Volume 103 — Massachusetts Reports

<p>Petition to the county commissioners for the assessment by a jury of damages occasioned by taking land of the petitioner, in Taunton, for the construction of the respondents’ railroad Hearing by the jury on July 12, 1869, before the sheriff, the material, parts of whose certificate were substantially as follows :</p> <p>The petitioner was the owner of a tract of land in Taunton containing several acres, bounded westerly by Weir Street and easterly by Ingell Street, both public highways, and, some time before March 15,1865, the date of the location of the respondents’ railroad, opened and built a way or road, thirty-two feet wide, called Presbrey Street, running from Weir Street to Ingell Street, for the purpose of selling house lots thereon, and sold two lots near Ingell Street. This way or road was never made a public highway. The location of the respondents’ railroad cut off a corner of the petitioner’s land and the end of his way or road. The petitioner’s land had no buildings upon it.</p> <p>“ For the purpose of showing the value of his land, the petitioner offered to show what sum the respondents paid to the ‘ Willis estate,’ immediately adjoining. It appeared that said sum was paid, as a gross sum, not only for the land taken, but also for damages to the entire estate, on which was a dwelling near the railroad, and also a well, covered by the line of the location of the railroad, but thus far suffered to remain open for use, and that said estate was cut through with a high embankment. The respondents objected to the admission of the eviJence, because the cases were not similar, and because the damages so paid were paid as one gross sum, and not merely for the land ; but the sheriff admitted the same, and ruled that it was for the consideration of the jury.”</p> <p>The respondents’ railroad was built and opened in the summer of 1866; and the petitioner never made any application to the county commissioners to assess his damages, but the respondents made the application to them on November 13,1867.</p> <p>“ The respondents asked the sheriff to rule that, no application for damages sustained by reason of the obstruction of said way to the petitioner’s back land having been made within one year from the time when said way was so obstructed, the petitioner was now barred of recovering such damages, by the Gen. Sts. c. 63, § 28; but the sheriff ruled otherwise, and that the statute did not apply to this case.</p> <p>“ The respondents’ railroad had a fence along the track, but no buildings, where Presbrey Street was crossed; and the respondents asked the sheriff to rule that the petitioner could still cross to and from Weir Street over the railroad to his back land, and if so, that the cost of raising his way so as to reach Weir Street over the railroad, with the reduced value of bis back land, if any, by reason of having to cross the railroad to reach Weir Street, would be the measure of damages by reason of such obstruction ; and that the damages should be assessed upon the basis of such a right to cross the railroad; but the sheriff ruled that the petitioner, having an opportunity to reach the highway without crossing the railroad, had no right so to cross, and that the jury, in assessing the damages, should consider that the petitioner had no such right.</p> <p>“ The respondents asked the sheriff to rule that, if the petitioner had not a legal right still to cross the railroad, he had a legal right to build a new road by the side of the railroad, and in such case the sum it would cost to build the new road, and the value of the land required for the new road, and any depreciation in the value of such back land, caused by such bend in the road, would be the measure of damages by reason of such obstruction; and that in neither case could damages be assessed for depreciation in the value of the back land by reason of the proximity of the railroad through fear of frightening horses and such like causes; but if the sheriff should rule otherwise, the respondents asked that such damages might be assessed separately. The respondents also asked the sheriff to rule that depreciation in the value of the petitioner’s remaining land on Weir Street by reason of the proximity of the railroad, such as frightening horses and the like, could not be included as an element of damages in this proceeding; but if the sheriff ruled otherwise, the respondents asked that any such damages might be assessed separately. The petitioner assented to the assessment of such damages separately, but contended that he could recover the same.</p> <p>“ The sheriff ruled and instructed the jury that they should assess damages as follows: 1. For the value of the land act 1-ally taken by the location of the road. 2. What it would cost to build a new way from Weir Street, alongside of the railroad, including the value of the land required to build said way, which was thirty-two feet wide; and the depreciation in the land by reason of the bend in the road. 3. For the depreciation of the remaining land on Weir Street and Presbrey Street, by reason of the proximity of the railroad, such as for frightening horses, and the like causes. 4. Interest on said amounts from March 15, 1865, the date of the location, reckoned at six per cent.”</p> <p>The jury assessed damages separately, 1. “for the value of the land actually taken ; ” 2. “ for the cost of building a new road thirty-two feet wide over the petitioner’s remaining land, from Weir Street to Presbrey Street;” 3. “for the depreciation of the remaining land of the petitioner on Weir Street and Presbrey Street, by reason of the proximity of the railroad, such as the increased difficulty of travelling the new road with angle in it, and such as the danger of frightening horses and the like;” =and assessed interest on each of the three amounts as instructed.</p> <p>The respondents having alleged exceptions, the superior court ruled that the verdict should be wholly set aside, and to this ruling the petitioner alleged exceptions.</p>

<p>In estimating, under the Gen. Sts. c. 63, § 21, the damages occasioned to the owner of a messuage by taking part of his land for a railroad, depreciation in value of his estate arising from the proximity of the road and running of the trains, is to be considered so far, and only so far, as it is due to proximity caused by and would not have resulted but for such taking.</p> <p>The turning of surface water upon land by a railroad embankment is a proper element in the estimation, under the Gen. Sts. c. 63, § 21, of damages occasioned to the landownei by the construction of the railroad.</p>

<p>Authorizing a firm to apply for its benefit, and as part of its capital, United States bonds payable to bearer, deposited specially in the custody of a bank which has no notice of the giving of the authority, is not “ an actual cash payment as capital,” by the person giving the authority, within the meaning of the Gen. Sts. c. 55, § 2, so as to exempt him, as a special partner, from liability for the debts of the firm; although, after the making and recording of the certificate required by § 3, the bonds are applied for the benefit of the firm and realize more than the necessary amount of cash.</p>

Contract on a promissory note duly stamped. Answer, a certificate of discharge in insolvency. No replication was filed. At the trial in the superior court, before Morton, J., the plaintiff admitted the discharge, and, as evidence of a new promise, offered three letters, written to him by the defendant, two of which were dated after the beginning of the proceedings in insolvency but before the discharge, and one after the discharge.

<p>An agreement between W. W. and H. R., dated October 2, 1865, provided that W. W. should enter into and carry on, for three years from April 17, 1865, the business of man» ufacturing oils and candles, “under the name, style and firm” of the X. Company, furnish the necessary capital to a limited amount, let the company have the use of hig coal land and mining apparatus, with the right to take coal, for which he was to be paid by the company a certain sum per ton, and be allowed interest “ on the capital stock invested in said company; ” that H. R. should be employed as the general agent and manager of said business, devote himself wholly thereto, receive “ in payment for his said services ” a certain sum per year and one half of the net profits of the business, let to the company his oil works, tools and apparatus at a certain rent, and allow to the company free of charge the benefit of all trade marks and patents used by him; that annual settlements should be made, and all sums due thereon to H. R. should be paid, or, if not paid, credited to him and interest allowed thereon; that “ all the operations of the late limited partnership of H. R. since April 17,1865, are to be considered as done and performed under this agreement, so far as the business of the company is concerned, and this agreement relates back ” to said April 17. H. R., in 1867, brought an action of contract against W. W., the declaration in which set forth the agreement and alleged that the defendant excluded the plaintiff from the management and profits of the business, refused to make annual settlements and payments, and, although continuing the business on the premises and with the tools of the plaintiff, and making large profits, refused to recognize that the plaintiff had any rights under the agreement, ffeld, on demurrer, that the parties were partners, and the action was not maintainable.</p>

<p>The agreement of a member of a firm with his partner, to be responsible for the price of goods furnished by the firm to A., is a sufficient consideration for an assignment to him by A. of a debt due to A. less in amount than the price of the goods so furnished, aa against one who afterwards attaches such debt on trustee process in a suit against A.</p>

<p>An attorney has no such lien in a cause before judgment as to prevent his client from settling the action with the opposite party without his consent or knowledge.</p> <p>In an action on a Quantum meruit for board, the payment, “ in settlement of the action,” of more than the whole amount alleged m the declaration to be due, is good as an accoid and satisfaction, and the action cannot afterwards be maintained for the recovery of a balance of the interest since the date of the writ.</p>

<p>Tort for slander. The third count of the declaration alleged that the plaintiff was the owner of a certain building in Raynham, and occupied it, for the purposes of his trade, with goods, wares, merchandise and other chattels, his property, and for a store; that said building, and also said goods, wares, merchandise and other chattels therein, were insured against loss or damage by fire, and were destroyed by fire during the time they were insured ; that “ after said destruction by fire, the defendant, speaking with reference thereto, well knowing that said building, and also said .goods, wares, merchandise and other chattels therein were insured against loss or damage by fire as aforesaid, publicly, falsely and maliciously accused the plaintiff of the crime of wilfully burning said building, and the goods, wares, merchandise and other chattels therein, at the time they were so insured against loss or damage by fire, with the intent to injure the insurers thereof, by words spoken of the plaintiff, substantially as follows: ‘ Some of the folks up your way think that Henry’ (meaning the plaintiff) ‘burned the store.’ ‘I (meaning the defendant) ‘have no doubt but what he’ (meaning the plaintiff) ‘ burned it.’ ”</p> <p>The fourth count alleged that the plaintiff petitioned for the benefit of the bankrupt act, and was duly adjudged a bankrupt; that proceedings upon the plaintiff’s petition were now pending; that the defendant was a creditor of the plaintiff, and had duly proved his claim in bankruptcy; that “ the defendant, well knowing that said proceedings in bankruptcy had been commenced as aforesaid, publicly, falsely and maliciously accused the plaintiff of a crime and misdemeanor; in this, that the plaintiff, with intent to defraud his creditors, within three months before the commencement of the proceedings in bankruptcy on said petition of the plaintiff, did dispose of, otherwise than by bond fide transactions in the ordinary way of trade, his goods or chattels obtained on credit and remaining unpaid for; and in this, that the plaintiff did attempt to account for the property, or some part thereof, by fictitious losses or expenses; and in this, that the plaintiff did acts which are offences under, and are in violation of” the bankrupt act; “ by words spoken of the plaintiff, during the time of the pendency of said proceedings in bankruptcy, substantially as follows: ‘ He’ (meaning the plaintiff) ‘is the biggest rascal off of the gallows. Some of the folks up your way think that Henry ’ (meaning the plaintiff) ‘burned the store. I have no doubt but what he’ (meaning the plaintiff) ‘burned the store;’ the defendant thereby referring to the destruction by fire referred to in the preceding count, by which fire certain memoranda, books, accounts and other papers relating to the plaintiff’s trade or business were destroyed ; and that the defendant did publicly, falsely and maliciously accuse the plaintiff, in words spoken of the plaintiff as above set forth, of acts, matters and things” whereby the plaintiff’s discharge in bankruptcy would be withheld, or, if granted, would be invalidated.</p> <p>The defendant demurred to these two counts as setting forth no good cause of action; and Wells, J., reserved the case on the demurrer for the consideration of the full court.</p>

<p>By virtue of the Gen. Sts. c. 131, § 37, and notwithstanding § 34, the admission in evidence of a deposition taken in another state, under a commission, by a magistrate whose certificate states that the deponent swore to the truth of the deposition, but does not state that he was sworn before he was examined, is within the discretion of the court.</p>

Contract. The declaration alleged that “ the defendants made a promissory note, a copy whereof is hereto annexed, payable to one Betsey S. Besse, or order, and the same was duly indorsed and transferred to the plaintiff.” At the trial in the superior court, the plaintiff offered in evidence a note precisely corresponding with the copy annexed to the declaration, save that it bore an indorsement by Besse, and on its face a revenue stamp, and a memorandum of protest hnd…

Petition to the superior court at March term 1869, that a complaint under the Gen. Sts. c. 149, for flowing land, might be brought forward from December term 1867, and judgment entered as of said March term.

<p>Contract on a bond given, out of court, to the plaintiff, promising to support her bastard child, and containing a recital that the defendant was the father of the child. Answer, that the bond was procured by duress, fraud and covin, and was without consideration, and that the recital was untrue. Trial in the superior court at June term 1869, before Wilkinson, J., who, after a verdict for the plaintiff, allowed the following bill of exceptions:</p> <p>“ In putting in the plaintiff’s case, she was called to the stand by her counsel and interrogated as to the paternity of the child; and on cross-examination she stated that she had never had intercourse with any man other than the defendant, and had never written any letters so stating, and she gave other testimony tending to show that the child was the child of no other person than the defendant. Subsequently the defendant testified that the plaintiff had frequently, at or about the time of the alleged intercourse, February 1865, thrown him letters of a vulgar character; and that on reading them he had at once destroyed them, months before any charge of paternity was made against him. His counsel then asked him to state the contents of these letters, for the purpose of contradicting the plaintiff’s evidence, and of proving her intercourse with other men. But the judge ruled that the defendant could not now testify as to their contents.</p> <p>“ Nelson Bowen, a witness for the defendant, testified that about four or five years ago, and between August and February, the plaintiff tossed to him a letter of an indecent character and bearing her name at the foot of it, and that on reading it he destroyed it. ‘ Don’t know as she wrote it,’ he said. The defendant then asked him to state the contents of that letter, for the purpose of contradicting the plaintiff’s evidence aforesaid, and of proving her intercourse with other men. But the judge Billed that the witness could not testify as to the contents.</p> <p>“ The plaintiff called the physician who attended her at the time of travail, and asked him to state what she then said as to the paternity of the child. The defendant objected to statements of the plaintiff not made on the stand, but the judge permitted the physician to state that she then charged the defendant with being the father.”</p>

<p>Whether a child was a “full time child” may be testified to by any physician of ordinary experience who attended at its birth.</p> <p>m a bastardy process, declarations of J. S. that he himself was the father of the child, and acts of J. S. relative to procuring an abortion on the complainant, if not made or done in the presence or with the knowledge of the complainant, are inadmissible to prove a conspiracy between the complainant and J. S., after said declarations, to charge the defendant with being the child’s father.</p> <p>In a bastardy process, the fact that the defendant wras the father of the child may be established by a fair preponderance of evidence.</p> <p>The defendant in a bastardy process contended at the trial that J. S. and not himself was the father of the child; proved that J. S- sent to the complainant a package made up like “ doctor’s powders; ” and then offered evidence to show that, three or four days before sending this package. J. S. received a package of like size, shape and appearance, which contained drugs to produce an abortion. Held, that the evidence was admissible, and the question of the identity of the packages was for the jury.</p> <p>In a bastardy process, testimony as to the dissimilarity in personal appearance between the child and J. S. is inadmissible to rebut evidence introduced by the defendant to show that J. S. and not himself was the father.</p> <p>After a verdict of guilty in a bastardy process, the court may, under the Gen. Sts. c. 72, § 7, pass the order of affiliation in the absence of the defendant.</p> <p>An order of court in a bastardy process, after the defendant has been adjudged the father of the child; that he “stand committed ” until he gives a bond conditioned to pay to the mother a certain gross sum, to pay a further amount quarterly “ until the further order of the court,” and to save harmless the parents of the mother and the town of her settlement against all charges for the maintenance of the child; and that the complainant shall recover the costs of suit; is valid under the Gen. Sts. c. 72, § 7.</p>

<p>In an action for the rent of a tenement alleged by the defendant to have been knowingly let for the illegal sale of intoxicating liquors, the plaintiff is entitled to have the jury instructed that the presumption of law is that sales of liquor made on the premises were legal, although they have been previously instructed that the burden of proof is on the defendant to show that the sales were unlawful.</p>

<p>Petition under the Gen. Sts. c. 100, and the St. of 1864 c. 168, praying for the sale of certain real estate in Attleborough, being all the real estate devised by William Hidden in his will, the material provisions of which were as follows: 111 give and devise all my estate, real and personal, whereof I may die seised or possessed, to James C. Hidden, to have and to hold the same to himself, his heirs and assigns forever, upon the use and trusts following, namely : Out of the rents and profits of said estate, my trustee shall annually pay the sum of two hundred and fifty dollars to my wife Caroline. Whatever balance may remain in the hands of my trustee after the payment of the aforesaid annuity to my wife, shall from time to time be invested by him, until said investments shall amount to the sum of one thousand dollars, when said trustee shall convey the same to my grandson, George H. Day, to be received by him upon his attaining the age of twenty-one years. If my grandson, George H, Day, should die before attaining the age of twenty-one years, the said investment of one thousand dollars shall be conveyed by my said trustee tó my son, James E. Hidden, as also all the remaining portion of my estate, both real and personal, to his use and behoof during life, and after him, in fee simple to his heirs forever: the said James E. Hidden, or his heirs, securing to my wife Caroline the payment of two hundred and fifty dollars per annum during her life.”</p> <p>Notice of the petition was served on James E. Hidden, the testator’s son, but it did not appear that notice was served on James C. Hidden, the trustee. A guardian ad litem, appointed for the children of James E. Hidden and those persons not in being who might be interested in the estate, assented to the sale prayed for.</p> <p>At the hearing before Wells, J., it was agreed that since the death of the testator the buildings on the estate had been destroyed by fire; that the petitioner had not, since the fire, received any part of her annuity; that George H. Day had died under age; and that James E. Hidden bad two children. The case was reserved by the presiding judge for the determination of the full court.</p>

Replevin of a cylinder and bed piece, parts of a steam engine, attached by the defendant, a deputy sheriff, while on premises of the plaintiffs at Somerset, on a writ against the Hope Iron Works of Providence, in the state of Rhode Island.

Tort. The declaration alleged that the defendant sold to the plaintiff one half of a schooner; that the plaintiff was induced to buy the schooner by representations of the defendant that she was sound, and not rotten, and all right so far as he knew; and that the defendant, at the time of the representations, knew that the schooner was badly rotten and unsound.

Contract to recover the plaintiff’s lay in a whaling voyage.

Indictment for keeping a tenement used for the illegal keeping and sale of intoxicating liquors from January 1 to June 17, 1869. At the trial in the superior court, Wilkinson, J., allowed the Commonwealth, against the defendant’s objection, to put in evidence of sales by the defendant after May 1,1869. The defendant was found guilty and alleged exceptions.

Complaint “ to the justice of the municipal court at Taunton, in the county of Bristol: , of Taunton, in the county of Bristol, in behalf of the Commonwealth of Massachusetts, complains” that Michael Eagan, Mary Eagan and John Eagan made an assault and battery on Patrick Saxton. The complaint was signed “ Willis Potter,” and the clerk indorsed thereon that it was received and sworn to on August 3, 1869.

