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town, and a book could properly be said to be kept for this purpose even if it was also used for the recording of other instruments, of the existence of which it was essential that public notice should be given. The presiding judge, therefore, properly admitted in evidence the certificate with the town-clerk's indorsement thereon. Exceptions overruled.

(150 Mass. 67)

COMMONWEALTH v. REED. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 4, 1889.)

CRIMINAL LAW-INTENT.

In a criminal action for selling a horse, held by defendant under a conditional contract, with intent to defraud, the court properly refused to

charge that the fact that defendant sold the horse before it fully became his property would not raise an inference of fraudulent intent, and submitted the evidence of this fact, together with the other evidence in the case, to the jury.

Exceptions from superior court, Bristol county; JAMES R. DUNBAR, Judge.

Criminal action against Charles L. Reed, under Pub. St. Mass. c. 203, § 74, for selling a horse, held under a written and conditional contract, with intent to defraud, before complying with the conditions necessary to acquire title. Defendant offered no evidence. The court refused to rule that no inference as to intent could be drawn from the fact that the sale was made before the property had fully become the defendant's, but did rule that all the facts and circumstances in evidence relative to the sale were competent for the jury's consideration. Verdict of guilty, and defendant excepted.

The Attorney General, for the Commonwealth. L. N. Francis, for defendant.

PER CURIAM. There was evidence tending to show that the defendant sold the horse to Fontaine with intent to defraud. The fact that he sold this property before it had become his, was also in evidence. The defendant could not ask that this fact should be separated from all the other facts, and that the court should rule that this alone afforded no inference of a fraudulent intent. It is not for the court to divide this evidence into parts, and to rule upon the questions whether each, taken separately, would be sufficient to warrant a verdict against a defendant; but, even if it were, the fact that the defendant sold a piece of property not belonging to him had a distinct bearing upon the intent of defendant, and might afford a legitimate inference that it was fraudulent. Exceptions overruled.

(150 Mass. 86)

HOWLAND v. UNION ST. RY. Co., (two
cases.)

(Supreme Judicial Court of Massachusetts. Bristol. Nov. 11, 1889.)

INJURY TO PERSON ON STREET-CAR TRACK.

In an action for injuries caused by being run over by a street-car, there was evidence that plaintiff had walked along the track about 80 or 90 feet

when struck; he might have been unable to hear the car approaching, because of a noisy ice-cart; that the car-driver was careless; and that the car in question was late, and no other was due at the time of the accident. Held, that the question of contributory negligence was properly submitted to the jury.

Exceptions from superior court, Bristol county; JAMES R. DUNBAR, Judge.

Actions by Clarence E. Howland, a minor, who was run over by one of the Union StreetRailway Company's cars, for personal injury; and by Humphrey D. Howland, the father, for the loss of the minor's services, and the expense, care, and trouble incident to the injury. The verdict was for plaintiff in each case. The court refused to instruct that the jury should find for the defendant, and the defendant excepted.

H. M. Knowlton, for plaintiffs. Crapo, Clifford & Clifford, for defendant.

C. ALLEN, J. We think the plaintiffs were entitled to have their cases submitted to the

jury. The boy was in the street for a legitimate and proper purpose. The evidence would have warranted the jury in finding that he had walked upon the street-railway track for not more than 80 or 90 feet, by the side of a noisy ice-cart, which might prevent him from hearing a street-car approaching from behind; that if, at the time of being run over, he was standing still, as he himself testified, this had been but for a moment, while, if the driver of the ice-cart was correct, the boy was yet walking along; that the driver of the street-car was careless; that the boy might properly rely somewhat on the driver's using greater care than he did use; and that there was no reason to expect a car along at that particular time, the car being five or ten minutes late, and another not yet due. With evidence tending to show this state of things, it was for the jury to say whether, on the whole, the boy exercised such care as he was bound to exercise. Exceptions overruled.

(150 Mass. 69)

COMMONWEALTH V. MILLER et al. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 11, 1889.)

CRIMINAL LAW-SEPARATE TRIALS. Where a complaint containing two counts is filed against two defendants, one of whom is found guilty upon both counts, and the other is acquitted upon the first count, the right of the latter to a separate trial upon appeal to the superior court is within the discretion of the court.

