Volume 100 — Massachusetts Reports

<p>In an indictment for embezzling “ bonds of the United States of America, for the payment of money, issued by authority of law,” and of an “ aggregate value ” averred specifically, this description of the embezzled property is sufficient.</p> <p>A person who embezzles several articles of properly at one time may be indicted and convicted for the embezzlement of each article separately.</p> <p>Evidence that a person who took a promissory note for the purpose of causing it to be discounted at a bank for another person, sent it, with fraudulent intent, to the cashier, with other notes, to be discounted on his own account, and with such intent procured the proceeds to be passed to his own credit, is sufficient to sustain an indictment against him for embezzling the note; and it is immaterial that he afterwards paid part of the proceeds on the other’s account at the other’s request.</p> <p>Evidence that a person who took from the maker of a promissory note, as security for his liability as indorser, property which might be the subject of larceny, fraudulently pledged it for his own debt, after the payment of the note by the maker, is sufficient to sustain an indictment against him for embezzlement; and in such an indictment the violated trust is sufficiently set forth by an averment that the defendant took the property in trust and confidence “ to be by him held in his custody and possession as security for the liability which he assumed for the said maker by indorsing the promissory note aforesaid, and, when said promissory note should be paid by the maker, then the said property to be by the defendant delivered to the said maker.”</p> <p>On the trial of an indictment for embezzling property deposited with the defendant fat another purpose, by pledging it as security for his own debt, the owner was asked, as a witness, for the purpose of showing that the relations between him and the defendant were such that the latter had a right to presume that the witness would ratify such a use of his property, whether he would have consented to such a use of it, if he had been asked at the time, and whether, at the time he deposited it with the defendant, he had any objection to such a use of it by him. Held, that these questions were rightly excluded as immaterial.</p> <p>The disposal of collateral security by the holder, before the debt of which it was deposited with him to secure the payment becomes due and payable to him, for which a punishment is provided in the Gen. Sts. c. 161, § 64, is not indictable as embezzlement under §35.</p> <p>An indictment of B. for embezzling securities for money held by him from H. “in trust and confidence to be by B. safely kept for H. until H. should call for the same,” sets forth a trust on the part of H. sufficiently to warrant the conviction of B. on proof of his fraudulent conversion of securities so held by him.</p> <p>In an indictment for embezzling securities for money, there is no need of a special averment that the embezzled property remained at the time of the embezzlement property of the person who originally delivered it to the defendant, if it is sufficiently averred that it was the property of such person at the time of such delivery.</p>

<p>Indictment for forging securities for money, and uttering forged securities for money as genuine; containing originally ten counts, only the first two and last three of which are ma terial.</p> <p>The first count charged that on March 12, 1866, at Sterling the defendant “ had in his custody and possession a certain bill of exchange for the payment of money,” of the following tenor “ $850. Sterling, March 12, 1866. Three months after date pay to the order of myself eight hundred and fifty dollars, value received, and charge the same to the account of your obedient servant, J. S. Butterick. To J. S. Butterick, Sterling, Mass.; ” that “ upon the back thereof was then and there written an indorsement thereof of the tenor and effect following, to wit, ‘ J. S. Butterick; ’ ” and 11 there was then and there written upon the face of said bill of exchange the following indorsement, to wit,6 Payable at the Lancaster N. Bank, J. S. Butterick; ’ ” and that the defendant “ did then and there falsely make, forge and counterfeit, on the back of said bill of exchange, beneath the indorsement of the name of J. S. Butterick on the back of said bill of exchange, an indorsement of said bill of exchange of the tenor and effect following, to wit, ‘ J. M. Stevenson,’ with intent to injure and defraud.”</p> <p>The second count alleged that the defendant at the same date and place “ had in his custody and possession a certain bill of exchange for the payment of money,” of the following tenor: “ $850. Sterling, March 12, 1866. Three months after date pay to the order of myself eight hundred and fifty dollars, value received, and charge the same to the account of your obedient servant, J. S. Butterick. To J. S. Butterick ; ” “ on which bill of exchange was then and there written an indorsement thereof of the tenor and effect following, to wit, ‘J. S. Butterick;’ that there was then and there written on said bill of exchange a certain false, forged and counterfeit indorsement of said bill of exchange, of the tenor and effect following, to wit, ‘ J. M. Stevenson;”’ and that the defendant “ did then and there utter and publish as true the aforesaid false, forged and counterfeit indorsement of said bill of exchange with intent to injure and defraud,” “ then and there well knowing the aforesaid indorsement of the name of J. M. Stevenson upon the aforesaid bill of exchange to be false, forged and counterfeit.”</p> <p>The eighth count charged that the defendant on January 22, 1866, at Sterling, “ had in his custody and possession a certain false forged, altered and counterfeit promissory note for the payment of money,” of the following tenor: “ $675. Sterling, January 22, 1866. Three months after date I promise to pay to the order Taylor Ross six hundred and seventy-five dollars, value received, at Lancaster N. Bank. Silas Priest; ” “ on which said promissory note was then and there written a certain false, forged and counterfeit indorsement of said promissory note, of the tenor and effect following, to wit, ‘ Taylor Ross • ’ ” and that the defendant “ the said false, forged, altered and connterfeit promissory note did then and there utter and publish aa true, with intent to injure and defraud,” “ then and there well knowing the aforesaid promissory note to be false, forged, altered and counterfeit.”</p> <p>In the ninth and tenth counts averments like those of the eighth count were applied to two other promissory notes.</p> <p>At the trial in the superior court, Devens, J., overruled a motion filed by the defendant before the jury were impanelled, to quash these counts as not setting forth any offence with due certainty; of which the following are the material parts :</p> <p>“ Because the first count contains no description or copy of the instrument upon which the forged .indorsement is alleged to have been made, inasmuch as said indorsement is alleged to have been made upon a bill of exchange, and the instrument set forth does not purport to be a bill of exchange; because said instrument does not appear, nor can it be, of any legal validity and because the allegations are contradictory and inconsistent, averring an indorsement to have been made upon the face of the bill.</p> <p>“ Because the second count contains no description or copy of the instrument upon which the forged indorsement is alleged to have been made, inasmuch as said instrument is alleged to have been a bill of exchange, and the instrument set forth does not purport to be a bill of exchange; because said instrument was of no legal validity; and because it does not allege that the defendant knew said indorsement to be forged at the time of uttering the same.</p> <p>“ Because the eighth count does not purport to set forth a copy or substantial description of the note at the time of uttering, or while the same was in the possession of the defendant; nor does it state to whom said note was uttered, nor that it was uttered with an intent to defraud any person, nor wherein said note was altered.</p> <p>“Because the ninth and tenth counts are defective, for the reasons above stated in regard to the eighth count.”</p> <p>The trial proceeding, the only evidence introduced under the first count “ was the evidence of the said Stevenson, who testi fled that said signature of his name was not his own, and that it resembled the handwriting of the defendant; the testimony of an expert that the forged indorsement was in the handwriting of the defendant; and the testimony of the cashier of the Lancaster National Bank that the said bill was passed as genuine by the defendant, with the indorsements thereon as above set forth. There was no testimony as to the time when, or order in which, said indorsements were written. The defendant requested the judge to rule that, in order to convict the defendant under the first count, the jury must be satisfied, from the evidence, that the first two indorsements were upon the bill when the indorsement of the name of £ J. M. Stevenson ’ was forged by the defendant; and that there was no evidence introduced tending to prove this fact. The judge declined so to rule, and ruled that the jury were authorized to convict the defendant under the first count, upon the evidence above set forth.”</p> <p>The jury found the defendant guilty on the first, second, eighth, ninth and tenth counts; and he alleged exceptions.</p>

<p>Contract on a promissory note for one thousand dollars, signed by the defendant, dated April 16,1866, payable to Jonathan S. Butterick or order, and indorsed by him to the plaintiffs. Trial in the superior court, before Reed, J., who allowed the following bill of exceptions:</p> <p>“ It was conceded at the trial that the defendant wrote his name upon the paper produced in support of the declaration, and that the plaintiffs received the same on April 16, 1866, in payment of a previous note of like tenor signed by the defendant and indorsed by Butterick, which fell due on that day; and there was evidence that by mistake Butterick did not at the time indorse the note declared on.</p> <p>“ The defendant offered to show that Butterick applied to him to sign a note for one hundred dollars as an accommodation for Socrates Henry; and that for that purpose he signed a blank note which Butterick was authorized to fill up as a note for one hundred dollars only, but which he in fact by fraud and without authority filled up as a note for one thousand dollars, and indorsed and got discounted at the plaintiffs’ bank for his own benefit, and which was the previous note above named.</p> <p>“ The defendant further offered to show that the signature to the note in suit was obtained by Butterick by a like request foi his signature to a note for one hundred dollars for Henry’s benefit, and that he signed his name in blank, and authorized Butterick to fill up the instrument over his signature as a note for one hundred dollars only, but that Butterick fraudulently and without authority filled it up as a note for one thousand dollars; that the defendant never received anything on account of this or the previous note; that Butterick never indorsed the note to the plaintiffs till long after its maturity, and after they had notice of the above facts; and that at the time of the taking up of the first note Butterick was responsible and able to pay the same, and the same could have been collected of him.</p> <p>“ The judge ruled that, if the note was passed and sold to the plaintiffs before maturity, but by mistake was not indorsed, and the bank in consideration therefor relinquished a note for a like amount on which the defendant was legally liable as maker, and the note was afterwards, before action, indorsed by Butterick, the plaintiffs would be entitled to recover, even if the facts offered by the defendant were true; whereupon the defendant submitted to a verdict, and excepted to the foregoing ruling.”</p>

<p>A corporation established to transport goods for hire between certain places, and receiving goods directed to a more distant place, is not responsible, beyond the end of its own route, as a common carrier, but only as a forwarder, unless it makes a positive agreement extending its liability.</p> <p>The officers of a railroad corporation whose route connected with the route of a steamboat corporation supplied blanks to their station agents to receipt for goods to be transported from their stations to points on the connecting route", in a form which provided that the goods should be transported by the railroad corporation to the end of its own route, and thence by the steamboat corporation, and that in case of loss or damage of the goods the corporation alone should be responsible in whose actual custody they might be at the time. Instead of using these blanks, one of the station agents, without the knowledge of the officers of the railroad corporation, and without special authority, was accustomed to give to a person who shipped goods from time to time from that station to points on the connecting route receipts on blanks fufnished by that person in a form by the terms of which the railroad corporation was made to promise to forward and deliver the goods to the order of his consignee at those points. Held, that the railroad corporation was not bound as a common earner of the goods beyond the end of its own route, by virtue of receipts so taken.</p> <p>By a contract between a railroad corporation and a steamboat corporation, whose routes formed a continuous line, it was provided that each should furnish, on its own route only, connecting trains and boats respectively, for the transportation of passengers and merchandise over the line at agreed rates of fare or freight, the proceeds to be divided between the contracting parties in an agreed proportion; and that “loss or damage occasioned by injuries to person or property on said line shall be borne by the party having possession of the same at the time the injuries were done.” Held, that a person who de- ' livered goods to one corporation, for transportation over the line to a point on the route of the other corporation, could not, by virtue of this contract, hold the first corporation liable for loss of the goods while on the route and in the possession of the second.</p> <p>A person who delivers to a railroad corporation goods for transportation over a line formed by the railroad with the connecting route of a steamboat corporation cannot hold the railroad corporation responsible for loss of the goods by collision or fire while on the route and in the possession of the steamboat corporation, by virtue of a tariff of rates of freight for the transportation of goods over that line, which does not specify what proportion of any rate represents the service to be performed by either corporation, and which provides for the responsibility of “the line” to the shippers of goods over it, but which sets forth that “ this line will not be responsible for collisions, dangers and accidents from steam, fire, sea, rivers; ” even if this tariff should be considered as a contract between the shipper and the railroad corporation, varying what would otherwise be the legal liability of the latter for the safety of the goods beyond the end of its own route.</p>

<p>Contract to charge the defendants as warehousemen with the value of three barrels of kerosene oil and four barrels of glassware burned between midnight and four o’clock in the morning of November 1, 1866, in their freight house at Milford.</p> <p>At the trial in the superior court, Rockwell, J., refused a request of the defendants at the close of the evidence to direct a verdict in their favor, and the jury found for the plaintiff for the value of the glassware, but not of the oil. After this verdict, the judge, at the same time allowing a bill of exceptions taken by the defendants at the trial, reported the case, by agreement of the parties, for the determination of this court, judgment to be entered on the verdict if there was evidence of negligence which should have been submitted to the jury, otherwise the verdict to be set aside. The substance of the evidence is stated in the opinion.</p>

Tort for injuries sustained by the plaintiff while a passenger on board of the defendants’ steamboat.

<p>Contract for the value of a pair of steers alleged to have been lost through the defendant’s negligence. At the trial in tne superior court, before Rockwell, J., the jury found for the plaintiffs; and the judge allowed a bill of exceptions of which the following is the material part:</p> <p>“ It appeared that the defendant was a drover engaged in driving cattle from Brighton to various points between that place and Worcester; that on November 9, 1865, the plaintiffs by their agents intrusted to him a pair of steers to drive from Brighton to Northborough for a stipulated price; that he received the same, marked them by cutting in the hair the letter H, and left Brighton, according to his custom, on the afternoon of that day, with a drove of one hundred and twenty-three cattle. The evidence left it uncertain whether the steers were in the drove or had been stolen from the defendant’s yard at Brighton before he started. The defendant offered evidence, not controlled by the plaintiffs’ evidence, tending to show that, at about dusk of said day, as he was proceeding with his drove, assisted by two men and a boy, when he had reached a point near the Boston and Worcester Railroad in Newtonville a passing train of cars frightened and stampeded the drove into the adjoining fields; that, as soon as he could, with the aid of his men, he got the drove back in the road and proceeded to the place where he stopped with it for the night; and that upon counting the drove it was found that nine cattle were missing. The defendant testified that the next morning he proceeded with his drove towards bis destination ; that he had cattle to deliver at various points, as far as Worcester, at which last place he arrived with the remainder of the drove on Friday evening, November 11; and that early the following morning he returned to seek the lost cattle, found seven of them, but was unable to find the steers in question.</p> <p>“ Upon the question of ordinary diligence, the defendant offered to prove a custom among drovers engaged in driving cattle for hire over this route and other routes from Brighton to points forty or fifty miles out, whenever it happens that one or a small number of cattle stray from a drove and cannot be immediately found, to drive on with the drove to their destination, and then return and seek for such stray cattle. The plaintiffs objected to this evidence ; and the judge excluded it. Upon the same question, the defendant also offered to prove what it would cost to feed a drove of cattle of the size of the defendant’s said drove; but, on the plaintiffs’ objection, the judge excluded the evidence.</p> <p>“ The defendant asked the judge to instruct the jury that, ‘in the law of bailments, the measure of ordinary diligence in any particular case is such diligence as men of common prudence ordinarily use, as a matter of fact, engaged in and about the same employment.’ The judge declined to give this instruction in that form, but instructed them that ‘ the defendant was under obligation to take the same care of the cattle as prudent men ordinarily take of their own cattle under the same circumstances.’</p>

Tort under the Gen. Sts. c. 44, § 22, for injuries sustained from defects in a highway in Hubbardston. Held: the horse swayed and stepped a little to the right of the track, and with a careful and proper pressure upon the reins he brought him back in whole or in part; and that then the hind wheel went off the shoulder of the road, and he was thrown out and the carriage overturned; that, by the ice on his left encroaching upon the road,…

<p>In an action of trespass, between proprietors of lands in the adjoining towns of Shirley and Lunenburg, whose deeds bounded on 16 Shirley line ” and u Lunenburg line ” respectively, there was evidence tending to show that when the deeds were made the legal line between the towns (which was afterwards fixed by the legislature by a declaratory act) differed from what it was universally reputed to be. Held, 1. that such evidence disclosed a latent ambiguity which paroi evidence was admissible to explain; 2. that, although the presumption on the face of the deeds was, that they conveyed to the legal line, yet if a different line was shown to exist, considered universally at the time of the making of the deeds to be the Shirley and Lunenburg line, that would be the boundary referred to in the deeds; 3. that perambulations of the boundaries of the towns by the selectmen in the execution of their legal duty were competent, but not conclusive, evidence of the line intended by the parties; and 4. that the determination of their actual intention was for the jury upon a consideration of all the circumstances.</p>

<p>Contract against a trader in sewing machines in Worcester on the following agreement signed by him : “ Worcester, August 30, 1866. I promise to pay Walter Stoops the sum of fifty dollars for inserting business card in two hundred copies of his advertising chart; to be paid when the chart is published and the card appears to the exclusion of all others in the sewing machine trade.” The declaration alleged the full performance of ‘,he condition by the plaintiff, and the defendant’s refusal nevertheless to pay the stipulated sum on demand. The answer alleged that any sum which the defendant agreed to pay to the plaintiff was in consideration of the plaintiff's promise that the copies of the chart should be made of cloth, and be published by posting in the most public and conspicuous places within forty miles of Worcester ; that there had been a failure of such consideration ; and that the plaintiff made the promise with intent to defraud.</p> <p>At the trial in the superior court, before Rockwell, J., the plaintiff testified “ that he resided in Brooklyn, New York; that he made the contract with the defendant, declared on ; that he printed two hundred charts containing the business card of the defendant to the exclusion of all others in his branch of trade; that within a month after the date of the contract he sent said charts to Worcester by express, and at the same time came to Worcester himself, hung up at the hotel where he stopped in Worcester one of said charts, and distributed the balance among those whose business cards were printed on said chart; that he delivered from four to eight of them at the defendant’s place of business; that said chart was intended to be hung up in public places as an advertising medium; and that he subsequently requested payment of the defendant, who refused to pay the same.” On this evidence the plaintiff rested his case. The defendant asked the judge to rule that, as the contract specified two hundred charts, the plaintiff could not maintain his action without showing that he had published that number of charts in some manner adapted to bring the advertisements thereon to the notice of the public in the vicinity of the defendant’s place of business; and that distributing them as testified was not such a publication ; but the judge refused so to rule, and ruled that upon the plaintiff’s evidence, if believed, he was entitled to recover.</p> <p>The defendant then “ offered to show, by cross-examination of the plaintiff and otherwise, for all purposes for which the evidence might be competent, that, at the time this contract was made, the plaintiff, in order to induce the defendant to enter into it, represented that the defendant’s business card would appear on two hundred charts; that the charts were to be made of cloth; that he should publish the same by posting or hanging them up in two hundred of the most conspicuous public places, such as hotels, railroad stations, and the like, within forty miles of Worcester; that the defendant made the contract, relying on these representations ; that the plaintiff did not make said charts of cloth, but of paper; that he did not publish the same by posting them in any public place; and that at the time he made the contract he intended not to so publish or make the chart, that the chart has never been published in the way and manner agreed upon as aforesaid; that without publication in some suev manner as the one indicated the chart would be entirely valueless for the purposes for which it was intended; that by reason of the failure of the plaintiff to publish the chart according to his agreement and representations the defendant has derived no benefit whatever therefrom; that the getting up and publishing of the chart was not a joint enterprise on the part of the persons whose business cards appeared thereon, but was the individual enterprise of the plaintiff; and that none of the persons to whom said charts were distributed accepted them, or made any exhibition or publication of them whatever.” The judge, on the plaintiff’s objection, refused to allow the defendant to introduce the evidence thus offered, and ruled “ that as matter of law the terms of the contract were fully complied with on the part of the plaintiff by his printing the card of the defendant upon two hundred copies of his advertising chart to the exclusion of all others in his branch of business, and distributing the two hundred copies as stated by him, and that no evidence of extrinsic facts was admissible, either for the purpose of showing the inducement or the fraud set up in the answer, or the facts and circumstances surrounding the transaction, or for any other purpose.” The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>In an action for the price of goods sold on the defendant’s credit to his agent, in which the defendant contended, that the purchase of goods on credit was not within the scope of the agency, the judge instructed the jury that, to return a verdict for the defendant, they must find not only that the agency was so limited in fact, but also that “ the plaintiff was informed, or had reason to believe, by the acts and declarations of the defendant,” that it was so limited. Held, that the instruction was erroneous in leaving the jury without any guide to a proper conclusion in the absence of any such acts or declarations proved to their satisfaction.</p> <p>ta an action for the price of goods sold on the defendant’s credit to his agent, in which the defendant contends that the purchase of goods on credit was not within the scope of the agency, evidence is admissible to show that the agent was always in funds, either from the business itself which was the subject of the agency, or from the defendant, sufficient to pay cash for all his purchases.</p>

Tort by a landowner in Westborough against the owner of adjoining land for causing and maintaining noxious stenches at intervals from June 5, 1865, to the date of the writ, June 8, 1866.