<p>A covenant, made by the patentee of a process of manufacture in a business not local jx its character, for the purpose of selling the patent to better advantage, and as a part of the transaction of sale, and for one and the same consideration received by him for the patent, to use his best efforts to invent improvements in the process and to transfer then; to the buyer, to do no act which may injure the buyer or the business, and “at no time to aid, assist or encourage in any manner any competition against the same," is not necessarily void as in restraint of trade.</p>

<p>Oral testimony will not legitimately establish a proposition of fact which cannot, by any mode of interpretation, be deduced from the words themselves when written; whatever may have been the appearance, look, manner, mode of answering, emphasis, accents and gesticulations of the witnesses.</p> <p>At an interview with an applicant for a policy of insurance on his own life for his wife’s beneht, an agent of the insurance company said that he had brought the policy, and the applicant replied that he was glad of it and that he had been expecting it for some time, took it from the agent, looked at it, passed it to his wife, saying “ Here, wife, here is youi policy,” and she then took it and looked it over. The applicant then said to the agent, that he was not well enough to attend to the business that day, but had made arrangements with J. S. to “ do it ” for him, or to “ take the policy; ” and to his wife, that there was money due to him in the shop where he worked, and J. S. would “pay it for him ” or “ make arrangements to get it for him.” After some more words between the appli cant and the agent, the latter arose to leave, saying that he should go to J. S.; and the wife, saying that he might want the policy if he was going to J. S., passed the policy to him, and he took it, withdrew with it, and, without applying to J. S. in relation to it, returned it to the general agent of the insurers, through whom he had received it from them, and on whom the next day the applicant made a demand for it, with a tender of the premium, which was refused. Held, that evidence of these facts would not warrant a finding of a delivery of the policy, either actual or constructive, and a waiver or postponement of payment of the premium; or of an open and continuing proposal to contract with the applicant by means of that policy, accepted by his tender and demand.</p> <p>On an issue of the binding force on the defendants, who were a foreign mutual life insurance company, of transactions had by agents of the company in this Commonwealth with the plaintiff and her husband, in reference to a policy of insurance on his life for her benefit, for which he had applied to the company, instructions and rules of the company, not referred to in the application or the policy, nor notified to him or to her, are inadmissible to prove limitations of the agents’ authority.</p> <p>Power to make contracts or declarations to bind generally a foreign mutual life insurance company is not within the apparent scope of the authority of a sub-agent employed by the general agent of the company in this Commonwealth to solicit and receive applications for insurance and forward them to the company, and to deliver policies issued by the company and collect premiums thereon; nor is to be inferred by virtue of the St. of 1861, c. 170, or the St. of 1864, c. 114.</p>

<p>A town has no authority independently of statute law; nor, under the eighteenth article of amendment of the Constitution of the Commonwealth, can take authority by statute; to raise by taxation and appropriate money to support a school, as a public school, which is founded by a charitable bequest that vests the order and superintendence of it in trustees, who, though a majority of them are to be chosen by the inhabitants of the town, yet are limited to be members of certain religious societies.</p> <p>The St. of 1869, c. 396, is unconstitutional and invalid, so far as it purports to authorize the town of Andover to raise by taxation and appropriate money to aid the trustees of the Punchard Free School to build a school-house “ to be used and occupied in place of a high school for said town,” and to aid in defraying the annual expenses of said school.</p> <p>This court has not jurisdiction to restrain or regulate the proceedings of towns in granting and voting, under the Gen. Sts. e. 18, § 10, such sums as they judge necessary for burying grounds.</p>

.Contract on an account annexed for the tuition of Emma S.iGale and Channing Gale in the plaintiffs’ high school during 1867 and 1868; submitted to the judgment of the superior court, and, on appeal, of this court, upon a statement of agreed facts, of which the following is the material part. “ The defendant is, and always has been, a resident of Newton in New Hampshire.

<p>The record of an adjudication of the county commissioners, on the application of the selectmen of a town, under the St. of 1866, c. 112, that it is necessary to take adjoining land to enlarge a burying ground, need not set forth the facts which the statute requires in order to entitle the selectmen to make the application; but it is sufficient if such facts are alleged in the application itself.</p> <p>The incapacity of a landowner to sell his land is a sufficient refusal to sell it, within the meaning of the provision of the St. of 1866, c. 112, that, in order to entitle the selectmen of the town to apply to the county commissioners for an adjudication of the necessity of taking the land to enlarge a burying ground, he must refuse to sell it, or demand for it a price which they deem unreasonable.</p> <p>The right of a town to take adjoining land to enlarge a burying ground, by proceedings under the St. of 1866, c. 112, is not affected by the manner in which the title to the land is limited among its owners, whether in possession or expectancy.</p> <p>Whether the actual occupation, by private proprietors, for the uses of burial, of land adjoining and needed for the enlargement of a burying ground existing in and belonging to the town, can, in any case, be held to exclude the right of the town to take it for that purpose by proceedings under the St. of 1866, c. 112, quaere.</p> <p>On application of the selectmen of a town, under the St. of 1866, c. 112, to the county commissioners, for an adjudication of the necessity of enlarging a burying ground existing and belonging to the town, by taking two adjoining parcels of land, the first of which, was conveyed, more than a hundred years before, to a parish in the town, “ for the use of a burying place,” and ever since used by the inhabitants of the parish for purposes of burial, and the second was and for thirty years had been held in trust and on condition to be by the original grantees and their associates “ laid out and allotted or assigned for public or private use as they shall find most convenient for improving, preserving and using the same for an addition to ” the first parcel, “ and to be used by them, their asso* ciates and assigns, for that purpose only forever,” the commissioners laid out and declared both parcels 44 to be a part of the public burying ground of the town, and to be forever kept as such,” 44 reserving to the proprietors of lots, and also to the families of the parish, all of the rights that they now possess.” Held) that this judgment of tin commissioners was valid.</p> <p>To an adjudication in good faith of county commissioners, under the St. of 1866, c. 112, of the necessity of enlarging a burying ground by talcing a parcel of adjoining land, it is no objection that there is no purpose on the part of the town to make burials in the parcel, but that it is to be left open as part of a passageway giving access to the burying ground from a public street.</p>

Contract to recover the expenses of supporting Clara Williams, a pauper, from April 34 to July 25, 1868. Writ dated July 27, 1868. The defendants, in their answer, denied that the pauper ever had a settlement in their town, or that they were otherwise chargeable with her support.

<p>The legislature, in exercising the right of eminent domain, may (as by the St. of 1868, c. 309, § 8) require county commissioners to take and lay out a bridge as a highway, and to determine and apportion between the county and the benefited towns and cities the damages to be paid therefor.</p> <p>If one of the board of county commissioners, who were required by the St. of 1868, c. 309, § 8, to lay out certain bridges as highways, resided in a town or city in which one of the bridges was situated in whole or in part, such a residence disqualified him to act in the case of that bridge, unless the board could not otherwise be organized; and the other members might substitute for him a special commissioner, under the Gen. Sts. c. 17, § 12.</p> <p>Under the St. of 1868, c. 309, § 8, which required county commissioners to lay out certain bridges as highways “ in the manner now provided by law for the laying out of highways, and according to the provisions of” the St. of 1867, c. 296, “so far as the same are applicable,” and to determine and decree what proportion of the damages sustained by the bridge proprietors should be paid respectively by the county and the several cities and towns benefited, all the damages are to be paid, in the first instance, from the county treasury, and an adjudication by the commissioners, which leaves the bridge proprietors to enforce against the cities or towns their liability for the proportion on them assessed, is erroneous; but the whole proceedings of the commissioners are not necessarily avoided by such error, but may be amended by the judgment of this court on certiorari, under the Gen. Sts. c. 145, § 9.</p> <p>in awarding, after due notice, what proportion of the damages sustained by the proprietors of a bridge laid out as a highway under the St. of 3,868, c. 309, § 8, should be paid respectively by the county and a city thereby benefited, the county commissioners specified the sums payable by each, but omitted to provide that both sums should be paid in the first instance from the county treasury. The proprietors demanded such total payment iron? the county, and, upon its refusal to pay more than the sum apportioned to it, sued out writ of certiorari against the commissioners. Held, that, in correcting the error, under the Gen. Sts. c. 145, § 9, the court might charge the county with payment to the petitioners of interest on the sum apportioned to the city from the time of said demand, and charge the city with reimbursement of such interest to the county.</p>

<p>In the laying out of a bridge as a highway, by county commissioners, under the St. of 1868, c. 309, § 8, and according to the provisions of the St. of 1867, c. 296, § 4, that they should “ determine and fix the relative proportions of expense for maintaining ” the bridge, “ to be borne by said county, and any of the cities or towns lying near to, or contiguous to” the bridge, “ as in their judgment may be just and equitable, which said proportion of expense so determined ” “ shall become obligatory upon said county and upon said cities and towns as aforesaid, to pay in the manner and at the times prescribed by said county commissioners,” the commissioners were authorized, but not required, to impose part of the expense for maintaining the bridge upon the county, or upon the cities and towns lying near but not contiguous to the bridge; and might lawfully impose the whole maintenance of the bridgs on the several towns or cities within which it was situated, and determine and fix the relative proportions in which they should respectively bear the expense thereof, by assigning to each a specific part of the bridge to be maintained by it exclusively.</p>

Petition under the Gen. Sts. c. 43, § 73, to the county commissioners of Essex, by the owners of land taken for a town way by the selectmen of Beverly, praying for a reassessment of their damages and an alteration of the way so as “ to carry it. a considerable distance to the north of its present location,”, and for a jury to determine the matter of their complaint.

<p>An information in the nature of a quo warranta will not lie against a municipal corporation to enforce performance of a duty imposed on it by law.</p> <p>The attorney general cannot maintain a bill in equity to prevent or redress a private wrong, in disregard of the provision of the St. of 1864, c. 268, § 13, that the city council of Salem should establish such rates for the use of water introduced into the city under that statute “ as to provide annually, if practicable, from the net income and receipts therefor, for the payment of the interest and not less than one per cent, of the principal of" the debt contracted by the city in building the waterworks, the city council, with intent to distribute the water free, and tax the property and polls of the inhabitants to maintain the waterworks and pay said interest and percentage, established water rates merely nominal." Held, that this was not a grievance remediable upon an information in the nature of a quo warranta, or upon a bill in equity filed in the name of the attorney general.</p>

<p>Petition by ten and more taxable inhabitants of the city of Salem, alleging that the city council, in disregard of § 13 of the St. of 1864, c. 268, had by an ordinance established merely nominal rates for the use of the water introduced into the city from Wenham Pond under that statute, and that a board of water commissioners, established by another ordinance of the city council, had made certain contracts under the first named ordinance to supply families and manufacturing corporations with the water at merely nominal prices; that it was the intention of the city by these acts “to distribute and supply water to the inhabitants of said city substantially free, or at such small and colorable rate that only a trifling amount will be raised from the rents and prices of water, and that all the balance of the interest on the water loan, and the expenses of operating the waterworks, are to be raised by taxation upon the property and polls of the citizens and taxpayers, whether they use said water oi not, or whatever quantity of water they may use that the ordinance first named and the proceedings of the water commissioners “ are a virtual vote and attempt to raise by taxation, or pledge of the credit of the city, or to incur liability and pay from its treasury, money which it has no legal right or power to raise or pay in such a manner;” that “the whole proceeding under and including said first named ordinance is a violation and abuse of the legal rights and powers of said city, and of said city council, and of said water commissioners; ” and that “ by these proceedings the petitioners are injured by having unjust, unequal and illegal burdens cast upon them and their property, and have no adequate remedy at law.” The prayer was for an injunction on the city and the water commissioners against supplying the water at such nominal rates, and that the city might be required and decreed to charge and receive such rates for the water as were prescribed in said § 13 of the St. of 1864, c. 268. The defendants demurred for alleged want of jurisdiction; and the case was thereupon reserved by Gray, J., for the determination of the full court.</p>

Petition filed December &, 1866, under the Gen. Sts. c. 134, §§ 49, 50,* §to quiet the title to a parcel of land on Forrester Street in Salem, of which the petitioners alleged that they were in possession and were seised in fee simple. The answer denied their seisin and possession; and alleged that on the contrary the respondents were seised and possessed of the land.

<p>If a messuage recovered on a writ of entry was, at and after the time when the demand-ant's title accrued, subject to a right of homestead in the demandant’s grantor and his family, and occupied in part by such grantor’s wife under a claim of the homestead right without the same being set off, the rentable value of that part during her said occupation is not to be included in estimating, under the Gen. Sts. c. 134, § 15, u the clear annual value of the premises” for which the tenant in the action is liable as rents and profits.</p> <p>Lead demanded on a writ of entry was subject to a lease and a mortgage when the demandant’s title accrued. The demandant forbade the lessee to pay rent to the tenant in the action; and the lessee refused to do so. The mortgagee entered for the purpose of foreclosure and advertised the land for sale under a power in h’s deed. The demandant and the lessee thereupon agreed with him that if he would not proceed with the sale the rents should be paid to him; and he withdrew the advertisement. The lessee remained in occupation, but paid no rent to any one; and the demandant, af.er recovering judg ment, sold the land to him, subject to the mortgage, for a sum which he paid “in full foi ail rent or other claims upon him for the occupation” of the land. Held, that the demandant was estopped to recover damages for the rents and profits of the /and from the tenant in the action.</p>

Writ of entry under the Gen. Sts. c. 103, § 48,* to recover two undivided third parts of a parcel of land in Lynn.

<p>The service of a notice under the Gen. Sts. c. 90, § 31, to determine an estate at will in a shop occupied by the tenant with a partner, is sufficient,* if on the day of its date the notice is delivered at the shop to and read by the partner, whom the tenant has left in charge of his business while he and his wife (constituting his whole family) are <?«t of the Commonwealth.</p>

<p>Complaint under the mill act, Gen. Sts. c. 149, for flowing the complainant’s meadows by the respondent’s dam from January 1,1867, to July 18,1867, the date of the complaint.</p> <p>Trial, and verdict for the respondent, in the superior court, before Reed, J., who allowed a bill of exceptions, the substance of which appears in the opinion except so far as relates to the form of the verdict, in regard to which the facts were stated in the bill substantially as follows: The case was committed to the jury in the afternoon, and their foreman sent to the judge the next morning a writing which stated that “the jury respectfully ask, in view of the fact that there seems to be no other way of arriving at a verdict, if they may not, in finding a verdict for the respondent, append a clause in relation to fixing the right to flow at a particular point, upon which they may be able to decide in case such permission be granted;” to which request, the jury being brought into court, the judge replied, against the respondent’s objection, that he knew-“no rule of law which will prevent the jury from appending to their verdict for the respondent a finding as to the right to flow to a particular point,” but added “ that any such finding would not bar or prevent future actions between the same parties as to the same right, and would probably be of no effect in case such action should be brought;” whereupon the jury again retired, and after an absence of six hours returned into court a general verdict for the respondent, and “a supplemental paper” containing a special finding that the respondent had sstablished his right to maintain his dam, without compensation, to at least a specified height, from April 20 to October 20 in each year.</p>

<p>The recovery of judgment in scire facias, against a corporation charged in the original suit as trustee on a debt owing by it and for which its officers are personally liable by reason of their failure to make the certificates required by law, is a sufficient recovery of judgment against it, within the St. of 1862, c. 218, § 3, to render the officers liable on a bill in equity filed under § 4 by the original creditor and the plaintiffs in the scire facias, to enforce such personal liability, after demand made on execution as provided in § 3, neglect of the corporation for thirty days to comply therewith, and the return of the execution unsatisfied.</p>

<p>A written agreement of children, among themselves, in the lifetime of their father, never known to or approved by him, that sums owing by some of them to him shall be treated as advancements in the settlement of his estate when he shall die, is not an acknowledgment of the debts as advancements within the Gen. Sts. c. 91, § 8.</p>

<p>A. died intestate, leaving his widow administratrix of his estate, and as his heirs four children and the minor children of a deceased child B. The widow, as widow and as administratrix, the four children, and the guardian of B.’s children, agreed in writing to refer to an arbitrator “to determine how said estate shall be settled” and “to divide the real estate belonging to said parties, including the setting off of dower,” with authority “ to divide so much of said estate as shall remain after setting off dower” into equal portions and allow the parties to bid for a choice, and to charge debts due from the estate “ upon the several heirs respectively; ” and agreed further to execute the award by such conveyances as the arbitrator should order, and that the decrees necessary to carry it into effect might be made in the probate court. .The written award first set off the widow’s dower, and settled on her an annuity in full of her claims against the estate. As to the remainder of said estate,” it set off certain lands to B.’s children, “ as and for one fifth part of the said real estate which would be remaining after payment of debts and charges,” and “ as and for their share of the real estate of the said A.,” free of incumbrances, and with no charge on account of debts or charges against the estate; “ and as to the remainder of said real estate, not set off as dower nor included in the part set off to B.’s children,” it divided that into four shares, (not including any part of the dower lands, nor naming the reversion thereof,) provided for bids by A.’s four children for the choice of them, and the applica'ion of the money to be received from the bids, and then charged on these four shares equally the annuity and the balance of the liabilities of the estate. By an indenture, executed in pursuance of this award, by and between the widow, tho four children, and the guardian of B.’s children u as he is guardian” of them, said parties, after reciting that the widow and heirs of A. had agreed to make partition among themselves “ first assigning dower lands to said widow,” released the same to her to hold for her life, u the reversion to be in the heirs at law of said A., their heirs, executors, administrators and assigns, who are parties hereto; ” then described the five shares assigned to B.’s children and A.’s four children respectively, and released them severally to said assignees; and covenanted and agreed that the partition hereinbefore set forth shall he deemed to be a full and complete division and partition of the lands herein described, by and among the parties hereto, except the reversionary interest of the heirs at law of the said A., who are parties hereto, in the dower lands of said widow, as is hereinbefore provided.” Held, that the reversion of the dower lands on the death of the widow was not included in this partition; and that paroi evidence was inadmissible to show that the arbitrator intended to include it in the award and did in fact include it in the estimate on which he set off the share to B.’s children.</p>

Appeal by the administrator of the estate of Thomas P. Munday, late of Topsfield, deceased intestate, from a decree of the probate court disallowing his account; heard by Golt, J., who made a report thereof substantially as follows: It appeared that there were no creditors, and no persons interested in the account except the widow and the two children hereafter mentioned. “ The principal controversy arose over an item of $1766.54, for losses in carrying on the butchering…

Appeals by Bassett as one of the twenty-eight residuary legatees under Nancy' Horton’s will (see 100 Mass. 348) from decrees of the probate court dismissing petitions filed by the appellant in May 1868, praying that accounts of Granger, as administrator de bonis non, with the will annexed, of the estate of James Horton, and as executor of the will of William Horton, rendered August 2, 1864, and settled and allowed in said court, might be reopened for revision and correction,…

<p>Tort against a deputy of the sheriff of Essex, for the conversion of a soda fountain, some ice-cream freezers and tin cans and some sugar.</p> <p>At the trial in the superior court, before Lord, J., the plaintiff’s evidence tended to show.that the plaintiff was a confectioner, and the articles named in his declaration were tools and implements, or materials and stock, necessary for carrying on his trade or business, and were exempt from liability to attachment, under the Gen. Sts. c. 123, § 32, and c. 133, § 32, cl. 5, 6; that part of his implements and stock, but not these articles, were mortgaged to William W. Dow; that, on mesne process in an action by William W. Dow against the plaintiff, all the property in the plaintiff’s shop, including these articles, was attached by the defendant and put into the custody of a keeper; and that thereupon, on August 9,1867, the plaintiff and William W. Dow agreed in writing “that all the stock, tools, and all other articles taken upon a mortgage” from the plaintiff to William W Dow, “ and also all of the stock not included in said mortgage, now attached upon mesne process upon a claim in favor of William W. Dow, may be sold at public auction on August 16, 1867.”</p> <p>The plaintiff’s evidence tended further to show that, “ four days after the first attachment, the defendant put on another attachment in favor of the firm of Southmayd & Co., and both of said attachments were upon valid* claims •, ” that “ the sale agreed upon was postponed after the second attachment, but under what circumstances did not appear, except that the plaintiff testified that the second attachment prevented the sale; ” that in December 1867, on a petition filed in October 1867, the plaintiff was adjudged a bankrupt, and John G. Case was appointed assignee of his estate in bankruptcy; that “ the stock of goods in the shop was afterwards advertised and sold at auction, the mortgaged goods in the forenoon, and the unmortgaged goods, including the articles in question, in the afternoon of the same day;” and that “the plaintiff was informed by the mortgagee that the sale in the forenoon was by him, and the sale in the afternoon, the plaintiff thought, was by direction of the assignee.”</p> <p>“ The judge, without calling upon the defendant to offer any evidence, ruled that ‘if, after the attachment by the defendant of the stock, &e., on the writ in favor of William W. Dow, the plaintiff entered into the agreement dated August 9, 1867, without any objection that the attachment was of property exempt from attachment, and the shop of the plaintiff was kept closed, under the control of the defendant, until the plaintiff was adjudged a bankrupt and an assignee was duly appointed, and after such appointment the assignee took possession of all the attached property and dealt with it as such assignee, the defendant, if after the original attachment be did no act in relation to the property, and did not personally take possession of it except as above, is not liable in this action, even although the attachment included property exempt from attachment, unless at some time before the assignee took possession of the property the plaintiff notified the defendant that he claimed that the attacl ment covered property exempt from attachment.’ Thereupon a verdict was rendered for the defendant, the plaintiff not claiming that under the ruling he was entitled to a verdict; ” and the plaintiff alleged exceptions.</p>

Tort against a deputy of the sheriff of Essex, for the conversion of a horse and its harness, a carryall, a sleigh, and other chattels. Held: nor an assignee of his estate appointed, until March 10 1868.

