Volume 106 — Massachusetts Reports

<p>h. conspiracy to obtain from a master mechanic, whose business requires the employment of workmen, money which he is under no legal liability to pay, by inducing or threatening to induce workmen to leave his employment, and deterring or threatening to deter others from entering it, so as to render him reasonably apprehensive that he cannot corr/ on business without making the payment, is illegal; and in an action of tort he may recover the sum so paid, and damages for the injury of his business by the acts of the conspirators; but whether he can recover back the sum paid, in an action of contract, as money had and received to his use, qucere.</p>

Contract in the name of the judge of probate for the county of Suffolk, on behalf of the devisees and legatees under the will of Daniel Pitman, against David Armstrong and John Turner, as executors of said will, on the bond, dated May 29, 1865, given by them to the plaintiff, by which they bound themselves jointly and severally, and which was conditioned that they should, “ First, make and return to the prohate court for said county of Suffolk, within three months from their…

<p>A testator gave one fourth of his property to his son A. and one fourth to his son 3. The other two fourths he gave to his executors, in trust to pay one half of the income to his daughter C. annually for life, and on her death to pay over and divide said moiety annually to A., B. and the legal representatives of a deceased daughter D.; and to pay the other moiety of the income of the trust property (and at the death of C. the proportionate share of her income which would fall to them) to the representatives of D.; and after the expiration of fifteen years from the date of the will, or as soon as his youngest living grandchild should become of age, then the trust property to be sold, and the proceeds divided between the representatives of A., B. and D., and the executors then to be discharged from the trust. Held, that no distribution of the trust fund was to take place till th'j death of C., although fifteen years had elapsed from the date of the will. Under a direction in a will to invest trust property in productive real estate, it may be invested in dwelling-houses, and the persons entitled to the income be allowed to occupy them.</p>

Bill in equity by Caroline A. Gardiner and William P. Gardiner for the specific performance of a contract by which the plaintiffs agreed to sell and the defendants to buy a lot of land in Boston.

Contract on a covenant against incumbrances in a deed from the defendant to the plaintiff of land in Boston. The case was submitted to the judgment of the superior court, and, on appeal, of this court, on facts agreed as follows: The deed was dated and delivered June 20,1868. The city, county and state taxes were assessed in Boston on the premises, May 1,1868, to the defendant, who was then owner.

<p>Tort for an alleged obstruction of an easement of light and air appurtenant to the plaintiff’s land in Boston. At the trial in the superior court, before Lord, J., without a jury, the following facts appeared:</p> <p>By deed dated July 27,1816, the New Cornhill Corporation conveyed to Benjamin Hurd a parcel of land, with a building thereon, bounded easterly on Cornhill Street; southerly on land of Larkin, thirty feet; westerly on a line at right angles with the boundary last mentioned, “ partly on a passageway of five feet wide in the clear for light and air hereafter mentioned, and partly on land of said corporation,” to other land of the corporation; and northerly by such other land of the corporation. The deed contained this clause : “ It is understood and agreed by the parties aforesaid, that the passageway for light and air is to be five feet wide on said Hurd’s line and two feet eight inches on Dorset’s Lane,” to which the passageway ran, “ and the same is always to be kept open for the purpose aforesaid, and said Hurd, his heirs or assigns, to have no other privilege in the same.” On September 19,1816, by an indenture between the New Corn-hill Corporation, Hurd and Ebenezer T. Andrews, to whom the corporation had sold a parcel of land bounded easterly by the land conveyed to Hurd, and southerly on the passageway, the parties agreed that whereas Hurd’s land, by his deed from the corporation, ran thirty feet from Cornhill to the passageway which “is to be kept open for light and air,” his line might now “ run four inches further on said passage in addition to the aforesaid thirty feet.” Hurd’s estate was by mesne conveyances vested in the plaintiff. On July 30, 1816, the New Cornhill Corporation conveyed to Uriah Cotting a parcel of land which abutted on the passageway, and this estate was by mesne conveyances vested in the defendants. At the time of the conveyances to Hurd and Cotting the corporation owned the fee of the passageway. The defendants erected in the passageway a structure ten feet high and about seventy-five feet from the plaintiff’s land. Other facts proved are immaterial for the purposes of this report. There was no evidence that the quantity of the light or air was diminished by the defendants’ obstructions.</p> <p>The judge ruled, “ upon the construction of all the conveyances, that the plaintiff took only the common law right of air and light, and that the evidence did not show that such right had been impaired in the case,” and gave judgment for the defendants. The plaintiff alleged exceptions.</p>

<p>Tort for an assault upon the plaintiff. At the trial in the superior court, before Pitman, J., the plaintiff testified that she occupied rooms in Boston, and had a right to the walks in the back yard, and to the close where the alleged assault took place. The defendant being called as a witness, a plan drawn by him was shown to him. “ The plaintiff objected to the same, but the judge allowed the defendant to testify that the plan was a substantially correct representation of the premises, and to explain to the jury the different points, locations, walks and fences, as marked on the plan, and where the alleged assault took place; the plan went to the jury room with the other papers; the plaintiff, however, made no further objections thereto, or to the plan, except as stated above, nor did the judge give any directions as to the plan going to the jury.” The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>Contract to recover the balance of an account of $4538, for lumber sold and delivered to the defendant at various times from June 1866 to January 1868, on which there were credits for money paid by notes and in cash, to the amount of $3853. Trial in the superior court, before Brigham, C. J., who, after a verdict for the plaintiff for the amount claimed, allowed the following bill of exceptions:</p> <p>“ The terms of sale as to credit being in dispute, the plaintiff testified that he sold the lumber for cash on rendering of bills, and, to show that the prices charged for certain qualities of lumber were the market prices at the time of delivery, called one Chase as a witness, who testified without objection that he bought the same classes of lumber of the plaintiff at about the same time ; that he purchased his lumber for cash; and that the prices charged by the plaintiff to the defendant were fair prices for the qualities of lumber charged upon the bill. The defendant, upon cross-examination, asked Chase whether he had paid the plaintiff by time note, or had paid any interest on the amount of the bills rendered by the plaintiff. He answered that he did not remember, but that the notes were not on interest, and his impression was that no interest was paid; that if any interest was paid it was included in the round sum for which the note was written. The plaintiff was then called by his counsel as a witness, and asked if interest was charged upon the bills, or included in the notes; and, the defendant objecting that the bills of lumber and notes given were the best evidence as to that, the judge admitted the question, and the witness answered, ‘ It was included in the note.’ The defendant then excepted to the ruling, and the judge ruled that, not having been notified of the exception before the witness answered, the defendant was not entitled to the exception. To the refusal of the judge to allow an exception to the evidence admitted under these circumstances, the defendant excepted.”</p> <p>“ The evidence for the defence tended to show that the plaintiff and defendant met together January 17, 1868, for a settlement; that the defendant made out a list of deductions for overcharges and improper charges, contained in the plaintiff’s bill; that the overcharges, as claimed by the defendant, and five per cent., agreed to be deducted from all bills, being deducted from the plaintiff’s bill, the defendant had overpaid him $522; that the plaintiff claimed a balance due of $685 ; that the plaintiff agreed with the defendant to make a deduction of ten per cent, from his entire bill, and certain corrections of errors, and accept payment of the balance in the defendant’s negotiable note on four months from that date; that the plaintiff was present when a statement was made by the defendant’s clerk, showing the balance due upon the foregoing basis of settlement; that the plaintiff saw this made, and said that the balance was right, and, the defendant having left the counting-room temporarily, the plaintiff said he had an engagement, and would meet the defendant and exchange the note and receipts at twelve o’clock of the same day at an office in Boston ; that at the time appointed the defendant was present and tendered the note for the balance, as agreed; and that the plaintiff refused to receive the same or to pass the receipts ; and the plaintiff admitted such tender and refusal. Contradictory evidence as to what took place at this alleged settlement, agreement and accounting was put in by the plaintiff, and also that the whole amount of his biff was then due without deduction.</p> <p>“ The defendant asked the judge to instruct the jury as follows: * 1. If there was a contest and dispute between the plaintiff and the defendant as to the price to be paid for the lumber delivered to the defendant, as to the quality thereof, or the correctness of the items, a settlement between the parties by the payment or the promise to pay [to a promissory note] a much less sum than the jury may now think is due, is binding [in compromise] and Would be a bar to this action [provided such promissory note was offered to the plaintiff as agreed.’] This instruction was given, with the addition! and qualifications included in brackets.</p> <p>“6 2. If under the same circumstances the plaintiff agreed to receive, and the defendant t j pay a much less sum, or to give a note for a much less sum in settlement of the claim, and the defendant is ready to perform, or has offered to perform, his part of the agreement, this action cannot be maintained; such new agree ment is binding on the parties.’ This instruction was refused.</p> <p>“ 6 3. If the sum due was liquidated and certain, and there was no dispute as to the same, if the parties agreed to settle the claim by giving and receiving a negotiable promissory note for any sum, no matter how small, in full satisfaction, such agreement would be binding; and if the defendant is ready to perform his part oi the contract no new action can be maintained on the original bill.’ This instruction was refused.</p> <p>“ 6 4. If the parties had a difference of opinion or belief as to the amount due, and after discussion and dispute they agreed to settle by making a deduction of ten per cent., and that thereupon, or in execution of the agreement, the defendant should give his promissory note for the balance, and that the plaintiff should accept it in full, and the note was tendered, such agreement or settlement is a bar to this action, although the plaintiff did not accept it, whatever may have been the plaintiff’s motive for making the agreement, in the absence of all fraud or legal duress.' This instruction was given as requested.</p> <p>“ The judge added the following instructions : ‘ 5. If the plaintiff and defendant, having between them a running account for lumber sold by the plaintiff to the defendant, and money paid by the defendant to the plaintiff, agreed upon the balance upon said account due to the plaintiff, and thereupon the plaintiff, agreed to receive from the defendant a less sum than the amount of such agreed balance in satisfaction thereof, and to receive the same in the promissory note of the defendant, an action could be maintained for the balance due from the defendant, unless such promissory note was accepted by the plaintiff; the tender .f such promissory note would be no defence to such an action.’</p> <p>“ During the dealing between the parties, the plaintiff signed a receipt, of which the following is a copy : ‘ April 20, 1867. Receive! of Harvey T. Litchfield his note for one thousand dollars, dated April 20, 1867, payable four months after date, on account of bills rendered. If there are any errors they shall be corrected, this note being given in haste without looking at the bills, and a discount of five per cent, to be made to him on all bills without interest.’ No instructions as to the legal effect of this receipt were asked for by the defendant; and the plaintiff’s counsel argued the question of its meaning and intent to the jury. Upon this receipt, the judge instructed the jury as follows: 6 The plaintiff now admits the execution of the receipt, but claims it applied to antecedent bills. If the jury think no interest was to be charged on the bills of lumber sold, then the interest which the plaintiff claims on his bill is to be deducted. So as to the five per cent, discount; if they think that is to be deducted from all bills, they will so find.’</p> <p>“ The defendant also offered evidence which showed that, after the refusal by the plaintiff to accept the note tendered him, he had made accord and satisfaction by giving his note to an attorney employed by the plaintiff, and had received the following receipt in full: ‘ February 4, 1868. Received of Harvey T. Litchfield his note of even date herewith for $168.60, on one hundred days, in payment in full of all demands of every name and nature. J. Q. A. Clifton, by his attorney, Josiah W. Hubbard.’ He also offered evidence tending to show that the plaintiff authorized Hubbard to compromise the claims as he pleased, and also held him out to the defendant as having full power to compromise the claim in any way he should deem proper. The plaintiff testified that he never authorized Hubbard to make the settlement, or held him out to the defendant as so authorized, and never notified the defendant that he had revoked the power of the attorney to settle the claim; and there was no evidence of notice to the defendant of revocation of the authority. Hubbard, called by the defendant, testified to making the settlement, and, on cross-examination, the plaintiff asked him, ‘ Have you not told the plaintiff, since the settlement of February 4, 1868, that you had not settled the matter with the defendant ? ’ His answer was 6 No.’ The plaintiff was put upon the stand to contradict Hubbard, and aga'nst the defendant’s objection was allowed to testify that Hubbard had stated to him, since February 4, that he had not settled with the defendant. The judge had previously ruled, in another connection, that if the receipt was given by Hubbard, he having been held out as authorized to settle, the claim was settled. No exception was taken to this remark of the judge.</p> <p>“ The judge further instructed the jury as follows s 6 The defendant admits substantially the plaintiff’s account, charging him with $4538, and crediting him $3853 ; but claims that as to the balance it was agreed between them that a discount of ten per cent, was made upon the bill, which discount, with certain deductions agreed upon between them for errors, left a balance of $168, for which the plaintiff agreed to take the defendant’s promissory note, which the defendant offered to him, and which was refused.’</p> <p>“ The defendant testified that some of the lumber was not of the kinds charged, that the prices were not fair, and that they were too high. And he relied also upon the conduct and agreements of the parties to show that the lumber furnished was not of the qualities set down in the bill, and that the prices were too high.”</p>

<p>Three parties agreed in writing “ to enter upon an operation embracing the purchasing and selling of shingles,” one to purchase and the other two to receive and sell them ; and the shingles to be the property of these two, and all the capital be furnished by them, but the profits and losses to be equally divided among the three. Held, that the three were partners as to third persons.</p> <p>A. made a written contract with B. for the sale of goods “ to B.,” knowing him to be buying them for a firm of which he was a member. Held, that the writing was not conclusive evidence of A.’s intention to give credit to B. individually, and that oral evidence was admissible to bind the firm on the contract.</p> <p>A. made a written contract with B. for the sale of goods “to B.,” who was acting for a firm of which he was a member, payment to be made “in satisfactory paper.” A. had no other transaction with B. Before any payment was due on the contract, A. drew on B. in favor of a third person, to whom B. responded by giving a draft on his partners, which was accepted. In an action to recover the price of the goods against the firm, A. testified that he drew on B. in his individual capacity, but admitted that he “ calculated,” if B. should give a draft which should be accepted or paid, to allow B. the amount when he settled for the goods; and B. testified that he gave the draft in part payment fc’ the goods. Held, that the draft must be considered as given in part payment for the goods, and to be allowed for in settlement.</p>

Bill in equity, alleging that the plaintiff and defendant, on April 9, 1866, entered into a written agreement in which, after a recital that the defendant had purchased an india rubber factory and was desirous of securing the services of the plaintiff in the business, and that the plaintiff was desirous of having an opportunity at some time of acquiring an interest and ownership in the property and business, it was agreed that the plaintiff should give to the defendant his…

Conte ACT. The first count of the declaration alleged that the plaintiff bought and the defendant sold a lot of land in Boston by auction; that the plaintiff paid to the auctioneer the deposit of $200 required, and had since in all other respects complied with the contract of sale; but that the defendant broke it, refused to convey the land to him, and conveyed it to another. A second count was for money had and received, to recover the deposit paid to the auctioneer.

<p>A hiring of personal service for which payment is made quarterly is not necessarily a hiring by the quarter or terminable by a quarter’s notice.</p> <p>The refusal of a judge to rule on the legal effect of part only of the evidence from which the terms of a contract are to be deduced affords no ground of exception.</p> <p>A. and B. agreed orally that B. should hire his services to A. at a yearly rate. B. served a year, and began the second year without a new bargain, jHeld, in an action by B. for his wages during the second year, that the original negotiations between the parties were competent evidence to show the terms of the contract, express or implied, under which the parties continued their relation; and that the statute of frauds was no bar to the action.</p>

<p>In replevin of goods sold, the seller, as plaintiff, sought to rescind the sale on the gronnd of fraudulent representations made by the buyer to the seller’s agent within ten days before the buyer sent an order for part of the goods through the agent; and it appeared that the seller delivered this part of them on a credit of sixty days, and before that credit had expired delivered the rest of them on an order directly from the buyer. There was no evidence that the representations were communicated by the agent to the seller before the date of the second order; but the agent testified that they had an influence in inducing him to accept the first order. Held, that this testimony, taken in connection with the date of the representations and the dates of the orders, warranted the jury in finding that the representations induced both sales, and that the order would not have been taken by the agent unless he believed the representations to be true.</p> <p>On an issue whether goods were obtained through fraudulent representations by a buyer in Illinois from a seller in Philadelphia, evidence that the goods were received a month or more before the buyer stopped business, and were immediately shipped by him to the East, and that such goods could not under such circumstances be sold at a profit, is competent to show fraudulent intent.</p> <p>Copies of bills signed by the seller and acknowledging the receipt of the price of goods, and of way-bills of a carrier for their transportation to an alleged purchaser, are not competent evidence against a third person claiming the goods on the ground that the property in them had never passed from him to such seller.</p> <p>In an action in which the plaintiff sought to rescind a sale on the ground that it was induced by the defendant’s fraudulent representations, the defendant requested the judge to rule that stronger proof was required to prove the representations false than to prove an ordinary agreement. The judge declined to do so, and ruled that the rule of evidence was the same as in other civil cases; that fraud was not to be presumed, but fairly found on the evidence; and that the burden was on the plaintiff to prove his case by the fair preponderance of testimony. Held, that the defendant had no ground of exception.</p> <p>In an action in which the plaintiff sought to rescind a sale on the ground that it was inducid by ths defendant’s fraudulent representations, evidence that the defendant made purchases from other persons, after the date of the representations alleged to be fraudulent, some of which were paid for, and others not, is incompetent, if unaccompanied by any evidence of fraud therein; as is also evidence that the defendant’s manager, by whom the representations were made, said, a month after they were made, that he had a share in the business, that the Jews should not get ahead of him, and that he would show them a Yankee trick.</p>

