Volume 104 — Massachusetts Reports

<p>A specification of nontenure and disclaimer, pleaded with the general issue, to a writ of entiy, is falsified by proof of occupation of the demanded premises by the tenant with a permanent building, although such occupation is by a mistake of boundary and without intention to disseise.</p> <p>The misappropriation by a railroad corporation of land taken by right of eminent domain for the location of the railroad cannot be set up as working a forfeiture of the franchise on a writ of entry brought by the owner of the fee; but the demandant may maintain the writ to establish his right in the land and recover damages or mesne profits for the unauthorized use of it.</p> <p>The surrender by a railroad corporation into the exclusive use and occupation of private traders or manufacturers for their trade or manufactures, as tenants for rent, of land taken by right of eminent domain for the location of the railroad, and buildings erected thereon by the corporation as freight-houses or engine-houses, is a misappropriation of the land, which entitles the owner of the fee to maintain a writ of entry to establish his right therein and recover damages or mesne profits for the unauthorized use of it; although the corporation derives advantages in its freighting business from the carriage of merchandise for the tenants and the receipt and delivery of it at these buildings instead of at the regular station-houses, and the buildings remain adapted to the purposes for which they were erected, and the corporation does not intend to permanently abandon the use of the premises for the railroad.</p>

<p>A landowner in a city, who drains his premises by a private drain leading from them under the adjoining street, has no right of action against the city for merely opening a passage from the street down into the drain to conduct off surface water. But if the city constructs and maintains the passage in such a manner as in effect to adopt it, in connection with the drain, as a common sewer, and by negligence in its construction or repair obstructs his drainage, it is liable to him in an action at common law for the obstruction.</p>

<p>An alteration in the location of an existing highway was made by the county commissioners, upon the petitioner’s land, and under his agreement to bear the whole expense. He was constructing a canal across his land, and had nearly finished digging the trench through the place of the new location at the time thereof; and he proceeded to build the new way and the canal together, and carried the way over the canal upon a bridge which was finished before water was let into the canal. Held, that he was liable for the subsequent expenses of maintaining and keeping in repair the bridge over his canal.</p> <p>The proprietor of a canal built across a highway which is subsequently traversed by a horse railroad is not exonerated by the St. of 1866, c. 286, § 1, from his liability in the first instance to the town or city for the expenses of repairs made within the location of the railroad in the bridge which conducts the highway over the canal.</p>

Tort on the Gen. Sts. c. 44, § 22, for injuries alleged to have been caused to the plaintiff by a defect in Merrimack Street, in Lowell, a highway which the defendants were bound to keep in repair and on which the plaintiff was travelling with due care at the time of the accident. The answer denied each and every allegation of the declaration, except that the defendants were bound to keep the street in repair.

<p>Contract. Writ dated May 8,1865. In 1867 this case was submitted to the judgment of the superior court on agreed facts, and was argued in this court at January term 1868 on exceptions alleged by the plaintiff, which were sustained, as reported 99 Mass. 53-60.</p> <p>The declaration alleged that the defendants, who were partners, made a written contract with the plaintiff, dated November 10, 1863, a copy of which was thereto annexed. Many of the clauses of this contract were quoted, or their substance given, in the previous report, and the following is an abstract of all of them which are now material: After a preamble reciting that Samuel S. Weed, the plaintiff, had obtained “ valid 'etters patent” for an improvement in sole-cutting machines, and the defendants desired to build and sell such improved machines, the defendants agreed with the plaintiff to build six such machines without any expense to him, “ except he is to furnish patterns for the same; ” and further agreed “ to finish, ready for immediate use, at least three of said six machines, within two months from the day the patterns are furnished,” “ and all within three months from the day the patterns are so furnished.” It was also stipulated that, whenever the defendants should sell a machine “ out of said six or other machines they may build under said patent,” the plaintiff should have $140 out of the proceeds; and whenever tne plaintiff should Bell a machine, “ either out of said six or any other mach ines said firm may build,” he should have $160 out of the proceeds the balance of proceeds, in either case, to belong to the defendants. “ And it is further agreed that said firm [the defendants] is to build any number of said machines more than six that said Weed [the plaintiff] may order, if said Weed does not order more than twelve at any one time.” “ And it is further ■ agreed that, if said Weed shall order any number of machines, not more than twelve, said firm is to build two of them ” “ each month thereafter, until the whole order is filled.” “ And said Weed is to have the right to take a machine at any time by paying said firm $140.” “And it is further agreed that said Weed is to furnish one set of patterns, and only one set of patterns, free of expense to said firm, and said firm is to have the right to build and vend any number of said machines, provided for each and every machine built and sold he receives the amounts above stated from said firm.” “ It is also further agreed that either party to this contract may terminate it by giving the other four months’ notice; but, when notice is given, all orders up to the end of that time which have been given are to be filled as above stated, and all machines not completed to be completed in the manner above stated; and all machines which said Weed orders, together with any others which said firm may have built, or may be building at the time notice is given, to the number of six, are to be taken by said Weed, and paid for at the rate of $140 apiece within one year after the termination of the contract, provided said notice is given by said Weed ; but if notice is given by said firm, then for all machines ordered or built or being built at the time the contract terminates, said firm is to take the same and pay said Weed therefor $140 apiece, or deliver the same to said Weed built in a complete and workmanlike manner, and ready for immediate use, within one month after the termination of the contract, by said Weed’s paying said firm therefor for each machine $140 within six months after the termination of the contract, the same to be at the option of said Weed, which shall be done; if said firm takes the machines as above, said Weed is to have the right to sell as many of them as he can ; and for every machine so sole said Weed is to receive the sum of $20 as soon as the same is sold.” “ And it is further agreed that, if said Weed is not paid the sums above stipulated by said firm, at once, on the sale of each and every machine, then said Weed shall have the right to terminate this contract at once, without notice and without injury to any damages that may have accrued to him by reason of any breach of this contract by said firm. And it is agreed that no machine is to be sold for less than $300.” “ And it is further agreed that said Weed is to hold said firm harmless in all cases of sales of said machines by said firm, and in no other case, against any and all suits brought against said firm for an alleged infringement of said Weed’s patent on any other patent or patents.”</p> <p>The declaration further alleged that “ the defendants did build six machines according to the terms of said contract, four of which were sold and disposed of by the plaintiff, and the proceeds went into the hands of the defendants, and two of which now remain in the hands of the defendants undisposed of; and the plaintiff says he furnished one set of patterns according to the terms of said contract, and has performed all other conditions precedent to said contract; and the plaintiff says he did order, on or about the last of May or first of June 1864, twelve more of said machines over and above the said six, and the deto fendants wholly neglected and refused to build the said twelve according to the plaintiff’s order and the terms of said contract, and did wholly neglect and refuse to do so up to the termination of said contract and ever since; and the plaintiff says the defendants gave the plaintiff, on or about June 22,1864, the requisite notice according to the terms of said contract to termínate the same on or about October 22,1864; and the plaintiff says it was his option that the defendants should pay him $140 apiece for all machines ordered, built or being built at the time the contract terminated, and gave the defendants notice accordingly; but the defendants, notwithstanding the same, have neglected and refused, and now neglect and refuse, to pay the plaintiff according to the terms of said contract, though often requested to do so, to wit, to pay the plaintiff $140 apiece for two machines now in the hands of the defendants undisposed of, and the twelve machines ordered by the plaintiff as above stated.”</p> <p>The answer admitted the making of the contract, and the building by the defendants of six machines pursuant to it, but alleged that the defendants “ had given notice to the plaintiff terminating the said contract, as therein provided, before the plaintiff gave any order to them for the building of twelve additional machines; ” denied that the defendants “ were bound to fill said order, if any such was given, as alleged, for the building of said twelve additional machines; ” and denied that “ the plaintiff did order of them twelve more of said machines as alleged ;” “ and as to the two machines built by them under said contract and not sold, the defendants say that the same have not been sold, and cannot be sold, and they deny that they agreed to take the same and pay the plaintiff therefor as alleged, except after a sale thereof made; and the defendants deny that they owe the plaintiff $140 for each of twelve machines alleged to have been ordered of them, or any part thereof, as alleged, or ever promised to pay said sums therefor; and the defendants say that, before and at the time of making said contract with the plaintiff, the plaintiff represented to them that they could build the machines in said contract mentioned without liability to any other party, and that he was lawfully authorized to license them so to build said machines, and that all pretensions of other parties to the contrary were unfounded, and that no risk whatever was incurred by the defendants in making and executing said contract in this respect, and that he owned the exclusive right to make the said machines and all material parts thereof; and the defendants were thereby induced to enter into the said contract; and the defendants were, long before the date of the plaintiff’s writ, notified and cautioned by other parties, claiming to be patentees of material parts of said machines, that they would be held accountable for infringement for all acts done in fulfilment of their said contract with the plaintiff, and the defendants are ignorant whether the representations made by the plaintiff to them as aforesaid were true or false, bu allege the same to be untrue, and that so their said contract was without consideration and void for misrepresentations.”</p> <p>At the new trial in the superior court, at December term 1868, before Putnam, J., without a jury, the judge reported the case as follows:</p> <p>"The plaintiff and the defendants entered into the contract, dated November 10, 1863, as alleged in the declaration; and in pursuance of this contract the defendants proceeded to build six machines, under the plaintiff’s patent, the patterns for which, excepting the pulley pattern, as hereinafter stated, were furnished by him. Before these six machines were all made, letters hereto annexed, dated respectively May 12, May 18 and June 22, passed between the parties.”</p> <p>The letter of May 12 was written by the defendants to the plaintiff; and in it they stated that “ stock and labor have advanced so much that we shall be under the necessity of making a new arrangement after completing the first six machines,” and asked the plaintiff to come to see them.</p> <p>The letter of May 18 was written by the plaintiff to the defendants ; and in it, after stating that it was not convenient for him to go to see the defendants at once, but that he would do so soon, and, alluding to a machine sold to parties in Montreal, he continued: “ The money, $300, for the machine to Montreal, was paid to your order before I came from there. Please deduct expense of the pulley pattern, if you have got one, and send me by express the remainder of what is due me. There is something yet due to you for altering the patterns. Please take that also out of the $160 due me on the machine. If you have not got a pulley pattern yet, I will find you one, or send you whatever pulleys you may need while in Canada. I got a number of orders for machines, and have agents there who will do all that can be done in selling them for me. I shall now pay my whole attention to selling and setting up machinery. Please finish off those now begun as soon as possible; also be getting the castings for more. I shall want twelve more before you will he able to finish them. Please hurry them as fast as possible. Please let me know if it will be convenient for you to make the patterns and machines for me.”</p> <p>The letter of June 22 was written by the defendants to the plaintiff; and in it they stated: “ We can finish the six machines without a pulley pattern, but shall need one before making any more machines. You will recollect that we wrote > you May 12, and again on May 24, to the effect that we could make no more machines after the first six without a new arrangement, on account of the advance in price of stock and labor. We intended that as a notice of termination of contract; but if it was not a legal notice, then we hereby give notice that we shall terminate the contract dated November 10, 1863, according to the terms therein specified, viz.: in four months from this date.” It did not appear, from the report, that the letter of May 24, herein alluded'to, was introduced in the case.</p> <p>“ The plaintiff, after receiving the letter of May 12 and sending the letter of May 18, and before the completion of all said first six machines, and before the reception of the letter of June 22, had an interview with the defendants in regard to building machines by them, under the contract, in addition to the six expressly provided for in the contract. The defendants then told the plaintiff that they did not regard his letter to them of May 18 as an order for additional machines under the contract, and asked him if he so regarded it. He told them, in reply, that he did; and that he wanted them to build twelve additional machines, at any rate, and wished them to consider him as then giving an order for twelve more machines, if his letter was not such an order. This was after the defendants had made four of the six machines, and before they had completed the last two of said six. The defendants proceeded to finish the two last machines, (the fifth and sixth,) but did not make any more as ordered or requested by the plaintiff, and refused so to do. Four of the six machines made by the defendants were sold, and the proceeds thereof divided, pursuant to the terms of the contract and the other two still remain unsold in the defendants’ bands though held for sale since they were finished in the summer ot 1864, the plaintiff having claimed that they belong to the defendants. There was a demand for these machines in the market in 1864, at the price of $300, and the difference between what the defendants agreed to build these machines for, and what the plaintiff would have been required to pay others for building them, was $114 each. The plaintiff, before commencing this suit, notified the defendants that he should look to them to pay him the sum of $140 on each and all the machines, either made, being made, or ordered, sold or not sold, claiming those sums as payable to him in consequence of the defendants’ having terminated the contract, and of the provision of said contract giving him a certain option in such case. The letter of May 12 was written and received before any order for additional machines had been given by the plaintiff to the defendants, and the letter of May 18 was written and received before the completion of said six machines, the words in said letter, ‘ those now begun,’ referring to those of the first six not then finished.</p> <p>“ At the time of making said contract of November 10,1863, letters patent of the United States had been issued to Churchill & Hatch, dated before the plaintiff’s letters patent, for a machine which the defendants claimed was in some respects like that described in the plaintiff’s patent, but which the plaintiff denied. The plaintiff took a license from Churchill & Hatch, which was revoked by them before November 10, 1863, the plaintiff refusing ta make payments under it, claiming that the patent was invalid. This patent of Churchill & Hatch was surrendered on or about May 1866, and reissued on or about July 24,1866. No other evidence was offered in reference to the patents than is here referred to. The defendants were notified on July 14,1864, by Churchill & Hatch, that they should hold the defendants liable for infringement of the patent, on account of the machines which they had built, and the defendants were so notified before the surrender and reissue of the Churchill & Hatch patent, but the defendants did not inform the plaintiff that they were so notified till December 2, 1864. Churchill & Hatch brought suits against the plaintiff for an infringement of patent, and prosecuted the same from 1862 till May 1866, when they discontinued said suits.”</p> <p>“ The plaintiff did not furnish the defendants with the pulley patterns for the six machines ; but the defendants furnished the pulleys, and charged them to the plaintiff, who paid the defendants for them. They notified the plaintiff that they could finish the six machines without any pulley patterns, but that they should need one before making any more. They did not, however, request the plaintiff to furnish them with such pattern for the building of additional machines; nor did they decline to build them on this ground, when ordered, but on the ground of an advance in the price of labor and stock.”</p> <p>“ The plaintiff made no claim in this suit on account of any of the six machines actually built under the contract, two of which remain unsold, but claimed damages for the refusal of the defendants to proceed in building the machines ordered in addition to the six, and that he was entitled to recover the sum of $140 for each machine not built according to said order, or else the difference between what the defendants agreed to build them for, and what he would have been required to pay others for building them, which additional price is the sum of $114, and, for the purposes of this hearing, agreed that he should only bet entitled to recover, as damages, the said sum of $114 for each machine which the defendants should have made under the contract.</p> <p>“ Upon these facts, I find that the plaintiff is entitled to recover the sum of $1407.90 from the defendants, being at the rate of $114 each for ten machines, with interest on the same from the date of the writ. To this ruling and finding the defendants except, and the facts are reported by me to the supreme judicial court.”</p>

Two actions of contract. The first action, by Shattuck against Green, was on a promissory note dated December 5. 1866, for $300 payable on demand with interest, given by Green to Shattuck in part payment for an undivided half of the furniture, fixtures and stock in trade of an eating house in East Boston, called a dining saloon. The answer set up a failure of the consideration for the note.

Contract for expenses incurred in supporting as a pauper a minor child of James Davis, Jr. The question at issue was whether the St. of 1865, c. 230, gave Davis a settlement with the defendants.