<p>To effect an arrest, it is not necessary for the officer to touch the person of the defendant, but is enough if the defendant is within the power of the officer and submits to the arrest.</p> <p>On the trial of an action on a judgment obtained in another state, it appeared by the record of the former action that the service of the writ therein was made by an arrest of the defendant, from which, by direction of the plaintiff’s attorney, he was released without giving bail or being committed to jail; and that the statutes of that state contained no express provisions inconsistent with such a service. JEteld, that the testimony of experts from that state was admissible to show whether by the usage and practice of its courts the service was sufficient to support the judgment; and that on such proof of its sufficiency the action might be maintained in this Commonwealth.</p> <p>The decision of the court in an action on a judgment obtained by default and without the knowledge of the defendant, whether or not to allow him, under the Gen. Sts. c. 129. § 78, to show in defence a satisfaction of the claim prior to the obtaining of such judgment, or a matter of fraud, which he might have shown on a writ of review in the original suit, is a matter of discretion, and so not a subject of exceptions.</p>

<p>If a contract is made "between two citizens of the same state, within the state, one of whom afterwards removes therefrom and becomes a citizen of another state, and the other then obtains in the first state, where he continues to reside, a discharge under its insolvent law which was in force when the contract was made, the discharge is a bar to an action against him on the contract.</p>

Contract on a promissory note for five hundred dollars, made by the firm of Carpenter & Wallis, (which consisted of Reuben Carpenter and Frederick O. Wallis,) indorsed by the defendant, and protested for nonpayment. The case was submitted to the judgment of the court on agreed facts, the substance of which is stated in the opinion.

Contract on an account for seventy-five dollars for rent of a farm for three years; submitted to the judgment of the court on these facts agreed: Before the commencement of this action, this defendant sued this plaintiff in tort before a justice of the peace for the conversion of crops on the farm; in which former action this plaintiff filed a declaration in set-off on an account for one hundred dollars for rent of the farm for four years, including the three years for which…

<p>Contract upon an account annexed for one seventh of the cost of repairs of the dam and gates of a reservoir.</p> <p>At the trial in the superior court, before Vose, J., the plaintiffs evidence tended to show that they were tenants in common of a reservoir, upon the dam and gates of which the repairs were made; that the defendant had no legal interest therein, but owned a mill privilege below, which was benefited by the reservoir; that, before the repairs were made, notice was given to the defendant that they were necessary and that the plaintiffs intended to make them, and he was requested to attend a meeting of the mill-owners in regard to them, and promised the plaintiffs that, if they would make them, he would pay his share • that the plaintiffs made the repairs; that the repairs were necessary, as the reservoir dam would not hold water without them ; and that there were six mills on the stream, below the reservoir, which were owned by the plaintiffs individually, besides the defendant’s mill.</p> <p>The defendant asked the judge to rule that the plaintiffs could - not recover in this form of action ; but he refused so to rule, and instructed the jury that, if they believed that the reservoir dam was a benefit to the defendant’s mill, and the repairs made were necessary, and the making of them resulted in a benefit to the defendant, and the defendant, upon receiving notice of the necessity of the repairs and the intention of the plaintiffs to make them, promised the plaintiffs to pay the plaintiffs his proportionate share if they would make them, then the plaintiffs were entitled to recover the defendant’s reasonable share of the expense of the repairs. The jury found for the plaintiffs; and the defendant alleged exceptions.</p>

Tort. The declaration alleged that the defendants owned a mill and dam on a stream in Brookfield, which dam was situated in whole or in part within the limits of a highway which the plaintiffs were bound to keep in repair, part of which highway consisted of a bridge under which the stream flowed from the dam; that the dam was built so near to the bridge, that, in order to prevent the water, in its descent, from undermining the abutments, the defendants, or those under whom…

<p>Under the St. of 1864, c. 104, which empowered the city of Worcester to suppty itself with pure water from sources in Leicester, and provided in § 8 that all damages sustained thereby should be “ assessed in the manner provided in the general laws in regard to highways,” a claimant of damages for acts done by the city in the exercise of powers given by the statute should first proceed by petition to the county commissioners to assess his damages; and it is immaterial to their jurisdiction of such a petition that an assessment has been made by the city itself at the instance of the same petitioner.</p>

<p>Bill in equity to redeem real estate from a mortgage given by the plaintiff to David Heywood. Answer, that the right of redemption was foreclosed. Issue was joined on the answer, and a hearing had before Colt, J., who reserved the case for the determination of the full court on a report of which the following is the material part:</p> <p>“ It appeared that the mortgage was given by the plaintiff June 25,1850, and assigned by Heywood to Jonathan Fawcett May 24,1851. To prove a foreclosure the defendant relied upon a certificate indorsed apon the back of the mortgage deed as follows:</p> <p>“61, Jonathan Fawcett, the assignee of the mortgage, the conditions of the within mortgage being broken, this day en« tered upon the premises and took peaceable possession for con ditions broken, and for the purpose of foreclosing this mortgage. Jonathan Fawcett.</p> <p>“1 We, the undersigned, hereby certify and swear that Jonathan Fawcett, the assignee of the within mortgage, this day entered upon the premises described and referred to in the within deed, and then in our presence declared that he took peaceable possession of the premises for conditions broken and for the purpose of foreclosing the mortgage. Witness our hands and seals, the 11th day of April, 1857.</p> <p>“‘In presence of Edwin R. Walker. [Seal.]</p> <p>Israel Cutting, Elgin Barker. [Seal.]</p> <p>Charles Hersey.</p> <p>“ ‘ Sworn to before me, Charles Hersey, Just. Peace.’</p> <p>“ This certificate was duly recorded; and was held by me, if followed by the statute possession, to be legally sufficient to foreclose said mortgage. The plaintiff remained in actual occupation of the premises from the date of the entry by Fawcett until the date of the conveyance by Fawcett to the defendant; but there was no evidence that his occupation was not in subordination to Fawcett’s title under the mortgage. After the conveyance to the defendant, the plaintiff occupied a part of the premises under the defendant. The plaintiff filed a bill April 10, 1860, against said Fawcett, to redeem the premises, which was duly served, but no appearance was entered by Fawcett and no further proceedings were had therein, and the suit was entered ‘ neither party,’ at April term 1861, at the instance of the plaintiff. Fawcett conveyed the mortgaged premises to the defendant October 29,1860, by quitclaim deed in the ordinary form, .duly recorded. The consideration for this conveyance was the amount due on the mortgage, principal and interest, which was then paid by the defendant. At the same time, the mortgage note was indorsed to the defendant without recourse. At the time of the conveyance from Fawcett, the defendant held a second mortgage on the premises, given by the plaintiff, dated February 26, 1855, and duly recorded.</p> <p>“ The plaintiff, in avoidance of the alleged foreclosure, contended, 1. that, after the expiration of the three years for redemption, but during the pendency of the bill to redeem of Fawcett, the defendant took up the first mortgage at the plaintiff’s request, and agreed with him at the time of the conveyance from Fawcett to allow further time for redemution; 2. that such agreement to extend the time of redemption was, at all events, made by the defendant before said bill to redeem was dismissed ; and 3. that at the time of Fawcett’s deed the defendant had actual knowledge of the attempted foreclosure, and also of the pendency of the bill to redeem. The defendant denied each of these allegations; and there was much ounlliet of evidence under them. The plaintiff contended that the burden of proof to establish the foreclosure was upon the delendant; and I so ruled. But I was of opinion that the burden of establishing the above propositions was upon the plaintiff; and upon the whole evidence was not satisfied that either of the propositions was proved. The plaintiff, notwithstanding, insisted that upon the uncontroverted facts he was still entitled to redeem.”</p>

<p>The record of the laying out of a highway by county commissioners, after setting forth the length of the way, described its location further thus: li Said road throughout its whole length is laid out and located three rods wide on the southerly side of the metes and bounds aforedescribed, and adjoining thereto. From stone monument No. 8 to stake No. 14, all the land between the location of three rods wide and the Ashburnham road is taken for materials and slope.” Held) that the land described in the last clause was within the location of the way.</p>

<p>A lease of “ the wooden building south of the brick dwelling-house ” of the lessor does not pass, as parcel of the wooden building, nor as appurtenant thereto, any title in an outbuilding, yard and passageway within a curtilage or inclosure adjoining the wooden building but not distinct from the brick house; but any right of way or other easement necessary to the enjoyment of the demised premises passes as appurtenant thereto, although not expressly mentioned in the lease.</p>

Contract against the administrator of the estate of Charles Paine, deceased, on the following covenant in a lease, dated February 20, 1862, by Paine to the plaintiff, of real estate in Worcester, (including two buildings erected by the plaintiff,) for five years from August 1,1862: “ It is agreed by and between the parties, that at the expiration of this lease the buildings which have been heretofore erected by the lessee on the premises shall be appraised by three…

<p>Contract on a replevin bond conditioned that the defendant Whiting should “ prosecute said replevin to final judgment,” &c. At the new trial in the superior court, before Rockwell, J., after the decision reported 97 Mass; 316, the same facts were proved or admitted which were found at the former trial, showing, among other things, that the replevied property consisted of two impounded heifers, and that the defendant Whiting, then the plaintiff in replevin, never entered his writ nor prosecuted the action of replevin further than to give the bond and to receive the heifers from the officer. The defendants moved to amend their answer so as to set up in defence, “ that all the plaintiff’s claims, if any he bad, to the cattle, had been fully paid and satisfied at the time the replevin writ was served.” This motion the judge refused. The defendants then offered to prove “that the plaintiff was not the owner of the cattle replevied, nor entitled to the possession thereof, but in intermeddling with them was a trespasser and wrongdoer from the beginning; that the cattle were not taken from his possession or control, nor from the pound; and that all claims which he pretended to have at the time of impounding the cattle were paid and discharged by the officer before serving the replevin writ, and payment was received by the poundkeeper in satisfaction thereof, and no other expenses were incurred.” But the judge ruled that these facts, if proved, would be no defence; and directed a verdict for the plaintiff for nominal damages, which was returned; and the defendants alleged exceptions.</p>

Contract against William D. Davis, Cyrus Harris and Stephen Harris, copartners, “ doing business at Uxbridge under the name and style of William D. Davis & Co., Cyrus T. Scott, agent,” to recover wages due to Casey for labor of himself and his minor children in the defendants’ mill. Writ dated May 22, 1867.

Writ of entry by the assignee in insolvency of Daniel Bacon to recover land in Petersham. Writ dated November 30, 1863. After the decision in this case reported 97 Mass. 339, Susannah Williams, the original tenant, died, and her four heirs were summoned in her stead, two of whom, Almond Williams and Avira Williams, appeared and assumed the defence, and the two others were defaulted.

Contract by an attorney at law on an account with items extending from June 12,1863, to January 22,1864, the first three of which were for professional services rendered in consultations as to the rights of the defendants, and the rest for such services and for expenses and taxable costs in the action of the defendants against Richard D. Mowry and others, the school committee of Uxbridge, which was the subject of the decision reported 9 Allen, 94. Writ dated July 23, 1866.

<p>The assessment of a tax voted by a school district is invalid, if made in part on estates of nonresident owners before the return by the assessors to the town clerk of the certificate of their determination that those estates shall be taxed in that district in conformity with the Gen. Sts. c. 39, § 25.</p>

<p>Authority to regulate the keeping of dogs under the penalty of having them summarily destroyed without previous adjudication is within the police power vested in the legislature by the Constitution of the Commonwealth; and the provision of the St. of 1867, c. 130, § 7, that any person may, and every police officer and constable shall, kill or cause to be killed all dogs, whenever or wherever found, not licensed and collared according to other provisions of the statute, is within the constitutional limits of that authority.</p> <p>A constable to whom a warrant is issued under the St. of 1867, c. 130, § 7, by the mayor or chairman of the selectmen, directing him to proceed forthwith to kill or cause to be killed all dogs within the city or town, not licensed and collared according to the provisions of the statute, may enter, without permission, the close of the owner or keeper of such a dog, for the purpose of executing his warrant; and is not liable either for trespassing on the close, or killing the dog, or converting its collar, if, standing on the doorstep of the dwelling-house, and after being forbidden by the inmate to shoot, he shoots at the dog while it is lying on the ground in the close, and again while it is trying to escape to the highway, and a third time at it in the highway, and, after there killing it, brings back its carcass, with its collar, and leaves them at the place where it was lying when he first shot; nor if he reaches his hand into an open shed where the dog is‘tied by a rope attached to its collar, unties it, leads it by the rope to another part of the close, and there kills it and leaves it with the collar and rope; nor if he enters the dwelling-house through an open door to inform the inmates of his duty and show his warrant, and leads out the dog, wearing a collar, which had followed him in, (no objection being made to his entering or to his taking the dog and collar out again,) and kills the dog on another part of the close and there leaves it with the collar; the collar being in neither case separated by him from the animal.</p>

<p>Indictment for adultery with Esther Haskins., Trial in the superior court, before Brigham, J., who allowed a bill of exceptions of which the following are the material parts:</p> <p>Samuel B. Bumpas, a witness for the Commonwealth, after testifying tó seeing the performance of the criminal act at a particular place on his farm, was allowed, against the defendant’s objection, to testify further as follows : “ I have seen the parties walking and sitting together many times at various places on my farm when no other person was with them. I have seen them sitting together under the trees. I have seen them go in the direction of this place. I should think they were not relations.” There was no statement in the bill of exceptions of the time to which the testimony quoted had relation; whether before or after the criminal act testified to, or both before and after it.</p> <p>“ The jury retired at about eight o’clock on the evening of the day of the trial, and by direction of the presiding judge were allowed to disperse, by the officer having them in charge, upon the following morning at about one o’clock, when they had given notice to said officer that they had agreed upon and sealed up their verdict. At nine o’clock on the same morning they came into court and rendered an oral verdict of guilty. The contents of any paper sealed by them were not made known to the defendant or his counsel; and no sealed verdict was produced or opened. Neither the defendant nor his counsel had notice of the direction of the judge that the jury should be allowed to disperse upon agreeing and sealing up their verdict, or consented to such dispersion; and before they rendered their verdict the defendant’s counsel objected to the taking and recording of it, on the ground and only on the ground that they had separated without his consent and contrary to law.”</p>

Two libels for divorce from the bonds of matrimony, tried together before Foster, J., and by him reserved for the determination of the full court on the following report: “ The libel of the wife alleged her desertion for five years, caused by the extreme cruelty of her husband; that of the husband her desertion for five years without cause.

<p>A common count on an account annexed will give jurisdiction, although no account is annexed nor any bill of particulars filed with the writ when the action is entered; and is amendable by annexing such a bill.</p>

<p>Contract on an account annexed containing three items, the first for board of the defendant and his wife, the second for board of their child, and the third for half a cord of manure.</p> <p>At the tidal in the superior court, before Devens, J., the plaintiff offered in evidence the report of an auditor to whom the case had been referred, which was in the plaintiff’s favor on each item of the account, and the material part of which for the purposes of this report was as follows:</p> <p>“ The plaintiff claimed to be entitled to recover upon all the items of his account on an implied contract, and upon the first item on the ground of an express contract made by the defendant with the plaintiff’s wife in the plaintiff’s absence. The plaintiff offered himself as a witness, was admitted, and gave testimony generally upon all the items, tending to show an implied contract as to all of them; and then called his wife as a witness to prove an express contract as to the first item, made by her with the defendant in the absence of the plaintiff. The defendant objected to her being a witness ; and contended that the plaintiff could not proceed to establish his claim upon both grounds, but must elect which ground he would proceed upon; and also contended that he had elected to proceed upon the ground of an implied contract as to all the items, and ought not, and could not in law, be allowed to introduce his wife as a witness to prove an express contract of the defendant with the plaintiff’s wife in his absence as to the first item. I ruled that it was competent for the plaintiff to offer evidence of an implied contract as to all the items of his account, and his wife’s testimony of any express contract made by the defendant with her as aforesaid as to the first item; and that the plaintiff might proceed upon both grounds, and was not obliged to elect. I therefore admitted the wife as a witness as to such express contract. And I found for the plaintiff, upon the first item, on the ground of an express contract; and upon the other two items, on the ground of an implied contract, independently of the wife’s testimony.”</p> <p>The defendant objected to the introduction of this report in evidence; and also “ moved the court to allow the auditor to amend it so as to show that the plaintiff’s wife testified generally as to the whole case, but the judge overruled the motion upon the ground that it was not seasonably made, the report having been once recommitted during the term, and a supplementary report made five days before the trial.” The defendant then proposed to call the auditor as a witness to prove that the plaintiff’s wife did so testify; but the judge refused to admit such evidence, and allowed the report to be read to the jury whereupon the defendant submitted to a verdict for the plaintiff, and alleged exceptions.</p>

