1. An indictment for subornation of perjury in a deposition to be used in a civil
action pending in another state, which alleges that on a certain day "a certain
issue was then and there duly joined in the said suit" and that on the same
day" a commission was duly issued" to take the deposition, sufficiently avers
that issue was duly joined in the suit before the commission issued; and if,
after a verdict of guilty, it appears by the bill of exceptions that evidence
was introduced to show the pendency of the action, as alleged in the indict-
ment, it will be presumed, in the absence of anything to show the contrary,
that the evidence showed the pendency of an action in which issue had been
duly joined. Commonwealth v. Smith, 243.

2. If it is averred in an indictment for subornation of perjury that it became a
material question in the trial of the cause in which the perjury was alleged to
have been committed whether the wife of the person alleged to have commit-
ted it had or had not, previously to his marriage with her, been living with
the defendant as his mistress, and that the witness was asked, "Had she not
been living with the defendant before you married her," to which he replied
that she had not, evidence is competent to prove, for the purpose of establish-
ing the perjury, that in fact she had lived with the defendant as his mistress
Ib.

3. Under the statutes of this commonwealth, one may be convicted of suborna
tion of perjury who procures the commission of the perjury here through the
agency of another guilty party, without the limits of Massachusetts. Ib.

SUPERIOR COURT.

See RECOGNIZANCE.

SURVIVORSHIP OF ACTIONS.
See ACTION, 1.

TAXES.

See CONSTITUTIONAL LAW, 1; PLEADING, 5.

TENDER.

See PLEADING, 4.

TOWN.

Under a statute providing that the profits of the alewife fisheries of a certain
river should be paid into the treasuries of certain towns, in proportion to their
respective valuations, the towns have no authority to vote to distribute the
money on the polls. Allen v. Inhabitants of Marion, 108.

See DEED, 4.

TRESPASS.

An action of tort in the nature of trespass quare clausum fregit is a personal
action and may be commenced by trustee process, returnable in the county
where the trustee lives, although that is not the county where the land is situ-
ated. Way v. Dame, 357.

See DAMAGES, 2; DOG; FIREward.

TRUST.

1. A resulting trust in land in favor of a third person may be established by
parol evidence, although the deed recites that the consideration was paid by
the grantee, and it was in fact paid by him, provided that it was distinctly
agreed before the purchase that the sum paid should be considered as a loan
from the grantee to such third person; but the proof upon this point must be
full and clear. Kendall v. Mann, 15.

2. If a conveyance of land is taken in the name of one who is but a nominal
purchaser, and the purchase money comes from a married woman as agent of
her husband, and the grantee named in the deed delivers to her a receipt for
the money and a written promise to convey to her the estate on 'emand, and
the estate is always treated by the parties as belonging to the husband, the
grantee will hold the same in trust for the husband, and the facts creating such
trust may be proved by parol evidence, and the grantee may discharge hi
trust after the husband has died intestate, by conveying the estate to his heir

at law. And the heirs of the wife, after her death, cannot maintain a bill in
equity to compel a conveyance to them. And it is immaterial that one object
of taking the conveyance in that form was to shield the estate from attachment
by creditors of the husband. Perkins v. Nichols, 542.

B. A bill of sale of an undivided share of a vessel, absolute in form, to one who
is named therein simply as trustee, without expressing the nature of the trust,
but with an oral understanding that it is given as security for debts due and
to become due from the vendor to a third party, with authority in the trustee,
in case of default in the payment of any of said debts, to sell the share and
apply the proceeds towards the payment thereof, rendering the surplus, if any,
to the vendor, leaves no equity of redemption in the vendor. And if, on the
return of the vessel from a whaling voyage on which she was engaged at the
time of the execution of the bill of sale, a proportionate share of her catch-
ings is set apart and afterwards sold for the trustee and cestui que trust, and
the proceeds accounted for and afterwards applied so far as necessary by mu-
tual agreement to pay for a proportionate share of the outfits for a new voy-
age, this is sufficient to show an agreement that a share of the catchings of the
new voyage shall be held on the same trust with the share of the vessel, and
the same may accordingly be sold by the trustee in the execution of his trust.
Munro v. Merchants' Bank, 216.

TRUSTEE PROCESS.

If a debtor who has been arrested puts property into the hands of his bail to
secure him for his liability on the bail bond, and the bail is then summoned as
trustee in a trustee process brought against the debtor by another creditor, the
plaintiff in such trustee process is entitled to have the liability of the trustee
determined in that process, although it appears that the trustee has been sued
on the bail bond. Hooton v. Gamage, 354.

See TRESPASS.

USAGE.

A merchandise broker can have no implied authority, from the usage of trade,
to warrant goods sold by him to be of merchantable quality; and evidence to
prove such usage is inadmissible; and a memorandum made by such broker
of a contract for the sale of goods is invalid and inadmissible in evidence, if he
has inserted therein, without express authority, a warranty by the seller that
they are of merchantable quality. Dodd v. Farlow, 426.

WAREHOUSEMAN.

See COMMON CARRIER, 1.

WARRANT FOR TOWN-MEETING.

Under an article in a warrant for a town meeting "to see if the town will
vote to appropriate a sum of money to aid the furnishing and equipment of

volunteer military companies to be enlisted in this town and vicinity, and to
take any necessary measures for the support of the families of those who are
ordered to service, and act on anything relating to the above objects," the town
may vote to pay a certain sum monthly to each citizen of the town whe shall
enlist in the military service. Grover v. Inhabitants of Pembroke, 88.

WAIVER.

See ABSENT DEFENDANT.

WAY.

1. A rope stretched across a highway, above the ground, and attached at each
end to objects which are outside of the limits of the highway, and in temporary
use, is not a defect or want of repair in the highway for which a city is liable
to a traveller who receives an injury from coming into collision with it, while
it is in motion from human agency. Barber v. Roxbury, 318.

2. The selectmen of a town have authority to lay out a town way wholly upon
land of citizens, against their consent, entering their land from a highway and
returning to it at about the same place where it enters, and leading to no other
way or landing-place, and capable of being used for no purposes of business
or duty, or of access to the land of any other person; and which is laid out
with the design to provide access not for the town merely, but for the public,
to points or places in the lands of those citizens, esteemed as pleasing natural
scenery. Higginson v. Nahant, 530.

3. The selectmen of a town may estimate the damages caused to the owner
of land by the laying out of a town way at the same meeting at which the
way is located. Ib.

WILL.

1. It is not a sufficient attestation of a will for a subscribing witness to write his
name in the absence of the testator, and in anticipation of the testator's sig
nature, although he afterwards acknowledges it in the presence of the testator
and of the other subscribing witnesses. Chase v. Kittredge, 49.

2. If a testator, after devising certain land to his brother, on condition of his
paying to the residuary legatce a certain sum, makes his wife residuary lega
tee, and provides that her rights under the will shall not be affected by the
birth of any child born to him before or after his decease, a child born before
his decease cannot maintain an action to recover the whole or any portion of
the land devised to the testator's brother. Prentiss v. Prentiss, 47.
B. If a testator devises to one person all his right, title and interest in certain
real estate, which is subject to a right of dower and a mortgage given by him
self to secure his promissory note, and, after various legacies of money, be
queaths to another person the residue of his personal estate, after the paymen
of all his just debts, legacies and charges against his estate, the mortgage debt
is to be paid out of his personal estate, to the exoneration of the real estate
Plimpton v. Fuller, 139.