Contract on an account annexed for the price of fifteen pigs sold by weight to the defendants ; who answered, that the plaintiff specially warranted the pigs to be healthy, but that they were diseased and worthless, and also that the sale was made on the Lord’s day.

<p>Complaint made November 23, 1868, under the Gen. Sts. c. 72, that the complainant was pregnant with a child begotten by the defendant at Lawrence on or about April 15, 1868, which, if born alive, might be a bastard.</p> <p>In the police court of Lawrence, to which the complaint was returned, the defendant, after due hearing, was required to give bond to appear and answer to it at the next term of the superior court.</p> <p>In the.superior court, the complainant, on February 19,1869, further complained that, on December 30,1868, she was delivered of a male child, which was still living and was born a bastard ; that in the time of her travail she accused the defendant of being its father, and had ever since been constant in the accusation; and now charged that he was so, and that he begot the child at the place and on or about the day alleged in the previous complaint; and prayed that he might be adjudged its father and be charged with its maintenance with her assistance. The defendant answered, denying each and every allegation of the complainant; and alleging that her complaints were made in pursuance of a conspiracy to defraud him.</p> <p>At the trial, before Scudder, J., “ the complainant was the first witness called, and testified that she was begotten with child by the defendant on or about April 10,1868, and that acts of criminal intercourse between her and him commenced in August 1867. A letter was produced, directed to her,' and dated at Philadelphia, August 26, 1867, which she testified that she re"ceived by mail soon after its date. This letter was signed by the defendant and admitted to have been written by him. She offered the letter as evidence tending to show the character of the intimacy between herself and the defendant. The judge allowed the letter to be read to the jury against the objection of the defendant that it was immaterial.” The jury returned a verdict of guilty, and the defendant alleged exceptions. The letter was not made a part of the bill of exceptions, nor was its substance stated therein further than appears above.</p>

Tort for injuries alleged to have been caused to the plaintiff by the defendant through his servant Charles H. Flanders in legligently riding a horse against the plaintiff on a highway in Haverhill. The answer, among other grounds of defence, denied that Charles H. Flanders was the defendant’s servant or agent at the time of the accident.

Tort for assault and battery. The declaration was as follows: “And the plaintiff says, the defendant made an assault upon him, and threw him with great violence upon and against a certain counter, whereby he received serious injury.” The plaintiff also filed the following specifications: “ And now comes the said plaintiff, and, being called upon for a more particular specification, says, that the defendant violently and forcibly assaulted him in a certain shop in Ipswich,…

Indictment for prizefighting, charging that Edward O’Baldwin and Joseph Wormald, “ by and in pursuance of a previous appointment and arrangement made by and between them to meet and engage in a fight with each other, did meet and engage in a fight with each other, against the peace,” &c. At the trial of O’Baldwin, in the superior court, before Brigham, C. J., the jury returned a verdict of guilty; and the judge allowed a bill of exceptions of which the following is the…

Indictment on the St. of 1868, c. 141, with three counts, the first charging the defendant with unlawfully exposing intoxicating liquors for sale, and the second and third respectively with making different unlawful sales of intoxicating liquors. Trial in the superior court, before Brigham, C. J., who allowed a bill of exceptions of which the following is the material part: “ The jury returned a general verdict of guilty.

Tort for entering the plaintiff’s close in Ipswich, digging clams thereon and carrying them away; submitted to the judgment of the court on facts agreed, of which the following is the material part: The close on which the trespass was alleged to have been committed consisted of flats, adjoining the upland along Ipswich River and the seashore, granted by the colony to the commoners o^ Ipswich; 1 Mass.

<p>Tort for conversion of the schooner Lena. At the trial in the superior court, before Brigham, C. J., it appeared that the schooner was built by Josiah French, and mortgaged by him to the plaintiffs; that afterwards French gave them a bill of sale of the vessel, absolute on its face, but intended as collateral security for advances by them; that this bill of sale was duly registered at the custom house; and that the vessel was then sent to sea by French, under the charge of a master who barra trously sold her to John Kennedy, who, in his turn, two days afterwards, sold her to the defendant.</p> <p>The defendant offered evidence tending to show that the plaintiffs had insured the schooner; that, upon receiving information of her sale, they abandoned her, with the assent of French, to the underwriters ; and that they afterwards recovered from the underwriters, as for a total loss (see 100 Mass. 509); but the judge excluded this evidence. The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>Petition to enforce a lien for labor and materials expended on the steamer Starlight. Trial at April term 1868 of the superior court, before Dewey, J., who reported the case for the determination of this court, substantially as follows :</p> <p>The Starlight was built in Maine in 1866, for Charles Spear, then and ever since a resident of Boston ; and on July 1 of That year was launched and given into his possession ; but, to secure liabilities incurred on behalf of Spear by Benjamin T. Manson and Edward K. Harding, both residents of Maine, the builder’s certificate was made to them, and the steamer was registered in their names as owners at the port of Bath in Maine, with intent to be held by them as collateral security only. Spear ran the steamer on a river in Maine until September or October 1866, when he brought her, without any knowledge or consent on the part of Manson or Harding except such as may be implied from the relations of the parties to the steamer, to Boston; and while there, in February, March and April 1867, without the knowledge of either Manson or Harding, ordered the labor and materials, for which a lien was claimed by the petitioners, to be expended on her, and had the exclusive possession and the control and direction of the steamer, as general owner, from the time she was launched till May 27, 1867, when Manson and Harding took possession of her as she was lying at the wharf in Boston, and kept possession of her there until she was attached on this petition in February 1868,</p> <p>The petition was filed in the clerk’s office of the superior court on February 17, 1868, and, on the same day, the clerk made out a writ directed to the sheriffs and their deputies, and commanding them to attach the steamer, with her tackle, apparel, and furniture, and to summon Spear, Manson and Harding to appear before the superior court on the third Monday of the ensuing March to answer unto the petition. On this writ the steamer was attached, and subsequently Spear and Manson were summoned, “ by delivering to them an attested copy of this petition and order of court,” to appear and answer. At the time of filing the petition the superior court was sitting for the January term, and it remained in session for that term till afte? the return day of the writ. On July 2, 1868, Manson and Harding gave a bond to discharge the attachment.</p> <p>When the case came on for trial in the superior court at October term 1868, the court ruled that the process to summon the respondents was defective, but granted leave to take out a new order of notice, ordering the petitioners to give notice to Spear, Manson and Harding to appear at January term of the superior court “ by serving them with a true and attested copy of said petition with this order thereon ” fourteen days at least before the first day of said term, “ and said order is without prejudice to the former order and attachment.” Spear, Manson and Harding were all out of the Commonwealth at the time, and the orders were served on them in other states by officers of those states authorized to serve process therein.</p> <p>“ The work done on the steamer ” by the petitioners “ consisted in enlarging or extending the promenade deck, taking off and replacing the hurricane deck, and sheathing inside, and other items, the whole or a considerable part of which was done in order to adapt the steamer to new uses and service.”</p> <p>The respondents Manson and Harding contended “ that the court had no jurisdiction, because, this being a proceeding in rem, the attachment was illegal, the same being on a writ or process illegally issued, and made returnable at a time not authorized by law; and also because the subject matter of the petition was within the maritime jurisdiction of the courts of the United States, and the jurisdiction of said courts was exclusive on the facts; that this objection was not cured by the bond given to dissolve the attachment; that the matters sued for were not such as the statute provided a lien for, the same being alterations, and not repairs, construction, &c., as provided in the statute ; that the original processes were illegally issued and served, and were made returnable at a time unauthorized by law; and, as no other attachment had been made than the one originally made, that the vessel was not in the custody of he law, being held neither by the attachment nor the bond, and there was nothing upon which to found any order or decree of court; that the service made of the order of notice, issued at October term 1868, was illegal; and that, if all the proceedings had been regular and legal, the respondents’ claim had priority over that of the petitioners.</p> <p>“ If any of these objections are regarded by the court as tenable, and fatal to the petitioners’ right to maintain their suit, even with such amendments, if any, as might be asked for and allowed, judgment is to be rendered for the respondents, otherwise for the petitioners.”</p>

<p>A mechanics’ lien, under the Gen. Sts. c. 150, on a building, is not dissolved by the bankruptcy of the owner of the building, although the statement required by § 5 is not filed till after the commencement of the proceedings in bankruptcy; and the petition to enforce the lien may be entered in the superior court, and ordered to stand continued to await the result of those proceedings.</p>

Contract against the owners of the brig Carira, to recover pilotage fees.

<p>Contract to recover an additional premium on a policy of insurance issued by the plaintiffs to the defendant on the ship Louis Walsh, for one year from August 17,1867, and containing this clause: “ If on a passage at the end of the term, the risk to continue at pro rata premium until twenty-four hours after arrival at port of destination, and no longer.”</p> <p>The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon the following agreed facts: “ At the end of the year the Louis Walsh was at Callao, having sailed from the Chincha Islands the day previous. She had taken a cargo at the Chincha Islands, and was bound to the Canary Islands. The Chincha Islands are a group of three small islands situated in the Pacific Ocean, off the coast of Peru, distant about fourteen miles from the shore; are valuable for large deposits of guano; belong to Peru; but have no port or custom-house, and no clearance can be effected there. Vessels carrying guano from the Chinchas clear from Callao, and when bound to these islands are obliged to call at Callao, enter at the custom-house, and get a permit to load. Callao is on the mainland, and one hundred and twenty miles distaiit from the Chinchas. Vessels on their way to the Chinchas are usually detained at Callao two or three days, during which time the crew almost invariably desert, and it becomes necessary to ship a new crew at Callao to work the vessel to and from the Chincha Islands, and to load her while there. On the return to Callao, these men, usually natives, are discharged, and a crew of seamen shipped for the voyage. Vessels, after loading at the Chinchas, get their supply of water at Callao for the voyage, and are seldom detained there less than two days.”</p> <p>If, upon these facts, the court should be of opinion that the continuation clause in the policy attached, then judgment was to be rendered for the plaintiffs for $315.56 and interest; otherwise, judgment for the defendant.</p>

<p>Contract by the executrix of the will of Calvin Perry, on a policy of insurance whereby the defendants insured the plaintiff’s testator “ against loss of life or personal injury; against loss of life in the sum of $2000, to be paid to Mary A. Perry and her legal representatives within ninety days after sufficient proof that the assured, at any time after the date hereof, and before the expiration of this policy, shall have sustained personal injury caused by any accident within the meaning of this policy and the conditions hereto annexed, and such injuries shall occasion death within ninety days from the happening thereof, sufficient proof being furnished this company; against personal injury, in the sum of $10 per week, for a period not exceeding altogether rwenty-six weeks for any single accident within the meaning of this policy, and the conditions hereto annexed, by which the assured shall sustain any personal injury which shall not be fatal but which shall absolutely and totally disable him from the prosecution of his usual employment, satisfactory proof being furnished this company.” The action was brought to recover $130, being $10 a week for each of thirteen weeks during which the testator was absolutely and totally disabled from the prosecution of his usual employment.</p> <p>The plaintiff’s testator bad his arm crushed by an accident on December 11, 1866, and continued to be absolutely and totally disabled from the prosecution of his usual employment till March 12,1867, on which day he died from the results of the accident. The defendants admitted that the plaintiff was entitled to recover unless the fact that the accident was fatal constituted a defence; and the case was submitted to the judgment of the superior court, and, on appeal, of this court, upon agreed facts, of which the material part was as above stated. The plaintiff had previously failed in an action against the defendants to recover $2000 under the policy. See 99 Mass. 162.</p>

Contract by the administrator of the estate of Almarin F. Badger on a policy of insurance, alleged to have been made by the defendants on the life of the plaintiff’s intestate.

<p>A resident of another state, having insured his life with an insurance company chartered here, by a policy payable to himself, his representatives or assigns, and conditioned to be void if assigned without consent of the insurers, delivered it to a creditor here residing, as a pledge for the debt, and died, leaving the debt unpaid. An administrator of his estate was appointed in the state of his residence; and afterwards the creditor was appointed ancillary administrator here. Tbe principal administrator then sued the insurers on the policy in the place of the domicil of the assured, and their agent duly accepted service of the summons in the suit, and of an injunction not to pay the policy to the creditor, under a statute requiring such acceptance of service. The creditor, as ancillary administrator, afterwards brought a suit on the policy against the insurers here, jn which they admitted their liability and willingness to pay the policy to the person entitled. Eeld, that the pendency of the first suit was no bar to the maintenance of the second suit; the right of the plaintiff in the second suit, inasmuch as he represented the equitable interest and right of immediate possession and control of the pledgee as well as the legal capacity to sue, being superior to^that of the principal administrator.</p>

<p>A certificate given by a life insurance company, since the passage of the St. of 1861, c. 186, acknowledging the receipt of an annual premium on a policy issued before said passage, does not make the policy subject to the provisions of that statute regarding nonforfeiture.</p>

<p>The first case was an action of tort on the St. of 1868, 89, which was passed March 27 of that year, and is printed in the margin,* against a railroad company incorporated by the St. of 1836, c. 232, to recover $400 for the delay of the defendants for two months to establish a station at Knight’s Crossing in Newbury. Writ dated September 16, 1868. The answer alleged that the St. of 1868, c. 89, was unconstitutional. The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon the pleadings, and these facts agreed ;</p> <p>“ It is agreed that, since the passage of the St. of 1868, c. 89, the defendants did not, prior to the date of this writ, take any steps byway of compliance with the provisions of said act; that they did not erect any station-house at the place named in said act, and have never caused any trains to stop at said place; and that they have never advertised or in any way recognized Knight’s Crossing as a station or place for the stopping of trains, whether signalled or otherwise. It is further agreed that the plaintiffs have no evidence that any person ever offered himself as a passenger at said station, or that any freight was ever offered there for carriage; but it is agreed also that the defendants have never made any provisions for receiving passengers or freight there.” '</p>

<p>The right of the Commonwealth to widen the draw in a bridge belonging to it over a navigable stream is not impaired by the fact that the widening will temporarily interrupt the use of the street railway of a corporation to which it has granted a right to run cars ever tho bridge.</p>

<p>The St. of 1854, c. 451, provided for the imposition of tolls on two bridges belonging tc Jis Commonwealth, between two cities, for the purpose of raising a fund to be applied to their future maintenance and repair. The St. of 1868, c. 322, provided in § 1 that the supreme judicial court should appoint three commissioners for the purposes in said statute named; and in §§ 2-5, that they should be sworn to the faithful and impartial discharge of their duties, and should, after due public notice and hearing of all parties in interest, proceed to award what counties, cities or towns received particular and special benefit from the maintenance of the bridges, and apportion and assess the expense of maintaining the same upon such of said counties, cities or towns, and in such manner and amount as they should deem equitable and just, and that the award, when returned into and accepted by the court, should be a final and conclusive adjudication and binding upon all parties, and the bridges should thereupon become highways. The court appointed commissioners “ for the purposes named ” in said statute. After the commissioners had appointed a time and place for hearing all parties and given notice accordingly, the legislature passed the St. of 1869, c. 272, which in terms repealed the St. of 1868, c. 322, §§ 2-5, and provided in §§ 1-6 that the said commissioners should cause to be made new draws in the bridges, should apply so much as might be necessary of the bridge fund to the construction of the draws, should apportion and assess, in such manner and amount as they should deem just and equitable, upon the two cities at the extremities of the bridges, the expense of maintaining and keeping in repair said bridges and draws, and should assign and divide between the cities any surplus of the fund, and, if the fund should prove insufficient, assess and apportion such deficiency upon said cities, and that upon the acceptance of this award by the court the bridges should become highways. On a bill in equity then filed by inhabitants and taxpayers of the cities to restrain the commissioners from making the new draw in one of the bridges, Held, 1. that the bridge fund could be lawfully employed in needful alterations of the bridge, and that of the question whether the making of a new draw was a needful alteration the legislature was the sole judge; 2. that the provision of the St. of 1869, c. 272, requiring the commissioners to apportion and assess the expense of maintaining the bridge on the two cities was not unconstitutional, either as limiting the judicial discretion granted to them by the St. of 1868, c. 322, or as imposing a disproportionate and unreasonable assessment; 3. that the St. of 1869, c. 272, was not unconstitutional as imposing legislative and executive functions on judicial officers; aud 4. that the commissioners, having been sworn under the St. of 1868, c. 322, need not be sworn anew under the St. of 1869, c. 272.</p> <p>After this decision, the commissioners made the new draw in that bridge, and were proceeding to make a new draw in the other bridge, when the legislature passed the St. of 1870, c. 303, which directed the said commissioners to put the bridges forthwith into good repair for travel, and in terms repealed the St. of 1869, c. 272, §§ 1-6, but substantially reenacted all its provisions relating to making an award apportioning in such manner and amount as they should deem just and equitable the future maintenance of the bridges, and the surplus of the fund, between the two cities, and to constituting the bridges highways upon the acceptance of the award by the court. The commissioners thereupon put the bridges into good repair for travel, and, after due notice to and hearing of the cities, returned into the court an award apportioning in equal parts between the two cities the surplus of the fund and the future maintenance of the bridges. On objections made by one city to the acceptance of the award, Held, 1. that no new decree of appointment was necessary to authorize the commissioners to make it, other than the decree passed originally under the St. of 1868, c. 322; and 2. that the fact that there was a great disproportion between the numbers of inhabitants, areas of territory, and total valuations of property, in the two cities, did not necessarily render the award unjust or inequitable.</p>

Contract to recover taxes assessed by the defendants upon lumber of the plaintiffs, doing business under the name of Loud Brothers & Kreuger, and paid by the plaintiffs under protest.