<p>Replevin of fifty barrels of whiskey by plaintiffs doing business in Cincinnati under the name of Mohr, Solomon & Mohr. Trial in the superior court, before Rockwell, J., who allowed a bill of exceptions of which the material parts were as follows :</p> <p>“ The plaintiffs, being the owners of a let of 250 barrels of whiskey, then stored in a United States government warehouse connected with the distillery of McGregor & Company in Terre Haute, Indiana, and insured by McGregor & Company in the name of the plaintiffs, about October 1, 1868, sold the whiskey, through their agent in Boston, to Edward Dewey, a merchant of that city, at $1.25 per gallon, in bond, upon a credit of four months, and caused the same to be inspected and gouged by the United States gauger. On October 3 they wrote Dewey a letter, inclosing the certificates of the gauger and storekeeper.” The storekeeper certified that the whiskey was in the warehouse, “ Mr. Edward Dewey, of Boston, Mass., being the owner of said whiskey as per Messrs. Mohr, Solomon & Mohr’s order.” Dewey accepted three drafts drawn by the plaintiffs for the amount of the purchase money, based upon the gauger’s certificate; the first two were paid; the last, which matured February 16,1869, was not paid.</p> <p>“It was a part of the terms of the sale that the plaintiffs should from time to time, as Dewey should request, ship the goods to Boston from the bonded warehouse, and pay-the storehouse charges, taxes, stamps and insurance, drawing on Dewey at ten days’ sight for the amounts so paid. In pursuance of this arrangement, Dewey, at four different times prior to February 1869, wrote to the plaintiffs, asking them at each time to ship fifty barrels of the whiskey to Boston. The plaintiffs thereupon wrote to McGregor & Company, directing them to.ship the same. On receipt of their orders, the whiskey was regauged at the warehouse for the purpose of ascertaining the amounts of taxes to be paid; the same, as also the United States stamps, were paid by McGregor & Company, who drew on the plaintiffs at sight for the amounts thus paid and for the storehouse charges, and sent a bill of the same to the plaintiffs, who paid the drafts and wrote to Dewey, inclosing McGregor & Company’s bill and the bills of lading for the merchandise, and advising him that they had drawn at ten days’ sight, and so drawing for the amounts paid by them. The insurance premiums were paid on the entire lot by the plaintiffs and repaid to them by Dewey, but the policies continued in the plaintiffs’ names and were not transferred to him. The plaintiffs wrote to him asking if that should be done, to which he replied directing them not to make the transfer.</p> <p>“ In February 1869, the plaintiffs, in accordance with the practice, having received an order to ship the remaining fifty barrels about February 1, directed McGregor & Company to ship the same to Dewey at Boston. McGregor & Company thereupon had the whiskey reguaged, paid the taxes and stamps, and drew on the plaintiffs at sight for this and for storehouse charges, sending to the plaintiffs a bill of the same, which draft was paid. The plaintiffs thereupon wrote to Dewey, inclosing McGregor & Com-pony’s bill, and the bill of lading for the fifty barrels, and advising him that they had drawn on him at ten days’ sight, and so drawing for the amounts paid by them. This draft, which matured February 25, 1869, was not paid. The bills sent by Mc-Gregor & Company to the plaintiffs, for taxes, &c., were all in the same form and made to the plaintiffs as debtors to McGregor</p> <p>6 Company. The United States bonded warehouse was under the charge and control of a United States government officer, and the whiskey could not be taken out of it unless it was first re-gauged and the taxes paid.</p> <p>“ Dewey failed on February 16. The goods arrived at the Boston depot of the defendants’ railroad, on their way from Terre Haute, Indiana, on the afternoon of the same day, and on February 17, while still at the depot, were taken on this writ, by an officer who paid the defendants’ bill for freight.</p> <p>“ Upon these facts, the defendants requested the judge to rule that the plaintiffs could not maintain their action ; but the judge refused so to rule, and directed the jury to return a verdict for the plaintiffs, with nominal damages,” which was returned, and the defendants alleged exceptions.</p>

Contract on the following note written and signed by the defendant: “ February 1, 1869.

Contract on a promissory note “ payable at any bank in Boston,” made .by the defendant George H. Butterworth, and indorsed by the other defendants, Albert F. Butterworth and Willard Manuel.

Contract on a promissory note, given by the defendant to the plaintiff. Answer, that the note was given for the purchase of oil property, so called, in Pennsylvania, concerning which the plaintiff had made fraudulent representations.

Contract on an account annexed for labor and expenses. At the trial in the superior court, before Brigham,, C. J., it appeared that an agreement in writing was made between the parties, that the defendant should build a spinning-machine at his own expense, according to letters patent which had been obtained by the plaintiff; that they afterwards entered into an oral agreement that the plaintiff should superintend the construction of the machine, and the defendant should pay…

Writ of entry to recover real estate in Boston. At the trial in the superior court, before Pitman, J., it appeared that the demanded premises adjoined a dwelling-house occupied by Bie demandant, and which she held under a devise in the will of her husband, Abraham Gr. Parker, of “ the house in which we now reside; ” and that the demanded premises also belonged to Abraham Gr. Parker, who was the tenant’s father.

<p>Petition for the assessment of damages occasioned to the petitioner’s land by the raising of the grade of First Street in Boston. At the trial in the superior court, before Pitman, J., the following facts appeared :</p> <p>In June 1868, at which time the land in respect to which damages were claimed belonged to William Everett, the board of aldermen of the city of Boston passed an order to pave First Street; the owners of lands abutting thereon, including Everett, were notified to furnish curbstones and pave the sidewalks in front of their respective estatesand Everett furnished the required curbstones. On August 17 the respondents commenced the grading and paving of the street, and worked thereon continuously until the grading and paving were completed, but there was no change of grade in front of the land in question until after September 1, on which day the land was conveyed by Everett to the petitioner, The respondents contended that the right to recover damages was in Everett; but the judge ruled that, if the land was injured by raising the grade of the street, while owned by the petitioner, he could recover therefor. The jury returned a verdict for the petitioner, and the respondents alleged exceptions.</p>

<p>A testator devised property to trustees in trust to pay the income to his daughter for life, on her death to pay it to her children, and on the death of each of her children to convey a portion of the property to the heirs of such deceased child. The testator’s daughter was alive at his death. Held, that the limitation of life estates to the daughter’s children was not void for remoteness.</p>

<p>It is no excuse for refusal to pay an assessment levied on an estate abutting on a street in Boston, for the expense of an alteration of the street under the St. of 1865, c. 159, that the owner of the estate has suffered damage by the unreasonable delay of the aldermen in making the alteration, or by the negligent and imperfect manner in which it was made.</p> <p>To an assessment levied on an estate abutting on a street in Boston, for the expense of an alteration of the street under the St. of 1865, c. 159, it cannot be objected by the owner of the estate, more than four years after the date of the taking of land for the alteration, that the alteration was not begun till a year after that date.</p> <p>An assessment under the St. of 1865, c. 159, on an estate abutting on a street in Boston, for the expense of altering the street, is a lien on the estate for a year from the completion of the apportionment of the assessment on the several abutters.</p> <p>Under the St. of 1865, c. 159, the mayor and aldermen of Boston may assess upon the estates abutting on a widened street the whole expense of widening, before they lay sidewalks therein.</p> <p>The St. of 1865, c. 159 concerning the laying out of a new street in Boston, was not repealed by the Sts. of 1866, c. 174, and 1868, 276, concerning the laying out of streets in Boston generally.</p> <p>If the assessment on an estate abutting on a street in Boston, levied by the mayor and aldermen, under the St. of 1865, c. 159, for the expense of altering the street, is too large by reason of including improper charges in the amount of expense to be apportioned, or of wrongly estimating or computing the amount, or of a disproportionate valuation of the estates subject to the assessment, the remedy is by petition for a jury, and not by bill in equity or certiorari.</p> <p>The St. of 1865, c. 1S9, provided that the whole expense of altering a street in Boston should be assessed on the owners of adjoining estates. Held, that the fact that the order laying the assessment purported to be for the payment of a portion of the expense furnished no ground for the owner of an adjoining estate to refuse payment of the amount-assessed on him.</p> <p>An assessment for the expense of altering a street in Boston, under the St. of 1865, c. 159, is not rendered invalid by the fact that no part of the expense was assessed on passageways leading from the altered street to estates not abutting thereon, nor by the fact that part of land abutting on the street and belonging to the city was not at all assessed, as forming a street, and another part of such land was assessed at a less rate than other estates abutting on the street.</p>

Bill oe interpleader filed by the administrator with the will annexed of George B. Swasey, praying that the devisees and legatees under the will might interplead as to the effect of a deficiency of the assets to satisfy the gifts to them. Hearing before Colt, J., who reported the case for the determination of the full court. The material facts, as they appeared from the report, were as follows: George B. Swasey made his will August 29, 1865.

Bill in equity filed June 18,1870, against the trustees under and executors of the will of William J. Walker, to compel them to pay over to the plaintiff a bequest to which he alleged he was entitled under the will.

<p>In replevin against an executor, to which the defence is that the defendant’s testator bought the goods from an agent of the plaintiff, the plaintiff is not, under the Gen. Sts. c, 131, § 14, a competent witness to show that the agent was not authorized to sell for him.</p> <p>If incompetent evidence was admitted at a trial, a new trial must be granted, altbongh since the former trial a statute has been passed under which the evidence would now be competent.</p>

<p>Replevin of household furniture. At the trial in the superior court, before Rockwell, J., it appeared that Harriet N. Cooper, the owner of the furniture, mortgaged it to the plaintiff by a deed which provided that the mortgaged property might remain in the possession of the mortgagor until default, but that if it, or any part of it, should be ’attached by any other creditor or creditors of the mortgagor, then it should be lawful for the mortgagee to take immediate possession of the whole thereof to his own use; that, while the mortgaged property was in the possession of the mortgagor, it was attached by the defendant, who was a constable of the city of Boston, on a writ against the mortgagor ; and that, before replevying it, the plaintiff made no demand on the defendant or attaching creditor, under the Gen. Sts. e. 123, §§ 62, 63, for the payment of the amount due on the mortgage. The judge ruled that notwithstanding the terms of the mortgage such a demand was necessary; the jury returned a verdict for the defendant and the plaintiff alleged exceptions.</p>

<p>Tort against the sheriff of Middlesex, for the negligence of one of his deputies.</p> <p>At the trial in the superior court, before Brigham, C. J., it appeared that on June 8, 1868, John H. Clark, a deputy of the defendant, attached certain barrels of flour, the property cf Jacob A. Barbey, a baker, on a writ against him in favor of the plaintiffs, and placed a keeper in charge thereof; that on June 21. through the negligence of the keeper, the flour was removed by Barbey and baked into bread; that Clark, in his return on the Writ, stated that the flour had been feloniously taken from him</p> <p>by Barbey ; that the writ was duly returned, and the action entered at July term 1868; and that judgment was rendered therein for the plaintiffs on February 9, 1869, and execution issued on March 25, 1869.</p> <p>The plaintiffs offered evidence to show that, within thirty days after the judgment was rendered, Clark gave them notice that Ike flour had been taken and used as aforesaid, and that he should be unable to levy an execution upon it; but the judge excluded the evidence as immaterial, ruled that the plaintiffs could not maintain their action, and directed a verdict for the defendant, which was returned, and the plaintiffs alleged exceptions.</p>

Contract on a recognizance entered into by Dennis O’SuHi. van as principal, and Daniel Keefe as surety, under the Gen. Sts. c. 124, § 10.

Trustee process. Writ dated February 25, 1870. The Narragansett Fire and Marine Insurance Company were on that day and on March 2, 1870, summoned thereon as trustees; and they appeared and made answer that they were a corporation established by the lays of the state of Rhode Island. The superior court ordered them to be discharged, and the plaintiff appealed.

<p>Contract against Robert C. Huntress and Frank Huntress. The first count of the declaration was on the following account annexed: “ Robert C. & Frank Huntress to William E. Little-field, Dr. October 1865. To agreed share of stock, fixtures and good will and effects of W. W. Jones & Company, consisting of Williair W. Jones and William E. Littlefield, sold to you on settlement and dissolution of said partnership, $1600.” The second count alleged that the defendants owed the plaintiff $1600 “ for goods, chattels, fixtures, good will and effects sold and delivered to the defendants by the plaintiff.”</p> <p>Trial in the superior court, before Rockwell, J., who, after a verdict for the plaintiff, allowed a bill of exceptions of which the material parts were as follows :</p> <p>“ For some time prior to October 23, 1865, the plaintiff and Jones were partners. On that day a bill of sale was executed, from W. W. Jones & Company to Frank Huntress, of the partnership effects, amounting, with a bonus of $500, to $1827.34. Negotiable notes of that date were given by both defendants, payable to and indorsed by W. W. J ones & Company. The sale by Jones, so far as appeared, was bond fide. The sale by the plaintiff was made to protect the property from attachment by his creditors. The payment to Jones was made by one of the notes, and Robert C. Huntress took Jones’s interest in the business.</p> <p>“ On February 12, 1866, the plaintiff and Frank Huntress signed an agreement of which the material parts were as follows: ‘ I, William E. Littlefield, on my part agree to sell all of my right, title and interest in the firm of Huntress & Company to Frank Huntress, for the sum of $320. And I agree to furnish for said Huntress $1000, without interest, for one year, commencing at date. And I, Frank Huntress, agree to pay William E. Littlefield the sum of $600 for one year’s labor of said Little-field and wife, and I agree to pay all necessary expenses of living, except clothing. And I, William E. Littlefield, agree to take one half of the stock in store, at the wholesale price, and pay $250 bonus on store, or to take the $1000 which he has had to use, at the end of one year; ’ and from the time the note for $1895, hereinafter mentioned, was given, the plaintiff ceased to have any interest in the partnership, and the defendants carried on the business as partners, The plaintiff testified that the $320 mentioned in the agreement were for his share of the profits from October to February.</p> <p>“ In February 1866, the notes given October 23, except the one Jones received, were cancelled, and a new note, signed by the defendants, made for $1895, dated back to October 23, 1865, and payable six months from its date, to the order of the plainti'”, was given for the plaintiff’s interest in the stock, excepting $295 ; that is, $1600 of it was for the exact amount of the plaintiff’s interest in the stock. This note was indorsed by the plaintiff to George A. Hanaford, a suit was brought upon it for the benefit of this plaintiff, and a verdict and judgment rendered for the defendants at October term 1868 of the superior court. The plaintiff introduced at the trial the record in that case,” from which it appeared that the answer set up that the note in suit did not represent a real transaction, and that it was agreed that the note was not valid and not to be paid, and also set up that in an arrangement subsequent to the giving of the note it was agreed, for a valid consideration, that it should thereafter be considered a nullity and be released and discharged, and that the note by neglect or omission of the parties was not taken up or destroyed.,</p> <p>“ The defendants testified that the note of $1895 was merely substituted for the cancelled notes, the sum being reduced because some of the property for which the notes of October 23 were given had been used; that the plaintiff’s interest was sold to Frank Huntress, February 12, 1866, for $1320, of which $320 were soon after paid; and that Robert C. Huntress did not purchase any part of the plaintiff’s interest. Both parties testified that they were witnesses at the trial of the suit brought by Hanaford, and testified substantially as they testified at this trial. The defendants requested Robert C. Huntress to state in his testimony to the jury the charge of the judge in the Hanaford suit, as to the law given by him to the jury. The plaintiff objected, and the presiding judge excluded the proposed testimony, and ruled that the defendants could not be permitted to introduce testimony as to the judge’s charge in the Hanaford suit.</p> <p>“ The defendants requested the judge to instruct the jury as follows:</p> <p>“ 1. That the record, judgment and proceedings in the suit of Hanaford against these defendants, were conclusive, or if not con-elusive, sufficient evidence that the bill of sale made in October 1865, and the notes made at that time, and particularly the note of $1895, which was sued in said suit, were of no validity as respects the interest of the plaintiff in the property described in the bill of sale.</p> <p>“ 2. That if the jury should be satisfied that the papers executed in October 1865, and the note of $1895, were not intended by the parties, as to the plaintiff’s interest in the property, to be operative, and that no delivery or possession of the plaintiff’s property was taken under the same, as testified by both parties, this action cannot be maintained upon that alleged sale.</p> <p>“ 3. That if a sale was made in October 1865, of the plaintiff’s interest in the partnership property of W. W. Jones & Company to one of these defendants, this action cannot be maintained against both defendants.</p> <p>“ 4. That the sale made on February 12,1866, by the plaintiff to Frank Huntress, and the fact that the plaintiff continued to that time to treat the property as bis own, said facts being testified to by both parties, were evidence that the pretended sale in October was invalid and inoperative, and that no valid sale was made till February 12, 1866.</p> <p>“ As to the first request, the judge stated to the jury that he could not rule that it was conclusive evidence or sufficient evidence. As to the second request, he stated he could not so instruct them. As to the third request, he instructed them that the plaintiff must make out his case, and that he must make it Out against both of them. As to the fourth request, he stated to the jury that it was not for him to say what the evidence was; but the evidence was for them. The judge also ruled that if the verdict in the Hanaford suit found that the note of $1895 was uayment for the plaintiff’s stock, the plaintiff could not recover.”</p>

Bill in equity against the National Bank of Redemption, the Bank of Mutual Redemption, William D. Forbes, Samuel B. Emery, William L. Emery, Moses W. Emery, Benjamin F. Emery, Benton Emery and Prescott Emery, The bill alleged that the plaintiff, the defendants Samuel B. Emery and William L. Emery, and Oliver Hill, were directors of the Sanford Bank, a corporation established in the state of Maine under the laws thereof; that in 1864 the Bank of Mutual Redemption, a…

Bill in equity, filed September 5,1867, by Eby Byers in behalf of himself and all other creditors of the Franklin Coal Company of Lykens Valley, a corporation organized and established in Boston under the Gen. Sts. e. 61, against said corporation and Edward C. Bates, Josiah Caldwell, Charles H. H. Cook, George S. Hillard, George C. Lord, Theodore Hatchett, Jacob Sleeper and Joseph H. Wightman, to charge the individual defendants, Bates as president, Cook as treasurer, and…

Tort, by the administratrix of the estate of Thomas Norton. The declaration alleged “ that the defendant, on or about August 19, 1869, was, and for a long time prior thereto had been, an apothecary in Boston, engaged in the selection, preparation, compounding and sale of drugs and medicines, and held himself out to the public as possessed of the requisite care, skill and knowledge to safely prosecute said business ; that, on said August 19, Charles S, Patten applied to the…

<p>Under the ordinary contract oí common camera for the transportation of a female passenger by steamship from Ireland to the United States, she is not entitled to have a feather-bed, not intended for use on the voyage, carried as her personal baggage.</p>

<p>Phe distance between two ferry slips on opposite sides of Boston harbor was from a quarter to three eighths of a mile, and a steam ferry boat left each slip for the other every five or six minutes, consuming nearly that time in the passage. Two men, one a sailor, and both of them used to manage sail boats and familiar with the harbor and the times and manner of running the ferry boats, were navigating a sail boat at right angles across the track of the ferry, about midway between the slips, one of them being forward and ths other aft, when a ferry boat ran into them and upset their boat. There was nothing between them and this ferry boat to obstruct their view of it during the whole of its approach from the slip, and the one aft saw it when it left the slip, but from that time till an instant before the collision neither of them saw it or looked towards it, and the one forward did not think of the fact that they were in the usual track of the ferry boats, although during part of the interval they were engaged in luffing to avoid collision with the other ferry boat, which both of them had seen approach from the other slip. Meld, in an action brought by the one forward against the proprietors of the ferry to recover for his injuries in the collision as caused by their negligence, that he and his companion were guilty of contributory negligence, and he could not recover.</p>

Tort. The declaration alleged “ that the defendant corporation is the owner of a certain railroad, extending from Middle-borough in Massachusetts to Newport in Rhode Island, and on July 11,1868, and for a long time previously, was accustomed to carry and convey in its cars and over its said road passengers for hire; that on said July 11 the plaintiff, having purchased of one of the defendants’ authorized agents a ticket entitling him to a passage in their cars over said road…

Tobt for assault and battery of the plaintiff while ejecting him from a car on the defendants’ railroad at Stamford in the state of Connecticut.

