bring his action against mortgagor to foreclose his mortgage, even though in possession himself.

But a mortgagee may always maintain trespass against a mortgagor, though in possession, for cutting timber. The principle does not extend to the cultivation of land by mortgagor, nor cutting wood or timber for fires or fences, &c. But any cutting of timber beyond these by a mortgagor, renders him liable in trespass quare clausum to the mortgagee. — Page v. Robinson.

Mortgage Foreclosure. A second mortgagee cannot maintain a writ of entry to foreclose his mortgage against a tenant in possession claiming under the first mortgagee. Batcheller v. Pratt.

New Practice Act - Construction. This was a petition under the provisions of the stat. 1851, commonly called the code of practice, § 66, filed by an assignee in insolvency of one Watson, on the ground that defendant held a mortgage upon certain real estate of the insolvent which the creditors regarded as fraudulent. The respondent lived in New Hampshire, and disclosed in his answer that he was administrator of the mortgagee, and objected to the prayer of the petition being granted.

One objection made was, that the stat. of 1851, c. 233, was repealed by that of 1852, c. 312, 86; this not being an "action pending at the time of the passing of the latter act, although the proceedings were commenced while the act of 1851 was in force. But the court held, that the term "action" in the statute extended to all legal proceedings pending at the time of the repeal, and consequently, within the saving clause.

As to the power of the court to compel a citizen of another State to sue an action in our State courts to test his title to lands within the State, the court expressed no opinion. But as the respondent, in the present case, had no authority to sue the mortgage without taking administration upon his intestate's estate in this commonwealth, the court did not consider they were authorized to compel him to come and take such letters, and consequently could not entertain the prayer of this petition, and it was dismissed. Beaman v. Elliot.

Promissory Note-Indorser - Waiver of Notice, &c. If the indorser of a note is not notified of demand on maker at maturity and failure to pay, or if no demand was made on maker at maturity, and with a full knowledge of the want of demand or notice he agrees to pay the holder, such promise will be a waiver of objection on that account, and render him liable to the indorsee in an action for the recovery of the note, although no new consideration for such promise is proved. Low v. Howard.

Scire Facias-Trustee's Answer, how far conclusive. In this case defendant had been summoned as trustee of a partnership, B. & C., and in his answer disclosed a purchase, or exchange of certain property with one of the partners as a partnership transaction, whereby a certain sum was in his hands which he had paid on the original execution. The plaintiff, contending that it was a private dealing with B. alone, brought sci. fac. against defendant, and offered evidence to prove this, whereby a much larger sum would be found in defendant's hands as trustee of the partnership.

The court, without deciding how far a party might go in an action of sci. fac. to prove facts inconsistent with the trustee's answer in the original suit, held, that inasmuch as the very question sought to be raised by this process had been determined by the defendant's original answer as trustee, it was not competent to controvert that by proof, the plaintiff's remedy, if any, being by an action for a false answer. Gouch v. Tolman.

Trover-Burden of Proof. Trover for a watch left by plaintiff with defendant to repair. When plaintiff called for his watch, defendant informed him he could not deliver it, as it had been stolen. The court thereupon ruled that it was incumbent upon defendant to show he used reasonable care of the watch, if he sought to excuse himself for not delivering it when demanded. The court held, that although trover might not lie against defendant for losing property entrusted to him, the point not having been taken or argued, was not before the court, and that the ruling of the court below, as to burden of proof, was correct. - Brown v. Waterman.

The

Taxes Money had and received. Assumpsit to recover the amount assessed and paid by plaintiff as taxes, on the ground of irregularity in the proceedings of assessors in the mode of assessing the same. question discussed and settled by the court was, whether money had and received would lie against the city, even if the assessors had acted against law in the assessment of the tax.

This form of action as applicable to recovering back moneys paid under proceedings for assessment and collection of taxes, is a modern one. Formerly trespass was the form in use.

But the cases, where such an action lies, are those where the tax is wholly unauthorized, and the money has been collected and received by the town or city to its own use. But where there is a mere irregularity in the mode of assessment, the statute furnishes the only remedy, viz., by application for abatement, and this form of action will not lie.

In the present case, the plaintiff being liable to be taxed in some form and to some extent, it was unnecessary to consider whether the assessment was irregular, for even if such were the case the present action could not be maintained.

The Chief Justice, in giving the opinion of the court, cited and commented on Murray v. Gloucester, 2 Dane, Abr. 330; Stetson v. Kempton, 13 M. R. 272; Rev. Stat. c. 7, § 44; Sumner v. Dorchester, 4 Pick. 361; Preston v. Boston, 12 lb. 7; Boston and Sandwich Glass Co. v. Boston, 4 Met. 181; Torry v. Millbury, 21 Pick. 64; Osborn v. Danvers, 6 Ib. 98; Boston Water Power Co. v. Boston, 9 Met. 199; Howe v. Boston, 14 Law Rep. 551; Inhab. of Newburyport v. County Com'rs, 12 Met. 211. Judgment for defendant. Lincoln v. City of Worcester.