Contract, in behalf of Jonathan Cottle, on the bond given by Merrill, as principal, and the other defendants, as sureties, to the plaintiff, as treasurer of the city of Boston, for the faithful discharge of Merrill’s duties as a constable.

Contract upon a judgment recovered by the plaintiff against the defendant in the district court of the second judicial district of the territory of Nebraska.

<p>A creditor cannot maintain a bill in equity under the St. of 1861, c. 174, § 2, against the administrators of his debtor, to recover a debt barred by the special statute of limitations, Gen. Sts. c. 97, § 5, on the ground that he is an alien residing in a foreign country, and never knew of the decease of the debtor or the appointment of the administrators until more than two years after the latter had given bond.</p>

<p>Under the provisions of the Gen. Sts. c. 91, § 1, cl. 3, and c. 94, § 16, that the estate of an 'intestate who leaves no issue nor father shall go “ in equal shares to his mother, brothers and sisters, and to the children of any deceased brother or sister by right of representation,” the children of a deceased child of a deceased sister are not entitled to share in the distribution.</p> <p>In a bill in equity by an administrator for instructions whether, on a correct construction of the statute of distributions, a quarter of his intestate’s estate should be divided among all the defendants or among some of them only, the costs of all parties as between solicitor and client were ordered to come out of said quarter, and not out of the whole estate.</p>

<p>A testator gave “the improvement” of a lot of land to his wife, “so long as she shall occupy the same, free of rent, she remaining my widow.” “ But should my wife marry again, and improve and occupy the estate above mentioned, she shall do so, so long as she shall annually pay to my sister $300; and should my wife at any time abandon the occupancy of the estate aforesaid, then I give and devise the same ” to trustees in trust “ to dispose of said estate, and invest the moneys received from the sale of the same in stocks, or place the same securely at interest, and annually, or more frequently, if the dividends or interest accrue and be paid more frequently, pay the same to my wife and my sister in equal proportions.” After other gifts, he gave the residue of all his estafe to his wife, sister and brother in equal shares. The wife abandoned the occupancy, and the trustees sold the land and invested the proceeds. Held, that, on the wife’s death, the trust terminated, and the principal of the fund, with all after accrued income, went under the residuary clause; and that, the interest under that clause being vested, the wife’s share passed under her will.</p>

Bill in equity by Daniel B. Stedman and George Stedman, executors of the will of Josiah Stedman, praying for instructions as to the disposition of his estate.

<p>A testator, who died in June 1867, by his will directed that certain United States bonds in his possession should be sold, as soon as might be after his decease, and the avails paid over to a trustee, in trust to pay the interest thereof to L. during her life, and the principal at her death to her children. Attached to the bonds were coupons for interest, payable semiannually in May and November. The executor collected and retained the amount of the coupons which fell due in November 1867, May and November 1868 and May 1869; and in October 1869 sold the bonds with the coupons then not fully due attached, and paid the avails to the trustee. The delay in the sale was caused by adverse claims, and not bj7 any fault of the executor or beneficiaries. On a bill in equity by the executor, for instructions, against L. and the children, Held, that the amount of the four coupons collected by the executor was payable as income to L., after deducting therefrom the costs of all parties as between solicitor and client.</p>

<p>Contract to recover money deposited with the defendants by the plaintiff under the name of Catherine Shea. The answer alleged the defendants’ ignorance of the facts set forth in the declaration, and that, if the plaintiff made such deposits, she was at the time of making them the wife of Daniel Shea ; “ that said deposits belonged to him and not to the plaintiff, and were made by the plaintiff for him, at his request and for his benefit; that, prior to the commencement of the plaintiff’s suit and since said deposits were made, Daniel Shea died, and Patrick J. Shea, his son, has been duly appointed administrator of his estate, and now claims said deposits as such administrator, and has demanded the same of the defendants and notified the defendants not to pay over any money to the plaintiff out of the moneys so deposited; and that the plaintiff has not duly notified and demanded of the defendants said deposits of money, as required by the plaintiff’s contract, if any, with the defendants, and as required by law.” Trial in the superior court, before Reed, J., who, after a verdict for the plaintiff, allowed a bill of exceptions substantially as follows:</p> <p>“ The pleadings make a part of the case. The defendants answered, among other things, that the moneys, when deposited by the plaintiff, belonged to Daniel Shea, the former husband of the plaintiff; that the moneys were all deposited while the plaintiff was the wife of said Daniel Shea; that Patrick J. Shea, son of Daniel Shea, had been duly appointed administrator of his estate, and had notified the defendants of those facts, and forbade payment of said money to the plaintiff, and required payment thereof to him as such administrator.</p> <p>“ For the purpose of a ruling by the judge upon the sufficiency of said defence, if proved, the parties admitted, for the time being, that the moneys claimed were deposited in the name of Catherine Shea; that a book in the usual form and containing the contract usual in such cases was delivered by the defendants to the plaintiff (said book may be referred to for the contract, and to show the times of deposit); that a demand had been made upon the defendants therefor by the plaintiff before suit was commenced ; that the plaintiff was now married to Philip McCluskey; and that Patrick J. Shea, as administrator of the estate of Daniel Shea, had demanded the money of the defendants. Upon this statement, the judge ruled that said defence could not be maintained, and ordered a verdict for the plaintiff; to which ruling the defendants excepted.” The case was argued in writing in November 1868.</p>

<p>The order of a customer to a broker to buy stock, deliverable at any time, at buyer’s option, in sixty days, does not authorize the broker to buy the stock himself at thirty days, and deliver it to his customer at the end of sixty days at an increased price and interest, besides the usual commission; and a usage of brokers so to do is bad; nor is the exchange of bought and sold notes between the broker and his customer, nor the giving of his note by the customer in payment for the stock, in ignorance of the broker’s conduct, a ratification of his acts.</p> <p>A. person to whom certificates of mining stock with blank assignments had been pledged filled up the assignments, had new certificates made out to himself, and afterwards had some of the stock transferred to J. S., as trustee, and the rest by assignments, absolute on their face, to other persons. Held, that it was competent for him to prove, in defence to an action by the pledgor against him for the conversion of the stock, that he made these transfers because he thought that it would injure his credit to have so many mining stocks standing in his name; that no consideration was paid for any of these transfers; that he took back blank assignments from all the transferees except J. S.; and that all the stocks remained in his control and ready for delivery to the owner on the payment of the amount for which they were pledged. Held, also, that these facts, if proved, were a good defence to the action.</p>

<p>Brokers, having been ordered by a person to buy stock for him, bought and paid for it, took the certificate in their own name, offered to transfer the certificate to him, and demanded payment, but he neglected to pay. Held, that they could recover from him the price paid by them, and not merely the difference between that price and the market value of the stock on the day of their demand.</p>

<p>Contract by stockbrokers to recover the price paid for three hundred shares of stock in the Hancock Mining Company, purchased by them for the defendant from Aaron W. Spencer. The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon agreed facts, the material part of which is stated in the opinion.</p>

<p>Contract on a bill of exchange, dated at London in England July 31,1868, for ¿6100, drawn on the defendant in Boston and accepted by him, payable at a bank in Boston.</p> <p>The defendant was defaulted in the superior court. The plaintiffs contended that in assessing damages the pound sterling should be estimated at $4.84 in coin, but the court ruled that it should be estimated at $4.84 “ in currency,” and the plaintiffs alleged exceptions.</p>

<p>If interest at a greater annual rate than six per cent., in accordance with the terms of a contract made before the repeal of the usury laws by the St. of 1867, c. 56, is voluntarily paid after such repeal, no action can be maintained on the Gen. Sts. c. 53, §§ 4, 5, to recover threefold the amount paid, or the amount itself, although the St. of 1867 provides that such repeal “ shall not affect any existing contract, or action pending, or existing right of action.”</p>

<p>In an action on a bill of exchange, in which the defence of usury is set up, conversations between the drawer and first indorser are competent evidence, so far as they re'ate to and form part of the transactions of indorsing and negotiating the bill and disposing of the proceeds.</p> <p>In an action on a bill of exchange, the admission of the holder that he discounted it at a usurious rate is competent evidence, although made at an interview had for the purpose of an adjustment.</p> <p>The refusal of a deponent to answer an impertinent cross-interrogatory is not sufficient reason for rejecting the deposition.</p> <p>A party to a suit who has taken the deposition of a witness may take a second deposition of the same witness.</p> <p>An objection that interrogatories in a deposition are leading cannot be first taken when the deposition is offered in court.</p> <p>In an action on a bill of exchange, the drawer and indorser are competent witnesses to show usury to which the holder was a party.</p> <p>The St. of 1863, c. 242, does not preclude the defence of usury in an action on a bill of exchange, if the holder was a party to the usury.</p> <p>Bills of exchange, drawn in New York and payable in this Commonwealth, accepted and indorsed for the accommodation of the drawer, were, at the request of the indorser, discounted in New York by the plaintiffs at a rate of interest greater than was at the time lawful by the laws of New York or of this Commonwealth. Part of the proceeds was paid to the drawer, and the rest was lent by him to the indorser. Held, that as by the law of New York the bills were void in the hands of the plaintiffs, they could not recover against the acceptor, even if he held property of the, drawer as collateral security.</p>

<p>Promissory notes given by a debtor to his creditor for twice the amount really due, for the purpose of enabling that creditor to obtain a larger dividend under a composition deed between the debtor and all his creditors, are void as between the parties to them.</p>

<p>Contract for money had and received. The case was submitted to the' judgment of the superior court, and, on appeal, of this court, upon an agreed statement of facts, of which the material part was as follows:</p> <p>“ The plaintiffs are traders doing business in Boston; and the defendants a banking corporation in Saco, Maine. On November 22,1867, the plaintiffs inclosed to the defendants a check of Bean & Sawyer on the defendants for $200, and also a postage stamp, and wrote as follows : ‘ Please send us a check on some Boston bank for the inclosed check of Bean & Sawyer for $200. Bean & Sawyer having funds in the hands of the defendants to more than $200, the defendants’ cashier, on receipt of the plaintiffs’ letter, inclosed to the plaintiffs at Boston the check of Hiram Curtis on the Boylston National Bank of Boston for $195.72, and $4.28 in currency; duly stamped and addressed the letter to the plaintiffs at Boston ; and deposited the same in the post-office at Saco. This letter never reached the plaintiffs. Due diligence was used at both points to find it. The check of Curtis was drawn against funds in the Boylston National Bank and he and Bean & Sawyer were both in good standing at the time. The plaintiffs made efforts to obtain from Curtis a duplicate check, but never received from Curtis or the bank any check or money; and Curtis subsequently became bankrupt. The c.ustom of the defendants and of the banks in Maine was to charge one quarter of one per cent, for drafts on Boston. If, in the opinion of the court, the plaintiffs can maintain their action on these facts, judgment to be entered for them for $200, and interest from November 23, 1867; otherwise, for the defendants.”</p>

<p>fhe plaintiff in New York wrote to the defendants in Boston, offering to sell them coal, and stating that he had a vessel of 375 tons which he could load “ on Monday.” The defendants telegraphed in reply', on the Monday next after the date of the letter, “ Ship that cargo 375 tons immediately.” The plaintiff did not begin to load till nine days after-wards, and then shipped a cargo of 392 tons. Held, that the defendants were not hound to take it.</p>

<p>Contract on an account annexed for Manila sugar sold by the plaintiffs to the defendants. Trial, and verdict for the plaintiffs, in the superior court, before Brigham, C. J., who allowed the following bill of exceptions:</p> <p>“ There was evidence tending to prove that the sale of the sugar in dispute was made through a broker, and the sale note was as follows : ‘ Boston, May 12,1868. Sold to Eagle Sugar Refinery, for account of Messrs. Gossler & Co., 3400 bags Manila sugar. Ex Medena. @ 10& less 2¿ cash. Duty to be at rate of 39^ % premium. Jos. B. Glover & Co., Merchandise Brokers ; ’ that after the delivery of the sugar, and in the process of refining, it was found to contain four per cent, of sand; that the defendants and the brokers were notified thereof; and that at the time of the sale neither buyer nor seller knew of the existence of sand proper in the sugar. The plaintiffs submitted evidence tending to show that four per cent, of sand in sugar of that grade was not an unusual quantity; and the defendants submitted evidence tending to show that of sand proper there was none, that four per cent, would be an unusual quantity, and that the lot in question contained three per cent, more than was usual in sugar of this description.</p> <p>“ In the examination, as a witness, of Samuel T. Lamb, the agent of the defendants, he was asked 1 if he did not figure with a certain degree of nicety in fixing the price pf sugar by its quality,’ which; being objected to, the judge refused to allow the question to be put, and the defendants excepted.</p> <p>“ The plaintiffs called Warren Fisher as an expert, who testified that he was agent of the Adams Sugar Refinery ; that he had no knowledge of refining, but bought for the company; and that he bought in 1866 one lot of 19,000 bags of Manila sugar. The defendants objected to the witness testifying as an expert. The judge allowed him to so testify, and he stated that said lot contained three per cent, of sand, and that it was superior Manila sugar. On cross-examination, he testified that he did not test the sugar referred to; and that it was reported to him. There was no evidence offered to show any custom among merchants to consider Manila sugar containing four per cent, of sand merchantable sugar or Manila sugar in the market, and the examination of the witnesses was confined to the question whether this lot of sugar contained more than the usual quantity of sand in Manila sugar of that grade.</p> <p>“ The defendants requested the judge-to instruct the jury aa follows: ‘ The sale being of Manila sugar, it is for the jury to find whether there was four per cent, of sand in the goods delivered, and, if they find there was, then the verdict should be for the defendants. If the jury are satisfied that the sugar delivered contained an amount of sand unusual in Manila sugar, then the defendants will be entitled to a verdict, or a deduction from the bill to the amount of the price charged for the weight of sand. If the jury are satisfied that the sugar delivered contained an amount of sand unusual in Manila sugar, then the defendants are entitled to a deduction from the bill of the price charged for the weight of sand in excess of the amount shown to have been usually found in such sugar.’</p> <p>“ The judge declined so to instruct the jury, and charged them substantially that the question for them to decide was, simply, whether the sugar delivered answered the description in the sale note in being sugar; that the four per cent, of sand was not in dispute; that the question for them was, whether the four per cent, was such an adulteration as prevented it being called in commerce Manila sugar; that, if it was sugar, the plaintiff could recover; that the existence of the four per cent, of sand was not a decisive circumstance for the defendants in any event; that the defendants complained that they did not get what they bought; and that, if what they got was an article which, in commercial language, passed for sugar, the plaintiffs could recover; and he instructed them to answer the following question : ‘ Did the plaintiffs deliver to the defendants an article which in commercial language might properly be said to come under the denomination of Manila sugar? ’ The jury answered in the affirmative, and the defendants alleged exceptions.”</p>

<p>One to whom the pledgee of goods has, with the pledgor’s consent, consigned them for sale, can in his own name make demand, under the Gen. Sts. c. 123, §§ 62, 63, for payment of the amount for which they were pledged, upon an officer who has attached them on a writ against the pledgor; and, on refusal of the officer to pay the amount or release the attachment, can in his own name maintain an action against him for their conversion.</p> <p>The lien of a pledgee covers freight paid by him on the goods pledged.</p> <p>A demand, under the Gen. Sts. c. 123, §§ 62, 63, by one having a lien on property attached, is good, though made for an amount larger than is due, if the amount due exceeds the value of the property.</p> <p>An officer who had paid freight due on property attached by him, afterwards, on the demand of a person who had a lien on the property for advances, refused either to pay the amount of the lien or to release the attachment. Eeld, that, in estimating damages, in an action by such person against the officer for conversion of the property, the sum paid for the freight must be deducted from the value of the property.</p>

<p>Bill in equity, filed May 25,1865, by John P. Tarbell and Catherine E. Tarbell, his wife, against the assignees in insolvency of the firm of Trull Brothers. The case is stated in the opinion.</p>

<p>Succession and legacy duties payable under the U. S. St. of 1864, c. 173, in respect to the interest of the cestui que trust in a gift by a will, made before the passage of that statute, of a fund to trustees, “ to receive and collect the income and produce thereof, and, after deducting all needful and proper costs, charges and expenses, to pay the residue of said income” to said cestui que trust during her life, are a charge upon the income of the" fund.</p> <p>If the owner of land leased for a rent payable quarterly dies between two quarter-days and devises the land to trustees “ to receive and collect the income and produce thereof, and, after deducting all needful and proper costs, charges and expenses, to pay the residue of said income” to A. during her life, and on A.’s death the capital to B., the rent which falls due on the quarter-day next after the death is not apportionable between the income and capital of the fund, but goes to the life tenant.</p> <p>A fund, consisting partly of two wharves out of repair, was devised to trustees “ to receive and collect the income and produce thereof, and after deducting all needful and proper costs, charges and expenses, to pay the residue of said income ” to A. during her life, and on A.’s death the capital to B.; with “full power and authority” to the trustees “ to invest, reinvest and change any and all property of which the trust premises shall be at any time composed, in such manner as they may deem most beneficial for the partes interested in the fund.” Held, that the trustees had power to invest capital of the fund in repairing and reconstructing the wharves in such a manner as to increase their value to the full extent of the amount expended.</p>

Contract on a poor debtor’s recognizance, wherein the defendant Gage was principal and the other defendant surety. The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon agreed facts substantially as follows: The plaintiff, who lived outside of the Commonwealth, brought an action against the defendant in the municipal court of Boston.

