divorce if the parties have never lived together as husband and wife in the commonwealth is not avoided by a transitory cohabitation here, but requires a domicile in the state. In Eaton v. Eaton, 122 Mass. 276, which, perhaps, can be upheld on its special facts, domicile without cohabitation was thought to satisfy the condition, and a divorce was granted. But, in Eaton v. Eaton, the court appears to have overruled the earlier decision of Schrow v. Schrow, 103 Mass. 574, where the parties seem to have been domiciled in Massachusetts, but it was held that their having lived in the state separately was not enough. We cannot escape from the literal meaning of the statute which is not satisfied with residence merely, but requires the parties to have "lived together as husband and wife." If the result is an unintended anomaly, the remedy is in the legislature. After a residence here for the statutory time the libelant may be entitled to his divorce under the law as it stands. Libel dismissed.

(143 Mass. 185)

SMITH V. OSBORN, Jr.

(Supreme Judicial Court of Massachusetts. Dukes. January 5, 1887.) SEAMEN-CONTRACT OF MASTER-BREACH OF-MASTER'S CLAIM FOR WAGES — RECOUP

MENT.

The damage resulting to the owner of a vessel by the discharge of her first mate, who leaves the vessel because of the departure of the master in violation of the terms of his contract, cannot be set up in recoupment against the master's claim for wages.

Contract to recover $3,000.

The master to whom the case was referred found the following facts: That the plaintiff was the owner of six sixty-fourths of the whaling bark Clarice, of Edgartown, and the defendant owned the remainder of said bark, and was its agent. The said bark sailed on her last whaling voyage in November, 1878, and was condemned and sold in St. Helena in the spring of 1882. This suit was brought to obtain a settlement between the parties, on account of their interest in said bark, for said voyage. The master also found that there was due the plaintiff from the defendant on account thereof, including interest to date of writ, September 7, 1883, the sum of $848.01. This did not include wages of defendant, who served as master of the bark during the first part of the voyage. Before sailing on the voyage, the defendant sold to the plaintiff the interest in the bark which he now holds for $2,000, and made with him a contract, by the terms of which the plaintiff was to go as master of the bark on a whaling voyage, right and sperm whaling; that Smith agreed to perform all the services as master for a certain proportion of the amount of oil and bone secured by the ship, and would perform the voyage in 42 months, said Smith to head his own boat the first part of the voyage, and always, unless his officers all proved to be of sufficient experience to do the whaling successfully, without detriment to the voyage.

The defendant claimed that the plaintiff broke his contract in leaving the bark before the expiration of 42 months. The master found that the plaintiff left the bark, and his employment as master thereof, at St. Helena, in March, 1881, and before the expiration of the 42 months. The plaintiff did not deny this, but claimed that he was justified in so leaving on account of the condition of his eyes, which he claimed incapacitated him to perform his duties as master. The master to whom the case was referred found that he did have trouble with his eyes, but that the trouble was not of such a nature as to incapacitate him from performing his duties as master, or to justify him in leaving the bark; and that his leaving the bark at St. Helena, in March, 1881, was a breach of that contract, and that the damage to the defendant in consequence was $300.

The finding of the amount of damage did not include the expenses to the defendant growing out of the discharge of the first mate, Anthony, who left at the same time with the plaintiff, which expenses were claimed by the defendant as damage to him resulting from the said breach of contract by the plaintiff. The facts in relation thereto were as follows: Anthony shipped at Edgartown for the entire voyage, not exceeding five years, and had no right by the terms of his contract to be discharged at St. Helena, or at any other place, before the termination of the voyage, except by mutual consent; but he was discharged, at his own request, at the time when the plaintiff left the bark. He made this request, and obtained his discharge, because the plaintiff left the bark, and for no other reason. The master ruled that the expense to defendant on account of his discharge was not a damage for which the defendant would be entitled to recoup against the plaintiff's claim on account of the plaintiff's breach of said contract.

Upon the whole case, the master found that, upon the account between the defendant and the plaintiff, there was due the plaintiff the sum of $848.01, together with interest from the date of the writ, amounting to $87.34, making, in all, $935.35; from this amount to be recouped the sum of $300, the damages due on account of the plaintiff's breach of contract.

After the master's report was filed, the report was amended by the filing' of the evidence of said Anthony, who testified that he left the ship as he got tired of her, and another man was coming to take her; that "she was all to pieces, from her water-line up."

