died, and the assignee in insolvency has had no knowledge of the existence of
the note, and has never authorized an action to be brought thereon, she can.
not maintain an action to recover the same as administratrix of his estate.
And proof that the debtor duly filed schedules of his assets and creditors,
which have since been lost, and took the debtor's oath required by law, is not
sufficient to show that the assignee had such knowledge. Gay v. Kingsley,
345.
2. If the answer, in an action upon a promissory note, dated more than six
years before the commencement of the action, simply sets up the statute of
limitations, and it is in issue whether payments have been made within six
years, the defendant cannot be allowed, in corroboration of his own testimony
that no such payments have been made, to prove that the note was without
consideration. Davidson v. Delano, 523.
8. In an action by an indorsee against the maker of a promissory note, the mere
fact of indorsements of payments within six years, made in the handwriting
of the payee, is not competent evidence to prove such payments. Ib.
See INSOLVENT DEBTORS, 6.
1. It is no defence to an action by a passenger against a carrier to recover dam-
ages for an injury sustained through their negligence, that the negligence or
trespass of a third party contributed to the injury, although such third party
acted entirely independently of the carrier. Eaton v. Boston & Lowell Rail-
road Co. 500.
2. The above rule is not affected by St. 1851, c. 128, authorizing certain rail-
road companies, of which the defendants were one, to use a common track,
and regulating the manner of such use and their liability for accidents upon
the same.
Ib.
3. A street railway corporation has no power to mortgage its franchise, road or
property without legislative authority; and under St. 1864, c. 229, a mort-
gage by such corporation of substantially all of its property, without such
authority, is wholly void. Richardson v. Sibley, 65.
4. The power of making regulations concerning the removal of snow from the
tracks of street railways is given by law exclusively to the mayor and alder-
men of the cities, and the selectmen of the towns, in which such tracks are
located; and in the exercise of this power they may prohibit the removal of
snow by the railway company at any and all times and places when in their
judgment the public interests involved may require it. Union Railway Co.
v. Mayor, &c. of Cambridge, 287.
5. It is no objection to an order of the mayor and aldermen of a city regulating
the removal of snow from the track of a street railway, that it requires and
permits such removal by the railway company only when it is allowed, and in
a manner to be designated, by the superintendent of streets, or other officer
having charge of the condition or repair of streets. Ib.
6. The conductor of a street railway car may exclude or expel therefrom a per
son who by reason of intoxication or otherwise is in such a condition as to
render it reasonably certain that by act or speech he will become offensive or
annoying to other passengers therein, although he has not committed any act
of offence or annoyance. Vinton v. Middlesex Railroad Co. 304.
RATIFICATION.
See CORPORATION, 2.
1. The superior court have authority to allow a commissioner, specially appointed
to take a recognizance from a person under indictment, to file an amended
return thereof, setting forth a different contract, three years after the filing of
his original return, after the parties to the recognizance have been defaulted,
and after an action has been commenced thereon: and such action may there-
upon be maintained by proof of such amended return. Commonwealth v.
Field, 488.
2. If a person under indictment for assault, abduction and kidnapping has
been committed to jail upon a mittimus which contains an order for his com-
mitment for failing to recognize with sureties to answer to an indictment for
kidnapping, a recognizance afterwards taken with condition that he shall an-
swer to an indictment against him for assault, abduction and kidnapping is
valid; although after the taking of the recognizance but before the sureties
therein are defaulted the charge of kidnapping is abandoned. Ib.
8. Under the Gen. Sts., the superior court have authority to require a prisoner
who has filed exceptions after a verdict of guilty has been returned against
him, to enter into a recognizance to appear from term to term in that court,
to answer to the indictment.
1. If one who has received a personal injury through the negligence of another
signs a paper acknowledging the receipt of a small sum of money in full for
his damages, a subsequent action cannot be maintained to recover damages for
the same injury, unless his signature to the receipt was procured through mis-
take or fraud; and if instructions to this effect are requested, and the jury
are simply instructed that if they are satisfied that the parties "fairly settled
the claim it is sufficient, and the amount received in the settlement is not ma-
terial to its validity as a settlement," a verdict for the plaintiff will be set
aside. Curley v. Harris, 112.
