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jority of the court, that the defendants were entitled to judgment, because no grant of a right of lateral support for the factory, by the adjacent land, could be presumed from the enjoyment of such support by the plaintiff for twenty years, inasmuch as the owners of this land never had any power to oppose the conversion of the dwelling-house into a factory, and had no reasonable means of resisting or preventing the enjoyment by such factory of lateral support from the adjoining soil, and for the same reason such support was not an easement which had been enjoyed for twenty years within the Prescription Act (2 & 3 Wm. 4, c. 71, s. 2), as it could not be said to have been enjoyed by a person claiming right thereto and without interruption. Lush, J., however, dissented, holding the rule generally understood to prevail, was the correct one. The cases of Dougal v. Wilson, 2 Saunders, 504; Darwin v. Upton, id. 506; Mayor of Kingston v. Horner, 2 Cowp. 102; Doe v. Reed, 5 B. & A. 232; Solomon v. Vinters Co., 4 H. & N. 585; Bonomi v. Backhouse, 9 H. L. C. 503; Chasemore v. Richards, 7 H. L. C. 370; Webb v. Bird, 10 C. B. (N. S.) 268; Will v. Commissioners of New Forrest, 18 C. B. 60, were cited. The doctrine laid down by the majority of the court is in accordance with that prevailing in this country. See Mitchell y. The Mayor, 40 Ga. 19; 15 Am. Rep. 669, where quite an extended discussion of the subject appears. Also, Wood on Nuisances, § 202, where the various authorities, both English and American, are collected and compared.

of public entertainment, and that if done fairly and without malice or view to injure the proprietor, however severe the censure, the justice of it screens the editor from legal animadversion. See, also, Carr v. Hood, 1 Campb. 355; Henwood v. Harrison, L. R., 7 C. P. 606; Fry v. Bennett, 28 N. Y. 324; Gregory v. Duke of Brunswick, 6 M. & G. 953.

In Hester v. Commonwealth, decided by the Supreme Court of Pennsylvania on the 7th of January last, it is held that the entry of a nolle prosequi is not a bar to a second indictment. The reason of this rule is stated in McFadden v. Commonwealth, 11 Harris, 12, to be that a prisoner charged with a crime is not in jeopardy until the jury is empaneled and sworn. At common law a nolle prosequi may be at any time retracted, and is not only no bar to a subsequent prosecution in another indictment, but it may be so far canceled as to permit a revival of proceedings on the original bill. Even a personal agreement by the attorney-general will not make the entry a bar. But if a jury has been actually empaneled, the entry, it is said, operates as an acquittal. Reynolds v. State, 3 Kelly, 53; U. S. v. Shoemaker, 2 McLean, 114; Mount v. State, 14 Ohio, 295. And when after a prisoner had pleaded to the indictment, and after the jury had been sworn and evidence offered, the public prosecutor, without the consent of the prisoner and without order of court, withdrew a juror merely to enter a nolle prosequi, it was held that the prisoner could not afterward be tried on the same indictment. People v. Barrett, 2 Caines, 304; Commonwealth v. Tucker, 20 Pick. 356. See also as supporting the principal case, State v McNeil, 3 Hawks, 183; Commonwealth v. Wheeler, 2 Mass. 172; Commonwealth v. Lindsay, 2 Virg. Cas. 345.

In the case of Gott v. Pulsifer, 122 Mass. 235, plaintiff brought action for an alleged false and malicious libel published concerning the image known as the "Cardiff Giant," in defendants' newspaper. The image belonged at the time to plaintiff, and he had made a contract with one Palmer to sell it to him for $30,000. Defendants' newspaper in a humurous article charged that the "giant" was a humbug and that it had been sold in New Orleans for the sum of eight dollars. In consequence of the appearance of this article the sale to Palmer was not made. The jury found for defendants. The Supreme Court sustained certain exceptions taken by the plaintiff and gave a new trial, saying, however, that "the editor of a newspaper has the rignt, if not the duty, of publishing for the information of the public, fair and reasonable comments, however severe in terms, upon any thing which is made by its owner a subject of public exhibition as upon any other matter of public interest; and such a publication falls within the class of privileged communications for which no action can be maintained without proof of actual malice." See, as supporting this rule, Dibden v. Swan, 1 Esp. Cas. 28, where Lord Kenyon charged that the editor of a newspaper may fairly and candidly comment on any place or species | 10 Johns. 247; Shaddock v. Clifton, 22 Wis. 114.

