The plaintiff again offered the mortgages in evidence; but the judge refused to admit them.

The plaintiff asked the judge to rule as follows: "1. It is immaterial what was the defendant's belief as to the intention of Leonard in making the sale. 2. If the defendant had reasonable cause to believe that Leonard made the sale in contemplation of insolvency, that is, with a view or under expectation of petitioning for the benefit of the bankrupt act, then such sale was void and the plaintiff can recover. 3. A transfer within

four months of filing the petition by the bankrupt, with a view to prevent the property from being equally distributed among all the creditors, is a transfer in fraud of the bankrupt laws of the United States; and if the defendant had reasonable cause to believe that Leonard was at the time of the transfer insolvent, then he is presumed to know that it was a transfer in fraud of the bankrupt laws of the United States."

The judge refused so to rule; but instructed the jury that the plaintiff, to maintain the action, must prove that, on the day the cattle were delivered by Leonard to the defendant, Leonard was then insolvent in fact, or contemplated becoming so; that the sale and delivery were with a view to give a preference to the defendant as his creditor; that the defendant then had reasonable cause of belief that Leonard was insolvent; and that the defendant knew that such sale was made by Leonard in fraud of the bankrupt law, i. e. so as to evade or defeat the operation of the bankrupt law.

The judge, at the request of the plaintiff, also instructed the jury as follows: "The fraudulent intent, with a view to give a preference, extends to a sale made with an intent to give one creditor any advantage over others in respect of payment or security of his debt. Evidence of the debtor's financial condition and reputation a year before his going into bankruptcy is competent to show what means the defendant had to know or cause to believe that he was insolvent during the year following. It is immaterial whether the defendant in fact did believe that Leonard was insolvent or not. If the sale to the defendant was out of the usual and ordinary course of business, it is primâ facie evidence of the fraudulent intent of the parties."

The jury returned a verdict for the defendant; and the plain tiff alleged exceptions.

C. A. Reed, for the plaintiff.

W. H. Fox, for the defendant.

AMES, J. In order to impeach and set aside a conveyance of property by an insolvent person, as a fraudulent preference of a creditor in violation of the provisions of the United States bankrupt law, it is necessary, as the law now stands, for the assignee of the bankrupt to prove, among other things, that the debtor was insolvent or in contemplation of insolvency, and that the grantee or person to be benefited by the conveyance had reasonable cause to believe the debtor to be insolvent, and knew that the conveyance was made in fraud of the bankrupt act. U. S. St. June 22, 1874, § 12. Until June 22, 1874, it was sufficient to prove, against the grantee or preferred creditor, that he had "reasonable cause to believe" that the conveyance was made in fraud of the statute. U. S. Rev. Sts. § 5128. It is impossible to believe that the change introduced in the more recent statute was intended as a mere verbal alteration. It is well said by Dillon, J., in Singer v. Sloan, 3 Dillon, 110, that if these two forms of expression are in contemplation of law identical, then the change of the statute meant nothing and accomplished nothing; and that "where reasonable cause to believe that a fraud on the act was intended was before sufficient, knowledge of that fact is now required." We have had occasion to decide, in Carroll v. Hayward, 124 Mass. 120, that reasonable cause to know, although it is evidence tending to prove knowledge, is not identical with actual knowledge. "Reasonable cause to believe" is certainly entitled to no greater weight. The court could not have ruled as the plaintiff requested, without giving the jury to understand that something short of actual knowledge would be sufficient to make out this element in the plaintiff's case. Tryon v. Whitmarsh, 1 Met. 1. Pearson v. Howe, 1 Allen, 207.

The bankrupt was called by the plaintiff as a witness, and of course it was competent for the plaintiff to examine him fully as to the disposition of his property, and as to his purpose and design in the arrangements which he had made and carried out. But with regard to his testimony as to a conversation with the plaintiff on that subject, the day after the conveyance, the defendant not being present or having any knowledge of it, we see no ground on which it could have been admitted.

As to the mortgages which he subsequently made to other parties not shown to be connected with the defendant, we find nothing in the facts stated in the bill of exceptions which shows that the presiding judge was bound to rule, as a matter of law, that they and the conveyance to the defendant were parts of one general scheme, or that they had such a connection with each other as to bring them within the rule laid down in Jordan v. Osgood, 109 Mass. 457, and Lynde v. McGregor, 13 Allen, 172, 180. We cannot say therefore that there was any error in holding that the general rule should be applied, namely, that the title of a purchaser is not to be impeached by any subsequent act or declaration of the vendor. Bridge v. Eggleston, 14 Mass. 245, 250. Taylor v. Robinson, 2 Allen, 562. Horrigan v. Wright, 4 Allen, 514. Holbrook v. Holbrook, 113 Mass. 74.

