INDEX.

ABATEMENT.

Appeal from decree of Probate Court that petitioner is living apart from her husband for justifiable cause does not abate on death of petitioner, testate, see HUSBAND AND WIFE, 2.

ACTIONABLE TORT.

Action of tort not proper remedy for acts done in laying out street under defective order, see WAY, 13, 14.

Quare, whether under any circumstances false representation as to present intention can support action for deceit, see DECEIT.

For false representation by agent as to kind of purchaser for whom acting, constituting actionable fraud, see EQUITY JURISDICTION, 3.

Breach of contract does not become tort because committed with fraudulent intent, see FRAternal BenefICIARY ASSOCIATION, 2.

ADVERSE POSSESSION.

Of strip of land enclosed by fence with adjoining house and lot, see DISSEISIN, 1, 2.

Evidence of nature of adverse use, see EASEMENT.

AGENCY.

1. A broker, employed to sell certain real estate and discharged by his principal after failing to sell it, is not entitled to a commission on a subsequent sale of the property through another broker to a purchaser from whom the first broker had procured an offer which was not accepted. Leonard v. Eldridge, 594.

2. In an action by a farmer against a milk dealer for milk sold and delivered, it appeared, that the milk was put into cans furnished by the defendant and was collected from the plaintiff and other farmers by a teamster, who was paid by the defendant a fixed price for the transportation of each can, which was deducted from the sum agreed to be paid to the farmers. The teamster made his own arrangement with the farmers for the sum per can

Agency (continued).

to be paid for the transportation. Each month a pass book was furnished by the defendant to the teamster, in which he recorded daily the number of cans of milk furnished by each farmer, and at the end of each month forwarded the book to the defendant. Certain of these pass books were admitted in evidence against the objection of the defendant. Held, that if, as seemed, the teamster was paid both by the plaintiff and the defendant, he was their common agent and the pass books were admissible against either. Copeland v. Boston Dairy Co. 207.

Liability of principal for false and fraudulent representations of agent made without knowledge of principal, see EQUITY JURISDICTION, 3.

Principal cannot vary by oral evidence, terms of sale note made by broker having authority, see EVIDENce, 14.

Agency of bank as to payment from depositor's account, of depositor's note sent to bank for collection, see BILLS AND NOTES, 8.

APPEAL.

Effect of appeal to Superior Court from decree of Probate Court ordering separate maintenance of wife, and of death of wife pending such appeal, see HUSBAND AND WIFE.

ARREST.

Existence of oath or affidavit justifying certificate of arrest on execution assumed, see Poor Debtor, 4.

ASSIGNMENT.

1. When a contract to do work for a city is assigned as a whole after a part performance, the assignment includes all sums due for work previously done under the contract which have been retained by the city to ensure performance. Chapin v. Pike, 184.

2. An assignment of an unpaid balance due under a contract with a landowner for building a stable is not an assignment of future earnings, required by R. L. c. 189, § 34, to be recorded, to be valid against a trustee process, if the contract has been substantially performed and the landowner has accepted the stable, it having been completed with the exception of inserting a faucet for washing carriages, for which the owner has not designated the place, and some window fastenings of trifling value. Allen v. Mayers, 486.

What necessary to show novation, in action against assignee of contract, see CONTRACT, 3.

ATTACHMENT.
Of Chattels.

The provision of R. L. c. 167, § 70, that an attachment of mortgaged personal property shall be dissolved if the amount secured by the mortgage is not paid within ten days after demand, applies only to a valid mortgage, and in an action against the attaching officer for an alleged conversion of the mortgaged goods where no such payment was made, the officer can

show that the mortgage was voidable by attachment. Fletcher v. Wrighton,

517.

Proof by officer of lawful attachment in answer to alleged conversion, see
EXECUTION.

ATTORNEY.

A contract by an attorney at law to prosecute an action for two thirds of the
proceeds, with no indication that there is to be any compensation in case
of failure, and where in case of success a debt for services is not in the
contemplation of the parties, is void for champerty. Gargano v. Pope, 571.
For suit in equity to set aside contract void for champerty, see EQUITY
JURISDICTION, 7-9.

AUCTION.

As to what is sale by auction and as to fictitious bids, see INSOLVENCY, 1-3.

AUDITOR.

Plaintiff has right to become nonsuit after hearing before auditor and before
report filed, see PRACTICE, CIVIL, 9.

BANK.

A trust company receiving a sum of money as a deposit for a person in
another city with a request to notify that person by telegraph that the
sum has been placed to his credit, if it credits the deposit and sends the
telegram as requested, establishes the relation of banker and depositor,
and can discharge its obligation only by paying the amount to or upon the
order of the person to whom it is credited or his authorized agent. Heath
v. New Bedford Safe Deposit, etc. Co. 481.

What constitutes payment from depositor's account, of depositor's note sent
to bank for collection, see BILLS AND NOTES, 8.

BANKRUPTCY.

1. Under the bankruptcy act of 1898, if the holder of an unrecorded chattel
mortgage, made two years before the bankruptcy of the mortgagor when
he was not insolvent, first takes possession of the mortgaged property three
weeks before the filing of the petition in bankruptcy, the mortgagor then
being insolvent and the mortgagee having reasonable cause to believe him
insolvent, the transfer dates from the time of taking possession and is
voidable as a preference. Tatman v. Humphrey, 361.