Tobt by a passenger on the steamboat Eastern Queen against her owners, for personal injuries sustained by him upon a passage on that… Held: are these : They are bound to select and employ a sufficient number of suitable and competent servants, to meet any exigency which they might, in the exercise of the greatest vigilance and care consistent with the nature and. extent of their business, have reasonably anticipated; they are bound to exercise the same degree of care, in…

<p>By maintaining a building with a roof constructed so that snow and ice collecting on it from natural causes will naturally and probably fall into the adjoining highway, the owner of the building is liable, without other proof of negligence, to a person injured by such a fall upon him while travelling on the highway with due care; and it is immaterial that all the rooms in the building are occupied by tenants, if he retains control of the roof.</p>

<p>If a landlord erects, without the tenant’s consent, on land included in the demise of a dwelling-house, a permanent structure which renders unfit for use two rooms that the tenant was using for kitchen and hed-room, the tenant may elect to treat it as an eviction, and give up the premises, and refuse to pay rent.</p>

<p>Replevin of the materials composing the parts of two unfinished steam-engines. Trial in the superior court, before Reed, J. who allowed the following bill of exceptions :</p> <p>“ James Tetlow contracted to build for the United States two iron tug-boats, the Palos and Leyden, and the steam-engines therefor. In the winter or spring of 1865 he contracted with tí e firm of Hepworth & Carr, machinists, for the construction of the steam-engines. The plaintiffs claimed title, among other ways based on the contract with the government and the contract with said firm, upon the ground that they had acquired a lien upon the engines, for work done by them, under the circumstances hereinafter stated.</p> <p>“ Evidence was in the case tending to show that, after Tetlow contracted with Hepworth & Carr for the construction of the engines, said firm went on building them at a workshop then occupied by them; that while they were so at work, on July 25, 1865, they transferred or mortgaged the engines', in their then condition, to the defendant, who loaned them money thereon, by instruments which make a part of the case; * that they delivered possession thereof to the defendant, in the different parts of a workshop in South Boston where the parts of the engines were lying ; that at the same time it was agreed by the defendant that Hepworth & Carr might go on with the work on the engines, and finish the same, under the contract with Tetlow, the engines being only partially completed; that the defendant appointed Seth A. Choate, a clerk of Hepworth & Carr, keeper for him of the engines, and delivered the parts thereof to him, in the same manner in which they were delivered to the defendant, none of the parts thereof, after either delivery, being removed from the shop of Hepworth & Carr, or from the places therein, in different parts of the shop, where they were, or from the hands of the workmen employed thereon; that the engines had just been removed from another shop, which Hepworth & Carr had previously occupied, and were there in the present premises, just occupied by them, and where they were engaged in finishing the work; that at some time during the negotiations it was stated by Hepworth & Carr, that, with the means borrowed of the defendant, they would be enabled to complete the work, and would then have a large amount of money coming to them from Tetlow; that Choate continued to act as keeper of the engines for the defendant in the shop of Hepworth & Carr, and to retain possession of them until they were taken away by replevin; that Hepworth & Carr with their men continued to work as theretofore on the engines, using substantially the greater part of the money borrowed of the defendant for that purpose, until they stopped by reason of the commencement of their proceedings in insolvency on September 6, 1865, when their property and rights of property in the shop were taken possession of by Benjamin F. Bayley, messenger in insolvency, who appointed Choate his keeper thereof, Choate, when consenting to act, not abandoning, but continuing his possession as heretofore stated, as keeper for this defendant and informing him thereof; that on September 8, 1865, Tetlow brought his replevin writ against Bayley for the engines, and Harum Merrill, a deputy sheriff, took the same thereon in the said shop of Hepworth & Carr, and delivered them there to Tet-low on September 11, and on that day, and up to September 14, he removed the same from the works of Hepworth & Carr to the works of the plaintiffs, with whom he had, before the removal, but after the failure, contracted orally that they should immediately go on and finish the engines, which were then about two thirds completed; that John Souther acted for the company with Tetlow in the removal of the engines, engaging the teams which removed them, he knowing at the time that Tetlow had taken them on replevin; that the plaintiffs, as soon as the parts of the engines began to arrive at their shop, began to work thereon; that, before service of the next replevin on September 14, they had been preparing to finish the work, making or getting patterns or plans, had placed or were arranging to place some of the bed-pieces, and had done some mechanical work on some of the pieces, but just what ones did not appear, that on September 14 the defendant brought the said writ of replevin for said engines against Tetlow and John Souther, the officer then taking possession of them and keeping the same in the plaintiffs’ works; and that, while the same, upon delivery to him by the sheriff, were being removed by the defendant as plaintiff in his replevin writ then pending, on September 25, the plaintiffs commenced this action and took the said engines.</p> <p>“ There was evidence from the defendant, tending to show that the contract of Tetlow with Hepworth & Carr was an oral one, and in substance only that they should build, and deliver the engines, when done, for a specified round sum, to be paid as the work progressed; that John Souther, at the time of the replevin in the said case of Wright against Tetlow and himself, as the president or agent or managing man of the plaintiffs, had the charge and custody, and, as the defendant contended, the possession, of the engines at their works, for the plaintiffs; but not that he had any different or other charge, custody or control, than he had of other property of the concern.</p> <p>“ The contract between Tetlow and the United States was put in by the plaintiffs against the defendant’s objection.</p> <p>“ The record of the case of Tetlow against Bayley, and that of the case of Wright against Tetlow and Souther, were put into the case, and were before the court, including the defendants’ bill of exceptions in the latter case, and the adjudication of the court thereon as reported in 99 Mass. 397; the former by the plaintiffs, and the latter by the defendant.</p> <p>“ John Souther was president of the plaintiffs’ corporation, the owner of a large majority of the stock, and the principal business man at the works. Evidence of the defendant tended to show that Souther was one of the sureties for Tetlow on his bond in his replevin suit, and that Tetlow mortgaged the engines at the time to said Souther to secure him because of said liability • ■ that the only other stockholders in the plaintiffs’ corporation at the time were, Daniel 1ST. Pickering, the treasurer, and George Souther, a brother of John, both of whom were engaged at the works, and Pickering was one of the appraisers in the replevin suit of said Tetlow; that the suit of Wright against Tetlow and Souther was defended, and the defendants appeared in said case and defended the suit. The defendant’s evidence by one Morse, which was not controverted, was, that in the trial of that case this defendant, Wright, set up and claimed title to the engines only under the said transfer or mortgage to him from Hepworth & Carr; that this was controverted in evidence, and was the issue submitted on his part there; that the1 defendants at the trial there set up and claimed the other said sources of title, the same as claimed here, except that the lien claimed here was not claimed or set up there; and that these other sources of title were made the subjects of evidence and adjudication therein. Souther testified that he never took said property, or claimed anything under the said mortgage, but in what he did acted solely for the plaintiffs in this suit.</p> <p>“ The plaintiffs offered evidence tending to show that, under the original contract between Hepworth & Carr and Tetlow, as to the building of the engines, the property passed to Tetlow from time to time, as the work was done and he made payments thereon; that the conveyance to this defendant was fraudulent and without consideration, and there was no sufficient delivery to him, or taking or retaining possession of them by him; that Choate did not say anything to Bayley as to his keeping for this defendant, but, if he was then in possession for this defendant, abandoned that possession, and consented to hold the engines as Bayley’s keeper in insolvency. But the judge declined to submit these questions to the jury; and before the arguments to the jury, the defendant’s counsel, being called upon by the judge to state his claim in matter of law, contended and asked the judge to rule in accordance with the following propositions of law:</p> <p>“ 4 The defendant claims, as to the case of Wright against Tet-low and Souther, 1. That upon the record, and the undisputed evidence of Morse as to the issues raised and submitted, the adjudication in that case is conclusive upon the questions of title decided, as between the parties and all privies of estate or interest. 2. That the plaintiffs are privies, as they claim title only under Tetlow. 3. That the plaintiffs are also bound by the adjudication upon the following assumptions of fact, if they are found: John Souther, one of the defendants therein, was acting not as a stranger but as the officer and agent of the plaintiffs’ corporation, in taking and holding the possession and control of the engines, when Wright replevied them from his hands arene of the defendants, if the suit was defended by him as the president and officer of the corporation, or by the corporation in fact.’</p> <p>“ ‘ The defendant claims, as to the case of Tetlow against Bayley, that the record of the default and judgment in that case is not evidence in this suit, and should be excluded on the following grounds: 1. The defendant’s not being a party to it, nor privy, and having had no opportunity or right to defend. 2. The default being subsequent to the other replevins in evidence. 3. Because (or if found) the engines were taken out of the defendant’s possession in a suit against a stranger, Bayley.’</p> <p>“ ‘ The defendant further claims as to replevin in Wright against Tetlow and Souther, 1. The plaintiff then, having taken the property on delivery from the officer, and being in possession by virtue of such process, had a title thereby, as against tin plaintiffs, during the pendency of that suit; and the Globe Workr could not legally take it out of his hands by a writ of replevin ii their favor. 2. That this is certainly so, if it is found as a fact that the engines had been taken possession of, and were being held in the custody and under the active control of John Souther, as the president and agent of the company, and in their behalf, when replevied from him. His possession would be that of the company, and a privity of estate or interest would exist between them, and he would not stand as a stranger to the company. 3. That, if it is urged that this principle invoked would have applied to the defendant in his replevin suit, the answer is, that this objection could only have been taken in defence of that suit, and the writ of Tetlow against Bayley having been put in evidence on the question of title, &c., the question is concluded. Besides this, Bayley was a stranger to the defendant in the one suit, while in the case of Wright against Tetlow and Souther, one of the defendants, and who withheld the property, stood as the representative of the company plaintiffs, and on their rights only.’</p> <p>“ The judge refused to so rule, and ruled that, after the mortgage of the engines by Hepworth & Carr to this defendant, Hep-worth & Carr had the right to redeem the property, and by virtue of said right, and of the agreement heretofore stated as to their continuing work thereon and finishing the same, they had the right to go on and finish them, and to employ other mechanics to work thereon, in such a manner as to give such workmen a lien thereon; that upon their failure this right passed to their assignee or creditors; that said judgment against Bayley was competent evidence, and had the effect to pass the rights and title of Hepworth. & Carr, or their creditors, to Tetlow, and to give Tetlow sufficient title to enable him to employ the plaintiffs upon the engines in such a manner as to entitle them to a lien; that the mortgage aforesaid from Tetlow to Souther had no effect to prevent the plaintiffs from acquiring the lien here set up; that the judgment in the case of Wright against Tetlow and Souther was not a bar to the maintaining of this suit, unless the plaintiffs in this case appeared in that suit, or authorized some person to appear therein and contest their claim; and that, if this was done, the judgment would be a bar; that, in order to constitute such an appearance, it was not sufficient that one or more corporators or officers were sued or appeared, but it must be shown that the plaintiffs, as a corporation, there appeared, or authorized some representatives in their behalf to appear and contest their right to these machines, and that this suit might be maintained, although at the time of its commencement this defendant was holding the engines as plaintiff in replevin in the suit of Wright against Tetlow and Souther then pending.</p> <p>“ The- defendant’s counsel, in contending against these rulings, claimed that, upon said evidence by paroi as to Hepworth & Carr continuing to work upon and their right to finish the engines, he had a right to go to the jury as to what the agreement and understanding was, and that by it the work was to be done by Hep-worth & Carr at their shop at their expense, and while the defendant held the possession of the engines there, and it was not that the engines might be taken out of his possession and elsewhere to be done by others. But the judge ruled that the construction of that agreement, inasmuch as the words were agreed by the parties to have been as hereinbefore stated, was a question of law for the court, and there was no question for the jury. Hereupon, at the suggestion of the judge and assented to by the counsel, upon said rulings and refusals being made and excepted to, the case was submitted to the jury upon the two questions : 1. Whether the plaintiffs had performed any labor upon the engines which entitled them to a lien. 2. Whether the plaintiffs appeared in the suit of Wright against Tetlow and Souther.</p> <p>“ The judge, refusing the said requests of the defendants, instructed the jury in substance according to the rulings stated above, and further, that the plaintiffs would have a lien, if they did, before the defendant replevied them on September 14, any mechanical work upon the engines, or any labor in relation to the engines which it was necessary to do in order to complete them ; that in the latter class would be included the labor and expense done and incurred, for instance, in placing in position a bed-piece or other heavy portion of the machinery, necessary to be done in order to complete the work; but not the teaming of the engines from the shop of Hepworth & Carr to the plaintiffs’ works; that it was of no consequence how much the amount of the work or expense was ; that if it was of the character described, it would give a lien on the whole engines, whatever it was.</p> <p>“ The judge further instructed the jury, that upon the other question the burden was upon the defendant to establish as a fact, and satisfy the jury, that the plaintiffs appeared in the case of Wright against Tetlow and Souther, and their right was con-' tested and adjudged in that case; that the ordinary way in which persons appear in a suit is by having their names entered upon the docket as appearing, coming into court personally, or by filing some paper, asking leave to come in, or by filing some written answer, or by some act of that nature, which appears on the records of the court; that in this case it is not contended that there was anything of the kind; that it appears and is agreed that the only claim of right which the corporation made was not set up or decided in that case; that, it being necessary to show that the corporation came into ‘ court, it is not enough nor approaching to be enough, to show that one of the corpora-tors, or one of its officers, did that, but the jury must be satisfied that the corporation was there, and appeared or authorized some person, who appeared representing them, to contest their right to these machines.</p> <p>“ The defendant’s counsel, at the close of the charge, said that he'wanted two points understood, and asked the judge to instruct the jury that it was not necessary either that the corporation appear on the record or that their claim of lien should have been presented in that case. The judge, in the presence of the jury, but without rising to address them again, replied, as to the first point, ‘ That is so, sir.’ Upon the second point he said, ‘ I have instructed them about that; I have instructed that it is necessary for them to find that they employ somebody as their representative, as the representative of the corporation, with authority to come in there and contest their right; ’ and further, in. reply, that it need not appear of record.</p> <p>“ The jury rendered a verdict for the plaintiffs; and the defendant excepted to the foregoing refusals, rulings and instructions on the part of the court.”</p>

<p>An absent foreigner may maintain a personal action of a transitory nature in the courts of this Commonwealth against a citizen of another of the United States, personally served here with process duly indorsed, whether the service is by summons or.arrest; and the jurisdiction is not avoided by the fact that the process is served on board a foreign mail vessel arriving from a foreign port and not yet moored in her dock.</p> <p>It is a lawful service of the original writ in a civil action, framed to attach the goods or estate of the defendant and for want thereof take his body, if the officer attaches a chip as the property of the defendant and gives him in hand a separate summons.</p>

<p>The issue of a warrant by the governor, under the Gen. Sts. c. 177, § 3, for the surrende of a fugitive from the justice of another state, upon the demand of the governor thereof, is conclusive that the demand is conformable to law and ought to be complied with, unless there is some defect apparent on the record.</p> <p>The certificate of the governor of another state, in demanding of the governor of this Commonwealth to surrender a fugitive from justice, that a copy, produced with the demand, of a complaint made on oath to a person styled a trial justice in said state, charging the fugitive with a crime, is authentic, sufficiently authenticates the capacity of the person as a magistrate authorized to receive the complaint, within both the U. S. St. of 1793, c. 7, § 1, and the Gen. Sts. c. 177, § 1.</p> <p>It is not necessary that the sworn evidence required by the Gen. Sts. c. 177, § 1, to accompany the demand of the governor of another state on the governor of this Commonwealth for the surrender of a fugitive from justice, shall be annexed to the demand.</p> <p>To constitute a fugitive from the justice of a state, within the meaning of the U. S. St. of 1793, c. 7, and the Gen. Sts. c. 177, it is sufficient that the person there charged with crime has gone beyond its jurisdiction, so that there has been no reasonable opportunity to prosecute him since the facts were known; and it is immaterial that he has gone to the place of his domicil.</p> <p>A warrant issued by the governor, under the Gen. Sts. c. 177, § 3, for the surrender of a fugitive from the justice of another state, which recites generally the requisition for the surrender, and that it is conformable to law and ought to be complied with, is sufficient without a further recital of the facts on which it is founded.</p>

<p>Petition.to enforce a mechanics’ lien under the Gen. Sts. c. 150, filed originally against Ferdinand S. Fessenden alone, with whom Frederick Clapp and Lemuel Clapp were afterwards joined as respondents.</p> <p>On June 12, 1867, the two Clapps, who were then owners of a lot of land in South Boston, entered into a written agreement with Fessenden for the sale by them and purchase by him of the land at a certain price per square foot, which expressed that on the same day he had paid to them $1000 in part payment of the purchase money, and in which they agreed to execute and deliver to him a warranty deed of the fee of the land within ten days after fie or his assigns should make demand therefor and tender the balance of the purchase money. At about the same time Fessenden stated to them that he intended to build upon the land; and on or about October 27, 1867, he employed Pierce S. Quirk to erect a building on it; and Quirk undertook to do so, and hired the petitioner, who was a carpenter, to do labor thereon. The labor for which the petitioner claimed a hen on the land and the building thus erected there was done under this hiring. He went to work on October 31, 1867, and labored continuously until January 18, 1868, when there was due to him for his labor the sum of $65.25 more than he had been able to collect from Quirk. On January 25, 1868, he filed his certificate of hen, under the statute, with the city clerk of Boston, having since January 18 made demand on Quirk and Fessenden for payment of the sum and been refused. In March 1868, the Clapps went into and over the building, which was then so nearly completed that the masons were plastering it; and they did not then, or at any other time, make any objection to its erection, nor did they ever give anybody any directions concerning it. On May 20,1868, they executed and dehvered to Fessenden a warranty deed of the land, in pursuance of the agreement of June 12, 1867.</p> <p>The parties stated the foregoing case for the determination of the superior court, which ordered judgment thereon for the respondents, and the petitioner appealed.</p>

Bill m EQUITY, sworn to February 5,1869, and filed February 6, 1869, by Sarah, wife of Bernard Milkman, against Thomas T. Ordway, George F. Ordway and William Cumston. Held: signed by them, and that she had supposed that tMs paper gave her a right to occupy the store during their lease, but she had found it was of no value.

