PAYMENT.

If the seller of a chattel accepts the promissory note of the buyer's agent, knowing him to be such agent, in payment, intending to receive it as payment and to give an exclusive credit to the agent, it operates as payment, and, upon its dishonor, he cannot recover the price of the chattel from the buyer. Perkins v. Cady, 318.

See MORTGAGE, 4; SALE, 2; TRUSTEE PROCESS, 6.

PLEADING.

1. A declaration containing counts in contract for failure to keep a govern. ment bond as agreed, and for money had and received, and in tort for conversion of the bond, for negligently keeping it so that the defendant lost it, and for disposing of it not in accordance with the agreement with the plaintiff, ended with an averment that the counts were for the same considera tion. Held, on demurrer, that under the Gen. Sts. c. 129, § 2, cl. 5, there was no misjoinder of counts. Jenkins v. Bacon, 373.

2. A declaration on a contract within the statute of frauds need not allege that the contract is in writing. Elliott v. Jenness, 29.

3. A declaration alleged that the defendant, in consideration of the purchase from him by the plaintiff of a lot of land for a certain sum, promised to grade certain streets; and that the defendant conveyed the land to the plaintiff by a deed, a copy of which was annexed, and the plaintiff paid the price; but that the defendant refused to perform his promise. The deed, a copy of which was annexed, purported to be made in consideration of said sum. Held, that a sufficient consideration was alleged for the defendant's promise. Ib.

4. A declaration alleging that the defendant sold a lot of land to the plaintiff and made and delivered to him an agreement signed by his agents in which they recited the purchase of the land by the plaintiff for a certain sum, and agreed that the defendant should "in all respects fulfil the conditions of sale;" and that the plaintiff tendered the price; but that the defendant refused to convey the land, is bad as not stating what the conditions of the sale were, or that the defendant agreed to do anything. Riley v. Farnsworth, 152.

5. Under a declaration on an account annexed, the items of which are for board furnished to the defendant's minor children, the plaintiff may show that the defendant expelled the children from his house under such circumstances as to render himself liable for board furnished them. Raymond v. Eldridge, 390.

5. A declaration in an action begun October 19, 1868, against the four obligors of a bond conditioned that two of the four should pay the amount which the plaintiff might recover in an action against the two within thirty days after final judgment therein, alleged that the plaintiffs recovered judgment in said action on July 25, 1868; that the judgment was in full force and wholly unsatisfied; and that the defendants owed the plaintiffs the amount

thereof. The answer was a general denial. At the trial the defendants contended that the declaration contained no allegation that final judgment hal been recovered, or that there had been any breach of the bond, or that the defendants owed the amount of the penalty of the bond. Held, that these objections could be taken only by demurrer. Huntress v. Burbank,

213.

1. In an action against a savings bank, brought in the name of an administra tor, the declaration alleged a deposit of a certain sum by the plaintiff's intestate, her receipt from the defendants of a book certifying the deposit, their promise to pay the amount to her, her assignment of the book and fund to her daughter, for whose benefit the suit was brought, and that the defendants owed the plaintiff, for the daughter's benefit, said sum and interest The answer denied the allegations of the declaration, and that the defendants owed the plaintiff for the benefit of the daughter said sum, or any sum. Held, that under these pleadings it was not open to the defendants to contend that they had assented to the assignment, and that therefore the action should have been brought in the daughter's own name. Foss ▼. Lowell Five Cents Savings Bank, 285.

See AUTREFOIS CONVICT, 2; DEmurrer ; EquiTY.

POLICE COURT.

See MUNICIPAL COURT.

POLICE OFFICER.

See CONSTABLE.

POND.

Under a statute authorizing an aqueduct corporation to draw water from a great pond, and providing for the payment of damages suffered by any one by the taking and conducting the water, a riparian proprietor cannot recover damages for the injury occasioned by the taking of the water rendering his dwelling-house uncomfortable and unfit for the purposes for which it was designed. Fay v. Salem & Danvers Aqueduct Co. 27.