<p>Tort for injury of the plaintiff’s horses. Trial in the superior court, before Wilkinson, J., who allowed the following bill of exceptions:</p> <p>“ The plaintiff offered to prove that; as he was travelling on a public highway in Wareham, with two horses and a wagon, he saw that a telegraph wire of the defendants had fallen from one pole, and was hanging diagonally across the highway and within one or two inches of the surface of the road in the travelled part -that he drove up near the wire, stopped, got out of his wagon, went forward, and stood on the wire with both feet. The distance between the two poles on which the wire hung was two hundred feet; the intermediate pole from which the wire hung being on the left hand side of the public highway, and one hundred feet in advance of the pole on the side to which it remained attached. The plaintiff found that, by reason of the long sweep of the circle, with small pressure the wire would lie flat on the ground for the entire width of the travelled part of the road and judging it prudent to pass over the wire, he took his horse? each by the head, and walking backward himself led the horses over the wire. Before the off horse was fully over the wire, the wire came in contact with the near forward wheel. He slowly eased this wheel over the wire; stopped a moment; and then eased the off forward wheel over. Finding that he comd better control and guide his horses upon his box than at their heads on the ground, after having wasted a few moments the plaintiff got upon his wagon, took the reins, started his horses slowly forward, and drew the near hind wheel over the wire, when the wire came in contact with the off hind wheel. The wire, having acquired a vibratory motion, slipped and passed over instead of under the wheel, forming a loop around the hind axle of the wagon. At this point the strain caused the hind part of the wagon to rise up in the air. The plaintiff was no longer able to control his horses, and was thrown upon the ground. The telegraph pole broke with a crash, frightening the horses, which ran away with the carriage; and one of them was killed and the other seriously injured.”</p> <p>The judge ruled upon this evidence that the plaintiff could not recover, and ordered a verdict for the defendants, which was returned; and the plaintiff alleged exceptions.</p>

<p>Petition under the Gen. Sts. c. 43, §§ 19, 20, to the county commissioners of Plymouth, setting forth that “ whereas, at a regular meeting of the county commissioners on January 2, 1866, they laid out and established a new piece of highway, about six hundred feet in length, betwixt certain termini on South Avenue in South Abington, in front of the dwelling-house of the said petitioner, for which they awarded damages for land taken, removing buildings, stone walls, fruit and ornamental trees, which were not adequate for such taking and the inconvenience it occasioned said petitioner, therefore said petitioner prays that a jury may be granted and summoned to take the matter into consideration, and a further sum awarded the said petitioner as compensation, if in their opinion he is entitled thereto ; and also, that the same jury may revise, change or alter any portion of said highway as before described and laid out by said county commissioners, according to and within the provisions of a statute of this Commonwealth, if in their opinion such alterations are required and are within their jurisdiction.”</p> <p>The return of the county commissioners, under the Gen. Sts. c. 43, § 13, for the laying out of the piece of highway in question, showed that their proceedings in relation thereto were founded on a petition of citizens of Abington representing that South Avenue and Pleasant Street, which connected with it, were narrow, crooked and inconvenient, and “ the public good required that the same be widened, straightened and new located,” and praying “that a view of the same may be had, and that the. same.may be widened, straightened and new located, and such parts discontinued as may be rendered unnecessary by such locations and alterations.” It further showed that after due notice and hearing the commissioners voted to “ widen and straighten and new locate said highways as follows: ” first, for a certain distance, “ to widen the highway known as South Avenue,” between certain bounds specified; then “ to locate a new highway, beginning at a stake set in the ground in the southerly line of South Avenue ” and thence running in a specified line, in part on land of the petitioner, “ to the highway and tc a stake, said section of highway to extend fifty feet in width on the northerly side of said line; ” and finally, for a certain distance, “ to widen said highway on the northerly side of said avenue,” beginning “ at a point fifty feet from and at right angles with the last named stake.” And it showed also that the commissioners at the same time ordered the work to be done by and the expense to be assessed on the town of Abington, and awarded damages “ to the several persons and corporations whose lands are taken for said widenings and locations; ” among others, to this petitioner in the sum of $890.</p> <p>The first jury summoned under his petition failed to agree on a verdict; whereupon a warrant was issued for another jury, and, at the request of the petitioner, William H. Wood was appointed to preside at the trial, who certified to the superior court his rulings, with a verdict “that it is not necessary and proper that any alterations be made in the highway ” and assessing the damages of the petitioner in the sum of $775. The superior court ordered that this verdict be accepted and judgment entered thereon ; and the petitioner appealed.</p> <p>The certificate of the proceedings at the second trial showed that, after the petition and the warrant for the jury had been read, the counsel for the respondents objected to any proceeding by the jury in the matter of the location of the way, because “ no specific alterations were prayed for by the petitioner between the termini as established by the commissioners ; ” that the presiding officer “ overruled this objection, but suggested to the counsel that they should specify what alteration the petitioner prayed for;” and that the petitioner’s counsel afterwards filed a specification in writing of the alterations which he desired, all of them being confined to the petitioner’s own land.</p> <p>The other portions of the certificate which are material were as follows:</p> <p>One of the selectmen of Abington, on examination as a witness, produced a copy, attested by the town clerk, of the record of a vote of the town at a town meeting held on October 24, 1866, “to adopt” an article in the warrant for the meeting, which was, “ to see if the town will direct the selectmen to petition the county commissioners to discontinue the new location of the road’ on South Avenue near the house of Benjamin Hobart ” and “ widen and straighten South Avenue ” in a different manner; “or otherwise that the selectmen act as in their judgment the best interest of the town may require, in relation to said road.” This copy the petitioner offered in evidence ; but it was excluded by the presiding officer.</p> <p>Luther Briggs, a witness for the petitioner, and by occupation a surveyor, being under examination, the petitioner proposed to prove by him “ that some change in the commissioners’ location, other than the one specified in the petitioner’s specification, would make the road more convenient for travel than the commissioners’ location ; ” but, on the objection of. the respondents to such testimony, the presiding officer ruled “ that, inasmuch as the petitioner had specified the particular alteration which he prayed for, he must be confined in his evidence to that particular location, and could not give in evidence the advantages of any other alteration ; ” and excluded the testimony; and also ruled “ that the jury were confined to the termini upon the petitioner’s land, and could only make alterations between those termini, and could make no alteration other than the one prayed for in the petitioner’s specification ; ” and further ruled “ that! it appeared from the whole record of the county commissioners in the premises, thát the part of South Avenue, from the point where the new way located by the county commissioners leaves the old road to the point where the said new way joins the old road, so far as not included in and necessary for the travel of other roads entering thereon, was discontinued.”</p> <p>A plan of the premises, used in the argument, showed that Pleasant Street entered South Avenue between the two points on the avenue between which the commissioners voted “to locate a new highway.”</p> <p>“ Charles H. Paine, one of the county commissioners, being examined as a witness, was asked 6 What conversation did you have with the petitioner in relation to cutting down Pleasant Street in front of his house, at the time of the adjudication? The question was objected to, but the presiding officer ruled that, inasmuch as both parties had put in evidence, without objection, tending to show that gravel might be obtained from that locality for the purpose of making the alterations in the highway contemplated, the question might be put to show that gravel might be there obtained without injury to the petitioner. In answer, the witness stated that he had a conversation with the petitioner at the time mentioned; and that the petitioner said that it would not injure his premises to cut down the road one foot, and afterwards admitted that to cut down one foot and a half would not injure them. The following question was also put to Mr. Paine: ‘ Did the commissioners, in their return of the laying out of this road, determine and specify the manner in which such new highway should be made, and also the time within which it should be completed ? ’ This was objected to, and ruled out, because a matter of record.</p> <p>“A witness, called as an expert in the value of real estate, was asked ‘ What is the effect, in your opinion, of the county commissioners’ location, upon the petitioner’s land and buildings upon the north side of the highway?’ It appeared in evidence that the petitioner owned the land on both sides of the highway, and nothing intervened between his land on the north side of the highway and the land taken by the commissioners’ location, except the old highway. The question was objected to, but was admitted.</p> <p>“It appeared that the petitioner owned certain buildings upon the south side of South Avenue standing upon the land taken by the county commissioners’ new location. His counsel, in order to prove that some portion of the land between the buildings and the travelled part of the highway belonged to him, called him as a witness, and he testified that he was in the eighty-sixth year of his age ; that at .the time of his earliest recollection an old wall was standing between the place where said buildings now are and the centre of the highway; that thirty-five or forty years ago the old wall was taken down; that he thought he could remember the wall as standing there when he was ten years of age. The evidence was objected to, and the presiding officer ruled that, as it appeared that no wall had existed there since thirty-five or forty years ago, the evidence was not admissible for the purpose stated, no other evidence being in the case, or being offered, to show the ownership of the land in question.”</p>

<p>In an action for a debt, begun twelve years after the debt accrued, these facts appeared: The defendant, a sailor, was bom and had his domicil in Barnstable, and was there residing with his wife and children, six years before the accruing of the debt, when he went alone to California, remained there two years, then returned, and lived 'in Barnstable during the other four years, except one interval of fourteen or fifteen months when he was on a voyage. The family was then broken up by the insanity of his wife, who was removed, by legal commitment, as a resident of Barnstable, to a hospital in another place, where she died two years afterwards, while he was at sea; the children were put at school in a different part of Barnstable; and all his furniture was disposed of, except what was removed to a bedroom in his brother’s house in Barnstable, which for the twelve years ensuing was always kept for his use when he was in the town, and at other times as a spare room, and was used by him when there, except when he stayed in the neighboring house of his father. During these twelve years, he was absent from Barnstable most of the time $ on foreign or coastwise voyages, one of them lasting eighteen months; In New York; in Boston; and in the “ oil regions; ” but he returned to Barnstable at intervals for short visits, and once (about the middle of the period) stayed there an entire year. For the first four of the twelve years, except six months when he was on a voyage, he lived in Bew York; and during the last two of the four he visited Barnstable only twice a year. In the last half of the twelve there were three successive years, the first of which he passed as a pilot between Bew York and Boston; the second as a watchman in Bew York; and the third in the oil regions. During the sixteen months immediately preceding the end of the twelve years and the beginning of the action, he was “in Barnstable and in Boston.” There was no evidence that he had any house, furniture, or property of a permanent character, elsewhere than in Barnstable, during the whole period; when his wife died her remains were brought to Barnstable for burial; and he testified that his intention always was to retain Barnstable as his home and to retara to it. But he testified also that, when he went to Bew York and to the oil regions, “ he went looking for business, and intended to remain as long he had business; ” and that he paid no poll tax in Barnstable, and voted but once there, during the twelve years though he testified further that neither did he pay a tax nor vote elsewhere. Held, that his domicil was in Barnstable for such a length of time after the debt accrued that the statute of limitations was a bar to the action.</p>

Tout against the sheriff of Dukes County for false imprisonment of the plaintiff in the jail at Edgartown.

<p>Writ of entry to recover three parcels of land in Sharon. Plea, nul disseisin. At the trial in the superior court, before Morton, J., it appeared that the demandant was the wife of Reuel W. Bartlett, to whom she was married in 1855; and was a sister of the tenant, both of them being children of Francis Drake, who died, intestate, in that year. The demandant claimed title under a partition of her father’s estate among the heirs, made by order of the probate court and by it accepted and confirmed in July 1856. The tenant claimed title under a deed from the demandant and her husband, dated August 5,1856, describing four parcels of land, the validity of which deed the demandant denied and sought to impeach.</p> <p>The tenant testified that he bought of the demandant for six hundred dollars all the estate set off to her in the partition, and paid part of the purchase money; was told by the demandant’s husband to take the deed to her, have her sign it with his name as well as her own, and then bring it to him and he would acknowledge it; took it to the demandant accordingly, and she affixed her own signature to it, and also signed her husband’s name in his absence; paid her the balance of the purchase money; and then brought the deed to her husband, who acknowledged it before a justice of the peace. The justice was called as a witness; and testified that the demandant’s husband came to him with the deed, and said that the name of Reuel W Bartlett affixed to it was his signature, and asked him to witness the deed and take his acknowledgment, which he did on August 6, 1856.</p> <p>The demandant and her husband both testified that they knew only by the tenant’s representations what was set off to her in the partition of her father’s estate; that he represented to them that all the land set off to her consisted of two parcels, one of three acres, the other of five acres; that she agreed to sell those two parcels, and no more, for six hundred dollars; and that the tenant on several occasions exhibited to them a deed “ for them to execute,” which contained a description of those two parcels only, and was not the deed under which the tenant claimed. The demandant admitted receiving the six hundred dollars, but testified that the deed which she signed was the deed so previously exhibited to her and her husband by the tenant, or one which he represented to be such. And the demandant’s husband in his testimony denied that he ever saw the deed after his wife signed it, or. told the justice of the peace that any signanature affixed to it was his, or acknowledged it before the justice.</p> <p>The judge instructed the jury “ that, if the demandant signed both her own and her husband’s names to the deed, in his absence, the tenant knowing the fact, and if afterwards the husband, before the delivery of the deed, adopted and acknowledged the signature to be his, and acknowledged the deed, this would be a sufficient joining in the deed by the husband to make the deed valid and pass the title to "the tenant; that the question whether the tenant had fraudulently misrepresented the contents of .the deed, or fraudulently substituted one deed for another, at the time of execution, was not open, as, in order to recover on that ground, it was necessary that the demandant should have paid or tendered to the tenant the consideration which he paid for the deed.” The verdict was for the tenant; and the demand-ant alleged exceptions.</p>

<p>The possession of a tenant of land may be so far adverse as to entitle him to compensation for improvements, under the Gen. Sts. c. 134, § 18, although he holds a limited estate which entitles him to the possession at the same time, so that his possession does not constitute a disseisin of the tenant in remainder; if his holding is not in fact and intent under the partial and rightful title, but under a claim of the entire interest.</p> <p>On the trial of a writ of entry brought by a widow to recover land owned originally by her and her husband jointly, Held, that the execution by him, for a full consideration, of a warranty deed of the fee of the land, she joining to release do ver; following deeds by which he in fact asserted, apparently with her assent, that he had acquired her original interest; and followed by a repurchase and a reconveyance of the land by him, she again joining to release dower; gave the tenant, who subsequently purchased the land, such reason to believe that the title under which he held it was good, as to entitle him to compensation for improvements, under the Gen. Sts. c. 134, § 19.</p> <p>The improvements for the value of which a tenant of land, against whom judgment is recovered on a writ of entry, is entitled to compensation under the Gen. Sts. c. 134, §§ 18, 19, are such only as were made while the possession of the maker was adverse or mder a title which he had reason to believe good.</p>

<p>Tort against the members of the parish committee of the First Parish in Dedham, for trespassing on the plaintiff’s close adjoining the burial ground of the defendants’ parish, and digging away an embankment there built by the plaintiff to protect his land from the flow of surface water from lands adjoining. The defendants answered, admitting that they entered the plaintiff’s close and dug a small trench through his embankment; and alleged “ that there was a valley in the land of the burial ground, sloping down to the close of the plaintiff, which valley extended, still sloping, down through the close; that there was, on one side of the valley in the burial ground, a row of seven ancient tombs, for the burial of the dead, the tops of the sills and the bottoms of the doors of which were several inches lower than the top of the embankment on the plaintiff’s close, which embankment was recently erected; that one of the tombs was and had been for many years owned by the parish and used as a receiving tomb; that the bottoms of the tombs were about two feet below the top of the sills; that at the time of the alleged trespass there was a freshet, caused by heavy rains and the melting of a great body of snow upon the ground, and by reason of the embankment there was a great accumulation of water above the embamcment and in the valley in the burial ground; that said water had risen so high that it was on the point of flowing over the tops of the sills of said tombs; that there were in all of said tombs, except the receiving tomb, many dead bodies permanently buried, and in' the receiving tomb a great number of dead bodies of persons who had died during the winter, temporarily deposited there until the ground should thaw out so that they could be buried; that in said state of the water and the tombs, they, as the parish committee, entered upon the close of the plaintiff, and dug the trench through the embankment, to prevent the tombs from being inundated with the water raised by said embankment, and desecrated, and to prevent a violation of the Gen. Sts. c. 28, § 12; and that in so doing they did no unnecessary injury to the close, and nothing more than was necessary to prevent the inundation and desecration of the tombs.”</p> <p>Under an agreement that the allegations of the declaration and answer should be taken as agreed facts, the case was submitted in the superior court to the determination of the court, without a jury; which ordered judgment for the plaintiff, and assessed damages in the sum of five dollars; and the defendants appealed.</p>

<p>An aqueduct corporation, is not a manufacturing corporation within the meaning of the Gen. Sts. c. 11, § 12, cl. 2, so as to render the pipes, with their ordinary apparatus of gates, shut-offs, cocks and faucets, which it uses to conduct and distribute water in a town, taxable there as machinery, although in the gate-house adjoining the pond in another town, from which it draws the water, there are chambers and passages fitted with filters and screens to purify the water and keep it free from foreign substances.</p>

<p>Tort under the Gen. Sts. c. 44, § 22, for injuries sustained by Mrs. Gilbert from falling in a highway which the defendants admitted that they were bound to keep in repair.</p> <p>At the trial in the superior court, the plaintiffs’ evidence tended to show that the facts were as follows : On January 30,1867, Mrs. Gilbert turned from St. James Street into Shawmut Avenue, a much frequented highway in Roxbury, and was walking along the sidewalk in the avenue, when she slipped on ice which had formed there, and fell, and was injured. The sidewalk was a graded walk of earth, between five and six feet wide, bounded towards the carriageway by a curbstone, and “ generally level, though lower than the curbstone on the outside by some three or four inches, and with some slight depressions on parts of the surface, in which depressions and on the surface water at times stood after rains, and sometimes, after heavy rains, extended in places over two thirds of the width of the sidewalk.” Snow had fallen on January 17, and again during the week following, which was not removed from the sidewalk, but trodden down there by travellers in a path from two and a half to three feet wide along the middle of the walk, and marked by occasional footprints outside of this path. On January 25 there was a heavy rain, which was followed by continuous freezing weather to the time of the accident. This rain washed all the loose snow off from the sidewalk, or caused it to settle, so that in the cold weather following the walk was covered with solid ice; and it was described by the witnesses “ as being at the time of the accident rough from the footprints of travellers throughout, but more especially along the middle, and as forming what the witnesses variously called ‘ a ridge’ or a ‘rounding up,’ from the sides of the walk along the middle part of it, for some distance, from three inches, or the length of the finger, to five inches at the centre part, higher than at the edge, and sloping off towards the edge.” The morning of the day of the accident “ was pretty cold,” and “ there was a great body of ice and snow all around, and it was slippery everywhere in the vicinity.” Mrs. Gilbert testified “ that there was nothing which caused her to fall but the slipperiness of the ice; that she did not think the depression in the sidewalk had anything to do with the rounding of the ice on the walk at the time she fell; that she did not strike her foot against anything, but that, after proceeding three or four feet along the avenue from the corner, and while walking along near the centre of the walk, as described, she stopped, thinking she would turn to go into the street; lifted her foot for the purpose of so doing; and at the moment the other foot slipped from under her, and she fell, striking her shoulder and back.”</p> <p>On this evidence the judge directed a verdict for the defendants, which was returned; and the plaintiffs alleged exceptions.</p>