<p>The overseers of the poor of a city have a right under the Gen. Sts. c. 70, §§ 1, 2, to remove children, who, with their mother, a widow, are in the poor-house, as paupers, to a charitable institution for the support of poor children, in another city within the Commonwealth, against the wishes of the mother; and the mother, after leaving the poorhouse, cannot maintain an action for their imprisonment against the president of the board of overseers and its agent, although they have refused to answer her inquiriei about the children, if it does not appear that she ever informed the overseers that she was able to support the children, or what was the purpose of her inquiries.</p> <p>The superintendent of a charitable corporation, to which a pauper child has been sent by the overseers of the poor, is not liable to an action for keeping her imprisoned against the wishes of her surviving parent, because he refuses to .tell the parent where she is; if it does not appear that she is in his custody.</p>

Contract to recover money expended by the plaintiffs for the support of William H. Maynard, a pauper, whose settlement was alleged to be with the defendants. At the trial in the superior court, before Rockwell, J., the jury returned a verdict for the plaintiffs, and the defendants alleged exceptions. The case is stated in the opinion.

Contbaot to recover for the support of Thomas Pierce as a pauper at a state almshouse, from December 5, 1868, to October 1, 1869.

Contbact for the price of meat sold and delivered. 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>Tort to recover for injuries received by the female plaintiff through falling into an excavation in Washington Street, a highway which the defendants were bo'ind to keep in repair. At the trial in this court, before (Jolt, J., the jury returned a verdict foi the plaintiffs, and the defendants alleged exceptions.</p> <p>It appeared from the bill of exceptions, that the defendants, having been authorized by statute to construct an aqueduct, entered into a written contract, in September 1868, through the chairman of their water committee, with Alexander Campbell, that Campbell should “ make all the excavations, and refill the same, that may be required for receiving the water pipes to be laid ” by the defendants, until December 1, 1868, to be paid for at so much a foot; that “ excavations or trenches ” should be “ dug in such streets and trenches as the water committee may from time to time direct; ” that Campbell should “ at his own expense guard and light the trenches by night for the protection of travellers and their property, and all ordinances of the town, relative to the safety and convenience of the inhabitants, shall be strictly complied with; ” and that Campbell should be “ liable for all damages that may come from his neglect in complying with these requirements.” It further appeared that Campbell, under this contract, dug the ditch into which Mrs. Brooks fell.</p> <p>There was evidence that the ditch was not open twenty-four hours before the accident, and that the water committee told Campbell to open the trench for the pipes through Washington Street; but no other evidence of notice to the defendants of the existence of any defect in the street. The defendants requested the judge to rule that the action could not be maintained, because they had no legal or sufficient notice of the defect; but the judge declined to do so, and ruled that “ under the circumstances disclosed the town would be liable without further notice, and whether the defect had existed twenty-four hours or not.”</p> <p>All the evidence touching the plaintiffs’ exercise of due care and the defendants’ negligence was set forth in the bill of exceptions. Mrs. Brooks testified that on Saturday, November 14, 1868, she and her husband were riding in a horse-car hi. Washington Street, about nine o’clock of a dark night; that her husband got out, and she followed; that she took one step, and in the act of taking the second fell into the ditch ; that she did not . oak to see her husband, or call him, and did not look to see where she was going; that she was in the exercise of due care; that she did not look down to the ground, but looked ahead; and that sha was very near-sighted, but did not have her glasses on, although she had them in her pocket. There was evidence tending to show that there were no lights at the opening in the ditch where she fell; and there was great conflict of testimony on the question whether there were any lights in the neighborhood, and if so, how near they were, and where they were, and whether they were sufficient to reach the spot where the accident happened. The defendants requested the judge to rule that there was no sufficient evidence that Mrs. Brooks was in the exercise of ordinary care, but the judge declined so to rule.</p> <p>“ To the evidence given by various witnesses for the plaintiff, that no lights were upon the ditch in Washington Street near the place of the accident, on Friday night, the defendants seasonably objected, on the ground that it was stated on the part of the plaintiff and testified by her, and the evidence tended to show, that the accident took place on Saturday night; but the judge overruled the objection, and admitted the evidence, on the ground that the witnesses might be mistaken as to the day of the week they were testifying about, or there might be a mistake as to the day of the week when the accident occurred; and said that he should leave it to the jury to determine whether the night spoken of by the witnesses as Friday night was not in fact the night of the accident.” It was afterwards admitted by both parties that the accident happened on Saturday, November 14; and the defendants asked the judge to instruct the jury that, as this was conceded, it was wholly immaterial, and they ought not to consider, whether there were lights on Friday night preceding or at any other time, at the place of the accident, and that “ if the judge only admitted the testimony as to whether there were lights on Friday night, on the ground that it was not then agreed that the accident happened on Saturday night, but on either Friday or Saturday, and it was uncertain, at the time the evidence was admitted, whether the accident happened on Friday or Saturday; and if the jury believed that ” certain witnesses “ swore positively that they knew it was on Friday and not on Saturday, and the jury believed it was Friday and not Saturday, as to the time when they testified as to the lights, then all such evidence as to Friday should be excluded and not regarded by the jury.” The judge declined to give this instruction, but instead thereof instructed the jury that “ the testimony of those witnesses who stated that there were no lights on the ditch at or near the place of the injury on Friday evening was to be excluded, unless the jury were satisfied, upon all the evidence in the case, that they were mistaken in the day of the week, and that in fact they were testifying of what they saw on the night of the accident.”</p>

Tort to recover for personal injuries alleged to have been occasioned to the female plaintiff by her falling off a bridge by which a highway in Charlestown crosses the defendants’ railroad, and which the defendants were bound to keep in repair, but had negligently failed to fence. At the trial in this court, before Colt, J., it appeared that the night of the accident was very dark, and there was no light of any kind in the neighborhood of the place of the accident.

<p>íf a horse which a traveller is driving on a highway throws his tail over the rein, and thereby frees himself for a considerable distance from control, so that the driver cannot prevent coming upon a defect in the way, upon which he could have prevented coming had he retained control, the town is not liable for an injury so caused.</p>

<p>Tort to recover for personal injuries received from the defendant’s cow.</p> <p>At the trial in the superior court, before Scudder, J., it appeared that the cow, while the defendant was driving her in a street in Lowell, tossed and injured the plaintiff.</p> <p>The judge instructed the jury that the burden of proof was on the plaintiff to show that she exercised due care, that the defendant did not exercise due care, that the cow was vicious, and that the defendant had notice of that fact. He further instructed them, that “ if the plaintiff had failed to prove that the cow was vicious and that the defendant had notice of that fact, still if they should find that the defendant took the cow through the populous and frequented streets of Lowell, without proper and reasonable care, restraint and custody over her, and by reason thereof she attacked and injured the plaintiff, while passing along one of said streets rightfully and using due care, he would be liable to the plaintiff for such injuries, without proof of any knowledge on the part of the defendant of the vicious habits of the cow.”</p> <p>The jury returned a verdict for the plaintiff, and in answer to questions put to them by the judge found specially “ that the defendant’s cow was vicious, and that the defendant had notice of it.” The defendant alleged exceptions.</p>

<p>In an action brought by a servant against his master to recover for personal injuries received by him in breaking and falling through a floor in his master’s shop, over which it was his duty to pass, it appeared that he knew that the floor was decayed aix ifaat there were holes in it; but it did not appear that he could have ascertained that the place where he broke through was dangerous, without examining parts of the floor not open to his inspection. Meld, that the court could not say that he was guilty of negligence; and that the question was for the jury.</p>

<p>la an action by the finder of lost property for expenses incurred in its preservation, evidence of what, when he found the property, he thought it was worth, after he has testified, without objection, to what it was worth, is immaterial.</p> <p>The owner of a boat, who has taken it from a person who found it adrift on tide water and brought it to shore, is liable to him for the necessary expenses of preserving the boat wnile it remained in his possession.</p>

<p>One who has procured the arrest and imprisonment of another on a lawful warrant e£ not liable to an action for assault and false imprisonment, although he obtained the warrant by misrepresentations.</p> <p>An action for the malicious prosecution of a criminal complaint against the plaintiff cannot be maintained, if there is no evidence of want of probable cause on the part oí the defendant, and the plaintiff was discharged on a nolle prosequi, although the nolle prosequi was entered by one having no authority to do so.</p>

Contract against Silas H. Jaques and Asa D. Clark, on a promissory note for $500, made by Jaques, payable to the order of Clark, and by him indorsed to the plaintiffs. Jaques, in his answer, denied the making of the note, and alleged that, if he did sign the note, his signature was procured by fraud, duress and threats of imprisonment, and further that it was procured under an agreement to suppress a criminal prosecution against him.

Tort for assault and battery and false imprisonment. At the trial in the superior court, before iScudder, J., it was admitted that the defendant, who was a deputy of the sheriff of Middlesex, arrested and imprisoned the plaintiff on a' writ in favor of Erastus C. Brown, issuing out of the superior, court, in an action of contract, with an affidavit and certificate annexed thereto, in accordance with the Gen. Sts. c. 124, § 1, purporting to authorize the arrest of the…

<p>In an action for causing the plaintiff to be arrested upon a writ in favor of the defendant, on which there was no affidavit sufficient to authorize an arrest, evidence is inadmissible that the claim for which the writ was issued was a promissory note of the plaintiff, purchased by the defendant from a third person.</p>

<p>Tout for entering a cigar shop in Lowell, and converting the stock therein, being the property of the plaintiff.</p> <p>At the trial at December term 1869 of the superior court, before Wilkinson, J., it appeared that the defendant, who was a deputy of the sheriff of Middlesex, attached the stock on July 10, 1868, on a writ against Peter Flood and as his property. The plaintiff offered evidence tending to show that on June 15, 1868, Peter Flood mortgaged to him the stock in the shop, and on July 6, 1868, gave him a bill of sale thereof, and that on this day he took possession of the shop and stock, and after that time paid the men employed therein.</p> <p>The defendant contended that the mortgage and sale were fraudulent and void as to the creditors of Peter Flood, and offered evidence tending to show “ that there was no change in the appearance of the shop, inside or outside, after the sale, up to the time of the trial, and that the business was carried on apparently in the same manner and by the same persons as before the sale; ” and he contended “ that the transaction was a secret trust for the benefit of Peter Flood, and to enable him to defraud, hinder and delay his creditors.”</p> <p>The plaintiff offered evidence to show that Peter Flood offered to sell the same stock, before July 6, 1868, to Asa Wright, who desired to purchase it and came to Boston to see if the plaintiff would agree that he might buy the stock of Peter Flood and carry on the business ; and also that the stock purchased for the shop from July 13 to August 30, 1869, was bought by the plaintiff and in the plaintiff’s name; but the judge ruled that the testimony was inadmissible.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort. Writ dated February 14,1868. The first count of the declaration alleged that while the plaintiffs were in occupation of a house in Brighton, and the male plaintiff was owner of certain furniture, including the only stove therein, the defendant, wrongfully and maliciously contriving and intending to injure the plaintiffs and knowing that the female plaintiff was quick with child, sued out against the male plaintiff a writ of replevin of the furniture, not having any right thereto, committed the writ to Benjamin Fobes, a constable of Brighton, and directed him forthwith to take the furniture from the house; and that Fobes went to the house, and, acting by virtue of the writ, and by procurement cf the defendant, removed, and the defendant caused to be removed, said furniture, and left the plaintiffs without any protection against the weather, although it was very cold, as the defendant knew, whereby the female plaintiff was greatly frightened and injured. The second count alleged that the defendant, under color of legal process and wrongfully contriving to injure the female plaintiff, and well knowing her to be quick with child, sent Benjamin Fobes, a constable of Brighton, to the plaintiffs’ house, intending to frighten the plaintiffs by the employment of an officer of the law, and wilfully intending thereby to remove from the house the furniture therein to the male plaintiff belonging, under colorable pretence that Fobes was so removing the same by virtue of a legal process; and that thereupon Fobes, by direction of the defendant and pretending to act as an officer of the law, removed the furniture, including the stove, from the house, whereby the female plaintiff was put in great fear, was left without fire or bed, and was greatly injured.</p> <p>At the trial at December term 1870 of the superior court, before Rockwell, J., the plaintiffs’ counsel, in opening the case, stated that he should prove substantially the following facts: The defendant on February 7, 1868, for the purpose of injuring the female plaintiff, caused the furniture, including the only stove, of the male plaintiff, and in which the defendant had no right or interest, to be removed from the house occupied by the plaintiffs, selecting as the time for removal one of the coldest days in winter. To shield himself from liability, the defendant had resort to a writ of replevin of the furniture, which he sued out against the male plaintiff. The ad damnum in the writ was $125 ; the value of the property was not stated in the writ; but the appraisers in their certificate appraised it at $72. The defendant placed the writ for service in the hands of a constable of Brighton, where the parties then resided, who on the same day served it by taking the articles therein described. The defendant brought the writ maliciously and without probable cause ; and brought it and selected the time for serving it, because he knew that the female plaintiff was pregnant and the taking of the property would leave her without the means of warmth, and he intended to leave her in suffering. The writ was not sued out in good faith, with the purpose of obtaining and holding the property, but was an abuse of the process of the court; and the action of replevin, which was pending at the beginning of the present suit, was tried at December term 1869 and resulted in a verdict for the plaintiff in this suit and an order for the return of the property.</p> <p>The plaintiffs’ counsel stated that he should contend that the constable was not authorized to serve the writ; but no other irregularity or abuse in its service was claimed, except as above set forth.</p> <p>The defendant requested the judge to rule that, if the plaintiffs should prove all that they offered to show, they could not maintain the action. The judge did so rule, and directed a verdict for the defendant. The plaintiffs alleged exceptions.</p>

Contract on an account annexed for goods sold and delivered. The answer denied each and every allegation of the declaration.

<p>Household furniture belonging to a woman became on her marriage in 1844 the property of her husband.</p> <p>A gift of household furniture by a husband to his wife is void. The fact that a wife is left by her husband without means of support does not authorize her to give away household furniture, which he has left in her possession, in payment of • necessary services to herself.</p> <p>One who removes furniture from a place where the owner left it to the house occupied by himself and his wife, and uses it in their housekeeping, is liable for its conversion, although he removed it as agent of his wife, and disclaims all right to it himself.</p> <p>A demand at the defendant’s house for household furniture therein, belonging to the plaintiff, and a refusal by the defendant’s wife to deliver it, are sufficient evidence of a conversion of it by the defendant.</p>

Two libels for divorce from bed and board; the first by the wife against the husband, for desertion ; the second by the husband against the wife, for cruel and abusive treatment.

<p>The wife of a mortgagor who has parted with his equity of redemption may be a purchaser under a power of sale in the mortgage, when the conveyance to her in execution of the power is made in the name of the mortgagee.</p> <p>A sale of mortgaged land under a power in the mortgage deed is not rendered invalid by the mortgagee’s failure to Ble within thirty days afterwards the copy of notice required by the Gen. Sts. c. 140, § 42.</p>

<p>Several owners of adjacent lands located a canal over the land, and agreed that each of them and the persons holding under them should have a right to pass upon the canal with vessels, and the same to fasten in one row to the landing-places on their respective premises, subject to removal so as always to keep a free passage through the canal. ¿7eldt that a person holding under one of these owners had no right to drive piles in the canal so as to render its navigation, and the approach to the premises of those holding unde? the other owners, more difficult.</p> <p>If a suit in equity, in which a demurrer to the bill on the ground that the plaintiff has an adequate remedy at law is joined to the answer, is heard and reserved for the determination of the full court on the pleadings and agreed facts, without objection made at the healing that the plaintiff’s remedy is at law, such objection cannot be taken at the argument before the full court, and must be deemed waived.</p>

Contract for the use and occupation of a dwelling-house in Charlestown by the defendant as a tenant at sufferance.

Contract to recover $20, the price of standing grass sold by the plaintiff to the defendant. Writ dated July 18, 1869.

Petition to this court for partition of the real estate of William Ramsdill, deceased. At the trial, before Colt, J., the fury returned a verdict for the petitioners, and the respondents alleged exceptions.. The facts are stated in the opinion.

<p>Parol evidence of declarations by a deputy sheriff, that a note and mortgage assigned to him were taken in satisfaction of an execution and held for the benefit of the execution creditor, is admissible to establish a trust in the note and mortgage against his executor in favor of the creditor.</p> <p>A deputy sheriff took a promissory note in satisfaction of an execution, and died. The execution creditor demanded the note from his executor, who did not give it up, but collected it. Held, that the execution creditor could maintain an action against the executor for the amount of the note; and that the statute of limitations did not begin to run till the demand.</p>

Contract against Thomas B. Glover and George W. Wilson on the following instrument, dated February 10, 1869, signed by them, and assigned in writing to the plaintiff, under date of February 20, 1869, by the Charles W. Stinson therein named: “We, the undersigned, do sell to Charles W. Stinson the following named property, to wit, the same lot of blacksmith’s tools we bought of him; also, all the blacksmith’s tools now owned by us in our respective shops; for the sum of $200,…

<p>An agreement giving a right to remove a building which is put upon the land of another may be shown from the subsequent dealings of the parties.</p> <p>The owner and the mortgagee of land both recognized an agreement giving a tenant the right to remove a building therefrom as his personal property. The owner became bankrupt, and his assignees sold the land to A., who afterwards redeemed the land from the mortgage. A., before the sale to him, knew that the tenant claimed the building as his personal property. Beld, that A. was bound by the effect of the recognized agreement, although the assignees told him that the tenant’s claim was unfounded.</p>

<p>In an action between a manufacturer of window frames and a dealer in them, on an issue whether the former should pay freight on frames sold and delivered by him to the latter, evidence of a usage between manufacturers and dealers, in the place where the goods were made and sold, that the manufacturers should pay the freight, is admissible.</p>

<p>At the trial of an action for the price of lumber alleged to have been sold by the plaintiff to the defendant, the plaintiff’s evidence tended to prove that the defendant, knowing that a lot of lumber, belonging to the plaintiff and consisting mainly of oak, contained a little ash, agreed to buy the lot at a certain rate per foot. The defendant denied this; contended that he negotiated with the plaintiff for the oak in the lot, but never completed the bargain, and never talked of buying any lumber except the oak; and offered evidence to prove that the lot contained other inferior lumber, besides the ash, and how much of it, and also what the market price of oak was. Meld, that the evidence was admissible, as tending to show the improbability of the defendant’s having made the contract alleged by the plaintiff.</p> <p>A declaration alleging a sale of oak lumber is not supported by proof of a sale of a lot of lumber of different kinds of wood under a contract that it should be delivered and received as oak.</p>

Contract for the price of logs. Writ dated June 1, 1870. At the trial in the superior court, before Saudder, J., it appeared that in the spring of 1868 a number of logs belonging to the plaintiff, .which he was sending from New Hampshire down the Pemigewassett and Merrimack rivers to his saw-mill at Lowell, arrived at a boom, which the defendant had constructed partly across the former river at Plymouth in New Hampshire, and some of them became mingled with the defendant’s…

<p>Contract for breach of an agreement to sell and deliver coal. At the trial in this court, before Oolt, J., the plaintiff testified that after the making of the alleged agreement, and its breach by the defendants, he was adjudged a bankrupt; “ that he made the agreement while acting as agent of Alonzo V. Lynde, under authority from him, and made it as agent; that he owed Lynde a large sum of money, and had transferred his coal business to him as security for the debt; that it was agreed between them, that Lynde was to furnish the capital, and was to receive all the profits of the business, except enough to support the plaintiff and his family, until the debt should be paid; that after the debt was paid the property was to be his, and the profits of the business; and that he had no property in the coal, or interest other than as stated, and his own money was not invested in the business; but that he was to have his living out of the business until the debt was paid."</p> <p>The defendants objected that the plaintiff could not maintain the action, and the judge reported the case for the determination of the full court, if the court should be of opinion that the plaintiff could not maintain the action, judgment to be for the defendants, otherwise the case to stand for trial.</p>

Contract on a promissory note signed by the defendant. After entry of the action in the superior court, the plaintiff filed interrogatories to the defendant, and took the deposition of Cyrus T. Taylor, and afterwards was allowed to substitute for his declaration another declaration on the same note.

