contract to obey him, unless, indeed, he does something to show that such is not his intention. The case of Fitzsimmons v. Baxter, 3 Daly, 81, is closely in point; and, while other decisions are not very explicit upon this question, the prevailing opinion of courts and text-writers has been in the same direction. See Bishop v. Shepherd, 23 Pick. 495; Temple v. Turner, 123 Mass. 125; Farrel v. M Clea, 1 Dall. 392; Bray v. The Atalanta, Bee, 48; Wysham v. Rossen, 11 Johns. 72 Fland. Shipp. § 331 et seq.; Curt. Mer. Seam. 327. And an action at law is a proper remedy. Leon v. Galceran, 11 Wall. 185, 188; Rev. St. U. S. § 4547.

The payments made by the defendant from the money of the ship were properly applied to the wages earned before he took command. It is not as if he had made the payments from his own money. The ship and the owners were responsible to the seamen. The ship's money was paid to them. Exceptions overruled.

(141 Mass. 361)

(Worcester, ss.)

JAMES v. CITY OF WORCESTER.

Filed March 31, 1886.

1. MORTGAGE-RIGHTS OF MORTGAGOR-SETTLEMENT WITH MORTGAGEE FOR DAMAGES TO PROPERTY A BAR TO ACTION BY MORTGAGOR.

The defendant, under authority from the legislature, built a dam, and maintained a reservoir for the purpose of supplying its inhabitants with water. The dam gave away, and property, of which the plaintiff was owner, was damaged. The property was mortgaged, and the defendant settled with the mortgagee for all damages, and received a discharge in full. Held, that the settlement with the mortgagee was a defense to a suit brought by the plaintiff, mortgagor, for the damages to the property.

2. SAME-COMPROMISE.

Where suit was brought by a mortgagee for damages to the mortgaged prop. erty, and the defendant denied its liability, and that was the question which was settled by the parties by compromise, if the defense was urged in good faith, and was given up, and payment made under a reasonable compromise, held, that the mortgagor of the property was bound by it.

The facts appear in the opinion.

Rice & King, for plaintiff.

F. P. Goulding, for defendant.

W. ALLEN, J. The defendant, under authority from the legislature, built a dam and maintained a reservoir for the purpose of supplying its inhabitants with water. This action is brought to recover for damages to the plaintiff's land by water, which escaped from the reservoir in consequence of the giving way of the dam. The land was subject to a mortgage, and the defendant settled with the mortgagee for all the damages, and received a discharge in full from him. The first question is whether the settlement by the mortgagee is a defense to this suit by the mortgagor. In general, the mortgagee of land is entitled to the damages for a permanent injury to the land impairing the value of his security. Searle v. Sawyer, 127 Mass. 491; Wilbur v. Moulton, Id. 509; Page v. Robinson, 10 Cush. 99; Cole v. Stewart, 11 Cush. 181; Gooding v. Shea, 103 Mass. 360; Byrom v. Chapin, 113 Mass. 308. The plaintiff

5 N.E.

contends that this rule only goes to the extent of recognizing the right of the mortgagee to the possession of things that have been wrongly severed from the realty and converted into personal property, as in the two cases cited above from 127 Mass. But the other cases cited show that the right of action of the mortgagor is based upon his interest in the property, and that his damages are measured by the extent of injury to the property While the paramount right to sue for and recover the damages was in the mortgagee, yet he would hold what he recovered under the mortgage, and the mortgagor had an interest in the question of the amount to be recovered, and the parties were bound to act with due regard to his interests.

The plaintiff claims that he is not bound by the settlement between the mortgagee and the defendant because it was made under an agreement between them that the amount of damages to the land should be ascertained by arbitration, and that the mortgagee "should discharge the defendant, on the payment of two-thirds of the amount found, and that the amount paid was but two-thirds of the amount of the damages. The rule, as laid down in Byrom v. Chapin, ubi supra, is that "reasonable satisfaction, fairly made in good faith to the first mortgagee, will discharge the claim as to all other interests." The authority of the mortgagee to refuse the claim, or submit it to arbitration, or to compromise and settle it, cannot be questioned; but the plaintiff contends that the agreement to take two-thirds of the ascertained amount was not reasonable, and that the amount paid was inadequate. The court refused to rule, as requested by the plaintiff, that the payment of two-thirds of the damages found by the referees discharged the defendant only to the amount paid, and instructed the jury that, if the mortgagee recovered the damages, and the settlement was made in good faith on the part of the defendant, the settlement and release was a defense to this action by the mortgagor. We think that the instructions given were correct. The mortgagee had commenced an action against the defendant. The defendant denied its liability; and that was the question which was settled by the parties by compromise. If the defense was urged in good faith, and was given up, and payment made under a reasonable compromise, we think that the mortgagor is bound by it. There is nothing in his relation to the suit or question which should require the parties to litigate to the end a contested question, or deprive them of the right to agree upon a fair and reasonable compromise of a claim of liability contested in good faith. So far as the liability of the defendant turned on a contested question of fact, the answer of the jury to the question submitted to them in this case shows that the compromise was a gain to the plaintiff; so far as it turned on a controverted question of law, we think that the right of recovery was so doubtful that the settlement was a reasonable one for the plaintiff to make. See Tuttle v. Tuttle, 12 Metc. 551. The defendant made the payment to the party entitled to it, in consideration of a reasonable compromise, and in good faith, and it cannot be required to contest again either the question of liability or the amount of damages.