<p>Action on the Gen. Sts. c. 137, by the children and only heirs of Samuel Hawes, Senior, deceased, for possession of a Iwelling-house and land in Weymouth. Writ dated April 16, 868. The answer alleged ':itle to the premises in Elizabeth Trafton, and that the defendant was her tenant. At the trial in the superior court, on appeal from the judgment of a trial justice, the facts appeared as follows :</p> <p>Samuel Hawes, Senior, was in possession of the house and land when he died intestate in January 1864. In October 1865 the defendant entered and began to occupy them without permission from anybody. On November 23, 1865, the plaintiff Samuel Hawes, as administrator of the estate of his father, offered them for sale at auction, under license of the probate court; but no sale was effected. “ The defendant thereupon applied to the plaintiffs for liberty to continue to occupy the premises as their tenant until the estate was sold; and it was agreed between them that he might do so, paying them rent at the rate of three dollars per month and agreeing to quit whenever required to do so by the plaintiffs ; and the defendant continued to occupy under such agreement up to the time of bringing this action. On August 15,1866, he paid the plaintiffs nine dollars on account of the rent; but had declined to pay the balance, giving as his reason his inability to do so.” On February 6,1868, the plaintiffs gave him due notice to quit for nonpayment of rent.</p> <p>The defendant offered to show that on August 10,1861, Sam. uel Hawes, Senior, made and delivered a deed of the premises to Elizabeth Cook, since become, by marriage, Elizabeth Trafton, “to have and to hold the premises to the said Elizabeth Cook, her heirs and assigns forever, after my decease, upon condition that she continues to keep my house and take care of me during my natural life, or her own natural life if she dies first,” which deed was recorded in the registry of deeds for Norfolk on August 12, 1861; of all which the defendant was ignorant, but the plaintiffs were well aware, at the time the defendant made his agreement with them after the offer of the premises for sale at auction in November 1865; that soon after her grantor’s death Mrs. Trafton entered the premises for the purpose of taking possession of them and there residing, but, finding the house out of repair, left the premises, gave up her intention of residing there, and never afterwards entered on or took possession of them ; that after August 15,1866, when the defendant paid rent to the plaintiffs, and before the beginning of this action, Mrs. Trafton forbade him to pay rent to the plaintiffs and demanded the payment of rent from him to herself; and that on April 27, 1868, Mrs. Trafton brought a writ of entry against the plaintiff to recover the premises.</p> <p>On the facts proved and the defendant’s offer of evidence, the presiding judge directed a verdict for the plaintiffs, which was returned ; and by agreement of the parties reported the case for revision by this court.</p>

<p>Bill in equity alleging that the plaintiff bought land of Charles B. Dana; mortgaged it back as security for part of the purchase money; then conveyed it to Samuel Tompson as security for a debt; afterwards enlisted as a soldier, and, while, absent on military duty, remitted to Tompson the amount he owed him, and through ignorance as to its legal effect, and intending to secure his property, ordered Tompson to convey it to the plaintiff’s wife, which Tompson did; that after this his wife died intestate, leaving no issue, and her father, Dennis Rourke, was heir-at-law; that then the defendant took and procured an assignment to herself of said mortgage, and also procured from Dennis Rourke a deed of his interest as heir, and by virtue of these titles so procured entered upon and was holding the premises; but that the plaintiff was and ever had been ready to pay the defendant the mortgage debt and interest, and all expenses incurred by her in the care of the land; and praying for a decree to compel a conveyance of the land by the defendant to the plaintiff. The defendant demurred for want of equity; and the case was reserved by the chief justice, on. the bill and demurrer, for the determination of the full court.</p>

Contract on a bond. After the decision reported It Allen, 132, affirming the judgment of the superior court for the penalty of the bond, which was one hundred dollars, but reversing it so far as execution was ordered to issue for the whole amount, and directing the case to be referred to an “ assessor,” unless the parties should agree upon the amount for which execution should issue, the superior court passed an order for the appointment of an “ assessor,” “ to hear the…

Tort for slander. The declaration alleged that “ the defendant publicly, falsely and maliciously testified in the superior court for the county of Norfolk as a witness for one Fenner Cook, in an action therein pending in which said Betsey Cook was plaintiff and said Fenner Cook was defendant, of and concerning the plaintiff, substantially as follows, viz: Her (meaning the plaintiff) character for truth and veracity is bad. Her (meaning the plaintiff) moral character is bad.

<p>Tort for malicious prosecution. The declaration contained *wo counts, of which the substance was as follows:</p> <p>The first count alleged that the defendant, on or about November 5,1866, falsely and maliciously complained to a tria, justice for Norfolk that the plaintiff wilfully and maliciously injured the defendant’s horse; and procured a warrant on this complaint, and caused the plaintiff to be arrested thereon and taken before the justice; and then and there falsely testified that the plaintiff did commit the injury; “ and thereupon” the justice found the plaintiff guilty, and ordered him to stand committed to jail; and the plaintiff appealed, and, not being able then and there to furnish bail to prosecute the appeal, was imprisoned until he procured bail; and afterwards, on the trial of the complaint in the superior court, on the appeal, it appeared from the evidence that no malicious or wilful injury was done by the plaintiff or any other person to the horse, and the plaintiff was “ thereupon ” acquitted and discharged; by which false and malicious complaint and prosecution the plaintiff suffered injury, &c.</p> <p>The second count alleged that the defendant, on or about the same date, falsely.and maliciously complained to the same trial justice that the plaintiff had been guilty of drunkenness; and procured a warrant on this complaint; and caused the plaintiff to be arrested thereon and taken before the justice; and then and there falsely testified that the plaintiff was drunk as averred in the complaint; and “ upon that evidence” the justice found the plaintiff guilty, and sentenced him to pay a fine and costs; and the plaintiff appealed, and, not being able at once to give the requisite bail, was committed to jail and imprisoned until he procured it; and afterwards in the superior court, on the appeal, the plaintiff appeared to answer to the complaint, but it was dismissed without trial and the plaintiff discharged; by which false and malicious prosecution the plaintiff suffered injury, &c.</p> <p>The defendant demurred “ for the reason that said declaration does not state a legal cause of action,” and assigned specially “ as the particular in which said declaration is defective, that it conclusively appears by said declaration that there was probable cause for the complaints therein alleged to have been made by' the defendant against the plaintiff;” the superior court sustained the demurrer; and the plaintiff appealed.</p>

<p>Contract on an account annexed for $250 as the price of a horse. Writ dated September 5, 1867. Answer, a general denial. At the trial in the superior court, before Morton, J., the plaintiff testified that he had the horse for sale, and on the evening of August 12,1867, the defendant looked at it and inquired the price, and was told $250; that the defendant said nothing further about price, but asked the character of the horse, and was told that the horse was six years old, sound, kind, and afraid of nothing but goats; that the defendant wished to take the horse to try it, and at this the plaintiff hesitated, and the defendant then told him that “ if he would let him take the horse and try it, if he did not like it he would return it, in as good condition as he got it, the night of the day he took it,” to which the plaintiff assented; and that the next day the defendant sent his servant and took the horse from the plaintiff about eleven o’clock in the forenoon.</p> <p>The- plaintiff further testified that the horse was taken for the purpose of trying it; that a short time after it was taken a message was brought to him, that, before it reached the defendant’s place, it escaped from the servant, ran away and was injured; that on receiving the message he went to the stable where the horse was, and found it injured so severely that it could not be used or removed prudently; that, on account of the injury, the defendant had no opportunity to try the horse; that he did not expect that the defendant would finally take the horse until after he had tried it; that the defendant had neither returned the horse nor offered to return it; and that the plaintiff had nothing to do with the horse since he put it in charge of the defendant’s servant. There was no evidence, and it was not contended by the plaintiff, that the horse was injured by fault of the defendant Dr his servant.</p> <p>The judge ruled that the plaintiff could not maintain his action on this evidence, and directed a verdict for the defendant, which was returned; and the plaintiff alleged exceptions.</p>

Contract by the chairmen of the selectmen of Hingham, Weymouth and Quincy, describing themselves in the writ “ as they are jointly charged… Held: nor did they hold until long after September 25, any town meeting on the subject matter of the St. of 1862, c. 177; and they were not heard by or before the commissioners; nor did they have any selectman, agent, attorney or other representative before the commissioners; nor did they ever ratify, approve or confirm, in any way, the…

Indictment for keeping a liquor nuisance in Fall River on May 25,1868, and divers other days between that day and September 16,1868, when the indictment was returned by the grand jury. In the superior court, before the jury were impanelled, the defendant filed a motion to quash the indictment on the ground that the Gen. Sts. c. 87, §§ 6,7, on which it was founded, were repealed by the Sts. of 1868, cc. 141, 311.

<p>An indictment for larceny of “ one promissory note of the value of three hundred dollars, and one piece of paper of the value of three hundred dollars, of the goods and chattels of A. B.,n is sufficient without a fuller description of the stolen property; although there was evidence before the grand jury which would have enabled it to be more fully described.</p>

<p>Tort for personal injuries sustained by the plaintiff by being run over by the defendants’. tender and locomotive engine, on the evening of December 1,1865, upon a side track at the station in Fall River of the defendants’ railroad, which ran from Boston through Fall River to Newport. At the trial, before Foster, J., a plan of the Fall River station was introduced in evidence, substantially as follows:</p> <p> </p> <p>The plaintiff testified that he was mastered out of service as a soldier on July 28, 1865, and then went to Boston, returned to Fall River the next day, and resided in Fall River from that time until after the accident, on a street which connected with the section of Ferry Street which lay east of the defendants’ station, which he passed twice daily oh his way to and from his work; that during all that time he saw carriages conveying passengers to and from the station, driven to and from the open space north of the building marked “ Car-house ” on the plan, which building was used as the only passenger-house at the time when he went to Boston in July and until shortly before the time of the accident; that passengers coming from Water Street or the northern section of Ferry Street were accustomed to traverse the open space east of the old passenger-house, cross the side track, and enter the cars from the narrow platform between the tracks, without any obstruction, the fence marked by a dotted line on the plan not being erected until after the accident; and thát up to the day of the accident he had no knowledge by observation that either carriages or passengers came to the new passenger-house.</p> <p>There was other testimony, however, to the effect that the use of the old passenger-house was discontinued and the new passenger-house began to be used in September or October 1865; that the narrow platform between the two tracks was not built until within a month before the accident; and that while the old passenger-house was in use there was a broad platform in front of it, extending over the space which at the time of the accident was traversed by the side track and the narrow platform.</p> <p>The plaintiff further testified that on the morning of December 1, 1865, he took passage on the defendants’ cars from Fall River to Boston, together with nearly a hundred others who like him were going to Boston to be naturalized in the United States court; and that he entered the train from the platform adjoining the new passenger-house, and supposed that all the others did so also ; that they all returned from Boston in a train which reached Fall River about half past six o’clock in the evening, on the main track; that it was then very dark, “as dark as a tunnel;” that he alighted from the train, with other passengers, upon the narrow platform, at a point about in front of the middle of the old passenger-house, and proposed to himself to cross the side track and go to the northern side of that house, to make water, and then to pass into Ferry Street and follow Ferry Street on his way home; that the narrow platform was about “ knee high ” and the first rail of the side track was about two feet from the base of it; that other persons were standing on the platform at the time, some of whom he saw there before he alighted from the car; that he made no halt, but stepped down at once from the platform, looking both up and down the track as he did so to see if anything was coming over it; that he knew that “ there was nothing to come from Newport, because the next train to arrive was the steamboat train from Boston to Newport,” but nevertheless, before he stepped on the track, looked in the direction of Newport and saw nothing approaching; that he saw no light from a lantern, or from any other source, nor any other indication of an approaching train, in either direction; that no one said that any car or engine was approaching, or warned him not to leave the platform ; that he stepped forward, and was in the act of crossing the side track obliquely, but had not reached the middle of it, and one of his feet was still resting on the rail nearest to the platform, when he heard a voice halloo, and felt a hand grasp his shoulder, and at the same moment was struck and knocked down by the tender attached to and backed by the engine of the train by which he had come from Boston, which had been switched off upon the side track and was backing to an engine-house east of Ferry Street, and, with the tender, ran over and injured his leg.</p> <p>There was other testimony in substance as follows : As to the lights ; that before the new passenger-house was built there used to be an oil lamp “ beside the old depot,” but at the time »f the accident no light was visible on or about the outside of any of the station buildings except what shone through the windows of the rooms in the new passenger-house, and this was intercepted from the plaintiff by the cars of the train in which he had arrived; and that there was no stationary lantern in the vicinity of the buildings at that time, but a fortnight after-wards one such lantern was placed on the outside of the new passenger-house, and another at the corner of Eagle Street, and lights were provided also “ on the west side ” of the tracks. No allusion was made in any part of the testimony to any light upon the engine.</p> <p>■ As to the practice of backing down to the engine-house; that it was discontinued after the accident, but not for “ some time ” afterwards.</p> <p>•As to the use of the narrow platform by passengers; that “ passengers continued to come upon the narrow platform until the fence was built, and did so occasionally to the time of the trial, often crossing right before the engine; ” and that it was “handy to get on that way while the engine was standing.” One witness testified: “Time and again I’ve seen passengers on the narrow platform.” “ Several times I have seen passengers enter and leave the cars by the narrow platform, and if they did not choose to go to the end of it they stepped down upon the track and cut across.” Another testified: “ I often see passengers on the narrow platform and getting upon it by the side of it.”</p> <p>On the evidence of which the foregoing is the substance, the defendants contended that the plaintiff had not shown that he was in the exercise of due care, nor had shown that they were negligent; and the judge withdrew the case from the jury, and reserved it for the determination by the full court of the question whether that evidence (which he reported in detail) would sustain a verdict for the plaintiff; if so, the case to stand for trial; otherwise, judgment to be entered for the defendants.</p>

<p>Contract. The declaration alleged that “ the defendant made a promissory note, a copy whereof with the indorsements thereon is hereto annexed, payable to William Wilcox or order, who indorsed the same to the plaintiff, and the defendant owes the plaintiff the amount of said note and interest,” and set forth a copy of the note and indorsements. Answer, that “ the defendant denies that the plaintiff is the holder of any such note as he has declared upon, and that he owes the plaintiff the amount thereof, or any part thereof.”</p> <p>At the trial in the superior court, before Brigham, J., the plaintiff introduced the note in evidence; and rested his case. The defendant then called witnesses, and, upon the suggestion of the plaintiff that he should state what he expected to prove, offered to prove “ that the plaintiff never owned the note, that it was never indorsed to him, that it was never delivered to him, that he never had it in his possession or control, and was ignorant that suit was brought upon it, and that he was not the holder of the note when the suit was brought, and never has been.”</p> <p>The judge excluded the evidence thus offered, and directed a verdict for the plaintiff, which was returned; and the defendant alleged exceptions.</p>

Crapo and Emily M. Almy as administrators of the estate of Benjamin R. Almy, the deceased husband of said Emily, and overruling a motion of the appellant, one of the heirs of the deceased, for the appointment of three disinterested persons to determine, under the Gen. Sts. c. 98, § 8,* a sum which the administrators should allow for the use and occupation by said Emily, since the death of her husband, of a dwelling-house and land owned and occupied by him when he died; heard…

Bill in equity filed September 11, 1867, by Betsey R. How-land, the widow, and Cynthia S. Howland and Charles W. Howland, both minors, two of the eight children of Daniel Howland, Jr., who died September 3,1865 ; praying for a decree to compel the executor of the will of the deceased to pay or transfer to the plaintiffs respectively certain personal property therein bequeathed. The answer denied that by the terms of the will they were entitled to such payment or transfer.

<p>Bill in equity by the widow of Barzillai King to relieve her estates of dower and homestead in real estate left by her husband, who died in 1863, from any claims under a mortgage made by him in 1845, and assigned on April 30,1864, to the defendant, who on January 15,1864, gave bond to the executor, under the Gen. Sts. c. 102, § 9, to pay the debts of the deceased, in order to free the real estate from liability to sale for their payment. The case was reserved by Foster, J., for the determination of the full court, on the bill, answer and agreed facts, the substance of which appears in the opinion.</p>

Contract for work done and materials furnished in repairing a dwelling-house.

Contract against an inhabitant of Attleborough, for a balance due on an account annexed, containing twenty items for whiskey, rum, ale and gin, sold to him by the plaintiff at various dates from June 1865 to August 1866, in quantities varying from two gallons to a barrel. Writ dated June 24,1867.

Contract for the amount of one half of the avails of a mortgage to the Attleborough Bank, which amount the plaintiff alleged was due to him. by virtue of a written contract signed by the defendants, as follows: “ In consideration of our having this day purchased of Bartholomew Cushman eight shares of the stock of the Attleborough Bank, and having received his obligation therefor and power of attorney to transfer the same, we therefore do hereby promise and agree to account…

<p>An estate of homestead created by the St. of 1855, c. 238, cannot be affected by the will of the householder.</p> <p>A widow who continues to use, for the purpose of storing her furniture, after the death of her husband, a room in a dwelling-house occupied and owned by him at the time of his death as a homestead under the St. of 1855, c. 238, continues to occupy the homestead, within the meaning of the statute, so as to be entitled to the benefit of the homestead exemption.</p> <p>The submission of a case to the judgment of the court on agreed facts waives all defects in pleading.</p>

Tort for breaking and entering the plaintiff’s close in Easton. Answer, a general denial of the plaintiff’s allegations ; and an allegation of a right of way over the premises.

Writ of entry dated May 27, 1867; submitted to the judgment of the court on agreed facts of which the following is the substance: Israel Brightman, by his will, proved and allowed in 1838, devised “ to Daniel and John Brightman and to their heirs and assigns” land in Westport, on condition that the said Daniel and John should pay certain amounts to certain persons; bequeathed to them personal property; and further provided: “ If the said Daniel or John shall decease leaving…

Trustee process for board furnished to the principal defendant, against whom judgment was entered on his default. Writ dated February 9, 1866.

<p>Complaint under the mill act, Gen. Sts. c. 149, setting forth that Alexander Hodges, Benjamin A. Chace, and the Digbton Manufacturing Company, severally owned and were occupying mill privileges and mills on Three Mile River, and erected and were maintaining a reservoir dam on Rumford River, a tributary of Three Mile River, for the use and benefit of their mills below, thereby flowing the complainants’ land, &c. The respondents denied that they erected or were maintaining the reservoir dam; and alleged that it was erected, maintained and owned by the Wading River Reservoir Company, a corporation, and that the remedy, if any, was against that corporation, and not against the respondents individually.</p> <p>At the trial in the superior court, before Rockwell, J., it appeared that the Wading River Reservoir Company was incorporated by the St. of 1866, c. 171, and organized in September of tiiat year; that all the shares in its capital stock, except a few which had never been disposed of to any person, were owned by the respondents, who each owned a mill on Three Mile River that the corporation owned no mill, but bought land and built the reservoir dam upon it, on the Rumford River, for the benefit of the respondents’ mills, and of one other mill on Three Mile River owned by a person who contributed money towards building the dam, but was not a stockholder in the corporation, and that the complainants’ land was overflowed by the water raised by the dam.</p> <p>Upon these facts, the respondents contended that they were not individually liable to this complaint, but the remedy, either under the mill act or at common law, was against the corporation ; and the complainants contended that the respondents were liable upon this complaint in the same manner as if, without the act of incorporation, they had bought the same land as tenants in common and jointly erected the dam on it for the benefit of their mills, and that the St. of 1866, c. 171, was an arrangement between the respondents themselves, of which the complainants had no occasion to take notice, and which would not shield the respondents from individual liability.</p> <p>The judge ruled that the evidence would not sustain the complaint, and directed a verdict for the respondents, which was returned ; and the complainants alleged exceptions.</p>

<p>After verdict for the complainant on a complaint for flowing land, and the entry of an order for a jury to assess his damages, the parties submitted the question of damages to arbitration in pais and the respondent paid the award and took the complainant’s receipt, but neither the submission, award or receipt purported to dispose of the pending suit. The complainant offered to discontinue the suit on payment of his taxable costs, but the respondent refused the offer, and moved to file an answer setting up the award and satisfaction thereof in bar of the suit. This motion the court refused, unless on the same condition as to costs. The complainant then took out the warrant for the jury; they assessed his damages; and, on the acceptance of their verdict, he took judgment for nominal damages and costs. BeZtf, that audita querela would not lie to prevent the enforcement of this judgment.</p>

<p>Contract on an agreement for carting stone for the defendant. In the superior court, the case was referred to an auditor, whose report the plaintiff introduced in evidence at the trial and rested his case. The defendant offered no evidence; Rockwell, J., ruled that the plaintiff was entitled to recover a sum found by the auditor to be due from the defendant on the contract, and directed a verdict for the plaintif which was returned; and the defendant alleged executions :?re pleadings, and tire facto found by the auditor, so far as they are material, are stated in the opinion.</p>

Contract on a promissory note for $159.41, dated October 7, 1861, made by the defendants as copartners under the firm of Lockwood & Connell, payable to the plaintiff in nine months, and bearing the following indorsement signed by the plaintiff: 16 December 14, 1864.