<p>Contract for breach of promise of marriage. The declaration did not allege special damage.</p> <p>At the trial in the superior court, before Brigham, C. J., evidence was introduced tending to show that the defendant was a married man at the time of the promise. The defendant requested the judge to rule that, if the defendant was married at the time of the promise, the action could not be maintained; but he declined so to rule, and ruled that the action could be maintained, although the defendant was married at the time of the promise, if the plaintiff was ignorant thereof.</p> <p>The plaintiff offered evidence tending to show that, induced by the defendant’s promise of marriage, she submitted to sexual intercourse with him, and that he got her with child, of which she had been delivered and which was now living. The defendant objected to the admission of this evidence ; but the judge admitted it, as affecting the measure of damages.</p> <p>In submitting the ease to the jury, the judge instructed them as follows:</p> <p>“ Promises of marriage, not often being made in the presen ;e of witnesses or in writing, have usually, in cases of this nature, been proved by circumstantial evidence. As the promise of the plaintiff is the consideration of the promise of the defendant, both must be proved in order to support the action; and each promise may be established by the same species of proof; and the conduct and deportment, as well as the language of the parties, towards each other, may furnish satisfactory evidence of the fact that a mutual promise of marriage has been made between them, that is, a promise of marriage by one and a corresponding promise of marriage by the other.</p> <p>“ In determining what sum of money would reasonably indemnify and compensate the plaintiff for a breach of the defendant’s contract with her, the jury may consider, in addition to her expenditure in preparing, the disappointment of her reasonable expectations, and inquire what she has lost by her disappointment, and for that purpose consider among other things what would be the money value or worldly advantage (separate from considerations of sentiment and affection) of a marriage which would give her a permanent home, and the advantage of such a domestic establishment as would be suitable to her as the wife of a person of the defendant’s estate and station in life. The jury ought also to consider whether her affections were in fact implicated, and whether she had become attached to the defendant, and if such was the fact, the wound and injury to her affections would be an additional element in the computation of her damage ; and also to consider whatever mortification, pain or distress of mind she suffered, resulting from the discovery of the defendant’s inability to marry, by reason of his living wife, or his refusal to marry her within a reasonable time after the contract was made between them, if he was not disabled from doing so by reason of a living wife. And if, while the parties were mutually promised in marriage, and intending and expecting marriage in a short time, the defendant solicited, in consideration of such intention and expectation, and the plaintiff permitted, in consideration of such expectation and intention, sexual intercourse with her, whereby she became pregnant with a child, which was born alive, and is now living, these facts may be considered by the jury in computing damages, so far as they tend to aggravate and increase the disappointment, mortification, pain or distress of mind, which she has suffered by reason of the defendant’s breach of contract.”</p> <p>A verdict for the plaintiff was returned September 23,1870, and the defendant alleged exceptions; on September 27 the plaintiff moved for judgment; on October 1 the judge extended the time for filing the exceptions till October 3, on which day they were filed, and on the same day, a few hours afterwards, the defendant died. The plaintiff then asked for judgment on her motion, and contended that the defendant’s exceptions ought not to be allowed, but on October 14 the attorney who appeared for the defendant at the trial presented the exceptions for allowance, and on October 17 the judge allowed them. The defendant died intestate, and no steps towards taking out administration on his estate were had before the filing [the allowance ?] of the exceptions. To the refusal of the judge to grant her motion, and to his allowance of the defendant’s exceptions, the plaintiff alleged exceptions.</p>

Tort for the conversion of furniture. At the trial in the superior court, before Seudder, J., without a jury, the judge found that the plaintiffs mortgaged certain stock and materials to the defendants by a deed entitling the defendants to immediate possession , that the defendants gave the plaintiffs oral permission to manufacture the stock and materials into furniture and sell the furniture, on condition that from time to time, as the sales were made, a portion of the…

<p>Ill an action under the Gen. Sts. c. 58, § 48, against nine directors of a mutual fire insurance company, to enforce their personal liability for the amount of an unsatisfied execution against the company, to which action there is a joint single defence on which the defendants prevail, they are entitled to only one set of costs, although they severed in * "heir pleadings.</p>

Tort to recover damages for diverting water from its natural course and discharging it upon the plaintiff’s land.

<p>Bill in equity filed April 13, 1870, to redeem land in Pepperell from a mortgage. At the hearing, before Ames, J., by whom the case was reserved for the determination of the full court, the following facts appeared:</p> <p>Samuel A. Jewett, being the owner of the land, gave the mortgage to Charles F. Parker, and in December 1858 died intestate. The defendant, who was his widow, was duly appointed administratrix and gave bond February 1,1859. She gave notice of her appointment as required by the Gen. Sts. o. 97, § 1, entered upon the administration of the estate, and on January 8,1861, represented it as insolvent. No suits were begun by creditors of the intestate against the administratrix within two years after her giving bond. The commissioners of insolvency were appointed in August 1861, and they filed their return in February 1863, but no action was ever had thereon by the probate court.</p> <p>In September 1861 the defendant married Henry A. Parker, whereby her office of administratrix became vacant; in 1862 dower was assigned to her in part of the mortgaged premises and in July 1865 the mortgagee assigned the mortgage to her.</p> <p>On November 12, 1862, Charles F. Parker was appointed administrator de honis non, and resigned November 11, 1863. On November 24, 1863, Clarence Jewett was appointed in his stead. At or soon after this appointment, a suit was pending against Luther Tarbell upon a bond in which Samuel A. Jewett was principal and himself surety, and in April 1864 judgment was given against Luther Tarbell, which he paid. The amount of the judgment was greater than the amount of personal property then in the hands of Clarence Jewett as administrator, and there were other debts of the intestate still unpaid. Upon a petition filed in June 1864, the probate court granted a license to Clarence Jewett to sell the real estate of the intestate for the payment of debts, and in September 1864 he sold the equity of redemption of the mortgaged premises to the plaintiff.</p>

Bill in equity against the city of Charlestown and its treasurer, to restrain a sale of the plaintiff’s land in Charlestown for nonpayment of an assessment, laid thereon by the city council for the expenses of laying out and constructing Park Street in that city.

<p>Under a statute authorizing the mayor and aldermen to construct sidewalks in any street of a city, and assess the expense in just proportion upon the abutters, they have no right to join in a single assessment the expense of constructing sidewalks in different streets.</p>

Petition under the St. of 1870, o. 327,* by William L. Burt, as the agent employed by the United States under said statute, to the superior court for this county; describing the second estate mentioned in § 1, being an estate owned by the Merchants’ Insurance Company, fronting on Water Street in Boston ; alleging that “ the said Merchants’ Insurance Company consented and agreed to sell said parcel of land to said United States, and said United States consented and agreed to…

<p>An award absolute in. its terms, upon a submission under the Gen. Sts. c. 147, without restriction or condition, is not subject to revision for the reason that it states the facts fo md by the arbitrator, the propositions of law urged by the parties, and the arbitrator’s conclusions of the law applicable to the facts, unless it appears that the statement is made for the purpose of such a revision.</p>

<p>The constitution of an association of milk dealers was signed by all the members, and provided that all disputes between them concerning their milk routes should be submitted to a permanent board of arbitrators, chosen by the association, whose award, “being made and reported to the parties in writing, shall be final.” In acting upon an award, made by the persons constituting the board, in such a dispute, the judge ruled that the award was invalid as an award of the board, if it was not in writing; but that, if there was a voluntary reference of the matter to those persons, as arbitrators chosen by the parties without regard to their capacity as a committee of the association, and they duly heard the parties, and made the award, and gave the parties notice of it, it would be binding; and he refused a request of the plaintiff to instruct them further, that if the matter was referred to these persons it was of no consequence whether they were a committee or not. Held, that the plaintiff had no ground of exception.</p>

<p>A and B. agreed in writing that B. should fill a lot of land in a city with gravel in a man® ner satisfactoiy to A., and A. should pay him therefor a sum proportionate to the amount of filling, which was “to he measured on the ground by the city engineer, whose measurements shall be conclusive upon the parties.” The nature of the soil was such that, by reason of the sinking of the gravel into it, measurements of the filling on the ground were necessarily matters of estimate and judgment, and not of mere computation. The work was done to A.’s satisfaction; and the city engineer made two successive statements of the amount of the filling, the first according to measurements by an assistant, and the second according to those measurements as revised on the ground by himself and certified to be correct. Held, in an action in which B. sought to recover from A. the price of the filling calculated according to the certificate, (1) that the engineer might revise and correct his statement within reasonable limits as to time, if he could do so without prejudice to the rights of either party; (2) that the fact that the basis of his certificate was measurements made by an assistant, not in his presence, afforded no ground of avoiding it, if the nature of the duty, and the city engineer’s known and usual mode of executing such duties officially, required the employment of assistants; (3) that his certificate could not be impeached for mere errors of judgment on his part, but only for fraud or such mistake as showed that he failed to exercise his judgment on the subject matter; (4) that it was competent for A. to waive any irregularity in the mere details of the mode in which the engineer reached his conclusions; and (5) that the efficacy of such a waiver was not affected by the fact that A. entered into the agreement as an executive officer, for the purpose of executing an order of court to abate a nuisance on the land, and the landowner was ultimately liable for the legitimate expense of the abatement. ffeld, also, that it was not competent for A. to prove what was said by the city engineer to a third person, after the first and before the second statement, “ as to the way in which his statement was made, stating that he did not himself make the estimates ”; B. not having put in any part of the conversation, and the city engineer not having been examined as a witness.</p>

Contbagt. The declaration alleged that the plaintiffs, who were partners under the name of Flint & Hall, entered into a written agreement with the defendant, on March 4,1868, at Boston, where both parties were merchants ; and set forth the agreement, of which the material stipulations were as follows : “ Gibson shall deliver on or before April 24,1868, to Flint & Hall, a certain vessel formerly the United States double-ender gunboat Osceola, fitted for sea for a voyage hence…

<p>Contract on a time policy of insurance issued by the defendants to the plaintiff upon the ship Charles Cooper, and containing a clause that “ if any dispute shall arise, relating to a loss on this policy, it shall be submitted to the judgment and determination of arbitrators mutually chosen, whose award in writing shall be conclusive and binding on all parties.”</p> <p>The case was submitted to the judgment of the court on a statement of facts, with authority to draw therefrom such inferenees as a jury might draw, in which it was agreed that there was a reference of the plaintiff’s claim to an arbitrator, pursuant to the terms of the policy; and the facts concerning this reference were stated substantially as follows:</p> <p>The submission to the arbitrator provided that he should “ collect such evidence in the premises as he may deem necessary,” in addition'to such documentary evidence as was appended to the submission; and that his decision should be final. It was signed in behalf of the defendants, by a duly authorized agent; and in behalf of the plaintiff, by Richard S. Haven, as his attorney, under an express written power. And the documentary evidence included a statement of the plaintiff’s claim, prepared by Haven as an average adjuster, and various vouchers, together with the surveyor’s reports, and the protest.</p> <p>At the time of the issue of the policy, and of the loss, the ship was owned by six other persons with the plaintiff, in the' proportion of by him and by them; and two of them, who were joint owners of had given a bond for the sale of their interest to him, before the policy was issued. The plaintiff effected the policy “ for himself for -£•§, and for the other owners in proportion to their respective interests.”</p> <p>The plaintiff had no authority from the other owners to submit the claim to arbitration, “ except the authority derived from the facts, that he was, at the time when the insurance was effected, and had been for five or six years previously, the ship’s husband; that he had, during all said five or six years, kept the ship insured for himself and the other owners jointly, by policies like the one in suit, for whom it might concern; that he owned or of the ship ; and that he effected the insurance, under the policy now in suit, for himself and the other owners jointly, for the benefit of whom it might concern.”</p> <p>It was further agreed, that the plaintiff was informed who the arbitrator chosen was; that he never saw the agreement of reference ; that the terms of the reference, or the mode of proceeding by the arbitrator, were not a subject of which he thought, or about which anything was said, he leaving the matter mainly in the hands of Haven; and that he did not know the terms of the reference, or the mode of proceeding by the arbitrator, except so far as may appear or be inferred from the fact that he understood that the adjustment made by Haven, and the vouchers and proofs brought home by the master, would be laid before the arbitrator, and if other evidence was wanted the arbitrator would notify Haven and he would furnish it; that he expressed to Haven and the arbitrator his impatience at the delay of the arbitrator in making, his decision, and that he wrote the arbitrator a letter, which was appended to the statement of facts, and which discussed and made statements concerning certain features of the claim, and expressed the writer’s satisfaction with the selection of the arbitrator, and his willingness “ to furnish any more facts in regard to the case ” which the arbitrator might desire.</p> <p>If the court should be of opinion that the award made under this submission was a bar to this action, then the plaintiff was to become nonsuit; otherwise, the case to stand for trial.</p>

<p>Contract on a policy of the defendants insuring the plaintiff in the sum of $3000 “ on freight of the barque Gem of the Sea, at and from Boston to Charleston, South Carolina, at and thence to a port on the north side of Cuba, (with the liberty of a second port thereon,) and at and thence to port of discharge in the United States north of Hatteras,” for a premium of “ four and a half per cent., to add a quarter of one per cent, if second port in Cuba is used.”</p> <p>The barque sailed from Boston to Charleston, and from Charleston to Havana, which is a port on the north side of Cuba. At Havana she was chartered to sail to Cienfuegos, a port on the south side of Cuba; and she sailed from Havana to Cienfuegos, took in cargo.there, and sailed thence for Boston, on which final passage the freight was totally lost by a peril covered by the policy, if the policy was then in force.</p> <p>These facts were agreed, and the sole question was, whether there was a departure which avoided the policy before the loss.</p>

<p>An oral promise of the mortgagee of part of a vessel, made to persons who have furnished her with supplies for which they have no lien on her, to pay the debt if they will not attach the interest of the other part owners, is within the statute of frauds.</p>

Coktbact upon an account annexed, charging the defendant with “ commissions for services in sale of ship Highlander, one and one quarter per cent, on $100,000.” Answer, a general denial. Trial in the superior court, before Pitman, J., without a jury, who made a report thereof which referred to the pleadings and continued thus: “ The facts I find as follows: The plaintiffs were a firm of ship-brokers in the city of New York, in 1869.

<p>One to whom the owner of a vessel has bargained and sold, but not conveyed, a part of her, and who has partly paid for it, under an agreement that he shall be employed as her master, and a portion of his wages, and of his interest as part owner in her earnings, be applied to pay the balance, may maintain an action at law against such owner for wrongfully discharging him from the employment; although there were others equitably interested in the vessel at the time of the agreement.</p>

<p>A debtor sent to Ms creditor a sum in gold to be sold as a commodity and the proceeds applied in part payment of the debt, but limited the sale to a rate per dollar which exceeded the market value of gold then or ever since. After holding the gold two years without further instructions, the creditor appropriated it to his own use and credited the debtor with its market value at the time of its appropriation. Held, that he was not bound to credit the debtor with its market value when he received it.</p>

CoHTBAGT on a promissory note dated February 16,1867, and payable on demand.

<p>Replevin of a lot of buttons, braid, and other goods of like description, by William Mafflyn, William Faxon and James C. Elms, formerly partners with Thomas M. Hathaway under the firm of Mafflyn & Hathaway, against said Hathaway, Joseph B, R. Pettee, and Vamum H. Holt, partners under the firm of Hath away, Pettee & Holt. Hathaway died, pending the suit. The ease was referred to an auditor. At the trial in the superior court the auditor’s report was put in evidence ; and Pitman, J., directed a verdict for the defendants, and made a report of the evidence and his rulings, the substance of which appears in the opinion.</p>

<p>In an action on a promissory nota, by the payee against the maker, the defendant admitted the making of the note, but set up, in defence, that he made a contract with the plaintiff to do work and take the note in part payment, and did work accordingly to an amount greater than the note. Meld, that this defence would not avail against undisputed evidence that he had sued the plaintiff for the work, and recovered judgment without any allowance on account of the note.</p>

Contract. After the decision reported 104 Mass. 360, the case was recommitted to the auditor, who made the following report, to which he annexed an account computed as therein stated: “ The plaintiffs were pawnbrokers, and for several years were lessees of a shop numbered 108 on Sudbury Street in Boston; and the defendant, who was engaged in the gift-enterprise business, as it is called, with their permission occupied a part of the shop.

