ments of money paid by the debtor, by way of preference, to a preëxisting
creditor, at several times after an urgent demand of payment by the latter, a
verdict for the defendant will not be set aside because the judge refused to
rule, as matter of law, that the debtor's failure to pay the note at or about the
time he was called on to do so, and his continued failure to pay it, constituted
insolvency, and were sufficient "reasonable cause," within the meaning of the
statute, to lead the creditor to believe him insolvent; or to rule that the plain-
tiffs must satisfy the jury that the defendant had reasonable cause to believe
that the debtor intended to prefer him. Kingman v. Tirrell, 97.
6. It is not a fraud upon creditors nor an act in violation of the insolvent laws
for an insolvent debtor to give new notes in exchange for notes dated before
the passage of St. 1855, c. 238, for the purpose of extinguishing his old debts
and thus entitling himself to hold his homestead; but in such case if the debtor
does not disclose his purpose and assigns a different reason for the exchange,
and the creditors accept the new notes without understanding that their rights
will thereby be impaired, the new notes will not, while in the hands of original
parties, be held to extinguish the old ones, but will be considered merely as
renewals of them, and therefore the debtor will have no right to a homestead
as against them. Tucker v. Drake, 145.
7. Evidence that an insolvent debtor, a few months before the making of a con-
veyance which is alleged to have been fraudulent, represented to certain of
his creditors that he should not be able to pay his debts to them at maturity,
is admissible in favor of his assignees, in an action brought by them to set
aside the conveyance. Marsh v. Hammond, 483.
8. Evidence that a person cannot write very well, and that his nephew, who had
been his confidential clerk for several years, was in the habit of writing letters
for him, is sufficient to authorize the introduction in evidence of letters appear-
ing to be on his business, and written in his name by such clerk, for the pur-
pose of proving his insolvency. Ib.
9. If an insolvent debtor has testified, in a writ of entry brought by his assignees
to set aside a conveyance of real estate made by him on the day before re-
moving with a stock of goods out of the Commonwealth, that the conveyance
was not made to defraud creditors, and that he had no such intent in remov-
ing with his goods from the Commonwealth, letters written by him or by his
authority shortly after reaching the place of his destination, and tending to
show that he had such fraudulent intent, are admissible in evidence for the
purpose of contradicting him. Ib.
10. If the tenant in such writ of entry has testified that after he was summoned
to appear as a witness before the court of insolvency, and before obeying the
summons, he requested and had a meeting with the insolvent debtor out of this
commonwealth, and there received from him a letter addressed to another
person, and that he did not know and had no belief whether it was sealed or
unsealed, or whether he saw or heard or knew the contents of it, and his ap
pearance and mode of answering are such as to make the weight and credi-
bility of his testimony, in the opinion of the presiding judge, a question for the
jury, and there is evidence tending to show that he delivered the letter to the
person to whom it was addressed, and its contents, if known by the tenant,
had a tendency to prove the alleged fraud on his part, the question whether or
not he knew them may be submitted to the jury. Ib.
11. Upon the issue whether a debtor who asked an extension from his creditors
at a particular time was then insolvent and had reasonable cause to believe
himself so, evidence is incompetent to show that persons engaged in the same
line of business at that time generally obtained an extension; that it was the
general understanding among the trade that asking for an extension at that
time was no sign of inability to pay debts; and that all persons in that line of
business either temporarily suspended payment or asked for an extension at
that time. Vennard v. McConnell, 555.
12. The rule of law by which the question is determined whether a debtor was
solvent or insolvent at a particular time is not affected or modified by any gen-
eral embarrassment of the operations of trade, arising from the existence of a
civil war, or by the fact that all persons in the same line of business were un-
able to pay their debts at maturity. lb.
