 53 ... . 544 Faxon (Falvey K.) 143 Mass, 284 .... 647 Fay V. Duggan, 135 Mass. 242 . 176, 752, 763, 863 V. Guynon, 131 Mass. 31 2, 267, 385, 1128 V. Harlan, 128 Mass. 244 . . . 403, 1131 (Howard v.) 138 Mass. 104 ... . 1000 Fayerweather (Brigham v.) 140 Mass. 411 822, 1134 (Brigham v.) 144 Mass. 48 . . . 343, 679 Fears v. Story, 131 Mass. 47 489 Feeley (Emmes v.) 132 Mass. 346 .. . 598, 601 (Newton w.) 130 Mass. 12 . . 771,1141 Felch (Commonwealth v.) 132 Mass. 22 . . 3 Peldman (Commonwealth v.) 131 Mass. 588 319 Fellows (Perkins I'.) 136 Mass. 294 . . . 4.57 Fels • V. Smith, 130 Mass. 376 - V. Smith, 130 Mass. 378 . - (Smith V.) 131 Mass. 20 . ■ V. Smith, 131 Mass. 363 . • V. Spaulding, 141 Mass. 89 , Raymond, 134 Mass. 376 . . 1118 .407,456 . . 461 . . 1038 . 357, 540 . . 48 Fels V. Raymond 139 Mass. 98 ... . 579, 732 Felton V. Gregory, 130 Mass. 176 ... . 81 Fennessy v. Spofford, 144 Mass. 22 . . 410, 996 Fenno (Commonwealth v.) 134 Mass. 217 3, 438 (Wonson;;.) 129 Mass. 405. ... 901 Fenton (Cilleyt).) 130 Mass. 323 .... 697 (Commonwealths.) 139 Mass. 195 . 161 0. Lord, 128 Mass. 466 . . 40, 526, 752 (Torrey a.) 130Mass.329 .... 132 V. Torrey, 183 Mass. 138 ... . 7, 696 Ferden (Commonwealth v.] 141 Mass. 28 9-34, 936 Ferdinand (Blanchard v.) 132 Mass. 389 . . 815 Ferguson v. Dean, 1-32 Mass. 183 ... . 435 (Litchfield v. ) 141 Mass. 97 152, 277, 310, 820, 991 Fernald v. Bush, 131 Mass. 591 128 Ferren v. Old Colony Railroad, 143 Mass. 197 657 Ferry (Slmrtleffi).) 138 Mass. 259 . ... 380 Field (Leonard v.) 136 Mass. 125 ... . 425 Finnegan (Thayer v.) 134 Mass. 62 304, 309, 449 Firemen's Ins. Co. v. Commonwealth, 137 Mass. 80 960 First National Bank of Cambridge (Wa- trissK.) 130 Mass. 343 .... 269 First National Bank of Easton v. Smith, 133 Mass. 26 69 First National Bank of Gloucester (Pew v.) 130 Mass. 891 96 First National Bank of Lynn v. Smith, 132 Mass. 227 32, 97 First National Bank of Peterborough v. Childs, 130 Mass. 519 .. . 98, 197 V. Childs, 133 Mass. 248 98 First National Ins. Co. v. Salisbury, 130 Mass. 303 360 Fish y. Gates, 133 Mass. 441 . . . 81,752,762 Fisher (Commonwealth w.) 138 Mass. 504 . 932, 933 V. Gushing, 134 Mass. 374 ... . 733 V. New York & New England Rail- road, 135 Mass. 107 818, 829, 937, 989, 1112 (Stevens v.) 144 Mass. 114 ... . 1024 Fisk (Warfieldr.) 136 Mass. 219 .... 688 Fiske V. Joy, 141 Mass. 311 229 (McCormick v.) 138 Mass. 379 . . 375 (Muhlig V.) 131 Mass. 110 . 91, 262, 268, 277 (Somerville v.) 137 Mass. 91 . . . 374 (Taft V.) 140 Mass. 250 818 Fitch (Donnelly v.) 136 Mass. 558 ... . 394 (Manning v.) 138 Mass. 273 . 233, 1139 Fitchburg v. Ashby, 132 Mass. 495 . . . . 768 V. Athol, 130 Mass. 370 768 (Brown v.) 128 Mass. 282 ... . 890 (Fairbanks v.) 132 Mass. 42 . 178, 892 (Sheehan v.) 131 Mass. 523 378, 891, 892 (Snow V.) 136 Mass. 179 893 (Snow «.) 136 Mass. 183 893 Fitchburg Railroad (Attorney General w.) 142 Mass. 40 834 (Block ti.) 139 Mass. 308 .... 837 (Bucher v.) 131 Mass. 156 . 172, 640, 838 (Eaton u.) 129 Mass. 364 721 (Fitzpatrick v.] 128 Mass. 13 . . . 713 (Forbes v.) 133 Mass. 154 ... . 992 (GertzD.) 137Mass. 77 . . .1135,1136 (Holden v.) 129 Mass. 268 ... . 651 (Leonard v.) 143 Mass. 307 ... 842 (Massachusetts Loan Co. v.) 143 Mass. 318 118 1183 TABLE OP CASES. 1184 Fitchburg Railroad (Murray v.) 130 Mass. 99 866, 988, 1137 V. New Haven & Northampton Co., 134 Maes. 547 834 V. Page, 131 Mass 391 611 (Snow V.) 136 Mass. 552 .... 719 (Tully V.) 134 Mass. 499 . . 273, 412, 589, 612, 710, 725 (White V.) 136 Mass. 321 .. . 719, 839 Fitchburg Savings Bank v. Torrey, 134 Mass. 239 954 Fitz (Chase v.) 132 Mass. 359 . 14, 154, 493, 524 (Patten v.) 138 Mass. 456 ... . 263 Fitzgerald v. Allen, 128 Mass. 232 ... . 74 V. Commonwealth, ljJ5 Mass. 266 . 532 V. Libby, 142 Mass. 235 679 (Seaveru,> 141 Mass. 401 .... 782 Fitzpatrick (Commonwealth v.) 140 Mass. 455 426, 914, 1134 V. Fitchburg Eailroad, 128 Mass. 13 713 (Mahoneyw.) 133 Mass 151 .. . 120 Fitzsimmons v. Carroll, 128 Mass. 401 176, 1088 Flagg (Commonwealth v.) 135 Mass. 545 . 468, 531, 1052 V. Hudson, 142 Mass. 280 . . 1090, 1095 V. Mason, 141 Mass. 64 . . . 153, 408 (Yarter v.) 143 Mass. 280 ... . 497 Flaherty (Commonwealth y.) 140 Mass. 454 927 Flanders (Holmes v.) 134 Mass. 147 .. . 403 w. Norwood, 141 Mass. 17 .... 1093 (Smith K.) 129 Mass. 322 . .• 222,576 Flannigan (Commonwealth v.) 137 Mass. 560 266,532 Fleck V. Union Railway, 134 Mass. 480 172, 718 Fletcher, appellant, 136 Mass. 340 . . 549, 1140 u. Evans, 140 Mass. 241 1117 V. Powers, 131 Mass. 333 91, 384, 701, 1139 (Putney v.) 140 Mass. 596 ... . 822 V. Reed, 131 Mass, 312 .. . 373, 760 Flint V. Valpey, 130 Mass. 385 467 Florence Machine Co. v. Daggett, 135 Mass. 582 270, 816, 1043, 1052 Floyd (Day v.) 130 Mass. 488 .... 1, 454 V. Storrs, 144 Mass. 56 905 V. Sugden, 134 Mass. 563 ... . 651 V. Tewksbury, 129 Mass. 362 .. . 847 Flynn v. Bourneuf, 143 Mass. 277 ... . 266 V. Salem, 134 Mass. 351 659 (Walker M.) 130 Mass. 151 . ... 403 Fogel V. Dussault, 141 Mass. 154 .. . 46, 797 Fogg K. Minis, 138 Mass. 443 875 Foley V. Haverhill, 144 Mass. 352 . 116, 117, 179 Folger V. Washburn, 137 Mass. 60 . . 64-5, 796 Follansbee w. O'Reilly, 135 Mass. 80 . . . 35 Folsom V. Grant, 136 Mass. 493 392 Fontain (Clark v.) 135 Mass. 464 ... . 688 (Clark V.) 144 Mass. 287 .... 691 Foote (Jones v.) 137 Mass. 543 1015 V. Smith, 136 Mass. 92 36 Forbes v. Boston & Lowell Eailroad, 133 Mass. 154 . 118, 169, 271, 836, 1042 V. Fitchburg Railroad, 133 Mass. 154 992 V. Lothrop, 137 Mass. 523 ... . 1006 Ford V. Burehard, 130 Mass. 424 74, 91, 223, 889 (Commonwealth v.) 130 Mass. 64 1129 «. Ford, 143 Mass. 577 . . . 314,1138 Forster v. Forster, 129 Mass. 559 . . 206, 207 Fortin v. Easthampton. 142 Mass. 486 1099, 1106 Foster (Baldwin v.) 138 Mass. 449 ... . 520 V. Boston, 133 Mass. 143 .. . . 1029 (Burlingaraew.) 128 Mass. 125 85, 121,31)8 V. Foster, 130 Mass. 189 56, 311, 443, 807 V. Foster, 133 Mass. 179 1005 V. Foster, 134 Mass. 120 356 (Goodrich v.) 131 Mass. 217 .. . 140 V. Leland, 141 Mass. 187 . 514,850, 1120 V. Morse, 132 Mass. 354 207 Fosteru. Park Commissioners, 131 Mass. 225 40, 749 V. Park Commissioners, 133 Mass. 321 205, 749, 1139 (Taylor v.) 132 Mass. 30 .... 635 (WillcoxM.) 132 Mass. 320 . ... 347 V. Woodward, 141 Mass. 160 . 264, 459 Fowle (Chipman v.) 130 Mass. 352 . 421, 889 (Church!).) 142 Mass. 12 . ... 120 (Morville v.) 144 Mass. 109 182, 372, 1033 V. Torrey, 131 Mass. 289 .... 360 V. Torrey, 135 Mass. 87 . . . 525, 762 (WilUams v.) 132 Mass. 385 . 179, 262, 268, 542 Fowler v. Parsons, 143 Mass. 401 625, 865, 1061 Foxborough (Post v.) 131 Mass. 202 .. . 1104 Foye V. Patch, 132 Mass. 105 385, 405, 583, 795 Framingham (Dunn v.) 132 Mass. 436 . 937,974 Framingham & Lowell Railroad (Nutter v.) 131 Mass. 2.31 1036 (Nutter V.) 132 Mass. 427 ... . 1039 (Pond V.) 130 Mass. 194 .. . 251, 337 Framingham Parish (Metcalf v.) 128 Mass. 370 301,460 Frampton v. Blume, 129 Mass. 152 ... 303 Frank (Butler!).) 128 Mass. 29 . . . . 77,751 V. Hoey, 128 Mass. 263 908 Franklin (Commonwealth v.) 133 Mass. 569 1085 Franklin County (Childs v.) 128 Mass. 97 439, 1080 (Warner v.) 131 Mass. 348 . . 178, 1080 Franklin County National Bank v. Green- field National Bank, 138 Mass. 515 . 540 Frazert). Bigelow Carpet Co., 141 Mass. 126 577 Frazier v. Simmons, 139 Mass. 531 . 493, 873, 876, 943 Freeland (Chapin v.) 142 Mass. 383 . 634, 638 V. Freeland, 128 Mass 509 ... . 318 Freelove v. Freelove, 128 Mass. 190 . 430, 862 Freeman v. Freeman, 136 Mass. 260 . 345, 457, 760, 766 V. Freeman, 142 Mass. 98 . . 761, 766 1). Griggs, 137 Mass. 75 2.35 1). Nichols, 138 Mass. 313 .... 533 (TirrellD.) 139 Mass. 297 .... 219 !). Travelers' Ins. Co., 144 Mass. 572 397, 420, 570 Freetown (Spooner v.) 139 Mass. 235 1098, 1105 Freight Co. (Greenwoods.) 105 U. S. 13 203,943 Freison v. Bates College, 128 Mass. 464 . . 378 French (Bean !;.) 140 Mass. 229 .... 1113 V. Boston, 129 Mass. 592 .... 156 !). Marshall, 136 Mass. 564 . . 496, 533 !). Merrill, 132 Mass. 520 .... 637 V. Star, [jnion Transportation Co., 134 Mass. 288 167,878 Frissell (Phoenix Ins. Co. v.) 142 Mass. 513 14, 33, 389, 1045 (Wolcott !).) 134 Mass. 1 ... 89, 778 Frost V. Brigham, 139 Mass. 43 . . . 401, 858 V. Domestic Sewing Machine Co., 133 Mass. 563 23 Frye (Burton d.) 139 Mass. 131 . . 870, 897, 950 Fullam (La Mont v.) 133 Mass. 583 .. . 768 Fuller 0. Boston & Albany Railroad, 1.33 Mass. 491 722 (Commonwealth !;.) 132 Mass. 563 . 201 V. Connelly, 142 Mass. 227 ... . 456 V. Damon, 136 Mass. 586 . . 287, 870 (Dwyer v.) 144 Mass. 420 . . 385, 436 (Hatch V.) 131 M.ass. 574 . 272, 403, 888 V. Linzee, 135 Mass. 468 568 D. Pease, 144 Mass. 390 107 (Sears v.) 137 Mass. 326 .... 1109 !). Somerville, 136 Mass. 556 .. . 116 Funck V. Haskell, 132 Mass. 580 . . 757, 1137 1185 TABLE OP CASES. 1186 G. Gaffney v. Hicks, 131 Mass. 124 .... 678 Gage V. Campbell, 181 Mass. 566 . 384, 435, 475 (Moulton v.] 138 Mass. 390 ... . 654 V. Steinkrauss, 131 Mass. 222 .. . 804 Gage Manuf. Co. v. Parr, 138 Mass. 462 . . 439 Galbraith (Sherman v.) 141 Mass. 440 . 278, 860 Gale V. Blaikie, 129 Mass. 206 626 V. Nickerson, 144 Mass. 415 .... 823 Gallagher v. Galletley, 128 Mass. 367 .. . 277 Galletley (Gallagher v.) 128 Mass. 367 . . 277 Galllgan (Commonwealth u.) 144 Mass. 171 921, 922 V. Metacomet Manuf. Co., 143 Mass. 527 12 Galloupe (Murphy v.) 143 Mass. 123 . . 83, 705 Galvin ti. Collins, 128 Mass. 525 . . . 147, 1050 Gaming Implements (Commonwealth v.) 141 Mass. 114 496,497 Gardiner (Boardman K.) 131 Mass. 549 . . 814 Gardner (Amstein v.) 132 Mass. 28 . . . 833 (Amstein v.) 134 Mass. 4 . 393, 710, 833 V. Peaslee, 143 Mass. 382 .... 602 (Cook t;.) 130 Mass. 313 51 (Rathke v.) 134 Mass. 14 . 257, 330, 417 (Welch V.) 133 Mass. 529 . . 612, 1103 Garity v. Gigie, 130 Mass. 184 . . 84, 196, 740 Garvey (Dewey v.) 130 Mass. 86 .... 191 Gass (Ryer t'.) 1.30 Mass. 227 686 Gates (Fish v.) 133 Mass. 441 . . 81, 752, 762 (May V.) 137 Mass. 389 . . 373, 689, 693 V. White, 139 Mass. 353 453 Gauvin (Commonwealth v.) 143 Mass. 134 . 58 Gavitt (Baker v.) 128 Mass. 93 427, 439, 606, 1131 Gay V. Boston & Albany Railroad, 141 Mass. 407 420, 1114 V. Cambridge, 128 Mass. 387 ... 1092 (Davis v.] 141 Mass. 531 . . . . 48, 95 w. Raymond, 140 Mass. 69 .... 587 Gaylord u. King, 142 Mass. 495 . . 380, 503, 504, 820, 976. 988, 1078 V. Norton, 130 Mass. 74 53 Geary (Burt v.) 128 Mass. 404 807 Geer (Learned a) 139 Mass. 31 699 Genest v. L'Union St. Joseph, 141 Mass. 417 111 George v. Gobey, 128 Mass. 289 925 George Woods Co. v. Storer, 144 Mass. 399 351 Gerard v. Buckley, 1.37 Mass. 475 .. . 305, 756 German American Ins. Co. v. Davis, 131 Mass. 316 347 (Davis w.) 135 Mass. 251. .'. .558,948 Germania Ins. Co. (Hinckley v.) 140 Mass. 38 . 556, 557, 560, 562, 623, 805, 1142 Gerrish ». New Bedford Savings Institution, 128 Mass. 159 881 V. Shattuek, 128 Mass. 571 ... . 1111 V. Shattuek, 132 Mass. 235 ... . 1111 Gerry v. Howe, 130 Mass. 350 498 Gertz V. Fitchburg Railroad, 137 Mass. 77 1135, 1136 Gibbens v. Gibbens, 140 Mass. 102 . . . . 303 Gibbons (Commonwealth v.] 134 Mass. 197 923 w. Williams, 135 Mass. 333 . ... 714 Gibbs V. Childs, 143 Mass. 103 865 (Johnson v.) 140 Mass. 186 . . .634, 775 (SeamansD.) 1.32 Mass. 239. . . .1034 V. Taylor, 143 Mass. 187 . . 444, 456, 802, 812 Gibson v. Manufacturers' Ins. Co., 144 Mass. 81 26, 1146 Glfford V. Dartmouth, 129 Mass. 135 .. . 257 8UPPLEMKNT. — 38 Gigie (Garity v.) 180 Mass. 184 . . Gilbert v. Boston. 139 Mass. 313 . ti. Guild, 144 Mass. 601 . . Giles (Porter v.) 129 Mass. 589 . . Gilhoolev v. Sanborn, 128 Mass. 485 Gilkey v. Watertown, 141 Mass. 317 84, 196, 740 . . . 1094 . . 397, 665 . . 86, 1039 ... 391 350, 1080, 1085 Gill (Lappent).) 129 Mass. 349 .... 77,262 Gilman v. Haverhill, 128 Mass. 36 ... . 1080 Gilmore (Spooner v.) 136 Mass. 248 .. . 796 Gilson (Commonwealth v.) 128 Mass. 425 . 441 Ginn (SuUings v.) 131 Mass. 479 . 211, 537, 545 Glasby v. Cabot, 135 Mass. 435 993 Gleason v. Boston, 144 Mass. 25 ... . 748, 770 V. McKay, 134 Mass. 419 .... 209 (Martin v.) 139 Mass. 183 . 737, 938, 1072 V. West Boylston, 136 Mass. 489 . . 536 Glines v. Weeks, 137 Mass. 547 451 Globe Bank v. Ingalls, 130 Mass. 8 ... 611 Globe Co. (Bishop v.) 135 Mass. 132 . 240, 246, 251, 624, 887 Gloucester (Jackman v.) 143 Mass. 380 Gloucester Bank (Pew v.) 1.30 Mass. 391 Glynn (Wadsworth v.) 131 Mass. 220 . Gobey (George v.) 128 Mass. 289 . . Goddard v. Petersham, 136 Mass. 235 V. Rawson, 130 Mass. 97 . . V. Whitney, 140 Mass. 92 . . Godfrey (Learoyd v.) 138 Mass. 315 . 629 96 132 925 1087 552 1018 604, 614, ■ f . Macomber, 128 Mass. 711, 737, 741 188 ... 1038 . . . . 94,429 . . . .1.35,4.30 Goell V. Smith, 128 Mass. 238 Goff (Carter v.) 141 Mass. 123 Golden (Weil v.) 141 Mass. 364 908 Goodall ( Watkins v.) 138 Mass. 533 . . 604, 712 Goodell (Cochran v.) 131 Mass. 464 445, 580, 685 (Plimpton ».) 143 Mass. 365 . . 486, 487 Goodenough v. Thayer, 132 Mass. 152 . . 30 Goodnow V. Shattuek, 136 Mass. 223 . . . 523 Goodrich v. Adams, 138 Mass. 552 . . . 1120 V. Foster, 131 Mass. 217 140 V. Wilson, 135 Mass. 31 ... . 585, 949 Goodsell V. Trumbull, 135 Mass. 99 . . . 795 Goodwillie (Jones v.) 143 Mass. 281 . . 12, 995 Goodwin (Moran v.) 130 Mass. 158 203, 907, 934 Goodwin Bedstead Co. u. Darling, 133 Mass. 358 251 Goodyear Dental Vulcanite Co. <,-. Caduc, 144 Mass. 85 252 Gordon (Mansfield v. ) 144 Mass. 168 357, 534, 545 Gorhani v. Keyes, 137 Mass. 583 ... 219, 320 Gormley (Commonwealth k.) 133 Mass. 580 528, 909 V. Kyle, 137 Mass. 189 . . 232, 970, 1050 Goss (Johnson v.) 128 Mass. 433 . 292, 306, 309, 460, 1120, 1140 (Johnson v.) 132 Mass. 274 . 318, 1138 V. Ellison, 136 Mass. 503 .... 857 (Merriara v.) 139 Mass. 77 . 369, 370, 693, 694 Giiss (Schmaunz v.) 132 Mass. 141 . . .298, 302 Gould (Dennan !).) 141 Mass. 16 . . .495,551 V. Eastern Railroad, 142 Mass. 85 . 153 (Pierce v.) 143 Mass. 234 .. . 45, 1140 Goulding (Commonwealth v.) 135 Mass. 552 495 V. Hair, 133 Mass. 78 702 Gove V. Learoyd, 140 Mass. 524 1000 Grace v. Newton Board of Health, 135 Mass. 490 137, 138, 178 Graffam v. Pierce, 143 Mass. 386 ... . 402 Graham (Hawkins v ) 128 Mass. 20 . . 42, 257 1187 TABLE OF CASES. 1188 Grand Lodge of Masons (Kimball v.) 131 Mass. 59 473, 603 Granger (Bassettu.) 136 Mass. 174. . . .1025 (Bassett v.) 140 Mass. 183 ... . 1031 (Hammond v.] 128 Mass. 272 . 683, 1028 (Hammond v.) 131 Mass. 351 .. . 633 V. Parker, 137 Mass. 228 594 w. Parker, 142 Mass. 186 . . . .47,145 (Phillip's V.) 134 Mass. 475 ... . 1051 Grant (Folsom V.) 1.36 Mass. 498 .... 392 V. Melleu, 134 Mass 335 272 (Traceyu.) 137 Mass. 181 .... 890 Granville (Phelon v.) 140 Mass. 386 . V. Soutliampton, 138 Mass. 256 768, 769, 773, 774 . . 1144 . . 646 . 632, 645 Graves v. Cushman, 131 Mass. 359 V. Dawson, 130 Mass. 78 . V. Dawson, 133 Mass. 419 V. Lake Shore & Michigan Southern Railroad, 137 Mass. 33 . . . 169, 836 (Wood!;.) 144 Mass. 365 .... 463 Gray v. Aldermen of Boston, 139 Mass. 328 894 (Boston v.) 144 Mass. 53 . . . 605, 1109 (Bristol V.) 140 Mass. 59 259 V. Christian Society, 137 Mass. 329 . 748 (Commonwealth v.) 129 Mass. 474 . 16 (Cook V.) 133 Mass. 106 . 30, 73, 74, 1054 V. Cook, 135 Mass. 189 .. . 374, 949 (Coughlinu.) 131Mas8. 56 . ... 679 V. Dean, 136 Mass. 128 864 w. James, 128 Mass. no 744 (Skinner!;.) 130 Mass. 5 440 V. Street Commissioners, 138 Mass. 414 960, 1140 Great Barrington (Worcester ;;.) 140 Mass. 243 770, 1136 Green v. Boston & Lowell Railroad, 128 Mass. 221 167, 168, 269, 409, 411, 428, 835 (Bucklandi;.)-133 Mass. 421 ... 38 V. Riissell, 132 Mass. 536 ... 458,776 Greene v. Canny, 137 Mass. 64 . . . 327, 1113 V. Farlow, 138 Mass. 146 731 V. Milford, 139 Mass. 69 1063 Greenfield v. County Commissioners, 135 Mass. 566 958 Greenfield (Purple v.) 138 Mass. 1 . . 388, 614, 1050, 1085, 1089, 1097 Greenfield Library Association (Attorney Generals.) 135 Mass. 563 . . .1012 Greenfield National Bank (Franklin County National Bank !;.) 138 Mass. 515 540 Greenfield Savings Bank v. Simons, 133 Mass. 415 26, 32, 242, 207 Greenleaf (Ogden v.) 143 Mass. 349 . 423, 1124 Greenwood w. Bradford, 128 Mass. 296 582, 1138 ;;. Freight Co., 105 U. S. 13 . Greer (Whitaker v.) 129 Mass. 417 . Gregory (Felton v.) 130 Mass. 176 . Gridley (Quigley v.) 132 Mass. 35 . Grifian (Hedden v.) 136 Mass. 229 . V. Lawrence, 135 Mass. 365 . Kelleher, 132 Mass. 82 Griggs (Freeman v.) 137 Mass. 75 Grinnell v. Spink, 128 Mass. 25 203, 948 ... 317 ... 81 ... 309 235, 482, 569 . 378, 1068 ... 954 ... 235 5, 82, 899, 776, 795 Griswold (Stewart v.) 134 Mass. 391 443, 809, 811 Groat (Hosmeru.) 143 Mass. 16 407 Grogan v. Worcester, 140 Mass. 227 .. . 1105 Gross (Whitney v.] 140 Mass. 232 ... . 717 Groustra v. Bourges, 141 Mass. 7 . . .421, 599 Groveland (Whitman v.) 181 Mass. 553 157, 158, 159 Grover (Piatt !;.) 136 Mass. 115 820 Groves (Cole v.) 134 Mass. 471 495, 632, 638, 937 Grow V. Dobbins, 128 Mass. 271 512 Grundy v. Martin, 143 Mass. 279 581, 597, 605 Grush (Howes i;.) 131 Mass. 207 18, 205, 265, 272, 421, 429, 470 Guardian Ins. Co. (Powers v.) 186 Mass. 108 556, 559 Guckian v. Riley, 135 Mass'. 71 692 Guernsey v. Wilson, 134 Mass. 482 . ■0. Wood, 130 Mass. 503 . . . . 472 . 31,198 . . 18 . 397, 665 Gulline v. Lowell, 144 Mass. 491 .... 1095 Gunn V. Cambridge Railroad, 144 Mass. 430 946 Gurney v. Waldron, 137 Mass. 376 536, 58(), 825 Guynon (Fay v.) 131 Mass. 31 . 2, 267, 385, 1128 Guild (Bowen v.] 130 Mass. 121 . (Gilbert v.) 144 Mass. 601 H. Habich (Kenney v.) 137 Mass. 421 .... 729 Hackett v Buck, 128 Mass. 369 446 i;. Potter, 131 Mass. 50 679, 751, 862, 896 V. Potter, 135 Mass. 349 478 Hadley (Shutesbury v.) 133 Mass. 242 . 769, 773 V. Watson, 143 Mass. 27 ... . 436, 870 Hagan (Commonwealth v.) 140 Mass. 289 . 927 Hagenlock (Common wealth v. ) 1 A Mass. 125 60 Hair (Gouldingi;.) 1.33 Mass. 78 702 (Leonard!!.) 133 Mass. 455. . .272,702 Hale i;. County Commissioners, 187 Mass. Ill 959,1141 V. Hale, 137 Mass. 168 304 V. Joslin, 134 Mass. 310 ... . 81, 276 (Noyes i;.) 137 Mass. 266 963, 966, 1138 (Perry !;.) 143 Mass. 540 80 Haley v. Bellamy, 137 Mass. 357 ... . 54 V. Boston Belting Co., 140 Mass. 73 . 340 V. Case, 142 Mass. 316 656 (Cliapin !;.) 133 Mass. 127 . 422, 438, 808 V. Young, 134 Mass. 864 ... . 687, 973 Hall V. Carney, 140 Mass. 131 83 (Cole i;.) 131 Mass. 88 286 (Commonwealth v.) 128 Mass. 410 . 136 (Commonwealth i;.) 142 Mass. 454 . 60 Hall (Delaney v.) 130 Mass. 524 .... 428 V. Eaton, 139 Mass. 217 150 V. Hall, 140 Mass. 267 . 1019, 1137, 1139 (Harlow i;.) 132 Mass. 232 .... 874 V. Hitrtwell, 142 Mass. 447 ... . 1040 (Learned !;.) 133 Mass. 417 .... 440 (Shaw i;.) 134 Mass. 103 22 V. Tay, 131 Mass. 192 . Hallahan (Commonwealth v.) 143 Mass. 167 643 Halleok (Tompkins v.) 138 Mass. 82 . . . 