<p>tf an agent of a foreign insurance company makes an insurance in this Commonwealth without complying with the provisions of the Gen. Sts. c. 58, the insured cannot by reason of such noncompliance recover the amount of the premium which he paid for the policy.</p> <p>An agent of a life insurance company received the application of a person for insurance therein on his life in a certain sum, and a draft accepted by him for the amount of the premium on such a policy; negotiated the draft; obtained from the company, and delivered to the insured, the policy in the usual form of policies of life insurance, containing a condition that it should be void if the insured should be engaged in running a steam-engine; and then forwarded to the company the proceeds of the draft. But by the general instructions of the company to its agents he had no authority to receive the premium thus, nor until the issue of the policy, nor without giving the company’s receipt therefor, signed by its president; which receipt he received from the companj' with the policy, but never delivered to the insured. Before the agent forwarded to the company the proceeds of the draft, the insured, who sometimes was engaged in running a steam-engine, but did not disclose the fact in applying for the policy, objected to that condition in the policy; and the agent premised to make it “ all right.” Afterwards the agent procured some modification of the condition; hut the insured was not satisfied, and returned the policy to the agent, and demanded a return of his draft, which was refused. Held, that, after paying the draft at its maturity to the person to whom the agent negotiated it, the insured could not recover from the agent the amount of such payment.</p>

<p>In an action under the Gen. Sts. c. 44, § 22, against a town, for an injury resulting to a traveller from the collision of his carriage with a hitching post in a highway on which he was driving in the night, it appeared that the way was forty feet wide, smooth, wrought for travel with three carriage tracks, and so level that from the crest of the carriage-path to a fence on the side of the way there was a slope of less than three inches; that the post was one of three such posts, erected by the owner of the adjoining land upon the outer edge of a strip of the way, about six feet wide, between the carriage-path and the fence, which was used as a sidewalk but not bounded from the carriage-path by any gutter, trees, railing or curbstone: and that the plaintiff would have had no difficulty in passing the posts safely but for the darkness. Held, that there was no evidence on which it was competent for the jury to find that the way was defective.</p>

Tort for shooting the plaintiff. The defendant justified on the ground that he fired the shot in defence of himself, his house and household, against assaults made and threatened by the plaintiff and his associates.

<p>A suit for Specific performance of a contract for the conveyance of land situated in territory which was set off from Rhode Island to Massachusetts by the decree of the supreme court of the United States which took effect March 1,1862, settling the boundary between the two states, was then pending in the courts of Rhode Island between a plaintiff who resided in that territory when he began the suit, but afterwards removed to and continued to reside in Massachusetts, and a defendant who always resided in Massachusetts, but was served with process in Rhode Island and there submitted to the jurisdiction. Neither party removed the suit into this court, under the St. of 1862, c. 48, § 3, and the court in Rhode Island entered a final decree for the plaintiff. Held, that upon the entry of that decree, duly certified, in this court, the plaintiff was entitled, under that statute, to procesa for enforcing its performance.</p>

Bill in equity against Philip Larissa, Charles H. Alison and Quincy A. Hooper, to redeem a parcel of land from a mortgage given by the plaintiff to Russell A. Dennison, and by him assigned to Larissa after entry for breach of the condition of the mortgage and for the purpose of foreclosure.

<p>Bill in equity, filed July 6, 1868, by William Valentine, a eon of William and Martha A. Valentine, grandson of James Valentine, and great-grandson of William Valentine, setting forth that his said great-grandfather died in July 1839, leaving a will which was duly proved and allowed in the probate court. for Bristol, and a copy of which was annexed to the bill, the material parts thereof for the purposes of this case being as follows:</p> <p>After providing, in the first three articles, for the payment of his debts and certain legacies, the testator, in the fourth article, gave the residue of his estate to trustees, in trust to pay to his grandson, William Valentine, son of James Valentine, so much of the net yearly income thereof as they should deem proper for his good education and comfortable support, not exceeding in any one year one sixteenth of the net income for that year; to do the same in respect to said William’s sister, Julia Valentine; and to apply the trust fund further according to other provisions of the will, among which were the following:</p> <p>The third clause of the fourth article of the will contained the following provision concerning said William : “ In case my said grandson shall die leaving heirs of his body, my will and direction is, that one half of the said residue of my said estates, property and effects, and of the rents, dividends, interests and profits thereof remaining, shall go to and vest in such heirs, and their heirs and assigns forever, to be divided amongst them in the same manner as if the same had been devised to my said grandson in fee simple and he had died intestate seised and possessed thereof; and I do bequeath and devise the same accordingly.”</p> <p>The fifth clause of the same article made similar provision in like words concerning said Julia.</p> <p>The fifth article of the will was substantially as follows : 16 If my said grandchildren shall both die leaving no heirs of the bod) of either of them, my will and direction is, that the whole of said residue, with the rents, dividends, interests and profits thereof remaining, shall go to and vest in the children and descendants of my sister Abigail Webster, to them and their respective heirs and assigns forever; and I do bequeath and devise the same accordingly. Provided, however, and my wil' and direction is, that if either of my said grandchildren shall die leaving heirs of his or her body, any of whom shall be under the age of twenty-one years, this trust shall continue in force, and the share or proportion of this trust falling to such heirs shall be managed by said trustees as aforesaid until such heirs shall be twenty-one years old, or the last survivor of them shall die, whichever shall first happen, and no longer. And said trustees shall in the mean time from year to year pay to such heirs, or their guardians, respectively, so much of the net income of their said share or shares of the said trust fund as they shall think proper and necessary to his, her, or their good education and comfortable support.”</p> <p>The seventh article provided “ that separate accounts of all moneys received and paid out on account of said trust fund, and of all stocks, moneys at loan, and other property, effects and debts belonging thereto, be kept in books provided for that purpose, the custody whereof shall belong to the trustees for the time being; that separate accounts be kept with each of my said grandchildren and their descendants, if any they shall have, of all moneys or property paid or conveyed as aforesaid; and that the balance of each shall be transferred from year to year, and equitably adjusted if there be more than one of my descendants alive at the termination of this trust.”</p> <p>The eighth article provided: “ If my grandson and granddaughter aforesaid shall both die leaving no heirs of the body of either of them, so that the limitation and bequest of the residue of my said property and effects to the descendants of the said Abigail Webster shall take effect, my trustees shall keep and manage the said residue, and the profits, income and increase thereof remaining, so long as it shall be necessary to the execution of their trust and to make distribution according to my true intent and meaning, and no longer.”</p> <p>The bill further set forth that at the death of the testator his grandchildren William and Julia were both living: that said William died on May 20, 1857, leaving a widow, Martha A. Valentine, (since become by remarriage Martha A. Remington,) and five children, all minors, including the plaintiff; that one of these children, Charles E. Valentine, died before the filing of this bill, and while under full age; that the plaintiff became of full age on June 5,1868; that the three remaining children were still minors; and that said Julia was still living, had been twice married, the second time to James A. Fox, and had issue of both marriages, who were living, those of the first marriage being of full age.</p> <p>The prayer of the bill was “that it may be determined by the judgment of the court whether or not the plaintiff, on arriving at twenty-one years of age, was thereupon entitled to have set off and paid over to him his just proportion of said residuary trust fund, and further determine what the plaintiff’s interest in said fund is, and to what share or proportion of the same he is entitled, and whether or not, upon the decease of Charles E. Valentine, his interest in and share of said fund descended to the- surviving brothers and sister merely, or passed to them and their .mother in equal shares; and that the said trustees may be ordered and decreed to render an account of the fund, and to set off and pay over to the plaintiff such a proportion thereof as he is entitled to by law and under the will of his great-grandfather ; ” and for general relief. The trustees, with Mr. and Mrs. Remington and the surviving brothers and sister of the plaintiff, and Mr. and Mrs. Fox and all the children of Mrs. Fox, were made parties defendant.</p> <p>The answer of the trustees disclosed a sum of nearly a million and a half of dollars to the credit of the trust fund; and alleged “ that they are advised that it may not be required, by the true meaning of the will, that they should pay or set over to the plaintiff a proportion or share of said trust fund until the youngest of his father’s children shall have become of the full age of twenty-one years, or until some future time or event and that, if not so required by law now to pay or set over a pop tian thereof to the plaintiff, they, considering the inexperience of the plaintiff and the spirit of the directions of the testator in the will, might not so pay and set over to the plaintiff his share at present, except the net income thereof or so much of the net income thereof as they shall think proper and necessary to the comfortable support of the plaintiff.”</p> <p>The answer of Mrs. Remington alleged that she was “ now entitled to receive from said trustees, as one of the heirs and representatives of her son, Charles E. Valentine, deceased, one fiftieth part of the trust fund in the hands of the trustees; and this whether or not the plaintiff is now entitled to his proportionate share of said fund.”</p> <p>The answers of Mrs. Fox and her children alleged “ that by the true construction and meaning of the will the plaintiff is not entitled to have his proportion or share of said trust fund, or any proportion thereof, set or paid over to him until all the aforesaid minor children of his father, William Valentine, shall become of the full age of twenty-one years, or until all of said minor children who shall not have attained to said age of twenty-one years shall die, whichever may first happen ; and that upon the happening of either of the said events the residuary trust, created or provided for by said will, will then and thereupon terminate and cease, and one half part of the aforesaid residuary trust fund will then come and be payable to the defendant Julia V. Fox, and the proportions of the other half - thereof, belonging severally to the plaintiff and to the other descendants of said William Valentine, will then go and be payable to them respectively.”</p> <p>Issue was joined on the answers, and the case reserved by Colt, J., on the bill and answers, for the determination of the full court.</p>

Petition filed June 6, 1868, on the St. of 1868, c. 309, § 3, (which was enacted on the day previous,) for the appointment of commissioners to determine and award the amount to be paid to the petitioners, (whose turnpike, with its bridges, extended from Salem in the county of Essex to Chelsea in the county of Suffolk, crossing a portion of the county of Middlesex in its course,) and to the proprietors of Malden Bridge, (who took notice of the petition and joined in its…

Poor debtors’ oath. On December 29,1866, after the arrest of the defendant on an execution issued on a judgment recovered in a civil… Held: and an assignee appointed, and that the proceedings in bankruptcy were still pending. To this plea the creditor demurred. The superior court overruled the demurrer, and gave judgment for the debtor; and the creditor appealed to this court, before which the case was argued at the law term for the Commonwealth at Boston in January 1868.

Contract on a recognizance under the Gen. Sts. c. 124, § 10. The case was submitted to the judgment of the superior court, and, upon appeal, of this court, on agreed facts, upon which the only issue argued was as to the validity of the admission of Clohecy, the judgment debtor, to take the oath for the relief of poor debtors, by a trial justice whose only notice to the creditor of the time and place appointed for the debtor’s examination was in these words: “ Essex, ss.

<p>The discharge of a poor debtor under the Gen. Sts. c. 124, § 22, after examination and admission to take the poor debtors’ oath by a special justice of a police court, acting in the matter at the request of the justice who is engaged in the court, is valid, whether the special justice be considered as having acted as the official organ of the court or as a magistrate in the exercise of a ministerial authority.</p>

<p>A policy of insurance on a seagoing vessel against the usual marine risks insures against barratry of the master, in the absence of any stipulation to the contrary; even when the assured as owner of the vessel himself appoints the master and mariners.</p> <p>A policy “ causing A. B. to be insured, lost or not lost,” a certain sum on a seagoing vessel upon a voyage, without defining the risks assumed by the insurers otherwise than by a clause that they “ are not in any case to be held to pay for any loss or damage in consequence of restraint, seizure or detention by any legal or illegal power whatsoever, or for any damage, accident or loss which may happen or occur to any vessel while she may be under such restraint, seizure or detention,” insures A. B. on the vessel against the usual marine risks, and among them the barratry of the master.</p> <p>A usage of the marine underwriters of Boston to expressly except barratry of the master from the risks which they assume on any vessel, whenever the assured is her owner, cannot import such an exce tian by implication into a policy of marine insurance tinder* written at Gloucester.</p>

<p>There is no rule of law, which, in the absence of usage, obliges the seller of goods who delivers them to a railroad company to be first transported on their road and thence forwarded by them on a steamboat to the purchaser, to take out an internal bill of lading and send it to the purchaser at or about the time of despatching the goods.</p> <p>There is no rule of law which requires a railroad company to give bills of lading for goods delivered to them for transportation</p>

<p>In an action on a promissory note, proof that the defendant made it to the plaintiff upon the plaintiff’s promise that the defendant might collect the amount of it from a third person in payment for property which such person was to huy from the plaintiff, and Should not be liable on it if he could not make that collection; that he has been unable to make the collection; and that the third person has since become bankrupt; will not sustain a defence of want of consideration.</p>

Tort for iniuries sustained in a collision of the plaintiff’s carriage on a highway with a wagon of the defendant which was managed and controlled at the time by the defendant’s servant, through whose negligence it was alleged that the collision was caused.

Tort. The declaration alleged, in a single count, that the defendants on the night of June 2, 1867, broke in the door of the plaintiff’s boarding-house in Lawrence, dragged him from the house, beat him with clubs, and then imprisoned him in the lock-up in that town for twelve hours, and otherwise assaulted him. The defendants justified as police officers of Lawrence.

Appeal under the Gen. Sts. c. 147, § 12, from an order of the superior court for judgment for the plaintiff on an award made and returned into court and accepted and confirmed in pursuance of a submission under §§ 1,2, the agreement in which was signed with the names of the parties, followed by a certificate of the justice of the peace that “ then the above named John Raddin personally, and said Nancy Wright by her attorney, Minot Tirrell, Jr., appeared and acknowledged the…

<p>A party to a civil action, in order to be entitled to file interrogatories under the Gen. Sta. c. 129. § 50, to an alleged officer of the other party, is bound to prove to the satisfaction of the presiding judge that the other party is a corporation.</p> <p>In an action against the “Adams Express Company,” the declaration alleged that the defendants were “a company having a place of business” in this Commonwealth; and the answer denied each and every allegation of the plaintiff. Held, that, whether or not the declaration sufficiently alleged that the defendants were a corporation, the plaintiff was bound to prove it as a fact if they denied it at the trial.</p>

<p>Upon a deed of land to “A. B., treasurer” of a corporation named,11 and his successors in office,” and expressed to be in trust, the corporation cannot maintain a writ of entry for the land after A. B.’s death; whether the trust be regarded as subsisting, or the deed considered as conveying an estate to the use of the corporation which was executed by the statute of uses.</p>

<p>A demand of a mortgagee of personal property upon an attaching officer, under the Gen, Sts. c. 123, §§ 62, 63, is sufficient, both in form and substance, which states in writing, as an account of the debt for which the property is liable to him, that the mortgage was given to secure payment of a note for a certain sum, and that both note and mortgage were made in consideration of the loan of a certain Jess sum by him to the mortgagor, which remained unpaid, and to secure him against his liability as surety on a certain outstanding bond of the mortgagor in a penal sum larger than the balance.</p> <p>On the trial of an action by a mortgagee of personal property against an attaching officer for the conversion of it, the plaintiff may prove by paroi evidence the actual consideration of the mortgage note, in order to establish the truth of the account stated by him to the officer, under the Gen. Sts. c. 123, § 63, of the debt for which the property was liable to him.</p> <p>Personal property subject to a recorded mortgage and attached as property of the mortgagor, who was afterwards adjudged a bankrupt under the United States bankrupt act of 1867, c, 176, was thereupon surrendered by the officer to the assignee in bankruptcy. In an action by the mortgagee against the officer for conversion of the property, Eeldy that it was competent for the defendant to prove that the mortgage was void under the bankrupt act as a fraudulent preference of a creditor.</p>

<p>Contract on an account dated December 25,1866, for twenty-four weeks’ board of the defendant’s child. The answer among other defences set up the statute of frauds.</p> <p>At the trial in the superior court, before Wilkinson, J., the plaintiff introduced evidence which tended to prove that the defendant came to her house in January 1866 with Hannah Hurley, who was pregnant that he said in the plaintiff’s hearing that he was the father of the child, and asked the plaintiff to take care of Hurley during her confinement, and the plaintiff did so ; that Hurley paid her for doing so, and afterwards paid something towards the board of the child, which was born near the end of January; that in July there was a balance of sixty-seven dollars due for the child’s board, when the defendant came again to the plaintiff and promised to pay both for its past and future board at the rate of three dollars per week, and paid thirteen dollars at that time, and in August twenty-five dollars; and that the child was boarded by the plaintiff from the time of its birth to the date of the account in suit.</p> <p>The defendant requested the judge to instruct the jury “ that, if the defendant promised to pay for the past and future board of the child, by the terms of the promise and the plaintiff’s declaration it was an entire contract, and could not be separated ; that, the past part of said contract being void by the statute of frauds, it being a contract to pay the debt of another and not in writing, the whole contract was void; and that, even if only part of it was void, and if the defendant paid thirteen dollars and twenty-five dollars after it was made, and no appropriation was made of such payments, the law would appropriate them towards the valid part of the contract.”</p> <p>The judge declined this request, and instructed the jury “ that, if the defendant made such contract, he would be liable for the future board, but not for the past board, of the child, it being a contract to pay the debt of another and not in writing according to the requirements of the statute of frauds; and that, if nothing was said when the money was paid, the plaintiff would have the right to appropriate the same towards the payment of the past part of the contract.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Contract on an account for boarding the defendant’s wife and taking care of her in sickness. The answer alleged, among other defences, that the wife was supported in part by a benevolent society during the time covered by the account, and that her services to the plaintiff during that time were worth as much as the cost of her board.