<p>Tort in the plaintiff’s name by his next friend for injuries alleged to have been caused on December 3,1866, by the negligence of the defendant’s servant in driving a pair of horses, drawing a hack, over the plaintiff, who at the time of the accident was crossing Henly Street in Charlestown and using due care. The answer denied that the driver was negligent, and that the plaintiff used due care.</p> <p>At the trial in the superior court, before Brigham, J., the plaintiff’s evidence tended to show that he was born May 2, 1862; lived in Chelsea Place in Charlestown; was admitted to a primary school on Common Street in that city November 20,1866, as being five years old, children younger than five years old not being admissible by the regulations of the school; that between the date of his admission and December 3 he had attended school “a little over a week;” that two of his brothers, aged respectively seven and nine years, who were pupils in the same school, usually came to the school-room with him, and usually left the school-room with him; “ that the plaintiff was as intelligent as the average of children in the school five years of age, but rather small for that age; ” that he attended the school on the morning of December 3, and upon its dismissal started to go home by his usual and proper route, across Henly Street, which was not one of the principal thoroughfares of the city, but was about thirty feet wide from curbstone to curbstone of its sidewalks, was traversed by a horse railroad, and would Lelong to the third class of streets in a scale of four; and that, as the plaintiff was passing (some of the witnesses said, running) across Henly Street, about ten minutes past noon, the defendant’s servant, who was conveying some voters to the polls in a hack drawn by two horses, and for some distance' before reaching the place where the plaintiff was crossing the street, was not looking forwards, but had his head turned away from the horses and was talking with a man who was on the box of the hack with him, drove over the plaintiff and injured him. “ There was no evidence offered on the part of the plaintiff, that, on the day of his injury, he was attended by either of his brotners, or by any other person, either in going to or returning from school; and there was no evidence on the part of the defendant tending to disprove the evidence of the plaintiff in respect to the age of the plaintiff or his intelligence, or the usual mode of his going to and from school.”</p> <p>The plaintiff called his school-teacher, Sarah Browers, as a witness, “and offered to show by her, and by others, that, in her and their opinion, the plaintiff was capable of exercising ordinary care in travelling along and across the streets through which he was called to pass in going to and returning from school, and was competent to go to and from school unattended ; but the judge ruled the testimony incompetent and inadmissible, and refused to receive it.”</p> <p>The plaintiff’s counsel requested the judge to rule “ that the plaintiff, being four years and seven months old, and of the ability and intelligence of the average of children attending the public schools of the age of five years, his parents were not guilty of negligence in permitting him to go from his home to school alone, and to return home from school alone, and in so doing to cross Henly Street at the time when and place where he was when he was run over by the defendant’s servant;” but the judge refused so to rule.</p> <p>In submitting the case to the jury, the judge gave them these instructions without objection: “ Parents would neglect the safety of their child, who, knowing that their child was proceeding to a place of danger in the street, failed to prevent, or permitted, their child to proceed to such places unprotected. It has been decided in this Commonwealth that parents, who permitted a child two years old to 'pass unattended across a public street in a city, traversed by a horse railroad, had primd facie neglected the safety and failed in proper care of that child Such facts, in and of themselves, are sufficient to authorize a jury to find that such a child is not properly taken care of by tnose having such child in charge. The plaintiff was a child of the age of four years and seven months, permitted to go to and from school across the street where he received his injury. Was he of so tender an age as to be incapable of taking care of himself, in view of the time when he would usually cross Henly Street, and in view of the usual and ordinary kind and amount of travel on that street ? If the plaintiff, in the exercise of his right of crossing the street, when capable of exercising and actually exercising ordinary care, in crossing that street received an injury from the defendant’s hack and horses because they were not driven with ordinary care, he would be entitled to recover.”</p> <p>But the plaintiff objected to the following instructions which the judge also gave to the jury: “ The negligence of a parent, or other person, to whose care a child is intrusted, has the same effect, upon an action to recover damages for an injury occasioned by another person to that child, which his own want of care would have if the person injured and such seeking damages was an adult. If that child was incapable of taking care of himself under the circumstances, that is, incapable of observing, appreciating and anticipating the danger from passing vehicles, and of avoiding it, by the exercise of such care as an adult person of ordinary prudence and caution would exercise, then his parents were chargeable with neglect in permitting him to cross that street unattended, and he cannot maintain this action. The defendant had a right to drive his horses along Henly Street; the plaintiff had as perfect a right to cross that street. The defendant in the exercise of his right would not be responsible for an injury to a person crossing that street, who was incapable of exercising, or who did not exercise, ordinary care.”</p> <p>The jury found for the defendant, and the plaintiff alleged exceptions, 1. to the rejection of the evidence of opinions of the plaintiff’s capacity to exercise due care; 2. to the refusal to rule that the plaintiff’s parents were not negligent; and 3. to the instructions stated as given under objection.</p>

<p>One who places his horse and wagon in a street in a city transversely to the course of the street, while loading articles which a city ordinance permits to be loaded only in vehicles placed lengthwise and as near as possible to the sidewalk, is not restrained by the mere fact of thus violating the ordinance from maintaining an action against one who injures the horse by negligently driving another wagon against it, when by exercising more care he might have avoided doing so.</p>

<p>Tort for injury of the plaintiff’s person and property by the explosion of a fluid which he was burning in a lamp. Writ dated June 22,1869. The declaration contained two counts; the first, upon the St. of 1867, c. 286, the material parts of which statute are printed in the margin;* the second, upon the common law.</p> <p>The first count alleged that “ the defendants sold to one Nathaniel E. Chase a certain quantity, to wit, one barrel, of naphtha, under the name of oil, contrary to the statute in such case made and provided; and the said Ch'ase retailed and resold a part of the same, to wit, one pint, to the plaintiff, for the purpose of being burned in a lamp for illuminating purposes; and while the plaintiff was using the same in a lamp for illuminating purposes, the same ignited and exploded, and dangerously burned, wounded and injured the plaintiff in his face and eyes, ears, mouth, nose, head and hands, and other parts of his body, so that his life was greatly endangered and despaired of, and also burned his clothes, destroyed the gas fixtures in the entry of his dwelling-house, and otherwise injured his dwelling-house and furniture; and by reason of such burning, wounding and injuties, the plaintiff was rendered incapable of following and transacting his necessary affairs and business for a long space of time, to wit, the space of seven weeks, and underwent during all said time great pain and distress of body and mind; and thereby the plaintiff was forced and obliged to and did pay, lay out and expend divers large sums of money for medicines, nursing and attendance of a physician in endeavoring to heal and cure his said burns and wounds and injuries, amounting in all to the sum of, to wit, the sum of five hundred dollars.”</p> <p>The second count alleged that “ the defendants are manufacturers of and dealers in oils, and Nathaniel E. Chase was a retailer of oils and fluids to be burned in a lamp for illuminating purposes; and the defendants, knowing said Chase to be such retailer, sold and delivered to said Chase a certain quantity, to wit, one barrel, of very dangerous and explosive liquid, called naphtha, for the purpose of being retailed and resold to be burned in a lamp for illuminating purposes, it being the purpose, and the defendants knowing it to be the purpose, of the said Chase to retail and resell the same to the public to be burned in a lamp for illuminating purposes, the defendants knowing that said liquid was explosive and dangerous to life when so used; and the said Chase, not knowing the same to be dangerous and explosive, retailed and resold a certain quantity, to wit, one pint of the same, to the plaintiff to be burned in a lamp for illuminating purposes; and while'the plaintiff was using the same in a lamp for illuminating purposes, and not knowing the same was naphtha, or dangerous and explosive, the same ignited and exploded” and injured the plaintiff’s person and property, and caused him delay and pain and expense, as alleged in the first count.</p> <p>The answer was a general denial of each and every allegation in the declaration.</p> <p>Trial in the superior court, before Lord, J., who allowed the following bill of exceptions: “ At the trial, the plaintiff offered evidence tending to prove all the allegations in either count but the judge ruled that they would not sustain, bis action, if proved, and directed a verdict for the defendants; to which ruling and direction the plaintiff excepted.”</p>

Two actions of tort ; the first, for injuries occasioned to an infant by the negligent firing of a rocket by the defendant; the second, by the infant’s father, for a loss of his child’s services by reason of said injuries, and for the expenses of causing him to be attended by a surgeon. The principal injury alleged was the loss of one of the child’s eyes.

<p>Tort for injuries sustained by the plaintiff in attempting to cross, with his horses and sled, the street railway track of the defendants in Washington Street in Boston, on February !, 1868, and alleged to have been caused by the negligence of the defendants in heaping up snow and ice on the sides of the track. At the trial in the superior court, before Wilkinson, J., the plaintiff introduced evidence tending to show these facts: During the latter part of January 1868 there was a heavy fall of snow, and the defendants removed it from their railway track with snow ploughs, which cleared the iron rails and heaped up snow each side of the track, where it lay on February 1 twelve or fourteen inches deep, icy, and sloping down to the rails at angles of about forty-five degrees.</p> <p>Harrison Avenue is a street which runs nearly parallel with Washington Street; Davis and Dover Streets are parallel streets, connecting Washington Street and Harrison Avenue; and there is a railway track of the defendants in Dover Street. Where Davis Street joins Washington Street, the defendants’ track in Washington Street runs along the middle of the carriageway, about twelve feet distant from the curb-stone of the sidewalks.</p> <p>The plaintiff was a teamster and about forty years old. On February 1 he was transporting a load of lumber from Charles-town, which lies north of Boston, to a place on Harrison Avenue south of Dover Street. The lumber weighed about 3400 pounds, consisted of joists some of which were fifty feet long, and was loaded- on a sled drawn by a team of two horses.</p> <p>“ The sled was what is called a traverse sled, having a double set of runners, with sides like a job wagon, held up by iron supports. The lumber rested, in front, on a roller which was placed over the fore part of the sides of the sled, thence sloping down to another roller, placed at the bottom of the hind end of the sled. The lumber projected over the shaft horse’s back and was fastened to the wagon sides by ropes.”</p> <p>The plaintiff, on his way, turned into Washington Street at a point some distance north of Davis Street, soon after noon; and he testified that “ he saw the excavation made by the defendants, as he passed up southerly on Washington Street, on the right or westerly side of the street, and knew it to be dangerous, and, preferring to get into Harrison Avenue through Davis Street, where there was no horse railroad track, as there was in Dover Street, and seeing how the icy snow lay, he directed his man, who had assisted him in loading, and had accompanied him thus far, to take the leading horse by the head, and to lead him across the track, as nearly at a right angle as he could, and into Davis Street.” The man obeyed the direction, “ crossing nearly directly across, and at a walk; the plaintiff himself holding the shaft horse by the bridle at. his head. A witness called as an expert, and not contradicted, testified that this was the correct way to cross, avoiding an acute angle crossing, which might be more likely to produce an upset. When the forward .runners came upon the rail track, the hind runners being still on the snow heap on the westerly side, the load was so thrown forward that it broke the nigh forerunner and the wagon side, breaking the iron braces, and the lumber came upon the shaft horse and the plaintiff, throwing both of them down, somewhat injuring the horse, and breaking the plaintiff’s ribs and doing him serious injury.”</p> <p>On this evidence, the defendants, without offering any evidence, asked for a ruling that the plaintiff had not shown that he used due care; and the judge ruled “ that the plaintiff, hay ing voluntarily driven into the excavation, knowing it to be dan gerous, could not maintain his action,” and directed a verdict for the defendants, which was returned. The plaintiff alleged exceptions.</p>

<p>Tort on the Gen. Sts. c. 44, § 22, for an injury alleged to have been received by the plaintiff through a defect in a highway in Boston. Trial before Morton, J., who reported the casa . follows •</p> <p>“ At the trial the plaintiff offered to prove that, on June 7 1867, as she was travelling along the sidewalk of Union Street, a public highway in said city, which the defendants were bound to keep in repair, and using due care, a sign or signs, suspended and projecting over said sidewalk, together with the iron rod or frame from which the same were hung, but so high that persons travelling along said sidewalk would not come in contact therewith, fell upon the plaintiff, and dislocated and fractured her hip, causing her very serious injury ; that said injury was caused solely by the falling of said sign or signs, and rod or frame; that said sign or signs, and rod or frame, were hung in a very unsafe and insecure manner; and that said sign or signs, and rod or frame, had so hung, as aforesaid, for the space of more than twenty-four hours prior to said injury, and after reasonable notice to the officers of said city of such suspension and condition, more than twenty-four hours prior thereto. Said sign and frame was put up by and belonged to the owner of the building to which it was attached. Upon this offer of proof, I ruled that the action could not be maintained, and so instructed the jury, who returned a verdict for the defendants; and now I report the case for the determination of the full court.”</p>

Tort on the Gen. Sts. c. 44, § 22, for injuries alleged to have been received by the plaintiff through a defect in a highway which the defendants were bound to keep in repair.

<p>A town may be liable on the Gen. Sts. c. 44, § 22, for an injury resulting to a traveller from a defect in a highway, although the defective place is within the location of a railroad which crosses the highway on a level therewith.</p> <p>In moving a building, by permission of a town, through a street which the town was bound to keep in repair, the ground was dug up around a post which obstructed the passage of the building, so as to cause the post to slope over and obstruct travel on the sidewalk, and at the base of the post on the side towards the carriageway there was left for several days an excavation across which some planks were laid, which at times were displaced so as to leave a hole a foot wide, open towards the carriageway. Between nine and ten o’clock on the evening of the fourth day after the moving of the building, three men, travelling on foot along the street, turned from the sidewalk into the carriageway, as they approached the obstruction, intending to pass around it, there being no sidewalk on the other side of the street. The night was dark and foggy; and there was no light on the street. Two of them had observed the hole during previous days. The third, though knowing of the removal of the building and generally of the obstruction and its dangerous nature, had never observed or known of the hole. The two passed safely. The third, who was walking at ordinary speed, abreast with and inside from the second, supposed that he was far enough out in the carriageway for safety, but, in passing the hole, his foot, on the side next to it, slipped into it, and he was thereby injured. Held, that, on evidence of these facts, a jury was warranted in finding that he was using due care at the time of the accident.</p>

<p>A city is not liable for a personal injury resulting from the negligence of officers and members of its fire department in performing their duties, although the department was established and is regulated under a special statute which by its terms required acceptance by the city council before it took effect.</p>

Bill in equity filed February 24, 1868, against the city of Boston and William F. Davis, its water registrar, praying for an injunction against cutting off the Coehituate water from the plaintiff’s tenement, and for general relief.

Tort by Parrott and Henry Hodgkins, against a deputy of the sheriff of Suffolk. Trial in the superior court, before Heed, J., who allowed the following bill of exceptions : “ The only issue between the parties was that of the negligence of the defendant in the care and keeping of a horse.

Tort for personal injuries sustained by the plaintiff by being run over by a band-car on the defendants’ railroad track at Milk Row station in Somerville, and alleged to have been caused by ‘heir negligence.

<p>A raSrcsu corporation is responsible for an assault and battery by the conductor of one of its trains upon a passenger in seizing or attempting to seize his property to enforce payment of his fare.</p>

<p>The successive roads of three railroad corporation*, together with the line of a steamboat company whose boats plied from the end of the third road, constituted a route between two cities. The first corporation had a written contract with the second for mutual transportation of goods over and beyond their roads, having in view transportation between the two cities, and providing that the first corporation might “ bill freight through,” and for any loss of goods beyond its own road the second corporation would indemnify it; and the general course in transporting goods from the first city to the second was for the first corporation to receive and receipt for them, as “ to be forwarded” to the second city; te dispatch them over its own road and the second road, with a way bill in which they were marked for through transportation which way-bill the third road took, with the goods, from the second road, and in its turn delivered, with the goods, to the steamboat company; and to collect the entire freight, not only for the transportation over its own road and the second road, in pursuance of the written, contract, but also over the road of the third corporation and the line of the steamboat company. After deducting from tile freight thus collected a portion fixed in its written contract with the second road as due for its own transportation of the goods, it paid the balance to that road, which, after deducting a portion fixed by oral agreement between itself and the third road, paid the residue to the third road, which divided it with the steamboat line in pursuance of an oral agreement between itself and that line. But between the first corporation and the third corporation and steamboat line, and between the second corporation and the steamboat line, there was no agreement except what may be inferred from this course of business. Held, that these facts warranted the inference that the first corporation was liable as a common carrier over the whole route, to a person from whom, in this course of business, it received goods for transportation from the first city to the second city.</p> <p>A common carrier, who ships goods over part of his route on a vessel which he does not own or charter, is not relieved from liability by the U. S. St. of 1851, c. 43, if the goods are destroyed by an accidental fire on the vessel.</p>

<p>Two actions of tort against a railroad corporation for an injury to the female plaintiff.</p> <p>At the trial of these actions together, before Gray, J., “ there was evidence that, on the morning of February 1,1867, Mrs. Mayo, with her son, six or seven years old, and a woman named Thayer, bought tickets, and were carried in the defendants’ cars from Boston to Wyoming; that the defendants’ railroad had two tracks; that the station at Wyoming was on the west side of the railroad; that the platform of the station, and a like platform on the east side of the' railroad, had no steps next the railroad, but had two steps at their north ends, at which point a highway crossed the railroad on a level; that the outward bound train ran upon the east or right hand track ; that these passengers., after the train had stopped, got out of the front end upon the platform on that side, near its north end, and, immediately after the train had started again, stepped down from the platform upon the highway, and thence upon the railroad, in order to cross to the station, the plaintiff leading her boy by the hand; that Thayer, assisted by a man standing on the platform of the station, reached the platform ; and that Mrs. Mayo, before reaching it, was struck by the locomotive engine of a train coming towards Boston on the west track, and seveiely injured.” Mrs. Mayo testified : “ We got out of the cars quite near the end of the platform, on the opposite side of the tracks from the depot. I stepped backwards, holding back my dress, till all the cars of the train by which we went out had passed. Then I stepped down the two steps at the end of the platform upon the road; and as I got down upon the road, being very timid as to cars, I looked up and down the road, and towards the depot, to see if there was any flag or notice of any danger. A gentleman passed before me; and then Miss Thayer. As I stepped across, I heard no sound, except of the retreating cars; and my first impression was that they were backing. When I came to myself, I was lying upon the ground, I think between the two tracks. I saw no gate or flagman across the road; that was what I looked for. I did not see or hear anything. My eyesight and hearing were good. Just as soon as the way was clear, as soon as the train had moved off, I crossed. I was going to the depot. I knew my way from the depot. I had not the least information, or the slightest idea, that another train was expected at that time.” On cross-examination she testified : “ I meant to go to the depot; that is my only recollection. The last car had not moved away more than four to six feet, when I began to cross the railroad. As soon as it had passed, directly, I went down. I had no baggage except my parasol.”</p> <p>Miss Thayer testified: “ I prepared to cross as soon as the cars had passed. We said nothing ‘to each other while on the platform, except that we would cross ; and we started in company. I had reached the inner track next the depot, when some one called out, and I therefore looked up and saw the engine coming, which was the first I knew of it. A gentleman crossed about six feet in front of me. I saw no train, no flag, and no person to indicate any danger or train coming; and I heard no one speak, no whistle, no bell. As I stepped down, I looked in every direction. There was no gate or flag or flagman on the road. I had no idea of anything coming. I went almost straight across.”</p> <p>It was proved that at th,e time of the accident the following was one of the regulations established by the defendants for the management of their road : “ Trains must stop before arriving at passenger stations, when another train is receiving or discharging passengers at such station. Enginemen will sound their whistle with a continued sound, when approaching a regular station where their train is not to stop. Express trains will pass through stations at a rate of speed not exceeding twenty-five miles, and extra trains not exceeding fifteen miles, per hour.” And there was additional testimony, tending to show that the engine of the train which struck Mrs. Mayo passed the rear car of the departing train on the highway; that it was running at a speed “faster than common;” that no whistle was blown nor bell sounded on it; that it consisted of nine or ten cars; that the smoke from the engine of the departing train obscured the view of it as it approached; and that when it stopped the rear car of it rested two thirds across the highway. It appeared that the spaces between the rails were planked, across the highway; and the evidence left it uncertain whether the planking extended further down, between the platforms.</p> <p>There was evidence tending to show that Alvan Lynde, the station-master, was standing on the platform adjoining the station-house, when Mrs. Mayo and her boy, and Miss Thayer, oegan to cross the tracks; that, being aware of the approaching train, though by. reason of the smoke of the departing train he could not see it, he sprang forward across the track on which it was coming-, called to them to keep back, extended his arms to stop them, and had caught hold of Mrs. Mayo’s arm at the moment when the engine struck her; and that, if Mrs. Mayo had stopped when he extended his arms towards her, she would have escaped the peril; but Mrs. Mayo and Miss Thayer, being recalled, testified that they did not see Lynde or any other person make such a motion to stop them as he described. There was also some evidence tending to show that Mrs. Mayo. Was crossing the tracks diagonally.</p> <p>The question whether, on the evidence of which the foregoing is the substance, a j ury would be warranted in finding verdicts for the plaintiffs, was reserved for the determination of the full court; if it would be, the cases to stand for trial; otherwise, judgments to be entered for the defendants.</p>

