ing on the first lot. Held, that there was no easement of light and air for these windows over the first lot. Randall v. Sanderson, 114.

See ADVERSE POSSESSION.

ELECTION.

See MANDAMUS.

EMBEZZLEMENT.

See EVIDENCE, 1; INDICTMENT, 2

EMINENT DOMA"

railroad

purposes

land oo

A statute authorized a railroad company to cupied by another railroad company, and provided that all general laws relating to the taking of land for railroad purposes should govern the proceedings. Held, that the statute was constitutional, although the company whose land was taken was thereby deprived of part of its business. Eastern Railroad Co. v. Boston & Maine Railroad, 125.

See CORPORATION, 2; POND.

ENGINEER OF FIRE DEPARTMENT.

See FIRE COMPANY.

EQUITY.

A bill in equity by A. and his wife against B. and his wife alleged that B. promised to convey a lot of land to A.'s wife free from incumbrances; but that he fraudulently gave her a deed of only part thereof; that he fraudulently induced the plaintiffs to give his wife a mortgage on the land conveyed; that also, A. owing B. a certain amount, B. induced the plaintiffs to give his wife a promissory note for more than was due; that he entered in his wife's name to foreclose the mortgage; that a suit was brought on the note in the name of an indorsee, but for the benefit of B.; that judgment was recovered in this suit against the plaintiffs; and that the equity of redemption of A.'s wife in the land was sold on execution, and was bought by B., who had the deed made to his wife. There were other frauds of B. alleged; but the prayer was for an account, and that upon payment of the amount found due the defendants might be decreed to execute to A.'s wife a deed of the land free from incumbrances, to discharge the mortgage, and to cancel the note and judgment. There was no allegation of any fraud on the part of B.'s wife. Held, on demurrer, (1) that the husbands and wives were all properly joined; (2) that the bill was not multifarious; (3) that no offer of payment of what should be found due was necessary; and (4) that the plaintiffs had no adequate remedy at law. Nelson v. Ferdinand, 300.

See COSTS; Deed, 2, 3; Demurrer; Evidence, 14; Injunction; InSURANCE, 5; MORTGAGE, 1, 5; NOTICE; PARTNERSHIP, 3; PROMISSORY NOTE, 5; SPECIFIC PERFORMANCE; STREET RAILWAY, 3; Trust TRUSTEE PROCESS, 1.

1

ESTOPPEL.

1. Conduct by one of the parties to a transaction will not amount to an estoppel if it was not accompanied by a design that the other party should act upon it, and has not been followed by any change in the situation of that party. Carroll v. Manchester & Lawrence Railroad Co. 1.

2. An officer, by order of A., attached goods on a writ in favor of A.; the owner of the goods sued the officer for taking them; A. assumed the defence of the suit, but verdict and judgment were rendered against the officer. Held, in an action by the officer against A. to recover the amount of the judgment, that A. was not estopped to show that the verdict against the officer was rendered on account of his illegal conduct subsequent to the attachment, and on account of his proceedings under other writs than that of A. Boynton v. Morrill, 4.

See SPECIFIC PERFORMANCE, 1.

EVIDENCE.

1. On an indictment charging the embezzlement of "promissory notes, payable to the bearer on demand, current as money, of the amount and of the value of sixty-five dollars, a more particular description of which is to the jurors unknown," the evidence was that the notes were of the amount and value of $70, and were known so to be by the grand jury. Held, no variance. Commonwealth v. Hussey, 432.

2. On the trial of a complaint for unlawfully keeping intoxicating liquor with intent to sell, a witness was asked "to state, if he knew," that barrels found in the defendant's shop" were usually called by any particular name, what that name was he called them," and he answered, against the defendant's objection, that he called them whiskey barrels. Held, that this answer might be interpreted as meaning that they were usually called whiskey barrels, and that an exception would not lie to the admission of the evidence, unless the bill of exceptions showed that such was not its meaning. Commonwealth v. Carr, 423.

3. On an indictment for cruelly overdriving a horse, evidence that the defendant's parent formerly requested the owner of the horse not to let horses to the defendant, is inadmissible. Commonwealth v. Wood, 408.

