Volume 102 — Massachusetts Reports

<p>Indictment against a married woman for the murder of Obadiah Jones by shooting him with a pistol on July 5,1868. Trial in Norfolk, before Gray, Wells, Ames and Morton, JJ., who, after a verdict of guilty of murder in the first degree, allowed the following bill of exceptions:</p> <p>“ The Commonwealth proved, by the record of this .court, that a libel for divorce, charging the defendant with adultery in 1866 and 1867, was filed on March 30, 1868, and continued to February term 1869. The defendant claimed a right to show, by the same record, the subsequent proceedings and termination of the suit. But the court ruled that the • proceedings subsequent to the alleged homicide were immaterial and inadmissible. To this ruling no exception was taken.</p> <p>“ The Commonwealth was allowed to introduce testimony that in March 1868 the defendant said that she and her husband had had some trouble, but he would never get a bill of divorce against her; that she understood that Obed (the deceased) was to be a witness against her, but that he never should live to swear against her, for she would kill him first. To the admission of this testimony no exception was taken.</p> <p>“ The Commonwealth then offered testimony that, on another occasion, a short time before the death of Jones, the defendant said that she would have her revenge against all the witnesses who should testify against her in the divorce suit. This testimony was objected to by the defendant, but was admitted by the court, and to its admission the defendant alleged exceptions.”</p>

<p>A testator, in his will, gave his estate as follows: “ In equal parts to and amongst my nephews and nieces,” (children of his deceased sisters,) M the portion coming to my nieces to be held in trust for them during the term of twenty-five years from the day of my death, the income to be payable to their individual order only; and on the death of each female cestui que trust her portion of the income shall be payable to her children or child, should she leave any, otherwise to the remaining cestuis que trust during said term of twenty-five years. At the expiration of said term of twenty-five years, the capital of this trust fund shall be paid to my said nieces, and to the children or child of any of them who shall then be deceased, the children or child of a deceased niece of mine taking the parent’s share. Should any of my said nieces die, leaving no children or child surviving at expiration of said term of twenty-five years, her share shall go in equal parts to any surviving nieces or niece of mine, and to the child or children of any one who shall have previously died, such child or children last mentioned taking the parent’s share.” Held, 1. that the will manifested an intent of the testator to give to each nephew an absolute indefeasible interest in his share of the estate, vesting at the testator’s death; and to each niece a beneficial interest in an equal share, likewise then vesting, but, in the contingency of her death within twenty-five years, liable to be defeated by an executory devise in favor of her children, if she should leave children, or, if she should die childless, then in favor of the surviving nieces or niece and their children —the right to the income of each niece’s share following the apparent or presumptive interest in its capital; 2. that this executory devise over was void for remoteness, as to its disposition both of capital and of income; 3. that, this devise so being void, the trust must fail, and each niece take her share absolutely, like each nephew; 4. that, in the case of a niece who died after the execution of the will and before the death of the testator, leaving two children who died after the testator’s death, minors and unmarried, their surviving father was entitled to the share which his wife would have taken had she survived the testator.</p>

<p>Under the provision of the Gen. Sts. c. 100, § 9, that a new trustee shall have and exercise the same rights and duties as if originally appointed, he may be admitted on his own petition to prosecute a bill in equity filed by bis predecessor to recover the trust estate, and need not file a supplemental bill or bill of revivor.</p>

<p>If, on an application to the probate court to appoint a guardian of a person as insane, notice is ordered and given to the person to appear in court at a time and place named, and show cause, if any, why the application should not be granted, it is within the discretion of the judge of probate whether or not to order further notice of other stages of the proceeding; and it is no ground for vacating the decree appointing a guardian, that it was entered, without further notice to the ward, nine months after the time so named in the notice given.</p> <p>It is no ground for vacating a decree appointing a guardian of a wife as insane, that her husband, after making the application and before the decree, joined with her in a conveyance of land, and represented, in conversation, that the application was abandoned.</p> <p>Under a license of court, granted on the 5th day of April in the year 1869, for the sale of land, and directing the licensee to give public notice of the time .of such sale by publishing a notice thereof once a week for three successive weeks in a certain newspaper, he published in the newspaper, on the 7th, 14th and 21st days of the same April, a notice not dated, but reciting that, by virtue of a license of court u granted on the 5th day of April instant,” he would sell the land “ on Thursday, the 22d day of said April, at four o’clock in the afternoon.” Held, that this notice was not so defective as to vacate the sale.</p>

<p>The board of aldermen of Boston, in laying out public ways, and the officers of the city, in constructing them, act in the exercise of the right of eminent domain delegated to them by the Commonwealth, and not as agents or servants of the city; and their powers in such exercise of that right cannot be destroyed or abridged by any prior covenants car other acts of the city as a municipal corporation.</p> <p>The St. of 1867, c. 324, authorizing the board of aldermen of Boston to lay out .a certain street over tidewaters, construed in connection with the existing laws in respect to laying out highways, makes full provision for compensation for all property taken under it for public use, and is not unconstitutional in authorizing the taking, for such use, of property held under a covenant of quiet enjoyment from the city.</p> <p>A. vote of the board of aldermen of Boston, laying out a public way and assessing dam. ages therefor, cannot be impeached collaterally for not stating separately the damages ol each person whose land is taken for the way.</p>

Bill in equity seeking relief in the matter of a contract relating to land.

<p>In a suit in equity an appeal lies under the Gen. Sts. c. 113, § 10, from the refusal cf a single justice to order an issue to be framed for a jury.</p> <p>On a bill in equity to reform a deed by inserting a clause alleged to have been omitted by common mistake of the parties, the plaintiff cannot have an issue of the question of mistake framed for a jury as a matter of right, but the court may frame such an issue at its discretion.</p> <p>On the trial by jury of an issue whether the parties to a deed intended to have a clause inserted therein, but omitted by common mistake to have it done, the intention and mistake must be proved beyond a reasonable doubt, and not merely by preponderance of evidence.</p>

Bill in equity filed by the widow of William Pollock against trustees under the St. of 1861, c. 164, to obtain a decision of the court upon her right to the income of the portion of the personal estate of her deceased husband, exceeding $10,000, to which she was entitled by that statute, which enacts, in § 1, that, on the death of a testator, his widow may waive the provisions made for her in the will, and become thereby entitled to such portion of the estate as she would…

<p>H., having caused land occupied and paid for by himself, but of which he never held the legal title, to be conveyed to his children in fraud of his creditors, the creditors made a levy of an execution against him on the land, which passed no title because the conveyance was made before the St. of 1844, c. 107, took effect. The creditors then conveyed the land to C., who entered and made improvements, after which P., fraudulently and collusively with H. and the children, levied an execution on the land as property of the children. Held, that C. could not maintain a bill in equity for relief against P. and H. and the children, without making the creditors parties.</p>

<p>Contract for the price of a horse sold by the plaintiff to the defendants. The answer, after a general denial, set up that, if the plaintiff should produce evidence tending to prove his allegations, the defendants would show that the horse was bought under the following circumstances, viz: that the defendants were hauling charcoal to a furnace, with a team of horses, when one of the horses became disabled, and the plaintiff applied to them to buy his horse, and, to induce them to make the purchase, “ represented ” to them that his horse was capable of the service required in hauling the charcoal, and the defendants bought the horse, “ relying on said representations and promises of the plaintiff, and induced thereby,” but that “ all of said promises and representations of the plaintiff were false and untrue,” and the horse was not capable of the service, and was good for nothing whereby the defendants were greatly delayed in their work, and put to trouble and expense, for all which they claimed to • ecoup' “ and the defendants say that, to induce the defendants to purchase said horse of the plaintiff, the plaintiff falsely represented that said horse was able to work as part of a team in the defendants’ business of drawing coal, and the defendants, induced by said representations and relying thereon, bought said horse of the plaintiff, and said representations were false, and said h®rse was wholly unable to work as aforesaid, and good for nothing, and the defendants have paid the plaintiff for said horse more than he was or is worth, and owe the plaintiff nothing therefor.”</p> <p>At the trial in the superior court, before Rockwell, J., the defendants, at the close of the evidence, contended “ that the plaintiff warranted the horse to be of the kind and description such as the answer alleged that he represented the horse to have been; that the evidence was competent and sufficient to prove a warranty on the part of the plaintiff, and a breach of the warranty, and damages to the defendants by reason thereof, which the defendants sought to recoup; and that, under the pleadings, the defendants were entitled to a ruling sustaining said claim.”</p> <p>“ But the judge ruled that, although, if the answer had set out and alleged a warranty on the part of the plaintiff, the evidence might properly have been submitted to the jury under a ruling that, if the jury were satisfied, either that the plaintiff’s representations and statements amounted to a warranty and that there was a breach of said Warranty, or that the plaintiff made material false representations as inducements to the bargain, the defendants would be entitled to recoup; yet, in this case, under this answer, such instructions could not be given, but that, in order to entitle the defendants to recoup in this case, the jury must be satisfied, upon the evidence, that the representations set out and alleged in the answer were made by the plaintiff, that they were false, and that either he knew that they were false, or that, being untrue, they were stated by the plaintiff as of his own knowledge to be true.”</p> <p>The jury found for the plaintiff without recoupment; and the defendants alleged exceptions.</p>

<p>A valid patent, or any interest in or license under it, without regard to its pecuniary value or the degree of its utility, is a good consideration for a promissory note, or other contract.</p>

Contract on a promissory note dated February 9, 1853, at North Adams and payable, thirteen years after date, to the bearer, without any specification of a place of payment. Writ dated February 12,1866. The officer made return of an attachment of real estate thereon at fifteen minutes past six o’clock in the afternoon of that day.

Contract, brought originally by John C. Wolcott, and prosecuted afterwards by his assignee in bankruptcy, against the executrix of the will of Samuel Angell, on a promissory note described in the declaration as dated May 14, 1863, and signed by Samuel D. Angell and Samuel Angell, promising jointly and severally to pay to the bearer seventy-five dollars and interest, one year after date. Writ dated November 29, 1864.

Contract under the Gen. Sts. c. 86, § 61, referred under a rule of the superior court to an arbitrator, who awarded that the plaintiff should recover of the defendants a sum named, together with costs of court and of the reference; and to whose award was appended the following certificate, also signed by him: 16 The only claim of the plaintiff in this case was, to recover money back, of the defendants, which he had paid them for intoxicating liquors.

<p>A tax assessed to a husband was abated by the assessors of the next year, and then reassessed by them to the wife, and added, in the presence of the collector of taxes of the previous year, to the list committed to him by the assessors of that year for collection, without making any other change in the list or his warrant. Reid, that the assessors did not exceed their jurisdiction, and that the collector might justify her arrest on the warrant as under a process regular on its face.</p>

<p>The list furnished by a landowner to the assessors described his estate as consisting of three parcels, but gave the number of acres in one of them only. The assessors estimated the whole estate as containing sixty-five acres. On an application to the county commissioners for an abatement, it was agreed that the estate in fact contained “ about fifty-five acres, more or less.” Held, that he was not thereby entitled to an abatement.</p> <p>The valuation for taxation of land and the structures thereon should be made not subject to the use to which they are for the time appropriated, nor independently of that use; and therefore a reservoir dam and land which it covers with water are liable to be taxed, although, independently of their use as a reservoir in connection with mills, and while the land is so flowed, they are only of nominal value.</p>

<p>Tort, praying for relief in equity, by the owners of land in West Stockbridge against the Cone Iron Works, Franklin B. Cone and Robert Pomeroy, for injury to the plaintiffs’ land by digging a shaft on adjoining land occupied by the defendants, and thence digging and excavating drifts, caves and openings into and under the plaintiffs’ land and taking therefrom large quantities of iron and other ores. The plaintiffs alleged that the defendants concealed the injury and prevented them from entering said shaft to ascertain its amount; sought to recover damages for the injury; and prayed for an injunction and discovery, and that the plaintiffs, by their agents or by propet officers appointed by the court, might have free access into the said shaft and any drifts and excavations accessible therefrom, in order to make full survey of all the excavations into the plaintiffs’ land complained of, and might be authorized to make all such surveys, explorations and discovery, and do all such acts, as in the premises were rightful and proper to be made or done. Writ dated December 28,1867.</p> <p>On motion of the plaintiffs, the court passed an order appointing viewers, and empowering them, after hearing the parties, to appoint engineers, and direct the engineers and workmen employed by them to enter the shaft on the defendants’ land, clear the water from said shaft by pumping or otherwise, examine all excavations and drifts leading therefrom towards and under the plaintiffs’ land, and clear the same so far as necessary to ascertain what iron ore or other mineral had been taken from the land of the plaintiffs and under the surface thereof; and to do all acts that might be reasonably necessary to be done to effect the purposes of the decree. The order farther directed that the plaintiffs should advance and pay to the viewers all the money necessary to be expended in the work, and should pay the viewers for their reasonable charges and expenses, to be finally settled by the court.</p> <p>After the view, the case was referred to Gr. F. Hoar, Esq., as a master, who reported that the Cone Iron Works had trespassed on the plaintiffs’ land and taken ore therefrom; that Cone was the general agent of said Works, and all the acts and trespasses committed by said Works were done by subordinate agents acting under him, and inured wholly to the advantage of said Works; and that Pomeroy had no part in any of the said acts or trespasses. The master, at the request of the parties, abstained from passing upon the question of concealment by the defendants, and upon the question of costs or of the liability for expenses of the view. The other facts found by him are stated in the opinion.</p>

<p>Bill in equity filed November 2,1866, setting forth that the plaintiff was owner of a house and land in Stockbridge, and also of four springs on land of the defendant, and that she had a right to have the water from these springs conducted by an aqueduct across the defendant’s land to her house; but that the defendant had destroyed the aqueduct and prevented the plaintiff from exercising her said right, doing her irreparable injury. The prayer was for the restoration of the plaintiff’s right, for an injunction and for general relief. The answer denied the plaintiff’s right and also that she was entitled to relief in equity, and set up the statute of limitations. The case was referred to a master who reported the following facts.</p> <p>On June 5,1830, Joseph E. Woodbridge, being owner of a lot of land in Stockbridge on the south side of the Housatonic River, afterwards known as the “ Hull lot,” on which were four springs, of a homestead lot and house north of the river and between it and the Stockbridge and Lee road, then a turnpike, but which in 1853 became a highway, and of a third lot and house on the opposite side of the road, entered into an indenture, as party of the first part, with Isaac Kellogg, George C. Kellogg, Thomas Dyer and Harvey Case, parties of the second part. This indenture, after reciting that “ the parties of the second part have it in contemplation ” to conduct the water from the four springs to the village of Stockbridge, set forth that “ to facilitate said undertaking, and in consideration of sixty dollars to me in hand paid, and of the covenants and agreements hereinafter mentioned, the party of the first part, for himself, his heirs and assigns, lets, leases, grants, sells and conveys to the parties of the second- part, and to their heirs and assigns forever, the whole use of said four springs, and the right and privilege of laying an aqueduct in the usual manner for the purpose aforesaid across any ” of his land on the south side of the road, and also the right and privilege of making reservoirs, “ and also the right and privilege of entering upon said land at all reasonable and proper times ” “ for the purpose of making said aqueduct and reservoirs, and of making all suitable or necessary repairs of the same, doing no unnecessary damage.” The parties of the second part covenanted for themselves, their heirs, executors, administrators and assigns, with the party of the first part, his heirs and assigns, to deliver to him, his heirs and assigns, a reasonable supply of water for the use of two houses and a barn on his land, the water to be delivered by the first day of December next, “ and to be continued thereafter forever, subject to the conditions and stipulations hereafter mentioned. But if there should be a failure of water at the springs, or of the main pipe leading from the springs to the north side of the river, the parties of the second part are not to be responsible in damages for not delivering the water in manner aforesaid. And the parties of the second part, for themselves, their heirs, executors, administrators and assigns, covenant and agree with the party of the first part, bis heirs and assigns, to make an aqueduct with good leaden pipes from the first reservoir north of the river or from the main pipes, and conduct the water therefrom to the party of the first part, his heirs and assigns, at the several places aforesaid, and then they are to be discharged from the further care and support of that part of the aqueduct leading from the said first reservoir north of the river, or from the main pipe, to the several places aforesaid, and the party of the first part, for himself, his heirs and assigns, covenants with the parties of the second part, their heirs and assigns, to support and keep the same in repair thereafter, at his or their own expense. And if by any reason the water should not be delivered in the main pipe, on the north side of the river, for the space of one whole year at one time, this indenture is to cease and be thereafter void and of no effect, the parties of the second part, their heirs and assigns, retaining the right in that case to take away their pipes, they filling up the trenches and doing no unnecessary damage.”</p> <p>Isaac Kellogg and his associates, the parties of the second part under this indenture, soon after its execution, laid an aqueduct supplying the village with water to some extent, as well as both of Woodbridge’s houses, as specified in the indenture. This aqueduct was kept in operation, with more or less regularity, and under charge of various persons, for several years. It ceased to supply one of Wood bridge’s houses as early as 1840, and there was no evidence that it ran to any other place in the village later than 1840 except to the other Woodbridge house. It was contended by the defendant that the aqueduct supplied water to this latter place as late as 1847, and much evidence was introduced upon the point, “ but it failed to satisfy the master of ths fact and he cannot state that it did supply water later than 1840.” Isaac Kellogg and his associates ceased to repair thus aqueduct after 1839; a year or two previous to 1851 they endeavored to sell it and their rights in it; and in 1851 they took up and removed the pipe.</p> <p>On October 25,1832, Woodbridge conveyed to Edward Buirail the “ Hull lot,” on which the springs were situated, by a warranty deed containing this provision: “ Hereby reserving from and on said lot above mentioned all the rights and privileges heretofore conveyed by the said Joseph E. Woodbridge to Isaac Kellogg, George C. Kellogg, Thomas Dyer and Harvey Case, their heirs and assigns, by an indenture dated June 5, 1830 ” and on. February 9, 1846, Burrall conveyed the Hull lot. to David C. Hull by a warranty deed containing this provision: “ The said Burrall reserving to himself, his heirs and administrators and assigns, the water of four springs on said land, being the same springs conveyed by Joseph E. Woodbridge to Isaac and George C. Kellogg, Thomas Dyer and Harvey Case, as per their contract dated June 5,1830, together with the aqueduct pipe now in the ground on said land, with all fixtures belonging to said aqueduct and springs, with all the privileges named in said agreement of entering upon the land to repair said aqueduct at all times, to take away said pipe and fixtures, and all other privileges conveyed by said agreement. The said Burrall also reserves the right of laying down other pipe and taking the waters of said springs, and repairing any aqueduct that said Burrall or his heirs, administrators or assigns, may see fit to lay down and use, as per the conditions relating to the present pipe and fixtures.”</p> <p>On March 17, 1851, Hull conveyed to the Stockbridge and Pittsfield Railroad Corporation “ the right to the sole use and occupancy of” a strip of land running across the Hull lot from east to west north of the springs, “ as a roadway and for the purposes of a railroad.”</p> <p>In 1855 the heirs of Hull conveyed to the defendant by warranty deed that part of the Hull lot which lay north of the railroad, between it and the river, “ and also the water of the springs on my land south of the railroad, or so much thereof ás does not already belong to Daniel Stanton or Edward Burrall, together with the right to build and maintain an aqueduct to the same; ” and in 1864 the heirs of Hull conveyed to the defendant that part of the Hull lot which lay south of the railroad, “reserving all rights to springs and the right to take them, lay down, take up and repair aqueduct, &c., which Edward Burrall reserved in his deed to David C. Hull, dated February 9,1846.”</p> <p>Burrall by deed dated April 1, 1847, conveyed to Isaac Brown three parcels of land in Stockbridge. The first has nothing to do with the present case; the second was a narrow strip running from the Stockbridge and Lee road to the Housatonic River opposite to the third parcel; the third parcel lay on the south side of the Housatonic River and adjoined the west side of the Hull lot. The deed contained this provision: “ The said Burrall reserves to himself, his heirs, executors, administrators ana assigns, all the lead pipe belonging to an aqueduct in or on the ground or in the river, on the two last described lots of land; also, the right of continuing in the ground and in the river, and also of laying down pipe through the lane or second piece of land from the river to the said turnpike road. Said Burrall also reserves the right of entering upon the last two pieces of land, by himself and hired men, for the purpose of laying down pipe and repairing said aqueduct; he also reserves the right of making a reservoir for said aqueduct, on the lot on the south side of said river; also reserves the right of entering upon the last two pieces of land, by himself and hired men and teams, for the purpose of taking up and carrying aw.ay all of said lead pipe, aqueduct and fixtures belonging to the same, he leaving the land smooth and in good order. The three above described parcels of land are hereby conveyed with all the privileges and appurtenances belonging to the same, subject to the above reservations.” The title to the second and third parcels, known respectively as the “ Brown lane ” and the “ Brown lot,” became, by mesne conveyances, vested in the defendant.</p> <p>On March 25, 1845, Burrall, who was at that time the owner of two lots of land to the north of the Stockbridge and Lee turnpike, one on the east side of a road leading from the turnpike to Jones’s Hill, and the other on the opposite side of said road, (the former lot being the one now belonging to the plaintiff,) conveyed to Horatio Byington the latter lot and “ also the aqueduct pipes and appurtenances on the premises, and the pipes across the west half of the road leading to said Jones; also one half of the water of the springs on the land of said Burrall, lying eastwardly of the land hereby conveyed, and a right in the aqueduct on the land of said Burrall and on the east half of said road, leading to said Jones, through which the water is now conducted, for the purpose of conducting the water on to the premises hereby conveyed; also a right of entry on the land of said Burrall, for the purpose of putting down and repairing said aqueduct and spring, leaving the land of said Burrall and premises in as good order as when entered upon.” The spring mentioned in this deed has no reference to any of the springs on the Hull lot, but to a spring on that other lot of Burrall to the north of the turnpike, which now belongs to the plaintiff. This spring has been dry during a part of several years.</p> <p>This other lot of Burrall’s to the north of the turnpike consisted of two parcels separated by a highway running at an angle from' the turnpike and leading to Lenox, so that one of the parcels, called “ the triangle,” lay between the turnpike and the Lenox road, and the other lay between the Lenox road and the road to Jones’s Hill above mentioned.</p> <p>Burrall, by deed dated November 7,1851,- conveyed both these parcels to Junius D. Adams, who, by deed dated November 20, 1851, conveyed them' to Daniel Stanton. In these deeds the former parcel was bounded beginning at the junction of the turnpike with the Lenox road, thence on the Lenox road five rods to a stake, thence south 4° west by land of Hinckley “ to a stake in the north line of the turnpike road, thence north 84° west four rods to the place of beginning; ” and Burrall, by a quitclaim deed, dated March 23, 1853, released to Stanton all his “ right in and title to the water of four springs, the springs and the land connected therewith necessary for the enjoyment and use of the same, being the springs mentioned and intended ” in the indenture between Woodbridge and Isaac Kellogg and his associates, “ and reserved in a deed of land to David C. Hull given by me dated February 9, 1846,” “ with all the rights of entering upon the land so conveyed to Hull for the purpose of taking away the water of said springs, laying down aqueduct pipe, repairing, or for the purpose of doing any other act or thing in any wise touching said springs or the land so conveyed to said Hull, which I reserved to myself in and by said deed.” The deed also quitclaimed and released to Stanton all the rights reserved by Burrall in his deed to Brown above mentioned, and also all his right, title and interest in the land over which the Lenox- road passed.</p> <p>There was evidence tending to show that Burrall, at the time of his giving this quitclaim deed to Stanton, had no real estate in Stockbridge, except a distant piece of swamp land. On December 19, 1860, Stanton conveyed to the plaintiff the premises conveyed to him by Adams by the deed of November 20,1851, and also all the rights, .privilege and estate conveyed to him by Burrall by the deed of March 23,1853.</p> <p>Woodbridge conveyed to Caleb Hyde his lot of land on the south side of the turnpike by á warranty deed dated February 20, 1833, and containing the following provisions: “ And .1 do also sell, assign and make over to the said Caleb Hyde, all the rights and privileges to which I am entitled by virtue of” the indenture of June 5, 1830, with Isaac Kellogg and his associates, “ to have water delivered by them at my barn yard and at my dwelling-house on the premises hereby conveyed to the said Caleb Hyde, and also the right of enforcing all the covenants and agreements contained in said indenture and obligation, on the parties of the second part, relating to the delivering of the said water to the two places above named, as fully as I now possess the same. And it is expressly understood and agreed by the parties to this instrument, that the above described land is hereby conveyed to the said Caleb Hyde, subject to all the rights and privileges granted in and by said indenture by me to the said Isaac Kellogg and others: and that the said Caleb Hyde, his heirs and assigns, will allow, do and perform all things which I, the said Woodbridge, am bound by said indenture to allow, do and perform in -relation to the aqueduct mentioned in said indenture, and to the water to be delivered at the two places aforesaid, and to the support of the said aqueduct and pipes, so far as they are connected with the above conveyed land, and with the conducting and delivery of the water at the two places above named.” The premises conveyed by this deed had become vested in the daughter of the defendant.</p> <p>In 1855 Stanton, who then owned the premises now belonging to the plaintiff, laid an aqueduct “taking the water of two springs on the Hull lot to said premises.” This aqueduct between the river and the Stockbridge and Lee road passed over other land of the defendant not hereinbefore described. At a conference with the defendant some time before the aqueduct was laid, Stanton claimed the right to lay the aqueduct, which the defendant did not admit; but the parties agreed that Stanton might lay down the line, as he afterwards did, on condition that the defendant might lay a pipe from the aqueduct to supply his house and barn, and in pursuance of this agreement the aqueduct and pipe were laid down and used, “ neither party waiving their legal rights in the premises.” When the plaintiff purchased her estate from Stanton she “ took two other springs into the aqueduct,” and continued to use it till July 1866, when she cut off the pipe leading to the defendant’s house, whereupon the defendant took up that part of the aqueduct which crossed his land between the river and the Stockbridge and Lee road, and forbade the plaintiff to interfere with the water of the springs.</p> <p>The plaintiff filed, on July 26, 1866, a bill in equity against the defendant to restrain him from disturbing her rights to the springs; but this bill was dismissed, as appears by the report in 12 Allen, 457, because she failed to show that, even if the defendant did break up the aqueduct, she had the right to conduct the water to her own land without trespassing on the land of others. The plaintiff had previously, on November 10, 1864, purchased a small lot of land, known as the Thompson lot, on the south side of the Stockbridge and Lee road, opposite the parcel called the triangle, above mentioned, conveyed to her by Stanton. The deed conveying this lot bounded it north on the Stockbridge and Lee road. By deed dated September 28,1866, the plaintiff purchased from Patrick Lawless a strip of land one rod wide leading from the south side of the Thompson lot to the river, there terminating opposite to the Hull lot. The plaintiff purchased this strip of land from Lawless solely for the purpose of obtaining a way by which she might lay her aqueduct from the Hull lot to her house, and she testified that when she bought this strip she “ knew there was a possibility of a lawsuit with the defendant, and a probability of it.” Soon after this purchase she changed the course of the aqueduct, carrying it across the Hull lot, the river, the strip purchased from Lawless the Thompson lot, the Stockbridge and Lee road, the triangle and the Lenox road, to her house. This new line left the line laid down by Stanton at a point on the Hull lot, and joined it again at a point on the Stockbridge and Lee road. On the same day on which this line was completed, the defendant broke it by taking up some pipes on the Hull lot.</p> <p>The aqueduct laid down by Stanton as well as that laid down by the plaintiff were carried under the Stockbridge and Pittsfield Railroad on the Hull lot. The president of the railrtiad company testified that he knew of no authority having been given to run the Stanton aqueduct across the railroad, but that he did not know that it disturbed the railroad and that he had never made any objection.</p> <p>Woodbridge, by deed dated September 25, 1865, released to the plaintiff “ all my rights and title to four springs of, and right of soil for laying aqueduct pipes, together with rights now possessed by me in ” the indenture between him and Isaac Kellogg and others of June 5,1830.</p> <p>The case was reserved by the chief justice, on the pleadings and master’s report, for the determination of the full court.</p>