<p>An agent in St. Louis for several railroad corporations whose roads together formed a line from that city to Boston was instructed by one of them (whose road lay in New York' not to receive any cotton in its behalf for transportation without writing into the bill of lading an exemption of the carriers from the risk of fire. A factor in St. Louis of a mill corporation in Massachusetts, who was aware of these instructions, and had frequently argued to the railroad agent that the carriers would be liable for a loss by fire notwithstanding such a writing; and who had repeatedly delivered to said agent parcels of cotton for transportation over the line to his principals in Boston, and in each instance, after the'delivery, had received from him and forwarded to them a bill of lading of the parcel as the only bill of lading thereof, knowing that the clause “ Owner's risk of fire ” was written into it, and which stipulated for the exemption of the line from that risk as a part of the consideration of the contract; delivered another parcel of cotton to the agent in St. Louis on June 30, for transportation to Boston, and afterwards, and while the cotton was still in St. Louis, received from him a like bill of lading, dated July 1, as the only bill of lading of it, and, knowing its contents, forwarded it to his principals. Before this - transaction, their treasurer, in conversation with the railroad agent, had said that he did not like the exemption clause above quoted, and the agent had replied that it made no difference, and that the carriers were liable notwithstanding what they wrote in that way; but this conversation was not intended or understood by either party, at the time, as varying the legal effect of any previous or subsequent contracts for transportation. On the line between Sfc. Louis and Boston the cotton was destroyed by fire, upon the railroad in New York, without negligence of that railroad corporation, ffeld, that the railroad corporation was not liable for the loss.</p> <p>The mere fact that a railroad corporation, transporting bales of cotton as a common carrier, packed them into a car so tightly that on their taking fire, the car could not be unloaded, is not conclusive of negligence in the packing.</p>

<p>Contract, with an alternative count in tort, for negligence of the defendants in the matter of a draft for $2401.20, drawn on October 13, 1868, at Boston, by the plaintiffs, (who were merchants in that city, under the name of Sprague) Soule & Company,) upon the firm of Plummer & Company at Providence in Rhode Island. Writ dated November 7, 1868. Trial in the superior court, before Putnam, J., who reported the following case to this court:</p> <p>“ The defendants were common carriers between Boston and Providence, and it was a part of their business to take drafts fike this for collection. The plaintiffs made the draft on the day of its date, and delivered it to the defendants At their office in Boston, with instructions to collect the same. One of the defendants’ clerks asked if it was to be protested in case of nonpayment. The plaintiffs’ clerk replied that they were not to protest it, but to return it at once if not paid. The defendants gave a receipt stating that they received the draft for collection.</p> <p>“ The deposition of James M. Plummer was introduced, to the effect that he was a partner in the firm of Plummer & Company, doing business as flour dealers in Providence in October 1868; that on October 10,1868, a bill for $2400 for flour became due from them to the plaintiffs; that on October 14 the draft in question was presented by a messenger of the defendants ; that he told the messenger that he would not pay the draft for that amount, but would pay the $2400, the amount of the bill; that he did not understand what the $1.20 additional was for, and that he would write to the plaintiffs that day and ascertain, and the messenger said he would hold the draft for the witness to write what the $1.20 was for; that their clerk wrote in the afternoon of that day, at the usual time for writing letters, a letter in the name of Plummer & Company, stating to the plaintiffs, ‘ Your draft for $2401.20 came to hand this morning, but we did not pay it because we did not understand what the $1.20 was for. The parties will hold it until we hear from you; ’ that he received an answer on the morning of October 16, in which the plaintiffs stated that the $1.20 was for three days’ interest; ’ that as soon as he received it he was ready and able to pay the draft for the full amount of $2401.20, and should have paid it if it bad been presented ; that no demand of payment was made during the 16th or 17th of October, but that they continued ready and able to pay the draft during all the 16th, and during the next day, which was Saturday; and that on Monday the firm became insolvent, and had not since been able to pay over fifty per cent, on the dollar of their debts, but bad settled with most of their creditors at that rate.</p> <p>“ A clerk of the plaintiffs testified that he called at the defendants’ office on October 19, to inquire why the draft had not been collected, and the defendants’ clerk told him they would inquire about it; that, receiving no information, he called again on Tuesday, and was told that a communication had been sent that morning to the plaintiffs; and that, receiving nothing, he called again on Wednesday, and was told that Plummer & Company did not understand the item of $1.20.</p> <p>“ One of the plaintiffs testified that he replied to the letter of inquiry, written by Plummer & Company, as soon as it was received, explaining the $1.20; and that they had been able to collect only $1200 on the debt.</p> <p>“It was admitted that it is usual to draw drafts similar to this, in like circumstances, for a debt due from the drawer to the drawee. The defendants offered no evidence; and the case was taken from the jury, and reported, under an agreement of the parties that if, upon this evidence, the jury would be warranted in finding a verdict for the plaintiffs, a judgment should be entered for the plaintiffs for $1233.21, and interest thereon since December 30, 1868.”</p>

<p>If common carriers by water, whose duty of transportation is fulfilled upon landing goods on a wharf in a city, cause them to be carried from the wharf to the place of business of the consignee in the city, they have no lien on them for such additional transportation, (whether or not it is performed by their own servants,) in the absence of any authority for it from either consignor or consignee; and the facts that they received the goods from the consignor marked with the place of business of the consignee, and gave no bill of lading or written receipt for them, do not import such an authority.</p>

<p>It is no defence to an action against a common carrier for breach of his contract to deliver goods, that they were taken from him by an officer under an attachment against a person who was not their owner.</p>

<p>Contract on a promissory note. The principal defendant, whose residence was at Norwich in Connecticut, appeared, answered, and filed a declaration in set-off. The parties summoned as trustees were an express company. In the superior court, “ upon motion to charge them as trustees, it appeared that they as common carriers had taken a package securely sealed up, containing money, and directed to a person of the same name as the defendant at Norwich, Connecticut. The plaintiff filed allegations that the person to whom the package was addressed was in fact the principal defendant, and that the package was his property when intrusted to the carriers and also when process was served. Issue being joined, the facts were found as alleged by the plaintiff. While the package was thus in transit and in the custody of the trustees in Boston, this process was served upon them.” Lord, J., ordered the trustees to be charged, and they alleged exceptions.</p>

<p>4. manufacturer in the interior of Massachusetts gave an order to brokers in Boston: “ Send me twenty-five bags saltpetre at your earliest convenience.” The order could not be filled in Boston at that time, and the brokers bought the saltpetre in New York, directed it to be delivered there to a common carrier for transportation, consigned to themselves to a town near the factory, and advised their employer of what they had done, by a letter to which he made no reply. They had bought like merchandise for him before, on similar orders, but always in Boston, and had forwarded it to him from Boston. But the merchant from whom they bought this saltpetre had no knowledge of this course of dealing. He delivered it to the carrier, as he was directed; and it was lost in course of transportation. On being advised of the loss, the manufacturer denied the brokers’ authority to make the purchase in New York. Held, that the merchant might recover from the manufacturer the price of the saltpetre.</p>

<p>Contract on an account annexed, dated December 13, 1867, for the price of twenty-eight barrels of flour at $7 per barrel, making a total of $196; with a count for the same cause of action, alleging that the plaintiffs “ on December 13,1867, by accident and mistake delivered to the defendant twenty-eight barrels of flour of a higher grade, quality and cost than that to which he was entitled; that the defendant well knew the kind and quality and cost of the flour he was entitled to and was to receive, and well knew that the flour received by him was of a higher cost and value than and not the flour he was to receive and was entitled to recover; and the plaintiffs thereafter demanded of the defendant the value of said flour or the amount of the difference in price; but the defendant has neglected and refused to deliver the same or pay the difference; wherefore the plaintiffs say they are entitled to recover the amount thereof, to wit, the sum of $196, with interest.”</p> <p>The defendant answered, denying that the plaintiffs ever sold and delivered to him any flour at any price; and further, “that at or about the time alleged he did buy twenty-eight barrels of flour from certain flour-dealers, of whom he had been in the habit of buying, of a certain brand, and paid for the same the price agreed ; that he received that number of barrels branded as the sample by which he purchased, and being in immediate and pressing need of the same in fulfilment of his contracts for bread, and without notice or knowledge oí any alleged mistake, his agents and servants made the same into bread; that if the flour was of a better quality than those of whom he purchased intended to send him, he is not responsible therefor, and has derived no benefit therefrom, and he is in no way or degree answerable to the plaintiffs, with whom he had no privity.” The plaintiffs afterwards, on leave, amended their writ and declaration, so as to file a count in tort for the conversion of twenty-eight barrels of flour.</p> <p>At the trial in the superior court, before Morton, J., these facts appeared: “ The plaintiffs were dealers in and warehousemen of flour; and in December 1867 had on storage two lots of flour, one stored by Jacob Greenough, marked D, and another stored by Morse & Company, also marked D. The first was a very low grade of flour, and worth in the market about $6.25 the barrel, of too low a grade to be stamped by the inspectors ; and had no other mark than D on the barrel. The other was a high grade of flour, had the inspector’s brand or mark upon it, and was worth from $13 to $14 the barrel. One was a dark colored and coarse flour; the other white and fine. On December 11, 1867, the defendant ordered and bought of Kemble & Hastings twenty-eight barrels of flour; and, in order to fill the order, Kemble & Hastings bought of Greenough his flour, and received from him an order on the plaintiffs therefor. The teamster of Kemble & Hastings took the order to the plaintiffs, who by accident and mistake delivered to him twenty-eight barrels of the Morse flour; and the teamster carried the same to the railroad depot, whence it was forwarded to the defendant at New Bedford. The mistake was discovered about a month after the delivery.”</p> <p>“ The plaintiffs introduced evidence tending to show that there was on the barrels actually delivered, besides the letter D, the inspector’s brand, showing it to be one of the highest grades of flour; that, in appearance, there was a marked difference between the two; that the defendant was a baker, doing a very large business; and other evidence which he contended tended to show that he knew the flour which he received was in fact better than that which he purchased</p> <p>“ The defendant was a witness, and, under objection by the plaintiffs, testified that he did not know, suppose or believe, that the flour received by him was any way different from that which he purchased. The defendant also introduced testimony tending to show that he was accustomed to buy flour of Kemble & Hastings, and bought this flour without seeing it, ordering flour as good as the last he had bought of them ; that he used it to fill a contract he had made to supply the school ship with bread, and received no benefit from the mistake of the plaintiffs; and that he did not know that the flour he received was different from the flour he had contracted for.</p> <p>“ The plaintiffs asked the judge to instruct the jury as follows : If the contract between the defendant and Kemble & Hastings was for a different grade of flour than that which was delivered, the defendant, by that contract, acquired no title to the flour which was in fact delivered. And if it was used by him, there being marks upon the barrels indicating that it was a different flour from that which he really bought, or if the general appearance was so different that any man of ordinary experience in the business might have seen that it was a different article than that which he bought, the plaintiffs may recover. The bargaining by the defendant for an article of one grade, and the delivery of an article of another and different grade by accident or mistake, the article delivered not being the property of the defendant’s vendor, did not pass any title to the defendant; and, if it was used by the defendant under circumstances which satisfy the jury that the fact of the mistake must reasonably have been known to him, will entitle the plaintiffs to recover of the defendant for the value of the article so delivered. If the defendant has received property which never was that of his vendors, and which they never undertook to sell him, and which he never bought; and if he used it by himself or agent, even nnder mistake, so that he cannot return it, he, having had the beneficial use of it, is under obligation to recompense the true owner therefor. If the defendant actually received an article which he never intended to buy, nor his vendors to sell, and which they never had any title to, and used it, it is immaterial whether the article he intended to buy would have been of greater or less value to him than that which he received ; and therefore, if the plaintiffs are entitled to recover, they will be entitled to the fair market value of the article sent to and received by the defendant.</p> <p>“ The judge declined so to instruct them; but did instruct them that, if the plaintiffs delivered flour of Morse & Company instead of that of Greenough, by mistake, as claimed, and if the defendant received and used such flour, knowing that he had received flour different from that which he had bought; or if, from the marks on the barrels, the appearance of the flour, or other circumstances, he was led to believe that he had received flour different from that which he had bought, he would be liable to the plaintiffs for its value ; but if the defendant was innocent in the transaction, and used the flour, supposing and believing it to be the flour he had bought, and receiving no benefit from the delivery of the wrong flour, he would not be liable.” The jury found for the defendant, and the plaintiffs alleged exceptions.</p>

Contract by brokers for commissions; submitted to the judgment of the court on these agreed facts: “ The plaintiffs on November 12,1868, procured a purchaser for a house belonging to the defendant, who is, and was at that time, a married woman, and held the legal estate in said house in her own right.

<p>Judgment against one joint trespasser without satisfaction does not bar an action against another.</p> <p>A., owning goods attached as B.’s property on a writ in (Vs favor against B., sued the officer for their conversion, and recovered judgment, which remaining wholly unsatisfied, he then sued C. for the same conversion. JHeld, in the second action, that the facts, that C. paid the counsel fees for defending the officer in the first action, and afterwards made oath to a bill in equity which alleged that he placed the writ against B. in the officer’s hands for service in order to prevent the goods from being taken away, and was liable tc indemnify the officer against all loss on account of the attachment, were competent but not conclusive, evidence against C.</p>

Contract for a balance of the price of spirituous liquors sold and delivered to the defendant by the plaintiff, doing business under the name of Boyden & Company.

Contract to recover a balance alleged to be due from the defendants to the plaintiff on an account annexed for “money advanced on paper collars; ” submitted to the judgment of the court on a statement of facts agreed substantially as follows: On May 8, 1866, the defendants, who were partners under the firm of Hill Brothers & Company, borrowed of the plaintiff $2000, payable on demand with interest, and as collateral security for repayment delivered to him twenty cases,…

Contract by a corporation under the law of this Commonwealth against an inhabitant of St. John in New Brunswick.

Contract against Julia, widow of Corbet Ludington, and George C., Lucy M., Francis H. and Caroline E. Ludington, their children, on the defendants’ covenant of warranty of title and against incumbrances in their deed dated May 25, 1869, of a parcel of real estate in Boston to the plaintiff. Writ dated December 21,1869.

Libel on the Gen. Sts. c. 107, § 9,* for a divorce from bed and board, for the gross or wanton and cruel neglect of the libel-lee to provide suitable maintenance for the libellant; heard at April term 1869, by Gray, J., who reserved for the decision of the full court the question whether a divorce should be granted on the following facts: “ The libellee was a policeman ; left the libellant a year before the filing of the libel; and never since, nor for some years before,…

Libel filed October 13, 1868, for a divorce from bed and board, the libellant alleging for cause, that the libellee had “been guilty of extreme cruelty towards her, and particularly on the 23d day of September last inflicted upon her person blows, and then and there did divers other acts of extreme cruelty, to her great injury.” The answer denied that the libellee had ever been undutiful of his marriage vows or obligations, or ever treated the libellant unkindly in any…

<p>Writ of entry, dated December 14,1868, to recover land in Boston. Plea, nul disseisin.</p> <p>At the trial in the superior court, before Lord, J., the demand-ant put in evidence an office copy, from the Suffolk registry, of n deed of the premises, dated January 19,1861, purporting to have been executed and delivered by the tenant to John F. Augustus ; and a mortgage deed of the premises, dated September 14,1861, from Augustus to the demandant, to secure payment of a note for $1000 in four months.</p> <p>The tenant, in defence, was called as a witness, and asked by his counsel whether he had ever seen, signed or executed any such deed as that appearing from the office copy. The demand-ant objected to these interrogatories, contending that such inquiries could not be put to and answered by the witness, without first producing the original deed or properly accounting for its nonproduction; and the judge sustained the objection, and refused to allow the questions to be answered by the witness.</p> <p>The tenant accordingly introduced evidence showing that Augustus was a prisoner in the Suffolk jail; and that two days before this trial he visited him in the jail for the purpose if finding and procuring this deed ; and then proposed to prove by his own testimony that he inquired of Augustus, at this time, where the deed was, and what Augustus said in reply, but the judge, upon objection by the demandant, refused to permit him to do so. He then further testified that, after his visit to Augustus at the jail, he went to the house of Augustus, and with the wife of Augustus looked over and examined some papers shown to him as papers of Augustus, and was unable to find the deed.</p> <p>“ The tenant asked for and obtained a writ of habeas corpus by which Augustus was brought from the jai and put upon the stand as a witness; and his counsel asked Augustus if he had at any time seen a deed dated January 19, 1861, executed by the tenant to him; but the witness declined to answer the question, and, upon being asked why he so declined, replied, because the answer would tend to criminate himself. The tenant’s counsel then put into the hands of the witness the office copy of the deed, and asked him when he last saw the original deed of that copy; and he replied that he did not know. The witness was asked where the original deed then was, and what he had done with it; and replied that he did not know, and then went on to say that all of his old papers, together with his clothing, were attached two years before that time, and sold by a certain constable to different parties, and whether this deed was among these papers he did not know, and that he had no papers at the present time but such as had accumulated since two years ago.</p> <p>“ The tenant’s counsel then recalled the tenant as a witness, and again, after showing him the office copy of the deed, asked him whether he had ever seen, signed or executed the deed of which that was an office copy. The demandant again objected to the interrogatories, because the original deed was not produced and the nonproduction properly accounted for; and the judge sustained the objections of the demandant, and refused to allow the inquiries to be put to and answered by the witness, upon the ground that the testimony did not satisfy him, either that proper search had been made for the deed, or that the tenant could not produce it if he desired to do so.</p> <p>“ The tenant then testified that ever since 1860 he had lived in and occupied the premises as his own, claiming and using them as his own and not admitting the right or claim of any one else, paying the taxes upon the same; that he had never^ spoken with the demandant in his life, and that neither Augustus, nor the demandant, nor any other person, had, during that time, until the bringing of this action, interfered with his possession, control of or claim to the estate. The counsel for the tenant thereupon asked the judge to instruct the jury that, if they believed the above testimony of the tenant, it showed that Augustus was disseised at the time of giving the mortgage to the demandant, and the mortgage deed given under such circumstances would be inoperative and void, and invalid to pass any title or estate in the premises to the demandant. But the judge refused so to rule, and did rule and instruct the jury that the office copy of the deed from the tenant to Augustus was - evidence of the conveyance of the estate; that, if the tenant remained in possession afterwards, he was a tenant at sufferance to Augustus; and that there would be no evidence of a disseisin in this case, without proof, on the part of the tenant, that he gave notice to Augustus, before the mortgage was made, in some form, by act or word, that he was holding in defiance of, or repudiated the title of, Augustus.”</p> <p>The verdict was for the demandant, and the tenant alleged exceptions.</p>

Contract. At October term 1869 of the superior court the defendant was defaulted, and, by consent of parties, the court ordered that judgment should be entered for the plaintiff at the end of the term.