Exceptions from superior court, Bristol county.

This was a complaint filed before the first district court of Bristol, containing two counts, charging Charles H. Elderkin and Caleb S. Miller with receiving stolen goods at two different times. Elderkin was found guilty on both counts, Miller on the second only, and both appealed to the superior court. Before the jury was impaneled Miller objected that, while he might lawfully be tried jointly with Elderkin, the separate

offense of the latter, charged in the first | ated to the prejudice of Miller, but there is count, could not be submitted to the same no reason to doubt that the learned chief jusjury at the same time. The court overruled his objection, and he excepted. At the close of the evidence for the prosecution Miller alleged that he had been prejudiced by having the first count tried with the second, and asked that his case be taken from the jury, and he be allowed a separate trial. The court refused, and he excepted thereto. Both defendants were found guilty.

J. Brown, for defendant Miller. A. J. Waterman, Atty. Gen., and H. C. Bliss, Asst. Atty. Gen., for the Commonwealth.

tice before whom the case was tried gave full and amply instructions to the jury, to guard them against undue influence from any evidence which was properly applicable to Elderkin alone, and that the jury on their part gave proper heed to those instructions. The case is not different in principle from other cases where juries have been called upon to apply different portions of the evidence to those parties alone who might properly be affected thereby. Exceptions overruled.

(150 Mass. 66) COMMONWEALTH v. FREELOVE. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 11, 1889.)

CONSTITUTIONAL LAW-INDICTMENT. Pub. St. Mass. c. 213, § 16, providing that no indictment shall be quashed because not concludagainst the statute, etc., if the omission does not ing against the peace of the commonwealth, or tend to prejudice defendant, is not in violation of article 12 of the Massachusetts bill of rights, which provides that no subject shall be held to anfully and plainly, substantially and formally, deswer for any crimes or offense until the same is scribed to him.

Exceptions from superior court, Bristol county.

C. ALLEN, J. For the purposes of this case we are content to assume, without discussion, that an indictment should be quashed which should charge B. with having received stolen goods at one time, and A. and B. with having received other stolen goods at a different time. But the complaint in the present case was proper. It charged both defendants jointly, in two counts, with having received different stolen goods at different times. There was no legal objection to the complaint, and none was taken. Com. v. Hills, 10 Cush. 530; Edgerton v. Com., 5 Allen, 514; Com. v. Sullivan, 104 Mass. 552; Com. v. Darling, 129 Mass. 112. It is true that Miller, having been acquitted on the first count, stood at the Article 12 of the Massachusetts bill of trial in the superior court charged in only one rights provides as follows: "No subject shall count, and with only one offense, while El- be held to answer for any crimes or offense derkin was charged in two counts with two until the same is fully and plainly, substandifferent offenses. But the same result would tially and formally, described to him," etc. have happened if the original prosecution E. L. Barney, for defendant. A. J. Waterhad been by indictment, and the jury had ac-man, Atty. Gen., and H. C. Bliss, Asst. Atty. quitted Miller on the first count, and disa- Gen., for the Commonwealth. greed upon all the rest of the charges. When such a state of things is found to exist the HOLMES, J. This is an action to quash an defendant thus partly acquitted has no abso- indictment for adultery, on the grounds that lute legal right to a separate trial. This is a it does not conclude against the peace of the matter of discretion. It often happens that commonwealth, nor against the statute in evidence which is admissible and perhaps such cases made and provided. Pub. St. c. cogent as against one defendant is incompe- 213, § 16, expressly enacts that no indictment tent as to another. Where it can be antici- shall be quashed on these grounds, if the pated at the outset that there will be such omission does not tend to prejudice the deevidence, the court will sometimes, in excep- fendant; but it is suggested that the statute tional cases, and in the exercise of its discre- is unconstitutional. We shall not consider tion, grant separate trials, but the usual how far the legislature might go in simplifycourse is the other way. Com. v. James, 99 ing indictments before encountering article Mass. 438; Com. v. Thompson, 108 Mass. 461; 12 of the Massachusetts bill of rights. We Com. v. Robinson, 1 Gray, 555. In like man-admit that there are limits to its power in ner, in civil cases, the court has power, in this direction; that, for instance, it could not its discretion, to consolidate several actions, authorize the omission of allegations necesand try them together, though the parties sary to describe a specific crime. Com. v. may not be altogether the same, and though Harrington, 130 Mass. 35; State v. Learned, some of the evidence may not be applicable 47 Me. 426, 433; McLaughlin v. State, 45 Ind. to all of the cases. Springfield v. Sleeper, 115 Mass. 587; Burt v. Wigglesworth, 117 Mass. 302; Kimball v. Thompson, 4 Cush. 441; Witherlee v. Insurance Co., 24 Pick. 67. It has to be assumed that in civil and criminal cases the jury will ordinarily be able to pass upon each case or each count separately, and to apply to each the evidence properly bearing upon it. Com. v. Carey, 103 Mass. 214. It may be conjectured that trying the defendants together may possibly have oper

