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not sit unbiased in determining the guilt or innocence of the defendant, upon a complaint instituted by the juror's authorized agent. We think that the juror was not competent to sit, and that the superior court erred in allowing him to remain upon the panel. Exceptions sustained.

(143 Mass. 84)


(Supreme Judicial Court of Massachusetts. Bristol. November 24, 1886.)



At the trial of an indictment charging the defendant with the obstruction of a way, it is not necessary to offer direct evidence that the laying out of the way was duly filed in the town clerk's office.


A license to a defendant to place a gate across a road does not include an authority to keep the gate locked, with the key in his own possession, which would be equivalent to stopping up the road.

3. SAME-ACCEPTANCE OF WAY BY TOWN-SPECIAL ISSUE-VERDICT-NEW TRIAL. Where, at the trial of an indictment charging the defendant with obstructing a town way, the judge submitted to the jury a special issue, viz., whether the town, after voting at a town meeting to accept the way when first laid out, entered upon and worked the part of the way which was obstructed, held, that it was not necessary for the jury to agree upon the special issue, and that the failure of the jury to so agree was no ground for a new trial, no objection being taken at the time to the course of the judge in receiving the verdict.

This was an indictment in two counts,-the first count alleging that the defendant, at Berkley, from January, 1885, until the time of finding the indictment, (December 9, 1885,) obstructed a public highway by putting and placing a fence and gate across the same; the second count alleging the same facts in regard to a certain public way in said town,-both counts being alleged to be different descriptions of the same act. At the trial in the superior court, before BARKER, J., the following facts appeared: That the way in question is a town way, located in that part of Berkley known as "Assonet Neck," and the defendant occupies and owns a farm at the end of the road hereinafter mentioned, having purchased it from the heirs of one George Pierce, deceased; that in 1853 the town of Berkley laid out a way over certain portions of Assonet Neck, the said way being laid out by the selectmen of said town upon petition of certain citizens. The acts of the selectmen were accepted by the town, and a record of such acceptance was made in the town records of the town clerk. One of the selectmen of the town, acting in the year 1853, was present in court, but was not called by either party. John A. Read, town clerk, testified that the town had no by-laws; that none were on the town records; that, if there were any, they were those which where framed at the original organization of the town, in 1735; that he was not able to find the original report of the selectmen on the laying out of this road. It was shown that, in 1853, George Pierce, who was living, applied to the selectmen, through his agent, for leave to place a gate somewhere over the road nearer his house than the bars were, and was granted a parol license to place the gate on the road, "where he pleased,-where it was most convenient." This license has never been revoked. A gate was built by Pierce shortly after, and was maintained by him for about two years, when he moved it about two rods north, and it has since been in the same place, and maintained in the same form. The defendant purchased Pierce's farm in 1881, and found the gate where it has been since maintained; the gate as built originally by Pierce, and maintained by the defendant, being about 12 rods north from the southerly terminus of the road as laid out by the town in 1853.

It was proved by the commonwealth, and admitted by the defendant, that,

at divers times in 1885, he had kept the gate locked, and had the key in his possession. The commonwealth introduced testimony tending to show that the defendant had locked the gate, and parties driving up to the gate could go no further, and had turned back.

The defendant asked the court to rule that (1) the road in question, and which it is alleged was obstructed by the defendant, was not legally established at the town meeting held in Berkley in February, 1853, and that the alleged location is invalid and void, for the reason that there is no evidence that the said laying out was filed in the office of the town clerk in conformity with law, and for the additional reason that the report of the selectmen, and their survey, was insufficient and uncertain, and did not properly define the said road, and because it does not appear that said town meeting was legally called; (2) that if a license was granted by the selectmen for the placing of a gate on or near the place where a gate was maintained by the defendant, and such license was never revoked, and if such gate was standing when the defendant bought, having been put there by his grantor, the defendant should not be convicted. The court declined to give such instructions; but instructed the jury that it was necessary to the validity of a town way that the report thereof should be filed by the selectmen with the town clerk at least seven days before the town meeting at which the question of acceptance was voted upon, but that, in this case, as there was nothing in the testimony or evidence inconsistent with the seasonable filing of the report, such seasonable filing might be presumed; and also that a license from the selectmen to maintain a gate across a way would justify the defendant in keeping up such gate, but not in locking the gate, and thereby preventing persons from passing and traveling along the way without his consent; and that if defendant had locked the gate, and thereby prevented persons from passing along the way, such license would not be a justification of such acts. The defendant excepted to the refusal of the court to give the above instructions asked for by defendant, and to the instructions given, so far as inconsistent with his said prayers for instructions. The court also submitted the following special issue to the jury: "Did the town of Berkley, after its annual meeting of 1853, enter upon and work any portion of the town way (which at said meeting it voted to accept) between the bridge and the southern terminus of the road?" The court directed a verdict of not guilty on the first count. The jury returned into court, and were asked whether they had agreed upon their verdict. The foreman replied that they had agreed upon their verdict, but were unable to agree on the special issue submitted to them by the court. Thereupon, without objection, the verdict of the jury was taken. The verdict was not guilty on the first count, and guilty on the second count, and the defendant alleged exceptions.

