from my estate." Then follows the provis- | be large or small, she did not name specific ion for the division referred to, which, after sums for his children, but divided the whole excluding the articles of personal property first among him and them equally. In view of mentioned, orders all her estate, expressly in- all the provisions of the will we are of opincluding these notes and loans, to be divided ion that the indebtedness of Jarvis W. Robinto five equal shares. She then takes each inson should be set-off against the share of share by itself, and, in a separate clause of the estate devised to him and his children. the will for each, directs the manner in which Decree accordingly. it "shall be distributed" to some one of her five children, and his or her children. Having thus treated each branch of her family with absolute equality, and having modified the shares of her children only by subtracting from each a greater or less sum, to be given directly to their respective children, she states her manifest purpose in the tenth clause by saying that she makes the division with equal love and affection towards all her children. (150 Mass. 106) CITY OF FALL RIVER v. CITY OF Taunton. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 13, 1889.) PAUPERS-MILITARY SETTLEMENTS. who had enlisted and served in the civil war for a St. Mass. 1865, c. 230, provided that soldiers year on the quota of any city or town, and had received an honorable discharge, should have a settlement in such city or town, but limited its provisions to soldiers who were of full age at the time of their enlistment. St. 1870, c. 392, repealed the former statute, and re-enacted the same provisions, without the limitation, and added a prothe commonwealth. Held, that since the passage vision for soldiers who had served on the quota of of that act soldiers who were minors at the time of their enlistment are entitled to the same benefits under this law as if they had been of full age. Exceptions from superior court, Bristol county. Action by the city of Fall River against the city of Taunton to recover money paid for the support of a pauper whose husband enlisted and served in the civil war on the quota of the defendant city, and who was, at the time of his discharge, a minor. Defendant demurred on the ground that it did not appear that the pauper ever had a settlement in the defendant city. The demurrer was overruled, and judgment ordered for plaintiff. James F. Jackson, for plaintiff. A. M. Alger, for defendant. It is plain from the language of the fourth clause that she intended that all the loans and notes should be reckoned as part of her estate, and that the shares should be ascertained on that basis. The third clause also shows the same intention. It is agreed that her son Jarvis owed her $10,000 or $12,000 for such loans when the will was made, and from her reference to the subject in the third clause it is evident that she expected a material increase of the loans. Indeed, it is found as a fact that he had been since the death of his father, and then was, dependent for the most part on assistance from her for the support of himself and his family. He died insolvent in the life-time of the testatrix, and the amount of the loans advanced to him was then more than $23,000. The words, "legacy given from my estate," in the third clause, could not have referred merely to the portion which he would receive in the distribution under the sixth clause of the share set apart for his family; for her whole estate, including the loans, KNOWLTON, J If the husband of the pauwas only $200,000, and that portion could in per gained a settlement by his enlistment no event exceed $8,000, while the amount to and service as a soldier upon the quota of the be collected from him by set-off was $10,000 defendant city in the war of the Rebellion, or $12,000 when the will was made, and was the demurrer must be overruled. It has unlikely to be, as it afterwards was, largely in-doubtedly been a part of the wise and hucreased. The language of the third clause mane policy of the commonwealth, in its legrequires the set-off "betwixt the debt***islation for the relief of paupers, to prevent, and the legacy" to be made "in the division" so far as possible, the compulsory separation of the estate which was directed. The legacy referred to was the legacy to him and his family to be obtained by that division; and the division into five equal shares, required by the fourth clause, was the only one named as such in the will. The language used in providing for the distribution of the shares among the members of each family strengthens this conclusion. Except to the children of her son Jarvis, she set apart specific sums to her grandchildren in each family, and gave the rest of the share to their parent. In those cases there was no doubt that the share would be sufficient for the payment of these sums, with a substantial residue for the parent. But knowing that the share for the family of Jarvis would be much smaller, and of uncertain amount, and adopting a method which would be equitable whether the amount should of members of a family. A wife follows the settlement of her husband, and legitimate children follow the settlement of their father, if he has any in the state, and if he has none, they follow that of their mother, if she has any. Pub. St. c. 83, § 1. The statute of 1865, c. 230, which first created military settlements, was passed when there were many soldiers in the state who had not attained their majority, and it recognized this policy by limiting its provisions to persons who were at the time of enlistment of the age of 21 years. It also contained an exception of those who had not resided in the city or town six months next previous to the time of entering service. It further provided that a person who, by reason of want of age or