Sarah F. Sisson, was an amendment of form merely, and did not affect the attachment of the funds in the hands of the trustee, since it introduced no new party or cause of action. Wight v. Hale, 2 Cush. 486. The amendment in this action is at least binding upon all the parties thereto; the trustee is one of the parties. No subsequent attaching creditor or other person has acquired any title or right to the funds in the hands of the trustee since the attachment was made. A trustee cannot affect the question of his being charged or discharged, by paying over the funds in his hands, without awaiting the final action of the court. Vermilyea v. Roberts, 103 Mass. 410. West v. Platt, 116 Mass. 308. Langmaid v. Puffer, 7 Gray, 378.

E. Williams, for the trustee.

GRAY, C. J. It is well settled in this Commonwealth that the middle name or initial is an essential part of the name. Sarah Sisson and Sarah F. Sisson are therefore different names. Commonwealth v. Hall, 3 Pick. 262. Commonwealth v. Shear

man, 11 Cush. 546. Commonwealth v. McAvoy, 16 Gray, 235. The misnomer could not indeed be taken advantage of by the principal defendant, who had been duly served and had suffered a default; and it might, as between her and the plaintiff, be amended, at the discretion of the court. Trull v. Howland, 10 Cush. 109. Crafts v. Sikes, 4 Gray, 194. Langmaid v. Puffer, 7 Gray, 378. But such an amendment cannot affect intervening rights of third persons. The only writ served upon the trustee was against Sarah Sisson. The trustee, having no funds belonging to any person of that name, and acting, so far as appears, in good faith and with no notice or knowledge that the person intended to be sued was Sarah F. Sisson, lawfully paid over to the latter the funds in its hands belonging to her, and cannot by the subsequent amendment of the writ be made liable to pay the same over again to the plaintiff.

The cases, on which the counsel for the plaintiff relies, contain no adjudication inconsistent with this conclusion, although expressions in some of the opinions might, apart from the facts to which they applied, seem to countenance his position. In Langmaid v. Puffer, above cited, the question arose between the plaintiff and defendant. In Wight v. Hale, 2 Cush. 486, and in West v. Platt, 116 Mass. 308, the writ was sued out by or 36

VOL. XI.

against two partners, described and clearly identified by the true names of the partnership and of one partner, although there was a clerical error or omission in the name of the other partner. In Vermilyea v. Roberts, 103 Mass. 410, the trustee's answers admitted that he still held the funds after the amendment of the writ, so that he was prima facie chargeable; and the mere fact that he had, before the amendment, received a copy of an assignment of the funds, without further proof of its existence or validity, did not show, as matter of law, that the court below erred in charging him. Richards v. Smith, 9 Gray, 315. Lane v. Felt, 7 Gray, 491. Judgment affirmed.

ALONZO J. MARVIN vs. EDWARD D. MANDELL.

Bristol. Oct. 22.- Nov. 11, 1878. ENDICOTT & LORD, JJ., absent.

In an action for money had and received, the defendant, under a general denial, may prove that money, admitted to have been received by him, was, by agreement of parties, applied to the payment of advances previously made by him to the plaintiff.

Under the St. of 1867, c. 56, § 2, making it lawful to contract to pay a greater rate of interest than six per cent. per annum, and providing that no greater rate "shall be recovered in any action, except when the agreement to pay such greater rate of interest is in writing," a person who has paid a greater rate than six per cent. per annum, under an oral agreement, cannot maintain an action to recover back the

excess.

MORTON, J. This is an action of contract for money had and received. The answer is a general denial. At the trial, the evidence tended to show the following facts.

The plaintiff was master of the whaling ship Adeline, and the firm of Charles R. Tucker & Co., of which the defendant is the surviving partner, were the agents of the ship. Before the ship sailed, in 1869, the plaintiff bought one sixteenth part of her, and the defendant advanced to the plaintiff a portion of the purchase money. Mr. Tucker, one of the firm, told the plaintiff that they should be obliged to charge him seven per cent. interest, as they had to borrow the money, and it would cost them as much as that at least. The plaintiff said he would do what was right, and was willing to pay them whatever it cost them for the money, but no agreement in writing was made between the par

ties. After the return of the ship in 1874, the defendant's firm made up their account with the plaintiff, charging him seven per cent. interest compounded, on the advances made by them. The computation of the interest was explained to the plaintiff, and he made no objection to it. The account was settled between the parties in December, 1874, the plaintiff giving his receipt in full. The defendant testified that the amount charged for interest was what it cost the firm to obtain the money advanced to the plaintiff.

Upon this evidence, it was competent for the jury to find that the agreement between the parties in 1869 was that the defendant's firm, upon receiving the proceeds of the plaintiff's share or interest in the voyage, might apply them in the first instance to the repayment of the advances made by them to him, with such interest as was agreed upon.