Voting Lists - Duty of Selectmen as to inserting Names of Voters. In this case, which was an action against the selectmen of H. for refusing to place plaintiff's name on the list of voters at the election of State officers and also at an election of a Representative in Congress, the selectmen, after the town-meeting was opened, notified those whose names had been omitted, that they might be heard as to placing their names upon the list. The plaintiff came forward to the selectmen and offered what he contended was satisfactory evidence of his qualification as a voter, and requested to have his name inserted in the list. This they declined to do, although others who applied before and after him were placed upon the list. The court held, that the selectmen were not bound to receive and examine such application after the opening of the meeting; that if they had a right to do so, their neglect or refusal to insert the name of the voter, after the meeting was opened, would not subject them to the liability of an action therefor.

This decision does not impugn the authority of selectmen to correct the lists of voters after the meeting for an election has been opened, in cases of manifest error: such as striking off the names of voters from the list who are not legal voters, and the like; and also, if they see fit, to add the

names of legal voters to such list which have been omitted. Waite v. Woodward et al.

Witness-Competency of an Attorney's Clerk to Testify. In this case the question was as to excluding the testimony of a witness to whom the party made certain statements and declarations in the office of an attorney of this court, where he had called for the purpose of obtaining professional advice. The witness was a student of the attorney, and the latter not being in the office, it was contended that the party supposed the witness was the attorney.

But the court held, he was improperly excluded from testifying; that the declarations which are protected and not to be testified of are confined strictly to those made to members of the legal profession, for the purpose of ascertaining the legal rights of the party making them, and do not extend to communications made to a student of an attorney in his absence, though made in the office of such attorney.— Barnes v. Harris.

Supreme Judicial Court of Massachusetts, Suffolk, ss., November Term, 1852.

Action Evidence. Case for maliciously causing the plaintiff to be arrested at the suit of J. T. without authority. At the trial the plaintiff, a physician, gave notice that he should claim no damages for any injury to his professional character, and offered evidence of actual malice on the part of the defendants, who offered to impeach his character as a physician and citizen. Held, that such an action might be maintained without proof of malice, but that evidence of malice was admissible to increase the damages; and held, further, that evidence was not admissible to impeach the plaintiff's professional character; that the notice given as stated would render it inadmissible, while the evidence offered was inadmissible on general grounds; and that although the allegation in his writ, that in the former action he had been falsely charged with malpractice, might have rendered evidence for the defendant as to that particular charge admissible, it would not evidence of a general character. -T. H. Smith v. Hynd

man et al.

Evidence- (See Action, Railroads) — Insolvent - Trover. Trover by the assignee of an insolvent to recover goods mortgaged by him, against the mortgagee. (See Stat. 1841, c. 124, §3.) Held, that evidence was admissible for the defendant that at the time of taking the mortgage he made inquiries of a party, who told him he had never heard the mortgagor's insolvency discussed, but considered him perfectly good, — it being part of the actual transaction of taking the mortgage; also, that until the proceedings in insolvency were closed, copies from the record, certified by the clerk, were admissible without further authentication. It being agreed that all the original papers in the case should be evidence subject to objections to their competency, the plaintiff read to the jury a certain petition filed in the insolvency proceedings; and it was held, that this was no ground of exception, although it was not evidence of the facts alleged therein. Charles Boardman, Assignee, v. Charles B. Kibbee.

Husband and Wife — Promissory Note. An action cannot be sustained by a woman against the personal representative of her deceased husband, on promissory notes given to her by the deceased during coverture, for money which she was possessed of and owned at the time of their marriage. Eliza O. Jackson v. Thomas B. Parks, Executor.

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Jurisdiction

Mortgage. Under Stat. 1840, c. 87, § 1 and 3, a writ

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of entry to foreclose a mortgage may be brought in the Supreme Court, or be removed to that court, if originally brought in the Common Pleas, on affidavit that the property claimed exceeds six hundred dollars in value.— Leonard Hyde v. David S. Greenough.

Landlord and Tenant Estate at Will. A note to quit under the Rev. Stat. e 60, 26, where the rent is payable at intervals of less than a quarter, must be to quit at the expiration of a month, week, &c. (i e. of such interval) from the day when the rent is payable. William Prescott, Jr. v. William Elms.

Promissory Notes (See Husband and Wife) -Notice to Indorser. Action on a promissory note against the indorser. Defence, want of notice. The note fell due October 29; the indorser died September 5, having named the defendant executrix. She presented the will for probate October 4. Notice thereof was published in the Daily Advertiser, taken by the plaintiffs, October 5th, 12th, and 19th. October 23 she was appointed as executor by the Judge of Probate and qualified as such, and gave notice of her appointment in the same newspaper, Oct. 26, Nov. 2 and 9. After the indorser's death and before October 23, the president of the bank was told that the defendant was named executrix, but had no knowledge of her appointment by the judge of probate before October 29. October 29 the note was presented to a notary for demand and notice. The notary inquired who was to be notified, and who was the representative of the deceased. The messenger replied that he did not know, but the notary made no further inquiry, and the notice was addressed "To the Estate of H. J. O., Esq., deceased, R., Mass.," and put into the post-office. Held, that when the indorser of a note dies before maturity, it is necessary, in order to charge his estate, that notice of non-payment should be given to the executor or administrator, if there be any known to the holder, or who might be known to him on his using due diligence to ascertain; that when the holder and the executor or administrator live in different towns, a notice properly directed to the latter and put into the post-office is sufficient; that the notice in the present case was not properly directed, and that due diligence was not used by the plaintiff to ascertain the proper direction. Mass. Bank v. S. H. Oliver, Executrix.