residence, should not be entitled to a settlement under the act, should nevertheless be demandant. The tenant claimed the land in controversy by purchase under a second execution levied on the balance of the land attached. There was a judgment for the tenant, and demandant appeals. J. Brown, for remandant. Bradley Swift, for tenant. entitled, for himself, his wife or widow, or of the whole, and had been redeemed by the minor children, to support in the city or town, if they should fall into distress therein, and should not be sent thence to the state almshouse, nor removed to any other place. The statute of 1870, c. 392, §§ 3, 5, 6, repealed the former legislation upon this subject, and substituted the same law, with the exception of the provisions as to age and inhabitancy, and the provision last above stated, and with a clause including persons who served on the quota of the commonwealth, but not on the quota of any city or town. At the time of the passage of this act the war had been ended more than five years, and there were very few, if any, who had served a year in the war who had not attained their majority. We think the omission by the legislature of the original provisions in regard to minors was for the purpose of making a material change in the statute, and of including a large class who had become of full age, and who were not included in the former statute, because many of them were then minors. The extension of the liberal provisions of the law by St. 1871, c. 370, § 2, and the re-enactments of St. 1878, c. 190, and of Pub. St. c. 83, § 1, cl. 11, confirm this opinion. Since the passage of St. 1870, c. 392, soldiers who were minors at the time of the enlistment are entitled to the same benefit under this law as if they had been of full age. Demurrer overruled. DEVENS, J. An attachment of the real estate of the husband had been lawfully made by an order of the probate court, to a specified amount, in a proceeding by the wife praying for a separate support and the custody of her children. Pub. St. c. 147, §§ 33-35, and chapter 146, §§ 11, 12, 15, 33, 37. An execution had been issued for non-payment of certain arrears of the allowance ordered by the probate court, and had been levied by sale of certain lots of land of the husband included in the attachment, but not of all of them. Said execution and sale thereon had been for an amount much less than that of the attachment. The case presents the question whether a new and additional execution might be issued for the amount of arrears which subsequently become due, and whether, under it, a sale may be made of the other real estate of the husband, which would give a title to the extent of the amount for which the property had been originally attached, and which had not been exhausted by the former levy, superior to that of any one to whom the husband had alienated the estate. If the original attachment remains in force, after an execution has once been issued and served, so that other land may be taken, by virtue of a second execution issuing upon the decree, to the amount of the attachment, as HUSBAND AND WIFE - MAINTENANCE-ATTACH- the wife may from time to time petition for (150 Mass. 92) DOWNS v. FLANDERS. (Supreme Judicial Court of Massachusetts. Dukes. Nov. 12, 1889.) MENT. tached consisted of separate and distinct parcels; and the second execution, under which the tenant claims, was levied by sale thereof upon different tracts from those which had been sold by virtue of the first execution. 1. Under Pub. St. Mass. c. 161, § 52, providing and obtain from the court successive executhat personalty and realty attached shall be held for tions in the original proceeding, the demand30 days after final judgment for plaintiff, the attach-ant evidently has no title. The property atment allowed by Id. c. 147, § 35, in a proceeding by a wife for separate maintenance and the custody of children, being for the purpose of securing such maintenance as may be awarded to the wife, and there being no final judgment in such a proceeding, remains for the further security of the wife after the satisfaction of any execution against the attached property, so far as the property has not been applied thereto, and a sale under subsequent executions confers a good title against any one to whom the property has been conveyed while under the attachment. 2. The return to such attachment may be amended in order to show that the officer levying it had deposited a copy of the petition and order thereon in the clerk's office; such amendment being only a true statement of what was done under the attachment, and not an act in completion thereof. Appeal from superior court, Dukes county. This was a writ of entry brought by Charles S. Downs against Samuel Flanders to recover a life-estate in lands conveyed to demandant's deceased wife by one Mayhew, the lands at the time of such conveyance being under an attachment issued on the petition of Mayhew's wife for separate maintenance, as provided by Pub. St. Mass. c. 147, § 33. Part of the land so attached had been sold on execution subsequent to Mayhew's conveyance The attachment in a proceeding for separate maintenance is made "as in the case of a libel for divorce." Pub. St. c. 147, § 35. While it is provided by Id. c. 161, § 52, that real or personal estate attached shall be held only for 30 days after final judgment for the plaintiff, the laws relating to attachment in suits at common law or in equity do not apply, except so far as they are not inconsistent with the sections of the statute which permit such attachments in cases like the one at bar. In libels for divorce or petitions for separate maintenance, there is no final judgment which closes the proceeding as ordinary actions are terminated. The orders and decrees in reference to support, alimony, etc., remain open always to revision, and the purpose