1. The plaintiff brought suit for usury. At the same time he owed the
defendant a balance on another debt greater than the amount of the plain-
tiff's claim, which was, however, outlawed. Held, that such balance could
not be set off in extinguishment of the plaintiff's claim. Parker v. Nat'l Life
Ins. Co., 65.
2. Where the action was general assumpsit, and the defendant pleaded in
offset, but the plaintiff did not reply in offset, and the case was referred,
held, that the referee had no right to consider matters which could only have
been shown by the plaintiff under such declaration in offset, and that the
County Court could not embrace such matters in its judgment on the
referee's report. In rendering judgment on the report of a referee only those
matters can be considered as pleaded, which could be introduced by way of
amendment to those pleadings actually filed, or treated as filed. Warren v.
Caryl, 331.
1. Where a contract provides for an accounting, from time to time, and
the parties thereto enter into such accounting during the life of the con-
tract, and agree upon a settlement up to a stated time, and the contract is
continued in force on the strength of such settlement, the result so arrived
at will have the force of an account stated, up to that time, on final adjust-
ment after the termination of the contract, and cannot be disturbed, there
being no mistake of fact. Tupper & Porter v. Rider and wife, 69.
1. When the orator prays specific performance of a written contract, and
the court may and does receive parol proof of some variation of or addition
to the written instrument, contemporaneous with its execution, specific per-
formance of the contract, as modified, may be decreed without a cross-bill.
Redfield v. Gleason, 220.
SPECIAL MASTER. See EQUITY 26, 27, 28, 29.
STATUTES CONSTRUED AND LIMITED.
1. R. L. c. 157, ss, 3359, 3364, 3358, 3357, Railroads, right to take land, 4, 5, 10, 11.
2. R. L. s. 2042, Will, requisites of, 20.
3. R. L. s. 2047, Will, how revoked, 20.
4. R. L. s. 3836, Common nuisance, what held to be, 40.
5. R. L. s. 3802, Intoxicating liquor, penalty for selling, etc., 40.
6. R. L. s. 1618, Grand Jury, information by, 46.
7. R. L. s. 4137, Larceny, 47.
8. R. L. s. 768, Decree of foreclosure, record of, 86.
9. R. L. s. 769, Redemption of premises, 86.
10. R. L. s. 1076, Attachment, 118.
11. R. L. s. 28, Repeal, effect of, 129.
12. Act of 1882, No. 28, 29, Listers, oath of, 102.
13. Act of 1882, No. 16, Highways and Bridges, 126.
14. Act of 1884, No. 18, Highways and Bridges, 126.
15. Act of 1886, No. 16, Highways and Bridges, 126.
16. R. L. s. 2978 Highways and Bridges, 129.
17. R. L. s. 2844, Paupers, removal of, 144.
18. Act of 1886, No. 42, Paupers, settlement of, 139.
19. R. L. s. 1502, Close jail execution, 147.
20. R. L. s. 1178, Damages, how assessed, 151.
21. R. L. s. 4127, Arson and Burning, 155.
R. L. s. 4128, Setting fire to buildings other than those used for resi-
dence, 155.
