Volume 101 — Massachusetts Reports

Indictment returned into the superior court in Suffolk against Charles H. Macloon, Nicholas Kearney and Frank Macloon, for manslaughter.

Indictment, under the Gen. Sts. c. 178, § 46, charging an escape from the house of correction at South Boston. At the trial in the superior court, before Putnam, J., the fol-owing facts appeared: The house of correction was originally provided with a yard properly inclosed, appurtenant to the house.* A few years since, a public street was cut through this yard, 'and fences were built along the line of the street, so as to form two yards, separated by the street.

<p>On the trial of an indictment for manslaughter, the record of a conviction of the defendant for the assault which caused the death is conclusive evidence that the assault was unjustifiable.</p>

Writ of error to reverse a judgment of the municipal court of the city of Boston, rendered at August term 1857.

<p>On the trial of a complaint for uttering loud exclamations and outcries in a public street in W., and thereby drawing together a number of persons, to the common nuisance of all citizens there inhabiting, being and residing, proof that the defendant had an altercation with a constable, in which he talked in a loud and angry tone, using abusive epithets and profane language, and that a large crowd was attracted, some of whom encouraged the defendant, is no variance; and on such trial the defendant cannot ask a witness whether he saw anything which indicated that the citizens of W. were disturbed or annoyed by what the defendant was doing.</p>

<p>Complaint against a licensed victualler for violation of the 8t. of 1868, c. 141, § 10. The case is stated in the opinion.</p>

<p>The attorney for the defendant, having examined a letter which the district attorney offered to read at a criminal trial, said that he had no objection to its being read, bat, after the district attorney had begun to read it, objected to its admission in evidence. The presiding judge, however, refused to stop the reading, ffeld, that such refusal, at that time, was matter of discretion, to the exercise of which no exceptions lay.</p>

<p>An indictment under the Gen. Sts. c. 162, § 1, charging forgery of an “ accountable receipt" of the tenor following: “ Received of W. J. D., surgeon general, my discharge and check for $100. G. P. G." is repugnant; such receipt not being an accountable receipt.</p>

Indictment for keeping a disorderly house. The caption of the indictment was in these words: “ Norfolk, ss.

<p>An averment in an indictment on the Gen. Sts. c. 165, § 41, that the defendant “ did cruelly beat a certain horse ” is a sufficient description of the offence and of the horse.</p>

<p>Bill in equity by the administrator with the will annexed, of Francis T. Clark, praying for instructions. The case was heard before Foster, J., and by him reported to the full court, substantially as follows:</p> <p>Francis T. Clark and his wife, Ellen B. Clark, were both drowned on July 24,1867, by the same accident, but the judge found that he survived his wife. Francis T. Clark left surviving him one child, Florence Clark, and Ellen B. Clark left surviving her two children, the said Florence Clark and Edgar W. Clark, her son by a former husband. Francis T. Clark by his will, after certain legacies, gave the residue of his estate to his wife. Edgar W. Clark claimed a moiety of this residue under the Gen. Sts. c. 92, § 28.</p>

Mather, and directing that the sum of ten thousand dollars should be paid to him by the executor of Joshua Mather, the husband of Mary J. Mather. The case was heard before Foster, J., who made a report thereof to the full court, substantially as follows: Joshua Mather died June 22, 1865, without issue, leaving a widow, the said Mary J. Mather, for whom he made certain provisions by his will.

<p>Contract on an award. The case was tried in the superior court, without a jury, before Reed, J., who allowed a bill of éxceptions, of which the following is all that is now material:</p> <p>“It was claimed by the defendant that the award was not final, certain and conclusive, and so no judgment could be rendered thereon. The court ruled otherwise, and the defendant being aggrieved, as he thinks, by this ruling, excepts thereto The submission and award are made a part of the case. There was evidence tending to-show that the suit spoken of in the award was, after the award, dismissed. The court divided the award, and rejected that part awarding costs, and found for the plaintiff, assessing damages in the sum of $115.42. To which rulings and findings the defendant, feeling aggrieved thereby, excepts.”</p> <p>The agreement to refer was in these words: “ It is hereby agreed that all differences between us shall be referred to George D. Porter and John Q,. A. Griffin, (and, if they cannot agree, any third person to be joined upon whom said Porter and Griffin can agree,) the award of whom, or in case of the joining of a third person, the award of a majority of whom, shall be binding, final and conclusive between us. Michael Benson, Nicholas White. October 16,1858.”</p> <p>The award was as follows: “ We the undersigned, referees appointed by the within agreement of submission, having notified and met the parties and heard their several allegations, proofs and arguments, and duly considered the same, do award and determine that the within named Michael Benson shall recover from the within named Nicholas White the sum of ninety-eight dollars ^ and half the costs of this reference, which last amount in the whole to the sum of forty dollars, and one half whereof is twenty dollars; that the action or suit in equity in the supreme judicial court for Middlesex county shall be dismissed from the docket, and no costs taxed to either party; and that the same shall be in full of all matters within referred to us, with this proviso and understanding, that the parties shall continue to hold the real and personal estate belonging to the late firm composed of said Benson and White, as tenants in common, each party owning one half thereof. Ebenezer L. Pierce of Woburn was joined as a referee to John Q,. A. Griffin and George D. Porter by the agreement of said Porter and Griffin. George D. Porter was present at the various hearings and heard the proofs, allegations and arguments of the parties, and was present at the making up of this award, but refused to sign oi agree to the same. Ebenezer L. Pierce, John Q,. A. Griffin. April 11, 1859.”</p>

Tort to recover damages for a personal injury alleged to have been caused to the plaintiff by the carelessness of the defendants’ servants.

<p>The undertenant of a lessee assigned his interest to a third party. At the time of the assignment the lessor had recovered possession of the premises on an execution against the lessee, and had put 0. into possession of part of them as tenant at will. Held, that the assignment was void, and was not made good by an oral assent of the lessor thereto, given after 0. had been put into possession; and that it was immaterial under what motive or understanding between the lessor and lessee the judgment for possession was obtained.</p>

<p>The note of a manufacturing corporation in the hands of a holder in good faith, for value, who took it before maturity and without knowledge that the maker had not received full consideration, can be enforced against the corporation, although it was made as an accommodation note.</p>

<p>Writ of entry by Alvah Mansur, Joseph Mansur, Ellen E. Tebbetts and Lewis B. Tebbetts, her husband, to recover land devised to the three first named demandants as tenants in common by their father. The tenant claimed under an execution levied on the demanded premises on May 23,1857. The case was heard on agreed facts which are stated in the opinion.</p>

Action under the Gen. Sts. c. 137, to recover possession of a house in Natick. The writ was sued out and served on the defendant on December 22, 1866.

<p>Contract. The declaration contained four counts : one on a promissory note made by the defendant to the order of the plaintiff, one for money had and received, one for money lent, and one on an account annexed. It was conceded that all four counts were for the same cause of action. The defendant’s answer was as follows : “ The defendant denies that he owes the plaintiff the said amount claimed to be recovered in her writ, or any part thereof. And if the plaintiff should prove that any such sum was due to her, the defendant will prove it has been paid in full.”</p> <p>At the trial in the superior court, before TWilkinson, J., the plaintiff offered no evidence, but contended that the answer was insufficient. No objection to the answer had before been taken. The promissory note was not put in evidence, but, on being handed to the defendant’s counsel, he contended that it was void for lack of a revenue stamp ; but the court held that this point was not open to him on the pleadings. The defendant’s counsel offered to prove by the defendant’s wife that she, in the absence of her husband, who was in jail, had paid the note to the plaintiff. But the court rejected the evidence. No other evidence was offered, and the judge directed a verdict for the plaintiff for the amount of the note. The defendant alleged exceptions.</p> <p>R. B. Caverly, for the defendant. 1. The note was void upon its face for want of an internal revenue stamp.</p> <p>2. The payment by the wife was a transaction in the absence of the husband, to which she was a competent witness. St. 1865, c. 207, § 2.</p>

Action under the Gen. Sts. c. 137, to recover possession of a house in Medford, after notice to quit for nonpayment of rent.

Bill in equity to restrain the defendant from interrupting the plaintiff and his tenants in the enjoyment of a right to take water from a well on the defendant’s land.

Tort for injury of the plaintiffs’ mill rights. The case was referred to arbitrators, and reserved by Wells, J., on their award, for the determination of the full court. The award was as follows : “We find that the plaintiffs owned in fee simple a mill and mill-privilege on the Assabet River, which had been used long previous to the year 1847 as a mill and mill-privilege, driven by the waters of the said river.

<p>In an action for possession of real estate, the plaintiff put in evidence a mortgage of the premises, a deed of them to himself by the mortgagee under a power of sale in the mortgage deed, and the affidavit of the mortgagee under the Gen. Sts. c, 140, § 42; and the defendant put in evidence a deed of them to himself from the mortgagor, of a date subsequent to the mortgage. Held, that the plaintiff’s title was valid as against the defendant.</p>

Contract to recover the price of goods sold and delivered by the plaintiffs to the wife of the defendant for her own clothing. A savings bank was summoned as trustee. The case was tried in the superior court before Lord, J., who made the following report: “ It was agreed that the defendant and his wife were married on October 18,1865, and had since resided in Lowell as husband and wife up to the day of the sale of the goods sued for. The sale and delivery were admitted.

<p>The repeal of the Gen. Sts. c. 86, § 61, by the St. of 1868, c, 141, § 26, does not prevent the purchaser of liquors, sold in violation of the former, from recovering the price in an action for money had and received, if the sale was made and the price paid before the repeal.</p>

Bill in equity to restrain the use on the labels of razor straps sold by the defendant of the words “ Genuine Emerson’s Elastic Razor Strap,” or of the name of the plaintiff, or of the plaintiff’s place of business.

Four petitions by the city of Charlestown for writs of certiorari to quash proceedings of the respondents in abating taxes assessed by the petitioners on the Tudor Ice Company, James Lee, Jr., Jerome G. Kidder and George W. Warren respectively.

<p>Two actions of tort to recover for injuries alleged to have been caused to the plaintiffs by reason of a defect in a highway in Rockport; tried together before Foster, J., and by him reported substantially as follows:</p> <p>The plaintiffs started for a drive from Rockport to Gloucester, in a carriage drawn by one horse, on August 22,1867, and on the way met with the accident which caused the injuries in question.</p> <p>It appeared from evidence put in by the plaintiffs, and from a plan, also introduced in evidence, that the part of the highway at which the accident occurred ran for forty or fifty feet along the side of an excavation, which was at the point of the accident nine feet deep; that the side of the highway towards this excavation was built up of stone, forming a bank wall, and along the top of this wall were placed cap-stones, forming a barrier or stone fence to protect travel; that at the point where the accident occurred, a portion of this barrier of stone had fallen out of place, leaving a gap six feet in width, through which the plaintiffs’ carriage went over the bank wall; that the top stone had been off the wall more than twenty-four hours, and the selectmen of the town had notice of the defect; that the highway along this place descended in grade moderately, or about eight feet in fifty, measuring from the highest part, the point of accident being about midway of the descent; that the travelled part of the highway was from twenty-one to twenty-two feet wide, and the inclination from the centre to the wall from twelve to thirteen inches, the space between the travelled track and the wall from two to four feet, and the wall two feet thick. The defendants were bound to keep the highway in' repair.</p> <p>The plaintiff Hartwell testified as follows: “ Miss Babson drew my attention to a hole in the roadway, and told me to put something in it to make it safe for travel. After passing by some distance, I turned and drove back, and just before we came to the hole I passed Miss Babson the reins and got out. I sat on the left side. I walked a very few steps to the left towards the gutter, to get a stone, and saw my horse backing. I made a spring to catch him, and caught him by the bridle. In a second all was over. The horse was backing when I caught his head. In backing, he turned his head to the right. The carriage went over backwards off the wall, and I struck on my feet at the bottom of the precipice. I got out nearly opposite the gap in the wall. The hole m the road was a little beyond the gap. The rut was from two to three feet from the wall. There was nothing to obstruct my right off-hind wheel. There were holes this side of the main wall, among small loose stones which lay between the off-rut and the wall. I saw my wheel go into a low place where the stones were. The horse’s head inclined to the right off-side in backing. I think the off-wheel went off first. When I turned back I meant to keep on after putting a stone into the hole.”</p> <p>On cross-examination he testified: “ I had been over the road before occasionally. I had passed the place of accident five or six rods when I turned. The hole in the road was from six to ten feet towards Rockport from the gap in the wall. I saw it a few feet before we got to the gap in the wall on the eft of where the horses travel; between that and the wheel rut. I drove by it till I came to a good place to turn round, then I turned and travelled back up the hill. The gap in the wall was now on the right of the road, the side Miss Babson sat on. The horse was not stopped at all. I jumped out before we came to this hole in the road, the horse continuing in motion on a slow walk. I stepped to the left toward the gutter, and was about opposite the horse’s head — to the left, on the side I sat. I did not go out of the travelled way, nor in front of the horse’s head. The horse began to back just as I got opposite his head; probably he had not backed more than one step when I seized him. Miss Babson did not say anything nor exclaim. I seized the bit very quickly. The horse kept backing and pulling, turning his head away from me and backing quite furiously after I seized hold. I had a firm hold, and nothing gave way, and I exerted all my strength to prevent the backing. The horse was too much for me, uncontrollable by me. I had nothing in my hand. Before he began backing, I may have been half a foot or half a step in advance of the horse, but I made no motion, nor did anything to alarm him. He was not a horse that would back at any one approaching bis head. I hung on till the horse went off the wall. While doing this, I said nothing to Miss Babson, nor she to me. I did not see how the reins were after I put them into her hands. I recollect nothing that she said to me. Nothing but seeing the horse back led me to seize the head-stall. Nothing in the way of backing suggested any cause of alarm. The horse was perfectly gentle, and never backed before. Miss Babson had driven him, and well. I didn’t know whether Miss Babson reined in the horse or whether he backed voluntarily. The horse was furiously backing after I seized hold. It was more than I could do to manage and draw him forward. In backing, the wagon was thrown at right angles to the horse. Everything was so quick, one couldn’t form much of an idea of it except for a second. If there had been room enough, and the horse had continued pulling and backing, the carriage would have described a circle. I think I held to the bridle till the last second. I don’t think my hands left the bridle at all. I had hold when I went over.”</p> <p>On reexamination he said : “ It was not more than a second after I took hold by the horse’s head before I went over.” On re-cross-examination : “ The rat was near the edge of the travelled part of the way, about three feet from the wall; the wheel was in the rut when I seized the bridle.”</p> <p>The plaintiff Babson testified as follows : “ I noticed a cavity in the road; after passing it, I asked Mr. Hartwell to turn round and fill it, but at" first he thought it of no consequence; I insisted, and after driving to the foot of the hill, he turned. After turning, I noticed flies on the horse. Near the place, Mr. Hart-well passed me the reins and jumped out. The horse turned his head to the right, and the check-rein sort of looped and caught in the shafts on the right hand side. At the same moment I saw I was going backwards, and a motion of the carriage as if tipping back. Mr. Hartwell’s hand, I then noticed, was on the rein. Then I screamed. I remember no more; it was all instantaneous. My attention was never before called to this place in the wall.”</p> <p>On cross-examination she testified : “ I held the reins in my hands when I noticed the horse backing, and I believe I lifted the reins loosely when the horse began to back, intending to slap with them, but I did not pull at any time. If I did anything, it was to urge the horse forward. The horse was walking leisurely as Mr. Hartwell jumped out, as any horse goes up hill, and he continued in motion. I know Mr. Hartwell wasn’t beyond the horse’s head; he was about one and a half yards from it when the horse turned it. The horse was then in motion. He threw his head round, and the check-rein caught on the shaft. The check-rein looped down, as it would naturally when the horse turned his head, and the part that looped caught on the shaft. The check-rein was fastened upon the water hook. I can’t tell what part of the check-rein caught on the shaft. The norse threw his head towards the wall, away from Mr. Hartwell, and then, in an instant, backed. "When I felt myself tip backwards Mr. Hartwell grasped the bits of the horse. I don’t think the horse took more than one or two steps; can’t say how many. I think that, when Mr. Hartwell seized hold, the hind feet of the horse were over the wall, and the horse threw him over. I am certain the hind wheels were off, and I think all four were off when Mr. Hartwell seized the horse by the head. Nothing had been said when we turned as to changing our route.”</p> <p>Evidence was also introduced on the part of the plaintiffs tending to show that the horse was perfectly kind and gentle, and easy for any one to manage; that he would stand without hitching, and had no habit of backing nor any vicious habit whatever; that he was a fast traveller, but easily governed; and that the harness was suitable and strong.</p> <p>This was all the material evidence in the case. The defendants offered no evidence, and asked the presiding judge to rule that the actions could not be sustained. But the judge declined so to rule, and instructed the jury (besides other instructions not objected to) as follows :</p> <p>“ It is necessary, in order to enable the plaintiffs to recover, that the defect in the highway should have been the sole cause of the accident, no other cause contributing thereto. If before the accident the horse, from any cause, became actually uncontrollable, and was so when the accident occurred, the plaintiffs cannot recover. But if there was only a momentary loss of control, and the control of the animal would have been instantly regained if the vehicle had not come in contact with the defect in the way, then the plaintiffs may recover. The jury must be satisfied that the animal did not practically pass beyond the control of the plaintiffs, except for an instant, and that control would have been immediately regained but for the coming into contact with the defect.”</p> <p>The jury returned verdicts for both the plaintiffs, and the question of the liability of the defendants in the actions, or either of them, was reserved for the consideration of the whole court.</p>

Tort to recover damages for a personal injury alleged to have been caused by a defect in a highway which the defendants were bound to keep in repair. At the Trial in the superior court, before Wilkinson, J., it appeared that the injury was caused by the defect, and that the defect had not existed more than thirteen hours at the time of the accident.

