2. The Revised Statutes, c. 132, prohibit the sale &c. of tickets in " any lottery not authorized by law." Held, applicable to all lotteries not authorized by law having force in Massachusetts. Commonwealth v. Dana, 2 Met. 329.

3. Indictment under c. 132 of the Revised Statutes, for having in possession lottery tickets with intent to sell or offer them for sale. Held, it need not be alleged that there was an intent to sell or offer them within this Commonwealth. - Ibid.

4. Indictment, for unlawful possession of lottery tickets, with intent to sell them. The possession being proved, the judge instructed the jury, that "if from the whole of the evidence they were led to the belief that the defendant did sell and deal in lottery tickets, and had them in his possession for that purpose, as charged in the indictment, they would be authorized to find him guilty, unless he had succeeded on his part, as had become his duty, to explain the facts and circumstances consistently with his innocence of that unlawful intention.” Held, a correct instruction.

Ibid.

Lunatic.

1. Prior to St. 1832, c. 163, regulating the State Lunatic Hospital, a person was committed to the House of Correction in W., according to St. 1797, c. 62, § 3, by virtue of a warrant from two justices of the peace, who had adjudged him to be furiously and dangerously mad; and was removed to, and actually in, the hospital, prior to St. 1834, c. 150, which provides general rules for its government. By St. 1797, c. 62, § 3, lunatics, committed to the house of correction in pursuance thereof, shall be kept at their own expense, if they have estate, otherwise at that of the persons or towns, liable for their support if they were at large. By St. 1832, c. 163, § 4, the trustees of the hospital have all the powers, in regard to expenses incurred by the patients, possessed by keepers of gaols and houses of correction against delinquent towns or persons. In an action brought by the treasurer of the hospital against the town of W. for the expenses of the support of such lunatic, held, these two acts were repealed by St. 1834, c. 150, and the suit could not be maintained. Foster v. Worcester, xvi. 71.

2. By Revised Statutes, c. 48, § 9, the support of lunatics committed to the State hospital shall be paid for by the town where such lunatics had their settlement, when committed. Held, applicable to commitments, prior to the going into operation of the

Revised Statutes, or St. 1834, c. 150. — Foster v.
Foster v. Medfield,

Met. 1.

3

3. The repeal of St. 1833, c. 95, under which commitments were made, did not operate as a discharge therefrom. Ibid.

4. An agreement was made, unknown to the trustees of the hospital, between A. and the town where a committed lunatic had his settlement, that A. should pay for and save the town harmless from his support. A. afterwards requested the treasurer of the hospital to send the bills to him, when due; several of them were sent and paid; but he then refused to pay any more. facts did not show any "other sufficient security to the satisfaction of the trustees, taken for the support" of the lunatic, and therefore, under Revised Statutes c. 48, § 9, the town was not exempted from its liability for his future support. — Ibid.

Held, the

Malice.

In a legal sense, any unlawful act, done wilfully to the injury of another, is, as to him, malicious; neither ill will towards him, nor the entertaining or pursuing any general bad design, is necessary to constitute malice. Commonwealth v. Snelling, xv. 337.

Malicious Prosecution.

1. Where A. and B. bring an action for a reasonable and probable cause, in the name of A. alone, against C., upon which he is imprisoned, and it afterwards clearly appears from a deposition taken in the case, that the suit is unfounded, but still it is not discontinued nor the defendant discharged from imprisonment; these facts do not justify an action for a malicious suit against A. and B. jointly, because the continuance of the suit and the imprisonment is the act of A. alone. Bicknell v. Dorion, xvi. 478.

2. To sustain an action against an attorney at law for bringing a civil action, it must be shown, either that the nominal plaintiff did not authorize it, or that the two conspired to commence a groundless suit, the attorney knowing it to be so, and to be commenced without any intention or expectation of prevailing. Ibid.

3. In an action for malicious prosecution, the question, what facts and circumstances amount to probable cause, is a question of law; and, whether they exist in the particular case, a question of fact. Stone v. Crocker, xxiv. 81.

4. If all the facts which the evidence tends to prove do not amount to probable cause, the question of probable cause is for the judge. Ibid.

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5. Want of probable cause is very strong evidence of malice. Ibid.

