tion may continue to exercise all rights, pow-| whose benefit is this contract made? (Give ers, and privileges conferred by this act, or relationship of beneficiaries, and full name,)" its articles of incorporation, not inconsistent and the answer, "Myself." The only doubt herewith, the same as if reincorporated here- as to the construction of the contract is creunder." This section gives existing corpora- ated by the words of the policy in the printed tions all the benefits of the statute, without blank, where the agreement of the corporatheir taking formal action of any kind, or tion is to pay "to the executors or adminismaking any change, further than may be trators of said members, in trust, however, necessary to comply with the requirements of for, and to be forthwith paid over to his the act as to their management, and the heirs at law." The chief purpose of this transaction of their business. It includes language is to state the undertaking of the all corporations coming within the definition corporation, and that is fully accomplished contained in the first section. before the words "in trust" are reached. The final clause is a statement of the existence of a trust which is supposed to have been created by the designation of the insured in his application. In the present case these words are in direct conflict with the statement of ownership in the written portion of the contract, and it seems likely that they were inadvertently left in the printed blank.. Under this statute there can be no doubt that a corporation may insure an applicant for his own benefit, and that in such a case the proceeds of the policy, after his death, will go to his executor or administrator, for the benefit of his estate. The provisions of sections 10 and 11, which forbid insurance for the benefit of persons who have no interest in the insured life, and exempt from attachment the money to be paid under the policy, are not inconsistent with this construction. The limitations of St. 1874, c. 375, and of St. 1877, c. 204, § 1, (Pub. St. c. 115, § 8,) as interpreted in American Legion of Honor v. Perry, 140 Mass. 580, 5 N. E. Rep. 634, and in Daniels v. Pratt, 143 Mass. 216, 10 N. E. Rep. 166, are not applicable to a policy issued under this statute. The next question in the case is whether the policy before us was so issued. The corporation which issued it was organized in 1878, under the provisions of the Acts of 1874, c. 375, and St. 1877, c. 204. It never had any by-laws in relation to the contracts between it and its members. There is nothing to indicate that it belonged to either of the classes of organizations excepted in section 1 of the statute we have been considering. On the contrary, there are indications in the policy and in the application, which fairly show, in connection with the report, that it belonged to neither of those classes. The sixth of the rules and conditions contained in the policy provides for the accumulation "of the emergency fund required by the laws of this commonwealth," and shows that the corporation was acting under this statute, in compliance with the provisions of section 8. In other particulars, the policy is made to conform to the requirements of the chapter, and the contract must be deemed to have been made by a corporation doing business with the enlarged powers conferred by recent legislation. Construing the policy under the statute of 1885, it remains to inquire whether it provides a fund for the heirs of the insured, as individual beneficiaries, or for his estate, to be disposed of under the will. The statute permits parties to make a contract in either form. What was their intention, as shown by their language? By the first clause of the conditions of the policy the application is expressly made a part of the contract. In the application, we find the only specific provision as to ownership in the question, "For In the absence of anything else to show an intention to make his heirs beneficiaries, we are of opinion that the words referring to a trust must yield to the language of the application, and that the proceeds of the policy must be administered as a part of the estate of the insured, under his will. Decree affirmed. (150 Mass. 122) COMMONWEALTH V. HAM. (Supreme Judicial Court of Massachusetts. Essex. Nov. 18, 1889.) INTOXICATING LIQUORS-EVIDENCE-APPEAL. icating liquors, it is competent, for the purpose 1. On a prosecution for illegally keeping intoxof showing the intent with which the liquor was kept, to prove that defendant's employe was seen with a jug in the building, running from an officer; session of the same employe, had been seen delivthat a team, often about the premises, and in posering jugs in places where liquors were sold; that jugs bearing defendant's name were afterwards fendant's name and driven by his employes, were found in these places; that beer teams, bearing deseen about town, delivering jugs; and that in one instance a similar team, with jugs therein, was seen, driven by defendant himself. 