Replevin of household furniture. Writ dated December 18 1868. At the trial in the superior court, before Lord, J., the following facts appeared: Charles H. Watriss, the owner of the furniture, mortgaged it in November 1866 to Joseph Willard, under whom the defendant justified ; in December 1866 mortgaged it to the plaintiff, expressly subject to Willard’s mortgage; and on February 28 1868, filed his petition in bankruptcy.

<p>Contract to recover $50 for selling an estate for the defendant. Trial in the superior court, before Lord, J., who made a report of the case for the determination of this court, of which the material part was as follows:</p> <p>“ The defendant was owner and keeper of a bar-room which he was desirous of selling; the plaintiff was a salesman in a clothing store, and was in the habit of visiting the defendant’s bar-room frequently to purchase liquors ; and on one occasion, when several were present, the defendant said to the plaintiff, < If you will obtain a purchaser for my place, I will give you $50.’ When the defendant made the offer, the plaintiff neither said nor did anything to show to the defendant that he accepted the offer, or would do anything to effect a sale. Within a few days after, the plaintiff told John Bower that the defendant wished to sell, and went with him to see the defendant, but failed to find him. Afterwards Bower found the defendant, and purchased the place for $1200. The defendant did not know till after the sale that the plaintiff informed the purchaser that the defendant desired to sell, and the first information which he had on the subject was after the sale, when the plaintiff called upon him to pay $50 for finding a purchaser.</p> <p>" Upon these facts, which were admitted by the parties, I ruled that the plaintiff, not being a broker, and not having in any manner signified his acceptance of the defendant’s offer, and the defendant being wholly ignorant that he had done oi attempted to do anything to aid in the sale till after the sale was completed, could not recover;” and the jury returned a verdict for the defendant.</p>

<p>Contract against Jacob K. Lunt and John R. Cummings on the following agreement signed by the plaintiff and the defendants: “ I, Edward A. Costigan, agree to build a pilot boat, as per model and specifications furnished, for John R. Cummings and Jacob K; Lunt. Jacob K. Lunt is to pay for one half said pilot boat. I will furnish good stock and good workmanship in said pilot boat, and finish her internal arrangements, and to be according to specifications and to the satisfaction of said John R. Cummings and Jacob K. Lunt; and I, Edward A. Costigan, of the first part, agree to furnish and finish complete the above pilot boat for the sum of $5200; and we, John R. Cummings and Jacob K. Lunt, of the second part, agree to pay the said Costigan, of the -first part, the sum of $5200, each his one half, in instalments, as follows: We shall pay the said Costigan the sum of $1500 when the above pilot boat shall be frame, and when she is planked up we will pay the sum of $1500, when she is caulked we will pay the sum of $500, and when she is launched and complete and delivered of all lien laws, we will pay the sum of $1700, being the balance due on said contract.” The declaration contained a count against both de fend ants for the amount of the first instalment, and also counts against each defendant for half of the first instalment.</p> <p>At the trial in the superior court, before Reed, J., the plaintiff’s counsel, in opening the case to the jury, stated that he expected to prove “ that the plaintiff, after the making of the contract declared upon, expended nearly $3000 for materials and labor in the construction of the boat; had to the satisfaction of the defendants proceeded so far with it as to become entitled to the first instalment, as provided in the contract, and had various parts of the boat ready to go in, when sufficiently advanced to receive them; that the defendants declined to pay the instalment then due, and gave the plaintiff notice that they would not take the boat, and not to finish her for them or on their account; that the plaintiff, on the receipt of this notice, having no means to complete the boat, ceased to work upon her, and at the time of the commencement of this suit the frame and the other parts, designed for the boat remained in the condition they were in when the plaintiff" received the notice; that the boat was to be built for a special purpose, and such boats are not built and kept for sale; and that all the work done and materials prepared for the boat were of little or no value in the market or to the plaintiff.”</p> <p>Upon the facts as stated in this opening, the judge intimated an opinion that the defendants were not jointly liable on the contract, and that no action could be maintained against them jointly thereon ; and, by the consent of the parties, he reported this question and the question of the measure of damages, if the plaintiff was entitled to recover anything upon these facts, for the determination of this court.</p>

<p>A recognizance taken under the Gen. Sts. c. 124, § 10, after the passage of the St. of 1861, c. 112, is not invalid by reason of being conditioned that the debtor will deliver himself up for examination, “ giving notice of the time and place thereof in the manner provided by the 124th chapter of the General Statutes,” without referring to the St. of 1861.</p>

<p>Tort for seducing the plaintiff’s minor daughter, “ whereby she became sick and unable to render • service to the plaintiff.” Trial in the superior court, before Lord, J., who allowed the following bill of exceptions:</p> <p>“ The declaration contained no allegation, and it was not contended, that the defendant’s seduction of the plaintiff’s daughter was followed by pregnancy or any sexual disease. Evidence was offered to show that, by reason of the seduction, and the general injury to the health of the daughter consequent thereon it became necessary for the plaintiff to send her to New York for her health, and that, by so sending her, the plaintiff incurred great expense; together with the loss of her services. But the judge excluded this evidence, ruled that the action could not be maintained, and directed the jury to return a verdict for the defendant, which was done ; and the plaintiff alleged exceptions.”</p>

Bastardy process. In the superior court, the defendant moved to dismiss the complaint on the ground of insufficient service of the warrant, and in support of his motion produced the record, from which it appeared that the defendant was arrested by a deputy of the constable of the Commonwealth on a warrant issued from the municipal court of Boston and addressed to the sheriff of Suffolk, or his deputies, or to either of the constables of Boston; but Devens, J., on inspection…

Bill in equity by the executors of the will of Edward P. Bancroft, praying for instructions as to the payment and distribution of his estate in their hands.

<p>A. B. deposited in a savings bank a sum in his own name, and a like sum in the’name of “A. B., trustee for C. D.,” who was his daughter; and always retained the pass-books in his own possession. In a suit by the daughter, after his death, against the bank, for the sum deposited by him as trustee for her, paroi evidence was offered to show that both deposits were his money, and that one was made in his daughter’s name because the amount of both exceeded the sum which the law allowed the bank to hold for a single depositor. Reid, that the evidence was admissible, notwithstanding that a by-law of the bank, assented to by A. B., provided that any depositor might designate at the time of deposit for whose benefit the same was made, and should be bound by such condition; and that, upon the facts, the plaintiff could not recover.</p>

<p>One who has agreed with another to assume and pay a claim against him, but has neglected for two years to do so, may be sued by him on the agreement without a demand from him for the payment.</p> <p>The refusal of a party to a suit, when testifying as a witness, to answer a material question, on the ground that it might criminate himself, is competent evidence against him.</p> <p>On an issue between seller and purchaser of intoxicating liquors, whether the sale was in violation of a statute which forbids the sale of such liquors except by the manufacturer or a person having a license, and except to municipal officers, or for medical, mechanical or manufacturing purposes, or for sacramental uses, or made from fruit grown within the state, the refusal of the seller to testify whether he had a license, on the ground that his answer might criminate himself, and evidence that the liquors were part of his stock in trade as a druggist, and that the subject of the sale was the entire stock, will warrant a jury in finding that the sale was illegal.</p>

<p>Petition by George P. Carter and others for the appointment of commissioners under the St. of 1869, c. 161, which provided that the Cambridge and Brookline Bridge should become a public highway upon the acceptance by this court of the report of commissioners to be appointed by it to assess the damages to any person or corporation by reason of laying out the highway, after giving due notice to the counties of Suffolk, Norfolk and Middlesex, the town of Brookline and the city of Cambridge ; that such damages, and the expense of executing the statute, should be paid “ to the parties entitled thereto, by the said counties, or by such of them, or by such cities or towns therein, as the said commissioners shall determine, taking into view the uses made of said bridge and the condition thereof; ” and that the commissioners might make such orders as to them should seem expedient “ for the future maintenance and rebuilding of said bridge and for operating the draw therein,” and might “ order that the expense thereof should be paid and borne by said counties, cities or towns, any or all of them, as to the said commissioners shall seem expedient and just, taking into view the uses made of said bridge and the condition thereof.” Commissioners were appointed and made their report, in which they assessed $7500 as the damages to be paid to the proprietors of the bridge, two thirds by the county of Middlesex and one third by the county of Norfolk, and awarded that Cambridge and Brook-line should rebuild or repair the bridge so as to render the same reasonably safe and convenient for public travel, and forever after maintain the same, Cambridge to rebuild or repair and maintain the bridge north of the dividing line through the centre of the draw, and Brookline to rebuild or repair and maintain the bridge south of said line; and that “in respect to the expenses to be incurred by the town of Brookline in carrying out the above award and order, so as to render ” the bridge “ reasonably safe and convenient for public travel,” there should be paid to the town $5750, two thirds by the county of Middlesex, and one third by the county of Norfolk, to be “ due and paid by them respectively to said town of Brookline on the acceptance of this report.”</p> <p>The county of Middlesex objected to the acceptance of the report; and the case was reserved by the chief justice for the determination of the full court.</p>

<p>Information in equity by the attorney general, on behalf of the Commonwealth, and at the relation of Richard Price, to restrain the defendants from engaging in or carrying on any business other than the cutting, storing and selling of ice, Hearing, on a motion for an injunction, before the chief justice, who reported the case as follows:</p> <p>“ The company was organized in 1861, under the Gen. Sts. e. 61, for the purpose of cutting, storing and selling ice. Its capital stock was fixed at $360,000. It has carried on this business ever since, but has also carried on various other branches of business ; has been in the habit of chartering vessels for the East Indies, loading them with ice so far as was proper, and completing the cargo by purchasing and exporting kerosene oil tobacco, rosin and lumber; and has also imported merchandise of various kinds, including paddy, jute, linseed and tea. It has also erected buildings, and placed machinery in them, which cost about $400,000. Some of the machinery is for the manufacture of tobacco, but the manufacture was discontinued about two years ago. Some of it is for cleaning rice, some for the manufacture of jute into gunny cloth, and some for the manufacture of linseed into oil. These branches of business it still carries on, and the capital invested in them is three or four times larger than its capital stock. The business is connected with the exportation of ice, and has increased the profits of the company, but does not appear to be necessary to its legitimate business. It has imported two cargoes of tea, worth $300,000, which had no connection with the ice trade. It does not appear that any of the creditors of the company are in danger of losing by it, and there is no objection to its proceedings, except that they are not authorized by its act of incorporation and are alleged to be against public policy for that reason. I report the case for determination upon the questions, whether this information in equity can be maintained, and, if it can be maintained, whether a temporary injunction ought to be issued, upon the facts above stated.”</p>

<p>Contract for money had and received; to recover the balance of the proceeds of accepted bills of exchange delivered by the plaintiff to the defendant with directions to collect them and apply to the payment of debts owing from him to the estate of her husband, of which she was administratrix, so much of their proceeds as should be necessary for that purpose. Trial, and verdict for the plaintiff, in the superior court, before Brigham, J., who allowed exceptions which were argued and overruled in this court at March term 1868, as reported 99 Mass. 334.</p> <p>After the argument of the exceptions, and before the judgment overruling them was entered in the superior court, the defendant filed her petition in bankruptcy, under the bankrupt act of 1867, c. 176, in the district court of the United States for this district; and thereupon, on her motion, the superior court ordered a continuance of the case to await the result of the bankruptcy proceedings. In those proceedings a discharge was granted to her in due course of law; which discharge she then pleaded in bar of judgment in this action.</p> <p>The question whether this plea was valid was submitted to the superior court on facts agreed substantially as above stated, and ruled in favor of the defendant; and the plaintiff appealed.</p>

<p>A , having given a mortgage of goods to B. which provided that if A. should attempt to sell them B. might take immediate possession, made, and delivered simultaneously, thiee mortgages of them, to C., D. and E. severally, each containing a clause that “ this mortgage is of the same date, given at the same time, and to be recorded with” the two others, “ all of which are alike in time, and neither is to have precedence of the other, but te- be alike security to each,” and each expressed be subiect to B.’s mortgage. 1. that C., D. and E. took title under these mortgages as tenants in common, and might join in one action for a conversion of the goods; 2. that the title which they took was in the right of A. to redeem the goods from B.’s mortgage, and hence they were estopped by the Gen. Sts. c. 151, § 1, to contest its validity on the ground of an omission to record it; and 3. that the execution of their mortgages gave B. a right to take possession of the goods, and to maintain possession against them in the absence of any payment or tender of the amount due on his mortgage.</p>

Contract, by Richmond Lindsay, William H. Young and Henry P. Rich, partners under the firm of Lindsay, Young & Company, on a promissory note made by the defendant March 18, 1868, payable in six months to the order of Henry E. Carlton, and by him indorsed in blank. Writ dated September 30, 1868.

<p>A pledgee with power to sell the goods and apply the proceeds on the debt does not forfeit his lien by employing the pledgor as agent to make the sale, allowing him to contract for it in his own name, and delivering the goods on his order to the purchaser. •</p>

<p>Contract for the value of 250 shares of stock in the Boston Water Power Company, alleged to have been bought by the defendants, who were brokers in Boston, for the plaintiff, who was an inhabitant of Providence in Rhode Island, and who paid the defendants for the shares, but to whom they refused to deliver them on demand.</p> <p>At the trial, before Gray, J., without a jury, the plaintiff introduced evidence tending to show that on July 26, 1866, he employed Henry C. Whittaker, a broker in Providence, to procure the purchase of 500 shares of the stock for him, and Whit-taker the same day gave the defendants by telegraph and letter an order to make the purchase ; that the defendants bought 200 shares for cash, and 50 shares on a ten days’ buyer’s option, and on July 26 and August 6 respectively drew on Whittaker for the cost of them, which Whittaker paid (the plaintiff reimbursing it) and left the stock in their hands; that the other 250 shares were bought by the defendants on a thirty days’ buyer’s option; that of these, before the end of the thirty days, on orders received through Whittaker, they called in and paid for 150 shares, a certificate for 50 of which they sent to Whittaker (the plaintiff having reimbursed their cost) and sold 100 at a loss of $661; that three days after maturity of the option on the other 100 shares the defendants took and paid for them, and after-wards tendered them to Whittaker, who declined the tender, he having notified the defendants, before they took them, that his principal was unwilling to accept them by reason of their nondelivery within the term of the option ; and that on Septemner 26 the plaintiff came to Boston and made demand on the defendants for the 250 shares which were paid for on July 26 and August 6, and offered to pay the loss on the 100 shares sold, but the defendants refused to deliver the 250 shares to him, denied any knowledge of him in the transaction, and claimed a right to hold them as security for sums owing to themselves from Whittaker on account of purchases of other stocks. The other material facts appear in the opinion.</p> <p>The defendants offered to show the state of their account with Whittaker on September 26; that he was then greatly in debt to them on account of these other purchases; and that they made them relying on the 250 shares of Water Power Company stock for security. But the judge excluded the evidence; and ruled and found that the plaintiff was entitled to recover the market value of the shares on September 26, the date of his demand for them, with interest from that date, deducting the loss on the 100 shares sold ; and reported the case to the full court, to be sent to an assessor to fix damages, if the ruling was correct; otherwise, a new trial to be granted.</p>

<p>A writing, in which A. “ agrees to sell ” to B. chattels of A. then being, and described aa being, in B.’s possession, for a sum payable on or before a certain day, and B. “ agrees to purchase the above named articles as above stated, and pay for the same as fast as he can,” and pay the sum before the specified day or return the chattels in good condition, free from any debts contracted by him, is an agreement for a present sale.</p>

Contract for breach of an agreement signed by the parties January 25,1869, for the sale by the plaintiff, and purchase by the defendant, of a parcel of real estate abutting on Concord Street in Boston.