In the case of Abbott v. Abbott, to appear in the 67th Me.. it is held that a wife cannot, after being divorced from her husband, maintain an action against him for an assault committed upon her during coverture, nor against persons who confederated with and assisted him in committing the assault. The assault in question was forcibly carrying the wife to an insane asylum. The same question came before an English court in Phillips v. Burnet, L. R., 1 Q. B. D. 436, and the decision was in accordance with that in the principal case, the court saying that divorce does not make a marriage void ab initio, but merely terminates the relation of husband and wife, and as the husband and wife are one person, up to that time, neither can maintain an action against the other. The reason that the wife cannot maintain the action afterward is that as there was no civil remedy at the time the act was committed there was no civil right. See State v. Oliver, 70 N. C. 60; Norcross v. Stuart, 50 Me. 87; Hasbrouck v. Weaver,

SOME RECENT DECISIONS-TWENTY-SECOND AMERICAN REPORTS.

THIS

HIS volume condenses twenty-three volumes of reports of the States of Illinois, Kansas, Maine, Maryland, Michigan, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina and Wisconsin.

In Third National Bank of Baltimore v. Boyd, 44 Md. 47, it is held, where a national bank has received bonds as a collateral security for an indebtedness already existing and for future obligations, and after the discharge of the indebtedness, the bonds were stolen from the bank, that the bank was not a gratuitous bailee, that it had power to take the bonds as security for existing or future indebtedness, and was bound to use ordinary diligence and care in the custody of the bonds. The doctrine of Wiley v. First National Bank of Brattleborough, 47 Vt. 546, and First National Bank of Lyons v. Ocean National Bank, 60 N. Y. 278, on which we have heretofore commented, is approved and distinguished.

Hardesty v. Richardson, 44 Md. 617, decides that where a father makes to his son a parol gift of land, and the son enters into possession and makes improvements in reliance upon the gift, the gift is irrevocable in equity and a conveyance will be decreed. This is harmonious with Freeman v. Freeman, 43 N. Y. 34, which is cited with approval.

A rather curious principle is announced in Happel v. Brethauer, 70 Ill. 166, namely: that the court will not act upon the admission of parties that a statute has not been passed in the manner required by the Constitution, but that the fact must be shown by the printed journals on the certificate of the Secretary of State. Otherwise, say the court, "the entire statute might be abrogated by agreement."

A remarkable case of conflict of authority is shown in Dewey v. Warriner, 71 Ill. 198, which holds that the indorser of negotiable paper is not a competent witness to impeach its consideration. This doctrine, the reporter's note informs us, is in harmony with the decisions in the United States Supreme Court, Massachusetts, Maine, Pennsylvania, Ohio, Iowa, Mississippi and Tennessee, but hostile to those of England, New York, New Jersey, Maryland, Vir- | ginia, Connecticut, New Hampshire, Michigan, Kentucky, North Carolina, South Carolina, Georgia, Alabama, Texas and Missouri. We confess we cannot see why the indorser should not be competent to prove the fact as well as any other witness. There is a manifest distinction between this line of proof and proof of the admission of the indorser to the same effect, which was held incompetent in our leading case of Paige v. Cagwin, 7 Hill, 361.

Smith v. Knight, 71 Ill. 148, is an interesting case. A agreed to advance money from time to time to B, up to a certain amount, to enable B to carry on

business, and B agreed to pay interest on the average balance advanced, and also to divide the profits, after deducting a fixed sum for expenses, but A was not to bear any losses. Held, that A and B were not partners as to third persons. This is in direct conflict with Leggett v. Hyde, 58 N. Y. 272; 17 Am. Rep. 244; where it is held that the test is the receipt of the gains of the adventure as profits. But turning over a few leaves of our volume, and stepping across the State of Indiana into Ohio, we find, in Harvey v. Childs, 28 Ohio, 319, that "participation in the profits of a business, though cogent evidence of a partnership, is not necessarily decisive of the question. The evidence must show that the persons taking the profits shared them as principals in a joint business in which each has an express or implied authority to bind the other." In the latter case Leggett v. Hyde is referred to and distinguished on the ground of the difference between a continuing trade, from which the authority of the lender may be implied, as in the New York case, and a single transaction, where no credit is contemplated, as in the Ohio case.