639 Hallgarten v. Oldham, 135 Mass. 1 198, 1062, 1138 Ham V. Boston Board of Police, 142 Mass. 90 803 (Stoddard v.) 129 Mass. 383 ... 871 < Woodward v.) 140 Mass. 154 . . 703, 864 Hamer (Commonwealth ti.) 128 Mass. 76. . 934 Hamilton (Commonwealth v.) 129 Mass. 479 93 V. Farrar, 128 Mass. 492 321 V. Farrar, 181 Mass. 572 . 678, 1187, 1141 V. Lane, 138 Mass. 358 ... 525, 1140 (Newhall v.) 128 Mass. 463 ... . 23 Hamlen !!. Werner, 144 Mass. 396 ... . 284 Hamlin !;. New Bedford, 143 Mass. 192 738, 1083 1;. Pairpoint Manuf. Co., 141 Mass. 51 152, 503 Hammond (Bowers :;.) 139 Mass. 360 . . . 459 1189 TABLE OF CASES. 1190 Hammond v. Granger, 128 Mass. 272 . 633, 1028 V. Granger, 181 Mass. 351 ... . 833 V. Lovell, 136 Mass. 184 . . 679, 684, 959 (May w.) 144 Mass. 151 .. . 807, 1141 (Stickneyw.) 138 Mass. 116 . . .1126 (Swan i>.) 138 Mass. 45 1125 Hamor v. Eastern Railroad, 133 Mass. 315 . 330 Hampden Cotton Mills u. Payson, 130 Mass. 88 678 Hampden County (Agawam v.) 130 Mass. 628 158, 190, 208, 258, 973 Hampden County Comm'rs (Hitchcock v.) 131 Mass. 619 1084 Hampden Savings Bank (Roche v.) 128 Mass. 115 580 Hampshire ( Lyman u.) 138 Mass. 74 . 1102, 1107 (Lyman v.) 140 Mass. 311 . 159, 259, 712 Hanley (Commonwealth v.) 140 Mass. 457 1128 Hanlon (Boston Water Power Co. v.) 132 Mass. 483 149 V. Soutli Boston Horse Railroad, 129 Mass. .310 725 Hannan v. Doherty, 136 Mass. 567 . . 108, 1058 Hanscom v. Boston, 141 Mass. 242 .... 1094 Hanson v. Dodge, 134 Mass. 273 222 Hapgood (Penn Match Co. v.) 141 Mass. 145 754, 791 V. Wellington, 136 Mass. 17 .... 124 Harding v. Morrill, 136 Mass. 291 . 578, 579, 732 V. Weld, 128 Mass. 587 >508 Hardy ». Safford, 132 Mass. 332 86 V. Smith, 136 Mass. 328 290, 312, 519, 1139 Harkins (Commonwealth v.) 128 Mass. 79 . 464 Harlan (Connor K.) 130 Mass. 265 .... 140 (Fay !).) 128 Mass. 244 .. . 403, 1131 Harlow v. Hall, 132 Mass. 232 874 V. Whitcher, 136 Mass. 553 ... . 857 Harmon (Sawyer V.) 136 Mass. 414 . . . 741 Harney v. Shaw, 141 Mass. 340 395 Harrigan v. Connecticut River Lumber Co., 129 Mass. 580 .. . 203, 1137, 1140 Harriman (Commonwealth v.) 134 Mass. 314 210 Harrington (Commonwealth v.) 130 Mass. 35 205,320 V. McKillop, 1.32 Mass. 567 ... . 907 (O'Neil V.) 129 Mass. 591 .... 548 V. Smith, 138 Mass. 92 879 Harris v. Carmody, 131 Mass. 51 . . . 320, 475 (Commonwealth v.) 131 Mass. 336 . 846 V. Mackintosh, 133 Mass. 228 353, 367, 368, 866 (MinotK.) 132 Mass. 528 . . 290,1139 V. Newbury, 128 Mass. 321 1088, 1092, 1100 (Vilesy.) 130 Mass. 300 642 Hart V. Jamaica Pond Aqueduct, 133 Mass. 488 354 (Mitchell V.) 132 Mass 297 ... . 613 Hartford v. Co-operative Homestead Co., 128 Mass. 494 247 V. Co-operative Homestead Co., 130 Mass. 447 256 Hartigan (Proctor v.) 139 Mass. 554 .. . 401 (Proctor!).) 143 Mass. 462 .... 746 Hartt (Damrell v.) 137 Mass. 218 ... . 290 Hartwell (Commonwealth v.) 128 Mass. 415 176, 844 (Hall u.) 142 Mass. 447 1040 Harvey (Mooari).) 128 Mass. 219 . . .316,613 V. Murray, 136 Mass. 377 ... . 94 Harwood (Lowe v.) 139 Mass. 133 . . .234,970 (McKim V.) 129 Mass. 75. . . . 298, 450 V. North Brookfield, 130 Mass. 561 . 962 Haskell ( Commonw ealth u. ) 140 Mass. 128 1 128, 1136 (Funck V.) 132 Mass. 580 . . 757, 1137 Haskins (Commonwealth v.) 128 Mass. 60 732, 1051 Haskins v. D'Este, 133 Mass. 356 ... . 133 Hastings v. Lovejoy, 140 Mass. 261 . . 217, 601 V. Stetson, 130 Mass. 76 . . 411, 616, 618 V. Weber, 142 Mass. 2.32 491 Hatch V. Fuller, 131 Mass. 574 . . 272, 403, 888 V. Kenny, 141 Mass 171 437 Hathaway (Deane !).) 136 Mass. 129 ... 963 V. Fall River Bank, 131 Mass. 14 70, 188 (New Bedford Institution for Savings D.) 134 Mass. 69 539 (Teelew.) 129 Mass. 164 301 Hatt V. Nay, 144 Mass. 186 .... 389, 658 Haverhill (CoUingill v.) 128 Mass. 218 . . 315 (Foley V.) 144 Mass. 352 116, 117, 179 (Oilman v.) 128 Mass. 36 .... 1080 (Manners v.) 135 Mass. 165 379, 417, 796, 983, 989 (Savory v.) 132 Mass. 324 . 1100, 1102, 1103 (Waldron v.) 143 Mass. 582 ... 980 Haverhill Aqueduct Co. (Brickett v.) 142 Mass. 394 . . 205, 939, 1072, 1073 (Marsh v.) 134 Mass. 106 . . . . 321 Hawes v. Howland, 136 Mass. 267 639, 689, 965 Hawks V. Locke, 139 Mass. 205 990 Hawkins v. Graham, 128 Mass. 20 . . 42, 257 Hawley (Commonwealth v.) 140 Mass. 94, 457 Hayden v. Hayden, 142 Mass. 448 . . 501, 1041 (Richmond Iron Works v.) 132 Mass. 190 22 (Stevens v.) 129 Mass. 328 ... . 338 Haydenville Savings Bank v. Parsons, 138 Mass. 53 120, 955 Hayes (Commonwealth v.) 138 Mass. 185 414 (Commonwealth!'.) 140 Mass. 366 . 5 V. Pearson, 128 Mass. 445 .. 2, 39, 197 V. Cambridge, 136 Mass. 402 .. . 1095 V. Cambridge, 138 Mass. 461 .. . 1098 V. Di Vito, 141 Mass. 233 ... . 991 V. Nash, 129 Mass. 62 107 Heaganey (Commonwealth v.) 137 Mass. 574 930 Heald (Clifford v ) 141 Mass. 322 ... . 490 (The Literati v.) 141 Mass. 326 . . 145 Heath (Stone D.) 135 Mass. 561 1081 Hedden v. Griffin, 136 Mass. 229' . 235, 482, 569 V. Roberts, 134 Mass. 38 382, 874, 1042 Heffernan (Huzzey v.) 143 Mass. 232 . 699, 851 Hemenway v. Hemenway, 134 Mass. 446 . 165 Henderson v. Benson, 141 Mass. 218 46, 1059 ( Commonwealth v. ) 140 Mass. 303 911, 926 (McCarthy v.) 138 Mass. 310 . 533, 856 (Riley v.) 134 Mass. 171 896 Hennessey v. Connor, 139 Mass. 120 . . . 217 Henry (Nealon v.) 131 Mass. 153 ... . 691 Herrick (Clapp v.) 129 Mass 292 ... . 673 (Kelly V.) 131 Mass. 373 .... 508 (Stearns v.) 132 Mass. 114 ... . 200 (Wright w.) 128 Mass. 240 .... 23 Hersey (Commonwealth v.) 144 Mass. 297 931 1142 V. Jones, 128 Mass. 473 .. . 104, 383 Hervey (Bailey y.) 135 Mass. 172 . . 872; 1141 (Briggs u.) 130 Mass. 186 . . 382,815 Hewes v. Rand, 129 Mass. 519 104 Hewlett V. Cutler, 1.37 Mass. 285 ... . 71 (Squire v.) 141 Mass. 597 .... 364 Hey wood (Thompson v.) 129 Mass. 401 362, 696 Hibbard (McKim v.) 142 Mass. 422 1027, 1028, 1032 Hicks (Gaffney v.) 131 Mass. 124 ... . 678 I). Westport, 130 Mass. 478 ... '967 Higgins (Clark D.) 132 Mass. 586 .... 570 (Langmaidu.) 129 Mass. 353 ... 149 V. Lime, 130 Mass. 1 . . . . 204, 552 Highland Foundry Co. (Lothropw.) 128 Mass. 120 101, 537 1191 TABLE OF CASES. 1192 Highland Street Railway (Banks v ) 136 Mas8. 485 711 (Cronin II.) 144 Mass. 249 . . 946,1140 (Day V.) 135 Mass. 113 .. . 641, 944 Hill V. Ahem, 135 Mass. 158 678 V. Boston, Hoosac Tunnel, & Western Railroad, 144 Mass. 284 . 173, 841 1). Chase, 143 Mass. 129 199 (Doherty v ) 144 Mass. 465 416, 490, 492 V. Easthampton, 140 Mass. 381 975, 1139, 1142 (Edmunds v.) 133 Mass. 445 88, 484, 862, 863, 992 (Morse v.) 186 Mass. 60 363, 365, 592, 1030, 1034 (Stratton v.) 134 Mass. 27 . 489, 1047 (Union Institution for Savings v.) 139 Mass. 47 10 V. Wright, 129 Mass. 296 .... 522 Hiller (Bowman v.) 130 Mass. 153 . 127, 320 HilUard (Suter v.) 132 Mass. 412 . . 181, 1137 Hills V. Home Ins. Co., 129 Mass. 345 . 62, 893 Hinckley (Elwellu.) 138 Mass. 225 . .20,414 V. Germania Ins. Co., 140 Mass. 38 556, 557, 560, 562, 623, 805, 1142 V. Merchants' Bank, 131 Mass. 147 . 133, 382 V. Thatcher, 139 Mass. 477 . 182, 291 V. Union Pacific Railroad, 129 Mass. 52 126, 132 Hitchcock V. Hampden County Commission- ers, 131 Mass. 519 1084 (Smith V.) 130 Mass. 570 .... 682 Hitchings «. Edmands, 132 Mass. 338 119, 1138 Hittinger v. Boston, 139 Mass. 17 .... 960 V. Westford, 135 Mass. 258 956, 1140, 1141 Hobbs (Commonwealth v.) 140 Mass. 443 1049, 1138 Hodge (Carrjj.) 130 Mass. 55 702 V. Cole, 140 Mass. 116 ... 849, 455 Hodgkins v. Chappell, 128 Mass. 197 386, 405, 427 V. Price, 132 Mass. 196 475 V. Price, 137 Mass. 13 332, 596, 600, 605, 867, 989 V. Price, 141 Mass. 162 ... 577, 605 (Weston f.) 136 Mass. 326 . . . 6.36 Hoey (Frank v.) 128 Mass. 263 908 (Jones «.) 128 Mass. 585 . . . .1043 Hogan V. Barry, 143 Mass. 588 . 284, 285, 1137 (Cunningham v.) 136 Mass. 407 «7, 144, 1040 r. Wixted, 138 Mass. 270 . . 349, 970 Hogarty (Commonwealth v.) 141 Mass. 106 496, ^ •^ * . 1049 Hogle V. Connell, 134 Mass. 150 .... 495 Holcomb V. Weaver, 136 Mass. 265 .. . 218 Holden v. Fitchburg Railroad, 129 Mass. 268 651 V. Hoyt, 134 Mass. 181 . . 37, 246, 359 V. Metropolitan National Bank, 138 Mass. 48 10 V. Phelps, 135 Mass. 61 . 349, 697, 881 f. Phelps, 141 Mass. 456 .... 884 (Rogers v.) 142 Mass. 196 92, 755, 1045 V. Upton, 134 Mass. 177 .. . 242, 359 Iloldsworth v. Tucker, 148 Mass. 369 1048, 1069 Holland v. Lynn & Boston Railroad, 144 Mass. 425 946 Hollev (Katama Land Co. v.) 129 Mass. 540 238 Hollis" (Commonwealth v.) 140 Mass. 436 . 780 HoUister (Paine v.) 139 Mass. 144 . . 524, 1118 HoUiston (Curran v.) 130 Mass. 272 .. . 973 Holmes r. Charter Oak Ins. Co., 131 Mass. 64 . 576 (Commonwealth v.) 137 Mass. 248 608 V. Flanders, 134 Mass. 147 ... . 403 Holmes v. Turner's Falls Co., 142 Mass. 590 153, 380, 442, 601, 681, 851 V. Winchester, 133 Mass. 140 . 817, 646 V. Winchester, 135 Mass. 299 .. . 547 (Winchester v.) 138 Mass. 640 357, 544 w. Winchester, 138 Mass. 542 . 514, 580 Holt (Churchill v.) 131 Mass. 67 .... 682 (Cozzens v.) 136 Mass. 237 ... 647 (Cram «.) 1.35 Mass. 46 13 (Hooton u.) 139Mass. 54 . . 476,599 w. Weld, 140 Mass. 578 369, 884, 826, 966 Holyoke (Leonard v.) 138 Mass. 78 . . . 1102 (Sullivan w.) 135 Mass. 273 ... 978 Home Bank v. Carpenter, 129 Mass. 1 105, 106 Home Ins. Co. (Brigham v.) 131 Mass. 319 103, 369, 567 (Hills w.) 129 Mass. 845 .... 52,393 (Soars V.) 140 Mass. 343 .. . 562, 623 Home Savings Bank v. Boston, 131 Mass. 277 ; . . 856,964 V. Mackintosh, 131 Mass. 489 . 213, 221 (Reed v.) 130 Mass. 443 246, 644, 866, 879 Homer (Locke v.) 131 Mass. 93 . 262, 268, 276 Hood V. Adams, 128 Mass. 207 ... 28, 612 Hooper v. Bradbury, 138 Mass. 308 ... 1007 V. Farnsworth, 128 Mass. 487 148, 594, 1141 Hoosac Tunnel Dock Co. v. O'Brien, 137 Mass. 424 8, 53, 480 Hooten v. Barnard, 187 Mass. 36 . . 273, 819 Hooton V. Holt, 139 Mass. 54 ... . 476, 699 Hope (Brooks v.) 139 Mass. 351 .... 452 Hopedale Machine Co. v. Entwistle, 133 Mass. 443 222,235 Hopkins (Commonwealth v.) 133 Mass. 381 810, 527 V. Damon, 138 Mass. 65 .... 431 (Oliver v.) 144 Mass. 175 .... 343 V. Shepard, 129 Mass. 600 ... . 576 Hoppin !). Worcester, 140 Mass. 222 . . . 655 Horton (Chase v.) 143 Mass. 118 408, 433, 486 (Cook V.) 129 Mass. 527 48 0. Cooley, 135 Mass. 589 . . 442, 601 Hosmer v. Groat, 143 Mass. 16 407 (Maxwell v.) 138 Mass. 207 ... 282 Houghton V. Moore, 141 Mass. 437 . . . 597 (Stone w.) 139 Mass. 175 .... 826 V. Watertown Ins. Co., 131 Mass. 300 221,1138 Housatonic Railroad ( Commonwealth v. ) 143 Mass. 264 204 Howard v. Fay, 188 Mass. 104 1000 V. Pepper, 136 Mass. 28 281 (Small V.) 128 Mass. 131 .... 785 (Tucker u.) 128 Mass. 361 .... 353 Howard Ins. Co. (Mooney v.) 138 Mass. 375 565, 1043, 1044 Howe (Commonwealth v.) 132 Mass. 250 413, 464 (Commonwealth v.) 144 Mass. 144 . 33.3, 936, 1056, 1138 (Gerry v.) 130 Mass. 350 .... 498 (Potter V.) 141 Mass. 357 . 350, 370, 674 V. Taggart, 133 Mass. 284 . 124, 216, 422 V. Whitehead, 130 Mass. 268 .. . 391 Howell (Butmanw.) 144 Mass. 66 .... 877 Howes V. Burt, 130 Mass. 368 . . 275, 514, 642 V. Grush, 131 Mass. 207 18, 205, 266, 272, 421, 429, 470 Rowland (Hawes v.) 136 Mass. 267 639, 689, 965 Hoxie (Bowen v.) 187 Mass. 527 . 1123, 1138 V. Chaney, 143 Mass. 592 . . 987, 988 Hoyt (Holden v.) 134 Mass. 181 . 37, 246, 359 V. Jaques, 129 Mass. 286 .... 804 Hubbard (Porter v.) 184 Mass. 2.33 ... 594 V. Taunton, 140 Mass. 467 ... . 975 Hubbardston (Bent v.) 138 Mass. 99 . 539, 988, 974, 1138 1193 TABLE OP CASES. 1194 Hubbell V. East Cambridge Five Cents Sav- ings Bank, 132 Mass. 447 .. . 471 Hackins v. Hunt, 188 Mass. 366 ... 10, 124 Hudson (Flaggw.) 142 Mass. 280 . .1090,1095 Huglies (Commonwealth v.) 183 Mass. 496 . 319 Hull V. Westfield, 138 Mass. 433 ... 13, 977 Humphrey, appellant, 137 Mass. 84 . . . 16 (Sartwell v.) 136 Mass. 396 ... 506 Hunking (Bowe v.) 135 Mass. 380 ... . 603 Hunnewell (Crafts v.) 129 Mass. 220 .. . 306 Hunt, appellant, 141 Mass. 615 . 100, 1032, 1035 (Huckins v.) 138 Mass. 366 . . . 10, 124 V. Mann, 132 Mass. 53 . . 67, 445, 846 V. Poole, 139 Mass. 224 ... . 410, 520 Huntington (Bank of Commerce v.) 129 Mass. 444 253 V. Lyman, 138 Mass. 206 .... 281 Huntress v. Place, 137 Mass. 409 ... . 295 Hurley «. Fall Eiver Publishing Co., 138 Mass. 334 617 V. O'SuIUvan, 137 Mass. 86 431, 816, 1122, 1137, 1140 Husband (Aldriohw.) 131 Mass. 480 ... 782 V. Aldrich, 135 Mass. 317 . 339, 580, 755 Hutchings (Birch v.) 144 Mass. 561 . 284, 1142 Huzzey v. Heffernan, 143 Mass. 232 . 699, 851 Hyde (Cambridge Savings Bank v.) 131 Mass. 77 38, 124 V. Mechanical Refrigerating Co., 144 Mass. 432 271 V. Wason, 131 Mass. 460 . . 351, 1006 Hyde Park (Bean v.) 143 Mass. 245 .. . 986 V. Canton, 130 Mass. 505 .... 772 (Crane v.) 135 Mass. 147 .... 194 (Springs.) 137 Mass. 554 .... 1.38 Hyman (Faulkner v.) 142 Mass. 53 . . . 644 I. lasigi t<. Chicago, Burlington, & Quincy Kail- road, 129 Mass. 46 ... . 240, 372, 374 (Parker v.) 138 Mass. 416 . . 294, 1016 Ide V. Pierce, 134 Mass. 260 . . . 286, 498 Importers & Traders' Bank v. Shaw, 144 Mass. 421 123 India Ins. Co. v. Bigler, 132 Mass. 171 . . 286 Indian Orchard Mills (Rock v.) 142 Mass. 522 438,656,657,663 Ingalls (Globe Bank v.) 130 Mass. 8 ... 611 V. Newhall, 139 Mass. 268 . . 152, 581 Inhabitants oi Greenfield (Purple v.) 138 Mass. 1 1050 Innerarity v. Merchants' National Bank, 139 Mass. 332 34 Intoxicating Liquors (Commonwealth v.) 128 Mass. 72 .... 631, 800, 9.33 (Commonwealth v.) 130 Mass. 29 . 590 (Commonwealth v.) 135 Mass. 619 . 909, 933 (Commonwealth v.) 138 Mass. 606 . 910 (Commonwealth v.) 140 Mass. 287 933, 1138 (Commonwealth v.) 142 Mass. 470 . 934 Irwin (Teague u.) 134 Mass. 303 . . 788,1129 Isele V. Arlington Savings Bank, 135 Mass. 142 263,673 V. Sehwamb, 131 Mass. 337 ... 673 Ismahl (Commonwealth v.) 134 Mass. 201 . 618, 630, 816 Ives (Butler v.) 139 Mass. 202 ... 625, 681 Jackman v. Arlington Mills, 137 Mass. 277 . 604, 1065 V. Gloucester, 143 Mass. 380 ... 629 (Smitli V.) 138 Mass. 143 . 388, 412, 763 Jackson (Commonwealth v.) 132 Mass. 16 . 464, 465 — V. Olney, 140 Mass. 195 481 V. Von Zedlitz, 136 Mass. 342 .. . 1005 Jackson Co. v. Boylston Ins. Co., 139 Mass. 508 559,562,948 Jacobs (Choate v.) 186 Mass. 297 . . 451, 1118 (CummingB.) 130 Mass. 419 ... 635 V. Denison, 141 Mass. 117 .... 704 (MacMahon t!.) 129 Mass. 524 n. . . 105 (Taylor v.) 138 Mass. 148 ... . 810 Jamaica Pond Aqueduct (Attorney General V.) 133 Mass. .361 ... 90, 246, 354 (Hart «.) 138 Mass. 488 354 James v. Cummings 132 Mass. 78 . 218, 877, 405 (Gray v.) 128 Mass. 110 744 V. Newton, 142 Mass. 366 . 357, 545, 548 (Nichols V.) 180 Mass. 589 . 37, 762, 787 (Norcross v.) 140 Mass. 188 ... 264 (Warren v.) 130 Mass. 540 . . 475, 697 i>. Worcester, 141 Mass. 361 ... 11 Jaques (Hoyt v.) 129 Mass. 286 304 (Swasey v.) 144 Mass. 135 291, 823, 1140 Jaquith (Marshall v.) 184 Mass. 138 . 316, 524 Jardine (Comn\onwealth v.) 143 Mass. 567 . 62 Jason V. Antone, 131 Mass. 534 . . . 1036, 1138 Jefferson (Miller's River National Bank v.) 138 Mass. Ill 539 Jeffs (Commonwealth v.) 182 Mass. 6 . . 392 Jenkins (Commonwealth v.) 187 Mass. 572 . 930 V. Lester, 131 Mass. 355 196 (Weston w.) 128 Mass. 562 . ... 297 (Wilkinsi).) 186 Mass. 88 .... 549 V. Wood, 134 Mass. 115 633 V. Wood, 140 Mass. 66 455 V. Wood, 144 Mass. 238 .. . 458, 887 Jenks (Borden v.) 140 Mass. 562 .... 1121 (Commonwealth v.) 138 Mass. 484 532, 608 (Stone V.) 142 Mass. 519 . . 705, 864 Jennings v. Whitehead & Atherton Machine Co,, 138 Mass. 594 . 401, 431, 1133 Jewell (Colburn v.) 130 Mass. 182 ... . 445 (Wood ».) 130 Mass. 270 .... 980 Jewett V. Brooks, 134 Mass. 505 231, 267, 393, 760 V. Carter, 132 Mass. 335 ... . 31, 482 (Tarbell v.) 129 Mass. 457 . . 456, 583 V. Tucker, 139 Mass. 566 . . 361, 690 (Wilkins ;;.) 139Mass. 29 . . 766,9.38 Joan V. Commonwealth, 136 Mass. 162 . . 374 Johnson v. Boston, 1,30 Mass. 452 ... . 1067 V. Boston Tow-Boat Co., 135 Mass. 209 609,660,661 1195 TABLE OP CASES. 1196 Johnson (Commonwealth v.) 137 Mass. 562 441 (Cooper!;.) 143 Mass. 108 .... 474 (Deehan v.) 141 Mass. 23 . 535, 623, 648, 984 (Dove V.) 141 Mass. 287 1020 (Dunham v.) 135 Mass. 310 . 216,630 V. Dunn, 134 Mass. 522 .... 9, 1087 V. Gibbs, 140 Mass. 186 .. . .634, 775 V. Goss, 128 Mass. 433 292, 306, 309, 460, 1120, 1140 V. Goss, 132 Mass. 274 ... 818, 1138 (Kelly V.) 128 Mass. 530 .... 658 (Noves V.) 139 Mass. 436 . . 233, 903 V. Parsons, 140 Mass. 173 . 122, 134, 404 (Patten i'.) 131 Mass. 297 . ... 167 V. Beed, 136 Mass. 421 .... 9, 797 ^ (Reitenbach v.) 129 Mass. 316 . . 77 ^ V. Russell, 144 Mass. 409 .... 411 V. Thompson, 129 Mass. 398 . 376, 687 V. Wilkinson, 139 Mass. 3 . . 490, 623 V. Witt, 138 Mass. 79 ... . 729, 731 Johnston v. Trade Ins. Co"., 132 Mass. 432 . 198, 254, 575, 1144 Jones V. Ames, 135 Mass. 431 35 (Buffum V.) 144 Mass. 29 . 397, 484, 545 (Commonwealth v.) 136 Mass. 173 . 607 (Commonwealth ».) 142 Mass. 573 930, 1140 V. Dexter, 130 Mass. 380 .... 764 (Dodd V.) 137 Mass. 322, . . . 270, 559 V. Dow, 137 Mass. 119 .. . 506, 789 V. Dow, 142 Mass. 130 . 507, 792, 1048 Jones V. Foote, 137 Mass. 543 . . . V. GoodwUlie, 143 Mass. 281 . (Hersey v.) 128 Mass. 473 . . V. Hoey, 128 Mass. 585 .. . (Lockhead v) 137 Mass. 25 . (Reed v.) 133 Mass. 116 . . . (Rodgers v.) 129 Mass. 420 . . V. Tilton, 139 Mass. 418 . . . (Tobin V.) 143 Mass. 448 . . (Warner v.) 140 Mass. 216 . . Jordan (Bowditch v.) 131 Mass. 321 . V. McKinney, 144 Mass. 438 . V. Middlesex Railroad, 138 Mass. (SilTer V.) 136 Mass. 319 . . Silver;;.) 139 Mass. 280 . . . 1015 12, 995 104, 383 . 1043 . 810 . 687 . 493 72, 1040 . 1129 . 432 381, 524 . 1135 425 274 . 753 . 41 31, 276 . 150 I, 744, 1137, 1140 . . 229 Joyce V. Worcester, 140 Mass. 245 . . . 655 Judd V. Tryon, 131 Mass. 345 590 Judge V. Connecticut Ins. Co., 132 Mass. 5-21 558 Julian V. Boston, Clinton, &c. Railroad, 128 Mass. 565 317 Julius (Commonwealth v.) 143 Mass. 132 . 928 Justices' Opinions, 135 Mass. 594 . . 207, 1141 -, 136 Mass. 578 ... . 938, 1136, 1140 , 136 Mass. 583 333, 501, 1056, 1138, 1141 , 138 Mass. 601 210 ^, 142 Mass. 601 210.211 Josliu (Hale v.) 134 Mass. 310 Joslyn (Treat v.) 139 Mass. 94 . . Joy (Bailey v.) 132 Mass. 856 207, i (Fiske V.) 141 Mass. 311 K. Kaiser v. Alexander, 144 Mass. 71 . . . 436, 870 (Alexander v.) 144 Mass. 71 . . 415, 877 Kaley (Burke v.) 138 Mass. 464 .... 388 Kane (Commonwealth v.) 143 Mass. 92 . . 924 Kansas Construction Co. v. Topeka, &c. Railroad, 135 Mass. 34 .... 901 Karcher v. Knights of Honor, 137 Mass. 368 110 Katama Land Co. v. HoUey, 129 Mass. 540 238 Kearns v. Cunniff, 138 Mass. 434 822, 960, 1120 Keating (Commonwealth v.) 133 Mass. 572 438 Keavy (Bristol County Savings Bank v.) 128 Mass. 298 242,393,485 Keefe o. Boston & Albany Railroad, 142 Mass. 251 720 (Commonwealth v.) 140 Mass. 301 . 