of an attachment is to secure such suitable support and maintenance to the wife and her children as may be awarded, by enabling the court to enforce its decrees, as they may be originally made or modified upon the property thus sequestered. Chase v. Ingalls, 97 Mass. 524; Barney v. Tourtellotte, 138 Mass. 106; Burrows v. Purple, 107 Mass. 428. It has been held in Allen v. Allen, 100 Mass. 373, that an action at common law would not lie to recover arrears of alimony; and this, for the reason that the court had power to revise and alter its decrees, or make any decree in such matters that it might have made in the original suit. Slade v. Slade, 106 Mass. 499. The same reason is applicable in cases of separate maintenance. The party in whose favor a decree has been rendered must resort to the court rendering it for aid in its enforcement; and an execution, where the decree is for the payment of money, is an appropriate remedy. In Sewall v. Sewall, 130 Mass. 201, 204, it is clearly intimated that, in an attachment of property on a libel of divorce, the libelant is entitled to successive executions until the attached property is exhausted, and that the attachment continues until that time. It is said by Mr. Justice LORD: "If the property attached is sufficient in value to satisfy but one execution, it has done all that the libelant had a right to expect it to do. If the property was of much more value than the amount of the execution, then the libelant might satisfy the execution out of the property, and retain the attachment upon the balance of it for further security; or, if the property were of such a nature that the officer might be justified in converting it into cash, he might so convert it, satisfying the execution out of the proceeds, and hold the remainder under the attachment." We are of opinion that after the satisfaction of the first execution the attachment still continued for the further security of the wife, so far as the property attached had not been applied thereto, and that it was in the power of the probate court to issue successive executions, the levy of which would confer a good title as against any one to whom the property had been alienated while under the attachment. The demandant objects that the original attachment was not valid because the officer's return did not show that he had deposited a copy of the petition and order thereon in the clerk's office. The officer was permitted to amend his return in accordance with what the superior court must have found to be the fact. He was not allowed to do any act in order to complete his attachment, but to state truly what he had done in making it. The amended return, when allowed, became a part of the records of the court, and was admissible to show the attachment on which the tenant relied. Judgment for tenant. 2. In an action of tort for defendant's assault on plaintiff, occasioned by the former's attempt to ive lands, evidence that defendant dug a trench on remove a division fence between their respecthis own land, across a right of way claimed by plaintiff's husband, into which the husband fell, and was injured, is inadmissible to prove malice, in the absence of further proof of an intent that he should fall into the same, and that it was not merely dug as a denial of the husband's claim. Exceptions from superior court, Bristol county. E. Avery and T. F. Desmond, for plaintiff. A. J. Jennings and L. L. B. Holmes, for defendant. DEVENS, J. The case at bar is an action of tort, brought to recover for injuries sustained by an alleged assault on the plaintiff by the defendant, while the defendant was in the act of removing a division fence between the lands of the defendant and those of the plaintiff, after notice to the plaintiff of his intention to remove the same. At the trial, the defendant having testified on his own behalf, the plaintiff was permitted to offer evidence, by a record of this court, of the conviction and sentence of the defendant for the same assault. This evidence was admitted, against the exception of defendant, for the sole purpose of affecting his credibility. Pub. St. c. 169, § 19, provides that the conviction of a crime may be shown to affect the credibility of a witness, and it is urged that this means that the crime shall be of such a nature as in itself to affect the credibility of a witness, and that the mere fact of a conviction for an assault could not be of this character. The language of the statute is explicit and general, and permits the conviction of any crime to be given in evidence, leaving to the jury to judge how far the credibility of a witness may be affected thereby. Undoubtedly a conviction of some offenses should affect this but slightly, perhaps not at all. Previous to the statute of 1852, c. 312, § 60, the law in regard to the impeachment of witnesses by the evidence of convictions of other offenses had become very unsatisfactory, as pointed out by Chief Justice CHAPMAN in Com. v. Hall, 4 Allen, 305, and artificial distinctions had existed by which, in some instances, evidence of convictions for offenses which bore very strongly on the credibility of a witness was not received, while in others evidence was received of a conviction which could only bear very slightly on this question. It was deemed wiser, therefore, that any conviction of a crime should be received; that such weight should be attributed to it on this question as, in the judgment of the tribunal before which the witness appeared, it deserved. The statute puts all convictions of crime on the same footing,-those which would formerly have excluded a witness: those which have heretofore gone to credibility; and those which formerly would not have been admissible at all. Gertz v. Rail road Co., 137 Mass. 77, 79. The evidence of the conviction of the defendant, who was also a witness, was therefore properly