In First National Bank v. Ricker, 71 Ill. 439, the facts were as follows: the defendant received a check in good faith and for value, but becoming suspicious of its genuineness presented it to the plaintiff, on whom it was drawn, and demanded payment without disclosing his suspicions. The plaintiff's teller expressed doubt as to the signature, but said he would pay it if defendant would indorse it, which he did. Held, that the defendant, on discovering that the check was a forgery, might recover from the defendant the money paid on it. The principle seems to be that the presumption that the drawee knows the signature of the drawer is conclusive only in cases of innocent holders.

Shannon v. Hall, 72 Ill. 354, holds that where a conveyance is once duly recorded, it is thenceforth notice to all the world, even though the record is totally destroyed. In this case the public records had been destroyed by fire; a statute was passed providing for their restoration, but a mortgagee took no steps to restore his record. It was held that a subsequent bona fide purchaser of the land took title subject to the mortgage.

In Union National Bank v. Oceana County Bank, 80 Ill. 212, it is held that an action may be maintained against a bank refusing to pay a check drawn upon it, where it is in sufficient funds of the drawer. This is in conflict with the rule everywhere else except in Kentucky, but the court make no reference to the singular fact. We would like to have the learned court explain (what it does not attempt to explain) how an unaccepted draft can operate as an assignment of the drawer's funds in the drawee's hands.

Sheehy v. Cokley, 43 Iowa, 183, was an action of slander for calling a woman what Desdemona expressed by "that name." Held, that proof of sexual intercourse with her affianced husband before

marriage was not a justification, and that evidence of her good general reputation for chastity was admissible.

In Blanchard v. Lambert, 43 Iowa, 228, a husband and wife separated, and afterward the husband cohabited with another woman whom he claimed and who was reputed to be his wife; nine years after the wife, with knowledge of the fact, married again, and lived with the second husband until his death; in a proceeding for dower in the second husband's estate, held, that it would be presumed that the first marriage had been legally dissolved before the second marriage, or if the second marriage was originally void, that a subsequent marriage had taken place after the death of the first husband.

In McCluer v. Girard Fire and Marine Insurance Company, 43 Iowa, 349, a fire policy was issued on a "contained in a frame barn." carriage described as The carriage was destroyed by fire while under repair at a carriage shop. Held, that the loss was -covered by the policy. A valuable note accompanies this case.

A valuable case for abortionists is State v. Winthrop, 43 Iowa, holding that an infant, even after birth, is not the subject of murder until an independent circulation has been established. So, it seems, infanticide is safe enough if committed before the severance of the umbilical cord.

Another case showing remarkable conflict of authority is Pritchett v. Mitchell, 17 Kans. 355, holding that a second mortgagee cannot plead usury in a mortgage either to defeat or postpone its lien. This view is sustained by the decisions of Alabama, Connecticut, Illinois, Iowa, Kentucky, Michigan, Missouri and Vermont. On the other side are Indiana, Pennsylvania, Ohio, New York, Maryland and New Jersey. An elaborate note accompanies this case.

TAXATION OF PERSONS RESIDING IN TWO PLACES.

SUPREME JUDICIAL COURT OF MASSACHUSE MARCH, 1878.

THAYER V. CITY OF BOSTON.

Plaintiff had for many years been an inhabitant of Boston, had lived there in his own dwell g-house with his family, and paid taxes, and had an ice for business. On account of the increase of taxation in 1870, he removed to the town of Lancaster, where he already had a summer residence, and thereafter remained there some months each year with his family, claiming to reside there, paying taxes, voting and holding office there. He, however, spent several months each year in Boston, which continued to be the principal place of his social and domestic life, and the place where the most of his family expenditures were made. In an action to recover back a tax for personal property, assessed upon and collected from him by the city of Boston, in 1876, held, that the question whether he was an inhabitant at that time of Boston or not, for the purposes of taxation, was for the jury.

While the choice of the tax payer as between two places of residence is an element to be considered in determining his domicile, a choice in favor of one place will not control a preponderance of evidence in favor of another. In all disputed cases it is the duty of the court to submit each case to the jury, with instructions adapted to its peculiar aspects.