Tort for injuries sustained by the plaintiff from the fall of the platform of an elevator, in consequence of a defect in its main chain.

<p>The provisions of the Gen. Sts. c. 123, § 32, and c. 133, § 32, cl. 5, 6, exempting a certain amount of tools and implements, stock and materials, employed in trade or business, from attachment and execution, do not apply to partnership property.</p>

<p>If the decree of a judge of probate, under the Gen. Sts. c. 101, § 22, granting leave to bring an action on an administrator’s bond, bears date prior to the time of bringing the action, evidence is not admissible at the trial to show that the decree, although actually made at the date stated, was not reduced to writing till after action brought.</p>

Contract by the assignee in bankruptcy of Robert L. Hall, to recover $500 deposited by Hall with the defendants. At the trial in the superior court, before Wilkinson, J., without a jury, the defendants contended that the court had no jurisdiction of the cause, and that the United States courts had exclusive jurisdiction of suits by assignees under the bankrupt act; but the court ruled otherwise.

<p>On the hearing of a libel for divorce on the ground of adultery committed with a certain person, evidence of acts of adultery by the libellee with that person out of the Commonwealth and after the filing of the libel is competent to show the nature of the intercourse between them at the time when the adultery is alleged in the libel to have been committed.</p>

Tort for slander. The declaration alleged that the defendant accused the plaintiff, being a single woman, of the crime of fornication bywords substantially as follows: “Maria Robbins” (meaning the plaintiff) “ has had a baby.” The answer was a general denial.

Petition by Long and four others, claiming to be firewards of the town of Melrose, and asking for a mandamus to issue against the respondents, selectmen of the town, commanding them to deliver to the petitioners certain badges which had been furnished by the town for its firewards to wear or carry to fires, as required by law, and were in the custody of the respondents.

Contract. Trial in the superior court, before Lord, J., who reported the case for the determination of this court. The material portions of the report were as follows : “ At the trial there was evidence tending to show that the plaintiff, a soldier in camp some four miles from Newbern, North Carolina, delivered to George D. Sargeant, a commissary, in the captain’s tent, $200 to be sent by express to the plaintiff’s wife at Lowell, Massachusetts.

Bill in equity by the widow of John McCarty, praying that his executors, John Cosgrove and John Quinn, might pay to her $3640.75, being the residue of his personal estate after payment of debts and legacies.

<p>Petition by children of William Ramsdill, for partition of all the real estate left by him at his death. At the hearing in this court, before Wells, J., the following facts appeared:</p> <p>The said William Ramsdill died in 1860, leaving a will by which, after directing payment of his funeral charges and just debts, he gave, devised and disposed of all his estate, real and personal, to his wife, Lucy L. Ramsdill, “ to be held by her and her heirs forever, and to her and their sole and separate use,” and appointed Thomas Wentworth, Jr., husband of his daughter Mary, to be his executor.</p> <p>Lucy L. Ramsdill, who was the mother of the petitioners and of Mrs. Wentworth, after her husband’s death conveyed to Mrs. Wentworth a parcel of the land left by him, and died in 1866.</p> <p>The petitioners sought partition of all the estate left by theii father, on the ground that no provision was made for them by his will.</p> <p>“ There was evidence tending to show that William Ttamsdill understood that he had provided for his children by giving to his wife only a life estate in his property, and that after her death it would be equally divided between them.</p> <p>“ The court ruled that, if the testator omitted to provide for his children intentionally, for the reason that he supposed that the legal effect of his will, as written, would be to give a life estate only to his widow, and that upon her decease his children would by law be entitled to take the remainder in equal shares, that would not be such an accident or mistake as is contemplated by the Gen. Sts. c. 92, § 25; and awarded judgment for partition of such only of the lands described in the petition as had not been conveyed by the widow.” The petitioners alleged exceptions;</p>

<p>Bill in equity by Samuel T. Worcester and Frederic A. Worcester, executors of Joseph E. Worcester’s will, praying fa» instructions as to the distribution of his estate. The case was heard on the bill and answers, by Foster, J., and reserved for the determination of the full court on a report of which the following is the substance.</p> <p>Joseph E. Worcester died October 27, 1865, leaving a will, dated December 24, 1862, the material parts of which were as follows:</p> <p>“ I give and devise to my beloved wife Amy Elizabeth, in lieu of dower and such portion of my personal estate as she would otherwise be entitled to under the law of Massachusetts, my dwelling-house and barn and house lot, with appurtenances, to be held by her, for her separate use and benefit during her natural life, and, upon her decease, to be disposed of as the residue of my real estate; and also the sum of one thousand dollars to be paid out of my estate on the first day of January of each year during her natural life.</p> <p>“ I have already given to most of my nephews and nieces copies of a number of the books which I have prepared for the press, and it is my wish that each of my nephews and nieces should be furnished with a complete set of such of these books as are not out of print or such as may be easily obtained; and it is my will that my executors should supply to my nephews and nieces any deficiency that may be found to exist, with respect to such of my books as are still in use, but not including such as are out of print.</p> <p>“ To my sister Lydia Taylor, I give the sum of one hundred and fifty dollars to be paid to her annually, during her natural life, on the first day of January of each year.</p> <p>“ To each of my brothers and remaining sisters, who may survive me, viz: Sarah French, Deborah Loomis, Leonard Worcester, Taylor G. Worcester, John N. Worcester, Samuel T Worcester, Frederic A. Worcester and David Worcester, I give the sum of one hundred dollars.</p> <p>“ To my nephew Samuel W. Fuller, I give the sum of fifty dollars.</p> <p>“ To my cousin Sally Worcester, of Brighton, I give the sum of fifty dollars to be paid annually on the first day of January of each year during her natural life.</p> <p>“ To the American Bible Society, formed in the city of New York in 1816, and to the American Peace Society, incorporated by the legislature of Massachusetts, I give and bequeath, yet not to take effect till after the decease of my wife Amy Elizabeth, the copyright of my Quarto Dictionary of the English Language, the annual income of the same to be equally divided between said societies, subject nevertheless to any incumbrances, charges or contracts that may exist, at the time of my decease, in respect to said copyright.</p> <p>“ To my nephews and nieces, the children of my brothers Leonard Worcester, Taylor G. Worcester, Henry A. Worcester, John N. Worcester, Samuel T. Worcester, Frederic A. Worcester and David Worcester, and of my sister Lydia Taylor, who may survive me, I give and bequeath the residue of my estate, both real and personal, to be divided equally among them, and it is my will that my real estate be sold as soon as may be advisable for the purpose of making such distribution.</p> <p>“ Note 1. If any nephew or niece, who should not survive me more than one year, should leave children or issue, it is my will that such issue should receive the legacy bequeathed to the parent.</p> <p>“ Note 2. With regard to my esteemed nephew Samuel W. Fuller, the reason that he is not placed on the same footing with my other nephews is not for any want of affection for him, but from the fact that he is supposed to be in less need than the others.</p> <p>“ Note 3. Any money or other property which I have heretofore given or lent to any legatee, mentioned or included in this instrument, is not to be paid or accounted for to my executors.</p> <p>“ I hereby nominate my brothers,. Samuel T. Worcester and Frederic A. Worcester, executors to this will and testament, and I hereby give to my said executors, and should not both of them qualify as such, then to the one of them who shall accept the trust, full authority and power to sell, dispose of and convey any and all parts of my. real estate at discretion, and in the best manner to carry into effect the provisions of this will, and the equitable and proper settlement and distribution of the proceeds of the same, according to the terms thereof.”</p> <p>The testator’s sister, Lydia Taylor, died one month before him; his wife, and his cousin Sally Worcester, were still alive at the time of the hearing.</p> <p>At the testator’s death his brothers, Leonard, Taylor G., John N., Henry A., Frederic A. and David, and his sister, Lydia Taylor, had twenty-nine children. These were all the nephews and nieces that the testator had at his death, except Samuel W. Fuller, who was the son of a deceased sister. The testator’s brother, Samuel T. Worcester, never had had any children, and the testator, at the date of his will and at the time of his death, had no other brothers or sisters except two sisters, both childless widows.</p> <p>On August 19, 1867, more than one year after the death of the testator, but before any payment had been made to the residuary legatees, or any real estate had been sold under the provisions of the will, another son, Joseph E. Worcester, was born to the testator’s brother, Frederic A. Worcester. The question submitted to the court was, whether this nephew, Joseph E. Worcester, was entitled to share in the residue of the testator’s estate.</p>

Contract for breach oí a written agreement to receive willow cuttings and pay for them. The agreement was as follows “ Natick, Oct. 27, 1864. Mr. E. S. Pike. Please send me enough of white willow cuttings from eight to ten inches long) planted about six and one half inches apart, for \ mile of fence, being five thousand cuttings, for which I promise to pay you or bearer forty dollars on their delivery at Natick during the spring of 1865.

<p>in replevin for machines, the plaintiffs claimed that the machines had been taken by the defendant on trial under an agreement that they should remain property of the plaintiffs till paid for, and that they never were paid for; the defendant claimed an absolute sale to himself by the plaintiffs. The evidence at the trial was, that the defendant took the machines on trial and said that if they answered his purpose he would keep and pay for them; that he never paid for them nor returned them; and that the plaintiffs demanded payment several times, but made no demand for a return of the machines till the commencement of the suit five months after their delivery. Held, that there was no evidence for the jury in support of the plaintiffs’ claim.</p>

<p>Contract to recover for printing four thousand copies of an “ Address to the people of Cambridge from the school committee, concerning a recent case of corporal punishment in the All-ston Grammar School.”</p> <p>At the trial in the superior court, before Wilkinson, J., without a jury, it appeared that the printing was done by the plaintiffs as alleged, at the request of the school committee, claiming to act on behalf of the city, and the price charged was fair and reasonable ; that the address, when printed, was circulated among the inhabitants of the city by the school committee, and afterwards, when tbe committee had made and printed their annual report, some of the printed copies of the address and report were united and made into one pamphlet, and circulated among the inhabitants by the committee in that condition ; and that the printing was charged to the city by direction of the committee, and a bill therefor, approved by the committee, was duly presented, and a demand for payment made upon and refused by the city. It was admitted that the school committee, in causing this printing to be done, acted in good faith, and that, if they were by law invested with discretionary power in the premises, they properly exercised it in the present case. The committee in their annual report referred to the address as part of the report.</p> <p>The judge found for the defendants, and reported the case to this court.</p>

<p>Contract against the executor of the will of John Q,. Thaxter, for money had and received by the testator to the plaintiff’s use. The case was referred to an auditor.</p> <p>At the hearing before the auditor, the plaintiff offered in evidence several accounts current rendered to him by J. Q,. Thaxter & Company, a firm of stockbrokers, of which the defendant’s testator was a member, and which had been employed by the plaintiff to buy and sell stock for him. These accounts showed a balance in favor of the plaintiff. The defendant objected to the admission of the accounts, on the ground of variance, inasmuch as they tended to show a contract between the plaintiff and J. Q,. Thaxter & Company, and not between the plaintiff and John Q,. Thaxter alone; but the auditor admitted them, and the plaintiff rested his case.</p> <p>On evidence put in by the defendant, the auditor found that Edward T. Bouvé was a copartner with Thaxter during a part of the time covered by said accounts, under the firm name of J. Q,. Thaxter & Company; that on February 1, 1864, the partnership was dissolved, and Bouvé withdrew, it being then agreed between Thaxter and Bouvé, that Thaxter should assume all the liabilities of the firm, and that Bouvé should receive nothing from the firm assets after that time, and should not be holden to pay any of the firm liabilities; and that all of the transactions set forth in said accounts during the existence of the firm, consisting of Thaxter and Bouvé, were with the firm, and all of the transactions set forth in the accounts before the establishment and after the dissolution of the firm were with Thaxter alone.</p> <p>Upon other evidence offered by the defendant and admitted against the objection of the plaintiff, the auditor found “that the plaintiff, the firm of Thaxter & Company, and John Richardson entered into an agreement to operate in the stock of the Malden and Melrose Horse Railway Company, for the purpose of getting 6 a corner,’ Thaxter & Company taking one half, and the plaintiff and Richardson each one quarter, interest in the operation; that the plan of operation was as follows: Thaxter & Company were to be the managers, and were to buy up a large quantity of the stock and control it in such a manner as to make a large demand for it, so that parties selling on time would be compelled to pay large differences ; Thaxter & Company were then to receive and make proposals and agreements thereon for the purchase of stock to be delivered at a future day, the parties agreeing to sell not then having the stock in possession or owning it, and then the sellers, when the day for delivery should arrive, would be compelled to pay such prices or differences as the parties to this combination might ask; the money to carry on the operation was to be furnished, and the profits or losses shaved or borne, by the parties in proportion to their respective interests ; that said stock at that time was of little, if any, intrinsic value, and was selling in the market for about five dollars per share; that Richardson paid in money from time to time, as called for, under the agreement, for carrying on the operations; that the plaintiff authorized Thaxter & Company to use his funds in their hands as far as necessary for the same purpose; ” that Thaxter did proceed to make purchases, and in so doing expended a large sum of money; “ that the operation in the Malden and Melrose stock was not successful; and that the money invested therein was substantially lost, and no settlement or adjustment thereof had ever been made.”</p> <p>The auditor on this evidence ruled that the “ agreement for operating was illegal and void ; that the parties did not become copartners by force of the agreement or any acts done in pursuance thereof; and that the defendant could not set up said agreement or the acts done under it in answer to the plaintiff’s claim.”</p> <p>It further appeared that the estate of the defendant’s testator was insolvent, and the defendant contended that this was a bar to the further prosecution of the action, but the auditor ruled otherwise.</p> <p>At the trial in the superior court, before Putnam, J., the auditor’s report was introduced in evidence, and the rulings of the auditor were sustained; and the judge also ruled that the insolvency of the estate of the defendant’s testator not only had no effect on the report of the auditor, but could have none on the verdict of the jury, and, after a verdict for the plaintiff for the full amount claimed, reported the case for the determination of this court.</p>

Contract for breach of an agreement under seal, dated October 10, 1865, by and between the plaintiff and the de-. fendant, of which the following was the material part: 11 Whereas the said Oscar N. Kenerson has this day conveyed to Eliza A. Henry, wife of said James' E. Henry, by two certain deeds of even date herewith, certain real estate situated in Cambridge: now therefore it is agreed that the said Henry will convey to said Kenerson, by good and sufficient deed of…