<p>Bill in equity filed July 8,1869, by one of the children of Francis Amory, against the trustee and other persons interested under his will.</p> <p>The bill alleged that Francis Amory died in July 1845, leav-. ing three children, Cornelia, Francis and the plaintiff, and leaving a will, which was duly proved and allowed in the probate court for Norfolk, and, after certain devises and legacies immaterial to this case, contained four successive items, the material parts of which were as follows:</p> <p>“Item 12. I give, bequeath and devise to John A. Lowell, Henry Codman, Francis Amory, Jr., and George A. Goddard, and to the survivor and survivors of them, his heirs, executors and administrators, the dwelling-house and farm, situate in Milton aforesaid, now occupied and improved by me, containing about two hundred acres, more or less, as may appear by the title deeds; together with all the produce, stock, farming utensils, and other personal property in and upon the farm, and also all the furniture, plate, carriages, pictures, stoves, and other personal property, whether more or less, in the dwelling-house and buildings upon the same, to have and to hold the same in trust; and, after defraying all expenses of repairs, taxes, and insurance, then to permit my daughter, Cornelia Goddard, wife of George A. Goddard, to occupy, use and improve the said real and personal estate, during the term of her natural life; and at the decease of my sari daughter Cornelia, then in trust to permit my son, Francis Amory, Jr., to have the use and improvement of the, same for and during his natural life; and at the decease of my son Francis, then in trust, to permit my son George W. Amory to have the use and improvement of the same for and during his natural life; and lastly, at the decease of the survivor, to grant, surrender, and deliver over to the children of my said sons and daughter before named, who shall then be living, the trust property last aforesaid, to be equally divided among them, share and share alike.”</p> <p>“ Item 13. I give and devise to John A. Lowell, Henry Cod-man, Francis Amory, Jr., and George A. Goddard, and to the survivor and survivors of them, their heirs, executors and assigns, all the rest, residue and remainder of the estate, real, personal and mixed, of whatever name or nature, kind or sort, of which I shall die seised and possessed ; to have and to hold the same, as joint tenants, to and upon the following uses, trusts and purposes: that for and during the life of the children of the said Francis Amory, living at his decease, and during the life of the survivor of them, the said trustees, their heirs and assigns, shall and will take suitable care and charge of the said real estate aforesaid, and from time to time make such leases of the premises, or any part thereof, upon such terms, time and conditions as they shall think proper and most beneficial for my children; and, after deducting all necessary expenses for repairs, taxes, public charges, and also any expense incurred in insuring the premises against fire, the net proceeds or net income of said estates they will divide equally among my children, towards their support and maintenance;” “ provided, however, it is understood that whenever any of my said children shall decease, their share of said income, during the life of said survivor, shall be appropriated in such way and manner, to such uses, as by any last will and testament, or by any appointment in writing revocable as a will, they may order and direct, and if there be no children and no will or appointment, the same shall enure as on a strict settlement, and with like limitations, to the use of my surviving child or children.”</p> <p>“ Item 14. And said devise is on this further use and trust, that, from and after the decease of my surviving child, the said estate hereinbefore devised to my said trustees shall be equally distributed and divided among the children of said sons and daughter, share and share alike ; or if any such will or appointment shall have been made by my said children, the disposal, order and direction of such will or appointment touching the said reversion shall be observed and followed; ” “ and if there be no children as aforesaid, nor any will or appointment concerning the premises, then on strict settlement as aforesaid, and under the same limitations, in trust for my surviving child and his and her heirs.”</p> <p>“ Item 15. I do hereby declare that if only one of my .said trustees before named shall be willing to accept the trust, the foregoing devise is hereby made to him only, his heirs and assigns, in trust, to and for the uses, trusts and purposes aforesaid.”</p> <p>The bill further alleged that the defendant Lowell alone, of the four trustees named in the first two items above quoted, accepted the trusts in said items declared ; that he continued ever since in the execution thereof; that all of the real estate and personal property named in item 12 came into his possession, and had ever since continued therein; that he was making no such use of said real estate as to secure any income from it to defray the expenses of repairs, taxes and insurance thereon; that he had permitted various acts of waste thereon, in the improvident cutting of wood and otherwise, and had suffered the land to deteriorate for want of proper husbandry, and the dwelling-house, farm buildings and fences to become dilapidated for want of proper repairs; that he had paid out of the residuary fund created by item 13 the expenses of taxes and insurance on said real estate named in item 12, during the whole past term of the trust; that on April 17,1869, the plaintiff, having during the month previous been informed for the first time of the duty and liability of the trustee in the premises, requested him to cause the needful repairs to be made, and to refund to the plaintiff one third of the amounts so paid for taxes and insurance, with interest; but that he declined to comply with these requests, and pretended that he was under no duty or liability to make repairs or cause them to be made on the .dwelling-house and farm, and that he had a right to defray the expenses of taxes and insurance thereon out of the residuary fund; wherefore the bill prayed for a decree to compel the trustee to refund the sums demanded by the plaintiff, and that the trustee might be instructed and directed as to bis duty in all the premises, and for general relief; and the testator’s daughter Cornelia and son Francis, together with the grandchildren living, and a guardian ad litem, of persons not in being to whom contingent interests might be devised by the will, were joined with the trustee as defendants.</p> <p>All the defendants appeared and answered ; and in their answers admitted the plaintiff’s allegations of the provisions of Francis Amory’s will, and submitted themselves to the judgment of the court.</p> <p>Lowell, in his answer, denied that the real estate named in item 12 of the will could have been managed by him so as to yield an income to pay the expenses of repairs, taxes and insurance thereon, and at the same time have permitted the testator’s daughter to occupy, use and improve it, or that it could be leased for a rent equal to those expenses; alleged that it was the testator’s intention that those expenses should be defrayed from the income of the residuary fund, and that the plaintiff had acquiesced in that course of payment as to taxes and insurance, and had approved accounts rendered by the trustee in which they had been so charged; alleged, as to the personal property in and about the dwelling-house and farm, that he had permitted the testator’s daughter to hold and use it; denied the plaintiff’s allegations of waste and neglect in the management of the farm, but admitted that some of the buildings needed repairs; and prayed for instructions whether he should make such repairs and pay for them out of the income of the residuary fund, as the testator’s daughter sometimes claimed that he should do;</p> <p>The testator’s daughter admitted that she was holding the personal property referred to in item 12 of the will, and ever since the testator’s death had occupied the farm herself, or taken the rent of it; denied the plaintiff’s allegations of waste in its management: alleged that she had spent the greater part of the rents she derived from it, in improvements and keeping it ill good condition; denied that any of the buildings had been suffered to remain without repairs, except such as were not needful for the proper conduct of the farm; alleged that the proceeds of whatever wood had been cut and sold from the farm had been applied by her towards expenses she had incurred in repairing and altering the other buildings; admitted that the dwelling-house and principal barn were now in need of repairs ; and prayed that the trustee might be directed to make such repairs and charge them to the residuary fund, and also reimburse to her out of that fund the excess of her own disbursements for repairs over the amounts received by her from the sale of wood as aforesaid.</p> <p>Issue was joined on the answers, and the case heard by Colt, J., and reported substantially as follows:</p> <p>The total of the appraisement of the testator’s estate, real and personal, in the inventory returned by the executor, was $203,800, all of which except $7,325 was appraised on .real estate ; and the debts amounted to $60,000. The dwelling-house and farm in Milton were appraised at $10,000. The farm contained a hundred and seventy acres, and on it, besides the dwelling-house, which was built of wood, were a wooden barn and other wooden buildings, useful and necessary in carrying on the estate as a farm, some of which were of considerable age. All the real estate left by the testator has greatly increased in value since this appraisement.</p> <p>Ever since assuming the trust, the trustee has allowed the testator’s daughter to occupy the dwelling-house and farm, and, when not personally occupying them, to collect and retain the rents of them. He has paid out of the income of the residuary fund the taxes and insurance on the dwelling-house and farm, and presented yearly accounts to the plaintiff and the other children of the testator, in which those expenses were charged against that income, and which the children returned with their signatures under the word “ approved.” She has paid for all the repairs and improvements which have been made on the dwelling-house and farm during her occupancy; and the barn and some of the other buildings are in need of extensive repairs.</p> <p>“ The defendants offered evidence that said Milton estate could not have been so managed and occupied by the testator’s daughter as to produce income sufficient to pay taxes, insurance and repairs. The plaintiff offered evidence to the contrary; and also to the fact of waste in the improvident cutting of wood and neglect of buildings and fences, and contended that the trustee was responsible therefor. The plaintiff further offered evidence that he assented to the accounts of the trustee under a mistake of his rights, and that the last account of the trustee, covering a time anterior as well as subsequent to the filing of the plaintiff’s bill, was not assented to by him ; and he contended that the taxes and insurance on the Milton estate should have been paid out of the income thereat, and not out of the income of the residuary fund. Without going into a hearing of the evidence offered, I reserve the case, with the above offers of proof, for the consideration of the full court, for such order thereon as law and justice may require.”</p>

Bill in equity filed June 26,1869, to establish a resulting trust in favor of the plaintiff in a surplus of the proceeds of the sale of a house and land by a mortgagee, after deducting the amount due on the mortgage and the charges of the sale; which house and land were bought by the plaintiff’s wife in 1863, when the plaintiff was in Cuba, with mopey which he sent to her, and the deed taken in her name subject to the mortgage.

Bill in equity filed February 12,1869, under the Gen. Stsc. 113, § 2, against Samuel H. Morse, the National Revere Bank and the executors of the will of Eliza Morse, to reach, and apply in payment of a debt due from Samuel H. Morse to the plaintiff, and as property of the debtor which could' not be come at to be attached or taken on execution in a suit at law against him, five shares in the capital stock of the bank, which were specifically bequeathed to him by the testatrix.

<p>Bill in equity filed March 7, 1868, against Asa P. Morse and George W. Blood by the administratrix of the estate of Calvin Aiken, who died in Boston December 25,1860, to redeem land on Essex Street in Boston from a mortgage made in 1857 to Morse by the intestate and of which he died possessed of the equity of redemption. The case was reserved by Ames, J., for the determination of the full court, on the bill, answers and agreed facts, and is stated in the opinion.</p>

<p>A testator, in his will, named an executrix and an executor, and gave them all his estate in trust to accumulate for his children for ten years, paying meanwhile the expenses of their support out of the income and investing the balance thereof. In a separate clause he provided that if it shall be found necessary or expedient to dispose of any of my real property for the benefit of the estate, in the judgment of my executrix and executor, I hereby give them full power to do so and invest the/sums so received for the benefit of my children.” Held, that this power was given to the executrix and executor as an incident of their office, and upon the resignation of one of them the other might exercise it singly.</p>

<p>A and B. agreed in writing, concerning a tract of land belonging to A., which was occupied by squatters, as follows: that if the claims of the squatters could be extinguished by compromise for a reasonable sum, A. should extinguish them within sixty days after B. should pay him $5000, but if it should be impracticable to settle with the squatters on reasonable terms, A. should eject them by legal process, and in such case B. should pay him such sums as mi^ht be needed for the purpose, not exceeding in all $2000, and farther, if A. should find that.he could effect a settlement with them, and should wish for said $5000, or any part thereof, for that purpose, B. should pay him said $5000, or such part thereof as he might desire, within thirty days after notice from him; that A. should convey the tract to B. trfien B. should finish paying him $50,000, including the $5000; but that B. should not incur any personal liability for payment of the $50,000, or any Dart thereof “ except the aforesaid $5000 or the aforesaid $2000 as the case may be.” A, thereupon proceeded to compromise with some of the squatters; and paid C., one of them, $800 for a release of his claim in the tract, and as part of the bargain agreed to purchase from him for $1000 a lot of land outside of the tract. Then, having effected no final settlement with the squatters, he made a supplemental written agreement with B., modifying the terms of sale of the tract in certain particulars not relating in any material clause to the squatters, and concluding thus: “ This modification of the agreement is made with the understanding that B. is to pay A. $1500 on said contract within sixty days hereof, according to the terms of his promissory note of even date herewith, and also the further sum of $1000, if A. shall require, within sixty days from this date, for the purpose of settling with said squatters, provided A. shall give him thirty days’ notice of his requiring the same. If such payment or payments shall not be so made, this modification is to be void.” Held, 1. that B. did not agree to pay A. $5000 absolutely, but only such part thereof as A. should desire and need to effect a settlement with the squatters; 2. that the $1500, paid by B. on his promissory note of even date with the modification of the original agreement, was not paid as the consideration of said modification, but to be applied by A. towards the $5000 or such part of the $5000 as was needed to -settle with the squatters; 3. that A. could not charge against the $5000 the sum which he promised to pay C for land outside of the tract; and 4. that any part of the $5000 which B. paid A. in consequence of A.’s representations that he needed it to settle with the squatters, but which in fact was not needed or used for that purpose, could not, without B.’s consent, be retained by A. and applied as a part payment of the contract price of the tract.</p> <p>B., having agreed with A. to buy a tract of mining land, belonging to A. but occupied by squatters, and to pay A. so much, not exceeding a certain amount, as should be needful to settle the squatters’ claims, and having paid sums to A. on account of this amount, and incurred other expenses relating to the land, sued A. in tort for deceit, and alleged that A. obtained the agreement from him by false statements of the value and minerals of the tract; that said sums were paid under and in consequence of the agreement thus obtained, and because A. assured him that they were needed and to be used to settle the squatters’ claims, when in fact they were neither so needed nor used, but misappropriated by A. to his own use; and that in consequence of said misrepresentations the other expenses were incurred; and he joined a count in contract, alleged to be for the same cause of action, which set forth the agreement and his payment of said sums to A. under it, alleged that he paid them in consequence of the false representations and statements set forth in the first count, and sought to recover them as money had and received by the defendant to the plaintiff’s use. At the trial, B. gave notice that he did not seek to recover anything from A. by reason of any alleged statements of A. touching the value or minerals of the land. Held, that, after striking out all such allegations, either count still set forth a good cause of action.</p> <p>On the trial of an action on counts in tort for deceit, and contract for money had and received, to recover sums paid under an agreement of the plaintiff to pay them to the defendant to be applied by him to a certain purpose if he should need and desire them for it, facts agreed showed that the whole amount of them was not needed or used by the defendant for that purpose, and the plaintiff testified that he paid them because the defendant represented to him that they were needed for it. In relation to one of the sums, the defendant requested a ruling that it could not be recovered if the jury should find that the parties believed that it was paid with the impression, created by the phraseology of the contract or otherwise, that it was not to be applied to that purpose; and on the whole case, he requested a ruling that there was no evidence to sustain the action. The judge refused the second request; declined to rule in the terms of the first request; an*i submitted the case to the jury with instructions which required them to find, in order to return a verdict for the plaintiff, that the payments made by him were made for the purpose named, and that he was induced to make them by false representations of the defendant that they were needed for it. Held, that the defendant had no ground of exception.</p> <p>On the issue between A. and B., whether B. was induced to pay A. money by false representations of A. that it was needed for a certain purpose, if A. contends that B., when he made the payment, did not understand that the money was to be used for that purpose but for another purpose, it is competent for B. to testify that he paid the money supposing that it was to be applied to the first purpose.</p>

<p>A., owning land, gave B. a bond for a deed of it. A religious society was afterward» formed, of which B. was treasurer. A. sold the land to the firm of 0. & D., and B. surrendered his bond and took from them another bond to convey the land to him upon his paying a certain, price for it on or before a specified day. After this day bad passed without such payment, the society, through a committee of which D. was chairman, built a meeting-house on the land, upon stone foundations set deep in the ground, procured in surance on it, and put furniture in it. G. was clerk of the society, and solicited subscrip tians towards the cost of the building, recommended purchases of the pews as a good investment, and spoke of the building as belonging to the society; it was the general ex pectation of the members of the society that C. & D. would convey the land to it for the price named in B.’s bond; and on the pastor’s asking for a conveyance in order to make the society secure, D. replied that it was in no danger, for it could remove the building when it should choose. After this, C. refused to convey the land to the society till its debts were paid. A creditor sued the society, and attached the meeting-house and furniture on his writ; recovered judgment; and assigned the judgment to C. & D., who directed the officer to sell the attached property on the execution, and were present at the sale. After the officer had received some bids, C. announced that he claimed the building as part of the realty, and should resist its removal by any buyer, and the officer declared that he did not warrant title to any of the property; but the sale proceeded, and the whole pronerty was bid off ior &n entire price, which the officer received, and out of it paid to C. & D. the amount of their execution, and delivered the key of the meetinghouse to the buyer as a symbolical delivery of the property. "The buyer gave the key to the sexton, with directions to take care of the property; and 0. then expelled the sexton from the building, and took possession of it, whereupon the buyer sued 0. for a conversion. Held, that the meeting-house was not built on the land as personal property, but was fixed to file realty; and that 0. & D. were not estopped to deny the buyer’s title In it</p> <p>Proof of the taking of exclusive possession of a building by a person who has a right te such possession, and of his putting a new lock on a door, the key of which he knows is held by the owner of some furniture in the building, will not warrant a finding of a conversion of the furniture by him, in the absence of any evidence that he ever made claim to the furniture or hindered its owner from removing it.</p>

<p>On the trial of an action for breach of an oral contract, a letter of the defendant to the plaintiff, offered by the latter to show admissions of the defendant that the contract was made and broken by him, is admissible in evidence, although it is one of a series of letters between the parties, all of which were in the plaintiff's possession, and sotne, including his own letter to which the one in question was a reply, he has voluntarily destroyed or refuses to produce; and the refusal of the judge to instruct the jury that, in the absence of those letters, and in view of their voluntary destruction by the plaintiff, they have a right to draw the most unfavorable inferences against the plaintiff as to thei* contents, affords the defendant no ground of exception, if the judge instructs them that the plaintiff’s failure to produce all the letters and destruction of some of them are circumstances to be considered in determining the weight and effect to be given to the letter produced.</p> <p>On the trial of an action for breach of a contract which both parties agree was terminated at a certain time, and differ only as to whether the termination was by mutual consent, the refusal of instructions to the-jury, which were framed on the assumption that the contract subsisted some months later, affords no ground of exception.</p>

<p>A judgment recovered on the merits, by a laborer, for the full amount of his claim, in an action against a married woman and her husband for work done on her separate estate, which she defended on the ground that he was negligent in doing the work, though without seeking to recoup therefor, is a bar to a subsequent action by her against him for such negligence.</p>

Contract on the replevin bond taken in the case of Tuite v. Stevens, 98 Mass. 305. At the trial in this court, before Morton, J., the plaintiff put in evidence an auditor’s report, the material parts of whi.ch were as follows : “ The plaintiff in the presentc action, being defendant in the original replevin suit, recovered judgment against Tuite, the plaintiff therein, for $1448.02 damages, and $224.80 costs, and for a return of the goods replevied.