2. Erroneous admission of evidence is no ground of exception, where the court, before verdict, announced that it should exclude the evidence from the case, and should instruct the jury to disregard it, and defendant consented to a verdict of guilty. Exceptions from superior court, Essex county; EDGAR J. SHERMAN, Judge. George W.Ham, convicted of illegally keeping intoxicating liquors, brings exceptions. A. J. Waterman, Atty. Gen., and H. A. Wyman, Asst. Atty. Gen., for the Commonwealth. Brickett & Poor, for defendant. DEVENS, J. It may well be doubted whether, when a party consents to a verdict of guilty, he does not waive all objections, and whether he is not precluded from prosecuting his exceptions to rulings upon questions of evidence. Without, however, discussing this, it is quite clear that the defendant could not thus prevent the court from withdrawing from the jury evidence which, on reflection, it deemed should not be considered. The court E. L. Barney, for plaintiff. W. C. Parker, for defendant.. having announced before the verdict that it Action of contract by Simeon Folsom should exclude from the case the declaration against Pardon Cornell. Plaintiff recovered made by the workman Brown, and should judgment in the district court for a portion instruct the jury to disregard it, the defend- only of his claim, and both parties appealed ant has no ground of exception on that ac- therefrom. After trial in the superior court count, even if it was originally erroneously defendant moved to dismiss the appeal for admitted. Whitney v. Bayley, 4 Allen, 173; want of jurisdiction, as it appeared that plainSmith v. Whitman, 6 Allen, 562. It was im- tiff's appeal-bond was not filed within the portant to show the intent with which the time required by law. The motion was deintoxicating liquor which, the evidence nied, and judgment was entered for plaintiff. tended to show, was found concealed in de- Defendant excepts. fendant's bottling establishment-was kept. As bearing upon this, the evidence was competent that an employe of defendant had been seen with a jug in the building, running from an officer; that a team often about the defendant's premises, and in possession of the same employe, had been seen delivering jugs at divers places where liquors were sold; and that afterwards there were found in these places jugs, containing intoxicating liquor, bearing defendant's name on cards thereon; that beer teams having defendant's name were seen about town, delivering jugs, and driven by his employes; and that in one instance a similar team, with jugs therein, was seen, driven by defendant himself, about the town. If satisfactory to the jury on this point, it was competent to warrant a verdict against the defendant. Exceptions overruled. (150 Mass. 115) FOLSOM V. CORNELL. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 13, 1889.) ACTION-RESCISSION OF SALE-VERDICT-APPEAL. 1. Where plaintiff sells and delivers lumber to defendant, and by mutual consent the contract is rescinded, and the lumber left in defendant's possession until it is convenient for plaintiff to remove it, and defendant uses some of the lumber, an action of contract for goods sold and delivered will not lie. C. ALLEN, J. The testimony of the plaintiff, if believed, was sufficient to show a completed sale and delivery of the property to the defendant at the outset, so that the jury might properly find that the plaintiff was entitled to recover upon the original contract of sale, unless there was an effectual rescission. There are several decisions to the effect that upon a rescission the same formalities must be observed in respect to delivery, in order to revest the title in the original vendor, as are necessary upon an original sale in order to vest the title in the vendee. Miller v. Smith, 1 Mason, 437; Quincy v. Tilton, 5 Me. 277; State v. Intoxicating Liquors, 61 Me. 520. See, also, Beecher v. Mayall, 16 Gray, 376. Assuming that to be so, we are to consider whether enough was done in the present case to revest the title in the plaintiff. The question arises between the parties themselves. No rights of attaching creditors or subsequent bona fide purchasers are involved. Whether the title revested in the original vendor depends on the intention of the parties, and this intention is ordinarily to be determined by a jury, unless it appears that the evidence would justify a finding but one way. Bank V. Bangs, 102 Mass. 291, 295, 296. So the question upon this part of the case comes to this: Would the evidence warrant a finding by the jury that there was not a completed rescission of the original sale? We are constrained to hold that it would not. The testimony of the plaintiff himself was as follows: "It was finally agreed between the parties that the plaintiff was to take the furring away, and the bill rendered was destroyed, and a new bill made for the laths only, which new bill was then paid by the defendant." "It was agreed that the furring 4. Pub. St. Mass. c. 