POOR DEBTOR.

1. A notice, under the Gen. Sts. c. 124, § 13, by one arrested on execution, of his desire to take the poor debtor's oath at "the Police Court in L.,” is sufficient, if there is a place in L. designated and well known for the hold ing the Police Court of L. Danforth v. Knowlton, 76.

2. The recitals in a recognizance, under the Gen. Sts. c. 124, § 10, are not avidence as to matters not occurring in the presence of the magistrate before whom the recognizance was taken. Learnard v. Bailey, 160.

3. A person arrested on mesne process entered into a recognizance under the Gen. Sts. c. 124, § 10, and was examined by a magistrate, but afterwards made default. Held, in an action against the surety on the recognizance, (1) that he might show that the writ on which his principal was arrested did

not authorize the arrest; (2) that if the writ did not authorize the arrest the recognizance was void; and (3) that the writ could not be amended under the Gen. Sts. c. 129, § 42. Learnard v. Bailey, 160.

1. The examination of a poor debtor was fixed for three o'clock at a magistrate's office; a few minutes before four the magistrate postponed the examination till half past four, and left the office. At forty-one minutes past four the creditor left, and at a quarter of five the magistrate returned and waited with the debtor till half past £ve. Held, that there was no breach by the debtor of a recognizance given under the Gen. Sts. c. 124, § 10, conditioned to deliver himself up for exainination before a magistrate, and ap Fear at the time and place fixed, and from time to time until the examination was concluded, making no default at any time fixed for his examination. Carleton v. Wakefield, 481.

5. A magistrate on his examination of a poor debtor announced orally his de. cision not to administer the oath, and made out the certificate accordingly, neither the officer nor the execution being present; the magistrate then left and the debtor also; the magistrate afterwards appended the certificate to the execution. Held, that there was no breach by the debtor of a recognizance, given under the Gen. Sts. c. 124, § 10, conditioned to deliver himself up for examination, not depart without leave of the magistrate, and abide the final order of the magistrate thereon. Goodall v. Myrick, 484. 6. A judgment debtor arrested on execution and discharged under the Gen. Sts. c. 124, § 48, on account of the plaintiff's failure to appear at the examination, if arrested on execution issued in a suit brought on the same judgment, is entitled to be discharged on habeas corpus. Davis's Case, 288.

PRACTICE.

see ATTACHMENT; Demurrer; EXCEPTIONS; EXECUTION; INSURANCE, 5, NEW TRIAL; OPEN AND CLOSE; POOR DEBTOR; REMOVAL OF SUIT; TRUSTEE PROCESS.

PRESCRIPTION.

See ADVERSE POSSESSION.

PRESUMPTION.

On the trial, upon appeal, of a complaint for unlawfully keeping intoxicating liquor on a certain day with intent to sell, there was evidence of such keeping at several times, but the Commonwealth relied upon the offence committed upon the day charged; the judge ruled that time was of the essence of the offence, and that the presumption was that the offence was the same as that for which the defendant was convicted in the court below. There was no evidence that the offence was not the same. Held, that although time was not of the essence of the offence, the presumption was as stated; and that therefore the defendant had no ground of exception. Commonwealth v. Carr, 423.

Bee BETTERMENT, 2; Indictment, 1; MORTGAGE, 4; PROMISSORY NOTE, 3.

PRINCIPAL AND AGENT.

1. The superintendent of works of a company incorporated to manufacture and sell glass bought glass, as the company's agent, to keep up their stock while their works were being repaired. The purchase was known and sanctioned by all the officers and stockholders but one, and that one knew it soon after it was made, and no action was ever had repudiating it. Held, that in a suit against the company by the seller of the glass these facts would warrant a finding that the superintendent was authorized by the company to purchase the glass. Lyndeborough Giass Co. v. Massachusetts Glass Co. 315.

