5 N.E. ties is entirely immaterial, and one party could not defeat the contract of sale by showing that he was mistaken as to the identity of the other. In any case where the question of identity is material, a party is estopped by his dealing with the other party from setting up his mistake as to the identity of the other. If A. deals with B., without any inquiry as to his identity, and in consequence of the dealing B.'s position is changed, as a general rule A. would be estopped from setting up that he supposed he was dealing with another person, and thus defeating the contract. Stoddard v. Ham, 129 Mass. 383; Edmunds v. Merchants' Dispatch Transp. Co., 135 Mass. 283. In the case at bar the mistake of the defendants as to the person with whom it was dealing was immaterial. It did not in any way affect the character and extent of the risk, and it was not shown that there were any equities or relations between the parties which would make it of any consequence to the defendants whether they were insuring the individual, Charles W. Clement, or the firm of that name. The firm acted and relied upon the insurance as valid, and it would be a hardship and injustice if the insurance could be defeated because the defendants had an understanding, not communicated to the plaintiff, that they were insuring the individual, Clement. Upon the facts of this case we are of the opinion that the innocent omission by Clement to disclose to the defendants the fact that the name "Charles W. Clement" was used, and intended to be used, as the name of the firm, did not prevent the contracts from taking effect or avoid them. The instructions requested do not contain any element of fraud or intentional concealment on the part of Clement, and were rightly refused. 9. The policies in suit are valid policies to the firm, and for the benefit of the firm. Therefore the plaintiff is entitled to recover the full value of the loss, and the court properly refused to instruct the jury, as requested by the defendants, that the plaintiff could recover only the value of the interest of Clement in the property. 10. The instruction requested, that the report of the auditor "is not entitled to great weight," was properly refused. The statute makes the auditor's report prima facie evidence upon the matters embraced in the order to him. The court could not properly express any opinion upon its weight, which was a matter entirely for the consideration of the jury. Pub. St. c 154, § 51. 11. The defendants asked the court to instruct the jury that "the result of an auction sale of the goods, damaged or undamaged, without separation, is not admissible as evidence tending to show the amount of loss for which the insurers are liable." This was properly refused, because it assumes facts not proved. There was conflicting evidence as to whether any material part of the insured goods were undamaged. We have already held that the auction sale was competent, not as a test, but as evidence, the weight of which was for the jury. The presiding justice rightly left the weight to be determined by the jury, who alone have the right to decide whether any, and, if any, how many, of the goods were undamaged, and whether, upon the facts proved to their satisfac tion, an auction sale was a proper step or not, and whether its result was of any aid to them in deciding the issues in the case. We have considered all the questions raised by the bill of exceptions which the defendants insisted on in their argument in this court, and the result is that none of them can be sustained. Exceptions overruled. NOTE. For a full discussion of the obligation, in contracts of insurance, of an agreement, in case of loss, to refer or submit to arbitration, see Uhrig v. Williamsburg City Fire Ins. Co., (N. Y.) 4 N. E. Rep. 745, and note, 747. A provision in a policy of fire insurance that, in case any difference of opinion shall arise as to the amount of loss, it shall be referred to arbitrators to be chosen as therein directed, is not a condition precedent to a recovery for a loss, or to any proof, on the trial, of the amount of the loss. Crossley v. Connecticut Fire Ins. Co., 27 Fed. Rep. - (141 Mass. 454) (Suffolk, ss.) REED and another v. BOSTON MACH. CO. CUMMINGS v. Same. A. T. MANDELL v. SAME. BUTLER v. SAME. COTTON v. Same. FISKE V. SAME. HUNT v. SAME. KEHEW v. SAME. Filed April 1. 