6. Whether the trial and acquittal of the party prosecuted is primâ facie evidence of want of probable cause, qu. Ibid.

7. Certain beer-pumps in the custody of H. were attached as the property of W., and delivered by the officer to H. for safekeeping. In the absence of H., they were taken away by W., and a person claiming to be the owner. H. thereupon made a complaint against W., charging him with stealing the pumps, and W. brings this action against H. for malicious prosecution. Held, H. might offer in evidence a card which had been posted up at his place of business and seen there by W., if not put up by him, advertising that W. made and sold beer-pumps; not as evidence of the ownership of the pumps, but as having some, though a very slight tendency, to lead H. to believe that they belonged to W., and therefore showing probable cause for making the complaint. Wilder v. Holden, xxiv. 8.

8. If a creditor in Maine, holding a claim for $ 124 against a person in this State, attach for $2,000 a vessel just ready for sea in Maine, worth a much larger sum, claiming in the writ $1500; this is primâ facie, and without any explanatory evidence, a malicious prosecution, although the debtor had no other attachable property in Maine. Savage v. Brewer, xvi. 453.

Mandamus.

1. A. having been elected county commissioner, the board of examiners refused to give him a certificate of election and ordered a new choice, at which B. was elected. Held, A. was entitled to a mandamus, requiring the board to give him a certificate, though a quo warranto would also be requisite to remove B.Strong, &c. xx. 484.

2. Held, the court would not hear A. upon his petition for a mandamus, till notice was given to B. — Ibid.

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3. A mandamus does not lie, to compel the county commissioners to order repayment, from the county treasury, of part of the expense incurred by a town in making a highway; this being a question addressed to their judicial discretion. Inhabitants of Ipswich, &c. xxiv. 343.

Master and Servant.

One employed in working out another's highway tax, under the superintendence of a highway surveyor, is a servant of such surveyor. Elder v. Bemis, 2 Met. 599.

Meadows.

1. Under the provisions of the Revised Statutes c. 115, prescribing the mode in which meadows may be improved by commissioners, on application of the proprietors or the major part of them in interest, the course of a stream may be changed by the excavation of a new channel, for the purpose of draining the lower portions of a meadow and irrigating the more elevated portions, if such mode of improvement be for the general advantage of the proprietors, though the meadow might be drained by other means. Coomes v. Burt, xxii. 422.

2. The statute is founded upon the assumption, that the respective proprietors have a good title to their lands and the easements annexed. Hence, such change may be made, though the stream has flowed in its former course more than twenty years. Ibid.

3. The petition prayed, that the improvement might be made by diverting the stream from its course," commencing at the line between the lands" of two of the respondents. Held, such petition was not upon its face void for uncertainty, as it plainly stated the object to be accomplished, and the localities affecting the question of expediency were therefore matters of evidence. - Ibid.

A. Enrolment.

Militia.

B. Exemption from military duty.

C. Warnings to perform military duty.

D. Officers in the militia.

E. Complaints and prosecutions for neglect of military duty; allegations, evidence, and proceedings therein.

F. Courts Martial.

A. Enrolment.

1. The statutory regulations concerning the rolls of companies are merely directory to the officers. Hence, a roll may be sufficient to charge a person for neglect of military duty, though informal, imperfect and incorrect. - Giddings, &c. xxii. 406.

2. A list of names was headed "Company Roll, May, 1836, O. B. Clerk," but did not contain the name of any officer, the number of the regiment, &c., to which the company belonged, nor any account of arms and equipments, except that the word "rifle " was written against a few of the names. Held, this was evidence of the enrolment and liability to military duty, of a perIbid. son whose name was on the list.

3. The roll of a company of militia, annually revised in May, according to law, and from time to time corrected, as it becomes necessary, continues to be the legal roll, until revised in the next succeeding May. — Ibid.

4. The complainant, named D. P. Colburn, was enrolled in the militia by the name of D. P. Coburn. Held valid. - Colburn v. Bancroft, xxiii. 57.

5. A company being without commissioned officers, the selectmen of the town were called on to make out a roll, and made out one, containing some names which should not have been inserted. Held, the roll was still valid as to those who were legally enrollable. Cousins v. Cowing, xxiii. 208.

6. Junior & second are not part of a person's name. Hence, L. C. junior may be validly enrolled as L. C. second. - Cobb v. Lucas, xv. 7.

7. Upon a complaint for neglect of military duty, a roll of the company, made out and signed by individuals, as selectmen (according to St. 1825, c. 153), is evidence, without proof of their being such. -Gleason v. Sloper, xxiv. 181.

B. Exemption from military duty.

1. By United States laws, persons of the age of eighteen, and less than forty-five, except certain officers," and all persons who now are or may hereafter be exempted by the laws of the respective States," shall be enrolled. Held, the State Legislature might exempt persons of a certain, designated age from enrolment—thus, persons under twenty-one or over thirty. Brooks v. Daniels, xxii. 498.