2. In an action against a bailee of goods for not delivering them, to which the defence is that he sent them to the plaintiff's wife, the fact that the plaintiff calls his wife to testify that she never asked that they might be sent to her, does not authorize the inference that she was the plaintiff's agent. Jenkins v. Bacon, 373.

?. The derendant promised the plaintiffs to sell their stock in a company at the same rate at which he sold his own; he then agreed with third persons to sell them stock of the company at a certain price; and employed a broker to procure the stock for him; the broker applied to the plaintiffs and told them that the purchasers would pay only a certain price, which was, in fact, smaller than the purchasers had agreed to pay the defendant. Held, that the plaintiffs' ignorance that the broker was employed by the defendant would not affect the defendant's liability to them. Cutter v. Demmon, 474. Se ADMISSION, 1; ARBITRAMENT AND AWARD; CARRIER, 7; EXCEPTIONS, 4; HUSBAND AND WIFE, 2; INSURANCE, 1; PAYMENT; REMOVAL OF SUIT.

PRINCIPAL AND SURETY.

See POOR DEBtor, 3.

PROBABLE CAUSE.

See FALSE IMPRISONMENT.

PROMISSORY NOTE.

1. A promissory note containing a provision that it may be paid at any time before maturity, and that interest shall be deducted till due, is not negotiable. Way v. Smith, 523.

2. A promissory note, purporting to be made by the inhabitants of School District No. 5 in a town, and signed " A. B., Treasurer of District No. 5," is the promise of the district. Whitney v. Stow, 368.

8. In an action on a promissory note by one who took it from the payees before maturity, to which the defence is that the note was obtained by fraud, and that the plaintiff took with notice, it is no ground of exception that the judge refused to rule that it was a presumption of law that one who pro

cures a note by fraud will place it in the hands of another to sue upon it, if he gave proper rulings as to the burden of proof; and he will be presumed to have given such rulings, if the contrary does not appear from the bill of exceptions. Smith v. Livingston, 342.

4. One who before maturity has taken from the payees a promissory note which they obtained by fraud, can recover from the maker, although he took the note under suspicious circumstances, if he in fact took it for value, in good faith and without knowledge of any infirmity. Ib.

5. A father, by arrangement with his son, made two promissory notes, amounting to nearly the whole value of his estate, payable to the son or order on demand, and gave them to the son, taking in exchange eleven promissory notes made by the son of equal amount in the aggregate, payable to the father or order, three months after date. These eleven he indorsed, addressed severally to different relatives, and deposited with a daughter in a sealed package, with written instructions that it was to be opened a year after his death, if he should not reclaim it in his lifetime. He died intertate, without reclaiming it; and it was opened a year after his death, and the notes distributed. The son indorsed the two notes to a third person. Held, that there was no consideration for the two notes; that the instructions to the daughter could not be enforced as a declaration of trust; that the indorsement and delivery of the eleven notes to the daughter was good neither as a gift inter vivos or causa mortis; and that the holders of the notes should be enjoined from enforcing them against the intestate's estate. Carr v. Silloway, 24.

See CHECK; DECEIT; INSOLVENT Debtor; Payment; SCHOOL DISTRICT, 1; TRUSTEE PROCESS, 1-3.

QUO WARRANTO.

See TOWN, 2.

RAILROAD.

A statute authorized a railroad company to take a parcel of land after thirty days' notice, and provided that all general laws relating to the location of raj'oads should govern the taking. Held, that the location over the land might be filed before the expiration of the thirty days. Eastern Railroad Co. v. Boston & Maine Railroad, 125.

Bee CARRIER, 4, 5; CORPORATION, 2; EMINENT DOMAIN; NEGLIGENCE, 4; RECEIVER; REMOVAL OF SUIT; STREET RAILWAY.

REASONABLE TIME.

See EXECUTION, 2; MANDAMUS, 1.

RECEIPT.

A. B. shipped as seaman on board a vessel, at $25 a month. On discharging him, the owners paid him, at their own election, in gold, and rendered him an account in which they charged him with the premium on gold over VOL. XV.

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