<p>A landowner is entitled to the costs of an application, under the Gen. Sts. c. 63, § 22, for a jmy to assess damages for the taking of his land by a railroad corporation, if the jury find in his favor for any amount, though they assess the damages at a less amount than the county commissioners have done ; whether the jmy is applied for by him or by the railroad corporation. And such costs include the fees of the sheriff and jurors.</p> <p>In the costs of an application, under the Gen. Sts. c. 63, §§ 21, 22, to county commissioner) to estimate the damages to the owner of land taken by a railroad corporation, and for jury to assess the damages, there should not be allowed a term fee for the hearing before the commissioners upon the issuing of the warrant for a jmy ; nor, it seems, a term fee, attorney’s fee, travel or attendance, upon the original application before the commissioners.</p> <p>The costs’ of an application to county commissioners to estimate damages for the taking of land by a railroad corporation, under the Gen. Sts. c. 63, § 21, are to be taxed by the commissioners, and not by the superior court or this court.</p> <p>On an appeal to this court, by a railroad corporation, from the taxation of costs in the superior court on proceedings to assess damages to the owner of land taken by the railroad corporation had before a jury, whose verdict was returned into the superior court, the landowner prevailed upon the principal points in dispute. Held, that he should be allowed costs of the appeal, though some small items, which had been taxed by the superior court in his costs, were disallowed.</p>

<p>Contract to recover $125 as a bounty for service in the army of the United States. The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon a statement of facts of which the material part was as follows:</p> <p>“ The plaintiff reenlisted while in Virginia in January 1864, as a volunteer in the army of the United States, and caused his name to be credited to the quota of Chesterfield, Afterwards, while in that town upon a furlough, he had conversations with persons who were then the legally elected and acting selectmen of the town, a part or all of whom severally promised that he should receive for his enlistment the same bounty that others received, which was $125, but these conversations were had with said persons separately, and no action was ever taken by the selectmen when together, regarding the matter.</p> <p>“ At a meeting of the town held on April 11,1864, the following articles in the warrant were acted upon: Art. 2. 6 To see what the town will do in regard to raising money to procure recruits to fill the quota of this town under the last call of the President of the United States, or what order they will take.’ Art. 3. ‘ To see if the town will raise money to refund what has been paid by individuals under the last call for five hundred thousand men.’ The following were the votes passed thereon : Art. 2. £ Voted, to raise $125 for each volunteer required as a part of the quota of this town under existing calls of the President.’ Art. 3. £ Voted to raise $875 to refund moneys paid by individuals to volunteers.’</p> <p>“ At another meeting of the town, held on June 13, 1864, the following article was contained in the warrant: Art. 2. £ To see what sum of money the town will raise for volunteers or to hire substitutes for men who may be drafted into the service of the United States during the present year, or what order they will take thereon.’ On this article the vote was as follows: Art. 2. ‘ Voted, to raise the sum of $125 for each man that may be called for by the genera] government during the present year, and that the selectmen be authorized to assess a tax for the same amount.’ ”</p>

<p>If a person sells, for the purpose of being fed to a cow, part of a lot of hay on which he knows white lead to have been spilt, and the cow dies from the effect of the lead in the hay, he is liable for her loss, although he carefully endeavored to separate and remove the damaged hay, and thought that he had succeeded.</p> <p>•On the trial of an action for causing the death of the plaintiff’s cow by unwholesome food sold by the defendant, it appeared that a veterinary surgeon lived in the plaintiff’s neighborhood, and the defendant requested the judge to rule that if the plaintiff neglected to employ him the plaintiff could not recover; but it did not appear that the plaintiff knew of the surgeon. The judge ruled that, if the plaintiff knew the cow to be in danger of death, the plaintiff was bound to employ the best remedies within reasonable reach, at reasonable trouble and expense; and if the jury were satisfied that such remedies would have been effectual, and the plaintiff did not seek for their use, nor inform the defendant seasonably of the facts, the plaintiff could not recover. Held, that the defendant had no ground of exception.</p>

Tort for injury to land by obstructing a ditch on the defendant’s premises, through which the plaintiff had a right to drain. The defendant was defaulted. At the assessment of damages in the superior court by a jury, before Rockwell, J., it appeared that the ditch remained obstructed for three years, and that during this period the plaintiff’s land was injured by the obstruction.

<p>trader a declaration for slander, alleging that the defamatory words were spoken in the presence and hearing of “ divers citizens of the Commonwealth,” proof of a speaking in the presence and hearing of only one third person, not a citizen of the Commonwealth, is a fatal variance.</p>

<p>The plaintiff agreed with the defendant to take his pay, for work that he had already done for the defendant, in wood, then lying on the defendant’s land. On demand, the defendant declined to point out to the plaintiff what wood to take, but told him to take enough to satisfy himself. Held, that the agreement was no bar to an action for the price of the work.</p>

Contract on a draft drawn on J. H. Lyon & Brothers, a firm doing business in the city of New York, by the defendant, payable to his order, and by him indorsed to the plaintiffs. J. H. Lyon & Brothers accepted the draft payable at the Grocers Bank in said city.

<p>Indictment charging that the defendant, on August 1, 1868, and on divers' other days and times between that day and May 1, 1869, at Easthampton, “ knowingly, wilfully, and without having any legal appointment or authority therefor, did keep and maintain a certain common nuisance, to wit, a tenement in said Easthampton, then and on said other days and times there used for the illegal keeping and illegal sale of intoxicating liquors.”</p> <p>In the superior court, before the jury were empanelled, the defendant moved to quash the indictment for the following reasons : “ because no offence was set out in the indictment; because it was not alleged but that the liquors alleged to have been kept and sold by the defendant were such as the defendant had a right to keep and sell under the provisos of the St. of 1868, c. 141, § 1; because it was not alleged that the acts charged were to the common nuisance, &c.; because it was not alleged but that the defendant was licensed and authorized by law to keep and sell the liquors named in the indictment; because the indictment was uncertain and void; because it was not alleged that the tenement was used as alleged by the defendant, or with his knowledge; and because the law had been repealed which made it illegal to sell or keep liquors during the time named in the indictment.” But Scudder, J., overruled the motion, and on the trial refused a request of' the defendant for a ruling that it was incumbent on the Commonwealth to prove want of license and authority, and also another request of the defendant for a ruling that the law concerning the keeping and sale of intoxicating liquors in force during the time covered by the indictment had been repealed by the St. of 1868, c. 141.</p> <p>There being evidence tending to show sales of cider by the defendant, he asked the judge to rule that, if the jury were satisfied that the cider was not intoxicating, its sale was not prohibited by law; but the judge refused so to rule.</p> <p>A witness testified that the defendant delivered whiskey to him several times, during the period covered by the indictment, under the following circumstances: “ Several persons formed a club of which the defendant was a member; they advanced a certain sum of money each, which was put into a common fund; the defendant was chosen agent of the club, and under instructions of the club purchased liquors and refreshments for the club; the fund was taken by the defendant and invested for them, and, a certain number of checks, of the amount of five cents each, were delivered to each member of the club, to the extent of the money advanced by each ; these checks were transferable only to other members of the club; upon presentation of the checks by any member to the defendant, he would deliver to that member liquor of the club, to the amount of the check presented ; on several occasions the defendant had delivered liquor to the witness, as such member, upon checks; upon distributing the liquor in the manner aforesaid, it was calculated that the liquor would so far overrun the amount to be delivered upon the checks, as to leave in undelivered liquor about twenty per cent, of the original cost; and the defendant was to have this residue, to compensate him for his services as agent, and for the use of' his room by the club.”</p> <p>“ The presiding judge, in view of all the evidence, ruled that, if the liquor in the defendant’s possession was bought by him as agent of the club, and the liquor so purchased was that of the club, the members advancing the money to purchase the same, and if checks were distributed to each of the members according to the amount advanced by each, and the- defendant was a member of the club, and delivered to each member upon presentation of such checks, from time to time, the amount of liquor represented by such checks, that would be a sale by the defendant.”</p> <p>The jury found the defendant guilty, and he alleged exceptions.</p>

<p>The offence of keeping and maintaining a common nuisance, in violation of the Gen. s. c. 87, § 7, is local, and its place must be proved as laid in the indictment.</p> <p>On the issue whether a tenement is in one town or another, the location of the line betwi m the two towns may be proved by the testimony of a person who lives near it and *1 /-a run it when measuring his own land; without producing the records of perambulate ti by the selectmen.</p> <p>The records, not ancient, of assessors are inadmissible, in suits between third parties, /so prove the locality of real estate.</p> <p>The conviction of a man for keeping and maintaining a tenement as a nuisance in violat n of the Gen. Sts. c. 87, § 7, during a certain period, is no bar to the conviction of his ti i'b for committing a like offence during the same time in the same tenement.</p> <p>After conviction on an indictment for keeping and maintaining, as a common nuisance a tenement used for the illegal keeping and sale of intoxicating liquors, a bill of exceptii ns was allowed by which it appeared that the defendant contended during the trial ti .it there was no sufficient evidence that the tenement was in the place alleged, and also c intended that the conviction of her husband for a like offence was a bar to her convict! n; that the judge ruled that such conviction of her husband was no bar, and that, if the jv.ry found the tenement to be in the place alleged and that the defendant used the prem sea in question for the illegal keeping and sale of intoxicating liquors within the period m.rationed in the indictment, and not coerced by her husband, they might find her guilty; and that the defendant excepted generally to these rulings. Held, that it was not open to the defendant on this bill of exceptions to raise the objection that the ruling was erroneous in allowing the jury to convict upon proof of merely using the tenement for the illegal purpose without proof of keeping and maintaining it.</p>

<p>Indictment for manslaughter, with three counts, each alleging that the defendant on October 6, 1868, at Greenfield, “feloniously and wilfully” struck Walter S. Coombs on the left side of his head with “a whipstock,” and the death of Coombs ensued from the injury given by the blow; and the first count describing that injury as “ one mortal wound,” the second count as “ one mortal bruise,” and the third count as “ one mortal fracture, of the length of three inches, of the breadth of one quarter of an inch, and of the depth of two inches.”</p> <p>At the trial in the superior court, before Dewey, J., before the jury were empanelled the defendant moved to quash the whole indictment, as “ too uncertain and indefinite,” “ because the instrument used is not sufficiently described,” and “because no such article as is named is known as such ; ” and to quash the first and second counts, “ because the wound and bruise named therein are not described with sufficient particularity and precision,” and the third count, “ because the description of the fracture is too general and indefinite.” This motion, and also a motion that the Commonwealth should elect upon which count to try the defendant, were overruled.</p> <p>“ The Commonwealth offered evidence tending to show that Coombs was at work with a shovel, filling up the ruts in a driveway leading from a highway in Greenfield, on the morning of October 6, and the defendant was driving along the highway • that Coombs twice requested the defendant to stop, which he did; that Coombs accused the defendant of stealing a wagon-wheel, and the defendant told him that if he accused him of stealing again he would knock him down ; that Coombs repeated his statement in less offensive form, and thereupon the defendant reached behind, took up his whip from behind him, clasped it at about the centre of the handle, which was of walnut wood, and struck Coombs a single blow upon the head, which felled him; that he was assisted by the defendant and others, the defendant saying he was sorry, and going for the d Dctor, and rendering other assistance; and that Coombs died in the afternoon of the next day from compression of the brain, caused by said blow.</p> <p>“ The Commonwealth contended, and offered evidence, that ( bombs offered no violence to the defendant, and that the defendant’s stroke was given for the words spoken by Coombs to the defendant, and for no other cause. Several witnesses testifi 3d to declarations of the defendant tending to confirm this evidince. One of the witnesses for the Commonwealth testified that, on the evening of October 5, Coombs said he had obtained evidence that the defendant took his wheel, and he was going to 1 pitch into ’ the defendant the next morning; and that he saw Coombs the next morning, at the place where the stroke was given, and Coombs told him that he was ‘watching for’ the defendant.</p> <p>“ The defendant, among other matters, relied upon self-defence for justification ; and testified that he was driving along by, the place, where Coombs stood by the side of the road, (the place being near the centre of a steep, long hill which the defendant was ascending with a slow horse,) and, as he passed, he said, ‘ Good morning, Coombs; ’ that Coombs ordered him to stop that he told Coombs he was in a hurry and could not stop; that Coombs again told him to stop, and went to his horse’s head, and raised a shovel, which he had in his hand, in front, of his horse, and stopped him; that Coombs then came up to his wagon, close to the place where he sat, and said to him that he wanted him to settle for the wheel he stole; that he told Coombs not to tell him he stole, or he would knock him over; that thereupon Coombs repeated the accusation, and raised his shovel as if to strike him; and that when Coombs raised the shovel he struck him with the whiphandle, which he had in his hand. He testified he did not reach for his whip, but held it in his hand all the time; that his horse was lazy, and slow to start, and he could not have got out of the way of Coombs’s attack.</p> <p>“ The counsel for the defendant then proposed this question: ‘ For what did you strike him ? ’ stating that they expected that he would give, - as the reason why he did it, because he, the défendant, thought deceased was going to strike him; but the judge. excluded the inquiry. The defendant’s counsel asked him where be intended to hit Coombs, saying they expected to prove that he only meant to hit his shoulder, and not his head ; but the judge excluded this inquiry also.</p> <p>“ The Commonwealth introduced, in reply to the defendant's testimony, several witnesses, who testified that the defendant narrated to them the transaction soon after it occurred, and did not state anything about the shovel being raised against him. In reply to-this, the defendant offered to prove, by another witness, that, within an hour or two of the transaction, he told him about the affair, and told him Coombs did attempt to stril e him with the shovel; but the judge excluded the evidence.</p> <p>“ The defendant’s counsel contended that the defendant’s blow was given in self-defence, and that he had reasonable cause to apprehend great bodily harm. The attorney for the Commonwealth argued to the jury that the defendant did not apprehend violence, but struck the blow to chastise Coombs for the words spoken. The defendant contended to the jury, as matter of law, and asked the judge to rule, that, if the defendant reasonably apprehended bodily harm and danger, he had a right to defend himself by a blow of reasonable force and proper character, although the jury should be satisfied at the time of trial, looking backward, that in fact Coombs did not intend violence, and that it was not reasonably necessary for the defendant’s defence to strike the blow. The judge did not give the instructions in the form asked; but instructed the jury that a person may use the force necessary to defend his person and prevent impending danger; and that, unless the defendant, at the time he struck Coombs, under all the circumstances of the case, had reasonable cause to believe that it was necessary to protect his person, and that the blow was given by him for that purpose, he is responsible for the consequences of the blow.</p> <p>“ The defendant further asked the judge to rule as follows: < Supposing that the defendant made an assault on Coombs and death ensued; if death was not the usual, natural, ordinary or probable consequence of the assault, the defendant cannot be convicted of manslaughter.’ And the defendant contended that there was evidence to support this prayer. The judge ruled as follows: ‘ If the defendant committed an assault and battery on the person of Coombs, without justifiable cause, and death ensued therefrom, it is manslaughter.’</p> <p>“ The defendant further asked the judge to rule that ‘ the indictment charging the defendant with having wilfully caused Ihe death of Coombs must be sustained by proof of wilful killing.’ The judge ruled as follows : ‘ It is not necessary, in order to find the defendant guilty under this indictment, that the Commonwealth should prove that it was the intention of the defendant to cause the death of Coombs; it is only necessary for the Commonwealth to prove that he wilfully struck the blow without justifiable cause, and from that blow death ensued.’ ”</p> <p>The jury returned a verdict of guilty ; and the defendant alleged exceptions.</p>

Indictment charging the defendants in three counts, with three different larcenies.