1886. INSOLVENCY-PROOF OF CLAIM-WORTHLESS STOCK OF CORPORATION. The plaintiffs received special stock in the B. M. Co., which was illegally issued, and received dividends thereon. The stock was invalid, and nothing could be done by the corporation to make it valid. Held, that the plaintiffs were not bound to return the certificates of shares, which were valueless, and might prove against the insolvent estate of the B. M. Co. the amount paid by them for the special stock, without interest, deducting the dividends received. Appeals by the assignees in insolvency of the Boston Machine Company, a manufacturing corporation established under the General Laws of this commonwealth, from decrees of the court of insolvency for said county, allowing the claims of the various plaintiffs. The claims were all for money paid by the several claimants for special stock of said company, which was declared to be invalid in the case of American Tubeworks v. Boston Mach. Co., 139 Mass. 5. Said certificates were in the following form: No. BOSTON MACHINE COMPANY. "200 Shares. Special Stock. Par Value, $500. is proprietor of Shares. "This is to certify that shares in the special stock of the Boston Machine Company, subject to the by-laws, the same being transferable by assignment in the books of the corporation upon a surrender 5 N.E. of this certificate. Said special stock is redeemable at par after the first day of July, 1885, and is entitled to a fixed half-yearly dividend of three and a half per centum. "In witness whereof, the president and treasurer have caused the seal of said company to be affixed, and have attested the same by their signatures. "Boston, 188-. 66 9 Treasurer." President. At the hearing in the superior court, before KNOWLTON, J., without a jury, it appeared that there was no offer, by any of the plaintiffs, to rescind or return the certificates of special stock, or the dividends received thereon, before the filing of the petition in insolvency by the company, which took place May 12, 1883, or their offer to prove their claims in insolvency, and the only objection made at the hearing, to the allowance of the claims, was for this reason. When the plaintiffs took their certificates of stock, and received the dividends, both the corporation and they supposed the stock was valid. In each case the certificates of special stock were attached to the proof of claim, with an offer to return the same, and they are still on file in the court of insolvency. All the proofs were allowed by the insolvent court for the amounts claimed, and the assignees in insolvency of said company duly appealed to the superior court. Upon the foregoing facts the presiding judge found for the plaintiffs, for the amount claimed by each, which in each case was the amount paid by the plaintiff, with interest, after deducting the sums paid as dividends; and at the request of the parties the cases were reported to the supreme judicial court for the determination of the questions of law involved. E. H. Bennett, for certain plaintiffs. J. H. Benton, for defendant. In that case, stock, and of C. ALLEN, J. These cases are virtually covered by the decision in American Tube-works v. Boston Machine Co., 139 Mass. 5. to be sure, the plaintiff made an election to repudiate its fered to return it, before the adjudication in insolvency. Under the circumstances then existing, this was a fact of some importance, because, as stated in the opinion in that case, "this special stock might have been made good, so that the plaintiff would be content or be bound to keep it." But in the present case the time for doing this had passed. The stock was invalid, and nothing could be done by the corporation to make it valid. It was no longer possible to make the plaintiffs stockholders by estoppel. Under these circumstances, there was no occasion for the plaintiffs to return their certificates of shares, which were valueless; or the dividends which they had received, which were less than the sums they were entitled to receive, the stock being and remaining invalid. See the former case, and also Brewster v. Burnett, 125 Mass. 68; Kent v. Bornstein, 12 Allen, 342. In Allen v. Herrick, 15 Gray, 284, the plaintiff had received and held notes, indorsed by another party, for the dividends. The sums for which the plaintiffs are respectively entitled to prove their MASS.DEC.1-6 N.E.-42 claims are, the amounts paid by them for the special stock without interest, which, if not insisted on, would not run till after a demand, deducting the dividends received. Judgment to be entered accordingly. (141 Mass. 479) (Essex, ss.) SHEPARD V. CITY OF LAWRENCE. Filed April 9, 1886. MUNICIPAL CORPORATIONS-LAWRENCE CITY-CLERK'S FEES. The plaintiff was city clerk for the defendant's city for several years, at a fixed salary, with provision that he should "account for all moneys received by him in his official capacity." Held, that fees received by him for recording marriages and deaths were received in an official capacity, and form part of the aggregate compensation which he was to receive, and which might be limited under Pub. St. c. 32, §§ 11, 12. Also held, that fees received by the plaintiff under Pub. St. c. 102, §§ 80-84, and retained by him from moneys paid for licenses for dogs, should not be deemed money received by him, in his official capacity, within the meaning of the resolution of the city council fixing his salary as city clerk. The facts appear in the opinion. A. C. Hore, for defendant. C. A. De Courcey, for plaintiff. W. ALLEN, J. The