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contained concerning Mrs. Reilly. The defendant called the said scrivener, one Erastus W. Sanborn, who, on cross-examination, said that Moore, when he asked him to write the letter, said nothing about Mrs. Reilly; that he merely asked him to write to find out when the whisky tax was payable; and that anything beyond that in the letter he (Sanborn) was responsible for. The defendant testified that Mrs. Reilly owed him a certain debt, and relying upon the statements above mentioned, and believing from the above statements that Mrs. Reilly was the owner of the whisky, he caused the same to be attached by due process of law, and sold in satisfaction of said debt, which was the conversion relied upon.

The defendant asked the court to rule that if the plaintiff directed the writing of the above letter as it was written, knowingly received the above receipt without objection, and signed said order for delivery with full knowledge of its contents, and without objection thereto, or explanation thereof, and the defendant, in good faith, relying upon said statements, honestly believed that the said whisky had become the property of the said Mrs. Reilly, and, acting upon such belief, attached and sold the same as her property, that the defendant could set up such attachment and sale in whole or in partial defense to · this action, and that the plaintiff was estopped from denying that the whisky was the property of Mrs. Reilly; but the presiding judge ruled otherwise, and instructed the jury that, if the whisky was the property of the plaintiff at the time of the alleged conversion, the attachment and sale in the suit against Mrs. Reilly was no defense to the action, and that the plaintiff was not estopped from showing that the whisky was at said time his property, as said administrator, and not the property of Mrs. Reilly.

The defendant offered in evidence an absolute assignment, under seal, by the plaintiff, of all his right, title, and interest in and to this whisky, to one Vanderveer, before the commencement of this action, upon the back of which was a reassignment from said Vanderveer to the plaintiff, dated several months after the commencement of this action; but the presiding judge ruled that this was no defense to the action. The defendant offered evidence tending to show that, before the commencement of this action, the plaintiff sold and assigned the claim now in suit, and all his interest in and to this whisky, to the said Vanderveer; that said Vanderveer brought suit upon the said claim in New York; that said sale and assignment were still in force at the time this suit was brought; and contended that, if the jury should be satisfied of these facts, and that the plaintiff was prosecuting this suit for his own use and benefit as administrator, and not for the use and benefit of the said assignee, that he could not recover; but the presiding judge ruled that this evidence was immaterial, and, if believed by the jury, was not a bar to the action. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

G. A. Torrey, for defendant.

There are two questions in this case: (1) Is the plaintiff estopped by his statements that the merchandise was the property of Mrs. Reilly from claiming it as his own? (2) Can he recover for his own use and benefit as administrator, notwithstanding the assignment to another party? See Buckingham v. Hanna, 2 Ohio St. 551; Carr v. London & N. W. Ry. Co., L. R. 10 C. P. 316; Stonard v. Dunkin, 2 Camp. 345. It seems to us too clear that this comes within the ordinary doctrine of estoppel to require further argument. Knights v. Wiffen, L. R. 5 Q. B. 660; Chapman v. Searle, 3 Pick. 38; Drury v. Wyman, 14 Pick. 326; Ladrick v. Briggs, 105 Mass. 508; Fay v. Valentine, 12 Pick. 40; Platt v. Squire, 12 Metc. 494; Hinchley v. Greany, 118 Mass. 595. It has been universally held that an administrator is estopped in precisely the same way as though he had been acting in his private capacity. Stone v. Gilman, 58 N. H. 135; Mardis v. Mardis, 13 La. Ann. 236; Waring v. Purcell, 1 Hilí. Eq. 193; Calanan v. McClure, 47 Barb. 206; Rice v. Bizler, 1 Watts & S. 445; Bragg v. Massie, 38 Ala. 89; Bell v. Craig, 52 Ala. 215; Masterson v. Pullen, 62 Ala. 145; Du Val v. Marshall, 30 Ark. 230; Camp v. Moseley, 2 Fla. 171; Ponder v. Moseley, Id. 207; Thomas v. Brooks, 6 Tex. 369. According to the law in New York, the assignee may bring a suit in his own name, and had actually done so in this case. Goodrich v. Stevens, 116 Mass. 170. The assignment suspended the plaintiff's right of action. Clark v. Parker, 4 Cush. 361; Eaton v. Mellus, 7 Gray, 572; Chapman v. Haley, 43 N. H. 300; Kimball v. Huntington, 10 Wend. 675; Upton v. Moore, 44 Vt. 552. A release by the assignor, after notice to the debtor, will not discharge the claim. Moore v. Coughlin, 4 Allen, 335.