admitted for this limited purpose. The plaintiff's husband claimed a right of way over certain premises of the defendant, which claim was disputed and denied by the defendant; and, for the purpose of showing malice on the part of the defendant in the assault on the plaintiff, she was allowed to show, against the exception of the defendant, that he dug a trench across said way, into which her husband, while attempting to pass along said way, as he claimed the right to do, fell, and was injured. In an action of tort for injury to the person, the manner and manifest motive of the assault, and the circumstances under which it occurred, may be given in evidence upon the question of damages, as the same physical injury may be attended with more aggravated effects on the mind when maliciously done. Hawes v. Knowles, 114 Mass. 518; Smith v. Holcomb, 99 Mass. 554. It would certainly be going very far to receive as evidence of malice towards the plaintiff, which might enhance damages or as evidence to discredit the witness, the fact that in a controversy with the plaintiff's husband. at another time, and upon another subject than that of the division fence, the defendant had conducted himself maliciously towards, and had injured, him. In York v. Pease, 2 Gray, 282, which was an action of slander, evidence of a quarrel between the plaintiff's father (who was also the prochein ami by whom the action was brought) and the defendant was held to have been rightfully excluded. But if it were competent to receive such evidence, with relation to plaintiff's husband, that offered and received does not of itself show any malicious conduct towards him, nor appear to have been connected with any other evidence which would fairly lead to the inference that it was so. The defendant and the husband disputed over the right of way asserted by the latter over defendant's land. The defendant dug a trench upon his own land, across the way, as claimed. There was nothing to show that he did this with any purpose except as a denial of the claim of the plaintiff's husband, and an assertion of his own right to close such way, or with any intent that the husband should fall therein, or be injured thereby. The evidence as to this matter was erroneously admitted, and upon this point the exceptions of defendant must be sustained. We do not consider the other exceptions of the defendant, as the questions presented by them are not likely to arise in a similar form at another trial. Exceptions sustained. (130 Ill. 525) ROHN et al. v. HARRIS et al. 1. The owner of an undivided interest in a ferry, including both franchise and landings, may bring a bill for partition of the entire property. 2. Under Rev. St. Ill. c. 106, § 1, which provides that partition of land may be compelled "by bill in chancery, as heretofore, cr by petition," and section 16, which directs that the court shall appoint three commissioners to make partition, a decree in partition ordering sale of the property without the proceeding is by bill, and not by petition. appointment of commissioners is erroneous, though 3. A private act of the legislature, confirming the transfer of a ferry from one individual to another, does not affect the rights of third persons. 4. The possession of grantees of a tenant for life is not, during the life of the grantor, adverse as against the reversioner, within the purview of the statute of limitations. Error to circuit court, Cass county; CYRUS EPLER, Judge. Morrison & Whitlock, for plaintiffs in error. Pollard & Phillips, for defendants in error. CRAIG, J. This was a bill for partition, brought by Ann Harris and Mary Francis Byers, in which they claim the undivided one-half of the ferry crossing the Illinois river opposite the town of Beardstown, Cass county, with all and singular the hereditaments and appurtenances thereunto belonging, including all ferry landings belonging to the same, situated both in Cass and Schuyler counties; also all boats, tackle, and property belonging thereto, and the franchise thereof. The complainants claim title to an undivided one-half of the property as devisees of Edward Tull, who died in 1842. It appears from the evidence contained in the record that the land on which the ferry has its landings at Beardstown was entered in 1827 by Thomas Beard and E. C. March, who laid out Beardstown on the north fractional-half of section 15, at that time in Morgan, but now in Cass, county. Prior to 1828 Beard had established a ferry over the Illinois river where Beardstown now is. The town was laid out in 1829, and the ferry was duly licensed, and the license paid by Beard. From 1837 to 1865 the ferry was duly licensed to Beard and his grantees by the commissioners of Cass county, and from 1865 till now by the city of Beardstown, and the license fee paid to Beardstown. That the owners of the boat landed on the lands above described, and claimed the right to do so since the ferry was established. The usual places of landing were on an unplatted piece of ground, and on a public street of said city. Beard was the sole owner of said boat up to September 8, 1840, when, for the expressed consideration of $3,500, his wife joining in the deed, he conveyed to Edward Tull the deed, containing the following: "Do bargain, sell, and quitclaim unto Edward Tull, his heirs and assigns forever, all right, title, and interest in, and to the undivided half of the ferry crossing the Illinois, river opposite the town of Beardstown, Cass county. Illinois, with appurtenances thereto belonging." Upon making the purchase Tull took possession of the ferry, and with Beard ran and operated it until he died in 1842. Tull died testate, and by his will devised "the rents, profits, and all his interest in said ferry to his wife, Mary Ann Tull, during her natural life, for the within, and governed by, the conveyance act, maintenance of