<p>Tort for breaking the plaintiff’s close in Newton. Trial and verdict for the defendant, in the superior court, before Brigham, J., who allowed a bill of exceptions of which the following are the material parts :</p> <p>The defendant, being the owner of the lots marked A and B on the subjoined plan, and also of the fee in the private way,</p> <p> </p> <p>and having formerly owned lots C and D, in 1860 conveyed to Henry A. Barker “ a certain piece of land,” being lot A, “bounded and described as follows: Commencing at a point two hundred and fifty feet torn Washington Street on the line of a private way, and running by the line of fence on said private way northerly to land of Allen, then by land of said Allen by the line of fence as it now stands to land now or formerly owned by Wentworth, and then turning and running westerly by land formerly owned by me to the place of beginning at said private way, and containing one and three fourths acres, more or less, and however else bounded and described.”</p> <p>In 1862, Barker conveyed to Harriet N. Judson, the defendant’s wife, “ a certain tract or parcel of land,” being lot A, “ containing one and three fourths of an acre, more or less, and bounded and described as follows: Commencing at a point two hundred and fifty feet northerly from Washington Street on the line of a private way, and running northerly on the line of said pri rate way until it comes to land owned by Allen, then turning and running in an easterly direction as the fence now stands to land now or formerly owned by Wentworth, and then turning and running southerly to land formerly owned by Chester Judson, and then turning and running westerly by said Judson’s land until it comes to the place of beginning at said private way, or however else bounded or described, and being same land conveyed to me by said Judson.”</p> <p>By deed dated April 13, 1866, the defendant and his wife “in her own right” conveyed to the plaintiff “ a certain parcel of land ” “ containing one and three quarters acres, more or less, and bounded and described as follows, viz.: Commencing at a point two hundred and fifty feet northwesterly from Washington Street, on the line of a private way, and running northwesterly by the line of fence on said way, over the brook running through said private way, and also by land of Crafts to land owned by the heirs of Allen, then turning and running easterly by the line of fence dividing this land from land of said heirs of Allen, as the fence now stands, and bounded by land of said heirs, until it comes to land of Wentworth, (now or formerly,) then turning and running in a southerly direction by said land formerly of Wentworth, to land of the said Needham, [lot D,] thence turning and running in a westerly direction by said Needham’s land and land of others, by the fence as it stands on a part of said dividing line, and continuing in the same direction until it comes to said private way or point of beginning, three hundred and nine feet, more or less. And we also convey to said grantee all our right and title to said private way, with a free and unobstructed way to and from Washington Street. Being the same land conveyed to said Harriet N. Judson by Henry A. Barker. To have and to hold the before granted premises, with all the privileges and appurtenances thereto belonging, to the said Needham and his heirs and assigns, to their own use and be-hoof forever. And we, the said grantors, for ourselves and our heirs, executors and administrators, do covenant with said grantee and his heirs and assigns, that said Harriet N. is lawfully seised in fee simple of said granted premises; that they are free from all incumbrances except any right I have given in the private way, which may appear of record; that we have good right to sell and convey the same to said grantee and his heirs and assigns forever, as aforesaid; and that we will, and our heirs, executors and administrators shall, warrant and defend the same to said grantee and his heirs and assigns forever, against the lawful claims and demands of all persons.”</p> <p>“ The plaintiff claimed that he purchased lot A of the defendant by the deed of April 13,1866, and the fee in the private way by the same deed ; that at the time of the purchase there was a fence standing on the lines a, c, g, and round to/and d, on the plan, and that the fence/ d extended would strike the line a g, or the private way at the point c; that there was no fence standing on the line d e on the plan, but a post in the fence a g, at the point c; that after the purchase the defendant went upon the plaintiff’s land on the line e 6, and dug post holes and attempted to erect a fence on that line; that the defendant then took up the fence a c, and placed it in the line a b, claiming the line a b as the true line of the private way; that the defendant took all the loam from the private way to the depth of one and two feet across the way for seventy-five feet from the point b, towards Washington Street, and from the sides of the way for the remaining one hundred and fifty feet, leaving in the centre a space only ten feet wide; that he removed all of the loam to the defendant’s lot by the side of the way; and that the point if beginning as stated in the deed, for the boundary of the plaintiff’s lot, was at the point c described in the deed as two hundred and fifty feet from Washington Street.</p> <p>« The plaintiff asked the court to rule: 1. That by the deeds of the defendant to Barker and of Barker to the defendant’s wife, and the deed of the defendant and his wife to the plaintiff the fee of the private way was in the plaintiff. 2. That paroi evidence be admitted to explain the latent ambiguity in the deed. 3. That the point of departure in describing the plaintiff’s land, in the deed to him, was at the point c, or at a point in the private way on the line of the fence as it stood on that side of the private way when the deed was made, where the line f d, or the fence standing at the back of Needham and Bacon’s land produced in the same direction would strike the way, and not at a point two hundred and fifty feet from Washington Street. 4. That the building of the new fence a b, out into the private way, beyond the line of the old fence standing when the deed was made, was a trespass on the rights of the plaintiff for which damages would lie. 5. That digging the post holes on the line e b, below the line made by extending the fence across the back part of Needham and Bacon’s land to meet the private way, was a trespass for which damages would lie. 6. That the taking of the soil from the sides of the way and across the lower part of the way, and removing the same, was a trespass on the plaintiff’s right of way for which damages would lie.</p> <p>“ All of which requests for rulings were refused, and the following rulings given : 1. That for the purpose of ascertaining the boundaries of the plaintiff’s land, the point two hundred and fifty feet distant from the actual line of Washington Street, and in the line of a certain private way, is to be taken as the point of beginning, and in running the last line indicated in the deed of Harriet N. Judson to him, the line, after leaving the fence as it stood on a part of the dividing line between the land described in the deed and the land of others, is to be determined by the point of beginning and to be directed to that point, notwithstanding the line thus directed would not be in the same direction as that of the line along the Needham and Bacon land. 2. That the plaintiff was not entitled to the fee in the private way, and only to a free and unobstructed way to and from Washington Street. On the rulings and the evidence the jury found for the defendant, and the plaintiff alleged exceptions.”</p>

Tort for cutting down and removing a gate from the end of a passageway on the plaintiff’s land in Charlestown.

<p>A promissory note and a mortgage made by A. were indorsed and assigned by the-mortgagee to a guardian of infants. On the death of this guardian, A. was appointed his executor and also became guardian in his stead. On A.’s death, his widow was appointed his administratrix, and B. succeeded him as guardian. A.’s widow delivered the note to B., who returned it to her, claiming that it was paid, and she proceeded to contract for the sale of the lands included in the mortgage, B. brought suit on A.’s bond as guardian, and obtained judgment for the whole amount due, not deducting the mortgage and note as part of the wards' estate. The sureties on the bond paid the judgment, and C., who had succeeded A.’s widow in the administration of A.’s estate, assigned t* them this note and mortgage. Held, that the note and mortgage must be taken to be discharged, and therefore that C. had no authority to transfer them to the sureties.</p>

<p>Bill in equity to set aside a conveyance of real estate made by the defendant, as guardian of the minor children of George A. Walker. The case was heard before Wells, J., who reported it substantially as follows :</p> <p>George A. Walker died seised of the real estate in question, and the defendant, his widow, was appointed in March 1854 guardian of his three children, of whom the plaintiff was the eldest, and all of whom were at that time minors. No inventory was ever returned by her, and no account of guardianship ever rendered. In April 1861, the defendant, as guardian, obtained a license from the probate court to sell real estate of her wards for the purpose of applying the proceeds thereof as far as necessary for their maintenance, and of investing the balance, if any, until wanted for such maintenance. Notice having been given, the real estate was sold at auction May 13, 1861, and a conveyance thereof made to Moses G. Cobb, dated May 13, 1861, and purporting to be for the consideration of $13,812.50. By deed of the same date Cobb conveyed the same premises to the defendant, for the consideration named of $27,625. Subsequently the defendant mortgaged the premises for $10,000 to Samuel A. Shurtleff, which sum she claimed to have expended in improvement and repairs upon the premises, and in support and education of the children. It was conceded that the mortgagee was a bond fide purchaser to the extent of the mortgage, and that any decree in favor of the plaintiff should extend only to the title subject to that mortgage.</p> <p>It appeared that Cobb was an attorney at law, and was employed by the defendant to obtain the license and conduct the business for her of making sale of the real estate; that he attended at the time and place of sale for the latter purpose, the defendant not being present; that the sale took place at his office in Boston; that few or no persons were present except himself and the auctioneer; that he bid off the property at the sum of $13,812.50, with the understanding, as he testified, that the defendant would take it off his hands; and that he paid no money on account of his said purchase, and received none from the defendant for the reconveyance to her.</p> <p>The plaintiff became of full age August 13,1865, and this bill was filed November 28,1866. The defendant offered evidence to prove that all the personal property which George A. Walker left did not exceed one hundred and fifty dollars; that the annual rents of the real estate did not exceed three hundred and sixty dollars; that the defendant supported her family by taking boarders and sewing, and supported, clothed and educated the plaintiff until his majority; that she never had any understanding, directly or indirectly, with Cobb that he should purchase the estate for himself or for her; nor had she ever any knowledge in regard to his becoming the purchaser, until after the sale had taken place; that she had no knowledge of what transpired at the sale until she was informed by Cobb that he was the purchaser; that after the sale, Cobb applied to purchase her dower in the premises, and, on her declining to sell it, requested her to purchase the estate from him, which she did, after considerable negotiation; that she employed Cobb to return her account as guardian, and supposed that he had done so; that her claim for the support and education of her wards exceeded the amount for which the estate was sold ; and that for the purpose of improving the estate she had borrowed ten thousand dollars, and expended that sum, with moneys of her own, amounting to about five thousand dollars, in constructing and altering the buildings on the estate.</p> <p>But the judge, (being of opinion that, upon the undisputed facts in the case, the plaintiff was entitled to a decree avoiding the conveyance, except as to the mortgage) declined to receive the evidence; and reported the case for the determination of the full court; if it should be of opinion that the facts so offered in proof would change the result, the case to stand for further hearing thereon; otherwise such decree to be entered, or order for the further disposition of the case, as the court might determine. The question was also submitted whether the defendant was entitled to her dower, or an allowance therefor, in case the conveyances by and to her should be held invalid.</p>

<p>On a question of the injury to an estate by taking part of it to widen a street, witnesses who testify that they have knowledge of the value of land in the town, some of them from sales or purchases by themselves, and some of them from knowing of sales by others, may be allowed to testify, in the absence of evidence that they are not properly qualified, whether the estate was injured or improved in value by the taking, though they have no actual knowledge of any other case where land has been taken for such purpose, and though they say on cross-examination that they have no special knowledge of the value of land more than the citizens generally.</p> <p>On a question of the injury to an estate by widening a street in front of it, a witness testified that the widening would improve the estate. ReW, that the refusal to allow him to be asked, on cross-examination, what would induce him to consent to have the street widened in front of his own house in another part of the town, formed no ground of exception.</p>

Writ of entry against John T. Coffin and the heirs of John C. Parkinson, to recover a lot of land in Brighton. Coffin was defaulted.

<p>Bill in equity to redeem a lot of land in Lowell from a mortgage; filed against William P. Dean on December 27,1861. Subsequently, by an amendment and supplemental bill, Susan Dean and Nathan Crosby were joined as defendants. The case was referred to a master, and, on the pleadings and his report, was reserved by Wells, J., for the determination of the full court. The material facts were as follows :</p> <p>James Adams, being the owner of the lot in question, mortgaged it to William P. Dean on October 4, 1852, and on August 25,1854, conveyed it, subject to the mortgage, to Timothy D. Taylor; and it was sold on execution against Taylor, and conveyed by the sheriff’s deed to the plaintiff, on July 27, 1861 The mortgage was recorded in the registry of deeds at Cam bridge on October 11,1852. At that time there was but one registry of deeds for the county of Middlesex, but by the St. of 1855, c. 79, a registry of deeds for the northern district of the county, including Lowell, was established at Lowell, and by the St. of 1856, c. 254, it was enacted that all instruments re lating to real estate situated within the northern district, required by law to be recorded in a registry of deeds, should be recorded in the registry of the northern district, and that such registration thereof should be effectual and sufficient for all purposes, so far as the place of registration was concerned.</p> <p>William P. Dean made an entry for foreclosure, in presence of witnesses, and took possession of the land on November 25, 1857, and had the certificate of entry put on record in the reg istry for the northern district of Middlesex on the 27th of the same month; and there was a note of reference in the margin of the record in the Cambridge registry of the mortgage, to the record of this certificate, but there was evidence tending to show that such note was not made within thirty days after the putting on record of the certificate, and it appeared that, when pa pers were left in the Cambridge registry, they were not actually spread upon the record within thirty days after they were left.</p> <p>William P. Dean assigned his mortgage to his mother, Susan Dean, October 4, 1859, and on December 21,1861, Susan Dean conveyed the land covered by the mortgage to Nathan Crosby, by a quitclaim deed.</p> <p>After the assignment of the mortgage to Susan Dean, but before her conveyance to Crosby, she made two agreements concerning the land, one with Isaac Pitman and the other with Samuel Fay. The agreement with Pitman was dated November 13, 1860, and in it she covenanted that, in the event that the mortgaged premises should not be redeemed, and the foreclosure should become complete, and Pitman should before May 27, 1861, pay to her the sum of $675, (deducting therefrom any rents received by her between the date of the agreement and such payment, less her expenses for the care of the premises,) then she would release and quitclaim to Pitman, or such person as he should direct, “ the said mortgaged real estate,” and all her right, title, interest and estate therein. The amount of principal and interest due on the mortgage on May 27, 1861, was $675. The agreement with Fay was dated May 24, 1861, and in it she covenanted that if Fay should, before November 27, 1861, pay to her the sum of $691.50, (deducting therefrom any rents received by her between the date of the agreement and such payment, less her expenses for the care of the premises,) then she would release and quitclaim to Fay, oi such person as he should in writing direct, “ the said mortgaged real estate,” and all her right, title, interest and estate therein. The amount of principal and interest due on the mortgage ob November 27, 1861, was $691.50. This agreement was assigned by Fay to James W. Rollins. Neither Pitman, Fay nor Rollins ever tendered or paid anything under either of these agreements.</p> <p>Timothy D. Taylor was examined as a witness, and testified that there was an attachment on the land at the time of the entry to foreclose; that the entry was made by William P, Dean at his suggestion, and for the purpose of preventing the attaching creditor from acquiring title; and that he procured the agreements between Susan Dean and Pitman and Fay to be made for his own benefit, using their names instead of his own.</p> <p>There was some evidence that Crosby, at the time of his purchase from Susan Dean, knew of her agreements with Pitman and Fay.</p>

<p>For the introduction in evidence of a copy from the registry of a deed purporting to be executed under the authority of a corporation by its president, it is not necessary to prove that the president had authority to execute the deed.</p> <p>On a petition for partition of a parcel of land “ being lot four on plan drawn by W., dated September 12,1848, and recorded,” and described by metes and bounds, the petitioner, to show title, may put in evidence the record of a judgment and possession given on a writ of entry, brought by a party under whom he claims title, to recover a parcel of land u being lot four on plan drawn by W., dated September 12, 1848,” and described by substantially the same metes and bounds on three sides as the parcel of which partition is sought, though the boundary on the remaining side is wholly omitted.</p>

