Volume 105 — Massachusetts Reports

<p>iRFOEMATlOir filed November 17,1868, by the attorney general, at the relation of the selectmen of Deerfield for that year, pursuant to the St. of 1868, e. 294, § 3, representing that the Proprietors of Deerfield River Bridge, under and in pursuance of the St. of 1797, c. 17, by which they were chartered as a corporation, and soon after its enactment and their organization, built a bridge over Deerfield River in the town of Deerfield, opened it for passengers November 14, 1798, and maintained it from that date until November 14, 1868, collecting and receiving meanwhile tolls granted by the charter; that the charter provided that, at the expiration of the term of seventy years from and after the day of the opening of said bridge for passengers, it should be disposed of by the government as the legislature should think proper, and further provided that the bridge should be kept by the corporation in good, safe and passable repair for the term aforesaid, and be in like repair at the end of said term; that the St. of 1868, a. 294, (which took effect November 14, 1868, laid out the bridge as a public highway, and imposed on the town of Deerfield the duty of maintaining it and keeping it in repair,) was passed in pursuance of the St. of 1797, and contained an express provision that nothing in itself contained should be construed to release the defendants from their liability to keep the said bridge in good, safe and passable repair up to the expiration of the term aforesaid; that during the latter part of the term aforesaid the said bridge was not kept by said corporation in good, safe and passable repair, and was not in such repair at the end of said term, to wit, on November 14, 1868, and at said last mentioned date the flooring and main timbers and masonry of it were so defective (in particulars which the information specified) that the bridge was unsafe; that the corporation neglected and refused to repair the bridge, and was about to wind up its business and distribute among its stockholders the moneys in its hands derived from tolls and other sources; and that the informant was apprehensive that thereby the corporation would become disabled to fulfil, its obligation to repair the bridge, wherefore he prayed for an injunction on the corporation against alienating any of its property except to pay its debts or repair the bridge, and for such other and further relief as the nature of the case might require.</p> <p>The answer admitted the organization of the corporation and its building of the bridge under the St. of 1797; but denied that the bridge was opened for passengers on November 14,1798, and that the corporation had maintained it from that date till November 14, 1868, collecting and receiving tolls meanwhile, as alleged in the information; denied that the St. of 1868, o. 294, was passed in pursuance of the St. of 1797, o. 17, or had any effect to dispose of the bridge under the authority reserved in the St. of 1797; admitted that by the St. of 1797 the corporation was bound to keep the bridge in good, safe and passable repair for the term of seventy years from and after the day of opening it for passengers, and to have it in like repair at the end of said term; but denied that during the latter part of said term, or at any time, the bridge was not kept by the corporation in due repair; denied that the 14th of November 1868 was the end of the term, and that the bridge was not in such repair on that day; denied that it was not in due repair at the end of the term; and continued as follows: “ And the defendants for further answer say, that the bridge was opened for passengers on November 8,1798, and that the last day of the term of seventy years, specified in the St, of 1797, was the 7th day of November 1868; that the bridge was by them kept in good, safe and passable repair at all times during the term for and during which they were incorporated as proprietors, and at the end of said term was in good, safe and passable repair, as required by their charter; and that after thfe 7th day of November 1868 they ceased to take tolls on the bridge or to exercise any acts of ownership over the same, and, no provision having been made by the legislature relative to the disposal of the bridge, on that day they abandoned the same and left the same standing as it was, in good, safe and passable repair. And the defendants further say that the informant cannot sustain his information; and, not admitting but denying the allegations therein, except so far as heretofore admitted in their answer, the defendants deny that the facts set forth in said information furnish any ground upon which the prayers thereof can be sustained and upon which the defendants can be held to respond, and they deny that the information sets forth or shows any ground of complaint, or any case requiring, demanding or justifying the relief sought for, or any relief touching the matters complained of; and the defendants claim for their answer, so far as it is applicable and appropriate therefor, the same benefit and advantages as if they had formally demurred to the information.”</p> <p>The case was referred to a master to find the facts, who made a report of which the following are the material parts:</p> <p>“ The defendants, under their charter, built a bridge, and opened it for passengers on the 8th of November 1798, and maintained the same bridge and other structures in place of the soma until through November 7, at midnight, in the year 1868, when they ceased to take toll. The bridge was opened to the public travel free of toll, on November 8,1868. An examination of the condition of the bridge was made on November 14, 1868, by the relators, with the assistance of other persons possessing peculiar skill and experience in the construction of bridges. The relators and the other persons referred to were witnesses at the hearing before me, and described with minuteness of detail the condition of the bridge at that time; and from some of these witnesses, and from others, there was testimony in regard to the condition of the bridge for a few weeks before November 14, 1868, and afterwards. All this evidence tended to show that during the period embraced by it, from a few weeks before November 14, 1868, to the time when the relators commenced repairs upon it, there was little if any change in its condition; and the facts found by me in regard to its state of repair apply as well to its condition on the 8th of November 1868 as to its condition on the 14th of November of said year.</p> <p>“ I find that at said last mentioned dates said bridge was not in good, safe and passable repair. The north abutment of the bridge, owing perhaps partly to a, defect in its original construction, was badly bulged, and a portion of it, fronting the river, was loosened and separated from its wing wall. Many of the stones composing it were loosened and shoved toward the river. The bond of the masonry was broken, and joints were open. Its general appearance indicated a liability to be thrown down easily, or to tumble down. The masonry of the south pier was also in some parts bulged out and loose. The stones were in many places separated from each other, and the bond of the mason work appeared broken. The north end of the bridge had settled, as the evidence showed, about fourteen inches, and earth in considerable quantities had washed in upon it at that point. The timbers were more or less decayed for about twenty feet from that end. In that part of the bridge, one of the beams supporting the floor planking had decayed so much as to break or split off, so that the floor planks which had rested upon it were loose and without support at one end. Some-of the posts were rotten at the bottom, so that the braces resting at the foot of the' posts had crushed them. Some of these posts had been secured with irons, but not all of them. The planking of the bridge was in some places worn very thin, having been in use a long time. The arch beams on one side of the bridge were rotten, and one of them was broken.</p> <p>“To several of the witnesses introduced on the part of the relators, who were admitted or proved to be experts on this subject, the question was put, ‘ What in your opinion was the condition of the bridge, as to being safe ? ’ This question was objected to by the defendants, but I admitted it, and the witnesses testified that they did not consider the bridge safe, and gave as reasons the facts before stated. In coming to the result that I have alalready stated in regard to the condition of the bridge, I have formed my opinion upon the facts stated by the witnesses, and not upon the opinions expressed by them.</p> <p>“ It was proved upon the part of the defendants, that, notwithstanding the condition of the bridge as shown to exist on the 8th and 14th of November 1868, it continued to be used for public travel, with some slight repairs, until the spring or summer of 1869, when the north abutment was taken down by the town of Deerfield and rebuilt. During this period, at times very heavy loads passed the bridge without accident. The town of Deerfield, in repairing the bridge, undertook to raise the structure some feet higher than it was before, and in the course of this operation a portion of the bridge fell, so that it cannot now be repaired, but mast necessarily be rebuilt.</p> <p>“ All the evidence offered to show the condition of the bridge when it was examined on the 14th of November 1868 was objected to by the defendants as irrelevant, but was admitted subject to their objection.</p> <p>‘ Having been requested by both parties, if I should find that the bridge was not in good, safe and passable repair, to report the amount of the damages sustained by the town of Deerfield in consequence of this breach of duty on the part of the defendants, I received evidence upon this point. The counsel for the relators offered the testimony of several engineers and bridge builders, who were either proved or admitted to be experts upon this subject, to show that the only way to repair the north abutment and the south pier would be to take them down and rebuild them; and these witnesses were permitted to state what would be the expense of thus taking down and rebuilding. To this evidence the defendants objected, and the question of its admissibility is reserved for the opinion of the court. No other evidence as to the amount of damages was produced. Upon the whole evidence" as to the question of damages, I find that, taldng the bridge as it was on the 8th and 14th days of November 1868, the expense of putting it into good, safe and passable repair would be S4000.”</p> <p>On this report and the pleadings, the case was reserved for the determination of the full court. The St. of 1868, c. 294, and the material parts of the St. of 1797, e. 17, are printed in the margin.*</p>

<p>Contract on a promissory note made by the defendant under date of November 26, 1866, for $300, payable four months after date to the order of Alvin N. Claghorn, indorsed by Claghorn to Caleb L. Thayer and by Thayer to the plaintiffs. The answer admitted the making of the note ; alleged that, if ever indorsed to the plaintiffs, it was so after it became due and had been dishonored, and they took it subject to all defences which could have been made to it in Thayer’s hands; that it was made without a lawful consideration; that the consideration for it had failed, which the plaintiffs knew when they took it and Thayer knew when he passed it to them; that this consideration was a sale of Claghorn’s property to the defendant, made in fraud of the insolvent law, with a view to give an unlawful preference to Thayer from the proceeds, Claghorn being at the time insolvent and Thayer being one of his creditors; that the assignee in insolvency of Claghorn had disaffirmed the sale and recovered from the defendant the full value of the property so sold and for which the note was given ; and finally, that the assignee had forbidden the defendant to pay the note, by reason of said preference.</p> <p>At the trial in the superior court, before Scudder, J., the plaintiffs introduced evidence tending to show, by the testimony of Thayer and another witness, that Thayer indorsed the note to them on June 27, 1868, for a valuable consideration. Thayer further testified that the defendant gave him the note in suit and another note, in payment of a debt which Claghorn' was owing to him; “ that said notes were procured from the defendant by an arrangement and understanding between him, Claghorn and the defendant, that if the latter would buy a portion of Claghorn’s tobacco crop the notes given in consideration therefor should be given to the witness in payment of Claghorn’s preexisting indebtedness, as before stated, and the consideration of said notes was the sale of tobacco in pursuance of such arrangement ; that before the giving of the notes he called on Claghom for payment, and Claghorn said he would pay if the defendant would buy his tobacco, and the witness informed the defendant of that immediately afterwards, and of the amount of indebtedness at the same time; that Claghom afterwards on March 18 commenced proceedings in insolvency; and that the assignee in April or May demanded of the witness said note as a part of Claghorn’s estate in insolvency.”</p> <p>“ On the part of the defendant, the record of the proceedings in insolvency was introduced in evidence, showing that Claghorn filed his petition March 16, 1867, on which an adjudication was made and a warrant issued the same day; that the first publication was on March 18, the warrant was returnable April 8, and James M. Crafts was chosen assignee at the first meeting of creditors on said April 8; that the whole amount of debts proved was $2086 ; and that the net amount of assets, including the amount of the judgment against the defendant, was $1643.67. And the defendant introduced evidence tending to show further indebtedness of Claghorn on November 26, 1866, the date of the note in suit, including the debt to Thayer, amounting to about $1300, which had not been proved in the proceedings in insolvency.</p> <p>“ The defendant was introduced as a witness, and testified substantially to the arrangement with Claghorn and Thayer for the purchase of Claghorn’s tobacco and the application of the notes aforesaid to the payment of Claghom’s indebtedness to Thayer, as set forth in the statement of Thayer’s testimony; that he supposed Claghom was solvent at the time he gave the notes, but he had never investigated the matter of his solvency and did not then know anything about it. He further testified that Thayer had called on him to pay the note and he told him he expected to pay it, but that was before the suit by the assignee for the value of the tobacco, and he had never said he would pay after the result of that suit; and that shortly after the proceedings in insolvency he was notified by the assignee not to pay the note to Thayer.</p> <p>“ There was other evidence from other witnesses, tending to show that at the time of the arrangement for the sale of the tobacco, and before November 26, 1866, Thayer had reasonable cause to believe that Claghom was insolvent, and that Claghom intended by the sale to prefer Thayer as a creditor in contravention of the insolvent law.</p> <p>“ The judgment also recovered by the assignee against this defendant for the value of the tobacco which was the consideration of the notes, amounting with costs to some $1800, was put in evidence, which was paid by this defendant.</p> <p>“ At the request of the plaintiffs, after the defendant had put in his evidence, the judge, against the objection of the defendant, ruled that, assuming all to be proved which the defendant’s evidence tended to prove, the defence to the action could not be maintained, and directed a verdict for the plaintiffs,” which was returned. The defendant alleged exceptions, of which the foregoing is the substance, and which provided that the judgment recovered by the assignee against this defendant, with the record thereof, might be referred to.</p>

<p>Tort. The declaration alleged “ that the plaintiff and the defendant, being each possessed of a horse, exchanged the same ; that to induce the plaintiff to make said exchange the defendant falsely and fraudulently represented to the plaintiff that his (the defendant’s) horse was sound, well and all right, and the plaintiff, believing said representations to be true, was thereby induced to make, and did make said exchange of horses with the defendant as aforesaid, and the defendant’s horse, was not sound, well and all right, but was unsound, diseased and sick with some disease which the plaintiff is unable to name, and was of no value, all which the defendant then and there well knew ; ” to the damage of the plaintiff, etc. The answer admitted that the plaintiff and the defendant exchanged horses; denied that the defendant made any false and fraudulent representations as an inducement to the exchange; alleged that he disclosed to the plaintiff fully and fairly all that he knew about the horse which he exchanged; and further alleged “ that the plaintiff, to induce the defendant to make said exchange, falsely and fraudulently represented his (the plaintiff’s) horse to be sound every way, except that it had the scratches, but the defendant says that it had not only the scratches, but had the heaves, was foundered, had cancer warts on the head, and was baulky, and the defendant says that the plaintiff knowingly and grossly deceived and cheated him in said trade and exchange of horses,” to the damage of the defendant, etc., “ and he denies that the plaintiff has any just cause of action against him or is entitled to any damages whatever, but says that the defendant is entitled to damages.”</p> <p>At the trial in the superior court, Scudder, J., “ excluded from the whole case all evidence relating to any representations concerning, or defects in, the horse which the defendant received of the plaintiff in the exchange, and confined the evidence to representations and defects relating to the horse which the defendant let the plaintiff have in the trade or exchange.” The verdict was for the plaintiff, and the defendant alleged exceptions.</p>

<p>in an action for work done for the defendant, the plaintiff, to support an item in his bill of particulars, for- “sixty-one days’ work on house, &c., $122,” may prove days’ work done in grading the ground about the house, if the defendant has not moved for a more definite specification.</p>

<p>Contract on a promissory note. Trial, and verdict for the plaintiff, in the superior court, before Bevens, J., who allowed exceptions which are stated in the opinion.</p>

<p>A party to a j. dgment of a court of competent common law jurisdiction can impeach it for defect of process, or want or insufficiency of service, only by proceedings instituted directly for the purpose.</p> <p>At the trial of an action for contribution, brought by one against the other of two sureties on a bail bond, the full payment of which was enforced against the plaintiff, there was evidence tending to show that the plaintiff and the principal in the bond went together to the defendant and requested him to sign it. The defendant thereupon asked for a ruling that he was not liable if the plaintiff’s request was coupled with the request of the principal. This the judge refused, but instructed the jury that the plaintiff could not recovei if the defendant signed the bond at his request ~r by his inducement, but ffiat if the defendant signed it at the request of the principal, though the request of the plaintiff w*S coupled with it, that would not he a defence. Held, that the defendant had no ground of exception.</p> <p>In an action for contribution, brought by one against the other of two sureties on a bail bond, the fui! payment of which was enforced against the plaintiff, there was evidence tending to show that the plaintiff and the principal in the bond went together to the defendant and requested him to sign it; and the defendant contended that he signed it at the plaintiff's request or by his inducement. The defendant, testifying as a witness, was asked by his counsel, why he signed the bond, at whose request did he sign it, and who induced him to sign it. These questions the judge excluded, on the plaintiff’s objection; but permitted the defendant to state fully all the conversation and what took place between himself and the plaintiff relative to his signing the bond, and also between himself and the principal in the bond as to the same. Held, that the defendant had no ground of exception.</p> <p>In an action by one against the other of two sureties on a bail bond, for contribution towards his payment of an execution recovered against both of them in a scire facias on the bond, the defendant, if liable at all, is liable for his proportion of the officer’s fees for the levy of the execution.</p>

<p>[n a will, after making bequests to certain legatees, the testator continued: “I appoint J. S. trustee, to take and keep the above legacies, the income of which he shall appropriate to their comfort so long as they live. After their decease, what remains I bequeath to the above trastee.” Held, that the gift of the remainder to J. S. was conditional on his accepting the trust, and did not vest if he died, after probate of the will, without doing any act to accept the trust, although before the executor had settled the estate.</p>

<p>To obtain a license, on petition under the Gen. Sts. c. 102, §§ 1-3, to sell land of a deceased person to pay his debts, if there are two or more executors or administrators, all must join in the petition; and a license granted to one of them on his sole petition is invalid, and will not enable them or him to maintain a writ of entry to recover the land under §§ 12,13. Wells, J., dissenting.</p>

Tort against a deputy of the sheriff of Hampshire, for the conversion of some whiskey, gin and beer, with the vessels in which they were contained. The answer admitted the taking of the property September 29, 1868, by the defendant, on an execution against the plaintiff’s husband.

<p>The right of a party to establish the truth of exceptions under the Gen. Sts. c. 115, § 11, is limited to exceptions which have been duly presented to the court under § 7.</p>

<p>A report of a case before verdict by the superior court to this court under the St. of 1869, c. 438, must show what questions of law arose in that court, and were intended to be reported.</p> <p>A defendant in replevin, who has recovered a judgment for a return, may maintain an action on the replevin bond, upon failure of the plaintiff in replevin to return the property, without a previous demand or suing out a writ of return.</p> <p>In an action on a replevin bond, judgment for the plaintiff must be for the penalty of the bond, but execution can issue for so much thereof only as is due and payable in equity and good conscience for the breach proved, and either party has »■ right, under the Gen. Sts. c. 133, § 10, to have the value of the replevied property assessed by a jury.</p> <p>The sum named in a replevin bond as the value of the property is competent but not conclusive evidence of its value, against the obligors, in an action on the bond.</p> <p>The officer’s return, and the appraisal of the property, on a writ of replevin, are not competent evidence of the value of the property, in an action on the replevin bond.</p> <p>In an action on a replevin bond, the testimony of any witness of competent knowledge to the value of the property is admissible.</p> <p>Property attached by an officer upon mesne process was replevied from him. In the replevin he recovered judgment for a return of the property, and no return being made, he brought an action on the replevin bond. Held, that damages recovered against him by the plaintiff in replevin, for a false return on the process upon which he originally attached the property, could not be recouped or set off against the damages recoverable by him in the action on the bond.</p>

<p>Contract to recover the sum of $310.59 paid to the defendant on a demand made by him upon the plaintiff under the Gen. Sts. c. 123, §§ 62, 63. Writ dated May 26,1868. Trial and verdict for the defendant in the superior court, before Seudder, J., who allowed a bill of exceptions, which (excepting the clause 1n-closed in brackets) was as follows:</p> <p>“ It appeared in evidence, that the plaintiff caused to be attached on mesne process, in an action brought by himself against John Quirk, eight carts and harnesses, in the possession of John Quirk; that said property was taken from the attaching officer by a writ of replevin in favor of Patrick Quirk, and was taken away into the state of New York by John Quirk, and has never been returned; that the plaintiff recovered judgment against John Quirk, in the suit on which said goods were attached, fox $230.34, and costs; that a second attachment was made upon said goods in favor of one Dewey against John Quirk, for the sum of $311.28, and costs; that Patrick Quirk gave a bond in the replevin suit in the penal sum of $1000, and the appraisers, appointed by the officer who served the replevin writ, appraised the property at $450; that said officer, who attached said goods, at February term 1868 obtained judgment against Patrick Quirk for a return of said goods, and commenced an action upon the replevin bond, which action is still pending; and that in May 1868 Patrick Quirk made a demand in writing on Lincoln B. Moore for the payment of the sum of $310.59, as the amount due upon a mortgage from John Quirk to Patrick Quirk upon the property attached; and Moore, with a knowledge of all the facts above stated, paid to Patrick Quirk the sum so demanded.</p> <p>“ The plaintiff offered evidence tending to show that the mortgage described in said demand was not stamped, and was recorded by the town clerk of Northampton without having upon it any stamp. The jury were directed to find specially whether said mortgage was or was not stamped, and found that it was not stamped.</p> <p>“ The plaintiff asked the judge to rule that, if said mortgage was not stamped, it would be void, and the plaintiff would be entitled to recover. But the judge declined so to rule, [but ruled that the mortgage would be valid, even though it was not stamped.]</p> <p>“ The plaintiff also asked the judge to rule that, if said mortgage was not stamped, the same was unlawfully recorded, and was of no validity as against the plaintiff, and the plaintiff was entitled to recover. But he declined so to rule.</p> <p>“ The plaintiff asked the judge to rule that, if the defendant demanded said payment while said goods were out of the possession of said officer attaching the same, and without any offer to return the same either to the officer or to the plaintiff, then the plaintiff would be entitled to recover. But he declined so to rule.</p> <p>“ The plaintiff also asked the judge to rule that, if the defendant, after he had demanded said payment and received said sum from the plaintiff while said property was out of the state and in the possession of John Quirk, failed to return said property, either to the plaintiff or to said officer, then the plaintiff would be entitled to recover. But the judge declined so to rule. To which rulings and refusals to rule the plaintiff excepts.”</p>

