of the neglect of the defendants' servant, there is any evidence tending to
show that the person whose negligence is complained of was not under the con-
trol of the defendant, but was employed by one who had entered into an entire
contract with the defendant to do certain work for a stipulated sum, so that
the legal relation of master and servant did not exist between them, this court
will not, upon a report of the case, set aside a verdict for the defendant, al-
though the weight of the evidence may appear to have been in favor of the
plaintiff. Forsyth v. Hooper, 419.

See NEGLIGENCE.

MECHANIC'S LIEN.

1. If labor and materials have been furnished and used in the erection of a
building, under an entire contract, with no stipulation for any separate price
for either, and there is no mechanic's lien for the whole, there can be none for
any part. If extra labor, however, has been performed, a lien for it may be
enforced. Mulrey v. Barrow, 152.

2. A lien may be enforced for labor performed in the erection of a house under
the employment of one who has agreed with the owner of land to erect the
house thereon, and to pay and discharge all claims for labor and materials
furnished and used in the erection thereof, so that there shall be no liens upon
the premises. Ib.

B. If labor and materials have been furnished and used in the erection of a
building, and a payment has been made on general account, without discrimi
nation as to whether the same should be applied towards the price of the labor
or the price of the materials, so that it is impossible to determine how much
remains due for the labor or for the materials separately, and there is no me-
chanic's lien for the whole, there can be none for any part. Driscoll v. Hill,

154.

4. No mechanic's lien exists for labor performed by the owners of a planing-mill
in sawing and planing lumber in their mill, with no agreement between ther
and their employer as to the use to which the lumber shall be put; although
it is in fact afterwards used in a building which he is erecting for another per-
son under a contract. Bennett v. Shackford, 444.

MILK.

A certificate of the result of an analysis of milk, by a sworn inspector appointed
under St. 1864, c. 122, is admissible in evidence in a criminal prosecution un-
der that statute, provided he also testifies at the trial to the same facts which
are stated therein; and in such case the admission of the certificate before he
testifies furnishes no ground for a new trial, after a verdict of guilty. Com-
monwealth v. Waite, 264.

See CONSTITUTIONAL LAW, 4.

MORTGAGE.

1. If land which is subject to a mortgage is afterwards sold with full covenants
of warranty in two different lots to different purchasers at different times, and

the mortgagee afterwards enters upon both of these lots for the purpose of fore-
closure, and the foreclosure becomes absolute as to the lot last sold, the owner
of the lot sold first, upon a bill seasonably brought, may redeem upon paying
the balance due upon the mortgage debt after deducting the full value of the
other lot, with the buildings thereon; and it is immaterial that the buildings
were erected after he had acquired his title. George v. Wood, 41.

2. In such case the balance due at the time when the foreclosure of the lot last
sold became absolute should be ascertained, and interest computed on the
same thereafter. Ib.

3. The presumption of payment of a mortgage debt in favor of a mortgagor, who
has been in uninterrupted possession of the mortgaged premises for twenty
years, is not conclusive; but parol evidence, if relied upon to control it, should
clearly show some positive act of unequivocal recognition of the debt within.
that time. Cheever v. Perley, 584.

4. In a suit to foreclose a mortgage which the wife of the mortgagor has signed
for the purpose of releasing dower, it is not necessary to join her as a defend-
ant, in order to defeat her inchoate right of dower in the equity of redemp-
tion. Pitts v. Aldrich, 39.

5. If mortgaged personal property is delivered to and kept by an agent of the
mortgagee, this is equivalent to a delivery to and possession by the mortgagee
himself. McPartland v. Reed, 231.

NEGLIGENCE.

One who is employed by a dealer in lumber to deliver lumber upon an unfin-
ished bridge to sub-contractors who have undertaken to build the wooden por-
tion thereof may recover damages against the contractors who have undertaken
to build the entire superstructure, for an injury sustained by him while so de-
livering lumber, through a defect in the iron-work of that portion of the bridge
which has been completed. Curley v. Harris, 112.