S. J. Thomas, for plaintiff.

There was actually no evidence whatever to which this prayer of instructions was applicable, and the instruction that, if the whisky was the property of the plaintiff at the time of the alleged converson, the attachment and sale of it in the suit against Mrs. Reilly were no defense to this action, was quite correct. The assignment of the bill for the purpose of a suit in New York, and the reassignment to the plaintiff, were immaterial in this action. Moore v. Coughlin, 4 Allen, 335; Foss v. Lowell Five-cents Sav. Bank, 111 Mass. 287.

FIELD, J. If the pendency of another action for the same cause of action, in another state, can be pleaded at all, it can only be pleaded in abatement. The defendant did not plead this in abatement, but in bar, and the substance of his plea in bar would not have been a good plea in abatement. Besides, the exceptions do not show that the suit in New York was pending when this suit was brought. Newell v. Newton, 10 lick. 470; Colt v. Partridge, 7 Metc. 570; Merrill v. New England Ins. Co., 103 Mass. 245.

If the plaintiff had assigned his chose in action to Vanderveer, Vanderveer could sue in this commonwealth only in the name of the plaintiff. The assignment was not a defense. If the defendant proved an assignment, and that the plaintiff had no beneficial interest in the cause of action, and that the bringing of the suit, or its prosecution, had not been authorized by the assignee, the action might have been dismissed on motion; but it is doubtful if these facts could be pleaded in bar, because they are not an answer to the action on its merits, although they show a reason why the plaintiff should not be permitted to prosecute the action. The evidence offered by the defendant which was rejected did not tend to prove all these facts. The evidence offered by the defendant which was admitted showed a reassignment from Vandeveer to the plaintiff, made after the commencement of this suit. If the suit was begun by the plaintiff while the assignment was in force, and without the authority of the assignee, the assignee could subsequently ratify the bringing of the suit; and, if he reassigned the chose in action to the plaintiff, the plaintiff could thereafter prosecute the suit for his own benefit. The defendant did not show, or offer to show, that the suit was prosecuted at the trial by one who had no authority to prosecute it.

It is a sufficient answer to the defendant's contention, concerning estoppel, that the evidence, taken most favorable for him, does not tend to show that the representations that the whisky belonged to Mrs. Reilly were made by the plaintiff with the intention of inducing the defendant to give credit to Mrs. Reilly, or to attach the whisky as her property. The attachment apparently was something entirely foreign from anything which the plaintiff contemplated, or which the defendant could reasonably suppose he had in mind, and there is no evidence that the defendant gave Mrs. Reilly credit on the faith of these representations. The instruction requested omits these elements of estoppel. Freeman v. Cooke, 2 Exch. 654; Zuchtmann v. Roberts, 109 Mass, 53; Carr v. London & North W. R. Co., L. R. 10 C. P. 316; Brant v. Virginia Coal & Iron Co., 93 U. S. 326.

Exceptions overruled.

NOTE. ESTOPPEL. Representations cannot operate as an estoppel, unless made with the intention of influencing the party to whom they were made, or were reasonably likely to influence him. Newman v. Mueller, (Neb.) 20 N. W. Rep. 843; Robb v. Shepard, (Mich.) 15 N. W. Rep. 76; Sutton v. Wood, (Minn.) 7 N. W. Rep. 365; Van Eter v. Crossman, (Mich.) 4 N. W. Rep. 216; Parliman v. Young. (Dak.) 4 N. W. Rep. 139; Coleman v. O'Neil, (Minn.) 1 N. W. Rep. 846; Dyer v. Scalmanini, (Cal.) 11 Pac. Rep. 327; Page v. Smith, (Or.) 10 Pac. Rep. 833.

(143 Mass. 449)

TACEY V. NOYES. (Supreme Judicial Court of Massachusetts. Middlesex. January 21, 1887.) 1. BASTARDY-COMPLAINT-CERTIFICATE.

The words, “the voluntary complaint,” etc, “taken on oath before the justice of the police court of Lowell,” contained in a complaint under the bastardy act, are not inconsistent with its being sworn to either in or out of court; and the fact that the certificate attached to the complaint recites that the complaint was sworn to “before said court," and was made by the clerk, raises a presumption that this was

done in court, in which case the clerk is the proper person to make the certificate. 2. SAME-EVIDENCE OF COMPLAINANT'S ACCUSATION OF DEFENDANT-DELIVERY OF CHILD.