<p>Contract for the price of intoxicating liquors sold by the plaintiff to the defendant. Writ dated May 25,1868.</p> <p>At the trial in the superior court, before Brigham, J., there was evidence that the plaintiff was a liquor dealer in the city tof New York; that in April 1866, his clerk, William D. Adams, procured from the defendant, at Shelburne Falls in this Commonwealth, an order for the liquors, and communicated it to the plaintiff; and that the price of the liquors was agreed upon at the time of procuring the order.</p> <p>The question was disputed whether or not it was agreed between the clerk and the defendant that the plaintiff should deliver the liquors at Shelburne Falls ; and the defendant testified that it was so agreed. In behalf of the plaintiff, (after the introduction of certain depositions, including his own and the clerk’s, tending to prove a contract of sale of the liquors, completed in New York by the delivery of the four kegs containing them marked <^>, to a common carrier in that city, on April 23, 1866,) Hoyt E. Howard, the freight agent at Greenfield of the Connecticut River Railroad, Lazarus C. Pratt, formerly a bookkeeper in the Greenfield freight depot, and John Smith were called as witnesses, and Howard identified certain books, including a freight receipt book and a cash book, as “the regular freight business books of said road,” Pratt testified that he kept these books in April 1866, and entered the way bills into the freight receipt book after they were checked by some person who received and checked off the freight, and Smith testified that “ at the time in question ” he was employed in said depot, and was in the habit of checking off freight upon the way bills and handing to Pratt the bills as checked.</p> <p>Pratt further' testified to the following entry on the freight receipt book as being in his handwriting; and that he did not recollect the transaction.</p> <p> </p> <p>He also identified the following entry on the freight cash book as in his handwriting; and testified that “ the figures 26 indicated the date when the goods were received, for the payment of freight on which this entry stood.”</p> <p> </p> <p>“ The preceding page of the cash book bore date April 30 following entries during the month of April in- their regular order; and the succeeding page bore date May 2, altered to April, as in the entry testified by the witness. The book closed on the second page following; and on the last page were five entries of April 30, and two entries of May 12.</p> <p>“ Pratt was then asked by the plaintiff, ‘ Have you any doubt that these entries are correct, and that the transaction therein recorded took place ? ’ This question was objected to, but allowed by the judge; and the witness testified that he had no doubt. The plaintiff thereupon offered the said books and entries, and, against the defendant’s objection, was allowed by the judge to read the entries, and these only, to the jury in evidence. The defendant did not ask that the book should be put into the case if the entry was admitted. To the admission of the entry from the cash book the defendant specially objected, that it showed an alteration, and that the entry as altered was immaterial; which objection was overruled.</p> <p>“ The defendant testified that he never received the liquors; but there was further evidence on the part of the plaintiff tending to show that the packages indicated by the entries had been delivered to the defendant at Shelburne Falls, and that he had paid to a teamster the freight thereon, as an item in a monthly bill for teaming from Greenfield to Shelburne Falls.</p> <p>“At the conclusion of the trial the judge presented to t.le jury, with instructions not objected to, four questions, on each of which the evidence was conflicting, and directed them to find an answer to each question, and return into court for instructions. These questions and their answers were as follows: 1. ‘ Was the merchandise, for which the plaintiff sues to recover the price, in this action, delivered to the defendant? ’ Answer, ‘ Yes.’ 2. ‘ Was the contract of sale, between the plaintiff and the defendant, made in Massachusetts or in New York ? ’ Answer, * New York.’ 3. ‘ Did the plaintiff know that the defendant made the contract of sale, intending to sell the liquors in violation of the laws of Massachusetts ? ’ Answer,6 No.’ 4. ‘ Did the plaintiff, under the circumstances attending the contract of sale, have reasonable cause to believe that the liquors, sold by him to the defendant, were to be brought into Massachusetts for the purpose of being sold here in violation of law ? ’ Answer, 6 Yes ’</p> <p>“ On the return of the jury with their findings on the questions, the presiding judge ruled that the facts found by the jury did not constitute a defence to this action, and directed a verdict for the plaintiff, which the jury returned.” The defendant alleged exceptions.</p>

<p>A trustee who deposits in a bank, and causes to be credited to his private account, money of the trust fund, without giving any notice that it is not his private property, or making any special agreement in regard to it, thereby converts it to his own use; so that the bank, in the absence of any notice that it is not his private property, may apply it as such.</p>

<p>Contract on two promissory notes signed by Charles W. Stoekbridge, payable to the order of Franklin Ballard, indorsed by Ballard and the defendant, and discounted by the plaintiffs for Ballard. The answer set up want of notice to the defendant of the presentment and dishonor of the notes. Trial in the superior court before Devens, J., who allowed the following bill of exceptions:</p> <p>“ It appeared that the defendant was an accommodation indorser at the request of Ballard, and for his benefit, and that this fact was known to the bank when the notes were discounted. The only question submitted to the jury was, as to the sufficiency of the notice to the defendant of the dishonor of the second note. This note was dated April 5, 1866; was payable at the office of the maker, in the city of New York, in three months from its date; and was protested in New York on July 7, 1866, July 8 being Sunday.</p> <p>“To prove notice to the défendant of the dishonor of the note, the plaintiff, in addition to testimony tending to show that the defendant, in several interviews on the subject of payment, did not object to any want of notice, or claim that he was not notified, introduced the following evidence from the deposition of George W. Warren, cashier of the plaintiff bank: c In due course of mail after the maturity of said notes and each of them, I received from Myron Winslow, a person representing himself in the notices to be a duly qualified notary public in New York, on different dates, notices of the nonpayment of each of said notes. There were three notices relating to each of said notes, which were respectively addressed to Franklin Ballard, William P. Townsley, and myself as cashier of the bank. Said notices were in writing or print. I cannot give the exact date when said notices and each of them were by me sent to Townsley, but they were, upon the receipt of the same from Winslow as stated, immediately sent by me to Townsley. They were each put in the Shelburne Falls post-office, and were directed, as nearly as I can remember, respectively thus, “ Wm. P. Townsley,.Esq., Shelburne Falls, Mass.”’</p> <p>“ The plaintiffs also introduced the testimony of Alfred Bowen, postmaster at Shelburne Falls at the time of the dishonor of said note and since, who testified that, at that time, the defendant lived in Buckland, about half way between the post-offices of Shelburne Falls and Buckland, was in the habit of visiting Shelburne Falls constantly and frequently, and was in the habit of receiving mail matter at that post-office as well as at Buckland; and further stated, ‘ We got our mails at Shelburne Falls from New York in the evening.’ The witness, on cross-examination, stated that, in 1866, ‘ due course of mail ’ from New York City would bring a letter leaving New York by the early morning’s mail to Shelburne Falls the same evening; and this was the only evidence in the case on this point.</p> <p>“ The defendant testified that he received the notice of the dishonor of the note at the Shelburne Falls post-office, and that he could not state the day of its reception; and on cross-examination said, ‘ I never knew (or said) but I was notified all right, I didn’t know.’ He further testified that Warren, the cashier, knew his residence at the time of the dishonor of the note ; and that he received letters at both the post-offices named, no more at one than the other, though Buckland, as his residence, he considered his true post-office address. He then produced the notice received on the dishonor of the note, and the envelope in which it was received. The notice was in due form, and was dated ‘ New York, July 7, 1866.’ , The envelope was addressed 6 Wm. P. Townsley, Esq., Shelburne Falls, Mass.,’ and bore the postmark ‘ Shelburne Falls, Mass., July 12,1866.’ It was stamped on the face with a three cents postage stamp, and bore on the back a seal or stamp of the plaintiff bank.</p> <p>“ The defendant asked the judge to rule that the notice addressed and mailed by Warren to the defendant at Shelburne Falls was not a sufficient notice. This he refused to rule ; but instructed the jury that, if the defendant was in the habit of receiving letters at both of the post-offices named, the notice would be. sufficient, if addressed and mailed to him at Shelburne Falls. To this ruling the defendant excepted.</p> <p>“ The plaintiffs’ counsel argued to the jury, that the plaintiffs’ cashier acted with due diligence, if he placed the notice in the office on July 11; and that, if he did so, it might bear the postmark for the mail of the 12th. The defendant’s counsel, at the c ose of the charge, (to which no exception was taken save as above,) requested the court to rule that the legal presumption is that the date of the postmark on a drop-letter is that of the day it is placed in the post-office; which ruling the judge refused to give, but left the fact that such was the postmark upon the letter as one to be considered in determining whether the notice was actually mailed.</p> <p>“ The judge had previously instructed the jury that the plaintiffs must satisfy them that the notices were seasonably forwarded by the notary in New York to the cashier of the plaintiff bank, and by the cashier, after the reception thereof, seasonably put into the post-office directed as above; that the burden of proof was upon the plaintiff all the way through ; and that, if the notices were received by the plaintiff bank before the 11th, the jury must be satisfied that notice was put into the post-office prior to the 12th, as indicated by the postmark upon the envelope introduced by the defendant.”</p> <p>The jury found for the plaintiffs; and the defendant alleged exceptions.</p>

<p>Writ of entry to recover a messuage in Conway. At the trial in the superior court, before Devens, J., “ it appeared in evidence that the plaintiff obtained title to the premises in May 1851, by deed from John Ames, said premises consisting of a small house-lot, upon which in 1852 he erected a dwelling, the whole being then, and ever since, of less than $800 in value; that he then had a wife and several minor children, and they continued to reside upon the premises, having no other estate, until 1865. The original title, as aforesaid, was undisputed. The defendant claimed title by virtue of Úeeds from Morony and wife to John Fitzgerald, dated May 12, 1858, and from John Fitzgerald to himself; and introduced the deed, and the record copy of the same, of May 12,1858, which purported to be signed by Morony and his wife. The plaintiff contended that the said deed was never signed by the wife or executed by her; the defendant contended it was; and the only question on trial was the validity of said deed. The plaintiff called his wife as a witness, and proposed to prove by her that she never signed the deed, he first testifying she never did sign or execute it in his presence. The judge excluded the testimony; the jury found for the defendant; and the plaintiff alleged exceptions.”</p>

<p>It seems, that no particular amount of property is necessary to give the probate court jurisdiction to grant original administration in this Commonwealth.</p> <p>A debt due to a resident of another state from a person who removes into this Commonwealth after such creditor’s death, will authorize the probate court of the county into which the debtor has removed to grant administration on the estate of the creditor.</p> <p>The payee of a promissory note who indorses it for the accommodation of the maker may take it up at maturity without waiting for demand and notice as indorser, and sue the maker thereon.</p>

<p>A lease of land foi years, given, during the absence of the landowner from the country, by an agent having authority only to “ take charge of the land while he was gone, and make it pay the best way he could,” is terminable by the landowner on his return.</p> <p>A wooden ice-house, large enough to hold upwards of two thousand tons of ice, built on leased land by the lessee, upon no foundations except a wooden block under each comer of the sills, which are set into the ground, upon a layer of charcoal, at a depth varying with the surfsir of the land from *ix inches to three feet, and banked on the outside with soil to prevent the air from Wculating under them, is a fixture which the lessee may remove.</p> <p>On a trial of the issue whether a tenant at sufferance removed a fixture within a reasonable time after the landlord’s demand for possession, it appeared that the fixture was an ice-house, which at the time of the demand contained upwards of two thousand tons of ice, that, except by the sale of one hundred tons in a lot, the ice was not carried away, after the demand, faster than was necessaiy for the daily supply of the tenant’s customers that nearly or quite two months were consumed in removing-it in this manner, but it would have become porous and of little value if it had been transferred to another building at that season of the year; and that the building was removed without delay after the removal of the last of the ice. But the landlord “ offered no evidence that the tenant could in any way have got the ice out faster than he did, or could have removed the building quicker,” and the landlord himself and other witnesses “ testified that the tenant get the ice away as soon as possible after the demand for possession.” Held, that the judge was not warranted in ruling that the building was not removed within a reasonable time.</p>

Bill in equity filed February 25,1869, by the grantee of real estate in Springfield, consisting of a lot of land with a building thereon, to enjoin a tenant of the grantor, subject to whose lease the plaintiff bought the premises, from removing some bowling alleys from the building. An interlocutory injunction was granted; and an answer filed in which the defendant claimed the right to remove the alleys as trade fixtures.

Bill in equity filed at April term 1869, alleging that on November 17, 1862, the defendant owned a lot of land in West Springfield, then and ever since occupied by the plaintiff, and described in the bill by metes and bounds; that on the day named he bargained and sold this lot to her for twenty dollars, and she paid him therefor; and that on said day he signed and delivered to her the following agreement in writing, but ever afterwards neglected to give her a warranty deed…

<p>Two persons, jointly indebted at the time to various creditors, formed a partnership with another person, and mortgaged to one of these creditors their interest in the firm to secure his debt, which was on a promissory note. Soon afterwards, the two being bankrupt, the partnership was closed, and a receiver appointed, in whose hands, after settling the affairs of the firm, there remained a balance to their credit, derived from sales of the mortgaged property. On an issue between the assignee of their estates in bankruptcy and the mortgagee, Held, that this balance was payable to the mortgagee in preference to their creditors whose debts were not secured; and that the fact that, for additional security of the note, he had previously taken another mortgage from a third person who was liable thereon as surety, did not affect his right to the preference.</p>

Tort for injuries sustained by the plaintiff from the falling upon her head, as she was travelling on the sidewalk of Main Street in Springfield, of a brick dropped by an alleged servant of the defendant from a staging in front of a building adjoining the sidewalk.

<p>The provision of the Gen. Sts. c. 70, § 20, subjecting to a penalty “ whoever” brings a pauper into any town in the state where he is not lawfully settled, knowing him to be poor and indigent, and intending to charge the town with his relief or support, applies to public officers as well as private persons.</p>

Tort for deceit by false representations in the matter of an exchange of lands between the plaintiff and the defendant. Trial in the superior court, before Putnam, J., who directed a verdict for the defendant and allowed a bill of exceptions in substance as follows: The parties exchanged conveyances of their respective lands on August 23, 1867, and the representations relied on to sustain the action all had reference to the land conveyed by the defendant.

<p>Tort by a live stock insurance company, to recover frai i Matthews and Bela Coomes $396 alleged to have been paid I Matthews by the plaintiffs under a policy which they had issue 1 to him on the life of a horse, and relying in making the paymei t on false and fraudulent representations concerning the healt i and value of the horse, made to them by the defendants wifh intent to cheat and defraud.</p> <p>At the trial in the superior court, before Vose, J., there was evidence that the plaintiffs were incorporated under the laws of Connecticut, and it was not disputed that they were a foreign insurance company. There was also testimony that on Octo ber 18, 1866, they were not restricted, by their charter or other wise, from incurring any greater hazard in one risk than one tenth of their unimpaired capital; and there was no evidence whether oi not they had in writing appointed a citizen and resident of Massachusetts general agent. See Gen. Sts. c. 58 §§ 66, 68.</p> <p>It appeared in evidence that the contract for the insurance on the horse was made by Matthews at Springfield, with Joram Porter, an agent of the plaintiffs there residing, and the policy was issued October 18, 1866; and that the horse at the time of the insurance was in Longmeadow, where Matthews lived. The false representations relied on by the plaintiffs were contained in the application made by Matthews for the insurance, representing that he was the sole owner of the horse, and that it was sound and was worth $600; and also in a proof of loss, sworn to by him on June 28,1867, making the same representations, further representing that the horse had died without fault on his part, and accompanied by an affidavit of James K. Coomes and the defendant Bela Coomes to the same effect.</p> <p>Matthews testified that he took this proof of loss to Porter; and that Porter, on learning that Bela Coomes was the father in law of Matthews, said that another affidavit must be furnished, whereupon on June 29 he furnished an affidavit made by John Smith and Tobias Almquist. There was evidence tending to show that the plaintiffs had this second affidavit, as well as the affidavits of Matthews and James K. and Bela Coomes, when they paid the loss; and their vice-president testified that, if they had it then, they must have paid the loss by reason of the whole proof, that it was of itself .sufficient proof for the payment, and that the plaintiffs would ordinarily pay a loss on such proof. But they also introduced evidence tending to show “ that all the aforesaid representations relied on by them were false, and that they were thereby induced to part with their money.”</p> <p>The plaintiffs introduced evidence tending to show the uneoundness to consist in the horse being wind-broken. The defendants introduced evidence tending to show that it was not wind-broken; that the only difficulty was that it whistled ; that it was capable of service and use; that its value was unim paired thereby; and also that its value was as much as $600, The plaintiffs introduced evidence' tending to contradict this. The amount for which the horse was insured was $400. The horse died from typhoid fever, and there was no evidence that the death was attributable in any way to said claimed unsoundness. Matthews further testified that he saw that something was the matter with the horse, the second time he drove it; that it made a little noise, but the noise did not increase up tó the time of the death; and that he did not think that the horse was wind-broken.</p> <p>“ The defendants asked the judge to rule, that the plaintiffs could not recover, because it appeared that the insurance was effected and the contract made in violation of the Gen. Sts. c. 58, § 66. But for the purposes of the trial the judge instructed the jury that there were no facts disclosed which would prevent the plaintiffs from maintaining the action in consequence of any such violation of the General Statutes.</p> <p>“ The defendants also asked for instructions, that the plaintiffs must prove not only that the representations relied on were untrue, and that the company were thereby induced to part with their money, but that each defendant knew that the representations by him made were untrue; that, if the company paid the money on said loss not wholly on the strength of the proof of loss offered by Matthews with the affidavit of James K. Coomes and Bela Coomes, but a subsequent affidavit was made by other parties, and upon the inducement and strength and by reason of both affidavits the money was paid, then the plaintiffs could not recover; that, if the company would' not have paid the money but for the last affidavit, the plaintiffs could not recover; that, if Matthews believed that the horse was worth $600, though unsound, he was not liable; and that, if Matthews knew that the horse whistled, but did not know or believe that it made the horse unsound, the action could not be maintained against him for false representations as to soundness, because of said whistling.</p> <p>“ The judge refused to give any of the above rulings, and instructed the jury as follows: If these defendants, o.- either of them, signed these written statements, knowing that they were to be used to induce the plaintiffs to pay Matthews the insuranee on the horse, and signed them intending to induce the plaintiffs thereby to pay the money, and the plaintiffs were induced by these statements to make the payment, and the statements were untrue, the defendants are liable, although they may not have read or had read to them the statements so signed, and may not have known the contents of the statements ; and they would be so liable, although the plaintiffs did not rely entirely on these statements, but were partly induced by other statements or proofs to make the payment. If the plaintiffs so far relied on these statements, that they would not have paid the money had it not been for these statements, the defendants would in law be responsible. Also, that, although the horse may have been worth $600 at the time of his death, yet, if the plaintiffs were induced to pay the money by the false statements contained in the papers signed by the defendants, they are entitled to recover the money so paid.</p> <p>“ The judge submitted to the jury the special question of the value of the horse, in addition to the general verdict. The jury found for the plaintiffs as to Matthews, and disagreed as to Coomes; and found also that the value of the horse was $100; and Matthews alleged exceptions.”</p>

<p>In an action op. a policy of insurance on the life of a person who voluntarily killed himself, which was provided to be void if he should “ die by suicide,” the plaintiff, “ in order to take the death out of the proviso,” offered to prove that K the assured at the time of committing the act of self-destruction was insane, that he acted under the influence and impulse of insanity, and that his act of self-destruction was the direct result of his insanity; ” but the judge ruled that such proof would not entitle the plaintiff to recover, and directed * verdict for the defendants. Held, that the plaintiff had no ground of exception.</p>

<p>A. policy insuring the mortgagor of a chattel against loss thereof by fire, expressed to be void “if the title of the property is transferred or changed,” and providing that “ the entry of a foreclosure of a mortgage shall be deemed an alienation of the property,” is avoided by any act which, of itself, and without any further formality or process on the part of the mortgagee, will deprive the assured of all right and title in the chattel unless he shall pay the debt* such as the giving and recording, under the Gen. Sts. c. 151, §§ 6V 7, of notice of intention to foreclose the mortgage for breach of its condition.</p>

<p>Trustee process. The only issue in this court, on appeal from the superior court, was upon the question of charging Elbridge Barton as trustee of the principal defendant, on these facts agreed:</p> <p>Dwight Cooley, the principal defendant, was employed as a workman for Barton, and at the time of the service of the writ on Barton had earned as wages in the course of his employment $147, which were in Barton’s hands, and were liable to this process unless Hezekiah Cooley, who appeared as claimant, was entitled to them under the following order and acceptance, which order was never recorded, was given before the said wages were earned by Dwight Cooley, and was intended to apply to said wages, namely: “ Springfield, August 15, 1868. Mr. Barton : Please pay to Hezekiah Cooley my wages as fast as they become due, to the amount of $150. Dwight Cooley. Accepted, E. Barton.”</p>

Trustee process on an account annexed for the price of groceries sold to the principal defendant.

<p>Contract for the price of a hog. Trial in the superior court before Rockwell, J., who allowed the following bill of exceptions “ The plaintiff kept for sale a number of hogs; and the defendant bought and sold at his market meat and provisions. On November 9,1868, the defendant’s clerk was informed that the plaintiff was killing hogs, and if ordered would kill and send one to the defendant’s market the next morning; and there was evidence that at the same time the clerk was informed by the plaintiff that the weather was bad for killing, and he should kill no hogs in that weather unless ordered. The defendant accordingly, by Thomas Dewey, sent a message to the plaintiff; which message, according to the testimony of the defendant’s witnesses, was to send to the market, in the morning, a good and heavy hog; but, according to the testimony of the plaintiff’s witnesses, it was to kill that night for the defendant a good fat hog, to be delivered at the market the next morning. Dewey, not finding the plaintiff, requested the plaintiff’s son to deliver the message. The son told the plaintiff that the defendant ordered killed that evening a good hog, to be delivered at the market in the morning. By order of the plaintiff, Job McMasters, employed by the plaintiff, selected a hog, which he killed in the evening, cutting it down the back a few inches below the shoulder, and carried it to the defendant’s market in the morning ; and it appeared that, when it was brought into the market, it was not all sound pork, but was damaged by heating. On November 9 the weather was warm and damp ; and there was evidence that a hog killed in such weather is liable to damage by heating, and that, if it is cut down the entire length of the back, it is less liable to such damage; but there was evidence tending to show that, at the time the hog was delivered, it was not injured at all by reason of not being cut down the entire length of the back. It was conceded that the price which the plaintiff sought to recover was the price of pork agreed upon by the parties when the order was given.</p> <p>“ The defendant asked the judge to instruct the jury as follows : If the defendant ordered a good hog to be killed in the evening and delivered at his market in the morning to be sold for the food of man, and it was unwholesome when brought into the market, unless the plaintiff satisfies the jury that he selected a good hog, and it was properly slaughtered and cared for till left at the market; or if the defendant ordered a good hog to be sent in the morning, and the hog, when left at the market, was sour and unwholesome on account of the weather, or by reason of any neglect of the plaintiff in selecting, killing and taking care of the hog, the plaintiff can recover' only its value at the time it was left at the market. If, considering the state of the weather, the hog should have been cut down the back to permit the escape of animal heat, and, in consequence of the plaintiff’s neglect so to cut the hog, it became sour before it was delivered, the defendant is liable only for what it was worth when left at the market.</p> <p>“ The judge declined to give instructions in the above form, but instructed the jury as follows : If the jury are satisfied that the defendant, by message through Dewey, ordered of the plaintiff a good hog to be killed that night and delivered the next morning; and if, in pursuance of that order, the plaintiff, with proper care, selected a good hog, and killed it that night and delivered it the next morning in due season, substantially according to the order, the plaintiff using due and ordinary care in killing, taking care of it over night, and conveying it to the market; the plaintiff may recover the full value as sound pork, notwithstanding that the pork was heated when delivered, if the bad condition of the pork was entirely due to the effects of the weather; but if the bad condition of the pork was in whole or in part due to any negligence of the plaintiff in executing the order, or if the order was merely for a good hog, which was injured by the weather, he can only recover the value of the pork, as injured, at the time it was brought into the defendant’s market. The verdict of the'jury was for the full amount claimed by the plaintiff, and the defendant excepted.”</p>