Contract for breach of a promise of marriage. At the trial in the superior court, before Putnam, J., the defendant, in opening his case, admitted his promise to marry the plaintiff, “ and relied on matters which occurred at an interview between the parties on March 18, 1867, as a justification to himself for then separating from the plaintiff and subsequently marrying another person; ” and testified that at that interview he told the plaintiff that he had made arrangements…

Bill in equity filed March 28, 1868, by Charlotte Maria, daughter of Benjamin Moore who died September 20,1867, and Joseph F. Dodge, her husband, to restrain Almira Moore, the widow of the deceased, from proceeding to sell at public auction, as she had advertised to do on March 31,1868, all his estate, both real and personal, valued in the inventory at respectively $3900 and $615.25, which she claimed a right so to sell under the provisions of his will, all but the formal…

<p>Bill in equity filed October 19,1867, by a daughter of the first marriage of Robert Cm rev, deceased, and her husband, against the widow of the deceased, and the executor of his will, to restrain the former from prosecuting any claim for, and the latter from paying to her, a distributive share in the estate, the bulk of which the will left in trust for the benefit of the plaintiffs and of a son and daughter-in-law of the testator; praying for an injunction and general relief, on the ground that the widow, who was the second wife of the testator, to whom she was married on August 9,1858, was barred by an antenuptial contract, entered into by her and the testator on that day, wherein it was agreed that she should continue, after the marriage, “ to hold to her sole and separate use, free from the interference or control of her husband, all the real and personal estate of which she may be seised and possessed at the time of the marriage, or that may thereafter come to her by devise or inheritance, and in case of her death before her husband, her heirs then are to receive the whole of her estate then remaining; ” and wherein it was further agreed that, in event of her husband’s death before hers, she should “ then be entitled to, and receive, in lieu and stead of dower and all other rights in and to the estate of the said Robert,” certain things specified, and for which the testator, who died August 14, 1866, made provision for her in his will, before disposing of the residue of hi» estate for the benefit of his children as above recited.</p> <p>The bill alleged that the will was duly proved and allowed on October 2,1866 ; that the widow on October 6,1866, by a writing filed in the probate court, waived the provision therein made for her, and gave notice that she should claim dower, and a distributive share in the personal estate, and on October 10,1867, petitioned the probate court to direct the executor to pay toi her the share of the personal estate to which she would have been entitled if her husband had died intestate.</p> <p>A temporary injunction was granted. The widow answered, admitting the allegations of fact above recited, but denying the binding force of the antenuptial contract, for the reason, among others, that it was never recorded as required by the St. of 1845, c. 208, § 2. A hearing was had on the bill and ansv. cr, before the chief justice, who reserved the case for the determination of the full court, as follows : “ The defendant objects that the antenuptial agreement is void, because the same was not recorded. The plaintiffs contend that it is valid, though not recorded. The only question reserved is, as to the validity of the agreement on the alleged ground. If it is valid, the injunction is to be made perpetual; if void, the injunction is to be dissolved.”</p>

<p>Under the following legacy and devise: “ I give to my wife my personal property for her benefit and support and the support of my son, whilst she remains unmarried. I also give her the improvement of my real estate during the time she may remain my widow; ” Held, that the testator’s widow took the personal property in trust during her widowhood, the income of one half of it to be applied for her own benefit and support, and of the other half for the support of the son, and the remainder expectant on the determination of the trust estate vesting as intestate estate.</p>

<p>A. devise of the residue of the testator’s estate, including both land and chattels, to hia married daughter, habendum to her and her lieirs and assigns forever, to her sole and separate use; further providing that on her death the same shall go to her issue in equal portions, or, in event of her dying without issue, to such persons as she shall by will appoint, and in default of such appointment all which shall remain at the time of her decease shall be equally divided among her heirs-at-law; and requesting her husband to assent to any will which she may make; gives her the absolute property in it during her dfe, so that she can convey a good title in fee simple to any part of it.</p>

Contract on this clause in Nancy Horton’s will: “ I give and bequeath all my personal property of every name and nature, after paying the foregoing legacies, to the heirs of my late husband and to my heirs equally.” At the trial in the superior court, before Morton, J., it appeared that Nancy Horton’s heirs, at her decease, were: Sarah Horton, a sister; six children of a deceased brother, Nathaniel Bassettof whom the plaintiff was one; the only child of a deceased brother,…

<p>If a corporation, authorized to take land for a public purpose by a statute which providea that, within a certain time after taking any land, it shall file in the registry of deeds a description thereof sufficiently accurate to identify the same, omits in such description to reserve any rights to the landowner, it cannot, on a trial to assess his damages, prove its paroi assent to such a reservation, or that the use which it intends to make of the land does not require exclusive possession of it.</p> <p>On a trial under the St. of 1864, c. 268, § 10, to assess damages for land taken by the city of Salem under § 1 for the purpose of supplying the city with pure water, it appearing that the description of the land filed in the registry of deeds by the mayor under § 3 omitted to show any reservation of rights to the landowner, Held, that it was incompetent for the city to prove that it put up fences inclosing the land for his benefit, and so informed him at the time, and afterwards told him that they would be kept up or removed at his pleasure; or that they offered to him, by paroi, to put in gaps and ways across the line of their aqueduct through the land, and he declined the offer; or that the purposes for which they intended to use the land were not inconsistent with the reservation of such rights to him.</p> <p>On a trial to assess damages for land taken for a public use, if evidence is admitted of what the petitioner originally paid for the land, he may be permitted to prove, in reply and explanation, the circumstances under which he paid it.</p> <p>On a trial of the issue of the value of an ice privilege on the margin of a certain pond, evidence of the value of ice privileges on ponds seven or eight miles distant was excluded. Held, that a bill of exceptions to the exclusion of this evidence could not be sustained which did not affirmatively show that the evidence would have aided the jury in determining the value of the privilege in question.</p>

Action commenced April 16,1868, on the Gen. Sts. c. 137, against an undertenant of James Keegan, for possession of the tenement described in the following notice, signed by the plaintiff, and dated and served upon the defendant September 9. 1867, with which the defendant refused to comply: “ You are hereby notified that I have terminated the tenancy of James Keegan in the tenement numbered 81 on Common Street in Lawrence, which you occupy and bold under said Keegan, and that…

Bill in equity alleging that the plaintiff, being desirous to sell two lots of land which he owned in Marblehead, entered into negotiations with the defendant Brown; that Brown pretended to be a broker, undertook to act as the plaintiff’s agent in the matter, and soon afterwards represented to the plaintiff that he had found a purchaser in the person of a gentleman absent in Canada, who would pay the price in certain shares in mining companies; that Brown further represented…

<p>A. and B. entered into a written contract for A. to deliver malt to B. at a stipulated price per bushel; and B. to pay therefor “ by notes of hand ” and give a mortgage to secure his full compliance with all the specifications of the contract on his part; and as part of the same transaction B. gave A. a mortgage expressed to be void if he should pay A. “ the sums of money in full compliance with the terms of said contract,” “ said contract being in relation to the delivery of malt, and the terms and method of payment for the same, to wit, by notes of hand,” but to remain in full force if default should be made “ in the payment of the money above mentioned, or any of said notes.” Held, that the mortgage was security not only for the giving of the notes, but also for their payment on maturity.</p>

<p><5., owning a lot of land abutting on a street and separated from land of N. by a way extending from the street to a third lot, also owned by G., in the rear of and adjoining the two others, and on which was situated his house, conveyed the first lot to L. by a deed bounding it on the way, which it described as of a certain width and as “ passing southwesterly of the granted premises, and northeasterly of land of IT., from the street to my house.” Held, that this description of the way made it a sufficient boundary for the granted premises for any distance short of the house; that their corner upon the way nearest tc:the house could be determined only by the intersection with the way of some other line bounding them; and that, if this intersecting line was described so as to rendei it* course certain, on the face of the deed, only to a point at some distance from the way, the presumption on the face of the deed was, that the comer was where this line, extended on the same course, would meet the way.</p>

<p>The equity jurisdiction of this court does not warrant the issue of a writ of supplicant on the petition of a wife against her husband, who is guilty of such cruel and abusive treatment of her as would sustain a libel for a divorce from bed and board, and who refuses to support her and their minor child; even although the petitioner has religious and conscientious scruples against applying for a divorce and so obtaining alimony.</p>

<p>Contract, commenced by trustee process in the superior court, by a wife against her husband, to recover alimony and costs decreed to her by this court after a divorce from bed and board, granted, on her petition, for his cruelty.</p> <p>At the trial, before Morton, J., without a jury, the husband contended that the coverture of the plaintiff deprived her of any right to maintain the action; and that, even if this were not so, she had no remedy in this form. The judge ruled to the contrary, and gave judgment for the plaintiff. The husband alleged exceptions.</p>

<p>A merchant who sends by his clerk to the post-office, to be mailed, a sealed letter contain* ing a bank check drawn by himself payable to A. B. or order, is not guilty of negligence which will render him liable on the check in the hands of a holder in good faith for value* to whom the clerk, after abstracting it from the letter, passes it altered by forging the words “or bearer” after “A. B.” and before “or order,” and obliterating the latter words.</p>

<p>A certificate of stock, expressed on its face to "be “ transferable only on the books of the company by the holder thereof in person, or by a conveyance in writing, recorded on said books, and surrender of this certificate,” and transferred in blank upon its back, is not a negotiable instrument.</p> <p>One holding stock as trustee has prima facie no right to pledge it to secure his own debt growing out of a transaction independent of the trust.</p> <p>If a certificate of stock expressed in the name of “ A. B., trustee,” is by him pledged to secure his own debt, the pledgee is by the terms of the certificate put on inquiry as to the character and limitations of the trust, and, if he accepts the pledge without inquiry, does so at his peril.</p> <p>If a certificate of stock in a corporation, expressed in the name of 61 A. B., trustee,” is by him fraudulently pledged for his own debt, and accepted without inquiry; and the pledgee, after receiving notice of the fraud and a demand of the parties beneficially interested under the trust that the stock sh*all be held subject to their direction, voluntarily pays an assessment due on the stock, to one of them, as treasurer of the corporation, in the presence of the other; such payment does not estop them from maintaining their claim to the stock.</p>

Bill in equity to reach and apply, in payment of a debt, rights of a debtor which could not be come at to be attached or taken on execution in a suit at law against him ; heard by Wells, J., and reserved for the determination of the full court on an agreed statement of the pleadings and facts, as follows: “ The original bill, filed February 23, 1867, set forth that the defendant Abbot was indebted to the plaintiff on certain promissory notes, amounting to $1275, which was…

<p>A corporation, having reserved profits to an amount exceeding twenty per cent, of its capital, and having authority to create additional stock, declared a dividend of twenty per cent, on its existing shares, payable in six years to their then holders, either in money or stock at the option of the corporation, interest thereon to be paid meanwhile on a certain day each year to the holders on that day. After declaring this dividend, it created new stock of the same par value; but the market value of the old shares, to which the privilege of the dividend was thus attached, was twenty per cent, more than that of the hew shares, and the difference was owing wholly to this privilege. Reid, that, in computing the true value of the corporate franchise, for the purposes of taxation, under the St. of 1865, c. 283, § 4, the tax commissioner was not in error in estimating the fair cash valuation of all the shares of the capital stock by adding the actual market value of the old shares to that of the new shares, without making any deduction on account of the dividend.</p>

<p>Tort against Ammi C. Lombard and John S. Parsons for the conversion of ten bales of cotton. At the trial in the superior court, before Morton, J., a verdict was returned against Parsons, and in favor of Lombard, and the plaintiff alleged exceptions, which were allowed, as follows:</p> <p>16 It appeared in evidence that on July 19, 1866, George H. Frothingham sent the cotton to the warehouse of Parsons, who was then a warehouseman at No. 18 Lewis’s Wharf, in Boston, and received a warehouse receipt for it from Parsons’s clerk, it being intended that the cotton should remain there for a con-siderable time on storage. Through the negligence of the clerk no memorandum of the transaction was ever entered on Parsons’s books. On July 21, 1866, Frothingham indorsed the warehouse receipt to the plaintiff, who sent his clerk with it to Parsons, to inquire if he had the cotton therein mentioned on storage; and Parsons replied that he had, and that it would be delivered to nobody unless that receipt was surrendered at the time.</p> <p>“ In October 1866, Parsons went out of business as a ware houseman, and Lombard hired the warehouse of the Lewis’s Wharf Company. At the time when Lombard took possession, the cotton was in the warehouse. Parsons’s clerk went over the warehouse with Lombard’s clerk, and gave him a memorandum in writing of the names of the owners of the different parcels of merchandise there contained, in which this cotton was by mistake described as the property of Hobbs & Travis, a firm of cotton brokers at Boston; and the cotton was, upon this information, entered upon Lombard’s books as the property of Hobbs & Travis. Near the end of June 1867, the cotton having remained in the warehouse till that time, Lombard, of his own motion, gave notice to Hobbs & Travis to come and take it away. They replied that they had forgotten about it, but said they would attend to it; and on July 2,1867, they came and took the cotton away. Lombard delivered the cotton to them, and took their receipt for it at the time, and Parsons, having been called as a weigher by Hobbs & Travis, weighed out the cotton as it was delivered.</p> <p>“ It was in evidence that in depositing goods there is no usage in Boston of taking warehouse receipts, and that in more than half of the cases they are not taken. Lombard had been in the business of a warehouse keeper largely in Boston since 1850. Lombard testified that he never doubted that Hobbs & Travis were the owners of the cotton, or had his suspicions excited upon the subject until the plaintiff came to him in September 1867 ; and it was not disputed that he acted in good faith.”</p> <p>« Upon this evidence, the plaintiff contended that the actual delivery by the warehouseman Lombard to Hobbs & Travis although by mistake, and under the supposition that they were the true owners, would render him liable to the plaintiff for a conversion. But the judge ruled otherwise, and directed a verdict in favor of Lombard, on the ground that it was incumbent upon the plaintiff to show negligence in order to charge him as a warehouseman for a conversion; and that the facts above stated were no evidence of any negligence to go the jury.”</p>

<p>A petition for the enforcement of a lien on a vessel for labor performed in its construction is not barred by a general decree dismissing a former petition to enforce the same lien, the answer to which alleged technical defences against its maintenance, and which was submitted to the judgment of the court on agreed facts conceding the substance of those defences as well as relating to the general merits of the cause; but if the judgment for costs against the petitioner in the former proceeding remains unsatisfied, the court, under the Gen. Sts. c. 156, § 12, may stay proceedings on the second petition until such costs are paid.</p> <p>By the terms of the St. of 1855, c. 231, § 1, or the Gen. Sts. c. 151, § 12, the lien on a vessel, given by those statutes respectively, continues, without limitation of time, until the debt is satisfied.</p>

Contract to recover the amount of a check on the National Hide & Leather Bank, signed by the defendant and dated February 13, 1867, which the bank refused to pay on demand, and the defendant also refused to pay, although requested after due notice given to him of the refusal of the bank.

<p>The order of a customer to a broker to buy stock “ on a sixty days’ buyer’s option” does not authorize the broker to buy the stock himself and hold it on his customer’s account for sixty days.</p> <p>An allegation in a declaration, that the defendant employed the plaintiff to buy for him certain stock to he delivered to him in sixty days from the time of the purchase does not import an order of the defendant to the plaintiff to buy the stock “ on a sixty days’ buyer’s option.”</p>

Contract by merchants in New York on an account for goods sold to the defendants, a corporation established in Boston ; submitted to the determination of the superior court, and, on appeal, of this court, upon agreed facts, in substance as follows: On the afternoon of February 28, 1867, the defendants inclosed in a letter and mailed to the plaintiffs, to pay for the goods, a draft by Mellen, Ward & Co., bankers in Boston, on Smith, Randall & Co., bankers in New York, for the…

<p>The owner of an overdue and unpaid promissory note united with other creditors of the maker in a written agreement not to sue him on the debts owing to them, and extending the time of payment thereof, two years for one third, three years for another third, and four years for the balance of each debt, in consideration whereof he promised to pay to them respectively “within the time above mentioned” the full amounts which he owed to them, with interest for the period of extension. At the end of two years he failed to pay the first instalment of one third upon the note; after which its said owner sold it to a third person. Held, that the agreement was no bar to an action by the buyer, upon the note, for the whole amount due thereon, although begun before the time limited in the agreement for the payment of the final instalment.</p>

<p>In an action of contract upon the defendant's agreement to sell the plaintiff’s goods on commission, the plaintiff cannot recover for fraudulent representations of the defendant made as an inducement to the agreement, or for the defendant’s conversion of the goods under claim of a lien for advances.</p> <p>In an action upon an agreement to sell goods on commission, which the defendant contended was modified by a subsequent promise of the plaintiff to spend a certain sum in advertising the goods, the plaintiff undertook to testify in detail what was said by the parties in a conversation after the date of the original agreement. Held, that it was competent for the defendant to testify that, as a part of that conversation, the plaintiff said that he would spend that sum in advertising.</p>

<p>Contract to charge Levi C. Clark and Thomas J. Dunbar, as indorsers, under the style of L. C. Clark & Co., of four promissory notes, dated January 1, 1862, made by Philander A. Jones, and owned by the plaintiff. Writ dated July 22,1867. Clark was defaulted. Dunbar’s answer denied that he was a partner of Clark, or a member of any firm under the style of L. C. Clark & Co.</p> <p>At the trial in the superior court, before Reed, J., there was evidence tending to show that, on September 3, 1857, Dunbar, with John Muzzy, (since deceased,) as copartners under the firm of T. J. Dunbar & Co., signed, with Clark, the following contract :</p> <p>“ T J. Dunbar & Co. agree to furnish stock and fixtures at store No 554 Washington Street, including bowling alleys connected therewith, valued at $4000. Clark agrees to furnish his services to manage the business at the store, and to give his time and undivided attention thereto. The profits arising from the business to be shared equally by Clark and T. J. Dunbar & Co., Clark agreeing to pay legal interest on one half the above mentioned amount of stock, viz: $2000. It is further agreed that Clark shall draw fifteen dollars per week, to be charged to his private account, to be deducted from his share of the profits as above mentioned. And. Clark agrees further to pay rent for the above store and bowling alleys at the rate of $1000 per year, payable monthly.”</p> <p>Dunbar testified, without objection, to “ various conversations and understandings before the execution of said paper, and at the time of the making thereof, one of which was, that Clark was to receive a share of profits instead of a salary.” The evidence tended further to show “ that the contract was never varied after its execution, except as to the style of the firm.” Clark testified, as a witness for the plaintiff, that it was agreed that the style should be L. C. Clark & Co.; but Dunbar denied any such agreement. There was also evidence tending to show that “ L. C. Clark 5c Co.” was painted on the door of the shop, and billheads and cards were used there, and issued from there, inscribed in like manner; and that Dunbar visited the shop daily. But Dunbar denied ever knowing of any such inscriptions.</p> <p>“ Dunbar offered in evidence the insolvency papers of Clark, to show that he went into insolvency individually, and not as a member of any firm ; that claims similar to those in controversy were proved against his estate; that he inserted in his list of assets no property in said firm ; and that he inserted in his list of creditors persons who held notes similar to those in question; in which papers, so offered, there was no reference to any partnership ; but the judge excluded the evidence.”</p> <p>The judge ruled that the contract signed on September 3, 1857, constituted the parties thereto partners, and controlled their prior conversations and understandings. A verdict was returned for the plaintiff; and Dunbar alleged exceptions.</p>

Contract on the defendant’s warranty of the quality of cider sold by him to the plaintiffs.