23. R. L. s. 1655, Witness, 191.
24. R. L. s. 2115, Commissioners, appointment of, 259.
25. R. L. s. 2117, Commissioners to try claims, 259.
26. R. L. s. 2123, Commissioners, report of, 259, 356.
27. R. L. s. 2124, Commissioners, to notify claimants, 259.
28. R. L. s. 2125, Commissioners, claims not presented to, 259.
29. R. L. s. 2277, Appeal by administrators, 259.
30. R. L. s. 2149, Administrator, suit of v. Estate, 259.
R. L. s. 2094, Executor, examination of, 260.
32. R. L. s. 2106, Exrs. & Admrs. notice of allowance of accounts of, 260.
33. R. L. s. 2275, Appeal by creditor, 261.
34. R. L. s. 2274, Administrator, security for costs to be given to, 262.
35. R. L. s. 103, Judges and Registers, 265.
36. R. L. s. 2018, Probate Court, jurisdiction of, 265.
37. R. L. c. 108 Commissioners on Estates, 265.
38. R. L. s. 2724, Tax Collector, payment of, 317.
39. R. L. s. 1966, Mortgage, record of, 321.
40. R. L. s. 1967, Mortgage, affidavit of parties to, 321.
R. L. s. 1972, Mortgagor, not to sell or pledge property,
42. R. L. s. 923, Pleadings, 335.
43. R. L. s. 3418, Railroad Bridges, width and height of, 348, 353.
44. R. L. s. 3419, Railroads, ladders to cars of, 348, 353.
45. Act of 1884, No. 12, s. 2, Highways and Bridges, 317.
46. Act of 1884, No. 73, Protection of fish, 346
47. Act of 1884, No. 245, Protection of fish, 346.
48. Act of 1872, No. 34, Divorce, 370.
49. R. L. s. 2121, Commissioners, time of presenting claims to, 355.
50. R. L. s. 2362, Divorce, 370.
51. R. L. s. 1081, Writ, service of on non-resident, 373.
52. Act of 1886, No. 59, Divorce, 370.
53. Act of 1884, No. 140, Property Rights of Married Women, 390.
54. R. L s. 973, Statute of Limitations, 403.
55. R. L. s. 961, Witnessed note, 408.
56. R. L. s. 2150, Mortgage, foreclosure of by executor, 416.
57. R. L. s. 4141, Embezzlement, 421.
58. R. L. ss. 4138, 4137, Larceny, Jurisdiction, 421.
59. R. L. ss. 2138, 2139, Estates, suits by and against, 438.
60. R. L. s. 2134, Action for bodily hurt when party dies pending suit, 441.
61. R. L. s. 2135, Action by legal representatives, 441.
62. R. L. c. 131, Town Lines, 449.
63. R. L. ss. 2755, 2756, 2757, Town Lines, procedure 'in establishing, 450-451.
64. R. L. s. 1933, Real estate, conveyance of, 453.
65. R. L. s. 383, Taxes, notice of by treasurer, 471.
66. Act of 1882, No. 127, State Tax, assessment of, 473.
67. R. L. s, 3800, Intoxicating Liquor defined, 512.
68. R. L. s.1170, Costs, in case of discontinuance, abatement or non-suit, 546
69. Act of 1886, No. 59, Divorce, 548.
70. R. L. s. 1870, Insolvency, proceedings by creditors, 551
71. R. L. s. 1793, Insolvency, deposit for petitioner for expenses, 552.
72. R. L. s. 1977, Mortgage, Chattel, sale of property, 582.
73. Act of 1884, No. 91, Agistors, rights of, 582.
R. L. s, 3279, Private Corporations, liability of presidents and directors
of, 598.
75. R. L. c. 153, Voluntary Associations, 598.
76. Act of 1886, No. 85, Tax title, 530.
77. Act of 1884, No. 93, Conditional Sale, 612.
78. R. L. s. 1348, Habeas Corpus, the word "forthwith" construed, 624.
1. The collector cannot maintain an action against a town, where the
selectmen have caused the taxes to be collected through some other agency,
for what he would have realized from their collection, although by law it was
his duty to collect them. Woodward v. Town of Rutland, 316.
See LISTS 1, 2; DEED 20, 21, 22, 23.
1. The stipulation contained in the ordinary printed form of the Western
Union Telegraph Company, that the company will not be liable in damages
beyond the price of the message for any neglect in its transmission, unless
the sender causes it to be repeated, is void in law, and such company will be
liable for the negligence of itself or its agents notwithstanding. Gillis v. W.
U. Tel. Co., 461.
2. The status of a telegraph company is the same as that of a common
carrier of passengers for hire. It is bound to use due care in the business it
undertakes for the public, and cannot restrict its liability for negligence
therein. Ib.
1. Telephone companies are so far common carriers in their relation to the
public that they must serve all the members thereof alike in the transmission
of messages. Com. U. Tel. Co. v. N. E. Tel. Co., 241.
2. Defendant was a telephone and relator a telegraph company, both
doing a general business in this State, and having offices in the village of
Rutland. Defendant operated under license from the Am. Bell Telephone
Company, by the terms of which it was restricted from connecting with the
office of a telegraph company without the consent of the licensor. With such
consent it had connected with the office of the W. U. Telg. Co., another tele-
graph company, in the village of Rutland. Held, that the restriction was
void, and that the defendant must connect with the office of the relator. lb.