THIS action was brought in the Supreme Judicial Court for Worcester county to recover back a tax assessed by the city of Boston upon the plaintiff, and paid by him under protest. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions to certain rulings of the presiding judge. The case was reported to the full court.

G. F. Hoar, H. C. Hutchins and A. S. Wheeler, for plaintiff.

D. Foster and W. S. B. Hopkins, for defendant. COLT, J. The plaintiff's right to recover back the tax paid by him to the city of Boston depends on whether he was, within the meaning of the statute, an inhabitant of that city on the 1st day of May, 1876, and subject to taxation there. Gen. Stat., ch. 11, § 12. The case requires the application of those rules which determine where a citizen is legally taxable, who has more than one place of residence in this State, situated in different municipalities, in each of which he lives with his family for a part of each year.

Hayner v. Cowden, 27 Ohio, 292, is not so much remarkable for what it decides as for the argument of the defendant's counsel. The decision was that words charging a clergyman with drunkenness, when spoken concerning him in his calling, are actionable in themselves. This was held, in spite of the following argument: "Ministers ought not to be regarded in the eye of the law as purer or holier than any other men, nor entitled to protection in any greater degree. The law is no respecter of persons; it no longer makes any distinction between classes or conditions of men; its guiding star now is equal-residence to the latter place, where he should be ity before the law for all.'"

In 1869 the plaintiff was an inhabitant of Boston, where since early life he had lived with his family and paid taxes. He there had a dwelling-house and an office for business, where his account-books and valuable papers were kept. He complained of the increase of his taxes in the previous year, and informed the assessor if they were again increased he would pay no more taxes in Boston. In the assessment of the following year his taxes were increased, and he accordingly gave notice to the assessors of Boston and to the assessors of Lancaster that he had removed his

thereafter taxed. The plaintiff was born in Lancaster,

We must suspend our examination of this inter- and at the time of giving the notice owned the place esting volume.

The lawyers of Lyons, France, became dissatisfied with M. Lagrevol, an appellate judge, and unanimously resolved not to plead before him unless he should publicly apologize for his conduct toward them. What the result of this action will be is not yet known.

formerly belonging to his father, where he was born. Upon this place, in 1860, he had erected a new dwelling-house, and afterward lived there a portion of each year with his family, going from his house in Boston early in June and returning in October or November following. After giving the notice he continued to live there with his family as before, for a part of each year, voting and being taxed only in that town, taking part in town meetings, and occasionally

serving on town committees. The plaintiff on crossexamination testified that Boston was, and had been,

since he was marrie the principal place of his and domestic life, and that the greater part of mily expenditures had been there made.

nly so much of the evidence at the trial as was thought necessary to present the question of law raised by the defendant's requests for instructions, and by the exceptions taken to the exclusion of evidence, is reported. The judge declined to give the instructions requested, except so far as they were embraced in the instructions given; and by the terms of the report judgment is to be entered on the verdict for the plaintiff, unless there was error in the refusal to instruct the jury as requested, or the evidence offered was improperly excluded. The discussion is limited to these points.

The jury, under the instructions which were given, must have found that the plaintiff, after 1869 and before the 1st of May, 1876, when this tax was assessed, with an honest intention to change his domicile or permanent residence from Boston to Lancaster, to make the latter the place of his permanent and real home, as distinguished from a mere place of temporary summer resort, did acts which amounted to such change, and made himself an inhabitant of Lancaster. The weight of the evidence on which this finding was made is not for our consideration. This is not a motion to set aside a verdict, as against the weight of evidence, and it is enough upon this report that we cannot, as a matter of law, declare that the evidence would not, under the instructions given. justify the finding. The question remains whether the instructions requested ought to have been given, in whole or in part, or ought to have been given in the language requested.

The statute declares that all personal property shall be taxed to the owner in the city or town where he is an inhabitant on the 1st day of May. By the decisions of this court it is held that in cases of this description the inhabitancy which fixes the place of taxation must be practically equivalent to that legal residence which establishes the domicile of the tax payer, although the words do not always have precisely the same meaning. Briggs v. Rochester, 16 Gray, 337. The Constitution of this Commonwealth declares that to remove all doubts concerning the meaning of the word "inhabitant," 66 every person shall be considered an inhabitant, for the purpose of electing and being elected into any office or place within this State, in that town, district or plantation where he dwelleth or hath his home." § 2, art. 2.