If this was the agreement, it follows that the money received by the defendant's firm, to the amount necessary to repay their advances and interest, was not received to the use of the plaintiff, but to their own use, and this defence is open to the defendant under a general denial.

The rule of pleading is, that any matter in discharge or avoidance of a debt once existing must be specially pleaded, but any matter which shows that the debt never existed may be given in evidence under a general denial. It was competent, therefore, for the defendant in this case to prove, under his general denial, that the amount claimed by the plaintiff was, according to the agreement of the parties, received and applied by the firm to the advances made by them and interest. Such evidence would sustain his denial, and show that no indebtedness to the plaintiff ever existed on account of the money so received and applied. Howard v. Hayward, 16 Gray, 354. Hawks v. Hawks, 124 Mass. 457.

It should be observed, to prevent misunderstanding, that the plaintiff only claims in this suit the sum of $145, being the exress of the interest over six per cent. retained by the firm. If he had claimed the whole amount received by the firm as the proceeds of his share, the defendant, in order to avail himself of any payments to the plaintiff made since the receipt, must have specified them in his answer.

Another question involved in the case, though not strongly pressed by the plaintiff, is whether the plaintiff was entitled to a verdict because the defendant's firm retained a greater rate of interest than six per cent. The St. of 1867, c. 56, § 2, provides that it shall be lawful "to contract for payment and receipt of any rate of interest; provided, however, that no greater rate of interest than six per centum per annum shall be recovered in any action, except when the agreement to pay such greater rate of interest is in writing." The third section repeals §§ 3-5 of the Gen. Sts. c. 53. Under this statute, so long as an oral agreement to pay a greater rate of interest than six per cent. remains executory, it cannot be enforced. But it is lawful for parties to pay and to receive a greater rate; and if a greater rate is voluntarily paid, the excess over six per cent. cannot be recovered back.

In the case at bar, if the jury find that the parties in 1869 made the agreement as claimed by the defendant, and that the defendant's firm, upon receiving the plaintiff's money, in good faith and according to the terms of the agreement, applied it to paying their advances and interest, or if they find that in 1874 the plaintiff, no fraud or deception being practised upon him, voluntarily settled the account of the defendant, he cannot maintain his action.

For these reasons, we are of opinion that the learned judge who presided in the Superior Court erred in directing a verdict for the full amount claimed by the plaintiff, and that the case should be submitted to the jury with proper instructions.

G. F. Tucker, for the defendant.
H. M. Knowlton, for the plaintiff.

New trial ordered.

WILLIAM CARROLL & another vs. ST. JOHN'S CATHOLIC TO TAL ABSTINENCE AND MUTUAL RELIEF SOCIETY.

Bristol. Oct. 24.- Nov. 11, 1878. ENDICOTT & LORD, JJ., absent.

A lease, purporting to be between A. as lessor and a corporation as lessee, was executed by A. and by B. and C., with no words to indicate in whose behalf the two latter signed it or in what capacity. B. and C. were the majority of a committee appointed by the corporation to make a lease, which made a report that it had made this lease for the corporation. The corporation accepted the report, entered under the lease and occupied the premises. Held, that the corporation was liable for the rent reserved in the lease, and could not terminate its estate by a notice sufficient to determine a tenancy at will.

A corporation, occupying a hall under a lease, appointed a committee to wait on A., the lessor, and "to ask for a reduction of the rent of the hall." The committee reported orally that A. said that he could not reduce the rent, but if the corporation would pay a certain sum until a certain date, then the lease should terminate. The corporation voted "that the report of the committee which waited upon A. for a reduction of the rent of this hall be accepted." Held, that this vote was not an acceptance of A.'s proposition.

CONTRACT for rent of a hall for October and November, 1876, and for a gas bill, under a written lease signed by the plaintiffs and by Thomas McCarty and Edward Higney. Trial in the Superior Court, before Dewey, J., who, after a verdict for the plaintiffs, allowed a bill of exceptions, so much of which as is material appears in the opinion.

J. M. Morton, Jr., for the defendant.

T. M. Stetson & H K. Braley, for the plaintiffs.

MORTON, J. The lease in question purports to be a lease from the plaintiffs to the defendant for five years from October 1, 1874, at a rent of twelve hundred dollars a year, payable monthly. It is duly executed by the plaintiffs. It was not exe cuted on behalf of the defendant in its own name, but was executed in their private names, by a majority of a committee appointed by the defendant to make the lease. The defendant asked the court to rule that, owing to this defective execution of the lease, it was not bound by it, but was to be regarded as a tenant at will with power to terminate its tenancy by due notice. The court rightly refused this ruling. It appeared at the trial that a committee had been appointed with instructions to lease the hall for five years, that it reported that it had made