See LEASE, 1; Master and Servant.

NUISANCE.

Keeping and maintaining a tenement used for the illegal keeping of intoxicating
liquors may be proved by evidence of repeated illegal sales in the tenement,
while it was fitted up as a bar-room. Commonwealth v. Greenen, 241.

See BOARD OF HEALTH.

OFFICER.

If an officer in serving a warrant for larceny takes from the defendant the goods
alleged to have been stolen, and the defendant is discharged upon the com-
plaint, it is the duty of the officer to return the goods; and if the person ar-
rested owns the same and demands their return, and the officer refuses to give
them up, he is liable for a conversion of the same; and he will not be excused
by the fact that afterwards the complainant in the criminal process, not being
the owner of the goods, has nevertheless obtained judgment against him,
40

VOL. XI.

upon his default, for their conversion, and taken them away from him on exe-
cution. Fitzgerald v. Jordan, 128.

PARTITION.

1. A decree of partition, in the probate court, setting off a portion of the reas
estate of a deceased person to his daughter, is conclusive upon her husband,
when finally confirmed and established according to Gen. Sts. c. 136, if he
assents thereto, and in the petition represents that she is entitled to a share of
the estate in her right as an heir at law; and such partition will vest in her a
valid title as against him and his heirs, although before the partition was made
her title had become vested in him by mesne conveyances. Carpenter v.
Green, 26.

2. If partition is decreed, upon a petition for partition, against the opposition of
the respondent, the costs to be taxed against the latter, under Gen. Sts. c. 136,
are limited to the costs accruing between the filing of the answer and the ren-
dering of the verdict. Powell v. Jenny, 104.

See PROBATE COURT.

PAYMENT.

See MORTGAGE, 3.

PLEADING.

1. A declaration alleging the conversion of boots is not supported by proof of

a conversion of unfinished boots, in process of manufacture. Fitzgerald v.
Jordan, 128.

2. One who has been ready and offered to perform services according to the
terms of a special contract may, if prevented by the adverse party from per
forming them, recover the amount due to him, under a declaration upon an
account annexed. Johnson v. Trinity Church Soc. 123.

8. Illegality of a contract which is the subject of an action cannot be relied on
in defence, unless it appears by the declaration or is specially pleaded in the
answer. Goss v. Austin, 525.

4. If on a plea of tender in a police court the money is not actually put into the
custody of the court, but is brought in by the defendant and offered to and
until the rendition of judgment always kept ready for the plaintiff, who re-
fuses to take it, putting his refusal on the sole ground that he claims more, and
after judgment for the plaintiff the defendant appeals and pleads the same
tender in the superior court, and pays the money to the clerk, it is too late for
the plaintiff to object to the defendant's irregularity, in omitting to put the
money into the custody of the police court. Storer v. McGaw, 527.

5. If an action to recover a tax upon a corporation, assessed under St. 1864,
c. 208, is brought by the treasurer of the Commonwealth in his own name, in-
stead of in the name of the Commonwealth, as required by § 14 of that statute,
and the declaration contains no averment that the treasurer was by law au-
thorized to commence the action in his own name, the defendants may take

advantage of the objection, and defeat the action, although no demurrer to the
declaration is filed, and the answer contains neither a special nor a general
denial of the averments of the declaration. Oliver v. Colonial Gold Co. 283.

POLICE COURT OF BOSTON.

The police court of Boston has jurisdiction of a personal action in which the
damages demanded are less than one hundred dollars, if the plaintiff and de-
fendant each has his usual place of business in Boston, and the writ is served
in Boston, and each party lives in a town in which no police court has been
established. Aspinwall v. Cushman, 405.

POOR DEBTORS.

1. If the examination of a debtor on his application to take the poor debtor's
oath is adjourned to another day, and he is ordered to produce certain books
of account at the adjourned hearing, and he duly appears at the adjourned
hearing within the hour but without the books, and then goes away to get the
books without any new request or express consent of the creditor or magis-
trate, and does not return till shortly after the expiration of the hour, and his
absence is not unreasonably or unnecessarily long for that purpose, the magis-
trate may retain jurisdiction of the case and pursue the examination and ad-
minister to him the oath, although the creditor objects thereto. Toll v. Mer-
riam, 395.