338; Hewitt v. State, 25 Tex. 722. But there is no doubt that it can do a good deal in the way of simplification. Com. v. Bennett, 118 Mass. 443; State v. Corson, 59 Me. 137; State v. Comstock, 27 Vt. 553; Brown v. People, 29 Mich. 232, 237. We do not think that it needs argument to show that the legislature may dispense with a purely formal averment, which would give the defendant no additional information, and the omission of which would not prejudice him. Com. v. Holley, 3 Gray,

E. L. Barney, for defendant. A. J. Waterman, Atty. Gen., and H. C. Bliss, Asst. Atty. Gen., for the Commonwealth.

458. "Technical and formal objections of this | the defendant. The defendant asked that the nature are not constitutional rights." Com. common wealth be compelled to elect in which v. Hall, 97 Mass. 570, 574. The defendant room the tenement was. This the court rewas safe in assuming that the proceeding fused, and defendant excepted. was under the statute, although he was not informed so in terms. Galizard v. Rigault, 2 Salk. 552, 2 Ld. Raym. 809; 6 Dane, Abr. 676; Com. v. Cail, 21 Pick. 509, 511; Com. v. Elwell, 2 Metc. 190, 191; Anderson v. Com., 5 Rand. (Va.) 627, 632; State v. Cooper, 16 Vt. 551; State v. Brunson, 2 Bailey, 149. Exceptions overruled.

(150 Mass. 71)

COMMONWEALTH v. CLYNES. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 11, 1889.)

INTOXICATING LIQUORS-COMPLAINT.

1. The fact that defendant in a complaint charging the keeping of a nuisance in a certain "tenement," by selling liquors, occupied one room as a shop and another as a living room or kitchen, does not require the commonwealth to elect in which one of the rooms was the tenement.

2. Evidence that defendant unlocked the door and admitted an officer to a room which a number of people were seen to enter, and in which liquor was found; that he stated that for a time he had heeded the law, and asked the officer not to report him; and that he had been seen waiting on persons drinking in the room below, where he had a license to sell, is sufficient evidence that he controlled and occupied the room above.

Exceptions from superior court, Bristol county.

Complaint against Thomas J. Clynes for maintaining "a certain tenement which was then and there used for the illegal sale **.* of intoxicating liquors," etc. The proof showed that on a Sunday an officer stationed near the house saw 49 men and 4 women go up the back stairs on the outside of the rear of the house, and into the second story of the building. That they went in, some singly and some two or three at a time, and stayed, some of them a few minutes, and some longer. He saw 42 of them come out and go away; and some of the men that he saw go in and come out went in sober and came out drunk. That about 5 o'clock on the same day another officer went up the stairs, and found the outside door locked, but upon knocking it was opened by the defendant. The officer said to the defendant: "What is all this? Haven't you been warned about this Sunday racket? Why do you not heed it?" The defendant replied, "I did for a time;" and also said to him, "I wish you would not report this thing to the chief of police;" but the officer said it would be his duty to do so. There was also evidence of persons going in and out of the second story on Sunday, April 21st; but there was no evidence that any person was seen drinking upstairs in said building. Other officers testified that on several occasions between the dates in the complaint they had seen persons in the front shop of said building drinking at the bar, some of whom were drunk, and some under the influence of liqThat they were drinking what was apparently beer, and were being waited upon by

uor.