At a trial of a complaint under the bastardy act, testimony of the complainant's accusation of the defendant is competent, where it appears that the accusation was made after the child was born, but before the umbilical cord was cut. Complaint under the bastardy act, (Pub. St. c. 85,) to the justice of the police court of Lowell, alleging that the complainant was then pregnant with child, which, if born alive, would be a bastard, accusing the respondent with being the father of the child. At the trial in the superior court, before BLODGETT, J., the defendant moved to dismiss the complaint because (1) it was irregularly received and sworn to; (2) because it appears by said complaint that the same was made before the justice of the police court in Lowell, and therefore the said justice, and not the clerk of said court, ought to have made the certificate of its being sworn to; (3) because it does not appear that the said complaint was properly received and sworn to, either before said police court, or the justice thereof, or any person or court having authority to receive the same. The court overruled the motion.

One of the complainant's witnesses, Barttell, testified that on March 3, 1886, he was, and had been for some years, a practicing physician; that he was called to attend the complainant, and found her in labor pains, and that, in answer to his question, she said that the respondent had begotten her with the child with which she was pregnant. Barttell further testified that he was called again the next day, and that, when he reached complainant, the child was born, but that the umbilical cord had not been cut; that before he cut the cord he asked her if she made the same statement then that she had before, that respondent was the father of the child, to which she replied that she did. The respondent was not present at this conversation, and he objected to this testimory, claiming that the complainant was not then in the time of her travail, and that she had then been delivered of the child. The court allowed the testimony, and respondent alleged exceptions.

J. Crowley, G. A. A. Pevy, and T. 8. Lilley, for respondent.

The motion to dismiss ought to have been allowed. The police court of Lowell was established by St. 1833, c. 64, continued by Rev. St. C. 87, Gen. St. c. 116, and Pub. St. c. 154, SS 4, 5. The justices have, in general, like authority and powers. In every sense they are all judges of the court. Com. v. Hawkes, 123 Mass. 525. See Pub. St. c. 85, § 1. It will be observed that the term court, as distinguished from justice or trial justice, is used throughout this section. Pub. St. c. 154, § 22. A complaint of this character may be made to the police court of Lowell, or when the court is not in session, to any one of the justices thereof. Com. v. Hawkes, supra; Ex parte Gladhili, 8 Metc. 168; Pub. St. c. 87, § 11; Id. c. 162, SS 1, 27; Id. c. 161, § 122. If the

complaint had been made during the session of the court, it would then have been the duty of the clerk to make the certificate, but not otherwise. Richardson v. Burleigh, 3 Allen, 479. As to the testimony of Bartlett, see Pub. St. c. 85, § 16, consulting the entire section above quoted, the time of travail inust be deemed to cease with the birth of the child, and an accusation made thereafter cannot be put in evidence. Bacon v. Harrington, 5 Pick. 63; McManagil v. Ross, 20 Pick. 105. The evidence tended to establish a proposition, in fact an allegation, in the complaint, which, if proved to the satisfaction of the jury, must have been decidedly prejudicial to the respondent.

N. D. Pratt and E. B. Quinn, for complainant.

The motion to dismiss the complaint was properly overruled. There is nothing in the case to warrant the implication that the complaint was not properly sworn to before the police court, during a session thereof. It is to be presumed that the court was in session, and the proceedings in all respects regular. Richardson v. Burleigh, 3 Allen, 479; Hyde v. Malley, 121 Mass. 388; Sabins v. Jones, 119 Mass. 167. Even if irregular, the appearance of the respondent before the court which issued the warrant, and his giving bond for his appearance before the superior court, without raising objections to the intermediate proceedings, cured any defect in such proceedings. Collins v. Conners, 15 Gray, 49. The evidence of Bartlett was properly admitted. We submit that it cannot be held that the respondent had been “delivered” of the child until the umbilical cord had been severed. It is worthy of note that in Bacon v. Harrington, 5 Pick. 63, presumably relied on by the respondent, while it there appears that the accusation was made before the removal of the after-birth, still it does not appear but that the child had before then been separated from the mother by severing the umbilical cord. No exception lies to the ruling permitting testimony, on cross-examination, as to the character of the business at respondent’s hotel.

C. ALLEN, J. The defendant introduced no evidence to show that, in point of fact, the complaint was sworn to before the justice of the police court when the court was not in session, but contends that this must be assumed from the language of the complaint itself, the words being: “The voluntary complaint, etc., taken on oath before the justice of the police court of Lowell.” These words are consistent with its being sworn to either in court or out of court; and, if sworn to in court, the clerk was the proper person to make the certificate. From the fact that the certificate was made by the clerk, and that it recites that the complaint was sworn to “before said court,” a presumption arises that this was done in court. Richardson v. Burleigh, 3 Allen, 479; Sabins v. Jones, 119 Mass. 167.