herself and child or children, or whether it was to be regarded as a personand their nurture and education," and after al chattel in its sale and transfer; and the her decease devises the same to his son, court held that a ferry franchise could only David Tull, or the proceeds thereof, if sold, be transferred in accordance with the proand, if any posthumous child or children be visions of the statute in reference to the conborn, then said property, or the proceeds veyance of real estate. Strictly speaking, it thereof, if sold, to be divided equally between may be conceded that a ferry franchise is not said David and such child or children. Tull real estate, but it partakes so far of the natleft surviving him a widow, Mary Ann, who ure of real estate that we are inclined to subsequently married David Clendenning, hold that it may be partitioned in the same one son, David Tull, and a posthumous child, manner as real property. The land on each Mary Francis, who afterwards married Abra-side of the river where the boats landed be. ham Byers. The widow, upon the death of longed to, and was a part of, the ferry, and her husband, went into the possession of the no question can arise as to the jurisdiction of ferry, and so continued until May 19, 1849, the court to award a partition of the land; when she sold and conveyed her life-estate and the franchise to cross the river and setherein to Thomas Beard. From the date of cure tolls was so connected with the land that this deed Beard operated the ferry until his it may, for the purpose of this proceeding, be death. He died testate, and by his will de- regarded as a part thereof. vised the ferry property in trust to his execu- It is also claimed that whatever rights tors, one-half of net proceeds of ferry to be complainants had in the property are barred paid to his wife, balance of his property to be by the statute of limitations. It may be equally divided among his six children, and true that defendants' grantees, Jones & upon death of his wife reversionary interest Thompson, held possession of the property of lands devised to her to be equally divided under color of title, and paid all taxes for among his children. The will also contained more than seven years; but the bar of the this provision: That the interest in the ferry statute of limitations cannot be invoked to at Beardstown, and purchased by him of defeat the title of the complainants, under Mrs. M. A. Clendenning, and contingent up- the facts of this case, on the ground that the on his life, "be insured in continuation of the possession was not adverse. It will be repolicy of insurance which he now has, and a membered that Edward Tull devised his unsufficient sum be taken from the annual re-divided half of the ferry to his wife, Mary ceipts of the ferry to pay the annual premi- Ann, for life, while the remainder of the fee ums before net proceeds be declared." On passed to complainants. Mary Ann sold and the 20th day of June, 1853, the executors of conveyed this life-estate to Beard in 1849. the estate of Beard, by deed of that date, con- Beard held under this title until his death, veyed to the six children of said Beard all the and Jones & Thompson, who subsequently interest Thomas Beard had in the ferry, and acquired Beard's title, held under the same the lands in Beardstown and in Schuyler title, and the defendant occupies under the county belonging to the ferry, with all boats same title. The various deeds and wills were belonging thereto. It also appears that the upon record, so that each purchaser had nointerest acquired by the six heirs of Beard by tice of the title under which he occupied the mesne conveyances passed to the defendant property. Until the termination of the lifein the bill, Addie Rohn. It also appears that estate by the death of Mary Ann Tull, which Thomas Beard, and those claiming under him, did not occur until 1886, the complainants, have held possession and have operated the as remainder-men, had no right of entry, as ferry from the time Mary Ann Clendenning they had no right to the possession until the conveyed in 1849 down to the present time. death of the life-tenant; and until the death It also appears that Mary Ann Clendenning of the life-tenant the statute could not begin died on the 17th day of August, 1886. On to run. It is a plain proposition, as held in the hearing the circuit court found in favor Higgins v. Crosby, 40 Ill. 260, that the statof complainants, and, without appointing ute does not run against a reversioner or recommissioners to make partition, ordered and mainder-man during the existence of the prior decreed that the property be sold. To re-estate, because during that time he has no verse this decree the defendants in the bill ap-right of entry. pealed. It is first claimed that a ferry is but a franchise, and is in no respect real property, and a bill for partition will not lie. The privilege of establishing a ferry, and taking tolls for the use of the same, is a franchise. 3 Kent, Comm. 458. The same author says, (page 459:) "An estate in such a franchise and an estate in land rest upon the same principle, being equally grants of a right or privilege for an adequate consideration." In Dundy v. Chambers, 23 Ill. 369, the question arose whether a ferry franchise is embraced By an act of the general assembly of the state of Illinois, approved February 26, 1867, the transfer of the ferry property from Beard to Jones & Thompson was confirmed, and the title of Jones & Thompson in the same was declared to be absolute and perfect, with full power to sell and convey, which act took effect from its passage. This act could not affect complainants' title. It merely confirmed in Jones & Thompson such rights as they had acquired under the purchase. The legislature had no power to divest complainants' title, if an attempt had been made to do |