<p>An indictment on the Gen. Sts. c. 63, § 108, charging that the defendant, on one day, intending to obstruct an engine passing upon a railroad, did on another day put a rail across the track, is bad for want of averment that the act charged was done with criminal intent, or the intent charged was accompanied by any act.</p> <p>A previous acquittal upon an indictment on the Gen. Sts. c. 63, § 107, for obstructing an engine passing upon a railroad, by putting a rail across the track, will not bar the prosecution of another indictment, against the same defendant, on § 108, for putting the rail across the track with intent to obstruct the passage of the engine.</p> <p>Proof of a statute chartering a corporation under a particular name, and of the subsequent public exercise of the franchise, for many years, by an association under that name, will warrant a finding of the actual existence of the corporation, and of its management and ownership of property which it employs in exercising the franchise.</p> <p>On the trial of an indictment on the Gen. Sts. c. 63, § 108, for doing an act with intent to obstruct engines and carriages passing upon a railroad and endanger the safety of persons conveyed in them, the defendant has no ground of exception to a ruling that if he did the act, and the ordinary and usual consequences of so doing would be to cause such obstruction and danger, it is competent for the jury to infer that he did it with that intent, even if he designed to injure no particular person.</p> <p>An indictment on the Gen. Sts. c. 63, § 108, for doing an act with intent to obstruct an engine passing upon a railroad, may be sustained by evidence which also shows that the engine was thereby obstructed.</p>

<p>Indictment for breaking and entering the dwelling-house of Edwin H. Ball at Holyoke, on December 2, 1869, in the night time, with intent to steal.</p> <p>At the trial in the superior court, before Putnam, J., Ball and his wife testified that, on the day before the night of the burglary, the defendant, whom they had never seen before, called at the house, and talked for some time with Ball; that he had a very interesting, manly, pleasant, smooth, gentle, handsome voice, like that of one bom in this country of foreign parents, “ a York state voice;” that between eleven and twelve o’clock that night they were awakened by a noise in their bed-room; that a man at the side of the bed said, “ Keep still, or you are a dead man. If you move, I ’ll take your heart’s blood. Mow, Billy, work fast, take all the money. You at the window, if these folks move, shoot them; ” that the man then sprang from the room; that they could not see him, but identified him at once by his voice as the defendant; and that there were two men engaged in the burglary.</p> <p>The defendant asked the judge to instruct the jury thatidentification, by voice alone, of a person whose voice has been heard by witnesses but once, was insufficient and too uncertain, and no conviction could be had thereon, there being no other peculiarity in the voice than as described in the evidence.” The judge de dined so to instruct the jury, and instructed them that the similarity in the voice was a circumstance to be considered by them with the other circumstances in the case, but at the same time he advised them that they ought not to convict the defendant on this circumstance alone, if no other circumstances tended to satisfy them that the defendant was the man.</p> <p>Several witnesses testified that they saw the defendant at various places in the neighborhood, on the day preceding the night of the burglary; that he made inquiries and statements about purchasing tobacco, and said he was going to see some that day; but that he did not go ; and that he apparently had some connection with two strangers, whom he met at a hotel. The defendant objected to the testimony of these witnesses, and admitted at the same time that he was at Ball’s house on said day; but the judge refused to exclude the testimony.</p> <p>It appeared that, on the morning after the burglary, two men, named Montrose and Stevens, were arrested on suspicion and examined before a trial justice. The defendant offered evidence tending to show that at the examination Ball was called as a witness and testified in reference to the defendant and his voice; that Oscar Ely testified, after Ball, that it was Montrose who had the pleasant voice; and that Ball was afterwards recalled as a witness, and did not contradict what Ely had testified to. But the defendant did not propose to show that Ball was asked anything about the matter, when he was recalled. The attorney for the Commonwealth objected to the admission of the evidence, and the judge excluded it.</p> <p>The Commonwealth offered in evidence an anonymous letter concerning the burglary, and also a letter admitted to have been written by the defendant, and proposed to show, by comparison of the manuscripts, that the same person wrote both. Henry S. Lee testified that he was now treasurer of a savings bank, and had been president of a bank; that he had had experience, in his own business, in the comparison of handwriting in the bodies and signatures of notes; that his business was principally in the comparison of signatures ; that, about twelve years ago, for a period of six or seven years he had been accustomed to compare the bodies as well as the signatures of notes, in the course of his business, for the purpose of determining the genuineness of signatures, though during the last four years he had done this very infrequently ; and that “ he did not consider himself an expert in the comparison of handwriting of instruments to testify, by which he said he meant that he did not consider himself an expert like Mr. Corner of Boston and others, but could satisfy himself.” Charles Marsh testified that he had been cashier of a bank for three years, and had been also in a savings bank for three years; that a part of his business was the study of signatures; that he was accustomed to compare the bodies of notes and checks, but only for the purpose of enabling him to judge as to the genuineness of the signatures; that he had been quite careful in the examination of signatures and could rely on his own judgment. The defendant objected that neither of these witnesses was competent to testify as an expert, but the judge overruled the objection, and they both testified that in their opinion the letters wére written by the same hand.</p> <p>The defendant offered in evidence the depositions of John Felton, James Haynes, Thomas Fenton and Henry I. Benton, to prove an alibi. These deponents testified that on the night, and at about the hour of the burglary, the defendant was at a ball in the city of New York.</p> <p>The following interrogatory was put to the several deponents : “If there was a dance or ball as aforesaid in said city, state whether or not the aforesaid Williams was present at said dance or ball, what time you first saw him, (be as particular as possible about the hour,)- what you saw him do, whether or not you conversed or drank with him, and also state particularly anything which makes you certain of the date and that Williams was so present.”</p> <p>Felton answered: “ Williams was at the ball. When I first saw him it was about half past one o’clock. I saw him during the ball having a few drinks. I conversed and drank with him. All that makes me certain of the date is the target company’s excursion and the ball in the evening. Williams made a remark to me [that he had come in on the New Haven train an hour or so before that.] I am certain Williams was present from that fact.”</p> <p>Haynes answered : “ Williams was present at the ball. I first saw him that night, between twelve and one o’clock. I cannot specify the exact time, but it was nearer one o’clock than twelve. I conversed with him and drank with him seveial times. I remember the day, because it was the day of our target excursion. I remember Williams’s presence, because he expected to turn out with us on the excursion [and often said during that night, that he was sorry that he was away and had done his best to attend the ball].”</p> <p>Fenton answered: “ I saw Williams at the ball. He was present there. I think it was about two o’clock of the morning of December 3 that I first saw him. I saw him dancing, I conversed and drank with him. I am certain of the date, because our target excursion was on December 2, and the ball was on the evening following, and [Williams stated frequently that he was sorry he had not been there to go on the excursion.] He was a member of the target company, and we were expecting him to go with us and help fill out the ranks.”</p> <p>Benton answered: “ Williams was present at the ball. I first saw him, I think, about half past twelve o’clock. I saw him drinking at the bar. I conversed and drank with him. While drinking at the bar [he said he was sorry not to have been out with us on the excursion, but was glad to meet his friends at the ball.] These facts make me certain of the date.”</p> <p>The judge admitted the whole of the depositions except as to the conversations testified to between the different deponents and the defendant. These he excluded, but he allowed the fact that the deponents testified that they did converse with the defendant to go to the jury. The parts excluded are marked in brackets.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>By going to trial on his plea in bar to an indictment and introducing evidence in support of it, without issue first joined thereon, the defendant waives any right of objection on account of the non-joinder.</p> <p>An acquittal on an indictment for maintaining a nuisance by keeping a tenement for the illegal sale and keeping of intoxicating liquors is no bar to an indictment for keeping intoxicating liquors with intent to sell, although the same evidence is relied on to prove both offences.</p>

Tort. The first count of the declaration alleged that the plaintiff was owner of a mare, and also of a pasture properly fenced in Wilbraham; that he placed the mare in the pasture; that the defendant was owner of a mule, and also had in his possession to keep for hire a horse of John Fuller, and possessed a lot of land upon which he turned the mule and the horse, and “ the lot was so badly, negligently and poorly fenced and secured, through the fault and negligence of the…

Tort for personal injuries occasioned to the plaintiff by a train of the defendants coming into collision with a wagon in which he was being driven, at a crossing of the railroad and a highway in Becket. Trial in the superior court, before Wilkinson, J., and verdict for the plaintiff. The defendants alleged exceptions. The case is stated in the opinion.

<p>In an action to recover for injuries to the plaintiff and to a horse and carriage hired by him, brought with the consent of the owner of the property, the plaintiff may recover full damages for the injuries to his person and to the property, assessed in one sum.</p> <p>In assessing damages against a town for injuries to a horse and carriage by a defect in a highway, the jury may take into account the length of time that elapsed before the horse recovered from its injuries, and that was necessary for the repair of the carriage, and the necessary expense of hiring another carriage meanwhile, if that was the most prudent course to adopt.</p>

<p>in an action against a town for injuries occasioned to a traveller in a street, by her falling on an icy ridge while crossing the sidewalk from the carriageway to a shop, the refusal of the judge to instruct the jury that on a well constructed sidewalk, ten or twelve feet wide, and having a sufficient width free from ice or hard snow for the safe passage of travellers along it, a ridge of ice or hard snow extending two and a half feet from the curbstone, from four to six inches high, and sloping both ways, is not a defect for which the town is liable, affords the defendants no ground of exception.</p> <p>In an action against a town for injuries occasioned to a traveller by an icy ridge which was a defect in the highway, the fact that the accident would not have happened, except for a light snow which was falling at the time and concealed the defective place, is no defence, o an action by husband and wife against a town to recover for injuries caused to the wife by a defect in the highway, the fact that the husband knew of the defect in season to have warned his wife of it before the accident is no defence.</p>

Contract for the price of intoxicating liquors sold to the defendant. Writ dated October 23, 1868. At the trial in the superior court, before Dewey, J., it was in dispute, and was submitted to the jury, whether the sale was made in Massachusetts or in Connecticut; the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The case is stated in the opinion. -

<p>Contbact on a promissory note for $500 made by the defendant, payable to the plaintiff or order.</p> <p>At the trial in the superior court, before I)evens, J., it appeared that the plaintiff and the firm of King & Harding were doing business as grocers under the firm name of D. D. Warren & Company, and that at the date of the note the defendant was indebted to the firm of D. D. Warren & Company for goods to the amount of $562.85.</p> <p>The plaintiff introduced evidence tending to show “that the consideration of the note was an agreement on the part of the plaintiff, acting in his individual capacity, to assume and pay for the defendant the amount for which the note was given on the account which D. D. Warren & Company held against the defendant ; that the note was given to him for and on account of said agreement, and ¿hat he fulfilled said agreement, and paid for the defendant to the firm of D. D. Warren & Company the amount named in the note.”</p> <p>The defendant introduced evidence tending to show that part of the account that made the consideration of the note was for intoxicating liquors, sold to him by the firm of D. D. Warren & Company in violation of law.</p> <p>The judge instructed the jury, “ that if the note was made to the plaintiff upon the consideration of an agreement that the plaintiff would pay a certain debt due from the defendant, a part of which was for intoxicating liquors sold in violation of law, and the plaintiff did pay such debt, such agreement and payment would be a sufficient consideration for the note.” The verdict was for the plaintiff, and the defendant alleged exceptions.</p>

<p>Until the record of a case in the superior court is fully extended, the clerk's docket is the record and imports absolute verity.</p> <p>In an action on a bond conditioned to pay the amount of such judgment as may be recovered in a suit against a third person by the plaintiff, the fact that there was a defence to such suit is immaterial, except so far as tending to show fraud in obtaining the judgment therein.</p> <p>In an action on a bond conditioned to pay the amount of such judgment as may be recovered in a suit against a third person by the plaintiff, the facts that such third person was defaulted, that he had at the time of default, and long afterwards, sufficient property to satisfy the debt sought to be recovered in said suit, and that he had since sold the same without any effort on the part of the plaintiff to prevent it, do not of themselves tend to Drove collusion, and are immaterial.</p>

<p>On an Issue whether a person who has left the state has changed his residence, he may testify as to his intent and his declarations of intent on leaving the state.</p> <p>If a defendant is actually in the Commonwealth at the time of service of process, although his permanent residence is elsewhere, he is not entitled, under the Gen. Sts. <?. 123, § 28, to further notice.</p> <p>A deposition is admissible in evidence, although certified to be the deposition of John Grotecloss while the deponent calls himself John H. Grotecloss and signs it by that name.</p>

<p>In an action in which the plaintiff sought to avoid the effect of the statute of limitations by evidence that the defendant had not been within the Commonwealth since the time when the cause of action accrued, it was admitted that at that time he resided in another state which he soon after left for the west. Reid, that the admission of the testimony of several witnesses, that they had not seen the defendant in this Commonwealth since that time, gave him no ground of exception.</p> <p>A deponent in his answers referred to certain books, and made them part of his answers. The books were not attached to the deposition, but were inclosed with it in a wrapper, sealed up and directed to the clerk of the court, who broke the inclosure, took the deposition and books therefrom at the trial, and kept them in his custody. Reid, that they were admissible in evidence.</p> <p>In an action on a promissory note given in the name of a firm, by one of its members, to the plaintiff, the consideration of which was in part goods sold to a former firm, composed of different members, although carrying on the same business, there was evidence that, at an interview lasting an hour, at which the plaintiff’s account was presented and examined and the note signed therefor, J. S., a member of both firms, was present, although he did not join in the conversation and had no charge of the financial business of the firms; and that the account was made out to the new firm, although many of the items were due from the old firm; but there was no evidence of any intentional deception on the part of the plaintiff; there was no instruction given to the jury on the effect of a misrepresentation by the plaintiff, but none was specifically requested. Reid, that the evidence justified the jury in finding an assent by J. S. to the giving of the note; and that he had no ground of exception.</p> <p>J. a new firm, formed from an old firm by the retirement of a member, succeeds to and continues the business of the old firm in the same place, slight evidence is sufficient to warrant the inference that it has assumed the liabilities of the old firm; and if it has assumed such liabilities, a partner has the same right to give partnership notes in payment of them as he has to give such notes in payment of the debts of the new firm.</p> <p>The objection that authority in a partner to give a partnership note is not incident to the business of a firm, if not made at the trial, cannot be taken at the argument of a bill oi exceptions.</p>

<p>A. made a written agreement dated February 1, 1869, with B. & C., partners, to work for the firm during the ensuing year, for a salary of $1800 and, in addition, one fourth of the net profits of the business, and that in computing these profits no deduction should be made for bad debts, but interest on the capital, which was wholly furnished by B. and C., should be deducted. In an action by A. against them, to recover his one fourth, they offered evidence to show that he had worked for them during the year preceding February 1, 1869, under a written agreement for a salary of $1800 and, in addition, one fourth of the net profits; that for said year they received for their own salaries from the net profits the sum of $3300; and that articles of partnership, dated February 1, 1869, . were entered into between them, containing a provision, which was known to him, that for the ensuing year B. should have a salary of $1800, and O. a salary of $1500, before determining the profits to be divided between them. Meld, that the evidence was admissible, and, being uncontrolled, showed that the salaries of A., B. and G. were to be deducted from the gross profits in order to ascertain the net profits in which A. was to share.</p>

Tort for the conversion of farming utensils. Writ dated April 12, 1869. At the trial in the superior court, before Dewey, J., the plaintiff offered evidence that on September 28,1868, he purchased che chattels from William H. Cleaveland, subject to a mortgage from Cleaveland to the defendant, and that the defendant on the next day, claiming the property as his own under a foreclosure of the mortgage, caused a portion thereof to be sold by public auction.

<p>In an action on a guaranty that stock sold should be worth a certain sum, market value, within one year from date, the plaintiff contended that the measure of damages was the difference between that sum and the market value at the end of the year; the defendant contended that it was the difference between said sum and the highest value the stock reached in the market during the year. Reid, that, as between these two measures, the latter was correct.</p>

Trustee process by the firm of L. L. Kingman & Company against a minor for necessaries. The Holyoke Savings Bank were summoned as trustees November 18, 1868, and answered that they then had in their hands $136.84, property of the defendant. Benjamin F. Perkins appeared as claimant of the funds in the hands of the trustees.

<p>Contract for work performed by the plaintiff in lathing a house of the defendant at a stipulated price by the day.</p> <p>At the trial in the superior court, before Dewey, J., the plaintiff introduced evidence tending to prove that he was employed by the defendant to do the work for him by the day. The defendant introduced evidence tending to show that he did not employ the plaintiff to do the work, but that the plaintiff was sent to the house to do it by Alpheus Hawks, a builder, under an oral contract which Hawks had made with him previously, to do all Hawks’s lathing for the season, at a stipulated price by the bundle. The defendant then offered to prove that he had contracted orally with Hawks, to do all the lathing of the house, before the plaintiff commenced work there. To the introduction of this evidence the, plaintiff objected, and the judge refused to admit it. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Replevin of household furniture. At the term of the superior court at which the action was entered, the defendant moved to dismiss it for want of jurisdiction; and Dewey, J., by consent of the parties, reported the question, before verdict, for the determination of this court, on facts which are stated in the opinion.

Contract against the administrators of the estate of Rodolphus Converse, on a promissory note made by him, dated August 25,1856, and payable on demand to Maria Clark or order. The note was given in payment for services rendered to the maker by the payee ; and was left in the hands of the attesting witness, for the benefit of the payee. The maker and payee intermarried, September 24, 1856.

Contbact by the plaintiff as administrator of the estate of his wife, Mary R. Mason, to recover the amount of a promissory note given to her by the defendant. At the trial in the superior court, before Rockwell, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The case is stated in the opinion.

<p>Wbit oe do web, in which the demandant, as widow of Horatio Sargeant, claimed dower of land in Springfield. The case was submitted to the judgment of the court on agreed facts, the material part of which was as follows :</p> <p>Horatio Sargeant, being seised of a parcel of land in Springfield, mortgaged it to Benjamin Day, by a deed in which the demandant joined to release dower. He subsequently became insolvent, and afterwards died. Chester W. Chapin was appointed his assignee in insolvency, and all the insolvent’s estate was conveyed to him. Subsequently the assignee paid to Day the amount secured by the mortgage, out • of money belonging to the insolvent estate, took at the same time an assignment of the mortgage to himself as assignee,.and afterwards conveyed the land in different parcels by different quitclaim deeds, in which he conveyed his interest both as assignee in insolvency and also under the assignment of the mortgage. The tenant claimed under the grantee in one of 'these deeds.</p>

<p>A,, being in possession of land as tenant paying rent, took an assignment of a mortgage thereon to himself, and from that time remained in possession, claiming to be the absolute owner, for three years, when he conveyed the premises to B. by a quitclaim deed, in which he described them as “now in the possession and seisin of me.” Before this conveyance, A. assigned the mortgage to secure a debt, and after the conveyance B. paid the debt. Meld, that A.’s widow was not entitled to maintain a writ of dower against B.</p>

<p>A testator by his will gave to J. C. “ my homestead, including the outbuilding, garden, tillage and pasture land, live stock, farming tools,” on condition that he should maintain S. M. and M. M. during their lives; and directed his executors to sell aU'other real estate that he might die possessed of. By a codicil, made on the day of his death, he ratified and confirmed his will. At the dates of his will and of his death, he owned three parcels of land. The first parcel, which had been conveyed to him in different parts by different deeds, comprised his house lot with a mansion-house and outbuildings, and a cottage originally not divided from said lot but afterwards surrounded by a fence and usually occupied by his manservant; this parcel contained also a small amount of pasture, mowing and tillage land. On the second parcel, which was small, and part of which had been conveyed to him at the same time with a portion of the first parcel, and part by another deed, and which was separated from the first parcel only by a railroad, he had built a cottage for S. M. and M. M., who were dependent on his bqunty. The third parcel, containing about eight acres, and lying a short distance from the first parcel, consisted of pasture, mowing and tillage land. The first and third parcels were fanned together, and the products of both indiscriminately used for the support of his family and live stock. The stock could not have been supported from the products of the first parcel. The testator at the time of the will had other real estate, but had parted with it all at the time of his death. Held, that the three parcels passed by the devise to J. C.</p>

Wbit of entby to recover “ a certain piece of land situate in Agawam,” formerly West Springfield, “containing ten acres, more or less, being lot numbered- eighteen in the south range of ten acre lots, so called.” The tenant pleaded nul disseisin as to part of the demanded premises, and disclaimed as to the residue.

<p>Bill is equity against Patrick Fitzgerald and George E. Paige, to redeem from a mortgage a parcel of land in Springfield. The case was referred to a master, and on the pleadings and his report was reserved by the chief justice for the consideration of the full court. The facts are stated in the opinion.</p>

Writ oe entry by the assignee in bankruptcy of Addison A. Moseley, to recover land in Springfield, alleged to have been fraudulently conveyed by the bankrupt to the tenant.

<p>Petition under the Gen. Sts. c. 43, §§ 19, 20, to the county commissioners of Hampden, for a jury to revise the location on the petitioner’s land of a highway in Westfield. The alteration sought for was a reduction of the width of the way and a change of its position eastward. The verdict of the jury was set aside by the superior court on the petitioner’s exceptions to rulings of the officer who presided at the trial; and the respondents appealed. The case is stated in the opinion.</p>

Contract on a policy of insurance made by the defendants December 28, 1868, upon the life of Morris Morton, of Chicopee, .n the sum of $5000, payable on his death to the plaintiff, who was his wife, and in the writ described herself as of Chicopee, and alleged in her declaration that he died March 10, 1870, and that all the conditions of the policy requisite to entitle her to a recovery thereon had been complied witn. Writ dated May 28, 1870.

<p>A. contract by which one party, for a consideration, promises to make a certain payment of money upon the destruction or injury of something in which the other party has an interest, is a contract of insurance, whatever may be the terms of payment of the consideration by the assured, or the mode of estimating or securing payment of the sum to be paid by the insurer in event of loss; and although the object of the insurer in making the contract is benevolent and not speculative.</p> <p>The Connecticut Mutual Benefit Company, chartered by the Connecticut St. of 1869, c. 97, is an insurance company, within the St. of this Commonwealth of 1867, c. 267, § 5.</p>

Indictment for attempting to commit suicide. In the superior court, before the jury were empanelled, the defendant filed, ana Dewey, J., overruled, a motion to quash the indictment, for the reason, among others, that it did not set forth any crime punishable by the laws of the Commonwealth. On the trial the defendant was found guilty, and alleged exceptions.