The decisions that damages for the taking of land for public usesunder statutes are to be assessed to the owner of the equity, without regard to mortgages upon the land, rest upon reasons wholly inapplicable to the case at bar. Farnsworth v. Boston, 126 Mass. 1. As this decision disposes of the case, the other questions presented by the exceptions become immaterial. Exceptions overruled.

(141 Mass. 459)

(Suffolk, ss.)

Совв and another v. TIRRELL and others.

Filed April 2, 1886.

PROMISSORY NOTE-ACTION-EVIDENCE-NOT CLAIMED BY WITNESS.

In an action upon a promissory note, a witness was called for the purpose of producing the note in suit, and handed it to plaintiff's counsel at the latter's request, saying he would allow him to take it if he would return it, but declined to give it up, as he claimed it as his property. Held, that the note so held could not be put in evidence, and that the court rightly refused to order the witness to produce the note for use by the plaintiff in proving his case. Also held, that the doctrine of a lost note has no application where the ownership of the note is in dispute, and the party in actual possession of it is known to the plaintiff.

This was an action to recover the balance due upon a promissory note for $2,167.54 dated November 27, 1878, payable in four months, made by the defendants, and given to the plaintiffs in payment for merchandise. At the trial in the superior court before STAPLES, J., one John S. Fogg, a witness, was called, and testified that in 1879 he did business under the name of Fogg Bros. & Co.; had no partner; was father-in-law of the defendant Poole; had been summoned to produce the note in suit, and had it then in his possession, but declined to give it up, claiming it as his property. Witness thereupon took the note from his pocket, and handed it to plaintiffs' counsel, at the latter's request, saying he would allow him to take it if he would return it to him. Plaintiffs then offered to put the note in evidence, as the note declared upon and the foundation, of their case, to which defendants objected, and the court declined to admit it. Plaintiffs then asked the court to order witness to produce the note, so that plaintiffs could put it in evidence for the purposes aforesaid, which the court declined to do. The court, upon the evidence, ruled that upon the evidence in the case the plaintiffs were not entitled to recover, and directed the jury to return a verdict for defendant, which was done, and the case was reported to this court for further consideration.

Morse & Hone, for plaintiffs.

Avery & Hobbs, for defendants.

DEVENS, J. When this case was last before the court, it was held that the plaintiffs might recover upon the note in suit, on proof of fraud by the defendants in relation to the composition agreement; but this decision assumed that the plaintiffs were of right entitled to the note in controversy as their property, and it was distinctly said that only the question raised between the plaintiffs and defendants was decided, and not

5 N.E.

any question that might arise between the plaintiffs and John S. Fogg. Cobb v. Tirrell, 137 Mass. 143. At the trial we are now considering Fogg appeared, produced the note upon which the plaintiffs have brought suit, handed it to plaintiffs' counsel upon the understanding that it should be returned to him. The plaintiffs then claimed a right to put the note in evidence as that declared upon by them, and as the foundation of their suit, and requested the court to order the witness to produce the note for these purposes aforesaid, the witness contending and claiming that it was his own property. This was in effect to ask the court to decide, in a suit to which Fogg was not a party, that a valuable piece of property belonged to the plaintiffs, and not to the witness, in whose possession it was. Admitting that the evidence in the case, including that from Fogg, tended to show that he had been actively engaged in a transaction with the defendants by which they had induced the plaintiffs to become parties to a composition deed, under circumstances which would authorize them, if so disposed, to avoid the same, the rights of one actually in possession of property, and claiming to be lawfully so, cannot be dealt with in this summary manner. He cannot be deprived of his possession without due process of law. A proceeding to which he is not a party, where he cannot call witnesses, and where he cannot have a trial of his asserted rights, by jury or other regular adjudication, does not properly protect them.

