session of this property, also dealt with it as an owner would naturally be likely to do. Even his declaration as to ownership while in possession of the property, although made in the absence of G. L. Eames, and not with the solemnity of a written instrument, would have been competent. Place v. Gould, 123 Mass. 347; Walcott v. Keith, 22 N. H. 212. Holmes, J., delivered the opinion of the court: A mortgage alone is no evidence of the mortgagor's title or possession. Gibbs v. Childs, 3 New Eng. Rep. 205. It is unnecessary to decide whether, when the property belonged to one of two persons, both of whom handled it, and the only question is which was owner and had possession, and which only an agent or servant, the execution of a mortgage by one, witnessed by the other, would or would not be some evidence that the property belonged to the mortgagor; because, as we understand the bill of exceptions, there was independent evidence that the mortgagor was in possession when he made the mortgage. If he was, then making the mortgage was an act of dominion and some evidence of title. See Farwell v. Rogers, 99 Mass. 33. Exceptions overruled. COMMONWEALTH of Massachusetts v. Charles R. MOODY. The offense of keeping a room for the purpose of registering a bet or selling a pool is but one offense, however many different unlawful purposes the room was kept for. The offense of keeping is a single offense, and all the various purposes may properly be charged in one count. (Suffolk- -Filed January 4, 1887.) The defendant then moved to quash the said complaint on the ground that the same is bad for duplicity. This motion was made and disallowed in the court below. The court overruled the motion. The defendant then entered a plea of nolo contendere, which was accepted by the government. The court below reported the case to this court. If the plea to the jurisdiction is sustained, the case is to be dismissed. If the motion to quash should have been allowed, then the defendant is to have leave to withdraw his plea of nolo contendere, and the complaint to be quashed; otherwise judgment to be entered on the said plea. Messrs. C. J. Brooks and F. F. Heard, for defendant: The question of jurisdiction is to be determined on the construction of the Constitution and of the statutes. Pub. Stat. chap. 154, § 50; Pub. Stat. chap. 217, § 1, 2. See Commonwealth v. Smith, 138 Mass. 489; Bill of Rights, art. XII. There is a class of cases which is distinguishable from the case at bar. When one count in an indictment charges two offenses, distinct in kind, and requiring distinct punishments, the objection of duplicity has been allowed in arrest of judgment (Commonwealth v. Symonds, 2 Mass. 163; Commonwealth v. Holmes, 119 Mass. 198); but when the two offenses are precisely alike, the only reason against joining them in one count is that it subjects the accused to confusion and embarrassment in his defense. In such case the objection is to be taken by de murrer. In the case at bar, the statute offense consists in keeping the building or room for various The complaint is substantially in the language ON report. Judgment for the Commonwealth. of the statutes, and hence sufficient. Prosecution under Legislative Acts 1885, chap. 342, 1. Heard in the Superior Court | before Staples, J., on appeal from the Municipal Court of the City of Boston. Complaint, made by Henry Chase, charged that defendant, January 3, 1886, and at divers other days and times, did keep a certain room in a building in Boston (describing it) and did "occupy said room with apparatus, books, betting tickets, and other devices, a further description of said apparatus, books, betting tickets, and other devices being to said Chase unknown, for the purpose of registering bets, and of buying and selling pools upon the results of trials and contests of skill, speed, and endurance of men, beasts, birds, and machines, and upon the results of certain games of ball to be played between contesting baseball players, against the peace," etc. Before the jury was impaneled to try the issue the defendant filed a plea to the jurisdiction of this court, on the ground that said municipal court had no jurisdiction to try, determine, and punish the offense here complained of. The court overruled the plea. Acts 1885, chap. 342, § 1; Commonwealth v. Dyer, 128 Mass. 71. It is the general rule that motions to quash must assign specifically the reasons for such a proceeding. Pub. Stat. chap. 214, § 25; Commonwealth v. Murray, 135 Mass. 530; Commonwealth v. Jenks, 138 Mass. 488. C. Allen, J., delivered the opinion of the court: 1. The objection for want of jurisdiction in the municipal court to try, determine, and punish the offense was waived at the argument. See Commonwealth v. Smith, 138 Mass. 489. 