that all of said gaming apparatus and implements had by law become forfeited; and prayed that they might be burned or otherwise destroyed under the direction of the court, as provided by law. Upon this information the court ordered that an order of notice issue, and that the same be served on the within described persons personally, if known, and by posting up of an attested copy of said information and order on the building therein named; and an order of notice thereupon issued. On this order of notice, the officer made a return, stating that it had been complied with. William P. Higgins appeared as claimant of the property seized. The municipal court adjudged the property claimed, to be forfeited, and ordered its destruction, and the claimant appealed. At the trial in the superior court, before BLODGETT, J., the officer whose duty it was to serve the order of notice was shown a paper, and asked if the signature was his. He answered, "Yes." Then he was asked if he made any other paper which he would swear was a true and attested copy of the order of notice issued by the court. He answered that he made two copies only, which were alike, and that the one before him was one of them; that he gave one to a colored man, and the other he posted on the building. The claimant's counsel then offered the paper in evidence, for the purpose of showing that no true and attested copy of the order of notice issued by the court was ever posted on the building. The court excluded the evidence. The claimant objected to any evidence being offered to show that said rooms were resorted to for unlawful gaming at any time except the eighteenth of August, 1885, but the court allowed testimony tending to show that said rooms were resorted to for unlawful gaming at other times previous to said August 18th. The court submitted to the jury certain issues, which were answered in the affirmative; and upon the facts found by the jury, and the proceedings had in the municipal court, ordered a decree of condemnation and forfeiture to be entered, and the claimant alleged exceptions. D. F. Fitz, for claimant.

E. J. Sherman, Atty. Gen., for the Commonwealth.

BY THE COURT. The evidence offered by the claimant "for the purpose of showing that no true and attested copy of the order of notice issued by the court, was ever posted on the building" was properly rejected. The claimant, having appeared and pleaded in the municipal court, could not for the first time in the superior court, upon appeal, object that the notice of the information was not properly served. Com. v. Harvey, 111 Mass. 420; Com. v. Gregory, 7 Gray, 498.

One of the issues was whether the apparatus and implements seized by the officers were used, or kept and provided to be used, in unlawful gaming, or the place resorted to for the purpose of unlawful gaming. Pub. St. c. 212, § 2, cl. 7. Evidence that the rooms in question were resorted to for unlawful gaming at times previous to August 18, 1885, the day of the seizure, tended to prove that on that day the implements were kept for use in unlawful gaming, and was competent. Exceptions overruled.

(140 Mass. 481)

5 N.E.

COMMONWEALTH v. KEENAN.

Filed January, 1886.

1. CRIMINAL LAW-TRIAL JURY TAKING COPY OF Judgment.

By the words "a copy of the judgment," in Pub. St. c. 154, § 61, is meant such a copy of the record as includes the substance of the complaint and the judgment entered on it.

2. SAME-COPY OF COMPLAINT MISTAKE.

A. was tried on a complaint brought in the municipal court under Pub. St. c. 57, § 5, for selling adulterated milk, containing less than 13 per cent. of milk solids. At the trial, when the jury was about to retire, a paper was given it purporting to be a true copy of the complaint except that the word "thirteen" in the original appeared as "thirtee" in the copy. It is the practice to send up a copy of the complaint in addition to the substance of the charge which is contained in the copy of the judgment. The court fully instructed the jury as to what would constitute an adulteration under said statute, to which no exception was taken. Held, that it could not be presumed, without evidence, that the jury would take the law from the copy of the complaint, and that the mistake of writing "thirtee" for "thirteen" was not a material

error.

Complaint to the municipal court of Boston under Pub. St. c. 57, § 5, for selling adulterated milk, to-wit, milk containing less than 13 per cent. of milk solids. At the trial in the superior court, when the jury retired to make up its verdict, a paper was given to it which purported to be a true copy of the complaint, except that the word "thirteen" in the original appeared as "thirtee" in the copy which was handed to the jurors. No other paper was given to the jury, and at the time the paper in question was given to the jury neither the defendant nor his counsel had any knowledge that it was not a copy of said judgment, and it was not until after a verdict had been rendered that defendant's counsel learned of the fact and made a motion for a new trial on the ground that the paper was improperly submitted to the jury. There were only twoissues presented for the consideration of the jury: First, as to whether or not the milk in question contained less than 13 per cent. of solids, or more than 87 per cent. of water; and, second, whether or not it was in the possession of the defendant. The judge instructed the jury as to what would constitute an adulteration under the statute, and also what would be a possession by the defendant, and to these instructions no exceptions were taken by the defendant. At the hearing on the motion for a new trial, no evidence was introduced that said paper had or had not influenced the members of the jury, or been read by them, and the presiding judge overruled the motion. The jury returned a verdict of guilty, and the defendant alleged exceptions.