155, § 29, chapter 154, § 52, on the Kilbourne lot was to be taken away and St. 1882, c. 95, § 1, require that on an appeal soon, but that that at the farm, being under in a civil action a bond shall be filed within 24 hours after the judgment, unless further time is cover, could remain longer if the plaintiff degiven. In such action defendant appealed from sired; that the plaintiff thereafter sold the the district court, and time was given for filing his furring to Tillinghast & Terry." The report bond. Plaintiff afterwards appealed, and filed a states that evidence was afterwards introbond within the time allowed defendant therefor, but it did not appear that such time was expressly duced by the plaintiff tending to show that granted to plaintiff. Defendant took no further Tillinghast & Terry bought the whole of the steps, and appeal was entered by plaintiff. The case was tried without objection from defendant, but, after verdict for plaintiff, defendant raised the objection that the bond was not filed within the time required by law Held, that the superior court properly refused to dismiss the appeal. Exceptions from superior court, Bristol county. 2. In an action for the contract price of lumber plaintiff testified that he sold it to defendant, and afterwards it was agreed that he should take the lumber away, and the bill therefor was destroyed. He was to take part of it soon, but the balance could remain longer if he desired. Thereafter he sold it to a third party. Defendant testified that it was mutually agreed that the contract should be rescinded and the lumber taken away, but that it might remain a reasonable time. Nothing appeared to the contrary. Held that, as between the parties themselves, the title immediately revested in plaintiff. 3. A verdict in an action tried on the issue of contract cannot be saved by an amendment thereafter, adding a count in tort for conversion. v.22N.E.no.20-45 furring which had been delivered to the defendant. The defendant testified that it was "mutually agreed that the contract should be rescinded, and the furring taken away by the plaintiff, that on the Kilbourne lot right away, and that on the farm within a reasonable time." There being nothing to vary the effect of this evidence, it conclusively appears | not tried upon the issue of conversion, and that the parties intended and understood that we must assume that the instructions to the the title to the furring should revest at once jury were not adapted to that issue. While, in the plaintiff, and that the plaintiff acted therefore, the amendment might properly be upon this understanding by proceeding to sell allowed, its allowance cannot have the effect the furring to other purchasers. It simply to save the verdict. remained in the possession of the defendant, for the time being, on storage, as it were. It has often been held, both in this state and elsewhere, that under such circumstances, and as between the parties themselves, no actual or other delivery is necessary, upon a sale, to vest the title in the purchaser. Frazier v. Simmons, 139 Mass. 531, 2 N. E. Rep. 112, and cases there cited; Philbrook v. Eaton, 134 Mass. 398; Sherwin v. Mudge, 127 Mass. 547; Townsend v. Hargraves, 118 Mass. 325, 332; Turner v. Langdon, 112 Mass. 265; Weld v. Came, 98 Mass. 152; Meyerstein v. Barber, L. R. 2 C. P. 38, 51; Castle v. Sworder, 6 Hurl. & N. 828. The defendant further contends that the superior court had no jurisdiction of the action, because the plaintiff's bond, upon the appeal from the judgment of the district court, was not filed in season. The statutes require that such bond shall be filed within 24 hours after the judgment, unless further time is given. Pub. St. c. 155, § 29; chapter 154, § 52; St. 1882, c. 95, § 1. It has been heretofore determined, from reasons of public policy, that the statutory requirement of a bond, instead of a recognizance, must be complied with, and cannot be waived, (Stantom v. Ballard, 133 Mass. 464,) and that the bond must have a surety, (Henderson v. Benson, 141 Mass. 218, 5 N. E. Rep. 314;) but other defects in the bond have been held not to be fatal unless seasonably objected to. (Manu Upon the undisputed facts, therefore, there appears to be no escape from the conclusion that the title to the furring revested in the plaintiff, and if the defendant afterwards ap-facturing Co. v. Burlingham, 137 Mass. 581.) propriated any part thereof to this own use, In the present case the bond was in proper it was not under his purchase, but it was a form, and had two sureties, who were duly conversion. There is no suggestion of any approved. It also appears by the certificate, subsequent contract between the plaintiff and which takes the place of a record of the prothe defendant in relation to it, after the re-ceedings before the district court, that judgscission, and the circumstances stated nega- ment was rendered for the plaintiff for tive any inference of an assent on the part of $31.65 on the 26th of