<p>Contract to recover money paid by the plaintiff to the defendants, Galloupe and Sereno D. Nickerson, “ for one block or sixteenth part of the Cleaveland Mine, so called, situated in the township of Cleaveland, Canada East,” alleging that, “ though the plaintiff has often requested the defendants to make conveyance of said sixteenth part of said mine to him, the defendants have neglected to do so; ” with a general count for money received by the defendants to the plaintiff’s use. Writ dated June 14, 1867. The answer, besides a general denial of all the allegations of the declaration, alleged that, “ if the plaintiff ever paid the defendants said money for said block or sixteenth part of said mine, the defendants never agreed or undertook to convey the same to the plaintiff, nor were ever bound to do so; but, on the contrary, it was agreed, by and between the plaintiff and defendants, and other parties interested in or owning the mine, that a corporation or joint stock company should be formed for owning and managing the mine, and that the defendants should convey to such corporation or company the title and interest held by them in the mine, and should receive stock in said corporation therefor and that the plaintiff should receive stock in such company or corporation, representing one sixteenth part of the mine; ” and “ the defendants have been always and still are ready to form or enter into such corporation or company, but the plaintiff has taken no measures for forming th ’ same.”</p> <p>At the trial, in the superior court, before Vose, J., these facts appeared: “ On April 4,1864, Henry C. Lloyd, of Melbourne, in Canada, having previously acquired control of the title to the lands comprising the Cleaveland Mine, described in the declaration, conveyed to the defendants, and John Simmons, all of Boston, three undivided fourths of his interest in said lands, each having one fourth ; and soon afterwards, for the purpose of forming a company to own and manage the mine, got up a subscription list in the form usual in such enterprises. The property was to cost the persons above named $9000 in gold. It was agreed by them that the property should be divided by the subscribers into sixteenths, at $2000 each, in gold; and, on this basis, Lloyd and Simmons procured subscriptions for thirty sixty-fourths of the property, (for which $15,000 in gold was received by them as trustees, who gave receipts therefor signed by the defendants, and paid $9000 for the land, and divided the remaining $6000 among the four persons named,) leaving Lloyd, Galloupe, Nickerson and Simmons equally interested in the remaining thirty-four sixty-fourths. Neither the plaintiff nor the defendants were subscribers. The subscriptions were made and the money was paid between April 4 and May 5,1864. On the latter day, the defendants negotiated with the plaintiff, who was a mining engineer and’ dealer in mining properties, for the sale of part of their remaining interest in the property, and received from him $2550 in currency, reckoned as equivalent to $150C in gold, for which they signed and gave to him this receipt ‘ Boston, May 5, 1864. Received of William L. Thompson twenty-five hundred and fifty dollars in full for one block or sixteenth part of the Cleaveland Mine, so called, situated in the township of Cleaveland, Canada East.’ The plaintiff, at the time of his payment, knew of the subscriptions, but there was no evidence that he knew the amount subscribed or the names of the subscribers.”</p> <p>“Conflicting testimony was offered as to the meaning of the term ‘block’ in reference to mining properties; Nickerson, who was familiar with dealing in such properties, and admitted to testify as an expert in relation thereto, testifying that it signified a proportion of stock in a corporation based upon such property; and the plaintiff testifying that it signified an interest in the specific property itself.</p> <p>“ Evidence was introduced tending to show that the plaintiff knew of the intention to organize a company at the time he made the purchase; but he denied knowledge of any such purpose at that time. It was admitted that there was an understanding between Nickerson and the plaintiff, at the request of the defendants, that Lloyd should know nothing of the sale to the plaintiff, and that the defendants and Lloyd were to take the deed or deeds as trustees; and the defendants contended that this was evidence tending to show that the plaintiff knew that his name was not to be inserted in the deeds. The plaintiff testified that he supposed the title was to be taken for the subscribers or purchasers.</p> <p>“ On May 6, the defendants went to Canada to buy the property, and on May 9 two deeds of the lands composing the mine were given by the owners to Lloyd, Galloupe and Nickerson, as trustees for themselves and Simmons and others mentioned, being subscribers. The names of the plaintiff and two of the subscribers were not put in the deeds. Nickerson testified, that, after the registrar had written a number of names into the deed, he suggested that they might have trouble in conveying the property to the company, as by their law all the cestuis que trust would have to sign the deeds; and that it was for this reason that no more names were given.</p> <p>“ On July 20, a proper form having been procured by Nicker-son from a parliamentary agent in Canada, a notice, declaring an intention to organize a corporation according to the laws of Canada, under the name of the Cleaveland Mining Company, was signed by Nickerson, the plaintiff, and two others of the subscribers, setting forth that the amount of the capital stock was to be $500,000, divided into a hundred thousand shares, all of which were subscribed for, and $32,000 paid in and invested in real estate. The plaintiff testified that upon the organization being perfected he expected to receive certificates of one sixteenth of the stock. The notice was never published.</p> <p>“ It was shown that the Cleaveland Mine adjoined the St. Francis Mine, which was being developed at the time of the purchase of the Cleaveland property, and was worked until within a year before this action was commenced. The plaintiff knew, at the time of his purchase, that the Cleaveland Mine was so situated; and that its value was based, to a great extent, upon the success of the St. Francis. After the notice referred to was signed, further action towards the organization of a corporation was delayed to attend the results of the work upon the St. Francis Mine, the parties interested in the Cleaveland Mine (with three or four exceptions, including the plaintiff) being stockholders in the other. The latter proved a failure. Nicker-son testified that, a few weeks after the sale to the plaintiff, he first spoke to the plaintiff of a delay in organizing the Cleave-land Mine, and he assented to it, or made no objection.</p> <p>“ In the fall of 1865, the plaintiff called on Nickerson and demanded a title to the one sixteenth he had purchased, and was told that he had the same and all the title that any one else had; and Nickerson declined to give him anything different. The plaintiff testified that, for a year after the payment of the money by him, matters stood properly, so far as any delay in organizing the company was concerned. At this period, mining properties had taken a decided downward turn. There was a conversation in April 1866, between Nickerson and the plaintiff, about getting up a company, in which Nickerson told the plaintiff to go forward and organize it, and the plaintiff replied that he "had no reason to. It was admitted that, neither at the. time of the plaintiff’s purchase, nor ever afterwards, did either party agree to procure the organization of a company.</p> <p>“ On February 10, 1866, Nickerson, in reply to a request of the plaintiff for a deed, wrote a letter to him, saying: ‘ My impression is that the names of all the parties interested are mentioned in the conveyances. We are ready at any time to execute any papers which the parties may agree upon, as necessary to more fully vest in them the title to the lands. I dc not think anything more is necessary.’ Soon after this, and without further communication between the parties, the plaintiff went to Colorado. In April, in consequence of the plaintiff’s call, Nickerson had a correspondence with Lloyd con cerning the organization of a company, but no steps were taken to accomplish it. In May 1866, the defendants went to Europe. Nickerson returned January 24, 1867. On February 27 following, the plaintiff’s attorney wrote to Nickerson, alluding to the defendants’ receipt of May 5, 1864, and saying: ‘ Mr. Thompson desires me to ask you to give him a deed of his share of this Cleaveland Mine without further delay, or return his money with interest. Please inform me immediately how soon this matter can be adjusted, and whether you will make him the necessary papers to show a title to this property so far as his share is concerned or not;’ to which Nickerson replied on the same day, asking for a copy of the receipt, and promising thereupon to decide immediately what the defendants ought to do in the premises, and to act immediately on the decision, in case he should find anything to be done, but adding that he considered the whole subject of no consequence. On March 2, in reply to another letter from the plaintiff’s attorney, Nickerson wrote that he had written to the registrar at Melbourne in Canada for a copy of the deeds conveying the lands comprising the Cleáveland Mine, and that, as soon as he should receive it, he would prepare a deed of one sixteenth part of said lands in the name of the plaintiff. On April 18, the plaintiff’s attorney agairwrote to Nickerson, asking attention to the plaintiff’s matters without further delay. Nickerson replied, on the same day, that he had no objection to furnishing the plaintiff with a deed of his interest in the Cleaveland Mine as soon as it could be done; but that the record copy of the deeds at the registrar’s office in Canada was the only evidence of title in existence; that the registrar was dead, and no copies could be issued from his office until his affairs were further settled; that he had taken some measures to have a deed prepared by an attorney in Canada directly from the record; that it would be needful for Galloupe to sign the deed, and he was in Europe, and it would be impossible to obtain his signature earlier than by awaiting his return in June; and that he (Nickerson) would try to have the deed ready for execution immediately on Galloupe’s return, and could see nothing more which it was possible for him to do in the premises. To this letter Nickerson received no reply. A deed was prepared by an attorney in Canada, and sent to and received by Nickerson about a week before June 14, on which day the plaintiff brought this action, but was not signed on account of the absence of Galloupe, who returned from Europe June 18, nor was either the plaintiff or his attorney informed of the making of it or of its receipt by Nickerson.”</p> <p>At the close of the evidence, the defendants asked the judge to rule: 1. “ That the first count in the plaintiff’s declaration was in effect a count to recover damages for the nonperformance of a contract by the defendants to convey to the plaintiff an undivided sixteenth part of the Cleaveland Mine; and that, if the jury should find that the agreement between the plaintiff and the defendants was for the sale and purchase of an undivided interest in real estate, and that the defendants, on demand made by the plaintiff, unreasonably neglected or refused to convey such interest, or to procure the same to be made, the measure of damages was the market value of the said undivided interest at the time of such demand and refusal, and not the amount of consideration money paid for the purchase.” The judge declined so to rule; but ruled “ that the first count in the declaration was simply a count for money paid, and that the evidence in the case would not entitle the plaintiff to recover against the defendants under that count; that, if the plaintiff recovered at all, it would be under his second count for money had and received, and upon the ground that the consideration for which he had paid his money to the defendants had failed, and, if so, that he would be entitled to recover back the money so paid.”</p> <p>The defendants also requested rulings as follows: 2. “ If the conveyance of the real estate was made to trustees with the Knowledge and assent of the plaintiff, and with his knowledge that his name was not to be inserted in the trust deed as one of the cestuis que trust, the plaintiff would not be entitled to demand of the defendants an absolute conveyance of one undivided sixteenth part of the real estate, but only such a conveyance or declaration on the part of the defendants as would give to the plaintiff a title as cestui que trust under said trust deed; and if the defendants did not unreasonably delay or neglect to execute such conveyance or declaration of trust before the bringing of this suit, the plaintiff cannot recover; ” and 3. “ If the defendants, at the time the receipt was given, had a sixteenth interest in the Cleaveland Mine, or afterwards acquired such interest, the receipt constitutes such a declaration of trust as to make the defendants the trustees of the plaintiff.”</p> <p>“ But the judge refused to rule according to these prayers, and instructed the jury substantially as follows:</p> <p>1. “ That, if the money was paid to the defendants under a mutual agreement, between them and the plaintiff, that it was to be in payment for stock in a company to be organized, and no duty rested upon the defendants to get up the company, the plaintiff must look to his stock and wait for it, and could not recover his money in this action; but if it was a part of such mutual agreement that the defendants were to go forward and procure the organization of a company in which the plaintiff was to have stock for the money so paid, and deliver the stock to him, and they neglected or failed to do so, without his assent, and failed and refused to furnish his stock, the plaintiff could recover the money he had paid, with interest, after a reasonable time for furnishing the stock had elapsed.</p> <p>2 “ That, if the money was paid for one sixteenth of the real estate termed in the receipt the Cleaveland Mine, and not for stock, the plaintiff was entitled to a conveyance of such interest in that real estate in some form, vesting the title thereto in him and giving him the control thereof; and if the defendants had unreasonably neglected to make or tender such a conveyance to the plaintiff upon demand by him, be could recover the money paid, with interest, after a reasonable time for making the conveyance had elapsed.”</p> <p>The jury found for the plaintiff; and the defendants alleged exceptions.</p>

Contract on forty-eight overdue and unpaid bonds of the defendants, a corporation under the law of Massachusetts, one half of which bonds bore numbers less than 200, and the other half numbers above 300, each bond being dated January 1,1850, acknowledging the debt of the corporation in the sum of four hundred and eighty dollars, money of the United States, or one hundred pounds sterling, money of Great Britain, and promising to pay the same in dollars or pounds sterling, to…

Action on the Gen. Sts. c. 137, for possession of a house in Boston.

<p>Contract for the rent reserved in a written lease of a tenement demised by the plaintiff to the defendant. The defendant alleged that he had been induced to execute the lease by fraudulent representations as to its contents, made by the plaintiff’s agent at the time of its execution.</p> <p>At the trial in the superior court, before Reed, J., the execution and delivery of the deed by the defendant were proved. There was evidence that the defendant could not read, and conflicting evidence as to the fraudulent representations. The defendant had never taken possession of the demised premises.</p> <p>The judge instructed the jury, among other matters, “that the burden was upon the plaintiff to establish the fact that the lease in question was executed and delivered by the defendant under such circumstances as to make it a valid contract, and these circumstances were explained, that when the execution of the lease was proved or admitted, as in this case, if there were no other evidence, that would be sufficient to entitle the plaintiff to recover. He further instructed the jury as to whai misrepresentations at the time of procuring a signature would render a lease invalid, and that, as there was evidence in this case relied on and tending to show such misrepresentations, it must all be considered by them. If they believed such misrepresentations were made, or if they, on the whole testimony, could not say whether the lease had been executed and delivered - under such circumstances as to make-it a valid contract, as had been theretofore explained, the verdict should be for the defendant.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>A discharge in bankruptcy is a bar to the further prosecution of a suit against the bankrupt, commenced by attachment more than four months before the commencement of the bankruptcy proceedings, if the attachment was dissolved by giving bond under the Gen. Sts. c. 123, § 104; notwithstanding the provisions in the United States bankrupt act, U. S. St. of 1867, c. 176, §§ 14, 33, preserving the lien of an attachment made four months or more before the commencement of bankruptcy proceedings, and continuing the liability of sureties after the discharge in bankruptcy of their principal.</p>

Contract by the assignees in insolvency of Henry J. Holbrook, an insolvent debtor, to recover a sum of money due from the defendants to Holbrook. It was admitted that the defendants were liable for the amount claimed, unless the following agreed facts furnished a defence.

<p>The liability of a railroad company as common carriers for goods delivered to them attaches only when the duty of immediate transportation arises. So long as the shipment is delayed for further orders as to the destination of the goods or for the convenience o* the owners, the liability of the company is that of warehousemen.</p> <p>In an action against a railroad company for negligently storing the plaintiffs’ flour and grain, there was evidence that the flour was burned in sheds and the grain in an elevator, both on the defendants’ premises; that the sheds were of wood, and not slated; and that the shed where the fire first caught was from three to six feet from a railroad track along which a wood-burning engine, used about the premises as a shifting engine, had passed from twenty-five to thirty minutes before the fire was discovered; that the elevator was on a wharf two hundred or two hundred and fifty feet from the sheds, the intervening; space being mostly covered by water; and that the fire took place in July, and the weather had been and was dry. Held, that there was evidence for the jury that the flour in the sheds was burned by the defendants’ negligence, but no evidence that the grain in the elevator was burned by such negligence.</p>

<p>Where an equitable and effectual decree can be made against the defendant to a bill in equity, the failure to join as defendants persons who appear from the bill to reside out of the jurisdiction, cannot be taken advantage of by plea, but only, if at all, by demurrer.</p> <p>The defendant induced A., who was his partner, to sell the firm property, at an inadequate price, to himself and B., C. and D. Payment was made in the notes of B., C. and D. A.’s administrator brought a bill in equity against the defendant to settle the affairs of the old firm. The bill alleged that the sale had been induced by the defendant’s frau&, and sought to set it aside so far as the price had been fixed by agreement, and to charge the defendant with the fair value of the property. The bill did not allege any complicity in the fraud, or knowledge thereof, on the part of B., C. and D., and did not pray any relief against them. Held, that B., C. and D. were not necessary parties.</p>

Bill in equity for the specific performance of a contract for the purchase of a lot of land in Boston, made by the defendant with the plaintiff. The plaintiff was the widow of Enoch Hale, who had died seised of the land. The plaintiff had tendered a deed of the land to the defendant, and the only question was whether she had power under the will of her husband to convey the land in fee. The provisions of the will are sufficiently set forth in the opinion.

