In a lease for twenty years of land on which the lessee covenants to erect per
manent buildings, and the contract for which was negotiated after the pas
sage of the St. of 1866, c. 174, his covenant to pay "all taxes and assess-
ments, whether in the nature of taxes now in being or not, which may be
payable or assessed in respect of the premises, or any part thereof, during
said term," binds him to pay the whole amount of an assessment on the
premises, under that statute, for a part of the expense of altering a street on
which they abut, proportional to the benefit received by them from the alter-
ation. Codman v. Johnson, 491.
See FORCIBLE ENTRY AND DETAINER; RAILROAD, 2; WATERWORKS.
1. Distinct larcenies may be presented in different counts of one indictment;
and whether the Commonwealth shall elect between them is within the dis-
cretion of the judge presiding at the trial. Commonwealth v. Sûllivan, 552.
2. The stealing by one taking of several articles belonging to different persons
may be indicted either as one crime or as several crimes. Ib.
8. Under the Gen. Sts. c. 172, § 12, an indictment for larceny may allege the
property in the stolen goods to have been in a consignee to whom they were
in course of transportation by a carrier when they were stolen, whether the
carrier was designated by him or not. Ib.
4. The felonious taking of goods from the owners' shop by a clerk and packer
in their employ, who had keys by means of which, at the time in question, he
entered the shop after it was closed, but who was not a salesman, although
the owners had occasionally allowed him to take and sell goods for them, is
larceny and not embezzlement. Commonwealth v. Davis, 548.
See CORPORATION, 3; LANDLORD AND TENANT; PLEADING, 2.
Bee CARRIER, 4; EXECUTOR AND ADMINISTRATtor, 2; Mortgage, 3, 4
LIFE INSURANCE.
See INSURANCE, I.
LIMITATIONS, STATUTE OF.
See EXECUTOR AND ADMINISTRATOR, 2; PARTNERSHIP, &
LIS PENDENS.
See TRUSTEE PROCESS, 3.
MANUFACTURING CORPORATION.
See FISHERY; PARTNERSHIP, 3.
MARINE INSURANCE.
See INSURANCE, II.
MARRIED WOMAN.
See HUSBAND AND WIFE.
See LARCENT, 4; Officer; Railroad, 3; Seduction; Town.
MERGER.
See JUDGMENT, 3, 4.
See BOND, 1; REPLEVIN; SPECIFIC PERFORMANCE, 3; TRUST AND Trus
TEE, 2; WAREHOUSEMAN.
See INSURANCE, 8; JUDGMENT, 1, 2.
MONEY HAD AND RECEIVED.
See FRAUDULENT REPRESENTATIONS, 1, 2.
MORTGAGE.
I. Of Real Estate.
1. A mortgagee in possession will be allowed, as compensation for managing
the property, five per cent. on the rents collected, but not on the amount ex-
pended in repairs and improvements also, unless his services are worth actu-
ally more than the five per cent. on the rents. Gerrish v. Black, 400.
2. On a bill in equity to redeem lands from a mortgage, it appeared that the
defendant, who had entered to foreclose, lived in another state, and appointed
an agent to manage the property; and there was no evidence of negligence
in the appointment of the agent, or of fraud on the part of the mortgagee.
Held, that, without other evidence of negligence than the testimony of the
mortgagor's witnesses, as experts, that a higher rent could have been ob-
tained, the mortgagee should not be charged with a greater amount than he
received as rent. lb.
See EXECUTOR AND ADMINISTRATOR, 3; USURY; VENDOR AND PUR-
CHASER, 4.
II. Of Personal Property.
3. A., having given a mortgage of goods to B. which provided that if A. should
attempt to sell them B. might take immediate possession, made, and deliv-
ered simultaneously, three mortgages of them, to C., D. and E. severally,
each containing a clause that "this mortgage is of the same date, given at
the same time, and to be recorded with" the two others, "all of which are
alike in time, and neither is to have precedence of the other, but to be alike
security to each," and each expressed to be subject to B.'s mortgage. Held,
1. that C., D. and E. took title under these mortgages as tenants in common,
and might join in one action for a conversion of the goods; 2. that the title
which they took was in the right of A. to redeem the goods from B.'s mort-
gage, and Lence they were estopped by the Gen. Sts. c. 151, § 1, to contest
its validity on the ground of an omission to record it; and 3. that the exe-
cution of their mortgages gave B. a right to take possession of the goods,
and to maintain possession against them in the absence of any payment or
tender of the amount due on his mortgage. Howard v. Chase, 249.
4. A mortgagee of personal property, who has proved his debt against the es
tate of the mortgagor in bankruptcy, without disclosing his security, is not
thereby estopped to claim the property against a subsequent mortgagee who
has not proved his debt. Cook v. Farrington, 212.
MUNICIPAL COURT OF THE CITY OF BOSTON.
See WRIT of Error.
