corner of the watch-house. Witness went to the place, put his hand in, and said, "Here is the bag," the defendant being on the stairs, going down cellar; Russell immediately said, "That is my bag;" witness counted the money-defendant then standing in the watch-house-and Russell said, "That was all the money I had in the world." The declarations were admitted, defendant objecting, and the prisoner found guilty.

Whitman, for the defendant.

Parker, for the commonwealth.

By Court, SHAW, C. J. The defendant was indicted for stealing money and a bag, the property of Barzillai Russell, from the person of said Russell. The averment of the fact of stealing, and that the money was the property of Russell, were material averments. Russell was not called as a witness, doubtless because he could not be found. But evidence was offered to show that declarations were made at the watch-house, by Russell, in the presence and hearing of the defendant, in regard to the theft, to which the defendant made no reply. This evidence was objected to by the defendant, but was admitted by the court; and this is the ground of exception.

One of the specific grounds on which this exception was placed, we think, is not tenable; namely, that the testimony of Russell was the best evidence, and that the defendant was entitled to it, with the right of cross-examination. The testimony of the person robbed is not necessary evidence, nor are other kinds of evidence, if sufficient to establish the necessary averments, secondary proof. The evidence, if competent at all, was competent on the ground of admission by the defendant, which, though often slight as to weight, is not secondary. But on another ground, we take a different view of the admissibility of the evidence, depending on the question, whether the statements of Russell in the hearing of the defendant, and the silence of the latter, do amount to a tacit admission of the facts stated. It depends on this: If a statement is made in the hearing of another, in regard to facts affecting his rights, and he makes a reply, wholly or partially admitting their truth, then the declaration and the reply are both admissible; the reply, because it is the act of the party, who will not be presumed to admit anything affecting his own interest, or his own rights, unless compelled to it by the force of truth; and the declaration, because it may give meaning and effect to the reply. In some cases, where a similar declaration is made in one's hearing, and he makes no

AM. DEC. VOL. XLVI-43

reply, it may be a tacit admission of the facts. But this depends on two facts; first, whether he hears and understands the statement, and comprehends its bearing; and secondly, whether the truth of the facts embraced in the statement is within his own knowledge, or not; whether he is in such a situation that he is at liberty to make any reply; and whether the statement is made under such circumstances, and by such persons, as naturally to call for a reply, if he did not intend to admit it. If made in the course of any judicial hearing, he could not interfere and deny the statement; it would be to charge the witness with perjury, and alike inconsistent with decorum and the rules of law. So, if the matter is of something not within his knowledge, if the statement is made by a stranger, whom he is not called on to notice; or if he is restrained by fear, by doubts of his rights, by a belief that his security will be best promoted by his silence; then no inference of assent can be drawn from that silence.

Perhaps it is within the province of the judge, who must consider these preliminary questions in the first instance, to decide ultimately upon them; but in the present case he has reported the facts, on which the competency of the evidence depended, and submitted it, as a question of law, to this court. The circumstances were such, that the court are of opinion that the declaration of the party robbed, to which the defendant made no reply, ought not to have been received as competent evidence of his admission, either of the fact of stealing, or that the bag and money were the property of the party alleged to be robbed. The declaration made by the officer, who first brought the defendant to the watch-house, he had certainly no occasion to reply to. The subsequent statement, if made in the hearing of the defendant (of which we think there was evidence), was made whilst he was under arrest, and in the custody of persons having official authority. They were made, by an excited, complaining party, to such officers, who were just putting him into confinement. If not strictly an official complaint to officers of the law, it was a proceeding very similar to it, and he might well suppose that he had no right to say anything until regularly called upon to answer. We are therefore of opinion that the verdict must be set aside, and a

New trial granted.

ASSERTIONS OF A THIRD PERSON CAN AFFECT A PARTY only on the ground of assent, either tacit or express, to the truth of the fact asserted: Craig v.

Craig, 24 Am. Dec. 390, and note; see, also, for admissions generally as evi dence, note to Richardson v. Richardson, 30 Id. 544.

THE PRINCIPAL CASE IS CITED to the point, that the rule in reference to a statement made in the presence of a defendant by third persons, to which no reply is made, is not admissible against him, unless it appears that he was at liberty to make a reply, and that the statement was made by such persons, and under such circumstances, as naturally to call for a reply, unless he intends to admit it, in Commonwealth v. Brown, 121 Mass. 80; Commonwealth v. Roberts, 108 Id. 301; Commonwealth v. Walker, 13 Allen, 571, a case almost identical with the principal case; Commonwealth v. Densmore, 12 Id. 538; Larry v. Sherburne, 2 Id. 36. And if defendant make a reply wholly or partially admitting the truth of the facts stated, both the statement and the reply are competent evidence: Commonwealth v. Brown, supra.

MALCOM V. SPOOR.

[12 METCALF, 279.]

OFFICER BECOMES A TRESPASSER AB INITIO who enters a house and attaches goods therein under his process, but takes with him a grossly intoxicated and clearly unfit person, and leaves him there as keeper against the owner's remonstrance.

TRESPASS. The opinion states the case.