The testimony of the complainant's accusation of the defendant was competent. At the time the accusation was made she had not been completely delivered of the child, within the meaning of Pub. St.c. 85, § 16. In Bacon v. Harrington, 5 Pick. 63, the accusation apparently was made at a later time than in the present case. Exceptions overruled.

(143 Mas. 453)

WOOD 0. REMICK. (Supreme Judicial Court of Massachusetts. Middlesex. January 25, 1887.) AGISTMENT INJURIES TO CATTLE-BURDEN OF PROOF-DUE CARE-INSTRUCTIONS TO JURY.

One who takes cattle to pasture is bound to use reasonable and ordinary care to protect them from injury; and, if a plaintift claims that his cattle were injured by the negligence of the agister, the burden of proof is upon him to show such negligence, and the refusal of the judge at the trial to give an instruction which is a contradiction of this rule is no ground for exception. Contract to recover of the defendant the value of a heifer which the defendant agreed to pasture. At the trial in the superior court before BLODGETT, J., it was admitted that the defendant received the heifer at Melrose, in this commonwealth, and that he was to drive it to Groton, New Hampshire, pasture it there during the summer, and drive it back to the plaintiff in the fall, for an agreed price to be paid by the plaintiff. The plaintiff sought to maintain the action on two grounds: First, that the defendant promised to return. the heifer to the plaintiff in the fall, or to pay what it was worth if he did not return it; and, second, on the ground that, in pasturing said heifer, the defendant was negligent, and that by reason of such negligence the heifer was killed. The defendant received the heifer in the spring, drove it to Groton, with other stock, and kept it in his pasture of about 300 acres with about 75 other heifers and cows, until some time in October, when it was found in the pasture, dead. The plaintiff offered evidence tending to show that the defendant said that the heifer was killed by wild steers or wild animals which got into the pasture. The defendant denied that he said this, and offered evidence tending to show that the death of the heifer was caused by her having been cast; and the defendant also offered evidence tending to show the character of the pasture,-how it was fenced, how often he saw the heifer and the other stock in the pasture, and what care he took of them. As applicable to the second ground on which the plaintiff relied in support of the action, the court gave to the jury full instructions as to the degree of care the defendant was bound to use in pasturing said heifer, and to these instructions the plaintiff did not except. The court also instructed the jury that the burden was upon the plaintiff to prove that the death of the heifer was caused by the failure of the defendant to use proper care. The plaintiff requested the court to instruct the jury “that if the jury found that steers or wild animals got inside the pasture, and killed the heifer, or if cows in said pasture did or caused injuries, the defendant would be liable.” The court refused to give this instruction. The jury found for the defendant, and the plaintiff alleged exceptions.

A. V. Lynde and W. P. Harding, for plaintiff.

It was the defendant's duty, under his contract, to return the heifer to the plaintiff. If, as a reason for avoiding the contract, the defendant claimed the inability to perform his contract by reason of the death of the heifer, he should have also proved some "act of God,” or that the death was not caused by his want of due care. Cass v. Boston & L.R. Co., 14 Allen, 448; Alden v. Pearson, 3 Gray, 348; Platt v. Hibbard, 7 Cow. 497; Collins v. Bennett, 46 N. Y.490. See Brown v. Waterman, 10 Cush. 117.

Whether the loss or death was caused either as the plaintiff or as the defendant claims, the liability of the defendant, under his promise to the plaintiff, is none the less. Harvey v. Murray, 136 Mass. 377; Drake v. White, 117 Mass. 10; Maynard v. Buck, 100 Mass. 43; Lane v. Boston & A.R. Co., 112 Mass. 462.

A. H. Briggs, for defendant.

Exactly the same care was required in this case-ordinary care—such care as a prudent man would take of his own property—as is required of a bailee for hire, and in such case the worst that can be held against him is that he is to account for the property destroyed, and then the burden is on the bailor to show negligence. The defendant relies on the reasonableness of the instructions, and deems it sufficient to cite 1 Pars. Cont. (3d Ed.) 606, and note; Id. 603, 611.

1

BY THE COURT. A man who takes cattle to pasture is bound to use reasonable and ordinary care to protect them from injury. If a plaintiff claims that his cattle were injured by the negligence of the agister, the burden of proof is upon him to show such negligence. In the case at bar the court, therefore, rightly ruled that, under the plaintiff's second count, the burden was upon her. The instructions requested by her are in contradiction of this rule, and were rightly refused. Exceptions overruled.

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