<p>Replevin of 115 barrels of flour from a warehouseman. Writ dated December 22, 1868. The answer denied any property oi right of possession, on the part of the plaintiffs, in or to the flour, aid alleged that it was property of the firm of George W. Warren & Company, and was in the possession oí the defendant as their bailee at the time of the replevin.</p> <p>At the trial in the superior court, before Lord, J., the plain • tiffs’ evidence tended to show that on December 11,1868, they agreed with William H. Wallace to sell him the flour, which they owned and were keeping stored in the defendant’s warehouse; that the brands of the flour, the number of barrels, and the price per barrel, were all included in the agreement, but nothing was said about the time of payment; that on the same day the plaintiffs gave Wallace a written order on the defendant for the delivery of the flour to W allace, and on December 21 presented to Wallace a bill of parcels for the agreed price of the flour, and demanded payment; but that Wallace did not comply with the demand; that the flour had never since been paid for; ánd that on December 22 the plaintiffs informed the defendant that it had not been paid for, and demanded it of him and on his refusal to deliver it to them took it on the writ in this action.</p> <p>The plaintiffs also introduced evidence tending to show “ that, by the usage of the flour trade, if nothing is said about time of payment, when a contract of sale is made, the sale is considered to be made for cash, but the goods are delivered without exacting payment, and ten days are allowed the purchaser to examine the goods, the seller having the right to demand payment at any time within the ten days.”</p> <p>The defendant’s evidence tended to show that on December 11, 1868, upon receiving the plaintiffs’ order of that date, above referred to, for the delivery of the flour to Wallace, the defendant made an entry on his books, transferring the flour to Wallace’s account; that on December 17 he received a written order of that date, from Wallace, to deliver the flour to the firm of George W. Warren & Company, and accordingly transferred it on his books from the account of Wallace to the account of that firm, and gave the firm a certificate of the same date, that he held it subject to their order; and that Wallace on that date had pledged this and other lots of flour to that firm as collateral security for a loan of $5000 from them to him, and had given them a bill of sale of the lots so pledged.</p> <p>The defendant also introduced evidence tending to show “ that by the usage of the flour trade, when a contract of sale is made and nothing is said about the time of payment, the purchaser has a credit of ten days, and payment cannot be demanded until the tenth day, and that it was customary, when goods were bought without anything being said about the time of payment, to resell them within the ten days, and before paying for them.”</p> <p>So much of this evidence as related to the defendant’s transactions with George W. Warren & Company, and their transactions with the defendant, was admitted under the plaintiffs’ objection; and after its admission the plaintiffs contended that the transfer of the flour to that firm was fraudulent.</p> <p>The judge charged the jury as follows : “ There is no difference at all between the parties as to what transpired at the time of the making of the contract. It is agreed what took place was, that Wallace should have 115 barrels of flour, of the brand designated, at $7 per barrel, and an order was given to him for it, which he took and presented to the warehouseman, and the flour was transferred to his name. So far, the parties exactly agree. If this was all, if nothing more entered into the contract between the parties, the property in the flour passed to Wallace, and he had the right to transfer it. The plaintiffs contend that there is a usage of trade, that, when flour is sold and delivered, and nothing is said between the parties upon the question of payment, it is understood that the sale is for cash, and that the property does not pass until payment. It is incumbent upon the plaintiffs to establish this usage. If they have done so, then no property passed by the sale, it being agreed that payment has not been made; and the plaintiffs are entitled to recover.</p> <p>“ To determine this question, it is necessary to understand what a usage is, which thus affects a contract. It does not show a usage of trade, to show that many persons, or a majority of persons, engaged in the business, practise in a particular mode. To constitute a usage of trade so as to have it affect the contract, the practice must be universal. If it is sometimes practised and sometimes not, although it may be more frequently done than not done, that does not make what in law is a usage, which en ters into and makes part of a contract. It must be the mode in which persons in that trade do their business. The usage must also be uniform. If different persons in the trade practise differently, it is not a usage, even though more persons practise one way than do another. The witnesses for the respective parties use different phraseology; the plaintiffs’ witnesses say that the sale is for cash in ten days, if nothing is said about payment; the defendant’s witnesses say that there is a credit of ten days, if nothing is said about payment. This difference of expression as to cash or credit is not the material thing, for both parties agree that payment is to be made in ten days. The real question is, Does the property pass before payment ? And is there such a usage shown, that by the general consent of the trade the property does not pass till payment, notwithstanding the delivery ? Every witness upon each side testified that it is the practice among purchasers to sell again before the ten days have expired ; and this fact, if proved, has a bearing upon the question whether such a usage exists. The usage which the plaintiffs are to establish is a usage that the property is understood not to pass by delivery until payment is made. If they have established this usage, they are entitled to recover; otherwise, not; and it is to be established upon a fair preponderance of the evidence.”</p> <p>The plaintiffs afterwards requested the judge to rule “ that, if the jury should find no usage proved, the law implied, inasmuch as nothing was said about the time of payment, that the sale was for cash; and that a cash sale was a conditional sale; and that the question was, whether the plaintiffs had waived the condition by the delivery of the goods.” But the judge declined so to rule, and ruled “ that such a sale was a cash sale, but by delivery the property passed unless something was shown to prevent it.” The plaintiffs then prayed for the following instructions: “ 1. A sale for cash is a conditional sale, and if the cash is not paid in a reasonable time after the sale the purchaser takes no title thereby to the goods sold. 2. What is a reasonable time, within which the cash must be paid to satisfy the condition, is a question of usage in trade. 3. The delivery of the flour to Wallace did not waive the condition, unless the plaintiffs at the time intended to waive the condition, and make the delivery for the purpose of passing the absolute title to the flour. 4. If the jury find that at the time of the sale the plaintiffs understood that they were selling for cash, and find that Wallace understood that he was buying upon credit, then the minds of the parties never met, and there was no valid contract, and no sale, and the verdict must be for the plaintiffs.”</p> <p>As to the first two of these prayers, the judge ruled “ that a cash sale might or might not be a conditional sale; that it was not necessarily in law either a conditional or an unconditional sale; and that it was for the jury to determine upon the evidence whether the sale was conditional or not.”</p> <p>As to the third and fourth prayers, he said “ that he understood the plaintiffs to claim that by usage the property did not pass, notwithstanding the delivery, when nothing is said on the subject of payment or delivery ; and if they had established the usage the property did not pass; but unless they had, there was nothing to take the case from the common one of sale and delivery of a personal chattel; that in this case the mere contract, not being in writing, was of nó validity without delivery, the price being more than fifty dollars; and that the question of misunderstanding of the parties as to the terms of the contract did not seem to arise, their difference being as to the effect of the transaction ; but if the jury said that their minds never met upon the terms of the contract, then the plaintiffs could recover,- if the defendant was not a bond fide purchaser for value; but if he was, then the delivery as to him would vest the title in Wallace, if the plaintiffs delivered to him the indicia of title which accompany the sale and delivery of chattels.”</p> <p>The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions.</p>

<p>Contract. The declaration contained two counts, the first on an account annexed, the second for goods sold and referring to the account as a bill of particulars.</p> <p>At the trial in the superior court, before Reed, J., John S. Manny, one of the plaintiffs, testified to these facts : The plaintiffs, as assignees of the Inventors’ Manufacturers’ Company, a bankrupt corporation, in July 1869 took possession of a stock of goods in a store in Boston, where the corporation had been doing business. The stock was a large one, and included “ a lot of cutlery, plated ware, ladies’ travelling-bags, pocket-books, pencils and fancy goods.” The defendant made a proposal “ to buy for cash all the goods in the store of the description named, at a certain discount from the manufacturers’ list of prices,” and the plaintiffs accepted the offer. All the goods of that description were then taken from the shelves and drawers where they had been kept, and put by themselves, ready for delivery; and a schedule was made, showing, after deducting the agreed rate of discount, the amount of $4103.78, as their price according to the terms of the sale. After they had been thus set apart and scheduled, the defendant stated that he had not the money to pay for the whole of them, but would like a part of them for his customers ; and was allowed to take the plated ware and some of the cutlery, “amounting to about $1200.worth,” paying $1000 “ on account.” At the time of this payment, the defendant said that he would pay the balance and take away the rest of the goods in a few days. The rest of the goods accordingly remained at the store, ready for the defendant, for several days, and until near the time when the plaintiffs were to vacate the store. After disposing of the remainder of the stock, the plaintiffs requested the defendant to pay the balance of the purchase money and take the goods away; and he thereupon proposed that they should take his note on time for the balance. This they declined to do, and gave him notice that, if he did not pay the balance and take the goods away before they vacated the store, they should box them up and store them at his risk and expense ; and they refused to allow him to take them away until he should pay for them. On the day when they vacated the store, they boxed up the goods and removed them to the warehouse of one of the plaintiffs. The defendant was present during the packing of the goods for removal, and made no objection, and said that he should have the money in a few days and would then take them. After they were removed, the defendant asked the plaintiff at whose warehouse they were stored to take an assignment of certain leases as security for the balance of the purchase money; but the plaintiffs declined to accept such collateral security. The plaintiffs always were and now are ready to give up the goods, upon the payment of the balance of the purchase money, but always declined to allow the defendant to take them otherwise; and after making repeated demands on the defendant to comply with the terms of sale, they brought this action.</p> <p>All the goo'ds thus bargained and sold to the defendant were charged to him at the contract prices in the account annexed to the declaration, and he was credited therein with the $1000 paid by him.</p> <p>The judge, being of opinion that the plaintiffs could not recover, under the declaration, for the goods not taken away by the defendant, reported that question, by the consent of the parties, before verdict, for the determination of this court, reserving to the plaintiffs the right to apply to amend the declaration if it should be adjudged insufficient.</p>

<p>Contract on an account annexed for the price of goods sold and delivered by the plaintiff to the defendant. Writ dated February 11, 1870. The case was referred to an auditor, who reported that on the proofs before him the plaintiff was entitled to recover $5816.17, the full amount of the account, all the goods charged in which were sold in 1869, the first item bearing date of August 12 of that year.</p> <p>At the trial in the superior court, before Reed, J., the plaintiff rested his case upon the auditor’s report, and the defendant submitted the following offer of proof:</p> <p>“ The defendant offers to prove that the plaintiff was a wholesale dealer in and seller of goods and merchandise in Boston during all the time in which he claims in this action to have sold the goods, the price of which he sues for; that he had been a wholesale dealer in and seller of goods and merchandise in said Boston for more than two years before the first day of May 1869, and so continued to be after said May 1 till the commencement of this action; that during all said time he sold goods and merchandise in said Boston to the amount of more than fifty thousand dollars in each and every year; that, after said May 1 and before August 12 then next following, the said plaintiff had sold in said Boston goods and merchandise to the value and amount of more than twenty-five thousand dollars ; and that the plaintiff never at any time paid the special tax to the government of the United States provided by the laws thereof to be paid by a wholesale dealei, namely, fifty dollars a year, and never at any time made a return to the assistant assessor appointed by the government of the United States, of his sales each year beyond the amount of fifty thousand dollars a year, as required by the laws of the United States to do; and that the goods, the price of which is sued for in this action, were sold to the defendant by the plaintiff while the plaintiff was pursuing the calling and business of a wholesale dealer, and as part of his said business.”</p> <p>The judge excluded the evidence thus offered, upon the ground that the facts, if proved, would be no defence to the action ; the jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>It 6 no defence to an action brought on a negotiable promissory note, by an indorsee fcr value and before maturity, against the maker, that the plaintiff knew that an oral agreement between the maker and the payee accompanied the making of the note, by virtue of which, since maturity of the note, equities have arisen in favor of the maker, which as against the payee would constitute a good defence.</p>

<p>The responsibility of the drawee, who pays a forged check, for the genuineness of the drawer’s signature, is absolute only in favor of one who has not by his own fault oi negligence contributed to the success of the fraud or to mislead the drawee ‘ and if the payee took the check, drawn payable to his order, from a stranger or other th-"l person, without inquiry, although in good faith and for value, and gave it currency and credit by indorsing it before receiving payment of it, the drawee may recover back the money paid.</p>

Contract against Isaac S. Burrill and Robert A. Backup, for money had and received; with alternative counts in tort for the conversion of a letter and five pieces of gold coin therein contained.

<p>A mechanic constructing articles of furniture under a contract by which his employer furnishes the materials and bench-room, and retaining the articles in his actual possession in the employer’s workshop until their completion, may maintain an action for their conversion, against one who takes them from his possession, claiming under an alleged mortgage from the employer, of the existence of which there is no evidence.</p>

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

Contract by Richard M. J. Grant, Samuel B. Logan and Edward Grant, copartners under the firm of Grant, Logan & Company, on a recognizance taken under the Gen. Sts. o. 124, § 10, upon the application of the defendant Clapp to take the oath for the relief of poor debtors, on his arrest upon an execution in favor of the plaintiffs.

<p>Two ACTIONS OE CONTSACT; the first against Augustus N. Loring and Alonzo W. Putney as sureties on a bond of Joseph L. Bruce, given to dissolve an attachment of goods and estate of Bruce in an action of this plaintiff against him; the second against Bruce as principal and Loring as surety m a recognizance taken under the Gen. Sts. c. 124, § 10. The writ in the first action was dated January 20, 1870 ; in the second action, March 21, 1870.</p> <p>On April 9, 1869, the plaintiff began an action of contract against Bruce by a writ returnable into the superior court for this county at July term 1869, upon which writ goods and estate of Bruce were attached, which attachment he, with these defendants Loring and Putney as sureties, on April 10, 1869, gave bond in the usual form to dissolve.</p> <p>On December 18, 1869, the plaintiff recovered judgment against Bruce in said action, and took out execution December 23, 1869. Upon this execution Bruce was arrested February 8,1870, and on the same day applied to take the oath for the relief of poor debtors and entered into the recognizance, under the Gen. Sts. e. 124, ■§ 10, with the defendant Loring as surety.</p> <p>The plaintiff’s judgment never has been satisfied; and Bruce was defaulted on his recognizance.</p> <p>The two cases were submitted to the determination of the superior court, on statements of the foregoing facts; judgments were ordered thereon for the defendants ; and the plaintiff appealed.</p>

<p>Tort for injuries done to a building owned and occupied by the plaintiffs on the north side of Avon Street in Boston. The defendant was lessee and occupant of an adjoining building on the same street, and suspended what was called a banner-sign, bearing his name upon the banner, across the street, upon a wire rope, one end of which was fastened by an iron bolt to his building, and the other end in like manner to a building on the south side of the street. The sign was made of net-work for the purpose of diminishing its resistance of the wind, and due care was used in its construction and fastening. The lowest part of it was at least twenty feet above the pavement of the street; and it did not interfere with the ordinary enjoyment of the neighboring estates ; but it was hung there in violation of an ordinance of the city of Boston, which rendered the defendant liable to a penalty for each day during which it remained suspended. On September 8, 1869, in what was commonly known as the “ great gale ” of that year, which was a gale of extraordinary violence, the wind blew the sign away, and the .movement of the sign, which remained attached to the rope, jerked the iron bolt out of the build inc on the south side of the street, and hurled it across the street and through the glass of a window in the plaintiffs’ building, thus doing the injuries for which they sought to recover. The plaintiffs’ window was properly constructed, and they were in no way chargeable with negligence.</p> <p>The parties stated the foregoing case for the judgment of the superior court, which ordered judgment for the defendant, and the plaintiffs appealed.</p>

Tort for personal injuries sustained by the plaintiff through being run over by a locomotive engine of the defendants upon a side track of their railroad in the town of Blackstone, by their alleged negligence. . At the trial in the superior court, the defendants offered no evidence; and Lord, J., directed a verdict for them on the ground that upon the plaintiff’s evidence there was a want of due care on his part; which was returned, and the plaintiff alleged exceptions.

<p>Tort against a street railroad corporation for personal injuries alleged to have been sustained by the female plaintiff through the defendants’ negligence.</p> <p>At the trial in the superior court, before Rockwell, J., it appeared that on December 31, 1868, Mrs. Nichols was a passenger on one of the defendants’ horse-cars going from Boston to Somerville ; that, as the car approached the place where she desired to stop, she got up, rang the bell, and went to the rear platform; “ and, as she stated in her testimony, that the car then stopped, and while she was in the act of stepping from the car-step to the ground, the car having stopped still, the car suddenly started, and jerked and threw her down, whereby she was injured.” There was evidence tending to show that neither the driver nor the conductor knew that she was alighting from the car till after she fell. She testified that the conductor was on the front platform, and that he went there a short time before she pulled the bell. The defendants offered evidence tending to show that she went to the rear platform immediately after pulling the bell, and stepped or jumped off the car before it stopped.</p> <p>Upon this evidence, the defendants requested the judge to instruct the jury as follows: “ 1. That if the plaintiff, mider the circumstances, pulled the bell without notice to the conductor, and while he was on the front platform, and then, without waiting for the car to stop, jumped off the car before it stopped and while it was in motion, she could not recover. 2. That if the plaintiff took upon herself the charge of the car, and, without notice to any one, the conductor then being on the car, she rang the bell, and, without the knowledge of driver or conductor, proceeded to get off, she could not recover. 3. That it was the duty of the plaintiff to have notified some one in charge of the car, if she desired to get off, and if she got off without such notice, or without the knowledge of those in charge of the car, she did so at her peril, and cannot recover.”</p> <p>The judge refused to rule in the terms requested; but instructed the jury “that the burden was upon the plaintiffs to prove that the female plaintiff was in the exercise of due care, and the injury was occasioned by the negligence of the defendants, and solely by their negligence; that, if want of care on her part contributed at all to the injury, the plaintiff could not recover; that a very important question was, whether or not the car had stopped when the injury occurred; that, if this had been a car propelled by steam, and if the female plaintiff had stepped off the car before it had stopped, she could not recover; that, in this case of a horse-car, the question must be left to the jury, to decide, upon the whole evidence, whether or not she was in the exercise of due care, and whether or not the injury was caused solely by the negligence of the defendants.” The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Contract against the Boston & Lowell and Nashua & Lowell Railroad Corporations, as common carriers, to recover the value of 900 corn-planters, delivered to them by the plaintiff at Amherst in New Hampshire for transportation to Boston, and destroyed by fire in their freight depot at Amherst before the transportation was begun. Trial in the superior court, before Reed, J., who allowed the following bill of exceptions:</p> <p>“ The defendants contended, and there was evidence tending to show, that the corn-planters were part of a lot of 1000, which the plaintiff was in the act of delivering, and that they were detained at the depot to await the arrival of the remainder of the lot, for the plaintiff’s convenience, and therefore that the defendants were only subject to the liability of warehousemen and not of common carriers. The plaintiff’s evidence tended to show authority and direction from the plaintiff to forward the corn-planters as delivered. The judge instructed the jury (among other instructions not objected to) that, if the defendants had either such authority or direction to forward the corn-planters as delivered, they were liable.” The jury found for the plaintiff and the defendants alleged exceptions to this instruction.</p>

Contract against common carriers for their failure to deliver seasonably at Boston cotton shipped thither by the plaintiff on their steamship at New Orleans.