On an indictment for cruelly overdriving a horse, a witness testified that she had seen the defendant driving, and he was not then overdriving; on cross-examination, she denied that she had said, in conversation with J. S., that the defendant was guilty; on reëxamination, she was inquired of as to this conversation. Held, that evidence that she had told J. S. that the defendant was guilty, was admissible. Ib.

5. On an indictment for an indecent assault upon A. B., A. B. having testified that the defendant took indecent liberties with her person, on a day when he took her to drive, and upon cross-examination, that on a subsequent day, she did not tell the defendant that she would kiss him if he would take her to drive, the defendant may show that she did so tell him. Commonwealth v. Bean, 438.

6. On an indictment for an assault, the person assaulted testified that he had a difficulty and a fight with the defendant some three weeks before the assault alleged. Held, that the refusal of the judge to allow the defendant, on cross-examination, to inquire into the grounds of this difficulty and circumstances of this fight was not a ground of exception. Commonwealth v. Silk,

431.

1. In an action for carnally knowing the plaintiff by force and giving her a venereal disease, evidence of her statement to the physician who was treating her for the disease, that the defendant had connection with her three months before, is inadmissible. Morrissey v. Ingham, 63.

8. In an action for carnally knowing the plaintiff by force and giving her a venereal disease, the plaintiff introduced evidence tending to show that the defendant's wife had such a disease. Held, that the defendant might ask a physician who was a witness and who had practised more or less in the defendant's family, whether he ever saw any appearance of such disease in his family. Ib.

9. In an action for an assault, the defendant's wife, who was a witness on his behalf, was asked on cross-examination if she gave a present to a magistrate about the time the plaintiff was trying to obtain a warrant from the magistrate against the defendant for the assault. There was no evidence of any attempt to procure a warrant, and the defendant conceded that the witness had a strong bias in his favor. Held, that the exclusion of the question put was within the discretion of the judge. Ib.

10. In an action for carnally knowing the plaintiff by force and giving her a venereal disease, evidence that some months before the alleged assault the defendant slept one night in a house of ill-fame may properly be excluded as immaterial. Ib.

11. The facts that a traveller bought a ticket for his passage by a steamboat, and that he was not asked for the ticket during the passage, warrant a finding that he knew he was to give it up before leaving the boat. Standish v. Narragansett Steamship Co. 512.

12. In an action for the conversion of the plaintiff's goods sold and delivered by him to J. S., and by J. S. to the defendant, in which the plaintiff contends that the delivery to J. S. was conditional on payment, and that J. S. did not pay, evidence that J. S. was at the time deeply insolvent is immaterial, if offered, not to show fraud on the part of J. S., but to repel any inference, from the fact of resale, that J. S. understood the delivery to be absolute, if such fact is not used to raise that inference. Upton v. Sturbridge Cotton Mills, 446.

13. In an action for procuring shares of stock from the plaintiffs at a certain price and selling them to third persons at a higher price, contrary to an agreement with the plaintiffs, evidence that the defendant procured shares of the same stock from other persons at the same price as he paid to the plaintiffs is inadmissible. Cutter v. Demmon, 474.

14. Oral evidence that an instrument purporting to be an agreement between husband and wife, was signed by both with the understanding that they

were not legally bound thereby, is admissible in equity to show that the instrument should not be allowed any effect. Earle v. Rice, 17.

15. In an action for the price of the right to use an oven for which the plaintiff held letters patent and which he had built for the defendants, the defence was that the plaintiff agreed that if the oven which he built was not of a certain capacity, the defendants need pay nothing for the right; and that it was not of that capacity; and the case was submitted to the jury upon the issues raised by this defence. Held, that evidence that others of the plaintiff's patented ovens of the same size and construction were of said capacity was inadmissible. Vale v. Butler, 55.

16. In a writ of entry by a woman to recover land from one to whom she and her husband have given a deed thereof, on the ground of her husband's insanity, the order of a judge of probate under the St. of 1862, c. 223, § 3, committing the husband to a lunatic hospital, is not admissible to prove his insanity. Leggate v. Clark, 308.