Certain exceptions, taken to the master's report by the plaintiff, which are not material to the decision, were overruled in the superior court; as was also the exception taken to the master's report by the defendant, which was as follows: "Because the master did not allow, as damages in recoupment, the sum found by him to be the amount of damages sustained by the defendant in consequence of the discharge of the first mate, which discharge the master found was obtained because the plaintiff left the bark, and for no other reason.'" The final decree entered in the superior court, before STAPLES, J., after hearing, was that, in accordance with the finding of the master, the plaintiff be decreed to recover from the defendant the sum of $673.47, with costs. From the final decree the defendant appealed.

F. C. S. Bartlett, for defendant.

The master finds that the damage sustained by the discharge of the mate was $250, which should have been allowed. The captain had no right to discharge the mate when he did, without cause. Nieto v. Clark, 1 Cliff. 147; Hutchinson v. Coombs, 1 Ware, 65. It appears in evidence, and the master finds, that the mate was discharged "because the plaintiff left the bark, and for no other reason." It is submitted that, upon the evidence, the damage of $250 sustained by the mate's leaving was directly due to the wrongful act of the plaintiff in leaving the ship, and should be allowed the defendant. The plaintiff's writ is bad because it is neither in form a Dukes county writ, nor is it a Bristol county writ, returnable at Edgartown; but it is a writ signed by the clerk of the superior court for the county of Bristol, while it appears to have been issued at Edgartown, instead of at Taunton.

C. T. Bonney, J. N. Pierce, and A. B. Collins, for plaintiff. The master does not find that the mate broke his contract. He only finds that he was "discharged" at a foreign port, "at his own request," etc. The consent of the captain (the plaintiff) was the consent of the defendant, by the very terms of the latter's contract with the mate. The mate could not have been "discharged" so as to entitle him to the extra wages as damages, unless he was so discharged by a United States consul, under Rev. St. §§ 4580, 4582. Anonymous Opinion, 7 Op. Attys. Gen. 349.

The plaintiff had a right to discharge an officer, whether his term was to be long or short. Montgomery v. Wharton, 2 Pet. Adm. 397; U. S. v. Haines,

5 Mason, 272; U. S. v. Nye, 2 Curt. 227; U. S. v. Cassedy, 2 Sum. 582. See Goddard v. Barnard, 16 Gray, 208; Hadley v. Baxendale, 9 Exch. 341, 356; Benj. Sales, § 871; Add. Torts, 6, 1186; Com. v. Pierce, 138 Mass. 165, 176. We claim that, there being no allegation of special damage, those contended for are too remote, indirect, and inconsequential to be considered as damages. Loker v. Damon, 17 Pick. 284; Goddard v. Barnard, ubi supra; Sibley v. Hoar, 4 Gray, 222; Smith v. Sherman, 4 Cush. 408; Knapp v. Slocomb, 9 Gray, 73, 75; Parker v. Lowell, 11 Gray, 353; Adams v. Barry, 10 Gray, 361; Boyce v. Bayliffe, 1 Camp. 58; Vicars v. Wilcocks, 8 East, 3; Furlong v. Polleys, 30 Me. 491; Masterton v. Mayor, etc., 7 Hill, 61; Hunt v. D'Orval, Dud. (S. C.) 180.

But this act of a third party was itself an unlawful act, and an unlawful act of a third party is never an element of damage. Thomp. Neg. 1089; Tutein v. Hurley, 98 Mass. 211. The discharge, ipso facto, is not claimed to be a damage. Ashley v. Harrison, 1 Esp. 49; Add. Torts, 6.

GARDNER, J. The only question in this case presented to us is whether the act of the captain in breaking his contract, and leaving the bark at St. Helena, was the direct and consequential cause of the mate's procuring his discharge, and leaving her at the same place. The defendant contends that the amount of damages sustained by him in consequence of the discharge of the first mate of the vessel should be allowed the defendant, in recoupment against the plaintiff's claim, on account of the plaintiff's breach of his contract. The captain's contract with the owners was distinct and separate from that of the mate's with the owners. They were not connected, nor were they dependent upon each other. The master could have thrown up his contract, and it would have had no effect upon the mate's contract. The fact of the master's leaving the vessel may have remotely contributed to the mate's leaving; but this is not sufficient. "In general, the parties are deemed to have contemplated only the damages and interest which the creditor might suffer from the non-performance of the obligation in respect to the particular thing which is the object of it, and not such as may have been incidentally occasioned thereby." Poth. Obl. pt. 1, c. 2, art. 3. The discharge of the mate at St. Helena was not caused by the captain's leaving the bark in any such sense as to render the captain liable therefor. The damages to the defendant were not consequent upon the captain's leaving, and were too remote to be allowed in recoupment. The captain's breach of his contract was not the proximate cause of the mate's breaking his contract, or of his obtaining his discharge. Tutein v. Hurley, 98 Mass. 211; Goddard v. Barnard, 16 Gray, 205; Fox v. Harding, 7 Cush. 516.

