for our consideration. A confession obtained in this manner cannot be said, as matter of law, to be inadmissible, but must be left to the jury to be weighed and considered.

The registered copy of the deed to the New Haven & Northampton Company was competent evidence, as the deed was not in the control of the government, nor of the defendant, so that it could be produced on notice. Com. v. Emery, 2 Gray, 80. This deed, together with the testimony that the New Haven & Northampton Company had orally leased the building to the Williams Manufacturing Company was sufficient proof of the ownership and possession of the building alleged in the indictment. Exceptions overruled.

NOTE.

Evidence of confessions made to an officer by a defendant while under arrest are admissible if voluntarily made. People v. Abbott, (Cal.) 4 Pac. Rep. 769; State v. German, 54 Mo. 526.

The fact that defendant was under arrest does not necessarily prove that the declarations were involuntary. People v. Abbott, (Cal.) 4 Pac. Rep. 769.

Before a confession made to an officer can be received in evidence, it must be shown to have been voluntary. State v. Garvey, 28 La. Ann. 925.

A confession made to an officer will not be excluded from the jury merely because it appears that the accused was previously in the custody of another officer. Hopt v. People, 4 Sup. Ct. Rep. 202.

While the prisoner was under arrest for murder, and in shackles, he was taken to the place of the homicide, and was asked what he had done with the body, and he pointed to the hill where the dead body had been found. He was not cautioned as to the effect of an admission. The court held that all evidence of such action on the part of the defendant was improperly admitted. Nolen v. State, 14 Tex. App. 474.

The confession of an accused person while in the hands of his captors, not officers, and with a rope around his neck, is not free and voluntary, and is not admissible as evidence. State v. Revells, 34 La. Ann. 381.

Confessions made under arrest, though not voluntary or after warning, may be used in evidence to the extent that the accused made statement of facts and circumstances found to be true, and no further. Only so much of such confession is admissible as was indicative of verified and inculpatory disclosures. Massey v. State, 10 Tex. App. 615.

(140 Mass. 308)

(Franklin, ss.)

DAHILL v. BOOKER.

Filed November 30, 1885.

1. TROVER AND CONVERSION - MORTGAGEE TAKING PROPERTY FOR BREACH OF CONDITION IN CHATTEL MORTGAGE.

In an action of tort, by A. against B., for conversion of certain personal property, it appeared that one W., a mortgagee of the goods, took possession of them nearly a year and a half after the action was begun, for a breach of condition, and transferred all but certain articles to the defendant, B., to pay him for storage of the same for the previous year. The foreclosure was not complete at the time of the trial. Held, that the taking of the property by W. for breach of condition of his mortgage was an application of the property for the benefit of the plaintiff, and should be considered by the jury in mitigation of damages.

2. SAME-MAKING SECOND MORTGAGE-DAMAGES.

The making of a second mortgage, by a plaintiff mortgagor, in an action for conversion of the mortgaged property, after the date of the writ, is not an abandonment of any claim for damages, except for the taking of the property.

The material facts appear in the opinion.

J. A. Aiken, for defendant.

F. L. Greene, for plaintiff.

5 N.E.

HOLMES, J. This was an action of tort in the nature of trover. The defendant put in evidence to disprove the conversion. It also appeared that one Wheeler, a mortgagee of the goods, took possession of them, nearly a year and a half after this action was begun, for breach of condition, and transferred all but certain articles to the defendant to pay him for storage of the same for the previous year. Wheeler did not file notice in the town clerk's office of his intention to foreclose until some time afterwards, and within 60 days of the trial, so that the foreclosure was not then complete. "The defendant asked the court to instruct the jury that the taking of the property by Wheeler for breach of the condition of his mortgage was an application of the property for the benefit of the plaintiff, and should be considered by the jury in mitigation of damages; and that the plaintiff was entitled to damages only for the taking of the property and its detention up to the time it was taken by Wheeler for breach of condition of the mortgage. The court declined so to rule;" and the defendant excepted.

The instructions requested embodied more or less accurately familiar propositions of law, and, unless the transfer from Wheeler to the defendant took the case out of their operation, they should have been given in substance; for, apart from that transfer, the property necessarily came back to the plaintiff, or was applied to his use, as the result of Wheeler's taking. See Kaley v. Shed, 10 Metc. 317. If the plaintiff redeemed, he regained his possession, which, of course, would go in mitigation of damages, although after action brought. See Moon v. Raphael, 2 Bing. N. C. 310; Hanmer v. Wilsey, 17 Wend. 91. On the other hand, if the mortgage was foreclosed, the property went in satisfaction of the plaintiff's debt, and thus was applied to his use by his consent irrevocably given in the mortgage. Pierce v. Benjamin, 14 Pick. 356, 361; Squire v. Hollenbeck, 9 Pick. 551. See Higgins v. Whitney, 24 Wend. 379. It was not suggested that there was any diminution in the value of the property between the times of the conversion and of Wheeler's taking, so that we need not consider whether the second ruling requested would have been quite accurate in form, if that question had arisen. The sum paid to regain possession by redeeming is not to be treated as such a diminution. The liability to pay this sum was independent of the conversion, and was not like a reward paid to recover the goods in consequence of the defendant's conduct, as in Greenfield Bank v. Leavitt, 17 Pick. 1. See Cutting v. Grand Trunk Ry., 13 Allen, 381, 388.