<p>Tort to recover the amount of damages recovered against the plaintiffs by Garvin C. Bingham, in a suit for injuries received by him on June 6, 1866, by reason of a defect in a bridge which crossed a canal and formed part of a highway, called Central Street, in Woburn. At the trial, before Foster, J., the material facts appeared as follows :</p> <p>Bingham, travelling on the highway, was injured by being thrown from his carriage by reason of a defect in the bridge; sued the plaintiffs, and recovered $6500 damages. The defendant had notice of the pendency of the suit, and was requested to assume the defence thereof, but did not do so. The plaintiffs, in the present action, contended that the canal was made after the highway had been laid out, and that the defendant was bound to keep the bridge in repair.</p> <p>On the question of the priority of the highway to the canal, the evidence was as follows : One witness, who had been a selectman of the town, testified that he had lived in Woburn since 1827, and known Central Street as a highway for more than forty years; that the canal was dug in 1833 or 1835 by the Woburn Agricultural Company, and the bridge must have been built when the canal was dug; that he knew the season when the bridge was built; and that it was built under the direction of the company. On cross-examination he said that he only knew from hearsay who built the bridge, but that he knew of its being built and since then being used as part of the road; that there were no records of the laying out of Central Street; that he had only known the road since 1827; and that there was no great amount of travel over it when he first knew it. Another witness testified that he was fifty-five years old, and had known the way ever since he could remember anything, and as a common county road; that the ground was broken for the canal on August 30,1836; that he had no particular recollection about the bridge, but that the canal was dug before cold weather, and undoubtedly the bridge was built in the fall of 1836.</p> <p>The defendant was in possession of a mill on the canal about a third of a mile from the bridge, but did not own the land adjoining the bridge, nor the fee in the canal. The mill was conveyed on October 22, 1838, by the Woburn Agricultura Company to Samuel Sweetser, by a quitclaim deed containing a provision that the grantee, his heirs and assigns, should be entitled to the first drought of water from the canal for the use of the mill “ equal to a six horse power on a common fifteen foot breast wheel,” and should be “ subject to one third of the expense of any repairs that may be necessary on the canal.” Sweetser conveyed the mill to William C. Choate, his assignee in bankruptcy, who gave a deed thereof to Jacob Richardson, This deed purported to be given in pursuance of an order of court made under the United States bankrupt act of 1841; but in the order of court no time and place of sale were fixed, and the blanks for fixing them were left unfilled. Richardson conveyed his title to the defendant by a quitclaim deed containing the same provision, as to the use of the water and the repairs of the canal, which was contained in the deed from the Woburn Agricultural Company to Sweetser.</p> <p>On the same 22d of October 1838, the Woburn Agricultural Company conveyed a lot of land bordering on the canal, with another mill thereon, to John Bigelow, by deed containing a provision that the mill was entitled “ to all the water flowing through the canal” except that reserved for the mill sold to Sweetser, and that the proprietors of the premises should bear “ the proportion of two thirds in all necessary repairs upon the canal.” Bigelow conveyed the premises to Stephen M. Allen, and Allen by deed released to the defendant all his right to draw and use water from the canal.</p> <p>The plaintiffs offered evidence tending to show that repairs were made on the bridge under the direction of Thomas Henshaw, the defendant’s son, both before and after the accident. The defendant objected to all this evidence, and particularly to to any evidence as to repairs after the accident, but it was admitted.</p> <p>The defendant also introduced evidence as to the repairing of the bridge, and it appeared from the cross-examination of his witnesses that Thomas Henshaw was a member of the defendant’s firm and had charge of the mill; that he made repairs on the canal, and that on the day after the accident he repaired the bridge. The defendant himself testified that he never repaired the bridge before the accident, nor ever agreed to repair it or authorized any one to repair it; that the repairs on the bridge after the accident were made without his authority; and on cross-examination he stated that he never personally had anything to do with the repairs of the canal, and that his son Thomas repaired the canal and had general charge of the water power. He further testified that he was the sole owner of the mill, which he leased to his firm, and that there was an understanding, though no written agreement, between himself and his partners, that he should bear the expense of repairing the canal.</p> <p>On the cross-examination of the defendant, he objected to being compelled to state conversations with his counsel as to the suit by Bingham against the plaintiffs, on the ground that they were privileged communications; but the court overruled the objection.</p> <p>The defendant requested the court to rule that there was no evidence that the highway was laid out before the canal was made; that the defendant was not bound to repair the bridge unless by virtue of express agreement with the town; that the defendant’s deeds did not require him to repair the bridge; that the deed from Choate" passed no valid title, and therefore the clause therein as to repairs did not bind the defendant; that any repairs made on the bridge would not create the obligation claimed by the plaintiffs; that there was no sufficient evidence that Thomas Henshaw was a general agent; and that the plaintiffs, being in pari delicto, could not recover.</p> <p>The judge instructed the jury that the plaintiffs must satisfy them that the highway preceded the digging of the canal; that if the owner of a mill estate digs a canal across a previously existing highway, and builds a bridge over it, he is bound to keep the bridge in reasonable repair, and if he is negligent in the performance of the duty a party injured by reason of such negligence has his action for damages against him; and that, if the injuries are sustained under such circumstances that the town is also liable, and the injured party sees fit to elect to sue the town, the inhabitants of the town, by giving notice to the person who erected and is maintaining the bridge to come in and defend the action, can afterwards call upon him to indemnify them for what they have had to pay in damages and costs.</p> <p>He further instructed them that neither the mere ownership of the mill by the defendant, nor the mere transmission of the title to him, nor the mere use of the water running through the canal, nor the mere keeping in repair of the canal and its banks and the sluiceways, would subject the defendant to a legal liability to maintain the bridge; but that if the defendant took upon himself the possession and use of the canal, and of the bridge as part of it, and maintained and repaired the bridge, either personally or by his agent, then he affirmed the structure, and succeeded to the liability of the parties who put it there; that he was not bound by the acts of any of those who preceded him m the estate, nor was there any deed which rendered him bound to make repairs on the bridge; that his liability depended upon the question, whether he took upon himself the maintenance of the bridge by repairing it; and that, if the jury should find that he did repair this bridge before the date of the accident, that was evidence upon which they might infer that he did maintain it; that evidence of repairs made after the accident would not alone establish the liability of the defendant, but was to be considered in connection with the other evidence as to previous repairs, and the jury must be satisfied that, after he acquired title, and before the date of the accident, the defendant made repairs; and that, if Thomas Henshaw was the general agent of the defendant for the purpose of taking charge of the real estate and making repairs upon it and the canal, then the acts done by him were to be treated as the acts of the defendant.</p> <p>He further ruled that knowledge by the plaintiffs of the bad condition of the bridge, and their neglect to repair it, would not prevent them from recovering.</p> <p>The judge also directed the jury to answer the six following questions : Was the bridge built by the owners of the mills ? At the timé when it was built, was the highway which the canal traverses already in existence as a public way ? Did the0 defendant, after he purchased the estate, occupy and repair the canal ? Did he, after his purchase, make the repairs on the bridge before the date of the accident? Was the defendant negligent in regard to repairing the bridge so as to make it reasonably safe? Was the unsafe condition of the bridge the sole cause of the injury to Bingham ?</p> <p>The jury returned a verdict for the plaintiffs, and answered all the questions in the affirmative; and the case was reported for the revision of the full court.</p>

<p>Indictment on the Gen. Sts. c. 63, § 98, to recover for the use of the widow and children of Luther Bixby a fine by reason of the loss of his life from being run over by an engine and train of the defendants at a place in Ashland where their railroad pressed at grade a highway on which he was travelling with a horse and wagon; the death being averred to have been occasioned by reason of negligence of the defendants in not providing a gate, station agent or flagman at the crossing.</p> <p>Trial in the superior court, before Reed, J., who refused a request of the defendants for a ruling that the evidence would not sustain the indictment, and, after a verdict of guilty, reported the case for the revision of this court. The material facts appear in the opinion.</p>

<p>Indictment charging that James D. Martin, as cashier of the National Hide and Leather Bank, a banking association incorporated under the laws of the United States, embezzled the funds of the bank, and that Alexander C. Felton was an accessory thereto before the fact.</p> <p>The defendants filed separate pleas to the jurisdiction, alleging that the United States courts had exclusive cognizance of the offences charged in the indictment, as against both defendants, and that they both had, before the pendency of this indictment, been indicted in the United States circuit court. In the superior court, Ames, C. J., allowed Martin’s plea, but overruled the plea of Felton, who thereupon pleaded nolo contendere and alleged exceptions.</p>

<p>Indictment for larceny. Trial and conviction in the superior court of Suffolk, before Ames, C. J., to whose instructions the defendant alleged exceptions, the material part of which is stated in the opinion.</p>

<p>An indictment for forging an instrument of the tenor following: u Boston, Aug. 6th, 1868. St. James Hotel. I hereby certify that L. W. Hinds & Co. have placed in my hotel a card of advertisements as per their agreement by contract. J. P. M. Stetson, Proprietor,” without any averment of extrinsic matter to show that the instrument is adapted to be used for the purpose of fraud otherwise than appears on its face, is bad at common law.</p>

<p>On an indictment for breaking and entering the shop of “ W. R., the second of that name,” proof that the owner of the shop went only by the name of W. R., Junior, is no variance.</p> <p>On an indictment for larceny, the admission of evidence that several articles of the stolen property were found, nearly a year after the theft, in the house of the defendant’s father, where the defendant occasionally lived, some in the room occupied by a brother, who was jointly indicted with the defendant, and some in other parts of the premises, and a portion of the latter together with property of the defendant; and that articles like some of those "which were stolen were found, after the defendant’s arrest, in a room elsewhere occupied by him at the time of his arrest, and not occupied by any one else since; forms no ground of exception, if the evidence is submitted to the jury under full and adequate mstructions.</p>

Indictment on the Gen. Sts. c. 88, § 1, for presuming to be an innholder without being licensed.

Petition for a writ of habeas corpus, representing that the petitioner was illegally imprisoned and restrained of his liberty by Gideon Haynes, the warden of the state prison; heard by the chief justice, and reserved for the determinatio a of the full court, on facts agreed substantially as follows: The petitioner was in the custody of the warden, and confined in the state prison, from January 20, 1864, to the time of the hearing, February 24, 1869, (except as hereinafter…

Information filed November 11, 1868, by the attorney general at the relation of the treasurer of the New England branch of the American Freedmen’s Union Commission, setting forth that in 1861 Francis Jackson’s will was duly proved and allowed in the probate court for Suffolk, containing in its fourth article a bequest of $10,000 to William Lloyd Garrison, Edmund Quincy, Samuel May, Jr., Wendell Phillips, Charles K, Whipple, William I. Bowditch, Edmund Jackson, Lydia Maria…

Two actions, containing counts in tort and in contract, brought against “ the Marine National Bank of the city of New York, a corporation established by the laws of the United States in the city, county and state of New York,” to recover for the loss from the defendants’ bank in New York of a trunk with its contents, deposited with them by the plaintiffs in the first action, who were described in their writ as of the city, county and state of New York, and were the general…

<p>The provisions of the U. S. St. of 1866, c. 184, § 9, that any person who shall make, sign or issue any instrument without being duly stamped, with intent to evade the provisions of the act, shall be subject to a penalty, and that “ such instrument ” shall be deemed invalid and of no effect, do not, construed in connection with the other provisions of the statute, render instruments, not duly stamped at first, absolutely void, without proof that the stamp was omitted with intent to defraud the revenue.</p> <p>The provision of the TJ. S. St. of 1866, c. 184, § 9, that no instrument, not duly stamped as required by law, shall be admitted or used in evidence in any court until a legal stamp shall have been affixed thereto, applies only to courts of the United States.</p>

Tort for injuries resulting to the plaintiff from the fall of ice and snow upon her from the roof of the defendants’ building. At the trial, before Hoar, J., the judge reserved for the full court the question whether the plaintiff could recover upon her offer of proof, the substance of which is stated in the opinion , if so, the case to stand for trial; otherwise, the plaintiff to become nonsuit.

<p>A broker whom A. employed tc sell land for a commission, and advised of his title to it, and that he “ could give a warranty deed of the same,” introduced B. as a person desirous of buying the land; and B. then bargained with A. for its purchase at a fixed price, but, before completing a valid contract, discovered a defect in A.’s title. A. thereupon agreed with B. to sell the land at public auction under a power by the due execution of which a valid title could be conveyed; and B. agreed to buy it at the auction, but did not do so, and it was bought at the auction by C. for a price larger than that fixed between A. and B. . Beld, that A. was not liable to the broker for commissions or services.</p>

Contract by a broker on a written agreement of the deendant concerning a sale or exchange of his house and land in North Weymouth; with a count for services rendered in negotiations for such a sale. Trial in the superior court, before Lord, J., who, after the plaintiff’s counsel had opened the case, ruled that his offer of proofs would not support the action, and directed a verdict for the defendant. The plaintiff alleged exceptions. The case is stated in the opinion.

<p>In an action in which perishable property is attached on mesne process, and sold under the Gen. Sts. c. 123, §§ 73 et seq., and the proceeds, less the necessary charges of the sale, are paid to the defendant upon his giving bond to dissolve the attachment, he cannot, upon prevailing in the action, recover the amount of those charges from the officer who attached and sold the property.</p>

Toet by the assignee of the joint and separate estates of Peter and Thomas Keogh, partners, in bankruptcy, for the conversion of their stock of goods mortgaged to the defendant, and bv him taken into possession and sold; sought to be maintained on the ground that the conveyance to the defendant was void under the provision of the bankrupt act, U. S. St. 1867, c. 176, § 35, printed in the margin.* Trial and verdict for the defendant, in the superior court, before Lord, J.,…

Contract on the St. of 1862, c. 176,* against the owners of the brig America, for pilotage; submitted to the judgment of the superior court, and of this court on appeal, upon facts agreed, of which the following is the material part: On March 27, 1867, the America, a British registered brig of three hundred tons burden, owned by British subjects, and not sailing under a coasting license, was off and bound into the port of Boston on a voyage from Halifax, Nova Scotia, under…

<p>Before the acts of congress making treasury notes a legal tender, two railroad corporations, A. and B., contracted jointly with a third, C.,to maintain and operate, exclusively, C.’s road, as C.’s agent; to pay or cause to be paid to C.’s treasurer, semiannually, for the use of C.’s stockholders, three dollars in coin for each and every share of C.’s capital stock; and to retain to their own use the income of the road, after applying so much as might be necessary to make those semiannual payments and defray the expenses of its maintenance and operation. Disputes afterwards arising whether the semiannual payments could be made in. treasury notes instead of coin, A.’s directors voted to “ authorize C.’s directors to make up their semiannual dividends at the rate of four dollars per share on the half of their capital stock representing the interest of A. in the contract; ” provided that C. should relieve A. of all liability, if any, under the contract, to pay in coin; and C.’s stockholders voted “that this company accept the proposition of A. to pay to this company the amount that would be required to increase the semiannual dividends on the half of our capital stock to the rate of four dollars per share,” and “ in consideration, this company relieve A. from all liability for the payment in coin of any dividend for which such payment may be made by A.” Held,, that these votes did not constitute an independent contract between C. and A.; nor enable C. to maintain thereon an action against A., in the absence of any concurrence of B. in the proposed modification of the original contract.</p>

<p>In an action of tort for trespass on the plaintiff’s close, in which the defendants set up, as a defence, a right of way across the close, the evidence showed that they owned a right to cross the close by a way which the plaintiff obstructed and shut up against their will and notwithstanding their resistance; that he afterwards gave them notice that they might cross by a different way, which they thereupon adopted and used for several years with his acquiescence, the old way remaining obstructed; and that, before obstructing the old way, he sued his grantor and recovered damages for breach of a covenant of full warranty in his deed of the close, in that the close was incumbered by a right of way across it of certain persons named and others not described by name in the suit. Held, that this evidence warranted a finding that there was a dedication of the new way by the plaintiff, in consideration of the surrender of the old one; and that it was immaterial that the plaintiff, when he acquired the close, had no knowledge or suspicion that any one owned a right of way across it, and never in terms recognized or acknowledged such a right.</p>

Contract on a policy of insurance upon the life of the plaintiff’s husband, Stephen Faunce (who died December 23, 1866); expressed to have been “ executed and delivered ” by the defendants September 1, 1866, “for the use of” the plaintiff.

Contract to recover the amount of a check drawn on the plaintiffs by John R. Williams, payable to the order of Hubbard Brothers, and by them indorsed and deposited with the defendants.

<p>A check on a bank, drawn in the usual form, payable to the bearer, was given by the drawer to a creditor under an agreement of the latter not to collect it immediately, and to give the drawer notice a day or two before wanting the money. A few days afterwards the notice was given, and the creditor replied that he had no funds in bank to meet the chgck. A little more than two years after the date of the check and of his agreement, the creditor, without repeating the notice, collected the check from the bank, the teller paying it without first ascertaining the state of the account of the drawer, whose balance on deposit was not sufficient to meet it, and had not varied materially for a month, nor been sufficient to meet it for three months. Held, that the check was not paid under any mistake of fact which would enable the bank to recover the amount of it from the creditor.</p>

<p>Ai* auctioneer, employed to sell real estate on terms which contemplate the payment of a deposit into his hands by the buyer at the time of the auction and before the completion of the sale by the delivery of the deed, may sue for such deposit in his own name whenever an action for it separate from the other purchase money may become needful.</p> <p>A house fitted only with cold water was advertised in the newspapers to be soldby auction, as fitted with “hot and cold water,” and subject to examination at any time before the sale, the keys, terms and further particulars to be obtained on application to the auctioneer. At the auction, the auctioneer read from a paper the terms of sale; announced that there was an error in the advertisement, as the house was not fitted with hot water; and then offered the house for bids, when it was bid in by a person who, having read the advertisement in the newspapers but not examined the house nor applied to the auctioneer, had come to the sale, but arrived after this announcement. The auctioneer then presented to the buyer the paper from which the terms of sale had been read; and the buyer signed it without fully reading it. At the top of this paper was pasted a copy of the advertisement, cut out of a newspaper, from which the words “hot and ” were erased. Then followed a recital that the buyer acknowledged purchasing “ the estate set forth in the above printed advertisement ” for a sum specified, and agreed to comply with “ the tormo of the sale as stated by the auctioneer and hereto annexed,” and, “ having paid into the auctioneer’s hands dollars, agreeably to said terms,” agreed “to forfeit said sum to the use of the seller” in ev°nt of failing to comply with the residue of said terms. It was to this recital that the buyer signed his name, and, at the time he did so, he did not observe or know of the erasure in the copy of the advertisement pasted above. Then followed, on the paper, a recital, which the seller signed, to the effect that he confirmed the sale. And below all was a “ memorandum of the terms and conditions of sale,” in which, after specifying how the sale might be altogether avoided in event of a defect of title, it was provided as follows: “ The purchase money to be paid in cash on delivery of the deed.” “ Two hundred dollars to be paid down into the hands of the auctioneer to bind the bargain, and to be forfeited to the use of the seller in case the purchaser shall fail to comply with the residue of the terms of sale, or ’refunded to him in case of a material defect in the title. But a forfeiture of said sum shall not release the purchaser from his liability under this contract.” “ Settlement to be made and deed to be delivered at office of auctioneer at or before the expiration of ten days.” After signing the paper, the buyer asked the auctioneer for the keys, to look at the house, saying that if the house was all right he would pay the two hundred dollars within an hour; and the auctioneer delivered them to him. On examining the house and discovering that it was not fitted with hot water, he returned the keys to the auctioneer, informed him that he should not take the house, and refused to pay the two hundred dollars; whereupon the auctioneer advertised the house for sale “ on the account of” said buyer, and sold it for thirty dollars more than the amount of his bid. Held, that in the absence of fraud the first buyer was bound by his contract. Held, also, that the auctioneer might maintain in his own name an action for the two hundred dollars, without regard to the extent of hia lien thereon, and without deduction on account of the surplus of thirty dollars realized at the second sale.</p>

<p>Proceedings in insolvency against J. S. on his petition do not necessarily include a limited partnership doing business under his name and in which he is the,general partner, but which is not mentioned in the petition, notice or assignment.</p>

<p>The clause of the U. S. St. of 1864, c. 173, § 97, which empowers persons who, before its enactment, had made contracts without other provision therein for the payment of duties subsequently imposed by law on articles to be delivered under them, to recover from the purchaser of the articles a sum equivalent to the duties, if the same had not been previously paid by him, is constitutional and valid, as applied to such articles delivered after its passage.</p> <p>The fact that for some weeks before the enactment of the TJ. S. St. of 1864, c. 173, § 97, the bill, including that section, was pending in congress and published in the newspapers, has no tendency to show that a person who, while it was pending, made a contract to deliver, at a time after the enactment, articles on which the statute imposed an additional duty, at a stipulated price and without other provision for the payment of the duty, cannot hold the purchaser of the articles liable for the amount of the duty, in accordance with that section; neither is his omission to add the amount of the duty to each invoice of the goods, as delivered, evidence of a waiver of his right to recover such amount under the statute, if he made formal claim for it on the purchaser before a final adjustment of their accounts under the contract; nor is the omission of such purchaser, with his knowledge, to secure reimbursement of such amount in or under contracts with other parties for a further sale of the articles, evidence of such a waiver.</p> <p>In the absence of any provision by congress to the contrary, a suit may be maintained in a state court on the TJ. S. St. of 1864, c. 173, § 97, to recover the amount of duties imposed by that statute on articles delivered after, under contracts made before, its enactment.</p>

Contract on a recognizance, with sureties, taken by a commissioner of the circuit court of the United States for the district of Massachusetts, of George and John J. Babson, debtors arrested on an execution issuing from that court upon a judgment therein rendered against them in favor of William L. Pierce and Edward T. Taylor, of Manchester, in the state and district of New Hampshire, formerly doing business under the firm of Pierce & Taylor.