2. A., having executed to B. two mortgages of land to secure certain promissory
notes, assigned to B. as additional security certain policies of insurance, from
mutual companies, upon the buildings, and afterwards conveyed the equities
of redemption to B., who received the same in full discharge of the notes. A.
also at the same time executed a release of all claims against B., and espe
cially of any claim which he had or might have, growing out of the mortgages,
or the debts secured thereby, or any matter or thing connected therewith.
Subsequently B. received from the insurance companies certain sums for re-
turn premiums upon the expiration of the policies. Held, that the release by
A. barred his right to recover these sums of B. Merrifield v. Baker, 43.
ROBBERY.
See INDICTMENT, 1, 2.
1. If a dealer in fish has agreed to sell to a purchaser all of a certain kind that
he should pack during a season, at the market prices, and, after a sale and de-
livery of a considerable quantity, executes and delivers to him a bill of parcels
of a quantity more, describing the same, and inserting the prices which they
have fixed, upon or in anticipation of the arrival of the fishing vessels, and
accordingly fish of the same kind described in the bill of parcels, though less
in quantity, are stored in warehouses of the vendor, under direction of the
purchaser, and the warehouses are filled with them, and the fish prior to being
stored are inspected, marked and made ready for immediate shipment, the
sale is complete and the title passes, even as against subsequent purchasers,
although the quantity thus stored is not then ascertained nor the bill settled.
Ropes v. Lane, 591.
2. If, under such a general agreement as above recited, all the fish on hand at a
particular time, in warehouses or on a wharf, are exhibited to the purchaser,
and the prices for the particular kinds have been fixed, upon or in anticipa
tion of the arrival of the fishing vessels, and the fish have been inspected,
marked and made ready for immediate shipment, and they are all delivered
to the purchaser with intent to complete the sale, and it is agreed that they
shall be stored where they are for a time by the vendor at a particular price,
the sale is complete and the title to the whole of the fish passes, as between
the parties, although by mistake bills of parcels which are executed to exhibit
the transaction omit to include a portion of them, and the bills are not then
settled. Ib.
If at the same time when a deed of land is received the grantee mortgages it to
a third person for the purpose of procuring money to enable himself to obtain
his deed, and as a part of the same transaction, his seisin is only instantane-
ous, and the mortgage will bar his wife's dower, although she does not sign it
King v. Stetson, 407,
See EXECUTORS AND ADMINISTRATORS, 1, 2.
1. A bill of lading signed by the master of a vessel by request of the charterers'
agent is not conclusive evidence of the course of the voyage which the master
is to pursue, if the charter contains mutual stipulations as to the course of the
voyage and the mode in which the vessel is to be employed, and there are
other circumstances to show that the bill of lading was not intended to have
this effect. Cobb v. Blanchard, 409.
2. If a vessel is chartered for a voyage from a port in Sicily to Boston, with the
privilege of using a second port in Sicily within certain lay days, which are
fixed, and on arriving at a port in Sicily the master takes in part of a cargo
and signs a bill of lading which is prepared for him by the plaintiff's agent
and which recites that the vessel is "bound for Boston," and he thereupon
sails at once for Boston, without waiting for a full cargo or the expiration of
the lay days, the bill of lading is not conclusive evidence, in an action by the
charterer against the owner to recover damages for the injury caused thereby,
to show that the master was bound thus to sail at once directly for Boston, or
that he exercised good faith in so doing; but if there is evidence tending to
show the contrary, the question should be submitted to the jury. Ib.
1. Receiving state aid will not prevent a soldier from recovering any sum to
which he may be entitled under the votes of the town in which he enlisted.
Grover v. Inhabitants of Pembroke, 88.
2. A citizen of a town who enlisted in the military service of the United States
after a promise of the town to pay a monthly sum to each citizen thereof who
should so enlist had been terminated, under St. 1861, c. 222, § 2, by the lapse
of ninety days, cannot maintain any action against the town to recover the
bounty so voted. Curtis v. Inhabitants of Pembroke, 92.
See CONTRACT, 2-7; EMBEZZLEMENT.
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