C. F. Paige, for defendant.

H. N. Shepard, Asst. Atty. Gen., and E. J. Sherman, Atty. Gen., for the Commonwealth.

FIELD, J. The motion for a new trial was addressed to the discretion of the superior court, unless upon the admitted facts, the defendant was entitled, as matter of law, to a new trial. Nichols v. Nichols, 136. Mass. 256. By the words "a copy of the judgment," in Pub. St. c.

154, § 61, is meant such a copy of the record as includes the substance of the complaint, and the judgment entered on it. A copy of the judgment, without the substance of the charge, would be unintelligible. An attested copy of the complaint was properly allowed to go to the jury. It seems that it is the practice to send up a copy of the complaint, in addition to the substance of the charge, which is contained in the copy of the judgment, in order that this copy of the complaint may be given to the jury, and that the jury may not be prejudiced by the judgment of the court below. Com. v. Crawford, 111 Mass. 422. See Com. v. Nash, 135 Mass. 541. The exceptions find that the "court fully instructed the jury as to what would constitute an adulteration under said statute," to which no exceptions were taken; and that the only issue on adulteration was (6 whether or not the milk contained less than thirteen per cent. of solids, or more than eighty-seven per cent. of water." By "solids" was of course meant "milk solids," and by "water," "watery fluid." It cannot be presumed, without evidence, that the jury would take the law from the copy of the complaint, and not from the court, or that, if they read the copy of the complaint, they would not detect the mistake of writing "thirtee" for "thirteen." The court below, in overruling the motion, must have been of the opinion that the defendant had not been prejudiced, and the mistake has no such tendency to mislead the jury that, as matter of law, a new trial should be granted. tions overruled.

Excep

1. GUARDIAN AND WARD-ACTION TO RECOVER SUM HELD IN TRUST FOR WARD —AUTHORITY OF GUARDIAN.

It is no defense to an action by a guardian to recover a sum held in trust for his ward that the probate court had no jurisdiction in the appointment of the guardian, where no want of jurisdiction appears on the record of the probate court.

2. SAME-RECOVERY OF INSURANCE MONEY.

One D. was a member of a mutual insurance company, and by the terms of the certificate held by him the sum of $5,000 was to be paid "to J. V., in trust for A. I. D.," the daughter of D. Before the death of D., the daughter went to Montreal to live, and continued to live there. The mother went to Lawrence, Massachusetts, and took up her residence; and D., the father, remained in Boston until his death, in 1884, when the amount guarantied in the certifi cate of insurance was paid to "J. V., in trust for A. I. D." W. F. G. was appointed guardian of the said A. I. D. by a probate court in Massachusetts, January 12, 1885. Held, in an action by W. F. G., as guardian, to recover of J. V. the amount paid under said certificate, that the defendant held the money sued for, upon a simple trust, with no interest or duty except to pay it over to the cestui que trust on demand, and that the objection that the probate court had no jurisdiction over the appointment of a guardian because the minor lived in Canada could not be taken, as the record of the probate court did not show any want of jurisdiction.

Contract, by a guardian in the name of his ward, to recover $5,000 for money had and received. The answer contained a general denial, and alleged that, in the appointment of the guardian, the probate court had no jurisdiction, as the ward was living in Canada at the date of such appointment. At the trial in the superior court, before STAPLES, J., Mary