<p>In a city where an ordinance provided that any person, having any cart or team of burden under his care, should, when travelling in a street, “ hold the reins of his horse or horses in his hand, or be in such a position or so near the team he is driving as to be able at all times to guide, restrain and govern the same,” a person, standing in a cart and driving the horse which drew it, and at the same time leading by a strap in his hand another horse drawing another cart, attempted (after taking precautions by looking and listening to ascertain if a train was approaching) to pass over the track of a railroad at a place where it crossed at grade the street on which he was travelling, when the rear horse, becoming restive, rushed forward, so that both of the horses and carts were on the track, and in this position they were struck and injured by a train. In an action against the railroad corporation for the injury, Held, that the question whether the traveller was in the exercise of due care at the time of the collision was for the jury.</p>

<p>Intoxicating liquors of domestic manufacture, not kept for illegal sale, are subject to taxation under the Gen. Sts. c. 11, § 2.</p>

<p>Conteact, by a benevolent institution incorporated within this Commonwealth by the St. of 1810, c. 94, to recover a tax of $620 assessed May 1, 1867, by the assessors of the defendants on real estate of the plaintiffs in Somerville, and paid under protest. Trial in the superior court,, before Lord, J., who reported the case substantially as follows, for the revision of this court.</p> <p>The parcel of taxed real estate adjoined other real estate of the plaintiffs occupied for the purposes of a hospital for the insane^ was traversed by four railroads ; and consisted of thirty-seven acres of upland, forty-six of marsh, and twenty-seven of flats, on no part of which, at the time of the assessment of the tax, was there any building, but on which since that time a lodge had been built at an entrance on the upland. This parcel was held by the plaintiffs as lessees from January 1849 till April 1867, when they bought it, entire, for $40,000.</p> <p>“ It appeared in evidence that the upland was used for farming pui-poses, and to some extent as a ground for the walking and recreation of those patients for whom it might be proper to work or go beyond the high fences or walls around the buildings; that the marsh was mowed, and the hay and other products of the land were consumed or used by the hospital; that the flats were claimed, as appurtenant to the upland, and to be occupied for purpose of light and air, to the water; that the whole preñases were bought and held to prevent too near proximity of buildings and use which might be deleterious to the hospital for the proper treatment of the insane, although no other use or occupation had been made of the same than above stated; and that no fences had been erected on the land taxed, except on that part abutting on the highway.</p> <p>“ Upon the foregoing evidence, offered by the plaintiffs, the judge ruled that the action could not be maintained, and directed the jury to find for the defendants.”</p>

<p>Contract to recover the amount of a tax assessed by the defendants for the year ending May 1, 1867, and paid by the plaintiff under protest; submitted to the judgment of the court on these facts agreed :</p> <p>“ The plaintiff resides in Cambridge, and carries on, at an office hired by him. for the purpose in Boston, the business of selling internal revenue stamps procured by him of the government of the United States, under the U. S. St. of 1864, c. 173, § 161; and the sum of money sought to be recovered was assessed upon him as an assessment upon his stock in trade in said business during said year.”</p>

<p>Contract, begun March 14, 1868, on a bond of Laflin, with two sureties, dated July 1,1866, for the payment of $1000 to the plaintiff, on the following condition :</p> <p>“Whereas the said Leary has this day leased to the said Laflin a certain stable, building and land on Northampton Street in said Boston, reference being had to said lease of same date with these presents; Now, if the said Laflin, or his assigns or subtenants, for and during the term of said lease shall carry on the boarding and livery stable business at said demised premises, in the same manner and extent, and in as good, safe, careful and faithful a manner, satisfactory to all reasonable parties, as the said Leary has there carried on said business for the last five years, and, at the termination of said lease by time or otherwise, surrender to said Leary, or his representatives, the said demised, premises and good will, in as good repute and run of custom as now thereto pertain, all the above so far as may depend on said Laflin’s best exertions and care, then this obligation shall be null and void, otherwise to remain in full force and virtue, and to be. paid as liquidated damages.”</p> <p>At the trial in the superior court, before Devens, J., the plaintiff introduced the bond in evidence, and also the lease, which was of “ the good will and run of patronage of the stable,” as well as of the land and buildings, for the term of five years, an<f bore the same date with the bond; offered evidence tending to show a breach of the condition of the bond; and requested the judge to instruct the jury “ that, if they found that the conditions of the bond had been broken, they should return a verdict for the plaintiff to the amount of $1000, being the sum named in said bond as liquidated damages, and that this amount was to be considered as liquidated damages, and not as a penalty.”</p> <p>The judge refused so to instruct the jury, and ruled “ that the sum named in the bond was to be considered as a penalty, and not as liquidated damages, there being two conditions, a violation of either of which would entitle the plaintiff to maintain his action on the bond; first, that the lessee should carry on the business in the manner provided for in said bond, for the term of five years, and second, that he should surrender the premises and good will, at the termination of the lease, in as good repute and run of custom as then pertained thereto; and that the plaintiff was entitled to recover only such damages as he proved.”</p> <p>The jury found for the plaintiff, with nominal damages only; and he alleged exceptions.</p>

<p>Bill in equity, filed November 11,1867, by Sarah C. Sargent, by her guardian, and, upon her death pending the suit, prosecuted by the administrator of her estate, against the executor of the will of her husband Lucius M. Sargent, and the widow and children of his son Lucius M. Sargent, Jr. The case was reserved by Gray, J., for the determination of the full court upon the following facts:</p> <p>Sarah Dunn died in 1819, leaving two sons, Benjamin C. and James 0., and two daughters, Mrs. Sarah C. Sargent and Mrs. Anna J. Phillips; and by her will, which was duly proved, gave one fourth of the residue of her estate to Job Prince, in trust, for the benefit of said Benjamin C. for life and at his death to his children, but if he should die without children then to such of his brothers and sisters as might survive him, and if either should die in his lifetime, leaving child or children, such child or children should take the parent’s share. Mrs. Sarah C. Sargent was married in 1827. Her husband was afterwards appointed trustee under her mother’s will, in place of Prince; held the trust fund until 1863, when Benjamin C. Dunn died without children; then paid two thirds thereof to James C. Dunn and Mrs. Phillips; retained the remaining third, being the portion of his wife (who was then insane, and so continued till her death), invested very nearly the whole of it in twenty interest bearing bonds of the United States, of the denomination of $1000 each ; received and used the income and interest thereof until he died in June 1867; and kept these bonds (as he kept his several other kinds of securities) in an envelope by themselves. The envelope containing them was labelled, in his handwriting, thus: “ Twenty 5-20 bonds U. S. $1000, referred to in the first clause of my will, and to be disposed of as therein directed. L. M. S.” The first clause of his will was as follows: “ I will and direct that twenty bonds of the United States, of one thousand dollars each, now in my possession, be sold as soon as may be after my decease, and the avails thereof paid over to the Massachusetts Hospital Life Insurance Co., in trust, to pay the interest thereof annually to Letitia S. Sargent, widow of Lucius M. Sargent, Jr., during her natural life, and the principal at her death to his children, share and share alike.”</p>

<p>Under a residuary devise and bequest in trust to divide the income of it equally among the testator’s children, and, in event of the death of either of them without issue, then equally among the survivors, “ but in case my said children die leaving issue, then the capital of such deceased child’s share shall be equally divided among such issue, share and share alike, to their heirs and assigns forever,’’ and not otherwise disposing of the principal of the fund, no part of the fund becomes distributable as undevised estate upon the death of one of the children without issue, but the rights and interests of the survivors and their issue in the capital as well as the income of the fund become proportionally enlarged.</p>

<p>Tort for the conversion of millinery. In the superior court, the case was referred to an auditor, who found that articles of millinery, of the value of §578, were taken from the plaintiff’s shop by Joseph Morss without the plaintiff’s authority or knowledge, and delivered to Mrs. Lurvey, who had reasonable cause to believe that they were so taken; that she had not paid for the goods, or any part of them; and that before beginning his action the plaintiff made demand for the goods on her and her husband.</p> <p>At the trial, before Devens, J., it was agreed that the plaintiff employed Morss in his shop ; and that, soon afterwards, the defendants were shown millinery there by Morss, and Mrs. Lurvey bought and paid for a few articles. The plaintiff introduced the report of the auditor, and other evidence which tended to show that the articles described in the writ were taken from his shop by Morss feloniously, and delivered to Mrs. Lurvey at the defendants’ house in Melrose ; and rested his case. Mi'. Lurvey then testified, in defence, without objection, that his wife “ had no business of her own, and never had had any; that she acted for years as his agent in obtaining most of the provisions for his family, and paid for them with his money, and always acted as his agent in getting the wearing apparel for herself and their daughter; that all of those goods charged in the writ which came into her possession she got by his order and direction; and that she obtained them for wearing apparel for herself and their daughter.”</p> <p>The judge instructed the jury “that this action might be maintained against the female defendant for the value of the articles in question, if they were stolen by Morss from the plaintiff, and were delivered to the possession of the female defendant, the husband not being present, and were demanded of her and her husband before the writ was served, and in the absence of any proof that they had passed out of the possession and control of the wife at the time of the demand; even if the husband ordered the wife to obtain them as wearing apparel for herself and daughter, and the articles were wearing apparel.” The jury found for the plaintiff; and Mrs. Lurvey alleged exceptions.</p>

<p>A. agreed in writing, that, whereas B. had bought of him twenty shares of stock for a certain sum, he in consideration thereof would “ purchase back said shares, if B. so elects, in one year from this date, and upon the written request from B. and reassignment of said shares,” and would u pay B. therefor the said sum and interest,” “ to be paid B. as aforesaid, provided he shall reassign to me said stock within one year as aforesaid, and not otherwise.” Held, that it was at B.’s option, to be exercised within a year, whether to hold the shares as purchaser, or merely as collateral security for the loan of the sum paid by him; thatthis option was sufficiently exercised by his causing a written notice, that he requested A. to buy back the shares according to the terms of the agreement, to be left at A.’s house, eighteen days before the end of the year, after vainly endeavoring to find A. at his place of business, and understanding that he had left the state, which request was not revoked before the year ended; that the giving back of the shares and repayment of the loan were to be simultaneous acts, and B. was not bound to convey the stock out of his reach before receiving repayment; and that, in a suit on the agreement, brought after the end of the year, it was sufficient to entitle B, to recover in damages the full amount stipulated in the agreement to be paid by A., with interest, if, after proving the notice, and the neglect of A. to comply with it, it appeared that at and from the time of giving the notice B. continued to have the shares in his control and possession, and to be willing and ready to transfer them duly to A. before taking judgment.</p>

<p>Tort for the conversion of an iron hammer. At the trial in the superior court, before Lord, J., the plaintiff testified that be bought the hammer, with thirty tons of old iron, from a junk-dealer ; and on cross-examination testified further “ that he took a bill of sale of the whole property so purchased, and that he then had that bill of sale, that he did n’t know whether it was a separate paper, but believed that it [the hammer] was put down under the other articles.” The defendant then requested the plaintiff to produce this bill at the opening of the court the next morning. The plaintiff, at the time requested, without firs! producing the bill, called Melchisedec Kyle as a witness, who testified that he sold the hammer to the plaintiff, and gave him a separate bill of sale of it, immediately after delivering a large lot of iron previously sold to him. The defendant then renewed his request for the production of the bill, and objected to paroi evidence of its contents. The plaintiff, however, giving as a reason for not producing it, that it was at his house some miles off in the country, and proposing to show that it was in fact not a bill of sale, but a bill of parcels, and therefore he was not under obligation to produce it, was allowed by the judge “ to inquire of the witness what the nature of the paper was, for the purpose of showing whether it was a formal bill of sale or not,” and was further allowed to testify, against the defendant’s objection, “ that he did not remember what the form of it was, that he believed it was an acknowledgment of the payment of the amount of the purchase money, and that he could not give the words.” The jury found for the plaintiff; and the defendant alleged exceptions.</p>

Tort for libel, with two counts for the same cause of action , the first count alleging “ that the defendant publicly, falsely and maliciously accused the plaintiff of gross fraud in the matter of a fraudulent transaction with one Samuel Tompson with reference to an estate on Marshall Street in Somerville, by writing a false and scandalous libel of and concerning the plaintiff in words substantially as follows, to wit: ‘ 11 Court Street. March 11, 1867.

<p>In an action for breach of a promise of marriage, if the judge, in charging the jury, advisee them, without omission or indistinctness, of all the elements proper for their consideration in assessing damages if they shall find for the plaintiff, his refusal to give greater prominence to a particular part of the case by adding a special instruction, at the request of the defendant, that they are to consider the pecuniary means of both parties, (of which evidence has been given,) affords no ground of exception.</p> <p>In assessing damages in an action for breach of a promise of marriage, the length of time during which the engagement subsisted is an element for the consideration of the jury.</p> <p>On the trial of an action for breach of a promise of marriage, in which the only affirmative defence relied on is, that the contract was broken by mutual consent, the defendant has no ground of exception if the judge refuses to instruct the jury that they are the judges of what facts constitute a good and sufficient cause for a party’s not fulfilling a promise to many.</p>

Contract on an award dated March 17, 1868, made by two arbitrators, against the dissent of a third, in pursuance of a submission under the Gen. Sts. c. 147, dated October 4, 1867, to two arbitrators named “and one other disinterested impartial man to be agreed upon by said ” two. The award was accepted, and judgment ordered thereon, in the superior court, against objections of the defendant, who appealed. The case is stated in the opinion.

<p>An infant is not liable for the malicious prosecution of a suit during his infancy, in hia name, bj' his next friend, which was brought without his knowledge or authority; even if he expressly assented to the suit after he had knowledge of it.</p>

Two bills in equity to compel the surrender or cancellation of two overdue promissory notes, dated in 1861, and signed by the plaintiffs respectively, with Joseph Atwood, each note for the payment by the promisors, jointly and severally, to the order of the defendants, of $1340, in equal semiannual instalments of $67, with interest; and of two mortgages of real estate, containing the usual power of sale clauses, given by the plaintiffs, respectively, to the defendants, to…

Tort for the conversion of a coat; submitted to the determination of the superior court, and, on appeal, of this court, upon these facts agreed: “ The plaintiff and the defendant, on the Lord’s day, made a trade, whereby the defendant sold the plaintiff a set of jewelry, and the plaintiff sold the defendant a coat of the value of twenty-three dollars, which the defendant received in part exchange for the jewelry.