<p>Contract on an account annexed for services rendered as a school-teacher from September 23,1867, to June 29, 1868. Writ dated February 28, 1870. The answer denied that the plaintiff rendered services for the defendant or by his request, and that he ever promised to pay for them, or in any way became liable for them; and alleged that, if such services were rendered, it was upon the sole request and credit of the defendant’s wife, and while she, as the plaintiff knew, was doing business on her sep orate account, without the defendant’s consent and against his wishes and directions.</p> <p>At the trial in the superior court, before Brigham, C. J., the plaintiff and the defendant were the only witnesses, and theii testimony tended to show that the defendant’s wife kept a private school, “on her own accomit,” in the defendant’s dwelling-house in Boston, and that the services sued for were rendered in the school.</p> <p>The plaintiff testified that the defendant’s wife published the following advertisement concerning the school; and that the defendant gave instruction in music to the pupils in the schoolroom : “ French and English School. Madame Lafitte Rudolph-sen (from Paris) will open a school for masters and misses from five to ten years of age, at her residence, No. 13 Decatur Street, September 23, 1867. The usual English branches will be taught by a competent English teacher, who has been engaged for that purpose. Instruction in the rudiments of music, in vocal culture and solfeggio, will be given by Professor J. F. Eudolphsen, without extra charge.” The defendant testified that he never authorized such an advertisement, or gave any such instruction.</p> <p>The plaintiff admitted “ that she made her contract exclusively with the wife of the defendant; that the wife promised to pay her; that she did not then know, and had not then seen the defendant ; that she expected and understood that she was to look to the defendant’s wife only for her pay, and was not to look to the defendant for it; that the wife had herself made all the payments she had received on account of said services ; and that since the services were completed she had several times asked the defendant’s wife to pay her, and had never at any time requested payment of the defendant, or sent him any bill for her services, or even at any time spoken to him about her pay, or made any claim whatever upon the defendant; ” and there was no evidence tending to qualify any of these admissions. But the plaintiff contended that the defendant was liable to her, by reason of the fact that no certificate of the wife’s business was ever filed in the office of the city clerk, in conformity with the St. of 1862, c. 198,-</p> <p>The judge instructed the jury “ that if the defendant’s wife, the defendant objecting, entered into a sole and separate business, and the plaintiff made a contract with the defendant’s wife in relation to that separate business, with notice that the defendant objected to such separate business, and in making such contract with the wife looked to her for the fulfilment of the same, she could not recover against the husband.” The defendant requested him to instruct them further, “ that if the contract was made with the defendant’s wife only, and upon the sole and exclusive credit of the wife, the defendant would not be liable, although the certificate referred to had not been filed; and that the liability of the husband might be released or waived expressly by the plaintiff, or by her acts and conduct, implying that she would not look to the defendant for her pay.” But the judge declined to give the additional instructions thus requested. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>A wife is not a competent attesting witness to a will which contains a devise to her husband.</p>

<p>A condition, prescribed by a by-law, in the deeds of pews by an incorporated religions society in Boston, which owns its meeting-house in fee simple and is composed exclusively of the successive pewholders, that the grantee shall forfeit the pew to the society if he shall leave the meeting-house without first offering it to them for a certain price, is not repugnant to the grant, nor contrary to the rule against perpetuities, but valid; and if § 6 of the Gen. Sts. c. 30, (Rev. Sts. c. 20, § 4,) does not apply to the society, it is a breach of the condition, if, without making such an offer, he ceases to worship with the society, and to attend any of its meetings, or act therein, and to regard himself as a member of it, and connects himself with another religious society.</p> <p>The provision of the Rev. Sts. c. 20, § 4, (Gen. Sts. c. 30, § 6,) that persons belonging to a religious society shall be deemed to be members until they file with the clerk a written notice declaring the dissolution of their membership, did not apply to an association of proprietors of pews in a meeting-house in Boston, upon their incorporation in 1845 41 subject to all the duties, liabilities and restrictions ” contained in the Rev. Sts. c. 20 , 44 so far as the same are applicable to this corporation,” after having been so organized, for more than a hundred and fifty years, according to the usages and law existing in Boston, that membership of the society ceased with the ceasing to hold a pew, and that the tenure of the pews was on condition that the respective proprietors should forfeit them to the society if they should leave the meeting-house without first offering them to the society for a certain price.</p>

<p>The exclusion of a member of a corporation from speaking or voting, at four successive meetings of the corporation, without its appearing that his ordinary corporate rights were thus restricted otherwise than in the administration of the internal discipline of the corporation under the by-laws or rules of its own government, is not sufficient cause for a mandamus to the corporation to restore him to a full enjoyment of those rights.</p> <p>If the tenure of a pew in the meeting-house of a religious society is on condition that the proprietor shall forfeit it to the society if he leaves the meeting-house without first offering it to them for a certain price, it is a breach of the condition if the pewholder, without making such an offer, and without apparent reason or explanation, uninterruptedly and for a long space of time omits to worship in the meeting-house, manifests no intention of returning, and habitually worships with, and apparently has attached himself to, another religious society in the same city.</p> <p>The holder of a pew in the meeting-house of an incorporated religious society, by a deed upon condition that he should forfeit it to the society by leaving the meeting-house without first offering it to them for a certain price, left the meeting-house without first making the offer, and never made it afterwards. Four years later, the corporation passed a vote declaring the pew forfeited by breach of the condition; and thereafter they excluded him from the meetings of the corporation; and three years after the vote they entered and took possession of the pew, to enforce the forfeiture. But up to the time of their entry they continued to allow him to receive the rent of the pew, and to collect the pew tax from him quarterly; and on the day after the date of the entry they collected from nim the tax due on the pew for the'quarter next preceding that date. Meld, that the breach of the condition was continuous, and was not waived; and that the forfeiture was complete.</p>

<p>IScire facias, on the decree is not the exclusive remedy to enforce payment of arrears of alimony, and such payment may be enforced by process for contempt; but the mere fact that the party from whom it is due refuses to make it, upon demand, though able to do so, is not a sufficient cause for the issue of such process.</p> <p>On the petition of a libellant in whose favor alimony has been decreed, an order of notice may be issued to the libellee, and, upon hearing, the payment of the alimony in arreara be enforced by execution or other appropriate process, and process be granted tc compel the libellee to give security for future payments.</p>

<p>A. spendthrift under guardianship cannot lawfully be arrested on execution in an action of contract against him, under the charge that he has property not exempt from being taken on execution which he does not intend to apply to the payment of the plaintiff's claim; and may obtain his discharge from the arrest, on habeas coiyus.</p>

<p>A plaintiff attached on mesne process the defendant’s equity of redeeming land from a mortgage, which contained a power of sale in case of breach of its condition, with a provision that upon execution of the power the mortgagee should pay to the mortgagor or his assigns any surplus of the proceeds after satisfying the mortgage debt. Pending the suit, the power was executed, and a surplus of proceeds remained in the hands of the mortgagee. The plaintiff recovered judgment; took out execution, and caused it to be levied by a seizure and sale of the land, at which he was himself the purchaser; and demanded of the mortgagee to pay over to him the surplus in his hands, and was refused. Held, that the sale on the execution, and the officer’s deed in accordance therewith, passed no title to the plaintiff; and that he could not maintain either an action at law for money had and received, or a bill in equity, to recover said surplus, brought or filed more than thirty days after he recovered his judgment.</p>

<p>Bill in equity filed January 3, 1871, to redeem real estate in Boston from a mortgage held by the defendant Farnsworth, and to restrain Farnsworth from conveying, and Lawrence J. Riley, the other defendant, from receiving a conveyance of the land, in pursuance of a sale thereof by auction on December 31, 1870, under a power in 'the mortgage deed. An injunction was issued, as prayed for; and at the subsequent hearing, before Wells, J., the material facts appeared as follows :</p> <p>On April 6, 1859, George G. Smith, then seised in fee of the real estate, mortgaged it to Amos Farnsworth, to secure payment of a loan of §3000 in four years, with interest at the annual rate of six per cent., payable semi-annually, by a mortgage deed which contained a power to the mortgagee, his executors, administrators or assigns, “at any time after two months’ continuance of any breach of the foregoing conditions,” to “ sell and dispose of the granted premises at public auction, either with or without order of court, such sale to be in said citj of Boston, without further notice or demand except giving notice of the time and place of sale once in each of three successive weeks in two daily newspapers printed in the county of Suffolk, and in his or their own names, or as the attorney of the. grantor, for that purpose by these presents duly authorized, convey the same absolutely and in fee simple to purchaser or purchasers accordingly, and out of the money arising from such sale to retain all sums then secured by this deed, (whether then or thereafter payable,) together with interest and all costs and expenses, paying the surplus, if any, to the grantor or his assigns, or to. the court, if any, ordering or confirming said sale, and such sale shall forever bar the grantor, and all persons claiming under him, from all right and interest in the premises, at law or in equity, it being mutually agreed that the grantee, or his assigns may purchase at said sale, and that no other purchaser shall be answerable for the application of the purchase money.” This mortgage was duly assigned to the defendant Farnsworth on July 1, 1862.</p> <p>The estate, subject to this mortgage, passed from Smith, by mesne conveyance, to the plaintiffs, on September 15, 1869. The price they paid for it was §7750, less the amount of the mortgage note. They then entered into a written agreement with the defendant Farnsworth, which was acknowledged and recorded on October 6, 1869, for an extension of the time of payment of the mortgage debt for five years from August 19,1869, and an increase of the rate of interest thereon to seven and three tenths per cent, per annum, payable semi-annually on April 6 and October 6, in which agreement it was expressed that nothing therein contained should “ be construed to impair the security of said Farnsworth, his executors, administrators or assigns, under said mortgage, or to affect or impair the lien on the real estate therein described which he has by virtue of said mortgage, nor affect or impair any rights or powers which he may have under the said note and mortgage for the recovery of the mortgage debt, with interest, in case of nonfulfilment of this agreement, or 3>f any of the provisions thereof,” by the plaintiffs.</p> <p>The interest on the mortgage debt, at the increased rate, due ilpril 6, 1870, was paid by the plaintiffs; and afterwards they entered into negotiations at first with the defendant Farnsworth, and subsequently with one Ratshesky, for a loan of $6000 upon the land, with interest at the annual rate of seven per cent. One of the terms of Ratshesky’s agreement to lend the money was, that the Farnsworth mortgage should be cancelled. Pending these negotiations, the second instalment of interest fell due on October 6, 1870, and was not paid. An examination by Ratshesky’s lawyer afterwards in November, and early in December, disclosed what he deemed defects in the plaintiffs’ title.</p> <p>The defendant Farnsworth, in December 1870, more than two months after the default in payment of the interest, proceeded, under the power in the mortgage deed, to sell the estate by auction, giving notice of the time and place of sale only by publishing the following advertisement once a week for three successive weeks in two daily newspapers printed in Boston :</p> <p>“ Mortgage Sale of Real Estate. By virtue of a power of sale contained in a mortgage deed, made by George G. Smith to Amos Farnsworth, dated April 6, 1859, recorded with Suffolk deeds, Lib. 756, Fol. 229, and for breach of condition of said mortgage, will be sold at public auction on the premises hereinafter described, being No. 23 Pine Street in Boston, on the thirty-first day of December current, at three o’clock in the afternoon, a certain lot of land, with the dwelling-house thereon, situated on Pine Street in Boston, in the county of Suffolk, being lot sixteen on Alexander Wadsworth’s plan, recorded with Suffolk deeds, Lib. 471, Fol. 281, containing eight hundred and thirty-three and one quarter square feet, bounded north by Pine Street twenty feet; west on lot fifteen on said plan forty-three feet feet, three inches ; south by land of Gordon, twenty feet, three inches; and east by lot seventeen on said plan, forty-one feet, one inch. By order of the assignee of said mortgage. Boston, December 10,1870.”</p> <p>At the sale, the only persons present were, the defendant Farnsworth; George Morrill, his attorney; the defendant Riley; George G. Smith, the former owner of the estate; and Charles H. Leavitt, the auctioneer. The defendant Riley did not see the advertisement, and was informed of the expected sale by the auctioneer, at whose office he had called on other business. Smith saw the advertisement. The only bidders were Morrill, who bid at the defendant Farnsworth’s request, and Riley. The first bid was $3200, and the bidding advanced from that amount, in sums of $100 or less, to $3850, at which price the estate was struck off to Riley. Morrill’s last bid was within $10 or $20 of $3850. Riley paid the auctioneer $300 on account of the purchase money, and signed and exchanged with him the papers usual at sales of land by auction. The advertisement was read aloud by the auctioneer, in Riley’s presence, before the bidding was begun.</p> <p>Neither of the plaintiffs saw the advertisement, or knew of the sale till after its occurrence, but the plaintiff Roche had reason to believe, from conversations with the defendant Farnsworth on or before the 9th of December, that Farnsworth would advertise the estate for sale, and during the month of December examined newspapers occasionally for the purpose of seeing if it was so advertised. Roche’s place of business was in Boston, within five minutes’ walk from the mortgaged premises. The other plaintiff’s place of business was also in Boston, in the same quarter of the city with the mortgaged premises, but at a greater distance from them than Roche’s. The testimony on both sides showed that the value of the estate was more than $3850.</p> <p>The judge was of opinion, on all the evidence, “ that the plaintiffs were entitled to a decree allowing them to redeem the property from the mortgage, but that the same should be only on condition of full payment, not only of the amount due according to the terms of the agreement extending the time of payment of said mortgage debt, but also of all expenses and losses incurred or suffered by reason of the proceedings of sale commenced, and interrupted by this suit, either on the part of said Farnsworth or the said Riley, defendants herein, so as fully to indemnify them therefor; ” and ordered that the amount thereof should be determined by a master to be appointed for that purpose, and that upon return and acceptance of his report a decree should be drawn and entered accordingly. From this order the defendant» appealed to the full court.</p>

<p>The decision of a justice of this court, refusing a review of a judgment rendered in the superior court, is final, if it involves no question of law.</p> <p>This court will not grant a review of a judgment rendered in the superior court, for the mere reason that the justice presiding at the trial refused a continuance or postponement, in the honest and intelligent exercise of his discretion.</p>

<p>Contract by an inhabitant of Boston against David A. Ward of Concord in New Hampshire, and fifteen others, some of Massachusetts, and others respectively of Maine, New Hampshire and New York, “ all of said parties transacting business under the firm name of the New England Express Company at Boston in the county of Suffolk,” on an account annexed for work done by the plaintiff for said New England Express Company. Writ dated January 25, 1869. The action was discontinued as to several of the defendants. Ward answered, denying all the plaintiff’s allegations, and alleging that the plaintiff was himself a member of the New England Express Company, and the work which he did, if any, was done for himself jointly with the other members, and in part payment of his share in the capital of the company.</p> <p>At the trial in the superior court, before Putnam, J., the plaintiff contended that the defendants were suable as partners ; and to prove the existence of the partnership he introduced written evidence of the association of a joint stock company, under the statutes of New York, by articles dated October 9, 1867; and that the defendant Ward afterwards became a member of the company by subscribing for a number of shares of the capital stock and paying an instalment thereon, and “ acting as such member.”</p> <p>These articles were signed by eight persons, and recited, in a preamble, that the subscribers were desirous “ of forming a joint stock association for the purpose of engaging in and conducting the business of carrying and transporting for hire merchandise, money, coin, bullion, jewels, securities, and property generally and of collecting bills, notes, bonds, accounts, claims, and public and private securities,” and did therefore “ severally promise and agree to and with each other to engage in said business,” and did “ jointly associate ourselves together for the purpose of conducting said business upon the terms and conditions ” in the articles contained.</p> <p>The first article then provided that the association should be known as the “ New England Express Company,” continue in existence fifty years, and “ not cease its existence, or be dissolved or determined by the death or resignation of any officer or stock holder, or by the failure to elect officers, or by the sale or transfer of stock by any stockholder, and all officers shall hold their offices until their successors shall be actually chosen as hereinafter specified, and shall have entered upon the duties of their offices.”</p> <p>The second article fixed the capital stock of the company at the sum of $2,500,000, divided into 25,000 shares of $100 each, subject to be increased by vote of three fourths of the executive committee, or by vote of three fourths of the board of trustees at any regular annual meeting.</p> <p>The third article provided that the officers of the company should be, a president and vice-president, each to be a member of and chosen by and from the executive committee; a treasurer; a secretary; an executive committee, of not more than nine or less than three stockholders; and trustees. It named the first officers of the company, to hold office until successors should be chosen by trustees appointed by the stockholders; and also named nine persons as trustees, to hold office till the first Wednesday of December 1869, “ when their successors shall be appointed at a meeting of the stockholders to be held on that day, and thereafter the trustees shall be chosen annually on the first Wednesday of December of each year by the stockholders of the company, and all other officers shall be chosen by the trustees at their regular annual meeting;” and provided that the number of trustees might be increased by the executive committee to not more than fifty.</p> <p>The fourth article was as follows: “ The stockholders of the company shall not be liable to any person dealing with it, or for its debts or liabilities, or upon any contracts made with or by it, to an amount exceeding the amount unpaid upon stock respectively held by them, and a further amount equal to the amount of stock so held by them respectively; and it shall be the duty of the executive committee, and all other officers and agents of the company, to cause to be inserted in all contracts of every kind, made by the company with all persons with whom it shall deal, a stipulation providing against any greater liability on the part of the stockholders than as above mentioned.”</p> <p>The fifth article gave the executive committee power “ to contract debts and liabilities against the company to an amount not exceeding the funds in the hands of and belonging to the company over and above all indebtedness; ” and provided that “ no officer, agent, employee or stockholder of the company shall contract any debts or liabilities against the company, except upon the written authority of the executive committee limited as aforesaid.”</p> <p>The sixth article intrusted “ the sole management of the business, stock, funds, property and concerns of the company to the executive committee, who shall appoint and remove at will all agents, servants, subordinates and employees whatsoever, necessary to the conduct of the business, and may make by-laws for the government of the company, its officers and agents, not inconsistent with law and these articles, and may call in and demand, from the stockholders and stock subscribers respectively, all such sums of money by them subscribed for stock, at such times and in such payments or instalments as said committee shall deem proper.”</p> <p>The seventh article provided that “ the stock shall be issued in certificates signed by the president and secretary, and countersigned by the treasurer, and be transferable only upon the books of the company in person or by attorney, and upon the person to whom the stock is transferred assuming in writing all the obligations and liabilities of the person transferring the same, as a stockholder, and undertaking and agreeing to conform to these urti des.”</p> <p>The eighth and ninth articles limited the selection of trustees and members of the executive committee from among holders of at least ten shares in the stock.</p> <p>The tenth article provided that “ the executive committee shall from time to time declare and pay to the stockholders such dividends as the profits of the business of the company shall warrant.”</p> <p>And the eleventh article provided for amendments of the articles by concurrent vote of two thirds of the executive committee and a majority of the trustees.</p> <p>The plaintiff also introduced in evidence a “ Prospectus of the New England Express Company," which he proved “ was prepared and issued by the parties to the agreement at the time said agreement was executed.” This prospectus set forth, that the company was formed as a result of a conference of many business men from all parts of New England; that it was designed that the stock should be held by those who had goods to transport, thus saving to themselves the profits of transportation ; that New England afforded the best field in the country for such an enterprise, and it was designed to have the chief business centres represented in the board of trustees; that the success of the enterprise was assured, for the business of the stockholders would make it self-sustaining; that “ the company is organized under the laws of the state of New York, as the laws of that state afford superior facilities for organizing such a company, the plan having been fully and successfully tested in the highest courts as to its legality ; ” that five per cent, on the capital stock would be required to be paid for at the time of subscribing, and the remainder be paid up at convenient times as the business of the company should require; that no individual would be permitted to subscribe for tnore than 100 shares of stock; that the stockholders’ meetings and general meetings of the trustees would be held in Boston cr some other place in New England; and that the office of the company would be located in Boston.</p> <p>The plaintiff also offered in evidence a book of records, kept by Charles H. Stoddard as secretary of the company; and Samuel W. Waldron, one of the original associates, testified “that the book was the one in which were kept the records of the partnership, and of what the partners did at different meetings.” It was recorded in the book, that, at a meeting held by the associates in New York, on October 15, 1867, it was voted that “ we organize ourselves, and such others as shall join hereafter, into a joint stock association, to be known and designated as the New England Express Company, under the laws of New York, and we adopt and sign the articles of association, as submitted and read by the secretary and hereinafter subscribed.”</p> <p>The defendant Ward, “ upon this evidence, contended that under the statutes of New York, and the reported decisions thereon, which were read and may be referred to, this suit would not lie against him until the plaintiff had first brought suit against the New England Express Company, and recovered judgment, and an execution against them on such judgment had been returned unsatisfied, which it was admitted had not been done in this case ; ” and the judge withdrew the case from the jury "and reported it, by consent of the parties, for the determination of the question by this court, before whom it was argued in March 1870.</p>

Contract against Edson C. Eastman and sixteen others, aa “ copartners transacting business at Boston in the county of Suffolk under the firm name of the Hew England Express Company,” on an account annexed for work done and materials furnished in August and September 1868.