2. The objection on the ground of duplicity cannot be supported. The offense charged is not the registering of a bet or the selling of a pool, although these are criminal acts, but the keeping of a room for the purpose of doing those things. It makes no difference, in this respect, how many different unlawful or criminal purposes the room was kept for. The offense of keeping it for these various purposes is a single one, and may properly be charged in one count. Commonwealth v. Kimball, 7 Gray, 328, 330. Judgment for the Commonwealth. E. C. MORRIS et al. V. F. B. BRIGHTMAN, Appt. 1. An order for a safe, drawn upon a dealer in safes in Boston, delivered to the sales agent of such dealer, to be retained by him three or four days before he transmitted it, and countermanded on the next day by the maker, is not such a contract of purchase as may be enforced against the maker of the order in an action brought for the pur chase price of the safe. 2. A letter of defendant to the sales agent, mailed the day after the document was handed to him, was admissible in evidence to show that defendant had exercised his right to countermand the order while it was still in the hands of the agent. F. B. Brightman. Freight to be paid by Morris & Ireland to Charlton Depot, via B. & A. R. R. Select one without any. green in decoration on outside. At the trial in the superior court, before Bacon, J., it appeared in evidence that the plaintiffs, who do business in Boston, selling safes, received said contract by mail from their selling agent, who then resided in Worcester, on November 3, 1883, being the day after the same was signed and delivered to McGregor by the defendant; and that, on said date, the plaintiffs, without further knowledge or information from the defendant or their selling agent, shipped the safe and delivered it on board the cars in accordance with the contract. It further appeared that the defendant, to prove that the order never was intended to take effect as a | contract, introduced in evidence, against plaintiffs' objection, a letter dated November 3, 1883, which he testified he sent to McGregor by mail the day after he signed and delivered the contract aforesaid, but which letter the plaintiffs had no knowledge of until informed by a letter from defendant to them, under date of November 26, 1883. The material parts of said letter to McGregor, dated November 3, 1883, were as follows: "Please countermand order for safe given yesterday. have thought the matter over, and cannot see my way clear to take it at present. No doubt my change of mind may annoy you, but I know my own affairs best, and you would be much more offended if I should fail to pay. When I have collected in my affairs closer, and am getting more secure in regard to my bills, days hence, but cannot in good judgment at will then give you an order, say sixty or ninety present." The defendant was further allowed to testify, against plaintiffs' objection, that the with the understanding that said McGregor was contract was signed and delivered to McGregor not to transmit the order to his principals, but was to keep it in his possession for three or four days, during which time the defendant, if he should make up his mind that he did not want the safe, could so write to McGregor, and that he would destroy the order, and until the expiration of the three or four days would not treat the signed contract as an order. It appeared that the letter from Brightman to McGregor was sent by the next mail. The jury found for the defendant, and the plaintiffs alleged exceptions. Mr. W. A. Gile, for plaintiffs: The evidence was incompetent to contradict the express words of the contract. Ran Allen v. Furbish, 4 Gray, 504; Daris v. dall, 115 Mass. 547-551; Tower v. Richardson, 6 Allen, 351; Currier v. Hale, 8 Allen, 47. The evidence was not competent to prove an escrow, where the order was delivered to the plaintiffs or to their agent. Fairbanks v. Metcalf, 8 Mass. 237; Browning v. Haskell, 22 Pick. 310-312. An escrow is a conditional delivery to a stranger, and relates solely to conveyancing, and could not be applied in this case. Bouv. Law Dict. 10th ed.; 4 Kent, Com. p. 544, and cases cited. But this case comes within the rule as to notes and drafts as heretofore suggested, and, by those rules and the cases referred to, concludes the defendant from the defense testified to. See Tower v. Hale, supra. Richardson, and Currier v. Messrs. Rice, King, & Rice, for defendant: The testimony of the defendant was admitted, not to contradict or vary the written order, so called, but upon the preliminary inquiry as to the existence of any contract, and for that purpose it was competent. Watkins v. Bowers, 119 Mass. 383. The letter from Brightman to McGregor was also properly admitted, because it showed the defendant did exactly what was agreed he should do to prevent the papers being held in escrow, as it were,-becoming an order. Watkins v. Bowers, supra. Holmes, J., delivered the opinion of the court: The document addressed to the plaintiffs by the defendant purported to be an offer, not a contract, and it was not even an offer until delivered to the plaintiffs by the defendant's authority, express or ostensible. It was in no way contradicted by evidence that it was handed to McGregor with the understanding that he was not to forward it for three or four days, but was to hold it subject to the defendant's order, and to destroy it if the latter should make up his mind that he did not want the