<p>Bill in equity inserted in an original writ of summons and attachment, alleging that the defendants, doing business at Boston in this Commonwealth, under the firm of William Has-kins & Son, “ entered into a contract at said Boston with, and there issued a letter of credit bearing date February 6,1868, addressed to,” the plaintiffs, a corporation established at Savannah in the state of Georgia, “whereby the defendants agreed to honor drafts drawn on them by James T. Paterson, at that time of said Savannah, to the amount of $5000 per month, at sight or on time; and that, relying on said agreement and letter of credit of said William Haskins & Son with and to the plaintiffs, the plaintiffs negotiated and received from said Paterson drafts drawn thereunder by said Paterson on said William Has-kins & Son, as follows : ” and then reciting two drafts dated in March 1868, for $2200 in all; three drafts dated in April 1868, for $3700 in all, two of them, dated respectively April 9 and April 28, for the sums respectively of $1000 and $1500, the first at sight and the second on thirty days; and one draft, dated May 15, for $1000.</p> <p>The bill further alleged that all of these drafts were honored by the defendants, except the two dated respectively April 9 and April 28; that these two drafts, drawn payable to the order of the drawer, and “ duly indorsed by him and by John N. Lewis, cashier of the plaintiffs, and made payable to the order of the Fourth National Bank of New York, were, on the days of their respective dates, placed in the mail at said Savannah, addressed to the said Fourth National Bank of New York; that the officers of the plaintiffs have been informed and believe that the mails which left Savannah on those days were robbed, and said drafts were lost, stolen or destroyed; that Paterson died on May 16, 1868, and on May 22 the plaintiffs applied for duplicates of the two drafts, to Edward A. Roher, who during the lifetime of Paterson had been his authorized attorney, and obtained from him duplicates of said two lost drafts, and sent the same to the said Fourth National Bank at New York by mail, which bank sent the same to the First National Bank at Boston to be collected of the defendants; ” but that the defendants, on the due presentment of these duplicates on May 27 and May 30, refused to accept or pay them, and suffered them to go to protest, and never afterwards paid them, but denied all liability.</p> <p>The bill then alleged the willingness of the plaintiffs to execute and give to the defendants such a bond of indemnity as to the court might seem meet, to protect the defendants against the risk of paying the two drafts a second time, and to enable them to recover of the estate of Paterson in such manner as circumstances might require; and prayed for a decree to compel the defendants to pay the amount of the drafts, with interest and costs of protest, on receiving such indemnity, and for general relief. An affidavit of the loss was annexed.</p> <p>The defendants filed a demurrer, denying jurisdiction for want of equity; and the case was thereupon reserved by Ames, J., for the determination of' the full court.</p>

<p>No exception to the allowance, under the St. of 1865, c. 179, of an amendment changing a suit at law into a proceeding in equity, or vice versa, lies on the ground of taches in the plaintiff, or on the ground that, if the amendment were not granted, the suit or proceeding must he dismissed, and the bringing of a new proceeding or suit would be barred by the statute of limitations.</p> <p>The St. of 1865, c. 179, authorizing this court and the superior court, in their discretion, to allow amendments changing certain suits at law into proceedings in equity, and vice versa, applies to suits and proceedings pending at the time of its enactment.</p>

<p>Evidence that, shortly after the directors of a corporation had voted to authorize one of tneir number to contract for the manufacture of twenty-five machines on the best terms which he could obtain, and take such steps to perfect and introduce machines of that kind as he might think best, he contracted in his own name, for the manufacture of patterns for four machines, with a person who had worked for him before, and who charged them to him on his books; that, after finishing them, the workman presented his bill to the director individually, who told him to make it out against the corporation; and that, on doing so, and presenting it to the treasurer of the corporation, the treasurer assured him that the corporation would settle it; is sufficient to warrant a finding that the work was done for the corporation, under the direction of its agents, acting within the scope of their authority, either as having general charge of its affairs or under the vote of the directors.</p> <p>The making of the certificate required by the Gen. Sts. c. 61, § 8, is not a condition precedent to the existence of a corporation under that chapter; nor can a failure to make such certificate be set up by such a corporation in defence against a creditor.</p>

<p>A bill in equity, under the St. of 1862, c. 218, to charge persons with individual liability as members or stockholders, for the debt of a manufacturing corporation, sufficiently describes such a holding of the stock as would bring the holders within the provisions of the statute, by alleging that the defendants were “members of and stockholders in said corporation, holding the stock of the same undivided;” and need not allege the par value of shares in the capital stock.</p> <p>A corporation exists under the Gen. Sts. c. 61, § 1, so as to be able to contract debts, as soon as its first meeting has been held and its officers have been chosen, if not immediately upon the signing of the articles of association.</p> <p>A corporation organized under the Gen. Sts. c. 61, for the purpose, specified in the article? of association, of “ refining and preparing for use oil, coal and other minerals," is a manufacturing corporation, within the meaning of the St. of 1862, c. 218, without regard t« what other purposes are also specified.</p> <p>In an action on an account annexed, against a manufacturing corporation under the Gen Sts. c. 61, begun more than a year after the signing of the articles of association, and nearly a year after the first meeting of the signers and their choice of officers, the corporation filed an affidavit of merits and an answer, and afterwards submitted to a default and judgment thereon. In a suit in equity brought by the creditor, under the St. of 1862, c. 218 § 4, to recover from the stockholders individually the amount of this judgment, Held that the judgment, if not conclusive, was at least primé facie evidence that the account was one on which the corporation was liable; even though the account bore date three days before said first meeting.</p> <p>Until the division into shares of the capital stock fixed and limited by the articles of association of a corporation organized under the Gen. Sts. c. 61, the associated members of the corporation hold the whole capital stock in common; and by reason of such a holding may be individually liable under the St. of 1862, c. 218, for the debts of a manufacturing corporation.</p>

<p>xiie right to vote, at meetings of the stockholders of a corporation, on shares in its capital stock held on a trust “ to hold for the benefit of the corporation,” is suspended while they are so held.</p> <p>Mandamus will lie upon the petition of a private manufacturing corporation, to compel the surrender to its lawful officers of books and papers pertaining to their offices and held by persons actually but unlawfully exercising the functions of those offices under a claim of right, having usurped them under the choice of a minority of the stockholders by the use of illegal votes.</p>

Contract by a deputy sheriff against Chamberlin and Warren N. Abbott, for an unpaid balance of the purchase money of an equity of redemption sold on execution.

<p>An officer and appraisers, charged with the duty of levying execution on a small parcel of land with a dwelling-house thereon, recited in their return and certificate that the judgment debtor claimed an estate of homestead, and the estate could not be divided without damage; and set off eight undivided eighteenth parts of the estate to the debtor as a homestead, and five undivided eighteenth parts to the creditor in satisfaction of the execution. The debtor had no estate of homestead in the land. Held, notwithstanding, that the levy on the five eighteenths was valid.</p>

<p>Bill of interpleader against Grace Fiske, Abby Fiske, Peter Cutter, Samuel Easter and Elijah Brown, praying that the defendants mignt interplead and that the court would decree to which of them the plaintiff should pay a sum of $1784 in his hands. The case was submitted on an agreed statement of facts, substantially as follows :</p> <p>On June 13, 1862, Brown, being the owner of certain real estate in Waltham, mortgaged the same to Lewis Colby, to secure the payment of a promissory note for $3000, the mortgage deed containing a power of sale in the usual form ; a few days afterwards made a second mortgage of the same real estate to the defendants Grace Fiske and Abby Fiske; and on September 30,1862, made a third mortgage of the same real estate to the defendant Easter, to secure the payment of $1400, according to the tenor of six promissory notes of that date, given by Brown to Easter, four for $250 and two for $200 each, payable at different times. Easter duly sold and indorsed one of these mortgage notes, before its maturity, to the Taunton Oil Cloth Company, in payment for merchandise, but without assigning the mortgage; the company brought a suit thereon against Brown and Easter, and recovered judgment; and all the right in equity which Brown had, liable to be taken on execution, in the mortgaged premises, was duly taken on execution in favor of the company, sold in 1863 by the sheriff, and purchased by and conveyed to Cutter.</p> <p>In 1864, Colby assigned his mortgage to the plaintiff, and in 1865, default having been made in the performance of the condition of the mortgage, the plaintiff sold and conveyed the mortgaged premises, under the power of sale, for $5000; and, after retaining the amount of his debt, with costs and charges, he had remaining in his hands a balance of $1784, which balance he was ready and willing to pay to the party entitled thereto.</p> <p>Grace Fiske and Abby Fiske withdrew and abandoned all claim to this balance ; and it was agreed that, if the judgment of the court, as between Brown and Cutter, should be in favor of Cutter, Easter would consent that the balance should be paid to Cutter.</p>

Writ of entry to recover real estate in Chelsea. Plea, nul disseisin. The case was submitted to the superior court on an agreed statement of facts, of which the following is all that is material: The demandant was the widow of John Burns, who bought the demanded premises of Nathan Matthews on September 15, 1854, and at the same time gave a mortgage back to Matthews to secure payment of a part of the purchase money.

<p>The wife of the owner of an estate subject to a mortgage valid against her has no rights, as against her husband or his assignees in bankruptcy, in the proceeds of a sale of the estate made by the mortgagee for breach of condition and under a power in the mortgage deed.</p>

<p>Commutation of rent payable in iron is not to be presumed from the payment and receipt as rent of a sum of money equivalent to the value of the iron, though such payment has been uniform and has continued for more than twenty years.</p> <p>A lease for a thousand years made in 1817 reserved a yearly rent, payable in quarterly instalments, of ten tons of Russia Old Sables iron, and gave a right to the lessor to enter on failure to pay the rent fifteen days after demand. At the time of making the lease the parties agreed in writing that until 1840 a certain amount of gold bullion should be received in lieu of the iron as rent. On every quarter day from 1840 to the end of 1862, $212.50 were paid, and described in the receipts as rent due according to the conditions of the lease, but during this period the value of Russia Old Sables iron did not vary greatly torn $85.00 a ton. Said iron has not been imported into this country for many years. On December 12,1862, the lessor notified the lessee that the rent due on March 1, 1863, must be paid in iron. On a bill in equity by the lessee to enjoin the forfeiture of the lease for failure to pay the rent in iron, Beld, that the lessor had still the right to demand iron for rent, but that the lessee had the right to a longer notice of his intention to do so.</p>

<p>The interest of a lessor is not subject to a mechanics’ lien under the Gen. Sts. c. 150, for work done in altering the demised building by order of an undertenant of the lessee, although the lease contains a covenant by the lessee to make certain other alterations, and to keep the building in repair, and although the alterations made are apparent and the lessor lives in the immediate neighborhood.</p>

<p>Petition to the superior court to have the damages occasioned by taking the land of the petitioners to widen Hamilton Street, in Boston, assessed by a jury.</p> <p>The city council of Boston, on January 5, 1867, passed an order to widen Hamilton Street by taking part of the petitioners’ land, but did not award the petitioners any damages. The petitioners applied to the board of aldermen of Boston to assess and award damages for taking the land, but the board refused to award them any damages. Thereupon, before the expiration of a year from the taking of the land, the petitioners filed this petition. The city of Boston never entered upon the land so taken, nor did any. act thereon for the purpose of making a street over the land; and never in any way interfered with the possession of the land by the petitioners. Two years from the taking of the land for widening the street expired before the case was submitted to a jury.</p> <p>The case was submitted upon these facts, which were agreed ; if upon them the petitioners were entitled to have a jury assess their damages for the taking of their land, then the case to be sent to a jury ; but if the petitioners were not entitled to go to a jury, then the court to render such judgment as the law and the facts required. The superior court ordered judgment for the respondents, and the petitioners appealed.</p>

<p>A tender, to redeem land sold for taxes, of the amount paid at the tax sale, with interest and charges, is good, if made to the purchaser at the tax sale, although he has conveyed the land to a third party by a recorded deed; provided that the party making the tender has always remained in possession of the land, has had no claim to the land made on him before the time of his tender, and is not proved to have had actual knowledge of the conveyance.</p>

<p>Bill in equity by the widow of Timothy Sullivan against the widow and children of Thomas Finnegan.</p> <p>The bill alleged that the plaintiff’s husband died seised of a lot of land with a dwelling-house thereon in South Boston, intestate and without children or kindred; that thereupon the plaintiff, as her husband’s heir, became seised of said lot of land, and continued to reside in the dwelling-house as she had been previously doing; that not long after her husband’s death she invited Thomas Finnegan and his wife, the defendant Mary Finnegan, to come and reside with her, offering to allow them the use of the house and the right to receive the rents of any part which should not be needed for the use of themselves and the plaintiff and should be let to others, on condition that the said Thomas and Mary would live in the house and provide for the plaintiff; that the said Thomas and Mary accepted the offer, and lived in the house, taking the rents and providing suitably for the plaintiff, till Thomas Finnegan died; that after his death his wife continued to live in the house, with the children, the other defendants, under the same agreement, taking the rents and providing for the plaintiff, till December 25,1867; that on that day and ever since, the defendant Mary Finnegan refused to provide for the plaintiff, and contended that the plaintiff's husband had made a deed to her husband of the land and dwelling-house, under which deed she and her children were the absolute owners of the premises, and denied that the plaintiff had any right, title or interest therein.</p> <p>The bill further alleged that the said deed, purporting to be made by the plaintiff’s husband to Thomas Finnegan, was a forgery; that the defendants refused to surrender possession of the portion of the premises occupied by them, and claimed to hold the same by virtue of the said deed; that thereby the plaintiff’s title to the premises was greatly impaired; but that the plaintiff was in possession of the premises, inasmuch as she occupied one room thereof and had “ free ingress and egress to and from said premises and full enjoyment of said room,” at the same time that the defendants had “ the possession, use and occupancy of the residue of said premises.”</p> <p>The bill finally alleged that the plaintiff was remediless at common law, and prayed that the said pretended deed might be cancelled and declared void; that the plaintiff might be decreed to have and enjoy full and quiet possession of the premises; and that the defendants might be ordered to vacate and deliver up the same.</p> <p>The defendants demurred, on the ground that the plaintiff had a full and adequate remedy at law, and the case was thereupon reserved by Gray, J., for the determination of the full court.</p>