By Court, SHAW, C. J. This was an action of trespass, in which the plaintiff declared against the defendant for breaking and entering her house, etc. The defendant justified under a writ directed to him, as constable, and commanding him to attach the plaintiff's household furniture. The case comes before us on exceptions, from which it appears that the defendant was a constable, and that he entered the plaintiff's house, having a writ against her, and attached her furniture; that he took with him into the house a man who was intoxicated, whom he made keeper of the attached furniture, and left in the house, in charge of the furniture, although the plaintiff objected to his remaining there as keeper, on account of his intoxication. The exceptions also set forth the violent conduct of the keeper; and other matters, which are not material to the decision of the question that is brought before us. The court of common pleas, in which the trial was had, instructed the jury, that if the defendant, under color of his process, took with him a grossly intoxicated and clearly unfit person into the plaintiff's house, and left him therein as keeper, this was such an abuse of his authority as made him a trespasser ab initio; and that the defendant was answerable for all the acts of such keeper, done in pursuance of previous coneert between them, or by direction of the defendant. A verdict

was returned for the plaintiff, and the question whether these instructions were right, has been submitted to us without argument.

It has been held as a rule of the common law, ever since the Six Carpenters' Case, 8 Co. 146, that where one is acting under an authority conferred by law, an abuse of his authority renders him a trespasser ab initio: Melville v. Brown, 15 Mass. 82. In the case before us, the defendant had authority by law to enter the plaintiff's house, to serve legal process; but placing there an unfit and unsuitable person, to keep possession of the attached goods, in his behalf, until he could remove them, against the remonstrance of the plaintiff, was an abuse of his authority, which rendered him liable as a trespasser ab initio. An officer can not legally stay in another's building, to keep attached goods therein, nor authorize any other person to remain therein, as keeper, for a longer time than is reasonably necessary to enable him to remove the goods, unless he has the consent, express or implied, of the owner of the building, without rendering himself liable as a trespasser. See Rowley v. Rice, 11 Metc. 337. Exceptions overruled.

ABUSE OF PROCESS RENDERS OFFICER TRESPASSER AB INITIO, WHEN: See Lamb v. Day, 30 Am. Dec. 479; Baumgard v. Mayor, 29 Id. 437; Barrett v. White, 14 Id. 352, and note 365 and 369, where the subject is discussed at length. The principal case is cited in Williams v. Powell, to the point that by an abuse of his authority under his process an officer becomes a trespasser ab initio.

THOMPSON ET AL. v. SHEPHERD.

[12 METCALF, 811.]

NOTE NEGOTIATED AFTER HAVING BEEN DISHONORED BY THE MAKER is subject to any defense in the hands of the indorsee that might have been made to it in the hands of the indorser.

RIGHT OF AN INDORSEE TO ENFORCE PAYMENT IS NOT AFFECTED BY THE FACT that as between the maker and the indorser the note was an aocommodation paper, even when known to the indorsee, if he received it before due and for a valuable consideration.

ASSUMPSIT on a promissory note signed by defendant and payable to Charles Beaumont, and indorsed by him to S. C. Bugbee, and by the latter to these plaintiffs. The defense was that the note was given by defendant to Beaumont, and by him indorsed to Bugbee, without consideration, and for the accommodation of Bugbee, and transferred by Bugbee, after it was due, to plaintiffs. The facts not appearing in the opinion are briefly

these: Beaumont sold defendant certain land, he agreeing that Beaumont should negotiate sales of it, and receive to himself what he could sell it for beyond the sum for which defendant had purchased it. He negotiated the sale of a parcel of the land to Bugbee, and defendant conveyed the parcel to Bugbee, taking back a mortgage to secure the purchase money; but before the making of the note, Beaumont had released defendant from his engagement so far as it concerned the lot sold to Bugbee. Beaumont owned a tract adjoining the lot sold Bugbee, and to induce him to make said purchase, and to build a house on said lot, Beaumont promised to lend him four hundred dollars to aid in building the house, to be repaid out of the proceeds of the sale of it. Bugbee would not have purchased without such promise. Bugbee, after he had begun to build the house, called on Beaumont for the money agreed to be loaned him. Beaumont, not having the money, said he would procure the note from defendant and let Bugbee have it instead of the money, which was done, and a receipt given agreeing to repay it out of the proceeds of the house and lot.

Hilliard, for the defendant.

Brooks, for the plaintiffs.

By Court, HUBBARD, J. The note declared on, having been negotiated by the indorser after it was dishonored by the maker, is subject to any defense, in the hands of the present holders, which might be made to it if Bugbee, the indorser, was the plaintiff.

A ground of objection made at the trial was, that the note was given by the defendant to Beaumont, and by him indorsed to Bugbee, without consideration and for the accommodation of Bugbee; and as to this objection, the judge instructed the jury that, if the note was thus made for the accommodation of Bugbee, the plaintiffs could not recover. The defendant further requested the judge to instruct the jury, that if Shepherd, when he gave the note, was ignorant of the promise of Beaumont to Bugbee, the plaintiffs could not recover. But the judge instructed the jury, that if the note was made by Shepherd for the accommodation of Bugbee, without knowledge of and assent to the agreement in respect to the payment out of the proceeds of the sale of the house, the plaintiffs could not recover. And we are of opinion that the instruction given, and not that which was asked for, was correct.

The case may be tested by supposing Bugbee to be the plaint