safe; for this evidence was only to the question of an authorized delivery. Watkins v. Bowers, 119 Mass. 383. It warranted a finding that McGregor held the document as the defendant's agent during the time mentioned, and, as in other respects he was the plaintiffs' agent in the transaction, that the plaintiffs had notice of the character in which he held and of the limits of his authority. Whether the case would have stood any differently, or would have fallen within the principle of White v. Duggan, 140 Mass. 18, if McGregor had been a stranger to the plaintiffs, we need not consider. It follows that the defendant's letter to McGregor, mailed the day after the document referred to was handed to him, was admissible to show that the defendant had exercised the right which he had reserved, if his testimony was to be believed, and in substance had forbidden McGregor to forward the order. Exceptions overruled. Mary TOWNSEND v. WEBSTER FIVE CENTS SAVINGS BANK. Where a depositor went to a savings bank and asked for the funds standing in her name on deposit, and the treasurer answered that she had no funds in the bank, it is a repudiation by the bank of the relation upon which its right to notice under its by-law was founded. (Worcester- -Filed January 4, 1887.) ON plaintiff's exceptions. Sustained. Action of contract for money had and ceived. The declaration was as follows: ant as trustee aforesaid on the 21st day of February, 1885, and execution issued thereon; that demand was made upon the said defendant by R. C. Hall, deputy sheriff, for the sum of $74.71 to satisfy said execution, which sum was paid to said Hall; that after satisfying said execution and deducting the sum of $24.24, the costs of the trustee in the aforesaid suit, and sums withdrawn, there remains in the hands of the defendant, with the dividends, the sum of $435.44, which sum the defendant is ready to pay to whom the same belongs, except as stated herein; the defendant denies each and every allegation contained in the plaintiff's writ and declaration." At the trial in the superior court before Bacon, J., it appeared that more than three months before this suit was brought the plaintiff went to the bank and asked the treasurer for the funds standing in her name, and that the treasurer replied that she had no funds in the bank, and the treasurer testified that he declined to pay the money to the plaintiff because the funds claimed were held by trustee process, and that if it had not been so trusteed he would have paid her. There was evidence, which was not in controversy, that the by-laws of the defendant bank provided that funds should be withdrawn from the bank without ten days' notice of such intention to withdraw the same, in writing, and when the sum is more than $200 said notice should be three months. It was not claimed that any notice in writing had been given by the plaintiff, but there was evidence tending to show that the bank had paid without notice such sums as the plaintiff had demanded. no The court directed a verdict for the defendant, and the plaintiff alleged exceptions. Mr. W. A. Gile, for plaintiff. Messrs. T. G. Kent and G. T. Dewey, for defendant: The statute law provides the only method for the depositor to obtain his principal deposit. Pub. Stat. 116, 29; Donlan v. Prov. Inst. for • Savings, 127 Mass. 183. Holmes, J., delivered the opinion of the court: There was evidence tending to show that the plaintiff went to the bank and asked for the funds standing in her name, and that the treasre-urer answered that she had no funds in the bank. If this evidence was true, the bank waived its right to the three months' notice required by its by-law; for, by denying that the plaintiff was a depositor in the bank, it repudiated the relation on which its right to notice was founded. Lowe v. Harwood, 139 Mass. 133, 136. "And the plaintiff says the defendant owes the plaintiff the sum of $600 for money had and received by the defendant to the plaintiff's use." The defendant in its answer set out that in "February, 1884, it had in its hands and possession the sum of $542.25, standing in the name of Mary Townsend, and the said funds were attached, and the defendant summoned in as trustee, in the suit of Henry J. Clarke v. John Townsend, as funds belonging to the said John Townsend but standing in the name of the said Mary Townsend; that said writ was entered and interrogatories filed from time to time and by the consideration of said court at the December Term, 1884, the defendant was charged as trustee of the said John Townsend; that judgment was entered against the defend The bank may waive the notice by implication. The answer admits a deposit in the name of the plaintiff. The plaintiff testified that the money was her own; and her husband, who seems to have been supposed by the bank to have been her principal and the then depositor, disclaimed the funds. This evidence fully warranted a finding that the plaintiff was the creditor of the bank. It follows that the court erred in directing a verdict for the defendant. Exceptions sustained. exceptions. Overruled. If the execution was authorized to