<p>Une who, for and at the request of a partnership, and knowing that they intend to negotiate them as their business paper for the purpose of raising money to be used in their business, makes promissory notes payable to their order, and signs to each of the notes as maker the name either of a person whose name he has no authority to sign or use, or of a fictitious person; but who is not proved to have used either of those names for the purpose of transacting other business, or to have held himself out to the world as doing business under either; is not liable in contract upon the notes as maker, to one who buys them from the payees before maturity for full consideration as their business papei, without knowing that they are signed by him or giving him any credit thereon</p>

Contract. Writ dated March 15, 1869. The declaration contained two counts, the first of which was as follows: “ And the plaintiff says that in March 1868 he bought of the defendants two hundred barrels of whi&rey, and agreed to pay therefor at the rate of $1.40 per gallon for one hundred barrels of the same, and $1.45 per gallon for the remaining one hundred barrels ; and in consideration thereof the defendants sold said two hundred barrels at said prices to the plaintiff,…

Contract on a judgment recovered by the plaintiff in an action for a personal injury inflicted on him by the defendants. Writ dated May 29, 1869. Defence, a release and discharge executed by Moses G. Cobb to whom the plaintiff had assigned his claim before the judgment. At the trial in the superior court, Reed, J., refused to rule that the assignment was void, and directed a verdict for the defendants. The plaintiff alleged exceptions.

Contract against Bates as surety and Edward Crane as principal, on a recognizance entered into by them in the usual form under the Gen. Sts. c. 124, § 10, before a master in chancery, upon the application of Crane to take the oath for the relief of poor debtors, in order to obtain release from arrest on an execution, issued in favor of the plaintiff upon a judgment recovered by him against Crane in the superior court, for $3450.

Contract, begun January 1,1869, against the sureties on a bond alleged to have been signed and sealed by them, together with the principals named therein, as follows: “ Know all men by these presents, That we, Carl Mattoni, Gottfried Reichardt and Leopold Babo, all of Boston in the county of Suffolk and Commonwealth of Massachusetts as principals, and Leopold Speidel and Isaac Samuels, both of said Boston, as sureties, are holden and stand firmly bound and obliged unto…

Contract. The declaration alleged that the parties agreed that the plaintiffs should permit the defendant to use and occupy their shop in Boston, and should render certain services to him in his business, and in consideration thereof he should pay them rent, and for repairs and furniture, and also a quarter of the net profits of the business ; that the plaintiffs faithfully performed their part of the agreement, and there were net profits resulting from the business; but…

<p>After a defendant has taken judgment and execution for costs in an action in the superior court, the court has no jurisdiction, on his petition, even with the assent of the plaintiff, to bring forward the action upon the docket to a subsequent term, and permit him to return the execution and obtain a new taxation of his costs and another execution for them as taxed anew; and such a petition is an independent proceeding in which the respondent is the prevailing party, and costs may be allowed to him therein under the Gen. Sts. c. 156, § 16, in the discretion of the court, which is not subject to exceptions.</p>

” See 101 Mass. 378. The action was brought originally as an action of contract, and the plaintiffs were then allowed to amend their declaration so as to proceed in tort. To the original declaration, and to it as amended, the defendants answered severally.

<p>Petition filed October 23, 1869, for a review of a judgment recovered against the petitioner by the respondent in the superior court at October term 1867.</p> <p>At the hearing, before Morton, J., it appeared “ that the original writ was returnable to the superior court at October term 1859, and was served by a copy left at the last and usual place of abode of the petitioner in Worcester, on September 17,1859; that the writ was duly entered in court at the term at which it was returnable, and the petitioner, not appearing, was defaulted, and the case continued for judgment from term to term till October term 1867, when judgment was rendered.” It was admitted “ that, when the writ was served, the petitioner had long been, and was, a resident and living in Worcester, and was such resident in Worcester, and was within the Commonwealth, when such writ was served and when judgment was rendered, and has been ever since, and is now.” The petitioner introduced evidence tending to show “ that he never had any actual notice of the suit or of the judgment until within one year before the filing of the petition; that he had changed his residence to another house in the village where he lived, shortly before the service of the writ; and that the copy of the writ left by the sheriff might have been left at his former and not then abode;” and evidence to the contrary was introduced by the respondent.</p> <p>The judge ordered that the petition be dismissed, on the ground that it was not seasonably filed; and the petitioner alleged exceptions.</p>

Writ of error to reverse a judgment rendered by the superior court, at October term 1868, on a writ of scire facias against the plaintiff in error.

Contract in the name of the treasurer of Boston, by Henry P. Boynton, on the bond of Silas Warren as a constable of Boston for a year from September 26,1864, upon which the defendant’s intestate, Dewey K. Warren, was a surety. Writ dated October 26, 1868.

Three bills in equity by Gardner Brewer and twenty-four others, stockholders in the corporation chartered by the St. of 1858, c. 79, under the name of The Proprietors of the Boston Theatre. The bills were inserted in writs, each of which was dated June 21, 1869, and were filed August 2, 1869.

<p>Bill in equity against John Black’s executor, to redeem land ip Chelsea from a mortgage given by the plaintiff to the defendant’s testator in 1850. The answer claimed that $26,000, the face of the mortgage note, were due as the principal of the mortgage debt. The plaintiff, by an amendment to the bill, alleged that only twenty-four thousand dollars were advanced by the mortgagee, and that two thousand dollars were reserved by him as a bonus and as usurious interest. The defendant, in his answer to this amendment, alleged that he was wholly ignorant as to the alleged usury, and could neither admit nor deny it, but left the plaintiff to prove it; that, when he filed his answer, sc far from claiming, or intending to claim, any usurious interest he was utterly ignorant, as he still was, except for the allegation in the amendment to the bill, that he was claiming more than the-principal sum advanced on said mortgage with the interest justly due thereon ; that he always supposed and believed, and still supposed, believed and was informed, that the full value of the face of the mortgage note was advanced thereon; and he prayed that, if the plaintiff should prove that usurious interest was reserved by the mortgagee, the court might order the account made up on the basis of the sum actually advanced, which was all it was intended to obtain, and that the statutory penalties against usury might not be enforced against the defendant in his capacity as executor.</p> <p>The case was referred to a master, who found that two thousand dollars were reserved on the mortgage note by way of usurious interest, but that the defendant had no knowledge thereof till it was set up in the amendment to the bill. The other facts found by the master are sufficiently stated in the opinion. The mortgagee, who had entered to foreclose, contended that he should be allowed as compensation, not only five per cent, on the amount of rents with which he was charged, but also five per cent, on the amount expended by him in repairs and improvements; but the master allowed only five per cent, on the amount of the rents. Both parties excepted to the master’s report, and the case was reserved by Wells, J., on the pleadings, report and exceptions, for the determination of the full court.</p>

Writ of entry to recover land in Chelsea. Plea, nul disseisin. At the trial in the superior court, Lord, J., directed a verdict for the tenant on facts which appear in the opinion and the demandant alleged exceptions.

<p>Bill in equity filed October 16, 1869, by Otto Dresel, Anna . L. Dresel, his wife, and Wendell Phillips and Caleb W. Loring, the latter two as executors and trustees under the will of Louisa Loring,-mother of said Anna, to enforce specific performance by the defendant of the following written-agreement:</p> <p>“ This agreement witnesseth that Otto Dresel and Anna L. Dresel, his wife, and Wendell Phillips and Caleb W. Loring, trustees and executors under the will of Louisa Loring, of the first part, agree to sell, and Eben D. Jordan, of the second part, agrees to buy, the dwelling-house numbered 76 Chestnut Street in Boston, together with the land belonging thereto, [here followed a description of the premises by metes and bounds,] being the same premises conveyed in a deed from Edward Cabot, dated September 12, 1866, and registered with Suffolk deeds, lib. 884, fol. 260, and from George Higginson, lib. 887, fol. 12, for the sum of $22,000, payment to be made in the following manner: to wit, the said Jordan to assume the note of George Higginson, secured by a mortgage on the premises, for the sum of $10,000, made September 12,1866, to ran for three years, with .interest at six per cent, per annum, and to pay the balance, that is, $12,000, in cash, on the day possession of the premises is given. Possession to be given, and the papers to be passed, on or about May 20 now next ensuing. Ten days to be allowed for examination of the title; and a clear and satisfactory title to be given, or the within agreement to be null and void.</p> <p>“ Made at Boston this 21st day of April, a. d. 1869.</p> <p>“ Anna L. Dresel.</p> <p>“ Otto Dresel, by A. L. D.</p> <p>“ Wendell Phillips, ) Ex’rs under will</p> <p>“ C. W. Loring, ) of Louisa Loring.</p> <p>“ E. D. Jordan.”</p> <p>The following facts appeared by the bill, answer and evidence, on which the case was reserved by the chief justice for the determination of the full court:</p> <p>Edward Cabot, being seised of the premises in question, by his deed bearing date of September 12, 1866, referred to in the agreement, conveyed them to George Higginson for the consideration of $20,000. The certificate of the acknowledgment of this deed by Cabot bore date of September 5,1866, and attested that he acknowledged the deed on that day. Higginson, on September 12, 1866, after this conveyance, mortgaged the premises back to Cabot to secure payment of $10,000 of the purchase money in three years from that date, and on October 8, 1866, conveyed them to Louisa Loring (who was a widow) and the plaintiff Anna L. Dresel, on condition that he should be saved harmless from the payment of this mortgage. On October 31,1866, Louisa Loring and Anna L. Dresel conveyed an undivided third part of the premises to a third person, who on the same day conveyed the same to the plaintiff Otto Dresel. Louisa Loring died in 1868, leaving a will which was proved October 31,1868, and of which the plaintiffs Phillips and Loring were on that day appointed executors. In this will, after giving certain legacies, she gave all the residue of her estate to Mrs, Dresel.</p> <p>On April 21,1869, (the date of the agreement in question,) subject to the condition in the deed from Higginson, Otto Dresel and Mrs. Dresel were thus each seised of an undivided third part of the premises, and Mrs. Dresel, as residuary devisee under her mother’s will, of the other third, subject to payment of the debts, legacies and charges of administering the estate of the deceased. Otto Dresel was then absent in Europe, and Mrs. Dresel was living on the premises. The agreement was signed by all the parties, on that date, except that the name of Otto Dresel was subscribed by Mrs. Dresel, as indicated in the copy of it above set forth. It was the result of negotiations conducted with the defendant by James F. Curtis, a broker, who was employed by John G. King to sell the premises. Curtis was a witness for the plaintiffs, and on cross-examination, in reply to a question “ Whom did King represent in this matter if you know?” he testified: “ King represented Mrs. Dresel and Mr. Dresel, or perhaps I had better say he represented the owners of the estate, as they all wanted to sell.”</p> <p>It appeared by the plaintiff Loring’s testimony, that, immediately after the execution of the agreement, he, having been advised that Benjamin F. Brooks and Joshua D. Ball, attorneys, would act for the defendant in examining the title, called upon Brooks and informed him that the premises were owned, one third by Mr. Dresel, one third by Mrs. Dresel in her own right, and one third by her as residuary devisee under her mother’s will and subject to a lien for the debts of the testatrix; and proposed to give, in fulfilment of the agreement, a warranty deed by Mr. and Mrs. Dresel of the whole premises; but Brooks declined to regard such a deed as a satisfactory conveyance of them, and said that Loring “ had better proceed in a legal manner.” Thereupon Loring prepared a warranty deed of two thirds of the premises, to be executed by Mr. and Mrs. Dresel, which was expressed that the premises were “ conveyed subject to a mortgage to Edward Cabot for $10,000,” describing the Higginson mortgage, “ which said principal sum, with the interest due and to grow due thereon, is to be assumed and paid by said grantee and his representatives as his own debt, the same forming part of the consideration above expressed, and this deed is upon the condition that said Jordan shall pay said principal and interest of said mortgage debt, and our heirs, executors and administrators shall be forever indemnified and saved harmless from payment of said principal and interest and every part thereof; ” and concerning the deed thus prepared by him he testified as follows : “ I took it to Brooks. He examined it in my presence. He objected to the condition as to the payment of the mortgage. I informed him that Mr. and Mrs. Dresel and Mrs. Loring had taken the estate on the same condition, and we should have to follow the previous grant. I went to my office, and procured the deed from Higginson to Mrs. Loring and Mrs. Dresel, and took it to Brooks. Brooks would not examine it then; but said he would do so and inform me. I waited about two days™ more than one ; and, not hearing from Brooks, and being in a hurry to get the deed°to Mr. Dresel, I again called on Brooks. He gave me both the deeds, and said that he saw it was necessary to have the condition in our deed. I immediately sent or caused to be sent the deed to Mr. Dresel, who was then in Germany. Before sending it, I had it signed and acknowledged by Mrs. Dresel. About May 20 Jordan took possession of the house; and about May 37 Mrs. Dresel went to Europe. On May 31,1 received Mr. Dresel’s deed from Europe. I called the same day on Brooks, showed it to him, and offered to leave it with him.”</p> <p>Loring further testified: “ Before this time, I had applied to the probate court for leave to sell the one third of the estate formerly belonging to Mrs. Loring, for the payment of legacies. I obtained such leave, and advertised it to be sold at auction on the premises on June 18. On June 17 I called at the office of Brooks & Ball, and saw them both together, notified them of the auction sale on the following day, and asked them if I should have the estate bid off in the name of Jordan. They did not authorize me to have it done so, and I informed them that I should have it bid off by another person, and would have him make a deed to Jordan.” “ I employed auctioneers to sell the estate under the order of the probate court, on June 18. As attorney for Mrs. Dresel, I directed Charles C. Cram to attend the auction sale, and bid for it one third of the price that Jordan was to pay for the premises, and, if any outsider should interfere, which I did not anticipate, to bid it in at any price, or to bid it off at any price. A deed was made out to Cram, in conformity to the sale, and a deed from Cram to Jordan, of date of June 18. On June 25,1 called on Jordan, and tendered him the deeds of Dresel and wife, Phillips and Loring to Cram, and Cram to Jordan, and demanded payment of the consideration, the purchase money. I told Jordan that Brooks & Ball had not finished the examination of the title, but that I made this tender then, so that I should not be held in fault by any delay.”</p> <p>Copies of all the papers from the probate office, (including the record of the sale by auction, showing that Cram bid off Mrs. Loring’s undivided third oaf the estate for the sum of $7333.33,) and the deeds referred to by the witness Loring, were put in evidence by the plaintiffs. It appeared by Loring’s testimony that the amount needful to be raised by the executors’ sale, to pay debts, legacies and charges of administration, was about $1300. The deed of the executors to Cram, in pursuance of the sale, was subject to a condition for the payment of the Higginson mortgage; and the deed from Cram to Jordan was a quitclaim deed in the usual form, also subject to the same condition.</p> <p>During the summer and the early part of September 1869, Loring held various other interviews with Brooks & Ball and Jordan ; and still another formal tender of the deeds of Mr. and Mrs. Dresel and Cram to Jordan was made by Loring to Jordan during the month of August. At one of these interviews, on September 2, Loring offered to procure from Mr. and Mrs. Dresel a warranty deed of the third of the premises which was conveyed by Cram. On September 13, Jordan, through his attorneys, advised the plaintiffs that he did not consider that the title to the premises was satisfactory, and refused to accept the deeds and pay the purchase money; whereupon this suit was brought. The other material facts appear in the opinion.</p>