<p>Contract on the following promissory note *. “ Springfield, Nov. 14, 1866. Ninety days after date I promise to pay to the order of John Hooker $700, value received.” Signed, “ Mrs. M. L. Perry.” Indorsed, “ Samuel Hubbard.” The answer, besides a general denial, alleged that the plaintiff obtained and was retaining possession of the note fraudulently; that the defendant “ signed a blank note of the same date and amount as „he note declared on, and delivered the same to Mrs. M. L. Perry, agent of the plaintiff, which said' note, it was agreed between the plaintiff and the defendant, should be made payable to the plaintiff, and by him be first indorsed, and the defendant should be liable thereon as cosurety only, and not as indorser; ” and that, 61 previously to the execution of the note in suit, the defendant indorsed a certain note for the accommodation of the plaintiff, and afterwards signed the note in suit as and for a renewal of said first signed note, and it was expressly agreed by the plaintiff and the defendant that the defendant should be held as accommodation indorser only on said first named note, and in accordance with the foregoing he signed this note in blank under an agreement with the plaintiff that the plaintiff should sign the same above the defendant’s name, and the same should be negotiated and the proceeds applied to take up said first named note, and this should be in renewal thereof.”</p> <p>At the trial in the superior court, before Brigham, J., it was admitted that the note in suit was the same note relied on by this defendant in defence of a former action against him by this plaintiff, reported 97 Mass. 175, upon a promissory note signed by Mrs. Perry and dated September 10, 1866, for $700, payable two months after date to the order of this defendant, a" d indorsed by him and also by the plaintiff; the record and all the proceedings in the former action were put in evidence “ and the following facts were admitted, or proved by paroi evidence, in relation to the note in suit: On September 10, 1866, Mrs. Perry made the note declared upon in the former action payable to the defendant, and the same was indorsed by the defendant and afterwards by the plaintiff. On November 14, being the day after said note fell due and had been protested, the plaintiff said to Mrs. Perry that, if she would go to Hartford and get the defendant’s note, payable to the plaintiff, for the amount of the note of September 10, the plaintiff would indorse it, and with it take up the note of September 10, then in the bank. Mrs. Perry went to Hartford, and so stated to the defendant. He refused to sign such a note, but afterwards indorsed his name on the note in suit, and delivered it to Mrs. Perry, with the direction and understanding that the plaintiff should sign as maker and indorse it before it should be used as a note. Mrs. Perry communicated this direction and understanding to the plaintiff, who refused to sign or indorse the note, or receive it for the purpose of taking up said note of September 10. After-wards Mrs. Perry signed the note, and delivered it to the plaintiff for a separate consideration. The defendant also offered paroi evidence tending to prove that the note of September 10 was indorsed by the defendant for the accommodation of the plaintiff; but the plaintiff denied that such was the fact. The defendant also offered evidence which he contended would tend to show that the note of September 10 was given for the benefit of the plaintiff and the defendant, and that they were cosureties on the same.”</p> <p>“ The plaintiff objected to all the foregoing paroi evidence, and contended that the defendant was estopped by the judgment in the former action from setting up any defence inconsistent with the facts as exhibited and claimed in the record of the former action; but the judge admitted the evidence. The defendant then asked the judge to rule that, upon the admitted and proved facts in the case, the plaintiff could not recover; that, the note having been delivered upon a condition of which the plaintiff had knowledge, and that condition never having been fulfilled, it never became the note of the defendant, and could not be enforced by the plaintiff as a note. The plaintiff contended that, whatever might have been the character of the note in its inception, and however fraudulent the acts of Mrs. Perry in signing, or of the plaintiff in receiving the same, the defendant had, by his proceedings in the former case, ratified their doings, and made the note in suit his own note, and could not now set up any defence invalidating the same. But the judge ruled in accordance with the defendant’s request, and directed the jury to find for the defendant.” They returned a verdict in conformity with this direction; and the plaintiff alleged exceptions, which were argued at September term 1868.</p>

Contract on a promissory note made by the defendant April 6,1866, under her maiden name of Caroline M. Fisk, for $200 payable on demand to the order of the plaintiff. Writ dated January 14, 1868. The answer admitted the making of the note, and alleged that the defendant afterwards married Nathaniel Kellogg, who was still living, and that he paid the note.

<p>A., owning patents, gave B. a license to apply them to his machines for a certain royalty per machine, and then formed a partnership with C. under articles which stipulated that any royalty to fall due from B. should be paid to the firm. Qn the dissolution of the partnership, 0. sold his interest in the assets to A. for $159, and as a part of the transaction took A.’s written order on B. for one half of any royalty that should fall due from him, “ till it shall amount to $159,” and also a writing, signed by A., as follows: “ Bdr value received, I promise to pay to C. $159 paid by royalty from B. Situation of this note is as follows. B. is to pay to C. one half of the royalty, fast as it comes due, till it shall amount to $159.” B. never applied the patents to his machines. After presenting the order to B., and finding that nothing was due or becoming due from him, C. made demand on A. for $159, and A. did not comply with the demand. In an action then irought by C. against A. to recover that sum, these facts were put in evidence, and there was also testimony tending to prove that A., when he gave to C. the two writings, told him that “ he would get his pay sooner out of B., but if he could pay him sooner any other way he would do so.” The judge declined to rule that by accepting the writings C. was limited to the contingent receipt of royalty from B. for the pay-ment of the #159; submitted to the jury to determine, on all the evidence, whether it was understood and agreed between the parnés that they were accepted in satisfaction of A.’s promise to pay C. that sum; and upon that issue admitted in evidence a letter from A* to C. in which A. wrot< that he was expecting to sell his patents, and, if he should do so, could pay C. at once or, if he should go to Boston to live, could do the same. Held, that A. had no ground of exception.</p>

Contract on the following agreement in writing, signed on January 25,1864, by Field and Lemuel Sessions, the plaintiffs, as parties of the first part,- and by the defendant as party of the… Held: officers were chosen, and by-laws were adopted. The meeting was adjourned to May 7. At that time a vote was passed to purchase the mining property offered to the company by the defendant, for $500,000, whenever the treasurer should have received said amount from the stockholders.

Bill in equity in the nature of a bill of interpleader, filed by the administrator of the estate of Enoch Leonard, to obtain instructions as to the distribution of a balance of money derived from the sale of real estate under license of the probate court, and remaining in the plaintiff’s hands after paying the debts of the deceased and the charges of administration.

<p>Contract on the covenants of seisin and against incumbrances in a deed of real estate executed by Adam C. Rider to the plaintiff. Trial in the superior court, without a jury, before Putnam, J., who ruled that the plaintiff was not entitled to recover on the case which is stated in the opinion, and gave judgment for the defendant. The plaintiff alleged exceptions.</p>

<p>Writ of entry by the assignee of the estate of Daniel Charter in insolvency, to recover land in Springfield. Plea, nul disseisin. At the trial in the superior court, before Tose, J., the demandant proved a title in Daniel Charter to the demanded premises, put- in evidence the assignment in insolvency, and rested his case. The tenants claimed under a deed of the premises from Henry Kennedy to Mrs. Charter, executed January 25, 1861, which they put in evidence together with a deed thereof by Daniel Charter to Kennedy, executed August 2, 1860. The demandant then, contesting the conveyances as in fraud of Daniel Charter’s creditors, introduced evidence tending to prove that Daniel Charter was indebted to many persons, including his two eons, at the time he made his deed to Kennedy, and that he afterwards became further indebted; the amounts of these various debts; and the value of all his property, and the value specially of the demanded premises, at that time. The tenants also introduced evidence on the same issue, and Daniel Charter testified, among other things, “ that his sons consented to his malt ing the conveyance.”</p> <p>“ The judge gave to the jury general instructions as to what would render the conveyance fraudulent as to existing creditors, and also as to future creditors, which were not excepted to. He also instructed the jury, among other things, that, if they should find that the conveyance under the instructions given was not fraudulent as to the other creditors of Charter, it could not properly be regarded as fraudulent as against his sons, it having been made with their knowledge and consent; to which no exception was taken.</p> <p>“ The demandant asked the judge to instruct the jury that all that was necessary to make the conveyance by Charter fraudulent, it being made without consideration, was, that Charter was deeply indebted, even though he was not insolvent; that actual insolvency of Charter was not required to render the conveyance void; and that the debts to the sons were to be considered in determining whether the conveyance left Charter deeply indebted, or insolvent, because, though the sons consented to the conveyance, their debts still remained against Charter, and might have been enforced against him and his remaining property.</p> <p>“ The judge declined to give the first branch of the instruction prayed for, and instructed the jury as follows: That whether a conveyance of this character is fraudulent or not is a question of fact, to be determined on a view of all the circumstances attendant upon the making of the grant or conveyance, especially on the condition of the grantor as to property, and as to the amount of debts which were due and owing from him at the time he undertook to dispose of his estate, or a portion thereof, by gift, or without adequate consideration. On the one hand, it could not be properly adjudged that a voluntary conveyance was fraudulent and void, either as against existing or subsequent creditors, if it was proved to have been made by a person substantially free from debt and possessed of a large amount of property, who had no purpose to hinder or delay his creditors, whose sole motive was to transfer the property to his wife or children, so that it should not remain at the hazard of business or be subjected to the risk of improvidence. On the other hand, it would be very clear that a voluntary transfer of property by a person deeply indebted, and whose property was inadequate or barely sufficient for the payment of hi's debts, would furnish strong presumptive evidence of fraud, and if un explained would be set aside as void against creditors.</p> <p>“ After reading the second branch of the prayer for instructions to the jury, the judge said : ‘ I instruct you that the debts to the sons are to be considered in determining whether Charter was insolvent or deeply indebted, when the conveyance was made by him, and whether the conveyance' was fraudulent or not; but, upon the question whether fraudulent or not, they are to be considered in connection with the fact that the sons consented to the conveyance.’ ”</p> <p>The jury found for the tenants, and the demandant alleged exceptions.</p>

Contract to recover damages for the injury of a lot of apples by freezing while being transported by the defendants on theirailroad.

Contract against the defendants, as common carriers, for their failure to forward and deliver shingles to Joseph S. Clark, at Westfield. Writ dated June 28, 1867. The declaration alleged the delivery to the defendants, their neglect to forward, and the destruction of the shingles while in their hands.

Tort for the conversion of a car load of corn. At the trial in the superior court, before Vbse, J., the plaintiffs, to prove title, put in evidence a sight draft for $451.22, dated at Cincinnati, September 12,1867, drawn on the defendant by David Schwartz & Company of that city, and indorsed by them, and also a bill of lading purporting to be signed by an agent of the White Line Central Transit Company, dated at Cincinnati, September 12, 1867, acknowledging the receipt from…

<p>For the purpose of preventing the establishment of a right to maintain across one lot of land a drain leading from another lot, by adverse use continued for twenty years, the testimony of a person who within that time owned the first lot is admissible, that during the time he owned it he never knew of the existence of the drain.</p>

<p>Writ of entry to foreclose a mortgage. Plea, nul disseisin, with a specification of defence that the demandant, before bringing her action, entered upon and took open and peaceable possession of the demanded premises, and leased them to Maria H. Gove, who was still in possession.</p> <p>At the trial in the superior court, before Putnam, J., it appeared that the demandant, before bringing this action, entered upon the premises, in the presence of two witnesses, to foreclose the mortgage for breach of condition; that a certificate of the entry was duly recorded; that afterwards the demandant leased the premises to Maria H. Gove, the tenant’s wife, who was occupying the premises at the time of the entry, the tenant then and ever since having been out of the Commonwealth; and that Maria H. Gove still remained in possession.</p> <p>The case was withdrawn from the. jury by consent of the parties, and the judge ruled that on the above facts this action could be maintained, and ordered judgment for the demandant. The tenant alleged exceptions.</p>

Tort for removing two rails placed by the plaintiff across Crossett Avenue, so called, leading from Main Street on the west to Willow Street on the east, in Springfield. At the trial in the superior court, before Fose, J., it was admitted that in 1834 George Bliss and others were the owners of a tract, including the whole of Crossett Avenue and the land adjoining it on both sides.

Contract on three bills of exchange drawn by the plaintiffs on the defendant, dated November 19,1867, November 29, 1867 and December 6, 1867, respectively, each payable sixty days after date and accepted by the defendant. Writ dated August 29, 1868.

Contract for the price of ale sold and delivered by the plain tiff to the defendant. Trial in the superior court, without a jury before Putnam, J., who found these facts: “ In June 1864, the plaintiff, a resident of New York; called upon the defendant, a dealer in ale and resident of Springfield, at his place of business in Springfield, and wished to know il the defendant would not purchase his ale of him, the plaintiff.

<p>Petition, filed in this court in Hampden, December 24, 1869, for a writ of prohibition to prohibit the board of aldermen of the city of Springfield from taking part of the petitioner’s land in Springfield to widen Maple Street, in accordance with a vote passed by them August 2, 1869, and from assessing on his land a betterment on account of said widening. The respondents were ordered to appear before the court in Boston to show cause why the prayer of the petition should not be granted. They appeared; the case was reserved by the chief justice foi the determination of the full court, and, by consent of parties, was argued in March 1870 at Boston.</p>

<p>A grantee of land, who, through neglect to record his deed, has had the land taken from him on an execution issued upon a judgment rendered against his grantor in an action on a debt secured by a mortgage of the grantor’s other land, may maintain a bill in equity against his grantor and the judgment creditor, to be subrogated, to the extent of nis loss by the levy, to all the rights of the latter under the mortgage, not required for the foil satisfaction of the debt.</p> <p>A. granted land to B. and C.; they mortgaged it to D.; and C. conveyed his equity of redemption to B. E. sued C., attached his equity as having been conveyed in fraud of hia creditors, and recovered judgment. C. went into insolvency; the attachment was continued on motion of the assignee of his estate in insolvency; and, upon a sale of the equity on execution, E. bought it, and took a deed of it from the officer. But meanwhile F. had levied on the land an execution issued upon a judgment recovered by him against A. in an action on a debt secured by a mortgage of A.’s other land; and held it adversely to A. and those claiming under him, by reason of the neglect of B. and C. to put their deed from A. on record. Held, that, to a bill in equity filed by B. against A. and F.? praying to be subrogated to the rights of F. under the mortgage of the other land, D. and E. should be made parties. Held, also, on a cross bill filed by E., that E. was not entitled to be subrogated to those rights jointly with B.</p>

<p>Writ of entry, dated March 30, 1868, to foreclose a mortgage of land in Worcester. The material facts, appearing by the report of the trial, before Ames, J., as since amended by the presiding judge with the assent of the parties, were as follows :</p> <p>In September 1855, the tenant, being seised of the demanded premises, and of a large adjacent tract of land, made a deed of the demanded premises to the Ladies’ Collegiate Institute in fee simple; provided however, and upon the express condition, that the grantees should within five years erect and complete certain buildings thereon; with the usual covenants of seisin, against incumbrances, of good right to sell, and general warranty, “ subject always to and upon the proviso and conditions as aforesaid.”</p> <p>Simultaneously with this deed and as part of the same transaction, and to secure the payment of part of the purchase money in instalments payable in one, two and three years respectively from the 1st of September 1855, the Ladies’ Collegiate Institute executed a mortgage back to the tenant, describing the premises as “.being the same tract of land described in a deed given by the tenant to them as aforesaid “ and to be recorded herewith,” and also containing the usual covenants. Both the deed and the mortgage were duly acknowledged and immediately recorded.</p> <p>On the 31st of August 1857, the tenant, for a valuable consideration, did “ sell, assign, transfer, set over and convey ” to the demandant “ said mortgage deed, the real estate thereby conveyed, and the promissory note, debt and claim thereby secured, and the covenants therein contained,” to have and to hold the same to him, his heirs and assigns, “ subject nevertheless to the conditions therein contained and to redemption according to law.”</p> <p>The condition of the deed from the tenant to the Ladies’ Col legiate Institute not having been performed, the tenant, with the knowledge of the demandant, entered upon the premises, and has since remained in possession, claiming to hold them for a breach of that condition.</p> <p>It was agreed that, if upon these facts the demandant was entitled to judgment, judgment should be rendered for him ac« cordingly; otherwise, the case to stand for trial.</p>

Tort on the Gen. Sts. c. 44, § 22, for an injury alleged to have been caused to the plaintiff by a defect in a street which the defendants were bound to keep in repair.

<p>The neglect of a town to remove a pile of earth from a highway does not so put it in pari delicto with the party who placed the pile there as to prevent its recovering from him the amount of damages which it has been compelled to pay one who was injured in an accident caused by the obstruction.</p>

Contract on a written agreement for building a lockup for the defendants. The declaration alleged the making of the contract, and that the plaintiff was ready to perform the same, but that the defendants hindered him. At the trial in the superior court, before JReed, J., .the defendants' produced, at the request of the plaintiff, the instrument declared on, but insisted that it was not a contract binding on the defendants.

Contract to recover the amount oi a tax assessed in May L866 to the plaintiff, as administratrix of the estate of her deceased husband, and alleged to have been paid by her under protest. The case was referred by agreement of parties and rule of the superior court.

<p>A surviving partner, who is administrator of the estate of his deceased partner, may be called upon to account in the probate court for his settlement of the partnership estate.</p>

<p>Contract by the administrator of the estate of Frank J, Hatch, for the price of goods, belonging to the estate, sold and delivered to George L. Lawrence at the request of the defendants. At the trial in the superior court, before Brigham, C. J., the plaintiff offered to show that Frank J. Hatch died in 1866; that in October 1867, the plaintiff, (who was the brother of Frank J. Hatch,) acting as executor in his own wrong, sold and conveyed the goods in question, (which belonged to the estate,) to Lawrence, in consideration of the oral promise of the defendants to the plaintiff to pay him $1700 in cash towards the price of the goods; that at the.time of the sale and promise the defendants knew that the plaintiff was acting as executor in his own wrong in the premises; that the plaintiff transferred the goods to, Lawrence by bill of sale with warranty of title, and by delivery, and the defendants took from Lawrence a mortgage for $1700 on the property, to secure them ; that on May 20, 1868, the plaintiff was duly appointed administrator of the estate, and took on himself the trust by giving bonds according to law; that, after he became such administrator, the plaintiff notified the defendants that, in his capacity of administrator, he ratified and confirmed all his acts, contracts and doings in the sale of the goods to Lawrence and with them, and in relation to the price therefor; that, soon after this notice, the defendant Proctor, who was the agent of the other defendants in the premises, told the plaintiff that the agreement of the defendants with the plaintiff as to paying the $1700 was fair, and the money should be paid; that soon afterwards the defendants notified the plaintiff that they claimed no title to the property under their mortgage, and regarded the same as invalid ; and that the goods had always remained in the possession of Lawrence.</p> <p>The judge ruled that the evidence, if admitted, would not sustain the action, and directed a verdict for the defendants. The plaintiff alleged exceptions.</p>

<p>Petition to the superior court for partition of land in Mendon between the petitioner and Frank H. Pond, Charles H. Pond, Harry L. Nelson and Mary H. Nelson. Trial before Brigham, C. J., who reported the case substantially as follows:</p> <p>The parties claimed title to the premises under the will of Mary M. Hayward, which was proved and allowed on September 3,1861, and after giving certain legacies provided thus: “ I give and bequeath all the rest and residue of my estate, both re al and personal, to be divided as follows, viz : One third part tl ereof to my son Seth H. Hayward, he to receive as a portion of this bequest all the notes, securities and demands I may hold against him at my decease; and one third thereof to my ds.ugh ter Anna H. H. Hayward; and the remaining third part thereof to my grandsons, Frank H. Pond and Charles H. Pond, they to receive as a portion of this bequest all the notes, securities and demands which I may hold against their father,'Eli Pond, Jr. Said Frank H. Pond and Charles H. Pond to have equal shares in this bequest.” John G. Metcalf was appointed sole executor of the will, accepted that trust, and settled the estate. The petitioner held the title that Seth H. Hayward had, and Harry L. Nelson and Mary H. Nelson were the children and heirs of Anna H. H. Hayward, who subsequently to the date of the will had married Thomas L. Nelson and deceased.</p> <p>Mary M. Hayward died seised and possessed of the land of which partition was sought, and also of other real estate situate elsewhere within the Commonwealth, besides a large amount of personal estate more than sufficient to pay all debts and charges of administration.</p> <p>“ At April term 1864 of the supreme judicial court, the executor filed his bill in equity, in which all the parties to this petitior., or those under whom they claim, were made parties, for the purpose of obtaining a judicial decision as to the rights of the several legatees in the will, in the distribution of the personal estate of the testatrix under the provisions of the will. And, after due proceedings, a decree was entered at said term by consent, that the notes, securities and demands held by the testatrix, at her decease, against Seth H. Hayward amounted to $6579.97; that the notes, securities and demands held by the testatrix, at her decease, against Eli Pond, Jr., after deducting therefrom certain set-offs, amounted to $2883.03; that the case be referred to a master to take an account of the funds in the hands of the plaintiff, and that the plaintiff’s costs and certain expenses be paid out of the funds. The parties having filed an agreement in lieu of a master’s report, the following decree was entered November 20,1865 : ‘ It appearing, by the agreement of the parties on file, that the personal estate in the hands of the plaintiff, subject to the trust set forth in the original bill, inclusive of the notes, securities and demands held by the testatrix against Seth H. Hayward and Eli Pond, Jr., respectively, as fixed by the former decree and after deducting all costs and other .expenses directed by said former decree to be paid therefrom, amounts to $17,272.41; and a reference to a master having been waived ; it is now, with the consent of all the parties interested and by the consideration of the court, ordered, adjudged and decreed that the personal estate aforesaid be distributed among the various parties entitled thereto in. manner following, viz: to Samuel D. Torrey, administrator of the estate of Anna H. H. Nelson, $5346.22; to Frank H. Pond and Charles H. Pond, in equal shares, $5346.22, the said Charles H. and Frank H. to receive, as part thereof, the notes, securities and demands aforesaid held by the testatrix against El; Pond, Jr., amounting, as fixed by said former decree, to $2883.03; to Seth H. Hayward the notes, securities and demands aforesaid held by the testatrix against him, amounting, as fixed by said former decree, to $6579.97. And the said plaintiff is ordered to make distribu tian of said personal estate among the parties in the manner above directed.’”</p> <p>The petitioner contended that it was open to him to show that the notes, securities and demands held by the testatrix, at her decease, against Seth H. Hayward, amounted to less than $6579.97.</p> <p>“ The questions submitted to the decision of the court are, whether any, and, if any, what part of the indebtedness of Seth H. Hayward to the estate of the testatrix should, under the provisions of the will, and said decrees and proceedings in equity, be deducted from the real estate, and if so, whether it should be deducted wholly from these premises or pro rata from the other real estate in the Commonwealth similarly devised to the same parties. By consent of the parties, the questions of law raised upon the foregoing statement are reserved before verdict for the consideration of the supreme judicial court.”</p>