The case is not affected by the transfer from Wheeler to the defendant. The plaintiff's possession and right of possession were put an end to by the breach of condition and Wheeler's seizure. Under such circumstances, it is settled that a mortgagor cannot maintain trover for a subsequent sale of all the mortgaged goods together by the mortgagee. Such a sale does not of itself import a repudiation of the mortgage, or determine the title under it. Landon v. Emmons, 97 Mass. 37; Wells v. Connable, 138 Mass. 513. See, further, Halliday v. Holgate, L. R. 3 Exch. 299; Donald v. Suckling, L. R. 1 Q. B. 585, 617; Mulliner v. Florence, 3 Q. B. Div. 484. It is true that, in this case, the goods seem to have been V.5N.E.no.3-32

separated, and a portion retained by the mortgagee, although the distinction left open in Landon v. Emmons was not adverted to in argument, and does not appear to have been before the mind of the parties, so that the bill of exceptions is somewhat obscure upon this point. But we do not think that this fact, if it be a fact, without more, can change the result. Such a separation may make the redemption more difficult when the plaintiff desires to redeem, which he does not seem to have done in this case. But we think that it would be going too far to say that this, in and of itself, necessarily amounted to a repudiation of the mortgage and mortgage title, if, indeed, it is possible to repudiate a vested legal title in like manner as a simple bailment may be repudiated, it is said, by acts inconsistent with its terms. 2 Roll. Abr. 556, pl. 9; Com. v. James, 1 Pick. 375, 386.

This is not a case where, the goods being worth more than the mortgage debt, a foreclosure sale purporting to be under the power is made of a portion sufficient to satisfy the debt, and then the residue is returned to the hands of the wrong-doer. Such a case might present different questions from those dealt with here.

The fact that the defendant was reinstated in possession by Wheeler's transfer to him cannot affect the rule of damages. For, even on the extravagant supposition that, for the purpose of preserving his claim against the defendant undiminished, the plaintiff should attempt to insist on redeeming without receiving back possession, the answer would be that, although it is a plaintiff's undoubted right to refuse to receive back converted goods from a defendant, if he prefers full damages, (Stickney v. Allen, 10 Gray, 352,) yet, if he should attempt to exercise a right under the mortgage, the defendant would be entitled to decline to receive the money except upon the terms of the mortgage, and that it is as much the defendant's right to restore the goods as it is the plaintiff's to receive them, when the mortgage debt is paid. See Warfield v. Fisk, 136 Mass. 219, 220.

The

The plaintiff made a second mortgage after the date of the writ. The defendant asked the court to instruct the jury that this was an abandonment of any claim for damages, except for the taking of the property and its detention up to that time; and also that it "was an act inconsistent with the claim of the plaintiff that the property was converted, and should be considered by them on the question of conversion.” court rightly declined to rule as requested. As a previous mortgage would not affect the amount of damages recovered, (Cram v. Bailey, 10 Gray, 87,) we do not see why a subsequent one should operate as an "abandonment." If the word is to be taken literally, the transaction was res inter alios, and could not have had that effect. On the question of conversion, the mortgage, if it tended to prove anything, tended to prove that the defendant was then in wrongful possession of the goods, by its description of them as "now in my saloon, * which William Booker occupies without right." But as the owner of chattels does not lose the right to sell or mortgage them by the fact that they are in the wrongful possession of another, (Hubbard v. Bliss, 12 Allen, 590, and

* *

5 N.E.

The Sarah Ann, 2 Sum. 206, 211,) his doing so does not tend to prove that they are not in such wrongful possession. Moreover, the evidence was in, and the defendant, whatever he had a right to argue, could not require the judge to single it out for remark. Littlefield v. Huntress, 106 Mass. 121, 127; Bugbee v. Kendricken, 132 Mass. 349, 354. Exceptions sustained.

TRUST-RESULTING TRUST-CONVEYANCE BY ASSIGNEE IN BANKRUPTCY WITHOUT CONSIDERATION.

A. was seized of certain premises, continuing in possession for 10 years. On December 23, 1868, bankruptcy proceedings were commenced against him, and on January 21, 1869, he was adjudged a bankrupt, and B. appointed assignee. A. was discharged March 6, 1875. On March 20, 1880, B. was removed as assignee, and C. appointed in his place. Bankruptcy proceedings were pending at the time of suit. On March 1, 1870, A. conveyed to D., for a consideration of $200, said premises, by deed which was recorded. On April 14, 1871, B. conveyed the said premises, as assignee of A., to D., by a quitclaim deed, duly recorded; a nominal consideration being recited, but none in fact having been paid. D. acted without fraud, and in good faith. Held, upon a writ of entry by C., that there was no resulting trust created by the fact that the assignee received no consideration in fact.