TENANCY IN COMMON. See FRAUDS, STATUTE OF, 2; PARTNERSHIP
1. The plaintiff has good title to the increase of stock sold to him by H.
and remaining on the farm which was raised after the sale of the personal
property to plaintiff. Wolcott v. Hamilton, 79.
2. The vendee of property exempt from attachment acquires a title to such
property and its subsequent increase, good against the creditors of the ven-
dor without any change of possession. Ib.
3. An adjudication in a suit of trespass qua, clau. against the tenant, does
not determine the landlord's title; hence a landlord may maintain a bill of
the peace to restrain the bringing of such vexatious suits against his tenant,
whom he is bound to secure in the possession of the premises. Langdon v.
Templeton, 119.
4. The vendor in a tax sale, conducted with due formality, who enters in
good faith and in reliance upon his title and occupies, but who never receives
a deed from the collector, has such an equitable interest in the premises that
he may maintain such a suit. lb.
1. One who aids, advises, countenances or commands the commission of a
tort, or approves of it, when committed, is liable, if for his benefit, as for its
commission. Mack v. Kelsey et al., 399.
2. The fact that a person is present may, when taken in connection with
the circumstances of the case, be evidence from which alone the jury could
infer such liability. Ib.
3. The verdict being joint, the court cannot say that it is untainted, as
to either defendant, by the admission of improper evidence. Ib.
1. Under No. 16, Acts of 1882, providing for contribution between towns in
the construction of bridges, Sharon began a proceeding against Strafford, by
virtue of which it obtained a judgment for contribution in 1885. By No. 18
of the Acts of 1884, the act of 1882 was repealed, but sec. 8 of the latter act
provided that it should not apply to suits then pending. The act of 1884
provided that towns then contributing might apply to the court, which
should vacate such order for contribution. Act No. 16, 1886, repealed sec-
tion 8 of the act of 1884, but left the last named provision in force. Held, that
under the act of 1884, as left, Stafford could not be relieved from the order of
1885. Stafford v. Sharon, 126.
2. For, by virtue of R. L., sec. 28, the act of 1884 would not have applied to
the then pending suit, if the act had contained no sec. 8; so that the act
could not acquire a force from the repeal of that section which it would
never have had without it. Ib.
3. Further, by the judgment of 1885, the town of Sharon acquired a right
which the Legislature had no power to impair. Ib.
4. Where a committee for the establishment of a town line report that
they have not considered certain evidence in coming to their conclusions,
the reception of that evidence, although inadmissible, will not be a ground.
for refusing to accept their report. Somerset v. Glastenbury, 449.
See PAUPERS 1, 2, 3, 4, 5, 6; PRACTICE 3, 4, 5.
TRESPASS. See PLEADINGS 11; TITLE 3.
1. Testimony may be admitted on one ground, although inadmissible on
another, its use being restricted to the proper purpose. State v. Spaulding, 505.
2. When a party becomes a witness in his own behalf he subjects himself
to cross-examination at the hands of the adverse party; but the trial court
may, in its discretion, limit the length of such examination, at least as to
collateral and immaterial matters, and such discretion will not be revised by
the Supreme Court. Harvey v. Brouilette, 525.
3. Where the general issue is pleaded, or is under the rule treated as
pleaded, so that the plaintiff must, in the first instance, make out his case,
it is the right of the plaintiff to begin and close the argument. Ib.
4. Since the plaintiff did not claim the immunities of a bona fide holder,
what he paid for the note in suit was immaterial, and could not be shown. [b
5. The trial court ordered that the witnesses for the State should be exam-
ined separately. Held, that an attorney of the court, who had been present
during the trial, but not engaged in it, might testify in rebuttal to a fact as to
which he was the only witness. State v. Ward, 153.
5. The verdict being joint, the court cannot say that it is untainted, as to
either defendant by the admission of improper evidence. Mack v. Kelsey, 399.
See EQUITY 26, 27.
Where the orator conveyed real estate to the intestate, who gave her
note for the purchase price, and executed a lease at the same time for ten
years, reserving a rent equal to the interest on the note, it being mutually
agreed at the time that the rent should offset the interest, and that if either
party died within the life of the lease all the papers then executed should
be annulled, held, that a written instrument executed by the intestate at
that time and setting up the above facts did not create a trust under R. L. s.
1933. Salisbury v. Clarke, 453.
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