be issued, there was no authority in law for the arrest of Croacher upon it without an affidavit. Pub. Stat. chap. 162, § 5. The recognizance showed no authority in Special Justice Milliken to take it. This was bad, and no suit can be maintained upon such ON defendant's except upon a recognizance a recognizance. taken before Frank A. Milliken, Esq., one of the special justices of the Third District Court of Bristol, at his office, on the 20th day of March, 1885, as security for Rodolphus J. Croacher, who had been arrested on an execution that had issued out of the court, March 11, 1885, in favor of the plaintiff against said Croacher, "as he is administrator of the goods and estate of Daniel B. Croacher, late of said New Bedford, deceased, for the sum of $33.71, costs of suit." At the trial in the superior court, before Barker, J., it appeared that there was no affidavit of the plaintiff, or any one in her behalf, upon the said execution, authorizing the arrest of said Croacher, and said Croacher was arrested by one Walter R. Spooner, a deputy sheriff of the county of Bristol, upon said execution, and taken before said Milliken as such special justice at his office, and not while the court was in session. It did not appear that the officer had any special instruction to arrest Croacher. Before the arrest, demand was made on said Croacher for the amount of said execution, and payment was refused. It did appear that the plaintiff had obtained a judgment upon a suit instituted by her against said Croacher, as administrator of one Daniel B. Croacher, for the sum of $587.50, and that this execution was for the costs of suit accruing to the plaintiff in said case. It was admitted that said Croacher did not deliver himself up for examination as required by the recognizance, and that demand was made on the defendant before bringing this suit; that Milliken was special justice when he took the recognizance. The defendant objected to said execution as improperly issued, and that the arrest of the said Croacher was unlawful and unjustified in law, and that Milliken had no authority to take and accept said recognizance; that the arrest was void, and said recognizance was void because of want of affidavit and instructions, and that said Milliken, as special justice, had no authority by virtue of his said office to take said recognizance at that time. And the defendant further claimed that no action can be maintained upon the same, and that said recognizance was void because it did not appear from said recognizance that said Milliken had any authority to act therein; and he objected to said recognizance. The court declined so to rule, but did rule Tarbell v. Gray, 4 Gray, 444; Patterson v. Goldsmith, 9 Gray, 258; Pierce v. Gray, 11 Gray, 377. It is not a question of pleadings. The court ruled that there "was no need of authority to be set forth in said recognizance of his authority to act in the matter." This was wrong. Vide cases cited above. Mr. W. C. Parker, for plaintiff: The execution was properly issued against the administrator personally, judgment having been obtained against him as administrator for debt and costs, and this execution being for the costs. Pub. Stat. chap. 166, § 8. No affidavit was necessary to authorize the arrest, the execution being for costs only, and running "against the goods, estate, and body of the administrator as if it were for his own debt." See statute just cited; also Pub. Stat. chap. 162, § 5. No special instruction to the officer to arrest was necessary. The execution contained an order of arrest, as all executions do in this Commonwealth (Dodge v. Doane, 3 Cush. 462); and no affidavit being required, the execution itself justified the arrest. Webber v. Davis, 5 Allen, 393, 397; Dooley v. Cotton, 3 Gray, 496. Milliken had authority to take the recogni zance by virtue of his office as special justice, and out of court, and at a time when the court was not in session. By Pub. Stat. 27, chap. 162, one of the magistrates enumerated, before whom the debtor, when arrested, must be taken, is some judge of a district court; not the judge, but any judge of a district court. A special justice of a district court "is in every sense a judge thereof." Commonwealth v. Hawkes, 123 Mass. 525, 529. And may take a poor debtor's recognizance as a magistrate acting in the performance of a ministerial act, under authority of said § 27. Clement v. Sargent, 100 Mass. 300. And such act would not be the act of a court, but of a public officer designated, in common with other officers who have no courts,--such as masters in chancery and commissioners of insolvency, to take recognizances of poor debtors. Pub. Stat. chap. 162, § 27; Underwood v. Clements, 16 Gray, 169. Not being a court act, but one which might be done by any one of several public officers, it could be performed at Milliken's office or elsewhere, and while the court was not in session. Dike v. Story, 7 Allen, 349; Underwood v. Clements, supra. Holmes, J., delivered the opinion of the court: The execution for costs was properly issued against the administrator personally (Pub. Stat. chap. 166, § 