5 N.E.

L. Derome was called by the plaintiff, and testified' that she was married to Thomas A. Derome at Medford, in 1877; that they afterwards went to Boston, where they lived together until November, 1881, when she left her husband, and went to Lawrence, where she was born, and had since resided there with her mother; that she went there with the intention of making it her home, and had ever since had such intent; that she and her husband had one child, the nominal plaintiff, then seven years old, who remained in her father's custody, in Boston, when the witness left him; that Wilbur F. Gile was appointed guardian of the child, at the witness' request, after the death of her husband, which occurred at Boston on October 11, 1884, in an insane asylum, where he had been confined for six or eight months. She testified, on cross-examination, that both before and since her husband's death she had endeavored to obtain the custody of the child; that she was informed by the defendant that the child was sent to a sister of her husband at a convent in Montreal, in 1882, where she had since remained; that the defendant told her that her husband had desired the child to be educated there; that she knew her husband had a sister, who was a member of an order, in charge of a convent at Montreal; that the child was sent there without the knowledge or consent of the witness; and the witness left her husband because he ill treated her. The plaintiff introduced in evidence a certificate of membership issued to Thomas A. Derome by the New England Relief Association, by the terms of which the association agreed to pay the sum of $5,000, within 60 days after due notice and proof of the death of Derome, "to John, in trust for Alphonsine Isabell Derome, daughter;" also a decree of the probate court dated January 12, 1885, appointing Wilbur F. Gile guardian of said child, "of Lawrence." The defendant admitted that on March 31, 1885, he received from said association the sum of $5,000, under said certificate, for which he gave a receipt. The plaintiff called Gile, who testified that in January, 1885, after his appointment as guardian, he made a demand upon the defendant for all the estate of his ward in the defendant's possession; that on April 14, 1885, he gave the defendant a certified copy of his appointment as guardian, and then demanded said $5,000; and that the defendant refused to comply with either demand. The plaintiff admitted that, at the date of said appointment, she had no estate in this commonwealth except her interest in said certificate; that Thomas A. Derome was a native of Canada, and came to this commonwealth about 15 years ago, where he lived down to the time of his death; and that when said certificate was issued, he was in the employ of the defendant. The judge ruled, as requested by the defendant, that the action could not be maintained, and directed a verdict for the defendant. The plaintiff alleged exceptions.

E. T. Burley, for plaintiff.

J. T. Wilson, for defendant.

C. ALLEN, J. Upon the conceded facts, the defendant holds the money sued for upon a simple trust, with no interest or duty except to pay it

MASS.DEC.1-6 N.E.-33

over to the cestui que trust on demand. Under such circumstances an action for money had and received lies to recover it. Gould v. Emerson, 99 Mass. 154-157; Johnson v. Johnson, 120 Mass. 466. The defendant denies the validity of the appointment of Gile as guardian, on the ground that the plaintiff was not an inhabitant of Massachusetts at the time when the appointment was made. But this objection cannot be taken in the present action, since no want of jurisdiction appears on the record of the probate court. Pub. St. c. 156, § 4. McFeely v. Scott, 128 Mass. 16. We need not determine, therefore, whether the plaintiff could properly be deemed an inhabitant of Canada. Exceptions sustained.

A husband and wife cannot enter into a partnership, under Pub. St. c. 147, § 2. 2. SAME-RENT OF STORE.

A. and B., his wife, carried on the business of keeping a store together, B. buying most of the goods, and being the principal manager. The fact of her being associated with her husband in the business was also advertised on the business cards of the concern. A., the husband, hired a store of the plaintiff, saying that it was for himself and wife. Held, that no action for the rent of the premises could be maintained against B., the wife, and that she was not liable as a partner therefor.

Contract against Amos C. Bradford and Henrietta Bradford, for rent of a store in Salem. At the trial in the superior court judgment, with stay of execution, was entered against Amos C. Bradford, who filed a suggestion of insolvency since the suit; and the trial proceeded against Henrietta Bradford, who was his wife. The plaintiff offered evidence tending to show that Amos C. Bradford called upon him with reference to hiring the store, and agreed as to price. The plaintiff also offered to prove that, at the time of the hiring, he asked Amos C. who was to occupy the store, and the latter replied that it was for himself and wife, and handed the plaintiff a card with the name of "Mr. & Mrs. A. C. Bradford" printed thereon, saying that that was the firm name under which they had been doing business at Barre, Vermont, and that under which they were now doing business; that Mrs. Bradford was not present during this conversation; that the plaintiff never had any talk with her about the rent, or as to responsibility; and that the terms of the hiring were agreed on at this interview. The plaintiff then offered evidence, which was admitted de bene, that, after the goods came to the store, Mrs. Bradford was there most of the time arranging and marking them, and giving directions concerning them to a clerk; that the defendants brought certain goods from Barre to Salem, putting such as were salable in the store, and storing the others at their residence; that Mrs. Bradford was frequently at the store, and, in the absence of her husband, made sales to customers; that the husband was often seen there; that Mrs. Bradford, while arranging goods at the store, gave directions for certain alterations to the gas fixtures and