2. Under the bankruptcy act of 1898 an adjudication in bankruptcy and the
appointment of a trustee vest the title to the bankrupt's property in the
trustee, and are a defence to an action of contract by the bankrupt pending
at the time of the adjudication, unless it appears affirmatively that the
action is being prosecuted by the trustee, or that the trustee has elected
not to assume it. In order to prove an election by acquiescence, it is
necessary to show the trustee's knowledge of the action, and such knowl-
VOL. 184.

39

Bankruptcy (continued).

edge cannot be inferred from the fact that the action was pending in a
court of general jurisdiction. Atwood v. Bailey, 133.

3. An insurance policy on property of a bankrupt, containing the usual
clause requiring the written consent of the insurer in case of assignment,
is property which prior to the filing of the petition the bankrupt could
have transferred within the meaning of § 70 of the bankruptcy act of
1898, and vests in the trustee in bankruptcy upon his appointment and
qualification. Fuller v. New York Fire Ins. Co. 12.

4. One holding a fire insurance policy filed a voluntary petition in bank-
ruptcy and was adjudicated a bankrupt. A week later a receiver of his
estate was appointed and afterwards on the same day the insured property
was destroyed by fire. Six weeks later a trustee in bankruptcy was ap-
pointed who brought an action on the policy. The defendant contended
that the bankrupt had ceased to have an insurable interest in the property
at the time of its loss, and also that by the petition and adjudication the
property was assigned without the assent of the insurer. Held, that the
title to the property remained in the bankrupt until its destruction by
fire when a right of action vested in the bankrupt which passed to the
trustee upon his appointment and qualification. Ibid.

As to rights of trustee in suit to set aside fraudulent conveyance made by
bankrupt, see EQUITY JURISDICTION, 4-6; EQUITY PLEADING AND PRAC-
TICE, 6.

BILL OF LADING.

As to stowing oiled clothing on deck as "inflammable goods" within terms
of bill of lading, see CARRIER, 1, 2.

BILLS AND NOTES.

1. One ratifying a signature on a promissory note
which he knows to be forged is bound by it.
Copp, 328.

purporting to be his and
Central National Bank v.

2. An instrument, which by its true construction is an unconditional order
to pay a certain sum of money at a fixed future time to the payee or order,
is a bill of exchange under R. L. c. 73, § 18. Torpey v. Tebo, 307.
3. In an action on a note payable absolutely, evidence is not admissible to
prove an oral agreement that the maker of the note was not to pay it
unless he received the amount of the note from another person. Ibid.
4. If the drawee who has written his name on the back of a draft, on its
presentation to him as acceptor for payment, asks for time, and by agree-
ment with the holder gives his promissory note payable at a future day
for the amount of the draft, the note is founded on a good consideration
whether or not the maker previously was bound as acceptor of the draft.
Ibid.

5. The surrender of an overdue note, the indorser of which has been dis-
charged from liability by want of notice of non-payment, is a good con-
sideration for a new note given in part payment of the old one and signed
as joint maker by the indorser of the old note, and in an action against
such joint maker it is immaterial that he was not liable on the old note

and received no personal benefit from signing the new one, if the plaintiff ·
gave up the old note relying on his signature. Nashua Savings Bank v.
Sayles, 520.

6. A bank in New Hampshire, holding an overdue note made and indorsed
in this Commonwealth, asked the maker for a new note with the same
indorser to take up the old one. The maker sent a new note for a smaller
amount with a check for the balance, whereupon the bank returned the
old note to the maker. The new note was inade payable at the bank in
New Hampshire and on the back was signed in blank by the indorser of
the old note. Under the laws of New Hampshire a person so signing was
liable as a joint maker without a demand on the other maker or a notice
of his default. Held, that the new note first took effect as a contract
when accepted with the check in payment of the old note, and was gov-
erned by the law of New Hampshire. Whether, if the new note had been
for the full amount due on the old one, the fact that it was made payable
in New Hampshire would have made it subject to the laws of that State
was not considered. Ibid.

Payment.

7. A married woman, to shield her husband, ratified a signature on a promis-
sory note to a bank, purporting to be hers but forged by her husband.
At maturity the note was surrendered to the husband on his giving in
renewal a note similarly forged which was accepted in good faith by the
bank. In an action by the bank on the first note, it was held, that the
substitution and acceptance of the second forged note did not constitute a
payment, so as to bar an action on the note ratified by the defendant.
Central National Bank v. Copp, 328.

8. Where a bank receives from another city for "collection and remittance"
a note of one of its depositors payable at that bank and properly indorsed,
having authority to pay notes of the maker out of his deposit when made
payable there, and at the maturity of the note, after writing a check
on a bank in the other city for remittance of the amount, stamps on
the face of the note the word "Paid" with the date, cancels the note by
perforation, and files it with the paid checks, this constitutes payment
of the note as against an assignee for the benefit of creditors of the maker
who gives notice to the bank by telephone of the assignment before the
transaction has been entered on the permanent books of the bank and
before the letter of remittance has been mailed. Nineteenth Ward Bank
v. South Weymouth Bank, 49.

Competency of evidence on question whether certain payments were to be
applied on note, see EVIDENCE, 6.

BOND.

As to action on executor's bond, see EXECUTOR AND ADMINISTrator, 1-3.
As to action for accepting insufficient sureties on replevin bond, see OFFI-
CER, 1.

R. L. c. 149, § 1, does not require bond from manager of charitable fund
created by will, see CHARITY, 5.