DEVENS, J. The word "tenement," in its modern use, often signifies such part of a house as is separately occupied by a single person or family, in contradistinction to the whole house. Com. v. Hersey, 144 Mass. 297, 11 N. E. Rep. 116. It may consist of a single room, or contiguous rooms, or rooms upon different stories, if controlled by a single person, and used in connection with each other. The fact (if it were so) that one of the rooms was occupied and used as a shop, and another for a living room or kitchen, by the same person, would not make these rooms distinct tenements. Com. v. Buckley, 147 Mass. 581, 18 N. E. Rep. 571. The commonwealth could not properly have been required to elect in which one of the rooms occupied by the defendant his tenement was. There was sufficient evidence that the defendant controlled and occupied the kitchen upstairs by the fact that he unlocked it, by the language used by him to the officer, and by the other circumstances testified to. Exceptions overruled.

(150 Mass. 59)

COMMONWEALTH v. ROOKS. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 11, 1889.)

INTOXICATING LIQUORS-SALE TO MINOR.

where the commonwealth relied on a sale made
1. On a prosecution for selling liquor to a minor,
by defendant's bar-tender, an instruction that he
must be acquitted unless his knowledge and con-
sent to the general violation of the law by his serv-
ant was shown was properly refused, as knowl-
edge or consent in the particular instance was all
that was necessary.

the servant, in the defendant's absence, violated
2. Also an instruction requiring acquittal if
his order not to make unlawful sales, is defective,
as disregarding the question whether the order
was honestly given and intended to be obeyed.
the employer where the act is committed does not
3. An instruction that the mere presence of
constitute him a criminal, unless he consents and
participates by such consent, is defective, as im-
plying that there must be some additional evidence
besides the presence of the employer to establish

his consent.

4. Testimony of a witness that he saw the minor on another occasion enter defendant's shop; that defendant was sitting in the window; that defendant immediately left the window; that the minor soon came out; and that witness could not say whether he got anything or not,—was admissible as tending to show that the sale relied on was made with defendant's consent.

Exceptions from superior court, Bristol county.

Complaint against Henry L. Rooks for selling liquor to a minor. Defendant brings ex : ceptions.

A. J. Waterman, Atty. Gen., and H. C Bliss, Asst. Atty. Gen., for the Commonwealth. T. F. Desmond and F. A. Milliken, for defendant.

DEVENS, J. The instructions as given di- | that, as the boy went into the shop, the derected the jury to acquit if a sale to a minor fendant got down from the window, and in a was made by defendant's servant without his few minutes after the boy came out. Whether knowledge, authority, or consent, or if the he got anything or not the witness could not government failed to prove that the sale by say. To the admissibility of this evidence the servant was a sale within the scope of his the defendant excepted. In answer to a authority. They treated a sale made by a question by the court, the jury stated that servant at the back door of licensed premises they did not regard the evidence as to anyas prima facie one for which the employer thing previous to May 28th. Assuming, in was not liable, and required affirmative proof favor of defendant's contention, that it was that it was made in the presence or with the not competent for the jury, after verdict, to consent of the employer; and they held the say that they disregarded evidence which had defendant not liable if the servant willfully, been improperly admitted, so as to remove or in violation of instructions, sold intoxicat- the effect of an error made in its admission, ing liquors to a minor, unless the sale was we are of opinion that the evidence was admade with the knowledge or consent of de- missible. It was controverted whether, if a fendant. These instructions were all that sale to the boy had been made by the barthe case required, and were given at the re- tender, it had been so made with the knowlquest of defendant. We must assume that edge and consent of the defendant. It was they were supplemented by proper instruc- denied that the boy Curry was ever in the tions as to the burden of proof and the pre-shop, or permitted to be there. The fact sumed innocence of the defendant, as other that the boy was often seen going into the instructions were given covering the whole bar-room, and that on one occasion it might subject-matter of defendant's request, not objected to, except that they were not in all respects equivalent to all those asked by the defendant.