<p>Contract to recover money expended for the support of the cnildren of Calvin D. Sanderson, who, the plaintiffs contended, had acquired a settlement with the defendants under the St. of 1865, c. 230.</p> <p>At the trial in the superior court, before Morton, J., it appeared that Sanderson was duly enlisted and mustered into the military service of the United States; that he was at the time of his muster, and had been for the six months next previous, an inhabitant of Lunenburg; that he was of full age at the time of his enlistment; and that he had been in the service not less than a year when he was discharged.</p> <p>The discharge of Sanderson from the military service, which was put in evidence by the plaintiffs, set forth that he was discharged June 30, 1863, “ by reason of surgeon’s certificate of disability;” was signed by his commanding officer; and was proved to have been issued by the proper authorities to Sander-son, and to have never been revoked or annulled.</p> <p>The defendants then offered to show “that on or about January 24, 1862, Sanderson applied for and received a furlough or leave of absence from the military service for the period of thirty days; that said furlough or certificate of leave purported to grant a leave of absence for thirty days from the date thereof; that said furlough or certificate by accident bore no date; that Sanderson, when receiving said furlough, returned home; that he did not return to his military duty at the end of thirty days, but, knowingly and corruptly intending to evade his duty, remained till June 25, 1862, when he was arrested by the military authorities as a deserter, and confined in Fort Independence till he received his discharge as above stated.” The defendants did not offer to show that Sanderson was ever tried, convicted or sentenced on account of said alleged desertion; but they further offered to show “ that Sanderson was not disabled at the time he received his discharge, and that the surgeon’s certificate of disability and the discharge were obtained by undue influence.”</p> <p>The judge ruled that the evidence offered was inadmissible the verdict was for the plaintiffs; and the defendants alleged exceptions.</p>

<p>A copy, sworn to be correctly made from a press copy, of a letter, is admissible, as secondary evidence, to prove its contents, without producing the press copy.</p>

<p>Contract for goods sold and delivered. At the trial in the superior court, before Morton, J., the plaintiffs relied on a written contract, dated September 19,1866, by which it was agreed that the plaintiffs “ shall manufacture and deliver ” to the defendant “ all the horn chains they manufacture,” at certain prices, and the defendant should receive and pay for 5000 yards of the chains after notice to the plaintiffs that he would receive no more goods. The defendant contended that the chains manufactured under this contract were of a material and of a workmanship inferior to that called for by the contract. It appeared that a large part of these chains were composed of round and of smaller oval links; that- the oval links were of horn, but the round links of hoof; and that horn was in some respects a superior material to hoof.</p> <p>The plaintiffs were allowed, against the defendant’s objection, to put in evidence (which it is unnecessary to set forth in detail) tending to show that the plaintiffs had been manufacturing such chains before the date of the contract; that they were called horn chains in the market; and that the defendant was informed and knew at the time of the contract that the chains manufactured thereunder were to be made partly of hoof.</p> <p>The defendant testified, on cross-examination by the plaintiffs, that he sold the chains manufactured under the contract by the plaintiffs, at an advance of ten per cent. Afterwards the defendant offered to show “ the price of first class chains of the same class as those described in the contract at its date; ” also “ the price in the market for horn chains from the poorest to the best; ” also “ what would be a fair price in the market ” for the chains manufactured under the contract; also “ how the quality of said chains compared with the quality of chains sold in the market at the price named in the contract;” and also “the difference of price in the market, at the date of the contract, between horn chains and hoof chains,” but the judge refused to admit any of this evidence offered.</p> <p>John Lincoln, called as a witness by the defendant, was asked on cross-examination, whether he did not offer Swett, one of the plaintiffs, $500 for the copy of the contract in bis possession, after Swett had sold out his interest under the contract to the other plaintiffs ; and the witness denied that he did so. Swett was afterwards allowed, against the defendant’s objection, to testify that Lincoln made him the offer, and that he refused it.</p> <p>Swett also testified on cross-examination, that he was not a practised hoof or horn manufacturer; that he only put together links which other people made; and that he had experimented a little, but did not claim to know more than any one else as to hoof or horn. On reexamination he was allowed to be asked, against the defendant’s objection, if he had ever made experiments in making hoof and horn rings, and he replied : “ I have experimented by putting hoof and horn rings together; almost invariably the horn ring would break. These horn rings were not smooth. I continued to send them to market until there was no demand.”</p> <p>The defendant requested the judge to rule that the words “ horn chains ” in the contract were a warranty that the chains should be composed of links made solely of horn, and the defendant was not bound to receive chains made partly of hoof and partly of horn ; that, if the jury should be satisfied upon all the evidence that the plaintiffs were to furnish chains of the first quality, the demand for the chains in the market generally, whether greater or less, or the fact that the chains manufactured by the plaintiffs were merchantable, did not affect or control the quality of chains which the plaintiffs were bound to manufacture.</p> <p>The judge instructed the jury, “ in substance, that the burden of proof was upon the plaintiffs to satisfy them that they had, in good faith, complied with the contract with the defendant, and delivered to him articles of the kind and quality called for by his contract; that the expression in the contract,1 horn chains,’ does not necessarily import a warranty that the chains should be made wholly of horn, but if there was an article called and known in the market as 6 horn chains,’ made partly of horn and partly of hoof, and the parties intended this article when they entered into the contract, it would be a compliance with the contract if the plaintiffs furnished such article ; that, there being no stipulation in the contract that the horn chains were to be of the first quality, the law does not imply a warranty that they should be of the first quality, but does imply a warranty that they should be of a fair merchantable quality and of good workmanship ; and that, if the plaintiffs had not delivered articles of the kind and quality called for by the contract, the defendant was not obliged to receive or pay for them, and the plaintiffs could not recover for such articles.”</p> <p>The jury returned a verdict for the plaintiffs for the full amount claimed, and the defendant alleged exceptions.</p>

<p>Whether to dismiss, on the defendant’s motion, made after answering to the merits, a loco, action brought in a wrong venne, is discretionary in the superior court.</p>

Action under the Gen. Sts. c. 137, for possession of land in Blackstone. Writ dated June 12, 1867. Trial in the superior court, before Reed, J., who allowed the following bill of exceptions: “ The defendant had been, prior to June 1, 1867, tenant at will of the premises under Lyman Emerson, the owner; on that day Emerson made a lease, for a term of one year, of the premises to the plaintiff; and it was under this lease the plaintiff claimed.

<p>A party claiming an estate in remainder, after an existing life estate, cannot be required by a proceeding under the Gen. Sts. c. 134, § 49, to bring an action to try his title.</p>

<p>Writ of entry against Foster and Sidney W. Benjamin, to i.cover land in Winchendon. Writ dated December 4, 1867. Plea, nul disseisin, with a specification disclaiming any title in the premises other than the right to enter and to cut down and remove the trees growing thereon.</p> <p>At.the trial in this court, before Ames, J., it appeared that, by a deed dated May 17, 1865, Reuben Harris, who was then the owner of the land, granted, bargained and sold to the tenants, in consideration of $2050 to him paid, “a certain lot of timber on a certain lot of land ” described by metes and bounds, and being the land demanded, “ also, all the wood and logs on said above described land, which timber, wood and logs, together with the land on which they stand, was this day conveyed to me by deed by William Baldwin, provided, however, that said wood, timber and logs is to be removed from said land within three years from the date of these presents ; to have and to hold the said granted and bargained property unto the said Foster and Benjamin, their heirs, executors, administrators and assigns, to their only proper use, benefit and behoof forever, and I, the said Reuben Harris, do vouch to be the true and lawful owner of the property aforesaid, and have in me full power, good right and lawful authority to dispose of the said property in manner as aforesaid, and I do, for myself, my heirs, executors and administrators, hereby covenant and agree to warrant and defend the said property unto the said Foster and Benjamin, their heirs, executors, administrators and assigns, against the lawful claims and demands of all persons whomsoever; ” and that this deed was recorded in the office of the town clerk of Winchendon.</p> <p>It further appeared that Harris, on February 11,1867, mortgaged the premises to Charles L. Beals by a deed, duly executed and recorded, and containing a reservation “ of all the trees growing on the land, the same having been sold to Leonard Foster and Sidney W. Benjamin; ” that, on July 1, 1867, Harris conveyed the premises in fee to the demandant by a warranty deed in common form, but which excepted the mortgage to Beals in the covenant against incumbrances; and that the tenants began to cut down trees in December 1865, and had continued to do so at intervals since, although Harris, before his conveyance to the demandant, had forbidden them to cut more trees, and the demandant had forbidden them since that conveyance.</p> <p>The tenants offered to prove that the demandant, at the time of the conveyance from Harris to himself, had actual notice of the sale of the trees to them. The judge ruled that, on the facts and offer of proof as above set forth, the tenants had not made out a defence, ordered a verdict for the demandant, and reported the case for the consideration of the full court; such decision to be rendered as law and justice might require.</p>

Tort for breaking the plaintiff’s close and cutting off the limb of a tree therein, on August 1,1867.

<p>Toet for killing the plaintiff’s cow. At the trial in the superior court, before Reed, J., it appeared that the plaintiff’s pasture bordered on the defendants’ railroad, and there was evidence tending to show that the cow escaped from the pasture to the railroad, and was there killed by a locomotive engine of the defendants.</p> <p>The plaintiff put in evidence tending to show that “ the defendants were engaged in constructing their road since May 16, 1846,” the date when the St. of 1846, c. 271, § 3, requiring railroad corporations to erect and maintain fences on their road, went into effect, “ having begun to construct the same before that date,” and contended that the defendants were bound to-construct and maintain the fence on the line of their road adjoining the plaintiff’s land. The judge ruled “that if the defendants’ road was located and the construction thereof commenced before May 16,1846, 'the St. of 1846, c. 271, § 3, did not apply to the defendants, and that the burden was upon the plaintiff to show all'the facts necessary to bring thé defendants within the provisions of that statute in this behalf.”</p> <p>The plaintiff offered the testimony of his wife as to the circumstances under which the cow escaped from the pasture to the road of the defendants, she being the only person who saw and knew the facts attending the escape; but her testimony was excluded.</p> <p>The jury returned a verdict for the defendants, and the plaintiff alleged exceptions.</p>

<p>The St. of 1869, c. 408, § 5, vesting in railroad commissioners the powers and duties of commissioners appointed by this court under the Gen. Sts. o. 63, § 117, takes away the jurisdiction of this court, and of commissioners appointed by it, over proceedings pending before these commissioners at the time of its passage.</p>

<p>Contract. At the trial in this court, before. Ames, J., “it was conceded, for the purposes of the trial, that the plaintiffs could prove that the defendants, being desirous of building a gas-holder upon land in the rear of a lot belonging to the female plaintiff, and having no means of getting from the street upon said land except over this lot, had applied to the plaintiffs for leave to use the lot for the purposes described in the following written agreement, signed by the plaintiffs: 6 Worcester, May 13, 1868. We, the undersigned, agree to rent or lease a certain tract of land on the southerly side of Chandler Street, west of and adjoining Nos. 10 and 12, for the purpose of delivering sand, bricks, cement, and for all purposes necessary for the construction of a gas-holder to be built by the Worcester Gas Company, and to be occupied during the construction of the same, the compensation for the same to be decided by three disinterested men; ’ and had agreed with the plaintiffs to leave the mattei of the compensation to be determined by three men to be chosen by the parties; that, at the request of the defendants, the plaintiffs bad made, executed and delivered to the defendants the said written agreement, and thereupon referees were chosen, who signed and delivered to the defendants the following award: ‘ The gas company agreeing to put the fences in as good condition as they now are, and remove all rubbish from the premises, we the subscribers award the sum of $1266.66 for the rent of said lot;’ that the lot of land included in the agreement was, at the time of making the agreement, occupied by growing trees, vines, fruits, vegetables and a building, all of which the plaintiffs were to remove, so as to enable the defendants to occupy the land; that, after the agreement and the award of the referees were made and delivered to the defendants, the defendants gave the plaintiffs notice to clear the land of the trees, vines, building, &c,, before the following Monday; that this notice was given within a day or two after the award of the referees was delivered; that thereupon the plaintiffs removed the trees, vines, building, &c., at great expense, and, during the time necessary for the building of the gas-holder, interposed no objection or hindrance to the occupation of the land by the defendants, but held the same for them during all the time necessary for the construction of the building; that the defendants, after giving the notice above mentioned, concluded to and did erect the gasholder in another place, and did not have occasion to occupy the land for the purposes named in the agreement; and that the plaintiffs were greatly damaged by the removal and destruction of their property aforesaid.”</p> <p>Upon the facts above conceded the judge was of opinion that the action could not be maintained, and reported the case for the consideration of the full court.</p>

<p>Contract for breach of a promise of marriage. The defendant denied the promise. At the trial in the superior court, before Devens, J., it appeared that there had been sexual intercourse between the plaintiff and defendant, and the plaintiff had been delivered of a child. The plaintiff contended that this intercourse was procured oy her seduction by the defendant, brv the defendant contended that it was without solicitation on his part.</p> <p>The plaintiff put in evidence the deposition of Augusta Griffith, who testified that the defendant frequently brought the plaintiff to his house, paid for her meals, and walked and drove with her. This deposition contained the following direct interrogatory : “ State whether or not, from his attentions to her, you were led to suppose that they were engaged, or that he was waiting upon her, or paying attention to her with a view of marrying her.” The answer to this interrogatory was, on the objection of the defendant, excluded by the court. The defendant had filed, among others, the following cross-interrogatory: “ How did he bear himself .towards her, and what attention did he pay to her in your presence, that was a part of the reason you inferred their engagement?” The answer to this cross- . nterrogatory was: “ He wanted to keep near where she was in the room, sometimes with his arm round her waist.” The defendant asked the judge to exclude this cross-interrogatory, with its answer, on the ground that it was filed with reference to a direct interrogatory and answer which the court had excluded, but the judge allowed the cross-interrogatory and answer to be read to the jury. '</p> <p>“ The defendant proposed to ask the plaintiff, on cross-examination, what sort of a house her brother kept, about the time of the alleged promise; to which the plaintiff objected, and the judge refused to allow the question to be put. The defendant stated that he proposed to show that the brother kept a house of ill-fame, and that she frequently went to said house; and thereupon, without objection, asked the plaintiff whether she did not frequent her brother’s house, and she testified that she never did. To the refusal to allow the above question to be put, the defendant objected.”</p> <p>Upon the question of damages, the defendant asked the judge to give ¿he jury several instructions, of which the first and fifth were as follows:</p> <p>“ 1. If the jury believe that the defendant seduced the plaintiff under a promise of marriage, still that fact cannot in any event aggravate the damages. She cannot recover damages for any mortification and pain or distress of mind, except such as resulted solely from the defendant’s refusing to keep bis promise: and the fact that she had been seduced by him is not an element of damages, directly or indirectly, and in estimating what amount the plaintiff should recover the jury are to dismiss that consideration from their minds. If, therefore, the jury should believe that the plaintiff was so seduced, and that her mortification and distress of mind were increased by reason of thai fact, still they must exclude it from their computation of dam ages.”</p> <p>“5. If the defendant promised to marry the plaintiff and re fused to fulfil his promise, whatever mortification and pain or distress of mind the plaintiff has suffered, resulting from her own criminal conduct, cannot properly be taken into the account in computing damages.”</p> <p>The judge instructed the jury substantially as requested except as to the matters embraced in these two prayers for instructions ; and as to these he instructed them that in estimating damages “they might further consider the mortification and distress of mind which she had sustained in other respects than by the injury to her affections by the breach of his promise to. marry her ; that in this case the plaintiff claimed to have proved that, yielding to the solicitations of the defendant, she had been seduced by him under his promise of marriage, and induced to have sexual intercourse with him, the result of which had been the birth of a child, still living; that, if these facts stated had been proved, they might consider them in awarding damages for the mortification and distress suffered by the plaintiff; and that they would have the legitimate tendency to increase them.”</p> <p>The verdict was for the plaintiff; and the defendant alleged exceptions.</p>

<p>At the trial of an action against an agricultural society, to recover for injuries sustained by one who paid a prescribed fee and thereupon entered for a race held on the defendant#)’ track, for a premium offered by them, at their exhibition, at which a great number of persons, horses and vehicles were present, and, while riding the race on a horse without ft saddle, and going at the rate of thirty mi’es an hour, came into collision with a horse and sulky on the track, (which was only partially fenced,) and thereby was injured, there was conflicting evidence whether the plaintiff was so leaning upon his horse’s neck at the time of the collision that he could not see objects in front of him. The defendants requested the judge to rule that if the plaintiff was riding at the rate of thirty miles an hour, on a track only partially inclosed, and surrounded by large numbers of people, and was sitting in such a manner that he could not see ten feet before him or that he could not see and avoid obstructions, he was not in the exercise of due care. The judge refused so to rule; and instructed the jury that, for the plaintiff to recover, he must have been in the exercise of due care, that is, the highest care which men of ordinary prudence would use in the same situation, and if the plaintiff rode as alleged, he must show that in so doing he was in the exercise of due care, having regard to the matter in which he was engaged; that he had a right to believe that the defendants would exercise the highest care which reasonable men could do to prevent any obstructions being on the track, but if, in spite of such care, there was danger of obstructions, he was bound to consider this; that the defendants were bound to adopt such precautions to keep the track clear as men of ordinary prudence would adopt; that it was not enough to order men off the track, but that they should have a force sufficient to keep them off; and that the care must be the highest which could reasonably be exercised in order to prevent those injuries which human foresight could avert; but that it was not enough for the plaintiff to show that there was an obstruction on the track, but he must show that the defendants had failed in their duty, which was to use every effort, which reasonable men could be expected to use, to keep the track clear. Held, that the defendants had no ground of exception.</p> <p>On the trial of an action against an agricultural society to recover for injuries received by one who was riding a race on the defendants’ track, alleged to have been caused by the negligence of the defendants in allowing a horse and sulky to be driven on the track, with which he came into collision, a marshal of the defendants, whose duty it was to keep the track clear, having testified that he saw the horse and sulky driven on the track within two seconds before the collision, was asked on cross-examination by the " plaintiff if he made any attempt to stop them from going on the track, and replied that he did not. Held, that the refusal by the presiding judge to allow the defendants to ask the witness why he did not attempt to stop them afforded no ground of exception.</p>

<p>Contract. The first count was to recover $600, being the balance due to the plaintiff under an agreement signed by the parties, the material parts of which were as follows: “ An agreement made this 18th day of December 1866, by and between Ebenezer B. Walker of the one part, and the Inhabitants of the Town of Fitchburg, in their corporate capacity, of the second Dart, witnesseth: that, /or the consideration below expressed, the said Walker agrees to construct, make and complete certain straightening in alignments and changes in grade in the county road from Fitchburg to Westminster, as specified and set forth in the certain directions and specifications of the county commissioners, and in each and every particular to work and complete said straightenings and grades according to the requisitions set forth in said specifications, except wherein they are varied here below. And it is further agreed that said Walker is to turn the Nashua River from its present channel at the straightening of said road across the Hanna mill pond, so that said river shall hereafter run on the easterly side of said road between stakes 52 and 51 as placed and numbered by said commissioners ; said channel is to be 100 feet wide and so excavated as that the water in said river shall readily and clearly run and pass down said new channel without any obstruction into said Hanna mill pond. Said Walker is to widen out the said new channel of said Nashua River at the upper or southerly end thereof, on the easterly side beyond said 100 feet, so that the water may more readily enter the said new channel, which must "be sunk as deep as the present bed of the river, and made of a gradual inclination descending into said Hanna mill pond. And the said Walker agrees to have the whole of said road and the incidents therewith connected, as set forth in the above agreement and in said specifications of the county commissioners, completed and to the acceptance of the commissioners on or before July 1, 1867. And in consideration that said Walker does well and truly execute and perform his agreement, as above set forth, the said town of Fitchburg agrees to pay him the sum of $8500, payable 85 per cent, on monthly estimates as the work advances, and the balance at the completion of his contract to the acceptance of the county commissioners. The monthly payments as aforesaid to be made on or before the seventh day of each month for the last previous month.” The second count was to recover $600 for work and materials; and the third count was on an account annexed to recover the $600, and also $75 for other work done for the defendants and not included in the contract.</p> <p>At the trial in the superior court, before Brigham, C. J., the defendants admitted the making of the contract; that $600 of the contract price remained unpaid; that the plaintiff would have been entitled to that sum if he had fulfilled the contract; and that he was also entitled to the sum of $75 for work not included in the contract; but they claimed to recoup, against both said sums, damages for nonfulfilment of the contract. They also admitted that the whole of the road had been completed according to the provisions of the contract, except that it had not been accepted by the county commissioners; but they contended that the Nashua River had not been properly turned, and that the new channel was not sunk as deep as the contract required.</p> <p>The plaintiff offered evidence tending to show “ that the new channel was completed and the water turned into it two or three months before the road was finished; that no objection was made by the selectmen or others to the channel until several days after the plaintiff had finished the work and taken off his men ; that when he had finished the work he notified the selectmen that he had completed the work ; that the county commissioners went over the road and notified the selectmen then present that they accepted it; and that that acceptance had never been recalled or modified; but it appeared that the same had never been recorded by the commissioners, and it was admitted to be the custom of the commissioners to record their proceedings, including acceptance of highways; and that, soon after, the road was opened and used, and has since been used, for public travel.” The defendants objected to that part of the foregoing evidence which related to the acceptance of the road, and to the acts of the commissioners and the selectmen in the premises, but the judge admitted it.</p> <p>The defendants put in evidence as to the difference in value to them of the channel as left by the plaintiff and as it would nave been if sunk as they claimed that the contract required; and requested the judge to instruct the jury that the provisions of the contract required the plaintiff to sink the new channel as deep at the commencement or upper end thereof, as the bed of the river at that place in December 1866, if it could be done consistently with the other provisions of the contract.</p> <p>The judge declined to give this instruction, but instructed the jury “ that the contract required the plaintiff to excavate the new channel at its upper end so that it should be of a greater width than 100 feet, so that the water would more readily enter the new channel, which, from that end, was to be made as deep as the bed of the river was on December 18,1866, and made of a gradual inclination descending into Hanna mill pond; that the contract also required that the new channel, in its whole length, should be at least 100 feet in width, and that it should be so excavated that the water in the river should readily and clearly run and pass down said new channel, without any obstruction, into Hanna mill pond; and that the fact that, at the point of the entrance of the new channel into the mill pond, the new channel was made as deep as the bed of the river, and was of the required width, would not be a compliance with the contract if the new channel was not excavated of sufficient depth or sufficient inclination to cause the water of the Nashua River to readily and clearly run and pass down said new channel, without any obstruction, into Hanna mill pond.”</p> <p>The judge gave further instructions to the jury as to the acceptance of the work and a waiver by the defendants of the full performance of the contract, which were excepted to by the defendants, but are not material to be stated. And he also gave instructions as to the measure of damages, if the jury should find that the contract was not performed, which were not objected to by the defendants ; and directed the jury that if the plaintiff' had not fulfilled his contract, and the fulfilment had not been excused by the waiver or acceptance of the town, and if the work done by him was of less value by $675 than the work he contracted to do, he could recover nothing, and the verdict must be for the defendants.</p> <p>The jury returned a verdict for the plaintiff for $444.84, and the defendants alleged exceptions.</p>