911, 1049 (Commonwealth v.) 143 Mass. 467 . 532, 911 Keenan ( Commonwealth v. ) 1-39 Mass. 193 669, 1140 (Commonwealth w.) 140 Mass. 481 . 50, 730, 1139 Keene v. White, 136 Mass. 23 . 801, 868, 949, 9-50 Keith V. Brockton, 136 Mass. 119 ... . 1089 V. Copeland, 138 Mass. 303 ... . 1015 V. Keith, 143 Mass. 262 365 V. New Haven & Northampton Co., 140 Mass. 175 663 (Stiff V.) 143 Mass. 224 95 Kelleher v. Clark, 135 Mass. 45 863 (GriflBii v.) 132 Mass. 82 954 Kelley v. "Boston & Maine Railroad, 135 Mass. 448 844, 978 V. Boston Lead Co., 128 Mass. 456 . 659 (Commonwealth v.) 140 Mass. 441 . 924 (McConnell v.) 138 Mass. 372 869, 538, 867 Kelley w. Meins, 135 Mass. 231 . . . .290,847 V. Newburyport Horse Railroad, 141 Mass. 496 ... . 249, 250, 945, 1059 Kellogg V. Kimball, 135 Mass. 125 V. Kimball, 138 Mass. 441 V. Kimball, 139 Mass. 296 V. Kimball, 142 Mass. 124 V. Tompson, 142 Mass. 76 Kelly V. Beede, 141 Mass. 184 . V. Herrick, 131 Mass. 378 V. Johnson, 128 Mass. 530 Kempton v. Burgess, 186 Mass. 192 V. Saunders, 130 Mass. 236 . Saunders, 132 Mass. 466 Kenadyw. Lawrence, 128 Mass. 318 Kendall (Commonwealth v.) 144 Mass, (McNeil V.) 128 Mass. 245 (Train v.) 137 Mass. 798 798, 817, 1052 . . .258,287 ... 956 402, 428, 4.30, 799, 995 . 438 . 508 . 658 . 36 207, 550 43, 551 . 1100 857 . 672 . . 594 . . 71 Kendricken (Bugbee v.) 130 Mass. 437 . . 488 (Bugbee v.) 132 Mass. 349 . 416, 428, 612 Kenison v. Arlington, 144 Mass. 456 . 1075, 1076 Kennebec Framing Co. v. Pickering, 142 Mass. 80 629 Kennedy's case, 135 Mass. 48 208, 746 Kennedy (Commonwealth v.) 131 Mass. 584 59, 530 (Commonwealth v.) 135 Mass. 543 . 413, 607 (Commonwealth v.) 136 Mass. 152 60, 1130 u. Owen, 131 Mass. 431 . . . .469,866 V. Owen, 184 Mass. 227 469 V. Owen, 136 Mass. 199 ... . 263, 469 V. Saunders, 142 Mass. 9 907 Kenneson (Commonwealth v.) 143 Mass. 418 671,940 Kenney w. Brown, 139 Mass. 346 , . .494,550 1197 TABLE OF CASES. 1198 39 Kenney v. Consumers' Gas Co., 142 Mass. 417 343, 350, 1078 V. Habich, 137 Mass. 421 .... 729 (Look V.) 128 Mass. 284 . . 275, 453, 697 ■" 659 318 69 437 287 182 598 230 911 1010 1006 1142 219, 320 . 634 . 812 9,442 V. Shaw, 133 Mass. 501 (Tirrell v.) 137 Mass. 30 Kennon (Commonwealth i>.) 130 Mass Kenny (Hatch v.) 141 Mass. 171 Kent (Conant v.) 130 Mass. 178 . V. Dunham, 142 Mass. 216 . V. Todd, 144 Mass. 478 1141 Kenworthy v. Stevens, 132 Mass 123 Kerrissey (Commonwealth v.) 141 Mass. 110 Kettell (Denny v.) 1.35 Mass. 138 Keyes v. Carleton, 141 Mass. 45 . (Dole V.) 143 Mass. 237 . 303, (Gorham v.) 137 Mass. 583 (Thayer v.) 136 Mass. 104 Kezar (Osgood o.) 158 Mass. 357 Khron v. Brook, 144 Mass. 616 . Kimball (Baker ti.) 140 Mass. 120 D. Bangs, 144 Mass. 321 794 V. Cross, 136 Mass. 300 . . 595, 696, 600 V. Ellison, 128 Mass. 41 291 V. Grand Lodge of Masons, 131 Mass. 69 473,603 (Kellogg «.) 1.36 Mass. 125 . ... 798 (Kellogg i;.) 138 Mass. 441 798, 817, 1052 (Kellogg V.) 139 Mass. 296 . . .258, 287 (Kellogg y.) 142 Mass. 124 . ... 956 V. Mcintosh, 134 Mass. 362 ... . 321 0. Perkins, 130 Mass. 141 ... . 47 (Williams v.) 132 Mass. 214 . . 807, 808 (Williams v.) 135 Mass. 411 ... 809 t>. Withington, 141 Mass. 376 .. . 283 Kimins v. Boston Five Cents Savings Bank, 141 Mass. 33 884 King, petitioner, 129 Mass. 413 ... . 257, 474 V. Burnham, 129 Mass. 598 . . . 39, 582 V. Marrow, 130 Mass. 277 .... 255 (Gaylord v.) 142 Mass. 495 380, 503, 504, 820, 976, 988, 1078 V. Murphy, 140 Mass. 254 ... . 323 B. Nichols, 138 Mass. 18 . . . ,547,729 King Philip Mills (Eice ».) 144 Mass. 229 663, 664, 1139 Kingman (Leonard v.) 136 Mass. 123 . . . 602 (Partridge v.) 130 Mass. 476 . . 377, 757 V. Soule, 132 Mass. 285 ... . 453, 777 Kingsbury. (Bobsin v.) 138 Mass. 538 . . 64-5, 742 (Chapinu.) 135 Mass. 580 .... 522 (Chapin v.) 188 Mass. 194 . . 523, 1139 (Newhall v.) 131 Mass. 445 ... . 875 Kinneen v. Wells, 144 Mass. 497 . . 211, 1056 Kinney (Day u.) 131 Mass. 37 871 Kinsey (Ammidown v.) 144 Mass. 587 .345,458 Kinsley (Commonwealth v.) 133 Mass. 578 . 206, 805 Kites V. Church, 142 Mass. 586 .. . 581, 1141 Kittredge v. Martin, 141 Mass. 410 . . . . 587 (Martin v.) 144 Mass. 13 n. . . 375, 1061 V. North Brookfield, 138 Mass. 286 974, 982 Kittridge (Colburn v.) 131 Mass. 470 . . . 1086 Klemm (Worthington v.] 144 Mass. 167 . 1124 Klucken (Krause v.) 135 Mass. 482 ... 815 Knapp V. Knapp, 134 Mass. 353 . . 311, 584, 886 Kneeland v. Moore, 138 Mass. 198 . . . 685, 848 Kneil v. Egle&ton, 140 Mass. 202 .... 526 Knights of Honor (Karcher i;.) 137 Mass. 368 110 Knowles v. Boston, 129 Mass. 551 733, 965, 967, 1141 (Thomas u.) 128 Mass. 22 .... 230 Knowlton v. Moore, 136 Mass. 32 . . V. Sanderson, 141 Mass. 323 ... 1021 Knox (Ridley v.) 138 Mass. 83 41, 623, 626, 753, 1051 Korbe v. Barbour, 130 Mass. 255 ... . 784 Kramer (Ayling v.) 133 Mass. 12 . 193, 261, 440 D. Carter, 1.36 Mass. 504 ... . 327, 361 Krause v. Klucken, 135 Mass. 482 ... . 815 Krebs v. Olmstead, 137 Mass. 504 ... . 636 Krulevitz v. Eastern Railroad, 140 Mass. 673 646, 840 V. Eastern Railroad, 143 Mass. 228 . 648, 803. Kyle (Gormley v.) 137 Mass. 189 232, 970, 1050 Kvte V. Commercial Union Assurance Co., 144 Mass. 43 . . . 557, 560, 564, 1141 L. Ladd (Barnes v.) 130 Mass. 557 ..... . 811 (Brown v.) 144 Mass. 310 ... . 126 V. Noyes, 137 Mass. 151 263 'Lagorio (Commonwealth v.) 141 Mass. 81 162, 532 Laliey (Stone v.) 133 Mass. 426 . . . . 62, 598 Lake Shore & Michigan Southern Railroad (Graves v.) 137 Mass. 33 . . 169, 836 Lally (Brigham v.) 130 Mass. 486 ... . 776 Lamb v. Old Colony Railroad, 140 Mass. 79 442, 727 (Slater Woollen Co. v.) 143 Mass. 420 252, 877 V. Smith, 132 Mass. 574 486 (Sohier v.) 134 Mass. 275 ... . 10.S3 Lambert (Fairbanks v.) 137 Mass 373 . . 107 La Mont v. Fullam, 133 Mass. 583 .... 758 Lamper (Pierce B.) 141 Mass. 20 .... 961 Lamson (Morrill v.) 138 Mass. 115 90, 256, 870, 886, 1142, 1143 (Payson «.) 134 Mass. 593 . . .349,398 (Pratt V.) 128 Mass. 628 ... . 129, 513 Lane (Burns i;.) 138 Mass. 360 994 . ( Hamilton u.) 138 Mass. 368 . 626,1140 (Morrill «.) 136 Mass. 93 763 Lanesborough v. Berkshire County Com- missioners, 131 Mass. 424 . . 958, 963 Lang (White v.) 128 Mass. 598 ... . 315, 641 Langdon v. Palmer, 133 Mass. 413 .... 73 V. Stewart, 142 Mass. 576 .... 967 Langewald (Smith v.) 140 Mass. 205 . . 322, 674 Langford v. Boston & Albany Railroad, 144 Mass. 431 463,648,732 Xangley v. Chapin, 134 Mass. 82 . 192, 193, 261, 280, 429, 738, 965 (Putnam w.) 133 Mass. 204 . . .648,983 (Sullivan v.) 128 Mass. 235 . . 84, 103, 1036 Langmaid v. Higgins, 129 Mass. 353 .. . 149 Lapointe v. Middlesex Railroad 144 Mass. 18 947 Lappen v. Gill, 129 Mass. 349 .... 77, 262 Larkin v. Boston, 128 Mass. 521 1106 Lamed v. Wheeler, 140 Mass. 390 790, 984, 1056 Larrabee v. Peabody, 128 Mass. 561 . . . 977 Lathrop (Nash v.) 142 Mass. 29 953 V. Page, 129 Mass. 19 . . . .6, 226, 776 Lavery v. Egan, 143 Mass. 389 . 291, 300, 1139 Lavonsair (Commonwealth v.] 132 Mass. 1 . 517 Lawless v. Connecticut River Railroad, 136 Mass. 1 652, 662 tt. Reagan, 128 Mass. 592 ... . 43 Lawrence v. Batcheller, 131 Mass 504 . 197, 198 (Chandler v.) 128 Mass. 213 . . 160, 824 1199 TABLE OF CASES. 1200 Lawrence (CofSn v.) 143 Mass. 110 ... 503 (Griffin u.) 135 Mass. 365 . . 378,1068 (Kenady v.) 128 Mass. 318 ... . 1100 V. Lewis, 133 Mass. 561 27 (Libbey v.) 128 Mass. 215 ■ V. Nahant, 136 Mass. 477 . ■ (Noonan t;.)130 Mass. 161 . (Perkins v.) 136 Mass. 305 ■ (Perkins v.) 138 Mass. 361 • V. Pullman's Palace Car Mass. 1 - (Saunders i;.) 141 Mass. 380 Co., 802 893, 1079 . . 1104 707, 1069 . . 328 144 . . 841 . . 985 ■ (Shepard v.) 141 Mass. 479 487, 985, 986 (Taber v.) 134 Mass. 94 992 (Wilson «.) 139 Mass. 818 . . .442,878 Lawrence Duck Co. (Simmons v.) 133 Mass 298 74,75,82,440 Lawrence Manuf. Co. u. Lowell Hosiery Mills, 129 Mass. 325 987 Laws V. Burt, 129 Mass. 202 813 Lawton v. Savage, 136 Mass. Ill .... 476 Leahey v. Williams, 141 Mass. 345 .... 25 Learned (Colt v.) 133 Mass. 409 3, 14, 454, 752 V. Geer, 139 Mass. 31 699 V. Hall, 133 Mass. 417 440 Learoyd v. Godfrey, 138 Mass. 315 604, 614, 711, 737, 741 (Gove V.) 140 Mass. 524 1000 Leary v. Boston & Albany Railroad, 139 Mass. 580 664,655 ■ -B. Duff, 137 Mass. 147 Leavitt v. Leavitt, 135 Mass. 191 . Le Better (Sears v.) 137 Mass. 374. Leddy i-. Barney, 139 Mass. 394 . Lee (Curnewi-.) 143 Mass. 105 . . (Murphy v.) 144 Mass. 371 Legallee v. Blaisdell, 134 Mass. 473 Leicester (Spencer v.) 140 Mass. 224 Leighton (Commonwealth v.) 140 305 Leland (Foster v.) 141 Mass. 187 . V. Smith, 131 Mass. 358 n. . Lemon v. Newton, 134 Mass. 476 . Lennox < Cutler v.) 137 Mass. 506 . Lenz V. Preseott, 144 Mass. 605 . . Leominster v. Conant, 139 Mass. 384 ■ (Whitney v.) 136 Mass. 25 Leominster Savings Bank (Allen v. Mass. 680 .... (Wliitney v.) 141 Mass. 85 Leonard (Commonwealth v.) 140 Mass. 473 V. Field, 136 Mass. 125 V. Fitchburg Railroad, 143 Mass. 307 I). Hair, 133 Mass. 455 . V. Holyoke, 138 Mass. 78 V. Kingman, 136 Mass. 123 V. O'Reilley, 137 Mass. 138 Stickney, 131 Mass. 541 . 610, 782, Le Piere (Miller v.) 136 Mass. 20 Leshure (Lincoln v.) 132 Mass. 40 . Leslie (Roswell v.) 133 Mass. 689 . Lester (Commonwealth v.) 129 Mass. (Jenkins v.) 131 Mass. 355 . Levin v. Vannevar, 137 Mass. 532 . Lewis V. Austin, 144 Mass. 383 . . V. Boston, 130 Mass. 339 . . V. Browning, 130 Mass. 173 (Lawrence v.) 133 Mass. 661 (Loomis w.) 140 Mass. 208 . V. Manufacturers' Ins. Co., 131 364 825 . 312, 740 872, 1043 .419,868 . . 629 . . 1116 . . 461 . . 770 Mass. . 919 514, 1120 . . 196 . . 893 . . 228 . . .368 894, 966, 1063 . . 1096 ) 134 366 425 842 .272,702 1102 602 268 101 863 588 315 606 . . 196 .400,426 . . 41 . . 1067 . . 213 . . 27 .448,704 Mass. 570 • V. New York Sleeping Car Co., 143 Mass. 267 173,840 . V. Northern Railroad, 139 Mass. 294 2.51, 1144 ■ (Putnam u.) 133 Mass. 264 . . .989,992 Lewis (Shaughnessey V.) 130 Mass. 355 276, 701, 1138 Leyland v. Pingree, 134 Mass. 367 . . 438, 870 (Pingree v.) 136 Mass. 398 . . . 896, 897 Libbey (Allen v.) 140 Mass. 82 . . . 766, 1117 V. Lawrence, 128 Mass. 215 ... . 802 Libby (Fitzgerald u.) 142 Mass. 235 ... 679 V. Norris, 142 Mass. 246 361 Light V. Merriam, 132 Mass. 283 ... . 106 Lime (Higginsv.) 130 Mass. 1 . . . .204,662 Linch V. Sagamore Manuf. Co., 143 Mass. 206 667 Lincoln v. Aldrich, 141 Mass. 342 ... . 1031 (Chamberlain w.) 129 Mass. 70 . . 245 V. Chapin, 132 Mass. 470 965 (Denison w.) 131 Mass. 236 . . . 7,315 V. Eaton, 132 Mass. 63 .... 344, 372 V. Erie Preserving Co., 132 Mass. 129 491 V. Leshure, 182 Mass. 40 . . . . , 538 (Squire v.) 137 Mass. 399 . 361, 370, 54.'?, 546 V. Wood, 128 Mass. 203 .... . 576 Linden Spring Co. (New Haven Horse Nail Co. V.) 142 Mass. 849 .... 342 Lindsey v. Parker, 142 Mass. 682 . 145, 433, 742 Linnehan v. Rollins, 137 Mass. 123 .... 653 Linzee (Fuller K.) 136 Mass. 468 .... 568 Litch V. North British & Mercantile Ins. Co., , 186 Mass. 491 557, 1142 Litchfield (Coburn v.] 182 Mass. 449 . .260, 268 V. Ferguson, 141 Mass. 97 . 152, 277, 310, 820, 991 V. Scituate, 136 Mass. 39 . 149, 474, 502, Literati, The, v. Heald, 141 Mass. 326 . Little V. Little, 131 Mass. 367 ... (Mortland v.) 137 Mass. 339 . . . 146 . 98, 885 950, 1036, 1040 Livermore v. Batchelder, 141 Mass. 179 . . 420 Livingston v. Blanchard, 130 Mass. 341 . . 764 Locke (Elmer w.) 136 Mass. 575 662 Hawks w.) 139 Mass. 205 990 V. Homer, 181 Mass. 93 . . 262, 268, 276 Lockhardt (Commonwealth v.) 144 Mass. 132 672, 1141 Lockhead v. Jones, 187 Mass. 25 .... 810 Lodge V. Weld, 139 Mass. 499 . Loehnberg v. Atherton, 141 Mass. 678 Loker (Conners v ) 134 Mass. 510 Lonergan v. Feck, 136 Mass. 361 Longley v. Cleavland, 133 Mass. 256 Look V, Kenney, 128 Mass. 284 V. Luce, 136 Mass. 249 , V. Luce, 140 Mass. 461 Loomis !). Lewis, 140 Mass. 208 . (Rice V.) 189 Mass 302 Looney v. McLean, 129 Mass. Lord (Fenton v.) 128 Mass. 466 . (\Yarren v.) 131 Mass. 560 Loring v. Brodie, 134 Mass. 453 764, 1189 . . 234 . . 627 91, 382, 383 . . 44, 808 275, 453, 697 ... 455 . .886,951 . . 448, 704 ... 606 ... 603 40, 626, 752 ... 87 96, 188, 1004, 1030 (Eastern Railroad v.) 138 Mass. 381 144 (Peterson v.) 135 Mass. 397 . . . . 1039 V. Worcester & Nashua Railroad, 131 Mass. 469 ... 833 Lothrop V. Adams, 133 Mass. 471 . 424, 616, 619, 620,759,1129 (Forbes v.) 137 Mass. 523 ... . 1006 I'. Highland Foundry Co., 128 Mass. 120 101, 537 V. Thayer, 1.38 Mass. 466 .... 599 Loud (Covell ».) 135 Mass. 41 992 V. Loud, 129 Mass. 14 312 Lovejoy (Hastings v.) 140 Mass. 261 . .217, 601 V. Middlesex Railroad, 128 Mass. 480 28 1201 TABLE OF CASES. 1202 Loveland (SpofEord v.) 130 Mass. 6 ... 434 Lovell (Hammond v.) 133 Mass. 184 . 679, 684, 959 Lovering v. Lovering, 129 Mass. 97 . . . 293 Low V. Welch, 139 Mass. 33 . . . . . . 544 Lowe V. Clinton, 133 Mass. 526 1107 V. Clinton, 136 Mass. 24 1093 V. Harwood, 139 Mass. 133 . . .234, 970 w. Moore, 134 Mass. 259 . . . .475,697 Lowell (Blake w.) 143 Mass. 296 . .1094,1099 (Daniels v.) 139 Mass. 56 . . 728, 1098 (Dean K.) 135 Mass. 55 . . . 149,1082 (GuUine v.) 144 Mass. 491 ... . 1095 (Mannings.) 130 Mass. 21 .... 977 (Marphyw.) 128 Mass. 396 . ... 893 (Saunders v.) 131 Mass. 387 (Shea v.) 132 Mass. 187 (Smith V.) 139 Mass. 336 ■ (Webster v.) 139 Mass. 172 , 160, 892 609, 1099, 1100, 1102, 1103 1090, 1098 753, 1109, 1110 (Webster v.) 142 Mass. 324 1115, 1134 Lowell & Andover Railroad ( Wamesit Power Co. V.) 130 Mass. 455 . . .421, 832 (Wamesit Power Co. v.) 139 Mass. 173 951 Lowell Eleutric Light Corporation ( Quinn v.) 140 Mass. 106 ... . 738, 941, 981 (Quinn v.) 144 Mass. 476 ... 738, 942 Lowell Hosiery Mills (Lawrence Manuf. Co. «.) 129 Mass. 325 .... 987 Lowery v. Caldwell, 139 Mass. 88 .... 177 (Farnsworth v.) 134 Mass. 435, 512, 992 Luby (Eagan v.) 133 Mass. 543 . . 91, 440, 1037 Lucas i: Morse, 139 Mass. 59 822 V. Wileox, 135 Mass. 77 . . . 269, 1142 Luce V. Dexter, 135 Mass. 23 414, 585, 949, 1047 (Look w.) 136 Mass. 249 . .... 455 (Look I). ) 140 Mass. 461 . . . 886,951 (Nevada Bank i>.) 139 Mass. 488 . . 125 Lucier v. Marsales, 133 Mass. 454 .... 598 Luddy (Commonwealth v.) 143 Mass. 563 . 911, 916, 921 Ludlow Manuf. Co. (Dwight v.) 128 Mass. 280 223, 1141 (Rogers v.) 144 Mass. 198 .... 664 Lunenburg !!..Shirley, 132 Mass, 498 . 769,1138 L'Union St. Joseph (Genest v.) 141 Mass. 417 Ill Luscomb (Commonwealth v.) 130 Mass. 42 . 669 Lyman v. Bond, 130 Mass. 291 . . 70, 101, 198 V. Hampshire, 138 Mass. 74 . 1102, 1107 V. Hampshire, 140 Mass. 311 159, 259, 712 (Huntington v.) 138 Mass. 205 . . 281 V. Lyman, 133 Mass. 414 ... 13, 489 Lynch v. Coffin, 131 Mass. 31 1 424 V. Crosby, 134 Mass. 313 . . 178, 933 V. Dodge, 130 Mass. 458 .. . . 510 V. Peabody, 137 Mass. 92 .... 441 Lynde v. Brown, 143 Mass. 337 . . 964, 1117 V. Newark Ins. Co., 139 Mass. 57 . . 559 Lynes (Commonwealths.) 142 Mass. 577 5,395, 528, 1129 Lynn (Miles v.) 130 Mass. 398 .. . 1100, 1102 (Oliver!).) 130 Mass. 143 .... 967 Osgood V.) 130 Mass. 335 . . 1, 14, 1088 ( Sargent V.) 138 Mass. 599 . . . 1108 Lynn & Boston Railroad (Holland v.) 144 Mass. 425 946 (Osgood y.) 130 Mass. 492 .... 944 (Wills u.) 129 Mass. 351 . . 171,717 Lynn Bank v. Smith, 132 Mass. 227 . 32, 97, 121 Lynn Workingmen's Aid Association v. Lynn, 136 Mass. 283 959 Lyon V. Cambridge, 136 Mass. 419 . . 1092, 1105 V. Cunningham, 136 Mass. 532 . . . 599 V. Manning, 133 Mass. 439 . . 132, 408 Lyons (Arlington v.) 131 Mass. 328 . . 39, 772 V. Cambridge, 131 Mass. 571 .. . 435 !'. Cambridge, 132 Mass. 534 .. . 1101 V. Bicker, 128 Mass. 452 91 M. Maeaig's case, 137 Mass. 467 810 McAvoy V. Wright, 137 Mass. 207 409, 484, 728, 753, 793 MeCabe v. Cambridge, 1.34 Mass. 484 i099, 1107 McCann v. Tillinghast, 140 Mass. 327 . . 791 McCarthy v. Boston, 135 Mass. 197 . 161, 978 V. Henderson, 138 Mass. 310 . 533, 856 McCarty (Commonwealth v.) 141 Mass. 420 117 (Sloan !!.) 134 Mass. 245 .... 119 McConnell v. Kelley, 138 Mass. 372 -369, 538, 867 McCormick (Commonwealth v.) 130 Mass. 61 688 (Eliot u.) 141 Mass. 194 375 (Eliot V.) 144 Mass. 10 204, 375, 587, 1061 V. Fiske, 138 Mass. 379 375 (Sherley v.) 135 Mass. 126 . . 439, 876 V. Stowell, 138 Mass. 431 395, 419, 696, 1137 McCowan v. Donaldson, 128 Mass. 169 . . 622 McCoy V. Metropolitan Ins. Co., 133 Mass. 82 29, 440, 566 McCulIow (Commonwealth v.) 140 Mass. 370 931 McDermott v. Boston, ia3 Mass. 349 .. . 659 McDonald (Browne v.) 129 Mass. 66 . 234, 454 (Butchers & Drovers' Bank v.) 130 Mass. 264 238 (Colcord V.) 128 Mass. 470 . . . 271 McDonald v. The Nimbus, 137 Mass. 360 . 630, 631, 1138 V. Willis, 143 Mass. 452 629 McDonnell (Tanseyw.) 142 Mass. 220 . . 364 McDouough V. Metropolitan Railroad, 137 Mass. 210 642, 1142 McDougaU ». Boston, 134 Mass. 149 .. . 1101 McFeely v. Scott, 128 Mass. 16 . . . .43, 4-56 McGaffigan (Williams v.) 132 Mass. 122 . . 475 McGarry (Commonwealth v.) 135 Mass. 553 935 McGeary v. Eastern Railroad, 135 Mass. 363 714 McGee v. Boston Cordage Co., 139 Mass. 445 660 McGivney v. McGivney, 142 Mass. 1-56 . . 593 McGrath (Crombieu.) 139 Mass. 550 . . . 125 McHugh (Barrett v.) 128 Mass. 165 429,438, 488 Mcintosh (Kimball v.) 134 Mass. 362 . . . 321 Mclver I). Estabrook, 134Mas8. 550 . . . 472 McKay (Gleasonw.) 134 Mass. 419 ... 209 McKenna v. Boston, 131 Mass. 143 ... 1077 Mackenzie (Watuppa Reservoiri;.) 132 Mass. 71 136,248,320 McKiernan (Commonwealth v.) 128 Mass. 414 908 McKillop (Harrington v.) 132 Mass. 567 . 907 McKim V. Aulbach, 130 Mass. 481 ... . 450 1203 TABLE OP CASES. 1204 MuKim V. Bartlett, 129 Mass. 226 . . 450, 1025 V. Blake, 132 Mass. 343 .. . 450, 1025 V. Blake, 139 Mass. 593 92,271, 401, 414, 415, 577, 1026 V. Demmon, 130 Mass. 404 . . . . 1025 V. Doane, 137 Mass. 195 1026 V. Harwood, 129 Mass. 75 . . 298, 450 V. Hibbard, 142 Mass. 422 . 1027, 1028, 1032 V. Mann, 141 Mass. 507 637 V. Morse, 130 Mass. 439 508 V. Williams, 134 Mass. 136 ... . 508 McKimble v. Boston & Maine Railroad, 1.39 Mass. 542. . 719,720,839,845,1140 V. Boston & Maine Railroad, 141 Mass. 463 724,845 Mackin v. Boston & Albany Railroad, 135 Mass. 201 659, 660 MoKinney (Jordan v.) 144 Mass. 438 . . . 1135 B.Wilson, 133 Mass. 131 . 286,406,869, 875 Mackintosh (Brookline v.) 133 Mass. 215 . 1064 (Harris v.) 133 Mass. 228 353, 367, 368, 866 (Home Savings Bank v.) 131 Mass. 489 . 213, 221 McLane v. Curran, 133 Mass. 531 ... . 510 McLaughlin v. Cecconi, 141 Mass. 262 . . 324 V. Cowley, 131 Mass. 70 . . 89, 618, 620 (Cowley w.) 137 Mass. 221 . . 586,11.31 (Cowley V.) 141 Mass. 181 85, 434, 642, 973 McLauthlin (Smiley w.) 138 Mass. 363 . 601, 602 !). Wilder, 138 Mass. 393 430 McLean (Looney v.) 129 Mags. 33 .... 603 McMahon (Commonwealth v.) 133 Mass. 394 .... 531 V. Jacobs, 129 Mass. 524 .... 105 V. O'Connor, 137 Mass. 216 . 92, 436, 816 McNeil V. CoUinson, 128 Mass. .313 . ... 928 V. Colliiison, 130 Mass. 167 . . 