M. Reed, for defendant.

Was there "a certain public way," in the town of Berkley, duly established at the place where the obstruction by the defendant is alleged to have occurred? If so, was any unlawful obstruction by the defendant proved at the trial,that is, an obstruction for which he was criminally liable? See St. 1846, c. 203; Morse v. Stocker, 1 Allen, 154. The road had not become a public way by prescription. Jennings v. Tisbury, 5 Gray, 74; Bowers v. Suffolk Manufg Co., 4 Cush. 332; Durgin v. Lowell, 3 Allen, 401; Rowland v. Bangs, 102 Mass. 299; Fall River Print-works v. Fall River, 110 Mass. 432; McKenna v. Boston, 131 Mass. 143; Sexton v. North Bridgewater, 116 Mass. 200; Com. v. Coupe, 128 Mass. 63.

As to the action of the town, see Jeffries v. Swampscott, 105 Mass. 535; Poor v. Blake, 123 Mass. 545; Taber v. New Bedford, 135 Mass. 163. This case is clearly distinguishable from Geer v. Fleming, 110 Mass. 39. See Greenl. Ev. § 20. The case more nearly resembles that of Hathaway v. Clark, 5 Pick. 491. See Stevens v. Taft, 3 Gray, 487; Phillips v. Ford, 9

Pick. 38; Hudson v. Hulburt, 15 Pick. 427; Franklin v. Dedham, 18 Pick. 544; Reed v. Acton, 120 Mass. 130.

As to the acts of defendant, see Pub. St. c. 54, §§ 4, 5; 2,Bish. Crim. Law, § 1272; Williard v. Cambridge, 3 Allen, 574; Bish. Crim. Law, §§ 1276, 1279; Cutter v. Cambridge, 6 Allen, 20; Hollenbeck v. Rowley, 8 Allen, 473.

The failure of the jury to agree upon the special question submitted to it by the court leaves an issue unsettled, which the presiding justice must have deemed of importance. Under these circumstances, the jury rendered a general verdict of guilty upon the second count, which ought not to stand. Com. v. Call, 21 Pick. 509; Com. v. Dooley, 6 Gray, 360; Kansas Pac. R. R. v. Pointer, 14 Kan. 37, 51; Commissioners v. Kromer, 8 Ind. 446, 449; Burleson v. Burleson, 28 Tex. 383; Abb. Jury Tr. 162, § 52; Crane v. Reeder, 25 Mich. 303; Maxwell v. Boyne, 36 Ind. 120; Harriman v. Queen Ins. Co., 49 Wis. 71; S. C. 5 N. W. Rep. 21.

E. J. Sherman, Atty. Gen., for the Commonwealth.

C. ALLEN, J. It was not necessary to offer direct evidence that the laying out of the way was duly filed in the town clerk's office. The action of the selectmen, and of the town, presupposes that this had been done, and warrants an inference of the fact. See Blossom v. Cannon, 14 Mass. 177; Wallace v.. First Parish in Townsend, 109 Mass. 264; Bank of U. S. v. Dandridge, 12 Wheat. 70; Cornett v. Williams, 20 Wall. 226, 250; Steph. Dig. Ev. (Amer. Ed.) 187, 271; Williams v. Eyton, 4 Hurl. & N. 357.

The license to the defendant to place a gate on the road could not include an authority to keep the gate locked, with the key in his own possession, which would be equivalent to stopping up the road.