March, 1888; that the the plaintiff to the defendant's appropriating defendant appealed, and had until April 1, it to his own use, since he had sold it to other 1888, to file a bond; and that the plaintiff purchasers, and no longer had a right to as- also afterwards appealed. But there is no sent to such appropriation, and an action of memorandum that an extension of time for contract could not be maintained unless the filing his bond was given to him. He, howfurring was afterwards sold by the defend- ever, filed his bond on March 31, 1888, and ant, in which case the plaintiff might have an it was approved, apparently, on the same day; action of money had and received for the pro- and this was before the time had expired ceeds. Ladd v. Rogers, 11 Allen, 209; Cooper within which the defendant might file his v. Cooper, 147 Mass. 370, 373, 17 N. E. Rep. bond. This being done, the defendant took 892. In no event could an action for goods no further steps, and the plaintiff entered sold and delivered be maintained, because the the appeal, and the case in due time proceedonly sale which there ever was had been re-ed to trial before the jury without objection scinded. from the defendant, and, after the verdict When this question arose at the trial, the against him, he for the first time raised the plaintiff did not desire to amend his plead-objection to the want of a seasonable filing ings, and the case was submitted to the jury of the plaintiff's bond. Where there is an upon the declaration for goods sold and de-appeal by both parties, the fact is stated in livered; and the jury found for the plaintiff. The instructions to the jury are not given, and we have no means of knowing what rule of damages was applied. If the verdict rested on the only contract of sale which was ever made by the plaintiff to the defendant, the measure of damages must have been either the price agreed or the reasonable value of the furring at that time. After the verdict, the plaintiff, by leave of court, filed a count in tort for the conversion, and now contends that this will support the verdict. The difficulty in acceding to this view is that the quantity of furring which was appropriated by the defendant to his own use, if any, may have been different from that which was the subject of the sale, and the measure of damages would also be different, being the value at the time of the conversion. The case was the record; but both appeals need not be separately entered and prosecuted. Davidson v. Railroad Co., 3 Cush. 91, 101. See, also, Shattuck v. Woods, 1 Pick. 171, 176, note, 3 Pick. 267. Upon the trial of the appeal by either party the whole case is open and tried anew; and in the present case the defendant had the same benefit of a new trial in the superior court that he would have had if he had taken all the requisite steps and entered his own appeal. It seems probable, also, that the district court may have considered that the extension of time granted to the defendant before the plaintiff claimed an appeal would also inure to the benefit of the plaintiff, since so soon afterwards the plaintiff's bond was approved without apparent question. It also seems probable that the defendant omitted to pursue his own appeal sworn to by the assured, shall be forthwith rendered to the company, setting forth the value of the property insured," etc. In the absence of any modification of this provision by the parties, or waiver of it by the company, a policy-holder, whose property has been burned, is "required by law" to make such a statement, under oath, before he can maintain a suit to recover for his loss. The policy referred to in the present case contained this provision; and, under the instructions of the judge, the jury must have found that there was no waiver of it. because he found that he would get the same |ing business in this common wealth, and rebenefit from the plaintiff's appeal as from his quires a provision in the policy that in case own, and it would be no violent strain to in- of loss "a statement in writing, signed and fer his assent in the district court to the plaintiff's filing the bond as he did, for the very reason that thereby further steps by himself would become unnecessary. Under these circumstances the case bears some resemblance to Granger v. Parker, 142 Mass. 186, 7 N. E. Rep. 785, where we held that a party who had had the benefit of an appeal taken by himself could not, after judgment rendered, be heard to object that there was a want of jurisdiction by reason of his own failure to comply with the formal requirements of the statute, and that the sureties upon his bond were also precluded. In the present case the plaintiff and his sureties would be bound upon their bond, and the superior court might properly determine to take jurisdiction of the appeal under the circumstances stated. We cannot say that such determination was unwarranted. Exceptions sustained. (150 Mass. 160) AVERY v. WARD. (Supreme Judicial Court of Massachusetts. What