While the defendant claims that the second, third, and eighth instructions requested by him should have been given, he does not show in what respect those which were given were deficient in properly protecting the rights of the defendant, or why the exact phraseology contained in the other requests should have been adopted. These were all, in some respects, objectionable. The second would have required of the commonwealth to show "a knowledge or consent to the general violation of the law by his servant;" whereas knowledge or consent in the particular instance was all that was demanded. The third would have required the jury to acquit if the servant, during the absence of his master, violated his instruction or order, without regard to the question whether the order was honestly given, under such circumstances that it was intended to be obeyed. If such was not its meaning, the point had been sufficiently covered by the instructions before given. The eighth instruction-"that the mere presence of the employer where a criminal act is committed, unless the employer consents to it, and participates in it by such consent, does not constitute him a criminal" -would have led, without explanation, to the supposition that there must be some additional evidence besides the presence of the employer to establish his consent, and that it could not be inferred from his presence and knowledge merely.

At the trial the commonwealth relied upon a sale made on May 28th by the defendant's bar-tender to a boy named Curry. There was evidence from a witness, Julia Hendoz, that she had often seen the boy going into the defendant's shop, and that on the Saturday previous to May 28th she saw him go to the shop; that the defendant himself was sitting in the front window of his bar-room; and

fairly be inferred that the defendant himself attended upon and had some transaction with him, had a tendency to show that, if any such sale was actually made to him by the bartender, it was made with defendant's consent. Exceptions overruled.

(150 Mass. 73)

SMITH V. SMITH. (Supreme Judicial Court of Massachusetts. Dukes. Nov. 11, 1889.)

TAX-TITLES-QUIETING TITLE-LIMITATION. The superior court, by virtue of its general equity powers, conferred upon it by St. Mass. 1883, c. 223, may entertain a bill to remove a cloud upon pursuance of an unlawful sale for taxes, though title to real estate occasioned by a deed made in the bill be brought more than five years after such sale; Pub. St. c. 12, § 66, requiring it to be brought tion of land lawfully sold for the payment of taxes. within that time, having reference to the redemp

Appeal from superior court, Dukes county. Bill by George A. Smith against Lydia Smith to remove a cloud upon his title. Defendant appeals from a decree entered in favor of plaintiff.

C. G. M. Dunham and J. Brown, for appellant. Braley & Swift, for appellee.

DEVENS, J. The defendant claims through mesne conveyances, under a deed made by the collector of Cottage City at a tax-sale which is alleged to be defective for several reasons. She does not appear, by any facts, to have been, when the bill was brought, in possession of the demanded premises, which have never been inclosed by permanent bounds or fences; nor does it appear that she, or those under whom she claims, have ever occupied the same. A court of equity, by virtue of its general powers, will entertain a bill to remove a cloud upon a title occasioned by a deed, or similar instrument, which may be vexatiously or wrongfully used to invalidate or throw suspicion upon it, where a plain, complete, and adequate remedy at law does not exist. Martin v. Graves, 5 Allen, 601.

Appeal from supreme judicial court, Bristol county.

appeals.

Morton & Jennings, for appellant. E. L. Barney, for appellee.