It was not essential that the jury should agree upon the special issue submitted to them, and no objection was taken at the time to the course of the judge in receiving the verdict. Exceptions overruled.

(143 Mass. 129)



Where money was borrowed in this commonwealth of the plaintiff by an agent of the defendant, a resident in New Hampshire, the agent being employed by the defendant for the purpose, and the latter, after receiving the money from the agent to whom it had been delivered by the plaintiff, signed and returned to the plaintiff a receipt sent with the money, held, that the contract was made in this state, and that the fact that the receipt was signed in New Hampshire was immaterial.

This was an action of contract. Trial in the superior court, before PITMAN, J., without a jury, who found for the plaintiff, and the defendant alleged exceptions.

F. L. Evans, for defendant.

No contract was completed until the defendant, at her home in New Hampshire, accepted the money from Mrs. Shirley. Until that time the plaintiff had entered into agreement, but had merely made an offer, which she could have withdrawn at any time by notice to Mrs. Shirley. And no contract could be completed until the communication and acceptance of the offer, and, in this jurisdiction, the communication of the acceptance. McCulloch v. Eagle Ins. Co., 1 Pick. 278; Lewis v. Browning, 130 Mass. 173. Even adopting the doctrine of other jurisdictions, that, in cases of communication by mail, the contract is complete before the receipt of notice of acceptance, no contract was completed in this case until the time above stated. See Lewis v. Browning, 130 Mass. 173, 175. Consequently, the contract being com

pleted by acceptance in New Hampshire, it was made in New Hampshire, (McIntyre v. Parks, 3 Metc. 207; Worcester Bank v. Wells, 8 Metc. 107; Merchant v. Chapman, 4 Allen, 364; Lawrence v. Bassett, 5 Allen, 140; Milliken v. Pratt, 125 Mass. 374,) and must be controlled by the law of New Hampshire. If that law gave no remedy, plaintiff cannot recover in an action here. Powers v. Lynch, 3 Mass. 77; Dunscomb v. Bunker, 2 Metc. 8; Stanton v. Demerritt, 122 Mass. 495. No question of ratification of agency arises.

N. J. Holden, for plaintiff, cited Fuller v. Ruby, 10 Gray, 288; Pettingill v. Porter, 8 Allen, 1; O'Connell v. Jacobs, 115 Mass. 21; Whiton v. Nichols, 3 Allen, 583; Allen v. Mooney, 130 Mass. 155; Hackett v. Potter, 135 Mass. 349; McIntyre v. Parks, 3 Metc. 207; Rice v. Dwight Manufg Co., 2 Cush. 80; Orcutt v. Nelson, 1 Gray, 536; Lawrence v. Bassett, 5 Allen, 140; Stewart v. Jenkins, 6 Allen, 300.

MORTON, C. J. The only question presented in this bill of exceptions is whether the presiding justice of the superior court, who tried the cause without a jury, was justified in finding that the contract sued on was made in this state. It appeared in evidence that the defendant, a married woman living in the state of New Hampshire, in the summer of the year 1864, employed her sister Mrs. Shirley to borrow for her $50 of Mr. Hill, her brother, living in Salem, in the state of Massachusetts. Mr. Hill declined to lend the money, but his wife, out of her own money, delivered to Mrs. Shirley $50, together with a paper of which the following is a copy:

"SALEM, July, 1864.

"Borrowed and received from Nancy D. Hill the sum of fifty dollars. Sign this and return it."

Mrs. Shirley carried the money and paper to the defendant, who took and kept the money, signed the paper, knowing its contents, and returned it to the plaintiff at Salem, in this state. The presiding justice was justified in finding that, according to the understanding and purpose of the parties, the plaintiff lent the defendant, through her agent, Mrs. Shirley, the sum of $50 at Salem, in Massachusetts, and that the defendant ratified the acts of her agent. There is no evidence which shows that the plaintiff employed Mrs. Shirley as her agent to lend money for her in New Hampshire. The justifiable inference from all the evidence is that the parties intended that the transaction should be in form, what it was in substance, a loan by the plaintiff to the defendant, the plaintiff assuming what the evidence shows to have been true, that the defendant had no choice as to the person of whom she borrowed, and that she would ratify the act of her agent. This being so, the fact that the note was signed in New Hampshire is immaterial. The contract of loan being made in this state upon the condition that the note should be signed, and returned to the plaintiff in this state, the note became operative as evidence of the contract when it was delivered to the plaintiff in this state. Lawrence v. Bassett, 5 Allen, 140; Milliken v. Pratt, 125 Mass. 374.