interpretation should be given to the words "required by law," in the statute first quoted, is a question by no means free from difficulty. It has been said that the provision "might seem, from its very general language, to embrace all cases where an oath had been lawfully administered in the execution of official duty." Jones v. Daniels, 15 Gray, 438. But in the same case it is suggested that the language of the original statute, from which it is derived, (St. 1830, c. 56,) seems to have had reference to oaths required by special provisions of statute. Both of these remarks were entirely outside of the question involved in the case then decided, and we are not aware that the statute has ever been before the court for construction. The fact that in so general a revision of our laws as that of 1835 the language was considerably changed, and the further fact that the law has been twice re-enacted in substantially the form in which it was put in that revision, make the original statute of less importance than might otherwise be attached to it. Rev. St. c. 128, § 2; Gen. St. c. 163, § 2; Pub. St. c. 205, § 2. The oath referred to in the This was an action by James D. Avery plaintiff's declaration was essential to the against Jesse M. Ward, for slander, in charg-preservation of the legal rights of the asing that plaintiff had endeavored to induce sured. Although not taken "in any proceedone Peter Borlin to commit the crime of per- ing in the course of justice," so that, if false, jury, in swearing to a false statement of loss it would have subjected the affiant to punishunder a fire insurance policy. There was ment for perjury at the common law, or unjudgment for plaintiff, and defendant ex-der section 1, c. 205, Pub. St., it was within cepts. Under St. Mass. 1887, c. 214, § 60, prescribing the form of policy to be used by fire insurance, and requiring a provision therein that in case of loss "a statement in writing, signed and sworn to by the assured, shall be forthwith rendered to the company, setting forth the value of the property, the oath taken by the policy-holder, in pursuance of such provision in his policy, is one "required by law," within the meaning of Pub. St. c. 205, § 2, defining perjury as the willful false swearing in regard to any matter respecting which an oath is required by law. Exceptions from superior court, Franklin county; JUSTIN DEWEY, Judge. S. T. Field, for plaintiff. Conant & Conant, for defendant. KNOWLTON, J. The principal question in this case is whether the oath taken by a policy-holder to the truth of a statement in writing, setting forth the particulars of a loss under his policy of insurance against fire, is an oath "required by law," within the meaning of Pub. St. c. 205, § 2. This section is as follows: "Whoever, being required by law to take an oath or affirmation, willfully swears or affirms falsely in regard to any matter or thing respecting which such oath or affirmation is required, shall be deemed guilty of perjury." The statute of 1887, c. 214, § 60, which follows closely Pub. St. c. 119, 139, prescribes the form of policy to be used by all fire insurance companies do the reason of the rule of the common law; for it was taken in a preliminary proceeding, which lay at the foundation of proceedings in court, and which would be subject to review in these proceedings. It was required under a contract which embodied the requirement, in conformity with an express provision of the law. We think the spirit and purpose of the statute will best be conserved by so construing it that the requirement in the present case shall be deemed to have been a requirement "by law;" such that it would have subjected the assured to punishment for perjury, if he had willfully sworn falsely. The words alleged to have been spoken of the plaintiff were sufficient to impute to him the crime of attempting to induce and incite Borlin to commit the crime of perjury. Such a crime could be committed by the use of words alone. Exceptions overruled. (150 Mass. 143) ADAMS et al. v. MORGAN et al. 1. A. executed to plaintiffs a deed of land on which there were incumbrances, which the deed stipulated plaintiffs should assume, and deposited the deed with P., to be delivered to plaintiffs at A.'s death, unless A. should previously withdraw it, and one of the plaintiffs deposited with P. a note which she held against A., at the same time entering into an agreement with A. in writing, which recited that, it being understood that plaintiffs were to have a warranty deed from A., etc., the note was to be canceled when the deed should be delivered. Held, that it was competent to introduce parol evidence of the facts to show that the deed referred to in the written agreement was the deed which A. had deposited with P 2. In this case the court properly refused to allow one of the plaintiffs, a grantee in the deed, to testify as to what the grantor, since deceased, had, at different times before and after making the written agreement, said