1. If the defendant in a criminal case offers himself as a witness, he may be asked if he has ever been arrested before the arrest on the charge for which he is then on trial, if he has ever been convicted of any offence, and if he has ever served a sentence in prison or for a crime; and if he answers such questions falsely, he may be convicted of perjury. Commonwealth v. Johnson, 152.
2. An indictment for perjury, in answering falsely certain questions asked for the purpose of showing a previous conviction of crime, need not set forth that when the questions were asked a copy of a previous conviction had been offered in evidence or was in the possession of the District Attorney. Ibid.
See CONVERSION; DECLARATION, 2; EVIDENCE, 17, 18; MECHANIC'S LIEN, 1; Mortgage, 1; Pledge.
1. At the trial of a complaint for holding one's self out as a physician and surgeon without being registered according to law, a ruling that if the defendant held himself out as an eye specialist he held himself out as 66 one who devoted himself to a branch of the healing art, which is the profession of the physician and surgeon," and that "if the defendant held himself out as an eye specialist he held himself out as a physician and surgeon within the meaning of the statute," is correct. Commonwealth v. St. Pierre, 48.
2. At the trial of a complaint for holding one's self out as a physician and surgeon without being registered according to law, the burden is on the defendant to show that he is a registered physician, if he relies on such a justification; and this applies where the absence of a license is made part of a description of the offence. Ibid.
3. If a complaint charges the defendant with holding himself out as a physician and surgeon without being registered according to law, proof that he acted either as a physician or surgeon is sufficient to support the complaint. Ibid.
See COMPLAINT, 2; DECLARATION; EQUITY, 8, 11, 13; EXCEPTIONS, 4;
1. An unauthorized sale of pledged property by the pledgee does not cause
him to lose his lien and render him liable for the value of the property,
if no damage is sustained by the pledgor. Whipple v. Dutton, 365.
2. A pledgee is precluded from buying at a foreclosure sale of the property
pledged, whether the sale is held under Pub. Sts. c. 192, §§ 10, 11, or
under the contract of pledge or otherwise. Lord v. Hartford, 320.
3. The doctrine that where a pledgor seeks to follow the pledged property
bought in by the pledgee and to assert title to it in the hands of a third
person the sale will be treated as voidable only, has no application to an
action by the pledgor to recover from the pledgee damages caused by a
wrongful sale of the property pledged. Ibid.
See ASSIGNMEnt; InsolvenCY.
A notice to a debtor to appear and submit to an examination touching his
estate, under Pub. Sts. c. 162, § 18, upon an application for an order for
his arrest, may be served by a constable. French v. Goodnow, 451.
See ABSENT DEFENDANT; AGREED FACTS; APPEAL; BASTARDY PRO-
CESS; CIVIL ACTION; COMPLAINT, 1; COURT OF REGISTRATION;
DECLARATION, 1, 3; DEPOSITION; EQUITY, 8-14; EVIDENCE, 27;
EXCEPTIONS; EXECUTION; FORCIBLE ENTRY AND DETAINER, 2;
JUDGMENT; MECHANIC'S LIEN; PHYSICIAN, 2; PROBATE Court, 2;
REDEMPTION; REPLEVIN; SCIRE FACIAS; SENTENCE; STAY OF
PROCEEDINGS; SUPERIOR COURT; TAX, 3; TRIAL; TRUST AND
TRUSTEE, 1, 2; TRUSTEE PROCESS; WRIT OF ENTRY; WRIT OF
ERROR.
1. There is a distinction between transactions where the emphasized ob-
ject is an advance of money, whether to be repaid in money or goods,
and those where the object is a sale and where an advance, if made, is
only incidental to the purchase and not its end. To receive an advance
of the latter sort may be within the power of an agent not authorized to
borrow, so far that if the goods are not delivered the advance can be
recovered because of the failure of the consideration. American Mining
& Smelting Co. v. Converse, 449.
2. If A. is employed by B. to sell machines made by the latter, and is to be
paid as a commission the difference between the selling price which is
fixed by him and a price named by the defendant, and B. agrees not to
sell machines to A's customers without his consent at prices less than
those named by him to them, and after A. has brought the machine to
the notice of C., B. sells to C. an incomplete machine for a price a little
more than that named by A. for a complete machine without his con-
sent, thus depriving him of a portion of his commission, in an action by
A. against B. for breach of the agreement, B. is not entitled to have
the jury instructed "that there was no evidence that the machine could
have been sold for more than the price for which the defendant sold it,
and that if they should find for the plaintiff their finding must be for no
more than nominal damages." Buffum v. York Manuf. Co. 471.
3. At the trial of an action of contract to recover certain commissions
under an alleged oral agreement with the president of the defendant
corporation, it appeared that the president was authorized to make a cer-
tain written agreement with the plaintiff, and that payments were made
under it by the corporation, the agreement containing the clause, “Any
transaction entered into in other countries shall be subject to another
agreement; " that the oral agreement declared on relative to sales in other
countries followed the next year, the president being still the ostensible
agent of the defendant, and that the plaintiff was entitled to a commis-
sion on a certain sum representing sales in those countries, if he could
recover anything. The president did not deny making the oral agree-
ment, but testified that he did not remember any such conversation.
Held, that enough appeared to warrant a finding that the president was
authorized to make the contract declared on. Scribner v. Flagg Manuf.
See BOND; BROKER; CONSTITUTIONAL LAW, 7; EVIDENCE, 1, 3, 25;
SAVINGS BANK; TOWN, 2; WAIVER.