See ACTION, 3-5; EVIDENCE, 2; SALE, 6.
1. To sustain an action for an injury received by the plaintiff through the de-
fendant's negligence, it is not necessary for the plaintiff to prove due care on
his part by directly affirmative evidence, but the inference of such care may
be drawn from the absence of all appearance of fault, either positive or neg
ative, on his part, in the circumstances under which the injury was received
Mayo v. Boston & Maine Railroad, 137.
2. In an action against a hackman for negligently driving horses over a child
four years and seven months old and of the average ability and intelligence
of children of the age of five years attending the public schools, who was
crossing a street on his way home from school at the time of the accidens,
the question whether the child's parents were negligent in permitting hita to
return from school alone, and in so doing to cross the street at the time when
and place where he was injured, is for the jury. Lynch v. Smith, 52.
3. On the issue whether a child four years and seven months old, and “
as in-
telligent as the average of children in his school five years of age, but rather
small for that age," who in crossing a street on his way home from school
suffered an injury by the negligence of another traveller, was using due care
when he was injured, the opinion of his school-teacher as to his capacity to
exercise such care is inadmissible in evidence. Ib.
4. If the parents of a child were not negligent in permitting him to cross a
street alone, and while crossing he was injured by the negligence of another
traveller, it is sufficient to entitle him to recover for the injury, if he was
using that degree of care of which he was capable, though a less degree than
would be appropriate for an adult to use under like circumstances; and,
even if his parents were negligent in permitting him to cross the street alone,
their negligence was not contributory, and he may recover, if in crossing he
did no act which prudence would have forbidden and omitted no act which
prudence would have dictated, whatever was his physical or intellectual
capacity. Ib.
5. A. and his minor son B. were in the vestibule of their house preparing to
set off fireworks while a procession was passing, when C. fired a rocket, from
his house opposite, which struck and injured B. Many rockets and other
fireworks were set off by other persons while the procession was passing the
house. Held, in an action against C. for the injury as caused by his negli-
gence, that the question whether A. and B. were careless in being in the
vestibule was for the jury. Held, also, that evidence offered by C., that he
and A. were members of a club, which got up the procession and published
notices calling on citizens to decorate and illuminate their houses along its
route, but not mentioning fireworks; that they both decorated and illumi-
nated their houses, in aid of the object of the procession and in pursuance of
the call; that C. fired the rocket as a part of his illumination; and that no
one had license to set off fireworks on the occasion; was immaterial. Fisk
v. Wait, 71.
See ACTION; CARRIER, 5; EVIDENCE, 2; JUDGMENT, 6; MORTGAGE, 2;
OFFICER; RAILROAD, 4-8; SALE, 6; Town; WAY, 14–19.
See CARRIER, 5; CONTRACT, 6; DISSEISIN; JUDGMENT, 5; (FFICER;
POOR DEBTOR, 2; PROMISSORY NOTE, 1; REVIEW, 1; USURY; Way,
16, 18.
An officer, who has attached a horse and placed it in a suitable stable and
made the stabler keeper, is liable for the neglect of the stabler to keep the
Lorse with ordinary care; but if neither he himself, nor any one for whose
care of the horse he is responsible, knows, or is negligent in not knowing
that the horse has peculiar tricks or habits, he is not liable for an omission
of extraordinary care to guard the horse against injury by reason of them.
Parrott v. Dearborn, 104.
Sec CONSTABLE; EVIDENCE, 3; EXCEPTIONS, 3; REPLEVIN.
See ACTION, 1; Waterworks.
PARENT AND CHILD.
See NEGLIGENCE, 2, 4, 5; SEDUCTION.
PARTIES TO ACTIONS.
See PLEADING, I.
PARTIES TO BILL IN EQUITY.
See CORPORATION, 3; EQUITY.
PARTIES TO CONTRACT.
See CONTRACT, II.
1. Upon a bill in equity between partners to wind up the partnership, one of
them who neglects or refuses to account fully for business of the firm, done
by himself in a foreign jurisdiction, cannot, as a penalty, be denied his rea-
sonable expenses of doing it, or sums otherwise owing to him from the firm,
or be charged with interest with annual rests on actual or estimated bal-
ances in his hands; but in estimating the amount, expenses and profits of
such business, and computing interest on such balances, if any interest
thereon is chargeable, care should be taken, by making presumptions in
favor of his copartners against him, to guard them from any injurious con-
sequences of his concealment of facts. Harvey v. Varney, 436.
2. An agreement to share profits may, but does not necessarily, imply a joint
interest in property held or used for the purposes of the business from which
the profits are to arise. Meserve v. Andrews, 360.
8. In order to procure credit for a manufacturing corporation, its stockholders
signed and gave to a bank a writing in which, after reciting that the stock
had "all been recently purchased, and is now owned, by the subscribers,
who desire and intend to continue the corporate organization, but not for
the purpose of exempting themselves from their individual liability for the
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