Indictment for larceny of a horse owned by Joseph H. Davenport, at Sterling.

Indictment on the Gen. Sts. c. 168, § 8, for attempting to , commit larceny from the person; averring that the defendant on May 25,1870, at Milford, “ did attempt to steal, take and carry away from the person of Andrew Franklin, the money, goods and chattels of the said Franklin, then and there being in the possession and upon the person of the said Franklin, that being an offence prohibited by law, and in such attempt did then and there do a certain overt act towards the…

<p>Evidence that J. S., by falsely pretending to a dealer in machines that he was authorized • by persons in another .state, whom he named, (but who were fictitious persons,) to give orders in their behalf for the purchase of such machines to be sent to them there by a common carrier, induced the dealer, to deliver machines to the carrier addressed as ordered, and intended to receive them himself, and did so receive them, will sustain an indictment against him for obtaining the machines by false pretences in the county where he made the pretences and the machines were delivered to the carrier.</p>

Complaint on the St. of 1869, c. 415, § 44, to the municipal court of the city of Worcester, for a warrant of search for certain intoxicating liquors, alleged to be kept for unlawful sale, in that city, by Zephaniah Spurr and Albert Williams. On the warrant, the liquors were seized ; and Spurr and Williams were summoned as claimants.

<p>The first case was a complaint on the St. of 1869, c. 415, § 44, to the municipal court of the city of Worcester, for a warrant to search for certain intoxicating liquors alleged to be kept for unlawful sale, in that city, by Andrew Martin. The liquors were seized on the warrant; and Martin was summoned as claimant. He appeared accordingly in the superior court; and, before the jury were empanelled, he filed a motion to quash the proceedings, for the reason, among others, “ that it was not alleged in the warrant that probable cause has been shown for issuing the same.” This motion Dewey, J., overruled; on the trial, judgment was rendered for the forfeiture of the liquors; and the claimant alleged exceptions.</p>

<p>Complaint on the St. of 1869, c. 415, § 44, to the police court of Milford, by Augustus W. Keene and William P. Miller, for a warrant to search the cellar of a dwelling-house occupied by Patrick Gillon in that town, for certain intoxicating liquors alleged to be kept by him in said cellar, as a store, for unlawful sale.</p> <p>The affidavit, made by Keene, pursuant to § 45,* was incorporated in the ,body of the complaint, in the manner designated in the form given in § 66, and was as follows:</p> <p>“And I, Augustus W. Keene, one of the above named complainants, on oath say, that I have reason to believe, and do believe, that intoxicating liquor, such as is above mentioned, has been taken from the house above mentioned, for the purpose of being sold in this Commonwealth by the occupant of said house, and with the consent and permission of the occupant of said house, contrary to law, within one month next before this day, and that said liquor above mentioned is now kept in said house for sale by said Gillon, contrary to law; and my belief, aforesaid is founded on the following facts and circumstances : that I have seen vessels, which I believe contained intoxicating liquor, con-, veyed from said cellar by agents of said Gillon to a saloon of said Gillon’s near said cellar.”</p> <p>The liquors were seized on the warrant; and Gillon was summoned as claimant, appeared accordingly in the superior court, and before the jury were empanelled filed a motion to quash the proceedings as insufficient in law, among other reasons, “ because the statement in the separate oath of Keene of the alleged facts and' circumstances on which the belief is founded, touching which he made such oath, is insufficient in law, as the criminating part thereof, touching intoxicating liquors, rests upon belief, and the alleged facts and circumstances are not alleged as taking place within one month next before making such complaint, or at the time of making it, and the alleged facts and circumstances are not facts and circumstances authorizing such belief or affording a sufficient reason therefor,” and “ because Keene in his said separate oath does not state the facts and circumstances on which his said belief is founded.” This motion Dewey, J., overruled; on the trial, judgment was rendered for a forfeiture of the liquors; and the claimant alleged exceptions.</p>

<p>The punishment prescribed by the .Gen. Sts. c. 87, § 7, for keeping a place deemed a common nuisance under § 6, was by fine not exceeding $1000 “or” imprisonment in jail not exceeding one year. The St. of 1863, c. 78, gave jurisdiction of such offence to police courts concurrently with the superior court, and provided in § 2 that whenever a police court should exercise final jurisdiction therein the punishment should be limited to a fine not exceeding $100 “ and ” imprisonment not exceeding one year in the jail or house of correction. Held, that this statute did not authorize police courts to punish the offence with both fine and imprisonment.</p>

<p>Complaint for keeping a liquor nuisance. At. the trial in the superior court, before Dewey, J., “ the evidence tended to show that the defendant sold what was called by the witnesses for the Commonwealth strong beer, and by the defendant’s witnesses home-brewed beer; and there was evidence of no other sales; and these sales were only shown by delivery. There was evidence that persons were seen going from the house with pitchers, jugs and pails. There was also evidence that the beer was made by the defendant’s wife, and the witnesses testified that they saw her making it.”</p> <p>The defendant requested the judge to instruct the jury “ that, if they were to convict upon the evidence of selling home-brewed beer, the Commonwealth must prove that the home-brewed beei was intoxicating; and that, before they could consider the evidence regarding persons going out of the defendant’s house with pitchers, pails and jugs, the Commonwealth must show what the pitchers, pails and jugs contained, if anything.”</p> <p>The judge declined so to rule, but instructed the jury that a conviction of the defendant would be warranted by proof that the defendant kept the place for the purpose of making illegal sales of strong beer; “ that, for all the purposes óf the complaint, if the jury were satisfied that the defendant made sales of this beer, (called home-brewed beer,) and this beer was intoxicating, then they would be warranted in convicting him; that the fact of persons going out of the defendant’s house during the time alleged, with jugs, pails and pitchers, was to be considered by them; and if that fact, in connection with the other evidence in the case, aided them in coming to the conclusion that the defendant sold to those persons beer which was intoxicating, and that the tenement was kept for the purpose of selling it, then they would be warranted in finding the defendant guilty.”</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Complaint, dated February 10,1870, to the municipal court of Worcester, for keeping a liquor nuisance in that city on July 1, 1869, and divers other days and times .between that day and the date of the complaint. On the defendant’s motion, specifications of time were ordered; and were filed accordingly, specifying October 21, November 1, and December 16, 1869, and January 4, i870, “ and no other times,” as the times when the offence was committed.

Complaint for maintaining a tenement in Milford as a liquor nuisance. At the trial in the superior court, the defendant set up, in bar of the proceedings, the record of his conviction, at the same term of that court, on a complaint for keeping intoxicating liquors in the'tenement with intent to sell them in violation of the St. of 1869, c. 415; and offered testimony to show that the evidence relied on by the Commonwealth to prove the two offences was the same.

Tort for the killing of a cow on the defendants’ railroad in Worcester, by their locomotive engine. Trial in the superior court, before Eevens, J., who reported this case: “ The plaintiff was a farmer, owning a farm in Worcester, traversed by the defendants’ railroad track. He had owned this farm since 1843. The defendants’ road was constructed in 1848.

Tort for the killing of a horse on the defendants’ railroad in Fitchburg by their locomotive engine.

Tort on the Gen. Sts. c. 63, § 101, for the destruction of the plaintiff’s farm-house and outbuildings by fire communicated by the defendants’ locomotive engine. At the trial in the superior court, before Devens, J., it appeared that the plaintiff’s farm was owned on February 27,1857, by John D. Lovell, who that day conveyed it to James D. Moore, who conveyed it to the plaintiff October 31, 1860; both deeds containing covenants of full warranty and freedom from incumbrances.

<p>Tort for personal injuries sustained by the plaintiff by being struck by the defendants’ locomotive engine on their railroad track in Ashland, and alleged to have been caused by their negligence. Trial in this court, before Morton, J., who reported the case as follows:</p> <p>“ On September 17, 1869, the plaintiff attempted to cross the south track of the defendants’ railroad from the platform of theii passenger-house at Ashland, in order to take passage on a train of their cars standing upon the north track, to go to Grafton The plaintiff resided in Grafton; was engaged in business ai Framingham; was in the habit of going from Grafton to Framingham by one of the morning trains, and returning to Grafton ir the afternoon by the train upon which he attempted to take pas sage, and for that purpose had provided himself with a commutation ticket which entitled him to twenty-six conveyances over the road, between Framingham and Grafton, and which then entitled him to several passages over the road. On the afternoon in question, having occasion to transact some business in Ashland, he went there, with another person, in a carriage from Framingham, a distance of about four miles, (Ashland being one of the intermediate stations between Framingham and Grafton,) passing the station and crossing hereinafter mentioned; and having transacted his business he drove to the station-house at Ashland, crossing the tracks of the railroad at a highway crossing about two hundred feet west of the station-house. Arriving at the station-house, which stood upon the south of the tracks, he alighted from his carriage upon the southwest corner of the platform there. As he was crossing the tracks as aforesaid at the highway crossing, the train in which he sought to take passage arrived in front of the station-house; and stopped for the purpose of receiving and discharging passengers, while he was passing from the crossing to the place where he alighted.</p> <p>“There was an open and travelled place from the highway which crossed the track as aforesaid on the north side of the railroad ; and a platform on the north side of the north track; to which platform the plaintiff could have come and taken the train which he desired to take, by passing over said travelled place, without crossing the tracks as aforesaid or going to the south side of the railroad; but the plaintiff said that he did not know at the time that he could so take the train.</p> <p>“ The usual time of stopping was about one minute. Having alighted, the plaintiff made some remark to the person in the carriage, and then proceeded in a straight line down the platform, by the west end of the station-house, to the railroad track, the baggage car of the train being immediately in front of him. When crossing the railroad before arriving at the depot, as aforesaid, he had observed a person, whom he thought to be one Wetherby, standing on the south platform about seventy-five feet west of the northwest comer of the station-house ; and as he passed from hia carriage towards the track, he looked at this person to see if it was Wetherby, — looking in a northwesterly direction, so that his line of vision embraced as much of the railroad track as could be seen from the point where he was. He continued to look at the person while walking about half the distance from the place where he alighted to the-railroad track; and then he turned his head to the front, and looked towards the baggage car of the train he was to go on, being attracted by some article that was being removed from the car. While looking in the northwesterly direction at said person, he saw persons standing upon the platform; he also saw a small building used as a flagman’s station, and his view of the track was somewhat obstructed by the building and by the persons standing on the platform. He said that he would not say that he saw any part of the railroad track when looking in a northwesterly direction as aforesaid; and he did not state that at any time he looked for the purpose of seeing if a train' was or was not coming on the track on which he stepped when he turned his head to the front. He also saw persons passing to and fro between the passenger-house and the train upon which he intended to take passage. Arriving at the edge of the platform, he stepped upon the •ailroad track, attempting to cross where it was customary for passengers to cross ; and in attempting to cross he went a little diagonally across the track toward the train, with his back partially to the west; and having taken one or two steps upon said track, he was struck and seriously injured by the engine of a train approaching from the west, which was twenty minutes behind time, running at an unusual rate of speed without any warning of its approach.</p> <p>“ There was no plank walk at the place where the plaintiff so stepped on the track. He testified that the track was straight for half a mile towards the west, the direction from which the train that struck him came. The distance from the place on the platform where he alighted from his carriage, to the railroad track where he was struck, was about forty feet, which distance he walked without interruption at an ordinary walking gait; he saw no approaching train, when looking in the northwesterly direction as aforesaid, and he did not again look in that direction before he was struck ; he heard no approaching train; he knew that the train by which he was injured was not due at that time, but supposed it had passed about twenty minutes before, Framingham being the usual place of the meeting of these trains; there was no flagman at the crossing when he passed with his carriage a minute or so before, as was usual when trains were expected; he was not warned of the approaching train by any agent or employee of the defendants ; there was nothing about his person or dress to prevent his seeing or hearing as well as persons ordinarily can; and he did not expect any train to come on that track at that time.</p> <p>“ Upon the foregoing facts, the defendants asked the judge to direct a verdict in their favor, on the ground that there was no evidence that the plaintiff was in the exercise of due care at the time of the injury. The judge directed a pro formd verdict for the defendants; and the case is reported for the opinion of the full court upon that question.”</p>

<p>Tort for assault and battery, commenced January 8, 1866, before a justice of the peace, who gave judgment for the plaintiff. The defendants appealed to the superior court, which ruled that,, by reason of a certain agreement of the parties before the magistrate, the defendants had no right to file an answer denying their liability. Exceptions were taken to this ruling, and sustained by this court, which ordered by its rescript that the defendants have leave to file an answer to the merits. See 13 Allen, 86. The defendants thereupon, at September term 1867 of the superior court, filed such an answer.</p> <p>At December term 1867 of that court the defendants moved for leave to file this answer: “ The defendants say that the plaintiff ought not to maintain her action against them, because at the time of suing out her writ against them, and ever since, she was and now is an Indian of the Dudley tribe and resident on the lands reserved to said tribe, which lands are known and called aa the Dudley reservation, and under guardianship as such; by reason of all which she cannot sue on her own behalf.” Leave was granted accordingly, reserving the question of terms, and the plaintiff appealed from the order granting leave.</p> <p>At September term 1870 of the superior court, the case came on to be heard upon the issue made by the answer in abatement; the parties agreed to waive a trial by jury, and further agreed that the facts set forth in this answer were true, except that the plaintiff did not reside on the lands reserved to her tribe, but dwelt with her tribe on lands owned by the Commonwealth and purchased in 1857 for their occupation, and to which the whole tribe had been removed from said reservation; and JDevens, J., reported the case to this court, the parties consenting, and agreeing “ that if the court could not lawfully give leave to file the present answer, or if the facts aforesaid are insufficient to defeat the action, the defendants shall answer over; otherwise, judgment to be for the defendants.”</p>

<p>In an action by B. against A. for the malicious prosecution of an action by A. against B. for deceit in representing that a corporation owned valuable land in Pennsylvania, B, introduced evidence to show that he did not represent that the corporation owned land in Pennsylvania. Held, that it was thereupon competent for A., under an answer which was merely a general denial of each and every allegation in the plaintiff’s declaration, to prove that the corporation owned land in New York, which was the land that B. represented to be valuable, and that when A. brought the action for deceit he supposed the land to be in Pennsylvania, and so instructed his attorney.</p>

<p>In an action for maliciously burning the plaintiff’s building, neither the defendant’s liability, nor the measure of it, is affected by the payment of a loss to the plaintiff by insurers of the building, or by his agreeing with them to prosecute the action for their benefit after indemnifying himself for his damages beyond the sum they paid him.</p>

<p>A declaration alleging that the plaintiff signed a promissory note as surety for the defendant, and annexing a copy of the note; that he thereby became liable to pay, and did pay, the amount of the note to its holder; and that the defendant owes him said amount; .is good, after verdict, as a declaration for money paid to the defendant’s use.</p> <p>On the trial of an action for money paid to the defendant’s use by the plaintiff as surety on a promissory note made by the defendant, evidence that at the time of such payment the defendant had a demand against the payee of the note, which the plaintiff knew, ana that the plaintiff nevertheless paid the note without the defendant’s consent and without suit brought thereon, is immaterial, whether their liability on the note was joint or joint and several.</p>

<p>Appeal from the decision of commissioners appointed by the probate court to receive and examine all claims of creditors against the insolvent estate of Warren Hunt, deceased, allowing the claim of James W. Clark as holder of a promissory note made by the deceased and dated May 15, 1867, for $2000 payable five months after date to the order of Francis W. Hunt, and by him indorsed in blank. Trial before Morton, J., who reported the case. The material parts of the report were as follows:</p> <p>“ At the trial, the original note was produced, duly stamped, and the signatures of Warren Hunt as maker, and Francis W. Hunt as indorser in blank, were proved by the testimony of Jesse F. Alderman. Alderman also testified that he was a broker in Boston, and that, soon after the date of the note and before the death of Warren Hunt, Francis W. Hunt put the note into his hands, indorsed by said Francis in blank, to be sold by him as a broker for said Francis; that he sold it to James W. Clark, the plaintiff, July 2, 1867, for its full value less the usual rate of discount ; that Warren Hunt died June 7, 1867; that he knew at the time of selling it that Warren Hunt was dead; and that Clark also knew it. Alderman further testified that he had been accustomed to sell the paper of both Warren Hunt and Francis W. Hunt; that this as well as other notes of a similar character were left with him to sell, to raise money to pay other similar notes then maturing; that Francis W. Hunt brought this note to him ; that he sold it as the note of said Francis ; that it was an accommodation note; and that Warren Hunt had told him the notes were for the accommodation of Francis W. Hunt.”</p> <p>“ Clark testified that he was the holder of the note ; that he paid Alderman the full value for it, less the then usual rates of discount, before the same matured; that it was then signed by Warren Hunt and indorsed in blank by Francis W. Hunt; and that he bought it in good faith, without suspicion that there was anything wrong, about it. All formal matters necessary to a recovery by Clark were either proved or admitted.</p> <p>“ The defendants contended that inasmuch as the note was not sold to Clark until after the death of Warren Hunt, a fact known by Clark at the time of the purchase, it could not be proved by Clark against Warren Hunt’s estate. But the judge held that Clark was entitled to prove the claim against the estate, and at the request of the defendants reports the case for the determination of the full court; if upon the facts set forth Clark is entitled to prove the note, judgment to be entered affirming the decision of the commissioners allowing this claim, otherwise a new trial to be granted.”</p>

<p>Appeal from a decree of the probate court dismissing a petition of Alvin Hall for the appointment of an administrator with the will annexed of the estate of Warren Hunt; submitted to the determination of the full court on these facts agreed:</p> <p>“Warren Hunt, late of Douglas, died June 7, 1867, leaving a last will and testament, which was admitted to probate July 2, 1867, in the probate court for the county of Worcester, and a decree approving and allowing said will was entered, and letters testamentary were issued thereon to Francis W. Hunt, the executor named therein, who gave a probate bond in the ordinary form and took upon himself the execution of the trust. Said executor represented the estate insolvent, December 30, 1868; and on January 5, 1869, commissioners were appointed to receive pud examine claims. On February 16, 1869, Francis W. Hunt resigned the trust, and was discharged therefrom by the judge of said court.</p> <p>“ On March 2,1869, Edward C. Thayer and Fenner Batcheller were upon their own application appointed by said judge administrators with the will annexed of the estate of the deceased not already administered, and gave bonds for the discharge of the trust, and letters of administration were issued to them. At a meeting of the commissioners, Joseph Thayer, of Uxbridge, presented a claim against the estate for $3939.34, consisting of two promissory notes made by the deceased in his lifetime; and the same was allowed by the commissioners, who afterwards made their report into the court allowing it, and the report was accepted by said judge. The claim was held by Joseph Thayer at the decease of Warren Hunt; and he has ever since been, and is now, the holder thereof. The estate of the deceased is insuffi eient to pay his debts in full.</p> <p>“ Henry Chapin, Esquire, was during all said time, and is now the judge of said court, and sat and acted as such judge in all said proceedings, signed said decree, issued and signed the letters testamentary and letters of administration, and approved the probate bonds, which run to him by name in the usual form of such bonds. During said time the judge was related to Joseph Thayer and to Edward C. Thayer, as follows : the wife of the judge was the daughter of Joseph Thayer and the sister of Edward C. Thayer, the latter being the son of Joseph Thayer.</p> <p>“ On October 8, 1869, the appellant, being a creditor of the deceased, signed and filed in said court the following paper : 6 In the matter of the will of Warren Hunt, deceased. And now Alvin Hall, of Douglas, in the county of Worcester, comes and objects that Henry Chapin, Esquire, judge of probate and insolvency for said county, is disqualified from acting in said matter, for the following reasons, namely-: 1. That Joseph Thayer, of Uxbridge, in said county, is a creditor of the estate of the said Hunt, to the amount of four thousand dollars, and said Thayer is the father in law of the said judge. 2. That Edward C. Thayer, of said Uxbridge, claims to be the administrator with the will annexed of said estate, and is unlawfully acting as such, and is the brother in law of the said judge.’</p> <p>“ The appellant at the same time presented in said court a petition, dated October 5, 1869, 6 that the will of Warren Hunt, late of Douglas, in said county, deceased, was duly proved and allowed on July 2, 1867, in said court, and Francis W. Hunt appointed executor thereof, and that said executor was removed from said office upon his own petition to said court, without having fully executed said will; that the petitioner is a creditor of the deceased; and that his claim is not disputed ; wherefore your petitioner prays that Horace Leland, of Sutton, in said county, or some other suitable person, may be appointed administrator with the will annexed of the estate of the deceased not already administered.’</p> <p>“ On November 25, 1869, a decree dismissing this petition was entered in said court ” by Charles Mattoon, Esquire, the judge of probate for the county of Franklin, acting in the place and at the request of the judge for the county of Worcester, at a probate court on that day held at Worcester, “it appearing,” in the language of the decree, “ that the will of said deceased was duly proved and allowed on the second day of July, A. D. 1867, by said court, and that on the second day of March, A. D. 1869, Edward C. Thayer and Fenner Batcheller were duly appointed administrators with the will annexed of said estate, and gave bonds accordingly, and that said Thayer and Batcheller have not resigned nor been removed from said trust, but are still in the performance thereof; and all parties interested having been notified according to the order of court, and objecting said Thayer and Batcheller thereto.”</p> <p>“ On December 17, 1869, Hall claimed an appeal in due form to this court from said decree, and gave due notice thereof in said probate office and filed therein his reasons of appeal, and gave due notice thereof to the said Edward C. Thayer and Fenner Batcheller, who appeared to oppose said petition.” The reasons were as follows: “ 1. Because the facts set forth in said petition are true, and the prayer thereof ought to have been granted. 2. Because Edwin 0. Thayer and Fenner Batcheller were never duly and legally appointed administrators .with the will annexed of said estate, and never gave bond for the discharge of said trust; nor was any bond given by them duly approved, nor any letters of administration with the will annexed upon said estate legally issued and granted to them by any judge of probate having jurisdiction of said estate, and any such bond and letters of administration are illegal, void, of no force or validity.”</p>

<p>A county commissioner is disqualified by personal interest to take part in adjudications of his board laying out and directing the construction of a highway over land of his sister’s husband, and entitling him to damages by reason of the location; and such proceedings cannot be rendered valid by any subsequent waiver, consent or release, but are wholly void.</p>

Appeal by the husband of Catherine Burroughs from a decree of the probate court, disallowing an instrument offered for probate as her last will and testament. This instrument was dated April 5, 1846 ; devised in equal undivided portions to the appellant and Brigham Nutting “the home farm” of the testatrix, which it described as all the real estate which she owned; and made no provision for the disposition of personal property.