<p>Under an agreement to sell and convey land with a good title, the purchaser is not entitled to a warranty deed.</p> <p>In an action for the price of land, in which the defendant set up as a defence that the land conveyed to him was not that which he agreed to purchase, the judge instructed the jury that “if the defendant was negotiating for one thing and the plaintiff was selling another, and their minds did not agree as to the subject matter, they could not be said tt> have agreed and made a contract, although there was no fraud on the part of the plaintiff,” and that “ mistake alone, if proved, was a good defence.” Held, that the plaintiff had no ground of exception.</p>

Tort. The first count in the declaration alleged that the defendant forcibly entered the plaintiff’s close, being the dwelling-house numbered 8 on Brookline Street in Boston, tore out, took and carried away certain fixtures in said dwelling- house, and converted them to his own use.

<p>Petition under the Sts. of 1868, c. 292, and 1869, c. 7, by-Henry W. Benham and John G. Foster, agents of the United States, for a jury to assess the value of the tract of lowland and flats on Long Island in Boston harbor, consent to the purchase of which by the United States was granted by the first named statute. Hearing by the jury in the superior court at April term 1869, before Brigham, C. J., who allowed the following bill of exceptions :</p> <p>“ The tract of lowland and flats in question is on Long Island, one of the islands in Boston harbor, and distant from Long Wharf from five to six miles; the tract of lowland being an isth mus connecting the east head of Long Island with the main portion thereof, and containing ten acres, the flats thereto appurtenant being four acres and a quarter. The whole island contains 250 acres, all of which, except the east head, embracing about 25 acres, and some twenty small building lots, none of them exceeding a quarter of an acre in extent, were the property of the respondents. There was evidence tending to show that there was, upon the part of the island belonging to the respondents, one hotel, built in 1851 and 1852, and recently repaired; one small cottage, to be used for a hotel; two cottages just repaired; and several other small buildings, of but trifling value. There was also a wharf, which had cost some $6000, built in 1851 and 1852, and recently largely repaired. There was evidence tending to show that the respondents, who became the owners in the fall of 1867, had expended, in improvements in the island, $30,000, and that they had built a steamboat for the purpose of running between Boston and this island, and other places, at a cost of $30,000. It was admitted by both parties that the tract of lowland was utterly worthless for agricultural uses. Under proper instructions from the judge, and before any testimony was offered, the jury were taken to the premises for a view thereof. A chart of Boston harbor, with all the islands therein, and mainlands bordering thereon, with the depths of water around all the said islands and headlands, was admitted by both parties as evidence of the location, soundings, &c., of the water, and lands therein designated.</p> <p>“ The respondents introduced testimony tending to show that the property they claimed had, within two years, passed into their hands as trustees of the Boston Bay Steamboat & Land Company; that the object this company had in view was to enhance the value of this property by creating a demand for it for building purposes as a place of resort upon the seashore; that, to accomplish this, they had, in addition to the steps taken as enumerated, contracted for bathing-houses, which they were about to erect upon the ten acres of lowland in question ; that the said ten acres were of value to the whole island, as affording the best place at the least expense to build a wharf to deep water, and were also valuable because there was upon them a large deposit of sand suitable for building purposes, and because they furnished desirable fishing stations, for which they were in demand, and for which purpose the respondents had been offered $10,000.</p> <p>“ The petitioners then introduced testimony tending to show that the island was of value only for its agricultural uses; and that all previous efforts to make the island of value as a place of- resort upon the seashore had proved failures. Without objection from the respondents, the petitioners also introduced testimony to show that the whole of the said 250 acres was leased in 1847 for about $550 per annum for farming purposes, with the privilege of selling ballast; that in 1865 the same property was leased for $500 per annum, without the privilege of selling ballast, and was used for cultivation and grazing; that the hate apon the property, which in 1851 and 1852 cost $35,000, was sold in 1860 and 1865 for $12,000, and paid for part in cash and part in stock of the incorporated company to whom the premises then belonged; that two efforts were made, in 1850 and 1860, to sell lands upon the island at auction, one of which was partially successful to a small amount, the other a failure; that in 1867 about 220 acres of the island, including the wharf designated, were sold for $12,000; that, from 1851 to 1867, previous companies had attempted to make the premises of value for building purposes, but had failed; that at the present time there were but three or four houses on the island, these being, except the hotel, cottages of but little value; that the ten acres of lowland, for fishing purposes, were of inferior quality to other islands situated from three to six miles further from Long Wharf; that the deepest water was not off the ten acres as alleged ; and that the sand found there was not the best for building purposes, and not such as the engineers would use for works to be erected there.</p> <p>“ The petitioners further offered the following testimony of actual sales of land in Boston harbor, and at the following dates: Apple Island: purchased by the city of Boston in 1867, containing nine and a half acres, situated in Boston harbor, two miles and three fourths northwest of the eastern end of Long Island. Peddick’s Island: eight acres sold thereon in 1869; situated in Boston harbor, two and a half miles from Long Island. Gallop’s Island: purchased by the city of Boston in 1860; containing sixteen acres, situated in Boston harbor, less than half a mile from Long Island; but no buildings had been erected thereon besides fishing and farm buildings, and they had no regular communication with Boston. The petitioners having introduced, without objection, testimony tending to show that these islands were similar in character and possessed the same agricultural value as the upland on Long Island, and wsre similarly situated thereto, asked of a witness the prices the city paid for Apple Island and Gallop’s Island. The respondents objected, but the presiding judge ruled that the question was proper, and the answer admissible; and the question was put and answered-</p> <p>“ The petitioners also introduced, without objection from the respondents, testimony of recent sales of lands upon the points and headlands of the shore as follows: At Point Allerton, four miles from the said ten acres, in 1868; Sagamore Head, six miles therefrom, land sold in 1867; Strawberry Hill, four miles therefrom, lands sold in 1867; at Hull, two and three quarters miles therefrom, lands sold in 1868; also, of sales of common lands between Point Allerton and Hull, sold in 1865. They also introduced evidence tending to show that, with the exception of the common lands between Point Allerton and Hull, these lands were of the same agricultural value in soil as the upland on Long Island, and were similarly situated as to the sea, and that these common lands were of precisely the same character as the ten acres of the respondents, and similarly situated in relation to the uplands; but that none of the other islands had any but fishing or farm buildings on them, or regular communication with Boston. The petitioners then asked as to the prices paid for the lands. The respondents objected. But the presiding judge ruled that the questions were proper; and they were put and answered.</p> <p>“ The jury found the value of the fee of the tract of lowland and flats to be $2850; and the respondents alleged exceptions.”</p>

<p>A., owning land in a city, signed and delivered to B. a writing of which the following is the material part: “I hereby agree to let to B.” the land; u he agrees to pay $400 per year, payable monthly,” and do certain repairs; “ I am to do all outside repairs, and at present to fence the yard, repair the cellar and lay a water pipe; and I will make a lease to B. of the premises for three, with a privilege of five years from date.” B. entered into possession immediately, and paid the rent named till ejected. The city afterwards, but within the term first named, took part of the land to widen a street. Held, that the writing was not a lease; and that B. could not maintain a bill in equity against the city to recover any portion of the damages assessed for the taking.</p>

Bill in equity for specific performance of an agreement to renew the lease of a dwelling-house numbered 28 on Pemberton Square in Boston.

<p>In an action on the Gen. Sts. c. 137, exceptions to the refusal of the judge to give instroetions requested as to the existence of the relation of landlord and tenant between the parties cannot be sustained, if they show that, although the judge declined to give the instructions in the form asked for, jTet he stated fully to the jury the different ways by which said relation could be created and its existence proved, to which statements no exception was taken.</p>

<p>Contract. The declaration alleged that the defendant owed the plaintiff $275 “for rent of chambers” in a certain building in Boston, “ one month to November 1, 1868,” and the defendant refused to pay the same. The answer denied each and every allegation of the declaration, and alleged that the defendant made repairs and improvements on the demised premises, the expense of which the plaintiff agreed might be deducted from the rent. The defendant also filed a declaration in set-off, for his expenses in repairs and improvements of the premises.</p> <p>At the trial in the superior court, before Reed, J., the plaintiff offered in evidence an indenture of lease between the parties, and the defendant objected that it was not admissible under the declaration ; but the judge admitted it.</p> <p>It appeared that, at the timé of the execution of the lease, the plaintiff signed and gave to the defendant the following agreement under seal: “ Boston, July 35, 1868. Whereas, I have this day executed a lease of premises numbered 143 Washington Street, in Boston, to Lewis A. Roberts, I dp hereby agree with said Roberts that he may make repairs upon said premises during said term, and that I will pay towards such repairs the sum of $450 in the whole, he to retain that sum from the rent to grow due upon said lease from time to time, as the same shall have been expended by him in such repairs. The lessee to exhibit bills as vouchers, satisfactory to the lessor.” The judge ruled that the defendant could only recover, in set-off, and have deducted from the amount of rent due at the date of the writ, such sums as had then been paid for repairs, and not the amount of any bills for such repairs then outstanding and unpaid.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Action under the Gen. Sts. c. 137, to recover possession of a shop in Boston. Writ dated May 28, 1868.

<p>Contract to recover rent of a store on Congress Street in Boston, under the covenants in an indenture of lease dated Oc> tober 1,1867, by which the premises were demised by the plaintiff to the defendants. The answer denied that the defendants had executed the indenture, and alleged that, if they had done so, they had been induced thereto by the false and fraudulent representations of the plaintiff. Trial in the superior court, before Morion, J., who, after a verdict for the defendants, allowed a bill of exceptions, of which the material part was as follows:</p> <p>“ The plaintiff proved the execution of the lease, and that the rent, becoming due according to the terms of the lease, for the quarters ending December 31 and March 31, was demanded and not paid.</p> <p>“ It appeared that the store upon the leased premises had been recently built for the plaintiff, and completed about the latter part of September; that, before the building was completed, the defendants had by paroi arranged with the plaintiff to hire the building, and had been shown the plans thereof; that on October 1,1867, they entered into possession ; and that, some weeks after this, the plaintiff brought to them the lease to be executed. The defendants contended that they had been induced to sign the lease by false and fraudulent representations made by the plaintiff, and introduced evidence tending to show that, when the plaintiff brought the lease to be signed by them, a communication was had with him. The plaintiff objected to the admissibility of this conversation, but the judge ruled that it was competent under the pleadings. Three witnesses testified to the conversation, whose statements differed somewhat as to the exact language used. The substance of their testimony was as follows: The plaintiff brought in the lease, and asked the defendants to sign it. The defendants said that they were not satisfied with the way the store was built; that it had settled, and was not properly built, and was not safe; and declined signing the lease. The plaintiff replied that it was built according to the plans in every particular. The defendants asked if the drains were where they were to be according to the plans. After some further communication, the defendants said, ‘ If the store is built according to the plans, we ought to sign the lease;’ to which the plaintiff replied, ‘ It is built according to the plana in every particular;’ whereupon the defendants executed the lease.</p> <p>“It appeared that, about a week after the lease was executed, the partition wall between this and the adjoining store settled, a portion of the front wall fell in, and the building became unfit for use, and dangerous, and the defendants at once moved out, obtaining a store elsewhere, and had not since occupied the leased premises. ,</p> <p>“ The defendants also introduced testimony tending to show that the store was not built according to the plans ; particularly that the drain to empty the water-closets was not built as laid down in the plan, but much nearer the partition wall, and in some places was lower than the foundation of the wall, and thus caused or contributed to the settling of the wall. There was contradictory testimony as to the construction and erection'of the plaintiff’s drain, and as to whether its construction contributed to the settling of the wall. It did not appear by any direct testimony that the plaintiff knew where the drain was constructed, or anything in regard to its construction, till after the accident. The store was repaired and ready for occupancy in about a month after the accident.</p> <p>“ The judge instructed the jury that, if the defendants were induced to execute the lease by representations made by the plaintiff of material facts which were false, they would be entitled to avoid the lease upon proving, either that the plaintiff knew them to be false when he made them, or that the plaintiff with a view to induce the defendants to execute the lease, positively affirmed them as of his own knowledge; that, whatever the language used, if it was intended only to express a belief or opinion founded upon information or other sources, it was not sufficient, but that the plaintiff must have intended and been understood by the defendants to affirm that he knew the facts of his own knowledge.”</p>

Tort by Alfred M. Farley, George H. Hill and William A. Quinn for the conversion by the defendant of five cases of glass, the property of the plaintiffs ; a count in contract for goods sold and delivered, alleged to be for the same cause of aclion, was added.

<p>Tort to recover for personal injuries received by the female plaintiff in falling or being thrown from one of the defendants’ coaches.</p> <p>At the trial in the superior court, before Morton, J., it appeared that at the time of the accident there had been a snow storm which prevented the defendants, who were common carriers of passengers, from running horse cars, their usual mode of transporting passengers, and they were running coaches on runners, kept for such occasional use.</p> <p>The female plaintiff testified as follows :* “ A man hailed the coach, opened the door and waited until I got in. I saw no conductor, no straps. There was no seat for me when I stepped in. I was in but a moment, and did . not look round to recognize anybody. First I knew, I was out in the street; fell on my back and side; fell out backwards as quick as I got in. The coach started as soon as I got in, or nearly in; no time to be seated. I knew the conductor and think he was about, as he came to pick me up. I was with child.” On cross-examination she further testified : “ The seats were all full, and people were standing up inside; space all occupied; as much as ever I could do to get in. The door was open when I got to it and went in. The conductor was not there. Some one closed it from the window. I saw'that there was no strap on the inside attached to the door; had not time to lean against the door; and could not step forward, as the coach was filled. It was a covered omnibus. Always have a strap to hold on to; this one had no strap to hold on to. It stooped on bare ground ; it is harder starting on bare ground.”</p> <p>Mary Graves testified: “I saw the female plaintiff go in. Should think she had but just got in before she fell out backwards. She had not time tc sit down, if there was a seat, before they started horses. I have an impression that the door was open when she went to go in. The conductor was on the box with the driver.”</p> <p>Ambrose B. Adams testified : “ The coach stopped, and the female plaintiff got in; had not time to adjust her position when she was thrown out. There was no strap to the coach; there was a bar across inside to take hold of. She stepped forward to look for a seat, and, instead of taking hold of the bar, stepped back to lean against the jamb of the door, when the carriage started. The coach stopped as usual, and started as usual. She stepped back to lean; there was nothing on the door or steps to hold on to ; the door closed behind her, or partially so at least, of itself. She stepped into the coach and then stepped back again; I should say about one step. The coach had a flat roof; could hardly stand up in it.”</p> <p>Jacob C. Wentworth testified : “ The female plaintiff fell out immediately after getting in; she had not more than got in ; the starting of the coach threw her out; I don’t remember about the start.”</p> <p>The defendants, at the close of the plaintiffs’ evidence, asked the judge to rule that “ the female plaintiff had not shown due care on her own part, or such negligence on the part of the defendants as to entitle her to recover, and that no liability was shown on the part of the defendants by this evidence.” But the judge refused so to rule.</p> <p>The defendants called, among their witnesses, Albert Huse, a passenger in the coach at the time of the accident, who testified: u The female plaintiff got into the omnibus. I shut the dc-or after her myself by reaching out my hand and swinging it together. She leaned deliberately back against the door; there was -just room for one to stand when she got in. The conductor was engaged taking fares outside; the coach stopped on snow; when the plaintiff struck, she hit on bare ground. There vwas .nothing unusual in the starting of the coach ; I have no4 seen a strap used for two years. The strap is used for the purpose of conveying intelligence to the driver, not to hold the door, or to hold on to.”</p> <p>At the close of the defendants’ evidence the female plaiatiff, being recalled as a witness in the plaintiffs’ behalf, .testified “that she did not lean nor attempt to lean against the coach.”</p> <p>The defendants requested the judge to instruct the jury as follows: First, “ that the plaintiffs must show affirmatively that the female plaintiff was in the exercise of due care; and if not, and her want of due care contributed to the accident, she cannot recover; that the accident must have been occasioned solely by negligence on the part of the defendants, she being in no wise in fault herself; that if she saw, or had an opportunity to see, that the coach was full, and she could not ride without standing up in the coach next to the door, where she could not conveniently stand, or do so with reasonable safety, it was her duty to wait for the next coach, and it was a want of due care to enter and attempt to ride in that way; and that if there were bars across the coach for her to take hold of, and steady herself by, and she did not do it, but stood without support or leaned against the door, that would be a want of due care on her part, and she cannot recover.” Second, “ that the defendants were not bound to provide and keep a man at the end of the coach to prevent persons from falling out; that there was no evidence in the case tending to show what constitutes in law negligence on the part of the defendants, and upon the whole evidence no negligence on the part of the defendants was shown ; also that., apon the evidence, due care was not shown on the part of the icmale plaintiff; that if she did as testified to by Adams, she could not recover, or if as stated by Huse, this would be negligence oil her part; that the evidence of the female plaintiff herself, taken to be true as given, would not show due care on her part or entitle her to recover.”</p> <p>The judge instructed the jury “ that the burden of proof was upon the plaintiffs to show that the injury was caused solely by the negligence of the defendants or their agents, and that the female plaintiff’s own want of due care in no degree contributed to it;” adopted the first prayer of the defendants for instructions'; further instructed the jury “that by due care was meant not extreme care, but ordinary care, such care as men of ordinary prudence or such care as the generality of men and women use under the same circumstances ; and that it was for the jury to determine upon all the evidence and the instructions given them, whether the plaintiffs had shown that the female plaintiff was in the exercise of such care;” and refused to grant the second prayer of the defendants for instructions. The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions. In the bill of exceptions the evidence of both parties, except as to the character and extent of the female plaintiff’s injuries, was set forth in full, and those portions of it omitted from this report were substantially reiterations of the portions above reported.</p>

<p>A debtor, who has deposited the amount of his debt in a bank, subject to his own order, may be summoned and charged as trustee of his creditors, although he made the deposit at their request, and on their agreement that he should incur no responsibility therefor.</p>

<p>The liability of sureties on a bail bond under the Gen. Sts. c. 125, is limited by the penalty of the bond, with interest from the time return of non esl inventus is made on execution.</p>

<p>In a policy of insurance on a ship, a warranty “ not to load more than her registered tonnage ” with either or all of certain articles, including coal, applies only to articles laden as cargo; and is not broken by taking on board, besides that amount of the prohibited articles as cargo, a quantity of coal for dunnage, when a suitable material, actually and in good faith used, and no more than is reasonably necessary, for that purpose, even if freight is received for its carriage.</p>

<p>An oral promise to make a will of all the testator’s property, real and personal, in favor of a person who in consideration thereof agrees to make a similar will in favor of the first testator and makes one accordingly, is a contract for the sale of lands, within the statute of frauds, Gen. Sts. c. 105, § 1.</p>