<p>Replevin of eight feather beds. Writ dated December 10, 1868. At the trial in the superior court, before Brigham, C. J., without a jury, the following facts appeared : Stella A. Fuller, the wife of Charles C. Fuller, by deed dated June 13, 1868, and recorded on the same day in the office of the town clerk of Fitchburg, professed to mortgage to the plaintiffs, to secure the payment of a promissory note signed by her, “ certain goods and furniture,” including the eight feather beds, and by said deed avouched herself “to be the lawful owner of said goods and furniture and have a good right to sell and dispose of the same in manner aforesaid.” The goods and furniture were really the property of Charles C. Fuller, and were attached August 7, 1868, on a writ against him by the defendant, a deputy sheriff, but the plaintiffs contended that the attachment was void for reasons which are now immaterial. On August 12, 1868, Charles C. Fuller signed the following indorsement on the mortgage: “ I hereby formally sanction and ratify the action of the within named Stella A. Fuller, my true and lawful wife, she being and having been my agent for the transaction of business. I also have signed the note secured by the within mortgage ; ” and this indorsement was recorded on the same day.</p> <p>The judge ruled that the plaintiffs could not maintain the action, and found for the defendant. The plaintiffs alleged exceptions.</p>

<p>Tort against a deputy sheriff for the conversion of personal property including boots, shoes, blacking, materials for the manufacture of boots and shoes, tools, implements, and the. lease, fixtures and good will of the shop No. 124 on Main Street in Milford. Trial in the superior court, before Reed, J., who made a report of the case, for the determination of this court, substantially as follows:</p> <p>John C. Cosgrove, who was in the business of making and selling boots and shoes in Milford, and who boarded in that town, mortgaged to Charles Fletcher on September 8,1866, “ all the boots, shoes and the materials for the manufacture thereof, and all the goods and merchandise belonging to me and now in the shop No. 124 Main Street in Milford, and in the basement occupied by me under said shop which were not covered by ” a former mortgage to Fletcher; and on February 11 mortgaged to Amariah A. Taft“ all my stock in trade, consisting of boots, shoes, rubbers and slippers, and all the stock for the manufacture of boots and shoes, the same being in the shop No. 124 Main Street in Milford, and all the tools, implements and fixtures used in and about said shop, together with the lease of the same and the good will of the business, together with all property of every name and nature belonging to me in and about said shop and in the basement under the same.”</p> <p>On March 27, 1867, the plaintiff purchased from Cosgrove the goods for the alleged conversion of which this action was brought, and which included both the property covered by these mortgages and also other property, and on the same day Cos-grove fled from the Commonwealth, whither he did not return until he was brought back in the following August under arrest on a charge of forgery, except that, on the evening of April 3, he came secretly a few miles over the state line, entering the Commonwealth after nine o’clock and leaving before midnight. There was conflicting evidence on the question whether the sale by Cosgrove to the plaintiff was void as against creditors; and the defendant introduced evidence tending to show that Cos-grove’s absence from the Commonwealth was only temporary, and that he still retained his domicil therein.</p> <p>On April 1, 1867, the defendant, under a power of attorney from the mortgagees Fletcher and Taft, took possession of the mortgaged property for condition broken, and remained in possession until the same was sold as hereinafter stated, except so far as the possession was affected by the following proceedings.</p> <p>Nine writs were brought against Cosgrove, and attachments made thereon by the defendant as deputy sheriff, as appeared by his returns thereon, as follows: 1. Writ in favor of B. F. Brown; attachment on April 2,1867, of “four cases of boots.” 2. Writ in favor of Charles B. Godfrey and others; attachment on April 2, 1867, of “ thirty boxes of boots and shoes and rubbers, and one box of blacking, forty pieces of leather, and all the fixtures in shop occupied by the defendant, and all the lasts and patterns.” 3. Writ in favor of Willard Chilson; attachment on April 2,1867, of “ a lot of boots and shoes and rubbers and shop fixtures, the same having been previously attached on two writs, one in favor of B. F. Brown, the other in favor of Charles B, Godfrey & Company.” 4. Writ in favor of Alexander E. Nash, attachment on April 3, 1867, of “ a lot of shoes and boots and shop fixtures, the same having been previously attached on three writs, one in favor of B. F. Brown, one in favor of Charles B Godfrey & Company, one in favor of Willard Chilson.” 5. Writ in favor of Elbridge G. Cook; attachment on April 3, 1867, of “ thirty boxes of boots and shoes and rubber shoes, one box of blacking, forty pieces of leather and all the fixtures in the shop occupied by the defendant, and the same that was previously attached upon four different writs, No. 1, B. F. Brown; 2, C. B. Godfrey & others; 3, Willard Chilson; 4, A. E. Nash.” 6. Writ in favor of Frederick Walker; attachment on April 3, 1867, of “ thirty boxes of boots and shoes and rubber shoes, one box of blacking, forty pieces of leather and all the fixtures in shop occupied by the defendant, and the same that was previously attached on five different writs, No. 1, in favor of B. F. Brown; 2, C. B. Godfrey & others; 3, Willard Chilson; 4, A. E. Nash; 5, E. G. Cook.” 7. Writ in favor of Amariah A. Taft, the mortgagee above mentioned; attachment on May 6, 1867, of “ a lot of shoes and boots, rubbers, shop fixtures, the same having been previously attached on six writs.” 8. Writ in favor of Henry J. Melendy; attachment on May 11, 1867, of “a lot of shoes and boots, rubbers, shop fixtures, the same that is attached on eight [seven ?] other writs.” 9. Writ in favor of S. R. Hayward; attachment on June 24, 1867, of “ fifteen boxes of shoes.”</p> <p>At the time of the attachment in each of the first eight of these writs, a summons was left by the defendant in this action at Cosgrove’s last and usual place of abode; the writs were all duly returned and the actions thereon entered; and at the return term, without any further notice to Cosgrove, he was defaulted and judgment was rendered for the plaintiffs in the eight several actions, on June 19, 1867. On the ninth writ the case was continued, due notice was given to the debtor, and judgment was rendered therein on February 18, 1868.</p> <p>On five of the above writs, namely, 2-6, the mortgagees, Fletcher and Taft, were summoned as trustees, and in each case a decree was made that the mortgages were bond fide, and that the party plaintiff should, within thirty days, pay a certain sum as the amount due thereon to the mortgagees, and also their costs as trustees, and that a compliance with the decree and the payment of said sum and costs in any one of the five cases should be a compliance with the decree in any other of the cases. The said sum and costs were in fact paid to the mortgagees by Godfrey and others, the plaintiffs in the second suit above mentioned.</p> <p>Execution issued on all the judgments. From the defendant’s return to the execution in the first suit, it appeared that he seized one case of boots, “the same that was attached on the original writ,” and sold it by auction at Cosgrove’s shop in Milford, on July 2, 1867, at ten o’clock a. m., to Milo O. Mott for $60, and applied the proceeds in partial satisfaction of the judgment. From the defendant’s return to the executions in suits 2-8 it appeared that the defendant seized “701 pairs of children’s boots and shoes, 759 pairs of women’s boots and shoes, 150 pairs of men’s boots and shoes, 39 pairs of rubber boots and shoes, one lot of canvas, 7 sheets, 42 yards drilling, 26 sheep skins, 3£ French glove skins, 2 bronze skins,'13 patent calf skins, 14 goat skins, 15 feet enamelled leather buckskins, 66 lbs. calf skins, 77 feet grain leather, 115 feet kip leather, 22 cases liquid blacking, 57 pairs uppers, lot of remnants of upper leather, one show case of fancy articles, one sewing machine, stove and funnel, one show case, one set of tools, 18 doz. boxes of blacking, 200 lbs. sole leather, 2 sets of lasts, 30 doz. welts, lot of shoe leather remnants, one barrel of heels, and lease of shop,” being the same or part of the same that was attached on the original writs; that on July 2, 1867, at ten o’clock a. m., at Cosgrove’s shop, he sold “ said goods by auction to Milo O. Mott for $2500; ” and that he applied the proceeds to repaying to Godfrey and others, the plaintiffs in the second suit, the sum and costs paid by them to the mortgagees; to paying expenses and fees; and to paying the executions in suits 2-7 in full, and the execution in suit 8 in part. From the defendant’s return to the execution in suit 9, it appeared that he seized “ twelve boxes of shoes and two boxes of shoe trimmings and one box of boots, patterns, tools and furniture, the same that was attached on the original writ,” and that on March 28, 1868, he sold them by auction “ to various persons, they being the highest bidders therefor, for the sum of $312.36,” and applied the proceeds to the payment of fees and expenses and in satisfaction of the execution.</p> <p>An auditor, to whom the case was referred, reported the value of the property alleged to be converted as $4457, and no evidence was offered to contradict his report.</p> <p>“ The judge being of opinion that, upon the uncontroverted evidence in the case, the plaintiff was entitled to a verdict, on motion of the plaintiff ordered such a verdict for the value of the goods as determined by the auditor, and the jury returned a verdict for the plaintiff accordingly, it being agreed by the parties that, if in the opinion of the supreme judicial court a verdict for the plaintiff can be sustained on the foregoing facts, but only for the value of the goods minus the amount paid to the mortgagees, then the verdict is to be amended by deducting the sum so paid. If the foregoing ruling is correct, the verdict is to stand; otherwise, to be set aside and a new trial granted.”</p>

<p>Tort by the assignees in bankruptcy of George H. Josselyn, (who filed his petition in bankruptcy on November 11, 1867,) brought against Howe and Alonzo Upham, to recover for the conversion of personal property conveyed October 1, 1867, by Josselyn to the defendants, by a mortgage alleged to be fraudulent under the provisions of the United States bankrupt act, U. S. St. 1867, c. 176; 14 U. S. Sts. at Large, 517. Trial and verdict for the plaintiffs in this court, before Ames, J., who allowed a bill of exceptions substantially as follows:</p> <p>The plaintiffs were allowed, against the objection of the defendants, to put in evidence tending to show that, in the fall of 1866, Josselyn’s financial reputation and condition were bad.</p> <p>“ There was evidence tending to show that Josselyn was in business with one Moulton, making bricks; that in the latter part of the year 1866 they dissolved partnership, and Josselyn had, of the property of Moulton and Josselyn, some horses, carts, harnesses, brick machines and other apparatus for making bricks; that in the spring of 1867, having this property, Josselyn hired a brickyard and engaged in making bricks in Brookfield; that in May 1867 he represented to the defendant Upham, who was a shopkeeper in Brookfield, that he desired to obtain credit at his shop for goods for the men in his employ and for himself and also desired Upham to assist him in buying wood to burn his bricks, and agreed to give Upham a mortgage upon his personal property aforesaid, and also upon a kiln of bricks which he had prepared to burn, and Upham was to give him credit at his shop, and also to become responsible to the defendant Howe for wood which Howe was to furnish to Josselyn, to the amount of the security which he held from Josselyn ; and that thereupon, on May 21, 1867, Josselyn executed and delivered to Upham a mortgage upon the property aforesaid, which Upham held in trust for the benefit of himself and Howe. There was conflicting evidence upon the point as to whether Upham held the mortgage in trust for Howe, and the plaintiffs contended that the jury would be authorized from the evidence to find that Upham did not hold the mortgage upon any such trust, but held it as security solely for himself, to secure such advances in wood and goods as they might thereafterwards make.</p> <p>“ There was also evidence tending to show that, from that time until October 10,1867, Josselyn carried on the business of making bricks, and Upham and Howe made advances of wood and merchandise to him; that on August 21, 1867, Josselyn, having burned one kiln of bricks and sold a portion of it, and also having another kiln of bricks prepared to burn, made a new mortgage to Upham, upon the same terms and conditions as the former, as security, upon such of the same property as then remained in his possession, and also upon the new kiln of bricks which he had prepared to burn, and thereupon took up the old mortgage ; that, between May 21 and August 21, Josselyn had paid both Upham and Howe money on account, but no settlement had been made between them, but there was a balance then due to Upham and also to Howe from Josselyn; that on October 1, 1867, the kiln of bricks last mentioned had been burned, a portion of them had been bargained and delivered and were being delivered, and some, but not all, paid for, and a new kiln of bricks had been prepared to burn, and Josselyn, being desirous of obtaining pay for such of the bricks as he had bargained and sold and which were not paid for, in consideration that Upham would release his claim thereon and consent that he should receive pay therefor, made the mortgage in question upon the unburned kiln of bricks, running to Howe and Upham. Howe testified that the understanding with Josselyn was, that, after the bricks were sold, Howe and Upham had no further claim on them or right to them.</p> <p>“ The defendants asked the judge to rule as follows : 11. The plaintiffs must prove that the debtor was insolvent at the time of making the conveyance; that he made it with a view of giving a preference to a preexisting creditor; that he had at the time reasonable cause to believe himself insolvent; that the creditor, at the time of receiving the conveyance, had reasonable cause to believe that the debtor was insolvent and had also reasonable cause to believe that the debtor intended the conveyance as a fraudulent preference of him against the provisions of the bankrupt act. 2. If the mortgage in question was given in consideration that Upham would release his claim upon other property secured by the mortgage of August 21, and at the request of Josselyn, in order to enable Josselyn to give title to and recover pay for property, described in that mortgage, which he had sold, and the transaction was merely the substitution of one security for another, then the giving of this last mortgage was not an unlawful preference, even though Josselyn was insolvent, and the mortgagees had reasonable cause to believe it. 3. If the mortgage was made in good faith by Josselyn, solely with intention to obtain means for the continued prosecution of his business, and with the intention and expectation that he would be able to do so, and with no intent on his part to give a preference, the conveyance would not be invalidated although the parties intended that the mortgage should also operate as security for the then existing debt. 4. Although the jury are authorized to infer the intent to prefer from the fact of preference, yet they are not at liberty to do so if the evidence of the facts and circumstances attending the transaction leads to the conclusion that this mortgage was given in the usual and ordinary course of the business of the parties, and not with the intent to prefer, but as a substitution of one security for another released and given up.’</p> <p>“ The judge refused to rule as prayed for, except as to the defendants’ first proposition, which was given substantially as prayed fpr; but gave the following rulings : ‘ If the understanding was, under the mortgage of August 21, that Josselyn should remain in possession, and be allowed to manufacture bricks and to sell them from time to time, as he should find convenient, and, after manufacturing an additional quantity of bricks, should make a new mortgage including such additional bricks, such agreement on his part would be a mere executory contract, and not a conveyance. If such new mortgage were to be after-wards given, its validity would depend entirely upon the circumstances under which it was made, and the state of things existing at that time. If such new mortgage covered, or was intended to secure, anything due from him for advances made previous to its date, it would be a mortgage to secure a preexisting debt, and open to all objections which could be taken to it on that ground under the provisions of the bankrupt act. It would make no difference that the new mortgage was intended as a substitute for so much as had been withdrawn from the first mortgage, or merely to keep up the security, if the jury are satisfied that bricks included in the first mortgage had been sold or disposed of with the express or implied consent of the mortgagees, and the new mortgage was called for by the mortgagees for the purpose of restoring the value of their security; and it would also make no difference that there had been such previous agreement about keeping up the security by giving such new mortgage. If the sales were made with the mortgagees’ consent, express or implied, and the new mortgage was given by Josselyn in order to get permission to collect any money due on such sales, it would not have the effect of rendering the new mortgage any the less a security for a preexisting debt.’</p> <p>“Thereupon the defendant asked the judge to give the following additional rulings: ‘ But if the new mortgage was given in consideration that the mortgagees would release all claim to bricks which had been bargained and delivered, but not paid for, and that Josselyn might receive pay for them, then it would be a substitution of one security for another If the jury are sat* isfied upon the evidence that the mortgagees did not intend to release their security under the mortgage of August 21 until they received new security therefor, and the new security was given in consideration of such release, and the new security was intended as a substitution for the old, it would make no difference that the bricks had been removed, sold and delivered, if the same had not been paid for before the making of the new mortgage, although they were removed with their knowledge and without any objection on their part;’ which rulings the court refused to give.</p> <p>“ The defendant Upham was called as a witness in his own behalf, and was asked the following question : ‘ At the time of taking the mortgage in question, what was your belief as to Josselyn’s intention in making the mortgage in question, and also what was your belief as to his solvency?’ The plaintiffs objected, and the judge excluded the evidence.</p> <p>“ The defendants asked to have the following questions submitted to the jury: 1 Did Upham intend to release his claim upon bricks sold and unpaid for without getting other security for the same; and did Upham release his claim to bricks sold and unpaid for, and consent that Josselyn should perfect a title to the same in the vendee, and receive pay for the same in consideration of giving this mortgage ? ’ The judge refused to submit these questions, but submitted the following: ‘ Did Josselyn, between August 21 and October 1, sell and deliver bricks with the express or implied permission and consent on the part of Upham ? ’ to which the jury answered ‘ Yes.’</p> <p>“ The judge also instructed the jury as follows: ‘ If Howe and Upham knew, or had reasonable cause to believe, that Josselyn was insolvent, and if they, with that knowledge, took nearly all his property to secure themselves, and at the same time knew that the law required that his property should be divided equally among his creditors, these facts would go far towards supporting the inference that they had reasonable cause to believe that Josselyn intended this mortgage as a preference.’ “ To all which rulings and refusals to rule the defendants except,”</p>

<p>A levy of execution on real estate of a judgment debtor who has applied for the benefit of the insolvent laws, (Gen. Sts. c. 118,) made six years after the first publication of notice of the issuing of the warrant, and the assignment in insolvency, is not valid against the title of the assignee, although he has not recorded the assignment in the county where the land lies, and the judgment creditor has no actual knowledge of it.</p>

Tort for deceit in making false and fraudulent representations to the plaintiff touching the business and profits of a firm of which the defendant was a member, and thereby inducing the plaintiff to buy the interest of the defendant in the stock and good will of the firm. A count in contract for the same cause of action was joined. Answer, a general denial and a plea of a discharge in bankruptcy.

<p>Contract on a promissory note signed by the defendant, by which, for value received, he promised to pay the plaintiff" or order $72.59,ei as soon as I receive the pay for a certain lot of shoddy which I have this day bought of him and sold to Merriam & Simpson.”</p> <p>At the trial in the superior court, before Reed, J., the plaintiff proved that the defendant made and delivered to him the note declared on, and also testified that the defendant, after the note was given and before action brought, told him that he had received pay for a part of the shoddy from Merriam & Simpson; that they had returned to him the rest of it, because it was not according to the sample sent by him; and that this part returned he had sold to other parties and had received pay therefor, but less than he had expected to receive from Merriam & Simpson. There was no other evidence in the case.</p> <p>The presiding judge ruled that “ in order to maintain this action the plaintiff was bound to show that the shoddy referred to in the contract as sold to Merriam & Simpson had been paid for; that it was not enough to show that Merriam & Simpson, after purchasing, paid for part and returned the rest of the shoddy to the defendant as not being according to the sample on which they bought, and that the shoddy had since been sold by the defendant to other parties at a less price' and paid for by them.” On this ruling the plaintiff submitted to a verdict for the defendant, and alleged exceptions.</p>

Replevin of a hog. Trial and verdict for the plaintiff in the superior court, before Eevens, J., who allowed a bill of exceptions of which the material part was as follows : “ There was evidence tending to show that the defendant bargained the hog to Job Plympton before it was altered, with an agreement that the defendant was to alter the hog and keep it until it fully recovered from the operation, if it did fully and successfully recover therefrom; if it did not so recover,…

Tort against Bassett and Joab S. Holt for breaking and entering a mill occupied by the plaintiff, taking and carrying away a shaft, and interrupting thereby the plaintiff’s business.