plaintiff was city clerk for the defendant city for a series of years, and brings this suit to recover the amount allowed to him by statute for recording marriages and deaths during that time. During the whole time he had a fixed salary as city clerk, with provision that he should "account for all moneys received by him in his official capacity." It has always been the official duty of town and city clerks to record deaths and marriages. The records are town or city records, and are evidence, in legal proceedings, of the facts recorded, and the certificate of the clerk is evidence of the record. The specified fees are to be paid to the clerk of the town or city under the proviso "that a city or town containing more than ten thousand inhabitants may limit the aggregate compensation allowed to their clerk." Pub. St. c. 32, §§ 11, 12; St. 1795, c. 68. Fees received for these services are received in an official capacity, and form part of the aggregate compensation, which may be limited under the statute. The contention of the plaintiff that the statute intends that the aggregate of fees only shall be limited, cannot be sustained. The statute clearly authorizes a fixed salary, which shall include official fees which the town or city is required by the statute to pay. The defendant has signed a declaration in set-off, to recover the amount retained by the plaintiff from money paid for licenses for dogs. The statute requires that every dog shall be annually registered and licensed in the office of the clerk of the city or town where it is kept, and a fee paid therefor. The clerks of cities and towns are required to issue licenses, and receive the money paid therefor, and pay the same into the treasury of the county, "retaining to their own use twenty cents for each license." Pub. St. c. 102, §§ 80-84. The plaintiff issued many licenses, and has 5 N.E. not accounted to the defendant for his fees retained. The licenses were not granted by the city, and the license fees belonged to the county, and the plaintiff, in collecting and paying them over, acted for the county. rather than for the defendant. The city clerk was designated, eo nomine, to perform certain public duties created by the statute, which did not concern the city, and which did not intrinsically or historically pertain to the office of city clerk. We think that the compensation provided for him by the statute for these services cannot be deemed money received in his official capacity, within the meaning of the resolution of the city council fixing his salary as city clerk. That it was not intended to include the fees in question is apparent from the conduct of the parties. The plaintiff was re-elected for successive years, and the same language was used in all the successive resolutions fixing his salary, though he never accounted for these fees, and it was not until the close of seven successive years of service that any claim was made by the defendant that he should account for them. Both parties have assumed that the appeal opened the whole case, and we have considered all the questions argued by counsel. But it would seem that the appeal by the defendant did not bring before us for revision those counts upon which the judgment was in its favor. Vinal v. Spofford, 139 Mass. 126; Smith v. Dickinson, 140 Mass. 171; S. C. 3 N. E. Rep. 40. Judgment affirmed. (140 Mass. 436) (Essex, ss.) COMMONWEALTH v. HOLLIS. Filed January 7, 1886. PERJURY-SUBORNATION OF EVIDENCE. The defendant was indicted for procuring one S. to testify, at a previous trial of another case, that he saw one R. and H., the latter the wife of the defendant, in the act of committing adultery. Held, that the question at issue was whether S. had sworn falsely, and that evidence as to former acts of familiarly between the said R. and H. was inadmissible. Indictment, charging that the defendant procured and hired one Benjamin P. Soper to commit perjury upon the trial of a complaint in the police court of Lynn, charging Elizabeth M. Hollis, wife of the defendant in this indictment, and one John Rood, with the crime of adultery. It was admitted that Soper testified in the police court as stated in the indictment. Soper was called as a witness for the commonwealth, and testified "that he did not go up the ladder, and did not look through the window, and did not see Mrs. Hollis and Rood lying upon the sofa and committing adultery." The commonwealth offered other evidence tending to show that the relative positions of the sofa and the window were such as made it impossible for any one to see the sofa, or persons lying upon it, by looking through the window, and then rested. The defendant called one Mrs. May, and offered to show by her that, before the time when the alleged adultery was committed, as sworn to by said Soper in the police court, she had seen the said John and Elizabeth in the act of embracing and kissing each other, and in other acts of familiarity; but |