<p>Bill in equity filed April 6,1868. The bill alleged that the plaintiff, being the owner of a tract of land containing 17,920 square feet, on Marlborough Street in Boston, did, on October 14, 1865, enter into an agreement, under seal, with the defendant, by which the defendant agreed to buy and the plaintiff tc sell the said tract of land on the following terms: “ The price of said land to be $60,928, with interest at six per cent, per annum from November 1, 1865, to the delivery of the deed ; the deed to be delivered on December 1, 1866, or as much earlier ás said Kirby will pay the price of said land and repay the advances made by said Lee as hereinafter provided; or said Kirby is to receive a deed of any one or more of the nine lots into which said land is to be divided, on paying said Lee the proportionate price therefor, and repaying said Lee the advances made by him on the lots so deeded;” “said Kirby agrees to bnhd on said land, with reasonable despatch, and at his own cost, nine brick dwelling-houses” of certain specified dimensions and materials, " each house, exclusive of the land, to cost $15,000, the first three houses to be finished ready for plastering the coming winter, if the weather will permit, the others to progress as rapidly as the weather will permit, and all to be ready for occupancy on December 1,1866; ” “ said Lee agrees to make advances to said Kirby on said houses as they progress, at the times and in the proportions set forth ” in a certain schedule “ to the amount of $10,000 on each house, being $90,000 in all, on which advances said Kirby is to pay interest at the rate of six per cent, per annum until the sale and transfer of said houses to said Kirby is completed; said Kirby agrees to keep said land and houses free from all liens or mortgages made or suffered by him, and to pay to said Lee said purchase money for said land with interest and all moneys paid and advanced by said Lee under this contract, on or before December 1,1866; in case there be any neglect or delay on the part of said Kirby to build and complete said houses, then said Lee may furnish the materials, and employ other person or persons to build and complete said houses, and charge the cost thereof to said Kirby, with interest; and if the purchase money, and all advances made by said Lee, are not paid to him by said Kirby on or before December 1,1866, then said Lee may sell said land and houses; and, after deducting from the proceeds of the sale the amount due him, he is to pay the balance to said Kirby or his legal representatives.”</p> <p>The bill further alleged that the plaintiff on December 1,1865, at the request of Kirby, consented to extend the time for building three of the houses, and for paying the price of the land to be covered by the same, for a reasonable time after December 1, 1866, the time for making the advances by the plaintiff upon the three houses to be proportionately extended; that the defendant had built five of the houses, had received deeds of them, had paid a proportionate part of the purchase money and repaid the plaintiff’s advances; that the plaintiff was ready to fulfil hia part of the contract, and to make the advances agreed upon, if the defendant would go on and build the remaining four houses, or he was ready to convey the land, without its being built upon, " at the agreed price of $3.40 a foot; ” but that the defendant refused either to build or to purchase the land at said price. The prayer was that the defendant might be decreed specifically to perform his agreement.</p> <p>The answer admitted the making of the contract and the building and purchase of the five houses; denied that the contract required that the defendant should at all events build upon the land; alleged that a long time had elapsed since the time when, if at all, the contract was to be performed; that the circumstances under which it had been made were materially changed; that the cost of materials and price of labor had both advanced, and were at least twenty per cent, higher than they were at said time; and “that it would now be inequitable and a hardship for the defendant to be required specifically to perform said contract ; ” “ that the agreed price for the land was $44,800, being at the rate of $2.50 per foot; that he was to pay one year’s interest thereon, at the rate of ten per cent, per annum ; that the plaintiff was to make advances as the building of the houses progressed, not to exceed in all the sum of $90,000; that the defendant was to pay six months’ interest on the said sum of $90,000 at the rate of ten per cent, per annum, and to pay a further sum of $9900 as a bonus, being at the rate of $1100 per house ; that when said agreement was reduced to writing, there was added to said sum of $44,800 a sum equal to four per cent, interest thereon for one year-, said sum being the excess of one year’s interest thereon at ten per cent., over the interest thereon for one year at six per cent.; that there was further added four per cent, interest for six months on said sum of $90,000, being the excess of ten per cent, interest thereon over the interest thereon for said time at the then legal rate, and also said sum of $9900, agreed to be paid as a bonus; that thereby said sum of $44,800 was increased to $58,292; that to avoid fractions this sum was reduced to $58,240, being at the rate of $3.25 per foot; that upon this last mentioned Burn and the amount of said advances, namely, $90,000, the defendant was to pay the plaintiff a commission of two per cent, per annum for one year, which was added to the price of the land increased as aforesaid; that with said aforementioned several additions the agreed price of said land was increased to $61,204.80; that the fraction of a cent in the value per foot of said land, as determined from this sum, was rejected, and said sum was thereby reduced to $60,928, the price mentioned in said agreement, and being at the rate of $3.40 per square foot; that said last mentioned sum of $60,928, or the proportionate part thereof for the several lots into which said land was to be divided, was to be paid only in case said houses were built and the plaintiff made said advances; and that, in the event of said houses not being built, and the plaintiff not being called upon to make said advances, the defendant was to have said land at the abovementioned rate of $2.50 per square foot.”</p> <p>The answer further alleged that “ said agreement was hard and unconscionable, and the defendant ought not to be required specifically to perform the same; that he lost large sums of money in the erection of the five houses built as aforesaid; that in June 1866 it was understood and agreed between him and Lee, that the contract was to be dropped, so far as related to the building of the houses by him, and the making of said advances by the plaintiff, after the completion of the beforementioned five houses, and that the defendant was to have said land at the beforementioned rate of $2.50 per square foot; ” and that, at the time of the extension of the agreement, (which the defend ant admitted,) on December 1, 1865, “ it was still understood that in the event of said houses not being built the defendant was to have the land at $2.50 per foot.”</p> <p>The case was referred to a commissioner to take and report the evidence, and was reserved by Morton, J., on the bill, answer and commissioner’s report, for the determination of the full court, before whom it was argued in November 1869, The facts are stated in the opinion.</p>

<p>A. sued B. for pulling down a wall built by A. in a lane. Pending the suit» they agreed, under seal, that whereas there were differences between them “ as to the ownership and use ” of the lane, and B. claimed “ an interest in the fee” of the lane and also a right of way therein, and the suit was pending about the wall, and both were desirous of settling “ all questions between them touching their respective rights in and to the use of” the lane, they would submit “ all said questions, including said suit,” to an arbitrator, arid abide by his award. At the hearing before the arbitrator, B. offered evidence to prove title in himself in the fee of the lane; A. denied this claim of title; and the matter waa made subject of argument. The arbitrator awarded that A. had a right of way in the lane, and B. had no right of way therein or to pull down the wall; and as referee under a rule of court in the pending suit, he assessed damages against B. for pulling down the wall. Held, in a suit in equity brought by B. to avoid both awards, (the question of jurisdiction being waived,) that both should be declared void, for the omission of the arbitrator to pass on the question of title in the fee of the lane.</p>

<p>Two actions of contract on a recognizance under the Gen. Sts. c. 124, § 10, entered into by Richard W. Sears, as principal, and by Charles Canterbury, and afterwards in lieu of him by Thomas Smith, as surety. The cases were submitted together to the judgment of the superior court, and, on appeal, of this court, upon facts agreed substantially as follows:</p> <p>Sears having been taken on execution upon a judgment in favor of the plaintiffs, and having entered into the recogni zanee with Canterbury as surety, subsequently notified the plaintiffs in writing of his desire to take on April 1 the oath for the relief of poor debtors, and on the notice the plaintiffs’ attorney signed this indorsement: “I hereby accept service of the above notice, and consent that the examination may be postponed till Monday, April 12, at twelve o’clock, m. ; and in case that the surety upon the recognizance heretofore entered into desires to surrender his principal, I agree that a new surety may be examined and approved by the commissioner, and waive notice of such examination.” On April 1, Sears appeared before the commissioner, but there was no appearance for the plaintiffs, nor was Canterbury present, nor did he procure the attendance of any officer. The commissioner examined Smith and approved him as surety in lieu of Canterbury, took his recognizance, and adjourned the examination to April 12. On April 12 Sears appeared, but took his departure before the expiration of the hour appointed for the hearing, without being examined and without leave of the magistrate; whereupon he was defaulted and judgment rendered against him on the recognizance.</p>

<p>Upon a bill in equity between partners to wind up the partnership, one of them who neglects or refuses to account fully for business of the firm, done by himself in a foreign jurisdiction, cannot, as a penalty, be denied his reasonable expenses of doing it, or sums otherwise owing to him from the firm, or be charged with interest with annual rests on actual or estimated balances in his hands; but in estimating the amount, expenses and profits of such business, and computing interest on such balances, if any interest thereon is chargeable, care should be taken, by making presumptions in favor of his copartners against him, to guard them from any injurious consequences of his concealment of facts.</p> <p>Upon a bill in equity to wind up a partnership, a receiver will not be appointed to take possession of its assets in a foreign jurisdiction.</p>

<p>The provision of the Rev. Sts. c. 44, § 23, and Gen. Sts. c. 68, § 41, declaring that acta of incorporation shall be subject to amendment, alteration or repeal at the pleasure of the legislature, reserves to the legislature the authority to make any alteration or amendment of a charter granted subject to it, which will not defeat or substantially impair the object of the grant or any rights vested under it, and which the legislature may deem necessary to secure either that object or other public or private rights.</p> <p>After a manufacturing corporation, chartered with authority to construct and maintain a dam across a river, paying damages to the owners of fishing rights above, and whose charter does not express]y exempt it from maintaining the dam without a fishway and is subject under the Rev. Sts. c. 44, § 23, and Gen. Sts. c. 68, § 41, to amendment, alteration or repeal at the pleasure of the legislature, has paid such damages, and constructed the dam without a fishway, so as to destroy the fishing.rights above, and to impair fishing rights below, for the injury to which last no compensation has ever been made oi provided, that corporation, or any other which purchases its dam under the authority of a subsequent statute, may be constitutionally required by the legislature to construct a fishway in the dam to the satisfaction of commissioners appointed for the purpose.</p>

<p>An omission of the aldermen of Boston to allege, in an order altering a street; that the alteration was made under the St. of 1866, c. 174, is no ground for quashing the proceedings on certiorari, as not conducted under that statute, if the order was passed while it was in force, and the record shows that they intended to, and did, proceed in conformity with it.</p> <p>The liability of estates abutting on a street in Boston altered under the St. of 1866, c. 174, to be assessed under § 5 for the expense of the alteration, proportionally to the benefii which they received from it, accrued on the passage of the order making the alteration, is to be estimated as of that date, and is not affected by the repeal of that section by the St. of 1868, c. 276, § 2.</p> <p>In the absence of evidence to the contrary, it is to be presumed that an adjudication by the aldermen of Boston under the St. of 1866, c, 174, § 5, of the benefit received by abutting estates from the alteration of a street, and their assessment of the expense accordingly, were made as of the date of the order for the alteration.</p> <p>An overvaluation by the aldermen of Boston, under the St. of 1866, c. 174,'§ 5, or thj St. of 1868, c. 276, § 1, of the benefit received by real estate from altering a street, as the basis of an assessment thereon for the expense of the alteration, is no ground for quashing the proceedings on certiorari, but the remedy of the owner is by petition for a jury.</p> <p>An order of the aldermen of Boston under the St. of 1866, c. 174, § 5, assessing for the expense of altering a street estates abutting thereon and benefited by the alteration, which lays the assessment on the estates named in a schedule annexed to the order and entitled “Schedule of assessments upon the estates that were benefited by the alteration/* imports that the schedule includes all the abutting estates which were benefited.</p> <p>An omission of the aldermen of Boston to allege, in the record of altering a street under the St. of 1866, c. 174, that their assessment of the expense of the alteration upon abutting estates thereby benefited was laid on all such estates, is no ground for quashing the proceedings on certiorari, in the absence of any allegation, in the petition for the writ, that the assessment was in fact not so laid, and of any evidence that the omission injured the petitioner.</p> <p>The St. of 1866, c. 174, § 5, construed in connection with § 1, requires the aldermen of Boston, in assessing, for the expense of laying out or altering a street, abutting estates thereby benefited, to lay the assessment ratably upon all such estates; and is constitutional.</p> <p>It is no ground for quashing on certiora/ri proceedings of the aldermen of Boston altering a street, under the St. of 1866, c. 174, that, by a clerical error in the preamble of their adjudication of the benefit received by abutting estates, the date of the assessment of damages is substituted for the date of the order making the alteration.</p> <p>The provision of the St. of 1868, c. 276, § 1, that in no case shall assessments upon real estate for special benefits received from the laying out or alteration of a street in Boston, exceed the amount to be paid by the city for such laying out or alteration, construed in connection with the St. of 1866, c. 174, § 3, limits the assessments only to the whole amount of the cost of the laying out or alteration, which the city pays in the first instance, without any deduction on account of the partial reimbursement which it may derive from such assessments.</p> <p>It is no ground for quashing on certiorari proceedings of the aldermen of Boston altering a street, under the St. of 1866, c. 174, as amended by the St. of 1868, c. 276, which repealed § 5 of the former statute, that the schedule of their assessment of the expense of the alteration upon real estate specially benefited by it purports to be made in pursuance of the provisions of the repealed section and of § 1 of the St. of 1868.</p> <p>The remedy by petition for a jury, given by § 7 of the St. of 1866, <?. 174, to any party aggrieved by doings of the aldermen of Boston under that statute, extends also to their doings under it as amended by the St. of 1868, c. 276.</p>

<p>An assessment by the aldermen of Boston upon land of Harvard College, under the Sts. of 1866, c. 174, and 1868, c. 276, of a part of the expense of altering a street, proportional to the benefit received by the assessed land from the alteration, is a “civil imposition,” within the meaning of that term in the clause of the college charter of 1650,' exempting from all civil impositions, taxes and rates, lands of the college not exceeding a certain annual value; and if at the time when the land was acquired by the college, before the adoption of the Constitution of the Commonwealth, it was within the limit of the exemption, and continued within it until and at the time when the Constitution was adopted, the college is entitled to continue to hold it exempted, notwithstanding that its annual value now greatly exceeds the limit, and that the college holds other lands, also exceeding the limit, in value, aside from lands exempted under the general tax acts.</p>

<p>Contract by the lessor of a parcel of real estate abutting on Devonshire Street in Boston, on a covenant of the lessee in the indenture of lease, which was dated June 1,1868. In the superior court the case was submitted on the pleadings, without argument; judgment was ordered for the defendant; and the plaintiff appealed. The facts appear in the opinion. The case Was argued in writing in this court in November 1870.</p>

<p>Contract to recover §190.08 as a balance of the price of a lot of eight bales of wool alleged to have been sold by the plaintiff to the defendant; against which it was set up in defence, that the plaintiff warranted the lot as combing pulled wool, but one of the bales was not that kind of wool, and so was sent back by the defendant.</p> <p>The case was first tried, in the superior court, before Lord, J., and a verdict returned for the defendant; and exceptions alleged by the plaintiff were sustained, as reported 98 Mass. 205-208, - on the ground that the contract of sale of the lot of eight bales (which was oral) was an entire contract, which the defendant could not rescind in part. At the second trial, Vose, J., directed a verdict for the plaintiff for the full amount of his claim ; and exceptions alleged by the defendant were sustained on the ground that the judge “ should have left the question of damages to the jury, with instructions that, if a warranty and breach of it had been proved, they should allow the defendant, by way of deduction from the agreed price, the difference between the actúa, value of the article sold and what would have been its value if it had corresponded with the warranty.” See 98 Mass. 208-210. After this decision the defendant amended his answer by alleging that the wool which he returned to the plaintiff was “ an article distinct and entirely different in kind from the other bales which he purchased and paid for,” and that “ said returned bale happened to be among the said bales of combing pulled wool through the fraud or mistake of the plaintiff or of some person for whom the plaintiff is responsible, and without any fault on the defendant’s part;” by denying that “said returned bale constituted any part of the sale to him, or that he is in any way responsible for it;” and by further alleging that “he returned said rejected bale to the plaintiff upon the ground that it was not included in their agreement, and that he never bought It.”</p> <p>At the third trial, before Wilkinson, J., the evidence was substantially identical with that given at the former trials. “ Under the evidence, the defendant contended that it would be legal for the jury to be allowed to pass upon the questions, whether the agreement was or was not an entire contract, and also as to whether there was in fact any sale of said rejected bale to the defendant; but the court ruled otherwise.” The defendant also requested instructions, which the judge refused, based on the assumption that the evidence would warrant the jury in finding that the bale in dispute was delivered as a part of the lot of eight bales through the fraud or mistake of the plaintiff. He .farther requested instructions “ that the value of the rejected bale to the defendant, under the circumstances of this case, is the true measure of damages,” and “ that, if the jury find a warranty and a breach of it, it will be legal for them to calculate any damages in the reduction of the plaintiff’s claim, which the defendant actually suffered by the plaintiff’s failure to fulfil his contract.” These, also, the judge refused, and instructed the jury “ that, as a warranty and breach of it had been proved, they should allow the defendant, by way of deduction from the agreed price, the difference between the actual value of the article sold and what would have been its value if it had corresponded with the warranty.” The jury found for the plaintiff, and assessed damages in the sum of $144.41. The defendant alleged exceptions.</p>

Contract to recover a balance on an account growing out of a consignment of clothing by the defendants to the plaintiffs for sale on commission.