<p>Contract against S. M.. Roberts. Thomas F. Currier was summoned as trustee. At October term 1868 of the superior court, at which the writ was returnable, the trustee answered that, at the time of the service of the writ upon him, he had no funds of S. M. Roberts in his hands; but, in answer to interrogatories filed by the plaintiffs, he admitted that he had funds of Lydia J. Roberts. At January term following, the writ was amended, on the plaintiff’s motion, so that the action was brought against S. M. Roberts, otherwise called Lydia J. Roberts; due notice was given to Lydia J. Roberts, and she was defaulted. The trustee filed an additional answer, setting forth that on October 31, 1868, he received a copy of an assignment dated October 30, 1868, of the funds in bis bands by Lydia J Roberts to Yalcntine Gleason. The trustee was charged in the superior court, and appealed.</p>

<p>Indictment for the murder of Mary Dorsey, the defendant’s wife, by striking her upon her head with a club, on May 1,1869. Trial before Chapman, C. J., Gray, Colt and Ames, JJ., at a special term in October 1869 for Hampshire.</p> <p>Upon the empanelling of the jury, the attorney general peremptorily challenged a juror. The defendant objected that the Commonwealth had no right of peremptory challenge; and that the St. of 1869, c. 151, allowing it, was unconstitutional; but the objection was overruled, and the challenge allowed.</p> <p>“ The Commonwealth introduced circumstantial evidence tending to show that the murder was committed by the defendant with a club, in the yard of his own house, late in the evening of May 1, and, among other things, that the next day there were several hairs adhering to the club with which it was contended that the murder was committed. A witness, not an expert, was allowed, against the defendant’s objection, to testify that these hairs appeared to his naked eye to be human hairs.</p> <p>“ Another witness, called by the defendant, was asked, on cross-examination, whether he did not think that the hairs, which he saw on the club on the day after the homicide, came from the head of the deceased. The defendant objected, but the objection was overruled, and the witness answered,1 My impression was that they resembled hers.’ The witness had previously testified that he was one of the jury at the coroner’s inquest, and saw and compared the hairs of the deceased with those on the club.</p> <p>“ The defendant introduced evidence that there was a horse-post in the yard, to which horses were frequently tied, at and before the time of the homicide. He then offered to show that the wood-piles in the yard had remained in substantially the same condition as at that time, and that there were hairs on some of the wood on the 9th of the subsequent October. But the evidence was objected to by the attorney general, and excluded by the court as immaterial.”</p> <p>The jury found the defendant guilty, and he alleged exceptions, which were argued at Boston before all the judges but Ames, J.</p>

<p>Indictment returned into the superior court for Suffolk at August term 1869, charging Brown and Andrew Drake with assault and battery each upon the other. Drake pleaded guilty Brown was tried and found guilty, before ¡Scudder, J., who allowed exceptions in substance as follows:</p> <p>“ It appeared at the trial, that the defendants were engaged by previous agreement, in a fight with their fists, when Drak suddenly stabbed Brown with a knife ; and that Brown immediately reported the facts to a police officer, on whose complaint Drake was brought before the municipal court of the city of Boston for an assault on Brown with a knife. At the examination before the municipal court, Brown appeared as a witness for the Commonwealth, and Drake was held to bail for said assault with a knife. Brown also appeared as a witness for the Commonwealth before the grand jury. The matter of good faith or bad faith on the part of Brown was not discussed or alluded to by the Commonwealth.</p> <p>“ Upon this evidence, the defendant’s counsel contended that the Commonwealth had accepted and used Brown as its witness ; and that the faith of the Commonwealth was thereby pledged to him to protect him from harm by reason of bis complicity in the offence set forth in the indictment. But the court allowed the defendant to be put on trial, and he was convicted of a simple assault, and excepted to these rulings.”</p>

<p>Indictment for larceny of “a certain paper writing, called and being a ‘discharge’ from tbe military service of the United States, of the value of one hundred dollars; one ‘ discharge ’ paper of the value of one hundred dollars; one check of tbe denomination and value of one hundred dollars; one bank check of the denomination and value of one hundred dollars; one order for money of the denomination and value of one hundred dollars; one promissory note of the denomination and value of one hundred dollars; one draft of the denoriiination and value of one hundred dollars; of the property, goods and chattels of one George P. Gill.” At the trial in the superior court, before Lord, J., the following evidence was introduced in behalf of the Commonwealth :</p> <p>Frederick L. Cutting, a clerk in the office of the surgeon general of Massachusetts, testified that, on August 15, 1868, between eleven o’clock and noon, the defendant came to the office and asked for his bounty, and, being asked “ Whose bounty?” said “ Gill’s,” and, being further asked if he had no other name, said “George P.;” that he was then asked several questions, such as are usually put to such applicants, as to his age, place of birth, regiment, company and commander, all of which be answered ; that he again asked for his bounty, and a check for the amount of George P. Gill’s bounty and Gill’s discharge paper were given to him in one package; that this check was drawn by the paymaster general of the United States army, at Washington, upon the assistant treasurer of the United States, at New York City, payable to the order of George P. Gill, and had never come into Gill’s actual possession, but had been sent through the state agent of Massachusetts at Washington to the surgeon general’s office in Boston, and had remained there until this occasion; and that the discharge paper was Gill’s property, and had been been left by him in the office when he applied for his bounty. On cross-examination, this witness testified that the defendant did not ask for the discharge paper, but that the witness gave him the check and discharge paper together, and that he took them both.</p> <p>George P. Hawes testified that, on August 15,1868, he saw the defendant at the station of the Old Colony Railroad in Boston, shortly before noon, and asked him where he had been, and the defendant replied that he had gone from Stoughton to Braintree that morning to hire a team, and then had come from Braintree to Boston.</p> <p>George P. Gill testified that he lived in Stoughton, had served in the thirty-fifth regiment of Massachusetts Volunteers, and-had a claim in the office of the surgeon general of Massachusetts for a bounty from the United States; that on August 14, 1868, the defendant was in the shop of the witness, and asked if the witness had got his bounty, and he answered that he had not got it, but had received notice that it was ready for him; that on August 15, about six o’clock in the morning, the defendant was in the shop again, and asked how much of a job the witness had that day, and he answered that he was going to make four pairs of boots; that he gave the defendant no authority to draw his bounty; and that the signature in a book produced from the surgeon general’s office, to a receipt in his name for the check and discharge paper, was not written by him or by his authority.</p> <p>The Commonwealth, against the defendant’s objection, was then permitted to put in evidence the book containing the receipt, and introduce testimony tending to show that it was signed by the defendant with the name of George P. Gill, and to prove the defendant’s handwriting by signatures made by him at the time of his arrest in the proceedings preliminary to this indictment. The Commonwealth also proved that “ Gill had been reimbursed by the surgeon general.”</p> <p>The discharge paper was not produced at the trial, nor did it appear what were its contents or what was its value, except that Gill and Cutting spoke of it as a discharge from the military service of the United States.</p> <p>This was all the evidence introduced by the Commonwealth. The defendant offered no evidence, but requested the judge to rule as follows:</p> <p>“ 1. There is no evidence in this case from which the jury can infer that the check was the property of George P. Gill; and accordingly the defendant cannot be found guilty of larceny of the check.</p> <p>“2. There is no evidence that this check ever came to the possession of Gill; and accordingly, upon this indictment and evidence, the defendant cannot be found guilty of larceny of the check.</p> <p>113. The evidence of the Commonwealth does not sustain the charge of the indictment.</p> <p>“4. There is no evidence upon which the defendant can be convicted of anything more than the larceny of the discharge paper; and there is no evidence of any value of that discharge paper.</p> <p>“ 5. The defendant cannot be convicted of larceny of the discharge paper; because it appears that this -was given to him without any request or effort by him therefor.”</p> <p>“ The judge declined to give any of these instructions, and instead thereof ruled, as to the first and second prayers, that, if it appeared that the check was in the custody of the surgeon general on a naked trust for the benefit of Gill, the property was rightly alleged to be in Gill, and that the mere fact of the possession not having come to Gill was immaterial; as -to the third prayer, that the evidence was sufficient on which to convict of the charge in the indictment; as to the fourth prayer, that the Commonwealth need not offer direct evidence of the value of the discharge paper, but that the jury might, on the evidence, infer such value as they should find it to have; and he further instructed the jury that, if they should find the discharge paper to be of any value, they might return a genera' verdict of guilty, in case they found a larceny of that paper although they should find the defendant not guilty of larceny of the check; but that, if they found the discharge paper to have no value, then they should state that fact.</p> <p>“ The jury did not find the discharge paper of no value. Upon this point, they were instructed that the paper was of no value unless the Commonwealth proved it to be of some value.</p> <p>“As to the fifth prayer, the judge instructed the jury that, if the discharge was given to the defendant as an incident to the bounty for which he asked, and as a thing inseparable from it, they might convict of larceny of the discharge paper, even though the defendant had made no effort to obtain the discharge paper by itself.”</p> <p>The jury returned a general verdict of guilty; and the defendant alleged exceptions.</p>

Indictment for larceny of bank bills and a pocket-book, “ of the property, goods and chattels and moneys of one Bridget Dolan,” from her person.

<p>An indictment for receiving as stolen goods “ thirty yards of cloth,” and “ one coat,” sufficiently describes the nature of the goods; and is sustained by proof that they consisted ol “ one piece of cassimere " and “ one blue pilot cloth coat.”</p> <p>An Indictment, which avers that the defendant received on a specified day goods “ before then " stolen, may be sustained by proof of his receiving after the theft goods stolen on a later day.</p> <p>On the trial of a shopkeeper for receiving stolen goods, evidence of what kind of business he carried on at his shop is admissible, although it does not appear that the goods were ever in the shop.</p> <p>On a trial for receiving stolen goods, a witness for the Commonwealth testified, irresponsively to a question by the district attorney, that the defendant “had fighting dogs:" the defendant asked for no ruling upon this testimony; and the judge gave no special instructions upon it. Held, that the defendant had no ground of exception.</p>

Indictment for the crime against nature. At the trial in the superior court, Putnam, J., permitted a witness, who saw the clothes of the defendant at the time in question, to testify to spots and stains on them, without producing the clothes or showing any reason for not producing them ; and also to testify that he examined the boots of the defendant and footprints near the place where the crime was committed, and thought that the boots would fit the footprints and were of…

Indictment with two counts; the first charging that the defendant thrust an instrument into the pregnant womb of Elizabeth B. Blanchard with intent to procure a miscarriage, and in consequence thereof said Elizabeth died; and the second containing substantially the same averments as to the use and purpose of the use of an instrument on the body of said Elizabeth, but omitting to aver her death.

Indictment on the Gen. Sts. c. 164, § 10, averring that the defendant, on September 1, 1869, at Boston, “ was arrested by Thomas B. Ford, a police officer of said city of Boston, under and by virtue of a warrant issued by a magistrate, to wit, by the municipal court of the city of Boston, holden at said Boston for the transaction of criminal business, against said Doherty for an alleged offence against the laws of said Commonwealth, to wit, the offence of larceny, by the…

<p>Indictment charging that the defendant on March 6,1869, at Boston, “ with force- and arms did unlawfully offer for sale and sell to one Gilman Currier, for the sum of eighteen cents, a large quantity, that is to say, two quarts, of adulterated milk, that is to say, a certain quantity, to wit, two quarts of milk, to which a certain quantity, to wit, one pint, of water had been added.”</p> <p>In the superior court, before the jury were empanelled, Devens, J., overruled a motion of the defendant to quash the indictment for want of an allegation that the defendant sold the milk knowing it to be adulterated; and ruled “ that .the indictment was good under the St. of 1864, c. 122, § 4, and that it should be tried without regard to the provisions of the St. of 1868, V. 263 ; ” and at the trial he refused a request of the defendant for an instruction to the jury “that the Commonwealth must aver and prove that the defendant sold the milk knowing it to be adulterated; ” and instructed them that, if the sale was proved, “the only question in the case to be determined by them was, whether the milk was adulterated when sold.” The defendant was found guilty, and alleged exceptions.</p>

<p>A complaint “ in behalf of the Commonwealth of Massachusetts ” “to the justices Of the municipal court of the city of Boston, holden at said Boston, for the transaction of criminal business, within and for the county of Suffolk,” that J. S., on July 17,1869, “ at Boston aforesaid, did keep intoxicating liquor with intent to sell the same in this Commonwealth, not being authorized to sell the same in said Commonwealth for any purpose under the provisions of chapter 415 of the acts of the year 1869 of this Commonwealth, or by any legal authority whatever, against the peace of said Commonwealth and the form of the statute in such case made and provided,” and certified by the signature of “ A. B., Clerk,” under the caption of “ Suffolk, to wit,” as having been sworn to “ before said court,” is not void, on appeal to the superior cour , for want of sufficient averments of venue or jurisdiction, or for defect in the certificate of the complainant’»</p>

Complaint on the St. of 1869, c. 415, § 44, by William Mooney and Benjamin H. Linscott, “to the justices of the municipal court of the city of Boston, holden at said Boston for the transaction of criminal business within and for said county,” for a warrant of search for certain intoxicating liquors.

Complaint on the St. of 1869, c. 415, to the municipal court of the city of Boston, against the claimant in the case next preceding this, for keeping intoxicating liquors for unlawful sale.

Complaint on the St. of 1869, c. 415, to a trial justice in Barnstable, for an unlawful sale of intoxicating liquor to Toby Scoby.

<p>Complaint on the St. of 1869, c. 415, § 44, to the municipal court of the city of Boston, for a warrant of search for certain intoxicating liquors alleged to be kept for unlawful sale by Walter H. Foster and Joseph Foster. On the warrant, seventy-eight gallons of whiskey, ninety-five gallons of ale, and various quantities of other intoxicating liquors, and the vessels of various kinds in which they were contained, were seized; and Walter H. Foster and Joseph Foster were summoned as claimants. They appeared accordingly in the superior court, and made their claim to the property seized; and the proceedings against it were quashed on their motion for formal defects in the complaint and warrant. Thereupon they further moved for an order for the return of the liquors; but Pitman, J., overruled this motion, and they alleged exceptions.</p>

<p>Petition, filed November 15, 1869, for a writ of mandamus to be directed to the justices of the municipal court of the city of Boston for the transaction of criminal business.</p> <p>The petition alleged that on August 2,1869, Harrison D. Littlefield presented to said justices his complaint under oath, “ setting forth that he believed that gaming apparatus and implements were used, kept and provided to be used, in unlawful gaming, in certain rooms resorted to for the purpose of unlawful gaming, in a certain building situated and numbered 9 in Howard Street, in said Boston, that is to say, in the rooms in the second story of said building, and also that furniture, fixtures and personal property were contained therein, and might be found therein at a time when persons were there found playing at unlawful games, which said rooms were occupied by some person whose name was to said complainant unknown, and praying for a warrant to search therefor and to seize the same; that upon this complaint a warrant was duly issued, addressed to the sheriff of Suffolk, his deputies, and the constables and police officers of said city of Boston, and the constable of the Commonwealth, or either of his deputies, commanding them to enter said premises and search for and seize said gaming apparatus and implements, and if the same, or any part thereof, should be found on such search, to bring said apparatus and implements so found, together with the body of the person or persons in whose possession found, if they might be found in said city, before said court, to be disposed of and dealt with as to law and justice should appertain, and in like manner to search for and seize all the furniture, fixtures and personal property found in the rooms described, at the time when any persons were there found playing at any unlawful game, and to bring said furniture, fixtures and personal property before said court, to be disposed of and dealt with as to law and justice should appertain; that said warrant was duly committed to said Littlefield, a deputy of the constable of the Commonwealth, for service, who duly made return thereon, that he on said second day of August entered and searched said premises, and there found and seized certain implements of unlawfu, gaming, and certain personal property and furniture, as particularly set forth in his said return, and that be had the same before the court, and prayed for an order to dispose of the same, legally, for the reason that at the time of said seizure an unlawful game was being played for money, and said game was stopped by him; that afterwards said Littlefield made formal application to said court by motion that said gaming apparatus and implements so found and seized be burned or otherwise destroyed by the constable of the Commonwealth, and that a decree of condemnation might issue according to law, as authorized in the St. of 1869, c. 364, § 3, against the furniture and personal property so found and seized; and that said motions, having been presented to the said court in writing, and placed on file with the records of said court, were thereupon disallowed by said court, for the reason that said court has no jurisdiction in the premises.”</p> <p>It further alleged “ that by the Gen. Sts. c. 170, §§ 1-5,* and by the St. of 1869, c. 364,* the justices of the said court have jurisdiction in the premises; and that if they fail to exercise the same there will be a manifest failure of justice in the administration of the criminal laws of the Commonwealth;” and therefore the petitioner prayed that a writ of mandamus might be issued, directed to said justices, “ requiring them to proceed and take jurisdiction of the said matters so brought before them, and to consider and determine whether or not the said gaming im plements so found and seized should be burned or otherwise destroyed, under the direction of said court; and whether or not a decree of condemnation should issue against said furniture and personal property so found and seized, and the same be adjudged forfeit and sold under the direction of said court.”</p> <p>The justices of the municipal court of the city of Boston answered “ that they admit the truth of the facts stated in said petition, and of all and singular the matters and things therein alleged, except as follows, to wit: they do not admit that jurisdiction of the said case is conferred upon them by the Gen. Sts. c. 170, §§ 1-5, or by the St. of 1869, c. 364, as alleged in said petition, or by any other provision of law, or that they have any jurisdiction of the said case;” and they prayed for the judgment of this court upon the question whether they had such jurisdiction, and submitted themselves to its order and direction.</p> <p>The case was reserved by the chief justice on the petition and answer for the consideration of the full court, and was submitted to their determination on a written argument filed by the attorney general, and a copy filed by the respondents of their opinion, rendered by Hurd, J., in the refusal of the complainant’s motions. The complaint, searchwarrant, officer’s return and motions are printed in the margin.*</p>

<p>& mechanics’ lien under the Gen. Sts. c. 150, has priority over a mortgage executed after the making of the contract under which the lien is claimed.</p>

Writ of entry to recover a parcel of land in Lowell. At the trial in the superior court, before Rockwell, J., it appeared that Patrick Flood, being seised in fee of the demanded premises, mortgaged them in 1854 to Joshua Bennett, and in 1859 died intestate; that his sons, John Flood, (the tenant,) and Peter Flood, were his heirs; and that Peter Flood paid Bennett the amount due on the mortgage, took an assignment thereof to himself in 1860, made an entry to foreclose in…

<p>An entry to foreclose a mortgage is not waived by the mortgagee’s bringing a writ of entry against a tenant at will of the mortgagor, and obtaining judgment for possession, but not seeking conditional judgment, nor causing the writ of possession to be served until after three years have elapsed from the recording of the certificate of entry.</p>

Replevin of a horse. At the trial in the superior court, before Rockwell, J., without a jury, it appeared that the horse was mortgaged in April 1868 by Asa F. L. Norris to the plaintiff, and was distrained in July 1868 by the defendant, acting under a warrant from the collector of taxes of Woburn, for the taxes assessed on Norris, as an inhabitant of Woburn, for the years 1866 and 1867.