17. Upon the trial of issues whether a will disinheriting the sisters and heirs of the testatrix was made when she was of unsound mind or under undue influence, the executor introduced evidence that before the time of making her will she had said that her sisters were ashamed of her and had tried to put and keep her down, and that she was bitter against them. The sisters then offered evidence that they had allowed their property to be used for her support. Held, that the refusal of the judge to admit this evidence furnished no ground of exception in the absence of evidence that she knew that her sisters allowed their property to be so used. Mansfield v. Frobisher, 811.

18. In a proceeding to assess damages for the taking of land by a ferry company, the company cannot introduce evidence of the amount for which an owner of land in the neighborhood has offered to sell his land. met Co. v. Grueby, 543.

Winnisim

See ACCOMPLICE; ADMISSION; ATTORNEY; BREAKING AND ENTERING; CARRIER, 6; CHECK; CONFESSION; DECEIT; DIVORCE, 2; ESTOPPEL, 2; EXCEPTIONS, 4, 5; INDICTMENT, 1; INSURANCE, 3; Judgment, 2; LandLORD AND TENANT, 1; LEASE, 1; LIMITATIONS, STATUTE of, 2; MONEY HAD AND RECEIVED; MortgaGE, 1, 2, 4; NEGLIGENCE, 1, 4; PartnerSHIP, 1, 5; PLEADING, 5; POOR DEBTOR, 2; PRESUMPTION; PROMISsory Note, 3; Receipt; Report; Sale, 6, 7; SCHOOL District, 1; USAGE; WITNESS; WRIT.

EXCEPTIONS.

1. In an action for carnally knowing the plaintiff by force and giving her a venereal disease, a statement by the judge to the jury that the charge was said to be one easily made, but difficult to be disproved, is not open to exception as a charge in respect to matters of fact within the Gen. Sts. . 115, § 5. Morrissey v. Ingham, 63.

1. The refusal of the Superior Court to continue a case in order to allow an officer to amend his return is not subject to exception. Pickering v. Reynolds,

83.

3. In an action by a mortgagee of goods against an officer who attached them upon a writ against the mortgagor, an exception to the refusal of the judge o rule that the demand made by the mortgagee, under the Gen. Sts. c. 123, §§ 62, 63, was for an amount greater than was due, will not be sustained, if the fact of such excess was not found at the trial, and is not to be ascertained from the bill of exceptions except by computation. Folsom v. Clemence, 273.

1. A decision by a judge at a trial that there is such evidence that A. B. was an agent of one of the parties, as to warrant the submission to the jury of writings of A. B. purporting to act as such agent, if open to exception at all, is so only when the bill of exceptions sets forth all the evidence upon which the decision was made. McGlynn v. Brock, 219.

5. A bill of exceptions, after setting forth certain evidence, stated that “upon all the evidence "a party asked for certain rulings, which were refused. Held, that it must be assumed that all the material evidence bearing upon the question raised was set forth. Foster v. Ropes, 10.

See DECEIT; Evidence, 2; Negligence, 7; PROMISSORY Note, 3; Sale, 5.

EXECUTION.

1. A levy on land is void, if the officer's return to the execution shows that he set off an undivided part of the land, and states no reason why the land could not be divided without damage. Pickering v. Reynolds, 83.

2. The omission by an officer or creditor for more than thirty days to proceed with the levy of an execution at any stage between the commencement and the completion of the levy is, in the absence of explanatory circumstances, an unreasonable delay and avoids the levy. Haskell v. Varina, 84.

See JUDGMENT, 2.

EXECUTOR AND ADMINISTRATOR.

If there is property of a testator not devised or bequeathed, his heir or next of kin may appeal from the allowance of the executor's account. Haynes, 346.

Smith T.

See ASSIGNMENT, 2; COSTS; LIMITATIONS, STATUTE OF, 1; MORTGAGE, 2, 4; PLEADING, 7; WILL, 2.

FALSE IMPRISONMENT.

1. In an action for false imprisonment the judge instructed the jury that probable cause was a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious and prudent man in entertaining an honest belief of guilt; that mere belief occasioned by negligence or want of proper investigation or reflection would be no justification; that although there was not probable cause, the defendant would not be liable unless he acted maliciously; but that an act done wrongfully and without probable cause in a wanton disregard of the rights of another was malicious. Held, that the defendant had no ground of exception. Mitchell v. Wall, 492.