13. If various issues have been submitted to a jury, on an appeal from the de-
cision of a judge of insolvency refusing to grant a certificate of discharge to
an insolvent debtor, and, upon one of them which was submitted under in-
structions to which no exceptions were taken, they have found a fact which
will deprive the debtor of his discharge, a new trial will not be granted even
if the instructions were erroneous concerning other issues, upon which they
also found adversely to the debtor. Ib.
See PRACTICE, 4; PROMISSORy Notes, 1.
1. If a policy of insurance on the life of a married man is made payable to his
wife, and she dies before him, leaving children, the administrator of her estate,
upon receiving the amount of the policy after the death of the husband, will
hold it, under the statutes of Massachusetts, if no other trustee is appointed, for
the benefit of the children; and the administrator of the husband's estate
has no interest therein. Swan v. Snow, 224.
2. In an action upon a policy of insurance on a theatre, which contains this
clause, in connection with the description of the property insured: "This
policy not to cover any loss or damage by fire which may originate in the
theatre proper," the burden of proof is on the plaintiff to show a loss not
originating in the theatre proper. Sohier v. Norwich Fire Ins. Co. 336.
8. In such case, if a brick wall of the building becomes so heated from without
as to set fire to the wood-work within the theatre, this is not a fire originating
in the theatre proper, within the meaning of the policy. Ib.
1. If it is provided in by-laws which are a part of a contract of insurance tha
"when any property shall be alienated, by sale or otherwise, the policy there
upon shall be void," and the insured, after mortgaging the property and as
signing the policy with the consent of the insurers, conveys the equity of
redemption without such consent, the policy thereupon becomes void. Law-
rence v Holyoke Ins. Co. 387.
5. After a decree of this court, under Sts. 1862, c. 181, and 1863, c. 249, ratify-
ing an assessment by a mutual insurance company upon its members who at
the time of the making thereof were liable to assessment, one whose policy
had terminated within two years prior to the making of the assessment cannot
object, in an action brought by the company to recover the amount assessed
upon him, that the absolute funds of the company had not been exhausted;
that he was not concluded by the order of the court relative to the assessment;
or that, if liable at all, it was for less than the amount assessed upon him.
Hamilton Mut. Ins. Co. v. Parker, 574.
See CONSTITUTIONAL LAW, 2.
1. A complaint alleging that the defendant was a common seller of intoxicating
liquors "on the third day of April in the year of our Lord eighteen hundred
and sixty-five, within six months last past," can only be supported by proof
that he was a common seller on said third day of April. Commonwealth v.
Traverse, 260.
2. A license granted under St. of U. S. of 1862, c. 119, does not authorize the
sale of intoxicating liquors in this commonwealth, in violation of the statutes
of this commonwealth. Commonwealth v. Keenan, 262.
3. If the defendant on the trial of an indictment against him for selling intoxi-
cating liquors in violation of the statutes of this commonwealth, puts in evi-
dence a license, under St. of U. S. of 1862, c. 119, authorizing him to sell
such liquors at retail, and granted before the act charged against him in the
indictment, and in force at that time, that fact may be taken into consideration
by the jury, in determining whether or not he is guilty. Ib.
See INDICTMENT, 3, 4; NUISANCE.
A judgment in an action for the conversion of a tree is not conclusive evidence
of title in a writ of entry to recover the premises on which the tree stood.
although accompanied by proof that the only question litigated in the former
suit was in regard to the title. Johnson v. Morse, 540.
See EVIDENCE, 13.
If a vessel has been built for the United States for the purpose of being used as
a floating light, under an agreement to construct and equip her according to
certain specifications annexed, ard to the satisfaction and approval of an agent
of the United States, and to deliver her in this commonwealth, for a gross sum
to be paid by the United States to the builder after her completion, and the
builder has completed the same, and received the contract price, and the title
to her has vested in the United States, subject to the lien, and possession has
been taken of her by the United States, and the spars and rigging been put
up, and the lanterns put on board and prepared for use, a lien upon her can-
not be enforced in the courts of this commonwealth upon proceedings after-
wards commenced, for timber which has been used in her construction. Briggs
v. Light-Boats, 157.