Such bills have been often maintained where the title to land has been liable to be affected by deeds given under defective tax-sales. The petitioner, Lena L. Watson, widow of Clouston v. Shearer, 99 Mass. 209, 211; Davis John W. Watson, applied to the probate court v. Boston, 129 Mass. 377; Forster v. Forster, of Bristol county to have real estate, of which Id. 559, 566; Holt v. Weld, 140 Mass. 578, her husband died seised by inheritance, set 579, 5 N. E. Rep. 506; Russell v. Deshon, off and assigned to her to the amount of not 124 Mass. 342. The discretionary power exceeding $5,000 in value. On denial of her given by Pub. St. c. 176, §§ 1, 2, by which, petition, she appealed to the supreme judicial in a proper case, a party may be ordered to court of Bristol county, where Martha R. bring an action at common law to try his Watson, the life-tenant, appeared as defendtitle, has not limited this general authority ant; and from the order made therein, affirmof courts of equity. Clouston v. Shearer, ubi | ing the order of the probate court, she again supra. Whether, therefore, the contention of the defendant that a petition under Pub. St. c. 176, and under St. 1889, c. 442, can only be brought in this court is correct or not is unimportant, as this bill was properly C. ALLEN, J. The only interest which brought in the superior court, under the gen- the petitioner's husband had in any real eseral equity powers conferred upon it by St. tate at the time of his death was in a vested 1883, c. 223. Nor can the defendant's con- remainder in certain lands now in the possestention that this bill cannot be maintained sion of the respondent as tenant for life; and because it was not brought within five years the question is whether the petitioner is enfrom the tax-sale be sustained. She bases titled to an interest therein, to an amount this upon Pub. St. c. 12, § 66, which provides not exceeding $5,000, by virtue of Pub. St. that, "in all cases of the taking or sale of c. 124, § 3, wherein it is provided as follows: land for the payment of taxes assessed there- "A wife shall be entitled to her dower at on, the supreme judicial court shall have common law in the lands of her deceased equity powers, if relief is sought within five husband. When her husband dies intestate, years from the taking or sale." In Mitchell and leaves no issue living, she shall take his v. Green, 10 Metc. 101, it had been held, al-real estate in fee, to an amount not exceedthough before the statute giving full equity ing five thousand dollars in value, and shall jurisdiction to this court, that it had no juris- also be entitled, during her life, to one-half diction in equity of a suit for the redemption of the other real estate of which he died of land sold for taxes. The object of Pub. seised." By section 17 of the same chapter St. c. 12, § 66, is to provide a remedy when a it is further provided that, when she is thus party desires to redeem his land from a sale entitled to an estate in fee, the probate court lawfully made for taxes. It has no reference shall "cause such estate in fee to be assigned to a case where there has been no lawful sale, and set out by metes and bounds, in the same and where a party asserts his right as against manner as in other partitions of lands of pera sale made without legal authority. As the sons deceased;" with an exception which is defendant did not, in her argument, contend immaterial here. A widow is not entitled to that the tax upon the land was lawfully as- dower in a vested remainder, (Eldredge v. sessed, or that the attempted sale thereof was Forrestal, 7 Mass. 253; Brooks v. Everett, 13 valid, we deem it unnecessary to discuss these Allen, 457;) nor could she be entitled to a questions. Decree affirmed. life-estate, under the latter part of the above provision in section 3, because one is not seised of an estate in remainder. The provision that she shall take his real estate in fee, under which the petitioner claims, implies that her husband should have had a fee in the estate. The provision for setting out the estate to her, in section 17, implies the same thing. The estate is to be set out to her in fee, which cannot be done when her husband only held a remainder.

(150 Mass. 84)

WATSON v. WATSON.

(Supreme Judicial Court of Massachusetts. Bristol. Nov. 11, 1889.)

DOWER-VESTED REMAINDER-PARTITION.

1. Pub. St. Mass. c. 124, § 3, gives the widow dower at common law in the lands of the husband; and where he dies intestate, and without issue, she takes of his lands in fee not exceeding $5,000 in value, and a life-estate in one-half of all the lands of which he died seised. Section 17 provides that, where she is entitled to an estate in fee, the probate court shall cause such estate to be assigned and set out by metes and bounds. Held that, where the only interest which the husband had in lands is a vested remainder in an estate in possession of the life-tenant, she is not entitled to have any portion of the lands set off, as the husband held no fee therein, and, his estate being only a vested remainder, she was not entitled to dower.

2. Nor was partition maintainable under Pub. St. c. 178, § 68, providing an exception to section 3 of the same chapter, allowing partition of leased lands, as lands in possession of a life-tenant are not within the exception.

Nor can one who has only an estate in remainder maintain a petition for partition, (Pub. St. c. 178, § 3,) except when the same is merely expectant or a lease, (Id. c. 178,

68; Hunnewell v. Taylor, 6 Cush. 472.) There is in section 68 a clear implication that no partition of lands held in remainder shall be made by the probate court, except in the single case of leased lands. See, also, Gen. St. c. 136, § 67. It is argued by the petitioner that the reference in Pub. St. c. 124, § 17, to the proceedings in the probate courts, only means to provide for the manner of setting

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