<p>The administrator of the insolvent estate of a deceased person may maintain a bill In equity, filed within two years after giving bond, to recover for the benefit of the creditors, even if all their claims are otherwise barred by the special statute of limitations, Gen. Sts. c. 97, § 5, property conveyed by the intestate in his lifetime in fraud of them, which when recovered .will constitute new assets within § 6.</p>

<p>A written agreement by the mother (herself an infant) of a boy less than fourteen yean old, whose father is dead, to surrender all her rights of custody and control of and communication with the boy, to a man and his wife who in consideration thereof agree to take suitable care of him, educate him at the public schools, and teach him a trade, gives them no such claim to the boy as to control the discretion of the. probate court in subsequently appointing another person his guardian with the mother’s assent.</p>

Bastardy PROCESS under the Gen. Sts. c. 72. A warrant was issued, and the defendant gave bond to appear and answer at the next term of the superior court.

Contract on an award made by arbitrators between the plaintiff and the defendant. Writ dated September 27, 1869.

Replevin by the firm of Walker & Company of three hundred pairs of boots from the custody of a deputy of the sheriff of Worcester, who had attached them as property of the firm of Alexander & Company on mesne process in an action brought by Luke H. Kingsbury against that firm.

<p>A mechanic who, under a contract with a mill-owner that it should remain the builder’s property till paid for, built and set up in the mill a machine in such a manner that as between mortgagor and mortgagee of the mill it was permanently annexed to the realty, and then upon default of payment severed and removed it, has a right to hold it against the subsequent assignee of such a mortgage, if the mortgagee consented to the arrangement by which it was placed there, or, being in possession under Mn mortgage, treated it as personal property and consented to its removal.</p>

<p>Writ oe entry to recover a parcel of real estate in Brook-field ; submitted to the judgment of the court on agreed facto which appear in the opinion.</p>

<p>Contract. The declaration was as follows: “ And the plaintiff says that he and the defendant were copartners, and agreed to dissolve their copartnership, and by said agreement the defendant was to purchase the plaintiff’s interest therein, and the defendant did purchase the plaintiff’s said interest and paid therefor $653.62, and promised the plaintiff that, in case the demands owed by the copartnership to its creditors in Boston did not amount to so much as represented by the defendant at the time of the agreement aforesaid, he, the defendant, would pay the plaintiff an additional sum, to wit, one half of the difference between the amount actually due said creditors and the amount represented by the defendant to be so due. And the plaintiff says that the defendant represented and alleged that the amount owed by the copartnership to its creditors in Boston was, at the time of said agreement, $1884.28. And the plaintiff says that the amount in fact due to said creditors at the time of said agreement was $1161.05, and no more, and the defendant owes the plaintiff one half of the difference between the two last named sums, to wit, $336.61, and interest.”</p> <p>Trial and verdict for the plaintiff, in the superior court, before Brigham, O. J., who allowed the following bill of exceptions: “ The parties in this action were formerly partners in business, and upon the dissolution of the firm (as was contended by the plaintiff) the defendant purchased the plaintiff’s .interest in the stock in trade for a certain sum, and agreed that if the amount of the debts in Boston should be less than an assumed amount the defendant would pay the plaintiff one half of the difference. At the trial, there was evidence tending to show that the parties undertook to ascertain the state of the business of the partnership, in relation to merchandise constituting their stock in trade, and the debts owed by and to it, and that they made a written statement of these matters, and made the contract declared on with reference to that statement. One McManus, who testified that he assisted in writing that statement, identified a paper exhibited at the trial as the statement written by him, and said paper purported to be a statement of the debts due by the partnership in Boston, and of other matters relating to the business of the partnership, but did not appear to contain, and did not contain, the whole statement of such business as the same was written in taking account of the same. The "witnesses of both parties, by the counsel of both parties, were examined as to the identity of the paper exhibited with the written statement which was made, and as to whether the parties acted upon it as the basis of such contract in taking said account, but the paper exhibited was not read to the jury or put into their hands during the trial. The judge, against the objection of the defendant, directed the paper exhibited to be given to the jury when they retired, at the request of fche plaintiff’s counsel. To tMs proceeding of the judge, and the accompanying ruling that the paper by the acts of the parties during the trial had been put into the case, the defendant’s counsel excepts.”</p>

<p>The articles of a loan and fund association, incorporated in 1854, provided that each mem. her should pay, during the existence of the corporation, monthly dues end certain fines; that, as often as the fund of the corporation should amount to a oertaii sum, it should be applied to the redemption of the share of that member who would bid the greatest sum, by way of discount, for the privilege of talcing out his distributive share at once; that the member whose share was so redeemed should cease to be a member, but should give a bond and mortgage for the payment to the corporation, its successors or assigns, of the sum advanced, in the manner following, namely, the monthly dues, “to be applied in liquidation of the principal sum,” interest monthly until the monthly dues should amount to the principal sum, and fines; but that neither the interest nor fines should be deducted in computing the amount due on the mortgage. The articles also provided that the entries in the books of the secretary should be prima fade evidence against any member, but an appeal might be taken to a meeting of the association; and that a quorum of a meeting should consist of twenty-five members; and further provided for the election, duties and removal of officers. The secretary of the association purchased and took assignments to himself of all the bonds, mortgages and assets of the association, and of all the unredeemed shares. Held, that the liability to pay monthly dues and fines then ceased, and that a member, who had redeemed his share, and given a mortgage for the sum advanced, was entitled to redeem the mortgage on payment of the amount due thereon at .the time of such assignments, with interest.</p>

Tort for the conversion of a fulling mill, napper and shear. Writ dated February 13, 1869.

<p>An informer cannot sue a collector of internal revenue in the courts of this Commonwealth, under the U. S. Sts. of 1862, c. 119, § 31, or 1864, c. 173, § 41, for a share of a penalty paid to the collector, unless such penalty has been recovered by judgment of a United States court.</p>

Contract brought in the name of St. Johns for the benefit of Asa D. Taft.

<p>One who hired a room to use as a public billiard room applied to the selectmen for ■ license; which they refused, but told him that they should make no objection to such use so long as he should not allow gambling or liquor selling. Held, that this did not amount to a license; that the use of the room was illegal under the Gen. Sts. c. 88, § 70; and that no action could be maintained against him by the lessor for the fitting up or rent of it.</p>

Petition for partition of land in Royalston. The case was submitted to the court on facts agreed, the material parts of which are stated in the opinion; the petitioner to have judgment if Christopher C. Alger could properly be treated as a tenant in common of the land in her levy of an execution thereon ; otherwise, judgment to be for the respondent.

<p>A. bought goods on B.'s order; sent a bill of parcels of them to B., describing himself as a produce commission merchant, stating that they were bought on B.’s account, and charging a commission; annexed a bill of lading of them, made to his own order and indorsed in blank, to a draft on B. for their price; and sent the draft through a bank for presentment to B. B. accepted the draft, and the bill of lading was given up to him. Heldt that the relation between B. and A. was that of principal and agent, not of buyer and seller; that the general property in the goods vested in B. on their purchase; and that a delivery of them to a third person by A., although before the acceptance of the draft by B., passed no title.</p> <p>A factor, who had bought goods for his principal residing at W., sent them by mistake to a third person residing at S., who received them in good faith and paid the freight. Keldy that in estimating damages in an action by the principal against this person for the conversion of the goods, the defendant was entitled to a deduction of the amount of the freight paid by him.</p>

<p>Replevin oí thirty tierces of lard., Writ dated February 23, 1869. Trial in the superior court, before Devens, J., who reported the following case for the determination of this court:</p> <p>On or about February 1, 1869, the plaintiffs, who were merchants in Chicago, doing business under the name of T. H. Seymour & Company, received a letter from Francis W. Fish, a dealer doing business in Worcester under the style of F. W. Fish & Company, requesting them to forward to him thirty tierces of lard, and draw on him at three days’ sight for the price. The plaintiffs thereupon bought this lard, paid for it, and sent to Fish the following account, signed by them and dated February 5, 1869:</p> <p>“ Account purchase of 30 tierces lard by T. H. Seymour & Company, Chicago, for account and risk of Messrs. F. W. Fish & Company, Worcester, Massachusetts.</p> <p>“ February 4, of Buckworth 30 tierces lard 9780 lbs. @ 20} . $2027.35</p> <p>Charges. Inspection*...... . t</p> <p>Exchange......</p> <p>Stamp on time draft ..... 1.05</p> <p>Interest .......</p> <p>Commission ...... 30.44</p> <p>46.88</p> <p>“ Amount charged in account $2074.23</p> <p>By our three days’ sight draft . . . • , $2074.23</p> <p>The plaintiffs also drew on F. W. Fish & Company, as requested ; and the draft was made payable to Isaac G. Lombard, cashier of the Fifth National Bank of Chicago, and delivered to him, together with the railroad receipt, which described the lard as “ Received from T. H. Seymour & Company; consigned to account I. G. Lombard, cashier, care of F. W. Fish & Company, Worcester, Massachusetts; to be transported over the line and lelivered in like good order to the consignee or owner at Worcester.” Lombard sent the draft for acceptance and collection, together with the railroad receipt, to the City National Bank at Worcester, and on February 9 the draft was presented to Fish, the receipt not being then attached to it, and accepted. The lard was shipped on February 5. On February 15 Fish stopped busi ness; the draft was protested for nonpayment; one Paine, the cashier of the City National Bank, acting for Lombard, requested the freight agent of the railroad not to deliver the lard to Fish, and to notify him of its arrival; and the agent did so notify Paine. The plaintiffs, on hearing of Fish’s failure, requested the freight agent of the railroad at Chicago to stop the goods in transitu, and made efforts so to stop them by causing telegrams to be sent to various points on the route and to Worcester. Fish was in solvent, and afterwards became bankrupt.</p> <p>On February 18 the lard arrived in Worcester; the car contain ing it was put. in the freight depot; and while there the lard was attached on the same day by Lombard in a suit on the draft against Fish, and subsequently by other creditors of Fish; the defendant, who was a deputy sheriff, made the attachments and appointed the freight agent of the railroad at Worcester keeper; and the lard was stored in the freight depot until replevied in this suit.</p> <p>Fish’s place of business was about one fourth of a mile from the freight depot. He was accustomed to receive his freight at the depot, and freight of this kind directly from the car.</p> <p>After the protest of the note, but before bringing this suit, the plaintiffs, who had been credited by the Fifth National Bank with the amount of the draft,, less interest and exchange, paid the amount of the draft to that bank, but the draft remained in Paine’s hands.</p> <p>If on these facts the plaintiffs could maintain this action, then hey were to have judgment for nominal damages and costs; if rot, then the defendant to have judgment for a return and costs.</p>

<p>Two actions op contract; the first by Hapgood against Frank Shaw and George Warren, to recover back $100 paid for guns which never were delivered; the second by Shaw and Warren against Hapgood, to recover for his refusal to accept and,pay for the guns. The actions were tried together in the superior court, before Devens, J.</p> <p>It appeared at the trial, that Hapgood, who was a dealer in guns in Boston, ordered guns from Joseph Child, a manufacturer *n England, through Shaw and Warren, who were shipping merjants doing business in Boston and Liverpool under the name of Warren & Company; that Child sent the guns ordered, and also others not ordered, to Warren & Company, who paid for them and shipped them to America without authority; that Warren & Company signed and delivered to Hapgood, on the day of its date, the following agreement: “ Boston, March 30, 1864. Received of Joab Hapgood $100 on account of guns shipped by us per invoice about £90 sterling from Joseph Child, and now in bonded warehouse in New York, which guns we promise to deliver to said Hapgood on the first day of J une next, or at such time as he shall order previous to that date, upon payment of balance of invoice with freight, charges and interest to date of remittance due in England; ” that the guns mentioned in this agreement were the guns above mentioned as shipped by Warren & Company; that Hapgood, at the time of the execution of this agreement, paid the $100, and agreed orally to receive the guns on or before June 1,1864; that the guns were shipped and placed in the warehouse in the name of Warren & Company; “that from the date of the agreement until June 6, 1864, Warren & Company never delivered or offered to deliver the guns to Hapgood, or made to him any statement or demand of the amount of the sums to be by him paid for them; that Hapgood never requested any such statement, or paid or offered to pay the said amount; that on June 6, 1864, Warren & Company requested Hapgood to take and pay for the guns, which he refused to do; and that the guns remained in the bonded warehouse in New York from October 1863, when they arrived from Liverpool, until July 1864, when they were sent back to Liverpool and sold by Warren & Company.”</p> <p>Shaw testified “ that the items of charges upon the guns could not be ascertained until the goods were removed from the bonded warehouse; that if Hapgood had received the guns in the fall of 1863, after they were placed in the warehouse, he would have paid to Warren & Company the freight and invoice, and received an order authorizing the guns to be taken from the bonded warehouse, and would have sent there for them and then paid the warehouse charges.”</p> <p>By consent of the parties the judge withdrew the cases from the jury and reported them for the determination of this court; the parties agreeing “ that if the court should be of opinion that the first case could be maintained on the foregoing evidence, so far as competent, judgment should be entered for the amount claimed in the declaration, with interest from the date of the writ, otherwise for the defendant; if the court should be of opinion that the second case could be maintained for substantial damages, the case should be sent to an assessor to determine the amount of damages, otherwise judgment be entered for the plaintiff for nominal damages, or for the defendant, if the action cannot be main tained at all.”</p>

<p>Contract on a bond executed by the defendant to the plaintiff, under date of November 27,1868, in the penal sum of $1500, the condition of the obligation being 16 that whereas the obligor has this day agreed to pay to the obligee the sum of $7000 on or before April 1, 1869, and on the conveyance to him, the said obligor, or his legal representatives or assigns, by said obligee and her husband, of her certain farm of land in West Sutton known as the Spurr farm, being the land conveyed to said obligee by the administrator of the estate of John Spurr, such conveyance to be made by warranty deed, in fee simple, on April 1, 1869, and on payment of said sum; now should the obligor, his legal representatives or assigns, pay said sum of $7000 on or before said April 1, 1869, and on the execution of such deed, then this bond shall be void,” &c. Writ dated April 2, 1869.</p> <p>The declaration alleged that the plaintiff had always been ready and willing to perform her part of the contract which was the subject of the bond, but that the defendant refused to accept the deed of the land and pay the purchase money, whereby the condition of the bond was broken.</p> <p>The answer denied that the plaintiff on April 1, 1869, or at any time before action brought, either offered with her husband to give the defendant a warranty deed of the farm in fee simple, or was ready or able to execute such a deed to him, inasmuch as the farm was incumbered with a mortgage to the amount of more , than $1500, and the plaintiff could give no clear title; and set up that, as a part of the contract, in connection with the bond in suit, another bond of like date and in like penal sum was executed by the plaintiff and her husband to the defendant, the condition thereof being “ that whereas the obligors have this day agreed to execute a good warranty deed, in fee simple, conveying to said Holcomb, and his heirs and assigns, a farm in West Sutton, now occupied by the obligors as their home, being all the land conveyed to said Mary S. Carpenter by the administrator of the estate of John Spurr, and known as the Spurr farm, in consideration of $7000 to be paid by said Holcomb, his legal representatives or assigns, on or before April 1,1869, interest to be allowed on all sums paid before that date from the time of payment to said April 1, 1869; now should said obligors execute such deed, and make a full and perfect conveyance of said premises, free of all incumbrances, to said Holcomb or his assigns on April 1,1869, and on the full payment to them, the said obligors, of said sum of $7000, then this bond shall be void,” &c.</p> <p>Trial in the superior court, before Devens, J., who made a report thereof, referring to the pleadings, and continuing as follows :</p> <p>“ The plaintiff proved the execution and delivery of the bond declared on, and the execution and delivery of the other bond by the plaintiff and her husband to the defendant, made at the same time and as a part of the same transaction. The contract as to the sale of the farm was made at West Sutton, but- the bonds ware executed, so far as the defendant is concerned, at Hartford, Connecticut. At the time of the execution of the bonds, there was a mortgage held by John Stoddard on the place for -$1500, which remained unpaid and undischarged at the time of the commencement of the action. The defendant knew of this mortgage when he executed the bond declared on.</p> <p>“ The plaintiff called as a witness Adams Carpenter, her hus-. band, who testified that he saw the defendant on April 1, 1869, at his house in Sutton, between six and seven o’clock in the evening. Nothing was said as to the deed that night. The defendant said, ‘ In the morning, do the business.’ Next morning the defendant said he had not got money enough to take the farm ; would pay $5000, and wanted to give a note for the rest on sixty or ninety days. I told him I wanted to take up the mortgage, so as to give a clear deed. He asked if I thought the mortgage could lie. I said, ‘I don’t know; Stoddard wants the money.’ I went to the bam to consult with my boy whether to accept his terms. The defendant came out and said, 6 Let us shift the bonds.’ I said, 6 Are not you going to take the farm ? ’ He said ‘ No.’ My wife said, 6 What way is that to make a trade ? You would exact the bond of me if I did not stick.’ The defendant said, ‘ I shall not take the farm ; we will shift the bonds, and 1 will give you in what I have paid,’ which was $100. I told him we would not. He then went away. The next time I saw him was the same day at two o’clock in the afternoon at the railroad station at Worcester. Meanwhile, I had been to Worcester and obtained the writ in this action, and delivered the same to the officer. The officer with the writ was present at the station when 1 saw the defendant. I then said to the defendant, ‘ I want you to take the farm.’ He said he would not. Thereupon service of the writ was made.</p> <p>“ In cross-examination, he testified: The farm stood in my wife’s name, and I was acting as her agent. There was no deed made on April 1, 1869, to convey the farm to the defendant, nor any deed prepared either on the morning of April 2, while the defendant was at the house, or at the interview with the defendant in the afternoon, at the railroad station. We had not paid or discharged the mortgage, or procured any release from the mortgagee; and the mortgagee was not present on either occasion. No deed was ever tendered to the defendant, and none was ever made.</p> <p>“ The plaintiff testified as follows: The morning of April 2, at our house, the defendant said he had not money enough to pay for the farm; that perhaps they would let the old mortgage lie. Mr. Carpenter said, ‘ I don’t know about it.’ Mr. Carpenter and his son went out. Soon afterwards the defendant went out. I heard him say, ‘ Let us change bonds.’ I said,6 You would exact the bond of me if I did not stick.’ Mr. Carpenter said, ‘ Are not you going to take the farm ? ’ I said, ‘ As soon as your money is ready we will make the deed.’ He said he would not take the farm.</p> <p>“ Upon the foregoing evidence, the defendant asked the judge to rule that the action could not be maintained. The judge declined so to rule, and directed a pro formá verdict for the plaintiff ; and the case is reported for the determination of the supreme judicial court. If the court should be of the opinion that the action can be maintained on the foregoing evidence, the verdict is to stand; otherwise, a new trial to be ordered.”</p>

<p>On the trial of an issue between two towns of the settlement of an infant pauper, it is incompetent for the mother to testify that the infant, though bom in wedlock, is illegitimate.</p> <p>In an action by one town to recover from another the expense of supporting as a pauper a married woman alleged to have her settlement with the defendants, it is competent for them to prove that her husband has a settlement in the Commonwealth elsewhere than with them, derived from his mother, without first proving that he derived no settlement from his father.</p> <p>The St. of 1870, c. 392, § 2, declaring settlements acquired by laws in force before February 11, 1794, to be lost, does not affect an action brought by one town against another, before its passage, to recover the expenses of supporting a pauper alleged to have a settlement with the defendants.</p>

Conteact to recover money paid by the plaintiffs for the support of Davis Dunham as a pauper in their almshouse from April 24, 1868, to April 24, 1869.