1 An action by a lessee against a lessor of a tenement to recover damages for
the breach of an agreement by the latter to keep the premises in good condi-
tion and repair, whereby water flowed into the tenement and compelled the
plaintiff to vacate it, is not defeated by proof of negligence on the part of the
lessee which contributed to the injury complained of, provided the defendant
also was guilty of negligence in failing to keep the premises in repair. Flynn
v. Trask, 550.
2. In such action, the defendant has no reason to complain of instructions that
"he was bound to do all that ordinary sagacity, prudence and foresight could
do to keep the premises in good repair and condition, and that if the injury
was owing to this want of repair and could have been prevented by such ordi-
nary sagacity, prudence and foresight, then he would be liable." lb.
If the owner of land for a valuable consideration orally licenses another to cut
off within a certain time the trees standing upon it, and afterwards executes
an absolute deed of the land to a third person, such deed, when made known
to the licensee, will operate as a revocation of the license, although the grantee
had knowledge of it. Drake v. Wells, 141.
See EXECUTORS AND ADMINISTRATORS, 1.
If a bond is given in a certain sum "mutually agreed upon as liquidated dam-
ages," with condition to pay off a mortgage debt within a certain time upon
land conveyed to the obligor, and to pay the interest thereon semi-annually
until the principal is paid, and to pay all taxes assessed on the premises and to
keep the buildings insured against fire to a certain amount, and the sum pro-
vided to be paid is referred to only in the early and formal part of the bond,
and is several times as great as the semi-annual instalments of interest, it is to
be treated as a penalty and not as liquidated damages. Fisk v. Gray, 132.
An action of contract cannot be maintained for the price of a horse sold on the
Lord's day, although the purchaser keeps him afterwards; but the remedy is
by an action of tort in the nature of trover. Ladd v. Rogers, 209.
MAGISTRATE.
See EVIDENCE, 10.
A divorce obtained in Illinois by a citizen thereof from his wife, for the cause of
desertion, upon notice to her by publication in a newspaper in the manner
prescribed by the statutes of that state, is valid, although she was then living
in Massachusetts under an agreement by which, after reciting their separatior,
he promised to pay her a certain weekly sum as long as she should remain
single, and although she had no actual notice of his proceedings for a divorce
and was not in Illinois during the pendency thereof; and it is not competent
for her, in a libel for divorce brought by her in this commonwealth, to offer
evidence that he obtained the decree of divorce there by fraud, and upon facts
which would not entitle him to a divorce here. Hood v. Hood, 196.
1. In an action upon a promissory note given by a married woman, while living
with her husband, the burden of proof is upon the plaintiff to show such facts
as will make her liable thereon. Tracy v. Keith, 214.
2. If land is devised to a person, to have and to hold the same to the sole, sepa-
rate and exclusive use of a married woman, her heirs and assigns forever, with
a provision that she may reside thereon if she chooses during her life, and in
case she should leave it then that the trustee may "lease or sell or make such
other disposition of the premises, or any part thereof, as she may in writing
authorize;" and the land is afterwards conveyed by such trustee to the woman
and her husband; a conveyance thereof by her and her husband will vest a
valid title in the grantee. South Scituate Savings Bank v. Ross, 442.
8. Land owned by a married woman in her own right might be conveyed, prior
to 1855, in this commonwealth, by a deed, in which she joined with her hus-
band in the granting part thereof, although her husband alone made the cove-
nants contained therein, and the last clause of which stated that she executed
the same "in relinquishment of dower." Perkins v. Richardson, 538.
4. The St. of 1862, c. 198, requiring married women who do business on their
separate account to file a certificate in order to secure their property from
their husband's creditors, applies to furniture used in a boarding-house kept
by a married woman. Chapman v. Briggs, 546.
See HUSBAND AND WIFE; TRUST, 2.
If, in an action to recover damages for a personal injury received in consequence
|