to her in regard to his purpose to give her a clear title, etc. Reserved case from supreme judicial court, Franklin county. F. P. Goulding and F. G. Fessenden, for plaintiffs. W. S. B. Hopkins, J. A. Aiken, S. D. Conant, J. C. Hammond, and H. P. Field, for defendants. for $1,931 against Peleg Adams, which it was her official duty to collect for the benefit of herself and her children. On May 19, 1882, the writing set out in the plaintiff's bill was signed by the parties, and that and the note were "given to Packard under an agreement that he should put them with the deed, and keep them all together, and that if she wanted the note at any time she might have it, and if Peleg Adams wanted the deed at any time he might have it. Peleg Adams offered to show her the deed, but she said she did not care to see it." It was distinctly arranged that she should keep the note alive, and not let it outlaw, and for that purpose, about five years afterwards, she collected a payment upon it. In the light of these facts, so far as they are competent to be considered, we are to interpret the writing set out in the bill. It seems to have been the purpose of the parties in executing the writing to make an agreement in regard to the note, in view of their understanding and expectation as to the deed of the real estate. Both knew that Packard held a deed from Peleg Adams, running to the plaintiffs as grantees. Both knew that that deed might or might not become operative; for Peleg Adams had delivered it subject to a KNOWLTON, J. The plaintiffs insist that the right to withdraw it at any time during his writing which the bill was brought to enforce life, and it was stated when they were all tois on its face a contract for the sale of real gether that if he wanted the deed at any time estate by a warranty deed in consideration of he might have it, as she might have her note the cancellation of a promissory note for $1,- at any time if she wanted it. We under931, and that no evidence can be introduced stand this statement to have meant that to show that it is anything else. But it is either party was at liberty at any time to familiar law that in interpreting contracts it withdraw the paper that he or she had deis always proper to put ourselves in the situ- posited, and that thereupon the arrangement ation of the parties so far as to understand the would be terminated. But in view of her subject-matter to which the contract relates. expectation that the deed would at some futOftentimes this involves knowledge of the ure time come into her possession she seems circumstances under which the contract was to have been willing to forego collection of made, and of facts not referred to in it, which the note, (apparently in accordance with his may be supposed to have been in the minds wish,) and to leave it in Packard's hands, to of the parties when they made it, and which be kept alive there until it should be known throw light upon its meaning. It appears in whether she was to have the deed. So they the present case that Peleg Adams owned the made a voluntary arrangement, which was mansion-house property, worth about $80,- not binding for the future, but was subject 000, on which were mortgages amounting to to be terminated by either of them, that the $50,000, and that before the death of his son, note should remain in Packard's hands, and John A. Adams, he made and deposited in the deed should also remain there until one the hands of the defendant Packard a war- or the other should see fit to terminate the ranty deed of it, subject to two mortgages, arrangement,—she by withdrawing her note, which the grantee was to assume, to be de- or he by withdrawing the deed, or until the livered after the grantor's death unless it arrangement should be terminated in accordshould previously be withdrawn from Pack-ance with the expectation of both parties by ard's possession. After John A. Adams' a delivery to her of the deed. In view of this death Peleg Adams obtained this deed from understanding, which did not affect the rights Packard, and made and deposited with him of either party, but left Peleg Adams' rights another like it, except that it ran to the and Packard's duties in relation to the deed plaintiffs, the widow and children of John precisely as they were before, they made an A. Adams, to whom the deed was to be de- agreement in writing to fix their rights in livered after the grantor's death unless it relation to the note so long as the arrangeshould be recalled and taken out of Packard's ment should continue. Without reciting the hands before that time. The plaintiff Char-details they stated that they "understood" or lotte E. Adams knew that a deed of that kind was in Packard's possession, but she did not know its provisions. She held, as administrator of her husband's estate, a note expected what would occur under the arrangement, and named that as an inducement to a contract in regard to the note, and they then stipulated that the note should remain in fuli |