INDEX.

ACTIONABLE TORT.

In action by alleged husband on account of personal injuries to wife plaintiff must prove that he is husband of person injured, see HUSBAND AND WIFE, 2.

ADVERSE POSSESSION.

1. The occupation of a tenant in possession of land under a lease in writing, for the purpose of establishing adverse possession under a claim of right by his landlord, extends, if not actively interfered with, to the whole premises described in the lease if the tenant has actual physical possession of any part. Murphy v. Commonwealth, 361.

2. For the purpose of acquiring title to land by limitation, acts of disseisin and of letting the land to a tenant done by a town under a claim of right have the same effect as similar acts done by any other corporation or by an individual. In determining whether the possession of an actual occupant is the possession of the town all the acts of the town relating to the ⚫ matter are to be considered. Ibid.

3. On the issue of the title to certain land claimed by a town under adverse possession beyond the period of limitation, the town can show by crossexamination of the claimant against the town that the witness never paid any taxes on the land and that he knew of no one paying taxes upon it for him or for any of the heirs at law of the ancestor under whom he claimed, this tending to show by inference that no taxes had been assessed because the town claimed title. Ibid.

4. To prove title by limitation in a town to certain land on a beach, the town may put in evidence entries on the books of the town treasurer showing the receipt of rent for the land, leases of the land made by its selectmen, and votes of the town authorizing the making of such leases by the selectmen and asserting the town's exclusive ownership of the land, tending, with the additional facts of occupation of the land by the lessees and payment of rent by them to the town, to show continuous and open possession of the land by the town through its lessees. Ibid.

5. To show possession of certain land on a beach by a town under a claim of right, and also to show the authority of the selectmen of the town to

Adverse Possession (continued).

deal with the land, the town may put in evidence an indenture between the town and the owner of adjoining land, adjusting a boundary of the land in question, and containing a copy of a vote of the town referring the matter of the adjustment of the boundary to the selectmen with full power to act thereon. Murphy v. Commonwealth, 361.

6. On the issue of the title to certain land claimed by a town under adverse possession beyond the period of limitation, if the claimant against the town has testified that he went upon the land and told the lessee of the town that he owned it and then withdrew upon being told that he must settle the matter with the town, he cannot be asked in his own behalf what his intention was in going upon the land and informing the lessee that he owned it, as his undisclosed intention cannot affect the character of his act, or make it any the more an interruption of the peaceable possession of the town. Ibid.

City or town can acquire land for purpose not public by adverse possession, see MUNICIPAL CORPORATIONS, 5.

AGENCY.

When driver of team is acting within scope of employment, see MASTER AND SERVANT, 1.

For cases of existence of relation, see MASTER And Servant, 2, 3.

Superintendent of streets agent of town in effecting certain grading of street, see WAY, 4.

Acts of town's agents ratified by town where acts done for years openly have been referred to in annual town reports, see MUNICIPAL CORPORATIONS, 8.

In action against railroad admissibility of statements of station agent after accident not in performance of duty and of statements before accident in performance of duty, see EVIDENCE, 17.

ALTERATION OF INSTRUMENTS.

Proper declaration on note payable "with interest" altered by insertion of words "seven per cent," see BILLS AND NOTES, 3.

ANIMAL.

1. Evidence of single instances of misconduct on the part of a horse, such as kicking and running away, is admissible to show that the general character of the horse is vicious. Palmer v. Coyle, 136.

2. Whether a horse on account of habits of shying and running away is more likely to behave in a vicious manner when a wagon presses against him and a whiffletree drops on his heels is a question of fact for the jury. Ibid.

3. In an action by a servant against his employer for injuries from being kicked by a horse of the defendant alleged to be vicious, whose viciousness it is alleged the defendant by the exercise of reasonable care ought to have known, after evidence of specific instances of misconduct on the part of

the horse, such as kicking and running away, further evidence of the reputation of the horse is admissible to prove the defendant's knowledge of his vicious qualities. For this purpose it is competent to show that because of such propensities the horse was driven with another horse by the defendant's servants as it was not thought safe to drive him alone, and also to show a conversation in the defendant's presence in which the horse was referred to as a "runaway." Palmer v. Coyle, 136.