<p>Contract. The first count of the declaration alleged that the plaintiff bargained with the defendants for the use of his horse to cover their mare; that the horse covered the mare ; and that the defendants owed the plaintiff $12. The second count was on an account annexed, the only item in which was for services of the plaintiff’s horse to cover the defendants’ mare.</p> <p>At the trial in the superior court, before Reed, J., the plaintiff contended that there was evidence that each of the defendants promised, after the services were performed, that, if they had been performed, they should be paid for. The defendants contended that there was no such evidence.</p> <p>The defendants requested the judge to instruct the jury “ that, to maintain the second count, the plaintiff must show that the service rendered was beneficial and was by the request of the defendants, or with such knowledge and assent of the defendants, at the time or afterwards, as would be equivalent to an acknowledgment of indebtedness, before the law would imply a promise to pay; and that if the plaintiff’s act was voluntary, officious, unsolicited, unknown to the defendants at the time, and not necessarily beneficial, it created no debt or obligation upon the defendants to pay therefor without a subsequent promise by the defendants to pay.” The judge refused to give this instruction. The instructions, given and refused, which related to the first count are now immaterial.</p> <p>The judge instructed the jury that “ they could only find a verdict for the plaintiff on one count; that whether testimony as contended for by the one side or the other had been given was a question for them ; that if they found that the testimony above stated, as contended for by the plaintiff, had been given, then, if the services cwere performed, they could find a verdict for the plaintiff; that ordinarily, when one of two owners of personal property employed a „person to do work upon it, both owners were liable; but that in this case they need not regard this role, but give a verdict for the plaintiff against both the defendants only in case they found that both had promised substantially as was contended for by the plaintiff as above stated, and that the services had been performed. On other matters the judge instructed the jury in a manner not objected to. No question was raised as to the effect of such promise, supposing the jury to find that such promise was made.”</p> <p>The jury returned a general verdict for the plaintiff, and, on a subsequent day in the term, the verdict, on the plaintiff’s motion, was so amended as to make it a verdict upon the second count only. The defendants alleged exceptions.</p>

<p>Contract for breach of the covenant of warranty in a deed of a grist mill on a stream in Petersham.</p> <p>The defendant’s ancestors, and afterwards himself, had owned continonsly since 1802 the grist mill and also a saw mill situated, as appeared by a plan, on the other bank of the stream, opposite the grist mill. In 1863 the defendant conveyed to David Crockett, by warranty deed, the “ saw mill, with the mill yard and fixtures, privileges and appurtenances, belonging to said mill and yard, together with the stream from said saw mill half way to the grist mill; ” and in 1865 conveyed the grist mill to the plaintiff by the warranty deed in suit, describing the mill as “ bounded west by the middle of the main brook. The grist mill to have the first privilege of water necessary for running the same as a good grist mill.”</p> <p>“ Since the deed to the plaintiff, Crockett claimed a portion of the water of the stream for his saw mill when the plaintiff needed the same for his grist mill. Since 1802, until the conveyance to Crockett, the saw mill was used only a portion of the time, and used only so much of the water as the grist mill did not require, and as was not necessary to run the same as a good grist mill; and this was well known to Crockett when he bought.”</p> <p>The case was submitted, on facts agreed substantially as &cove stated, to the judgment of the superior court, and, on appeal, of this court. If the court should be of opinion that “ Crockett was entitled to interfere with the rights warranted to the plaintiff in the deed to him,” the case was to be sent to a jury to assess damages; otherwise judgment to be entered for the defendant.</p>

<p>Complaint by Powers and Timothy Lincoln under the Gen. Sts. c. 149, for flowing their meadow in Princeton. The respondent, in his answer, set up a prescriptive right to flow the meadow.</p> <p>At the trial in the superior court, before Morton, J., it appeared that the meadow flowed was situated below the respondent’s mill, and that, when the mill was in operation, the channel of the stream which conveyed away the water being narrow and obstructed, the water spread over the meadow.</p> <p>The respondent testified as follows: w I bought the mill in 1832 and sold it in April 1867. Until 1837, we used to fill the pond and run the mill during the winter, and draw off the pond in the summer. After that, and until the present time, the dam has been kept up the year around, and the pond has never been drawn off. After 1837, we used to run pretty much all the time when there was water. I have a farm to carry on, and used to stop a few days to get planting and haying done. When it was dull weather we used to run it, but I was not in the habit of running it in haying time. I never ran it in hay time. Have sometimes been till the middle of August getting hay. Have run in July when I did not make hay. Usually made hay in July. When I made hay, I stopped and took my bands and worked on the farm. It took three or four weeks to get the hay, and when it was dull it took longer. We calculated to run the year round when we had water, excepting haying. We sometimes stopped in harvesting. There has been no substantial change in the flowing of the water for thirty-six years. It has always flowed in the same channel, and flushed over the complainants’ meadow.”</p> <p>On cross-examination, he said: “ In 1837,1 made an arrangement with the landowners above; and since that I have flowed the year around. I did not make any arrangement with Powers particularly. Welch (at that time one of the part owners of the meadow) came to me, as long as he could, in haying time, and wanted to know how long I was going to stop the mill, because he was going to get his hay out. I guess I was haying all the time they were. I generally did not get through till they did. I might have, some years. I think Welch came to me for about ten years. I think he did not come up for the last part of his life, for two or three years. After that, Powers came to me several times to have me stop. I did, and was willing to accommodate him. I think I did not always stop. I had a right to flow, but always wanted to accommodate him. I think I did not every time. In 1858, Lincoln came up and ordered me to stop, and I told him I should not stop at any rate. It was some time in August. They were later than usual. I was always "willing to accommodate them, and give them a fair chance to get their hay .out. I have always given them a fair chance to get their hay out. I might have gone round to the farmers once or twice. I told them I could not thresh their grain, as I wanted to let them get their hay out. I don’t know but I might have told the men at the mill not to let the water down while they were getting out hay.”</p> <p>On reexamination, he said: “ They generally got then.’ hay out in season till 1850. For a number of years past, they have been very late in getting out their hay. They have been as late as the last of September.”</p> <p>The respondent’s counsel, on inquiry by the judge, having said that he did not expect to essentially alter the foregoing statement, the judge ruled that “ there was no evidence which would warrant the jury in finding that the respondent had any right by prescription to flow the complainants’ land during the months of July and August without compensation.” ■ Thereupon the respondent submitted to the following verdict: “ The jury find that the respondent dl<3 flow the land of the complainants from three years before the date hereof, to April 1,1867, and not afterwards ; and that he had the right to flow the land during all seasons of the year, except during the months of July and August, and not during said months ; ” and alleged exceptions.</p>

<p>Complaint under the Gen. Sts. c. 149, for flowing the complainant’s land by a dam belonging to the respondents, from January 1, 1865, to August 10, 1868, the date of the complaint.</p> <p>At the trial before a sheriff’s jury it appeared that the land flowed consisted of three tracts; the first in Mendon in this county; the second in Bellingham in the county of Norfolk, separated from the first by Charles River ; and the third in Bellingham, and not adjoining either of the other tracts; that the dam was originally built in 1821, raised higher in 1859, and purchased by the respondents in 1863; that on April 13,1867, the complainant purchased the land flowed ; and that a former owner of the dam had paid to a former owner of the complainant’s land, from year to year, damages for flowing, for the period of three years ending in 1854.</p> <p>There was evidence, admitted against the objection of the respondents, tending to show that since about 1863 the flowing of the lands in summer by the dam had rendered them less productive than formerly when they were flowed only in the winter ; that .the quality and character of the land had, by reason of the maintenance of the dam, gradually changed, since the erection of the dam in 1821, from grass land to swamp land; and that a passageway across the river between the first two tracts was, upwards of twenty years ago, in consequence of the maintenance of the dam, submerged, and so continued, and by reason thereof the owners of the second tract could not get their crops therefrom or pasture cattle there, and the tract had deteriorated and run to waste.</p> <p>The respondents asked the sheriff to rule that damages were not recoverable for injury to either of the tracts in Norfolk; “ that in estimating damages regard should be had to the state and condition of the land at the time the complainant became the owner thereof, and such state and condition should be made the basis of computing damages; that if, by the effect of the dam as. maintained by former owners, the land, or any part thereof, was changed in its character, as the natural and necessary consequence of keeping water upon it, from grass land to swamp land, and after such change the complainant purchased it, the jury, in giving damages against the present owners of the dam, could not adopt, as a basis, the state and condition of the land before any dam was maintained, but should have regard to its state when the complainant became the owner thereof; that if the former owner of the land received yearly damages for flowing the land from the former owner of the dam, and any change in the condition of the land was then in progress, no damages could be given for such change; that if, in consequence of the maintenance of the dam by a former owner, a passageway across the river was submerged and destroyed, (the land being then owned by a former owner,) and such owner of the land, being thereby deprived of access to it, left it un pastured and uncultivated, so that it ran to waste and deteriorated in value, and while in this condition the complainant purchased it, he could not recover damages against the present owners of the dam on the basis of what the condition of such land would have been, had it been pastured and cultivated, although the passage continued to be obstructed by the respondents’ dam; and that if, in consequence of flowing in the summer season, done by a former millowner, the land was changed in its character and became less productive, but before the complainant became the owner, the jury could not give damages against the present owners of the dam, flowing in the summer, oh the basis of the state of the land before such summer flowing originally took place.”</p> <p>The sheriff refused to give any of these instructions, and instructed the jury “that in estimating damages regard should be paid to the state and condition which the several tracts belonging to the complainant would have been in in their ordinary condition, if no dam had been erected; and that the change of ownership of the land flowed or damaged was of no consequence in estimating the annual or gross damages.” The jury found for the complainant, and the respondents "alleged exceptions, which were overruled in the superior court, and thereupon they appealed.</p>

<p>The Eev. Sts. c. 116, § 2, (Gen. Sts. c. 149, § 2,) gave C., a millowner, no right to flow back the water of a stream by building his dam so as to injure an existing dam higher up the stream or to obstruct the clearing or repairs of the gateway therein, though such upper dam was used only to create a reservoir for a mill below O.’s dam; and on the sale of this mill to one and of the upper dam to another, and the erection of a mill at the upper dam after the building of C.’s dam, the owner of the upper mill and dam continues to be protected against a flowing back by C. to the same extent as before, though to no greater extent.</p>

<p>Jnder a bill in equity on which the defendants had been enjoined from flowing, by their dam, water back upon the wheels in the plaintiff’s mill, and the plaintiff had applied for an attachment against the defendants for cbntempt in violating the injunction, the parties entered into an agreement that the case should be sent to an engineer, as master, to determine and report to what height the water could be raised by the defendants’ dam without setting back water upon the plaintiff’s wheels, and whether, since the injunction, the defendants had raised the water so as to set it back upon the plaintiff’s wheels; the defendants to keep the water at the height so fixed during the pendency of the injunction; if it should be found that the water had been raised beyond such height since the injunction, the defendants to pay the costs of the application and hearing; the plaintiff to be entitled, if he saw fit, to apply further to the court in regard to the matter of the contempt; aiid on the coming in of the engineer’s report, either party to be at liberty to introduce further evidence on the point whether .the defendants had raised the water so as to set it back on the plaintiff’s wheels since the injunction; and an order of court was passed referring the case to the master, in substantial conformity with this agreement. Later the parties agreed that the master should indicate the height to which the defendants’ dam might be maintained until he should finally determine the height at which it might be kept. Held, that these agreements were not a waiver of the plaintiff’s right, on the coming in of the master’s report, to apply for an attachment against the defendants for the alleged contempt in violating the injunction before the agreements were made.</p> <p>A case was referred to a master to report whether the defendants had raised the water of a stream, when it was not unusually swollen, so as to set it back on the wheels of the plaintiff’s mill. Held) that the master did not go beyond the terms of the reference by reporting that the defendants had “negligently and knowingly” done so.</p> <p>A master, by leave of court, may amend his report by correcting an error of expression so n as to correctly present the result at which he has arrived, without giving to the parties the notice required by the Thirty-first Rule in Chancery.</p>

<p>To an action on a judgment recovered, in another state, whose law and practice are not shown to be different from our own, upon a debt provable in bankruptcy, after the debtor had been adjudged a bankrupt under the XT. S. St. of 1867, c. 176, his certificate of discharge in bankruptcy is no defence.</p>

<p>Writ of entry to foreclose a mortgage of land in Sutton, made to the demandant by his brother, Freeman Freeland, and purporting to be in consideration of $5500.</p> <p>At the trial in the superior court, before Brigham, C. J., without a jury, the tenant, who was the wife of Freeman Freeland, proved that George F. Verry was duly appointed assignee in insolvency of her húsband ; that the estate of her husband was duly assigned to Verry by the judge in insolvency; “that Verry entered upon and took possession of the mortgaged premises, the demandant not being in possession; that, for the purpose of showing a disaffirmance of the mortgage, Verry, when so in possession, orally notified the insolvent and the demandant that he should contest the mortgage as fraudulent as against creditors, directed the tenant to hold the premises as his agent, (she at the time living thereon with her husband,) and complained against the demandant for embezzling the estate of the insolvent, in the court of insolvency, examined him upon such complaint as to the circumstances and consideration of the mortgage, and brought a bill in equity against him; ” that debts were proved against the estate of the insolvent, which were outstanding at the time of making the mortgage ; and that Verry, as assignee of the tenant’s husband in insolvency, executed and delivered to her a deed in which, for the consideration of $1500, he quitclaimed to her and her heirs all his “ right, title, claim and demand as such assignee, and all the right, title, interest, claim and demand of Freeman Freeland on the day of the first publication of notice in said case, which was conveyed and assigned to said Verry by virtue of the assignment” aforesaid, in and to the mortgaged premises.</p> <p>The tenant then offered to prove that “the mortgage was made by said Freeland for the purpose of hindering, delaying and defrauding his creditors, in which purpose the demandant participated; that the mortgage was without consideration as between the parties; that the assignee orally agreed with the tenant to sell her the land covered by the mortgage, free and discharged of the mortgage, on the ground that the same was fraudulent against creditors, without consideration, and conveyed upon a secret trust for the benefit of said Freeland ; that in pursuance of said agreement he made the deed aforesaid to her; that said deed was executed with the oral agreement that it was a conveyance of the land discharged and free of the mortgage, and with a distinct oral agreement that the tenant should have the same right to contest the mortgage that said assignee would have; and that thereupon the assignee delivered possession of said premises to the tenant, who had ever since been, and still was, in possession of the same.” But the judge rejected the evidence thus offered, ruled that it was not competent, and found for the demandant.</p> <p>On the motion for a conditional judgment, the demandant introduced evidence tending to show that the mortgage was given to secure claims by the demandant on the tenant’s husband to the amount of $4000, and also to secure the demandant against liability on a bond given by him conditioned to pay $1500 upon a certain contingency on account of the tenant’s husband. The tenant then offered evidence tending to show that the claims were not real but pretended, and that the demandant incurred no liability under the bond; but the judge refused to admit it, and ordered judgment for the full amount claimed by the demandant. The tenant alleged exceptions.</p>

<p>The duty imposed on a person appointed, by order of court, in a suit in equity, “ commissioner to hear the parties, and to report facts, and such of the evidence as either party may desire,” is that of a master in chancery; and his conclusions on questions of fact have every reasonable presumption in their favor, and are not to be set aside without clear proof of mistake or error.</p> <p>The defendant, having covenanted with the plaintiff on the dissolution of a firm for the manufacture of daguerreotype materials, of which they had been members, u not, directly or indirectly, to enter into, or carry on, or in any way be interested in, or furnish to any person or persons information in regard to,” that business within certain limits, nevertheless forme! with a third person a new partnership within said limits for that business, had the who! s financial charge of the new partnership, travelled about the country, visiting the customers of the old firm, and introducing the goods of the new partnership, and received a commission on all sales. Held, that these facts warranted a finding that th« defendant was liable for all the injury occasioned to the plaintiff by the establishment of the new partnership.</p> <p>A. and B. entered into an indenture in which B. covenanted not to be interested in a certain business within a certain county, and also covenanted not to be interested, for five years in the same business within the United States. Held, that B. was liable for a breach of the first covenant, although the second covenant might be void as in restraint of trade.</p>

Complaint to the police court of Fitchburg against the defendant, for illegally selling intoxicating liquors. The defendant was convicted, and appealed to the superior court.

Indictment containing three counts. The first count charged the burning of a dwelling-house in the night time; the second charged the burning of a barn in the night time, by means of which said dwelling-house was burned and consumed; the third charged the burning in the night time of a barn within the curtilage of said dwelling-house.

<p>paths marked out, graded, paved, repaired and kept clear of snow by a town or city, crossing common ground used by the inhabitants as a place of public resort or recreation, and serving as one means of communication between public streets with which they connect, between posts such as are usual at the entrance of walks designed for foot passengers, are not ways 11 opened and dedicated to the public use ” within the meaning of the Gen. Sts. s. 43, § 82, for damages arising from defects in which the town or city may be liable ta in action under § 83.</p> <p>If, in repairing a building belonging to a city, and used in part for municipal purposes, but in considerable part also as a source of revenue by being let for rent, which is situated on a public common crossed by footpaths cared for by the city and used by the public for more than twenty years, the agents or servants of the city, acting by its authority, dig a hole in the ground adjoining, and negligently leave it open and unguarded, so that a person walking on one of the paths and using due care falls into it and is injured, the city is liable to an action at common law for the injury.</p>

<p>An action for the conversion of interest coupons of United States bonds cannot be maintained by the owner, from whom they have been stolen, against a person who has received them, as an agent for exchange, in good faith and without gross negligence, from a party to the theft, and has transferred them by delivery and paid the proceeds to his employer, without benefit to himself, and without any demand or notice from the plaintiff.</p> <p>In an action for the conversion of stolen coupons, to which the defendant sets up as a defence that he received them in good faith from a third person, a letter received by the defendant, purporting to be written by such person and containing two of the coupons, is admissible in the defendant’s behalf, to show the manner and circumstances of his receiving the coupons, without proof of handwriting.</p>

<p>A petitioner for partition of land is not entitled to judgment for any share, merely on prour that he is a descendant of one who owned an undivided portion of the land, without any evidence to show how many descendants there are, or that he is the only descendant.</p>

Whit of entry, dated February 25, 1868, to recover a parcel of land in that part of Bridgewater called Titicut. Plea nu* disseisin, with a specification of defence that the tenants had taken the demanded premises for a school-house, by virtue of proceedings in 1866, under the Gen. Sts. c. 38.

<p>A. demised a messuage to B. for the winter at a certain yearly rent, payable quarterly and soon after the end of the three months wrote to B. that he could allow him to remain only for a short time on sufferance, to leave at a day’s notice. Held, that B. was bound to pay rent at the agreed rate until he left, although rent at that rate was more than the occupation of the premises was reasonably worth.</p> <p>The owner of a house and barn put up in the house several marble slabs, laid upon but not fastened to brackets screwed into the walls, and also in 1855 placed in the cupola of the bam a bell, hung on an axle resting upon a wooden framg, which was placed on the platform of the cupola and secured to it by cleats fastened by nails. In 1864 he conveyed the house and barn, but remained in possession as tenant of his grantee. Held, that, on leaving the premises in 1867, he might remove the slabs, but not the bell.</p> <p>In the fees for serving an execution for possession of land, an officer cannot include a charge for “assistance,” or for “extra time and trouble?” nor, unless he makes the certificate required by the St. of 1864, c. 274, can he be allowed for the use of a horse and carriage.</p>

<p>Writ of review to reverse a judgment rendered against the plaintiff in review, on his default, in an action of contract begun on November 26, 1867, by the defendant in review, as executor of Harvey Whitcomb, on a promissory note for $230, dated November 4, 1847, signed by the plaintiff in review, and payable on demand to Whitcomb or order. The answer filec by the plaintiff in review left the proof of the making of the note to the defendant in review, set up the statute of limitations, and alleged that he gave a note and mortgage to Whitcomb to secure a collateral obligation; that Whitcomb abandoned al claim on said obligation; and that the plaintiff in review promised to pay him taxes to the amount of $10 or $12, which he had paid “ on account of said mortgage.”</p> <p>At the trial in the superior court, before Pitman, J., the only question raised was, whether the defendant in review had proved such a part payment as to take the note out of the operation of the statute of limitations. The defendant in review testified that Whitcomb, before his death, handed him the note; that at the request of Whitcomb he called on the plaintiff in review about August 3, 1867, and told him that “ he had come to settle some business for Harvey Whitcomb about an old mortgage;” that the plaintiff in review said, “ I suppose he wants his money; ” that in the course of conversation the witness said, “ You have paid $12 on it ? ” and the plaintiff in review replied, “ Yes, I have sent him $12,” but did not say what it was on ; that the plaintiff in review said he would go and settle with Whitcomb; but that some days afterwards he told the witness that he found Whitcomb too sick to attend to the business, and it would have to be settled with the executor; and the witness further testified that he found, as executor, no charge of Whitcomb against the plaintiff in review, and no claim of any kind except the note in question. Upon cross-examination he testified that he never had any. other conversation with the plaintiff in review about his affairs with Whitcomb during the latter’s lifetime, and that at the conversation above mentioned nothing was said about any note, or the amount of the claim, or whether Whitcomb had one or more demands against the plaintiff in review. The widow of Whitcomb was called as a witness, for the purpose of fixing the time of the payment of the $12, and was allowed, against the objection of the plaintiff in review, to testify that in July 1867, about a month before her husband’s death, the wife of the plaintiff in review paid to her, at her house, $12. Neither the plaintiff in review nor Whitcomb was present, and there was no evidence that either ever knew of the transaction. Upon this evidence the defendant in review rested.</p> <p>“ The plaintiff in review testified that the defendant in review called on him, told him he was settling the estate of Whitcomb, and demanded of him payment of a note, the principal of which was $230, and interest twenty years, and taxes paid by Whit-comb on said principal sum for twenty years; and was asked by his counsel to repeat the conversation touching said note, taxes and interest, for the purpose of showing that the defendant in review then insisted upon the claim for taxes as a part of the debt to Whitcomb’s estate, and also for the purpose of showing that the defendant in review then asked him what he paid $12 for, that he then stated that it was for something else than interest, and that the defendant in review did not dispute the reply, or claim that he had ever given him a different account; and the counsel of the plaintiff in review specially disclaimed offering his statement in that conversation as evidence of the fact stated by him at that time, but offered the testimony simply to discredit the defendant in review. The presiding judge, upon the objection of the defendant in review, excluded the conversation, and ruled that nothing which Litchfield said could be given in evidence.”</p> <p>“ The plaintiff in review was also asked by his counsel to relate a conversation between himself and the defendant at thvs time of the service of the writ in the original action, for the purpose of showing that the defendant in review pressed him to tell what he paid Whitcomb for, 1 if it was not for interest ’ upon the note sued on ; and that he told what it was for, stating that it was for taxes, as set up in the answer; and that the defendant in review did not deny then that it was for taxes, or suggest that the plaintiff in review had ever told him it was for interest. But the judge ruled that nothing which Litchfield said could be admitted. The plaintiff in review then said that the defendant in review asked him as above stated, and that the defendant in review did not dispute him when he said it was for something else than interest, or claim that he had admitted it was for interest; but the plaintiff in review said that he found himself confused by trying to separate the part of the defendant in review in the conversation from his own, and he could not give it further.”</p> <p>The plaintiff in review put into the case a mortgage which “recited that it was given to secure a note of same date, amount and payee as that declared on; but the time of payment was stated as five years from date. No such note was produced, and no evidence offered in regard to it. The defendant in review maintained that it referred to the note produced and was merely a misdescription.”</p> <p>“ The plaintiff in review contended that, if any payment was proved, it was a payment to reimburse Whitcomb for the amount of tax paid by him on account of money at interest» Upon this point the judge ruled that a payment to reimburse taxes, or on account of taxes, would not be such a payment as would take the note out of the statute; but if, as the defendant in review claimed there might be, there was any evidence that the parties treated note, interest and tax money as one consolidated debt, then a payment by the plaintiff in review to Whitcomb on such debt generally might be treated as a part payment of the note.</p> <p>•“ The plaintiff in review asked the judge to rule that there was not sufficient evidence to support a verdict for the defendant in review, and also that there was no evidence that the payment, if any was made, was made within six years and thirty days of Whitcomb’s death. But the judge ruled that it was competent for the jury to find upon the aforesaid evidence that it was made within that period.</p> <p>“ The plaintiff in review also prayed the -judge to rule that the handing of money by his wife to the wife of Whitcomb, as hereinbefore stated, was no evidence of a payment by him to Whitcomb, nor of the time of such payment, if any was made; but the judge ruled that the evidence, taken in connection with the evidence of the defendant in review, might be sufficient to prove the payment, and that it was within six years and thirty days of Whitcomb’s death.</p> <p>“ The plaintiff in review also prayed the judge to instruct the jury that there must have been an intention on t^e part of the plaintiff in review to make the payment, if any was made, as part payment of the note sued on, in order to take it out of the statute of limitations. But the judge declined to give the instructions in these words, but instructed the jury substantially as follows: That it was for the jury to say whether the note declared on and the note recited in the mortgage were in fact the same note; that if they were satisfied this was so, and that the note sued on was the only indebtedness of the plaintiff in review to Whitcomb, it would be competent for them to find from the evidence a sufficient part payment to take the case out of the statute ; but that the defendant in review must satisfy them that a payment was made within six years, that it was made upon this note, that it was made as a part payment of' a greater debt, and that it was made with this intention; that in law parties were presumed to intend the natural consequences of their actions when nothing appeared to the contrary; but that the burden on all these points was upon the defendant in review.”</p> <p>The jury returned a verdict for the defendant in review, and the plaintiff in review alleged exceptions.</p>