Tort for the conversion of tools and machinery alleged to be property of the plaintiff, “ as he is trustee of Charles H. Dalton, Edward Atkinson, Nathaniel Farwell and Charles P. Talbot.” At the trial in the superior court, before Rockwell, J., it appeared that the tools and machinery were attached by the defendant, a deputy sheriff, as the individual property of the plaintiff, on a writ against him; that they were bought and held by the plaintiff under a wnritten agreement…

<p>A letter from A. to B., saying “ I intend to settle up our affairs and give up your deeds that you intrusted me with,” is not sufficient to establish a trust in B.'s favor in land which had been conveyed to A. by B. and others.</p> <p>Oral evidence that a conveyance of land by a quitclaim deed in the usual form from A., B. and C., tenants in common thereof, to D., the other tenant in common, was made in pursuance of an agreement between the parties, that, in consideration of certain payments made and to be made by A., the land should he held by D. in trust for A., is admissible and sufficient, even after the death of all the tenants in common, to establish an implied trust in A.’s favor in the shares conveyed by B. and C. put not in the share conveyed by A. himself, nor in the share of D.</p>

<p>Bill in equity by the executors of the will of Abijah Thompson, and the trustees under said will, praying for instructions. The material facts, as they appeared by the bill and answer, on which the case was reserved for the determination of the full court, were as follows :</p> <p>The testator in 1866 made his will, by the fifth clause of which he gave ¡§15.000 to trustees in trust to pay the net income thereof to his daughter, Julia Ann Doyle, during her life; upon her death the income to go to her son William B. Doyle, during his life; in case, however, that his daughter should die before her son William became of age, the trustees to expend only so much of the net income as should be necessary for his support and education, and to retain the balance until he became of age. If the daughter should die without leaving issue, or after her decease her son should die without leaving issue, he gave the $15,000 over. The clause then continued thus: “ In ease I shall not during my life procure a residence for my daughter Julia A.nn Doyle, I direct my executors, out of my estate, to procure, either by purchase or by building, a suitable residence for my said daughter, at an expense not exceeding $6000, and to hold the same in trust for her and her said son during their lives; and during the life of my said daughter to pay the taxes upon said property, whether procured by me or by my executors; and also all other expenses incident to said properly, out of my estate. Upon the decease of both the said Julia Ann Doyle and her said son, I give said property to” other descendants named. By the eighth clause of his will, he gave to his daughter Julia and her husband, John B. Doyle, “ and to the survivor of them, in case either of them shall die during my life^the sum of $5000.”</p> <p>In 1867 the testator executed a first codicil to his will, by which he made devises and bequests to his grandchildren, additional to those in his will, and by the seventh clause gave $5000 to the trustees of Warren Academy, in Woburn. Subsequently, Julia Ann Doyle having deceased, leaving her son William her only surviving issue, the testator executed a second codicil to his will, reciting the making of his will and first codicil, his desire “ to alter in some respects the provisions contained in the eighth item of said will and the seventh item of said codicil,” and “ expressly confirming and republishing said will and codicil in all respects, saving and excepting so far as the same are altered by the provisions herein contained.” This codicil contained two clauses: the first recited the gift of $5000 to Julia Ann Doyle and her husband, or the survivor of them, by the eighth clause of the will, and the death of said Julia Ann since the making of the will, and “ therefore ” gave to John B. Doyle the sum of $15,000 in addition to the said $5000. The second clause gave a bequest to the trustees of the Warren Academy", additional to that given in the seventh clause of the first codicil.</p> <p>The testator died in 1868, never having procured a residence for his daughter, and left William B. Doyle, still a minor, and other grandchildren him surviving. The question submitted to the court was, whether the gift of $6000 in the fifth clause of the will had lapsed by the death of Julia Ann Doyle in the lifetime of the testator.</p>

<p>Under the Gen. Sts. c. 89, § 3, an unrecorded deed is not valid after the death of the grantor, as against one holding by a recorded deed from the grantor’s heir, without notice of the former deed.</p>

<p>An officer, in executing a writ of possession, is justified in removing without force from the premises the wife of the person against whom the judgment was rendered on which the writ was issued, although she claims title in her own right, if her claim is invalid.</p>

<p>Bill in equity by the heirs of Phelps Brooks against Thomas F. Tarbell, Samuel Brooks and "Walter Fessenden. The bill alleged that Samuel Brooks, Senior, owning parcels of land in Townsend, and in Brooklyn in the state of New Hampshire, conveyed them by indenture, dated September 27, 1847, to Tarbell, to hold in trust for the support of the grantor during his life, then for the support of Phelps Brooks and his wife during their lives, and after their decease to convey the land to the heirs of Phelps Brooks in fee, and Tarbell in the indenture accepted the trusts and covenanted to perform them ; that Samuel Brooks, Senior, died August 9, 1848, leaving, as his heirs, his sons Phelps Brooks, Abner Brooks and Samuel Brooks, (the defendant,) and the children of a deceased son Benjamin; that in September 1849 Abner Brooks brought a writ of entry against Tarbell to recover an undivided fourth of the parcel of land in Townsend, claiming by descent from Samuel Brooks, Senior, and in September Samuel Brooks, the defendant, and others of the heirs of Samuel Brooks, Senior, brought a writ of entry against Tarbell to recover other undivided portions of said parcel; that Tarbell in both these actions was defaulted, and judgments were rendered therein, execution issued and the demandants put in possession; that the demandants afterwards conveyed all their interest to the defendants in the present suit, Samuel Brooks and Walter Fessenden ; that the said judgments were fraudulently obtained with the collusion of Tarbell and the other tenants; and that Phelps Brooks died in 1865; and the bill prayed that Tarbell and the other defendants might be ordered to convey the land to the plaintiffs.</p> <p>The answer admitted the making of the indenture and deeds, and the bringing of the writs of entry and proceedings thereon, as alleged in the bill, but alleged that Samuel Brooks, Senior, was insane at the time of making the indenture ; that its execution was procured by the fraud and undue influence of Phelps Brooks; that Tarbell never took possession or control of the land, and never accepted said trust or acted in the capacity of trustee in any manner; and that the indenture was void, and Tarbell was never seised of the estate. The answer also denied that the judgments in the writs of entry were obtained by collusion, and alleged that Tarbell entered faithfully upon the defence of the actions, retained counsel, laid the case fairly before them, and was advised by them that he could not successfully defend said actions ; and that the judgments were recovered in good faith.</p> <p>On these pleadings, twelve issues were framed for the jury by Foster, J.; the first, as to the capacity of Samuel Brooks, Senior, at the time of the execution of the trust deed ; the second, as to whether Phelps Brooks fraudulently and by undue influence induced his father to execute the indenture ; the third, as to whether the judgments were recovered in good faith without collusion ; and the other nine, as to whether the conveyances made by the demandants in the writs of entry after they were put in possession, and through which the defendants Samuel Brooks and Walter Fessenden claimed, were made and received for a valuable consideration and in good faith.</p> <p>At the trial, before Morton, J., the plaintiffs, before the case was opened to the jury, objected to any but the first two issues being tried, and asked the judge to reform the issues, and reject those of them that were unnecessary and improper; but the judge declined to reform them, and the trial proceeded upon all the twelve.</p> <p>Tarbell was called by the defendants pa a witness on the third issue, to show that the judgments were not recovered by collusion, and was allowed, against the plaintiffs’ objection, to testify that he retained George F. Farley, a counsellor of law, in the writs of entry against him; “ that ho stated to Farley that he went to Samuel Brooks, Senior, a tew days after the indenture was made, and he did not seem tc know him or remember anything about the indenture, and asked him what he had to do with his estate; that be told Farley that when the indenture was signed they had to steady Samuel Brooks’s arm; that Phelps Brooks got the pen and put it into his hand; that he (the witness) kept from Parley no information, and himself honestly believed he had no defence to the actions; that Farley wished to see Phelps Brooks, and he took him to him, and that Phelps Brooks told Farley that ‘ he got up the indenture and influenced his father to sign it, his father was not competent, was forgetful and had not knowledge of what he was doing, he had once before got Squire Russell up to make the deed, and Russell thought his father was not competent, and he was not willing to defend;’ and that Farley advised Tarbell that he had no defence to the writs of entry, and he acted on that advice and was defaulted.”</p> <p>The defendants also called Edward G. Russell as a witness, who was allowed, against the plaintiffs’ objection, to testify u that in September 1847 Phelps Brooks came to the office of his father, who was a lawyer, and wanted him to go up and make out a trust deed for Samuel Brooks to sign, which would be a trust deed for the express benefit of Phelps Brooks ; that a day or two after he went with his father to Samuel Brooks; that Phelps and Samuel Brooks were both present; that his father held a conversation with Samuel Brooks to ascertain if he was willing to make a trust deed, and, after talking some time, his father turned towards Phelps Brooks and said, in the hearing of Samuel Brooks, he did not think Samuel Brooks was in a fit state of mind or competent to make any paper; and that Phelps Brooks then approached the witness’s father, gave him a nudge and told him to go ahead and all would be right, and his father in an indignant manner refused.”</p> <p>The jury found on all the issues in favor of the defendants; and the plaintiffs alleged exceptions.</p>

<p>An action may be maintained by the buyer of a patent right on false representations of the seller, which induced the purchase, as to what was covered by the patent, or what was not covered by an earlier patent; although by searching the records of the patent office the buyer might have discovered the fraud.</p> <p>An action for deceit in the sale of patent rights may be maintained in a state court, although its determination involves collaterally the construction and validity of the letters patent.</p>

<p>Tort. The declaration alleged that the “defendant represented that he was the owner of one third share of the Winthrop Petroleum Mining Company,” and being desirous of selling his interest in said company, contriving and intending to deceive, defraud and injure the plaintiff, falsely and fraudulently made certain specified representations as to the land and property of the company; that the plaintiff, confiding in these representations, paid the defendant §1000 for “ the said one third share” of the company; and that said representations were false and “ said one third share ” of no value to the plaintiff, as the defendant well knew. The answer was a general denial.</p> <p>At the trial in the superior court, before Wilkinson, J., the plaintiff testified that the defendant made the representations alleged ; that he asked the defendant “ if he knew these things were so,” and the defendant said “ Yes, and he should not tell the plaintiff so, if he did not know it;” and that he paid the defendant $1000 for one third of a share. The defendant testified that he gave the $1000 to Daniel F. Fitz, the treasurer of the company, and received from him a voucher that the plaintiff was entitled to one third of an original share from the company, which voucher he gave to the plaintiff; and that he did not sell to the plaintiff any part of his own share in the company. He also denied making the alleged representations. The defendant also offered evidence tending to show that at the time he was alleged to have made the false representations he did not know, of his own knowledge, the condition and situation of the land of the company; that he had never been to the land ; and that all the knowledge he had of it was derived from communications made to him by third persons, whose statements to him, in reference to the subject, he also offered in evidence. The plaintiff objected, on the ground that the evidence offered was immaterial to the issue, and stated “ that he claimed to recover, so far as to representations in regard to the land, only upon the ground that the defendant’s representations as to the condition of the land were false in fact and that he made them as of his own knowledge ; ” and the plaintiff’s counsel said that “ he should not claim to the jury that, as to that class of representations, the defendant had personal knowledge of the condition of the land.” Thereupon the judge refused to admit the evidence.</p> <p>The defendant requested the judge to instruct the jury, 1. that, “in order for the plaintiff to recover under the pleadings, he must prove, and the burden of proof was upon him affirmatively to show, that the defendant sold the plaintiff one third of the defendant’s share;” 2. that “if, upon all the evidence, the burden upon this point being on the plaintiff, the jury were not reasonably convinced that the defendant sold to the plaintiff one third part of the defendant’s share, then the plaintiff could not recover;” and 3. that “ if the defendant only received the $1000 from the plaintiff to give to Fitz, the treasurer, and the defendant did give the $1000 to Fitz, and Fitz gave the plaintiff a receipt for the money, and a voucher, as the treasurer, that ho was entitled to one third of an original share from the company then this action could not be maintained.”</p> <p>The judge declined to rule as requested in the first and second prayers; but gave the instructions asked for in the third prayer, and further instructed the jury that, “ unless, from all the evidence, they were satisfied that the one third share sold was-part of the defendant’s share, or was so represented to be by the defendant at the time of sale, and so understood by the plaintiff, the action could not be maintained.” The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Tort for carelessly and unlawfully selling to the plaintiff, a child eight years old, two pounds of gunpowder, which the plaintiff fired off and was thereby injured. After this court had overruled the demurrer to the declaration, as reported 98 Mass. 567, the defendants filed an answer, denying each and every allegation in the declaration, and alleging that, if the sale was made to the plaintiff, it was made with the- knowledge and assent of the plaintiff’s father.

Two actions of tort on the Gen. Sts. c. 44, § 22, for injuries occasioned to the female plaintiffs by a defect in a highway which the defendants were bound to keep in repair. These cases were tried together in this court, and'verdicts found for the plaintiffs, before Morton, J., who overruled a request of the defendants for a ruling that on the evidence the plaintiffs failed to use due care at the time of the accident, and submitted that question to the jury.

<p>In at action against a railroad corporation for a personal injury, it appeared that the plaintiff was a passenger on the defendants’ cars, and alighted from the cars at night, at a station of the defendants, on one of two platforms extending along each side of the track to a highway, (which, as the plaintiff knew, crossed the railroad,) and having a step at the end next the highway; that, instead of walking along the platform, he voluntarily stepped from it, with the intention of going obliquely' across the track to the highway, and w hen he stepped off fell into a cattle-guard dug across the track, and was injured; that the n.ght was so dark that he felt with his feet to find the edge of the platform; and that he did nothing to ascertain what would be found on stepping from the platform. Ildd, that he was not in the exercise of due care, and could not recover.</p>

Bill in equity, praying that the defendants might be' re strained from constructing a causeway on the plaintiff’s land, and be ordered to remove earth and stones which they had brought thereon. An injunction was granted, but afterwards dissolved on the defendants’ giving bond. The defendants moved that issues might be framed for a jury; but afterwards the parties agreed that the demand for a jury should be waived, and the case tried by the court.

<p>In an action for breaking and entering the plaintiff’s dwelling-house and using abusive language and insulting his wife in his absence, she is not a competent witness under the St. of 1865, c. 207, § 2, to the defendants’ acta.</p>

Tort for the conversion of household furniture. At the trial in the superior court, before Putnam, J., the plaintiff offered evidence tending to prove that on March 6,1868, he, being then the owner of the furniture, delivered it to George F. Clark at the house of the latter in Charlestown, under a written agreement signed by Clark, which contained an acknowledgment that he had “leased and received” the furniture from the plaintiff, to be paid for in payments of $10 a week,…

<p>Replevin of household furniture. The answer denied that the property in the furniture was in the plaintiff, and that he had any right of possession at the date of his writ; and alleged that the furniture was then rightfully in the possession of the defendant.</p> <p>At the trial in the superior court, before Putnam, J., both parties claimed title to the furniture. The plaintiff contended that he owned it and “ let it to the defendant, at a monthly rent to continue until he demanded it back.” The defendant contended that he himself was the owner of it.</p> <p>The judge instructed the jury, that, “ to entitle the plaintiff to recover, he must satisfy them that he was the owner of the furniture and was entitled to the possession of it before action brought, by having demanded it back from the defendant, he having admitted (assuming him to have been the owner) that he let it to the defendant to retain it till he demanded it back; and that, if they were not satisfied of both of these propositions heir verdict must be for the defendant.” No exception was taken to these instructions.</p> <p>The jury returned a verdict for the defendant, and, having been asked by the judge, at the request of the plaintiff, on what ground they found for the defendant, answered that “ they found for him on the ground that no demand had ever been made upon him for the furniture, and that they did not determine the question of ownership as between the parties.”</p> <p>The judge ordered a return of the furniture, to which order the plaintiff excepted.</p>

<p>Tort for the conversion of some whiskey. At the trial in the superior court, before Wilkinson, J., the plaintiff introduced evidence tending to show that the whiskey was sent by the plaintiff to the defendant for him to examine it, under an agreement that, if it did not prove satisfactory, he would return it, but, if it suited him, be was to pay cash for it, and, until paid for, it should remain the property ol the plaintiff; and that the defendant refused on demand to pay the price or return the whiskey, and concealed it.</p> <p>The defendant requested the judge to rule that the evidence would not support the action ; but he declined so to rule, and instructed the jury that, if they found that there was no sale of the whiskey by the plaintiff to the defendant, the action could be maintained. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>In an action by the indorsee against the makers of a promissory note, an attorney at law, called as a witness by the defendants, was allowed, against the objection of the plaintiff and of himself, to testify that he received a letter from the payee of the note, containing a claim for intoxicating liquors against the defendants; that he advised his correspondent to get a promissory note on time signed by the defendants, and to indorse it, for value, before it was due, to an innocent third person; and that he afterwards received the note in suit from the plaintiff. The plaintiff also produced at the request of the defendants, but against his own objection, the letter to the attorney, which stated that the defendants owed the payee a running account for intoxicating liquors furnished to them ia Wisconsin. Held, that the admission of the attorney’s testimony and of the letter was a violation of the rule excluding privileged communications between attorney and client.</p>

<p>Contract for $800 money had and received. The answer alleged that the defendants, who were attorneys at law, received the sum of $2500 in settlement of a suit brought by the plaintiff against the Nashua & Lowell Railroad Corporation, paid $1700 thereof to the plaintiff and retained $800,— $500 for their own fees and disbursements, and $300 for the fees of Theodore H. Sweetser. The defendants also filed a declaration in set-off for said fees and disbursements, the first item of which was $100 for a retainer.</p> <p>It appeared by the records of the superior court that the case was tried in that court, and a verdict returned for the defendants at December term 1868, to wit, in January 1869; that exceptions were then presented by the plaintiff, and not allowed by the presiding judge, and that the case was continued to March term 1869, when judgment was rendered upon the verdict and execution issued. At January term 1869 the plaintiff presented to this court a petition, under the Gen. Sts. c. 115, § 11, to establish the truth of the exceptions; and the defendants moved to dismiss the petition as presented too late; but the court appointed a commissioner to take the evidence. The defendants at January term 1870 insisted on their motion to dismiss the petition.</p>

<p>Tort for injuries alleged to have been occasioned to the plaintiff by a defect in a highway, which the declaration alleged that the defendants were bound to keep in repair, but negligently suffered to be out of repair, whereby the plaintiff, travelling thereon and using due care, was hurt. The answer merely denied each and every allegation of the declaration. Trial in the superior court, at June term 1869, before Putnam, J., who, after a verdict for the plaintiff, allowed a bill of exceptions.</p> <p>The dockets of the superior court contained the following entries in the case: Of June term 1869 — “July 3, verdict for plaintiff $2250; July 7, motion for new trial; July 7, exceptions filed by agreement.” Of September term 1869 — “June, verdict for plaintiff; motion for new trial; exceptions filed by agreement, and allowed. Law.” September term was adjourned without day on the 15th of October. The certificate of the presiding judge, allowing the exceptions, stated that the intervening delay had been necessary for that purpose; and bore no date. The exceptions allowed were entered on the law docket of this court at Boston on the 11th of November.</p> <p>The defendants addressed a petition to this court “ within and for the county of Middlesex,” alleging that their bill of exceptions, as originally filed and presented to the superior court, was in conformity with the truth, and should have been allowed; but that it was materially altered by the presiding judge in certain particulars, which they specified ; and praying for leave to establish the truth of their exceptions as originally presented This petition was entered by the defendants on the 2d of November in the clerk’s office of this court for the county of Middlesex, during October term of this court in that county; and on the 12th of January, during the second week of the present term, in the clerk’s office of this court for the Commonwealth in Boston. The defendants’ counsel made affidavit that a copy of the petition was served on the plaintiff’s counsel on the 2d of November.</p> <p>The plaintiff now moved to dismiss the exceptions allowed, and also the petition to establish the truth of the exceptions as originally presented.</p>

Contract to recover a tax assessed by persons acting as assessors of the plaintiff town on the defendant for the year 1866; submitted to the judgment of the full court on a statement of facts in which it was agreed that, if the fact was competent and material, the defendant could prove that, in electing these persons assessors by ballot at the annual town meeting of that year, the check-list was not used. The case is stated in the opinion.