Decree of superior court affirmed.

(143 Mass. 262)

KEITH and another v. KEITH and others.

(Supreme Judicial Court of Massachusetts. Plymouth. January 6, 1887.)

1. EQUITY-MULTIFARIOUSNESS-PARTIES-ACCOUNT-TRUSTEES.

A bill in equity against various parties, who are severally trustees, for the same purpose, of distinct parcels of land, and another party possessed of personal property held on the same trust, praying for an account and a division, cannot be maintained where each defendant denies the trust, although all the defendants are beneficially interested in each piece of real estate, and in the personal property. The claims are distinct, and cannot be joined in one bill.

2. SAME-ADMINISTRATRIX— HEIRS OF INTESTATE COPARTNERSHIP — INTERESTS OF EACH

DISTINCT.

The right of an administratrix to a share in the real estate of a copartnership in which her intestate was a member is distinct from the right of the heir of the intestate to a share therein, after copartnership debts are paid, so that the two cannot be joined as plaintiffs in a bill to enforce these rights.

Bill in equity by Lucy R. Keith, administratrix of the estate of Jonathan C. Keith, deceased, and Wallace C. Keith, against Hannah Keith, administratrix with the will annexed of Charles A. Keith, deceased, and S. Franklin Packard, trustee under said will, and against James C. Keith, and Mary C. Keith, minors, of whom said Hannah Keith is guardian, and who are the only heirs at law of said Charles A., deceased. Hearing in the supreme court, upon the defendants' demurrer, before DEVENS, J., who sustained the demurrer, and the plaintiffs appealed. The facts are stated in the opinion.

Edmund H. Bennett and Hosea Kingman, for plaintiffs.

The material allegations of the bill are: A partnership between two brothers in buying and selling real estate, farm produce, and various kinds of personal property; that the title to both real and personal property, so bought, was taken in various ways, etc. The bill has only one scope and object, viz., to obtain a complete and final settlement of this unique business arrangement, call it what you please,-partnership, association, joint enterprise, or what. Is this bill demurrable? A bill is not necessarily multifarious which claims only one general right, though different defendants may have separate and distinct rights or interests. Dimmock v. Bixby, 20 Pick. 368; Robinson v. Guild, 12 Metc. 323. See, also, Hamp v. Robinson, 3 De Gex, J. & S. 97, 108; Innes v. Mitchell, 4 Drew, 57; Ward v. Northumberland, 2 Anstr. 469. Inconvenience and confusion are generally the occasions of multifariousness. Here there are neither. Is there misjoinder of parties? Every party on this bill on both sides has in his or her possession, name, or control property belonging to the two estates. It would be more dangerous to omit any of these parties than to include them. If plaintiffs had a plain, adequate, and complete remedy at law, against how many persons must she bring suit at law? Not less than five.

Jonathan White and Robert D. Smith, for defendants.

The bill is multifarious in seeking, by one bill, the settlement of two successive firms, consisting of different individuals. Sanborn v. Dwinell, 135 Mass. 236. If Lucy, as administratrix, could bring a bill to settle the first partnership, it is plain that she could not join Wallace, as interested in that partnership or administration. Bush v. Clark, 127 Mass. 111; White v. Curtis, 2 Giay, 467; Cambridge Water-works v. Somerville D. & B. Co., 14 Gray, 193; Griffin v. Merrill, 10 Md. 364; White v. White, 5 Gill, 359. The bill is multifarious in that it joins several defendants having no common interest. Metcalf v. Cady, 8 Allen, 587, 589. The bill does not aver that any of the real estate held by the several defendants was purchased for partnership purposes, or stamped with a trust for the partnership. Goodwin v. Richardson, 11 Mass. 469, 475; Homer v. Homer, 107 Mass. 82, 86; Richards v. Munson, 101 Mass. 482, 484; Salvidge v. Hyde, 5 Madd. 138; reversed, Jacob, 151. See Bush v. Clark, 127 Mass. 111, and cases cited, as to plain, adequate, and complete remedy at law. The bill is wholly indefinite and insufficient in that it does not set out the property of either partnership, and does not offer to give up property held by the plaintiffs to be administered upon as partnership property.