<p>Contract. Writ dated June 15, 1867. The declaration alleged that on November 12,1866, the plaintiff was seised in fee simple of a parcel of land in Dorchester, which it described by metes and bounds, (one of its bounds being alleged as on Columbia Street, another as on the estate of William Wales, and the two others as on lots marked respectively Nos. 12 and 14 on a “ Plan of fourteen desirable house lots in Dorchester belonging to the estate of the late Thomas W. Gowen,”) “ said parcel of land being marked No. 13 ” on said plan; that on the day named he caused the lot to be put up at auction, by Samuel A. Walker, his auctioneer and agent, for several sale together with the thirteen other lots delineated on the plan, and subject to conditions of sale, which were recited in full; that “ on said day the defendant was the highest bidder therefor, and was declared to be the purchaser thereof for 9£ cents for each square foot of land in said lot, being $570 for the whole lot; ” and that on the same day the defendant signed a memorandum of sale," which was annexed to the declaration, and consisted of a recital of the obligations assumed, a table of the number and price of each lot and the name of the purchaser, a copy of the advertisement of the sale, and an exhibit of the conditions of sale. The following is an abstract of this memorandum :</p> <p>“ We, whose names are hereto appended, hereby acknowledge ourselves to be purchasers of Eveline Gowan, guardian, and the heirs of Thomas Gowan, the lot or lots of land situate at the corner of Columbia and Green Streets in Dorchester, belonging to the estate of Thomas Gowan, deceased, and sold at auction by Samuel A. Walker, November 12,1866, viz: the lot or lots of land against which we have recorded our respective names, and at the prices recorded by the auctioneer, the said lots being delineated on a plan by L. Briggs and more particularly described in the advertisement hereto appended; and we hereby bind ourselves, our heirs and assigns, to comply with the terms and conditions of the sale hereto appended and declared by the aforesaid auctioneer at the time and place of sale.”</p> <p>No. of Lots. Names of Purchasers. Price.</p> <p>i. S. Klous. $1670.</p> <p>2. S. Klous. $ 620.</p> <p>8. S. Klous. 94 cts.</p> <p>4. S. Klous. 91</p> <p>[All the subsequent entries, for Nos. 5-14, were precisely like those for either No. 3 or No. 4, that for No. 13 being as follows :]</p> <p>13. | S. Klous. | 91 cts.</p> <p>The advertisement, which followed next upon the memorandum, was of an “ heirs’ and guardian’s sale of a house, shop and twelve house lots in Dorchester,” to be sold on the day named, by Samuel A. Walker, “ by order of the probate court and heirs of the late Thomas Gowan,” and described the estate for sale as “situate on the corner of Columbia and Green Streets,” and “ adjoining the greenhouse and nursery of William Wales,” and being in the vicinity of other estates named, as well as having convenient and speedy access to a horse railroad and to a particular station of a steam railroad which ran to Boston. The advertisement concluded: “ The heirs and guardian having determined to make the mighty West their future home, the whole property will positively be sold without reserve. For plans and further particulars inquire of the auctioneer. . Per order of Eveline Gowan, guardian, &c.”</p> <p>The conditions of sale were finally appended to the memorandum, as follows, and did not differ from the allegation thereof in the declaration:</p> <p>“ Conditions of Sale. Ten days will be allowed to examine the title, and the deeds will be delivered as soon as they are executed and received from the West, where a number of the heirs reside. $200 will be required upon the lot on which the house stands, and $100 on each of the remaining house lots, which is to be paid at the time of the sale. One half of the amount of each lot is to be paid in cash on delivery of the deed, and one half will be payable in three years from the day of sale, to be secured by a power of sale mortgage of the premises at six per cent, interest per annum, which is to be paid semiannually, or the purchasers may pay all cash if they so desire.”</p> <p>The declaration further alleged that the plaintiff on November 12,1866, and for a long time afterwards, “ was ready and willing to make to the defendant a good and sufficient deed of the premises, and to receive one half of the purchase money in . ash, and one half secured by a mortgage, or to receive all cash therefor, agreeably to the conditions of sale, and on December 3,1866, and on divers days and times before and after, tendered to the defendant a good and sufficient deed of conveyance of said land, conveying the same free from all incumbrances, and also prepared a mortgage deed, with power of sale, of said premises, for one half of the purchase money, and requested the defendant to execute said mortgage deed, and to pay him the other half of said purchase money, or to pay the purchase money aJ in cash, as said defendant pleased, but the defendant wholly refused so to do, and wholly refused to take a conveyance of said land or any part thereof, or to pay therefor in any manner whatever;” that then, on March 16, 1867, the plaintiff “ again offered said land for sale at public auction, and the same was then and there resold for a much less sum than' the price for which it had been sold to the defendant, to wit, for the sum of $300, whereby the plaintiff lost a large sum of money, to wit, $270,” and was also put to the expense of $100 for the charges attending the resale, of all which the defendant had notice, and which sums so lost to or expenses so incurred by the plaintiff the defendant was requested but refused to pay.</p> <p>A second count alleged “ that the plaintiff on November 12, 1866, being one of the heirs of Thomas W. Gowen, was seised in fee simple of a certain other parcel of land, being lot No. 13 on a Plan of fourteen desirable house lots in Dorchester, belonging to the estate of the late Thomas W. Gowen, situate in said Dorchester, and, being so seised thereof, on the same day caused the same, with thirteen other house lots delineated on said plan, to be severally offered at auction upon the conditions set forth in the memorandum annexed, and said defendant on said day was the highest bidder for said lot, and purchased the same for 9£ cents a square foot, being $570 for the whole lot, and signed said paper or memorandum, the lot of land mentioned in said paper as lot No. 13 being the lot in this count above described; and the plaintiff was then and for a long time after ready and willing to make the defendant a good and sufficient deed of the premises, and to receive the purchase money agreeably to the conditions of sale; and on December 3,1866, and before and after, tendered a good and sufficient deed of conveyance of said land, conveying the same free from all incumbrances, and requested the defendant to pay the purchase money, agreeably tc the conditions of sale, but the defendant wholly refused to take a conveyance of said land or any part thereof, or to pay therefor in any manner whatever ; whereby the plaintiff was greatly injured, and lost a large sum of money, to wit, $300, by a resale of said laud, and by expenses attending the same, and by the value of said land becoming and being less than said amount bid by the defendant, and otherwise.”</p> <p>The defendant demurred to the declaration, and assigned for causes of demurrer, that the contract alleged by the plaintiff was within the statute of frauds, and there was no sufficient memorandum thereof in writing to charge the defendant; that the memorandum annexed to the declaration did not sufficiently describe or identify the land alleged to have been sold to the defendant, or the price for which it was sold, or that the plaintiff was a party to the contract, or who were the other parties thereto; that it did indicate that there were other parties than the plaintiff, but that they were not joined in the action. In the superior court the demurrer was sustained, and judgment ordered for the defendant. The plaintiff appealed.</p>

<p>A pair of skids were laid over and across a sidewalk, from a wagon in the carriageway» into the door of a warehouse. A woman, passing along the sidewalk with a basket on one arm, attempted to cross over the skids, although she saw that the wagoner with two other men was preparing to roll a heavy cask of oil from the wagon down the skids into the warehouse. She had lifted one of her feet over or upon the skids, when one of the three men slipped from his footing, and the cask escaped from their control and rolled down upon and maimed her. In an action against the employers of the wagoner to recover damages for her injury as having been caused by his negligence, she asked for rulings: 1. “That the question for the jury was, whether the injury was occasioned entirely by the negligence or improper conduct of the defendants’ servant, or whether the plaintiff herself so far contributed to the misfortune, by her own negligence, or want of ordinaiy and common care and caution, that but for such negligence or want of ordinary care and caution on her part, the misfortune would not have happened, — that in the first case the plaintiff would be entitled to recover, and in the second she would not; ” and 2. “ That mere negligence, or want of ordinary care or caution, will not disentitle the plaintiff to recover, unless it be such that, but for that negligence, or want of ordinary care and caution, the misfortune could not have happened, nor if the defendants might, by the exercise of care on their part, have avoided the consequences of the neglect or carelessness of the plaintiff.” Held, that the rulings requested were not the correct rule of law which governs ordinary cases of injury by negligence; but “whenever there is negligence on the part of the plaintiff contributing directly, or as a proximate cause, to the occurrence from which the injury arises, such negligence will prevent the plaintiff from recovery, and the burden is always upon the plaintiff to establish either that he himself was in the exercise of due care, or that the injury is in no degree attributable to any want of proper care on his part; ” and that, if the judge submitted the case to the jury with sufficient instructions in conformity with the correct rule thus stated, the plaintiff had no ground of exception.</p>

Tort for assault and false imprisonment. At the trial in the superior court, before Lord, J, the following facts were admitted by the defendant or proved by the plaintiff.

<p>A. merchant in Boston ordered cotton brokers in Mobile to buy for him one hundred and fifty bales of cotton, “best you can,” but at not more than forty-two cents per pound. Three months afterwards, on their first opportunity to buy within the limited price, the brokers bought seventy-eight bales of cotton for forty cents per pound, shipped them to the merchant, forwarded to him the bill of lading, drew on him against them, and advised him of what they had done. To their advices he replied that he repudiated the purchase on the ground that there had been unreasonable delay and bad judgment in making it; and thereupon they directed him to turn over the bill of lading to their agents at Boston, and caused the cotton to be sold on their own account, the result being a large loss. In an action by them against him to recover for this loss, Held, that the defence, that his order was for an entire purchase of one hundred and fifty bales, and that he was not bound to accept and pay for any less quantity, was not open to him; that the fact that, when they directed him to turn over the bill of lading to their agents, they did not give him notice that they should hold him responsible for any loss on the cotton, was not a bar to the action; and that the question whether there was a mutual rescission of the contract was for the jury.</p>

Contract for breach of the following written agreement, dated January 23, 1866, and signed by the defendant: “ I hereby agree to purchase… Held: should be placed in the hands of Elijah Hanson for the use of the defendant, and to be delivered to him by said Hanson upon the payment, on or before said Hay 1, to the plaintiff, or to said Hanson for the use of the plaintiff, of the said balance due under the written agreement, and that the defendant should, on or before said Hay…

<p>Bill in equity, filed February 12,1868, against the assignees of the joint and separate estates in insolvency of John Felton and George Jacques, both of Boston, lately copartners as distillers under the firm of John Felton & Company; alleging that the proceedings in insolvency which resulted in the assignment to the defendants were begun in the court of insolvency for Suffolk, upon the petition of the insolvents, on February 3, 1859 ; that the plaintiff proved a debt of $10,735 against the separate estate of Felton; that Felton, at the date of said petition, was entitled to the conveyance, as of his separate property, of certain lands in Chicago; that the defendants afterwards received a conveyance of said lands to themselves as assignees, and of right were holding them for the benefit of the separate creditors of Felton, but were wrongfully claiming to hold them, and threatening to sell them, for the benefit of and to make distribution of the net proceeds among the joint creditors of John Felton & Company; and that, on the plaintiff’s application to the court of insolvency to order the defendants to sell the lands, to the end that the plaintiff’s rights might be determined upon the filing of the assignees’ accounts, the judge, after a hearing, was willing to pass such an order, but, with the assent of the plaintiff and at the request of the assignees, the order was stayed, under their agreement with the plaintiff “ that his rights in the premises might be determined previously with the same force and effect as if said lands were first reduced to money.” The prayer was, that the defendants might be directed so to marshal the assets from the lands, when sold, as to apply the proceeds of the sale first towards the payment of Felton’s separate debts. The defendants filed an answer on which issue was joined; and the case was reserved by Ames, J., on the bill, answer and evidence, for the determination of the full court, and is stated in the opinion.</p>

<p>Petition filed in February 1869 for a writ of certiorari to quash proceedings of the respondents in relation to the rates of toll of the petitioners, and for a writ of mandamus to compel the respondents to raise those rates.</p> <p>The petition alleged that the East Boston Ferry Company was a corporation under the St. of 1852, c. 244, for the purpose of establishing and supporting a ferry between the main land of Boston and the island of East Boston, and all the rights powers, privileges and franchises, in said statute set forth or referred to, were vested in said corporation; that the ferry was established and' opened for public use in 1852, and had ever since been maintained as a ferry for public use; that, by § 2 of said statute, the corporation was “bound to furnish all such accommodation for the transportation of persons, horses, cattle, carriages, wagons, goods and merchandise, as the mayor and aldermen of the city of Boston for the time being shall from time to time consider that the public convenience requires, and shall be allowed to collect and receive such tolls as the said mayor and aldermen shall determine, provided, however, that the rates of ferriage shall never be so much reduced as to reduce the yearly dividends of said company to an amount less than eight per cent, on the amount of capital stock actually invested;” that the mayor and aldermen from time to time ordered the corporation to furnish such accommodation for the purposes named in said statute as they considered that the public convenience required, and the corporation had at all times furnished all the accommodation so ordered ; that the mayor and aldermen, by an order passed October 4, 1852, fixed the rates of toll to be charged by the corporation for ferriage, (a schedule of which was annexed,) and, with the exception of a term of years ending July 1, 1860, during which time it charged rates lower than those fixed by such order, the corporation charged and collected the rates fixed in manner aforesaid; that in 1854, and ever since, the amount of capital stock of the corporation actually invested was $225,000; that the net earnings of the corporation, ever since August 4,1854, had not sufficed to enable the corporation to earn or pay any dividend whatever; that the rates of toll, fixed by the aforesaid order, were, and for more than eight years had been, so low, that the corporation had been and was unable to pay or earn any dividend upon its said cap■tal; that the rates of toll were fixed by said order in the money of the United States, said money at that time, and until 1862, consisting solely of coined money in gold and silver, having a certain, well known and unchanging value; but that since 1862 lawful money had consisted of United States notes or promises, which had fluctuated in value constantly, and been permanently depreciated below their nominal value in coined money; that this depreciation was such that at the time of the filing of the petition the nominal dollar was worth about seventy-four cents in coin, and had averaged in value much below that amount; that the effect of this depreciation was a substantial lessening of the actual or true value of the tolls received and fixed by said order, though the nominal amount remained the same; that while the actual receipts of the corporation were thus largely, and for a long period of time, curtailed, the expenses, both in the purchase of all supplies and material, and in the payment of labor, were largely increased by the direct and indirect effects of taxation, and by other causes following upon the late war; that, by reason of this increase of their expenses and depreciation of the currency, the corporation on October 5, 1868, presented to thé mayor and aldermen its petition, setting forth in substance the foregoing allegations, and praying that the rates of toll might be increased to such an extent as would enable the corporation to earn and divide a yearly dividend of eight per cent, on its invested capital; that the mayor and aldermen, before the said petition was presented, knew the outlays and receipts of the corporation, and that it failed to earn eight per cent, as aforesaid; that the petition was duly referred, by the board of aldermen, to their committee on ferries, being the appropriate committee therefor, and the mayor and aldermen appointed a time for a hearing thereon, at which time the corporation appeared and was duly heard; that at an adjourned hearing remonstrants against the petition were duly heard, and its prayer was opposed on grounds of public policy, and inconvenience to the inhabitants of Bast Boston, but the facts alleged in the petition were neither disproved nor denied; that, after said hearings were finished, the petition was recommitted to said committee, and no further action was ever had thereon, and, notwithstanding the repeated and urgent requests of the corporation, said board neglected to take further action, and to grant the prayer of the petition, or in any manner to raise the rates of toll fixed by said order; that at said hearings the corporation showed that the raising of said rates to the extent of fifty per cent, was necessary to enable the corporation to earn eight per cent, on its said capital, after paying its ordinary expenses; and that, after the petition had been thus presented to the mayor and aldermen, and after the truth of its allegations had been made to appear to the board, it became their imperative duty, by force of the provisions of said § 2 of the charter of the corporation, and especially by force of the proviso therein contained, to raise the rates of toll, which the corporation should thereafter be authorized to collect, to the extent proposed by the corporation, but the mayor and aldermen refused and unreasonably neglected to pass any order raising said rates of tolls, or to take any action for the relief of the petitioners.</p> <p>The respondents filed a general demurrer, and the case was thereupon reserved by Gray, J., for the determination of the full court.</p>

<p>A voluntary settlement, by a woman in contemplation of marriage, of her property in trust for her exclusive benefit during her life notwithstanding the marriage, will not be set aside, after the marriage, on the mere ground that the trustee was her confidential adviser; although she is able to manage the property, and wishes to regain possession of it.</p>

<p>B., the holder of a mortgage with the name of the mortgagee left blank, which had been intrusted to him for the purpose of negotiating it for the benefit of the mortgagor, agreed to sell it to C., and C. thereupon sent D. with B. to the house of the mortgagor to have the blank filled in with B.’s name, and the mortgage executed and acknowledged; the mortgage then to be assigned to C., and the price agreed upon to be paid to B. The blank was filled, and the mortgage executed and acknowledged, at the mortgagor’s house; B. told D. that he did not wish to make the assignment there, because he did not wish the mortgagor to know that he had put the mortgage directly out of his hands. B. and D. accordingly went to another place, where the assignment was made to C. and the price paid to B., who never paid it to the mortgagor, but embezzled it. Seldt that it was not a conclusion of law that C. had notice of B.’s fraud.</p> <p>To a bill in equity to avoid a promissory note and mortgage alleged to have been made to the mortgagee for the purpose of being negotiated for the benefit of the mortgagor, and to have been fraudulently assigned by the mortgagee for his own benefit, the assignee answered that he purchased the note and mortgage in good faith from the mortgagee. At the hearing it appeared that the assignee gave less than their face for the note and mortgage, and the judge found that he advanced the money and took the assignment in good faith without notice of the fraud. Held, that the further fact, found by the judge, that the transaction between the mortgagor and the assignee was a usurious loan, did not render the mortgage void in the hands of the latter, it not appearing that he supposed that he was making a loan. Held, also, that a refusal to decree the mortgage void, in the hands of the assignee, was justified by the pleadings and evidence.</p> <p>A bill in equity, against B.’s administratrix and C., alleged that the plaintiff executed a promissory note and mortgage to B. for him to negotiate and pay the proceeds to the plaintiff, but that B. fraudulently indorsed the note and assigned the mortgage to C., wh« was a party to the fraud; and prayed that the note and mortgage might be declared void, but did not pray for any relief against the estate of B., who had died. On the hearing, Held, that, as one of the parties to the contract was dead, the plaintiff was an incompetent witness under the Gen. Sts. c. 131, § 14.</p> <p>On the hearing of a bill in equity to avoid a mortgage alleged to have been assigned by the mortgagee in fraud of the mortgagor, evidence of similar transactions, alleged to be fraudulent, between the mortgagee and the person who acted as agent of the assignee, is inadmissible, if it does not appear that such transactions were near the time of the assignment in question, or so related thereto as to form part of one fraudulent transaction, or are •adapted to illustrate the intent.</p>

Two petitions, the first brought originally by Joseph M. Bell, and prosecuted, after his decease pending the proceedings, by his executrix, and the second by Samuel E. Brackett and Samuel F. Damon, to recover damages sustained by the taking, for the purpose of 'widening Summer Street in Boston, of land belonging to Bell and leased to Brackett and Damon.