<p>Petition by an inhabitant of Medford for a writ of certiorari to reverse the refusal of the respondents, on appeal from the assessors of Medford, to abate a tax assessed there in 1868 on the petitioner’s income; heard by Morton, J., and reserved for the determination of the full court on this case:</p> <p>The petitioner’s claim for an abatement was submitted to the respondents, and by them refused, on the following statement:</p> <p>“ It is agreed that the petitioner is a resident of said Medford, and the owner of real and personal estate therein ; that his place of business is in the city of Boston, where, as a member of the firm of Day, Wilcox & Company, he is engaged in trade as a leather dealer, in the ordinary course of such trade as a merchant keeping a stock in trade and selling therefrom, and is engaged in no other profession, trade or employment whatever; that said firm were duly assessed and taxed for the said year in Boston, where their stock in trade and business is and was, and r ave paid said tax as assessed by the assessors of said city; that the petitioner, as required by law, duly made a return to the assessors of Medford of all his real and personal estate taxable therein, verified by his oath, and, in said return or schedule furnished him in blank to fill, he added, after the printed words ‘ Income from profession, trade or employment, exceeding $1000,’ the words, ‘ None that is taxable in Medford; ’ but, on being examined by the assessors, or one of them, as to his income exceeding $1000, he informed them that the amount was $4399.14, and added said figures to his said statement at the assessor’s request, at the same time stating that said income was wholly derived from his stock in trade taxable in Boston, and claiming that it was not therefore properly taxable; that said assessors, understanding this claim, did assess the petitioner on said income at the same rate per cent, other property was assessed, to wit, the sum of $54.10; that the petitioner duly applied to said assessors for an abatement of said sum as an overassessment; that an abatement was refused; that the petitioner duly complained to the county commissioners; that the petitioner is satisfied with the assessment of the tax upon0him in every other particular than as above; that said income was wholly derived from the petitioner’s said business as a merchant as above stated, and in no other way ; and that the only question submitted is the legal right, under the statute, to assess said income so derived.”</p>

Action on the Gen. Sts. c. 137, for possession of a tenement in Cambridge.

<p>A recognizance under the Gen. Sts. c. 124, § 10, is avoided by the discharge of the debtoi by a qualified magistrate after due proceedings begun within thirty days after the arrest* notwithstanding another application more than seven days previously, during the thirty days, to another magistrate, by the debtor, and his failure to appear at the time and place thereupon fixed for his examination.</p>

<p>Contract with an alternative count in tort, on the Gen. Sts. c. 58, § 48, to enforce personal liability of the directors of a mutual fire insurance company for the amount of an unsatisfied execution on a judgment recovered by the plaintiff against the corporation. Writ dated February 24, 1868.</p> <p>At the trial in the superior court, before Putnam, J., it was proved that on June 5, 1867, the defendants were duly chosen directors of the Mutual Safety Fire Insurance Company in South Reading, which was incorporated by the St. of 1853, c. 46; that in May 1856 the then directors divided the property insured by tho corporation into two classes, namely, the First Class, and the General Class; that on October 14, 1861, “all the business of the General Class was closed, and all the policies were can-celled, and on June 14,1862, all the business of the First Class was closed and al. its policies were cancelled, and since that time all the policies issued by the company had been in but one class; ” that on September 23, 1867, the plaintiff recovered judgment against the corporation on the following promissory note: “ South Reading, March 30, 1866. Value received of Edward A. Upton, the Mutual Safety Fire Insurance Company General Class promise to pay him or order Nine Hundred Dollars in four months from date. Edward Mansfield, Treasurer of said Company; ” and that on December 9, 1867, the execution, which was issued against the corporation October 10,1867, on this judgment, was returned in no part satisfied.</p> <p>“ The plaintiff testified that, immediately after the rendition of said judgment, he demanded.payment of the same from the president, treasurer, secretary and several of the directors of the corporation, which was refused; that on or about October 10, 1867, he demanded of them that they should order and make an assessment and deliver the same to the treasurer for collection, for the purpose of paying said judgment, which they refused to do.” It was not proved, nor contended, “ that the corporation, since the time when the defendants were chosen directors, had had any property or assets belonging to the General Class, or any notes in said class, which could have been assessed; ” but it appeared that they had other premium and deposit notes, and among them some, exceeding in amount the amount of the plaintiff’s judgment, which had been given before March 30,1866 ; and it further appeared that the corporation had no property of any kind except these other premium and deposit notes.</p> <p>On the cross-examination of the plaintiff, the defendants, against his objection, were permitted to put questions with a view to show that the note on which ho recovered his judgment was given in renewal of other notes which had been given by the corporation for a loss by fire, prior to 1860, of property insured in the General Class; and thereupon the plaintiff consented to a verdict for the defendants, and alleged exceptions.</p>

<p>Contract, brought originally before Levi Sherwin, a justice of the peace for Middlesex, who gave judgment for the plaintiff, after overruling a motion filed by the defendant to dismiss the action on the ground that “ the said Levi Sherwin, before whom said action is returned, commenced said action, or has been concerned in the institution of said action, and is not competent on that account to try it.” The defendant appealed.</p> <p>On the appeal, in the superior court, before Putnam, 5., it was agreed by the parties that, on December 21,1867, a deputy of the sheriff of Middlesex, having received for service the writ, which was dated on that day, observed that it was made returnable before Sherwin on December 23, and consulted with him concerning said return day, “ and he, the said justice, thereupon altered the return day, and made the writ returnable before himself on December 28;” that the writ was served, thus altered, and was entered before said justice on December 28; and that the fact of this alteration was the ground of the plaintiff’s motion. On these facts, the judge ordered that the action be dismissed ; and the plaintiff alleged exceptions.</p>

Contract for the price of flour sold to the defendant by the plaintiff.

Beplevin of household furniture. Writ dated July 15, 1869. The case was submitted to the judgment of the court on a statement of facts in which it was agreed that the defendant, who kept a boarding-house, gave the plaintiff, on May 5, 1868, a mortgage of all his household furniture, including the articles replevied in this action; that the condition of the mortgage was broken; and that the plaintiff was entitled to recover, unless the following facts constituted a good…

<p>Contract on a promissory note, dated May 8, 1865, and signed by the defendants, Asá.F. Mason and Eliza M. Mason, his wife, promising jointly to pay to Leonard Morse or order $300 in three years, and indorsed in blank by the payee. Writ dated May 16,1868. The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon a statement of facts agreed, the substance of which appears in the opinion.</p>

Conteact for money had and received by the defendant to the plaintiff’s use. Writ dated December 6,1867.

<p>Contract on a promissory note made by James M. Wood, one of the defendants, under date of July 25, 1866, for $>400 payable, with interest, four months from date, to Henry W. Dresser, the other defendant, or his order, and indorsed in blank by Dresser. Writ dated March 15, 1867. Trial, and verdict for the plaintiff, in the superior court, before Rockwell, J., who allowed a bill of exceptions of which the following is the material part:</p> <p>“ Dresser did not defend the action, but was defaulted at the first term, and died after said first term and before the trial, Wood defended the action, and, being a witness at the trial, called by his counsel, admitted that the signature to the note was his, but offered to prove, by his own testimony, that the words, ‘ with interest,’ were added to the note by Dresser after it was signed and delivered to Dresser and without the consent or knowledge of Wood, and that the note, including the words so added, was in the handwriting of Dresser. To this testimony the plaintiff’s counsel objected, and the judge excluded the evidence and refused to admit the testimony thus offered, and to these rulings Wood excepted.”</p>

<p>On the trial of an action on a promissory note, in which all the evidence was addressed to the issue whether the note was a forgery, and no other issue was directly raised or investigated, the judge refused as inapplicable a request of the defendant for instructions to the jury on the measure of damages in event that they should be satisfied that the note was genuine but given for too large a sum by fraud or mistake. Held) that the defendant had no ground of exceptions.</p> <p>When on a trial the credibility of a witness is sought to be impeached by evidence of hi* reputation for truth and veracity, it is within the discretion of the presiding judge to require the impeaching witnesses to be first asked whether they know the reputation of the witness in that respect.</p>

Contract by John Mather, Thomas Mather and Thomas Berry, the grantees named in a deed of Joshua Mather, dated June 20,1865, against the executor of his will, on a covenant in the deed for the payment of §15,000 to the plaintiffs. Writ dated October 1, 1867.

Libel filed in September 1869, for a divorce from the bond of matrimony for the cause of the adultery'of the libellee; heard by Ames, J., who reported for the determination of the full court the case which is stated in the opinion.

Libel filed October 9, 1869, by a resident of Charlestown, for a divorce from the bond of matrimony for the cause of adultery alleged to have been committed at Springfield in this Commonwealth, San Francisco in California, and Hartford in Connecticut, “ on September 15,1867, and at other times since the marriage,” by the libellee, who was described in the libel as commorant at said Hartford, and, after due service of notice on her was defaulted.

<p>The requirement of the Gen. Sts. c. 107, § 12, that, to give jurisdiction in certain cases of application for divorce, the parties must have “ lived together as husband and wife ” in this Commonwealth, means that they must have had a domicil here.</p> <p>In inhabitant of another state does not acquire a domicil in this Commonwealth by merely coming here to seek employment, with the intention of residing here only if he shall find it.</p>

<p>Libel filed at April term 1868, for a divorce from the bond of matrimony for the cause of desertion continued for five consecutive years; tried at April term 1869, before Morton, J., and reported as follows for the determination of the full court:</p> <p>“ It appeared in evidence that the parties were married in October 1850, and lived together at Charlestown, and separated twelve years ago. After the separation, the libellant, being destitute, called upon the overseers of the poor for aid, who called upon the libellee; and thereupon the libellee allowed his wife seven dollars per month for her support, for two years, when the parties came together again, and continued to live together for a short time, when they separated again, and the libellee allowed his wife nine dollars per month, which sum was afterwards increased to ten dollars per month,'and furnished some wood and coal and other supplies. The parties came together again ; but in 1861 they separated, the libellee alleging that his wife’s temper was such that he could not live with her; and he has continued to live apart from her ever since, although he did during all the time since, up to the time of filing the libel, supply her with fifteen dollars per month for the support of herself and children; and, from time to time, during the whole separation, and down to the time of filing the libel, the libellee has furnished to his wife some wood and coal, flour, clothing and shoes, for herself and his children, and, when called upon, as he was occasionally, sent to the libellant small sums of money, and furnished a physician when needed at all times. The libellant frequently applied to her husband to live with her; but he declined to do so, alleging as a reason that her temper was such that he could not live with her in peace, and that it was better that they should live separate. The parties have three children. During all the time since 1862 the parties have lived separate, the libellee declining to live with his wife for the reason before stated, but during all the time he has made the payments and advances before stated. Such payments were insufficient to support the libellant, and she has been obliged to labor constantly for the support of herself and the children. On the evidence,-the judge was of the opinion, and found, that the libellee was not justified in refusing to live with his wife ; and, at the request of the libellee, reserved for the consideration of the whole court the question whether upon the facts above stated a divorce from, the bonds of matrimony should be decreed.”</p>

<p>If tht award of arbitrators, to whom a case is referred by rule of court, is silent on the subject of costs, the prevailing party is entitled to recover them.</p>

<p>A fire, set by sparks from a locomotive engine of a railroad corporation to wood piled against a freight-house at the railroad station in a village, consumed the freight-house, and spread to and injured the station-house, which was thirty feet distant from the freight-house. A dwelling-house, about sixteen hundred feet distant from the station-house, and seven hundred and forty feet from the railroad track, caught fire from sparks wafted through the air by the wind to its roof from this conflagration, and was injured, Meld, that the railroad corporation was liable for the injury, under the Gen. Sts. c. 63 § 101.</p>

<p>The first case was an action of tort by Moulton against McOwen for negligence in building a cellar and cellar wall for the plaintiff. Writ dated August 21, 1868.</p> <p>The declaration was as follows : “ And the plaintiff says that, on December 28, 1867, he was the owner of a house-lot situate on First Street in Lowell, and the defendant made a special verbal contract with him to excavate and stone a cellar in said lot, with a good and sufficient dry and mortar wall, to be two feet thick, and with a trench wall one foot deep, the cellar to be seven feet deep in the clear, the materials to be good and furnished by the defendant, and all the work to be done in a strong and workmanlike manner. And the plaintiff says that the defendant, although he undertook to dig the cellar aforesaid, carelessly and negligently neglected to dig it seven feet deep, but left it only six and a half feet deep, and carelessly and negligently neglected to put in the trench wall; and that the defendant, in building the dry wall, did not do it of good material, nor in a strong and workmanlike manner, nor did be build it two feet wide, but wrongfully and negligently made it a narrow wall, not over a foot and a half wide, so that said wall caved in and fell down; whereby, and by reason of all which, the plaintiff hath been greatly damaged, and hath been put to great cost and expense in the repairing and rebuilding of said wall, and in the furnishing of materials for the same, and hath been otherwise greatly damnified by reason of the nonfulfilment of the defendant’s contract aforesaid.”</p> <p>The defendant answered, denying “ that he ever made the contract set out in the declaration, and each and every particular of said contract;” and further as follows: “He admits that he built a mortar wall for the plaintiff, and he says the same was built according to the directions of the plaintiff, and was properly and strongly built, and in a workmanlike manner, and he is ignorant whether the same has caved in and fallen down, and if the plaintiff shall prove the same, then the defendant says that the same resulted from no fault of the defendant and from no want of the proper building of said wall; and he denies that the plaintiff has suffered any damage by reason of any fault of the defendant in said matter of building said wall; and he denies that he was careless and negligent in the building of said wall.”</p> <p>The second case was an action of contract by McOwen against Moulton for a balance of $69.20 alleged to be due on an account annexed for $259.20 for labor and materials expended in the work concerning which damages were claimed in the first action. The answer alleged that McOwen did not do the work in a workmanlike manner, and that he had been paid all that his labor and materials were reasonably worth.</p> <p>■ The cases were tried together, in the superior court, before Rockwell, J., who, after a verdict for McOwen in both actions allowed the following bill of exceptions:</p> <p>“ At the trial there was evidence tending to show that McOwen undertook, by oral contract, to put in a cellar for Moulton in a workmanlike manner, and undertook to make the cellar wall two feet thick, and of good material, seven feet high from the bottom of the cellar, with a trench wall of cobbles under it, two feet wide and one foot deep, extending below the bottom of the cellar. There was also evidence tending to show that McOwen in doing the work neglected to put in the trench wall, so that thereby Moulton was damaged and was put to considerable ex pense in constructing a drain in lieu of it; that the materials of the walls were defective, and that McOwen did not build them in some places more than a foot or a foot and a half thick, by reason of which the walls under the front as well as under the back part of a wing of the house gave way, and fell down, causing that part of the house to settle about one and a half inches, part way of the length of the sill on one side; and that, when that part of the wall was repaired, the sill was raised about three quarters of an inch, and could not safely be raised more, because the raising of it quite to its former height would make cracks about the chimney and a pipe which went into the chimney.”</p> <p>“ The judge instructed the jury as follows: If the contract called for stone good and sufficient in quality, and it was not good and sufficient, and the wall was worth less on that account, the deficiency in quality is an item of damages. If the contract required a wall (a dry wall and mortar wall) seven feet high, and it was not of that height, that defect is an item of damages, if the wall as left by the contractor was not as good as if it had been built seven feet high; and the same in relation to the width of the wall, if the contract was for two feet wide, and the wall worth less on account of being built of less width. If the contract prescribed that the cellar should be dug out seven feet deep, and it was dug and left at a less depth, and that defect made the cellar worth less than a seven feet cellar, that defect is an item of damages. If the contract called for a trench wall under the dry wall, and that trench wall was not put in, that defect in the performance is an item of damages. These are the items of damages. If any or all of these defects existed in the work as done by McOwen, and were supplied by Moulton, he may recover as damages his fair cost of supplying them. Possibly this cost of supplying them may not show the whole damages recoverable; because, if Moulton, after he took the work, chose to let a defect remain unsupplied, he may recover, in regard to that defect, a sum equal to the fair cost of supplying it; and that may be added to the other damages as above stated. But, as Moulton took the work when left by McOwen, and did work and found materials, himself, to supply or remedy the defects; if, finding one side of the building settled, say one} and a half inches, at the time of building up the defective wall he raised that side, say three quarters of an inch only, preferring so to leave it to running the risk of making cracks in the chimney and pipe, he cannot recover for that depression as an item of damages, it not being such a proximate damage as can be recovered for. Moulton not alleging that he has paid the full contract price, (stated on both sides to be $220,) the jury will ascertain from the evidence how much of that sum, if any, has been paid by him. They will ascertain the damages, if any, and their amount, upon the principles before stated; and they will also inquire if that amount of damages is equal to, or less or greater than the difference between the amount paid and the $220. If th,e damages, thus ascertained, are less than, or only equal to, that difference, the plaintiff Moulton cannot recover; but if they are greater, be may recover the sum by which they are greater, as damages in his action.”</p> <p>“In the case of Moulton v. McOwen, the jury returned a verdict for the defendant; and in the case of McOwen v. Moulton they found a verdict for the plaintiff, assessing damages at $77.18. To the foregoing rulings and instructions the said Moulton excepts.”</p>