It is always a question of fact where the place of a man's domicile is. As to most persons it is determined at once by the decisive facts which show permanent and unchanging residence in only one place. As to such persons, the question of domicile, the question where they are to be taxed, or where they have a right to vote, presents no difficulty. There can be no right of election to the tax payer between two places when one is already fixed by the actual facts which go to establish domicile. It is only when the facts which establish permanent residence and domicile are ambiguous and uncertain, in the absence of any settled abode, and when the real intention of the party cannot be ascertained, that the question becomes difficult. It may then require an examination into the motives of the man, his habits and character, his domestic, social,

political and business relations for a series of years; and the answer will depend in the end upon the weight of evidence in favor of one or two or more places. It is evident that with the increasing number of those who live each year in different places, the increased facilities for travel, and the great temptation to escape taxation by a change of domicile, cases of the latter description are becoming more common.

It is said to be difficult, if not impossible, to give an exact and comprehensive definition of domicile. No test which can safely be applied to all cases has yet been established.

In Lyman v. Fiske, 17 Pick. 234, it was said that, "in general terms one may be designated as an inhabitant of that place which constitutes the principal seat of his residence, of his business, pursuits, connections, attachments, and of his political and municipal relations. It is manifest, therefore, that it embraces the fact of residence at a place with the intent to regard it and make it his home. The act and intent must concur, and the intent may be inferred from declarations and conduct. But the election to be taxed in one town rather than another is only one circumstance bearing upon the question of actual habitancy, and to be taken in connection with other circumstances to determine the principal fact."

In Sears v. Boston, 1 Metc. 250, it was declared that actual residence, that is, personal presence in a place, is one circumstance to determine domicile or the fact of being an inhabitant, but is far from conclusive. A seaman on a long voyage and a soldier in actual service may respectively be inhabitants of a place, though not personally present there for years. It depends upon many other considerations besides actual presence.

In Briggs v. Rochester, 16 Gray, 341, that the words "where he shall be an inhabitant on the first of May, means where he shall have his home on that day." In Otis v. Boston, 12 Cush. 49, that "a man is properly said to be an inhabitant where he dwelleth and hath his home." In Abington v. North Bridgewater, 23 Pick. 170, that "it depends not ou proving particular facts, but whether all the facts and circumstances taken together tending to show that a man has his domicile or home in one place overbalance all the like proofs tending to establish it in another."

If we adopt the definition taken from the Constitution, which seems intended to put the matter beyond doubt, it will be found to be only an identical proposition, equivalent to declaring that a man shall be an inhabitant where he inhabits, or be considered as dwelling or having his home where he dwells or has his home. It must often depend upon the circumstances of each case, the combinations of which are infinite. If it be said to be fixed by the place of his dwelling-house, he may have dwelling-houses in different places; if it be where his family reside, his family with himself may occupy them indiscriminately, and reside as much in one as another; if it be where he lodges or sleeps per noctat, he may lodge as much in one as the other. Thorndike v. Boston, 1 Metc. 245; Harvard College v. Gore, 5 Pick. 231; Blanchard v. Stearns, 5 Metc. 298; Opinion of the Justices, id. 587; Williams v. Roxbury, 12 Gray, 21. It is evident that the choice of the tax payer, as between two places of residence, is an element to be considered in determining which is the real domicile; but a choice in favor of one place will not be per

mitted to control a preponderance of evidence in favor of another. The place of domicile, upon which so many important municipal obligations and privileges depend, is not left by the law to the choice of the citizen, except only as such choice may give character to existing relations and accompanying acts of residence which are not in conflict with it. As between different places, it may depend on a mass of evidence which will generally include as one of its items the declared intentions and choice of the party himself. The weight to be given to that intention, however honest, will depend largely upon the condition of all the evidence.

If the evidence be equivocal and uncertain, then the choice may be sufficient to turn the scale; if the weight of it be one way, then an opposite intention or wish will be of little or no avail. Holmes v. Greene, 7 Gray, 299.