<p>Tort to recover for personal injuries alleged to have been occasioned to the plaintiff on April 15, 1868, by falling into a hole while he was walking, as a traveller, on a highway which the defendants were bound to keep in repair.</p> <p>At the trial in the superior court, before Pitman, J., there was evidence tending to show that for several years before the accident the plaintiff had suffered from a bad rupture ; that the rupture was very much aggravated by the fall j that at the time of the accident he was not wearing a truss; and that be could not bear one; but that he was in danger without one, and “ whether he could or ought to have worn a truss was one of the questions at issue upon the evidence.”</p> <p>There was also evidence tending to show that the plaintiff was not walking upon the highway when the accident occurred, but was stamping upon the road; and that he said to a person, at the first house to which he came after the accident, that “ he saw a sort of settling in the road, and was stepping upon it with his foot to try to find out what made it, and, as he was feeling round with his foot, it gave way and let him in ; ” and that he told another person, at the same house, that “ he saw a little defect or flaw in the road, and stepped on it and slipped in.” “ The plaintiff’s testimony was contradictory of these matters.”</p> <p>It appeared that, at the place where the accident occurred, a culvert or sluiceway, through which “ a wild and irregular stream ” ran, crossed the road; that in times of freshet the culvert was too narrow to discharge the water, and the water would overflow the road; and that there had been “quite a freshet” a day or two before the accident. There was evidence that part of one of the sides of the culvert had “ canted in,” and that behind it there was a cavity covered by a crust of earth, through which crust the defendant fell into the cavity. “ It was admitted by the defendants that in an unusual freshet the sluiceway was too narrow to discharge the water; but it was contended by them that it was not otherwise defective, and that, if there were any other defects at the time of the accident, they had not existed for twenty-four hours, and the defendants had not notice of them ; and these matters were in controversy.”</p> <p>“ The defendants offered to show that the plaintiff said that Job Wales, (a son in law and witness for the plaintiff at a former trial as well as at the present,) while going from the court house to the depot, after the former trial, and while the jury were out, called him a damned fool for walking off so fast, and that the plaintiff said in reply, ‘ it is all over now, and that he knew as well how to take care of himself as Wales; that the child was born now, and that whether dead or alive it would not make any difference; and that he sat up near the court at the table, and knew how to play it on the judge.’ But the judge excluded the evidence.</p> <p>“ The plaintiff called Lot Somes, the surveyor of highways for the district, and he, having testified on cross-examination as to the size of the hole being much smaller than the plaintiff had testified, and that when he looked at the sluice he did not discover anything out of order, except the canting of some of the stones, and that he considered it safe, was asked by the plaintiff whether he had not told [Eben] Ryerson that he, the witness, had informed the selectmen that the sluice was unsafe; and he said he had not. The plaintiff subsequently called Eben Ryerson, his brother, for the purpose of showing that Somes had stated to him that he had told the selectmen that the bridge was unsafe. The question was objected to, and Eben Ryerson was then told to stand down, and the judge directed Somes to be recalled for the purpose of making certain whether the attention of the witness had been called previously to a conversation with the plaintiff or with Eben Ryerson, and he was allowed to testify, against the objection of the defendants, that he had not told Eben Ryerson as above set forth. Eben Ryerson was then recalled, and allowed, against the objection of the defendants, to testify that Somes did so state to him.</p> <p>“ The defendants requested the judge to rule that, if the plaintiff could not without great danger walk about upon the highway without a truss, and if he was so walking without a truss, he could not recover, even though he could not bear a truss ; that if the jury should find that the plaintiff saw a defect, and was pressing upon it with his foot, it was a want of care on his part; and that the plaintiff could not recover unless the jury should find that the immediate and particular defect which was the immediate and proximate cause of the injury either had existed twenty-four hours, or that the town had had reasonable notice of it.</p> <p>“ The judge declined so to rule, and instructed the jury upon these points as follows: That the plaintiff, though disabled, had a right to use the highway, and, if he was injured, while in the exercise of due care, by a defect therein, to recover the damage suffered by him; that what might be due care for a person in health and of sound body, would not be for the plaintiff; that his condition imposed upon him more than ordinary care and caution, and the jury must be satisfied that he used a degree of care proportionate to his condition; that his failure to wear a truss was a matter for the consideration of the jury in connection with the evidence in the case, but was not, as a matter of law, of itself a bar to his recovery; that the plaintiff must have been at the time travelling upon the highway in order to entitle him to recover; that if he saw any defect in the way, which was spoken of as a flaw or settlement, and was pressing upon it with his foot, from curiosity or otherwise, and not in the ordinary pursuit of his journey, he could not recover; but that if he was travelling, it would not, as a matter of law, be necessarily a want of care to step upon a defect in the way, but a matter for the jury to consider, in connection with the question of due care, depending of course very much upon the nature and extent of the defect, if any, which they should find was apparent at the time ; that it was admitted by the defendants that the sluiceway, as constructed, was too narrow; that if the sluiceway as originally constructed was too narrow, it was a defect; that the want of repair of the road, which caused the plaintiff’s injury, must have existed twenty-four hours, or have been brought to the reasonable notice of the town; and that such want of repair or defect must be one that could have been prevented by ordinary diligence and care; but that in the present case, if there was a defect in the original construction of the sluiceway or bridge, by which the earth Was liable in a freshet to be washed away so as to produce the cavity which existed, or if the stones of the wall were fallen in, canted, or otherwise loosened, so as to cause the earth naturally to give way, and to indicate such a state of things as the natural consequence, and these conditions had existed for more than twenty-four hours, or the defendants had reasonable notice thereof, this would satisfy the requirements.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>A deed of land to take effect at the grantor’s death is good as a covenant to stand seised to the grantee’s use, notwithstanding the absence of any relationship between them by blood or marriage.</p> <p>On an issue of title between a grantee and the grantor or his heirs, not involving fraud in procuring the deed, the consideration of the deed is no.1 open to inquiry.</p> <p>On an issue of title between a grantee and an heir of the deceased grantor, the grantee to not a competent witness in her own behalf, under the Gen. Sts. c. 131, § 14. to prove performance of a condition on which the deed was given.</p>

<p>A. fund bequeathed in trust to pay the income to one until his death and then the capital to another, included shares in the stock of a railroad corporation. This corporation, out of its net earnings accumulated during the term of the trust, bought in the market part of its own stock; invested other such earnings, to an amount equal to twenty per cent, of the par value of the residue of its stock, in property a large portion of which was not required for the use and improvement of the railroad; and voted to create a number of new shares, of the same par value, to be issued and disposed of as the directors should deem proper. The directors then voted to offer to the individual stockholders the right to take part of the new stock at par, in the proportion of twenty per cent, of a new share for each old share held by the taker, and that, if any individual stockholder should not avail himself of his right, they would dispose of it as they might see fit; and at the same time, after a preamble reciting that “ whereas there is a large amount of surplus earning» invested in the shares and property of this company, which the stockholders have instructed the directors to divide,” they declared a dividend of forty per cent, on the old shares held by individual stockholders, payable “ twenty per cent, in the shares of the company which were purchased and are held by this corporation in its corporate capacity, and twenty per cent, in cash, derivable from the shares which the stockholders entitled to this dividend shall respectively pay for the new stock taken .by them under the terms of the preceding vote.” Held, that, of the avails of the dividend to the trustee, so much as was derived from the first twenty per cent, was paj-able as income to the life tenant; and so much as was derived from the second twenty per cent, accrued to the capital of the trust fund.</p>

<p>Under a declaration in contract, which alleges the receipt by the defendants, as common carriers, of goods for transportation to the plaintiff, and the injury of the goods, “through the fault of the defendants,” while in their care and custody, and before delivery to the plaintiff, the plaintiff may recover for an injury of the goods through their actual negligence.</p> <p>A special contract between the shipper of goods and a common carrier, for their carriage at the shipper’s risk of injury during transportation, does not exempt the carrier from 11a* bility for an injury caused to the goods, during transportation, by his own negligence.</p>

<p>Tort, with a count in contract, by Pratt and Harrison G. Brigham, against the Ogdensburg and Lake Champlain Railroad Company, a corporation, and John G. Smith and four other individuals named, “ as they are trustees and managers of the Vermont Central Railroad and of the Vermont and Canada Railroad,” to charge the defendants with the value of eleven horses killed, and the loss in value of five other horses injured, by being burned in and with a car on the Vermont Central Railroad, while in course of transportation from Potsdam Junction, in the state of New York, and other intermediate stations, to Boston. Answer, a general denial, and allegations that any loss which occurred was the result of the plaintiffs’ negligence, and that the horses were transported by the defendants under a special contract and at the plaintiffs’ own risk. Trial, and verdict for the plaintiffs, in the superior court, before Rockwell, J., who allowed a bill of exceptions substantially as follows:</p> <p>“ The plaintiff Pratt testified, in substance, that he engaged transportation for the horses, of John Graves, the station agent of the Ogdensburg road at Potsdam Junction ; that he had been engaged for many years in buying horses in Northern New York, and had generally carred them at that place ; that he applied to Graves for two cars, and engaged them of him for his horses, and told him to bill one car-load to him, and the other to the plaintiff Brigham, without designating which to himself and which to Brigham; that the horses actually belonged to them jointly, but he did not remember saying anything to the agent about that, and only told him to bill them as stated ; that he had carred horses there before, and said nothing in particular, only that he wanted two good cars, and had them so billed as stated above; that the price for transportation to Boston was to be $85 a car; that that was the same price which he had generally paid before, and was so stated or understood between them that, when the day arrived for loading the cars, he was shown two cars, and examined them ; that one of them was rotten at the top and forward end, and not fit to put horses in, and he partitioned off the front part of the defective car to the extent of some two feet; that he told the railroad men there that the car was not fit or suitable, and they told him they must take those cars or none; that the boards at the front end were dry and punky, so that the wood could be picked off with the fingers ; that he took them, and he or his men loaded the cars with the horses, putting into the forward end two tubs of butter, and a skeleton wagon, taken to pieces, with enough hay, not exceeding five pounds, to prevent the wheels and parts from chafing or rubbing, and littering the rest of the car back of the partition with hay; that the car, for two feet down from the top all round, was open for ventilation, having iron rods running down and being about six inches apart; that he put in what horses he had at Potsdam station ; put in some at Malone on the Ogdensburg road, and four more on arrival at Rouse’s Point on the Vermont Central, two of them being in the car which was subsequently burned; that he did not pay the freight in advance; that he had previously- always paid it at the end of the route in Boston; that he had two men aboard of the train, to take care of the horses, each having a free ticket for the passage; and that he did not pay the extra rates named in the printed tariff and rules hereinafter referred to.</p> <p>“ There was other evidence tending to show that the plaintiffs saw the cars when Pratt applied for them at Potsdam station ; knew-what their condition'was, and deemed them unsafe and unsuitable; but contracted to take them, as they were in a hurry to get their horses through ; and did it rather than wait for others; also, that the rule was, to allow a free passage for one man to each owner of horses to attend to them, a saloon car being provided for their accommodation on the train; and that the plaintiffs did not make known that they owned all tne horses jointly, but had them billed as before stated, so that two free passes could be had instead of one. The plaintiffs took no receipt or bill of lading or other paper for the horses, but a way bill was made and sent on the succeeding roads,”' entitled “ Way bill of merchandise transported by Ogdensburg and Lake Champlain Bailroad Company from Potsdam Junction to Boston vid Concord,” and describing two cars of horses as consigned respectively to Pratt and Brigham, one car to each, and for each consignee “one man in charge free.”</p> <p>“ The defendants contended that the car took fire and burned by sparks from the engine setting fire to the hay or other combustibles which they contended that the plaintiffs put in the car; the plaintiffs, on the other hand, contended that the fire took from sparks igniting the rotten and dry car, owing to its defective condition as aforesaid ; and evidence was introduced in support of their positions by each side respectively. The plaintiffs also offered evidence tending to show that their practice had always been to put hay as litter in the cars, as was done in this car; and that this was known to and permitted by the person in charge of the trains for the roads. The defendants controverted this, and put in evidence the tariffs and rules of the roads; and offered evidence tending to show that those rules and regulations had for some eight years been in force and rigidly enforced, and that they had meanwhile been posted up in various depots and station-houses on the road, and in the saloon cars where all the drivers rode, and that the plaintiffs knew of them. The plaintiffs controverted the evidence of knowledge by their own evidence. Pratt testified that, when he engaged the cars, he expected such privileges as others had, and engaged them only on the usual terms and at the regular rates, but did not ¿now of any published rules or rates at the time.”</p> <p>The copy of the “ tariffs and rules,” thus put in evidence, was on a single printed sheet, entitled, “ Vermont Central Bailroad Special Life Stock Tariff,” and, after reciting certain rates of freight per ton, contained, under the heading “ Directions,” the following provisions:</p> <p>“ At these rates the owners are to load, unload and feed their stock, at their own expense and risk, and assume all risk that animals may cause to each other or to themselves, or damage in sonsequence of their breaking from the cars, or being overcrowded, or otherwise. No risk will be assumed by the manr agers, nor damage allowed, unless specially agreed to when the animals are taken for transportation, and an additional price of 25 per cent, upon tariff rates paid.</p> <p>“ Any person paying freight on a full car, or more, of any kind of the above named live stock, will be entitled to one ticket only. A ticket will be furnished each drover, or person entitled to a free pass on the freight train, for the sole purpose of taking care of his stock, by the agent of the station where the stock is loaded.</p> <p>“In consideration of drovers being permitted to ride free on the same train with their stock, for the purpose of taking charge of it, it will in all cases be their duty, or that of shippers of live stock, to examine cars before loading, and, if they accept them, the stock will be at their risk of loss or damage occasioned by doors being displaced or otherwise.</p> <p>“ Hay, straw, and like combustibles, will under no circumstances be allowed in a car with live stock. Persons violating this rule will not only suffer all loss which the same may cause to his or their own stock, but will be held responsible for all damage caused by such violation, whether it be to individuals, or to the railroad.”</p> <p>“ The plaintiffs were allowed, against the defendants’ objection, to testify in chief to a conversation with John W. Hobart, a master of transportation for the Vermont Central and the Vermont and Canada Railroad Companies, to the effect that Hobart said to the plaintiffs that the freight was divided between the two roads; that he had seen a contract which made the Ogdensburg road liable ; that the Ogdensburg road received more of the freight than their road did — some two thirds of it; that he did not think their road was liable, but that the Ogdensburg Railroad Company was; that he had seen Mr..Brown, of that road, and that he did not think they were liable; also that, some four or five weeks after the fire, one of the plaintiffs asked Hobart for a copy of the way bill; that a clerk at St. Albans made ' it out and gave it to one of the plai stiffs; and it was offered and read, the defendants objecting and excepting.</p> <p>“The plaintiffs also testified that they received a letter from1 Hobart, which they could not find; that they went up and saw the defendant Smith and Hobart together, and had a talk; that Smith wanted to know to whom they considered it belonged to pay; that they said they considered the railroad folks liable; that they did not deny their liability, only on account of the hay being put in; that Hobart said, in presence of Smith, that he was acting for the road and would like to have the matter adjusted, but did not wish to commit himself any way ; and that he did not say what road he was acting for. The defendants objected to all these statements of and conversations with Hobart, as not evidence against them. The plaintiffs contended that Hobart’s statement was evidence against the Vermont Central and the Vermont and Canada Railroads, of which Hobart was master of transportation, but not against the other defendant corporation. The judge so ruled, and admitted the evidence, the defendants excepting.</p> <p>“ Hobart was afterwards called by the defendants, and testified that he was master of transportation of said two railroad corporations in Vermont, but had no connection with the Ogdensburg road; that the latter was a distinct corporation, and managed independently of the other roads; that each road had its rate of tariff in the line, and the agents of the Ogdensburg, when taking through freight to Boston, added their own charges for the transportation on their road to the rates of the other intervening roads, and fixed the freight at a round sum for the whole route ; but that the amount was paid at either end of the line, and divided between the several roads pro rata according to distance or miles traversed, a certain fixed percentage agreed upon and stated being first deducted to pay the terminal charges, and the settlements being made between the different companies monthly; that tariff rates were fixed by the mile on each road, and what either road took at the ends of the route, or at any intermediate station, was taken and carried over the roads, the price being given to the shipper in a round sum; and that the car taken on the Ogdensburg road goes through to Boston, each . successive road in the line having its own engines and separate men and operatives. This witness, in his cross-examination, stated that the roads divided the freight money thus received, in the round prices, once a month, first deducting the terminal charges, and then dividing the remainder into three parts.”</p> <p>A deposition' of the defendant Smith was also read at the trial, which contained the following questions and answers :</p> <p>'“Int. 7. ‘Was there any business connection between the Ogdensburg and Lake Champlain Railroad Company, and Vermont and Canada" and Vermont Central Railroads, at the time of said fire; and if so, what was it ? ’ Ans. 6 There was a general business arrangement between those roads, for the receipt and delivery of freight. It was at this time customary for the Ogdensburg road to bill freight through from Potsdam and other connecting points on their road and beyond, at rates agreed upon from time to time between that road and our roads. It was customary to collect pay for the full freight at the place of departure or of ultimate destination, and our roads and the Ogdensburg road shared pro rata. Cars loaded on the Ogdensburg road at this time and for a long time before were taken through, over our roads, to Boston, and other points, without transshipment; and wherever damage has occurred on these from defect in the cars or improper storage, the damage has been borne by the road owning the car or improperly loading it, without respect to what road the injury happened upon; and this has been the custom ever since I have been connected with the management of the Vermont and Canada and Vermont Central roads, which is about eleven years.’</p> <p>“ Cross-Int. 8. ‘ If you have stated, in your direct examination, that there was any business connection between the defendants’ roads, annex to your answer all contracts under which said connection exists, or copies of them.’ Ans. ‘ There is no subsisting writtén agreement between our roads and the Ogdensburg road.’</p> <p>“ The defendants contended that they were not jointly liable, if at all; that the plaintiffs were bound to prove that the parties named in the writ were common carriers, as alleged; and that simply being trustees and managers of the road, as described in the writ, if taken to be true, was not enough. But the judge ruled otherwise, instructing the jury that all of the several corporations were liable jointly, if either was liable, and for the whole loss ; and that the individuals named in the writ as trustees and managers of the Vermont Central and Vermont and Canada Railroad Companies were each liable as common carriers, and representing the said corporation, without further proof than might be found in the pleadings and evidence as hereinbefore recited.</p> <p>“ The defendants contended further, that if the plaintiffs, or either of them, knew the said rules and regulations at the time, the liability of the defendants as common carriers was limited and restricted thereby; that, if the plaintiffs put hay or other combustibles into the car, in violation of the said rules, or if, independently of them, they did this negligently and wrongfully, and it occasioned the fire, they could not recover; that, if the plaintiffs knew the cars which they took at Potsdam station were unsafe and unfit for the purpose on account of their condition, and yet they accepted them rather than wait a week for better ones, and the fire occurred because of said defect and without the defendants’ fault, the plaintiffs took the risk of them, and could not recover; that if the plaintiffs practised a fraud upon the defendants in regard to the ownership of the horses, and in having the horses billed, one car to each of them, to get a free ride for one more man, and did fraudulently so procure two free passages when otherwise entitled only to one, the contract was vitiated, and the defendants were not liable as common carriers; that if the direction and engagement was to bill and send the horses, one car to Pratt and the other to Brigham, they both being present when it was done, and engaging the transportation as individual owners of the horses in each car respectively, the contract would be single and not joint, and they could not recover; and that, the defendants being guilty of no negligence, the plaintiffs could not recover.</p> <p>“ The judge declined so to rule; and instructed the jury that, if the defendants were common carriers, they were obliged tc carry safely; that it was not like a case where action is brought to recover for negligence; that their duty of common carriers was to carry merchandise over their roads safely, unless prevented by act of God or enemies of the country, or some act or fault of the plaintiffs; that, in order to change the liability, it must be shown that a requisition is brought to the knowledge of the plaintiffs, that it was known then, at the time of the arrangement, and that the contract was made recognizing it and in view of it; that, if the plaintiffs knew that the defendants did not allow straw or other combustibles to be put into the car, if this was brought home to their knowledge, it entered into the contract and varied it to that extent, and if they then put it in without the defendants’ consent, and this occasioned the loss, they could not recover; that misrepresentations may be made so as to discharge liability, that is to say, representations material to the liability, and where a party is misled by it; that, if such misrepresentation is made to induce property to be billed to two persons and get a free pass for two, and this, under the facts proved, is material to the risk or liability, it would affect the liability of common carriers; and that the verdict should be against all of the defendants whom they should find liable, if any, for the whole loss, and for the value of the horses in Boston, and not in Vermont where they were lost or injured.”</p>

<p>The privilege of a widow, under the St. of 1861, c. 164, to waive the provisions made for her in her husband’s will, and become thereby entitled to a distributive share of his estate, is a personal right, which, if she is insane, neither she nor her guardian can exercise.</p>

<p>The fact that, very near where a workman is voluntarily employed in a manufactory, machinery not connected with his work is in motion, the dangerous nature of which is visible and constant, is not conclusive that he has taken on himself the risk of being injured by it, in modification of the implied contract of his employer to provide for him a reasonably safe place in which to do his work; and if, through inattention to the danger, he meets with such an injury while doing his work, and sues his employer therefor, the questions whether he met with it with due care on his own part, and by reason of the neglect of his employer to give him suitable notice of the danger, are for the jury; and the facts of his youth and inexperience, and the directions previously given to him by agents of the employer about the manner of doing the work, are to be considered upon the question of due notice; but the facts that the cost of covering the dangerous machinery with a box would have been slight, and that it was so covered soon after the accident, are immaterial.</p> <p>Evidence that a boy less than fourteen years old and unacquainted with machinery, aftei being employed in a cordage factory only one day, and then at a hemp-carding machine by the side of which there was no other such machine, and never having been in a similar employment before, was set to work by his employer in "a room where the noise was two or three times as loud as in railroad cars, at another hemp-carding machine where his work required his constant attention and his duty was to break off the ribbon of hemp at stated times by taking it in both his hands and drawing them apart in a manner in which he had been instructed; that by the side of this machine was a similar machine in motion, the gearing of which was unguarded but was in plain view, was situated by the side and somewhat in the rear of the place where he would properly stand in doing his work, and so situated that in drawing his hands apart to break off the hemp his left hand would be brought very near to it; that no one pointed out this gearing to him, or cautioned him in regard to it; and that, while standing in his proper place, attending to his work and breaking off the hemp in the manner described, bis hand was caught in this gearing and injured; will warrant a jury in finding that he was manifestly incapable of understanding and appreciating the danger to which he was exposed by the gearing or manifestly incapable of performing the work there with safety, and that his employer was guilty of negligence in setting him to work in that place without proper and reasonable precautions that he should be so informed and instructed in regard to his work there, and the danger to which he would be exposed, as to enable him, with proper care and attention on his part, to avoid that danger.</p> <p>No exception lies to the refusal of a ruling framed upon the assumption of the credibility of the testimony of particular witnesses to a point on which other testimony is conflicting.</p>