We are therefore of opinion that the superior court was justified in refusing to rule that the contract sued on was made in New Hampshire, and in the finding that it was made and to be performed in Massachusetts, and therefore it is to be governed by the laws of this state. Exceptions overruled.

(143 Mass. 118)

CHASE, Adm'r, v. HORTON.

(Supreme Judicial Court of Massachusetts. Bristol. November 26, 1886.)

1. EVIDENCE-DECLARATIONS OF GRANTOR IN DISPARAGEMENT OF TITLE. After a conveyance of real estate, the declarations of the grantor in disparage ment of his grant, made in the absence of the grantee, are never admissible in evi

dence against the latter; and, where a father conveyed real estate to his son, evidence of such declarations made by the former are inadmissible in a writ of entry against the son.


Where a father makes a conveyance of land to his son in good faith, and without any intent to defraud creditors, it will not be conclusive evidence of fraud which will avoid the deed, as to creditors, that the son permitted the grantor to occupy the premises in any way to his benefit.

This was a writ of entry brought by Elijah P. Chase, as administrator of the estate of Joseph G. Horton, against his son Josephus W. Horton, to recover the homestead farm formerly of Joseph G. Horton, and on which he lived at the date of his death, August 11, 1883. The tenant pleaded nul disseizin, and the trial was had on that issue. At the trial in the superior court, before HAMMOND, J., the demandant showed title in said Joseph G. Horton of the demanded premises from his brother Levi Horton, by will; his appointment as administrator of the estate of Joseph G. Horton, November 7, 1884; a license issued to him by the probate court authorizing him to sell the whole of the real estate of said Joseph G. Horton; and a formal entry made by the demandant, as administrator of said Joseph G. Horton, on the premises, before bringing this suit. The tenant put in evidence a warranty deed of Joseph G. Horton given to tenant, dated August 20, 1878. The demandant offered evidence tending to show that the said Joseph G. Horton continued to occupy and improve the demanded premises, from shortly after the probate of the will of Levi Horton, until his death, and after the deed given by him to the tenant, in the same manner as before, as a homestead; that, at the date of the deed to the tenant, said Joseph G. Horton owed the demandant and divers other persons, who had, before the date of deed to the tenant, pressed him for payment, and he had failed to make payment; that when so pressed, before said deed was given, upon the premises demanded, he informed the various creditors that he had not the money to pay with, but that there was ample property there to pay all debts; that, if he did not pay them, Josephus, his son, the tenant, would see that they were paid. The demandant offered evidence of certain witnesses that, shortly after the deed was given by Joseph G. Horton to Josephus W., they called together upon Joseph G. Horton at his homestead, and on the premises demanded payment of certain debts due them, respectively, which they had also called for payment thereof before the date of the deed to the tenant; that Joseph G. then told them that he had property enough here to pay all his debts; that he gave the deed to Josephus to prevent his creditors from turning him out of doors; that he could not pay them, but his son Josephus would pay all these bills; and that they could go and see him; and other conversations of like import. The court excluded this evidence, as also other evidence of like nature, and refused to admit any and all statements and talk of the father, Joseph G., after the giving of the deed to the tenant, except such as were made in the presence of the tenant.

The demandant, in addition to certain requests for rulings, the nature of which appears in the opinion, asked the court to rule, first, as follows: "Where a grantor executes a deed to his son of his homestead where he is living, and, after delivering the deed, continues in the use and occupation of the homestead as before, and afterwards, while in such occupation, he refers creditors of claims against him, existing prior to the date of the deed, to his son, who thereupon, in conversing with them, admits the purpose of the deed to protect the father from his creditors, the statements of the father while in possession of the land, and on the premises, but not in the presence of the son, referring such creditors to the son for payment, are competent against the son in impeaching his title." The court declined to give this ruling, and also the third request, which was as follows: "If, at the time of the delivery of the deed by Joseph G. Horton, the father, to Josephus W. Horton, the son, there was any agreement or understanding between them by which the land thus conveyed

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