<p>The same person was chosen treasurer of a town five consecutive years. In the first four he served without a bond; and in the fifth he gave a bond conditioned that whereas he had been chosen to the office for that year, if he should well and faithfully perform all the duties of his said office the bond should be void. Seldt that the sureties were not liable for his appropriation to his own use, during the first year, of money of the town with which he falsely credited himself in his account of that year as having been officially disbursed by him, and never entered on his subsequent accounts.</p>

<p>Contract, against a mutual fire insurance company upon a policy of insurance, dated May 22, 1866, reciting that the plaintiff, a member of the company, had paid the sum of six dollars as premium and given his promissory note of the same date for the same amount as deposit, and also bound and obliged himself to pay all such further sums, not exceeding in any event the amount of the premium and deposit, as might be assessed by the president and directors of the company pursuant tb the laws of the Commonwealth ; and, in consideration of the premises, insuring him for five years against loss or damage by fire, “ under the conditions and limitations hereinafter expressed,” to the amount of four hundred dollars “ on his one story frame dwelling-house, occupied by tenants, situate on the south side of Main Street, Mattapoisett, Mass.: ” “ The amount insured being not more than three fourths of the value of the property, as stated by the-applicant. Provided always that in case the said insured shall have already any other insurance against loss by fire on the property hereby insured, and not indorsed upon this policy, then this insurance shall be void and of no effect. And if the said insured, or his assigns, shall hereafter make any other insurance on the property hereby insured, and shall not obtain the consent of .this company thereto, and have such consent indorsed upon this policy, then this insurance shall be void and of no effect. And in case of any other contract of insurance upon the property hereby in sured, whether prior or subsequent to the date of this policy, and whether such contract be valid or not as against the parties thereto, or either of them, this company shall not be held to pay any greater portion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount insured on said property, as herein stated; such amount, in all, not to exceed three fourths of the actual value of said property at the time of loss. And it is further agreed that whenever a building hereby insured shall be altered, enlarged, or appropriated to any other purposes than those herein mentioned, or the risk otherwise increased by the act, or with the knowledge or consent of the insured, the consent of the directors not being first obtained and signified by the secretary in writing, then this policy shall be void. But the directors may, upon application of the insured, revive the policy ; but if not revived, the insured shall be entitled to receive the dividend due to this policy as if surréndered as above.”</p> <p>At the trial in the superior court, before Rockwell, J., the defendants offered in evidence the application, signed by the plaintiff, upon which the policy was based, (but not otherwise referred to therein,) stating the value of the property insured to be eight hundred dollars, containing questions and answers as to the description and circumstances of and relating to the same, and the last paragraph of which was as follows:</p> <p>“ The said applicant hereby covenants and agrees with the said company, that the description of the property to be insured, and of all circumstances in relation thereto, material to the risk, is full and true: and that the estimated valuation shall not be conclusive upon the company, but in case of loss the true value at the time of loss may be inquired into and ascertained-j and that said applicant shall be bound by the articles inserted -in the policy,-and the laws of the Commonwealth of Massachusetts in relation to insurance. And in consideration of the policy that may be issued hereon, promises to pay said company, (or its treasurer for the time being,) on demand, such sum or sums of money, not exceeding the cash premium paid hereon, and in addition thereto, as the directors may from time to time order or assess.” H Eh (I"</p> <p>The defendants also offered evidence tending to show that at the time of the loss (which was total) in September 1868 the property was of much less value than the amount insured in the policy. But the judge excluded the application and this evidence.</p> <p>There was evidence tending to show that the house insured was upon the Main Street in Mattapoisett, was very old, and had capacity for five tenants; that when the insurance was effected it was occupied by two tenants ; and that no notice was ever given to the company or its agents that it was not still so occupied; that the last tenant moved out of it before January 24,1867; (though the plaintiff testified that it was in the spring of 1868;) that soon after the tenants moved out the plaintiff reset the broken glass and boarded up the windows, and the house so remained entirely vacant and unoccupied till the time of the fire; that upon one side of it was a dwelling-house, usually occupied, but vacated a few days before the fire; and upon the other side two stores and a bakery, all of which were at the time of the loss and had been for several years entirely unoccupied.</p> <p>“ The defendants offered to prove by the agent of said insurance company, through whom said insurance was effected, that it was the custom of said company to charge extra premiums upon such unoccupied dwelling-houses.</p> <p>“ The defendants also offered to prove, by the testimony of insurance agents and of men accustomed to effect insurance, that it was the custom of insurance companies generally to charge extra premiums upon dwelling-houses intended or known to be unoccupied.</p> <p>“ The defendants also offered to prove, by the testimony of insurance agents and of men accustomed to effect insurance, as experts in that business, that leaving a dwelling-house unoccupied for a considerable length of time was an increase of risk.</p> <p>“ All which evidence was ruled inadmissible and rejected by the judge. The jury returned a verdict for the plaintiff,” and the defendants alleged exceptions.</p>

<p>Petition to the comity commissioners for the assessment by a jury of damages occasioned to the firm of A. S. Reed & Company, composed of Amos S. Reed and Amos N. Reed, by the taking of their real estate in Abington for the construction of the respondents’ railroad.</p> <p>At the hearing by the jury, in Abington, October 26, 1869, the presiding officer overruled objections made by the respondents to the proceedings; and certified his rulings to the superior court, together with the verdict, which was for the petitioners in the sum of $900 with interest from June 1, 1866, the date when the real estate was taken. The superior court accepted the verdict, and ordered judgment thereon; and the respondents appealed. The case is stated in the opinion.</p>

<p>After verdict in an action of replevin, it is too late to move to dismiss the action for insufficiency of the replevin bond.</p> <p>A usage of a seaport is valid, for the general agents of whaling vessels, sailing therefrom on shares, to take possession of the supplies on board at the end of the return voyage, and have them appraised and distributed among the owners if they can agree on a distribution in kind, or, it' they disagree, then to sell the supplies by auction and distribute the proceeds in settling the voyage.</p> <p>The general agent of a whaling vessel at a port where it is the usage for such agents to take possession of supplies remaining on board at the end of the voyage, and distribute or sell them in settling the voyage, may, after demand and refusal, maintain an action of replevin against the master for such supplies, although both parties, with others, are mint owners of the supplies and the vessel.</p>

<p>V a defect in a highway which a town is bound to keep in repair causes the horse to fall, and the carriage to break, with which a person is travelling thereon with due care, and while the horse is struggling to ríse, and every reasonable effort is being made to control it, the traveller, in the exercise of ordinary care, and to avoid apparently imminent danger from the position into which he has been brought by the defect in the way, leaps from the carriage, and is injured in doing so, the town is liable for the injury, in an action on the Gen. Sts. c. 44, § 22.</p>

<p>Tort on the Gen. Sts. e. 44, § 22, for personal injuries sustained by the female plaintiff while travelling on the sidewalk of a highway in Provincetown. Trial and verdict for the plaintiffs, in the superior court, before Dewey, J., who allowed a bill of exceptions of which the following were all the parts relating to the questions which were argued in this court:</p> <p>“ Mrs. Ghenn testified that on the evening of May 14, 1869, as she was going from her shop to her home over the way, in passing over a plank sidewalk she stepped into a hole between the planks, turned her ankle, and received the injury complained of, and that the place was in front of Widow Eldridge Nicker-son’s estate.</p> <p>“ Mr. Ghenn, subsequently called, testified to having seen a hole in the sidewalk in front of said Nickerson estate two weeks before the time of the accident. He then, in answer to a question by the plaintiffs’ counsel, (against the objection of the defendants,) testified that he had seen other holes in the plank walk, in the vicinity of the one first testified of, but in front of the estate of John Nickerson.</p> <p>“ The judge ruled that the evidence of the existence of other defects in the sidewalk, except the one which caused the accident, was not admissible to show a liability on the part of the defendants ; but that, in determining the position of the hole which caused the injury, the jury were not limited to the evidence as to the one testified of by the female plaintiff.</p> <p>“ There was evidence on the part of the defendants, tending to show that the sidewalk was composed of two and a half inch plank, lying lengthways, and firmly bedded in the soil, or resting on it; that the defect complained of was caused by the decay of the edges of two of the planks that were laid within about half an inch of each other ; that the space between the extreme edges of the decayed portions of said plank was one inch and one half, including the space between the planks, and no more; that the decay had extended downwards one inch, and no more, and lengthways about three feet; and that the space for about eight inches in length was one and a half inches wide and one inch deep, and gradually narrowed to the end.</p> <p>“ The defendants requested the judge • to instruct the jury, that, if upon the whole evidence they were satisfied that the defect complained of was of the kind and dimensions before named, the town would not be liable therefor and the sidewalk would not be dangerous within the meaning of the law. The testimony on the part of the plaintiffs as to the size of the hole was conflicting with that introduced by the defendants. The judge declined io to instruct, but instructed them that it was a question for the jury whether there was a hole in the sidewalk, and whether from its "size and location it was a defect; that if the evidence satisfied them that there was no hole there of sufficient size to be the cause of the accident or injury to the female plaintiff, then the plaintiffs had failed to prove any defect; but if the jury were satisfied that the accident happened to the plaintiff on account of a defect in the walk, then without regard to its size the defendants would be liable for the injury to the plaintiff if such defect had existed twenty-four hours or more before the accident, and the plaintiff was herself in the exercise of due care at the time. To which rulings the defendants except.”</p>

Tout for breaking and entering the plaintiff’s close in Barn-stable. Writ dated July 24, 1869. The defendant justified under a claim of a right of way across the close, gained by adverse use, and appurtenant to land which she was occupying at the time of the alleged trespass.

<p>Contract against Samuel Dyer and Ebenezer Freeman. The declaration alleged “ that the defendants set the plaintiff to work to make a road in the town of Truro, which they pretended to him had been ordered to be made by said town after due proceedings and laying out of the county commissioners of the county of Barnstable; and the plaintiff proceeded according to the order and directions of the defendants to work and make a road where they directed and pointed out to him to work and make the same, according to their order ; and in fact the said county commissioners had not ordered a road to be made by said town at the place pointed out to the plaintiff by the defendants, and the work done by the plaintiff in making said road was not done upon any location where any road had been laid out by any legal proceedings; so that the plaintiff cannot claim payment for his work and labor of said town; but the defendants owe the plaintiff five hundred and eighty-four dollars and twenty-five cents for work and labor done as aforesaid, and for liabilities incurred by reason of the request, order and direction of the defendants as aforesaid,” all as set forth in an account annexed.</p> <p>Freeman’s answer was a general denial. Dyer, in his answer, alleged “ that if the plaintiff did any work by his directions, except such as he was authorized to give as an agent of the town of Truro, with the knowledge of the plaintiff that he was such agent, then that the plaintiff failed to execute and complete said work, and so is entitled to recover nothing therefor; that if the plaintiff worked a.road not duly laid out by the county commissioners, he did so without direction from this defendant, and of his own motion and through his own negligence and mistake; and that it was the duty of the plaintiff to know where to build the road according to the contract made by him with the authorities of the county of Barnstable, or of the town of Truro.”</p> <p>At the trial in the superior court, before Putnam, J., there was evidence of these facts: The county commissioners of Barnstable ordered the building of a highway in Truro on the petition of Ephraim Rich and others, and gave due notice thereof to the town, and at a lawful town meeting on November 5, 1867, the defendants, together with John Kenny, who had since died, were chosen a committee by the following votes :</p> <p>“ Voted, that the town build the road laid out by the county commissioners on the petition of Ephraim Rich and others as per report and order of said commissioners dated August 20, 1867.</p> <p>“ Voted, to choose a committee of three to carry into effect the working of said road in accordance with the aforesaid order of said commissioners, and Samuel Dyer, Ebenezer Freeman and John Kenny were elécted as said committee.</p> <p>“ Voted, that the committee be instructed to divide said road into sections, and advertise for proposals to build the road, or sell the same by sections at public auction.</p> <p>“ Voted, that, when the said road is completed to the acceptance of the committee and the county commissioners, the selectmen be authorized to draw orders on the town treasurer in payment for the building of the same.”</p> <p>“ The plaintiff bid off at public sale, in the autumn of 1866, the right to make section No. 8 of this road, but there was no written contract between him and the town, or the committee, to do the work.</p> <p>“ The plaintiff and his witnesses testified, that in April 1867, on the day when he was about to begin work on this section, he sent for the defendants, and asked them where the road was to be built; that Dyer, in the presence and hearing of Freeman and Kenny, and in reply to an inquiry as to where the road was located, told the plaintiff that the road was to be built in a straight line from the ‘ dyke,’ so called, near where they were then standing, over the hill to a point beyond the hill, which he pointed out; that the plaintiff asked if he ought not to have the records, but Dyer replied, ‘We are the records ; there is the road; there is where it was laid out; if you want any information, we will give it to you; ’ that ‘ that was the road he (the plaintiff) bought,’ and ‘ that was the road he had got to work; ’ and that thereupon, immediately, the plaintiff went to work with his men on the location thus ordered to be built.</p> <p>“ On another occasion the plaintiff asked them if they were sure the road was in a straight line; to which Dyer replied that it was, and that ‘ there was where the county commissioners laid it out, and there was where he had got to work it,’ and ordered him to finish it according to the specification, on that line.</p> <p>“ The defendants denied any such conversations, and testified that they were not called on by the plaintiff, and gave no such directions and made no such statements as he and his witnesses had testified to, but that they had gone over the true location with the plaintiff before the sale, and had pointed out the location made by the county commissioners, stake by stake, that he knew about where it was, and that when called upon for the records they furnished them. This statement the plaintiff denied.</p> <p>“ The location which the plaintiff alleged that the defendants had then pointed out to him was not in fact the true location, but the true location was by another and curved line between the same points, and about fifty feet distant from the straight line at the widest point of difference.</p> <p>“ After working in this straight line about thirty days, the county commissioners came on the ground and informed the plaintiff that he was not on the true location, whereupon he left it, without completing the straight road according to the specifications, informing the defendants that he should look to them for his pay for labor and services upon it, and went to work upon the true location, finished it to the acceptance of the county commissioners and the defendants, and received his pay from the town, and now brings this action against the defendants to recover for his labor and expenses upon the straight line.</p> <p>“ Upon this state of the evidence, the defendants’ counsel asked the judge to instruct the jury as follows:</p> <p>“1. That the only authority the defendants had, under a vote of the town appointing them, was to sell the making of the road under the terms named in the votes, and oversee the plaintiff’s work and see that it was of the character called for by the order of the county commissioners.</p> <p>“ 2. That, upon the facts in this case, Dyer and Freeman were under no legal obligation to point out to the plaintiff the limits of the section of road which the plaintiff had contracted to build; and if, at the request of the plaintiff, they attempted to do so, and, acting in good faith, misled the plaintiff, they are not liable to him in this action for labor done by him outside the true limits of his section.</p> <p>“ 3. That if the defendants, or either of them, would be liable to the plaintiff for work on a line which they had by mistake pointed out to him, still the plaintiff could not recover of them, or either of them, unless the work done by him under the mis.ake was done in accordance with instructions from the person or persons employing him.</p> <p>“ This the judge declined to do; but instructed the jury, that, although the defendants might not be under any legal obligation to point out to the plaintiff the location upon which he was to work, yet, if at the call of the plaintiff they went upon the spot, and pointed out to him where the county commissioners had located the way, assuming the authority so to do, and ordered him to work Upon that portion and no other, as testified to by the plaintiff and his witnesses, when in fact that location was not the one laid out by the county commissioners, and the plaintiff worked upon it in good faith, believing, from what they told him, that such was the proper location and that the defendants had authority to point it out to him, then he could recover of the defendants personally in this action for his labor and expenses in so working it; but if the defendants did not point out the location, and order the plaintiff to work upon it, as he testified they did, or if the plaintiff knew, or had reason to know, that the place pointed out by the defendants was not the true location, then the plaintiff worked it at his own responsibility and risk, and the defendants would not be liable.” The verdict was for the plaintiff, and the defendants alleged exceptions.</p>

<p>Libel for a divorce from bed and board for the cause of desertion. The case was heard by Wells, J., and reported to the full court as follows:</p> <p>“ The parties were married at Boston October 20, 1864, and lived together as husband and wife at Weymouth until August 25, 1869, when the libellee deserted the libellant, and left the state, and is now in parts unknown. The libellant had been previous^ married, and his former wife is still living. Before his marriage to the libellee, his former wife had obtained a decree against him, in the county of Norfolk, of divorce from the bond of matrimony, for the cause of desertion. He contracted the present marriage in the belief that the dissolution of the former marriage left him free and with a legal right to marry again. Subsequently learning that such was not the case, and that the validity of the marriage was questionable, he and the libellee joined in a petition to the legislature for the passage of an act to legalize or confirm said marriage, and thereupon the St. of 1869, c. 377, was passed. There is one child of this marriage, bom before the passage of said statute and now in the custody of the libellee.</p> <p>“ If the marriage of the parties is valid, or made valid by the act of the legislature, so as to entitle the libellant to maintain this proceeding, a decree of divorce from bed and board is to be entered; otherwise, the libel to be dismissed.”</p>

<p>A deed conveying part of a tract of land as bounded “by a passageway of fifteen feet wide” leading across the tract, with no restrictive or controlling words, passes the fee to the centre of the way so assumed as a monument, although no such way existed at the date of the deed or has ever been fenced off, and although the deed further provides that “ said passageway is to be held in common by the parties to this instrument and their heirs forever.”</p> <p>In consideration of a loan of four thousand dollars in paper money, the holder of a tract of land gave a first mortgage of it in May 1862 to secure payment of “four thousand dollars in gold coin, or its equivalent value in current money, in three years,” 'with interest “payable in the same funds semi-annually in advance;” and afterwards gave .other mortgages of it for subsequent loans. In 1867, (after breach of the condition of the first mortgage,) another person recovered judgment in a writ of entry against the mortgagor for the land, and nothing for rents and profits; elected to take execution for possession upon paying into court for the tenant four thousand and twenty-five dollars as the value of his improvements; and made the payment, and took the execution, which was returned unsatisfied as to costs. The first mortgagee, before the payment, filed a bill in equity for a foreclosure of his mortgage and for the application to his mortgage debt of the money so to be paid. The said demandant, after the return of his execution, also filed a bill in equity, seeking to be allowed out of said money his costs in the writ of entry and the amount of rents and profits to which he might be found entitled. Beld, (1) that the money in court was to be applied to satisfy the mortgages, according to their priority; (2) that thp judgment in the writ of entry allowing nothing for rents and profits could not be impeached in these suits; (3) that as against the mortgagees the demandant had no equity to be paid his costs in the writ of entry out of the money in court; (4) that the debt secured by the first mortgage was not usurious, in the absence of any evidence of unlawful intent; (5) that, whether the money was received by the clerk of the court in coin or in treasury notes, it was payable dollar for dollar upon the first mortgage debt; but (6) that any balance of said debt, after such payment, was payable in gold coin.</p>

<p>Tort on the Gen. Sts. e. 70, § 20,* for bringing Betsey Scott into the town of Franklin. Trial in the superior court, before Reed, J., who directed a verdict for the defendant and reported the case which is stated in the opinion.</p>

<p>Writ of entry to recover land in Medfield, of which Asa Boyden died seised in 1803, and by his will disposed as follows :</p> <p>“ I give and devise to my son, Amos Boyden, the improvement of that lot of land his house stands upon. I give and devise to my grandson, Asa Boyden, his heirs and assigns, all the real estate that I gave the improvement of to his father, Amos Boyden, his natural life. Provided he should not outlive his father, Amos Boyden, then I give and devise to his three brothers, and iny three grandchildren, namely, Theodore Boyden, Walter Boyden, and Preston Boyden, of what I gave him, the said Asa, and then to be equally divided between them three brothers; and in case the said Asa should outlive his father, Amos Boyden, and come into possession of the estate, it is my will that he shall pay his brother Theodore seventy dollars, and his brother Walter seventy dollars, and his brother Preston seventy dollars, in one year after he comes into the possession of It. And then not until they arrive at lawful age to receive it. And it is my will, in case either of them should not live until it becomes due, and then it is my will that their part shall remain to him the said Asa Boyden.”</p> <p>Amos Boyden died in 1843. Asa Boyden, Jr., son of said Amos, and grandson of the testator, died in 1812. The female demandant was his only child, and was born in 1810, and married the male demandant in 1835, and claims title under said will, as heir of her father. The tenant holds the premises under deeds from Theodore Boyden, Walter Boyden, and Preston Boy-den, brothers of Asa Boyden, Jr., and grandsons of the testator, all of whom survived Asa Jr., and became of age.</p> <p>The case above stated was submitted to the superior court, which gave judgment for the demandants, and the tenant appealed.</p>

Contract on an account annexed for $25; submitted to the judgment of the court, and argued in writing, on agreed facts of which the following is the material part. This suit was brought while a trustee process was pending against Bickford, in which Rich was summoned as his trustee. In that action judgment was rendered against Bickford, and Rich as his trustee; and as such trustee Rich paid $25 on the execution. “ The plaintiff’s declaration is admitted to be true.

Contract on a recognizance under the Gen. Sts. o. 124, § 10; submitted to the judgment of the court on facts agreed, upon which the issue was raised, whether Coffey, the judgment debtor, was lawfully admitted to take the oath for the relief of poor debtors, by a trial justice, the only designation of whose official capacity, in his notice to the creditor of the time and place appointed for the debtor’s examination, was by the addition of “ justice of the peace ” to his…

Tort for the killing of the plaintiffs’ horse and injury of their wagon by a train of the defendants on a highway crossing, of their railroad track in Dorchester, through their alleged negligence.