As the question of the defendant's knowledge of Leonard's purpose in making the conveyance was directly raised by the case, it was of course proper to ask the defendant whether he knew that Leonard intended a fraud upon the bankrupt law when he made the conveyance.

The result is, that we find no error in the rulings and instructions at the trial, and therefore the

Exceptions are overruled.

EDWIN S. THAYER & others vs. NEW BEDFORD RAILROAD

COMPANY.

Bristol. Jan. 28.- Aug. 31, 1878. ENDICOTT & SOULE, JJ., absent.

A person cannot, by any use of a navigable dock, gain such a right of way therein as will enable him to maintain a claim for damages for its obstruction by a rail. road built across it on piles without a draw, whereby vessels are prevented from coming up to his own private dock and wharf.

PETITION to the county commissioners for a jury to assess damages occasioned to "certain real estate, easements and privileges" in New Bedford, by the location and construction of its railroad by the respondent.

At the trial before a sheriff's jury, it appeared that the petitioners' property was included between the letters A, B, C and

D on the plan, a copy of which is printed in the margin,* and was between Clark's Point and the head of navigation on the Acushnet River, in New Bedford, and west of the channel. The petitioners' dock is the space included between the letters C, D, E, F. The dotted line represents the centre of the dock, which extends to the open water of the river, and the dotted line through the centre of the dock east of D represents the boundary line between the property of Rotch's Wharf Company and that of one Hazzard.

On June 8, 1873, the railroad, as shown on the plan, was built by the respondent, by authority of law, on piles, and in such a manner as to cut off all access by water to the petitioners' wharf and dock, which was navigable water, and had been used for more than forty years, before such obstruction, for vessels to come and go there and land and take merchandise upon and from the petitioners' wharf, south of the west part of the dock.

The petitioners contended that by long, adverse, continuous and public use, and under claim of right, exceeding twenty years, they had acquired a right of way and passage through the easterly docks to their dock and wharf, and that they had a right in law to recover damages for the obstruction by the respondent. They offered evidence tending to show such use of the docks by them, and the evidence was admitted against the respondent's objection.

The petitioners also put in evidence the Sts. of 1806, c. 18,* and 1831, c. 88; † and a deed of William Rotch, Jr., and others to the Rotch's Wharf Company.‡

The respondent asked the sheriff to rule that the claim of the petitioners that the dock in question, and the docks between it and the open river, were private property, under the provisions of the statutes and deed above referred to, and were not, by force of the statutes, public navigable waters, was not jus

* This act, which is printed in full in 108 Mass. 209, authorizes, in the first section, the owners and proprietors of lots of land adjoining Acushnet River, in New Bedford, between Clark's Point and the head of navigation in that river, and their heirs and assigns, to erect, continue and maintain wharves parallel with the lines of their several lots, as they abut upon said river; and to extend the wharves to the channel of the river, if the owners of such lots think proper; and to provide docks, or erect wharves, on the extended portion of the lots, in such way and manner as the owner of each lot may think proper, not exceeding the limits of the channel of said river. The second section reserves the right to the Legislature to make such provisions respecting the navigation of the river, and the right of taking fish, as it may think the public interest requires, if it appears to the satisfaction of the Legislature that the erection or continuance of the wharves or docks operates any obstruc tion to the right of navigation of the river or the right of taking fish therein. ↑ This act, approved March 15, 1831, incorporated the Rotch's Wharf Company. Section 2 provides, "That said corporation be, and hereby is, declared and made capable to have, hold and possess the following described real estate." [Then follows a description of the property by metes and bounds, which included the land east of the petitioners' land, and also the dock south of the dotted line and east of the petitioners' dock.] "And the Baid corporation shall have power to sell, grant and convey, in fee simple cr otherwise, their corporate property, or any part thereof, and lease, manage and improve the same, according to the will and pleasure of said corporation, expressed at any legal meeting."

This was a deed of quitclaim, dated August 29, 1831, of the premises de Bribed in the above statute.