8; Look v. Luce, 136 Mass. 249); and no affidavit being required to justify an arrest upon it (Pub. Stat. chap. 162, § 5), it warranted the arrest without special instructions (Webber v. Davis, 5 Allen, 393, 397; Dooley v. Cotton, 3 Gray, 496). It was held in Dike v. Story, 7 Allen, 349, that a special justice could take a recognizance under Gen. Stat. chap. 124, §§ 9, 10 (Pub. Stat. chap. 162, §§ 27, 28), and that he could do it at other times than the regularly appointed sessions of the court. In that case, it is true, there was a disability of the justice, but we are of opinion that the authority of the special justice is not dependent upon that circumstance, or upon the provisions of Pub. Stat. chap. 154, $25 (Gen. Stat. chap. 116, § 22), as to holding court. The power is conferred, not upon the court, but upon some judge of the court, alongside of other officers who hold no court. A special justice is such a judge and therefore is embraced in the enumeration of Pub. Stat. chap. 162, § 27. See Clement v. Sargent, 100 Mass. 300; Commonwealth v. Hawkes, 123 Mass. 525, 529. Exceptions overruled. COMMONWEALTH of Massachusetts v. Webster SMITH. On a complaint for having in possession, with intent to sell, adulterated milk, the fact that the team of defendant, bearing his name and also his number, was at the corner of a public street and place in the city in the early morning, and that defendant's servant was on the wagon, and the collector of milk samples took from one of the cans a sample, furnished evidence against defendant of an intent to sell the milk, which was properly considered by the jury. (Suffolk Filed January 4, 1887.) ON defendant's exceptions. Overruled. Complaint under Pub. Stat. chap. 57, § 15, charging defendant with having in his possession in Boston adulterated milk, with intent unlawfully to sell the same. Trial in the superior court before Staples, J. The jury rendered a verdict of guilty, and defendant alleged exceptions. The facts and questions raised are sufficiently set out in the opinion. Mr. Samuel Hoar, for defendant: MASS. 20 a reasonable doubt, not only that the defendant, by his servant, had in his possession, in the county of Suffolk, milk which was below the legal standard, but was also bound to prove, beyond a reasonable doubt, that such possession was accompanied by the intent of the defendant to sell the same contrary to law. Commonwealth v. Certain Intoxicating Liquors, 105 Mass. 595. 46 When by common law, or by the provision of a statute, a particular intention is essential to an offense, *** it is necessary to allege the intent with distinctness and precision, and to support the allegation by the proof." Commonwealth v. Hersey, 2 Allen, 180. It is not sufficient, if the evidence tends to show that the servant had the unlawful intent, accompanied by the possession of the milk, where it is not the intent of the servant, but the intent of the defendant, which constitutes the offense charged in the complaint. Commonwealth v. Wachendorf, 141 Mass. 270. If this were a civil action, where the plaintiff must prove his case by preponderance of the evidence only, the evidence cited would not be sufficient to authorize the jury to find for him. Kendall v. Boston, 118 Mass. 234. Mr. Harvey N. Shepard, Asst. AttyGen., for Commonwealth: The court gave the ruling requested by the defendant upon the point of his (the defendant's) liability, if the milk had been adulterated after it had left the possession of the defendant. The addition to the exact ruling requested was in no wise in conflict therewith, but was rather in emphasis thereof, and wholly unprejudicial to the rights of the defendant. As there was no evidence whatever to sustain or necessitate such a ruling, the defendant's objection to the immaterial addition of the court cannot avail him. Commonwealth v. McCarthy, 119 Mass. 355. Devens, J., delivered the opinion of the court: Even if it be conceded that the milk which the defendant was charged with having in his possession with intent to sell was adulterated, it is the contention of the defendant-and this was the only point argued--that the case for the Government afforded no evidence of any intent on the part of defendant to sell, even if it were true that the milk was adulterated, and was in the possession of the defendant by his servant. The team of the defendant, bearing his name and being also numbered, was at a corner of a public street and place in the city in the early morning. The servant of the defendant was upon it; there were several cans in the wagon. From one of the cans (which was an eightquart can) the collector of milk samples took a sample, which was the alleged adulterated milk. The fact that the wagon was that of the defendant, the place where it was, the time when it was there, the different cans and the contents, the fact that the sample collector was permitted without objection from defendant's servant, who had the wagon and its contents in charge, to take a sample, furnished evidence against the defendant of an intent to sell the milk, which the jury was properly allowed to consider. Exceptions overruled 857 |