<p>Petitions to enforce mechanics’ liens for work done in building houses on two lots of land in Brookline; tried together in the superior court, before Reed, J., who allowed a bill of exceptions of which the following are the material parts :</p> <p>“The cases were defaulted on the second day of the term, when reached in their order, and damages assessed by the court the same day. On the next day the respondents moved to have the defaults taken off, and to restore the cases to the trial list, offering to submit to such terms as the court might order. The court refused the motions, but opened the cases for the reassessment of damages merely, stating to the parties at the time that no question as to the validity of the liens would be opened, ’-ut the amounts due would be only considered.</p> <p>“ The certificates of the petitioners, filed with the town clerk of Brookline, were put in evidence by them. All of them claimed for work done on each of the houses before and after April 29,1869, except James E. Poole, who claimed for work done on Mary A. Tompson’s house only, both before and after that date. It appeared in evidence that the petitioners were employed by and performed the labor for Thomas C. Carson, who had contracted orally with the respondents, through Samuel Tompson, their agent, to do the carpenter’s work on the houses. The houses stand near each other, and were carried forward at the same time. The petitioners, except Poole, who claimed for work done only on one house, worked part of the time on one and part of the time on the other, as the work required. They sometimes went from one house to the other on the same day, doing part of a day’s work on each. Carson, the contractor, was paid from time to time by the respondents.</p> <p>“ The petitioner Moore, who claimed on the house of Mary A. Tompson $64, and on the house of Sarah M. Tompson $79.50, presented his book, in which he charged his labor each day. By the book it appeared, and he testified, that, though he charged labor to each of said houses, yet he charged only full days to each house, and kept no account in it of division of days ; that, if he commenced the day on one house, he charged the day to that house, though it often happened that he worked on both houses during the day; that sometimes, once in two or three days, he adjusted the time worked on each house as well as he could, and as he thought was right, charging more or less to one or the other house; that, when he came to make up his certificates to enforce his lien, he made up his account with each house according to his book account, his best judgment and recollection; and that he could not say it was perfectly correct, but thought and believed it about right. John E. Cox, another petitioner, testified that he kept a book of time, but rarely worked on both houses the same day, (though he did sometimes,) and kept no account of division of days; that if he did so he made it right as near as he could, at the end of two or three days or a week. All the other petitioners, claiming liens on both houses, kept accounts of the days’ work done for Carson on both houses, but no account of the amount of work done on the separate houses. They testified that, when they came to make up their certificates of liens, they divided the gross amount due them for labor between the two houses, according to the best of their judgment and recollection, but neither could swear that his account with either house was perfectly correct, though they thought them about right. One of them testified that he was assisted by Carson, aided by Carson’s book, in which he (Carson) kept an account of the labor performed on each house; though no such book was produced, and Carson testified that he had destroyed it. No other testimany was offered to show how much labor the several petitioners performed on each house.</p> <p>The respondents contended, and offered evidence tending to prove, that on April 26, 1869, Carson notified their agent that he had abandoned the jobs, and should not finish the houses, that his v orkmen held possession of them, and that the defendants could have the keys and possession of the houses when the workmen were paid the amount due them for labor; that, immediately upon receiving this notice, the agent went to one of the houses, in which all the petitioners except Cox and Poole were then at work, (Carson going with him,) and told them, in Carson’s hearing, to quit work, and not strike another blow, that the respondents would not be responsible for their labor, and to take their tools and leave the premises and do no more work on either house. One witness who was present testified that the agent told the petitioners that Carson had abandoned the job. It was not; contended that written notice was ever given to either of the petitioners that the respondents would not be responsible for their labor.</p> <p>“ The petitioners offered evidence tending to prove that on April 29, and not on April 26, as claimed by the respondents, the agent of the respondents came into one of the houses where the petitioners, except Cox and Poole, were at work, and told them that the respondents would not be responsible for their labor; but the witnesses who were the petitioners denied that he told them to leave the premises, or stop -fc-ork, or that Carson had abandoned the job.</p> <p>“ The respondents contended, and were permitted to argue to the jury, that upon the evidence there was a conspiracy between Carson and the petitioners to defraud the respondents, and to compel them to pay the claims for labor, after having paid Carson according to the contract; and they requested the following instructions:</p> <p>“ 1. That if the owner of the premises orally forbade any of the petitioners to do further labor they could maintain no lien for labor afterwards performed, unless such forbidding was subsequently withdrawn, either directly or by instructions to the contractor to proceed.</p> <p>“ 2. That Carson was working under an oral contract, which the respondents had a right to terminate at any moment; and if the jury should find that the authorized agent of the respondents, in the presence of Carson, orally forbade any of the petitioners to do further work on the .premises, and that Carson made no answer or comment, that was evidence from which they might and that the contract between Carson and the respondents was lissolved, and that the petitioners so forbidden had notice thereof.</p> <p>“ 3. That if the jury should find that Carson’s contract with the owners of the premises was terminated, the petitioners were not thereafter performing labor by virtue of an agreement with or by consent of any person having authority from or rightly acting for said owners, unless Carson afterwards received authority from said owners to employ the plaintiffs to perform said labor, and that if such contract was so terminated, and no such authority afterwards received, the jury must be satisfied that the certificates were filed within thirty days after such termination, or they could not find for the petitioners.</p> <p>“ 4. That the jury must find how much work was performed by each petitioner upon each' house, and how much money was paid to each for the labor done by him upon each house separately ; and that, if the jury could not so find in the case of any of the petitioners, in such case they must find for the respondents.</p> <p>“ 5. That if the jury should find no evidence introduced to show how much labor was performed by the petitioners, or some of them, upon each house separately, and how much money was paid to each of them on each house separately, except the statement of each petitioner severally, and that said petitioner cannot state that their appropriations of time and money were correct; the jury must find for the respondents in such cases.</p> <p>“ The judge declined to give the instructions, except as they, or the substance of them, may be con tained in the instructions which, among others, were given; and, among other things, instructed the jury as follows: Each of the petitioners is bound to satisfy you that he did work, and, before he is entitled to a verdict against each house, that he did work, and that some amount remains due to him for work performed, on each house. Each petitioner is entitled to recover against a house only the amount which he satisfies you remains due to him for work performed on that house. The burden is on the petitioner in each case to satisfy you of the amount of work done by him on each house, and of the amount due to him for work on each house. It is not sufficient that you should be satisfied that any petitioner did the gross amount of work which is charged to the two houses, but he must satisfy you that there is some specific sum due to him for work on each particular house, before you can give him a verdict against that house.</p> <p>“ The judge instructed the jury as to the different ways in which a contract might be terminated; among other things, that, so far as these petitioners were concerned, if Carson abandoned his contract, that would terminate it; so if Tompson forbade Carson to go on longer on the contract, that would terminate it; that if the jury found that the contract was terminated, then if they should find that the petitioners were notified that it was so terminated, and were forbidden by Tompson to continue their work, for any work after that they could not recover; but if the contract was not abandoned or terminated in the manner stated or if the petitioners had no notice of such abandonment or termination, then the petitioners, so far as this question is concerned, might recover.</p> <p>“ The jury found verdicts for the full amounts claimed by all but one of the petitioners; and to the above rulings and refusals to rule the respondents alleged exceptions.’</p>

<p>By the ordinance of 1647, flats on the sea shore, not previously granted to individuals, nor appropriated to public uses, although within the bounds of a town already established, passed to the proprietor of the adjoining upland.</p> <p>A. grant by a town, since the ordinance of 1647, of the land next tide water on either side of a street, bounded “with the street” and “ the bay,” passed the fee in the soil of the street and in the flats in front thereof.</p> <p>A. grant from the colony of Massachusetts to the town of Boston, before the passage of the ordinance of 1647, of flats at the end of a street, the title in the soil under which street had been granted by the town to the abutters thereon between 1639 and 1645, cannot be presumed from orders of the town at different times from 1643 to 1652, granting liberties to wharf, establishing landing places and highways, and providing for the erection and maintenance of fortifications, upon flats in other places; from successive orders of the town in 1673-4, granting to the abutter on one side of the street “liberty to wharf before his own land in proportion 'rith other men,” reciting that he had staked out pari of his wharf “before the town’s ground and highway adjoining to his land,” and direct ing him not to proceed to wharf there without the consent of the selectmen, granting liberty to a person to whom he “ hath sold the privilege of said flats ” to wharf a certain breadth thereon, and granting liberties to the owners of lands next beyond to wharf in front thereof, and to the abutter on the other side of the street “ to wharf in proportion with his neighbors; ” from an order of the selectmen in 1683, “ staking out for the town’s use” the same street “on the side of the land ” of the first abutter, and another street leading from the first street along the shore, and purporting to grant to the abutters op the second street the flats and land between it and the sea in proportion to their fronts thereon upon condition that they should repair this street; and from the repetition of this condition in an order of the town in 1736 reducing the width of this street.</p> <p>Licenses more than sixty years old, produced from the proper custody, purporting to show the exercise of ownership of land, are admissible in proof of the licensor’s title, in con* nection with evidence of actual enjoyment in accordance with it, without direct proof of possession of the licensee under them.</p> <p>Evidence of the maintenance by a town or city of a fish-house and engine-house at the end of a highway next the sea, and of its repairing a capsill resting cn a stone wall at the head of the dock, is competent to show a disseisin by the city, at least to the extent occupied by the buildings.</p> <p>On the trial of a writ of entry brought by the city of Boston to recover a parcel of flats five hundred feet long, lying at the end of a highway, and bounded by prolongations of the side lines thereof, the city offered in evidence orders passed by the mayor and alder men, for the purpose of removing a nuisance mainly caused by the discharge of an ancient sewer, and after notice to the tenant and all persons interested, and hearing him in his own behalf, directing that the sewer “ be extended five hundred feet over the land and flats belonging to the city in the direction of the channel, under the direction oi the superintendent of sewers and drains,” and that due notice be given to the tenant an all others interested to remove a building in the highway near the entrance of the sewe into the dock, and that in default thereof the city marshal remove the same; and evidence that immediately afterwards, pursuant to these orders, the building was removed by the city marshal, and a structure six feet wide and ten feet high above the mud, consisting of two rows of piles with a box drain between them, was built under direction of the superintendent of sewers through the whole length, of the parcel of flats in question. Held, that this evidence was competent to show an act of the city under a claim of title in the whole parcel, which gave it a sufficient seisin to support the action against any one who did not show a better title in himself, and to put the tenant to proof of hia title; and that, upon the question whether this act of the city was under a claim of title in the whole dock, the declaration filed by the tenant in an action presently afterwards brought by him against the city for an injury to his wharves on either side of the dock by the discharge of filth through the sewer so built, in which he alleged the title in the dock to be in the city, was competent evidence against him; but that his previous oral admission of the city’s title in the dock, and the boundary of his own land by the side of the street and the dock at the end thereof in earlier deeds under which he derived his title, were not competent evidence against him.</p>

<p>A man who has carnal intercourse with a woman (not his wife) without her consent, and while he knows that she is insensible and incapable of consenting, is guilty of rape.</p>

■ Complaint charging the defendant with assaulting Robert Crossman, a deputy of the constable of the Commonwealth, and unlawfully obstructing him in the execution of the duties of his office.

Complaint charging the illegal keeping of intoxicating liquors; made to the municipal court of Taunton, the record of which stated that the complaint was received and sworn to before the court.

<p>A woman, divorced from bed and board, who has obtained a decree for alimony against her husband, is entitled, as a creditor, to impeach a conveyance made by him with intent to defraud her.</p> <p>Under the Gen. Sts. c. 124, §§ 23, 29, the right to enforce a decree for alimony against the goods and estate of a husband is not lost by his arrest on an execution issued upon the decree, and his discharge with the consent of the judgment creditor.</p> <p>An alias execution to enforce a decree of alimony is not void because issued without notice to the debtor.</p> <p>Upon the trial of a writ of entry to recover lana as conveyed to the tenant with intent tfl defraud the grantor’s creditors, evidence of declarations of the grantor before the com veyance, not in the presence of the tenant, are admissible to show the fraudulent intent</p>

Contbact on a recogmzance entered into under the Gen. Sts. c. 124, § 10, by Luther H. Clark as principal, and the other defendants as sureties.

Tobt. In the writ the defendant was summoned “ to answer unto Louis Lapham, who sues in his own right, but with the intent to benefit Frederick Slocum thereby, in an action of tort.” Judgment was rendered in the superior court for the defendant, and the clerk taxed his costs. The plaintiff appealed from the taxation, not disputing particular items, but denying liability for any and all costs. The superior court affirmed the taxation; and the plaintiff appealed to this court.

<p>Contract to recover the price of velocipedes. At the trial in the superior court, before Seudder, J., the evidence tended to show that some of the velocipedes were contracted for while in process of manufacture, and that the defendant never called for them. The defendant contended that he never had notice that they were completed, and that they never were offered or tendered to him. The plaintiff contended that he gave such notice by a letter, which he testified that he wrote and sent by mail directed to the defendant at Boston, where the defendant’s place of business was. There was no evidence that the letter was directed to any particular place in Boston, and it was in evidence that the plaintiff had been to the defendant’s place of business and knew where it was. The defendant testified that he never received any such letter.</p> <p>“ The defendant requested the judge to instruct the jury that mailing such a letter was not sufficient notice, unless they were satisfied that the defendant received the same. The judge gave this instruction; and also instructed the jury that the mailing of the letter would be prima facie evidence that it reached its destination, subject to rebuttal by the defendant’s testimony.”</p> <p>The jury returned a verdict for the plaintiff for the whole sum claimed by him ; and the defendant alleged exceptions.</p>

Tort for publishing in the Taunton Daily Gazette the following notice, signed by the defendant, concerning the plaintiff: “ A young man named George Hatch having left my employ, and taken upon himself the privilege of collecting my bills, this is to give notice that he has nothing further to do with my business.” At the trial in the superior court, before Wilkinson, J., the defendant justified the publication on the ground that its occasion was such as to make it a…

Contract on a policy issued by the defendants under date of October 29,1867, insuring the plaintiff’s barn against fire, in the sum of $800, “ being not more than three fourths of the value of the property described in the application of the insured,” and containing the following printed clause : “ This company shall in no event be liable beyond the sum insured, nor beyond three fourths of the actual cash value of the property insured at the time of the loss or damage, nor…

Contract to recover the amount awarded by referees to be paid to the plaintiffs for a tract of land.

Replevin of a wagon. At the trial in the superior court, before Wilkinson, J., it appeared that Jarvis B. Horton, the original owner of the wagon, sold and delivered it to Charles A. Horton, who subsequently sold it to the plaintiff ; and that, while in the plaintiff’s hands, it was attached by the defendant, a deputy sheriff, on a writ against Jarvis B. Horton. There was evidence tending to show that the sale by Jarvis B. Horton to Charles A. Horton was on a Sunday.

Contract on the following order, drawn by John E. Coyle on the defendant and accepted by him : “ Please pay William M. Cook or order twelve hundred dollars, payable when house is ready for occupancy.” Trial in the superior court, before Pit-man, J., without a jury, who reported the case as follows: “ It appeared that at the time when the draft was given and accepted Coyle was building a house for the defendant, and the plaintiff knew that such was the case, although he did…

<p>The plaintiff gave a bill of sale and a mortgage of furniture in his dwelling-house to the defendant; but the furniture remained in the plaintiff’s custody, and he removed it to another dwelling-house, and some time afterwards went away, leaving the house locked, with the furniture in it; and the defendant unlocked and entered the house, and took away the furniture. Beld, that in the absence of proof of any license from the plaintiff, express or implied, the entry was a trespass, although the defendant believed and had reasonable cause to believe that the plaintiff did not mean to return.</p>

<p>A contract to convey, “ by a deed conveying a clear title, that parcel of land on the cornel of A. and B. Streets, and owned by the vendors,” is not satisfied hy the tender of a warranty deed conveying “ that parcel of land on the comer of A. and B. Streets, now owned by the grantors,” if there is an incumbrance on the land.</p>

Tout for obstructing the plaintiff’s easement in a way leading from a highway along the easterly side of his land in Fall River.

Petition to the superior court for partition of land in Dighton. The respondent did not deny the right and title of the petitioner to any part of the premises claimed by him.

Petition for partition of “ a dwelling-house, and land beneath the same, and the appurtenances thereof ” in Taunton, the petitioners claiming one half part thereof. The case was submitted to the judgment of the court on a statement of facts, of which the following are all that are material: Sarah Howland and Dinah Potter became entitled to the land whereon the dwelling-house stood, in equal shares as tenants in common, in 1831.

Bill in equity filed January 26, 1869, by Ansel Carpenter and Mary Sibley against the executor of the will of Apollos Cushman.

Tost for breaking and entering the plaintiff’s close in Attleborough.

<p>Bill in equity under the Gen. Sts. c. 113, § 2, cl. 11, against John McDonald, John Turner and Robert Wolfenden. The case, as it appeared from the bill and McDonald’s answer, on which it was reserved by Colt, J., for the determination of the full court, was as follows :</p> <p>The plaintiff was the holder of a promissory note for $1000, made by McDonald and Turner and secured by a mortgage on real estate. McDonald and Turner had no property which could be come at to be attached or taken on execution in a suit at law against them, but Turner had given to McDonald a mortgage on personal property to secure a debt for $600, and had subsequently sold the mortgaged goods to Wolfenden, who had agreed to assume the mortgage debt and pay it to McDonald. The bill prayed that Wolfenden might be ordered to pay the $600 to the plaintiff in partial discharge of his note.</p>

Bill in equity by William T. Russell, his two sons, and Catherine B. Anthony, alleging that Mary Grinnell by her will gave to Joseph Grinnell, one of the defendants, “the sum of $4000 to be held by him in trust for the use and support of my brother William T. Russell, and his wife and children,” also gave to Joseph Grinnell and Joseph R. Anthony “ the sum of $4000 to be held by them in trust for the use and support of my sister Catherine, wife of Joseph R. Anthony,” and gave…

<p>Appeal by residuary legatees under the will of Charles W. Morgan against a decree of the probate court allowing the second account of William J. Rotch, the executor. The case was submitted to the judgment of the court on these facts agreed:</p> <p>Charles W. Morgan died in 1861, and letters testamentary were issued to Rotch. Included in the estate were 350 shares of the stock of the Bloomsburg Iron Company. These shares Rotch, in 1862, sold, as executor, at public auction, and bought them for himself, either in Ms own name or in the names of others who subsequently conveyed them to him; and large dividends were paid to him by the company after the sale. In 1867, the executor was cited by the residuary legatees to render Ms account wMch he did, accounting for the shares as sold; but the judge of probate refused to allow the account, and charged Mm with 25C shares standing in Ms name, and the proceeds of 100 shares which had been sold by him, “ said 250 shares to be treated as still belonging to the estate, and the other 100 shares to be considered as sold for the benefit of the estate, and all dividends received by Rotch on the whole 350 shares to be duly accounted for, he to have the benefit of all payments and expenditures which he could have rightfully made in relation to the stock if the same had not been sold, also of all sums he has already charged himself with on account of such sales.”</p> <p>After the decree of the probate court, and in settlement of litigation concerning the subject matter of it, an agreement, entitled “terms of adjustment,” was entered into, February 25,1869, between the executor and the residuary legatees, by which it was provided that the executor should transfer the 250 shares in his hands to the residuary legatees, and should pay over to tiiem 75 per cent, of all the sums received by him from the sale of the other 100 shares, and from the dividends received by him on all the shares, and that “ said Rotch is to have the benefit of all payments and expenditures which he could have rightfully made if the stock had not been sold, and also of all sums he has already charged himself with on account of the 350 shares.”</p> <p>Between 1862 and 1869 Rotch paid an income tax to the United States on the "dividends received by him on these shares, and also on the profits of the sales of the 100 shares sold by him, and in his second account he credited himself with the sum so paid, amounting to $9000. This tax was paid by Rotch as on his private property.</p> <p>“ ISTo return under the internal revenue laws of the United States was ever made of the earnings and losses of the estate of Charles W. Morgan, or any executor, trustee or custodian thereof, nor was any ever required from the estate by United States assessors, nor tias any assessment of income tax ever been made against the estate or the executor thereof. The United States revenue assessor claims that, under the revenue laws, the estate of a deceased person in the hands of an executor or administrator is hable to pay an income tax on its gains and income, to be assessed to and paid by the executor or administrator; but in the first congressional and assessment district of Massachusetts, (within which Charles W. Morgan lived and died and Rotch resided,) no such income tax has ever been assessed and collected, though since the passage of the income tax act many estates in said district have been situated like the estate of Charles W. Morgan, having gains or income accruing while in the hands of executors and administrators. In the Suffolk district this has been otherwise.”</p> <p>The second account was allowed by the probate judge, and the residuary legatees appealed.</p>

<p>Bill in equity, filed August 17, 1870, by the executors of the will of James Arnold, praying for instructions. The case, as it appeared from the bill and answers, on which it was reserved for the determination of the full court, was as follows :</p> <p>The testator died December 3, 1868, leaving a will by which he gave a certain sum “to George B. Emerson, John J. Dixwell and Francis E. Parker, in trust, to be by them applied for the promotion of agricultural or horticultural improvements, or other philosophical or philanthropic purposes, at their discretion, and to provide for the continuance of this trust hereafter to such persons, and on such conditions, as they, or a majority of them, may deem proper to carry out the intention of the donor.”</p> <p>He gave the residue of his estate to his executors “ in trust for the purposes following: The same to be divided, as fast as the net income or proceeds thereof shall be realized, into twenty-four parts, and to be distributed to and among the following persons,” naming more than thirty persons to whom he gave legacies of twenty-fourth parts and fractions of twenty-fourth parts of said residue, and concluding the residuary gift thus: “ The last named devisees, eighteen in number, shall in no case be entitled to claim or receive from my residuary estate a sum greater than $25,000 for every one twenty-fourth part, or in that ratio, for the bequest to them.”</p> <p>At the time of the testator’s death one twenty-fourth part of the residue was more than $50,000; and the residue was after-wards much increased by the receipt of net income, earnings and proceeds, by the executors.</p> <p>The instructions prayed for were, as to the validity of the gift to Emerson, Dixwell and Parker, as trustees, for a charity; and as to whether said last named eighteen devisees “ are now entitled only to the gross total amount of $25,000, or to that sum and accumulated earnings, receipts and income thereof from the time said principal might have been divided and paid the full sum of $25,000 for each twenty-fourth part as aforesaid, to wit, the death of said testator, or what the true interests and rights of said legatees are in said residue.”</p>

<p>Contract to recover for pasturing seventeen lots of the defendant’s cattle at different times during the spring, summer and autumn of 1867.</p> <p>At the trial in the superior court, before iScudder, J., several witnesses, who testified that they were farmers, were acquainted with the pasture where the plaintiff put the cattle, had pastured cattle transiently and by the season, and knew the usual price of pasturing in the vicinity, were allowed, against the objection of the defendant, to state whether it was worth more to pasture ‘Battle transiently than by the season.</p> <p>It appeared that the pasture in question, and the farm connected therewith, belonged to Benjamin Hall and Jonathan and William Slade; that the plaintiff hired it of the owners from year to year on shares, retaining one half of the proceeds of the place and giving the owners the other half; and that the defendant put in the cattle trader an agreement with the plaintiff, and without the knowledge of said owners ; that the plaintiff had the entire charge of the premises; and that the owners never had anything to do therewith.</p> <p>The defendant requested the judge to rule that the owners were tenants in common with the plaintiff of the crops and proceeds, and that the plaintiff could not maintain the action in his own name; but the judge declined so to rule. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Contract for money had and received to the plaintiff’s use. At the trial in the superior court, before Morton, J., it appeared that the money was paid by the plaintiff to the defendant for an interest in the ship Napoleon, but that the defendant refused to give the plaintiff a bill of sale thereof.