<p>Petition by Amos Hilton and Lezin V. Potier, to enforce a mechanic’s lien under the Gen. Sts. o. 150. It was agreed that the respondent was and continues to be the owner in fee simple of the land described in the petition, consisting of four adjoining lots fronting on West Newton Street in Boston, and that he entered into a written contract, dated August 23,1869, with Charles P. Herrick in relation to them, the material parts of which are as follows:</p> <p>“ I, Silas W. Merrill, being the owner in fee of certain lots of land,” describing the lots in question, “ hereby covenant and agree to and with Charles P. Herrick, to advance to him $4000 on each of the lots aforesaid, to be expended and applied as hereinafter specified, by said Herrick, in erecting and constructing a block of four brick houses on the said lots, to wit, $1000 when the foundation is in, $2000 when the second floor of said block is on, $3000 when the roof thereof is on and slated and window frames set, $5000 when the plastering is on and windows all in, $5000 when the whole of said block of four brick houses is completed. I further covenant and agree to and with said Herrick, to sell and convey the aforesaid lots with houses thereon, or any one of said lots with house thereon, to said Herrick, or any person or persons whom he may designate, by good and sufficient deed or deeds, when said Herrick shall pay or cause to be paid to me the sum of $1.50 per square foot for said lot or lots of land, with interest on the same at the rate of seven per centum per annum from August 23, 1869, and also pay or cause to be paid the sum or sums of money advanced to said Herrick as aforesaid, paying interest therefor at the rate of seven per centum per annum on the amount of such advancements from and after the respective dates of said advancements. I also covenant and agree not to sell and convey to any person or persons other than said Herrick or those whom he may designate, for the space of nine months from and after the date hereof.”</p> <p>“ And I, the said Herrick, hereby covenant and agree to build, construct, erect and finish a block of four brick houses, on said four lots of land, said houses to be equally as good as those built by ” another person named, on the same street, “ and to be completed on or before February 1, 1870. I also agree to accept and take the advancement of $4000 on each of the lots, as aforesaid, and pay the interest as aforesaid. I further agree to purchase, or find a purchaser or purchasers for said lot or lots of land with houses thereon, within nine months from and after the date hereof, at the price or on the terms above specified, and also to effect an insurance on the block of houses as shall cover all advancements made me by said Merrill, the same being made payable to him.”</p> <p>“ It is further agreed between the parties, that all hens, if any, shall be discharged before said Herrick shall be entitled to the above payment.”</p> <p>It was further agreed “ that Herrick proceeded under said contract to erect a block of four houses on the land, and employed William F. Badger to erect the stairs in said houses; that Badger employed the petitioners to perform labor in the erection of the stairs, and there is due to Hilton $142, and to Potier $79.75, for said labor performed at the date alleged in the petition,” to wit, between March 19 and April 26,1870; “ and that the petitioners have complied with the provisions of the statute regulating the preservation and enforcement of hens.”</p> <p>Upon these facts the superior court ordered judgment for the respondent, and the petitioners appealed.</p>

Petition to enforce a mechanic’s lien under the Gen. Sts. c. 150, for labor performed and furnished by the petitioner in erecting twenty houses on a lot of land in Boston under an agreement with the respondent Dexter. On the facts which appeared at the trial in the superior court, Lord, J., ruled that the petition could not be sustained, and reported the case which is stated in the opinion.

Action on the Gen. Sts. c. 137, for possession of a parcel of real estate situated on a corner of Tremont and Winter Streets in Boston. Writ dated December 22,1869. The case was submitted to the judgment of the court on a statement in which the material facts were agreed as follows : The plaintiffs are owners of the premises ; and the defendants are their tenants under a lease thereof dated January 1, 1867, foi ten years from that date.

Contract to recover the rent due for the months of January and February 1870, under the lease of a tenement in Boston, made by the plaintiff to the defendant June 1,1869 for the term of fifteen months, for a rent payable monthly. Writ dated March 2, 1870.

Petition for a writ of certiorari to quash proceedings of the street commissioners of Boston sustaining a refusal of the assessors of that city to abate a tax assessed against the petitioner as trustee under the will of Francis Amory.

<p>As between a tenant of real estate for life and the remainderman, an assessment thereon for a betterment occasioned by a public improvement is an incumbrance, to which the tenant for life must contribute to the extent of interest during his life on the amount paid, and at his death the remainderman bear the charge of the principal.</p> <p>A testator devised a dwelling-house and other estate in trust to pay three fifths of the income to his daughter, and two fifths to a charitable corporation, during her life, and on her death the capital of the fund to the corporation, and provided that she might live in the dwelling-house and be charged a specified low rent against her share of income. During her occupation of the dwelling-house under the devise, an assessment was laid on it for a betterment occasioned by a public improvement. Held, that the trustee should pay the assessment out of the capital of the fund, and so long as the daughter should live in the house charge interest to her on the amount paid, and distribute this interest between her and the corporation by allowing her to retain three fifths and collecting and paying to the corporation two fifths thereof.</p>

<p>Petition to the superior court for a jury to revise a betterment assessed by the board of aldermen of the city of Boston on land of the petitioner, under the St: of 1866, c. 174.</p> <p>At the trial in the superior court, before Brigham, C. J., it appeared that Charles Ewer, by deed dated April 18, 1826, and reciting that by divers deeds of conveyance of even date therewith he had conveyed to Charles Wells and eight others, certain parcels of real estate in Boston, in a new court called Avon Place, and that he was owner of a parcel of land situate at the southeasterly end of said Avon Place, bounded northeasterly by land of Samuel P. Gardner, southeasterly by land of William Prescott, southwesterly by land of said Ewer, and northwesterly by Avon Place, did “grant, bargain, sell and convey unto said Wells ” and the eight others, “ and to their heirs and assigns, and to all other persons who may hereafter become owner® of the several premises abutting on said Avon Place, as the same is now laid out,” “ as an easemem appurtenant to said premises, the use of said parcel of land, for light, air, and as an ornament to said court said parcel of land to be forever kept open pud used as a garden, or for the purpose of extending said court to the easterly line of said Prescott’s land, of the width of thirty-four feet, two inches, being the present width of said court; but for no other uses or purposes whatsoeverj this instrument is not, however, to be construed to affect said Ewer’s right of soil in said parcel of land; ” and covenanted that “ said parcel of land shall forever be kept open as aforesaid, to and for the purposes aforesaid, and none other.”</p> <p>By deed dated January 8,1831, Ewer conveyed to William Prescott and Samuel P. Gardner the parcel of land described in the foregoing deed, and “ also a right of way from said piece of land over said Avon Place, and also from the lot on which the house of said Prescott stands, bounding northwesterly on said piece of land and southwesterly on Bedford Street, and from the lot on which the house of said Gardner stands bounding southwesterly on said piece of land and northwesterly on Summer Street, and from each and every part of said lots to Washington Street, as appurtenant to said lots, to be held and enjoyed in common and equally with the others on said Avon Place; ” and covenantee that the land was free of incumbrances “ excepting certain restrictions contained in a deed to Charles Wells and others; ” and warranted “said piece of land subject to said restrictions and said right of way ” to the grantees.</p> <p>Samuel P. Gardner devised to the petitioner (who was his son) his real estate in Summer Street, “ together with all my right in a piece of land at the eastern end of Avon Place, adjoining my said real estate, which piece of land I bought with William Prescott, Esq., in the-year 1831, to get a back passageway to our respective estates.”</p> <p>By orders of the board of aldermen of Boston, under the St. of 1866, c. 174, Avon Place was extended southeasterly to Chauncey Street, and an assessment for the expense of such extension was laid on the petitioner’s land on Summer Street extending back to A yon Place. The petitioner contended that he had right of way from this land before the extension of Avon Place, on, to and over said Place to Washington Street, under the devise from his father.</p> <p>On the assessment of the betterment, the petitioner received notice thereof, dated April 5,1869; and on April 23, 1869, he notified the board of aldermen that he wished an apportionment thereof as provided in the St. of 1866, c. 174, § 6. The apportionment was made, but no part of the assessment was ever paid.</p> <p>The judge ruled that the petitioner had no right of way from his estate on Summer Street to Avon Place over the land conveyed to his father and Prescott by Ewer, and also by reason of the apportioning of the assessment was estopped to call in question the amount thereof; directed a pro formd verdict for the respondents; and reported the case for the revision of this court.</p>

<p>In a partition by order of court, of real estate held in common, a strip of land was appropriated in the middle of the estate “as a street or passageway to be held in common and undivided by the parties, abutters thereon, their heirs and assigns,” and all the lots set off were bounded on this passageway. Held, that the fee in the soil of the strip did not remain in common, but became parcel of each of the lots set off.</p>

<p>A. went with B.’s agent to see a lot of land which B. had for sale. The agent, in reply to A.’s inquiry, said that there were between 40,000 and 50,000 square feet. A. agreed to buy the land at a certain price per foot, paid the agent a sum on account of the sale, and took a receipt therefor, which stated the terms of sale, but not the area of the land. The land turned out to contain 66,000 square feet; and on that account A. refused to accept a deed. Held, that he could not recover back the sum which he paid to the agent.</p>

Contbact by the Hungerford National Bank, alleged in the writ to be “ a corporation duly established by law at Adams in the state of New York,” on two promissory notes signed by the defendants, each “ payable at Hungerford National Bank, Adams,” to the order of Rufus P. White, and by him indorsed to the plaintiffs. The answer denied all the allegations of the declaration.

Contract on a bank check, of the face of which the following is a copy: The case was submitted to the judgment of the superior court, and, on appeal, of this court, on facts agreed substantially as follows : The iEtna Mills owed Chamberlin $19.20 for an order accepted by them payable to him or order, and Chamberlin indorsed the order to the plaintiff, who requested the defendant to pay it, whereupon the defendant, who was the treasurer of the iEtna Mills and authorized to…

Contract against Nathan W. Bridge, John R. Dow and Edwin Johnson, on a judgment for $8000, recovered against them on April 80, 1852, in the district court of the United States for the district of Massachusetts. Writ dated October 18, 1869.

Tort for an alleged libel charging the plaintiff with fraud in procuring the alteration of a custom-house return, under pretence of correcting a mistake, and in order to evade the payment of duties. The declaration is more fully stated in 98 Mass. 224. The answer justified the publication.

Contract, brought December 18, 1869, on a bond dated December 19,1864, executed by the Agawam Woollen Company as principal, and Joseph S. Potter, John Wetherbee, Jr., and John W. Beals as sureties, conditioned that the company would keep and perform the final decree in a cause in equity then pending in the circuit court of the United States for the first circuit, within and for the district of Massachusetts, in which Eben D. Jordan was plaintiff and the company defendants,…

Contract on a bond signed by the defendant Henry 0. Clarke, as principal, and the defendant John Firth and Henry Goulding, as sureties, conditioned for the faithful performance by Henry O. Clarke of his duties as executor of the will of Hannah B. Mason. Henry Goulding died, and the defendants William P. Goulding and Dwight Foster were appointed his executors. The suit was brought on behalf of William Clarke. Writ dated September 16, 1869.

Bill of interpleader filed by the trustees under the marriage settlement of Caroline M. Dehon, against Caroline I. Hill, Francis Bacon and William Dehon, praying that*they might interplead as to their respective rights and claims in and to the trust estate.

<p>Bill in equity, by Caroline I. Hill and her husband, and William Dehon, for specific performance of a contract of the defendant to buy from them nine undivided thirty-second parts of a parcel of land in Boston. The case, as it appeared from the bill and answer, on which it was reserved by the chief justice for the determination of the full court, was as follows :</p> <p>Caroline M. Dehon, wife of William Dehon, being owner in fee of one undivided half of said parcel, made her will in 1858, by which she devised the said undivided half to her husband for life, and at his decease the remainder to her children, in fee, in equal proportions, “ and if either shall, at the time of their father’s death, have deceased, leaving issue, such issue shall take their parents’ portion of such estate.” The will contained a-residuary devise to her husband. After making her will she became owner in fee of one undivided thirty-second part of said parcel. She died in 1859, leaving three children, namely, the plaintiff Caroline I. Hill, and two sons, one of whom died unmarried, devising and bequeathing all his estate to his brother and sister.</p> <p>The defendant entered into a contract with the plaintiffs to buy nine undivided thirty-second parts of the parcel from them, but refused to accept the deed on the ground that they could not give a good title.</p>

Petition for a decree to compel a sale of real estate held by John T. Heard and Edward D. Sohier, as trustees under the will of John W. Trull.

<p>Bill' in equity filed by the trustees under the will of Thomas Thompson, praying for instructions. The case, as it appeared from the bill and answer, on which it was reserved by the chief justice for the determination of the full court, was as follows :</p> <p>Thomas Thompson died in 1869, leaving a will dated in 1867, by which, after giving his wife Elizabeth a farm in Medford and his household furniture, and giving certain small legacies and annuities, he made the following disposal of the residue of his estate: “I give, devise and bequeath all my lands, tenements and hereditaments, and all my estate and property, real, personal or mixed, of which I shall die seised or possessed, or to which I' may have any claim or be in any manner entitled at the time of my decease, not otherwise herein given, devised or bequeathed, to William Minot, Jr., and James Connor, to hold the same as joint tenants in fee, but upon the following trusts, viz.: to take, hold and manage the real and mixed estate, and to invest the personal ; and, after paying for repairs, taxes, insurance and all other necessary charges, including the annuities hereinbefore given, to pay over the net income of the trust fund so constituted to my aforesaid wife Elizabeth, during her natural life, to her sole and separate use and benefit,” and after her death to apply the net income to charitable purposes. He gave his trustees power to sell any real estate.</p> <p>At the dates of the will and of his death, the testator had no heirlooms, monuments in churches, or anything that could properly be called mixed property. But at those dates he had a lease» hold estate in Boston, which was the residue of a term of twenty years from July 1, 1858; by the terms of the demise the lessee had to pay an annual rent of $2500, with taxes, assessments, insurance and repairs; the estate was appraised in the inventory at $7500; and the gross rent was $4950, and the net income $1225. The testator also, at the said dates, had a leasehold estate in New York, which was the residue of a term of twenty-one years from May 1, 1865, at a ground rent of $425 a year; the lease of this land contained a provision for renewal; and on the land a house had been erected, belonging to the testator, in which he lived up to the time of his death. He left no other leasehold estates. The trust fund was composed of real estate appraised at $435,839, and personal estate valued at $124,736. The widow claimed the income of the leasehold estate in Boston in specie.</p>

<p>A pecuniary legacy carries interest from the time when it is due by the terms of the will or the rules of law, although the executor has not at that time assets available for the administration of the estate, and is prevented from administering by impediments interposed by the legatee, and although the legatee has made no demand for the legacy.</p> <p>The time from which interest is to be allowed on a legacy is not postponed by a provision in the will that the legacy shall be paid “ next after my lawful debts,” nor by a provision that it shall be paid “ as soon as the same can be conveniently done from sales and collections of my property without sacrifice.”</p> <p>The fact that debts have not been paid is no defence to an action for a legacy, if there is no insufficiency of assets.</p> <p>The statute of limitations is no defence to an action for a legacy, so long as the executors hold the assets of the estate.</p> <p>A testator bequeathed to his wife a certain sum per day, payable weekly, monthly or quarterly, to be in lieu of dower; and she died within a year from his death. Meld, in an action by her administrator, that interest should be allowed from the expiration of the year, upon the amount due her at her decease.</p> <p>Legacies which the testator has directed to be paid within three years from the date of the probate of his will do not begin to carry interest till after the three years.</p> <p>The fact that a minor had no guardian is no reason for disallowing interest on a legacy to him, if the executor has not paid the legacy into court, and has not been prevented or delayed in making payment by the want of a guardian.</p> <p>Compound interest is not allowable on a legacy, if it does not appear that the failure to pay arose from the fault of the executor.</p>

Bill oe interpleader filed by Charles G. Loring and Caleb W. Loring as trustees under the last will of Joshua Blake, and by Caleb W. Loring as executor of the will of Sally Blake, widow of Joshua Blake.

<p>¿. testator, by his will, gave his real estate to his wife for life, " at her decease to be equally divided among my children as hereinafter directed,” and after several legacies gave the residue of his estate, real and personal, to trustees in trust to manage the personal property, and pay the income thereof to his children in equal shares, and in case of the death of any of his children without issue then the income so given to be divided among the survivors, but in case his children should leave issue, then the capital of such deceased child’s share to be divided among such issue, the shares of income belonging to his daughters to be free fiom their husbands control; and he directed his trustees to sell his real estate as suon after his wife’s death as they might deem proper, and also all the personal property then held by them in trust, and divide the same equally among his children, or their heirs, as the case might be, “ retaining only in trust, and for the purposes before mentioned, the several shares belonging to such daughter or daughters as may then be alive.” The testator left a widow and sons and daughters; the widow died; and the trustees sold the real estate. Held, that a son was not entitled to the principal of his share in the proceeds of the real estate, so long as he had brothers or sisters alive; and that on the death of a son without issue his share in the real estate passed to his surviving brothers and sisters.</p>

Replevin of clothing and furniture against George W. White, Jr., Gerard C. Tobey, John W. Beals and Thomas Hussey. Writ dated May 11,1868.