Bill in equity by Sarah P. Linzee, widow, and Ann D. Torrey, singlewoman, filed October 8, 1866, against John Mixer, Marianne M. Crafts, widow, and the commissioners of the Commonwealth on public lands.

<p>Bill in equity, filed June 3,1868, by the original owners of a tract of land on Davis Street in Boston, comprising nine lots, and by the present owners of six of the lots, for themselves and in behalf of those owners of the other lots who might join in the suit, to enforce against the defendant, who was owner of one of the lots, the original restrictions subject to which all the lots were conveyed. Upon the filing of the bill, an interlocutory injunction was issued ; and the following case was afterwards reserved by Colt, J., for the determination of the full court.</p> <p>It was agreed by the parties, that the original owners of the tract caused it to be laid out in lots, and agreed among themselves that no buildings should be erected on said lots, except dwelling-houses of uniform height and of not less than three stories, and the exterior walls of the same should be of brick, stone or iron, and said houses should be set back from the line of Davis Street not less than seven feet (except outbuildings in the rear of the main houses) and no buildings thus erected should be occupied for the purpose of carrying on any offensive trade or calling whatever, and, in selling the lots, they would insert in the conveyances thereof restrictions conforming to said agreement; that, having advertised all the lots for sale on April 14, 1856, they sold seven of them by auction, the auctioneer stating that all the lots would be subject to the restrictions above-mentioned; that on May 5, 1856, they conveyed the seven lots so sold and also another lot, by deeds containing the above restrictions; that valuable houses were built on all said lots in conformity with the restrictions, and were always used as dwellings; that on April 22, 1859, the original owners conveyed the remaining lot to the defendant, by a deed containing the following provision : “ This conveyance made subject to the following restrictions; that no building is to be erected on said lot, except a dwelling-house of uniform height with the other houses on the other lots shown on the plan, [being said eight other lots,] and not less than three stories, and the exterior walls to be of brick, stone or iron, and to be set back from the line of Davis Street at least seven feet, except outbuildings in the rear of the main house; and said buildings, when erected, are not to be occupied for the purpose of carrying on any offensive trade or calling whatever.”</p> <p>It was further agreed that the defendant knew at the time of his purchase that all the lots were subject to said restrictions; “ that, a short time before the filing of the bill, the defendant determined to erect a building on his lot, set back from the street the required distance, the upper stories of which were intended by him to be used and constructed as a dwelling-house, and the first story and basement of which were intended by him to be used as a retail grocery store, and constructed as such; that, at the time of learning of the defendant’s intention, and before filing the bill, the plaintiffs gave notice to the defendant, and requested him to desist from erecting his building, but he dedined to do so ; that, at the time of the filing of the bill, he had prepared his plan, laid the foundation, and just commenced the superstructure of the building; that, after the injunction had been issued, the defendant erected on his lot a brick and stone building, set back the requisite distance from the street, the first story of which had but one room ; that the stories of the building above the first were constructed as a dwelling-house, and the defendant proposed to use them as such, for the residence of himself and his family; that the room comprising the first story was separated by a sheathed partition from the rest of the building, and had no entrance to the rest of the building, except through a door leading into a passageway, which passageway was in the rear of the first story; and that there was an entrance from the inside of the first story to the cellar, and the cellar had a doorway and steps leading into it from the street, large enough to admit the passage of hogsheads and barrels.”</p> <p>The plaintiffs contended that the defendant had, in erecting his first story, already erected and built a store, and denied that he had any right to erect or construct or use any part of the building or cellar as a store.</p> <p>The defendant (who, in his answer, had admitted that it was originally his purpose to occupy and use the main house as a residence, and to use a room in the lower story as a place in which to sell goods, in his business as a retail grocer) contended that he had not erected the first story as a store, but had finished it up to a point from which he could complete it either as a store or dwelling; and stated that he was awaiting the decision of the court, intending to complete the first story and cellar as a store, to be used as a retail grocery store, if he had the right to do so, and if he had not the right to do so, intending to complete the first story and cellar as a dwelling as usually constructed, and then to use the first story and cellar for the sale of groceries.</p> <p>The parties agreed upon the facts, without prejudice to any question as to whether the defendant had complied with the in> junction.</p>

<p>Writ of entry for a strip of land, lying on the boundary of the estates of the respective parties, on Eliot Street in Boston, and extending northerly from said street to the rear line of the estates.</p> <p>At the trial in the superior court, before Lord, J., it appeared that both parties claimed title from a common source, Mary Smith, who in 1781 owned a tract of land bounded southerly by Eliot Street, and extending from Pleasant Street on the west to the west line of land of heirs of John Eliot on the east; that in that year there was conveyed to John Innis a parcel of this tract, described in the deed to him as thirty feet in width in front on Eliot Street, as of the same width in the rear, and as bounded on the east by the line of land of the heirs of John Eliot and on the west by other land of the grantor; that subsequently there was conveyed to Nathan Whitmarsh another parcel, adjoining on its eastern boundary the parcel conveyed to Innis, and described in the deed as thirty feet in width on Eliot Street, that lastly there was'conveyed to John Tuckerman the remaining parcel, adjoining on its eastern boundary the land conveyed to Whitmarsh, and described in the deed as thirty-six feet in width on Eliot Street and as bounded westerly on Pleasant Street; and that by sundry mesne conveyances the parcel conveyed to Innis had become vested in the demandant, and the other two parcels in the tenant. The line of Pleasant Street is now indicated by certain structures abutting thereon; the demandant contended that this line coincided with the boundary of the street at the time of the above recited deeds ; and it was admitted that a measurement of sixty-six feet easterly on Eliot Street from said line would terminate on the westerly line of the strip claimed by the demandant. “ The tenant offered to show that the line of land of heirs of John Eliot above mentioned was a well defined and fixed monument, locating the eastern boundary of the demandant’s estate; but the demandant contended that this line was too uncertain and indefinite to constitute a monument from which measurement could be made.” The distance on Eliot Street from the line which the tenant offered to show as the true eastern boundary of the demandant’s land to Pleasant Street was in fact about eighteen inches more than ninety-six feet, and a measurement of thirty feet westerly on Eliot Street from such line would not include any part of the strip claimed by the demandant.</p> <p>“ The land of the demandant was occupied in part by an old wooden dwelling-house fronting on Eliot Street, which appeared to have been in existence as early as the year 1800. The land on the westerly side of this house, continued by a fence or shed to the northerly line of the estate, had for many years formed a part of the inclosure used as the yard of the Whitmarsh house, on the easterly side of the Whitmarsh estate, but the gutter on the west side of the demandant’s house had overhung by several inches the walls of the house,' and a strip of land in said inclosure, of the width of the gutter; the wall of the demandant’s house, continued by said fence or shed, forming the easterly limit of said inclosure. No windows, doors or other openings or means of communication were ever known to exist between these two estates on this boundary.</p> <p>“ The tenant contended that the demandant’s grantors built this house upon the extreme westerly verge of their land; that the true line of division and occupation was along the baseboard of this house, on its westerly side; that the eaves and gutter along this side of the house always overhung the land granted to her; but that she and her grantors occupied the land under the gutter, up to the base-board óf the demandant’s house, for the ordinary purposes of a yard to the dwelling-house on her land ; that no adverse or exclusive occupancy of the land under those eaves had been maintained by the demandant and his grantors, except by the overhanging as aforesaid; and she offered evidence tending to show such occupancy by her and her grantors, and that the water flowing into this overhanging gutter had been conducted around and upon the land of the demand-ant in the rear of his house; that when, on one or two occasions, this water had fallen on the land under these eaves, complaint had been made against it as an encroachment on the Whitmarsh estate; and that, upon such complaint, the water had been turned by the demandant and his grantors, so that it was conducted around and fell on the land in the rear of the demandant’s house. The demandant contended that this had been done as a neighborly act, and never yielded as a right, and the evidence on this point was conflicting.”</p> <p>The judge ruled, “ upon the facts as agreed, (the three estates thus formed out of the original estate of Mary Smith, and each containing somewhat more in extent of territory than the deeds called for, having been used as stated in the evidence,) that the house of the demandant, erected about 1801, was upon land granted to the demandant, which extended to the exterior limits of the eaves of the house, towards the tenant’s estate; that there was no sufficient evidence of a disseisin by the tenant or her grantors, of the land under the eaves of the demandant’s house, to divest the demandant of his title thereto; and that the line by the exterior line of the eaves of the house was a straight line to the western boundary ” The jury returned a verdict for the demandant, for the strip of land of the width of the eaves of the demandant’s house, continued to the rear of the estate, and the judge reported the case to this court “ for their determination of the correctness of the ruling.”</p>

<p>Bill in equity praying for specific performance of an agreement to open and maintain a strip of land as a street fit for travel. Hearing before Colt, J., who made a report of the case of which the material part was as follows:</p> <p>The defendants sold at auction certain lots of land in Boston, belonging to them. A plan was exhibited before and at the sale. The plaintiff at the sale bought two lots, and these lots were conveyed to him by the defendants by a deed which described the premises conveyed, as bounded running southeasterly “ to a private way or street, twenty-five feet wide; thence turning at a right angle, and running northeasterly on said private way or street seventy-nine and feet,” and as “ being lots numbered five and six on said plan.” On the plan a strip of land twenty-five feet wide marked “ street ” extended northerly from First Street, a street of the city of Boston, to Federal Street, another street of said city, and ran past the southeasterly side of lots five and six, and several other lots. This strip of land belonged to the defendants, but had never been made a street, though “ it had been left open from First Street as far northerly as lots five and six extended, but was there barred by a fence.”</p> <p>The plaintiff contended that the defendants were bound tc open and maintain as a street, all that strip of land which was marked “ street,” and to fit the same for travel as a street. The defendants denied that they were bound to do so.</p>

Replevin of 5400 bushels of oats, shipped by the barge St. ffoch from St. Valentine in Canada to Burlington in Vermont, and thence brought by railway to Boston.

<p>An action on a policy of insurance, issued to a “ barque and owners,” on the barque, was submitted to the court on agreed facts, in which it was stated that the plaintiffs had prior insurance on the barque, against the same risks, to the full amount of its value; and it was thereupon adjudged that the policy, in accordance with a condition on its face, never attached; and, by agreement of parties, entry was made of judgment for the plaintiffs for a return of the premium and judgment satisfied. Six weeks afterwards, the plaintiffs filed both a motion to vacate the judgment, and a petition for a writ of review, on the ground that the policy had been taken out, in fact, though not in form, partly'for the benefit, and at the request, of the equitable owners of five sixteenths of the barque; that the interest of these owners had not been insured to its full value; that these owners were liable to the plaintiffs for advances, for which the plaintiffs held the legal title to the vessel as security; that, until after entry of the judgment, and until informed by their counsel, the plaintiffs had supposed that the insurable interest of the equitable owners was an amount equal to five sixteenths of the value of the vessel deducting the said advances, and that this amount had been fully insured before taking out the policy in question. Meld, that, as all the facts in the case had always been within the knowledge of the plaintiffs, they showed no cause for vacating the judgment or granting a review.</p>

Contract by a merchant doing business in Boston, to recover the amount insured on his ship Zero by a policy issued by the defendants, an insurance company established in Boston. The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon agreed facts, of which the following are all that are material.

Contract on a policy of insurance upon the schooner Sarah Jane and her outfits, issued by the defendants, who were underwriters at Gloucester; to recover for a loss of $265 on the outfits. Writ dated December 18,1866. Trial in the superior court, before Lord, J., who, after a verdict for the plaintiff, signed a bill of exceptions of which the following is all that is material.

<p>A policy of life insurance, expressed to be made in consideration of a premium already paid and of future annual payments; providing that, in case any premium due on the policy should not be paid when due, the policy should be forfeited; declaring that the policy, and any sums that should become due thereon from the insurers, were pledged to them, to secure the payment of any premium on which credit should have been given, or any note or security therefor, such pledge in no respect to affect the provisions respecting forfeiture; and further declaring that the policy should not take effect until the premium was paid; was made and delivered to the assured by the insurers, who took from him for the first premium a certain sum in cash, and his two promissory notes, one on six months, the other on five years. This latter note contained a provision that the policy should be subject to forfeiture in case of nonpayment of interest and principal of this note, in compliance with the terms thereof. When the first note, which contained no such provision, became due, it was not paid. Held, that the policy had taken effect; that the clause as to forfeiture for nonpayment of premiums referred to premiums subsequent to the first; and that the policy was not avoided by failure to pay the note.</p> <p>The holder of a policy of life insurance refused to pay a premium note when due, and declared that “ he would not have anything more to do with the insurers and abandoned the whole thing;” but he retained the policy, and the insurers retained the note; nor did it appear that they assented to the abandonment. Held, that the policy remained in force.</p>

<p>A bill in equity may be maintained against officers of a mutual insurance company, who, having funds of the company in their hands to pay a claim of the plaintiffs on the company for a loss, have neglected and refused to pay it, and fraudulently applied the funds to other purposes. But to such a bill the company is a necessary party.</p>

<p>An administrator filed a bill of interpleader, against the next of kin of his intestate, and * person claiming to hold, as assignee, a policy of insurance issued to the intestate on his life, the proceeds of which were in the plaintiff’s hands. The defendants agreed that the court might, if it saw fit, take jurisdiction. SeM, that it was not properly a case for inter-pleader, but that the court would take jurisdiction as of a bill by the administrator seeking the instruction and protection of the court.</p> <p>An assignment, without the assent of the insurers, to one who has no interest in the life of the assured, of a policy1' of insurance upon the life of the assignor, which provides that any assignment thereof without the assent of the insurers shall be void, passes no interest, legal or equitable.</p>

<p>Articles of partnership between A. and B. provided that profits and losses should be shared equally, “ A., however, guaranties to B. the sum of ten thousand dollars towards such profits, notwithstanding losses to any extent.” No profits were made in the business; and the partnership was dissolved at the end of a year. JBeld, that B. was entitled to receive ten thousand dollars from A.</p> <p>The compensation of a receiver, appointed to wind up the affairs of a dissolved partnership, is to be limited to such an amount as will afford a reasonable compensation, for the services required and rendered, to a person of ordinary standing and ability, competent for such services; and is not to be based on the usages or rates of profit which prevail in any. branch of business, nor upon the special qualifications or standing of the person appointed.</p>

Bill in equity filed March 8, 1869, by trustees under the will, proved and allowed in 1858, of Tucker Daland, late of Salem, to obtain the direction of the court in respect to a dividend declared by the Hill Manufacturing Company, a corporation under the law of Maine, arid established at Lewiston in that state, in fifty-six shares of whose capital stock part of the trust fund was in 1861 invested.

<p>Two actions of contract to recover the amounts of taxes assessed in 1868, under the St. of 1868, c. 349, by the assessors of Boston, on the plaintiffs as nonresident shareholders in the capital stock of the National Revere Bank, a banking association established at Boston under the U. S. St. of 1864, c. 106; submitted to the judgment of the court on statements of facts in which it was agreed that the plaintiffs, the first of whom was a corporation in Rhode Island, and the second a citizen of Connecticut, paid under protest the taxes so assessed. The St. of 1868, c. 349, was passed June 11, 1868, and in § 7 it was provided that it should take effect on its passage, and “ apply to taxes assessed and collected for the present year, in the same manner and to the same effect as if it had been in force on the first day of May.”</p>

<p>Upon the settlement of an account by a trustee or a guardian, his former accounts may be opened to the same extent as in the settlement of accounts of executors or administrators under the Gen. Sts. c. 98, § 12; including former accounts settled by him jointly with an associate in his trust, since deceased, and for whose receipts or misappropriations he ought not to be held responsible.</p> <p>The assent of a guardian ad litem of a minor cestui que trust to an account rendered by the trustee is no bar to a revision and correction of the account when reopened upon the settlement of a subsequent account by the trustee. So also as to the settlement of accounts by a guardian.</p> <p>A trustee or a guardian, in settling an account, is liable to be examined as a witness in reference to any of his former accounts which are opened.</p> <p>A testator devised to trustees, as part of the trust fund, his interest as a tenant in common with A. and B. in one parcel of real estate; and to his widow another parcel for her life, with power to sell the fee. The widow, through an agent, negotiated a sale of the second parcel to A., and as a part of the transaction the trustees bought the interests of A. and B. in the first parcel and leased that whole parcel to B. It appearing that the agent who negotiated the transaction was paid full commissions for it out of the trust fund, Held, that the trustees were not entitled to the allowance of special charges for their services in it, additional to their general charge of commissions.</p> <p>When, in settling an account of a trustee or a guardian, his former accounts are reopened, special charges therein for definite particular services are not to be disallowed merely because additional to general charges of commissions; nor without some proof that they are excessive, or that the services were not such as to justify any additional charge.</p> <p>A person who is both trustee and guardian is not entitled to full compensation in each capacity for the same service.</p>