<p>Upon a contract, with no express exception against any perils, to ship and transport certain casks of oil from one seaport to another, the contractor is liable for a loss of the oil, occasioned while shipping it in the first port, either by a peril of the sea which resulted in breaking the ship’s tackle attached to the cask for the purpose of hoisting it on shipboard from a lighter, or by the breaking of the tackle of a crane standing on the pier and used for loading the oil upon the lighter, and the consequent fall and breakage of the cask.</p>

Trustee process. Writ dated June 7, 1870. In the superior court, the defendant was defaulted, and the Taunton Locomotive Manufacturing Company, a corporation summoned as trustee, disclosed a sum of money due to him as wages, to which Thomas Boulton made claim, and for which it was agreed that the trustee was chargeable unless on the following facts it could bo held by the claimant.

Contract to recover the price of goods delivered to Mary Bush.

<p>Contract by the administratrix of Edwin Manley upon an oral promise to pay the following order: “ Pall River, October 9, 1868. Nicholas T. Geagan, Sir: Please to pay Edwin Manley thirteen hundred and fifty-four dollars for work on your house, comer of Bedford and Twelfth Streets, and charge the same to account of H. B. Borden & Co.”</p> <p>The answer denied all the plaintiff’s allegations, and pleaded want of consideration, and the statute of frauds.</p> <p>The trial was in the superior court, without a jury, before Pit-man, J., who made the following report of the case for the determination of this court:</p> <p>“ The plaintiff proved that her intestate, in whose favor the order was drawn, did work as a stone mason on a block of buildings belonging to the defendant, and which he was then erecting, prior to the time of drawing this order. It appeared that the whole contract was taken by H. B. Borden & Co., who employed the plaintiff’s intestate to do the mason work, and that there was no contract between the plaintiff’s intestate and the defendant, and no employment by the defendant; that after the work was done the defendant sent word to the plaintiff’s intestate to get an order from Borden & Co. on him; adding, ‘ I am going to pay all off on the 10th, and am not going to trust Borden & Co. to pay it; I am going to see the help all paid; ’ and that this was communicated to the intestate; that the next day he procured the order in suit and presented it to the defendant; that the defendant took it, read it, said it was all right, and that he would accept it, and pay it on Monday; that on Monday he could not be found, was gone out of town for a week, and has since refused to pay it, The defendant, who was called as a witness by the plaintiff, testified that he owed H. B. Borden & Co. nothing at the time when this order was presented; and I find as a fact that it is not proved that he actually did. owe them anything. The defendant offered no evidence.</p> <p>“ Upon the above, the court ruled that the promise of the defendant,- being an oral promise to pay the debt of another, and being also without any consideration, no action could be maintained on it, and thereupon found for the defendant. If this ruling is wrong, a new trial is to be had; otherwise, judgment on the verdict.”</p>

Contract to recover $129, as the price of goods .sold and de • livered.

<p>Inbictment for burning Joseph Akerman’s barn and slaughter-house. Trial in the superior court, before Wilkinson, J., who allowed this bill of exceptions ;</p> <p>“The evidence for the Commonwealth tended to show that Akerman’s building described in the indictment was discovered to be on fire about ten o’clock in the evening of Saturday, January 16,1869. The fire was on the outside of the building ; and on the ground and against the building were found the charred remains of what was contended to have been a box by means of which the fire was set, about six inches square on the bottom and about twelve inches high, containing a block of wood perforated with an auger hole of the size of a candle. It was contended that it had been lined with zinc and nailed with three kinds of tacks. These remains were put in evidence. A few pine and mahogany shavings and cedar chips, some of which were partially burned, were also found with the box, which, with some burnt pieces of old carpet, an old shoe, and the pieces of a broken stone bottle, found at the same place the next morning, were also produced and put in evidence. There was evidence that there was only one place in Xewburyport where mahogany shavings like these produced were made. It was contended by the Commonwealth that this box, in its construction and with its contents, was peculiarly adapted for incendiary purposes, and no other.</p> <p>“It appeared that the defendant was a ship-joiner by occupation, and resided on Tyng Street in Xewburyport, half a mile or more from the building of Akerman; that an outbuilding on his premises was used partially as a shed and woodhouse, and partially as a workshop, having a bench in it. There was evidence tending to prove that the defendant was at work on pieces of board in this shop on two or three occasions when the door waa fastened on the inside. The Commonwealth contended that this and other evidence tended to prove that he was working secretly; but the defendant controverted b-'th the fact and the inference, and offered evidence tending to show that there was no other mode of keeping the door shut, except by a hasp on the inside.</p> <p>“ The defendant left Newburyport Friday, January 22, and went to Minnesota, where he was arrested the next month. There was evidence which tended (as the Commonwealth contended and the defendant denied) to show that he left secretly and covertly. This shed and shop were searched by the officers on various occasions soon after his departure, and the articles obtained there by them were produced at the trial and put in evidence. Among these articles, were a hammer, two bits, a cold chisel, several kinds of nails and tacks, like those found in the box, a piece of zinc, two pieces of leather, some shavings, some cedar chips and pieces of cedar post, and various pieces of wood hereinafter mentioned.</p> <p>“ Certain pieces of wood were also produced by the city marshal of Newburyport, concerning which he testified that they were brought to his office on the night of December 18, 1868, and that they then constituted a box, with a block, perforated with an auger hole, nailed to the bottom; and that afterwards they were taken apart and put into their present condition under his direction. The defendant objected to the introduction of any evidence in regard to this box, which for convenience was called box No. 2. The district attorney stated that he proposed to show that it was made by the defendant; and thereupon the judge, under the defendant’s objection, allowed the following, among other evidence, to be introduced in regard to it: Joseph W. Hardy testified that he found it in the rear of the Harris Street Church in Newburyport, on the night of December 18, 1868; that it was whole when he found it; that the block had a candle in it, lighted and partially burned, and there was a small lot of shavings in the bottom of the box, when it was opened; and that Harris Street Church is about half a mile from the defendant’s house. Other witnesses testified to its condition when it was brought to the police station; and one of them said he took it apart by order of the city marshal.</p> <p>“ The defendant objected to the admission of any testimony that this box No. 2 was made by him; but the judge ruled that such fact, if it could be proved, was a competent fact in the case. Under this ruling, the district attorney called several witnesses, who testified that they had worked upon wood of various kinds for many years, and had skill in determining whether different pieces of wood were in fact pieces of the same, and had been at any time separated. He then exhibited to them two pieces of pine which had been found, upon two different occasions, in the shop of the defendant, and asked them to examine them in connection with the block found in box No. 2, and to state their opinion whether they were all originally parts of the same stick, and had been separated from each other. This question was objected to, but not on the ground of the want of skill on the part of the witnesses ; but the judge allowed it to be put, and the witnesses testified that in their opinion these pieces all grew together as one piece of wood, and had been separated from each other. The district attorney also contended that the identity of the several kinds of nails found in box No. 2 with those found in the shop was evidence upon this subject: that the bits found in the shop would fit the auger holes in the box and the block found in it; that the face of the hammer found in the shop corresponded with an impression upon the bottom of the box; and that the hinges of the door to the box were made of leather similar to two small pieces found in the shop. Upon this and other evidence, the district attorney asked to be allowed to put this box and block in evidence. The defendant objected, but the judge ruled that there was some evidence that the defendant made it, and allowed it to go to the jury.</p> <p>“ Upon this subject, the judge instructed the jury substantially as follows : ‘ There is another species of evidence from which the government seeks to satisfy you that the defendant is guilty. They show you - another box, and seek to prove to you that it is of similar construction and was made in the defendant’s shop. The first question is, Did he make this box No. 2 ? They seek to prove this by circumstantial evidence; and a circumstance relied upon to prove guilt may be proved by circumstantial evi* dence, as well as by direct. If they have succeeded in satisfying you of the fact that he made box No. 2, it is not to be used to show that he made the box used at the Akerman fire, but would only be evidence that he possessed the requisite skill, materials, tools and opportunity to have made it. This is its sole use, unless you also find in the one such marks as show that one hand must have made both.’</p> <p>“ The district attorney also produced the following letter addressed to William H. Fitts, the city marshal, postmarked ‘ Newburyport, January 11, 1869,’ and received by the city marshal on that day; and offered to prove that it was written by the defendant :</p> <p>“6 It was lucky for the city that that old building, corner of Russia and Kent Streets, was torn down recently. Capt. Fitts, we are all out of boxes, but we expect a supply soon from Boston, then look out. Our motive is this — we want some business done here or none at all. Two of us concerned in this business. In firing the old town church we worked five nights in succession, before we got her agoing. The last night we put three gallons of kerosene on the floor; that done the business. No bell rope cut, nothing of the kind; rope was burnt off. We crawled underneath the church. A large hole was found on the stone work on the backside sufficient to let a man crawl under. In setting the Bellville Hotel afire we used two gallons kerosene oil, which accounts for the rapid spread of the flames. When the boxes come, look out. Pro Bono Publico.’</p> <p>“ This was objected to; but the judge overruled the objection, and admitted the testimony of experts, who testified to their opinion (based upon a comparison of the handwriting with the genuine handwriting of the defendant) that it was written by him. The defendant objected to the competency of the letter, upon the ground that it was immaterial on this trial; but the judge ruled that it was material and competent. The defendant asked the judge to exclude all of the letter relating to other fires; but the judge declined so to do, and suffered the whole letter to be read to the jury, and to be taken by them. This letter was put into the case before the offer of testimony that the defendant made box No. 2.</p> <p>“ Among other things, the defendant testified that he was not near the Akerman barn on the night of the fire; and offered other evidence tending to show where he was before, at and after the time of the fire, and that he was so situated that he could not have committed this crime. And the defendant’s counsel, in arguing the case to the jury, contended that this evidence was conclusive, and that, at least, it was so strong as to leave a reasonable doubt in the minds of the jury. In his charge to the jury, the judge, among other things, instructed them that where the defendant sought to establish the fact that he was at a particular place at any given time, and wished them to take it as an affirmative fact proved, the burden of proof was upon him, and if he failed in maintaining that burden, the jury could not consider it as a fact proved in the case; that the burden however was upon the government to show that the defendant was present at the time of the commission of the offence, and as bearing upon that question the jury were to consider all the evidence offered by the defendant tending to prove an alibi, and if upon all the evidence the jury entertained a reasonable doubt as to the presence of the defendant at the fire, they were to acquit.</p> <p>“ The defendant was found guilty, and alleges the foregoing exceptions.”</p>

<p>Ac indictment on the Gen. Sts. e. 161, § 80, and c. 168, § 8, charging that the defendant attempted “ unlawfully, wilfully and maliciously to administer ” poison to a horse, and “in such attempt ” did an overt act, sufficiently charges that the attempt, and the intent with which it was made, were unlawful, wilful and malicious.</p> <p>It is not a material variance, if the evidence admitted to sustain an indictment for filling and saturating a potato with a liquid poison, with intent to administer it to a horse, shows that a hole was made in the potato and filled with bran saturated with the poison, without the potato itself being saturated.</p>

Indictment for polygamy, found at October term 1869 of the superior court, under the Gen. Sts. e. 165, § 4.

<p>Proof that during the time charged in an indictment for maintaining a house as a liquor nuisance, and at a time, however brief, when the house was so used, the defendant was present, having the entire control and superintendence of the house, will sustain the indictment, although he was only a clerk or servant of the householder.</p>

Complaint to a trial justice, on the St. of 1869, c. 415, §§ 87, 44, for a warrant to search a vehicle for intoxicating liquors. The liquors were seized on the warrant, and Hugh Owen was summoned as claimant.

<p>The signature of the district attorney is not essential to the validity of an indictment.</p>

<p>A town ie not bound to erect barriers of any kind to prevent or warn trax ellera from straying off the side of a highway and falling into a dock twenty-five feet distant, although the land between the way and the dock is on a level with the way, and open.</p>

Tobt under the Gen. Sts. c. 44, § 22, for an injury alleged to have been received by the plaintiff through a defect in a highway which the defendants were bound to keep in repair. Trial before Ames, J., who reported for the judgment of the full court the case which is stated in the opinion.

<p>Ehe school committee has authority, not subject to revision if exercised in good faith, to exclude a pupil from a public school for misconduct which injures its discipline and management; and the expulsion of such a pupil from the school by a part of the committee, unanimously ratified afterwards by the full committee, is not an irregularity in the exercise of the authority, which gives the pupil a right of action against the town.</p>

<p>Tort for personal injuries sustained by the female plaintiff through falling into the vault of a privy. At the trial in the superior court, before Pitman, J., these facts appeared :</p> <p>John Gill and his wife were occupying a tenement in Lawrence, which he hired of the defendant, and to which the privy was attached. The privy was out of repair, and the plaintiffs requested the defendant to put it in repair. He said that he would do so, and accordingly made some repairs on it, himself, with the aid of a common laborer; and, after finishing them, he told Mrs. Gill that he had made it safe, so that she need not fear to use it. During the ensuing evening, Mrs. Gill went into the privy, when the floor of it gave way and she was precipitated into the vault.</p> <p>The plaintiffs offered evidence tending to show that the defendant did not possess the skill necessary to make the repairs; that they were unskilfully made, and with unsuitable materials ; and that the falling of the floor was a result of the manner in which they were made. The defendant testified, and offered other evidence to show, that he made such repairs as he thought needful to render the privy safe, and such as a prudent and careful man would have made. There was no evidence of any obligation of the defendant to make repairs, in the contract by which he demised the tenement to Mr. Gill; nor of any promise on his part to make them, other than as above stated.</p> <p>The defendant requested the judge to instruct the jury, 1. that, “ if there was no agreement between the plaintiffs and the defendant that the defendant should make repairs, then the defendant was under no obligation to make the repairs, and the plaintiffs cannot recover; ” 2. that “ if the defendant made repairs, and such as he believed to be sufficient and proper in order to make the premises safe, then he is not liable for the injury complained of; ” and 3. that “ the defendant is not liable, unless he knew or believed that the repairs which he made were insufficient, and that the premises were still unsafe and dangerous.”</p> <p>The judge “ refused the instructions prayed for, except the first, but did instruct the jury, that a landlord, independently of special contract, is not bound to repair; but if the jury are satisfied, from the evidence, that the defendant agreed to assume the repair of the privy, and did in fact repair the same himself, and thereafter assured the female plaintiff that the same was safe and in good repair, but in point of fact the same was not put in safe repair, by reason of the want of ordinary skill or care in the workmanship or selection of materials on the part of the defendant, and the female plaintiff, relying on the said assurance of the defendant, and using due care herself, was injured, then the plaintiffs may recover.” The jury found for the plaintiffs, with damages in the sum of §500 ; and the defendant alleged exceptions.</p>

<p>It is competent for a jury to find ale intoxicating on, the testimony of a witness who saw and smelled but did not taste it.</p> <p>In passing upon a bill of exceptions, no statute of another state can be considered, which is not made part of it.</p> <p>On the trial of an action for the price of ale sold to the defendant, the judge, in answer to a request of the plaintiff for a ruling as to the proportion of alcohol it must have contains! to have been a spirituous liquor, instructed the jury that, “in determining the question whether the ale was intoxicating, they were to consider whether in the common nse of the word it was an intoxicating liquor.” Held, that the instruction was to bi construed as referring to the common use of the word “ intoxicating.”</p>

Contract on an account annexed for the price of goods sold and delivered by the plaintiff to the defendant.

<p>The submission of an action upon a case stated by the parties, without limiting the plaintiff’s right to recover to the particular form in which the action is brought, authorizes the writ to be amended in the court where it is brought, into another form of which that court has original jurisdiction, although it has no jurisdiction of the action in its present form.</p> <p>A landlord and tenant process brought in the superior court by the owner of an estate for years, and submitted upon a case stated without limiting the right to recover to thaf form, may be amended to an action of ejectment, and judgment rendered for the plaintiff, if the facts agreed will support such an actic n.</p> <p>A conveyance of land to a married woman “in her own right ” is not a sufficient conveyance of it “ to her sole and separate use, free from the interference or control of her husband,” within the St. of 1845, c. 208, § 3.</p> <p>Under the provision of the Gen. Sts. c. 90, §§ 25, 26, that “ tenants at sufferance in possession of lands or tenements shall be liable to pay rent therefor for such time as they may occupy or detain the same,” and that “such rent may be recovered in an action of contract,” no action can be maintained by the owner of an estate in lands against one who never occupied under agreement, permission, or assent, express or implied, of the plaintiff or any one in privity with him. Chapman, C. J., dissenting.</p> <p>One to whom the rents and profits of a tenement belonging to a wife, and occupied by her and her husband, have been set off for a term of years in the levy of an execution thereon against the husband, cannot maintain an action against him, as a tenant at sufferance, under the Gen. Sts. c. 90, §§ 25, 26, for his subsequent use and occupation of the premises, if he continues to hold them claiming under his wife’s right and denying the plaintiff’s title. Chapman, C. J., dissenting.</p>

Wbit OB entry to recover land in Lynn. At the trial hi this court, before Ames, J., the jury found for the tenant; and the demandant alleged exceptions which are stated in the opinion.

<p>Contract against William E. Kimball and Isaiah Perkins, as executors of the will of Jonathan Kimball, on an account against the estate of the testator for upwards of $3000, for work done in his lifetime and afterwards. The answer set up the statute of limitations. Trial in the superior court, before Pitman, J., who allowed a bill of exceptions of which the following is the substance :</p> <p>Mary Kimball, a witness for the plaintiff, testified that the plaintiff received from the defendant Kimball, within a year before bringing the action, a payment of $100 on the account; and that she gave into said .defendant’s hands a receipt for the money. This receipt, upon call, the defendants produced; and, against their objection, it was allowed to be put in evidence, they contending and William E. Kimball testifying that he only lent $100 to the plaintiff as an individual transaction, and that the receipt was afterwards left at his house in his absence, and the plaintiff offering no evidence to connect Perkins with the receipt, or to contradict his testimony, which was given to the effect that he knew nothing of the receipt or of the money for which it was rendered. The receipt was signed by the plaintiff, bore date of the day on which William E. Kimball paid her the $100, and acknowledged receiving it in- part payment of her account against the testator’s estate.</p> <p>“ The plaintiff contended that, the receipt having been produced by the defendants on call of the plaintiff, and witnesses examined in relation to it as above recited, and the same having been retained by the defendant Kimball in his possession after it was left at his house till the trial, should be read and submitted to the jury. The defendants objected, and contended that it was not competent to be read to the jury as affecting the defendants, or either of them; but the judge overruled the objection, and permitted the receipt to be read and go to the jury, accompanied with special instructions, not objected to by the defendants, as to how far and in what measure the receipt, and the transaction to which it related, should affect either defendant.</p> <p>“ The plaintiff offered evidence of payments made by the testator in his lifetime, as she alleged, to take the case out of the statute of limitations pleaded by the defendants; and the jury were carefully instructed as to the provisions in the General Statutes as to the effect of part payment in. relation thereto by one executor.</p> <p>“ The jury returned a verdict against the defendants ; and to the admission of said receipt the defendants except.”</p>

<p>The oral promise of the indorser of a promissory note to pay it, made after the note is overdue, with knowledge that there has been no demand and notice and of all the facts in relation thereto, is a waiver of demand and notice on his part, whether or not at the time of making it he was ignorant of the legal effect of the want of demand and notice upon his liability.</p>

<p>A creditor who has obtained a judgment in another state, which is not absolutely void by its laws, and which the defendant has not attempted to avoid, cannot sue on the original demand.</p> <p>Pleading a judgment in bar of an action upon the original demand is a waiver of the defendant’s right to avoid it for want or insufficiency of service.</p>

Tort against a deputy of the sheriff of Essex for false imprisonment of the plaintiff. The defendant justified under the writ in an action brought in the superior court for Worcester by William O. Blaney against Ladrick, upon which he arrested Laárick; the validity of which arrest was the issue in this suit.