928, 1140 , W.Kendall, 128 Mass. 245 .... 594 McNulty V. Cambridge, 130 Mass, 275 1 100, 1 101, 1104 Macomber (Godfrey v.) 128 Mass. 188 . . 1038 (Welsh!;.) 130 Mass. 28 n 446 Macy V. China Ins. Co., 135 Mass. 328 . 571, 572 Madden v. Springfield, 131 Mass. 441 1099, 1140 Magee (Commonwealth K.) 141 Mass. Ill . 914 Maglathlin v. MaglathUn, 138 Mass. 299 . 313 Maguire v. Park^ 140 Mass. 21 473 V. Sturtevant, 140 Mass. 258 .. . 151 Mahon (Phipps D.) 141 Mass. 471 . . . . S83 Mahoney v. Belford, 1.32 Mass. 393 . . 618, 619 (Commonwealth v ) 134 Mass. 220 . 912 V. County Commissioners, 144 Mass. 469 1083 V. Fitzpatrick, 133 Mass. 151 .. . 120 Mailey (Davis w.) 134 Mass. 588 .... 298 Maine v. Butler, 130 Mass. 196 218 Makely (Commonwealth v.) 131 Mass. 421 . 57 Maiden (Reading v.) 141 Mass. 680 . 634, 775 Mallen v. Boynton, 132 Mass. 443 . . 403, 785 Manchaug Manuf. Co. (St. Andrew v.) 134 ' Mass. 42 67 Manchester (Spooner v.) 133 Mass. 270 . . 94 Manchester & lyawrence Railroad (Swan v.) 132 Mass. 116 ... . 170, 171, 838 Mandeville (Commonwealth v.) 142 Mass. 469 927 Manimon (Commonwealths.) 136 Mass. 456 470 Mann v. Bishop, 1.S6 Mass. 495 219 (Hunt V.) 132 Mass. 63 . . 67, 445, 846 (McKim V.) 141 Mass. 507 ... . 637 (Pierce v.) 130 Mass. 14 . . . 493, 549 V. WilUams, 143 Mass. 394 ... . 407 Manners v. Haverhill, 135 Mass. 165 379, 417, 796; 983, 989 Manning (Amy y.) 144 Mass. 153 .... 862 V. Bitch. 138 Mass. 273 . . V. Lowell, 130 Mass. 21 . . (Lyon w.) 133 Mass. 439 . . (Murphy v.) 134 Mass. 488 . V. Nettleton, 140 Mass. 421 Maunville Co. v. Worcester, 138 Mass, Mansfield v. Dyer, 131 Mass. 200 V. Dyer, 133 Mass. 374 . V. Edwards, 136 Mass. 15 V. Gordon, 144 Mass. 168 V. Shepard, 134 Mass. 620 Manufacturers' Bank v. Perry, 233 . . 977 132, 408 . . 198 870, 1137 89 . 674, 1065 . . 83,486 445, 447, 682 77, 400, 955 357, 534, 545 . . . 1112 144 Mass. 313 .. 578,637 V. Thompson, 129 Mass. 438 . . 97, 133 Manufacturers' Ins. Co. (Gibson v.) 144 Mass. 81 26, 1146 (Lewis !J.) 131 Mass. 364 570 (Oakes i-.) 181 Mass. 164 . . 657, 1141 (OakesD.) 135 Mass. 248 Marble «. Chapin, 132 Mass. 225 Marcus v. Boston, 136 Mass. 350 .... Market Bank (Wyeth w.) 1.32 Mass. 697 . . Market National Bank v. Belmont, 137 Mass. 407 964,1137 564 616 902 127 Marple v. Burton, 144 Mass. 79 Marrow (King v.) 130 Mass. 277 .... Marsales (Lucier v.) 133 Mass. 454 . . . Marsh v. Dedham, 137 Mass. 235 .... V. Haverhill Aqueduct Co., 134 Mass. 106 (RolHns B.) 128 Mass. 116 . (Upham V.) 128 Mass. 546 . Marshall (Adams v.) 138 Mass. 228 (French v.) 136 Mass. 564 . V, Jaquith, 134 Mass. 138 . (Packard v.) 138 Mass. 301 . 812 255 698 979 321 215, 508 . . 1087 282, 737 496, 533 316, 624 . . 1015 . . 1037 140 . . 6 537, 1140 i>. Drinan, 128 Mass. 516 261 V. Gleason, 139 Mass. 183 737, 938, 1072 (Grundy v.) 143 Mass. 279 581, 597, 605 (Kittredgeo.) 141 Mass. 410 ... 587 V. Kittredge, 144 Mass. 13 n. . 375, 1061 V. Martin, 131 Mass. 647 . 193, 304, 1138 V. Smith, 131 Mass. 510 696 V. Witherspoon, 135 Mass. 175 786, 937 Marvel v. Babbitt, 143 Mass. 226 ... . 1037 Mason (Commonwealth v.) 135 Mass. 565 . 1132 V. Davol Mills, 132 Mass. 76 ... 247 (Flagg V.) 141 Mass. 64 . . . 153, 408 Marston (Sheehan B.) 132 Mass. 161 . Martha's Vineyard Railroad (Osborn b.) Mass. 649 Martin (Commonwealth b.) 130 Mass. 465 ■ B. Mason, 140 Mass. 63 • B. Smith, 131 Mass. 510 Massachusetts Benefit Association (Cross- man b.) 143 Mass. 435 .... Massachusetts Charitable Association (Rich- ardson b.) 131 Mass. 174 . . . Massachusetts General Hospital v. Fair- banks, 129 Mass. 78 . 318 595 113 245 536 ■ B. Fairbanks, 132 Mass. 414 235, 508, 636 Massachusetts Ins. Co. (Norris b.) 131 Mass. 294 567,576 — : (Whiting b.) 129 Mass. 240 . . . 27, 667 Massachusetts Loan Co. b. Fitchburg Rail- road, 143 Mass. 318 118 Massachusetts Society, &c. b. Boston, 142 Mass. 24 962,1137 Massasoit Packing Co. (Byrne b.) 137 Mass. 313 29, 1048 Masterson (Robinson v.) 136 Mass. 560 . . 270 1205 TABLE OF CASES. 1206 Mather v. American Express Co., 138 Mass. 66 270 Mathes (Dearborn v.) 128 Mass. 194 . 420, 402 Mattey v. Whittier Machine Co., 140 Mass. 337 714 Matthews (Commonwealth v.) 129 Mass. 485 1131 :- (Commonwealth u.) 129 Mass. 487 . 912 «. Matthews, 141 Mass. 511 . . . . 1121 — V. Westhorough, 131 Mass. 521 . . 980 u. Westborough, 134 Mass. 555 398, 404, 981 Matthewson v. Moulton, 135 Mass. 122 Maxam (Buffington v.) 140 Mass. 557 (Wilbur K.) 133 Mass. 541 . . Maxwell v. Clarke, 139 Mass. 112 V. Cochran, 136 Mass. 73 ■ V. Hosmer, 138 Mass. 207 . 1000 . 352 . 586 . 346 282 May V. Gates, 137 Mass. 389 . . . 373, 689, 693 V. Hammond, 144 Mass. 151 . 807, 1141 V. Ward, 134 Mass. 127 491 Mayhew v Durfee, 138 Mass. 684 . . 177, 681 V. Pentecost, 129 Mass. 332 . . . 67, 542 Mayo (Baker v.) 129 Mass. 517 .. . 373, 759 V. County Commissioners, 141 Mass. 74 259 V. Preston, 131 Mass. 304 ... . 896 V. Springfield, 136 Mass. 10 ... . 1079 V. Springfield, 138 Mass. 70 . . 274, 990 (Walker!),) 143 Mass. 42 . , . 8,192 Mayor & Aldermen of Fitchburg (Brown v.) 128 Mass. 282 890 (Fairbanks v.) 1.32 Mass. 42 . 178, 892 Mayor & Aldermen of New Bedford (Cor- nell u.) 1.38 Mass. 588 ... . 1080 Mayor & Aldermen of Northampton (Attor- ney General !>.) 143 Mass. 589 179, 803 Mayor & Aldermen of Somerville (Ayer v.) . 143 Mass. 585 895 Mayor & City Council of Boston (Boston Water Power Co. v.) 143 Mass. 546 749 Maym of New Bedford (Attorney General V.) 128 Mass. 312 648 Mead v. Acton, 139 Mass. 341 209, 592, 900, 974 (Commonwealths.) 140 Mass. 300 . 918 Mears v. Dole, 135 Mass. 508 8, 363 Mechanical Refrigerating Co. (Hyde «.) 144 Mass. 432 271 Mechanics' Bank v. Robins, 134 Mass. 331 . 121 Medbery (Roberts !!.) 132 Mass. 100 ... 408 Mellen (Grant «.) 134 Mass. 335 272 Meins (KelleytJ.) 135 Mass. 231. . . .290,847 Melvin v. Bird, 131 Mass. 561 . 46, 47, 142, 256 Mercer (Simpson v.) 144 Mass. 413 ... 12 (Williams !).) 139 Mass. 141 ... 10 (Williams y.) 144 Mass. 413 ... 9 Merchants (Cowles v.) 140 Mass. 377 395, 432, 730, 1133 Merchants' Bank v. Bank of the Common- wealth, 139 Mass. 513 ... . 99 (Hinckley v.) 131 Mass. 147 . . 133, 382 ». Moulton, 143 Mass. 543 . . .369,373 V. Thompson, 133 Mass. 482 .. . 187 Merchants' Ins. Co. v. Abbott, 131 Mass. 397 3, 66, 78, 107, 781, 752 Merchants' Manuf. Co. (Curran v.) 130 Mass. 374 659 Merchants' National Bank (Innerarity v.) 139 Mass. 832 34 Merchants' Transportation Co. (Edmunds V.) 135 Mass. 283 169 (Steamship Bulgarian Co. v.) 135 Mass. 421 217 Meriara v. Brown, 128 Mass. 391 .... 828 Merriam (Commonwealth v.) 136 Mass. 4S3 935 (Light V.) 132 Mass. 283 . . . . 106 ; V. Goss, 139 Mass. 77 . 369^.370, 693, 694 Merrick Thread Co. (Atkins v.) 142 Mass. 431 •. ... 656 Merrifield (Cook v.) 139 Mass. 139 . . . 144,742 (Denny v.) 128 Mass. 228 . 102, 105, 106 Merrill (Brown v.) 131 Mass. 324 ... . 296 V. Eastern Railroad, 189 Mass. 238 726, 839, 1140 V. Eastern Railroad, 139 Mass; 252 712, (French v.) 132 Mass. 625 .... ' 637 (Potter ».) 143 Mass. 189 .... 308 V. Preston, 136 Mass. 461 199, 1011, 1139 (Sloan w.) 135 Mass. 17 . . . .391,873 Merrimack River Navigation, &c. Co. (Wal- lace V.) 134 Mass. 95 640 Messenger v. Dennie, 137 Mass. 197 .. . 714 V. Dennie, 141 Mass. 3.35 .... 715 Meserre v. Commonwealth, 137 Mass. 109 478, 1137,1138 Metacomet Bank (Dickinson v.) 130 Mass. 132 69, 538 Metacomet Manuf. Co. (Galhgan v.) 143 Mass. 527 12 Metcalf u. Framingham Parish, 128 Mass. 370 301,460 V. Williams, 144 Mass. 452 . . .27 Metropolitan Ins. Co. (McCoy v.) 133 Mass. 82 29,440,566 Metropolitan National Bank (Holden v.] 138 Mass. 48 10 Metropolitan Railroad (McDonough v.) 137 Mass. 210 642,1142 (Smith ti.) 137 Mass. 61 1132 Middleborough v. Plympton, 140 Mass. 325 . 770 Middlesex Co. (Coburn v.) 142 Mass. 264 . 675 Middlesex County Commissioners (Mahoney ».) 144 Mass. 459 1083 Middlesex Electric Light Co. (Quinn ».) 140 Mass. 109 941, 1060 Middlesex Railroad (Jordan v.) 138 Mass. 425 274 (Lapointe v.] 144 Mass. 18 ... 947 (Love joy v.) 128 Mass. 480 ... . 28 (Valentine v.) 137 Mass. 28 . . . 726, 816 (White y.) 135 Mass. 216 218 Miles V. Lynn, 130 Mass. 398 ... . 1100, 1102 (Stevens y.) 142 Mass. 571 . . .384,404 Milford V. Commonwealth, 144 Mass. 64 962, 1138 (Greene v.) 139 Mass. 69 1063 V. Uxbridge, 130 Mass. 107 768, 771, 1138, 1140 Millard (Robinson v.) 133 Mass. 236 .. . 450 Miller (Chapman v.) 128 Mass. 269 275,521, 1139 (Chapman y. 1130 Mass. 289 ... 685 y. Le Piere, 136 Mass. 20 .... 863 V. Morgan, 143 Mass. 26 . . . 870, 1052 r- V. Shay, 142 Mass. 598 896 Miller's River National Bank v. Jefferson, 138 Mass. Ill 530 Milligan v. Drury, 130 Mass. 428 .... 957 Milton (Dedham v.) 136 Mass. 424 . . . 769, 773 (Russell V.) 133 Mass. 180 ... . 1005 (Smith V.) 133 Mass. .369 . . 48, 744, 788 Minot y. Boston, 142 Mass. 274 .. . 147, 1072 r. Harris, 132 Mass. 528 .. . 290, 1139 V. Norcross, 143 Mass 326 . . . 460 V. Taylor, 129 Mass. 160 . . . 295, 352 Missionary Society v. Chapman, 128 Mass. 265 181, 289, 1137 Mistier?). O'Grady, 132 Mass. 139 . ... 735 Mitchell V. Hart, 132 Mass. 297 613 V. Worcester, 129 Mass. 525 . 612, 1101 Moebs V. Wolfisohn, 143 Mass. 130 . . . 689, 742 Moinehan (Commonwealth i>.) 140 Mass. 463 1134 Molter (Commonwealth v.) 142 Maes. 533 915, 917 1207 TABLE OP CASES. 1208 Monks (Bradford v.) 182 Mass. 405 Monroe (Twoinbly v.) 136 Mass. 464 . . 814 614, 616, 989 Montague (Boston & Fairhaven Iron Works V.) 135 Mass. 319 75, 79, 81, 223, 232, 286 Mooar v. Harvey, 128 Mass. 219 . . . . 316, 613 Moody (Commonwealth v.) 143 Mass. 177 . 582 Moouey (Allen w:) 130 Mass. 155 . . .429,610 V. Howard Ins. Co., 138 Mass. 375 565, 1043, 1044 V. Salem, 130 Mass. 402 1101 Moore (Blodgettr.) 141 Mass. 75 . . . .1125 (Bush V.) 133 Mass. 198 547 (Commonwealth v.) 130 Mass. 45. . 155 (Commonwealth v.) 143 Mass. 136 . 590, 1055 (Houghton V.) 141 Mass. 437 .. . 697 (Kneeland v.) 138 Mass. 198 . 685, 848 (Knowlton v.) 136 Mass. 32 (Lowe V.) 134 Mass. 259 . (Orcutt a.) 134 Mass. 48 (Smith V.) 129 Mass. 222 (Smith V.) 134 Mass. 405 V. Spiegel, 143 Mass. 413 V, Stinson, 144 Mass. 594 (Tobey v.) 130 Mass. 448 Moors V. Albro, 129 Mass. 9 . . 475, 697 276, 606, 701, 1138 ... 79 22 68,38i, 639, 996 .... 1002 194, 326, 780, 1137 102, 103, 256, 377, 677 V. Boston Street Commissioners, 134 Mass. 481 962 (Norway Plains Savings Bank v.) 134 Mass. 129 267, 505 V. Street Commissioners, 134 Mass. 431 962 (ThacherK.) 134 Mass. 156 ... 34 Morain v. Devlin, 132 Mass. 87 536 Moran (Commonwealth v.) 130 Mass. 281 502, 1128 V. Goodwin, 130 Mass. 158 . 203, 907, 934 Moreland v. Boston & Providence Railroad, 141 Mass. 31 720 Morewood v. Wakefield, 133 Mass. 240 . . 315 Morgan v. Curley, 142 Mass. 107 .. . 63, 812 (Miller v.) 143 Mass. 25 . (Osborne v.) 130 Mass. 102 — , (Osborne v.) 137 Mass. 1 870, 1052 . . 667 . . 653 Morley v. Chase, l43 Mass. 396 463 Moriarty (Commonwealth v.) 135 Mass. 540 155 Morrill (Harding v.) 136 Mass. 291 578, 579, 732 V. Lamson, 138 Mass. 115 90, 256, 870, 886, 1142, 1143 V. Lane, 136 Mass. 93 753 . Phillips, 142 Mass. 240 . V. Spurr, 143 Mass. 257 . . V. Wiseman, 134 Mass. 252 n. Morris V. Brightman, 143 Ma.ss. 149 V. Farrington, 133 Mass. 466 , 296 . 758 . 257, 821 745 1, 14, 438, 495 (Pease v.) 138 Mass. 72 443 Morrison (Commonwealth v.) 134 Mass. 189 421, 731 V. Morrison, 136 Mass. 310 312, 867, 952, 1058 V. Morrison, 142 Mass. 361 ... . 314 Morse v. Adams, 130 Mass. 585 n 750 V. Aldrieh, 130 Mass. 578 . . , 445, 846 V. Bassett, 132 Maes. 502 .... 682 V. Chamberlin, 144 Mass. 406 .. . 123 V. Curtis, 140 Mass. 112 681 V. Dayton, 128 Mass. 451 . . 47, 807 (Dodge u.) 129 Mass. 423- .... 352 V. Elms, 131 Mass. 151 .... . 583 (Foster v.) 132 Mass. 354 ... . 207 Morse ».HilI, 136 Mass. 60 363, 365, 592, 1030, 1084 (Lucas V.) 139 Mass. 59 . . (McKim V.) 130 Mass. 439 . (Nutt V.) 142 Mass. 1 . . V. Stearns, 131 Mass. 389 . (Page V.) 128 Mass. 99 . . (Quinn v.) 180 Mass. 317 . (Sherburne v.) 132 Mass. 469 V. Stearns, 131 Mass. 389 289, (White ».) 139 Mass. 162 . . V. Worcester, 139 Mass. 389 . (Zoller V.) 130 Mass. 267 . . Mortland v. Little, 137 Mass. 339 . 822 . 508 . 601 . 1121 . 533 . 765 . 1028 851, 874 590 356 382 950, 1036, 1040 182, 372, 1032, 1033 596, 1141 Morville v. Fowle, 144 Mass. 109 Moseley v. Allen, 138 Mass. 81 Mosher (Commonwealth v.) 134 Mass. 226 Moulton V. Gage, 138 Mass. 390 . . . . (Matthewson v.) 135 Mass. 122 . . (Merchants' Bank v.) 143 Mass. 543 531, 590 654 868 369, 373 V. Newburyport Water Co., 137 Mass. 163 1065, 1070 (Stetson V.) 140 Mass. 697 ... 948 Mount Hope Iron Co. v. Dearden, 140 Mass. 430 756, 1059 Mount Washington (Boston v.) 139 Mass. 15 770, 1137, 1138 Moyle V. Drake, 141 Mass. 238 646 Moynihan v. Whidden, 143 Mass. 287 615, 708 Mudge V. Parker, 139 Mass. 153 .... 165 Mugridge (Wass v.) 128 Mass. 394 ... 900 Muhlig V. Fiske, 131 Mass. 110 91, 262, 268, 277 Muldoon V. Muldoon, 133 Ma«s. Ill . . . 851 (Sweeney v.) 139 Mass. 304 . 455, 1117 Mullen V. Brown, 138 Mass. 114 .... 462 MuUer (Ulsch v.) 143 Mass. 379 .... 185 MuUett (Way v.) 143 Mass. 49 690 Munroe (Norrisu.) 128 Mass. 386 . . . .2,48 (Sias II.) 134 Mass. 153 386 Munsey v. Butterfield, 133 Mass. 492 . . 231 Murdock v. Boston & Albany Railroad, 138 Mass. 15 172, 272, 838 V. Boston & Albany Railroad, 137 Mass. 293 839 (Brown v.) 140 Mass. 314 ... . 138 Murley v. Roche, 130 Mass. 380 .... 717 Murphy (Barrett v.) 140 Mass. 133 151, 426, 817, 849, 1130 II. Boston & Albany Railroad, 133 Mass. 121 428, 722 V. Galloupe, 143 Mass. 123 . . 88, 705 (King V.) 140 Mass. 254 323 V. Lee, 144 Mass. 371 ..... 1116 V. Lowell, 128 Mass. 896 .... 893 V. Manning, 134 Mass. 488 V. Stanley, 136 Mass. 133 V. Walker, 131 Mass. 341 V. Webster,' 131 Mass. 482 V. Welch, 128 Mass. 489 ... 198 . 418, 425 48, 509 . 160, 802 248, 276, 680, 818 Murray v. Chase, 134 Mass. 92 89 (Commonwealth v.) 135 Mass. 630 166, 581, 1189 (Commonwealth v.) 138 Mass. 608 931 V. Fitchburg Railroad, 130 Mass. 99 866, 988, 1137 (Harvey v.) 136 Mass. 377 ... . 94 V. Nelson Lumber Co., 143 Mass. 250 244 V. Riley, 140 Mass. 490 . ... 476 V. Wood, 144 Mass. 195 .. . 512, 641 Mutual Life Ins. Co. of N. Y. v. Allen, 134 Mass. 889 859 Myers (Boston Loan Co. v.) 143 Mass. 446 442, 866 1209 TABLE OF CASES. 1210 N. Nahant (Lawrence v.) 136 Mass. 477 . 893, 1079 Nantasket Beach Railroad (Cushing v.) 143 Mass. 77 384 Nantasket Co. (Bice v.) 140 Mass. 256 . . 627 Nasli (Coramop wealth v.) 135 Mass. 541 . 425, 729,912,1130 (Hayes v.) 129 Mass. 62 107 V. Lathrop, 142 Mass. 29 953 Nashua & Lowell Railroad (Boston & Lowell Railroad v.) 139 Mass. 463 . . 52, 55 w. Paige, 135 Mass. 145 . . 76,613,1057 National Bank of Commerce v. Huntington, 129 Mass. 444 253 National Bank of the Commonwealtli (Talbot V.) 129 Mass. 67 80 National Bank of North America (National Exchange Bank v.) 1.32 Mass. 147 97 National Bank of the Republic (Dana v.) 132 Mass. 156 183 National Exchange Bank v. National Bank of North America, 132 Mass. 147 97 National Life Ins. Co. v. Pingrey, 141 Mass. 411 352, 569 (Pingrey v.) 144 Mass. 374 . . . 569, 1002 V. Salisbury, 130 Mass. 303 . . 360, 700 National Market Bank ( Wyeth v.) 132 Mass. 597 127 National Rubber Co. v. Sweet, 129 Mass. 36 387 National Union Bank v. Copeland, 141 Mass. 257 72, 1137 Naumkeag Steam Cotton Co. (Woods v.) 134 Mass. 357 603 Nay (Hatt v.) 144 Mass, 18li . . . . 389, 658 Nealon v. Henry, 131 Mass. 153 591 Neat (Coolidge v.) 129 Mass. 146 . . 154, 267 Needham v. Wellesley, 139 Mass. 372 . 886, 987 Nefus (Commonwealth v.) 135 Mass. 5.33 17, 417 Nelson v. Winchester, 133 Mass. 435 . . . 546 Nelson Lumber Co. (Murray v.) 143 Mass. 250 244 Neponset Meadow Co. o. Tileston, 133 Mass. 189 206 Nettleton (Manning v.) 140 Mass. 421 . 870, 1137 Nevada Bank v. Luce, 139 Mass. 488 .. . 126 Neveau (Owen v.) 12d Mass. 427 .. . 88, 446 Nevins (Burnham v.) 144 Mass. 88 ... . 330 Newark Ins. Co. (Lynde v.) 139 Mass. 57 . 559 New Bedford (Wilcox v.) 140 Mass. 570 . 1084 ■ V. Taber 135 Mass. 162 .. . 1078, 1079 (Davis V.) 133 Mass. 549 1067 (Hamlin «.) 143 Mass. 192 . . 738, 1083 (Pierce v.) 129 Mass. 534 .... 1092 (Taber y.) 135 Mass. 162 . . 1078, 1079 (Sisson V.) 137 Mass. 255 . . 178, 1086 (Worden v.) 131 Mass. 23 . 23, 973, 977, 983 New Bedford Institution for Savings (Brown V.) 137 Mass. 262 70, 882 (Sullivan v.) 140 Mass. 260 . . 587, 883 New Bedford, Mayor of (Attorney General B.) 128 Mass. 312 648 New Bedford, Mayor, &o. of (Cornell v.) 138 Mass. 688 1080 New Bedford Savings Bank (Ellison v.) 130 Mass. 48 761 (Sherman v.) 138 Mass. 581 ... 499 (Stafford !J.) 132 Mass. 315 . ... 947 (Tallman v.) 138 Mass. 330 . . 699, 883 B. Union Mill Co., 128 Mass. 27 . . 102 New Bedford Savings Institution (Gerrish «.) 128 Mass. 159 881 V. Hathaway, 134 Mass. 69 . . . . 639 New Bedford Street Railway v. Acushnet Street Railway, 143 Maes. 200 . 945, 946, 1140, 1142 Newbury (Harris;;.) 128 Mass. 321 . 1088,1092, 1100 Newburyport (Cole v.) 129 Mass. 594 . . 42, 977 V. Worthington, 132 Mass. 510 . . 769 Newburyport Horse Railroad (Kelley ».) 141 Mass. 496 .. . 249, 260, 945, 1069 (St. James Parish v.) 141 Mass. 500 . 244 Newburyport Water Co. (Moulton v.) 137 Mass. 163 1065, 1070 Newell B. Borden, 128 Mass. 31 1053 V. Wiliiston, 138 Mass. 240 .. . 241 New England Commercial Travellers' Asso- ciation (Addison v.) 144 Mass. 591 115, 1139, 1140 New England Life Ins. Co. (Bowditeh v.) 141 Mass. 292 243, 6-52 V. Phillips, 141 Mass. 635 . . 332, 1032 New England Trust Co. v. Eaton, 140 Mass. 632 166, 822, 1036 Newhall v. Hamilton, 128 Mass. 463 .. . 23 (Ingalls V.) 139 Mass. 268 . . 152, 581 ■■ V. Kingsbury, 131 Mass. 445 . . . 875 New Hampshire Ins. Co. (Wilson w.) 140 Mass. 210 214 New Haven & Northampton Co. v. Campbell, 128 Mass. 104 . 170, 439, 612, 787, 836 (Childs V.) 133 Mass. 253 .... 832 (Childs V.) 136 Mass. 570 . . 258, 1139 (Copley «.) 136 Mass. 6 723 (Fitchburg Railroad v.) 134 Mass. 547 834 (Keith y.) 140 Mass. 175 663 New Haven Horse Nail Co. v. Linden Spring Co., 142 Mass. 349 342 Newmarket Bank v. Cram, 131 Mass. 204 . 444 New Metallic Packing Co. (Tripp v.) 137 Mass. 499 . . . . 224, 406, 409, 614 New Salem v. Eagle Mill, 138 Mass. 8 . 674, 737, 819, 974 Newsome v. Davis, 133 Mass. 343 . . 186, 188 Newton (Aaton v.) 134 Mass. 507 . . 1092, 1104 V. Belger, 143 Mass. 598 162 V. Devlin, 134 Mass. 490 . . . 141, 269 V. Feeley, 130 Mass. 12 . . . 771, 1141 (James v.) 142 Mass. 366 . 357, 546, 648 (Lemon v.) 134 Mass. 476 ... . 893 (Porter?).) 133 Mass. 56 . . . .40,891 (Sanger w.) 134 Mass. 308 .... 40 (Stanchfield v.) 142 Mass. 110 . 428, 429, 638, 1066, 1142 V. Seaman's Friend Society, 130 Mass. 91 1126 (Wright V.) 130 Mass. 552 . . 