APPEAL.

Attorney general may authorize attorney to take appeal on behalf of Commonwealth, see ATTORNEY GENERAL.

ARBITRAMENT AND AWARD.

Where building contract under seal provides that decision of architect relative to contract shall be final, his decision that builder must excavate quicksand unexpectedly encountered is binding on parties, and power conferred on architect cannot be revoked after decision, see CONTRACT, 12, 13.

ASSAULT AND BATTERY.

1. It is no defence to a complaint for assault and battery that the defendant was acting under the advice of counsel, which turned out not to be correct. Commonwealth v. Middleby, 342.

2. It is within the discretion of the presiding judge at the trial of two defendants for assault and battery, one of whom has testified in his own behalf that he took no part in the assault, to allow the government to ask this defendant on cross-examination whether he did not approve of the assault, for the purpose of impeaching his credibility as a witness, although the silent approval of an assault and battery is no crime. Ibid.

ASSIGNMENT.

For Benefit of Creditors.

Assignment good at common law is valid under U. S. bankruptcy act of 1898 if made more than four months before filing of petition in bankruptcy, see BANKRUPTCY, 1.

Assignment otherwise valid under U. S. bankruptcy act of 1898 is not invalid because not recorded as required by R. L. c. 147, §§ 21, 22, relating to insolvency, see BANKRUPTCY, 2.

Of Bail Money.

Assignment by prisoner of bail money ineffective against title of depositor, see RECOGNIZANCE, 1.

ATTACHMENT.

Of Personal Property.

1. A deputy sheriff attaching goods in a wholesale warehouse has a right to make a schedule of the goods before removing them, although after the

Attachment (continued).

goods attached are ascertained he cannot keep them on the premises. Com-
monwealth v. Middleby, 342.

2. On the question of what is a reasonable time to be taken by a deputy
sheriff and his assistants in removing goods attached in a wholesale ware-
house, it is proper to refuse to allow the proprietor, an experienced shipper
familiar with the premises, to testify in his own behalf how long it would
take to remove them. Ibid.

3. The rights of the owner of goods attached as against the attaching officer
and his assistants are in no way affected by the right of the officer to ask
for instructions as to the property to be attached from the plaintiff on
whose writ he is making the attachment. Ibid.

4. Whether a deputy sheriff attached all the goods in a wholesale warehouse
on a writ against the proprietor, after the proprietor had told him to go
ahead and attach but that some of the goods were not his, or whether the
attachment was only of a part of the goods, is a question of fact to be de-
cided by a jury on consideration of what was said and done at the time as
disclosed by the evidence. Ibid.

5. If the return of an officer states that he attached certain goods specifi-
cally described and at the same time attached other goods which he only
identifies as goods of the defendant in a designated building, and fur-
ther states that thereafter he released from attachment the goods not
specifically described, the return discloses a valid attachment.
Smith v.

Wenz, 421.

6. After an application by a plaintiff for a sale under R. L. c. 167, §§ 82-
96, of goods which have been attached, if the attaching officer by direction
of the plaintiff, instead of proceeding with the proposed sale, removes and
stores the attached goods and continues to hold them, the attachment re-
mains good, as the plaintiff has a right to withdraw his application for a
sale. Ibid.

Railroad rolling stock.

7. R. L. c. 167, § 39, providing that railroad cars and engines in use and
making regular passages on railroads shall not be attached upon mesne
process within forty-eight hours previous to their fixed time of departure
unless the officer first demands other property upon which to make the
attachment, applies to an attachment of cars and engines by trustee pro-
Cox v. Central Vermont Railroad, 596.

cess.

No right, under Vermont statute, to attach rolling stock leased to but never
owned by defendant railroad company, see TRUSTEE Process, 5.

Officer's Return.

8. In determining the validity of an attachment the return of the attaching
officer must be taken as true. If not true, the remedy is by an action
against the officer for a false return. Smith v. Wenz, 421.

Rights of Attaching Creditor to redeem.

Attaching creditor in bill to redeem attached real estate from mortgage not
bound, without notice, by oral agreement of mortgagor, see MORTGAGE, 4.