Negligence of the officers of a town, in not discovering at an earlier date
the defalcation of its collector of taxes, will not discharge the sureties on
his bond. Winthrop v. Soule, 400.
See EVIDENCE, 26; STAY OF PROCEEDINGS.
See ESTATES OF PERSONS DECEASED, 5; LIBEL, 2.
PROBABLE CAUSE.
See MALICIOUS PROSECUTION.
1. The equity jurisdiction given by statute to the Probate Courts over all
cases relating to trusts created by will and the termination thereof is a
concurrent jurisdiction shared by the Superior Court and by this court;
and while the fact that in the records of the Probate Courts are found
the wills under which such trusts arise and the inventories and accounts
of the trustees, with their official bonds, the proceedings under which
they were appointed and other matters affecting the trust, may have
been a reason for conferring this concurrent jurisdiction, it does not
enlarge that jurisdiction or enable those courts to entertain any bill
which could not also be entertained by the Superior Court or by this
court; nor does it enable a Probate Court upon its equity side to do any
of those things upon a bill in equity with reference to such a trust which
can be done by a Probate Court under its probate jurisdiction only.
Green v. Gaskill, 265.
2. Trustees appointed by a Probate Court, as well as guardians, adminis-
trators, and executors so appointed, have a right to have their accounts
adjusted and the amounts due to or from them as trustees determined in
the Probate Court, on its probate side and in the usual probate pro-
ceedings, and they cannot be compelled first to render their accounts or
made to pay over the fund, by proceedings in equity or at law, save after
and in pursuance of such an adjustment and determination on the
probate side of the court. Ibid.
See APPEAL, 3; EQUITY, 1; LIMITATIONS, STATUTE OF.
1. If a promissory note bears an indorsement when delivered to the payee,
an indorsement made by him when he puts the note in the bank for col-
lection does not make him the first indorser. Reed v. Bacon, 407.
2. In an action on a promissory note payable in two years, given in payment
for the good will in a milk route and personal property used in connec-
tion therewith, the maker also agreeing to buy all his milk from the
payee at a certain rate a can, which agreement he kept, and paid bills
rendered monthly for it at that rate, evidence of an oral agreement that
when the note was settled a discount of a certain sum a can on all milk
bought after the date of the note should be made and applied thereon
contradicts the written agreement contained in the promissory note and
is inadmissible; and the statute of frauds, Pub. Sts. c. 78, § 1, cl. 5, is a
defence to a declaration in set-off for the amount of such discount.
Kelley v. Thompson, 427.
See ACTION, 1; ASSIGNMENT; EVIDENCE, 1, 2; FORCIBLE ENTRY AND De-
TAINER, 4; INSOLVENCY; MORTGAGE, 2-4; PARTNERSHIP; VARIANCE.
PROXIMATE CAUSE
See NEGLIGENCE, 17.
Racing for a cup which was offered as a prize for a series of bicycle races
between the members of three specified clubs, and was purchased by the
voluntary subscriptions of persons not members of any of the three
associations, is not betting, gambling, or wagering, and is not against
public policy. Wilkinson v. Stitt, 581.
1. The provision of Pub. Sts. c. 112, § 160, requiring railroad corporations
to maintain guards at every structure, any portion of which crosses the
railroad above the track, does not apply to the cornice of a roof over a
station platform about a foot and a half from the line of the nearest rail
and about fourteen and a half feet above the rail. Quinn v. New York,
New Haven, & Hartford Railroad, 150.
2. If, after a car has passed from the hands of one railroad into those of
another and before it has reached the place where an accident occurs, it
has passed a point at which the cars are inspected, the responsibility of
the first railroad for a defect in the car is at an end. Glynn v. Central
Railroad, 510.
See ACTION, 3; EMPLOYERS' LIABILITY ACT, 1, 2; EVIDENCE, 7, 8; GRADE
CROSSING; MASTER AND SERVANT, 2–5; Negligence, 4, 7, RAIL-
ROAD COMMISSIONERS; TRIAL, 12.
1. It seems, that a bill in equity under St. 1898, c. 578, § 25, may be main-
tained to the extent of revising the rulings of the board of railroad com-
missioners. Daniels v. Commonwealth Avenue Street Railway, 518.
2. An extension of the location of the tracks of a street railway company,
approved by the board of railroad commissioners, will not be declared
void upon a bill in equity filed under St. 1898, c. 578, §§ 13, 15, for the
reason that it is granted over the tracks of another street railway company
continuous with the first, the use of which by the defendant is permitted
under a contract with the other company, approved by the railroad com-
missioners, and sanctioned, but not expressly authorized under the Pub.
Sts. c. 113, § 48, by the board of aldermen of the city in which the tracks
are located; nor for the reason that the location granted is temporary
only, and is to terminate upon the abolition of a crossing at grade of a
railroad and a way over which it is intended that the defendant's track
shall subsequently be laid. Ibid.
See ACTION, 4, 5; CONSTITUTIONAL LAW, 2, 3; COURT OF REGISTRATION;
DEED; DEVISE AND LEGACY; EMINENT DOMAIN; EQUITY, 3; ESTATES
OF PERSONS DECEASED, 1; EVIDENCE, 20, 21; INSURANCE, 2; Me-
CHANIC'S LIEN; MORTGAGE, 2-4; NEGLIGENCE, 1, 6; NEW TRIAL;
REDEMPTION; RETURN; TAX, 1-3; WRIT OF ENTRY.
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