50, 1140 Newton Board of Health (Grace v.) 135 Mass. 490 137, 138, 178 New York Central Sleeping Car Co. (Walton V.) 139 Mass. 656 664 New York Express Co. v. Traders' Ins. Co., 132 Mass. 377 7, 653 V. Traders' Ins. Co., 135 Mass. 221 . 431 New York Mutual Ins. Co. v. Allen, 138 Mass. 24 199,668 New York Mutual Life Ins. Co. v. Allen, 134 Mass. 389 859 1211 TABLE OP CASES. 1212 New York & New England Railroad (Child ti.) 129 Mass. 170 700 V. Drury, 133 Mass. 167 65 (Fisher v.) 135 Mass. 107 937, 989, 1112 (Potts K.) 131 Mass. 455 . . . 170,835 V. Sanders, 134 Mass- 53 . . 170, 836 (Smith u.) 142 Mass. 21 . . . 819,1115 (Tyler v.) 137 Mass. 238 .... 724 New York Sleeping Car Co. (Lewis v.) 143 Mass. 267 173, 840 Nichols V. Allen, 130 Mass. 211 .. . 181, 1002 V. Bishop, 136 Mass. 349 . . . 224, 876 (Commonwealth v.) 134 Mass. 531 . 201, 262 (Douglass V.) 1.33 Mass. 470 ... 256 (Freeman w.) 138 Mass. 313 ... 533 V. James, 130 Mass. 589 . . 37, 762, 787 (King u.) 138 Mass. 18 V. Nichols, 136 Mass. 256 V. Rogers, 139 Mass. 146 V. Smith, 143 Mass. 455 . Nickerson ». Boston, 131 Mass. 307 (Bruce v.) 141 Mass. 403 V. English, 142 Mass. 267 (Gale V.) 144 Mass. 415 . Piirker v.) 137 Mass. 487 647, 729 124, 318, 525, 1052 363, 364, 1031 542, 1061 209, 734 391, 392 . . 219 82 S 242, '243, 365, 368, 369, 373, 392 V. Swett, 135 Mass. 514 348 Nimbus, The (McDonald v.) 137 Mass. 360 . 6-30, 631, 1138 Nims V. Spurr, 138 Mass. 209 . . 852, 855, 861 (Woodward v.) 130 Mass. 70 . 147, 278 Nonantum Worsted Co. (White v.) 144 Mass. 276 664 Noonan v. Lawrence, 130 Mass. 161 Norcross v. James, 140 Mass. 188 . ■ (Minot V.) 143 Mass. 326 . . . 1104 . . 264 . . 460 . . 1003 494, 550 494, 551 . . 361 Norman v. Towne, 130 Mass. 52 Norris (Bigelow v.) 139 Mass. 12 (Bigelow V.) 141 Mass. 14 (Libbyu.) 142 Mass. 246 .... V. Massachusetts Ins. Co., 131 Mass. 294 567, 576 V. Munroe, 128 Mass. 386 .... 2, 48 North (Sartwell v.) 144 Mass. 188 . . 485, 1140 Northampton (Dietrich v.) 138 Mass. 14 1089, 1140 Northampton, Mayor, &c. of (Attorney Gen- eral V.) 143 Mass. 589 . . 179, 803 Northborough v. County Commissioners, 138 Mass. 263 ....... 1070, 1071 V. Wood, 142 Mass. 551 131 (Worcester v.) 140 Mass. 397 . 384, 415, 775 Nortlibridge (Uxbridge v.) 131 Mass. 454 . 772 North Bridgewater Savings Bank v. Soule, 129 Mass. 528 . 66, 209, 733, 776, 881 North British & Mercantile Ins. Co. (Litch t>.) 136 Mass. 491 .... 667,1142 North Brookfleld (Harwood v.) 130 Mass. 561 ... 962 (Kittredge v.) 138 Mass. 286 . 974, 982 Northern Raihroad (Lewis v.) 139 Mass. 294 261, 1144 Norton (Gaylordw.) 130 Mass. 74 .... 53 (Nutt V.) 142 Mass. 242 1125 V. Palmer, 142 Mass. 433 .... 686 V. Ray, 139 Mass. 230 10 Norway Plains Savings Bank v. Moors, 134 Mass. 129 267, 505 Norwich & Worcester Railroad ( Providence & Worcester Railroad v.) 138 Mass. 277 880 Norwood (Flanders v.) 141 Mass. 17 . . . 1093 Nott (Commonwealth 0.) 135 Mass. 269 . . 413, 417, 425, 607 V. Sampson Manuf. Co., 142 Mass. 479 512 Nourse v. Packard, 138 Mass. 307 .. . 8, 418 (Spaulding v.) 143 Mass. 490 . 211, 409 Nowell V. Boston Academy of Notre Dame, 130 Mass. 209 325 Noyes v. Hale, 137 Mass. 266 . . 963, 966, 1138 V. Johnson, 139 Mass. 436 . . 233, 903 (Ladd V.) 137 Mass. 151 26S (Tacey v.) 143 Mass. 449 . . 109, 820 Nudd V. Powers, 136 Mass. 273 293, 304, 340, 591 Nutt V. Morse, 142 Mass. 1 501 V. Norton, 142 Mass. 242 .... 1125 Nutter V. Framingham & Lowell Railroad, 131 Mass. 231 1036 V. Framingham & Lowell Railroad, 132 Mass. 427 1039 Nye V. Chace, 139 Mass. 379 ... . 125, 130 o. Oakes v. Manuf. Ins. Co., 131 Mass. 164 557, 1141 V. Manuf. Ins. CO. 135 Mass. 248 . 564 (Smith V.) 141 Mass. 461 . . 778, 898 Oakley (Amos v.) 131 Mass. 413 231, 267, 386 O'Brien v. Boston & Albany Railroad, 138 Mass. 387 660 (Brooke Iron Co. v.) 135 Mass 442 878 (Callaghan u.) 136 Mass. 378 .^ 684, 698 (Commonwealth v.) 134 Mass. 198 394, 928 (Hoosac Tunnel Dock Co. v.) 137 Mass. 424 8,63,480 (Pierce v.) 129 Mass. 314 . 69, 84, 197 Ockershausen v. Durant, 141 Mass. 338 389, 877 O'Connor v. Boston & Lowell Railroad, 135 Mass. 352 714, 722, 723 (McMahon v.) 137 Mass. 216 92, 436, 816 Octo V. Teahan, 133 Mass. 430 801 O'Day V. Bowker, 143 Mass. 59 371, 690, 967 Odd Fellows' Association (Elsey v.) 142 Mass. 224 112,1139 Odewald v. Woodsum, 142 Mass. 512 . . . 108 O'Donnell v. Barbey, 129 Mass. 463 .. . 813 (Commonwealth!).) 143 Mass. 178 . 916 v. Smith, 142 Mass. 605 .. . 65, 283 Oesting (Croacher u.) 143 Mass. 195 .. . 447 Ogden V. Greenleaf, 143 Mass. 349 . 423, 1124 O'Grady (Mistier w.) 132 Mass. 139 ... 735 O'Hara (Eddy ti.) 132 Mass. 56 IC, 684, 896, 1038 O'Hare v. Downing, 130 Mass. 16 87, 349, 362, 372 O'Heam (Commonwealth v.) 132 Mass. 563 676 Old Colony Railroad (Barstow v.) 143 Mass. 535 • (Cassidy v.) 141 Mass. 174 ■ (Clifford V.) 141 Mass. 564 . ■ (Crocker v.) 137 Mass. 417 ■ (Davis V.) l3l Mass. 268 . ■ (Ferrer v.) 143 Mass. 197 . • (Lamb v.) 140 Mass. 79 . . (Standish ».) 129 Mass. 158 • (Warden v.) 137 Mass. 204 • V. Wilder, 137 Mass. 636 . 659, 667 . 1065 . 660 . 240 . 245 . 657 442,727 43, 51 . 653 . 177 1213 TABLE OF CASES. 1214 Old Colony Steamboat Co. (Wamsutta Mills v.) 137 Mass. 471 572 Oldham (Citizens' National Bank v.) 142 Mass. 379 705 (Hallgarten v.) 135 Mass. 1 198, 1062, iiaa Old South Society!?. Wainwright, 141 Mass. 443 152 (Viaux V.) 133 Mass. 1 . . . 35, 1141 O'Leary (Commonwealth v.) 143 Mass. 95 92SI Oliver v. Hopkins, 144 Mass. 175 ... . 343 V. Lynn, 130 Mass. 143 967 OUiffe V. Wells, 130 Mass. 221 .. . 181, 9y8 Olmstead (Krebs v.) 137 Mass. 504 ... 63fi Olney (Jackson v.) 140 Mass. 195 . . . . 481 O'Loughlin v. Bird, 128 Mass. 600 1, 2, 47, 207, 588, 800, 949 Olson V. Worcester, 142 Mass. 536 . . . 1091 O'Mahoney (Perkins v.) 131 Mass. 546 641, 786 O'Malley (Commonwealth v.) 131 Mass. 423 515 O'Neil V. Harrington, 129 Mass. 591 .. . 545 V. Wolffsohn, 137 Mass. 134 . 442, 523 Opinion of the Justices, 132 Mass. 600 . . 669 . 135 .Mass. 594 207, 1141 . 1.16 Mass. 578 938,1136 , 136 Mass. 583 333, 501, 1056, 1138, 1141 , 138 Mass. 601 210 , 142 Mass. 601 210, 211 Orcutt V. Moore, 134 Mass. 48 276, 606, 701, 1138 Ordway (Boston & Maine Railroad v.) 140 Mass. 510 404, 410 O'Reilley (Leonard v.) 1.37 Mass. 138 . . 258 O'Reilly (Follansbee I'.) 135 Mass. 80 . . 85 Orr (Sawyer w.) 140 Mass. 234 134 Osbum V. Fall River, 140 Mass. 508 . 52, 1086 V. Martha's Vineyard Railroad, 140 Mass. 549 , . . . .6 (Smith V.) 143 Mass. 185' '. '. '857, 899 Osborne, petitioner, 141 Mass. 307 953, 975, 1127 V. Morgan, 130 Mass. 102 .... 667 V. Morgan, 137 Mass. 1 653 Osborn Mill (Commonwealth v.) 130 Mass. 33 668, 1138 Osgood V. Bliss, 141 Mass. 474 1125 (Commonwealth «.) 144 Mass. 362 . 643 V. Kezar, 138 Mass. 357 812 V. Lynn, 130 Mass. 335 . . 1, 14, 1088 V. Lynn & Boston Railroad, 130 Mass. 492 944 V. Stevenson, 143 Mass, 399 ... 38 O'SulUvan ( Hurley v.) 137 Mass. 86 431, 816, 1122, 1137, 1140 O'Toole (Page v.) 144 Mass. Owen (Kennedy v.) 131 Mass. 431 (Kennedy v.) 134 Mass. 227 (Kennedy v.) 136 Mass. 199 V. Neveau, 128 Mass. 427 . Owens (Arpin v.) 140 Mass. 144 895 469, 866 . . 469 263, 469 88,446 . . 130 P. Pacific Bank (Eaton v.) 144 Mass. 260 . . 101 (Shute V.) 136 Mass. 487 . . 119, 890 V. Windram, 133 Mass. 175 67, 522, 1005 Packard (Braconier v.) 136 Mass. 50 . . . 935 V. Marshall, 138 Mass. 301 . . . 1015 (Nourse v.) 138 Mass. 307 . . 8, 418 w. Ryder, 144 Mass. 440 471 Packard National Bank (Rich v.) 138 Mass. 527 960 Page (Carpenter v.) 144 Mass. 315 . . 126, 1118 (Fitchburg Railroad v.) 131 Mass. 391 611 (Lathrop v.) 129 Mass. 19 . 5, 226, 77li V. Morse, 128 Mass. 99 533 V. O'Toole, 144 Mass. 303 ... . 895 Paige (Nashua & Lowell Railroad v.) 135 Mass. 145 76,613 Paine v. Brockton, 138 Mass. 564 . 1057, 1090 V. HoUister, 139 Mass. 144 . . 524, 1118 Pairpont Manuf. Co. (Hamlin v.] 141 Mass. 51 152, 503 Palmer (Clarke v.) 129 Mass. 373 .... 488 ■ (Commonwealth v.) 134 Mass. 537 316, 1139 (Langdon r.) 133 Mass. 413. ... 73 (Norton u.) 142 Mass. 433 ... . 686 V. Wall, 128 Mass. 475 261 Papineau v. Wentworth, 136 Mass. 543 624, 1058 Para Rubber Shoe Co. v. Boston, 139 Mass. 155 1071 Park (Maguire v.) 140 Mass. 21 .... 473 Park Commissioners (Foster v.) 131 Mass. 225 40,749 (Foster v.) 133 Mass. 321 205, 749, 1139 Parker v. Abbott, 130 Mass. 25 446 (Bacon v.) 137 Mass. 309 . . 490, 602 V. Barnard, 135 Mass. 116 .... 7 (Beatty v.) 141 Mass. 523 . . 628, 629 (Commonwealth v.) 1.30 Mass. 40 . 437 (Commonwealth tr.) 140 Mass. 439 . 49 Parker (Granger v.) 137 Mass. 228 ... 594 (Granger v.) 142 Mass. 186 . . 47, 145 V. lasigi, 138 Mass. 416 .. . 294, 1016 (Lindsey v.) 142 Mass. 582 145, 433, 742 (Mudge K.) 139 Mass. 153 165 V. Nickerson, 137 Mass. 487 242, 243, 365, 368, 369, 373, 392 V. Russell, 133 Mass. 74 . 231, 267, 788 (Sartwell v.) 141 Mass. 405 ... 646 V. Schwartz, 136 Mass. 30 .... 635 (Shurtleff v.) 130 Mass. 293 . 616, 620, 1131 (Shurtleff v.) 138 Mass. 86 . . . 54, 55 V. Snow, 143 Mass. 423 45 (Williams B.) 136 Mass. 204 ... 246 Parks (DoUiver v.) 136 Mass. 499 ... . 786 Parr (Gage Manuf. Co. v.) 138 Mass. 462 . 439 (Wheelhousei'.) 141Mass. 593 . . 874 Parsons (Bassett v.) 140 Mass. 169 544,569, 1037 V. Clark, 132 Mass. 569 .. . 216, 1009 (Commonwealth v.) 138 Mass. 189 479, 744 (Commonwealth ». ) 139 Mass. 381 . 728 (Fowler v.) 143 Mass. 401 . . 625, 1061 (Haydenville Savings Bank v.) 138 Mass. 53 120, 955 (Johnson u.) 140 Mass. 173 122, 134, 404 y. Phelan, 134 Mass. 109 . . . 489, 1047 V. Spaulding, 130 Mass. 83 .... 449 Partridge v. Kingman, 130 Mass. 476 . 377, 757 Patch (Emerson v.) 129 Mass. 299 ... . 91 (Foye V.) 132 Mass. 105 385, 405, 583, 795 (Sewalli'.) 132Mass. 326 . . 78,457 Patten v. Fitz, 138 Mass. 456 263 B. Johnson, 131 Mass. 297 .... 167 Patterson (Commonwealth v.) 138 Mass. 498 920, 1139, 1140, 1142 Patton V. Bell, 141 Mass. 197 . . . . 80, 395 0. Taft, 143 Mass. 140 213 1215 TABLE OF CASES. 1216 Paul V. Paul, 136 Mass. 286 514 (Reed v.) 131 Mass. 129 67, 102, 104, 262, 268, 421, 642 Paulet(Bigaouette«.) 134 Mass 123 . . . 618 Paxton (Cambridge v.) 144 Mass. 520 . . 776 Payea (Wood v.) 138 Mass. 61 . 586, 801, 1144 Payne v. Davis, 128 Mass. 383 751 Payson v. Barnham, 141 Mass. 547 ... 330 (Hampden Cotton Mills v.) 130 Mass. 88 678 V. Lamson, 134 Mass. 693 . . 349, 398 Peabody (Larrabee v.) 128 Mass. 861 . . . 977 (Lynch u.) 137 Mass. 92 441 Peak (Carter v.) 138 Mass. 439 . 753, 938, 1141 Pearson (Abbott v.) 130 Mass. 191 388, 392, 757 (Boston & Albany Railroad v.) 128 Mass. 445 2, 39, 197, 237, 1054, 1055 Pease (Commonwealth v.) 137 Mass. 676 471, 1133 . . 107 . . 443 . . 602 . . 92 . . 136 339, 345 271, 389, 408, 415, 428, 1141 (Comstock V.) 128 Mass. 231 n. 102, 105 (Lonergan v.) 136 Mass. 361 91, 382, 383 V. Boston & Lowell Railroad, 141 Mass. 481 831, 850 , Webquish, 129 Mass. 469 . . 376, 529 " (Sturtevant v.) 130 Mass. 373 . 6-32 Crane, 134 Mass. 56 128, 438, 609 Penn Match Co. v. Hapgood, 141 Mass. 145 754, 791 Pentecost (Mayhew v.) 129 Mass. 332 67, 542 Pepper (Howard v.) 136 Mass. 28 .... 281 Percy v. Bibber, 134 Mass. 404 406 (Fuller V.) 144 Mass. 390 . V. Morris, 138 Mass. 72 . . Peaslee (Gardner v.) 143 Mass. 382 V. Ross, 143 Mass. 275 . . Pebbles v. Boston, 131 Mass. 197 . Peck (Carver v.) 131 Mass. 291 V. Clark, 142 Mass. 436 Peirce Pells 1 Pembroke i Penn Ins. Co. 457 707, 1069 . . 328 . . 47 641, 786 . . 1003 393, 429 . . 278 Perley (Commonwealth v.) 130 Mass. 469 470 V. Perley, 144 Mass. 104 136 Perry (American Legion of Honor v.) 140 Mass. 680 110, 111, 609, 951, 1001, 1123, 1138 Perkins ». Fellows, 136 Mass. 294 V. Lawrence, 136 Mass. 305 V. Lawrence, 138 Mass. 361 (Kimball v.) 130 Mass. 141 . V. O'Mahoney, 131 Mass. 546 V. Perkins, 134 Mass. 441 V. Stickney,*132 Mass. 217 . Stockwell, 131 Mass. 529 • V. Bigelow, 128 Mass. 129 ■ (Chamberlains.) 138 Mass. 546 . • (Chase !'.) 132 Mass. 582 . . . ■ (Commonwealth v.) 139 Mass. 198 298, 399 476 1112 737, 738 1142 80 V. Cross, 132 Mass. 454 . V. Hale, 143 Mass. 540 (Manufacturers' Bank v.) 144 Mass. 313 578, 637 (Shanahan v.) 130 Mass. 460 .. . 260 (TImrston v.) 130 Mass. 240 75, 214, 429 V. Weeks, 137 Mass. 584 848 Peterborough Bank v. Childs, 130 Mass. 519 98, 129, 197, 632 V. Childs, 133 Mass. 248 . . 98, 129, 889 V. Childs, 133 Mass. 253 632 Petersham (Goddard v.) 136 Mass. 235 . . 1087 Peterson v. Loring, 135 Mass. 397 ... . 1039 Peto (Commonwealth v.) 136 Mass. 155 532, 910, 912 Pettingell v. Boynton, 139 Mass. 244 . 300, 848 Petty V. Allen, 134 Mass. 265 ... 440. 857 Peverly v. Boston, 136 Mass. 366 . 172, 173, 711 Pew V. Gloucester Bank, 130 Mass. 391 . . 96 Phelan (Parsons v.) 134 Mass. 109 Phelon V. Granville, 140 Mass. 386 Phelps (Holden v.) 13c Mass. 61 (Holden v.) 141 Mass. 456 V. Phelps, 143 Mass. 670 V. Sullivan, 140 Mass. 86 V. Webster, 134 Mass. 17 . 489,1047 ... 984 349, 697, 881 .... 884 362, 1023, 1139 .... 681 .... 148 Philadelphia & Reading Railroad (Chase v.) 135 Mass. 347 786 Philbrook v. Eaton, 134 Mass. 398 874, 991, 992 Phillips's Case, 132 Mass. 233 .. . 421, 549 Phillips V. Blatchford, 137 Mass. 510 758, 760, 761 V. Bristol, 131 Mass. 426 627 (Carter ».) 144 Mass. 100 .... 906 V. Cornell, 133 Mass. 546 . 91, 387, 431 V. Eastern Railroad, 138 Mass. 122 331, 332, 828 V. Granger, 134 Mass. 475 .... 1051 (Morrill v.) 142 Mass. 240 ... . 296 (New England Life Ins. Co. v.) 141 Mass. 535 332, 1032 ■ ' "' 897 530, 971 883 ■ V. Schlesinger, 137 Mass. 338 Philpot (Commonwealth v.) 130 Mass. 59 Phipps V. Mahon, 141 Mass. 471 .... Phoenix Cotton Manuf. Co. (Binney v.] 128 Mass. 496 226, 1142 Phoenix Ins. Co. v. Frissell, 142 Mass. 613 14, 33, 389, 1046 Pickens v. Davis, 134 Mass. 252 .... 1124 Pickering v. Cambridge, 144 Mass. 244 . . 968 (Kennebec Framing Co. v.) 142 Mass. 80 629 Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425 . . 66, 316, 676, 881 (Bowker v.) 130 Mass. 262 . 1028, 1034 V. Charter Oak Ins. Co., 1.38 Mass. 161 41, 400, 423, 568, 577, 763, 789, 1047 (Commonwealth v.) ISO Mass. 81 . 464 : — (Commonwealth v.) 138 Mass. 165 616, 785 V. Drew, 136 Mass. 75 . . 968, 969, 1077 (Farnham v.] 141 Mass. 203 ... 748 V. Gould, 143 Mass. 234 .. . 45, 1140 (Graffam v.) 143 Mass. 386 ... . 402 (Idea.) 134 Mass. 260 . . . 286,498 V. Lamper, 141 Mass. 20 951 V. Mann, 130 Mass. 14 . . . 493, 549 V. New Bedford, 129 Mass. 534 . . 1092 , 69, 84, 197 48, 609, 821 Pingree (Leyland v.) 134 Mass. 367 . 433, 870 V. Leyland, 135 Mass. 398 . . 896, 897 V. O'Brien, 129 Mass. 314 ■ V. Preseott, 128 Mass. 140 Pingrey ». National Ins. Co., 144 Mass. 374 1002 (National Life Ins. Co. v.) 141 Mass. 411 352, 669 Place (Huntress v.) 137 Mass. 409 ... . 295 V. Sawtell, 142 Mass. 477 ... . 996 Piatt V. Grover, 136 Mass. 115 820 Plimpton V. Goodell, 143 Mass. 365 . 486, 487 Winslow v.) 134 Mass. 44 .... 788 Plummer (Boston Safe Deposit & Trust Co. ».) 142 Mass. 267 300, 1022 Pliinkett (Dean «.) 136 Mass. 195 763 Plympton (Middleborough v.) 140 Mass. 325 770 Poland V. Brownell, 131 Mass. 138 . . 386, 481 Pomeroy (TurnbuU «.) 140 Mass. 117 . . .1018 Pomphret (Commonwealth v.) 137 Mass. 664 . 926, 1137 Pond V. Framingham & Lowell Railroad, 130 Mass. 194 261, 337 V. Pond, 132 Mass. 219 .. . 311, 421 Pool (Union Savings Bank v.) 143 Mass. 203 863 Poole (Hunt v.) 139 Mass. 224 .. . 410, 520 1217 TABLE OF CASES. 1218 Poole (Stimpson v.) 141 Mass. 502 ... . 12 Porter v. Giles, 12a Mass. 5B9 ... 86, 1039 «. Hubbard, 134 Mass. 233 ... . 694 V. Newton, 133 Mass. 56 . . . 40, 891 (Kose V.) 141 Mass. 309 .. . 300, 1001 V. Standard Measuring Machine Co., 142 Mass. 191 ... . Post v: Boston, 141 Mass. 189 . . ■V. Foxljorough, 131 Mass. 202 Post & Co. V. Toledo, Cincinnati, & St, Railroad, 144 Mass. 341 Potomska Mills (Wright v.) 138 Mass. Potter V. Baldwin, 133 Mass. 427 . (Bangs v.] 135 Mass. 245 (Dooley v.] 140 Mass. 49 (Hackett v.) 181 Mass. 50 225 1093, 1099 . . 1104 Louis . . .345 328 950 438, 1123 322 587,' 690, 694 679, 751, 862, 896 ... 478 350, 370, 674 (Hackett t;.) 135 Mass. 349 V. Howe, 141 Mass. 357 . V. Merrill, 143 Mass. 189 . Potts V. Chapin, 133 Mass. 276 482 V. New York & New England Eail- road, 131 Mass. 455 .. . 170, 835 Powell V. Turner, 139 Mass. 97 44 Powers V. Chelsea Savings Bank, 129 Mass. 44 582 (Dion V.) 128 Mass. 192 859 (Fletcher v.) 131 Mass. 333 91, 384, 701 V. Guardian Ins. Co., 136 Mass. 108 556, 559 (Nudd V.) 136 Mass. 273 293, 304, 340, 591 (Ray i>.) 134 Mass. 22 1053 V. Raymond, 137 Mass. 483 346, 368, 544 (Wilson w.) 130 Mass. 127 .... 215 (Wilson w.) 131 Mass. 539 .... 398 Pratt V. Alger, 136 IMass. 550 781 V. American Bell Telephone Co., 141 Mass. 225 ... 224, 493, 939, 943 V. Amherst, 140 Mass. 167 . . 419, 1090 0. Boston Heel & Leather Co., 134 Mass. 300 273, 731 (Commonwealth v.) 132 Mass. 246 . 334, ■ (Commonwealth v.) 137 Mass. 98 . 334, 335, 422, 532, 680, 1136 - (Corner v.) 138 Mass. 446 . . 122, 777 ■ (Daniels v.) 143 Mass. 216 112, 113, 114, 199, 1001 - V. Larason, 128 Mass. 528 . . 129, 513 • (Shannon!).) 131 Mass. 434 ... 278 • V. Street Commissioners, 139 Mass. 559 939, 961 Pratt V. Tuttle, 136 Mass. 233 345 V. Wliite, 132 Mass. 477 414 Pray v. Stebbins, 141 Mass. 219 . . 412, 477, 621, 581, 597 Preece (Commonwealth v.] 140 Mass. 276 58, 413 Prentiss v. Wood, 132 Mass. 486 53, 637, 673, 734 Prescott V. Durfee, 131 Mass. 477 ... . 461 (Lenzt).) 144 Mass. 505 358 (Pierce v.) 128 Mass. 140 . 48, 509, 821 Preston v. Etter, 140 Mass. 465 192 (Mayo ».) 131 Mass. 304 896 (Merrill v.) 135 Mass. 451 199, 1011, 11.39 (Sturgis V.) 134 Mass. 372 . 80, 285, 037 Price (Hodgkins v.) 132 Mass. 196 ... . 475 (Hodgkins v.) 137 Mass. 13 332, 596, 600, 605, 867, 989 ■ (Hodgkins v.) 141 Mass. 162 577, 605 861, 1034 . . 401 . . 746 . . 1019 Proctor (Baxter v.] 139 Mass. 151 V. Hartigan, 139 Mass. 554 V. Hartigan, 143 Mass. 462 V. Proctor, 141 Mass. 165 V. Putnam Machine Co., 137 Mass. 159 379, 766, 848 K. Whitcomb, 134 Mass. 428 ... 187 V. Whitcomb, 137 Mass. 303 188, 189, 1142 Providence & Worcester Railroad v. Nor- wich & Worcester Railroad, 138 Mass. 277 830 Provident Savings Institution v. Burnham, 128 Mass. 458 . . 238, 588, 686, 847 Provincetown v. Truro, 135 Mass. 263 . . 1086 Pryor v. Baker, 133 Mass. 459 696 Pullman's Palace Car Co. (Lawrence v.) 144 Mass. 1 841 (Whitney v.) 143 Mass. 243 173, 713, 840 Pulsifer (Cowley v.) l37 Mass. 392 ... 620 Purintoni). Chamberlin, 131 Mass. 589 . . 546 Purple V. Greenfield, 1-38 Mass. 1 388, 614, 1050, 1085, 1089, 1097 Putnam i'. Boyer, 140 Mass. 235 . . .40, 144 u.Langley, 133 Mass. 204 . . 648,983 V. Lewis, 133 Mass. 264 . . . 989, 992 (Rawsoni).) 128 Mass. 552 . . .18,846 (Rowe V.) 131 Mass. 281 .... 183 (Spauldingw.) 128 Mass. 363 ... 