HOLMES, J. This bill alleges two successive partnerships,-the first between Jonathan and Charles Keith; the second between the plaintiff, Jonathan's administrator, "using and representing the estate of said Jonathan," and the same Charles. So far as the plaintiff's responsibility is concerned, the latter partnership, of course, was between her personally and Charles. But Jonathan's next of kin could elect to follow the assets into his business, (Docker v. Somes, 2 Mylne & K. 655; Palmer v. Mitchell, 2 Mylne & K. 672, note; Heathcote v. Hulme, 1 Jac. & W. 122;) and it might be a question whether if, as is stated, the second arrangement was by consent of all parties interV.9N.E.no.7-36

ested, and the business was carried on without a break, as if Jonathan had not died, or as if his estate had taken his place, there would be any objection to taking the account of both firms in a single bill brought for that purpose. But that is not the scope of the bill before us. The bill alleges the death of Charles, leaving the plaintiff the surviving partner. It then sets forth that certain parcels of real estate were bought with partnership funds, and are partnership property, but for convenience the legal title of part was taken in the name of Charles, and part in the name of his son James, as well as a part in the name of Jonathan, and part in the name of his son Wallace, the other plaintiff in the bill. The bill also alleges that certain personal property belonging to the firm is in the hands of Hannah Keith, Charles' administratrix, and other personal property in the hands of his daughter Mary. The abovementioned James and Mary, Charles' children, and Hannah, his administratrix and his children's guardian, and also a trustee under his will, are made parties defendant. It is alleged that they all refuse to surrender or make division, and it is prayed that a division may be ordered. The accounts prayed are simply accounts to ascertain what property is in the hands of the defendants, severally, as preliminary to the division.

We suppose that Wallace, the son of Jonathan, is joined as a plaintiff on the footing of the Massachusetts rule that partnership real estate, so far as its conversion is not necessary to pay firm debts, or to adjust balances between the partners, will descend in the same way as if it had not been partnership property,-at law, if the legal title and beneficial interests correspond; otherwise, by way of resulting trust. Shearer v. Shearer, 98 Mass. 107. We take the allegations that the equitable title to one-half the real estate vested in Jonathan, and, after his death, in Wallace, to be inserted with this view, and not to be intended to contradict the averment that the land was partnership property. In this light, if the bill were brought by Wallace to establish a resulting trust in respect of land in the hands of one person, it might perhaps be proper to join Jonathan's administratrix as a party for the purpose of establishing a clear title, free of any partnership lien, supposing all debts to have been paid, and no such lien to exist in fact. But the claim of the heir to real estate not needed for the settlement of the partnership affairs, and the rights of the executrix and surviving partner to have or make such a settlement, are perfectly distinct. Still more plainly distinct are this right of the heir, and the right of a surviving partner, to receive the personal property of the firm. This bill simply puts these two last-mentioned rights side by side, and seeks to enforce one for the plaintiff and the other for the other.

It is to be observed that the plaintiff Lucy discloses no interest in the land either as administratrix or surviving partner, as it is not alleged that there are outstanding debts, or any other reasons for a sale and conversion. The bill seems to imply that there are no such reasons, although it does not allege the fact distinctly. But, supposing that this defect could be cured, the bill is multifarious, because it joins distinct claims against different defendants. If Wallace has a resulting trust in the real estate, his title is irrespective of the partnership; and the question whether James is to be charged with such a trust in respect of one parcel, has nothing in common with the question whether Hannah shall be charged with a similar trust in respect of another, or the trustee under Charles' will in respect of a third. Supposing that all the defendants were shown to be beneficially interested in each parcel, and therefore proper parties to a bill in respect of each, still that would not justify joining all the claims in one bill when the alleged trustees have no interest in common as trustees, and each of them repudiates and denies the trust. It is even plainer that the defendants who are alleged to have personal property in their posssession, have no common interests with the defendants who hold the land. See Sanborn v. Dwinell, 135 Mass. 236; Metcalf v. Cady, 8 Allen,