Writ of entry, by the plaintiff, as assignee in bankruptcy of one Frederick Perley, to recover a certain parcel of land in the town of Danvers. Plea, nul disseizin. At the trial in the superior court, before STAPLES, J., without a jury, the following facts appeared:

Perley was seized of the demanded premises, under a deed from one Pierce, dated April 1, 1859, and recorded on the following day, and had continued in peaceable possession of the same until the commencement of proceedings in bankruptcy against him, December 23, 1868. He was adjudged a bankrupt, January 21, 1869, and one Hadley was duly appointed assignee on February 10, 1869. Perley was discharged on March 6, 1875, and on March 20, 1880, Hadley was removed as assignee, and the demandant was appointed in his place; the bankruptcy proceedings are still pending. The court was not informed of the interest in the demanded premises of Perley, by Perley or Hadley, and no application was made to the court for leave to sell or dispose of the same in any manner. No account of the sale was made to the court, and no notice was given of the proceeds collected by Hadley from Perley. On March 1, 1870, Perley, in consideration of $200 actually paid to him by the tenant, executed to the latter a deed of the demanded premises, and the same was recorded July 15, 1870. The tenant immediately entered upon the premises, claiming title, and is still in possession thereof. On April 14, 1871, Hadley, as assignee of Perley, executed to the tenant a deed of the demanded premises, which was recorded August 31, 1871, the deed reciting a nominal consideration, but in fact no consideration whatever was paid by the tenant for such conveyance, and none has ever been accounted for as received from him. It was admitted by the demandant that the tenant acted without fraud, and in good faith. The present action was begun June 12, 1882. Upon these facts the court ruled that the title to the demanded premises was in the tenant, as against the demandant; and found for the tenant. The demandant alleged exceptions.

S. H. Phillips and W. H. Gove, for demandant.

H. F. Bidwell, for tenant, not called upon.

HOLMES, J.

The only argument addressed to us for the demandant is that there was a resulting trust because the assignee received no consideration in fact. But it is admitted that there was no fraud, and the deed of the assignee recited a consideration, declared the uses, and contained the covenants usual in a quitclaim deed. It is settled that, in such cases, there is no resulting trust. Gould v. Lynde, 114 Mass. 366, and cases cited. It is therefore unnecessary to consider whether St. 1883, c. 223, § 14, was intended to allow a writ of entry to be converted into a bill in equity by replication, where the answer is simply the general issue, as here. The special plea raised a distinct defense. Exceptions overruled.

(140 Mass. 573)

(Essex, ss.)

KRULEVITZ v. EASTERN R. Co.

Filed January 11, 1886.

1. MALICIOUS PROSECUTION-PROBABLE CAUSE-CONDUCTOR CAUSING ARREST OF PASSENGER FOR FRAUDULENTLY EVADING PAYMENT OF FARE.

A. bought a ticket of a railroad company at L., "good to S. and return.” He rode over the road to S., but returned by another route. On a subsequent day he went upon a train of the company at L., and offered the conductor, who knew him personally, said ticket, which was refused, on the ground that it was not good in that direction again. A. honestly believed that the ticket was good. He had no money with him, having spent all he had before taking the train; but told the conductor he would pay on his return at night from S., where he expected to collect a large sum of money; offering to leave the ticket as security. There was evidence that similar tickets had been taken by the conductor from other persons before. The plaintiff was arrested on arriving at S., and subsequently tried on a complaint charging him with fraud. ulently evading his fare, and acquitted. The conductor was acting under orders of the railroad company. Held, in an action of tort, for assault and false imprisonment, and for malicious prosecution, against the railroad company, that the company was liable if the conductor acted without probable cause and maliciously, and that there was sufficient evidence for the jury on these points.1

2. SAME-WANT OF PROBABLE Cause, and MALICE, ON Part of Agent, WHEN IMPUTED TO CORPORATION.

Want of probable cause, and malice, on the part of an agent of a corporation, in making an arrest, or causing an arrest to be made, if established, may be imputed to the corporation; but the honest and reasonable belief of the agent in the premises is a necessary element in determining upon the questions of probable cause and malice, and is a question for the jury.

Tort in two counts. The first count was for an assault and false imprisonment; the second count, for malicious prosecution. At the trial in the superior court, before GARDNER, J., evidence was offered for the plaintiff to prove that on July 5, 1884, the plaintiff, who was accustomed to go frequently from Lawrence to Salem, on business, bought, at the first-named place, a ticket of the defendant corporation, which read, "Lawrence to Salem and return," for which he paid one dollar; the price of a single ticket either way between the two places being 65 cents. Upon

1 For a full discussion of the questions of malicious prosecution, want of probable cause, and malice, and the like, see Heap v. Parish, (Ind.) 3 N. E. Rep. 549, and note, .552-557.