123 V. Story, 132 Mass. 205 64, 65, 67, 103, 297, 813, 1009 Putnam Machine Co. (Proctor v.) 137 Mass. 159 379, 766, 848 Putney v. Fletcher, 140 Mass. 696 ... . 822 Q. Queen Ins. Co. (Batchelder v.) 135 Mass. 449 564 Quigley v. Gridley, 132 Mass. 35 .... 309 Quilty (Cleveland v.) 128 Mass. 578 .. . 47 Quincy v. Carpenter, 135 Mass. 102 . . . 852 Quinn v. Lowell Electric Light Corporation, 140 Mass. 106 ... . 738, 941, 982 V. Lowell Electric Light Corporation, 144 Mass. 476 738, 942 Quinn v. Middlesex Electric Light Co., 140 Mass. 109 .... 941, 942, 1060 V. Morse, 130 Mass. 317 765 (Schmidt ti.) 136 Mass. 575 . . .1112 Quinsigamond National Bank (Sibley v.) 133 Mass. 515 . . . 67, 83, 239, 643, 546 Quirk (Walpole v.) 143 Mass. 72 .... 794 SUPPLEMENT. — 39 1219 TABLE OF CASES. 1220 E. Raddin (Farwell v.) 129 Mass. 7 .... 106 Kafferty (Commonwealth v.) 133 Mass. 574 917 Railroad Commissioners (Chandler v.) 141 Mass. 208 45, 1140 Rams'dell (Commonwealth v.) 130 Mass. 68 925 Rand (HewesK.) 129 Mass. 519 104 (Shattuc'k V.) 142 Mass. 83 . . . . 708 V. Smallidge, 130 Mass. 337 ... 78 w. Wright, 129 Mass. 50 82 Randall v. Chase, 133 Mass. 210 321, 383, 429, nil, 1112 V. Connecticut River Railroad, 132 Mass. 269 .... (Crabtree v.) 133 Mass. 552 Randlett v. Rice, 141 Mass. 385 . . Randolph (Deane v.) 132 Mass. 475 (Rooney v.) 128 Mass. 580 . Rawson v. Dofner, 143 Mass. 76 (Goddard v.) 130 Mass. 97 V. Putnam, 128 Mass. 652 V. Ward, 128 Mass. 552 . Ray (Norton v.) 139 Mass. 230 . V, Powers, 134 Mass. 22 . (Rowley v.) 139 Mass. 241 (Volgerw.) 131 Mass. 439 Raymond (Bartlett v.} 139 Mass. 275 V. Butterworth, 139 Mass. 471 721 764 650 978 1096 Ransom (Bacon v.) 139 Mass. 117 . . 294, 1000 Ratcliffe (Commonwealth v.) 130 Mass. 36 . 403 Rathke v. Gardner, 134 Mass. 14 . 257, 330, 417 Rau V. Von Zedlitz, 132 Mass. 164 320, 346, 362, 901 . . 49 , . 552 . 18,846 . . 988 . . 10 . . 1053 . . 419 . . 1053 . . 876 260, 375, 586, 1040 (Fels V. ) 134 Mass. 376 48 (Fels V.) 139 Mass. 98 . . . 579, 732 (Gay V.) 140 Mass. 69 587 (Powers V.) 137 Mass. 483 . 346, 368, 544 V. Rhodes, 135 Mass. 337 . . 220, 436 V. Russell, 143 Mass. 295 .... 350 (Uphamt;.) 132 Mass. 186 . . 207,550 (Weil V ) 142 Mass. 206 343 ( Wheeler v.) 1.30 Mass. 247 85, 86, 87, 522 Rea (J. Simmons, 141 Mass. 561 95 (Valpey v.) 130 Mass. 384 ... . 536 Read o. Boston & Albany Railroad, 140 Mass. 199 642, 643, 666 V. Stewart, 129 Mass. 407 .... 521 Reading v. Maiden, 141 Mass. 580 . . 634, 775 Reading Savings Bank (Commonwealth v.) 129 Mass. 73 141 (Commonwealth v.) 133 Mass. 16 . 880 (Commonwealth v.) 137 Mass. 431 . 680 Reagan (Lawless v.) 128 Mass. 592 ... 43 Real Estate Improvement Co. (Webster ti.) 140 Mass. 526 627 Reardon v. Paneuil Hall Ins. Co., 135 Mass. 121 564 Redemptorist Fathers v. Boston, 129 Mass. 178 957 Reedw. Boston Machine Co., 141 Mass. 454 641 (Connellu.) 128 Mass. 477 .... 987 V. Crapo, 133 Mass. 201 . . . . . 1057 (Fletcher v.) 131 Mass. 312 . 373, 760 V. Home Savings Bank, 130 Mass. 443 246, 644, 866, 879 (Johnson v.) 136 Mass. 421 .. . 9, 797 V. Jones, 133 Mass. 116 687 «. Paul, 131 Mass. 129 67, 102, 104, 262, 268, 421, 542 V. Washington Ins. Co., 138 Mass. 572 562, 565 Reeve v. Dennett, 137 Mass. 315 , Dennett, 141 Mass. 207 9, 76, 400, 428, 731 . 420,1130 Regan v. Boston Gaslight Co., 137 Mass. 37 .322, 1112, 1113 Reitenbach v. Johnson, 129 Mass. 316 . . 77 " - -" ' 383,709 Remick (Wood v.) 143 Mass. 453 Reynolds (Fasdale v.) 143 Mass. 126 Rhodes ^Raymond v.) 135 Mass. 337 Rhodes, 137 Mass. 343 109 220, 436 . 1015 . 480 . 187 Ricard (Trambly ».) 130 Mass. 259 Rice (Briggs v.) 130 Mass. 50 . . (Brooks V.) 131 Mass. 408 , (Cobb V.) 128 Mass. 11 373 ( Cobb V. ) 130 Mass. 231 101, 35 1 , 362, 374 (Drake v.) 130 Mass. 410 . 67, 197, 479 V. King Philip Milk, 144 Mass. 229 663, 664, 1139 V. Loomis, 139 Mass. 302 .... 606 V. Nantasket Co., 140 Mass. 256 . . 627 (Randlett v.) 141 Mass. 385 ... 650 (Sanborn v.) 129 Mass. 387 148, 192, 193, 279 (Smith V.) 130 Mass. 441 .... 278 Rice Machine Co. v. Worcester, 130 Mass. 575 829 Rich (Cochrane u.) 142 Mass. 15 . . .341,704 V. Crandall, 142 Mass. 117 ... . 25 t'. Packard National Bank, 138 Mass. 527 960 (Willett!).) 142 Mass. 356 . . . .1062 Richards v. Barlow, 140 Mass. 218 . . . 120, 134 V. Richards 136 Mass. 126 ... . 755 Richardson (Boston & Albany Railroad w.) 135 Mass. 473 251,269 (Bowen v.) 133 Mass. 293 ... . 343 Commonwealth v.) 142 Mass. 71 415, 471, 976 V. Massachusetts Charitable Associa- tion, 131 Mass. 174 V. Taylor, 136 Mass. 143 Richardson School Fund v. Dean, 130 Mass. 242 Richmond Iron Works v. Hayden, 132 Mass. 190 V. Wadhams, 142 Mass. 569 . Ricker v. American Loan & Trust Co., 140 Mass. 346 (Commonwealth v.) 131 Mass. 581 . (Lyons v.) 128 Mass. 462 245 340 141 22 20 961 390 91 Ridgeway' Stove Co. v. Way, 141 Mass. 557 474 Ridgway (Black c.) 131 Mass. 80 . . 129,133 Ridley v. Knox, 138 M^ss. 83 . 41, 623, 526, 753, 1051 RiggSK. Riggs, 135 Mass. 238 . . .1124,1141 Rile (Shurtleffu.) 140 Mass. 2)3 . ... 511 Riley v. Connecticut River Railroad, 135 Mass. 292 665 (Fall River v.) 138 Mass. 336 . 202, 742 Fall River v.\ 140 Mass. 488 202, 742, 1145 . . 692 . . 896 . . 476 . . 1100 . . 53 314, 1138 287, 390, 4.32, 1123, 1126 ... 205 Roberts ( Commoriwealth v.) 132 Mass. 267 . 526 (Guckian v.] 135 Mass. 71 . V. Henderson, 134 Mass. 171 (Murray v.) 140 Mass. 490 . Roacli V. Somerville, 131 Mass. 189 Robbins v. Clark, 129 Mass. 145 . V. Robbins, 140 Mass. 528 . (Sewall V.) 139 Mass. 164 (Turner v.) 133 Mass. 207 1221 TABLE OF CASES. 1222 Roberts i>. Douglas, 140 Mass. 129 ... . 1105 ■ (Hedden v.) 1.34 Mass. 38 382, 874, 1042 • V. Medbery, 132 Mass. 100 ■(Skiltoni).) 129 Mass. 306 408 697 Robertson v. Coleinan, 141 Mass 231 ... 8 Robins (Mechanics' Bank v.) 134 Mass. 331 121 Robinson's case, 131 Mass. 376 88 Robinson v. Blake Manuf. Co., 143 Mass. 528 658 i\ Masterson, 136 Mass. 660 ... 270 V. Millard, 133 Mass. 236 450 V. Robinson, 129 Mass. 539 ... . 48 (Saunders v.] 144 Mass. 306 . 115, 10.39 (Walkers.) 136 Mass. 280 . 633,819 (Yarrington K.) 141 Mass. 450 . . .1143 Roche V. Hampden Savings Bank, 128 Mass. 115 580 (Murleyu.) 130 Mass. 330 .... 717 Rock u. Indian Orchard Mills, 142 Mass. 522 438, 656, 667, 663 . . 493 864, 873 701, 1189 281 Rockwell (Cain v.) 132 Mass. 193 Rodgers «. Jones, 129 Mass. 420 . Rodliff I). Dallinger, 141 Mass. 1 liogers V. Abbott, 128 Mass. 102 ( Bent K.) 137 Mass. 192 . (Commonwealth v.) 135 Mass. 536 932, 1141 (Commonwealth v.) 1,36 Mass. 158 1132, 1135 V. Holden, 142 Mass. 196 . . 92, 755, 1045 V. Ludlow Manuf. Co., 144 Mass. 198 664 (Nichols «.) 139 Mass. 146 363, 364, 1031 V. Rogers & Brother, 139 Mass. 440 11 0. Union Stone Co., 130 Mass. 581 40, 442, 750 V. Union Stone Co., 134 Mass. 31 30, 67, 103, 215, 248, 744 Rogers & Brother (Rogers v.) 139 Mass. 440 11 Rollins (Linnehan v.) 137 Mass. 123 .. . 653 V. Marsh, 128 Mass. 116 .. . .215, 508 RoUstone National Bank u. Carleton, 136 Mass. 226 143, 954 Rooney (Commonwealth v.) 142 Mass. 474 915 V. Randolph, 128 Mass. 580 . . . . 1096 Rjosa V. Boston Loan Co., 132 Mass. 439 . 403 Roosevelt v. Doherty, 129 Mass. 301 37, 73, 221 Roosnell (Commonwealth v.) 143 Mass. 32 61, 62, 1141 Rose V. Porter, 141 Mass. 309 ... 300, 1001 Ross (Peaslee u.) 143 Mass. 275 92 0. Ross, 129 Mass. 243 .... 15, 196 V. Wilcox, 134 Mass. 21 632 Roswell r. Leslie, 133 Mass. 589 .... 315 Rourke (Commonwealth «.) 141 Mass. 321 924, 936 Rouse V. Somerville, 130 Mass. 361 ... 158 Rowe V. Canney, 139 Mass. 41 409, 729, 731, 1058 (Commonwealth v.} 141 Mass. 79 . 162 V. Putnam, 131 Mass. 281 ... . 183 Rowell V. Uoggett, 143 Mass. 483 ... . 1116 V. Doyle, 131 Mass. 474 470 Rowley v. Ray, 139 Mass. 241 419 Roy (Commonwealth K.) 140 Mass. 432 . . 161 Roy ce (Sanborn t>.) 132 Mass. 594. . . 88,762 Ruisseau (Commonwealth v.) 140 Mass. 363 731, 732, 1062 Russell V. Barstow, 144 Mass. 130 ... . 359 (Campbell v.] 139 Mass. 278 388, 391, 439 (Green v.) 132 Mass. 536 . . .458, 776 (Johnson w.) 144 Mass. 409 . ... 411 V. Milton, 133 Mass. 180 .... 1005 (Parker v.) 133 Mass. 74 . . 231, 267, 788 (Raymond v.) 143 Mass. 295 .. . 350 V. Tillotson, 140 Mass. 201 ... . 655 (Washburn Iron Co. v.) 130 Mass. 543 874 (Wilson v.] 136 Mass. 211 .. . 227, 863 Russell Paper Co. v. Smith, 135 Mass. 588 . 539 Ryan (Commonwealth v.) 134 Mass. 223 . 515, 516, 800 (Commonwealth v.) 136 Mass. 436 736, 931 (Sullivan v.) 130 Mass. 116 . . 320, 1139 V. Tarbox, 135 Mass. 207 ... . 661 Ryder (Packard v.) 144 Mass. 440 . . . . 471 (Whitehead & Atherton Machine Co. V.) 139 Mass. 366 .. . 271, 442, 879 Ryer v. Gass, 130 Mass. 227 686 s. Safford (Hardy v.) 132 Mass. 332 • V. Weare, 142 Mass. 231 . 587, 851 Sagamore Manuf. Co. (Linch v.) 143 Mass. 206 657 St. Andrew v. Manchaug Manuf. Co., 134 Mass. 42 67 St. James Parish v. Newburyport Horse Railroad, 141 Mass. 500 ... 244 St. Joseph Ins. Co. (Dolllver v.) 128 Mass. 315 554 (Dolliverti.)131Mass.39 29,555,660,1138 Salem (Daltonu.) 131 Mass. 5.51 , . . .1104 (Daltonw.) 136 Mass. 278 . . . .1104 (Dalton v.] 139 Mass. 91 .... 1108 (Flynn v.) 134 Mass. 351 .... 659 (Mooney v.) 130 Mass. 402 . . . . 1101 (Shallow V.) 136 Mass. 136 . . 1102, 1107 (Tindley v.) 137 Mass. 171 ... . 979 Salisbury v. Andrews, 128 Mass. 336 . . . .325 (National Ins. Co. v.) 130 Mass. 303 360, 700 Salmon (Commonwealth v.) 136 Mass. 431 439, 935 Samana Bay Co. (E. Remington & Sons v.) 140 Mass. 494 254, 255 Sampson v. Security Ins. Co., 133 Mass. 49 554 Sampson Manuf. Co. (Nott v.) 142 Mass. 479 512 Samuel v. Cheney, 135 Mass. 278 ... . 168 Sanborn v. Dwinell, 135 Mass. 236 .... .363 (Gilhooley v.) 128 Mass. 485 .. . 391 V. Rice, 129 Mass. 387 148, 192, 193, 279 V. Royce, 132 Mass. 594 ... . 88, 762 Sanders (New York & New England Rail- road V.) 134 Mass. 53 ... . 170. 836 Sanderson (Knowlton c.) 141 Mass. 323 . . 1021 Sanford v. Sanford, 135 Mass. 314 280, 299, 965 Sanger v. Newton, 134 Mass. 308 .... 40 Santom v. Ballard, 133 Mass. 464 ... . 46 Sargent (Commonwealth v.) 129 Mass. 115 438, 441, 779 V. Lynn, 138 Mass. .599 1108 (Stone V.) 129 Mass. 503 . 91, 416, 440, 859, 860, 1142 (Troy i>.) 132 Mass. 408 . . . .360,567 Sartwell v. Humphrey, 136 Mass. 396 . . . 506 V. North, 144 Mass. 188 .. . 485, 1140 V. Parker, 141 Mass. 405 646 ( Woodward v.) 129 Mass. 210 83, 84, 277, 444, 445, 447 Saunders (Kempton v.) 130 Mass. 236 207, 560 1223 TABLE OP CASES. 1224 Saunders (Kempton v.) 132 Mass. 466 . 43, 551 (Kennedy v.) 142 Mass. 9 .... 907 !). Lawrence, 141 Mass. 380 ... 985 V. Lowell, 131 Mass. 387 ... . 160, 892 '" . 115,1039 ... 448 ... 476 . . 256, 583 1100, 1102, 1103 V. Robinson, 144 Mass. 306 Savage v. Davis, 134 Mass. 401 . (Lawton v.) 136 Mass. Ill V. Stevens, 128 Mass. 254 Savory v. Haverhill, 132 Mass. 324. 364 995 335 . . 422 . 750, 856 132 .140 Sawin (Bancroft v.) 148 Mass. 144 . . Sawtell (Place v.) 142 Mass. 477 . . Sawtelle (Commonwealth v.) 141 Mass Sawyer, petitioner, 136 Mass. 339 . . V. Boston, 144 Mass. 470 . . . (Brighton Savings Bank v.) Mass. 185 129,856 (Commonwealth v.) 142 Mass. 530 . 61 (Davis w.) 133 Mass. 289 .... .354 V. Davis, 136 Mass. 239 ... . 210, 354 V. Harmon, 136 Mass. 414 ... . 741 V. Orr, 140 Mass. 234 134 Scanlan u. Boston, 140 Mass. 84 1090 Schlesinger(i^hillipsK.) 137 Mass. 338 . . 897 Schmaunz y. Goss, 1.32 Mass. 141 . . .298,302 Schmidt v. Quinn, 136 Mass. 575 ... . 1112 Schouler, petitioner, 134 Mass. 426 181, 1024, 1140 Schramm v. Stephan, 133 Mass, 559 . . . 107 Schwamb (Isele v.) 131 Mass. 337 ... . 673 Schwartz (Parker y.) 138 Mass. 30 . . . 6.35 Scituate (Litchfield v.) 136 Mass. 39 . 149, 474, 502, 848 Scott V. Berksliire County Savings Bank, 140 Mass. 157 407, 408, 410, 432, 499 V. Calkin, 139 Mass. 529 507 (McFeely «) 128 Mass. 16 . . . 4.3, 456 Seaman's Friend Society (Newton v.) 130 Mass. 91 Seamans v. Gibbs, 132 Mass. 239 Sears v. Fuller, 137 Mass. 326 . V. Le Better, 137 Mass. 374 Seaver (Alger v.) 138 Mass. 331 V. Fitzgerald, 141 Mass. 401 Seavey v. Beckler, 128. Mass. 471 V. Beckler, 132 Mass. 203 (Emery v.) 144 Mass. 403 Security Ins. Co. (Sampson v ) 133 Mass. 49 Segee v. Downes, 143 Mass. 240. . 68, 177, Servin (Smith Paper Co. v.) 130 Mass. 511 Sewall V. Patch, 132 Mass. 326 . V. Robbins, 139 Mass. 164 1126 . . . 1034 . . . 1109 . 872, 1043 648, 803, 984 ... 782 ... 101 . 52, 87, 102 . .45,1138 554 1042 472, 783 . . 78, 457 287, 390, 432, 1123, 1126 314, 372, 374, 447 . . 849 .196,288 . . 627 1102, 1107 . . 260 . . 278 . . 716 V. Sewall, 130 Mass. 201 V. Sewall, 139 Mass. 157 V. Wilmer, 132 Mass. 131 Sexton V. Weaver, 141 Mass. 273 Shallow V. Salem, 136 Mass. 136 Shanahan v. Perry, 130 Mass. 460 Shannon v. Pratt, 131 Mass. 434 . Shapleigh v. "Wyman, 134 Mass. 118 Shattuck V. Adams, 136 Mass. 34 142, 270, 866, 950 V. Bill, 142 Mass. 56 . . . 90, 462, 444 (Gerrish v.) 128 Mass. 571 ... . 1111 ( Gerrish w.) 132 Mass. 235 . . . .1111 (GoodnowiJ.) 136 Mass. 223 ... 523 V. Rand, 142 Mass. 83 708 Shaughnessev v. Lewis, 130 Mass. 355 276, 701, 1138 Shaw (Bank of America v.) 142 Mass. 290 . 122 (Commonwealth v.) 134 Mass. 221 . 59 V. Cordis, 143 Mass. 443 166 V. Hall, 134 Mass. 103 22 (Harney f.) 141 Mass. 340 .... 395 (Importers & Traders' Bank v.) 144 Mass. 421 123 (Kenney v.) 133 Mass. 501 ... . 659 Shay (Miller v.) 142 Mass. 598 396 Shea V. Lowell, 132 Mass. 187 . 609, 1099, 1100, 1102, 1103 Shedd (Commonwealth v.) 140 Mass. 451 156, 517 Sheehan (Commonwealth v.) 143 Mass. 468 911 V. Fitchburg, 131 Mass. 623 378, 891, 892 V. Marston, 132 Mass. 161 .... 1037 Shelburne ( Spurr p. ) 131 Mass. 429 421, 589, 1092 Sbepard v. Abbott, 137 Mass. 224 ... . 538 (Abbott V.) 142 Mass. 17 ... . 427, 548 (Hopkins v.) 129 Mass. 600 . . . . 576 !>. Lawrence, 141 Mass. 479 . 48, 985, 986 (Mansfield y.) 134 Mass. 520 . . .1112 (Sherburne «.) 142 Mass. 141 . 887, 1143 (Skinner v.) 130 Mass. 180 194, 260, 325, 1137 Sherburne (Engstrom v.) 137 Mass. 163 202, 586 V. Morse, 132 Mass. 469 1028 V. Shepard, 142 Mass. 141 . . 887, 1143 V. Sischo, 143 Mass. 439 308 Sherer v. Trowbridge, 135 Mass. 500 . . . 489 Sherley v. McCormick, 135 Mass. 126 . . 439, 876 Sherman (Brookline 0.) 140 JMass. 1 . . . 975 V. Davis, 137 Mass. 132 ... . 448, 703 V. Galbraith, 141 Mass. 440 . . . 278, 850 V. New Bedford Savings Bank, 138 Mass. 581 499 Sherwin v. Boston Five Cents Savings Bank, 137 Mass. 444 906 V. Wiggles worth, 129 Mass. 64 . . 812 Shirley (Lunenburg v.) 132 Mass. 498 769, 1138 Shoe & Leather Bank v. Wood, 142 Mass. 563 . . 130, 199, 204, 392, 478, 609 Shurtleffy. Ferry, 138 Mass. 259 .... 380 V. Parker, 130 Mass. 293 . 616, 620, 1131 V. Parker, 138 Mass. 86 ... . 54, 55 V. Rile, 140 Mass. 213 511 Sliute V. Pacific National Bank, 136 Mass. 487 119, 890 (Skally V.) 132 Mass. 367 .... 600 Sliutesbury v. Hadley, 133 Mass. 242 . 769, 773 Sias V. Munroe, 134 Mass. 153 386 Sibley v. Quinsigamond National Bank, 133 Mass. 515 . . . 67, 83, 239, 543, 546 (Winchester!).) 132 Mass. 273 . . 635 Silva V. Wimpenney, 136 Mass. 253 .. . 20 Silver K. Jordan, 136 Mass. 319 753 V. Jordan, 139 Mass. 280 41 Silverman v. Silverman, 140 Mass. 560 . . 521 Simmons (Frazier v.) 139 Mass. 531 . 493, 943 V. Lawrence Duck Co., 133 Mass. 298 74, 75, 82, 440 (Rea V.) 141 Mass. 561 95 (Watertown Ins. Co. v.) 131 Mass. 85 142 V. Woods, 144 Mass. 385 1042 Simonds (Stone v.) 181 Mass. 457 . . 105, 440 Simons (Greenfield Savings Bank v.) 133 Mass. 415 ... . 26, 32, 242, 267 Simpson (Byington v, ) 134 Mass. 146 . . 215 (Byington v.) 134 Mass. 169 .. . 31 (Caverly v.) 132 Mass. 462 ... . 337 V. Dix, 131 Mass. 179 275, 286, 382, 685, 847 (Eastman v.) 139 Mass. 348 ... 370 V. Mercer, 144 Mass. 413 .... 12 Sinclair (Commonwealth v.) 138 Mass. 493 913, 926 Singer Manuf. Co. v. County Commissioners, 139 Mass. 266 961 Sischo (Sherburne «.) 143 Mass. 439 ... 308 Sisson (Batten v.] 133 Mass. 567 .... 550 V. New Bedford, 187 Mass. 255 178, 1086 (Turner v.] 137 Mass. 191 ... . 741 Skally V. Shute, 132 Mass. 367 600 Skiff (Dean v.) 128 Mass. 174 . . 154, 216, 285 Skillings, &c. Lumber Co. (Third National Bank V.) 132 Mass. 410 . ... 851 1225 TABLE OF CASES. 1226 Skilton V. Rolerts, 129 Mass. 306 ... . 697 Skinner (Capena.) 139 Mass. 190 .... 44 V. Gray, 130 Mass. 5 440 V. Shepard, 130 Mass. 180 194, 260, 32.5, 1137 Slater Woollen Co. v. Lamb, 143 Mass. 420 Sleeper (Wilson v.) 131 Mass. 177 Sloan V. McCarty, 134 Mass. 245 V. Merrill, 135 Mass. 17 . 252, 877 . 626 . 119 391, 873 . 576 . 785 601, 602 Slocum t: Boston, 129 Mass. 559 Small V. Howard, 128 Mass. 131 Smallidge (Rand v.) 130 Mass. 337 Smiley u. McLaughlin, 138 Mass. 3 Smith (Amherst College v.) 134 Mass. 543 . 309 V. Bean, 130 Mass. 298 . 444, 811, 1141 V. Boston Gas Light Co., 129 Mass. 318 716 868, 950 493, 943 , . 1002 . . 427 . . 281 214, 441 . . 225 • V. Brown, 136 Mass. 416 . . (BuUardr.) 1.39 Mass. 492 ■ V. Burgess, 133 Mass. 511 ■ V. Burrillj 131 Mass. 92 . ■ V. Carmody, 137 Mass. 126 ■ V. Colby, 136 Mass. 562 . ■ (CoUett V.) 143 Mass. 473 • (Commonwealth v.) 129 Mass. 104 • (Commonwealth v.) 132 Mass. 289 ■ (Commonwealth v.) 141 Mass. 1.S5 . (Commonwealth v.) 143 Mass. 169 ■ V. Concord, 143 Mass. 253 . . . ■ (Coolidge V.) 129 Mass. 554 . (Davis V.) 130 Mass. 113 ■ V. Dedham, 144 Mass. 177 ■ (Dennie v.) 129 Mass. 143 333, 334 259 671 671 1075 ... 26 590, 739, 1076 51, 976, 980, 1075, 1137 142, 583, 740, 787 44, 810 • w. Dickinsoij, 140 Mass. 171 - (Eastern Bank v.) 133 Mass. 26 - (Eldridge v.) 144 Mass. 35 . . 636, 1140 - (Fellows V.) 130 Mass. 376 ... . 1118 - (Fellows ti.) 130 Mass. 378 . . 407,456 - V. Fellows, 131 Mass. 20 461 ■ (Fellows V.) 131 Mass. 363 ... . 1038 ■ V. Flanders, 129 Mass. 322 . 222, 268, 576 - (Foote v.] 136 Mass. 92 .36 - (Goell V.) 128 Mass. 238 ... . 94, 429 ■ (Hardy v.) 136 Mass. 328 290, 312, 519, 1139 - (Harrington v.) 138 Mass. 92 . . . 879 - V. Hitchcock, 1.30 Mass. 570 ... 682 - V. Jackman, 138 Mass. 143 . 388, 412, 763 ■ (Lamb v.] 132 Mass 574 .... 48B - V. Langewald, 140 Mass, 205 . 322, 674 ■ (Lelandu.) 131 Mass. 358 n. ... 196 ■ V. Lowell, 139 Mass. 336 . . . 1090, 1098 ■ (Lynn Bank v.) 132 Mass. 227 32, 97, 121 - (Mason M.) 131 Mass. 510 .... 595 - V. Metropolitan Railroad, 137 Mass. 61 •. . . 1132 ■ V. Milton, 133 Mass. 869 . ". 48, 744, 788 ■ V. Moore, 129 Mass. 222 79 • V. Moore, 1-34 Mass. 405 22 ■ V. New York & New England Rail- road, 142 Mass. -21 . 819,831,1115 542, 1061 778, 898 . 6.5,283 857, 899 278 - (Nichols V.) 143 Mass. 455 - V. Oakes, 141 Mass. 451 . . - (O'Donnell ;;.) 142 Ma«s. 505 ■ V. Osborn, 143 Mass. 185 ■ V. Rice, 130 Mass. 441 (Russell Paper Co. v.) 135 Mass. 588 539 - (Storms V.) 137 Mass. 201 - (Talcott V.) 142 Mass. 542 ■ V. Warner, 133 Mass. 71 . ■ V. Wells, 134 Mass. 11 . ■ I'. Wildes, 143 Mass. 556 Smith Charities (Delano v.) 138 Mass. 625, 703 34, 1046 . . 