2. If a debtor who has been arrested on an execution and entered into a recog-
nizance under Gen. Sts. c. 124, § 10, appears by attorney but not personally
at the time and place fixed for his examination, the magistrate may entertain
a motion of the attorney for an adjournment of the case to another time within
thirty days from the day of the arrest, and may hold the motion under consid-
eration till after the expiration of the hour, and the departure of the credit-
or's attorney, and then grant the same; and may discharge the debtor at such
adjourned hearing. Mann v. Mirick, 29.

PRACTICE.

1. A new trial will not be granted merely because the instructions to the jury
were expressed in an abstract form, if the law was stated correctly and it does
not appear probable that the jury were misled. Wilson v. Terry, 206.
2. If on a question of domicil instructions were given to the jury in the form of
general propositions, which, when taken together, correctly express the law of
the case and contain all necessary explanations and qualifications, a new trial
will not be granted for the reason that a single passage, taken abstractly, may
have been erroneous. Adams v. Nantucket, 203.

3. The omission of the judge to reduce to writing his instructions in a criminal
case and file them with the clerk before the jury retire to deliberate on their
verdict is no ground for setting aside a verdict of guilty, if the defendant did
not request him to do so and has sustained no injury by the omission. Сэт
monwealth v. Barry, 263.

. If various issues have been submitted to a jury, who after agreeing upon

some of them and failing to agree upon others have improperly separated
without leave of the court, their findings upon those issues in regard to which
they agreed will not be set aside, if it appears to the court that their failure to
reach a verdict on the others did not result from inability to agree on any ele-
ment common to all the issues. Vennard v. McConnell, 555.

5. Upon the report of a case for the determination of the full court whether the
jury were warranted in finding the verdict which was rendered therein, the
weight of the evidence will not be considered, but the only question is whether
there was any evidence upon which the jury could legally have found their
verdict. Forsyth v. Hooper, 419.

6. If a commission duly issued in another state to take a deposition in this com-
monwealth directs the oath to be administered by causing the witness to lay
his hand upon and kiss the gospels, the oath may be administered in that form,
although the Gen. Sts. c. 131, § 8, prescribe a different form to be used here.
Commonwealth v. Smith, 243.

7. If the defendants in an action brought in favor of a town have filed an affi-
davit of merits at the first term, the objection that the action was brought
without the authority of the town cannot be taken after the expiration of that
term, even though they have leave to file their answer in the vacation. Wal-
pole v. Gray, 149.

8. Two or more persons who are joined as plaintiffs or defendants in civil ac-
tions have only the right collectively to challenge two jurors, under St. 1862,
c. 84; and not to challenge two apiece. Stone v. Segur, 568.

See COMMON Carrier, 7; EVIDENCE, 15, 17; PLEADING, 4; PROBATE
COURT; RECOGNIZANCE, 1.

PRINCIPAL AND AGENT.

An agent's authority to collect money for his principal is not revoked by the
mere appointment of another agent with like authority; and a payment by
the debtor to the first agent, after receiving notice of the appointment of the
second, will discharge the debt, if there is no other evidence of a revocation
of the first agent's authority. Davol v. Quimby, 208.

PROBATE COURT.

If proceedings for the partition of the estate of a deceased person have been
lawfully commenced in the probate court, and that court has assumed juris-
diction and issued a warrant to commissioners to make partition, the shares or
proportions of the respective parties not being in dispute nor appearing to be
uncertain, that court may retain its jurisdiction, although subsequently the
shares or proportions of the respective parties do appear to be uncertain. Pot
ter v. Hazard, 187,

See ACTION, 3.

PROMISSORY NOTES.

1. An indorsement of a promissory note by a husband to his wife will not vest in
her a valid title to it; and if he has afterwards gone into insolvency, and then