<p>Bill in equity to enforce the specific performance of a written agreement, by which the plaintiff agreed to mortgage a parcel of land to the defendant, by a good and sufficient deed conditioned to secure the payment of $1500 in three years, and the defendant agreed, on delivery of such deed, to pay the plaintiff $1500.</p> <p>The plaintiff alleged in her bill that she was the widow of Thomas N. Paine, who died seised of the land in question, and by his will gave all his “ real and personal estate ” to his wife, “ for her support and benefit during her natural life; ” and after the decease of his said wife, “ if anything of said estate should remain,” he gave certain legacies, and “ after the said legacies shall have been fully paid, and anything shall be left,” he gave the remainder to his children. The plaintiff further alleged that the income of the real and personal estate was about $400; that “ said sum of $400 being wholly insufficient for her support, and she being desirous to borrow the sum of $1500 for her benefit and support, and to secure the payment of said $1500 by giving a mortgage on the parcel of land above mentioned, and the defendant, Franklin O. Barnes, being desirous to loan the plaintiff said sum upon said security, the plaintiff and said Barnes entered into ” the above mentioned agreement that the plaintiff was always ready to perform her part of the agreement, but that Barnes refused to perform his part, alleging that the plaintiff could not make a good title to the land. The defendant demurred.</p>

<p>Contract upon two policies of insurance, one upon the ship Young Mechanic, and the other upon her freight, on a voyage from Boston to Hong Kong. Upon the margin of the policy on the ship was printed, and upon the margin of that on the freight was written, these words : “ Warranted by the assured that the vessel be commanded by a captain holding a certificate from the American Shipmasters’ Association.”</p> <p>At the- trial in this court, before Hotvr, J., William Grant, late captain of the Young Mechanic, which sailed from Boston March 5, 1866, and was wholly lost at sea April 10,1866, testified that he procured from the American Shipmasters’ Association in New York, in December 1861, a certificate, which he produced, and which was in substance as follows: “ American Shipmasters’ Association. Number 660. New York, Decernber 11th, 1861. This certifies that William Grant has been registered by this association as an approved shipmaster. This certificate is granted and received with the understanding that it may be revoked at any time under the rules of this association, and at its option, either by notice to the holder or by advertisement in the public papers. I. H. Upton, Sec’y.” This certificate was indorsed: “ The bolder of this certificate is required to present it at this office for indorsement at or before the expiration of one year; if on a voyage, then on return to New York, provided that if absent from New York for more than one year, the holder must send his address to this office, when an indorsement may be sent to attach thereto.” He further testified that he was absent from New York till May or June 1863, and was there twice in that year; that he was in New York twice in 1864, a good while in all, perhaps three months; but that in no time in 1863 or 1864 did he apply for a new certificate, or for an indorsement; that in 1866, just before taking command of the insured ship, he was in New York, arriving there from sea, and made then no application for a new certificate, or for an indorsement ; that he never sent his address by mail to the association ; that he read the memorandum on the back when the certificate was received, and knew he could get it indorsed o. renewed at any time; that, at the time he sailed in the insured ship, he thought that he did not have a certificate, and knew that it had never been indorsed or renewed, and did not know it would make any difference, or he would have got one.</p> <p>Isaac H. Upton, secretary of the American Shipmasters’ Association, in reply to a question whether Captain Grant was in 1866 a holder of an actual certificate of the association for the year 1866, or for any part of said year, testified that he was not so recognized by the association, and that he was not recognized because his certificate had expired by limitation, and had never been renewed, and that his mere presentation of it would not have entitled him to a renewal.</p> <p>On the above facts, the judge, at the request of the defendants, reported the case for the determination of the full court. If the court should be of opinion that the warranty was broken, judgment to be entered for the defendants; otherwise, for the plaintiff!</p>

<p>The first of these suits was a bill in equity brought to cancel a policy of insurance effected on the defendant’s ship Young Mechanic, from Boston to Hong Kong, for $7500 on the body of the ship, valued at $65,000, and for $2500 on her freight, valued at $22,500. The ship was totally destroyed at sea April 10, 1866. The second suit was an action of contract on the same policy. On the bill in equity, issues were framed, and at the trial of these issues, before Hoar, J., it appeared that the agreed freight was $2500, and was fixed February 6, 1866. And the jury found that the ship was seaworthy; that the defendant did not conspire to destroy the ship ; that the valuation of the ship of $65,000 was excessive in the sum of $10,000; that the valuation of freight of $22,500 exceeded the value of the freight and outfits $2500; that the value of the freight was $18,000, and of the outfits was $2000, but that neither of these excessive valuations was fraudulently excessive ; and that the insurance effected on the ship exceeded her value in the sum of $12,500, and on her freight and outfits, exceeded their value in the sum of $10,300.</p> <p>At the request of the insurance company, the presiding judge reported the case for the determination of the full court: if, upon the facts so found, the court should be of opinion that the policy ought to be cancelled, a decree for cancellation to be entered in the suit in equity, and judgment for the defendant in the action at law; if the policy should be held valid, then judgment for the plaintiff to be entered in the action at law, and the suit in equity dismissed.</p>

<p>The defendant, a coal merchant in Baltimore, and owner of coal mines, contracted to ship to the plaintiffs in Boston five thousand tons of coal, to be shipped from time to time during nine months, “ but if prevented or obstructed by breaches or other unavoidable occurrences on the railroads or at the mines, no claim for damages will be allowed.” Breaches occurred on the railroad. At the trial of an action for nondelivery of the coal, the jury were instructed that the defendant was not bound to deliver to the plaintiffs the whole amount of their order to the exclusion of other customers, but that his obligation to the plaintiffs would be satisfied by delivery to them of such a proportion of his reduced means of supply as the amount of the plaintiffs’ order bore to the whole amount of the defendant’s sales, including the ordinary amount of his home trade. Held, that the instructions were correct.</p> <p>A statement by a judge in his charge to the jmy, in an action of contract, that if the contract had been performed to its full extent, and no conditions had exonerated the defendant, it would have been a very profitable matter to the plaintiff: that, as it resulted, he may have lost the opportunity of putting a profit of $15,000 or $20,000 in his pocket; and that it is a great disappointment to a mac to lose such an amount as that, affords the plaintiff no ground of exception.</p>

<p>In an action on a warranty of the genuineness of an indorsement on a note sold by the defendant to the plaintiff, in which the defendant contended that the plaintiff knew that he was acting as agent for a third party, the judge instructed the jury that the plaintiff was bound to show that he was ignorant that the defendant was dealing for a third party, and that if he failed to do this, or if the jury were unable to say on the whole how this was, the plaintiff was not entitled to recover. Held, that the instruction was misleading, because the plaintiff, though bound to prove a contract with the defendant, was not bound to disprove any of the facts from which a contract with the third party might be inferred.</p> <p>An express warranty that a note is genuine, made by the agent of the seller, will hind the agent personally, if it appears that such was the intention.</p>

<p>The owner of a lot of land, having a right of way, acquired by grant, over two passages leading therefrom, built a close board fence five feet high on the boundary of his land, extending across one of these ways, and a subsequent owner placed palings three or four feet high on top of this fence. Held, that the maintenance of this fence for seven years was not, of itself, an abandonment of the right of way over the passage across which it was built.</p>

Tort against the defendant, as an innkeeper, for the loss of the plaintiff’s goods while the plaintiff was a guest at the defendant’s inn.

<p>A deposit of money by A. with B. for which B. has given the following receipt: “ Received from A. $5000 for the purchase of stocks, for which I agree to account for on demand,” is not shown by said receipt to be such a trust as to constitute a fiduciary debt, which would not be barred by a discharge in insolvency.</p> <p>In an action in which the defendant denied his liability and also pleaded a certificate of his discharge in insolvency, a bill of exceptions stated that, “ by agreement of counsel, they tried before a jury only the issue of the validity of the discharge," and that the verdict was for the defendant. The record did not show that the cause of action was a fiduciary debt. Held, that after verdict it was too late for the plaintiff to show that the debt was fiduciary, and so not barred by the discharge.</p>

<p>A policy conditioned to be void on failure to pay “ any notes or other obligations given for premium,” purported to be issued in consideration of a certain sum “in hand paid” and of annual premiums for a like amount. Of the said sum only a part was paid in cash, and for the balance a note was given. The note set forth on its face that, if not paid when due, the policy should be void in accordance with the conditions of the policy. Held, that the policy was forfeited by failure to pay this note when due, and that the amount of this note must be deducted from the net value of the policy in determining the premium of temporary insurance under the St. of 1861, c. 186.</p> <p>A policy terminable by failure “ to pay when due any notes or other obligations given fov premium,” is determined by failure to pay an instalment due on a premium note.</p>

<p>Contract, against the defendants, who carried on business under the name "of the Adams Express Company, to recover the value of a package of money. In the superior court, judgment was ordered for the plaintiff on agreed facts, and the defendants appealed. The agreed facts were as follows :</p> <p>“ It is agreed that the plaintiff delivered to the Adams Express Company, as common carriers, at Wilmington, in the State of North Carolina, March 21,1865, a package containing one hundred and fifty dollars, directed to Patrick Corbett, Taunton, Massachusetts, and the said Express Company at the same time delivered to the plaintiff a bill of lading, a copy whereof is hereto annexed, and which makes part of this statement; that the said Express Company shipped said package with other packages from Wilmington by the steamship General Lyon, which ship was accidentally burnt at sea, and said package thereby destroyed. It is further agreed, if evidence of the fact be admissible, that the plaintiff would testify that when the plaintiff delivered the package and took the bill of lading, » copy of which is annexed he did not read the same.”</p> <p>The material parts of the bill of lading, of which the copy was annexed, were as follows :</p> <p>“Adams Express Company. Great Eastern, Western & Southern Express Forwarders. $150. Form 5. Wilmington, March 21, 1865. Received from —- One P., Sealed and said to contain one hundred and fifty dolls. Addressed, Patrick Corbett, Taunton, Mass.</p> <p>“ Upon the special acceptance and agreement that this company is to forward the same to its agent nearest or most convenient to destination only, and there to deliver the same to other parties to complete the transportation — such delivery to terminate all liability of this company for such package; and also, that this company is not to be liable in any manner or to any extent for any loss, damage, or detention of such package, or of its contents, or of any portion thereof, .... occasioned by the dangers of railroad transportation, or ocean or river navigation, or by fire or steam. For the Company. Robinson.”</p>

Conteact upon policies of insurance on the schooner Lena issued in February and May 1866, by the defendants in the respective suits to the plaintiffs, Clark & Woodward.

Tort brought by the plaintiff, who was a minor; by his father, as next friend, against the defendant for the alleged carelessness of the defendant’s agent, in so negligently driving a horse attached to a milk cart, through Beach Street, in Boston, that the plaintiff was run over, and seriously injured.

Tort to recover the value of twenty-five barrels of whiskey.

<p>Oral evidence is admissible to show that in a written contract for the purchase of a certain number of “ barrels ” of petroleum oil at so much a gallon, the word “ barrel ” means a vessel of a certain capacity, and not the statute measure of quantity; and for this purpose, evidence that petroleum oil is often sold in barrels and that the barrels are usually of such certain capacity is competent, as is also evidence that the barrels exhibited by the seller at the time of his offer to deliver, some two months after the date of the contract, were of said capacity; and that the purchaser, in all the discussions concerning the delivery, did not suggest that the barrels were not what the contract required; and that the purchaser at said time intended and was ready to receive the barrels, if he had con? sidered the oil of the requisite quality.</p>

Contract against the defendants as common carriers, for an alleged injury to five casks of sheet zinc, the property of the plaintiffs, and brought from New York to Boston on board the defendants’ vessel. The bill of lading, executed by the defendants’ agent, recited that the goods were “ in good order and condition ” when received.

Contract for breach of an agreement to purchase a lot of land in Boston. The land in question had been conveyed in fee in 1862 to the plaintiff’s wife, who had died seised thereof in 1864, leaving no blood relations except one sister who was of English parentage, and had always lived and was still living in England.

<p>After a devise “in trust, to A.,” “for the benefit of B., wife of C., to her sole and separate use, and her heirs and assigns forever,” took effect, B. died, leaving C. and their two children surviving. Held, that B. took an equitable estate in fee during her coverture, which descended to the children, subject to C.’s tenancy by the curtesy; that the use was executed in the children by the statute of uses; and that, upon the death of one child under age and unmarried, its share was inherited by the other, under the Gen. Sts. c. 91, § 1, cl. 6.</p>

Bill in equity filed by the treasurer of the Commonwealth, under St. 1862, c. 224, § 11, to restrain the defendants from prosecuting their business until the tax assessed upon them by § 2 of that statute has been paid.

<p>Bill in equity. At the hearing before Hoar, J., upon bill, answer and plaintiff’s proofs, the case appeared to be as follows: The Portland Company made a promissory note for $2296, dated August 23, 1860, and payable in six months from date to the order of Page, Briggs & Babbitt; and this note was indorsed by Page, Briggs & Babbitt to the defendants. In January 1861, the indorsers became insolvent, and assignees were appointed of their estate. In July 1861, the defendants proved the note against the estate of the indorsers, and received a dividend thereon of $457.81, and on August 22, 1861, signed an agreement, by which, after reciting that they had received a dividend on the note in question and on other notes held by them, they promised the assignees, if they should receive from the makers of the notes “ a sum of money which, with the dividend aforesaid, should exceed the amount of said notes, to pay the excess,” to the assignees. In 1865, the assignees assigned all their interest in any claims against the defendants, under this agreement or otherwise, to the plaintiff.</p> <p>The plaintiff alleged in the bill that the Portland Company had paid the full amount of the note, with interest, to the defendants ; and that the defendants now held the sum of $457.81, being the amount of the dividend received by them in trust for the assignees, and under them for the plaintiff. In the answer, -the defendants denied that the plaintiff had set out any facts entitling him to any relief in equity, and also that he had set out any sufficient facts to entitle him to recover against them either in law or equity, and that the Portland Company had ever paid the note to them; and alleged that they did not have possession of the note when the dividend was received, but that it had been, before that time, delivered to the makers, and a new note for the whole amount substituted. The answer was under oath.</p> <p>At the hearing, after the above recited facts had appeared, the defendants moved to amend their answer by striking out the clause relative to their not having possession of the note at the time of the dividend; and inserting a statement that the note, after it had been proved against the indorser’s estate, was with. drawn from the files of the court of insolvency and held by the defendants, and, while so held, a note for a corresponding amount was given by the Portland Company to the defendants three different times; that when the first of these three notes became due and payable, it was dishonored and another note taken in its place, and when the second became due, that was not paid, and another note was taken in its place; that when the third of the notes became due, that was not paid, and having waited some time and made frequent demands for payment, the defendants sold the original note and the said last mentioned note in open market, for the most that could be obtained therefor, namely, the sum of seventy-five cents on the dollar.</p> <p>It appeared from the evidence offered in support of this amendment that the defendants had held the original note as collateral security for the renewed notes.</p> <p>The plaintiff objected to the allowance of the amendment; but, in case it should be allowed, he did not desire to offer any further evidence.</p> <p>The presiding judge was of opinion that, if it was competent to amend the answer in the manner proposed, the amendment should be allowed, and he reserved all questions in the case, including the competency of the" amendment, for the determination of the whole court.</p>

<p>Bill in equity filed August 19, 1868, to restrain the defendants from entering a parcel of land alleged to be the property of the plaintiff, and from erecting thereon a building to be used by the defendants as a ward room and a hose house. The answer alleged that the land in question was the property of the defendants.</p> <p>On June 1, 1867, the legislature passed an act (St. 1867, c. 308) entitled, “ An act to enable the city of Boston to abate a nuisance "existing therein; and for the preservation of the public health in said city.” The first section of this act was as follows:</p> <p>“ The city of Boston may purchase or otherwise take the lands or any of them in said city, with the buildings and other fixtures thereon, situated and lying” within a certain district, known as the Church Street District. “ Said city shall, within sixty days from the time when they shall take any of said lands, file in the office of the registry of deeds for the county of Suffolk a description of the lands so taken, as certain as is required in a common conveyance of lands, and a statement that the same are taken pursuant to the provisions of this act; which said description and statement shall be signed by the mayor of said city; and the title to all land so taken shall vest in the city of Boston; and if any party whose land is taken shall agree with the said city upon the damage done to him by the said taking, the same shall be paid to him by the said city forthwith. And it shall be the duty of the city of Boston, forthwith to raise the grade of said territory so taken or purchased, laying out and filling up the same with good materials, with reference to a complete drainage thereof, so as to abate the present nuisance and to preserve the health of the city, and in nowise to affect injuriously the lands of the Commonwealth or its grantees in the Back Bay, or the system of drainage therein.”</p> <p>The second section was in these words : “ Any. person entitled to any estate in any part of the land so taken, may at any time within one year from the time when the same shall be taken, as well in his own behalf as in behalf of all other persons having estates in the land so taken, file a bill in equity in the supreme judicial court, in the county of Suffolk, setting forth the taking of the complainant’s land, and the condition of the same in respect to its capacity for drainage, and whether the complainant claims any and what damages against the city of Boston, or the Boston Water Power Company, or any other corporation or person, by reason of any and what wrongful act o* omission by their causing a diminution in the value of his land at the time of said taking, and praying an assessment of damages against such parties. And upon the filing of such a bill, the said court shall cause notice of the pendency of said bill to be given to the parties named therein as defendants, according to the course of courts of equity, and also public notice thereof, to all persons in whose behalf such bill shall be filed, to appear and become parties thereto, if they shall think fit to do so. Said court shall prescribe how such public notice shall be given, and what length of time shall be allowed for appearing and becoming a party to such suit. Any party failing so to appear and become a party within the time prescribed by the court, shall be lorever barred from recovering any damages on account of such taking. Each person so appearing,and becoming a party, shall file a written description of the land in which he claims an estate, together with a plan thereof, so as clearly to distinguish the same from all other lands, and shall also declare what estate he claims therein. If he claims that the value of said lands at the time of taking the same was lessened by any unlawful act or omission of the city of Boston, or the Boston Water Company or any other corporation or person, so that the value of the land in its condition when taken would not be a just compensation for all the estate and rights of the party in and in reference to the same, such party shall also state what such injury is, and how and by whom the same had been, or is, caused, and what right or title of the party is violated, and what amount of damages in gross is claimed by him, as compensation therefor, from each of the parties defendant.”</p> <p>Other sections of the act provided for the appointment of commissioners to hear the parties under this bill, and assess the value of the land taken; for the framing of issues, and their trial by jury; for a decree and execution for damages, and also for compensation for injury to the owners of the land taken, by any unlawful acts or omissions of the Commonwealth or its agents or officers, or of the city or the Boston Water Power Company, which might have diminished the value of the land at the time of taking it.</p> <p>By an additional act of the same date, St. 1867, c. 353, the city was “ authorized to lay railway tracks through any street or streets of said city, and to maintain them so long as it may be necessary to enable them to transport earth and other material to fill up the Church Street District, so called, and to abate the nuisance existing therein, under the provisions ” of the above act.</p> <p>Pursuant to the provisions of the act, the board of aldermen, by an order signed by the mayor May 9,1868, declared that the city “ has taken and by these presents does take the following described parcels of land.” These parcels of land formed the district described in the first section of St. 1867, c. 308, and included the lot of land in question. This lot, at the time of the nassage of this order, was owned in fee by the plaintiff.</p> <p>On May 22,1868, the city council passed an order appointing commissioners to supervise the work to be done in the Church Street District, and authorizing them “ to contract for filling all the streets and places to the grade of at least eighteen feet above mean low water; and the cellars, back-yards and vacant lots to the grade of at least twelve feet above mean low water; also, for raising and underpinning such of the houses and other buildings on said territory as they shall deem necessary to the preservation of the public health.” Another order of the city council, passed at the same time, provided that when the lands within the district had been taken by the city, under the provisions of St. 1867, c. 308, “ the mayor may enter into a contract in behalf of the city of Boston, to convey the estates on said district, or such portions as are not required for widening streets or other purposes, back to the original owners, after the territory and buildings have been raised as provided in the foregoing order; provided, however, that the persons who owned the estates at the time of their taking by the city will agree in writing, to take a release of their respective estates, and to clear the basements of their buildings before the raising, and make all necessary repairs upon the buildings at their own expense after the raising and underpinning, and make no claim upon the city for any damages on account of the work performed by the city.”</p> <p>In July 1868 the city council passed an order to erect a building to be used for a ward room and a hose house, on a certain described “ lot of land belonging to the city.” This lot was the land which had belonged to the plaintiff, and this bill was brought to restrain the execution of the order.</p> <p>The above facts appeared at the hearing before Gray, J., who reported the case for the determination of the whole court.</p>

<p>A lease of a plantation in a state within the rebel territory during the civil war, made within that state by a citizen and resident thereof to a citizen of this Commonwealth being there, at a rent payable and paid in part in cash on taking possession of the plantation, and the rest payable out of the cotton crop to be raised thereon; and by which the lessor agreed to deliver, and the lessee to receive and pay for, corn then on the plantation, and which was immediately delivered accordingly, and used thereon; was not prohibited by the law of nations, or by the act of congress of 1861, c. 3, § 5, and the proclamations issued by the President under that act. And in the absence of any objection to the lessor’s capacity to sue, he may maintain an action in this court to recover the unpaid instalment of the rent and the value of the com.</p>