541 376, 452 . . 713 63 . 251 Smith Paper Co. v. Servin, 130 Mass. 511 472, 783 Smythe (Beldingu.) 138 Mass. 530 ... 180 Snow V. Alley, 144 Mass. 546 997 (Barnstable Savings Bank v.) 128 Mass. 512 881 (Commonwealth v.) 133 Mass. 575 . 912 V. Fitchburg, 136 Mass. 179 ... 893 V. Fitchburg, 136 Mass. 183 ... 893 V. Fitchburg Railroad, 136 Mass. 552 719 (Parker w.) 143 Mass. 423 .... 45 Soars V. Home Ins. Co., 140 Mass. 343 562, 623 Soliier v. Lamb, 134 Mass. 275 1033 Somerset (Swanzey v.) 132 Mass. 312 157, 1137 Somerville (Davis v.) 128 Mass. 594 . 640, 1091 V. Fiske, 137 Mass. 91 374 (Fuller V.) 136 Mass. 556 .... 116 (Roach V.) 131 Mass. 189 ... . 1100 (Rouse r.) 130 Mass. 361 .... 158 (Whitcher v.] 138 Mass. 454 . 1108, 1137 Somerville, Mayor, &c. of (Ayer v.) 143 Mass. 585 895 Sonier u. Boston & Albany Railroad, 141 Mass. 10 712 Soper (Commonwealth v.) 133 Mass. 393 . 779 Sorrell (Cheney Bigelow Wire Works v.) 142 Mass. 442 224,1140 Soule (Clark v.) 137 Mass. 380 654 (Dunbar v.) 129 Mass. 284 . 1010, 1140 (Kingman !).) 132 Mass. 285 . 453,777 (North Bridgewater Savings Bank - «.) 129 Mass. 528 66,209,7.33,776,881 (Walker!).) 138 Mass 570 . . . . 6".6 Southampton (Granville v.) 138 Mass. 256 768, 769, 77.3, 774 South Boston Horse Railroad (Hanlon v.) 129 Mass. 310 725 South Boston Irop Co. (Spicerw.) 138 Mass. 426 665 South Boston Railroad (Bradshaw v.) 135 Mass. 407 944 (Collins li.) 142 Mass. 301 '. '. '715,726 Southbridge Savings Bank v. Stevens Tool Co., 130 Mass. 547 472 South Building (Bowen «.) 137 Mass. 274 81,400 South Hadley (Agawam Bankw.) 128 Mass. 503 983 Southwick V. Atlantic Ins. Co., 133 Mass. 457 104, 5*5, 680 Spaulding (Backus v.) 129 Mass. 234 . 130, 411 (Fellows V.) 141 Mass. 89 . . . 357, 540 !'. Nourse, 143 Mass. 490 . . . 211, 409 (Parsons v.) 130 Mass. 83 .... 449 — V. Putnam, 128 Mass. 363 ... . 123 Spear (Commonwealth v.) 143 Mass. 172 672, 1135 Spellman v. Chicopee, 131 Mass. 443 . . . 1088 Spencer v. Leicester, 140 Mass. 224 . . . 770 Spencer Water Co, (Warren v.) 143 Mass. 9 .380, 1060, 1073, 1074 (Warren v.) 143 Mass. 155 896, 433, 439, 732 Spicer v. South Boston Iron Co., 138 Mass. 426 665 Spiegel (Moore v.) 143 Mass. 413 68, 381, 639, 996 Spink (Grinnell v.) 128 Mass. 25 5, 82, 399, 776, 795 Spofford V. Boston & Maine Railroad, 128 Mass. 326 170, 837 (Fennessey v.] 144 Mass. 22 . 410, 99S V. Loveland, 1.30 Mass. 6 .... 434 (Vinal V.) 139 Mass. 126 . . 48, 625, 6.39 Spooner v. Freetown, 1.39 Mass. 235 1098, 1105 V. Gilmore, 136 Mass. 248 ... . 796 V. Manchester, 133 Mass. 270 .. . 94 Sprague (Bigelow v.) 140 Mass. 425 423, 434, 435, 436, 439, 589, 617 (Commonwealth v.) 128 Mass. 75 . 908 1227 TABLE OF CASES. 1228 Spring V. Hyde Park, 137 Mass. 554 .. . 138 Springfield (Madden v.) 131 Mass. 441 1099, 1140 — (Mayo V.) 136 Mass. 10 1079 (Mayo v.) 138 Mass. 70 . . . 274, 090 Springfield Savings Institution (Wiiite v.) 134 Mass. 232 429, 612 Spurr (Arnold v.) 130 Mass. 347 .. . 21, 522 V. Dean, 139 Mass. 84 640 (Morrill v.) 143 Mass. 257 ... . 758 (Nims V.) 138 Mass. 209 . . 852, 855, 861 v. Shelburne, 131 Mass. 429 421, 589, 1092 (Woodward v.) 138 Mass. 592 .. . 540 (Woodward v.) 141 Mass. 283 526, 541 Squire (Curley v.) 141 Mass. 509 ... . 541 V. Hewlett, 141 Mass. 697 ... . 364 V. Lincoln, 137 Mass. 399 361, 370, 543, 546 Stafford v. New Bedford Savings Bank, 132 Mass. 315 947 Staigg V. Atkinson, 144 Mass. 564 ... 200 Stanchfield v. Newton, 142 Mass. 110 428, 429, 638, 1066, 1142 Standard Measuring Machine Co. (Porter v.) 142 Mass. 191 225 Standish v. Old Colony llailroad, 129 Mass. 158 43,51 Stanley (Murphy v.) 136 Mass. 133 . 418, 425 Stapleton v. Dee, 132 Mass. 279 .... 583 Stark (Butler K.) 139 Mass. 19 964 Starr (Commonwealth v.) 144 Mass. 359 643, 644 Star Union Transportation Co. (Frencli, v.) 134 Mass. 288 167, 878 Steamship Bulgarian Co. v. Merchants" Transp. Co., 135 Mass. 421 Stearns (Abbott v.) 139 Mass. 168 (Dalby v.) 132 Mass. 230 . , V. Dean, 129 Mass. 139 . . V. Herrick, 132 Mass. 114 . . (Morse v.) 131 Mass. 389 . 217 . 543 . 268 84, 739 ... 200 289, 351, 374, 1121 Stebbins (Desmond v.) 140 Mass. 339 . . 36 (Pray v.) 141 Mass. 219 412, 477, 521, 581, 597 Steele v. Boston, 128 Mass. 583 .... 977 Steinkrauss (Gage u.) 131 Mass. 222 ... 804 Stephan (Schramm v.) 133 Mass. 559 . . 107 Stetson (Hastings v.) 130 Mass. 76 411, 616, 618 ,v. Moulton, 140 Mass. 597 ... . 948 Stevens (Case v.) 137 Mass. 551 .... 274 . — (Commonwealth v.) 142 Mass. 457 49, 587, 917, 951 V. Dedham Savings Institution, 129 Mass. 547 632 1). Fisher, 144 Mass. 114 1024 • V. Hayden, 129 Mass. 328 ... . 338 (Ken worthy u.) 132 Mass. 123 . . 230 V. Miles, 142 Mass. 571 .. . 384, 404 . (Savage w.) 128 Mass. 254 . . 256,583 Stevens Tool Co. (South bridge Savings Bank V.) 130 Mass. 547 472 Stevenson (Commonwealth v.) 142 Mass. 466 390, 928 (Osgood w.) 143 Mass. 399 .... 38 Stewart (Central Mills w.) 1.33 Mass. 461 . 87 V. Griswold, 134 Mass. 391 443, 809, 811 (Langdon v.) 142 Mass. 576 ... 967 (Read v.) 129 Mass. 407 .... 521 Stickney v. Hammond, 138 Mass. 116 . . 1126 (Leonard v.) 131 Mass. 541 610, 782, 862 (Perkins v.) 132 Mass. 217 . 393, 429 Stiffw. Keith, 143 Mass. 224 95 Stimpson v. Poole, 141 Mass. 502 .... 12 Stimson v. Whitney, 130 Mass. 591 . 613, 759 Stinson (Moore u.) 144 Mass. 594 . . . .1002 Stock V. Wood, 136 Mass. 353 717 Stockbridge (Dunham v.) 133 Mass. 233 . 739 Stockwell V. Blaney, 129 Mass. 312 .. . 407 Stockwell V. Couillard, 129 Mass. 231 (Perkins a.) 131 Mass. 529 . Stoddard (Childs v.) 130 Mass. 110 V. Ham, 129 Mass. 383 , (Taft V.) 141 Mass. 150 . (Taft V.) 142 Mass. 545 , Stone's Case, 129 Mass. 156 Stone, petitioner, 138 Mass. 476 (Adams v.) 131 Mass. 433 V. Attleborough, 140 Mass. (Baker v.) 136 Mass. 405 (Davis Sewing Machine Co Mass. 384 ... V. Heath, 135 Mass. 561 . V. Houghton, 139 Mass. 175 V. Jenks, 142 Mass. 519 . V. Lahey, 133 Mass. 426 . V. Sargent, 129 Mass. 503 328 261, 279, 1138, 1141 . . 278 , 348 . 871 . 951 , 696 56, 256, 443 . . 1007 . . 616 . . 1090 379, 533 131 . . 605 . . 1081 . . 826 705, 864 . 62,598 91,416,440,869, 860, 1142 t'. Simonds, 131 Mass. 457 . . ( Wyeth V.) 144 Mass. 441 . . Storer (Allen v.) 1.32 Mass. 372 . . . (George Woods Co. v.) 144 Mass Storms V. Smith, 137 Mass. 201 . . Storrs (Floyd v.) 144 Mass. 56 . . . Story (Fears v.) 131 Mass. 47 . . . (Putnam?;.) 132 Mass. 205 • (Wallace v.) 139 Mass. 115 105, 440 16, 1139 338 399 351 625, 703 , ... 905 .... 489 64, 65, 67, 103, 297, 813, 1009 ... 409 Stowell V. Buswell, 135 Mass. 340 ... . 149 ■- (McCormick ti.) 138 Mass. 431 305, 419, 596, 1137 Stratton v. Hill, 134 Mass. 27 . . . 489, 1047 (Templeten v.) 128 Mass. 137 771, 1141 Street Commissioners (Gray v.) 138 Mass. 414 960, 1140 . . 962 939, 961 84, 703 . . 454 (Moors w.) 134 Mass. 431 (Pratt V.) 139 Mass. 559 . Streeter (Drew v.) 137 Mass. 460 , Studley v. Willis, 134 Mass. 155 . Sturges V. Theological Society, 130 Mass. 414 786 Sturgis V. Preston, 134 Mass. 372 . 80, 285, 637 Sturtevant (Maguire u.) 140 Mass. 258 . . 161 V. Pembroke, 130 Mass. 373 ... 6.32 V. Wallack, 141 Mass. 119 . . 412, 424 Suffolk County Auditor (Wheelock v.) 130 Mass. 486 • . 93 Sugden (Floyd u.) 134 Mass. 563 ... . 661 Sullings V. Ginn, 131 Mass. 479 . 211, 537, 545 Sullivan (Collins v.) 135 Mass. 461 ... 348 (Commonwealth!;.) 138 Mass. 191 . 910 (Davis V.) 141 Mass. 76 371 V. Fall River, 144 Mass. 579 .. . 1087 (Fall River Savings Bank v.) 131 Mass. 537 696 V. Holyoke, 136 Mass. 273 ... . 978 V. Langley, 128 Mass. 235 84, 103, 1036 V. Ne«r Bedford Institution for Sav- ings, 140 Mass 260 .. . 587, 883 (Phelps V.) 140 Mass. 36 .... 681 !>. Ryan, 130 Mass. 116 . . . 320,1139 V. Wentworth, 137 Mass. 233 202, 741, 801 Suter V. Billiard, 132 Mass. 412 . . 181, 1137 Swain (White v.) 138 Mass, 326 ... 62, 63 Swan V. Emerson, 129 Mass. 289 ... . 697 V. Hammond, 138 Mass. 46 ... 1125 V. Manchester & Lawrence Railroad, 132 Mass. 116 ... . 170, 171, 838 V. Warren, 138 Mass. 11 . . 68, 1139 Swanzey v. Somerset, 132 Mass. 312 . 157, 11.37 Swasey (Commonwealth v.) 133 Mass. 538 136, ' 185, 824, 828 ». Jaques, 144 Mass. 135 . 291, 823, 1140 Sweeney v. Boston & Albany Railroad, 128 Mass. 5 . . . . 725 1229 TABLE OP CASES. 1230 Sweeney (Commonwealth v.) 131 Mass. 579 786 D. Muldoon, 139 Mass. 304 . . 455,1117 Sweet (Barrows v.) 143 Mass. 316 .... 56 (National Rubber Co. v.) 129 Mass. 36 387 Swett V. Boyce, 134 Mass. 381 . . 65, 752, 777 (Dows v.) 134 Mass. 140 .... 489 (Nickerson v.) 135 Mass. 514 .. . 348 T. Taber i>. China Ins. Co., 131 Mass. 239 . . 571 i). Lawrence, 134 Mass. 94 ... . 992 V. New Bedford, 135 Mass. 162 1078, 1079 V. Wilcox, 136 Mass. 56 . 585, 870, 949 Tabor (Commonwealth v) 138 Mass. 496 . 926 Tacey v. Noyes, 143 Mass. 449 .. . 109, 820 Taft V. Bowker, 132 Mass. 277 . . 66, 187, 881 -- --- , 818 , 213 , 951 , 695 302 • V. Kske, 140 Mass. 250 (Patton V.) 143 Mass. 140 V. Stoddard, 141 Mass. 150 V. Stoddard, 142 Mass. 545 V. Taft, 130 Mass. 461 . V. Travis, 136 Mass. 95 . Taggart (Howe v.) 133 Mass. 284 124, 216, 422 Talbot ( Campbell v.) 132 Mass. 174 176, 252, 818 V. Commonwealth Bank, 129 Mass. 67 80, 121, 576 V. Taunton, 140 Mass. 552 440, 1093, 1094 Talcott V. Smith, 142 Mass. 542 . . 34, 1046 Tallman v. New Bedford Savings Bank, 138 Mass. 330 699, 883 Talmage (Dickinson v.) 138 Mass. 249 233, 270, 753 Tansey v. McDonnell, 142 Mass. 220 Tapley (Tufts u.) 129 Mass. 380 . Tappan (Tompson v.) 139 Mass. 506 Tarbell u. Jewett, 129 Mass. 457 . Tarbox (Ryan v.) 135 Mass. 207 . Tate V. Donovan, 143 Mass. 590 . Taunton v. Boston, 131 Mass. 18 ( Hubbard v.) 140 Mass. 467 (Talbot V.) 140 Mass. 552 . . 364 . . 377 686, 1058 456, 583 . . 661 . . 907 . . 768 976 440,' 1093, 1094 130 Mass. 407 486 398 Tavener (Atlantic Bank t;.) Tay (Hall K.) 131 Mass. 192 Taylor v. Carew Maniif. Co., 140 Mass. 150 666 V. Carew Manuf. Co., 143 Mass. 470 667 (Commonwealth v.) 1.32 Mass. 261 3, 393 V. Foster, 132 Mass. 30 6."5 (Gibbs V.) 143 Mass. 187 444, 456, 802, 812 V. Jacobs, 138 Mass. 148 .... 810 (Minot V.) 129 Mass. 160 . . 295, 3-52 (Richardson w.) 136 Mass. 143 . . 340 y. Woburn, 130 Mass. 494 612, 1088, 1099, 1100,1102,1104 Teague v. Irwin, 134 Mass. 303 . . 788, 1129 Tealian (Octo v.) 133 Mass. 430 .... 801 Teele i,-. Hathaway, 129 Mass. 164 . . . 301 Teevens (Commonwealth v.) 141 Mass. 577 951 Templeton v. Stratton, 128 Mass. 137 771, 1141 V. Winchendon, 138 Mass. 109 . . 767 (Wright w.) 132 Mass. 49 . . 1095, 1096 Terry v. Brightman, 129 Mass. 535 V. Brightraan, 132 Mass. 318 V. Brightman, 133 Mass. 536 Tewksbury (Floyd v.) 129 Mass. 362 37, 751 . 39 . 847 . 34 182, 291 Thacher v. Moors, 134 Mass. 156 Thatcher (Hinckley v.) 139 Mass. 477 Thayer w.' Finnegan, 134 Mass. 62 304, 309, 449 (Goodenougli v.) 1.32 Mass. 152 . . 30 V. Keyes, 136 Mass. 104 .... 634 (Lothrop V.) 138 Mass. 466 ... 599 V. Thaver, 129 Mass. 189 .... 1008 (Winchester v.) 129 Mass. 129 360, 399, 633, 537, 551 Thayer v. Winchester, 133 Mass. 447 . . . 453 (Worcester Mechanics' Savings Bank V.) 136 Mass. 459 ' . 685 __ __- ^ ^^g The Literati v. Heald, 141 Mass. 326 Theological Education Society v. Attorney General, 135 Mass. 285 ... . Theological Society (Sturgesu.) 130 Mass. 414 Third National Bank v. Skillings, &c. Lum- ber Co., 132 Mass. 410 ... . Thomas v. Bleakie, 136 Maes. 568 . . . . V. Knowles, 128 Mass. 22 .... 781 736 351 955 230 ■ V. Wells, 140 Mass. 517 . . 24,677 Thompson (Danvers Savings Bank v.) 130 Mass. 490 860 (Danvers Savings Bank v.) 133 Mass. 182 860 (Dolanu.) 129 Mass. 205 .... 645 V. Dolliver, 132 Mass. 103 ... . 799 V. Heywood, 129 Mass. 401 . . 362, 696 (Johnson v.) 129 Mass. .398 . . 376, 687 (Manufacturers' Bank v.) 129 Mass. 438 97, 133 (Merchants' Bank v.) 133 Mass. 482 187 V. Thompson, 140 Mass. 28 ... . Thorndike (Brandenburg v.) 139 Mass. 102 . 1017 782, 1120 . . . 452 . . . 1119 ... 506 ... 401 75, 214, 429 Thwing V. Clifford, 136 Mass. 482 .. . 36, 434 Thyng (Commonwealth v.) 134 Mass. 191 . 458, 1131, 11.32 Tidgewell (Bryant v.) 133 Mass. 86 . 907, 1135 Tileston v. Brookline, 134 Mass. 438 .. . 1068 (Neponset Meadow Co. v.) 133 Mass. 189 (Choate v.) 138 Mass. 371 . (Cochran v.) 133 Mass. 46 . Thome V. Brown, 139 Mass. 35 . . Thornell v. Brockton, 141 Mass. 151 Thurston v. Perry, 130 Mass. 240 . Tillinghast (McCann v.) 140 Mass. 327 Tillotson (Russfell v.) 140 Mass. 201 . Tilton (Butrick v.) 141 Mass. 93 . . . ■(Claflinw.) 141 Mass. 343 ■ (Jones V.) 139 Mass. 418 . 206 791 655 276, 277, 282, 850 . . 308 . 72, 1040 . . 979 191 Tindley v. Salem, 137 Mass. 171 . Tirrell (Cobb v.) 137 Mass. 143 .. . (Cobb V.) 141 Mass. 459 135 V. Freeman, 139 Mass. 297 ... . 219 V. Kenney, 137 Mass. 30 .... 318 Tisdale (Washburn v.) 143 Mass. 376 . . . 541 Tobey v. Moore, 130 Mass. 448 . . 194, 326, 780, 1137 Tobias (Commonwealth v.) 141 Mass. 129 . 670, 1049 Tobin (Brooks v.) 135 Mass. 69 510 ». Jones, 143 Mass. 448 1129 Todd V. Bishop, 136 Mass. 386 . . ,36, 287, 418, 579, 798, 846 (Kent 1;.) 144 Mass. 478 598 Toledo, Cincinnati, & St. Louis Railroad (Post & Co. V.) 144 Mass. 341 . . 345 Tompkins v. Halleck, 133 Mass. 32 . . . 639 Tompson (Chesley v.) 137 Mass. 136 .. . 619 (Kellogg V.) 142 Mass. 76 . 402, 428, 430, 799, 995 1231 TABLE OF CASES. 1282 Tompson v. Tappan, 139 Mass. 506 . 686, 1058 Tooniey (Calnan v.) 129 Mass. 451 . . . . 807 Topeka, &c. Railroad (Kansas Construction Co. V.) 135 Mass. 34 901 Toppin (Dean v.) 130 Mass. 517 611 Torr (Dove v.) 128 Mass. 38 . . 289, 1138, 1139, 1142 Torrey v. Fenton, 130 Mass. 329 .... 132 (Fentonw.) 133 Mass. 138 . ^ (Fitchburg Savings Bank v Mass 239 (Fowler.) 13l' Mass. 289 (Fowle V.) 135 Mass. 87 . Touhey (Asbton v.) 131 Mass. 26 Tourtellotte (Barney k.) 138 Mass. 106 . 7,696 134 . . 954 . . 360 525, 762 39, 255, 1051 ' 520, 822 Towle (Commonwealtb v.) 138 Mass. 490 . 917 V. Delano, 144 Maes. 95 - . . 301, 1137 Towne (Norman v.) 130 Mass. 52 ... . 1003 V. Wason, 128 Mass. 517 128 V. Weston, 132 Mass. 513 .... 306 Townsend v. Webster Savings Bank, 143 147 885 Trabandt v. Connecticut Ins. Co., 131 Mass. 167 567 Traeey v. Grant, 137 Mass. 181 .... . 890 Tracy (Daggett K.) 128 Mass. 167 .... 847 Trade Ins. Co. (Johnston v.) 132 Mass. 432 . 198, 254, 575, 1144 Traders & Mechanics' Ins. Co. v. Brown, 142 Mass. 403 575 Traders' Ins. Co. (New York Express Co. V.) 132 Mass. 377 . . , . . 7, 553 (New York Express Co. v.) 135 Mass. 221 431 Train v. Boston Disinfecting Co., 144 Mass. 623 139,140,797 -^,.— V. Kendall, 137 Mass. 366 ... . 71 Trainer v. Trumbull, 141 Mass. 527 .. . 534 Trambly v. Ricard, 130 Mass. 259 ... . 480 Travelers' Ins. Co. (Freeman v.) 144 Mass. 572 397, 420, 570 Travellers' Ins. Co. ( Tuttle w. ) 134 Mass. 175 569 Travis (Taftw.) 136 Mass. 95 8^6 Treat v. Boston & Lowell Railroad, 131 Mass. 371 171^718 II. Joslyn, 139 Mass. 94 150 Tremont Bank Porrw.) 128 Mass. 349 . . 368, 873, 410, 815 Trider (Commonwealth v.) 148 Mass. 180 . 18, 1136 Tripp V. New Metallic Packing Co., 137 Mass. 499 .. . 224, 406, 409, 614 Trowbridge v. Brookline, 144 Mass. 139 . . 895 (Sherer v.) 135 Mass. 500 ... . 489 Troy V. Sargent, 132 Mass. 408 .. . 360, 567 True V. Dillon, 138 Mass. 347 796 Truesdell (Allen v.) 135 Mass. 75 . . 273, 613 Trumbull (Goodsellt!.) 1.35 Mass. 99 ... 795 (Trainer v.) 141 Mass. 527 ... . 634 Truro (Provincetown «.) 135 Mass. 263 . . 1086 Try on (Judd i-.) 131 Mass. 345 590 Tucker v. Deshon, 129 Mass. 559 .... 957 (Holdsworth v.) 143 Mass. 369 1048, 1059 V. Howard, 128 Mass. 361 ... . 353 (Jewett V.) 139 Mass. 566 . . 861, 690 Tufts V. Tapley, 129 Mass. 380 377 TuUy V. Fitchburg Railroad, 134 Mass. 499 . 273, 412, 589, 612, 710, 725 TurnbuUw. Pomeroy, 140 Mass. 117 . . .1018 Turner v. Estabrook, 129 Mass. 425 ... 316 (Powell B.) 139 Mass. 97 44 V. Robbins, 133 Mass. 207 ... . 205 V. Sisson, 137 Mass. 191 741 Turner's Falls Co. (Comins v.) 138 Mass. 222 938 (Comins v.) 140 Mass. 146 .... 434 (Comins v.) 142 Mass. 443 . . 675, 1060 (Holmes w.) 142 Mass. 590 . . 153,380, 442, 601, 681, 851 Tuttle (Pratt v.) 136 Mass. 233 345 V. Travellers' Ins. Co., 134 Mass. 175 569 (Vinal V.) 144 Mass. 14 811 Twombly v. Monroe, 136 Mass. 464 . 614, 616, 989 (Whitney D.) 136 Mass. 145 - . .1122 Twomey v. Crowley, 137 Mass. 184 . 277, 999 Tyler v. Boyce, 135 Mass. 558 . . 633, 848, 890, 1119 V. Brigham, 143 Mass. 410 . 371, 690, 695 V. New York & New England Rail- road, 137 Mass. 238 724 Tyng V. Boston, 133 Mass. 372 161 u. Uhrig (Commonwealth v.) 138 Mass, 492 . 926 Ulsch V. Muller, 143 Mass. 379 .... . 135 Underwood v. Boston Five Cents Savings Bank, 141 Mass .305 . . . 754, 884 Union Freight Railroad (Bigelow v.) 137 Mass. 478 253 Union Institution for Savings v. Hill, 139 Mass. 47 10 Union Mill Co. (New Bedford Savings Bank J). ) 128 Mass. 27 102 Union Pacific Railroad t: Credit Mobilier, 135 Mass. 367 249 (Hinckley v ) 129 Mass. 52 . . 126, 132 Union Railway (Brookhouse v.) 132 Mass. 178 944 (Fleck V.) 1.34 Mass. 480 . . . 172, 718 Union Savings Bank v. Pool, 143 Mass. 203 353 Union Savings Institution v. Boston, 129 Mass. 82 575 Union Stone Co. (Rogers v.) 130 Mass. 581 . 40, 442, 750 (Rogers v.) 134 Mass. 81 . . 30, 67, 103, 215, 248, 744 United Hebrew Association v. Benshimol, 130 Mass. 325 . . 216, 238, 253, 937 Upham V. Marsh, 128 Mass. 546 1087 V. Raymond, 132 Mass. 186 . . 207, 550 Upton (Holden v.) 134 Mass. 177 . . 242, 359 Uxbridge (Brockton v.) 138 Mass. 292 . 770, 774, 900 (Milford V.) 130 Mass. 107 . . 768, 771, 1138, 1140 — ■ V. Northbridge, 131 Mass. 454 . , . 772 1233 TABLE OP CASES. 1284 V. Valentine (Anthony .) ISO Mass. 119 . . 339 V. Middlesex Railroad, 137 Mass. 28 726, 816 Valpey (Flint!).) 130 Mass. 385 457 V. Rea, 130 Mass. 384 536 Vannevar (Levin v.) 137 Mass. 532 . . 400, 426 Vass V. Wales, 129 Mass. 38 . . . 51, 215, 223 Taughan (Wareham Savings Bank v.) 133 Mass. 534 ; 541 Veale v. Boston, 135 Mass. 187 1089 Viaux «. Old South Society, 133 Mass. 1 35, 1141 Viles V. Harris, 130 Mass. 300 542 Vinal V. Spofford, 139 Mass. 126 . . 48, 625, 639 V. Tuttle, 144 Mass. 14 811 Vitrified Wheel & Emery Co. v. Edwards, 135 Mass. 591 816 Volger V. Ray, 131 Mass. 439 1053 Von Zedlitz (Jackson v.) 136 Mass. 342 . . 1005 (Rau V.) 132 Mass. 164 . . 320, 346, 362, 901 Vose (Derome v.) 140 Mass. 575 . 80, 115, 511, 1003 w. W V. W , 141 Mass. 495 ... . 313 Waohendorf ( Commonwealth v.) 141 Mass. 270 927 Wadhams (Richmond Iron Works v.) 142 Mass. 569 20 Wadsworth v. Glynn, 131 Mass. 220 .. . 132 Wainwright (Old South Society!).) 141 Mass. 443 152 Wait (Commonwealth !i.) 131 Mass. 417 49, 854, 1063 Wakefield (Morewood v.) 133 Mass. 240 . 315 Waldron (Gurney v.) 137 Mass. 376 536, 580, 825 -^ V. Haverhill, 143 Mass. 582 ... . 980 Wales V. Chase, 1.39 Mass. 538 602 (Vass V.) 129 Mass. 38 . . 