The true rule was plainly recognized in Cheney v. Waltham, 8 Cush. 327. The judge was there asked by the plaintiff, who sought to recover back a tax paid the defendant, to rule that if the true dividing line between two towns passed through an integral portion of the dwelling-house occupied by him and his family, then he had a right to elect in which town he would be assessed on his personal property and become a citizen. This was refused, and it was ruled that if the house was so divided by the line as to leave that portion of it in which the occupant mainly and substantially performed those acts and offices which characterized his home (such as sleeping, eating, sitting and receiving visitors) in one town, then the occupant would be a citizen of that town, and that no right of election would exist; and that if the house was so divided by the line as to render it impossible to determine in which town the occupant mainly and substantially performed the acts and offices before referred to, then the occupant would have a right of election, and his election would be binding on both towns. The rule thus laid down was declared by the full court to be sufficiently favorable to the plaintiff on the question of his right to elect.

In the law of domicile it is settled that a person can have but one domicile at the same time, for the same purpose; that domicile once acquired remains until a new one is acquired; and that a new one is acquired only by a clear and honest purpose to change, which is carried into actual execution. Applying these maxims to the facts, in all disputed cases it is the duty of the court to submit each case to the jury with instructions adapted to its peculiar aspects.

Upon a careful examination we are satisfied that the instructions here requested, so far as they were not substantially given by the judge in his charge, were properly refused. The jury were told that the plaintiff must prove all the facts necessary to make out his case, including the fact that he was not an inhabitant of Boston on the 1st of May, 1876.

They could not have been properly instructed that he was prima facie such inhabitant "if he and his family were on that day living in a house of his own, in the same way in which he had lived in Boston during those years in which he admits he had been a taxable inhabitant of that city," for such instruction was calculated to mislead the jury by excluding from their consideration the evidence of inhabitancy acquired in Lancaster, It would be stating a conclusion from one

item of evidence bearing on the question which is not in itself conclusive. The third request was, therefore, properly refused.

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The fourth and seventh requests were embraced in the instructions "that the mere intention of purpose formed or expressed to change his home is not enough; he must do something which actually works a change of home. The act of change and the intention must concur. The first part of the fifth request was given, and the judge was not required to give the definition of home contained in the last part. The principal place of abode of a man and his family, when it is only a temporary abode, is not his home in the sense here required. The sixth was properly refused, because the single fact of residence on the first of May, in the popular meaning of that word, is not conclusive on the question of inhabitancy or domicile. The eighth request was for an instruction that the facts therein recited were conclusive on the question of domicile, and left out of view all the evidence in the case which might possibly control those facts. It was properly refused.

The instructions which were given to the jury recognize in their whole tenor the rules of law applicable to the facts in this case. And the report does not reserve to the defendant the right to except to the phraseology of each sentence in the instructions given to the jury, but only the question whether there was error in the rulings on evidence which was excepted to, or in the refusals to instruct the jury as requested by the defendant.

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The exceptions taken to the exclusion of evidence require brief consideration. On cross-examination the plaintiff was asked: What amount of personal property he had on the 1st of May, 1868, not exempt from taxation?" This question was answered.

He was then asked "what amount of personal property he had," and upon his declining, the court refused to order him to answer.

The next question objected to was, as to how much tax the witness paid at the West on certain railroad stock there. The exceptions to the refusal of the court to permit these questions cannot be sustained. The issue was whether the plaintiff on the 1st of May, 1876, was an inhabitant of Boston. The motive which induced him to change to Lancaster was not material to that issue. A man may change his residence for the purpose of reducing taxation only, although he will be subject to a penalty if he escapes taxation by designedly changing or concealing his residence for that purpose. Stat. 1864, ch. 172. The wish to change for that purpose does not tend to show any want of a real As intention to change, but rather the contrary. bearing on the honesty of his purpose to change his residence, the plaintiff was required to state what amount of taxable personal property, he had on the 1st of May, 1868, but the inquiry, what was the whole amount of his personal property was quite different, and had more remote bearing on the case. The extent to which a witness may be cross-examined upon facts which appear to be material only as showing his bias or testing his accuracy or credibility, is largely a matter within the discretion of the court, to the exercise of which no exception lies. Commonwealth v. Kelley, 113 Mass. 453; Commonwealth v. Leyden, id. 452; Miller v. Smith, 112 id. 470. Exceptious overruled,

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