<p>A railroad corporation, whose road ended in Boston, received at a way station goods addressed to St. Louis, which it agreed to convey to Boston and forward thence by the Merchants’ Express, which was a line of transportation from Boston to the West. But instead of delivering them to the Merchants’ Express at Boston, it forwarded them to New York by other carriers, who there delivered them to a company styled the Merchants’ Express and Transportation Company, which conveyed them thence to St. Louis, at a cost greater than would have been the cost of their transportation thither by the Merchants’ Express. Held, that the railroad corporation was liable to the consignor of the goods for the difference in cost; and that it was immaterial that its general freight agent was ignorant of the Merchants’ Express line from Boston, and failed to be informed of it upon inquiring of several persons.</p>

Bill in equity, filed May 21, 1869, praying for an account of the rents and profits of a parcel of real estate in Salem, a decree for its reconveyance to the plaintiff, and general relief; said real estate being the property referred to in the following writing, signed by the defendant under date of May 21,1849, and the plaintiff alleging that the rents and profits thereof received by the defendant since it came into his possession exceeded the amount of his debt to the…

<p>Book debtors’ oath. Charges of fraud were filed by the creditor under the Gen. Sts. c. 124, §§ 31-34, upon which the debtor was found not guilty by the magistrate, and the creditor appealed to the superior court, where the debtor, after the decision reported 100 Mass. 287, had leave to file a supplemental plea in bar, setting up his discharge in bankruptcy. To this plea the creditor demurred, and Brigham, C. J., sustained the demurrer.</p> <p>At the trial by the jury, before the same judge, the debtor offered to prove his discharge in bankruptcy, and that the credit- or’s claim was barred by it; but the judge excluded the evidence, upon the ground, among others, that the arrest of the debtor was made before the passage of the bankrupt act.</p> <p>In support of the charges, the creditor offered in evidence an office copy of a mortgage made by the debtor to Thomas Huse. The debtor objected to its admission, on the ground that no foundation had been laid for the production of a copy, Huse being alive and actually present in the court room ; but the judge overruled the objection, and admitted the copy in evidence, and subsequently admitted in like manner copies of two deeds made by the debtor to one Andrew Hall.</p> <p>The jury found the debtor guilty, and he alleged exceptions.</p>

<p>Persons associating themselves to hold property and cony on business, without receiving an act of incorporation or organizing as a corporation under the general laws, are not taxable as shareholders in a corporation, but as partners; although their articles of association enable each of them to sell and transfer his interest in the property and business and thus introduce a new partner, and provide other forms of managing the business similar to those usual with corporations.</p> <p>The property of a partner in a firm is not taxable to him in the place of his residence, upon its market value, although by agreement between the members of the firm the share or interest of each of them in it is transferable at his pleasure.</p>

<p>Replevin of a lot of leather splits, to which the defendants claimed title by purchase from Peter Page. At the trial in the superior court, before Brigham, C. J., the plaintiffs sought to recover on the ground that they were the original owners of the splits; that Page induced them to sell him the splits on February 6, 1868, by fraudulent pretences; and that any transfer of title in the splits from Page to the defendants was with knowledge of the fraud, on their part.</p> <p>The plaintiff Skinner testified, in the plaintiffs’ behalf, that on January 11,1868, Page proposed to buy a smaller lot of splits, and, in reply to inquiries made by the witness, said that he was solvent, and that after currying and finishing splits, he consigned them to one Francis Tripp for sale, and Tripp thereupon ad vanced a check for their original cost upon them; that the witness thereupon agreed to sell the lot to Page on condition that he should consign them to Tripp when finished, and give the plaintiffs a check for the invoice; and that the sale was accordingly effected on a credit of thirty days, which was the time estimated to be needful to curry and finish splits. The defendants objected to this testimony; but the judge allowed it, upon a statement of the plaintiffs’ counsel that they contended that this purchase was part of the fraudulent scheme, and expected to prove that it was referred to at the time Page bought the lot which was the- subject of the action.</p> <p>Skinner then testified, under the defendants’ objection, that on February 6, 1868, Page came to him again, bringing Tripp’s check for the amount of the invoice, and remarked that he should like to buy another lot of splits; that the witness asked if he wished to buy on the same conditions as before, and Page said that he did; and that thereupon the sale of the replevied splits was agreed on, and they were sent to Page the next day.</p> <p>Skinner was further allowed to testify that on February 28, 1868, he went to Page’s shop and found it closed and empty. The defendants objected to this testimony, on the ground that it applied to a time after their purchase of the second lot from Page ; but the objection was overruled.</p> <p>The defendants’ evidence tended to show that they bought the second lot of splits from Page, in good faith and for their full value, on or before February 20, 1868, while he was finishing them; and they called Page as a witness, who testified that he bought them from the plaintiffs without fraud and unconditionally ; that he sold them to the defendants for cash; and that the defendants had no knowledge of his financial condition or of the circumstances under which he obtained the splits from the plaintiffs.</p> <p>On cross-examination, tne plaintiffs’ counsel asked Page what he had done with the purchase money which he said that he reeeived from the defendants ; and he replied, naming certain sums as paid by him to his father and his lawyer, and said that he had also paid various sums to workmen, and could name the men and the amounts if he had his books. It had appeared, in course of the trial, that Page began proceedings in bankruptcy in the district court of the United States on or about February 20, 1868, and that Skinner was the assignee of his estate in bankruptcy. Skinner accordingly produced the books of account of the witness, and the witness turned to the entries concerning his father and several workmen, and proceeded to state from these entries what he paid to them. The plaintiffs’ counsel then called his attention to erasures and alterations in these entries ; and he denied that the alterations, were made by himself, but in each instance testified that the entry as altered was correct. He also testified, in cross-examination, that when he failed he had no assets of any kind, and was owing several thousand dollars. The whole of this cross-examination was conducted under objection of the defendants, and was allowed by the judge, who subsequently permitted the plaintiffs to put the books of account in evidence and to call the attention of the jury to the alterations and erasures.</p> <p>The plaintiffs called several of Page’s workmen, after he had testified; and three of them, Matthew Cahill, Mark O’Neil and Luke Kelly were allowed to testify as follows, against the defendants’ objection: Cahill testified that, after Page’s sale of the splits to the defendants, and the removal of them from the shop, he isked Page what the workmen were going to do now that the stock was gone, and Page replied by asking him if he ever knew nim to cheat his workmen, and saying that he had a right to sell his stock to whom he pleased, and that he did not know but that it might come back to the shop to be finished. O’Neil testified that, after the sale to the defendants, Page told him that the stock might come back again. Kelly testified, in reference to one of the altered entries on the books, in which he was charged with having been paid $40, and in reference to which Page had testified that he paid the witness $40, that in fact Page paid him only $20.</p> <p>Skinner was also recalled by the plaintiffs, and was permitted to testify that on the 27th or 28th of February 1868, he went to Page’s shop, and asked “ what all this meant,” and Page said that he had failed because Tripp refused to make any further advances ; and that then he asked Page what had become of hie stock, and Page refused to tell him, or to give him any information about it. The defendants objected to this testimony, on the ground that Page had not been examined as to the conversation referred to.</p> <p>The jury found for the plaintiffs, and the defendants alleged exceptions.</p>

<p>An action cannot be sustained against a town, under the Gen. Sts. c. 70, § 16, upon a declaration on an account annexed for expense incurred in taking care of a person named, which does not allege that the person was a pauper, nor that the plaintiff was not liable by law for his support, nor that the expense was necessarily incurred after notice and request to the overseers of the poor, and until provision made by them.</p> <p>Notice and request made to one member of the board of overseers of the poor, intended for them all collectively, and for him to communicate to them, is a sufficient notice and request under the Gen. Sts. c. 70, § 16.</p>

<p>Two BILLS IN equity by owners of parcels of land bordering upon Orient Street, a town way in Swampscott, praying for injunctions on the inhabitants and the selectmen of the town against entering upon the land and injuring or disturbing the trees, shrubbery or buildings. The defendants answered, claiming a right to enter by virtue of proceedings had under the Gen. Sts. c. 43, §§ 59-65, for widening Orient Street; the plaintiffs each filed a general replication; and Wells, J., heard and reported for the determination of the full court the case which is stated in the opinion.</p>

Bill nr equity by the executors of the will of Nathan Webster, praying for instructions. Held: or are to be paid over to Gardner Webster and added by him to the trust fund left by the will for the benefit of Everett Webster and his children, or are to be distributed among the heirs of said testator.” 2. “ In what manner and in what proportion shall the respective devisees and legatees contribute to any whose estate' has been…

<p>Bell is EQUITY by the administrator of the estate of Daniel Silloway, deceased intestate, against eighteen persons alleged to be holders of or interested in certain promissory notes described in the bill.</p> <p>The bill alleged that the intestate died at Newburyport September 17,1866 ; that the plaintiff was duly appointed adminis trator, and assumed the trust; that the property of the intestate amounted to about $28,000; and that he left a widow, two children of a former marriage, namely, Daniel Silloway, Jr., and Mrs. Mary A. Bradley, five children of the second marriage, five grandchildren, (who were issue of three deceased children of the second marriage,) and a nephew.</p> <p>It also alleged that in September 1867, more than a year after the death of the intestate, Mrs. Bradley produced a sealed package, the existence of which was previously unknown to the plaintiff, and, as he believes, to all the world except Mrs. Bradley and her brother, Daniel Silloway, Jr., upon the envelope of which was the following inscription, dated September 24, 1864, and signed by the intestate : “ Special and confidential deposit, with instructions to my depositary. In any event that may happen to me to prevent my call for this sealed deposit, this deposit to be opened by the depositary in one year from said event, or of my death, and each sealed package to be delivered as directed. Each package to be opened in presence of the depositary, and a record of the contents of each made and delivered to or in presence of Daniel Silloway, Jr.”</p> <p>The bill further alleged that this envelope, being broken in the presence of the plaintiff, was found to cover eleven sealed packages, addressed, one to Mrs. Bradley, one to Mayo Gerrish and Hannah Gerrish, (who were the parents of the wife of Daniel Silloway, Jr.,) one each to the five surviving children of the intestate’s second marriage, one each to the three families of grandchildren, and one to the nephew; that printed circulars were sent by Mrs. Bradley to the persons to whom these packages were addressed, which circulars were dated September 28,1867, contained each a copy of the inscription upon the outer envelope, and gave notice that the envelope so inscribed had been opened in the plaintiff’s presence and found to contain eleven sealed packages, “ one of the same directed to you, and will be delivered to you or any person authorized to open the same, on October 7, 1867, from two to four o’clock, P. M., at the house of Daniel Silloway, Jr., as by the request and directions of the depositary; ” that on the day thus designated the several persons thus notified (except Mrs. Lucy J. Clark, one of the-children of the second marriage, who had meanwhile died) assembled pursuant to the notice, and the plaintiff was also notified and was present; that the sealed packages were then delivered to the persons to whom they were addressed, or their representatives, (except the one addressed to Mrs. Clark,) and on being opened were found to contain each a promissory note signed by Daniel. Silloway, Jr., dated September 24,1864, made payable to the intestate or his order three months after demand, and purporting to be indorsed by him payable to the order of said persons respectively; that the amounts of these notes were as follows: that indorsed to Mrs. Bradley, $3500, that to Mr. and Mrs. Gerrish, $10,000, and those to the four children of the second marriage who were present, to the five grandchildren, and to the nephew, $13,500 in all, making a total of $27,000; that the package addressed to Mrs. Clark remains in Mrs. Bradley’s possession unclaimed and unopened, and the plaintiff believes it contains a like note for $1000, which, if true, would make the whole amount of these notes $28,000 ; that, immediately upon this opening and examination of the packages, Daniel Silloway, Jr., who was present, said that he was ready to have demands made on him, and several of the persons made demand accordingly; and that then the company separated, each taking away his or her note.</p> <p>The bill further alleged that Daniel Silloway, Jr., took advantage of the insolvent laws of this Commonwealth in Decembei 1863 or January 1864, eight or nine months before the date of his notes in the packages, and obtained his discharge in insolvency, paying little or nothing to his creditors, among whom was the intestate; that from that time forwards, until the date of the notes, September 24, 1864, he did little or no business, and acquired no property, all which the intestate well knew; that on October 8, 1867, the day after the opening of the packages, he commenced proceedings in the district court of the United States as a bankrupt, in which he had since obtained a discharge ; and that in his schedule of debts as a bankrupt he included the promissory notes of the amount of $27,000 contained in the opened packages, and also a promissory note for $1000 as due to Mrs. Clark, and in his schedule of assets he made no mention of two promissory notes of the intestate, (hereafter to be mentioned,) for $24,500 and $3500 respectively, or of any proceeds therefrom or equivalent therefor.</p> <p>The bill then alleged that, after the lapse of some months from the opening of the packages, two promissory notes, purporting to be signed by the intestate and witnessed by Mrs. Bradley, were presented to the plaintiff by one John Huse in behalf of Jesse Thurlow, (who was a nephew of Daniel Silloway, Jr.’s wife,) with a demand for their payment; that these notes bore date of September 24,1864, were for the sums of $24,500 and $3500 respectively, payable to Daniel Silloway, Jr., or his order, on demand, with interest, and were indorsed by Daniel Silloway, Jr., payable to the order of Jesse Thurlow; that the plaintiff refused to pay these notes, and Jesse Thurlow brought two suits against him thereon, which were still pending; and that several of the holders of the notes of Daniel Silloway, Jr., in the opened packages, had, since the lapse of three months from the opening of the packages, demanded payment thereof from him, and three of them, (including Mrs. Bradley,) and George D. Thurlow, claiming to be indorsee of the $10,000 note from Mayo and Hannah Gerrish, had brought suits against him thereon, which also were pending.</p> <p>The bill then alleged “ that if, any transaction ever took place on September 24, 1864, as might be inferred from the existence of the various promissory notes hereinbefore set forth, it was as follows: That Daniel Silloway, Jr., and Mrs. Bradley, contriv ing and intending to so arrange matters that at their father’s death the property should not be divided among his several children as the property of an intestate would be, but that a larger share should pass directly to Mrs. Bradley, and indirectly to said Daniel, Jr., through his father in law and mother in law, said Mayo and Hannah Gerrish, secretly, and without the knowledge of the others interested in said estate, induced and persuaded their father to execute and deliver and inclose the various notes of that date; and that the whole of said transaction was w;th the intent to evade the statute "of wills, and dispose of the property of the intestate, after his death, in a maimer not authorized by law, and in violation of the rights of thé widow and of the other children of the deceased.”</p> <p>The final allegations of the bill were as follows: “ And the plaintiff says that it is sometimes wrongfully pretended by some of the defendants, that those among the recipients of the eleven packages, who on October 7, 1867, demanded payment of said notes, thereby ratified all the transaction which gave rise to said notes; but the plaintiff says, upon information and belief, that those persons were taken by surprise, were not fully informed as to the facts connected with the origin of said notes, and acted improvidently and without legal instruction or counsel, and are not bound thereby. And the plaintiff says that it is wrongfully pretended by some or all of the defendants that Jesse Thurlow is a bond fide indorsee and holder of the notes on which he has commenced suit; but the plaintiff alleges that he took them and holds them, paying no consideration whatever for them, and with a full knowledge of all the facts connected with their inception and origin; and that it is wrongfully pretended by some or all of the defendants, that said eleven notes above named, in the hands of the present holders, were each a donatio causé mortis, and therefore good and valid in law, but the plaintiff says that this is not so ; and that it is further wrongfully pretended by some or all of the defendants, that the said eleven notes are good and valid in them hands as a gift inte" vivas, but the plaintiff says that it is not so, and that it is further wrongfully pretended by some or all of the defendants, that the said interchange of notes was a common and usual business transaction, and, even if no consideration was paid on either side, it was for mutual accommodation, and the mutuality was a good consideration, but the plaintiff says it is not so. And the plaintiff says that he has demanded of and from the several persons who received the ten packages, that they should deliver to him the notes which were contained therein, and has made a similar demand on George D. Thurlow, who assumes to be the indorsee of the note inclosed to Mayo and Hannah Gerrish, and has demanded of Mrs'. Bradley the surrender to him of the package .directed to Mrs. Clark, which remained in said Bradley’s possession unclaimed.”</p> <p>The prayer of the bill was that the plaintiff, as having no adequate remedy at law, might have an order and decree “ that the several persons who hold or are interested in the several eleven notes, first mentioned in this bill, should bring them into this court to be cancelled and delivered to him ; that Jesse Thurlow be ordered to suspend further proceedings in his suit, and bring into this court his two notes above named, upon which he has commenced suit, there to be cancelled or to await such other disposal as the court may direct; that the whole transaction of September 24,1864, as herein set forth, may be declared illegal, null and void; that all parties be restored to their rights, as they would have been had none of said notes been given, and be enjoined to take no further steps in reference theretoand for such further and general relief as equity and justice may require.”</p> <p>Those of the defendants who appeared demurred to the bill for want of equity, and on the ground that the plaintiff had a full, adequate and complete remedy at law; and the case was thereupon reserved for the consideration of the full court, by Ames, J., who granted a temporary injunction, requiring the defendants “ to suspend and postpone the prosecution of any suit or suits at common law against the plaintiff upon any of the promissory notes described or referred to in the bill.”</p>

<p>A broker procured to be made to himself a deed of land which he was employed to sell, the grantor intending it only as a means of carrying into effect a supposed sale to a third person, but the grantee secretly intending to obtain the land to his own use, and also fraudulently misrepresenting the value of the consideration, which consisted of certificates of stock in mining companies. Held, that the deed was not void, but only voidable, on either ground; and that, if the grantor, who learned within two or three months the facts which entitled him to avoid it on the first ground, and within a year afterwards those which entitled an avoidance on the second ground, neglected for more than two years and a half from the time of the conveyance to do any act to avoid it, and meanwhile sold or otherwise disposed of many of the stocks, exchanging a considerable part of them for other stocks after he had full knowledge of both grounds of avoidance, he must be taken to have ratified the conveyance of the land, and could not maintain a writ of entry to recover it.</p> <p>On the issue whether certificates of stock in a corporation, given by the grantee as the consideration of a deed of land to him, voidable for his fraud, are absolutely valueless, and their return is not necessary as a condition of the avoidance, it is not sufficient that they have no intrinsic value and no market value, if they are capable of serving any purpose of advantage by their possession or control, or if their loss is a disadvantage to him in any way.</p>

Bill rsr equity by Gilbert Hawkes and Daniel Fairchild to redeem a lot of land in Lynn from a mortgage. The bill alleged the making of the mortgage by Daniel Fairchild, while he was owner of the premises ; his subsequent conveyance of the equity of redemption to Hawkes to hold in trust for him; and the desire and willingness of himself and Hawkes to pay what was' due on the mortgage.

<p>A tenant for life of land, on which there is a mortgage overdue, cannot hold possession of the land against the mortgagee, by paying interest as it accrues; nor can he, by paying the amount of the mortgage, compel the mortgagee to assign it to him; but a biV brought for these purposes may be maintained as a bill to redeem, if the plaintiff alleges his willingness to pay the amount due on the mortgage “ in such other way or upon such other terms as the court may direct,” and the answer alleges the defendant’s readiness to account as ordered by the court.</p> <p>An objection that a master’s report was “ delivered to the plaintiff and by him handed to the clerk, sealed up, and by him filed in the court, without notice given to the defendant,” must be taken before filing exceptions to the substance of the report.</p> <p>The interest of a tenant for life in land on which there was a mortgage in fee was taken on execution by the plaintiff; but the tenant for life and the reversioners, who were his children, remained in possession, and executed a deed of the land to the defendant, who, on the same day, took an assignment of the mortgage, and received some rent, they remaining in possession as before. Afterwards, on a writ of entry against the tenant for life, the plaintiff was put in possession as against him, but the officer’s return to the writ of possession stated that “actual and entire possession” was not given, the premises being withholden by the defendant, “claiming to be mortgagee,” The defendant had never entered to foreclose the mortgage. Held, that, until the service of the wit of possession, the defendant would be presumed to be holding under his deed, but afterwards would be presumed to be holding under his mortgage, and liable for such a rent as he might with due management have received.</p>

<p>A railroad corporation was insured, in a foreign stock insurance company, against its liability for loss by fires occasioned by sparks from its locomotives to property of others on lands not occupied by it, by a policy containing a printed condition that persons sustaining loss by fire “ shall forthwith give notice thereof in writing to the company, and within sixty days from the occurring of said fire shall deliver as particular an account of their loss as the nature of the case will admit.” The insurers had a general agent in this Commonwealth, appointed under the Gen. Sts. c. 58, §§ 66-78, who issued policies for them, had policies of the company signed in blank, containing a clause that they were not valid until countersigned by him, and made insurances himself and filled out and countersigned the policies, as he did with the policy in question. After several such fires had occurred, for which the railroad corporation was liable, but of which they had given no notice to the insurers, the treasurer of the corporation informed this agent that they were having numerous fires along the line, and that they were examining carefully the claims made on them therefor. The agent said this was satisfactory, and, when they had got through paying, to hand in a schedule of what had been paid, and it should be attended to. Held, that the agent had authority to waive, and waived, the preliminary proof of loss required in the condition; and that letters to him from the insurers, not communicated to the railroad corporation, were inadmissible to show a limitation of the authority.</p>

<p>A. mortgagor of personal property, who sells it either with the written consent of the mortgagee, or after informing the buyer that it is mortgaged, is not punishable under the Gen. Sts. c. 161, § 62.</p>

Indictment for perjury, averring that at Boston in the county of Suffolk, on March 29, 1869, Mary Ross was brought before the municipal court of the city of Boston on a complaint for larceny, and ordered to recognize with sufficient sureties for her appearance to answer thereto, and failing so to recognize was committed to jail; that afterwards, on the same day, “ at Boston aforesaid, before John G. Locke, Esquire, the said Locke being then and there a commissioner within…

Writ oe ERROR to reverse the judgment in a criminal proceeding against the plaintiff in error. Plea, in nullo est erratum.

Indictment for breaking and entering the dwelling-house of John A. Lowell in the night time, with intent to steal, and stealing therefrom a silver plated pitcher of the value of six dollars.

<p>Two complaints for larceny. At the trial in the superior court in Suffolk, before Seudder, J., on appeal from the municipal court of Boston, the defendant was found guilty, and alleged exceptions, which are stated in the opinion.</p>

<p>An indictment against three persons jointly for an attempt to commit larceny from the person of a fourth, which charges, as the overt act, that the three, with felonious intent, put “their hands ” into his pocket, may be sustained by proof that all three were participating in the act, though only one of them put his hand into the pocket.</p>

Complaint on the St. of 1869, c. 415, § 44, to a trial justice in Barnstable for a warrant to search a dwelling-house in Dennis, occupied by Elkanah S. Baker, for certain intoxicating liquors alleged to be kept by him therein for unlawful sale.

Indictment on the Gen. Sts. o. 44, § 21, for the loss of the life of Stephen Sargent on June 19, 1866, for want of suitable rails on the west side of a highway which the defendants were bound to keep in due repair.