51, 215, 223 Walker v. Boston & Maine Railroad, 128 * Mass. 8 659 (Carpenter v.) 140 Mass. 416 .. . 473 V. Cook, 129 Mass. 577 1038 (Decatur v.) 137 Mass. 141 ... 322 V. Flynn, 130 Mass. 151 403 V. Mayo, 143 Mass. 42 .... 8, 192 (Murphy.!;.) 131 Mass. 341 . . .48,509 V. Robinson, 136 Mass 280 . . 633, 819 — ■ ' V. Soule, 138 Mass. 570 636 (Weld i;.) 130 Mass. 422 .. . 159, 372 !). West Boylston, 128 Mass. 550 983, 1086 Wall (Palmer v.) 128 Mass. 475 261 Wallace (Commonwealth v.) 143 Mass 88 915, 921 !). Merrimack River Navigation, &c. Co., 134 Mass. 95 640 V. Story, 139 Mass. 115 409 Wallack (Sturtevant !;.) 141 Mass. 119 412, 424 Walpole V. Quirk, 143 Mass. 72 794 Walsh V. Anderson, 135 Mass. 65 . . 447, 740 (Bell V.) 130 Mass. 163 . . 440, 443, 444 (Commonwealth I). ) 132 Mass. 8 . . 60 V. Wilson, 130 Mass. 124 .... 317 V. Wilson, 181 Mass. 535 . . 317, 1139 Waltham (Clark!;.) 128 Mass. 567 ... 978 (Wormwood!).) 144 Mass. 184 . .1102 Walton u. New York Central Sleeping Car Co., 139 Mass. 556 654 Walworth ( Washburn v.) 133 Mass. 499 958, 965 Wamesit Power Co. v. Lowell & Andover Railroad, 130 Mass. 455 . . 421, 832 V. Lowell & Andover Railroad, 139 Mass. 173 951 Wamsutta MiUs v. Old Colony Steamboat Co., 137 Mass. 471 572 Ward (Blake v.) 137 Mass. 94 822 (May >.;.) 134 Mass. 127 491 (Rawson v.) 128 Mass. 562 ... . 988 Warden (Commonwealth v.) 128 Mass. 52 . 615 V. Etter, 143 Mass. 19 . . . .477 Warden u. Old Colony Railroad, 137 Mass. 204 653 Wardle i;. Briggs, 131 Mass. 518 ... . 1037 Wardwell (Commonwealth v.) 136 Mass. 164 418, 621 Ware d. Allen, 140 Mass. 513 1065 Wareham (Easton !;.) 131 Mass. 10 . ... 772 (West Bridgewater v.) 138 Mass. .305 305, 770, 974 Wareham Savings Bank v. Vaughan, 133 Mass. 534 541 Warfield v. Fisk, 136 Mass. 219 688 Warner (Brewster u.) 136 Mass. 57 . . . 752 V. Collins, 135 Mass. 26 . . 53, 2.56, 855 V. ErankUn, 131 Mass. 348 . . 178, 1080 D.Jones, 140 Mass. 216 432 (Smith V.) 133 Mass. 71 541 Warren (Brookfield d.) 128 Mass. 287 405, 746, 767 (Commonwealth d.") 143 Mass. 568 705. 1050 V. James, 130 Mass. 540 . . . 475, 697 V. Lord, 131 Mass. 560 87 V. Spencer Water Co., 143 Mass. 9 380, 1060, 1073, 1074 V. Spencer Water Co., 143 Mass. 155 396, 433, 439, 732 (Swan!).) 1.38 Mass. 11 . . . 68,11.39 D. Warren Thread Co., 134 Mass. 247 543, 987 Warren Thread Co. (Warren v.) 134 Mass. 247 543,987 Warwick (Boston!).) 132 Mass. 519 ... 769 Washburn (Commonwealth v.) 128 Mass. 421 49, 531 V. Commonwealth, 137 Mass. 139 . 497 (Folgeri).) 137 Mass. 60 .... 645 V. Tisdale, 143 Mass. 376 .... 541 t). Walworth, 133 Mass. 499 . .958,965 D. White, 140 Mass. 568 108 Washburn Iron Co. v. Russell, 130 Mass. 543 874 Washington Ins Co. (Reed v.) 138 Mass. 572 562, 565 Washington Mills Manuf. Co. v. Weymoutli Ins. Co., 135 Mass. 503 554, 5.56,661 Wason (Hyde !;.) 131 Mass. 450 . . 351,1006 1235 TABLE OF CASES. 1236 "Wason (Towne t>.) 128 Mass. 517 ... . 128 Wason Manuf. Co. (Wheeler v.) 135 Mass. 294 417, 651, 652, 661 Wass V. Mugridge, 128 Mass. 394 ... . 900 Watertown (Baker v.) 137 Mass. 227 960, 1138, 1140 (Gilkey v.) 141 Mass. 317 350, 1080, 1085 Watertown Ins. Co. (Allen v.) 132 Mass. 480 687, 11.38 (Houghton V.) 131 Mass. 300 .. . 221 V. Simmons, 131 Mass. 85 ... . 142 (Wheeler v.) 131 Mass. 1 28, 51, 553, 554 Watkins v. Goodall, 138 Mass. 533 . 604, 712 I). Watkins, 135 Mass. 83 .... 312 Watriss v. Cambridge Bank, 130 Mass. 343 . 269 Watson (Clark v.) 141 Mass. 248 ... . 85 (Hadley w.) 148 Mass. 27 . . .436,870 V. Watson, 128 Mass. 152 .. . 332, 376 Watuppa Reservoir Co. v. i'all Eiver, 134 Mass. 267 1068 1). Mackenzie, 132 Mass. 71 136, 248, 320 Way V. Batehelder, 129 Mass. 361 .... 134 V. Brigham, 138 Mass. 384 . . 56, 93, 806 V. Mullett, 143 Mass. 49 690 (Ridgeway Stove Co. i'.) 141 Mass. 557 474 Weare (Safford «.) 142 Mass. 231 . . 587, 851 Weaver (Casev v.) 141 Mass. 280 . . 628, 778 (Holcombw.) 136 Mass. 265 ... 218 (Sexton V.) 141 Mass. 273 .... 627 Weber (Bishop v.) 1.39 Mass. 411 . . 790, 1143 V. Couch, 134 Mass. 26 857 (Hastings!).) 142 Mass. 232 ... 491 Webquish (Pells v.) 129 Mass. 469 . 376, 529 Webster v. Lowell, 139 Mass. 172 . . 7.53, 1109 V. Lowell, 142 Mass. 324 1109, 1110, 1115, 1139 (Murphy v.) 131 Mass. 482 . 160, 802 (Phelps V ) 134 Mass. 17 148 V. Real Estate Improvement Co., 140 Mass. 626 627 Webster Savings Bank (Townsend v.) 143 Mass. 147 885 Weeks (Glines v.) 137 Mass. 547 .... 451 (Perry ».) 137 Mass. 684 848 Weil V. Golden, 141 Mass. 364 908 V. Raymond, 142 Mass. 206 . . . . 343 Welch (Commonwealth v.) 140 Mass. 372 . 910 (Commonwealth v.) 142 Mass. 473 . 918 (Commonwealth v.) 144 Mass. 356 . 937 K. Gardner, 133 Mass. 529 . . 612,1103 (Low V.) 139 Mass. 33 544 (Murphy v.) 128 Mass. 489 248, 276, 680, Q1 Q Weld (Harding v.) 128 Mass. 587 ... . 508 ( Holt V.) 140 Mass. 578 369, 384, 826, 966 (Lodge 11.) 139 Mass. 499 . . 764,11,39 V. Walker, 130 Mass. 422 . . 1-59, 372 Weller v. Weller, 131 Mass. 446 . . 316, 513, 579 Wellman (Dearborn v.) 130 Mass. 2,38 . . 988 Wellesley (Needham v.) 139 Mass. 372 886, 987 Wellington (Hapgoodi).) 136 Mass. 17 . . 124 Wells V. Connable, 138 Mass. 513 . . 789, 994 (Kinneen v.) 144 Mass. 497 . . 211, 1056 (OllifTei).) 130 Mass. 221. . . 181,998 (Smith w.) 134 Mass. 11 . . . 376,452 (Thomas v.) 140 Mass. 517 . . . 24, 577 V. Williams, 136 Mass. 333 ... . 1013 V. White, 142 Mass. 518 549 Welsh V. Macomber, 130 Mass. 28 n. . . . 44ii V, Woodbury, 144 Mass. 542 .. . 305 Wentworth v. Daly, 1.36 Mass. 423 . . 400, 679 V. Eastern Railroad, 143 Mass. 248 . 727 . (Papineaut;.) 136 Mass. 543 . 624,10.58 (Sullivan v.) 137 Mass. 233 202,741,801 (WoodrufE V.) 133 Mass. 309 217, 248, 1047 Werner (Hamlen v.) 144 Mass. 396 ... 284 Wesson v. Commonwealth, 144 Mass. 60 952, 1138 Westborough (Matthews v.) 131 Mass. 521 . 980 ( Matthews u. ) 1 34 Mass. 555 398, 404, 98 1 ( Wood V.) 140 Mass. 403 841, 692, 754, 939 West Boylston (Gleason v.) 136 Mass. 489 . 536 (Walker v.) 128 Mass. 550 . . 983, 1086 West Bridgewater u. Wareham, 138 Mass. 305 770, 974 Westchester Ins. Co. (Dailey v.) 131 Mass. 178 558,1141 Western Assurance Co. (Butterworth v.) 132 Mass. 489 91, 421, 430, 563, 560, 562, 564,866, 1137 Western Union Telegraph Co. v. Caldwell, 141 Mass. 489 341 . . 969 . 13,977 958, 1140, 1141 . . 783 221, 222, 795, 1131 . . 636 (Clement v.) 137 Mass. 463 , Westfield (Hull v.] 133 Mass. 438 . . Westford (Hittinger v.) 135 Mass. 258 Westgate v. Wixon, 128 Mass. 804 . Weston (Crawford v.) 131 Mass. 283 V. Hodgkins, 136 Mass. 326 . V. Jenkins, 128 Mass. 562 ... . 297 (Towne K.) 182 Mass. 518 .... 300 V. Weston, 143 Mass. 274 ... . 814 Westport (Hicks v.) 130 Mass. 478 ... 967 Wetherbee v. Winchester, 128 Mass. 293 . 578 Weymouth Ins. Co. (Washington Mills Manuf. Co. V.) 135 Mass. 503 . 554, 556, 561 Whalen (Commonwealth v.) 131 Mass. 419 155, 1141 Wheeler (Boyce v.) 133 Mass. 554 . . . 433, 755 (Lamed v. ) 140 Mass. 390 790, 984, 1056 V. Ravmond, 130 Mass. 247 85, 86, 87, 522 V. Wason Manuf. Co., 135 Mass. 294 417, 661, 652, 661 V. Watertown Ins. Co., 131 Mass. 1 28, 51, 553, 554 V. Young, 143 Mass. 143 ... . 637, 778 Wheeler & Wilson Manuf. Co. v. Burlingham, 137 Mass. 581 '. . 48 Wheelhouse v. Parr, 141 Mass. 593 .... 874 Wheelock v. Auditor of Suffolk, 130 Mass. 486 93 Wheelwright v. Boston & Albany Railroad, 135 Mass. 225 711 Whelan (Commonwealth v.) 134 Mass. 206 912, 929 Whidden (Moynihan v.) 143 Mass. 287 615, 708 Whipple V. Fairchild, 139 Mass. 262 .. . 1017 Whitaker v. Greer, 129 Mass. 417 ... . 317 Whitcher (Harlow v.) 1.36 Mass. 653 .. . 857 V. Somerville, 138 Mass 454 1108, 1137 Whitcomb ( Brayman v.) 134 Mass. 525 378, 863, 1142 (Proctor V.) 134 Mass. 428 ... . 187 (Proctor V.) 137 Mass. 303 188, 189, 1142 White V. Allen, 133 Mass. 428 . . 235, 273, 457 (Barton v.) 144 Mass. 281 208, 545, 766, 767, 940 V. Boston & Albany Railroad, 144 Mass. 404 727 ■ V. Chapin, 134 Mass. 2-30 ■ V. Chase, 128 Mass. 158 . • V. Coleman, 1.30 Mass. 316 ■ (Daggett V.) 128 Mass. 898 . V. Ditson, 140 Mass. 351 3.56 52, 399, 583 ... 66 . 453, 1024 383, 415, 451, 677, 1026 . 273, 736 ■ V. Dresser, 136 Mass. 150 • I'. Duggan, 140 Mass. 18 . ■ V. Dunn, 134 Mass. 271 ... . 15, 896 - V. Fitchburg Railroad, 136 Mass. 321 719, 839 - (Gates u.) 139 Mass. 853 453 - (Eeene v.) 136 Mass. 23 . . . 868, 949 1237 TABLE OF CASES. 1238 White «. Lang, 128 Mass. 598 . . . .315,641 V. Middlesex Railroad, 135 Mass. 216 218 V. Morse, 139 Mass. 162 590 V. Nonantum Worsted Co., 144 Mass. 276 664 (Pratt V.) 132 Mass. 477 414 V. Springfield Savings Institution, 134 Mass. 232 429,612 V. Swain, 138 Mass. 325 ... . 62, 63 (Washburn v.) 140 Mass. 568 .. . 108 (Wells I). ) 142 Mass. 518 .... 549 (Willett V.) 141 Mass. 61 .... 389 (Wright V.) 136 Mass. 470 ... . 1013 Whitehead (Howe o.) 130 Mass. 268 .. . 391 Whitehead & Atherton Machine Co. (Jen- nings V.) 138 Mass. 594 401, 431, 1133 V. Kyder, 139 Mass. 366 271, 442, 879 Whiting (Dickinson ti.) 141 Mass. 414 . . 1114 ■— V. Massachusetts Ins. Co., 129 Mass. 240 27, 567 Whitman v. Groveland, 131 Mass. 553 157, 168, 159 Whitmore (Brooks v.) 139 Mass. 356 1026, 1027, 1137, 1140 (Brooks V.) 142 Mass. 399 ... . 1027 (Wilson!).) 140 Mass. 469 .... 11 Whitney (Attorney General v.) 13^ Mass. 450 328 V. Closson, 138 Mass. 49 1119 V. Eliot National Bank, 137 Mass. 3.51 . 119,543 (Goddardw.) 140Mas8. 92 . . . .1018 V. Gross, 140 Mass. 232 717 u. Leominster, 136 Mass. 25 . . . 1096 V. Leominster Savings Bank, 141 Mass. 85 366 V. Pullman's Palace Car Co., 143 Mass. 243 173,713,840 V. Twombly, 136 Mass. 145 ... 1122 (Stimson v.) 130 Mass. 591 . . 613, 759 ( Winchester v.) 138 Mass. 549 134, 406, 429 Whittaker (Commonwealth v.) 131 Mass. 224 382 Whittemore (Belcher V.) 134 Mass. 330 . . 760 Whittier (Downer «.) 144 Mass. 448 . .189,578 Whittier Machine Co. (Mattey v.) 140 Mass. 337 714 Whitwell V. Winslow, 132 Mass. 307 . 408, 498 V. Winslow, 134 Mass. 343 120, 133, 377, 399 Whorf V. Equitable Ins. Co., 144 Mass. 68 574, 1139 Wiggin V. Atkins, 136 Mass. 292 143, 740, 741 Wigglesworth (Sherwin v.) 129 Mass. 64 . 812 Wigton V. Bowley, 130 Mass, 252 ... . 874 Wilbraham (Baldwin v.) 140 Mass. 459 951, 975 Wilbur V. Maxam, 133 Mass. 541 ... . 352 Wilcox (Lucas v.) 135 Mass. 77 . . . 269, 1142 V. New Bedford, 140 Mass. 570 . . 1084 (Ross V.) 134 Mass. 21 632 (Taber v.) 136 Mass. 56 • 585, 870, 949 Wilder v. Colby, 124 Mass. 377 ... . 73, 82 (McLauthlin v.) 138 Mass. 393 . . 430 (Old Colony Railroad v.) 137 Mass. 536 177 Wildes (Smith v.) 143 Mass. 556 ... . 713 Wilkie V. Day, 141 Mass. 68 ... . 799, 1139 Wilkins v. Jenkins, 136 Mass 38 .... 549 V. Jewett, 139 Mass. 29 . . . 766, 938 Wilkinson (Johnson v.) 1.39 Mass. 3 . 490, 623 Willcox V. Foster, 132 Mass. 320 .... 347 Willett V. Rich, 142 Mass. 356 1062 V. White, 141 Mass. 61 389 Williams (Attorney General v.) 140 Mass. 329 369,534,1114 (Bergin v.) 138 Mass. 544 . . 236, 400 Williams o. Boston Water Power Co., 134 Mass. 406 326 - V. Churchill, 137 Mass. 243 ■ V. Clark, 140 Mass. 238 . . ■ (Copp f.) 135 Mass. 401 - (Dennie v.) 135 Mass. 28 - (Dickason v.) 129 Mass. 182 - (Dineen v.) 138 Mass. 367 . • V. Powle, 132 Mass. 385 . - (Gibbons v.) 135 Mass. 333 . - V. Kimball, 132 Mass. 214 . - V. Kimball, 135 Mass. 411 . - (Leahey v.) 141 Mass. 345 . ■ V. McGaffigan, 132 Mass 122 - (McKira V.) 134 Mass. 136 . - (Mann v.) 143 Mass. 394 . ■ V. Mercer, 139 Mass. 141 . . - B. Mercer, 144 Mass. 413 . . -(Metcalfiv) 144Ma8s,452 . ■ «. Parker, 136 Mass. 204 . . -(Wells;;.) 136Ma8s.. 333. . - V. Williams, tcl Mass. 533 . - V. Williams, 132 Mass. .304 . • V. Williams, 133 Mass. 587 . • V. Williams, 142 Mass. 515 . Williamson W.Cambridge Railroad, 144 ... 653 323 200, 417, 703, 740, 752, 1058 ... 422 ... 683 ... 108 179, 262, 268, 542 . 714 807, 808 . 809 . 25 . 475 . 508 . 407 . 10 9 . 27 . 246 . 1013 . 519 . 747 . 257 . 1125 148 385, 411, 946 Willis (McDonald V.) 143 Mass. 452 (Studley v.) 134 Mass. 155 . Williston (Central National Bank v Mass. 244 (Newell u.) 138 Mass. 240 Wills V. Lynn & Boston Railroad, 129 351 Wilmer (Sewall v.) 132 Mass. 131 ■ . Wilson (Blood v.) 141 Mass. 25 . . Bryant, 134 Mass. 291 Mass. 138 629 454 241 241 Mass. 171, 717 196, 288 . 81 262, 525, 539 V. Fall River Herald Publishing Co., 143 Mass. 581 619 (Goodrich v.) 135 Mass. 31 . . 685, 949 (Guernsey v.) 134 Mass. 482 ... 472 V. Lawrence, 139 Mass. 318 . . 442, 878 (McKinney v.) 133 Mass. 131 286, 406, 869, 875 V. New Hampshire Ins. Co., 140 Mass. 210 V. Powers, 1.30 Mass. 127 . V. Powers, 131 Mass. 539 . V. Russell, 136 Mass. 211 — '■ V. Sleeper, 131 Mass. 177 (Walsh- «.) 130 Mass. 124 (Walsh V.) 131 Mass. 535 V. Whitmore, 140 Mass. 469 Wimpenny (Silva v.) 136 Mass. 253 Winchendon (Templeton v.) 138 Mass. Winchester (Holmes v.) 133 Mass. 140 (Holmes v.) 135 Mass. 299 V. Holmes, 138 Mass. 540 (Holmes v.) 138 Mass. 542 (Nelson v.) 133 Mass. 435 V. Siblev, 132 Mass. 273 . V. Thayer, 129 Mass. 129 227 214 215 398 ,863 625 317 317 11 20 109 767 317, 546 . 547 357, 544 514, 580 . 54(i . 635 360, 399, 533, 537, 551 (Thayer a.) 133 Mass. 447 .... 453 (Wetherbee v.) 128 Mass. 293 . . . 578 v. Whitney, 138 Mass. 549 134, 406, 429 Windram (Pacific Bank v.) 133 Mass. 175 67, 522, 1005 Winn (Alley u.) 134 Mass. 77 519 Winship (Dodd v.) 1.33 Mass. 3-59 .... 1034 (Dodd V.) 144 Mass. 461 303, 1035, 11.38 Winslow ". Plimpton, 134 Mass. 44 ... 788 (Whitwell V.) 1.S2 Mass. 307 . 408, 498 (Whitwell V.) 134 Mass. 343 120, 1.S3, 377, 399 1239 TABLE OF CASES, 1240 Winthrop v. Attorney-General, 128 Mass. 258 182 Wiseman (Morrill v.) 134 Mass. 252 n. 257, 821 Witherell (Atkins v.) 142 Mass. 482 .. . 675 Witherspoon (Martin v.) 135 Mass. 175 786, 937 Witiiington (Kimball i>.) 141 Mass. 376 . . 283 Witt (Dodd V.) 139 Mass. 63 150 (Johnson v.) 188 Mass. 79 . . 729, 731 Wixon (Westgafe v.) 128 Mass. 304 .. . 783 Wixted (Hogan v.) 138 Mass. 270 . . 349, 970 Woburu (Cowdrey «.) 136 Mass. 409 443, 1069, 1070 (Taylor v.) 130 Mass. 494 612, 1088, 1099, 1100, 1102, 1104 Wolcott V. Frissell, 134 Mass. 1 . . . .89, 778 V. Wolcott, 140 Mass. 194 ... . 822 Wolffsohn (Diettrich v.) 136 Mass. 335 . 40, 86, 703 (Moebs V.) 143 Mass. 130 . . 589, 742 (O'Neil V.) 137 Mass. 134 . . 442, 523 Wonson i. Fenno, 129 Mass. 405 ... . 901 Wood (Bowers v.) 143 Mass. 182 ... . 108 V. Boylston Bank, 129 Mass. 358 29, 89, 31, 66 885 463 198 . 633 . 455 45«, 887 . 980 . 576 512, 541 ■ (Commonwealth v.) 142 Mass. 459 ■ V. Donovan, 132 Mass. 84 . • V. Cutter, 138 Mass. 149 . . • V. Graves, 144 Mass. 365 ■ (Guernsey v.) 130 Mass. 503 ■ (Jenkins v.] 134 Mass. 115 . ■ (Jenkins v.) 140 Mass. 66 - (Jenkins v.) 144 Mass. 238 . ■ V. Jewell, 130 Mass. 270 . . • (Lincoln v.) 128 Mass. 203 . • (Murray v.) 144 Mass. 195 . ■ (Northborough v.) 142 Mass. 551 . . 131 • V. Payea, 138 Mass. 61 . 586,801,1144 ■ (Prentiss v.) 132 Mass. 486 53, 637, 673, 734 ■ V. Remick, 143 Mass. 453 . . 383, 709 • (Shoe & Leather Bank v.) 142 Mass. 563 . . 130, 199, 204, 392, 478, 609 ■ (Stock u.) 136 Mass. 353 717 • V. Westborough, 140 Mass. 403 341, 592, 754, 939 . . 305 499, 500 . . 1098 217, 248, 1047 Woodbury (Welsh v.) 144 Mass. 542 . V. Woodbury, 141 Mass. 329 . Woodcock V. Worcester, 138 Mass. 268 Woodruff w. Wentworth, 133 Mass. 309 Woods u. Naumkeag Steam Cotton Co , 134 Mass. 357 . ■ (Simmons v.) 144 Mass. 385 603 1042 108 Woodsum (Odewald o.) 142 Mass. 512 . . Woodward ( Bristol Countj- Savings Bank v.) 137 Mass. 412 458 (Foster v.) 141 Mass. 160 . . 264, 459 V. Ham, 140 Mass. 154 ... 703, 864 V. Nims, 130 Mass. 70 ... . 147, 278 V. Sartwell, 129 Mass. 210 . 83, 84, 277, 444, 445, 447 V. Spurr, 138 Mass. 592 540 I'. Spurr, 141 Mass. 283 .. . 526, 541 Wooldredge (Pole v.) 135 Mass. 140 . . . 344 (Dole V.) 142 Mass. 161 287, 349, 368, 404, 428, 1059 Worcester {Barker v.) 139 Mass. 74 642, 1091, 1142 V. Barre, 136 Mass. 101 .. . 767, 938 Worcester (Barry r.) 143 Mass. 476 ... 624 (Commonwealth v.) 141 Mass. 58 . 924, 1128 (Daily v.) 131 Mass. 452 .... 1092 Dickinson v.) 138 Mass. 555 . 116, 161, 179, 1085, 1138, 1139, 1141 V. Great Barrington, 140 Mass. 243 770, 1136 (Grogan v.) 140 Mass. 227 ... . 1105 (Hoppin V.) 140 Mass. 222 ... . 655 (James v.) 141 Mass. 361 ... . 11 (Joyce V.) 140 Mass. 245 .... 655 (Mannville Co. v.) 138 Mass. 89 674, 1065 (Mitchell V.) 129 Mass. 525 . . 612, 1101 (Morse v.) 139 Mass. 389 .... 355 V. Northborough, 140 Mass. 397 384, 415, 775 (Olson r.) 142 Mass. 536 .... 1091 (Rice Machine Co. v.) 130 Mass. 575 829 (Woodcock V.) 138 Mass. 268 .. . 1098 Worcester & Nashua Railroad (Loring v.) 131 Mass. 469 833 Worcester County Commissioners (North- borough K.) 13? Mass. 263 1070, 1071 (Worcester Gas Light Co. v.) 138 Mass. 289 893 Worcester Gas Light Co. v. County Com- missioners, 138 Mass. 289 . . . 893 Worcester Mechanics' Savings Bank v. Thayer, 136 Mass. 459 ... . 685 Worden v. New Bedford, 131 Mass. 23 23, 973, 977, 983 Wormwood v. Waltham, 144 Mass. 184 . . 1102 Woronoco Savings Bank (Eastman v.) 136 Mass. 208 499 Worthen v. Cleaveland, 129 Mass. 570 441, 626 Worthington v. Klemra, 144 Mass. 167 . . 1124 (Newburyport v.) 132 Mass. 610 . . 769 Wright (Allen v.) 134 Mass. 347 .... 702 (Allen V.) 136 Mass. 193 83, 88, 703, 740, 1039 u. Andrews, 130 Mass. 149 . . 584, 588 u. Boston & Albany Railroad, 142 Mass. 296 725 V. Boston & Maine Railroad, 129 Mass. 440 721 (Commonwealth v.) 137 Mass. 250 644, 1139 (Commonwealth v.) 139 Mass. 382 . 739 V. Dressel, 140 Mass. 147 888, 1139, 1141 V. Herrick, 128 Mass. 240 ... . 23 (Hill w.) 129 Mass. 296 522 (McAvoy V.) 137 Mass. 207 409, 484, 728, 753, 993 V. Newton, 130 Mass. 552 . . 60, 1140 V. Potomskar Mills, 138 Mass. 328 . 950 (Rand !).) 129 Mass. 50 82 !>. Templeton, 132 Mass. 49 . . 1095, 1096 V. White, 136 Mass. 470 1013 i>. Wright, 139 Mass. 177 383, 419, 426, 636 Wunsch (Commonwealth v.) 129 Mass. 477 438 Wyeth V. Market Bank, 132 Mass. 697 . . 127 V Stone, 144 Mass. 441 .. . 16, 1139 Wyniaii (Devine v.) 131 Mass. 73 .... 148 V. Eastern Railroad, 128 Mass. 346 43, 832 (Shapteigh v.) 134 Mass. 118 .. . 716 1241 TABLE OF CASES. 1242 Yarrington ». Robinson, 141 Mass. 450 . . 1143 Yarter v. Flagg, 143 Mass. 280 497 Yeager Milling Co. v. Brown, 128 Mass. 171 404 Yeaton v. Boston & Lowell Railroad, 135 Mass. 418 662 Young V. Blaisdell, 138 Mass. 344 179, 210, 936 Young (Commonwealth v.) 185 Mass. 526 . 138, 1138 617, 618 687, 973 637, 778 492, 995, 996 V. Cook, 144 Mass. 38 ... . (Haley v.) 134 Mass. 364 . . (Wheeler v.) 143 Mass. 143 . Youngermaa (Bates v.) 142 Mass. 120 z. Zedlitz, Von (Jackson ti.) 136 Mass. 342 . . 1005 I ZoUeru. Morse, 130 Mass. 267 382 (Rau V.) 132 Mass. 164 320, 346, 362, 901 1 University Press : John Wilson & Son, Cambridge, w '-^"I'V^ 'f'^W^i