The case of Bull v. Loveland, 10 Pick. 9, goes far to sustain the court in declining to order Fogg to produce the note for the purposes desired by the plaintiffs. In that case it is true that the plaintiff had actually attached the property of defendant, which by the assignment had been transferred to the holder of the note, and requiring of him that he should surrender it was to require that he should fix a lien by attachment on the funds which had been placed in his hands for the benefit of creditors, and upon which he had made advances. But in the case at bar it would be most unjust to the holder of the note, if, in advance of a decision between himself and the plaintiffs, he should be compelled to surrender the note, that the plaintiffs might make it the foundation of an action, recover upon it, and file it in their suit; thus rendering it unavailable for him as the foundation of an action for the whole or any part which might be due thereon to him, or as a voucher in his dealings with the defendants, and enabling the plaintiffs to levy the execution recovered upon the note upon the property assigned to him.

The plaintiffs further contend that the actual production of the note was not essential to their case; that they should have been allowed to sue and recover upon it as a lost note. It has long been held in Massachusetts that a party, on proving that a note was lost or destroyed, might maintain an action thereon, and recover judgment, on filing a bond to the satisfaction of the court indemnifying the defendant against any loss. or damage if the note should afterwards be found in the possession of a bona fide holder. The same principle would be applied where it was shown that a note was stolen. Jones v. Fales, 5 Mass. 101; Fales v. Russell, 16 Pick. 315; Grimes v. Kimball, 3 Allen, 518; McGregory v. McGregory,

107 Mass. 543. In England, prior to statute provisions, it was held that no action at law could be maintained on a lost negotiable instrument. Hansard v. Robinson, 7 Barn. & C. 90; Common-law Procedure Act, 17 & 18 Vict. c. 125, § 87.

But the doctrine of the cases in regard to lost notes has no application where the ownership of the note is in dispute, and the party in actual possession of it is known to the plaintiff. The defendant, even if he is bound to pay the note, is bound to pay it only once, and to respond only once to suit thereon. When the note is lost, the case, as it is presented to the court, is one where the plaintiff shows himself clearly entitled to the note and the debt secured thereby, although lost by accident or misfortune, and there is no one who contests his claim thereto. But when the note is shown to be in existence, and the plaintiff's title thereto is disputed, the defendant should not be called to respond to him merely because he is willing to give a bond of indemnity. He should first obtain it, or at least establish the fact that he is the owner of it in a suit with him who contests his title. That there may not be a failure of justice when it is established, as between the maker and himself, that he owns the note, and it is lost, it is right that the maker should be contented with the bond of indemnity. It is not a perfect security, as the maker may yet be subjected to painful litigation where witnesses are dead, and evidence has disappeared, while in the mean time the principal and sureties on the bond may have become insolvent; but it is the only security which the circumstances permit. As there can be no absolute security for the maker in such a bond, and as subsequent litigation may put him to inconvenience and expense, he should not be compelled to accept when it is possible otherwise fully to protect him.

If the negotiable instrument has passed out of their control, and into that of another, the plaintiffs should not, in the case at bar, be allowed to maintain an action upon it, or the debt secured thereby, until, in some direct controversy with the possessor, they have negatived such person's right to it. Van Alstyne v. National Com. Bank, 4 Abb. App. 449; Crandall v. Schroeppel, 1 Hun, 557; Rohrer v. Turrill, 4 Minn. 407, (Gil. 309;) McKinney v. Hamilton, 53 Mich. 499; S. C. 19 N. W. Rep. 263.

It was therefore correctly ruled that on the evidence in the case the plaintiffs were not entitled to recover. Judgment on the verdict.

(141 Mass. 432)

(Bristol, ss.)

BLACKINTON v. BLACKINTON.

Filed April 1, 1886.

HUSBAND AND WIFE-ACTION FOR MAINTENANCE-DESERTION-SERVICE IN ANOTHER STATE.

A., a married woman, brought a petition in the probate court in Massachusetts, praying for an order to prohibit her husband, B., from imposing any restraint upon her personal liberty, and for separate maintenance. Service of the petition was made upon the husband in New York; he being at the time a citizen of that state. Held, that the service was sufficient, and that the probate court, under Pub. St. c. 147, § 33, properly entered a decree against B., and ordered the payment of money for the maintenance of A.