Railroads Corporation Lease - Evidence. Action against the Old Colony Railroad Corporation for an injury in consequence of negligent management on the South Shore Railroad. There was an executory agreement between the two corporations that the latter road should be leased for almost all purposes to the Old Colony Corporation, which was to carry it on. Subsequently the parties agreed that this agreement should take effect from and after a day certain. Held, that this was a lease from and after that day, and was a valid contract, being sanctioned by Stat. 1849, $63, (passed before the cause of action accrued,) whether valid independent of that contract or not; and that the South Shore road was the road of the defendants within Rev. Stat. c. 39, which regulated this case, so that the Old Colony Railroad Corporation were subject to all the liabilities thereby imposed on this road as on their own. Testimony was taken by deposition by the plaintiff as to what an agent of the defendants said, and they afterwards filed interrogatories to another witness as to the same point. This testimony being rejected when offered by the plaintiff, the defendants thereafter offered their deposition, and proposed to put it in, omitting that portion of it relating to this point; but it was held, that the whole must be read, and that when a party wishes to take a deposition on interrogatories for the purpose of meeting the testimony of a witness who has deposed for his adversary, but does not desire to use the answers to certain of those interrogatories unless the testimony of the other witness shall be used, he must give notice in some way that the purport of these is merely to meet

the testimony of his adversary's witness. Then if the other testimony is not offered or admitted, he will not be required to read the answers to those interrogatories, otherwise he must read the whole if required. — Arad T. Linfield v. Old Colony Railroad Corp.

Way-Contract. Assumpsit on an agreement to pay five hundred dollars towards widening a street in Boston, on condition that the city “should cause the said D street between M. and W. streets to be widened by cutting off all the estates on the easterly side thereof, and leaving that portion of said street twenty-four feet in width of its narrowest part, and provided the same shall be completed within the present year." By proceedings in the ordinary course, in all respects regular, the board of aldermen laid out as a public way a parcel of land on the easterly side of D. street, between M. and W. streets, sufficient to make it of the requisite width, (a portion of which the owners conveyed to the city to be used as a street,) and ordered the removal of all buildings and obstructions over the line of said street as laid out. The buildings &c. were cut off by the city, leaving the street on the portion conveyed as above in fact a few inches less than twenty-four feet at the narrowest part, and leaving also a portion of the buildings projecting over the line of the street in the air, but there was no evidence that the projection beyond the line of widening was left or suffered to remain by any vote of the city or by the consent or knowledge of any officer thereof, unless the same could be inferred from the above facts. The defendant contended that the conditions of the agreement were not complied with. But it was held, that it was not necessary that the street should be clear usque ad cœlum, nor essential in order to widen it, that all obstructions should be removed; and that the street, having been laid out by proper proceedings on the part of the board, it became and was a street twenty-four feet wide, and all the consequences followed, so that the condition of the agreement was complied with. ·City of Boston v. Will-Power-Presumption-Trust. H. H. by his last will directed real estate to be sold, and the proceeds to be paid over to and divided between his two daughters by his executor, and died in 1773, leaving one son, B. H., and two daughters. The executor was outlawed, fled the country, and never executed the power. B. H. being non compos, was placed under guardianship in 1799, and so died in 1830; and on proceedings to recover part of said real estate by the heirs of B. H. against parties claiming under conveyances from the daughters, it was held, that the will gave a power coupled with a trust which was imperative on the donee; that until the execution the fee in the land vested in the heirs subject to the trust which they might be compelled to enforce, and that under the circumstances a conveyance by B. H. in conformity with the trust would be presumed Ira Greenough et al, Pet'rs for Partition, v. Persons unknown and Charles Wells; Charles Hall et al., Pet'rs, &c v. Benj Remick et al.; Charles Hall v. Luther Barnes; Frederick Ockerhausen v. Luther Barnes. Writ, Indorsement of Motion to Dismiss Replevin. Motion to dismiss for the want of a sufficient indorser, the plaintiff's residing out of the State, and for defects in the appraisement.

John Simmons.

Practice

The writs were indorsed "from the office of W. D." Held, that this was a sufficient indorsement; and the defendant having filed answers to the merits November 13, and the motions to dismiss November 17, it was further held, that under the New Practice Act of 1851, § 32, providing that when the defendant has appeared and answered to the merits of the action, no defect in the writ or other process, &c shall be deemed to affect the jurisdiction, (see also Act of 1852, § 22,) the motions came too late, and that it made no difference whether the court was then in session