<p>Mandamus to the pilot commissioners, on a petition of Jacob K. Lunt, dated August 1,1868, which alleged that he was appointed a pilot in the harbor of Boston September 21, 1841 and again July 30,1855, and held commissions accordingly at the time of the enactment of the St. of 1862, c. 176, by § 1 of which he.was continued in office; that he acted in the office ever since his original appointment, never resigned it, and knew no reason why he should not be permitted fully to enjoy all its rights and privileges ; but that the pilot commissioners now denied his right to act therein; and he prayed for the writ for the purpose of reinstating him in the enjoyment of those rights and privileges.</p> <p>The return of the commissioners to the first writ admitted that on May 4, 1868, the petitioner was a duly commissioned pilot in the harbor of Boston, but alleged that on that day, “ in the exercise of the authority and discretion conferred upon them by law, upon satisfactory evidence to them of misconduct, carelessness and neglect of duty as a pilot on his part as such pilot, they did suspend him until the meeting of the trustees of the Boston Marine Society then next ensuing, and on said day notified said trustees and him of the said suspension; that said trustees, at their next ensuing meeting, to wit, on May 5, 1868, did decide that his commission as such pilot ought to be revoked, and on said day duly notified the commissioners of their decision ; and that the commissioners, after being so notified of the action of the trustees in this behalf, on May 18,1868, did revoke his commission as such pilot, and on said day duly notified him of their said action; all of which actions and doings of said commissioners and trustees were in due course of law; ” wherefore the commissioners said that from and after said May 18, and at the time of his petition, the petitioner was not a pilot in the harbor or port of Boston, and had no right to exercise and enjoy said office for that harbor.</p> <p>To this return the petitioner alleged the following exceptions:</p> <p>“ 1. That the respondents do not in their answer allege any particulars or acts of misconduct, carelessness or neglect of duty.</p> <p>“ 2. That they do not allege that they ever heard, examined into or decided any complaint against said petitioner, for any acts of misconduct or omissions of duty by him as a pilot.</p> <p>“ 3. That they allege that they suspended the petitioner, and afterwards revoked his commission as pilot, in the exercise of ‘the authority and discretion,’ conferred upon them so to do, on evidence satisfactory to them of misconduct, carelessness and neglect of duty.</p> <p>“4. That they had no authority, as is claimed by them, to suspend and revoke the commission of the petitioner as pilot, at their discretion, without finding him guilty of specific misconduct, carelessness or neglect of duty, upon evidence satisfactory in law, and upon giving the petitioner an opportunity to be heard in his defence.”</p> <p>The case was thereupon heard by Morton, J., and reserved for the determination of the full court.*</p>

<p>The master of a ship in Liverpool agreed with brokers, who did business there and in Boston, that they should load her for a voyage to Boston, for a fixed commission, and she should be consigned to them there and discharged at a certain wharf by their stevedore; that, should she put into a port for repairs or otherwise, she should be consigned to their agents; and that they should collect all the freight and general average in Boston, and take additional commissions thereon. They accordingly loaded her with goods of various owners, and were paid the first named commission. On the voyage, she put into a port of distress, where they had no agents, and was condemned and sold. The master chartered other vessels there to transport the goods to Boston; and borrowed money on a rsopondentia bond, and agreed with the obligee to consign the cargoes to an indorsee of the bond. When these vessels arrived in Boston, the brokers demanded that they should discharge at the wharf specified in the agreement made in Liverpool; but he did not comply with the demand, and denied their right and refused to enable them to collect the freight and general average. Htld, that, even if he had authority to make the agreement with them in Liverpool, yet they could not maintain an action against his owners for the additional commissions, and for damages on account of the failure to discharge at the specified wharf.</p> <p>The master of a vessel in a foreign port has not implied authority to bind the owners by an agreement with brokers, who are loading her for a voyage for a fixed commission, that she shall be consigned to them at the port of destination, with a right on their part to supply the wharf and stevedore for her discharge, and collect all freight and genera, average for an additional commission.</p>

<p>Contract for the proceeds of a draft. At the trial in the superior court, before Lord, J., without a jury, it appeared that the plaintiffs were insurers of a cargo of sugar shipped on the schooner Minnie Arnold from Havana for New York in November 1868, and owned by Wylie, Knevals & Company of the latter city; that the schooner, being disabled on the voyage, put into St. Thomas on January 1, 1869, and the cargo, being damaged, was sold by recommendation of a board of survey, for the benefit of whom it might concern; that on February 23, Wylie, Knevals & Company, upon receiving a letter from the master informing them of the loss, made an abandonment to the plaintiffs, who paid them for a total loss in four instalments, on February 24, March 9, March 20, and April 7; that part of the proceeds of the sale was spent by the master in St. Thomas in repairs on the schooner and otherwise, and the draft was purchased with the balance and sent by him to the defendants in Boston, who received it March 8, accompanied with a letter in which he wrote “ It is likely, should I not succeed in obtaining a paying freight, that I will proceed to Turk’s Island for a cargo of salt on vessel’s account, with which I intend to proceed to your port; you will in the mean time have the adjustment made out' against my arrival, holding the amount herein remitted to my credit. You will of course act for the interest of the vessel in my absence as regards the freight, &c.; ” that, about the same time, the defendants received from the master accounts, protests and papers, which they handed to an average adjuster, who prepared from them a general average statement, dated April 29; and that, after paying the adjuster’s fees, they placed the balance of the proceeds of the draft to the credit of the owner of the schooner, who was indebted to them at the time.</p> <p>It further appeared that the plaintiffs commenced a suit against the owner of the vessel, summoning these defendants as his trustees, by writ dated April 26, entered at the same term with the present action, and now pending, with a declaration containing two counts for money expended at St. Thomas in repairing the schooner, and a third count for the entire sum which appeared by the average adjustment to be due to the plaintiffs from the sale of the sugar. The adjuster’s fee was also charged in the general average adjustment, a copy of which, was put in evidence by the plaintiffs.</p> <p>“ The judge found, on all the evidence, that the plaintiffs had not intended to confirm any appropriation made by the defendants of said proceeds on their books, or to waive any right of action against the defendants. It appeared that no motion had been made for an order of notice to the principal defendant named in said writ, who resided in Nova Scotia, and upon whom no personal service had been made, or to charge the defendants as his trustees for the amount of the draft, of which their answer disclosed their receipt, together with their appropriation of the proceeds of it, accompanied by a denial of any other fund. The defendants testified that they made no change in their position in the matter between the service of the two writs. The judge found, as matters of fact, that the defendants received the draft with notice that it belonged to the owners of the cargo; that the general average adjustment was procured for the purpose of enabling the owner of the vessel to make a claim for a partial loss upon the insurers of the vessel; that the defendants had sent it to the owner; and that the plaintiffs had no interest in having it made and derived no benefit from it.”</p> <p>It also appeared “that the defendants had had a business connection for about a year with the schooner; had furnished her with supplies, secured a cargo, procured insurance on the same, and acted as the general agents of the schooner when she came to Boston; that they had for four years acted, as consignees, and furnished supplies for vessels belonging to the owner of the schooner; that they received a letter from Wylie, Knevals & Company inquiring about the schooner, which they answered February 24, 1869, stating that they had received no intelligence concerning any disaster to her; that they never afterwards made any communication on the subject to Wylie, Knevals & Company, or to the plaintiffs; and that the plaintiffs, before commencing this action, made a demand on them for the proceeds of the draft.”</p> <p>The defendants requested the judge to rule, “that the suit should have been commenced in the name of Wylie, Knevals & Company, and not in that of the plaintiffs; that the suit by the plaintiffs against the owner of the vessel, in which these defendants were summoned as trustees, was a waiver in law- of any right to maintain the present action, and a confirmation in law of the appropriation by the defendants of the proceeds of the draft to the credit of the owner of the vessel; and that the plaintiffs could not in any event recover more than the balance remaining after deducting from the proceeds of the draft the amount due to the defendants from the owner of the schooner.” The judge refused so to rule; the verdict was for the plaintiffs; and the defendants alleged exceptions.</p>

<p>A. policy of insurance on a vessel to a port of discharge and until she be moored twenty-four hours in safety does not cover a loss occurring after she has lain three weeks at a place to which she was destined as a place of discharge, where she has discharged a substantial part of her cargo, and at which similar vessels uniformly discharged in whole or in part; although one of her owners, being present at the port, intended to take her into an inner basin in the same port to complete her discharge.</p>

Contract. Writ dated October 14,1867. The declaration alleged that the defendants executed to the plaintiffs two policies of insurance, one for $850 on 84 tons of cannel coal, and the other for $5000 on 147 casks of soda ash, on board the barque Alida, at and from Liverpool to Boston, the losses payable in gold ; that the vessel with her cargo was totally lost by perils insured against; that the coal was, and was agreed to be, of the value of $850 in gold, and the soda ash…

Actions of contract upon two policies of insurance made by the defendants on October 7, 1851, one to the plaintiff Paddock in the sum of §5000, and the other to the plaintiff Field in the sum of §3500; and each against the usual perils upon the ship Rambler, valued at §15,000, and outfits valued at a like sum, on a whaling voyage from Nantucket to the Pacific )cean and elsewhere and back to Nantucket; and containing this clause: “ Provided, that the insurers shall not be…

<p>The first case was a petition filed by Henry G. Clark, a sur--, geon, for the allowance of a bill in which he charged the sum of $150 against the county of Suffolk, for “ consultations and attendance in court” three days at October term 1867, as a witness for the prisoner, on the trial of an indictment against Edward C. McGuire for murder; to which bill was appended a certificate of the prisoner’s counsel that the services charged for were rendered by the petitioner at their request, and the charge was reasonable and proper. The petition was reserved for the consideration of the full court, and argued in November 1868.</p>

<p>At the trial of a criminal case where the only question is as to the identity of the prisons! with the guilty party, the jury may be justified in returning a verdict of guilty, although no witness will swear positively to the identity.</p> <p>At a criminal trial, the counsel for the Commonwealth stated in his closing argument to the jury, that the defendant had been previously convicted of the same offence. ISTo evidence had been offered to support the statement; and the judge instructed the jury that it was not competent for their consideration. Held, that the defendant had no ground of exception.</p>

Indictment for receiving stolen goods, the property of Joseph W. C. Seavey, Charles Foster and John A. Bowman. At the trial in the superior court, before Pitman, J., it appeared that the defendant received the goods from Jeremiah Brown, a clerk in the employ of the firm of Seavey, Foster & Bowman.

Indictment against Adelbert Hooper and John Simontoa, for cheiting by false pretences.

Indictment for larceny. One count charged the stealing of goods, the property of James M. Longstreet; and another count, the stealing of goods, the property of Henry O. Ford.

<p>Bill in equity filed May 2, 1870, by William F. Bacon against Theodore Pomeroy, Robert Pomeroy, Henry Colt, and the executors of the will of William Pollock.</p> <p>The bill alleged that said Pomeroys, Colt, Pollock in his lifetime, and the plaintiff, were owners of nine hundred and five shares in the capital stock of the Pittsfield Woollen Company, (a manufacturing corporation organized and established at Pitts-field under the general laws of this Commonwealth, and in accordance with the provisions of the St. of 1851, c. 133, and the acts in addition thereto, relating to corporations,) Pollock owning three hundred and twenty, the plaintiff one hundred and sixty, and the others the residue, specifying the number owned by each; that since May 3, 1862, none of said owners of said nine hundred and five shares had ever ceased to be a stockholder in said corporation or had transferred any of his said stock, and no certificate of any transfer thereof had been filed in the office of the town clerk of Pittsfield signed by the clerk of the Pittsfield Woollen Company; that on said May 3 said stockholders, to facilitate the business operations and aid the credit of the Pittsfield Woollen Company, and especially to give it a credit at bank, signed and delivered to the cashier oí the Pittsfield Bank, for that bank, (a corporation created by the laws of this Commonwealth, and on June 10, 1865, reorganized as the Pittsfield National Bank under the laws of the United States,) the following writing:</p> <p>“ Whereas, the stock of the Pittsfield Woollen Company, a corporation organized .under the general law of this state, has all been recently purchased, and is now owned, by the subscribers, who desire and intend to continue the corporate organization, but not for the purpose of exempting themselves from theii individual liability for the debts of the company, now we hereby declare to all whom it may concern, that as to creditors of the corporation we do and shall hold ourselves liable, jointly and severally, as copartners, and such liability shall continue a to each one so long as he shall continue a stockholder in said concern, but shall not apply to liability contracted after transfer of his stock and a certificate thereof shall have been filed in the office of the town clerk of Pittsfield, signed by the clerk of said corporation. Dated at Pittsfield, the 3d day of May, 1862.”</p> <p>The bill then alleged that the bank had ever since held this writing, as the contract of the joint and several liability of the signers, as copartners, upon any and all liabilities of the Pitts-field Woollen Company to the bank; that such liability continued, as to each of the signers, so long as he continued to be a stockholder in the Pittsfield Woollen Company without having transferred his stock and a certificate thereof having been filed in the office of the town clerk of Pittsfield, signed by the clerk of the company; and that this writing still was in full force and effect, never having been rescinded or in any way modified or abrogated; that upon the credit of the Pittsfield Woollen Company and of the said signers, the bank, among other loans to and transactions with the company, afterwards, in Pollock’s lifetime, made a loan to the company upon its negotiable promissory note, dated January 9, 1865, and payable in three months to the order of the bank, which had since been renewed, from time to time, till October 15,1869, on which date the amount due thereon was $30,000 and it was again renewed by a note of the company payable in three months, and also' made another loan to the company and took therefor its promissory note dated December 24, 1869, for $10,662.71, payable in three months, and continued to hold both said last named notes till their maturity; that upon the maturity of these notes the company neglected to pay them, and, notwithstanding demand by the bank, had never made any payment on either of them. Copies of the notes were set forth in the bill.</p> <p>The bill further alleged that Pollock died December 9, 1866, testate, and on February 5, 1867, his will was duly proved and letters testamentary were issued to the executors named therein. This will, a copy of which was made part of the bill, appointed the executors trustees for certain purposes named therein, and contained the following provisions :</p> <p>“ I direct my executors to pay my just debts and funeral ex' penses, without unnecessary delay; and for that purpose to sci. and convey any of my property, real and personal, (except my mansion-house estate hereinafter named,) which they may deem necessary. I authorize them to compound debts due me, and to compromise or submit to arbitration any claims made by or against them as my executors. And I give to them all the power over my property and estate, (except the said mansion-house estate,) for the purpose of winding up my business, that I should have if living. And if at the time of my death I am engaged in business undertakings, whether, as copartner or on my sole account, which it would be inexpedient in their opinion to close at the time and in the manner usually adopted in the settlement of the estate of deceased persons, I empower them to continue my estate in trade for such period as they deem for the interest of my estate, for the purpose of prosecuting and completing such undertakings to the best advantage; to use the credit of my estate, (with the above exception,) and to make any part thereof liable by mortgage, pledge or otherwise, for the performance of any engagements, and the payment of any debts, notes and obligations, which have been made or incurred by me, or by any copartnership of which I am a member, oi which they may deem it necessary to make or incur, for the above purpose.”</p> <p>“ I empower my trustees to sell or exchange any real or personal property at any time held by them upon the trusts herein declared, (excepting said mansion-house estate,) to make deeds and transfers thereof, and to invest the proceeds of such sale or exchange as they may deem expedient.”</p> <p>“ Upon all sales by my executors or trustees, their receip shall exempt the purchaser from liability as to the applicatioe of the purchase money.”</p> <p>The bill further alleged that the executors on February 5, 1867, filed bonds with sureties approved by the judge of probate, and on February 4, 1868, filed in the probate office an affidavit that they gave notice of their appointment and acceptance thereof, within three months from February 5, 1867, by posting and publishing notices thereof as required by law, the form and manner of which were set forth in the bill.</p> <p>The bill then alleged, that, upon the neglect of the Pittsfield Woollen Company to pay said two notes and interest thereon, or any part thereof, payment thereof was demanded by the bank of the plaintiff and of the defendants, and the defendants neglected and refused to pay the same, and, the bank persisting in demanding payment of the notes and interest, the plaintiff on April 27, 1870, paid the amount thereof and thereby became subrogated to all the rights of the bank, and entitled to demand and receive a contribution from the defendants towards the amount so paid by him and interest thereon, in accordance with the principles of equity and good conscience in such matters, and that each of the defendants (the executors being deemed together as one only) should pay and contribute the same in the proportion the number of shares held by each bore to the whole number of shares held by all the signers of the writing aforesaid ; but that they had refused to do so, and pretended that the plaintiff was not entitled to demand and receive any contribution for such payments. And the bill prayed that they might be ordered to pay to the plaintiff the sums so due from them respectively or such other sums as might be found due to him.</p> <p>The executors of the will of William Pollock demurred to the bill, for the following causes :</p> <p>First. That the Pittsfield Woollen Company should have been made a party to the bill.</p> <p>Second. That the plaintiff’s remedy, if any, was at law, and not in equity.</p> <p>Third,. That any right or cause of action of the bank, or of the plaintiff, against these defendants, in their said capacity, growing out of the writing aforesaid or the payments made by the plaintiff, was barred by the statute of limitations.</p> <p>Fourth. That upon the death of Pollock he ceased to be a stockholder in the Pittsfield Woollen Company, and his estate was liable, if at all, under the contract contained in the writing, for such demands only as then existed and not for any which afterwards accrued.</p> <p>Fifth. That the plaintiff had not by his bill made a case which entitled him to the relief prayed for.</p> <p>Upon this demurrer the case was heard by Colt, J., and by consent of the parties reserved for the consideration of the full court.</p>

<p>The Sts. of 1865, c. 242, § 3, and 1868, c. 349, § 4, were not intended to create a new class of taxpayers, but to provide the mode in which shares in nátional banks should be assessed to those already liable to taxation; and therefore mutual life insurance companies are not liable to taxation under those statutes.</p>

Tort by the wife of David H. Proper against a deputy sheriff o recover the value of a colt and some lumber, alleged to be tier separate property, and attached by the defendant on a writ against her husband.

<p>Contract on a promissory note and for work and labor. The defendant filed a declaration in set-off containing a count on an account annexed for board and lodging furnished to the plaintiff and Edward Spring, her infant ward, and for wool, a “ goods box,” and eighteen dollars in cash furnished by the defendant to the plaintiff. The answer to the declaration in set-off was a general denial.</p> <p>At the trial in the superior court, before Brigham, C. J., it appeared that the plaintiff with her ward was at the house of the defendant, who was her uncle, at the time alleged in the declaration in set-off. The plaintiff offered evidence that she and her ward rendered services for the defendant while in his family, which she expected would pay for whatever she had of him while there. The defendant objected that the evidence was not admissible under the answer to the declaration in set-off, but the judge admitted it.</p> <p>The defendant requested the judge to instruct the jury that “if the plaintiff and her ward were in the defendant’s family during the time alleged in the declaration in set-off, or had the artic.es charged in said declaration, the law would imply a promise to pay therefor.” But the judge declined so to instruct the jury, and instructed them that “the plaintiff’s stay in the defendant’s family, and the receipt of the articles charged, would, between strangers, considered in and of themselves, imply such a promise, but would not have that force in view of the relations and kinship of the parties, and the circumstances attending the plaintiff’s stay and the receipt of the articles, which circumstances should be considered by the jury in determining the understanding between the parties at the time.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Contract for wood sold and delivered. The case was referred to an auditor, who reported in favor of the plaintiff. At the trial in the superior court, before Brigham, C. J., the plaintiff introduced the auditor’s report in evidence, and rested his case. The defendants contended that if the plaintiff proposed to offer other evidence in support of his case, he should do so before the defendants put in their evidence, but the judge ruled otherwise.

<p>The two defendants with a workman went to a tenement in the occupation of the plaintiff, but in which there was no one at the time, and the door of which was fastened with a padlock; demanded the key from the plaintiff’s servant; and, on his refusal, ordered their workman to enter the premises through a hole in the floor. The workman did so; and by his assistance, and with the aid of an axe which they brought with them, they removed the padlock, and entered and kept possession of the premises. They used no violence in word or act to the plaintiff’s servant. Held, that there was not such a forcible entry as would support an action on the Gen. Sts. c. 137.</p> <p>In an action on the Gen. Sts. c. 137, to recover possession of a tenement which the plaintiff claimed under a written lease, and which he alleged that the defendants held against his right, the answer was a general denial. Beld, that evidence offered by the defendants of an oral submission to arbitrators of the question of the plaintiff’s right to possession, and of an oral award against him, was not admissible.</p>